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    "fold_1": {
        "115651329": "REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 92/2015 JAGE RAM & ORS. ..Appellants Versus STATE OF HARYANA ..Respondent J U D G M E N T R. BANUMATHI, J. This appeal is preferred against the judgment dated 19.8.2011 passed by the High Court of Punjab and Haryana in Criminal Appeal No.181 SB of 2000, whereby the High Court partly allowed the appeal filed by the appellants thereby confirming the conviction of the appellants with certain modifications. 2. Briefly stated, case of the prosecution is that on the fateful day i.e. 18.11.1994, at about 8.00 A.M. in the morning the complainant Jagdish (PW-5) along with his two sons namely Sukhbir and Mange Ram (PW-6) were busy in cutting pullas (reeds) from the dola of their field. At that time, Jage Ram (A-1) and his sons Rajbir Singh @ Raju (A-2), Rakesh (A-3) and Madan (A-4) armed with jaily, pharsi and lathis respectively, entered the land where the complainant was working with his sons and asked them not to cut the pullas as it was jointly held by both the parties. Wordy altercations ensued between the parties and Jage Ram insisted that he would take away the entire pullas. In the fight, the accused persons started inflicting injuries to the complainant, and his sons Rajbir @ Raju (A-2) gave a pharsi blow on the head of Sukhbir, Jage Ram (A-1) caused injury to Jagdish (PW-5) with two jaily blows. Additionally, Madan and Rakesh attacked the complainant with lathi blows on shoulder and left elbow respectively and caused several other injuries to the complainant party. Jagdish and his injured sons raised alarm, hearing which Rajesh and Usha came to rescue them and on seeing them, the accused persons fled away. 3. The injured witnesses were taken to the Primary Health Centre, Taoru where Dr. Pardeep Kumar, Medical Officer, medically examined the injured persons. Injured Sukhbir was vomiting in the hospital and later on he was referred to General Hospital, Gurgaon as his condition deteriorated. A CT scan disclosed that large extra-dural haematoma was found in the frontal region with mass effect and Sukhbir needed urgent surgery and he was operated upon and the large extra-dural haematoma was removed. Dr. Pardeep Kumar (PW-2) also examined the other injured persons, PW 5-Jagdish and PW 6- Mange Ram. 4. Statement of Jagdish was recorded, based on which F.I.R. was registered at Police Station Taoru, Gurgaon under Sections 323, 324, 325 and 307 read with Section 34 IPC. PW 8-Ramesh Kumar (ASI) had taken up the investigation. He examined the witnesses and after completion of investigation, challan was filed under Sections 307, 325, 324 read with Section 34 IPC. In the trial court, prosecution examined nine witnesses including Jagdish-PW5, Mange Ram-PW6 and Dr. Prem Kumar-PW2 and Dr. HiIol Kanti Pal-PW9, Neuro Surgeon, PW8-investigating officer and other witnesses. The accused were examined under Section 313 Cr.P.C. about the incriminating evidence and circumstances. First accused Jage Ram pleaded that on the date of occurrence-complainant party Jagdish and his sons Mange Ram and Sukhbir forcibly trespassed into the land belonging to the accused and attempted to forcibly cut the pullas. Jagdish further claims that he along with Rakesh caused injuries to the complainant party in exercise of right of private defence of property. He has denied that Rajesh and Usha had seen the incident. Raju (A-2) and Madan (A-3) stated that they were not present on the spot and they have been falsely implicated. Rakesh (A-4) adopted the stand of his father Jage Ram. 5. Upon consideration of oral and documentary evidence, the learned Additional Sessions Judge vide judgment dated 17.2.2000 convicted all the accused persons under Sections 307 and 325 IPC and sentenced them to undergo rigorous imprisonment for five years and one year respectively and a fine of Rs. 500/- each with default clause. Aggrieved by the said judgment, the accused-appellants filed criminal appeal before the High Court of Punjab and Haryana. The High Court vide impugned judgment dated 19.8.2011 modified the judgment of the trial court thereby convicted Jage Ram (A-1) under Section 325 IPC and sentenced him to undergo rigorous imprisonment for one year, convicted second accused Rajbir @ Raju under Section 307 IPC and imposed sentence of imprisonment for five years as well the fine of Rs.500/- was confirmed by the High Court. Sentence under Section 325 IPC (two counts) was modified as the sentence under Section 323 IPC and he was sentenced to undergo six months rigorous imprisonment. Both the sentences were ordered to run concurrently. High Court modified the sentence of Madan (A-3) Rakesh (A-4) under Section 323 IPC and sentenced them to undergo rigorous imprisonment for six months (two counts) respectively. In this appeal, the appellants assail the correctness of the impugned judgment. 6. Ms. Vibha Datta Makhija, learned Senior Counsel appearing for the appellants contended that the evidence of the witnesses suffers from material discrepancy and is self-contradictory. It was submitted that injured witness Sukhbir was not examined in the court and neither CT Scan nor x-ray nor operational notes of Sukhbir were produced before the court and in the absence of such material evidence, courts below erred in convicting the second accused under Section 307 IPC. Additionally, the learned counsel contended that the defence plea of private defence was not considered by the courts below in proper perspective. 7. Per contra, learned counsel appearing for the respondent-State contended that the evidence of all the witnesses satisfactorily establishes the overt act of the accused persons and Jagdish (PW-5) and Mange Ram (PW- 6) being the injured witnesses, the veracity of these witnesses cannot be doubted. It was submitted that the medical evidence sufficiently corroborated the oral evidence and the prosecution has established the intention of the 2nd accused in causing attempt to commit murder of Sukhbir and in appreciation of the evidence, courts below recorded concurrent findings convicting the second accused under Section 307 IPC and the same warrants no interference. 8. We have carefully considered the rival contentions and gone through the impugned judgment and perused the materials on record. 9. As it emerges from the evidence, complainant Jagdish (PW-5) and his two sons Sukhbir and Mange Ram were cutting pullas. The accused party went there and asked them not to cut the pullas. In the wordy altercation, second accused Rajbir @ Raju gave pharsi blows on the head of Sukhbir. PWs 5 & 6 have clearly spoken about the overt act of the accused that A-1 Jage Ram attacked and caused injury to PW-5 Jagdish with jaily blows and that second accused Rajbir @ Raju attacked on the head of Sukhbir with pharsi. They have also stated that Madan and Rakesh caused injuries to PW5-Jagdish with lathi on shoulder and left elbow respectively. PW 2- Dr. Pardeep Kumar in his evidence stated that he has examined PWs 5 and 6 and noted the injuries on the body of PWs 5 and 6 and issued wound certificates. Evidence of PWs 5 and 6 is amply corroborated by medical evidence. PWs 5 and 6 being injured witnesses, their evidence is entitled to great weight. Cogent and convincing grounds are required to discard the evidence of injured witnesses. In the light of the fact that PWs 5 and 6 were injured witnesses, courts below tested their evidence for its credibility and recorded concurrent findings that PWs 5 and 6 are trustworthy witnesses. We find no reason to take a different view. 10. Appellants have raised the contention that the prosecution failed to adduce evidence that A-2 Rajbir attempted to commit murder of Sukhbir. It was submitted that injured person Sukhbir was neither examined nor medical evidence like CT Scan, x-ray and operational notes and Sukhbir were produced to corroborate the oral evidence and while so courts below erred in convicting second accused Rajbir @ Raju under Section 307 IPC. 11. Dr. Pardeep Kumar-PW-2, who examined Sukhbir found during his medico-legal examination a lacerated wound in the middle of the top of the skull. Injured-Sukhkbir was found vomiting in the hospital and he was examined by a Neuro Surgeon Dr. Hilol Kanti Pal (PW-9) of Safdarjung Hospital, Delhi on 19.11.1994, i.e. the day after the incident. PW-9 has stated that Sukhbir was unconscious since 2.00 P.M. on 18.11.1994 and was deeply comatose with irregularity of pupils and a laceration was diagnosed on the right front parietal region. Further, PW-9 has stated that during the CT scan, it was revealed that a large extra-dural haemotoma was present in the frontal region with mass effect and to avoid further deterioration of his condition, he was operated upon by frontal trephine craniopmy an haemotoma measuring about 125 ml was evacuated. PW-9 stated that had not the operation been conducted on Sukhbir and had not the extra- dural haemotoma removed by operation urgently, the head injury caused to Sukhbir would have caused his death. As noted by the High Court, it is thus brought on evidence that had not surgical assistance been given to Sukhbir, he would have definitely died. 12. For the purpose of conviction under Section 307 IPC, prosecution has to establish (i) the intention to commit murder and (ii) the act done by the accused. The burden is on the prosecution that accused had attempted to commit the murder of the prosecution witness. Whether the accused person intended to commit murder of another person would depend upon the facts and circumstances of each case. To justify a conviction under Section 307 IPC, it is not essential that fatal injury capable of causing death should have been caused. Although the nature of injury actually caused may be of assistance in coming to a finding as to the intention of the accused, such intention may also be adduced from other circumstances. The intention of the accused is to be gathered from the circumstances like the nature of the weapon used, words used by the accused at the time of the incident, motive of the accused, parts of the body where the injury was caused and the nature of injury and severity of the blows given etc. 13. In the case of State of M.P. vs. Kashiram & Ors.[1], the scope of intention for attracting conviction under Section 307 IPC was elaborated and it was held as under:- \"13. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The section makes a distinction between the act of the accused and its result, if any. The court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. Therefore, an accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt. [pic] 14. This position was highlighted in State of Maharashtra v. Balram Bama Patil, (1983) 2 SCC 28, Girija Shanker v. State of U.P.(2004) 3 SCC 793 and R. Prakash v. State of Karnataka (2004) 9 SCC 27. * * * 16. Whether there was intention to kill or knowledge that death will be caused is a question of fact and would depend on the facts of a given case. The circumstances that the injury inflicted by the accused was simple or minor will not by itself rule out application of Section 307 IPC. The determinative question is the intention or knowledge, as the case may be, and not the nature of the injury.\" See State of M.P. v. Saleem (2005) 5 SCC 554 pp. 559-60, paras 11-14 and 16. 13. \"6. Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed, etc. This position was illuminatingly stated by this Court in Sevaka Perumal v. State of T.N.(1991) 3 SCC 471.\" 14. Having regard to the weapon used for causing the head injuries to Sukhbir, nature of injures, situs of the injury and the severity of the blows, courts below recorded concurrent findings convicting the 2nd appellant under Section 307 IPC. In our considered view, the conviction of the second appellant Rajbir @ Raju under Section 307 IPC is unassailable. 15. Learned counsel for the appellants contended that the second appellant is in custody for more than three years and since the occurrence was in the year 1994, prayed for reduction of the sentence imposed on the second appellant to the period already undergone. Placing reliance upon the judgment of this Court in Hari Singh vs. Sukhbir Singh & Ors[2]., learned counsel for the appellants additionally submitted that in terms of Section 357 (3) Cr.P.C. that the compensation may be awarded to the victim and the sentence be modified to the period already undergone. 16. For the conviction under Section 307 IPC, courts below imposed upon the 2nd appellant rigorous imprisonment of five years, while imposing punishment, courts have an obligation to award appropriate punishment. Question of awarding sentence is a matter of discretion and the same has to be exercised by the courts taking into consideration all the relevant circumstances. What sentence would meet the ends of justice would depend upon the facts and circumstances of each case and the courts must keep in mind the gravity of the offence, motive for the crime, nature of the offence and all other attendant circumstances. Vide State of M.P. vs. Bablu Natt[3]; Alister Anthony Pareira vs. State of Maharashtra[4] and Soman vs. State of Kerala[5]. 17. In the light of the above, considering the case in hand, the occurrence was of the year 1994 when the complainant party was cutting pullas, the accused asked them not to cut the pullas which resulted in the wordy altercation. In the heat of passion, the accused have caused injuries to the complainant party. The second accused Rajbir @ Raju is in custody. He surrendered on 5.1.2012 and is stated to be in custody since then, for more than three years. Having regard to the facts and circumstances of the case, in our considered view, the period of sentence of five years may be reduced to three years apart from directing the second appellant Rajbir @ Raju to pay substantial compensation to injured- Sukhbir. 18. As noticed above, injured-Sukhbir sustained grievous head injuries and was deeply comatose and was in a state of shock and trauma. Learned counsel for the injured-witness submitted that for quite some time injured-Sukhbir was unconscious and thereafter suffering from mental trauma. Having regard to the nature of injuries sustained by Sukhbir and the period of treatment and other circumstances, we are of the view that, it would be appropriate to direct second appellant-accused Rajbir @ Raju to pay Rs.7,50,000/- as compensation to the injured-Sukhbir. When the matter came up for hearing on 14.10.2014, learned counsel for the appellants informed the Court that he had offered Rs.5,00,000/- by way of demand draft towards compensation to the injured-Sukhbir in the presence of the Sarpanch of the village which he has refused to receive the same. The said amount of Rs.5,00,000/- is now kept in fixed deposit in the Registry of this Court. 19. For inflicting blows on PW-5 Jagidsh with jaily A-1 Jage Ram was convicted under Section 325 IPC and sentenced to undergo rigorous imprisonment for one year. A-3 and A-4 have also given lathis blows to PW- 5 and were convicted under Section 323 IPC and sentenced to undergo rigorous imprisonment for three months by the High Court. Having regard to the fact that the occurrence was of the year 1994, considering the other facts and circumstances of the case, the sentence of imprisonment imposed on Jage Ram (A-1), Madan (A-3) and Rakesh (A-4) is reduced to the period already undergone by them. 20. The conviction of A-1 under Section 325 IPC, A-3 and A-4 under Section 323 IPC is confirmed and the sentence is reduced to the period already undergone by each of them. The conviction of second accused Rajbir @ Raju under Section 307 IPC is confirmed and the sentence of imprisonment of five years is reduced to the period already undergone and additionally the second accused shall pay a compensation of Rs.7,50,000/- to the injured witness-Sukhbir. Compensation amount of Rs.5,00,000/- deposited in this Court by the 2nd appellant shall be paid to the injured witness-Sukhbir. The second accused Rajbir @ Raju shall deposit the balance compensation amount of Rs.2,50,000/- before the trial court within three months from the date of this judgment and on such deposit, the same shall also be paid to the injured witness-Sukhbir. On failure to deposit the balance compensation, the second appellant Rajbir @ Raju shall undergo default sentence of one year. 21. The appeal is allowed to the above said extent. Second appellant Rajbir @ Raju is ordered to be released forthwith if not required in any other case. Bail bonds of accused A1, A3 and A4 shall stand discharged. ...........................J. (V. Gopala Gowda) ...........................J. (R. Banumathi) New Delhi;January 28, 2015 ITEM NO.1A-For JUDGMENT COURT NO.12 SECTION IIB S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Criminal Appeal No(s). 92/2015 arising from SLP(Crl.) No. 488/2012 JAGE RAM & ORS. Appellant(s) VERSUS STATE OF HARYANA & ANR. Respondent(s) Date : 28/01/2015 This appeal was called on for pronouncement of JUDGMENT today. For Appellant(s) Mr. Gagan Gupta,Adv. For Respondent(s) Mr. Ajay Bansal, AAG Mr. Kamal Mohan Gupta,Adv. Mr. Gaurav Yadav, Adv. Mr. Akshat Goel,Adv. Hon'ble Mrs. Justice R. Banumathi pronounced the judgment of the Bench comprising of Hon'ble Mr. Justice V. Gopala Gowda and Hon'ble Mrs. Justice R. Banumathi. The appeal is allowed in terms of the signed reportable judgment. Second appellant Rajbir @ Raju is ordered to be released forthwith if not required in any other case. Bail bonds of accused A1, A3 and A4 shall stand discharged. (VINOD KR. JHA) (MALA KUMARI SHARMA) COURT MASTER COURT MASTER (Signed Reportable judgment is placed on the file) ----------------------- [1] [2] AIR 2009 SC 1642 = (2009) 4 SCC 26 [3] [4] (1988) 4 SCC 551 [5] [6] (2009) 2 SCC 272 [7] [8] (2012) 2 SCC 648 [9] [10] (2013) 11 SCC 382",
        "37849282": "1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.2998 OF 2010 THE MANAGING DIRECTOR (SHRI GRISH BATRA) M/S.PADMINI INFRASTRUCTURE DEVELOPERS (I) LTD. \u2026 APPELLANT(S) VERSUS THE GENERAL SECRETARY (SHRI AMOL MAHAPATRA) ROYAL GARDEN RESDIENTS WELFARE ASSOCIATION \u2026 RESPONDENT(S) WITH CIVIL APPEAL NO. 4085 OF 2010 JUDGMENT V. Ramasubramanian, J. 1. Both the consumer (who was the complainant) as well as the opposite party before the National Consumer Disputes Redressal Commission, have come up with these appeals, the Signature Not Verified Digitally signed by Jayant Kumar Arora Date: 2021.09.28 former aggrieved by the rejection of some of the reliefs sought and 16:36:46 IST Reason: the latter, challenging the reliefs granted in favour of the consumer. 2. We have heard the learned counsel appearing on both sides. 3. A residential apartment complex was promoted by M/s Padmini Infrastructure Developers (India) Ltd. (hereinafter referred to as \u2018the opposite party\u2019), on a land allotted by New Okhla Development Authority (\u2018NOIDA\u2019 for short). It appears that the opposite party constructed about 282 apartments and offered them for sale. The purchasers were put in possession during the period from 1998\u00ad2001, but the completion certificate itself was issued only in December, 2001. 4. The purchasers of flats formed themselves into an association known as Royale Garden Residents Welfare Association and got it registered on 30.09.2003 under the Societies Registration Act, 1860. 5. The Residents Welfare Association entered into an agreement on 15.11.2003 with the opposite party for taking over the maintenance of the apartment complex. Thereafter, the Residents Welfare Association ((hereinafter referred to as the \u2018complainant\u2019), filed a consumer complaint in Complaint No.9 of 2007 before the National Consumer Disputes Redressal Commission. 6. The reliefs sought by the complainant before the National Commission were as follows:\u00ad \u201c1. to pay the monthly maintenance charges for unsold flats amounting to Rs. 9,05,810/\u00ad 2. to complete the water softening plant and make it operational. 3. to complete fire fighting equipments and make the same operational and to obtain safe working certificate from Fire Safety Department of NOIDA and handover the same to the Complainant. 4. to furnish and equip a second health club for which space is available in half portion of basement of Tower Blue Heaven\u00ad2. 5. to complete a second swimming pool and get cement plastered and white washed the stilts. 6. to provide furnished space for a, Club House in the basement of Eden Tower which is existing but locked. 7. to get the rented portion of the terrace (roof) vacated meant for the resident of Tower Eden of the Complainant rented out by the Opposite Party to HUTCH (P) Limited and earned rent after on 15.11.2003 to be returned to RWA with 24% interest. 8. not to sell or rent out the remaining flats about 45 till the facilities mentioned above are provided to the Complainant. 9. to direct the OP not be sell stilt and open car parking to future or present purchasers. 10. to pay the cost to the Complaint and damages for harassment mental torture, agony etc. caused to the Complainant by the OP. 11. to pass any other or further orders which this August Commission deems fit in the circumstances of the case to meet the ends of justice.\u201d 7. The complaint was resisted by the opposite party both on merits and on the ground of limitation. The opposite party also claimed that the Agreement dated 15.11.2003, entered into with the complainant contained an arbitration clause and that whatever facilities/amenities were promised at the time of promotion of the complex, have been put in place. 8. The National Commission by its interim order dated 04.06.2008, appointed a local Commissioner, to inspect the systems/facilities relatable to the reliefs claimed in prayer clause nos. 2 to 6 of the complaint and to submit a report. The said Commissioner submitted a report on 08.07.2008 after making a local inspection, in the presence of the representatives of both the parties. 9. Accepting the report of the local Commissioner and overruling the contention of the opposite party regarding limitation, the National Commission allowed the complaint partly by an order dated 05.01.2010. The operative part of the order of the Consumer Commission reads as follows: \u201cConsequently, complaint is partly allowed with cost of Rs. 25,000/\u00ad with direction to the opposite party to make the systems/facilities as at Sl. Nos. 2,3,4,5 and 6 of the prayer clause of the complaint operational/complete and to obtain and supply fire safety certificate of the complex to the complainant association within ten weeks from today. The opposite party will submit a report within two weeks thereafter from an independent Architect certifying that the systems/facilities in question have been fully made operational/complete by the opposite party. In the event of not making operational/complete the systems/facilities referred to above within the time allowed, the opposite party will pay through a demand draft the costs thereof as mentioned in aforesaid report dated 8.07.2008 within two weeks from after the expiry of 12 weeks time to the complainant association.\u201d 10. Aggrieved by the order of the National Commission, the opposite party (builder), has come up with one appeal in C.A.No.2998 of 2010. Aggrieved by the refusal of the National Commission to grant the reliefs as per prayer clause nos. 1, 7, 8, 9 & 10, the consumer\u00adcomplainant has come up with another appeal in C.A.No.4085 of 2010. 11. As observed earlier, the consumer complaint was contested by the opposite party both on merits and on the ground of limitation. Since it is easy to deal with the objection relating to limitation without much ado, we shall take it up first. 12. Section 24A(1) of the Consumer Protection Act, 1986 prescribes a period of limitation of two years from the date on which the cause of action has arisen for the admission of a complaint, by the District Forum, State Commission or the National Commission. In the case on hand, the opposite party handed over the work of maintenance of the complex to the complainant, under an Agreement dated 15.11.2003. As seen from the preamble to the Agreement, the Agreement covered common essential services such as generators, lifts, tube\u00adwell, water softening plant, electric substation, cabling, fire fighting system, pipelines, swimming pool, health and fitness centre, parking, club\u00adhouse, water supply, drainage/sewerage system, horticulture, water tanks/pumps and lawns/parks. 13. But different timelines were prescribed under the said Agreement for different obligations still remaining to be performed by the opposite party, towards the purchasers of flats. The last of such timeline was indicated to be 31.03.2004. 14. There were specific obligations to be performed by the opposite party under the said Agreement, in relation to certain services. It may be useful in this regard to extract clauses 13, 14 and 19 of the Agreement as follows:\u00ad \u201c13. The FIRST PARTY shall bear the contractual obligations of lift, generator, health club and equipments fitted at swimming pool. FIRST PARTY shall also bear the maintenance of these equipments till these contracts are concluded. FIRST PARTY shall bear any/all expenses on maintenance/repair/replacement of these equipments. 14. To FIRST PARTY shall make the softening plant and tube will in working condition and hand it over to SECOND PARTY separately on or before 31.1.2004. The FIRST PARTY shall also bring the fire fighting Equipments/generators in working condition and hand it over to the SECOND PARTY separately on or before 31.12.2003. \u2026 \u2026 \u2026 19. The FIRST PARTY shall construct the second Health Club and second swimming pool on or before 31.3.2004 and provide space for Club house in one of the basements for the residents as promised and assured at the time of selling the apartments on or before 31.12.2003.\u201d 15. Therefore, the cause of action for the complaint, as per the above clauses continued even after the date of the Agreement namely 15.11.2003. 16. In the affidavit filed by the local Manager of the opposite party by way of evidence, it was admitted that certain works in relation to fire\u00adfighting equipment continued up to the year 2005. In fact, the opposite party filed certain bills, which were dated 27.02.2005, 22.04.2005, 01.05.2005, 19.07.2005, 29.10.2005 and 12.12.2005, to show that the opposite party was honest and diligent in carrying out their obligations. 17. The affidavit in evidence filed by the opposite party and the aforesaid bills establish that the cause of action continued at least till December, 2005. The complaint before the National Commission was filed in February, 2007. Therefore, the National Commission was right in rejecting the objection relating to limitation. 18. Coming to the merits, let us first take up the challenge to correctness of the reliefs granted by the National Commission in favour of the complainant, as the appeal filed by the opposite party appears to be first in point of time. 19. The reliefs granted by the National Consumer Commission related to water softening plant, fire\u00adfighting, second health club equipment, second swimming pool and space for club house in Eden Tower. These reliefs were granted by the National Commission on the basis of the Report of the local Commissioner. 20. It appears that opposite party filed objections to the report of the local Commissioner, contending inter alia, (i) that the water softening plant was fully functional when the complex was taken over by the complainant association; (ii) that any deficiency or defect relating to the fire\u00adfighting equipment is wholly attributable to the lack of maintenance and wrongful practices adopted by the complainant association; (iii) that they are not contractually liable to provide a second health club and the finding of the local Commissioner that one of the health clubs is fully functional and in good condition has to be accepted; and (iv) that the second swimming pool was completed and made operational by the opposite party, but what remained was the filling up of water after filtration, which was the job of the maintenance agency. 21. Interestingly the affidavit of objections to the Report of the local Commissioner, filed on behalf of the opposite party on 06.08.2008, covered only the findings relating to, (i) water softening plant; (ii) fire\u00adfighting equipment; (iii) second health club; and (iv) second swimming pool, but did not cover the finding relating to the liability of the opposite party to provide furnished space for a club house in the basement of Eden Tower (relatable to relief no.6 of the complaint). However, the affidavit covered the claim of the complainant for maintenance charges, though the local Commissioner had nothing to do with the same. 22. The Commissioner appointed by the National Commission was an architect by name Amit Bahl. When he carried out the inspection, 4 persons representing the opposite party, which included the advocate of the opposite party and the deponent to the affidavit of objections were present. The architect examined each one of the items and not only found that they were not operational on date but also found, (i) that the equipment for the water softening plant was incomplete, ineffective and inadequate; (ii) that the fire\u00adfighting equipments were not in operation due to incomplete commissioning of the system as a whole and that even the fire safety certificate dated 05.11.2001 noted down the same; (iii) that while the first health club in the basement of the Tower Blue Heaven\u00ad2 was fully furnished and functional, the second health club was not adequately furnished though the civil works are complete; (iv) that the second swimming pool was not complete and operational, as the filtration plant was non\u00ad functional and the pump was removed after installation and that even the change rooms and showers have not been provided for; and (v) that in so far as the club house in the basement of Eden tower is concerned it was kept under lock and key by the opposite party and found to have been used as a store for keeping various building materials. 23. In the light of the aforesaid findings by an independent architect appointed by the National Commission it is not open to the opposite party to create a fa\u00e7ade as though all essential services and amenities were handed over in a fully functional state. If all the aforesaid services had been handed over in a fully functional state, the opposite party should have taken an acknowledgment in writing from the complainant. In the alternative, the opposite party should have insisted upon an appropriate provision in the Agreement dated 15.11.2003. 24. As noted by the Commissioner, even the fire safety certificate dated 05.11.2001 states that though the majority of the equipment have been satisfactorily installed, some equipment have been removed and stored for security purposes and that the inference therefore is that the system never got commissioned. 25. It is not impossible for an experienced architect to find out whether the condition in which the aforesaid amenities and services were found on the date of the inspection, was entirely due to lack of maintenance or due to non\u00adcommissioning or incomplete commissioning. 26. As noted by the National Commission, the affidavit of objections filed on behalf of the opposite party to the Report of the local Commissioner does not deal with the cost of estimates indicated by the Commissioner in his Report. In addition, the affidavit of objections does not even deal with the finding relating to the club house at Eden Tower, said to have been kept under lock and key by the opposite party for storing building materials. The very fact that at the time of inspection by the local Commissioner, the possession of the club house in Eden Tower was with the opposite party, goes to show that the opposite party was still retaining control of at least some part or certain services in the complex, perhaps due to the fact that there were about 45 unsold flats. 27. In view of the above, we are not convinced that the reliefs granted by the National commission in favour of the complainant warrant any interference. Therefore, the appeal in C.A. No.2998 of 2010 is liable to be dismissed. 28. But before we do that, we should take note of the fact that as per the operative portion of the order of the National Commission (which we have extracted elsewhere) the opposite party is obliged to make the systems/facilities at prayer clauses 2, 3, 4, 5 & 6 of the complaint, fully operational/complete and they are also obliged to obtain a certificate of completion from an independent architect. If the opposite party failed to do so within the time stipulated by the National Commission, the opposite party was obliged to pay the cost as estimated by the Commissioner in his Report dated 08.07.2008. 29. The costs estimated by the local Commissioner in his Report dated 08.07.2008 are as follows :\u00ad 1 Water softening plant Rs. 20,29,962 . 2 Fire fighting equipment Rs. 83,00,000 . 3 Second health club Rs. 7,60,000 . 4 Second swimming pool Rs. 2,70,000 . 5 Furnishing the club house in Eden Rs. 2,75,000 . Tower Total Rs.1,16,34,962 30. While ordering notice in C.A.No.2998 of 2010, on 29.03.2010, this Court granted stay of operation of the impugned order on condition that the opposite party\u2013builder deposit Rs.60,00,000/\u00ad within 8 weeks. Subsequently, the order was modified on 14.05.2010, permitting the opposite party to deposit the sum in two equal instalments, the first instalment before 22.05.2010 and 2nd instalment before 15.07.2010. It appears that the amount has been accordingly deposited and the amount has been invested in a Fixed Deposit which is renewed from time to time by the orders of this Court. 31. In view of the fact that the possession of the common amenities were handed over by the opposite party to the complainant Association 18 years ago (under the Agreement dated 15.11.2003), it may not be possible at this distance of time to compel the opposite party to make those facilities/systems at relief clauses 2, 3, 4, 5 and 6, fully operational now. The cost of estimate which works out to approximately Rs.1.16 crores, includes within itself the cost of fire fighting equipment and this constitutes the major component (it works out to Rs. 83 lakhs). As seen from the Commissioner\u2019s Report, the mistake committed by the opposite party was in removing a part of the equipment but not putting them back. This finding is as per the fire safety certificate. Therefore, it may not be appropriate to ask the opposite party to bear the entire burden. 32. Therefore, taking into account the overall picture, we are of the considered view that interests of justice will be met if the order of the National Commission is modified in such a manner (i) that the complainant Association shall receive in full and final settlement, the deposit now lying in the Registry of this court, towards adequate compensation for the reliefs that they are held entitled to by the National Commission; and (ii) that the opposite party is directed to remove all building material stored in the club house in the basement of Tower Eden and hand over possession of the club house to the complainant. 33. Now coming to the appeal CA No.4085 of 2010 filed by the complainant against the refusal of the reliefs in prayer clause nos.1, 7, 8, 9 and 10, we think that the National Commission was justified in rejecting those reliefs. The claim for monthly maintenance charges for the unsold flats, amounting to Rs.9,05,810/\u00ad sought as per prayer clause no.1, was made by the complainant on the basis of clause 10 of the Agreement dated 15.11.2003 which reads as follows: \u201c10. The FIRST PARTY agrees to pay to the SECOND PARTY the monthly maintenance charges @ 50 paise per square feet for the unsold flats w.e.f. 16.11.2003. FIRST PARTY shall make the advance payment for 6 months within 7 days of signing of the agreement. Subsequently these charges will be paid yearly in advance.\u201d 34. The averments relating to the relief claimed at prayer clause no.1 are found in paragraph 16 of the complaint which reads as follows:\u00ad \u201c16. That the amount of such advance payment upto 31.12.2006 is Rs.619568/\u00ad approx. an advance for the year 2007 comes to Rs.286242/\u00ad. Thus the OP has to make the total payment amounting to Rs. 905810/\u00ad approx. with interest @ 24% for the delayed period for which OP had agreed vide agreement dated 15.11.2003 Clause No.6 last two lines.\u201d 35. Though the National Commission did not deal with the relief claimed at prayer clause No.1 in sufficient detail and the National Commission did not also provide cogent reasons for rejecting the relief, we find that the complainant may not be entitled to the said relief. There are two reasons as to why we say so. The first reason is that the complainant did not provide detailed calculations about the plinth area of the unsold flats, the period during which they remained unsold and the manner in which the amount indicated in para 16 of the complaint was arrived at. In any case the payments were to be made under clause 10 of the agreement, first within seven days of the agreement in respect of the advance payment for six months and thereafter by way of annual payments in advance. Therefore, a major portion of the claim for money was obviously barred by limitation when the complaint was filed. Moreover, the opposite party raised a dispute about the quantum and asserted in para 16 of their reply before the National Commission that what was due was only Rs.232750/\u00ad. Thus, the question became a disputed question of fact on which both parties did not lead sufficient evidence. Therefore, the rejection of the claim at prayer clause No.1 was legally correct. 36. The relief claimed at prayer clause no.8 is to direct the opposite party not to sell or rent out the unsold flats till the facilities mentioned in prayer clause nos.2 to 6 are provided. By its very nature, this relief is in the nature of an interim relief and, hence, was rightly rejected by the National Commission in the final judgment. 37. The relief claimed in prayer clause no.9 relates to stilt and open car parking. There was no evidence before the National Commission to grant such a relief and, hence, the refusal to grant the relief mentioned in prayer clause no.9 is in order. 38. The claim for costs and damages for harassment, mental torture, agony etc., made in prayer clause no.10 was not granted by the National Commission, and rightly so, in view of the fact that after handing over the common amenities under the Agreement dated 15.11.2003, the opposite party continued to carry out at least some works. This is why the complaint was lodged in 2007. Therefore, we find no reason to grant the relief prayed for in prayer clause no.10. 39. That leaves us with the relief claimed in prayer clause no.7. This was for a direction to the opposite party to vacate the tenant occupying the terrace of Tower Eden. According to the complainant, the terrace of Tower Eden was let out by the opposite party to a company, leaving the residents of Tower Eden without a terrace for common use. But the relief of eviction involves a third party and hence the National commission rightly left it to the complainant to pursue the remedy in an appropriate Forum. 40. Thus, we find that the refusal of the National Commission to grant the reliefs mentioned in prayer clause nos.1, 7, 8, 9 and 10 warrant no interference. Therefore, the appeal of the complainant in CA No.4085 of 2010 is liable to be dismissed. 41. Accordingly the appeal of the consumer\u00adcomplainant in C.A. No. 4085 of 2010 is dismissed. The appeal of the builder\u00adopposite party in C.A. No. 2998 of 2010 is partly allowed, modifying and substituting the judgment of the National Consumer Disputes Redressal Commission dated 05.01.2010 in Consumer Complaint No. 9 of 2007, to the following effect: The complainant shall be entitled to all told monetary compensation in a sum of Rs. 60 lakhs, now lying in deposit with the Registry of this court, together with the interest accrued thereon, in lieu of the reliefs sought in prayer clauses 2, 3, 4, 5 and 6 of the complaint. The opposite party shall, within two weeks, remove all building material stored by them in the club house in the basement of Tower Eden and hand over possession of the club house to the complainant. The complaint shall stand dismissed in all other respects. No costs. 42. The parties are to bear their respective costs in these appeals. The Registry shall liquidate the fixed deposit standing to the credit of the above appeal and make payment of the proceeds to the complainant namely, Royal Garden Residents welfare Association. All interlocutory applications if any are closed. ...................................J. (Hemant Gupta) ...................................J. (V. Ramasubramanian) New Delhi September 28, 2021",
        "975074": "PETITIONER: PARMAR KANAKSINH BHAGWANSINH (DEAD) BY L.R'S. Vs. RESPONDENT: 1. MAKWANA SHANABHAI BHIKHABHAI & 2. MAKWANA PRABATBHAI DATE OF JUDGMENT08/12/1994 BENCH: VENKATACHALA N. (J) BENCH: VENKATACHALA N. (J) SAHAI, R.M. (J) CITATION: 1995 SCC (2) 501 JT 1995 (1) 103 1994 SCALE (5)169 ACT: HEADNOTE: JUDGMENT: VENKATACHALA, J.: 1. This civil appeal by special leave is directed against the Judgment and Decree dated 29th November, 1977 rendered by a single Judge of the Gujarat High Court in Second Appeal No. 348 of 1973, which arose out of Regular Civil Suit No. 921 of 1966 filed in the Court of Joint Civil Judge, Baroda (Civil Court) by the appellant herein as plaintiff against respondents 1 and 2 herein - defendants 1 and 2 for redemption of suit properties which were mortgaged as security for certain monies borrowed by the plaintiff from defendant-l under two deeds of mortgage executed in the year 2. Plaintiff filed the suit for redemption of the said mortgages in the year 1966. Defendant-2, brother of defendantI had been joined in that suit on the allegation that the latter was put in possession of mortgage properties by the former subsequent to the coming into existence of the mortgages. That suit was resisted by the defendants, each of them having filed separate written statements which in sub- stance did not differ from each other. The defence in those written statements was that defendant-l and his family members had become tenants of the suit properties in the year 1959-1960 and had continued to be such tenants at the time of mortgage deeds executed in respect of those properties in the year 1961 and thereafter. It was also claimed therein that they had become owners of the said properties when the plaintiff in the year 1962 sold those properties to defendant-1 by receiving a sum of Rs.4,400/- as consideration for the sale. Even if the sale of said properties in favour of defendant-l, it was asserted therein, was not proved, they continued to be tenants of the said properties on the date of suit as they were tenants even before the date of coming into existence of the mortgages. The issue relating to their claim that they were tenants of the said properties - the agricultural lands, as urged therein, had to be referred by the Civil Court to the Mamlatdar under section 85-A of the Bombay Tenancy and Agricultural Lands Act, 1948 - \"the BT&AL Act\" for recording his finding thereon and the suit had to be stayed pending receipt of the finding thereon so that the suit may be finally disposed of on the basis of such finding. The Civil Court notwithstanding the defence of the defendants taken in their written statements that the suit had to be stayed for obtaining the finding on their claim of tenancy under the BT&AL Act, framed the issues in the suit on the basis of the pleadings of the parties and after trial .recorded its findings thereon. Such findings were firstly, that the defendants had failed to prove that the suit properties were sold in favour of defendant-l subsequent to the giving of security of those properties in his favour under the mortgage deeds; secondly, that the defendants had failed to prove the past tenancy of the suit properties on its view that what was pleaded by them in the written statements was tenancy prior to the date of filing of the suit; and thirdly, that the mortgages of the suit properties were mortgages by 'conditional sale. On the basis of findings so recorded by the Civil. Court, it also made a preliminary decree in favour of the plaintiff for redemption of the suit properties. Though the defendants filed an appeal in the Court of the District Judge, Baroda against the said preliminary decree that appeal came to be dismissed on August 17, 1972 affirming the judgment and decree of the Civil Court. 3. However, the defendants questioned the judgments and decrees of the trial court and the appellate court by filing a second appeal against the same in the High Court of Gujarat. A learned single Judge of the High Court, who heard the second appeal, while upheld the concurrent findings of the courts below that the deeds of mortgage executed by the plaintiff in respect of the suit properties in favour of defendant-l were mortgages by conditional sale and the defendants had failed to prove that there was sale of the suit properties in their favour subsequent to the coming into existence of the said mortgages, found that the defendants had raised in their written statements the plea that they were tenants not only prior to the date of suit but also at the time of the filing of the suit and having regard to that plea the suit ought to have been stayed by the Civil Court and the issue of tenancy should have been referred to the Mamlatdar for obtaining a finding from him thereon both under section 85-A of the BT&AL Act as it stood before its amendment at the time of filing of the suit and as it stood after its amendment after the filing of the suit. Consequently, the learned single Judge set aside the judgments and decrees of the trial court and the appellate court relating to the issue of tenancy raised by the defendants in the suit and remanded the case to the Civil Court (trial court) directing it to refer the issue of such tenancy to the Mamlatdar, Baroda for his determination and to stay all further proceedings in the suit till he got the finding from the Mamlatdar on that tenancy issue and thereafter to proceed to dispose of that suit in the light of that finding and the other findings recorded by the appellate court (District Judge). It is the Judgment and Order of the learned single Judge of the High Court by which he allowed the Second Appeal and remanded the suit, which is appealed against in this Civil Appeal of the plaintiff as is stated at the outset. 4. No controversy is raised in this appeal as regards the findings of the Civil Court that the deeds of mortgage executed by the plaintiff in respect of the suit properties were mortgages by conditional sale. Specific case pleaded by the plaintiff in the plaint as regards possession of the suit properties held by tenants was that their possession which was with the plaintiff was given to defendant-l on the execution of the deeds of mortgage by conditional sale in his favour. In any event, it was not the case of the plaintiff that defendant-l was a tenant of the suit properties and hc surrendered his possession of the suit properties either expressly or impliedly and the possession so obtained by the plaintiff was re-delivered to defendant-l in pursuance of the mortgages by conditional sale executed in his favour. 5. However, the arguments addressed before us on behalf of the plaintiff- appellant in support of the appeal by learned Senior Counsel Mr. S.K. Dholakia were these: That defendant-l - respondent-l although was in possession of the suit properties - agricultural lands at the time of execution of the deeds of mortgage by conditional sale in his favour because of the coming into existence of such mortgages there occurred merger of lease-hold rights of defendant-l in suit properties when he obtained those properties as mortgage security under the said mortgages and as a consequence he became a mortgagee in possession of those properties. According 10 him a mortgagee in possession being a person who cannot be deemed to be a tenant under section 4 of the BT&AL Act it was not open to the defendants to claim that they were the tenants of suit properties and if that be so question of raising issue of tenancy by the Civil Court in the suit before it did not arise at all nor was it necessary to refer such issue to the Mamlatdar under section 85-A of the BT&AL Act and stay the suit till receipt of the finding on such issue as was directed by the High Court in its judgment under appeal. In support thereof, he sought to place reliance on the decisions of this Court in Shah Mathuradas Maganlal and Co. v. Nagappa Shankarappa Malaga and Others [AIR 1976 SC 1565] and Gambangi Appalaswamy Naldu and Others v. Behara Venkataramanayya Patro [AIR 1984- SC 1728]. Even otherwise. it was argued by him that the Civil Court before whom the plaintiff had filed the suit for redemption of the suit properties could not have driven the plaintiff to the forum of Mamlatdar merely because the defendants had raised the plea that they were tenants of the suit properties - agricultural lands. According to him when the plaintiff had not admitted that the defendants were tenants of the suit properties, it was not open to the defendants to force the plaintiff who had a right to choose his forum to file a suit to go before another forum on the plea that jurisdiction lay before another forum, that is, Mamlatdar. In this regard support was sought from the decision of this Court in Raizada Topandas and Another v. M/s. Gorakhram Gokalchand [AIR 1964 SC 1348]. He, therefore, urged that the High Court was not justified in upsetting the concurrent finding of the trial court and the appellate court that the defendants failed to prove their tenancy and remanding the case to the trial court directing it to refer the issue of tenancy to the Mamlatdar and stay the suit till the receipt of the finding in that regard from the Mamlatdar and then dispose of the suit. Hence, the Judgment and Order of the High Court, according to him, was liable to be interfered with and set aside. 6. However, learned counsel appearing for the defendants - respondents sought to refute the arguments advanced on half of the plaintiff- appellant. 7. Questions which arise for our consideration and decision in the light of the aforesaid arguments of learned counsel for the contesting parties admit of their formulations thus: (1). Does the lease-hold of a tenant (lessee) in a property merge in mortgage security if the same property is given by the landlord (lessor) to the tenant (lessee) as a mortgage security under a mortgage by conditional sale, as would debar the tenant from desisting the suit of the landlord - mortgagor for recovery of possession of such property by obtaining a decree for redemption of the mortgage ? (2). When a plea of tenancy is raised with regard to suit property, an agricultural land, by a defendant who claims to be a tenant of such property under the BT&AL Act and seeks a reference of that issue by the Civil Court to the Mamlatdar under that Act for obtaining a finding thereon, can the Civil Court decide such issue by itself and proceed to decide the suit on the basis of the finding thereon ? As the said questions could be dealt with appropriately with reference to the statutory provisions which bear upon them, it would be convenient to advert to such statutory provisions here. The Transfer of Property Act, 1882 (TP Act) \"111. A lease of immoveable property determines - (a) .... (b) .... (c) .... (d) in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right ..... \" Bombay Tenancy and Agricultural Lands Act,1948 (BT&AL Act) \"2. In this Act, unless there is anything repugnant in the subject or context, (18) 'tenant' means a person who holds land on lease and include - (a) a person who is deemed to be tenant trader section 4; (b) a person who is a protected tenant; and (c) a person who is a permanent tenant; and the word 'landlord' shall be construed accordingly.\" \"4. A person lawfully cultivating any land belonging to another person shall be deemed to be a tenant if such land is not cultivated personally by the owner and if such person is not - (a) a member of the owner's family, or (b) a servant on wages payable in cash or kind but not in crop share or a hired labourer cultivating the land under the personal supervision of the owner or any member of the owner's family, or (c) a mortgagee in possession.\" \"70. For the purposes of this Act the following shall be the duties and functions to be performed by the Mamlatdar - (a) to decide whether a person is an agriculturist; (b) to decide whether a person is a tenant or a protected tenant (or a permanent tenant); (c) to decide such other matters as may be referred to him by or under this \"85. (1). No Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the Mamlatdar or Tribunal, a Manager, the Collector or the Maharashtra Revenue Tribunal in appeal or revision or the State Government in exercise of their powers of control. (2). No order of the Mamlatdar, the Tribunal, the Collector or the Maharashtra Revenue Tribunal or the State Government made under this Act shall be questioned in any Civil or Criminal Court. Section 85A, as it stood before the amendment of this Act by Gujarat Act No.5 of 1973 w.e.f. 3rd March, 1973: \"85A. (1). If any suit instituted in any Civil Court involves any issues which are required to be settled, decided or dealt with by any authority competent to settle, decide or deal with such issues under this Act (hereinafter referred to as the 'competent authority') the Civil Court shall stay the suit and refer such issues to such competent authority for determination. (2). On receipt of such reference from the Civil Court, the competent authority shall deal with and decide such issues in accordance with the provisions of this Act and shall communicate its decision to the Civil Court and such court shall thereupon dispose of the suit in accordance with the procedure applicable thereto .... \" Section 85A, as it came into force after it was amended by Gujarat Act No.5 of 1973 w.e.f 3rd March, 1973 :- \"85A. (i) If any suit instituted, whether before or after the specified date, in any Civil' Court involves any issues which are required to be settled, decided or dealt with by any authority competent to settle, decide or deal with such issues. under this Act (hereinafter referred to as the 'competent authority') the Civil Court shall stay the suit and refer such issues to such competent authority for determination. ' ' 9. We shall now proceed to deal with the aforesaid questions. Question (1): 10. Interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right because of section 11 l(d) of the T.P. Act. What is enunciated in section 111 (d) of the T.P. Act cannot be doubted is the doctrine of merger. Merger takes place when a lesser estate is merged or drowned in a greater estate. Lease- hold held by a tenant or a lessee being a lesser estate and the right of reversion of the landlord (lessor) being a higher estate, the lessee's lease-hold right in respect of the property merges in reversion when that right of reversion, i.e., the landlord's (lessor's) right of reversion comes to the tenant or lessee which happens when the landlord having a right to sell his reversion to the tenant holding the lease-hold sells the whole of it to the tenant (lessee). But, in view of the arguments advanced on behalf of the plaintiff- appellant, what has to be seen is if the landlord of a property, the lease-hold of which is already with the tenant, gives that very property as mortgage security to the tenant (lessee) by executing a mortgage by a conditional sale for the amount borrowed by him from the latter, does merger of lease-hold right in that mortgage security occur. When the landlord mortgages the lease-hold property of the tenant to the tenant himself, he does not part with the right of reversion which he has in respect of that property. If that be so, merger of lease-hold estate in reversion cannot arise, inasmuch as, there cannot be any inconsistency or incompatibility in one person being the tenant and also the mortgagee of the same property, for in that event instead of the tenant paying rent to the landlord he may adjust it against the amount claimable by him as a mortgagee from the landlord. Moreover, if a lessee of a property takes a mortgage of the sum property from the landlord, it would be unreasonable to attribute to a tenant the intention to surrender the tenancy and to invoke the sophisticated doctrine of implied surrender as has been held by the Gujarat High Court in Patel Atmaram Nathudas v. Babubhai Keshavlal, AIR 1975 Guj. 120. 11. In the present case, as has already been pointed out by us, the plaintiff- appellant did not claim that the defendants or any of them were in possession of the suit properties as tenants and there was a surrender by them of the possession either expressly or impliedly as would make the Court to come to the conclusion that the possession of the suit properties with the defendants was surrendered by them pursuant to the mortgage by conditional sale executed in their favour. If that be the position, there can be no bar for the defendants to claim the right to continue in possession of the suit properties as tenants under the BT&AL Act even if the plaintiff could obtain a decree for redemption of the suit properties, which relief was sought in the suit. The decision of this Court in Shah Mathuradas case (supra) and G. Appalaswamy case (supra) sought to be relied upon by learned counsel for the appellant - plaintiff in support of his arguments that there was a merger of the leasehold right of the tenant in the suit properties when he took mortgages of those properties from the landlord as would deny him the right to continue in possession of those properties as a tenant, instead of supporting his argument would go against it, as we shall presently point out. Shah Mathuradas case (supra) was that where the respondent had executed a mortgage in favour of the appellant respecting a premises of which he was a tenant. It was agreed under the terms of the mortgage deed that no interest need be paid by the respondent since the premises, the possession of which was given to the tenant pursuant to the mortgage was to be enjoyed in lieu of interest payable on the mortgage. When suit for redemption of the premises was filed by the respondent the appellant claimed, that after redemption, he was entitled to remain in possession of the premises because of the subsistence of his previous tenancy right. This Court held that the mortgage deed established beyond doubt that there was no subsistence or continuation of lease in that there was delivery of possession by the tenant to the landlord immediately before the mortgage and redelivery of possession to the tenant of the premises made by the landlord was pursuant to the mortgage as a mortgagee and not as a tenant. Secondly, this Court held that the appellant was not entitled to retain after redemption possession of the mortgage-property by reason of his previous right to be in its possession as a tenant. In the present case as we have pointed out earlier, when no surrender of possession of the suit properties had taken place before the coming into existence of mortgages in favour of the lessor - mortgagor, when no redelivery of possession had been given pursuant to the mortgage to the-tenant, the decision under consideration can be of no assistance to the appellant. Since the following observations in the said case confirm the view we have taken on non-merger, they can be excerpted: \"For a merger to arise, it is necessary that a lesser estate and a higher estate should merge in one person at one and the same time and in the same right, and no interest in the property should remain outside. In the case of a lease the estate that is in the lessor is a reversion. In the case of a mortgage the estate that is outstanding is the equity of redemption of the mortgagor. Therefore, there cannot be a merger of lease and mortgage in respect of the same property since neither of them is a higher or lesser estate than the other.\" 13. Coming to G. Appalaswamy case (supra) which considered the question whether a sitting tenant who took property by a possessory or usufructuary mortgage in his favour was liable to deliver physical possession upon redemption to the mortgagor (former lessor). This Court dealing with the said question said that all depends upon whether there was an implied surrender of the lessee's rights when the usufructuary mortgage was executed in his favour by the lessor-mortgagor and only if an implied surrender of lossee's rights could be inferred then the mortgagor would be entitled to have delivery of physical possession upon redemption but not otherwise. Dealing with the question of non-merger this Court approved the ratio of the decision in Shah Mathuradas (supra) thus: \"In our view there can be no merger of a lease and a mortgage, even where the two transactions are in respect of the same property. It is well-settled that. for a merger to arise, it is necessary that lesser estate and a higher estate should merge in one person at one and the same time and in the same right and no interest in the property should remain outstanding. In the case of a lease, the estate that is outstanding in the lessor is the reversion; in the case of a mortgage, the estate that is outstanding is the equity of redemption of the mortgagor. Accordingly, there cannot be a merger of a lease and a mortgage in respect of the same property since neither of them is a higher or lesser estate than the other. Even if the rights of the lessee and the rights of the mortgagee in respect of a property were to be united in one person the reversion in regard to the lease and the equity of redemption in regard to the mortgage, would be outstanding in the owner of the property and accordingly, there would not be a complete fusion of all the rights of ownership in one person.\" 13. Hence, the lease-hold of a tenant (lessee) in a property does not merge in mortgage security of that property, even if it is given .to him by the landlord (lessor) on a mortgage by conditional sale as would debar the tenant from desisting the suit of the landlord mortgagor for recovery of possession of such property by obtaining decree for redemption of the mortgage. Question (2): 14. The argument which was strenuously advanced on behalf of the appellant - plaintiff was that in a suit for redemption filed by the mortgagor in a Civil Court in respect of property notwithstanding the plea of the defendants' claim that they were tenants of that property under the BT&AL Act and under the provisions of that Act the issue of tenancy had to be referred by the Civil Court to the Mamlatdar for recording a finding thereon and the Civil Court can proceed to dispose 0 the suit only on the basis of the finding received from the Mamlatdar, the Civil Court itself can record its finding on the issue of tenancy and if the finding to be recorded had to go against the claim of tenancy, it would be permissible for the Civil Court to grant the decree for redemption sought by the plaintiff in the said suit. Support was sought for the argument from the decision of this Court in Topandas case (supra). 15. We find it difficult to accept the said argument and the aforesaid decision of this Court relied upon in support thereof can render no assistance. The only question which arose for decision in Topandas case (supra) was whether on a proper interpretation of section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - \"the Rents Control Act\", the Court of Small Causes, Bombay had exclusive jurisdiction in dealing with the suit out of which the appeal had arisen. There, the respondent - a partnership firm was in possession as a tenant of a shop at Mulji Jetha Market, Bombay. It instituted a suit in the Bombay City Civil Court (not the Court of Small Causes, Bombay) praying for a declaration that it was in lawful possession of the shop and the appellants had no right to enter into or remain in possession of the shop and for grant of an injunction restraining the appellants from interfering with the respondent's possession. The plaint averments were that appellant- 1 (defendant- 1) had appointed the respondent as his commission agent for the sale of the appellants' cloth in the shop in question. The agreement was to remain in force for a period of four years. Pursuant to the said agreement, the respondent had allowed the appellants, their family members, servants and agents to visit the shop only for the purpose of looking after the business of commission agency. The appellants, despite being asked not to visit the shop after the expiry of the period in the concerned agreement, they continued to visit the shop and were preventing the respondent from having access to its various articles such as stock-in-trade, books of account, furniture, fixtures etc. Thus according to the plaint, the appellants who .were merely licensees, had no right to enter into the shop after the expiry of the period of licence envisaged in the agreement. The defence of the appellants (defendants) in substance was that the agreement on which reliance was placed by the respondents in their suit was a sham agreement and that the appellants in reality were the tenants of the shop and the relationship between the respondents and appellants was that of the landlord and tenant. The further plea taken in the written statement by the appellants was that as the question involved in the suit related to the possession of premises as between a landlord and his tenant, the Court of Small Causes, Bombay, alone had jurisdiction to try the suit. The appeal in this Court had arisen out of the finding recorded on that issue and in dealing with that matter this Court had. to consider the true effect of sub-section (1) of section 28 of the Rents Control Act to find whether it means that a defendant if raises a claim or question as to the existence of relationship of landlord and tenant between him and plaintiff the jurisdiction of the Civil Court is ousted even though the plaintiff pleaded that there is only exclusive jurisdiction to decide the case with the Court of Small Causes, Bombay. Dealing with the matter this Court referred. to the general principle which covers the question of jurisdiction at the inception of suits which was not disputed, thus: \"The plaintiff chooses his forum and files his suit. If he establishes the correctness of his facts he will get his relief from the forum chosen. If ... he frames his suit in a manner not warranted by the facts, and goes for his relief to a court which cannot grant him relief on the true facts, he will have his suit dismissed. Then there will be no question of returning the plaint for presentation to the proper court, for the plaint, as framed, would not justify the other kind of court to grant him the relief ..... If it is found, on a trial on the merits so far as this issue of jurisdiction goes, that the facts alleged by the plaintiff are not true and the facts alleged by the defendants are true, and that the case is not cognizable by the. court, there will be two kinds of orders to be passed. If the jurisdiction is only one relating to territorial limits or pecuniary limits, the plaint will be ordered to be returned for presentation to the proper court. If, on the other hand, it is found that having regard to the nature of the suit it is not cognizable by the class of court to which the court belongs, the plaintiff's suit will have to be dismissed in its entirety.\" 16. By referring to the material portion of section 28 of the Rents Control Act the argument made on behalf of the appellants was found by this Court to be untenable by stating thus: \"... We do not think that the section says or intends to say that the plea of the defendant will determine or change the forum. It proceeds on the basis that exclusive jurisdiction is conferred on certain courts to decide all questions or claims under the Act as to parties, between whom there is or was a relationship of landlord and tenant. It does not invest those courts with exclusive power to try questions of title such as questions as between the rightful owner and a trespasser or a licensee, for such questions do not arise under the Act. If, therefore, the plaintiff in his plaint does not admit a relation which would attract any of the provisions of the Act on which the exclusive jurisdiction given under S.28 depends, we do not think that the defendant by his plea can force the plaintiff to go to a forum where on his averments he cannot go. The interpretation canvassed for by the appellants will give rise to anomalous results; for example, the defendant may in every case force the plaintiff to go to the Court of Small Causes and secondly, if the Court of Small Causes finds against the defendant's plea, the plaint may have to be returned for presentation to the proper court for a second time ..... when one has regard to the provisions in Part II it seems reasonably clear that the exclusive jurisdiction conferred by S.28 is really dependent on an existing or previous relationship of landlord and tenant and on claims arising under the Act as between such parties.\" 18. As seen from the above observations this Court has held that it did not think that the section concerned says or intends to say that the plea of the defendant will determine or change the forum. But, if the provisions of the BT&AL Act which bear on the question of matters to be decided by the Mamlatdar are seen, they give no room for one even to think that those matters could be decided by a Civil Court when a question is raised in that behalf even by a defendant in a suit. 19. Section 70 of the BT&AL Act to which we have adverted already imposes a duty on the Mamlatdar to decide whether a person is an agriculturist or a tenant or a protected tenant or a permanent tenant when such person claims to be so under that Act. Further, section 85 of the BT&AL Act to which also we have already adverted, in unequivocal terms says that in deciding any issue which is required to be decided by the Mamlatdar under the BT&AL Act no Civil Court has jurisdiction to decide it. Furthermore, section 85A, as it stood prior to its amendment by Gujarat Amendment Act No.5 in the year 1973 and as stands thereafter, requires that if any suit instituted in Civil Court involves the question of tenancy of 'present' or 'past', as the case may be, the same being required to be decided or dealt with by an authority competent under the BT&AL Act, the Civil Court has to stay the suit and refer the issue to such competent authority for determination and after receiving the decision thereon to dispose of the suit in accordance with such decision. Thus, the provisions in the BT&AL Act give no scope or room to think that the plea of tenancy if raised by the defendants in a suit in a Civil Court, the same could be decided by the Civil Court. Thus we are constrained to answer the question in the negative by agreeing with the view expressed by the single Judge of the High Court in this regard in his Judgment and Order under appeal. 20. Consequently, the Judgment and Order under appeal does not call for our interference. 21. In the result, we dismiss this appeal with costs.",
        "189525449": "Non-Reportable IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO._______OF 2021 (Arising out of SLP (Crl) No. 6965 OF 2019) Surendra Kumar & Anr. APPELLANT(S) VERSUS State of U.P. RESPONDENT(S) J U D G M E N T Hrishikesh Roy, J. Leave granted. This appeal is the culmination of a tragedy which decimated two families in its course. The murder of a recently married young woman, where the finger of suspicion was raised towards her own husband, brother-in-law and even her father-in-law as an accused who met an unnatural demise during the pendency of the trial. This Court has been approached to lay to rest Signature Not Verified the litigation which has followed suit for more than Digitally signed by Jayant Kumar Arora Date: 2021.04.24 14:43:04 IST Reason: two decades. 2. Heard Mr. Shadan Farasat, learned counsel for the appellants. Also heard Mr. V. Diwakar, learned AAG representing the State of Uttar Pradesh. The challenge in this appeal is to the common judgment and order dated 12.3.2019 in Criminal Appeal No. 346 of 2009, whereby the Division Bench of the High Court of Judicature at Allahabad upheld the conviction of the appellant No. 1 under Section 302 read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as \u201cIPC\u201d) and of the appellant No. 2, under section 120B IPC. 3. The appellants are brothers and are residents of Mahal Village in Meerut District. The appellant No. 2 Ramveer was married on 13.5.1993 to Kamla Rani, whose parental home was in the neighboring village of Phlawada. On 8.8.1993 Kamla Rani, after spending some days with her parents was returning back on the scooter driven by her brother in law Surendra Kumar (appellant No. 1). Some minutes after they started the journey, two armed miscreants on the road between Phlawada and Bathnor ambushed the scooter near the forested area and took Kamla Rani to the roadside sugarcane field of Quasim Ali and shot her from close range and robbed her of the gold and silver ornaments worn on her person. Surendra Kumar then rode the scooter to village Phlawada to inform Baldev, the father of Kamla Rani about the incident. The scooter was left behind with Kamla Rani\u2019s father and Surendra then returned to his own village and informed his brother and other family members in the matrimonial home of the deceased, at Village Mahal. Both brothers accompanied by their father, thereafter rushed to the police station. Around the same time, Dhan Singh (PW-1) and Karamveer (PW-2), who were near the site of incident, after hearing the sound of firing went towards the field and they noticed two miscreants (not appellants), removing ornaments from the body of Kamla Rani. The PW1 and PW2 accosted the looters but showing arms, both looters fled from the scene. 4. The FIR of the incident (which took place around 4.45 pm) was filed at 5.30 pm by Baldev Singh (father of the deceased Kamla Rani) at the Phlawada Police Station. Meanwhile, the appellants and their father Om Prakash also reached the Police Station. Since, maltreatment of the deceased in the matrimonial home was alleged in the FIR, the appellants were detained in the police lock up and four days later, the police formally arrested all three, on charge of conspiracy and murder. In course of investigation, the police also arrested Rajveer and Shiv Kumar alias Pappu, suspecting them to be the two unknown robbers seen by PW1 and PW2, in the act of removing ornaments from the person of the deceased Kamla Rani. 5. The preliminary investigation was done by S.I Ramachandra Singh (PW5), who prepared the Panchnama (Exbt Ka-7) and sent the dead body for autopsy. Few jewellery items and the locked suitcase, found near the body were also seized by the PW-5. Next day i.e. 9.8.1993, the SHO Amrat Lal returned from leave and led the investigation. He seized the scooter from the residence of Baldev and the recovery memo of scooter (Exbt Ka-2) was prepared. 6. The autopsy of dead body of Kamla Rani was done by PW3 Dr. N.K Maheshwari on 9.08.1993 at 4.30 p.m. and he noted the following antemortem injuries on the body; 1 Firearm wounds of entry 2.0 cm X 2.5 cm on right side of neck blackening & tattooing 8.0 cm X 8.0 cm on upper side of wounds; 2 Firearm entry wound of 2.0 cm X 2.5 cm into muscle deep with blackening & tattooing around 2.0cm, mandible bone was also fractured. 3- Firearm wounds of exit 5.0 cm x 8.0 cm margin irregular at the left side of Upper face on external examination of dead body post mortem staining present on the back side rigour mortis was absent on upper side and present on lower side of the body. Dr. N.K Maheshwari in his report opined that the cause of death was hemorrhage & shock as a result of ante- mortem injury. 7. As stated earlier, the investigation unearthed the names of Shiv Kumar and Rajveer (both acquitted by the High Court). On completion of investigation, the chargesheet (Exbt Ka3) was filed by the I.O. against 5 accused. The case was committed and charge was framed by Sessions Court against Shivkumar and Rajveer u/s. 302/394 of IPC; against Om Prakash and Ramveer u/s. 120B IPC and against Surendra Kumar u/s. 302/34 of I.P.C. All five accused were tried together but Om Prakash died during trial and the case against him was abated. 8. While there was no direct evidence implicating the appellants in the crime, on the basis of circumstantial evidence of the husband being unhappy with Kamla Rani, the alleged conspiracy hatched by him with his brother and father Om Prakash and the fact that the deceased was last seen in the company of appellant Surendra in whose scooter she was travelling back from her parental home, and the suspicious conduct of the appellants, the Trial Court convicted the appellant No. 1 Surendra Kumar, under Section 302 read with Section 34 IPC and the appellant No. 2 Ramveer, under Section 120B IPC. Accused Shiv Kumar and Rajveer were additionally held guilty under Section 394 and an appropriate sentence was imposed against all four accused, by the learned Additional Sessions Judge, Meerut. 9. In the appeal filed by the brothers, High Court confirmed the conviction of the appellants but relief was granted in the connected criminal appeal filed by Rajveer and Shiv Kumar and they were acquitted. 10. The High Court while affirming the conviction, accepted the conspiracy theory of the prosecution for the murder of Kamla Rani. The Court also accepted the last seen together evidence against appellant Surendra Kumar. Noting the absence of credible explanation from Surendra, on the circumstances of the incident, the appeal of the brothers Surendra and Ramveer was dismissed by the High Court, leading to present challenge. 11. As the case against the appellants is entirely based on circumstantial evidence, it is necessary to determine whether the available evidence lead only to the conclusion of guilt and exclude all contrary hypothesis. The enunciation on the law of circumstantial evidence stood the test of time since Hanumant Vs. State of Madhya Pradesh1 where Mahajan J., has written as under:- \u201c10\u2026\u2026\u2026\u2026It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused\u2026\u2026\u2026\u2026\u2026\u201d 12. The nature, character and essential proof required in criminal cases was discussed in detail by Fazal Ali J in Sharad Birdhichand Sarda vs. State of Maharashtra2 and the proposition of law culled out on circumstantial evidence was approved in many subsequent judgments and was recently reiterated by Krishna Murari J., writing the opinion for a three Judges Bench in Shailendra 1 AIR 1952 SC 343 2 (1984) 4 SCC 116 Rajdev Pasvan & Ors. Vs. State of Gujarat & Ors. 3 where it was succinctly laid down as under:- \u201c17. It is well settled by now that in a case based on circumstantial evidence the courts ought to have a conscientious approach and conviction ought to be recorded only in case all the links of the chain are complete pointing to the guilt of the accused. Each link unless connected together to form a chain may suggest suspicion but the same in itself cannot take place of proof and will not be sufficient to convict the accused.\u201d 13. Proceeding with the above proposition of law, let us now examine whether the circumstances here satisfactorily prove that Kamla Rani was murdered because her husband had an issue with her appearance. The unhappiness of the appellant No. 2 with his wife is projected by the testimony of Santari (PW-6) and Nain Singh (PW-7) and similar thing is also mentioned in the FIR written by Nain Singh (PW-7) as, dictated by Baldev Singh, the father of the deceased. The reliability of the evidence of PW6 and PW7 is however to be tested in the backdrop of the fact that PW7 Nain Singh and Shravan Kumar (husband of PW-6) were charged with the murder of their deceased sister\u2019s father-in- 3 (2020) 14 SCC 750 law i.e. Om Prakash alias Mallu. Both were named in the FIR 157 of 2000 registered under Section 302 and 506 of the IPC and were detained in jail in the year 2000. The testimony of PW-6 and PW-7 was recorded in Court, much after Shravan Kumar (husband of PW-6) and Nain Singh (PW-7) were released from jail. As such it cannot be ruled out that PW-6 and PW-7 had strong reason for implicating the appellants. Therefore, the motive attributed to the appellants in the evidence of PW-6 and PW-7, would fail the test of legal scrutiny in the absence of any corroborative evidence. 14. The appellant Ramveer was married with Kamla Rani and no criminal act is attributed to him. His conviction is entirely based on the theory that he hatched a conspiracy with his brother and father to eliminate Kamla Rani as he was unhappy with her looks. This appears to be far fetched because prosecution failed to adduce any evidence to prove the meeting of minds of the two brother or with the other two accused Shiv Kumar and Rajveer to eliminate Kamla Rani. The unhappiness attributed to the husband cannot reasonably implicate his brother Surendra Kumar or the two unrelated accused. In any event the additional charge against Shiv Kumar alias Pappu and Rajveer was under Section 394 IPC but no such charge of robbery is attributed to the present two appellants. Most significantly there is no common conspiracy theory connecting all the accused in the case. The prosecution as can be noted, failed to establish any criminal conspiracy between Surendra and Ramveer on one hand and the accused Shiv Kumar and Rajveer who additionally were charged with robbery, on the other hand. Therefore, the theory of common intention or meeting of mind between the appellants and the two acquitted accused Shiv Kumar and Rajveer, must be discarded as implausible. 15. In any case, even Ramveer\u2019s dissatisfaction with his wife may not provide an acceptable and strong enough motive for the husband to conspire and kill Kamla Rani. This is pertinent since no role whatsoever is attributed to the husband by the evidence on record. Ramveer may or may not be having a cordial relation with the deceased but it can\u2019t be said with certainty that killing her was the only option available to him to avoid the company of the deceased. 16. Equally telling is the testimony of PW1 and PW2 who heard gun shots and soon thereafter saw the two acquitted accused Shiv Kumar and Rajveer removing ornaments from the dead body of the deceased. The witnesses confronted and followed both robbers for some distance. They were present at the spot and saw part of the crime but they never implicated the brother-in-law, who was last seen with the deceased. However, the Court refused to give credence to their testimony by describing them as chance witnesses. The PW-1 and PW-2 as the only ones present near the place of occurrence, do not implicate the appellant No. 1 with the crime. The courts below however, discarded the evidence of these two key witnesses who heard firing and also saw a part of the crime, by treating them as chance witnesses. The presence of PW1 and PW2 near the place of occurrence was natural and their testimony on the sequence of crime at the place of occurrence was cogent and consistent. Both had not only seen the robbery but also confronted the robbers and followed them for a while. The Courts below in our view erred in not treating both as independent witnesses. Their testimony would be of value to show that the appellant Surendra Kumar had no connection with the two robbers and his innocence could then be inferred without much difficulty. 17. We may now examine the role and conduct of the appellant No. 1 Surendra Kumar who was escorting the deceased from her parental home on his scooter and is the last person seen in the company of the deceased. The Court below however has relied upon Section 106 of the Indian Evidence Act to connect him with the crime. This according to us was the incorrect approach inasmuch as the burden to prove the guilt is always on the prosecution and cannot be shifted to the accused by virtue of Section 106 of the Evidence Act. This proposition of law on criminal jurisprudence stood the test of time since Emperor Vs. Santa Singh4 where Din Mohammad J., observed as under:- \u201c28. \u2026\u2026\u2026\u2026Section 106 of the Evidence Act, cannot be used to strengthen the evidence for the prosecution. The 4 AIR 1944 Lahore 339 (FB) prosecution must stand or fall on the evidence adduced by it and until a prima facie case is established by such evidence, the onus does not shift on to the accused. Mere proof that an incriminating article is found in premises occupied by a number of persons does not in itself establish prima facie the guilt of any particular person or all of them jointly. That being so, they cannot be called upon after such evidence to establish their innocence. They can only be called upon to do that when the evidence has established a prima facie case against any one or more of them or all of them\u2026\u2026\u2026\u2026\u2026\u2026.\u201d In the present case, the prosecution failed to adduce acceptable evidence to prove the crime against the appellants and the Court according to us erred in shifting the burden of proving the innocence upon the accused, with the aid of Section 106 of the Evidence Act. 18. The next issue to be considered is whether there was any suspicious conduct of the appellant Surendra Kumar after the incident. Soon after the scooter was ambushed and Kamla Rani was shot dead, the appellant Surendra Kumar straight away rode the scooter to Phlawada village to inform Baldev, the father of the deceased. The post occurrence meeting between the deceased\u2019s father Baldev and Surendra, can be gathered from the fact that in the FIR lodged within half an hour of the incident, Baldev had specifically mentioned about absence of injuries on Surendra. The question is whether failure of the brother-in-law to confront the armed attackers and not suffer any injury thereby, can be a circumstance to implicate him. The reaction of witnesses who see violent crime can vary from person to person and to expect a frightened witness to react in a particular manner would be wholly irrational. Equally dangerous would be the approach of the Courts to reach certain conclusion based on their understanding of how a person should react and to draw an adverse inference when the reaction is different from what the Court expected. Explaining the fallacy in such approach Chinnappa Reddy J speaking for the Bench in Rana Pratap and others vs. State of Haryana5 observed the following; \u201c6. Yet another reason given by the learned Sessions Judge to doubt the presence of the witnesses was that their conduct in not going to the rescue of the deceased when he was in the clutches of the assailants was 5 (1983) 3 SCC 327 unnatural. We must say that the comment is most unreal. Every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counter- attacking the assailants. Every one reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way.\u201d Approving the above view, S.B. Sinha J., in Dinesh Borthakur Vs. State of Assam6 succinctly explained how guilt should not be inferred because of a particular type of reaction by an individual. The relevant parts are extracted below: - \u201c47. No hard-and-fast rule having any universal application with regard to the reaction of a person in a given circumstance can, thus, be laid down. One person may lose equilibrium and balance of mind, but, another may remain a silent spectator till he is able to reconcile himself and then react in his own way. Thus, merely because the appellant did not cry or weep on witnessing the dead bodies of his wife and daughter, cannot be made the basis for informing (sic inferring) his guilt.\u201d 6 (2008) 5 SCC 697 The above pronouncements in our view rightly prescribe that there can be no uniform or universal reaction for a crime witness and inferences must not be drawn on Court\u2019s assumption. 19. The fact that the appellant Surendra Kumar chose to first inform Baldev that his daughter was shot by miscreants instead of confronting the miscreants or informing the police, is not an unnatural reaction. Moreover, since Baldev on being informed had immediately registered the FIR at the Police Station, there was no occasion for either of the appellants to file a second FIR on the same crime. Therefore, the so called suspicious conduct after the incident, was wrongly inferred only because the appellant reacted in a particular manner. In the process, the Court failed to notice the vital fact that Baldev was informed of his daughter\u2019s killing by appellant Surendra. This conduct of the appellant makes it equally plausible that Surendra was innocent and had decided to act prudently instead of showing courage to the armed criminals. 20. We may also note here that the scooter in which Kamla Rani was travelling, was a dowry gift by her father and the appellant Surendra after informing the father about the incident, left the scooter in his custody. Only then, Surendra rushed back to his own village to inform about the incident to his brother and father. Next day, the same scooter was recovered by the police from the residence of Baldev. This would corroborate that Baldev learnt of the crime from the appellant Surendra. If Surendra was actually involved in the crime, would he have straight away proceeded to the village of the deceased to inform her father of the incident. The appellant may not have confronted the robbers nor suffered any injury. But this by itself cannot in our view lead to an inference that it was he, who murdered Kamla Rani. 21. Another key link in the chain of circumstances to connect Surendra with the murder was the fact that he was the last person to be seen alive with Kamla Rani and his alleged unnatural conduct after the incident. On being confronted with the armed miscreants, Surendra perhaps was too intimidated to offer any fight or resistance. The accused did not try to do anything valiant at the place of occurrence and instead straight away drove down to inform the deceased\u2019s father, at his village. With this information, Baldev managed to lodge the FIR. The police seized the scooter the next day from Baldev\u2019s residence. The scooter was a dowry gift and following the death of the newly married Kamla Rani, Surendra might have considered it appropriate to entrust the scooter to the deceased\u2019s father. The FIR and the scooter seizure memo (Exbt Ka-2) clearly show that Surendra did not run away as it has been assumed by the courts below. Confronted by the armed robbers, Surendra may not have counter attacked to invite injury upon himself but this by itself can\u2019t be construed as suspicious conduct. Yet his post incident conduct was found to be suspicious enough by the courts below, to link him with the murder. In the present case, no criminal act is attributed to Surendra and conspiracy between him and the two armed miscreants is not shown. Therefore to link the appellant with the murder is nothing more than a matter of surmises and conjectures. In fact, the evidence on record is consistent with the statement given by Surendra under Section 313 of the CrPC where he stated that near the forest area of Bathnor village, two armed miscreants stopped the scooter and shot his bhabhi and looted away the jewellery from her person. The appellant immediately informed about the incident to the father of the deceased. Thereafter he has also informed Ramveer (husband of the deceased). Then Surendra, Ramveer and their father Om Prakash reached the police station with the Gram Pradhan. But appellant Surendra, Om Prakash and Ramveer were detained on suspicion by police. Reading the evidence in the case, we feel that Surendra\u2019s explanation in his Section 313 statement is quite plausible but was not appropriately appreciated which has led to failure of justice against the accused. 22. Similarly for the husband Ramveer, there is no direct evidence to establish his role in the incident. As his conviction is entirely based on a conspiracy theory, it is essential to determine whether there was an agreement between the parties for doing an unlawful act and it must emerge clearly from evidence that there was meeting of mind towards a common goal between Ramveer and his brother and also between Ramveer and the two armed robbers. The case evidence on record does not however establish any such agreement between Ramveer and the other accused. Conspiracy is a matter of inference and inference must be based on solid evidence. In case of any doubt the benefit must inevitably go to the accused. The 2nd appellant\u2019s conviction simply because of his dislike for the deceased, even if accepted to be correct, would not in our opinion be justified in the absence of any evidence either direct or of conspiracy, to link him with the crime. 23. The conspiracy theory to kill Kamla Rani, only because she was not liked by her husband is far too improbable to accept since the prosecution failed to present any evidence to show meeting of minds and common intention of all accused. Ramveer may not have been happy with his wife but this by itself does not establish that he hatched a conspiracy with his brother Surendra and his father Om Prakash (who died during trial), to kill Kamla Rani. The simple fact of being unhappy with a person even if accepted, do not provide a strong enough motive to hatch a conspiracy to eliminate the person. But this aspect was ignored by the Court below to attribute motive for the murder. In our assessment the motive element in the chain of circumstances is not acceptable and the benefit of the broken link must be made available to the appellants. 24. In view of the foregoing, we are of the considered opinion that there are several missing components in the chain of circumstantial evidence and the High Court misdirected itself in finding support for conviction on such unclinching evidence. The innocence of the appellants is a distinct possibility in the present matter and when two views are possible the benefit must go to the accused. The impugned judgment is accordingly set aside with direction for immediate release of both appellants. It is ordered accordingly. 25. The appeal stands allowed with the above order. \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026J. [ROHINTON FALI NARIMAN] \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026J. B.R. GAVAI] \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026J. HRISHIKESH ROY] NEW DELHI APRIL 20, 2021",
        "736324": "CASE NO.: Special Leave Petition (civil) 14656 of 2000 PETITIONER: ALL INDIA SC & ST EMPLOYEES ASSN.& ANR. Vs. RESPONDENT: A. ARTHUR JEEN & ORS. DATE OF JUDGMENT: 12/04/2001 BENCH: S. Rajendra Babu & Shivaraj V. Patil JUDGMENT: WITH SPECIAL LEAVE PETITION (C) NO. 2377 OF 2001 J U D G M E N T Shivaraj V. Patil, J. L...I...T.......T.......T.......T.......T.......T.......T..J In these Special Leave Petitions, the judgment and order dated 10.4.2000 passed by the Division Bench of Madras High Court in Writ Petition Nos.16766-16772 of 1999, 17167, 17878, 18834 & 20598 of 1999 and 4064 of 2000 are under challenge. S.L.P. No. 14656 of 2000 is filed by the applicants in O.A. No. 93/99 before the Central Administrative Tribunal, Chennai Bench who were the respondents in the writ petition before the High Court. S.L.P. No. 2377 of 2001 is filed by the petitioners in W.P. No. 16766 of 2000 in the writ petition before the High Court. In short, the facts and events leading to filing of these Special Leave Petitions are :- The Railway Board issued Employment Notification No. 1 of 1995 dated 7.9.1995 inviting applications for 330 posts of Khalasis (Group-D) reserving 19% of posts for Scheduled Castes, 1% for Scheduled Tribes and 27% for OBCs besides 3% for Physically Handicapped and 20% for Ex-Servicemen. In response to the Notification, 58,675 applications were received, out of them 32,563 candidates were found eligible and called for interview. The Railway Board by its letter dated 17.5.1996 communicated its decision to prepare a panel for 917 vacancies on the ground of increase of vacancies from 330 to 917. The selection of candidates was to be made on viva voce test only. The candidates were interviewed from July 1996 to February 1997 by different committees. The composition of the committees was challenged in O.A. No. 28/1997 before the Central Administrative Tribunal, Chennai Bench. The Tribunal by its order dated 17.9.1997 struck down the Railway Boards instructions on the basis of which committees were constituted for interview. Thereafter the Railway board issued fresh instructions on 29.4.1998 for constituting committees as per para 179 of the Indian Railway Establishment Manual (I.R.E.M.). The second round of interviews were conducted afresh from 26.06.1998 to 28.09.1998 for 75 days by different committees. Out of 32,563 candidates, only 25,271 candidates appeared for the interview. Another O.A. No. 543/1998 was filed seeking direction that the course completed Act Apprentices should be given preference but the same was dismissed on 17.9.1998. Ultimately merit list was published on 22.12.1998 and a panel of 917 selected candidates was published in the newspapers on 30.1.1999. The candidates selected were informed about their selection. O.A. No.93 of 1999, O.A. No. 103 of 1999, O.A. No. 153 of 1999, O.A. No. 202 of 1999, O.A. No. 260 of 1999 and O.A. No. 294 of 1999 were filed before the Tribunal challenging the selection of the candidates. O.A. No. 367 of 1999 was filed by a selected candidate seeking direction to complete the process and to issue appointment. The respondents resisted these O.As. on the grounds that O.As. filed in the nature of PIL were not maintainable; the applicants could not be said to be aggrieved persons without showing whether they were members of the association and whether they applied for the said posts; all the material allegations contrary to their stand made in the O.As. were denied; that the Railway Administration did not give any particular direction or instruction in the matter of selection and that no mala fide practice was followed. It was also pleaded that there was no violation of settled procedure and guidelines; the selection was made on the basis of performance of the candidates in the viva voce; further there was no arbitrariness in the selection of candidates and that the procedure followed in the earlier selection made in 1989-90 was followed in the present selection as well. The Tribunal quashed the panel of selected candidates giving the reasons that number of vacancies originally notified were 330 but the panel of selected candidates had been drawn for 917 without earlier notifying the increase in vacancies; only 18 Physically Handicapped candidates had been selected instead of 27 candidates on the basis of 3% reservation for the entire 917 posts; instead of finding the selection zone, applications of SC/STs were received on inter-State basis and that the marking pattern in the selection in the absence of guidelines to 80% marks had led to wide variations. The Tribunal, however, noticed that allegations of mala fide and bias had not been established. Aggrieved and affected by the order of the Tribunal, the successful candidates, who were provisionally selected, filed the writ petitions in the High Court challenging the order passed by the Tribunal. The High Court, on a detailed examination of respective contentions raised by the contesting parties, held that the rule of reservation was properly followed except to the extent of shortfall by 1% in regard to the Physically Handicapped category; the procedure prescribed in para 179 of I.R.E.M. was substantially complied with; the awarding of marks in two categories to the extent of 80% was in order; that association could not agitate the case of all persons as it depended on the facts of each individual member and that no resolution of authorization to file the O.A. was produced. The High Court also observed that the Tribunal could not act as a court of appeal in appreciating the contentions urged before it. Having due regard to the long-drawn process involved in the selection of candidates, the revised assessment of vacancies coming to only 382 in Group `D for the period upto March 2002 and considering totality of facts and circumstances of the case as indicated in the order under challenge, the High Court directed the authorities to proceed with the selection made and to appoint the selected candidates in the available vacancies. It was made clear that the authority concerned should select and appoint 3% Physically Handicapped candidates out of the candidates already selected instead of 2%. Before us, Mr. K.R. Chowdhary, learned Senior Counsel appearing for petitioners in S.L.P. No. 14656 of 2000, urged that the High Court failed to appreciate that the writ petitions had become infructuous as stated in the counter affidavit filed by the respondents in view of the fact that the Indian Coach Factory (I.C.F.) Administration had accepted the order of the Tribunal and cancelled the employment notification dated 7.9.1995 itself, on 3.10.1999; after 3.10.1999 pursuant to the cancellation of the employment notification, no right subsisted to the writ petitioners before the High Court and as such the High Court committed an error in proceeding to decide the case; the High Court also committed an error in holding that there was substantial compliance of para 179 IREM; the High Court was not right in holding that non-shortlisting and not confining preference to local candidates did not affect the selection. On the other hand, Mr. A.L. Somayaji, learned Senior Counsel for petitioners in SLP No. 2377/2001, made submissions supporting the order of the High Court except to the extent of the observation made in para 34 taking note of revised assessment of vacancies coming to only 382 in Group `D for the period upto 2002, and confining appointment to the available vacancies only. Although originally the notification was issued to fill up 330 vacancies, later they were increased to 917 after getting the approval of the Railway Board for additional 587 vacancies; since as many as 58,675 applications were received, out of them 32,563 candidates were called for interview and 25,271 candidates actually attended interview including large number of local candidates, no prejudice was caused by not inviting applications for additional vacancies; as observed by the High court, selected candidates were made to run from pillar to post for one reason or the other and they were asked to appear twice for the interview in pursuance of the notification No. 1/95 and that after a long drawn process the panel of selected candidates was prepared; the Tribunal committed a serious error in quashing the panel of selected candidates in its entirety when the selected candidates were not impleaded in the O.As. On this short ground alone, the High Court ought to have granted relief to the successful candidates fully covering all the 917 candidates. The learned Senior Counsel also submitted that no mala fides or arbitrariness was found in the procedure of selection of candidates. He urged that there was no justification to reduce the vacancies to be filed from 917 to 382, having prepared and published a panel of 917 selected candidates. He added that after the High Court passed the order, some candidates have been appointed; it may not be appropriate to upset the selection of candidates at this stage. Mr. Ranjit Kumar, learned Senior Counsel appearing on behalf of the Union of India, made submissions drawing our attention to counter-affidavit filed by the Union of India and urged that the selected candidates did not acquire any indefeasible right to be appointed against the existing vacancies and the authorities are under no legal duty to fill up all or any of the vacancies and particularly so when there are no vacancies to accommodate all the candidates; the authorities accepting the decision of the Tribunal cancelled the employment notification and subsequently after the High Court passed the order, further steps were taken and about 100 out of the selected candidates are already appointed. We have given our consideration to the rival contentions urged on behalf of the contesting parties. It is clear from the counter affidavits filed on behalf of Union of India and I.C.F. Administration that after the Tribunal passed the order in O.As. on 23.8.1999 and on implementation of the decision of the Ministry of Railways to enhance the hourly rate of incentive, concurrently by reducing the allowed time and in terms of their letter No. PC-V/98/1/7/4/1 dated 21.6.1999 with effect from.1.9.1999, there was drastic reduction of vacancies leading to surrendering of 866 posts of technicians (artisans) and 327 posts of Khalasis(helpers). In the changed situation, the I.C.F. Administration decided to implement the order of the Tribunal quashing the selection and issued press notification on 3.10.1999 canceling the employment notification dated 7.9.1995 and canceling the panel of the selected candidates. After issuing employment notification on 7.9.1995 to cover further two years recruitment for subsequent years, with the approval of the Ministry of Railways in 1996, it was decided to empanel 587 more candidates in the same recruitment process. The recruitment process was getting prolonged due to litigation. A number of appointments on compassionate grounds had to be made in the intervening period; owing to the raising of the age of superannuation from 58 to 60 years by the Government, there were no retirements from May, 1998 to April, 2000; more than these, implementation of Railway Boards decision to enhance the hourly rate of incentive and reduce the allowed time by 12% resulted in reduction of vacancies both in Group `C and Group `D. Vacancies in Group `D depend on arising of vacancies in Group `C technicians cadre and the progression of Khalasis (helpers) by Khalasis against 75% of technician vacancies; because of these reasons the anticipated vacancies did not materialize and the exercise of reassessment of vacancies made in September, 1999 indicated that only 382 vacancies would be available upto March, 2002. Responding to the allegation that these facts were not brought to the notice of the Tribunal during the arguments in O.A. No. 93/99, it was pointed out that after the closing of arguments before the Tribunal and on receipt of Boards instructions dated 21.6.1999 effective from 1.9.1999, the vacancies had to be re-assessed having regard to the reduction of manpower requirements and the vacancies so reduced came to 382 for the period upto March, 2002; the variance between the vacancies notified at 330 and the revised vacancies at 382 was not much. Neither any mala fides were attributed nor any arbitrariness was established on the part of the Railway Administration in re-assessing the vacancy position. Merely because the names of the candidates were included in the panel indicating their provisional selection, they did not acquire any indefeasible right for appointment even against the existing vacancies and the State is under no legal duty to fill up all or any of the vacancies as laid down by the Constitution Bench of this Court, after referring to earlier cases in Shankarsan Dash Vs. Union of India [1991 (3) SCC 47]. Para 7 of the said judgment reads thus :- It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana vs. Subhash Chander Marwaha [(1974) 3 SCC 220], Neelima Shangla vs. State of Haryana [(1986) 4 SCC 268] or Jatendra Kumar vs. State of Punjab [(1985) 1 SCC 122]. Hence the contentions raised in SLP No. 2377/2001 are untenable. Similarly the contention that the vacancies to be filled up could not be increased to 917 from 330 originally notified without there being subsequent notification is untenable in view of the changed situation as explained above. No fault can be found with the direction of the High Court to issue appointments only to available vacancies on merit out of the candidates included in the panel of selected candidates following rules of reservation and that too reserving 3% seats to Physically Handicapped instead of 2%. 382 vacancies would be available upto March 2002 possibly as of now all the 382 candidates may not be given appointment; the appointments may be given upto 330 or less. Further, the purpose of issuing notification and giving due publicity is to provide opportunity to as many eligible candidates as possible. The employment notification No. 1/1995 was issued on 7.9.1995 and the decision was taken to increase the posts on 17.5.1996, the time gap was hardly 8 months; as many as 58,675 made applications and 32,563 were called for interview. It was quite probable that all candidates eligible and interested including large number of local candidates, applied for the posts. The time gap of about 8 months between the original notification and the decision to increase posts not being much, it cannot be said that many of the eligible candidates were deprived of applying for the posts looking to the requirements of eligibility. As already stated above, in the changed situation only 382 posts are to be filed up upto March, 2002. The selected candidates are to be appointed on the basis of merit following rules of reservation applicable to different categories. The process of selection was long-drawn and the candidates were made to appear for interview twice. The candidates and their families have been waiting for long time from 1995 with great hope of getting jobs. Enormous money and man hours have been spent in completing the process of selection in preparing the panel of selected candidates. In this view there was no justification for the Tribunal to quash the entire panel of selected candidates. Although the candidates included in the panel showing their provisional selection do not get vested right to appointment, they will be surely interested in protecting and defending the select list. It is the admitted position that before the Tribunal the successful candidates whose names were included in the panel of selection were not made parties. The argument of the learned counsel that since the names and particulars of the successful candidates included in the panel were not given, they could not be made parties, has no force. The applicants before the Tribunal could have made efforts to get the particulars; at least they ought to have impleaded some of the successful candidates may be in a representative capacity; if the large number of candidates were there and if there was any difficulty in service of notices on them, they could have taken appropriate steps to serve them by any one of the modes permissible in law with the leave of the Tribunal. This Court in Prabodh Verma and Ors. Vs. State of Uttar Pradesh & Ors. [1984 (4) SCC 251] has held that in writ petitions filed against the State questioning the validity of recruitment of a large number of persons in service could not be proceeded with to hear and take decision adverse to those affected persons without getting them or their representatives impleaded as parties. In para 50 of the said judgment, summarizing the conclusions this Court in regard to impleading of respondents has stated that :- A High Court ought not to hear and dispose of a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least some of them being before it as respondents in a representative capacity if their number is too large to join them as respondents individually, and, if the petitioners refuse to so join them, the High court ought to dismiss the petition for non-joinder of necessary parties. This court in para 4 of the judgment in A.M.S. Sushanth & Ors. Vs. M.Sujatha & Ors. (2000 (10) SCC 197) has stated thus:- We find that none of the persons who were selected and whose appointments were set aside by the High Court had been impleaded as a party-respondent. It appears that a public notice was given in a representative capacity only with regard to the appointment to the post of Assistant Sericulture Officer. The direction of the High Court, however, is not confined to that post alone and it is the appointments to the other posts also which have been set aside. This could not be done. The principles of natural justice demanded that any person who was going to be adversely affected by the order should have had an opportunity of being heard. That apart, one would have expected the High Court to have considered the report submitted under Section 65 on its merits and then decided whether the said report should be accepted or not. Be that as it may, on the facts and in the circumstances of the present cases, we do not find any merit in any one of the contentions urged on behalf of the petitioners in S.L.P. No. 14656 of 2000. The High Court found that rules of reservation in regard to all other categories were followed and the Tribunal also found so; as regards Physically Handicapped, the reservation was to be increased to 3% instead of 2% among the candidates included in the panel on the basis of merits. Hence the grievance as to increase of posts from 330 to 917 without issuing notification was of no consequence. It is also noticed by the High Court that the large number of applications were received and interviewed including a large number of local candidates; the employment notification of 95 had been published in the employment exchanges in Chennai, Kanchipuram and Tiruvallur of the local unit of I.C.F., Chennai. Further it is also stated in the counter affidavit that the upper age limit itself has been raised upto to 33 years besides relaxation in the age limit for reserved community candidates and P.H./Ex.Servicemen etc. In our view, no prejudice was caused to the petitioners in S.L.P. No. 14656/2000. In regard to the other contention that 80% marks were awarded to the candidates without any guidelines, the High Court has taken the view that there was no arbitrariness in awarding 80% marks under two heads. We will do well to remember that The candidates were interviewed for Group `D posts (Khalasis); the selection was to be made only on the basis of viva voce test. The marks were to be awarded under the four heads as stated below.i) Personality / address - 40 marks ii) Ability to do the job - 40 marks. iii) Technical / academic qualification-10 marks. iv) Sports etc. - 10 marks. Under the head ability to do the job, marks to be awarded was on the basis of the candidates ability to lift a weight of 35 kg. without any physical strain. Marks were to be awarded looking to the technical /academic qualifications; so also for sports and marks were to be awarded for personality and address. Having regard to the nature of different heads for which marks were to be awarded that too for filling up Group D posts of Khalasis, it cannot be said that there could be wide variance or arbitrariness in awarding narks. The procedure followed in viva voce test is again indicated in the reply statement filed on behalf of the Railway Administration before the Tribunal itself. It is stated that the interview was conducted by 3 committees with 4 members each representing SC/ST/Minority/OBC for 75 days. To maintain secrecy, a system which was evolved in the previous selection with the approval of the then Chief Personnel Officer (CPO) in the year 1989-90 for nomination of the Committee Members was adopted this time also, as detailed below:- On the previous day afternoon, the three selection committees with four officers will be formed by Deputy Chief Personnel Officer/General [Dy. CPO/G] with due representation of SC/ST/OBC/Minority. These 12 officers will be intimated over phone by Dy. CPO/G or through his Confidential Assistant without mentioning which committee they belong to. The sealed cover containing three committees will be handed over to Senor Personnel Officer/Recruitment and training (SPO/R&T) and the same will be opened by SPO/R&T in the presence of the all twelve officers on the day of viva voce after getting signature from one or two offices on the sealed cover to acknowledge that the sealed cover is in tact. On the first two days [viz. 22nd and 23rd June 1998] CPO has nominated the committees. Thereafter the Dy. CPO/G. had nominated the committees. In pursuance there of, the committee members will take position in their respective committee rooms allocated and conduct the interviews. After the closure of the interview, on each day, the signed mark statements of each committee will be kept in a cover duly signed by the officers in the outer cover and sealed. These sealed covers will be handed over to Dy. CPO/G by the Personal Officer of the respective committee, for safe custody. In the absence of Dy. CPO/G, SPO/R&T will receive and hand over the same to Dy. CPO/G, when he resumes duty. After the interview were over, a decision was taken to hand over the mark statement in 220 sealed covers to Railway Recruitment board/Chennai[RRB] for data entry and form a draft panel following all the reservation rules for SC/ST/OBC etc. The 220 sealed covers were taken to RRB by D.DPO/G and SPO/R&T in 2 sealed boxes and handed over on 12.10.1998. On 22.12.1998, the RRB returned the mark lists along with the merit lists an a floppy containing date for all the 25,271 candidates. The data entries were verified and a panel of 917 selected candidates formed with CPOs approval, after following the reservation rules for SC/ST/OBC/Physically Handicapped and Ex- servicemen. Thereafter, the panel was published in the Newspapers viz, Indian Express and Daily Thanthi on 30.01.1999. Simultaneously, the successful candidates were informed that they have been provisionally selected for Gr. D posts and further action will follow in due course. At this stage, the applicants have filed the present OA and this Honble Tribunal on 08.02.1999 passed an order directing the respondents to maintain `statusquo. S.L.P. No. 14656 of 2000 is filed by the petitioners in O.A. No. 93 of 1999 before the Tribunal. In the said O.A., petitioner no. 1 was an association named All India Scheduled Caste and Scheduled Tribe Employees Association and petitioner no. 2 was an individual. The High Court has held that such a writ petition filed by an association was not maintainable. In our view it is unnecessary to examine this question in the light of conclusion reached on the merits of the respective contentions. The contention urged on behalf of the petitioners in S.L.P. No. 14656 of 2000 that the writ petitions had become infructuous in view of the fact that I.F.C. Administration itself had cancelled the employment notification No. 1 of 1995 dated 7.9.1995 accepting the judgment of the Tribunal cannot be accepted. The selected candidates who were seriously affected had every right to challenge the decision of the Tribunal on all the grounds available to them. The I.C.F. administration by its decision to cancel the employment notification and the panel of selected candidates unilaterally could not defeat or destroy the interest of the successful candidates. It is also submitted before us that the I.C.F. Administration pursuant to the judgment of the High court passed in the writ petitions has given appointment to about 100 candidates from out of the panel of the selected candidates. This being the position, we are of the view that the writ petitions had not become infructuous. The High Court has also noticed that those candidates who had participated in the interview could not challenge the selection before the Tribunal. Thus having regard to all aspects including the changed situation as to the reduction of vacancies from 917 to 382 on the basis of the revised assessment of vacancies as already stated above, the impugned order passed by the High Court is just and appropriate. In the light of what is stated above, we do not find any justification or valid reason to interfere with the impugned order passed by the High Court. Therefore, both the S.L.Ps. being devoid of any merit are liable to be dismissed. Accordingly, they are dismissed but with no order as to costs in the circumstances of these cases.",
        "1243363": "CASE NO.: Appeal (civil) 2589 of 2000 PETITIONER: JAYA GOKUL EDUCATIONAL TRUST RESPONDENT: COMMNR. & SECY. GOVERNMENT HIGHER EDUCATION DEPTT. THIRUVANANTHAPURAM, KERALA STATE AND ANR. DATE OF JUDGMENT: 11/04/2000 BENCH: M. JAGANNADHA RAO & M.B. SHAH JUDGMENT: JUDGMENT 2000 (2) SCR 1234 The following Judgment/Order of the Court was delivered : M. JAGANNADHA RAO, J. Leave granted. The appellant is a trust which wanted to establish a self-financing Engineering College and submitted an application during 1994-95 to the University of Kerala as well as to All India Council for Technical Education (hereinafter called the 'AICTE') There was an inspection by a team of Professors of the University and it recommended favourably when it stated that the facilities provided by the appellant would be sufficient for establish-ing an Engineering College. The AICTE sent a communication on 30.4.1995 stating that on the basis of the observations made by the Expert Committee and the recommendations made by the Central Regional Committee, State Level Committee and Central Task Force as per the provisions of the AICTE regulation dated 30.1.1994, the AICTE was granting conditional approval for establishing an Engineering and Technical College. The abovesaid approval was subject to the fulfilment of specific conditions mentioned in Annexure I and the general conditions mentioned in Annexure II to the said letter. In the event of contravention of the conditions, guidelines, norms and regula-tions of the AICTE, the AICTE could withdraw the approval at any time. Under the impression that the State Govt. was to grant permission, the appellant requested the State Government by letter dated 24.6.1995 for permission to start the college. Meanwhile, the Mahatama Gandhi University by their letter dated 31.5.1995 forwarded to the Government a list of Colleges and Courses for affiliation during the academic year 1995-96. The appellant's college was shown as one of the colleges among the affiliated colleges for the said period. The appellant sent a reminder to the Government on 26.8.1995 for permission for starting the college for the academic year 1995-96 and ultimately the Government refused permission by informing the appellant by a letter dated 16.8.1996 as follows : \"In inviting your attention to the reference cited, I am to inform you that Government regret their inability to comply with your request.\" Thereafter, the appellant filed writ petition O.P. No. 4612 of 1996 for quashing the said order and for a direction to sanction and establish an Engineering College. The learned Single Judge of the High Court by his judgment dated 14.1.1997 allowed the writ petition, quashed the above-said order of the government dated 16.8.1996 and directed the Mahatama Gandhi University to consider the appellant's application for permanent affiliation without reference to the above letter of the Government and pass appropriate order within 8 weeks from the date of the receipt of a copy of the judgment. The direction to pass a fresh order of affiliation was issued in view of the fact that the University contended before the learned Single Judge that unless the Government granted approval, permanent affiliation could not be granted. The Government was also directed to reconsider its decision. Against the said judgment of the learned Single Judge the Commis-sioner and Secretary of the Government (Higher Education Department) filed Writ Appeal No. 1024 of 1997. The Division Bench of the High Court allowed the appeal and set aside the order of the Government and dismissed the writ petition. The Division Bench, however, observed that the appellant was at liberty to make a fresh application to the Government of Kerala for according sanction for setting up the Engineering College or to request the Government to consider the earlier application, for a future academic year. It is against the abovesaid judgment of the Division Bench that this appeal has been preferred. Learned senior counsel for the appellant Sri T.L. Vishwanatha Iyer contended that the Division Bench erred in reversing the well considered judgment of the learned Single Judge and according to him after the coming into force of the AICTE Act, 1987, the statutes conferring power on the State or University to the extent they were inconsistent with the Central Act were void. In so far as institutions imparting technical education were concerned, the University or the State Government had no independent role to play except to the extent provided in the above said enactment, in the present case, the AICTE had made inspections and was satisfied that the necessary infrastructure was available and that the appellant would be able to conform to the required standards of the education. The AICTE had consulted the State of Kerala as well as the Mahatama Gandhi University. The University had granted conditional approval, as stated earlier. Therefore the AICTE consti-tuted a Task Force and obtained its opinion and thereafter granted its approval on 13.11.1995 subject to various conditions. According to the learned senior counsel it was indeed not necessary for the appellant to have applied to the State Government for any further sanction to establish the college. It might be that under the relevant statutes of the University, the University was required to obtain the \"views\" of the State Government but that did not amount to requiring any approval of the State Government and indeed if any such statute required the approval of the state Government, it would be void in view of what was stated by this Court in State of Tamil Nadu & Another v. Adhiyaman Educational & Research Institute & Others,[l995] 4 SCC 104. Learned senior counsel for the appellant Sri T.L. Viswanatha Iyer also contended that though the State Government stated in its counter affidavit filed in the High Court that the \"policy\" of the Government was not to grant approval to self-financing engineering colleges to be established, such a policy could not come in the way of the appellant in view of what this Court has stated in similar circumstances in Thirumuruga Kirupan & Variyar Thavathiru Sundara Swamigal Medical Education & Charitable Trust v. State of Tamil Nadu & Others, [1996] 3 SCC 15. On the other hand learned Additional Solicitor General Sri Mukul Rohtagi contended on behalf of the State of Kerala that the \"Policy\" of the State of Kerala at the relevant time was not to grant approval for establish-ment of more engineering colleges in the State. The Government had clarified in the counter affidavit filed in the High Court that the Government \"was not in a position\" to take a decision to start new engineering colleges, without properly assessing the necessity of more engineering graduates from the State and without exploring the possibility of employment opportunities in the country as a whole. Also there were four Engineering Colleges at Kannur, Trichur, Kottayam and Thiruvananthapuram Districts and three Private (Aided) Engineering Colleges at Palakkad, Ernakulam (Kothamangalam) and Kollam Districts. The Model Engineering College, Emakulam was a self- financing Engineering College and others were the colleges at Changannur and Pathansamthitta and there was a self-financing engineering college at Kasargode. There were also two unaided Engineering Colleges at Mallappuram and Thiruvananthapuram. Even though the appellant trust was not seeking aid from the Government and even assuming that it was financially self-suffi- cient, it would not be in the interests of the students & employment, to permit new engineering colleges to be established. Thus the Government policy was not to grant fresh approvals. If more approvals were granted, it might lead to commercialisation of education. The following points arise for consideration : (1) Whether in view of the judgment of this Court in State of Tamil Nadu & Another v. Adhiyaman Educational & Research Institute & Others, [1995] 4 SCC 104, the provisions of the AICTE Act, 1987 occupied the field and it was not necessary to obtain the further approval of the Government or other authority? Whether any statute in the State of Kerala if it required such approval, would be void? (2) Whether the orders of rejection passed by the State Government were valid on merits and whether the University should have granted further orders to continue the affiliation solely on the basis of the AICTE permission? Point 1 : This point is more or less covered by the judgment of this Court in State of Tamil Nadu & Another v. Adhiyaman Educational & Research Institute & Others,[l995] 4 SCC 104. But, in the context of section 10(K) regarding 'approval' for starting a technical institution, certain aspects of the judgment need to be highlighted. Before we refer to the abovesaid judgment, it will be necessary to refer to certain provisions of the AICTE Act and the relevant regulations. The abovesaid Act was an act to provide for the establishment of All India Council for Technical Education with a view to the proper planning and coordinated development of the technical education system throughout the country, the promotion of qualitative improvement of such education in relation to planned quantitative growth and the regulation and proper main- tenance of norms and standards in the technical education system and for matters connected therewith. Under section 10 of the Act, it is stated that it is the duty of the Council constituted under the Act to take all steps as the said Council might think fit for ensuring coordinated and integrated develop-ment of technical education and maintenance of standards. For the purposes of performing its functions under the Act, the Council may (a) undertake survey in various fields of technical education, collect data on all related matters and make forecast of the needed growth and development in technical education; (b) coordinate the development of technical education in the country at all levels; (c) allocate and disburse out of the Fund of the Council such grants on such terms and conditions as it may think fit to - (i) technical institutions, and (ii) Universities imparting technical education in coordination with the Commission; (d) promote innovations, research and development in established and new technologies, generation adoption and adaptation of new technologies to meet developmental requirements and for overall improve-ment of educational processes; (e) formulate schemes for promoting technical education for women, handicapped and weaker sections of the society; (f) promote an effective link between technical education system and other relevant systems including research and development organisations, industry and the community; (g) evolve suitable performance appraisal systems for technical institutions and Universities imparting technical education, incorpo-rating norms and mechanisms for enforcing accountability; (h) formulate schemes for the initial and in-service training of teachers and identify institutions or centres and set up new centres for offering staff development programmes including continuing education of teachers; (i) lay down norms and standards for courses, curricula, physical and instructional facilities, staff pattern, staff qualifications, quality instructions, assessment and examinations (j) fix norms and guidelines for charging tuition and other fees. The clause in Section 10(1) which is important in the present case is sub- clause (k) of section 10(1) and it provides that the Council might \"grant approval for starting new technical institutions and for intro- duction of new courses or programmes in consultation with the agencies concerned.\" Sub-clause (1) permits the Council to advice the Central Government in certain respects, sub-clause (m) lay down norms for granting autonomy, sub- clause (n) to take necessary steps to prevent commercialisation of technical education, clause (o) to provide guidelines for admission of students to technical institutions and Universities imparting technical education, clause (p) to inspect or cause inspection to any technical institution, clause (q) to withhold or discontinue grant, clause (r) to strengthen the existing organisa-tions etc., clause (s) to declare technical institutions as fit to receive grants, clause (t) to advice for declaring institutions to be deemed as universities, clause (u) to set up a National Board of Accreditation. Section 11 of the Act deals with inspection. Regulations have been framed on 31st October, 1994 by the AICTE in exercise of powers conferred on it by section 23(1) of the AICTE Act. Regulation 2 states that these regulations will be applicable to proposals relating to \"(a) grant of approval of the Council for establishment of new technical institutions including Universities or University depart-ments and deemed Universities and for technical institutions function-ing on the date of commencement of these regulations at Degree and Diploma levels; (b) grant of approval of the Council for introduction of any course or programme in the technical institutions and technical departments or Universities or deemed Universities; (c) grant of approval of the Council for existing intake capacity of seats and for increase in the annual intake capacity of seats in courses and programmes.\" Regulation 4 deals with the requirement of grant of approval and for the commencement of these regulations \"(a)............................. (b) no course or programme shall be introduced in any technical institutions, university or deemed university or university departments or college; or (c) no technical institutions, Universities or deemed Universities or University Departments or colleges shall continue to admit students for degree or diploma courses or programmes; (d) no approved intake capacity of seats shall be increased or varied : except with the approval of the Council. Reg.. 4(2).........................\" Regulation 5 deals with the Forms of the Applications and Regulation 6 deals with the conditions for grant of approval, Sub-clauses 1 of Regulation 6 deals with the financial position. Sub-clause 2 with the courses or programmes and sub-clause 3 deals with the power of admissions and sub-clause 4 with tuition fees etc. and sub-clause 5 with the staff and sub-clause 6 with the Governing Body of the private institutions and sub- clause 7 with other matters. Regulation 8 deals with scrutiny of applications. There is a prelimi-nary scrutiny of the applications by the Bureau RC of the Council. Sub-clause 4 of Regulation 8 reads as follows : \"Reg. 8(4) The Bureau RC shall invite comments/recommendations on the applications referred to in sub-regulation (3) from the follow-ing, namely : (i) the State Government concerned ; (ii) the affiliating University/State Board of Technical Education; (iii) Bureaus MPCD; (iv) Bureau BOS; (v) Bureau RA; (vi) the Regional Office.\" Sub-clause 5 of Regulation 8 requires the Regional Office to arrange visits by an Expert Committee constituted by the Council which is to forward its recommendations to the Council. Sub-clause 6 of Regulation 8 states that the State Level Committee constituted under Regulation 9(4) is to consider the recommendations of the State Government and others mentioned in regulation 8(4) and that it is to make its recommendations to the Central Task Force constituted under regulation 9(5) and consider the recommendations of the State Level Committee and send its recommendations to the Member Secretary of the Council. Sub-clauses 8 & 9 of Regulation 8 are important and read as follows : \"Reg. 8(8) If there is a disagreement in the recommendations made by the State Government, University or the Regional Committee, the Central Task Force shall invite representatives of the respective agencies for further consultations before making final recommenda-tion; (9) On the recommendation of the Central Task Force, the Council shall decide the question of grant of approval as sought for in the application : Provided that the Council may, for reasons to be communicated to the applicant, allow the approval with such restrictions or modifications as it may deem necessary.\" Sub-clause 10 of Regulation 8 states that the decision of the Council shall be communicated to the State Government concerned or the UGC, as the case may be, the concerned University or the State Board, the Regional Office and the applicant before 30th April in case the application was made before the preceding 31st December. The Tamil Nadu case : As stated earlier, the above provisions of the AICTE Act, came up for consideration in State of Tamil Nadu v. Adhiyaman Educational & Research Institute, [1995] 4 SCC 104. In the above matter, the State of Tamil Nadu granted permission on 17.4.84 to all private managements to start private Engineering colleges without financial commitment to government but subject to conditions. At that time in 1984, the AICTE Act was not on the statute book. The Government of Tamil Nadu granted permission to the Trust for the academic year 1987-88 to start an Engineering college. The University also granted permission on 21.11.87 for the academic year 1987-88. Later on, these permissions were withdrawn by the State after issuing show cause on 16.7.89. So did the University on 26.7.89. But by that date, the AICTE Act, 1987 had come into force. The learned Single Judge and the Division Bench held in favour of the Trust and quashed and orders of the Government and the University. The said judgments were affirmed by this Court. It was held that the AICTE Act was referable to Entry 66, List I of the Constitution of India, relating to \"co- ordination and determination of standards in institutions for higher education or research and scientific and technical institutions\". After the Constitutional Amendment (42 Amendment Act, 1976) Entry 25 of List III in the Concurrent List read : \"Education, included technical education, medical institution and Universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I; vocational and technical training of labour\". Thus, the State law under Entry 23 of List III would be repugnant to any law made by the Parliament under Entry 66 of List I, to the extent of inconsistency. The Tamil Nadu Act was of 1976 and the University Act was of 1923 and were laws referable to the List III. Whether they were pre- constitutional or a post constitutional laws, they would be repugnant to the AICTE Act passed by Parliament under Entry 66 of List I. In the above case this Court referred to the various provisions of the AICTE Act and on the question of repugnancy held (see p. 120 SCC) as follows : \"Hence on the subjects covered by the statute, the State could not make a law under Entry 25 of List III after the Forty-Second Amendment. If there was any such existing law immediately before the commencement of the Constitution within the meaning of Article 372 of the Constitution, as the Madras University Act 1923 on the enactment of the present Central Act, the provisions of the said law if repugnant to the provisions of the Central Act would stand impliedly repealed to the extent of repugnancy. Such repugnancy would have to be adjudged on the basis of the tests which are applied for adjudging repugnancy under Article 254 of the Constitution\". We shall now refer to the relevant paras of the above judgment dealing with the question of 'approval' for establishing technical institutions under section 10(K) of the AICTE Act. The Tamil Nadu Rules of 1976 made under the 1976 Act had no doubt excluded technical institutions from the purview of the Rules but this Court pointed out that the Rules were capable of being amended so as to extend to such technical institutions and that if they were so extended, the State Act of 1976 and the Rules would require \"approval' by the State Government and that would be void. It was stated (see p. 124 SCC) that inasmuch as the State Act, \"will overlap and will be in conflict with the provisions of the Central Act in various areas........., granting approval for starting new technical institution........., inspection of technical institution ............which are matters covered by the Central Act.\" This Court then referred to the Madras University Act, 1923. It was held (see p. 126 SCC) that section 10 of the Central Act dealt with various matters (including granting approval for starting new technical institutions), and that so far as these matters were concerned. \"it is not the University Act and the University but it is the Central Act and the Council created under it which will have the jurisdiction. To that extent, after the coming into force of the Central Act, the provisions of the University Act will be deemed to have become unenforceable\". Thus, in the two passages set out above, this Court clearly held that because of section 10(k) of the Central Act which vested the powers of granting approval in the Council, the T.N. Act of 1976 and the University Act, 1923 could not deal with any questions of 'approval' for establishment of technical institutions. All that was necessary was that under the Regulations, the AICTE Council had to consult them. Statutory powers of the State of Kerala and the M.G. University : The question is as to how far the judgment in the Tamil Nadu case is to be applied in the State of Kerala. Learned Additional Solicitor General stated before us that there was no statute in the State of Kerala corresponding to the Tamil Nadu Act of 1976 nor any other law which specifically required the 'approval' of the State Government. It was however contended that the Tamil Nadu case was concerned only with the standards of education and as to who could fix them. We are not inclined to agree. We have already pointed out under Point 1 that in the Tamil Nadu case, section 10(k) of the AICTE Act was referred to and the power of 'approval' for establishing a technical institution was consid- ered, in our opinion, even if there was a State law in the State of Kerala which required the approval of the State Government for establishing technical institutions, such a law would have been repugnant to the AICTE Act and void to that extent, as held in the Tamil Nadu case. The only provision relied on before us by the State Government which according to its learned senior counsel, amounted to a statutory requirement of 'approval' of the State Government, was the one contained in clause 9(7) of the Kerala University First Statute. It reads as follows : \"(9) Grant of affiliation : (1)..................... (3)..................... (7) After considering the report of the Commission and the report of the local inquiry, if any, and after making such further inquiry as it may deem necessary, the Syndicate shall decide, after ascer-taining the view of the Government also, whether the affiliation be granted or refused, either in whole or part. In case affiliation is granted, the fact shall be reported to the Senate at its next meet-ing :\" It will be noticed that clause 9(7) of the statute required that before the University took a decision on \"affiliation\", it had to ascertain the \"views\" of the State Government. The reference to the Commission in the above clause 9(7) is to the Commission of Inspection appointed by the University. Sub-clause (1) of clause (9) of the statute required \"verification of the facilities that may exist for starting the new colleges/course\". The Commission was to inspect the site, verify the title deeds as regards the proprietary right of the management over the land (and buildings, if any) offered, building accommodation provided, if any, assets of the management, constitution of the registered body and all other relevant matters, Sub-clause (2) of clause (9) stated that the affiliation \"shall depend upon the fulfilment by the management of all the conditions for the satisfactory establishment and maintenance of the proposed institutional courses of studies and on the reports of inspection by the Commission or Commissions which the University may appoint for the purpose\". As held in the Tamil Nadu case, the Central Act of 1987 and in particular, section 10(k) occupied the field relating the 'grant of approvals' for establishing technical institutions and the provisions of the Central Act alone were to be complied with. So far as the provisions of the Mahatma Gandhi University Act or its statutes were concerned and in particular statute 9(7), they merely required the University to obtain the 'views' of the State Government. That could not be characterised as requiring the \"approval' of the State Government. If, indeed, the University statute could be so inter-preted, such a provision requiring approval of the State Government would be repugnant to the provisions of section 10(k) of the AICTE Act, 1987 and would again be void. As pointed out in the Tamil Nadu case there were enough provisions in the Central Act for consultation by the Council of the AICTE with various agencies, including the State Governments and the Universities concerned. The State Level Committee and the Central Regional Committees contained various experts and State representatives. In case of difference of opinion as between the various consultees, the AICTE would have to go by the views of the Central Task Force. These were sufficient safeguards for ascertaining the views of the State Governments and the Universities. No doubt the question of affiliation was a different matter and was not covered by the Central Act but in the Tamil Nadu case, it was held that the University could not impose any conditions inconsistent with the AICTE Act or its Regulation or the conditions imposed by the AICTE. Therefore, the procedure for obtaining the affiliation and any conditions which could be imposed by the University, could not be inconsistent with the provisions of the Central Act. The University could not, therefore, in any event have sought for 'approval' of the State Government. Thus we hold, in the present case that there was no statutory require-ment for obtaining the approval of the State Government and even if there was one, it would have been repugnant to the AICTE Act. The University statute 9(7) merely required that the 'views' of the State Government be obtained before granting affiliation and this did not amount to obtaining 'approval'. If the University statute required 'approval', it would have been repugnant to the AICTE Act. Point 1 is decided accordingly. Point 2 : Factual position and pleadings in this case : On facts, the position was that the AICTE had granted approval on 30.4.95 expressly stating that this was \"on consideration of the observations made by the Expert Committee and the recommendations made by the Central Regional Committee, State Level Committee, Central Task Force as per the provisions of AICTE Regulations dated 31.10.94\". The AICTE had granted condition approval and the conditions were specified in Annexure I to the order and the general conditions were enlisted in Annexure II. The State Government was directed by the AICTE to announce admission in accordance with Regulation notified on 20.5.94 and based on the judgment of the Supreme Court in Unnikrishnan v. State of Andhra Pradesh, [1993] 1 SCC 645. The Mahatma Gandhi University had included this appellant in the list of colleges and courses which were granted affiliation during 1995-96 and the University had written to the State Government on 31.5.95 that as per statute 9(7), the \"views\" of the government were to be sent before granting affili-ation. The letter said that for that reason the proposals of the University were being submitted to the Government \"for necessary action\". The appellant had sent a reminder on 26.8.95. The State in its letter dated 16.8.96 to the appellant merely stated \"that government regret their inability to comply with your request\". No reasons were assigned in the said letter. But the State in its counter filed in the High Court tried to explain in para 3 that the Director of Technical Education had opined that during the year 1995-96, it might not be practicable to start the college for the Director could not ascertain the details of the facilities available. It was stated : \"he could not ascertain the infrastructural facilities provided by the appellant as per the norms prescribed by the All India Council of Technical Education. The All India Council for Technical Education and the Mahatma Gandhi University have sought for the remarks of the State Government. Para 4 of the Counter affidavit had further stated that the Government was not \"in a position to take a decision to start new Engineering college without properly assessing the necessity of more engineering gradu-ates in the State and exploring the possibility of employment oppor-tunity in the country to the extent possible\". The State Government in its counter then gave the names of the existing colleges and their location. We have already referred to these details. It also observed that there was widespread student prospects against starting new colleges and it was necessary to be cautious in the matter of starting new engineering colleges. It was stated that Government could not initially take a decision on the appellant's affiliation because of elections and that matter being one of 'major policy' the Government had subsequently \"taken a policy decision not to sanction any affiliation to such colleges either in the private sector or in the public sector for this year\". These are stated to be the reasons for the government's rejection by letter dated 16.8.96. State Government's refusal to grant permission is illegal and void on merits : As already stated, in view of the judgment of this Court in Tamil Nadu case, it is obvious that there is no need to approach the State of Kerala for its approval for starting the Engineering colleges. There is no power vested in the State under any State Law to grant approval and even if it was so vested, it would have been void in view of Tamil Nadu case. This ground of repugnancy alone would be sufficient to quash the State Government's letter dated 16.8.1996 refusing to give their approval. Even on merits, the reasons given by the State Government in its counter are not tenable in law. The Director of Technical Education of the State was a member of the State Level Committee as per regulation 9(4) of the AICTE Regulations. The Secretary, Technical Education of the State of Kerala was also a member of that Committee. The AICTE's approval dated 30.4.95 showed that the approval had been given by the State Level Com-mittee of which they were obviously members. It is, therefore, not under-standable how the Director had given a contrary opinion to the State Government. Regulation 8(4) of AICTE only required calling for the \"com-ments/recommendations\" of the State Government and of the University. In case, there was difference between the State Government, University or the Regional Committee the Central Task Force was to make a final recommen-dation under Regulation 8(4). Here the letter of approval of the AICTE dated 30.4.95 showed that the Central Task Force had given its approval. The said approval was based also on the inspection by the Expert Committee of the AICTE. Hence the State Government in its counter, could not have relied upon any contrary opinion of the Director of Technical Education. If the State Government had any other valid objections, its only remedy was to place its objections before the AICTE Council under the AICTE Act or before the Committees, e.g. State Level Committee etc. The so called 'policy' of the State as mentioned in the counter affidavit filed in the High Court was not a ground for refusing approval. In Thirwnuruga Kirupan and Variyar Thavathiru Sundara Swamigal Medical Education & Charitable Trust v. State of Tamil Nadu & Others, [1996] 3 SCC 15, which was a case relating to Medical Education and which also related to the effect of a Central Law upon a law made by the State under Entry 25 List III, it was held (see p. 35 para 34) that the \"essentiality certificate cannot be withheld by the State Government on any policy consideration because the policy in the matter of establishment of a new medical college now vests with the Central Government alone\". Therefore, the State could not have any \"policy\" outside the AICTE Act and indeed if it had a policy, it should have placed the same before the AICTE and that too before the latter granted permission. Once that procedure laid down in the AICTE Act and regulations had been followed under Regulation 8(4), and the Central Task Force had also given its favourable recommendations, there was no scope for any further objection or approval by the State. We may however add that if thereafter, any fresh facts came to light after an approval was granted by the AICTE or if the State felt that some conditions attached to the permission and required by the AICTE to be complied with, were not complied with, then the State government could always write to the AICTE, to enable the latter to take appropriate action. Decision of University in not granting further or fined affiliation wrong on merits : Admittedly, the University's inspection report was in favour of the appellant. This is clear from the appellant's letter dated 31.5.95 to the State Government. The only requirement as per the statute 9(7) was for the University to obtain the \"views\" of the State Government. Obtaining the 'views' of the State Government, as already stated, did not amount to obtaining its 'approval'. Procedure and conditions for affiliation could not be inconsistent with the provisions of the Central Act, in particular section 10(k) of the Regulation, and the University could not seek approval of Government. The University was also one of the agencies consulted by the council of the AICTE under Regulation 8. Once that was over, and approval was granted by the AICTE, if there was any default on the part of the College in compliance with the conditions of approval, the only remedy for the Univer-sity was to bring those facts to the notice of the AICTE so that the latter could take appropriate action. Reliance for the respondent was placed upon the subsequent report of the Syndicate dated 7.8.97. This report no doubt pointed out that the appellant had not complied with certain conditions mentioned in the approval dated 30.4.95 granted by the AICTE. Assuming certain fresh facts had come to the notice of the University, it could only place the said facts before the AICTE. Thus, the University ought to have considered the grant of final or further affiliation without waiting for any approval from the State Govern-ment and should have acted on the basis of the permission granted by AICTE and other relevant factors in the University Act or statutes, which are not inconsistent with the AICTE Act or its Regulations. For the aforesaid reasons, we set aside the judgment of the Division Bench of the High Court and uphold the reasoning of the learned Single Judge in his judgment in OP - 4612/96 dated 14.1.1997. We hold that the approval of the AICTE was sufficient, we do not also think that it was necessary for the learned Single Judge to direct the State Government to reconsider its decision. The learned Single Judge's order quashing the letter of the State Government dated 16.8.96 is upheld. The direction to the Mahatama Gandhi University to consider the application of the appellant for final affiliation or continuance of affiliation is confirmed and this is to be done on the basis of the approval granted by the AICTE dated 30.4.95, or any other relevant factors in the University Act or its statutes, which are not inconsistent with the AICTE Act or its Regulations. The appeal is allowed and disposed of as stated above. There will be no order as to costs. M. JAGANNADHA RAO, J. The petitioner was not a party in the High Court of Kerala and this Special Leave Petition was filed with leave of this Court. We find that the petitioner has already filed a Writ Petition in the Delhi High Court namely CWP No. 952 of 1998 and the same is pending. It will be for the petitioner to have the said matter disposed of by the High Court of Delhi. Therefore, this special leave petition is dismissed as premature.",
        "154395703": "1 APL823.16+1.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY : NAGPUR BENCH : NAGPUR. CRIMINAL APPLICATION (APL) NO. 823 OF 2016 AND CRIMINAL APPLICATION (APL) NO. 209 OF 2017 ............... Criminal Application (APL) No. 823 of 2016 APPLICANT : Bharat Bhushan S/o Vipin Chouguley, Aged 65 years, Occu. Professional , R/o Jaika Apartments, Civil Lines, Nagpur - 440 001. VERSUS RESPONDENTS: 1] State of Maharashtra, through its Secretary, Ministry of Home, Mumbai - 400 032. 2] State of Maharashtra, Through Sub-Inspector of Police Station, Sadar, Nagpur. 3] Smt. Rachana Sanjay Singh, Age 50 years, R/o 9, Mecosabagh, Christian Colony, Kadbi Chowk, Jaripatka, Nagpur. ---------------------------------------------------------------------------------------------- Shri Ranjeet B. Chougulay, Advocate for the applicant Smt. S. S. Jachak , A. P. P. for non-applicant nos.1 and 2 Shri U. P. Dable, Advocate for non-applicant no.3 ---------------------------------------------------------------------------------------------- With Criminal Application (APL) No. 209 of 2017 APPLICANT : Prashant S/o Ashok Satralkar, Aged 45 years, R/o All Saints House compound, Opp VCA, Nagpur - 440 001. 2 APL823.16+1.odt VERSUS RESPONDENTS: 1] State of Maharashtra, through its Secretary, Ministry of Home, Mantralaya, Mumbai - 32. 2] Deputy Commissioner of Police, Sadar Zone, Nagpur. 3] Assistant Commissioner of Police, Sadar Zone, Nagpur. 4] State of Maharashtra, through Sub-Inspector of Police Station, Sadar, Nagpur - 440 001. 5] Smt. Rachana Sanjay Singh, Head Mistress, St. Ursula's Girls High School, Civil Lines, Nagpur - 440 001. ---------------------------------------------------------------------------------------------- Shri Rohit R. Chouguley, Advocate for the applicant Smt. S. S. Jachak , A. P. P. for non-applicant nos.1 to 4 Shri U. P. Dable, Advocate for non-applicant no.5 ---------------------------------------------------------------------------------------------- CORAM : PRASANNA B. VARALE and ARUN D. UPADHYE, JJ. DATE : NOVEMBER 09, 2017. ORAL JUDGMENT (Per Prasanna B. Varale, J). 1] Heard Shri R.B. Chouguley and Shri R.R.Chouguley, learned counsel for the applicants, Smt. S.S. Jachak, the learned Additional Public Prosecutor for non-applicant nos.1 and 2 and non- applicant nos.1 to 4, in respectiv applications and Shri U.B. Dable, 3 APL823.16+1.odt learned counsel for non-applicant/complainant-Smt. Rachana Singh. 2] ADMIT. 3] Both these applications seek quashment of the First Information Report No. 270/2016, dated 26.09.2016, lodged at Police Station, Sadar, Nagpur for the offences punishable under Sections 354(a)(4), 295(a) of the Indian Penal Code and under Sections 66A and 67 of the Information Technology Act, 2000. 4] The report was lodged at the instance of informant Smt. Rachana Sanjay Singh i.e non-applicant no.3 in APL No.823/2016 and non-applicant no.5 in APL No.209/2017, stating therein that she is working as Principal in Saint Ursula's Girls High School and Junior College, Nagpur and the accused persons i.e. present applicants and other accused one Samsan Manwatkar (who is not before this Court) posted, exchanged and re-posted certain objectionable material by way of 'Whatsapp' messages, e-mails and postal letters. It is submitted that this material is circulated and the material is an obscene material, resulting in her defamation as well as the religious hates. 4 APL823.16+1.odt 5] We first deal with APL No.823/2016 of applicant Bharat Bhushan Chouguley. Mr. R. B. Choguley, learned counsel appearing for this applicant submitted that the alleged material in the form of Whatsapp messages, e-mails and the letters are said to be received by the complainant in the year 2013. He firstly submitted that the applicant is a professional, working as a Chartered Accountant and is a member of Institute of Chartered Accountants of India. The applicant is having very good academic career at his credit. He submitted that the applicant himself is a follower of Christen religion and was an elected secretary of the body of christens namely 'Nagpur Diocese'. He submitted that the applicant has served the said body as a Secretary for a period of three years and he himself is a very conscious of the welfare of students taking education in the school and Saint Ursula's Girls High School, Nagpur is one of the schools being managed by the body namely 'Nagpur Diocese'. 6] The learned counsel then submitted that the alleged communications by way of 'Whatsapp' messages, e-mails and postal letters, are of the year 2013, whereas the report came to be lodged as belatedly as in year 2016 i.e. after three years and no explanation is 5 APL823.16+1.odt coming forward in the report for the said delay. The submission of the learned counsel is the report was lodged against the applicant only to malign his image. The learned counsel then submitted that the complainant Smt. Rachana is not the member of the 'Whatsapp' group and it is specifically stated in the report that one Prashant Satralkar (applicant in APL 209/2017) has formed a 'Whatsapp' group and the applicant, other accused Samson Manwatkar and other persons are the members of this group. It is further stated that there was exchange of some objectionable material. He submitted that in the report, the complainant has made false allegation against the applicant that the applicant was insisting upon the tribal girls to offer prayers in the Church and even if the girls were not ready to offer the prayer, they were asked to offer prayer forcibly. It is also alleged that there was mischief in the administration of the school such as theft committed of paddy, which was made available in the scheme known as 'Mid Day Meal'. The learned counsel then submitted that insofar as the material referred to in the report namely e-mails is concerned, it is the specific statement of the complainant that Prashant Satralkar had forwarded those e-mails and also stated that it was Shri Satralkar, who circulated the 6 APL823.16+1.odt objectionable material against the complainant as well as the religious hates. 7] The learned counsel, by inviting our attention to the 'Whatsapp' messages referred to in the report submitted that even if these messages are taken on its face value, they are neither objectionable nor they relate to any such act of causing embarassment to the complainant. He submitted that these messages only show that the applicant is having concern about the goodwill of the trust and welfare of the children taking education in the institute being run by the trust. He then submitted that one of the messages show that the intention of the applicant was clearly bona fide and he wanted that the institute should not be blamed for corruption in the institute. The learned counsel then submitted that registration of offence against the applicant either for commission of offence under Indian Penal Code or under the Information Technology Act, is unsustainable as there is absolutely no material on record to attract the offences punishable under the Indian Penal Code and insofar as offence under Section 66A of the I.T. Act registered against the applicant is concern, it is an act of sheer 7 APL823.16+1.odt negligence on the part of respondent authorities. The learned counsel for the applicant placed heavy reliance on the judgment of the Hon'ble Apex Court reported in AIR 2015 SC 1523 in the case of Shreya Singhal .vs. Union of India. He submitted that the Apex Court while dealing with the provisions of Sections 66A, 69 and 79 of the I.T. Act, 2000 along with constitutional rights, more particularly, Article 19(1)(a), in its detailed judgment held that Section 66A is wholly unconstitutional and void. 8] Insofar as offence punishable under Section 295(a) of the Indian Penal Code is concerned, the learned counsel for the applicant placed heavy reliance on the judgment of the Apex Court in the case of Mahendra Singh Dhoni .vs. Yerraguntla Shyamsundar and another in Transfer Petition (Criminal) No. 23/2016. It was the further submission of the learned counsel for the applicant that there were certain irregularities in the administration of the school and with a bona fide intention that there must be a check to mal- administration, the applicant made complaint to the school authorities and the report lodged by the complainant is a counter blast to the complaint made by the applicant. To submit that 8 APL823.16+1.odt lodgment of the report with mala fide intention and the proceedings on the basis of the report and vague material, is an abuse of process of law and as such, the report lodged against the applicant is required to be quashed, the learned counsel for the applicant further placed reliance on the judgment of the Apex Court in the case of Madhavrao Jiwajirao Scindia and others .vs. Sambhajirao Chandrojirao Angre and others, reported in AIR 1988 SC 709 ; and State of Haryana and others .vs. Ch.Bhajan Lal and others reported in AIR 1992 SC 604. 9] Mrs. Jachak, the learned Additional Public Prosecutor appearing for the respondent authorities and Mr. Dable, the learned counsel appearing for the non-applicant/complainant vehemently opposed the application. 10] The learned Additional Public Prosecutor submitted that there are serious allegations against the applicant and the material is in the form of 'Whatsapp' messages. She further submitted that the said material is lowering down the reputation of the non-applicant complainant and the communications hurt the religious feelings and 9 APL823.16+1.odt therefore, the report was lodged against the accused persons, including the applicant. It is stated in the report that the messages are circulated in a 'Whatsapp' group and in the group, there are certain lady members. The learned APP then submitted that certain letters were handed over to one Dolly Agrawal and some other acquaintances with the complainant and in these letters, derogatory and objectionable material was written against the complainant. The learned APP and the learned counsel appearing for the complainant submitted that as the investigation is at the initial stage, it would be necessary to collect the other material to unearth the truth. The learned APP submitted that the applicant is not cooperating the investigating agency and as such, the investigating agency is unable to proceed further in the investigation. Thus, the learned APP as well as the learned for the complainant submitted that the application be dismissed. 11] On the backdrop of rival submissions of the learned counsel for the parties referred to above, we have gone through the material placed on record so also the material presented for our perusal by the learned APP. 10 APL823.16+1.odt 12] It reveals from a perusal of the report that a 'Whatsapp' group is formed by another applicant Prashant Satralkar and applicant Bharat Chouguley is one of the members of the group. On the backdrop of the allegations in the report and in view of the submissions of the learned counsel for the applicant, when we put a specific query to the learned APP about the material against the applicant, she submitted that the material is in the form of 'Whatsapp' messages. 13] The undisputed material against the applicant is in the form of 'Whatsapp' messages. We have gone through all these messages. The first message deals with an appreciation of former Judge i.e. Justice Pardiwala. The second message reads that - \"let's remove corruption in Nagpur Diocese by recovering Rs.15,00,000.00 from St. Ursula's School, due from July, 2015\". 14] Now, the first message clearly shows that it is only an appreciation of a former Judge i.e. Justice Pardiwala and had no concern with the complainant or the trust - Nagpur Diocese. The second message shows that the applicant is asking for removal of corruption and if the intention is of clean image and trust, then this 11 APL823.16+1.odt message would not call for any action for the alleged offences. Insofar as third message is concerned, it was the submission of the learned APP and the learned counsel for the non-applicant/ complainant that this message refers to an advertisement of a product namely 'Stay-on' capsules and oil. It was the submission of the learned APP and the learned counsel for the complainant that reference to the said product and contents of the message are derogatory in nature and they lowered down the image of the complainant. Perusal of the message reveals that this message is a response to the message received wherein there was a reference to the advertisement of the product. It is not the message generated by the applicant. Then by reading the other messages, we find that there is a reference to certain mischief played while distributing food-grains to the students under the government scheme. The learned counsel for the applicant submitted that the applicant had made certain complaints to the school authorities in respect of the misdeeds in the school. The applicant being a vigilant citizen if raises grievance against some misdeeds in the administration of the school, it cannot be said that the applicant had mala fide intention to lower down the image of the complainant. 12 APL823.16+1.odt 15] The learned counsel for the applicant was justified in placing heavy reliance on the judgment of the Hon'ble Apex Court in the case of Shreya Singhal .vs. Union of India (supra). It would be useful to refer to the relevant observations of the Apex Court, which read thus - \"95. It has been held by us that Section 66A purports to authorize the imposition of restrictions on the fundamental right contained in Article 19(1)(a) in language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action. We have held following K.A. Abbas' case (Supra) that the possibility of Section 66A being applied for purposes not sanctioned by the Constitution cannot be ruled out. It must, therefore, be held to be wholly unconstitutional and void. Romesh Thappar's Case was distinguished in R.M.D. Chamarbaugwalla v. The Union of India, [MANU/SC/ 0020/ 1957 : [1957] S.C.R. 930 in the context of a right under Article 19(1)(g) as follows: \"20. In Romesh Thappar v. State of Madras [MANU/SC /0006/1950 : (1950) SCR 594] , the question was as to the validity of Section 9(1-A) of the Madras Maintenance of Public Order Act, 23 of 1949. That section authorised the Provincial Government to prohibit the entry and circulation within the State of a newspaper \"for the purpose of securing the public safety or the maintenance of public order.\" Subsequent to the enactment of this statute, the Constitution came into force, and the validity of the impugned provision depended on whether it was protected by Article 19(2), which saved \"existing law insofar as it relates to any matter which undermines the security of or tends to 13 APL823.16+1.odt overthrow the State.\" It was held by this Court that as the purposes mentioned in Section 9(1-A) of the Madras Act were wider in amplitude than those specified in Article 19(2), and as it was not possible to split up Section 9(1-A) into what was within and what was without the protection of Article 19(2), the provision must fail in its entirety. That is really a decision that the impugned provision was on its own contents inseverable. It is not an authority for the position that even when a provision is severable, it must be struck down on the ground that the principle of severability is inadmissible when the invalidity of a statute arises by reason of its contravening constitutional prohibitions. It should be mentioned that the decision in Romesh Thappar v. State of Madras [MANU/SC /0006/1950 : (1950) SCR 594] was referred to in State of Bombay v. F.N. Balsara [MANU/SC/0009/1951 : (1951) SCR 682] and State of Bombay v. United Motors (India) Ltd. [ MANU/SC/ 0095/1953 : (1953) SCR 1069 at 1098-99] and distinguished.\" 98. We have already held that Section 66A creates an offence which is vague and overbroad, and, therefore, unconstitutional under Article 19(1)(a) and not saved by Article 19(2). We have also held that the wider range of circulation over the internet cannot restrict the content of the right under Article 19(1)(a) nor can it justify its denial. However, when we come to discrimination under Article 14, we are unable to agree with counsel for the petitioners that there is no intelligible differentia between the medium of print, broadcast and real live speech as opposed to speech on the internet. The intelligible differentia is clear - the internet gives any individual a platform which requires very little or no payment through 14 APL823.16+1.odt which to air his views. The learned Additional Solicitor General has correctly said that something posted on a site or website travels like lightning and can reach millions of persons all over the world. If the petitioners were right, this Article 14 argument would apply equally to all other offences created by the Information Technology Act which are not the subject matter of challenge in these petitions. We make it clear that there is an intelligible differentia between speech on the internet and other mediums of communication for which separate offences can certainly be created by legislation. We find, therefore, that the challenge on the ground of Article 14 must fail. Procedural Unreasonableness 99. One other argument must now be considered. According to the petitioners, Section 66A also suffers from the vice of procedural unreasonableness. In that, if, for example, criminal defamation is alleged, the safeguards available under Section 199 Cr.P.C. would not be available for a like offence committed under Section 66A. Such safeguards are that no court shall take cognizance of such an offence except upon a complaint made by some person aggrieved by the offence and that such complaint will have to be made within six months from the date on which the offence is alleged to have been committed. Further, safeguards that are to be found in Sections 95 and 96 of the Cr.P.C. are also absent when it comes to Section 66A. For example, where any newspaper book or document wherever printed appears to contain matter which is obscene, hurts the religious feelings of some community, is seditious in nature, causes enmity or hatred to a certain section of the public, or is against national integration, such book, newspaper or document may be seized but under Section 96 any person having any interest in such 15 APL823.16+1.odt newspaper, book or document may within two months from the date of a publication seizing such documents, books or newspapers apply to the High Court to set aside such declaration. Such matter is to be heard by a Bench consisting of at least three Judges or in High Courts which consist of less than three Judges, such special Bench as may be composed of all the Judges of that High Court. 119. In conclusion, we may summarise what has been held by us above: (a) Section 66A of the Information Technology Act, 2000 is struck down in its entirety being violative of Article 19(1)(a) and not saved under Article 19(2). (b) Section 69A and the Information Technology (Procedure & Safeguards for Blocking for Access of Information by Public) Rules 2009 are constitutionally valid. (c) Section 79 is valid subject to Section 79(3)(b) being read down to mean that an intermediary upon receiving actual knowledge from a court order or on being notified by the appropriate government or its agency that unlawful acts relatable to Article 19(2) are going to be committed then fails to expeditiously remove or disable access to such material. Similarly, the Information Technology \"Intermediary Guidelines\" Rules, 2011 are valid subject to Rule 3 sub-rule (4) being read down in the same manner as indicated in the judgment. (d) Section 118(d) of the Kerala Police Act is struck down being violative of Article 19(1)(a) and not saved by Article 19(2).\" 16] The learned counsel for the applicant was also justified in submitting that the material falls too short to call for any action as 16 APL823.16+1.odt alleged in the report for the offences punishable under Sections 354(a)(4) and 295(a) of the Indian Penal Code. It will be useful to refer to the observations of the Hon'ble Apex Court in the case of Mahendra Singh Dhoni .vs. Yerraguntla Shyamsundar and another, in paragraphs 5, 6 and 7, which read thus - 5. The seminal issue that arises for consideration is whether the allegations made in the complaint constitute an offence under Section 295A of the IPC and whether this Court, in the obtaining factual matrix, relegate the trial at some other place or grant him liberty to file an application under Section 482 CrPC for quashing. At this juncture, we may refer to Section 295A of the IPC which reads as follows:- 295A. Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious belief :- Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of 273 [citizens of India], 274 [by words, either spoken or written, or by signs or by visible representations or otherwise], insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to 4[three years], or with fine, or with both.\" 6. Be it noted, the constitutional validity of Section 295A was assailed before this Court in Ramji Lal Modi v. State of U.P.,[AIR 1957 SC 620] which was eventually decided by a Constitution Bench. The Constitution Bench, adverting to the multiple aspects and various facets of Section 295A IPC held as follows :- 17 APL823.16+1.odt \"8. It is pointed out that s. 295A has been included in chapter XV of the Indian Penal Code which deals with offences against the public tranquility and from this circumstance it is faintly sought to be urged, therefore, that offences relating to religion have no bearing on the maintenance of public order, or tranquillity and, consequently, a law creating an offence relating to religion and imposing restrictions on the right to freedom of speech and expression cannot claim the protection of el. (2) of Art. 19. A reference to Arts. 25 and 26 of the Constitution, which guarantee the right to freedom of religion, will show that the argument is utterly untenable. The right to freedom of religion assured by those Articles is expressly made subject to public order, morality and health. Therefore, it cannot be predicated that freedom of religion can have no bearing whatever on the maintenance of public order or that a law creating an offence relating to religion cannot under any circumstances be said to have been enacted in the interests of public order. These two Articles in terms contemplate that restrictions may be imposed on the rights guaranteed by them in the interests of public order. 9. Learned counsel then shifted his ground and formulated his objection in a slightly different way. Insults to the religion or the religious beliefs of a class of citizens of India may, says learned counsel, lead to public disorders in some cases, but in many cases they may not do so and,, therefore, a law which imposes restrictions on the citizens' freedom of speech and expression by simply making insult to religion an offence will cover both varieties of insults, i.e., those which may lead to public disorders as well as those 18 APL823.16+1.odt which may not. The law in so far as it covers the first variety may be said to have been enacted in the interests of public order within the meaning of el. (2) of Art. 19, but in so far as it covers the remaining variety will not fall within that clause. The argument then concludes that so long as the possibility of the law being applied for purposes not sanctioned by the Constitution cannot be ruled out, the entire law should be held to be unconstitutional and void. We are unable, in view of the language used in the impugned section, to accede to this argument. In the first place el. (2) of Art. 19 protects a law imposing reasonable restrictions on the exercise of the right to freedom of speech and expression \"in the interests of\" public order, which is much wider than \"for maintenance of\" public order. If, therefore, certain activities have a tendency to cause public disorder, a law penalising such activities as an offence cannot but be held to be a law imposing reasonable restriction \"in the interests of public order\" although in some cases those activities may not actually lead to a breach of public order. In the next place s. 295A does not penalise any and every act of insult to or attempt to insult the religion or the religious beliefs of a class of citizens but it penalises only those acts of insults to or those varieties of attempts to insult the religion or the religious beliefs of a class of citizens, which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class. Insults to religion offered unwittingly or carelessly or without any deliberate or malicious intention to outrage the religious feelings of that class do not come within the section. It only Punishes the aggravated form of insult to religion when it is perpetrated with the deliberate and malicious 19 APL823.16+1.odt intention of outraging the religious feelings of that class. The calculated tendency of this aggravated form of insult is clearly to disrupt the public order and the section, which penalises such activities, is well within the protection of cl. (2) of Art. 19 as being a law imposing reasonable restrictions on the exercise of the right to freedom of speech and expression guaranteed by Art. 19(1)(a). Having regard to the ingredients of the offence created by the impugned section, there cannot, in our opinion, be any possibility of this law being applied for purposes not sanctioned by the Constitution. In other words, the language employed in the section is not wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting the fundamental right guaranteed by Art. 19(1)(s) and consequently, the question of severability does not arise and the decisions relied upon by learned counsel for the petitioner have no application to this case.\" 7. On a perusal of the aforesaid passages, it is clear as crystal that Section 295A does not stipulate everything to be penalised and any and every act would tantamount to insult or attempt to insult the religion or the religious beliefs of class of citizens. It penalise only those acts of insults to or those varieties of attempts to insult the religion or religious belief of a class of citizens which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class of citizens. Insults to religion offered unwittingly or carelessly or without any deliberate or malicious intention to outrage the religious feelings of that class do not come within the Section. The Constitution Bench has further clarified that the said provision only punishes the aggravated form of insult to religion when it is perpetrated with the deliberate 20 APL823.16+1.odt and malicious intention of outraging the religious feelings of that class. Emphasis has been laid on the calculated tendency of the said aggravated form of insult and also to disrupt the public order to invite the penalty. 17] The learned counsel for the applicant was also justified in placing reliance on the judgment of the Hon'ble Apex Court in the case of Madhavrao Jiwajirao Scindia .vs. Sambhajirao Chandrojirao Angre (supra). It would be useful to refer to the relevant observations of the Apex Court at paragraph 7, which read thus - 7. The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage. 21 APL823.16+1.odt 18] The learned counsel for the applicant was also justified in placing reliance on the judgment of Gujrat High Court in case of Mohd. Rizwan Fazluddin Kadri .vs. State of Gujrat in Spl. Criminal Application No. 1832/2009 in support of his submission that the report against the applicant for commission of offence under Section 67 of the I.T. Act falls too short to make out any case against the applicant. It would be useful to refer to the observations of the Gujrat High Court at paragraphs 4 and 5, which read thus - \"4. Contents of the complaint I have already briefly noted. As per the investigating agency, the petitioner had sent the above referred e-mail containing certain offending materials. Question is, even accepting the allegations of the investigating agency as true, whether offence under Section 67 of Information Technology Act can be stated to have been made out. Section 67 of Information Technology Act reads as follows: Publishing of information which is obscene in electronic form.- Whoever publishes or transmits or causes to be published in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to one lakh rupees and in the event of a second or subsequent conviction with 22 APL823.16+1.odt imprisonment of either description for a term which may extend to ten years and also with fine which may extend to two lakh rupees. 5. It can thus be seen that Section 67 seeks to punish publication of information through electronic form which is obscene in nature. Though term obscene has been used in the title of the section, in the main body of the section it is provided that any publication or transmission in the electronic form any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied shall be punished with specified penalty.\" 19] The learned counsel for the applicant was also justified in submitting that none of the material which is in the form of 'Whatsapp' messages is satisfying the test namely it being a lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons so as to call for an action under Section 67 of the I.T. Act. 20] The the learned Additional Public Prosecutor vehemently submitted that in the 'Whatsapp' messages, the applicant re-posted the advertisement of a product 'Stay-on' capsules and oil and the act of the applicant was with an ill intention, as observed by us above, 23 APL823.16+1.odt that message was in response to a message received by the applicant forwarded by somebody else. It is not even the case of the prosecution that said message was created by the applicant. Thus, we find no merit in the submission of the learned Additional Public Prosecutor in her opposition to the application. 21] The learned APP also made an attempt to submit that the applicant is not cooperating with the investigating agency. On a perusal of the material the learned counsel for the applicant submitted that by order dated 19.12.2016, this Court had permitted the investigating agency to continue with the investigation, but directed the agency not to take coercive steps against the applicants. The learned counsel submitted that whenever notice was issued to the applicant to remain present before the Investigating Officer, the applicant remained present before the agency and extended all the cooperation to the investigating agency. The learned counsel for the applicant submitted that the investigating agency was insisting upon the applicant to handover his mobile phone. The learned counsel further submitted that insistence of the agency was in the form of coercive step and as such, the applicant in view of the order of this Court dated 19.12.2016, refused to handover the mobile phone to 24 APL823.16+1.odt the agency and this act of the applicant cannot be termed as non- cooperation by the applicant to the investigating agency. We find considerable merit in the submission of the learned counsel. 22] Considering all the above referred aspects, in our opinion, the learned counsel for the applicant - Bharat Bhushan Vipin Chouguley has made out a case for allowing the application. 23] Insofar as APL No.209/2017 of applicant Prashant Satralkar is concerned, Mr. Rohit R. Choubule, the learned counsel for the applicant made an attempt to submit before us that the applicant is similarly situated with the other applicant Bharat Chougule, whose application this Court is inclined to allow and as such the application of applicant Prashant may also be allowed. We are unable to accept the submission of the learned counsel for the reason that in the report, it is specifically stated that applicant Prashant is the person, who has formed a 'Whatsapp' group, so also there is a reference to certain e-mails forwarded by the applicant. 24] Insofar as applicant Bharat Chouguley is concerned, the only material against the applicant is in the form of 'Whatsapp' 25 APL823.16+1.odt messages and he is only a member of the 'Whatsapp' group, whereas present applicant Prashant Satralkar is the person, who has formed the group. Insofar as applicant Prashant is concerned, apart from 'Whatsapp' messages, there is a reference to e-mails forwarded by this applicant. These mails are presented before us by the learned APP for our perusal. These e-mails are in detail and they are referring to the religious sentiments. On a perusal of these e-mails, we find that there is a specific reference of the complainant. It may not be necessary for us to refer to those e-mails in detail, but to show the material in the form of e-mails referring personally the complainant and levelling allegations against her, we may refer to part of one e- mail and the same reads as under - \"Hamare samaj me ek chawal choir principal hai....she sale ration of little school children and enjoys her personal life... like... Nayee-nayee gadi kharidna....Air travel karana...every week...And... Sarkari logon ko khushi karna....She do all stuff except teaching...etc.\" A bare perusal of the part of e-mail referred to above shows that the statement made therein is derogatory in nature and levelling personal allegations against the complainant. The material submitted for our perusal show that these mails are forwarded by the 26 APL823.16+1.odt applicant to the complainant. The period of exchange of these e-mails ranges from 06.2.2013 to 17.7.2014. Then, there is a reference to certain letters, under title \"Paramjyoti ki Raslila\". These letters are clearly derogatory in nature and maligning the image of the complainant and also bringing to disrepute the institute. Considering these factual aspects, we are of the opinion that the case of applicant Prashant differs from the case of applicant Bharat. Insofar as applicant Prashant is concerned, we find that the material against this applicant is prima facie sufficient enough to call for an action of registration of offence and the investigating agency is required to conduct thorough investigation in the matter. 25] As we have observed above while dealing with the application of applicant Bharat that the Apex Court by its judgment is pleased to truck down Section 66A of the I.T. Act, the offence under Section 66A against the applicant would not stand, but for the other offencess, the investigating agency is required to conduct investigation against the applicant on the backdrop of the specific material on record. In the result, APL No. 209/2017 deserves to be partly allowed. 27 APL823.16+1.odt 26] In the result, APL No.823/2016 of Bharat Bhushan Chouguley is allowed in terms of prayer clause (ii). APL No.209/2017 is partly allowed. The first information report registered against applicant Prashant at Police Station, Sadar, Nagpur vide Crime No. 270/2016 is quashed only in respect of offence under Section 66A of the Information Technology Act, 2000. The respondent authorities to take necessary steps and continue with the criminal proceedings insofar as other offences against applicant Prashant Satralkar is concerned, namely offences punishable under Sections 354(a)(4), 295(a) of the Indian Penal Code and under Section 67 of the Information Technology Act, 2000. The criminal applications are disposed of accordingly. JUDGE JUDGE Diwale",
        "94780858": "THE HIGH COURT OF MADHYA PRADESH 1 WP 8154 of 2020 Jagdish Singh Jatav vs. State of MP and Others Gwalior, Dated :21/01/2021 Shri Vibhor Kumar Sahu, counsel for the petitioner. Shri Abhishek Singh Bhadoriya, Panel Lawyer for the respondents/ State. This petition under Section 226 of the Constitution of India has been filed against the order dated 04/05/2020 passed by the Director, Public Education, MP, Bhopal, by which the appeal filed by the petitioner against the order of dismissal issued by the Joint Director, Public Education, Division Gwalior on 23/01/2020, has been dismissed. The necessary facts for disposal of present petition in short are that the petitioner was working as Upper Division Clerk in Government Girls Higher Secondary School, Gohad, District Bhind. He was convicted by judgment dated 17/06/2019 passed by JMFC, Gwalior in Criminal Case No.166/2016 for offene under Sections 341, 323/34 of IPC and was sentenced to undergo the rigorous imprisonment of three months and a fine of Rs.500/-. Criminal Appeal filed by the petitioner was dismissed by the Appellate Court by judgment dated 07/09/2019. Being aggrieved by the dismissal of his appeal, the petitioner has filed a Criminal Revision before this Court and by order dated 16/09/2019, his sentence has been suspended. The petitioner also remained in custody from 07/09/2019 to 16/09/2019. Challenging the impugned orders passed by the authorities, it is submitted by the counsel for the petitioner that even if the petitioner has been convicted for offence under Sections 323, 341, 34 of IPC but the offence committed by the WP 8154 of 2020 Jagdish Singh Jatav vs. State of MP and Others petitioner does not involve moral turpitude, therefore, the respondents have committed a mistake by terminating the services of the petitioner. Considered the submissions made by the counsel for the petitioner. Rule 19 of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 (In short Rules 1966), which provides for special procedure in certain cases, to which reliance has been placed by the appellants does not appear to be applicable in the instant case. The said Rule reads thus: \"19. Special procedure in certain cases.--Notwithstanding anything contained in Rule 14 to Rule 18-- (i) where any penalty is imposed on a government servant on the ground of conduct which has led to his conviction on a criminal charge, or (ii) where the disciplinary authority is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an inquiry in the manner provided in these Rules, or (iii) where the Governor is satisfied that in the interest of the security of the State, it is not expedient to hold any inquiry in the manner provided in these Rules, the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit: Provided that the Commission shall be consulted where such consultation is necessary, before any orders are made in any case under this Rule.\" From plain reading of Rule 19(i) of Rules 1966, it is clear that the departmental enquiry can be dispensed with in the case of the conduct of an employee which has led to his conviction on a criminal charge. However, it would be too harsh to hold that the employer is not entitled to consider the circumstances of the criminal case, and in spite of the nature of the offence, the employer has to issue an order of dismissal. WP 8154 of 2020 Jagdish Singh Jatav vs. State of MP and Others The Supreme Court in the case of The State Bank of India Vs. P. Soupramaniane by judgment dated 26-4-2019 passed in C.A. NO. 7011 of 2019 has held as under :- ''9. There can be no manner of doubt about certain offences which can straightaway be termed as involving moral turpitude e.g. offences under the Prevention of Corruption of Act,NDPS Act, etc. The question that arises for our consideration in this case is whether an offence involving bodily injury can be categorized as a crime involving moral turpitude. In this case, we are concerned with an assault. It is very difficult to state that every assault is not an offence involving moral turpitude. A simple assault is different from an aggravated assault. All cases of assault or simple hurt cannot be categorized as crimes involving moral turpitude. On the other hand, the use of a dangerous weapon which can cause the death of the victim may result in an offence involving moral turpitude. In the instant case, there was no motive for the Respondent to cause the death of the victims. The criminal courts below found that the injuries caused to the victims were simple in nature. On an overall consideration of the facts of this case, we are of the opinion that the crime committed by the Respondent does not involve moral turpitude. As the Respondent is not guilty of an offence involving moral turpitude, he is not liable to be discharged from service.'' Thus, it is clear that if an employee has been convicted for an offence involving moral turpitude, then he can be dismissed from his service, but if an employee has been convicted for an offence not involving moral turpitude, then his dismissal is not warranted. Moral Turpitude has been explained by the Supreme Court in the cases of Allahabad Bank Vs. Deepak Kumar Bhola reported in (1997) 4 SCC 1 and Pawan Kumar Vs. State of Haryana reported in (1996) 4 SCC 17. In the case of Pawan Kumar (Supra) it has been held as under :- ''12. \"Moral turpitude\" is an expression which is used in legal WP 8154 of 2020 Jagdish Singh Jatav vs. State of MP and Others as also societal parlance to describe conduct which is inherently base, vile, depraved or having any connection showing depravity. The Government of Haryana while considering the question of rehabilitation of ex-convicts took a policy decision on 2-2-1973 (Annexure E in the Paper-book), accepting the recommendations of the Government of India, that ex-convicts who were convicted for offences involving moral turpitude should not however be taken in government service. A list of offences which were considered involving moral turpitude was prepared for information and guidance in that connection. Significantly Section 294 IPC is not found enlisted in the list of offences constituting moral turpitude. Later, on further consideration, the Government of Haryana on 17/26-3-1975 explained the policy decision of 2-2-1973 and decided to modify the earlier decision by streamlining determination of moral turpitude as follows: \"... The following terms should ordinarily be applied in judging whether a certain offence involves moral turpitude or not; (1) whether the act leading to a conviction was such as could shock the moral conscience of society in general. (2) whether the motive which led to the act was a base one. (3) whether on account of the act having been committed the perpetrator could be considered to be of a depraved character or a person who was to be looked down upon by the society. Decision in each case will, however, depend on the circumstances of the case and the competent authority has to exercise its discretion while taking a decision in accordance with the above-mentioned principles. A list of offences which involve moral turpitude is enclosed for your information and guidance. This list, however, cannot be said to be exhaustive and there might be offences which are not included in it but which in certain situations and circumstances may involve moral turpitude.\" In order to find out as to whether the petitioner has committed an offence involving moral turpitude or not, it would be necessary for this Court to consider the allegations which were levelled against the petitioner. According to the WP 8154 of 2020 Jagdish Singh Jatav vs. State of MP and Others prosecution case, on 27/04/2016 at about 09:00 am, the complainant Radhakrishna Jatav was wrongfully restrained by the petitioner and two other co-accused persons and he was abused and with an intention to cause hurt to the complainant, he was assaulted by fists and blows as well as by a brick. The allegations of assaulting the complainant by brick was against the co-accused Nihal Singh. On the report lodged by the complainant, Crime No.166/2016 was registered at Police Station Thatipur, District Gwalior and after completing the investigation, the police filed the charge sheet against the applicant and other two co-accused persons. Charges under Section 341, 294, 323/34, 506 (II) of IPC were framed and by judgment dated 17/06/2019 passed by JMFC, Gwalior in Criminal Case No.4271/2016, the petitioner and other two co-accused persons were convicted for offence under Sections 323, 341/34 of IPC, whereas, the petitioner and the co-accused persons were acquitted for the charges under Section 294, 506 (II) of IPC. If the allegations which were made against the petitioner are considered, then it is clear that causing bodily hurt would not involve moral turpitude. The allegations of assaulting the complainant by a brick is against co-accused Nihal Singh and the only allegations against the petitioner were that he along with the co-accused persons, had wrongfully restrained the complainant and assaulted him by fists and blows. By no stretch of imagination, the allegation against the petitioner can be considered to be an offence involving moral turpitude. In the light of the judgment passed by the Supreme Court in the case of WP 8154 of 2020 Jagdish Singh Jatav vs. State of MP and Others P. Soupramaniane (supra), this Court is of the considered opinion that the authorities failed to consider that the allegation levelled against the petitioner does not involve moral turpitude and merely because the petitioner has been convicted for offence under Sections 323, 341/34 of IPC, it is not sufficient to dismiss him from service. Accordingly, the order dated 04/05/2020 passed by the Director, Public Education, MP, Bhopal and the order 23/01/2020 passed by the Joint Director, Public Education, Division Gwalior are hereby set aside. Accordingly, the respondents are directed to reinstate the petitioner in service forthwith. However, the petitioner shall not be entitled for back-wages from the date of his dismissal till today. With aforesaid observations, this petition succeeds and is hereby allowed. (G.S. Ahluwalia) Judge MKB MAHENDRA KUMAR BARIK VALSALA 2021.01.25 15:04:14 +05'30' VASUDEVAN 2018.10.26 15:14:29 -07'00'",
        "373587": "IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. OF 2008 (Arising out of SLP (Crl.) No.3814 of 2006) Inspector of Police, Tamil Nadu .. Appellant Versus Balaprasanna ..Respondent JUDGMENT Dr. ARIJIT PASAYAT, J. 1. Leave granted. 2. Challenge in this appeal is to the order of a Division Bench of Madras High Court allowing the appeal filed by the respondent (hereinafter referred to as the `accused'). The accused was convicted for offence punishable under Section 302 of the Indian Penal Code, 1860 (in short the `IPC') and sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/- with default stipulation by Principal District Judge, Madurai. He was also convicted for offences punishable under Section 392 read with Section 397 IPC and sentence to undergo rigorous imprisonment for 10 years and to pay a fine. 3. Background facts in a nutshell are as follows: The deceased is one Mayurani, a Sri Lankan student, who was residing in the first floor of the house belonging to one Solsimalai (P.W.1). The Accused is also a Sri Lankan student studying in a different college, but staying in the second floor of the same premises. The occurrence allegedly took place in the afternoon of 22.4.2003. The First Information Report was lodged by P.W.1 on 24-4-2003 at about 9.30 A.M. It was indicated in the First Information Report that on 24.4.2003 at 9.00 A.M., while the informant had gone to perform pooja in the first floor of the house, he got foul smell in the last room of the first floor and found blood seeping through the front door. On opening the window he noticed that Mayurani was lying in a pool of blood with her face covered with a bag. On the basis of the aforesaid F.I.R., investigation was taken up initially by P.W.40. Subsequently on the basis of the order of the High Court, such investigation was completed by P.W.42. The accused is stated to have been arrested on suspicion on 26.4.2003. On the basis of the statement of the accused, prosecution discovered many materials including a knife and a log allegedly used for killing. Initially, P.W.40 suspected the role of P.W.1, his wife P.W.2, P.W.3, from whose house certain incriminating material were recovered allegedly on the basis of statement of the accused as well as P.W.4, who was working as a cleaner in the vehicle of P.W.1. Subsequently, however, P.W.42, who took over investigation from P.W.40 filed charge-sheet only against the present appellant on the footing that P.Ws. 1 to 4 had no role to play in the crime. 4. The prosecution relied upon only circumstantial evidence, namely, confessional statements of the accused leading to recovery of various incriminating materials. Ex.P-6 is the statement leading to recovery of Travel bags (M.Os. 2 & 3), knife (.M.0.5), wooden log (M.0.28), rubber gloves (M.0.29 series) cotton rope with human hair (MN.O.30 series), two sponges soaked with blood (M.0.31 series), bloodstained blue clolour jean pant (M.0.32), bloodstained white banian (M.0.33), colour banian (M.0.34), bloodstained grey colour pant (M.0.35), bloodstained pillow (M.0.36), plastic bucket (M.0.37) from the house of P.W.3. Ex-P-8 is the statement leading to recovery of computer and its accessories (M.Os. 6 to 17) from the house of P.W.15, a classmate of the accused. Ex.P-10 is the statement relating to jewelleries, ultimately leading to recovery of gold ingots (M.O.18 series) from the house of P.W.19 on the basis of other connecting statements of P.W.17 and P.W.18. These three statements, Exs. P-6, P-8 and P-10 dated 26-4-2003, were made before P.W.40 in the presence of P.W.22 and C.W.1. The other confessional statement Ex.P-12 dated 22-9-2003 made before P.W.42 and Subbiah and P.W.24, led to recovery of \"M\" dollar (M.0.38) and key chain with key chain in (M.0.39) from the toilet in the room of the accused. The prosecution has also relied upon the alleged motive to the effect that the accused urgently wanted money with a view to increase his marks in Mathematics and, therefore, the accused had stolen articles belonging to the deceased. 5. The trial court found the respondent guilty and recorded conviction and imposed sentence as aforestated. The trial court found that the prosecution version rested on circumstantial evidence. The following circumstances were highlighted to find the accused guilty. (a) The death is homicidal; (b) The accused was in need of money to chase mathematics paper and for the aforesaid purpose he has killed the deceased to take away the valuable articles like computer and gold ornaments to sell such articles in the market. (c) At the time of occurrence, only the accused, deceased and PW 9 were available in the premises and there was no other person. (d) Statement of the accused leading to recovery of incriminating materials such as knife, rope, clothes, wooden log and other valuable articles such as computer, gold ornaments, \"M\" Dollar and the key chain with key belonging to the deceased. 6. The High Court found that the circumstances highlighted were not sufficient to fasten the guilt on the accused, and directed acquittal. Learned counsel for the appellant submitted that the High Court failed to notice that the circumstances highlighted clearly establish the chain of circumstances which established the prosecution version and the High Court was not justified in directing acquittal. 7. Learned counsel for the respondent on the other hand supported the judgment of the High Court. 8. The conviction based on circumstantial evidence has been highlighted by this Court in various orders of this Court. 9. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan AIR (1977 SC 1063); Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa v. State of Karnataka (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt. 10. We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. v. State of A.P. (1996) 10 SCC 193, wherein it has been observed thus: \"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....\". 11. In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: \"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.\" 12. In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. 13. Sir Alfred Wills in his admirable book \"Wills' Circumstantial Evidence\" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted\". 14. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch- stone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952. 15. In Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh, (AIR 1952 SC 343), wherein it was observed thus: \"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.\" 16. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so compete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 17. These aspects were highlighted in State of Rajasthan v. Rajaram (2003(8) SCC 180), State of Haryana v. Jagbir Singh & Anr. (2003(11) SCC 261). 18. The main circumstances relied upon by the prosecution relates to the statements of the accused leading to discovery of materials facts, admissible under Section 27 of the Indian Evidence Act, 1872 (in short the 'Evidence Act'). 19. Law is well settled that the prosecution while relying upon the confessional statement leading to discovery of articles under Section 27 of the Evidence Act, has to prove through cogent evidence that the statement has been made voluntarily and leads to discovery of the relevant facts. The scope and ambit of Section 27 of the Evidence Act had been stated and restated in several decisions of this Court. However, in almost all such decisions reference is made to the observation of the Privy Council in Pulukuri Kotayya v. Emperor (AIR 1947 PC 67). It is worthwhile to extract such quoted observation: \"It is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this and the information given must relate distinctly to this fact. Information as to past user or the past history, of the object produced is not related to his discovery in the setting in which it is discovered. Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' does not lead to the discovery of the knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which stabbed A', these words are inadmissible since they do not related to the discovery of the knife in the house of the informant (p.77)\". 20. At one time it was held that the expression \"fact discovered\" in the section is restricted to a physical or material fact which can be perceived by the senses, and that it does not include a mental fact, now it is fairly settled that the expression \"fact discovered\" includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this, as noted in Pulukuri Kottaya's case (supra). 21. The various requirements of the section can be summed up as follows: (1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with the question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible. (2) The fact must have been discovered. (3) The discovery must have been in consequence of some information received from the accused and not by the accused's own act. (4) The person giving the information must be accused of any offence. (5) He must be in the custody of a police officer. (6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to. (7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible. 22. As observed in Pulukuri Kottaya's case (supra) it can seldom happen that information leading to the discovery of a fact forms the foundation of the prosecution case. It is one link in the chain of proof and the other links must be forged in a manner allowed by law. To similar effect was the view expressed in K. Chinnaswamy Reddy v. State of A.P. (AIR 1962 SC 1788). 23. The above position was highlighted in Anter Singh v. State of Rajasthan (AIR 2004 SC 2665). 24. In Rammi alias Rameshwar v. State of Madhya Pradesh (AIR 1999 SC 3544) the scope and ambit of Section 27 of the Evidence Act was analysed in great detail and it was concluded in para 12 as follows: \"12. True, such information is admissible in evidence under Section 27 of the Evidence Act, but admissibility alone would not render the evidence, pertaining to the above information, reliable. While testing the reliability of such evidence the court has to see whether it was voluntarily stated by the accused.\" 25. Significantly, the prosecution has relied upon the evidence of PW 40 who was investigating initially. His evidence has to be considered in the background of what has been stated by PW 22 and CW 1. It has been accepted by the prosecution that great efforts were made by PW 40 to falsely implicate to PWs 1 to 4 and for that purpose a departmental proceeding was initiated. Even according to the statement of the subsequent investigating officer (PW 42), several blank papers with the signature of PW 22 and CW 1 had been by PW 40 and such documents had been used to create false records to implicate PWs 1 to 4. It is to be noted that PW 2 himself was one of the suspected person at the initial stage of investigation. 26. That apart, materials on record such as the statement of P.W.22 recorded under Section 164 of the Code of Criminal Procedure, 1973 (in short `Code') and the statement of C.W.1, raise a reasonable doubt relating to voluntariness of the alleged confession. P.W.22, who is a close relation of the deceased (cousin) has stated that two days after the occurrence after the information that Bala Prasanna was roaming near LIC Colony, Anna Nagar Police brought him to the Police Station and Bala Prasanna was arrested at 5.00 P.M. and was taken to the police station and a witness was present there. It is further stated that at the time of enquiry, the accused was beaten up by the police and they have seized a gold ring and Rs.5000/- cash from him. If this is the statement of P.W.22 recorded under Section 164 of the Code a witness in whose presence the confessional statement leading to discovery of articles from the house of Hajeeali, P.W.3 had been made, it raises serious doubt regarding the voluntariness of the statement. In this context, it is also note worthy to indicate that C.W.1 in his evidence has stated that the accused was in police station on 24-4-2003 itself. Similar statement is made by P.W.4. That apart, C.W.1 has stated that no statement has been made in his presence. The prosecution version to the effect that even some signatures on blank papers had been taken from P.W.22 and C.W.1 thus assumes great importance. 27. The alleged statement made by the accused led to discovery of knife, bloodstained clothes, rope, etc. Unfortunately, for the prosecution there is no evidence to show that in fact the wearing apparels containing bloodstains belonged to the accused, save and except the alleged confessional statement. No witness has spoken that those clothes were worn by the accused at any time far less at or about the time of occurrence. It is also to be kept in view that those articles were recovered from the house of P.W.3 and at the initial stage of investigation, P.W.3 himself was one of the suspected person and he was arrested. Therefore, the statement of P.W.3 and his mother that those articles were brought by the accused and left in the upstairs room is to be considered with a pinch of salt. Moreover, there is nothing to indicate that in fact the bloodstained clothes and rope had tallied with the blood grouping of the deceased. The knife did not contain any bloodstain. Therefore, the aspect relating to recovery of articles from the house of P.W.3 and his mother cannot be considered as a link to complete the chain of circumstantial evidence. 28. The next recovery relates to recovery of computer and accessories. Apart from the fact that there is niggling doubt about the so called confession, in view of statement under Section 164 of the Code of P.W.22 and the statement of C.W.1, a further doubt is raised regarding such aspect in view of evidence of C.W.1 to the effect that he had seen such computer in the room of the deceased when they had gone to the room after the offence was reported. The fact that C.W.1 is a close relation of the deceased adds weight to his evidence rather than taking it away. Even accepting that the computer had been given to P.W.15 by the accused, such circumstance by itself does not unerringly points towards the guilt of the accused either in respect of offence of murder or even robbery. It is quite possible that such articles might have been borrowed by the accused from the deceased and not necessarily stolen by the accused from the deceased after killing her. The fact that P.W.9 had not initially stated anything before P.W.40 about the accused coming down with computer at 3.30 P.M. and stated so for the first time when she was re-examined after 5 months cannot be lost sight of. As a matter of fact, P.W.9 who was examined on the very date when police started investigation did not inform the police that she had seen the accused coming down from upstairs or that the accused had threatened her. Her statement to the following: \"I did not tell anyone that Balaprasanna took away the computer and threatened me. I did not tell this even to the Inspector of Police after going to the police station. I do not tell this even to P.W.1...\". 29. The next recovery relates to the ingots. For the aforesaid aspect, the evidence of P.Ws. 17, 18 and 19 is relevant. Since the golden jewellery had been molten and were recovered in the shape of ingots, it would be very hazardous to come to the conclusion that in fact the golden jewellery belonged to the deceased. If the accused had killed the deceased and stolen those golden jewellery, there is no reason as to why he had also not taken ear rings from the deceased. The fact that ear rings were on the dead body is admitted by the prosecution. 30. The prosecution has strongly relied upon the fact that \"M\" Dollar belonging to the deceased and a chain with key of the room of the deceased were discovered from inside the toilet in the room which was previously occupied by the accused. For the aforesaid purpose, they have relied upon the evidence of P.W.42 and the seizure witness P.W.24. The accused had allegedly made earlier confessional statement before P.W.40 on 26-4-2003 leading to discovery of several articles. The subsequent statement spoken to by P.W.42, the subsequent Investigating Officer, is alleged to have been made only in September, 2003, after about five months. So far as the first confession statement made before P.W.40 is concerned, admittedly the accused was under physical custody, at that time, whereas at the time of last confession stated to have been made before P.W.42, the accused was on bail and he had been summoned by P.W.42 for further examination and, therefore, technically in custody. If the accused had not made such a statement at such first instance, when he had confessed about other articles, it is not understood as to how after 5 months when he was on bail he would make such a statement. Such alleged confession made belatedly thus creates doubt regarding its authenticity or voluntariness. In this context, it is to be noted that C.W. 1 states that \"M\" Dollar was taken from him by P.W.42 for the purpose of facilitating investigation. Keeping in view the fact that C.W.1 is a close relation of the deceased and obviously interested in punishing the real culprit, such a statement coming from C.W.1 cannot be slightly brushed aside. 31. The fact that there had been a statement allegedly made by P.W.1 leading to recovery of a parallel key from the dash board of the car of P.W.1, cannot be lost sight of. It is of course true that the prosecution has tried to exonerate P.W.1 by adducing evidence through P.Ws. 36 and 39 to the effect that immediately after recovery of the dead body, P.W.40 had taken two such keys, thus contradicting the alleged confession of P.W.1. However, the very suspicious role of P.W.40, who apparently was in possession of at least two keys of the same lock creates suspicion regarding recovery of another key after 5 months. 32. Law is well settled that when the prosecution relies upon circumstantial evidence, all the links in the chain of circumstances must be complete and should be proved through cogent evidence. 33. When the judgment of the High Court is analysed in the background of what has been stated by this Court as regards circumstantial evidence, the inevitable conclusion is that the impugned judgment of the High Court does not suffer from any infirmity to warrant interference. The appeal is dismissed. ................................J. (Dr. ARIJIT PASAYAT) ................................J. (P. SATHASIVAM) New Delhi, July 21, 2008",
        "171479667": "1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO(S). 251-252 of 2021 (Arising out of S.L.P.(C) No.14266-14267 of 2019) ASSAM INDUSTRIAL DEVELOPMENT CORPORATION LTD. \u2026APPELLANT(S) VERSUS GILLAPUKRI TEA COMPANY LIMITED & ORS. ETC. \u2026RESPONDENT(S) JUDGMENT S. ABDUL NAZEER, J. 1. Leave granted. 2. Assam Industrial Development Corporation Limited has filed these appeals challenging the judgment and order in Writ Appeal Nos. 219 & 220 of 2017 dated 14.03.2019 whereby the Division Bench of the High Court of Guwahati has dismissed the said appeals confirming the order of the Learned Single Judge in Review Petition Nos. 79 & 80 of 2016. 3. Brief facts necessary for disposal of these appeals are as under. 4. In order to set up a plastic park, the Government of Assam decided to acquire a portion of the land belonging to the first respondent situated at Gillapukri Tea Estate, Village Gillapukri, Tinsukia, Assam. The Government of Assam, in exercise of the power vested in it under Section 4 of the Land Acquisition Act, 1894 (for short \u2018L.A. Act\u2019) issued a notification dated 04.08.2008, which was published in the Assam Gazette on 08.08.2008, expressing its intention to acquire 1,166 biggas, 1 katha, 14 lessas of land of the aforesaid Gillapukri Tea Estate. The proceedings being L.A Case No. 1 of 2008 were also initiated for the purpose of acquisition before the District Collector, Tinsukia and, for that purpose, declaration dated 17.06.2009 in terms of Section 6(1) of the L.A. Act was published in the Assam Gazette. The appellant was appointed as the nodal agency to deal with the acquisition proceedings vide appointment letter dated 24.06.2009. 5. The Deputy Commissioner and Collector, District Tinsukia, addressed a letter dated 30.01.2010 to the Principal Secretary to the Government of Assam, Revenue Department to seek approval of the award and the land acquisition estimate which were enclosed therewith in the prescribed Form No. 15 and Form No. 5 respectively. In response, the Commissioner and Secretary to the Government of Assam, Revenue Department, addressed a letter dated 05.03.2010 to the Deputy Commissioner whereby approval, as sought vide the aforesaid letter dated 30.01.2010, was granted. As will be seen in the following paragraphs, the controversy between the parties before us is whether this letter was approval of both the award and the estimate or only the estimate. Thereafter, the owner of the land, i.e. the first respondent herein, addressed a letter dated 05.05.2010 to the Commissioner seeking reference of the matter to the District Judge, Tinsukia, under Section 18 of the L.A. Act for reassessment of the compensation awarded to it. It is contended that other similar applications were also received from different families at different levels. It is further contended that in the letter dated 05.05.2010, the first respondent admitted that it had received a sum of Rs. 4.95 crores on 08.04.2010 by a crossed cheque immediately after the letter for approval dated 05.03.2010 was passed by the Commissioner. It is also contended that vide possession certificate dated 21.05.2010, possession was delivered to the Deputy Commissioner, and thereafter on 11.06.2010, possession of the land was handed over to the appellant by the Deputy Commissioner. 6. The first respondent has not disputed the issuance of the preliminary and final notification. However, it is contended that no award was approved pursuant to the letter dated 05.03.2010. It is the first respondent\u2019s case that vide this letter, only the land acquisition estimate was approved and not the award. This, in the first respondent\u2019s view, led to lapsing of the proceedings and initiation of fresh acquisition proceedings in 2012 which culminated in approval of the award for the first time on 04.01.2014. For this purpose, a fresh notification under Section 4 of the L.A. Act was published on 07.08.2012 and a declaration was also issued on 20.11.2012. Thereafter, the Commissioner issued a notice purportedly under Section 9 of the L.A. Act to the persons interested in the land to submit their objections and claims. On 04.01.2014, a fresh award was passed and the Deputy Secretary, Government of Assam, Revenue Department addressed a letter dated 06.01.2014 to the Deputy Commissioner conveying approval of the said fresh award. The first respondent contends that a comparison of this approval letter dated 06.01.2014 with the approval letter dated 05.03.2010 under the original acquisition proceedings would clearly indicate that under the letter dated 05.03.2010, only the estimate was approved and not the award. Since the award under the fresh proceedings was approved and made after coming into force of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short \u20182013 Act\u2019), the first respondent approached the Deputy Commissioner to seek a fresh award by determining the compensation payable in terms of Section 24(1)(a) of the 2013 Act. 7. The first respondent has denied the claim of the appellant that an award had been approved on 05.03.2010 and has mainly rested its case on the letter dated 21.07.2012 addressed by the Deputy Secretary, Government of Assam, Revenue Department to the Deputy Commissioner wherein the Deputy Secretary admitted to not having drawn the award within two years from the date of publication of the declaration under the original acquisition proceedings. The first respondent has also relied upon the letter dated 06.01.2014 sent by the Deputy Secretary to the Government of Assam which, as per the first respondent, suggests that no award had been approved under the original acquisition proceedings. 8. On the contrary, the State Government has taken a stand that an award was approved by the State Government on 05.03.2010 and that the same had been made within two years of the declaration. It is also contended that pursuant to the award, possession of the land was taken from the first respondent by the acquiring authority and the land was then handed over to the appellant. It was also submitted that the entire compensation had been paid to the first respondent. The State Government contends that the need for an additional award arose only because some of the land owners of the land initially proposed to be acquired were left out in the original award that was approved on 05.03.2010. 9. Appearing for the appellant Shri Jayant Bhushan, learned senior counsel has submitted that the award had been passed in Form No. 15 of the Assam Land Acquisition Manual and was approved by the State on 05.03.2010. Possession of the land was also handed over by the first respondent to the acquiring authority on 21.05.2010 and was thereafter handed over to the appellant on 11.06.2010. Shri Bhushan submitted that the compensation was also received by the first respondent and, in fact, the first respondent had also sought enhancement of the compensation allowed under the said award. It is Shri Bhushan\u2019s submission that once the land stood vested in the State, it could not have been acquired again. Therefore, any issuance of fresh notification under Section 4 and 6 or even preparing of a fresh award by the State Government in respect of the first respondent\u2019s land will be non est or infructuous. He further submits that the letters dated 21.07.2012 and 06.01.2014 relied upon by the High Court could not have had the effect of re-acquiring the land in question since it already stood vested in the State Government. 10. Learned counsel appearing for the State of Assam has supported the stand of the appellant. 11. However, Shri Senthil Jagadeesan, learned counsel for the first respondent submits that the aforesaid two letters would conclusively establish that no approval to an award was granted by the State Government under the original acquisition proceedings. It is his submission that the two aforesaid letters dated 21.07.2012 and 06.01.2014 which were relied upon by the Division Bench of the High Court would clearly establish the same. Therefore, he prays for dismissal of these appeals. 12. We have carefully considered the submissions of the learned counsel made at the Bar and perused the materials placed on record. Having regard to the contentions urged, the crucial question for consideration is whether an award in respect of the first respondent\u2019s land was approved by the State Government on 05.03.2010. Needless to say, if the award was not approved on 05.03.2010, but rather on 06.01.2014 as contended by the first respondent, then the 2013 Act will be applicable and the first respondent will be eligible to receive compensation in accordance therewith. 13. To determine whether the award had indeed been approved on 05.03.2010, we first have to examine the letter dated 30.01.2010 through which the State Government\u2019s approval of the award was sought by the Deputy Commissioner. It is uncontested that vide this letter both the award and the land acquisition estimate were sent to the State Government for its approval. It is pertinent to note that the award was in the format of Form No. 15 which is the statutorily prescribed form for a land acquisition award under the Assam Land Acquisition Manual. This is also true of the land acquisition estimate which was as per the prescribed format of Form No. 5. As such, the only further action required of the State Government was to approve the award which was already in the statutorily prescribed form. This is precisely what was done vide the letter dated 05.03.2010 issued by the Deputy Secretary to the Government of Assam, Revenue Department. 14. This letter dated 05.03.2010 was issued in response to the letter dated 30.01.2010, whereunder approval of the award and the land acquisition estimate was sought. While this letter only expressly mentions the land acquisition estimate and not the award, a combined reading of this letter with the preceding letter dated 30.01.2010 and the subsequent conduct of the parties, including the first respondent, make it evident that the award stood approved by this letter of 05.03.2010. It is noteworthy that copies of both the letters of 30.01.2010 and 05.03.2010 were also addressed to the Industries & Commerce Department of the Government of Assam. Vide the initial letter of 30.01.2010, the said Department was requested to arrange balance funds for making payment to the land owners as per the award. In furtherance of this, vide the letter of 05.03.2010, the said Department was directed to place the balance estimated fund at the disposal of the Deputy Commissioner. We find strength in the appellant\u2019s submission that if the award which had been sent for approval alongwith the estimate had not been approved by the said letter dated 05.03.2010, this direction for making funds for payment to landowners available to the Deputy Commissioner would not have been called for. This view is fortified by the subsequent conduct of the parties, as particularly evinced by the below mentioned actions. 15. It is undisputed that the award amount was indeed made available to the Deputy Commissioner and the awarded sum was duly paid to and received by the first respondent. Not only did the first respondent receive compensation pursuant to the award, it in fact sought enhancement of the same vide its reassessment petition dated 05.05.2010 u/s 18 of the L.A. Act addressed to the Deputy Commissioner. It is also not contested that vide possession certificate dated 21.05.2010, the first respondent handed over possession to the Deputy Commissioner and that on 11.06.2010 possession of the land was ultimately handed over to the appellant by the Deputy Commissioner. What clearly emerges from the above is that after the letter dated 05.03.2010, it was the common belief of the State Government, the appellant as well as the first respondent that the award had been approved and that now actions subsequent thereto viz. payment and receipt of compensation, handover of possession, seeking reassessment of the compensation were needed to be undertaken. 16. It is clear from the materials on record that the plastic project for which the subject Land Acquisition was initiated has already been developed on the acquired land including boundary wall, entrance gate, laying of roads, drains and electrical distribution networks, electrical substation, industrial sheds and warehouses. 17. In the above scenario, the arguments of the first respondent are untenable. Once the award has been approved, compensation has been paid thereunder and possession of the land has been handed over to the Government, acquisition proceedings could not have been reopened, including by way of re-notification of the already acquired land under Section 4 of the L.A. Act by the Government. Contrary to the first respondent\u2019s contention, the question of lapsing under Section 24 of the L.A. Act could not have arisen in this case once the award was approved on 05.03.2010. 18. So far as the second set of acquisition proceedings are concerned, without addressing the factual veracity of the State Government\u2019s contention that the second award was meant to be only in respect of landowners not covered by the original award, we are of the opinion that it would not have been possible for the State Government to initiate acquisition proceedings in respect of already acquired land such as that of the first respondent herein. This position has been affirmed by this Court in D. Hanumanth SA & Ors. v. State of Karnataka and Ors.1 in the following terms: \u201c17. Even otherwise, if land already stands acquired by the Government and if the same stands vested in the Government there is no question of acquisition of such a land by issuing a second notification for the Government cannot acquire its own land. The same is by now settled by various decision of this Court in a catena of cases. 18. In State of Orissa v. Brundaban Sharma,2 this Court has held that the Land Acquisition Act does not contemplate or provide for the acquisition of any interest belonging to the Government in the land on acquisition This position was reiterated in 1 (2010) 10 SCC 656. 2 1995 Supp (3) SCC 249. a subsequent decision of this Court in Meher Rusi Dalal v. Union of India3 in paras 15 and 16 of the said judgment, this Court has held that the High Court clearly erred in setting aside the order of the Special Land Acquisition Officer declining a reference since it is settled law that in land acquisition proceedings the Government cannot and does not acquire its own interest. While laying down the aforesaid law, this Court has referred to its earlier decision in Collector of Bombay v. Nusserwanji Rattanji Mistri4\u201d The recent decision of the Constitution Bench of this Court in Indore Development Authority v. Manoharlal and Ors.5 has also affirmed that once possession is taken by the State, the land vests absolutely with the State and the title of the landowner ceases. We find no reason to deviate from this settled position of law and thus are unable to agree with the High Court\u2019s reliance on the letters dated 21.07.2012 and 06.01.2014 to nullify the original award and allow fresh acquisition proceedings in respect of the first respondent\u2019s land which had already been acquired and has been under the possession of the appellant since 11.06.2010. 19. Therefore, for the foregoing reasons, the appeals succeed and are accordingly allowed. The orders impugned herein are 3 (2004) 7 SCC 362. 4 AIR 1955 SC 298 : (1955) 1 SCR 1311. 5 (2020) 8 SCC 129. set aside. Pending applications, if any, shall stand disposed of. The parties shall bear their own costs. \u2026\u2026.\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026J. (S. ABDUL NAZEER) \u2026\u2026.\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026J. (SANJIV KHANNA) New Delhi; January 28, 2021.",
        "1681654": "PETITIONER: MUIR MILLS CO., LTD. Vs. RESPONDENT: SUTI MILLS MAZDOOR UNION, KANPUR. DATE OF JUDGMENT: 19/11/1954 BENCH: BHAGWATI, NATWARLAL H. BENCH: BHAGWATI, NATWARLAL H. MAHAJAN, MEHAR CHAND (CJ) DAS, SUDHI RANJAN AIYYAR, T.L. VENKATARAMA CITATION: 1955 AIR 170 1955 SCR (1) 991 ACT: Bonus -Meaning of - Necessary conditions for the demand thereof-Industrial claim-Principles for the grant of it- Social Justice-Meaning of--Industrial Tribunals--Whether Tribunals within the meaning of Art. 136 of the Constitution. HEADNOTE: The term bonus is applied to a cash payment made in addition to wages. it generally represents the cash incentive given conditionally on certain standards of attendance and efficiency being attained. 992 There are two conditions, which have to be satisfied before a demand for bonus can be justified and they are, (1) when wages fall short of the living standard and (2) the industry makes huge profits part of which are due to the contribution which the workmen make in increasing production. The demand for bonus becomes an industrial claim when either or both these conditions are satisfied. The formula for the grant of bonus is as follows:- As both labour and capital contribute to the earnings of the industrial concern, it is fair that labour should derive some benefit, if there is a surplus after meeting prior or necessary charges, The first charges on gross profits are (1) provision for depreciation. (2) reserves for rehabilitation, (3) a return at 6 per cent. on the paid up capital and (4) a return on the working capital at a lesser rate than the return on paid up capital. The surplus that remained after meeting the aforesaid deductions would be available for distribution as bonus. The claim for bonus can be made by the employees only if as a result of the joint contribution of capital and labour the industrial concern has earned profits. If in any particular year the working of the industrial concern has resulted in loss there is no basis nor justification for a demand for bonus. Bonus is not a deferred wage. If it were so, it would necessarily rank for precedence before dividends. The dividends can only be paid out of profits and unless and until profits are made no occasion or question can arise for distribution of any sum as bonus amongst the employees. Social justice is a very vague and indeterminate expression and no clear-cut definition can be laid down which will cover all the situations. The concept of social justice does not emanate from the fanciful notions of any particular adjudicator but must be founded on a more solid foundation. Industrial Tribunals are Tribunals within the meaning of Art. 136 and Art. 136 has vested in the Supreme Court exceptional and overriding power to interfere where it reaches the conclusion that a person has been dealt with arbitrarily or that a Court or Tribunal within the territory of India has not given a fair deal to a litigant. In re Eddystone Marine Insurance Co. (L.R. [1894] W.N. 30), Sutton v. Attorney-General ([19231 39 T.L.R. 294), National Association of Local Government Officers v. Bolton Corporation (L.R. 1943 A.C. 166), Kenicott v. Supervisor of Wayne County ([1873] 83 U.S. 452: 21 L. Ed. 319), Great 'Western Garment Co. Ltd. v. Minister of National Revenue ([1948] 1 D.L.R. 225), Millowners' Association, Bombay v. Bashtreya Mills Mazdoor Sangh, Bombay '[1950] 2 L.L.J. 1247), Nizam Sugar Factory Ltd., Hyderabad v. Their Workmen ([1952], 1 L.L.J. 386), Textile Mills, Madhya Pradesh v. Their Workmen ([1952] 2 L.L.J. 62`), Famous Cine Laboratory v. Their Workmen ([1953] 1 L.L.J 466) and Bharat Bank Ltd., Delhi 993 v. Employees of the Bharat Bank Ltd., Delhi, ([1960] S.C.R. 469), referred to. JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 135 of 1951. Appeal by Special Leave granted by the Supreme Court of India by its Order dated the 21st of May, 1951, from the Judgment and Order dated the 19th February, 1951, of the Labour Appellate Tribunal of India, Allahabad in Appeal No. 136 of 1950. C.K. Daphtary, Solicitor-General of India (J. B. Dadachanji, Rajinder Narain and Devinder Swarup, with him) for the appellant. S.C. Isaacs (0. P. Lal, with him) for the res. pondent. M.C. Setalvad, Attorney-General for India, (Rajin der Narain and Devinder Swarup, with him) for the Intervener (All India Organisation of Industrial Employers). S.C. Isaacs (Mohan Lal Saxena and C. P. Lal, with him) for the Intervener (State of U.P.). 1954. November 19. The Judgment of the Court as delivered by BHAGWATI J.-This appeal with special leave is directed against the judgment and order of the Labour Appellate Tribunal of India in a dispute regarding the workers' claim for bonus. During the year 1948 the appellant made a profit of Rs. 11,97,648-11-9. It paid 24 3 per cent. dividend on ordinary shares, being the maximum that could be paid under the Public Companies (Limitation of Dividend) Ordinance of 1948 and also paid to the workers their full share of bonus at annas 4 in a rupee of their basic earnings. During the year 1949 the selling rates for cloth and yarn were controlled by the Government and were approximately 4 per cent. below those obtained in 1948. The basic wages were increased from the 1st December, 1948, by order of the Government of Uttar Pradesh and the total wages paid were therefore higher than those in the previous year. There was moreover indiscipline amongst the workers and production suffered. There was a strike in the month of October and the mills were closed for nearly a month. Further the management were unable to secure cotton which resulted in the curtailment of the working hours. As a result of all these circumstances the appellant suffered a trading loss of Rs. 5,02,563-1-10. A sum of Rs. 2,50,000 being the excess reserve for taxation was written back and a sum of Rs. 10,01,871-13-5 being the amount of reserve transferred from the investment account was also brought in. An aggregate sum of Rs. 12,51,871-13-5 was thus brought into the balance- sheet by these two transfers. The trading loss was deducted from this amount leaving a credit balance of Rs. 7,49,308-11-7 and that amount was shown as the profit for the year 1949 in the balance-sheet for that year. The balance which had been brought forward from the previous year was added thereto and a dividend of 243/4 per cent. was paid to the ordinary shareholders. The appellant also paid ex gratia to the workmen bonus at the rate of annas 2 per rupee of their basic earnings making it clear by their notification dated the 7th April, 1950, that the directors had sanctioned the payment at that rate in spite of the appellant having suffered a trading loss for the year, that it was being paid entirely at the discretion of the appellant and was not related to or connected with any contract of employment of any worker. On the 4th May, 1950, the Secretary of the respondent Union petitioned to the Provincial Conciliation Officer (Textile) that there was more production in 1949 than in 1948, that there was no reason to hold that the profit in 1949 was less than in the previous year and that the rate of bonus was wrongly reduced and asked that bonus for 1949 should also be paid at the rate of annas 4 per rupee. The industrial dispute which thus arose was referred for enquiry and recording of an award to the Regional Conciliation Board (Textile), Kanpur. The Conciliation Board by a majority decision repelled the contention of the appellant and awarded the payment of bonus at annas 4 per rupee. On an appeal taken by the appellant to the Industrial Court (Textiles and Hosiery), Kanpur, the Industrial Court accepted the contention of the appellant, allowed the appeal and set aside the award. The respondent thereupon appealed to the Labour Appellate Tribunal which substantially agreed with the Industrial Court on questions of fact as well as the general position in law but imported considerations of social justice and treating this as a special case \" where social justice would demand that labour should have bonus for the year where for that very year capital had not only a reasonable return but much in excess of that \", allowed the appeal and directed the appellant to pay to the workmen bonus at the rate of annas 4 per rupee within six weeks of their decision. The appellant filed this appeal against that decision after obtaining special leave from this Court. Both the Industrial Court as well as the Labour Appellate Tribunal found as a fact that there was a trading loss of Rs. 5,02,563-1-10 during the year 1949 and also that the dividend of 243/4 per cent. to the ordinary shareholders was distributed after transferring the aggregate sum of Rs. 12,51,871-13-5 from the reserves. The question which therefore arises for our consideration is mainly whether the workers are entitled to the payment of a bonus in spite of the employer having worked at a loss during the year and incidentally whether the workers have any right, title or interest in the reserves and the undistributed profits of the previous years. The primary meaning of the word \" bonus \" according to the definition given in the New English Dictionary is:-\" A boon or gift over and above what is nominally due as remuneration to the receiver and which is therefore something wholly to the good \". This definition was adopted by Stirling J. in In re Eddystone Marine Insurance Co. (1). Webster's International Dictionary defines bonus as \"something given in addition to what is ordinarily received by or strictly due to the recipient \". The Oxford Concise Dictionary defines it as \" something to the good, into the bargain (and as an example) gratuity to workmen beyond their wages\". (1) L. R. (I894) W. N. 30. Corpus Juris Secundum, Volume XI, at page 515 ascribes the following meanings to the word bonus: \" An allowance in addition to what is usual current or stipulated ; a sum given or paid beyond what is legally required to be paid to the recipient; something given in addition to what is ordinarily received by or strictly due to the recipient\" and adds: It has been said to carry the idea of something uncertain and indefinite, something which may or may not be paid depending on varying circumstances and under particular conditions has been said to imply a benefit accruing to him who offers it and an inducement to the offeree.\" This imports the conception of a boon, a gift or a gratuity otherwise described as an ex gratia payment. The word 'bonus' has however acquired a secondary meaning in the sphere of industrial relations. It is classified amongst the methods of wage payment. It has been used especially in the United States of America to designate an award in addition to the contractual wage. It is usually intended as a stimulus to extra effort but sometimes represents the desire of the employer to share with his workers the fruits of their common enterprise. (Vide Encyclopaedia Britannica, Volume III, page 856). The Pocket Part of the Corpus Juris Secundum, Volume XI, under the heading \"As Compensation for Services\" quotes the following passage from Attorney-General v. City of Woburn(1) :- \"The word 'bonus' is commonly used to denote an increase in salary or wages in contracts of employment. The offer of a bonus is the means frequently adopted to secure continuous service from an employee to enhance his efficiency and to augment his loyalty to his employer and the employee's acceptance of the offer by performing the things called for by the offer binds employer to pay the bonus so called.\" It also gives another meaning of the word bonus', viz., \"increased compensation for services already (1) 317 Mass. 465. rendered gratuitously or for a prescribed compensation where there is neither express or implied understanding that additional compensation may be granted.\" This imports the conception that even though the payment be not strictly due to the recipient nor legally enforceable by him, a claim to the same may be laid by the employee under certain conditions and if such claim is entertained either by an agreement with the employer or by adjudication before a properly constituted Tribunal -as on an industrial dispute arising, the same would ripen into a legally enforceable claim. This position was recognised in Sutton v. Attorney-General (1), where the Earl of Birkenhead observed \"The term 'bonus' may of course be properly used to describe payments made of grace and not as of right. But it nevertheless may also include, as here, payments made because legally due but which the parties contemplate will not continue indefinitely\", and in National Association of Local Government Officers v. Bolton Corporation(2) \"This payment, if made, cannot properly in my opinion be regarded as a mere gratuity. Though there is an element of bounty in it the bounty, if granted, is given for good reasons of national policy............ I do not see why this does not fall within the definition of trade dispute just as much as a dispute as to the rate of wages or salary.\" To a similar effect are the observations in Kenicott v. Supervisors of Wayne County (1):- \"But second, the meaning of the word 'bonus' is not given to it by the objection. It is thus defined by Webster. 'A premium given for a loan or a charter or other privilege granted to a company; as, the bank paid a bonus for its charter; a sum paid in addition to a stated compensation'. It is not a gift or gratuity, but a sum paid for services, or upon a consideration in addition to or in excess of that which would ordinarily be given\", (1) (1923) 39 T.L.R. 294, 297, (3) (1873) 83 U.S. 452 21 L., Ed. 319. (2) [1943] A.C. 166, I87. and also in Great Western Garment Co. Ltd. v. Minister of National Revenue (1):- \"A bonus may be a mere gift or gratuity as a gesture of goodwill and not enforceable, or it may be something which an employee is entitled to on the happening of a condition precedent and is enforceable when the condition is fulfilled. But in both cases it is something in addition to or in excess of that which is ordinarily received.\" The Textile Labour Inquiry Committee defined 'bonus' as follows :- \"The term bonus is applied to a cash payment made in addition to wages. It generally represents the cash incentive given conditionally on certain standards of attendance and efficiency being attained.\" There are however two conditions which have to be satisfied before a demand for bonus can be justified and they are, (1) when wages fall short of the living standard and (2) the industry makes huge profits part of which are due to the contribution which the workmen make in increasing production. The demand for bonus becomes an industrial claim when either or both these conditions are satisfied. The principles for the grant of bonus were discussed and a formula was evolved by the Full Bench of the Labour Appellate Tribunal in Millowners' Association, Bombay v. Rashtreeya Mill Mazdoor Sangh, Bombay (2) \"As both labour and capital contribute to the earnings of the industrial concern, it is fair that labour should derive some benefit, if there is a surplus after meeting prior or necessary charges\" and the following were prescribed as the first charges on gross profits, viz., (1) Provision for depreciation, (2) Reserves for rehabilitation, (3) A return at 6 per cent. on the paid up capital. (4) A return on the working capital at a lesser rate than the return on paid up capital. The surplus that remained after meeting the aforesaid deductions would be available for distribution as bonus. (1) (1948) D.L.R. 225, 233. (2) (1950) 2 L.L.J. 247. It is therefore clear that the claim for bonus can be made by the employees only if as a result of the joint contribution of -capital and labour the industrial concern has earned profits. If in any particular year the working of the industrial concern has resulted in loss there is no basis nor justification for a demand for bonus. Bonus is not a deferred wage. Because if it were so it would necessarily rank for precedence before dividends' The dividends can only be paid out of profits and unless and until profits are made no occasion or question can also arise for distribution of any sum as bonus amongst the employees. If the industrial concern has resulted in a trading loss, there would be no profits of the particular year available for distribution of dividends, much less could the employees claim the distribution of bonus during that year. This has been clearly recognised even in the various decisions of the Labour Appellate Tribunal, e.g., Nizam Sugar Factory Ltd., Hyderabad v. Their Workmen(1), Textile Mills, Madhya Pradesh v. Their Workmen (2) and Famous Cine Laboratory v. Their Workmen (3). This was also the basis of the demand of the respondent in the case before us, its case being that the appellant had reaped substantial profits during the year 1949. This case was negatived by the Industrial Court as well as the Labour Appellate Tribunal, both of whom held that the working of the appellant during the year 1949 had resulted in a loss. Whereas the Industrial Court declined to grant the respondent any relief because the working of the appellant during the year had resulted in a loss, the Labour Appellate Tribunal made a special case for the respondent in spite of its concurrence with that finding of the Industrial Court. It is significant to observe that this principle was accepted by the Labour Appellate Tribunal itself. \"As at present advised a claim for bonus which had been rested on profits earned should ordinarily be determined on the basis of the profits earned in the year under claim and that the scale of bonus should be determined on the quantum of profits earned in the (1) (1952) I L.L.J. 386. (2) (1952) 2 L.L.J. 625. (3) (1953) I L.L.J. 466. year. So, it would follow that if there is trading loss in the year under claim, bonus should not ordinarily be awarded. It however observed: \" But, in our opinion, that should not be the universal rule. Considerations of social justice cannot be disregarded altogether, in relations between capital and labour. There may be special cases, and we consider the case before us to be one, where social justice would demand that labour should have bonus for the year where for that very year capital had not only a.. reasonable return but much in excess of that. \" The Labour Appellate Tribunal did not accept the contention of the respondent that bonus should be linked to dividends nor did it rest its decision on the respondent having a right, title and interest in the reserves and the undistributed profits of the appellant. Linking of bonus to dividend would obviously create difficulties. Because if that theory was accepted a company would not declare any dividends but accumulate the profits, build up reserves and distribute those profits in the shape of bonus shares or reduce the capital in which event the workers would not be entitled to claim anything as and by way of bonus. The workers not being members of the company would also not have any right, title and interest in the reserves or the undistributed profits which would form part of the assets of the company. Even on a winding up of a company the property of the company would be applied in satisfaction of its liabilities pari passu and, unless the articles of association of the company otherwise provided, in distribution amongst the members according to their rights and interest in the company. The employees would in no event be entitled to any share or interest in the assets and the capital of the company. A transfer of moneys from these reserves or the undistributed profits would therefore not enure for the benefit of the workers. The shareholders only would be entitled to such benefit and the mere fact that dividends were declared and paid to the shareholders out of such reserves and undistributed profits would not entitle the workers to demand bonus when in fact the working of the industrial concern during the particular year had showed a loss. It has also got to be remembered that the labour force employed in an industrial concern is a fluctuating body and it cannot be predicated of the labour force in a particular year that it represents the past and the present workers, so that it can claim to demand bonus out of the reserves or undistributed profits of the Previous years. On the accounts of each year being made up and the profits of the industrial concern being ascertained the workers during the particular year have their demand for bonus fully satisfied out of the surplus profits and the balance of profits is allocated and carried over in the accounts. No further claimed payment of bonus out of those reserves or undistributed profits can therefore survive. To admit the claim for bonus out of the reserves transferred to the profit and loss account would tantamount to allowing a second bonus on the same profits in respect of which the workers had already received their full bonus in the previous year. The labour force which earns the profits of a particular year by collaborating with the employers is distinct from the one which contributed to the profits of the previous years and there is no continuity between the labour forces which are employed in the industrial concern during the several years. The ratio which applies in the case of the shareholders who acquire the right, title and interest of their predecessorsin-interest does not apply to the labour force and the fact that the shareholders get a dividend by transfer of funds from the reserves and undistributed profits of the previous years would not entitle the workers to demand bonus out of those funds if the working of the industrial concern during the particular year has resulted in a trading loss. The considerations of social justice imported by the Labour Appellate Tribunal in arriving at the decision in favour of the respondent were not only irrelevant but untenable. Social justice is a very- vague and indeterminate expression and no clear-cut definition can be laid down which will cover all the situations. Mr. Isaacs, the learned counsel for the respondent,. attempted to give a definition in the following terms :- \"social justice connotes the balance of adjustments of the various interests concerned in the social and economic structure of the State, in order to promote harmony upon an ethical and economic basis\" and he stated that there were three parties concerned here, viz., the employers, the labour and the State itself, and the conception of social justice had to be worked out in this context. Without embarking upon a discussion as to the exact connotation of the expression \"social justice\" we may only observe that the concept of social justice does not emanate from the fanciful notions of any particular adjudicator but must be founded on a more solid foundation. Indeed the Full Bench of the Labour Appellate Tribunal evolved the abovequoted formula with a view to dispensing social justice between the various parties concerned. It adopted the following method of approach at page 1258 of that judgment :- \" Our approach to this problem is motivated by the requirement that we should ensure and achieve industrial peace which is essential for the development and expansion of industry. This can be achieved by having a contented labour force on the one hand, and on the other hand an investing public who would be attracted to the industry by a steady and progressive return on capital which the, industry may be able to offer. \" This formula was reiterated in Textile Mills, M. P. Their Workmen(1), and Famous Cine Laboratory v. ,Their Workmen( 2 ), and in the latter case it deprecated the idea of adjudicators importing considerations of social justice which were not comprised in that formula :- \" And what is social justice ? Social 'justice is not the fancy of any individual adjudicator; if it were so then ideas of social justice might vary from adjudicator to adjudicator over all parts of India. In our Full Bench decision (See 1950,2 L.L.J., p. 1247), we care. fully considered the question of social justice in relation (1) (1952) 2 L.L.J. 625. (2) (1953) 1 L.L.J. 466. to bonus, and there we equated the rights and liabilities of employers and workmen with a view to achieving a just formula for the computation of bonus. That Full Bench decision stands, and this tribunal and all other tribunals are bound by it. \" Without committing ourselves to the acceptance of the above formula in its entirety we may point out that the Labour Appellate Tribunal did not apply its own formula to the facts of the present case. It is also significant to note that even while importing considerations of social justice the Labour Appellate Tribunal was oblivious of the fact that it was by their own acts of indiscipline and strike that the workers of the appellant company themselves contributed, to the trading losses incurred by the appellant and it hardly lay in their mouth then to contend that they were none the less entitled to a payment of bonus commensurate with the dividend paid to the shareholders out of the undistributed profits of the previous years. The Labour Appellate Tribunal also overlooked the fact that but for the Public Companies (Limitation of Dividend) Ordinance of 1948 the whole of the profits of 1948 could have been distributed after paying the workers bonus in that year of four annas in the rupee. We may before concluding refer to an argument which was addressed to us by Mr. Isaacs, the learned counsel for the respondent, that this Court under article 136 should not interfere with the decisions of the tribunals set up by the Industrial Disputes Act, 1947. This contention can be shortly answered by referring to our decision in Bharat Bank Ltd., Delhi v. Employees of the Bharat Bank Ltd., Delhi(1), where we held that the Industrial Tribunals were tribunals within the meaning of article 136 and further that article 136 has vested in this, Court exceptional and overriding power to interfere where it reaches the conclusion that a person has been dealt with arbitrarily or that a Court or tribunal within the territory of India has not given a fair deal to a litigant. (Vide (1) (1950] S.C.R. 459. Dhakeswari Cotton Mills Ltd. v. Commissioner of Income-tax, West Bengal(1). The result therefore is that the decision of the Labour Appellate Tribunal appealed against must be reversed and that of the Industrial Court (Textiles and Hosiery), Kanpur, restored. The appeal will accordingly be allowed with costs. Appeal allowed.",
        "26855411": "REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO(S). 521 OF 2022 (Arising out of SLP(Civil) No(s). 22539 of 2014) MESSER GRIESHEIM GmbH (NOW CALLED AIR LIQUIDE DEUTSCHLAND GmbH) \u2026APPELLANT(S) VERSUS GOYAL MG GASES PVT. LTD. \u2026RESPONDENT(S) JUDGMENT Rastogi, J. 1. Leave granted. 2. The appellant/decree holder has challenged the judgment of the Division Bench of the High Court of Delhi dated 1 st July, 2014 Signature Not Verified Digitally signed by Anita Malhotra Date: 2022.01.28 17:06:51 IST Reason: relegating to file a petition for execution of a money decree dated 7 th February, 2006(in excess of Rs. 20 lakhs) of a foreign Court indisputedly notified as a superior Court of a reciprocating territory before the District Court in view of Section 44A of the Code of Civil Procedure, 1908(hereinafter being referred to as the \u201cCode\u201d). 3. It is an old saying that the difficulties of the litigant in India begin when he has obtained a decree. The evil was noticed as far back in 1872 by the Privy Council in relation to the difficulties faced by the decree holder in execution of the decree (MIA p.612) 1. After more than a century, there has been no improvement and still the decree holder faces the same problem what was being faced in the past. A litigant coming to Court seeking relief is not interested in receiving a paper decree when he succeeds in establishing his case. What he primarily wants from the Court of Justice is the relief and if it is a money decree, he wants that money what he is entitled for in terms of the decree, must be satisfied by the judgment debtor at the earliest possible without fail keeping in view the reasonable restrictions/rights which are available to the judgment debtor under the provisions of the statute or the code, as the case may be. 1 General Manager of the Raj Durbhunga v. Coomar Ramaput Sing, (1871-72) 14 MIA 605 : 20 ER 912 4. Instant case is the live illustration before us where the decree holder was able to get a money decree of a foreign Court which is notified as a superior Court of a reciprocating territory way back on 7th February, 2006 and after 16 years have been rolled by, still the screen is smokey and not clear as to which is the forum where he could approach for execution of a decree. 5. The brief facts culled out from the record are that the appellant initiated proceedings before the High Court of Justice, Queen\u2019s Bench Division, Commercial Court, United Kingdom(\u201cEnglish Court\u201d) which is a superior Court of a reciprocating territory(namely, United Kingdom of Great Britain and Northern Island) notified under Section 44A of the Code vide Notification No. SRO 399 dated 1st March, 1953 issued by the Ministry of Law as amended by GSR 201 dated 13 th March, 1958. 6. Earlier, a default decree was passed due to non\u00adappearance of the respondent/judgment debtor in UK Court on 6th February, 2003. The appellant issued a winding up notice to the respondent, who objected the same as the judgment dated 6 th February, 2003 was a default decree. To meet the objection raised by the respondent, the appellant approached the English Court and sought setting aside of the default decree and prayed for passing a decree on merits of the case. At this juncture, the respondent entered appearance and the English Court by a judgment and decree dated 7th February, 2006 granted a money decree for a principal sum of US $ 5,824,564.74. 7. It is pertinent to note that the respondent did not file any appeal against the judgment and decree dated 7 th February 2006 and that has attained finality. 8. The total decretal amount indisputedly on the date of filing of the execution petition before the Delhi High Court on 27 th April, 2006 was exceeding Rs. 20 lakhs which was the pecuniary limits of the Delhi High Court in terms of Section 5(2) of the Delhi High Court Act, 1966(hereinafter being referred to as \u201cAct 1966\u201d) which was later enhanced to Rs.2 crores in the year 2015, to entertain the execution petition as the principal Court of original jurisdiction. 9. It has been alleged by the appellant that the decretal amount, if it is taken at the face value as on 20 th January, 2022, may come to approximately Rs. 99 crores. 10. The appellant filed a petition for execution of money decree in the High Court of Delhi on 27th April, 2006. A reply to the execution petition was filed by the respondent on 17 th January 2007, raising several objections which are available at its command as envisaged under Section 13 of the Code. Later a further objection was raised that the High Court of Delhi has no jurisdiction to entertain the execution petition in view of Section 44A of the Code. 11. Learned Single Judge of the High Court overruled the preliminary objections and held that taking value of the execution of the money decree dated 7th February, 2006 of the English Court exceeding Rs. 20 lakhs, at given point of time, i.e., 27 th April, 2006(the day on which the execution petition was filed), High Court of Delhi holds the exclusive jurisdiction of ordinary original civil jurisdiction and after meeting out other objections on merits decided the execution petition by a judgment dated 29 th November, 2013. The operative part of the judgment are as under:\u00ad E.A. No. 653 of 2009 69. This is an application by the DH for a direction to the JD to deposit the original title deeds of Sahibabad property. 70. For the reasons stated therein, the application is allowed and a direction is issued to the JD to deposit the original title deeds of the property, land measuring 18774 sq. yds. At 8/7, Site\u00adIV, Sahibabad, Industrial Area, Sahibabad, District Ghaziabad in the Court within two weeks, and when so deposited, it shall be kept in a sealed cover by the Court. At the time of filing the original title deeds, the JD will deliver to the learned counsel for the DH a photocopy thereof. EA No. 654 of 2009 71. By this application, the DH seeks a clarification that the order dated 3rd November, 2009 passed by the Court releasing the lien on the property at Ghaziabad, Uttar Pradesh should be made conditional upon the Managing Director (MD) or any other competent director of the JD furnishing a written undertaking that the Ghaziabad property is free from all encumbrances and further than no written consent from the State Bank of India (\u2018SBI\u2019) under Clause 11 of the agreement for hypothecation of goods and assets dated 24th November, 2008 is required. 72. Despite notice having been served in both these applications way back on 20th November 2009, no reply has been filed to this application. 73. Consequently, the application is allowed and a direction is issued to the MD/authorized Director of the JD to file an affidavit in this Court within two weeks clarifying (a) that the property at Sahibabad, Ghaziabad is free from all encumbrances or charge as on the date of the order dated 3 rd November, 2009; (b) that no written consent from the SBI under Clause 11 of the Agreement for hypothecation of the goods and assets dated 24 th November, 2008 is required for enforcing the said order vis\u00ad\u00e0\u00advis the said Sahibabad property in terms of the statement made by the JD to the Court on 27th April, 2006 and (c ) that, as on date, there is no lien/charge etc. created on the Sahibabad property. 74. The application is disposed of.\u201d 12. The judgment of the learned Single Judge of the High Court of Delhi dated 29th November, 2013 was assailed by the respondent\u00ad judgment debtor before the Division Bench of the High Court. 13. The Division Bench of the High Court, in the facts and circumstances, considered it appropriate to examine the singular issue confining it to the jurisdiction of the High Court of Delhi in executing the money decree dated 7 th February, 2006 of the English Court, in exercise of its original jurisdiction in terms of Section 44A of the Code and after the parties being heard, arrived at the conclusion that Section 44A is an independent right conferred on a foreign decree holder for enforcement of its decree in India. It is a fresh cause of action and has no co\u00adrelation with jurisdictional issues. The scheme of Section 44A of the Code is alien to the scheme of domestic execution as provided under Section 39(3) of the Code and finally held that the High Court of Delhi, not being a District Court, in terms of Section 44A of the Code, is not vested with the jurisdiction to entertain execution petition and directed to be transferred to the Court of District Judge within whose jurisdiction the property sought to be attached is situated for being dealt with in accordance with law, which is a subject matter of challenge in appeal before us. 14. Dr. Abhishek Manu Singhvi, learned senior counsel appearing for the appellant submits that the jurisdiction for execution of a foreign Court\u2019s decree of a reciprocating territory vests with the High Court of Delhi, provided the value of the money decree exceeds the pecuniary limits as notified under Section 5(2) of the Act 1966. 15. Learned counsel further submits that it is not in dispute that the judgment and decree dated 7th February, 2006 has been passed by a notified superior Court of the reciprocating territory, namely, United Kingdom of Great Britain and Northern Ireland within the meaning of Section 44A of the Code in terms of a notification dated 1st March 1953 issued by the Ministry of Law. The High Court of Delhi also vests with the ordinary original civil jurisdiction, subject to the pecuniary limits as being notified under Section 5(2) of the Act 1966 and it would be impossible to read into Section 44A that even though the pecuniary jurisdiction of a civil Court(which lacks the pecuniary jurisdiction) is restricted, only for the purpose of execution of a foreign decree, it becomes a District Court in respect of the matters which fall within the ordinary civil jurisdiction of the High Court and when there is a split jurisdiction in the cities like Delhi, Kolkata, Chennai and Mumbai, the High Court would have to be considered to be included as \u201ca principal civil Court of original jurisdiction\u201d where it exceeds its pecuniary jurisdiction as being contemplated in the respective statutes alike Section 5(2) of the Act 1966 in the instant case. 16. Learned counsel further submits that there can be two or more Courts which are concurrently a principal civil Court of original jurisdiction subject to their pecuniary limits as being envisaged under Section 5(2) of the Act 1966. If that being so, if pecuniary jurisdiction exceeds what is prescribed/notified under the Act, it is the High Court of Delhi which will be considered to be the principal Court of original civil jurisdiction as defined under Section 5(2) of the Act 1966 and the execution petition being a continuation of the suit proceedings, the Division Bench of the High Court has committed a manifest error in holding that the High Court of Delhi is not vested with the jurisdiction to entertain an execution petition as being a District Court defined in terms of Section 44A of the Code. 17. Per Contra, Mr. Rakesh Dwivedi, learned senior counsel for the respondent, while supporting the finding recorded in the impugned judgment, submits that Section 44A is an independent right conferred on a foreign decree holder for enforcement of its decree in India and the scheme of Section 44A of the Code is alien to the scheme of domestic execution as provided under Section 39(3) of the Code. The domestic decree can indeed be executed by the Court which passed the decree or Court of competent jurisdiction to which it is transferred for execution. So far as execution of foreign decree is concerned, it is being governed by an independent right conferred under Section 44A of the Code which unequivocally confers exclusive jurisdiction in this regard on a \u201cDistrict Court\u201d and the words mandating the competence of the executing Court, to try the original cause, in which the decree was passed, are conspicuous by their absence, in this provision. 18. To be more specific, learned counsel submits that Section 44A of the Code is in the nature of an independent, enabling provision which gives the decree holder a fresh and new cause of action irrespective of the original character of the cause in which the decree came to be passed. 19. Learned counsel further submits that so far as the pecuniary competence to try a suit of the decretal amount is concerned, it may be in the context of the domestic decree for execution as referred to under Sections 38 and 39 of the Code and once Section 44A confers exclusive jurisdiction on District Court in which the money decree of a foreign Court has to be filed for execution, no other Court holds competence other than the District Court for execution of a foreign decree. 20. Learned counsel further submits that Section 5(2) of the Act 1966 conferred with a limited ordinary original civil jurisdiction qua \u2018suits\u2019 above a certain pecuniary value and further submits that the expression \u201csuit\u201d as used in Section 5(2) of the Act 1966 has to be understood in its ordinary, limited sense of a \u2018Civil Suit\u2019, and will not include execution proceedings. Section 4 of the Delhi High Court(Amendment) Act, 2003 draws a distinction between a \u201csuit\u201d and \u201cother proceedings\u201d and submits that it is the District Court alone which holds jurisdiction for executing a foreign decree and no error has been committed by the High Court in the impugned judgment which may call for interference of this Court. 21. We have heard learned counsel for the parties and with their assistance perused the material available on record. 22. The question that emerges for our consideration is whether the High Court of Delhi in exercise of its original jurisdiction is a competent Court to entertain a petition for executing a money decree(in excess of Rs.20 lakhs) of a foreign Court which is notified as a superior Court of reciprocating territory under Section 44A of the Code. 23. It is not disputed that so far as the expression \u201csuperior Court of any reciprocating territory\u201d as defined under Section 44A of the Code is concerned, the judgment and decree dated 7 th February, 2006 has been passed by the notified superior Court of the reciprocating territory, namely, United Kingdom of Great Britain and Northern Ireland within the meaning of Section 44A of the Code vide notification dated 1st March, 1953 issued by the Ministry of Law, thus it leaves no doubt that the decree of the High Court of England would be considered to be a decree of superior Court of a reciprocating territory. 24. In order to appreciate the submissions made, it may be relevant to first take a look at the scheme of the Code and also relevant provisions of the Act 1966 which are reproduced hereunder:\u00ad \u201cSection 2(4) of the Code \u2013 \u201cDistrict\u201d \u201cdistrict\u201d means the local limits of the jurisdiction of a principal Civil Court of original jurisdiction (hereinafter called a \u201cDistrict Court\u201d), and includes the local limits of the ordinary original civil jurisdiction of a High Court; Section 6 of the Code \u2013 \u201cPecuniary Jurisdiction\u201d Save in so far as is otherwise expressly provided, nothing herein contained shall operate to give any Court jurisdiction over suits the amount or value of the subject\u00admatter of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction. Section 13 of the Code \u2013 \u201cWhen Foreign Judgement not Conclusive\u201d A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except\u2014 (a) where it has not been pronounced by a Court of competent jurisdiction; (b) where it has not been given on the merits of the case; (c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable; (d) where the proceedings in which the judgment was obtained are opposed to natural justice; (e) where it has been obtained by fraud; (f) where it sustains a claim founded on a breach of any law in force in India. Section 44A of the Code \u00ad \u201cExecution of Decrees passed by Courts in reciprocating territory\u201d (1) Where a certified copy of a decree of any of the superior courts of any reciprocating territory has been filed in a District Court, the decree may be executed in India as if it had been passed by the District Court. (2) Together with the certified copy of the decree shall be filed a certificate from such superior court stating the extent, if any, to which the decree has been satisfied or adjusted and such certificate shall, for the purposes of proceedings under this section, be conclusive proof of the extent of such satisfaction or adjustment. (3) The provisions of Section 47 shall as from the filing of the certified copy of the decree apply to the proceedings of a District Court executing a decree under this section, and the District Court shall refuse execution of any such decree, if it is shown to the satisfaction of the court that the decree falls within any of the exceptions specified in clauses (a) to (f) of Section 13. Explanation 1.\u2014\u201cReciprocating territory\u201d means any country or territory outside India which the Central Government may, by notification in the Official Gazette, declare to be a reciprocating territory for the purposes of this section; and \u201csuperior courts\u201d, with reference to any such territory, means such Courts as may be specified in the said notification. Explanation 2.\u2014\u201cDecree\u201d with reference to a superior court means any decree or Judgment of such Court under which a sum of money is payable, not being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty, but shall in no case include an arbitration award, even if such an award is enforceable as a decree or Judgment.]] Section 5 Delhi High Court Act, 1966 \u2013 \u201cJurisdiction of High Court of Delhi\u201d (1) The High Court of Delhi shall have, in respect of the territories for the time being included in the Union Territory of Delhi, all such original, appellate and other jurisdiction as, under the law in force immediately before the appointed day, is exercisable in respect of the said territories by the High Court of Punjab. (2) Notwithstanding anything contained in any law for the time being in force, the High Court of Delhi shall also have in respect of the said territories ordinary original civil jurisdiction in every suit the value of which exceeds Rupees twenty lakhs. 25. The expression \u2018District\u201d is defined under Section 2(4) of the Code and the term \u201cDistrict Court\u201d referred under Section 44A of the Code although not defined, but on conjoint reading of the provision makes it clear that it refers to the local limits of the jurisdiction of a principal civil Court of original jurisdiction (provisions of the Code called a \u201cDistrict Court\u201d) and it includes the local limits of the ordinary original civil jurisdiction of a High Court and it is not disputed that principal civil Court of original jurisdiction is normally a District Court (with whatever change in the nomenclature) and the High Courts in India exercising ordinary original civil jurisdiction are not too many, but where there is a split jurisdiction based on its pecuniary value, notified from time to time, the District Court or the High Court in its ordinary original civil jurisdiction is competent to exercise power for execution of decree, including money decree of the foreign Court of reciprocating jurisdiction, provided other conditions are complied with as contemplated under Section 44A of the Code. 26. Section 44A of the Code provides for execution of decrees passed by the foreign Courts in reciprocating territories. It, inter alia, stipulates that where a certified copy of a decree of any of the superior Court of any reciprocating territory has been filed in a District Court, the decree may be executed in India as if it had been passed by a District Court. Together with the certified copy of the decree, a certificate from such superior court is to be filed stating the extent, if any, to which the decree has been satisfied or adjusted. Such a certificate is the conclusive proof of the extent of such satisfaction or adjustment. Sub\u00adsection 3 of Section 44A of the Code further lays down that provisions of Section 47 of the Code shall apply to such execution proceedings and the Court can refuse execution of any such decree, if it is shown to the satisfaction of the Court that the decree falls within any of the exceptions specified in clauses (a) to (f) in Section 13 of the Code. 27. The ordinary original civil jurisdiction of the High Court is always exercised, based on pecuniary limits. It would be impossible to read into Section 44A of the Code that even though the pecuniary jurisdiction of Civil Court is restricted, still for the purpose of execution of a foreign decree, it becomes the District Court in respect to those matters which fall within the ordinary original civil jurisdiction of the High Court and the expression \u201cdistrict\u201d defined under Section 2(4) of the Code will have to be given its true effect. To read the expression \u201cDistrict Court\u201d in Section 44A for execution of foreign decree, it will be construed to be a Court holding ordinary original civil jurisdiction in terms of its pecuniary limits as being notified under Section 5(2) of the Act 1966. 28. It leaves no manner of doubt that once the pecuniary jurisdiction at the given point of time exceeded Rs. 20 lakhs as notified by the High Court under Section 5(2) of the Act 1966 (later vide notification dated 10th August, 2015 (w.e.f. 26th October, 2015) pecuniary limits has been revised to Rs.2 crores), it is the High Court of Delhi which holds its exclusive jurisdiction as ordinary original civil jurisdiction to execute a foreign decree under Section 44A of the Code and it goes without saying that execution always is in continuation of the proceedings. 29. Section 24 of the Punjab Courts Act 1918, of which the Division Bench has put its emphasis, which is applicable to Delhi, the Court of District Judge would be the principal civil Court of original jurisdiction. Under Section 5(1) of the Act 1966, the High Court of Delhi exercises all such original, appellate and other jurisdiction as was exercisable by the High Court of Punjab in the Union Territory of Delhi. Then, there is Section 5(2) of the Act 1966 which starts with a non\u00adobstante clause which empowers the High Court of Delhi to exercise its ordinary original civil jurisdiction in every suit where the pecuniary value exceeds, as being notified by the competent authority and thus, the High Court of Delhi indeed holds original civil jurisdiction in a suit where the value exceeds its pecuniary limits and if Section 24 of the Punjab Courts Act, 1918 is read with Section 5(2) of the Act 1966, it is quite clear that certain jurisdiction has been taken away from the District Court and conferred with the High Court of Delhi and this original civil jurisdiction is only in respect to the suits where the pecuniary limit exceeds as notified by the authority under Section 5(2) of the Act 1966 and that would make the High Court of Delhi, the principal Court of original civil jurisdiction, for all practical purposes. 30. The Division Bench has proceeded on the basis of the expression \u201cDistrict Court\u201d, as being referred under Section 44A of the Code but it has not taken into consideration the other relevant provisions of which a reference has been made by us while coming to the conclusion that the expression \u201cDistrict\u201d as defined under Section 2(4) of the Code only lays down the limits of the jurisdiction of the principal civil Court of original jurisdiction and that includes the ordinary original civil jurisdiction of the High Court and once the pecuniary jurisdiction exceeds as being notified under the relevant statute, the jurisdiction vests exclusively with the High Court as an ordinary original civil jurisdiction for execution of a foreign decree under Section 44A subject to the just objections which are available to the parties/judgment debtor as envisaged under Section 13 of the Code. 31. Consequently, the appeal succeeds and accordingly allowed. The judgment of the Division Bench of the High Court dated 1 st July 2014 is hereby quashed and set aside. Since the parties have not addressed on merits, E.F.A.(O.S.) No. 3 of 2014 is restored on the file of the Division Bench of the High Court of Delhi. This being an old matter where the foreign decree dated 7 th February, 2006 could not have been executed for almost 16 years by this time, we consider it appropriate to observe that let the Division Bench may take up the matter on priority and decide the same on its own merits as expeditiously as possible keeping in view its long awaiting execution in accordance with law, but in no case later than four months. 32. Pending application(s), if any, stand disposed of. \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026J. (AJAY RASTOGI) \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026...J. (ABHAY S. OKA) NEW DELHI JANUARY 28, 2022.",
        "62854486": "* IN THE HIGH COURT OF DELHI AT NEW DELHI CRL.M.C. 1410/2018 Reserved on : 26.02.2020 Date of Decision : 03.03.2020 IN THE MATTER OF: SUNITA PALTA & ORS ..... Petitioners Through: Mr. Saraswata Mohapatra, Advocate Versus M/S KIT MARKETING PVT LTD ..... Respondent Through: Mr. Rajiv Sharma, Advocate CORAM: HON'BLE MR. JUSTICE MANOJ KUMAR OHRI 1. The present proceedings are instituted under Section 482 Cr.P.C challenging the order dated 14.02.2017 passed by the Metropolitan Magistrate in CC No.874/2017 whereby the present petitioners were summoned for the offence punishable under Section 138 N.I. Act. 2. The respondent, a private limited company, had filed a complaint through its authorized representative stating that it was engaged in the business of plywood in the name and style of M/s Kit Marketing Private Limited. The accused are regular purchasers of goods from the complainant on credit basis and have made regular payment towards sale consideration from time to time in the past. On 01.12.2016, there was an outstanding balance of Rs.36,46,758/- payable by the accused against which following four account payee cheques were issued: Cheque Nos Dated Amount in Rs 489872 02.09.2016 95,718/- 489853 09.09.2016 7,62,548/- 489897 19.09.2016 3,31,740/- 640194 07.11.2016 1,55,142/- 3. All the aforesaid cheques were drawn on State Bank of India, Nehru Place, New Delhi from the account maintained by accused company. The cheques were presented by the complainant in his bank namely Axis Bank Limited, Mundka Delhi within the period of limitation however the same were returned unpaid to the complainant vide bank's return memo dated 21.11.2016 and 13.12.2016 with the remarks \"Funds Insufficient\". 4. The complainant issued a legal notice of demand dated 19.12.2016, through speed post, calling upon the accused to make payment within 15 days from the date of its receipt. The notices were duly received by the accused persons on 20.12.2016. Since no payment was made within the statutory period of 15 days, a complaint under Section 138 read with Sections 141/142 of NI Act was filed on 30.01.2017. The complaint has been filed against the accused company along with 7 other accused persons including the present petitioners. 5. Learned counsel for the petitioners contended that the petitioners are the independent Non-executive Additional Directors and were never involved in the day to day affairs of the company at any point of time. In this regard, he has referred to the complaint where the present petitioners were wrongly described as Directors. He also referred to para 17 of the complaint which contained allegations against the present petitioners and the same is reproduced hereunder: \"17. That the accused no. 1 is liable because the cheques in question have issued on behalf of the accused no. 1 and the accused no.2 to 6 are liable being the managing directors and directors of the accused no.1 and also being responsible for the control and management and day to day affairs of the accused no.1 and the accused no. 7 and 8 are liable being the signatories of the cheques in question.\" 6. The present petitioners were impleaded as accused nos. 5, 6 & 3. Learned counsel for the petitioners urged that it is an admitted case of the respondent that the petitioners were neither the Managing Directors nor the signatories to the cheques in question. Learned counsel for the petitioners also relied on the Form 32 with respect to Sunita Palta (petitioner No.1) and Bhagwan Singh Duggal (petitioner no.2) submitted on 29.06.2013 and 13.07.2013 respectively, showing them as independent Non-executive Additional Directors. Similarly, Form No. DIR-12 with respect to Ashwini Kumar Singh (petitioner No.3) shows his status as independent Non-executive Director w.e.f. 01.04.2014. 7. Learned counsel for the petitioners has also referred to the Annual Report for the year 2016-17 of the accused company and the certificate issued by the Company Secretary of the accused company which also shows the status of petitioners as independent Directors. 8. On the other hand, learned counsel for the respondent has supported the impugned order. It was submitted that the petitioners have the remedy to appear and place their defence before the trial court. He, however, has not disputed the position with respect to Form 32/Form No. DRI-12 filed by the petitioners. He submitted that the petitioners were named as Directors in the complaint on the basis of the information which was downloaded from the official website of ROC. 9. I have heard learned counsels for the parties and have also gone through the case records. 10. The vicarious liability of a person arises in terms of Section 141 of the Negotiable Instrument Act. In S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla reported as (2005) 8 SCC 89, it was held as follows:- \"10. While analysing Section 141 of the Act, it will be seen that it operates in cases where an offence under Section 138 is committed by a company. The key words which occur in the section are 'every person'. These are general words and take every person connected with a company within their sweep. Therefore, these words have been rightly qualified by use of the words: 'Who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence, etc' What is required is that the persons who are sought to be made criminally liable under Section 141 should be, at the time the offence was committed, in charge of and responsible to the company for the conduct of the business of the company. Every person connected with the company shall not fall within the ambit of the provision. It is only those persons who were in charge of and responsible for the conduct of business of the company at the time of commission of an offence, who will be liable for criminal action. It follows from this that if a director of a company who was not in charge of and was not responsible for the conduct of the business of the company at the relevant time, will not be liable under the provision. The liability arises from being in charge of and responsible for the conduct of business of the company at the relevant time when the offence was committed and not on the basis of merely holding a designation or office in a company. Conversely, a person not holding any office or designation in a company may be liable if he satisfies the main requirement of being in charge of and responsible for the conduct of business of a company at the relevant time. Liability depends on the role one plays in the affairs of a company and not on designation or status. If being a director or manager or secretary was enough to cast criminal liability, the Section would have said so. Instead of 'every person' the section would have said 'every director, manager or secretary in a company is liable'..., etc. The legislature is aware that it is a case of criminal liability which means serious consequences so far as the person sought to be made liable is concerned. Therefore, only persons who can be said to be connected with the commission of a crime at the relevant time have been subjected to action. xxx xxx xxx 18. To sum up, there is almost unanimous judicial opinion that necessary averments ought to be contained in a complaint before a person can be subjected to criminal process. A liability under Section 141 of the Act is sought to be fastened vicariously on a person connected with a company, the principal accused being the company itself. It is a departure from the rule in criminal law against vicarious liability. A clear case should be spelled out in the complaint against the person sought to be made liable. Section 141 of the Act contains the requirements for making a person liable under the said provision. That the respondent falls within the parameters of Section 141 has to be spelt out. A complaint has to be examined by the Magistrate in the first instance on the basis of averments contained therein. If the Magistrate is satisfied that there are averments which bring the case within Section 141, he would issue the process. We have seen that merely being described as a director in a company is not sufficient to satisfy the requirement of Section 141. Even a non-director can be liable under Section 141 of the Act. The averments in the complaint would also serve the purpose that the person sought to be made liable would know what is the case which is alleged against him. This will enable him to meet the case at the trial.\" 11. Again in, K.K. Ahuja v. V.K. Vora reported as (2009) 10 SCC 48, the vicarious liability of the officers of the company was summarised as under:- \"27. The position under Section 141 of the Negotiable Instruments Act, 1881 can be summarized thus: (i) If the accused is the Managing Director or a Joint Managing Director, it is not necessary to make an averment in the complaint that he is in charge of, and is responsible to the company, for the conduct of the business of the company. It is sufficient if an averment is made that the accused was the Managing Director or Joint Managing Director at the relevant time. This is because the prefix Managing to the word Director makes it clear that they were in charge of and are responsible to the company, for the conduct of the business of the company. (ii) In the case of a director or an officer of the company who signed the cheque on behalf of the company, there is no need to make a specific averment that he was in charge of and was responsible to the company, for the conduct of the business of the company or make any specific allegation about consent, connivance or negligence. The very fact that the dishonoured cheque was signed by him on behalf of the company, would give rise to responsibility under Sub-section (2) of Section 141. (iii) In the case of a Director, Secretary or Manager (as defined in Section 2(24) of the Companies Act) or a person referred to in Clauses (e) and (f) of Section 5 of Companies Act, an averment in the complaint that he was in-charge of, and was responsible to the company, for the conduct of the business of the company is necessary to bring the case under Section 141(1). No further averment would be necessary in the complaint, though some particulars will be desirable. They can also be made liable under Section 141(2) by making necessary averments relating to consent and connivance or negligence, in the complaint, to bring the matter under that sub-section. (iv) Other officers of a company cannot be made liable under Sub-section (1) of Section 141. Other officers of a company can be made liable only under Sub-section (2) of Section 141, be averring in the complaint their position and duties in the company and their role in regard to the issue and dishonour of the cheque, disclosing consent, connivance or negligence.\" 12. The issue relating to vicarious liability of a Non-executive Director came up before the Supreme Court in Pooja Ravinder Devidasani v. State of Maharashtra and Anr. reported as 2014(14) SCALE, and it was held as under:- \"17...Non-executive Director is no doubt a custodian of the governance of the Company but does not involve in the day-to- day affairs of the running of its business and only monitors the executive activity. To fasten vicarious liability under Section 141 of the Act on a person, at the material time that person shall have been at the helm of affairs of the Company, one who actively looks after the day-to-day activities of the Company and particularly responsible for the conduct of its business. Simply because a person is a Director of a Company, does not make him liable under the N.I. Act. Every person connected with the Company will not fall into the ambit of the provision. Time and again, it has been asserted by this Court that only those persons who were in charge of and responsible for the conduct of the business of the Company at the time of commission of an offence will be liable for criminal action. A Director, who was not in charge of and was not responsible for the conduct of the business of the Company at the relevant time, will not be liable for an offence under Section 141 of the N.I. Act. In National Small Industries Corporation (supra) this Court observed: \"13. Section 141 is a penal provision creating vicarious liability, and which, as per settled law, must be strictly construed. It is therefore, not sufficient to make a bald cursory statement in a complaint that the Director (arrayed as an accused) is in charge of and responsible to the company for the conduct of the business of the company without anything more as to the role of the Director. But the complaint should spell out as to how and in what manner Respondent 1 was in charge of or was responsible to the accused Company for the conduct of its business. This is in consonance with strict interpretation of penal statutes, especially, where such statutes create vicarious liability. 14. A company may have a number of Directors and to make any or all the Directors as accused in a complaint merely on the basis of a statement that they are in charge of and responsible for the conduct of the business of the company without anything more is not a sufficient or adequate fulfillment of the requirements under Section 141.\" 18. In Girdhari Lal Gupta Vs. D.H. Mehta & Anr. (1971) 3 SCC 189, this Court observed that a person 'in charge of a business' means that the person should be in overall control of the day to day business of the Company. 19. A Director of a Company is liable to be convicted for an offence committed by the Company if he/she was in charge of and was responsible to the Company for the conduct of its business or if it is proved that the offence was committed with the consent or connivance of, or was attributable to any negligence on the part of the Director concerned (See: State of Karnataka Vs. Pratap Chand & Ors). 20. In other words, the law laid down by this Court is that for making a Director of a Company liable for the offences committed by the Company under Section 141 of the N.I. Act, there must be specific averments against the Director showing as to how and in what manner the Director was responsible for the conduct of the business of the Company.\" 13. In Nandakumar & Ors. v. M/s ECE Industries Ltd. in SLP (Crl.) No.2770/2013 decided on 04.08.2014, while setting aside the order of dismissal of the petition of the accused filed under Section 482 Cr.P.C. by the High Court, the Supreme Court held as under:- \"Therefore, it is clear that merely being a Director of a company is not sufficient to make the person liable under Section 141 of the Act, till it is shown that the said Director was in-charge of and responsible for the conduct of his business. The Court below and the High Court erred in not appreciating the fact that the complainant in the mechanical way cited the names of the appellants which alleged to have been obtained from the website of the Ministry of Corporate Affairs and unnecessary dragged the appellants in litigation who were not directly charged or responsible for the company for the conduct of business. The requirement of Section 141 of the Negotiable Instrument Act is against the persons responsible for the conduct or business of the company at the relevant time. In absence of such allegation against the appellants, we hold that the complainant misused the mandate of Section 138 of the Negotiable Instrument Act.\" 14. Recently, in Chintalapati Srinivasa Raju v. Securities and Exchange Board of India reported as (2018) 7 SCC 443, it has been held as follows:- \"23....Non-Executive Directors are, therefore, persons who are not involved in the day-to-day affairs of the running of the company and are not in charge of and not responsible for the conduct of the business of the company.\" 15. To the similar effect are the decisions of Coordinate Benches of this Court in Kanarath Payattiyath Balrajh v. Raja Arora reported as 2017 SCC Online 7418, Har Sarup Bhasin v. M/s Origo Commodities India Pvt. Ltd. reported as 2020 SCC Online Del 9 and Chanakya Bhupen Chakravarti & Anr. v. Rajeshri Karwa & Ors. reported as 2018 SCC Online Del 12968. 16. Sub-sections (6) and (12) of Section 149 of the Companies Act, 2013 defines an \"independent director\" as under:- \"149. Company to Have Board of Directors xxx xxx xxx (6) An independent director in relation to a company, means a director other than a managing director or a whole-time director or a nominee director,-- (a) who, in the opinion of the Board, is a person of integrity and possesses relevant expertise and experience; (b) (i) who is or was not a promoter of the company or its holding, subsidiary or associate company; (ii) who is not related to promoters or directors in the company, its holding, subsidiary or associate company.\" xxx xxx xxx (12) Notwithstanding anything contained in this Act,- (i) an independent director; (ii) a non-executive director not being promoter or key managerial personnel, shall be held liable, only in respect of such acts of omission or commission by a company which had occurred with his knowledge, attributable through Board processes, and with his consent or connivance or where he had not acted diligently.\" 17. Admittedly, the petitioners are neither the Managing Directors nor the Authorized Signatories of the accused company. The accused company and the Managing Director are arrayed as accused No.1 and 2 along with others in the complaint pending before the concerned Metropolitan Magistrate. A perusal of the complaint filed under Section 138 r/w Sections 141/142 of NI Act filed by the complainant shows that except for the general allegation stating that the petitioners were responsible for control and management and day to day affairs of the accused company, no specific role has been attributed to the petitioners. To fasten the criminal liability under The Negotiable Instruments Act, 1881, the above generalised averment without any specific details as to how and in what manner, the petitioners were responsible for the control and management of affairs of the company, is not enough. 18. In Pepsi Foods v. Special Judicial Magistrate and Ors. reported as (1998) 5 SCC 749, it was held that summoning an accused person cannot be resorted to as a matter of course and the order must show due application of mind. 19. In view of the facts of the case and the aforementioned enunciation of law, I deem it fit to allow the present petition. The impugned order with respect to summoning the present petitioners for the offence under Section 138 of NI Act, is thus quashed. 20. Copy of this order be communicated to the concerned trial court. (MANOJ KUMAR OHRI) JUDGE MARCH 03, 2020 na",
        "42681804": "IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF JULY 2019 BEFORE THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY R.F.A.No.708 OF 2006 BETWEEN: 1. Ramanna, S/o. late Channapillaiah, Aged about 63 years, Residing at Shettigowdanadoddi Village, Hamlet of Muddapura Karenahalli, Bidadi Hobli, Ramanagaram Taluk, Bengaluru Rural District. 2. Hanumakka, W/o. Sri Ramanna, Aged about 58 years, Residing at the above address with The 1st appellant. ...Appellants (By Sri.R. Narayana, Advocate and Sri H.R. Lakshman Reddy, Advocate) AND: Chaluvaiah, S/o. Doddaiah, Aged about 63 years, Residing at Shettigowdanadoddi Village, RFA.No.708/2006 2 Hamlet of Muddapura Karenahalli, Bidadi Hobli, Ramanagara Taluk, Bengaluru Rural District - 562 109. ...Respondent (By Smt. M.B. Sindhu Shastry, Advocate for Sri N. Subba Shastry, Advocate) **** This Regular First Appeal is filed under Order 41 Rule 1 R/w Section 96 of the Code of Civil Procedure, 1908, against the judgment and decree dated:07.01.2006 passed in O.S.No.195/2002 on the file of the Principal Civil Judge (Sr.Dn), Ramanagaram, partly decreeing the suit for recovery of money. This Regular First Appeal coming on for Hearing this day, the Court delivered the following: JUDGMENT It is the defendants' appeal. The present respondent as a plaintiff had instituted a suit against the present appellants arraigning them as defendants in O.S.No.195/2002, in the Court of the Principal Civil Judge (Senior Division) at Ramanagara, Bengaluru Rural District, (hereinafter for brevity referred to as `trial Court'), for recovery of a sum of `1,96,500/- (Rupees One Lakh Ninety Six Thousand Five Hundred Only), with RFA.No.708/2006 future interest at the rate of 2% per month on a sum of `1,00,000/-. After contest, the said suit came to be decreed by the judgment of the trial Court dated 07.01.2006. It is against the said judgment and decree the defendants have preferred this appeal. 2. The summary of the case of the plaintiff in the Court below is that the defendant No.1 is the husband of defendant No.2. Defendant No.1 borrowed a sum of `1,00,000/- from the plaintiff on 06.11.1998 in the presence of the witnesses for their family necessity and also for education expenses of their daughters. They executed on that day an agreement agreeing to repay the said amount with interest at the rate of 2% per month. The period for repayment of money was for four years and in that regard, the defendants hypothecated the suit property as security. Inspite of several demands and issuance of legal notice, the defendants RFA.No.708/2006 failed to repay the loan amount, as such, the plaintiff was constrained to institute the suit. 3. In response to the summons served upon them, the defendants appeared through their counsel and filed their written statement where they denied all the plaint averments. They denied that they had borrowed a sum of `1,00,000/- from the plaintiff on 06.11.1998 as loan. On the other hand, the defendants contended that their daughters are already married, as such, there was no necessity for them to borrow any amount towards their education expenses. The defendants also denied that they had executed any Hypothecation Agreement in favour of the plaintiff. On the other hand, they have stated that on 04.06.1998 the defendant No.1 had sold 24 guntas of land in Sy.No.67/2, situated in Muddapurakarenahalli Village, Bidadi Hobli, Ramanagaram Taluk, to the plaintiff. Taking undue RFA.No.708/2006 advantage of the said transaction, the plaintiff had fabricated the agreement dated 06.11.1998. They further stated that they are in no way liable to pay any amount to the plaintiff as alleged. 4. Based on the pleadings of the parties, the trial Court framed the following issues: 1. Does the plaintiff prove that the defendants borrowed amount as alleged? 2. Whether the plaintiff is entitled for suit claim? 3. What Order or Decree? The plaintiff got himself examined as PW-1 and got examined Sri Chaluvaiah, Sri K.V. Thimmaiah, Sri K.T. Thimmaiah and Sri B.S.Krishna Murthy in his support as PWs-2, 3 and 4 respectively. He got marked the documents from Exs.P-1 to P-4. Defendant No.1 got himself examined as D.W.1 and certified copy of the RFA.No.708/2006 Sale Deed dated 04.06.1998 was marked as Ex.D-1 from the defendents' side. After hearing for both side, the trial Court by its impugned judgment and decree dated 07.01.2006 answered issue No.1 in the affirmative and issue No.2 partly in the affirmative and partly decreed the suit holding that the defendants shall pay the plaintiff a sum of `1,96,250/- (Rupees One Lakh Ninety Six Thousand Two Hundred Fifty Only) with interest at the rate of 6% per annum on a sum of `.1,00,000/- from the date of the suit till the date of realisation. It is against the said judgment and decree the defendants have preferred this appeal. 5. Lower Court records were called for and the same are placed before this Court. RFA.No.708/2006 6. Heard the arguments of the learned counsel from both side and perused the materials placed before this Court. 7. For the sake of convenience, the parties would be referred to as per their ranks before the trial Court. 8. The learned counsel for the appellants in his argument submitted that Ex.P-1 though is an unregistered document, still, a father cannot alienate or hypothecate minors' property. As such, the Agreement of Hypothecation at Ex.P-1 would not hold good. He further submitted that the plaintiff not taking any action for the alleged non-payment of interest for a period of nearly four years would also go to show the conduct of the plaintiff and creates a doubt in his case. He also stated that the suit is barred by limitation which the trial Court has failed to consider in its proper perspective. RFA.No.708/2006 9. Learned counsel for the respondent/plaintiff in her argument submitted that the defendants though have denied the execution of the Agreement at Ex.P-1, but, the evidence of PW-1 to PW-4, among them, PWs.2 to 4 are the witnesses to the execution of the agreement by the defendants, clearly proves the execution of the Agreement at Ex.P-1 by the defendants. She further submits that the Agreement in Ex.P-1 is an agreement creating charge against the property mentioned therein, however, since it evidences the loan transaction, the said agreement, which is unregistered, can be relied upon for its collateral purpose for proving the loan transaction. In her support, she relied upon several judgments of Hon'ble Apex Court and Coordinate Benches of this Court which would be referred to at the appropriate stage herein afterwards. RFA.No.708/2006 Learned counsel for the respondent/plaintiff further submitted that the limitation attracts in this case is not under Article 19 of the Limitation Act, 1963, but, it is under Article 55 of the same Act. As such, the limitation commences once there is breach of repayment as agreed to under the agreement. 10. In the light of the above, the only point that arise for my consideration is : \" Whether the judgment and decree under appeal requires an interference at the hands of this Court.\" As observed above, the appellants though have prayed for setting aside the impugned judgment and decree, in their arguments, confined only in questioning that the defendants could not have executed Ex.P-1. Further the said document was also a compulsorily registrable document since it creates charge, as such, RFA.No.708/2006 the trial Court ought not to have considered the document. However, the learned counsel for the appellants had made it clear that, he would not dispute on the question of execution of Ex.P-1 by the defendants and would not challenge the finding of the trial Court in that regard. When the evidence of the witnesses on the side of the plaintiff is perused, it go to show that the plaintiff, as PW-1, has reiterated the contentions of his plaint in his examination-in-chief filed in the form of affidavit evidence. He has stated clearly in his examination-in- chief that the schedule property belongs to the defendants and both the defendants jointly for their family necessities and for the education purpose of their children, had availed a loan of `1 lakh from him on 6.11.1998 and it is in that regard, they have executed the document at Ex.P-1, creating a charge against the property. He has got marked the said document at Ex.P-1. RFA.No.708/2006 11. In his cross-examination, interestingly, the defendants have not denied the execution of Ex.P-1 by them. It was only suggested to the witness that on 4.6.1998, the plaintiff had purchased 24 guntas of land in Survey No.67/2 and 27 guntas of land in Survey No.67/1, from defendant No.1, for a sum of `1,27,500/- and out of the said sale consideration, only a sum of `27,500/- was paid. The balance amount of `1 lakh was promised to be paid by the plaintiff to the defendants. Subsequently, the plaintiff took the signatures of the defendants on a blank paper. PW-1 admitted that on 4.6.1998, he purchased the lands, as suggested to him, in Survey No.67/2 and Survey No.67/1, from defendant No.1, for a valuable consideration. However, he denied that he has still remained with payment of a balance of sale consideration of `1 lakh to the defendants with regard to the said transaction and that he had obtained signatures of the defendants in blank paper. Thus, the RFA.No.708/2006 defendants without denying that they have got executed Ex.P-1, have merely suggested that plaintiff had obtained their signatures on blank paper, which the plaintiff has denied. By the said mere suggestion, it cannot be inferred that the defendants have not executed Ex.P-1. Otherwise, they would have specifically suggested to PW-1 that they have not executed Ex.P-1 and have not received the consideration mentioned in the said document. Further, it also cannot be ignored of the fact that Ex.P-1 is a document executed not on any white paper, but, it is on stamp paper, which stamp paper is shown to have purchased on 17.10.1998. Admittedly, even according to the defendants and if their version is believed, they have subscribed their signature on blank paper on 4.6.1998 when they said to have sold some RFA.No.708/2006 portion of the immovable property to the plaintiff. If that were to be the case, the question of the plaintiff getting a stamp paper of a specific date which is more than four months thereafter would not arise. As such, on the very basis of it, the alleged defence of the defendants that the plaintiff has obtained their signature on a blank paper would not sustain. 12. In addition to the above, when the evidence of PWs.2, 3 and 4 is perused, it reveals that PW-2 K.V.Thimmaiah and PW-3-K.T.Thimmaiah, have deposed to the effect that the loan transaction between the plaintiff and defendants had taken place in their presence and execution of the document at Ex.P-1 was also in their presence. Both of them have identified their signatures as witnesses in Ex.P-1. RFA.No.708/2006 In their cross-examination, nothing was elicited from them which makes their evidence in examination- in-chief unbelievable. On the other hand, a mere denial suggestion made to them that no such loan transaction was taken place between the parties has been denied by both the witnesses. 13. PW-4 - B.S.Krishnamurthy, has stated that he had been the scribe of the document at Ex.P-1. He has stated that it was got written through him. Even in his cross-examination also, nothing could be elicited, except suggesting to him that he was not instructed to write the document and that the defendants were not present when the same was written. However, the witness has not admitted the said suggestion as true. 14. The defendant No.1 - Ramanna, who got himself examined as DW-1 has nowhere stated that he has executed the document at Ex.P.1 on 6.11.1998. RFA.No.708/2006 However, he has only stated that on the said day, the defendants did not avail the loan of `1 lakh from the plaintiff. On the contrary, the very same witness in his cross-examination has admitted that Ex.P-1 bears the thumb marks of himself and his wife. 15. Thus, by virtue of evidence of PWs.1, 2, 3 and 4, which could not be shaken in their cross-examination, the plaintiff's evidence as PW-1 is further corroborated and established that, on the date 6.11.1998, both the defendants have jointly executed the document at Ex.P-1 in favour of the plaintiff and have availed a loan of `1 lakh from the plaintiff. The cross-examination of DW-1 also would enable the Court to come to a conclusion that the plaintiff has proved the availment of a loan of a sum of `1 lakh by the defendants on 6.11.1998. RFA.No.708/2006 16. The second question that would remain for consideration is, whether the Ex.P-1 was required to be considered as a basis for proving the alleged loan transaction between the parties. The said document which is on a stamp paper of a sum of `600/- go to show that the defendants jointly after availing a sum of `1 lakh as loan from the plaintiff, have agreed to create a charge on the immovable property shown in the said document. As such, the document is a document with respect to creation of a charge in response to a loan transaction which the executant of the document had availed from the plaintiff. Merely because the defendants have produced a certified copy of the Sale Deed dated 4.6.1998, which is marked at Ex.D-1 and which shows that some portion of the property in Survey No.67/1 and Survey No.67/2 were sold by the defendants in favour of the plaintiff, RFA.No.708/2006 by that itself, the very same defendants executing Ex.P-1 cannot suspected. The said document at Ex.P-1 since creates charge in favour of the plaintiff with respect to an immovable property, is required to be registered under Section 17 of the Registration Act, 1908. Admittedly, the said document is an unregistered document. A perusal of the evidence of PW-1, wherein the said document was marked as an exhibit, goes to show that while marking the said document, an objection was raised, however, subject to the objection for making of the said document, the same was marked. Though the said document was initially referred to in the legal notice dated 18.10.2002, issued by the plaintiff as a Deed of Hypothecation and similarly referred even in the plaint of the plaintiff also, but, a perusal of the said document go to show that nowhere the said document identifies RFA.No.708/2006 itself as a Deed of Hypothecation. On the other hand, the said document calls itself as an document creating charge and acknowledging the receipt of amount and for payment of interest. Therefore, safely the said document may be treated as not an Hypothecation Agreement. The said document since creates a charge, is a registrable document, but, admittedly it is not registered. 17. The learned counsel for the respondent in her argument while canvassing the point that merely because a document which is required to be registered is not registered would not be thrown away and the same can be relied for its collateral purpose, has relied upon some of the judgments of Hon'ble Apex Court High Court of Judicature at Madras and Coordinate Benches of this Court in her support. Those judgments are as below : RFA.No.708/2006 19 In Mattapalli Chelamayya and another -vs- Mattapalli Venkataratnam and another, reported in { (1972) 3 SCC 799}, at Paragraph-11, the Hon'ble Apex Court was pleased to observe as below : \" The direction to pay a sum of money which has been held due and payable by the appellants to the respondents is a direction giving effect to a liability which already existed. It does not create the liability for the first time but merely works out the liability. But the same thing cannot be said about the charge. The charge is created for the first time. The case, therefore, involves two distinct matters - one is a personal liability to pay a certain amount, and the second is an additional relief to recover that amount from the immovable property of the appellants, should they fail to pay as ordered. It is, therefore, clear that the two do not form one transaction, but two severable transactions. As pointed out long ago by Muttusami Ayyar, J., in Sambayya v. Gangayya : \"The test, therefore, is whether the transaction evidenced by the particular RFA.No.708/2006 instrument is single and indivisible or whether it really evidences two transactions which can be severed from each other, the one as creating an independent personal obligation and the other as merely strengthening it by adding a right to proceed against immovable property. But it should be remembered that it is not enough that there is an obligation to pay a sum of money, but that it is also necessary that the obligation should have an independent existence, and be in no way contingent or conditional on the breach of some obligation relating to immovable property created by the same instrument, for the contingency or the condition and the obligation would then be parts of one indivisible transaction\". In the present case the document evidences two transactions which can be severed from each other. One transaction creates an independent personal obligation to pay a certain sum of money and the other transaction namely the charge merely strengthens the first transaction by adding a right to proceed against the charged property. In our opinion, the High Court was right in directing that the second transaction with regard to the charge being a RFA.No.708/2006 severable transaction can be validly ignored and to the extent that it declares the personal obligation to pay the transaction, not being required to be compulsorily registered, the award was admissible in evidence.\" The very same Hon'ble Apex Court subsequently in Yellapu Uma Maheswari and another -vs- Buddha Jagadheeswararao and others, reported in { (2015) 16 SCC 787}, wherein the question of an unregistered and unstamped Partition Deed and Deed of Relinquishment was in question, was pleased to observe that the Deed of Relinquishment of right in respect of immovable property is not admissible in evidence for primary purpose of division of joint properties by metes and bounds, but, the same can be relied upon for collateral purposes of severance of title and nature of possession of various shares only if it is impounded by paying stamp duty together with penalty. RFA.No.708/2006 22 In Umde Bhojram -vs- Wadla Gangadhar, reported in CDJ 2004 APHC 097, a Single Bench of Andhra Pradesh High Court with respect to Section 58 of Transfer of Property Act, 1882, and an unregistered Mortgage Deed, was pleased to observe that, an unregistered simple Mortgage Deed disclosing any covenant undertaking to discharge the liability personally by the mortgagor without reference to the mortgaged property is admissible in evidence to prove the suit debt. It was further observed that, since the suit was for recovery of money covered by the claim, the document can be marked for collateral purposes for the recovery of money. A similar view was also taken by the High Court of Judicature at Madras in T.K.Sathiyanarayanan & others -vs- S.Jaganathan, reported in CDJ 2013 MHC 2298, where the Court held that, unregistered Mortgage Deeds can be marked as exhibits for the limited extent of RFA.No.708/2006 establishing the loan transactions and such marking cannot be found fault with. A Coordinate Bench of this Court in Smt.Krishnakumari -vs- Sri K.Suresh Kumar, reported in ILR 2015 KAR 2335, though held that a possession of immovable property and an agreement is required to be compulsorily registered and the non-registration of such a document would not affect the immovable property comprised therein, however, had considered about relying on such document for collateral purposes. In that regard, it referred to a judgment of Andhra Pradesh High Court in K.Ramamoorthi -vs- C.Surendranatha Reddy, (C.R.P.No.1623/2012, dated 27.07.2012), wherein the Andhra Pradesh High Court has observed as below : \"i) A document, which is compulsorily registrable, but not registered, cannot be received as evidence of any transaction affecting such property or conferring such RFA.No.708/2006 power. The phrase \"affecting the immovable property\" needs to be understood in the light of the provisions of Section 17(b) of the Registration Act, which would mean that any instrument which creates, declares, assigns, limits or extinguishes a right to immovable property, affects the immovable property. ii) The restriction imposed under Section 49 of the Registration Act is confined to the use of the document to affect the immovable property and to use the document as evidence of a transaction affecting the immovable property. iii) If the object in putting the document in evidence does not fall within the two purposes mentioned in (ii) supra, the document cannot be excluded from evidence altogether. iv) A collateral transaction must be independent of or divisible from a transaction to affect the property i.e., a transaction creating any right, title or interest in the immovable property of the value of rupees hundred and upwards.. RFA.No.708/2006 v) The phrase \"collateral purpose\" is with reference to the transaction and not to the relief claimed in the suit. Vii (b) An unregistered mortgage deed requiring registration may be received as evidence to prove the money debt, provided, the mortgage deed contains a personal covenant by the mortgagor to pay.\" From the above judgments, it is clear that even though a document pertaining to creation of charge was marked with respect to an immovable property is required to be a registered document, but, if the said document is unregistered, it cannot be totally ignored and can be considered for any collateral purposes. 18. In the instant case, the creation of charge with respect to the property mentioned in Ex.P-1 though requires the said document to be compulsorily registrable, but, a reading of the said document in its RFA.No.708/2006 entirety, clearly go to show that the defendants, as borrowers of a sum of `1 lakh from the plaintiff, have acknowledged of they borrowing the said sum from the plaintiff and have ensured to repay the said loan amount together with agreed rate of interest thereupon within four years from the date of agreement. It is to ensure the due repayment of the loan amount, a charge was offered to be created with respect to the immovable property shown therein. As such, independent of the creation of the charge, the agreement between the parties as a lender and a borrower stands established and for the said purpose, which is a collateral to the purpose of creation of charge, Ex.P-1 can be relied upon. As such, even though the learned counsel for the appellants did not canvas the said point of alleged unregistered document at Ex.P-1, still, the above analysis would clearly go to show that Ex.P-1 can be relied and acted upon for its collateral purposes. RFA.No.708/2006 19. The first leg of the argument of the learned counsel for the appellants is that, admittedly the property in Ex.P-1 since has given to the share of the minors, the defendants as parents of the minors could not have created a charge against the said property. No doubt, a reading of Ex.P-1 would go to show that the defendants have stated that the property was divided between the children, as such, the property shown in Ex.P-1 has been given up in favour of their minor daughters. It is for the educational expenses of those minor daughters, the defendants, as their natural parents, have executed the document at Ex.P-1. Here once again it can be repeated that, the aspect of whether the defendants executing the document on behalf of the minors would arise, provided the said document is taken for its primary purpose for creating charge against the said property. However, as observed above, RFA.No.708/2006 since the scope of Ex.P-1 for the present suit is confined only for its collateral purpose for repayment of the money, the other question as to whether defendant Nos.1 and 2 could create charge against the property shown therein would not arise for consideration. As such, the said argument of the learned counsel for the appellants is not acceptable. 20. The agreement at Ex.P-1 is admittedly executed on 6.11.1998, which says that the defendants have agreed to repay the loan amount together with interest thereupon at the rate of 2% per month. The period of repayment of the loan amount was fixed at four years from the date of the agreement, which was on 6.11.1998. It is in this context, learned counsel for the appellants canvassed a point in his argument that, had really the defendants executed the said agreement at Ex.P-1, then, the plaintiff would not RFA.No.708/2006 have kept quite for a long period for more than three years without claiming even the interest from the defendants. As such, the conduct of the plaintiff is questionable. Admittedly, the plaintiff has not taken any action against the defendants for the defendants not paying the interest regularly though agreed to under Ex.P-1. But, merely because the plaintiff has not taken any action for recovery of the interest agreed to be paid by the defendants periodically, by that itself, the entire agreement at Ex.P-1 cannot be suspected. This is also for the reason that, as already observed above, apart from PW-1, even PWs.2, 3 and 4 have also supported the case of the plaintiff by stating that PWs.2 and 3 are the witnesses to the said loan transaction and PW-4 was the scribe of the document. RFA.No.708/2006 Moreover, as further observed above, even DW-1 in his cross-examination also has admitted the execution of the document at Ex.P-1 by stating that himself, joined by his wife, have put their thumb marks to the said document. Thus, when the very execution of Ex.P-1 in favour of the plaintiff has stood established, the mere non-payment of the interest would not lead to such a suspicion so as to disregard or disbelieve Ex.P-1 or to exonerate the defendants from liability towards the plaintiff for repayment of the loan amount with interest thereupon. As such, the said point of argument canvassed by the learned counsel for the appellants is also not acceptable. 21. The last point of argument of learned counsel for the appellants is that the plaint is barred by limitation. According to the learned counsel for the appellants, the date of agreement as at Ex.P-1 is RFA.No.708/2006 6.11.1998 and the suit was filed in the trial Court on 11.11.2002, as such, the suit is barred by limitation under Article 19 of the Limitation Act, 1963. No doubt, Article 19 in Schedule-I of the Limitation Act mentions that the institution of a suit for recovery of money payable for the money lent is three years when the loan is made. However, learned counsel for the respondent in her arguments submitted that in the case on hand, admittedly the document at Ex.P-1 gives a period of four years for the repayment of the loan. Since the defendants have committed breach of the agreement by not repaying the loan even at the end of the fourth year from the date of the agreement, the cause of action has arisen to the plaintiff on the said date of breach, as such, the suit has been filed within the period. She further submitted that, it is Article 55 of Schedule-I of the Limitation Act which is applicable in RFA.No.708/2006 the case on hand. The said Article mentions that, in a suit for compensation for the breach of any contract, express or implied, not otherwise specifically provided in the Schedule-I, the limitation period would be three years from the date when the contract is broken or where there are successive breaches when the breach in respect of which the suit instituted occurs or where the breach is continuous from the date when the breach ceases. 22. In that regard, learned counsel for the respondent has relied upon the judgment of Allahabad High Court in Dhapai -vs- Dalla and others, reported in AIR 1970 Allahabad 206. In the said case, the plaintiff had obtained theka of fishery rights in certain tank for complete year. The defendants had agreed to pay half of theka money to the plaintiff in return of half of fishery rights in tank. The plaintiff had filed a suit for recovery RFA.No.708/2006 of amount after defendants working out their theka in respect of their share. The Court held that the suit was for recovery of amount and not for specific performance of contract, as such, it was governed by Article 115 and not Article 113 of the Schedule-I of the Limitation Act. 23. The scope of Article 113 and Article 115 of the Limitation Act was described by the Allahabad High Court at Paras 13 and 14 of the said judgment, which are reproduced here below : \" 13. We now proceed to consider why Art. 115 of the First Schedule to the Limitation Act should apply to the facts of the present case. Art.115 applies when there is a breach of contract and the suit is for compensation for the loss suffered by the innocent party. A breach of contract \"occurs where a party repudiates or fails to perform one or more of the obligations imposed upon him by the contract\": (vide Cheshire and Fifoot, p. 484). \"If one of two parties to a contract breaks the RFA.No.708/2006 obligation which the contract imposes, a new obligation will in every case arise -a right of action conferred upon the party injured by the breach\": (vide Anson's Law of Contract, p. 412). Admittedly in the present case there was a contract and according to the plaintiff and the findings of the Court a breach of contract had occurred inasmuch as the defendants failed to pay the stipulated amount upon the date fixed under the contract. 14. Difficulty can, however, be caused by the word \"compensation\" used in Article 115. It can be argued that the words \"compensation for breach of contract\" point rather to a claim for unliquidated damages than to the payment of a certain sum, and, therefore, where the suit is for the recovery of a specified sum, and not for the determination of unliquidated damages, this Article should not apply. In our opinion this contention would be wholly untenable because it was not accepted by this Court in the Full Bench case of Husain Ali Khan v. Hafiz Ali Khan, (1881) ILR 3 All 600 (FB) and by the Privy Council in the case of Tricomdas Cooverji Bhoja Vs. Sri Gopinath Jiu, AIR 1916 PC 182. RFA.No.708/2006 In the case of Husain Ali Khan, (1881) ILR 3 All 600 (FB), Art. 116 of Schedule II of the Limitation Act (Act 15 of 1877) was the subject of interpretation. Articles 115 and 116 of Schedule II of Act 15 of 1877 have been reproduced verbatim in the Indian Limitation Act, 1908. Article 115 deals with the breach of contracts not in writing and registered while Article 116 provided for breach of contracts in writing and registered. It is, therefore, obvious that the meaning which has to be given to the words \"compensation for breach of contract\" occurring in both the Articles will have to be the same. In Syndicate Bank -vs- Channaveerappa Beleri and others, reported in { (2006) 11 SCC 506}, at Para- 18, the Hon'ble Apex Court was pleased to observe as below : \" 18. Some arguments were addressed about the article of limitation that would apply in respect of a suit against the guarantors. Samuel held that in the case of refusal of a guarantor to pay the amount, the matter would RFA.No.708/2006 be governed by Article 115 of the Schedule to the Limitation Act, 1908, which corresponds to Article 55 of the Limitation Act, 1963. One of the submission made before us was that the term \"compensation for breach of contract\" in Article 55 indicates a claim for unliqudated damages and not a claim for payment of a sum certain as to what is the difference between a claim for unliquidated damages and a claim for a sum certain or a sum presently due, reference can advantageously be made to the classic statement of law by Chagla, C.J., in Iron and Hardware (India) Co. v. Firm Shamlal & Bros. If Article 55 does not apply, then a claim against a guarantor in such a situation may fall under the residuary Article 113 of the Limitation Act, 1963 corresponding to Article 120 of the old Act. The controversy about the appropriate article applicable, when the claim is found to be not exactly for \"compensation\" but ascertained sum due has been referred to as long back as in 1916 in Tricomdas Cooverji Bhoja v. Gopinath Jiu Thakur. Under the old Limitation Act (Act of 1908), the periods prescribed were different under Articles 115 and 116. The period prescribed were also different under Articles RFA.No.708/2006 115 and 120. But under the 1963 Act, the period of limitation is the same (three years) both under Articles 55 and 113. Having regard to the fact that the period of limitation is 3 years both under Article 55 and Article 113, and having regard to the binding decision in Samuel, we do not propose to examine the controversy as to whether the appropriate article is 55 or 113. Suffice it to note that even if the article applicable is Article 113, the Bank's suit is in time. In the light of the above judgment, when Ex.P-1 is perused, it clearly go to show that the defendants had agreed for the four years time for the repayment of the loan amount. Though the loan amount was specified, but, the period for repayment was fixed at four years. As such, the defendants had a time up to four years from the date of the alleged execution of the agreement for repaying the said loan amount and the interest thereupon. Once they commit any breach for payment of the said amount at the end of four years, the plaintiff RFA.No.708/2006 gets a cause of action to sue for recovery of the loan amount from the defendants. As such, the arisal of cause of action for the plaintiff in the case on hand is not necessarily the date of alleged agreement, but also the date when the breach of performance on the part of the defendants has occurred. Since the legal notice at Ex.P-2 go to show that plaintiff after waiting for a considerable period as per the agreement to enable the defendants to repay the loan amount, has finally issued a legal notice to them on 18.10.2002, calling upon the defendants to repay the loan amount and since the defendants have not responded to the said notice and not even repaid the loan amount, the plaintiff gets a cause of action as per Ex.P-1 to treat that the defendants have committed breach of agreement towards the repayment of the loan amount with interest thereupon and has thus instituted a suit without wasting any further time. As such, the contention of the RFA.No.708/2006 appellants that the suit was barred by limitation is also not acceptable. 24. Barring the above, the appellants have not raised any other contention in their memorandum of appeal and in the argument which are worth to be considered. As observed above, since the plaintiff by leading cogent evidence, both oral and documentary, has proved that the defendants have borrowed a sum of `1 lakh from him on 6.11.1998, agreeing to repay the same with agreed rate of interest thereupon and have committed default and have failed to repay the loan amount with interest, the plaintiff is entitled for recovery of the said sum. 25. The trial Court since has passed a considered and reasoned order decreeing the suit in-part after appreciating the materials placed before it in its proper RFA.No.708/2006 perspective, I do not find any reason to interfere in the said judgment and decree. 26. Accordingly, I proceed to pass the following order: ORDER The Appeal is dismissed. The judgment and decree dated 7.1.2006, passed by the learned Prl.Civil Judge (Sr.Dn.), Ramanagaram, in O.S.No.195/2002, is confirmed. The Registry is directed to transmit a copy of this judgment along with lower Court records to the lower Court without delay. Sd/- JUDGE bk/",
        "1161164": "Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. OF 2008 (Arising out of S.L.P. (C) No.15727 of 2008) J. Mitra & Co. Pvt. Ltd. ... Appellant (s) versus Asst. Controller of Patents & Desig. & Ors. .... Respondent (s) WITH Civil Appeal No. .........of 2008 arising out of S.L.P. (C) No.15729 of 2008 JUDGMENT S.H. KAPADIA, J. 1. Leave granted. 2. For the sake of convenience we refer to the facts mentioned in Civil Appeal No................ of 2008 (arising out of S.L.P. (C) No.15729 of 2008) filed by J. Mitra & Co. Pvt. Ltd. 3. This matter is a classic illustration of the confusion which has emerged on account of the postponement of in-part commencement of Patents (Amendment) Act, 2005. 4. Quite often the commencement of an Act is postponed to some specified future date or to such date as the Appropriate Government may, by Notification in the Official Gazette, appoint. Provision is also at times made for appointment of different dates for coming into force of different parts of the same Act. This is what has exactly happened in this case resulting into utter confusion with regard to pending FAO No.293/06 filed by respondent No.3 in the High Court under Section 116 of the Indian Patents Act, 1970 as amended by the Patents (Amendment) Act, 1999 w.e.f. 26.3.99. 5. Span Diagnostics Limited, respondent No.3 herein, is a public limited company established in 1972 to indigenously develop and manufacture a comprehensive range of ready- made diagnostic reagents made by clinical pathology laboratories. On 14.6.2000 J.Mitra & Company Pvt. Ltd., appellant herein, filed its application for grant of patent. After scrutiny, the said application stood notified by the Patent Office on 20.11.2004. 6. Thus, proceedings commenced before the Controller of Patents in the year 2000 when the appellant herein sought a patent of their device which was opposed by respondent no.3 in the year 2000. By then, the Patents (Amendment) Act, 1999 had amended the Patents Act, 1970 w.e.f. 26.3.99. Section 25 of the Patents Act, 1970 as amended by Patents (Amendment) Act, 1999 dealt with opposition to a patent vide Section 25. At that time appeals against decisions made by the Controller pertaining to \"pre-grant oppositions\" under Section 25 were maintainable before the High Court under Section 116(2) of the Indian Patents Act, 1970. 7. We quote hereinbelow Sections 25 and 116 as it stood in the year 2000 under the Patents (Amendment) Act, 1999 which read as under: \"Section 25. Opposition to grant of patent: (1) At any time within four months from the date of advertisement of the acceptance of a complete specification under this Act (or within such further period not exceeding one month in the aggregate as the Controller may allow on application made to him in the prescribed manner before the expiry of the four months aforesaid) any person interested may give notice to the Controller of opposition to the grant of the patent on any of the following grounds, namely: a. that the applicant for the patent or the person under or through whom he claims, wrongfully obtained the invention or any part thereof from him or from a person under or through whom he claims; b. that the invention so far as claimed in any claim of the complete specification has been published before the priority date of the claim - i. in any specification filed in pursuance of an application for a patent made in India on or after the 1st day of January, 1912; or ii. in India or elsewhere, in any other document: Provided that the ground specified in Sub-clause (ii) shall not be available where such publication does not constitute an anticipation of the invention by virtue of Sub-section (2) or Sub-section (3) of Section 29; that the invention so far as claimed in any claim of the complete specification is claimed in a claim of a complete specification published on or after the priority date of the applicant's claim and filed in pursuance of an application for a patent in India, being a claim of which the priority date is earlier than that of the applicant's claim; a. that the invention so far as claimed in any claim of the complete specification was publicly known or publicly used in India before the priority date of that claim. Explanation - For the purposes of this clause, an invention relating to a process for which a patent is claimed shall be deemed to have been publicly known or publicly used in India before the priority date of the claim if a product made by that process had already been imported into India before that date except where such importation has been for the purpose of reasonable trial or experiment only; b. that the invention so far as claimed in any claim of the complete specification is obvious and clearly does not involve any inventive step, having regard to the matter published as mentioned in clause (b) or having regard to what was used in India before the priority date of the applicant's claim; c. that the subject of any claim of the complete specification is not an invention within the meaning of this Act, or is not patentable under this Act; d. that the complete specification does not sufficiently and clearly describe the invention or the method by which it is to be performed; e. that the applicant has failed to disclose to the Controller the information required by Section 8 or has furnished the information which in any material particular was false to his knowledge; f. that in the case of a convention application, the application was not made within twelve months from the date of the first application for protection for the invention made in a convention country by the applicant or a person from whom he derives title; but on no other ground. (2) Where any such notice of opposition is duly given, the Controller shall notify the applicant and shall give to the applicant and the opponent an opportunity to be heard before deciding the case. (3) The grant of a patent shall not be refused on the ground stated in Clause (c) of Sub-section (1) if no patent has been granted in pursuance of the application mentioned in that clause; and for the purpose of any inquiry under clause (d) or clause (e) of that sub- section, no account shall be taken of any secret use. Section 116. Appeals (1) No appeal shall lie from any decision, order or correction made of issued under this Act by the Central Government, or from any act or order of the Controller for the purpose of giving effect to any such decision, order or direction. (2) Save as otherwise expressly provided in Sub-section (1), an appeal shall lie to a High Court from any decision, order or direction of the Controller under any of the following provisions, that is to say, Section 15, Section 16, Section17, Section 18, Section 19, Section 20, Section 25, Section 27, Section 28, Section 51, Section 54, Section 57, Section 60, Section 61, Section 63, Sub-section (3) of Section 69, Section 78, Section 84, Section 86, Section 88(3), Section 89, Section 93, Section 96 and Section 97.\" (3) Every appeal under this section shall be in writing and shall be made within three months from the date of the decision, order or direction, as the case may be, of the Controller, or within such further time as the High Court may in accordance with the rules made by it under Section 158 allow.\" (emphasis supplied by us) 8. Suffice it to note that under Patents (Amendment) Act, 1999 there was only one right given to a person interested to oppose the grant of patent by filing objections at the pre-grant stage. Under the said Amendment Act, 1999, as stated above, vide Section 116 (2) a right of appeal was available to the aggrieved party against orders passed under Section 25. The said appellate remedy was available by way of an appeal to the High Court. 9. In 2002, the Legislature desired an amendment to the law and intended to create an appellate forum to hear appeals against orders passed by the Controller consequently Patents (Amendment) Act, 2002 was promulgated on 25.6.2002. However, it was not brought into force immediately. It may be noted that in the said Amendment Act, 2002, no provision was made pertaining to \"post-grant opposition\". That provision came to be made only under the Patents (Amendment) Act, 2005 which was promulgated on 4.4.2005 w.e.f. 1.1.2005. 10. Vide Section 47 of the Patents (Amendment) Act, 2002 entire Chapter XIX stood substituted. Sections 116 and 117A were reworded which read as under: \"Section 116. (1) Subject to the provisions of this Act, the Appellate Board established under Section 83 of the Trade Marks Act, 1999 shall be the Appellate Board for the purposes of this Act and the said Appellate Board shall exercise the jurisdiction, power and authority conferred on it by or under this Act: Provided that the Technical Member of the Appellate Board for the purposes of this Act shall have the qualifications specified in Sub- section (2). (2) A person shall not be qualified for appointment as a Technical Member for the purposes of this Act unless he- (a) has, at least five years, hold the post of Controller under this Act or has exercised the functions of the Controller under this Act for at least five years; or (b) has, for at least ten years, functioned as a Registered Patent Agent and possesses a degree in engineering or technology or a masters degree in science from any University established under law for the time being in force or equivalent; or (c) has, for at least ten years, been an advocate of a proven specialized experience in practicing law relating to patents and designs. Section 117A. (1) Save as otherwise expressly provided in Sub- section (2), no appeal shall lie from any decision, order or direction made or issued under this Act by the Central Government, or from any act or order of the Controller for the purpose of giving effect to any such decision, order or direction. (2) An appeal shall lie to the Appellate Board from any decision, order or direction of the Controller or Central Government under Section 15, Section 16, Section 17, Section 18, Section 19, Section 20, Section 25, Section 27, Section 28, Section 51, Section 54, Section 57, Section 60, Section 61, Section 63, Section 66, Sub- section (3) of Section 69, Section 78, Sub-sections (1) to (5) of Section 84, Section 85, Section 88, Section 91, Section 92 and Section 94. (3) Every appeal under this section shall be in prescribed form and shall be verified in such manner as may be prescribed and shall be accompanied by a copy of the decision, order or direction appealed against any by such fees as may be prescribed. (4) Every appeal shall be made within three months from the date of the decision, order or direction, as the case may be, of the Controller or the Central Government or within such further time as the Appellate Board may, in accordance with the rules made by it, allow.\" (emphasis supplied by us) 11. The provisions of the said Amendment Act, 2002, however, were not simultaneously brought into force. Suffice it to note that Sections 116 and 117A were not brought into force. However, Section 25 was brought into force vide Notification dated 20.5.2003. Even as on 20.5.2003 vide Section 25 only one right to oppose a patent at the pre-grant stage was available and appeal against an order, passed by the earlier, lay before the High Court under the then existing Section 116 of the Patents Act, 1970 for the reason that the amended Sections 116 and 117A were not brought into force. 12. Without giving effect to the amendments to Sections 116 and 117A suggested by Section 47 of the Patents (Amendment) Act, 2002, on 4.4.2005 the Legislature enacted the Patents (Amendment) Act, 2005. Even here, not all provisions were simultaneously brought into force. Only certain sections of the Patents (Amendment) Act, 2005 were brought into force. 13. Vide Section 23 of the Patents (Amendment) Act, 2005, the then existing Section 25 was substituted. The substituted Section 25 reads as under: \"25. Opposition to the patent.- (1) Where an application for a patent has been published but a patent has not been granted, any person may, in writing, represent by way of opposition to the Controller against the grant of patent on the ground- (a) that the applicant for the patent or the person under or through whom he claims, wrongfully obtained the invention or any part thereof from him or from a person under or through whom he claims; (b) that the invention so far as claimed in any claim of the complete specification has been published before the priority date of the claim- (i) in any specification filed in pursuance of an application for a patent made in India on or after the 1st day of January, 1912; or (ii) in India or elsewhere, in any other document: Provided that the ground specified in Sub-clause (ii) shall not be available where such publication does not constitute an anticipation of the invention by virtue of Sub-section (2) or Sub-section (3) of Section 29; (c) that the invention so far as claimed in any claim of the complete specification is claimed in a claim of a complete specification published on or after the priority date of the applicant's claim and filed in pursuance of an application for a patent in India, being a claim of which the priority date is earlier than that of the applicant's claim; (d) that the invention so far as claimed in any claim of the complete specification was publicly known or publicly used in India before the priority date of that claim. Explanation.-For the purposes of this clause, an invention relating to a process for which a patent is claimed shall be deemed to have been publicly known or publicly used in India before the priority date of the claim if a product made by that process had already been imported into India before that date except where such importation has been for the purpose of reasonable trial or experiment only; (e) that the invention so far as claimed in any claim of the complete specification is obvious and clearly does not involve any inventive step, having regard to the matter published as mentioned in clause (b) or having regard to what was used in India before the priority date of the applicant's claim; (f) that the subject of any claim of the complete specification is not an invention within the meaning of this Act, or is not patentable under this Act; (g) that the complete specification does not sufficiently and clearly describe the invention or the method by which it is to be performed; (h) that the applicant has failed to disclose to the Controller the information required by Section 8 or has furnished the information which in any material particular was false to his knowledge; (i) that in the case of convention application, the application was not made within twelve months from the date of the first application for protection for the invention made in a convention country by the applicant or a person from whom he derives title; (j) that the complete specification does not disclose or wrongly mentions the source or geographical origin of biological material used for the invention; (k) that the invention so far as claimed in any claim of the complete specification is anticipated having regard to the knowledge, oral or otherwise, available within any local or indigenous community in India or elsewhere, but on no other ground and the Controller shall, if requested by such person for being heard, hear him and dispose of such representation in such manner and within such period as may be prescribed. (2) At any time after the grant of patent but before the expiry of a period of one year from the date of publication of grant of a patent, any person interested may give notice of opposition to the Controller in the prescribed manner on any of the following grounds, namely: (a) that the patentee or the person under or through whom he claims, wrongfully obtained the invention or any part thereof from him or from a person under or through whom he claims; (b) that the invention so far as claimed in any claim of the complete specification has been published before the priority date of the claim- (i) in any specification filed in pursuance of an application for a patent made in India on or after the 1st day of January, 1912; or (ii) in India or elsewhere, in any other document: Provided that the ground specified in Sub-clause (ii) shall not be available where such publication does not constitute an anticipation of the invention by virtue of Sub-section (2) or Sub-section (3) of Section 29; (c) that the invention so far as claimed in any claim of the complete specification is claimed in a claim of a complete specification published on or after the priority date of the claim of the patentee and filed in pursuance of an application for a patent in India, being a claim of which the priority date is earlier than that of the claim of the patentee; (d) that the invention so far as claimed in any claim of the complete specification was publicly known or publicly used in India before the priority date of that claim. Explanation.-For the purposes of this clause, an invention relating to a process for which a patent is granted shall be deemed to have been publicly known or publicly used in India before the priority date of the claim if a product made by that process had already been imported into India before that date except where such importation has been for the purpose of reasonable trial or experiment only; (e) that the invention so far as claimed in any claim of the complete specification is obvious and clearly does not involve any inventive step, having regard to the matter published as mentioned in clause (b) or having regard to what was used in India before the priority date of the claim; (f) that the subject of any claim of the complete specification is not an invention within the meaning of this Act, or is not patentable under this Act; (g) that the complete specification does not sufficiently and clearly describe the invention or the method by which it is to be performed; (h) that the patentee has failed to disclose to the Controller the information required by Section 8 or has furnished the information which in any material particular was false to his knowledge; (i) that in the case of a patent granted on convention application, the application for patent was not made within twelve months from the date of the first application for protection for the invention made in a convention country or in India by the patentee or a person from whom he derives title; (j) that the complete specification does not disclose or wrongly mentions the source and geographical origin of biological material used for the invention; (k) that the invention so far as claimed in any claim of the complete specification was anticipated having regard to the knowledge, oral or otherwise, available within any local or indigenous community in India or elsewhere, but on no other ground. (3) (a) Where any such notice of opposition is duly given under Sub-section (2), the Controller shall notify the patentee. (b) On receipt of such notice of opposition, the Controller shall, by order in writing, constitute a Board to be known as the Opposition Board consisting of such officers as he may determine and refer such notice of opposition along with the documents to that Board for examination and submission of its recommendations to the Controller. (c) Every Opposition Board constituted under clause (b) shall conduct the examination in accordance with such procedure as may be prescribed. (4) On receipt of the recommendation of the Opposition Board and after giving the patentee and the opponent an opportunity of being heard, the Controller shall order either to maintain or to amend or to revoke the patent. (5) While passing an order under Sub-section (4) in respect of the ground mentioned in clause (d) or clause (e) of Sub-section (2), the Controller shall not take into account any personal document or secret trial or secret use. (6) In case the Controller issues an order under Sub-section (4) that the patent shall be maintained subject to amendment of the specification or any other document, the patent shall stand amended accordingly.\" (emphasis supplied by us) 14. We also quote Section 61 of the Patents (Amendment) Act, 2005 which reads as under: \"Section 61. In Section 117A of the principal Act [as inserted by Section 47 of the Patents (Amendment) Act, 2002, in Sub-section (2), for the words and figures \"section 20, Section 25, Section 27, Section 28,\", the words, figures and brackets \"section 20, Sub- section (4) of Section 25, Section 28\" shall be substituted.\"* *(this section was not brought into force till 2.4.2007)\" (emphasis supplied by us) 15. In short, by the Patents (Amendment) Act, 2005, for the first time a dichotomy was introduced in the Patent Law between \"opposition to the pre-grant\" and \"opposition to the post-grant of patent\". This was the major structural change in the Patent Law. Similarly, under the Patents (Amendment) Act, 2005, appeal was restricted to the post-grant opposition orders and that appeal lay before the Appellate Board and not to the High Court. Here also, Section 25 of the Patents Act, 1970 as amended by Patents (Amendment) Act, 2005 (which refers to \"pre-grant opposition\" and \"post-grant opposition\") was brought into force on and from 1.1.2005 whereas amended Section 117A by which appeal was provided for against post-grant opposition order was not brought into force till 2.4.2007. One more aspect needs to be mentioned. As stated, vide Patents (Amendment) Act, 2005, a dichotomy was brought in between pre-grant and post-grant opposition orders w.e.f. 1.1.2005. But when it came to filing of first appeal for some unknown reasons, the amended Section 117A (which provided for only one statutory appeal and that too against post-grant orders passed by the Controller) was not brought into force. The result is that although the Legislature intended to provide for only one statutory appeal to the Appellate Board, by reason of Section 61 of the Patents (Amendment) Act, 2005 not being brought into force till 2.4.07 a strange situation developed. The Legislature intended to provide for only one statutory appeal to the Appellate Board but by not bringing Section 61 into force till 2.4.07, appeals filed during the interregnum, as in this case, became vulnerable and liable to be dismissed as misconceived as is contended by the appellant. This is the controversy which needs to be resolved in this case. 16. On 19.10.2006 when FAO No.293/06 was filed in the High Court, Chapter XIX of the parent Act as amended vide Patents (Amendment) Act, 1999 continued to be in operation notwithstanding the enactment of the Patents (Amendment) Act, 2002 and the Patents (Amendment) Act, 2005 as the amended Sections 116 and 117A were brought into force only vide Notification dated 2.4.07. One more point needs to be noted. Section 117G of the principal Act was substituted vide Patents (Amendment) Act, 2005. It reads as under: \"Section 117G. Transfer of pending proceedings to Appellate Board.- All cases of appeals against any order or decision of the Controller and all cases pertaining to revocation of patent other than on a counter-claim in a suit for infringement and rectification of register pending before any High Court, shall be transferred to the Appellate Board from such date as may be notified by the Central Government in the Official Gazette and the Appellate Board may proceed with the matter either de novo or from the stage it was so transferred.\" 17. On reading amended Section 117G it becomes clear that all appeals against any order or decision of the Controller had to be transferred to the Appellate Board from such date as may be notified by the Central Government in the Official Gazette. This amended Section 117G was also brought into force vide Notification dated 3.4.2007. Under Notes on Clauses attached to the Statement of Objects and Reasons, it has been clarified, vide clause 62, that amended Section 117G is consequential to the enforcement of the jurisdiction of the Appellate Board under Section 64 which results to revocation of patent. Vide clause 47 of Notes on Clauses attached to the Statement of Objects and Reasons, it has been clarified that Section 64 is also amended vide Patents (Amendment) Act, 2005 to confer wider jurisdiction on the Appellate Board in matters of revocation of patent, therefore, amended Section 117G which is brought into force only from 3.4.2007 dealt with transfer of pending proceedings from the High Court to the Appellate Board. 18. The question which arises for determination in this batch of civil appeals is : whether FAO No.292/06 and FAO No.293/06 filed by respondent no.3 herein in the High Court were liable to be dismissed. According to the appellant, with the change in Section 25 brought about by Patents (Amendment) Act, 2005, a dichotomy was introduced in the Patents Act, 1970. According to the appellant, that dichotomy was between \"pre-grant opposition\" and \"post-grant opposition\". According to the appellant, this was a structural change in the principal Act. According to the appellant, on 23.8.06 the Controller rejected its \"pre-grant opposition\" and on that day \"post-grant opposition\" avenue was open to respondent no.3 vide Section 25(2). According to the appellant, under the amended Section 25 on rejection of \"pre- grant opposition\" it was open to respondent no.3 to move an application opposing grant of patent under Section 25(2). The patent was granted to the appellant on 22.9.06. According to the appellant, it was open to respondent no.3 to challenge the grant of patent by making \"post-grant opposition\" under Section 25(2) from which an appeal was maintainable to the Appellate Board. This was not done. Further, according to the appellant, \"pre-grant opposition\" was filed by respondent no.3 under Section 25(1) on 21.3.05. According to the appellant, though the Patents (Amendment) Act, 2005, amended Section 25 by enacting the amendment on 4.4.05 the said amendment was brought into force w.e.f. 1.1.2005 and, therefore, it was open to respondent no.3 to challenge the grant of patent by invoking Section 25(2) of the Patents Act, 1970. According to the appellant, with the change in the structure of the Act providing for only one statutory appeal and that too only against the order granting patent under Section 25(4), the appeal filed by respondent no.3 against pre- grant opposition order was not maintainable on 19.10.06 by which time, as stated above, Section 25 stood restructured providing for a dichotomy between \"pre-grant opposition\" and \"post-grant opposition\". 19. On the other hand, on behalf of respondent no.3, it has been urged that on 19.10.06 it had filed an appeal in the High Court under unamended Section 116 of the parent Act; that, even though Section 25 stood restructured w.e.f. 1.1.05 on account of absence of notification bringing the amended law into force, Sections 116 and 117A (as amended) providing appeal to the Appellate Board came into force only with effect from 2.4.07 and, therefore, according to the said respondent, its first appeal being FAO No.293/06 continued to be governed by the law as it stood on 19.10.06 (on which date appeal to the High Court was maintainable); that, on 23.8.06 the \"pre- grant opposition\", filed by respondent no.3, stood rejected, however, on that date appeal against pre-grant opposition order was maintainable, under Section 116, to the High Court and, therefore, there is no merit in the argument advanced on behalf of the appellant that the first appeal filed by respondent no.3 was misconceived; that, it is true that Section 25 got restructured w.e.f. 1.1.2005, however, such restructuring did not obliterate the first appeal filed by respondent no.3 on 19.10.2006; and lastly it was argued on behalf respondent no.3 that the appellant had filed its application for grant of patent on 14.6.2000, it was notified on 20.11.04, however, respondent no.3 had filed its \"pre-grant opposition\" under Section 25(1) on 21.3.05 when the Patents (Amendment) Act, 2005 was not promulgated (it was promulgated on 4.4.05) and, therefore, according to respondent no.3 its \"pre-grant opposition\" filed on 21.3.05 was valid and proper as respondent no.3 could not have invoked Section 25(2) proceedings on that day, namely, 21.3.05 as the law stood enacted bringing in Section 25(2) only on 4.4.05. In the peculiar circumstances of this case it was urged on behalf of respondent no.3 that no interference is called for by this Court in this batch of civil appeals. 20. As stated above, quite often the commencement of an Act is postponed to some specific future date or to such date as the Appropriate Government may, by notification in the Official Gazette, appoint. At times provision is made for appointment of different dates for coming into force of different parts of the same Act. 21. An Act cannot be said to commence or to be in force unless it is brought into operation by legislative enactment or by the exercise of authority by a delegate empowered to bring it into operation. 22. Applying the above tests to the present case, we find that by Patents (Amendment) Act, 2005 for the first time a dichotomy was inserted in the Patent Law by providing vide Section 25(1) for \"opposition to pre-grant\" and vide Section 25 (2) for \"opposition to post-grant\" of patent. By reason of Patents (Amendment) Act, 2005, the kind of opposition available under the said 1970 Act is different from what existed earlier. Previously, there was no \"post-grant opposition\". Previously, the only provision of challenge by an interested party was a \"pre-grant\" challenge under Section 25 (1) as it then stood. Therefore, the Courts had evolved the `rule of caution' as the patent had not faced any challenge at the hands of interested parties. There is, however, a radical shift due to incorporation of Section 25(2) where an interested party is granted the right to challenge the patent after its grant. The ground of challenge under Section 25(1) is identical to Section 25(2) of the said 1970 Act. However, Section 25(1) is wider than Section 25(2) as the latter is available only to a \"person aggrieved\". The main difference between Section 25(1) and Section 25(2), as brought about by Patents (Amendment) Act, 2005, is that even after a patent is granted, \"post-grant opposition\" can be filed under Section 25 (2) for a period of one year. The reason is obvious. In relation to patents that are of recent origin, a higher scrutiny is necessary. This is the main rationale underlying Section 25(2) of the said 1970 Act. Therefore, the Legislature intended an appeal under Section 117A(2) to the Appellate Board from any decision, order or direction of the Controller, inter alia, under Section 25(4) [which refers to the power of the Controller to maintain, amend or revoke the patent]. 23. In the present case, the Legislature intended to provide for two types of scrutiny followed by one statutory appeal to the Appellate Board against \"post-grant proceedings\". The Legislature intended to have a dichotomy between \"pre-grant opposition\" and \"post-grant opposition\". However, the Legislature intended that there shall be only one statutory appeal against grant of patent. The Legislature intended to obliterate appeal from \"pre-grant proceedings\", which existed earlier. However, it was left to the Executive to bring the enacted law into force vide notification. For some unknown reasons, the amended Sections 116 and 117A(2) were not brought into force till 2.4.07 whereas the concept of \"pre- grant\" and \"post-grant\" oppositions were brought into force w.e.f.1.1.2005. This is where the legislative intent got defeated during the interregnum. It is during this interregnum that respondent no.3 filed its FAO No.293/06 in the High Court under Section 116, as it stood on 19.10.06 under the Patents (Amendment) Act, 1999. On that date, the amended Section 117A, suggested by Patents (Amendment) Act, 2005, was not brought into force. On 19.10.06 the old law prevailed under which an appeal lay before the High Court. Respondent no.3, in both the cases, preferred first appeals to the High Court under Section 116 as it then stood. They are FAO No.292/06 and FAO No.293/06. We have to decide the fate of these pending appeals. One more aspect needs to be mentioned. Under the Patents (Amendment) Act, 2005, appeal is provided to the Appellate Board against the order of the Controller under Section 25(4). However, that statutory appeal is maintainable only in \"post-grant opposition\" proceedings whereas respondent no.3 herein has instituted first appeals under the law then prevailing, challenging the Order rejecting \"pre-grant opposition\" dated 23.8.06. 24. Taking into account the complexities involved in this case, on account of a hiatus created by reason of the law not being brought into force in time, we are of the view that the first appeals, filed by respondent no.3 in the High Court being FAO No.292/06 and FAO No.293/06, would remain in the High Court. The said appeals would be heard and disposed of by the High Court in accordance with law under Section 116 of the said 1970 Act as it stood on 19.10.06. The High Court will hear and decide the validity of the Order passed by the Controller dated 23.8.06 rejecting \"pre-grant opposition\" filed by respondent no.3. We are informed that there are hardly one or two matters of this nature which are pending. Therefore, we are of the view that respondent no.3 cannot be let without remedy. In the special circumstances of this case, particularly when after 2.4.07 appeals against orders rejecting \"pre-grant opposition\" are not maintainable and particularly when FAO No.292/06 and FAO No.293/06 were filed by respondent no.3 prior to 2.4.07 under the old law, we are of the view that these two appeals shall be heard and decided by the High Court in accordance with law. The Appellate Board after 2.4.07 is entitled to hear appeals only arising from orders passed by the Controller under Section 25(4), i.e., in cases of orders passed in \"post-grant opposition\". Therefore, there is no point in transferring the pending FAO No.292/06 and FAO No.293/06 to the Appellate Board which has no authority to decide matters concerning \"pre-grant opposition\". Moreover, it may be noted that even Section 117G, which refers to transfer of pending proceedings to the Appellate Board, is also brought into force vide Notification dated 3.4.07. Keeping in mind the peculiar nature of the problem in hand, we are of the view that ends of justice would be subserved if the High Court is directed to hear and decide the appeals bearing FAO No.292/06 and FAO No.293/06 in accordance with law as it then stood, i.e., under Section 116 under Patents (Amendment) Act, 1999 against Orders passed by the Controller in \"pre-grant opposition\" proceedings. 25. Accordingly, the two Civil Appeals, filed by the appellant herein, stand disposed of with no order as to costs. .................................J. (S.H. Kapadia) .................................J. (B. Sudershan Reddy) New Delhi; August 21, 2008.",
        "95311661": "REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION IN TRANSFER PETITION (CRL.) NO. 262 of 2018 SWAATI NIRKHI & ORS. \u2026PETITIONERS Versus STATE (NCT OF DELHI) & ORS. \u2026RESPONDENTS J U D G M E N T INDU MALHOTRA, J. 1. The present Transfer Petition has been filed by the Petitioner under Section 406 Cr.P.C. seeking transfer of Criminal Case No. 3483 of 2017 titled as State v. Swaati Nirkhi & Ors. (arising out of FIR No. 39/2016) from the Court of Metropolitan Magistrate 461 North West, Rohini Courts, New Delhi to the Court Signature Not Verified Digitally signed by of Metropolitan Magistrate at Allahabad (Prayagraj), Uttar Nidhi Ahuja Date: 2021.03.09 15:38:23 IST Reason: Pradesh. 2. The Respondent No.4 herein/Complainant filed FIR No. 39 on 7.1.2016 before the Police Station, Mangol Puri under Section 389 read with 34 IPC against 4 accused viz. Mr. Mohan Shrivastava, Ms. Swaati Saxena, Sanjay Saxena, Shashank Saxena wherein it was stated that his nephew Ashish Khare was married to Ms. Swaati Nirkhi (Petitioner No.1 in the Transfer Petition) on 19th April 2015 in Delhi. That on 7.8.2015, Swaati Nirkhi left for her parental home in Allahabad, and did not return thereafter, even though she was requested to come back by the family. On 25.11.2015, the Complainant received a message from one Mohan Srivastava alias Akahauri Onkar Nath (Respondent No.2 in the T.P) that Ms. Swaati Nirkhi would not like to come back to Delhi, and the matter could be settled by paying Rs. 5 crores. On 25.11.2015, 3 persons visited the house of the Complainant, and left a message with his driver and domestic help that the Complainant must pay Rs. 5 Crore to Mohan Srivastava. On 6.12.2015, the Complainant stated that it was learnt from the newspaper reports and T.V. media report that Ms. Swaati Nirkhi had falsely alleged that she was gang raped on 4.11.2015 at 9 p.m. in the house of the Respondent No.4, by Respondent No.4 and his nephews- Abhishek and Ashish, with the assistance of his wife- Smt. Heema Khare. It was also stated that he had received messages to pay Rs. 5 Crore otherwise he would be arrested on the ground of gang rape. On 7.1.2016, at 11.13 a.m. he received a call from a person who identified himself as Mohan Srivastava to pay payment of Rs. 5 crore urgently. The 1st instalment could be paid to Swaati Nirkhi, Shashank Saxena and Sanjay Saxena at Delhi in 2 days of Rs. 2.5 Crore. The Complainant has submitted that he was warned not to get in touch with the police, otherwise he would be required to face dire consequences. The complainant stated that he had kept the SHO informed of the subject matter since 10.12.2015 through his Complaints. He stated that his driver Sushil Kumar had informed him of the plan of Mohan Srivastava, Swaati Nirkhi, Sanjay Saxena and Shashank Saxena to get the entire family arrested, and then occupy his property worth 10 to 15 crore. It was further alleged that the Accused had sought to allure the driver of Respondent No.4 by offering a flat to him. It was requested that a criminal case be registered against Mr. Mohan Srivastava, Ms. Swaati Nirkhi, Mr. Sanjay Saxena and Shashank Saxena. 3. Pursuant to the registration of the FIR, a Charge Sheet was filed on 29.6.2017 in the Court of Metropolitan Magistrate, Rohini Court, Delhi against Accused No.1- Swaati Nirkhi, Accused No.2- Sanjay Saxena, Accused No.3- Shashank Saxena, Accused No.4- Mohan Srivastava @Akahauri Onkar Nath, and Accused No.5- Jugal Kishore Yadav under Section 389,419,506,120B and 34 IPC. A list of 23 witnesses was mentioned in the Charge Sheet, out of which 16 were official witnesses, and 7 were non- official witnesses. 4. On 28.11.2017, the Metropolitan Magistrate, 461, Rohini Court, Delhi took cognisance, and issued summons to the Accused persons. 5. In the meanwhile, the Accused Ms. Swaati Nirkhi, Mr. Sanjay Saxena and Shashank Saxena filed the present Transfer Petition (Crl.) No.262 of 2018 before this Court, praying that the trial of Criminal No. 3483 of 2017 titled as State v. Swaati Nirkhi and Ors. arising out of FIR No. 39/2016 pending before the Court of the Metropolitan Magistrate, North West, Rohini Courts, New Delhi be transferred to the Ld. Metropolitan Magistrate at Allahabad (Prayagraj) U.P. 6. This Court vide ex-parte Order dated 18.5.2018 allowed the Transfer Petition and directed that the criminal proceedings in the afore-mentioned case shall stand transferred to the Court of Metropolitan Magistrate at Allahabad, U.P from the Court of Metropolitan Magistrate, 461, Rohini Court, Delhi. Since the Order was being passed ex-parte, it was left open to the Respondents to approach this Court, if they were aggrieved by the same. 7. The Complainant in the FIR i.e. Respondent No.4 in the Transfer Petition filed M.A. No. 1589 of 2018 praying for recall of the Order dated. 18.5.2018 passed by this Court in T.P. No (Crl.) 262 of 2018. The said M.A was dismissed vide Order dated. 5.6.2018. 8. The Respondent No.4 then filed Review Petition (Crl.) No. 671 of 2018 praying for Review of the Orders dated 18.5.2018 and 5.6.2018 passed by this Court. This Court issued Notice in the Review Petition vide Order dated 24.10.2018, and ordered hearing in open Court. 9. After hearing the parties at length, this Court vide detailed Judgment dated 28.1.2021 allowed the Review Petition, and recalled the Order dated 18.5.2018. It was directed that the Review Petitioner/ Complainant be impleaded as Respondent No.4 in the Transfer Petition. The Transfer Petition was then taken up for de novo hearing. 10. We have heard the Counsel for the parties at length, and perused the affidavits filed. The Petitioners have inter alia submitted that the Transfer Petition ought to be allowed since there are 9 cases pending between the parties in Allahabad, out of which 6 cases have been filed by the Respondent No.4, and 3 cases have been filed by the Petitioner No.1. Since the Respondent No.4 was prosecuting the 6 cases filed by him in Allahabad, and that no inconvenience would be caused if the proceedings arising out of the FIR in the present case, were tried by the Court of the Metropolitan Magistrate at Allahabad. It was further submitted that if the Petitioners were compelled to defend themselves in the proceedings at Delhi, it would be financially burdensome on them. However, while the Complainant and his family members who are a well to do family, would not be subject to any hardship or inconvenience. It was further submitted that the Petitioner No.1, due to the physical and mental assault and harassment suffered by her, was not able to work and earn her livelihood. Furthermore, her father i.e. Petitioner No.2 is a senior citizen suffering from various ailments and diseases. In these circumstances it was pleaded that the proceedings in the criminal case may not be transferred back from Allahabad to Delhi. 11. Respondent No.2 who has been named as co-accused in the FIR, has supported the case of the Petitioners. It has been submitted that he is discharging a public function as Deputy Mayor in Gaya, Bihar. It would be inconvenient for him to undertake such a long journey from Gaya to Delhi, as it would impinge on his time to discharge his public functions. 12. Respondent No.3 has submitted that he was not named in the FIR, but was added in the Charge Sheet as an accused on the basis of hearsay evidence. The prosecution of the case in Allahabad would be convenient for him to defend the baseless allegations made by Respondent No.4 against him. 13. The Transfer Petition was seriously opposed by Respondent No.4 on the ground that the allegations mentioned in the present FIR related to incidents which had occurred in New Delhi. Since no cause of action had taken place in Allahabad, the proceedings must be tried by the Court of competent jurisdiction in New Delhi. It was further submitted that out of the 23 witnesses, 12 official witnesses are situated in New Delhi. If the case is transferred out of Delhi, it would impinge upon their official work, since they would be required to travel to Allahabad in these proceedings. With respect to the cases filed by the present Petitioner in Allahabad, no incriminating material has been found against the Respondent No.4 in the FIRs instituted in State of U.P., even after being investigated several times by the Allahabad Police, Crime Branch Allahabad, and DSP Level Gazetted Lady Police Officer. It was further submitted that the Petitioner No.1 herself had instituted 13 cases in Courts in Delhi, Allahabad and before this Court, which she has prosecuted without expressing any difficulty, and there is no reason why an exception should be made in the present case. It was further submitted that the Petitioners in the T.P have not appeared before the Metropolitan Magistrate, Allahabad in 36 hearings from 9.7.2018 to 7.12.2020, even after the case was transferred to Allahabad (Prayagraj). The Transfer Petition was only a ruse to stall the proceedings in the present case. 14. In a criminal case, the place of inquiry and trial has to be by the Court within whose local jurisdiction, the crime was allegedly committed as provided by Section 177 of Cr.P.C. \u201c177. Ordinary place of inquiry and trial. Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed.\u201d 15. The cause of action as per the averments in the FIR are alleged to have arisen in New Delhi, where the matrimonial home of the Petitioner is situated. This court has consistently held that a criminal case ought to be inquired and tried ordinarily where the cause of action has accrued1. Ramesh v. State of T.N., (2005) 3 SCC 507, Manish Ratan v. State of M.P (2007) 1 SCC 262 Bhura Ram v. State of Rajasthan, (2008) 11 SCC 103 Rajiv Modi v. Sanjay Jain, (2009) 13 SCC 241 Sunita Kumari Kashyap v. State of Bihar, (2011) 11 SCC 301 Amarendu Jyoti vs. State of Chattisgarh (2014) 12 SCC 362 Babita Lila and Ors. vs. Union of India (UOI) (2016) 9 SCC 647 Rupali Devi vs. State of Uttar Pradesh and Ors. (2019) 5 SCC 384 Rhea Chakraborty vs. State of Bihar and Ors. 2020 SCC OnLine SC 654 In Abraham Ajith v. Inspector of Police2, this Court held that : \u201c12. The crucial question is whether any part of the cause of action arose within the jurisdiction of the court concerned. In terms of Section 177 of the Code, it is the place where the offence was committed. In essence it is the cause of action for initiation of the proceedings against the accused. 13. While in civil cases, normally the expression \u201ccause of action\u201d is used, in criminal cases as stated in Section 177 of the Code, reference is to the local jurisdiction where the offence is committed. These variations in etymological expression do not really make the position different. The expression \u201ccause of action\u201d is, therefore, not a stranger to criminal cases. 14. It is settled law that cause of action consists of a bundle of facts, which give cause to enforce the legal inquiry for redress in a court of law. In other words, it is a bundle of facts, which taken with the law applicable to them, gives the allegedly affected party a right to claim relief against the opponent. It must include some act done by the latter since in the absence of such an act no cause of action would possibly accrue or would arise. 15. The expression \u201ccause of action\u201d has acquired a judicially settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the proceeding including not only the alleged infraction, but also the infraction coupled with the right itself. Compendiously, the expression means every fact, which it would be necessary for the complainant to prove, if traversed, in order to support his right or grievance to the judgment of the court. Every fact, which is necessary to be proved, as distinguished from every piece of evidence, which is necessary to prove such fact, comprises in \u201ccause of action\u201d. (2004) 8 SCC 100 16. The expression \u201ccause of action\u201d has sometimes been employed to convey the restricted idea of facts or circumstances which constitute either the infringement or the basis of a right and no more. In a wider and more comprehensive sense, it has been used to denote the whole bundle of material facts. 17. The expression \u201ccause of action\u201d is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a court or a tribunal; a group of operative facts giving rise to one or more bases for sitting; a factual situation that entitles one person to obtain a remedy in court from another person. In Black's Law Dictionary a \u201ccause of action\u201d is stated to be the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact, which, if traversed, the plaintiff must prove in order to obtain judgment. In Words and Phrases (4th Edn.), the meaning attributed to the phrase \u201ccause of action\u201d in common legal parlance is existence of those facts, which give a party a right to judicial interference on his behalf. 18. In Halsbury's Laws of England (4th Edn.) it has been stated as follows: \u201c \u2018Cause of action\u2019 has been defined as meaning simply a factual situation, the existence of which entitles one person to obtain from the court a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. \u2018Cause of action\u2019 has also been taken to mean that a particular act on the part of the defendant which gives the plaintiff his cause of complaint, or the subject-matter of grievance founding the action, not merely the technical cause of action.\u201d 16. In the present case, we find that most of the prosecution witnesses are situated in Delhi. That 12 official witnesses are serving in New Delhi. If the Transfer Petition is allowed, they would be required to travel from New Delhi to Allahabad (Prayagraj), which would cause hinderance in performing their official duties. 17. The alleged apprehension of the Petitioners and Respondent No.2 and 3 do not constitute any exceptional circumstances for transferring the criminal case from Delhi to Allahabad (Prayagraj). A three judge bench of this Court in Harita Sunil Parab v. State (NCT of Delhi)3, held that : \u201c8. The apprehension of not getting a fair and impartial enquiry or trial is required to be reasonable and not imaginary, based upon conjectures and surmises. No universal or hard-and-fast rule can be prescribed for deciding a transfer petition, which will always have to be decided on the facts of each case. Convenience of a party may be one of the relevant considerations but cannot override all other considerations such as the availability of witnesses exclusively at the original place, making it virtually impossible to continue with the trial at the place of transfer, and progress of which would naturally be impeded for that reason at the transferred place of trial. The convenience of the parties does not mean the convenience of the petitioner alone who approaches the court on misconceived notions of (2018) 6 SCC 358 apprehension. Convenience for the purposes of transfer means the convenience of the prosecution, other accused, the witnesses and the larger interest of the society. The charge-sheet in FIR No. 351 of 2016 reveals that of the 40 witnesses, the petitioner alone is from Mumbai, two are from Ghaziabad, and one is from Noida. The charge-sheet of FIR No. 1742 of 2016 is not on record. A reasonable presumption can be drawn that the position would be similar in the same also. 9. In Mrudul M. Damle v. CBI [Mrudul M. Damle v. CBI4 , it was noticed that early conclusion of the trial becomes much more difficult involving more expenses for the prosecution by it having to bear travelling expenses of official and non-official witnesses and all of which ultimately causes the trial to linger on for years.\u201d 18. The counsel for the Petitioner at the conclusion of hearing in the present transfer petition made a prayer for continuation of Interim Bail from arrest, which was granted by the High Court of Allahabad pursuant to the Order passed in the Transfer Petition. It would be open for the Petitioner to move the appropriate Court in New Delhi for interim relief after the proceedings are transferred. 19. In view of the discussion above, the Transfer Petition is dismissed. (2012) 5 SCC 706 The proceedings arising out of FIR No. 39 of 2016 which were transferred to the Court of Metropolitan Magistrate at Allahabad (Prayagraj), Uttar Pradesh are directed to be transferred back to the Court of Metropolitan Magistrate 461 North West, Rohini Courts, New Delhi. 20. The Registry is directed to transmit a copy of this Order to the Courts of the Metropolitan Magistrate at Allahabad (Prayagraj), Uttar Pradesh and the Metropolitan Magistrate 461 North West, Rohini Courts, New Delhi. Parties are directed to appear before Court of Metropolitan Magistrate 461 North West, Rohini Courts, New Delhi on 15th April, 2021. There will be no Order as to costs. Pending Applications, if any, are accordingly disposed of. ......................................................J. (ASHOK BHUSHAN) ......................................................J. (INDU MALHOTRA) NEW DELHI; MARCH 09, 2021",
        "808484": "CASE NO.: Appeal (civil) 667-671 of 2004 PETITIONER: Ashwin S. Mehta and Anr. RESPONDENT: Custodian and Ors. DATE OF JUDGMENT: 03/01/2006 BENCH: S.B. Sinha & P.P. Naolekar JUDGMENT: J U D G M E N T WITH CIVIL APPEAL NOS. 672-675, 676-680 AND 681 OF 2004 S.B. SINHA, J : These appeals are directed against a judgment and order dated 17.10.2003 passed by the Special Court constituted under the Special Courts (Trial of Offences Relating to Transactions in Securities) Act, 1992 (for short \"the Act\") in Misc. Application Nos. 41 of 1999, 4 of 2001, 265, 266 and 275 of 2003. BACKGROUND FACTS The Appellants herein who are related to one Harshad S. Mehta (since deceased) purchased nine residential flats in a building called Madhuli Apartments in Worli area of Mumbai. The family of the Appellants consists of four brothers, their wives, children and their widowed mother. The eldest among them, Harshad S. Mehta, has since expired. The said nine flats, it is said, were merged and redesigned for joint living of the entire family. The Appellants herein and the said late Harshad Mehta were persons notified in terms of the Act which was enacted to provide for the establishment of a Special Court for the trial of offences relating to transactions in securities and for matters connected therewith. In terms of the provisions of the Act, along with late Harshad Mehta, the Custodian had notified 29 entities in terms of Section 3 of the Act, comprising three of his younger brothers, wife of late Harshad Mehta, wives of two of his younger brothers and other corporate entities, a partnership firm and three HUFs. However, out of the said 29 entitles, only Late Harshad Mehta and two of his younger brothers were cited as accused in various criminal cases filed against them. The properties of Late Harshad Mehta and the Appellants, herein being notified persons stood attached in terms of the provisions of the Act. PROCEEDINGS BEFORE THE SPECIAL COURT Before the learned Special Court, the parties herein filed several applications which can be sub-divided in three categories, as would be noticed shortly hereinafter. It is not in dispute that the learned Special Court on or about 3.08.1993 issued directions in various proceedings before it appointing auditors to prepare and audit the books of accounts of all notified persons for the period 1.4.1990 and 8.06.1992, i.e., the date of the notification. Three firms of Chartered Accountants were appointed to prepare statement of accounts and liabilities of each of the Appellants, herein. A Chartered Accountants' Firm was appointed by the learned Special Judge by an order dated 17.9.2003 to represent all notified entities in the family of late Harshad Mehta for the purpose of ascertaining their tax liabilities. We may, at this juncture, notice the nature of the applications filed by the parties, herein before the learned Special Court: (i) On 26.04.1999, the Custodian filed an application being Misc. Application No. 41 of 1999 seeking permission of the Special Court for sale of residential premises commonly known as Madhuli of eight notified entities. (ii) A Misc. Application being 4 of 2001 was filed by the Custodian praying for the sale of commercial premises. (iii) The Appellants herein filed several Misc. Applications praying for lifting of attachment on their residential premises on the ground that the same had been purchased much prior to 1.4.1991 and the same had no nexus with any illegal transactions in securities. Alternatively, it was prayed that since their asset base was greater than genuine liabilities, the said residential premises should be released from attachment. IMPUGNED JUDGMENT By reason of the impugned order dated 17.10.2003, the learned Special Judge allowed Misc. Applications Nos. 4 of 2001 and 41 of 1999. The Misc. Applications filed by the Appellants herein for release of the residential flats as well as the commercial premises from attachment were dismissed. It was directed: \"In case, all adult members of the family of late Shri Harshad Metha, who are presently occupying the abovereferred flats, file an undertaking in this Court within a period of four weeks from today undertaking to vacate the flat occupied by them and hand over peaceful possession thereof to the custodian within a period of four weeks from the date on which the custodian sends them communication asking them to vacate the flats, on sale of the flats being sanctioned by the Court. The custodian shall permit the members of family of late Shri Harshad Mehta to occupy the flats during the time that the process of the sale of the flats goes on. In case no such undertakings are filed by the adult members as directed above, within the aforesaid period, the custodian shall stand appointed as receiver of the flats which are described in Exh. 8 and Exh. 8-1 to Misc. Petition No. 41 of 1999.\" CONTENTIONS OF THE PARTIES Appellants Mr. Mahesh Jethmalani, learned senior counsel appearing on behalf of the Appellants in assailing the said judgment of the learned Special Court inter alia raised the following contentions: (i) Some of the entities having their asset base much more than actual liability, the impugned judgments are unsustainable. There was no occasion for the Custodian to club all the notified entities in one block so as to be termed as Harshad Mehta Group and/or to club their assets and liabilities jointly. Although in relation to a body corporate incorporated and registered under the Indian Companies Act, the doctrine of lifting the corporate veil would be applicable, but the same cannot be applied in case of individuals. (ii) Having regard to the fact that only three entitles out of eight were involved in the offences, the liability of Harshad Mehta could not have been clubbed for the purpose of directing attachment and consequent sale of the properties which exclusively belong to them. (iii) The liabilities of Harshad Mehta, who was a sui generis, could have been recovered from the properties held and possessed by him or from the companies floated by him but not from the individual entities; at least two of whom being medical practitioners have their income from other sources. (iv) The books of accounts and other documents on the basis whereof the auditor's report had been made having not been allowed to be inspected by the Appellants herein on the plea that they had the knowledge thereabout, the same could not have been taken into consideration for the purpose of passing of the impugned order or otherwise. (v) The Appellants having preferred appeals against the income tax orders of assessment passed by the authority and the same having been set aside, no liability to pay income tax by the Appellants as of now being existing, the residential properties could not have been sold. (vi) Drawing our attention to a representative chart showing the discrepancies in the accounts of Mrs. Deepika A. Mehta as shown in (a) affidavit by the Custodian; (b) Books of Accounts maintained by the Appellants; and (c) Auditor's Report, it was submitted that the Auditor's Report could not have been relied upon. (vii) A copy of the Auditor's Report having only been supplied during pendency of these appeals, the learned Special Judge committed a serious error in passing the impugned judgment relying on or on the basis thereof. Respondents Mr. Ashok H. Desai, learned senior counsel appearing on behalf of the Custodian, on the other hand, would, inter alia, submit: (i) In view of the decision of this Court in L.S. Synthetics Ltd. v. Fairgrowth Financial Services Ltd. and Another [(2004) 11 SCC 456] all properties belonging to the notified persons being subject to automatic attachment, could be applied for discharge of the joint liabilities of the Harshad Mehta Group in terms of Section 11 of the Act. (ii) The applications for de-notification filed by the Appellants herein having been withdrawn, the contention raised by the Appellants that they are not liable in terms of the provisions of the Act are not open to question, particularly, in view of the fact that no application for de- notification could be filed subsequently as they had become barred by limitation. (iii) The order of assessment under the Income Tax Act having become final and binding as on the date when the orders of assessment were passed and, thus, mere filing of appeals, were not sufficient for raising a contention that the taxes did not become due. Reliance in this behalf has been placed on B.C. Dalal v. Custodian [Civil Appeal No. 2795 of 2004] and The Kedarnath Jute Mfg. Co. Ltd. v. The Commissioner of Income Tax, (Central), Calcutta [(1972) 3 SCC 252]. (iv) The Appellants herein, apart from the corporate entity which is a front company of late Harshad Mehta, have received large loans, advances and credits from the Harshad Mehta Group and there had been intermingling of the assets to the tune of crores of rupees, they cannot escape their liabilities under the Act. The affidavit filed by the Appellants herein before the Special Court clearly shows that the liabilities exceed the assets in all cases. Even in the case of Dr. Pratima Mehta wherein some excesses has been shown, if the interest is calculated for the last over 13 years of the amount received, the liabilities would exceed the assets. (v) The assets and liabilities of each of the entities having been audited by the Chartered Accountants, it is evident from the reports that in all cases liabilities exceed the assets. (vi) The decretal amount against the Harshad Mehta Group also would exceed Rs. 4339 crores and, thus, the assets held by the Appellants are wholly insufficient to meet the liabilities. (vii) Furthermore, the Appellants are also unable to maintain their residential properties as the Custodian had to pay a sum of Rs. 1.06 crores towards the maintenance of the said residential properties. The assets of the Harshad Mehta Group are valued at Rs. 972 crores apart from the income tax dues whereas the aggregate amount of income tax dues exceed Rs. 13,800 crores. (viii) Dr. Hitesh Mehta and Dr. Pratima Mehta who are medical practitioners by profession having affirmed affidavits admitting that the share broking and investment businesses which were part of family businesses were undertaken and conducted by late Harshad Mehta and they had no knowledge thereabout nor were they involved therewith, they at this stage cannot be permitted to turn round and contend that they have nothing to do with the liabilities of Late Harshad Mehta. (ix) The sale of commercial property had never been seriously contested by the Appellants and in fact the contention of the Appellants herein before the Special Court was that if the commercial properties were sold, there would be no need to sell the residential properties. Even before this Court, the sale of commercial properties had not been questioned. A large number of commercial properties having already been sold and third party rights having been created, this Court should not interfere with the impugned judgment. THE ACT The Statement of Objects and Reasons for enacting the Act reads as under: \"(1) In the course of the investigations by the Reserve Bank of India, large scale irregularities and malpractices were noticed in transactions in both the Government and other securities, indulged in by some brokers in collusion with the employees of various banks and financial institutions. The said irregularities and malpractices led to the diversion of funds from banks and financial institutions to the individual accounts of certain brokers. (2) To deal with the situation and in particular to ensure speedy recovery of the huge amount involved, to punish the guilty and restore confidence in and maintain the basic integrity and credibility of the banks and financial institutions the Special Court (Trial of Offences Relating to Transactions in Securities) Ordinance, 1992, was promulgated on the 6th June, 1992. The Ordinance provides for the establishment of a Special Court with a sitting Judge of a High Court for speedy trial of offences relating to transactions in securities and disposal of properties attached. It also provides for appointment of one or more custodians for attaching the property of the offenders with a view to prevent diversion of such properties by the offenders.\" Section 3 of the Act provides for appointment and functions of the Custodian. Sub-section (2) of Section 3 postulates that the Custodian may, on being satisfied on information received that any person has been involved in any offence relating to transactions in securities after the 1st day of April, 1991 and on and before 6th June, 1992 (the Statutory Period), notify the name of such person in the Official Gazette. Sub-section (3) of Section 3 contains a non-obstante clause providing that on and from the date of notification under sub-section (2), any property, movable or immovable, or both, belonging to any person notified under that sub-section shall stand attached simultaneously with the issue of the notification and such attached properties may be dealt with by the Custodian in such manner as the Special Court may direct. In the Ordinance which preceded the Act, there was no provision for giving post facto hearing to a notified person for cancellation of notification, but such a provision has been made in the Act, as would appear from Section 4(2) thereof. Sub-section (1) of Section 4 of the Act reads as under: \"4. Contracts entered into fraudulently may be cancelled.-- (1) If the Custodian is satisfied, after such inquiry as he may think fit, that any contract or agreement entered into at any time after the 1st day of April, 1991 and on and before the 6th June, 1992 in relation to any property of the person notified under sub-section (2) of section 3 has been entered into fraudulently or to defeat the provisions of this Act, he may cancel such contract or agreement and on such cancellation such property shall stand attached under this Act; Provided that no contract or agreement shall be cancelled except after giving to the parties to the contract or agreement a reasonable opportunity of being heard.\" Sub-section (2) of Section 4, however, provides for a hearing as regard correctness or otherwise of the notification notifying a person in this behalf, in the event, an appropriate application therefor is filed within 30 days of the issuance of such notification. Section 5 provides for establishment of the Special Court. Section 7 confers exclusive jurisdiction upon the Special Court. Any prosecution in respect of any offence referred to in sub-section (2) of Section 3 pending in any Court is required to be transferred to the Special Court. Section 9 provides for the procedure and powers of the Special Court. Section 9-A, which was inserted by Act 24 of 1994 with effect from 25th January, 1994, confers all such jurisdiction, powers and authority as were exercisable, immediately before such commencement by any Civil Court in relation to the matter specified therein. Section 11 of the Act reads as under: \"11. Discharge of liabilities.\u0017(1) Notwithstanding anything contained in the Code and any other law for the time being in force, the Special Court may make such order as it may deem fit directing the Custodian for the disposal of the property under attachment. (2) The following liabilities shall be paid or discharged in full, as far as may be, in the order as under: (a) all revenues, taxes, cesses and rates due from the persons notified by the Custodian under sub-section (2) of Section 3 to the Central Government or any State Government or any local authority; (b) all amounts due from the person so notified by the Custodian to any bank or financial institution or mutual fund; and (c) any other liability as may be specified by the Special Court from time to time.\" ANALYSIS OF THE STATUTORY PROVISIONS The Act provides for stringent measures. It was enacted for dealing with an extra-ordinary situation in the sense that any person who was involved in any offence relating to transaction of any security may be notified whereupon, all his properties stand attached. The provision contained in the Act being stringent in nature, the purport and intent thereof must be ascertained having regard to the purpose and object it seeks to achieve. The right of a person notified to file an application or to raise a defence that he is not liable in terms of the provisions of the Act or in any event, the properties attached should not be sold in discharge of the liabilities can be taken at the initial stage by filing an application in terms of Sub-section (2) of Section 4 of the Act. But, at the stage when liabilities are required to be discharged, the notified person may inter alia raise a contention inter alia for the purpose of establishing that the properties held and possessed by them are sufficient to meet their liabilities. In terms of the provisions of the Act, the Special Court had been conferred a very wide power. PRECEDENTS AS REGARD SCOPE OF THE ACT Constitutionality and / or interpretation of the Act came up for consideration before this Court in Harshad Shantilal Mehta v. Custodian and Others [(1998) 5 SCC 1] wherein the following questions were framed: \"(1) What is meant by revenues, taxes, cesses and rates due? Does the word \"due\" refer merely to the liability to pay such taxes etc., or does it refer to a liability which has crystallised into a legally ascertained sum immediately payable? (2) Do the taxes [in clause (a) of Section 11(2)] refer only to taxes relating to a specific period or to all taxes due from the notified person? (3) At what point of time should the taxes have become due? (4) Does the Special Court have any discretion relating to the extent of payments to be made under Section 11(2)(a) from out of the attached funds/property? (5) Whether taxes include penalty or interest? (6) Whether the Special Court has the power to absolve a notified person from payment of penalty or interest for a period subsequent to the date of his notification under Section 3. In the alternative, is a notified person liable to payment of penalty or interest arising from his inability to pay taxes after his notification?\" As regard, Question No. 1, it was held: \" In the present case, the words \"taxes due\" occur in a section dealing with distribution of property. At this stage the taxes \"due\" have to be actually paid out. Therefore, the phrase \"taxes due\" cannot refer merely to a liability created by the charging section to pay the tax under the relevant law. It must refer to an ascertained liability for payment of taxes quantified in accordance with law. In other words, taxes as assessed which are presently payable by the notified person are taxes which have to be taken into account under Section 11(2)(a) while distributing the property of the notified person. Taxes which are not legally assessed or assessments which have not become final and binding on the assessee, are not covered under Section 11(2)(a) because unless it is an ascertained and quantified liability, disbursement cannot be made. In the context of Section 11(2), therefore, \"the taxes due\" refer to \"taxes as finally assessed\". In regard to Question No. 2, it was opined: \"Every kind of tax liability of the notified person for any other period is not covered by Section 11(2)(a), although the liability may continue to be the liability of the notified person. Such tax liability may be discharged either under the directions of the Special Court under Section 11(2)(c), or the taxing authority may recover the same from any subsequently acquired property of a notified person (vide Tejkumar Balakrishna Ruia v. A.K. Menon) or in any other manner from the notified person in accordance with law. The priority, however, which is given under Section 11(2)(a) to such tax liability only covers such liability for the period 1-4-1991 to 6-6-1992.\" In respect of the Question No. 3, it was opined that the date of distribution arrives when the Special Court completes the examination of claims under Section 9-A and if on that date, any tax liability for the statutory period is legally assessed, and the assessment is final and binding on a notified person, that liability would be considered for payment under section 11(1)(a), subject to what follows. So far as Question No. 4 is concerned, this Court despite upholding the contention of the Custodian that no question of any reopening of tax assessments before the Special Court would arise and the liability of the notified person to pay the tax will have to be determined under the machinery provided by the relevant tax law, observed: \"But the Special Court can decide how much of that liability will be discharged out of the funds in the hands of the Custodian. This is because the tax liability of a notified person having priority under Section 11(2)(a) is only tax liability pertaining to the \"statutory period\". Secondly payment in full may or may not be made by the Special Court depending upon various circumstances. The Special Court can, for this purpose, examine whether there is any fraud, collusion or miscarriage of justice in assessment proceedings. The assessee who is before the Special Court, is a person liable to be charged with an offence relating to transactions in securities. He may not, in these circumstances, explain transactions before the Income Tax authorities, in case his position is prejudicially affected in defending criminal charges. Then, on account of his property being attached, he may not be in a position to deposit the tax assessed or file appeals or further proceedings under the relevant tax law which he could have otherwise done. Where the assessment is based on proper material and pertains to the \"statutory period\", the Special Court may not reduce the tax claimed and pay it out in full. But if the assessment is a \"best judgment\" assessment, the Special Court may examine whether, for example, the income which is so assessed to tax bears comparison to the amounts attached by the Custodian, or whether the taxes so assessed are grossly disproportionate to the properties of the assessee in the hands of the Custodian, applying the Wednesbury Principle of Proportionality. The Special Court may in these cases, scale down the tax liability to be paid out of the funds in the hands of the Custodian.\" In regard to Question No. 5, this Court agreed with the finding of the Special Court that neither penalty nor interest can be considered as tax under Section 11(2)(a) of the Act. So far Question No. 6 is concerned, it was held that the remedy of a notified person who is assessed to penalty or interest, after the notified period, would be entitled to move the appropriate authority under the taxing statute stating: \"If it is open to him under the relevant taxing statute to contend that he was unable to pay his taxes on account of the attachment of all his properties under the Special Court Act, and that there is a valid reason why penalty or interest should not be imposed upon him after the date of notification, the authorities concerned under the taxing statute can take notice of these circumstances in accordance with law for the purpose of deciding whether penalty or interest can be imposed on the notified person. The Special Court is required to consider this question only from the point of view of distributing any part of the surplus assets in the hands of the Custodian after the discharge of liabilities under Sections 11(2)(a) and 11(2)(b). The Special Court has full discretion under Section 11(2)(c) to decide whether such claim for penalty or interest should be paid out of any surplus funds in the hands of the Custodian.\" We must, however, notice that reliance was sought to be placed on paragraph 14 of the said judgment wherein reference was made to a Bombay High Court judgment in Hitesh Shantilal Mehta v. Union of India [(1992) 3 Bom CR 716] wherein it was held: \"If the person ... approaches the Special Court and makes out, for example, a case that the property which is attached has no nexus of any sort with the illegal dealings in securities belonging to banks and financial institutions during the relevant period and/or that there are no claims or liabilities which have to be satisfied by attachment and sale of such property, in our view, the Special Court would have the power to direct the Custodian to release such property from attachment.\" But, the said observation was held to be not laying down a law by a 3- Judge Bench of this Court in L.S. Synthetics Ltd. v. Fairgrowth Financial Services Ltd. and Another [(2004) 11 SCC 456] holding: \"(i) A notified party has the requisite locus to bring the fact to the notice of the Special Court that certain sum is owing and due to him from a third party whereupon a proceeding can be initiated for recovery thereof by the Custodian and consequent application thereof in discharge of the liability of the notified person. (ii) Sub-section (3) of Section 3 should be literally construed and so construed, all properties belonging to the notified person shall be subject to attachment which may, consequently, be applied for discharge of his liabilities in terms of Section 11 of the said Act. (iii) The provisions of the Limitation Act, 1963 have no application in relation to the proceedings under the said Act.\" The ratio of the said decision as regard applicability of the Limitation Act was further considered by a Division bench of this Court in Fairgrowth Investments Ltd. v. Custodian [(2004) 11 SCC 472] wherein it was held that Section 5 of the Limitation Act will have no application in relation to an application falling under Sub-section (2) of Section 4 of the Act stating: \"\u0005It is enough for the purpose of this appeal to hold that Section 29(2) of the Limitation Act, 1963 does not apply to proceedings under Section 4(2) of the Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992. Since the appellant's petition of objection had been filed much beyond the period prescribed under that section, the Special Court was right in rejecting the petition in limine. The appeal is accordingly dismissed but without any order as to costs.\" ATTACHMENT OF PROPERTIES The Appellants herein are notified persons in terms of the provisions of the Act. Therefore, all the properties belonging to them stand attached. Such attachment being automatic, no finding was required to be arrived at that the same had been acquired either during the notified period or the Appellants were involved in offences in transactions in securities. In Tejkumar Balakrishna Ruia v. A.K. Menon and Another [(1997) 9 SCC 123], this Court held: \"In our view, the terms of sub-section (3) of Section 3 are clear. By reason thereof, the property that belongs to a notified person stands attached simultaneously with the issue of the notification that makes him a notified party. The words \"on and from the date of notification\" indicate the point of time at which the attachment takes effect; this is reiterated by the words \"shall stand attached simultaneously with the issue of the notification\". This also indicates that no separate notification or order in regard to the attachment is necessary. Neither the words \"on and from the date of notification\" nor the word 'property' lead to the conclusion that what is attached is not only that property which the notified person owned or was possessed of on the date of the notification but also all such property as he might acquire at any time thereafter. The intention to attach property which did not belong to the notified person on the date of the notification but which he might acquire later would, had it been there, have been clearly expressed and sub-section (3) would have stated that such property would stand attached the moment it was acquired by the notified person. The Act would also have made provision for a subsistence allowance or the like for the notified person. It seems to us that to give to Section 3(3) the wide meaning that has been ascribed to it in the judgment and order under appeal would render it perilously close to being held unconstitutional, for it would deprive the notified person, so long as he remained a notified person, from earning a livelihood. Even to say that such interpretation would reduce a notified person to beggary would not be accurate (sic in accurate) because the alms that he received, being his property, would stand attached. The apprehension expressed by the Special Court does not appear to be well founded: if what a notified person obtains by way of purported income or gift or inheritance is really his own money, such money would, upon establishment of the fact, stand attached automatically under the provisions of Section 3(3). In any event, it is for Parliament to enact a law that meets all contingencies. The courts must interpret the law as it reads. While a purposive interpretation is permissible where two interpretations are possible, the purposive interpretation must be such as preserves the constitutionality of the provision.\" It has further been held that the property, be shares, dividends and bonus and rights shares, would also be attached property. ISSUES (i) Whether the Appellants being not involved in offences in transactions in securities could have been proceeded against in terms of the provisions of the Act. (ii) Whether individual liabilities of the Appellants ought to have been separately considered by the Special Court as not a part of Harshad Mehta Group. (iii) Whether the tax liabilities could not have been held to be due as the order of assessments did not become final and binding. (iv) Whether the commercial properties could have been sold in auction. (v) Whether the residential properties should have been released from attachment. Before adverting to the questions raised herein, we may notice that both the parties have raised several contentions before us which have not precisely been raised before the learned Special Judge. Several subsequent events have also been brought to our notice. The parties have also filed several charts before us showing individual assets and liabilities. It has, as noticed hereinbefore, further been contended that various best judgment assessment passed by the Assessing Authority against some of the Appellants have been set aside in appeal and the matters are pending reassessment before the Assessing Authority. APPLICATION FOR DE-NOTIFICATION The Appellants' case is that the individual and corporate Appellants other than Harshad Mehta, Ashwin Mehta and Sudhir Mehta filed applications, within the prescribed period, before the Special Court praying for their de-notifications. However, by an order dated 14.07.2000, the said applications were permitted to be withdrawn with a permission to re-file the same. It is not in dispute that the said applications are pending for consideration before the Special Court. They have not been heard. What would be the effect of the jurisdictional question as regard maintainability of the said application, being barred by limitation, would indisputably fall for consideration before the Special Court. We, therefore, as at present advised, refrain ourselves from adverting to the said question. The question, however, before us is as to whether any contention which may not have a direct bearing with the question as to whether the Special Court could entertain their applications for de-notifications could be raised by way of defence. It is no doubt true that the law of limitation bars a remedy but not a right. [See Bombay Dyeing & Manufacturing Co. Ltd. v. The State of Bombay and others, AIR 1958 SC 338, Savitra Khandu Beradi v. Nagar Agricultural Sale and Purchase Co-operative Society Ltd. Ahmednagar and others [AIR 1957 Bom 178, para 6] and Hari Raj Singh v. Sanchalak Panchayat Raj U.P. Govt. Lucknow and others [AIR 1968 All 246, paras 14 and 15], but as observed hereinbefore, it would not be proper for us to consider as to whether such a remedy being not available, in terms of Section 4(2) of the Act can still be determined if raised by way of defence. In L.S. Synthetics Ltd. (supra), this Court observed: \"A statute of limitation bars a remedy and not a right. Although a remedy is barred, a defence can be raised. In construing a special statute providing for limitation, consideration of plea of hardship is irrelevant. A special statute providing for special or no period of limitation must receive a liberal and broader construction and not a rigid or a narrow one. The intent and purport of Parliament enacting the said Act furthermore must be given its full effect. We are, therefore, of the opinion that the provisions of the Limitation Act have no application, so far as directions required to be issued by the Special Court relating to the disposal of attached property, are concerned.\" Although, we do not intend to enter into the correctness or otherwise of the said contention of the Appellants at this stage, however, there cannot be any doubt whatsoever that they being notified persons, all their properties would be deemed to be automatically attached as a consequent thereto. For the said purpose, it is not necessary that they should be accused of commission of an offence as such. The contention of the Appellants to the effect that their properties should have been attached only towards the liabilities incurred by the parties in respect of the transactions made during the Statutory Period, cannot be accepted as all the Appellants being notified, the attachment of the assets would be automatic. [L.S. Synthetics Ltd. (supra)] However, the contention of the Appellants that the properties held by them otherwise are sufficient to meet their liabilities was required to be gone into, as, in our considered opinion, there cannot be a any dispute that the Appellants have such a right. A corporate veil indisputably can be lifted on several grounds. LIFTING THE CORPORATE VEIL The principle of lifting the corporate veil, however, ipso facto would not apply to the individuals. The Custodian in a case of this nature may, however, show that the transactions entered into apparently by Harshad Mehta were intimately connected with acquisition of properties in the name of others. A transaction of Benami indisputably can be a subject matter of a lis in terms of Section 4(1) of the Act as and when such a question is raised, the same may have to be dealt with by the Special Court appropriately. However, nexus between several persons in dealing with the matter may be established by the Custodian. LIABILITIES OF THE APPELLANTS \u0016 DETERMINATION The fact, however, remains that the copies of the documents, books of accounts and other records on the basis whereof the Auditors appointed by the Court filed their reports had not been shown to the Appellants herein, on the premise that they were in know of the things. As the said question has not been gone into by the learned Judge, Special Court, it is necessary that the same be considered and appropriately dealt with. The Appellants, however, raised the following contentions: (i) That the statement prepared by the Custodian and Exhibited as 'C' to his affidavit in rejoinder dated 1.10.2003 was based on material, at least, all of which were not connected to the Appellants as were pointed out before the Court. The learned Special Judge has accepted the figures stated by the Custodian at face value without probing the basis on which the statement was prepared, even though the Appellants in their sur-rejoinder asserted that the figures in the statement were contrary to both the books of accounts drawn by them as also the Auditor's report. (ii) In Para 14 of the sur-rejoinder, the Appellants denied the asset and liability position as arrived at by the Custodian. According to the Appellants, the Custodian has under-estimated the assets and exaggerated and overstated their liabilities. A triable issue had been raised and the Custodian's petition should have been converted into a suit. This was not done. In fact, according to the Appellants, there are gross errors in the material relied upon by the Custodian. The said contention must be properly adjudged. Several charts have been filed before us by the Appellants to show: (i) liabilities have been exaggerated by the Custodian. No credit for Rs. 1227 crores released to revenue on interest are given by the Custodian. (ii) liabilities have been shown in relation to unperformed contracts. (iii) Credits not given for relief obtained from Income Tax. Subsequent to the filing of the present appeal in a large number of cases the revenue demands have been set aside. It is open to the Appellants, herein to show that even if they continued to be notified, the Custodian was not right in clubbing all the individual members of the family as a single entity styled as Harshad Mehta Group. It is interesting to note that the properties belonging to the mother of Harshad Mehta has since been released from attachment. The learned Special Court, despite, such a contention having been raised by the Appellants in their affidavit in reply did not advert thereto. It is furthermore not in dispute that pursuant to or in furtherance of the directions issued by the learned Special Court, the accounts of all entities, be it corporate or individual, were drawn up separately which approach had not been dis-approved by the Auditor appointed by the Special Court. Even in the rejoinder filed by the Custodian, e.g., paragraphs 14, 20, 21 and 22, before the Special Court, such contentions have been raised. A sur-rejoinder thereto was filed on 15.10.2003 and in paragraphs 1 to 6 thereof, the said statements were denied and disputed. Our attention has also been drawn to a letter dated 7.10.2003 addressed by all the Appellants to the Office of the Custodian wherein the attention of the Custodian was drawn to the fact that all the documents relied upon by him had not been permitted to be inspected and he was requested to forward a report prepared by the Chartered Accountants in respect of the individual addressors of the letters. The said letter was replied by the Custodian by his letter dated 10.10.2003 wherein none of the queries contained in paragraphs 3 to 8 of the said letter was even attempted to be answered. The Appellants, herein contended that the Custodian did not furnish the requisite particulars thereof and inspection was refused on the grounds stated therein. The learned Special Court, in paragraph 9 of the impugned order, stated: (i) the grand total of the admitted liability, thus, comes to Rs. 7,279,127,317.15. (ii) the amount of priority demand of Income Tax liabilities comes to Rs. 18,297,576,248. (iii) the estimated value of the immovable properties of this group is Rs. 184,030,038. (iv) Thus, the total value of the assets as per the affidavit filed on behalf of the Custodian of Harshad Mehta Group is Rs. 9,727,332,166.94. (v) Thus, taking into consideration the total of the decretal amount and the income-tax liability, it is clear that the total assets of Harshad Mehta group would be far below the liabilities. In arriving at the said finding, no contention of the parties raised in their respective affidavits had been adverted to nor any material filed before it was analysed. In our opinion, the learned Judge, Special Court should have analysed the respective contentions of the parties in greater details and in particular in regard to assets and liabilities of the separate entities and having regard to the contentions raised by them that they are not part of the Harshad Mehta Group and their individual liabilities can be met from the assets held and possessed by them separately. The statement annexed to the affidavit of the Custodian showed individual break-up and in that view of the matter the net asset picture of each individual of the Appellants herein on individual basis and the effect thereof, in our opinion, should have received serious consideration at the hands of the learned Special Court. The Custodian in terms of the directions issued by the learned Special Court had affirmed an affidavit putting on record the assets and liabilities of each of the members of the so-called Harshad Mehta Group on an individual basis. Allegedly, therein it was shown that the individuals had received large loans, advances, credits from the Harshad Mehta Group and there had been intermingling of the assets to the tune of crores of rupees. Before us, Mr. Desai had filed a chart for showing the same. The said chart, however, shows that at least Mrs. Deepika Mehta held assets more than her liabilities. Mr. Desai contended that if interest is calculated, liabilities would be more than assets. But, the said chart has been drawn up on the basis of the audited accounts, the correctness whereof is itself in dispute. Before us a chart has been produced by the Appellants herein as regards Mrs. Deepika Mehta to show her liabilities payable as on 8th June, 1992 which are as under: \"Chart showing comparison of payables as on 8th June, 1992 As per Custodian's Affidavit As per Books of Accounts As per Auditor's Report M/s. Harshad S. Mehta (Payable as on 8.6.92) 25,44,68,654 9,70,18,916 9,70,18,916 M/s. Ashwin S. Mehta (Payable as on 8.6.92) 2,68,47,613 1,02,35,942 1,02,35,942 M/s. Jyoti H. Mehta (Payable as on 8.6.92) 1,45,28,332 55,39,083 55,39,083 Interest payable towards three brokerage firms as on 8.6.1992 6,14,86,640 2,34,42,444 2,34,42,444\" We, therefore, have not been given a clear picture as to the correctness or otherwise of the affidavit filed by the Custodian vis-`-vis the Books of Accounts which have been maintained by the Appellants themselves as well as the Auditor's Report. The learned Judge merely accepted the figures mentioned in the affidavit of the Custodian and relied thereupon in paragraphs 9 to 11 of the judgment without discussing the contentions and arguments raised on behalf of the Appellants, herein. We, therefore, are of the opinion, in the interest of justice, that it is necessary to give another opportunity of hearing to the Appellants. It is true that horrendous figures as regard the liabilities of Harshad Mehta have been projected before us but the same had been shown to be of the entire Group. If the liabilities of the individual entities are not treated as that of the group, for one reason or the other, indisputably, liability of those who have nothing to do with the dealings of Harshad Mehta either in their individual capacities or as Directors of some company or otherwise must be dealt with separately. The contention raised on behalf of the Appellants is that the Harshad Mehta should be considered to be sui generis and the Custodian may realize his dues from his personal assets as also of those with which he was concerned together with the assets of his front companies but such liability should not be fastened upon others who had nothing to do therewith. As regards liabilities of Harshad Mehta, the Appellants contended that since his expiry in the year 2001 his legal interests are not being defended both in the court as well as before the revenue, as a result, liabilities have been foisted upon him a large part which is on account of interest and penalties. His death has also forced upon him bankruptcy. On the other hand, the contention of the Custodian is that the Appellants had not only taken huge loans or advances from Harshad Mehta in one capacity or the other but also even transactions and shares were made by Harshad Mehta on their behalf. Further contention of the Custodian is that even Dr. Hitesh Mehta and Dr. Pratima Mehta have admitted that they had no knowledge about the transactions. This may be so, but then the effect of the rival contentions was required to be gone into by the learned Special Court. A finding of fact arrived at upon discussing and analyzing the respective contentions could have gone a long way in assisting this Court in arriving at a correct conclusion. The learned Judge proceeded on the basis that the assets and liabilities, joint and collective, of all those who are related with Harshad Mehta as also the corporate entities in which he was a Director or had some other interest must be considered as a group. Even in this behalf, it was necessary for the Special Judge to assign sufficient and cogent reasons. A question may further arise as to whether the learned Judge was correct in considering the individual liabilities of the notified parties as the liabilities of the group. If those individuals, who had no connection with Harshad Mehta could not have been proceeded against for meeting the liabilities of Harshad Mehta jointly or severally, a clear finding was required to be arrived at. Only because there had been large intermingling and flow of funds from Harshad Mehta and inter se within the group, the same by itself may not justify the conclusion that all of their assets were required to be sold irrespective of their individual involvement. It was, thus, necessary for the learned Special Court to arrive at a firm conclusion as regard the involvement of the individuals with Harshad Mehta, if any, and the extent of his liability as such. Furthermore, the question as regard liability of the parties should have been determined at the stage of Section 9-A of the Act. The Appellants have contended that the Custodian had taken contradictory or inconsistent stand inasmuch as the liabilities of all the entities were treated to be joint liabilities of Harshad Mehta group. He furthermore wanted to treat the liabilities of the notified entities also as their separate liabilities. He has proceeded on the basis that even if the assets and liabilities of all individuals is taken on an individual basis, the liabilities would exceed assets in the case of each individual and corporate entity. It had, however, never been the case of the Custodian that the examination of claims of all the notified parties is complete. It does not appear that claims inter se between the entities within the so-called group had ever been taken into consideration. The Custodian does not appear to have preferred claims before the Special Court on behalf of the largest lender on the so-called group against those he had to recover loans. Such claims may also be preferred. The Act confers wide power upon the Custodian and the learned Special Court and in that view of the matter, having regard to the the principles of natural justice, the judgment and order of the learned Judge, Special Court should have furthermore been supported by sufficient and cogent reasons. TAX LIABILITY It is not in dispute that the tax liabilities of the Appellants individually were assessed on the basis of Best Judgment assessment. It is, furthermore not in dispute that in a large number of cases the appellate authorities have set aside Best Judgment assessments. The contention of the Appellant to the effect that the income tax dues should have been considered at the point of time when they become recoverable cannot be accepted having regard to the 3-Judge Bench decision of this Court in B.C. Dalal (supra) wherein this Court categorically held that in absence of any order of stay granted by the higher court, the liabilities would remain. We may further notice that the learned Special Court relied upon a decision in Custodian v. Union of India and Ors. [Misc. Petition No. 64 of 1998, disposed of on 17th August, 2000] wherein allegedly a dichotomy between sale and distribution was sought to be resolved in terms of the decision of this Court in Harshad Shantilal Mehta (supra), the appeal whereagainst being Civil Appeal No. 5812 of 2000 was dismissed by this Court by an order dated 4.12.2000 stating that it was in agreement with the decision of the Special Court which called for no interference. This Court, therefore, has laid down a law that mere filing of an appeal is not sufficient, particularly, when there is no order of stay on recovery has been granted and the demand is outstanding. In Kedarnath Jute Mfg. Co. Ltd. (supra), this Court has held: \"Although that liability cannot be enforced till the quantification is effected by assessment proceedings, the liability for payment of tax is independent of the assessment. It is significant that in the present case, the liability had even been quantified and a demand had been created in the sum of Rs 1,49,776 by means of the notice, dated November 21, 1957, during the pendency of the assessment proceedings before the Income Tax Officer and before the finalisation of the assessment. It is not possible to comprehend how the liability would cease to be one because the assessee had taken proceedings before higher authorities for getting it reduced or wiped out so long as the contention of the assessee did not prevail with regard to the quantum of liability etc.\" But, in this case, the orders of assessment have been set aside. If the orders of assessment have been set aside the liabilities of the Appellants have to be worked out on the basis of the new orders of assessment. So long, such orders of assessment are not passed by the competent assessing authorities, it cannot be said that the Appellants are liable to pay a huge amount by way of income tax dues on the basis of such orders of assessment which have since been set aside. A chart has been annexed to the additional written submissions filed by Mr. Desai, which originated from a letter dated 9th December, 2005 issued by the Office of the Commissioner of Income Tax showing the current status of the liabilities of the individual members of the Harshad Mehta group in the following terms: \"I) Ashwin Mehta \u0016 Rs. 1396 crores, II) Deepika Mehta \u0016 Rs. 120 crores (even after deducting the amount set aside by ITAT, it exceeds Rs. 63 crores). III) Late Harshad Mehta \u0016 Rs. 11829 crores IV) Jyoti Mehta \u0016 Rs. 1457 crores V) Hitesh Mehta \u0016 Rs. 73 crores VI) Pratima Mehta \u0016 Rs. 115 crores (even after deducting the amount set aside by ITAT it exceeds Rs. 35 crores) VII) Sudhir Mehta \u0016 Rs. 339 crores VIII) Aatur Holdings \u0016 Rs. 15.95 crores (even after deducting the amount set aside by ITAT, it exceeds Rs. 2.7 crores)\" The Custodian has further brought on records that if the transactions by or on behalf of corporate entity, viz., Aatur Holdings Pvt. Ltd. and Dr. Pratima Mehta by way of illustration are taken into consideration, the same would reveal their modus operandi to the effect that the moneys were diverted from banks and financial institutions by late Harshad Mehta which were in turn diverted to his family concerns and family members. These moneys were used for speculative transactions and securities and the profits generated was used for acquiring assets. The learned Special Court, having not arrived at such a finding, this Court is not in a position to go into the correctness or otherwise thereabout. In any view of the matter, the learned Judge, Special Court having not dealt with the question as regard the mode and manner of disbursements of the amount so far as the tax liabilities of the Appellants are concerned elaborately, the same requires fresh determination in the light of the decision of this Court in Harshad Shantilal Mehta (supra). In fact, the Appellants have brought on records various orders passed by Income Tax Appellate Authorities to show that the demands of the revenue have been set aside. Furthermore, the orders of the appellate authority have been passed during pendency of this appeal. This Court, it is trite, can take into consideration the subsequent events. Such subsequent events could also be taken into consideration for the purpose of review. In Board of Control for Cricket in India and Another v. Netaji Cricket Club and Others [(2005) 4 SCC 741], this Court held: \"It is also not correct to contend that the Court while exercising its review jurisdiction in any situation whatsoever cannot take into consideration a subsequent event. In a case of this nature when the Court accepts its own mistake in understanding the nature and purport of the undertaking given by the learned Senior Counsel appearing on behalf of the Board and its correlation with as to what transpired in the AGM of the Board held on 29-9- 2004, the subsequent event may be taken into consideration by the Court for the purpose of rectifying its own mistake.\" In view of the aforementioned pronouncement of law, we are of the opinion that it is absolutely necessary to request the learned Special Court to consider the matter afresh. SALE OF COMMERCIAL PROPERTIES Sale of commercial properties has never been seriously contested by the Appellants. In fact one of the contentions raised on behalf of the Appellants had been that if commercial properties are sold, there would be no need to sale the residential properties. This Court also in its order dated 5th May, 2004 clarified that the interim order dated 30th January, 2004 shall not be applicable as regard sale of commercial properties as even before this Court the same had not been questioned. It is, furthermore, not in dispute that third party rights have since been created by reason of sale of a large number of commercial properties. By an order dated 30th January, 2004, while admitting the appeals, this Court directed: \"The learned counsel for the Custodian brings on record the result of the bids and the order of the Special Court dated 17.12.2003 and 20.1.2004. The learned counsel for the Appellants proposes to offer his comments on the bids and the two orders of the Special Court. Let it be done within two weeks. The process of finalizing the bids according to law may be proceeded ahead by the Special Court. However, the finalization shall be subject to the result of these appeals.\" The said order, however, was modified and clarified by an order dated 5th May, 2004 that the same shall not apply to the sale of commercial properties in view of the order of the learned Judge, Special Court dated 17th October, 2003 wherein it was pointed out that the notified parties did not dispute the commercial properties being put to sale by the Custodian. In that view of the matter, evidently, creation of any third party interest is no longer in dispute nor the same is subject to any order of this Court. In any event, ordinarily, a bona fide purchaser for value in an action sale is treated differently than a decree holder purchasing such properties. In the former event, even if such a decree is set aside, the interest of the bona fide purchaser in an auction sale is saved. [See Zain-ul-Abdin Khan v. Muhammad Asghar Ali Khan - 15 IA 12]. The said decision has been affirmed by this Court in Gurjoginder Singh v. Jaswant Kaur (Smt.) and Another [(1994) 2 SCC 368]. In Janak Raj v. Gurdial Singh and Anr. [1967 (2) SCR 77], this Court confirmed a sale in favour of the Appellant therein who was a stranger to the suit being the auction purchaser of the judgment-debtor's immovable property in execution of an ex parte money decree in terms of Order XXXI Rule 92, Civil Procedure Code. Despite the fact that ordinarily a sale can be set aside only under Rules 89, 90 and 91 of Order XXXI, it was opined that the court is bound to confirm the sale and direct the grant of a certificate vesting the title in the purchaser as from the date of sale when no application in term of Rule 92 was made or when such application was made and disallowed and in support thereof Zain-ul-Abdin Khan (supra) and various other decisions were referred to. In Padanathil Ruqmini Amma v. P.K. Abdulla [(1996) 7 SCC 668], this Court making a distinction between decree-holder auction purchaser himself and a third party bona fide purchaser in an auction sale, observed : \"\u0005The ratio behind this distinction between a sale to a decree-holder and a sale to a stranger is that the court, as a matter of policy, will protect honest outsider purchasers at sales held in the execution of its decrees, although the sales may be subsequently set aside, when such purchasers are not parties to the suit. But for such protection, the properties which are sold in court auctions would not fetch a proper price and the decree- holder himself would suffer. The same consideration does not apply when the decree-holder is himself the purchaser and the decree in his favour is set aside. He is a party to the litigation and is very much aware of the vicissitudes of litigation and needs no protection. We, therefore, do not interfere with that part of the order whereby and wherewith the auction sale, as regard commercial properties, had been directed by the learned Judge, Special Court. The learned Judge, Special Court, may, therefore, proceed to pass an appropriate order as regard confirmation of the sale of such properties. RESIDENTIAL PROPERTY In these appeals, we are concerned with sale of eight residential flats in a building known as Madhuli. The flat belonging to the mother of Late Harshad Mehta has been released. The flats, however, during pendency of these appeals have been sold in auction. One of the flats being flat No. 202, Arunachal Bhawan, Barakhamba Road, is subject matter of a separate proceeding pending before this Court, viz., Civil Appeal No. 681 of 2004. In these appeals, we are not concerned with the said flat. Admittedly, the flats have been sold subject to the result of these appeals. The flats have been sold on the basis of the joint liabilities of the Appellants together with Harshad Mehta and other companies as a group. The liabilities of the Appellants, in view of our findings aforementioned, are required to be considered afresh by the learned Judge, Special Court. The purchasers have also filed applications for their impleadment in these appeals. We, however, have not heard the purchasers as the question as to whether the auction sale of the said flats will be confirmed or not will depend upon the ultimate finding of the learned Judge, Special Court upon consideration of the matter afresh in the light of the observations made hereinbefore. We, therefore, would direct that the confirmation of sale of those flats be considered and appropriate order thereupon may be passed by the learned Special Court while considering the matter afresh. In the light of the directions issued herein, it would be for the purchasers of the said flats to wait till a final decision is made or take back the amount deposited by them, subject to any other or further order (s) that may be passed by the learned Special Judge. CONCLUSION In view of our foregoing discussions, we are of the opinion that: (i) The contention of the Appellants that they being not involved in offences in transactions in securities could not have been proceeded in terms of the provisions of the Act cannot be accepted in view of the fact that they have been notified in terms thereof. (ii) The Appellants being notified persons all their personal properties stood automatically attached and any other income from such attached properties would also stand attached. The question as to whether the Appellants could have been considered to be part of Harshad Mehta Group by the learned Special Court need not be determined by us as, at present advised, in view of the fact that appropriate applications in this behalf are pending consideration before the learned Special Court. The question as regard intermingling of accounts by the Appellants, herein with that of the Harshad Mehta Group and/ or any other or further contentions raised by the parties hereto before us shall receive due consideration of the learned Judge, Special Court afresh in the light of the observations made hereinbefore. (iii) As regard the tax liabilities of the Appellants, herein, we would request the learned Judge, Special Court to consider the matter afresh in the light of the observations made hereinbefore. The learned Judge, Special Court, in this behalf, having regard to the fact that several orders of Best Judgment Assessment have been passed by the Assessing Authority, may take into consideration the ratio laid down in the decision of this Court in Harshad Shantilal Mehta (supra). (iv) The learned Special Court shall proceed to pass appropriate orders as regard confirmation of the auction sales in respect of commercial properties. (v) As regard, sale of residential properties, an appropriate order may be passed by the learned Judge, Special Court in the light of the observations made hereinbefore. (vi) We direct the Custodian to permit the Appellants to have inspection of all the documents in his power or possession in the premises of the Special Court in the presence of an officer of the court. Such documents must be placed for inspection for one week continuously upon giving due notice therefor to the Appellants jointly. As the Appellants have been represented in all the proceedings jointly, only one of them would be nominated by them to have the inspection thereof. The Appellants shall be entitled to take the help of a Chartered or Cost Accountant and may make notes therefrom for their use in the pending proceeding. (vii) The Appellants shall file their objections to the said report, if any, within ten days thereafter. The Custodian may also take assistance and/ or further assistance from a Chartered Accountant of his choice. A reply and/ or rejoinder thereto shall be filed within one week from the date of the receipt of the copy of the objection. The parties shall file their respective documents within one week thereafter. Such documents should be supported by affidavits. Both the parties shall be entitled to inspect such documents and filed their responses thereto within one week thereafter. The parties shall file the written submissions filed before this Court together with all charts before the learned Special Judge, Special Court within eight weeks from date. (viii) The learned Judge, Special Court shall allow the parties to make brief oral submissions with pointed reference to their written submissions. Such hearing in the peculiar facts and circumstances of this case should continue from day to day. (ix) The learned Judge, Special Court while hearing the matter in terms of this order shall also consider as to whether the auction sale should be confirmed or not. It will also be open to the learned Judge, Special Court to pass an interim order or orders, as it may think fit and proper, in the event any occasion arises therefor. (x) We would, however, request the learned Special Judge, Special Court to complete the hearings of the matter, keeping in view of the fact that auction sale in respect of the residential premises is being consideration, as expeditiously as possible and not later than twelve weeks from the date of the receipt of the copy of this order. Save and except for sufficient or cogent reasons, the learned Judge shall not grant any adjournment to either of the parties. (xi) The learned Judge, Special Court shall take up the matter relating to confirmation of the auction sale in respect of the commercial properties immediately and pass an appropriate order thereupon within four weeks from the date of receipt of copy of this order. If in the meanwhile orders of assessment are passed by the Income Tax Authorities, the Custodian shall be at liberty to bring the same to the notice of the learned Special Court which shall also be taken into consideration by the learned Judge, Special Court. With the aforementioned observations and directions, these appeals are allowed. The impugned judgments are set aside and the matter is remitted to the learned Judge, Special Court for consideration of the matter afresh. However, the parties shall bear their own costs.",
        "1646640": "PETITIONER: UNION OF INDIA & ANR. Vs. RESPONDENT: CYNAMIDE INDIA LTD. & ANR. DATE OF JUDGMENT10/04/1987 BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J) SINGH, K.N. (J) CITATION: 1987 AIR 1802 1987 SCR (2) 841 1987 SCC (2) 720 JT 1987 (2) 107 1987 SCALE (1)728 CITATOR INFO : F 1987 SC2351 (3) APL 1988 SC 686 (9) D 1988 SC1301 (8) R 1988 SC1737 (75) R 1990 SC 334 (102) E 1990 SC1277 (31,38,43) R 1990 SC1851 (30) ACT: Drugs (Prices Control) Order, 1979: Paragraphs 3, 12, 13 & 27: Bulk Drugs--Price fixation of--Whether legislative activity--Principles of natural justice whether applicable to-Cost of production-----Whether can be determined by a subordinate legislating Body--Price fixation-Review--Nature of--Formulations--Fixation of retail prices--Whether to await the result of review application. Constitution of India, Articles 32 & 226--Essential Commodities-Price fixation of---Whether matter for investi- gation and interference by Court. Practice and Procedure: Essential Commodities--Price fixation of--Interim order staying implementation of notifi- cation fixing prices--Courts not to pass orders which would be against public interest. Constitution of India, Article 39(b)--Material resources of the community--Distribution of to sub-serve common good--Obligations of State. HELD: Paragraph 3 of the Drugs (Prices Control) Order, 1979 made by the Central Government in exercise of powers under s. 3(2)(c) of the Essential Commodities. Act, 1955 empowers the Government, after making such enquiry as it deems fit, to fix the maximum price at which the indigenously manufac- tured bulk drug shall be sold. Clause (2) of Paragraph 3 provides that while so fixing the price of a bulk drug, the Government may take into account the average cost of produc- tion of such bulk drug manufactured by a efficient manufac- turer and allow a reasonable return on net worth. Paragraph 12 empowers the Government to fix leader prices of formula- tions of categories I and II, while paragraph 13 empowers the Government to fix retail prices of formulations of category III. Paragraph 27 enables any person aggrieved by any notification or order under the various paragraphs aforesaid to appeal to the Government for a review. The Central Government issued notifications under paragraph 3 842 of the 1979 Order fixing the maximum prices at which various indigenously manufactured bulk drugs could be sold. The manufacturers first filed review applications under para- graph 27 of the Order and thereafter writ petitions under Art. 226 of the Constitution challenging the notifications. The High Court quashed those notifications on the ground of failure to observe the principles of natural justice. Since prices of formulations are primarily dependent on prices of bulk drugs, the notifications fixing the retail prices of formulations issued during the pendency of review petitions were also quashed. In the appeal by the Union of India, it was contended that the fixation of maximum price under paragraph 3 of the Order was a legislative activity and, therefore, not subject to any principle of natural justice, that paragraph 27 of the Order gave a remedy to the manufacturers to seek a review of the order fixing the maximum price under paragraph 3, that such review did not partake the character of a judicial or quasi,judicial proceedings, and that at the time of the hearing of the review application the matter under- went thorough and detailed discussion between the parties and the Government as well as the Bureau of Industrial Costs and Prices, and that the prices had not been fixed in an arbitrary manner. For the respondents, it was contended that unlike other price control legislations, the Drugs (Prices Control) Order was designed to induce better production by providing for a fair return to the manufacturers; that the provision for an enquiry proceeding the determination of the price of a bulk drug, the prescription in paragraph 3, clause 2 that the average cast of production of the bulk drug manufactured by an efficient manufacturer should be taken into account and that a reasonable return on net worth should be allowed, and the provision for a review of the order determining the price, established that price fixation under the Order was a quasi-judicial activity obliging the observance of the rules of natural justice; that the review, for which provision is made by paragraph 27, was certainly of quasi-judicial char- acter and, therefore, it was necessary that the manufactur- ers should be informed of the basis for the fixation of the price, that the price had been fixed in an arbitrary manner and the Government was not willing to disclose the basis on which the prices were fixed on the pretext that it may involve disclosure of matters of confidential nature; that since the price of formulations were dependent on the prices of bulk drugs, these should not have been prescribed until the review application was disposed of, that the undertaking given by the parties before the High Court while obtaining ex-parte interim order to main- 843 tain the stanus-quo on the prices of bulk drugs and formula- tions prevailing before the issue of notifications, and in case of dismissal of their petitions to deposit the differ- ence in the prices of the formulations in the Court, lapsed with the disposal of the writ petition and it could no longer be enforced; and that the delay in filing special leave petitions against other manufacturers should not be condoned as the Government was well versed litigant as compared to private litigants. Allowing the appeal, the Court, HELD: 1. Price fixation is neither the function nor the forte of the Court. The Court is concerned neither with the policy nor with the rates. But it has jurisdiction to en- quire into the question, in appropriate proceedings, whether relevant considerations have gone in and irrelevant consid- erations kept out of the determination of the price. For example, if the legislature has decreed the pricing policy and prescribed the factors which should guide the determina- tion of the price, the Court will, if necessary, enquire into the question whether the policy and factors were present to the mind of the authorities specifying the price. Its examination would stop there. The mechanics of price fixation are not concern of the executive. The Court will not revaluate the considerations even if the prices were demonstrably injurious to some manufacturers or producers. It will, of course, examine if there was any hostile dis- crimination. [852E-H] Secretary of Agriculture v. Central Reig Refining Compa- ny, 338 604; Prag Ice & Oils Mills v. Union of India, [1978] 3 SCC 459 and Welcom Hotel v. State of Andhra Pradesh, [1983] 4 SCC 575, referred to. 2. Profiteering, by itself, is evil. Profiteering in the scarce resources of the community, much needed life-sustain- ing food stuffs and fife saving drugs is diabolic. It is a menace which has to be lettered and curbed. The Essential Commodities Act, 1955 is a legislation towards that end, in keeping with the duty of the State enshrined in Art. 39(b) of the Constitution towards securing that the ownership and control of the material resources of the community are so distributed as best to subserve the common good. [851E-F] The right of the citizen to obtain essential articles at fair prices and duty of the State to provide them are thus transformed into the power of the State to fix prices and obligation of the producer to charge no more than the price fixed. [854F] 844 Shree Meenakshi Mills Ltd. v. Union of India, [1974] 1 SCC 468; Hari Shankar Bagla v. State of Madhya Pradesh, [1955] 1 SCR 380; Union of India v. Bhanamal Gulzarimal, [1960] 2 SCR 627; Sri Krishna Rice Mills v. Joint Director (Food), (unreported), State of Rajasthan v. Nathmal and Mithamal, [1954] SCR 982; Narendra Kumar v. Union of India, [1960] 2 SCR 375, Panipat Co-operative Sugar Mills v. Union of India, [1973] 1 SCC 129; Anakapalle Co-operative Agricul- tural and Industrial Society Ltd. v. Union of India, [1973] 3 SCC 435 and Premier Automobiles Ltd. v. Union of India, [1972] 2 SCR 526, referred to. 3.1 A price fixation measure does not concern itself with the interests of an individual manufacturer or produc- er. It is generally in relation to a particular commodity or class of commodities or transactions. It is a direction of a general character not directed against a particular situa- tion. It is intended to operate in future. It is conceived in the interest of the general consumer public. [854E-F] 3.2 Price fixation is more in the nature of a legisla- tive activity than administrative. A legislative act is the creation and promulgation of a general rule of conduct without reference to particular cases; an administrative act is the making and issue of a specific direction or the application of a general rule to a particular case in ac- cordance with the requirements of policy. Legislation is the process of formulating a general rule of conduct without reference to particular cases and usually operating in future; administration is the process of performing particu- lar acts, of issuing particular orders or of making deci- sions which apply general rules to particular cases. [853F- H; 854A] Secretary of Agriculture v. Central Reig Refining Compa- ny, 338 US 604, and Saraswati Industrial Syndicate Ltd. v. Union of India, [1974] 2 SCC 630, referred to. 3.3.1 Price fixation may occasionally assume an adminis- trative or quasi-judicial character when it relates to acquisition or requisition of goods or property from indi- viduals and it becomes necessary to fix the price separately in relation to such individuals. Such situations may arise when the owner of property or goods is compelled to sell his property or goods to the Government or its nominee and the price to be paid is directed by the legislature to be deter- mined according to the statutory guidelines laid down by it. In such situations the determination of price may acquire a quasi-judicial character. [854G-H; 855A] 3.3.2 Section 3(2)(f) of the Essential Commodities Act enables the 845 Central Government to make an order requiring any person engaged in the production of any essential commodity to sell the whole or a specific part of the quantity produced by him to the Government or its nominee. Section 3(3)(C) provides for the determination of the price to be paid to such a person. If the provisions of s. 3(2)(c), under which the price of an essential commodity may be controlled, are contrasted with s. 3(3)(C) under which payment is to be made for a commodity required to be sold by an individual to the Government, the distinction between a legislative act and a non-legislative act will at once become clear. The order made under s. 3(3)(c), which is not in respect of a single transaction, nor directed to a particular individual, is clearly a legislative act, while an order made under s. 3(3)(C), which is in respect of a particular transaction of compulsory sale from a specific individual, is a nonlegisla- tive act. [860B-H; 861A-B] 3.3 The order made under s. 3(2)(c) controlling the price of an essential commodity may itself prescribe the manner in which price is to be fixed but that will not make the fixation of price a non-legislative activity, when the activity is not directed towards a single individual or transaction but is of a general nature, covering all indi- viduals and all transactions. The legislative character of the activity is not shed and an administrative. or quasi- judicial character acquired merely because guidelines pre- scribed by the statutory order have to be taken into ac- count. [861B-C] 3.4 Legislative action, plenary or subordinate, is not subject to rules of natural justice. In the case of Parlia- mentary legislation, the proposition is self evident. In the case of subordinate legislation, it may happen that Parlia- ment may itself provide for a notice and for a hearing, in which case the substantial non-observance of the statutorily prescribed mode of observing natural justice may have the effect of invalidating the subordinate legislation. But where the legislature has not chosen to provide for any notice or hearing, no one can insist upon it and it will not be permissible to read natural justice into such legislative activity. [852H; 853A-C] New India Sugar Works v. State of Uttar Pradesh, [1981] 2 SCC 293; Laxmi Khandsari v. State of Uttar Pradesh, [1981] 2 SCC 600; Ramesh Chandra Kachardas Porwal v. State of Maharashtra, [1981] 2 SCC 722; Bates v. Lord Hailsha, of St. Marylebone, [1972] 1 WLR 1973; Edinburgh and Dalkeith Rv. v. Wauchope Per Lord Brougham, [1842] 8 CI & F 700, 720; Brit- ish Railways Board v. Pickin, [1974] 1 All ER 609, Sarkar Sasta Anaj Vikreta Sangh v. State of Madhya Pradesh, 846 [1981] 4 SCC 471 and Tharoo Mal v. Puranchand, [1978] 1 SCC 102, referred to. 3.5 Nothing in the scheme of the Drugs (Prices Control) Order, 1979 leads to the inference that price fixation under that Order is not a legislative activity but a quasi-judi- cial activity which would attract the observance of the principles of natural justice. Nor is there anything in the scheme or the provisions of that Order which otherwise contemplates the observance of any principle of natural justice or kindred rule, the non-observance of which would give rise to a cause of action to a suitor. [871G-H; 872A-B] 4.1 Occasionally the legislature directs the subordinate legislating body to make 'such enquiry as it think fit' before making the subordinate legislation. In such a situa- tion, while such enquiry by the subordinate legislating body as it deems fit is a condition precedent to the subordinate legislation, the nature and the extent of the enquiry is in the discretion of the subordinate legislating body and the subordinate legislation is not open to question on the ground that the enquiry was not as fur as it might have been. The provision for such an enquiry is generally an enabling provision, intended to facilitate the subordinate legislating body to obtain relevant information' from all and whatever source considered necessary. It is the sort of enquiry which the legislature itself my cause to he made before legislating, an enquiry which will not confer any right an anyone other than the enquiring body. It is differ- ent from an enquiry in which an opportunity is required to he given to persons likely to he affected. The former is an enquiry leading to a legislative activity while the latter is an enquiry which ends in an administrative or quasi- judicial decision. [853D-F] 4.2 In the present case, paragraph 3 of the Drugs (Prices Control) Order, 1979 is an enabling provision. \"Such an enquiry as it thinks fit\" contemplated by it is an en- quiry of the former character to he made for the purposes of fixing the maximum price at which a bulk drug may he sold, with a view to regulating its equitable distribution and making it available at a fair price for the benefit of the ultimate consumer in consonance with Art. 39(b) of the Constitution. It is primarily from the consumer public's point of view that the Government is expected to make its enquiry. The need of the consumer public is to he ascer- tained and making the drug available to them at a fair price is its ultimate aim. The enquiry is to he made from that angle and directed towards that end. Information may he gathered from whatever source considered desirable by the Government. [872B-E] 847 4.3 In fixing the price of a bulk drug, the Government is expressly required by the Order to take into account the average cost of production of such bulk drug manufactured by 'an efficient manufacturer' and allow a reasonable return on 'net worth'. For this purpose too, the Government may gather information from any source including the manufacturers. Here again the enquiry by the Government need not be re- stricted to 'an efficient manufacturer' or some manufactur- ers; nor need it be extended to all manufacturers. What is necessary is that the average cost of production, by 'an efficient manufacturer' must be ascertained and a reasonable return allowed on 'net worth'. Being a subordinate or dele- gated legislative activity, the enquiry must necessarily comply with the statutory conditions, if any, no more and no less, and no implications of natural justice can be read into it unless it is a statutory condition. [866B-D] 5.1 The review provided by paragraph 27 of the Order, of the order made under paragraph 3 fixing maximum price of indigenously manufactured drugs, and under paragraphs 12 and 13 fixing leader and retail prices of formulations, is akin to a post-decisional hearing which is sometimes afforded after the making of some administrative orders, but not truly so. It is a curious amalgam of a hearing which occa- sianally precedes a subordinate legislative activity such as the fixing of municipal rates etc. and a post decisional hearing after the making of an administrative or quasi- judicial order. it is a hearing which follows a subordinate 'legislative activity intended to provide an opportunity to affected persons such as the manufacturers, the industry and the consumer public to bring to the notice of the subordi- nate legislating body the difficulties or problems experi- enced or likely to he experienced by them consequent on the price fixation, whereupon the Government may make appropri- ate orders. More precisely it is a review of subordinate legislation by a legislating body at the instance of an aggrieved person. [873B; 874C-D] 5.2 The reviewing authority has the fullest freedom and discretion under paragraph 27 of the Order to prescribe its own procedure and consider the matter brought before it so long as it does not travel beyond the parameters prescribed by paragraph 3 in the case of a review against an order made under that paragraph and the respective other paragraphs in the case of other orders. But whatever procedure is adopted, it must be a procedure tuned to the situation. [873H; 874A- B] Vrajlal Manilal & Co. v. Union of India & Anr., [1964] 7 SCR 97; Shivaji Nathubhai v. Union of India & Ors., [1960] 2 SCR 775; Maneka Gandhi v. Union of India,[1978] 2 SCR 621; Swadeshi Cotton Mills v. 848 Union of India, [1981] 2 SCR 533 and Liberty Oil Mills v. Union of India, [1984] 3 SCR 676, distinguished. 6.1 So long as the method prescribed and adopted by the subordinate legislating body in arriving at the cost of production of bulk drugs was not arbitrary and opposed to the principal statutory provisions, it could not legitimate- ly be questioned. [878F] 6.2 It is open to the subordinate legislating body to prescribe and adopt its own mode of ascertaining the cost of production and the items to be included and excluded in so doing. Such a body is under no obligation to follow the method adopted by the Income-tax authorities in allowing expenses for the purpose of ascertaining income and assess- ing it. There may be many items of business expenditure which may be allowed by Income-tax authorities as legitimate expenses but which can never enter the cost of production. It is open to such an authority to adopt a rough and read but otherwise not unreasonable formula rather than a need- lessly intricate so-called scientific formula. [878D-H] It could not therefore, be said in the instant case, that the subordinate legislating authority acted unreasona- bly in prescribing the norms in the manner it has done. 7.1 From the legislative nature of the activity of the Government, it is clear that it is under no obligation to make any disclosure of any information received and consid- ered by it in making the order but in order to render effec- tive the right to seek a review given to an aggrieved per- son, the Government, if so requested by the aggrieved manu- facturer, is under an obligation to disclose any relevant information which may reasonably be disclosed pertaining to 'the average cost of production of the bulk drug manufac- tured by an efficient manufacturer' and 'the reasonable return on net worth'. [874C-E] 7.2 In the instant case, the procedure followed by the Government in furnishing the requisite particulars at the time of the hearing of the review applications and discuss- ing across the table the various items that hod been taken into account was sufficient compliance with the demands of fair play in the case of the class of persons claiming to by affected by the fixation of maximum price under the Drugs (Prices Control) Order. It cannot, therefore, be said that there was anything unfair in the procedure adopted by the Government. [876D-E] 8. This Court cannot constitute itself into a court of appeal over 859 the Government in the matter of price fixation. The ques- tions that obsolete quantitative usages had been taken into consideration, proximate cost data had been ignored, and the data relating to the year ending November 1976 had been adopted as the basis; that there were errors in totalling, errors in the calculation of prices of utilities, errors in the calculation of 'net worth' and many other similar er- rors, were questions to be raised before the Government in the review application under paragraph 27. [877A-C] 9.1 It is the necessary duty of the Government to pro- ceed to fix the retail price of a formulation as soon as the price of the parent bulk drug is fixed. Though the price fixation of formulations is dependent on the price of the bulk drug, it is not to await the result of a review appli- cation which in the end may turn out to be entirely without substance. In view of the public interest, therefore, it is necessary that the price of formulation should be fixed close on the heels of the fixation of bulk drug price. [879D-E; G] 9.2 The ups and downs of commerce are inevitable it is not possible to devise a fool proof system to take care of every possible defect and objection. It is certainly not a matter at which the court could take a hand. All that court may do is to direct the Government to dispose of the review application expeditiously according to a time bound pro- gramme. [879F-G] 10. Though the price of a bulk drug is dependent on innumerable variables, it does not follow that the notifica- tion fixing the maximum price must necessarily be struck down as obsolete by the mere passage of time. The applica- tions for review must be dealt with expeditiously and when- ever they are not so dealt with, the aggrieved person may seek a mandamus from the court to direct the Government to deal with the review application within a time frame-work. [880B-C] 11. Where prices of essential commodities are fixed in order to maintain or increase their supply or for securing their equitable distribution and availability at fair prices, the court should not make any interim order staying the implementation of the notification fixing the prices. Such orders are against the public interest and ought not to be made by a court unless it is satisfied that no public interest is going to suffer. In matters of fixation of price, it is the interest of the consumer public that must come first and any interim order must take care of that interest. [880D-F] 850 In the instant case, the order made by the High Court has the manufacturers on terms, but the consumer public has been left high and dry. [881D] 12. Apart from the fact that an appeal is ordinarily considered to be a continuation of the original proceeding, in the present case, further orders of the Supreme Court were also in contemplation and such further orders could only be made if appeals were preferred to the Supreme Court. There was no doubt in anyone's mind that the matter would be taken up in appeal to the Supreme Court whichever way the writ petitions were decided. The undertakings given by the parties in the present cases, were thus intended to and do continue to subsist. [881E-F] [The Government is directed to dispose of the review applications after giving notice of hearing to the manufac- turer. The hearing to be given within two months and the review applications disposed of within two weeks after the conclusion of the hearing.] JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1603 of 1985 etc. From the Judgment and Order dated 17.12.1984 of the Delhi High Court in C.W.P. No. 820 of 1981. G. Ramaswamy, Additional Solicitor General G. Subramani- um, C.V. Subba Rao and A. Subba Rao for the Appellants. A.B. Diwan, S.I. Thakar, D.D. Udeshi, H.S. Merchant, Ravinder Narain, Mrs. A.K. Verma and D.N. Mishra for the Respondents. The Judgment of the Court was delivered by CHINNAPPA REDDY, J. It was just the other day that our brothers Ranganath Misra and M.M. Dutt, JJ. had to give directions in a case (Vincent Panikurbangara v. Union of India) where a public spirited litigant had complained about the unscrupulous exploitation of the Indian Drug and Pharma- ceutical Market by multinational Corporations by putting in circulation low-quality and even deleterious drugs. In this group of cases we are faced with a different problem of alleged exploitation by big manufacturers of bulk drugs. The problem is that of high prices, bearing, it is said, little relation to the cost of production to the manufacturers. By way of illustration, we may straightaway mention a glaring instance of such high-pricing which was brought to our notice at the very commencement of the hear- ing. 'Barlagan Ketone', a bulk drug, was not treated as an essential bulk drug under the Drugs (Prices Control) Order, 1970 and was not included in the schedule to that order. A manufacturer was, under the provisions of that Order, free to continue to sell the drug at the price reported by him to the Central Government at the time of the commencement of the order, but was under an obligation not to increase the price without the prior approval of the Central Government. The price which the manufacturer of Barlagan Kotone, report- ed to the Central Government in 1971 was Rs.24,735.68 per Kg. After the 1979 Drugs (Prices Control) Order came into force, the distinction between essential and non-essential bulk drugs was abolished and a maximum price had to be fixed for Barlagan Ketone also like other bulk drugs. The manufac- turer applied for fixation of price at Rs.8,500 per Kg. The Government, however, fixed the price at Rs.1,810 per Kg. For the moment, ignoring the price fixed by the Government, we see that the price of Rs.24,735 per Kg. at which the manu- facturer was previously selling the drug and at which he continues to market the drug to this day because of the quashing of the order fixing the price by the High Court, is so unconsciously high even compared with the price claimed by himself that it appears to justify the charge that some manufacturers do indulge in 'profiteering'. Profiteering, by itself, is evil. Profiteering in the scarce resources of the community, much needed life-sustain- ing food-stuffs and lifesaving drugs is diabolic. It is a menance which had to be lettered and curbed. One of the principal objectives of the Essential Commodities Act, 1955 is precisely that. It must be remembered that Art. 39(b) enjoins a duty on the State towards securing 'that the ownership and control of the material resources of the community are so distributed as best to subserve the common good'. The Essential Commodities Act is a legislation to- wards that end. Section 3(1) of the Essential Commodities Act enables the Central Government, if it is of opinion 'that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair price', to 'provide for regulating or prohibiting by order, the production, supply and distribution thereof and trade and commerce therein'. In particular, s. 3(2)(c) enables the Central Government, to make an order providing for controlling the price at which any essential commodity may be bought or sold. It is in pursuance of the powers granted to the Central Government by the Essential Commodi- ties Act that first the Drugs (Prices Control) Order, 1970 and later the Drugs (Prices Control) Order, 1979 were made. Armed with authority under the Drugs (Prices Control) Order, 1979 the Central Government issued notifications fixing the maximum prices at which various indigenously manufactured bulk drugs may be sold by the manufacturers. These notifica- tions were questioned on several grounds by the manufactur- ers and they have been quashed by the Delhi High Court on the ground of failure to observe the principles of natural justice. Since prices of 'formulations' are primarily de- pendent on prices of 'buli drugs', the notifications fixing the retail prices of formulations were also quashed. The manufacturers had also filed review petitions before the Government under paragraph 27 of the 1979 Order. The review petitions could not survive after the notifications sought to be reviewed had themselves been quashed. Nevertheless the High Court gave detailed directions regarding the manner of disposal of the review petitions by the High Court. The Union of India has preferred these appeals by Special leave of this Court against the judgment of the High Court. The case for the Union of India was presented to us ably by Shri G. Ramaswami, the learned Additional Solicitor General and the manufacturers were represented equally ably by Shri Anil Diwan. Before we turn to the terms of the Drugs (Prices Con- trol) Order, 1979 we would like to make certain general observations and explain the legal position in regard to them. We start with the observation, 'Price-fixation is nei- ther the function nor the forte of the Court'. We concern ourselves neither with the policy nor with the rates. But we do not totally deny ourselves the jurisdiction to enquire into the question, in appropriate proceedings, whether relevant considerations have gone in and irrelevant consid- erations kept out of the determination of the price. For example, if the Legislature has decreed the pricing policy and prescribed the factors which should guide the determina- tion of the price, we will, if necessary, enquire into the question whether the policy and the factors are present to the mind of the authorities specifying the price. But our examination will stop there. We will go no further. We will not deluge ourselves with more facts and figures. The assem- bling of the raw materials and the mechanics of price fixa- tion are the concern of the executive and we leave it to them. And, we will not revaluate the considerations even if the prices are demonstrably injurious to some manufacturers or producers. The Court will, of course, examine if there is any hostile discrimination. That is a different 'cup of tea' altogether. The second observation we wish to make is, legislative action, plenary or subordinate, is not subject to rules of natural justice. In the case of Parliamentary legislation, the proposition is self-evident. In the case of subordinate 'legislation, it may happen that Parliament may itself provide for a notice and for a hearing-there are several instances of the legislature requiring the subordinate legislating authority to give public notice and a public hearing before say, for example, levying a municipal rate--,in which case the substantial non-observance of the statutorily prescribed mode of observing natural justice may have the effect of invalidating the subordinate legislation. The right here given to rate payers or others is in the nature of a concession which is not to detract from the character of the activity as legislative and not quasijudi- cial. But, where the legislature has not chosen to provide for any notice or hearing, no one can insist upon it and it will not be permissible to read natural justice into such legislative activity. Occasionally, the legislature directs the subordinate legislating body to make 'such enquiry as it thinks fit' before making the subordinate legislation. In such a situa- tion, while such enquiry by the subordinate legislating body as it deems fit is a condition precedent to the subordinate legislation, the nature and the extent of the enquiry is in the discretion of the subordinate legislating body and the subordinate legislation is not open to question on the ground that the enquiry was not as full as it might have been. The provision for 'such enquiry as it thinks fit' is generally an enabling provision, intended to facilitate the subordinate legislating body to obtain relevant information from all and whatever source and not intended to vest any right in any one other than the subordinate-legislating body. It is the sort of enquiry which the legislature itself may cause to be made before legislating, an enquiry which will not confer any right on anyone. The third observation we wish to make is, price fixation is more in the nature of a legislative activity than any other. It is true that, with the proliferation of delegated legislation, there is a tendency for the line between legis- lation and administration to vanish into an illusion. Admin- istrative, quasi-judicial decisions tend to merge in legis- lative activity and, conversely, legislative activity tends to fade into and present an appearance of an administrative or quasi-judicial activity. Any attempt to draw a distinct line between legislative and administrative functions, it has been said, is 'difficult in theory and impossible in practice'. Though difficult, it is necessary that the line must sometimes be drawn as different legal fights and conse- quences may ensue. The distinction between the two has usually been expressed as 'one between the general and the particular'. 'A legislative act is the creation and promulgation of a general rule of conduct without refer- ence to particular cases; an administrative act is the making and issue of a specific direction or the application of a general rule to a particular case in accordance with the requirements of policy'. 'Legislation is the process of formulating a general rule of conduct without reference to particular cases and usually operating in future; adminis- tration is the process of performing particular acts, of issuing particular orders or of making decisions which apply general rules to particular cases.' It has also been said \"Rule making is normally directed toward the formulation of requirements having a general application to all members of a broadly identifiable class\" while, \"an adjudication, on the other hand, applies to specific individuals or situa- tions\". But, this is only a bread distinction, not neces- sarily always true. Administration and administrative adju- dication may also be of general application and there may be legislation of particular application only. That is not ruled out. Again, adjudication determines past and present facts and declares rights and liabilities while legislation indicates the future course of action. Adjudication is determinative of the past and the present while legislation is indicative of the future. The object of the rule, the reach of its application, the rights and obligations arising out of it, its intended effect on past, present and future events, its form, the manner of its promulgation are some factors which may help in drawing the line between legisla- tive and non-legislative acts. A price fixation measure does not concern itself with the interests of an individual manufacturer or producer. It is generally in relation to a particular commodity or class of commodities or transac- tions. It is a direction of a general character, not direct- ed against a particular situation. It is intended to operate in the future. It is conceived in the interests of the general consumer public. The right of the citizen to obtain essential articles at fair prices and the duty of the State to so provide them are transformed into the power of the State to fix prices and the obligation of the producer to charge n6 more than the price fixed. Viewed from whatever angle, the angle of general application the prospectivity of its effect, the public interest served, and the rights and obligations flowing therefrom, there can be no question that price fixation is ordinarily a legislative activity. Price- fixation may occasionally assume an administrative or quasi-judicial character when it relates to acquisition or requisition of goods or property from individuals and it becomes necessary to fix the price separately in relation to such individuals. Such situations may arise when the owner of property or goods is compelled to sell his property or goods to the Government or its nominee and the price to be paid is directed by the legislature to be determined accord- ing to the statutory guidelines laid down by it. In such situations the determination of price may acquire aquasi-judicial character. Otherwise, price fixation is generally a legislative activity. We also wish to clear a misapprehension which appears to prevail in certain circles that price-fixation affects the manufacturer or producer primarily and therefore fairness requires that he be given an opportunity and that fair opportunity to the manufacturer or producer must be read into the procedure for price-fixa- tion. We do not agree with the basic premise that price fixation primarily affects manufacturers and producers. Those who are most vitally affected are the consumer public. It is for their protection that price-fixation is resorted to and any increase in price affects them as seriously as any decrease does a manufacturer, if not more. The three observations made by us are well-settled and wellfounded on authority. The cases to which we shall now refer, will perhaps elucidate what we have tried, unfelici- tously, to express. In Shree Meenakshi Mills Ltd. v. Union of India, [1974] 1 SCC 468 a notification fixing the ex-factory price of certain counts of cotton yarn was questioned on the ground that the price had been arbitrarily fixed. After referring to Hari Shanker Bagla v. State of Madhya Pradesh, [1955] 1 SCR 380; Union of India v. Bhanamal Gulzarimal, [1960] 2 SCR 627; Sri Krishna Rice Mills v. Joint Director (Food), (unreported); State of Rajasthan v. Nathmal and Mithamal, [1954] SCR 982; Narendra Kumar v. Union of India, [1960] 2 SCR 375; Panipat Co-operative Sugar Mills v. Union of India, [1973] 1 SCC 129; Anakapalle Co-operative Agricultural & Industrial Society Ltd. v. Union of India, [1973] 3 SCC 435 and Premier Automobiles Ltd. v. Union of India, [1972] 2 SCR 526 a constitution bench of the court observed that the dominant object and the purpose of the legislation was the equitable distribution and availability of commodities at fair price and if profit and the producer's return were to be kept in the forefront, it would result in losing sight of the object and the purpose of the-legislation. If the prices of yarn or cloth were fixed in such a way to enable the manufacturer or producer recover his cost of production and secure a reasonable margin of profit, no aspect of infringe- ment of any fundamental right could be said to arise. It was to be remembered that the mere fact that some of those were engaged in the industry, trade or commerce alleged'that they were incurring loss would not render the law stipulating the price unreasonable. It was observed, \"The control of prices may have effect either on maintaining or ,increasing supply of com- modity or securing equit- able distribution and availability at fair prices. The controlled price has to retain this equilibrium in the supply and demand of the commodity. The cost of production, a reasonable return to the producer of the commodity are to be taken into account. The producer must have an incentive to produce. The fair price must be fair not only from the point of view of the consumer but also from the point of view of the producer. In fixing the prices, a price line has to be held in order to give preference or pre-dominant consideration to the interest of the consumer or the general public over that of the produc- ers in respect of essential commodities. The aspect of ensuring availability of the essen- tial commodities to the consumer equitably and at fair price is the most important considera- tion. The producer should not be driven out of his producing business. He may have to bear loss in the same way as he does when he suf- fers losses on account of economic forces operating in the business. If an essential commodity is in short supply or there is hoarding, concerning or there is unusual demand, there is abnormal increase in price. If price increases, it becomes injurious to the consumer. There is no justification that the producer should be given the benefit of price increase attributable to hoarding or cornering or artificial short supply. In such a case, if an \"escalation\" in price is contem- plated at intervals, the object of controlled price may be stultified. The controlled price will enable both the consumer and the producer to tide over difficulties. therefore, any restriction in excess of what would be neces- sary in the interest of general public or to remedy the evil has to be very carefully considered so that the producer does not perish and the consumer is not crippled.\" The cases of Panipat Sugar Mills and Anakapalle Co-operative Agricultural Society were distinguished on the ground that they were governed by sub-section (3C) of sec. 3 of the Essential Commodities Act and therefore, had no relevance to the case before the Constitution Bench. The case of Premier Automobiles was distinguished on the ground that the deci- sion was rendered by invitation and on the agreement of the parties irrespective of technical and legal questions. The Court quoted with approval a passage from Secretary of Agriculture v. Central Reig Refining Company, 330 US 604, stating, \"Suffice it to say that since Congress fixed the quotas on a historical basis it is not for this Court to reweigh the relevant factors and, per chance, substitute its notion of expediency and fairness for that of Congress. This is so even though the quota thus fixed may demonstrably be disadvantageous to certain areas or persons. This Court is not a tribunal for relief from the crudities and inequities of complicated experimental economic legisla- tion \". In Saraswati Industrial Syndicate Ltd. v. Union of India, [1974] 2 SCC 630; the Court observed, \"Price-fixation is more in the nature of a legislative measure even though it may be based upon objective criteria found in a report or other material. It could not, there- fore, give rise to a complaint that a rule of natural justice has not been followed in fixing the price. Nevertheless, the criterion adopted must be reasonable. Reasonableness, for purposes of judging whether there was an \"excess of power\" or an \"arbitrary\" exercise of it, is really the demonstration of a rea- sonable nexus between the matters which are taken into account in exercising a power and the purposes of exercise of that power.\" It was also reiterated that the decision in Shree Meenakshi Mills' case was based on a special agreement between the parties and therefore, had no relevance to the question before them. In Prag Ice & Oil Mills v. Union of India, [1978] 3 SCC 459 a Constitution Bench of seven judges of this court had to consider the validity of the Mustard Oil (Price Control) Order, 1977, an Order made in exercise of the powers con- ferred upon Central Government by the Essential Commodities Act. Chandrachud, J. speaking for the court approved the observation of Beg, CJ. in Saraswati Industrial Syndicate that it was enough compliance with the Constitutional man- date if the basis adopted for price fixation was not shown to be so patently unreasonable as to be in excess of the power to fix the price. He observed \"In the ultimate analysis the mechanics of price fixation has necessarily to be left to the judgment of the Executive and unless it is patent that there is hostiled discrimination against a class of operators, the processual basis of price fixation has to be accepted in the generality of cases as valid.\" Referring to Shri Meenakshi Mills, the learned CJ. reaf- firmed the approval accorded to the statement in Secretary of Agriculture v. Central Reig Refining Company (supra) that Courts of Law could not be converted into tribunals for relief from the crudities and inequities of complicated experimental economic legislation. Panipat Sugar and Anakap- palle Society were again referred to and it was pointed out that those cases turned on the language of s. 3(3C) of the Essential Commodities Act. Premier Automobiles was consid- ered and it was affirmed that the judgment in that case could not be treated as precedent and could not afford any appreciable assistance in the decision of price fixation cases as it proceeded partly on agreement between the par- ties and partly on concessions made at the bar. Beg, CJ. who delivered a separate opinion for himself and for Desai, J. agreed that the judgment in Premier Automobiles was not to provide a precedent in price fixation case. He also reaf- firmed the proposition that price fixation was in the nature of a legislative measure and could not give rise to a com- plaint that natural justice was not observed. He indicated the indicia which led him to the conclusion that price fixation was a legislative measure. He observed: \"We think that unless, by the terms of a 'particular statute, or order, price fixation is made a quasi-judicial function for speci- fied purposes or cases, it is really legisla- tive in character in the type of control order which is now before us because it satisfies the tests of legislation. A legislative meas- ure does not concern itself with the facts of an individual case. It is meant to lay down a general rule applicable to all persons or objects or transactions of a particular kind or class. In the case before us, the Control Order applies to sales of mustard oil anywhere in India by any dealer. Its validity does not depend on the observance of any procedure to be complied with or particular types of evi- dence to be taken on any specified matters as conditions precedent to its validity. The test of validity is constituted by the nexus shown between the order passed and the purposes for which it can be passed, or in other words by reasonableness judged by possible or probable consequences.\" In New India Sugar Works v. State of Uttar Pradesh, [1981] 2 SCC 293 there was an indication though it was not expressly so stated that the question of observing natural justice did not arise in cases of price fixation. In Laxmi Khandsari v. State of Uttar Pradesh, [1981] 2 SCC 600 it was held that the Sugar Cane Control Order, 1966 was a legislative measure and therefore, rules of natural justice were not attracted. In Rameshchandra Kachardas Porwal v. State of Maharashtra, [1981] 2 SCC 722 it was observed that legislative activity did not invite natural justice and that making of a declara- tion that a certain place shall be a principal market yard for a market area under the relevant Agricultural Produce Markets Acts was an act legislative in character. The obser- vation of Magarry, J. in Bates v. Lord Hailsha, of St. Marylebone [1972] 1 WLR 1973 that the rules of natural justice do not run in the sphere of legislation, primary or delegated, was cited with approval and two well known text books writers Paul Kackson and Wades H.W.R. were also quot- ed. The former had said, \"There is no doubt that a minister, or any other body, in making legislation, for example, by statutory instrument or by law, is not subject to the rules of natural justice--Bates v. Lord Hailsham of St. Marylebone (supra)--any more than is Parliament itself; Edinburgh and Dalkeith Rv. v. Wauchope per Lord Brougham, [1842] 8 CL & F 700, 720; British Railways Board v. Pickin, [1974] 1 All ER 609. The latter had said, \"There is no right to be heard before the making of legislation, whether primary or dele- gated, unless it is provided by statutes.\" In Sarkari Sasta Anaj Vikreta Sangh v. State of Madhya Pradesh, [1981] 4 SCC 471; it was pointed out that the amendment of the Madhya Pradesh Food Stuffs Distribution Control Order was a legis- lative function and there was, therefore, no question of affording an opportunity to those who were to be affected by it. In Welcom Hotel v. State of Andhra Pradesh, [1983] 4 SCC 575 the observations of Chandrachud, CJ. in Prag Ice and Oil Mills were quoted with approval in connection with the fixation of prices of food stuffs served in restaurants. In Tharoe Mal v. Puranchand, [1978] 1 SCC 102 one of the questions was regarding the nature of the hearing to be given before imposing municipal taxes under the Uttar Pra- desh Municipalities Act, 1916. It was held, \" ....... the procedure for the imposition of the tax is legislative and not quasi- judicial ...... The right to object, howev- er, seems to be given at the stage of propos- als of the tax only as a concession to re- quirements of fairness even though the procedure is legisla- tive and not quasi-judicial.\" We mentioned that the Panipat and the Anakapalle eases were distinguished in Shree Meenakshi, and Prag Ice. Pani- pat and Anakapalle were both cases where the question was regarding the price payable to a person who was required to sell to the Government a certain percentage of the quantity of sugar produced in his mill. The Order requiring him to sell the sugar to the Government was made under s. 3(2)(f) of the Essential Commodities Act under which the Central Government was enabled to make an order requiring any person engaged in the production of any essential commodity to sell the whole or specified part of the quantity produced by him to the Government or its nominee. It will straight-away be seen that an order under s. 3(2)(f) if a specific order directed to a particular individual for the purpose of enabling the Central Government to purchase a certain quan- tity of the commodity from the person holding it. It is an order for a compulsory sale. When such a compulsory sale is required to be made under s. 3(2)(f), the question naturally arises what is the price to be paid for the commodity pur- chased? Section 3(3C) provides for the ascertainment of the price. It provides that in calculating the amount to be paid for the commodity required to be sold regard is to be had to--(a) the minimum price, if any, fixed for sugarcane by the Central Government under this section; (b) the manufac- turing cost of sugar; (c) the duty or tax, if any, paid or payable thereon; and (d) the securing of a reasonable return on the capital employed in the business of manufacturing sugar. It is further prescribed that different prices may be determined, from time to time, for different areas or for different factories or for different kinds of sugar. It is to be noticed here that the payment to be made under s. 3(3C) is not necessarily the same as the controlled price which may be fixed under s. 3(2)(c) of the Act. Section 3(2)(c) of the Act, we have already seen, enables the Cen- tral Government to make an order controlling the price at which any essential commodity may be bought or sold, if the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or in securing their equitable distribution and availability at fair prices. Section 3(3C) provides for the determination of the price to be paid to a person who has been directed by the Central Government by an Order made under s. 3(2)(c) to sell a certain quantity of an essential commodity to the Government or its nominee. While s. 3(2)(c) contemplates an Order of a general nature, s. 3(3C) contemplates a specific transaction. If the provisions of s. 3(2)(c) under which the price of an essential commo- dity may be controlled are contrasted with s. 3(3C) under which payment is to be made for a commodity require to be sold by an individual to the Government, the distinction between a legislative act and a non-legislative act will at once become clear. The Order made under s. 3(2c), which is not in respect of a single transaction, nor directed to particular individual is clearly a legislative act, while an Order made under s. 3(3C) which is in respect of a particu- lar transaction of compulsory sale from a specific individu- al is a non-legislative act. The Order made under s. 3(2)(c) controlling the price of an essential commodity may itself prescribe the manner in which price is to be fixed but that will not make the fixation of price a non-legislative activ- ity, when the activity is not directed towards a single individual or transaction but is of a general nature, cover- ing all individuals and all transactions. The legislative character of the activity is not shed and an administrative or quasi-judicial character acquired merely because guide- lines prescribed by the statutory order have to be taken into account. We may refer at this juncture to some illuminating passages from Schwrtz's book on 'Administrative Law'. He said: \"If a particular function is termed \"legisla- tive\" or \"rulemaking\" rather than \"judicial\" or \"adjudication,\" it may have substantial effects upon the parties concerned. If the function is treated as legislative in nature, there is no right to notice and hearing, unless a statute expressly requires them. If a hearing is held in accordance with a statutory requirement, it normally need not be a formal one, governed by the requirements discussed in Chapters 6 and 7. The characterization of an administrative act as legislative instead of judicial is thus of great significance.\" XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX X \"As a federal court has recently pointed out, there is no \"bright line\" between rule-making and adjudication. The most famous pre-APA attempt to explain the difference between legislative and judicial functions was made by Justice Holmes in Prentis v. Atlantic Coast Line Co. \"A judicial inquiry,\" said he, \"investigates, declares and enforces liabili- ties as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation on the other hand looks to the future and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to its power.\" The key factor in the Holmes analysis is time: a rule prescribes future patterns of conduct; a decision determines liabilities upon the basis of present or past facts.\" \"The element of applicability has been empha- sized by others as the key in differentiating legislative from judicial functions. According to Chief Justice Burger, \"Rulemaking is nor- mally directed toward the formulation of requirements having a general application to all members of a broadly identifiable class.\" An adjudication, on the other hand, applies to specific individuals or situations. Rulemaking affects the rights of individuals in the abstract and must be applied in a further proceeding before the legal position of any particular individual will be definitely affected; adjudication operates conceretly upon individuals in their individual X X capacity.\" We may now turn our attention to the two Drugs (Prices Control) Order of 1970 and 1979, both of which were made by the Central Govern- ment in exercise of its powers under s. 3 of the Essential Commodities Act. The Drugs (Prices Control) Order, 1970 defined 'Bulk Drugs' as follows: \"Bulk drugs\" means \"any unprecessed phamaceu- tical, chemical, biological and plant product or medicinal gas conforming to pharmacopocial or other standards accepted which is used as such or after being processed into formula- tions and includes an essential bulk drug.\" Bulk drugs were divided into essential bulk drugs which were included in the schedule and bulk drugs which were not so included. In the case of essential bulk drugs, paragraph 4 of the order enabled the Central Government to fix the maximum price at which such essential bulk drugs should be sold. In the case of bulk drugs, which were not included in the schedule, a manufacturer was entitled to continue to market the product at the same price at which he was market- ing the products at the time of the commencement of the order. He was required to report this price to the Central Government within two weeks of the commencement of the order and was further prohibited from increasing the price without obtaining the approval of the Central Government. A Committee on Drugs and Pharmaceutical Industry, popu- larly known as the Hathi Committee was appointed by the Government of India to enquire into the various facets, of the Drug Industry in India. One of the terms of reference was 'to examine the measures taken so far to reduce prices of drugs for the consumer, and to recommend such further measures as may be necessary to rationalise the prices of basic drugs and formulations.' The Hathi Committee noticed that 'in a country like India where general poverty and the wide disparities in levels of income between different sections existed' it was particularly important to emphasise 'the social utility of the industry and the urgent need for extending as rapidly as possible certain minimum facilities in terms of preventive and curative medicines to the large mass of people both urban and rural'. It was said, \"The concern about drug prices, therefore, really arises from the fact that many of them are essential to the health and welfare of the community; and that there is no justification for the drug industry charging prices and having a production pattern which is based not upon the needs of the community but on aggres- sive marketing tactices and created demand.\" The Government of India accepted the report of the Hathi Committee and announced in Parlia- ment the 'Statement on Drug Policy' pursuant to which the Drugs (Prices Control) Order, 1970 was repealed and the Drugs (Prices Con- trol) Order, 1979 was made. Paragraph 44 of the Statement on Drug Policy in 1978 dealt with 'pricing policy' and it may be usefully extracted here. It was as follows:- \"The Hathi Committee had recommended that a return post tax between 12 to 14% on equity that is paid up capital plus reserves, may be adopted as the basis for price fixation, depending on the importance and complexity of the bulk drug. In the case of formulations, the Hathi Committee felt that the principle of selectivity could be introduced in terms of (a) the size of the units, (b) selection of items; and (c) controlling the prices only of market leaders, in particular, of products for which price control is contemplated. The Hathi Committee considered that units (other than MRTP units) having only turnover of less than Rs.1 crore may be exempted from price control. Alternatively, all formulations (other than those marketed under generic names) which have an annual sale in the coun- try in excess of Rs.15 lakhs (inclusive of excise duty) may be subjected to price con- trol, irrespective of whether or not the total annual turnover of the unit is in excess of Rs.1 crore. The ceiling price will be deter- mined taking into account the production costs and a reasonable return for the units which are the market leaders. Yet another variant of a selectivity, according to the Hathi Commit- tee, would be to identify product groups which individually are important and which collec- tively constitute the bulk of the output of the industry. In respect of each item of this list, it would be possible to identify the leading producers who account for about 60% of the sales between them. On the basis of cost analysis in respect of those units, maximum prices may be prescribed and all other units may be free to fix their prices within this ceiling. On balance, the Hathi Committee was of the view that this particular variant selectivity may be administratively simpler.\" The Drugs (Prices Control) Order, 1979 was made pursuant to this Statement of Policy. Paragraph 2(a) of the Drugs (Prices Control) Order, 1979 defines 'bulk drug' to mean \"any substance including pharmaceutical, chemical, biological or plant product or medicinal gas conforming to pharmacological or other stand- ards accepted under the Drugs and Cosmetics Act, 1940, which is used as such or as in ingredient in any formulations.\" \"Formulation\" is defined as follows:- \"Formulation means a medicine processed out of, or containing one or more bulk drugs or drugs, with or without the use of any pharma- ceutical aids for internal or external use for, or in the diagnosis, treatment, mitiga- tion or prevention of disease in human beings or animals, but shall not include-- (i) any bona fide Ayurvedic (including Sidha) or Unani (Tibb) Systems of medicine; (ii) any medicine included in the Hom- oeopathic system of medicine; (iii) any substance to which the provi- sions of the Drugs and Cosmetics Act, 1940 (XXIII of 1940), do not apply\" The expressions \"free reserve\", \"leader price\", \"net-worth\", \"now bulk drug\", \"pooled price,\" \"pre-tax return\", \"retention price\" are defined in the following manner: \"\"Free reserve\" means a reserve created by appropriation of profits, but does not include reserves provided for contingent liability, disputed claims, goodwill, revaluation, and other similar reserves\". \"'leader price' means a price fixed by the Government for formulations specified in Category I, Category II or Category III of the Third Schedule in accordance with the provi- sions of paras. 10 and 11, keeping in view the cost of or efficiency, or both, of major manufacturers of such formulations.\" \"'net-worth' means the share capital of a company plus free reserve, if any.\" \"'new bulk drug' means a bulk drug manufac- tured within the country, for the first time after the commencement of this Order.\" \"'Pooled price' in relation to a bulk drug, means the price fixed under para 7.\" \"'pre-tax return' means profits before payment of incometax and sur-tax and includes such other expenses as do not form part of the cost of formulations.\" \"'retention price' in relation to a bulk drug means the price fixed under paras 4 and 7 for individual manufacturers, or importers, or distributors, or such bulk drugs.\" The distinction between an essential bulk drug included in the schedule and a bulk drug not so included in the sched- ule, which was made in 1970 Drugs (Prices Control) Order was abandoned in the 1979 Order. Bulk drugs were, however, broadly divided into indigenously manufactured bulk drugs, imported bulk drugs and hulk drugs which were both manufactured indigenously as also imported. Paragraph 3 of the 1979 Order enables the Government, with a view to regulating the equitable distribution of any indigenously manufactured bulk drug specified in the first or the second schedule and making it available at a fair price and after making such enquiry as it deems fit, to fix from time to time by notification in the official gazette, the maximum price at which the bulk drug shall be sold. Clause (2) of Paragraph 3 provides that while so fixing the price of a bulk drug, the Government may take into account the average cost of production of such bulk drug manufac- tured by an efficient manufacturer and allow a reasonable return on net worth. By way of an explanation efficient manufacturer is defined to mean \"a manufacturer-(i) Whose production of such bulk drug in relation to the total pro- duction of such bulk drug in the country is large, or (ii) who employs efficient technology in the production of such bulk drug.\" We have already noticed that 'net worth' is defined to mean 'the share capital of a company plus free reserve, if any'. \"Free reserve\" itself is separately de- fined. It is then prescribed by clause (3)-- \"No person shall sell a bulk drug at a price exceeding the price notified under sub-para- graph 1, plus local taxes, if any payable: provided that until the price of bulk drug is so notified, the price of such bulk drug shall be the price which prevailed immediately before the commencement of this order and the manufacture of such bulk drug at a price exceeding the price which prevailed as afore- said.\" This means that until the maximum sale price of an indige- nously manufactured bulk drug is fixed under paragraph 3 of the 1979 Order, the price fixed under paragraph 4 of the 1970 order or the price permitted under paragraph 5 of the 1970 order was to be maximum sale price. Paragraph 3(4)(a) requires a manufacturer commencing production of the bulk drug specified in the First or Second Schedule, the price of which has already been notified by the Government, not to sell the bulk drug at a price exceeding the notified price. Paragraph 3(4)(b) provides that where the price of a bulk drug has not been notified by the Government, the manufac- turer shall, within 14 days of the commencement of the the production of such bulk drug, make an application to the Government in Form I and intimate the Government the price at which he intends to sell the bulk drug and the Government may, after making such an enquiry as it thinks fit, by order, fix a provisional price at which such bulk drug shall be sold. Paragraph 4 of the 1979 order provides that notwith- standing anything contained in paragraph 3, the Government may, if it considers necessary or expedient so to do for increasing the production of an indigenously manufactured bulk drug specified in the first or second schedule, by order, fix-- \"(a) a retention price of such bulk drug, (b) a common sale price for such bulk drug taking into account the weighted average of the retention price fixed under clause (a).\" Paragraph 4 is thus in the nature of an exception to para- graph 3. It is meant to provide a fillip to individual manufacturers of bulk drugs whose production it is necessary to increase. Retention price, by its very definition per- tains to individual manufacturers. Common sale price, we take it, is the price at which manufacturers whose reten- tions are fixed may sell the bulk drug despite the maximum sale price fixed under paragraph 3. Paragraph 5 deals with the power of the Government to fix maximum sale price of new bulk drugs. Paragraph 6 ena- bles the Government to fix the maximum sale price of import- ed bulk.drugs specified in First and Second Schedules. Paragraph 7 deals with the power of the Government to fix retention price and pooled price for the sale of bulk drugs specified in the First and Second Schedules which are both indigenously manufactured and imported. Paragraph 9 empowers the Government to direct manufacturers of bulk drugs to sell bulk drugs to manufacturers of formulations. Paragraph 10 prescribes a formula for calculating the retail price of formulations. The formula is: \"R.P. = (M.C.+C.C.+P.M.+P.C.) x (1+MU)+ E.D. \"R.P.\" means retail price. \"M.C.\" means material cost and includes the cost of drugs and other pharmaceutical aids used including overages, if any, and process loss thereon in accordance with such norms as may be specified by the Government from time to time by notification in the official Gazette in this behalf. \"C.C.'? means conversion cost worked out in accordance with such norms as may be specified by the Government from time to time by notifi- cation in the official Gazettee in this be- half. \"P.M.\" means the cost of packing material including process loss thereon worked out in accordance with such norms as may be specified by the Government from time to time by notifi- cation in the official Gazette in this behalf. \"P.C.\" means packing charges worked out in accordance with such norms as may be specified by the Government from time to time by notifi- cation in the official Gazette in this behalf. \"M.U.\" means make-up referred to in para. 11. \"E.D.\" means excise duty.\" Paragraph 11 explains what 'Mark-up' means. Paragraph 12 empowers the Government to fix leader prices of formulations of categories I and II specified in the third schedule. Paragraph 13 empowers the Government to fix retail price of formulations specified in category III of third schedule. Paragraph 14 contains some general provisions regarding- prices of formulations. Paragraph 15 empowers the Government to revise prices of formulations. Paragraph 16 provides that where any manufacturer, importer or distributor of any bulk drug or formulation fails to furnish information as required under the order within the time specified therein, the Government may, on the basis of such information as may be available with it, by order, fix a price in respect of such bulk drug or formu- lation as the case may be. Paragraph 17 requires the Govern- ment to maintain the Drugs Prices Equalization Account to which shall be credited, by the manufacturer, among other items, \"the excess of the common selling price or, as the case may be, pooled price over his reten- tion price.\" It is provided that the amount credited to the Drugs Prices Equaliza- tion Account shall be spent for paying to the manufacturer, \"the shortfall between his retention price and the common selling price or as the case may be, the pooled price.\" Paragraph 27 enables any person aggrieved by any notifi- cation or order under paragraphs 3, 4, 5, 6, 7, 9, 12, 13, 14, 15 or 16 to apply to the Government for a review of the notification or order within fifteen days of the date of the publication of the notification in the official Gazette, or, as the case may be, the receipt of the order by him. Bulk drugs constituting categories I and II are enumer- ated in the First Schedule. Bulk drugs constituting category III are enumerated in the Second Schedule. Formulations constituting categories I, II and III are enumerated in the Third Schedule. The Fourth Schedule prescribes the various forms referred to in the different paragraphs of the Drugs (Prices Control) Order. Form No. 1 which is referred to in paragraphs 3(4), 5 and 8(1) is titled \"Form of application for fixation or revision of prices of bulk drug\". The sever- al columns of the Form provide for various particulars to be furnished and item 18 requires the applicant to furnish ,\"the cost of production of the bulk drug as per proforma (attached) duly certified by a practising Cost/Chartered Accountant\". The 'proforma' requires particulars of cost- data, such as, raw materials, utilities, conversion cost, total cost of production, interest on borrowings, minimum bonus, packing, selling expenses, transport charges, transit insurance charges, total cost of sales, selling price, existing price or notional or declared prices, etc. to be furnished. A note at the end of the proforma requires the exclusion from cost certain items of expenses, such as, bonus in excess of statutory minimum, bad debts and provi- sions, donations and charities, loss/gain on sale of assets, brokerage and commission, expenses not recognised by income tax authorities and adjustments relating to previous years. Shri G. Ramaswamy, learned Additional Solicitor General on behalf of the Union of India, submitted that the fixation of maximum price under paragraph 3 of the Drugs (Prices Control) Order was a legislative activity and, therefore, not subject to any principle of natural justice. He urged that relevant information was required to be furnished and was indeed furnished by all the manufacturers in the pre- scribed form as required by paragraph 3(4) of the Drugs (Prices Control) Order. This information obtained from the various manufacturers was taken into account and a report was then obtained from the Bureau of Industrial Costs and Prices, a high-powered expert body specially constituted to undertake the study of industrial cost struc- tures and pricing problems and to advise the Government. It was only thereafter that notifications fixing the prices were issued. He further submitted that paragraph 27 of the Central Order gave a remedy to the manufacturers to seek a review of the order fixing the maximum price under paragraph 3. The review contemplated by paragraph 27 in so far as it related to the notification under paragraph 3, it was sub- mitted by the learned Additional Solicitor General, did not partake the character of a judicial or quasi-judicial pro- ceeding. He urged that the manufacturers had invoked the remedy by way of review, but before the applications for review could be dealt with, they rushed to the court with the writ petitions out of which the appeal and the special leave petitions arise. He urged that the Government had always been ready and wilting to give a proper hearing to the parties and in fact gave them a heating in connection with their review applications. The grievance of the manu- facturers in the writ petitions that they were not furnished the details of the basis of the price fixation was not correct since full information was furnished at the time of the hearing of the review applications when the matter underwent thorough and detailed discussion between the parties and the Government as well as the Bureau of Indus- trial Costs and Prices. The submission of Shri Anil Diwan, learned counsel for the respondents was that unlike other price control legisla- tions, the Drugs (Prices Control) Order ,was designed to induce better production by providing for a fair return to the manufacturer. Reference was made to the Hathi Committee report which had recommended a return of 12 to 14% post tax return on equity, that is, paid up capital plus reserves and the 'Statement on Drug Policy' which mentioned that ceiling prices may be determined by taking into account production costs and a reasonable return. Great emphasis was laid on the second clause of paragraph 3 of the 1979 Order which provides that in fixing the price of a bulk drug, the Gov- ernment may take into account the average cost of production of such bulk drug manufactured by an efficient manufacturer and allow a reasonable return on networth. It was submitted that the provision for an enquiry preceding the determina- tion of the price of a bulk drug, the prescription in para- graph 3 clause 2 that the average cost of production of the drug manufactured by an efficient manufacturer should be taken into account and that a reasonable return on networth should be allowed and the provision for a review of the order determining the price, established that price-fixation under the Drugs (Prices Control) Order 2979 was a quasi- judicial activity obliging the observance of the rules of natural justice. The suggestion of the learned counsel was that the nature of the review under paragraph 27 was so apparently quasi-judicial and that the need to know the reasons for the order sought to be reviewed was so real if the manufacturer was effectively to exercise his right to seek the quasijudicial remedy of review, that by necessary implication it became obvious that the Order fixing the maximum price must be considered to be quasi- judicial and not legislative in character. The provision for enquiry in the first clause of paragraph 3 and the prescrip- tion of the matters to be taken into account in the second clause of paragraph 3 further strengthened the implication, according to the learned counsel. It was contended that in any case, whatever be the nature of the enquiry and the order contemplated by paragraph 3, the review for which provision made by paragraph 27 was certainly of a quasi- judicial character and, therefore, it was necessary that the manufacturers should be informed of the basis for the fixa- tion of the price and furnished with details of the same in order that they may truly and effectively avail themselves of the remedy of review. If that was not done, the remedy would become illusory. It was argued with reference to various facts and figures that the price had been fixed in an arbitrary manner and the Government was not willing to disclose the basis on which the prices were fixed on the pretext that it may involve disclosure of matters of confi- dential nature. It was stated that the applications of the manufacturers for review of the notifications fixing the prices had not been disposed of for years though time was really of the very essence of the matter. The prices of formulations were dependent on the prices of drugs and it was not right that prices of formulations should have been fixed even before the applications for review against the notifications fixing the price of bulk drugs were disposed of. It was suggested that the delay in disposing of the review applications had the effect of rendering the original notifications fixing the prices unreal and out of date and liable to be struck down on that ground alone. We are unable to agree with the submissions of the learned counsel for the respondents either with regard to the applicability of the principles of natural justice or with regard to the nature and the scope of the enquiry and review contemplated by paragraphs 3 and 27 while making our preliminary observations, we pointed out that price fixation is essentially a legislative activity though in rare circum- stances, as in the case of a compulsory sale to the Govern- ment or its nominee, it may assume the character 'of an administrative or quasijudicial activity. Nothing in the scheme of the Drugs (Prices Control) Order induces us to hold that price fixation under the Drugs (Prices Control) Order is not a legislative activity, but a quasi-judicial activity which would attract the observance of the princi- ples of natural justice. Nor is there anything in the scheme or the provisions of the Drugs (Prices Control) Order which otherwise contemplates the observance of any principle of natural justice or kin- dred rule, the non-observance of which would give rise to a cause of action to a suitor. What the order does contemplate however is 'such enquiry' by the Government 'as it thinks fit'. A provision for 'such enquiry' as it thinks fit' by a subordinate legislating body, we have explained earlier, is generally an enabling provision to facilitate the subordi- nate legislating body to obtain relevant information from any source and it is not intended to vest any right in any body other than the subordinate legislating body. In the present case, the enquiry contemplated by paragraph 3 of Drugs (Prices Control) Order is to be made for the purposes of fixing the maximum price at which a bulk drug may be sold, with a view to regulating its equitable distribution and making it available at a fair price. The primary object of the enquiry is to secure the bulk drug at a fair price for the benefit of the ultimate consumer an object designed to fulfil the mandate of Art. 39(b) of the Constitution. It is primarily from the consumer public's point of view that the Government is expected to make its enquiry. The need of the consumer public is to be ascertained and making the drug available to them at a fair price is what it is all about. The enquiry is to be made from that angle and directed towards that end. So, information may be gathered from whatever source considered desirable by the Government. The enquiry, obviously is not to be confined to obtaining infor- mation from the manufacturers only and indeed must go be- yond. However, the interests of the manufacturers are not to be ignored. In fixing the price of a bulk drug, the Govern- ment is expressly required by the Order to take into account the average cost of production of such bulk drug manufac- tured by 'an efficient manufacturer' and allow a reasonable return on 'net worth'. For this purpose too, the Government may gather information from any source including the manu- facturers. Here again the enquiry by the Government need not be restricted to 'an efficient manufacturer' or some manu- facturers; nor need it be extended to all manufacturers. What is necessary is that the average cost of production by 'an efficient manufacturer' must be ascertained and a rea- sonable return allowed on 'net worth'. Such enquiry as it thinks fit is an enquiry in which information is sought from whatever source considered necessary by the enquiring body and is different from an enquiry in which an opportunity is required to be given to persons likely to be affected. The former is an enquiry leading to a legislative activity while the latter is an enquiry which ends in an administrative or quasi-judicial decision. The enquiry contemplated by para- graph 3 of the Drug (Prices Control) Order is an enquiry of the former charac- ter. The legislative activity being a subordinate or dele- gated legislative activity, it must necessarily comply with the statutory conditions if any, no more and no less, and no implications of natural justice can be read into it unless it is a statutory condition. Notwithstanding that the price fixation is a legislative activity, the subordinate legisla- tion had taken care here to provide for a review. The review provided by paragraph 27 of the order is akin to a post decisional hearing which is sometimes afforded after the making of some administrative orders, but not truly so. It is a curious amalgam of a hearing which occasionally precedes a subordinate legislative activity such as the fixing of municipal rates etc. that we mentioned earlier and a post-decision hearing after the making of an administra- tive or quasi-judicial order. It is a hearing which follows a subordinate legislative activity intended to provide an opportunity to affected persons such as the manufacturers, the industry and the consumer public to bring to the notice of the subordinate legislating body the difficulties or problems experienced or likely to be experienced by them consequent on the price fixation, whereupon the Government may make appropriate orders. Any decision taken by the Government cannot be confined to the individual manufacturer seeking review but must necessarily affect all manufacturers of the bulk drug as well as the consumer public. Since the maximum price of a bulk drug is required by paragraph 3 to be notified any fresh decision taken in the proceeding for review by way of modification of the maximum price has to be made by a fresh notification fixing the new maximum price of the bulk drug. In other words, the review if it is fruitful must result in fresh subordinate legislative activity. The true nature of the review provided by paragraph 27 in so far as it relates to the fixation of maximum price of bulk drugs under paragraph 3 leader price and prices of formulations under paragraphs 12 and 13 is hard to define. It is diffi- cult to give it a label and to fit it into a pigeon-hole, legislative, administrative or quasi-judicial. Nor is it desirable to seek analogies and look to distant cousins for guidance. From the scheme of the Control Order and the context and content of paragraph 27, the Review in so far as it concerns the orders under paragraph 3, 12 and 13 appears to be in the nature of a legislative review of legislation, or more precisely a review of subordinate legislation by a subordinate legislating body at the instance of an aggrieved person. Once we have ascertained the nature and character of the review, the further question regarding the scope and extent of the review is not very difficult to answer. The reviewing authority has the fullest freedom and discretion to prescribe its own procedure and con- sider the matter brought before it so long as it does not travel beyond the parameters prescribed by paragraph 3 in the case of a review against an order under paragraph 3 and the respective other paragraphs in the case of other orders. But whatever procedure is adopted, it must be a procedure tuned to the situation. Manufacturers of any bulk drug are either one or a few in number and generally they may be presumed to be well informed persons, well able to take care of themselves, who have the assistance of Accountants, Advocates and experts to advise and espouse their cause. In the context of the Drug industry with which we are concerned and in regard to which the Control Order is made we must proceed on the basis that the manufacturers of bulk drugs are generally persons who know all that is to be known about the price fixed by the Government. From the legislative nature of the activity of the Government, it is clear that the Government is under no obligation to make any disclosure of any information received and considered by it in making the order but in order to render effective the right to seek a review given to an aggrieved person we think that the Government, if so requested by the aggrieved manufacturer is under an obligation to disclose any relevant information which may reasonably be disclosed pertaining to 'the average cost of production of the bulk drug manufactured by an efficient manufacturer' and 'the reasonable return on net worth'. For example, the manufacturer may require the Gov- ernment to give information regarding the particulars de- tailed in Form No. 1 of the Fourth Schedule which have been taken into account and those which have been excluded. The manufacturer may also require to be informed the elements which were taken into account and those which were excluded in assessing the 'free reserves' entering into the calcula- tion of 'net worth'. These particulars which he may seek from the Government are mentioned by us only by way of illustration. He may seek any other relevant information which the Government shall not unreasonably deny. That we think is the nature and scope of the review contemplated by Paragraph 27 in relation to orders made under Paragraphs 3, 12 and 13. On the question of the scope of a Review, the learned counsel for the respondents invited our attention to Vrajlal Manilal & Co. v. Union of India & Anr., [1964] 7 SCR 97; Shivaji Nathubhai v. Union of India & Ors., [1960] 2 SCR 775; Maneka Gandhi, [1978] 2 SCR 621; Swadeshi Cotton Mills, [1981] 2 SCR 533; and Liberty Oil Mills., [1984] 3 SCR 676. We are afraid none of these cases is of any assistance to the correspondence since the court was not concerned in any of those cases with a review of subordinate legislation by the subordinate legislating body. In Vrajlal Manilal & Co. v. Union of India & Anr. (supra) the court held that the Union of India when dispos- ing of an application for review under Rule 59 of the Mines Concession Rules functioned as a quasi-judicial authority and was bound to observe the principles of natural justice. The decision rendered without disclosing the report of the State Government and without affording reasonable opportuni- ty to the appellants to present their case was contrary to natural justice was therefore, void. In ShivaIi Nathubhai v. Union of India & Ors., (supra) it was decided by the court that the power of review granted to the Central Government under Rule 54 of the Mineral Concession Rules required the authority to act judicially and its decision would be a quasi-judicial act and the fact that Rule 54 gave power to the Central Government to pass such order as it may deem 'just and proper' did not negative the duty to act judicial- ly. In Maneka Gandhi's case where Bhagwati, J. while ex- pounding on natural justice pointed out that in appropriate cases where a pre-decisional hearing was impossible, there must atleast be a post-decisional hearing so as to meet the requirement of the rule audi alteram partem. In Swadeshi Cotton Mills, it was observed that in cases where owing to the compulsion of the fact situation or the necessity of taking speedy action, no pre-decisional hearing is given but the action is followed soon by a full post-decisional hear- ing to the person affected, there is in reality no exclusion of the audi alteram partem rule. It is no adaptation of the rule to meet the situational urgency. In Liberty Oil Mills v. Union of India, (supra) the question arose whether clause 8B of the Import Control Order which empowered the Central Government or the Chief Controller to keep in abeyance applications for licences or allotment of imported goods where any investigation is pending into an imported goods where any investigation is pending into an allegation men- tioned in clause 8 excluded the application of the princi- ples of natural justice. The court pointed out that it would be impermissible to interpret a statutory instrument to exclude natural justice unless the language of the instru- ment left no option to the court. As we said, these cases have no application to a review of subordinate legislation by the subordinate legislating body at the instance of a party. We mentioned that the price fixed by the Government may be questioned on the ground that the considerations stipu- lated by the order as relevant were not taken into account. It may also be questioned on any ground on which a subordi- nate legislation may be questioned, such as, being contrary to constitutional or other statutory provisions. It may be questioned on the ground of a denial of the right guaranteed by Art. 14 if it is arbitrary, that is, if either the guidelines prescribed for the determination are arbitrary or if, even though the guidelines are not arbitrary, the guidelines are worked in an arbitrary fashion. There is no question before us that paragraph 3 prescribes any arbitrary guideline. It was, however, submitted that the guidelines were not adhered to and that facts and figures were arbitrarily assumed. We do not propose to delve into the question whether there has been any such arbitrary assumption of facts and figures. We think that if there is any grievance on that score, the proper thing for the manufacturers to do is bring it to the notice of the Government in their applications for review. The learned counsel argued that they were unable to bring these facts to the notice of the Government as they were not furnished the basis on which the prices were fixed. On the other hand, it has been pointed out in the counter-affida- vits filed on behalf of the Government that all necessary and required information was furnished in the course of the hearing of the review applications and. there was no justi- fication for the grievance that particulars were not fur- nished. We are satisfied that the procedure followed by the Government in furnishing the requisite particulars at the time of the hearing of the review applications is sufficient compliance with the demands of fair play in the case of the class of persons claiming to be affected by the fixation of maximum price under the Drugs (Prices Control) Order. As already stated by us, manufacturers of bulk drugs who claim to be affected by the Drugs (prices Control) Order, belong to a class of persons who are well and fully informed of every intricate detail and particular which is required to be taken into account in determining the price. In most cases, they are the sale manufacturers of the bulk drug and even if they are not the sole manufacturers, they belong to the very select few who manufacture the bulk drug. It is impossible to conceive that they cannot sit across the table and discuss item by item with the reviewing authority unless they are furnished in advance full details and particulars. The affidavits filed on behalf of the Union of India show that the procedure which is adopted in hearing the review applications is to discuss across the table the various items that have been taken into account. We do not consider that there is anything unfair in the procedure adopted by the Government. If necessary it is always open to the manu- facturers to seek a short adjournment of the hearing of the review application to enable them to muster more facts and figures on their side. Indeed we find that the hearing given to the manufacturers is often protected. As we said we do not propose to examine this ques- tion as we do not want to constitute ourselves into a court of appeal over the Government in the matter of price fixa- tion. The learned counsel argued that there were several patent errors which came to light during the course of the hearing in the High Court. He said that obsolete quantita- tive usages had been taken into consideration, proximate cost data had been ignored and the data relating to the year ending November, 1976 had been adopted as the basis. It was submitted that there were errors in totalling, errors in the calculation of prices of utilities, errors in the calcula- tion of net-worth and many other similar errors. As we pointed out earlier, these are all matters which should legitimately be raised in the review application, if there is any substance in them. These are not matters for investi- gation in a petition under Art. 226 of the Constitution or under Art. 32 of the Constitution. Despite the pressing invitation of Shri Diwan to go into facts and figures and his elaborate submissions based on facts and figures, we have carefully and studiously refrained from making any reference to such facts and figures as we consider it out- side our province to do so and we do not want to set any precedent as was supposed to have been done in Premier Automobiles though it was not so done and, therefore, needed explanation in later cases. One of the submissions of Shri Diwan was that in calcu- lating \"net-worth\" the cost of new works in progress and the amount invested outside the business were excluded from 'free reserves' and that such exclusion could not be justi- fied on any known principle of accountancy. We think that the question has to be decided with reference to the defini- tion of 'free reserve' in paragraph 2(g) of the Control Order and not on any assumed principle of accountancy. This is also a question which may be raised before the Government in the review application. Referring to the 'proforma' attached to Form No. 1 of the Fourth Schedule in which are set out several items which have to be taken into account in assessing the cost of production, the learned counsel at- tacks the notes at the end of Item No. 14 which mentions the various items of expenses to be excluded in ascertaining the cost. The notes is as follows:- \"Notes:-(i) Items of expenses to be excluded from costs-- a) Bonus in excess of statutory minimum. (b) Bad debts and provisions. (c) Donations and charities. (d) Loss/Gain on sale of assets. (e) Brokerage and commission. (f) Expenses not recognized by Income-tax authorities (salary/prequisities, advertisements, etc.). (g) Adjustments relating to previous years.\" In particular, he argued that Item (a) 'bonus in excess of statutory minimum' should not have been excluded so also items of expenditure coming under the other heads (b) to (g) which had been allowed by Income-tax authorities as legiti- mate expenses. His submission was that where bonus in excess of statutory minimum was payable under the provisions of the Bonus Act there was no option left to the manufacturer not to pay the excess bonus. Similarly where expenses have been legitimately incurred and allowed by Income-tax authorities, there was no justification for excluding those items of expenditure from the cost. We do not agree with the submis- sion. It was open to the subordinate legislating body to prescribe and adopt its own mode of ascertaining the cost of production and the items to be included and excluded in so doing. The subordinate legislating body was under no obliga- tion to adopt the method adopted by the Income-tax authori- ties in allowing expenses for the purpose of ascertaining income and assessing it. There may be many items of business expenditure which may be allowed by Income-tax authorities as legitimate expenses but which can never enter the cost of production. So long as the method prescribed and adopted by the subordinate legislating body is not arbitrary and op- posed to the principal statutory provisions, it cannot be legitimately questioned. Another submission of the learned counsel relating to the norms for conversion costs, packing charges and process loss of raw materials and packing mate- rials required to the notified for the purpose of calculat- ing retail prices of formulations. The argument, for exam- ple, was that there should be a more scientific formula in regard to conversion cost and not, as was done, so many rupees and paise per thousand capsules or one litre of liquid. We do not agree with the submission. It is open to the subordinate legislating authority to adopt a rough and ready but otherwise not unreasonable formula rather than a needlessly intricate so-called scientific formula. We are unable to say that the subordinate legislating authority acted unreasonably in prescribing the norms in the manner it has done. While on the question on formulations, we would like to refer to the \"Oration\" of Dr. N.H. Antia at the 24th Annual Convocation of the National Academy of Medical Sciences where he posed the question: \"Why do we produce 60,000 formulations of drugs worth Rs.2,500 crores which reach only 20% of the population when WHO recommends only 258 drugs and Rs.750 crores worth would suf- fice for all our people if used in an ethical manner?\" A general submission of the learned counsel was that the price of formulations should not have been prescribed until the review application filed by the manufacturer in regard to the patent bulk drugs was disposed of. He submitted that the price of a formulation was dependant on the price of the bulk drug and it was, therefore, not right to fix the price of formulation when the price of bulk drug was in question in the review application and there was a prospect of the price of the bulk drug being increased. We do not see any force in the submission. We think that it is the necessary duty of the Government to proceed to fix the retail price of a formulation as soon as the price of the parent bulk drug is fixed. Price fixation of a formulation is no doubt de- pendant on the price of the bulk drug, but it is not to await the result of a review application which in the end may turn out to be entirely without substance. If a review application is allowed and the price of the bulk drug is raised and if in the meanwhile, the formulation had been ordered to be sold at a low price, it may result in consid- erable loss to the manufacturer. But on the other hand, if the review application turns out to be entirely without substance and has to be rejected and if in the meanwhile the formulation is allowed to be sold at a higher price, the consumer public suffers. Thus, the ups and downs of commerce are inevitable and it is not possible to devise a fool proof system to take care of every possible defect and objection. It is certainly not a matter at which the court could take a hand. All that the court may do is to direct the Government to dispose of the review application expeditiously according to a time-bound programme. All that the Government may do is to dispose of the review application with the utmost expedi- tion. But as we perceive the public interest, it is neces- sary that the price of formulation should be fixed close on the heels of the fixation of bulk drug price. Another submission of Shri Diwan was that there was considerable delay in the disposal of the review applica- tions by the Govern- ment and that even now no orders had been passed in several cases. Accordingly to the learned counsel, the very delay in the disposal of review applications was sufficient to viti- ate the entire proceeding and scheme of price fixation. According to the learned counsel, the price of a bulk drug is dependant on many variable factors which keep changing very fast. If time is allowed to lapse whatever price is fixed, it soon becomes out of date. If review applications are not disposed of expeditiously the notifications fixing the prices must be struck down as having become obsolete. It is difficult to agree with these propositions. It is true that the price of a bulk drug is dependent on innumerable variables. But it does not follow that the notification fixing the maximum price must necessarily be struck down as obsolete by the mere passage of time. We agree that applica- tions for review must be dealt with expeditiously and when- ever they are not so dealt with, the aggrieved person may seek a mandamus from the court to direct the Government to deal with the review application within a time framework. We notice that in all these matters, the High Court granted stay of implementation of the notifications fixing the maximum prices of bulk drugs and the retail prices of formulations. We think that in matter of this nature, where prices of essential commodities are fixed in order to main- tain or increase supply of the commodities or for securing the equitable distribution and availability at fair prices of the commodity, it is not right that the court should make any interim order staying the implementation of the notifi- cation fixing the prices. We consider that such orders are against the public interest and ought not to be made by a court unless the court is satisfied that no public interest is going to be served. In the present case, on ex-parte interim order was made on April 20, 1981 in the following terms: \"In the meanwhile on the petitioners' giving an undertakings to maintain prices both for bulk and formulation, as were prevailing prior to the impugned notification we stay implemen- tation of the impugned bulk drug prices as well as formulation prices.\" Thereafter on November 25, 1981, a further order was made to the following effect: \"After hearing learned counsel and with their consent, and arrangement has been worked out as on interim measure. We, there- fore, confirm till further orders the interim order made by us on April 20, 1981. The terms of the said order, that is on the undertaking given on behalf of the petitioners to maintain status quo on the prices prevail- ing prior to the issue of the impugned notifi- cation, the petitioners, through their counsel further given an undertaking to this court that, in case the petition is dismissed and the rule is discharged, the petitioners shall within eight weeks of the dismissal of the petition by this court, deposit in this court the difference in the prices of the formula- tions in question for being ...... equaliza- tion account. The petitioners, through their counsel further given an undertaking that in this court the petitioners would not contend or challenge the said amount if deposited, is not liable to be deposited under any law whatsoever. It is made clear that the under- taking is without prejudice to the petition- ers' right to take appropriate directions from the Supreme Court if so advised in this re- gard.\" No doubt the order as made on November 25, 1981 has the manufacturers On terms, but the consumer public has been left high and dry. Their interests have in no way been taken care of. In matters of fixation of price, it is the interest of the consumer public that must come first and any interim order must take care of that interest. It was argued by the learned counsel that the undertaking given by the parties lapsed with the disposal of the writ petition by the High Court and that it could no longer be enforced. We do not agree with this submission. Apart from the fact that an appeal is ordinarily considered to be a continuation of the original proceeding, in the present case, we notice that further orders of the Supreme Court were also in contempla- tion and such further orders could only be if appeals were preferred to the Supreme Court. We do not think that there was any doubt in anyone's mind that the matter would be taken up in appeal to the Supreme Court whichever way the writ petitions were decided. We are of the view that the undertakings given by the parties in the present cases were intended to and do continue to subsist. On the conclusions arrived at by us we have no doubt that the appeal must be allowed and the writ petition in the High Court dismissed. However, we think that it is necessary to give a direction to the Government to dispose of the review applications after giving a notice of hearing to the manufacturer. The hearing may be given within two months from today and the review application disposed of within two weeks after the conclusion of the hearing. Any information sought by the manufacturer may be given to him at the hearing in terms of what we have said in the judgment. The Union of India is entitled to the costs of the appeal and the writ petition in the High Court. It appears that although several writ petitions filed by different manufacturers were disposed of by the High Court by a common judgment, the Union of India filed an appeal within the prescribed period of limitation against one of the manufacturers, Cynamide India Limited only. This was apparently done under some misapprehension that it would be enough if a single appeal was filed. Later when it was realized that separate appeals were necessary, the Union of India filed petitions for special leave to appeal against the other manufacturers also. As these petitions were filed beyond the prescribed period of limitation, petitions for condoning the delay in filing the petitions for special leave to appeal had to be and were filed. These applications are strenuously opposed by the manufacturers who contend the ordinary rule which is enforced in cases of delay namely that everyday's delay must be properly explained should also be rigorously enforced against the Government. It is con- tended that the Government is a well verse litigant as compared with private litigants and even if there is justi- fication of adopting a liberal approach in condoning delay in the case of private litigants there was no need to adopt such approach in the case of the Government. In cases like the present where parties have acted on the assumption that no appeals had been filed against them and have proceeded to arrange their affairs accordingly it would be unjust to condone the delay in filing the appeals at the instance of the Government. Though we see considerable force in the submission of Shri Diwan, we think that the circumstances of the instant cases do justify the exercise of our discretion to condone the delay. Two important features have weighed with us in condoning the delay. One is that all the writ petitions were disposed of by a common judgment and an appeal had been filed in the principal case. The other is that it is a 'matter of serious concern to the public inter- est. We, therefore, condone the delay, grant special leave in all the petitions for special leave and direct the ap- peals to be listed for hearing on May 1, 1987. P.S.S. Appeal allowed.",
        "1992267": "REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. OF 2011 (Arising out of Special Leave Petition (C) No.8939/10 Dev Sharan & Ors. ...Appellant(s) - Versus - State of U.P. & Ors. ...Respondent(s) With CIVIL APPEAL NO. OF 2011 (Arising out of Special Leave Petition (C) No.10993/10 Babu Ram Dixit ...Appellant(s) - Versus - State of U.P. & Ors. ...Respondent(s) J U D G M E N T GANGULY, J. 1. Leave granted. 2. These appeals have been preferred from the judgment and order of the High Court dated 25.11.2009 in Writ Petitions (Civil) No.46457/2009. 3. The appellants challenge the acquisition of their agricultural lands by the State of Uttar Pradesh for the construction of the district jail of Shahjahanpur. The appellants themselves are bhumidar with transferable rights and are residents of village Murchha, tehsil Puwayan in the district of Shahjahanpur, Uttar Pradesh. 4. The State of Uttar Pradesh vide its office memorandum dated 25.10.2004 constituted a committee under the Chairmanship of the Hon'ble Minister of Revenue to suggest its recommendations for transfer of prisons situated in the congested areas of various districts. After conducting its second and final meeting on 10th January, 2005, the said committee recommended to the State Government the shifting of the district jails from congested areas to outside the city limits within the district. As per the schedule, this shifting was to be done in two phases: st phase 1. District Jail, Shahjahanpur; 2. District Jail, Azamgarh; 3. District Jail, Jaunpur; and 4. District Jail, Moradabad. nd phase 1. District Jail, Badaun; 2. District Jail, Varanasi; 3. District Jail, Barielly; and 4. District Jail, Muzaffarnagar. 5. The existing district jail of Shahjahanpur, constructed in 1870, was one of the oldest and required shifting to a new premises. The Government case is that the district jail is located in a densely populated area of the city and is overcrowded, housing as many as 1869 prisoners, while having a capacity of only 511. 6. Thereafter, the State Government constituted a committee under the Chairmanship of Chief Secretary, Government of U.P. vide office memorandum dated 12.9.2007 to evaluate and consider the shifting of prisons identified to be shifted in the first phase. Prisons in the districts of Lucknow, Moradabad were added to the list. This committee was also to evaluate and recommend the means for modernisation of existing old prisons. In its meeting dated 10.10.2007 the committee recommended that a Detailed Project Report (DPR) be prepared by the Rajkiya Nirman Nigam, and that acquisition of lands for shifting of the prisons be done on a priority basis. 7. These recommendations were accepted by the State Government vide the approval of the cabinet dated 7.12.2007. Following this decision, the Director General of Prisons (Administration and Reforms), Uttar Pradesh, vide letter dated 04.06.2008, requested the District Magistrate, Shahjahanpur to send all the relevant records to the State Government for publication of notification under Sections 4(1) and 17 of the Land Acquisition Act, 1894 (hereinafter `the Act'). The land suggested for such acquisition by the Divisional Land Utility Committee was one admeasuring 25.89 hectares (63.93 acres) in village Morchha, tehsil Puwayan in the district of Shahjahanpur. 8. Thereafter, the District Magistrate, Shahjahanpur forwarded the proposal to the Commissioner and Director, Directorate of Land Acquisition (Revenue Board, Uttar Pradesh), for the issuance of notifications under Sections 4(1) and 17 of the Act, which in turn approved of it and further forwarded the recommendation to the State Government, vide letter dated 2.07.2008. 9. Thus, the State Government issued notifications under Sections 4(1) and 17 on 21.08.2008. However, the provisions of Section 5A inquiry were dispensed with. The State Government explained that this was done in view of the pressing urgency in the matter of construction of the jails. 10. Being aggrieved by the aforesaid notifications, the appellants moved a writ petition before the High Court under Article 226 of the Constitution of India. The High Court in its decision dated 25.11.2009 refused to interfere with the selection of the site for the construction of the jail premises on the ground that it was not required to do so unless it found the selection of the site was wholly arbitrary. The High Court also approved the invoking of emergency provisions under Section 17 of the Act as per the guidelines given in Essco Fabs Private Limited and another vs. State of Haryana and another (2009) 2 SCC 377. Having thus stated, the High Court dismissed the writ petition. 11. Before this Court the appellants broadly raised the following arguments: 1. Whether or not the State Government was justified in acquiring the said pieces of fertile agricultural land, when there were alternative sites of unfertile banjar land available? 2. Whether or not the State Government was justified in dispensing with the inquiry which is mandated to be conducted under Section 5A of the Act, especially when one year elapsed between the notifications under Section 4 and the one under Section 6. They further stated that the High Court had erred insofar as it upheld the factum of urgency in the absence of a categorical finding, an enquiry under Section 5A would have been detrimental to public interest. 12. It was urged that it was clear from the counter of the respondent that the contemplation of a new prison was under consideration of the State Government for several years. Committee was formed, matter was discussed at a leisurely pace at various levels and there is no material fact to justify the abridgement of the appellants' right of raising an objection to acquisition and of a hearing under Section 5A of the Act. 13. This Court finds a lot of substance in the contentions of the appellants. 14. In connection with land acquisition proceeding whenever the provision of Section 17 and its various sub-sections including Section 17(4) is used in the name of taking urgent or emergent action and the right of hearing of the land holder under Section 5A is dispensed with, the Court is called upon to consider a few fundamentals in the exercise of such powers. 15. Admittedly, the Land Acquisition Act, a pre-Constitutional legislation of colonial vintage is a drastic law, being expropriatory in nature as it confers on the State a power which affects person's property right. Even though right to property is no longer fundamental and was never a natural right, and is acquired on a concession by the State, it has to be accepted that without right to some property, other rights become illusory. This Court is considering these questions, especially, in the context of some recent trends in land acquisition. This Court is of the opinion that the concept of public purpose in land acquisition has to be viewed from an angle which is consistent with the concept of a welfare State. 16. The concept of public purpose cannot remain static for all time to come. The concept, even though sought to be defined under Section 3(f) of the Act, is not capable of any precise definition. The said definition, having suffered several amendments, has assumed the character of an inclusive one. It must be accepted that in construing public purpose, a broad and overall view has to be taken and the focus must be on ensuring maximum benefit to the largest number of people. Any attempt by the State to acquire land by promoting a public purpose to benefit a particular group of people or to serve any particular interest at the cost of the interest of a large section of people especially of the common people defeats the very concept of public purpose. Even though the concept of public purpose was introduced by pre- Constitutional legislation, its application must be consistent with the constitutional ethos and especially the chapter under Fundamental Rights and also the Directive Principles. 17. In construing the concept of public purpose, the mandate of Article 13 of the Constitution that any pre-constitutional law cannot in any way take away or abridge rights conferred under Part-III must be kept in mind. By judicial interpretation the contents of these Part III rights are constantly expanded. The meaning of public purpose in acquisition of land must be judged on the touchstone of this expanded view of Part-III rights. The open-ended nature of our Constitution needs a harmonious reconciliation between various competing principles and the overhanging shadows of socio-economic reality in this country. 18. Therefore, the concept of public purpose on this broad horizon must also be read into the provisions of emergency power under Section 17 with the consequential dispensation of right of hearing under Section 5A of the said Act. The Courts must examine these questions very carefully when little Indians lose their small property in the name of mindless acquisition at the instance of the State. If public purpose can be satisfied by not rendering common man homeless and by exploring other avenues of acquisition, the Courts, before sanctioning an acquisition, must in exercise of its power of judicial review, focus its attention on the concept of social and economic justice. While examining these questions of public importance, the Courts, especially the Higher Courts, cannot afford to act as mere umpires. In this context we reiterate the principle laid down by this Court in Authorised Officer, Thanjavur and another vs. S. Naganatha Ayyar and others reported in (1979) 3 SCC 466, wherein this Court held: \"......It is true that Judges are constitutional invigilators and statutory interpreters; but they are also responsive and responsible to Part IV of the Constitution being one of the trinity of the nation's appointed instrumentalities in the transformation of the socio- economic order. The judiciary, in its sphere, shares the revolutionary purpose of the constitutional order, and when called upon to decode social legislation must be animated by a goal-oriented approach. This is part of the dynamics of statutory interpretation in the developing countries so that courts are not converted into rescue shelters for those who seek to defeat agrarian justice by cute transactions of many manifestations now so familiar in the country and illustrated by the several cases under appeal. This caveat has become necessary because the judiciary is not a mere umpire, as some assume, but an activist catalyst in the constitutional scheme.\" 19. In other words public purpose must be viewed through the prism of Constitutional values as stated above. 20. The aforesaid principles in our jurisprudence compel this Court to construe any expropriartory legislation like the Land Acquisition Act very strictly. 21. The judicial pronouncements on this aspect are numerous, only a few of them may be noted here. 22. In DLF Qutab Enclave Complex Educational Charitable Trust vs. State of Haryana and Ors. - (2003) 5 SCC 622, this Court construed the statute on Town Planning Law and held \"Expropriatory statute, as is well known, must be strictly construed.\" (See para 41 page 635). 23. The same principle has been reiterated subsequently by a three-Judge Bench of this Court in State of Maharashtra and Anr. vs. B.E. Billimoria and Ors. - (2003) 7 SCC 336 in the context of ceiling law. (See para 22 at page 347 of the report). 24. These principles again found support in the decision of this Court in Chairman, Indore Vikas Pradhikaran vs. Pure Industrial Coke and Chemicals Ltd. and Ors. - (2007) 8 SCC 705, wherein this Court construed the status of a person's right to property after deletion of Article 19(1)(f) from Part III. By referring to various international covenants, namely, the Declaration of Human and Civic Rights, this Court held that even though right to property has ceased to be a fundamental right but it would however be given an express recognition as a legal right and also as a human right . 25. While discussing the ambit and extent of property right, this Court reiterated that expropriatory legislation must be given strict construction. (See para 53 to 57 at pages 731 to 732 of the report) 26. In the background of the aforesaid discussion, this Court proceeds to examine the scope of a person's right under Section 5A of the Act. 27. Initially, Section 5A was not there in the Land Acquisition Act, 1894 but the same was inserted long ago by the Land Acquisition (Amendment) Act, 1923 vide Section 3 of Act 38 of 1923. 28. The history behind insertion of Section 5A, in the Act of 1894 seems to be a decision of the Division Bench of Calcutta High Court in J.E.D. Ezra vs. The Secretary of State for India and ors reported in 7 C. W. N. 249. In that case, the properties of Ezra were sought to be acquired under the pre amended provision of the Act for expansion of the offices of the Bank of Bengal. In challenging the said acquisition, it was argued that the person whose property is going to be taken away should be allowed a hearing on the principles of natural justice. However the judges found that there was no such provision in the Act. (see p. 269) 29. In order to remedy this shortcoming in the Act of 1894, an amendment by way of incorporation of Section 5A was introduced on 11th July, 1923. The Statement of Objects and Reasons for the said Amendment is as follows: \"The Land Acquisition Act I of 1894 does not provide that persons having an interest in land which it is proposed to acquire, shall have the right of objecting to such acquisition; nor is Government bound to enquire into and consider any objections that may reach them. The object of this Bill is to provide that a Local Government shall not declare, under section 6 of the Act, that any land is needed for a public purpose unless time has been allowed after the notification under section 4 for persons interested in the land to put in objections and for such objections to be considered by the Local Government.\" (Gazette of India, Pt. V, dated 14th July, 1923, page 260) 30. The said amendment was assented to by the Governor General on 5th August, 1923 and came into force on 1st January, 1924. 31. The importance and scheme of Section 5A was construed by this Court in several cases. As early as in 1964, this Court in Nandeshwar Prasad and Ors. vs. U.P. Government and Ors. Etc. - AIR 1964 SC 1217 speaking through Justice K.N. Wanchoo (as His Lordship then was) held \"...The right to file objections under Section 5A is a substantial right when a person's property is being threatened with acquisition and we cannot accept that that right can be taken away as if by a side-wind.....\" In that case the Court was considering the importance of rights under Section 5A vis-`-vis Section 17(1) and Section 17(1)(A) of the Act. (See para 13 at page 1222 of the report). 32. The same view has been reiterated by another three-Judge Bench decision of this Court in Munshi Singh and Ors. vs. Union of India - (1973) 2 SCC 337. In para 7 of the report this Court held that Section 5A embodies a very just and wholesome principle of giving proper and reasonable opportunity to a land loser of persuading the authorities that his property should not be acquired. This Court made it clear that declaration under Section 6 has to be made only after the appropriate Government is satisfied on a consideration of the report made by the Collector under Section 5A. The Court, however, made it clear that only in a case of real urgency the provision of Section 5A can be dispensed with (See para 7 page 342 of the report). 33. In Hindustan Petroleum Corporation Limited vs. Darius Shahpur Chennai and ors., (2005) 7 SCC 627, this Court held that the right which is conferred under Section 5A has to be read considering the provisions of Article 300-A of the Constitution and, so construed, the right under Section 5A should be interpreted as being akin to a Fundamental Right. This Court held that the same being the legal position, the procedures which have been laid down for depriving a person of the said right must be strictly complied with. 34. In a recent judgment of this Court in Essco Fabs (supra), (2009) 2 SCC 377, this Court, after considering previous judgments as also the provisions of Section 17 of the Act held: \"41. Whereas sub-section (1) of Section 17 deals with cases of \"urgency\", sub-section (2) of the said section covers cases of \"sudden change in the channel of any navigable river or other unforeseen emergency\". But even in such cases i.e. cases of \"urgency\" or \"unforeseen emergency\", enquiry contemplated by Section 5-A cannot ipso facto be dispensed with which is clear from sub-section (4) of Section 17 of the Act.\" 35. This Court, therefore, held that once a case is covered under sub-section (1) or (2) of Section 17, sub-section (4) of Section 17 would not necessarily apply. \"54. In our opinion, therefore, the contention of learned counsel for the respondent authorities is not well founded and cannot be upheld that once a case is covered by sub- sections (1) or (2) of Section 17 of the Act, sub-section (4) of Section 17 would necessarily apply and there is no question of holding inquiry or hearing objections under Section 5-A of the Act. Acceptance of such contention or upholding of this argument will make sub- section (4) of Section 17 totally otiose, redundant and nugatory.\" 36. This Court also held that in view of the ratio in Union of India vs. Mukesh Hans, (2004) 8 SCC 14, sub-section (4) of Section 17 cannot be pressed into service by officers who are negligent and lethargic in initiating acquisition proceedings. 37. The question is whether in the admitted facts of this case, invoking the urgency clause under Section 17 (4) is justified. In the writ petition before the High Court, the petitioners have given the details of the land holding, and it has also been stated that the entire holding of petitioners 2, 5, 7, 9, 10, 11 and 13 have been acquired, and as a result of such acquisition, the petitioners have become landless. From the various facts disclosed in the said affidavit it appears that the matter was initiated by the Government's letter dated 4th of June, 2008 for issuance of Section 4(1) and Section 17 notifications. A meeting for selection of the suitable site for construction was held on 27th June, 2008, and the proposal for such acquisition and construction was sent to the Director, Land Acquisition on 2nd of July, 2008. This was in turn forwarded to the State Government by the Director on 22nd of July, 2008. After due consideration of the forwarded proposal and documents, the State Government issued the Section 4 notification, along with Section 17 notification on 21st of August, 2008. These notifications were published in local newspapers on 24th of September, 2008. Thereafter, over a period of 9 months, the State Government deposited 10% of compensation payable to the landowners, along with 10% of acquisition expenses and 70% of cost of acquisition was deposited, and the proposal for issuance of Section 6 declaration was sent to the Director, Land Acquisition on 19th of June, 2009. The Director in turn forwarded all these to the State Government on 17th July, 2009, and the State Government finally issued the Section 6 declaration on 10th of August, 2009. This declaration was published in the local dailies on 17th of August, 2009. 38. Thus the time which elapsed between publication of Section 4(1) and Section 17 notifications, and Section 6 declaration, in the local newspapers is of 11 months and 23 days, i.e. almost one year. This slow pace at which the government machinery had functioned in processing the acquisition, clearly evinces that there was no urgency for acquiring the land so as to warrant invoking Section 17 (4) of the Act. 39. In paragraph 15 of the writ petition, it has been clearly stated that there was a time gap of more than 11 months between Section 4 and Section 6 notifications, which demonstrates that there was no urgency in the State action which could deny the petitioners their right under Section 5A. In the counter which was filed in this case by the State before the High Court, it was not disputed that the time gap between Section 4 notification read with Section 17, and Section 6 notification was about 11 months. 40. The construction of jail is certainly in public interest and for such construction land may be acquired. But such acquisition can be made only by strictly following the mandate of the said Act. In the facts of this case, such acquisition cannot be made by invoking emergency provisions of Section 17. If so advised, Government can initiate acquisition proceeding by following the provision of Section 5A of the Act and in accordance with law. 41. For the reasons aforesaid, we hold that the State Government was not justified, in the facts of this case, to invoke the emergency provision of Section 17(4) of the Act. The valuable right of the appellants under Section 5A of the Act cannot flattened and steamrolled on the `ipsi dixit' of the executive authority. The impugned notifications under Sections 4 and 6 of the Act in so far as they relate to the appellants' land are quashed. The possession of the appellants in respect of their land cannot be interfered with except in accordance with law. 42. The appeals are allowed. No order as to costs. .......................J. (G.S. SINGHVI) .......................J. New Delhi (ASOK KUMAR GANGULY) March 07, 2011",
        "190580": "CASE NO.: Appeal (civil) 2568 of 2001 Appeal (civil) 2569 of 2001 Appeal (civil) 2570 of 2001 Appeal (civil) 2571 of 2001 Appeal (civil) 2572 of 2001 Appeal (civil) 2573 of 2001 PETITIONER: THE ORIENTAL INSURANCE CO. LTD. Vs. RESPONDENT: HANSRAJBHAI V. KODALA & ORS. DATE OF JUDGMENT: 04/04/2001 BENCH: M.B. Shah & D.P. Mohapatra JUDGMENT: L...I...T.......T.......T.......T.......T.......T.......T..J Shah, J. Leave granted. The common question involved in these appeals is whether the compensation payable under Section 163A of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act) as per the structured formula basis is in addition or in the alternative to the determination of the compensation on the principle of fault liability, after following the procedure prescribed under the Act? For convenience we would refer to few facts in Civil Appeal arising out of S.L.P. (Civil) No.8742 of 1999 in which the judgment and order dated 4.8.98 passed by the High Court of Gujarat at Ahmedabad in FA No.2473 of 1996 is challenged. Petition claiming compensation of Rs. 2,50,000/- was filed before the Claims Tribunal on the ground that one bus bearing registration No. G.J.3T 9815 met with an accident and Mayur, son of respondent Nos. 1 and 2, aged about 6 years died as a result thereof. The claimants also filed an application under Section 163A of the Act for interim compensation on structured formula basis. The Insurance Company- appellant contended that as the bus was not insured with it, it was not liable to pay compensation. The Claims Tribunal granted the prayer of the respondents and directed the appellant to pay Rs.1,62,000/- to the respondents as interim compensation. The appellants preferred appeal before the High Court contending inter alia that in order to provide quicker relief to the accident victims, Section 163A was inserted and is not meant for interim compensation but is an alternative to the determination of compensation under Section 168. It was further contended that the application under Section 163A was a substantial application and not an interim application. The High Court by judgment and order dated 4.8.1998 held that the award under section 163A was an interim award and the claimants were entitled to proceed further with determination of compensation under Section 168 of the Act. That order is under challenge. For determining the question involved, the scheme for payment of compensation under the Act can be divided as under: - (i) Section 140For no-fault liability in case of death or disablement; (ii) Section 161In case of hit and run motor accidents, where the identity of the vehicle cannot be ascertained compensation amount is Rs.25000/- in case of death and Rs.12500/- in case of grievous hurt; (iii) Section 163ASpecial provisions as to payment of compensation on structured formula basis without establishing or proving any wrongful act or neglect or default of any person; (iv) Section 168Determination of compensation payable in pursuance of any right on the principle of fault liability. Chapter XII provides for constitution of Claims Tribunals by the State Government for the purpose of adjudicating the claims for compensation and the procedure thereof. The Claims Tribunal is required to determine the application for payment of compensation either under section 140 or section 163A on the basis of no-fault liability and also on the basis of right to receive the compensation on the principle of fault liability on the basis of Law of Torts, as modified by the Fatal Accidents Act, 1855 read with Motor Vehicles Act, 1988. For appreciating the rival contentions, it would be necessary to refer to the relevant provisions of the Sections 140 (Chapter X), 161, 162, 163A, 163B (Chapter XI) and 167 (Chapter XII) of the Act which are as under: 140. Liability to pay compensation in certain cases on the principle of no fault. (1) Whether death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicle shall, or, as the case may be, the owners of the vehicles shall, jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of this section. (2) The amount of compensation which shall be payable under sub-section (1) in respect of the death of any person shall be a fixed sum of fifty thousand rupees and the amount of compensation payable under that sub-section in respect of the permanent disablement of any person shall be a fixed sum of twenty-five thousand rupees. (3) In any claim for compensation under sub-section (1), the claimant shall not be required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned or of any other person. (4) A claim for compensation under sub-section (1) shall not be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made nor shall the quantum of compensation recoverable in respect of such death or permanent disablement be reduced on the basis of the share of such person in the responsibility for such death or permanent disablement. (5) Notwithstanding anything contained in sub-section (2) regarding the death or bodily injury to any person, for which the owner of the vehicle is liable to give compensation for relief, he is also liable to pay compensation under any other law for the time being in force; Provided that the amount of such compensation to be given under any other law shall be reduced from the amount of compensation payable under this section or under section 163A. 141. (1) Provisions as to other right to claim compensation for death or permanent disablement. (1) The right to claim compensation under section 140 in respect of death or permanent disablement of any person shall be in addition to any other right, except the right to claim under the scheme referred to in section 163A (such other right hereafter in this section referred to as the right on the principle of fault) to claim compensation in respect thereof under any other provision of this Act or of any other law for the time being in force. (2) A claim for compensation under section 140 in respect of death or permanent disablement of any person shall be disposed of as expeditiously as possible and where compensation is claimed in respect of such death or permanent disablement under section 140 and also in pursuance of any right on the principle of fault, the claim for compensation under section 140 shall be disposed of as aforesaid in the first place. (3) Notwithstanding anything contained in sub-section (1), where in respect of the death or permanent disablement of any person, the person liable to pay compensation under section 140 is also liable to pay compensation in accordance with the right on the principle of fault, the person so liable shall pay the first-mentioned compensation and (a) if the amount of the first-mentioned compensation is less than the amount of the second-mentioned compensation, he shall be liable to pay (in addition) to the first-mentioned compensation) only so much of the second-mentioned compensation as is equal to the amount by which it exceeds the first mentioned compensation; (b) if the amount of the first-mentioned compensation is equal to or more than the amount of the second- mentioned compensation, he shall not be liable to pay the second-mentioned compensation. 161. Special provisions as to compensation in case of hit and run motor accident. (1) For the purposes of this section, section 162 and section 163 (a) grievous hurt shall have the same meaning as in the Indian Penal Code, 1860 (45 of 1860); (b) hit and run motor accident means an accident arising out of the use of a motor vehicle or motor vehicles the identity whereof cannot be ascertained in spite of reasonable efforts for the purpose; (c) scheme means the scheme framed under section 163. (2) Notwithstanding anything contained in the General Insurance Business (Nationalisation) Act, 1972 (57 of 1972) or any other law for the time being in force or any instrument having the force of law, the General Insurance Corporation of India formed under section 9 of the said Act and the insurance companies for the time being carrying on general insurance business in India shall provide for paying in accordance with the provisions of this Act and the scheme, compensation in respect of the death of, or grievous hurt to, persons resulting from hit and run motor accidents. (3) Subject to the provisions of this Act and the scheme, there shall be paid as compensation (a) in respect of the death of any person resulting from a hit and run motor accident, a fixed sum of twenty-five thousand rupees; (b) in respect of grievous hurt to any person resulting from a hit and run motor accident, a fixed sum of twelve thousand five hundred rupees. (4) The provisions of sub-section (1) of section 166 shall apply for the purpose of making applications for compensation under this section as they apply for the purpose of making applications for compensation referred to in that sub- section. 162. Refund in certain cases of compensation paid under section 161. (1) The payment of compensation in respect of the death of, or grievous hurt to, any person under section 161 shall be subject to the condition that if any compensation (hereafter in this sub-section referred to as the other compensation) or other amount in lieu of or by way of satisfaction of a claim for compensation is awarded or paid in respect of such death or grievous hurt under any other provision of this Act or any other law or otherwise so much of the other compensation or other amount aforesaid as is equal to the compensation paid under section 161 shall be refunded to the insurer. (2) Before awarding compensation in respect of an accident involving the death of, or bodily injury to, any person arising out of the use of a motor vehicle or motor vehicles under any provision of this Act (other than section 161) or any other law, the Tribunal, Court or other authority awarding such compensation shall verify as to whether in respect of such death or bodily injury compensation has already been paid under section 161 or an application for payment of compensation is pending under that section, and such Tribunal, Court or other authority shall, (a) if compensation has already been paid under section 161, direct the person liable to pay the compensation awarded by it to refund to the insurer, so much thereof as is required to be refunded in accordance with the provisions of sub- section (1); (b) if an application for payment of compensation is pending under section 161 forward the particulars as to the compensation awarded by it to the insurer. Explanation.For the purpose of this sub-section, an application for compensation under section 161 shall be deemed to be pending (i) if such application has been rejected, till the date of the rejection of the application, and (ii) in any other case, till the date of payment of compensation in pursuance of the application. 163A. Special provisions as to payment of compensation on structured formula basis.(1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle of the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. Explanation.For the purposes of this sub-section, permanent disability shall have the same meaning and extent as in the Workmens Compensation Act, 1923 (8 of 1923). (2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. (3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule. 163B. Option to file claim in certain cases.Where a person is entitled to claim compensation under section 140 and section 163A, he shall file the claim under either of the said sections and not under both. 167. Option regarding claims for compensation in certain cases.Notwithstanding anything contained in the Workmens Compensation Act, 1923 (8 of 1923) where the death of, or bodily injury to, any person gives rise to a claim for compensation under this Act and also under the Workmens Compensation Act, 1923, the person entitled to compensation may without prejudice to the provisions of Chapter X claim such compensation under either of those Acts but not under both. Further, Section 164 empowers the Central Government to make rules for the purpose of carrying into effect the provisions of Chapter XI which include making such rules for (a) the forms to be used for the purpose of the said chapter and (f) the identification by certificates or otherwise of persons or vehicles exempted from the provisions of the Chapter. Learned counsel appearing on behalf of the respondents, however, submitted that uptil now, the Central Government has not framed any such rules as provided under Section 164. Thereafter, Chapter XII deals with Claims Tribunals. Section 165 provides for establishment of Claims Tribunals for the purpose of adjudicating upon claims for compensation in respect of accidents involving a death of, or bodily injury to, persons arising out of or use of motor vehicles, or damages to any property of a third party so arising, or both, and Explanation to sub-section (1) provides that claims for compensation in respect of accidents involving the death of or bodily injury to persons arising out of the use of motor vehicle includes claims for compensation under Section 140 and 163A. Hence, the application claiming compensation under Section 140 or 163A and/or on the right to claim compensation on the principle of fault liability is required to be filed before the Claims Tribunal. Section 166 provides who can make application for such compensation and where it could be filed. Additionally, sub-section (4) of section 166 makes provision that the Claims Tribunal shall treat the report of accidents forwarded to it under sub-section (6) of Section 158 as an application for compensation under the Act and sub-section (6) of section 158 provides for submitting the report to the Claims Tribunal by the officer in charge of the police station as soon as any information regarding any accident involving death or bodily injury to any person is recorded or report under Section 158 is completed by a police officer. Section 168 requires the Claims Tribunal to determine the amount of compensation which appears to it to be just and specify person or persons to whom compensation is to be paid by making an award. Such award shall also specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be. Proviso to sub-section (1) of Section 168 makes it clear that in an application which is filed under Section 165, if there is a claim for compensation under Section 140 in respect of death or permanent disablement of any person, the same is to be disposed of in first place in accordance with provisions of Chapter X (i.e. Sections 140 to 143). Legislative HistoryStatement of Objects and Reasons: From the provisions quoted above, it appears that no specific mention is made that remedy provided under Section 163A is in addition or in the alternative to the determination of compensation on the basis of fault liability. Section 163A was not there in the original Act of 1988. It was inserted by Act No. 54 of 1994 w.e.f. 14.11.1994. Hence, for arriving at the proper conclusion, it would be necessary to cull out legislative intent by referring to the legislative history as well as Objects and Reasons for inserting the said provision. The Law Commission of India in its 119th Report in the Introductory Chapter observed [para 1.6] that previously there was recommendation for inserting provision in the Motor Vehicles Act to extend protection to victims of hit and run accidents where the person liable to pay such compensation or his whereabouts cannot be ascertained after reasonable effort by providing that in such an event, the person entitled to such compensation shall be entitled to receive it from the State. In para 1.7 for introducing provision for no fault liability, the Commission observed as under: By 1980, a wind was blowing that compensation to the victims of motor accidents should be by way of social security and the liability to pay the same must be No-fault liability. The law, as it stands at present, save the provision in Chapter VIIA, inserted by the Motor Vehicles (Amendment) Act, 1982, enables the victim or the dependants of the victim in the event of death to recover compensation on proof of fault of the person liable to pay compensation and which fault caused the harm such as bodily injury or death. In the event of death of a victim of a motor accident and the consequent harm caused to his dependants, the question whether the person responsible for the action causing harm had committed a fault or it was an inevitable accident, is hardly relevant from the point of view of victim or his/her dependants. The expanding notions of social security and social justice envisaged that the liability to pay compensation must be a No-fault liability. Before the Motor Vehicles Act 1939 was repealed by the present Act, the Legislature introduced Chapter VII-A in the Motor Vehicles Act, 1939. While interpreting the said provisions, this Court in Gujarat State Road Transport Corporation, Ahmedabad v. Ramanbhai Prabhatbhai and Another [(1987) 3 SCR 404] referred to the aforesaid recommendations made by the Law Commission and observed thus: - When the Fatal Accidents Act, 1855 was enacted there were no motor vehicles on the roads in India. Today, thanks to the modern civilization, thousands of motor vehicles are put on the road and the largest number of injuries and deaths are taking place on the roads on account of the motor vehicles accidents. In view of the fast and constantly increasing volume of traffic, the motor vehicles upon the roads may be regarded to some extent as coming within the principle of liability defined in Rylands v. Fletcher, [1868] L.R. 3 H.L.330, 340. From the point of view of the pedestrian the roads of this country have been rendered by the use of the motor vehicles highly dangerous. Hit and run cases where the drivers of the motor vehicles who have caused the accidents are not known are increasing in number. Where a pedestrian without negligence on his part is injured or killed by a motorist, whether negligently or not, he or his legal representatives as the case may be should be entitled to recover damages if the principle of social justice should have any meaning at all. In order to meet to some extent the responsibility of the society to the deaths and injuries caused in road accidents there has been a continuous agitation through out the world to make the liability for damages arising out of motor vehicles accidents as a liability without fault. In order to meet the above social demand on the recommendation of the Indian Law Commission Chapter VIIA was introduced in the Act. Sections 92-A to 92-E of the Act are to be found in Chapter VIIA. The Court further observed as under: - This part of the Act is clearly a departure from the usual common law principle that a claimant should establish negligence on the part of the owner or driver of the motor vehicle before claiming any compensation for the death or permanent disablement caused on account of a motor vehicle accident. To that extent the substantive law of the country stands modified. The special provisions contained in section 109-A to section 109-C of the Act providing for a scheme for granting relief to victims or the legal representatives of victims of hit and run motor vehicle accident cases is another novel effort on the part of the Government to remedy the situation created by the modern society which has been responsible for introducing so many fast moving vehicles on roads. Thereafter a Committee to Review the Provisions of Motor Vehicles Act, 1988 and Central Motor Vehicle Rules, 1989 (hereinafter referred to as the Review Committee) was set up by the Government of India in March 1990. The Review Committee in its report suggested changes in a number of provisions in the Act. The Review Committee considered that determination of the claims cases pending before the Claims Tribunal takes a long time. To obviate such delay, proposals were made that finalisation of compensation claims would greatly facilitate to the advantage of claimants, the vehicle owners as well as the insurance companies, if a system of structured compensation can be introduced. Under such scheme the affected party can have the option of their accepting the lump sum compensation as is notified in that scheme of structured compensation or of pursuing his claim through the normal channels. Thereafter, the Review Committee considered the suggestion of General Insurance Corporation that claimants should first file their claims with Motor Accident Claims Tribunals and the insurers be allowed six months time to confirm their prima facie liability subject to defences available under the Act. After such confirmation, the claimants should be required to exercise their option for conciliation under Structured Compensation Formula within stipulated time. Finally, the Committee also observed: Para 4.11.2: .In case a claimant opts for conciliation, necessary consent award may be given by MACT and if he does not opt for it, he may proceed with regular Motor Accidents Claims Tribunal in the usual course. The Committee also recommended that the decision of the insurer to accept liability before the expiry of the stipulated period should be the final one and after it is available it will be open to the insured to claim compensation under the structured compensation. Further, the statement of objects and reasons for amending the Act inter alia mentions that the recommendations of the Review Committee were forwarded to the State Governments for comments and they generally agreed with these recommendations. The draft of the proposals based on the recommendation of the Review Committee and representations from the public were placed before the Transport Development Council for seeking their views in the matter. The Transport Development Council made certain suggestions and the relevant suggestion is,(b) providing adequate compensation to victims of road accidents without going into long drawn procedure. The proposed legislation inter alia provide for (h) increase in the amount of compensation to the victims of hit and run cases; (k) a new pre-determined formula for payment of compensation to road accident victims on the basis of age/income, which is more liberal and rational. The next question iswhether the recommendations made by the Review Committee are reflected in the provisions, which are inserted by the said Act. It is contended that the relevant provisions nowhere provide that lump sum compensation payable under the structured formula basis is alternative and optional to the determination of compensation under Section 168. As stated above, the Legislature has not specified or clarified that compensation payable under Section 163-A is in the alternative or in addition. Therefore, we are referring to the reasons for inserting Section 163A in context of other provisions. For the purpose of interpretation in such cases, this Court in Utkal Contractors and Joinery P. Ltd. & Ors. Vs. State of Orissa & Ors. [(1987) 3 SCC 279] observed that reason for a statute is a safest guide to its interpretation and held thus (P.288-89): - .The reason for a statute is the safest guide to its interpretation. The words of a statute take their colour from the reason for it. How do we discover the reason for a statute? There are external and internal aids. The external aids are Statement of Objects and Reasons when the Bill is presented to Parliament, the reports of committees which preceded the Bill and the reports of Parliamentary Committees. Occasional excursions into the debates of Parliament are permitted. Internal aids are the preamble, the scheme and the provisions of the Act. Having discovered the reason for the statute and so having set the sail to the wind, the interpreter may proceed ahead. No provision in the statute and no word of the statute may be construed in isolation. Every provision and every word must be looked at generally before any provision or word is attempted to be construed. The setting and the pattern are important Again, while the words of an enactment are important, the context is no less important. In this context if we refer to the Review Committees Report, the reason for enacting Section 163A is to give earliest relief to the victims of the motor vehicle accidents. The Committee observed that determination of cases takes long time and, therefore, under a system of structural compensation, the compensation that is payable for different classes of cases depending upon the age of the deceased, the monthly income at the time of death, the earning potential in the case of minor, loss of income on account of loss of limb etc. can be notified and the affected party can then have option of their accepting lump sum compensation under the scheme of structural compensation or of pursuing his claim through the normal channels. The Report of the Review Committee was considered by the State Governments and comments were notified. Thereafter, the Transport Development Council made suggestions for providing adequate compensation to victims of road accidents without going into long drawn procedure. As per the objects and reasons, it is a new pre-determined formula for payment of compensation to road accidents victims on the basis of age/income which is more liberal and rational. On the basis of the said recommendation after considering the Report of the Transport Development Council, the Bill was introduced with a new pre-determined formula for payment of compensation to road accident victims on the basis of age/income which is more liberal and notional, i.e. Section 163A. It is also apparent that compensation payable under Section 163A is almost based on relevant criteria for determining the compensation such as annual income, age of the victim and multiplier to be applied. In addition to the figure which is arrived at on the basis of said criteria, schedule also provides that amount of compensation shall not be less than Rs.50,000/-. It provides for fixed amount of general damage in case of death such as (1) Rs.2000/- for funeral expenses (2) Rs.5000/- for loss of consortium if beneficiary is the spouse (3) Rs.2400/- for loss of estate (4) for medical expenses supported by the bills, voucher not exceeding Rs.15000/-. Similarly, for disability in non- fatal accident para 5 of the Schedule provides for determination of compensation on the basis of permanent disability. Para 6 provides for notional income for those who had no income prior to accident at Rs.15000/- per annum. There is also provision for reduction of 1/3rd amount of compensation on the assumption that the victim would have incurred the said amount towards maintaining himself had he been alive. The purpose of this Section and the Second Schedule is to avoid long drawn litigation and delay in payment of compensation to the victims or his heirs who are in dire need of relief. If such affected claimant opts for accepting the lump-sum compensation based on structured formula, he would get relief at the earliest. It also gives vital advantage of not pleading or establishing any wrongful act or neglect or default of the owner of the offending vehicle or vehicles. This no fault liability appears to have been introduced on the basis of the suggestion of the Law Commission to the effect that the expanding notions of social security and social justice envisage that liability to pay compensation must be no fault liability and as observed by this Court in Ramanbhais case (Supra), in order to meet to some extent the responsibility of the society to the deaths and injuries caused in road accidents. However, this benefit can be availed of by the claimant only by restricting his claim on the basis of income at a slab of Rs.40,000/- which is the highest slab in the Second Schedule which indicates that the legislature wanted to give benefit of no fault liability to a certain limit. This would clearly indicate that the scheme is in alternative to the determination of compensation on fault basis under the Act. The object underlining the said amendment is to pay compensation without there being any long drawn litigation on an predetermined formula, which is known as structured formula basis which itself is based on relevant criteria for determining compensation and the procedure of paying compensation after determining the fault is done away. Compensation amount is paid without pleading or proof of fault, on the principle of social justice as a social security measure because of ever increasing motor vehicles accidents in a fast moving society. Further, the law before insertion of Section 163-A was giving limited benefit to the extent provided under Section 140 for no fault liability and determination of compensation amount on fault liability was taking long time. That mischief is sought to be remedied by introducing Section 163A and the disease of delay is sought to be cured to a large extent by affording benefit to the victims on structured formula basis. Further, if the question of determining compensation on fault liability is kept alive it would result in additional litigation and complications in case claimants fail to establish liability of the owner of the defaulting vehicles. Use of specific words also and in addition in Sections 140 and 141: The aforesaid conclusion gets support from the language used in Sections 140, 141, 161 and 163A. Sections 140 to 143 provide for liability of the owner of the vehicle in case of death or permanent disablement of any person resulting from an accident arising out of use of a motor vehicle or motor vehicles to pay compensation without any pleading or establishing that death or permanent disablement was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles. By way of earliest relief, victim is entitled to get the amount of compensation of Rs.50,000/- in case of death and Rs.25,000/- in case of permanent disablement. It is further provided that such claim shall not be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement has occurred. Sub-section (5) of Section 140 upon which much reliance is placed by learned counsel for the Insurance Companies as well as the claimants requires consideration and interpretation, which inter alia provides that owner of the vehicle is also liable to pay compensation under any other law for the time being in force. The word also indicates that the owner of the vehicle would be additionally liable to pay compensation under any other law for the time being in force. The proviso to sub-section (5) further clarifies that the amount of compensation payable under any other law for the time being in force is to be reduced from the amount of compensation payable under sub-section (2) or under section 163A. This is further crystalized in Section 141 which provides that right to claim compensation under Section 140 is in addition to any other right to claim compensation on the principle of fault liability and specifically excludes the right to claim compensation under the scheme referred to in Section 163A. Section 163B also provides that where a person is entitled to claim compensation under Section 140 and Section 163A, he can file the claim under either of the said sections, but not under both. Similarly, Section 141(1) also crystalises that right to claim compensation under Section 140 is in addition to the right to claim compensation in respect thereof under any other provision of the Act or any other law for the time being in force. Sub- section (2) further provides that if the claimant has filed an application for compensation under Section 140 and also in pursuance of any right on the principle of fault liability, the claim for compensation under Section 140 is to be disposed of in the first place and as provided in sub-section (3) the amount received under sub-section (2) of Section 140 is to be adjusted while paying the compensation on the principle of fault liability. On the basis of fault liability if additional amount is required to be paid then the claimant is entitled to get the same but there is no provision for refund of the amount received under Section 140(2), even if the Claims Tribunal arrives at the conclusion that the claimant was not entitled to get any compensation on the principle of fault liability. Further, Section 144 gives overriding effect to the provisions made under Chapter X by providing that the provisions of the chapter shall have effect notwithstanding any thing contained in any provision of the Act or of any other law for the time being in force. From the aforesaid Sections, one aspect is abundantly clear that right to claim compensation on the basis of no-fault liability under Section 140 is in addition to the right to claim compensation on the principle of fault liability or right to get compensation under any other law. Such amount is required to be reduced from the amount payable under the fault liability or compensation which may be received under any other law. If nothing is payable under the Act then the claimant is not required to refund the amount received by him. As against this, there is specific departure in the scheme envisaged for paying compensation under Section 163A. Section 163A nowhere provides that this payment of compensation on no fault liability on the basis of structured formula is in addition to the liability to pay compensation in accordance with the right to get compensation on the principle of fault liability and unless otherwise provided for the same cause, compensation cannot be paid again. Provisions for refund of compensation if compensation is received under any other law or under the Act: Further, as the legislature has not provided for refund or adjustment of compensation received under the Act and compensation payable under Section 163A, it would mean that Scheme of payment of compensation under Section 163A is in alternative to determination of compensation under Section 168. As stated above, sections 140(5) and 141(3) make provisions for reduction of compensation paid under Section 140. Under proviso to sub-Section (5) of Section 140, the amount of such compensation which the claimant is entitled to receive under any other law is required to be reduced from the amount of compensation payable under Section 140 or under Section 163A. Under Section 141(3), if a person gets the compensation on principle of fault liability, then also provision is made for adjustment of compensation received under section 140. There is no such provision for adjustment of compensation received under section 163A from the compensation receivable under the Act on the principle of fault. Similarly, section 161 provides for payment of compensation in case of hit and run motor accidents. Under Section 161(3), in cases in respect of the death of any person resulting from a hit and run motor accident, a fixed sum of Rs.25,000/- is to be paid as compensation and in case of grievous hurt, the amount fixed is Rs.12,500/-. Thereafter, under Section 162, the legislature has provided for refund of compensation paid under Section 161 on the principle of hit and run motor accident by providing that the payment of compensation under Section 161 shall be subject to the condition that if any compensation is awarded under any other provision of this Act or any other law or otherwise, so much amount as is equal to the compensation paid under Section 161 is required to be adjusted or refunded to the insurer. Under section 162(2), duty is cast on the Tribunal, Court or other authority awarding such compensation to verify as to whether in respect of such death or bodily injury, compensation has already been paid under Section 161 and to make adjustment as required thereunder. Result isclaimant is not entitled to have additional compensation but at the same time he can proceed by filing application under Section 165 or under the Workmen Compensation Act (i.e. other law) and if he gets compensation under either of the said provisions, the amount paid under Section 161 is to be refunded or adjusted. The contention of the learned counsel for the claimants that compensation payable under Section 163A is in addition to the determination of compensation on the basis of fault liability and thereafter it could be adjusted on the similar lines provided under Section 140 read with Section 141 or Section 162 cannot be accepted. The Legislature has specifically provided scheme of adjustment of compensation under Section 140 read with Section 141 and Section 162 if the claimants get compensation under the Act, while there is no such provisions under Section 163A. Addition or introduction of such scheme in provisions would be impermissible. Use of different words such asany other law, under this section any other law for the time being in force, provisions of this Act or any other provision of this Act in different sections: The learned counsel for the claimants submitted that the proviso to sub-section (5) of Section 140 would mean that even in case where compensation is determined under the structured basis formula under Section 163A, the claimant is entitled to claim compensation on the basis of fault liability and if he gets higher amount on the basis of fault liability then from that amount compensation which is paid under Section 163A is to be reduced. At the first blush the argument of the learned counsel appears to be attractive as the proviso to sub-section (5) of section 140 is to some extent ambiguous and vague. It may mean that amount of compensation given under any other law may include the amount payable on the basis of fault liability, therefore, in view of said proviso compensation amount payable under any other law is to be reduced from the compensation payable under Section 140 or 163A. For appreciating this contention and for ascertaining appropriate meaning of the phrase compensation under any other law for the time being in force, the proviso to sub-section (5) is required to be considered along with other provisions. The scheme of other provision section 167 indicates that the aforesaid phrase is referable to compensation payable under the Workmens Compensation Act, 1923 or any other law which may be in force but not to the determination of compensation under the Act, and would not include the compensation which is determined under the provision of the Act. This section 167 in terms provides that where death of, or bodily injury to, any person gives rise to claim compensation under the Act and also under Workmens Compensation Act, 1923, such person cannot claim compensation under both the Acts. Further, in Section 140(5), the legislature has used the words under any other law for the time being in force and under any other law. In Section 141 (1), the legislature has used the phrase under any other provision of this Act or of any other law for the time being in force. In sub-section (2), the legislature has specifically provided that a claim for compensation under Section 140 shall be disposed of as expeditiously as possible and where compensation is also claimed in pursuance of any right on principle of fault, the application under Section 140 is to be disposed of in first place. Whereas, there is no such reference for payment of compensation under Section 163A. Further, in Section 161(2), the legislature has used the phrase any other law for the time being in force and provisions of this Act. Similarly, in Section 162, the legislature has used the words under any other provisions of this Act or any other law or otherwise. As against this, in Section 163A, legislature has used the phrase notwithstanding anything contained in this Act or in any other law for the time being in force. When the Legislature has taken care of using different phrases in different sections, normally different meaning is required to be assigned to the language used by the Legislature unless context otherwise requires. However, in relation to the same subject matter, if different words of different import are used in the same statute, there is presumption that they are not used in the same sense. {Re: Board of Revenue v. Arthur Paul AIR 1956 SC 35 at 38}. In this light, particularly Section 141 which provides for right to claim compensation under any other provision of this Act or of any other law for the time being in force, proviso to sub-section (5) of Section 140 would mean that it does not provide for deduction or adjustment of compensation payable under the Act, that is, on the principle of fault liability which is to be determined under Section 168. Specific Language of Section 163A including its heading: Lastly, for interpretation and construction of Section 163A, we would refer to its heading and language. The heading is Special provisions as to payment of compensation on structured formula basis. At the outset, we would make it clear that for interpretation of the words of Section the language of the heading cannot be used to control the operation of the Section, but at the same time being part of the statute it prima-facie furnishes some clue as to the meaning and purpose of Section. [Re: K.P. Varghese v. ITO [(1982) 1 SCR p.629 at 647]. In case of ambiguity or doubt heading can be referred to as an aid in construing the provision. This heading indicates that the legislature has envisaged special provision for paying compensation on structural formula basis instead of paying the compensation by long drawn litigation after establishing fault liability. Section also begins with non-obstante clause notwithstanding anything contained in this Act or any law for the time being in force. This would mean that it is not subject to any adjudication of right to claim compensation as provided under the Act. The owner of the motor vehicle or the authorised insurer would be liable to pay compensation due to accident arising out of the use of motor vehicle. Section 163-B further clarifies that claim petition can be filed either under Section 140 or under Section 163A but not under both sections. The learned counsel for the claimants however submitted that if we compare the language used in Sections 163A and 140(1), it would be apparent that Section 140 contemplates payment of compensation by the owner of the vehicle. As against this, Section 163A contemplates payment of compensation by the owner of the vehicle or authorised insurer. It is submitted that even if we read the said phrase as owner of the motor vehicle of authorised insurer as owner of the motor vehicle or authorised insurer on the assumption that of is wrongly used, then also it is their contention that Section 163A envisages payment either by the authorised insurer or by the owner of the motor vehicle. It has wider implication and, therefore, compensation beyond maximum of Rs.50000/- is provided in Second Schedule and hence the payment under Section 163A should not be considered as alternative to payment of compensation under the fault liability. In our view, it is true that Section 140 talks of payment of compensation by the owner of the vehicle, while Section 163A after reading of as or would mean that owner of the vehicle or the authorised insurer would be liable to pay compensation under Section 163A. But that would not make any difference because determination of compensation under Section 163A is final and not as an interim measure. As stated above, the legislature has deliberately not provided that it is in addition to the compensation payable on the principle of fault liability. There is no provision for adjusting the compensation payable under Section 163A with the other payment on fault liability under the Act. In the result, the contention of the claimants that right to get compensation under Section 163A is additional to claim compensation on no fault liability is rejected for the following reasons: - (1) There is no specific provision in the Act to the effect that such compensation is in addition to the compensation payable under the Act. Wherever the Legislature wanted to provide additional compensation, it has done so. [Sections 140 and 141] (2) In case where compensation is paid on no fault liability under sections 140 and 161 in case of hit and run motor accidents, the Legislature has provided adjustment or refund of the said compensation in case where compensation is determined and payable under the award on the basis of fault liability under section 168 of the Act. There is no such procedure for refund or adjustment of compensation paid where the compensation is paid under Section 163A. (3) The words under any other law for the time being in force would certainly have different meaning from the words under this Act or under any other provision of this Act (4) In view of the non-obstante clause notwithstanding anything contained in this Act the provisions of Section 163A would exclude determination of compensation on the principle of fault liability. (5) The procedure of giving compensation under Section 163A is inconsistent with the procedure prescribed for awarding compensation on fault liability. Under section 163A compensation is awarded without proof of any fault while for getting compensation on the basis of fault liability claimant is required to prove wrongful act, neglect or default of the owner of the vehicle or vehicles concerned. (6) Award of compensation under section 163A is on predetermined formula for payment of compensation to road accident victims and that formula itself is based on criteria similar to determining the compensation under section 168. The object was to avoid delay in determination of compensation. In the result, the question involved in these matters is answered accordingly. The appeals filed by the Insurance Companies are allowed and the impugned judgments and orders are quashed and set aside. However, there will be no order as to costs. Before parting with the judgment, we would like to draw the attention of the Central Government for revision and appropriate correction of the Second Schedule, which provides for payment of compensation on structured formula basis, by exercise of its power under Section 163A(3). The learned counsel for the parties submitted that in U.P. State Road Transport Corporation and others v. Trilok Chandra and others [(1996) 4 SCC 362 Para 18] this Court has pointed out errors in the Second Schedule thus: We must at once point out that the calculation of compensation and the amount worked out in the Schedule suffers from several defects. For example, in Item 1 for a victim aged 15 years, the multiplier is shown to be Rs.3000. The total should be 3000x 15=45,000 but the same is worked out at Rs.60,000. Similarly, in the second item the multiplier is 16 and the annual income is Rs 9000; the total should have been Rs.1,44,000 but is shown to be Rs.1,71,000. To put it briefly, the table abounds in such mistakes. Neither the tribunals nor the courts can go by the ready reckoner. It can only be used as a guide. Besides, the selection of multiplier cannot in all cases be solely dependant on the age of the deceased. For example, if the deceased, a bachelor, dies at the age of 45 and his dependants are his parents, age of the parents would also be relevant in the choice of the multiplier. But these mistakes are limited to actual calculations only and not in respect of other items. What we propose to emphasize is that the multiplier cannot exceed 18 years purchase factor. This is the improvement over the earlier position that ordinarily it should not exceed 16. We thought it necessary to state the correct legal position as courts and tribunals are using higher multiplier as in the present case where the Tribunal used the multiplier of 24 which the High Court raised to 34, thereby showing lack of awareness of the background of the multiplier system in Davies v. Powell Duffryn Associated Collieries Ltd., [1942 AC 601 : (1942) 1 All ER 657]. In addition, the learned counsel also pointed out that in case of fatal accident and disability in non-fatal accident, it has been provided that notional income for the claimant who had no income prior to accident shall be Rs.15000/- per annum and still however the Second Schedule provides table of income ranging from Rs.3000/- to Rs.40000/- and the brake-up also does not provide any calculation for Rs.15000/-, as the columns in the Schedule inter alia provide for compensation for a person having income of Rs.12000/-, and thereafter straightway at Rs.18000/-. The learned counsel also submitted that despite the specific provision in Section 163A(3) that the Central Government may, keeping in view the cost of living, by notification in Official Gazette from time to time amend the Schedule, nothing has been done so far. Further, by order dated 30.8.2000, this Court again noticed number of anomalies in the Second Schedule and, therefore, thought it fit to have assistance of either the Attorney General of India or the Solicitor General of India. When the matter was called out on 15.12.2000, Mr. Altaf Ahmad, ASG, stated before the Court that the order passed by this Court on 30.8.2000 has already engaged serious attention of the Ministry of Surface Transport Department and the Government was considering the matter for bringing necessary correction in the Second Schedule of the Motor Vehicles Act. Thereafter, we again sought assistance of the Additional Solicitor General on the interpretation of Section 163A and also to verify whether there are corrections in the Second Schedule. Learned Additional Solicitor General stated that amendment might take some time. In this view of the matter, we think it would be appropriate if the Central Government takes necessary action as early as possible under Section 163A(3). Ordered accordingly.",
        "39503956": "C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.12.2019 CORAM: THE HONOURABLE MS.JUSTICE S.M.SUBRAMANIAM C.M.P.No.15283 of 2019 in AS.SR.No.85894 of 2019 Pachiyammal .. Appellant Vs. Duraisamy ..Respondent PRAYER: C.M.P.No.15283 of 2019 is filed under Section 5 of the Limitation Act, to condone the delay of 455 days in filing the appeal Suit in AS.SR.No.85894/2019. AS.SR.No.85894/2019 is filed under Section 96 of Civil Procedure Code, against the Judgment and Decree dated 22.11.2017 passed in O.S.No.166 of 2015 on the file of the II Additional District Judge, Puducherry. For Appellant : Mr.Sasindran K. For Respondent : Mr.S.Vadivel 1/34 C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 JUDGMENT Law of Limitation being a substantive law, the Courts are bound to follow the principles, while condoning the delay, which is otherwise enormous. Huge delay cannot be condoned in a routine manner by the Courts. Courts have to exercise the discretionary powers judiciously and cautiously and in the event of exercising the discretionary power to condone the enormous delay, then the reasons must be recorded. In the absence of any acceptable reasons, huge delay cannot be condoned at all. Law of limitation being a substantive law, the rule is to file appeals in time. Condoning the delay by exercising a discretionary power is an exception. Thus, the exception cannot be made as a rule as if the delay in huge can be condoned in a routine manner. This being the basic principles to be adopted by the Courts for the purpose of condoning the huge delay, this Court is of an opinion that the delay of 455 days, which is improperly explained is to be construed as an uncondonable delay. 2. Reasons stated in the present petition for condoning the C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 delay is narrated in paragraphs 4 and 5 of the affidavit filed in support of the miscellaneous petition. In paragraph 4, the petitioner has stated that she enquired about the status of her case and her Advocate used to say that the case is pending and he would call her, as and when required. The very statement is questionable in view of the fact that the petitioner herself participated in the trial and defended her case throughout the trial. Further, it is stated in the affidavit that the petitioner was under the impression that the suit was pending. While so, she came to know that the respondent has filed execution proceedings. In the above case, after receipt of notice in the execution petition, she contacted her advocate and enquired about the issue of letter. She came to know that the suit was decreed on 22.12.2017. Except by blaming the Advocate, in respect of the informations provided by the learned counsel, the petitioner has not furnished any acceptable ground for the purpose of condoning the delay of 455 days in filing the appeal suit. In Paragraph 5 of the affidavit, the petitioner has stated that she was in financial crisis and could not able to mobilize funds for the purpose of paying the Court fee and for filing the appeal suit before the High Court. The insufficient funds cannot be considered as a C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 valid ground for the purpose of condoning a huge delay. Even in such cases, the appeals can be filed in time and within the permissible time limit. The Court fee can be paid or the petitioner, if pauper, then appropriate application can be filed. Contrarily, the reason of insufficient funds cannot be a ground to condone the delay of 455 days in filing the appeal suit. 3. The legal principles to be followed for condoning the delay is well settled and this Court also considered the said principles in C.M.P.Nos.8358 & 8359 of 2018 in AS.SR.No.32087 of 2018 dated 09.12.2019 and the relevant paragraphs are extracted as under: \u201c10. In respect of said contentions, the learned counsel appearing on behalf of the respondent cited the judgment of this Court in the case of Zulaiha Syed Mohideen Vs. D.Visalakshi Ammal & Others reported in MANU/TN/2222/2013, wherein the Court made following observations; \u201c5.Before going into the merits of the case, first of all, it should be stated that in a case of this nature for condonation of delay, it is well settled that length of delay is not material, but the reasons stated thereof for C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 condonation of delay. In other words, for condonation of delay, the reasons adduced must be properly pleaded, convincing and acceptable and explanation should be offered for condonation of the delay. Unless proper explanation is offered, the Courts could not exercise its discretion in the proper perspective to advance substantial justice. It is also settled that when a court has exercised its discretionary power to condone the delay, the appellate Court, in exercise of its discretion, should not ordinarily interfere with such decision unless the discretion exercised is arbitrary and overlooking the interest accrued to another party to the dispute. The appellate Court should also see whether the trial court has taken into consideration all the aspects of the matter, the advantage or disadvantage that may be caused to the other side while condoning the delay inasmuch as during the interregnum, the other party could have asserted a vested right. With this background, let us analyse the merits of the rival contentions urged by the counsel for both sides. 6 to 11....... 12.On behalf of the revision petitioner, several decisions were cited. The learned counsel for the respondents objected for relying on the decisions by stating that they relate to condonation of delay in filing a petition and not with respect to condonation of delay in re- presenting a petition. Such an argument of the counsel for the respondents cannot be countenanced. Each and every C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 case depends on the facts and circumstances of that case. Further, the issue involved in this case is whether the delay in filing a petition has been properly explained and sufficient cause has been shown for the delay or not and in support of the same, the learned counsel for the revision petitioner has relied on the following decisions:- (i) In (Kandaswamy and four others vs. Krishnamandiram Trust, Karur, by its Trustees and 33 others) 2001 (4) CTC 722 this Court took note of the fact that the conduct of the revision petitioner in keeping quite for over two years only on account of inability to mobilise other petitioner evidences would amount to gross negligence, irresponsible inactive attitude and therefore the petitioner lacks bonafides. Under those circumstances, this Court refused to condone the delay of 797 days in filing a petition to set aside the exparte decree. In the above case, this Court also referred to the decision of the Honourable Supreme Court reported in (M.K Prasad vs. P. Arumugam) (2001) 6 Supreme Court Cases 176, which was relied on by the learned counsel for the respondents (ii) In (Sundar Gnanaolivu rep. by his power of attorney agent Mr. Rukmini vs. Rajendran Gnanavolivu, rep. by its power of attorney agent Veina Gnanavalivu) 2003 1 Law Weekly 585, the Division Bench of this Court held that when the averments in the affidavit are untrue, lacks bona fides, then the case falls within the exception to the Rule of Liberal approach and it does not deserve the C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 liberal approach formula in matters relating to condonation of delay. In this case also, the Division Bench of this Court followed the decision of the Honourable Supreme Court reported in (M.K Prasad vs. P. Arumugam) (2001) 6 Supreme Court Cases 176, which was relied on by the learned counsel for the respondents. In Para Nos. 14-A and 15, the Division Bench of this Court held thus:- 14-A. In yet another Division Bench Judgment reported in (1990) 1 LLN 457 (Tamil Nadu Mercantile Bank Limited, Tuticorin versus Appellate Authority under the Tamil Nadu Shops and Establishments Act, Madurai and another) the principles relating to Rule of limitation have been discussed and the legal position has been stated by His Lordship Mr. Justice M. Srinivasan, as he then was, in paragraphs 14 and 17, which read as under:- \"14. .....If a litigant chooses to approach the Court long after the time prescribed under the relevant provisions of the law, he cannot say that no prejudice would be caused to the other side by the delay being condoned. The other side would have in all probability destroyed the records thinking that the records would not be relevant as there was no further proceeding in the matter. Hence, to view a matter of condonation of delay, with a presupposition that no prejudice will be caused by the condonation of delay to the respondent in that application will be fallacious. In our view, each has to be decided on C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 the facts and circumstances of the case. Length of the delay is a relevant matter to be taken into account, while considering whether the delay should be condoned or not. It is not open to any litigant to fix his own period of limitation for instituting proceedings for which law has prescribed periods of limitation. \"17. .....Once it is held that a party has lost his right to have the matter considered on merits because of his own inaction for a long time, it cannot be presumed to be non-deliberate delay, and in such circumstances of the case, he cannot be heard to plead that substantial justice deserved to be preferred as against technical considerations. WE are of the view that the question of limitation is not merely a technical consideration. Rules of limitation are based on principles of sound public policy and principles of equity. Is a litigant liable to have a Damocles' sword hanging over his head indefinitely for a period to be determined at the whims and fancies of the opponent (underlining is ours) 15. On a conspectus reading of the above principles set out in the various judgments, it is well settled that a liberal approach should be extended while considering the application for condonation of delay. Sufficient caution has been exhibited to note that wherever there is lack of bona fides or attempt of hood-wink the Court by the party concerned who has come forward with an application for condonation of delay, in such cases, no indulgence should C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 be shown by condoning the delay applied for. It is also clear to the effect that it is not the number of days of delays that matters, but the attitude of the party which caused the delay. In other words when the Court finds that the party who failed to approach the Court within the time stipulated comes forward with an explanation for condoning the delay, the Court if satisfied that the delay occasioned not due to the deliberate conduct of the party, but due to any other reason, then by sufficiently compensating the prejudice caused to the other side monetarily, the condonation of delay can be favourably ordered.\" (iii) In the decision of this Court reported in (G. Jayaraman vs. Devarajan) 2007 (2) CTC 643, this Court held in a case where there was a delay of 553 days in filing an application to set aside the decree that discretion must not be exercised in an arbitrary or vague manner but must be exercised with vigilance and circumspection. It was further held that delay cannot be condoned as a matter of judicial generosity and the right accrued to the other side ought to be kept in view while considering the plea relating to affording opportunity to advance substantial justice. The facts involved in that case is identical to the facts of the case on hand. In that case, the decree holder was prevented from enjoying the fruits of the decree for about 8 years because of the filing of one petition after the other by the defendants to successfully stall the execution of the decree. In that context, this Court held that liberal C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 approach theory would cause prejudice to the plaintiff/decree holder and the discretion exercised by the trial court to condone the delay of 553 days cannot be sustained. In Para Nos. 9, 10 and 16, this Court held as follows:- \"9. Of course, it is the consistent view taken by the Supreme Court in various decisions that \"sufficient cause\" appearing in Section 5 of the Limitation Act should be liberally considered and the Court should be slow in shutting the door of justice to a litigant on the score of limitation. When the reason for the delay is properly explained, the Court is to adopt a pragmatic approach to condone the delay when there is no negligence, inaction or want of bona fide on the part of the Applicant. 10. At the same time, the discretion must be exercised in any arbitrary or vague or fanciful manner, but must be exercised like any other judicial discretion with vigilance and circumspection. Delay cannot be condoned as a matter of judicial generosity. Where delay could have been avoided by due care and caution, the Court may not exercise the discretion to condone the delay. 16. As stated earlier, delay cannot be excused as a matter of judicial generosity. Rendering substantial justice is not to cause prejudice to the opposite party. Money suit was filed way back in 1998 and Revision petitioner/plaintiff has been pursuing the matter for nearly 7 to 8 years. The matter could not reach finality because of one Application C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 or other filed by the respondent/Defendant. The party claiming indulgence must prove that he is reasonably diligent in prosecuting the matter. This test for condoning the delay is not satisfied in this case. Liberal exercise of jurisdiction under Section 5 of the Act would cause prejudice to the plaintiff/Decree holder, who has been pursuing the money suit for quite a long time. In condoning the delay, there is improper exercise of discretion, and therefore, the impugned order cannot be sustained.\" (iv) In (Shanmugam vs. Chokkalingam) 2009 (5) CTC 48 this Court held that the petitioner therein do not deserve indulgence inasmuch as the averments made by him in the affidavit are false and untrue. Under those circumstances, this Court refused to condone the delay of 332 days in filing a petition to set aside the exparte decree. (v) In (Oriental Aroma Chemical Industries Limited vs. Gujarat Industrial Development Corporation and another) 2010 AIR SCW 1788 the Honourable Supreme Court rejected an application for condonation of delay of 4 years in filing an application to set aside an exparte decree on the ground that the explanation offered for condonation of delay is found to be not satisfied. (vi) In the decision of this Court reported in (K.M. Balasubramaniam vs. C. Loganathan and another) 2011 (2) MWN (Civil) 741 this Court had an occasion to consider a case for condonation of delay of 1581 days in re-presenting an application to set aside the exparte decree. In that case, C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 the suit was filed for recovery of money which was decreed exparte and the Execution Petition filed by the decree holder was also ordered exparte. Thereafter, the decree holder obtained sale certificate also and at the time of taking delivery of the property, the petitioner therein filed the application to condone the delay of 1581 days in setting aside the exparte decree. In that case also, a Petition under Section 47 of the CPC was filed stating that the decree is not executable. In the above facts and circumstances, this Court held that the delay offered for condonation of delay is not proper and acceptable. In Para Nos. 18 and 19, it was held as follows:- 18. It is not in dispute that the suit was filed based on a pro-note dated 01.08.1999 and the ex parte decree was passed on 08.09.2004, nearly 7 years back. It is an admitted fact that the Petitioner appeared in the suit as well as in the earlier E.P. No. 87 of 2005 through Counsel, however, the alleged petition filed under Order 9, Rule 13, C.P.C. to set aside the ex parte decree was not represented for more than four years and four months. Though arrest was ordered in the earlier E.P., however, as the petitioner evaded service, the E.P. was closed, then the present Execution Petition in E.P. No. 292 of 2006 was filed against the property belongs to the petitioner. Notice was served properly on the petitioner/judgment debtor and after proclamation of sale, property was sold in public auction. The successful bidder, a third party to the Suit paid the C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 entire amount. As the sale was confirmed and Sale certificate was also issued, the amount deposited by the auction purchaser was withdrawn by the decree-holder by filing a petition before the Court below and full satisfaction was recorded. At this stage, the petitioner is not entitled to seek an order to condone the inordinate delay of 1581 days in representing an unnumbered Application, seeking an order to set aside the exparte. It cannot be disputed that the length of delay is not a matter for deciding the petition filed under Section 5 of Limitation Act and rendering substantial justice is the paramount consideration. 19. In the instant case, it is clear that the Petitioner/Judgment Debtor has deliberately adopted delay tactics at various stages. Having appeared through Counsel in the earlier Execution Petition in E.P. No. 87 of 2005, evaded arrest and has not challenged various orders passed in the Execution Petitions has casually filed the Application before the court below to condone the delay in representing an Application filed under Order 9, Rule 13, C.P.C. and also filed a Petition under Section 47, C.P.C. which would show that it is an abuse of process of law, as argued by the learned counsel for the Respondents. On the aforesaid circumstances, I could find no merit in favour of the petitioner to allow the inordinate delay of 1581 days in representing an unnumbered Application, seeking an order to set aside the ex parte decree. As found by the Court C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 below, the inordinate delay has not been satisfactorily explained by the Petitioner herein. While deciding the Petition, this Court has to consider the substantial justice. I am of the view that allowing the petition would render only injustice to the Second respondent/auction purchaser, who was impleaded by the order of this Court in this Revision and the first respondent/decree holder, hence, to meed the ends of justice, the Civil Revision Petition is liable to be dismissed, as an abuse of process of law by the Petitioner herein.\" (vii) In (Postmaster General and others vs. Living Media India Limited and another) (2012) 3 SCC 563, the Honourable Supreme Court, while dismissing the application for condonation of delay of 427 days in filing the Special Leave Petition, held condonation of delay is not an exception and it should not be used as an anticipated benefit for the government departments. In that case, the Honourable Supreme Court held that unless the Department has reasonable and acceptable reason for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red tape in the process cannot be accepted. In Para Nos. 25, 26, 27, 28, and 29, the Honourable Supreme Court dealt with the scope of 'sufficient cause' and held as follows:- 25. We have already extracted the reasons as C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 mentioned in the \"better affidavit\" sworn by Mr. Aparajeet Pattanayak, SSRM, Air Mail Sorting Division, New Delhi. It is relevant to note that in the said affidavit, the Department has itself mentioned and is aware of the date of the judgment of the Division Bench of the High Court in Office of the Chief Postmaster vs. Living Media Limited as 11.09.2009. Even according to the deponent, their counsel had applied for the certified copy of the said judgment only on 08.01.2010 and the same was received by the Department on the very same day. There is no explanation for not applying for the certified copy of the impugned judgment on 11.09.2009 or at least within a reasonable time. The fact remains that the certified copy was applied for only on 08.01.2010 i.e., after a period of nearly four months. 26. In spite of affording another opportunity to file better affidavit by placing adequate material, neither the Deponent nor the person-in-charge has filed any explanation for not applying the certified copy within the prescribed period. The other dates mentioned in the affidavit which we have already extracted, clearly show that there was delay at every stage and except mentioning the dates of receipt of the file and the decision taken, there is no explanation as to why such delay had occasioned. Though it was stated by the Department that the delay was due to unavoidable circumstances and genuine difficulties, the fact remains that from day one the Department or the C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 person/persons concerned have not evinced diligence in prosecuting the matter to this Court by taking appropriate steps. 27. It is not in dispute that the person (s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us. 28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona fides, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody, including the Government. 29. In our view, it is the right time to inform all the C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.\" 11.In the case of Sundar Gnanaolivu Vs. Rajendran Gnanavolivu reported in MANU/TN/2123/2003, the Division Bench made following observations; \u201c8. In the judgment reported in MANU/SC/0573/1998 : 1998 (2) CTC 533 (N. Balakrishnan versus M. Krishnamurthy), the position has been set out as under in para 14: 14. It must be remembered that in every case of delay there can be some lapse 'on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 mala fides or it is put-forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation.... (Underlining is ours) 9. In the Judgment reported in MANU/SC/0398/2001 : 2001(6) SCC 176 M.K. Prasad versus P. Arumugam), it has been held as under in para 9. 9.Again in State of W.B. v. Administrator, Howrah Municipality and G. Ramegowda Major v. Special Land Acquisition Officer this Court observed that the expression \"sufficient cause\" in Section 5 of the Limitation Act must receive a liberal construction so as to advance substantial justice and generally delays be condoned in the interest of justice where gross negligence or deliberate inaction or lack of bona fides is not imputable to the party seeking condonation of delay. Law of limitation has been enacted to serve the interests of justice and not to defeat it. Again in N. Balakrishnan v. M. Krishnamurthy this Court held that acceptability of explanation for the delay is the sole criterion and length of delay is not relevant, in the absence of anything showing mala fide or deliberate delay as a dilatory tactic, the court should normally condone the delay.... (Underlining is ours) C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 10.In a recent Judgment of the Honourable Supreme Court reported in MANU/SC/0135/2002 : 2002(3) SCC 195 = 2002-3-L.W.417 (Ram Nath Sao @ Ram Sahu & Others versus Gobardhan Sap & Others), the position has been succinctly set out in para 12 which reads as under: 12. ...Acceptance of explanation furnished should be the rule and refusal, an exception, more so when no negligence or inaction or want of bona fides can be imputed to the defaulting party. On the other hand, while considering the matter the courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine-like manner.... (Underlining is ours) 11. In the Division Bench Judgment of our High Court, in the Judgment reported in MANU/TN/0252/2000 : 2000 (3) CTC 727 = 2000 3 L.W. 938 (C. Subraniam versus Tamil Nadu Housing Board rep. by its Chairman And Managing Director), the position has been stated as under in para 31: 31. To turn up the legal position, (1) the work \"sufficient cause\" should receive liberal construction to do substantial justice; (2) what is \"sufficient cause\" is a question of fact in a given circumstances of the case; (3) it is axiomatic that condonation of delay is discretion of the Court; (4) length of delay is no matter, but acceptability of the explanation is the only criterion' (5) once the Court accepts the explanation as \"sufficient\", it is the result of positive C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 exercise of discretion and normally the superior court should not disturb in such finding unless the discretion was exercised on wholly untenable or perverse; (6) The rules of limitation are not meant to destroy the rights of the parties but they are meant to see that the parties do not resort to dilatory tactics to seek their remedy promptly; (7) Unless a party shows that he/she is put to manifest injustice or hardship, the' discretion exercised by the lower Court is not liable to be revised; (8) If the explanation does not smack of mala fides or it is put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor; (9). If the delay was occasioned by party deliberately to gain time, then the court should lean against acceptance of the explanation and while condoning the delay, the Court should not forget the opposite party altogether. 13. In yet another Division Bench Judgment reported in 1990 (1) LLN 457 (Tamil Nadu Mercantile Bank Ltd. Tuticorin versus Appellate Authority Under The Tamil Nadu Shops And Establishments Act, Madurai And Another), the principles relating to rule of limitation have been discussed and the legal position has been stated by His Lordship Mr. Justice M. Srinivasan, as he then was, in paragraphs 14 and 17 which read as under: 14. ...If a litigant chooses to approach the Court long after the time prescribed under the relevant provisions of the law, he cannot say that no prejudice would be caused to the other side by the delay being condoned. The other side C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 would have in all probability destroyed the records thinking that the records would not be relevant as there was no further proceeding in the matter. Hence to view a matter of condonation of delay with a presupposition that no prejudice will be caused by the condonation of delay to the respondent in that application will be fallacious. In our view, each case has to be decided on the facts and circumstances of the case. Length of the delay is a relevant matter to be taken into account while considering whether the delay should be condoned or not. It is not open to any litigant to fix his own period of limitation for instituting proceedings for which law has prescribed periods of limitation. 17. ...Once it is held that a party has lost his right to have the matter considered on merits because of his own inaction for a long time, it cannot be presumed to be non- deliberate delay, and in such circumstances of the case, he cannot be heard to plead that substantial justice deserved to be preferred as against technical considerations. We are of the view that the question of limitation is not merely a technical consideration. Rules of limitation are based on principles of sound public policy and principles of equity. Is a litigant liable to have a Damocles' sword hanging over his head indefinitely for a period to be determined at the whims and fancies of the opponent? (Underlining is ours) 14. On a conspectus reading of the above principles set out C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 in the various judgments, it is well settled that a liberal approach should be extended while considering the application for condonation of delay. Sufficient caution has been exhibited to note that wherever there is lack of bona fides or attempt to hood-wink the Court by the party concerned who has come forward with an application for condonation of delay, in such cases, no indulgence should be shown by condoning the delay applied for. It is also clear to the effect that it is not the number of days of delay that matters, but the attitude of the party which caused the delay. In other words when the Court finds that the party who failed to approach the Court within the time stipulated comes forward with an explanation for condoning the delay, the Court if satisfied that the delay occasioned not due to the deliberate conduct of the party, but due to any other reason, then by sufficiently compensating the prejudice caused to the other side monetarily, the condonation of delay can be favorably ordered. The Division Bench in the above said case made an observation that a liberal approach should be extended while considering the application for condonation of delay. Sufficient caution has been exhibited to note that wherever there is a lack of bonafides or attempt to hoodwink the Court by the party concerned who has come forward with C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 an application for condonation of delay, in such cases, no indulgence should be shown by condoning the delay applied for. It is observed that question of limitation is not merely a technical consideration but based on principles of sound public policy as well as equity and that a litigant cannot be expected to have Damocles' sword hanging over his had indefinitely for a period to be determined at the whims and fancies of the opponent. 12. Thus, the Courts have taken a clear view that the intention of the parties in filing appeal belatedly after causing prejudice to the interest of the other parties, then also the delay cannot be condoned by exercising the power of discretion. Therefore all these aspects are to be considered. Mechanical or routine approach is impermissible, may be permissible in respect of the delay of short span and not otherwise. 13. In the case of Lanka Venkateswarlu (D) by L.R.s Vs. State of A.P. & others reported in C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 MANU/SC/0153/2011, the Hon\u2019ble Supreme Court made an observation as follows; \u201c20. In the case of M. Balakrishnan (supra), this Court again reiterated the principle that rules of limitation are not meant to destroy the rights of parties. They are meant to see that the parties do not resort to dilatory tactics, but seek their remedy promptly. 21 to 25......... 26.We are at a loss to fathom any logic or rationale, which could have impelled the High Court to condone the delay after holding the same to be unjustifiable. The concepts such as \"liberal approach\", \"justice oriented approach\", \"substantial justice\" can not be employed to jettison the substantial law of limitation. Especially, in cases where the Court concludes that there is no justification for the delay. In our opinion, the approach adopted by the High Court tends to show the absence of judicial balance and restraint, which a Judge is required to maintain whilst adjudicating any lis between the parties. We are rather pained to notice that in this case, not being satisfied with the use of mere intemperate language, the High Court resorted to blatant sarcasms. The use of unduly strong intemperate or extravagant language in a judgment has been repeatedly disapproved by this Court in a number of cases. Whilst considering applications for condonation of delay under Section 5 of the C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law. The discretion has to be exercised in a systematic manner informed by reason. Whims or fancies; prejudices or predilections can not and should not form the basis of exercising discretionary powers.\" 14. In the case of Pundlik Jalam Patil (D) by Lrs. Vs. Exe.Eng.Jalgaon Medium Project & others reported in MANU/SC/4694/2004, the Hon\u2019ble Supreme Court held as follows: \u201c15. In Ajit Singh Thakur Singh and anr. vs. State of Gujarat [ (1981) 1 SCC 495 ] this court observed : \"It is true that a party is entitled to wait until the last day of limitation for filing an appeal. But when it allows limitation to expire and pleads sufficient cause for not filing the appeal earlier, the sufficient cause must establish that because of some event or circumstance arising before limitation expired it was not possible to file the appeal within time. No event or circumstance arising after the expiry of limitation can constitute sufficient cause.\" (Emphasis supplied) This judgment squarely applies to the facts in hand. C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 17. Shri Mohta, learned senior counsel relying on the decision of this court in N. Balakrishnan vs. M.Krishnamurthy [(1998) 7 SCC 123] submitted that length of delay is no matter, acceptability of explanation is the only criterion. It was submitted that if the explanation offered does not smack of mala fides or it is not put forth as part of dilatory tactics the court must show utmost consideration to the suitor. The very said decision upon which reliance has been placed holds that the law of limitation fixes a life span for every legal remedy for the redress of the legal injury suffered. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of Limitation is thus founded on public policy. The decision does not lay down that a lethargic litigant can leisurely choose his own time in preferring appeal or application as the case may be. On the other hand, in the said judgment it is said that court should not forget the opposite party altogether. It is observed: \"It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.\" 18. In Ramlal and others vs. Rewa Coalfields Ltd. C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 [ AIR 1962 SC 361], this court held that: \"in construing Section 5 of the Limitation Act, it is relevant to bear in mind two important considerations. The first consideration is that the expiration of period of limitation prescribed for making an appeal gives rise to right in favour of the decree holder to treat the decree as binding between the parties and this legal right which has accrued to the decree holder by lapse of time should not be light heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause of excusing delay is shown discretion is given to the court to condone the delay and admit the appeal. `It is further necessary to emphasis that even if the sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court by section 5. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage the diligence of the party of its bona fides may fall for consideration.\" On the facts and in the circumstances, we are of the opinion that the respondent beneficiary was not diligent in availing the remedy of appeal. The averments made in the application seeking condonation of delay in filing appeals do not show any acceptable cause much less sufficient cause to exercise courts' discretion in its favour.\" C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 15. In the case of Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy & Others reported in MANU/SC/0932/2013, the Hon\u2019ble Apex Court of India made an observation as follows: \u201c15. From the aforesaid authorities the principles that can broadly be culled out are: i) There should be a liberal, pragmatic, justice-oriented, non- pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice. ii) The terms sufficient cause should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact- situation. iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of. v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice. vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play. viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach. x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation. xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 judicial discretion which is founded on objective reasoning and not on individual perception. xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude. 16. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are: - a) An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective. c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto. d) The increasing tendency to perceive delay as a non- serious matter and, hence, lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed, of course, within legal parameters.\" It is very important to consider the judgement of the C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 Hon\u2019ble Supreme Court in the case of Esha Bhattacharjee, wherein the Hon'ble Apex Court laid down certain principles which were culled out particularly and those principles are the guiding principles for the purpose of deciding the petitions filed to condone the delay. The above principles, cited supra reveals that the concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed totally to unfettered free play. 16. The concepts such as \u201cliberal approach\u201d, \u201cjustice oriented approach\u201d, \u201csubstantial justice\u201d cannot be employed in jettison the substantial law of limitation. The law of limitation is substantial and therefore the principles laid down is to be scrupulously followed while condoning the delay under the law of limitation. The limitation has got a specific purpose and object and more specifically to avoid prejudice to the respective parties. In the event of prolongation or protraction of the litigation, undoubtedly and for an unspecified period when the specific law of limitation has got a specific purpose and object, then the C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 power of discretion is to be exercised cautiously. Power of discretion cannot be exercised in the absence of any valid reason. In other words, powers can be exercised for the purpose of passing orders only by recording reasons which must be candid and convincing and must be passed on certain sound legal principles. Therefore, recording of reasons for exercising discretionary powers is one of the elementary principles of law. In the event of exercising discretionary powers without recording reasons, undoubtedly the same would cause not only prejudice and will set a bad principle and therefore, the Courts must be cautious while exercising power of discretion more specifically in such matters where the law of Limitation is substantial.\u201d 5. In view of the legal principles and the facts and circumstances in the present case on hand, this Court is of an opinion that the petitioner has not made out any acceptable ground for the purpose of condoning the delay. C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 6. Consequently, the Civil Miscellaneous Petition in C.M.P.No.15283 of 2019 is devoid of merits and the same stands dismissed. Accordingly, AS.SR.No.85894 of 2019 is rejected at the SR Stage itself. No costs. 11.12.2019 Kak Index:Yes Speaking order C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 S.M.SUBRAMANIAM, J. Kak To The II Additional District Judge, Puducherry. C.M.P.No.15283 of 2019 in AS.SR.No.85894 of 2019 11.12.2019",
        "1922398": "PETITIONER: GANESH DASS SREERAM, ETC. A Vs. RESPONDENT: INCOME TAX OFFICER, 'A' WARD, SHILLONG AND OTHERS ETC. DATE OF JUDGMENT30/10/1987 BENCH: DUTT, M.M. (J) BENCH: DUTT, M.M. (J) PATHAK, R.S. (CJ) MISRA RANGNATH CITATION: 1988 AIR 427 1988 SCR (1) 689 1987 SCC Supl. 442 JT 1987 (4) 208 1987 SCALE (2)894 ACT: Income Tax Act, 1961-Interest charged by Income Tax officer for delayed filing of returns-Legality of-Sub- section (4) of section 139 of the Act, as it stood before April l, 1971-Constitutional validity of. c HEADNOTE: % The appellants, registered firms under the Income Tax Act, 1961, filed delayed returns. The Income Tax officer assessed the appellants under section 143(3) of the Act and determined the total incomes of the appellants and the amounts of the tax payable by them. The Income Tax officer also determined and added, under sub-section (4) of section 139 of the Act, the amounts of interest on the amounts of tax payable by the appellants. The appellants challenged the charging of interest in the High Court by writ petitions. The High Court dismissed all but some writ petitions which were allowed in part to the extent that the Income tax officer was directed to take into account the advance tax paid by the assessees while calculating the interest. The appellants have filed Civil Appeals Nos. 1032-1036 of 1973, 1927-1933 of 1978 and 1288 and 1289 of 1980 against the decision of the High Court. Allowing Civil Appeal No. 1035 of 1973 and dismissing all the other appeals, the Court, ^ HELD: Sub-section (4) of section 139 of the Income Tax Act is a substantive provision, which does not provide for the making of an application to the Income Tax officer for extention of the date for furnishing return. The sub-section provides that even though a person does not furnish the return within the time allowed under sub-section (1) or (2) of section 139, yet he may furnish the same before the end of four assessment years concerned. The substantive provisions of subsections (1) and (2) specify the time within which the return has to be filed. The provisos to the sub-sections confer power on the Income-tax officer to extend the date for filing the return on an application. The expression \"time allowed\" in sub-section (4) is not confined only to the extension of time granted by the Income-tax officer but also to the time originally fixed for 690 filing the returns under sub-section(1) and (2). [694G- H;695A-D] The Income-Tax officer is entitled to charge interest in accordance with the provisions of clause (iii) of the proviso to sub-section (1) of section 139 in a case where time has been extended by the Income Tax officer to file returns on application made by the assessee and the return is not filed within the time allowed, and in a case where no such application has been made by the assessee, and the return is filed beyond the time allowed but before the end of the four assessment years concerned. [695D-F] Secondly, as decided by this Court in Central Provinces Manganese Ore Co. Ltd. v. Commissioner of Income-Tax, [1986] 160 ITR 961, and Commissioner of Income Tax A.P. v. Chandra Sekhar, (1955) 151 ITR 433, the interest is levied by way of compensation, and not by way of penalty as contended by the appellants. [696A] The contention of the appellants that the provisions of Sub-Section (4) of section 139, read with clause (iii) (a) of the proviso to Sub-Section (1) of section 139 is discriminatory and violative of Article 14 of the Constitution because Sub-Section (4) has placed the registered firms in a separate category inasmuch as they have to pay interest calculated on the amount of tax payable by them as unregistered firms, and a registered firm is treated as an unregistered firm, for purposes of qualification of interest, is not comprehensible, Section 139 (4) read with clause (iii)(a) of the proviso to section 139(1), as it stood prior to April 1, 1971, has placed the registered firms and the unregistered firms on the same footing and is not violative of Article 14 of the Constitution and is quite legal and valid. [697H; 698A-D] Where advance tax duly covers the entire amount of the tax assessed, there is no question of charging a registered firm with interest if the return is filed beyond the time allowed, regard being given to the fact that payment of interest is only compensatory in nature. As the entire amount of the tax is paid by way of advance tax, the question of payment of any compensation does not arise, and accordingly, in the facts and circumstances of the case in the C.A. No. 1035 of 1973, the Income Tax of officer was not justifed in charging interest, and the assessee in that case is entitled to refund of the amount paid by way of interest. [699B-C, E] Commissioner of Income- Tax, A . P. v. M. Chandra Sekhar, [1955] 151 ITR 433, Central Provinces Manganese ore Co. Ltd. v. Commissioner of Income Tax, [1986] 160 I.T.R. 961; Jain Brothers 691 and others v. Union of India and others, [1970] 77 ITR 109; M. Nagappa v. Income Tax officer, Central Circle I, Bangalore, [1975] 99 ITR 33; Mahendra Kumar Ishwarlal and Co. v, Union of India, [1973] 91 ITR 101 and [1974] 94 ITR 65; Chhotalal & Co. v. Income-Tax officer; [1976] 105 ITR 230; Jiwanmal Hospital v. Income-Tax officer, [1979] 119 ITR 439; Hindustan Steel Forges v. Commissioner of Income-Tax, [1980] 121 ITR 793 and Mohanlal Soni v. Union of India, [1983] 143 ITR 436, referred to. JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal Nos 1032- 1036 of 1973. From the Judgment and order dated 16.2.1973 of the Gauhati High Court in Civil Rule Nos. 1142 to 1146 of 1971 S.T. Desai, R.P Agarwala, Mrs Kum Kum Sen, Praveen Kumar, D.N. Mukherjee, Ranjan Mukherjee and N.R. Choudhary for the Appellants. Dr. V. Gauri Shanker and Miss A. Subhashini for the Respondents. The Judgment of the Court was delivered by DUIT, J.The appellants, who are all registered firms within the meaning of section 2(39) of the Income-Tax Act, 1961, hereinafter referred to as 'the Act', have preferred these appeals against the judgments of the Gauhati High Court overruling the challenge of the appellants as to the legality of the interest charged by the Income-tax officer for the delayed filing of returns and also as to the constitutional validity of sub-section (4) of section 139 of the Act, as it stood before April 1, 197 l The relevant provisions of section 139, as it stood prior to April 1. 1971, are as follows:- \"S. 139(1). Every person, if his total income .. ...... during the previous year exceeded the maximum amount which is not chargeable to Income- tax, shall furnish a return of his income ................. (a) in the case of every person .. .. before the expiry of six months from the end of the previous year ... , or before the 30th day of June of the assessment year, whichever is later; (b) in the case of every other person, before the 30th day of June of the assessment year: Provided that, on an application made in the pre scribed manner, the Income-tax officer may, in his discretion, extend the date for furnishing the return- (i) in the case of any person whose total income includes any income from business or profession the previous year in respect of which expired on or before the 31st day of December of the year immediately preceding the assessment year, and in the case of any person referred to in clause (b), up to a period not extending beyond the 30th day of September of the assessment year without charging any interest; (ii) in the case of any person whose total income includes any income from business or profession the previous year in respect of which expired after the 31st day of December of the year immediately preceding the assessment year, up to the 31st day of December of the assessment year without charging any interest; and (iii)up to any period falling beyond the dates mentioned in clauses (i) and (ii), in which case, interest at nine per cent per annum shall be pay able from the 1st day of October or the 1st day of January, as the case may be, of the assessment year to the date of the furnishing of the return- (a) in the case of a registered firm or an unregistered firm which has been assessed under clause (b) of section 183, on the amount of tax which would have been payable if the firm had been assessed as an unregistered firm and (b) in any other case, on the amount of tax payable on the total income. reduced by the advance tax, if any, paid or by any tax deducted at source, as the case may be. (2). In the case of any person, who in the Income-tax officer's opinion, is assessable under this Act, whether on his own total income or on the total income of any other person during the previous year, the Income-tax officer may, before the end of the relevant assessment year, serve a notice upon him requiring him to furnish, within thirty days from the date of service of the notice, a return of his income or the income of such other person during the previous year, in the prescribed form and verified in the prescribed manner setting forthwith such other particulars as may be prescribed; Provided that on an application in the prescribed manner the Income-tax officer may, in his discretion, extend the date for the furnishing of the return, and when the date for furnishing the return, whether fixed originally or on extension, falls beyond the 30th day of September or, as the case may be, the 31st day of December of the assessment year, the provisions of sub- clause (iii) of the proviso to sub-section ( 1) shall apply. (4). Any person who has not furnished a return within the time allowed to him under sub- section (1) or sub-section (2) may before the assessment is made furnish the return for any previous year at any time before the end of four assessment years from the end of the assessment year to which the return relates, and the provisions of sub-clause (iii) of the proviso to sub-section (1) shall apply in every such case.\" In all these cases, it is not disputed that no application for extension of time to file returns was made by the appellants for the relevant assessment years. The returns were submitted before the assessment was made and also before the end of the four assessment years as mentioned in sub-section (4) of section 139 of the Act. The Income-tax officer assessed the appellants under section 143(3) of the Act and determined the total incomes of the appellants and the amounts of tax payable by them. In view of sub-section (4) of section 139, the Income tax officer also added to the amount of tax interest calculated at the rate of six per cent per annum on the amount of tax which would have H been payable if the firms had been assessed as unregistered firms. A Being aggrieved by the charging of interest under sub-section (4) read with clause (iii)(a) of the proviso to sub-section ( I) of section 139 of the Act, the appellants filed writ petitions before the Gauhati High Court, challenging the charging of interest and the validity of subsection (4) read with clause (iii)(a) of the proviso to sub-section ( 1) of section 139 of the Act as violative of Article 14 of the Constitution The Gauhati High Court, as stated already, overruled the challenge and dismissed the writ petitions except that some writ petitions were allowed in part only as the High Court directed the Income-tax officers to take into account the advance tax paid by the assessees before calculating the interest. Hence these appeals. The first contention made on behalf of the appellants is that it is clear from the provisos to sub-sections ( 1) and (2) of section 139 of the Act that unless an application is made for extension of the date for furnishing the return, the question of charging any interest on the amount of tax does not at all arise. A similar contention was made before the High Court by the appellants, but the High Court overruled the same. Much reliance has been placed on behalf of the appellants on an observation of this Court in Commissioner of Income-tax, A.P. v. M. Chandra Sekhar, [1955] 151 ITR 433. In that case, this Court has observed that it is only where the Income-tax officer extends the time for furnishing the return beyond September 30, or December 31, as the case may be, the interest becomes payable The said observation has been made by this Court relating to clause (iii) of the proviso to sub-section ( 1) of section 139 of the Act while considering the question whether charging of interest indicated that the Income-tax officer was satisfied that there was sufficient cause for the delay in filing the return of income and whether the cancellation of the penalties levied under section 27(1)(a) of the Act was justified. Nothing has, however, been said by this Court in respect of sub-section (4) of section 139 of the Act. Sub-section (4) is a substantive provision and it does not provide for making an application to the Income-tax officer for the purpose of extension of the date for the furnishing of the return. What is provided in sub-section (4) is that even though a person does not furnish the return within the time allowed to him under sub-section (I) or subsection (2), yet he may furnish the same before the end of the four assessment years concerned. The substantive provision of sub-sections (l) and (2) of section 139 specify the time within which the return has to be filed The provisos to sub-sections (1) and (2) confer power on the Income-tax officer to extend the date for filing the return on an application in that regard made by the assessee. So, it is clear that the expression 'time allowed' in sub-section (4) of section 139 is not confined only to the extension of time granted by the Income-tax officer, but also to the time originally fixed for the filing of returns under sub-sections ( 1) and (2) of section 139 of the Act. There may be two types of cases for the late filing of returns, namely ( 1) the assessee after getting the date extended by the Income tax officer under sub-section ( 1) or sub-section (2) of section 139 of the Act, does not file the return within the extended date, but files the same before the end of four assessment years concerned and (2) the assessee without filing any application for extension of time, files the return beyond the period mentioned in sub- section ( 1) or sub-section (2) but before the end of four assessment years in question. In either case, the provision of clause (iii) of the proviso to sub-section (l) of section 139 will apply. In other words, the Income-tax officer will be entitled to charge interest on the amount of tax in accordance with the provision of clause (iii) of the proviso to sub-section ( 1) of section 139. Thus, where time has been extended by the Income-tax officer on an application made in that regard by the assessee and the assessee does not file the return within the time allowed and where no such application has been made by the assessee, but the return is filed by him beyond the time allowed, but before the end of the four assessment years concerned, in either case, the Income-tax officer will be entitled to charge interest in accordance with the provision of clause (iii) of the proviso to sub-section (1) of section 139 of the Act. There is, therefore, no substance in the contention of the appellants that as the appellants had not made any application praying for the extension of time for the filing of returns, the Income-tax officer had no authority to charge interest under the provision of clause (iii) of the proviso to sub-section ( I) of section 139 of the Act The next question that requires consideration relates to the validity of sub-section (4) read with clause (iii)(a) of the proviso to subsection (I) of section 139. It is submitted by the learned Counsel appearing on behalf of the appellants that as, in view of the late filing of the returns, there is postponement of the payment of tax and the Revenue suffers loss on account of delayed payment of tax, the interest when levied takes the character of penalty This contention need not detain us long, for it has already been decided by this Court in Central Provinces Manganese ore Co. Ltd.. v. Commissioner of Income-tax, [ 1986] 160 ITR 1961 that interest is levied by way of compensation and not by way of penalty. In Chandra Sekhar's case (supra? this Court also has taken a similar view. The High Court, however, has taken the view that the interest charged partakes also of a penal character. In expressing that view, the High Court has placed reliance upon a decision of this Court in Jain Brothers and others v. Union of India and others, [ 1970] 77 ITR 109. In that case, this Court was mainly considering a challenge to section 271(2) of the Act, which is a penal provision, on the ground of contravention of Article 14 of the Constitution. The question whether charging of interest under the proviso to section 139(1) of the Act was in the nature of penalty or not, was not considered by this Court. Indeed, the subject-matter was different from that with which we are concerned. In view of the decisions of this Court in Chandra Sekhar's case (supra) and in the case of Central Provinces Manganese ore Co. Ltd. (supra), we hold that the charging of interest did not become transformed to penalty. It is urged on behalf of the appellants that all the assessees who are charged with interest for the late filing of returns, should be classified in one and the same category inasmuch as they are similarly situated, but sub- section (4) read with clause (iii) of the proviso to sub- section ( I) of section 139 of the Act has without any reasonable justification placed the registered firms in a separate category inasmuch as for the late filing of returns by such firms they are-saddled with interest to be calculated on the amount of tax payable by them as unregistered firms. It is submitted that such separate classification of the registered firms for the purpose of payment of interest under section 139, does not bear any nexus to the object sought to be achieved by the section and, accordingly, the provision of sub-section (4) read with clause (iii)(a) of the proviso to sub-section (1) of section 139 of the Act is discriminatory and violative of the provision of Article 14 of the Constitution and, as such, is void. In support of the contention, the appellants have placed much reliance upon a decision of the Karnataka High Court in M. Nagappa v. Income-tax officer, Central Circle 1, Bangalore, [ 1975] 99 ITR 33. In that case, a learned Single Judge of the Karnataka High Court has struck down as void the provision of sub-section (4) read with clause (iii)(a) of the proviso to sub-section ( 1) of section 139 The reason that weighed with the learned Judge is that the loss suffered by the Government which is sought to be compensated by the legislative measure should be the same in all cases, irrespective of the fact that the assessee who is responsible for it is a registered firm or. any other kind of assessee. If that is the case, then the amount claimed by way of interest should be directly correlated to the amount of tax withheld by the assessee without reference to the kind of assessee concerned in a given case. It is observed that the object of levy of interest being just reimbursement of what the Government would lose by delayed payment of tax resulting from the delayed filing of the return, it is clear that the levy of interest in the case of a registered firm on the tax which would have been payable if the firm had been assessed as an unregistered firm, is outside the said object. Accordingly, it has been held that section 139(4) to the extent it required a registered firm to pay interest at the specified rate on the tax assessed as if it were an unregistered firm, whenever the registered firm did not file the return within the specified time, was violative of Article 14 of the Constitution and is, therefore, void. That decision of the learned Single Judge has been upheld by a Division Bench of the Karnataka High Court and is since reported in [ 1981] 129 ITR 516. The Karnataka High- Court, before holding that provision of sub-section (4) of section 139 read with clause (iii)(a) of the proviso to sub-section ( 1) of section 139 of the Act as violative of Article 14 of the Constitution, has not considered the reason why, when a registered firm submits a return beyond time, it is charged with interest calculated on the amount of tax which would have been payable if the firm had been assessed as an unregistered firm. It is because of certain privileges which have been conferred on a registered firm. One of the privileges is that the firm is considered as an assessable unit and is taxed at a reduced rate and the partners are assessed on their respective shares in the income of the firm. This privilege which has been conferred on a registered firm by the Act, is not available to an unregistered firm. The Legislature is, however, competent to withhold any of the privileges conferred on a registered firm if it violates any of the provisions of the Act. A registered firm is required to file its return within the time as prescribed by the Act. Clause (iii)(a) of the proviso to section 139(1) read with sub-section (4) of section 139 in effect only provides for the withdrawal of the privilege of the registered firm to be assessed at a reduced rate because of its non-compliance with the provisions of sub-sections (1) and (2) of section 139 of the Act. In other words, the registered firm is treated as an unregistered firm for purposes of quantification of interest. The contention of the appellants that by treating the registered firms as unregistered firms for the charging of interest, the Legislature has placed the registered firms in a separate category is not at all comprehensible. On the other hand, by treating the registered firms as unregistered firms, the Legislature has avoided the discrimination that would have been there if the registered firms were not so treated for the purpose of charging of interest. In other words, if the registered firms had been charged with interest on the amount of tax assessed at a reduced rate for the late filing of the returns, there would have been discrimination between registered firm and unregistered firms. When a registered firm and an unregistered firm commit the same default in filing returns beyond the time allowed under sub-sections ( 1) and (2) of section 139 of the Act, it would be unreasonable and unjust to charge two different rates of interest-one at a reduced rate for the registered firm and the other at a higher rate for the unregistered firm. So, in our opinion, section 139(4) read with clause (iii)(a) to the proviso of section 139(1) of the Act, as it stood prior to April 1, 1971, has placed the registered firms and the unregistered firms on the same footing as, for the purpose of interest, they are similarly situated. Dr. Gouri Shankar, learned Counsel appearing for the Revenue, has pointed out to us that except the Karnataka High Court, other High Courts, namely, Madras High Court, Gujarat High Court, Madhya Pradesh High Court, Punjab & Haryana High Court and the Calcutta High Court in Mahendrakumar Ishwarlal & Co. v. Union of India, [1973] 91 ITR 101, since affirmed on an appeal reported in [1974] 94 ITR 65; Chhotalal & Co. v. Income-tax officer, [1976] 105 ITR 230; Jiwanmal Hospital v. Income-tax officer, [1979] 119 ITR 439; Hindustan Steel Forges v. Commissioner of Income- tax, [ 1980] 121 ITR 793 and Mohanlal Soni v. Union of India, [ 1983] 143 ITR 436 respectively have taken the view that treating of registered firms as unregistered firms for the purpose of charging of interest for the late filing of returns cannot be said to be arbitrary and violative of Article 14 of the Constitution. The view expressed in these decisions, in our opinion, is correct. As has been noticed already, the Karnataka High Court did not consider the question of withholding of the privileges conferred on the registered firm on their default in filing returns within the time allowed under sub-sections (1) and (2) of section 139 of the Act, so that they may be treated on equal footing with unregistered firms making the same default. In the circumstances, no discrimination has been made between a registered firm and an unregistered firm and, accordingly, the provision of sub-section (4) of section 139 read with clause (iii)(a) of the proviso to sub-section (1) of section 139 of the Act is not violative of Article 14 of the Constitution and is quite legal and valid. The decision of the Karnataka High Court in Nagappa's case (supra), as affirmed on appeal by the Division Bench of that High Court, in so far as it declares the said provision as ultra vires Article 14 of the Constitution, is erroneous. Before we part with these appeals, we think we should clarify one situation, namely, where the advance tax duly paid covers the entire amount of tax assessed, there is no question of charging the registered firm with interest even though the return is filed by it beyond the time allowed, regard being had to the fact that payment of interest is only compensatory in nature. As the entire amount of tax is paid by way of advance tax, the question of payment of any compensation does not arise. In C.A. No. 1035 of 1973, it appears that total tax for the assessment year 1968-69 was assessed at RS.. 16,288. The assessee paid advance tax amounting to Rs.39,018 in three instalments on 25.9.1967, 24.1.1968 and 2.3.1968. It is apparent that the amount of advance tax paid by the assessee fully covered the amount of tax payable by it. In spite of that, the Income-tax officer charged the assessee for the said assessment year a sum of Rs. 14,233 as interest under section 139 of the Act for the delayed filing of the return. As has been observed earlier, when the amount of tax and already been paid in the shape of advance tax, the question of payment of compensation by way of interest does not arise and the Income-tax officer was not, therefore, justified in charging interest. The assessee is, therefore, entitled to get refund of the amount paid by way of interest for the said assessment year. The Income-tax officer is directed to refund to the assessee the amount paid on account of interest. In the result, C.A. No. 1035 of 1973 is allowed and the remaining appeals are dismissed. There will, however, be no order as to costs in any of these appeals. S.L. Appeal No. 1035/73 allowed and others dismissed.",
        "136341809": "PETITIONER: KULDEEP SINGH Vs. RESPONDENT: THE COMMISSIONER OF POLICE & ORS. DATE OF JUDGMENT: 17/12/1998 BENCH: S.SAGHIR AHMAD, & S.P. KURDUKAR., JUDGMENT: -------- S.SAGHIR AHMAD -------------- Leave granted. The appellant, a constable in the Delhi Police was dismissed, after a regular departmental enquiry, from service, by order dated 03.05.1991, passed by Dy Commissioner of Police, South District, New Delhi, which was upheld in appeal by Addl. Commissioner of Police by his order dated 22.07.1991. The appellant then approached the Central Administrative Tribunal, Principal Bench, New Delhi and the Tribunal, by the impugned judgment dated 28th February, 1997, dismissed the Claim Petition. A writ Petition filed before the Delhi High Court against this judgment was dismissed on 19.09.1997 as not maintainable as the judgment passed by the Tribunal was given before the date on which the decision of this Court was rendered in L.Chandra Kumar Vs. Union of India & Others, AIR 1997 SC 1125 = (1997) 3 SCC 261, in which it was held that a writ petition against the order passed by the Tribunal, constituted under the Administrative Tribunal, Act, 1985, would be maintainable (prospectively) before a High Court. The Review Application filed against the judgment of the Tribunal was dismissed on 26.05.1997. Learned counsel for the appellant has contended that the findings recorded by the Enquiry Officer cannot be sustained as the enquiry itself was held in utter violation of the principles of natural justice. It is also contended that there was no evidence worth the name to sustain the charge framed against the appellant and therefore, the findings are perverse particularly as no reasonable person could have come to these findings on the basis of the evidence brought on record. Learned counsel appearing on behalf of Union of India has, on the other hand, contended that the enquiry was held in consonance with the principles of natural justice and during the course of the enquiry, full opportunity was given to the appellant to defend himself. As far the evidence is concerned, it is contended that though it is true that none of the complainant was examined but on account of Rule 16(3) of the Delhi Police (F&A) Rules, 1980, it was not required to produce the complainant in person as the Rule itself contemplated that in the absence of a witness whose presence could not be procured without undue delay, inconvenience or expense, his statement, already made on an earlier occasion, could be placed on record in the departmental enquiry and the matter could be decided on that basis. It was under this Rule that the previous joint statement of the complainants was brought on record without examining any of them. Learned counsel for the respondents contended that the scope of judicial review in disciplinary proceedings is extremely narrow and limited. The court cannot, it is contended, re-examine or re-appraise the evidence and substitute its own conclusion in place of the conclusions arrived at by the Enquiry Officer or the disciplinary authority on that evidence. It is no doubt true that the High Court under Article 226 or this Court under Article 32 would not interfere with the findings recorded at the departmental enquiry by the disciplinary authority or the Enquiry Officer as a matter of course. The Court cannot sit in appeal over those findings and assume the role of the Appellate Authority. But this does not mean that in no circumstance can the Court interfere. The power of judicial review available to the High Court as also to this Court under the Constitution takes in its stride the domestic enquiry as well and it can interfere with the conclusions reached therein if there was no evidence to support the findings or the findings recorded were such as could not have been reached by an ordinary prudent man or the findings were perverse or made at the dictate of the superior authority. In Nand Kishore vs. State of Bihar, AIR 1978 SC 1277 = (1978) 3 SCC 366 = 1978 (3) SCR 708, it was held that the disciplinary proceedings before a domestic Tribunal are of quasi-judicial character and, therefore, it is necessary that the Tribunal should arrive at its conclusions on the basis of some evidence, that is to say, such evidence which, and that too, with some degree of definiteness, points to the guilt of the delinquent and does not leave the matter in a suspicious state as mere suspicion cannot take the place of proof even in domestic enquiries. If, therefore, there is no evidence to sustain the charges framed against the delinquent, he cannot be held to be guilty as in that event, the findings recorded by the Enquiry Officer would be perverse. The findings, recorded in a domestic enquiry, can be characterised as perverse if it is shown that such a finding is not supported by any evidence on record or is not based on the evidence adduced by the parties or no reasonable person could have come to those findings on the basis of the that evidence. This principle was laid down by this Court in State of Andhra Pradesh vs. Sree Rama Rao. 1964 2 LLJ 150 = AIR 1963 SC 1723 = 1964 (3) SCR 25, in which the question was whether the High Court, under Article 226, could interfere with the findings recorded at the departmental enquiry. This decision was followed in Central Bank of India vs. Prakash Chand Jain, 1969 2 LLJ 377 (SC) = AIR 1969 SC 983 and Bharat Iron Works vs. Bhagubhai Balubhai Patel & Ors. 1976 Labour & Industrial Cases 4 (SC) = AIR 1976 SC 98 = 1976 (2) SCR 280 = (1976) 1 SCC 518. In Rajinder Kumar Kindra vs. Delhi Administration through Secretary (Labour) and Others. AIR 1984 SC 1805 = 1985 (1) SCR 866 = (1984) 4 SCC 635, it was laid down that where the findings of misconduct are based on no legal evidence and the conclusion is one to which no reasonable man could come, the findings can be rejected as perverse. It was also laid down that where a quasi-judicial tribunal records findings based on no legal evidence and the findings are his mere ipse dixit or based on conjectures and surmises, the enquiry suffers from the additional infirmity of non-application of mind and stands vitiated. Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of \"guilt\" is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse, But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be the conclusions would not be treated as perverse and the findings would not be interfered with. In the light of the above principles, let us scrutinise the case in hand. The charge framed against the appellant in the instant case is as under:- \"You, Constable Kuldeep Singh No.2138/SD. are hereby charged that while posted at P.P. Amar Colony on 22.2.1990. You kept illegally Rs.200/out of Rs. 1000/- given by the factory owner, Smt. Meena Mishra running her factory at A-25, Garhi Lajpat Nagar for the payment of her laborers, Shri Radhey Shyam S/O Shri Phool Vash. Shri Rapal Singh S/O Shri Brahma Nand and Shri Shiv Kumar S/O Shri Ganga Ram. All these three laborers had made a complaint that Smt. Meena Mishra had stopped their payment or Rs. 2200/- for three months. The above act your part amounts to grave misconduct and unbecoming of a police officers which renders you, constable Kuldeep Singh No. 2138/SD, liable for punishment u/s 21 of Delhi Police Act, 1978. Sd/- Shakti Singh SHAKTI SINGH Inspector, Enquiry Officer, DE Cell, Vigilance, Delhi.\" The list of witnesses who were proposed to be examined at the domestic enquiry, as set out in the charge-sheet, was:- List of witnesses 1. Sh. D.D. Sharma, Insp. He will move him the then S.H.O. Lajpat to present. Nagar, 2. Smt. Meena Mishra R/O She will depose A-25, Garhi, Lajpat Nagar, that she had Nagar, given Rs.1000/- to Ct. Kuldeep Singh on 22.2.1990 for payment to 3 laborers and Constable had kept Rs. 200/with him. 3. Sh. Rajpal Singh He will depose S/O Brahama Nand that on 22.2.90 R/O Village Ram he along with Nagar, P.S. Baroli Shiv Kumar and Distt. Etah (U.P.) Radhey Shyam had gone to factory A-25, Garhi with Ct. kuldeep Singh for settlement of payment and he kept Rs.200 with him. 4. Radhey Sham S/O Phool Vash R/o Distt. Etah Village Bulal Puri --do-- U.P. at present H.No. 74 Main Market Garhi Lajpat Nagar. SO/DE Cell\" The list of documents, indicated in the charge-sheet, was:- List of documents. ----------------- 1. Copy of report of SHO/Lajpat Nagar, dated 5.3.1990 against Constable Kuldeep Singh No.2138/SD. 2. Copy of Laborers Statement. SO/DE Cell.\" The charge against the appellant thus was that on 22.2.1990, three laborers namely, Radhey Shyam, Rajpal Singh and Shiv Kumar who were working in the factory of Smt. Meena Mishra at A-25, Garhi, Lajpat Nagar, and had not been paid their salary by the factory owner had approached the appellant who was posted at Police Post, Amar Colony, attached to P.S. Lajpat Nagar, New Delhi, for his help in the matter. The appellant along with the aforesaid laborers went to the factory owner who gave Rs. 1000/- to the appellant for payment to the three laborers but the appellant did not pay the whole of the amount to them and instead gave them only Rs. 800/-, keeping an amount of Rs. 200/- in his own pocket. In order to prove this charge, the Department examined Inspector D.D. Sharma, SHO, P.S. Lajpat Nagar; and Smt. Meena Mishra. Their statements have been reproduced in copious details in the findings submitted by the Enquiry Officer, a copy of which has been placed on the record. Smt. Meena Mishra stated that the three persons, namely, Rajpal Singh, Radhey Shyam and Shiv Kumar, were working in her factory, to whom she had made payment separately and individually. She stated. that she had paid Rs. 563/- to Rajpal; Rs.211/- to Shiv Kumar and another sum of Rs. 808/- jointly to Radhey Shyam and Rajpal. She stated that she had not paid Rs. 1000/- to Kuldeep Sing (appellant) on 22.2.1990, as she had asked the three laborers to come after a few days and it was then that the whole of the amount described above which was due from her was paid to them. Inspector D.D. Sharma, who was, at the relevant time. posted as S.H.O. P.S. Lajpat Nagar, New Delhi. stated that he had received a complaint from Radhey Shyam, Rajpal Singh and Shiv Kumar. They were summoned to the Police Post, Amar Colony where the contents of the complaint were verified from them and their statement was recorded. No other witness was examined on behalf of the Department, not even the complainants, Rajpal Singh and Radhey Shyam, though their names were mentioned in the charge-sheet for being examined as witnesses against the appellant. The appellant examined one of the complainants, namely, Shiv Kumar in defence who supported the appellant that Smt. Meena Mishra had not made any payment on 22.2.1990 but had called him and two other complainants, namely, Radhey Shyam and Rajpal Singh after few days and when they went again to her, she made the full payment. The appellant also examined constable Shoukat Ali who was posted, at the relevant time, at Police Post Amar Colony. He stated that Radhey Shyam, Shiv Kumar and Rajpal Singh had come to the Police Post to make a complaint against Smt. Meena Mishra that she had not paid them their salary. This constable directed them to meet the Emergency Officer, ASI Bhopal Singh who sent the appellant with them to Smt. Meena Mishra. The appellant came back and informed ASI Bhopal Singh that Smt. Meena Mishra had agreed to pay the amount due from her to these three persons after a few days. ASI Jagdish Prasad and ASI Bhopal Singh, who were also examined in defence, corroborated the above statement of constable Shoukat Ali. ASI Bhopal Singh further stated that the appellant was deputed by him to go to Smt. Meena Mishra with the complainants and the the appellant, on his return from the factory, told him that Smt. Meena Mishra had agreed to make payment to the three laborers a few days later. The witness, however, stated that all the three laborers had come to Police Post, Amar Colony of P.S. Lajpat Nagar on 22.2.1990 where their statement was recorded by ASI Jagdish Prasad on the dictation of SHO D.D. Sharma. This statement was placed on the record before the Enquiry Officer. This was the entire evidence produced at the domestic enquiry. What immediately strikes the mind is that Smt. Meena Mishra, who is alleged to have paid the amount of Rs. 1000/- to the appellant, stated in clear terms as a witness for the Department, that she had not made any payment to the appellant. This payment is not proved in any other manner as none of the three recipients of the above amount, who were the complainants, has been produced at the departmental enquiry, though two of them, namely, Radhey Shyam and Rajpal Singh were proposed to be examined. Non-production of the complainants is sought to be justified with reference to Rule 16(3) of the Delhi Police (F&A) Rules, 1980. Rule 18(3) is an under:- \"If the accused police officer does not admit the misconduct, the E.O. shall proceed to record evidence in support of the accusation as is available and necessary to support the charge. As far as possible the witnesses shall be examined direct and in the presence of the accused, who shall be given opportunity to take notes of their statements and corssexamine them. The E.O. is empowered, however, to bring on record the earlier statement of any witness whose presence cannot, in the opinion of such officer be procured without undue delay, inconvenience or expense necessary provided that it has been recorded and attested by a police officer superior in rank to the accused officer or by a Magistrate and is either signed by the person making it or has been recorded by such officer during an investigation or a judicial enquiry or trial. The statements and documents so brought on record in the departmental proceedings shall also be read out to the accused officer and shall be given an opportunity to take notes, Unsigned statements shall be brought on record only through recording the statements of the officer or Magistrate who had recorded the statement of the witness concerned. The accused shall be bound to answer any questions which the E.O. may deem fit to put to him with a view to elucidating the facts referred to in the statements or documents thus brought on record.\" This Rule, which lays down the procedure to be followed in the departmental enquiry, itself postulates examination of all the witnesses in the presence of the accused who is also to be given an opportunity to crossexamine them. In case, the presence of any witness cannot be procured without undue delay, inconvenience or expense, his previous statement could be brought on record subject to the condition that the previous statement was recorded and attested by a police officer superior in rank than the delinquent. If such statement was recorded by the Magistrate and attested by him then also it could be brought or record. The further requirement is that the statement either should have been signed by the person concerned, namely, the person who has made that statement, or it was recorded during an investigation or a judicial enquiry or trial. The Rule further provides that unsigned statement shall be brought on record only through the process of examining the Officer or the Magistrate who had earlier recorded the statement of the witness whose presence could not be procured. Rule 16(3) is almost akin to Sections 32 and 33 of the Evidence Act. Before the Rule can be invoked, the factors enumerated therein, namely, that the presence of the witness cannot be procured without undue delay, inconvenience or expense, have to be found to be existing as they constitute the condition-precedent\" for the exercise of jurisdiction for this purpose. In the absence of these factors, the jurisdiction under Rule 16(3) cannot be exercised. Rajpal Singh and Radhey Shyam, who were the original complainants along with Shiv Kumar, were not examined and the Enquiry Officer, regarding their absence, has stated in his report as under:- \"The two prosecution witnessess Rajpal Singh and Radhya Shyam have not attended to proceeding. They have not been found residing in their vill. now and it had come to notice that the defaulter has managed their disappearance and has settled them some where in Devli Khanpur and also has arranged their employment but the addresses of those PWs are not known. Such is the act of the defaulter to create his defence and is an attempt to hide his misconduct. Though their complaint Ex. PW-1/A has been exhibited and has been taken on file to ascertain the facts and for natural justice. This will show that the blame for the non-availability of these two witnesses has been laid on the appellant who was already under suspension and it is not understandable as to how and on what basis or on what material, the Enquiry Officer came to the conclusion that the appellant was responsible for their disappearance or had procured employment for them in Devli Khanpur. If it was known to the Enquiry Officer that they were available in Devli Khanpur, was any attempt made to contact them at Devli Khanpur or to bring them to the enquiry proceedings from that place, is not indicated by the Enquiry Officer in his report making it obvious that the factors necessary for the exercise of jurisdiction under Rule 16(3) were not present and it was not open to the Enquiry Officer to have taken recourse to this Rule to bring on record the previous statement of the complainants which allegedly was recorded by Inspector D.D. Sharma. Moreover, the so-called previous statement itself of the complainants appears to be a highly suspicious document for the reason that S.H.O., D.D. Sharma had stated before the Enquiry Officer that he had received a complaint of Radhey Shyam, Rajpal Sing and Shiv Kumar whereupon all the three persons were summoned by him and after verifying the facts from those complainants had recorded their statement which he had dictated to ASI Jagdish Prasad. There were, therefore, two documents: (i) The original complaint made by the aforesaid three persons: (ii) The statement of these persons, recorded by ASI Jagdish Prasad, at the dictation of S.H.O., D.D. Sharma, after verifying the facts, set out in the complaint, from these persons. complaint, from these persons. (1) The original complaint was not placed on the record and it was the statement, recorded by S.H.O., D.D. Sharma, which was produced before the Enquiry Officer. The absence of original complaint, therefore, indicates that there was, in fact, no complaint in existence which further supports the statement of Department's own witness Smt. Meena Mishra that no payment was made by her on 22.02.1990. Apart from the above, Rule 16(3) has to be considered in the light of the provisions contained in Article 311(2) of the Constitution to find out whether it purports to provide reasonable opportunity of hearing to the delinquent. Reasonable opportunity contemplated by Article 311(2) means \"Hearing\" in accordance with the principles of natural justice under which one of the basic requirements is that all the witnesses in the departmental enquiry shall be examined in the presence of the delinquent who shall be given an opportunity to cross-examine them. Where a statement previously made by a witness, either during the course of preliminary enquiry or investigation, is proposed to be brought on record in the departmental proceedings, the law as laid down by this Court is that a copy of that statement should first be supplied to the delinquent, who should thereafter be given an opportunity to cross-examine that witness. In State of Mysore vs. Shiv Basappa 1963(2) SCR 943 = AIR 1963 SC 375, the witness was not examined in the presence of the delinquent so far as his examination-in-chief was concerned and it was his previous statement recorded at an earlier stage which was brought on record. That statement was put to the witness who acknowledged having made that statement. The witness was thereafter offered for cross-examination and it was held that although the statement (examination-in-chief) was not recorded in the presence of the delinquent, since the witness had been offered for cross-examination after he acknowledged having made the previous statement, the rules of natural justice were sufficiently complied with. In Kasoram Cotton Mills Ltd. vs. Gangadhar 1964(2) SCR 809 = AIR 1964 SC 708 AND State of U.P. vs. Om Prakash Gupta, AIR 1970 SC 679, the above principles were reiterated and it was laid down that if a previous statement of the witness was intended to be brought on record, it could be done provided the witness was offered for cross-examination by the delinquent. Having regard to the law as set out above, and also having regard to the fact that the factors set out in Rule 16(3) of the Delhi Police (F&A) Rules, 1980, did not exist with the result that Rule 16(3) itself could not be invoked, we are of the opinion that the Enquiry Officer was not right in bringing on record the so-called previous statement of witnesses Radhey Shyam and Rajpal Singh. It will be noticed that there were three complainants but only two, namely, Radhey Shyam and Rajpal Singh were proposed to be examined. Why was not the third complainant, Shiv Kumar, proposed to be examined? The reason becomes obvious from the fact that when he was examined as a Defence witness, he fully supported the appellant by stating that no payment was made by Smt. Meena Mishra on that date. But he was held by the Enquiry Officer to be an impostor on the ground that he had not proved himself to be actual Shiv Kumar. The Enquiry Officer has observed as under:- \"DW 1, Sh. Shiv Kumar is a prepared witness and has not proved himself to be actual Shiv Kumar. This DW 1 has denied that he had visited the police station and had never met with SHO. Moreover he has denied to have signed EX PW-A/A. He had not made any complaint to the SHO. His version has been contradicted by ASI Jagdish Prasad, DW-4 the writer of this complaint Ex PW-1/A. Both these defaulter himself. So the statement of DW-1, Shiv Kumar has not been relied upon because he is not actual Shiv Kumar who is a complainant in this case and is a false person who has been produce by the defaulter.\" The reasons why he has been held to be an impostor or a false person have not been indicated. The finding in this regard is wholly arbitrary and perverse. The findings recorded by the Enquiry Officer, have also been upheld by the Deputy Commissioner of Police, South District, New Delhi who had passed the order on 3rd of May, 1991 by which the appellant was dismissed from service. The Addl. Commissioner of Police, before whom the appeal was filed by the appellant, also agreed with the findings recorded by the Enquiry Officer as also the Deputy Commissioner and dismissed the appeal on 22.07.1991. From the findings recorded separately by the Deputy Commissioner of Police, it would appear that there is a voucher indicating payment of Rs. 1000/- to Rajpal Singh, one of the labourers, on 8th of February, 1990. This document was not mentioned in the chargesheet in which only two documents were proposed to be relied upon against the appellant, namely, copy of the report of S.H.O., Lajpat Nagar dated 5th of March, 1990 against the appellant and the copy of the labourers' statement. This document has, therefore, to be excluded from consideration as it could not have been relied upon or even referred to by the Dy. Commissioner of Police. Moreover, according to the charge framed against the appellant, payment was made on 22.2.90 and not on 08.02.90 as indicated in the voucher and, therefore, voucher, for this reason also, has to be excluded. To sum up, the charge against the appellant consisted of two components, namely : (a) On 22.2.90 Smt. Meena Mishra paid Rs. 1000/- to the appellant for being paid to the three labourers. (b) Appellant paid Rs. 800/- to labourers and kept Rs. 200/- with himself. Smt. Meena Mishra, appearing as a witness for the Department, denied having made any payment to the appellant on that day. The labourers to whom the payment is said to have been made have not been produced at the domestic enquiry. Their so-called previous statement could not have been brought on record under Rule 16(3). As such, there was absolutely no evidence in support of the charge framed against the appellant and the entire findings recorded by the Enquiry Officer are vitiated by reason of the fact that they are not supported by any evidence on record and are wholly perverse. The Enquiry Officer did not sit with an open mind to hold an impartial domestic enquiry which is an essential component of the principles of natural justice as also that of \"Reasonable Opportunity\", contemplated by Article 311(2) of the Constitution. The \"Bias\" in favour of the Department had so badly affected the Enquiry Officer's whole faculty of reasoning that even non-production of the complainants was ascribed to the appellant which squarely was the fault of the Department. Once the Department knew that the labourers were employed somewhere in Devli Khanpur, their presence could have been procured and they could have been produced before the Enquiry Officer to prove the charge framed against the appellant. He has acted so arbitrarily in the matter and has found the appellant guilty in such a coarse manner that it becomes apparent that he was merely carrying out the command from some superior officer who perhaps directed \"fix him up\". For the reasons stated above, the appeals are allowed. The judgment and order dated 28th February, 1997, passed by the Central Administrative Tribunal, is set aside. The order dated 3rd of May, 1991, passed by Deputy Commissioner of Police by which the appellant was dismissed from service as also the order passed in appeal by Addl. Commissioner of Police are quashed and the respondents are directed to reinstate the appellant with all consequential benefits including all the arrears of pay up-to-date which shall be paid within three months from today. There will, however, be no order as to costs.",
        "19436407": "IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION ORIGINAL SIDE BEFORE THE HON'BLE JUSTICE BISWANATH SOMADDER AND THE HON'BLE JUSTICE MOUSHUMI BHATTACHARYA A.P.O. NO. 3 OF 2017 With C.S. NO. 369 OF 2014 MERLIN PROJECTS LIMITED VERSUS PAWAN KUMAR AGARWAL With A.P.D. NO. 6 OF 2017 With C.S. NO. 369 OF 2014 MERLIN PROJECTS LIMITED VERSUS PAWAN KUMAR AGARWAL For the Appellant: Mr Abhrajit Mitra Sr. Adv., Mr. Aniruddha Roy, Adv., Ms. Shankersan Sarkar, Adv., For the Respondent: Mr. Utpal Bose, Sr. Adv., Mr. Pushan Kar, Adv., Mr. Aniruddha Sinha, Adv., Mr. Sagnik Mazumdar, Adv., Mr. Rishav Karnani, Adv. Heard on: 07.11.17, 11.01.18, 18.01.18, 25.01.18, 06.02.18, 08.02.18, 13.02.18, 15.02.18, 22.06.18, 29.06.18, 20.07.18, 03.08.18, 17.08.18, 24.08.18, 16.11.18, 30.11.18, 11.1.19, 01.02.19, 01.3.19, 29.03.19, 14.06.19, 21.6.19, 05.07.19, 19.07.19, 02.08.19, 16.8.19 and 30.08.19 Judgment on: 01.10.2019. BISWANATH SOMADDER, J. :- 1. The two appeals, being A.P.O. No. 3 of 2017 and A.P.D. No. 6 of 2017, arise out of a judgment and order passed by a learned Single Judge on July 20, 2016, wherein an application, being G.A. No. 3675 of 2016, to amend a plaint in a civil suit, being C.S. No. 369 of 2014, was rejected and an application,being G.A. No. 1118 of 2015, for the dismissal of the said suit, was upheld under Order VII, Rule 11 of the Code of Civil Procedure, 1908. 2. The facts of the case, for the purposes of deciding the two appeals, are as follows:- i. The appellant, i.e. Merlin Projects Limited (hereinafter \"Merlin\") entered into negotiations with the co-owners of a plot of land, under Municipal holding No. 86/90, B.L. Shah Road, P.S. Behala, Kolkata-700 053(hereinafter \"the said premises\"), for the purposes of developing/purchasing the said premises. ii. Pursuant to such negotiations, Merlin entered into a Memorandum of Understanding (hereinafter \"M.O.U.\") on August 24, 2002with Pawan Kumar Agarwal and Giniya Devi Agarwal, being the defendants in the suit C.S. No. 369 of 2014, who jointly had a 1/12thundivided share in the ownership of the said premises. In this M.O.U., the parties incorporated the broad terms of their arrangement for developing the said premises with the expectation of a development agreement later on. Merlin also transferred Rs.11,000/- to Pawan Kumar Agarwal and Giniya Devi Agarwal, under the said M.O.U., as an interest free security deposit. iii. The development agreement contemplated under the said M.O.U. with Pawan Kumar Agarwal and Giniya Devi Agarwal could not be executed, and Rs.11,000/- paid as a security deposit by Merlin was refunded to the latter by a payment instrument dated December 8, 2008, with the said M.O.U. being cancelled by an undated letter before the return of the security amount. However, Merlin claimed to have not encashed the said Rs.11,000/- and stated that it continued to have possession over the said premises. iv. According to Merlin, there were negotiations thereafter.Pawan Kumar and Giniya Devi agreed to not cancel the said M.O.U. whilst giving a go-by to the cancellation, inter alia, by not attempting to remove Merlin's men from the said premises. When Merlin allegedly found that Pawan Kumar and Giniya Devi along with the other co-owners of the said premises were trying to deal with the said premises or dispose of their interest in it - in alleged contradiction of their purportedly extended M.O.U. - it filed a suit on July 17, 2014, i.e. C.S. No. 369 of 2014, in this Court,wherein it was prayed for:- (a) A decree for specific performance against Pawan Kumar and Giniya Devi, jointly and severally, of the terms and acts agreed under the said M.O.U. of August 24, 2002. (b) Alternatively, a decree for declaration that the said M.O.U. of August 24, 2002 was valid and subsisting and a decree for specific performance thereof. (c) A decree for permanent injunction restraining Pawan Kumar and Giniya Devi, and their men, servants and agents from dealing with, disposing of, encumbering, alienating or creating any third party interest with regard to their shares. (d) Temporary injunction. (e) Receiver/Commissioner (f) Attachment/Attachment before judgment. (g) Costs (h) Such further or other relief or reliefs. v. The defendant no. 2 in the instituted suit, i.e. Pawan Kumar Agarwal filed an application on April 2, 2015, being G.A. No. 1118 of 2015, praying for the following reliefs:- (a) That the filed plaint be rejected and/or taken off the file and the suit being C.S. No. 369 of 2014 be dismissed. (b) In the alternative, the leave granted under clause 12 of the Letters Patent be revoked. (c) Stay of all further proceedings in the suit named during the pendency of the application. (d) Ad interim order in terms of prayers above. (e) Costs of and incidental to this application be borne by Merlin. (f) The passing of such other or further order or orders as the Hon'ble Court may deem fit and proper. This application was based, inter alia, on the grounds thatthe suit was barred by the laws of limitation: that the suit did not declare a right to sue or a cause of action; that the suit did not involve a concluded agreement that was capable of enforcement since the said M.O.U. had been terminated in December, 2008 with the security being repaid; that the defendant no. 1, i.e. Giniya Devi had passed away on December 21, 2013; and that the suit lay outside the Calcutta High Court's Ordinary Original Civil Jurisdiction. vi. In response to this application, Merlin filed an affidavit-in-opposition that was affirmed on November 19, 2015. In this affidavit, Merlin denied all allegations and contentions made by the defendant no. 2 in the application, being G.A. No. 1118 of 2015. The affidavit stated that the demise of the defendant no. 1, i.e. Giniya Devi Agarwal on December 21, 2013 was not brought to the knowledge of the plaintiff by the defendant no. 2, i.e. Pawan Kumar Agarwal. Merlin claimed that it had requested Pawan Kumar Agarwal for disclosure of the names of the heirs of Giniya Devi by its advocate's letter of August 24, 2015, to which it had received no reply. Merlin also claimed in the affidavit that upon further investigation, it had found the certified copy of an agreement dated June 5, 2014, between all the branches of the Agarwalla family, who owned the said premises, including the defendants in C.S. No. 369 of 2014, on one hand and one veteran developer, Jagdamba Commercial Pvt.Ltd.(in short \"Jagdamba\"), on the other hand. It was alleged that there were negotiations between the defendants and Jagdamba since September, 2009 with unregistered agreements therafter, while simultaneously Merlin had been represented with the willingness of proceeding with the said M.O.U. by the defendants and other owners of the said premises. Jagdamba - as alleged by Merlin - was thus supposed to be a necessary party to be added to the suit, having purportedly acted in collusion and conspiracy with all the members of the Agarwalla family despite being well aware of the plaintiff's agreements in respect of the said premises including the said M.O.U. vii. Apart from trying to make out a case for addition of Jagdamba as a party to the suit, Merlin sought for the other co-owners of the said property, i.e., other members of the Agarwalla family to be added as parties to the suit. Merlin also sought to bring some further facts to light by the aforesaid affidavit in order to prove the subsistence and continuance of the said M.O.U. It alleged the existence of a jural relationship by furnishing electronic mail excerpts between Merlin and the defendants' advocate, Mr. NirupamSaraogi, dated December 30, 2008 and January 2, 2009, which supposedly led to the finalisation of the development agreement evolving from clause 3 of the said M.O.U. that was approved by the senior-most member of the Agarwalla family (the owners of the said premises), one Narayan Agarwalla. It was also alleged that the conclusion of the development agreement was reflected in the payment of legal fees through cheques, being no. 582707 on December 30, 2008 and no. B37614 on May 20, 2008, that were made in favour of Mr. Saraogi, the advocate involved in the preparation of the purported development agreement. In addition Merlin claimed possession of portions of the premises, namely, godowns 1, 2 and 3. viii. In response to Merlin's affidavit, the defendant no. 2, i.e.,Pawan Kumar Agarwal, filed an affidavit-in-reply affirmed on December 15, 2015 in respect of the said application, being G.A. No. 1118 of 2015. This affidavit - apart from denying all contentions in the plaintiff's affidavit - stated that there had been gross suppression of material facts by the plaintiff, i.e. Merlin; the plaintiff was not in possession of the suit premises or any part thereof; the suit was also barred by section 34 of the Specific Relief Act, 1963, along with the laws of limitation; most pertinently, the plaintiff in relation to the suit property on or about November 10, 2009 had filed a suit for temporary injunction before the Court of the learned 5th Civil Judge (Junior Division) at Alipore, being Title Suit No. 3302 of 2009 (Merlin Projects Ltd. v. Sri Amar Chand Agarwal &Ors.), wherein Merlin had claimed their alleged right over the suit property by virtue of the said M.O.U.; from a meaningful reading of the pleadings of Title Suit No. 3302 of 2009 and C.S. No. 369 of 2014, it would transpire that both these case were more or less the same, thus being barred by section 10 of the Code of the Civil Procedure, 1908 as well as by Order VII, Rule 11 of the said Code. ix. The plaintiff, in the instituted suit C.S. No. 369 of 2014, i.e. Merlin filed an amendment application on November 19, 2015, being G.A. No. 3675 of 2015. This application, at the outset, sought for the addition of parties necessary for complete and effective adjudication of all disputes arising out of the said M.O.U. dated January 24, 2002due to the death of defendant no. 1 as on December 21, 2013 and the subsequent agreement between Jagdamba and the Agarwalla family dated June 5, 2014. The parties sought to be impleaded were as follows: Amar Chand Agarwal, Kailash Chand Agarwal, Om Prakash Agarwala, all sons of late Shrinarain Agarwal, Raj Kumar Agarwal, son of Novranglal Agarwal, Sitaram Agarwal, Ramavtar Agarwal, Kishan Lal Agarwal, Prahlad Agarwal, all sons of late Ganpat Lal Agarwal, Phool Devi Agarwal, Binod Kumar Agarwal, Pramod Kumar Agarwal, Ashok Kumar Agarwal, Sarita Parasrampuria, Sabita Agarwal and Jagdamba Commercial Pvt. Ltd. Secondly, the amendment application sought to reassert the claims of fact that the plaintiff had made in the affidavit-in-opposition affirmed on November 19, 2015 (see (vi) and (vii) above). In addition, the application asserted that the plaintiff sought for a perpetual injunction against the creation of third party interests for the protection of its possession of godowns no. 1, 2 and 3 in the said premises. Thereafter, by a supplementary affidavit affirmed on May 2, 2016,the plaintiff also sought to correct some grammatical and clerical errors in the proposed application for amendment of the original plaint. x. The defendant no. 2, i.e., Pawan Kumar Agarwal filed an affidavit-in- opposition affirmed on May 16, 2016 to the aforesaid application, being G.A. No. 3675 of 2015, denying the allegations levelled therein and stating, inter alia, that : (i) the application for amendment filed by the plaintiff could not stand for the purpose of recording the death of the very person against whom the suit had been filed and since the death was prior to the institution of the suit, the application should fail on that ground alone; (ii) the amendment sought would not only change the nature and character of the suit but would also introduce a complete new cause of action; (iii) the paragraphs sought to be incorporated in the suit by the amendment were beyond the scope of the said suit and cause of action purported therein; (iv) it was evident from a meaningful reading of the plaint that Jagdamba did not appear to be either a proper or necessary party, as any alleged agreement between Jagdamba and the co-owners of the suit property did not affect the issues of the present suit; (v) the inclusion of all other parties in view of the purported development agreement made pursuant to the said M.O.U. also had no ground, as there existed no executed development agreement but merely a draft unsigned agreement, and the presence of all Agarwallas was not necessary for adjudication of disputes arising out of the said M.O.U. dated August 24, 2002. xi. The learned Single Judge, after perusal of the facts and pleadings on record, delivered the impugned judgment on July 20, 2016. Relevant parts of the judgment are reproduced hereinbelow:- \".....The substance of the suit as originally filed was that the plaintiff had entered into a memorandum of understanding with the original defendants (the first of whom was dead before the suit was filed; but, thankfully, the second was the only heir of the deceased first defendant) in the year 2002 which contemplated that a development agreement would be entered into by the original defendants and the other co-owners of a Tollygunge property. The original defendants held 8.33% undivided share in the entire property. The memorandum of understanding, a copy whereof is incorporated as a part of the original plaint, envisaged a development agreement to be concluded within a year of the execution of such memorandum. The development agreement in respect of the entirety of the premises was never entered into or executed. Though the original defendants were not required to expressly terminate the memorandum of understanding of 2002 as it was only an understanding to enter into a development agreement, they effected a formal termination in December, 2008 by returning the token sum of Rs.11, 000/- which had been received from the plaintiff. The original plaint was founded on the plaintiff not encashing the instrument by which the sum of Rs. 11, 000/- was returned by the original defendants. It was sought to be asserted that since the original memorandum of understanding of 2002 still survived, the plaintiff was entitled to specific performance of the development agreement envisaged therein. In other words, an understanding to enter into a development agreement of 12 years prior to the institution of the suit was cited for bringing a suit to claim title to a valuable property. By the amendment which has been proposed, the plaintiff relies on a draft development agreement, which is unexecuted and unsigned, apparently prepared by a lawyer who may have been engaged by the plaintiff to take care of the partition in the Agarwala family.\" \".....It is also evident from the proposed amended plaint that all the co-owners of the land in question have entered into a development agreement with the proposed sixteenth defendant [i.e. Jagdamba Commercial Pvt. Ltd.] and such agreement has been registered.\" \".......The original defendants, or the surviving original defendant, has applied for rejection of the plaint. The rejection is on the ground that the claim is hopelessly barred by limitation, even if the proposed amendment is taken into account; and, there does not appear to be any cause of action for the suit being instituted or the same being continued with. The first defendant says that in view of Article 54 in the Schedule to the Limitation Act, 1963, this suit could not have been instituted against the original defendants in 2014 nor could it had been instituted against the proposed added defendants at the time that the amendment application was filed in 2015. The surviving original defendant has relied on the judgments of the Supreme Court reported at (1997) 2 SCC 611 and AIR 2011 SC 41. In either case, the Court recognised that the claim for specific performance was carried after the expiry of the period of limitation. Paragraph 13 of the plaint as it now stands claims that the memorandum to enter into a development agreement was entered into in August, 2002. The subsequent averments speak of the plaintiff paying the token amount of Rs.11,000/- to the original defendants and the plaintiff obtaining possession of the part of the premises in the possession of certain branches of the Agarwala family almost simultaneously. The impression given in the original plaint is that the plaintiff is in possession of the premises, though it is evident from the application to amend the plaint and the proposed amendments that the plaintiff is not in possession of the entirety of the premises but may only be in possession of a couple of godowns thereat. It is not even clear from the plaint or its proposed amended version as to what is the extent of the area covered by the suit property.\" \".....In addition, the last sentence of paragraph 21I of the proposed amended plaint has been placed with much vigour to assert that the cancellation of the agreement of 2002 had been given a go-by. It is also mentioned elsewhere in the plaint that the fact that the original or the proposed added defendants had given a go-by to the cancellation of the agreement in 2002 is evident from the fact that they had not attempted to dispossess the plaintiff from the couple of godowns at the property that the plaintiff claims to be in possession of. It is elementary that a suit for specific performance of a contract has to be filed within three years of the date fixed for the performance; or if no such date is fixed, within three years of the time when the plaintiff has notice that the performance is refused. As far as the original defendants are concerned, it is evident that the time fixed for the performance of whatever was required to be performed by the 6 August, 2002 agreement expired after a year of the execution of such agreement. In any event, such agreement was specifically terminated by what is described in the plaint to be an undated letter which was made over by the original defendants to the plaintiff along with an instrument for payment dated December 8, 2008 for the refund of the sum of Rs.11,000/-. There is no averment in the plaint of anything done by the original defendants thereafter for the plaintiff to obtain the benefit of any provision of the Act of 1963 for the clock of limitation to stop running and the cause of action qua the agreement of 2002 to be alive to be pursued at the time of the institution of the suit in 2014. Merely because the plaintiff did not encash the instrument for payment or the original defendants or any other took no step to evict the plaintiff from a part of the premises allegedly under the plaintiff's possession would be of no relevance in counting the period of limitation. By the proposed amendment, the plaintiff claims a veritable development agreement having been entered into between the plaintiff and original defendants and all the owners of the land in question. However, there was never any development agreement entered into between the plaintiff and the original defendants or between the plaintiff and the other owners. The unsigned and undated document of 2009 which is cited as the development agreement cannot be seen to be a concluded contract and, specific performance thereof would not be permissible nor would the plaintiff be entitled thereto.\" \".....If the proposed amendments to the plaint are taken into consideration and the proposed amended plaint is seen to be one filed on the date of the institution of the suit, even then the plaintiff would have no cause of action against the Agarwala defendants and, as a consequence, against the proposed sixteenth defendant. At the highest, the nebulous agreement between the plaintiff and the proposed added defendants was entered into in or about the year 2009. The suit was instituted in 2014 and even if the proposed amendment dates back to the date of the institution of the suit, the claim on such count would be barred by limitation. Since the suit as originally instituted was after the expiration of the period prescribed by the laws of limitation, it was incumbent on the plaintiff to plead the grounds upon which exemption from such law was claimed. Again, since the proposed amendment would, at the highest, date back to the date of institution of the suit, which date was after the expiration of the period prescribed by the laws of limitation in respect of the additional reliefs claimed, the plaintiff ought to have indicated the grounds to explain the delay or claim exemption in accordance with law therefor. The original plaint and the proposed amended plaint are singularly lacking in such aspect. Indeed, it has been submitted on behalf of the plaintiff that the proposed amendment seeks merely to amplify what is already stated in the original plaint; though it is evident from the proposed amended plaint that an altogether different claim is sought to be made by the proposed amendment.\" \".....If the plaintiff has no cause of action or no right to pursue the cause of action against the Agarwala defendants, the plaintiff has no right to chase the proposed sixteenth defendant, at least not in this Court or via the present suit. Since the suit fails primarily on the ground of limitation and the plaint disclosing no cause of action, the aspect of this suit being a suit for land has not been gone into; though plaintiff may have failed even on such count.\" \"......The plaint relating to CS No. 369 of 2014 is dismissed on being ex-facie barred by limitation and not disclosing any cause of action. As a consequence, GA No. 1118 of 2015 succeeded and GA No. 3675 of 2015 failed.\" 3. Before us two questions of law arise:- i. Whether the learned Single Judge was right in applying the provisions contained under Order VII, Rule 11 of the Code and deciding that the limitation period had expired, without allowing the application for amendment of the plaint or making determination of facts in relation to the amended plaint? ii. Whether the learned Single Judge was right in admitting the application for rejection of the plaint and in deciding that no cause of action was disclosed by the plaintiff in the present case? 4. The submission advanced on behalf of the appellant-Merlin was very attractive, initially. Learned senior counsel had submitted that the learned Single Judge ought to have allowed the plaint to be amended and ought to have proceeded to decide the limitation question, only after making certain determination of facts; such as, whether the appellant had certain godowns in the said premises, as stated in the amended plaint and/or whether the purported development agreement existed. In this context, the learned senior counsel placed reliance on two decisions of the Hon'ble Supreme Court in C. Natarajan v. Ashim Bai & Anr., reported in A.I.R. 2008 S.C. 363, (paragraphs 10-13, 18) and Nandkishore Lalbhai Mehta v. New Era Fabrics Pvt. Ltd. reported in (2015) 9 S.C.C. 755, (paragraphs 8, 9, 35-37). 5. We notice that the Hon'ble Supreme Court at paragraph 10 of Natarajan (supra) had followed its earlier decision in Popat and Kotecha Property v. State Bank of India Staff Association, reported in (2005) 7 S.C.C. 510. Popat (supra), in turn, refers to and relies upon Sopan Sukhdeo Sable & Ors. v. Assistant Charity Commissioner & Ors., reported in (2004) 3 S.C.C. 137 which lays down the general principles for examining a plaint and its maintainability under provisions of Order VII Rule 11. These principles are reproduced hereinbelow: \"12. The trial court must remember that if on a meaningful and not formal reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise the power under Order 7 Rule 11 of the Code taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, it has to be nipped in the bud at the first hearing by examining the party searchingly under Order 10 of the Code. (See T. Arivandandam v. T.V. Satyapal [(1977) 4 SCC 467] .) 13. It is trite law that not any particular plea has to be considered, and the whole plaint has to be read. As was observed by this Court in Roop Lal Sathi v. Nachhattar Singh Gill [(1982) 3 SCC 487] only a part of the plaint cannot be rejected and if no cause of action is disclosed, the plaint as a whole must be rejected. 14. In Raptakos Brett & Co. Ltd. v. Ganesh Property [(1998) 7 SCC 184] it was observed that the averments in the plaint as a whole have to be seen to find out whether clause (d) of Rule 11 of Order 7 was applicable. 15. There cannot be any compartmentalisation, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction or words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair-splitting technicalities.\" 6. In relation to the question of limitation barring a suit under Order VII, Rule 11 of the C.P.C, 1908, the general principles of law laid down in Sopan (supra), were taken into consideration both in Popat (supra) and Natarajan (supra). In Natarajan, the cause of action arose in 1994, when there was alleged trespass to the plaintiff's property, while the suit therein was filed in 2001. The suit sought for the reliefs of declaration of plaintiff's title to the suit property and consequential injunction restraining the defendants from interfering with plaintiff's possession. In the alternative, recovery of vacant possession. The trial judge dismissed an application for rejecting the plaint on the ground of limitation, while the High Court reversed the trial court's ruling by stating that the three year limit had expired for the main relief sought for, i.e. declaration of title. The Supreme Court, while allowing the appeal observed as follows in paragraph 19: \"We have noticed hereinbefore that the defendant, inter alia, on the plea of identification of the suit land vis-a-vis the deeds of sale, under which the plaintiff has claimed his title, claimed possession. The defendant did not accept that the plaintiff was in possession. An issue in this behalf is, therefore, required to be framed and the said question is, therefore, required to be gone into. Limitation would not commence unless there has been a clear and unequivocal threat to the right claimed by the plaintiff. In a situation of this nature, in our opinion, the application under Order VII Rule 11(d) was not maintainable. The contentions raised by the learned counsel for the respondent may have to be gone into at a proper stage. Lest it may prejudice the contention of one party or the other at the trial, we resist from making any observations at this stage.\" (e.a.) 7. The ratio of Natarajan (supra), which follows the general principles laid down in Sopan (supra) implies that the rejection of a plaint on the ground of limitation under the provisions of Order VII, Rule 11 may require a determination of fact requiring evidence to be adduced - only in certain cases - so as to allow the Court to determine when the limitation period begins. In the instant case, however, the original plaint never asserted the existence of the development agreement or the possession of certain godowns in the said premises. Rather, an entirely new case was sought to be made out in the amendment application. As such, the learned Single Judge was not required to conduct a fact finding exercise in order to decide on the question of limitation. 8. Going into such a fact-finding enquiry in order to arrive at such a conclusion would offend the very basic principles governing the scope of Order VII, Rule 11(a) of the Code of Civil Procedure, 1908. It would mean allowing the plaintiff to introduce a new case by way of an amendment to the plaint that would change the very cause of action of the suit from an alleged violation of an M.O.U. to an alleged violation of a purported development agreement made pursuant to that said M.O.U., as rightly held by the learned Single Judge. In other words, our present case is quite distinguishable from Natarajan (supra). That case dealt with a fact situation where the Court had to determine whether the plaintiff was actually in possession or not since the factum of such possession was being disputed by the defendant, as stated in paragraph 9 of Natarajan (supra). The situation here is completely different. Acceptance of the amended plaint and not rejecting the original plaint on the ground of limitation is to allow a suit to metamorphose into a new cause of action, which clearly circumvents the laws of limitation that bars the suit and requires rejection of the plaint. 9. So far as Nandkishore (supra) is concerned, the appellant therein had waived the stipulation/condition of obtaining the consent of the labour, but inspite of the efforts, the agreement never materialised. The question of the suit being barred by limitation never arose and therefore the applicability of Order VII, Rule 11(d) was not even an issue before the Court. 10. This brings us to the second issue. On facts we notice that the M.O.U. had been cancelled by the defendants. The cause for seeking an action, inter alia, for specific enforcement of the M.O.U., therefore, does not exist since the M.O.U itself does not exist and/or subsist. In a recent pronouncement of the law by the Hon'ble Supreme Court in Colonel Shrawan Kumar Jaipuriyar @ Sarwan Kumar Jaipuriyar v. Krishna Nandan Singh &Anr., on September 2, 2019, in Civil Appeal No. 6760 of 2019, it was held as follows in paragraph 10: \"10. This Court in Church of Christ Charitable Trust and Educational Society Represented by its Chairman v. Ponniamman Educational Society Represented by its Chairman/Managing Trustee [reported at (2012) 8 SCC 706] has referred to the earlier judgment of this Court in A.B.C. Laminart Pvt. Ltd. and Another v. A.P. Agencies, Salem [reported at (1989) 2 SCC 163] to explain that the cause of action means every fact which, if traversed would be necessary for the plaintiff to prove in order to seek a decree and relief against the defendant. Cause of action requires infringement of the right or breach of an obligation and comprises of all material facts on which the right and claim for breach is founded, that is, some act done by the defendant to infringe and violate the right or breach an obligation. In T. Arivanandam v. T.V. Satypal and Another [reported at (1977) 4 S.C.C. 467] this Court has held that if the plaint is manifestly vexatious, meritless and groundless, in the sense that it does not disclose a clear right to sue, it would be right and proper to exercise power under Order VII Rule 11 of the Code of Civil Procedure, 1908 ('Code', for short). A mere contemplation or possibility that a right may be infringed without any legitimate basis for that right, would not be sufficient to hold that the plaint discloses a cause of action.\" 11. Following the ratio as discussed above, it can, therefore, be held that in the facts and circumstances of the instant case, the same is squarely applicable as the plaintiff has been unable to disclose a clear right to sue and a mere contemplation or possibility that a right may be infringed without any basis for that right - but solely depending upon the amendment application being allowed - would not be sufficient to hold that the plaint discloses a cause of action. Thus, the second issue is answered in the affirmative. 12. The learned Single Judge's decision, therefore, requires no interference and consequentially, both appeals are liable to be dismissed and stand accordingly dismissed. No order as to costs. Urgent photostat certified copy of this judgment and order, if applied for, be supplied to the parties on a priority basis. (MOUSUMI BHATTACHARYA, J.) (BISWANATH SOMADDER, J.) Later After the judgment has been pronounced in Court, learned advocate representing the appellant prays for stay of operation of the judgment which is considered and refused. (MOUSUMI BHATTACHARYA, J.) (BISWANATH SOMADDER, J.)",
        "1348961": "PETITIONER: DELHI CLOTH & GENERAL MILLS LTD. Vs. RESPONDENT: UNION OF INDIA DATE OF JUDGMENT08/10/1987 BENCH: SHETTY, K.J. (J) BENCH: SHETTY, K.J. (J) MUKHARJI, SABYASACHI (J) CITATION: 1987 AIR 2414 1988 SCR (1) 383 1988 SCC (1) 86 JT 1987 (4) 35 1987 SCALE (2)715 CITATOR INFO : R 1988 SC 354 (11) RF 1992 SC1075 (3) RF 1992 SC2169 (28) ACT: Refusal of permission by the Railway Board to charge concessional station to station freight rate for the carriage of Naptha for a fertilizer factory complaint under section 41(1)(a) and (b) of the Railways Act, 1980, against HEADNOTE: The appellant, a company, set up a fertilizer factory at Kota in Rajasthan. The factory manufactures urea for which the main raw material is Naptha, which has to be transported from the Koyali Refinery of the Indian oil Corporation. Before the actual setting up of the factory, the appellant requested the Railway Board by letter for a concessional frieght rate for the carriage of Naptha to the factory. The Railway Board by its letter EX 5 dated November 5, 1966, quoted station to station rate equal to 85-B (special) as against the rate equivalent to classification 62.5-B requested for by the appellant, and also stated that as the special rate was being quoted ahead of the actual setting up of the factory, the frieght rate would be reviewed when the traffic actually began to move. When the factory was almost ready for operation, the appellant again requested the Railway Board by letter for charging the rate under classification 62-5-B instead of 85- B (special) quoted by it. The Railway Board refused to oblige. The appellant wrote another letter to the Board, requesting it to permit charging the rate equivalent to 85-B (special) pending its final decision, as the movement of naptha was to commence from June/July, 1968. The Railway Board refused to grant that request also, saying that it could reconsider the question if on the basis of the facts and figures of the cost of production vis-a-vis the sale price of the fertilizers, it could be established that the production of the fertilisers at Kota was uneconomical unless freight concession on the movement of naptha was granted. The appellant filed a complaint under section 41(1)(a) and (b) of the Railways Act, 1890, before the Railway Rates Tribunal. The Tri- 384 bunal decided against the appellant. Aggrieved, the appellant appealed to this Court by special leave for relief against the order and judgment of the Tribunal. Dismissing the appeal, the Court ^ HELD: Three questions arise for consideration of the Court: (1) whether the Railway Board was bound to allow the concessional rate offered to the appellant, that is, 85-B (special) quoted in its letter Ex. C 5 dt. November 5, 1966, to the appellant, (2) whether the rate charged for the carriage of the naptha between the stations concerned was unreasonable, and (3) whether the Railways were showing undue preference or advantage in respect of other traffic in contravention of the provisions of section 28 of the Railways Act. [389E-F ] Dealing with the third question first, which relates to the contravention of section 28 of the Railways Act, the scope of the section was considered by this Court in Rajgarh Jute Mills Ltd v. Eastern Railway and another, [1959] SCR 236 at 241, and the Railway Rates Tribunal, considering the material on record in the light of the decision of the Court in case, held that there was no evidence produced by the appellant to justify any grievance under section 28. This conclusions is perfectly justified. [390E; 391C] The second question above-said relates to the rate charged by the Railway Administration being per se unreasonable. Even assuming, as argued by appellant's counsel, that the Railways are earning some surplus income, that by itself is no ground to hold that the frieght charged is per se unreasonable. In the case of commodities of national needs such as foodgrains, crude oil etc., it may be necessary for the Railways to charge below the operation cost, and to offset the loss, the Railways may charge higher freight for some other classified commodities. The cost of operation cannot by itself be the basis for judging the reasonableness of the rate charged. Counsel for the appellant also argued that crude oil and naptha were comparable commodities for the purpose of carriage but there was disparity in the rates charged in respect of the two, naptha being charged at a much higher rate. The Tribunal rejected the demand of the appellant for parity in frieghts, and the Court cannot interfere with the finding to the Tribunal in this appeal under Article 136 of the Constitution. On merits also, there is no justification to demand that neptha should take the same freight rate as that of the crude oil. [391D, F-H; 392B. D-E] 385 Lastly, the first question: It relates to the correctness of the view taken by the Tribunal on doctrine of promissory estoppel consequent upon the letter Ex. 5 of the Railway Board. The Tribunal rejected this claim of the appellant. Considering the conclusion of the Tribunal on this question, it appears the Tribunal has not correctly understood the doctrine of promissory estoppel: The party asserting the estoppel must have relied and acted upon the assurance given to him. It means the party has changed or altered the position by relying on the assurance or representation. The alteration of position by the party is the only indispensable requirement of the doctrine. It is not necessary to prove further any damage, detriment or prejudice to the party asserting the estoppel. \"A promise intended to be binding, intended to be acted upon, and in fact acted upon, is binding\", said Lord Denning, sitting as a trial judge in Central London Properties Ltd v. High trees House Ltd., [1947] K.B. 130. If the promisee has acted upon the promise, the promisor is precluded from receding from his promise. The concept of detriment as it is understood now is whether it appears unjust, unreasonable or inequitable that the promisor should be allowed to resile from his assurance or representation, having regard to what the promisee has done or refrained from doing in reliance on the assurance or representation. It is, however quite fundamental that the doctrine of promissory estoppel cannot be used to compel the public bodies or The Government to carry out the representation or promise which is contrary to law or which is outside their authority or power. Secondly, the estoppel stems from equitable doctrine. it requires that he who seeks equity must do equity. The doctrine, therefore, cannot also be invoked if it is found to be inequitable or unjust in its enforcement. or the purpose of invoking the doctrine, it is not necessary for the appellant to show that the insurance contained in Ex. (I S was mainly responsible for the establishing of the factory at Kota. There may be several representation to one party from different authorities in regard to different matters. Or there may be several representations from the same party in regard to different matters; In the instant case, there was one representation by the Rajasthan government to supply power to the appellant's factory at concessional rate. There is another representation from the same government to exempt the appellant from payment of tax for a certain period. If those representations have been relied upon by the appellant, the Court would compel the authorities to adhere to their representations. What is required is the fact that the appellant was induced to act on the representations. The assurance given by the Railway Board in the letter Ex. S was not clear and unqualified. it was subject to review to be undertaken 386 when the appellant started moving the raw material. Accordingly, A appellant was put to notice that it has to approach the Railway administration again when it would review the whole matter. From the tenor of Ex. 5, the railways are entitled to say that they have reviewed the matter and found no justification for a concessional frieght rate for naptha; that does not amount to resiling from the earlier assurance. No question of estoppel arises in favour of the appellant in the case out of the representation made in Ex 5. The Court agreed with the conclusion of the Tribunal but not for all the reasons stated. Rajgarh Jute Mills Ltd v. Eastern Railway & Anr, [1959] SCR 234 at 241; Central London Properties Ltd v. High Trees House Ltd, [1947] KB 130; Central Newbury Car Auctions Ltd v. Unity Finance Ltd, [1956] 3 All ER 905 at 909; Article \"Recent Development in the Doctrine of Consideration\"-Modern Law Review, Vol. 15, P. 5, Grundt v. The Great Boulder Ptv Gold, Mines Ltd, [1938] 59 CLR 641; Mohlal Padampet Sugar Mills Co Ltd v. State of UP and ors, [1979] 2 SCR 641 at 695= [1979] 2 SCC 409; Union of India and ors v. Godfrey Philips Ltd, [1985] 4 SCC 369= [1985] Supp. 3 SCR 123 and Halsbury's Laws of England-4th Edn., Vol. 16, P. 1071, para 1595, referred to. JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 223 of 1974. From the Judgment and order dated 13.7.1973 of the Railways Rates Tribunal, Madras in Complaint No. 2 of 1969. K.K. Jain, Bishamber Lal, Pramod Dayal and A.D. Sanger for the Appellant. Bed Brat Barua, Ms. A. Subhashini,.C.V. Subba Rao, Mrs. S. Suri, P. Parmeswaran and Anil Katiyar for the Respondent. The Judgment of the Court was delivered by JAGANNATHA SHETTY, J. This appeal, with Special Leave, is against the order and judgment dated July 13, 1973, of the Railways Rates Tribunal Madras, in complaint filed by the appellant under Section 41(1) of the Indian Railways Act No. 9 of 1890. The background facts are these: The appellant is a Company. It has set up a fertilizer factory at Kota in Rajasthan. It is said to be an industrially backward area. The factory manufactures Urea for which the main raw material is Naptha. Naptha has to be transported from Koyali Refinery of Indian oil Corporation. The nearest railway station is Bajuva near Baroda. The nearest railway station serving Company's factory is Dadhevi in Rajasthan. The distance between Bajuva and Dadhevi is about 520 kms. For transportation, the Naptha has been classified by the Railway under Clause 110-B of the tariff. Before the actual setting up of the factory, the Company, by its letter dated September 5, 1966 requested the Railway Board for a concessional frieght rate for the carriage of Naptha. It requested the Railway Board for fixed Station to Station rate equivalent to classification 62.5-B. That would have meant reduction of about 43% in the normal tariff under clause 110-B. In that letter it was pointed out that if such concessional rate was not fixed, the Company would be put to disadvantageous position as against the other factories located at ports or near the refineries. The Railway Board by its letter Ex. C5 dated November 5, 1966 agreed to quote station to station rate equal to 85-B (Special). In the said letter it was also stated that as the special rate was being quoted ahead of the actual setting up of the factory the freight rate need to be reviewed when the traffic actually begins to move. When the factory was almost ready for operation the company wrote a letter dated June 5, 1967 requesting the Railway Board for charging the rate under classification 62.5-B instead of 85-B(Special). The Railway Board did not accede to the request. On May 31, 1968 the company wrote another letter informing the Railway Board that the movement of Naptha would commence from June/July 1968 and pending decision of the company's earlier request, the Railway Board may permit charging the rate equivalent to 85-B (Special) already offered in terms of the letter Ex. 5. The Railway Board refused to grant that request also. The Railway Board, however, informed the Company in the letter dated July 11, 1968 as follows: \"However, if on the basis of facts and figures your cost of production (date to be furnished for at least one complete year) vis-a-vis the sale price of fertilizers, it can be established that production of fertilizers at Kota is uneconomical, until freight concession on the movement of Naptha from Bajuva/Trombay to Kota is granted, the Railway Board would be prepared to reconsider the question.\" on April 19, 1969, the company filed a complaint under Section 41(1)(a) and (b) of the Railways Act, 1890 before the Railway Rates Tribunal Madras. The principal contentions raised in the complaint are as follows: \"(i) The Railway Board was estopped and/or precluded from going back on the assurance Of quoting station to station concessional rate 85-B when the company had in vested a large amount of capital in setting up the factory at a place away from the refinery or port (ii) The rate charges by the Railway for the carriage of Naptha between two stations-Bajuva and Dadhevi was unreasonable under Section 41(1)(b) of the Indian Railways Act, 1980, and (iii) The Railways were showing undue preference or advantage in respect of other traffic and contravening the provisions of Section 28 of the Indian Railway Act, 1890.\" With these and other contentions, the company requested the tribunal to declare the rate charged for the carriage of Naptha as unreasonable and to fix a reasonable rate for such carriage. The Railway Board in its reply maintained that while quoting the concessional rate equal to 85-B (Special) it was made clear to the company that the rate was subject to review when the traffic starts moving and that concessional rate was provisional in character. The company did not construct the factory relying solely on the concessional rate offered by the Railway Board. There was no scope for any such understanding since the Railway reserved its right to determine the correct rate when the traffic started moving. It was later found that the chemicals have been advisedly given low class rate with a view to encourage fertilizer industry and no further concession was necessary to the company. It was further stated that the question of any undue prejudice of undue favour to any party does not arise when charging the respective class rates for specified commodities. On these pleadings the Tribunal considered among others, the following issues: 1. Whether freight charges, now charged, for the carriage of a Company's traffic in Neptha from Bajuva to Dadhevi station are unreasonable under Section 41(1) of the Indian Railways Act, 1890? 2. Whether the Railways are contravening Section 28 of the Indian Railways Act in charging the respective class rates for commodities naptha, chemical manures, divisions A & B, Urea and Gypsum? 3. Whether the Railways are estopped by the doctrine of promissory estoppel in view of the assurance given in the letter Ex. C? The Tribunal determined all these questions against the company. It was held that there was no unreasonableness in the rate charged for the carriage of Naptha from Bajuva to Dadhevi. The Railways are not contravening Section 28 of the Railways Act. The rate charged has not caused any prejudice to the company. On the question of promissory estoppel, the Tribunal held that the assurance given by the Railway Board in the letter Ex. C5 was not mainly responsible for setting up of fertilizer factory at Kota. It was further held that even if Ex. CS was an assurance to the Company the withdrawal of that assurance has not adversely affected the interests of the company. Upon the submissions made by learned counsel on both sides, the following questions arise for our consideration: (1) Whether the Railway Board was bound to give the concessional rate offered to the company under Ex. C5 dated November 5, 1966? (2) Whether the rate charged for the carriage of Naptha between Bajuva and Dadhevi is unreasonable? (3) Whether the Railways are showing undue preference or advantage in respect of other traffic and contravening the provisions of Section 28 of the Railways Act? We may conveniently take up third question first for consideration. The relevant provisions of the Railways Act, 1890, which have a material bearing on the question are these: Section 41 provides for filing complaints against Railway Administration. The Section provides as follows, so far as it is material: 41(I) Any complaint that a railway administration (a) is contravening the provisions of Section 28 or (b) is charging for the carriage of any commodity between two stations a rate which is unreasonable, or (c) x x x x x may be made to the Tribunal and the Tribunal shall hear and decide any such complaint in accordance with the provisions of this chapter. Section 28 provides: \"28. A Railway administration shall not make or give any undue or unreasonable preference or advantage to, or in favour of, any particular person or railway administration, or any particular description of traffic, in any respect what soever, or subject any particular person or railway administration or any particular description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatsoever. \" The third question formulated by us relates, to the contravention of Section 28 of the Railways Act. The scope of this Section has been considered by this Court in Rajgarh Jute Mills Ltd v Eastern Railway and another, [ 1959] SCR 236 at 241. There it was observed that a party who complains against the railway administration that the provisions of Section 28 have been contravened must establish that there has been preference between himself and his goods on the one hand and his competitor and his goods on the other. Gajendragadkar, J. (as he then was) observed: \"Section 28 is obviously based on the principle that the power derived from the monopoly of railway carriage must be used in a fair and just manner in respect of all persons and all descriptions of traffic passing over the railway area. In other words, equal charges should normally be levied against persons or goods of the same or similar kinds pas sing over the same or similar area of the railway lines and under the same or similar circumstances; but this rule does not mean that, if the railway administration charges un- equal rates in respect of the same or similar class of goods travelling over the same or similar areas, the inequality of rates necessarily attract the provisions of S. 28. All cases of unequal rates cannot necessarily be treated as cases of preference because the very concept of preference postulates competition between the person of traffic receiving preference and the person or traffic suffering prejudice in consequence. It is only as between competitors in the same trade that a complaint of preference can be made by one in reference to the other.\" In the light of these principles, the Tribunal considering the material on record held that there is no evidence produced by the Company to justify any grievance under Section 28. We see no reason to disagree with this conclusion. It is, in our opinion, perfectly justified. In fact Mr. K.K. Jain learned counsel for the appellant also did not seriously dispute the correctness of that finding recorded by the Tribunal. We may now turn to the second question.Mr. K.K. Jain urged that the rate charged by the Railway Administration is per se unreasonable. Here again the onus to prove the alleged unreasonableness of the freight rests on the company. It is for the company to establish that the rate charged by the Railway Administration for the carriage of Naptha is unreasonable. Of course, this onus could be discharged by relying upon the material produced by the Railways. Mr. Jain, therefore, relied upon a statement Ex. C46 in support of his case. Ex. C46 is a statement of surplus \"working cost\" in respect of carriage of Naptha from Bajuva to Dadhevi. It is, in our opinion, not necessary to analyse the statement. Even assuming that the railways are earning some surplus income after deducting the operation cost that by itself is no ground to hold that the freight charged is per se unreasonable. It must be born in mind that the railways are run as commercial undertaking and at the same time it being an instrumentality of the State, should serve the national interest as well. There is however, no obligation on the railways to pass on the extra amount realised by the carriage of goods to customers. Nor it is necessary to share the profit with the commuters. As Mr. Barua learned counsel for the Railways said that in the case of commodities of national needs such a foodgrains, crude oil etc., it may be necessary for the Railways to charge below the operation cost. To off set such a loss the Railways may charge higher freight for certain other classified commodities. Therefore, it seems to us, that the cost of operation cannot by itself be the basis for judging the reasonableness of the rate changed. It was next urged by Mr. K.K. Jain that the crude oil and Naptha are considered as comparable commodities for the purpose of carriage. The crude oil carries the rate equal to class 85-B(old), 85(new) while Naptha carries rate 110- B(old), 105-B(new). In terms of amounts it works out at Rs.59.45 for crude oil as against Rs.73.13 for Naptha. The counsel urged that there is no justification shown for this wide disparity in the first place. Secondly, the freight rate of crude oil was the rate offered to the company under Ex. CS and the denial of that rate without any good reason is arbitrary. This argument though attractive does not carry conviction if one analyses the evidence on record. Crude oil has been clubbed with Glycerine, fruit juices and syrups, fibres, flax etc. Naptha has been clubbed with Aviation Spirit, Petrol, Petroleum, Ether and solvent oil. From the evidence produced by the Railways Naptha has been classified as a dangerous commodity with the flash point below 24.4\u00f8C spontaneously. The crude oil has no such dangerous characteristics. It is also on record that Naptha requires special type of tank wagons and the Railways have to take special precautions for transportation. These and other relevant factors have been taken into account by the Tribunal for rejecting the demand of the company for parity in freights. This Court cannot, interfere with such a finding in this appeal under Article 136 of the Constitution. On the merits also, we see no justification to demand that Neptha should take the same freight rate as that of crude oil. We may now revert to the first question. It relates to the correctness of the view taken by the Tribunal on the doctrine of promissory estoppel resulting by the letter Ex. CS of the Railway Board. The Tribunal has rejected this claim of the company by summarising its conclusion in the following terms: \"We must, therefore, hold that the assurance contained in . Ext. CS was not mainly responsible for the setting up of the Fertilizer Factory at Kota. 15.3. Even if it was held that Ex. CS was a definite encouragement to the complainant to set up the Kota factory, there is no evidence on record to show that the withdrawal of the concession by Ex. 12 has adversely affected the complainant. We will show in the (i succeeding paragraphs that the complainant has suffered no material injury by virtue of the withdrawal of the concessional rate and the charging of the normal rate. It is well settled that the principle of estoppel cannot be applied unless the person pleading estoppel can show that he has been prejudiced by the conduct of the party on whose assurance l l he has acted.\" Here the Railways Rates Tribunal apparently, appears to have gone off the track. The doctrine of promissory estoppel has not been correctly understood by the Tribunal. It is true, that is the formative period, it was generally said that the doctrine of promissory estoppel cannot be invoked by the promisee unless he has suffered 'detriment' or 'prejudice'. It was often said simply, that the party asserting the estoppel must have been induced to act to his detriment. But this has now been explained in so many decisions all over. All that is now required is that the party asserting the estoppel must have acted upon the assurance given to him. Must have relied upon the representation made to him. It means, the party has changed or altered the position by relying on the assurance or the representation. The,alteration of position by the party is the only indispensable requirement of the doctrine. It is not necessary to prove further any damage, detriment or prejudice to the party asserting the estoppel. The Court, however, would compel the opposite party to adhere to the representation acted upon or abstained from acting. The entire doctrine proceeds on the promise that it is reliance based and nothing more. This principle would be clear if we study the cases in which the doctrine has been applied even since it was burst out into sudden blaze in 1946. Lord Denning in Central London Properties Ltd v High Trees House Ltd, 11947] K.B. 130 sitting as a trial judge, asserted: \"A promise intended to be binding, intended to be acted upon, and in fact acted upon is binding ....... The history of the High Trees principle is too well known to bear repetition. It will be enough to make the following points. The promisor is bound because he led the promisee to commit himself to change the position. If the promisee has acted upon the promise, the promisor is. precluded from receding his promise. No further detriment to the promisee upon his temporal interests need be established. This position has been made clear by Lord Denning himself in his article \"Recent Developments in the Doctrine of Consideration\" Modern Law Review, Vol. 15 at p. 5. \"A man should keep his word. All the more so when the promise is not a bare promise but is made with the intention that the other party should act upon it. Just a contract is different from tort and from estoppel, so also in the sphere now under discussion promises may give rise to a different equity from other conduct. The difference may lie in the necessity of showing \"detriment\" where one party deliberately promises to waive, modify or discharge his strict legal rights, intending the other party to act on the faith of promise, and the other party actually does act on it, then it is contrary, not only to equity but also to good faith, to allow the promisor to go back on his promise. It should not be necessary for the other party to show that he acted to his detriment in reliance on the promise. It should be sufficient that he acted on it. The principle governing this branch of the subject cannot be better put then in the wolds of a great Australian jurist, DIXON, J. in Grundt v The Great Boulder Pty Gold Mines Ltd, [1938] 59 CLR 641. There he said: \"It is often said simply that the party asserting the estoppel must have been induced to act to his detriment. Although substantially such a statement is correct and leads to no misunderstanding, it does not bring out clearly the basal purpose of the doctrine. That purpose is to avoid or pre vent a detriment to the party asserting the estoppel by compelling the opposite party to adhere to the assumption upon which the former acted or abstained from acting. This means that the real detriment or harm from which the law seeks to give protection is that which would flow from the change of position if the assumption were deserted that led to it. So long as the assumption is adhered to, the party who altered his situation upon the faith of it cannot complain. His complaint is that when afterwards the other party makes a different state of affairs the basis of an assertion of right against him then, if it is allowed, his own original change of position will operate as a detriment. His action or inaction must be such that if the assumption upon which he proceeded were shown to be wrong, and an inconsistent state of affairs were accepted as the foundation of the rights and duties of himself and the opposite party, the consequence would be to make his original act or failure to act a source of prejudice.\" This passage was referred to, with approval, by Lord Denning in Central Newbury Car Auction Ltd v Unity Finance Ltd, [1956] 3 All E.R. 905 at 909. The said passage has also been quoted, with approval, by Bhagwati, J. (as he then was) in Motilal Padampat Sugar Mills Co A Ltd v state of U.P. & Ors.,[ 1979]2 SCR 641 at p. 695= 1979(2)SCC 409. The learned Judge then said: \"We do not think that in order to invoke the doctrine of promissory estoppel it is necessary for the promisee to show that he suffered detriment as a result of acting in reliance on the promise. But we may make it clear that if by detriment we mean injustice to the promisee which could result if the promisor were to recede from his promise then detriment would certainly come in as a necessary ingredient. The detriment in such a case is not some prejudice suffered by the promisee by acting on the promise, but the prejudice which would be caused to the promisee, if the promisor were allowed to go back on the promise. \" The view taken in Motilal Padmapat Sugar Mills case (supra) has been reiterated in Union of India & Ors. v. Godfrey Philips India Ltd,, [ 1985 ] 4 SCC 369 = [ 1985 ] Supp 3 SCR 123 . The concept of detriment as we know understand is whether it appears unjust, unreasonable or inequitable that the promisor should be allowed to resile from his assurance or representation, having regard to what the promisee has done or refrained from doing in reliance on the assurance or representation. It is, however, quite fundamental that the doctrine of promissory estoppel, cannot be used to compel the public bodies or the Government to carry out the representation or promise which is contrary to law or which is outside their authority or power. Secondly, the estoppel stems from equitable doctrine. It, therefore, requires that he who seeks equity must do equity. The doctrine, therefore, cannot, also be invoked if it is found to be inequitable or unjust in its enforcement. We may also state that for the purpose of invoking the doctrine, it is not necessary for the company to show that the assurance contained in Ex.C5 was mainly responsible for establishing the factory at Kota. There may be several representations to one party from different authorities in regard to different matters. Or, there may be several representations from the same party in regard to different matters. As in the instant case, there was one representation by the Rajasthan Government to supply power to the company at concessional rate. There was another representation from the same Govern- ment to exempt the company from payment of tax for certain period. There may be other representations from the same or some other authorities. If those representations have been relied upon by the company, the Court would compel those parties to adhere to their respective representations. It is immaterial whether each of the representations was wholly responsible or partly responsible for locating the factory at Kota. It is sufficient if the company was induced to act on that representation. The last and final aspect of the matter to which attention should be drawn is that for the purpose of finding whether an estoppel arises in favour of the person acting on the representation, it is necessary to look into the whole of the representation made. It is also necessary to state that the representation must be clear and unambiguous and not tentative or uncertain. In this context we may usefully refer to the following passage from Halsbury's Laws of England, Halsbury's Laws of England 4th Edn. Vol. 16 p. 1071 para 1595. \"1595. Representation must be unambiguous To found an estoppel a representation must be clear and unambiguous, not necessarily susceptible of only one interpretation, but such as will reasonably be understood by the person to whom it is made in the sense contended for, and for this purpose the whole of the representation must be looked at. This is merely an application of the old maxim applicable to all estoppels, that they \"must be certain to every intent The question now is whether the assurance given by the Railway Board in the letter Ex.C5 was clear and unqualified. But unfortunately, it is not so. It was subject to review to be undertaken when the company starts moving the raw material. Ex. C5 reads:- New Delhi I, Dated S Nov., 1966 Dear Sir, Sub: Integrated Fertilizer-PVC project at Kota, Rajasthan Rail movement of Naptha. Ref: Your letter No. SFC/Gen-72 dated 5.9.1966 I am directed to state that the Railway Board agree to quote a special rate equal o class 85-B (Special) CC: K for transport of Naptha in train loads from Bombay or Koyali to Kota, for manufacture of fertilizers. The proposed special rate will apply at owner's risk. Since the special rate is being quoted ahead of the actual setting up of the factory the rate may need to be reviewed when the traffic actually begins to move. The Railway may accordingly be approached before the traffic actually starts moving. Yours faithfully, Sd/- R.L. Sharma for Secretary Railway Board\" What does this letter mean? The first part of the letter offering the concessional rate equal to class 85-B (Special) has been completely watered down in the second part of the letter. It has been expressly stated that the rate may need be reviewed when the traffic actually begins to move. The company was put to notice that it has to again approach the Railway Administration. The Railway authorities now states that they have reviewed the whole matter and found no justification to offer a concessional freight rate for Naptha, since fertilizers are deliberately given a low classification in the tariff. From the tenor of Ex. S the Railways are entitled to state so, and it does not amount to resiling from the earlier assurance. No question of estoppel arises in favour of appellant out of the representation made in Ex. CS. We, therefore, agree with the conclusion of the Tribunal but not for all the reasons stated. In the result the appeal fails and is dismissed. In the circumstances. however, we make no order as to costs. S.L. Appeal dismissed.",
        "130196424": "IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction Appellate Side Present :\u00ad Hon'ble Justice Amrita Sinha WP No. 22018 (W) of 2018 CAN 7460 of 2019 Md. Jahidul Islam & Ors. Vs. The State of West Bengal & Ors. With WP No. 22019 (W) of 2018 CAN 7461 of 2019 Sahar Ali Laskar Vs. The State of West Bengal & Ors. For the writ petitioners :\u00ad Mr. Samim Ahammed, Adv. Mr. Arka Maiti, Adv. For the State :\u00ad Mr. Santanu Mitra, Adv. Mr. Shamim Ul Bari, Adv. [in WP No. 22018 (W) of 2018] Mr. Tapan Mukherjee, Adv. Mr. Pritam Chowdhury, Adv. [in WP No. 22019 (W) of 2018] For the respondentnos. 3, 4 and 5 :\u00ad Mr. P. S. Bhattacharyya, Adv. Mr. S. S. Koley, Adv. Mr. Arunava Maiti, Adv. For the AICTE :\u00ad Mr. Sunil Singhania, Adv. Hearing concluded on :\u00ad 20.01.2020 Judgment on :\u00ad 13.05.2020 Amrita Sinha, J.:\u00ad W.P No. 22019 (W) of 2018 The petitioner is an OBC\u00adA category candidate. He possesses the qualification of Bachelor in Technology (B.Tech) in Computer and Engineering from Aliah University. He obtained the aforesaid qualification in the year 2014 upon completion of a regular course of four years. He cleared the Graduate Aptitude Test in Engineering (GATE)\u00ad2017 and obtained the score of 40.79. In response to an advertisement dated 25 th February, 2017 published by the West Bengal State Electricity Distribution Company Limited, hereinafter referred to as 'the Company', the petitioner participated in the recruitment process for being appointed in the post of Assistant Engineer (IT & C). He was issued admit card for participating in the recruitment process. He appeared for personal interview and according to him, he performed reasonably well. Sometime in June, 2018 the petitioner came to learn that successful candidates were being issued appointment letters by the Company. As the petitioner did not receive any communication from the Company he tried to collect information of the same. On enquiry the petitioner got to learn that his candidature was cancelled. In response to an application made under the Right to Information Act, 2005 the petitioner was informed that the appointment letter was not issued in his favour even though he obtained higher marks than the last empanelled candidate, allegedly because the B.Tech course pursued by him was not approved by the All India Council for Technical Education (AICTE). The petitioner was further informed that he received a total score of 52.12 and the score of the last empanelled candidate was 36.74. W.P No. 22018 (W) of 2018 The petitioners are OBC\u00adA category candidates. They obtained the B.Tech Degree in Electrical Engineering during the period 2013\u00ad2015 from the Aliah University after completion of a regular course of four years. In response to an advertisement published by the Company the petitioners applied for being appointed in the post of Sub\u00adAssistant Engineer (Electrical). The petitioners participated in the written test and the computer proficiency test. As the petitioners were not called for the viva voce test the petitioners made enquiry wherefrom they learnt that their candidatures stood cancelled. On an application made under the Right to Information Act the petitioners were informed that their application could not be taken up for consideration as the B.Tech course completed by them was not approved by AICTE. The petitioners have filed the writ petition being aggrieved by the action of the Company in cancelling their candidature by not recognising the B.Tech degree obtained by them. The issue which falls for consideration in both the writ petitions is whether the Company was right in rejecting the candidature of the petitioners on the ground of non\u00adapproval of their B.Tech course by AICTE. As the issue to be decided in both the writ petitions are identical, both the petitions were taken up for consideration analogously and are being disposed of by this common judgment. According to the petitioners their qualification of B.Tech has been obtained from the Aliah University which is established under the Aliah University Act, 2007. The said Act was passed by the West Bengal Legislative Assembly and according to Section 2(h) and Section 10(k) of the AICTE Act, 1987 the University is empowered to grant degrees on its own, without the approval of AICTE. The petitioners have relied upon the various provisions of the UGC Act, 1956, AICTE Notifications dated 27th January, 2005 and 29th January, 2014, the Aliah University Act, 2007 in support of their contention that the respondent authority erred in rejecting their candidature. The petitioners further submit that Aliah University is recommended by the University Grants Commission as a State University and accordingly the degree granted by Aliah University is valid and the Company ought to recognize the said degree for the purpose of considering their candidature for appointment. The petitioners have annexed documents to show that AICTE has approved the B.Tech course offered by Aliah University with effect from 2015 and accordingly the degree awarded by the said University in the year 2014 and prior thereto should be deemed and treated to be an approved degree by AICTE. The petitioners pray for a direction upon the Company to issue appointment letters in their favour as they obtained more or nearly same marks as that of the last empanelled candidates in the respective posts. The petitioners rely upon the judgment delivered by the Hon'ble Supreme Court in the matter of Bharathidasan University & Anr. -vs\u00ad All India Council for Technical Education & Ors. reported in (2001) 8 SCC 676 paragraphs 8, 9, 10, 13 and 15 wherein the court took into consideration the definition of the expression \"technical institution\" under Section 2(h) of the AICTE Act which mentions that technical institution means an institution, not being a university which offers courses or programmes of technical education. It has been submitted that University has been kept out of the definition of technical institution. In the said judgment the court also took note of the fact that according to Section 2(i) of the AICTE Act \"University\" means a university defined under Clause (f) of Section 2 of the University Grants Commission Act, 1956 and also to be inclusive of an institution deemed to be a university under Section 3 of the said Act, the court was of the opinion that any regulation in exercise of powers under Section 23 of the Act, in so far as, it compels the universities to seek for and obtain prior approval and not to start any new department or course or programme in technical education (Regulation 4) and empower itself to withdraw the said approval, in a given case of contravention of the Regulations (Regulation 12), are strictly opposed and inconsistent with the provisions of Section 10(1)(k) of the Act and consequently void and unenforceable. The court held that the Regulation of AICTE could not have made, so as to bind universities/University Grants Commission in the matter of any necessity to seek prior approval to commence a new department or course and programme in technical education in any university or any of its departments and constituent institutions. The petitioners submit that in view of the law laid down by the Hon'ble Supreme Court, Aliah University was not required to seek any prior approval for granting the degree in technical education. The petitioners also rely upon the judgment delivered by a three\u00adjudge Bench of the Hon'ble Supreme Court in the matter of Dr. B. L. Asawa -vs\u00ad State of Rajasthan & Ors. reported in (1982) 2 SCC 55 wherein the court held that a degree granted by a university duly established by statute in the country has ipso facto to be regarded, accepted and treated as valid throughout the country. In the absence of any express provision to the contrary, such a degree does not require to be specifically recognized by other universities in any State in India before it can be accepted as a valid qualification for the purpose of appointment to any post in such a State. The petitioners submit that the Company ought to have appointed the petitioners in the post in question by treating their degree to be a valid one, as the same was awarded by a State university duly recognised by the UGC, more so, because they obtained reasonably more marks than that of the last empanelled candidates. Per contra, the learned advocate appearing on behalf of the Company submits that in the advertisement published on 25 th February, 2017 there was a specific indication that for the post of Assistant Engineer (IT & C), the educational qualification required is B.E./ B.Tech/ B.Sc (Engg.) degree in Information Technology / Computer Science / Electronics / Electronics & Telecommunications / Electronics & Communication / M.Sc (Computer Science)/ MCA/ B.Sc. (Hons.) with B.Tech (three years' duration) in Computer Science and Engineering from any Institute approved by AICTE/IITs. The educational qualification for being appointed in the post of Sub\u00ad Assistant Engineer (Electrical) is diploma in Electrical Engineering from any Institute/College duly recognised by any of the State Council of Technical Education (SCTE). It was specifically mentioned that the degree/diploma has to be approved by AICTE/ SCTE. The Company relies upon the communication made by the training and placement officer of the Aliah University specifically mentioning that the B.Tech courses offered by the Aliah University were not approved by AICTE during the academic years 2010 to 2015. It has been submitted that as the petitioners did not meet the requisite qualification, as prescribed in the advertisement, the employment was rightly not offered to them. It has further been contended that the petitioners never challenged the advertisement which required candidates to possess degrees/diplomas from any Institute approved by AICTE/SCTE. The petitioners being aware of the eligibility criteria participated in the recruitment process. As soon as it was revealed that the petitioners did not meet the requisite eligibility criteria as per the advertisement their candidature was cancelled. It has been urged that as the petitioners did not possess the requisite minimum essential qualification as prescribed in the advertisement, they do not have any right to be considered for appointment. Ld. Advocate for AICTE submits that the B. Tech course of the petitioners was not approved by ACITE. The respondents pray for dismissal of the writ petitions. I have heard the submissions made on behalf of all the parties. The minimum essential qualification prescribed for appointment in the post of Assistant Engineer (IT & C), as published in the advertisement, is set out herein below:\u00ad \"B.E./B.Tech/B.Sc.(Engg.) degree in Information Technology/Computer Science/Electronics/Electronics and Telecommunication/Electronic and Communication/M.Sc. (Computer Science)/MCA/B.Sc. (Hons.) with B.Tech (three years' duration) in Computer Science and Engineering from any Institute approved by AICTE/IITs.\" The minimum essential educational qualification for appointment in the post of Sub\u00adAssistant Engineer (Electrical) is diploma in Electrical Engineering from Institute/College duly recognised by any of the State Council of Technical Education (SCTE). The general instructions attached to the advertisement clearly mentioned that the candidate must fulfil the essential qualification as per the advertisement published and it will be the candidates' prerogative to ensure that he fulfils the eligibility criteria before applying. The petitioners have annexed certificates issued by the Aliah University mentioning that they obtained the degree of Bachelor of Technology in Computer Science and Engineering/Electrical Engineering in the years 2013/ 2014/2015. The Company in their affidavit in opposition has annexed a letter dated 31 st August, 2017, allegedly issued by the Training and Placement Officer of Aliah University to the Additional General Manager (HR & A) recruitment and manpower planning cell of the Company, inter alia, mentioning that the B.Tech course offered by Aliah University in the stream of Computer Science and Engineering was not approved by AICTE during the academic years 2010\u00ad2014 and 2011\u00ad2015. It was further informed that all B.Tech courses of the University have been approved by AICTE in the academic years 2015\u00ad2016. AICTE has candidly accepted the fact that the degree awarded to the petitioners was not approved by them. The petitioners have not produced any document to show that the diploma/degree awarded by Aliah university was approved by either AICTE or SCTE. From the aforesaid it is crystal clear that, the degree/diploma awarded to the petitioners by the University was not approved by AICTE/SCTE in the year 2014 or prior thereto. The minimum essential qualification required for participating in the selection process was a degree/diploma approved by AICTE. Admittedly, the degree/ diploma awarded by the University in favour of the petitioners was not approved by either the Central or State Council of Technical Education. The learned advocate representing the petitioners strenuously submits that, as the B.Tech degree/ diploma was awarded by the University, the same is not required to be approved by AICTE/ SCTE. The petitioner has relied upon the provisions of the AICTE Act, 1987, the Aliah University Act, 2007, the UGC Act, 1956 and the various notifications issued by AICTE from time to time, in support of his contention that the degree obtained by the petitioners is not required to be approved by AICTE. It has been contended that it is the degree that matters and not the approval of AICTE. As long as the petitioners possesses the degree of B.Tech (Computer Science and Engineering)/(Electrical) from a university, recognised by UGC, the degree is not required to be separately approved by AICTE/ SCTE. Prior to going into further discussions, it is noted that, the petitioners have neither challenged the advertisement nor the educational criterion set out in the advertisement for appointment in the various posts. The petitioners were ineligible to participate in the selection process the day the advertisement was published, i.e from the very inception of the recruitment process, as they did not possess the minimum essential qualification as prescribed therein. They do not appear to be aggrieved by the act of the Company in prescribing the minimum requirement of the degree/ diploma to be approved by AICTE/ SCTE. It appears that, the petitioners were all along aware that their degree/diploma was not approved by AICTE/ SCTE, but even then, took the risk of applying in response to the said advertisement, presumably on the mistaken notion that the degree/ diploma does not require any approval from AICTE/ SCTE. Whether the degree/diploma awarded by Aliah university is at all required to be separately approved by a Council of Technical Education is a different issue altogether. According to the petitioners, the degree awarded by Aliah University is equivalent to the degree awarded by any other Institute approved by AICTE/IITs. The Aliah University in their communication to the Company specifically mentioned that all the B.Tech courses of the university have been approved in the academic year 2015\u00ad2016. The aforesaid statement made by the Training and Placement Officer of the University in the letter dated 31 st August, 2017 negates the contention of the petitioners, that there was no requirement for obtaining approval of AICTE in respect of the B.Tech courses conducted by the Aliah University. Had there been no requirement of approval, then the question of granting approval to the B.Tech courses awarded by the University, does not and could not arise at all. The categorical averment by the Aliah University, that the degree of the petitioners awarded by Aliah University was not approved, stands admitted. The Company fixed the minimum essential qualification for appointment being a degree/diploma from any Institute approved by AICTE/IITs/ SCTE. It is always the choice and prerogative of an employer to fix up the minimum essential educational qualification required for appointment. The same is usually fixed as per the requirement of the employer. Fixing up the selection mode, procedure, criteria for recruitment, is the sole domain of the employer and it has been consistently laid down that the courts should abstain from transgressing into the jurisdiction of the employer, unless of course, the same is patently illegal or arbitrary. In the opinion of the Court, the act of the Company in restricting appointment amongst candidates possessing degree/ diploma approved by AICTE/ SCTE, is neither illegal nor arbitrary. Since the eligibility criteria prescribed for appointment is not under challenge, accordingly, whether the degree awarded by Aliah University and the degree awarded by any other Institute approved by AICTE/IITs are equivalent to each other, is not an issue to be decided in the instant writ petition. It is also not required to be decided whether the University was required to get the courses approved by AICTE or whether the degree awarded by the University required a separate approval or not. The issue of equivalence of the degrees, one approved by AICTE and the other not, has not been addressed by the respondents at all. The issue of validity of the degree awarded by the Aliah University has also not been addressed by the respondents. The clear stand of the respondent is that, as the petitioners did not possess a degree/diploma approved by AICTE/ SCTE, accordingly, the application of the petitioners for being appointed in the post in question, has rightly been rejected by the Company. In view of the stand taken by the respondents, the ratio of the decisions relied upon by the petitioners, in my opinion, will not be applicable in the facts and circumstances of the instant case. The petitioners have brought to the notice of this court that the Company by an office order dated 23 rd October, 2019 has modified the existing Recruitment Policy 2010 with regard to the eligibility criteria and the layout of qualification. It mentions that candidates with B.E./B.Tech/B.Sc. (Engineering) degree in the respective branch of engineering from any university or deemed university duly recognized by UGC or institute approved by AICTE, IITs/NITs or any institute of eminence or national importance or concerned statutory council (wherever applicable) will be eligible to apply for recruitment for Class\u00adI technical post. The office order is prospective in operation. As admittedly, the petitioners did not possess the requisite qualification, as per the advertisement, the action of the Company in not appointing the petitioners, even though they scored nearly similar or more marks than the last empanelled candidates, cannot be faulted. The employer Company always has the liberty to review and modify the eligibility criteria of the recruitment process as and when required, and it is not proper for the court to intrude into the domain of the employer. The employer is the best person/authority to know what is exactly required from his/its employee. A writ of Mandamus can be issued only in cases of proven breach of the fundamental or statutory right of a citizen. In the instant case, it does not appear that there has been any breach in either the fundamental or the statutory right of the petitioners. Accordingly, no direction can be issued upon the Company to treat the petitioners as eligible candidates for selection to the posts in question. Moreover, there may be candidates from various other universities possessing similar degree/diploma not approved by AICTE/ SCTE, who may have applied in response to the said advertisement, and may have met the same fate. Many may not have even applied, knowing fully well, that their degree was not approved by AICTE. The petitioners participated in the selection process without any murmur. Being unsuccessful, they cannot turn around and raise issue with the prescribed minimum essential qualification fixed by the employer. At the same time, they ought not to get any preferential treatment only because they have approached the court for relief. Since however it appears that the Company has modified its recruitment policy and have taken a decision that the candidates possessing B.Tech degree from any University, duly recognized by UGC will be eligible to apply, and as the University awarding degree to the petitioners was duly recognized by UGC it will be open for the Company to reconsider the case of the petitioners for appointment in the post in question within a period of eight weeks from the date of communication of a copy of this order. The reconsidered order of the Company will be communicated to the petitioners within a week thereafter. It is specifically made clear, that the order passed by the court shall neither be treated as a mandate upon the respondents to consider giving appointment to the petitioners, nor will it create any right in favour of the petitioners to be appointed in the posts in question. The Company shall have and exercise the discretion to appoint the best available candidate. W.P. Nos. 22018 (W) of 2018 and 22019 (W) of 2018 are disposed of. Urgent certified photocopy of this judgment, if applied for, be supplied to the parties or their advocates on record expeditiously, on compliance of usual legal formalities. (Amrita Sinha, J.)",
        "1063151": "PETITIONER: SREE SREE ISHWAR SRIDHAR JEW Vs. RESPONDENT: SUSHILA BALA DASI AND OTHERS. DATE OF JUDGMENT: 16/11/1953 BENCH: BHAGWATI, NATWARLAL H. BENCH: BHAGWATI, NATWARLAL H. MUKHERJEA, B.K. BOSE, VIVIAN CITATION: 1954 AIR 69 1954 SCR 407 CITATOR INFO : R 1965 SC1874 (17) R 1974 SC 740 (10) ACT: Hindu law-Religious endowments-Dedication of properties Dedication to idol subject to charge in favour of heirs or bequest to heirs subject to charge in favour of idol- Construction of will-Adverse possession-Possession of shebait, whether can be adverse to idol. HEADNOTE: The question whether the idol itself is the true beneficiary subject to a charge in favour of the heirs of the testator, or the heirs are the true beneficiaries subject to a charge for the upkeep, worship and expenses of the idol, has to be determined by a conspectus of the entire provisions of the deed or will by which the properties are dedicated. Pande Har Narayan v. Surja, Kunwari (I.L.R. 47 I.A. 143) referred to. A provision giving a right to the sevayats to reside in the premises dedicated to the idol for the purpose of carrying on the daily and periodical worship and festivals does not detract from the absolute character of a dedication to the idol. Gnanendra Nath Das v. Surendra Nath Das (24 C.W.N. 1026) referred to. No shebait can, so long as he continues to be the shebait, ever claim adverse possession against the idol. Surendrakrishna Ray v. Shree Shree Ishwar Bhubaneshwari Thakurani (I.L.R. 60 Cal. 54) approved. Judgment of the Calcutta High Court affirmed. JUDGMENT: CIVIL APPELLATE JURISDICTION Civil Appeal No. 201 of 1952. Appeal from the Judgment and Decree dated the 5th March, 1951, of the High Court of judicature at Calcutta (Harries C.J. and Banerjee J.) in Appeal from Original Decree No. 118 of 1950, arising out of the Judgment and Decree dated the 15th June, 1950, of the said High Court in its Ordinary Original Civil jurisdiction in Suit No. 2379 of 1948. N.C. Chatterjee (S. N. Mukherjee, with him) for the appellant. N.N. Bose (A. K. Dutt, with him) for the respondent in Civil Appeal No. 201 of 1952 and petitioner for special leave. M.C. Setalvad, Attorney-General for India, (B. Sen, with him) for respondents Nos. 1, 2 and 3 in the petition for special leave. 1953. November 16. The Judgment of the Court was delivered by BHAGWATI J.-This is an appeal on a certificate under article 133(1) of the Constitution from a judgment and decree passed by the Appellate Bench of the High Court of Calcutta, modifying on appeal the judgment and decree passed by Mr. Justice Bose on the original side of that court. One Dwarka Nath Ghose was the owner of considerable moveable and immoveable properties. On the 10th June, 1891, he made and published his last will and testament whereby he dedicated to this family idol Shree Shree Iswar Sridhar Jew his two immoveable properties, to wit, premises No. 41 and No. 40/1. Grey Street in the city of Calcutta. He appointed his two sons Rajendra and Jogendra executors of Ms will and provided that his second wife Golap Sundari and the two sons Rajendra and jogendra should perform the seva of the deity and on their death their heirs and successors would be entitled to perform the seva. Dwarka Nath died on the 16th March, 1892, leaving him surviving his widow Golap Sundari and his two sons Rajendra and Jogendra. On the 19th July, 1899, Rajendra made and published his last will and, testament whereby he confirmed the dedication made by Dwarka Nath with regard to premises Nos. 41 and 40/1 Grey Street and appointed his brother Jogendra the sole executor thereof. He died on the 31st January,1900, and Jogendra obtained on the 24th April, 1900,. probate of his said will. Probate of the will of Dwarka Nath was also obtained by jogendra on the 31st August, 1909. On the 4th September 1909, Bhupendra, Jnanendra. and Nagendra, then a minor, the three sons of Rajendra filed a suit, being Suit No. 969 of 1909,on the original side of the High Court at Calcutta against Jogendra, Golap Sundari and Padma Dassi, the widow of Sidheswar, another son of Rajendra, for the construction of the wills of Dwarka Nath and Rajendra, for partition and other reliefs. The idol was not made a party to this suit. The said suit was compromised and on the 24th November, 1910, a consent decree was passed, whereby jogendra and Golap Sundari gave up their rights to the sevayatship and Bhupendra, Jnanendra and Nagendra became the sevaits of the idol, a portion of the premises No. 41 Grey Street was ;allotted to the branch of Rajendra and the remaining portion was allotted to jogendra absolutely and in consideration of a sum of Rs. 6,500 to be paid to the plaintiffs, jogendra was declared entitled absolutely to the premises No. 40/1 Grey Street. The portions allotted to Jogendra were subsequently numbered 40/2-A Grey Street and the portion of the premises No. 41 Grey Street allotted to the branch of Rajendra was subsequently numbered 41-A Grey Street. Jogendra died on the 5th August, 1911, leaving a will whereby he appointed his widow Sushilabala the executrix thereof. She obtained probate of the will on the 6th August, 1912. Disputes arose between Bhupendra, jnanendra and Nagendra, the sons of Rajendra, and one Kedar Nath Ghosh was appointed arbitrator to settle those disputes. The arbitrator made his award dated the 12th October, 1920, whereby he allotted premises No. 41-A Grey Street, exclusively to Nagendra as his share of the family properties. Nagendra thereafter executed several mortgages of the said premises. The first mortgage was created by him in favour of Snehalata Dutt on the 19th May, 1926. The second mortgage was executed on the 4th June, 1926, and the third mortgage on the 22nd February, 1927. On the 23rd February, 1927, Nagendra executed a deed of settlement of the said premises by which he appointed his wife Labanyalata and his wife's brother Samarendra Nath Mitter trustees to carry out the directions therein contained and in pursuance of the deed of settlement he gave up possession of the said premises in favour of the trustees. Snehalata Dutt filed in the year 1929 a suit, being Suit No. 1042 of 1929, against Nagendra, the trustees under the said deed of settlement and the puisne mortgagees, for realisation of the mortgage security,. A consent decree was passed in the said suit on the 9th September, 1929. Nagendra died in June, 1931, and the said premises were ultimately put up for sale in execution of the mortgage decree and were purchased on the 9th December, 1936, by Hari Charan Dutt, Hari Pada Dutt and Durga Charan Dutt for a sum of Rs. 19,000. A petition made by the purchasers on the 12th January, 1937, for setting aside the sale was rejected by the court on the 15th March, 1937. Haripada Dutt -died on the 3rd June, 1941, leaving him surviving his three sons, Pashupati Nath Dutt, Shambhunath Dutt and Kashinath Dutt, the appellants before us. Haricharan Dutt conveyed Ms one third share in the premises to them on the 4th March,1944, and Durga Charan Dutt conveyed his one-third share to them on the 3rd May, 1946. They thus became entitled to the whole of the premises which had been purchased at the auction sale held on the 9th December, 1936. On the 19th July, 1948, the family idol of Dwarka Nath, Sree Sree Iswar Sridhar Jew, by its next friend Debabrata Ghosh, the son of Nagendra, filed the suit, out of which the present appeal arises, against the appellants as, also against Susilabala and the two sons of Jogendra by her, amongst others, for a declaration that the premises Nos. 41- A and 40/2-A Grey Street, were its absolute properties and for possession thereof, for a declaration that the consent decree dated the 24th November, 1910, in Suit No. 969 of 1909 and the award dated the 12th October, 1920, and the dealings made by the heirs of jogendra and/or Rajendra relating to the said premises or any of them purporting to affect its rights in the said premises were invalid and inoperative in law and not binding on it, for an account of the dealings with the said premises, for a scheme of management of the debutter properties and for its worship, for discovery, receiver, injunction and costs. Written statements were filed by the appellants and by Susilabala and the two sons of Jogendra denying the claims of the idol and contending inter alia that there was no valid or absolute dedication of the suit properties I to the idol and that the said premises had been respectively acquired by them by adverse possession and that the title of the idol thereto had been extinguished. The said suit was heard by Mr. Justice Bose who declared the premises No. 41-A Grey Street to be the absolute property of the idol and made the other declarations in favour of the idol as prayed for. The idol was declared entitled to possession of the said premises with mesne profits for three years prior to the institution of the suit till delivery of possession, but was ordered to pay as a condition for recovery of possession of the said premises a sum of Rs. 19,000 to the appellants with interest thereon at the rate of 6 per cent. per annum from the 19th July, 1945, till payment or till the said sum was deposited in court to the credit of the suit. The learned judge however dismissed the suit of the idol in regard to the premises No. 40/2-A Grey Street as, in his opinion, Sushilabala as executrix to her husband's estate and her two sons had acquired title to the said premises by adverse possession and the title of the idol thereto had been extinguished. The appellants filed on the 18th August, 1950, an appeal against this judgment being Appeal No. 118 of 1950. The idol filed on the 20th November, 1950, cross-objections against the decree for Rs. 19,000 and interest thereon as also the dismissal of the suit in regard to the premises No. 40/2-A Grey Street. The appeal, and the cross-objections came on for hearing before Harries C. J. and S. N. Banerjee J., who delivered judgment on the 5th March, 1951, dismissing the said appeal and allowing the cross-objection in regard to Rs. 19,000 filed by the idol against the appellants. In regard however to the cross-objection relating to premises No. 40/2-A Grey Street which was directed against Sushilabala and the two sons of jogendra the learned judges held- that the cross-objection against the co-respondents was not maintainable and dismissed the same with costs. The appellants filed on the 31st May, 1951, an appli- cation for leave to prefer an appeal to this court against the said judgment and decree of the High Court at Calcutta. A certificate under article 133(1) of the Constitution was granted on the 4th June, 1951, and the High Court admitted the appeal finally on the 6th August, 1951. On the 22nd November, 1951, the idol applied to the High Court for leave to file cross-objections against that part of the judgment and decree of the High Court,which dismissed its claims with regard to the premises No.40/2-A Grey Street. The High Court rejected the said application stating that there was no rule allowing cross-objections in the Supreme Court.The said cross-objections were however printed as additional record, By an order made by this court on the 24th May, 1953, the petition of the idol for filing cross-objections in this court was allowed to be treated as a petition for special leave to appeal against that part of the decree which was against it, subject to any question as to limitation. The appeal as also the petition for special leave to appeal mentioned above came on for hearing and final disposal before us. The appeal was argued but so far as the petition for special leave to appeal was concerned the parties came to an agreement whereby the idol asked for leave to withdraw the petition on certain terms recorded between the parties. The petition for special leave was therefore allowed to be withdrawn and no objection now survives in regard to the decree passed by the trial court dismissing the idol's claim to the premises, No. 40/2-A Grey Street. The appeal is concerned only with the premises No. 41-A Grey Street. It was contended on behalf of the appellants that the, dedication of the premises NO. 41 Grey Street made by Dwarka Nath under the terms of his will was a. partial dedication, and that his sons Rajendra and jogendra and his widow Golap Sundari, who were appointed sevayats of the idol were competent to deal with premises No. 41 Grey Street after making the due provision for the idol as they purported to do by the terms of settlement, dated the 24th November, 1910. It was further contended that Nagendra, by -virtue of the award dated the 12th October, 1920, claimed to be absolutely entitled to the premises No. 41-A Grey Street and that his possession of the said premises thereafter became adverse which adverse possession continued for upwards of 12 years extinguishing the right of the idol to the said premises. The first contention of the appellants is clearly un- tenable on the very language of the will of Dwarka Nath. Clause 3 of the said will provided \"With a view to provide a permanent habitation for the said deity, I do by means of this will, dedicate the aforesaid immovable property the said house No. 41 Grey Street together with land thereunder to the said Sri Sri Issur Sridhar Jew. With a view to provide for the expenses of his daily (and) periodical Sheba and festivals, etc. The 3 1/2 Cattahs (three and half Cattahs) of rent free land more or less that I have -on that very Grey Street No. 40/1.......his also I dedicate to the Sheba of the said Sri Sri Sridhar Jew Salagram Sila Thakur. On my demise none of my heirs and representatives shall ever be competent to take the income of the said land No. 40/1 and spend (the same)for household expenses. If there be any surplus left after defraying the Debsheba expenses the same shall be credited to the said Sridhar Jew Thakur's fund and with the amount so deposited repairs, etc; from time to time will be effected to the said house No. 41 with a view to preserve it and the taxes etc., in respect of the said two properties will be paid. . . ...... For the purpose of the carrying on the daily (and) periodical sheba and the festivals, etc. of the said Sri Issur Sridhar Jew Salagram Sila Thakur my said ,second wife Srimati Golap Moni Dasi, and 1st Sriman Rajendara Nath and 2nd, Sriman Jogendra Nath Ghose born of the womb of my first wife on living in the said house No. 41 Grey Street dedicated by me shall properly and agreeably to each other perform the sheba. etc., of the said Sri Sri Issur Sridhar Jew Salagram Sila Thakur and on the death of my said two sons their representatives, successors and heirs shall successively perform the sheba in the aforesaid manner and the executors appointed by this will of mine having got the said two properties registered in the Calcutta Municipality in the name of the said Sri Sri Issur Sridhar Jew Thakur shall pay the municipal taxes, etc.' and shall take the municipal bills in his name. None of my representatives heirs, successors, executors, administrators or assigns shall have any manner of interest in or right to the said two debutter properties and no one shall ever be competent to give away or effect sale, mortgage or in respect of the said two properties nor shall the said two properties, be sold on account of the debts of any one.\" It is quite true,that a dedication may be either absolute or partial. The property may be given out and out to the idol, or it may be subjected to a charge in favour of the idol. \"The question whether the idol itself shall be considered the true beneficiary, subject to a charge in favour of the heirs or specified relatives of the testator for their upkeep, or that, on the other hand, these heirs shall be considered the true beneficiaries of the property, subject to a charge for the upkeep, worship and expenses of the idol, is a question which can only be settled by a conspectus of the entire provisions of the will\": Pande Har Narayan v. Surja Kunwari(1). What we find here in clause 3 of the will is an absolute dedication of the premises No. 41 Grey Street to the idol as its permanent habitation with only the right given to the sevayats to reside in the said premises for the purposes of carrying on the daily and periodical seva and the festivals, etc., of the deity. The said premises are expressly declared as dedicated to the deity. They are to be registered in the municipal records in the name of the deity, the municipal bills have got to be taken also in his name and none of the (1) [1921] L. R. 48 I. A. 143, 145, 146., testator's representatives, heirs, successors, executors, administrators or assigns is to have any manner of interest in or right to the said premises or is to be competent to give away or effect sale, mortgage, etc., of the said premises. There is thus a clear indication of the intention of the testator to absolutely dedicate the said premises to the deity and it is impossible to urge that there was a partial dedication of the premises to the deity. The only thing which was urged by Shri N. C. Chatterjee in support of his contention was that the right to reside in the premises was given to the sevayats and that according to him detracted from the absolute character of the dedication. This argument however cannot avail the appellants. It was observed by Lord Buckmaster in delivering the judgment of the Privy Council in Gnanendra Nath Das v. Surendra Nath Das (1): \"In that case it is provided that the shebait for the time being shall be entitled to reside with his family in the said dwelling-house, but the dwelling-house itself is the place specially set apart for the family idols to which specific reference is made in the will, and in their Lordships' opinion the gift is only a perfectly reasonable arrangement to secure that the man in whose hands the supervision of the whole estate is vested should have associated with his duties the right to reside in this named dwelling place.\" The first contention of the appellants therefore fails and we hold that the dedication of the premises No. 41 Grey, Street to the idol was an absolute dedication. As regards the second contention, viz., the adverse possession of Nagendra, it is to be noted that under the terms of clause 3 of the will of Dwarka Nath the representatives, successors and heirs of his two sons Rajendra and Jogendra were successively to perform the seva in the manner therein mentioned and Nagendra was one of the heirs and legal representatives Of Rajendra. He was no doubt a minor on the 24th November, 1910, when the terms of settlement were arrived at between the parties to the suit No. 969 of (1) (1920) 24 C.W.N. 1926 at p. 1030. 1909. His two elder brothers Jnanendra and Bhupendra were declared to be the then sevayats, but a right was reserved to Nagendra to join with them as a sevayat on, his attaining majority. So far as Nagendra is concerned there is a clear finding of fact recorded by Mr. Justice Bose on a specific issue raised in that behalf, viz, \"Did Nagendra act as shebait of the plaintiff deity under the wills of Dwarka Nath Ghosh and Rajendra Nath Ghosh ?\" that he did act as such shebait and that his possession of the premises No. 41A Grey Street was referable to possession on behalf of the idol, This finding was not challenged in the appeal court and it is too late to challenge the same before us. If Nagendra was thus a sevayat of the idol it could not be urged that his possession could in any manner whatever be adverse to the idol and his dealings with the said premises in the manner he purported to do after the 12th October, 1920, could not be evidence of any adverse possession against the idol. The position of the sevayat and the effect of his dealings with the property dedicated to the idol has been expounded by Rankin C.J. in Surendrakrishna Ray v. Shree Shree Ishwar Bhubaneshwari Thakurani (1) :- \"But, in the present case, we have to see whether the possession of two joint shebaits becomes adverse to the idol when they openly claim to divide the property between them. The fact of their possession is in accordance with the idol's title, and the question is whether the change made by them, in the intention with which they hold, evidenced by an application of the rents and profits to their own purposes and other acts, extinguishes the idol's right. I am quite unable to hold that it does, because such a change of inten- tion can only be brought home to the idol by means of the shebait's knowledge and the idol can only react to it by the shebait. Adverse possession,in such circumstances is a notion almost void of content. True, any heir or perhaps any descendant of the founder can bring a suit. against the shebaits on the idol's behalf and, in the present case, it may be said that the acts of the shebaits must have I been notorious in the family. (1) (I 933) 60 Cal 54 at 7 7 But such persons have no legal duty to protect the endowment and, until the shebait is removed or controlled by the court, he alone can act for the idol.\" We are in perfect accord with the observations made by Rankin C.J. If a shebait by acting contrary to the terms of his appointment or in breach of his duty as such shebait could claim adverse possession of the dedicated property against the idol it would be putting a premium on dishonesty and breach of duty on his part and no property which is dedicated to an idol would ever be safe. The shebait for the time being is the only person competent to safeguard the interests of the idol, his possession of the dedicated property is the possession of the idol whose sevait he is, and no dealing -of his with the property dedicated to the idol could afford the basis of a claim by him for adverse possession of the property against the idol. No shebait can, so long as he continues to be the sevait, ever claim adverse possession against the idol. Neither Nagendra nor the appellants who derive their title from the auction sale held on the 9th December, 1936, could therefore claim to have perfected their title to the premises No. 41-A Grey Street by adverse possession. The second contention of the appellants also therefore fails. The further contention urged on behalf of the appellants in regard to the disallowance of the sum of Rs. 19,000 by the appeal court could not be and was not seriously pressed before us and does not require any consideration. The result therefore is that the appeal fails and must stand dismissed with costs. Appeal dismissed. Agent for the appellant : P. K. Chatterice. Agent for the respondent No. 1 in the appeal and the petitioner, in the petition for special leave : Sukumar Ghose. Agent, for the respondents Nos. 1, 2 & 3 in the petition for special leave : P. K. Ghose.",
        "47053425": "HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED A.F.R. Court No. - 1 Case :- MATTERS UNDER ARTICLE 227 No. - 3268 of 2020 Petitioner :- Sardar Gurmeet Singh And Another Respondent :- Smt.Raj Katyal Counsel for Petitioner :- Mohd. Aqueel Khan,Chandra Bhan Gupta Counsel for Respondent :- C.M.Rai Hon'ble J.J. Munir,J. This petition under Article 227 of the Constitution is directed against an order declaring vacancy dated 30.10.2018 followed by an order, rejecting a review of the vacancy order and granting release of the demised premises, passed under Section 15(1) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. 13 of 1972)1. Also impugned is a revisional affirmation of both these orders by the Additional District Judge, Court No. 13, Kanpur Nagar vide judgment and order dated 11.09.2020 passed in Rent Revision No. 36 of 2018. 2. The issue in this petition is about two adjoining shops located in a house bearing Premises No. 122/229, Sarojini Nagar, Kanpur Nagar. The said shops are hereinafter referred to as the 'shops in dispute'. The two shops were let out to one Sundar Singh, who died issue-less. He was unmarried. The owner and the landlady of the demised premises, Smt. Raj Katyal made an application dated 20.12.2017 before the Rent Control and Eviction Officer, Kanpur Nagar, seeking a declaration of deemed vacancy of the shops in dispute on ground that the tenant Sardar Sundar Singh had died on 21.10.2017 and after his death, his nephews, Gurmeet Singh and Ranjeet Singh had illegally occupied the said shops. It was stated that Gurmeet Singh and Ranjeet Singh were not members of the deceased-tenant's family. It was also said that Sardar Sundar Singh was unmarried, and, therefore, had neither left behind a wife or children. The occupation of the shops in dispute by Gurmeet Singh and Ranjeet Singh was claimed to be unlawful, giving rise to a deemed vacancy. 3. It was also asserted that the landlady required the shops in dispute bona fide for her need and that of her family. It was also said that at the appropriate stage, the landlady would make an application seeking release of the shops in dispute under Section 16(1)(b) of the Act of 1972. The Rent Control and Eviction Officer2 directed an inquiry to be made in the matter of vacancy by the Rent Control Inspector. The Rent Control Inspector submitted a report dated 25.01.2018 to the RC & EO. Gurmeet Singh and Ranjeet Singh, who are the petitioners here and faced prospects of the shops in dispute in their possession being declared vacant, filed objection dated 30.04.2018 in the vacancy matter. It was in substance said in the objection that the shops in dispute were rented out to the petitioners' uncle in the year 1967 by the then landlord. The late Sundar Singh, during his lifetime, had admitted the petitioners, his nephews, as partners in his business. In one of the shops, Ranjeet Singh was carrying on trade in watches along with his uncle whereas in the other, Gurmeet Singh was carrying on the trade of dealing in scrap, also along with his uncle. Thus, both the petitioners were in occupation of the two shops as partners with the deceased and lawful tenant thereof, the late Sundar Singh. 4. It was also asserted in the objections that the landlords have never raised any objection to the petitioners occupying and doing business in the shops in dispute over a period as long as 45 years. It was also asserted that after 20.12.2017, when Sardar Sundar Singh suffered from indifferent health, the petitioners had paid rent to the landlady, Smt. Katyal in the sum of Rs.25,000/-, though no receipt for the said rent was issued under the pretext of the plaintiff's receipt book not being by then available. It was also the petitioners' case set out in the objection that both of them had their electricity meters installed on the shop that each was doing business in showing the length and the settled character of their possession as the lawful occupants. 5. Parties exchanged pleadings and evidence in the vacancy matter and the RC & EO vide order dated 30.10.2018 passed in Case No. 2 of 2018, under Section 15(1) of the Act of 1972, declared the shops in dispute to be vacant. He ordered publication of the vacancy in a Hindi and English Daily, directing the matter to come up on 12.11.2018 for consideration of the release/ allotment matter. At this stage, the landlady made an application under Section 16(1)(b) of the Act of 1972 with a prayer to release the shops in dispute in favour of her daughter, Km. Charu Katyal. 6. Pending the release application, the petitioners moved an application for review before the RC & EO, seeking a review of the vacancy order dated 30.10.2018. The RC & EO rejected the review by means of his order dated 04.12.2018 and directed release of the shops in dispute in favour of the landlady. The petitioners challenged both the orders dated 30.10.2018 and 04.12.2018, last mentioned, by carrying a revision under Section 18 of the Act of 1972 to the District Judge, Kanpur Nagar. The revision aforesaid was registered on the file of the learned District Judge as Revision no.36 of 2018. The revision, on assignment, came up before the Additional District Judge, Court no.13, Kanpur Nagar, who proceeded to dismiss the same by his judgment and order dated 11.09.2020. 7. Aggrieved, Gurmeet Singh and Ranjeet Singh have instituted the present petition under Article 227 of the Constitution. 8. Pending this petition, Gurmeet Singh died and his heirs and legal representatives have been substituted as petitioner nos. 1/1, 1/2 and 1/3. 9. Heard Mr. Mohd. Aqueel Khan, learned Counsel for the petitioners and Mr. C.M. Rai, learned Counsel appearing on behalf of the sole respondent-landlord. He waived his right to file a counter affidavit. 10. It appears from a wholesome detail of the case that the petitioners pleaded before the two Courts below that Sardar Sundar Singh and the petitioners' father, Sardar Kesar Singh, who were brothers, were joint tenants of the shops in dispute. Since Sardar Sundar Singh was the elder of the two brothers, rent receipts were issued in his name, but both brothers carried on business jointly in the shops in dispute. Sardar Sundar Singh was unmarried and had no issues. The petitioners' father and the petitioners looked after Sundar Singh, taking care of his needs, including lodging, board, facilitating medical treatment etc. Sardar Sundar Singh died on 21.10.2017. It was after that event that the respondent launched the present proceedings seeking to declare a vacancy and asking for release of the shops in dispute. It was said that the Rent Control Inspector served notice under Rule 8(2) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 19723. Both parties, including the petitioners made their statements before the Rent Control Inspector. The Inspector found the petitioners to be in possession of the shops in dispute. The Inspector was informed that the shops in dispute were earlier owned by one Jagat Ram Thakur, who had rented them out to Sardar Sundar Singh. The petitioners along with Sardar Sundar Singh carried on business jointly in the shops in dispute. 11. There are assertions about the petitioners being paid compensation in the year 1986, on account of their property housed in the shops in dispute along with Sardar Sundar Singh being pillaged, during the 1984 anti-Sikh riots. It is on the basis of collateral evidence, like the compensation that the petitioners received from the Government for the loss sustained during the 1984 riots, the electricity meters installed in their name in the shops in dispute, that the petitioners seek to show that they were into some kind of a partnership business with Sardar Sundar Singh, who was nominally or formally the tenant of the shop along with the petitioners and their father, being the family elder. 12. In substance, it is the endeavour of the petitioners to establish that they, along with Sardar Sundar Singh, were carrying on business in partnership, where their father too was a partner ever since inception of the tenancy. They urged that the shops in dispute were the business premises of a partnership enterprise comprising Sardar Sundar Singh, the petitioners' father Sardar Kesar Singh and the petitioners. This case is urged in order to place the shops in dispute beyond the mischief of the provisions of Section 12(2) of the Act of 1972. Section 12(2) reads : \"12. Deemed vacancy of building in Certain cases.- (1) A, landlord or tenant of a building shall be deemed to have ceased to occupy the building or part thereof if- (a) he has substantially removed his effects therefrom, or (b) he has allowed it to be occupied by any person who is not a member of his family, or (c) in the case of a residential building, he as well as members of his family have taken up residence, not being temporary residence, elsewhere. (2) In the case of a non-residential building, where a tenant carrying on business in the building admits a person who is not a member of his family as a partner or a new partner, as the case may be, the tenant shall be deemed to have ceased to occupy the building. (3) In the case of a residential building, if the tenant or any member of his family builds or otherwise acquires in a vacant state or gets vacated a residential building in the same city, municipality, notified area or town area in which the building under tenancy is situate, he shall be deemed to have ceased to occupy the building under his tenancy : Provided that if the tenant or any member of his family had built any such residential building before the date of commencement of this Act, then such tenant shall be deemed to have ceased to occupy the building under his tenancy upon the expiration of a period of one year from the said date. (4) Any building or part which a landlord or tenant has ceased to occupy within the meaning of sub-section (1), or sub-section (2) , or sub-section (3), shall, for the purposes of this Chapter, be deemed to be vacant.\" 13. The petitioners want this Court to accept that their family comprising their father, Sardar Kesar Singh, Sardar Sundar Singh and the two petitioners, were tenants of the shops in dispute jointly from the inception of the tenancy. It is not that Sardar Sundar Singh alone was the tenant of the shops in dispute but also had the petitioners as partners in his business, housed in the two shops. It is also urged on behalf of the petitioners that they being tenants in occupation of the shops in dispute, with the consent of the landlady much before the commencement of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976 w.e.f. 05.07.1976, against whom no suit or proceedings for eviction were pending before any Court or Authority on the date of such commencement, their tenancy would stand regularized under Section 14 of the Act of 1972, even if it is otherwise in breach of Section 12(2). It is also urged that proceedings for declaration of vacancy are time barred as the respondent was aware, since 1998 about the business being carried on by the petitioners in the shops in dispute, whereas the application for declaration of vacancy was moved much after 12 years, that is to say, on 12.12.2017. In support of this rule of limitation, vis-a-vis the right of the landlady to initiate proceedings for declaration of vacancy, reliance has been placed on the decision of this Court in Hazi Naseem Ahmad v. R.C.E.O./A.D.M. (C.S.), Varanasi & Others4. The said decision lays down a rule of limitation barring proceedings for declaration of vacancy being initiated after lapse of a period of 12 years from the date of accrual of the cause of action. In Hazi Naseem Ahmad (supra), it has been held: \"6. On a plain reading of the relevant provision of the Act, it does appear that no period of limitation for declaration of a vacancy actually or deemed has been prescribed under the Act. The question, then, arises if no period of limitation has been prescribed, an application for declaration of vacancy can be filed within a reasonable period. It has been held in Abdul Khaliq v. Additional District Magistrate, Varanasi, 2007 (2) ARC 629, that with respect to the proceedings under Section 12 of the Act, a period of 12 years should be taken as reasonable time for initiating the proceedings under the Statute from the date of cause of action arises. In this case, the Court has relied upon a decision of the Apex Court in the case of Mansha Ram v. S. P. Pathak and others, AIR 1983 SC 1239. In Anil Kumar Dixit v. Smt. Maya Tripathi and another, 2006 (1) ARC 377 : 2006 (1) AWC 649, the above view has been reiterated. 7. The aforesaid pronouncements have been constantly followed by this Court as is apparent from Sarla Devi v. Shailesh Kumar and Ors. 2008 (3) ARC 632 and Jamuna Devi v. District Judge, Kanpur Nagar and others, 2009 (1) ARC 266. There is, thus, no reason for me to take a contrary view. 8. In Shambhu alias Shambhu Dayal (supra) it has been held by this Court that a conjoint reading of Sections 11 and 13 of the U.P. Act No. 13 of 1972 prohibits the letting without order of allotment and it can safely be concluded that the Act restrains the landlord for giving the accommodation on rent without a valid order or allotment and none can occupy without issuance of valid allotment order in his favour. 9. It appears that the attention of the Court was not drawn to the earlier decision of this Court in the case of Anil Kumar Dixit v. Smt. Maya Tripathi (supra). Nor the attention of the Court was invited towards the judgment of the Apex Court in the case of Mansha Ram v. S. P. Pathak (supra). Therefore, the decision laid down therein should be read and understood in the context of the fact of that case.\" 14. The learned Counsel for the respondent, on the other hand, has opposed the submissions made by the petitioners and said that given the provisions of Sections 12(1) and 12(2) of the Act of 1972, the petitioners, who are not members of the tenant's family, cannot be inducted as partners or new partners in any business, nor can the tenant permit occupation of a tenanted premises by a person, who is not a member of his family. It is urged that the brother's son does not fall within the definition of family in relation to a tenant of a building as defined under Section 3(g) of the Act of 1972. Therefore, occupation by the petitioners clearly attracts the fiction under Sections 12(1) and 12(2) of the Act of 1972 leading to a deemed vacancy in the shops in dispute. It is also argued that there is no evidence led on behalf of the petitioners to show that they were carrying on business in the shops in dispute as a partnership from inception of the tenancy, along with Sardar Sundar Singh. 15. I have considered rival submissions advanced by the learned Counsel for parties and perused the record. 16. The petitioners' case that the two along with their father and the tenant, late Sardar Sundar Singh, were all tenants together in the shops in dispute, where they were doing business as partners, is difficult to accept. Admittedly, the tenancy stood in the name of late Sardar Sundar Singh alone, about which the petitioners say that the tenancy was recorded formally in his name as he was the senior most member of the family. They want this Court to accept that Sardar Sundar Singh was a karta of sorts of a joint family, where all the four persons were carrying on business in partnership; and, this partnership of ''four' was the tenant in the shops in dispute. There is no rent deed or rent note or rent receipt in the name of the petitioners, their father and Sardar Sundar Singh. There is no document either to show that there was any partnership firm, comprising these men in existence, let alone being that the partnership firm was inducted as a tenant in the year 1967. 17. To the contrary, it is accepted that it was Sardar Sundar Singh who contracted a tenancy of the shops in dispute in the year 1967 with the then owner/ landlord. There is also no municipal assessment record that may show the tenancy to stand jointly in the name of Sardar Sundar Singh, his brother Kesar Singh and the petitioners. There is also no case that there was an order of allotment issued by the competent Authority way back in the year 1967, allotting the shops in dispute to Sardar Sundar Singh, his brother Kesar Singh and the petitioners together, as joint tenants or as a partnership for the purpose of doing business. To the contrary, the tenor of the evidence shows that the shops in dispute were in the exclusive tenancy of Sardar Sundar Singh for the purpose of carrying on his business, that he had divided into two departments, one relating to some kind of a trade in watches and the other in scrap. 18. Evidence is also eloquent about the fact that Sardar Sundar Singh was an unmarried and issue-less man. The two petitioners being his brother's sons, helped him with his business. The petitioners appear to have grown dominant in that business with an aging Sundar Singh. They later on divided the business in the two shops between them with Sundar Singh occupying the back seat until his demise on 21.10.2017. What does not appear to be in doubt is the fact that till the end of his life, it was Sardar Sundar Singh, who was the lawful tenant of the shops in dispute. Tenancy, even in case of one that is regulated or governed by Statute, is a matter of contract between the landlord and the tenant. Unless there be evidence to show that there is an underlying contract between the tenant and the landlord that constitutes a demise of the tenanted premises, it is difficult to infer tenancy from mere incidents of occupation of a premises by one who claims that status. 19. The evidence offered by the petitioners about receiving compensation in the year 1986 for the 1984 Anti-Sikh Riots on ground of their business and property being damaged, that was placed in the shops in dispute, cannot lead to an inference of tenancy of any kind in favour of the petitioners. All that would show is that the petitioners were lending a helping hand to Sardar Sundar Singh in his business, who was their father's brother. One inference could be that taking advantage of this fortuitous circumstance, they claimed compensation for damages to property, that were lawfully the effects of their uncle's business. The other would lead to a result hardly favourable to the petitioners, and that would be that the petitioners indeed entered into a partnership with Sardar Sundar Singh, when their property was destroyed during Anti-Sikh Riots, for which they received compensation from the Government. If that be so, it brooks little doubt that the petitioners not being members of Sardar Sundar Singh's family as defined under Section 3(g) of the Act of 1972, the act of Sardar Sundar Singh in permitting the petitioners, constitutes admission of persons as partners or new partners, who were not members of Sundar Singh's family. It would clearly attract the fiction under Section 12(2) of the Act of 1972, leading to a deemed vacancy. On the evidence that has figured on record, if it is held that Sundar Singh did not admit the petitioners as partners to his business, but with aging years, allowed them to occupy the shops in dispute to carry on their own business, the tenant would still be deemed to have ceased to occupy the shops in dispute under Section 12(1)(b) of the Act of 1972. Section 3(g) of the Act of 1972 enlists, who would be members of the tenant's family for the purposes of the Act. It reads: \"3. Definitions.--In this Act, unless the context otherwise requires-- (g) \"family\", in relation to a landlord or tenant of a building, means, his or her-- (i) spouse, (ii) male lineal descendants, (iii) such parents, grandparents and any unmarried or widowed or divorced or judicially separated daughter or daughter of a male lineal descendant, as may have been normally residing with him or her, and includes, in relation to a landlord, any female having a legal right of residence in that building;\" 20. Clearly, the petitioners, who are collaterals of Sardar Sundar Singh and not his lineal descendants, do not qualify as members of his family. Whichever way, the petitioners' entry in the shops in dispute is viewed during the lifetime of Sardar Sundar Singh, the inference of a deemed vacancy is inescapable. 21. It is alternatively argued that the petitioners being brother's sons of Sundar Singh, who was an issue-less man, were entitled to inherit his tenancy, upon his demise as they are his heirs under the law of succession applicable to parties. In this connection, it is emphasized that for the purpose of inheriting the tenancy, Section 3(g) of the Act of 1972 is not at all relevant. The definition of ''family' there with reference to the provisions of Sections 12(1) and 12(2) would apply, if the petitioners' rights are to be determined as tenants, entering the shops in dispute during the lifetime of Sundar Singh. If they are to be regarded as mere helping hands during Sundar Singh's lifetime, but his heirs entitled to inherit the tenancy upon his demise, Section 3(g) is not at all relevant. In that case, their rights would be governed by Section 3(a)(2) of the Act of 1972. Section 3(a) reads: \"3. Definitions.--In this Act, unless the context otherwise requires-- (a) \"tenant\", in relation to a building, means a person by whom its rent is payable, and on the tenant's death-- (1) in the case of a residential building, such only of his heirs as normally resided with him in the building at the time of his death; (2) in the case of a non-residential building, his heirs]; Explanation.--An occupant of a room in a hotel or a lodging house shall not be deemed to be a tenant;\" 22. In support of their contention, reliance has been placed by Mr. Mohd. Aqueel Khan on behalf of the petitioners on the decision of the Supreme Court in Durga Prasad v. Narayan Ramchandaani (Dead) through Legal Representatives5 where it has been held: \"9. A careful analysis of the above provisions indicates that Section 3(a) uses the word \"heir\". Definition in Section 3(a) deals with the contingency when a tenant dies. It is significant to note that the words \"family member\" are absent in Section 3(a). \"Family member\" are defined under Section 3(g) of U.P. Act 13 of 1972 and is also referred to in Section 12 of U.P. Act 13 of 1972. The word \"heir\" in Section 3(a) is used in relation to a \"tenant\" who has to succeed as \"tenant on the tenant's death\"; while \"family\" is used in Section 12 which deals with a situation of an existing tenant. The definition of \"family\" as occurring in Section 3(g) may not be relevant for the purposes of determining the question as to who would become tenant on the death of the original tenant, since Section 3(a) uses the word \"heir\". 10. In the present case, we are dealing with the case as to who would become \"tenant\" on the death of Lalita. Hence, the definition of \"family\" is not relevant for the purposes of determining as to who would become tenant on the death of tenant Lalita. The only question falling for consideration is whether the appellant brother of the tenant Lalita is an \"heir\" under Section 3(a) of U.P. Act 13 of 1972. The word \"heir\" is not defined in the Act. \"Heir\" is a person who inherits or may inherit by law. Section 3(1)(f) of the Hindu Succession Act defines \"heir\" as-- \"3. (1)(f) \"heir\" means any person, male or female, who is entitled to succeed to the property of an intestate under this Act;\" The word \"heir\" has to be given the same meaning as would be applicable to the general law of succession. In the present case, as pointed out by the High Court, the deceased tenant Lalita being a Hindu female, the devolution of tenancy will be determined under Section 15 of the Hindu Succession Act.\" 23. The aforesaid guidance of their Lordships in Durga Prasad shows without doubt that in the event the tenancy is regarded as one that was exclusively held by Sundar Singh until his death, Section 3(g) of the Act of 1972 would not be relevant to decide, who would inherit the tenancy. That would be governed by Section 3(a) of the Act of 1972. A perusal of Section 3(a) (2) shows that in case of of a non-residential building, it would be the heirs of the tenant. The decision in Durga Prasad clearly holds that the word 'heir' under Section 3(a) of the Act of 1972 has to be given the same meaning as would be applicable under the general law of succession. Admittedly, the parties being Sikhs, their right to succession would be governed by the Hindu Succession Act, 19566. Section 8 of the Act of 1956 provides that the property of a male Hindu dying intestate shall firstly devolve upon his heirs, specified in Class I of the Schedule and if there be none in Class I, upon the heirs, specified in Class II of the Schedule. Section 9 of the Act of 1956 provides for the order of succession amongst heirs in the Schedule. It lays down the rule that various heirs in Class II shall take in the manner that an heir placed in the higher entry, shall be preferred to those in the lower entry. Now, Sundar Singh died intestate leaving behind his brothers, Sardar Kesar Singh and Sardar Balbir Singh. The fact that these two brothers of Sundar Singh were alive at the time of his death, had been recorded for a finding of fact by the learned Additional District Judge in the order impugned. There is no issue about it for a fact. Brothers and brother's sons, both qualify as Class II heirs under the Schedule appended to the Act of 1956. Brothers of a deceased Hindu male instate are placed in Entry II, whereas brother's son is placed in Entry IV. Clearly, therefore, upon death of Sardar Sundar Singh, if any one would have inherited his tenancy, it would be his brothers, Kesar Singh and Balbir Singh. Though, there is a case to begin with that Kesar Singh, Sundar Singh and the petitioners, together had entered the shop in dispute as joint tenants doing business in partnership, it has already been held that there is absolutely no evidence about it. There is no case that Sardar Kesar Singh or for that matter Sardar Balbir Singh, ever laid a claim to succeed to the tenancy of the late Sundar Singh. It is not the case of the petitioners either that they claim through Sardar Kesar Singh in any way. The unexceptionable inference is, therefore, that during lifetime of Sardar Kesar Singh and Sardar Sundar Singh, the petitioners could not have succeeded to the tenancy of Sardar Sundar Singh. 24. It was urged on behalf of the petitioners that Sardar Sundar Singh and Sardar Balbir Singh, being Class II heirs in Entry II of the Schedule, if they did not claim rights to the tenancy they inherited from Sardar Sundar Singh, it would pass to the next available Class II heirs, that is to say, the petitioners, who figure in Entry IV. This submission is not tenable. The correct position of the law is that so long as the heir entitled to inherit is alive, the heir lower down in the order of inheritance cannot inherit. There is no passing over of the heir entitled in the order of priority under the Schedule appended to the Act of 1956, as if it were, if the heir immediately entitled on the death of a Hindu intestate does not assert his right. In this regard, reference may be made to the proposition about a tenancy being inherited by a person lower in order of priority than the heir available and entitled to inherit, that fell for decision of this Court in Om Prakash & Others v. The Prescribed Authority & Others7. In Om Prakash (supra) it was held : \"12. In view of the clear and specific meaning of the word \"heir\" what has to be seen is whether the petitioners would inherit the properties of Ganpat Ram (assuming that he was the original tenant). Succession to the property of a Hindu dying intestate has been indicated in the Hindu Succession Act, 1956. Section 8 of the said Act provides that the property shall devolve upon the heirs specified in Class I of the Schedule and if there was no heir of Class I then upon the heirs specified in Class II and so on. A grandson in the life-time of his father would not inherit the properties of the grandfather dying intestate. Tenancy right is immovable property. It is heritable as any. other immovable property. 13. On the death of Ganpat Ram (assuming that he was the original tenant), the tenancy right would devolve upon his heir in accordance with the provisions of the Hindu Succession Act and consequently Chhotu Ram alone, in his capacity as son and heir of Ganpat Ram, would become the tenant of the premises in question. The petitioners in their capacity as grand children of Ganpat Ram would not inherit the tenancy right in the presence of their father, Chhotu Ram. In any case since it was at no time pleaded that the petitioners along with their father and grand father constituted a joint Hindu family, it is not required of me to look to the provisions of Section 6 of the Hindu Succession Act under which the interest of the deceased devolves upon the surviving members of coparcenary, The Prescribed Authority, therefore, does not appear to have committed any error in rejecting the application of the petitioners on the ground that they have not inherited tenancy rights and that they were not necessary parties to the proceedings under Section 21 of the Act.\" 25. This question whether an heir lower down in order of preference was entitled to inherit the tenancy, arose in the context of Act of 1972 in Man Singh v. Machau Lal & Others8. The facts giving rise to the issue in Man Singh are succinctly narrated in paragraph nos. 2 and 3 of the report, which read : \"2. The facts found by the Courts below and which are not in dispute, lie within a narrow compass. One Smt. Kashi Devi was admittedly residing in the accommodation in dispute as its tenant. The Plaintiff-Respondents were the landlords of the same. At the time of her death in the year 1973, the Appellant who is the son of the brother of Smt. Kashi Devi's husband, was residing with Smt. Kashi Devi. The Appellant's father Gopal Singh, though alive at that time, was, however, not residing with Smt. Kashi Devi. Gopal Singh also died in 1975. On the death of Smt. Kashi Devi the present suit was brought by the Plaintiff-Respondents against the Appellant on the ground that the Appellant was residing with Smt. Kashi Devi only as the latter's licensee and inasmuch as he was not an heir of Kashi Devi he did not inherit her tenancy rights. With the result that after her death the Appellant had ceased to have any legal claim to remain in possession over the disputed accommodation. 3. The defence of the Appellant, on the other hand, was that, firstly, he had legally inherited the tenancy rights of Kashi Devi as one residing with her normally and also being an heir and consequently till his tenancy was determined the Plaintiff could not seek a decree for dispossession; and, secondly, he having been adopted by Nanhe Singh and his wife Smt. Kashi Devi, he became a tenant of the disputed accommodation after the death of Smt. Kashi Devi, Nanhe Singh the original tenant having predeceased Kashi Devi.\" 26. In the context of the said facts, it was held in Man Singh (supra) dealing with a similar contention as the one now raised before us thus : \"10. The question that, however, falls , for determination is whether we should import the considerations of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, as suggested by Sri. S.M. Dayal, in determining the question as to who was the heir of Smt. Kashi Devi entitled to claim the tenancy rights after the death of Kashi Devi. Sri. Dayal submitted that as Gopal Singh was not residing with Smt. Kashi Devi, he did not inherit her tenancy rights. Consequently this Court should hold that there was no heir available among those mentioned in the second entry of Class II. That being so, the heirs mentioned in the fourth entry of Class II should be deemed to have inherited the tenancy rights of Smt. Kashi Devi. 11. I find it difficult to accept the contention. The submission can be accepted only by stretching the language of the statute, viz. Section 3(a)(1) of U.P. Act No. 13 of 1972 beyond permissible limits. In fact, what the learned Counsel wants this Court to hold is that in construing the term 'heirs' in Clause (1) we should read further that if a preferential heir was not residing with the deceased tenant then the heir next in order of preference as prescribed under the Hindu Succession Act who was residing with the tenant, should be deemed to be the heir of the tenant within the meaning of that clause. Such a construction is not warranted either by the language or the scheme or purpose of U.P. Act No. 13 of 1972. On a plain and simple construction of Section 3(a)(1) of this Act, only that heir would be entitled to inherit the tenancy rights in respect of residential accommodation who was actually residing with the tenant and the heir would be one who is entitled under the personal law to inherit the rights of the deceased............\" 27. The question again came up for consideration before this Court in a much later decision in Ishwar Chand v. Additional District Magistrate (Civil Supply)/R.C.E.O., Kanpur Nagar & Another9. It was, again, a case where a grandson laid claim to the inheritance of the grandfather's tenancy, because he was living with him, whereas the tenant's son was not. The question that arose, therefore, was whether the grandson, who was living with the tenant in the residential building, was entitled to inherit as his heir, because the tenant's son was not normally residing with him. In Ishwar Chand (supra) is was held : \"6. The contention of the learned counsel for the petitioner is that after the death of the tenant, any of his heirs who normally resided with him at the time of his death is entitled to inherit the tenancy rights and where a person who is entitled to inherit the tenancy was not normally residing with the tenant at the time of his death, such other person who comes in the category of an heir under the law is entitled to Inherit the tenancy if he was residing with the tenant at the time of his death. The personal law will determine as to who is the person under the law to inherit the tenancy. Section 8 of the Hindu Succession Act. 1956 provides that the property of a male Hindu dying intestate shall devolve according to the provisions mentioned under the Act- (a) firstly, upon the heirs, being the relatives specified in class 1 of the Schedule ; (b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule ; (c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased ; and (d) lastly, if there is no agnate, then upon the cognates of the deceased. 7. Section 9 of the Act provides that among the heirs specified in the Schedule, those in class I shall take simultaneously and to the exclusion of all other heirs ; those in the first entry in class II shall be preferred to those in the second entry ; those in the second entry shall be preferred to those in the third entry ; and so on in succession. 8. The son has preference to succeed to the exclusion of grandson. The inheritance takes place on the death of the tenant. In case he is survived by four sons, such son shall inherit the tenancy who was residing with his father but in case the tenant dies leaving behind him the only son but he was not residing and shifted elsewhere but his grandson is living, he will not inherit the tenancy as for inheritance two conditions are required to be fulfilled ; firstly, that he inherits the rights of the deceased tenant to the property under the personal law and secondly, he was residing at the time of death of the tenant in such residential building............\" 28. It must be remarked that the decisions in Man Singh (supra) and Ishwar Chand (supra) and the earlier one in Om Prakash (supra) proceed on the principle that in the presence of various heirs of the deceased-tenant under the Act of 1956, tenancy would not go to an heir lower in order of preference, whether the heir immediately entitled to inherit, according to the order of preference, accepts the tenancy or not, or is otherwise not entitled under the Act of 1972. In no case, in the presence of an heir of a tenant higher in order of preference or class, an heir in a lower class or lower category of preference would take the tenancy. It is, thus, held that the petitioners would not inherit the tenancy of the late Sardar Sundar Singh during the lifetime of Sardar Kesar Singh and Sardar Balbir Singh, whether they claimed the tenancy or forsook it. 29. As a corollary to the submission that the petitioners have inherited the tenancy, learned Counsel for the petitioner has made another point, which depends upon a testamentary succession to the tenancy. The attention of the Court has been drawn to the fact that the late Sardar Sundar Singh had executed a will dated 04.07.2011, that is on record as Paper No. 170 before the Court of first instance, according to which, the testator left all his movable and immovable property to the wives of the petitioners. Learned Counsel for the petitioners has urged that this point was mooted before the Courts below, particularly the Court of Revision, where the learned Additional District Judge looked into the will dated 04.07.2011 propounded by the petitioners to claim tenancy. It is submitted by the learned Counsel that the learned Additional District Judge committed an error by accepting another and a later will dated 29.01.2013, said to be left by the deceased Sardar Sundar Singh, revoking his earlier will as one based on fraud and by the later device, bequeathing all his movable and immovable properties to his niece, Km. Harmeet Kaur, daughter of his brother Sardar Balbir Singh. Learned Counsel for the petitioners submits that the learned Additional District Judge committed an error in accepting the subsequent will, because the landlord could not have propounded the said will. He was neither the executor of the will nor its beneficiary. Km. Harmeet Kaur, the beneficiary of the will, never came forward to propound the will dated 19.01.2013 that derogated from the earlier will dated 04.07.2011 left in favour of the petitioners' wives. Learned Counsel for the petitioners submits that based on the will dated 04.07.2011, the petitioners would inherit the tenancy as testamentary heirs of the tenant, the late Sardar Sundar Singh. 30. There are many fallacies to this submission, the one most obvious being that the will of the year 2011 did not bequeath the tenancy to the petitioner, but to their wives. If the will of 2011 is to be accepted as a valid source of acquisition of tenancy rights, the tenancy would go to the petitioners' wives, and not the petitioners. But, that is not a reason that should, at all, weigh with this Court to dispose of this part of the submission urged on behalf of the petitioners. The reason is to be found in the principle of law that is attracted to the inheritance of tenancy rights under Section 3(a) of the Act of 1972. The principle appears to be that heirs entitled to inherit the tenancy referred to under Section 3 (a) are the heirs of the deceased tenant, according to intestate succession; not his testamentary heirs. While the testamentary heirs may be entitled to take all that has been bequeathed to them, according to the deceased-tenant's will, the tenancy would be governed not by the bequest, but by intestate succession, under the Act of 1956. The principle aforesaid, which does not appear to have been doubted or overturned, was laid down by this Court in Ratan Lal v. The Additional District Judge, Bulandshahr & Others10. In Ratan Lal (supra) it was held : \"20. This gives rise to the question about the scope of the word 'heirs' used in Section 3 of U.P. Act No. 13 of 1972. Counsel contended that the word 'heirs', would include testamentary heirs as well. The word 'heir' has several meanings. In some of the cases this word has been interpreted as including the testamentary heirs whereas in some other cases it has been held as confining its operation only to the heirs of the deceased to be determined in accordance with the personal law. The word 'heirs' does, I think, connote an idea of succession as well as an idea of consanguinity. In the light of the various provisions of the Act, it appears that the word 'heirs' in relation to a tenant should be construed as referring to the persons entitled to the property under the law of intestate succession applicable on the date when the testator dies. 21. Counsel for both the parties have referred to the various dictionary meanings in support of their respective contentions. It is not necessary to refer to those inasmuch as I have already said above that in the context in which the word 'heir' has been used, it is amply clear that this expression must be confined to the persons receiving the property if a tenant dies intestate. In Wealth-tax Commissioner, A.P. v. Courts of Wards, AIR 1977 SC 113, the Supreme Court has laid down the principle which would apply to such matters as follows: We think that it is not correct to give as wide a meaning as possible to terms used in a statute simply because the statute does not define an expression. The correct rule is that we have to endeavour to find out the exact sense in which the words have been used in a particular context. We are entitled to look at a statute as a whole and give an interpretation in consonance with the purpose of the statute and what logically follows from the terms used. We are to avoid obscure and absurd results.........\" 31. Thus, some for added reasons and others, for very different, this Court concurs in the conclusions that the learned Additional District Judge has reached, to wit, that the petitioners are not entitled to inherit the tenancy of Sardar Sundar Singh, either as his heirs intestate or testamentary, under the Act of 1972. A fortiori, this Court must also concur with the conclusion of the learned Additional District Judge that after the death of Sardar Sundar Singh, the shops in dispute have fallen vacant. 32. The other submission advanced on behalf of the learned Counsel for the petitioners based on the principle in Hazi Naseem to the effect that the application for declaration of vacancy, in regard to the shops in dispute being moved in the year 2017, it would be barred by limitation, inasmuch as the petitioners were carrying on business in the said shops since the year 1998, is also without substance. This is for the reason that there is precisely no evidence to indicate at what point of time the petitioners came to occupy the shops in dispute, either exclusively or together with Sardar Sundar Singh, to do business in their own right, as contrasted to their position as nephews of Sardar Sundar Singh, who would help him in one way or the other with his business, without any kind of right or occupation of their own. It has not been indicated as to when the electricity meters in the petitioners' name were installed, or other evidence to show the petitioners' occupation of the shops in dispute in their own right, exclusively or together with the late Sardar Sundar Singh. In the absence of a precise date, by the time at or about which the petitioners came to occupy the shops in their own right, exclusively or along with Sardar Sundar Singh to do their own business, it is very difficult to apply the bar of limitation of 12 years against the landlady, seeking a declaration of vacancy. 33. Still another submission that has been pressed in aid by learned Counsel for the petitioners to defend the validity of their possession as lawful tenants is the right of regularization of existing tenants under Section 14 of the Act of 1972. Section 14 is extracted below : \"Section 14 - Regularisation or occupation of existing tenants-Notwithstanding anything contained in this Act or any other law for the time being in force, any licensee (within the meaning of Section 2-A) or a tenant in occupation of a building with the consent of the landlord immediately before the commencement of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976, not being a person against whom any suit or proceeding for eviction is pending before any Court or authority on the date of such commencement shall be deemed to be an authorised licensee or tenant of such building.\" 34. A perusal of the provisions under Section 14 of the Act of 1972 makes it pellucid that in order to attract the creation of a valid tenancy by regularization under this provision of the Statute, the person in occupation of a building must be in occupation on the date of enforcement of the Act No. 28 of 1976, that is, before 05.07.1976 either as a licensee or as a tenant, with the consent of the landlord. There is absolutely no evidence on record to show that the petitioners were ever in occupation of the shops in dispute before 05.07.1976 or that they were in such occupation either as licensees or tenants and with the consent of the landlord. About this fact, there is an eloquent finding by the Revisional Court recorded in the impugned order, which reads : \"\u092a\u0941\u0928\u0930\u0940\u0915\u094d\u0937\u0923\u0915\u0930\u094d\u0924\u093e\u0917\u0923 \u092a\u094d\u0930\u0936\u094d\u0928\u0917\u0924 \u0926\u0941\u0915\u093e\u0928 \u092e\u0947\u0902 \u0915\u093f\u0938 \u0924\u093f\u0925\u093f \u0938\u0947 \u0915\u092c\u094d\u091c\u0947 \u092e\u0947\u0902 \u0939\u0948\u0902, \u0907\u0938 \u0924\u0925\u094d\u092f \u0915\u093e \u0909\u0932\u094d\u0932\u0947\u0916 \u0928 \u0924\u094b \u0905\u0935\u0930 \u0928\u094d\u092f\u093e\u092f\u093e\u0932\u092f \u0915\u0940 \u092a\u0924\u094d\u0930\u093e\u0935\u0932\u0940 \u092e\u0947\u0902 \u0915\u093f\u092f\u093e \u0917\u092f\u093e \u0939\u0948 \u0914\u0930 \u0928 \u0939\u0940 \u092a\u094d\u0930\u0936\u094d\u0928\u0917\u0924 \u092a\u0941\u0928\u0930\u0940\u0915\u094d\u0937\u0923 \u0915\u0940 \u092a\u0924\u094d\u0930\u093e\u0935\u0932\u0940 \u092e\u0947\u0902\u0964 \u0905\u0935\u0930 \u0928\u094d\u092f\u093e\u092f\u093e\u0932\u092f \u092e\u0947\u0902 \u0926\u093f\u090f \u0917\u090f \u092c\u092f\u093e\u0928 \u0926\u093f\u0928\u093e\u0902\u0915\u093f\u0924-16/01/2018 \u0915\u093e\u0917\u091c \u0938\u0902\u0916\u094d\u092f\u093e 10 \u092e\u0947\u0902 \u0930\u0902\u091c\u0940\u0924 \u0938\u093f\u0902\u0939 \u0926\u094d\u0935\u093e\u0930\u093e \u0905\u092a\u0928\u0947 \u092c\u092f\u093e\u0928 \u092e\u0947\u0902 \u092e\u093e\u0924\u094d\u0930 \u092f\u0939 \u0915\u0939\u093e \u0917\u092f\u093e \u0939\u0948 \u0915\u093f \u092e\u0941\u091d\u0947 \u0907\u0938 \u0935\u094d\u092f\u093e\u092a\u093e\u0930 \u092e\u0947\u0902 \u0932\u0917\u092d\u0917 45 (\u092a\u0948\u0902\u0924\u093e\u0932\u093f\u0938) \u0935\u0930\u094d\u0937 \u0939\u094b \u091a\u0941\u0915\u0947 \u0939\u0948\u0902\u0964 \u0907\u0938\u0940 \u092a\u094d\u0930\u0915\u093e\u0930 \u0917\u0941\u0930\u092e\u0940\u0924 \u0938\u093f\u0902\u0939 \u0926\u094d\u0935\u093e\u0930\u093e \u092c\u092f\u093e\u0928 \u0915\u093e\u0917\u091c \u0938\u0902\u0916\u094d\u092f\u093e 15 \u092e\u0947\u0902 \u0915\u0939\u093e \u0917\u092f\u093e \u0939\u0948 \u0915\u093f \u092e\u0941\u091d\u0947 \u0935\u094d\u092f\u093e\u092a\u093e\u0930 \u092e\u0947\u0902 30 (\u0924\u0940\u0938) \u0935\u0930\u094d\u0937 \u0939\u094b \u091a\u0941\u0915\u0947 \u0939\u0948\u0902\u0964 \u092a\u0924\u094d\u0930\u093e\u0935\u0932\u0940 \u092a\u0930 \u0909\u092a\u0932\u092c\u094d\u0927 \u0915\u093e\u0917\u091c \u0938\u0902\u0916\u094d\u092f\u093e 43\u0917, 44\u0917 \u0924\u0925\u093e 45\u0917 \u0906\u0926\u093f \u0938\u0947 \u092e\u093e\u0924\u094d\u0930 \u0907\u0924\u0928\u093e \u0938\u094d\u092a\u0937\u094d\u091f \u0939\u094b \u0930\u0939\u093e \u0939\u0948 \u0915\u093f \u0917\u0941\u0930\u092e\u0940\u0924 \u0938\u093f\u0902\u0939 \u0938\u0928 1984 \u0915\u0947 \u0926\u0902\u0917\u094b \u092e\u0947\u0902 \u092a\u094d\u0930\u092d\u093e\u0935\u093f\u0924 \u0939\u094b\u0928\u0947 \u0915\u0947 \u0915\u093e\u0930\u0923 \u0915\u094d\u0937\u0924\u093f\u092a\u0942\u0930\u094d\u0924\u093f \u092a\u094d\u0930\u093e\u092a\u094d\u0924 \u0915\u0930\u0928\u0947 \u0915\u0947 \u0905\u0927\u093f\u0915\u093e\u0930\u0940 \u092a\u093e\u090f \u0917\u090f \u0925\u0947\u0964 \u0930\u0902\u091c\u0940\u0924 \u0938\u093f\u0902\u0939 \u0915\u093e \u0928\u093e\u092e \u0909\u0915\u094d\u0924 \u092a\u094d\u0930\u092a\u0924\u094d\u0930\u094b\u0902 \u092e\u0947\u0902 \u0915\u0939\u0940\u0902 \u0928\u0939\u0940\u0902 \u0939\u0948\u0964 \u0907\u0938 \u092a\u094d\u0930\u0915\u093e\u0930 5 \u091c\u0941\u0932\u093e\u0908 1976 \u0915\u0947 \u092a\u0942\u0930\u094d\u0935 \u092a\u0941\u0928\u0930\u0940\u0915\u094d\u0937\u0923\u0915\u0930\u094d\u0924\u093e\u0917\u0923 \u0915\u093e \u0915\u092c\u094d\u091c\u093e \u0938\u093e\u092c\u093f\u0924 \u0928\u0939\u0940\u0902 \u0939\u0948\u0964 \u0910\u0938\u0940 \u0938\u094d\u0925\u093f\u0924\u093f \u092e\u0947\u0902 \u0905\u0935\u0930 \u0928\u094d\u092f\u093e\u092f\u093e\u0932\u092f \u0926\u094d\u0935\u093e\u0930\u093e \u092a\u0941\u0928\u0930\u0940\u0915\u094d\u0937\u0923\u0915\u0930\u094d\u0924\u093e\u0917\u0923 \u0915\u094b \u0927\u093e\u0930\u093e 14 \u092f\u09420\u092a\u09400 \u090f\u0915\u094d\u091f \u0928\u0902\u092c\u0930 13 \u0938\u0928 72 \u0915\u093e \u0932\u093e\u092d \u092a\u094d\u0930\u0926\u093e\u0928 \u0928 \u0915\u0930 \u0915\u094b\u0908 \u0924\u094d\u0930\u0941\u091f\u093f \u0915\u093e\u0930\u093f\u0924 \u0928\u0939\u0940\u0902 \u0915\u0940 \u0917\u0908 \u0939\u0948\u0964\" 35. There is indeed nothing on record to indicate that the petitioners were in occupation of the shops in dispute before 05.07.1976, either as licensees or tenants, with the landlord's consent. The findings of the Revisional Court, as above recorded, are well borne out from the evidence and there is no reason for this Court to take a different view, in exercise of our jurisdiction under Article 226 of the Constitution. This Court must also remark that the RC & EO has very validly taken note of the fact that there is not a solitary rent receipt placed on record to show that the petitioners ever paid rent for the shops in dispute to the respondent-landlady. This Court also finds that there is no material to show that at any stage in point of time, the petitioners paid rent to whoever was the landlord for the time being. Until his death, it was Sardar Sundar Singh alone who was the lawful and recorded tenant of the shops in dispute. His heirs entitled to inherit having not come forward to claim it, the finding of a vacancy must logically follow. If the petitioners' occupation at some point of time after Sardar Sundar Singh fell ill is to be taken note of, where they claim to carrying of business separately in the two shops, the finding of deemed vacancy is inescapable, as the petitioners are not members of Sardar Sundar Singh's family. 36. The impugned orders passed by the RC & EO and the learned Additional District Judge are flawless, both in law and equity - equity this Court says because after all, the petitioners never contracted a tenancy of the shops in dispute with the landlady or an earlier landlord. They have tried to attempt a backdoor entry to claim their uncle's tenancy, to which they are not entitled under the law. They have never paid rent to the respondent-landlady or any earlier landlord, which decisively tips the scale of equity against the petitioners. 37. In the result, this petition fails and stands dismissed with costs. The RC & EO is free to enforce the impugned order of release dated 14.12.2018 passed in favour of respondent no. 3. 38. Let this order be communicated to the RC & EO/Additional City Magistrate-VII, Kanpur Nagar through the District Magistrate, Kanpur Nagar by the Registrar (Compliance). Order Date :- September the 29th, 2021 Anoop / I. Batabyal",
        "114254342": "1 W.P.No.15591/2020 HIGH COURT OF MADHYA PRADESH BENCH AT INDORE Writ Petition No.15591/2020 Dharmendra Jatav Vs. State of M.P., and others --------------------------------------------------------------------------------------- Shri A.S.Garg, Sr. Advocate assisted by Shri Arpit Oswal, Advocate for the petitioner. Shri Ankit Premchandani, Panel Lawyer for the respondents No.1 to 4/State. Shri A.K.Sethi, Sr. Advocate assisted by Shri Manoj Manav, Advocate for the respondent No.5. --------------------------------------------------------------------------------------- WHETHER APPROVED FOR REPORTING;YES Law laid down: (1) The offending sale was made vide registered sale deed dated 01/03/1994. The lease was originally granted to Kishanlal in the year 1966-67 after coming into force of the Madhya Pradesh Land Revenue Code, 1959 (for short 'the Code') and after his death, the name of his heir Narayan Jatav was entered by way of succession vide entry No.40/93-94 on 30/12/1993. Bhumiswami right was recorded on 10/01/1994 in favour of Narayan Jatav the father of the present petitioner. The bar or prohibition as contained under sub-section 7(b) of section 165 of the Code is with reference to the date of transfer and not the date of grant of patta (2) Since the ownership of land covered under the Code vests in the State Government, the revenue authorities under the Code have exclusive jurisdiction in respect of matters enlisted in section 257 of the Code and cancellation or omitting the entry with due notice to the other side upon acquisition of knowledge of void transaction; in violation of section 165(7b) of the Code. (3) A transaction from its very inception being in violation of law is a nullity and, therefore, void ab initio. A declaration in that behalf is not required by a Court of law; whereas in contrast, a transaction which otherwise is good act in the eyes of law, unless; avoided is a voidable act, i.e., if a suit is filed for a declaration that a document is fraudulent and/or forged and fabricated and a party who alleges so is obliged to 2 W.P.No.15591/2020 prove it; seeking a declaration in that behalf in a Court of law. In other words, where legal effect of a document cannot be taken away without setting aside the same, it cannot be treated to be void but would obviously be voidable. (4) A void transaction is bad in law from its very inception. No declaration to that effect is required. Therefore, the question of limitation does not arise in that behalf. (5) Section 257(1)(f) of the Code cannot be construed providing for substitution of name in revenue record arising out of inter se competitive claims of two parties over a entry / claim viz., instead it applies to cancellation / omission of entry upon acquisition of knowledge of the offending sale in violation of section 165(7b) of the Code. (6) Section 111 of the Code provides jurisdiction of the civil Court to decide the dispute inter se between two parties relating to right of records, where the State Government is not a party. Correction of record due to void transaction is not competitive claim of two rival parties. (7) A landless person extended the benefit of grant of lease / patta by the State Government or the Collector loses his status as such, in the event he transfers the land in violation of section 165(7b) of the Code. Therefore, on the analogy of section 111(g)(2) of the Transfer of Property Act, such person becomes liable for initiation of action for determination of lease by forfeiture through notice by the lesser/State Government and the subject matter of sale of land is liable for restoration to the State Government with correction of entry and taking over the possession by due process of law. Writ petition stands disposed of Significant paragraphs: 8 to 16 Reserved on: 11/12/2020 ORDER (19/01/2021) Rohit Arya, J., The controversy involved in this writ petition under Article 226 / 227 of the Constitution of India revolves around the scope, limit and dimensions of the provision contained under section 165(7-b) of the Madhya Pradesh Land Revenue Code, 1959 (for short, 'the Code'). For ready reference the provision is quoted below: W.P.No.15591/2020 \"165. Rights of transfer.- (1) subject to the other provisions of this section and the provision of section 168 a bhumiswami may transfer any interest in his land. ... ... ... (7-b) Notwithstanding anything contained in sub-section (1), a person who holds land from the State Government or a person who holds land in bhumiswami rights under sub- section (3) of Section 158 or whom right to occupy land is granted by the State Government or the Collector as a Government lessee and who subsequently becomes bhumiswami of such land, shall not transfer such land without the permission of a Revenue Officer, not below the rank of a Collector, given for reasons to be recorded in writing.\" (Emphasis supplied) and collaterally section 158(3) of the Code. The relevant provision is quoted below: \"158. Bhumiswami. (1) Every person who at the time of coming into force of this Code, belongs to any of the following classes shall be called a bhumiswami and shall have all the rights and be subject to all the liabilities conferred or imposed upon a bhumiswami by or under this Code, namely ... ... ... (3) Every person- (i) who is holding land in bhumiswami right by virtue of a lease granted to him by the State Government or the Collector or the Allotment Officer on or before the commencement of the Madhya Pradesh Land Revenue Code (Amendment) Act, 1992 from the date of such commencement, and (ii) to whom land is allotted in bhumiswami right by the State Government or the Collector or the Allotment Officer after the commencement of the Madhya Pradesh Land Revenue Code (Amendment) Act, 1992 from the date of such allotment, shall be deemed to be a bhumiswami in respect of such land and shall be subject to all the rights and liabilities conferred and imposed upon a bhumiswami by or under this Code : Provided that no such person shall transfer such land within a period of ten years from the date of lease or allotment and thereafter may transfer such land with the permission obtained under sub-section (7-b) of section 165. Explanation.-In this section, the expression \"Ruler\" and \"Indian State\" shall have the same meanings as are assigned to these W.P.No.15591/2020 expressions in clauses (22) and (15) respectively by Article 366 of the Constitution of India.\" 2. Agricultural land falling in survey No.465/40 admeasuring 2.023 hectare village Khilchipur, tehsil Khilchipur, District Rajgarh was leased out / patta to late Kishanlal s/o Nathulal Jatav in the year 1966-67 (for short, 'agricultural land') by the State Government. After his demise, the name of his son Narayan Jatav was mutated in the revenue record vide entry No.40/93-94 dated 30/12/1993. The mutation record suggests that on 10/01/1994, bhumiswami rights were conferred upon him. Vide registered sale deed dated 01/03/1994; the agricultural land was transferred by Narayan Jatav in favour of Jai Prakash (respondent No.5). However, the statutory prior permission as contemplated under section 165(7-b) of the Code was not obtained from the Collector. Pursuant to the aforesaid sale, the name of respondent No.5 was recorded in the revenue record at sl.No.74 on 02/04/1994. The Collector, Rajgarh had issued an order on 13/01/2012 directing the competent revenue authorities to check and verify such transaction of transfer of agricultural lands without obtaining prior permission under section 165(7-b) of the Code. 3. Petitioner is heir / successor of Narayan Jatav. On 02/11/2012, he submitted a complaint before the Sub Divisional Officer that the mutation / entry dated 02/04/1994 in favour of respondent No.5 be cancelled as the sale deed dated 02/04/1994 was in violation of the provision contained under section 165(7-b) of the Code. Upon receipt of the complainant, the report of the Tehsildar was called. Thereafter, the Sub Divisional Officer after notice to respondent No.5 had passed an order on 07/08/2014 (Annexure P/3) cancelling the entry in revenue record at sl.No.74 dated 02/04/1994 for the reason that the sale of agricultural land vide registered sale deed dated 02/04/1994 since was without obtaining prior permission of the Collector as contemplated under section 165 (7-b) of the Code is null and void. Therefore, the W.P.No.15591/2020 consequential revenue entry is also liable to be cancelled. 4. The respondent No.5 preferred an appeal before the Collector under section 44 of the Code. The appeal was held to be not maintainable as the order passed by the respondent No.4 was not the original order vide order dated 24/12/2018 (Annexure P/2). The second appeal preferred by respondent No.5 before the Commissioner has been allowed vide order dated 09/09/2020 (Annexure P/1). The second appellate authority was of the view that the lease / patta was granted to late Kishanlal in the year 1966-67, therefore, the bar against transfer of land without permission of the revenue authority not below the rank of Collector incorporated by Act No.15 of 1980 shall have no application. This is the impugned order in this writ petition. 5. Shri A.S.Garg, learned senior counsel contends that the applicability of bar against transfer of land / agricultural land, the relevant date shall be the date of transfer and not the date of grant of patta / lease by Government to the lessee. The lease was granted in the year 1966-67 in favour of late Kishanlal and bhumiswami rights were conferred upon his heir Narayan Jatav on 30/12/1993. Therefore, the transfer of agricultural land in favour of respondent No.5 vide registered sale deed dated 01/03/1994 without obtaining prior permission from the Collector under section 165(7-b) of the Code is bad in law. Therefore, the second appellate authority has committed serious illegality by allowing the appeal. As such, the impugned order is not sustainable in the eyes of law. Further elaborating his submissions, learned senior counsel referring to sub-section (3) of section 158 of the Code contends that bhumiswami rights by virtue of lease / patta granted to Kishanlal in the year 1966-67 by State Government is covered under section 165(7-b) of the Code. Hence, the date of grant of patta / lease is irrelevant and has no bearing over the controversy since the sale deed dated 01/03/1994 is in contravention of mandatory provision contained under section 165(7-b) of the W.P.No.15591/2020 Code, the same was null and void. To bolster the submissions, he has relied upon two division Bench judgments passed by this Court in the cases of Mulayam Singh and others Vs. Budhawa Chamar and others, 2002(2) MPLJ 480 and Saroj Chand Vs. Premwati and others, Writ Appeal No.345/2020 decided on 11/052020 at Gwalior Bench. Learned senior counsel referring to the judgment of division Bench in the case of Budhuwa Chamar Vs. Board of Revenue, M.P., and others, 2002(1) MPLJ Note 2 contends that the transfer or alienation of leased land / patta by State Government even after acquisition bhumiswami rights shall be void in the absence of prior permission of the revenue authority or the Collector as provided for under section 165(7-b) of the Code. The same proposition was followed by another division Bench of this Court in the case of Savina Park Resorts and Tours Pvt., Ltd., Vs. State of M.P., and others, (2012) 2 MPLJ 363. Lastly, he submits that the claim for omission of entry made in favour of respondent No.5 in the revenue record was well within the jurisdiction of the Sub Divisional Officer and subject matter covered under clause (f) of sub-section (1) of section 257 of the Code; an exclusive jurisdiction of the revenue authority. With the aforesaid submissions, learned senior counsel prays that the impugned order deserves to be set aside. 6. Per contra, Shri A.K.Sethi, learned senior counsel for the respondent No.5 submits that the jurisdiction under Article 226 and 227 of the Constitution of India predominantly is an equitable jurisdiction. Therefore, a person seeking judicial intervention through this jurisdiction must come with clean hands. In the instant case, the petitioner is son of late Narayan Jatav. In the agreement to sell dated 30/12/1993 between Narayan Jatav and Jai Prakash (respondent No.5); the petitioner appeared and signed as a witness to the said agreement. Narayan Jatav being recorded bhumiswami of the agricultural land has executed a registered sale deed dated 01/03/1994 in favour of the respondent No.5 with clear stipulation thereunder that there was no bar for the said sale under section 165(7-b) of the Code. W.P.No.15591/2020 Based upon the aforesaid sale deed dated 01/03/1994, the land was recorded in the name of respondent No.5 by the revenue authorities as bhumiswami on 02/04/1994. Almost after 19 years on 02/11/2012, the petitioner has taken a somersault and complained against the sale seeking amendment in the revenue entry purportedly on the ground that the aforesaid sale deed executed by his father in favour of respondent No.5 was null and void for want of prior permission of the Collector as required under section 165(7-b) of the Code. Learned senior counsel further contends that the Sub Divisional Officer had no jurisdiction to amend or omit the entry recorded in favour of respondent No.5, otherwise than in an appeal against the entry. Hence, the order passed by the Sub Divisional Officer on 07/08/2014 was bad in law. The appeal preferred by petitioner could not have been dismissed by the Collector vide order dated 24/12/2018 as not maintainable purportedly on the ground that the impugned order is not the original order. According to the learned senior counsel, the Sub Divisional Officer had exercised the original jurisdiction while ordering to omit the entry. The appeal arising therefrom under section 44 of the Code ought to have been entertained by the Collector. That was not done. In the alternate, it is submitted that in any case, neither the complaint nor the appeal could have have been entertained by the Sub Divisional Officer after 19 years of the transaction to the grave prejudice of the respondent No.5 and that too at the instance of the petitioner who had full knowledge of the transaction. Moreso, there was no application for condonation of delay in view of section 47 of the Code providing period of limitation for preferring an appeal. Learned senior counsel also contends that the mutation / revenue entry recorded on 02/04/1994 in favour of respondent No.5 could not have been omitted, unless; the sale deed dated 01/03/1994 executed in favour of respondent No.5 was set aside by the Court of competent jurisdiction since by virtue of the registered sale deed, the rights transferred in favour of respondent No.5 are crystallized and protected under section 54 of the Transfer of Property Act. He submits that even otherwise, W.P.No.15591/2020 the dispute / claim in respect to the record of rights as raised by the petitioner could have been addressed only by the civil Court of competent jurisdiction as provided for under section 111 of the Code. To bolster his submissions relied upon the following judgments: (i) A bunch of writ appeal and writ petitions, lead case being The State of M.P., and another Vs. Chaitanya Realcon Pvt. Ltd., WA No.23/2017 decided on 22/04/2017; (ii) Full Bench judgment reported in 2010(45) MPLJ 178, Ranveer Singh Vs. State of M.P., 7. Heard. 8. The Madhya Pradesh Revenue Code is a social welfare legislation made for protection of ownership rights of landless persons, particularly; various classes of weaker section; a constitutional obligation under Article 39(b) and 46 of the Constitution of India. Economic empowerment of such class of persons in fact is a step to achieve economic democracy, as agricultural land gives economic status to the tiller. The prevention of their exploitation due to ignorance or indigency is a constitutional duty of the State under section 46 of the Constitution of India. Sub-section (7-b) of section 165 of the Code was inserted vide Act No.15 of 1980 which contemplates that a 'government lessee' who subsequently becomes bhumiswami of such land shall not transfer such land without the permission of a revenue officer not below the rank of Collector as quoted above. The said section is further amended vide amending Act No.17 of 1992 with effect from 28/10/1992 and a corresponding amendment is incorporated as section 158(3) quoted above. A joint reading of both the provisions do suggest that a 'bhumiswami' who holds the right by virtue of lease granted to him by the State Government or the Collector under section 158 of the Code shall not transfer the land so leased or allotted without prior permission of a revenue officer not below the rank of Collector. W.P.No.15591/2020 9. The primary question emerging from rival contentions advanced by learned senior counsels is to determine the character of sale dated 01/03/1994 in the eyes of law; void or voidable?. 10. The expressions \"void\" and \"voidable\" have been subject matter of consideration on innumerable occasions by Courts. Law is now well settled. A transaction from its very inception being in violation of law is a nullity and, therefore, void ab initio. As a matter of fact, a declaration in that behalf is not required by a Court of law; whereas in contrast, a transaction which otherwise is good act in the eyes of law, unless; avoided is a voidable act, i.e., if a suit is filed for a declaration that a document is fraudulent and/or forged and fabricated and a party who alleges so is obliged to prove it; seeking a declaration in that behalf in a Court of law. In other words, where legal effect of a document cannot be taken away without setting aside the same, it cannot be treated to be void but would obviously be voidable [Judgments of Hon'ble Supreme Court in the cases of Dhurandhar Prasad Singh Vs. Jai Prakash University and others, (2001) 6 SCC 534 relied upon. De Smith, Woolf and Jewell in their treatise Judicial Review of Administrative Action, fifth edition, paragraph 5-044, has summarised the concept of void and voidable as follows: \"Behind the simple dichotomy of void and voidable acts (invalid and valid until declared to be invalid) lurk terminological and conceptual problems of excruciating complexity. The problems arose from the premise that if an act, order or decision is ultra vires in the sense of outside jurisdiction, it was said to be invalid, or null and void. If it is intra vires it was, of course, valid. If it is flawed by an error perpetrated within the area of authority or jurisdiction, it was usually said to be voidable; that is, valid till set aside on appeal or in the past quashed by certiorari for error of law on the face of the record.\" W.P.No.15591/2020 In the instant case, the lease was originally granted to Kishanlal in the year 1966-67 after coming into force of the Code and after his death, the name of his heir Narayan Jatav was entered by way of succession vide entry No.40/93-94 on 30/12/1993. Bhumiswami right was recorded on 10/01/1994 in favour of Narayan Jatav the father of the present petitioner. The sale deed in favour of respondent No.5 was executed on 01/03/1994. In the considered opinion of this Court, the bar or prohibition as contained under sub-section 7(b) of section 165 of the Code is with reference to the date of transfer and not the date of grant of patta. The contention advanced to the contrary and as concluded by the Commissioner in the impugned order dated 09/09/2020 (Annexure P/1) is misconceived and misdirected. Hence, rejected. Therefore, the offending sale deed dated 01/03/1994 without prior permission of the Collector was void ab initio. The sale deed dated 01/03/1994 since has been held to be void for which no declaration in that behalf is required from a Court of law, the question of limitation as raised by learned senor counsel for the respondent No.5 is of no consequence and pales into insignificance. Hence, rejected. In the judgment reported in 2002(2) MPLJ 480 Mulayam Singh and another Vs. Budhawa Chamar and others; a division Bench in an authoritative pronouncement of law has ruled as under: \"It is not in dispute that no permission from the Collector was obtained and the sale was made without the permission of Collector. The respondent cannot transfer his land even though he is declared Bhumiswami, without the permission of the Collector. Transfer was made without such permission, so the appellants will not get any legal rights. In the circumstances, the Additional Collector has rightly held that the sale was in contravention of the provisions of section 165(7-B) of the Code and is void. Mutation effected on the basis of sale was set aside and the land was directed to be recorded in the name of the respondent No.1.\" The view of this Court in the matter of alienation of land without permission under section 165(7b) of the Code finds W.P.No.15591/2020 support from the judgment of the Hon'ble Supreme Court in the case of Keshabo and another Vs. State of M.P., and others, (1996) 7 SCC 765 and a division Bench of this Court in the case of Mulayam Singh and another (supra). At this stage it is appropriate to reiterate the legal connotation of word \"bhumiswami\" as perceived by a Full Bench of this Court in the case of Ramgopal Kanhaiyalal Vs. Chetu Batte AIR 1976 MP 160 and held as under: \"14. It must be remembered that a Bhumiswami has a title though he is not the \"Swami\" of the \"Bhumi\" which he holds, in the sense of absolute ownership of land vests in the State Government, yet, he is a Bhumiswami. He is not a mere lessee. His rights are higher and superior. They are akin to those of a proprietor in the sense that they are transferable and heritable, and he cannot be deprived of his possession, except by due process of law and under statutory provisions, and his rights cannot be curtailed except by legislation.\" as affirmed by Hon'ble Supreme Court in (2000) 3 SCC 668 Rohini Prasad and others Vs. Kasturchand and another & (2005) 10 SCC 124 Hukum Singh (Dead) by LR., and others Vs. State of M.P., as well as by a division Bench of this Court reported in 2012(2) MPLJ 363 Savina Park Resorts and Tours Pvt. Limited Vs. State of M.P., and others. Since, the ownership of land covered under the Code vests in the State Government. The revenue authorities under the Code have exclusive jurisdiction in respect of matters enlisted in section 257 of the Code and the jurisdiction of the civil Court is ousted in that behalf. The cancellation of an entry in the revenue record on a complaint or otherwise in relation to transfer of land without permission of the Collector under sub-section 7(b) of section 165 of the Code cannot be construed substitution of name in revenue record arising out of inter se competitive claims of two parties over a entry / claim. This exercise, therefore, has rightly been carried out by a revenue officer under section 257(1)(f) of the Code. Section 111 of the Code provides jurisdiction of the civil W.P.No.15591/2020 Court to decide a dispute inter se between two private parties relating to any right recorded in the record of rights, where the State government is not a party. This provision has no application in the facts and circumstances of the case. The Sub Divisional Officer on a complaint by the petitioner has cancelled / omitted the entry No.74 dated 02/04/1994 recorded in favour of respondent No.5 by order dated 07/08/2014 (Annexure P/3) on the premise that the sale in favour of respondent No.5 vide sale deed dated 01/03/1994 was contrary to section 165(7-b) of the Code and also bearing in mind the general directions issued by the Collector on 13/01/2012. The contention of learned senior counsel for the respondent No.5 is that unless; appeal was preferred against the entry made in revenue record on 02/04/1994 (supra), the Sub Divisional Officer had no jurisdiction to cancel or omit the entry vide order dated 07/08/2014 is held to be misconceived for the reason that the Sub Divisional Officer upon acquisition of knowledge of void transaction,viz., sale deed dated 01/03/1994 has cancelled / omitted the entry with due notice to the respondent No.5. Records of rights can always can be corrected if prohibited in law or polluted by a void act in the eyes of law. Consequently, there was no illegality in the order of the Sub Divisional Officer dated 07/08/2014 (Anneuxre P/3) amending / omitting the entry at sl.No.74 on 02/04/1994 made pursuant to the sale deed dated 01/03/1994 in favour of respondent No.5 while exercising the power under section 257(1)(f) of the Code. 11. Now the following two questions arise for consideration: (i) Whether on the facts and in the circumstances of the case, the name of petitioner should be continued in the revenue record?; and (ii) Whether, he is entitled for restoration of possession of the land in question? 12. The demeanour and conduct of the petitioner is relevant to answer these questions. The petitioner is a witness to the agreement to sell dated 30/12/1993 between Narayan Jatav and Jai Prakash (respondent No.5). The sale deed executed on W.P.No.15591/2020 01/03/1994 by Narayan Jatav in favour of respondent No.5 was well within the knowledge of the petitioner. Thereafter, in the year 2012, a complaint was made by the petitioner with an ulterior motive to achieve the collateral purpose for his own benefit. Nevertheless, the cacellation or omission of entry in favour of respondent No.5 based on void sale deed dated 01/03/1994 by the Sub Divisional Officer shall not enure benefit to the petitioner. 13. Though the provisions of Transfer of Property Act (for short, 'the T.P.Act\") under Chapter V are not applicable in absence of notification by the State Government in the official gazette to the contrary as provided under section 117 of the T.P. Act, however, principles underlying provisions of T.P. Act have been made applicable for agricultural leases on touchstone of justice, equity and good conscience. In particular, the provision as to the 'forfeiture' contained under section 111(g)(2) of T.P.Act has been so applied by various High Courts. The Madras High Court in the case of Umar Pulavar Vs. Dawood Rowther, AIR 1947 Mad. 68 has held as under: \"It is for the purpose of attenuating the rigour of the law as thus interpreted and applied in such decisions that Section 111(g) was amended in 1929 and it was made clear that even in the case of forfeiture by denial of the landlord's title a notice in writing determining the lease must be given. The principle so embodied in the section as a result of this amendment becomes, so to say, a principal of justice, equity and good conscience which must be held to govern even agricultural leases, though under Section 117 of the Act they are exempt from the operation of the chapter. To hold that with reference to agricultural leases previous notice determining the tenancy is not necessary is to ignore the policy of the Act as disclosed by the amendment which was intended to afford all tenants greater protection than what was afforded by the decisions which interpreted Section 111(g) as it originally stood. It is reasonably clear that if notice is necessary with reference to non-agricultural leases it is still more necessary in the case of agricultural leases where larger interests are at stake, generally speaking, and where in the absence of a proper notice to quit the right to the standing crops raised by the tenants might itself become a subject of dispute as between them and the landlord.\" Relied upon by Bombay High Court in the case of Tatya W.P.No.15591/2020 Savla And Ors. vs Yeshwant Kondiba And Ors., AIR 1951 Bom. 283 & Andhra Pradesh High Court in the case of Cheekati Kuriminaidu & Ors vs. Karri Padmanabham Bhukta and othrs, AIR 1964 And. Pra. 539. 14. A lease / patta was granted to late Kishanlal in the year 1966-67 for providing means of livelihood; a landless person for his economic empowerment through ploughing and cultivating the field. To ensure protection against exploitation due to ignorance or indigency, section 165(7-b) was inserted in the year 1980 with further amendment vide amending Act No.17 of 1992 with effect from 28/10/1992. Therefore, conscious transfer of land on 01/03/1994 by Narayan Jatav in favour of respondent No.5 to which petitioner is also party (witness for agreement to sell dated 30/12/1993) setting up title in a third person in violation of section 165(7-b) of the Code; renders the lease liable for determination by forfeiture, in view of sub-clause (2) of clause (g) of section 111 of the T.P.Act. For ready reference the said clause is quoted below: 111. Determination of lease. A lease of immovable property determines.- ... ... ... (g) by forfeiture:- ... ... ... (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; 15. In the obtaining facts and circumstances, the petitioner has lost the status of landless person. The technical objection / contention of the learned senior counsel for the petitioner is that the lis between the parties does not embrace such eventuality and after setting aside the impugned order, the consequences flowing therefrom shall enure benefit to the petitioner. The argument advanced is in despair and devoid of substance. The conduct and demeanour of the petitioner & obtaining facts and circumstances do attract the maxim; \"Nullus commodum capere ptest de injuria sua propria\" (No man can take advantage of his own wrong), it is one of the salient tenets of equity. Hence, the petitioner is not held entitled to secure the assistance of the Court of law for enjoying the fruit of his own W.P.No.15591/2020 wrong. The Hon'ble Supreme Court in the case of Ashok Kapil Vs. Sana Ullah (Dead) and others, (1996) 6 SCC 342 held in paragraphs 7 and 12 as under: \"7. If the crucial date is the date of allotment order, the structure was not a building as defined in the Act. But can the respondent be assisted by a court of law to take advantage of the mischief committed by him? The maxim \"\"Nullus commodum capere ptest de injuria sua propria\" (No man can take advantage of his own wrong) is one of the salient tenets of equity. Hence, in the normal course, the respondent cannot secure the assistance of a court of law for enjoying the fruit of his own wrong. 12. The upshot is, if the District Magistrate has commenced exercising jurisdiction under Section 16 of the U.P.Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, in respect of a building which answered the description given in the definition in Section 3(i), he would well be within his jurisdiction to proceed further notwithstanding the intervening development that the building became roofless. We are inclined to afford such a liberal interpretation to prevent a wrongdoer from taking advantage of his own wrong.\" The Hon'ble Supreme Court in the case of Eureka Forbes Limited Vs. Allahabad Bank and others, (2010) 6 SCC 193 has observed as under: \"66. The maxim \"Nullus commodum capere ptest de injuria sua propria\" has a clear mandate of law that, a person who by manipulation of a process frustrates the legal right of others, should not be permitted to take advantage of his wrong or manipulations. In the present case, Respondents 2 and 3 and the appellant have acted together while disposing off the hypothecated goods, and now, they cannot be permitted to turn back to argue, that since the goods have been sold, liability cannot be fastened upon Respondents 2 and 3 and in any case on the appellant. .....\" Therefore, in exercise of the equitable jurisdiction under Article 226 of the Constitution of India and regard being had to the concept of justice, equity and good conscience, it is considered apposite to direct the respondent / State to issue notice to the petitioner as against termination of lease drawing analogy under sub-clause (2) of clause (g) of section 111 of the T.P.Act. For restoration of possession, the State is also directed to initiate the W.P.No.15591/2020 action against respondent No.5 by due process of law. Let the entire exercise be completed within a period of six months from today. 16. Resultantly, the order passed by the Commissioner dated 09/09/2020 (Annexure P/1) is set aside. Writ petition stands allowed in part with the aforesaid directions. No order as to cost. (Rohit Arya) Judge 19-01-2021 Sh SEHAR HASEEN Digitally signed by SEHAR HASEEN DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH INDORE, ou=HIGH COURT OF MADHYA PRADESH BENCH INDORE, postalCode=452001, st=Madhya Pradesh, 2.5.4.20=900ec6fc757798eaeb3df7a32860bd3298415a4d1c2 d91436213f2568c8f27da, serialNumber=e7dbba955b262c04b8413251ce7fb6f0b7dba6 10c57f1559c08bf6c6f5dd40d4, cn=SEHAR HASEEN Date: 2021.01.19 18:34:34 +05'30'",
        "13024806": "1 REPORTABLE IN THE SUPREME COURT OF INDIA (CRIMINAL APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 329 OF 2021 [@ SPECIAL LEAVE PETITION (CRL.) NO. 2531 OF 2021] (ARISING OUT OF S.L.P. (CRL.) DIARY NO. 20318 OF 2020) APARNA BHAT & ORS. \u2026APPELLANT (S) VERSUS STATE OF MADHYA PRADESH & ANR. \u2026.RESPONDENT(S) JUDGEMENT S. RAVINDRA BHAT, J. A woman cannot be herself in the society of the present day, which is an exclusively masculine society, with laws framed by men and with a judicial system that judges feminine conduct from a masculine point of view.\u201d \u2013 Henrik Ibsen 1. Leave granted. The appellants are public-spirited individuals, concerned about the adverse precedent set by the imposition of certain bail conditions in a case involving a sexual offence against a woman; they impugn a part of the judgment of the Madhya Pradesh High Court1 that imposed these bail conditions. With the consent Signature Not Verified Digitally signed by of counsel for the parties, the appeal was heard finally. The appellants also filed an DEEPAK SINGH Date: 2021.03.18 16:24:26 IST Reason: 1 In Vikram v. The State of Madhya Pradeshin MCRC 23350/ 2020, dated 30.7.2020 application2, seeking directions that all the High Courts and trial Courts be directed to refrain from making observations and imposing conditions in rape and sexual assault cases, at any stage of judicial proceedings, that trivialize the trauma undergone by survivors and adversely affect their dignity. Certain intervenors also preferred an application in support of the appeal, seeking clear directions to all Courts to refrain from imposing \u201cirrelevant, freaky or illegal bail conditions\u201d. 2. Ibsen, the prescient nineteenth century author, made a powerful statement (quoted as the epigram at the beginning of this judgment); sadly, even today, in the twenty first century, after 70 years as a republic with the goal of equality for all, many courts seem to be oblivious of the problem. In a sense, this judgment is not as much about only the merits of the impugned conditions of the bail order, but is meant to address a wider canvas of (what appears to be) entrenched paternalistic and misogynistic attitudes that are regrettably reflected at times in judicial orders and judgments. 3. The brief facts of the case are that on 20.04.2020 at about 2.30 a.m., the accused-applicant, a neighbour of the complainant, entered her house and caught hold of the complainant\u2019s hand, and allegedly attempted to harass her sexually. Accordingly, Crime No. 133/2020 was registered at Police Station, Bhatpachlana, District-Ujjain for the offences punishable under sections 452, 354A3, 323 and 506 of the Indian Penal Code (IPC). The case was investigated and a charge sheet was filed. The accused filed an application under Section 438 of Code of Criminal Procedure, 1973 (hereafter \u201cCrPC\u201d) seeking pre-arrest bail. The High Court, by the impugned 2Crl. M.P No. 102226/2020 3Section 354A reads as follows: \u201c354A. Sexual harassment and punishment for sexual harassment.\u2014 (1) A man committing any of the following acts\u2014 (i) physical contact and advances involving unwelcome and explicit sexual overtures; or (ii) a demand or request for sexual favours; or (iii) showing pornography against the will of a woman; or (iv) making sexually coloured remarks, shall be guilty of the offence of sexual harassment. (2) Any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both. (3) Any man who commits the offence specified in clause (iv) of sub-section (1) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.\u201d order, even while granting bail to the applicant imposed the following condition which is under challenge in this petition. (i) \u201cThe applicant along with his wife shall visit the house of the complainant with Rakhi thread/ band on 3rd August, 2020 at 11:00 a.m. with a box of sweets and request the complainant -Sarda Bai to tie the Rakhi band to him with the promise to protect her to the best of his ability for all times to come. He shall also tender Rs. 11,000/- to the complainant as a customary ritual usually offered by the brothers to sisters on such occasion and shall also seek her blessings. The applicant shall also tender Rs. 5,000/- to the son of the complainant \u2013 Vishal for purchase of clothes and sweets. The applicant shall obtain photographs and receipts of payment made to the complainant and her son, and the same shall be filed through the counsel for placing the same on record of this case before this Registry. The aforesaid deposit of amount shall not influence the pending trial, but is only for enlargement of the applicant on bail.\u201d 4. The appellants submit that the expressions \u201cin the interest of justice\u201d, \u201csuch other conditions court considers necessary\u201d and \u201cas it may think fit\u201d as provided in the bare text of the Section 437(3)(c) as well as Section 438(2)(iv) of the CrPC, give discretion to the Courts to impose such other conditions as may be required in the facts of a particular case, but those conditions have to be in consonance with the other conditions in the provisions, the purpose of granting bail and no other consideration. 5. The appellants cite Kunal Kumar Tiwari v. State of Bihar4 and Sumit Mehta v. State (NCT of Delhi)5 and argue that this court\u2019s observations in those decisions must be followed by every court while considering and dealing with bail applications. They also rely on the observations made in para 18 of State of M.P v. Madanlal,6 and urge that in cases of sexual offences, the idea of compromise, especially in the form of marriage between the accused and the prosecutrix is abhorrent, and should not be considered a judicial remedy, as it would be antithetical to the woman\u2019s honour and dignity. Likewise, reliance was placed on Ramphal v. State of Haryana7, where the 4 (2018) 16 SCC 74 5 (2013) 15 SCC 570 6 (2015) 7 SCC 681 7Crl. A. No. 438/2011decided on 27.11.2019 court took note of the compromise between the survivor and accused, but found that such compromise is of no relevance when deciding on cases of rape and sexual assault. 6. The appellants brought to the notice of this Court, various decisions and orders where the observations made by the judges in offences against women including cases under the Protection of Children from Sexual Offences Act, 2012 (POCSO) were extraneous. The appellants submitted that the courts, in many cases, especially under the POCSO Act, granted bail on the plea that an agreement to marry had been reached between the accused and prosecutrix. Additionally, they also submitted that while adjudicating matters of sexual harassment and rape, judges have made shocking remarks on the character of the prosecutrix. 7. Reference is made to Ravi Jatav v. State of M.P8, where the High Court of Madhya Pradesh, while granting bail (to an accused of committing offences under Sections 376-D, 366, 506, 34 IPC) imposed conditions that the accused \u201cshall register himself as a Covid-19 Warrior\u201d and was to be assigned work of Covid-19 disaster management at the discretion of the District Magistrate. In Rakesh B. v. State of Karnataka9, the Karnataka High Court granted bail to an accused alleged to have committed offences under Sections 376, 420, 506 IPC and Section 66-B of the Information Technology Act, 2000 (\u201cIT Act\u201d), and made remarks on the survivor\u2019s conduct. The relevant extract is produced below: \u201cc) nothing is mentioned by the complainant as to why she went to her office at night, that is, at 11 PM; she has also not objected to consuming drinks with the petitioner and allowing him to stay with her till morning; the explanation offered by the complainant that after the perpetration of the act she was tired and fell asleep, is unbecoming of an Indian woman; that is not the way our women react when they are ravished;\u201d 8. The appellants submit that no observation/condition should be made in any judgment, or orders which reflects bias of the judge or affects the dignity of a woman 8 MCRC No. 13734/2020 order dated 19.05.2020 passed by Madhya Pradesh High Court. 9Crl. P. No. 2427/2020, order dated 22.06.2020 passed by High Court of Karnataka. or affects the conduct of the trial in a fair and unbiased manner. They highlight that the impugned order, while granting bail, imposed a condition that the applicant shall visit the house of the complainant. The appellants submit that this is unacceptable and no observation/condition should be made which permits the accused to meet/have access to the survivor and her family members. 9. The appellants also cite Mohan v. State10, where the Madras High Court had referred the case of rape of a minor to mediation and observed that the case was fit for attempting a compromise between the parties. Likewise, Samuvel v. Inspector of Police11is cited, where the High Court of Madras referred to mediation, a case of rape where the prosecutrix was a minor and had become a mother of a child as a consequence of rape, because the accused agreed to marry her. It is urged that no observation/condition should be made which initiates or encourages compromise that disparages and downgrades an otherwise heinous crime thus indicating that such offences are remediable by way of a compromise/ by marriage. 10. Sopikul Sk. @ Safikul Islam v. State,12 an order of the High Court of Calcutta in a POCSO case granting bail is cited; here, relief was given to the accused since the prosecutrix had attained majority and the accused intended to marry her. Further, in the case of Gyanaranjan Behera v. State of Odisha,13 the Orissa High Court in a POCSO case granted interim bail to the accused for the purpose of marrying the prosecutrix. In Suraj Kushwah v. State of M.P,14the Madhya Pradesh High Court granted temporary bail to the accused for a crime under sections 376 (2)(n), 506 IPC read with Sections 3(1) (W-II), 3(2)(V), 3(2)(v-a) of the SC/ST (Prevention of Atrocities) Act, 1989 for the purpose of solemnizing marriage with the prosecutrix. The appellants submit that in POCSO and rape cases, no observation/condition 10 M.P No. 2/2014 in Crl. A No. 402/2014 order dated 18.06.2015 11Crl. O.P. No. 1881/2015. 12 CRM No. 2961/2020 Order dated 16.04.2020 of the Calcutta High Court 13 BLAPL No. 2596/2020 Order dated 02.06.2020, passed by Orissa High Court. 14 CRA No. 3353/2020 Order dated 02.09.2020 passed by the Madhya Pradesh High Court should be made, which takes note of the fact that the survivor has attained majority and that the accused has offered to marry her. 11. Vikas Garg v. State of Haryana15, by the High Court of Punjab is cited, where the court granted bail to three persons accused of committing offences under Sections 376D, 376(2)(n), 376, 292, 120-B, 506 IPC and Section 67 of the IT Act, and made observations regarding the prosecutrix\u2019s \u201ccasual relationships\u201d,\u201cpromiscuous attitude\u201d, \u201cvoyeuristic mind\u201d, etc. The appellants submit that no observation/condition should be made which grants bail on the ground that the victim is of \u201cloose character\u201d or is \u201chabituated to sexual intercourse.\u201d 12. Counsel for the Intervenors submitted that under sections 437(2) and 438, the power to impose conditions have been expressed in very wide terms by using the phrase \u201cany condition.\u201d Recently, High Courts while granting bail under these sections have started imposing irrelevant conditions. The Intervenors have annexed around twenty-three orders in which such conditions for bail were imposed. They argue that the conditions that can be imposed under the law are clearly laid down by the Supreme Court in the case of Munish Bhasin v. State16 and reiterated in Parvez Noordin Lokhandwalla v. State of Maharashtra.17 Accordingly, it is clear that imposing conditions like rendering community service in COVID hospitals or in any other institution, plantation of trees, contributing to any particular charity relief fund, etc. is impermissible in law. The Intervenors further submit that the accused, during pendency of the trial are presumed innocent and their guilt is as yet to be adjudicated by the Court. Imposition of conditions like compulsive community service, etc. is violative of the right to equality and personal liberty, including procedure established by law in the Indian Constitution. 13. The Intervenors also submit that the Court while deciding a bail application, cannot assume the role of a social reformer or fund raiser for charities and impose 15Cr. M. No. 23962/2017, order dated 13.09.2017 passed by the Punjab and Haryana High Court 16(2009) 4 SCC 45 17(2020) 10 SCC 77 conditions which have no nexus with the offense or relevance with the object of the bail provisions. 14. It was submitted that in IA No. 102226/2020, the appellants have brought to the notice of this Court, several other instances in which similar directions have been made by High Courts and Trial Courts across the country. Such wide prevalence necessitates the urgent intervention of this Court to firstly, declare that such remarks are unacceptable and have the potential to cause grave harm to the prosecutrix and the society at large, secondly, reiterate that judicial orders have to conform to certain judicial standards, and thirdly, take necessary steps to ensure that this does not happen in the future. 15. It was further submitted that this Court should intervene and issue directions or guidelines on bail and anticipatory bail to ensure that courts impose only those conditions as are permissible in law. Further, this Court was urged to issue directions on gender sensitization of the bar and the bench, particularly with regard to judicial empathy for the prosecutrix. 16. The learned Attorney General, who had been issued notice in this matter, made his submissions in support of the appeal; he also filed a detailed note suggesting the steps that should be taken to sensitize all stakeholders, especially courts, while dealing with offences against women. Highlighting the observations made in Kunal Kumar (supra), Sumit Mehta (supra), State of Punjab v. Gurmit Singh18 and Sakshi v. State19, the learned Attorney General submitted that while relying upon the observations made in the above-mentioned cases, the court may highlight that in cases of crimes against women, the following additional considerations may be kept in mind: i. Bail conditions should not mandate or even permit contact between the accused and the victim. 18 (1996) 2 SCC 384 19 (2004) 5 SCC 518 ii. Bail conditions must seek to protect the complainant from any harassment by the accused. iii. Where considered necessary, the complainant/prosecutrix may be heard on whether there is any peculiar circumstance which may require additional conditions for her protection. iv. Wherever bail is granted, the complainant may immediately be informed that the accused has been granted bail. v. Bail conditions must be free from stereotypical or patriarchal notions on women and their place in society, and must strictly be in accordance with the requirements of the CrPC. vi. The Courts while adjudicating a case, should not suggest or entertain any notions (or encourage any step) towards compromises between the prosecutrix and the accused to get married, as it is beyond their powers and jurisdiction. 17. On gender equality and gender sensitization, the Attorney General argued that to achieve the goal of gender justice, it is imperative that judicial officers, judges, and members of the bar are made aware of gender prejudices that hinder justice. Accordingly, he submitted that the foremost aspect to facilitate a gender sensitive approach, is to train judges to exercise their discretion and avoid the use of gender- based stereotypes while deciding cases pertaining to sexual offences. Secondly, judges should have sensitivity to the concerns of the survivor of sexual offences. 18. Reliance was placed on the Bangkok General Guidance for Judges on Applying a Gender Perspective in South East Asia, by the International Commission of Jurists. It was pointed out that the following stereotypes are often encountered in the course of judicial decision-making and should be avoided: - i. Women are physically weak; ii. Women cannot make decisions on their own; iii. Men are the head of the household and must make all the decisions related to family; iv. Women should be submissive and obedient; v. Good women are sexually chaste; vi. Every woman wants to be a mother; vii. Women should be the ones in charge of their children; viii. Being alone at night or wearing certain clothes make women responsible for being attacked; ix. Women are emotional and often overreact or dramatize hence it is necessary to corroborate their testimony; x. Testimonial evidence provided by women who are sexually active may be suspected when assessing \u201cconsent\u201d in sexual offence cases; and xi. Lack of evidence of physical harm in sexual offense case means consent was given. 19. The Attorney General submitted that training for gender sensitization for judges at all levels of the judiciary should mandatorily be conducted at regular intervals by the National Judicial Academy and State Judicial Academies. He emphasized that any directions towards gender sensitization should include judges of all levels of the judiciary. Further, the counsel urged that courses on gender sensitization should be included in the curriculum of law schools, and the All-India Bar Exam should include questions on gender sensitization as well. In addition to this, he recommended that a detailed curriculum may be prepared with the help of subject matter experts by each High Court, to be a part of the syllabus for the Judicial Services Exams and training for inducted judges. Nature of the beast20: the problem 20. Women often experience obstacles in gaining access to mechanisms of redress, including legal aid, counselling services and shelters. They are re-victimized and exposed to further risk of violence through the denial of redress in the context of informal trials or negotiations between families and community leaders. The payment of financial compensation by the perpetrator or his family for acts of violence against women, in lieu of legal remedies, was a recurrent concern vis-\u00e0-vis the formal and informal justice systems. Violence against women in India is systematic and occurs in 20 A phrase that means the traits inherent to a thing or situation, especially a negative or difficult one (See https://idioms.thefreedictionary.com/the+nature+of+the+beast) the public and private spheres. It is underpinned by the persistence of patriarchal social norms and inter- and intra-gender hierarchies. Women are discriminated against and subordinated not only on the basis of sex, but on other grounds too, such as caste, class, ability, sexual orientation, tradition and other realities.21 21. Gender violence is most often unseen and is shrouded in a culture of silence. The causes and factors of violence against women include entrenched unequal power equations between men and women that foster violence and its acceptability, aggravated by cultural and social norms, economic dependence, poverty and alcohol consumption, etc. In India, the culprits are often known to the woman; the social and economic \"costs\" of reporting such crimes are high. General economic dependence on family and fear of social ostracization act as significant disincentives for women to report any kind of sexual violence, abuse or abhorrent behaviour. Therefore, the actual incidence of violence against women in India is probably much higher than the data suggests, and women may continue to face hostility and have to remain in environments where they are subject to violence. This silence needs to be broken. In doing so, men, perhaps more than women have a duty and role to play in averting and combating violence against women. 22. Unlike many other victims of interpersonal crimes such as theft, robbery or muggings, survivors of sexual assault are vulnerable to being blamed for their attack, and thus victim-blaming (overtly or in more subtle forms) in sexual assault cases has been the focus of several writings. Myths and stereotypes \u201cunderlie and fuel sexual violence against women and inform negative societal reactions\u201d.22 Joanne Conaghan points out pertinently that \u201cremoving the doctrinal debris of a legally instituted gendered hierarchical order does not necessarily get rid of deeply ingrained social 21Report of the Special Rapporteur on Violence against Women, its Causes and Consequences, on her Mission to India (22 April to 1 May, 2013) A/HRC/26/38/Add.1 (accessible at www.ohchr.org \u203a Documents \u203a A-HRC-26-38-Add1_en) 22 Shannon Sampert, \"Let Me Tell You a Story: English-Canadian Newspapers and Sexual Assault Myths\" (2010) 22:2 Canadian Journal of Women and the Law 301 at 304; also Janice Du Mont, and Deborah Parmis; \"Judging Women: The Pernicious Effects of Rape Mythology\u201d (1999) 19:1-2 Canadian Woman Studies 102 at 102 and cultural attitudes which law has long endorsed and which continue to infuse the criminal justice process, albeit in more covert, less accessible forms.\u201d23 23. Sexual violence is varied in degree. At the highest (or, rather most aggravated) level, is rape with or without attendant violence. However, there are a substantial number of incidents which fall within the rubric of sexual violence, that amount to offences under various penal enactments. These outlaw behaviours such as stalking, eve-teasing, shades of verbal and physical assault, and harassment. Social attitudes typically characterize this latter category of crimes as \u201cminor\u201d offences. Such \u201cminor\u201d crimes are, regrettably not only trivialised or normalized, rather they are even romanticized and therefore, invigorated in popular lore such as cinema. These attitudes \u2013 which indulgently view the crime through prisms such as \u201cboys will be boys\u201d and condone them, nevertheless have a lasting and pernicious effect on the survivors. 24. The United Nations Organisation has defined \u201cviolence against women\u201d as \u201cany act of gender based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life.\u201d24 The effect of offensive behaviour against women, which laws criminalize- 23 Joanne Conaghan, Law and Gender (Oxford: Oxford University Press, 2013) at 113 24The Declaration on the Elimination of Violence Against Women (also \u2018DEVAW). Articles 1 and 2 read as follows: \u201cArticle One: For the purposes of this Declaration, the term \u201cviolence against women\u201d means any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life. Article Two: Violence against women shall be understood to encompass, but not be limited to, the following: (a) Physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry-related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence and violence related to exploitation; (b) Physical, sexual and psychological violence occurring within the general community, including rape, sexual abuse, sexual harassment and intimidation at work, in educational institutions and elsewhere, trafficking in women and forced prostitution; (c) Physical, sexual and psychological violence perpetrated or condoned by the State, wherever it occurs.\u201d physical, verbal, or other acts which threaten or give them acute discomfort, undermining their dignity, self-worth and respect, is to silence or subdue the survivor. 25. In The Standard of Social Justice as a Research Process 25 two scholars of psychology made a strong indictment of the (contextually, Canadian) criminal justice process: \u201cThe more general indictment of the current criminal justice process is that the law and legal doctrines concerning sexual assault have acted as the principle [sic] systemic mechanisms for invalidating the experiences of women and children. Given this state of affairs, the traditional view of the legal system as neutral, objective and gender- blind is not defensible. Since the system is ineffective in protecting the rights of women and children, it is necessary to re-examine the existing doctrines which reflect the cultural and social limitations that have preserved dominant male interests at the expense of women and children.\u201d Previous rulings 26. In Kunal Kumar Tiwari v. State of Bihar (supra), this court while dealing with Section 437(3)(c), Cr. PC (general conditions of bail) observed as follows: \u201c9. There is no dispute that Sub-clause (c) of Section 437(3) allows Courts to impose such conditions in the interest of justice. We are aware that palpably such wordings are capable of accepting broader meaning. But such conditions cannot be arbitrary, fanciful or extend beyond the ends of the provision. The phrase 'interest of justice' as used under the Sub-clause (c) of Section 437(3) means \"good administration of justice\" or \"advancing the trial process\" and inclusion of broader meaning should be shunned because of purposive interpretation.\u201d 27. In Sumit Mehta v. State (NCT of Delhi) (supra) this court, with respect to the conditions that can be imposed validly under section 438(2) of the CrPC, observed that: \u201c11. While exercising power under Section 438 of the Code, the Court is duty bound to strike a balance between the individual's right to 25(1997), 38 Can. Psychology 91, K. E. Renner, C. Alksnis and L. Park at p. 100 personal freedom and the right of investigation of the police. For the same, while granting relief Under Section 438(1), appropriate conditions can be imposed Under Section 438(2) so as to ensure an uninterrupted investigation. The object of putting such conditions should be to avoid the possibility of the person hampering the investigation. Thus, any condition, which has no reference to the fairness or propriety of the investigation or trial, cannot be countenanced as permissible under the law. So, the discretion of the Court while imposing conditions must be exercised with utmost restraint.\u201d 28. It was urged that the observations made in Kunal Kumar and Sumit Mehta ought to be followed while imposing bail conditions. The appellants relying upon the observations made in para 18 of State of M.P v. Madanlal,26 submit that in cases of sexual offences, the concept of compromise, especially in the form of marriage between the accused and the prosecutrix shall not be thought of, as any such attempt would be offensive to the woman\u2019s dignity. \u201c18. \u2026We would like to clearly state that in a case of rape or attempt of rape, the conception of compromise under no circumstances can really be thought of. These are crimes against the body of a woman which is her own temple. These are offences which suffocate the breath of life and sully the reputation. And reputation, needless to emphasise, is the richest jewel one can conceive of in life. No one would allow it to be extinguished. When a human frame is defiled, the \u201cpurest treasure\u201d, is lost. Dignity of a woman is a part of her non- perishable and immortal self and no one should ever think of painting it in clay. There cannot be a compromise or settlement as it would be against her honour which matters the most. It is sacrosanct. Sometimes solace is given that the perpetrator of the crime has acceded to enter into wedlock with her which is nothing but putting pressure in an adroit manner; and we say with emphasis that the Courts are to remain absolutely away from this subterfuge to adopt a soft approach to the case, for any kind of liberal approach has to be put in the compartment of spectacular error. Or to put it differently, it would be in the realm of a sanctuary of error.\u201d 26 (2015) 7 SCC 681 29. The decision in Ramphal v. State of Haryana27 by order dated 27.11.2019, took note of the compromise between the survivor and accused persons but found that such compromise is of no relevance when deciding on rape and cases of sexual assault. \u201cIt is brought to our notice that during the pendency of the appeals, both the appellants have paid Rs. 1.5 lakhs each in favor of the prosecutrix and she has accepted the same willingly for getting the matter compromised. However, it is imperative to emphasize that we do not accept such compromise in matters relating to the offence of rape and similar cases of sexual assault. Hence, the aforesaid compromise is of no relevance in deciding this matter. On merits, we do not find any ground to interfere in as much as the evidence of the prosecutrix is coupled with the medical evidence which clearly proves that the offence of rape has been committed. Therefore, the Trial Court and the High Court have rightly convicted the accused/appellants.\u201d 30. Empirically, the statistics regarding certain kinds of crimes against women have not shown any significant decline. In states and union territories, 32033 rape cases (under Section 376 IPC) were registered in 2019; 4038 cases of attempt to rape were registered the same year (under Section 376 read with Section 511, IPC). As many as 88,387 cases under Section 354 IPC were registered the same year, whereas 6939 cases were registered under Section 509 (outraging the modesty of a woman) in 2019. In all, a total of 4, 05,861 crimes against women were reported in 2019 (as against 359849 in 2017 and 378236 in 2018). The statistic for a relatively new species of offensive activities, cybercrimes that are women-centric, such as Transmitting of Sexually Explicit Material (Sec. 67A/67B, Information Technology Act), Blackmailing Defamation/Morphing/creating Fake Profile etc) registered in 2019, were 1645. POCSO offences, where girl children were victims, reported in 2019 were 46,005.28 The role of the courts and law enforcement agencies as neutral authorities, under a duty to ensure fairness 27Crl. A. No. 438/2011 28https://ncrb.gov.in/sites/default/files/CII%202019%20Volume%201.pdf 31. The role of all courts is to make sure that the survivor can rely on their impartiality and neutrality, at every stage in a criminal proceeding, where she is the survivor and an aggrieved party. Even an indirect undermining of this responsibility cast upon the court, by permitting discursive formations on behalf of the accused, that seek to diminish his agency, or underplay his role as an active participant (or perpetrator) of the crime, could in many cases, shake the confidence of the rape survivor (or accuser of the crime) in the impartiality of the court. The current attitude regarding crimes against women typically is that \u201cgrave\u201d offences like rape are not tolerable and offenders must be punished. This, however, only takes into consideration rape and other serious forms of gender-based physical violence. The challenges Indian women face are formidable: they include a misogynistic society with entrenched cultural values and beliefs, bias (often sub-conscious) about the stereotypical role of women, social and political structures that are heavily male- centric, most often legal enforcement structures that either cannot cope with, or are unwilling to take strict and timely measures. Therefore, reinforcement of this stereotype, in court utterances or orders, through considerations which are extraneous to the case, would impact fairness. 32. Academic writings highlight that a judgment at all levels has a number of distinct audiences, each of which engages with it in a different way. The parties to the case and their counsel will be interested in how the judge resolves their specific dispute - what the law gives to or requires of them. At the same time, in a legal system where judgments of courts set precedents, and in particular within a common law system, judgments have significance beyond their authoritative resolution of a specific dispute\u2014particularly in the Supreme Court. Thus, the judge is not only communicating to the parties their rights and liabilities in the context of the specific dispute being litigated; the judge is also addressing the broader legal community\u2014 other lawyers, judges, legal academics, law students\u2014and indeed the public at large.29 33. Using rakhi tying as a condition for bail, transforms a molester into a brother, by a judicial mandate. This is wholly unacceptable, and has the effect of diluting and eroding the offence of sexual harassment. The act perpetrated on the survivor constitutes an offence in law, and is not a minor transgression that can be remedied by way of an apology, rendering community service, tying a rakhi or presenting a gift to the survivor, or even promising to marry her, as the case may be. The law criminalizes outraging the modesty of a woman. Granting bail, subject to such conditions, renders the court susceptible to the charge of re-negotiating and mediating justice between confronting parties in a criminal offence and perpetuating gender stereotypes. 34. The Inter-American Commission on Human Rights has noted that judicial stereotyping \u201cis a common and pernicious barrier to justice, particularly for women victims and survivors of violence. Such stereotyping causes judges to reach a view about cases based on preconceived beliefs, rather than relevant facts and actual enquiry.\u201d30 Furthering of rape myths and stereotypes by the judiciary, limits the emancipatory potential of the law. 35. \u2018Judicial stereotyping\u2019 refers to the practice of judges ascribing to an individual specific attributes, characteristics or roles by reason only of her or his membership in a particular social group (e.g. women). It is used, also, to refer to the practice of judges perpetuating harmful stereotypes through their failure to challenge them, for example by lower courts or parties to legal proceedings.31 Stereotyping 29Erica Rackley, The Art and Craft of Writing Judgements in Hunter, Rosemary and McGlynn, Clare and Rackley, Erika, eds. FEMINIST JUDGMENTS: FROM THEORY TO PRACTICE, Hart Publishing, Oxford. 30 Inter-American Commission on Human Rights, Access to Justice for Women Victims of Sexual Violence: Education and Health, OEA/Ser.L/V/II. Doc. 65 (2011) ; Simone Cusack, Eliminating Judicial Stereotyping, Paper submitted to the Office of the High Commissioner for Human Rights (2014). 31 Simone Cusack, Eliminating Judicial Stereotyping, Paper submitted to the Office of the High Commissioner for Human Rights (2014), p. 2. excludes any individualized consideration of, or investigation into, a person\u2019s actual circumstances and their needs or abilities.32 36. There have been notable rulings by the CEDAW33 Committee in this regard. In V.K. v. Bulgaria34, the Committee observed that: \u2018stereotyping affects women\u2019s right to a fair trial and that the judiciary must be careful not to create inflexible standards based on preconceived notions of what constitutes domestic or gender-based violence\u2019. 37. In Karen Tayag Vertido v. The Philippines35, the CEDAW Committee stressed that court should not create \u201cinflexible standards\u201d of what women should be or have done, when confronted with a situation of rape. 38. Judges can play a significant role in ridding the justice system of harmful stereotypes. They have an important responsibility to base their decisions on law and facts in evidence, and not engage in gender stereotyping. This requires judges to identify gender stereotyping, and identify how the application, enforcement or perpetuation of these stereotypes discriminates against women or denies them equal access to justice. Stereotyping might compromise the impartiality of a judge\u2019s decision and affect his or her views about witness credibility or the culpability of the accused person.36As a judge of the Canadian Supreme Court remarked: \u201cMyths and stereotypes are a form of bias because they impair the individual judge\u2019s ability to assess the facts in a particular case in an open-minded fashion. In fact, judging based on myths and stereotypes is entirely incompatible with keeping an open mind, because myths 32Supra, p. 17. 33The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), was adopted in 1979 by the UN General Assembly; it is sometimes described as an international bill of rights for women. The CEDAW Committee is set up under Article 17 of CEDAW. 34V.K. v. Bulgaria, Communication No. 20/2008, UN Doc. CEDAW/C/49/D/20/2008 (2011) (CEDAW) 35Karen Tayag Vertido v. The Philippines, Communication No. 18/2008, UN Doc. CEDAW/C/46/D/18/2008 (2010) (CEDAW), para. 8.4. 36 Simone Cusack, Eliminating Judicial Stereotyping, Paper submitted to the Office of the High Commissioner for Human Rights (2014), p. 22. and stereotypes are based on irrational predisposition and generalization, rather than fact.\u201d37 39. The stereotype of the ideal sexual assault victim disqualifies several accounts of lived experiences of sexual assault. Rape myths38 undermine the credibility of those women who are seen to deviate too far from stereotyped notions of chastity, resistance to rape, having visible physical injuries, behaving a certain way, reporting the offence immediately, etc. In the words of the Supreme Court of Canada, in R v. Seaboyer,39 \u201cThe woman who comes to the attention of the authorities has her victimization measured against the current rape mythologies, i.e., who she should be in order to be recognized as having been, in the eyes of the law, raped; who her attacker must be in order to be recognized, in the eyes of the law, as a potential rapist; and how injured she must be in order to be believed.\u201d 40. The Bangalore Principles of Judicial Conduct, 2002, were from a meeting of Chief Justices of Asian and African countries, and endorsed by the UN Commission on Human Rights, the ECOSOC and the Commission on Crime Prevention and Criminal Justice. The Bangalore Principles provide that: \u201c2.4 A judge shall not knowingly, while a proceeding is before, or could come before, the judge, make any comment that might reasonably be expected to affect the outcome of such proceeding or impair the manifest fairness of the process. Nor shall the judge make any comment in public or otherwise that might affect the fair trial of any person or issue. ******** 5.1 A judge shall be aware of, and understand, diversity in society and differences arising from various sources, including but not limited to race, colour, sex, religion, national origin, caste, disability, age, 37 The Honourable Madame Justice Claire L\u2019Heureux-Dub\u00e9, \u2018Beyond the Myths: Equality, Impartiality, and Justice\u2019 (2001) 10(1) Journal of Social Distress and the Homeless 87, 88. 38 Explained in R. v. Osolin, [1993] 4 S.C.R. 595 (a Canadian case) as opinions improperly forming the background for considering evidentiary issues in sexual assault trials. These include the false concepts that: women cannot be raped against their will; only \u201cbad girls\u201d are raped; anyone not clearly of \u201cgood character\u201d is more likely to have consented. 39R v. Seaboyer, [1991] 2 S.C.R. 577, 650 (L\u2019Heureux-Dub\u00e9 & Gonthier JJ, dissenting in part) (Canada, Supreme Court). marital status, sexual orientation, social and economic status and other like causes (\"irrelevant grounds\"). 5.2 A judge shall not, in the performance of judicial duties, by words or conduct, manifest bias or prejudice towards any person or group on irrelevant grounds.\u201d 41. This court held, in State of Punjab v. Gurmit Singh & Ors.40 that: \u201cThe trial court not only erroneously disbelieved the prosecutrix, but quite uncharitably and unjustifiably even characterised her as a girl \u201cof loose morals\u201d or \u201csuch type of a girl\u201d. \u2026 We must express our strong disapproval of the approach of the trial court and its casting a stigma on the character of the prosecutrix. The observations lack sobriety expected of a judge. \u2026 The courts are expected to use self- restraint while recording such findings which have larger repercussions so far as the future of the victim of the sex crime is concerned and even wider implications on the society as a whole \u2013 where the victim of crime is discouraged \u2013 the criminal encouraged and in turn crime gets rewarded!\u2019 ***** \u201cLanguage is 'a medium of social action' not 'merely a vehicle of communication' and the written judicial opinion is the primary, if not the sole, medium in which judges within our judicial system execute language.\u201d41 ***** \u2026the text of judicial decisions and opinions constitutes the law by which our common law system abides and the basis on which judges, lawyers, and citizens make reasoned legal judgments about future action.\u201d42 42. This Court therefore holds that the use of reasoning/language which diminishes the offence and tends to trivialize the survivor, is especially to be avoided under all circumstances. Thus, the following conduct, actions or situations are hereby deemed irrelevant, e.g. - to say that the survivor had in the past consented to such or similar acts or that she behaved promiscuously, or by her acts or clothing, provoked the alleged action of the accused, that she behaved in a manner unbecoming of chaste or 40State of Punjab v. Gurmit Singh & Ors., 1996 SCC (2) 384. 41 Rachael K. Hinkle et al., A Positive Theory and Empirical Analysis of Strategic Word Choice in District Court Opinions, 4 J. OF LEGAL ANALYSIS 407, 408 (2012). 42Ibid, at p. 409. \u201cIndian\u201d women, or that she had called upon the situation by her behavior, etc. These instances are only illustrations of an attitude which should never enter judicial verdicts or orders or be considered relevant while making a judicial decision; they cannot be reasons for granting bail or other such relief. Similarly, imposing conditions that implicitly tend to condone or diminish the harm caused by the accused and have the effect of potentially exposing the survivor to secondary trauma, such as mandating mediation processes in non-compoundable offences, mandating as part of bail conditions, community service (in a manner of speaking with the so-called reformative approach towards the perpetrator of sexual offence) or requiring tendering of apology once or repeatedly, or in any manner getting or being in touch with the survivor, is especially forbidden. The law does not permit or countenance such conduct, where the survivor can potentially be traumatized many times over or be led into some kind of non-voluntary acceptance, or be compelled by the circumstances to accept and condone behavior what is a serious offence. 43. The instances spelt out in the present judgment are only illustrations; the idea is that the greatest extent of sensitivity is to be displayed in the judicial approach, language and reasoning adopted by the judge. Even a solitary instance of such order or utterance in court, reflects adversely on the entire judicial system of the country, undermining the guarantee to fair justice to all, and especially to victims of sexual violence (of any kind from the most aggravated to the so-called minor offences). 44. Having regard to the foregoing discussion, it is hereby directed that henceforth: (a) Bail conditions should not mandate, require or permit contact between the accused and the victim. Such conditions should seek to protect the complainant from any further harassment by the accused; (b) Where circumstances exist for the court to believe that there might be a potential threat of harassment of the victim, or upon apprehension expressed, after calling for reports from the police, the nature of protection shall be separately considered and appropriate order made, in addition to a direction to the accused not to make any contact with the victim; (c) In all cases where bail is granted, the complainant should immediately be informed that the accused has been granted bail and copy of the bail order made over to him/her within two days; (d) Bail conditions and orders should avoid reflecting stereotypical or patriarchal notions about women and their place in society, and must strictly be in accordance with the requirements of the Cr. PC. In other words, discussion about the dress, behavior, or past \u201cconduct\u201d or \u201cmorals\u201d of the prosecutrix, should not enter the verdict granting bail; (e) The courts while adjudicating cases involving gender related crimes, should not suggest or entertain any notions (or encourage any steps) towards compromises between the prosecutrix and the accused to get married, suggest or mandate mediation between the accused and the survivor, or any form of compromise as it is beyond their powers and jurisdiction; (f) Sensitivity should be displayed at all times by judges, who should ensure that there is no traumatization of the prosecutrix, during the proceedings, or anything said during the arguments, and (g) Judges especially should not use any words, spoken or written, that would undermine or shake the confidence of the survivor in the fairness or impartiality of the court. 45. Further, courts should desist from expressing any stereotype opinion, in words spoken during proceedings, or in the course of a judicial order, to the effect that (i) women are physically weak and need protection; (ii) women are incapable of or cannot take decisions on their own; (iii) men are the \u201chead\u201d of the household and should take all the decisions relating to family; (iv) women should be submissive and obedient according to our culture; (v) \u201cgood\u201d women are sexually chaste; (vi) motherhood is the duty and role of every woman, and assumptions to the effect that she wants to be a mother; (vii) women should be the ones in charge of their children, their upbringing and care; (viii) being alone at night or wearing certain clothes make women responsible for being attacked; (ix) a woman consuming alcohol, smoking, etc. may justify unwelcome advances by men or \u201chas asked for it\u201d; (x) women are emotional and often overreact or dramatize events, hence it is necessary to corroborate their testimony; (xi) testimonial evidence provided by women who are sexually active may be suspected when assessing \u201cconsent\u201d in sexual offence cases; and (xii) lack of evidence of physical harm in sexual offence case leads to an inference of consent by the woman. 46. As far as the training and sensitization of judges and lawyers, including public prosecutors goes, this court hereby mandates that a module on gender sensitization be included, as part of the foundational training of every judge. This module must aim at imparting techniques for judges to be more sensitive in hearing and deciding cases of sexual assault, and eliminating entrenched social bias, especially misogyny. The module should also emphasize the prominent role that judges are expected to play in society, as role models and thought leaders, in promoting equality and ensuring fairness, safety and security to all women who allege the perpetration of sexual offences against them. Equally, the use of language and appropriate words and phrases should be emphasized as part of this training. 47. The National Judicial Academy is hereby requested to devise, speedily, the necessary inputs which have to be made part of the training of young judges, as well as form part of judges\u2019 continuing education with respect to gender sensitization, with adequate awareness programs regarding stereotyping and unconscious biases that can creep into judicial reasoning. The syllabi and content of such courses shall be framed after necessary consultation with sociologists and teachers in psychology, gender studies or other relevant fields, preferably within three months. The course should emphasize upon the relevant factors to be considered, and importantly, what should be avoided during court hearings and never enter judicial reasoning. Public Prosecutors and Standing Counsel too should undergo mandatory training in this regard. The training program, its content and duration shall be developed by the National Judicial Academy, in consultation with State academies. The course should contain topics such as appropriate court-examination and conduct and what is to be avoided. 48. Likewise, the Bar Council of India (BCI) should also consult subject experts and circulate a paper for discussion with law faculties and colleges/universities in regard to courses that should be taught at the undergraduate level, in the LL.B program. The BCI shall also require topics on sexual offences and gender sensitization to be mandatorily included in the syllabus for the All India Bar Examination. 49. Before parting, this Court expresses its gratitude for the valuable suggestions and the assistance rendered by the learned Attorney General pursuant to the notice issued. We also appreciate the submissions made on behalf of the appellant(s) and the intervenor(s). 50. Each High Court should, with the help of relevant experts, formulate a module on judicial sensitivity to sexual offences, to be tested in the Judicial Services Examination. 51. In the light of the above, the bail conditions in the impugned judgment, extracted at para 3 above, are set aside, and expunged from the record. 52. Before concluding, it would be appropriate to quote certain excerpts from the Canadian Commentaries on Judicial Conduct:43 43 Les \u00c9ditions Yvon Blais Inc, 1991, quoted by Rt. Hon\u2019ble Beverley Mclachlin, former Chief Justice of Canada, in her Speech Judging in a Democratic State https://www.scc-csc.ca/judges-juges/spe-dis/bm-2004-06-03-eng.aspx#fnb10 \u201c[T]he wisdom required of a judge is to recognize, consciously allow for, and perhaps to question, all the baggage of past attitudes and sympathies that fellow citizens are free to carry, untested, to the grave. True impartiality does not require that the judge have no sympathies or opinions; it requires that the judge nevertheless be free to entertain and act upon different points of view with an open mind.\u201d 53. Judges play \u2013 at all levels \u2013 a vital role as teachers and thought leaders. It is their role to be impartial in words and action, at all times. If they falter, especially in gender related crimes, they imperil fairness and inflict great cruelty in the casual blindness to the despair of the survivors. 54. The appeal is disposed of in the above terms; there shall be no order on costs. ............................................J [A. M. KHANWILKAR] ..................................................J [S. RAVINDRA BHAT] New Delhi, March 18, 2021.",
        "16717267": "1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO.1352 OF 2019 MS. X ...PETITIONER(S) VERSUS THE STATE OF JHARKHAND & ORS. ...RESPONDENT(S) J U D G M E N T ASHOK BHUSHAN, J. This writ petition has been filed by a rape victim invoking the jurisdiction of this Court under Article 32 of the Constitution. 2. This Court entertained the writ petition and while issuing notice on 29.11.2020 passed the following order: \u201cIssue notice. Mr. Tapesh Kumar Singh, learned standing counsel for the State of Jharkhand, accepts notice on behalf of respondent/State. Signature Not Verified Digitally signed by Rajni Mukhi Date: 2021.01.20 15:31:24 IST Let the respondent/State file an affidavit Reason: giving details of all proceedings initiated by the petitioner or against her and the status of those proceedings. We, however, observe that the respondent no.3/Home Secretary shall also ensure that the concerned police authorities are instructed to ensure protection of the petitioner. List after four weeks.\u201d 3. A counter-affidavit has been filed on behalf of the State of Jharkhand to which rejoinder has also been filed by the petitioner. The petitioner has also filed certain additional documents. 4. From the pleadings of the parties following facts emerged: The petitioner claims to be a Scheduled Tribe in the State of Jharkhand. The petitioner was born on 24.12.1984. On 31.03.1998, petitioner was taken away by one Basant Yadav. Petitioner\u2019s father, Rajender Badaik, lodged a complaint. Basant Yadav was apprehended on 02.04.1998. Father of the petitioner and Police of the concerned Police Station got the marriage of the petitioner solemnised with Basant Yadav. After one year of the marriage, one son was born, named Manish Yadav. Petitioner filed a complaint as well as case for maintenance against her husband, Basant Yadav. 5. The petitioner obtained divorce from Basant Yadav and the custody of son was given to Basant Yadav. On 08.06.2002, petitioner went to Dultonganj on asking of Basant Yadav to meet her son on which date she was raped by one Mohd. Ali and three other accused. Case No.162 of 2002 under Section 376/34 read with Section 3(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989was registered in which accused, Mohd. Ali was apprehended and put on trial. 6. The petitioner lodged an FIR against the DY. Inspector General of Police on 02.08.2005 under Section 376,376(2)(a)IPC and Section 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,1989 on which on 03.08.2005 Case No.304 of 2005 was registered.The petitioner also lodged an FIR against an Inspector General of Police on which Sessions Trial No.257/2006 was registered. Certain other criminal cases got registered by the petitioner against different persons,some of which were filed under Section 376 IPC. In the Sessions Trial 11 of 2006, the accused Mohd Ali was convicted on 15.02.2014 with 10 years RI. 7. In the FIR lodged against Dy. Inspector General of Police final report was submitted which was accepted by the Court on 06.08.2007 insofar as FIR lodged against Inspector General of Police, Sessions Judge acquitted the Inspector General of Police by judgment and order dated 23.12.2017 against which criminal appeal has been filed in the High Court of Jharkhand. A criminal case was also lodged against the petitioner. 8. The petitioner\u2019s case in the writ petition is that she being the rape victim, whose identity was disclosed by the media and after knowing that the petitioner is a rape victim, no one is ready to give her accommodation even on rent. The petitioner in the writ petition invoked jurisdiction of this Court in the matter of rehabilitation of the petitioner. The petitioner also prays for direction to the respondent to protect the petitioner and her children\u2019s life. The petitioner after divorce from her first husband got married to one Rajesh Kujur with whom a son was also born. The petitioner has also lodged criminal case being No.56/2004 against her husband Rajesh Kujur which resulted in acquittal. 9. The petitioner has also filed a copy of the legal notice dated 09.08.2019 which was sent by the landlord of the petitioner asking the petitioner to vacate the premises on the ground of non-payment of rent. The petitioner sent a letter dated 05.12.2019 stating that the landlord had sealed the house on 04.12.2019. 10. In the counter-affidavit by the State, the State has given a tabular chart containing status of 7 criminal cases which were initiated by the petitioner. In paragraph 7 one of the cases mentioned in the chart is the case filed against Mohd. Ali, Mohd. Ali was convicted on 15.02.2014 under Section 376(2)(g) IPC and Section 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. In other criminal cases either the accused were acquitted ortrial is pending in some cases. In two FIRs lodged by the petitioner, in the year 2018 under Section 354 A(ii) as well as under Section 376, 448 and 506 IPC respectively the investigation is said to be going on. 11. The petitioner has appeared in person. Shri Tapesh Kumar Singh, learned counsel has appeared for the State of Jharkhand. 12. The petitioner submits that due to the petitioner being rape victim she is not getting any help from family friends or society. She, with three children, has no means of survival and she is not able to give education to her children. The administration, media and society has compelled the petitioner to lead a life with no security, no job and no shelter in future. 13. Shri Tapesh Kumar, learned counsel appearing for the State submits that the petitioner has lodged various FIRs alleging rape against several persons. It is submitted that against the petitioner also an FIR was lodged at Palamau Sadar PoliceCase No.194 of 2002 for the commission of the offences under Section 25(1-b)a of Arms Act,on the basis ofa written report submitted by the Assistant Sub-Inspector of Police in which charge-sheet has also been filed. It is submitted that since 02.10.2019 an armed Lady Constable, namely, Suman Surin has been deputed with the writ petitioner for her security. 14. It is further submitted that the State has taken care of making security arrangement of the petitioner and in pursuance of the order dated 06.01.2020 another security personnel has been deputed with the writ petitioner. Learned counsel, however, submits that the Police authority may be permitted to review the security from time to time to take appropriate measures in that regard. Shri Singh further submits that the petitioner is in a habit of making false allegations against several persons and officers. A complaint has recently been submitted making allegations of offences under Section 376 IPC. It is submitted that the petitioner has vacated the earlier accommodation of Subodh Thakur. 15. We have heard the petitioner in person as well as learned counsel appearing for the State. 16. There can be no denial that the petitioner is a rape victim. Even if we do not take into consideration other criminal cases filed by the petitioner under Section 376 IPC, in Case No.162/2002 where allegation of rape was made on 08.06.2002 the accused, Mohd. Ali has been convicted under Section 376(2)(g) IPC for 10 years RI. The petitioner being a rape victim deserves treatment as rape victim by all the authorities. 17. A rape victim suffers not only a mental trauma but also discrimination from the society. We may refer to the judgment of this Court in Nipun Saxena and another vs. Union of India and others, (2019) 2 SCC 703, wherein following observations were made by this Court: \u201c12. A victim of rape will face hostile discrimination and social ostracisation in society. Such victim will find it difficult to get a job, will find it difficult to get married and will also find it difficult to get integrated in society like a normal human being. \u2026\u2026\u2026\u201d 18. The petitioner herself has brought on record few orders passed in Writ Petition (Cr.)No.229 of 2014 (Padma @ Shushma Badaik vs. The State of Jharkhand and others)filed by the petitioner before the High Court of Jharkhand where in the order dated 12/11.09.2015 statement on behalf of the Counsel for the State was recorded by the High Court that State is ready to provide free education to the children of the writ petitioner. Following is the statement recorded by the High court on 12/11.09.2015: \u201cCounsel for the State has submitted that State is ready to provide free education to the children of the writ petitioner. If she will give her consent, her children shall be admitted in the Govt. Boarding School at Gumla and the expenses shall be borne by the Government.\u201d 19. The petitioner has two sons and one daughter. Manish Yadav appears to have been born after one year of the marriage which took place in the year 1998, eldest son, thus, as on date is major, two children of the petitioner are still minor. 20. On an inquiry by the Court as to which authority is to ensure that the minor children of the petitioner are provided free education, learned counsel submitted that it is Deputy Commissioner, Ranchi who can take the appropriate measures to ensure that the minor children of the petitioner are provided free education. Learned counsel for the State has submitted that education upto the age of 14 years in the State of Jharkhand is free which is provided by the State. We, thus, are of the view that Deputy Commissioner shall take appropriate steps to ensure that minor children of the petitioner are provided free education in any Government Institution at Ranchi. 21. The petitioner has also raised grievance regarding her identity which has been disclosed by the media. The petitioner has annexed certain materials along with writ petition and the additional documents. Section 228-A of the Indian Penal Code which has been inserted in the Indian Penal Code by Amendment Act43 of 1983 with effect from 25.12.1983 makes disclosure of the identity of the victim is an offence. Section 228-A is as follows: \u201cSection 228A. Disclosure of identity of the victim of certain offences etc.\u2014(1) Whoever prints or publishes the name or any matter which may make known the identity of any person against whom an offence under section 376, section 376A, section 376B, section 376C or section 376D is alleged or found to have been committed (hereafter in this section referred to as the victim) shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine. (2) Nothing in sub-section (1) extends to any printing or publication of the name or any matter which may make known the identity of the victim if such printing or publication is\u2014 (a) by or under the order in writing of the officer-in-charge of the police station or the police officer making the investigation into such offence acting in good faith for the purposes of such investigation; or (b) by, or with the authorisation in writing of, the victim; or (c) where the victim is dead or minor or of unsound mind, by, or with the authorisation in writing of, the next of kin of the victim: Provided that no such authorisation shall be given by the next of kin to anybody other than the chairman or the secretary, by whatever name called, of any recognised welfare institution or organisation. Explanation.\u2014For the purposes of this sub- section, \u201crecognised welfare institution or organisation\u201d means a social welfare institution or organisation recognised in this behalf by the Central or State Government. (3) Whoever prints or publishes any matter in relation to any proceeding before a court with respect to an offence referred to in sub- section (1) without the previous permission of such Court shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine. Explanation.\u2014The printing or publication of the judgment of any High Court or the Supreme Court does not amount to an offence within the meaning of this section.\u201d 22. This Court in Nipun Saxena and another (supra) has occasion to consider Section 228-A wherein this Court in para 50.1 has issued following directions: \u201c50.1. No person can print or publish in print, electronic, social media, etc. the name of the victim or even in a remote manner disclose any facts which can lead to the victim being identified and which should make her identity known to the public at large.\u201d 23. The law with regard to Section 228A is well established, all including the media, both print and electronic have to follow the law. 24. With regard to the payment of compensation to the petitioner as a rape victim, along with additional documents the petitioner has brought on record materials to indicate that the decision was taken by the District Legal Services Authority, Ranchi to pay compensation of Rs.1,00,000/- by letter dated 06.03.2017. The letter of the Secretary, District Legal Services Authority, Ranchi has been brought on record by the petitioner herself. The grant of compensation has been considered under the Jharkhand Victim Compensation Scheme, 2012 as amended in 2016. 25. There is a statutory scheme already enforced in the State of Jharkhand framed under Section 357A of the Code of Criminal Procedure Code, 1973,which provides procedure for grant of compensation. The petitioner had already made application to seek compensation under the above Scheme and payment of compensation has already been made. 26. The next grievance which has been highlighted by the petitioner is the petitioner\u2019s inability to get any rented accommodation in Ranchi due to she being a rape victim. In the counter-affidavit filed by the State, it is clear that the petitioner has lived at several/different places but due to the dispute with the landlord she has to leave the premises. There are various Central as well as State Schemes for providing residential accommodation to persons living below poverty line and other deserving cases, the Deputy Commissioner, Ranchi may consider the case of the petitioner for allotment of any housing accommodation under Prime Minister Awas Yojna or any other Scheme of the Centre or the State. 27. In view of the foregoing discussion, we dispose of this writ petition with the following directions: (1) The Deputy Commissioner, Ranchi is directed to take measure to ensure that minor children of the petitioner are provided free education in any of the Government Institutions in District Ranchi where the petitioner is residing till they attain the age of 14 years. (2) The Deputy Commissioner, Ranchi may also consider the case of the petitioner for providing house under Prime Minister Awas Yojna or any other Central or State Scheme in which petitioner could be provided accommodation. (3) The Senior Superintendent of Police, Ranchi and other competent authority shall review the Police security provided to the petitioner from time to time and take such measures as deem fit and proper. (4) The District Legal Services Authority, Ranchi on representation made by the petitioner shall render legal services to the petitioner as may be deemed fit to safeguard the interest of the petitioner. ......................J. ( ASHOK BHUSHAN ) ......................J. ( R. SUBHASH REDDY ) ......................J. ( M.R. SHAH ) New Delhi, January 20, 2021.",
        "1304109": "REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1919 of 2010 Anversinh @ Kiransinh Fatesinh Zala ..... Appellant(s) VERSUS State of Gujarat .....Respondent(s) JUDGMENT Surya Kant, J: This criminal appeal has been heard through video conferencing. The appellant\u00adAnversinh impugns the judgment pronounced by the High Court of Gujarat dated 28.07.2009 by which his conviction under Section 376 of the Indian Penal Code, 1860 (\u201cIPC\u201d) was overturned, but the charge of kidnapping under Sections 363 and 366 of IPC was upheld and consequential sentence of rigorous imprisonment of five years was maintained. FACTS 2. The complainant \u00ad Kiransinh Jalamsinh (PW\u00ad1) when came back Signature Not Verified from work on the night of 14.05.1998, he was informed by his wife Digitally signed by Vishal Anand Date: 2021.01.13 14:27:22 IST Reason: that their eldest sixteen\u00adyear\u00adold daughter (PW\u00ad3; hereinafter, Page | 1 \u201cprosecutrix\u201d) had not returned home. Educated till Class VII, the prosecutrix worked as a maid; sweeping and mopping a few hours every noon and evening. The complainant\u00adfather made enquiries at her workplace where he learnt from a watchman that his daughter hadn\u2019t come for her second shift and that she was last seen coming out of the vacant Bungalow No. 4 of the Ramjani Society with the appellant. It was learnt upon enquiry that the appellant had left for his home in Surpur with the prosecutrix. The complainant rushed to the appellant\u2019s home with his uncle and brother\u00adin\u00adlaw but could not trace the prosecutrix\u2019s whereabouts. After returning to Ahmedabad, a police complaint was registered on 16.05.1998. The police were able to locate both the appellant and the prosecutrix to a farm near Modasa, from where they were brought back to Ahmedabad on 21.05.1998. After medical examination and seizure of her clothes, the prosecutrix was reunited with her family. 3. The prosecution examined eight witnesses and adduced twelve documents in order to prove their case that the minor prosecutrix was forcibly taken by the appellant with the intention of marriage and later subjected to sexual intercourse against her will. The prosecutrix\u2019s father (PW\u00ad1) corroborated the version of events noted above and testified that his daughter who was aged around 15 years had been taken from his custody without his consent. He additionally deposed Page | 2 that he was informed by the prosecutrix\u2019s friend, Rekha, that she had communicated a message from a boy to the prosecutrix asking her to come to \u2018Sardarnagar\u2019. PW\u00ad2, an assistant teacher at the prosecutrix\u2019s primary school, brought the school records and testified that her date of birth at the time of admission was recorded as 08.02.1982. The prosecutrix (PW\u00ad3) identified the appellant and deposed that she had been caught by him on her way to work and was forcibly taken in an auto\u00adrickshaw to a nearby bus stand from where she was transported by bus to the appellant\u2019s village. She further claimed to have repeatedly been raped and pressurised into performing marriage with the appellant. The prosecutrix nevertheless admitted during cross\u00ad examination to being in love with the appellant, having had consensual sexual intercourse with him on a prior date and also having met him outside her home on previous occasions. It further emerged that during her alleged kidnapping, she was seated with other passengers on the back seat of the autorickshaw whereas the appellant was on the front seat. She admitted to spending a week at the appellant\u2019s village where both went to work together and were living akin to husband and wife. PW\u00ad4 and PW\u00ad6 who were panch witnesses to the recording of the FIR, physical condition of the prosecutrix and seizure of the prosecutrix\u2019s clothes, both turned hostile and discarded the prosecution\u2019s version. PW\u00ad5, being a Doctor Page | 3 at the Civil Hospital, proved the medical record and injury certificates showing that the prosecutrix had indeed been subjected to sexual intercourse. Finally, PW\u00ad7, was the police officer who registered the FIR and PW\u00ad8 deposed being the Investigating Officer of the case. 4. It is pertinent to mention that the Investigating Officer (PW\u00ad8) admitted in his cross\u00adexamination that there was no reference to Rekha\u2019s statement in the FIR; that the prosecutrix had not stated that the appellant caught her on way to work and that she had been forcefully abducted, or that her modesty was outraged. Instead, PW\u00ad8 disclosed that the prosecutrix in her statement under Section 161 of the Code of Criminal Procedure, 1973 (\u201cCrPC\u201d) claimed to know the appellant for a month prior to the occurrence, and of having a regular physical relationship in a damaged bungalow near her place of work. After they were caught by the guard while coming out of such bungalow, they had run away to Surpur where they started labour work on the farm of one Bhikabhai to earn a livelihood and co\u00adhabit as husband and wife. Besides these oral depositions, the prosecution also produced documents in the form of birth certificate, medical papers, FSL report, police and other records. 5. At the stage of recording statement under Section 313 of the CrPC on 01.11.2002, the appellant stated his age as 23 years and claimed to be innocent. The legal aid counsel, engaged from the Page | 4 defence side, controverted the prosecution\u2019s imputations and resultant conclusions. A parallel version was projected wherein both appellant and the prosecutrix were allegedly in love and had consensual physical relations since long before the date of the incident. It was claimed that the prosecutrix had run away solely and completely on her own accord; and had wished to marry the appellant without any enticement on his side. A catena of case laws was cited to show that neither charges of kidnapping nor rape were made out in such cases of love affairs. 6. The learned Additional Sessions Judge vide his order dated 16.12.2002 held that the testimony of the prosecutrix unequivocally established that she had been raped three to four times by the appellant, thus meriting his conviction under Section 376 of IPC. It was further observed that although there was a love affair but considering the fact that the prosecutrix was 16 years, 3 months and 6 days old at the time of occurrence and was thus minor, her consent was wholly irrelevant for the charge of kidnapping. In light of the prosecutrix\u2019s claim of forcible abduction and discovery along with the appellant, it was also held that the appellant had enticed and lured the minor girl with the intention to have intercourse and marriage, and thus all the ingredients of Sections 363 and 366 of IPC were well established. Considering the serious nature of the offence, the trial Page | 5 Court awarded sentence of one\u00adyear rigorous imprisonment and fine of Rs 1,000 (or simple imprisonment of two months in lieu thereof) for offence under Section 363; five years rigorous imprisonment and fine of Rs 5,000 (or simple imprisonment of three months in lieu thereof) for offence under Section 366; and ten years rigorous imprisonment and fine of Rs 10,000 (or simple imprisonment of six months in lieu thereof) for offence under Section 376 of IPC. 7. The appellant assailed his conviction before the High Court claiming that the parties were in love owing to which the prosecutrix had left her parents\u2019 home and gone with him at her own free will. Additionally, she never raised any protest or alarm despite numerous opportunities to do so and thus none of the constituents of \u2018kidnapping\u2019 or \u2018rape\u2019 was established. 8. The High Court in its order under appeal observed that the factum of the prosecutrix being in love with the accused having been established beyond any doubt coupled with the fact that they used to meet frequently, the appellant could not be held guilty of committing \u2018rape\u2019 and his consequential conviction and sentence under Section 376 IPC was set aside. However, there being no evidence suggesting that the prosecutrix had consented to be taken from her parents\u2019 lawful custody and given her undisputable minority, the appellant\u2019s conviction under Sections 363 and 366 of IPC was sustained. Page | 6 CONTENTIONS OF PARTIES 9. The appellant being aggrieved by his conviction under the charge of kidnapping has approached this Court re\u00adasserting his innocence. Learned counsel for the appellant highlighted that the High Court has acknowledged that there was a love affair, frequent meetings, and consensual relationship between the parties, which merited the appellant\u2019s acquittal under Section 376 IPC. But in the very same breath, the High Court has also held that the prosecutrix did not willingly leave her parents\u2019 custody and had not consented to be taken for marriage. These two findings were canvassed as being mutually contradictory. Reliance was placed on the judgment of this Court in S. Varadarajan v. State of Madras,1 to drive home the point that voluntary abandonment of home by a minor girl would not amount to kidnapping, and that in the absence of some active involvement, the appellant could not be said to have \u2018taken\u2019 or \u2018enticed\u2019 the prosecutrix. 10. In contrast, learned State Counsel supported the impugned judgment of conviction. He emphasised on the concurrent findings of the Courts below read with the plain language of the Statute (IPC) and re\u00aditerated that consent of a girl below 18 years could be no excuse in a case of \u2018kidnapping\u2019 within the meaning of Section 361 IPC. ANALYSIS (1965) 1 SCR 243. Page | 7 I. Whether a consensual affair can be a defence against the charge of kidnapping a minor? 11. Having given our thoughtful consideration to the rival submissions, it appears to us that although worded succinctly, the impugned judgment does not err in appreciating the law on kidnapping. It would be beneficial to extract the relevant parts of Sections 361 and 366 of IPC which define \u2018Kidnapping from Lawful Guardianship\u2019 and consequential punishment. These provisions read as follows: \u201c361. Kidnapping from lawful guardianship.\u2014Whoever takes or entices any minor under [sixteen] years of age if a male, or under [eighteen] years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship. Explanation.\u2014The words \u201clawful guardian\u201d in this section include any person lawfully entrusted with the care or custody of such minor or other person. xxx 366. Kidnapping, abducting or inducing woman to compel her marriage, etc.\u2014Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term Page | 8 which may extend to ten years, and shall also be liable to fine; [and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid].\u201d 12. A perusal of Section 361 of IPC shows that it is necessary that there be an act of enticing or taking, in addition to establishing the child\u2019s minority (being sixteen for boys and eighteen for girls) and care/keep of a lawful guardian. Such \u2018enticement\u2019 need not be direct or immediate in time and can also be through subtle actions like winning over the affection of a minor girl. 2 However, mere recovery of a missing minor from the custody of a stranger would not ipso\u00adfacto establish the offence of kidnapping. Thus, where the prosecution fails to prove that the incident of removal was committed by or at the instigation of the accused, it would be nearly impossible to bring the guilt home as happened in the cases of King Emperor v. Gokaran3 and Emperor v. Abdur Rahman4. 13. Adverting to the facts of the present case, the appellant has unintentionally admitted his culpability. Besides the victim being recovered from his custody, the appellant admits to having established Thakorlal D Vadgama v. State of Gujarat, (1973) 2 SCC 413, \u00b6 10. AIR 1921 Oudh 226. AIR 1916 All 210. Page | 9 sexual intercourse and of having an intention to marry her. Although the victim\u2019s deposition that she was forcefully removed from the custody of her parents might possibly be a belated improvement but the testimonies of numerous witnesses make out a clear case of enticement. The evidence on record further unequivocally suggests that the appellant induced the prosecutrix to reach at a designated place to accompany him. 14. Behind all the chaff of legalese, the appellant has failed to propound how the elements of kidnapping have not been made out. His core contention appears to be that in view of consensual affair between them, the prosecutrix joined his company voluntarily. Such a plea, in our opinion, cannot be acceded to given the unambiguous language of the statute as the prosecutrix was admittedly below 18 years of age. 15. A bare perusal of the relevant legal provisions, as extracted above, show that consent of the minor is immaterial for purposes of Section 361 of IPC. Indeed, as borne out through various other provisions in the IPC and other laws like the Indian Contract Act, 1872, minors are deemed incapable of giving lawful consent. 5 Section 361 IPC, particularly, goes beyond this simple presumption. It bestows the ability to make crucial decisions regarding a minor\u2019s physical safety upon his/her guardians. Therefore, a minor girl\u2019s infatuation Satish Kumar Jayanti Lal Dabgar v. State of Gujarat, (2015) 7 SCC 359, \u00b6 15. Page | 10 with her alleged kidnapper cannot by itself be allowed as a defence, for the same would amount to surreptitiously undermining the protective essence of the offence of kidnapping. 16. Similarly, Section 366 of IPC postulates that once the prosecution leads evidence to show that the kidnapping was with the intention/knowledge to compel marriage of the girl or to force/induce her to have illicit intercourse, the enhanced punishment of 10 years as provided thereunder would stand attracted. 17. The ratio of S. Varadarajan (supra), although attractive at first glance, does little to aid the appellant\u2019s case. On facts, the case is distinguishable as it was restricted to an instance of \u201ctaking\u201d and not \u201centicement\u201d. Further, this Court in S. Varadarajan (supra) explicitly held that a charge of kidnapping would not be made out only in a case where a minor, with the knowledge and capacity to know the full import of her actions, voluntarily abandons the care of her guardian without any assistance or inducement on part of the accused. The cited judgment, therefore, cannot be of any assistance without establishing: first, knowledge and capacity with the minor of her actions; second, voluntary abandonment on part of the minor; and third, lack of inducement by the accused. 18. Unfortunately, it has not been the appellant\u2019s case that he had no active role to play in the occurrence. Rather the eye\u00adwitnesses have Page | 11 testified to the contrary which illustrates how the appellant had drawn the prosecutrix out of the custody of her parents. Even more crucially, there is little to suggest that she was aware of the full purport of her actions or that she possessed the mental acuities and maturity to take care of herself. In addition to being young, the prosecutrix was not much educated. Her support of the prosecution version and blanket denial of any voluntariness on her part, even if presumed to be under the influence of her parents as claimed by the appellant, at the very least indicates that she had not thought her actions through fully. 19. It is apparent that instead of being a valid defence, the appellant\u2019s vociferous arguments are merely a justification which although evokes our sympathy, but can\u2019t change the law. Since the relevant provisions of the IPC cannot be construed in any other manner and a plain and literal meaning thereof leaves no escape route for the appellant, the Courts below were seemingly right in observing that the consent of the minor would be no defence to a charge of kidnapping. No fault can thus be found with the conviction of the appellant under Section 366 of IPC. II. Whether the punishment awarded is just, and ought there be leniency given the unique circumstances? 20. Having held so, we feel that there are many factors which may not be relevant to determine the guilt but must be seen with a Page | 12 humane approach at the stage of sentencing. The opinion of this Court in State of Madhya Pradesh v. Surendra Singh6 on the need for proportionality during sentencing must be re\u00ademphasised. This Court viewed that: \u201c13. We again reiterate in this case that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. The court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment. Meagre sentence imposed solely on account of lapse of time without considering the degree of the offence will be counterproductive in the long run and against the interest of the society.\u201d [emphasis supplied] 21. True it is that there cannot be any mechanical reduction of sentence unless all relevant factors have been weighed and whereupon the Court finds it to be a case of gross injustice, hardship, or palpably capricious award of an unreasonable sentence. It would thus depend upon the facts and circumstances of each case whether a superior Court should interfere with, and resultantly enhance or reduce the (2015) 1 SCC 222. Page | 13 sentence. Applying such considerations to the peculiar facts and findings returned in the case in hand, we are of the considered opinion that the quantum of sentence awarded to the appellant deserves to be revisited. 22. We say so for the following reasons: first, it is apparent that no force had been used in the act of kidnapping. There was no pre\u00ad planning, use of any weapon or any vulgar motive. Although the offence as defined under Section 359 and 361 of IPC has no ingredient necessitating any use of force or establishing any oblique intentions, nevertheless the mildness of the crime ought to be taken into account at the stage of sentencing. 23. Second, although not a determinative factor, the young age of the accused at the time of the incident cannot be overlooked. As mentioned earlier, the appellant was at the precipice of majority himself. He was no older than about eighteen or nineteen years at the time of the offence and admittedly it was a case of a love affair. His actions at such a young and impressionable age, therefore, ought to be treated with hope for reform, and not punitively. 24. Third, owing to a protracted trial and delays at different levels, more than twenty\u00adtwo years have passed since the incident. Both the victim and the appellant are now in their forties; are productive members of society and have settled down in life with their respective Page | 14 spouses and families. It, therefore, might not further the ends of justice to relegate the appellant back to jail at this stage. 25. Fourth, the present crime was one of passion. No other charges, antecedents, or crimes either before 1998 or since then, have been brought to our notice. The appellant has been rehabilitated and is now leading a normal life. The possibility of recidivism is therefore extremely low. 26. Fifth, unlike in the cases of State of Haryana v. Raja Ram7 and Thakorlal D. Vadgama v. State of Gujarat 8, there is no grotesque misuse of power, wealth, status or age which needs to be guarded against. Both the prosecutrix and the appellant belonged to a similar social class and lived in geographical and cultural vicinity to each other. Far from there being an imbalance of power; if not for the age of the prosecutrix, the two could have been happily married and cohabiting today. Indeed, the present instance is an offence: mala prohibita, and not mala in se. Accordingly, a more equitable sentence ought to be awarded. 27. Given these multiple unique circumstances, we are of the opinion that the sentence of five years\u2019 rigorous imprisonment awarded by the Courts below, is disproportionate to the facts of the this case. The concerns of both the society and the victim can be (1973) 1 SCC 544. (1973) 2 SCC 413. Page | 15 respected, and the twin principles of deterrence and correction would be served by reducing the appellant\u2019s sentence to the period of incarceration already undergone by him. CONCLUSION 28. In light of the above discussion, we are of the view that the prosecution has established the appellant\u2019s guilt beyond reasonable doubt and that no case of acquittal under Sections 363 and 366 of the IPC is made out. However, the quantum of sentence is reduced to the period of imprisonment already undergone. The appeal is, therefore, partly allowed in the above terms and the appellant is consequently set free. The bail bonds are discharged. \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026.. J. (N.V. RAMANA) .\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026 J. (S. ABDUL NAZEER) ..\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026...J. (SURYA KANT) NEW DELHI DATED : 12.01.2021 Page | 16",
        "26913217": "[REPORTABLE] IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3767 OF 2010 THE STATE OF BIHAR & ORS. \u2026APPELLANT(S) VERSUS ARBIND JEE \u2026RESPONDENT(S) J U D G M E N T Hrishikesh Roy, J. 1. This appeal is directed against the judgment and order dated 29.9.2008 of the Patna High Court in LPA No. 245 of 2008. 2. The father of the respondent was working as a Home guard and after he died in harness, the respondent applied for Signature Not Verified compassionate Digitally signed by Rajni Mukhi appointment. The concerned Committee Date: 2021.09.28 13:32:22 IST Reason: recommended the respondent and others whereafter the order dated 20.11.1985 was issued by the Commandant, Bihar Home Guard forwarding the name of the respondent as one of the persons shortlisted for appointment on compassionate basis. The appointment was conditional upon physical fitness certificate issued by the Civil Surgeon and it was made clear that appointment of the enlisted persons will be effective only after due satisfaction of their capability, educational qualification etc. 3. The recommended persons appeared in the Home Guard Headquarter as directed, but the respondent was denied appointment as he was found deficient in the physical standards. Thus aggrieved, the respondent moved and obtained relief from the Patna High Court for appointment in Class IV post. As the respondent was shortlisted for the post of Adhinayak Lipik, he challenged the High Court order through SLP(C) No. 6437 of 1993. The resultant Civil Appeal No. 220 of 1996 was allowed by the Supreme Court with the following direction:- \u201c\u2026.We, therefore, allow this appeal and direct the respondents to appoint the appellant to the post of \u2018Adhinayak Lipik\u2019 in the Homeguard Department, State of Bihar within one month from the date of communication of this order.\u201d 4. Following the above direction of the Supreme Court, the respondent was appointed on 27.2.1996 by the order No. 108 of 1996 dated 10.2.1996 issued by the Commandant of the Bihar Home Guard Bn., Patna. Six years after joining service, an application was made on 10.9.2002 by the respondent claiming seniority from 5.12.1985 but the authorities rejected the claim on 20.11.2002 on the ground that the respondent was appointed on 27.2.1996 on direction of the Supreme Court and that he was not borne in service as on 5.12.1985. The rejection order was then challenged and the Patna High Court in the respondent\u2019s CWJC no. 6683/2003 directed the authority to consider the respondent\u2019s seniority from 5.12.1985. 5. The above order passed by the learned Single Judge was challenged by the State and the Division Bench on 29.9.2008 while dismissing the LPA no. 245 of 2008 noted that the respondent was denied appointment, (as proposed on 20.11.1985), on the ground that he did not conform to the physical standards applicable to a Constable and eventually the Supreme Court directed appointment of the respondent as Adhinayak Lipik in the Home Guard Department. Therefore, the appointment should relate back to the date of the initial order on 20.11.1985. With this observation, the State\u2019s LPA was dismissed by the order impugned in this appeal. 6. We have heard Mr. Abhinav Mukerji, learned counsel appearing for the appellants. The respondent is represented by Mr. Satvik Misra, learned counsel. 7. The issue to be answered here is whether the respondent is entitled to claim seniority in service from a retrospective date i.e. 20.11.1985 as was ordered by the High Court or whether he is entitled for seniority from the date he entered service. 8. It is important to bear in mind that the order No. 1169/1985, whereby the respondent along with few others were shortlisted for compassionate appointment, did not materialize and was in fact refused for the respondent as he failed to meet the physical standards. Eventually, following the direction issued by this Court on 2.1.1996 to appoint the respondent within one month from the date of communication of the Supreme Court\u2019s order, the respondent was appointed on 10.2.1996. The respondent joined service without demur and made no claim for any retrospective effect to his appointment, until addressing the representation on 10.9.2002, to claim seniority from 5.12.1985. 9. In the previous round before this Court, the respondent was concerned about securing appointment as Adhinayak Lipik and direction was issued to appoint him, specifying the time limit of one month. But there was no direction for allowing retrospective benefit to the appointee. In such circumstances, the High Court in our view should not have travelled beyond the order passed by this Court to hold in favour of the respondent that his seniority should be counted from 5.12.1985 although he entered service a decade later only on 10.2.1996. Moreover, the respondent even after entering service did not immediately claim the benefit of retrospective appointment, and only on 10.9.2002 he applied to the Commandant to claim seniority from 5.12.1985 which claim was however rejected by the Authority on 20.11.2002. 10. As earlier noted, the respondent entered service only on 10.2.1996 and yet under the impugned judgment, the High Court directed counting of his seniority from 20.11.1985 when he was not borne in service. The jurisprudence in the field of service law would advise us that retrospective seniority cannot be claimed from a date when an employee is not even borne in service. It is also necessary to bear in mind that retrospective seniority unless directed by court or expressly provided by the applicable Rules, should not be allowed, as in so doing, others who had earlier entered service, will be impacted. 11. To challenge the conferment of retrospective seniority, the learned counsel for the appellant has cited Shitla Prasad Shukla vs. State of UP and Ors.1 where this court speaking through Justice M. P. Thakkar rightly held that: \u201c10. \u2026\u2026The late comers to the regular stream cannot steal a march over the early arrivals in the regular queue. On principle the appellant cannot therefore succeed. What is more in matters of seniority the Court does not exercise jurisdiction akin to appellate jurisdiction against the determination by the competent authority, so long as the competent authority has acted bona fide and acted on principles of fairness and fair play. In a matter where there is no rule or regulation governing the situation or where there is one, but is not violated, the Court will not overturn the determination unless it would be unfair not to do so\u2026\u201d 1 (1986)(Supp.) SCC 185 12. The principles enunciated in Shitla Prasad Shukla (supra) are applicable to the case at hand. The compassionate appointment of the respondent is not being questioned here but importantly he is claiming seniority benefit for 10 years without working for a single day during that period. In other words, precedence is being claimed over other regular employees who have entered service between 1985 to 1996. In this situation, the seniority balance cannot be tilted against those who entered service much before the respondent. Seniority benefit can accrue only after a person joins service and to say that benefits can be earned retrospectively would be erroneous. Such view was expressed in many cases and most recently in Ganga Vishan Gujrati And Ors. Vs. State of Rajasthan and Ors. 2. Justice Dr. D. Y. Chandrachud speaking for the Court opined as under:- \u201c41. A consistent line of precedent of this Court follows the principle that retrospective seniority cannot be granted to an employee from a date when the employee was not borne on a cadre. Seniority amongst members of the same grade has to be counted from the date of initial entry into the grade. This principle emerges from the decision of the Constitution Bench of this Court in Direct 2 (2019) 16 SCC 28 Recruit Class II Engineering Officers\u2019 Association v State of Maharashtra3. The principle was reiterated by this Court in State of Bihar v Akhouri Sachindra Nath4 and State of Uttaranchal v Dinesh Kumar Sharma.5\u201d 13. The learned counsel for respondent relies on C. Jayachandran vs. State of Kerala6, to argue for retrospective seniority. The bench speaking through Justice Hemant Gupta in the context of a diligent litigant observed that: \u201c41 \u2026\u2026..The appellant has submitted the representation on 11-4-2012 i.e. within 1 year and 2 months of his joining and submitted reminder on 18-9-2014. It is the High Court which has taken time to take a final call on the representation of the appellant and other direct recruits. The appellant was prosecuting his grievances in a legitimate manner of redressal of grievances. Therefore, it cannot be said that the claim of the appellant was delayed as he has not claimed the date of appointment as 30-3-2009. The appellant having been factually appointed vide communication dated 22-12-2010, he could not assume or claim to assume charge prior to such offer of appointment. The appellant has to be granted notional seniority from the date the other candidates were appointed in pursuance of the same select list prepared on the basis of the common appointment process.\u201d 3 (1990) 2 SCC 715. 4 1991 Supp. (1) SCC 334. 5 (2007) 1 SCC 683. 6 (2020) 5 SCC 230 As can be seen from the above extracted passage, the benefit of notional seniority was claimed within 1 year from date of actual appointment. This was also a case where the contesting parties were recruited through a common competitive process. But the present is not a case of recruitment by selection and is a compassionate appointment made on this court\u2019s order. The court\u2019s direction to the State was to appoint within 1 month without specifying that the appointment should have a retrospective effect. The respondent never raised any claim for relating his appointment to an earlier date from this Court. Post appointment, he never raised any grievance within reasonable time, for fixing his date of appointment as 20.11.1985. Six years later, only on 10.9.2002, he made a representation and the same was rejected with the observation that on 1.8.1985, the respondent was yet to enter service. Proceeding with these facts, it is clearly discernible that the respondent has slept over his rights, and never earlier pointedly addressed his present claim either to the Supreme Court (in the earlier round) or to the State, soon after his appointment. Moreover, his was a compassionate appointment without any element of competitive recruitment where the similarly recruited has stolen a march over him. Therefore, the ratio in C. Jayachandran (supra) will be of no assistance to the respondent as that case is distinguishable on facts. 14. The records here reflects that the State have faithfully implemented the direction issued by this Court and appointed the respondent. Moreover, the action of the authorities in determination of the respondent\u2019s seniority from the date of entering service is found to be consistent with the applicable laws. There could be individual cases where a bunch of applicants are recruited through a common competitive process but for one reason or another, one of them is left out while others get appointed. When the denial of analogous appointment is founded to be arbitrary and legally incorrect, the benefit of notional seniority may be conferred on the deprived individual. However, the present is not a case of that category. 15. Supported by our above discussion, we are of the considered opinion that the High Court was in error in granting retrospective seniority to the respondent. The appeal is accordingly allowed and the impugned orders passed by the High Court are set aside and quashed. With this order the case is disposed of leaving the parties to bear their own cost. \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026J. [R. SUBHASH REDDY] \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026J. [HRISHIKESH ROY] NEW DELHI SEPTEMBER 28, 2021",
        "160214": "REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3203 OF 2008 [Arising out of SLP (Civil) No. 568 of 2007] Babulal Badriprasad Varma ...Appellant Versus Surat Municipal Corporation & Ors. ...Respondents JUDGMENT S.B. SINHA, J : 1. Leave granted. 2. Interpretation and/ or application of the provisions of the Gujarat Town Planning and Urban Development Act, 1976 (for short \"the Act\") and the Rules framed thereunder known as the Gujarat Town Planning and Urban Development Rules, 1979 (for short \"the Rules\") is in question in this appeal which arises out of a judgment and order dated 27.12.2006 passed by a Division Bench of the High Court of Gujarat at Ahmedabad in Letters Patent Appeal No. 1611 of 2006 arising out of a judgment and order dated 23.11.2006 passed by a learned Single Judge of the said Court in SCA No. 7092 of 2001. 3. Before embarking upon the issue involved in this appeal, we may notice the admitted fact of the matter. The Government of Gujarat in exercise of its power conferred upon it under Section 65 of the Act made a scheme in respect of the town of Umra, Surat on 1.06.1999. Plot Nos. 17/7 and 17/8 were owned by Respondent No. 4 herein. Appellant was a tenant under the said respondent in respect of Plot No. 17/8 admeasuring 1067 sq.m. He used to run a business of marble and stone therein. A road widening project was proposed in terms of the said scheme. Notices therefor were issued both to the appellant as also the respondent no. 4. Appellant objected thereto. He, however, did not pursue his case in regard to the proposal for widening of the road. For the said public purpose, viz., widening of the road, 867 sq. m. of land was taken over leaving only 200 sq. m. of land. With a view to give effect to the provisions of the Act and the Rules framed thereunder, proceedings were initiated for allotment of the said land in terms of the Act. 20% of the land was taken over without payment of any compensation. In respect of the proceedings initiated for the purpose of re-allotment of the land, despite a public notice, the appellant did not file any objection. He did not take any part in the proceedings therefor. Respondent No. 4 was allotted a final plot bearing No. 157 and the said 200 sq. m. of land of plot No. 17/8 has merged in final plot No. 165 owned by the respondent No. 3. The Scheme was notified in the year 1999. Respondent No. 1 herein which is the statutory agency in terms of the Act for the purpose of implementation of the Scheme issued a notice under Section 67 of the Act upon the respondent no. 4 on or about 15.01.2000. As he did not respond thereto, a notice under Section 68 of the Act was served on him on 31.03.2000 stating: \"As per the said approved preliminary scheme the plot No. 157 is allotted to you. And, its pole demarcations were done by the town planning officer at site. The said Final Plot/ Original Plot is allotted in lieu of your No. 17/7, 17/8 paiki land. And, the said land is now vested in the Municipal Corporation from 1.7.1999, and is of the ownership of the Municipal Corporation. Thereafter the notice below section 67 for the change in occupation was issued on 15.1.2000 to you. In spite of this you have not handed over the possession. Therefore, as per the Gujarat Town Planning and Urban Development Rules, 1979 rule 33 the undersigned in exercise of powers conferred below section 68(1) and 8(2) of the Bombay Provincial Municipalities Act and below the section 68 notice under the Gujarat Town Planning and Urban Development Act this is to inform you that as shown in the sketch on the reverse the premises marked should be vacated within 7 days from receipt of the notice and had over the possession to the Surat Municipal Corporation. If you fail to do so then on completion of the stipulated time limit as per the Rule 33 of the Gujarat Town Planning and Urban Development Rules, 1979 the said land and the occupation on the same will be summarily evicted and your occupation will be removed and if you obstruct/ interfere on it after taking away the possession you trespass then as provided under Rule 33 of the Gujarat Town Planning and Urban Development Rules, 1979 the action as per the section 188 of the Indian Penal Code will be initiated against you before the Criminal Court, pleased take note of the same.\" 5. The validity and/ or legality of the said notice was questioned by the appellant by filing a writ petition in the High Court of Gujarat inter alia contending that the purported final allotment of plot No. 165 in favour of the respondent no. 3 and allotment of final plot No. 157 in favour of the respondent no. 4 were made without issuing any notice as envisaged under Sections 52 and 53 of the Act. In the said writ petition, it was prayed: \"8. On the facts and circumstances mentioned herein above, the Petitioner prays to your Lordships that: (A) Be pleased to issue writ of Mandamus or writ in the nature of Mandamus or appropriate writ, order or direction, quashing and setting aside the impugned action of acquiring and demolishing the structures available on the land in question, i.e., Original Plot No. 17/A - R.S. No. 17/P, situated at Umra, Surat.\" 6. A learned Single Judge of the High Court dismissed the said writ petition inter alia opining that the interest of landlord and tenant being common and in absence of any inter se dispute between them even if any portion of the land which remained in possession of the tenant was included in the Scheme, the proper remedy would be to claim compensation to that extent, holding: \"18. It appears that in the said decision, the Apex Court while considering the scheme on the touch- stone of the mandatory procedure to be followed by the authority under the Bombay Town Planning Rules, has given directions to provide alternative accommodation based on the earlier decision in case of Jaswantsingh Mathurasingh and upheld the scheme. Such is not the issue in the present case nor there is any complaint by the tenant that any special notice was not served or that the mandatory procedure for finalization of the scheme is not followed. Further, it appears that if the interest of the landlord and of the tenant is common and in absence of any inter se dispute between the landlord and tenant, even if any portion of the land which is in possession of the tenant is included in the scheme, the proper remedy for the tenant would be to claim for compensation to that extent and if such compensation is not received by him, he may resort to proper remedy available for recovery of the compensation to the extent of the area in his occupation. At least on ground that the tenant is in occupation, it would not be a case for interference with the scheme which is sanctioned and made a part of the statute. Suffice it to say that the tenant will be at liberty to resort to appropriate proceedings against the landlord for the inter se rights and also for entitlement of the compensation. But if the area of original plot no. 17/8 is included in the final scheme and in exchange of the original plot held by Keshav Gramini of 17/8 and 17/7, the final plot is already allotted and as observed earlier it was even otherwise in the ownership of the original holder and it is only on account of inter se dispute the other persons are lawfully occupying the land, the tenant cannot insist that his landlord must be allotted the land of final plot no. 157 simultaneously, when he is to be evicted or deprived of the portion of the land of original plot no. 17/8. Therefore, in my view considering the peculiar facts and circumstances of the present case, the decision of the Apex Court in case of Mansukhlal (supra) cannot be made applicable to the present case.\" 7. A Division Bench of the High Court dismissed an intra-court appeal preferred thereagainst. 8. Mr. U.U. Lalit, learned senior counsel appearing on behalf of the appellant, in support of this appeal, inter alia would submit: (i) The provisions of Sections 52 and 81 being imperative in character, no acquisition of land is permissible without service of any notice upon the persons interested which would include a tenant in occupation and carrying on business thereon. (ii) A tenant having regard to the provisions of the Transfer of Property Act or otherwise having an interest in the property cannot be deprived therefrom without following the procedure established by law and without initiation of any proceedings for acquisition of land. (iii) The tenant's interest being distinct and separate could not have been held to be merged with the interest of the landlord, either for the purpose of allotment of a final plot or otherwise in favour of the landlord. (iv) Appellant having a right over the remaining 200 sq. m. of the land of original plot No. 17/8 should be allowed to continue thereupon and final allotment made in favour of the respondent no. 3 to that extent should be cancelled. Mr. Lalit in support of his contention strongly relied upon a decision of this Court in Mansukhlal Jadavji Darji and Others v. Ahmedabad Municipal Corporation and Others [(1992) 1 SCC 384] and Jaswantsingh Mathurasingh and Another v. Ahmedabad Municipal Corporation and Others [1992 Supp (1) SCC 5]. 9. Mr. Prashant G. Desai, learned counsel appearing on behalf of the respondent no. 1, on the other hand, would submit: (i) Public notices having been issued in terms of the Rule 26 of the Rules, an objection which would nullify the Scheme cannot be entertained at this stage. (ii) Respondent No. 1 Corporation merely being interested in the implementation of the Scheme is entitled to obtain vacant possession from him so as to enable it to deliver it to the respondent No. 3 in whose favour plot No. 165 has been finally allotted. (iii) The Scheme in terms of Sub-section (3) of Section 65 of the Act having become a part of the Act, validity thereof cannot be questioned at this stage as modification of the Scheme, if any, will have to undergo the entire process once over again which is not contemplated under the Act. 10. The Act was enacted to consolidate and amend the law relating to the making and execution of development plans and town planning schemes in the State of Gujarat. 11. It is not necessary for us to delve deep into the statutory scheme. Suffice it to say that Chapter IV of the Act deals with control of development and use of land included in the development plans. Chapter V of the Act provides for town planning schemes. Section 40 of the Act empowers the appropriate authority to make one or more schemes. A declaration of intention to make a scheme is to be notified whereafter a draft scheme may be published. Section 45 provides for reconstitution of the plots, sub-section (2) whereof inter alia enables allotment of a final plot from an original plot by transfer of any adjoining lands. Section 52 contemplates issuance of a notice in a prescribed manner and in the prescribed form. 12. Section 52 of the Act provides for the contents of preliminary and final scheme. It inter alia provides for giving of a notice by the Town Planning Officer as follows: \"(1) In a preliminary scheme, the Town Planning Officer shall,- (i) after giving notice in the prescribed manner and in the prescribed form to the persons affected by the scheme, define and demarcate the areas allotted to, or reserved for, any public purpose, or for a purpose of the appropriate authority and the final plots; (ii) after giving notice as aforesaid, determine in a case in which a final plot is to be allotted to persons in ownership in common, the shares of such persons;\" Further, Sub-section (3) of Section 65, Sections 67 and 68 of the Act read as under: \"65 - Power of Government to sanction or refuse to sanction the scheme and effect of sanction - (3) On and After the date fixed in such notification, the preliminary scheme or the final scheme, as the case may be, shall have effect as if it were enacted in this Act. 67 - Effect of preliminary scheme On the day on which the preliminary scheme comes into force- (a) all lands required by the appropriate authority shall, unless it is otherwise determined in such scheme, vest absolutely in the appropriate authority free from all encumbrances; (b) all rights in the original plots which have been re-constituted into final plots shall determine and the final plots shall become subject to the rights settled by the Town Planning Officer. 68 - Power of appropriate authority to evict summarily On and after the date on which a preliminary scheme comes into force, any person continuing to occupy any land which he is not entitled to occupy under the preliminary scheme shall, in accordance with the prescribed procedure, be summarily evicted by the appropriate authority.\" 13. Rules 26(1), 26(3) and 33 of the Rules read as under: \"26. Procedure to be followed by Town Planning Officer under section 51 and under sub-section (1) of section 52 - (1) For the purpose of preparing the preliminary scheme and final scheme the Town Planning Officer shall give notice in Form H of the date on which he will commence his duties and shall state the time, as provided in Rule 37 within which the owner of any property or right which is injuriously affected by the making of a Town Planning Scheme shall be entitled under section 82 to make a claim before him. Such notice shall be published in the Official Gazette and in one or more Gujarati newspapers circulated within the area of the appropriate authority and shall be pasted in prominent places at or near the areas comprised in the scheme and at the office of the Town Planning Officer. (3) The Town Planning Officer shall, before proceeding to deal with the matters specified in section 52, publish a notice in Form H in the Official Gazette and in one or more Gujarati newspapers circulating within the area of the appropriate authority. Such notice shall specify the matters which are proposed to be decided by the Town Planning Officer and State that all persons who are interested in the plots or are affected by any of the matters specified in the notice shall communicate in writing their objections to the Town Planning Officer within a period of twenty days from the publication of notice in the Official Gazette. Such notice shall also be posted at the officer of the Town Planning Officer and of the appropriate authority and the substance of such notice shall be pasted at convenient places in the said locality. 33. Procedure for eviction under Section 68. - (1) For eviction under section 68, the appropriate authority shall follow the following procedure, viz.: (a) The appropriate authority shall in the first instance serve a notice upon a person to be evicted requiring him, within such reasonable time as may be specified in the notice, to vacate the land. (b) If the person to be evicted fails to comply with the requirement of the notice, the appropriate authority shall depute any Officer or Servant to remove him. (c) If the person to be evicted resists or obstructs the officer or Servant deputed under clause (b) or if he re-occupies the land after eviction, the appropriate authority shall prosecute him under section 188 of the Indian Penal Code.\" 14. Before embarking upon the rival contentions, we may also notice that the provisions of the Bombay Town Planning Rules, 1955 (for short \"the Bombay Rules\") are in pari materia with `the Rules'. Rule 21 of the Bombay Rules provides for the Procedure to be followed by the Town Planning Officer. It makes it obligatory on the part of the officer to give notice of the date on which he will commence his duties and shall state therein the time, within which the owner of any property or rights which is injuriously affected by the making of the town planning scheme shall be advertised in one or more newspapers published in the regional language and circulating within the jurisdiction of the local authority and shall be posted in prominent places at or near the area comprised in the scheme and at the office of the Town Planning Officer. Sub-Rule (3) of Rule 21 of the Bombay Rules provides for serving of a Special notice of at least three clear days' upon the person interested in any plot or in any particular area comprised in the scheme, before the Town Planning Officer proceeds to deal in detail with the portion of the scheme relating thereto. Sub-Rule (4) makes it imperative upon the Town Planning Officer to \"give all persons affected by any particular (sic) of the scheme sufficient opportunity of stating their views and shall not give any decision till he has duly considered their representations, if any\". Sub-Rule (5) provides for recording a brief minute setting out the points at issue and the necessary particulars if during the proceedings, it appears to the Town Planning Officer that there are conflicting claims or any difference of opinion with regard to any part of the scheme. 15. Rules 26 of the Rules do not contemplate service of individual notice. It prescribes service of notice in Form H. A copy of the notice in the said Form is kept at the office of the Town Planning Officer during office hours. Any person affected by the proposal of the Town Planning Scheme is entitled to inspect the Scheme in the office where arrangements for explaining the scheme proposals are made. It furthermore provides that any person entitled to claim damages in terms of Section 82 of the Act should communicate the details of his claim to the Town Planning Officer. Section 81 of the Act enables the State to transfer of right from original to final plot or extinction of such right. A Town Planning Scheme, therefore, envisages calling for objection from the persons concerned for three purposes: (i) in regard to draft scheme; (ii) lodging of any claim for payment of compensation; (iii) participation in the matter of allotment of final plots. 16. We may, however, notice that Rule 21 of the Bombay Rules provides for notice under Sub-rule (3) thereof and a reasonable opportunity of hearing under Sub-Rule (5) thereof. Sub-rule (3) of Rule 21 of the Bombay Rules provides for issuance of a special notice upon the person interested in any plot or in any particular plot comprised in the Scheme. 17. We may also take notice of the decision of this Court in Mansukhlal Jadavji Darji (supra) wherein this Court opined that Sub-rule (3) of Rule 21 of the Bombay Rules was mandatory in nature, subject, of course, to the condition that on the crucial date, viz., when the Town Planning Scheme is notified in the official gazette, he, whether an owner or tenant or sub-tenant, must be in possession of the property. 18. In Jaswantsingh Mathurasingh (supra), it was reiterated that a tenant or a sub-tenant is a person interested and is entitled to notice. In that context, it was held: \"8. The question is whether the tenant or a sub- tenant is a person interested and is entitled to notice. It is obvious that under Section 105 of Transfer of Property Act, a lease creates right or an interest in enjoyment of the demised property and a tenant or a sub-tenant is entitled to remain in possession of the demised property until the lease is duly terminated and eviction takes place in accordance with law. Therefore, a tenant or a sub-tenant in possession of a tenement in the Town Planning Scheme is a person interested within the meaning of Rules 21(3) and (4) of the Rules. But he must be in possession of the property on the crucial date i.e. when the Town Planning Scheme is notified in the official Gazette. Every owner or tenant or a sub-tenant, in possession on that date alone shall be entitled to a notice and opportunity.\" 19. Rule 21(3), however, of the Bombay Rules has been amended in tune with Rule 26 of the Rules. Amended rules are in pari materia with Rule 26 of the Rules. 20. Appellant was a tenant in respect of plot No. 17/8. Plot No. 17/7 was not a plot contiguous thereto. They were separated not only by a road but also by various other plots. 21. It is also not in dispute that the appellant filed an objection in regard to the draft scheme but did not eventually pursue the same. The draft scheme was approved. 867 sq. m. of land had been acquired for public purpose out of the said plot No. 17/8. While the proceedings relating to allotment of final plot were in progress, he even did not file any objection thereto. If he intended to claim any interest in a portion of plot No. 17/8 either for the purpose of obtaining compensation for acquisition of a part of the land or to continue to have possession over 200 sq. m. of land in plot No. 17/8, it was obligatory on his part to take part in the proceedings. Whether irrespective of Rule 26 of the Rules which prescribes for issuance of a general public notice, any special notice upon the appellant was required to be served by the State or by the authority, in our opinion, cannot be gone into by us in these proceedings for the first time. Validity of Rule 26 of the Rules had never been questioned. It had also not been contended that the said Rule is ultra vires Section 52 of the Act. 22. A person interested in continuing to keep possession over a property and/ or a part of the amount of compensation must lay his claim before the appropriate authority at the appropriate stage. If in absence of any such claim filed by the appellant, the authorities have proceeded to finalise allotment of final plot in favour of the respondent Nos. 3 and 4 herein, it is too late in the day to contend that the entire scheme should be re-opened. We would consider the effect of Sub-section (3) of Section 65 of the Act a little later, but, we may at this juncture notice that the respondent No. 3 in whose favour plot No. 165 has been allotted which includes 200 sq. m. of land purported to be in possession of the appellant had nothing to do with the dispute between the appellant and his landlord the respondent no. 4. Respondent No. 4 was in possession of a contiguous plot. Respondent No. 4 was owner of both plot Nos. 17/7 and 17/8. He was, therefore, in his own right entitled to final allotment of some plot. 23. We would, however, assume that it was obligatory on the part of the State to serve a special notice upon the appellant. The question, however, would be : what would be the consequence of non-compliance thereof vis-`- vis the conduct of the appellant himself? 24. A person may waive a right either expressly or by necessary implication. He may in a given case disentitle himself from obtaining an equitable relief particularly when he allows a thing to come to an irreversible situation. 25. Different statutes provide for different manner of service of notice. The Bangalore Development Authority Act, 1976 provides that every person whose name appears in the assessment list or land revenue records shall be served with notice. [See Sureshchandra C. Mehta v. State of Karnataka and Others 1994 Supp (2) SCC 511] In West Bengal Housing Board etc. v. Brijendra Prasad Gupta and Others, etc. [AIR 1997 SC 2745], it was opined that the authority is not required to make a roaming enquiry as to who is the person entitled to notice. 26. We have referred to the said decisions only to show that the requirements in regard to the manner of service of notice varies from statute to statute and there exists a difference between the Bombay Rules and the Rules. 27. We are, however, not unmindful of the fact that a statute of town planning ex facie is not a statute for acquisition of a property. An owner of a plot is asked to part therewith only for providing for better facilities of which he would also be a beneficiary. Every step taken by the State does not involve application of the doctrine of eminent domain. In this case, the appellant did not oppose the draft scheme. It accepted that the State had a right to do so. Existence of a public purpose and increase in the valuation of the property was admitted. There exists a distinction in the action of the planning authority as regards vesting of a property in it and one so as to enable it to create a third party interest vis-`- vis for the purpose of re-allotment thereof. In the former case, the vesting of the land may be held to be an act of acquisition, whereas in the latter, it would be distribution of certain benefits having regard to the purpose sought to be achieved by a statute involving town planning. It was on that legal principle, this Court in State of Gujarat v. Shantilal Mangaldas & Ors. [1969 (3) SCR 341], opined that when a development is made, the owner of the property gets much more than what would have he got, if the same remained undeveloped in the process as by reason thereof he gets the benefit of living in a developed town having good town planning. 28. Section 67 of the Act provides that all lands required by the appropriate authority shall, unless it is otherwise determined in such scheme, vest absolutely in the appropriate authority free from all encumbrances with effect from the date on which the preliminary scheme comes into force. What would be the quantum of payment of compensation therefor is also provided in Section 82 of the Act. It is in the aforementioned situation, a claim is to be made before the authority whenever a notice in Form H is published. If a claim is not filed, the person, who is said to be injuriously affected, does so at its own peril. Had such a claim been filed, the authority before making final allotment could have considered the competing claims wherefor a large number of factors were required to be taken into consideration, viz., the location of the land, the area of the land, the nature of right, etc. 29. When a statute makes an elaborate provision as regards the formalities required to be undergone at every stage by the local authority, the State Government and other authorities concerned in preparing and making the final Town Planning Scheme, the same should be considered to be exhaustively. [See Maneklal Chhotalal & Ors. v. M.G. Makwana & Ors. [(1967) 3 SCR 65] In Maneklal Chhotalal (supra), it was held: \"49. Therefore, having due regard to the substantive and procedural aspects, we are satisfied that the Act imposes only reasonable restrictions, in which case, it is saved under Article 19(5) of the Constitution. The considerations referred to above will also show that the grievance of the petitioners that Article 14 is violated, is also not acceptable.\" [See also Bhikhubhai Vithlabhai Patel & Ors. v. State of Gujarat & Anr. 2008 (4) SCALE 278] 30. We are, however, not oblivious that in a given situation, a question may also arise as to whether the restrictions imposed by a statute are reasonable or not. 31. It is not a case where the State by its acts of omissions and commissions was unjustly enriching itself. It was a dispute between two private parties as regards the right to obtain final allotment; the principles underlying the same are not in dispute. What is in dispute is the distribution of quantum thereof between two competing claimants, viz., landlord and tenant. We do not mean to say that under no circumstances the appellant was entitled to allotment of a portion of the property or mandatory compensation in lieu thereof from the landlord. But, we intend to emphasise that he has lost his right to enforce the same in a public law forum. He has no enforceable claim against the State at this juncture. He may pursue his claim only against the respondent No. 4 in an appropriate proceedings wherein for certain purposes the State or the authorities may also be impleaded as a party. Even if he had a claim he would be deemed to have waived the same for the reasons stated hereinafter. 32. It is not in dispute that: (a) Appellant although filed an objection with regard to the draft scheme, did not choose to pursue it. (b) He did not file objections for re-allotment and did not participate in the proceedings following acquisition instituted by the authorities under the Act. In view of the above, the issue is whether it was open to him to assert his purported right to special notice in respect of the final allotment in the instant case given the fact that he did not pursue his objections to the draft scheme and subsequently did not object/participate during the proceedings for re-allotment. 33. It has been noticed by us hereinbefore that under Rule 26 of the Rules applicable in the instant case, as distinguished from the Bombay Rules (wherein special notice is required), no special notice is mandatorily required to be served. Assuming, however, that it was obligatory for the State to issue notice to the appellant, the question is whether the principle of waiver precludes him from claiming equitable relief in this case due to his earlier conduct which allowed the entire process of acquisition and allotment to become final. We are of the opinion that even if he had any such right, he waived the same. In Halsbury's Laws of England, Volume 16(2), 4th edition, para 907, it is stated: \"The expression `waiver' may, in law, bear different meanings. The primary meaning has been said to be the abandonment of a right in such a way that the other party is entitled to plead the abandonment by way of confession and avoidance if the right is thereafter asserted, and is either express or implied from conduct. It may arise from a party making an election, for example whether or not to exercise a contractual right... Waiver may also be by virtue of equitable or promissory estoppel; unlike waiver arising from an election, no question arises of any particular knowledge on the part of the person making the representation, and the estoppel may be suspensory only... Where the waiver is not express, it may be implied from conduct which is inconsistent with the continuance of the right, without the need for writing or for consideration moving from, or detriment to, the party who benefits by the waiver, but mere acts of indulgence will not amount to waiver; nor may a party benefit from the waiver unless he has altered his position in reliance on it\" As early as 1957, the concept of waiver was articulated in a case involving the late assertion of a claim regarding improper constitution of a Tribunal in Manak Lal v. Dr. Prem Chand [AIR 1957 SC 425] in the following terms: \"It is true that waiver cannot always and in every case be inferred merely from the failure of the party to take the objection. Waiver can be inferred only if and after it is shown that the party knew about the relevant facts and was aware of his right to take the objection. As Sir Johan Romilly M. R. has observed in Vyvyan v. Vyvyan [(1861) 30 Beav. 65, 74; 54 E.R. 813, 817] \"waiver or acquiescence, like election, presupposes that the person to be bound is fully cognizant of his rights, and, that being so, he neglects to enforce them, or chooses one benefit instead of another, either, but not both, of which he might claim\". In The Director of Inspection of Income Tax (Investigation), New Delhi and Another v. Pooran Mal & Sons and Another [(1975) 4 SCC 568] the issue was regarding waiver of benefits under a statute of limitation. It was stated: \"13. We may in this connection refer to the decision in Wilson v. McIntosh. In that case an applicant to bring lands under the Real Property Act filed his case in court under Section 21, more than three months after a caveat had been lodged, and thereafter obtained an order that the caveator should file her case, which she accordingly did. It was held that he had thereby waived his right to have the caveat set aside as lapsed under Section 23. The Privy Council held that the limitation of time contained in Section 23 was introduced for the benefit of the applicant, to enable him to obtain a speedy determination of his right to have the land brought under the provisions of the Act and that it was competent for the applicant to waive the limit of the three months, and that he did waive it by stating a case and applying for and obtaining an order upon the appellant to state her case both, which steps assumed and proceeded on the assumption of the continued existence of the caveat. They referred with approval to the decision in Phillips v. Martin where the Chief Justice said: \"Here there is abundant evidence of waiver, and it is quite clear that a man may by his conduct waive a provision of an Act of Parliament intended for his benefit. The caveator was not brought into Court in any way until the caveat had lapsed. And now the applicant, after all these proceedings have been taken by him, after doubtless much expense has been incurred on the part of the caveator, and after lying by and hoping to get a judgment of the Court in his favour, asks the Court to do that which but for some reasons known to himself he might have asked the Court to do before any other step in the proceedings had been taken. I think he is altogether too late. It is to my mind a clear principle of equity, and I have no doubt there are abundant authorities on the point, that equity will interfere to prevent the machinery of an Act of Parliament being used by a person to defeat equities which he has himself raised, and to get rid of a waiver created by his own acts.\" The legal principle emerging from these decisions is also stated in Craies on Statute Law (6th Edn.) at page 369 as follows: \"As a general rule, the conditions imposed by statutes which authorise legal proceedings are treated as being indispensable to giving the court jurisdiction. But if it appears that the statutory conditions were inserted by the legislature simply for the security or benefit of the parties to the action themselves, and that no public interests are involved, such conditions will not be considered as indispensable, and either party may waive them without affecting the jurisdiction of the court.\" [emphasis supplied] Applying the above principles to the present case, it must be held that the benefit of notice provided under the Act and Rules being for the benefit of the Appellant in which no public interests are involved, he has waived the same. 34. Significantly, a similar conclusion was reached in the case of Krishna Bahadur v. Purna Theatre [(2004) 8 SCC 229], though the principle was stated far more precisely, in the following terms: \"9. The principle of waiver although is akin to the principle of estoppel; the difference between the two, however, is that whereas estoppel is not a cause of action; it is a rule of evidence; waiver is contractual and may constitute a cause of action; it is an agreement between the parties and a party fully knowing of its rights has agreed not to assert a right for a consideration. 10. A right can be waived by the party for whose benefit certain requirements or conditions had been provided for by a statute subject to the condition that no public interest is involved therein. Whenever waiver is pleaded it is for the party pleading the same to show that an agreement waiving the right in consideration of some compromise came into being. Statutory right, however, may also be waived by his conduct.\" [Emphasis supplied] [See also Bank of India v. O.P. Swarnakar (2003) 2 SCC 721] 35. In Ramdev Food Products Pvt. Ltd. v. Arvindbhai Rambhai Patel and Ors. [2006 (8) SCALE 631], this Court observed: \"The matter may be considered from another angle. If the first respondent has expressly waived his right on the trade mark registered in the name of the appellant-Company, could he claim the said right indirectly? The answer to the said question must be rendered in the negative. It is well-settled that what cannot be done directly cannot be done indirectly. The term 'Waiver' has been described in the following words: \"Waiver is the abandonment of a right in such a way that the other party is entitled to plead the abandonment by way of confession and avoidance if the right is thereafter asserted, and is either express or implied from conduct. A person who is entitled to rely on a stipulation, existing for his benefit alone, in a contract or of a statutory provision may waive it, and allow the contract or transaction to proceed as though the stipulation or provision did not exist. Waiver of this kind depends upon consent, and the fact that the other party has acted upon it is sufficient consideration It seems that, in general, where one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, so as to alter his position, the party who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relationship as if no such promise or assurance had been made by him, but he must accept their legal relations subject to the qualification which he has himself so introduced, even though it is not supported in point of law by any consideration. [See 16 Halsbury's Laws (4th edn) para 1471] \" In this view of the matter, it may safely be stated that the appellant, through his conduct, has waived his right to an equitable remedy in the instant case. Such conduct precludes and operates as estoppel against him with respect to asserting a right over a portion of the acquired land in a situation where the scheme in question has attained finality following as a result of the appellant's inaction. 36. Mr. Lalit submits that his client is ready and willing to pay some reasonable amount to the respondent No. 3 in whose favour plot No. 165 has been finally allotted. Issuance of any such direction, in our opinion, is legally impermissible. 37. We, therefore, are of the opinion that in this case, no relief can be granted to the appellant. He may, however, take recourse to such remedy which is available with him in law including one by filing a suit or making a representation before the State. 38. For the reasons aforementioned, the appeal is dismissed. No costs. ...............................J. [S.B. Sinha] ................................J. [V.S. Sirpurkar] New Delhi; May 02, 2008",
        "90856652": "REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION Civil Appeal No.2592 of 2022 (Arising out of Special Leave Petition (C) No.20047 of 2017) MRS. UMADEVI NAMBIAR ...APPELLANT(S) VERSUS THAMARASSERI ROMAN CATHOLIC DIOCESE REP BY ITS PROCURATOR DEVSSIA\u2019S SON REV. FATHER JOSEPH KAPPIL ...RESPONDENT(S) JUDGMENT V. Ramasubramanian 1. Their suit for partition having been decreed by the trial Court but reversed by the High Court in a regular first appeal, the plaintiffs have come up with the above appeal. Signature Not Verified 2. Digitally signed by Jayant Kumar Arora Date: 2022.04.02 We have heard Shri Dushyant A. Dave, learned senior counsel 12:06:46 IST Reason: for the appellant and Shri Thomas P. Joseph, learned counsel for the respondent. 3. The suit schedule property originally belonged to one Ullattukandiyil Sankunni. After his death, the property devolved upon his two daughters, one of whom is the appellant herein. The appellant herein executed a general Power of Attorney on 21.07.1971, registered as Document No.35 of 1971, in favour of her sister Smt. Ranee Sidhan. However, the said power was cancelled on 31.01.1985. But in the meantime, the appellant\u2019s sister was found to have executed four different documents in favour of certain third parties, assigning/releasing some properties. Therefore, the appellant first filed a suit in O.S.No.16 of 1986 followed by another suit in O.S.No.27 of 1988 against the assignees/releasees. Though a preliminary decree was passed in the second suit on 7.01.1989, the appellant came to know later that the assignees/releasees had sold the property to the respondent herein. 4. Therefore, the appellant filed yet another suit in O.S No.130 of 1989, seeking partition and separate possession of her half share in the suit property. The trial Court granted a preliminary decree in favour of the appellant. However, the regular appeal filed by the respondent herein was allowed by a Division Bench of the High Court by the judgment and decree impugned in this appeal. Therefore, the appellant has come up with the above appeal. 5. At the outset, it should be stated that the respondent herein did not dispute the fact that the suit schedule property originally belonged to the father of the appellant and her sister and that the appellant and her sister were entitled to equal shares in the property. But the respondent contested the suit on the grounds inter alia (i) that in view of two prior suits for partition, namely, O.S. No.16 of 1986 and O.S.No.27 of 1988, the suit was barred under Order II Rule 2 of CPC; (ii) that the general Power of Attorney executed by the appellant in favour of her sister, authorized the agent to sign all documents and present them for registration; (iii) that by virtue of the said power, the appellant\u2019s sister transferred the suit schedule properly to four persons, for the purpose of discharging the debts incurred in the family business; (iv) that those transferees, in turn, sold the property to the respondent herein for a valuable consideration; (v) that though the appellant was earlier residing in England, she came back to India and was staying in a house just 1 km. away from the plaint schedule property; (vi) that the appellant was therefore aware of all the transfers including the transfer in favour of the respondent and the development made by the respondent over the suit property; (vii) that, therefore, the appellant is guilty of acquiescence; and (viii) that the respondent has actually developed a commercial complex on the suit property and hence entitled at least to the value of improvements, in the event of a decree being passed. 6. The trial Court framed as many as 23 issues for consideration in the suit. The objection on the basis of Order II Rule 2 of CPC was rejected by the trial Court on the ground that the appellant\u2019s sister had committed a fraud and that the cause of action for the present suit was different from the cause of action for the previous suits. The contention that the appellant was guilty of acquiescence was rejected by the trial Court on a factual finding that the appellant was not aware of the transfer. On an examination of the recitals contained in the Power of Attorney, the trial Court came to the conclusion that the document did not confer any power to sell the property and that, therefore, the appellant\u2019s sister was not entitled to alienate the property. Since the original alienations made in 1981 and 1982 by the appellant\u2019s sister were null and void on account of lack of express power to sell, the subsequent sale made by those alienees in favour of the respondent herein was also held to be invalid. On the basis of these findings, the trial Court decreed the suit, as prayed for. 7. While reversing Judgment and decree of the trial Court, the High Court held: (i) that the failure of the appellant to seek the relief of setting aside the documents of transfer and/or recovery of possession of the property was fatal to her case; (ii) that though the principle behind Order II Rule 2 CPC may not be applicable to suits for partition, the appellant must be held to have had constructive notice of the alienations made by her sister, in view of Section 3 of the Transfer of Property Act, 1882 (hereinafter referred to as \u201cthe Act\u201d); (iii) that once constructive notice is attributed to the appellant, any relief for cancellation of the documents of alienation would have already become time barred, by the time the Power of Attorney was cancelled; (iv) that since the deed of general Power of Attorney filed as Exhibit A\u00ad1 did not contain any express power to sell the suit property, the transferee cannot be held to have exercised \u2018reasonable care\u2019 as required by the proviso to Section 41 of the Transfer of Property Act, 1882; and (v) that despite this fact, the appellant was not entitled to a decree for partition, in view of her failure to seek the cancellation of the alienations, in spite of having constructive notice of the alienations. 8. As could be seen from the judgments of the trial Court and the High Court, the deed of general Power of Attorney executed by the appellant in favour of her sister on 21.07.1971, did not specifically contain any power of sale. Therefore, the trial Court as well as the High Court held in no uncertain terms that the appellant\u2019s sister was not competent to sell the property to the predecessor\u00adin\u00ad interest of the respondent. However, the learned counsel appearing for the respondent argued, (i) that while construing a document, all punctuation marks should be given due weightage; (ii) that the deed of Power of Attorney was drafted by a doyen of the Bar; (iii) that Clause 22 of the deed of Power of Attorney conferred upon the agent, the power to execute and register all documents; (iv) that the power to execute a document and present the same for registration, should be understood to mean the power to execute documents requiring registration in the light of Section 49 of the Registration Act, 1908; and (v) that, therefore, a bonafide purchaser like the respondent should not be made to suffer. 9. But we do not agree with the above submissions of the learned counsel for the respondent. It remains a plain and simple fact that the deed of Power of Attorney executed by the appellant on 21.07.1971 in favour of her sister contained provisions empowering the agent: (i) to grant leases under Clause 15; (ii) to make borrowals if and when necessary with or without security, and to execute and if necessary, register all documents in connection therewith, under Clause 20; and (iii) to sign in her own name, documents for and on behalf of the appellant and present them for registration, under Clause 22. But there was no clause in the deed authorizing and empowering the agent to sell the property. The argument that the deed was drafted by a doyen of the Bar, is an argument not in favour of the respondent. This is for the reason that the draftsman has chosen to include, (i) an express power to lease out the property; and (ii) an express power to execute any document offering the property as security for any borrowal, but not an express power to sell the property. Therefore, the draftsman appears to have had clear instructions and he carried out those instructions faithfully. The power to sell is not to be inferred from a document of Power of Attorney. The trial Court as well as the High Court were ad idem on the finding that the document did not confer any power of sale. 10. In fact the High Court rejected even the refuge sought by the respondent under Section 41 of the Transfer of Property Act which reads as follows: \u201cTransfer by ostensible owner.\u00ad Where, with the consent, express or implied, of the persons interested in immoveable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it: Provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith.\u201d 11. The High Court has held and in our view rightly so, that if the respondent had exercised reasonable care as required by the proviso to Section 41, they could have easily found out that there was no power of sale. 12. Unfortunately after finding (i) that the Power of Attorney did not contain authorization to sell; and (ii) that the respondent cannot claim the benefit of Section 41 of the Act, the High Court fell into an error in attributing constructive notice to the appellant in terms of Section 3 of the Act. The relevant interpretation clause in Section 3 of the Act reads as follows: \u201cInterpretation Clause\u00ad xxxx xxx xxxx \u201ca person is said to have notice\" of a fact when he actually knows that fact, or when, but for wilful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it. Explanation I\u00adWhere any transaction relating to immoveable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or, where the property is not all situated in one sub\u00addistrict, or where the registered instrument has been registered under sub\u00adsection (2) of section 30 of the Indian Registration Act, 1908 (16 of 1908), from the earliest date on which any memorandum of such registered instrument has been filed by any Sub\u00adRegistrar within whose sub\u00addistrict any part of the property which is being acquired, or of the property wherein a share or interest is being acquired, is situated: Provided that\u00ad\u00ad (1) the instrument has been registered and its registration completed in the manner prescribed by the Indian Registration Act, 1908 (16 of 1908) and the rules made thereunder, (2) the instrument or memorandum has been duly entered or filed, as the case may be, in books kept under section 51 of that Act, and (3) the particulars regarding the transaction to which the instrument relates have been correctly entered in the indexes kept under section 55 of that Act. Explanation II.\u00ad\u00adAny person acquiring any immoveable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof. Explanation III.\u00ad\u00adA person shall be deemed to have had notice of any fact if his agent acquires notice thereof whilst acting on his behalf in the course of business to which that fact is material: Provided that, if the agent fraudulently conceals the fact, the principal shall not be charged with notice thereof as against any person who was a party to or otherwise cognizant of the fraud.\u201d 13. Two things are important for the above interpretation clause to come into effect. They are: (i) wilful abstention from an enquiry or search; and (ii) gross negligence. Explanation I and Explanation II under the above interpretation clause are applicable to the person acquiring an immovable property, the transaction relating to which is required by law to be effected by a registered instrument. The High Court has turned the above interpretation clause upside down and held the Principal in relation to a deed of Power of Attorney, to have had constructive notice in terms of Section 3, of a sale effected by the agent. 14. The reasoning given by the High Court for holding that the appellant ought to have challenged the alienations, is that the appellant was out of possession. Here again, the High Court failed to appreciate that the possession of an agent under a deed of Power of Attorney is also the possession of the Principal and that any unauthorized sale made by the agent will not tantamount to the Principal parting with possession. 15. It is not always necessary for a plaintiff in a suit for partition to seek the cancellation of the alienations. There are several reasons behind this principle. One is that the alienees as well as the co\u00ad sharer are still entitled to sustain the alienation to the extent of the share of the co\u00adsharer. It may also be open to the alienee, in the final decree proceedings, to seek the allotment of the transferred property, to the share of the transferor, so that equities are worked out in a fair manner. Therefore, the High Court was wrong in putting against the appellant, her failure to challenge the alienations. 16. The learned counsel for respondent relied upon the decision of this Court in Delhi Development Authority vs. Durga Chand Kaushish1, in support of his argument about the rule of interpretation to be adopted while construing Exhibit A\u00ad1, the deed of general Power of Attorney. He also relied upon the Judgment of this Court in Syed Abdul Khader vs. Rami Reddy and Others2 for driving home the question as to how the deed of Power of Attorney should be construed. 17. We do not know how the ratio laid down in the aforesaid 1 (1973) 2 SCC 825 2 (1979) 2 SCC 601 decisions could be applied to the advantage of the respondent. As a matter of plain and simple fact, Exhibit A\u00ad1, deed of Power of Attorney did not contain a clause authorizing the agent to sell the property though it contained two express provisions, one for leasing out the property and another for executing necessary documents if a security had to be offered for any borrowal made by the agent. Therefore, by convoluted logic, punctuation marks cannot be made to convey a power of sale. Even the very decision relied upon by the learned counsel for the respondent, makes it clear that ordinarily a Power of Attorney is to be construed strictly by the Court. Neither Ramanatha Aiyar\u2019s Law Lexicon nor Section 49 of the Registration Act can amplify or magnify the clauses contained in the deed of Power of Attorney. 18. As held by this Court in Church of Christ Charitable Trust and Educational Charitable Society vs. Ponniamman Educational Trust3 the document should expressly authorize the agent, (i) to execute a sale deed; (ii) to present it for registration; and (iii) to admit execution before the Registering Authority. 3 (2012) 8 SCC 706 19. It is a fundamental principle of the law of transfer of property that \u201cno one can confer a better title than what he himself has\u201d (Nemo dat quod non habet). The appellant\u2019s sister did not have the power to sell the property to the vendors of the respondent. Therefore, the vendors of the respondent could not have derived any valid title to the property. If the vendors of the respondent themselves did not have any title, they had nothing to convey to the respondent, except perhaps the litigation. 20. Therefore, the appeal is allowed, the impugned judgment of the High Court is set aside and the Judgment and preliminary decree passed by the trial Court are restored. There will be no order as to costs. \u2026..\u2026\u2026\u2026\u2026....................J. (Hemant Gupta) .\u2026..\u2026\u2026\u2026......................J (V. Ramasubramanian) APRIL 1, 2022 NEW DELHI."
    },
    "fold_2": {
        "184861797": "IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION APPELLATE SIDE Before: The Hon'ble Justice Hiranmay Bhattacharyya C.O. 3346 of 2018 The Kolkata Municipal Corporation Vs. Smt. Kajari Banerjee For the petitioner : Mr. Alok Kr. Ghosh, Mr. S.K. Debnath..... advocates For the opposite party : Mr. R.N. Chakraborty, Mr. M. Ahmed............ advocates Heard on : 18.12.2020 Judgment on : 22.12.2020 Hiranmay Bhattacharyya, J.: This application under Article 227 of the Constitution of India is at the instance of Kolkata Municipal Corporation and is directed against the order dated March 27, 2018 passed by the Learned Municipal Assessment Tribunal, Kolkata Municipal Corporation, Second Bench in M.A. Appeal no. 947 of 2012 thereby modifying the order of the Hearing Officer and assessing the annual valuation in respect of the property of the opposite party herein. This case had a chequered career. The Hearing Officer by an order dated March 24, 2012 assessed the annual valuation of the premises in question at Rs. 23,500/- with effect from fourth quarter of 2009-10. Previously, the opposite party herein preferred an appeal being M.A. Appeal no. 947 of 2012 challenging the aforesaid order dated March 24, 2012 passed by the hearing officer. The Learned Municipal Assessment Tribunal by an order dated February 16, 2015 allowed the said appeal upon holding that the reasonable rent of the premises in question should be 1.10 per square feet per month. Kolkata Municipal Corporation challenged the aforesaid order dated February 16, 2015 before this Hon'ble Court by filing an application under Article 227 of the Constitution of India being C.O. no. 2623 of 2017. By an order dated December 18, 2017, a coordinate bench of this court was pleased to allow the Civil Order No. 2623 of 2017 by setting aside the order dated February 16, 2015 and remanding the matter to the Tribunal for its fresh consideration in accordance with law within the time limit stipulated therein. After remand the Learned Tribunal by an order dated March 27, 2018 allowed the said appeal being M.A.A. 947 of 2012 in part thereby modifying the order passed by the Hearing Officer and assessing the annual valuation in respect of the property in question. By the order impugned the Learned Tribunal has reduced the annual valuation fixed by the Hearing Officer and has assessed the same on the basis of the materials placed by the respective parties before the learned Tribunal. Kolkata Municipal Corporation preferred the instant civil revisional application under Article 227 of the Constitution of India being dissatisfied with the annual valuation assessed by the learned Tribunal. Mr. Aloke Ghosh, learned Advocate appearing on behalf of the petitioner has contended that the learned Tribunal below acted illegally and with material irregularity in reversing the finding of the Hearing Officer by assessing the annual valuation of the property in question by taking the annual valuation of a property assessed by the Tribunal in M.A.A. no. 272 of 1996 as the basis. He contends that the learned Tribunal below relied upon a judgment passed in respect of other premises for the purpose of assessing the Annual Valuation without ascertaining as to whether the premises which was the subject matter in M.A.A. 272 of 1996 is identical and comparable with the premises in question. Mr. Ghosh further contends that the assessment period in respect of the property involved in M.A.A. no. 272 of 1996 is fourth quarter of 1993-94 whereas the assessment period of the property in question is fourth quarter of 2009-10. Thus, according to Mr. Ghosh, when there is a long gap of sixteen years in between the assessment period of the case relied upon by the opposite party herein before the Tribunal and the assessment period of the premises in question, the learned Tribunal ought not to have accepted the valuation of the referred case as the basis for assessing the annual valuation of the property in question. Mr. Ghosh also contends that the annual valuation of a premises should be fixed as per the provisions contained in section 174 of the Kolkata Municipal Corporation Act., 1980 ( for short \"the said Act\"). According to him, the learned Tribunal acted illegally and with material irregularity by assessing the annual valuation of the property in question by comparing it with the valuation fixed by the learned Tribunal in respect of other premises. Mr. Ghosh further contends that the learned Tribunal acted illegally and with material irregularity by taking the annual valuation fixed in respect of an old premises as the basis for assessing the annual valuation of the premises in question, which is a newly constructed one. He contends that the procedure adopted by the Tribunal by applying the Mayor's guidelines dated February 8, 1986 for arriving at the annual valuation of the premises in question by taking the annual valuation of an old premises as the basis is not permissible in law. According to him the aforesaid Mayor's guidelines can be applied only in respect of the self-same premises and cannot be applied to arrive at a conclusion in respect of a different premises. Mr. Ghosh contends that the initial onus is upon the assessee to show that the valuation proposed by the Kolkata Municipal Corporation is not correct by producing the materials on record. Once such initial onus is discharged, the onus shifts upon the Municipal Authority to place other materials showing the claim of the assessee placed before the Hearing Officer was wrong. He contends that the assessee failed to discharge her onus in the instant case. In support of his submission that the initial onus lies upon the assessee, he relies upon a judgment in the case of Calcutta Municipal Corporation vs. Kapoor and Company Private Limited reported at 2002(2) CHN 377. Mr. Ghosh further contends that the order of the Tribunal is an unreasoned one and the same is liable to be set aside. He refers to the following unreported judgments of co-ordinate benches of this court in support of his contention that an unreasoned order passed by the Tribunal is liable to be set aside under Article 227 of the Constitution of India. (i) Judgment dated 12.12.2018 passed in CO no. 3368 of 2017 (the Kolkata Municipal Corporation vs. Sri Vivek Kumar Agarwal and Another) (ii) Order dated 05.10.2018 passed in CO 2353 of 2017 the Kolkata Municipal Corporation vs. Rakesh Sarkar (iii) Order dated 11.03.2019 passed in CO no.1747 of 2018 (Kolkata Municipal Corporation vs. Smt. Mallika Pal) (iv) Judgment dated 14.08.2018 passed in CO no. 936 of 2018 (Radhyshyam Bansal vs. The Kolkata Municipal Corporation and others) Mr. Chakraborty, learned advocate for the assessee/ opposite party herein has seriously disputed the contentions of Mr. Ghosh. According to Mr. Chakraborty, the Municipal authority did not produce the records in its possession in respect of the premises in question apart from a copy of the Inspection Book of the assessment period in question. He contends that the municipal authority also relied upon the original proposal (Exhibit A) which is the basis of determination of valuation by the Hearing Officer. According to him the valuation proposed by the municipal authority is without any basis. The assessee filed the written objection before the Hearing Officer disputing the proposed valuation. The assessee discharged her onus as to what could be the reasonable rent for the premises in question by producing a copy of the judgment passed by the Tribunal in M.A.A. 272 of 1996 in respect of a premises which is situated in the vicinity. He contends that the learned Tribunal after considering the materials on record assessed the annual valuation by applying the guidelines framed by the Hon'ble Supreme Court of India in the case of India Automobiles (1960) Ltd. vs. Calcutta Municipal Corporation and Another, reported at (2002) 3 SCC 388. Mr. Chakraborty further refers to two judgments of coordinate benches of this court in the case of Kolkata Municipal Corporation vs. Smt. Shibani Mukherjee, reported at 2017 (3) CLJ (Cal) 593 and Kolkata Municipal Corporation vs. Sri Rama Prasanna Mitra, reported at (2016) 4 WBLR (Cal) 621 and contends that when the Tribunal after considering the materials produced before it had arrived at a conclusion and there is no laches in the decision-making process, the order passed by the Tribunal may not be interfered with. I have heard the learned advocates for the parties and have considered the materials on record. After going through the provisions of the said Act and the Calcutta Municipal Corporation Taxation Rules,1987 (for short, 'the said rules'), I find that the annual valuation should be fixed by the Hearing Officer after hearing the objection from the assessee. Such valuation has to be assessed in accordance with the provisions contained in Section 174 of the said act. The municipal authority proposed the valuation of Rs. 29,170/- in respect of the premises in question with effect from the fourth quarter of 2009-10. The assessee challenged the aforesaid proposed valuation by filing an objection. The Hearing Officer fixed the annual valuation of the premises in question at Rs. 23,500/- by passing the following order on March 24, 2012- \"R.O is present. Heard both sides A.A.C & R.O written objection are considered A.V is fixed at Rs. 23,550/-\" The said act casts a duty upon the Hearing Officer to make an assessment in accordance with law. The Hearing Officer while disposing of the objection filed by the assessee is statutorily obliged of follow the principles of natural justice. Assignment of reason is one limb of the principles of natural justice. The order passed by the Hearing Officer is an appealable one under Section 189 (5) of the said act before the Municipal Assessment Tribunal. When an unreasoned order is passed by the Hearing Officer, the Tribunal while adjudicating the appeal against such an order would feel great difficulty in adjudicating the same. As such the Hearing Officer is obliged to disclose the reasons for arriving at the conclusion. In the instant case, the order passed by the Hearing Officer failed to disclose any reasons for fixing the annual valuation at Rs. 23,550/-. There is no consideration whatsoever of the objections raised by the assessee before the Hearing Officer. Thus, the learned Tribunal was justified in not accepting the valuation fixed by the Hearing Officer. The Hon'ble Supreme Court in the case of India Automobile (supra) held that while determining the rents on the basis of reasonableness, prevalent rate of rent of lands and building in the vicinity of the property being assessed is one of the relevant considerations. The Hon'ble Supreme Court in the said reports held as- \"23. .....................The 1980 Act, therefore, requires application of mind by the municipal authorities to determine the rents on the basis of reasonableness by keeping into account all relevant circumstances including the actual rent received by the owner, hypothetical standard rent, the rent being received by the tenant from his sub-tenant and other relevant consideration, such as prevalent rate of rent of lands and building in the vicinity of the property being assessed............\" The municipal authority took into consideration the reasonable rent at Rs. 3.00/- per square feet for the covered area and Rs. 1.00/- per square feet for the roof. The municipal authority failed to justify the basis of taking the aforesaid rates of reasonable rent. The proposal of the municipal authority was thus without any basis as has been rightly held by the learned Tribunal in the impugned order. There is no dispute to the proposition of law laid down in the case of Kapoor (supra) that the initial onus is upon the assessee to show what is the actual gross annual rent including service charges which could be reasonably expected from the premises in question while valuation is assessed in accordance with the provisions contained in Section 174 of the said act. Rule 19 (6) of the said rules empowers the Municipal Assessment Tribunal to allow a party to produce evidence. The assessee produced the certified copy of the judgment of the Tribunal in M.A.A. 272 of 1996 as an evidence of the expected annual rent prevailing in the locality. Thus, the assessee discharged the initial onus by producing evidence in this regard. The municipal authority also produced copies of the judgments of the Tribunal in M.A.A no. 989 of 2005 and M.A.A. no. 1008 of 2009 as evidence in support of the expected annual rent prevailing in the locality. The decision of the Tribunal in M.A.A. no. 272 of 1996 is in respect of a flat at premises no. 110, Hazra Road within Ward no. 84 of the Kolkata Municipal Corporation. The judgment of the Tribunal in M.A.A. 989 of 2005 is in respect of Nakuleswar Bhattacharjee lane within the same ward. The judgment of the Tribunal M.A.A. no. 1008 of 2009 is in respect of premises on Rashbehari Avenue also within the same ward. The premises in question is a flat situated on Hazra Road within ward no. 84 of the Kolkata Municipal Corporation. The premises of the assessee and the premises which was the subject matter in M.A.A. no. 272 of 1996 are both situated on Hazra Road. The prevalent rate of rent of lands and building in the vicinity of the property being assessed is a relevant consideration for determination of annual valuation of a property as held in India Automobiles (supra). The proposal being the exhibit A is without any basis. The only evidence which were before the Tribunal for the purpose of assessment of the annual valuation of the property in question were the judgments of the Tribunal produced by the parties as evidence of the expected annual rent prevailing in the locality. The municipal commissioner is the custodian of records for the purpose of assessment of annual valuation and is under an obligation to produce the records in connection therewith. It is also not in dispute that several directions were passed by the Tribunal upon the municipal commissioner to produce the records in connection with the instant matter. For reasons best known to the municipal authority, no evidence has been produced from their end to show the prevailing reasonable rent in the locality namely Hazra Road in the instant case. The only evidence that was available before the Tribunal with regard to the prevailing rate of rent on Hazra Road was the judgment passed by the Tribunal in M.A.A. no. 272 of 1996. The Tribunal was thus justified in accepting the rate of rent fixed in M.A.A. 272 of 1996 as the basis for calculation of the annual valuation in the instant case. The decision of the Tribunal in M.A.A. no 272 of 1996 fixing the reasonable rent in respect of a flat on Hazra Road was with effect from fourth quarter of 1993-94 whereas the valuation of the premises of the assessee in the instant case is with effect from fourth quarter of 2009-10. The Learned Tribunal was justified in enhancing the valuation proportionately by applying the guidelines given in the Mayor's order dated February 8, 1986 in the absence of any other evidence on record. The Tribunal cannot be faulted with for enhancing the annual valuation proportionately by applying the Mayor's order in the instant case. The premises of the opposite party herein is a new construction and the premises which is the subject matter of M.A.A. 272 of 1996 is an old one, the learned Tribunal assessed the reasonable rent of the premises in question at Rs. 1.10/- per square feet per month for the covered area and Rs. 0.55/- per square feet per month for the roof area with effect from fourth quarter of 2009-10. The annual valuation fixed by the Tribunal cannot be said to be without any basis. Though there was an element of guess- work in assessing the annual valuation of the property in question but the same was inevitable in the circumstances of the instant case and the municipal authority was wholly responsible for the same as they have withheld the best evidence. The assessment of annual valuation made by the Tribunal has a reasonable nexus to the materials available on record and as such the same cannot be said to be an arbitrary one. There is also no laches in the decision-making process. It has been held by a coordinate bench of this court in Shibani Mukherjee (supra) that no interference under Article 227 of the Constitution of India is called for if the court finds no laches in the decision-making process. It has also been held by this court in Ramaprasanna (supra) that in the absence of any material produced by the municipal authority to show that the annual valuation would have been much higher than what has been assessed by the Municipal Assessment Tribunal and the Municipal Tribunal has decided the annual valuation of the premises on the basis of the materials on record, the order passed by the Tribunal does not call for any interference. The judgments cited by the opposite party squarely applies to the facts of the instant case. Now, I propose to deal with the decisions relied upon by Mr. Ghosh. In the case of Mallika Pal (supra) the order of the Municipal Assessment Tribunal was set aside on the ground that the learned Tribunal reduced the valuation without assigning any reasons therefore. In the case of Radhyshyam Bansal (supra) the order of the Municipal Assessment Tribunal was set aside and the matter was sent back on remand to the Tribunal as the learned Tribunal mechanically affirmed the unreasoned assessment of annual rent made by the Hearing Officer and also that the yardsticks for assessment of the annual rent fixed by the Hon'ble Supreme Court of India in various judgments was not followed by the Tribunal. In Rakesh Sarkar (supra) a coordinate bench of this court was pleased to set aside the order passed by the Municipal Assessment Tribunal as the same was an unreasoned one. In the case of Vivek Kumar Agarwal (supra) a coordinate bench of this court was pleased to set aside the order passed by the Tribunal as the same was an unreasoned one and also that the Tribunal being a quasi-judicial authority did not follow the procedures for disposal of an appeal. In the instant case the Learned Tribunal followed the procedures laid down under the said act and the said rules while deciding the appeal against the order passed by the Hearing Officer. The Tribunal allowed the parties to produce evidences in support of their respective cases in appeal. The Tribunal arrived at a valuation after taking into consideration the materials on record and by supplying cogent reasons in support of the conclusion arrived at. The yardsticks framed by the Hon'ble Supreme Court of India for determination of the annual valuation of the property in question have also been followed by the Tribunal in the instant case. For the reasons as aforesaid, the decisions relied upon by Mr. Ghosh do not have any manner of application in the instant case. In view of the reasons as aforesaid, I am of the view that the impugned order does not suffer from any infirmity warranting interference under Article 227 of the Constitution of India. C.O. no. 3346 of 2018 is dismissed without, however, any order as to costs. Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties on priority basis. (Hiranmay Bhattacharyya, J.)",
        "51061623": "REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2760 OF 2010 Indian Bank and another \u2026Appellants Versus Mahaveer Khariwal \u2026Respondent JUDGMENT M.R. SHAH, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 02.02.2009 passed by the Division Bench of the High Court of Delhi at New Delhi in Letters Patent Appeal No. 246 of 2007, by which the Division Bench has allowed Signature Not Verified the said appeal preferred by the respondent herein and has Digitally signed by ARJUN BISHT Date: 2021.01.22 16:09:02 IST Reason: quashed and set aside the judgment and order passed by the learned Single Judge and has quashed and set aside communication dated 20.04.2004 of the bank rejecting the application for voluntary retirement and has directed the appellant\u00adbank to release retiral dues of the respondent in accordance with the Pension Regulations, 1995 with simple interest at the rate of 9% per annum from the date of filing of writ petition, the employer\u00adbank has preferred the present appeal. 2. The facts leading to the present appeal in nutshell are as under: That the respondent herein \u2013 original writ petitioner \u2013 employee (hereinafter referred to as the \u2018employee\u2019) was working with the appellant bank \u2013 employer (hereinafter referred to as the \u2018employer\u2019), who was promoted as Chief Manager SMG\u00adIV. In March, 1998, he was transferred and posted as Chief Manager, Colombo Branch, Colombo. Thereafter, by order dated 13.05.2013, he was transferred from Colombo overseas branch to the Defence Colony Branch, New Delhi as Chief Manager (BM). The employee applied for 30 days\u2019 leave to visit London as his son was admitted in the hospital. Thereafter, the employee wrote to the employer seeking extension of leave. The application for leave as well as the application for extension of leave were refused by the employer and the employee was directed to report on duty at Defence Colony Branch, New Delhi. That on 21.01.2004, the employee submitted an application seeking voluntary retirement from the services of the employer in accordance with Circular No. 32/97\u00ad98 dated 15th July, 1997 and the format given by the employer for submitting the notice of voluntary retirement. In the application for voluntary retirement, the employee requested for waiver of three months\u2019 notice, as required under Regulation 29 of the Indian Bank Employees Pension Regulations, 1995 (hereinafter referred to as \u2018Pension Regulations, 1995\u2019) and requested/authorised the employer to deduct the salary of the notice period from out of the amount payable by the employer on retirement. The employer vide letter dated 20.04.2004, which was served on the employee on 23.04.2004, rejected the request of the employee for voluntary retirement on the ground that the employee was not eligible under Pension Regulations, 1995. 3. Being aggrieved by the rejection of the application for voluntary retirement, the employee preferred Writ Petition (C) No. 16972 of 2005. One another prayer was for a direction to the employer to reimburse the educational expenses for the son of the employee, who had been sent to Singapore for his education while he was posted at Colombo. One another prayer was for grant of traveling allowance bills for the journey from Colombo to New Delhi, which was declined by the employer on account of delay in submitting the bills. The learned Single Judge by judgment and order dated 11.10.2006 dismissed the writ petition so far as challenge to the rejection of his voluntary retirement application vide communication dated 20.04.2004. However, granted the prayers for traveling allowance bills and educational expenses. 4. Feeling aggrieved and dissatisfied with the judgment and order passed by the learned Single Judge in dismissing the writ petition with respect to his prayer to quash the letter dated 20.04.2004 rejecting his request for voluntary retirement, the employee preferred Letters Patent Appeal before the Division Bench of the High Court. The Division Bench, by the impugned judgment and order, has allowed the said Letters Patent Appeal and has quashed and set aside the letter dated 20.04.2004 and has directed the employer to release retiral dues of the employee in accordance with Pension Regulations, 1995. 5. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the Division Bench of the High Court, the employer has preferred the present appeal. 6. Shri Ravi Sikri, learned Senior Advocate has appeared on behalf of the employer and Shri Sanjeev Kumar, learned Advocate has appeared on behalf of the employee. 6.1 Shri Ravi Sikri, learned Senior Advocate appearing on behalf of the employer has made the following submissions, assailing the impugned judgment and order passed by the Division Bench: i) that the High Court has not properly appreciated Regulation 29 of the Pension Regulations, 1995 in its true perception; ii) that the High Court has not properly appreciated the fact that as per Regulation 29, a request for voluntary retirement by an employee requires permission/acceptance of the employer concerned; iii) that vide communication dated 20.04.2004, the application of the employee for voluntary retirement was rejected within three months from the date of submitting the voluntary retirement application and therefore there could not be a deemed acceptance of voluntary retirement; that what is relevant is taking the decision within three months and not the service of the decision on the application for voluntary retirement. It is submitted that in the present case, the decision was taken within a period of three months. iv) that the High Court has failed to appreciate that an employee who seeks voluntary retirement is to give three months\u2019 mandatory notice in writing to enable the employer to make necessary arrangements for an alternate hand in place of the employee seeking voluntary retirement. It is submitted that in the present case, three months\u2019 mandatory notice was not given and therefore his application for voluntary retirement was defective to that extent. It is submitted that therefore the employer rightly rejected his application for voluntary retirement which was not in consonance with the Pension Regulations, 1995; v) that the High Court has failed to appreciate that the employee\u2019s offer of surrendering three months salary in lieu of mandatory notice period could not be considered to be a valid application for waiver of the three months\u2019 notice requirement; vi) that the High Court has erred in holding that the employee was, in fact, transferred to the foreign branch and was not sent on deputation. It is submitted that as such the respondent was on deputation at the overseas branch at Colombo at the relevant point of time and therefore as per Regulation 29(1) of the Pension Regulations, 1995, the employee was not eligible to apply for voluntary retirement unless after having been transferred or having returned to India, he has resumed charge of the post in India and has served for a period of not less than one year. It is submitted that therefore the employee did not fulfil the statutory requirement of serving for a period of one year after returning to India, as contemplated under Regulation 29(1); vii) It is submitted that as such after rejection of the application for voluntary retirement, the employer initiated departmental proceedings against the employee for his unauthorised absence from 26.11.2003 to 19.01.2004 and from 22.01.2004 and the disciplinary authority imposed the penalty of compulsory retirement on the employee. It is submitted that therefore the Division Bench of the High Court ought not to have allowed the appeal. Making the above submissions, it is prayed to allow the present appeal and quash and set aside the impugned judgment and order passed by the Division Bench and restore the judgment and order passed by the learned Single Judge and restore the decision of the bank dated 20.04.2004 rejecting the application of the employee for voluntary retirement. 7. Shri Sanjeev Kumar, learned Advocate appearing on behalf of the employee has supported the impugned judgment and order passed by the Division Bench of the High Court. It is submitted that the Division Bench has rightly set aside the communication dated 20.04.2004 by which the application of the employee for voluntary retirement was rejected. It is submitted that the Division Bench of the High Court has rightly interpreted Regulation 29 and has rightly considered that the bar under Regulation 29(1) shall not be applicable insofar as Regulation 29(1) is concerned, as the employee was not on deputation at Colombo Branch but was on transfer. It is submitted that the question is not when the decision was served upon the employee, but the question is whether the rejection of the voluntary retirement application vide communication dated 20.04.2004 was legal, just and proper and was in consonance with Regulation 29 or not. It is submitted that on true interpretation of Regulation 29, the High Court has rightly allowed the appeal and has rightly quashed and set aside the communication dated 20.04.2004. 8. We have heard the learned counsel for the respective parties at length. It is not in dispute that in the present case the employee submitted the voluntary retirement application on 21.01.2004. In the application itself, the employee requested for waiver of three months\u2019 notice and requested to deduct the salary amount of the notice period from out of the amounts payable to him by the employer on retirement. It is not in dispute and it cannot be disputed that the notice of voluntary retirement requires acceptance by the appointing authority. However, as per proviso to Sub\u00adRegulation 2 of Regulation 29, in case the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the notice, the retirement shall become effective from the date of expiry of the said notice period. In the present case, on the 90 th day vide communication dated 20.04.2004 the application of the employee for voluntary retirement was rejected without assigning any specific reasons and by observing that the employee is not eligible for voluntary retirement under Pension Regulations, 1995. The said communication was sent to the employee on the very date, i.e., 20.04.2004, however the same was received by the employee on 23.04.2004. The learned Single Judge dismissed the writ petition so far as challenge to the communication dated 20.04.2004 is concerned. However, on appeal, by the impugned judgment and order, the Division Bench has set aside the communication dated 20.04.2004 by which the request of the employee for voluntary retirement from the service of the employer came to be rejected. Therefore, the short question which is posed for the consideration before this Court is, whether the rejection of the request of the employee for voluntary retirement vide communication dated 20.04.2004 was legal and in consonance with Regulation 29 of the Pension Regulations, 1995 or not. 9. While considering the aforesaid question, Regulation 29 is required to be referred to, which reads as under: \u201c29. Pension on Voluntary Retirement:\u00ad 1) On or after the first day of November, 1993, at any time after an employee has completed twenty years of qualifying service he may, by giving notice of not less than three months in writing to the appointing authority retire from service: Provided that this sub\u00adregulation shall not apply to an employee who is on deputation or on study leave on abroad unless after having been transferred or having returned to India he has resumed charge of the post in India and has served for a period of not less than one year: Provided further that this sub\u00adregulation shall not apply to an employee who seeks retirement from service for being absorbed permanently in an autonomous body or a public sector undertaking or company or institution or body, whether incorporated or not to which he is on deputation at the time of seeking voluntary retirement: Provided that this sub\u00adregulation shall not apply to an employee who is deemed to have retired in accordance with clause (l) of regulation 2. (2) The notice of Voluntary retirement given under sub\u00ad regulation (1) shall require acceptance by the appointing authority: Provided that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period. (3)(a) An employee referred to in sub\u00adregulation (1) may make a request in writing to the appointing authority to accept notice of Voluntary Retirement of less than three months giving reasons thereof; (b) On receipt of a request under clause (a), the appointing authority may, subject to the provisions of sub\u00adregulation (2), consider such request for the curtailment of the period of the notice of three months on merits and if it is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, the appointing authority may relax the requirement of notice of three months on the condition that the employee shall not apply for Commutation of a part of the pension before the expiry of the notice of three months. (4) An employee, who has elected to retire under this regulation and has given necessary notice to that effect to the appointing authority. shall be precluded from withdrawing his notice except with specific approval of such authority; Provided that the request for such withdrawal shall be made before the intended date of his retirement. (5) The qualifying service of an employee retiring voluntarily under this regulation shall be increased by a period not exceeding five years, subject to the condition that the total qualifying service rendered by such employee shall not in any case exceed thirty\u00adthree years and it does not take him beyond the date of superannuation, (6) The pension of an employee retiring under this regulation shall be based on the average emoluments as defined under clause (d) of regulation 2 of these regulations and the increase. not exceeding five years in his qualifying service. shall not entitle him to any notional fixation of pay for the purpose of calculating his pension.\u201d 10. On a fair reading of Regulation 29, it emerges that an employee is entitled to apply for voluntary retirement after he has completed 20 years of qualifying service. He can apply for voluntary retirement by giving notice of not less than three months in writing to the appointing authority (Regulation 29(1)). However, as per proviso to Sub\u00adRegulation (1) of Regulation 29, Sub\u00adRegulation (1) of Regulation 29 shall not apply to an employee who is on deputation or on study leave on abroad unless after having been transferred or having returned to India he has resumed charge of the post in India and has served for a period of not less than one year. The said proviso shall be dealt with and considered hereinbelow. It also appears that as per Sub\u00adRegulation (2) of Regulation 29, the notice of voluntary retirement given under Sub\u00adRegulation (1) shall require acceptance by the appointing authority. However, as per the proviso to Sub\u00adregulation (2), the appointing authority has to take a decision before the expiry of the period specified in the notice. It provides that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the notice, there shall be deemed acceptance of the voluntary retirement application and the retirement shall become effective from the date of expiry of the period mentioned in the notice. However, at the same time, as per Sub\u00adRegulation 3(a), an employee may make a request in writing to the appointing authority for waiver of the three months\u2019 notice and may make a request to accept the notice of voluntary retirement of less than three months giving reasons thereof. Sub\u00adRegulation 3(b) provides that on receipt of a request for waiver of three months\u2019 notice as per Sub\u00adRegulation 3(a), the appointing authority may, subject to the provisions of Sub\u00ad Regulation (2), consider such request for the curtailment of the period of notice of three months on merits and if it is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, the appointing authority may relax the requirement of notice of three months on the condition that the employee shall not apply for commutation of a part of the pension before the expiry of the notice of three months. In the present case, the application of the employee submitting the voluntary retirement application with a request for curtailment of notice of three months was absolutely in consonance with Regulation 29. The request made by the employee for curtailment of the period of notice of three months was required to be considered by the appointing authority on merits and only in a case where it is found that the curtailment of the period of notice may cause any administrative inconvenience, the request for curtailment of the period of three months\u2019 notice can be rejected. On considering the communication dated 20.04.2004 rejecting the application of the employee for voluntary retirement, it does not reflect any compliance of Sub\u00adRegulation 3(b) of Regulation 29. As such, no reasons whatsoever have been assigned/given except stating that the request is not in accordance with Pension Regulations, 1995. Even otherwise, it is required to be noted that even the communication dated 20.04.2004 was on the last day of the third month, i.e., 90 th day from the date of submitting the voluntary retirement application. Therefore, there was no reason to reject the prayer of curtailment of the period of notice considering the grounds mention in Sub\u00ad Regulation 3(b) of Regulation 29. Be that as it may, the rejection of the application for voluntary retirement was not on the ground that notice of three months is not given. The request made by the employee for curtailment of notice of three months was also not considered on merits. Therefore, as rightly held by the Division Bench of the High Court, the application for voluntary retirement was absolutely in consonance with Regulation 29 and that the rejection was bad in law and contrary to Regulation 29. The Division Bench of the High Court is absolutely justified in quashing and setting aside the communication dated 20.04.2004. We are in complete agreement with the view taken by the Division Bench. 11. Now so far as the submission on behalf of the employer that the employee was not eligible for voluntary retirement in view of proviso to Sub\u00adRegulation (1) of Regulation 29 as after he returned to India from Colombo Branch he did not serve for a period of not less than one year is concerned, there is a specific finding given by the Division Bench that the said proviso shall not be applicable to the facts of the case on hand as in the present case the employee was on transfer to Colombo Branch and was not on deputation. If we look at order dated 19.03.1998, it cannot be said that the employee was sent on deputation as Chief Manager, Colombo Branch. It says that he is posted as Chief Manager, Colombo Branch. Even when he was relieved from Colombo Branch to join at Defence Colony Branch, New Delhi, in the communication dated 25.08.2003 (Annexure P5), it speaks about the transfer order dated 13.05.2003. It is not the order of repatriation. Therefore, proviso to Sub\u00adRegulation (1) to Regulation 29 shall not be applicable. 12. Now so far as the submission on behalf of the employer that the acceptance or non\u00adacceptance of the voluntary retirement application is required to be taken before the expiry of the period specified in the notice, i.e., in the present case three months and the same was taken on the last date of the three months\u2019 period and date of receipt of the decision/communication is not material, it is true that in the present case the decision was taken before the expiry of the period specified in the notice, i.e., on or before three months (last day of the third month), however, as observed hereinabove, the rejection of the application for voluntary retirement itself is found to be illegal and bad in law. Therefore, the aforesaid shall not affect the ultimate conclusion reached by the Division Bench of the High Court. As observed hereinabove, communication dated 20.04.2004 rejecting the voluntary retirement application was bad in law and contrary to Regulation 29. Therefore, the employee shall be entitled to all retiral benefits on the basis of his voluntary retirement. Once, it is held that he is voluntary retired as per his application dated 21.01.2004 and the rejection of the application of voluntary retirement is held to be bad in law, all other subsequent proceedings of departmental enquiry will be null and void and shall be non est, as after the voluntary retirement, there shall not be an employer\u00ademployee relationship. 13. In view of the above and for the reasons stated above, the appeal fails and the same deserves to be dismissed and is accordingly dismissed. However, there shall be no order as to costs. \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026J. [ASHOK BHUSHAN] \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026.J. [R. SUBHASH REDDY] NEW DELHI; \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026.J. JANUARY 22, 2021. [M.R. SHAH]",
        "76640285": "REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 195 OF 2022 (arising out of S.L.P (Crl.) No. 6545 OF 2020) KAHKASHAN KAUSAR @ SONAM & ORS. \u2026 APPELLANT (S) VERSUS STATE OF BIHAR & ORS. \u2026 RESPONDENT(S) JUDGMENT KRISHNA MURARI, J. Leave granted. 2. This appeal is directed against the judgment and order dated 13.11.2019 passed by the High Court of Patna in Criminal Writ Petition No. 1492 of 2019, filed by the Appellants under Section 482 of the Code of Criminal Procedure (hereinafter referred to as \u2018CrPC\u2019) challenging the FIR No. 248/2019 dated 01.04.2019 implicating the Appellants for offences under Sections 341, 323, 379, 354, 498A read with Section 34 of the Indian Penal Code (hereinafter referred to as \u2018IPC\u2019). The High Court vide order impugned herein dismissed the Signature Not Verified Digitally signed by Anita Malhotra Date: 2022.02.08 16:17:30 IST same. Reason: Factual Matrix 3. The Complainant (Respondent No. 5 herein) Tarannum Akhtar @ Soni, was married to Md. Ikram on 18.09.17. The appellants herein are the in-laws of Respondent No. 5. On 11.12.17, the said Respondent initially instituted a criminal complaint against her husband and the appellants before the Court of Chief Judicial Magistrate, Purnea alleging demand for dowry and harassment. Thereafter, when the file was put up before the Sub Divisional Judicial Magistrate Court, Purnea, for passing order at the stage of issuance of summon, the Ld. Magistrate concluded that upon perusal of material evidence no prima-facie case was made against the in-laws and that the allegations levelled against them were not specific in nature. The said court, however, took cognizance for the offence under section 498A, 323 IPC against the husband Md. Ikram, and issued summons. This dispute was eventually resolved and Respondent No. 5 herein came back to the matrimonial home. 4. Subsequently, on 01.04.19, Respondent No. 5 herein, gave another written complaint for registration of FIR under sections 341, 323, 379, 354, 498A read with Section 34 IPC against her husband Md. Ikram and the appellants herein. The complaint inter-alia alleged that all the accused were pressurizing the Respondent wife herein to purchase a car as dowry, and threatened to forcibly terminate her pregnancy if the demands were not met. 5. Aggrieved, the Husband and appellant herein filed a criminal writ petition before the Patna High Court, for quashing of the said FIR dated 01.04.19, which was dismissed vide impugned judgment. The High Court observed that the averments made in the FIR prima-facie disclosed commission of an offence and therefore the matter was required to be investigated by the police. The Appellants herein, being the niece (Respondent No. 1), Mother in-law (Respondent No. 2), Sister in-law (Respondent No. 3), and brother in law (Respondent No. 4) have thereby approached this court by way of the present Special Leave Petition. Contentions made by the Appellants 6. The counsel for the Appellants herein contends, that the Police Officer was duty bound to conduct a preliminary inquiry before registering the FIR as this instant case falls within the categories of cases on which a preliminary enquiry may be made, as mandated by this court in Lalita Kumari Vs. Government of U.P. & Ors.1 . 1. (2014) 2 SCC 1 7. It is also submitted that previously in the year 2017, the Respondent wife had instituted a criminal complaint on similar allegations, whereby the Ld. Judicial Magistrate after considering the evidence issued summons only against the husband, and found that the allegations made against the appellants herein were omnibus in nature. Further, it is submitted that the FIR in question has been made with a revengeful intent, merely to harass the Appellant in-laws herein, and should be dealt with accordingly. Reliance is placed on Social Action Forum for Manav Adhikar & Anr. Vs. Union of India, Ministry of Law And Justice & Ors.2, wherein it was observed:- \u201c4. Regarding the constitutionality of Section 498-A IPC, in Sushil Kumar Sharma v. Union of India and others , it was held by the Supreme Court:- \"Provision of S. 498A of Penal Code is not unconstitutional and ultra vires. Mere possibility of abuse of a provision of law does not per se invalidate a legislation. Hence plea that S. 498A has no legal or constitutional foundation is not tenable. The object of the provisions is prevention of the dowry menace. But many instances have come to light where the complaints are not bona fide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreck personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations 2. (2018) 10 SCC 443 can be appropriately dealt with. Till then the Courts have to take care of the situation within the existing frame-work.\u201d Contention made by Respondent No. 1 \u2013 State of Bihar 8. Respondent No. 1 herein i.e., the State of Bihar, contends that the present FIR pertains to offences committed in the year 2019, after assurance was given by the husband Md. Ikram before the Ld. Principal Judge Purnea, to not harass the Respondent wife for dowry, and treat her properly. However, the husband and appellants, despite the assurances, have continued their demand for dowry and threatened with forcefully terminating the Respondent wife\u2019s pregnancy. These acts constitute a fresh cause of action and therefore the FIR in question herein dated 01.04.19, is distinct and independent, and cannot be termed as a repetition of an earlier FIR dated 11.12.17. Moreover, an investigation was carried out pursuant to the FIR and the case has been found true against all accused persons, therefore Lalita Kumari (Supra) will not apply in the present case. Contentions made by Respondent No 5 \u2013 Complainant Wife 9. Respondent No. 5 contends that of the total seven accused, the FIR in question was challenged by only five accused including her husband. It is argued that the impugned order is evidently accepted by the accused husband Md. Ikram @Sikandar as he has not challenged the impugned High Court judgment. Further, as far as involvement of the four accused Appellant in-laws is concerned, it is not only reflected from the averments made in the FIR, but also corroborated from the oral and documentary evidence collected by the investigating officer during investigation, culminating into filing of charge-sheet against all seven accused including the four Appellants herein. The allegations thus made in the FIR are sufficient to make out a prima facie case, and non- mentioning of pendency of Complaint case of year 2017, at the time of filing the complaint 01.04.19 is not fatal for the case of the prosecution. 10. It is further submitted that the allegations made in the FIR are serious in nature and the Respondent wife has been repeatedly tortured physically and mentally in order to fulfil the demand for dowry. Further, even if the contentions made by the Respondent No. 5 herein are disputed, by the Appellant in-laws, their veracity can be tested in trial before the Trial Court. It is further contended that this court has also taken a consistent view with regard to exercise of power under S. 482 Cr.P.C., in Rajesh Bajaj Vs. State of NCT of Delhi & Ors. 3, wherein it has been clearly held that even if a prima facie case is made out disclosing the ingredients of an offence, Court should not quash the complaint. Therefore, the impugned order can in no way be termed as perverse, cryptic or erroneous and therefore warrant no interference by this Hon\u2019ble Court. Issue Involved 11. Having perused the relevant facts and contentions made by the Appellants and Respondents, in our considered opinion, the foremost issue which requires determination in the instant case is whether allegations made against the in-laws Appellants are in the nature of general omnibus allegations and therefore liable to be quashed? 12. Before we delve into greater detail on the nature and content of allegations made, it becomes pertinent to mention that incorporation of section 498A of IPC was aimed at preventing cruelty committed upon a woman by her husband and her in-laws, by facilitating rapid state intervention. However, it is equally true, that in recent times, matrimonial litigation in the country has also increased significantly and there is a 3. (1999) 3 SCC 259 greater disaffection and friction surrounding the institution of marriage, now, more than ever. This has resulted in an increased tendency to employ provisions such as 498A IPC as instruments to settle personal scores against the husband and his relatives. 13. This Court in its judgment in Rajesh Sharma and Ors. Vs. State of U.P. & Anr.4, has observed:- \u201c14. Section 498-A was inserted in the statute with the laudable object of punishing cruelty at the hands of husband or his relatives against a wife particularly when such cruelty had potential to result in suicide or murder of a woman as mentioned in the statement of Objects and Reasons of the Act 46 of 1983. The expression 'cruelty' in Section 498A covers conduct which may drive the woman to commit suicide or cause grave injury (mental or physical) or danger to life or harassment with a view to coerce her to meet unlawful demand. It is a matter of serious concern that large number of cases continue to be filed under already referred to some of the statistics from the Crime Records Bureau. This Court had earlier noticed the fact that most of such complaints are filed in the heat of the moment over trivial issues. Many of such complaints are not bona fide. At the time of filing of the complaint, implications and consequences are not visualized. At times such complaints lead to uncalled for harassment not only to the accused but also to the complainant. Uncalled for arrest may ruin the chances of settlement.\u201d 4. (2018) 10 SCC 472 14. Previously, in the landmark judgment of this court in Arnesh Kumar Vs. State of Bihar and Anr.5, it was also observed:- \u201c4. There is a phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-A IPC is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed- ridden grand- fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested.\u201d 15. Further in Preeti Gupta & Anr. Vs. State of Jharkhand & Anr. 6, it has also been observed:- \u201c32. It is a matter of common experience that most of these complaints under section 498A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment are also a matter of serious concern. 33. The learned members of the Bar have enormous social responsibility and obligation to ensure that the social fiber of family life is not ruined or demolished. They must ensure that exaggerated versions of small incidents should not be reflected in the criminal complaints. Majority of the complaints are filed either on their advice or with their 5. (2014) 8 SCC 273 6. (2010) 7 SCC 667 concurrence. The learned members of the Bar who belong to a noble profession must maintain its noble traditions and should treat every complaint under section 498A as a basic human problem and must make serious endeavour to help the parties in arriving at an amicable resolution of that human problem. They must discharge their duties to the best of their abilities to ensure that social fiber, peace and tranquility of the society remains intact. The members of the Bar should also ensure that one complaint should not lead to multiple cases. 34. Unfortunately, at the time of filing of the complaint the implications and consequences are not properly visualized by the complainant that such complaint can lead to insurmountable harassment, agony and pain to the complainant, accused and his close relations. 35. The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a herculean task in majority of these complaints. The tendency of implicating husband and all his immediate relations is also not uncommon. At times, even after the conclusion of criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband's close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection. 36. Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband's relations had to remain in jail even for a few days, it would ruin the chances of amicable settlement altogether. The process of suffering is extremely long and painful.\u201d 16. In Geeta Mehrotra & Anr. Vs. State of UP & Anr.7, it was observed:- \u201c21. It would be relevant at this stage to take note of an apt observation of this Court recorded in the matter of G.V. Rao vs. L.H.V. Prasad & Ors. reported in (2000) 3 SCC 693 wherein also in a matrimonial dispute, this Court had held that the High Court should have quashed the complaint arising out of a matrimonial dispute wherein all family members had been roped into the matrimonial litigation which was quashed and set aside. Their Lordships observed therein with which we entirely agree that: \u201cthere has been an outburst of matrimonial dispute in recent times. Marriage is a sacred ceremony, main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate the disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their \u201cyoung\u201d days in chasing their cases in different courts.\u201d The view taken by the judges in this matter was that the courts would not encourage such disputes.\u201d 17. Recently, in K. Subba Rao v. The State of Telangana 8, it was also observed that:- 7. (2012) 10 SCC 741 8. (2018) 14 SCC 452 \u201c6. The Courts should be careful in proceeding against the distant relatives in crimes pertaining to matrimonial disputes and dowry deaths. The relatives of the husband should not be roped in on the basis of omnibus allegations unless specific instances of their involvement in the crime are made out.\u201d 18. The above-mentioned decisions clearly demonstrate that this court has at numerous instances expressed concern over the misuse of section 498A IPC and the increased tendency of implicating relatives of the husband in matrimonial disputes, without analysing the long term ramifications of a trial on the complainant as well as the accused. It is further manifest from the said judgments that false implication by way of general omnibus allegations made in the course of matrimonial dispute, if left unchecked would result in misuse of the process of law. Therefore, this court by way of its judgments has warned the courts from proceeding against the relatives and in-laws of the husband when no prima facie case is made out against them. 19. Coming to the facts of this case, upon a perusal of the contents of the FIR dated 01.04.19, it is revealed that general allegations are levelled against the Appellants. The complainant alleged that \u2018all accused harassed her mentally and threatened her of terminating her pregnancy\u2019. Furthermore, no specific and distinct allegations have been made against either of the Appellants herein, i.e., none of the Appellants have been attributed any specific role in furtherance of the general allegations made against them. This simply leads to a situation wherein one fails to ascertain the role played by each accused in furtherance of the offence. The allegations are therefore general and omnibus and can at best be said to have been made out on account of small skirmishes. Insofar as husband is concerned, since he has not appealed against the order of the High court, we have not examined the veracity of allegations made against him. However, as far as the Appellants are concerned, the allegations made against them being general and omnibus, do not warrant prosecution. 20. Furthermore, regarding similar allegations of harassment and demand for car as dowry made in a previous FIR. Respondent No. 1 i.e., the State of Bihar, contends that the present FIR pertained to offences committed in the year 2019, after assurance was given by the husband Md. Ikram before the Ld. Principal Judge Purnea, to not harass the Respondent wife herein for dowry, and treat her properly. However, despite the assurances, all accused continued their demands and harassment. It is thereby contended that the acts constitute a fresh cause of action and therefore the FIR in question herein dated 01.04.19, is distinct and independent, and cannot be termed as a repetition of an earlier FIR dated 11.12.17. 21. Here it must be borne in mind that although the two FIRs may constitute two independent instances, based on separate transactions, the present complaint fails to establish specific allegations against the in-laws of the Respondent wife. Allowing prosecution in the absence of clear allegations against the in-laws Appellants would simply result in an abuse of the process of law. 22. Therefore, upon consideration of the relevant circumstances and in the absence of any specific role attributed to the accused appellants, it would be unjust if the Appellants are forced to go through the tribulations of a trial, i.e., general and omnibus allegations cannot manifest in a situation where the relatives of the complainant\u2019s husband are forced to undergo trial. It has been highlighted by this court in varied instances, that a criminal trial leading to an eventual acquittal also inflicts severe scars upon the accused, and such an exercise must therefore be discouraged. 23. In view of the above facts and discussions, the impugned order dated 13.11.2019 passed by the High Court of Patna is set aside. The impugned F.I.R. No. 248 of 2019 against the Appellants under Sections 341, 323, 379, 354, 498A read with Section 34 IPC stands quashed. 24. As a result, appeal stands allowed. ....\u2026..........................J. (S. ABDUL NAZEER) \u2026................................J. (KRISHNA MURARI) NEW DELHI; 08TH FEBRUARY, 2022",
        "1680408": "CASE NO.: Appeal (civil) 849 of 2007 PETITIONER: State of Manipur & Ors RESPONDENT: Y. Token Singh & Ors DATE OF JUDGMENT: 20/02/2007 BENCH: S.B. Sinha & Markandey Katju JUDGMENT: J U D G M E N T WITH [Arising out of SLP (C) No. 19110-19112 of 2005] CIVIL APPEAL NO.850 OF 2007 [Arising out of SLP (C) No. 19375-19376 of 2005] S.B. SINHA, J : Leave granted. The State of Manipur is in appeal before us questioning the judgment and order dated 29.07.2005 passed by a Division Bench of the Guwahati High Court in WA Nos. 61, 78, 79, 95 and 100 of 1999 upholding a judgment and order of a learned Single Judge of the said Court dated 19.02.1999 in C.R. Nos. 324, 1012, 568, 1022 and 1023 of 1998. One Shri A.J. Tayeng was the Revenue Commissioner of Government of Manipur. The State of Manipur had not framed any recruitment rules for appointment inter alia in the Revenue Department and in particular the field staff thereof. The Commissioner of Revenue Department was conferred with a power of being the cadre controlling authority for non-ministerial post of the Revenue Department. He was also to be the Chairman of the Departmental Promotion Committee for non-ministerial post of the Revenue Department. The Commissioner allegedly made certain appointments in the posts of Mandols, Process-Servers and Zilladars which was not within the knowledge of the State. The said appointments were made on temporary basis. Appointments were made on 11.09.1997, 22.11.1997 and 5.12.1997. A sample copy of the offer of appointment reads as under: \"No. 1/14/97 \u0016 Com (Rev) : On the recommendation of D.P.C. and under the directives issued by the Hon'ble Gauhati High Court, the following persons are hereby appointed as Mandols on temporary basis in the scale of pay of Rs. 950-20-1150-EB-25-1400/- per month with usual allowances against thereto existing clear vacancies of Mandals under Revenue Department from the date of their joining on duties. 2. Further, they are posted at the places indicate against their names:- *** *** *** 3. The expenditure is debitable under Appropriate Heads of Accounts of the Departments/ Offices concerned.\" No record in regard to the said recruitments was maintained. An inquiry was, therefore, made to find out the authority which had issued the said offers of appointments. Shri Tayeng by a UO Note dated 12.01.1998 denied to have made such an appointment stating: \"CONFIDENTIAL U.O. No. 2/15/93-Com (R) Pt. Imphal, the 12th Jan., 1998 Sub: Submission of report. With reference to the U.O. letter No. 2/15/93- Com(R) Pt. Dated 6th January, 1998 regarding the alleged appointment of ad-hoc/ regular appointment to the post of Lambus/ Mandols etc. of the Hon'ble Minister (Revenue), I am to say that I am not all aware of such appointments made by me except for 3 Lambus who were kept in panel for appointment, and accordingly the S.O. (Revenue) Shri Robert Shaiza was instructed to take care. I, therefore, deny making of such appointments. On the other hand, Md. A.R. Khan, Secretary (Revenue) has made many appointments of Mandols/ Process Servers/ Zilladars in the recent months against which I have been complaining that the Secretary (Revenue) has no power or authority to make any appointments of field staff as per Rules provided under M.L.R. Act, 1960. In this regard, I have apprised the matter to the Hon'ble Minister (Revenue) already and also informed the Chief Secretary, Manipur explaining that the Secretary (Revenue) cannot make such appointments of field staffs, even if he wanted to do so, all the relevant files should have been routed through the undersigned so that the same may be brought to the notice of the Hon'ble Minister (Revenue). His action has created lots of misunderstanding and confusion. He has been making false and wrong allegations against the Commissioner (Revenue) and putting him false position. It is for this reason, I have been writing to all the Deputy Commissioners in the Districts even by sending W/T messages clarifying the actual position of making any appointment of Revenue field staff. I still deny that I have made any appointment of field staffs of Revenue Department during the recent months. Submitted for information and consideration. Sd/- 12/1/98 (Annayok J. Tayeng) Commissioner (Revenue) Govt. of Manipur Minister (Revenue)\" In view of the aforementioned stand taken by the said Shri Tayeng, the offers of appointment issued in favour of the Respondents were cancelled by an order dated 17.02.1998. A corrigendum thereto was, however, issued on 21.02.1998 stating: \"No. 2/15/93-Com(Rev) Temp-I: Please read as \"August/97\" in place of \"October/97\" occurring in the 4th line of this Government order No. 2/15/93- Com(Rev) Temp-I dated 17-2-1998.\" In Civil Appeal arising out of SLP (C) No. 19375-19376 of 2005, the respondents were appointed on ad hoc basis for a period of six months. Their appointments were also cancelled on similar grounds. The respondents herein filed writ petitions before the High Court on 4.06.1998 questioning the said order of cancellation of their appointments. The said Shri Tayeng retired on 28.02.1998. Despite the fact that he, in his UO Note dated 12.02.1998 addressed to the Minister of Revenue, denied to have made any appointment, when approached by the writ petitioners \u0016 respondents, he affirmed in their support an affidavit in the High Court stating: \"3. That, while I was functioning as Revenue Commissioner, Manipur, matters relating to appointment on the recommendation of the D.P.C., transfer etc. were put-up to me in files and I used to pass order on the basis of facts presented to me in file. I also issued appointment order under my signature. After my retirement from service I have no access to such files. As stated above, I was transferred and posted to the Manipur Electronics Development Corporation during 1997. 4. That after my retirement, some of the writ petitioners civil Rule No. 568 of 1998, came to me and show copy of the writ petition and the counter affidavit of the respondent No. 1, 2 and 3. I have gone through the copy of the writ petition and the counter-affidavit and annexures thereto. The Xerox copy of the cyclostyled appointment order bearing No. 1/14/97 \u0016 Com (Rev.) dated 11.9.97 (annexure A/1 to the writ petition) appointing 3 persons to the post of Mandol and No. 1/14/97- Com. (Rev.) dated 11.9.97 (Annexure A/2 to the writ petition) appointing 4 persons to the post of Mandol, are perused by me minutely. I submit that these appointment orders (annexures A/1 and A/2) bear my signature (initial) and appear to have been issued under my signature. It appears that the appointment orders were issued after complying the formalities prescribed therefor which can be ascertained from the relevant official file. Since I have retired from service, I have no access to the file and do not know what might have been in the file and where is the file. Verified that the above statements are true to the best of my knowledge and no part of it is false.\" The writ petitions filed by the respondents herein were allowed by a learned Single Judge of the High Court opining: (i) The principles of natural justice having not been complied with, the impugned orders cannot be sustained. (ii) Whereas, in the impugned order, the appointments of the respondents were said to have been passed without the knowledge of the Administrative Department (Revenue Department); in the counter affidavit, it was stated that no records were available in respect thereof and, thus, the said plea being inconsistent with each other, the orders of cancellation of appointment would be bad in law in the light of a decision of this Court in Mohinder Singh Gill and Anr. v. Chief Election Commissioner, Delhi and Ors. [AIR 1978 SC 851]. However, it was observed: \"However, it is further made clear that the State respondent are at liberty to initiate or take up any appropriate legal action in the matter pertaining to their alleged fake appointments in their respective posts in accordance with law and pass necessary order after affording reasonable opportunity of being heard to them.\" (iii) So far as the matter relating to Civil Appeal arising out of SLP (C) No. 19375-19376 of 2005 is concerned, it was directed that as the appointment of the respondents were made for a period of six months, the employees were only entitled to the salary for the said period. The writ appeals preferred thereagainst by the appellants herein were dismissed. Mr. Jaideep Gupta, learned senior counsel appearing on behalf of the appellants, would submit that the High Court went wrong in passing the impugned judgment insofar as it failed to take into consideration that in a case of this nature it was not necessary to comply with the principles of natural justice. Strong reliance in this behalf has been placed on Kendriya Vidyalaya Sangathan and Others v. Ajay Kumar Das and Others [(2002) 4 SCC 503]. It was argued that the question, as to whether appointments were made without the knowledge of the Department or for that matter whether any record was available therefor was of not much significance as in effect and substance they lead to the same inference and in that view of the matter, the decision of this Court in Mohinder Singh Gill (supra) was not attracted. Mr. S.B. Sanyal, learned counsel appearing on behalf of the respondents, on the other hand, would submit that the question as to whether the appointments of the respondents were nullities or not having not been raised before the High Court, this Court should not permit the appellants to raise the said contention at this stage. The learned counsel would submit that even in a case of this nature, it was incumbent upon the appellants to comply with the principles of natural justice. Strong reliance in this behalf has been placed on Parshotam Lal Dhingra v. Union of India [AIR 1958 SC 36], Murugayya Udayar and Another v. Kothampatti Muniyandavar Temple by Trustee Pappathi Ammal [1991 Supp (1) SCC 331] and Kumari Shrilekha Vidyarthi and Others v. State of U.P. and Others [(1991) 1 SCC 212]. The State while offering appointments, having regard to the constitutional scheme adumbrated in Articles 14 and 16 of the Constitution of India, must comply with its constitutional duty, subject to just and proper exceptions, to give an opportunity of being considered for appointment to all persons eligible therefor. The posts of field staffs of the Revenue Department of the State of Manipur were, thus, required to be filled up having regard to the said constitutional scheme. We would proceed on the assumption that the State had not framed any recruitment rules in terms of the proviso appended to Article 309 of the Constitution of India but the same by itself would not clothe the Commissioner of Revenue to make recruitments in violation of the provisions contained in Articles 14 and 16 of the Constitution of India. The offers of appointment issued in favour of the respondents herein were cancelled inter alia on the premise that the same had been done without the knowledge of the Revenue Department of the State. No records therefor were available with the State. As noticed hereinbefore, an inquiry had been made wherein the said Shri Tayeng, the then Commissioner of Revenue stated that no such appointment had been made to his knowledge. The State proceeded on the said basis. The offers of appointment were cancelled not on the ground that some irregularities had been committed in the process of recruitment but on the ground that they had been non-est in the eye of law. The purported appointment letters were fake ones. They were not issued by any authority competent therefor. If the offers of appointments issued in favour of the respondents herein were forged documents, the State could not have been compelled to pay salaries to them from the State exchequer. Any action, which had not been taken by an authority competent therefor and in complete violation of the constitutional and legal framework, would not be binding on the State. In any event, having regard to the fact that the said authority himself had denied to have issued a letter, there was no reason for the State not to act pursuant thereto or in furtherance thereof. The action of the State did not, thus, lack bona fide. Moreover, it was for the respondents who had filed the writ petitions to prove existence of legal right in their favour. They had inter alia prayed for issuance of a writ of or in the nature of mandamus. It was, thus, for them to establish existence of a legal right in their favour and a corresponding legal duty in the respondents to continue to be employed. With a view to establish their legal rights to enable the High Court to issue a writ of mandamus, the respondents were obligated to establish that the appointments had been made upon following the constitutional mandate adumbrated in Articles 14 and 16 of the Constitution of India. They have not been able to show that any advertisement had been issued inviting applications from eligible candidates to fill up the said posts. It has also not been shown that the vacancies had been notified to the employment exchange. The Commissioner furthermore was not the appointing authority. He was only a cadre controlling authority. He was merely put a Chairman of the DPC for non-ministerial post of the Revenue Department. The term \"DPC\" would ordinarily mean the Departmental Promotion Committee. The respondents had not been validly appointed and in that view of the matter, the question of their case being considered for promotion and/ or recruitment by the DPC did not and could not arise. Even assuming that DPC would mean Selection Committee, there is noting on record to show who were its members and how and at whose instance it was constituted. The Commissioner, as noticed hereinbefore, was the Chairman of the DPC. How the matter was referred to the DPC has not been disclosed. Even the affidavit affirmed by Shri Tayeng before the High Court in this behalf is silent. The appointing authority, in absence of any delegation of power having been made in that behalf, was the State Government. The Government Order dated 12.01.1998 did not delegate the power of appointment to the Commissioner. He, therefore, was wholly incompetent to issue the appointment letters. The respondents, therefore, in our opinion, were not entitled to hold the posts. In a case of this nature, where the facts are admitted, the principles of natural justice were not required to be complied with, particularly when the same would result in futility. It is true that where appointments had been made by a competent authority or at least some steps have been taken in that behalf, the principles of natural justice are required to be complied with, in view of the decision of this Court in Murugayya Udayar (supra). We, as noticed hereinbefore, do not know as to under what circumstances the orders of appointments were issued. The said decision is not an authority for the proposition that the principles of natural justice are required to be complied with in all situations. In Kumari Shrilekha Vidyarthi (supra), this Court was dealing with a question in regard to continuance of the Law Officers. The question which arose herein was not raised. It was held: \"34. In our opinion, the wide sweep of Article 14 undoubtedly takes within its fold the impugned circular issued by the State of U.P. in exercise of its executive power, irrespective of the precise nature of appointment of the Government Counsel in the districts and the other rights, contractual or statutory, which the appointees may have. It is for this reason that we base our decision on the ground that independent of any statutory right, available to the appointees, and assuming for the purpose of this case that the rights flow only from the contract of appointment, the impugned circular, issued in exercise of the executive power of the State, must satisfy Article 14 of the Constitution and if it is shown to be arbitrary, it must be struck down. However, we have referred to certain provisions relating to initial appointment, termination or renewal of tenure to indicate that the action is controlled at least by settled guidelines, followed by the State of U.P., for a long time. This too is relevant for deciding the question of arbitrariness alleged in the present case. 35. It is now too well settled that every State action, in order to survive, must not be susceptible to the vice of arbitrariness which is the crux of Article 14 of the Constitution and basic to the rule of law, the system which governs us. Arbitrariness is the very negation of the rule of law. Satisfaction of this basic test in every State action is sine qua non to its validity and in this respect, the State cannot claim comparison with a private individual even in the field of contract. This distinction between the State and a private individual in the field of contract has to be borne in the mind.\" We in the facts and circumstances of this case do not see any arbitrariness on the part of the State in its action directing cancellation of appointments. We may, on the other hand, notice that Kumari Shrilekha Vidyarthi (supra) has been distinguished by this Court in State of U.P. and Others v. U.P. State Law Officers Association and Others [(1994) 2 SCC 204] stating: \"\u0005The reliance placed by the respondents in this behalf on Shrilekha Vidyarthi v. State of U.P. is misplaced for the obvious reason that the decision relates to the appointment of the District Government Counsel and the Additional/Assistant District Government Counsel who are the law officers appointed by the State Government to conduct civil, criminal and revenue cases in any court other than the High Court. Their appointments are made through open competition from among those who are eligible for appointment and strictly on the basis of merit as evidenced by the particulars of their practice, opinions of the District Magistrate and the District Judge and also after taking into consideration their character and conduct. Their appointment is in the first instance for one year. It is only after their satisfactory performance during that period that a deed of engagement is given to them, and even then the engagement is to be for a term not exceeding three years. The renewal of their further term again depends upon the quality of work and conduct, capacity as a lawyer, professional conduct, public reputation in general, and character and integrity as certified by the District Magistrate and the District Judge. For the said purpose, the District Magistrate and the District Judge are required to maintain a character roll and a record of the work done by the officer and the capacity displayed by him in discharge of the work. His work is also subject to strict supervision. The shortcomings in the work are required to be brought to the notice of the Legal Remembrancer. It will thus be seen that the appointment of the two sets of officers, viz., the Government Counsel in the High Court with whom we are concerned, and the District Government Counsel with whom the said decision was concerned, are made by dissimilar procedures. The latter are not appointed as a part of the spoils system. Having been selected on merit and for no other consideration, they are entitled to continue in their office for the period of the contract of their engagement and they can be removed only for valid reasons. The people are interested in their continuance for the period of their contracts and in their non-substitution by those who may come in through the spoils system. It is in these circumstances that this Court held that the wholesale termination of their services was arbitrary and violative of Article 14 of the Constitution. The ratio of the said decision can hardly be applied to the appointments of the law officers in the High Court whose appointment itself was arbitrary and was made in disregard of Article 14 of the Constitution as pointed out above\u0005\" [Emphasis added] In Parshotam Lal Dhingra (supra), this Court held that whoever holds civil posts would be entitled to protection of their services in terms of Clause (2) of Article 309 of the Constitution of India in the event any disciplinary action is taken against them stating: \"\u0005The underlying idea obviously is that a provision like this will ensure to them a certain amount of security of tenure. Clause (2) protects government servants against being dismissed or removed or reduced in rank without being given a reasonable opportunity of showing cause against the action proposed to be taken in regard to them. It will be noted that in clause (1) the words dismissed and removed have been used while in clause (2) the words dismissed removed and reduced in rank have been used. The two protections are (1) against being dismissed or removed by an authority subordinate to that by which the appointment had been made, and (2) against being dismissed, removed or reduced in rank without being heard. What, then, is the meaning of those expressions dismissed removed or reduced in rank? It has been said in Jayanti Prasad v. State of Uttar Pradesh that these are technical words used in cases in which a persons services are terminated by way of punishment. Those expressions, it is urged, have been taken from the service rules, where they were used to denote the three major punishments and it is submitted that those expressions should be read and understood in the same sense and treated as words of Art\u0005\" In Dhirender Singh and Others v. State of Haryana and Others [(1997) 2 SCC 712], termination of an order of promotion in favour of the appellant was not interfered with by this Court as the same had not been approved by the DIG, being the competent authority. In M.C. Mehta v. Union of India and Others [(1999) 6 SCC 237], this Court developed the \"useless formality\" theory stating: \"More recently Lord Bingham has deprecated the useless formality theory in R. v. Chief Constable of the Thames Valley Police Forces, ex p Cotton by giving six reasons. (See also his article Should Public Law Remedies be Discretionary? 1991 PL, p. 64.) A detailed and emphatic criticism of the useless formality theory has been made much earlier in Natural Justice, Substance or Shadow by Prof. D.H. Clark of Canada (see 1975 PL, pp. 27- 63) contending that Malloch and Glynn were wrongly decided. Foulkes (Administrative Law, 8th Edn., 1996, p. 323), Craig (Administrative Law, 3rd Edn., p. 596) and others say that the court cannot prejudge what is to be decided by the decision-making authority. de Smith (5th Edn., 1994, paras 10.031 to 10.036) says courts have not yet committed themselves to any one view though discretion is always with the court. Wade (Administrative Law, 5th Edn., 1994, pp. 526-30) says that while futile writs may not be issued, a distinction has to be made according to the nature of the decision. Thus, in relation to cases other than those relating to admitted or indisputable facts, there is a considerable divergence of opinion whether the applicant can be compelled to prove that the outcome will be in his favour or he has to prove a case of substance or if he can prove a real likelihood of success or if he is entitled to relief even if there is some remote chance of success. We may, however, point out that even in cases where the facts are not all admitted or beyond dispute, there is a considerable unanimity that the courts can, in exercise of their discretion, refuse certiorari, prohibition, mandamus or injunction even though natural justice is not followed. We may also state that there is yet another line of cases as in State Bank of Patiala v. S.K. Sharma, Rajendra Singh v. State of M.P. that even in relation to statutory provisions requiring notice, a distinction is to be made between cases where the provision is intended for individual benefit and where a provision is intended to protect public interest. In the former case, it can be waived while in the case of the latter, it cannot be waived.\" In Kendriya Vidyalaya Sangathan (supra), it was held: \"\u0005It is clear that if after the termination of services of the said Dr. K.C. Rakesh, the orders of appointment are issued, such orders are not valid. If such appointment orders are a nullity, the question of observance of principles of natural justice would not arise\u0005\" In Bar Council of India v. High Court of Kerala [(2004) 6 SCC 311], it was stated: \"\u0005Principles of natural justice, however, cannot be stretched too far. Their application may be subject to the provisions of a statute or statutory rule.\" In R.S. Garg v. State of U.P. and Others [(2006) 6 SCC 430], it was stated: \"A discretionary power as is well known cannot be exercised in an arbitrary manner. It is necessary to emphasize that the State did not proceed on the basis that the amendment to the Rules was not necessary. The action of a statutory authority, as is well known, must be judged on the basis of the norms set up by it and on the basis of the reasons assigned therefor. The same cannot be supplemented by fresh reasons in the shape of affidavit or otherwise.\" For the reasons aforementioned, the impugned judgments cannot be sustained. They are set aside accordingly. The appeals are allowed. No costs.",
        "1405647": "04 07.04.2021 WPA 13806 of 2019 (Via Video Conference) Sonali Hatua Giri Vs. Union of India and others Mr. Sankar Nath Mukherjee, Mr. Niraj Gupta, Mr. Priyabrata Shah, Mr. Aditya Biswas ...for the petitioner Mr. Y. J. DAstoor, Mr. Rudraman Bhattacharya, Mr. Anuran Samanta ...for the Union of India The challenge presently under consideration is to the vires of Clause 5.2.5 of the Guidelines for Disbursement of Central Samman Pensions to be followed by Authorized Public Sector Banks issued by the Ministry of Home Affairs, FFR division. The said Scheme is for disbursement of pension to freedom fighters under the Central Samman Pension Scheme. The guidelines-in-question provide the modalities of such disbursement. The petitioner is the daughter of a deceased freedom fighter, who had been getting pension under the said Scheme for the Swantrata Sainik Samman Pension till his demise on December 4, 2012. The petitioner was married but subsequently got a decree of divorce on March 19, 1999 and has since been 2 residing at her paternal house along with her son and was dependent on her father since she had foregone her right of alimony from her husband. The petitioner submits that after the demise of her father, her widowed mother also applied for grant of such pension in her favour. However, such representation was kept pending for an inordinately long time and ultimately the mother of the petitioner died on February 18, 2019 as well, leaving behind her son and daughter, that is, the writ petitioner. Subsequently, the petitioner also made a representation before respondent no.5 requesting fordisbursal of family pension in her favour as a dependent daughter. However, such request has not yet been considered till date. At the outset, the challenge to the vires of Clause 5.2.5 is required to be considered, since the decision on the same will affect the outcome of the writ petition otherwise. The relevant provision in the Guidelines is found in Clause 5.2 thereof, which deals with transfer of pension to spouse(s)/daughter(s). Clause 5.2.3 stipulates that the spouse/daughter must fulfil the twin conditions of being \"unmarried\" and \"having no independent source of income\". Clause 5.2.5, on the other hand, stipulates that widowed/divorced daughter is not eligible for Samman pension. Learned counsel for the petitioner contends that Clause 5.2.5 excludes widowed/divorced daughters from entitlement, although \"unmarried\" daughters have been included. Such discretion is without any reasonable basis and violates Article 14 as well as Article 39 of the Constitution of India. Learned counsel for respondent no.1 argues that there are intelligible differentia as to why widowed and/or divorced daughters are excluded from the benefit of the Scheme. It is submitted that there is a presumption of constitutionality and the validity of a legislation can only be struck down when the classification is unreasonable and arbitrary. For such proposition, learned counsel relies on Municipal committee, Patiala Vs. Model town Residents Association, reported at (2007) 8 SCC 669, wherein it was held that there is a presumption of constitutionality and in testing the validity of the law, the Court can take into consideration matters of common knowledge and, at the same time, the Court must presume that the legislature understands and correctly appreciates the needs of its own people. While elaborating the intelligible differentia of excluding widowed and/or divorced daughters from the benefit of the Scheme, learned counsel argues that, as far as widows are concerned, under Section 8 of the Hindu Succession Act, 1956, a widow is a Class I heir, including the widow of a pre-deceased son. As such, a widow is entitled to inherit the properties of the husband and/or the father-in-law. In the event the husband does not have any property and the father-in-law is alive and the widow is unable to maintain herself, under Sections 19 of the Hindu Adoption and Maintenance Act, 1956, she is entitled to maintenance as a widowed daughter-in-law. Section 2 of the Act clarifies that this would also cover Buddhists, Jains and Sikhs. As far as a Muslim widow is concerned, she is entitled to dower which is recovered by wife or widow or divorcee or her heirs if she is dead. Under the Indian Succession Act, 1925, Section 32 provides that the property of a husband devolves on the widow. Such provision covers all persons who are not Hindus, Mohammedans, Buddhists, Sikhs or Jains. There is specific provision in Sections 50 and 51 of the said Act regarding property of the deceased devolving on the widow as far as Parsis are concerned. Regarding divorced women, it is submitted that Hindu women are entitled to permanent alimony from the husband under Section 25 of the Hindu Marriage Act, which also include Buddhists, Jains and Sikhs apart from Hindus. Under Section 3(1)(a), read with Section 4, of the Muslim Women (Protection of Rights on Divorce) Act, 1986, a divorced Muslim woman can claim maintenance even after expiry of iddat period. A divorced Parsi woman, it is submitted, is entitled to permanent alimony and maintenance from the husband under Section 40 of the Parsi Marriage and Divorce Act, 1936. A divorced Christian woman, on the other hand, is entitled to permanent alimony and maintenance from the husband under Section 37 of the Indian Divorce Act, 1969. As such, a widowed and a divorcee daughter are entitled to maintain themselves as they have been provided sufficient benefits under various statutes, which are not available to an unmarried daughter. As such, the classification of widowed and divorcee daughters on the one hand and unmarried daughters on the other is reasonable. That apart, it is argued that the object of the pension Scheme is to provide subsistence allowance only to the dependents of the freedom fighters who are otherwise not entitled to get the benefit from any other person. By placing reliance on an unreported Order dated July 29, 2016 passed by the Punjab and Haryana High Court in Letters Patent Appeal No.171 of 2015 (Khajani Devi Vs. Union of India and others), learned counsel submits that the benefit of the Scheme is admissible to a divorced daughter. A two- Judge Bench of the Supreme Court, by an Order dated September 27, 2019 passed in SLP (C) No. 02353 of 2019 (Union of India and others Vs. Khajani Devi) was pleased not to interfere with the same on the view that the order adopts a progressive and socialist constructive approach. However, the Himachal Pradesh High Court had taken a contrary view in an Order dated July 18, 2019 passed in CWP No.1504 of 2019 (Tulsi Devi Vs. Union of India and another). A three-Judge Bench of the Supreme Court, by an Order dated May 28, 2020 passed in an SLP arising out of Diary No.7497 of 2020 (Tulsi Devi Vs. Union of India and another) was pleased to issue a notice in the matter. Such issue is, thus, pending adjudication before the Supreme Court and it is argued that judicial decorum warrants that since the Supreme Court is in seisin of the mater, this Court should not take any view at this stage. Learned counsel for the petitioner contends in reply that in Tulsi Devi (supra), the Himachal Pradesh High Court did not consider the judgment of Khajani Devi (supra) rendered by the Punjab and Haryana High Court, which was upheld by the Supreme Court in a Special Petition, bearing No.17706 of 2017. Thus, it is submitted that the law, as it stands at present, is that divorced daughters are also entitled to the benefit of the scheme. As regards the contention of respondent no.1 that judicial decorum ought to constrain the hands of this Court due to pendency of a similar issue before the Supreme court, such contention is not acceptable, at least in the present case, since mere pendency of challenge in a different case cannot have any direct bearing on the adjudication at hand. That apart, in view of the implicit urgency involved, since the petitioner has no income to sustain herself and her minor son without any income, the matter pertains to her livelihood and cannot be stalled indefinitely for the adjudication of the matter pending before the Supreme Court. Although the dismissal of a Special Leave Petition by the Supreme Court does not tantamount to affirmance of an order on merits, which would lend binding force to such order as the law of the land is declared by the Supreme Court, the Punjab and Haryana High Court had taken a clear view that divorced daughters are also entitled to benefit under the Scheme-in-question. The view taken by the Himachal Pradesh High Court did not lay down any ratio on the vires of Clause 5.2.5 and/or decide the question which has fallen for consideration before this Court. In the said case, being Tulsi Devi (supra), the Himachal Pradesh High Court held that the \"Swantrata Sainik Samman Yojana\" has been launched as a mark of respect to the freedom fighters whereas in the case of armed force personnel or the Central/State Government pensionaries/employees, the pension is not a 'bounty', but a property. Thus, a line of distinction was drawn between such pensions and the pension payable to freedom fighters and their heirs. With utmost respect, even without going into the question of parity with other pension schemes, the view of the Punjab and Haryana High Court is more applicable in the present case. In the said judgment, it was held that it would be a travesty to exclude a divorced daughter when an unmarried daughter finds mention in the list of eligible dependents. It was further held that there would be no rationality to the reason for such distinction, particularly when the divorced daughter is the sole eligible dependent and qualifies for the benefit. It was held that a beneficial scheme such as the one in hand should not be construed on a strict interpretation, which tends to disapprove the claims of the benefit, to result in virtual frustration or negation of the laudable motive of the scheme itself. In my view, the ratio laid down by the Punjab and Haryana High Court in Khajani Devi (supra) is also applicable in the present context and appeals to the judicial conscience on a higher footing than the Himachal Pradesh report. A combined reading of Article 14 of the Constitution of India, which is a fundamental right of equality before the law, and Article 39(a), ensures that the State is to direct its policy towards securing such end. Clause (d) of Article 39 also ensures that there is equal pay for equal work for both men and women. Although Article 39 is a Directive Principle of State Policy, not directly enforceable in law, the fundamental rights of the citizens of India ought to be considered in the context of the directive principles to lend teeth to the intentions of the framers of the Constitution of India. In view of Clause 5.2.3 having conferred eligibility on spouses/daughters who are unmarried and have no independent source of income, Clause 5.2.5 of the guidelines is ex facie irrational, since it excludes widowed/divorced daughters from the eligibility. The scheme was formulated as \"a token of honour by a grateful nation to the honorable freedom fighters and their dependents\" as per its own language. It is not necessary that the term 'dependents' as used in the scheme has to be in consonance with Succession Acts of various religious communities. However, even if we take into consideration the Acts- in-question, no line of distinction has been drawn between divorced and unmarried daughters. For example, if we read Sections 8 and 9, in conjunction with the Class I of the Schedule to the Hindu Succession Act, 1956, it will be evident that the Class I heirs include not only the widow but also the daughter of the deceased. Hence, no line of distinction has been drawn between \"unmarried' and \"divorced\" daughters. A criterion which defies logic cannot be \"intelligible\" in the true sense of the term. A bare perusal of Clause 5.2.3 of the guidelines- in-question indicates that there is already a safeguard against abuse of the provisions of the scheme by including the yardstick, \"having no independent source of income\" as a condition of eligibility. Such qualification circumscribes the eligibility of unmarried daughters. Since, as per the arguments of the respondent no.1, an analogy has been sought to be drawn with the respective Matrimonial Laws of different communities, we ought to look into the efficacy of such remedies on the touchstone of efficacy. All the recourses and legal remedies open to divorced and widowed daughters require long-drawn litigation and mere rights available in the statute books. In order to get the fruit of such litigation, a widowed/divorced daughter has to wait till the end of litigation. The amount actually granted to such daughter by the court of law also acquires relevance vis-\u00e0-vis her subsistence requirements. Legal provisions cannot meet the pangs of hunger and/or urgent necessity of sustenance of human beings. As stipulated in case of unmarried daughters, widowed/divorced daughters also qualify as unmarried but have been excluded from the pension scheme. In the event Clause 5.2.5 was not there, the expression 'unmarried' could very well include within its purview widowed/divorced daughters of the pension holders as well, since their marital status would also be on an equal footing with unmarried daughters. The mere possibility of a legal remedy, or an order of court granting meager amount as maintenance is not adequate to meet the necessities of widowed/divorced daughters but they may also be dependents of their father, being the freedom fighter, in the event they do not/cannot opt for taking recourse to legal remedies and do not have income sufficient to maintain themselves. Since the rider, \"having no independent source of income\" already qualifies unmarried daughters in Clause 5.2.3 of the guidelines, such test acts as a sufficient safeguard to prevent abuse of the pension scheme by widowed/divorced daughters of the freedom fighter who otherwise have an independent source of income, be it from alimony/maintenance or from some other source. On the other hand, it may very well be that a spinster daughter of the freedom fighter has an independent income of her own, even if she does not have legal remedy as available to the widowed/divorced daughters from their matrimonial family. Since the aforesaid safeguard is already existing, the blanket exclusion of widowed/divorced daughters, including even those who do not have any personal income in lieu of maintenance or otherwise, is patently de hors Article 14 of the Constitution of India, which enshrines the guarantee of equality to all citizens. In the present case, the classification is worse than gender bias, since unmarried daughters have been included within the scheme but widowed/divorced daughters who stand on the same footing, having no independent source of income, have been excluded. Even going by the Succession Acts, daughters, irrespective of qualification, are entitled to the property of the deceased as heirs. Hence, the mere existence of a right in a statute book to get maintenance from the matrimonial family is not at all sufficient to meet the financial requirements of those widowed/divorced daughters who do not have any income. Having or not having income is undoubtedly an intelligible differential, which can easily be incorporated if widowed/divorced daughters are also brought within the purview of 'unmarried' daughters. Thus, as in the event an unmarried daughter who has no income is ineligible for the pension, widowed/divorced daughters stand on a similar footing as daughters of the deceased and shall not be eligible anyway if they have any independent source of income, which can very well be alimony or maintenance as well. However, as far as daughters having no independent source of income are concerned, widowed/divorced daughters stand on an equal footing with a spinster daughter as heirs of the deceased freedom fighter. The marital status of all of them is \"unmarried\". Thus, the criterion of exclusion of widowed/divorced daughters, as sought to be projected by respondent no.1, is untenable in the eye of law. As such, Clause 5.2.5 is patently violative of Article 14 of the Constitution of India, which ensures equality among people standing on the same footing, in the absence of reasonable classification or intelligible differentia. In view of the above discussions, the preliminary point is decided by declaring Clause 5.2.5 of the Guidelines for Disbursement of Central Samman Pensions to be followed by Authorized Public Sector Banks, issued by the Ministry of Home Affairs, FFR Division vide Memo No.45/03/2014 - FF(P) ultra vires, being violative of Article 14 of the Constitution of India. The expression \"unmarried\" as used in Clause 5.2.3 of the said Guidelines shall also include widowed/divorced daughters as eligible for the Sainik Samman Scheme-in-question, provided they satisfy the other test of having no independent source of income. Further orders on the merits of the writ petition shall be passed on the next returnable date. (Sabyasachi Bhattacharyya, J.)",
        "58138931": "$~ * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 31st January, 2020 Date of decision: 19th March, 2020 + CM(M) 1448/2019, CM APPLs. 43987/2019 & 43988/2019 DEV RAJ & ORS ..... Petitioners Through: Mr. B.B. Gupta, Senior Advocate with Mr. Devesh Pratap Singh, Advocate. (M:9999814755) versus SATPAL GULIA ..... Respondent Through: Mr. R.K. Saini, Ms. Bhavana Jain and Ms. Tavishi Vats, Advocates. (M:8447641995) CORAM: JUSTICE PRATHIBA M. SINGH JUDGMENT Prathiba M. Singh, J. 1. The Petitioners - Shri Dev Raj, Shri Shiv Raj and Shri Hans Raj were the Plaintiffs (hereinafter, \"Plaintiff Nos. 1-3\") in a suit for permanent injunction in respect of property bearing No. 223, Village Mangolpur Kalan, Delhi (hereinafter, \"suit property\"). In the said suit, an interim order was passed in the application under Order XXXIX Rules 1 and 2 CPC on 15 th February, 1994 to the following effect: - \"4. I have perused the report of the local commissioner. The local commissioner has categorically stated in his report that he served a notice upon the defendant with regard to his appointment to execute the commission but the defendant deliberately refused to accept the notice. The defendant deliberately and intentionally did not take part in the proceedings held by the local commissioner. It is reported by the local commissioner in his report that the defendant was constructing a wall with the help of the police and the wall was just adjoining the doors of the house of the plaintiffs, which were mostly about to close. After carefully considering the arguments of the plaintiff counsel and in view of the nature of the suit and inasmuch as the documents placed on record by the plaintiff counsel in support of his contention particularly when the plaintiffs claimed themselves to be the owner of the suit property_____house and whereas the defendant has failed to appear despite service and information particularly given by the local commissioner who executed the commission after giving notice to the defendant and since the doors of the house of the plaintiffs are closed on account of raising the wall and whereas it has become difficult for the plaintiffs to enter in the back portion of the house or to open the doors or to tether the cattle. I am of the view that these are the exceptional circumstances where the court must intervene and the Court should not hesitate even to grant the relief which is in the nature of the mandatory form. I accordingly allow the application moved by the plaintiffs as the defendant has not appeared despite knowledge and I order that the walls raised in front of the doors of the house of the plaintiffs be removed in order to facilitate the plaintiffs for their egress and ingress in the premises. In case the hurdle of raising the wall in front of the doors is not removed, the plaintiffs are likely to suffer irreparable loss. The plaintiffs shall remove the wall, raised by the defendant as alleged in front of the doors of the house and if necessity be the plaintiffs shall take the assistance of the local police. The local police is also directed to get this order implemented. I am of the considered view that since the defendant is absent despite knowledge inasmuch as where the process has not been received in the court issued to the defendant in pursuance to order contained in order 39 rule 3 CPC I in the interest of justice once again order that the defendant be again served with the restraint orders on filing of P.F. R.C. etc. for 28.2.94.\" The Court, by way of an interim mandatory order, had thus directed removal of the wall so as to provide access to the Plaintiffs on the basis that the Plaintiffs were the owners of the property. 2. The said suit, however, came to be finally dismissed by the ld. Trial Court vide judgment/decree dated 24th December, 1999, which reads as under: - \"17. In view of the foregoing discussions and facts and circumstances of the case and on perusal of the material placed on record, I am of the view that the plaintiff have totally failed to prove that they are the owners and entitled to possess the suit property, falls in the back portion of their houses and also failed to prove that they are entitled to open the doors towards the suit land i.e. the land pertains to khasra No.70/1/1, 70/34 and 70/32 as shown in the site plan not belonging to them.Whereas the wall which was in existence at the time of filing of the suit was demolished in pursuance of ad interim order dt. 15.2.94, therefore, the suit property be restored to its original condition. 18. In view of the foregoing discussions and facts and circumstances of the case, I accordingly dismiss the suit of the plaintiffs, with cost of Rs.5000/- Decree sheet be prepared accordingly. File be consigned to R/R.\" At the final stage, the trial court came to the conclusion that the Plaintiffs had failed to establish ownership and thus, while dismissing the suit, directed the re- construction of the wall which was demolished and restoration of the same to its original condition. 3. The said judgment/decree was challenged by Plaintiff Nos. 1-3. The first appeal was dismissed on 16th May, 2018 and the second appeal was dismissed on 14th September, 2018. In effect, the original judgment/decree was maintained by both the Appellate Courts. 4. Considering the nature of the judgment/decree which was passed by the Trial Court, the Respondent/Defendant (hereinafter, \"Defendant\") in whose favour a final order of restoration was passed by the Trial Court, sought execution of the judgment/decree. The Executing Court considered the judgment/decree and on 26th April, 2019, dismissed the objections filed by Plaintiff Nos. 1-3 and directed as under: \"20. The suit was filed in year 1993 and JDs got into the illegal possession of the suit property on 30.03.1994 and since then they are in the illegal possession of the suit property. JDs are in the possession of the suit property for the last 25 years and for that period DH has been deprived of the enjoyment of his immovable property. JDs are reaping unjust benefits from the suit property for the last 25 years and on the other hand, DH is being deprived of enjoying the suit property and of profit generated from it. Therefore, equity demands that JDs should pay damages / mesne profits to the DH for the period they were in illegal possession of the suit property and compensate the DH. 21. The photographs filed alongwith the execution petition clearly shows that suit property is used for commercial purpose i.e. as a godown for keeping marble slabs and stones. Judicial notice is taken of the fact that village Mangolpur kalan i.e. the area where the suit property is located is a well known market of marble slabs. Therefore, in the opinion of the Court, the DH is entitled to damages / mesne profit of Rs. 1 lac for each year for which the suit property was in the possession of the JDs. Hence, DH is entitled to damages / mesne profit of Rs. 25 lacs from the JDs. DH is entitled to recover the damages / mesne profit of Rs. 25 lacs only after depositing the requisite Court fee. In case, JDs did not comply with this order then DH can get the order executed through the Court so that the order can be implemented in letter and spirit. Application disposed of accordingly.\" Thus, the executing court came to the conclusion that on the basis of the initial interim injunction which was granted in favour of the Plaintiffs, they continued to enjoy benefit of the order and possession of the property since 1994, while the Defendant was deprived of the enjoyment of the property, though finally the suit was dismissed. Thus, the court observed that the Defendant ought to be compensated for enjoying the property during the said period and directed the payment of damages/mesne profits of Rs. 25 lakhs. In order to implement its order, the Executing Court appointed a bailiff vide a separate order of the same date i.e., 26th April 2019, in the following terms: \"Vide separate order passed today, the objections filed by the Jds has been dismissed and it was held that DH is entitled to erect the western boundary wall upto the height of about Nine feet, in front of four doors as shown A,B,C and D in the site plan Ex. PW 1/A and also entitled to the possession of the suit property and also entitled to have the suit property in the same condition as it was in at the time when the suit was filed and as shown in photographs no. 5 and 6 filed on 24.09.2018. Counsel for DH/defendant submitted that original position of the suit property be restored. Bailiff of this court is directed to restore the original position of the suit property i.e. erecting a wall in front of four doors as shown at A,B, C and D in the site plan attached herewith which was demolished in pursuance of court order dated 15.02.1994 and file report on the next date of hearing. Issue warrants of possession against the JD qua the suit property i.e. House No. 176 having area of 1160 sq. yards approximately in Khasra No. 70/1/1, Khasra No. 70/31, 70/32, Village Mangol Pur Kalan as shown at point ABJI in the site plan Ex. PW 1/A for NDOH on filing of PF. ................ Further permission to break open the lock is also granted if it is required to execute the warrant.\" 5. Plaintiff Nos. 1-3 thereafter preferred an appeal which has been dismissed vide the impugned order dated 16th September, 2019 on the ground that the same is not maintainable. 6. Mr. B.B Gupta, ld. Sr. Counsel appearing for Plaintiff Nos. 1-3 submits that on the issue of maintainability of the appeal, the Appellate Court was completely wrong in law. He submits that even objections under Section 47 CPC have to be treated as those filed under Order XXI Rule 97 CPC as the term \"any person\" in Rule 97 includes the Judgment Debtor. Since the objections under Order XXI Rule 97 CPC have to be decided under Rule 98 and are appealable under Rule 103, the finding of the Appellate Court is erroneous in law and the appeal has to be decided on merits. He relies on the following judgments - i. Murti Bhawani Mata Mandir Represented Through Pujari Ganesh Lal (Dead) Through Legal Representative Kailash v. Ramesh and Others, (2019) 3 SCC 707 ii. Bhanwar Lal v. Satyanarain and Another, (1995) 1 SCC 6 iii. Asgar & Others v Mohan Verma & Others 2019 (3) CLJ 16 (SC) iv Babulal v Raj Kumar & Ors. (1996) 3 SCC 154 7. On the other hand, Mr. R.K. Saini, ld. counsel appearing for the Defendant submits that this is a case of gross abuse by Plaintiff Nos. 1-3 who ensured that they enjoyed the property in question,by way of interim relief in a suit which was finally dismissed. He submits that Plaintiff Nos. 1-3 deliberately delayed the adjudication of the first appeal and have, in effect, enjoyed the property for almost 20 years after the passing of the decree. It was under these circumstances, that the Court has the power of restitution under Section 144 CPC wherein the Court, while ensuring that the benefit of the interim order which was originally passed is no longer enjoyed by Plaintiff Nos. 1-3, directed construction of the wall, as also payment of mesne profits. He submits that such an order would not be appealable, inasmuch as the Judgment Debtor was all along a party to the suit itself, and thus the order passed dismissing the objections by the Judgment Debtor would not be appealable as the same was under Section 47 CPC. 8. In order to decide whether the order dated 26th April, 2019 was an appealable order or not, what is important to be seen is the nature of the order which was passed. The Executing Courtconsidered the entire issue of restitution which was directed by the final judgement and also held that since the Judgment Debtors had come into possession of the property due to the interim/mandatory injunction which was passed by the Court on 15 th February, 1994, and the suit having been dismissed resulting in the said order being vacated, the Court ought to put the Defendant in the same position as it was, prior to the filing of the suit. In the Court\u201fs opinion, restitution was in two forms- \uf0b7 First, by restoring the original position of the property i.e. by erecting a wall which had earlier been demolished pursuant to the interim order and \uf0b7 Secondly, by directing the Judgment Debtors to pay damages for the occupation of the said property from 1994 till 2019 i.e. a period of almost 25 years. 9. The CPC contemplates various orders that can be passed in execution proceedings. Whenever there are questions which arise between the parties to the suit in respect of either the execution, discharge or satisfaction of the decree, the same can be determined by the Executing Court itself under Section 47 CPC. Section 47 reads as under: \"47. Questions to be determined by the Court executing decree. - (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court. [Explanation I. - For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit. Explanation II. - (a) For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and (b) All questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree with the meaning of this section.]\" 10. There is no dispute as to the legal proposition that if objections are filed in execution proceedings, if the Court is of the opinion that there are any complex facts evolved, evidence would have to be recorded. Bhanwar Lal (supra) cited by the Plaintiffs, holds that under Order XXI Rule 97 CPC the term \u201eany person\u201f would include a Judgment Debtor. However, the nature of the order needs to be considered to see whether an order passed by the executing court is one under Order XXI Rule 97 CPC, where the decree holder faces obstruction or resistance, or is an order which is implementing the decree. The mandatory nature of the injunction which was granted in the final judgment/decree has resulted in warrants of possession being issued by the Executing Court, and rightly so. It is the settled position that dismissal of a suit also constitutes a decree. The dismissal of the suit in the present case is not a mere dismissal, but a dismissal which entailed a final order by the Court, that the Defendant needs to be restored possession of the property, which was occupied by the Plaintiffs due to the operation of an interim order of the Court itself. Such an order, is clearly one that is passed exercising the inherent powers of the Court to restitute a party to the same position as he or she was at the time when the suit was filed when, the status quo had been changed due to an order passed by the Court, and ultimately the Court has dismissed the suit itself. The Executing Court was merely implementing the original judgment/decree. 11. The judgment in Babulal v. Raj Kumar And Others (supra) isclearly distinguishable on facts, inasmuch as in the said case, the party objecting to the execution of the decree was not a party to the original judgment/decree for specific performance. The executing court had not conducted any enquiry into the objections filed by him, and it was in that context that the Supreme Court held that the executing Court ought to have enquired into the matter. The facts in the present case are different, inasmuch as the Plaintiffs who are objecting to the execution of the decree were party to the suit since inception. They enjoyed the interim order which was originally passed by the Court. The judgment/ decree, to which they were a party has attained finality. 12. Even in Asgar & Ors v. Mohan Varma & Ors.(supra)the parties who were objecting to the decree, were not parties to the original judgment and were strangers to the decree. Since the objectors set up an independent claim, the Supreme Court held that the executing court had to decide the issue as to whether the claim was justified or not. The Supreme Court had observed as under: \"The provisions of Order XXI Rules 97 to 103 constitute a complete code and provide the sole remedy both to parties to a suit and to a stranger to a decree. All questions pertaining to the right, title and interest which the appellants claimed had to be urged in the earlier Execution Application and adjudicated therein. To take any other view would only lead to a multiplicity of proceedings and interminably delay the fruits of the decree being realized by the decree holder.\" Thus, the executing court has very vast powers while deciding an execution. The intention of the Code as also the judgements has been to ensure that delays are not caused in execution of decrees and multiplicity of proceedings is avoided, by permitting the executing courts to decide the issues even relating to title if raised. 13. The powers of the Executing Court are quite broad. Under Order XXICPC, the various steps that can be taken by the Executing Court for implementing a decree are stipulated. The same includegranting of set off, sale of the property, auctioning of the property, execution of a document, endorsement of immovable property, taking custody of movable property, directing oral examination of a Judgment Debtor, attachment of agricultural produce, orders against garnishee, attachment of salaries, attachment of partnership property, attachment of immovable property, conduct of sale by public auctioning, etc. In the case of immovable property, if there is any resistance, by any person including the Judgment Debtor, the Decree Holder can approach the Executing Court, which shall then pass orders under Order XXI Rule 98 CPC. Any order passed at the behest of a Decree Holder under Order XXI Rule 97 and 98 CPC would constitute a decree under Order XXI Rule 103 CPC. The same would then be appealable. If a person is wrongly dispossessed, such person can approach the Executing Court under Order XXI Rule 99 CPC for orders to be passed in terms of Order XXI Rule 100 CPC, which would also constitute a decree under Order XXI Rule 103 CPC. 14. The Plaintiffsargue that the orders passed by the Executing Court, first by appointing a bailiff to restore the original position of the suit property, and secondly by directing payment of damages for illegal possession are both orders under Section 47 CPC, and hence no appeal lies to the ADJ from the said order. 15. The scheme of Order XXI Rules 97 to 106 CPC is quite clear. If there is obstruction or resistance by any person, the Decree Holder approaches the Executing Court under Order XXI Rule 97 CPC. If the person in occupation has been wrongly dispossessed, so long as that person is not the Judgment Debtor, the Executing Court can be approached under Order XXI Rule 99 CPC. What happens if the Judgment Debtor who is bound by the decree is dispossessed? Would such dispossession be covered under Order XXI Rule 99 CPC or under Section 47 CPC? This issue needs to be examined. 16. The nature of the order passed in the present case has the following elements: i) the order is against the Judgment Debtors; ii) it is of a mandatory nature i.e., the Judgement Debtors have to restore the property to its original condition. The exact wording of the final decree, while dismissing the suit is as under: \"....Whereas the wall which was in existence at the time of filing of the suit was demolished in pursuance of ad interim order dt. 15.2.94, therefore, the suit property be restored to its original condition.....\" iii) the Plaintiffs did not comply with the same hence the Defendant sought execution; iv) the Judgment Debtors were the Plaintiffs in the original suit and have enjoyed possession; v) the executing court thus directs the bailiff to restore possession from the Judgment Debtors; vi) rightly or wrongly, the Executing Court has directed the Judgment Debtors to pay damages. 17. Clearly, it is the Judgment Debtors who are sought to be dispossessed. By a simple reading of Order XXI Rule 99, it is clear that the impugned order is not an order under the said provision. 18. Further, the order that has been passed by the executing court is not in respect of obstruction or resistance by the Judgment Debtors for which the Decree Holder has approached the Executing Court. The Judgement Debtors have simply failed to comply with a mandatory order or mandatory injunction. Thus, this is not an order under Order XXI Rule 97 either. In the present case, the Decree Holder has sought orders under Order XXI Rule 32 CPC for enforcement of a mandatory injunction which directed restoration of the wall to its original condition. The executing court holds that the said provision does not apply. 19. An order like the impugned order, would, in the opinion of this Court be an order under Section 47 CPC i.e., it would relate to execution, discharge or satisfaction of the decree by the Executing Court. The final decree directing restitution and the same being given effect to by the executing court, would also be an order relating to the implementation of the decree and not one under Order XXI Rule 97 CPC which contemplates resistance or obstruction to the execution of a decree. 20. The ld. ADJ exercising appellate jurisdiction, has also observed that the order passed by the Executing Court is under Section 47 and is not appealable under Order XXI Rule 103. The observations of the ld. ADJ are as under: \"12. Since the maintainability of the appeal has been seriously challenged by learned counsel for the respondent, I am of the view that it will be appropriate to test the maintainability of the appeal before going into merits. 13. The objections which were filed by the appellants before the Ld. Executing Court were titled as \u201eobjections on behalf of judgment debtors/objectors under order XXI R 97 of the Code of Civil Procedure read with all other enabling provisions and also under section 47 of Code of Civil Procedure to the execution petition filed by the alleged decree holder. The executing court while deciding the objections has observed that, \"Vide this order, the court shall decide, the objections filed by the JDs u/sec. 47 of CPC.\" The present appeal has been titled as \"Appeal u/O 21 R 58/97/98/99/100/101/103/104/105 CPC...\" 14. So far as provisions invoked in the present appeal are concerned, most of the provisions do not in any manner provide for any appeal. Only Rule 103 of Order XXI CPC prescribes that any order passed under Rule 98 on an application under rule 97 and rule 100 on an application under rule 99 of order XXI CPC shall be deemed to be a decree which means that such an order is appealable. For the purpose of provisions of Order XXI R 103 CPC, it is to be seen whether the impugned order was actually an order passed under Rule 97 to rule 100 CPC. In this regard, it is found from the record that though the application/objections were titled under order XXI Rule 97 CPC but in fact the said provision was not attracted in the given situation and probably due to this reason only the Ld. Executing Court has treated the objections only under 47 CPC which deals with the questions arising between the parties to the suit in relation to execution, discharge or satisfaction of the decree. 15. Rule 97 of Order XXI CPC deals with a remedy available to the decree holder and a purchaser of the property when there is resistance to execution of warrant of possession etc. The appellant is not a decree holder or purchaser of property in this case; so, there does not arise any question of the appellant availing the abovesaid provision. 16. Similarly, Rule 99 of Order XXI CPC deals with the remedy available to a third person who is dispossessed during execution of a decree. The appellants also do not fall in the category of third person as they were party to the suit and are judgment debtors in the present execution petition. So, this provision is also not available to the appellants. 17. There is an argument on behalf of appellant that the ld. Executing court has taken recourse to section 144 CPC, which deals with restitution, so, by virtue-of the definition of term decree u/sec. 2(2) CPC which includes an order u/sec. 144 CPC, the impugned order is appealable. In this regard, it is to be seen that, order of restitution has already been passed by the Ld. Trial Court vide judgment dated24.12.1999 and it can be taken that the ld. executing court has simply analyzed the same for the purpose of execution in its letter and spirit. The judgment dated. 24.12.1999 has already been challenged by way of first and second appeal and both appeals filed by the appellants have already been dismissed vide judgment dated 16.05|.2018 and 14.09.2018. Without commenting upon the correctness of impugned order. It can be said that the different reliefs have been granted by the ld. executing court to the decree holder while deciding the objections filed by the appellants as a measure to ensure restitution as per the judgment passed by the ld.Trial court and not as an independent measure for restitution. 18. In view of above. It can be said that the objections were treated u/sec. 47 CPC by the ld. Executing Court which deals with questions arising between the parties to the suit relating to the execution, discharge or satisfaction of the decree. It iswell settled that it is the substance and not the nomenclature which is material. So, far as an order passed u/sec. 47 CPC is concerned, the same is not an appealable order as it does, not find mention either in section 104 or in order 43 CPC which prescribe exhaustive list of the appealable orders.' There is also no special provision which makes the order u/sec. 47 CPC an appealable order. An order u/sec. 47 CPC is also not covered by the existing definition of term decreeu/sec. 2(2) of CPC. 19. Considering the above facts and circumstances, I am of the considered view that present appeal is not maintainable in this court and same is accordingly dismissed.\" 21. It is the settled position in law that the nomenclature of an application does not govern the nature of the application, or the order passed in the same. Clearly the order passed by the Executing Court in this case is one under Section 47 CPC and not under Order XXI Rule 97 CPC. The question as to whether the Judgment Debtor is covered under the term \"any person\" in Rule 97 does not even arise in the present petition inasmuch as the said provision has in fact been wrongly invoked in the title of the application. The order passed is one for implementing the mandatory injunction as granted by the original decree dated 24th December, 1999 along with restitution in the form of damages. Such an order cannot constitute an order under Order XXI Rule 97 CPC and is clearly an order under Section 47 CPC. 22. In cases of this nature, if the Judgment Debtor himself is provided repeated remedies for indirectly challenging the judgment/decree which has attained finality, that too by invoking provisions which are not applicable, the same would result in complete injustice. The decree which is sought to be executed in the present case was originally passed in 1999 i.e., two decades ago. The same was upheld in 2018.As per the said decree, the Judgment Debtors had to restore the property to its original condition which they failed to do. The Executing Court has given effect to the said decree. No issues have been raised before the Executing Court, which warrant any enquiry. If such orders are held to be appealable, the same would result in providing repeated remedies to a Judgment Debtor who was a party to the original decree which has attained finality. Any interpretation that delays the execution ought to be avoided. The ADJ -as the Appellate Court was right in the view that was taken. Accordingly, the present petition and all pending applications are dismissed. PRATHIBA M. SINGH JUDGE MARCH19, 2020 Rahul/Rg",
        "108594766": "REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6451 OF 2021 (Arising out of S.L.P. (C.) No. 14558 of 2019) N. JAYASREE & ORS. \u2026APPELLANT(S) VERSUS CHOLAMANDALAM MS GENERAL INSURANCE COMPANY LTD. \u2026RESPONDENT(S) JUDGMENT S. ABDUL NAZEER, J. Leave granted. 2. This appeal is directed against the judgment dated 09.08.2017 passed by the High Court of Kerala at Ernakulam in MACA No. 1560 of 2013. Through the impugned judgment, the High Court scaled down the amount of compensation payable to Signature Not Verified Digitally signed by Anita Malhotra Date: 2021.10.25 17:08:20 IST the present appellants and thereby modified the award dated Reason: 26.04.2013 passed by the Motor Accident Claims Tribunal, Kottayam (for short \u2018MACT\u2019) in OP(MV) No.843 of 2011. 3. The appellants filed the aforesaid claim petition before the MACT seeking compensation on account of the death of N. Venugopalan Nair in a motor vehicle accident which occurred on 20.06.2011. Appellant no.1 is the wife of the deceased, appellant nos. 2 and 3 are his daughters and appellant no.4 is his mother\u00adin\u00adlaw. 4. There is no dispute as to the occurrence of the accident and the liability of the respondent\u00adinsurer to pay the compensation. In view of this admitted position, it is unnecessary to narrate the factual aspects of the accident. 5. The deceased was aged 52 years at the time of the accident. The MACT took the annual salary of the deceased as Rs.8,87,148. To this, the MACT applied a multiplier of \u201811\u2019 and deducted one\u00adfourth (1/4th) of the income towards his personal expenses for the purpose of calculation of the compensation under the head of loss of dependency. A total sum of Rs.73,18,971/\u00ad (Rupees seventy\u00adthree lakhs eighteen thousand nine hundred seventy\u00adone only) was awarded towards loss of dependency. The MACT awarded a total sum of Rs.74,50,971/\u00ad (Rupees seventy\u00adfour lakhs fifty thousand nine hundred seventy\u00adone only) towards compensation with interest @ 7.5 per cent per annum from the date of the claim petition till the date of realization. Thus, the amount awarded to the appellants is as under: S.No. Head of Claim Amount Amount Basis vital details Claimed (in Awarded (in in a nut shell rupees) rupees) 1. Transportation 5,000/\u00ad 4,000/\u00ad In view of the transportation charges 2. Funeral expenses 10,000/\u00ad 7,000/\u00ad Nominal amount 3. Damage to clothings 1,500/\u00ad 1,000/\u00ad \u2026do\u2026\u2026 4. Loss of dependency 1,06,82,100/\u00ad 73,18,971/\u00ad (8,87,148\u00ad 2,21,787)\u00d711 =73,18,971/\u00ad 5. Pain and sufferings 10,000/\u00ad 15,000/\u00ad In view of the pain suffered by the victim before his death 6. Loss of love and 1,00,000/\u00ad 70,000/\u00ad Petitioners 2,3 affection and 4 have lost the love and affection of the victim 7. Loss of consortium 1,00,000/\u00ad 25,000/\u00ad The first petition has lost the companionship of her husband 8. Loss of estate 1,00,000/\u00ad 10,000/\u00ad Nominal amount 9. Loss of expectation of 2,00,000/\u00ad Not allowed Other heads life allowed TOTAL 1,12,08,600/\u00ad 74,50,971/\u00ad \u2026\u2026\u2026\u2026\u2026 6. However, the High Court held that appellant no.4 was not a legal representative of the deceased. Further, the High Court held that the MACT ought to have applied split multiplier for the assessment of the dependency compensation. The High Court fixed monthly income of the deceased as Rs.40,000/\u00ad (Rupees forty thousand only) and deducted one\u00adthird (1/3 rd) of the income towards his personal expenses. It applied multiplier \u20187\u2019 for calculating dependency compensation for the post\u00adretiral period and, for the pre\u00adretirement period, a multiplier of \u20184\u2019 was applied. Accordingly, the High Court awarded compensation of Rs.23,65,728/\u00ad (Rupees twenty\u00adthree lakhs sixty\u00adfive thousand seven hundred twenty\u00adeight only), towards loss of dependency for pre\u00adretiral period and a sum of Rs.22,40,000/\u00ad (Rupees twenty\u00adtwo lakhs forty thousand only) towards loss of dependency for post\u00adretiral period. A sum of Rs.1,00,000/\u00ad (Rupees one lakh only) was awarded towards loss of consortium, Rs.25,000/\u00ad (Rupees twenty\u00adfive thousand only) towards funeral expenses, and Rs.80,000/\u00ad (Rupees eighty thousand only) towards loss of love and affection. In total, a sum of Rs.48,39,728/\u00ad (Rupees forty\u00adeight lakhs thirty\u00adnine thousand seven hundred twenty\u00adeight only) was awarded as compensation by the High Court. 7. We have heard the learned counsel for the parties. Learned counsel for the appellants submits that the High Court was not justified precluding appellant no.4 as legal representative of the deceased. She is the mother\u00adin\u00adlaw of the deceased and was living with the deceased and his family members. Therefore, she was entitled to be treated as a legal representative for the purpose of determination of compensation. Accordingly, 1/4 th of the income of the deceased should have been deducted towards his personal expenses. Further, it was contended that the High Court was not justified in applying a split multiplier having regard to the judgment of this Court in Sarla Verma (Smt.) and Ors. vs. Delhi Transport Corporation and Anr.1 and the subsequent Constitution Bench judgment of this Court in National Insurance Company Limited vs. Pranay Sethi and Ors.2. It was also argued that the deceased was a meritorious person who possessed the qualification of M.Sc. M.Phil. His monthly salary was 1 (2009) 6 SCC 121 2 (2017) 16 SCC 680 Rs.83,831/\u00ad which is evident from the materials on record. The High Court took his monthly income as Rs.40,000/\u00ad for the purpose of calculation of loss of dependency without any justification. In view of the above, the High Court was not justified in scaling down the amount of compensation awarded by the MACT. 8. On the other hand, learned counsel for the respondent submits that the deceased was aged 52 years at the time of the accident. He would not have earned the same monthly income after his retirement. In view of the same, the High Court applied a split multiplier for calculating the loss of dependency. It was also argued that appellant no.4, who is the mother\u00adin\u00adlaw of the deceased, cannot be treated as his legal representative. Further, it was contended that the High Court was justified in taking the monthly salary of the deceased as Rs.40,000/\u00ad and deducting 1/3 rd of the income towards the personal expenses, fair compensation has been awarded towards loss of dependency. 9. In view of the above, the questions for consideration before us are: (I) whether the High Court was justified in precluding the mother\u00adin\u00adlaw of the deceased (appellant no.4) as his legal representative? (II) whether the High Court was justified in applying a split multiplier? (III) based on the findings on the preceding questions, what is the amount of compensation that should be awarded to the appellants? (I) whether the High Court was justified in precluding the mother\u00adin\u00adlaw of the deceased (appellant no.4) as his legal representative? 10. The provisions of the Motor Vehicles Act, 1988 (for short, \u201cMV Act\u201d) gives paramount importance to the concept of \u2018just and fair\u2019 compensation. It is a beneficial legislation which has been framed with the object of providing relief to the victims or their families. Section 168 of the MV Act deals with the concept of \u2018just compensation\u2019 which ought to be determined on the foundation of fairness, reasonableness and equitability. Although such determination can never be arithmetically exact or perfect, an endeavor should be made by the Court to award just and fair compensation irrespective of the amount claimed by the applicant/s. In Sarla Verma1, this Court has laid down as under: \u201c16. ...\u201cJust compensation\u201d is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well\u00adsettled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source of profit.\u201d 11. In Sarla Verma1 it was further held that where the deceased was married, the deduction towards personal and living expenses of the deceased should be one\u00adthird (1/3 rd) where the number of dependent family members is between 2 and 3, one\u00adfourth (1/4 th) where the number of dependent family members is between 4 and 6, and one\u00adfifth (1/5th) where the number of dependent family members exceeds six. 12. In the instant case, the appellants have contended that the mother\u00adin\u00adlaw of the deceased was staying with the deceased and his family members since a long time. Taking into consideration the number of dependents of the deceased including his mother\u00adin\u00adlaw (four in number), the MACT had deducted one fourth (1/4th) of the income towards his personal expenses. However, the High Court has held that appellant no.4 being the mother\u00adin\u00adlaw of the deceased, cannot be reckoned as a dependent of the deceased. The High Court, therefore, determined the number of dependents as 3 and accordingly deducted one\u00adthird (1/3 rd) of the income of the deceased towards his personal expenses. 13. Section 166 of the MV Act provides for filing of an application for compensation. The relevant portion of the said Section is as under: \u201c166. Application for compensation. \u2014 (1) An application for compensation arising out of an accident of the nature specified in sub\u00adsection (1) of section 165 may be made\u2014 (a) by the person who has sustained the injury; or (b) by the owner of the property; or (c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or (d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be: Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application.\u201d 14. The MV Act does not define the term \u2018legal representative\u2019. Generally, \u2018legal representative\u2019 means a person who in law represents the estate of the deceased person and includes any person or persons in whom legal right to receive compensatory benefit vests. A \u2018legal representative\u2019 may also include any person who intermeddles with the estate of the deceased. Such person does not necessarily have to be a legal heir. Legal heirs are the persons who are entitled to inherit the surviving estate of the deceased. A legal heir may also be a legal representative. 15. Indicatively for the present inquiry, the Kerala Motor Vehicle Rules, 1989, defines the term \u2018legal representative\u2019 as under: \u201cLegal Representative\u201d means a person who in law is entitled to inherit the estate of the deceased if he had left any estate at the time of his death and also includes any legal heir of the deceased and the executor or administrator of the estate of the deceased.\u201d 16. In our view, the term \u2018legal representative\u2019 should be given a wider interpretation for the purpose of Chapter XII of MV Act and it should not be confined only to mean the spouse, parents and children of the deceased. As noticed above, MV Act is a benevolent legislation enacted for the object of providing monetary relief to the victims or their families. Therefore, the MV Act calls for a liberal and wider interpretation to serve the real purpose underlying the enactment and fulfil its legislative intent. We are also of the view that in order to maintain a claim petition, it is sufficient for the claimant to establish his loss of dependency. Section 166 of the MV Act makes it clear that every legal representative who suffers on account of the death of a person in a motor vehicle accident should have a remedy for realization of compensation. 17. It is settled that percentage of deduction for personal expenses cannot be governed by a rigid rule or formula of universal application. It also does not depend upon the basis of relationship of the claimant with the deceased. In some cases, the father may have his own income and thus will not be considered as dependent. Sometimes, brothers and sisters will not be considered as dependents because they may either be independent or earning or married or be dependent on the father. The percentage of deduction for personal expenditure, thus, depends upon the facts and circumstances of each case. 18. In the instant case, the question for consideration is whether the fourth appellant would fall under the expression \u2018legal representative\u2019 for the purpose of claiming compensation. In Gujarat State Road Transport Corporation, Ahmedabad vs. Ramanbhai Prabhatbhai and Anr.3 this Court while considering the entitlement of the brother of a deceased who died in a motor vehicle accident to maintain a claim petition under the provisions of the MV Act, held as under: \u201c13. We feel that the view taken by the Gujarat High Court is in consonance with the principles of justice, equity and good conscience having regard to the conditions of the Indian society. Every legal representative who suffers on account of the death of a person due to a motor vehicle accident should have a remedy for realisation of compensation and that is provided by Sections 110\u00adA to 110\u00adF of the Act. These provisions are in consonance with the principles of law of torts that every injury must have a remedy. It is for the Motor Vehicles Accidents Tribunal to determine the compensation which appears to it to be just as provided in Section 110\u00adB of the Act and to specify the person or persons to whom compensation shall be paid. The determination of the compensation payable and its apportionment as required by Section 110\u00adB of the Act amongst the legal representatives for whose benefit an application may be filed under Section 110\u00adA of the Act have to be done in accordance with well\u00adknown principles of 33 (1987) 3 SCC 234 law. We should remember that in an Indian family brothers, sisters and brothers\u2019 children and sometimes foster children live together and they are dependent upon the bread\u00adwinner of the family and if the bread\u00adwinner is killed on account of a motor vehicle accident, there is no justification to deny them compensation relying upon the provisions of the Fatal Accidents Act, 1855 which as we have already held has been substantially modified by the provisions contained in the Act in relation to cases arising out of motor vehicles accidents. We express our approval of the decision in Megjibhai Khimji Vira v. Chaturbhai Taljabhagujri 4 and hold that the brother of a person who dies in a motor vehicle accident is entitled to maintain a petition under Section 110\u00adA of the Act if he is a legal representative of the deceased.\u201d 19. In Hafizun Begum (Mrs) vs. Mohd. Ikram Heque and Ors.5 it was held that: \u201c7. \u202612. As observed by this Court in Custodian of Branches of Banco National Ultramarino v. Nalini Bai Naique6 the definition contained in Section 2(11) CPC is inclusive in character and its scope is wide, it is not confined to legal heirs only. Instead, it stipulates that a person who may or may not be legal heir, competent to inherit the 4 AIR 1977 Guj 195 5 (2007) 10 SCC 715 6 1989 Supp (2) SCC 275 property of the deceased, can represent the estate of the deceased person. It includes heirs as well as persons who represent the estate even without title either as executors or administrators in possession of the estate of the deceased. All such persons would be covered by the expression \u2018legal representative\u2019. As observed in Gujarat SRTC v. Ramanbhai Prabhatbhai3 a legal representative is one who suffers on account of death of a person due to a motor vehicle accident and need not necessarily be a wife, husband, parent and child.\u201d 20. In Montford Brothers of St. Gabriel and Anr. vs. United India Insurance and Anr.7 this Court was considering the claim petition of a charitable society for award of compensation on account of the death of its member. The appellant\u00adsociety therein was a registered charitable society and was running various institutions as a constituent unit of Catholic church. Its members, after joining the appellant\u00adsociety, renounced the world and were known as \u2018brother\u2019. In this case, a \u2018brother\u2019 died in a motor vehicle accident. The claim petition filed by the appellant\u00adsociety seeking compensation on account of the death of aforesaid \u2018brother\u2019 was rejected by the High Court on the ground of its maintainability. 7 (2014) 3 SCC 394 This Court after examining various provisions of the MV Act held that the appellant\u00adsociety was the legal representative of the deceased \u2018brother\u2019. While allowing the claim petition it was observed as under: \u201c17. A perusal of the judgment and order of the Tribunal discloses that although Issue 1 was not pressed and hence decided in favour of the appellant claimants, while considering the quantum of compensation for the claimants, the Tribunal adopted a very cautious approach and framed a question for itself as to what should be the criterion for assessing compensation in such case where the deceased was a Roman Catholic and joined the church services after denouncing his family, and as such having no actual dependents or earning? For answering this issue, the Tribunal relied not only upon judgments of American and English Courts but also upon Indian judgments for coming to the conclusion that even a religious order or an organisation may suffer considerable loss due to the death of a voluntary worker. The Tribunal also went on to decide who should be entitled for compensation as legal representative of the deceased and for that purpose it relied upon the Full Bench judgment of Patna High Court in Sudama Devi v. Jogendra Choudhary8, which held that the term \u201clegal representative\u201d is wide enough to include even \u201cintermeddlers\u201d with the estate of a deceased. The Tribunal also referred to some Indian judgments in which it was held that successors to the trusteeship and trust property are legal representatives within the meaning of Section 2(11) of the Code of Civil Procedure.\u201d 21. Coming to the facts of the present case, the fourth appellant was the mother\u00adin\u00adlaw of the deceased. Materials on record clearly establish that she was residing with the deceased and his family members. She was dependent on him for her shelter and maintenance. It is not uncommon in Indian Society for the mother\u00adin\u00adlaw to live with her daughter and son\u00adin\u00adlaw during her old age and be dependent upon her son\u00adin\u00adlaw for her maintenance. Appellant no.4 herein may not be a legal heir of the 8 AIR 1987 Pat 239 deceased, but she certainly suffered on account of his death. Therefore, we have no hesitation to hold that she is a \u201clegal representative\u201d under Section 166 of the MV Act and is entitled to maintain a claim petition. (II) Whether the High Court was justified in applying a split multiplier? 22. The deceased was aged 52 years at the time of the accident. He was working as an Assistant Professor and getting a monthly salary of Rs.83,831/\u00ad (Rupees eighty\u00adthree thousand eight hundred thirty\u00adone only). The evidence on record shows that he was a meritorious man having the qualifications of M.Sc, M.Phil. He was a first\u00adclass holder in M.Sc. He was a Selection Grade Lecturer in Mathematics and was a subject expert. He was also included in the panel of Mahatma Gandhi University and was appointed as Examiner in the Board of Examiners for CBCCSS Programme in Mathematics. Subsequently, he was appointed as Deputy Chairman of the Examiners Board. Evidence on record also shows that there is acute shortage of lecturers in Mathematics for appointment in colleges and retired Mathematics Professors are appointed in so many colleges. It is common knowledge that the teachers, especially Mathematics teachers, are employed even after their retirement in coaching centers. They may also hold private tuition classes. This would increase their income manifold after retirement. 23. In Sarla Verma1, this Court has held that while calculating the compensation, the courts should take into consideration not only the actual income at the time of the death but should also make additions by taking note of future prospects. It was further held that though the evidence may indicate a different percentage of increase, it is necessary to standardize the addition to avoid disparate yardsticks being applied or disparate methods of calculation being adopted. 24. In Reshma Kumari & Ors. vs. Madan Mohan & Anr.9, a three\u00adJudge Bench of this Court has approved the judgment in Sarla Verma1. 9 (2013) 9 SCC 65 25. In Pranay Sethi2, this Court has not only approved the aforesaid observations made in Sarla Verma1 but also held as under: \u201c59.3. While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax. 59.4. In case the deceased was self\u00ademployed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.\u201d 26. In K.R. Madhusudhan and Ors. vs. Administrative Officer and Anr.10, this Court was considering a case where the High Court had applied split multiplier for the purpose of calculation of compensation towards loss of dependency and held as under: 10 (2011) 4 SCC 689 \u201c8. In Sarla Verma1 judgment the Court has held that there should be no addition to income for future prospects where the age of the deceased is more than 50 years. The learned Bench called it a rule of thumb and it was developed so as to avoid uncertainties in the outcomes of litigation. However, the Bench held that a departure can be made in rare and exceptional cases involving special circumstances. 9. We are of the opinion that the rule of thumb evolved in Sarla Verma1 is to be applied to those cases where there was no concrete evidence on record of definite rise in income due to future prospects. Obviously, the said rule was based on assumption and to avoid uncertainties and inconsistencies in the interpretation of different courts, and to overcome the same.\u201d 27. In Puttamma and Ors. vs. K.L. Narayana Reddy and Anr.11, this Court was again considering a case where split multiplier for the purpose of calculation of dependency compensation was applied. It was held thus: \u201c32. For determination of compensation in motor accident claims under Section 166 this Court always followed multiplier method. As there were inconsistencies in the selection of a multiplier, this Court in Sarla Verma1 11 (2013) 15 SCC 45 prepared a table for the selection of a multiplier based on the age group of the deceased/victim. The 1988 Act, does not envisage application of a split multiplier. 33. In K.R. Madhusudhan v. Administrative Officer10 this Court held as follows: (SCC p. 692, paras 14\u00ad15) \u201c14. In the appeal which was filed by the appellants before the High Court, the High Court instead of maintaining the amount of compensation granted by the Tribunal, reduced the same. In doing so, the High Court had not given any reason. The High Court introduced the concept of split multiplier and departed from the multiplier used by the Tribunal without disclosing any reason therefor. The High Court has also not considered the clear and corroborative evidence about the prospect of future increment of the deceased. When the age of the deceased is between 51 and 55 years the multiplier is 11, which is specified in the 2nd column in the Second Schedule to the Motor Vehicles Act, and the Tribunal has not committed any error by accepting the said multiplier. This Court also fails to appreciate why the High Court chose to apply the multiplier of 6. 15. We are, thus, of the opinion that the judgment of the High Court deserves to be set aside for it is perverse and clearly contrary to the evidence on record, for having not considered the future prospects of the deceased and also for adopting a split multiplier method. 34. We, therefore, hold that in absence of any specific reason and evidence on record the tribunal or the court should not apply split multiplier in routine course and should apply multiplier as per decision of this Court in Sarla Verma1 as affirmed in Reshma Kumari9.\u201d 28. From the above discussion it is clear that at the time of calculation of the income, the Court has to consider the actual income of the deceased and addition should be made to take into account future prospects. Further, while the evidence in a given case may indicate a different percentage of increase, standardization of the addition for future prospects should be made to avoid different yardsticks being applied or different methods of calculation being adopted. In Pranay Sethi2, the Constitution Bench has directed addition of 15% of the salary in case the deceased was between the age of 50 to 60 years as a thumb rule, where a deceased had a permanent job. In view of the above, the High Court was not justified in applying split multiplier in the instant case. (III) What is the amount of compensation that should be awarded to the appellants? 29. That takes us to the award of compensation. We have already noticed that the deceased was working as Assistant Professor at Devaswom Board Pampa College, Paruamala, and was drawing a monthly income of Rs.83,381/\u00ad which is clear from his salary certificate (Ex.A\u00ad5) issued by the Principal of Devaswom Board Pampa College, Paruamala. The salary slip received by the deceased for the month of May 2011 (Ex.A\u00ad6) also shows that his monthly salary was Rs.83,381/\u00ad. These documents have been marked in evidence through the Principal of the said College who was examined as PW\u00ad1. Thus, annual income of the deceased comes to Rs.10,00,572/\u00ad. This Court in Sarla Verma1 has made it clear that the Annual Income of the deceased minus the income tax should be taken into account at the time of his death for the purpose of calculation of loss of dependency. The deceased had to pay Rs.1,13,424/\u00ad towards income tax per annum. After deducting the said amount the actual income of the deceased comes to Rs.8,87,148/\u00ad. 30. The deceased was aged 52 years at the time of his death and had a permanent job. Having regard to the judgment in Pranay Sethi2, an addition of 15% of his actual salary should be added towards future prospectus. Therefore, 15% of his actual salary comes to Rs.1,33,072/\u00ad 31. Since the deceased was 52 years at the time of his death, the applicable multiplier is \u201811\u2019. As we have held that appellant no.4, the mother\u00adin\u00adlaw of the deceased is also a dependent and a \u201clegal representative\u201d under Section 166 of the MV Act, the total number of dependents left behind by the deceased is four. Hence, 1/4 th of the income (actual salary + future prospects) should be deducted towards his personal expenses. Thus, the total compensation payable towards loss of dependency is as under: (1) (i) Annual Salary Rs.10,00,572 (ii) less Tax Rs.1,13,424 (iii) Actual Salary : Rs.8,87,148 (2) Future Prospects :15% of Rs.1,33,072 Actual Salary (3) Loss of dependency : Rs.84,16,815 (1) 8,87,148 + (2) 1,33,072 \f \u2013 \u00bc i.e. Rs.2,55,055 x 11 32. In Pranay Sethi2, this Court has awarded a total sum of Rs.70,000/\u00ad (Rupees seventy thousand only) under conventional heads, namely, loss of estate, loss of consortium and funeral expenses. It was held that the said sum should be enhanced at the rate of 10% in every three years. It was held thus: \u201c59.8. Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs 15,000, Rs 40,000 and Rs 15,000 respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years.\u201d 33. The judgment in Pranay Sethi2 was rendered in the year 2017. Therefore, the claimants are entitled for 10% enhancement. Thus, a sum of Rs.16,500/\u00ad each is awarded towards loss of estate and funeral expenses. 34. A three\u00adJudge Bench of this Court in United India Insurance Co. Ltd. vs. Satinder Kaur @ Satwinder Kaur and Ors12, after considering Pranay Sethi2, has awarded spousal 12 (2020) SCC Online SC 410 : AIR 2020 SC 3076 consortium at the rate of Rs.40,000/\u00ad (Rupees forty thousand only) and towards loss of parental consortium to each child at the rate of Rs.40,000/\u00ad (Rupees forty thousand only). The compensation under these heads also needs to be increased by 10%. Thus, the spousal consortium is awarded at Rs.44,000/\u00ad (Forty\u00adfour thousand only), and towards parental consortium at the rate of Rs.44,000/\u00ad each (Total Rs.88,000/\u00ad) is awarded to the two children. 35. Thus, the appellants are entitled to compensation as under: (i) Towards Loss of Rs.84,16,815/\u00ad dependency (ii) Loss of Estate Rs.16,500/\u00ad (iii) Funeral Expenses Rs.16,500/\u00ad (iv) Spousal Consortium Rs.44,000/\u00ad (v) Parental Consortium Rs.88,000/\u00ad Total Rs.85,81,815/\u00ad 36. The appellants are also entitled to interest on the said amount at the rate of 7.5% per annum from the date of the claim petition till the date of its realization. The respondent is accordingly directed to deposit the above amount with accrued interest thereon at the rate of 7.5% per annum from the date of claim petition till the date of deposit, after deducting amounts, if any, deposited by the respondent, within eight weeks from today. 37. Resultantly, the appeal is allowed in the aforesaid terms. Parties are directed to bear their respective costs. 38. Pending applications, if any, shall also stand disposed of. \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026J. (S. ABDUL NAZEER) \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026J. (KRISHNA MURARI) New Delhi; October 25, 2021.",
        "50547742": "-1- F.A. 378.2020 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR FIRST APPEAL NO. 378 OF 2020 APPELLANTS: - 1. Smt. Mangala wd/o Vijay Khandar (Ori. Petitioners) Aged about-43 years Occu. Household. 2. Ku. Pallavi d/o Vijay Khandar, Aged about-22 years, Occu. Student 3. Sagar s/o Vijay Khandar, Aged about-21 years, Occu. Student. 4. Smt. Indubai wd/o Annaji Khandar Aged about-70 years, Occu. Household. All the Appellants No. 1 to 4 are R/o Patansawangi, Tah. Saoner, District- Nagpur. ... Versus ... RESPONDENT: - National Insurance Company Limited, (Ori. Respondent) Through its Manager, Dharampeth Branch, Laxmi Bhavan Square, Dharampeth, Nagpur-440010 --------------------------------------------------------------------------------------------------------------------------------------------------- Shri H.P. Lingayat, Advocate for the Appellants. Shri B.P. Bhatt, Advocate for the Respondent. --------------------------------------------------------------------------------------------------------------------------------------------------- CORAM : S.M. MODAK, J. DATE OF RESERVING THE JUDGMENT : 14/09/2020 DATE OF PRONOUNCING THE JUDGMENT: 29/09/2020 \\ -2- F.A. 378.2020 J U D G M E N T:- The issue involved in this appeal is about liability of insurance company to pay as per clause of ' personal accident cover' in the insurance policy. The issue is about extent of liability of insurance company when the insured/owner of the Jeep was himself the driver-cum-deceased and when no other vehicle is involved. The issue is whether the Motor Accident Claims Tribunal (for short \"M.A.C.T\") has got jurisdiction to decide such claim petition. 02] The learned Member of M.A.C.T. negatived the grievances of the claimants who are legal representatives of the deceased/insured. The legal representatives of the deceased - Vijay Annaji Khandar claimed compensation from the respondent - Insurance Company from the M.A.C.T., Nagpur by invoking the provisions of Section 163-A of the Motor Vehicles Act, 1988 (for short \"M.V. Act\"). 03] Existence of valid insurance policy was not in dispute. Deceased - Vijay Khandar was the owner of the Jeep and a policy holder. On the material date i.e. 16/10/2004 at 17:30, he was driving the Jeep on Saoner, Nagpur Road. The deceased dashed his Jeep to a tree while avoiding a head on collision with a Tata Sumo. The Sumo was coming from opposite direction and the driver take the Sumo on right side. If the deceased could not have taken right turn, further vehicular accident might have happened. -3- F.A. 378.2020 Deceased succumbed to the injuries. 04] The petition was contested by the Insurance Company - respondent. Deceased himself was the owner/insured. The Company denied their liability. The policy does not cover loss occasioned to the insured. Because he is not the third party. There is also emphasis on withdrawal of earlier claim petition filed under Section 166 of M.V. Act and non-maintainability of fresh petition under Section 163-A of M.V. Act. Both have adduced oral and documentary evidence. 05] It is true that issue of negligence is not relevant in an inquiry in a claim petition under Section 163-A of M.V. Act. Trial Court upheld the objection taken on behalf of the insurance company. Trial Court held: \"the owner/insured cannot be said to be a third party and hence exonerated the company\". It is the correctness of this judgment dated 6 th February, 2020 passed in M.A.C.P. No.6 of 2015 is challenged before this Court by the original claimants. 06] Learned Advocate Shri Lingayat and learned Advocate Shri Bhatt argued on behalf of original complainant/appellant and respondent/Company respectively. Both relied upon various judgments. Amongst them, there is unanimity that deceased/owner/insured is not a third party falling under the provisions of Section 147 of M.V. Act. So, the -4- F.A. 378.2020 scope of appeal is narrowed down. The issue is restricted-- 1) whether Insurance Company is liable to reimburse under the caption personal accident of insured? 2) whether the M.A.C.T can award compensation? 07] Both the learned Advocates have relied upon various judgments. One can claim compensation under Section 166 or under Section 163-A of M.V. Act. There can be compensation for the loss caused on account of death or permanent injury. There can be compensation for damage caused to the property. There can be a claim for compensation on account of both the heads. An accident may involve only one vehicle or it may involve more than one vehicle. 08] You may claim compensation from the registered owner only (if vehicle is not insured) or from registered owner and the insurance company. In an accident, there may be loss/damage to the occupants of the vehicle/to the vehicle or there may be loss to persons/property outside the vehicle. Law mandates the owner to obtain insurance policy. It is called as Act Policy. It is a biparty agreement between owner/insured and the company/insurer. So, the insurance company indemnifies the insured to repay if any loss is caused to a third party due to act of insured. Section 146 of M.V. Act mandates the owner to obtain insurance policy before motor vehicle is put to use. Whereas Section 147 of M.V. Act lays down -5- F.A. 378.2020 requirements of policies and limits of liability. So also the insured is free to contract with the insurer to reimburse for the personal loss caused to the occupants of the vehicle. There is a purpose behind mandating to obtain Act Policy. Once you causes an accident thereby causing damage to a third person, the interest of such third person needs to be protected. In this appeal, we are not concerned with liability to reimburse loss of third party. But we are concerned with liability of insurance company to reimburse for the loss caused to the insured as per personal accident coverage. Though, trial Court has not given finding on this issue, both the learned Advocates have consented to this Court to give finding on this issue by this Court. 09] Always, there is a controversy raised who is a 'third party'. It is not defined. In common parlance, a party other than insurer and insured is called third party. Question is always raised whether registered owner can be said to be a 'third party'. This question is no more res-integra. There are numerous judgments apart from the judgments cited before me. Learned Advocate Shri Lingayat cited these judgments because there were directions to pay as per personal accident clause (even though the insured is not treated as a third party). JUDGMENTS RELIED UPON BY THE APPELLANTS \"10.The liability under Section 163-A of the Act is on the owner of the vehicle as a person cannot be both, a claimant as also a recipient. The heirs of Janakraj could -6- F.A. 378.2020 not have maintained a claim in terms of Section 163-A of the Act. For the said purpose only the terms of the contract of insurance could be taken recourse to\". 10] These were the observations of Hon'ble Supreme Court in case of Oriental Insurance Company Limited Vs. Rajni Devi and Ors. reported in (para 10). That was a claim under Section 163-A of M.V. Act and only one vehicle (motorcycle) was involved and one of the rider expired when motorcycle went out of control. Owner paid extra amount of Rs.50/- covering his personal insurance (liability of compensation was quantified to Rs.1,00,000/-). 11] In case of Ningamma and Anr. Vs. United India Insurance Company Limited reported in 2009 (13) SCC 710, it has been held that: \"19. But if it is proved that the driver is the owner of the motor vehicle, in that case the owner could not himself be a recipient of compensation as the liability to pay the same is on him. This proposition is absolutely clear on a reading of Section 163-A of the MV Act. Accordingly, the legal representatives of the deceased who have stepped into the shoes of the owner of the motor vehicle could not have claimed compensation under Section 163-A of the MV Act.\" It has been further held: \"20. When we apply the said principle into the facts of the present case we are of the view that the claimants were not entitled to claim compensation under Section 163-A of the MV Act and to that extent the High Court was justified in coming to the conclusion that the said provision is not applicable to the facts and circumstances of the present case\". -7- F.A. 378.2020 Deceased succumbed to the injuries caused while driving motorcycle. Motorcycle hits a bullock cart (which was proceeding ahead) when the cart stops suddenly. Deceased was not the owner. He borrowed it from the owner. As such, he steps into the shoes of the owner. Claim petition was under Section 163-A of M.V. Act [however the matter was remanded to High Court for considering it under Section 166 of M.V. Act]. 12] Hon'ble Supreme Court had the occasion to decide correctness of the decision of High Court in case of National Insurance Company Limited Vs. Ashalata Bhowmik and Ors. reported in 2018 (9) SCC 801. The insurance company was held responsible to pay to the legal representatives of deceased to driver/owner of vehicle. Hon'ble Supreme Court reiterated the law regarding liability of insurance company in case of death of owner/its own insured. When insured is not liable, question of liability of insurer does not arise (however insurance company was directed to pay Rs.2,00,000/- with interest for personal accident cover). 13] In case of Ramkhiladi and Anr. Vs. The United India Insurance Company and Anr. reported in 2020 (2) SCC 550, Hon'ble Supreme Court dealt a case involving accident of two motorcycles. The driver of one motorcycle expired. His legal representatives decided not to proceed against the owner/insurance company of second motorcycle. They proceeded under Section 163-A of M.V. Act against the owner and insurance company of motorcycle driven by the deceased. -8- F.A. 378.2020 14] Learned Member of M.A.C.T. held company responsible. The deceased was held to be in the employment of the owner. High Court set aside the judgment. F.I.R. was lodged against the driver of another motorcycle and the claimants have not joined the owner and company of that motorcycle. 15] Hon'ble Supreme Court on re-appreciation of evidence held \"deceased was permissible owner and not employee of owner\" (para 5.3). Deceased was not held to be a third party and the parties are governed by the contract of insurance and liability of company would be qua 3 rd party only. The claimants were awarded Rs.1,00,000/- with interest under personal accident claim. JUDGMENTS RELIED UPON ON BEHALF OF INSURANCE COMPANY 16] According to learned Advocate Shri Bhatt in following judgments, the M.A.C.T. is held not competent to award amount as per personal accident clause. They are in case of--- 1. Smt. Sangeetha Subramani and others Vs. Sri Krishna Chari Puttachari delivered by High Court of Karnataka on 24/09/2018 (in M.F.A. No.5337/2011). 2. M/s. The Cholamandalam MS General Insurance Company Limited Vs. Ramesh Babu in C.M.A. No.2434 of 2019 and -9- F.A. 378.2020 C.M.P. No.11121 of 2019 dated 02.09.2020 delivered by High Court of Madras. 17] In case of Smt. Sangeetha Subramani, the issue was \"whether rider of a two wheeler (who is not the owner) can claim compensation as third party for an accident where no other vehicle is involved. After taking overview of the decision of High Court as well as Hon'ble Supreme Court, the issue was answered in the negative. The claimants were held not entitled to claim compensation under Section 163-A or 166 of M.V. Act. Learned Advocate Shri Bhatt stressed more on the observations, when comprehensive policy is there. In that eventuality also, the claimants are entitled not to claim compensation for own damage and premium. 18] Learned Advocate Shri Lingayat politely disagreed with those observations. I have read this judgment minutely. There cannot be a dispute about liability of company to reimburse the loss to the insured himself. The dispute is whether insurance company is also not liable to reimburse to the insured when there is personal accident cover. It will be relevant to consider in what manner, the High Court came to that conclusion. High Court of Karnataka has referred to two judgments of Hon'ble Supreme Court. They are in case of-- 1. Oriental Insurance Company Limited Vs. Rajni Devi and Ors. reported in 2008 (5) SCC 736. -10- F.A. 378.2020 2. National Insurance Company Ltd. Vs. Laxmi Narain Dhut reported in (2007) 3 SCC 700. No doubt, the High Court of Karnataka has considered the observations in case of Rajni Devi pertaining to entitlement of insured. But it is important to note that finally Hon'ble Supreme Court gave directions to pay Rs.1,00,000/- for personal accident cover. In para No. 24 of Smt. Sangeetha's Case, it has been observed: \"24. So far as claims relating to own damage are concerned, the Apex Court, in the case of National Insurance Company Limited Vs. Laxmi Narain Dhut has held that it has to be decided by another forum i.e., forum created under the Consumer Protection Act, 1985. Therefore, even if the policy is a comprehensive policy covering the risk of the insured, a claim seeking compensation for death or permanent injuries suffered by the insured, a claim petition under any of the provisions of MV Act, is not maintainable. On the same principles, if a contract policy covers not only the owner-cum-driver of the vehicle, but also covers \"any other person driving the vehicle\", the claim cannot be maintained before Motor Accidents Claims Tribunal (for short 'MACT'). The remedy lies before the Consumer Redressal Forum\" Probably, High Court of Karnataka has considered these observations even while rejecting the claim under comprehensive policy. According to learned Advocate Shri Lingayat, these observations are obiter dicta and they are not the observations on the issue involved in that case before Hon'ble Supreme Court. According to him, High Court of Karnataka committed error in accepting those observations. -11- F.A. 378.2020 19] In case of M/s. The Cholamandalam, similar issue was involved about liability of insurance company to comply with the promises given as per personal accident coverage clause of package policy. The claim was allowed by M.A.C.T. Number of contentions were raised on behalf of insurance company before the High Court. It includes the jurisdiction of M.A.C.T., entitlement to compensation (more than the maximum limit mentioned in the clause) under the phrase 'just compensation'. All the contentions were answered in favour of the insurance company and the claim petition was dismissed. Learned Advocate Shri Bhatt relied upon paragraph Nos. 28 to 38 and 41. He brought to my notice that the Court was pleased to differentiate with the observations made in case of Bajaj Allianz General Insurance Company Limited Vs. C. Ramesh reported in 2013 (1) TN MAC 325 (relied upon by the appellant). 20] Learned Advocate Shri Lingayat tried to distinguish the fact of that case. According to him, there was an objection to jurisdiction taken at the beginning itself. Whereas, in this case it is not taken. It is true that in the case of M/s. The Cholamandalam, there was jurisdiction objection taken at the beginning. It is also true that it was not decided by the M.A.C.T. 21] I have read the written statement filed on behalf of the insurance company before the trial Court. In para No.17, there was a plea taken that deceased is not third party and hence, claim is not maintainable. There was -12- F.A. 378.2020 also a plea that once earlier petition is dismissed (and restoration petition was not pressed) fresh petition on the same cause of action is not maintainable. CONCLUSION 22] With respect to those observations, I differ with the view taken by High Court of Karnataka and High Court of Madras. The issue involved before Hon'ble Supreme Court in case of Laxmi Narain Dhut is relevant to be considered. OBSERVATION IN CASE OF LAXMI NARAIN DHUT \"21. Where the claim relates to own damage claims, it cannot be adjudicated by the insurance company, but it has to be decided by another forum i.e. forum created under the Consumer Protection Act, 1986 (in short \"the CP Act\"). Before the Tribunal, there were essentially three parties i.e. the insurer, the insured and the claimants. On the contrary, before the Consumer Forums there were two parties i.e. owner of the vehicle and the insurer. The claimant does not come into the picture. Therefore, these are cases where there is no third party involved\". It will also be material to consider the background in which above observations are made. Hon'ble Supreme Court in case of National Insurance Company Limited Vs. Swaran Singh reported in 2004 (3) SCC 297 dealt with the scope of defences available to insurance company while defending the claim petition. Whereas in case of Laxmi Narain Dhut, Hon'ble Supreme Court was posed with a question \"whether the observations in case of -13- F.A. 378.2020 Swaran Singh are applicable when third party claims are not involved. It was held \"decision in Swaran Singh case has no application to cases other than third party risks\". On this background, observation in para 21 are made. So, I agree with learned Advocate Shri Lingayat that High Court of Karnataka ought not to have considered the above observations while deciding the case of Smt. Sangeetha. 23] In case of M/s The Cholamandalam, the High Court of Madras has emphasized on difference between statutory policy and contractual policy. It had also observed about maintainability of claim before M.A.C.T. when issue as to adherence to the promises as per contractual policy is involved. I have minutely read those observations. There is no dispute about difference in between statutory policy and contractual policy. It is also true that the provisions about obtaining statutory policy is recognized in Chapter XI (Insurance of Motor Vehicles Against Third Party Risks) of M.V. Act. It is also true that there is clause as to 'personal accident coverage' in the policy at Exh.37. The policy also includes covering risk of third party. I feel that the High Court in M/s The Cholamandalam's case has taken restricted view while dealing with the issue of jurisdiction of M.A.C.T. I differ with that view. The relevant provisions of M.V. Act need to be considered. RELEVANT PROVISIONS OF M.V. ACT, 1988 24] I do not accept the submission of learned Advocate Shri Lingayat that \"the insurance company can be fastened with the liability under the -14- F.A. 378.2020 provisions of sub-section 5 to Section 147 of M.V. Act\". The reason is simple. That clause will come in picture only when the policy is issued under Chapter XI. So, unless and until the issue of third party risk is involved, that provision cannot be resorted to. 25] The provisions of Section 165 of M.V. Act deal with jurisdiction of M.A.C.T. When certain conditions are fulfilled, it gets jurisdiction. They are--- a) Claim for compensation in respect of accidents. b) Arising out of use of motor vehicle. If these conditions are fulfilled, M.A.C.T gets jurisdiction. The consequences of accident may be death or bodily injury (two persons) or damage to any property of third party. Now, we have to interpret these provisions vis-a-vis the provisions of Section 147 of M.V. Act. The latter section deals with the requirements of policy in case of third party risk. Now, Section 165 of M.V. Act nowhere contemplates dealing with a claim only when policy is obtained under Section 147 of M.V. Act. We have to understand the legislative meaning for not including this requirement in Section 165 of M.V. Act. The reason is simple. There may be a possibility that a person may use a vehicle without obtaining statutory policy or he may not renew the policy. In that eventuality, it will be argued that M.A.C.T. cannot entertain the petition. However, that is not the legislative mandate. So, I am inclined to hold that petition before the M.A.C.T. will be maintainable once the condition under Section 165 of M.V. Act are fulfilled. So, in the given case, there is a clause of -15- F.A. 378.2020 personal accident coverage in case of motor accident, M.A.C.T. can entertain the petition. 26] So also I am fortified by observations of Hon'ble Supreme Court in case of The Chairman, Thiruvalluvar Transport Corporation Vs. The Consumer Protection Council reported in 1995 (2) SCC 479 and High Court of Madras in case of Bajaj Allianz General Insurance Company Limited Vs. C. Ramesh reported in 2013 (1) TN MAC 325. High Court of Madras in case of Bajaj Allianz General Insurance Company Limited has elaborately dealt with the present issue. After considering various reported and unreported judgments, it came to the conclusion that claim under personal accident cover would also lie before M.A.C.T. and there is no need for the injured/legal representative of the deceased to go to Consumer Forum (para 59). At the same time, it will be relevant to see what our Hon'ble Supreme Court has held about the jurisdiction of the Consumer Forum. This situation has arisen in case of Consumer Protection Council as referred above. The complaint was made directly to National Commission by Consumer Protection Council to claim up compensation due to death of a traveler of a bus. It was granted. When the State Transport Corporation have approached the Hon'ble Supreme Court, the decision was set aside. 27] After taking overview of the provisions of Consumer Protection Act and Motor Vehicles Act, it was held that Consumer Court is not having -16- F.A. 378.2020 jurisdiction. The Motor Vehicles Act is a special law dealing with motor accident compensation, whereas Consumer Protection Act is a general law dealing with grievances of consumers. The complaint was scrutinized in the light of the definition of Complaint and Service given in 1986 Act. It was held that failure of the insurance company to accept the claim does not amount to deficiency in service. It was observed \"the complaint, in the instant case, cannot be said to be in relation to any service hired or availed of by the consumer because the injury sustained by the consumer had nothing to do with the service provided or availed of by him but fatal injury was the direct result of the accident. 28] It is pertinent to note that, Hon'ble Supreme Court in the cases referred above i.e. in cases of Rajni Devi, Ashalata Bhowmik and Ramkhiladi was pleased to award compensation as per personal accident cover. FINAL CONCLUSION 29] For the above discussion, I am not inclined to accept the contention of Shri B.P. Bhatt, learned Advocate for the respondent that M.A.C.T. cannot entertain the claim made by the insured/owner under personal accident claim against the insurance company. Dismissal of Petition filed under Section 166 of M.V. Act was not on merits but it was for default. Restoration application was also dismissed for default so, it will also not come in the way of claimants. -17- F.A. 378.2020 FACTUAL ASPECTS 30] Amongst the claimants, claimant - Smt. Mangala Khandar (wife of the deceased) has given evidence. She is not the eye witness. One Purushottam Bonde has given evidence. He was travelling in the Tata Sumo Jeep driven by the deceased. He had seen the accident. In order to avoid collision when the truck coming from the opposite direction, the deceased was compelled to take right turn and the jeep hits the tree. Whereas Nilima Ramesh Godbole is the representative of the insurance company. She had brought on record the certificate of insurance at Exh.37. She admits that as per the personal accident cover risk up to Rs.2,00,000/- is covered. The company has paid Rs.35,000/- towards the damage of the vehicle but she admits that no document to that effect has been filed. 31] I am not inclined to interfere in the findings given by the learned Member of M.A.C.T. on the point of non-applicability of the provisions of Section 163-A of M.V. Act to the present claim. I conquer with him. It is not clear whether the claimants have argued before the learned Member of M.A.C.T. about invocation of personal accident cover or it was argued but not answered by the learned Member of M.A.C.T. Already, the parties have adduced the evidence and they were aware about the contents of the contract. The terms have been reduced in the certificate of insurance. (Though the details of compensation vis-a-vis injuries does not find place in -18- F.A. 378.2020 Exh.37). 32] It is undisputed fact that Rs.100/- was paid towards the premium compulsory personal accident to owner-cum-driver and maximum liability is quantified to Rs.2,00,000/-. I think the appellants are entitled to get Rs.2,00,000/- from the Insurance Company. So, I am inclined to allow the appeal. The appellants are also entitled to get interest @ 6% on this amount from the date of filing of the petition till recovery. Hence, I pass the following order:- ORDER i. The appeal is allowed. ii. The judgment dated 6th February, 2020 delivered in Special Claim Petition No.6/2015 is set aside (only to the extent of not granting compensation under personal accident cover). iii. The claim petition is allowed. iv. The respondent - Insurance Company is directed to pay Rs.2,00,000/- (rupees two lakhs only) to the appellants towards the compensation on account of death of Vijay Khandar along with the interest @ 6% from the date of filing of petition till realization. v. On depositing the amount, the M.A.C.T. is directed to -19- F.A. 378.2020 distribute it as follows:- a) An amount of Rs.25,000/- (rupees twenty five thousand only) be paid to appellant No.4 - Smt. Indubai Khandar. b) An amount of Rs.25,000/- (rupees twenty five thousand only) be kept in fixed deposit with any Nationalized Bank in the name of appellant No.3 - Sagar Vijay Khandar till the time he attains the majority. c) An amount of Rs.1,00,000/- (rupees one lakh only) be paid to appellant No.1 - Smt. Mangala Khandar. d) An amount of Rs.50,000/- (rupees fifty thousand only) be paid to appellant No.2 - Ku. Pallavi Khandar (who must have attained the majority up till now). e) The amount of interest be paid to appellant No.1 - Smt. Managala Khandar only. f) The cost of the main petition and this appeal be paid to the appellants by the respondent. g) The amount to be deposited within 15 days with M.A.C.T., Nagpur. vi. Decree be drawn up. vii. Record and proceedings be sent back. -20- F.A. 378.2020 Civil Application (CAF) No.1123/2020 In view of the disposal of the first appeal, this application praying for dispense with typed copy of handwritten Document/Annexure Nos.6 to 16 and 20 does not survive. It is disposed of accordingly. JUDGE vijay",
        "1052174": "JUDGMENT J.P. Devadhar, J. 1. This petition was originally filed on 22nd February, 2002 challenging the Circular dated 3rd September, 2001 issued by the Director General of Foreign Trade (DGFT) directing the Licensing Authorities not to issue any duty free advance licence for import of nature rubber until further orders. The petitioner had also challenged the inaction on the part of the State Trading Corporation of India Ltd. (S.T.C.) in refusing to import natural rubber under the advance licence, granted to the petitioner on 8-10-2001. During the pendency of this writ petition, show cause notice dated 29-4-2002 was issued for cancellation of advance licence granted to the petitioner on 8th October, 2001. A public notice dated 20th May, 2002 was also issued by DGFT to amend the Hand Book of procedures for 2002-2007 so as to prohibit duty free import of natural rubber. The petitioner was allowed to amend the petition so as to challenge the validity of the aforesaid show cause notice dated 29th April, 2002 and also challenge the validity of the public notice dated 20th May, 2002. 2. The short question that arises for our consideration in this petition is when the statutory provisions of the import policy specifically permits import of natural rubber duty free under an advance licence, is it open to the implementing agency, namely the DGFT to prohibit/ban import of natural rubber under an advance licence ? 3. Before dealing with the facts of the case, it is necessary to set out the relevant policy provisions. 4. Section 5 of the Foreign Trade (Development and Regulation) Act, 1995 ('Act' for short) empowers the Central Government to announce the export-import policy (EXIM Policy) and also amend that Policy form time to time. Section 6 of the Act empowers the Central Government to appoint any person as DGFT to advice the Government in the formulation of the policy, to carry out the policy and to exercise such powers as is conferred upon him by the Central Government in implementing the EXIM policy. However, Section 6(3) of the said Act provides that the power to amend the policy cannot be delegated to the DGFT and it is the prerogative of the Central Government only, to amend the policy. Section 7 of the said Act provides that no person shall make any import or export except under the importer and exporter code number granted by DGFT or any other officer authorised by him in accordance with the procedure specified in that behalf by the DGFT. 5. In exercise of its powers under Section 5 of the said Act, the Central Government has been announcing and publishing EXIM Policy from time to time and for the period 2002-2007, the EXIM Policy announced by the Central Government came into.force with effect from 1-4-2002 and is valid upto 31-3-2007. The said EXIM policy clearly provides that the right to amend the policy by a notification in the Gazette is vested in the Central Government only. Chapter 2 of the EXIM policy 2002-2007 contains general provisions regarding imports and exports. Para 2.1 of Chapter 2 provides that exports and imports shall be free except in cases where they are regulated by the provisions of the policy. Para 2.4 of Chapter 2 empowers DGFT to specify the procedure to be followed by an exporter or importer or by any licensing authority in implementing the policy and that, such procedure prescribed by the DGFT shall be included in the Hand Book and published by means of a public notice. Under the said para, DGFT is empowered to amend the procedure and publish the same by way of public notice. 6. Chapter 4 of the EXIM policy 2002-2007 provides for grant of advance licence under which duty free import of inputs to be used in the export product ate permitted. Para 4.1.5 of the Chapter 4 provides that the advance licence shall be issued in accordance with the EXIM Policy and the procedure in force on the date of the issue of licence. The procedure for import/export of the items under the policy are contained in the compilation of Hand Book of procedure notified by DGFT in pursuance of the provisions of para 2.4 of the policy. 7. It is not in dispute that under the EXIM policy 2002-2007 as well as earlier EXIM policy for the period 1997-2002 published by the Central Government, the natural rubber could be imported freely in India, either on payment of duty or duty free under an advance licence, as an in put for the export product. 8. Now, turning to the facts of the case, the petitioner who manufactures rubber gaskets and exports the same, was entitled to import natural rubber as an input for using it in the manufacture of the final product namely rubber gasket. The Licensing Authority in accordance with the prevalent EXIM policy had issued an advance licence on 8-10-2001, thereby permitting the petitioner to import 14,230 Kgs. of natural rubber duty free as it was to be used in the manufacture of rubber gaskets (rings) and then exported. Since the imports were to be effected through the S.T.C. (respondent No. 5), the petitioner approached the S.T.C. who by their letter dated 19th December, 2001 (Exhibit-C to the petition) stated that the permissibility of duty free import of natural rubber under the advance licence, is under consideration of the Ministry of Commerce and only on clearance from the said Ministry, the imports can be effected under the advance licence granted to the petitioner. In the meantime, DGFT had issued various circulars, including the circular dated 3-9-2001 (Exhibit-H to the petition) directing all the Licensing Authorities not to issue any advance licence until, further orders. Challenging these actions, as well as the subsequent action of the Jt. DGFT in purporting to cancel the advance licence issued to the petitioner as well as the amendment sought to be made to the Hand book of procedures by the public notice dated 20th May, 2002, the present petition has been filed. 9. Mr. Bharucha, learned Counsel for the petitioner submitted that when the statutory provisions contained in the EXIM policy published under Section 5 of the Act permit import of duty free natural rubber under an advance licence, it is not, open to the implementing agency namely DGFT to lay down procedures contrary to the policy and prohibit import of natural rubber under an advance licence. It was submitted that if for any reason the Central Government thought it fit that in public interest it is necessary to prohibit the duty free import of natural rubber under an advance licence, then it is open to the Central Government to amend the policy to that effect. But in the absence of any amendment to the policy, it is not open to the DGFT to issue public notice to prohibit duty free import of natural rubber under an advance licence. Therefore, the impugned circulars and the public notice issued by the DGFT being in contravention of the policy are liable to be quashed and set aside. It was submitted that once the circulars issued by the DGFT seeking to prohibit the import of duty free natural rubber are quashed, then the show cause notice issued to the petitioner to cancel the advance licence based on the aforesaid circular, is also liable to be quashed, it was submitted that the public notice dated 20th May, 2002 (Exhibit H-6), which purports to amend the Hand Book of procedure by prohibiting import of duty free natural rubber under advance licence is without Jurisdiction, being in contravention of the EXIM policy and hence liable to be quashed and set aside. An alternative submission was made that the procedural amendment effected by public notice dated 20-5-2002 does not have retrospective effect and, therefore, cannot affect import permitted under the advance licence issued to the petitioner on 8-10-2001. 10. Mr. Rana, learned Counsel appearing on behalf of the Revenue, on the other hand submitted that the imports of natural rubber, permitted under the policy is not rendered nugatory by the circulars issued by the DGFT and the amendments effected to the Hand Book of procedures. It was submitted that even after the impugned circulars and amendment to the Hand Book of procedures, the natural rubber can be imported as per the EXIM Policy. It was submitted that it was open to the petitioner to import natural rubber on payment of duty and if the same are used as input in the export products, then on export, of the said goods, the petitioner is entitled to duty drawback and, therefore, the petitioner is not in any way prejudiced by the circulars issued by DGFT it was submitted that over the years there has been considerable decline in the price of natural rubber as a result, the domestic market, which is dominated by the small growers has been badly effected. Under the circumstances, the Government in the past had stepped in with a view to support domestic market and took measures in banning imports of natural rubber against the advance licence with effect from 20th February, 1999 and also took regulatory measures by permitting quantitative import of natural rubber through S.T.C., etc. However, with the lifting of quantitative restrictions with effect from 1-4-2001 under the new policy of the Government, the import of natural rubber have become free. This has led to surge in the imports of natural rubber, which has further depressed the prices of natural rubber in the domestic markets, which in turn has affected the domestic industry. It was submitted that in these circumstances, A.L.C. circulars were issued by the DGFT to defer the issuance of duty free advance licence as the matter was under the active consideration of the Ministry of Commerce. It was submitted that since the advance licence dated 8-10-2001 was issued to the petitioner erroneously and in violation of the A.L.C. circular, the show cause notice dated 29th April, 2002 was issued calling upon the petitioner to show cause as to why the advance licence erroneously issued should not be cancelled. It was submitted that the DGFT is empowered under the policy to amend the Hand Book of procedure and in view of the amendment effected to the Hand Book of procedure by the public notice dated 20th May, 2002, the petitioner cannot import the natural rubber duty free under the advance licence, but is entitled to import on the same payment of duty and it utilised in the manufacture of export product, then on export can claim duty drawback. Accordingly, it was submitted that the petitioner is not entitled to any relief in the present petition. 11. After hearing Counsel on both sides and after perusing the records placed before us, we are of the opinion that the A.L.C. circulars and the public notice dated 20th May, 2002 issued by the DGFT, cannot be sustained as they are wholly inconsistent with the EXIM policy framed by the Central Government and in fact they purport to amend the EXIM Policy provisions which power is exclusively vested in the Central Government and not with the DGFT. It is pertinent to note that the EXIM policy announced by the Central Government in exercise of the powers vested in it under Section 5 of the said Act has statutory force. It is not in dispute that under the EXIM policy prevalent in 1997-2002 as well as 2002-2007, natural rubber could be imported duty free under an advance licence (except for the period when the Central Government had banned import of natural rubber under an advance licence). Under these circumstances, the implementing agency namely, the DGFT who is empowered to prescribe the norms and the procedures for implementing the EXIM policy could not prohibit import of natural rubber under advance licence, when the EXIM policy specifically permits import of natural rubber under an advance licence. The impugned Circulars and the public notice issued by DGFT, in fact, nullify the express provisions of the EXIM Policy framed by the Central Government. Power to amend the policy being within the exclusive domain of the Central Government the said powers cannot be usurped by the DGFT in the guise of laying down regularly measures. By prohibiting import of natural rubber under the advance licence in the Hand Book of procedures, the DGFT has encroached upon the powers of the Central Government and purported to amend the EXIM policy 2002-2007 which power is not conferred upon the DGFT. As stated hereinabove Section 6(3) of the Act expressly prohibits the DGFT from exercising the power of amending the EXIM Policy. Therefore, in the absence of any power under the statute, the A.L.C. circulars and the public notice dated 20th May, 2002 to prohibit import of natural rubber under Advance licence could not be issued by the DGFT. The said circulars and public notice being wholly contrary to the police provisions of the Central Government, cannot be sustained and are liable to be quashed and set aside. 12. The arguments of the revenue that the prohibition of duty free import of natural rubber under advance licence does not affect the right of the petitioner to import natural rubber without the advance licence, is without any merits because, the petitioner, as an exporter has every right under the policy to import inputs such as natural rubber duty free under the advance licence for use in the export product and in the absence of any amendment to the policy, that right of the petitioner cannot be taken away on the pretext of laying down the norms or the procedure in implementing the EXIM Policy. The Hand Book of procedures prescribed by the DGFT must be in consonance with the policy and must aid and advance the policy of the Central Government and not scuttle or defeat the policy. In the instant case, the Hand Book of procedure has been amended by the DGFT to prohibit duty free import of natural rubber under the advance licence when the EXIM Policy expressly permits duty free import of natural rubber under an advance licence. Therefore, the impugned circulars and the public notice are beyond the scope and ambit of the powers vested in DGFT and, therefore, liable to be quashed and set aside. 13. From the affidavit-in-reply filed by Shri Sanjay Lunia, Jt. Director, DGFT on behalf of the revenue, it is seen that in the past whenever deemed fit the Central Government had intervened and in fact prohibited import of natural rubber against advance licence with effect from 20th February, 1999 and even regulated import of natural rubber on quantitative basis through S.T.C. However, with effect from 1st April, 2001, the Central Government lifted the restrictions imposed by it thus making imports/ exports of natural rubber, totally free. From the said affidavit filed on behalf of the Revenue, it is further seen that in view of heavy import of natural rubber during the period in 2001-2002, the Central Government, especially the Ministry of Commerce, took up the issue of grant of duty free advance licence for reconsideration and in the meantime, DGFT issued A.L.C. circulars to withhold the issuance of advance licence pending the final decision by the Ministry of Commerce. Thereafter, on 1st April, 2002 the Central Government announced the EXIM policy 2002-2007 wherein after considering the issue, the Central Government, decided to permit duty free imports of natural rubber under an advance licence. Thus when the Central Government in exercise of its statutory power and on reconsideration of the matter has taken a policy decision to permit duty free import of natural rubber under advance licence as late as on 2-4-2002, it is not open to the implementing agency namely the DGFT to prohibit duty free import of natural rubber under advance licence by issuing circulars or by amending the Hand Book of procedure. Thus, the action on the part of the DGFT in purporting to prohibit duty free import of natural rubber is totally in breach of the policy decision taken by the Central Government and, therefore, the circulars and the public notice issued by the DGFT to prohibit the import of natural Rubber under advance licence must be held to be null and void, without jurisdiction and liable to be quashed and set aside. 14. The Apex Court in the case of University of Kashmir and Ors, v. Mohammad Yasin and Ors., has laid down the following proposition of law :-- \"When a statute creates a body and vests it with authority and circumscribes its powers by specifying limitations, the doctrine of implied engagement de hors the provisions and powers under the Act would be subversive of the statutory scheme regarding appointments of officers and cannot be countenanced by the Court. Power in this case has been vested in the University Council only and the manner of its exercise has been carefully regulated. Therefore, the appointment of the . respondent could be made only by the Council and only in the mode prescribed by the statute.\" Respectfully following the aforesaid ratio of the Apex Court, we hold that the impugned circulars and the public notice amending the Hand Book of Procedures in fact, amount to amend the policy by an authority other than the Central Government which is not permissible in law. Hence the impugned circulars and the public notice issued by the DGFT being without authority of law, are liable to be quashed and set aside. 15. The procedures to be prescribed by an authority in implementing the policy must be in consonance with the policy. If the procedural norms are in conflict with the policy, then the policy will prevail and the procedural norms to the extent they are in conflict with the policy, are liable to be held to be bad in law. In the instant case, since the impugned circulars and the public notice issued by DGFT are in conflict with the policy, the same are liable to be quashed and set aside. 16. In the premise aforesaid, the petition succeeds. The A.L.C. circulars including circular dated 3rd September (Exhibit-H) and the public notice dated 20th May, 2002 (Exhibit-H-6) purporting to prohibit duty free import of natural rubber under advance licence are quashed and set aside. Consequently, the show cause notice dated 29-4-2002 (Exhibit-H-1) issued in the light of circulars of DGFT is also quashed and set aside. Rule is made absolute in the above terms. However, in the facts and circumstances of the case, there will be no order as to costs.",
        "1572927": "PETITIONER: RANJIT THAKUR Vs. RESPONDENT: UNION OF INDIA AND ORS. DATE OF JUDGMENT15/10/1987 BENCH: VENKATACHALLIAH, M.N. (J) BENCH: VENKATACHALLIAH, M.N. (J) SEN, A.P. (J) CITATION: 1987 AIR 2386 1988 SCR (1) 512 1987 SCC (4) 611 JT 1987 (4) 93 1987 SCALE (2)773 CITATOR INFO : R 1988 SC1099 (6) D 1991 SC1617 (10,26,33,34) R 1992 SC 188 (5) R 1992 SC 417 (5) ACT: Army Act, 1950/Army Rules, 1954: Sections 41 and 130/Rules 106-133-Court Martial-When proceedings vitiated- Participation of officer who has punished accused-Whether amounts to bias-Soldier-Refusing to eat food-Whether amounts to disobedience of lawful command. Constitution of India, 1950: Articles 32, 136 and 226- Judicial Review-Irrationality and perversity-Extentof. Administrative Law: Natural Justice-Fair Trial-Judgment only after due observance of Judicial Process-Quantum of punishment disproportionate to offence Whether conclusive evidence of bias. Interpretation of Statutes: Procedural safeguards- Statutory Provisions-How to be construed. HEADNOTE: % The appellant, a Signal Man in a Signal Regiment of the Armed Services, while serving out a sentence of 28 days' rigorous imprisonment imposed on him by the Commanding officer of the Regiment respondent No. 4, for violating norms for presenting representations to higher officers, was alleged to have committed another offence by refusing to eat his food on March 29, 1985 when ordered to do so. He was charged under section 41(2) of the Army Act, 1950 for disobeying a lawful command given by his superior officer. A sentence of rigorous imprisonment for one year was imposed by a Summary Court Martial consisting of respondent No. 4 and others. He was removed to the civil prison and he served out the sentence. The appellant's representation to the confirming authority under section 164 of the Act was rejected by the General officer Commanding on May 24,1985. The appellant's writ petition challenging proceedings of the Summary Court-Martial was dismissed in limine by the High Court. 513 In the appeal by special leave, it was contended on behalf of the appellant that the proceedings of the Court- Martial were vitiated (i) by a non-affording of an opportunity to challenge the constitution of the Summary Court-Martial under section 130(1); (ii) by bias on the part of the respondent No. 4 who participated in and dominated the proceedings; (iii) by awarding a punishment so disproportionate to the offence as to amount in itself to conclusive evidence of bias and vindictiveness; and (iv) by ignoring that as the appellant was then serving-out an earlier sentence he could not be need to be in active- service so as to be amenable to disciplinary jurisdiction and that the appellant's refusal, while already serving a sentence, to accept food did not amount to disobedience under section 41, of any lawful command of a Superior officer. Allowing the appeal, ^ HELD: 1.1 The Indian Army Act, 1950 constitutes a special law in force conferring a special jurisdiction on. the Court-Martial prescribing a special procedure for the trial of the offences under the Act. The Act and Rules constitute a self-contained Code specifying offences and the procedure for detention, custody and trial of the offenders by the Court-Martial. [518G-H; 519A] 1.2 The procedural safeguards contemplated in the Act must be considered in the context of and corresponding to the plenitude of the Summary jurisdiction of the Court- Martial and the severity of the consequences that visit the person subject to that jurisdiction. The procedural safeguards should be commensurate with the sweep of the powers. The wider the power, the greater the need for the restraint in its exercise ad correspondingly, more liberal the construction of the procedural safeguards envisaged by the Statute. [519B-C I 1.3 Non-compliance with the mandate of section 130 is an infirmity which goes to the root of jurisdiction and without more, vitiates the proceedings. [519F] Prithvi Pal Singh v. Union of India, AIR 1982 SC 1413 relied on. Vitarelli v. Seaton, 359 U.S. 535 referred to. 514 2.1 It is the essence of a judgment that it is made after due observance of the judicial process; that the Court or Tribunal passing it observes, at least the minimal requirements of natural justice, is composed of impartial persons. acting fairly and without bias and in good faith. A judgment which is the result of bias or want of impartiality is a nullity and the trial 'coram non judice'. [520D-E] Vassiliades v. Vassiliades, AIR 1945 PC 38 referred to. 2.2 As to the tests of the likelihood of bias what is relevant is the reasonableness of the apprehension in that regard in the mind of the party. The proper approach for the Judge is not to look at his own mind and ask himself, however, honestly, \"Am I biased\"? but to look at the mind of the party before him. [520F] Allinson v. General Council of Medical Education and Registration, [1894] 1 Q.B. 750 at 758; Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon, [1969] 1. Q.B. 577 d 599; Public Utilities Commission of the District of Columbia v. Pollack, 343 US 451 at 466 and Regina v. Liverpool City Justices, Ex-parte Topping, [1983] 1 WLR 119 referred to. Having regard to the antecedent events, the participation of respondent No. 4 in the Courts-Martial rendered the proceedings Coram non judice. [522B] 3. The mere circumstance'that the appellant was at the relevant point of time, serving a sentence of imprisonment and could not, therefore, be said to be in 'active service' does not detract from the fact that he was still a person subject to the Act, as is clear from the second clause of section 41(2) which refers to offences committed when not in 'active service', the difference being in the lesser punishment contemplated. [522C-D] 4. Every aspect of life of a soldier is regulated by discipline. Rejection of food might, under circumstances, amount to an indirect expression of remonstrance and resentment against the higher authority. To say that a mere refusal to eat food is an innocent, neutral act might be an over simplification of the matter. Mere in-action need not always necessarily be neutral. Serious acts of calumny could be done in silence. A disregard of a direction to accept food might assume the 515 complexion of disrespect to, and even defiance of authority. But an unduly harsh and cruel reaction to the expression of the injured feelings may he counter-productive and even by itself be subversive of discipline. [522E-F] In the instant case, appellant was perhaps expressing his anguish at, what he considered, an unjust and disproportionate punishment for airing his grievances before his superior officers. [522G] 5. Judicial review generally speaking, is not directed against a decision, but is directed against the \"decision making process\". The question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court-Martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the Court-Martial, if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review. All powers have legal limits. [522G-H; 523A-C] Council of Civil Service Unions v. Minister for the Civil Service, [1984] 3 Weekly Law Reports 1174 HL and Bhagat Ram v. State of Himachal Pradesh, A.I.R. 1983 SC 454 referred to. In the instant case, the punishment is so strikingly disproportionate as to call for and justify interference. [523G] The Court order set aside. The writ petition in the High Court allowed, and the impugned proceedings of Summary Court-Martial and the consequent order and sentence quashed. Appellant entitled to be reinstated with all monetary and service benefits. [523H, 524A] (Note: on point 1.3 the finding is to be read with and subject to the subsequent order dated 10.8.88). JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2630 of 1987. From the Judgment and order dated 3.?.1986 of the Patna High Court in C.W.J.C. No. 2823 of 1986. R.N. Sinha, M.M. Prasad Sinha and P.C. Kapur for the Appellant. B. Datta, Additional Solicitor General, M.S. Rao, C. Ramesh and C.V.S. Rao for the Respondents. The Judgment of the Court was delivered by VENKATACHALIAH, J. This appeal, by special leave, preferred against the order dated July 3, 1986, of the Division Bench of the Patna High Court in C.W.J.C. No. 2823 of 1986 raises a substantial question as to the scope and content of the procedural safe-guards in Section 130 of the Indian Army Act, 1950 ('Act') in the conduct of the Courts- Martial. The High Court dismissed, in limine, the appellant's writ petition, under Article 226, challenging the proceedings dated March 30, 1985, of the Summary Court- Martial imposing the punishment of dismissal from service and a sentence of an year's rigorous imprisonment on the appellant. 2. Appellant, Ranjit Thakur, joined the Armed Services on September 7, 1972, and was, at the relevant time, a Signal Man in \"4, Corps operating Signal Regiment.\" Apparently, appellant had not commended himself well to respondent No. 4, who was the commanding officer of the regiment. On March 29, 1985, appellant was already serving- out a sentence of 28 days' rigorous imprisonment imposed on him for violating the norms for presenting representations to higher officers. Appellant is stated to have sent representation complaining of ill-treatment at the hands of Respondent 4 directly to the higher officers. Appellant was punished for that by Respondent 4. Appellant was held in the Quarter-guard Cell in handcuffs to serve that sentence of rigorous imprisonment. 3. While so serving the sentence appellant is stated to have committed another offence on March 29, 1985, for which the punishment now impugned was handed down by Respondent 4. The nature of this offence had better be excerpted from the charge-sheet itself: \"The accused No. 1429055 M Signalman Ranjit Thakur of 4 Corps operating Signal Regiment is charged with- Army Act Section 41(2) Disobeying a lawful command given by his superior officer Section 41(2) In that he at 15.30 hrs. On 29.5.1985 when ordered by JC 10625 lP Sub Ram Singh, the orderly officer of the same Regiment to eat his food, did not do so.\" To try this offence a Summary Court Martial was assembled the very next day i.e. March 30, 1985. Respondent 4 and 2 others were on the Court-Martial. Some witnesses were examined. Appellant is stated to have pleaded guilty. A sentence of rigorous imprisonment for one year was imposed, in pursuance of which appellant was removed immediately to the civil prison at Tejpur to serve out the sentence. Appellant has served out the sentence. He was also dismissed from service, with the added disqualification of being declared unfit for any future civil employment. The representation of the appellant to the confirming-authority under Section 164 of the Act was rejected by General of ficer Commanding on 24.5.1985. The High Court, however, persuaded itself to dismiss, in limine, appellant's writ petition challenging the proceedings of the Summary Court Martial. 4. We have heard learned counsel on both sides. The matter was adjourned on two earlier occasions on the submission of the learned Additional Solicitor General, that the question whether a lesser punishment was warranted was engaging the attention of the appropriate authorities. Apparently, nothing came out of it. F The submissions of Shri Sinha, in support of the appeal, admit of being formulated thus: (a) (i) The proceedings of the Court-Martial are vitiated by non-compliance with the mandate of Section 130(1) of the Act in that the Summary Court Martial did not afford to the appellant an opportunity to challenge its constitution as required by that section; (ii) The proceedings of the Court-Martial were vitiated by bias on the part of Respondent 4 who participated in and dominated the proceedings; H (b) In as much as the appellant was then serving a sentence of rigorous imprisonment, he was not in \"active service\" and that no question of disobeying any lawful command could at all arise; (c) Appellant's refusal, while serving a sentence to accept food did not amount to disobedience, under Section 41, of any lawful command of a superior officer in such manner as to show a wilful defiance of authority; (d) At all events, the punishment handed down is so disproportionate to the offence as to amount, in itself to conclusive evidence of bias and vindictiveness. 5. Re: contention (a): The records of the proceedings of the Special Summary Court Martial do not indicate that the procedural safeguard against bias contained in Section 130 of the Act was complied with. Section 130 provides: \"130(1) At all trials by general district or summary general court-martial, as soon as the court is assembled, the names of the presiding officer and members shall be read over to the accused, who shall thereupon be asked whether he objects to being tried by any officer sitting on the court. (2)If the accused objects to any such officer, his objection, and also the reply thereto of the officer objected to, shall be heard and recorded, and the remaining officers of the Court shall, in the absence of the challenged officer decide on the objection.\" The proceedings do not indicate-this was not disputed at the hearing-that appellant was asked whether he objects to be tried by any officer, sitting at the Court-Martial. This, in our opinion, imparts a basic infirmity to the proceedings and militates against and detracts from the concept of a fair trial. The \"Act\" constitutes a special law in force conferring a special jurisdiction on the Court-Martial prescribing a special procedure for the trial of the offences under the 'Act'. Chapter VI of the 'Act' comprising of sections 34 to 68 specify and define the various offences under the 'Act'. Sections 7] to 89 of Chapter VII specify the various punishments. Rules 106 to 133 of the Army Rules 1954 prescribe the procedure of, and before, the Summary Court- Martial. The Act and A the Rules constitute a self contained Code, specifying offences and the procedure for detention, custody and trial of the offenders by the Courts-Martial. The procedural safe-guards contemplated in the Act must be considered in the context of and corresponding to the plenitude of the Summary jurisdiction of the Court-Martial and the severity of the consequences that visit the person subject to that jurisdiction. The procedural safe-guards should be commensurate with the sweep of the powers. The wider the power, the greater the need for the restraint in its exercise and correspondingly, more liberal the construction of the procedural safeguards envisaged by the Statute. The oft-quoted words of Frankfurter, J. in Vitarelli v. Seaton, 359 U.S.535 are again worth re-calling; \"... if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed .............................................. This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with that sword. E \"The history of liberty\" said the same learned Judge \"has largely been the history of observance of procedural safeguards.\" (318 US 332). We are afraid, the non-compliance of the mandate of section 130 is an infirmity which goes to the root of the jurisdiction and without more, vitiates the proceedings. lndeed it has been so held by this Court in Prithvi Pal Singh v. Union of India, AIR 1982 SC 1413 where Desai, J referring to the purpose of section 130 observed: \"...... .Whenever an objection is taken it has to be recorded. In order to ensure that anyone objected to does not participate in disposing of the objection ......... ........ This is a mandatory requirement because the officer objected to cannot participate in the decision disposing of the objection. H ....... The provision conferring a right on the accused to object to a member of the Court-Martial sitting as a member and participating in the trial ensures that a charge of bias can be made and investigated against individual members composing the Court-Martial. This is pre eminently a rational provision which goes a long way to ensure a fair trial.\" What emerges, therefore, is that in the present case there is a non-compliance with the mandate of section 130 with the attendant consequence that the proceedings of the Summary Court-Martial are rendered infirm in law. This disposes of the first limb of the contention (a). 6. The second limb of the contention is as to the effect of the alleged bias on the part of respondent 4. The test of real likelihood of bias is whether a reasonable person, in possession of relevant information, would have thought that bias was likely and is whether respondent 4 was likely to be disposed to decide the matter only in a particular way. It is the essence of a judgment that it is made after due observance of the judicial process; that the Court or Tribunal passing it observes, at least the minimal requirements of natural justice, is composed of impartial persons acting fairly and without bias and in good faith. A judgment which is the result of bias or want of impartiality is a nullity and the trial \"coram non-judice\". (See Vassiliadas v. Vassiliades-AIR 1945 PC 38). 7. As to the tests of the likelihood of bias what is relevant is the reasonableness of the apprehension in that regard in the mind of the party. The proper approach for the judge is not to look at his own mind and ask himself, however, honestly. \"Am I biased? \"but to look at the mind of the party before him. Lord Esher in Allinson v. General Council of Medical Education and Registration, l 1894] 1 Q.B. 750 at 758 said: \"The question is not, whether in fact he was or was not biased. The Court cannot inquire into that .......... ............. In the administration of justice, whether by a recognised legal court or by persons who, although not a legal public court, are acting in a similar capacity, public policy requires that, in order that there should be no doubt about the purity of the administration any person who is to A take part in it should not be in such a position that he might be suspected of being biased.\" In Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon, [1969] 1 Q.B. 577, at 599, Lord Denning M.R. Observed: B \". .. in considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be never- theless if right minded persons would think that in the circumstances there was a real likelihood of bias on his part, then he should not sit ....... \". D Frankfurter J in Public Utilities Commission of the District of Columbia v. Pollack (343 US 451 at 466) said: \"The judicial process demands that a judge move within the frame work of relevant legal rules and the court covenanted modes of thought for ascertaining them. He must think dispassionately and submerge private feeling on every aspect of a case. There is a good deal of shallow talk that the judicial robe does not change the man within it. It does. The fact is that on the whole judges do lay aside private views in discharging their judicial functions. This is achieved through training, professional habits, self-discipline and that fortunate alchemy by which men are loyal to the obligation with which they are interested. But it is also true that reason cannot control the subconscious influence of feelings of which it is unaware. When there is ground for believing that such unconscious feelings may operate in the ultimate judgment or may not unfairly lead others to believe they are operating, judges refuse themselves. They do not sit in judgment .. \". Referring to the proper test, Ackner LJ in Regina v. Liverpool City Justices, Ex-parte Topping [1983] I WLR 119 said: H \"Assuming therefore, that the justices had applied the test advised by Mr. Pearson-Do I feel prejudiced? then they would have applied the wrong test, exercised their discretion on the wrong principle and the same result, namely, the quashing of the conviction would follow.\" Thus tested the conclusion becomes inescapable that, having regard to the antecedent events, the participation of Respondent 4 in the Courts-Martial rendered the proceedings coram non-judice. 7. Re: contention (b): The mere circumstance that the appellant was, at the relevant point of time, serving a sentence of imprisonment and could not therefore, be said to be in 'active service' does not detract from the fact that he was still \"a person subject to this Act.\" This is clear from the second clause of Section 41(2) which refers to offences committed when not in 'active service'. The difference is in the lesser punishment contemplated. We are, therefore, unable to appreciate the appositeness of this contention of Shri Sinha. 8. Re: contention (c): The submission that a disregard of an order to eat food does not by itself amount to a disobedience to a lawful command for purposes of section 41 has to be examined in the context of the imperatives of the high and rigorous discipline to be maintained in the Armed Forces. Every aspect of life of a soldier is regulated by discipline. Rejection of food might, under circumstances, amount to an indirect expression of remonstrance and resentment against the higher authority. To say that, a mere refusal to eat food is an innocent, neutral act might be an over-simplification of the matter. Mere in-action need not always necessarily be neutral. Serious acts of calumny could be done in silence. A disregard of a direction to accept food might assume the complexion of disrespect to, and even defiance of authority. But an unduly harsh and cruel reaction to the expression of the injured feelings may be counter-productive and even by itself be subversive of discipline. Appellant was perhaps expressing his anguish at, what he considered, an unjust and disproportionate punishment for airing his grievances before his superior officers. However, it is not necessary in this case to decide contention (c) in view of our finding on the other contentions. 9. Re: contention (d): Judicial review generally speaking, is not directed against a decision, but is directed against the \"decision making process\". The question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court-Martial. But the sentence has to suit the offence and the offender. It should not be A vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the Court- Martial, if the decision of the Court even as to sentence is an outrageous defiance of B logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review. In Council of Civil Service Unions v. Minister for the Civil Service, [1984] 3 Weekly Law Reports 1174 (HL) Lord Deplock said: \"... Judicial Review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground l would call 'illegality'. the second irrationality' and the third 'procedural impropriety'. That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of 'proportionality' which is recognised in the administrative law of several of our fellow members of the European Economic Community ............................ E In BhagatRam v. State of Himachal Pradesh, A.I.R. 1983 SC 454 this Court held: \"It is equally true that the penalty imposed must be commensurate with the gravity of the misconduct and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution. The point to note, and emphasise is that all powers have legal limits. In the present case the punishment is so strikingly disproportionate as to call for and justify interference. It cannot be allowed to remain uncorrected in judicial review. 10. In the result, for the foregoing reasons, the appeal is allowed, the order of the High Court set aside, the writ petition preferred in the High Court allowed and the impugned proceedings of the Summary Court-Martial dated March 30, 1985, and the consequent order and sentence are quashed. The appellant is entitled to and shall be reinstated with all monetary and service benefits. There will, however, be no order as to costs. N.P.V. Appeal allowed.",
        "115833707": "IN THE SUPREME COURT OF INDIA INHERENT JURISDICTION REVIEW PETITION (CIVIL) NO.\u2026\u2026\u2026\u2026\u2026/2021 (Diary No. 45777/2018) IN WRIT PETITION (CIVIL) NO. 494 OF 2012 Beghar Foundation through its Secretary and Anr. Petitioner(s) versus Justice K.S. Puttaswamy (Retd.) and Ors. Respondent(s) with REVIEW PETITION (CIVIL) NO. 3948 OF 2018 IN WRIT PETITION (CIVIL) NO. 231 OF 2016 Jairam Ramesh Petitioner(s) versus Union of India and Ors. Respondent(s) with REVIEW PETITION (CIVIL) NO. 22 OF 2019 IN Signature Not Verified Digitally signed by DEEPAK SINGH Date: 2021.01.20 11:30:21 IST Reason: WRIT PETITION (CIVIL) NO. 1014 OF 2017 1 \fM.G. Devasahayam Petitioner(s) versus Union of India and Anr. Respondent(s) with REVIEW PETITION (CIVIL) NO. 31 OF 2019 IN WRIT PETITION (CIVIL) NO. 1058 OF 2017 Mathew Thomas Petitioner(s) versus Union of India and Ors. Respondent(s) with REVIEW PETITION (CIVIL) NO.\u2026\u2026\u2026\u2026\u2026/2021 (Diary No. 48326/2018) IN WRIT PETITION (CIVIL) NO. 494 OF 2012 Imtiyaz Ali Palsaniya Petitioner(s) versus Union of India and Ors. Respondent(s) with REVIEW PETITION (CIVIL) NO. 377 OF 2019 IN WRIT PETITION (CIVIL) NO. 342 OF 2017 2 \fShantha Sinha and Anr. Petitioner(s) versus Union of India and Anr. Respondent(s) with REVIEW PETITION (CIVIL) NO. 924 OF 2019 IN WRIT PETITION (CIVIL) NO. 829 OF 2013 S.G. Vombatkere and Anr. Petitioner(s) versus Union of India and Ors. Respondent(s) ORDER Permission to file Review Petition(s) is granted. Delay condoned. Prayer for open Court/personal hearing of Review Petition(s) is rejected. The present review petitions have been filed against the final judgment and order dated 26.09.2018. We have perused the review petitions as well as the grounds in support thereof. In our opinion, no case for review of judgment and order dated 26.09.2018 is made out. We hasten to add that change in the law or subsequent decision/judgment of a coordinate or larger Bench by itself cannot be regarded as a ground for review. The review petitions are accordingly dismissed. Consequently, prayer for urging additional grounds in Review Petition (Civil) No. 22/2019 stands rejected. \u2026\u2026\u2026\u2026.\u2026...................J. (A.M. Khanwilkar) \u2026\u2026\u2026\u2026.\u2026...................J. (Ashok Bhushan) \u2026\u2026\u2026\u2026.\u2026...................J. (S. Abdul Nazeer) \u2026\u2026\u2026\u2026.\u2026...................J. (B. R. Gavai) New Delhi; January 11, 2021. Reportable IN THE SUPREME COURT OF INDIA CIVIL INHERENT/ APPELLATE JURISDICTION Review Petition (Civil) Diary No. 45777 of 2018 Beghar Foundation & Anr. .... Petitioners Versus Justice K.S. Puttaswamy (Retd.) & Ors. .... Respondents With Review Petition (Civil) No. 3948 of 2018 in Writ Petition (Civil) No. 231 of 2016 With Review Petition (Civil) No. 22 of 2019 in Writ Petition (Civil) No. 1014 of 2017 With Review Petition (Civil) No. 31 of 2019 in Writ Petition (Civil) No. 1058 of 2017 With Diary No. 48326 of 2018 With Review Petition (Civil) No. 377 of 2019 in Writ Petition (Civil) No. 342 of 2017 And With Review Petition (Civil) No. 924 of 2019 in Writ Petition (Civil) No. 829 of 2013 JUDGMENT Dr Dhananjaya Y Chandrachud, J 1 I regret my inability to agree with the decision of the majority in dismissing the present batch of review petitions. 2 This batch of petitions seeks a review of the decision of a Constitution Bench of this Court in Puttaswamy (Aadhaar-5J.) v Union of India1 [\u201cPuttaswamy (Aadhar-5J.\u201d]. Among the issues which arose for decision, the Court had to answer two critical questions: (i) whether the decision of the Speaker of the House of People2 under Article 110(3) of the Constitution, to certify a bill as a \u2018Money Bill\u2019 under Article 110(1) is final and binding, or can be subject to judicial review; and (ii) if the decision is subject to judicial review, whether the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (the \u201cAadhaar Act\u201d) had been correctly certified as a \u2018Money Bill\u2019 under Article 110(1) of the Constitution. 3 On the first question, the majority (speaking through Dr Justice A.K. Sikri) stated that \u201c[j]udicial review [of whether a Bill is a \u2018Money Bill\u2019] would be admissible under certain circumstances having regard to the law laid down by this Court\u201d3. While answering the second question, the majority held that Section 7 of the Aadhaar Act had elements of a \u2018Money Bill\u2019, and the other provisions were incidental to the \u2018core\u2019 of the Aadhaar Act. Hence, the majority held that the Aadhaar Act had been correctly certified as a \u2018Money Bill\u2019 under Article 110(1). 1 (2019) 1 SCC 1 2 \u2018House of People\u2019 interchangeably referred as \u2018Lok Sabha\u2019 3 Id at paras 455-464 4 In his concurring opinion, Justice Ashok Bhushan answered the first question by holding that the decision of the Speaker of the House of People under Article 110(1) could be subject to judicial review when it was in breach of a constitutional provision. Drawing a distinction between an irregularity of procedure and a substantive illegality, Justice Ashok Bhushan held: \u201c901. There is a clear difference between the subject \u201cirregularity of procedure\u201d and \u201csubstantive illegality\u201d. When a Bill does not fulfil the essential constitutional condition under Article 110(1), the said requirement cannot be said to be evaporated only on certification by Speaker. Accepting the submission that certification immunes the challenge on the ground of not fulfilling the constitutional condition, the Court will be permitting constitutional provisions to be ignored and bypassed. We, thus, are of the view that decision of the Speaker certifying the Bill as Money Bill is not only a matter of procedure and in the event, any illegality has occurred in the decision and the decision is clearly in breach of the constitutional provisions, the decision is subject to judicial review.\u201d However, in answering the second question, Justice Bhushan\u2019s concurring opinion agreed with the majority and held that the Aadhaar Act had been correctly certified by the Speaker of the House of People as a \u2018Money Bill\u2019 under Article 110(1). 5 The opinion authored by me, answered the first question by holding that: \u201c1080. The obligation placed on the Speaker of the Lok Sabha to certify whether a Bill is a Money Bill is not a mere matter of \u201cprocedure\u201d contemplated under Article 122. It is a constitutional requirement, which has to be fulfilled according to the norms set out in Article 110. Article 122 will not save the action of the Speaker, if it is contrary to constitutional norms provided under Article 110. The Court, in the exercise of its power of judicial review, can adjudicate upon the validity of the action of the Speaker if it causes constitutional infirmities. Article 122 does not envisage exemption from judicial review, if there has been a constitutional infirmity. The Constitution does not endorse a complete prohibition of judicial review under Article 122. It is only limited to an \u201cirregularity of procedure\u201d.\u201d However, on the second question, my decision dissented with the majority and Justice Ashok Bhushan, and held that the decision of the Speaker of the House of People to certify the Aadhaar Act as a \u2018Money Bill\u2019 under Article 110(1) was unconstitutional. 6 The issue whether judicial review can be exercised over a decision of the Speaker of the House of People under Article 110(3), arose subsequently before another Constitution Bench in Rojer Mathew v South Indian Bank Ltd4 (\u201cRojer Mathew\u201d) This was in the context of whether some of the provisions of the Finance Act, 2017 (relating to appointments to Tribunals and the conditions of service of members) could have been certified as a \u2018Money Bill\u2019 under Article 110. 7 The judgment delivered by the majority (speaking through Chief Justice Ranjan Gogoi) answered this question by referring to the judgment in Puttaswamy (Aadhaar-5J.) in the following terms: \u201c102. A coordinate Bench of this Court in K.S. Puttaswamy (Aadhaar-5 J.) v. Union of India [K.S. Puttaswamy (Aadhaar-5 J.) v. Union of India, (2019) 1 SCC 1] , was tasked with a similar question of the certification of \u201cMoney Bill\u201d accorded to the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 by the Speaker of Lok Sabha. The majority opinion after noting the important role of the Rajya Sabha in a bicameral legislative set-up, observed that Article 110 being an exceptional provision, must be interpreted narrowly. Although the majority opinion did not examine the correctness of the decisions in Mohd. Siddiqui [Mohd. Saeed Siddiqui v. State of U.P., (2014) 11 SCC 415] and Yogendra Kumar Jaiswal [Yogendra Kumar Jaiswal v. State of Bihar, (2016) 3 SCC 183 : (2016) 2 SCC (Cri) 1] or conclusively pronounce on the scope of jurisdiction or power 4 (2020) 6 SCC 1 of this Court to judicially review certification by the Speaker under Article 110(3), yet, it independently reached a conclusion that the impugned enactment fell within the four corners of Article 110(1) and hence was a \u201cMoney Bill\u201d. The minority view rendered, however, explicitly overruled both Mohd. Siddiqui [Mohd. Saeed Siddiqui v. State of U.P., (2014) 11 SCC 415] and Yogendra Kumar Jaiswal [Yogendra Kumar Jaiswal v. State of Bihar, (2016) 3 SCC 183 : (2016) 2 SCC (Cri) 1] . 103. The majority opinion in Puttaswamy [K.S. Puttaswamy (Aadhaar-5 J.) v. Union of India, (2019) 1 SCC 1] by examining whether or not the impugned enactment was in fact a \u201cMoney Bill\u201d under Article 110 without explicitly dealing with whether or not certification of the Speaker is subject to judicial review, has kept intact the power of judicial review under Article 110(3). It was further held therein that the expression \u201cMoney Bill\u201d cannot be construed in a restrictive sense and that the wisdom of the Speaker of Lok Sabha in this regard must be valued, save where it is blatantly violative of the scheme of the Constitution. We respectfully endorse the view in Puttaswamy [K.S. Puttaswamy (Aadhaar-5 J.) v. Union of India, (2019) 1 SCC 1] and are in no doubt that Mohd. Siddiqui [Mohd. Saeed Siddiqui v. State of U.P., (2014) 11 SCC 415] and Yogendra Kumar Jaiswal [Yogendra Kumar Jaiswal v. State of Bihar, (2016) 3 SCC 183 : (2016) 2 SCC (Cri) 1] insofar as they put decisions of the Speaker under Article 110(3) beyond judicial review, cannot be relied upon.\u201d (emphasis supplied) However, the majority opinion noted that the first question was not adequately answered in the above decision in Puttaswamy (Aadhaar-5J.). It also noted its doubts on the determination of the second question: \u201c116. Upon an extensive examination of the matter, we notice that the majority in K.S. Puttaswamy (Aadhaar-5 J.) [K.S. Puttaswamy (Aadhaar-5 J.) v. Union of India, (2019) 1 SCC 1] pronounced the nature of the impugned enactment without first delineating the scope of Article 110(1) and principles for interpretation or the repercussions of such process. It is clear to us that the majority dictum in K.S. Puttaswamy (Aadhaar-5 J.) [K.S. Puttaswamy (Aadhaar-5 J.) v. Union of India, (2019) 1 SCC 1] did not substantially discuss the effect of the word \u201conly\u201d in Article 110(1) and offers little guidance on the repercussions of a finding when some of the provisions of an enactment passed as a \u201cMoney Bill\u201d do not conform to Articles 110(1)(a) to (g). Its interpretation of the provisions of the Aadhaar Act was arguably liberal and the Court's satisfaction of the said provisions being incidental to Articles 110(1)(a) to (f), it has been argued, is not convincingly reasoned, as might not be in accord with the bicameral parliamentary system envisaged under our constitutional scheme. Without expressing a firm and final opinion, it has to be observed that the analysis in K.S. Puttaswamy (Aadhaar-5 J.) [K.S. Puttaswamy (Aadhaar-5 J.) v. Union of India, (2019) 1 SCC 1] makes its application difficult to the present case and raises a potential conflict between the judgments of coordinate Benches. 117. Given the various challenges made to the scope of judicial review and interpretative principles (or lack thereof), as adumbrated by the majority in K.S. Puttaswamy (Aadhaar- 5 J.) [K.S. Puttaswamy (Aadhaar-5 J.) v. Union of India, (2019) 1 SCC 1] and the substantial precedential impact of its analysis of the Aadhaar Act, 2016, it becomes essential to determine its correctness. Being a Bench of equal strength as that in K.S. Puttaswamy (Aadhaar-5 J.) [K.S. Puttaswamy (Aadhaar-5 J.) v. Union of India, (2019) 1 SCC 1] , we accordingly direct that this batch of matters be placed before the Hon'ble the Chief Justice of India, on the administrative side, for consideration by a larger Bench.\u201d (emphasis supplied) As a consequence, the majority opinion held that \u201c[t]he issue and question of Money Bill, as defined under Article 110(1) of the Constitution, and certification accorded by the Speaker of the Lok Sabha in respect of Part-XIV of the Finance Act, 2017 is referred to a larger Bench\u201d5. 8 In his partly concurring and partly dissenting opinion, Justice Deepak Gupta agreed with the majority opinion in referring the first question of \u2018Money Bill\u2019 to a larger bench thus: 5 Supra at note 3, at para 223.1 \u201c365. I am in total agreement with the Chief Justice inasmuch as he has held that the decision of the Hon'ble Speaker of the House of People under Article 110(3) of the Constitution is not beyond judicial review. I also agree with his views that keeping in view the high office of the Speaker, the scope of judicial review in such matters is extremely restricted. If two views are possible then there can be no manner of doubt that the view of the Speaker must prevail. Keeping in view the lack of clarity as to what constitutes a Money Bill, I agree with the Hon'ble Chief Justice that the issue as to whether Part XIV of the Finance Act, 2017, is a Money Bill or not may be referred to a larger Bench.\u201d Similarly, another partly concurring and partly dissenting opinion, authored by me, held thus: \u201c346. Though the present judgment [referring to the partly concurring and partly dissenting opinion] analyses the ambit of the word \u201conly\u201d in Article 110(1) and the interpretation of sub-clauses (a) to (g) of clause (1) of Article 110 and concludes that Part XIV of the Finance Act, 2017 could not have been validly enacted as a Money Bill, I am in agreement with the reasons which have been set out by the learned Chief Justice of India to refer the aspect of Money Bill to a larger Bench and direct accordingly.\u201d 9 Consequently, the correctness of the judgment in Puttaswamy (Aadhaar- 5J.), in relation to what constitutes a \u2018Money Bill\u2019 under Article 110 of the Constitution, the extent of judicial review over a certification by the Speaker of the House of People and the interpretation which has been placed on the provisions of the Aadhaar Act while holding the enactment to be a \u2018Money Bill\u2019, are issues which will be resolved by a larger bench, which is yet to be constituted. 10 The present batch of review petitions, in challenging the correctness of the judgment in Puttaswamy (Aadhaar-5J.), assails the reasoning in the opinion of the majority on whether the Aadhaar Act was a \u2018Money Bill\u2019 under Article 110. The details of the review petitions, are summarised below: (i) Review Petition (Civil) Diary No. 45777 of 2018 \u2013 This petition was filed on 6 December 2018, and its sub-Ground (e) calls for a review of Puttaswamy (Aadhaar-5J.) in which the majority opinion upheld the certification of the Aadhaar Act as a \u2018Money Bill\u2019, which rests on the erroneous assumption that Section 7 of the Aadhaar Act is its core provision (Grounds XXIII-XXVII). (ii) Review Petition (Civil) No. 3948 of 2018 \u2013 This petition was filed on 23 October 2018, and seeks a review of Puttaswamy (Aadhaar-5J.) in relation to the majority opinion upholding the certification of the Aadhaar Act as a \u2018Money Bill\u2019 within the meaning of Article 110 (Grounds I-VII). (iii) Review Petition (Civil) No. 22 of 2019 \u2013 This petition was filed on 15 December 2018, and seeks a review of Puttaswamy (Aadhaar-5J.) in relation to the majority opinion upholding the certification of the Aadhaar Act as a \u2018Money Bill\u2019, and its consequence on the constitutionality of the enactment (Grounds I-VI). (iv) Review Petition (Civil) No. 31 of 2019 \u2013 This petition was filed on 21 December 2018, and seeks a review of Puttaswamy (Aadhaar-5J.) in relation to the majority opinion holding that the Aadhaar Act was correctly certified as a \u2018Money Bill\u2019 by the Speaker of the House of People by merely relying on Section 7 of the Aadhaar Act (Grounds GG-II). (v) Diary No. 48326 of 2018 \u2013 This petition was filed on 24 December 2018, and seeks a review of Puttaswamy (Aadhaar-5J.) in relation to the majority opinion upholding the Aadhaar Act\u2019s certification as a \u2018Money Bill\u2019, which eliminated the possibility of discussion before the Rajya Sabha (Grounds V-W). (vi) Review Petition (Civil) No. 377 of 2019 \u2013 This petition was filed on 10 January 2019, and seeks a review of Puttaswamy (Aadhaar-5J.) in relation to the majority opinion holding that the Aadhaar Act could have been certified as a \u2018Money Bill\u2019 at the time of its introduction in the Lok Sabha (Ground A). (vii) Review Petition (Civil) No. 924 of 2019 \u2013 This petition was filed on 12 January 2019, and seeks a review of Puttaswamy (Aadhaar-5J.) in relation to the majority opinion upholding the Aadhaar Act\u2019s certification as a \u2018Money Bill\u2019 in terms of Article 110(1) even though it contained provisions which affected the fundamental rights under Part III of the Constitution (Ground A). 11 The analysis of the majority opinion in Puttaswamy (Aadhaar-5J.) in relation to the second question, i.e., whether the Aadhaar Act was a \u2018Money Bill\u2019 under Article 110 has been doubted by a coordinate bench in Rojer Mathew, when the first question was referred to a larger bench. The larger bench has not been constituted, and is yet to make a determination. Dismissing the present batch of review petitions at this stage \u2013 a course of action adopted by the majority \u2013 would place a seal of finality on the issues in the present case, without the Court having the benefit of the larger bench\u2019s consideration of the very issues which arise before us. The correctness of Puttaswamy (Aadhaar-5J.) on issues pertaining to, and arising from, the certification of a Bill as a \u2018Money Bill\u2019 by the Speaker of the House of People has been doubted by a co-ordinate Constitution Bench in Rojer Mathew. With the doubt expressed by another Constitution Bench on the correctness of the very decision which is the subject matter of these review petitions, it is a constitutional error to hold at this stage that no ground exists to review the judgment. The larger bench\u2019s determination would have an undeniable impact on the validity of the reasons expressed in Puttaswamy (Aadhaar-5J.), on the constitutional issues pertaining to and arising out of the certification by the Speaker of the House of People. The failure to re- contextualize the decision of the larger bench with regard to the Aadhaar Act being a \u2018Money Bill\u2019 under Article 110(1) will render it a mere academic exercise. 12 It is important to draw a distinction with a situation where a judgment attains finality and the view propounded by it is disapproved by a larger bench subsequently. In the present case, the above-mentioned review petitions had all been filed before the judgment in Rojer Mathew was delivered on 13 November 2019. The review petitions were pending on the date when a reference was made to a larger bench in Rojer Mathew. These review petitions were previously listed before a five-judge bench headed by Justice Arun Mishra on 25 August 2020, and were not disposed of. Hence, these review petitions have continued to remain pending until now, and there is a strong reason for us not to dismiss them pending the decision of the larger bench, especially in light of the adverse consequences highlighted above. 13 In Kantaru Rajeevaru (Right to Religion, In re-9 J.) (2) v Indian Young Lawyers Assn.6, a nine-judge bench of this Court had to determine whether a reference could be made to a larger bench in a pending review petition. Answering this in the affirmative, the Court held that it need not admit the review petitions before referring the question to a larger bench. Further, the court noted that such a question could also be a pure question of law. In explaining the power of this Court to review its own judgments, Chief Justice S A Bobde, speaking for the Bench, held thus: \u201c29. Order LV Rule 6 makes it crystal clear that the inherent power of this Court to make such orders as may be necessary for the ends of justice shall not be limited by the Rules. In S. Nagaraj v. State of Karnataka [S. Nagaraj v. State of Karnataka, 1993 Supp (4) SCC 595 : 1994 SCC (L&S) 320] , it was observed that even when there was no statutory provision and no rules were framed by the highest court indicating the circumstances in which it could rectify its orders, the courts culled out such power to avoid abuse of process or miscarriage of justice. It was further held that this Court is not precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for the sake of justice. The logical extension to the above is that reference of questions of law can be made in any pending proceeding before this Court, including the instant review proceedings, to meet the ends of justice.\u201d 14 If these review petitions are to be dismissed and the larger bench reference in Rojer Mathew were to disagree with the analysis of the majority opinion in Puttaswamy (Aadhaar-5J.), it would have serious consequences \u2013 not just for judicial discipline, but also for the ends of justice. As such, the present batch of review petitions should be kept pending until the larger bench decides the questions referred to it in Rojer Mathew. In all humility, I conclude that the 6 (2020) 9 SCC 121 constitutional principles of consistency and the rule of law would require that a decision on the Review Petitions should await the reference to the Larger Bench. \u2026\u2026.\u2026\u2026\u2026\u2026.\u2026\u2026\u2026\u2026\u2026\u2026\u2026...........................J. [Dr Dhananjaya Y Chandrachud] New Delhi; January 11, 2021. ITEM NO.1001 SECTION PIL-W S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS REVIEW PETITION (CIVIL) Diary No(s). 45777/2018 (Arising out of impugned final judgment and order dated 26-09-2018 in W.P.(C) No. No. 494/2012 passed by the Supreme Court Of India) BEGHAR FOUNDATION & ANR. Petitioner(s) VERSUS JUSTICE K.S.PUTTASWAMY(RETD) & ORS. Respondent(s) IA No. 11039/2019 - APPLICATION FOR PERMISSION TO FILE REVIEW PETITION IA No. 177563/2018 - CONDONATION OF DELAY IN FILING REVIEW PETITION IA No. 177567/2018 - EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT) WITH R.P.(C) No. 3948/2018 in W.P.(C) No. 231/2016 (PIL-W) (FOR FOR ORAL HEARING [permission to to be heard R.P. in open court] ON IA 182747/2018 IA No. 182747/2018 - ORAL HEARING) R.P.(C) No. 22/2019 in W.P.(C) No. 1014/2017 (PIL-W) (IA FOR EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT ON IA 182749/2018 FOR APPLICATION FOR LISTING REVIEW PETITION IN OPEN COURT ON IA 182750/2018 FOR CONDONATION OF DELAY IN FILING REVIEW PETITION ON IA 182751/2018 FOR PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES ON IA 182753/2018 IA No. 182750/2018 - APPLICATION FOR LISTING REVIEW PETITION IN OPEN COURT IA No. 182751/2018 - CONDONATION OF DELAY IN FILING REVIEW PETITION IA No. 182749/2018 - EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT IA No. 182753/2018 - PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES) R.P.(C) No. 31/2019 in W.P.(C) No. 1058/2017 (PIL-W) (FOR FOR ORAL HEARING ON IA 185123/2018 FOR CONDONATION OF DELAY IN FILING REVIEW PETITION ON IA 185125/2018 IA No. 185125/2018 - CONDONATION OF DELAY IN FILING REVIEW PETITION IA No. 185123/2018 - ORAL HEARING) Diary No(s). 48326/2018 (PIL-W) ( FOR APPLICATION FOR PERMISSION TO FILE REVIEW PETITION ON IA 186187/2018 FOR CONDONATION OF DELAY IN FILING ON IA 186188/2018 FOR APPLICATION FOR LISTING REVIEW PETITION IN OPEN COURT ON IA 186190/2018 IA No. 186190/2018 - APPLICATION FOR LISTING REVIEW PETITION IN OPEN COURT IA No. 186187/2018 - APPLICATION FOR PERMISSION TO FILE REVIEW PETITION IA No. 186188/2018 - CONDONATION OF DELAY IN FILING) R.P.(C) No. 377/2019 in W.P.(C) No. 342/2017 (PIL-W) (IA FOR PERSONAL HEARING BEFORE THE COURT ON IA 6225/2019 FOR EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT ON IA 6231/2019 IA No. 6231/2019 - EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT IA No. 6225/2019 - PERSONAL HEARING BEFORE THE COURT) R.P.(C) No. 924/2019 in W.P.(C) No. 829/2013 (PIL-W) (FOR FOR CONDONATION OF DELAY IN FILING REVIEW PETITION ON IA 7279/2019 FOR APPROPRIATE ORDERS/DIRECTIONS ON IA 7281/2019 IA No. 7281/2019 - APPROPRIATE ORDERS/DIRECTIONS IA No. 7279/2019 - CONDONATION OF DELAY IN FILING REVIEW PETITION) Date : 11-01-2021 These matters were called on for hearing today. CORAM : HON'BLE MR. JUSTICE A.M. KHANWILKAR HON'BLE DR. JUSTICE D.Y. CHANDRACHUD HON'BLE MR. JUSTICE ASHOK BHUSHAN HON'BLE MR. JUSTICE S. ABDUL NAZEER HON'BLE MR. JUSTICE B.R. GAVAI By Circulation UPON perusing papers the Court made the following O R D E R Hon\u2019ble Mr. Justice A.M. Khanwilkar (on behalf of himself, Hon\u2019ble Mr. Justice Ashok Bhushan, Hon\u2019ble Mr. Justice S. Abdul Nazeer and Hon\u2019ble Mr. Justice B.R. Gavai) passed the order of the Bench comprising His Lordship, Hon\u2019ble Dr. Justice Dhananjaya Y. Chandrachud, Hon\u2019ble Mr. Justice Ashok Bhushan, Hon\u2019ble Mr. Justice S. Abdul Nazeer and Hon\u2019ble Mr. Justice B.R. Gavai. The operative portion of the order is as under: \u201cThe present review petitions have been filed against the final judgment and order dated 26.09.2018. We have perused the review petitions as well as the grounds in support thereof. In our opinion, no case for review of judgment and order dated 26.09.2018 is made out. We hasten to add that change in the law or subsequent decision/judgment of a coordinate or larger Bench by itself cannot be regarded as a ground for review. The review petitions are accordingly dismissed. Consequently, prayer for urging additional grounds in Review Petition (Civil) No. 22/2019 stands rejected.\u201d Hon\u2019ble Dr. Justice Dhananjaya Y. Chandrachud passed a separate dissenting judgment. The operative portion of the judgment is as under: \u201c14. If these review petitions are to be dismissed and the larger bench reference in Rojer Mathew were to disagree with the analysis of the majority opinion in Puttaswamy (Aadhaar- 5J), it would have serious consequences \u2013 not just for judicial discipline, but also for the ends of justice. As such, the present batch of review petitions should be kept pending until the larger bench decides the questions referred to it in Rojer Mathew. In all humility, I conclude that the constitutional principles of consistency and the rule of law would require that a decision on the Review Petitions should await the reference to the Larger Bench.\u201d Pending applications, if any, stand disposed of. (DEEPAK SINGH) (VIDYA NEGI) COURT MASTER (SH) COURT MASTER (NSH) [Signed order and reportable judgment are placed on the file]",
        "14063857": "HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 71 Case :- WRIT - A No. - 7175 of 2020 Petitioner :- Hriday Narayan Singh Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Rajendra Rai Counsel for Respondent :- C.S.C. Hon'ble Mahesh Chandra Tripathi,J. Heard Shri Rajendra Rai, learned counsel for the petitioner and Shri Devesh Vikram, learned Standing Counsel for State respondents. The petitioner is before this Court with request to issue direction commanding the respondent no.3, Deputy Director of Education (Secondary), Vth Region, Varanasi to sanction the post retiral benefits i.e. gratuity and pension from 1.4.2018 with interest within stipulated time alongwith interest. At the very outset, learned counsel for the petitioner apprises to the Court that the controversy in hand is squarely covered by the judgment of this Court dated 7.3.2018 passed in Writ A No.5737 of 2018 (Ishrat Jahan vs. State of UP and 3 others) and as such, similar indulgence may also be accorded in this writ petition also. For ready reference, the operative portion of the judgment dated 7.3.2018 is quoted as under:- \"9. The appointment of the petitioner was made on ad hoc basis. The institution where the petitioner was appointed as ad hoc teacher is governed by the U.P. Intermediate Education Act, 1921 (in short Act,1921) and Act No. 5 of 1982. In the Act, 1921 the word 'ad hoc' or 'temporary' is not defined. Section 16-E deals with the appointment of teachers in Intermediate Colleges; under Section 16E (11) the temporary appointment were permissible only against a temporary vacancy caused by grant of leave to a incumbent for a period not exceeding six months. Chapter II of the Regulations framed under the Act, 1921 deals with the appointment of Heads of the institution and teachers. Proviso to Regulation-2 sub-clause (1) also permit to make appointment against a temporary vacancy caused by grant of leave for a period not exceeding six months or by death, retirement or by suspension. 10. The State Government amended U.P. Intermediate Education Act, 1921 drastically by U.P. Secondary Education Laws (Amendment) Act, 1975 (U.P. Act No. 26 of 1975). The same difficulties arose due to said amendment and as such, the State Government vide Notification dated 18th August, 1975 issued U.P. Secondary Education (Removal of Difficulties) Order, 1975 in respect of substantive or leave vacancy or any vacancy existing or occurring during the academic session of the head of the institution of teachers. For the first time, the management was empowered to make ad hoc appointment in the manner provided under the said order. The State Government in order to overcome further difficulties which arose, issued Removal of Difficulties Second, Third, Fourth, Fifth, Sixth and Seventh orders between the years 1975 -1977. There is no need to go into details of those orders as it is not relevant for the issue involved in the present case. Suffice would be to say, that for the first time, the concept of ad-hoc appointment was introduced under the U.P. Intermediate Education Act,1921. 11. In the year 1981 the State Government established the U.P. Secondary Education Service Commission and Selection Board vide Ordinance No. 8 of 1981, which was promulgated on 10th July, 1981. The State Government in exercise of power under section 33 of the said ordinance issued Removal of Difficulties Order, 1981 on 31 July, 1981, which was followed by (Removal of Difficulties) (Second) Order, 1982 on 11th September, 1981. Both these orders were issued laying procedure for appointment on ad-hoc basis against the substantive vacancy and short term vacancies. 12. After the enforcement of the U.P. Secondary Education Services Selection Board Act, 1982, the Committee of Management was empowered to make the ad-hoc appointment under Section 18 of the Act. The said section was amended by U.P. Act No. 1 of 1993 and U.P. Act No. 5 of 2001. From the aforesaid statutory provisions it is evident that the ad-hoc appointments were permissible by following statutory provisions which also requires approval of the District Inspector of Schools. The payment of salary of the ad-hoc teachers appointed under the aforementioned statutory provisions are made by the State Fund/Salary Payment Account. 13. Concededly, the petitioner was initially appointed as ad hoc teacher, her appointment was made against the short term vacancy. She worked for more than 25 years and reached her age of superannuation on 1.7.2017 (under sessions benefit upto 31.3.2018). 14. The Civil Service Regulation as applicable in Uttar Pradesh are intended to define the prerequisite conditions for grant of pension in the Government Service/Civil Department. The Article 361 of Chapter XVI of the Civil Service Regulations provides conditions of qualifications for pension. Article 361 reads as under :- \"The service of an officer does not qualify for pension unless it conforms to the following three conditions- a) the service must be under Government, b) the employment must be substantive and permanent and c) the service must be paid by Government.\" 15. Article 424 of Chapter XVIII of the Civil Service Regulations provides the following kinds of pension admissible to a Government servant (a) compensation pension (b) invalid pensions (c) superannuation pensions (d) retiring pensions. 16. The Civil Service Regulation as applicable in Uttar Pradesh is a preconstitutional Rules. The U.P.Fundamental Rules which has been made under section 241 (2) ( b) of the Government of India Act, 1935 came into force with effect from 1st April, 1942. Chapter 9 deals with the compulsory retirement. Fundamental Rule 56 (e) provides for retiring of a Government servant. Clause (e) of Fundamental Rule 56 reads as under: \"(e) A retiring pension shall be payable and other retirement benefits, if any, shall be available in accordance with and subject to the provisions of the relevant rules to every Government servant who retires or is required or allowed to retire under this rule: Provided that where a Government servant who voluntarily retires or is allowed voluntarily to retire under this rule the appointing authority may allow him, for the purposes of pension and gratuity, if any, the benefit of additional service of five years or of such period as he would have served if he had continued till the ordinary date of his superannuation, whichever be less.\" 17. The short question which need determination in this case is whether the petitioner who was appointed on adhoc basis and also superannuated in the same capacity without her regularisation can be held to work on a regular basis. The terms under \"ad hoc\" \"stopgap\" and \"fortuitous\" came to be considered by the Supreme Court in the case of Rudra Kumar Sain v. Union of India, (2000) 8 SCC 25. The Court found that a person, who has a requisite qualification and who is appointed with the approval of the appropriate authority and if he is allowed to continue on the post for a considerable long time then such appointment cannot be held to be stopgap/ fortuitous or purely adhoc appointment. The Supreme Court observed as under :- \"In service jurisprudence, a person who possesses the requisite qualification for being appointed to a particular post and then he is appointed with the approval and consultation of the appropriate authority and continues in the post for a fairly long period, then such an appointment cannot be held to be \"stopgap or fortuitous or purely ad hoc\". 18. The Supreme Court in the case of Ramesh K. Sharma v. Rajasthan Civil Services, (2001) 1 SCC 637, considered the word \"substantive basis\" following the judgment of Baleshwar Dass v. State of U.P. (AIR 1981 SC 41). The Supreme Court held that if an incumbent holds the post for indefinite period then it cannot be said to be adhoc appointment. The Court held as under :- \"If an incumbent is appointed after due process of selection either to a temporary post or a permanent post and such appointment, not being either stopgap or fortuitous, could be held to be on substantive basis. But if the post itself is created only for a limited period to meet a particular contingency, and appointment thereto is made not through any process of selection but on a stopgap basis then such an appointment cannot be held to be on substantive basis. The expression \"substantive basis\" is used in the service jurisprudence in contradistinction with ad hoc or purely stopgap or fortuitous.\" 19. This Court in the case of Dr. Hari Shanker Asopa v. State of U.P. And another, reported (1989) UPLBEC 501, considered the Article 361 and Clause (e) of Rule 56 of Fundamental Rules as applied in Uttar Pradesh and the Civil Service Regulations. Dr. Hari Shanker Asopa was appointed on temporary basis on the post of lecturer in the department of Surgery at S.N.Medical College, Agra on 4th August, 1964. In the year 1969, he was appointed on a substantive post of Reader in Surgery at same College that appointment too was on temporary basis. The term of the appointment was one year or till the candidate selected by the U.P.Public Service Commission was available, whichever was earlier. After three years, he was promoted to the post of Professor in Surgery in Jhansi Medical College. The said appointment was also temporary and it was for a period of one year or till the candidate regularly selected by the U.P.Public Service Commission was available or till the services of Dr. Asopa were needed, whichever was earlier. Dr. Asopa uninterruptedly continued for 18 years as a Lecturer, Reader and Professor on temporary basis. His request for voluntary retirement was allowed by the State Government in the year 1983 with a condition that no pension would be paid to him, as he was not permanent on any post of the Government Service. Dr. Asopa feeling aggrieved by the said order dated 21.2.1983 preferred a writ petition before this Court. 20. In the case of Hans Raj Pandey v. State of U.P. and others, 2007 (3) UPLBEC 2073 (supra) this Court had occasion to consider the provisions of U.P. State Aided Educational Institution Employees Provident Fund, Insurance and Pension Rules, 1964 also. Rule 43 ,44 and 45 of the said Rule has been considered at length by this Court and also the Regulations 465 and 465 A of the U.P.Civil Service Regulations. The Court held as under :- \"In the present case, so far as the condition Nos. A and C are concerned, they are satisfied and the dispute is only with respect to condition No. B i.e., lack of permanent character of service. However, in out view, the aforesaid provisions stand obliterated after the amendment of Fundamental Rule 56 by U.P.Act No. 24 of 1975 which allows retirement of a temporary employees also and provides in clause (e) that a retiring pension is payable and other retiral benefits, if any, shall be available to every Government Servant who retires or is required or allowed to retire under this Rule. Since the aforesaid amendment Rule 56 was made by an Act of Legislature, the provisions contained otherwise under Civil Service Regulations, which are pre-constitutional, would have to give way to the provisions of Fundamental Rule 56. In other words, the provisions of Fundamental Rule 56 shall prevail over the Civil Service Regulations, if they are inconsistent. Condition -B (supra) of Article 361 of Civil Service Regulations are clearly inconsistent with Fundamental Rule 56 and thus is in operative.\" 21. The principle, which can be discerned from the above mentioned judgment, is that if adhoc/stopgap/temporary employee having essential qualification and is appointed in terms of the statutory Rules and he continues for a long time and fulfils the qualifying service, is entitled for pension and other retiral benefits. 22. Having regard to the facts and circumstances of the case, I am of the view that petitioner is entitled for the post retiral benefits as her appointment was made in terms of the statutory Rules and the same was also approved by the District Inspector of Schools by an order dated 8.5.2013. Admittedly, on account of an interim order dated 20.1.2004 passed in Writ Petition No.38769 of 2000, the petitioner continued to work in the institution and finally retired on attaining the age of superannuation on 1.7.2017 (worked under the sessions benefit upto 31.3.2018) and she worked uninterruptedly for more than 25 long years. 23. A direction is issued to the respondents to pay the post retiral benefits to the petitioner in accordance with law as expeditiously as possible preferably within three months from the date of communication of this order. 24. Consequently, the writ petition is allowed. 25. It is made clear that the petitioner is not entitled for the arrears of salary for the period from 3.7.1992 to 7.5.2013. \" Similar controversy was also decided by this Court vide order dated 24.7.2018 passed in Writ A No.14970 of 2018 (Narsingh Rai vs. Deputy Director of Education, Varanasi and 3 others). Relevant paragraph of the said judgment is quoted below:- \"18- The respondents are State within the meaning of Article 12 of the Constitution of India. They are public functionary. As per Constitution, the sovereignty vests in people. Every government functionary including the public authorities are obliged to be people oriented. The public officers are public servants and they have been employed to serve people. They are accountable for their illegal acts and for violating the Constitutional and Statutory provisions. They cannot be a cause for harassment to the people. An ordinary citizen or a common man is hardly equipped to match such might of the officers of the State or instrumentalities of the State-Governments. Harassment of a common man by public authorities is socially abhorring and legally impermissible. 19- No civilized system can permit an executive to play with the people of its country and claim that it is entitled to act in any manner as it is sovereign. The public servants hold their offices in trust and are expected to perform with due diligence particularly so that their action or inaction may not cause any undue hardship and harassment to a common man. Every holder of public office by virtue of which he acts on behalf of the State, or its instrumentalities, is ultimately accountable to the people in whom sovereignty vests. No legal or political system today can place the State above law as it is unjust and unfair for a citizen to be deprived of his property illegally. No public servant can say you may set aside an order on the ground of malafide but you cannot hold me personally liable. No public servant can arrogate to himself the power to act in a manner which is arbitrary. Needs of the State, duty of its officials and right of the citizens are required to be reconciled so that the rule of law in a Welfare State is not shaken. A public functionary if he acts maliciously or oppressively and the exercise of power results in harassment and agony then it is not an exercise of power but its abuse. Harassment of a common man by public authorities is socially abhorring and legally impermissible. In a modern society no authority can arrogate to itself the power to act in a manner which is arbitrary. It is unfortunate that matters which require immediate attention linger on and the man in the street is made to run from one end to other with no result. Even in ordinary matters a common man who has neither the political backing nor the financial strength to match the inaction in public oriented departments gets frustrated and it erodes the credibility in the system. Where the public functionary exercises his discretion capriciously, or for considerations which are malafide or where there is flagrant abuse of power the public functionary himself must shoulder the burden of costs or compensation held as payable. 20- Looking into the facts and circumstances of the case and the principles of law as discussed above, I find it a fit case to impose an exemplary cost. 21- In view of the aforesaid, the impugned order is hereby quashed. Since the relief has now been extended to the petitioner by the authority concerned, therefore, no further order is required to be passed. 22- The writ petition is allowed with cost of Rs. 25,000/- which shall be paid by the State-respondents to the petitioner within four weeks from today. Liberty is granted to the State-Government to recover the aforesaid cost from respondent no.1. Let a copy of this order be sent by the Registrar General of this Court to the Chief Secretary of the Government of Uttar Pradesh for necessary action.\" So far as factual and legal aspect is concerned, the same has not been disputed by learned Standing Counsel. In the facts and circumstances of the case, the writ petition is disposed of with direction to the respondent no.3 to decide the claim of the petitioner in the light of the observations made by this Court in Ishrat Jahan (Supra) and Narsingh Rai (Supra) within two months from the date of receipt of certified copy of the order. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the petitioner alongwith a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing. Order Date :- 10.9.2020 RKP",
        "79816183": "REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1712 OF 2009 Pathan Hussain Basha \u2026 Appellant Versus State of A.P. \u2026 Respondent WITH CRIMINAL APPEAL NO. 1706 OF 2009 J U D G M E N T Swatanter Kumar, J. 1. Accused Pathan Hussain Basha, was married to Pathan Haseena Begum (now deceased) on 23rd June, 2002 at Guntur. It was an arranged marriage. At the time of marriage, it was promised that a dowry of Rs. 25,000/-, besides other formalities, would be paid by the side of the wife to the husband. Out of this amount, a sum of Rs. 15,000/- was paid at that time and it was promised that the balance dowry of Rs. 10,000/- would be paid in the month of October, 2002, upon which the marriage was performed. 2. The father of the bride could not pay the balance amount within time, because he lacked the resources. The accused Pathan Hussain Basha, his father Pathan Khadar Basha, and mother Pathan Nazeer Abi forced her to get the balance amount of dowry. Despite such pressure, she was not able to get that money from her family. It is the case of the prosecution that for non-payment of dowry, the accused persons harassed the deceased and subjected her to cruelty. They even refused to send her to her parental house. This was informed by the deceased to various persons, including her relatives and elders. She was unable to bear the cruelty to which she was subjected, by the accused persons. On 15th February, 2003, at about 11 a.m., the deceased committed suicide by hanging herself in the house of the accused. 3. When Pathan Basheerunnisa, LW3 returned from her work, the accused sent her out giving her money to bring the soaps upon which she went out and when she came back, she found the accused absent and the bride hanging in the house. Subsequently, LW-3 Pathan Basheerunnisa sent her grandson Pathan Inayatullah Khan, LW-4 to the house of the parents of the deceased to inform them about the incident. When the parents of the deceased came to the house of the accused and found the deceased hanging from the beam with a saree, they untied her and took her to the Government General Hospital, Guntur hoping that the deceased may be alive. However, upon medical examination by the doctor, she was declared brought dead. 4. The father of the deceased Pathan Yasin Khan, LW-1 and her mother Pathan Shamshad Begum, LW-2 were present at that time. LW-1, lodged the report, which was registered by Sri K. Srinivasarao, LW-16, the Sub- Inspector of Police. The FIR was registered under Section 304B and Section 498A of the Indian Penal Code, 1860 (for short the \u201cIPC\u201d). Thereafter, investigation was conducted by one Shri P. Devadass, LW-17. He inspected the site from where he recovered and seized the saree that had been used for hanging. This was done in the presence of LW-10 and LW-11, Shaik Ibrahim and Mohd. Ghouse, respectively. Thereupon, the body was sent for post-mortem examination through Constable P. Venkateswara Reddy, LW-15. LW-17, P. Devdass, also took photographs of the scene. LW-13, Dr. M. Madhusudana Reddy conducted autopsy over the body of the deceased and prepared post-mortem certificate giving the cause of death as asphyxia, as a result of hanging. 5. On 16th February, 2003, at about 5 p.m., Investigating Officer arrested all the three accused persons. They faced the trial and were convicted by learned Sixth Additional Munsif Magistrate, Guntur for committing an offence under Sections 498A and 304B IPC. 6. They were committed to the Court of Sessions, Guntur Division, Guntur for such an offence. They faced the trial and the learned Sessions Judge vide its judgment dated 4th October, 2004 found them guilty of the said offences and punished them as follows:- \u201cHence A.1 to A.3 are sentenced to undergo R.I. for THREE YEARS and further sentenced to pay a fine of Rs. 1,000/- each (total fine amount Rs. 3,000/-) offence punishable u/s. 498-A IPC. I.D. of the fine amount of Rs. 1000/- to undergo SI for 9 months. And further A.1 to A.3 are sentenced to undergo imprisonment for LIFE for the offence u/s. 304-B IPC. Both the sentences shall run concurrently. The undergone remand period of A.1 to A.3 shall be set off u/s. 428 Cr.P.C. M.O.1 shall be destroyed after expiry of appeal time. The unmarked property if any shall be destroyed after expiry of appeal time.\u201d 7. The judgment dated 4th October, 2004 passed by the learned Trial Court was challenged in appeal before the High Court. The High Court of Andhra Pradesh, vide its judgment dated 26th October, 2006, while allowing the appeal in part, convicted accused Nos.1 and 2 for the aforementioned offences, however, acquitted accused No. 3, namely, Pathan Khadar Basha. The sentence awarded by the Trial Court was confirmed. This gave rise to filing of the present appeals. 8. First and the foremost, we must consider what is the evidence led by the prosecution to bring home the guilt of accused. Accused were charged with offences under Sections 498A and 304B of the IPC. The FIR in the present case was lodged by LW-1, who is the father of the deceased. According to this witness, on 23rd January, 2002, the marriage of his daughter was solemnised with accused Pathan Hussain Basha and he had accepted to give Rs. 25,000/- in marriage. He had given only Rs. 15,000/- and had agreed to pay Rs. 10,000/-, after four months. This witness has further specifically stated that the said accused treated his daughter in a proper manner for about two months. In the marriage, he had also given a gold chain, a double bed, an iron safe and other items. He had called his son-in-law, accused No. 1, to his house, as per custom, at that point the accused demanded a ceiling fan. A ceiling fan was lying with the witness and he gave that to his son in law, however, he protested the same on the ground that the old fan is not acceptable to him and he would like to have a new fan, which was bought for Rs. 650/- by the witness and given to his son-in-law. When he again invited his son-in-law and the mother-in-law of his daughter, even then he had gifted some presents to them. The accused asked for Rs. 1,000/- with a ring for the deceased. The witness could pay only Rs. 500/- upon which the accused refused to take the deceased to the matrimonial home and went away. Later on, the accused came to fetch deceased. Subsequently, the mother-in-law of the deceased, again, demanded the balance dowry amount of Rs. 10,000/-, which he could not pay. His daughter, after the Ramzan festival, had informed him that the accused persons were harassing her and were even beating and abusing her. All three accused used to beat her for the remaining amount of dowry. On 15th February, 2003, a boy had come to him and told him that his daughter had died by hanging herself, whereupon he went to the house of the accused and found that his daughter was hanged to a wooden beam with a saree and she was dead. The saree was removed, she was taken to the hospital where she was reported to have \u2018brought dead\u2019. The statement of this witness i.e. LW-1 is corroborated by LW-3 and LW-7. 9. It is stated by LW-3 that she knew all the accused persons as she was residing in the house of the accused and the deceased. According to this witness also, in the beginning they were happy, however after some time, she used to hear some quarrel between the deceased and the accused persons. Accused No. 2, Pathan Nazeer Abi had given her some amount and asked her to go and bring the soaps. After bringing the soaps, she went to the house of the accused persons and found that the accused was absent and the deceased was hanging on one side of the room. After seeing this, she raised cries and people came to the scene. LW-4, Pathan Inayatullah Khan, the grandson of LW-3, went to the house of the parents of the deceased and informed them about the unfortunate incident. 10. LW-7 stated on oath that he was present at the time of giving of dowry to the accused by the family of the deceased. He confirmed the fact that Rs. 15,000/- was given at the time of marriage and Rs. 10,000/- was to be given within some time, which the father of the deceased failed to provide. According to him, the accused persons used to harass the deceased primarily for non-payment of the amount of dowry, as a result of which, she was forced to commit suicide. 11. In fact, there is no dispute to the fact that the deceased died of hanging. Dr. M. Madhusudana Reddy, LW-13 who was the Associate Professor in Forensic Medicine at Guntur Medical College, performed the post-mortem over the body of the deceased. In the medical report, LW13, he noticed \u201cOblique ligature mark of 17 x 2.5 cm present over front and left sides of neck\u201d as well as noticed \u201cAbrasion 1.5 x 1 cm present over lower part of middle of chin.\u201d Injuries were found to be antemortem in nature, and the cause of death was stated to be asphyxia, as a result of hanging 12. LW-14 is a witness to the seizure of the body and she noticed injuries on the body of the deceased. From the above evidence, it is clear that the dowry demands were being raised by the accused persons persistently from the family of the deceased and for that they even harassed the deceased, by beating and abusing her. She had informed her parents of the ill-treatment and the cruelty inflicted on her for non- giving of dowry. 13. The period intervening between the marriage and the death of the deceased is very small. They were married in the year 2002 and she committed suicide by hanging on 15th February, 2003. The witnesses, including LW-1 have stated that for the first few months they were happy, but thereafter, there were quarrels between the accused and the deceased. Accused Pathan Hussain Basha, when he had gone to the parental house of the deceased, demanded different items like fan, ring and Rs. 1,000/- in cash, and the balance of the agreed dowry amount. Since, these demands were not satisfied instantaneously, he even left the deceased at her parental house. At this stage, it will be appropriate for us to examine as to what are the ingredients of an offence punishable under Section 304B of the IPC. In the case of Biswajit Halder alias Babu Halder and Others v. State of W.B. [(2008) 1 SCC 202], the Court stated the ingredients of this provision as follows:- \u201c10. The basic ingredients to attract the provisions of Section 304- B are as follows: (1) the death of a woman should be caused by burns or fatal injury or otherwise than under normal circumstances; (2) such death should have occurred within seven years of her marriage; (3) she must have been subjected to cruelty or harassment by her husband or any relative of her husband; and (4) such cruelty or harassment should be for or in connection with demand for dowry. 11. Alongside insertion of Section 304-B in IPC, the legislature also introduced Section 113-B of the Evidence Act, which lays down when the question as to whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the court shall presume that such person had caused the dowry death. 12. Explanation appended to Section 113-B lays down that: \u201cFor the purpose of this section, \u2018dowry death\u2019 shall have the same meaning as in Section 304-B of Indian Penal Code.\u201d 13. If Section 304-B IPC is read together with Section 113-B of the Evidence Act, a comprehensive picture emerges that if a married woman dies in unnatural circumstances at her matrimonial home within 7 years from her marriage and there are allegations of cruelty or harassment upon such married woman for or in connection with demand of dowry by the husband or relatives of the husband, the case would squarely come under \u201cdowry death\u201d and there shall be a presumption against the husband and the relatives.\u201d 14. Besides examining the ingredients of the provision, it would also be necessary for us to examine the meaning and connotation of the expressions \u2018dowry death\u2019, \u2018soon before her death\u2019 and \u2018in connection with, any demand for dowry\u2019 as appearing in the said section. Amongst others, lapse of time between the date of marriage and the date of death is also a relevant consideration for the Court while examining whether the essential ingredients of the provision are satisfied or not in a given case. In the case of Ashok Kumar v. State of Haryana [(2010) 12 SCC 350], this Court explained these terms in some elucidation and the effect of the deeming fiction appearing in the section, as follows:- \u201c11. The appellant was charged with an offence under Section 304-B of the Code. This penal section clearly spells out the basic ingredients as well as the matters which are required to be construed strictly and with significance to the cases where death is caused by burns, bodily injury or the death occurring otherwise than under normal circumstances, in any manner, within seven years of a marriage. It is the first criteria which the prosecution must prove. Secondly, that \u201csoon before her death\u201d she had been subjected to cruelty or harassment by the husband or any of the relatives of the husband for, or in connection with, any demand for dowry then such a death shall be called \u201cdowry death\u201d and the husband or the relative, as the case may be, will be deemed to have caused such a death. The Explanation to this section requires that the expression \u201cdowry\u201d shall have the same meaning as in Section 2 of the Act. 12. The definition of \u201cdowry\u201d under Section 2 of the Act reads as under: \u201c2. Definition of dowry.\u2014In this Act, \u2018dowry\u2019 means any property or valuable security given or agreed to be given either directly or indirectly\u2014 (a) by one party to a marriage to the other party to the marriage; or (b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies. * * * Explanation II.\u2014The expression \u2018valuable security\u2019 has the same meaning as in Section 30 of the Penal Code (45 of 1860).\u201d 13. From the above definition it is clear that, \u201cdowry\u201d means any property or valuable security given or agreed to be given either directly or indirectly by one party to another, by parents of either party to each other or any other person at, before, or at any time after the marriage and in connection with the marriage of the said parties but does not include dower or mahr under the Muslim Personal Law. All the expressions used under this section are of a very wide magnitude. 14. The expressions \u201cor any time after marriage\u201d and \u201cin connection with the marriage of the said parties\u201d were introduced by the amending Act 63 of 1984 and Act 43 of 1986 with effect from 2-10- 1985 and 19-11-1986 respectively. These amendments appear to have been made with the intention to cover all demands at the time, before and even after the marriage so far they were in connection with the marriage of the said parties. This clearly shows the intent of the legislature that these expressions are of wide meaning and scope. The expression \u201cin connection with the marriage\u201d cannot be given a restricted or a narrower meaning. The expression \u201cin connection with the marriage\u201d even in common parlance and on its plain language has to be understood generally. The object being that everything, which is offending at any time i.e. at, before or after the marriage, would be covered under this definition, but the demand of dowry has to be \u201cin connection with the marriage\u201d and not so customary that it would not attract, on the face of it, the provisions of this section. 15. At this stage, it will be appropriate to refer to certain examples showing what has and has not been treated by the courts as \u201cdowry\u201d. This Court, in Ran Singh v. State of Haryana, (2008) 4 SCC 700 held that the payments which are customary payments, for example, given at the time of birth of a child or other ceremonies as are prevalent in the society or families to the marriage, would not be covered under the expression \u201cdowry\u201d. 16. Again, in Satvir Singh v. State of Punjab, (2001)8 SCC 633 this Court held that the word \u201cdowry\u201d should be any property or valuable given or agreed to be given in connection with the marriage. The customary payments in connection with birth of a child or other ceremonies are not covered within the ambit of the word \u201cdowry\u201d. 17. This Court, in Madhu Sudan Malhotra v. Kishore Chand Bhandari, 1988 Supp. SCC 424 held that furnishing of a list of ornaments and other household articles such as refrigerator, furniture and electrical appliances, etc. to the parents or guardians of the bride, at the time of settlement of the marriage, prima facie amounts to demand of dowry within the meaning of Section 2 of the Act. The definition of \u201cdowry\u201d is not restricted to agreement or demand for payment of dowry before and at the time of marriage but even include subsequent demands, was the dictum of this Court in State of A.P. v. Raj Gopal Asawa, (2004)4 SCC 470. 18. The courts have also taken the view that where the husband had demanded a specific sum from his father-in-law and upon not being given, harassed and tortured the wife and after some days she died, such cases would clearly fall within the definition of \u201cdowry\u201d under the Act. Section 4 of the Act is the penal section and demanding a \u201cdowry\u201d, as defined under Section 2 of the Act, is punishable under this section. As already noticed, we need not deliberate on this aspect, as the accused before us has neither been charged nor punished for that offence. We have examined the provisions of Section 2 of the Act in a very limited sphere to deal with the contentions raised in regard to the applicability of the provisions of Section 304-B of the Code. 19. We have already referred to the provisions of Section 304-B of the Code and the most significant expression used in the section is \u201csoon before her death\u201d. In our view, the expression \u201csoon before her death\u201d cannot be given a restricted or a narrower meaning. They must be understood in their plain language and with reference to their meaning in common parlance. These are the provisions relating to human behaviour and, therefore, cannot be given such a narrower meaning, which would defeat the very purpose of the provisions of the Act. Of course, these are penal provisions and must receive strict construction. But, even the rule of strict construction requires that the provisions have to be read in conjunction with other relevant provisions and scheme of the Act. Further, the interpretation given should be one which would avoid absurd results on the one hand and would further the object and cause of the law so enacted on the other. 20. We are of the considered view that the concept of reasonable time is the best criteria to be applied for appreciation and examination of such cases. This Court in Tarsem Singh v. State of Punjab, (2008) 16 SCC 155 held that the legislative object in providing such a radius of time by employing the words \u201csoon before her death\u201d is to emphasise the idea that her death should, in all probabilities, has been the aftermath of such cruelty or harassment. In other words, there should be a reasonable, if not direct, nexus between her death and the dowry-related cruelty or harassment inflicted on her. 21. Similar view was expressed by this Court in Yashoda v. State of M.P, (2004)3 SCC 98 where this Court stated that determination of the period would depend on the facts and circumstances of a given case. However, the expression would normally imply that there has to be reasonable time gap between t he cruelty inflicted and the death in question. If this is so, the legislature in its wisdom would have specified any period which would attract the provisions of this section. However, there must be existence of proximate link between the acts of cruelty along with the demand of dowry and the death of the victim. For want of any specific period, the concept of reasonable period would be applicable. Thus, the cruelty, harassment and demand of dowry should not be so ancient, whereafter, the couple and the family members have lived happily and that it would result in abuse of the said protection. Such demand or harassment may not strictly and squarely fall within the scope of these provisions unless definite evidence was led to show to the contrary. These matters, of course, will have to be examined on the facts and circumstances of a given case. 22. The cruelty and harassment by the husband or any relative could be directly relatable to or in connection with, any demand for dowry. The expression \u201cdemand for dowry\u201d will have to be construed ejusdem generis to the word immediately preceding this expression. Similarly, \u201cin connection with the marriage\u201d is an expression which has to be given a wider connotation. It is of some significance that these expressions should be given appropriate meaning to avoid undue harassment or advantage to either of the parties. These are penal provisions but ultimately these are the social legislations, intended to control offences relating to the society as a whole. Dowry is something which existed in our country for a considerable time and the legislature in its wisdom considered it appropriate to enact the law relating to dowry prohibition so as to ensure that any party to the marriage is not harassed or treated with cruelty for satisfaction of demands in consideration and for subsistence of the marriage. 23. The Court cannot ignore one of the cardinal principles of criminal jurisprudence that a suspect in the Indian law is entitled to the protection of Article 20 of the Constitution of India as well as has a presumption of innocence in his favour. In other words, the rule of law requires a person to be innocent till proved guilty. The concept of deeming fiction is hardly applicable to the criminal jurisprudence. In contradistinction to this aspect, the legislature has applied the concept of deeming fiction to the provisions of Section 304-B. Where other ingredients of Section 304- B are satisfied, in that event, the husband or all relatives shall be deemed to have caused her death. In other words, the offence shall be deemed to have been committed by fiction of law. Once the prosecution proves its case with regard to the basic ingredients of Section 304-B, the Court will presume by deemed fiction of law that the husband or the relatives complained of, has caused her death. Such a presumption can be drawn by the Court keeping in view the evidence produced by the prosecution in support of the substantive charge under Section 304-B of the Code. 15. Applying these principles to the facts of the present case, it is clear that the ingredients of Section 304B read with Section 498A IPC are completely satisfied in the present case. By a deeming fiction in law, the onus shifts on to the accused to prove as to how the deceased died. It is for the accused to show that the death of the deceased did not result from any cruelty or demand of dowry by the accused persons. The accused did not care to explain as to how the death of his wife occurred. Denial cannot be treated to be the discharge of onus. Onus has to be discharged by leading proper and cogent evidence. It was expected of the accused to explain as to how and why his wife died, as well as his conduct immediately prior and subsequent to the death of the deceased. Maintaining silence cannot be equated to discharge of onus by the accused. In the present case, the prosecution by reliable and cogent evidence has established the guilt of the accused. There being no rebuttal thereto, there is no occasion to interfere in the judgments of the courts under appeal. 16. The High Court acquitted Pathan Khadar Basha, the father-in-law of the deceased, as there was no direct evidence against him. His acquittal has not been challenged by the State before us, thus, we are not called upon to discuss this aspect of the matter. 17. Accused Pathan Hussain Basha and Pathan Nazeer Abi have rightly been found guilty of the offence by the courts. While we see no reason to differ with the concurrent findings recorded by the trial court and the High Court, we do see some substance in the argument raised on behalf of the appellants that keeping in view the prosecution evidence, the attendant circumstances, the age of the accused and the fact that they have already being in jail for a considerable period, the Court may take lenient view as far as the quantum of sentence is concerned. The offences having been proved against the accused and keeping in view the attendant circumstances, we are of the considered view that ends of justice would be met, if the punishment awarded to the appellants is reduced. 18. Consequently, we award ten years Rigorous Imprisonment to the appellants. The appeals are partially accepted to the extent afore- indicated. \u2026\u2026\u2026...\u2026.\u2026\u2026\u2026\u2026......................J. (Swatanter Kumar) \u2026\u2026\u2026...\u2026.\u2026\u2026\u2026\u2026......................J. (Fakkir Mohamed Ibrahim Kalifulla) New Delhi, August 16, 2012",
        "756812": "CASE NO.: Appeal (crl.) 1613 of 2005 PETITIONER: APPASAHEB AND ANR. RESPONDENT: STATE OF MAHARASHTRA DATE OF JUDGMENT: 05/01/2007 BENCH: G.P. MATHUR & R.V. RAVEENDRAN JUDGMENT: JUDGMENT G.P. MATHUR, J. : 1. This appeal, by special leave, has been preferred against the judgment and order dated 23.2.2005 of Bombay High Court (Aurangabad Bench), by which the appeal preferred by the appellants was dismissed and their conviction under Section 304-B read with Section 34 IPC and sentence of 7 years RI imposed thereunder by the learned Sessions Judge, Aurangabad, was affirmed. 2. The deceased Bhimabai was daughter of PW.1 Tukaram Eknath Tambe resident of village Sanjkheda and she was married to appellant no. 1 Appasaheb son of Sheshrao Palaskar about two and half years prior to the date of incident which took place on 15.9.1991. The appellant no. 2, Kadubai is the mother of the appellant no. 1 and both the appellants were residing in the same house in village Palshi. According to the case of prosecution, a sum of Rs. 5000 and some gold ornaments had been given at the time of marriage of Bhimabai. For about six months Bhimabai was treated well but thereafter the accused started asking her to bring Rs. 1,000-1,200 from her parents to meet the household expenses and also for purchasing manure. Whenever Bhimabai went to her parental home, she used to tell her parents that her husband and mother-in-law (accused appellants) were harassing her and used to occasionally beat her. Her father PW.1 Tukaram along with some of his relatives went to the house of the accused and tried to persuade them not to ill-treat Bhimabai. Thereafter, the accused treated Bhimabai properly but after about four months they again started harassing her. A few days before Nag Panchami festival Bhimabai came to her parental home and complained that the accused were not giving her proper food, clothings and even footwear. She also told her parents that her husband had asked her to bring an amount of Rs.1,000-1,200 for the purpose of household expenses and manure. The case of the prosecution futher is that in the evening of 15.9.1991 a person came from village Palshi on a motorcycle and informed PW.1 Tukaram that Bhimabai was unwell. PW.1 then immediately went to the house of the accused along with some of his relatives. There he saw that Bhimabai was lying dead and froth was coming out of her mouth which indicated that she had consumed some poisonous substance. The Police Patil of the village PW.3 Sandu Mohanrao Patil lodged an accidental death report at 9.00 p.m. on 15.9.1991 at the police station. On the basis of the said accidental death report, PW.6 Sandeepan Kamble, Police Sub-Inspector, visited the house of the accused, held inquest on the dead body of Bhimabai, and thereafter sent the same for post-mortem examination. PW.1 Tukaram lodged the FIR of the incident at 7.00 p.m. on 16.9.1991 at P.S. Chikalthana, on the basis of which Case Crime No. 144 of 1991 was registered against the appellants under Sections 498-A, 306 and 304-B IPC. 3. After completion of investigation, charge sheet was submitted against the appellants and in due course, the case was committed to the Court of Sessions. The learned Sessions Judge framed charges under Sections 498-A, 304-B read with Section 34 IPC and Section 306 read with Section 34 IPC against both the appellants. The appellants pleaded not guilty and claimed to be tried. The prosecution in order to establish its case examined six wintesses and filed some documentary evidence. The learned Sessions Judge after consideration of the material on record acquitted the appellants of the charges under Sections 498-A and 306 read with Section 34 IPC but convicted them under Section 304-B IPC and imposed a sentence of 7 years RI thereunder. The appeal preferred by the appellants was dismissed by the High Court by the judgment and order dated 23.2.2005. 4. We have heard learned counsel for the appellants, learned counsel for the State of Maharashtra and have perused the records. 5. The post-mortem examination on the body of deceased Bhimabai was conducted by a team of two doctors of Department of Forensic Medicine and Toxicology, Medical College, Aurangabad, namely, Dr. S.M. Jawale and Dr. H.V. Godbole on 16.9.1991. The doctors did not find any sign of external or internal injury on the body of the deceased and in their opinion, the cause of death was insecticide poisoning. The viscera was preserved for chemical analysis. The report of the post-mortem examination was admitted by the defence. 6. The specific case of the prosecution is that Bhimabai ended her life by consuming poison because of harassment caused to her by the appellants for or in connection with demand of dowry. It is, therefore, necessary to briefly examine the evidence of the prosecution witnesses. PW. 1 Tukaram, father of the deceased, has given details of the prosecution version of the incident in his statement in Court. He has deposed that in the marriage he had given Rs. 20,000 as dowry. Initially, Bhimabai was treated well for about six months, but thereafter the appellants started ill-treating her. Whenever Bhimabai came to her parental home, she used to complain that for some domestic reasons she was being harassed. When she had visited her parental home on the last occasion, she had said that her husband Appasaheb had asked her to bring Rs. 1,000-1,200 for domestic expenses and for purchasing manure as he had no sufficient money. Bhimabai had complained to him that she was not being given proper food, clothings and even footwear and occasionally the appellant no. 1 used to beat her. The last time she visited her parental home was during the festival of Nag Panchami and at that time she looked depressed. The witness has further deposed that on the date of incident, a man came from village Palshi on motorcycle and informed that he should immediately go there as Bhimabai was not well. He then went to village Palshi along with other persons of his family where he reached after sun set. He saw that Bhimabai was lying dead and froth was coming out of her mouth which was smelling of Thimet (insecticide). In his cross- examination he has admitted that his statement that he had given Rs.20,000 in dowry at the time of marriage was incorrect and in fact he had given Rs. 5,000 as dowry and the total expenses incurred in the marriage was about Rs. 20,000. He has also deposed that it was after about 1-1/2 years of marriage that Bhimabai first complained to him about the harassment being caused to her. There used to be some bickering in the marital life of Bhimabai and her husband on trifling matters. He has admitted that it was appellant no. 1 who had sent a person on motorcycle who had given information regarding Bhimabai being unwell and that both the appellants were present at the time of her funeral. PW.2 Babaji is real brother of father-in-law of PW.1 Tukaram. He has deposed that on an earlier occasion he had gone along with PW.1 and some others to the house of appellant no.1 to persuade him not to harass Bhimabai and to treat her well. In his cross- examination he has admitted that when he had gone to village Palshi to talk with the appellants regarding the ill-treatment being meted out to Bhimabai, there was no talk regarding monetary giving and taking. He also admitted that he had not gone to attend that funeral of Bhimabai. PW.5 Sumanbai is the mother of the deceased Bhimabai. She has stated in her examination-in-chief that Bhimabai was being ill-treated by the appellants and the reason for ill-treatment was that they were demanding money to be brought from her parental home. The last time Bhimabai visited her parental home was on the occasion of the festival of Nag Panchami and she had complained that she was being ill-treated and was sometimes given beating for bringing money from her parents. She has specifically stated that for a period of six months after the marriage, Bhimabai was treated well and thereafter she had started complaining about the harassment being caused to her. In her cross-examination, PW.5 Sumanbai has stated that after news about the condition of Bhimabai was given by a man from village Palshi, she along with her husband and some other relations went there and noticed that Bhimabai was lying dead in the house and froth was coming out of her mouth. She has further stated that she did not make any enquiry as to how Bhimabai had died. In her statement under Section 161 Cr.P.C. which was recorded very next day of the incident i.e. on 16.9.1991 she did not state that cause of ill-treatment was \"a demand for money and a consequent beating\". When confronted with her aforesaid statement under Section 161 Cr.P.C., she replied that she did not know why there was no mention in the said statement that the cause for ill-treatment was \"a demand for money and a consequent beating\". She further stated that it will be correct to say that her daughter was receiving ill-treatment as a result of \"domestice cause\". The learned trial Judge then sought clarification from the witnessses by putting the following question. :- \"Que:- What do you mean by \"domestic cause\"? Ans.:- What I meant was that there was demand for money for defraying expenses of manure etc. and that was the cause.\" In the very next paragraph she stated as under :- \"It is not true to suggest that in my statement before the police I never said that ill-treatment was as a result of demand for money from us and its fulfillment. I cannot assign any reason why police did not write about it in my statement.\" 7. PW. 3 Sandu, Police Patil of village Palshi has deposed that at about 4.20 p.m. on 15.9.1991, Narayan who is uncle of appellant no.1, Appasaheb, informed him that the wife of Appasaheb had expired. He then went to the house of the appellant and saw Bhimabai lying with froth coming out of her mouth. Thereafter, he gave a report about the incident in writing at the police station. In his cross-examination, he admitted that he did not make detailed enquiries as to what was the cause of death and where the incident had taken place. He has further deposed that Bhimabai had come to his house about six months earlier and had said all was not well between her and her husband, but she had not given any specific details. 8. The main witnesses regarding the alleged demand of money and also harassment and beating to Bhimabai are her father and mother, viz., PW.1 Tukaram and PW.5 Sumanbai. In his examination-in-chief PW.1 has said that whenever his daughter came to her parental home, she used to complain that she was being subjected to harassment by the appellants on account of some \"domestic reasons\" and further that her husband (appellant no.1) had told her that while coming back from her parental home she should bring Rs. 1,000-1,200 for expenses and for manure as he had no sufficient money. PW.5 Sumanbai has deposed that Bhimabai was receiving ill-treatment as a result of \"domestic cause\" and to a specific question put by the Court as to what she meant by \"domestic cause\" she gave a reply that there was a demand for money for defraying expenses of manure etc. It is important to note that in her statement under Section 161 Cr.P.C. which was recorded on the very next day of the death of Bhimabai, this witness did not state that the cause for ill-treatment was \"a demand for money and a consequent beating\". The evidence on record does not indicate that the police had any reason to favour the accused and deliberately omitted to mention about the alleged demand of money while recording the statement of PW.5 Sumanbai under Section 161 Cr. P.C. The evidence shows that the accused come from very humble background and they could not have exerted any kind of influence, financial or otherwise, upon the police so as to manage a statement favourable to them when in the course of investigation the statements of witnesses were being recorded under Section 161 Cr.P.C. Accepting the statements of father and mother on their face value that utmost which can be held is that the appellant no.1 had asked his wife Bhimabai to bring money for meeting domestic expenses and for purchasing manure. 9. Two essential ingredient of Section 304-B IPC, apart from others, are (i) death of women is caused by any burns or bodily injury or occurs otherwise than under normal circumstances, and (ii) women is subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for \"dowry\". The explanation appended to sub-section (1) of Section 304-B IPC says that \"dowry\" shall have the same meaning as in Section 2 of Dowry Prohibition Act, 1961. Section 2 of Dowry Prohibition Act reads as under :- \"2. Definition of \"dowry\" - In this Act \"dowry\" means any property or valuable security given or agreed to be given either directly or indirectly- (a) by one party to a marriage to the other party to the marriage; or (b) by the parent of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dowry or mahr in the case of persons to whom the Muslim Personal Law (shariat) applies. In view of the aforesaid definition of the word \"dowry\" any property or valuable security should be given or agreed to be given either directly or indirectly at or before or any time after the marriage and in connection with the marriage of the said parties. Therefore, the giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential. Being a penal provision it has to be strictly construed. Dowry is a fairly well known social custom or practice in India. It is well settled principle of interpretation of Statute that if the Act is passed with reference to a particular trade, business or transaction and words are used which everybody coversant with that trade, business or transaction knows or understands to have a particular meaning in it, then the words are to be construed as having that particular meaning. (See Union of India v. Garware Nylons Ltd., AIR (1996) SC 3509 and Chemicals and Fibres of India v. Union of India, AIR (1997) SC 558). A demand for money on account of some financial stringency or for meeting some urgent domestic expenses of for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood. The evidence adduced by the prosecution does not, therefore, show that any demand for \"dowry\" as defined in Section 2 of the Dowry Prohibition Act was made by the appellants as what was allegedly asked for was some money for meeting domestic expenses and for purchasing manure. Since an essential ingredient of Section 304-B IPC viz. demand for dowry is not established, the conviction of the appellants cannot be sustained. 10. Learned counsel for the appellants has also submitted that there is absolutely no evidence either direct or circumstantial to show that Bhimabai committed suicide. He has submitted that the insecticide Thimet is extensively used by the farmers for preservation of crop and is kept stored in their houses and it could be a case where Thimet accidentially got mixed with some food item and was consumed by Bhaimabai. It has thus been submitted that no offence under Section 306 IPC is made out against the appellants. We do not consider it necesary to examine this question. As already stated, the appellants were also charged under Sections 498-A and 306 read with Section 34 IPC but were acquitted of the said charges by the learned Sessions Judge, which order has attained finality for the reason that the State did not prefer appeal agains the same. The appeal before the High Court and also in this Court has been preferred by the appellants challenging their coviction under section 304-B read with section 34 IPC. It has been held in State of Andhra Pradesh v. Thadi Narayan, AIR (1962) SC 240 that Section 423(1)(b)(i) of Code of Criminal Procedure, 1898 (which corresponds to Section 386(b)(i) of Code of Criminal Procedure, 1973) is clearly confined to cases of appeals preferred against orders of conviction and sentence, the powers conferred by this clause cannot be exercised for the purpose of reversing an order of acquittal passed in favour of a party in respect of an offence charged, in dealing with an appeal preferred by him against the order of conviction in respect of another offence charged and found proved. Therefore, we have refrained from expressing any opinion as to whether the appellants could be held guilty of having committed the offence under Section 498-A or 306 IPC on the basis of evidence available on record as their acquittal under the aforesaid charges has attained finality and cannot be reversed in the appeal filed by the appellants challenging their conviction under Section 304-B IPC. 11. In view of the discussion made above, the appeal is allowed. The judgment and order dated 23.2.2005 of the High Court and the judgment and order dated 4.1.1993 of the learned Sessions Judge convicting the appellants under Section 304-B IPC are set aside and the appellants are acquitted of the said charge. The appellant no.1 is in custody. He shall be released forthwith unless wanted in some other case. The appellant no. 2 is on bail. The sureties and bail bonds furnished by her are discharged.",
        "75243301": "REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No. 822 OF 2012 RAJU @ DEVENDRA CHOUBEY \u2026. APPELLANT VERSUS STATE OF CHHATISGARH \u2026. RESPONDENT WITH CRIMINAL APPEAL NO. 867 OF 2013 WITH CRIMINAL APPEAL NO. 589 OF 2014 WITH CRIMINAL APPEAL NO. 1781 OF 2014 [Arising out of SLP (Crl.) No. 3737 OF 2014] 1 JUDGMENT S. A. BOBDE, J. Leave granted in SLP (Crl.) No. 3737/2014. 2 These appeals are preferred by four accused against the common Judgment of the High Court of Chhattisgarh at Bilaspur, confirming the Judgment of the Additional Sessions Judge, Bemetara, District Durg, convicting the appellants under Section 302 read with Sections 34 and 120B of the Indian Penal Code [hereinafter referred to as \u201cIPC\u201d] and sentencing each of them to undergo imprisonment for life with a fine of Rs. 1,000/-, and in default, to undergo additional rigorous imprisonment for three months. These appeals have been taken up for disposal together since they arise from a common judgment of the High Court deciding the appeals of the accused. 3. The appellant - Raju @ Devendra Choubey (accused no. 4) has filed Criminal Appeal No. 822 of 2012. The appellant - Mahesh (accused no. 3) has filed Criminal Appeal No. 867 of 2013. The appellant - Beenu @ Chandra Prakash (accused no. 2) has filed Criminal Appeal No. 589 of 2014. The appellant - Smt. Shashi Tripathi (accused no. 1) has filed Criminal Appeal arising out of Special Leave Petition (Criminal) No. 3737 of 2014. 4. PW-1 \u2013 Dr. Sharda Prasad Tripathi is the husband of accused Shashi Tripathi. On 25.11.2003, when PW-1 \u2013 Dr. Sharda Prasad Tripathi came home from his clinic, found that his daughter-in-law Bhavna Tripathi has been murdered. He lodged a First Information Report (F.I.R.) on 25.11.2003 at about 20:45 hours. The crime was registered. He deposed in court that on 25.11.2003, when he returned home, he found servant Anil Kumar (PW-21) was weeping. When he went inside, he found his daughter-in-law - Bhavna and wife - Shashi lying in the courtyard. Bhavna was dead. Shashi was unconscious. There were numerous injuries, including incised wounds on Bhavna, none on Shashi. 5. After registration of the crime, inquest was conducted over the dead body of Bhavna on 26.11.2003. Post mortem was conducted by Dr. Naresh Tiwari and Dr. M. Deodhar, who gave their report which is marked as Exhibit P/18. Spot map was prepared by the Inquiry Officer (IO); bloodstained cloth of accused Shashi Tripathi was taken into possession along with broken bangles; bloodstained cement mortar and plain cement mortar were also taken into possession. Shashi Tripathi, Mahesh and Binu @ Chandra Prakash were arrested on 29.11.2003. A bloodstained knife was taken into possession. The accused Raju @ Devendra Choubey was taken into custody on 22.12.2003 and a Suzuki motorcycle was also taken into possession. 6. A test identification was conducted by the Executive Magistrate in the Sub Jail, Bemetara on 13.12.2003. A similar identification parade of Raju @ Devendra Choubey was conducted on 26.12.2003 after his arrest. 7. A sealed packet containing hair found in the grip of the deceased and another sealed packet containing bloodstained cloth of the deceased were taken into possession vide Exhibit P/35. 8. After committal, the Trial Court framed charges under Section 302 read with Sections 34 and 120B of the IPC. The prosecution examined 32 witnesses. No defence witness was examined after the statements of the accused were recorded under Section 313 of the Criminal Procedure Code, 1973. 9. According to the prosecution the accused Shashi Tripathi is the step mother-in-law of deceased Bhavna Tripathi. Bhavna was married to her step son \u2013 Jitendra Kumar in July, 2003. Shashi Tripathi used to be annoyed with Bhavna Tripathi on account of some domestic dispute. She engaged the other accused for murdering Bhavna. Bhavna was murdered on 25.11.2003 at about 18:30 hours in the house where she resided with Shashi Tripathi. 10. There is no dispute that Bhavna\u2019s death is homicidal. Dr. M. Deodhar, who conducted the postmortem, opined that cause of her death was neurogenic and hemorrhagic shock. The injuries found on person of the deceased were as follows: \u201cExternal Injuries: (1) incised wound on left scapular region of size 3 cm x 1 cm; (2) incised wound on left scapular region of size 4 cm x 1 \u00bd cm x 1 \u00bd cm; (3) one incised wound on left auxiliary region on the posterior auxiliary region of size 3 cm x 2 cm x 3 cm; (4) incised wound on lower costal region left of size 3 \u00bd cm x 2 cm x 1 cm; (5) incised wound on lower costal region right side on right epigestic region of size 3 \u00bd cm x 3 cm with punctured wound; (6) incised wound over right costal region of size 3 cm x 2 cm x 1 cm; (7) incised wound on right supra mammary region near middle of size 4 cm x 1 cm x 1 \u00bd cm; (8) incised wound on right supra mammary region lateral aspect of size 3 cm x 1 \u00bd cm x 1 \u00bd cm; (9) incised wound on radial aspect of left forearm near wrist joint of size 2 \u00bd cm x \u00bd cm x \u00bd cm; (10) incised wound on forearm left hand radial side dorsal aspect on lower 2/3rd region; (11) incised wound on left forearm middle l/3rd region, radial side and posterior aspect of size 2 \u00bd cm x 1\u00bd cm x 1 cm; (12) incised wound on left hand dorsal aspect on 2nd and 3rd metacarpal region of size 2\u00bd cm x \u00bd cm x 1\u00bd cm; (13) incised wound on ulna region of left hand on lower 1/3rd region of size 1 cm x \u00bd cm x 1 cm; and (14) incised wound over left side of neck, on anterior triangle of size 2 cm x \u00bd cm x 1 \u00bd cm. Internal injuries: Brain membrane pale; lungs, trachea pale, punctured wound on right and left lungs of size 2 cm x 1 cm, 2 \u00bd cm and 1 cm x 3 cm; lobe was cut and there was 3 cm punctured wound. Incised wound was also present on the right lobe of size 3 cm x 1/3 cm x 3\u00bd cm. Liver, kidney and spleen were pale. The deceased was carrying fetus of two months.\u201d 11. The sole eyewitness was a boy of 13 years of age \u2013 Anil Kumar (PW- 21), who worked as a servant with the family. Shashi Tripathi had brought him home from Bilaspur. He participated in the identification parade, which was held in Sub Jail, Bemetara, and identified the accused persons in the court by touching them. 12. We have carefully examined the manner in which the identification parade was conducted and the manner in which the boy \u2013 Anil Kumar (PW-21) identified the accused in Court and we have no reason to doubt the identification of the accused, which assumes importance in this case since the boy did not know the accused before the incident. 13. It is Anil Kumar (PW -21), who first informed the head of the family Dr. Sharda Prasad Tripathi (PW-1), the complainant, about the incident, when he came home after closing his clinic. He deposed before the Court that Shashi Didi (accused) brought him to village \u2013 Jevra from Bilaspur. He lived in the house of Shashi Didi. He ate his food there and studied in a school. He deposed that Doctor Sahab is her husband and Shivendra and Jitendra are her sons. Jitendra is her step-son and the deceased Bhavna is the wife of Jitendra. She resided with Shashi Didi. Jitendra is a doctor, resided and practiced at Khamaria, whereas his wife resided at Jevra. His brother \u2013 Shivendra studies at Calcutta. He referred to Bhavna as Bhabhi. He stated that Shashi Didi and Bhavna sometimes used to quarrel. 14. About the assault, he deposed that Devendra caught Bhavna and Chandra Prakash attacked her with knife 3 to 4 times and she fell down. The incident occurred in the courtyard and Shashi Didi was present in the passage. Mahesh, the fourth accused, was standing outside the house. After the assault, Chandra Prakash went to the TV room where Shashi Didi had kept some money in a rubber band on the table. The accused \u2013 Chandra Prakash had threatened him not to disclose anything about the incident to anyone. Thereafter all the three accused fled from there. He further deposed that Shashi Didi took him upstairs to the terrace and asked him not to disclose the truth to anyone but to say that thieves came into the house and committed the crime. Shashi Didi thereafter started shouting. Then she lay down on the courtyard near Bhavna Bhabhi. 15. This deposition clearly implicates accused Nos. 1, 2 and 4. The picture that emerges is that Shashi Tripathi caused Bhavna to be killed and for this purpose engaged Chandra Prakash (accused No. 2) and Raju @ Devendra Choubey (accused No. 4) by paying them money. She also seems to have had a scuffle with Bhavna, which is apparent from the fact that her hair was found in the grip of the deceased during investigation. It is obvious that accused nos. 2 and 4 did not enter the house to commit a robbery and had a single mission, namely, to kill Bhavana. There is no evidence that they had any previous animosity with the deceased and appeared to have acted as contract killers. 16. The prosecution has found it difficult to pinpoint the motive but Shashi Tripathi\u2019s husband Dr. Sharda Prasad Tripathi (PW-1) deposed before the Court that she tried to create a hindrance in the marriage of his son Jitendra since she wanted her daughter Abhilasha to marry him; however, he went ahead with the marriage of Jitendra to Bhavna, whereupon Shashi Tripathi remained silent. 17. The credibility of the evidence of Anil Kumar (PW-21) was attacked by the learned counsel for the appellants, who submitted that the boy is a tutored witness, who has been influenced by the police with whom he spent a lot of time. In fact, he even came to the Court in the company of a police constable after being served summons at Allahabad. The learned counsel submitted that the evidence of a child witness must be carefully scrutinized before acceptance since a child can be easy prey for tutoring and the court must insist on corroboration from other evidence. 18. On a careful perusal of the deposition of this child witness, we have not found any reason why he would have lied. He was brought to the house by Shashi Tripathi (accused), who apparently took care of him and sent to school and gave him food and residence. He had no grouse against her neither any ulterior motive in identifying the accused, who were not acquainted to him. There was no reason for the sole eye witness - Anil (PW- 21) to implicate anybody falsely. Merely because he has been some time in the company of the police at the police station his testimony cannot be discarded as untrue. The incident occurred within the four walls of the house of the accused - Shashi Tripathi and the only witness was the boy \u2013 Anil (PW-21). His statement that the accused Chandra Prakash attacked the deceased is corroborated by the recovery of knife from Chandra Prakash. It must be remembered that the boy comes from a rural back ground and was 13 years of age when the incident occurred. His presence in the house is entirely natural and we have no reason to discard his testimony. 19. The learned counsel for the appellants forcefully attacked the conviction of the other accused viz. Mahesh, Chandra Prakash and Devendra Kumar, who admittedly were not known to the child witness Anil Kumar. It was submitted that the test identification parade were delayed and the identification of these accused by the witness in Court was not reliable. It is not possible for us to accept this contention. Mahesh and Chandra Prakash were arrested on 29.11.2003, their identification parade was conducted on 13.12.2003 - (within a fortnight or so). The accused Devendra Kumar was arrested on 22.12.2003 and his identification parade was conducted on 26.12.2003- (within four days). There is no evidence on record to show that the child witness had an opportunity to see and study the features of the accused between their arrest and test identification parade to enable a tutored identification. In any case, the period between the arrest and the identification parade was not large enough to constitute inordinate delay. The learned counsel for the appellants relied upon the Judgment of this Court in Budhsen and Anr. Vs. State of U.P. (1970) 2 SCC 128 where this Court made the following observations:- \u201c7. Now, facts which establish the identity of an accused person are relevant under Section 9 of the Indian Evidence Act. As a general rule, the substantive evidence of a witness is a 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 evidence in order to carry conviction should ordinarily clarify as to how and under what circumstances he came to pick out the particular accused person and the details of the part which the accused played in the crime in question with reasonable particularity. The purpose of a prior test identification, therefore, seems to be 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 proceeding. There may, however, be exceptions to this general rule, 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 investigation stage. They are generally held during the course of investigation with the primary object of enabling the witnesses to identify persons concerned in the offence, who were not previously known to them. This serves to satisfy the investigating officers of the bona fides of the prosecution witnesses and also to furnish evidence to corroborate their testimony in court. Identification proceedings in their legal effect amount simply to this: that certain persons are brought to jail or some other place and make statements either express or implied that certain individuals whom they point out are persons whom they recognise as having been concerned in the crime. They do not constitute substantive evidence. These parades are of the essentially governed by Section 162, Criminal Procedure Code. It is for this reason that the identification parades in this case seem to have been held under the supervision of a Magistrate. Keeping in view the purpose of identification parades the Magistrates holding them are expected to take all possible precautions to eliminate any suspicion of unfairness and to reduce the chance of testimonial error. They must, therefore, take intelligent interest in the proceedings, bearing in mind two considerations: (i) that the life and liberty of an accused may depend on their vigilance and caution and (ii) that justice should be done in the identification. Those proceeding should not make it impossible for the identifiers who, after all, have, as a rule, only fleeting glimpses of the person they are supposed to identify. Generally speaking, the Magistrate must make a note of every objection raised by an accused at the time of identification and the steps taken by them to ensure fairness to the accused, so that the court which is to judge the value of the identification evidence may take them into consideration in the appreciation of that evidence. The power to identify, it may be kept in view, varies according to the power of observation and memory of the person identifying and each case depends on its own facts, but there are two factors which seem to be of basic importance in the evaluation of identification. The persons required to identify an accused should have had no opportunity of seeing him after the commission of the crime and before identification and secondly that no mistakes are made by them or the mistakes made are negligible. The identification to be of value should also be held without much delay. The number of persons mixed up with the accused should be reasonably large and their bearing and general appearance not glaringly dissimilar. The evidence as to identification deserves, therefore, to be subjected to a close and careful scrutiny by the Court\u2026\u2026.\u201d The observations of this Court undoubtedly lay down the correct law and we have no reason to doubt them. We, however, do not see how the observations help the appellants. In the present case, the child witness has been found to be reliable. His presence is not doubted, since he resided with the family for whom he worked. He had no axe to grind against any of the accused. He became the unfortunate witness of a gruesome murder and fearlessly identified the accused in Court. In his deposition he specified the details of the part which the accused played with reasonable particularity. In such a situation, it is considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witness in Court as to the identity of the accused who are strangers to them, in the form of earlier identification proceeding, as observed by this Court in Budhsen\u2019s case (supra). This Court has not laid down the requirement in general that all identification parades must be under the supervision of a Magistrate as in Budhsen\u2019s case (supra). The learned counsel for the appellants also relied upon the Judgments of this Court in Subash and Shiv Kumar Vs. State of U.P. (1987) 3 SCC 331, and Mohd. Abdul Hafeez Vs. State of Andhra Pradesh AIR 1983 SC 367. The facts and circumstances of the cases are however different and it is not necessary to consider those cases in detail while dealing with the present case. Suffice it to say that those cases do not create any doubt as regards the conviction in this case. 20. Mr. P.C. Agrawala, learned senior counsel for the appellant Mahesh (accused no. 3), vehemently submitted that this accused ought not to have been convicted under Section 302 with the aid of Sections 34 and 120 (B) of IPC. In particular it was submitted that the role attributed to the accused was that he merely stood outside the house. He did not even act as a guard because when the witness Anil Kumar (PW-21) came to the house, he was not even stopped by the accused from entering the house. The learned counsel for Mahesh (accused no.3) relied on several decisions of this Court in Suresh Sakharam Nangare Vs. State of Maharashtra (2012) 9 SCC 249, Jai Bhagwan Vs. State of Haryana AIR 1999 SC 1083 and Ramashish Yadav Vs. State of Bihar (1999) 8 SCC 555. 21. It is settled law that common intention and conspiracy are matters of inference and if while drawing an inference any benefit of doubt creeps in, it must go to the accused vide Baliya Vs. State of M.P. (2012) 9 SCC 696. 22. On a careful conspectus of the facts and the law, we are of the view that the prosecution has failed to prove the guilt of Mahesh beyond reasonable doubt. There is no evidence of his having played any part in the crime. He was merely seen by the witness as standing outside the house when the witness came home. Mahesh did not even act as a guard; he did not prevent Anil Kumar (PW-21) from entering the house. There is no evidence of the formation or sharing of any common intention with the other accused. There is no reference to a third person in the FIR; no evidence that he came with the other accused or left with them. No weapon was seized from him, nor was any property connected with the crime, seized. Having regard to the role attributed to him and the absence of incriminating factors we find that it is not safe to convict Mahesh of the offence of murder with the aid of Sections 34 and 120(B). 23. We therefore, hold that the accused Mahesh (accused no. 3) in Criminal Appeal No. 867 of 2013 is innocent and the conviction against him is set aside. His bail bonds stand cancelled and sureties are discharged. 24. In view of the above, Criminal Appeal No. 867 of 2013 is allowed and Criminal Appeal Nos. 822 of 2012, 589 of 2014 and Criminal Appeal arising out of SLP (Criminal) No. 3737 of 2014 are dismissed. \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026.\u2026..........\u2026..J. [DIPAK MISRA] .................................\u2026\u2026\u2026J. [S.A. BOBDE] NEW DELHI, AUGUST 21, 2014",
        "806212": "REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 5743-5745 OF 2005 Infosys Technologies Ltd. ...... Appellant Vs. Jupiter Infosys Ltd. & Anr. ...... Respondents JUDGMENT R.M. LODHA, J. These three appeals by special leave are directed against the order dated September 9, 2004 passed by Intellectual Property Appellate Board (for short, `IPAB') whereby it ordered the removal of appellant's mark `Infosys' from the register of trade marks in respect of computer stationery, computer manuals, printed matter for computer, instructional and teaching materials, computer hardware and peripherals and machine and machine tools. 2. The appellant is Infosys Technologies Limited. It was incorporated and registered under the Companies Act, 1956 on July 2, 1981 in the name of Infosys Consultants Private Limited. The appellant got the trade mark `Infosys' registered in 1987 in classes 16 and 9 in connection with computer stationery, computer manuals, printed manual for computer instruction and teaching materials; computer hardwares, computer interface, computer peripherals, electronics telex interface and in 1988 in class 7 in connection with machine and machine tools and motors (not for land vehicles). The particulars with reference to the trade mark registered by the appellant are as follows : Date Registration Class Goods No. 15.07.1987 475269 Class 16 Computer Stationery, Computer Manuals, Printed Manuals for Computer Instruction and teaching materials etc. 15.07.1987 475267 Class 09 Computer Hardwares, Computer Interface, Computer Peripherals, Electronics Telex Interface and all goods covered in class 09. 27.01.1988 484837 Class 07 Machine and Machine Tools and Motors (not for land vehicles) included in class 07. 3. On April 21, 1992, the name of the company--Infosys Consultants Pvt. Limited--was changed to Infosys Technologies Pvt. Ltd. and thereafter on June 2, 1992, the name was changed to the present name, i.e. Infosys Technologies Limited. 4. The first respondent is Jupiter Infosys Limited. The first respondent was incorporated and registered in September 1978 under the name of Jupiter Agencies Pvt. Limited. The name of the first respondent was changed to Jupiter Infosys (P) Limited in August, 1995 and now since July, 2003, the name is changed to Jupiter International Limited. 5. On October 11, 1996, the appellant instituted a suit in the Calcutta High Court for perpetual injunction, inter alia, restraining the first respondent from infringing the appellant's mark `Infosys' by using the mark `Infosys' by itself or in combination with other marks in course of its trade. The appellant also prayed for an interim order in the suit. On November 22, 1996, the Calcutta High Court by an ad- interim order restrained the first respondent from using the word `Infosys' in any manner in relation to the goods for the time being. The ad-interim order was confirmed on November 29, 1996. 6. The appellant having come to know of several instances of misuse of mark `Infosys' also filed a writ petition (being writ petition no. 14214 of 2000) before the Calcutta High Court, inter alia, praying that the Registrar of Companies be restrained from registering the companies bearing the name `Infosys'. On September 13, 2000, the Calcutta High Court restrained the Department of Company Affairs and Registrar of Companies from incorporating any company bearing the name `Infosys' without the permission of the appellant. 7. In January 2001, the appellant filed yet another suit before the High Court of Judicature at Madras for permanent injunction restraining the first respondent from offering shares to the public as claimed in the Initial Public Offer (IPO) using `Infosys'. The Single Judge of the Madras High Court passed an interim restraint order on February 1, 2001 against the first respondent. The said order was confirmed on May 22, 2001 to remain operative till disposal of suit. 8. The first respondent then filed three separate applications before the Madras High Court, inter alia, under Sections 46 and 56 of the Trade and Merchandise Marks Act, 1958 (`the 1958 Act'). In O.P. No. 764 of 2001, the first respondent prayed for the removal/rectification of the entry in the register of trade mark in respect of trade mark No. 475269 in Class 16 while in the other two applications being O.P. No. 765 of 2001 and O.P. No. 766 of 2001, the first respondent prayed for removal/rectification of trade mark No. 475267 in Class 9 and trade mark No. 484837 in Class 7 respectively. 9. The appellant opposed these applications on diverse grounds by filing counter affidavits. 10. On August 12, 2003, the Madras High Court framed the following issues: a) Whether the mark applied for registration was used in respect of the goods for which the mark was registered? b) Whether the respondent had a bonafide intention to use the mark applied for under section 18 of the Trade and Merchandise Marks Act? c) Whether the mark registered in favour of the respondent is a service mark? d) Whether there is a non use of registered trade mark by the respondent for a period of over 5 years and 1 month. e) Whether the registered trade mark is disentitled for protection in a Court of Law under Section 11(e) of the Trade and Merchandise Marks Act? f) Whether the registered trade mark has lost its distinctiveness and is liable to be removed under section 32(c)? g) Whether the respondent has committed fraud while obtaining registration of the mark? And h) To what further relief? 11. The 1958 Act was repealed by the Trade Marks Act, 1999 (for short, `the 1999 Act'). In terms of Section 100 of the 1999 Act, the three petitions filed by the first respondent before the Madras High Court for rectification/removal of registered trade mark Nos. 475269, 475267 and 484837 were transferred to the IPAB. 12. Some more facts may be noticed. The appellant filed yet another suit (being suit no. 2115 of 2002) before Delhi High Court for infringement of trade mark and passing off against the first respondent. In that suit, the appellant also made an application for grant of temporary injunction. The vacation Judge of the Delhi High Court, on December 27, 2002 passed an order of temporary injunction against the first respondent as follows: \"Notice for 24th March, 2003 before the Joint Registrar. Heard. Perused the averments made in the suit and application which are duly supported by documents on record. I am of the opinion that in case ex-parte ad-interim orders are not granted, the relief claimed itself may be rendered infructuous. Accordingly it is directed that pending further consideration of the matter after notice for the next date of hearing, the defendants are restrained by themselves, their directors, employees, agents and/or others acting on its behalf, from using the trade mark/corporate name INFOSYS or any other mark/name deceptively similar trade mark or colourable imitation thereof as a mark and/or corporate name or as part of a mark and/or business name, in respect of goods and/or services, for publicity on propaganda, on websites and or in domain names, in any way, whatsoever, thereby causing infringement of the registered trade mark INFOSYS of the plaintiff in isolation or in combination with words/letters/numbers their advertisements as part of their corporate name either in isolation or in goods and services, or in or by way of any advertisement/publicity campaigns etc. Compliance of Order XXXIX Rule 3 CPC within three days.\" The said suit was transferred to the Court of the Additional District Judge, Tis Hazari Court, Delhi. In that suit, an affidavit came to be filed by the first respondent wherein it was stated that the name of the company has been changed from Jupiter Infosys Limited to Jupiter International Limited and a certificate to that effect has been issued by the Registrar of Companies, Kolkata under the Companies Act, 1956 and no dispute remains between the parties under the trade mark. The relevant statement made in the affidavit dated July 14, 2003 (we were informed that the date of the affidavit is July 14, 2004) reads as follows: \"4. That in the meantime the defendant has already changed the Trade Mark namely \"Jupiter International Ltd.\" in place of \"Jupiter Infosys Ltd.\" The copy of the incorporation on change of name which was issued by the registrar of the Companies are being marked and annexed herewith as Annexure A. 5. That now there is no dispute between the plaintiff and defendant under the Trade Mark.\" Based on this affidavit, the suit was partially decreed in favour of the appellant on November 10, 2004. 13. In 2007, however, the first respondent filed a suit in the Court of Additional District Judge, Delhi for setting aside the decree dated November 10, 2004. That suit is said to be pending. 14. The IPAB proceeded with the matter in light of the issues that were already framed by the High Court and heard the parties. The IPAB in the impugned order while dealing with the plea of limitation raised by the appellant held that the first respondent was the appropriate aggrieved party in the matter in view of the fresh cause of action having arisen to the first respondent on filing of Civil Suit No. 71 of 2001 by the appellant before the Madras High Court. The IPAB in the impugned order held that the trade mark Nos. 475269, 475267 and 484837 have not been used by the appellant for more than a period of five years and one month and the appellant also failed to make out that it had been in manufacturing or trading of the goods for which it had taken Registration Nos. 475269, 475267 and 484837. Consequently, the IPAB allowed the applications made by the first respondent purportedly under Section 46(1)(b) of the 1958 Act and directed the Registrar to remove these registrations from the register. 15. We heard Mr. Akhil Sibal, learned counsel for the appellant and Mr. Vaibhav Gaggar, learned counsel for the first respondent at quite some length. 16. Mr. Akhil Sibal, learned counsel for the appellant argued that an application for rectification, whether under Section 46 or Section 56 of the 1958 Act, can only be preferred by a `person aggrieved'; the applicant must not only be a person aggrieved on the date of the application but must continue to remain a person aggrieved until such time as the rectification application is finally decided. He contended that the first respondent is not shown to have ever traded or intended to trade in any goods covered by the appellant's registrations under Classes 7 and 16 and as such the first respondent is not a `person aggrieved' with regard to the appellant's registrations under these two classes. As regards Class 9 he would submit that in view of the affidavit filed by the first respondent on July 14, 2004 in the Court of Additional District Judge, Delhi the first respondent ceases to be an aggrieved person on the date of consideration of the rectification application. Learned counsel heavily relied upon two decisions of this Court: (1) Hardie Trading Ltd. & Anr. v. Addisons Paint & Chemicals Ltd.1 and (2) Kabushiki Kaisha Toshiba v. Tosiba Appliances Company & Ors.2. 17. Assailing the finding of the IPAB as regards non-use by the appellant during the relevant period, learned counsel for the appellant argued that the said finding was erroneous on legal as well as factual premise. He contended that the IPAB erred in holding that software was a `service' and the subject registrations were in relation to goods without considering the wide definition of `goods' provided under Section 2(g) of the 1958 Act. Mr. Akhil Sibal argued that the IPAB committed grave error in relying upon the provisions of the 1999 Act and the Trade Marks Rules, 2002 when these provisions were not applicable as the applications were filed under the 1958 Act. According to him, the IPAB sought to rely upon `computer programming' which is a `service' enumerated in Class 42, without considering the distinction between a `computer programme' and `computer programming' and without noticing the (2003) 11 SCC 92 (2008) 10 SCC 766 entry `computer' under Class 9 which falls within `goods'. Learned counsel would submit that in examining the question of non-use under Section 46(1)(b), the IPAB failed to consider that the requisite use must be `in relation to goods' under registration, which is extensively defined under Section 2(2)(b) of the 1958 Act. 18. Mr. Akhil Sibal, learned counsel also argued that the IPAB failed to have regard to the proviso to Section 46(1), in terms of which it is open to the registered proprietor to rely upon use of the registered trade mark during the relevant period in relation to `goods of the same description', in order to resist an application for rectification. He contended that the IPAB failed to apply proper legal tests for determining `goods of the same description' and had that been done it would be evident that `computer software' amounts to `goods of the same description' as `computer hardware'. In this regard, he relied upon M/s. Eagle Potteries Private Ltd. v. M/s. Eagle Flask Industries Pvt. Ltd.3; Lever Brothers, Port Sunlight Ld. v. Sunniwite Products Ld.4; The Ritz Hotel v. Charles of the Ritz5 and Australian Wine Importers' Trade Mark6. AIR 1993 Bombay 185 (1949) 66 RPC 84 (1989) RPC 333 (1889) 6 RPC 311 19. Learned counsel for the appellant also submitted that in any view of the matter, the IPAB erred in exercising its discretion under Section 46 of the 1958 Act without taking into consideration the aspect of public interest. He argued that the IPAB ought to have considered whether use of mark `Infosys' by the first respondent on computer hardware would create confusion in the mind of the consumers that they might be led to believe that the said hardware is manufactured by the appellant. Learned counsel, thus, submitted that the impugned order is unsustainable and liable to be set aside. 20. On the other hand, an objection is raised in the written submissions on behalf of the first respondent -- and reference was made in support of the objection to seven Judge Bench decision of this Court in L. Chandrakumar v. Union of India & Ors.7 -- that challenge to the order of IPAB directly in the appeal before this Court under Article 136 of the Constitution is barred. 21. In reply to the arguments of learned counsel for the appellant, Mr. Vaibhav Gaggar, learned counsel for the first respondent strenuously urged that the plea of `aggrieved person' is a new plea and raised substantially for the first time before this Court. He argued that the appellant has not taken the plea of the first (1997) 3 SCC 261 respondent not being a `person aggrieved' with respect to filing of the applications for rectification before the IPAB; merely urging the plea that the first respondent has no locus standi in the written submissions before the IPAB is not sufficient. Learned counsel would submit that the appellant has, for the first time, argued before this Court that the first respondent is not a person aggrieved and/or not capable of maintaining the rectification proceedings with respect to each and every good for which the appellant has been registered since the first respondent has not been registered for all the goods. Mr. Vaibhav Gaggar rather asserted that the first respondent is a person aggrieved in view of the fact that various suits for infringement have been filed by the appellant against the first respondent and on the date of the applications for rectification/removal of the subject registrations from the register, the suits were pending. With reference to the affidavit dated July 14, 2004 filed by the first respondent before the Court of Additional District Judge, he submitted that the said affidavit has no relevance in consideration as to whether the first respondent is an aggrieved person as Section 46 (1) of the 1958 Act relates only to the period upto the date of the filing of the rectification application and the rights of the parties crystallized at that stage itself. In this regard, he relied upon a decision of the Madras High Court in Agha Hyder Hussain & Anr. v. Omar Khayyam Wineries (Pvt.) Ltd. & Anr.8 He also placed reliance upon some more decisions viz; Ritz Hotel Ltd.5, Philosophy Di Alberta Ferretti9 ; Keystone Knitting Mills Trade Mark10 and Motor Terms Company Pty. Limited. v. Liberty Insurance Ltd.11. Learned counsel for the first respondent further submitted that the affidavit dated July 14, 2004 was not placed by the appellant before the IPAB nor any reference of the said affidavit has been made in the written submissions before the IPAB and the appellant also did not make any effort to amend the pleadings that the first respondent was not an aggrieved person. It was contended by Mr. Vaibhav Gaggar that even otherwise in view of the fraud perpetrated by the appellant qua the registrations in question, the issue as to whether the first respondent had a dispute with the trade mark or not pales into insignificance as the primary duty of the court is to maintain the `purity of the register'. He argued that in a case such as the present one since the allegations against the appellant relate to trafficking, AIR 1977 Mad 166 2003 R.P.C. 15 1929 (1) Ch.D. 92 1967 116 C.L.R. 177 squatting and non-user, the scope of `person aggrieved' has to be enlarged. Learned counsel submitted that the fact that the appellant continues to allege - and that stance has not changed in the pleadings in SLP as well--that the first respondent is an infringer, pilfriger, defrauder, someone who wants to ride on the goodwill of the appellant or someone who wants to mislead the public at large, there is no question of the first respondent ceasing to be a person aggrieved at any stage. 22. Mr. Vaibhav Gaggar, learned counsel for the first respondent contended that the appellant is registered as a `manufacturer and trader' under Classes 7, 9 and 16 even though, it is a company engaged in software only. Moreover, there is nothing on record to indicate linkage with the manufacturing or marketing of the goods for which the appellant is holding registration of subject trade marks. He vehemently contended that goods in Classes 7, 9 and 16 for which the appellant obtained registration were never used in the manner contemplated by the 1958 Act for almost 30 years and that would show the mala fide intention of the appellant in having the same registered for the purpose of squatting and trafficking. 23. Learned counsel for the first respondent further argued that `Infosys' is not an invented or a coined word; the said word is an abbreviation and combination of the words `information system'; the word `Infosys' has been used by various companies abroad as well as within India prior to incorporation of the appellant itself and hence cannot be called an invented word. In this regard, he relied upon a decision of the Madras High Court in Nestle's Products (India) Ltd. v. P. Thankaraja & Anr.12. He submitted that appellant is primarily in service industry which is unregistrable under the 1958 Act and since the appellant is not trading in the goods in respect of which it is registered, it cannot be said that the mark of the appellant is distinctive of its goods. In any case, learned counsel would submit that the expression `Infosys' is not descriptive expression. 24. Insofar as discretion exercised by IPAB in ordering removal of the appellant's registrations from the register under Section 46(1)(b) of the 1958 Act is concerned, learned counsel for the first respondent submitted that this Court should not overturn the discretion so exercised by the IPAB keeping in view the dishonest and fraudulent conduct of the appellant. Lastly, he submitted that although no cross objections or cross appeal has been filed, the first AIR 1978 Mad 336 respondent has some grievance with regard to the order of the IPAB in not considering the case set up in the rectification/removal applications particularly with regard to Section 56 of the 1958 Act. 25. Having regard to the order that we intend to make, we are not persuaded to accept the objection raised on behalf of the first respondent that present appeal preferred directly before this Court from the impugned order passed by the IPAB is not maintainable and must be dismissed as such. Pertinently, the notice was issued in the petitions for special leave to appeal to the respondents on November 1, 2004. In response to the said notice the first respondent filed counter affidavit before this Court on March 11, 2005 wherein no specific objection about invocation of jurisdiction of this Court directly has been taken. In the counter affidavit a very vague objection in the following terms was raised: \"that the present petition apart from being false and misconceived lacks the necessary jurisdiction, hence deserves outright rejection.\" We are afraid, this is hardly an objection about maintainability. Apart from it, on September 12, 2005 after hearing both parties, special leave was granted by this Court. In the backdrop of these peculiar facts, in our view, it is not appropriate to relegate the appellant at this distance of time to challenge the impugned order passed by the IPAB in writ petition before the High Court. The objection about maintainability of the appeals is, accordingly, overruled. 26. The moot question which has been debated before us is whether or not, the first respondent is an aggrieved person. That the first respondent filed composite applications under Sections 46 and 56 of the 1958 Act for rectification/removal of the trade mark `Infosys' registered in Classes 7, 9 and 16 is not in dispute. Sections 46 and 56 read as follows : \"S. 46. Removal from register and imposition of limitations on ground of non-use.--(1) Subject to the provisions of section 47, a registered trade mark may be taken off the register in respect of any of the goods in respect of which it is registered on application made in the prescribed manner to a High Court or to the Registrar by any person aggrieved on the ground either-- (a) that the trade mark was registered without any bona fide intention on the part of the applicant for registration that it should be used in relation to those goods by him or, in a case to which the provisions of section 45 apply, by the company concerned, and that there has, in fact, been no bona fide use of the trade mark in relation to those goods by any proprietor thereof for the time being up to a date one month before the date of the application; or (b) that up to a date one month before the date of the application, a continuous period of five years or longer had elapsed during which the trade mark was registered and during which there was no bona fide use thereof in relation to those goods by any proprietor thereof for the time being: Provided that, except where the applicant has been permitted under sub-section (3) of section 12 to register an identical or nearly resembling trade mark in respect of the goods in question or where the tribunal is of opinion that he might properly be permitted so to register such a trade mark, the tribunal may refuse an application under clause (a) or clause (b) in relation to any goods, if it is shown that there has been, before the relevant date or during the relevant period, as the case may be, bona fide use of the trade mark by any proprietor thereof for the time being in relation to goods of the same description, being goods in respect of which the trade mark is registered. (2) Where in relation to any goods in respect of which a trade mark is registered-- (a) the circumstances referred to in clause (1) of sub- section (1) are shown to exist so far as regards non- use of the trade mark in relation to goods to be sold, or otherwise traded in, in a particular place in India (otherwise than for export from India), or in relation to goods to be exported to a particular market outside India; and (b) a person has been permitted under sub- section (3) of section 12 to register an identical or nearly resembling trade mark in respect of those goods under a registration extending to use in relation to goods to be so sold, or otherwise traded in, or in relation to goods to be so exported, or the tribunal is of opinion that he might properly be permitted so to register such a trade mark, on application by that person in the prescribed manner to a High Court or to the Registrar, the tribunal may impose on the registration of the first-mentioned trade mark such limitations as it thinks proper for securing that that registration shall cease to extend to such use. (3) An applicant shall not be entitled to rely for the purpose of clause (b) of sub-section (1) or for the purposes of sub-section (2) on any non-use of a trade mark which is shown to have been due to special circumstances in the trade and not to any intention to abandon or not to use the trade mark in relation to the goods to which the application relates.\" \"S. 56. Power to cancel or vary registration and to rectify the register.--(1) On application made in the prescribed manner to a High Court or to the Registrar by any person aggrieved, the tribunal may make such order as it may think fit for cancelling or varying the registration of a trade mark on the ground of any contravention, or failure to observe a condition entered on the register in relation thereto. (2) Any person aggrieved by the absence or omission from the register of any entry, or by any entry made in the register without sufficient cause, or by any entry wrongly remaining on the register, or by any error or defect in any entry in the register, may apply in the prescribed manner to a High Court or to the Registrar, and the tribunal may make such order for making, expunging or varying the entry as it may think fit. (3) The tribunal may in any proceeding under this section decide any question that may be necessary or expedient to decide in connection with the rectification of the register. (4) The tribunal, of its own motion, may, after giving notice in the prescribed manner to the parties concerned and after giving them an opportunity of being heard, make any order referred to in sub-section (1) or sub-section (2). (5) Any order of the High Court rectifying the register shall direct that notice of the rectification shall be served upon the Registrar in the prescribed manner who shall upon receipt of such notice rectify the register accordingly. (6) The power to rectify the register conferred by this section shall include the power to remove a trade mark registered in Part A of the register to Part B of the register.\" 27. The position that emerges from the above provisions is this. Whether the application is under Section 46 or under Section 56 or a composite application under both Sections, it is a pre-requisite that the applicant must be a person aggrieved. Section 46(1) of the 1958 Act enables any person aggrieved to apply for removal of registered trade mark from the register on the ground of non use as stated in Clause (a) and/or Clause (b). To be an aggrieved person under Section 46, he must be one whose interest is affected in some possible way; it must not be a fanciful suggestion of grievance. A likelihood of some injury or damage to the applicant by such trade mark remaining on the register may meet the test of locus standi. In Kerly's Law of Trade Marks and Trade Names (11th edition) at page 166, the legal position with regard to `person aggrieved' has been summarized thus : The persons who are aggrieved are all persons who are in some way or the other substantially interested in having the mark removed - where it is a question of removal - from the register; including all persons who would be substantially damaged if the mark remained, and all trade rivals over whom an advantage was gained by a trader who was getting the benefit of a registered trade mark to which he was not entitled. We accept the above statement of law. 28. Insofar as Section 56 is concerned, it provides for varying situations in which the person aggrieved may apply for rectification of the registered trade mark from the register. Although both Sections, namely, Sections 46 and 56 require `person aggrieved' to apply for removal of the registered trade mark from the register or rectification of a trade mark in the register, the expression `person aggrieved' for the purposes of these two Sections has different connotations. The interpretation of the expression `person aggrieved' occurring in Sections 46 and 56 has come up for consideration before this Court on more than one occasion. In Hardie Trading Ltd.1, this Court stated as follows: \"30. The phrase \"person aggrieved\" is a common enough statutory precondition for a valid complaint or appeal. The phrase has been variously construed depending on the context in which it occurs. Three sections viz. Sections 46, 56 and 69 of the Act contain the phrase. Section 46 deals with the removal of a registered trade mark from the Register on the ground of non-use. This section presupposes that the registration which was validly made is liable to be taken off by subsequent non-user. Section 56 on the other hand deals with situations where the initial registration should not have been or was incorrectly made. The situations covered by this section include: (a) the contravention or failure to observe a condition for registration; (b) the absence of an entry; (c) an entry made without sufficient cause; (d) a wrong entry; and (e) any error or defect in the entry. Such type of actions are commenced for the \"purity of the Register\" which it is in public interest to maintain. Applications under Sections 46 and 56 may be made to the Registrar who is competent to grant the relief. \"Persons aggrieved\" may also apply for cancellation or varying an entry in the Register relating to a certification trade mark to the Central Government in certain circumstances. Since we are not concerned with a certification trade mark, the process for registration of which is entirely different, we may exclude the interpretation of the phrase \"person aggrieved\" occurring in Section 69 from consideration for the purposes of this judgment. 31. In our opinion the phrase \"person aggrieved\" for the purposes of removal on the ground of non-use under Section 46 has a different connotation from the phrase used in Section 56 for cancelling or expunging or varying an entry wrongly made or remaining in the Register. 32. In the latter case the locus standi would be ascertained liberally, since it would not only be against the interest of other persons carrying on the same trade but also in the interest of the public to have such wrongful entry removed. It was in this sense that the House of Lords defined \"person aggrieved\" in the matter of Powell's Trade Mark: \"... although they were no doubt inserted to prevent officious interference by those who had no interest at all in the register being correct, and to exclude a mere common informer, it is undoubtedly of public interest that they should not be unduly limited, inasmuch as it is a public mischief that there should remain upon the register a mark which ought not to be there, and by which many persons may be affected, who, nevertheless, would not be willing to enter upon the risk and expense of litigation. Whenever it can be shown, as here, that the applicant is in the same trade as the person who has registered the trade mark, and wherever the trade mark, if remaining on the register, would, or might, limit the legal rights of the applicant, so that by reason of the existence of the entry on the register he could not lawfully do that which, but for the existence of the mark upon the register, he could lawfully do, it appears to me he has a locus standi to be heard as a person aggrieved.\" 33. But if the ground for rectification is merely based on non- user i.e. under Section 46 of the Act, that is not really on account of any public mischief by way of an incorrect entry. The non-user does not by itself render the entry incorrect but it gives a right to a person whose interest is affected to apply for its removal. An applicant must therefore show that \"in some possible way he may be damaged or injured if the trade mark is allowed to stand; and by `possible' I mean possible in a practical sense, and not merely in a fantastic view.... All cases of this kind, where the original registration is not illegal or improper, ought to be considered as questions of common sense, to a certain extent, at any rate; and I think the applicants ought to show something approaching a sufficient or proper reason for applying to have the trade mark expunged. It certainly is not sufficient reason that they are at loggerheads with the respondents or desire in some way to injure them\". 34. Addisons' application was one under Section 46 and the test to determine whether the applicant was a \"person aggrieved\" within the meaning of that section should have been the one laid down by Romer, J. in Wright case and not the one propounded by the House of Lords in the matter of Powell's Trade Mark. The High Court and the Joint Registrar fell into error in not drawing this distinction. However, it is not necessary to dilate on this aspect of the matter as the appellant has really argued on the second and third aspects of Section 46 viz. the alleged non-use of the trade marks by Hardie and special circumstances\". 29. In the case of Hardie Trading Ltd.1, this Court approved the test applied by Romer, J. in The Royal Baking Powder Company v. Wright, Crossley, and Co.13, which has been reproduced in para 33 of the report. We respectfully agree. 30. Hardie Trading Ltd.1 has been followed by this Court in a recent decision in the case of Kabushiki Kaisha Toshiba2. This Court (1898) 15 RPC 677 stated that Section 46 speaks for private interest while Section 56 speaks of a public interest. 31. It is true that the appellant in opposition to the applications for removal/rectification of trade mark did not specifically challenge in its counter affidavits the locus standi of the first respondent to be heard as a person aggrieved. Obviously, in the absence of any specific objection by the appellant to that effect, no specific issue was framed by the High Court whether the applicant was an aggrieved person. The applications having been transferred to the IPAB in terms of Section 100 of the 1999 Act, the IPAB examined the matter in light of the issues that were framed by the High Court although in the written submissions before it, the objection was raised that the first respondent has ceased to have locus standi in view of the subsequent events, particularly change of the name of the first respondent from Jupiter Infosys Ltd. to Jupiter International Ltd. The question is, whether in these circumstances it was incumbent upon the IPAB to consider and satisfy itself about the locus standi of the first respondent to be heard as a person aggrieved. In our considered view, it was. In the first place, when the first respondent applied for rectification/removal in respect of three registrations in Classes 7, 9 and 16, it must have shown in respect of each of them that it is a `person aggrieved' and the IPAB must have separately considered in respect of each registration the locus standi of the first respondent as the considerations for each entry might not have been common. Secondly, and more importantly, during the pendency of the applications, certain events had taken place which had some bearing on the question of locus standi of the first respondent insofar as invocation of Section 46 (1) of the 1958 Act is concerned. In the affidavit filed by the first respondent on July 14, 2004 before the Court of Additional District Judge, Delhi an unequivocal and categorical statement has been made that now there is no dispute between the plaintiff (appellant herein) and defendant (first respondent herein) under the Trade Mark and that defendant has already changed the Trade Mark namely \"Jupiter International Ltd.\" in place of \"Jupiter Infosys Ltd.\" 32. In terms of Section 46(1), not only that the applicant has to show that he is an aggrieved person as his interest is being affected but the IPAB must also be satisfied, before it directs the removal of registered trade mark, that the applicant is an aggrieved person before it invokes the power in directing the removal of the registered trade mark. This is so because the pre-requisite for exercise of power under Section 46(1) is that the applicant is a person aggrieved. 33. The question then arises, whether it is sufficient for the applicant to show that he is a person aggrieved when he makes his application or he must continue to remain a person aggrieved until such time as the rectification/removal application is finally decided. In our view, the grievance of the applicant when he invokes Section 46(1) must not only be taken to have existed on the date of making application but must continue to exist when such application is decided. If during the pendency of such application, the applicant's cause of complaint does not survive or his grievance does not subsist due to his own action or the applicant has waived his right or he has lost his interest for any other reason, there may not be any justification for rectification as the registered trade mark cannot be said to operate prejudicially to his interest. In re Apollinaris Company's Trade-Marks14, while dealing with this aspect, Kekemich,J. stated : \".....because that is a remedy given to the person aggrieved through the interposition of the Court for the benefit of the (1891) 2 Ch. 186 applicant, and if at the date of the trial he has no cause of complaint it seems to be monstrous to suppose that the Court will rectify the register at his instance when it can do him no good to rectify, and when the retention on the register can do him no harm merely because at the date of his application he may have had some grievance.\" We concur with the above statement. 34. In the circumstances, we are satisfied that the applications made by the first respondent for rectification/removal of the subject trade marks from the register need to be considered afresh by the IPAB in accordance with law and the observations made above. Since the first respondent has also grievance in connection with the impugned order particularly with regard to non- consideration of its case under Section 56 of the 1958 Act, we refrain from going into the merits of the diverse contentions raised before us and leave the parties to agitate these contentions before the IPAB. 35. In view of the above, these appeals are allowed in part and the impugned order dated September 9, 2004 is set aside. The applications being TRA Nos. 25 to 27 of 2003 (OP Nos. 764 to 766 of 2001) are restored to the file of Intellectual Property Appellate Board, Chennai for hearing and disposal afresh in accordance with law. The parties shall bear their own costs. .................... J. (Aftab Alam) .................... J. (R.M. Lodha) NEW DELHI, NOVEMBER 9, 2010.",
        "1389243": "REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL No. 6690 OF 2008 [Arising out of S.L.P. (C) No.21315 of 2006] Mukul Saikia & Ors. ..... Appellants Versus State of Assam & Ors. ..... Respondents JUDGMENT Lokeshwar Singh Panta, J. 1. Leave granted. 2. This appeal is directed against the common judgment and order dated 15.09.2006 passed by a Division Bench of the High Court of Gauhati, dismissing Writ Appeal Nos. 471/2003 and 08/2005 filed by the appellants herein against the common judgment and order dated 14.08.2003 of the learned Single Judge in WP (C) No. 2026/2001, WP (C) No.2036/2001 and WP (C) No.4932/2001 whereby the learned Single Judge has dismissed the said writ petitions. 3. Briefly stated the facts of the case are as follows:- The Assam Public Service Commission (hereinafter referred to as \"APSC\") had issued an advertisement dated 19.08.1997 for filling up 27 posts of Child Development Project Officer (hereinafter referred to as \"CDPOs\"), pursuant whereupon a selection process was held. Finally, a select list dated 17.07.2000 containing the names of 64 candidates far in excess of the notified vacancies was prepared and published by the APSC. The names of the appellants who are 13 in number before this Court appeared in the select list below 27 persons who were appointed on merit by the State Government. 4. The appellants filed two separate writ petitions before the High Court of Gauhati, inter alia, challenging the Cabinet Memorandum dated 16.06.2000 circulated by the Commissioner and Secretary, Government of Assam, Social Welfare Department under Rule 17 of the Assam Rules of Executive Business relating to the regularization of 18 CDPOs/ Probation Officers who were appointed under Regulation 3 (f) of the Assam Public Service Commission (Limitation of Function) Regulation, 1951 (for short \"Regulation 1951\") and praying for a direction to the State- respondent to appoint the appellants in the vacant/newly created posts of CDPOs/ Probation Officers. The appellants also challenged the policy decision taken by the State to regularize the services of the private respondents herein, who were initially appointed temporarily under Regulation 3 (f) of Regulation of 1951 and could not succeed in the selection process conducted by the APSC. The appellants contended before the High Court that giving benefit of regularization of service to the private respondents to the posts of CDPOs was contrary to the recruitment rules and the action of the State Government would amount to giving backdoor entry to the unsuccessful candidates into the State Services. 5. The stand of the respondent-State before the High Court was that 27 advertised vacant posts meant for direct recruitment quota, were filled up by the State Government on merits out of the select list prepared by the APSC dated 17.07.2000. The select list having thus exhausted, the appellants, whose names figured below the 27 selected candidates in the select list, therefore, could not claim to be appointed in excess of the advertised vacancies of CDPOs; and that if any future vacancies which arose after the publication of the advertisement, were to be filled up out of the left out candidates of the select list, the said appointment would amount to depriving other persons who, in the meantime, would have become eligible for selection and appointment. It was also submitted that as soon as the posts advertised were filled up or the validity of the select list expired, whichever event was earlier in point of time, the candidates whose names appeared in the select list could not thereafter claim appointment as the select list got exhausted. It was stated that the appellants have neither challenged the policy decision taken by the Government on the basis of the Cabinet decision nor the Notification issued pursuant thereto by the State Government regularising the service of 18 CDPOs/ Probation Officers. It was also stated that the decision to regularize 18 CDPOs, who were initially appointed under Regulation 3 (f) of Regulation, 1951, was taken by the State in view of the fact that they had already rendered more than four years of service satisfactorily and their continuation in service was necessary to implement the time-bound scheme of the Government of India for which ICDS Project was created in the State of Assam. It was categorically stated that 18 CDPOs were regularized by the State Government to the posts meant for promotees. 6. The stand of the private respondents-appointees was that 27 advertised vacancies were filled up by the State Government on the basis of merit list prepared by the APSC on 17.07.2000 and as soon as those vacancies were filled up against the direct quota, the select list got exhausted. They stated that the appellants could not, as a matter of right, claim that they shall be appointed against the unadvertised future vacancies, merely because their names are found in the select list prepared by APSC. The respondents-appointees submitted that since they were not regularized against the posts advertised by the APSC by means of advertisement dated 19.08.1997, the appellants could not claim that they should be appointed against those posts pursuant to their selection when 18 vacancies in the cadre of CDPOs were meant to be filled up by way of promotion. They submitted that the decision to regularize their services was taken by the State Government by giving relaxation as contemplated under Clause 11 of the Assam Social Welfare (Recruitment and Promotion) Service Order, 1994 (for short \"the Service Order, 1994) and the said decision in fact has not been challenged by the appellants/original writ petitioners either in the writ petitions or in the writ appeals filed by them before the High Court. 7. The learned Single Judge of the High Court dismissed the writ petitions of the appellants, inter alia, holding that no posts beyond 27 advertised vacancies could be filled up from the select list and the appellants had challenged only the Cabinet Memorandum dated 16.06.2000 without challenging the Cabinet decision taken on 13.10.2000 followed by the Notification dated 16.11.2000 issued by the State Government whereby the services of the private respondents came to be regularized. 8. Being aggrieved thereby, the appellants filed the above- said two writ appeals (being WP(C) 471/2003 and WP (C) 08/2005) which have been dismissed by the Division Bench by common judgment and order dated 15.09.2006. Now, all the appellants have preferred this single appeal challenging the impugned order of the High Court. 9. On notice issued by this Court, Shri Joydeep Shukla, Extra Assistant Commissioner, Government of Assam, has filed affidavit stating, inter alia, that the private respondents have rendered highly satisfactory and dedicated service in implementation of time-bound Integrated Child Development Scheme Projects (ICDS) ever since they joined the services and their retention in service would also be highly beneficial to the interest of the Project as well as the public at large. It is stated that at the relevant point of time, there were 18 vacant posts of CDPOs in the promotional category and another 10 additional vacancies meant for the promotees had also arisen thereby making a total number of 28 vacancies meant to be filled up by promoting departmental candidates as per the requirement of Service Order, 1994. It is stated that the private respondents submitted representations to the authorities praying for regularization of their services which was duly considered by the Department of Social Welfare, Government of Assam and taking into consideration the interest of ICDS Projects, it was decided that regular absorption of the private respondents against the promotional posts of CDPOs was in the best interest of the Projects which are funded by the Central Government in the State for the welfare of the general public. It is stated that a Cabinet Memorandum dated 16.06.2000 was circulated under Rule 17 of the Assam Rules of Executive Business, after obtaining the approval of the Personnel (B) Department of the State of Assam for regularizing the services of the private respondents in the exceptional circumstances of the matter against 28 available vacancies meant for promotees by invoking power of Rule 11 of the Service Order, 1994. On the basis of the Cabinet Memorandum dated 16.06.2000, a Cabinet decision was taken on 13.10.2000 granting approval of regularization of services of the respondents. The respondent-State also submitted that the appellants have not challenged the one- time policy decision taken by the Cabinet nor the Notification dated 16.11.2000 issued pursuant to the Cabinet decision regularizing the services of the private respondents have been challenged by the appellants before the learned Single Judge or the Division Bench of the High Court and the High Court has rightly dismissed the writ petition and appeals of the appellants, inter alia, on the grounds that the appellants have no enforceable right to get appointments to the posts of CDPOs against promotional quota merely because their names had figured in the select list prepared by the APSC against the direct quota. 10. The private respondents, in their counter affidavit filed before this Court have stated that total number of notified vacancies of CDPOs were only 27, yet a select list dated 17.07.2000 was published by the APSC wherein as many as 64 candidates were recommended. In order of merit, 27 selectees were appointed out of whom 17 were appointed in the general quota and 10 from the reserved category as per the rules. The names of the appellants appeared below 27 candidates who have been appointed; therefore, the appellants have no legal right to claim appointment against the excess quota of the advertised vacancies. The Secretary to the Government of Assam, Personnel (B) Department by circular bearing No. 98/4 dated 18.12.1998 had requested the APSC to recommend the candidates equal to the number of vacancies notified in the advertisement. The contesting respondents stated that in the year 1996-97, there were total number of 45 vacant posts of CDPOs and allied cadre in the Department of Social Welfare including the backlog vacancies and as per Service Order, 1994, 60 per cent of the vacancies are required to be filled up by way of direct recruitment and the remaining 40 per cent by means of promotion of suitable departmental candidates. Accordingly, only 27 (60 per cent) vacancies of CDPOs were available at the time of issuing the advertisement notice dated 19.08.1997 for which selection was made by the APSC and on the basis of merit, 27 vacancies were filled up by the State Government after complying with the provisions of the rules including the reservation in favour of SCs/STs/OBCs. The remaining 18 vacancies being 40 per cent of total 45 vacancies were to be filled up by eligible departmental candidates. In addition thereto, 10 more vacancies were also available to be filled up by way of promotion thereby making 28 total number of vacancies. The State Government regularized the services of private respondents against 18 vacancies in the cadre of CDPOs which were meant to be filled up by way of promotion from departmental candidates and as such, the appellants who had applied against direct quota have no legitimate right to be selected and appointed against promotees quota. 11. The private respondents also submitted that they have been regularized on the basis of the Cabinet decision dated 13.10.2000 and Notification dated 16.11.2000 in deference to Rule 11 of the Service Order, 1994. They submitted that there was an urgent need on the part of the Department to fill up all the vacant posts for the purpose of proper and effective implementation of the time-bound Projects of the State. It is stated that, in view of the long services rendered by the private respondents and having due regard to their past satisfactory performance and also the service record, they have been regularized against those promotional vacancies, purely in the interest of the public. It is also submitted that subsequently by Notification No. 59 PSC/DR-41/1/2005-06 dated 20.04.2006, the APSC has also conveyed its approval to the regularization of the respondents' services. They have stated that the procedure for regularization of the respondents' services was a one-time measure adopted by the State Government in the special circumstances and their regularization has not, in any manner, caused any prejudice to the interest of the appellants. The respondents also stated that the appellants have not challenged the Cabinet Decision dated 13.10.2000 and subsequent Notification dated 16.11.2000 issued by the State Government in the writ petitions filed by them nor they have challenged the same before the Division Bench of the High Court. In that view of the matter, the private respondents submitted that the appellants had no locus standi to file the writ petitions under Article 226 of the Constitution of India. 12. We have heard learned counsel for the parties. Mr. A.K. Ganguly, learned senior counsel appearing for the appellants, submitted that the private respondents were appointed in the year 1995-96 only for four months on ad hoc basis in terms of Regulation 3(f) of Regulation 1951, or till regular appointments in accordance with the preference and recommendations were made by the APSC under the Service Order, 1994, as such their continuance on ad hoc basis was de hors the rules and they are illegally regularized on 16.11.2000 after they have put in barely four years of service. He submitted that in identical cases, namely, Pranjit Kumar Das v. State of Assam & Ors. (1995) 1 GLR 229 and Dr. Anoop Kumar Das v. Dr. Sanjib Kakati & Ors. (2000) 2 GLR 479, the Gauhati High Court has held that any appointment under Regulation 3 (f) of Regulation 1951 is ad hoc in nature and de hors the rules, and therefore, could not be sustained. He submitted that the Cabinet decision in regard to the regularization of the private respondents was in disregard to the binding law as laid down in the above cited decisions. He submitted that the appellants who were duly selected by the APSC could have been appointed against the vacancies which subsequently arose in excess of 27 advertised posts. In support of this submission, reliance is placed on decisions in Virender Singh Hooda v. State of Haryana and Anr. [1999 (3) SCC 696], Suvidya Yadav & Ors. v. State of Haryana & Ors. [(2002) 10 SCC 299] and Sandeep Singh v. State of Haryana & Anr. [2002 (10) SCC 549]. Lastly, it was contended that the regularization of the service of private respondents to the posts of CDPOs after they remained unsuccessful in the test held by the APSC is in violation of Articles 14 and 16 of the Constitution of India as well as in derogation of the law laid down by a Constitution Bench of this Court in Secretary, State of Karnataka and Ors v. Uma Devi & Ors. [(2006) 4 SCC 1]. 13. While refuting the submissions of the appellants, Mr. P.P. Rao, learned senior counsel for the State, on the other hand, submitted that the posts in which the private respondents were regularized were promotional posts to be filled up by promotion from amongst the persons who have rendered 10 years' continuous service in the feeder cadre and the appellants cannot have any claim to be considered for appointment against promotional quota. He submitted that all the 27 advertised posts have been filled up on the basis of the select list prepared by the APSC and the appellants cannot have any right to claim appointment against the anticipated vacancies which were never advertised and they have a right to be considered along with other eligible candidates as and when posts are advertised for direct recruitment. He then contended that when the regularization of the private respondents took place in the year 2000, the law declared by this Court in State of Haryana v. Piara Singh [(1992) 4 SCC 118], was holding the field, which required the State Government to regularize the services of ad hoc employees who have put in a few years of continuous service. He submitted that the law laid down by a Constitution Bench of this Court in Secretary, State of Karnataka's case (supra) relied upon by the appellants in support of their case will be of no help and assistance to the appellants as in the said decision, this Court has clarified that the regularization, if any, already made, but not sub judice, need not be re-opened on the basis of the judgment. 14. Mr. P.S. Patwalia, learned senior counsel, appearing on behalf of the private respondents in addition to the submission of Mr. P.P. Rao, learned senior counsel, submitted that the appellants have no right that can be enforced in the present proceedings, particularly, in view of the fact that admittedly their names appeared in the select list dated 17.07.2000 below the persons who have been appointed against the 27 vacancies. He submitted that the Rules applicable to the present case do not permit inclusion of more number of candidates in the select list in excess of the notified vacancies. In support of this submission, reference is made to the decisions of this Court in Madan Lal v. State of J & K & Ors. [(1995) 3 SCC 486], Shri Kant Tripathy & Ors. v. State of U.P. & Ors. [(2001) 10 SCC 237], State of U.P. & Ors. v. Raj Kumar Sharma & Ors. [(2006) 3 SCC 330] and Prem Singh v. Haryana State Electricity Board [1996 (4) SCC 319]. He submitted that the appellants have no locus standi to file the writ petition under Article 226 of the Constitution of India before the High Court as the private respondents would stand on a completely different footing as compared to the appellants. It was also submitted that the decision to regularize the services of the private respondents was taken by the Cabinet in its meeting dated 13.10.2000 pursuant whereupon separate Notification dated 16.11.2000 was issued by the State Government regularizing their services in deference to Rule 11 of Service Order, 1994 by relaxing the rules. It was then contended that the Cabinet decision as well as the subsequent Notification of the State Government have not been challenged in the writ proceedings, the High Court has rightly dismissed the writ petition and the appeals of the appellants. 15. At the outset it should be noticed that the select list prepared by APSC could be used to fill the notified vacancies and not future vacancies. If the requisition and advertisement was only for 27 posts, the State cannot appoint more than the number of posts advertised, even though APSC had prepared a select list of 64 candidates. The selection list got exhausted when all the 27 posts were filled. Thereafter, the candidates below the 27 appointed candidates have no right to claim appointment to any vacancy in regard to which selection was not held. The fact that evidently and admittedly the names of the appellants appeared in the select list dated 17.07.2000 below the persons who have been appointed on merit against the said 27 vacancies, and as such they could not have been appointed in excess of the number of posts advertised as the currency of select list had expired as soon as the number of posts advertised are filled up, therefore, appointments beyond the number of posts advertised would amount to filling up future vacancies meant for direct candidates in violation of quota rules. Therefore, the appellants are not entitled to claim any relief for themselves. The question that remains for consideration is whether there is any ground for challenging the regularization of the private respondents. 16. At the time of issuing the advertisement dated 19.08.1997, the total number of vacancies available in the cadre of CDPOs in the year 1996-97 was 45 out of which 27 vacancies, being 60 per cent of the total number of vacancies were available for being filled up by way of direct recruitment as per Service Order, 1994. The Joint Secretary, Personnel (B) Department, circulated the Cabinet Memorandum under Rule 17 of the Assam Rules of Executive Business. It was made clear in the said Cabinet Memorandum that the private respondents could not pass the APSC written examination, but they have gathered sufficient experience under Social Welfare Department and the performance of the officers was also found satisfactory. It was stated that their services were not terminated and they were allowed to continue in their respective posts and in the interest of the public service, the State Government had decided to regularize their services and to absorb them under Social Welfare Department against posts held by them. The Commissioner and Secretary to the Government of Assam, Social Welfare Department on 16.06.2000, concurring with the proposal of Joint Secretary, Personnel (B) Department, as a special case sought the approval of the Cabinet for regularization of appointment of 18 CDPOs/Superintendents/ Home Probation Officers who were appointed in terms of Regulation 3 (f) of APSC and in accordance with the method as provided in Clause 5(c) by invoking discretion of relaxation under Clause 11 of Service Order, 1994. The Cabinet in the meeting held on 13.10.2000, decided to regularize the services of the private respondents in the special circumstances that they have been working against the posts of CDPOs for the last more than four years and their performance was found satisfactory and their continuity in the existing posts was also needed for effective implementation of the time-bound scheme of the Government of India for which ICDS Projects were provided in the State of Assam. Pursuant to the Cabinet decision, Notification No. SWD 34/99/104 dated 16.11.2000 was issued by the Commissioner and Secretary to the Government of Assam, Social Welfare Department by which the services of the appellants were ordered to be regularized with effect from the date of their joining the Social Welfare Department. Indisputably, the appellants have challenged only the Cabinet Memorandum dated 16.06.2000 in the writ petition before the High Court while the Cabinet decision dated 13.10.2000 was taken on the basis of the said Memorandum and the subsequent Notification regularizing the services of the appellants issued by the State Government on 16.11.2000 had remained unchallenged. The Cabinet took the decision dated 13.10.2000 in exercise of the powers under Rule 17 of the Assam Executive Business Rules which was subsequently notified by the State Government on 16.11.2000 as a one-time measure to regularize the services of the private respondents. It appears that the appellants were not serious in regard to challenging the regularization of the private respondents but were only interested in pursuing their own claim for appointment as CDPOs against the vacancies reserved for direct quota. In the circumstances and the facts of the present case, the appellant cannot maintain any claim whatsoever in respect of the 18 vacancies of CDPOs against which the private respondents were regularized. The appellants and the private respondents stand on a completely different footing. The services of the private respondents have been regularized against the vacancies meant for promotees and the source of legal right of the appellants and the private respondents being from two different and distinct sources, their relative rights cannot be compared with each other and, therefore, there cannot be any violation of fundamental rights under Article 14 of the Constitution of India as a consequence of the regularization of the services of the respondents. 17. We have gone through the Service Order, 1994 issued by the Government of Assam, Social Welfare Department dated 01.08.1994. Clause 3 of the Service Order classifies the class and cadre of the services. The post of Child Development Project Officer is in Class II cadre. Clause 5 thereof envisages method of recruitment and promotion. The relevant portion of Clause 5 reads as under:- \"5 Recruitment to the Cadre of the service shall be made in the following manners:- (a) xxx xxx xxx (b) xxx xxx xxx (c) In the order of District SWO/ CDPO/ Special Home/ Principal Balbhawan VTRC/ Probationary Officer/ PWO/ Liaison Officer/ Vice Principal, Jorhat, Blind Institute. The posts shall be filled up by direct recruitment through the Commission as per norms fixed jointly with Ministry of Welfare, Government of India by the Social Welfare Department.\" Clause 11 of the Service Order deals with relaxation. It reads:- \"Where the Governor is satisfied that the operation of any of the provisions of these orders has caused undue hardship in any particular case, he may dispense with or relax the requirement of that provision to such extent and subject to such condition as he may consider necessary for dealing with the case in a just and equitable manner. Provided that the case of any Government servant shall not be dealt with in any manner, less favourable to him than that provided in these orders.\" 18. Annexure-1 attached to Service Order, 1994 contains class of posts, cadre of posts, cadre strength, scale of pay and qualifications & experience for the service. At serial No. 3, in Class II the total cadre strength of CDPOs has been shown as 68 in the pay scale of Rs.1635-3950/-. Column 6 of Annexure I prescribes that 40 per cent of the posts of CDPOs have to be filled up by promotion from amongst the persons who have rendered 10 years of continuous service in the cadre of ACDPOs/Assistant Superintendent Homes and Allied Cadre and 60 per cent by direct recruitment. The private respondents, no doubt, were appointed on ad hoc basis and admittedly they have not completed 10 years of continuous service in the cadre of ACDPOs, but the State of Assam, with the approval of the Cabinet, decided to regularize the services of the appellants as a special case by giving relaxation under para 11 of the Service Order. Therefore, the decision of the Cabinet pursuant whereof the State Government issued Notification cannot be held to be arbitrary and irrational. The appellants fall in different categories and they have no enforceable right to challenge the regularization of the private respondents who have been regularized against the vacancies meant for promotional quota. In their writ petition, they have prayed for their appointment because their names were included in the select list by the APSC against the direct quota. The State Government appointed 27 persons in order of merits out of the select list prepared by the APSC, as such the appellants being selectees cannot claim appointment as a matter of right in excess to the advertised vacancies. It is well settled law that filling up of the vacancies over and above the number of vacancies advertised would be violative of Articles 14 and 16 of the Constitution of India. Mere inclusion of the appellants in the select list of the direct appointees does not confer any right on them to be appointed against the vacancies reserved for promotees. The decision of the Cabinet and the Notification issued by the State Government pursuant thereto in our view, are both in consonance and in conformity with Clause 11 of the Service Order to save the services of the private respondents from being thrown out of the job which otherwise would cause extreme hardship and injury to them and to the members of their families. 19. In the facts and circumstances of the present case, we find that the High Court has rightly held that the appellants do not have any enforceable right of being appointed to the post of CDPOs against the quota meant for promotees and more particularly against the decision of the State Government regularizing the services of the private respondents. The Cabinet decision was taken as a one-time measure having regard to the special circumstances of the case, the satisfactory performance rendered by the private respondents and their past service record which was found to be unblemished by the Government as well as in the exigencies of the Scheme of the Central Government which were to be operationalised in a time-bound manner and also keeping public interest in mind. In these circumstances, the High Court is right in holding that the appellants have no locus standi to challenge the regulation of private respondents against the vacancies meant for the promotional quota the appellants who appeared in the interview held by APSC as direct candidates could not have any grievance against their regularization against 40 per cent promotional posts. 20. In the backdrop of the above stated facts and the relevant provisions of rules, we do not find any error or infirmity in the impugned judgment and order passed by the High Court which would warrant any interference by this Court in this appeal. None of the contentions raised by the appellants merits acceptance. The law laid down by the Constitution Bench of this Court in Uma Devi's case (supra) in the present set of facts and circumstances will be of no help and assistance to the appellants. The decision of the Gauhati High Court in the cases cited at Bar by the learned senior counsel for the appellants will turn on the facts and circumstances of the said cases and the ratio laid down therein cannot be made binding on the peculiar facts of the present case. 21. For the above-stated reasons, the appeal fails and it is accordingly, dismissed. In the facts and circumstances, the parties are left to bear their own costs. ........................................J. (R. V. Raveendran) ........................................J. (Lokeshwar Singh Panta) New Delhi, November 18, 2008.",
        "118956979": "REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL Nos. 843-844 OF 2021 (Arising out of SLP (C) No. 1531-32/ 2021) BHARAT SANCHAR NIGAM LTD. & ANR. \u2026APPELLANTS Versus M/S NORTEL NETWORKS INDIA PVT. LTD. \u2026RESPONDENT J U D G M E N T INDU MALHOTRA, J. Leave granted. 1. The present Appeals raise two important issues for our consideration : (i) the period of limitation for filing an application under Section 11 of the Arbitration and Conciliation Act, 1996 (\u201cthe 1996 Act\u201d); and (ii) whether the Court may refuse to make the reference under Section 11 where the claims are ex facie time-barred? 2. (a) The factual matrix in which the present issues have arisen for our consideration is the issuance of a tender notification by the Appellant- Company [hereinafter referred to as \u201cBSNL\u201d] inviting bids for planning, engineering, supply, insulation, testing and commissioning of GSM based cellular mobile network in the southern region covering the Kerala, Karnataka, Tamil Nadu, Andhra Pradesh Circles, and the Chennai telephone district. In Signature Not Verified Digitally signed by Nidhi Ahuja Date: 2021.03.10 the tender process, the Respondent-Company [hereinafter referred to as 11:17:39 IST Reason: \u201cNortel\u201d] was awarded the purchase order. On completion of the Works under the purchase order, BSNL deducted / withheld an amount of Rs.99,70,93,031 towards liquidated damages and other levies. (b) Nortel vide communication dated 13.05.2014 raised a claim for payment of the said amount. BSNL vide letter dated 04.08.2014 rejected the claim of Nortel. (c) After a period of over 5 \u00bd years, Nortel vide letter dated 29.04.2020 invoked the arbitration clause, and requested for appointment of an independent arbitrator, wherein it was contended that the dispute of withholding the aforesaid amounts, would fall within the ambit of arbitrable disputes under the agreement. (d) BSNL vide reply dated 09.06.2020 contended that the request for appointment of an arbitrator could not be entertained, since the case had already been closed on 04.08.2014, and as per Section 43 of the 1996 Act, the notice invoking arbitration was time barred. (e) Nortel filed an application under Section 11 of the 1996 Act before the Kerala High Court for appointment of an arbitrator. The High Court vide Order dated 13.10.2020 referred the disputes to arbitration. (f) BSNL filed a review petition before the High Court, which was dismissed vide Order dated 14.01.2021. (g) The present Civil Appeal has been filed by BSNL to challenge the Orders dated 13.10.2020 and 14.01.2021 respectively. (h) This Court appointed Mr. Arvind Datar, Senior Advocate as Amicus Curiae to assist the Court on the legal issues which have arisen for consideration. 3. We have heard Mr. R.D. Agrawala, Senior Advocate for the Appellants, Mr. Neeraj Kumar Jain, Senior Advocate for the Respondent, and the learned Amicus Curiae, Mr. Arvind Datar, Senior Advocate. 4. Submissions on behalf of BSNL BSNL submitted that the cause of action for invoking arbitration arose on 04.08.2014 when the claim made by Nortel was rejected by making deductions from the Final Bill. It was contended that Nortel had slept over its alleged rights for over 5 \u00bd years, before issuing the notice of arbitration on 29.04.2020. From 04.08.2014 till 29.04.2020, Nortel did not take any action whatsoever. Consequently, the notice invoking arbitration had become legally stale, non-arbitrable and unenforceable. The High Court had erroneously proceeded on the premise of mere existence of a valid arbitration agreement, without considering that such an agreement was inextricably connected with the existence of a live dispute. Even though limitation was a mixed question of fact and law, and is ordinarily to be decided by the arbitral tribunal, in cases where the invocation of the arbitration agreement is ex facie time barred, the Court must reject the request for appointment of an arbitrator. The limitation for invoking arbitration, and seeking appointment of an arbitrator is at par with a civil action, and would be covered by Article 137 of the Schedule to the Limitation Act, 1963. An action taken by a claimant must necessarily fall within the statutory period of 3 years from the date on which the right to apply accrues. Section 11(6A) uses the phrase \u201cexamination of the existence of an arbitration agreement\u201d, which would imply that the power conferred upon the Court is not a formal exercise, but requires a certain degree of examination before making the reference. 5. Submissions on behalf of Nortel It was submitted that the amendment to Section 11 by the Arbitration and Conciliation (Amendment) Act, 2015 provides for a limited scope of enquiry at the pre-reference stage which is restricted only to the \u201cexistence\u201d of an arbitration agreement under sub-section (6A) of Section 11. In view of the doctrine of kompetenz-kompetenz, the objection with respect to the claims being allegedly time barred, could be decided by the arbitral tribunal. The High Court rightly limited the enquiry at the pre-reference stage to the \u201cexistence\u201d of the arbitration agreement. The distinction between the limitation for filing an application u/S. 11, and with respect to the underlying claims does not survive post the 2015 Amendment, since the role of the Court is only limited to examine the existence of the arbitration agreement between the parties. The starting point of limitation for initiating a proceeding under Section 11 is the expiry of 30 days\u2019 from the date of issuing notice of arbitration on 29.04.2020. The cause of action was, therefore, a continuing one. The High Court had rightly held that the issue of limitation must be decided by the arbitral tribunal. 6. Discussion on First issue The 1996 Act has been framed for expeditious resolution of disputes, and various provisions have been incorporated in the Act to ensure that the arbitral proceedings are conducted in a time-bound manner. Various time lines have been provided in the 1996 Act such as : (i) Section 8 provides that an application for reference of disputes to arbitration, shall be filed not later than submitting the first statement on the substance of the dispute; (ii) Section 9(2) provides that where a Court passes an order for any interim measure of protection, the arbitral proceedings shall be commenced within a period of 90 days\u2019 from the date of such order; (iii) Section 13 provides that where a challenge is made against an arbitrator, the same must be raised within 15 days\u2019 from the constitution of the tribunal, or after becoming aware of any circumstances mentioned in sub-section (3) of Section 12; (iv) Section 16 (2) provides that a plea that the tribunal does not have jurisdiction, shall be raised not later than the submission of the statement of defence; (v) Section 34(3) provides a maximum period of 120 days\u2019 after the receipt of the signed award, to file objections before the Court 1 7. The 1996 Act was amended by the Arbitration and Conciliation (Amendment) Act, 2015 to incorporate further provisions for expeditious disposal of arbitral proceedings : (i) Section 11 has been amended to insert sub-section (13) which provides that an application made either before the Supreme Court, or the High Court, or person or institution designated by such Court, shall be disposed of as expeditiously as possible, and an endeavour shall be made to dispose of the petition within a period of 60 days\u2019 from the date of service of the notice on the opposite party; (ii) Section 29A mandates that the arbitral proceedings must be completed within a period of 12 months from the date of completion of pleadings; (iii) Section 34 was amended to insert sub-section (6) which provides that an application under Section 34 shall be disposed of expeditiously within a period of 1 year from the date on which the notice of filing objections is served upon the other party. 1 Dakshin Haryana Bijli Vitran Nigam Ltd. v. M/s Navigant Technologies Pvt. Ltd., C.A. No. 791 / 2021 decided on 02.03.2021. Some of these provisions have been held to be mandatory, such as Sections 8 and 34(3); while others like Section 34(6) have been held to be directory2. 8. Contemporaneous with the 2015 amendments to the Arbitration Act 1996, the Commercial Courts Act, 2015 was enacted to provide for speedy disposal of high value commercial disputes, which provided for setting up Commercial Divisions or Commercial Appellate Division in High Courts, and Commercial Courts at the district level. Section 13 of the Commercial Courts Act provides that an appeal under Section 37 of the Arbitration Act, 1996 shall be filed before the Commercial Appellate Court or Commercial Appellate Division, as the case may be within a period of 60 days\u2019 from the date of judgment. Section 14 further provides that the Commercial Appellate Court or Commercial Appellate Division shall endeavour to decide the appeals within a period of 6 months\u2019 from the date of filing of such appeal. 9. To decide the issue of limitation for filing an application under Section 11, we must first examine whether the Arbitration Act, 1996 prescribes any period for the same. Section 11 does not prescribe any time period for filing an application under sub-section (6) for appointment of an arbitrator. Since there is no provision in the 1996 Act specifying the period of limitation for filing an application under Section 11, one would have to take recourse to the Limitation Act, 1963, as per Section 43 of the Arbitration Act, which provides that the Limitation Act shall apply to arbitrations, as it applies to proceedings in Court. \u201c43. \u2013 Limitations 2 State of Bihar & Ors. v. Bihar Rajya Bhumi Vikas Bank Samiti (2018) 9 SCC 472. (1) The Limitation Act, 1963 (36 of 1963) shall apply to arbitrations, as it applies to proceedings in Court.\u201d In Consolidated Engineering v. Principal Secretary, Irrigation,3 this Court held that : \u201c45. Learned counsel for the appellant contended that Section 43 of the AC Act makes applicable the provisions of the Limitation Act only to arbitrations, thereby expressing an intent to exclude the application to any proceedings relating to arbitration in a court. The contention of the appellant ignores and overlooks Section 29(2) of the Limitation Act and Section 43(1) of the AC Act. Sub-section (1) of Section 43 of the Act provides that the Limitation Act shall apply to arbitrations as it applies to proceedings in court. The purpose of Section 43 of the AC Act is not to make the Limitation Act inapplicable to proceedings before court, but on the other hand, make the Limitation Act applicable to arbitrations. As already noticed, the Limitation Act applies only to proceedings in court, and but for the express provision in Section 43, the Limitation Act would not have applied to arbitration, as arbitrators are private tribunals and not courts. Section 43 of the AC Act, apart from making the provisions of the Limitation Act, 1963 applicable to arbitrations, reiterates that the Limitation Act applies to proceedings in court. Therefore, the provisions of the Limitation Act, 1963 apply to all proceedings under the AC Act, both in court and in arbitration, except to the extent expressly excluded by the provisions of the AC Act.\u201d (emphasis supplied) 10. Since none of the Articles in the Schedule to the Limitation Act, 1963 provide a time period for filing an application for appointment of an arbitrator under Section 11, it would be covered by the residual provision Article 137 of the Limitation Act, 1963. Article 137 of the Limitation Act, 1963 provides : THIRD DIVISION \u2013 APPLICATIONS Description of application Period of Time from which period limitation begins to run 137. Any other application for which no Three years When the right to apply period of limitation is provided accrues elsewhere in this division 11. It is now fairly well-settled that the limitation for filing an application under Section 11 would arise upon the failure to make the appointment of the arbitrator within a period of 30 days\u2019 from issuance of the notice invoking arbitration. In other words, an application under Section 11 can be filed only after a notice of arbitration in respect of the particular claim(s) / dispute(s) to 3 (2008) 7 SCC 169. be referred to arbitration [as contemplated by Section 21 of the Act] is made, and there is failure to make the appointment. 12. The period of limitation for filing a petition seeking appointment of an arbitrator/s cannot be confused or conflated with the period of limitation applicable to the substantive claims made in the underlying commercial contract. The period of limitation for such claims is prescribed under various Articles of the Limitation Act, 1963. The limitation for deciding the underlying substantive disputes is necessarily distinct from that of filing an application for appointment of an arbitrator. This position was recognized even under Section 20 of the Arbitration Act 1940. Reference may be made to the judgment of this Court in C. Budhraja v. Chairman, Orissa Mining Corporation Ltd.4 wherein it was held that Section 37(3) of the 1940 Act provides that for the purpose of the Limitation Act, an arbitration is deemed to have commenced when one party to the arbitration agreement serves on the other party, a notice requiring the appointment of an arbitrator. Paragraph 26 of this judgment reads as follows : \u201c26. Section 37(3) of the Act provides that for the purpose of the Limitation Act, an arbitration is deemed to have been commenced when one party to the arbitration agreement serves on the other party thereto, a notice requiring the appointment of an arbitrator. Such a notice having been served on 4-6-1980, it has to be seen whether the claims were in time as on that date. If the claims were barred on 4-6-1980, it follows that the claims had to be rejected by the arbitrator on the ground that the claims were barred by limitation. The said period has nothing to do with the period of limitation for filing a petition under Section 8(2) of the Act. Insofar as a petition under Section 8(2) is concerned, the cause of action would arise when the other party fails to comply with the notice invoking arbitration. Therefore, the period of limitation for filing a petition under Section 8(2) seeking appointment of an arbitrator cannot be confused with the period of limitation for making a claim. The decisions of this Court in Major (Retd.) Inder Singh Rekhi v. DDA [(1988) 2 SCC 338] , Panchu Gopal Bose v. Board of Trustees for Port of Calcutta [(1993) 4 SCC 338] and Utkal Commercial Corpn. v. Central Coal Fields Ltd. [(1999) 2 SCC 571] also make this position clear.\u201d 4 (2008) 2 SCC 444. 13. Various High Courts have taken the view that Article 137 of the Limitation Act would be applicable to an application under Section 11 of the Arbitration Act. The question of the applicability of Article 137 to applications under Section 11 of the 1996 Act came up for consideration before the Bombay High Court in Leaf Biotech v. Municipal Corporation Nashik5 wherein it was held that the period of limitation for an application u/S. 11 would be governed by Article 137 of the Limitation Act. Subsequently, in Deepdharshan Builders Pvt. Ltd. v. Saroj6 the Bombay High Court framed the following issue : \u201c(ii) Whether Article 137 of the Schedule to the Limitation Act, 1963 would apply to the arbitration application filed under Section 11(6) of the Arbitration Act and if applies whether Section 5 of the Limitation Act, 1963 would be applicable to this arbitration application and if Section 5 applies to this arbitration application, whether the applicant has made out a sufficient cause for condonation of delay in filing this arbitration application?\u201d The Bombay High Court held that : \u201c42. In my view, since the proceedings under Section 11(6) of the Arbitration Act are required to be filed before the High Court, Article 137 of the Schedule to the Limitation Act, 1963 would apply to such application filed under Section 11(6) of the Arbitration Act. In my view, since Article 137 of the Schedule to the Limitation Act, 1963 would apply to the arbitration application under Section 11(6) of the Arbitration Act, Section 5 of the Limitation Act, 1963 would also apply to the arbitration application filed under Section 11(6) of Arbitration Act 46. It is not in dispute that under Section 20 of the Arbitration Act, 1940, an application was required for taking the arbitration agreement on record and for appointment of an arbitrator in accordance with the arbitration agreement before a Court. Since the said proceedings under Section 20 were required to be filed before an appropriate Court, the provisions of Article 137 of the Limitation Act, 1963 were applicable to such proceedings filed before such appropriate Court. In my view, since the proceedings under Section 11(6) or Section 11(9) of the Arbitration Act for seeking appointment of arbitral tribunal are also now required to be filed before the High Court or the Hon'ble Supreme Court, as the case may be. Article 137 of the Schedule to the Limitation Act, 1963 would apply. It is not in dispute that no other Article of Schedule to the Limitation Act, 1963 provides for any other period of limitation for filing an arbitration application filed under Section 11(6) or Section 11(9) of the Arbitration Act respectively. 47. It is not in dispute that Article 137 of the Schedule to the Limitation Act, 1963, such application has to be filed within three years from the date when the right to apply accrues. In my view, under Article 137 of the Limitation Act, 1963, application 5 2010 (6) Mh LJ 316. 6 (2019) 1 AIR Bom R 249. for appointment of an arbitrator under Section 11(6) or Section 11(9) of the Arbitration Act before the High Court or the Hon'ble Supreme Court would apply from the date when a notice invoking an arbitration agreement is received by other side and other side refuses to the name suggested by the opponent or refusing to suggest any other name in accordance with the provisions of Section 11 or the agreed procedure prescribed in the arbitration agreement within the time contemplated therein or specifically refuses to appoint any arbitrator in the event of such other party being an appointing authority. 48. In my view, the limitation prescribed under Article 137 of the Schedule to the Limitation Act, 1963 which applies to an application under Section 11(6) or Section 11(9) of the Arbitration Act filed before the High Court or before the Hon'ble Supreme Court cannot be mixed up with the period of limitation applicable to the claims prescribed in various other Articles of the Schedule to the Limitation Act, 1963. Both these periods of limitation i.e. one applicable to the claims being made and another being applicable to the application under Section 11(6) or Section 11(9) of the Arbitration Act to which Article 137 of the Schedule to the Limitation Act, 1963 applies, are two different periods of limitation and cannot be made applicable to each other.\u201d The special leave petition (SLP (C) No. 305 / 2019) against the said Judgment was dismissed vide Order dated 16.02.2019. 14. Other decisions of High Courts on the applicability of Article 137 are Prasar Bharti v. Maa Communication7 and Golden Chariot v. Mukesh Panika8 passed by the Delhi High Court. The SLP filed in the case of Golden Chariot was dismissed vide Order dated 31.01.2019 in SLP(C) No. 3658 / 2019. 15. The reasoning in all these judgments seems to be that since an application under Section 11 is to be filed in a court of law, and since no specific Article of the Limitation Act, 1963 applies, the residual Article would become applicable. The effect being that the period of limitation to file an application under Section 11 is 3 years\u2019 from the date of refusal to appoint the arbitrator, or on expiry of 30 days\u2019, whichever is earlier. 16. In Geo Miller & Co. Pvt. Ltd. v. Chairman, Rajasthan Vidyut Utpadan Nigam Ltd.,9 a three-judge bench held that on a reading of sub-sections (1) 7 2010 (115) DRJ 438 (DB). 8 2018 SCC OnLine Del 10050, SLP (C) No. 40627 / 2018 against this decision was dismissed on 31.01.2019. 9 (2020) 14 SCC 643, 649. and (3) of Section 43 of the 1996 Act, the provisions of the Limitation Act, 1963 would be applicable to the Arbitration Act. Paragraph 14 of this judgment reads as : \u201c14. Sections 43(1) and (3) of the 1996 Act are in pari materia with Sections 37(1) and (4) of the 1940 Act. It is well-settled that by virtue of Article 137 of the First Schedule to the Limitation Act, 1963 the limitation period for reference of a dispute to arbitration or for seeking appointment of an arbitrator before a court under the 1940 Act (see State of Orissa v. Damodar Das [State of Orissa v. Damodar Das, (1996) 2 SCC 216] ) as well as the 1996 Act (see Grasim Industries Ltd. v. State of Kerala [Grasim Industries Ltd. v. State of Kerala, (2018) 14 SCC 265 : (2018) 4 SCC (Civ) 612] ) is three years from the date on which the cause of action or the claim which is sought to be arbitrated first arises.\u201d 17. Given the vacuum in the law to provide a period of limitation under Section 11 of the Arbitration and Conciliation 1996, the Courts have taken recourse to the position that the limitation period would be governed by Article 137, which provides a period of 3 years from the date when the right to apply accrues. However, this is an unduly long period for filing an application u/S. 11, since it would defeat the very object of the Act, which provides for expeditious resolution of commercial disputes within a time bound period. The 1996 Act has been amended twice over in 2015 and 2019, to provide for further time limits to ensure that the arbitration proceedings are conducted and concluded expeditiously. Section 29A mandates that the arbitral tribunal will conclude the proceedings within a period of 18 months. In view of the legislative intent, the period of 3 years for filing an application under Section 11 would run contrary to the scheme of the Act. It would be necessary for Parliament to effect an amendment to Section 11, prescribing a specific period of limitation within which a party may move the court for making an application for appointment of the arbitration under Section 11 of the 1996 Act. 18. Applying the aforesaid law to the facts of the present case, we find that the application under Section 11 was filed within the limitation period prescribed under Article 137 of the Limitation Act. Nortel issued the notice of arbitration vide letter dated 29.04.2020, which was rejected by BSNL vide its reply dated 09.06.2020. The application under Section 11 was filed before the High Court on 24.07.2020 i.e. within the period of 3 years of rejection of the request for appointment of the arbitrator. Discussion on Second issue 19. We will now discuss the second issue which has arisen for consideration i.e. whether the Court while exercising jurisdiction under Section 11 is obligated to appoint an arbitrator even in a case where the claims are ex facie time-barred. To determine this issue, we would have to examine the scope of jurisdiction under Section 11 of the Act. Legislative History of Section 11 Pre-amendment position Under the principal Act, the legislative scheme under Section 11 was that if the parties had agreed on a procedure for appointment of the arbitrator, the appointment had to be made in accordance with that procedure. Absent an agreement between the parties, the default power of appointment in a domestic arbitration would be exercised by the Chief Justice of the High Court, or person, or institution, designated by him. In the case of an international commercial arbitration, the default power would be exercised by the Chief Justice of India, or the person, or institution, designated by him 10. The object of conferring the power of appointment on the highest judicial authority was to give credibility to the procedure of appointment. 20. In SBP & Co. v. Patel Engineering Ltd.,11 a seven-Judge constitution bench of this Court considered the scope of Section 11 of the 1996 Act, and held that the scheme of the Act required the Chief Justice, or his designate, to 10 Section 11(9) of the 1996 Act. 11 (2005) 8 SCC 618. decide whether there is an arbitration agreement in terms of Section 7, before exercising the default power for making the appointment of the arbitrator. The scope of power at the pre-reference stage would be as follows: \u201c33. Section 8 of the Arbitration Act, 1940 enabled the court when approached in that behalf to supply an omission. Section 20 of that Act enabled the court to compel the parties to produce the arbitration agreement and then to appoint an arbitrator for adjudicating on the disputes. It may be possible to say that Section 11(6) of the Act combines both the powers. May be, it is more in consonance with Section 8 of the old Act. But to call the power merely as an administrative one, does not appear to be warranted in the context of the relevant provisions of the Act. First of all, the power is conferred not on an administrative authority, but on a judicial authority, the highest judicial authority in the State or in the country. No doubt, such authorities also perform administrative functions. An appointment of an Arbitral Tribunal in terms of Section 11 of the Act, is based on a power derived from a statute and the statute itself prescribes the conditions that should exist for the exercise of that power. In the process of exercise of that power, obviously the parties would have the right of being heard and when the existence of the conditions for the exercise of the power are found on accepting or overruling the contentions of one of the parties it necessarily amounts to an order, judicial in nature, having finality subject to any available judicial challenge as envisaged by the Act or any other statute or the Constitution. Looked at from that point of view also, it seems to be appropriate to hold that the Chief Justice exercises a judicial power while appointing an arbitrator. .. 39. It is necessary to define what exactly the Chief Justice, approached with an application under Section 11 of the Act, is to decide at that stage. Obviously, he has to decide his own jurisdiction in the sense whether the party making the motion has approached the right High Court. He has to decide whether there is an arbitration agreement, as defined in the Act and whether the person who has made the request before him, is a party to such an agreement. It is necessary to indicate that he can also decide the question whether the claim was a dead one; or a long-barred claim that was sought to be resurrected and whether the parties have concluded the transaction by recording satisfaction of their mutual rights and obligations or by receiving the final payment without objection. It may not be possible at that stage, to decide whether a live claim made, is one which comes within the purview of the arbitration clause. It will be appropriate to leave that question to be decided by the Arbitral Tribunal on taking evidence, along with the merits of the claims involved in the arbitration. The Chief Justice has to decide whether the applicant has satisfied the conditions for appointing an arbitrator under Section 11(6) of the Act. For the purpose of taking a decision on these aspects, the Chief Justice can either proceed on the basis of affidavits and the documents produced or take such evidence or get such evidence recorded, as may be necessary. We think that adoption of this procedure in the context of the Act would best serve the purpose sought to be achieved by the Act of expediting the process of arbitration, without too many approaches to the court at various stages of the proceedings before the Arbitral Tribunal. \u2026 47. (iv) The Chief Justice or the Designated Judge will have the right to decide the preliminary aspects as indicated in the earlier part of this judgment. These will be his own jurisdiction to entertain the request, the existence of a valid arbitration agreement, the existence or otherwise of a live claim, the existence of the condition for the exercise of his power and on the qualifications of the arbitrator or arbitrators.\u201d 21. Subsequently, in National Insurance Co. Ltd. v. Boghara Polyfab Pvt. Ltd.,12 the Court classified the preliminary issues to be decided by the Chief Justice of India, / Chief Justice of a High Court, as the case may be, under Section 11, and those which must be decided by the arbitrator, into three categories : (i) issues which the Chief Justice, or his designate are bound to decide are whether the party making the application has approached the appropriate High Court; whether there is an arbitration agreement; and whether the party who has made the application, is a party to the agreement; (ii) issues which the Chief Justice may decide at the threshold are : as to whether the claim is a dead or long-barred claim, or a live claim; whether the parties have concluded the contract / transaction by recording satisfaction of their mutual rights and obligations, or the party has received the final payment without objection; (iii) issues which must be left to the arbitral tribunal to decide are whether the claim made falls within the arbitration clause (for example, a matter which is reserved for final decision pf a departmental authority, and is \u201cexcepted\u201d or excluded from arbitration); merits of the claims involved. 22. In Union of India & Ors. v. Master Construction Co.13 this Court held that the issue whether a discharge voucher, or no claims certificate, or settlement agreement had been obtained by fraud, coercion, duress, or undue influence, must be determined by the appointing authority at the Section 11 stage, when a prima facie determination as to whether such a dispute was raised bonafide and genuine must be made. If the dispute prima facie appears 12 (2009) 1 SCC 267. 13 (2011) 12 SCC 349. to be lacking in credibility, the matter would not be referred to arbitration. A bald plea of fraud, coercion, duress, or undue influence was not sufficient, unless the party who sets up such a plea was able to prima facie establish it, by placing material on record. 23.Post-amendment position The 1996 Act was amended by the Arbitration and Conciliation (Amendment) Act, 2015 which came into force with effect from 23.10.2015. The said amendment was based on the recommendations of the 246 th Report of the Law Commission of India. The 2015 Amendment Act made three significant changes : (i) It replaced the Chief Justice of the High Court as the appointing authority for exercising the default power of appointment in the case of domestic arbitrations, by the concerned High Court; and, in respect of international commercial arbitrations, the default power would be exercised by the Supreme Court, in place of the Chief Justice of India. (ii) It inserted sub-section (6A) and (6B) in Section 11, which reads as : \u201c11. Appointment of arbitrators.\u2013 \u2026 (6A) The Supreme Court, as the case may be, the High Court, while considering any application under sub-section (4) or sub-section (5) or sub-section (6), shall, notwithstanding any judgment, decree or order of any Court, confine to the examination of the existence of an arbitration agreement. (6B) The designation of any person or institution by the Supreme Court, or, as the case may be, the High Court, for the purposes of this section shall not be regarded as a delegation of judicial power by the Supreme Court or the High Court.\u201d Sub-section (6A) by a non-obstante clause provided that notwithstanding any judgment, decree or order of any court, the scope of examination at the Section 11 stage, would be confined to the existence of the arbitration agreement. The effect of the amendment was that if the existence of the arbitration agreement was not in dispute, all other issues would be left for the arbitral tribunal to decide. This was in reinforcement of the doctrine of kompetenz-kompetenz, which empowers the tribunal to rule on its own jurisdiction, including any objections with respect to the validity of the arbitration agreement; and thereby minimize judicial intervention at the pre-reference stage. (iii) Sub-section (6B) was inserted to provide that the designation of any person or institution, by either the Supreme Court or High Court, as the appointing authority under Section 11, would not be regarded as a delegation of judicial power. The amendments to Section 11 were brought in to legislatively overrule the line of judgments including SBP & Co., Boghara Polyfab, Master Construction, etc., which had enlarged the scope of power of the appointing authority to decide various issues at the pre-reference stage. 24. Sub-section (6A) came up for consideration in the case of Duro Felguera SA v. Gangavaram Port Ltd.14, wherein this Court held that the legislative policy was to minimize judicial intervention at the appointment stage. In an application under Section 11, the Court should only look into the existence of the arbitration agreement, before making the reference. Post the 2015 amendments, all that the courts are required to examine is whether an arbitration agreement is in existence \u2014nothing more, nothing less. \u201c48. Section 11(6-A) added by the 2015 Amendment, reads as follows: \u201c11. (6-A) The Supreme Court or, as the case may be, the High Court, while considering any application under sub-section (4) or sub-section (5) or sub-section (6), shall, notwithstanding any judgment, decree or order of any court, confine to the examination of the existence of an arbitration agreement.\u201d (emphasis supplied) From a reading of Section 11(6-A), the intention of the legislature is crystal clear i.e. the court should and need only look into one aspect\u2014the existence of an arbitration agreement. What are the factors for deciding as to whether there is an arbitration agreement is the next question. The resolution to that is simple\u2014it needs to be seen if 14 (2017) 9 SCC 729. the agreement contains a clause which provides for arbitration pertaining to the disputes which have arisen between the parties to the agreement. \u2026 59. The scope of the power under Section 11(6) of the 1996 Act was considerably wide in view of the decisions in SBP and Co. [SBP and Co. v. Patel Engg. Ltd., (2005) 8 SCC 618] and Boghara Polyfab [National Insurance Co. Ltd. v. Boghara Polyfab (P) Ltd., (2009) 1 SCC 267 : (2009) 1 SCC (Civ) 117] . This position continued till the amendment brought about in 2015. After the amendment, all that the courts need to see is whether an arbitration agreement exists\u2014nothing more, nothing less. The legislative policy and purpose is essentially to minimise the Court's intervention at the stage of appointing the arbitrator and this intention as incorporated in Section 11(6-A) ought to be respected.\u201d 25. In Mayavati Trading Company Private Ltd. v. Pradyut Dev Burman15, a three-judge bench held that the scope of power of the Court under Section 11 (6A) had to be construed in the narrow sense. In paragraph 10, it was opined as under : \u201c10. This being the position, it is clear that the law prior to the 2015 Amendment that has been laid down by this Court, which would have included going into whether accord and satisfaction has taken place, has now been legislatively overruled. This being the position, it is difficult to agree with the reasoning contained in the aforesaid judgment [United India Insurance Co. Ltd. v. Antique Art Exports (P) Ltd., (2019) 5 SCC 362 : (2019) 2 SCC (Civ) 785] , as Section 11(6-A) is confined to the examination of the existence of an arbitration agreement and is to be understood in the narrow sense as has been laid down in the judgment in Duro Felguera, SA [Duro Felguera, SA v. Gangavaram Port Ltd., (2017) 9 SCC 729\u201d 26. In Uttarakhand Purv Sainik Kalyan Nigam v. Northern Coal Field Limited,16 this Court took note of the recommendations of the Law Commission in its 246th Report, the relevant extract of which reads as : \u201c7.6. The Law Commission in the 246th Report [ Amendments to the Arbitration and Conciliation Act, 1996, Report No. 246, Law Commission of India (August 2014), p. 20.] recommended that: \u201c33. \u2026 the Commission has recommended amendments to Sections 8 and 11 of the Arbitration and Conciliation Act, 1996. The scope of the judicial intervention is only restricted to situations where the court/judicial authority finds that the arbitration agreement does not exist or is null and void. Insofar as the nature of intervention is concerned, it is recommended that in the event the court/judicial authority is prima facie satisfied against the argument challenging the arbitration agreement, it shall appoint the arbitrator and/or refer the parties to arbitration, as the case may be. The amendment envisages that the judicial authority shall not refer the parties to arbitration only if it finds that there does not exist an arbitration agreement or that it is null and void. If the judicial authority is of the opinion that prima facie the arbitration agreement exists, then it shall refer the dispute to arbitration, and leave the existence of the arbitration agreement to be finally determined by the Arbitral Tribunal.\u201d 15 (2019) 8 SCC 714. 16 (2020) 2 SCC 455. In view of the legislative mandate contained in the amended Section 11(6A), the Court is now required only to examine the existence of the arbitration agreement. All other preliminary or threshold issues are left to be decided by the arbitrator under Section 16, which enshrines the kompetenz- komptenz principle. The doctrine of kompetenz-komptenz implies that the arbitral tribunal is empowered, and has the competence to rule on its own jurisdiction, including determination of all jurisdictional issues. This was intended to minimise judicial intervention at the pre-reference stage, so that the arbitral process is not thwarted at the threshold when a preliminary objection is raised by the parties. 27.The 2019 Amendment to Section 11 Section 11 has been further amended by the Arbitration and Conciliation (Amendment) Act, 2019 to promote institutionalization of arbitration in India. The 2019 Amendment Act has deleted sub-section (6A) in Section 11. However, the amended to Section 11 is yet to be notified. Consequently, sub-section (6A) continues to remain on the statute book, and governs the scope of power under Section 11 for the present. The notification giving effect to the provisions of the 2019 Amendment Act which have been brought into force, reads as : \u201c MINISTRY OF LAW AND JUSTICE (Department of Legal Affairs) NOTIFICATION New Delhi, the 30th August, 2019 S.O. 3154(E). \u2014 In the exercise of the powers conferred by sub-section (2) of section 1 of the Arbitration and Conciliation (Amendment) Act, 2019 (33 of 2019), the Central Government hereby appoints the 30th August, 2019 as the date on which the provisions of the following sections of the said Act shall come into force:\u2014 (1) section 1; (2) section 4 to section 9 [both inclusive]; (3) section 11 to section 13 [both inclusive]; (4) section 15. [F.No. H-11018/2/2017-Admn.-III(LA)] Dr. RAJIV MANI, Jt. Secy. and Legal Adviser \u201d 28. The reference to \u201cSection 11\u201d in clause (3) of the Notification dated 30.08.2019 pertains to Section 11 of the Amendment Act [and not the principal Act of 1996]. The amendment to Section 11 in the 2019 Amendment Act finds place in Section 3 of the 2019 Amendment Act, which reads as : \u201c 3. Amendment of section 11. \u2013 In section 11 of the principal Act, - (i) \u2026. (ii) \u2026. (iii) \u2026. (iv) \u2026. (v) sub-sections (6A) and (7) shall be omitted \u201d 29. After the amendment by the 2019 Amendment to Section 11 is notified, it will result in the deletion of sub-section (6A), and the default power will be exercised by arbitral institutions designated by the Supreme Court, or the High Court, as the case may be. It is relevant to note that sub-section (6B) in Section 11, has not been amended by the 2019 Amendment Act. Sub-section (6B) provides that the designation of any person, or institution by the Court, shall not be regarded as a delegation of \u201cjudicial power\u201d. Consequently, it would not be open for the person or institution designated by the Court to exercise any judicial power, and adjudicate on any issue, including the issue of validity of the agreement, or the arbitrability of disputes. The amendment to sub-section (8) of Section 11 by the 2019 Amendment [which is also yet to be notified], provides that the arbitral institution will be empowered to : (a) seek a disclosure in writing from the prospective arbitrator in terms of sub-section (1) of Section 12, to secure the appointment of an independent and impartial arbitrator; and (b) ensure that the arbitrator has the qualifications required by the arbitration agreement. 30.Issue of Limitation Limitation is normally a mixed question of fact and law, and would lie within the domain of the arbitral tribunal. There is, however, a distinction between jurisdictional and admissibility issues. An issue of \u2018jurisdiction\u2019 pertains to the power and authority of the arbitrators to hear and decide a case. Jurisdictional issues include objections to the competence of the arbitrator or tribunal to hear a dispute, such as lack of consent, or a dispute falling outside the scope of the arbitration agreement. Issues with respect to the existence, scope and validity of the arbitration agreement are invariably regarded as jurisdictional issues, since these issues pertain to the jurisdiction of the tribunal. 31. Admissibility issues however relate to procedural requirements, such as a breach of pre-arbitration requirements, for instance, a mandatory requirement for mediation before the commencement of arbitration, or a challenge to a claim or a part of the claim being either time-barred, or prohibited, until some pre-condition has been fulfilled. Admissibility relates to the nature of the claim or the circumstances connected therewith. An admissibility issue is not a challenge to the jurisdiction of the arbitrator to decide the claim. 32. The issue of limitation, in essence, goes to the maintainability or admissibility of the claim, which is to be decided by the arbitral tribunal. For instance, a challenge that a claim is time-barred, or prohibited until some pre- condition is fulfilled, is a challenge to the admissibility of that claim, and not a challenge to the jurisdiction of the arbitrator to decide the claim itself. 33. In Swisbourgh Diamond Mines (Pty) Ltd. & Ors. v. Kingdom of Lesotho17, the Singapore Court of Appeal distinguished between \u201cjurisdiction\u201d and \u201cadmissibility\u201d in paragraphs 207 and 208, which read as : \u201c207. Jurisdiction is commonly defined to refer to the \u201cpower of the tribunal to hear a case\u201d, whereas admissibility refers to \u201cwhether it is appropriate for the tribunal to hear it\u201d : Waste Management, Inc. v. United Mexican States ICSID Case No. ARB (AF) / 98 / 2, Dissenting Opinion of Keith Highet ( 8 May 2000) at [58]. To this, Zachary Douglas adds 17 [2019] 1 SLR 263. clarity to this discussion by referring to \u201cjurisdiction\u201d as a concept that deals with \u201cthe existence of [the] adjudicative power\u201d of an arbitral tribunal, and to \u201cadmissibility\u201d as a concept dealing with \u201cthe exercise of that power\u201d and the suitability of the claim brought pursuant to that power for adjudication:[Zachary Douglas, The Press, 2009] at paras 291 and 310. 208. The conceptual distinction between jurisdiction and admissibility is not merely an exercise in linguistic hygiene pursuant to a pedantic hair-spitting endeavour. This distinction has significant practical import in investment treaty arbitration because a decision of the tribunal in respect of jurisdiction is reviewable by the supervisory courts at the seat of the arbitration (for non-ICSID arbitrations) or before an ICSID ad hoc committee pursuant to Art 52 of the ICSID Convention (for ICSID arbitrations,) whereas a decision of the tribunal on admissibility is not reviewable : see Jan Paulsson, \u201cJurisdiction and Admissibility\u201d in Global Reflections on International Law, Commerce and Dispute Resolution, Liber Amicorum in honour of Robert Briner (Gerald Aksen et al, eds) (ICC Publishing, 2005) at p 601, Douglas at para 307, Waibel at p 1277, paras 257 and 257 and 258, Hanno Wehland, \u201cJurisdiction and Admissibility in Proceedings under the ICSID Convention and the ICSID Additional Facility Rules\u201d in ICSID Convention after 50 Tears : Unsettled Issues (Crina Baltag, ed) (Kluwer Law International, 2016) at pp 233-234, and Chin Leng at p 124.\u201d 34. The judgment in Lesotho (supra) was followed by in BBA & Ors. v. BAZ & Anr.,18 wherein the Court of Appeal held that statutory time bars go towards admissibility. The Court held that the \u201ctribunal versus claim\u201d test should be applied for purposes of distinguishing whether an issue goes towards jurisdiction or admissibility. The \u201ctribunal versus claim\u201d test asks whether the objection is targeted at the tribunal (in the sense that the claim should not be arbitrated due to a defect in or omission to consent to arbitration), or at the claim (in that the claim itself is defective and should not be raised at all). Applying the \u201ctribunal versus claim\u201d test, a plea of statutory time bar goes towards admissibility as it attacks the claim. It makes no difference whether the applicable statute of limitations is classified as substantive (extinguishing the claim) or procedural (barring the remedy) in the private international law sense. 35. The issue of limitation which concerns the \u201cadmissibility\u201d of the claim, must be decided by the arbitral tribunal either as a preliminary issue, or at the final stage after evidence is led by the parties. 18 [2020] SGCA 53. 36. In a recent judgment delivered by a three-judge bench in Vidya Drolia v. Durga Trading Corporation19, on the scope of power under Sections 8 and 11, it has been held that the Court must undertake a primary first review to weed out \u201cmanifestly ex facie non-existent and invalid arbitration agreements, or non-arbitrable disputes.\u201d The prima facie review at the reference stage is to cut the deadwood, where dismissal is bare faced and pellucid, and when on the facts and law, the litigation must stop at the first stage. Only when the Court is certain that no valid arbitration agreement exists, or that the subject matter is not arbitrable, that reference may be refused. In paragraph 144, the Court observed that the judgment in Mayavati Trading had rightly held that the judgment in Patel Engineering had been legislatively overruled. Paragraph 144 reads as : \u201c144. As observed earlier, Patel Engg. Ltd. explains and holds that Sections 8 and 11 are complementary in nature as both relate to reference to arbitration. Section 8 applies when judicial proceeding is pending and an application is filed for stay of judicial proceeding and for reference to arbitration. Amendments to Section 8 vide Act 3 of 2016 have not been omitted. Section 11 covers the situation where the parties approach a court for appointment of an arbitrator. Mayavati Trading (P) Ltd., in our humble opinion, rightly holds that Patel Engg. Ltd. has been legislatively overruled and hence would not apply even post omission of sub-section (6-A) to Section 11 of the Arbitration Act. Mayavati Trading (P) Ltd. has elaborated upon the object and purposes and history of the amendment to Section 11, with reference to sub-section (6-A) to elucidate that the section, as originally enacted, was facsimile with Article 11 of the Uncitral Model of law of arbitration on which the Arbitration Act was drafted and enacted.\u201d (emphasis supplied) While exercising jurisdiction under Section 11 as the judicial forum, the court may exercise the prima facie test to screen and knockdown ex facie meritless, frivolous, and dishonest litigation. Limited jurisdiction of the Courts would ensure expeditious and efficient disposal at the referral stage. At the referral stage, the Court can interfere \u201conly\u201d when it is \u201cmanifest\u201d that the claims are ex facie time barred and dead, or there is no subsisting dispute. Paragraph 148 of the judgment reads as follows : 19 (2021) 2 SCC 1. \u201c148. Section 43(1) of the Arbitration Act states that the Limitation Act, 1963 shall apply to arbitrations as it applies to court proceedings. Sub-section (2) states that for the purposes of the Arbitration Act and Limitation Act, arbitration shall be deemed to have commenced on the date referred to in Section 21. Limitation law is procedural and normally disputes, being factual, would be for the arbitrator to decide guided by the facts found and the law applicable. The court at the referral stage can interfere only when it is manifest that the claims are ex facie time-barred and dead, or there is no subsisting dispute. All other cases should be referred to the Arbitral Tribunal for decision on merits. Similar would be the position in case of disputed \u201cno-claim certificate\u201d or defence on the plea of novation and \u201caccord and satisfaction\u201d. As observed in Premium Nafta Products Ltd. [Fili Shipping Co. Ltd. v. Premium Nafta Products Ltd., 2007 UKHL 40 : 2007 Bus LR 1719 (HL)] , it is not to be expected that commercial men while entering transactions inter se would knowingly create a system which would require that the court should first decide whether the contract should be rectified or avoided or rescinded, as the case may be, and then if the contract is held to be valid, it would require the arbitrator to resolve the issues that have arisen.\u201d In paragraph 154.4, it has been concluded that : \u201c154.4. Rarely as a demurrer the court may interfere at Section 8 or 11 stage when it is manifestly and ex facie certain that the arbitration agreement is non-existent, invalid or the disputes are non-arbitrable, though the nature and facet of non-arbitrability would, to some extent, determine the level and nature of judicial scrutiny. The restricted and limited review is to check and protect parties from being forced to arbitrate when the matter is demonstrably \u201cnon-arbitrable\u201d and to cut off the deadwood. The court by default would refer the matter when contentions relating to non-arbitrability are plainly arguable; when consideration in summary proceedings would be insufficient and inconclusive; when facts are contested; when the party opposing arbitration adopts delaying tactics or impairs conduct of arbitration proceedings. This is not the stage for the court to enter into a mini trial or elaborate review so as to usurp the jurisdiction of the Arbitral Tribunal but to affirm and uphold integrity and efficacy of arbitration as an alternative dispute resolution mechanism.\u201d (emphasis supplied) In paragraph 244.4 it was concluded that : \u201c244.4. The court should refer a matter if the validity of the arbitration agreement cannot be determined on a prima facie basis, as laid down above i.e. \u201cwhen in doubt, do refer\u201d. 37. The upshot of the judgment in Vidya Drolia is affirmation of the position of law expounded in Duro Felguera and Mayavati Trading, which continue to hold the field. It must be understood clearly that Vidya Drolia has not re- surrected the pre-amendment position on the scope of power as held in SBP & Co. v. Patel Engineering (supra). It is only in the very limited category of cases, where there is not even a vestige of doubt that the claim is ex facie time-barred, or that the dispute is non-arbitrable, that the court may decline to make the reference. However, if there is even the slightest doubt, the rule is to refer the disputes to arbitration, otherwise it would encroach upon what is essentially a matter to be determined by the tribunal. 38. Applying the law to the facts of the present case, it is clear that this is a case where the claims are ex facie time barred by over 5 \u00bd years, since Nortel did not take any action whatsoever after the rejection of its claim by BSNL on 04.08.2014. The notice of arbitration was invoked on 29.04.2020. There is not even an averment either in the notice of arbitration, or the petition filed under Section 11, or before this Court, of any intervening facts which may have occurred, which would extend the period of limitation falling within Sections 5 to 20 of the Limitation Act. Unless, there is a pleaded case specifically adverting to the applicable Section, and how it extends the limitation from the date on which the cause of action originally arose, there can be no basis to save the time of limitation. 39. The present case is a case of deadwood / no subsisting dispute since the cause of action arose on 04.08.2014, when the claims made by Nortel were rejected by BSNL. The Respondent has not stated any event which would extend the period of limitation, which commenced as per Article 55 of the Schedule of the Limitation Act (which provides the limitation for cases pertaining to breach of contract) immediately after the rejection of the Final Bill by making deductions. In the notice invoking arbitration dated 29.04.2020, it has been averred that: \u201c Various communications have been exchanged between the Petitioner and the Respondents ever since and a dispute has arisen between the Petitioner and the Respondents, regarding non payment of the amounts due under the Tender Document.\u201d The period of limitation for issuing notice of arbitration would not get extended by mere exchange of letters, 20 or mere settlement discussions, where a final bill is rejected by making deductions or otherwise. Sections 5 to 20 of the Limitation Act do not exclude the time taken on account of settlement discussions. Section 9 of the Limitation Act makes it clear that : \u201cwhere once the time has begun to run, no subsequent disability or inability to institute a suit or make an application stops it.\u201d There must be a clear notice invoking arbitration setting out the \u201cparticular dispute\u201d 21 (including claims / amounts) which must be received by the other party within a period of 3 years from the rejection of a final bill, failing which, the time bar would prevail. In the present case, the notice invoking arbitration was issued 5 \u00bd years after rejection of the claims on 04.08.2014. Consequently, the notice invoking arbitration is ex facie time barred, and the disputes between the parties cannot be referred to arbitration in the facts of this case. 40.Conclusion Accordingly, we hold that : (i) The period of limitation for filing an application under Section 11 would be governed by Article 137 of the First Schedule of the Limitation Act, 1963. The period of limitation will begin to run from the date when there is failure to appoint the arbitrator; It has been suggested that the Parliament may consider amending Section 11 of the 1996 Act to provide a period of limitation for filing an 20 S.S.Rathore v. State of Madhya Pradesh (1989) 4 SCC 582. Union of India & Ors. v. Har Dayal (2010) 1 SCC 394. CLP India Private Limited v. Gujarat Urja Vikas Nigam Limited & Anr. (2020) 5 SCC 185. 21 Section 21 of the Arbitration and Conciliation Act, 1996. application under this provision, which is in consonance with the object of expeditious disposal of arbitration proceedings; (ii) In rare and exceptional cases, where the claims are ex facie time- barred, and it is manifest that there is no subsisting dispute, the Court may refuse to make the reference. 41. In view of the aforesaid, the present Civil Appeals are allowed, and the impugned orders dated 13.10.2020 and 14.01.2021 passed by the High Court are set aside. The application filed under Section 11 by the Respondent before the High Court is consequently dismissed. We record our appreciation and gratitude to Mr. Arvind Datar, Senior Advocate, for having rendered his valuable assistance as Amicus at short notice. ................................................J. (Indu Malhotra) .............................................J. New Delhi; (Ajay Rastogi) March 10, 2021",
        "445635": "PETITIONER: BASAVARAJ R. PATIL AND OTHERS Vs. RESPONDENT: STATE OF KARNATAKA AND OTHERS DATE OF JUDGMENT: 11/10/2000 BENCH: S.N.Variava, K.T.Thomas JUDGMENT: L.....I.........T.......T.......T.......T.......T.......T..J J U D G M E N T THOMAS, J. Leave granted. When a criminal court completes prosecution evidence (other than in summons cases) is it indispensably mandatory that the accused himself should be questioned? Can not the court allow the advocate to answer such questions on behalf of the accused at least in some exigent conditions? A two Judge Bench of this Court has held in Usha K. Pillai vs. Raj K. Srinivas & ors. {1993(3) SCR 467} that there is no alternative to it permissible under law. When such an issue arose in this case before this Court, a Bench of two Judges made a reference to a larger Bench for reconsideration of the legal position stated in Usha K. Pillai (supra). The aforesaid question arose in this case from the following factual background: First appellant a software engineer (now stationed in USA) is the husband of second respondent Ms. Arundathi. Their marriage was solemnised in November 1992 and a female child was born to them. But eventually their connubial life passed through bad weather and the situation reached a stage when Arundathi moved a Judicial Magistrate of First Class for maintenance allowance from her husband. An order in her favour was passed by the said magistrate under Section 125 of the Code of Criminal Procedure (for short the Code). On 10.3.1993, Arundathi lodged a complaint with the police alleging, inter alia, that her husband and his sister (Kumari Jaya second appellant) and their parents had ill-treated Arundathi for not bringing more dowry; and that she was pestered with persistent demand for more amount of dowry. The police conducted investigation on the said complaint and laid a charge-sheet against both the appellants and their parents. The trial court discharged the mother of the appellants at the initial stage itself and framed a charge against the appellants and their father for offences under Section 3 and 4 of the Dowry Prohibition Act and also under Section 498-A of the Indian Penal Code. Prosecution examined five witnesses and closed the evidence. When the next stage for examination of the accused under Section 313 of the Code reached the trial court passed the following proceedings: Evidence closed and statement under Sec/313 Cr.P.C. was kept ready to give opportunity to the accused as prescribed under Sec.313 Cr.P.C. Statement of A-2 father recorded who denied every circumstance, but did not add any further statement. The counsel for the accused filed application for dispensing with the questioning of A-1 & A-4. As A-1 is in America and A-4 is a student studying in Gadag, the counsel has endorsed on their statement that A-1 and A-4 have nothing to say by way of their statements. Considering the reality, A-1 has to come from America the case will unnecessarily be delayed. Hence, on the said endorsement the counsel for the accused was given the opportunity to make statement for A-1 and A-4 and their physical presence is dispensed with. The case is posted for argument. The trial magistrate thereafter proceeded to hear the arguments and finally passed a judgment acquitting all the accused of the offences charged. Arundathi then filed a revision before the High Court challenging the aforesaid order of the acquittal. A Single Judge of the High Court heard the revision and learned Judge found that as per the decision of this Court in Usha K. Pillai (1993 (3) SCR 467), trial court has no other alternative and has no discretion to dispense with the examination of the accused personally under Section 313 of the Code. Hence the learned Single Judge set aside the order of acquittal passed by the trial court and remitted the case to the trial court with a direction to dispose it of afresh after examining the three accused under Section 313 of the Code. The father of the appellants passed away in the meanwhile. Hence this appeal was filed by the remaining accused who are the husband and sister-in-law of Arundathi. One of the contentions raised by the appellants is that if the court did not put questions under Section 313 of the Code there is no reason for the complainant to be aggrieved thereof because the prejudice can be caused only to the accused due to non-compliance with the said provision. Next contention is more important and that was pressed into service here, that no criminal court can be rendered absolutely powerless to deal with a situation like this, i.e. if the accused is in such a far away country and when he has to incur a whopping expenditure and undertake a tedious long distance journey solely for the purpose of answering the court questions he himself pleaded that his counsel may be allowed to answer such questions on his behalf. We are not inclined to deal with the first contention in this case because the High Court interfered with the order in exercise of its revisional jurisdiction. Such jurisdiction can be invoked even suo motu and therefore it is immaterial whether the power of the High Court was exercised on a motion made by the complainant. Now, for dealing with the second contention we may extract Section 313 of the Code: 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 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 question, 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. The forerunner of the said provision in the Code of Criminal Procedure 1898 (for short 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). Dealing with the position as the Section remained in the original form under the old Code, a three Judge Bench of this Court (Fazal Ali, Mahajan and Bose, JJ) interpreted the section in Hate Singh Bhagat Singh vs. State of Madhya Bharat (AIR 1953 SC 468) that the statements of the accused recorded by committal 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. Parliament, thereafter, introduced Section 342A 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. In Bibhuti Bhusan Das Gupta & anr. vs. State of West Bengal {1969(2) SCR 104}, another three Judge Bench (Sikri, Bachawat and Hegde, JJ) dealing with the combined operation of Section 342 and 342A of the old Code made the following observations: Under Section 342A only the accused can give evidence in person and his pleaders evidence cannot be treated as his. The answers of the accused under s.342 is intended to be a substitute for the evidence which he can give as a witness under sec. 342A . The privilege and the duty of answering questions under sec. 342 can not 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 examined in his place. 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 540A, 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. The said recommendation has been followed up by the 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 summarized above, come to the conclusion that section 342 should not be deleted. In our opinion, the stage has not yet come for its 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. 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 (supra) 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 of the IPC. The two Judge Bench held thus: 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. Contextually we cannot bypass the decision of a three Judge Bench of this Court in Shivaji Sahabrao Bobade & anr. vs. State of Maharashtra & anr. {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: It is trite law, nevertheless fundamental, that the prisoners 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 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. The above approach shows that some dilution of the rigor 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. 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 vs. 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 enquire 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. 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. 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 of 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. 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? 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? 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 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 sessions 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. 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 this could be achieved? 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. 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 answers]. 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. 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. In the present case the trial court can pass appropriate orders if an application is made by the accused relating to the examination under Section 313 of the Code, in the light of the legal principles stated above. This criminal appeal is disposed of accordingly.",
        "87753577": "REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5102 OF 2006 Gurudassing Nawoosing Panjwani Appellant(s) versus The State of Maharashtra and others Respondent(s) J U D G M E N T | | |M.Y. Eqbal, J.: | This appeal by special leave is directed against order dated 13.7.2005 passed by the Division Bench of the Bombay High Court. Dismissing Letter Patents Appeal preferred by the appellant against the order of the learned Single Judge who dismissed his writ petition and confirmed the orders passed by the State Minister for Revenue in the proceeding R.T.S.3402/ Pra.kra.309/L-6 dated 18th October, 2002. 2. It is the appellant\u2019s case that his father Shri Nawoosingh Panjumal Panjwani was a displaced person who migrated from Pakistan to India during the period of partition and the appellant\u2019s family while in Pakistan was having agricultural land over there admeasuring 4 acres 10 gunthas. After migration, the family took shelter at Refugee Camp of Pimpri, Pune in Maharashtra. In view of enactment of Displaced Persons (Compensation and Rehabilitation) Act, 1954 by the Union of India, the immovable properties left behind by Muslims who had migrated to Pakistan were acquired and the same was distributed to displaced persons as a \u201ccompensation pool\u201d. Accordingly, father of the appellant was allotted a land admeasuring 2 acres 5 gunthas bearing Revenue Survey Nos.351 and 118/2 situated at Village Lonavala, Taluka Maval, District Pune. It has been pleaded by the appellant that Survey No.118/1 and 118/2 are one and the same thing. 3. The facts in brief, as narrated in the impugned order, are that Survey Nos.118, 328 and 351 of Lonavala were originally owned by one Haji Habib Tar Mohammed Janu. The said Haji Habib Tar Mohammed Janu migrated to Pakistan and while going to Pakistan, he sold his property to one Smt. Hajrabi Haji Yusuf on 4.6.1949. However, this transaction was cancelled by the Collector and Custodian of Evacuee Property on 17.4.1949 as per Section 8(i) of the Evacuee Properties Act and these lands were accordingly entered as Evacuee Property by the Tahsildar, Maval on 26.10.1949. It appears that these survey numbers were also given C.T.S.No. 129, 130-A, 130-B and 133. It appears that in CTS No.129, 130-A, 130-B and 133, apart from vacant land there is a bungalow No.52- Habib Villa. It appears that the Regional Settlement Commissioner placed this property for auction through Government Auctioner and one Gulabbai Desaipurchased the said property in auction for a consideration of Rs.16,750/- on 17.5.1956 and, accordingly, sale certificate was issued by the Regional Settlement Commissioner, Bombay on behalf of the Government. In the said sale certificate the C.T.S. No 129, 130-A, 130-B and 133 of Village Lonavala were mentioned. The area of this CTS Nos. were as under: 129 - 55.16 sq.mts. 130A - 1651.1 sq.mts. 130B - 2934.02 sq.mts 133 - 3237.00 sq.mts ______________ Total 7897.21 sq.mts. ------------------ 4. On the basis of the said sale certificate the mutation Entry No.1836 was effected in the village record in favour of Gulabai Desai, and thereby her name was entered in Survey Nos.118/1B and 328 of village Lonavala to the extent of 29.30 Ares and 70 Ares respectively. Thereafter, Gulabai sold CTS No.133 admeasuring 33 Gunthas on 24.4.1977 to Respondent No.3 Genu Kadu. The said Gulabai also gifted her remaining area from this Survey numbers to her grandson Anil Gajanan Desai on 15.1.1979, who in turn has sold his properties to Respondent no.2 - Prem Hasmatraj Lalwani in the year 1980. 5. The Survey Nos.118/2 and 351, being Evacuee Properties, were allotted to the Appellant in the year 1956. Later on, it was found that the Appellant is in possession of more area and, therefore, the said order was modified on 6.5.1982 and excess area was granted to the Appellant on payment of Rs.31,360/-, which Appellant had paid on 17.5.1982 in Government Treasury and thereby the Deputy Collector and Assistant Settlement Commissioner, Pune granted the excess land to the Appellant, and thereafter the dispute started between the parties. 6. In the impugned order, Division Bench made it clear that since the dispute between the parties was in respect of the area, as to what has been purchased in auction sale by Gulabai Desai and what is the area allotted to the Appellant by the orders of the Deputy Collector and Deputy Custodian of Evacuee Properties, the Appellant requested the Bench not to enter into the merits on this question in this LPA since the parties may prosecute their remedies in the Civil Court for such adjudication, and therefore, that aspect was not considered by the High Court. However, in the facts of the conflicting claims, the Appellant made grievance to the Deputy Collector and the Deputy Custodian of Evacuee Properties in respect of the Mutation made in favour of the Respondent Gulabai and other Respondents and, therefore, by order dated 18.9.1984 the Deputy Collector and Deputy Custodian of Evacuee Properties, Pune, directed the Sub-Divisional Officer, Haveli Sub Division to take up the case in revision under Section 257 of Maharashtra Land Revenue Code and pass necessary orders. In view of these directions, the Sub-Divisional Officer, Haveli, Sub Division, Pune, initiated proceeding RTS Revision 14 of 1984 and by order dated 30.7.1985 cancelled the mutation Entry No.1836 which comprises land admeasuring 7897 sq. yards and directed necessary corrections in the record as per the observations made in the order. 7. It appears that the said order was taken in appeal by the respondent and the matter was remanded to the Sub Divisional Officer. After remand, the Sub Divisional Officer, conducted inquiry and again passed an order on 29.10.1987 and confirmed the earlier order. Therefore, the RTS Appeal No.128 of 1987 was preferred before the Collector, which was disposed off by the Additional Collector on 13.7.1993. By the said order, the Order of the third Sub-Divisional Officer was maintained. However, further inquiry as directed by the SDO was to be conducted. Since the mutation Entry No.1836 was cancelled by above order, the Talathi gave effect to these orders and effected the mutation Entry No.2176 and showed the disputed properties in the name of the Collector and Deputy Custodian of Evacuee Properties. The directions were issued by the Collector to the Tahsildar to place the appellant in possession of the property as per the orders of the Deputy Collector and the Deputy Custodian of Evacuee Properties. However, instead of giving effect to those orders, it appears that the Revenue Officers at Tahsil level effected two mutations, viz, Mutation No.2377 and 2394. By mutation entry No.2377 the name of respondent was again mutated in the record and by the mutation Entry No.2394 the name of Genu Kadu was mutated in the record. Since the Collector noticed on complaint that the orders of the Collector has been bypassed or surpassed by the Subordinate Revenue Officers, the Collector by order dated 12.7.1999 directed the SDO to take these mutations namely mutation Entry No.2377 and 2394 in revision and therefore the Sub-Divisional Officer, Maval Division has taken these mutations in revision bearing RTS Revision No.12 of 1999. The said revision was decided by the Sub Divisional officer at Maval on 28.1.2000 and those mutations were cancelled. 8. Being aggrieved by the order passed in the said revision, Respondent No.2 Lalwani preferred RTS Appeal No.81 of 2000 and the Respondent No.3 Genu Kadu preferred RTS Appeal No.114 of 2000. Both these RTS Appeals were heard by the Additional Collector, Pune and by order dated 28.5.2001 the Addl. Collector, Pune dismissed the said appeals and confirmed the order of the Sub Divisional Officer, Maval. Aggrieved by the said order of the Additional Collector, Respondent No.2 preferred RTS Revision No.330 of 2001 under Section 257 of Maharashtra Land Revenue Code, 1966 before the Additional Commissioner, Pune Division, Pune. The said revision was decided by the Additional Commissioner, Pune by order dated 22.11.2001 and the said revision was dismissed. 9. Respondent No.2 challenged this order of the Additional Commissioner by filing the proceeding RTS 3402/Pra.kra.309/L-6 by way of second revision before the Revenue Minister for State and the said proceeding was decided by the Minister for State on 18.10.2002. The Revenue Minister allowed the said proceeding and set aside the orders passed by the Sub Divisional Officer, Maval dated 28.1.2000, order dated 28.5.2001 of Additional Collector, Pune and of Additional Commissioner dated 22.11.2001, and thus, restored the position as reflected by the Mutation Entries Nos.1836 and 2377 and 2394. Thus, all the entries in favour of the Respondents were protected and maintained by the order of the State Minister for Revenue. 10. Appellant challenged the order dated 19.10.2002 passed by the Minister by filing a writ petition, which was dismissed by learned Single Judge of the Bombay High Court. Thereafter, the appellant filed Letters Patent Appeal, which was also dismissed by the Division Bench holding that when the State Minister for Revenue entertained the matter, he was possessed of jurisdiction under Section 257 of the Maharashtra Land Revenue Code and, therefore, the order passed by him under the said authority is within his jurisdiction, power and competence. The Division Bench observed thus: \u201c\u2026We record our finding that under Section 257 of the Maharashtra Land Revenue Code more than one revision is possible. Now coming to the facts of the present case, the mutation Entry No.1836 was in fact certified. However, the Sub-Divisional Officer has taken the said mutation in revision in RTS Revision No.14 of 1984 and has set aside the mutation by order dated 30.7.1985. There was appeal as against that order which was remanded. It was again decided by the Sub Divisional Officer on 29.10.1987 and the said mutation was set aside. There was RTS Appeal No.128 of 1987 which was decided on 13.7.1993. In view of these orders the mutation entry No.1836 was cancelled and Mutation Entry No.2176 was effected whereby the name of the Collector and the Deputy Collector of the Evacuee Property was entered into 7 X 12 extracts. It is further found that when the orders of the Collector directing to put the petitioner into possession were not obeyed by the subordinate Revenue Officers and the Revenue Officers effected the mutation entry No.2377 in favour of the Respondent Nos.3 Gulabai Desai and Mutation Entry No.2394 in favour of the Respondent No.5 Genu Kadu and thereafter for second time the special Divisional Officer, Maval, has exercised the revisional powers under Section 257 and initiated proceeding RTS Revision 12 of 1999 in respect of the mutation entry No.2377 and 2394. The RTS Revision 12/99 was allowed on 28.1.2000 as against that two RTS appeals namely, RTS Appeal No.81 of 2000 and RTS Appeal No.114 of 2000 were preferred by the Respondent. They were decided on 28.5.2001. As against that the RTS Revision No.330 of 2001 was preferred. The same was dismissed. As against that the RTS proceeding bearing No.3402 /Pra.Kra.309/L-6 was preferred before the Minister for State. All these proceedings will show that twice the Sub-Divisional Officer has exercised the revisional power under Section 257 at the directions of the Collector, namely the RTS Revision No.14 of 1984 and RTS Revision No.12 of 1999. It will further reveal that the appeals as against the RTS Revision No.14 of 1984 was preferred by the parties in view of the provisions of Section 247 and 249 sub-section 2. It will equally appear that when the orders were passed in Revision Application No.12 of 1999 before the Sub Divisional Officer in exercise of the powers under Section 257 the parties have preferred two RTS appeals in view of the provisions of Section 247 and 249 sub-section 2. Not only that, thereafter the RTS Revision Application No.330 of 2001 was also preferred before the Commissioner and if the view is taken that the second revision is not tenable then in that circumstances since the first order passed in RTS Revision No.12 of 1999 is a revisional order, this second revision before the Commissioner being RTS Revision No.330 of 2001 would not have been tenable. However, said revision RTS 330 of 2001 is tenable since the appeals as provided under Section 247 and 249 intervene in between the revisional orders passed by the Sub-Divisional officer and the Commissioner. Thus, in short, we find that the scheme under Maharashtra Land Revenue Code is quite different scheme and it permits more than one revision. Thus, viewed from any angle, we find that the State Minister for Revenue when he entertained the matter, State Minister for revenue was possessed of jurisdiction under Section 257 of the Maharashtra Land Revenue Code and therefore the order passed by him under the said authority is within his jurisdiction, power and competence.\u201d 11. Hence, the present appeal by special leave. 12. Mr. Huzefa Ahmadi, learned senior counsel appearing for the appellant, mainly attacked the revisional power exercised by the Minister concerned in purported exercise of jurisdiction under Section 257 of the Maharashtra Land Revenue Code. In the alternative, learned Senior counsel submitted that even if it were to be admitted without prejudice that second revision is maintainable, the Minister being the revisional authority should not have interfered with the findings recorded by all the six Revenue Authorities. Referring the decision of the Bombay High Court in the case of Sambappa vs. State of Maharashtra [(2002) SCC on line, Bombay 1222], learned counsel submitted that when the Sub-Divisional Officer, Additional Collector and Additional Commissioner had concurrently recorded finding in favour of the appellant by observing that the revenue record is not in consonance with the factual aspect and they have directed to correct the revenue entries, in such a case, the second revisional authority exceeded its jurisdiction in entertaining the said application and interfering with the finding of fact. Section 257 makes it clear that a revisional authority has to consider only the legality and propriety of the decision. Learned counsel referring the revisional jurisdiction of the High Court under Section 115 of the Code of Civil Procedure tried to impress us that when the power of revision is given to the District Judge, then the High Court cannot entertain second revision petition under Section 115 of the Code. Learned counsel relied upon the decision of this Court in the case of State of Kerala vs. K.M. Charia Abdulla & Co., AIR 1965 SC 1585 and Hari Shankar vs. Rao Girdhari Lal Chowdhury, AIR 1963 SC 698. 13. Mr. Ahmadi, learned senior counsel further submitted that a request was made to the High Court not to enter into the merit of the case, and to confine itself to the question whether a second revision was at all maintainable, in the light of the ratio in Harishankar\u2019s case (supra), (1962) Suppl.(1) SCR 933, Hiralal Kapur vs. Prabhu Choudhury, (1988) 2 SCC 172 and Helper Girdharbhai vs. Saiyed Mohmad Mirasaheb Kadri and others, (1987) 3 SCC 538. Learned counsel also drew our attention to the decision of this Court in Dharampal vs. Ramshri, (1993) 1 SCC 435 where this Court held that a second revision to the High Court under Section 482 of the Cr.P.C. was not permitted. 14. Lastly, Mr. Ahmadi submitted that the second revision would not lie under Section 257 of the Revenue Code since Section 259 of the Code provides an opportunity to the State Government to only correct any \u201cFinal Order\u201d while exercising power under the provisions of Section 257 i.e. with regard to its legality and propriety. 15. Mr. Ravindra Srivastava, learned senior counsel appearing for the respondent\u2013State, at the very outset submitted that the appellant conceded before the High Court not to decide the merit of the case. The only point raised before the High Court was with regard to the maintainability of second revision before the State Government under Section 257 of the Revenue Code. Learned counsel submitted that Section 257 expressly confers power of revision on the State Government which power is coupled with power of control and superintendence. Learned counsel submitted that the Commissioner or the Additional Commissioner is not equal in a rank but subordinate to the State Government. Learned counsel submitted that the State Government is the supreme revenue authority and existence of more than one appeal or revision to an aggrieved party is not per se abhorrent to any legal principle; depends upon the Statute. Mr. Srivastava then contended that the High Court correctly analysed and appreciated the scheme of the Code vis a vis judicial review in revenue matters. Learned counsel put heavy reliance on the decision of this Court in the case of Ishwar Singh vs. State of Rajasthan and others, (2005) 2 SCC 334 for the proposition that there can be a second revision under the same provision of the Statute. 16. The only question that falls for consideration is as to whether a second revision under Section 257 is maintainable and that whether the State Government exceeds its jurisdiction in entertaining the second revision? 17. Before we proceed to decide the aforesaid question, we would like to refer the relevant provisions of the Maharashtra Land Revenue Code 1966. 18. Section 2(31) defines the Revenue Officer as under:- \u201c2 (31)\" revenue officer\" means every officer of any rank whatsoever appointed under any of the provisions of this Code, and employed in or about the business of the land revenue or of the surveys, assessment, accounts, or records connected therewith ;\u201d 19. Chapter II deals with the Revenue Officers, their powers and duties. Sections 5, 6 and 7 reads as under:- \u201c5. Chief Controlling authority in revenue matters. The chief controlling authority in all matters connected with the land revenue in his division shall vest in the Commissioner, subject to the superintendence, direction and control of the State Government. 6.Revenue Officers in division. The State Government shall appoint a Commissioner of each division; and may appoint in a division an Additional Commissioner and so many Assistant Commissioners as may be expedient, to assist the Commissioner: Provided that, nothing in this section shall preclude the appointment of the same officer as Commissioner for two or more divisions. 7.Revenue officers in district. (1)The State Government shall appoint a Collector for each district (including the City of Bombay who shall be in charge of the revenue administration there of ; and a Tahsildar for each taluka who shall be the chief officer entrusted with the local revenue administration of a taluka. (2)The State Government may appoint one or more Additional Collectors and in each district (including the City of Bombay and so many Assistant Collectors and Deputy Collectors (with such designations such as \"First\", \"Second\", Super numerary\", etc. Assistants as may be expressed in the order of their appointment), one or more Naib-Tahsildars in a taluka, and one or more Additional Tahsidars or Naib-Tahsildars therein and such other persons (having such designations) to assist the revenue officers as it may deem expedient. (3)Subject to the general orders of the State Government, the Collector may place any Assistant or Deputy Collector in charge of one more sub-divisions of a district, or may himself retain charge thereof. Such Assistant or Deputy Collector may also be called a Sub-Divisional Officer. (4) The Collector may appoint to each district as many persons as he thinks fit to be Circle Officers and Circle Inspectors to be in charge of a Circle, and one or more Talathis for a saza, and one or more Kotwals or other village servants for each village or group of villages, as he may deem fit.\u201d 20. Section 11 of the Code is worth to be quoted herein below:- \u201c11.Subordination of officers. (1)All revenue officers shall be subordinate to the State Government. (2)Unless the State Government directs otherwise, all revenue officers in a division shall be subordinate to the Commissioner, and all revenue Officers 2[in a district (including the City of Bombay)] shall be subordinate to the Collector. 3)Unless the State Government directs otherwise, all other Revenue Officers Including survey officers shall be subordinated, the one to the other, in such order as the State Government may direct.\u201d 21. Sections 13 and 14 deal with the powers and duties of all Revenue Officers. 22. From reading of the aforesaid provisions, it is manifest that the State Government makes appointment of the Revenue Officers including the Commissioner and the Chief Controlling Authorities in the revenue matters. Section 5 makes it clear that the Chief Controlling Authority in all matters connected with the land revenue in his Division shall vest with the Commissioner, subject to superintendence, directions and control of the State Government. Section 11 provides that all Revenue Officers shall be subordinate to the State Government. It is, therefore, clear that in revenue matters the State Government is the Supreme Revenue Authority. 23. In the present case, we noticed the scheme of the Code in the matters of hearing and disposal of appeals, revision and review. Section 247 deals with the appeal and appellate authorities, which reads as under:- \u201c247.Appeal and appellate authorities. (1)In the absence of any express provisions of this Code, or of any law for the time being in force to the contrary, an appeal shall lie from any decision or order passed by a revenue or survey officer specified in column 1 of the Schedule E under this Code or any other law for the time being in force to the officer specified in column 2 of that Schedule whether or not such decision or order may itself have been passed on appeal from the decision of order of the officer specified in column 1 of the said Schedule. Provided that, in no case the number of appeals shall exceed two. (2)When on account of promotion of change of designation, an appeal against any decision or order lies under this section to the same officer who has passed the decision or order appealed against, the appeal shall lie to such other officer competent to decide the appeal to whom it may be transferred under the provisions of this Code.\u201d 24. Section 248 is also relevant which provides the forum of appeal to the State Government. Similarly, Section 249 makes provision of appeal against the review or revision. 25. The schedule preferred to in Section 227 mentions the Authorities before whom appeal would lie. The Schedule appended to the Code is as follows:- Schedule E (See section 247) | |REVENUE OFFICER |APPELLATE AUTHORITY | |1. |1., All Officers in a |Sub-divisional Officer | | |Sub-Division, sub-ordinate to|or such Assistant or | | |the Sub-division Off |Deputy Collector as may| | | |be specified by the | | | |Collector in this | | | |behalf. | |2. |Sub-Divisional Officer, |Collector or such | | |Assistant or Deputy |Assistant or Deputy | | |Collector. |Collector who may be | | | |invested with powers of| | | |the Collector by the | | | |State Government in | | | |this behalf | |3. |Collector 1 (including the |Divisional | | |Collector of Bombay) or |Commissioner. | | |Assistant/Deputy Collector | | | |invested with the appellate | | | |power of the Collector., | | |4. |A person exercising powers |Such officer as may be | | |conferred by section 2 (15).,|specified by the State | | | |Government in this | | | |behalf. | | |Survey Officer |Appellate Authority | |1. |District Inspector of Land |Superintendent of Land | | |Records, Survey Tahsildar and|Records or such Officers| | |other Officer not above the |of equal ranks as may be| | |rank of District Inspector of|specified by the State | | |Land Records., |Government in this | | | |behalf. | |2. |Superintendent of Land |Director of Land Records| | |Records and other Officer of |or the Deputy Director | | |equal ranks.,. |of Land Records, who may| | | |be invested with the | | | |powers of Director of | | | |Land Records by the | | | |State Government in this| | | |behalf. | 26. Section 257 is the relevant provision which deals with the power of State Government and of certain revenue and survey officers to call for and examine the records and proceedings of Subordinate Officers. Section 257 reads as under:- \u201c257. Power of State Government and of certain revenue and survey officers to call for and examine records and proceedings of subordinate officers. (1) The State Government and any revenue of survey officer, not inferior in rank to an Assistant or Deputy Collector or a Superintendent of Land Records, in their respective departments, may call for and examine the record of any inquiry or the proceedings of any subordinate revenue or survey officer, for the purpose of satisfying itself or himself, as the case may be, as to the legality or propriety of any decision or order passed, and as to the regularity of the proceedings of such officer. (2) A Tahsildar, a Naib-Tahsildar, and a District Inspector of Land Records may in the same manner call for and examine the proceedings of any officer subordinate to them in any matter in which neither a formal nor a summary inquiry has been held. (3)If in any case, it shall appear to the State Government, or any officer referred to in sub-section (1) or sub-section (2) that any decision or order or proceedings so called for should be modified, annulled or reversed, it or he may pass such order thereon as it or he deems fit. Provided that, the State Government or such officer shall not vary or reverse any order affecting any question of right between private persons without having to the parties interested notice to appear and to be heard in support of such order. Provided further that, an Assistant of Deputy Collector shall not himself pass such order in any matter in which a formal inquiry has been held, but shall submit the record with his opinion to the Collector, who shall pall such order thereon as he may deem fit.\u201d 27. A bare reading of the aforesaid provision would show that the provision uses the word \u2018and\u2019 for State Government but for other Revenue officers it uses the word \u2018or\u2019. The language and the words used in the said provision suggest that jurisdiction of the State Government is concurrent with the jurisdiction of other Revenue officers in deciding the revision. Hence, even if one party goes to the Commissioner in revision, the State Government can still be approached under Section 257 for revision. The power of revision exercised by any Revenue officer including the Commissioner is a proceeding by a subordinate officer and the State Government can satisfy itself as to the legality and propriety of any decision including the order passed in revision by the Revenue officers. 28. Further, in view of the fact that State Government itself appoints the Revenue officers including the Commissioner under the scheme of the Code and all Revenue officers are subordinate to the State Government as per Section 11 of the Act, and even the Chief Controlling Authority in all matters connected with the land revenue in his Division is vested with the Commissioner, they are subject to the superintendence, direction and control of the State Government as provided under Section 5 of the Code. The power of the State Government has further been widened by Section 259 of the Code, which reads as under:- \u201c259. Rules as to decisions or orders expressly made final Whenever in this Code, it is provided that a decision or order shall be final or conclusive, such provision shall mean that no appeal lies from any such decision or order; but it shall be lawful to the State Government alone to modify, annul or reverse any such decision or order under the provision of Section 257.\u201d 29. The aforesaid provision makes it clear that even if the decision is considered to be final, the State Government\u2019s power to call for and examine the record and proceedings of subordinate officers is saved. In other words, the State Government in exercise of its revisional as well as general power of superintendence and control can call for any record of proceedings and consider the legality and propriety of the orders passed by the Revenue officers under Section 247 or 257 of the Code. 30. From perusal of the entire scheme of the Code including Section 257, it is manifest that the revisional powers are not only exercisable by the State Government but also by certain other Revenue officers. There is nothing in the Code to suggest that if these revisional powers are exercised by a Revenue officer who has jurisdiction, it cannot be further exercised by a superior Revenue officer or by the State Government. A fair reading of Sections 257 and 259 suggests that if revisional powers are exercised by a Revenue officer having jurisdiction to do so, further revisional power can be exercised by the superior officer or by the State Government. 31. A similar question came for consideration before this Court in the case of Ishwar Singh vs. State of Rajasthan and Others, (2005) 2 SCC 334 under the Rajasthan Cooperative Societies Act, 1965. In that Ac,t by Section 128 power was conferred upon the State Government and the Registrar to call for and examine the records of any enquiry or proceedings of any other matter, of any officer subordinate to them, for the purpose of satisfying themselves as to the legality or propriety of any decision or order passed by such officer. It was submitted by the counsel that Section 128 related to two authorities i.e. the State Government and the Registrar. In fact the two authorities are interchangeable. If one authority exercises revisional power, the other authority logically cannot have exercised such power. Hence, it was argued that second revision was not maintainable. Rejecting the submission this Court held:- \u201c20. Sub-section (2) of Section 124 provides that if the decision or order is made by the Registrar, appeal lies to the Government and if the decision or order is made by any other person, or a cooperative society, the appeal lies to the Registrar. Therefore, under Chapter XIII a clear distinction is made between the State Government and the Registrar. The test is whether the two authorities with concurrent revisional jurisdiction are equal in rank. It is, therefore, not correct as contended by learned counsel for the appellant that the two authorities i.e. the State Government and the Registrar are interchangeable. The power of the Government and the Registrar in terms of Section 128 excludes matters which are covered by Section 125 i.e. revision by the Tribunal.\u201d 32. Considering the entire scheme of the Code, and the provisions contained in Sections 257 and 259, we are of the definite opinion that the Minister concerned of the State Government can entertain second revision to satisfy the legality and propriety of the order passed by the Revenue Officer. The Division Bench of the Bombay High Court has elaborately discussed the question and passed the impugned order holding that Section 257 confers jurisdiction to the State Government to entertain its revision against the order passed by any Revenue Officer either in appeal or in revision. We find no infirmity in the impugned order passed by the High Court. Hence, this appeal has no merit which is accordingly dismissed. 33. Before parting with the order, we must make it clear that in view of the request made by the appellant before the High Court not to enter into the merit of the case since the party may prosecute their remedies in the Civil Court for adjudication, we have not expressed any opinion with regard to the merit of the case of the parties. The parties may prosecute their remedies in Civil Court in accordance with law. \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026.J. (M.Y. Eqbal) \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026.J. (C. Nagappan) New Delhi November 06, 2015",
        "1661941": "PETITIONER: GUJARAT ELECTRICITY BOARD & ANR. Vs. RESPONDENT: ATMARAM SUNGOMAL POSHANI DATE OF JUDGMENT31/03/1989 BENCH: SINGH, K.N. (J) BENCH: SINGH, K.N. (J) VENKATARAMIAH, E.S. (J) CITATION: 1989 AIR 1433 1989 SCR (2) 357 1989 SCC (2) 602 JT 1989 (3) 20 1989 SCALE (1)907 ACT: CIVIL SERVICES: Transfer--An incident of service-No employee has legal right to be posted at any particular place--Transfer--Necessary in public interest and efficiency of administration--No employee has right to be absent from duty without sanction of leave. PRACTICE AND PROCEDURE: Supreme Court--Transfer of case from one Bench to another--Entitlement too-Only when Bench is biased or there are other reasonable grounds--Not when a Judge expresses opinion on merits of case on conclusion of hearing. Indian Evidence Act, 1872: Section 114(e)--Registered cover sent to addressee presumption of service----When arises. HEADNOTE: The respondent joined service as technical assistant with the Gujarat State Electricity Board and was later promoted to the post of Deputy Engineer. While he was posted at Surat he was transferred to Ukai Sub-division under the order of the Superintending Engineer dated 29th March, 1974 and he was relieved from his duties at Surat on 30th March, 1974. He made representation to the Addl. Chief Engineer for cancelling his transfer order which was rejected and he was directed to join at Ukai but he did not do so and continued to be absent without sanction of any leave and instead he filed a civil suit challenging validity of the order of transfer. The Superintending Engineer by his letter dated 18th April, 1974 directed the respondent to show cause as to why action should not be taken against him for disobeying the order of transfer and also for unauthorised absence from duty in breach of service Regulation No. 113. The respondent failed to join his duty even after a warning. Thereafter the Superintending Engineer sent a letter dated 24th April, 1974 by registered cover which contained a warning but the same was returned back by the postal authorities with an endorse- ment that the addressee refused to accept the same. Meanwhile, the Chief Engineer by his order dated 27th May, 358 1974 discharged the respondent from service in accordance with service Regulation No. 113 as he had continued to remain absent from duty since 30th March, 1974. The respondent filed a writ petition before the High Court challenging the validity of the order of his discharge from service. A learned Single Judge of the High Court quashed the order of discharge but looking to the attitude of the respondent and continued conduct of disobedience of the orders of his superior he was not granted consequential reliefs. The respondent as well as the appellant-Board preferred Letter Patent Appeals. A Division Bench of the High Court dismissed the appeal of the appellant-Board and allowed the respondent's appeal upholding the order of discharge as illegal and void and directed the appellants to reinstate the respondent, to treat him in service, and to grant him benefits of incre- ments, seniority, and promotion. The Division Bench, howev- er, did not grant full back-wages but directed the Board to pay the respondent 50 per cent of back-wages. Against the order of the Division Bench of the High Court the appellants preferred an appeal to this Court by special leave. The appeal came up for hearing and advocates for both the parties were fully heard. Being satisfied that the Single Judge as well as Division Bench of the High Court committed error in allowing the writ petition of the re- spondent, this Court suggested to the counsel for the re- spondent that if he agreed the original writ petition of the respondent could be dismissed without directing him to refund the amount which he had already been paid by the appellants in pursuance to the orders of the High Court and of this Court. The bearing was adjourned to enable counsel to obtain instructions from the respondent. On the next hearing another counsel appeared on behalf of the respondent to argue on merits. The Court refused to hear fresh argu- ments as the hearing had already been completed. Thereupon, the respondent appeared in person to make his submissions which the Court refused as oral. hearing has already been completed. However, in the interest of justice the respond- ent was permitted to file written submissions. No written submissions were filed, instead the respondent adopted an unusual course by sending an application by post expressing his no confidence in the Bench of this Court with a prayer to transfer the case to some other Bench. The Court ignored the request of the respondent as it was unusual, uncalled for, and unjustified. 359 Allowing the appeal by special leave, this Court, HELD: No party is entitled to get a case transferred from one Bench to the other, unless the Bench is biased or there are some reasonable grounds for the same. but no right to get a case transferred to any other Bench, can legiti- mately be claimed merely because the Judges express opinion on the merits of the case on the conclusion of hearing. [362E] Transfer of a Government servant appointed to a particu- lar cadre of transferable posts from one place to other is an incident of service. No Government servant or employee of public undertaking has legal right for being posted at any particular place. Transfer from one place to other is gener- ally a condition of service and the employee has no choice in the matter. Transfer from one place to other is necessary in public interest and efficiency in the Public Administra- tion. [362H; 363A] Whenever, a public servant is transferred he must comply with the order but if there be any genuine difficulty in proceeding on transfer it is open to him to make representa- tion to the competent authority for stay, modification, or cancellation of the transfer order. If the order of transfer is not stayed, modified, or cancelled the concerned public servant must carry out the order of transfer. [363B] If he fails to proceed on transfer in compliance to the transfer order, he would expose himself to disciplinary action under the relevant Rules, as has happened in the instant case. The respondent lost his service as he refused to comply with the order of his transfer from one place to the other. [363C] No Government servant or employee of any public under- taking has a right to be absent from duty without sanction of leave, merely on account of pendency of representation against the order of transfer. [366B] There is presumption of service of a letter sent under registered cover, if the same is returned back with a postal endorsement that the addressee refused to accept the same. No doubt the presumption is rebuttable and it is open to the party concerned to place evidence before the Court to rebut the presumption by showing that the address mentioned on the cover was incorrect or that the postal authorities never tendered the registered letter to him or that there was no occasion for him to refuse the same. The burden to rebut the presumption lies on 360 the party, challenging the factum of service. [368B-C] In the instant case, the respondent's failure to join his duties at Ukai resulted in unauthorised absence and his failure to join his duties in spite of repeated reminders and letters issued to him constituted sufficient valid ground for taking action under Regulation No 113. Before issuing the order of discharge the respondent was not only warned but he was also afforded an opportunity to explain as to why disciplinary action should not be taken against him. The respondent acted in an irresponsible manner in. not complying with the order of transfer which led to his dis- charge from service in accordance with the Service Regula- tion No. 113. The Single Judge as well as the Division Bench both therefore erred. in law in setting aside the order of discharge. [368E-G] JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3561 of 1986. From the Judgment and Order dated 28.2.1986 of the Gujarat High Court in SCA No. 1176 of 1974. B .K. Mehta, Shishir Sharma and P.H. Parekh for the Appel- lants. Respondent-in-person. (N.P.) The Judgment of the Court was delivered by SINGH, J. This appeal is directed against the judgment and order of the High Court of Gujarat dated 28.2.1986 allowing the respondent's writ petition and quashing order of discharge from service and directing his reinstatement in service. The respondent joined service as technical assistant with the Gujarat State Electricity Board (hereinafter re- fened to as the Board). He was promoted to the post of Deputy Engineer. While he was posted at Surat as Deputy Engineer he was transferred to Ukai subdivision under the order of the Superintending Engineer dated 29th March, 1974. Pursuant to the order of transfer he was relieved from his duties at Surat on 30th March, 1974 to enable him to join at Ukai. He made representation to the Additional Chief Engi- neer for cancelling his transfer order on the ground that his mother aged 70 years was ailing and it would cause great inconvenience to him if he was required to join at Ukai. His representation was rejected and he was directed to join at Ukai but he did not do so instead he filed a civil suit at Baroda challenging validity of the order of trans- fer. Meanwhile, the Chief Engineer by his order dated 27th May, 1974 discharged the respondent from service with effect from 31st March, 1974 in accordance with service Regulation No. 113. The respondent challenged the validity of the order of his discharge from service by means of a writ petition under Article 226 of the Constitution before the High Court of Gujarat. A learned Single Judge of the High Court quashed the order of termination on the findings that the order of discharge was issued m violation of the basic principles of natural justice as no opportunity was afforded to the re- spondent before discharging him from services under Regula- tion No. 113. The learned Single Judge granted a declaration in respondent's favour holding the order void and illegal but having regard to recalcitrant attitude of the appellant and his continued conduct of disobedience of the orders of his superior authorities, he refused to grant consequential reliefs regarding reinstatement or payment of back-wages. The respondent as well as the appellant-board, both pre- ferred Letters Patent appeals against the order of learned Single Judge. A Division Bench of the High Court dismissed the appeal preferred by the Appellants but it allowed the respondent's appeal. The Division Bench upheld the order of the learned Single Judge holding the order of discharge illegal and void but it set aside the order of the learned Single Judge refusing to grant consequential relief instead it directed the appellants to reinstate the respondent, and to treat him in service without any break in service and to grant him benefits of increments, seniority, and promotion to which he may be entitled under the rules. The Bench, however, did not grant full back-wages to the respondent instead it directed the Board to pay him 50 per cent of back-wages. Aggrieved, the appellant has preferred the instant appeal after obtaining special leave of this Court. This appeal came up for hearing before us on 28th Janu- ary, 1988 and on that day Sh. B.K. Mehta, Advocate appearing for the appellants and Sh. Vimal Dave, Advocate, appearing for the respondent were fully heard. After hearing learned counsel for the parties we were satisfied that the learned Single Judge as well as the Division Bench both had commit- ted error in allowing the writ petition and granting relief to the respondent. We expressed our view in the Court and suggested to Mr. Vimal Dave, counsel for the respondent, that if he agreed the original writ petition of the respond- ent could be dismissed without directing him to refund the amount which he had already been paid by the appellants in pursuance to the orders of the High Court and of this Court as during the pendency of the appeal, the appellants were directed by means of interim order of this Court to continue to pay salary to the respondent which was being paid to him regularly. The hearing was adjourned to enable Sh. Vimal Dave, to obtain instructions from the respondent. The appeal came up for hearing before us on 16.2.1988 when another counsel appeared to argue the appeal on behalf of the respondent on merits. We refused to hear the counsel as we had already completed hearing. Thereupon, the respondent himself appeared in person and sought permission to make his submissions personally. We refused to accede to his request as oral heating had already been completed and the matter had been adjourned only to enable the respondent's counsel to obtain instructions. However, in the interest of justice we permitted the respondent to file written submissions. if any, in support of his case. Thereafter, the case was listed several times but no written submissions were filed instead the respondent adopted an unusual course by sending an application by post expressing his no confidence in us with a prayer to transfer the case to some other Bench. Since this was unusual, uncalled for and unjustified request we ignored the same and reserved the order. We are constrained to note that instead of utilising the opportunity granted to him for filing written submissions the respondent has mis- used adjournments for the purposes of raising frivolous objections for getting the case transferred to some other Bench. No party is entitled to get a case transferred from one Bench to the other, unless the Bench is biased or there are some reasonable grounds for the same, but no right to get a case transferred to any other Bench, can legitimately be claimed merely because the judges express opinion on the merits of the case on the conclusion of hearing. In the instant case on the conclusion of the oral hearing we had expressed our opinion on 28.1.1988 in the open court, that we were inclined to allow the appeal and set aside the order of the High Court and dismiss the writ petition but taking a sympathetic view we requested Sh. Vimal Dave, learned coun- sel appearing for the respondent to obtain instructions as aforesaid. The opportunity granted to the respondent has, however, been misused by raising mischievous and frivolous objections instead of filing written submissions. The re- spondent's prayer is accordingly rejected and since oral hearing has already been completed, and in spite of several adjournments respondent failed to appear before the Court or to file the written submissions we proceed to decide the case on merits. Transfer of a Government servant appointed to a particu- lar cadre of transferable posts from one place to the other is an incident of service. No Government servant or employee of Public Undertaking has legal tight for being posted at any particular place. Transfer from one place to other is generally a condition of service and the employee has no choice in the matter. Transfer from one place to other is necessary in public interest and efficien- cy in the Public administration. Whenever, a public servant is transferred he must comply with the order but if there be any genuine difficulty in proceeding on transfer it is open to him to make representation to the competent authority for stay, modification or cancellation of the transfer order. If the order of transfer is not stayed, modified or cancelled the concerned public servant must carry out the order of transfer. In the absence of any stay of the transfer order a public servant has no justification to avoid or evade the transfer order merely on the ground of having made a repre- sentation, or on the ground of his difficulty in moving from one place to the other. If he fails to proceed on transfer in compliance to the transfer order, he would expose himself to disciplinary action under the relevant Rules, as has happened in the instant case. The respondent lost his serv- ice as he refused to comply with the order of his transfer from one place to the other. There is no dispute that the respondent was holding a transferable post and under the conditions of service ap- plicable to him he was liable to be transferred and posted at any place within the State of Gujarat. The respondent had no legal or statutory right to insist for being posted at one particular place. In fact, during the tenure of his service in the Board the respondent had been transferred from one place to an other place several times. In March, 1974 he was transferred . from Surat to Ukai. The distance between the two places as was stated before us during the hearing of the case is less than 50 kms. He was relieved from his duties at Surat on 30th March, 1974 but he did not join at Ukai till the impugned order of discharge was issued on May 27, 1974. The Chief Engineer who discharged the respondent's services exercised his power under Service Regulation No. 113, which runs as under: \"113. The continued absence from duty or overstay, m spite of warning, to return to duty shall render the employee liable to summarily discharge from service without the necessity of proceedings under the Gujarat Electricity Board, Conduct, Discipline and Appeal Procedure.\" The above Rule provides that if an employee of the Gujarat Electricity Board continues to remain absent from duty or overstays the period of sanctioned leave and in spite of warning, he fails to return to duty, he renders himself liable to be discharged summarily from service without complying with the procedure prescribed for taking discipli- nary action, under the Gujarat Electricity Board, Conduct, Discipline and Appeal Procedure. Regulation 113 confers wide powers on the authorities to summarily discharge an employee from service, if he continues to be absent from duty in an unauthorised manner and refuses to join his duty even after warning. Under the disciplinary rules detailed procedure is required to be followed for removing an employee from serv- ice but Regulation 113 provides for summary discharge from service. Before this power is exercised, two conditions must be satisfied; Firstly, the employee must be found to be absent from duty without leave or overstaying the period of sanctioned leave, and secondly, he failed to join his duty even after a warning. The object and purpose of giving warning is to remind the delinquent employee that if he continues to be absent from duty he would be liable to action under Regulation 113 and to afford him an opportunity to make amends by joining his duty. If even thereafter he fails to join duty, his services are liable to be terminated by an order of discharge. It is noteworthy that the validity of Regulation 113 was not challenged before the High Court and the parties proceeded on the assumption that Regulation 113 was valid and applicable to the respondent's service. The Chief Engineer discharged the respondent from service as he had continued to remain absent from duty w.e.f. March 30, 1974 to May 27, 1974. The Division Bench of the High Court held that no warning as contemplated by service Regulation No. 113 had been issued to the respondent nor he had been afforded any opportunity of showing cause before the im- pugned order of discharge was passed and consequently, the order of discharge was null and void being contrary to service Regulation No. 113 itself. On perusal of the materi- al on record we are of the opinion that the view taken by the High Court is not sustainable as there is sufficient material on record which shows that warning had been issued to the respondent before the order of discharge was issued. In determining the question whether any warning was given to the respondent it is necessary to refer to the sequence of events and the correspondence which ensued between the appellants and the respondent. On March 29, 1974 the Superintending Engineer of the Board issued the order, transferring the respondent from Surat to Ukai, on 30.3.1974 the respondent was relieved from Surat and directed to join his duty at Ukai, but the respondent did not join his duty at the new place of posting. Instead he made a representa- tion to the Additional Chief Engineer on 8.4.1974 after the transfer order. The Transfer order was not stayed and as the respondent did not join his duties, he continued to be absent without sanction of any leave. In this situation the Superintending Engineer by his letter dated 18th April, 1974 directed the respondent to show cause as to why action should not be taken against him for disobeying the order of transfer and also for unautho- rised absence from duty in breach of service Regulation No. 113. The letter is as under: \"GUJARAT ELECTRICITY BOARD O & M DIVISION Nana Varchha Road Surat. Dated 18th April, 1974 To Shri A.S. Pohani Junior Engineer, Ukai 37, Gurunagar Society Near Jakat Naka, Surat-3. Sub: Transfer from Surat to Ukai. You have been relieved on 30.3.1974 A.N. on account of your transfer from Surat to Ukai, but you have not reported to Ukai till today and remained on unauthorised absence on re- lief, which is breach of S.R. No. 112 and 113. Please submit your explanation as to why action should not be taken against you for disobeying order of superior and breach of S.R. No. 112 and 113 within 7 days from re- ceipt of this letter. Sd/-Execut ive Engineer (O & M) Surat Copy f.w.c.s. to Superintending Engineer, GEB, Utran.\" There is no dispute that the respondent received the afore- said letter as he sent a reply to the Superintending Engi- neer on April 20, 1974, a copy of which was annexed as Annexure 'J' by the petitioner, to his petition before the High Court. By that letter respondent stated that he was waiting for the decision of his represen- tation made for reconsideration of his transfer from Surat to Ukai and therefore, the question of his remaining on unauthorised leave was misconceived. Since the respondent had not obtained any sanctioned leave for his absence his absence from duty was unauthorised. No Government servant or employee of any public undertaking has a right to be absent from duty without sanction of leave, merely on account of pendency of representation against the order of transfer. Since the respondent continued to be absent from duty the Superintending Engineer by a registered post acknowledgment due letter dated April 24, 1974 informed the respondent that his request to postpone his transfer was rejected and he was directed to join his duty at Ukai and on his failure to do so disciplinary action would be taken against him. The Establishment Officer (P) of the Board, also informed the respondent by his letter dated May 6, 1974 that his repre- sentation against the order of transfer was not accepted and he was directed to obey the order of transfer. A copy of the letter filed by the petitioner himself as Annexure 'K' to the writ petition in the High Court. But even thereafter, the respondent did not join his duties. Ultimately, the Chief Engineer of the Board took action against the respond- ent and discharged him from service with effect from 31.3.1974 by his letter dated May 27, 1974. The sequence of events and the correspondence which ensued between the officers of the Board and the respondent clearly show that the respondent disobeyed the order of transfer and he re- mained absent from duty in an unauthorised manner without obtaining sanction of leave. The aforesaid documents leave no room for any doubt that the respondent was reminded of his failure to join his duties at Ukai and he was further reminded that his unauthorised absence had exposed him to disciplinary action. In fact, the Superintending Engineer had by his letter dated 18th April, 1974 clearly reminded the respondent that his unauthorised absence was in breach of Service Regulation No. 113 and called upon to show cause why action should not be taken against him but in spite of these letters the respondent failed to join his duties. The Division Bench of the High Court has held that since no warning was issued to the respondent action taken under Service Regulation No. 113 was not in accordance with law. This finding is wholly misconceived. A warning need not be in any particular form. The object and purpose of the warn- ing as contemplated by the Regulation,. is to remind the delinquent employee that his continued unauthorised absence from duties was liable to result in discharge of his serv- ice. The substance of the Superintending Engineer's letter dated 18th April, 1974 which was admittedly served on the respondent, contained warning to the respondent, which fully met the requirement of Regulation No. 113. Before the High Court a controversy was raised as to whether the registered letter dated 24.4.1974 addressed by the Superintending Engineer to the respondent was received by him or not. The registered cover, containing the letter dated 24.4.1974 was returned back by the postal authorities with an endorsement that the addressee refused to accept the same. The respondent's case was that no such registered letter was tendered to him by the postman nor he ever re- fused to accept the same. The Division Bench held that letter dated 24.4.1974 which contained a warning had not been served on the respondent and since the Board had failed to raise the question before the learned Single Judge it could not do so in the letters patent appeal. The Division Bench further held that since the letter dated 24.4.1974 was not served on the respondent, there was no material to show that any warning had been issued to the respondent before he was discharged from service. We do not agree with the view taken by the Division Bench. Firstly, even if the letter dated 24.4.1974 was not served on the respondent there is no dispute that the Superintending Engineer's letter dated 18th April, 1974 had been served on him. By that letter warning as contemplated by Regulation No. 113 had been issued to the respondent. Therefore even if the letter dated 24.4.1974 was not served on the respondent the order of discharge as contemplated by Regulation No. 113 is sustainable in law. But even otherwise, the Division Bench committed error in holding that the Board had raised the question of service of the letter dated 24.4.1974 for the first time before the Division Bench in the letters patent appeal. Perusal of the averments made in paragraphs 17, 18, 23 and 25 (2)(ii) of the counter-affidavit filed in reply to the petitioner's writ petition before the learned Single Judge shows that the Board had categorically pleaded that the respondent was informed by letter dated 24.4.1974 that his representation to postpone his transfer was rejected and he should obey the order of transfer. It was further pleaded that the respond- ent had refused to accept the registered letter and the same had been returned back by the postal authorities with an endorsement that the addressee refused to accept the same. In his rejoinder affidavit the respondent denied the afore- said allegations and asserted that the letter was not ten- dered to him and he never refused to accept the registered cover and the postal endorsement was wrong and incorrect. Apart from denying the postal endorsement, the respondent placed no material before the Court in support of his plead- ing. In this view, we are of the opinion that the Division Bench was totally wrong in holding that no opportunity was afforded to the respondent to meet the case set up by the Board that the letter dated 24.4.1974 was served on the respondent. No new plea had been raised by the Board before the Division Bench instead the plea relating to service of the aforesaid letter had already been before the learned Single Judge. There is presumption of service of a letter sent under registered cover, if the same is returned back with a postal endorsement that the addressee refused to accept the same. No doubt the presumption is rebuttable and it is open to the party concerned to place evidence before the Court to rebut the presumption by showing that the address mentioned on the cover was incorrect or that the postal authorities never tendered the registered letter to him or that there was no occasion for him to refuse the same. The burden to rebut the presumption lies on the party, challenging the factum of service. In the instant case the respondent failed to dis- charge this burden as he failed to place material before the Court to show that the endorsement made by the postal au- thorities was wrong and incorrect. Mere denial made by ,the respondent in the circumstances of the case was not suffi- cient to rebut the presumption relating to service of the registered cover. We are, therefore, of the opinion that the letter dated 24.4.1974 was served on the respondent and he refused to accept the same. Consequently,the service was complete and the view taken by the High Court is incorrect. In view of the above discussion, we therefore hold that the respondent's failure to join his duties at Ukai resulted in unauthorised absence and his failure to join his duties in spite of the repeated reminders and letters issued to him constituted sufficient valid ground for taking action under Regulation No. 113. We further hold that before issuing the order of discharge the respondent was not only warned but he was also afforded an opportunity to explain as to why disci- plinary action should not be taken against him. The respond- ent acted in an irresponsible manner in not complying with the order of transfer which led to his discharge from serv- ice in accordance with the Service Regulation No. 113. The learned Single Judge as well as the Division Bench both erred in law in setting aside the order of discharge. We, accordingly, allow the appeal, set aside the order of the Single Judge as well as Division Bench and dismiss the respondent's petition. There would be no order as to costs. The respondent has been paid a sum of Rs. 1,04,170 towards salary under the interim orders of this Court. Now, since the order of discharge is held to be valid the amount paid to the re- spondent is liable to be recovered from him, but having regard to the facts and circumstances of the case and the hardship which could be caused to the respondent, we direct the appellant not to recover the amount already paid to the respondent. S.K.A. Appeal al- lowed.",
        "1622258": "PETITIONER: LAKSHMANA NADAR AND OTHERS Vs. RESPONDENT: R. RAMIER. DATE OF JUDGMENT: 14/04/1953 BENCH: MAHAJAN, MEHR CHAND BENCH: MAHAJAN, MEHR CHAND DAS, SUDHI RANJAN CITATION: 1953 AIR 304 1953 SCR 848 ACT: Hindu law-Will--Bequest to wife for her lifetime and to daughter absolutely after wife's lifetime-Estate taken by wife-Whether ordinary life estate or Hindu widow's estate -Daughter's estate-Whether vested-Death of daughter before widow, effect of -Construction of Hindu will-Guiding principles. HEADNOTE: A Hindu Brahmin governed by the Mitakshara law made a will in which he gave the following directions: \" After my life- time, you, the aforesaid Ranganayaki Ammal, my wife, shall till your lifetime enjoy the aforesaid entire properties ... After your lifetime, Ramalakshmi Ammal, our daughter and her heirs shall enjoy them with absolute rights and powers of alienation such as gift, exchange and sale from son to grandson and so on for generations. As regards the payment of maintenance to be made to C, wife of my late son, H, my wife Ranganayaki Ammal shall pay the same as she pleases and obtain a release deed.\" After the death of the testator his wife entered into possession of his properties but before the death of his wife, his daughter and all her children died: Held, (i) that on a proper construction of the will in the light of surrounding circumstances, the testator bad conferred on his 849 wife only an ordinary life estate, and alienations made by her would not endure beyond her lifetime ; (ii) that the testator's daughter obtained under the will a vested interest in the properties after the lifetime of the widow, to which her husband succeeded on her death. The rule of construction by analogy is a dangerous one to follow in construing wills differently worded, and executed in different surroundings. Ram Bahadur v. Joger Nath Prasad (3 Pat. L.J. 199), Pavani Subbamma v. Arumala Rama Naidu ([1937] 1 M.L.J. 268), Nathu Rain Mahajan v. Ganga Bai ([1938] 2 M.L.J. 562), Vasanta Rao Ammennamma v. Venkata Kodanda Rao ([1940] 1 M.L.J. 188), Maharaja of Kolhapur v. Sundaram Iyer (I.L.R. 48 Mad. 1), Mahoned Shumsool v. Shewakram (2 I.A. 7), Ratna Chetty v. Narayana swami Chetty (26 M.L.J. 616), Mst. Bhagwati Devi v. Choudry Bholonath Thakur (2 I.A. 256) and Lallu v. Jagmohan (I.L.R. 22 Bom. 409) referred to. Judgment of the Madras High Court affirmed. JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 95 of 1952. Appeal from the judgment and decree dated the 27th February, 1950, of the High Court of Judicature at Madras (Rao and Ayyar JJ.) in Appeal No. 635 of 1946 arising, out of judgment and decree dated the 13th August, 1946, of the Court of the Subordinate Judge of Tinnevelly in Original Suit No. 50 of 1945. K. S. Krishnaswamy Iyengar (S. Ramachandra with him) for the appellants. K. Rajah Iyer (R. Ganapathy Iyer, with him) for the respondent. 1953. April 14. The Judgment of the Court was delivered by MAHAJAN J.-- One Lakshminarayana Iyer, a Hindu Brahmin, who owned considerable properties in the Tirunelveli district, died on 13th December, 1924, leaving him surviving a widow Ranganayaki, and a married daughter Ramalakshmi. Ramalakshmi had married the plaintiff and had a number of children from him. They were all alive in December, 1924, when Lakshminarayana died, Before his death he executed a will on 16th November, 1924, the construction of which is in controversy in this appeal. By this will he gave the following directions -- \"After my lifetime, you, the aforesaid Ranganayaki Amminal, my wife, shall till your lifetime, enjoy the aforesaid entire properties, the outstandings due to me, the debts payable by me, and the chit amounts payable by me. After your lifetime Ramalakshmi Ammal, our daughter and wife of Rama Ayyar Avergal of Melagaram village, and her heirs shall enjoy them with absolute rights and powers of alienation such as gift, exchange, and sale from son to grandson and so on for generations. As regards the payment of maintenance to be made to Chinnanmal alias Lakshmi Ammal, wife of my late son Hariharamayyan, my wife Ranganayaki Ammal shall pay the same as she pleases, and obtain a release deed\". Ranganayaki entered into possession of the properties on the death of her husband. On 21st February, 1928, she settled the maintenance claim of Lakshmi Ammal and obtained a deed of release from her by paying her a sum of Rs. 3,350 in cash and by executing in her favour an agreement stipulating to pay her a sum of Rs. 240 per annum. Ramalakshmi died on 25th April, 1938 during the lifetime of the widow. None of her children survived her. On the 24th July, 1945, the widow describing herself as an absolute owner of the properties of her husband sold one of the items of the property to the 2nd defendant for Rs. 500. On the 18th September, 1945, the suit out of which this appeal arises was instituted by the plaintiff, the husband and the sole heir of Ramalakshmi, for a declaration that the said sale would not be binding on him beyond the lifetime of the widow. A prayer was made that the widow be restrained from alienating the other properties in her possession. On the 19th September, 1945, an ad interim injunction was issued by the High Court restraining the widow from alienating the properties in her possession and forming part of her husband's estate, In spite of this injunction, on the 27th September, 1945, she executed two deeds of settlement in favour of the other defendants comprising a number of properties. The plaintiff was allowed to amend his plaint and include therein a prayer for a declaration in respect of the invalidity of these alienations as well. It was averred in the plaint that Ramalakshmi obtained a vested interest in the suit -properties under the will of her father and plaintiff was thus entitled to maintain the suit. The defendants pleaded that the plaintiff had no title to maintain the suit, that the widow was entitled under the will to an absolute estate or at least to an estate analogous to and not less than a widow's estate, that the estate given to Ramalakshmi under the will was but a contingent one and she having predeceased the widow, no interest in the suit properties devolved on the plaintiff. The main issue in the suit was whether- the widow took under the will an absolute estate or an estate like the Hindu widow's estate and whether the daughter's interest therein was in the nature of a contingent remainder, or whether she got in the properties a vested interest. The subordinate judge held that the widow took under the will a limited life, interest, and not an absolute estate or even a widow's estate under Hindu law, and that the daughter got thereunder a vested interest in the properties to which the plaintiff succeeded on her death. In view of this finding he granted the plaintiff a declaratory decree to the effect that the first defendant had only an estate for life in the suit properties and that the alienations made by her would not enure beyond her lifetime. The question as to the validity of the alienations was left undetermined. The unsuccessful defendants preferred an appeal against this decree to the High Court of Judicature at Madras. During the pendency of the appeal the widow died on 14th February, 1948. The High Court by its judgment under appeal affirmed the decision of the trial judge and maintained his view on the construction of the will. Leave to appeal to the Supreme Court was granted and the appeal was admitted on the 27th November, 1951. The substantial question to decide in the appeal is whether the estate granted by the testator to his widow was a fall woman's estate under Hindu law or merely a limited life estate in the English sense of that expression. It was not contested before us that a Hindu can by will create a life estate, or successive life estates, or any other estate for a limited term, provided the donee or the persons taking under it are capable of taking under a deed or will. The decision of the appeal thus turns upon the question whether the testator's intention was to give to his widow ail ordinary life, estate or an estate analogous to that of a Hindu widow. At one time it was a moot point whether a Hindu widow's estate could be created by will, it being an estate created by law, but it is now settled that a Hindu can confer by means of a will oil his widow the same estate which she would get by inheritance. The widow in such a case takes as a demisee and not as an heir. The court's primary duty in such cases is to ascertain from the language employed by the testator \"what were his intentions\", keeping in view the surrounding circumstances, his ordinary notions as a Hindu in respect to devolution of his property, his family relationships etc.; in other words, to ascertain his wishes by putting itself, so to say, in his armchair. Considering the will in the light of these principles,it seems to us that Lakshminarayan Iyer intended by his will to direct that his entire properties should be enjoyed by his widow during her lifetime but her interest in these properties should come to an end on her death, that all these properties in their entirety should thereafter be enjoyed as absolute owners by his daughter and her heirs with powers of alienation, gift, exchange and sale from generation to generation. He wished to make his daughter a fresh stock of descent so that her issue, male or female, may have the benefit of his property. They were the real persons whom he earmarked with certainty as the ultimate recipients of his bounty. In express terms he conferred on his daughter powers of alienation byway of gift, exchange, sale, but in sharp contrast to this, on his widow he conferred no such powers. The direction to her was that she should enjoy the entire properties including the outstandings etc. and these shall thereafter pass to her daughters. Though no restraint in express terms was put on her powers of alienation in case of necessity, even that limited power was not given to her in express terms. If the testator had before his mind's eye his daughter and her heirs as the ultimate beneficiaries of his bounty, that intention could only be achieved by giving to the widow a limited estate, because by conferring a full Hindu widow's estate on her the daughter will, only have a mere spes successions under the Hindu law which may or may not mature and under the will her interest would Only be a contingent one in what was left indisposed of by the widow. It is significant that the testator did not say in the will that the daughter will enjoy only the properties left indisposed of by the widow. The extent of the grant, so far as the properties mentioned in the schedule are concerned, to the daughter and the widow is the same. Just as the widow was directed to enjoy tile entire properties mentioned in the schedule during her lifetime in like manner the daughter and her heirs were also directed to enjoy the same properties with absolute rights from generation to generation. They could not enjoy the same properties in the manner directed if the widow had a full Hindu widow's estate and had the power for any purpose to dispose of them and did so. If that was the intention, the testator would clearly have said that the daughter would only take the properties remaining after the death of the widow. The widow cannot be held to have been given a full Hindu widow's estate under the will unless it can be said that under its terms she was given the power of alienation for necessary purposes, whether in express terms or by necessary implication. As above pointed out, admittedly power of alienation in express terms was not conferred on her. It was argued that such a power was implicit within the acts she was authorized to do, that is to say, when she was directed to pay the debts and settle the maintenance of Ramalakshmi it was implicit within these directions that for these purposes, if necessity arose, she could alienate the properties. This suggestion in the surrounding circumstances attending the execution of this will cannot be sustained. The properties disposed of by the will and mentioned in the schedule were considerable in extent and it seems that they fetched sufficient income to enable the widow to fulfil the obligations under the will. Indeed we find that within four years of the death of the testator the widow was able to pay a lump sum of Rs. 3,350 in cash to the daughter-in-law without alienating any part of the immovable properties and presumably by this time she had discharged all the debts. It is not shown that she alienated a single item of immovable property till the year 1945, a period of over 21 years after the death of her husband, excepting one, which she alienated in the year 1937 to raise a sum of Rs. 1,000 in order to buy some land. By this transaction she substituted one property by another. For the purpose of her maintenance, for payment of debts etc., and for settling the claim of the daughter-in-law she does not appear to have felt any necessity to make any alienation of any part of the estate mentioned in the schedule and the testator in all likelihood knew that she could fulfil these obligations without having recourse to alienations and hence he did not give her any power to do so. In this situation the inference that the testator must have of necessity intended to confer on the widow power of alienation for those limited purposes cannot be raised. In our opinion, even if that suggestion is accepted that for the limited purposes mentioned in the will the widow could alienate, this power would fall far short of the powers that a Hindu widow enjoys under Hindu law. Under that law she has the power to alienate the estate for the benefit of the soul of the husband, for pilgrimage and for the benefit of the estate and for other authorized purposes. It cannot be said that a Hindu widow can only alienate her husband's estate for payment of debts, to meet maintenance charges and for her own maintenance. She represents the estate in all respects and enjoys very wide power except that she cannot alienate except for necessity and her necessities have to be judged on a variety of considerations. We therefore hold that the estate conferred on Ranganayaki Ammal was more like the limited estate in the English sense of the term than like a full Hindu widow's estate in spite of the directions above- mentioned. She had complete control over the income of the property during her lifetime but she had no power to deal with the corpus of the estate and it had to be kept intact for the enjoyment of the daughter. Though the daughter was not entitled to immediate possession of the property it was indicated with certainty that she should get the entire estate at the proper time and she thus got an interest in it on the testator's death. She was given a present right of future enjoyment in the property. According to Jarman (Jarman on Wills), the law leans in favour of vesting of estates and the property disposed of belongs to the object of the gift when the will takes effect and we think the daughter got under this will a vested interest in the testator's properties on his death. It was strenuously argued by Mr. K. S. Krishnaswami Iyengar that Lakshminarayana Iyer was a Brahmin gentleman presumably versed in the sastras, living in a village in the southernmost part of the Madras State, that his idea of a restricted estate was more likely to be one analogous to a Hindu woman's estate than a life estate a,-, understood in English law wherein the estate is measured by use and not by duration, and that if this will was construed in the light of the notions of Lakshminarayana Iyer it should be held that the widow got under it a Hindu widow's estate and the daughter got under it a contingent remainder in the nature of spes and on her death there was nothing which could devolve on the plaintiff and he thus had no locus standi to question the alienations made by the widow, The learned counsel in support of his contention drew our attention to a number of decisions of different High Courts and contended that the words of this will should be construed in the manner as more or less similar words were construed by the courts in the wills dealt with in those decisions. This rule of construction by analogy is a dangerous one to follow in construing wills differently worded and executed in different surroundings. [Vide Sasiman v. Shib Narain (1)]. However, out of respect for learned counsel on both sides who adopted the same method of approach we proceed to examine some of the important cases referred to by them. Mr. Krishnaswami Iyengar sought to derive the greatest support for his contention from the decision in Ram Bahadur v. Jager Nath Prasad (2 ). The will there recited that if a daughter or son was born to the testator during his lifetime, such son or daughter would be the owner of all his properties but if there was no son or daughter, his niece S. would get a bequest of a lakh of rupees, and the rest of the movable and immovable properties would remain in possession of his wife until her death, and after her these would remain in possession of his niece. The remainder was disposed of in the following words: - \"If on the death of my wife and my niece there be living a son and a daughter born of the womb of my said brother's daughter, then two-thirds of the movable property will belong to the son and one-third to the daughter. But as regards the immovable property none shall have the lest right of alienation. They will of course be entitled to enjoy the balance left after payment of rent\". This will was construed as conveying an absolute estate to the son and the daughter of the niece. It was remarked that in spite of an. express restriction against alienation, the estate taken by S. (the niece) was an estate such as a woman ordinarily acquires by inheritance under the Hindu law which she holds in a completely representative character but is unable to (1) 491. A. 2 5. (2) 3 Pat. L. J. 199. alienate except in case of legal necessity and that such a construction was in accordance with the ordinary notions that a Hindu has in regard to devolution of his property. The provisions contained in this will bear no analogy to those we have to construe. The restraint against alienation was repugnant to both a life estate and a widow',-, estate and was not, therefore, taken into account. But there were other indications in that will showing that a widow's estate had been given. The fact that the gift over was a contin- gent bequest was by itself taken as a sure indication that the preceding bequest was that of a widow's estate. There is no such indication in the will before us. Reliance was next placed on the decision in Pavani Subbamma v. Ammala Rama Naidu (1). Under the will there dealt with, the widow S, was to enjoy the properties and after her lifetime the properties were to be taken in the ratio of three to five by the son's daughter and the daughter's son respectively. A suit was instituted by the son's daughter for the recovery of possession of her share in one item of property forming, part of the estate which had been sold by S. The question for decision in that case was whether S. was at all entitled to sell anything more than her life interest even for purposes of meeting a necessity binding upon the estate. Varadachari J. held that since in the will the gift over to the grand-children was of the entire Properties, and not a mere gift by way of defeasance, it had to be held that it indicated that the prior gift in favour of the widow was only of a limited interest. This decision therefore goes against the contention of the learned counsel but he placed reliance on the observations made in the judgment when the learned Judge proceeded to say \" In deference to the view taken in Maharaja of Kolhapur v. sundaram Iyer (2), it may be possible to create an interest analogous to a woman's estate in Hindu law notwithstanding the addition of a gift over and that the estate taken by S. need not necessarily be only a life estate in the English law (1) (1937) 1 M.L.J. 268. (2) (1925) I.L.R. 48 Mad. 1. sense of the term.\" We do not understand how such passing observations can be helpful in deciding the present case. Assuming that it is possible to create a Hindu woman's estate not with standing the addition of a gift over, the question nevertheless whether that had been done in a given case must depend on the terms of the particular instrument under consideration. The following remarks in the Privy Council decision in Nathu, Ram Mahajan v. Gangayabai(1) were next cited:-- As the will gave her the right to 'enjoy' the income of the estate during her lifetime, it was evidently contemplated that she should, as provided by -the Hindu law in the case of a widow, be in possession of the estate.\" Such casual observation made in respect of a will couched in entirely different terms cannot afford much assistance in the decision of the case. In Vasantharao Ammannamma v. Venkata Kodanda Rao Pantalu(2), the next case cited, a Hindu testator who was a retired subordinate judge provided by his will as follows:---- \"Out, of the aforestated ancestral lands, the oneninth share to which I am entitled shall be enjoyed after my death by my wife till her death, and after her death it shall pass to S. son of my second elder brother deceased. My self-acquired properties shall on my death be enjoyed by my wife till her death and after her death they shall pass to my daughter. Thereafter they shall pass to my grandson through my daughter\". The will was construed as giving the self-acquired properties ultimately to the grandsons, and the estate of the daughter was likened to an estate which she would take- under the law of inheritance, that is a limited estate analogous to a widow's estate. At page 193 of the report it was observed as follows :---- \"The question therefore arises, did he intend to confer only a life estate or a daughter's estate ? It seems (1) (1938) 2 M.L.J. 562. (2) (1940) M.L.J. 188, to us that he meant to give a daughter's estate rather than a life estate. He omits the words 'during her life' with reference to the disposition in favour of the daughter. The words 'pass to my daughter' would rather indicate that in the ordinary course of devolution the estate should pass to her, that is, the daughter and then to the grandsons. The words used in favour of the grandsons seem to indicate that the estate conferred on the daughter was not a life estate because there is no direct gift in favour of the grandsons, but on the other hand, what he says is that through his daughter the estate shall pass to his grandsons. Either he must have intended that the daughter should convey the property either by will or inter vivos to the grandsons or she having taken the estate, through her it should pass to the grandsons in the ordinary course of devolution. If it was the daughter's estate that was intended to be conferred, there can be no question that the estate taken by the grandsons is not a vested interest\". This line of reasoning which appealed to the learned judges is not of much he]-) to us here as the language hi this will is quite different. If the same line of reasoning is adopted here, the decision of the case would go against the client of Mr. K. S. K. Iyengar because in the will in this case the widow's estate is delimited by the words \" till your lifetime.\" Reliance was next placed on Maharaja of Kolhapur v. Sundaram Iyer (1). That was a case of a government grant on the special terms set out therein and the question arose as to the nature of the grant. There it was said that \" the widows of Sivaji Raja got the gift of a life estate very much resembling the ordinary estate of a Hindu widow and with all the incidents of a widow's estate except the liability to be divested, but nevertheless a life estate rather than an estate of inheritance.\" These remarks do not throw much light on the point before us. The last decision referred to was the decision of the Privy Council in Mahomed Shumsool v. Shewukram(2) There a Hindu inhabitant of Bihar by a document of (1) (1925) I.L.R. 48 Mad. 1. (2) (1874-75) 2 I.A. 7. a testamentary character declared his daughter who had two daughters, as his heir, and after her two daughters together with their children were declared heirs and malik. One daughter of the daughter predeceased the testator without issue and the other daughter died after the death of the testator leaving an only son, the respondent in that case. In a suit by the respondent against his grandmother the daughter of the 'testator for a declaratory order preserving unmolested his future right and title to the said lands, it was held that the daughter took an estate subject to her daughters succeeding her. In this judgment the following observations were emphasized as relevant to this enquiry :- \" It has been contended that these latter expressions qualify the generality of the former expressions, and that the will, taken as a whole, must be construed as intimating the intention of the testator that Mst. Rani Dhun Kaur should not take an absolute estate, but that she should be succeeded in her estate by her two daughters. In other words, that she should take an estate very much like the ordinary estate of a Hindu widow. In construing the will of a Hindu it is not improper to take into consideration what are known to be the ordinary notions and wishes of Hindus with respect to the devolution of property. It may be assumed that a Hindu generally desires that an estate, especially an ancestral estate, shall be retained in his family; and it may be assumed that a Hindu knows that, as a general rule, at all events, women do not take absolute estates of inheritance which they are enabled to alienate.\" These observations are unexceptionable but it may also be pointed out that it is open to a Hindu to confer a limited life estate on his widow or even a larger estate than a widow takes as an heir and that in every case he may not confer upon her by will a Hindu widow's estate which she would otherwise get by inheritance. Generally speaking, there will be no point in making a will if what is to be given to a widow is what she would get on intestacy and cases do arise where a Hindu wishes to give to his widow a more restricted estate than she would get on intestacy or a much larger estate than that. The question in every case cannot be determined merely on the theory that every Hindu thinks only about a Hindu widow's estate and no more. What is given must be gathered from the language of the will in the light of the surrounding circumstances. The learned counsel for the respondent followed the line adopted by Mr. Krishnaswami Iyengar. He also on the analogy of other wills and the decisions given on their terms wanted a decision on the construction of this will in his favour. In the first instance, he placed reliance on a decision of the Madras High Court in Ratna Chetty v. Narayana swami Chetty(1). There the testator made a will in favour of his wife providing, inter alia, \"all my properties shall after my death be in possession of my wife herself and she herself should be heir to everything and Mutha Arunachala Chetty (nephew) and my wife, should live together amicably as of one family. If the two could not agree and live together amicably, my wife would pay Rs. 4,000 and separate him and then my wife would enjoy all the remaining properties with absolute rights. If both of them would live together amicably, Muthu Arunachala Chetty himself would enjoy the properties which remain after the death of the widow.\" It was held upon the construction of the will that the nephew, who lived amicably with the widow till his death, had a vested interest at testator's death which could not be defeated by a testamentary disposition by the widow in favour of a stranger. This decision only decides that case and is not very relevant in this enquiry. Reference was also made to the decision of their Lordships of the Privy Council in Mst. Bhagwati Devi v. Chowdry Bholonath Thakur(2). This was a case of a gift inter vivos. The gift to Mst. Chunderbutti, his wife, was in these terms (1) (19I4) 26 M.L.J. 616. (2) (1874-75) 2 I.A 256. \"the remaining 'milkiut' and 'minhai ' 'estates, together with the amount of ready money, articles, slaves, and all household furniture I have placed in the possession of Mst. Chunderbutti Thakurain, my wife, to be enjoyed during her lifetime, in order that she may hold possession of all the properties and milkiut possessed by me, the declarant, during her lifetime, and by the payment of Government revenue, appropriate the profits derived therefrom, but that she should not by any means transfer the milkiut estates and the slaves; that after the death of my aforesaid wife the milkiut and household furniture shall devolve on Girdhari Thakur, my karta (adopted son).\" The subordinate judge held that Chunderbutti got an estate for life with the power to appropriate profits and Girdhari got a vested remainder on her death. The High Court took a different view and held that Chunderbutti took the estate in her character as a Hindu widow. The Privy Council on this will held as follows \" Their Lordships do not feel justified, upon mere conjecture of what might probably have been intended, in so interpreting it as materially to change the nature of the estate taken by Chunderbutti. If she took the estate only of a Hindu widow, one consequence, no doubt, would be that she would be unable to alienate the profits, or that at all events, whatever she purchased out of them would be an increment to her husband's estate, and the plaintiffs would be entitled to recover possession of all such property, real and personal. But, on the other hand, she would have certain rights as a Hindu widow; for example, she would have the right under certain circumstances, if the estate were insufficient to defray the funeral expenses or her maintenance, to alienate it altogether. She certainly would have the power of selling her own estate; and it would further follow that Girdhari would not be possessed in any sense of a vested remainder, but merely of a contingent one. It would also follow that she would completely represent the estate, and under certain circumstances the statute of limitations might run against the heirs to the estate, whoever they might be. Their Lordships see no sufficient reason for importing into this document words which would carry with them all these consequences, and they agree with the subordinate judge in construing it according to its plain meaning.\" These observations have to a certain extent relevance to the present case but on the facts this case is also distinguishable. This will was couched in different language than the will in the present case. There was a clear prohibition, forbidding the widow to make any transfers of the milkiuit estates and the slaves. Reference was also made to a decision of the Bombay High Court in Lallu v. Jagmohan(1). The will there ran as follows:- \" When I die, my wife named Suraj' is owner of that property. And my wife has powers to do in the same way as I have absolute powers to do when I am present, and in case of my wife's death, my daughter Mahalaxmi is owner of the said property after that.\" It was held that Suraj took only a life estate under the will, with remainder over to Mahalaxmi after her death and the bequest to Mahalaxmi was not contingent on her surviving Suraj, but that she took a vested remainder which upon her death passed to her heirs. After considering the rival contentions of the parties, we are of the opinion that no sufficient grounds have been made out for disturbing the unanimous opinion of the two courts below on the construction of this will. Both the learned counsel eventually conceded that the language used in the will was consistent with the testator's intention of conferring a life estate in the English sense as well as with the intention of conferring a Hindu widow's estate. It was, however, urged by Mr. Rajah Iyer that as no express or implied power of alienation for purposes of all legal necessities was conferred on the widow, that circumstance (1) (1898) I.L.R. 22 Bom. 409. negatived the view that the testator intended to confer upon his widow a Hindu widow's estate as she would get in case of intestacy. He also emphasized that the words of the gift over to the daughter as supporting his construction which was further reinforced by the words of the will limiting the widow's estate \" till your lifetime \" and of the omission from therein of words such as nialik etc., while describing the widow's estate. Mr. Krisbnaswami lyengar, on the other hand, contended that the absence of any words in the will restricting her powers of alienation and putting a restraint on them, suggested a contrary intention and that the daughter's estate was described as coming into being after the estate of the widow and was not conferred on her simultaneously with the widow, and this connoted according to the notions of Hindus a full Hindu widow's estate. In our judgment, there is force in the contention of Mr. Rajah Iyer for reasons already stated and in the result, therefore, we dismiss this appeal with costs. Appeal dismissed. Agent for the appellant: M. S. K. Aiyangar. Agent for the respondent Ganpat Rai.",
        "14560127": "REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 7220-7221 OF 2011 BELI RAM \u2026Appellant Versus RAJINDER KUMAR & ANR. \u2026Respondents JUDGMENT SANJAY KISHAN KAUL, J. 1. The sole question of law for consideration in the present appeals is whether in case of a valid driving licence, if the licence has expired, the insured is absolved of its liability. 2. The facts are in a very narrow compass. The first respondent herein, met with an accident on 20.5.1999 while driving a truck owned Signature Not Verified by the appellant herein, under whom he was gainfully employed. The Digitally signed by Anita Malhotra Date: 2020.09.23 consequence for the first respondent was 20 per cent permanent 18:45:29 IST Reason: disability. The first respondent herein filed a petition under the Workmen\u2019s Compensation Act, 1923 (hereinafter referred to as \u2018the Compensation Act\u2019) before the Commissioner, Sadar, Bilaspur on 17.2.1999 seeking compensation of an amount of Rs.5,00,000/-, impleading the appellant and second respondent herein \u2013 the insurance company which had insured the vehicle. These proceedings resulted in an award by the Commissioner on 8.12.2004 granting Rs. 94,464/- for the injuries suffered and Rs.67,313/- towards medical expenses of the first respondent. The amounts awarded were to carry interest @ 9 per cent per annum from the date of filing of the application till the date of payment. The compensation amount was mulled on to the second respondent as insurer, while the interest was directed to be paid by the appellant herein. 3. The parties to the proceedings all filed appeals aggrieved by different aspects of the award. An intrinsic part of the consideration by the High Court was the issue raised about the validity of the driving licence of the first respondent at the time of the accident. The driving licence was endorsed by the Superintendent of R&LA Office, Udaipur but the licence expired on 6.9.1996 and there was no endorsement for renewal thereafter. Thus, the first respondent was driving the vehicle as the driver of the appellant herein for almost three years without the licence being renewed. 4. The aforesaid aspect of the non-validity of the driving licence weighed with the High Court while passing the impugned judgment dated 3.3.2009, absolving the insurance company of any liability and fastening the same upon the appellant herein on account of there being a material breach of the insurance policy. 5. The High Court, after the aforesaid finding took note of Section 4 of the Compensation Act, more specifically the following aspect: \u201c4. Amount of compensation \u2013 (1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:- (a) Where death results from the An amount equal to fifty per cent injury of the monthly wages of the deceased workman multiplied by the relevant factor; or An amount of eighty thousand, whichever is more; (b) Where permanent total An amount equal to sixty per cent disability results from the injury of the monthly wages of the injured workman multiplied by the relevant factor, or An amount of ninety thousand rupees, whichever is more. Explanation I.-- For the purposes of clause (a) and clause (b),\" relevant factor\", in relation to a workman means the factor specified in the second column of Schedule IV against the entry in the first column of that Schedule specifying the number of years which are the same as the completed years of the age of the workman on his last birthday immediately preceding the date on which the compensation fell due.\u201d 6. On consideration of the aforesaid provision, the High Court opined that there was no provision under the Compensation Act for payment of medical expenditure incurred by the claimant for treatment. The accident having taken place in the year 1999, the monthly wages stated to be Rs.4,500/-, it was found that the maximum amount of wages permissible under the Compensation Act for determining the compensation could be Rs.2,000/-. Compensation was liable to be paid within thirty (30) days of the accident and the owner could have recovered the amount from the insurer if ultimately it was established that the insurer was liable to have indemnified the insured. The appellant was found to be in breach of the statutory duty of a benevolent legislation, i.e., the Compensation Act and, thus, the appellant was burdened to pay interest as also maximum penalty of 50 per cent. The amount of compensation was thus quantified as under: \u201c1. Amount of compensation = Rs. 83,968/- 2. Penalty @ 50% on the amount of compensation = Rs. 41,984/- 3. Interest w.e.f. 20.6.1999 to 3.3.2009 (9 years & 257 days) on the amount of compensation = Rs. 73,335/-\u201d 7. The result was that the appeals of the insurer and the claimant were allowed. The endeavour to seek review of the judgment on the basis of pronouncement of this Court in National Insurance Co. Ltd. v. Swaran Singh and Ors.1 failed and the application was dismissed on 8.7.2009. 8. The only question which has been debated before us, is as set out at the inception of the judgment. The appellant sought to rely upon the 1 (2004) 3 SCC 297 recent judgment of this Court, Nirmala Kothari v. United India Insurance Company Limited.2 The question of law examined in this judgment was as to what is the extent of care/diligence expected of the employer/insured while employing a driver. The legal position regarding the liability of the insurance company when the driver of the offending vehicle possessed an invalid/fake driver\u2019s licence was adverted to for answering this question, by referring to earlier judicial pronouncements and the same was culled out in para 12 as under: \u201c12. While hiring a driver the employer is expected to verify if the driver has a driving licence. If the driver produces a licence which on the face of it looks genuine, the employer is not expected to further investigate into the authenticity of the licence unless there is cause to believe otherwise. If the employer finds the driver to be competent to drive the vehicle and has satisfied himself that the driver has a driving licence there would be no breach of Section 149(2)(a)(ii) and the insurance company would be liable under the policy. It would be unreasonable to place such a high onus on the insured to make enquiries with RTOs all over the country to ascertain the veracity of the driving licence. However, if the insurance company is able to prove that the owner/insured was aware or had notice that the licence was fake or invalid and still permitted the person to drive, the insurance company would no longer continue to be liable.\u201d 9. We have heard learned counsel for the parties and on a query being 2 (2020) 4 SCC 49 (authored by one of us, Krishna Murari, J.) raised, whether there is a view taken on the question as to what would be the consequence of a valid driving licence having expired both the learned counsel for the appellant and learned counsel for respondent No.2 insurance company stated that there was no direct view on this point. We even posed a question qua any judicial view of the High Courts in this behalf, but the answer to the same was also in the negative. We reserved the orders because we wanted to satisfy ourselves over this aspect. 10. We have not been able to trace out any judgments of this Court but there are judicial pronouncements of the High Courts dealing with the issue. 11. We consider it appropriate to first commence with the view of this Court in the Swaran Singh.3 case, which examined the meaning of the expression \u201cduly licensed\u201d, as used in Section 149(2)(a)(ii) of the Motor Vehicles Act, 1988 (hereinafter referred to as the \u2018MV Act\u2019). The factual matrix dealt with the claim of a third party and the different eventualities considered were: (a) licence not held; (b) fake licence held; (c) licence held but validity whereof has expired; (d) licence not held for type of 3 (supra) vehicle being driven; and (e) learner\u2019s licence held. We may note here that the facts of the present case relate to eventuality (c) above. A liberal view was taken considering the intent of the legislation in question and that it was a case of a third party claim. In an endeavour of the insurance company to absolve itself of liability the following observations were made: \u201c41. However, clause (a) opens with the words \"that there has been a breach of a specified condition of the policy\", implying that the insurer's defence of the action would depend upon the terms of the policy. The said sub-clause contains three conditions of disjunctive character, namely, the insurer can get away from the liability when (a) a named person drives the vehicle; (b) it was being driven by a person who did not have a duly granted licence; and (c) driver is a person disqualified for holding or obtaining a driving licence. 42. We may also take note of the fact that whereas in Section 3 the words used are 'effective licence', it has been differently worded in Section 149(2) i.e. 'duly licensed'. If a person does not hold an effective licence as on the date of the accident, he may be liable for prosecution in terms of Section 141 of the Act but Section 149 pertains to insurance as regard third party risks. 43. A provision of a statute which is penal in nature vis-a-vis a provision which is beneficent to a third party must be interpreted differently. It is also well known that the provisions contained in different expressions are ordinarily construed differently. 44. The words \u201ceffective licence\u201d used in Section 3, therefore, in our opinion cannot be imported for sub-section (2) of Section 149 of the Motor Vehicles Act. We must also notice that the words 'duly licensed' used in sub-section (2) of Section 149 are used in past tense. 45. Thus, a person whose licence is ordinarily renewed in terms of the Motor Vehicles Act and the rules framed thereunder despite the fact that during the interregnum period, namely, when the accident took place and the date of expiry of the licence, he did not have a valid licence, he could during the prescribed period apply for renewal thereof and could obtain the same automatically without undergoing any further test or without having been declared unqualified therefor. Proviso appended to Section 14 in unequivocal term states that the licence remains valid for a period of thirty days from the day of its expiry.\u201d \u2026. \u2026. \u2026. \u2026. \u2026. \u2026. \u201c48. Furthermore, the insurance company with a view to avoid its liabilities is not only required to show that the conditions laid down under Section 149(2)(a) or (b) are satisfied but is further required to establish that there has been a breach on the part of the insured. By reason of the provisions contained in the 1988 Act, a more extensive remedy has been conferred upon those who have obtained judgment against the user of a vehicle and after a certificate of insurance is delivered in terms of Section 147(3) a third party has obtained a judgment against any person insured by the policy in respect of a liability required to be covered by Section 145, the same must be satisfied by the insurer, notwithstanding that the insurer may be entitled to avoid or to cancel the policy or may in fact have done so. The same obligation applies in respect of a judgment against a person not insured by the policy in respect of such a liability, but who would have been covered if the policy had covered the liability of all persons, except that in respect of liability for death or bodily injury.\u201d 12. We may next advert to the judgment in the Nirmala Kothari4 case. The judgment was sought to be canvassed in support of the proposition by learned counsel for the appellant and we reproduce the relevant paragraphs in addition to the one reproduced above, as under: \u201c10. While the insurer can certainly take the defence that the licence of the driver of the car at the time of accident was invalid/fake however the onus of proving that the insured did not take adequate care and caution to verify the genuineness of the licence or was guilty of willful breach of the conditions of the insurance policy or the contract of insurance lies on the insurer. 11. The view taken by the National Commission that the law as settled in the PEPSU case is not applicable in the present matter as it related to third-party claim is erroneous. It has been categorically held in the case of National Insurance Co. Ltd. vs. Swaran Singh & Ors. (SCC p.341, para 110) that, \u201c110. (iii)\u2026Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licenced 4 (supra) driver or one who was not disqualified to drive at the relevant time.\u201d 13. The submission, thus, was that the appellant as insured had taken adequate care by verifying the licence of the driver/first respondent at the time of employment and the liability could have been mulled on the appellant only if he was aware or had notice that the licence was fake or invalid and still permitted the person to drive. This was stated not to be the factual position in the present case as the issuance of the licence has not been doubted, but rather that it was not subsequently renewed which was pleaded to be the responsibility of the first respondent. 14. We did point out at that stage itself by raising a query as to how this judgment would help in the case of the appellant since it was not a case of a fake or invalid licence. If the appellant was required to take adequate care and caution to verify the driving licence at the threshold, thereafter, the burden shifted on the insurance company to prove that such due care was not taken, could it be said that having, at the first blush verified the driving licence, the appellant was absolved of the responsibility of verifying whether the driving licence was kept renewed? 15. We are of the view that once the basic care of verifying the driving licence has to be taken by the employer, though a detailed enquiry may not be necessary, the owner of the vehicle would know the validity of the driving licence as is set out in the licence itself. It cannot be said that thereafter he can wash his hands off the responsibility of not checking up whether the driver has renewed the licence. It is not a case where a licence has not been renewed for a short period of time, say a month, as was considered in the case of Swaran Singh5 where the benefit was given to a third party by burdening the insurance company. The licence in the instant case, has not been renewed for a period of three years and that too in respect of commercial vehicle like a truck. The appellant showed gross negligence in verifying the same. 16. We are conscious of the fact that in the present case the beneficiary is the driver himself who was negligent but then we are not dealing with a claim under the MV Act but under the Compensation Act, which provides for immediate succor, not really based on a fault theory with a limited compensation as specified being paid. We are, thus, in the present proceedings not required to decide the share of the burden 5 (supra) between the appellant as the owner and the first respondent as the driver as may happen in a proceeding under the MV Act. 17. We now turn to the views of some of the High Courts, which have come to our notice on our own research! 18. The Delhi High Court in Tata AIG General Insurance Co. Ltd. v. Akansha & Ors.6 found that the driving licence having expired led to the natural finding that there was no valid driving licence on the date of the accident. The initial onus was discharged by the insurance company in view of the licence not being valid on the date of the accident. The onus, thereafter, shifted to the owner/insured to prove that he had taken sufficient steps to ensure that there was no breach of the terms and conditions of the insurance policy. Since no evidence had been led in this behalf, a presumption was drawn that there was willful and conscious breach of the terms and conditions of the insurance policy. 19. The Allahabad High Court in The Oriental Insurance Co. Ltd. v. 6 2015 SCC OnLine 6758 : (2015) 2 TAC 52 Manoj Kumar & Ors.7 again dealt with the case of an expired driving licence. The endeavour to rely on the principle set forth in a fake licence case was held not applicable in the case of an expired licence since the owner was supposed to be aware that the driving licence of the driver had expired and, thus, it was held that it was the duty of the owner to have ensured that the driver gets the licence renewed within time. In the absence of a valid driving licence, the vehicle was being driven in breach of the condition of the policy, requiring the vehicle to be driven by a person who is duly licensed, and thus, there was breach of Section 149(2) (a)(ii) of the MV Act, the consequence being that the insurance company could not he held liable. 20. The last judgment is of the Himachal Pradesh High Court in National Insurance Co. Ltd. v. Hem Raj & Ors. 8 This was, once again, a case of an originally valid licence, which had expired, there was no question of a fake licence. It was opined that the conclusions to be drawn from the observations of the judgment in the Swaran Singh9 case of this Court, were that the insurance company can defend an action on the 7 (2015) 111 ALR 275 (authored by Krishna Murari, J., as he then was) 8 : 2012 ACJ 1891 (authored by Deepak Gupta, J., as he then was) 9 (supra) ground that the driver was not duly licensed on the date of the accident, i.e., an expired licence having not been renewed within thirty (30) days of the expiry of the licence as provided in Sections 14 & 15 of the MV Act. In this context it was observed that the Swaran Singh.10 case did not deal with the consequences if the licence is not renewed within the period of thirty (30) days. If the driving licence is not renewed within thirty (30) days, it was held, the driver neither had an effective driving licence nor can he said to be duly licenced. The conclusion, thus, was that the driver, who permits his licence to expire and does not get it renewed till after the accident, cannot claim that it should be deemed that the licence is renewed retrospectively. 21. The learned Judge debated the question of the consequences of the MV Act being a beneficial piece of legislation. Thus, if two interpretations were possible, it was opined that the one which is in favour of the claimants should be given, but violence should not be done to the clear and plain language of the statute. Thus, while protecting the rights of the claimants by asking the insurance company to deposit the amount, the recovery of the same from the insured would follow as the 10 (supra) sympathy can only be for the victim of the accident. The right which has to be protected, is of the victim and not the owner of the vehicle. It was, thus, observed in para 18 as under: \u201c18. When an employer employees a driver, it is his duty to check that the driver is duly licensed to drive the vehicle. Section- 5 of the Motor Vehicles Act provides that no owner or person incharge of a motor vehicle shall cause or permit any person to drive the vehicle if he does not fulfil the requirements of Sections 3 and 4 of the Motor Vehicles Act. The owner must show that he has verified the licence. He must also take reasonable care to see that his employee gets his licence renewed within time. In my opinion, it is no defence for the owner to plead that he forgot that the driving licence of his employee had to be renewed. A person when he hands his motor vehicle to a driver owes some responsibility to society at large. Lives of innocent people are put to risk in case the vehicle is handed over to a person not duly licensed. Therefore, there must be some evidence to show that the owner had either checked the driving licence or had given instructions to his driver to get his driving licence renewed on expiry thereof. In the present case, no such evidence has been led. In view of the above discussion, I am clearly of the view that there was a breach of the terms of the policy and the Insurance Company could not have been held liable to satisfy the claim.\u201d 22. We have reproduced the aforesaid observations as it is our view that it sets forth lucidly the correct legal position and we are in complete agreement with the views taken in all the three judgments of three different High Courts with the culmination being the elucidation of the correct legal principle in the judgment in the Hem Raj11 case. 23. When we turn to the facts of the present case there is almost an identical situation where the appellant has permitted to let the first respondent driver drive the truck with an expired licence for almost three (3) years. It is clearly a case of lack of reasonable care to see that the employee gets his licence renewed, further, if the original licence is verified, certainly the employer would know when the licence expires. And here it was a commercial vehicle being a truck. The appellant has to, thus, bear responsibility and consequent liability of permitting the driver to drive with an expired licence over a period of three (3) years. The only thing we note is that fortunately there has been no accident with a third party claimant but the person who has caused the sufferance and sufferer are one and the same person, i.e., the first respondent driver. We are, however, dealing with the determination under the Compensation Act and those provisions are for the benefit of the workmen like the first respondent, even though he may be at fault, by determining a small amount payable to provide succor at the relevant stage when the larger 11 (supra) issues could be debated in other proceedings. The only exception is in the provisos to Section 3 of the Compensation Act, which is not the factual situation in the present case. The relevant provision reads as under: \u201c3. Employer' s liability for compensation.- (1) If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter: Provided that the employer shall not be so liable-- (a) in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding [four] days; (b) in respect of any [injury, not resulting in death, caused by] an accident which is directly attributable to-- (i) the workman having been at the time thereof under the influence of drink or drugs, or (ii) the wilful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workmen, or (iii) the wilful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workmen.\u201d We are not aware whether any other proceedings have been initiated or not, at least, none that have been brought to our notice. The aforesaid findings of the initial lack of care by the first respondent in not renewing the driving licence would be present, but the lack of care of the appellant as the employer would also arise. We have penned down the aforesaid views as such a situation is quite likely to arise in proceedings under the MV Act where a third party is claiming the amount. Proceedings here being under the Compensation Act, the consequences are not flowing to the first respondent as the initial negligent person. 24. In view of the aforesaid, the appeals are dismissed by settling the aforesaid question of law and leaving the parties to bear their own costs. ...\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026J. [Sanjay Kishan Kaul] ...\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026J. [Aniruddha Bose) ...\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026J. [Krishna Murari) New Delhi. September 23, 2020.",
        "13618343": "$~ * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on:-24.02.2020 Date of Decision:- 18.03.2020 + O.M.P. (COMM) 399/2019 & IA No.13333/2019 (stay) UNION OF INDIA ..... Petitioner Through: Ms. Pinky Anand, ASG with Mr.Bhagwan Swarup Shukla, Mr. Rajesh Ranjan, Mr. Joel, Mr. Hemant Arya, Ms. Kirti Dua, Mr. Sumit Teterwal, Ms.Rinky, Mr.Sharvan Kumar & Mr.Gokul Sharma, Advs. versus BHARAT BIOTECH INTERNATIONAL LTD. .... Respondent Through: Mr.Sandeep Sethi, Sr. Adv. with Mr.Vipin Nair, Mr.P.B. Suresh, Mr.Karthik Jayashankar, Mr.Sughosh Subramanyam Neergundh, Advs. + O.M.P. (COMM) 407/2019 & IA Nos.13543/2019 (stay) UNION OF INDIA ..... Petitioner Through: Ms. Pinky Anand, ASG with Mr.Bhagwan Swarup Shukla, Mr. Rajesh Ranjan, Mr. Joel, Mr. Hemant Arya, Ms. Kirti Dua, Mr. Sumit Teterwal, Ms.Rinky, Mr.Sharvan Kumar & Mr.Gokul Sharma, Advs. versus SERUM INSTITUTE OF INDIA LIMITED ..... Respondent Through: Mr. Abhinav Vasisht, Sr. Adv. with Mr. Vikram Dhokalia, Adv. + O.M.P. (COMM) 408/2019 & IA Nos.13546/2019 (stay) UNION OF INDIA ..... Petitioner Through: Ms. Pinky Anand, ASG with Mr.Bhagwan Swarup Shukla, Mr. Rajesh Signature Not Verified OMP(COMM) 399/2019 & connected Page 1 of 16 DigitallySigned By:MANJU BHATT Signing Date:18.03.2020 16:52:44 Ranjan, Mr. Joel, Mr. Hemant Arya, Ms. Kirti Dua, Mr. Sumit Teterwal, Ms.Rinky, Mr.Sharvan Kumar & Mr.Gokul Sharma, Advs. versus PANACEA BIOTECH LIMITED ..... Respondent Through: Mr. Sudhir Nandrajog, Sr. Adv. with Mr. Kawal Nain, Ms.Kavita & Mr.Rohit Dadwal, Advs. CORAM: HON'BLE MS. JUSTICE REKHA PALLI JUDGMENT REKHA PALLI, J I.A. 13334/2019 (delay of 50 days in re-filing) in O.M.P. (COMM) 399/2019 I.A. No.13544/2019 (delay of 55 days in re-filing) in O.M.P. (COMM) 407/2019 I.A. No.13547/2019 (delay of 50 days in re-filing) in O.M.P. (COMM) 408/2019 1. The present decision disposes of similar applications filed by the Union of India seeking condonation of delay in re-filing the three petitions preferred under Section 34 of the Arbitration and Conciliation Act ('the Act'), in each of which a challenge has been laid to three different arbitral awards all dated 14.03.2019. 2. Although all the three applications are based on identical facts, the delay in question is slightly different. The delay of which condonation is sought is 50 days each in O.M.P. (COMM) 399/2019 and O.M.P. (COMM) 408/2019, while it is 55 days in O.M.P. (COMM) 407/2019. 3. In each of these petitions, condonation of delay in re-filing is sought primarily on the ground that a duly signed petition along with the affidavit, the statement of truth and Vakalatnama was filed on 31.05.2019 Signature Not Verified DigitallySigned By:MANJU BHATT Signing Date:18.03.2020 16:52:44 before the statutory period of limitation of 90 days as prescribed under Section 34(3) of the Act had expired. On the other hand, the respondents have vehemently opposed these applications primarily on the ground that these petitions, when originally filed within the statutory period of limitation, were merely a 'bunch of papers' and could not be treated as being valid in the eyes of law. It is contended that a complete and valid petition was filed only on 18.09.2019 by which date the limitation period of 3 months and 30 days as prescribed under Section 34 (3) of the Act had already expired. 4. In view of the preliminary objections raised by the respondents, the learned senior counsel for the parties have been heard at length on the aspect of condonation of delay in re-filing of the petition. 5. Before referring to the grounds on which condonation is sought, the factual matrix surrounding the delay caused in these matters may be noted. For the sake of convenience, only the facts of OMP(COMM.) 399/2019 are being referred to. 6. The impugned award was passed by the learned Arbitral Tribunal on 14.03.2019 and the petition under Section 34 of the Act assailing the same came to be filed by the petitioner on 31.05.2019. The petition as filed comprised of 83 pages and admittedly neither included a copy of the impugned Award nor was accompanied by any application seeking exemption from filing the same. The Registry raised 25 objections on this filing, which are reflected in the log information dated 04.06.2019. On 01.07.2019, when the courts re-opened after summer vacations, the petition was returned under objections, which was subsequently re-filed on 11.07.2019 without any corrections. When the petition was again returned under objections, it was re-filed on 31.07.2019 with some drastic alterations and was, at this point, running into 430 pages. Signature Not Verified DigitallySigned By:MANJU BHATT Signing Date:18.03.2020 16:52:44 7. Upon further defects being pointed out, the petition was re-filed on 12.09.2019 whereupon the Registry raised further objections and the petition was finally re-filed for the fifth time on 18.09.2019, by which date the petition had increased to 441 pages, along with an application for condonation of delay in re-filing the petition, which as noted hereinabove is the subject matter of the present controversy. 8. This application which barely runs into four paragraphs gives the reasons for delay in paragraph 3, the contents whereof read as under:- \"3. It is respectfully submitted on account of several defects point out by registry in voluminous appeal filed it took long time to came the defect and some extra days wore in getting file approved for Union of India. One of the defects pointed out by registry was to give email address the respondents which against took same extra days to objection removed.\" 9. Though the petitioner subsequently filed an additional affidavit on 05.11.2019 in an effort to explain the reasons for delay, but the same merely recounted the particulars of the re-filings. 10. In support of the application, Ms. Pinky Anand, learned ASG appearing on behalf of the petitioner submits that the petition was filed within the prescribed statutory period of 90 days as the award dated 14.03.2019 had been assailed by way of the present petition on 31.05.2019, therefore the delay was only occasioned in re-filing the petition which ought to be condoned in view of the reasons stated in the application and the additional affidavit. She submits that the initially filed copy of the petition was complete and was not only duly signed in accordance with law but was also supported by an affidavit, a statement of truth and a duly executed vakalatnama; therefore, merely because the Registry kept raising defects thereon from time to time, which the petitioner diligently removed, the same neither renders the filing non est, Signature Not Verified DigitallySigned By:MANJU BHATT Signing Date:18.03.2020 16:52:44 nor indicates any negligence on the petitioner's part in filing the petition nor render the petition as being barred by limitation. 11. She further submits that the failure to file a copy of the impugned award along with the petition was also not fatal. In support of this contention, she places reliance on Chapter IV of the Delhi High Court (Original Side) Rules, 1967 issued by this Court in pursuance to the Indian Arbitration Act, 1940 to contend that it was never the intention of the legislature to insist on a copy of the arbitral award at the very first instance. She submits that even the Delhi High Court (Original Side) Rules, 2018 do not mandate the same but, instead, adopt the existing practice directions with respect to arbitration, as contained in the Arbitration and Conciliation Act, 1996 which also do not necessitate appending the copy of the arbitral award to the Section 34 petition. Rather, the practice directions enjoin the arbitral tribunal to transmit the arbitral record, including the award, to the Court once notice is issued in a Section 34 petition. She, therefore contends that on a combined reading of the practice directions issued on 30.08.2010 and 16.01.2015 also do not require the impugned award to be filed along with a Section 34 petition, therefore the non-filing of the impugned award in the present case, alongwith the original petition filed on 31.05.2019, is inconsequential. 12. She finally submits that the parameters for condonation of delay in re-filing the petition are very different from those applicable for condonation of delay in filing the petition. She submits that once the filing of a petition is within time, the Court ought to apply a liberal yardstick while considering the prayer for condoning the delay in re-filing the same. Any said delay ought to be condoned by the Court, provided that the applicant shows sufficient cause for the same, which duty has Signature Not Verified DigitallySigned By:MANJU BHATT Signing Date:18.03.2020 16:52:44 duly discharged by the petitioner in the present case. In support of this contention, she places reliance on Northern Railway vs. Pioneer Publicity Corporation Private Limited (2017) 11 SCC 234, M/s. Himachal Futuristic vs. I.T.I. Limited 2017 SCC OnLine Del 8522 and Indian Statistical Institute vs. M/s Associated Builders and Others (1978) 1 SCC 483. 13. On the other hand, Mr. Sandeep Sethi, learned senior counsel for the respondent while opposing the application, submits that the Section 34 petition as originally filed on 31.05.2019 could, at the most, be considered as a 'bunch of papers' as it suffered from critical deficiencies which cannot be disregarded by this Court; a copy of the arbitral award which the petition sought to impugn was absent; the petition failed to bear the requisite signatures on each page therein, as mandatorily required; the affidavit accompanying the petition refers to documents at serial nos. 3 (a) to (w) which were never annexed; the petition was filed without any court fees, to name a few. To make matters worse, the vakalatnama annexed to the initially filed petition on 31.05.2019 was undated and could not, therefore, be treated as a valid vakalatnama. He submits that even the statement of truth accompanying the petition bore incomplete information. This is revealing of the petitioner's intent from the very beginning, as paragraphs 3 and 6 of the aforesaid statement of truth were intentionally left blank by the petitioner with the possible hope of changing the basic structure of the originally filed petition. Lastly, the petition, as filed on 31.05.2019, comprised of 83 pages which were subsequently increased to 441 pages which, he contends virtually amounted to altering the entire petition which is not permissible in law. 14. Mr. Sethi thus contends that the initial filing by the petitioner on 31.05.2019 was merely a dummy filing, which bore references to Signature Not Verified DigitallySigned By:MANJU BHATT Signing Date:18.03.2020 16:52:44 documents which are completely alien to the present disputes. Similarly, the second filing on 11.07.2019 was also a dummy filing as at that instance, the petitioner had merely proceeded to re-file the entire petition without curing a single defect raised by the Registry on 04.06.2019, all of which were blatant attempts to defeat the rights accruing to the respondent in the interregnum. He further submits that the third re-filing on 31.07.2019, notwithstanding the increase in the number of pages of the petition to 430, was defective as it neither adhered to the statutorily prescribed period of limitation of 3 months and 30 days nor addressed the objections raised by the Registry. The fourth and fifth re-filings were effected on 12.09.2019 and 18.09.2019 respectively, this time with 441 pages, and led to the petition being listed for hearing before this Court on 24.09.2019. By placing reliance on the decisions of this Court in Delhi Development Authority v. Durga Construction Co. 2013(139)DRJ 133(DB), Oriental Insurance Co. Ltd. Vs. Air India Ltd. 2019 SCC OnLine Del 11634 and Oil and Natural Gas Corporation Ltd. v. Joint Venture 2019 SCC OnLine Del 10456, he contends that the initially filed petition, being a mere skeletal filing, could not be treated as a valid filing in the eyes of law. It is his case that the first instance of valid filing in the present case, could only be considered as having been effected on 12.09.2019. He thus, contends that the delay of which condonation is sought is masked as a delay in re-filing, but in reality ought to be treated as a delay in filing the petition beyond the period of 3 months and 30 days as prescribed under the express provisions of Section 34(3) of the Act and cannot be condoned. 15. Mr.Abhinav Vashisth and Mr. Sudhir Nandrajog, learned senior counsel who appear for the respondents in the connected petitions oppose the applications as well and, besides adopting the arguments of Mr.Sethi, Signature Not Verified DigitallySigned By:MANJU BHATT Signing Date:18.03.2020 16:52:44 submit that the reasons given in these applications as also the additional affidavit filed by the petitioner are extremely vague and cannot be treated as a sufficient ground to condone the delay. They further submit that the petitioner's alteration of the final page of the originally filed petition and act of filling in blanks in the statement of truth as also the vakalatnama, as originally filed, reveal their attempt to falsify the record which cannot be permitted, for which they relied on the decision of this Court in Sravanthi Infratech Private Limited vs. Greens Power Equipment (China) Co. Ltd., 2016 SCC Online Del. 5645. 16. I have heard the learned ASG and learned senior counsel for the respondents and with their assistance, perused the record. The primary contention raised by the learned ASG, by relying on the decisions in Pioneer Publicity Corporation Private Limited (supra), M/s. Himachal Futuristic (supra) and M/s Associated Builders (supra), is that the parameters to be applied for condoning delay in re-filing are different from those applicable to delay in filing. There cannot be any quarrel with this proposition of law. However, in view of the respondent's plea that the original filing on 31.05.2019 was non est and the petition has to be treated as being validly filed only on 31.07.2019, i.e., the date on which the impugned award was placed on record and therefore, what the petitioner is actually seeking is not a condonation of delay in re-filing but condonation of delay in filing. To determine this issue, the foremost question which needs to be considered by this Court is whether the original filing was non est and a mere bunch of papers, or whether the same was filed in compliance with all legal requirements. If the Court finds that the initial petition was hopelessly inadequate or insufficient or contained defects which are fundamental to the very filing of the petition, then the filing has to be treated as non est, and the date of filing has to be Signature Not Verified DigitallySigned By:MANJU BHATT Signing Date:18.03.2020 16:52:44 treated as the date on which the petitioner re-filed the petition after annexing all the necessary documents and removing objections raised by the Registry. On the other hand, if the initial filing is found to be valid, then the petition would have to be treated as having been filed within time and the question then would be whether the delay in re-filing, after curing of defects, ought to be condoned. 17. To determine whether the originally filed petition should be treated as valid or non est, this Court may be guided by the principles laid down by a Division Bench of this Court in DDA vs. Durga Construction Co., 2013 (139) DRJ 133(DB) wherein it was held as under:- \"17. The cases of delay in re-filing are different from cases of delay in filing inasmuch as, in such cases the party has already evinced its intention to take recourse to the remedies available in courts and has also taken steps in this regard. It cannot be, thus, assumed that the party has given up his rights to avail legal remedies. However, in certain cases where the petitions or applications filed by a party are so hopelessly inadequate and insufficient or contain defects which are fundamental to the institution of the proceedings, then in such cases the filing done by the party would be considered non est and of no consequence. In such cases, the party cannot be given the benefit of the initial filing and the date on which the defects are cured, would have to be considered as the date of the initial filing. A similar view in the context of Rules 1 & 2 of Chapter IV of the Delhi High Court (Original Side) Rules, 1967 was expressed in Ashok Kumar Parmar v. D.C. Sankhla: 1995 RLR 85, whereby a Single Judge of this Court held as under:- \"Looking to the language of the Rules framed by Delhi High Court, it appears that the emphasis is on the nature of defects found in the plaint. If the defects are of such character as would render a plaint, a non-plaint in the eye of law, then the date of presentation would be the date of re-filing after removal of defects. If the defects are formal or ancillary in nature not effecting the validity of the plaint, the date of presentation would be the date of original presentation for the purpose of calculating the limitation for filing the suit.\" Signature Not Verified DigitallySigned By:MANJU BHATT Signing Date:18.03.2020 16:52:44 A Division Bench of this Court upheld the aforesaid view in D.C. Sankhla v. Ashok Kumar Parmar: 1995 (1) AD (Delhi) 753 and while dismissing the appeal preferred against decision of the Single Judge observed as under:- \"5. ...... In fact, that is so elementary to admit of any doubt. Rules 1 and 2 of (O.S.) Rules,1967, extracted above, do not even remotely suggest that the re-filing of the plaint after removal of the defects as the effective date of the filing of the plaint for purposes of limitation. The date on which the plaint is presented, even with defects, would, therefore, have to be the date for the purpose of the limitation act.\" 18. In several cases, the defects may only be perfunctory and not affecting the substance of the application. For example, an application may be complete in all respects, however, certain documents may not be clear and may require to be retyped. It is possible that in such cases where the initial filing is within the specified period of 120 days (3 months and 30 days) as specified in section 34(3) of the Act, however, the re-filing may be beyond this period. We do not think that in such a situation the court lacks the jurisdiction to condone the delay in re-filing. As stated earlier, section 34(3) of the Act only prescribes limitation with regard to filing of an application to challenge an award. In the event that application is filed within the prescribed period, section 34(3) of the Act would have no further application. The question whether the Court should, in a given circumstance, exercise its discretion to condone the delay in re-filing would depend on the facts of each case and whether sufficient cause has been shown which prevent re-filing the petition/application within time.\" 18. The aforestated principles, when applied to the facts of the present case, would provide an answer to the first question arising for my consideration - should the petition, as filed on 31.05.2019, be regarded as a 'valid' filing or as non est? It remains undisputed inter alia that the impugned award was not placed on record till 31.07.2019, by which date the extended period of limitation had already expired and that the petition, as originally filed, had been substantially altered at the time of re-filing. In fact at the time of re-filing, not only were documents spanning over 350 pages added to the petition, but even the framework of Signature Not Verified DigitallySigned By:MANJU BHATT Signing Date:18.03.2020 16:52:44 the petition was changed, yet the last page of the re-filed petition continued to reflect the date of filing as 31.05.2019; which is patently untrue, in the light of the petitioner's admission that it had made changes in the body of the petition at the time of re-filing. This, in my considered opinion, is an entirely unacceptable practice. Even the fact that when the petition was initially filed no court fees was affixed, the vakalatnama was undated, the accompanying statement of truth was incomplete and lacked critical information, and the supporting affidavit made reference to documents which were not even annexed to the petition remains undisputed. However, the most glaring defect at the time of the initial filing as also the only re-filing done prior to 14.07.2019 was that even a copy of the award which the petitioner sought to assail, was not annexed with the petition. I am unable to comprehend as to how a petition seeking to assail an order, an award in this case, without even annexing a copy thereof can be claimed as a valid filing and that too without even moving an application seeking exemption from filing a copy of the impugned award. 19. It is obvious that the original petition, as filed on 31.05.2019, and only running into 83 pages was a careless and deliberate attempt on the petitioner's part to somehow stop the clock on limitation amounting to a clever manoeuvre to buy time. In fact even after the original petition was received back by the petitioner's counsel on 01.07.2019 with defects being pointed by the Registry, the petitioner did not take any steps to file a copy of the impugned award while re-filing the petition on 11.07.2019, i.e., within the extended period of limitation of 3 months and 30 days which expired on 14.07.2019. In fact, even as per the petitioner's admission, the impugned award was filed for the first time, belatedly, on 31.07.2019. I am of the view that the petitioner's failure to file the Signature Not Verified DigitallySigned By:MANJU BHATT Signing Date:18.03.2020 16:52:44 impugned award along with the petition at the time of filing on 31.05.2019 or at the time of its re-filing on 11.07.2019, both falling within the period of limitation, cannot be underplayed as a 'trivial' defect but is a defect of such gravity that it would render the original filing as a mere dummy filing. 20. Though the learned ASG has vehemently urged that neither under the Original Side Rules nor the practice directions require the arbitral award to be filed along with the Section 34 petition and that in fact the award along with the entire arbitral record were required to be summoned by this Court as a matter of practice, I am unable to accept this contention. A bare perusal of the practice directions issued on 30.08.2010, which are relevant herein and reproduced below, do not support this contention. Further, on perusing the 2018 Original Sides Rules I find that Chapter XXVIII Rule 1, being the applicable provision, also merely states that the existing practice directions in relation to the proceedings under the Act shall stand incorporated by inclusion in these Rules. The same, however, do not, in any manner, either deal with or dispense with the requirement of annexing a copy of the impugned award in a Section 34 petition. CHAPTER XXVIII ALTERNATIVE DISPUTE RESOLUTION, ARBITRATION AND MEDIATION 1. Extant rule (s), notification (s), scheme (s) and Practice Directions in relation to proceedings under the Arbitration and Conciliation Act, 1996, as amended from time to time, shall stand incorporated by inclusion in these Rules. PRACTICE DIRECTION Hon\u201fble the Chief Justice has been pleased to issue the following practice direction:- Signature Not Verified DigitallySigned By:MANJU BHATT Signing Date:18.03.2020 16:52:44 As soon as notice is issued in the petitions filed under Section 34 of the Arbitration & Conciliation Act, 1996, the Registry shall send a letter of request to the Arbitrator to transmit the record of arbitral proceedings as well as award to this Court after the conclusion of arbitration. This practice direction will come into force immediately. (Rakesh Kapoor) Registrar General 21. In fact, a similar plea regarding the effect of non-filing of the award has already been considered by a Division Bench in Executive Engineer vs. Shree Ram Construction Co. (2010) 120 DRJ 615 (DB) as also a co-ordinate Bench of this Court in SKS Power Generation (Chhattisgarh) Ltd. vs. ISC Projects Private Limited 2019 SCC OnLine Del 8006 holding that non-filing of the impugned award would be fatal. In my considered view, filing a copy of the impugned award would be a sine qua non in every petition laying a challenge thereon. On a combined consideration of the significant deficiencies in the original petition filed on 31.05.2019, especially the non-filing of a copy of the award, with the principles enunciated in Durga Construction (supra), I am compelled to hold that, notwithstanding the fact that it bore the requisite signatures, albeit not on every page, and was accompanied by the statement of truth, affidavit and the vakalatnama, the initial filing was non est in the eyes of law and is inconsequential. Therefore, in the present case I have no hesitation in holding that a valid petition can, at the earliest, be treated as having been filed on 31.07.2019, when for the first time a copy of the impugned award came to be annexed to the petition, even though the other objections which were equally important were removed only on 18.09.2019. 22. For the aforesaid reasons the petition, being re-filed after 14.07.2019, i.e., the date on which the extended period of limitation of 3 Signature Not Verified DigitallySigned By:MANJU BHATT Signing Date:18.03.2020 16:52:44 months and 30 days stood expired, has to be treated as being barred by limitation. Now these applications in question, though styled as applications seeking condonation of delay in re-filing, have to necessarily be treated as applications seeking condonation of delay in filing the petition beyond the statutorily prescribed period. As is settled, this Court does not have the power to condone any delay caused beyond 30 days after the expiry of the limitation period of three months, which in the present case expired on 14.07.2019. In this regard, reference may be made to the decision in Union of India vs. Popular Construction Co. (2001) 8 SCC 470 wherein the Supreme Court held that the Court cannot entertain an application to set aside the award beyond the extended period under proviso to Section 34 (3) of the Act, thus clearly laying down that a challenge to an award filed after 3 months and 30 days of receipt of the arbitral award by the aggrieved party has to be rejected. 23. Thus, I have no hesitation in holding that these applications are seeking condonation of delay in filing, which is not permissible considering the delay in question was beyond the extended period of limitation and cannot, therefore, be condoned by this Court. 24. In the light of my aforesaid conclusion, while there is no doubt that the applications have to be treated as seeking condonation of delay in filing but even if the petitioner's plea were accepted that the delay ought to be treated as a 'delay in re-filing', it was still incumbent upon the petitioner to provide cogent and substantive reasons for the delay of 50/55 days occasioned in filing these petitions. Undoubtedly as a matter of general practice, the standards applicable while considering a prayer for condonation of delay in 're-filing' are less rigid than those applicable for condoning delay in filing, but I cannot lose sight of the fact that these applications pertain to petitions under Section 34 of the Act where the Signature Not Verified DigitallySigned By:MANJU BHATT Signing Date:18.03.2020 16:52:44 approach, even while dealing with a prayer for condonation of delay in re-filing, cannot be too liberal. 25. In this regard, reference may be made to the decision in Durga Construction (supra), wherein a Division Bench of this Court, while dealing with an application for condonation of delay in re-filing of a petition beyond the time prescribed under Section 34(3) of the Act, held that though the Court is empowered to condone delay beyond the extended period of limitation of 3 months and 30 days, it is requisite for the party seeking the condonation to show that despite his diligence, the rectification of defects and re-filing could not be carried out within the limitation period, for bonafide reasons beyond his control. At the time of considering applications of like nature, it is important for the Court to bear in mind the legislative intent for prescribing a statutory period of limitation under Section 34(3) of the Act viz. ensuring expeditious disposal of arbitration and preventing delay in implementation of an award by parties who would malafidely challenge the same. Ultimately, the Act sought to breathe life into a much needed alternate system of dispute resolution and lend greater credence to it, by removing any unwarranted obstacles to its smooth functioning. A liberal approach while dealing with an application for condonation of delay in challenging the award would only endanger and frustrate the purpose for which the Act was enacted. 26. Returning to the facts of the present petition, I find that regrettably, the petitioner has failed to provide any justifiable reason, much less a sufficient reason to seek condonation of delay. The petitioner's explanation in the application as also the additional affidavit is wholly perfunctory, vague and demonstrate the alarmingly lackadaisical approach of the petitioner in complying with general filing practice and Signature Not Verified DigitallySigned By:MANJU BHATT Signing Date:18.03.2020 16:52:44 the statutory requirements under Section 34 of the Act. In fact the petitioner has merely made a bald averment that the delay had been caused due to repeated objections being raised on the petition by the Registry, which took time to cure. On the contrary the logbook maintained by the Registry shows that most of the defects raised by the Registry at the very first instance of fling on 04.06.2019 were not rectified till as late as 18.09.2019, which indicates that the petitioner was at fault for not removing the objections in a timely manner and the reasons sought to be advanced by it are not at all bonafide. Thus, even if the delay in question were to be treated as a 'delay in re-filing', the petitioner's explanation for the delay being vague, unsubstantiated, insufficient and contrary to the record is liable to be rejected. 27. For the aforesaid reasons, when looked at from any angle, these applications cannot succeed and are accordingly dismissed. O.M.P. (COMM) 399/2019 & IA No.13333/2019 (stay) O.M.P. (COMM) 407/2019 & IA Nos.13543/2019 (stay) O.M.P. (COMM) 408/2019 & IA Nos.13546/2019 (stay) 28. Since the applications seeking condonation of delay in filing/re- filing the petitions have been dismissed, the petitions are also dismissed. (REKHA PALLI) March 18, 2020 JUDGE \u201eSDP/gm\u201f Signature Not Verified DigitallySigned By:MANJU BHATT Signing Date:18.03.2020 16:52:44",
        "16052757": "[REPORTABLE] IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS.1713-1714 OF 2022 (@ SLP (c) Nos.30487-30488 OF 2017) RAMA NEGI APPELLANT(S) VERSUS UNION OF INDIA & ORS. RESPONDENT(S) WITH CIVIL APPEAL NOS.1715-1716 OF 2022 (@ SLP (c) Nos.10513-10514 OF 2018) J U D G M E N T Hrishikesh Roy, J. 1. Signature Not Verified Digitally signed by Leave granted. The challenge in these two appeals Nidhi Ahuja Date: 2022.03.02 17:53:15 IST is to the judgment dated 22.9.2017 in the Special Reason: Appeal Nos.87 and 88 of 2014, filed by Appellant Rama Negi and Special Appeal Nos. 96 of 2014 and 97 of 2014, filed by the Cantonment Board, Ranikhet. The Division Bench of the Uttarakhand High Court under the impugned judgment dismissed the Appeals and upheld the judgment of the learned Single Judge whereby the appellant Rama Negi\u2019s promotion to the post of Office Superintendent in the Cantonment Board was quashed and the Writ Petitions of the respondent no.3, Gopal Ram Arya were allowed. 2. Heard Mr. P.S. Patwalia, learned senior counsel appearing for the appellant. The Cantonment Board, Ranikhet is represented by Mr. Jayant Bhushan, learned senior counsel. Also heard the learned counsel appearing for the Respondent no.3. 3. As the contentions of the learned counsel are based on the inter se seniority of the two contesting parties, their service details in the Cantonment Board, Ranikhet are reproduced, in the following chart. S.No. Gopal Ram Arya (R-3/WP in Rama Negi (appellant) \f HC) Date Description Date Description 1. 16.07.199 Appointed as 01.09.199 Appointed as 0 Typist/Junior 5 Steno Typist Clerk on ad-hoc equivalent to basis. Senior Clerk Promoted to Senior Clerk 09.07.199 2. 01.09.200 Promoted to 01.10.200 Promoted to the 5 Revenue 9 post of Superintendent Accountant (feeder cadre) (feeder cadre) (as SC category) 3. 28.11.201 Charge sheet 1 for dereliction of duty, negligence 4. 01.02.201 Officiating 2 charge as Office Superintendent. 25.3.2013 Retrospectively promoted to Office Superintendent w.e.f. 1.2.2012 5. 17.8.2016 Penalty of recovery of Rs. 10,000/- on DP by Board (R2) 4. As can be seen from above, the appellant initially joined service in the Cantonment Board, as a Steno Typist (equivalent to Senior Clerk), on 1.9.1995. The respondent no.3 after entering service initially as a Junior Clerk on 16.7.1990, was promoted to the Post of Steno Typist/Senior Clerk on 9.7.1997, around 22 months after the appellant directly joined service in the higher post. Thereafter, the respondent no.3 though junior, was promoted to the post of Revenue Superintendent on 1.9.2005 by giving him the benefit of reservation as a Scheduled Caste person. The appellant was subsequently promoted to the equivalent post of Accountant on 1.10.2009. Since promotion to the respondent no.3 was by conferring reservation benefit, appellant being subsequently promoted to the said cadre on 1.10.2009, she expected restoration of her seniority. 5. The promotion for the next post of Office Superintendent is governed by Rule 5-B (8) of the Cantonment Fund Servant Rules, 1937 (\u201cthe Rules\u201d for short), and the same reads as under: \u201cRule 5-B(8) - Appointments to promotion posts shall be made [by the appointing authority] on the basis of seniority lists maintained for this purpose by the Board, subject to rejection of those considered unfit: Provided that promotion of selection posts shall be made on the basis of seniority-cum-merit.\u201d 6. Under Annexure E of the Rules, the post of Office Superintendent together with other posts of Accountant, Toll Superintendent and Revenue Superintendent in the Cantonment Board of Ranikhet, is included in the category of \u201cselection posts\u201d and the relevant portion reads as under: \u201cANNEXURE \u2018E\u2019 1. Post declared as Selection posts under Cantonment Boards in Central Command. Authority: GOC-in-C, Central Command, Lucknow Letter No., 82562/Classification/LC6 dated 12.1.77 and [dated 25.4.1980] **** **** **** **** **** **** **** **** 24.Ranikhet Office Supdt. Accountant, Toll Supdt. Rev. Supdt. Forest Ranger, Jamadar (PWD) Sanitary Jamadar, Head Mali and Toll Moharrir (Non- Matric).\u201d The Rules above specify, the post of Office Superintendent as a \u201cselection post\u201d and under Rule 5B(8), promotion to the post is to be considered on the criterion of seniority cum merit. 7. The Cantonment Board in its meeting held on 11.1.2012 considered the candidature of the persons serving in the feeder cadre and it was resolved to recommend the appellant for promotion to the \u201cselection post\u201d of Office Superintendent, overlooking the respondent no.3. The appellant was held to be senior as per the rule. The decision was taken after due consideration of the relevant materials, including the fact that the respondent no.3 was drawing a lower pay scale than the appellant, in the feeder cadre. The Board also took into account that the Office Superintendent position required a service record without misconduct. Respondent no.3, it was noted, was a charge sheeted person, who had accepted the charges levelled against him. To determine the appellant to be senior to the respondent no.3 in the feeder cadre, the Board relied upon the criterion that \u201cPersons in the feeder grades given the same grading, those in higher scales of pay will rank senior to those in the lower scale of pay\u201d. It was noted that the pay scale of the appellant Rama Negi was Rs.9300-34800 with grade pay of Rs.4200 whereas, the pay scale of respondent no.3 Gopal Ram Arya was Rs.5200-20200 with grade pay of Rs.2800 and accordingly the inter se seniority of the appellant was found above the respondent no.3, in the feeder cadre. 8. Following the above Resolution on 11.1.2012 for appointment to the post of Office Superintendent, the Cantonment Board sought the advice of the Central Command, Lucknow furnishing the details of those under consideration. Since nothing happened thereafter for several months, the appellant filed the W.P (C) No.1465 of 2012 before the Uttarakhand High Court. Parallelly, the respondent no.3 filed the W.P (C) No.1645 of 2012 before the same High Court, challenging the Cantonment Board\u2019s Resolution No.28 dated 11.1.2012 in favour of the appellant. At that stage, the Central Command, Lucknow with its letter dated 23.11.2012 informed that the issue of promotion to the post of Office Superintendent falls entirely within the purview of the Cantonment Board, under Rule 7(1) of the Rules. 9. Prompted by the above clarification, the Cantonment Board in its meeting held on 25.3.2013 passed the Resolution No.8 where, after having examined the rule position, it was recorded that the appellant \u201cSmt. Rama Negi is the best, suitable and fit candidate for the post of Office Superintendent. Hence she is promoted from the post of Accountant to Office Superintendent w.e.f. the date of her taking charge as an Officiating Office Superintendent i.e. Feb 1st, 2012 as per rules mentioned in the agenda side.\u201d The Board relied upon the legal advice tendered to it on the basis of the O.M. dated 12.12.1988 issued by the Ministry of Personnel, Public Grievances and Pensions, which stated \u201cthat among the persons in the feeder grades given the same grading, those in the higher scales of pay will rank senior to those in the lower scale of pay.\u201d 10. Aggrieved by the above Resolution No.8 favouring the appellant, the respondent no.3 filed W.P (C) No.352 of 2013. In the meantime, the W.P (C) No.1465 of 2012 filed by the appellant for her promotion was dismissed as infructuous on 4.4.2013, by the High Court. 11. The two Writ Petitions filed by the respondent no.3 were analogously considered and the learned Single Judge in his judgment dated 25.2.2014 concluded that the respondent no.3/writ petitioner is senior and rejected the contention that the appellant is to be considered senior above the respondent no.3, by virtue of her higher pay scale in the post of Accountant in the feeder cadre. Insofar as the disciplinary proceeding pending against the respondent no.3, the learned Single Judge observed that the charge sheet was deliberately issued on 28.11.2011 to keep out the respondent no.3 from the zone of consideration. Such inference was drawn since no decision was taken on the charges by the authorities which according to the learned judge, demonstrate malice on their part. The chargesheet itself was brushed aside by saying that it was a minor irregularity not involving moral turpitude. Therefore, the respondent no.3 by virtue of his accelerated earlier promotion in the year 2005 in the feeder cadre and the 2009 promotion of the appellant, the appellant\u2019s promotion was found to be unmerited. On this basis, the respondent no.3 was asked to officiate as the Office Superintendent, replacing the appellant who hitherto was discharging such responsibility. The Court also directed the Cantonment Board to expeditiously conclude the departmental proceeding against the respondent no.3 within 3 months and if the same is not concluded, the learned Judge declared that the chargesheet shall be deemed to have been revoked, and thereafter denovo exercise for promotion to the post of Office Superintendent should be undertaken. With this, both writ petitions filed by the respondent no.3 were allowed by the learned Judge, under his judgment dated 25.2.2014. 12. Aggrieved by the judgment favouring the respondent no.3 in his two writ petitions, the appellant Rama Negi and the Cantonment Board filed their respective Special Appeal Nos.87 & 88 of 2014 and Special Appeal Nos.96 & 97 of 2014. While the Special Appeals were pending consideration before the Division Bench, the disciplinary proceeding was concluded with the report of the inquiry officer against the delinquent, and it was found that the Board incurred a loss of Rs.3,50,000/- on account of dereliction of duty by the respondent no.3 and accordingly the penalty of recovery of Rs.10,000/- from the delinquent\u2019s salary was ordered by the disciplinary authority, on 17.8.2016. 13. The Division Bench considered the basis for declaring the appellant to be senior to the respondent no.3 by virtue of her higher pay scale in the feeder cadre, and by adverting to the wrong O.M. dated 10.09.1985 (Incorrectly mentioned as 1995) conclusion was reached that the said O.M. does not provide for declaration of seniority, on the basis of higher pay scale. It was further held that the date of appointment in the feeder cadre should be the basis for considering inter se seniority for the purpose of promotion to the post of Office Superintendent. The disciplinary proceeding against the respondent no.3 was brushed aside in a summary manner by declaring that the same was initiated for the fault committed by the subordinate staff of the delinquent officer to deny him the benefit of promotion. With such finding the Special Appeals filed by the appellant and the Cantonment Board were dismissed, and the judgment rendered by the learned Single Judge favouring the respondent no.3 was affirmed by the Division Bench by their judgment dated 22.09.2017. 14. Taking exception to the above judgment, the present appeals are filed. We have heard the learned counsel for the parties and also read the relevant materials on record. 15. On the issue of inter se seniority, it is necessary to bear in mind that the respondent no.3 entered service earlier on 16.7.1990 but in the lower grade and was promoted to the post of Senior Clerk, only on 9.7.1997. In contrast, the appellant entered service on 1.9.1995 in the higher grade as a Steno-Typist (equivalent to Senior Clerk). Thus, she was senior to the respondent no.3 in the post, just below the feeder cadre. Overlooking the inter-se seniority position of the two, the respondent no.3 as a Scheduled Caste person was granted accelerated promotion on 1.9.2005, to the post of Revenue Superintendent. 16. Besides, the appellant by virtue of her higher pay scale in the post of Accountant in the feeder cadre, also deserves seniority above the respondent no.3 with his lower pay scale, on account of the provision made in the O.M. dated 12.12.1988. 17. The Rule 5-B (8) read with Annexure \u2018E\u2019 of the Rules makes it clear that the post of Office Superintendent is a \u201cselection post\u201d and the criterion for promotion is seniority-cum-merit. The parameters for determining promotion based on such criterion are well established by this Court. Justice S.C. Agrawal in B.V. Sivaiah v. K. Addanki Babu1, speaking for a three Judges Bench, held that, \u201c10. On the other hand, as between the two principles of seniority and merit, the criterion of \u201cseniority-cum-merit\u201d lays greater emphasis on seniority. In State of Mysore v. Syed Mahmood [AIR 1968 SC 1113 : (1968) 3 SCR 363 : (1970) 1 LLJ 370] while considering Rule 4(3)(b) of the Mysore State Civil Services General Recruitment Rules, 1957 which required promotion to be made by selection on the basis of seniority-cum-merit, this Court has observed that the Rule required promotion to be made by selection on the basis of \u201cseniority subject to the fitness of the candidate to discharge the duties of the post from among persons eligible for promotion\u201d. It was pointed out that where the promotion is based on seniority-cum-merit, the officer cannot claim promotion as a matter of right by virtue of his seniority alone and if he is found unfit to discharge the duties of the higher post, he may be passed over and an officer junior to him may be promoted. 11. In State of Kerala v. N.M. Thomas [(1976) 2 SCC 310 : 1976 SCC (L&S) 227] A.N. Ray, C.J. has thus explained the criterion of \u201cseniority-cum- merit\u201d: (SCC p. 335, para 38) \u201cWith regard to promotion the normal principles are either merit-cum-seniority or seniority-cum- merit. Seniority-cum-merit means that given the minimum necessary merit requisite for efficiency 1 (1998) 6 SCC 720 of administration, the senior though the less meritorious shall have priority. 17. ... While applying the principle of seniority- cum-merit for the purpose of promotion, what is required to be considered is the inter se seniority of the employees who are eligible for consideration. Such seniority is normally determined on the basis of length of service, but as between employees appointed on the same date and having the same length of service, it is generally determined on the basis of placement in the select list for appointment. ... 18. We thus arrive at the conclusion that the criterion of \u201cseniority-cum-merit\u201d in the matter of promotion postulates that given the minimum necessary merit requisite for efficiency of administration, the senior, even though less meritorious, shall have priority and a comparative assessment of merit is not required to be made. For assessing the minimum necessary merit, the competent authority can lay down the minimum standard that is required and also prescribe the mode of assessment of merit of the employee who is eligible for consideration for promotion. Such assessment can be made by assigning marks on the basis of appraisal of performance on the basis of service record and interview and prescribing the minimum marks which would entitle a person to be promoted on the basis of seniority-cum-merit. \u201d Justice Arijit Pasayat, speaking for a Division Bench in K. Samantaray v. National Insurance Co. Ltd.2, noted the following distinction, \u201c7. The principles of seniority-cum-merit and merit-cum-seniority are conceptually different. For the former, greater emphasis is laid on seniority, though it is not the determinative 2 (2004) 9 SCC 286 factor, while in the latter, merit is the determinative factor.\u201d 18. The appraisal of the facts before us reveals that the respondent no.3 faced a disciplinary proceeding following the chargesheet issued against him on 28.11.2011. But the High Court questioned the timing of the disciplinary action and observed that the same was issued to deny promotion to the respondent no.3. On this, the inquiry report finding (17.8.2016) is important, which indicates that the Cantonment Board suffered a pecuniary loss of Rs.3,50,000/- due to dereliction of duty by the delinquent. Significantly, the respondent no.3 accepted the charge and the disciplinary authority imposed the penalty of Rs.10,000/- recoverable from his salary. 19. It was a \u201cselection post\u201d and the appellant contrastingly had an unblemished service record all throughout her career. Moreover, she was found to be senior by the Board on 11.1.2012 and for this reason was recommended for promotion, in preference to the respondent no. 3. Adverting to the role of promotion committees, Justice P.B. Sawant, speaking for a three Judges bench in Union of India & Ors. vs. K.V. Jankiraman & Ors.3 has emphasized the necessity to consider the entire service record of the candidates in line for promotion, \u201c29. \u2026In fact, while considering an employee for promotion his whole record has to be taken into consideration and if a promotion committee takes the penalties imposed upon the employee into consideration and denies him the promotion, such denial is not illegal and unjustified. If, further, the promoting authority can take into consideration the penalty or penalties awarded to an employee in the past while considering his promotion and deny him promotion on that ground, it will be irrational to hold that it cannot take the penalty into consideration when it is imposed at a later date because of the pendency of the proceedings, although it is for conduct prior to the date the authority considers the promotion. \u2026\u201d 20. On the same aspect, Justice Kuldip Singh, also held for a Division Bench in Jagathigowda C.N. v. Chairman, Cauvery Gramina Bank & Ors.4,that the totality of the circumstances factor as a pivotal consideration with respect to seniority cum merit, 3 (1991) 4 SCC 109 4 (1996) 9 SCC 677 \u201c8. ... It is settled proposition of law that even while making promotions on the basis of seniority-cum-merit the totality of the service record of the officer concerned has to be taken into consideration. The performance appraisal forms are maintained primarily for the purpose that the same are taken into consideration when the person concerned is considered for promotion to the higher rank. ...\u201d (emphasis added) For a Division Bench in Haryana State Electronics Development Corporation Limited & Ors. Vs. Seema Sharma & Ors.5, Justice A.K. Ganguly also reiterated the distinguishable features for the criterion of seniority cum merit, and the requirement to consider the entirety of the candidate\u2019s service record, \u201c8. The principle of merit-cum-seniority puts greater emphasis on merit and ability and where promotion is governed by this principle seniority plays a less significant role. However, seniority is to be given weightage when merit and ability more or less are equal among the candidates who are to be promoted. 9. On the other hand, insofar as the principle of seniority-cum-merit is concerned it gives greater importance to seniority and promotion to a senior person cannot be denied unless the person concerned is found totally unfit on merit to discharge the duties of the higher post. The totality of the service of the employee has to be considered for promotion on the basis of seniority-cum-merit (see Jagathigowda, C.N. v. 5 (2009) 7 SCC 311 Cauvery Gramina Bank [(1996) 9 SCC 677: 1996 SCC (L&S) 1310: AIR 1996 SC 2733] ).\u201d (emphasis added) 21. While rejecting the appellant\u2019s seniority claim in the feeder cadre by virtue of her higher salary vis-\u00e0- vis the respondent no.3, the Division Bench, unfortunately, referred to the incorrect O.M. (dated 10.9.1985), overlooking the applicable O.M. (dated 12.12.1988) of the Ministry of Personnel. In this O.M., as noted earlier, it was clearly stated that the persons in the feeder cadre drawing higher scale will rank senior to those drawing lesser pay scale. Admittedly, the pay scale drawn by the appellant as an Accountant in the feeder cadre was higher than the respondent no.3 and therefore the benefit of O.M. (dated 12.12.1988) would surely accrue to the appellant, in the determination of her inter se seniority. However, the learned Division Bench by adverting to the incorrect O.M., wrongly rejected the contention that the higher pay scale can be the basis for claiming the seniority in the feeder cadre in the circumstances referred to in the O.M. dated 12.12.1988. 22. In the present case, the Cantonment Board in their deliberations made on 11.1.2012 not only considered the appellant to be senior to the respondent no.3 but also considered her to be more deserving for promotion as the best, suitable and fit candidate, for the responsible post. The respondent no.3 was penalized pursuant to the disciplinary proceeding for dereliction of duty and misconduct and he suffered the penalty of recovery of Rs.10,000/- from his salary. Seen in this context, the appellant was more deserving. That apart, the disciplinary action was not challenged by the respondent no.3. He cannot therefore set up a better claim for promotion, to a selection category post. 23. Insofar as the contention of the respondent no.3 that the issue of selection category post was not argued before the High Court, it is necessary to bear in mind that arguments based on the Rules were advanced by all the contesting parties before the High Court. Therefore, the status of the promotion post and the criterion for promotion specified in the Rules, must in our opinion, receive due consideration. 24. As far as the issue of higher pay scale being the basis for seniority in the feeder cadre, the same is clearly provided in the O.M. dated 12.12.1988. The issue received due consideration by the Cantonment Board and was answered in favour of the appellant. But this aspect was held against both the appellant and the Board, due to an inadvertent reference to the wrong Office Memorandum dated 10.09.1985 by the High Court. Having regard to the manner in which the issue was examined and decided by the Board, we deem it appropriate to endorse the Board\u2019s declaration of seniority in favour of the appellant, based on the reasoning contained in the Board\u2019s Resolution dated 25.3.2013. 25. This Court must also be mindful of the fact that the Cantonment Board applied the criterion of seniority-cum-merit and treated the post to be of the \u201cselection category\u201d. Moreover, the unblemished service record of the appellant vis-\u00e0-vis the pending disciplinary proceedings against the respondent no.3, (eventually resulting in penalty), were taken into account. All these circumstances in our opinion, weigh in favour of the appellant Rama Negi. Her Suitability for the selection post was attributable to two factors i.e. merit of the candidate and the inter-se seniority. Despite the difficulty in encapsulating the parameters for \u2018merit\u2019, a significant marker can be found in the unblemished record of the employee. A marred service record, though not an insurmountable bar, must carry some consequences, and it could be a comparative disadvantage in promotion for a selection post. The employer\u2019s preference for a person with a clean service record can be well appreciated. 26. Moreover, the higher pay in the same grade as per the applicable O.M., is a reliable indicator for determining inter-se seniority. In this Court\u2019s perception, the decision to prefer the appellant over the respondent no.3 for promotion is in tune with the applicable parameters. As such the contrary opinion by the High Court does not merit our approval. Accordingly, the Appeals stand allowed by setting aside the impugned judgment. The parties to bear their own cost. \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026J. [K.M. JOSEPH] \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026J. [HRISHIKESH ROY] NEW DELHI MARCH 2, 2022",
        "83742049": "IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MRS.JUSTICE S.SUJATHA WRIT PETITION No.13810/2018 (T - CUS) BETWEEN: M/s APPLE INDIA PRIVATE LIMITED, A COMPANY REGISTERED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956, HAVING ITS REGISTERED OFFICE AT 19TH FLOOR, CONCORDE TOWER C, UB CITY, NO.24, VITTAL MALLYA ROAD BENGALURU-560001 REP BY ITS MANAGER TRADE COMPLIANCE, SRI RAGHUNATH LAKSHMANAN ... PETITIONER [BY SRI S.S.NAGANAND, SENIOR COUNSEL FOR SRI SRIRANGA S., ADV.] AND: 1. UNION OF INDIA DEPARTMENT OF REVENUE MINISTRY OF FINANCE GOVERNMENT OF INDIA NORTH BLOCK, NEW DELHI-110000 THROUGH THE SECRETARY 2. THE ADDITIONAL COMMISSIONER OF CUSTOMS AIR CARGO COMPLEX MENZIES AVIATION BOBBA CORGO TERMINAL, DEVANAHALLI, BENGALURU-560300 3. THE PRINCIPAL COMMISSIONER OF CUSTOMS AIR CARGO COMPLEX -2- MENZIES AVIATION BOBBA CORGO TERMINAL, DEVANAHALLI, BENGALURU-560300 ...RESPONDENTS [BY SRI JEEVAN J. NEERALAGI, ADV. FOR R-1; SRI K.M.SHIVAYOGISWAMY, ADV. FOR R-2 & R-3.] THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE SHOW CAUSE NOTICE BEARING C.NO.VIII/10/14/2015 BACC SIIB DATED 27.06.2017 VIDE ANNEXURE-N ISSUED BY R-2. THIS PETITION HAVING BEEN HEARD AND RESERVED, IS COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT PASSED THE FOLLOWING: ORDER The petitioner has challenged the show cause notice dated 27.06.2017 issued by the 2nd respondent under Section 28 of the Customs Act, 1962. 2. The petitioner is engaged in the business of (a) Import and trading of finished goods such as Mobile Phones, Computers, iPods (i.e., music system), Apple Watch, iPads and accessories and (b) after-sales services for the products mentioned at (a) above. The after-sales services is referred to as \"Apple Care\" within the Apple world. It is submitted that the petitioner has no facilities to repair the products (other than computers) for its customers in India as an after-sales activity. Even as per the Foreign Trade Policy, the petitioner is not allowed to import refurbished products. As such, the petitioner imported new units to replace the repaired or malfunctioning units. It is contended that the petitioner was paying Additional Duty of Customs (Countervailing Duty) under Section 3 of the Customs Tariff Act, 1975 on the transaction value of the petitioner's goods imported under the Apple Care brand of services. The Customs Department at the Air Cargo Complex disputed the valuation methodology adopted by the petitioner on the subject goods on the premise that the Retail Sales Price (RSP)/Maximum Retail Price (MRP) has to be applied, not the Transaction Value. 3. It is submitted that on 14.12.2012, a representation was given by the petitioner company to the second respondent to provide an opportunity to put- forth the explanation inasmuch as the countervailing duty paid on the transaction value and not on MRP. On such opportunity provided, the second respondent on consideration of all the information provided by the petitioner regarding adoption of transaction value, issued a letter dated 27.02.2013 inter alia directing the petitioner to pay countervailing duty on all goods of Apple Care [warranty and out of warranty] as per Section 4A of the Act 1994. On further clarification sought by the petitioner, it was communicated that extension up to 30.04.2014 is granted for provisional assessment; there shall be no more extensions; the importer shall take all the steps to clear the warranty goods under Section 4A of the Act wherever the said provisions are applicable. On the request made by the petitioner seeking for final assessment of provisionally assessed goods, the Deputy Commissioner of Customs called for certain documents. 4. It is submitted that the petitioner was shocked to receive a show cause notice dated 27.06.2017 by the second respondent under Section 28 of the Act calling upon the petitioner to show cause as to why: [i] The goods imported as warranty replacement goods but a small portion of them subsequently sold for out of warranty valued at Rs.8,65,68,087/- should not be confiscated under Section 111[m] of the Customs Act, 1962. [ii] The differential duty of Rs.9,70,981/- should not be demanded and recovered from them under the provisions of Section 28[4] of the Customs Act, 1962. [iii] Interest under Section 28AA of the Customs Act, 1961 should not be levied and demanded from them. [iv] Penalty under Section 112 and 114A of the Customs Act, 1962 should not be imposed on them. Being aggrieved by the same, the petitioner is before this Court. 5. Learned Senior Counsel Sri.S.S.Naganand, representing the learned counsel for the petitioner would submit that the impugned show cause notice suffers from the vice of arbitrariness and lacks jurisdiction. The existence of an alternative remedy is not a bar to invoke the writ jurisdiction, as the impugned show cause notice has been issued invoking the extended period of limitation on the basis of unsubstantiated allegation of suppression with an intention to evade payment of customs duty. Limitation being a question of jurisdiction, the writ petition requires to be adjudicated on merits. 6. Learned senior counsel submitted that as per Section 28[1] of the Act, 1962, the extended period of limitation may be invoked only if there is [i] collusion, [ii] any willful mis-statement; [iii] suppression of facts. A mere bald allegation of suppression of facts has been made in the impugned show cause notice without any specific reference to any Act or omission on the part of the petitioner. The executive order dated 27.02.2013 states that all the goods under the Apple Care umbrella of services were to be assessed to customs duty under the RSP Valuation. It was argued that the impugned show cause notice is in complete contradiction to the circular dated 10.03.2017 issued by the Central Board of Excise and Customs. 7. The learned counsel for the revenue has filed statement of objections. It is contended that the writ petition is not maintainable before this court by-passing the efficacious alternative remedy provided under the Act. It was submitted that to meet the principles of natural justice, personal hearing was fixed on 30.1.2018 and the same has been adjourned at the request of the petitioner from time to time. The petitioner without attending before the original authority has rushed to this court. 8. It was argued that only during the queries raised on the petitioner while answering to question No.4 to the statement dated 28.6.2017, the petitioner admitted the fact that in very small percentage of cases, if the damage is not covered under warranty, they support the customer with a replacement item for exchange price. Further to query No.6 it was answered that the petitioner sell their products which is not covered under warranty. These material facts were placed before the original Authority vide their letter 20.6.2017. Till 19.6.2017, in all the correspondence with the department, the petitioner has stated that apple care products have been imported for warranty replacements. The said fact was suppressed by the petitioner with an intent to evade payment of differential duty arising out of such sale and hence the department invoking the extended period has issued the show cause notice. 9. Adverting to the rival submissions made by the learned counsel appearing for the parties, it is evident that the petitioner has invoked the writ jurisdiction without appearing before the statutory Authority. It is well settled law that there is no bar to entertain the writ petition if the impugned notice issued is without jurisdiction. To examine this aspect, it is apt to refer to the judgments referred to by the learned Senior counsel. 10. In the case of Calcutta Discount Co. Limited Vs. Income Tax Officer, Companies District I, Calcutta and another reported in AIR 1961 S.C. 372 the Hon'ble Apex Court has observed thus: \"Does the duty however extend beyond the full and truthful disclosure of all primary facts ? In our opinion, the answer to this question must be in the negative. Once all the primary facts are before the assessing authority, he requires no further assistance by way of disclosure. It is for - 10 - him to decide what inferences of facts can be reasonably drawn and what legal inferences have ultimately to be drawn. It is not for somebody else-far less the assessee--to tell the assessing authority what inferences-whether of facts or law should be drawn. Indeed, when it is remembered that people often differ as regards what inferences should be drawn from given facts, it will be meaningless to demand that the assessee must disclose what inferences-whether of facts or law-he would draw from the primary facts.\" This judgment was rendered in the context of interpreting the phrase \"Reason to believe\" under Section 34 of the Indian Income Tax Act, 1922. 11. In Uniworth Textiles Limited Vs. Commissioner of Central Excise, Raipur reported in (2013)9 SCC 753 the Hon'ble Apex Court has observed as under: \"12. We have heard both sides, Mr. R.P. Bhatt, learned senior counsel, appearing on behalf of the appellant, and Mr. Mukul Gupta, learned senior counsel appearing on behalf of the Revenue. We are not convinced by the reasoning of the - 11 - Tribunal. The conclusion that mere non-payment of duties is equivalent to collusion or willful misstatement or suppression of facts is, in our opinion, untenable. If that were to be true, we fail to understand which form of non-payment would amount to ordinary default? Construing mere non-payment as any of the three categories contemplated by the proviso would leave no situation for which, a limitation period of six months may apply. In our opinion, the main body of the Section, in fact, contemplates ordinary default in payment of duties and leaves cases of collusion or willful misstatement or suppression of facts, a smaller, specific and more serious niche, to the proviso. Therefore, something more must be shown to construe the acts of the appellant as fit for the applicability of the proviso. 19. Thus, Section 28 of the Act clearly contemplates two situations, viz. inadvertent non- payment and deliberate default. The former is canvassed in the main body of Section 28 of the Act and is met with a limitation period of six months, whereas the latter, finds abode in the proviso to the section and faces a limitation period of five years. For the operation of the - 12 - proviso, the intention to deliberately default is a mandatory prerequisite. 20. This Court in Aban Loyd Chiles Offshore Limited and Ors. Vs. Commissioner of Customs, observed:- \"20. The proviso to Section 28(1)can be invoked where the payment of duty has escaped by reason of collusion or any willful misstatement or suppression of facts. So far as \"misstatement or suppression of facts\" are concerned, they are qualified by the word \"wilful\". The word \"wilful\" preceding the words \"misstatement or suppression of facts\" clearly spells out that there has to be an intention on the part of the assessee to evade the duty.\" 21. The Revenue contended that of the three categories, the conduct of the appellant falls under the case of \"willful misstatement\" and pointed to the use of the word \"misutilizing\" in the following statement found in the order of the Commissioner of Customs, Raipur in furtherance of its claim: \"The noticee procured 742.51 kl of furnace oil valued at Rs. 54,57,357/- without payment of - 13 - customs duty by misutilizing the facility available to them under Notification No. 53/97-Cus. dt. 3.6.1997\" 22. We are not persuaded to agree that this observation by the Commissioner, unfounded on any material fact or evidence, points to a finding of collusion or suppression or misstatement. The use of the word \"willful\" introduces a mental element and hence, requires looking into the mind of the appellant by gauging its actions, which is an indication of one's state of mind. Black's Law Dictionary, Sixth Edition (pp 1599) defines \"willful\" in the following manner: - \"Willful -. Proceeding from a conscious motion of the will; voluntary; knowingly; deliberate. Intending the result which actually comes to pass... An act or omission is \"willfully\" done, if done voluntarily and intentionally and with the specific intent to do something the law forbids, or with the specific intent to fail to do something the law requires to be done...\" 23. In the present case, from the evidence adduced by the appellant, one will draw an - 14 - inference of bona fide conduct in favour of the appellant. The appellant laboured under the very doubt which forms the basis of the issue before us and hence, decided to address it to the concerned authority, the Development Commissioner, thus, in a sense offering its activities to assessment. The Development Commissioner answered in favour of the appellant and in its reply, even quoted a letter by the Ministry of Commerce in favour of an exemption the appellant was seeking, which anybody would have found satisfactory. Only on receiving this satisfactory reply did the appellant decide to claim exemption. Even if one were to accept the argument that the Development Commissioner was perhaps not the most suitable repository of the answers to the queries that the appellant laboured under, it does not take away from the bona fide conduct of the appellant. It still reflects the fact that the appellant made efforts in pursuit of adherence to the law rather than its breach. 24. Further, we are not convinced with the finding of the Tribunal which placed the onus of providing evidence in support of bona fide conduct, by observing that \"the appellants had not brought - 15 - anything on record\" to prove their claim of bona fide conduct, on the appellant. It is a cardinal postulate of law that the burden of proving any form of mala fide lies on the shoulders of the one alleging it. This Court observed in Union of India Vs. Ashok Kumar that: \"21......it cannot be overlooked that burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demand proof of a high order of credibility.\" 25. Moreover, this Court, through a catena of decisions, has held that the proviso to Section 28 of the Act finds application only when specific and explicit averments challenging the fides of the conduct of the assessee are made in the show cause notice, a requirement that the show cause notice in the present case fails to meet. In Aban Loyd Chiles Offshore Limited and Ors. (supra), this Court made the following observations: \"21. This Court while interpreting Section 11-A of the Central Excise Act in Collector of Central Excise v. H.M.M. Ltd. (supra) has - 16 - observed that in order to attract the proviso to Section 11-A(1) it must be shown that the excise duty escaped by reason of fraud, collusion or willful misstatement of suppression of fact with intent to evade the payment of duty. It has been observed: '2...Therefore, in order to attract the proviso to Section 11- A(1) it must be alleged in the show- cause notice that the duty of excise had not been levied or paid by reason of fraud, collusion or willful misstatement or suppression of fact on the part of the assessee or by reason of contravention of any of the provisions of the Act or of the Rules made thereunder with intent to evade payment of duties by such person or his agent. There is no such averment to be found in the show cause notice. There is no averment that the duty of excise had been intentionally evaded or that fraud or collusion had been practiced or that the assessee was guilty of wilful misstatement or suppression of fact. In the absence of any such averments in the show-cause notice it is difficult to understand how the Revenue could sustain the notice under the proviso to Section 11-A(1) of the Act\" - 17 - 22. It was held that the show cause notice must put the assessee to notice which of the various omissions or commissions stated in the proviso is committed to extend the period from six months to five years. That unless the assessee is put to notice the assessee would have no opportunity to meet the case of the Department. It was held: \"2....There is considerable force in this contention. If the department proposes to invoke the proviso to Section 11-A(1) , the show-cause notice must put the assessee to notice which of the various commissions or omissions stated in the proviso is committed to extend the period from six months to 5 years. Unless the assessee is put to notice, the assessee would have no opportunity to meet the case of the department. The defaults enumerated in the proviso to the said sub-section are more than one and if the Excise Department places reliance on the proviso it must be specifically stated in the show-cause notice which is the allegation against the assessee falling within the four corners of the said proviso....\" (Emphasis supplied) - 18 - 12. In Siemens India Limited Vs. State of Maharashtra and others reported in (2006)12 SCC 33 it is observed thus: \"Although ordinarily a writ court may not exercise its discretionary jurisdiction in entertaining a writ petition questioning a notice to show cause unless the same inter alia appears to have been without jurisdiction as has been held by this Court in some decisions including State of Uttar Pradesh v. Brahm Datt Sharma and Anr. AIR 1987 SC 943, Special Director and Another v. Mohd. Ghulam Ghouse and Another, (2004) 3 SCC 440 and Union of India and Another v. Kunisetty Satyanarayana, 2006 (12) SCALE 262], but the question herein has to be considered from a different angle, viz, when a notice is issued with pre-meditation, a writ petition would be maintainable. In such an event, even if the courts directs the statutory authority to hear the matter afresh, ordinarily such hearing would not yield any fruitful purpose [See K.I. Shephard and Others v. Union of India and Others (1987) 4 SCC 431 : AIR 1988 SC 686]. It is evident in the instant case that the respondent has clearly made up its mind. It explicitly said so both in the - 19 - counter affidavit as also in its purported show cause notice. In the said case, indeed a demand was made terming the same as a show-cause notice. The Hon'ble Apex Court has observed that the Statutory Authority has already applied his mind and has formed an opinion as regards the liability or otherwise of the appellant therein. 13. In the case of Uniworth Textiles, supra, the Hon'ble Apex Court was construing whether mere non payment of duty would come within the ambit of three categories contemplated by the proviso for which the extended period under the proviso to section 28 (1) of the Act could be invoked. In the said case the matter was carried before the Appellate Authorities as well as the Tribunal. The Appellate Authorities and the Tribunal indeed had given a finding in the matter. In that context, the Hon'ble Apex Court has observed that - 20 - in the absence of specific averments find in the show cause notice which is a mandatory requirement for commencement of action under the said proviso, and that nothing on record disclose a willful default on the part of the assessee, invoking the extended period of limitation under the said provision is held to be unjustifiable. 14. In the case of Collector of Central Excise, Indore Vs. Indore Bottling Company, Indore reported in (2003)11 SCC 438, supra, the Hon'ble Apex Court considering the finding of the Tribunal that the assessee had already informed collecting of the said charges in March 1994 as such issuing a show cause notice on 6.6.97 by the department relating to the period from1.3.1994 to 30.11.1996 is not a case to invoke section 11A of the Central Excise Act, 1944. 15. In the case of ACC Limited Vs. Union of India the assessee was before this court challenging - 21 - the issuance of third show cause notice after the proceedings were adjudicated on more than two occasions. In that context it was held that it is not permissible to reopen the issue, which stands concluded on the spacious ground that the company had made mis-statements, the third show cause notice is based on unsustainable grounds. 16. In the case of Union of India Vs. I.T.C. Limited and another reported in 1985 ECR 2013(Kar), this court after examining the show cause notice extensively, issued by the superintendent recorded that the said authority was trying to get round the order of the appellate collector and to undo the same. Accordingly, the reasoning and conclusion of the learned Judge on this aspect is held to be unexceptionable. 17. In the case of Godrej Food Limited and another Vs. Union of India and others reported in - 22 - 1993 SCC Online MP 66 the Hon'ble Madhya Pradesh High Court has observed that a mere mechanical repetition of the language of the provision in the show cause notice would not confer jurisdiction on the collector of the Central Excise to issue show cause notice under Section 11A of the Act beyond period of six months taking advantage of the proviso to that section. During the period of notice, no other material was shown to contend that there was any fraud played upon the department. The matter was relating to classification of the product. In the said case the impugned show cause notice was not the first of its kind to start a controversy. On the earlier show cause notice issued, an order has already been passed against the assessee and the Appellate Authority had confirmed the same. The order being passed on the earlier show cause notice and the assessee had approached the Appellate Authority, it was argued that appellate remedy under the Act is not an equally efficacious remedy. - 23 - Thus, the aforesaid judgments are held in a different context as discussed above and are not applicable to the facts of the present case. 18. It is true that the extended period of limitation under Section 28[1] of the Act can be invoked only in the following circumstances: [i] Collusion or [ii] any willful mis-statement or [iii] suppression of facts. It is the contention of the Revenue that during the period from January 2010 to July 2012, the petitioner has paid the duty on MRP value in respect of warranty replacements but for the period July 2012 to November 2012 customs duty was paid on Transaction Value and were clearing the warranty replacement goods on provisional assessment basis paying customs duty on MRP of the finished goods for the period December 2012 onwards. It is asserted by the petitioner that in - 24 - respect of the said periods, the petitioner has erroneously valued the products imported for replacements at the maximum retail price at the products sold in retail. These are all vexed questions which requires to be examined by the authorities. 19. Clauses 3.2 and 3.6 of the Circular dated 10.03.2017 issued by the Central Board of Excise and Customs reads thus: \"3.2 Ingredients for extended period: Extended period can be invoked only when there are ingredients necessary to justify the demand for the extended period in a case leading to short payment or non- payment of tax. The onus of establishing that these ingredients are present in a given case is on revenue and these ingredients need to be clearly brought out in the Show Cause Notice alongwith evidence thereof. The active element of intent to evade duty by action or inaction needs to be present for invoking extended period. 3.6 Power to invoke extended period is conditional: Power to issue notice for extended period is restricted by presence of active ingredients which indicate an intent to evade duty as explained above. Indiscriminate use of such restricted powers - 25 - leads to fruitless adjudications, appeals and reviews, inflates the figures of outstanding demands and above all causes unnecessary harassment of the assesses. Therefore, before invoking extended period, it must be ensured that the necessary and sufficient conditions to invoke extended period exists.\" 20. The relevant paragraphs of the Show Cause Notice dated 27.06.2017 impugned are quoted for ready reference: \"7. Whereas, letter dated 03.06.2017 was sent to the importer seeking details of imports of Applecare products i.e., warranty replacement units of IPods, Ipads, Iphones for the period 01.07.2012 to 09.12.2012. As, the importer has not furnished the details even after repeated reminder letters, a summons dated 14.06.2017 was sent under Section 108 of the Customs Act, 1962. The statement of Shri Raghunath Lakshmanan, working as Manager-Trade Compliance with the importer and authorized by the importer appeared before the Superintendent to render statement, which was recorded on 20.06.2017 [enclosed as Annexure-C]. Shri Raghunath Lakshmanan, had inter alia stated that the goods imported in general [referred to as finished goods by him] were imported for retail sale and sold to their distributors for further distribution in the channel, while in the case of Apple Care products [i.e., i-phone, i-pod & i-pad], they were imported to support their customers - 26 - during the warranty period. However he stated that a very small percentage of cases if found for any reason that the damage is not covered under warranty, they support the customers with a replacement for exchange price. 8. Further, the importer vide their letter dated 20.06.2017 furnished details for the period from 01.07.2012 to 09.12.2012, of the goods imported and sold out of warranty. 9. From the foregoing paras, it appears that the importer has contravened the provisions under Section 14 of the Customs Act, 1962, in as much as, they have not furnished the correct retail sales price [RSP] of the goods as envisaged under these provisions. The said issue of valuation of goods for Warranty replacements and applicability of MRP based assessment is dealt in the case of Bharti Telemedia Limited, Vs Commissioner of Customs [Import] Nava Sheva, vide case law 2016 [331] ELT 138 Tri Mumbai, where is held that where set top boxes brought for warrant and sold as replacement box to subscriber, CVD payable under Section 4A of Central Excise Act. Taking into cognizance the Retail Sale Price declared for clearance of i-phone, i-pod & i- pad, at about the same time, the differential duty liability on account of such incorrect RSP on the goods imported for warranty purpose, but sold out of warranty works out to Rs.9,70,981/- [Rupees Nine Lakhs Seventy Thousand Nine Hundred and Eighty One only], for the period from 01.07.2012 to - 27 - 09.12.2012, the details of which is enclosed as Annexure-D to this notice. 10. In view of above suppression of facts of RSP, it appears that the customs duty short paid is required to be recovered from them in terms of the provisions contained under Section 28[4] of the Customs Act, 1962 and interest under Section 28AA of the said Act. The goods imported as Warranty replacement goods but a small portion of them subsequently sold for out of warranty as explained in the foregoing paras are liable for confiscation under Section 111 [m] of Customs Act, 1962.\" 21. The reference made to the circular instructions issued by the Central Board of Excise and Customs inasmuch as clauses 3.2 and 3.6 no doubt deals with the ingredients for extended period, but on the examination of the show cause notice impugned it cannot be held that such ingredients are not present. In such circumstances, the show cause notice issued to submit a written explanation cannot be held to be ill founded. Writ petition is premature and deserves to be rejected. - 28 - I.A.No.1/19 has been filed by the petitioner submitting that the respondent has issued the notice dated 14.10.2019 calling upon the petitioner for personal hearing. The petitioner is at liberty to put forth the reply/explanation before the respondent No.2. The respondent No.2 shall consider the submissions/reply of the petitioner and shall take a decision in accordance with law without being influenced by any of the observations made herein above, after providing reasonable opportunity of hearing to the petitioner. All rights and contentions of the parties are left open. With the aforesaid observations and directions, writ petition as well as pending I.As stand disposed of. Sd/- JUDGE Dvr:",
        "1601209": "Reportable IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1696 OF 2010 [Arising out of SLP (CRL.) No.4624 of 2010] Main Pal ... Appellant Vs. State of Haryana ... Respondent JUDGMENT R. V. RAVEENDRAN J., Leave granted. 2. An FIR was registered on 23.3.1996 on the statement of one Prakashi Devi. She stated that on the night of 22/23.3.1996, while she and her daughter-in-law Sheela Devi were sleeping in her house, around 11.30 PM, the appellant jumped over the front wall of her house and broke the bulbs and ran away; that at that time, no male member was present in the house except the children; that around 00.30 AM the appellant again came into her house and touched her daughter-in-law Sheela Devi who woke up and raised an alarm; and that the appellant immediately ran away. The police investigated into the said complaint and submitted a report under Section 173 of the Code of Criminal Procedure (for short `the Code'). On that basis, the following charge was framed by the Judicial Magistrate, First Class, Karnal, against the appellant - \"That on 23.3.1996, after having made preparation for causing hurt or assault, you committed house trespass into the house of Smt. Prakashi Devi, and thereby committed an offence punishable under section 452 IPC within my cognizance. Secondly on the same date, time and place, you assaulted and used criminal force against abovenamed Prakashi Devi with intent to outrage her modesty and thereby committed an offence punishable under section 354 IPC and within my cognizance. And I hereby direct that you be tried on the above said charge by this court.\" (emphasis supplied) When the said charged was read over and explained to the appellant, he pleaded not guilty to the said charge and claimed trial. 3. Prakashi Devi was examined as PW-1. She reiterated what was recorded in the FIR, that the appellant came into the house around 11.30 PM and broke the bulbs, that he came again around 00.30 AM and touched her daughter-in-law (Sheela Devi) and when her daughter-in-law woke up and raised an alarm, the appellant ran away. In her cross-examination, Prakashi Devi stated that she has five sons; that only her husband and one son named Mahavir were staying with her; that the other four sons were married and were not staying with her; that on that night, her husband was away in the fields and her son Mahavir was also not present in the house. However, when confronted with her statement recorded in the FIR, she admitted having stated that when the appellant had come first time at around 11.30 PM and broke the outside bulbs, her son woke up and went out of the house. She also admitted that the appellant did not touch her nor teased her nor abused her. Her daughter-in-law Sheela Devi gave evidence as PW-2 and stated that she was married to one Jaibir who worked in the military services; that at 11 to 11.30 PM the accused scaled the door and broke the bulbs in the verandah of her house; that when she identified the accused and raised an alarm the accused ran away; that again he came around 00.30 AM by scaling the door and caught her hand; and that when she raised an alarm and when her mother-in-law woke up, he ran away. It was elicited in her cross-examination that the accused did not go towards her mother-in-law nor say anything to her mother-in-law; that she used to come to the village where her in-laws were residing, only when her husband came home; and that the house of her father-in-law was surrounded by the houses of his brothers and their sons. Both PW1 and PW2 stated that the house of the accused was at a distance of 15-16 houses from the house of Prakashi Devi; that the accused had never come into their house earlier; that their family and the accused were not on visiting terms with each other even during functions, marriages or death, though they were on visiting terms with others in the village. PW 2 also stated that she did not know the particulars of the dispute between the accused and her in-laws. The investigating officer was examined as PW-3. The accused examined a witness Ex-Sarpanch of the village as DW-1 and he stated that there was a quarrel between the accused and complainant's son Surinder about a water course and subsequently he came to know that the quarrel was converted into a false case against the accused by registering a false allegation that the accused had outraged the modesty of a woman. 4. The learned Magistrate by judgment dated 2.2.2001, held the accused guilty of offences under sections 452 and 354 Cr.PC and sentenced him for rigorous imprisonment for six months and a fine of Rs.1,000/- in default thereof simple imprisonment for one month. The appeal filed by the accused was dismissed by the Addl. Sessions Judge on 20.2.2002. The criminal revision filed by the appellant was disposed of by the High Court on 16.3.2010 upholding the conviction but reducing the sentence from six to four months rigorous imprisonment. That order is challenged by the accused. 5. One of the contentions urged by the accused before the appellate court and High Court was that the charge against him was that he attempted to outrage the modesty of Prakashi Devi (PW-1) whereas the evidence was to show that he attempted to outrage the modesty of her daughter-in-law Sheela Devi. He contended that as the charge levelled against him was not proved, and as he was not required to defend himself against a charge that he assaulted and outraged the modesty of Sheela Devi, he ought to have been acquitted. This was negatived by the appellate court and High Court holding that an accused cannot take advantage of a technical defect in framing the charge. It was held that mentioning the name of Prakashi Devi instead of the name of Sheela Devi in the charge was an error that did not prejudice the accused. 6. The following question therefore arises for our consideration: When the charge is that the accused assaulted `X' and outraged her modesty, but the evidence is that he assaulted `Y' to outrage her modesty, can the accused be punished, for having assaulting and outraging the modesty of `Y', even though he was not charged with any offence with reference to `Y', on the ground that the error or omission in the charge did not prejudice the accused or result in failure of justice. 7. Section 211 of the Code relates to the contents of the charge. It inter alia provides that every charge under the Code shall state the offence with which the accused is charged. Section 212 of the Code provides that the charge shall contain the particulars as to the time and place of the alleged offence, and the person (if any) against whom, or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged. Section 215 of the Code however clarifies that no error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice. Section 464 of the Code relates to effect of omission to frame, or absence of, or error in, charge. Sub-section (1) thereof provides that no finding, sentence or order of a court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charge, unless, in the opinion of the court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. Sub-section (2) of sec. 464 provides that if the court of appeal, confirmation or revision is of opinion that failure of justice has in fact been occasioned, it may -- (a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommended from the point immediately after the framing of the charge; (b) in case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit. 8. In Willie (William) Slaney vs. State of Madhya Pradesh [AIR 1956 SC 116] this court explained the concepts of \"prejudice to the accused\" and \"failure of justice\" thus:- \"(6) Before we proceed to set out our answer and examine the provisions of the Code, we will pause to observe that the Code is a code of procedure and, like all procedural laws, is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the Code is to ensure that an accused person gets a full and fair trial along certain well-established and well-understood lines that accord with our notions of natural justice. If he does, if he is tried by a competent court, if he is told and clearly understands the nature of the offence for which he is being tried, if the case against him is fully and fairly explained to him and he is afforded a full and fair opportunity of defending himself, then, provided there is `substantial' compliance with the outward forms of the law, mere mistakes in procedure, mere inconsequential errors and omissions in the trial are regarded as venal by the Code and the trial is not vitiated unless the accused can show substantial prejudice. That, broadly speaking, is the basic principle on which the Code is based. (7) Now here, as in all procedural laws, certain things are regarded as vital. Disregard of a provision of that nature is fatal to the trial and at once invalidates the conviction. Others are not vital and whatever the irregularity they can be cured; and in that event the conviction must stand unless the Court is satisfied that there was prejudice. Some of these matters are dealt with by the Code and wherever that is the case full effect must be given to its provisions.\" This Court then examined the question as to when a procedure adopted could be said to have worked actual injustice to the accused and held : \"Except where there is something so vital as to cut at the root of jurisdiction or so abhorrent to what one might term natural justice, the matter resolves itself to a question of prejudice. Some violations of the Code will be so obvious that they will speak for themselves as, for example, a refusal to give the accused a hearing, a refusal to allow him to defend himself, a refusal to explain the nature of the charge to him and so forth. These go to the foundations of natural justice and would be struck down as illegal forthwith. It hardly matters whether this is because prejudice is then patent or because it is so abhorrent to well-established notions of natural justice that a trial of that kind is only a mockery of a trial and not of the kind envisaged by the laws of our land because either way they would be struck down at once. Other violations will not be so obvious and it may be possible to show that having regard to all that occurred no prejudice was occasioned or that there was no reasonable probability of prejudice. In still another class of case, the matter may be so near the border line that very slight evidence of a reasonable possibility of prejudice would swing the balance in favour of the accused. ... The Code is emphatic that `whatever' the irregularity it is not to be regarded as fatal unless there is prejudice.\" \"It is the substance that we must seek. Courts have to administer justice and justice includes the punishment of guilt just as much as the protection of innocence. Neither can be done if the shadow is mistaken for the substance and the goal is lost in a labyrinth of unsubstantial technicalities. Broad vision is required, a nice balancing of the rights of the State and the protection of society in general against protection from harassment to the individual and the risks of unjust conviction. Every reasonable presumption must be made in favour of an accused person; he must be given the benefit of every reasonable doubt. The same broad principles of justice and fair play must be brought to bear when determining a matter of prejudice as in adjudging guilt. But when all is said and done what we are concerned to see is whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself. If all these elements are there and no prejudice is shown the conviction must stand whatever the irregularities whether traceable to the charge or to a want of one.\" \"In adjudging the question of prejudice the fact that the absence of a charge, or a substantial mistake in it, is a serious lacuna will naturally operate to the benefit of the accused and if there is any reasonable and substantial doubt about whether he was, or was reasonably likely to have been, misled in the circumstances of any particular case, he is as much entitled to the benefit of it here as elsewhere; but if, on a careful consideration of all the facts, prejudice, or a reasonable and substantial likelihood of it, is not disclosed the conviction must stand; also it will always be material to consider whether objection to the nature of the charge, or a total want of one, was taken at an early stage......But these are matters of fact which will be special to each different case and no conclusion on these questions of fact in any one case can ever be regarded as a precedent or a guide for a conclusion of fact in another, because the facts can never be alike in any two cases however alike they may seem. There is no such thing as a judicial precedent on facts though counsel, and even judges, are sometimes prone to argue and to act as if there were.\" (emphasis supplied) In Gurbachan Singh v. State of Punjab [AIR 1957 SC 623] following Willie Slaney, this Court held: \"......in judging a question of prejudice, as of guilt, courts must act with a broad vision and look to the substance and not to technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself.\" In Shamnsaheb M. Multtani vs. State of Karnataka - 2001 (2) SCC 577, this Court considered the meaning of the expression \"failure of justice\" occurring in section 464 of Cr.PC. This Court held thus : \"The crux of the matter is this : Would there be occasion for a failure of justice by adopting such a course as to convict an accused of the offence under section 304-B IPC when all the ingredients necessary for the said offence have come out in evidence, although he was not charged with the said offence? ... a conviction would be valid even if there is any omission or irregularity in the charge, provided it did not occasion a failure of justice....The criminal court, particularly the superior court should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage. One of the cardinal principles of natural justice is that no man should be condemned without being heard, (audi alteram partem). But the law reports are replete with instances of courts hesitating to approve the contention that failure of justice had occasioned merely because a person was not heard on a particular aspect. However, if the aspect is of such a nature that non-explanation of it has contributed to penalizing an individual, the court should say that since he was not given the opportunity to explain that aspect there was failure of justice on account of non-compliance with the principle of natural justice.\" The above principles are reiterated in several decisions of this Court, including State of West Bengal vs. Laisal Haque - AIR 1989 SC 129, State of A.P. vs. Thakkidiram Reddy - 1998 (6) SCC 554, Dalbir Singh v. State of UP [2004 (5) SCC 334], Dumpala Chandra Reddy vs. Nimakayala Bali Reddy - 2008 (8) SCC 339 and Sanichar Sahni vs. State of Bihar - 2009 (7) SCC 198. 9. The following principles relating to sections 212, 215 and 464 of the Code, relevant to this case, become evident from the said enunciations: (i) The object of framing a charge is to enable an accused to have a clear idea of what he is being tried for and of the essential facts that he has to meet. The charge must also contain the particulars of date, time, place and person against whom the offence was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged. (ii) The accused is entitled to know with certainty and accuracy, the exact nature of the charge against him, and unless he has such knowledge, his defence will be prejudiced. Where an accused is charged with having committed offence against one person but on the evidence led, he is convicted for committing offence against another person, without a charge being framed in respect of it, the accused will be prejudiced, resulting in a failure of justice. But there will be no prejudice or failure of justice where there was an error in the charge and the accused was aware of the error. Such knowledge can be inferred from the defence, that is, if the defence of the accused showed that he was defending himself against the real and actual charge and not the erroneous charge. (iii) In judging a question of prejudice, as of guilt, the courts must act with a broad vision and look to the substance and not to the technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly, and whether he was given a full and fair chance to defend himself. 10. The respondent relied upon the decision of this court in State of Himachal Pradesh v. Geeta Ram [2000 (7) SCC 452]. In that case the respondent was chargesheeted for an offence under section 376 IPC and section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The Magistrate committed the case to Sessions Court which was specified as a special court under the Act. The special court framed a charge only for an offence under section 376 IPC and after trial convicted the respondent under section 376 IPC and sentenced him to ten years imprisonment. The High Court set aside the conviction on the technical ground that the trial court had no jurisdiction as it was a special court specified in under the SC & ST (Prevention of Atrocities) Act. This Court reversed the decision of the High Court on the ground that a special court under the Act being a sessions court, it continued to have jurisdiction to try the case for the offence under section 376 IPC. That matter was considered under section 465 of the Code and not relevant on the facts of this case. 11. As noticed above, in this case, the charge was that appellant committed trespass into the house of Prakashi Devi for assaulting Prakashi Devi, and assaulted the said Prakashi Devi and outraged her modesty. The accused concentrated his cross-examination with reference to the said charge and elicited answers showing that he did not assault or outrage the modesty of Prakashi Devi. He did not try to challenge the evidence let in to show that he had tried to outrage the modesty of Sheela Devi, as he was not charged with such an offence. The evidence of PW-1 and PW-2 was that the appellant did not touch or tease or abuse Prakashi Devi. Their evidence was that he touched/caught the hand of Sheela Devi and when she raised an alarm he ran away. When the charge was that the accused attempted to commit trespass into the house of Prakashi Devi with intent to outrage the modesty of Prakashi Devi, the conclusion of the appellate court and the High Court that there was no failure of justice if he is punished for the offence of having assaulted Sheela Devi and outraging her modesty, is opposed to principles of fair play and natural justice embodied in sections 211, 212, 215 and 464 of the Code. When the accused is charged with having entered the house of Prakashi Devi and assaulted the said Prakashi Devi with intent to outrage her modesty and when the accused defended himself in regard to the said charge and concentrated on proving that the said charges were not true, he cannot be convicted for having assaulted and outraging the modesty of someone else, namely Sheela Devi. The accused did not have any opportunity to meet or defend himself against the charge that he assaulted Sheela Devi and outraged her modesty. Nor did he proceed with his defence on the understanding that he was being charged with having committed the offence with reference to Sheela Devi. One of the fundamental principles of justice is that an accused should know what is the charge against him so that he can build his defence in regard to that charge. An accused cannot be punished for committing an offence against `Y' when he is charged with having committed the offence against `X' and the entire defence of the accused was with reference to charge of having committed offence against `X'. 12. The illustrations under a provision of a Statute offer relevant and valuable indications as to meaning and object of the provision and are helpful in the working and application of the provision. Illustration (e) under section 215 of the Code, as contrasted from illustration (d) under that section, throws some light on this issue. The said illustrations are extracted below : \"(d) A is charged with the murder of Khoda Baksh on the 21st January, 1882. In fact, the murdered person's name was Haidar Baksh, and the date of the murder was the 20th January, 1882. A was never charged with any murder but one, and had heard the inquiry before the Magistrate, which referred exclusively to the case of Haidar Baksh. The Court may infer from these facts that A was not misled, and that the error in the charge was immaterial. (e) A was charged with murdering Haidar Baksh on the 20th January, 1882, and Khoda Baksh (who tried to arrest him for that murder) on the 21 st January, 1882. When charged for the murder of Haidar Baksh, he was tried for the murder of Khoda Baksh. The witnesses present in his defence were witnesses in the case of Haidar Baksh. The Court may infer from this that A was misled, and that the error was material.\" Applying the guidance offered by the said illustrations and the legal principles evolved by this Court, the position will be as follows : If Sheela Devi alone had been present at the house at the time of the incident and the accused had assaulted and outraged the modesty of the said Sheela Devi, but in the charge the name of the victim had been erroneously mentioned, say as Sushila Devi or Prakashi Devi (though there was no person by such name), and the inquiry exclusively referred to the assault and outraging the modesty of Sheela Devi, the court could infer that the accused was not misled and the error in the charge was immaterial. On the other hand, if two persons were present in the house at the time of the incident namely Prakashi Devi and Sheela Devi and the accused is charged with trespassing into the house of Prakashi Devi, and assaulting and outraging the modesty of the said Prakashi Devi, and the witnesses refer only to the assault and outraging the modesty of Sheela Devi, the court will have to infer that the accused was prejudiced, if the accused had solely concentrated and focused his defence and entire cross-examination to show that he did not commit the offences against Prakashi Devi. 13. The court having charged the accused with the offence of having trespassed into the house of Prakashi Devi with intent to assault her and having further charged him for having assaulted the said Prakashi Devi by outraging her modesty, convicts him on the ground that though he did not assault or outrage the modesty of Prakashi Devi, he had outraged the modesty of Sheela Devi, that would lead to failure of justice. There was a material error in the charge as it violated the requirement of sub-section (1) of section 212 of the Code, that the charge shall contain particulars as to the person against whom the offence was committed. There were two women present at the house at the time of the alleged incident, namely Prakashi Devi and her daughter-in-law Sheela Devi. In view of the specific charge, the accused concentrated on showing that the charge was false. He did not attempt to meet the case made out in the trial that the offence was against Sheela Devi. The accused was thus clearly misled by the error in the charge which caused prejudiced to the accused thereby occasioning failure of justice. Therefore, we are of the view that there should be a new trial after charging him with the offence of outraging the modesty of Sheela Devi. 14. The appeal is therefore allowed, the conviction of the accused is set aside and the matter is remitted to the trial court with a direction for a new trial after framing a charge by substituting the words \"her daughter-in-law Sheela Devi\" for the words \"abovenamed Prakashi Devi\", in the second part of the charge. ...........................J (R. V. Raveendran) .............................J (H. L. Gokhale) New Delhi; September 7, 2010.",
        "1404484": "PETITIONER: STATE OF ANDHRA PRADESH Vs. RESPONDENT: CHEEMALAPATI GANESWARA RAO & ANR. DATE OF JUDGMENT: 23/04/1963 BENCH: MUDHOLKAR, J.R. BENCH: MUDHOLKAR, J.R. SUBBARAO, K. DAYAL, RAGHUBAR CITATION: 1963 AIR 1850 1964 SCR (3) 297 CITATOR INFO : R 1973 SC2210 (14,24) F 1975 SC1309 (8,15) ACT: Criminal Trial-Joinder of charges and persons-Conspiracy, charge of-If illegal after conspiracy fructifies-Examination of accused-Right of accused to examine himself as witness-If duty of Court to inform accused of right-Pardon, legality of-Approver-Refreshing memory by reference to document-If Permissible-Admissibility of evidence-Account Books -Absenee of entries of payments alleged -Code of Criminal Procedure, 1898 (5 of 1898), ss. 233 to 339,342,337,529,537-Indian Evidence Act. 1872(1 of 1872), ss.5,11,34,159,160. HEADNOTE: A and B were tried together at one trial, A of offences under ss. 120-B, 409,477-A and 471 read with s. 476 Indian Penal Code and B of offences under ss. 120-B,409 read with 109 298 and 471 read with 467 Indian Penal Code. The Sessions judge who tried them convicted A of all the offences charged and B of the first two charges. On appeal the High Court acquitted both of them. The State appealed to the Supreme Court. The respondents contended: (i) that there was a misjoinder of charges and persons on account of the cumulative use of the various clauses of s. 239 of the Code of Criminal Procedure which was not permissible, (ii) that no charge of conspiracy could be framed after the conspiracy had fructified, (iii) that the Sessions judge had failed to inform the accused of their right under 3. 342 ( 4 ) of the Code to examine themselves as witnesses, (iv) that the pardon had been granted to the approver illegally, (v) that the approver had been allowed illegally to refresh his memory by reference to documents at the time when he was examined before the Court, and (vi) that the account books of certain firms which contained no entries regarding payments alleged to have been made to them were inadmissible in evidence. Held that there was no misjoinder of charges and of accused persons. It is open to the Court to avail itself cumula- tively of the provisions of the different clauses of s. 239 of the Code for the purpose of framing charges. Sections 233 to 236 do not override the provisions of s. 239. But the provisions of ss. 234 to 236 can also be resorted to in the case of a joint trial of several persons permissible under s. 239. Even if there was a misjoinder the High Court was incompetent to set aside the convictions without coming to the definite conclusion that the misjoinder bad occasioned failure of justice. Re: Fankaralapati Gopala Rao, A.I.R. 1936 Andhra 21 and T.B. Mukherji v. State, A.I.R. 1954 All. 501, not approved. State of Andhra Pradesh v. Kandimalla Subbaiah, [1962] 2 S.C.R. 194, K.V. Kriahna Murthy Iyer v. State of Madras, A.I.R. 1954 S.C. 406, Willi (William) Slaney v. State of Madhya Pradesh. (1955) 2 S.C.R. 1140, Birichh Bhuian v. The State of Bihar. (1964) Supp. 2 S.C.R. 328. Held further that where offences have been committed in pursuance of a conspiracy, it is legally permissible to charge the accused with these offences as well as with the conspiracy to commit those offences. Conspiracy is an entirely independent offence and though other offences are committed in pursuance of the conspiracy, the liability of the conspirators for the conspiracy itself cannot disappear. 299 State of Andhra Pradesh v. Kandimalla Subbaiah. (1962) 2 S.C.R. 194, relied on. S, Swamirathnam v. State of Madras, A.I.R. 1957 S.C. 340 and Natwarlal Sakarlal Mody v. State of Bombay, Cr. A. No. 111 of 1959, dt 19.1.196 1, referred to. Held further, that there was no violation of the provisions of s. 342 of the Code. The Sessions Judge had erred on the side of overcautiousness by putting every circumstance appearing in the evidence to the accused. Copies of the questions put to the accused were given to them before hand. Any point left over in the questions was covered in the written statements filed by the accused. In such circumstance the length of the questions or of the examination could not prejudice the accused. Further, there was no duty cast on the Court to inform the accused of their right under s. 342 (4) to examine themselves as witnesses. They were represented by counsel who must have been aware of this provision. Held further, that the pardon was legally granted to the approver under s. 337 of the Code and was a valid pardon. The offences with which the accused were charged were all such in respect of which a pardon could be granted under s. 337 (1). The offences under s. 467 read with s. 471 which was exclusively triable by a court of sessions and the offence under s. 477-A which was mentioned in s. 337 (1) itself and thus both fell within the ambit of s. 377 (1). the offence under s. 409. and consequently the offence under s. 120-B also, was punishable with imprisonment for life or with imprisonment not exceeding ten years and was an \"offence punishable with imprisonment which may extend to ten years\" within the meaning of s. 337 (1). Further, tinder G.O. No. 3106 dated September 9, 1949, the Madras Government, the power of a District Magistrate to grant pardon was specifically conferred on Additional District Magistrates, and the Additional District Magistrate, (Independent) who granted the pardon in the present case was competent to do so. Held further, that the Sessions judge acted legally and properly in allowing the approver to refresh his memory, while deposing, by referring to the account books and other documents produced in the case. Where a witness has to depose to a large number of transactions and those transactions are referred to or mentioned either in the account books or in other documents there is nothing wrong in allowing the witness to refer to the account books and the documents 300 while questions are put to him. Such a course is specifically permitted by ss. 19 and 160 of the Evidence Act. Held further, that the account books of the firms which contained no entries with respect to payments alleged to have been made were not relevant under s. 34 of the Evidence Act, as that section is applicable only to entries in account books regularly kept and says nothing about non- existence of entries. But they were relevant under s. I I of the Act as the absence of the entries would be inconsistent with the receipt of the amounts which was a fact in issue. They were also relevant under s. 5 to prove the facts alleged by the prosecution that payments were never made to these firms and that those firms maintained their accounts in the regular course of business, and both these were relevant facts. Queen Empress V. Grees Chander Banerjee (1884) I.L.R. IO Cal, 1024, and Ram Pershad Singh v. Lakhpati Koer, (1902) I.L.R. 30 Cal. 231, referred to. JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 39 of 1961. Appeal by special leave from the judgment and order dated January 30, 1960 of the Andhra Pradesh High Court (in Criminal Appeals Nos. 277 and 278 of 1957 and Criminal Revision Case No. 810 of 1957. A.S.R. Chari, K. R. Choudhry and P.D. Menon, for the appellant. Bhimasankaran and R. Thiagarajan for respondent No. 1. R. Mahalingier, for respondent No. 2. 1963. April 23. The judgment of the Court was delivered by MUDHOLKAR J.-The respondent No. I was tried before the Court of Sessions, Visakhapatnam for offences under s. 120-B, Indian Penal Code, s. 409, s. 477-A and s. 471 read with s. 467, I.P.C. while respondent No. 2 was tried for an offence under s. 120-B and for offences under ss. 409 read with s. 109, 477-A and 471 read with s. 467, I.P.C. Each of the respondents was convicted of the first two offences, but the respondent No. I alone was convicted of the other two offences. Various sentences were passed against them by the Additional Sessions judge, Visakhapatnam, who presided over the court. The respondents preferred appeals before the High Court challenging their convictions and sentences. The State on the other hand preferred an application for revision under s. 439, Cr. P.C. for the enhancement of the sentences passed on the respondents. The High Court allowed the two appeals, acquitted the respondents and dismissed the application for revision preferred by the State. The State of Andhra Pradesh has come up before this Court in appeal by obtaining special leave under Art. 136 of the Constitution. The prosecution case in so far as it is material for the decision of this appeal is as follows : In the year 1929 the Andhra Engineering Co., which was originally a partnership firm formed by one D.L.N. Raju was converted into a private limited, company with its headquarters at Visakhapatnam. (We shall refer to this company throughout as the AECO). It obtained licences from the Government under the Electricity Act for supply of electrical energy to Visakhapatnam, Anakapalli and some other places. As the AECO did not have the necessary capital to undertake the work Raju floated in the year 1933 a public limited company called Visakhapatnam Electric Supply Corporation Ltd., (referred hereafter as VESCO) and another in the year 1936 called the Anakapalli Electric Supply Corporation Ltd. The AECO transferred its licences for the supply of electrical energy to the consumers of Visakhapatnam to VESCO and similarly transferred to AECO the licence to supply electrical energy to consumers at Anakapalli. The AECO was appointed Managing Agent for each of these corporations under separate agreements. Some time later other industrial concerns, the Andhra Cements Ltd., Vi jayawada and the East Coast Ceremics, Rajahmurthy were started apparently by Raju himself- and the AECO was appointed the Managing Agent of each of these concerns. The original managing agency agreement in favour of AECO with respect to VESCO was for a period of 15 years i.e., from 1933 to 1948 and was later renewed for the remaining term of the currency of the licence granted by the Government under the Electricity Act. A mention may be made of the fact that in June, 1952 the VESCO undertaking was acquired by the Government under the provisions of the \"'Electricity Undertaking Acquisition Act\" but nothing turns on it. The VESCO had its own Board of Directors while the AECO had also its own separate Board of Directors. The VESCO had no Managing Director but at each meeting of its Board of Directors one of the Directors used to be elected Chairman. The same practice was followed at the meeting of the general body of the shareholders. The AECO on the other band always had a Managing Director, first of whom was D.L.N. Raju. He died in the year 1939 and was succeeded by R.K.N.G. Raju, an Advocate of Rajahmundry. This person, however, did not shift to Visakhapatnam on his becoming the Managing Director but continued to stay most of the time at Rajahmundry. According to the prosecution both these concerns were running smoothly and efficiently during the lifetime of D.L.N. Raju because he was personally attending to their affairs. His successor, however, apart from the fact that be continued to be staying mostly at Rajahmundry, was also interested in several other ventures, including a sugar factory at Dewas in Central India. Eventually many of those ventures failed. According to the prosecution the second Raju was not bestowing sufficient care and attention on the affairs of VESCO. The AECO as Managing Agents of VESCO had appointed in the year 1939 one D.V. Appala Raju, a trusted employee, as its representative and as the secretary of VESCO. In 1944 this person resigned from his appointments and started his own business in radio and electrical goods in the name of D. Brothers. He was succeeded by T. Visweswara Rao, P.W. 6, an employee of the AECO. The respondent No. 1, Ganeswara Rao was also an old employee of AECO, having been appointed a stenotypist in the year 1923 on an initial salary of Rs. 40/- p.m. Eventually he became the Head Clerk therein. He pressed his claim for appointment as Secretary of VESCO and representative of the Managing Agents at Visakhapatnam and R .H.G. Raju appointed him to that post. All this is not disputed. The respondent No. 1, even after his appointment on two posts connected with VESCO, continued to work with the AECO also whose business had by then been confined only to that of Managing Agents of the four companies floated by D.L.N. Raju. It is the prosecution case that as Secretary of VESCO and the resident representative of the Managing Agents, the respondent No. I was attending to the day to day affairs of VESCO, which included the receiving of all sums of money due to VESCO, spending money for the purpose of VESCO attending to the appointment, supervision and control of the staff of VESCO, purchasing materials required for the purpose of VESCO and supervising over the accounts of VESCO. He was thus all important with respect to the every day affairs of VESCO. His dual capacity enabled the respondent No. I to earn the confidence not only of the Directors of AECO but also of those of VESCO. The accounts maintained by the VESCO used to be explained by him not only to the Directors but also to the shareholders. The knowledge of the Financial position of VESCO obtained by them used to be derived essentially from the respondent No. 1. As Secretary of VESCO it was his duty to convene the meetings of the Board of Directors, to present before them the periodical statement of receipts and expenditure of VESCO, to convene meetings of the General Body, to prepare the Managing Agents' report and the Director's report as also to see to the presentation of auditors' report and the statement of accounts. The explanations of the Managing Agents and the Directors of VESCO with respect to the items mentioned in the orders of the Board used also to be placed by him before the shareholders. It was also his duty to have the accounts of VESCO audited by the auditors elected by the general body and to produce before the auditors the relevant accounts, vouchers, bank statements and so on. There were no complaints about the management of the affairs of VESCO or the AECO till the end of 1946 or the beginning of 1947. One significant fact, however, which occurred prior to 1946 - is referred to by the prosecution. Till the -year 1945 Messrs C. P. Rao & Co., a firm of Chartered Accountants were the auditors of VESCO but after the respondent No. I became Secretary. one B. Rajan was elected Auditor not only for VESCO but for all the other four concerns, including AECO. This person was Auditor for Greenlands Hotel at Visakhapatnam, of which the respondent No. I was a Director. R.K.N.G. Raju took till towards the end of 1947 and died at Madras in April, 1948. According to the prosecution the respondent No. I wanted to take advantage of this fact and conceived of a scheme for misappropriating as much money belonging to VESCO as possible before the managing agency agreement of AECO came to an end in October, 1948. The respondent No. I secured the promotion of the approver K.V. Ramana, who was originally Accounts Clerk to the post of Senior Accountant. Similarly K. V. Gopala Raju was transferred from the post of Stores Clerk to the general department and K.S.N. Murty, the discharged accused, was appointed Stores Clerk in his place. Later, however, Murty was also got transferred to the general section and replaced by P. W. 18, Srinivasa Rao originally a stores boy. The approver who was originally an Accounts clerk with the AECO was, it may be mentioned, appointed a cashier in VESCO in 1946 at the instance of the respondent No. I and was thus beholden to him. He was later promoted as Senior Accountant and in his place the respondent No. 2 Laksbminarayana Rao was appointed the Cashier. According to the prosecution the respondent No. I took both the approver and Lakshminarayana Rao in his confidence as also some other persons \"known and unknown\" for carrying out his nefarious purpose, namely, the misappropriation of the funds of VESCO during the subsistence of AECO's managing agency of VESCO. The conspiracy is said to have been hatched in the year 1947 and falsification of accounts and misappropriation of funds of VESCO went on till the end of the accounting year. The term of the managing agency was renewed in 1943 and AECO con- tinued to be managing agents until the VESCO was taken over by the Government in 1952. The respondent No. I continued to be the Secretary of VESCO and resident representative of the Managing Agents throughout the period of conspiracy. After the death of R.K.N.G. Raju, it was discovered that the AECO was indebted to many concerns which were under its managing agency, the liability being shown either as that of AECO or that of R.K.N.G. Raju personally. Again, the VESCO was shown as indebted to the Andhra Cement,; to the extent of Rs. 42,000/-. This amount was, however, paid by the AECO from the funds of VESCO. The respondent No. I and some of his friends were in search of a rich and substantial man who would be amenable to them to fill the post of Managing Director of AECO. Eventually their choice fell on G. V. Subba Raju, P. W. 25, a resident of Manchili, who held a large number of shares in the AECO and who was, besides, related to R.K.N.G. Raju by marriage. It is said that this person has not received much education and knows only bow to sign his name in English. He was assured that by consenting to become the Managing Director be would not be required to discharge onerous duties and that the respondent No. I would look to all the affairs of VESCO. He was also told that apart from signing important papers which may be sent to him by the respondent No. I from time to time to Manchili or wherever be might be would have no work to do. He agreed and was elected Managing Director of AECO in the middle of 1948. Upon this understanding he accepted the position offered to him. The VESCO used to receive large amounts of money from high tension power consumers such as the railways, K. G. Hospital, the Port Administration, the Andhra University etc., by cheques. But domestic consumers usually paid their bills in cash to the bill collectors who used to hand over their collections to the respondent No. 2. The respondent No. 2 was asked by the respondent No. I to maintain a private note book. In \"that book payments which used to be made by respondent No. 2 on the basis of slips issued by the respondent No. I (which included payments to his relatives or to business firms in which he was personally interested) used to be noted and the amount totalled up at the end of the day. This amount was posted in VESCO's Cash Handover Book as \"'by safe\" indicating that this amount was kept in the safe, though in fact it was not. On the basis of the entries in the Handover Book the final accounts were written up. The respondent No. I opened four personal accounts in different banks, including the Imperial Bank of India (as the State Bank then was). When the respondent No. I had to issue a personal cheque on any of these Banks he used to ask the second respondent to send an equivalent amount to the Bank concerned for being credited to his account. These amounts also used to be noted in the private note book and entered \"by safe' in the Handover Book. Another thing which the respondent No. I initiated was opening a heading in the ledger called \"advance purchase of materials.\" Amounts which had been misappropriated used to be posted therein though in fact no orders were placed for any material. It may be mentioned that Subba Raju used to visit Visakhapatnam twice a month and check up the account books. At that time it used to be represented to him that the amounts which were shown to be in the safe and not found therein (but which were actually misappropriated) had been sent to the Bank for being deposited. Apparently Subba Raju was fully satisfied with this and other explanations and, therefore, he appointed one C. S. Raju, who was the Manager of Andhra Cements to supervise over the affairs of VESCO. Apparently because of this a new method of misappropriation was adopted by the respondents by starting in the VESCO account books, an account called \"suspense account\". A lakh of rupees passed through that account. Amounts which were misappropriated used to find their way in this account. A new cash book was also said to have been prepared by the conspirators with the object of covering up the misappropriations which had been made. Subba Raju was not satisfied with the nature of supervision exercised by C. S. Raju over the affairs of VESCO because he used to look only at the cash book entries of the days on which he paid visits to VESCO's office, to which he used to go with previous intimation. Besides that, C. S. Raju's management of Andhra Cements had landed it into a loss of Rs. 30,000/-`. Because of all these things he had C. S. Raju replaced towards the end of the year 1951 by one Subbaramayya, a retired Finance Officer from the Madras Electricity Board both as a Director of Andhra Cements and as a Supervisor over the accounts of VESCO. Subbaramayya took his work seriously and called for information on a number of points from the respondent No. 1. He, however, was unable to obtain any information. In January, 1952 he therefore brought one S. G. Krishna Aiyar who had vast experience in the maintenance of accounts of electrical undertaking's having been Chief Accountant of the South Madras Electric Supply Corporation, to undertake an investigation and then to act as Financial Adviser. In the meantime on November 29, 1951 there was a meeting of the General Body at which the accounts were, among other things, to be considered. There was a considerable uproar at that meeting because the respondent No. 1 said that the Auditor's report had not been received. The shareholders felt that the report had been received but was being suppressed or deliberately withheld. However, the meeting was postponed and eventually held on December 9, 1951. On that date the respondent No. 1 produced the auditor's report (Ex. p. 234 of which Ex. P. 235 is a printed copy). According to the prosecution the report is a forged document. That was also the feeling-of a number of shareholders who wanted to see the original but one Dutt who was Chairman of the meeting after seeing Ex. P. 234 said that the report seemed to be a genuine one. S. G. Krishna Aiyar after his appointment in January, 1952, made close enquiry and submitted an interim report. That report showed that during the period 1948-49 Rs. 33,271-10-0 shown as paid to the Andhra Power System were in fact not paid. The respondent No. 1 on being asked to explain said that he would give his explanation to the Managing Director. The Interim Report showed that there was a shortage of about Rs. 90,000/- for this period. On February 12, 1952 the respondent No. I wrote to the Managing Director admitting his responsibility and agreed to make good the amounts found short or such other amounts as would be found short up to the end of March, 1952. Further scrutiny of the accounts was being carried out by Krishna Aiyar and in his subsequent report he pointed out that Rs. 2,38,000/- which were shown as having been paid to the Andhra Power System had actually not been paid. In fact in April, 1952 the Collector attached VESCO properties for realising this amount. On April 30, 1952 the respondent No. 1, by selling some of his property, himself paid Rs. 50,000/- to the Andhra Power System towards the sum due to it from VESCO and had promised to pay the balance shortly thereafter. He was given time for doing so but he failed to pay it. The Directors of VESCO thereafter authorised K. S. Dutt, one of the Directors to lodge a complaint with the police which he accordingly lodged on May 19, 1952. On the next day the police placed an armed guard around the office of the respondent No. I and seized a number of papers. As a result of investigation they found that there was a total misappropriation of Rs. 3,40,000/-. On May 13, 1954 a chargesheet was filed against the two respondents as well as Murti and the approver Ramana. OD September 13, 1954 Ramana offered to make a full Confession to the Additional District Magistrate (Independent) who was empowered to grant pardon under s. 337 of i he Code of Criminal Procedure. He, however, directed Ramana to make his confession before a SubMagistrate. The latter accordingly made a confession on November 15, 1954 and on November 17, 1954 the Additional District Magistrate (Independent) granted him pardon and that is how he came to be examined as a witness in this case. As already stated, the Additional Sessions judge convicted both the respondents, the respondent No. I in respect of each head of the offences with which he was charged and the respondent No. 2 in respect only of the offences of conspiracy and misappropriation. The High Court set aside the conviction of the respondents on a number of grounds. In the first place according to the High Court, joint trial of two or more persons in respect of different offences cornmitted by each of them is illegal and that here as they were charged with having committed offences under s. 120-B, s. 409, s. 477-A and s. 476/467, I.P.C. they could not be tried jointly. According to it the provisions of s. 239 were of no avail. Next according to the High Court even if s. 239 is applicable its provisions are subject to those of s. 234 and as such the trial being for more than three offences was impermissible. Then according to the High Court offences under. s. 409 and s. 471/467 are of different kinds and are not capable of joint commission. Therefore, they could not be jointly tried. Further, according to the High Court where a conspiracy has yielded its fruits the conspirators can be charged with the actual offences committed and not with conspiracy to commit those offences. Charge of conspiracy, according to the High Court, can be validly made only when the prosecution establishes that every conspirator expected to receive a personal benefit from it and that the prosecution has not been able to establish that the respondent No. 2 or the approver evidently had any such expectations since they did not in fact receive any corresponding benefit. In so far as the respondent No. 2 is concerned the High Court has held that since he was charged with a specific offence under s.409 I.P.C. he could not be convicted of mere abetment of an offence. The approver's evidence was held by the High Court to be inadmissible because the pardon granted to him was illegal. The High Court has also held that his evidence is unreliable and further that the Additional Sessions judge was in error in allowing him to refresh his memory by referring to various documents in a manner not permitted by s. 159 of the Evidence Act. The High Court has further stated that inadmissible evidence was taken on record by the Additional Sessions judge, namely, account books of Billimoria Brothers, maintained in Gujrati and further that the Additional Sessions judge was in error in allowing the prosecution to use those account books for establishing absence of entries with regard to certain payments alleged in the VESCO books to have been made to them. Finally, the High Court held that the examination of the respondent under s. 342 of the Code was unfair for a number of reasons and that the Additional Sessions judge had failed to perform an important duty in that he did not call the attention of the respondents to the provisions of s. 342 which enable an accused person to give evidence in his own behalf Mr. Bhimasankaram, appearing for the two respondents, however, has not sought to support the judgment of the High Court on all these points. The points which he urged are briefly these: (1) That there was a misjoinder of charges and persons in that the various provisions of s. 239 were clubbed together and an omnibus charge of conspiracy was framed which on its face was one likely to embarrass the respondents and make their task of defending themselves difficult. (2) The procedure adopted in the investiga- tion and committal stages was irregular. (3) Irrelevant evidence was introduced and some evidence was introduced in a manner not authorised by the Evidence Act. (4) That the Court abused its powers under s.342, Cr. P.C. while conducting the examination of the respondents. (5) The evidence of the approver was inadmissible because the pardon granted to him was illegal, that, in any case, it is unreliable, was so found even by the Sessions judge and must, therefore, be rejected. If the evidence of the approver is left out the remaining evidence would be inadequate to sustain the prosecution case. We shall deal with Mr. Bhimasankaram's contentions in the order in which we have set them out. The first question for consideration is whether there was a misjoinder of parties and of persons. The first charge is in respect of the conspiracy alleged to have been entered into by the two respondents, K. V. Ramana, the approver, and others \"known and unknown\" to commit criminal breach of trust of the funds of VESCO and, in order to screen its detection, to falsify the accounts of VESCO and to use forged documents as genuine. On the face of it this is a valid charge. But certain objections have been taken to it with which we will deal at the appropriate place. The second charge is for an offence of criminal breach of trust punishable under s. 409 and the accusation therein is that the two respondents along with Ramana, misappropriated 69 items aggregating to a little over Rs. 3,20,000/-. It is clear from the charge that some of the amounts were misappropriated between April, 1947 and March, 1950, some between April, 1947 and March, 1949, some between April, 1947 and March, 1951 and quite a large number between September, 1947 and March, 1950 and a still large number between April, 1951 and March, 1952. It is thus apparent that offences committed within a space of 12 months were tried along with offences committed beyond that period. Unless, therefore, the provisions of s. 239 are applicable it would follow that there was a misjoinder of charges. The third charge is that the two respondents, along with the approver Ramana made false entries on seven different dates in the account books between September 19, 1947 and March 18, 1952 and thus committed an offence under s. 477-A, I.P.C. The fourth charge is that the two respondents, along with the approver Ramana forged six documents on different dates between March 28, 1949 and November 12, 1951 and thus committed an offence under s. 471 read with s. 467, I.P.C. As we have pointed out earlier the respondent No. I alone was convicted by the Additional Sessions judge in respect of the third and fourth charges. Mr. Bhimasankaram supports the reason given by the High Court for coming to the conclusion that there was a misjoinder of charges. The main reasons upon which the conclusion of the High Court is based are firstly that there could be no clubbing together of the provisions of the various clauses of s. 239 and secondly that the respondents were charged with more than three offences of the same kind and that this was in contravention of s. 239 (c). In coming to the conclusion that the provisions of various clauses of s. 239 cannot be applied cumulatively the High Court has relied upon the decision in Re: Vankavalapati Gopala Rao (1). There the learned judges have held thus: \"These clauses are mutually exclusive and they cannot be simultaneously applied and to construe them as supplementing each other would be enlarging the scope of the exceptions. Each clause is an exception to the general rule enacted in s. 233, Cr. P.C. If such a combination is permissible, all persons accused of offences described in cls. (a) to (g) can be tried together in one case which certainly involves a bewildering multiplicity of charges and which would obviously set at naught the salutary principle contained in s. 233.\" (p. 24) In support of this view the High Court in that case has relied upon the decision in T. B. Mukherji v. State (2 ) and referred to the decision in Singarachariar v. Emperor (3) and D. K. Chandra v. The State(,). Before considering these decisions it will be useful to look at the scheme of Chapter XIX of the Code of Criminal Procedure which deals with the charge. The chapter is split up into two sub-heads, '-Form of charges\" and \"Joinder of charges.\" Sections 221 to 232 are comprised under the first sub-head and ss. 233 to 240 in the second. Sections 221 to 223 deal with the framing and content of charge. s. 224 deals with the interpretation of the language of the charge and s. 225 with the effect of errors in the charge. Sections 226 to 231 deal with the power of the court with regard to framing and altering charges and the procedure to be adopted at the trial where a charge is found to be defective or there is no charge or where a new charge is to be (1) A.I.R. 1956 Andhra 21. (2) A.I.R. 1954 All. 501. (3) A,I,R, 1934 Mad 673. (4) A,I.R. 1952 Bom.. 177. F.B, framed. Section 232 deals with the power of the. appellate court or the High Court when it discovers that there is material error in the charge. Then we come to the other sub-head of this chapter. Section 233 provides that for every distinct offence of which any person is accused there shall be a. separate charge. It thus lays down the normal rule to be followed in every case. But it also provides that this will be subject to the exceptions contained in SS. 234, 235, 236 and 239. The first three provisions relate to the framing of charges against a single accused person. Section 234 (1) deals with the trial of a person for offences of the same kind not exceeding three committed within the space of 12 months from the first to the last of such offences and s. 231 (2) what is meant by the expression 'offences of' the same kind'. This provision lifts partially the ban on the trial of a person for more than one offence at the same trial. Section 235(1), however, goes a step further and permits the trial of a person for more offences than one if they are so connected together as to form the same transaction. Thus under this provision if the connection between the various offences is established the limitations placed by s. 234(1) both as regards the number and the period during which the offences are alleged to have been committed will not apply. Full effect cannot possibly be given to this provision if we hold that it is subject to the limitation of s.234(1). Sub-section (2) of S. 235 deals with a case where an offence falls within two definitions and sub-s.(3) deals with a case in which a number of acts are alleged against an accused person, different com- binations of which may constitute different offences. Then we come to s. 236 which provides that if a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences and further provides that any number of such charges may be tried together. It also permits that charges could be framed against an accused person in the alternative if the court thinks fit. Thus, this is a special provision available in case of doubt and is neither subject to the limitations prescribed by s. 233 nor those of the other preceding provisions. Now, if the respondent No. 1 were alone tried upon the second, third and the fourth charges the provisions of s. 235(1) could have been pressed in aid if the allegations were that the offences were so connected together as to form one and the same transaction and the validity of the trial would not have been open to any attack. Similarly if the second respondent were alone tried on the second charge his trial would not have been open to any objection if the allegation were that the offences were so connected together as to form the same transaction. Here, however, we have a case where the prosecution alleges that there was additionally a conspiracy to which apart from the two respondents the approver and some other persons were parties and where in both the respondents were tried together. A conspiracy must be regarded as one transaction and, there- fore, a single individual charged with it could be tried with the aid of s. 235(1) for all the acts committed by him in furtherance or in pursuance of the conspiracy without the limitations imposed by s.234(1). For, where all the acts are referable to the same conspiracy their connection with one another is obvious. The only provision in the Code which permits the joint trial of more than one person is s. 239 and what we have to see is whether under that provision the two respondents could have been jointly tried for the offences with which they were charged. Let us, therefore, examine closely the provisions of s. 239. It will be useful to set out the provisions of that section which run thus : \" The following persons may be charged and tried together, namely:- (a) persons accused of the same offence committed in the course of the same transaction; (b) persons accused of an offence and per- sons accused of abetment, or of an attempt to commit such offence; (e) persons accused of more than one offence of the same kind within the meaning of section 234 committed by them jointly within the period of twelve months; (d) persons accused of different offences committed in the course of the same transaction; (e) persons accused of an offence which includes theft, extortion, or criminal misappropriation, and persons accused of receiving or retaining, or assisting in the disposal or concealment of, property possession of which is alleged to have been transferred by any such offence committed by the first-named persons, or of abetment of or attempting to commit any such 1st-named offence; (f) persons accused of offences under sec- tions 411 and 414 of the Indian Penal Code or either of those sections in respect of stolen property the possession of which has been transferred by one offence; and (g) persons accused of any offence under Chapter XII of the Indian Penal Code relating to counterfeit coin, and persons accused of any other offence under the said Chapter relating to the same coin, or of abetment of or attempting to commit any such offence; and the provisions contained in the former part of this Chapter shall, so far as may be, apply to all such charges.\" This first thing to be noticed is that s. 239 does not read as if its various clauses can be applied only alternatively. On the other hand at the end of cl. (f) there is a conjunction 'and'. If the intention of the Legislature was that the provisions of these clauses should be available only alternatively it would have used the word \"or\" and not \"and\" which has the opposite effect. Grammatically, therefore, it would appear that the provisions of the various clauses are capable of being applied cumulatively. The opening words of the section show that it is an enabling provision and, therefore, the Court has a discretion to avail itself cumulatively of two or more clauses. Of course a Court has the power to depart from the grammatical construction if it finds that strict adherence to the grammatical construction will defeat the object the Legislature had in view. The concluding portion of s. 239 shows that the provisions contained in the former part of Chapter XIX shall, as far as may be, apply to the charges framed with the aid of s. 239. Does this mean that the provisions of s. 233, 234, 235, and 236 must also be complied with? Obviously, s. 233 does not override the provisions of s. 239. Section 234 cannot also be regarded as an overriding provision because reading it that way will lead to the clear result that whereas several accused persons can be charged at the same trial with any number of different offences committed by them in the course of the same transaction they cannot be tried also for -offences of the same kind exceeding three in number and committed beyond a space of 12 months from the first to the last. It could not have been the intention of the Legislature to create such a situation. Again, as already stated, s. 234(1) does not override the provisions of s. 235(1) which permits trial of a person for more offences than one committed during any period provided they are so connected together as to form one transaction. Unless we read s. 234(1) as not enacting a fetter on s. 235(1), it may not be possible to give full effect to the latter. Now, since s. 234(1) cannot be properly read a,,; overriding s. 235(1) there is no valid reason for construing it as overriding the provisions of s. 239 either. There are also other reasons which point to this conclusion which we will set out while considering the argument advanced by Mr. Bhimasankaram. Mr. Bhimasankaram contended that s, 239 must be read at least subject to ss. 234(1) and 235(1) on the ground that if there are certain restrictions with respect to the trial of a single accused there is no reason why those restrictions will disappear if an accused person is tried along with several other persons. Thus he points out that where several persons are accused of more offences than one of the same kind committed by them jointly within a period of 12 months, the number of offences for which they could be tried cannot exceed three. In this connection he relied upon the words \"within the meaning of s. 224\" occurring in cl. (c) of s. 239. These words, he contended, clearly show that cl. (c) of s. 239 is subject to the provisions of s. 234. In our opinion the words \" within the meaning of s. 234\" indicate that what was meant by the words offence of the same kind\" in cl. (c) of s. 239 is the same thing as was meant by the identical expression used in s. 234(1) and defined in s. 234(2) and nothing more. If it was the intention of the Legislature to provide that the number of offences for which several accused persons could be tried under cl. (c) of s. 239 should be limited to three as provided in s. 234(1), the Legislature would either have Said \"'persons accused of more offences than one of the same kind not exceeding three in number\" or may have used the words \"person accused of more than one offence of the same kind to the extent permissible under s. 234\". Language of this kind would have made perfectly clear that cl. (c) of s. 239 was subject to s. 234(1). As already stated, if s. 239(c) is construed as being subject to s. 234(1), there would be this anomaly that whereas the same accused person could be charged with and tried jointly for any number of offences of different kinds committed by them, for more than three offences of the same kind committed by them jointly there will have to be a separate trial with respect to such offences. Surely such could not have been the intention of the legislature. The object of enacting s. 239 was to avoid multiplicity of trials and the only limitation which could properly be placed on the trial of several persons for the same kind of or different offences would be that which considerations of justice and fairness would require. No doubt, such a construction would also give rise to the result that whereas so far as the trial of a single accused person is concerned the charges must be limited to three offences committed by him within the space of 12 months from the first to the last of such offences, there would be no such limitation when along with that accused person there are one or more persons who have jointly committed those offences. The reason for this possibly is that the Legislature did not want to differentiate between cases where any number of different offences were committed jointly by a group of persons from cases where any number of offences of the same kind were committed by a group of persons. According to Mr. Chari s. 235(1) cannot be construed as having an overriding effect on s. 239 because whereas it contemplates acts so connected together as to form the same transaction resulting in more offences than one, s. 239(d) contemplates offences committed in the course of the same transaction and nothing more. The question is whether for the purposes of s. 239(d) it is necessary to ascertain any- thing more than this that the different offences were committed in the course of the same transaction or whether it must further be ascertained whether the acts are intrinsically connected with one another. Under s. 235(1) what has to be ascertained is whether the offences arise out of acts so connected together as to form the same transaction, but the words \"so connected together as to form\" are not repeated after the words \"'same transaction\" in s. 239. What has to be ascertained then is whether these words are also to be read in all the clauses of s. 239 which refer to the same transaction. Section 235(1), while pro- viding for the joint trial for more than one offence, indicates that there must be connection between the acts and the transaction. According to this provision there must thus be a connection between a series of acts before, they could be regarded as forming the same transaction. What is meant by \"same transaction\" is not defined anywhere in the Code. Indeed, it would always be difficult to define precisely what the expression means. Whether a transaction can be regarded as the same would necessarily depend upon the particular facts of each case and it seems to us to be a difficult task to undertake a definition of that which the Legislature has deliberately left undefined. We have not come across a single decision of any Court which has embarked upon the difficult task of defining the expression. But it is generally thought that where there is proximity of time or place or unity of purpose and design or continuity of action in respect of a series of acts, it may be possible to infer that they form part of the same transaction. It is, however, not necessary that every one of these elements should co-exist for a transaction to be regarded as the same. But if several acts committed by a person show a unity of purpose or design that would be a strong circumstance to indicate that those acts form part of the same transaction. The connection between a series of acts seems to us to be an essential ingredient for those acts to constitute the same transaction and, therefore, the mere absence of the words \"so connected together as to from\" in cl. (a), (c) and (d) of s. 239 would make little difference. Now, a transaction may consist of an isolated act or may consist of a series of acts. The series of acts which constitute a transaction must of necessity be connected with one another and if some of them stands out independently, they would not form part of the same transaction but would constitute a different transaction or transactions. Therefore, even if the expression \"'same transaction\" alone had been used in s. 235(1) it would have meant a transaction consisting either of a single act or of a series of connec- ted acts. The expression \"same transaction\" occurring in cls. (a), (c) and (d) of s. 239 as well as that occurring in s. 235(1) ought to be given the same meaning according to the normal rule of construction of statutes. Looking at the matter in that way, it is pointless to inquire further whether the provisions of s. 239 are subject to those of s. 236(1). The provisions of sub-s. (2) and (3) of s. 235 are enabling provisions and quite plainly can have no overriding effect. But it would be open to the court to resort to those provisions even in the case of a joint trial of several persons permissible under s. 239. Section 236 is also an enabling provision to be availed of in case of doubt and it is meaningless to say that s. 239 is subject to s. 236. ]Bearing in mind the fact that the provisions in the \"former part\" of Chapter XIX are applicable to charges made with the aid of s. 239 only \"so far as may be\" it would not be right to construe s. 239 as being subject to the provisions of ss. 233 to 236. It was contended by Mr. Chari that the expression \"former part\" would apply to the first sub- division of chapter XIX which deals with the form and content of the charges and the powers of the court with regard to the absence of charge and alteration of charge. We cannot, however, give the expression such a restricted meaning. For, even in the absence of those words, the earlier provisions could not have been ignored. For, it is a rule of construction that all the provisions of a statute are to be read together and given effect to and that it is, therefore, the duty of the Court to construe a statute harmoniously. Thus, while it is clear that the sections preceding s. 239 have no overriding effect on that section,, the courts are not to ignore them but apply such of them as can be applied without detracting from the provisions of S.239. Indeed, the very expression 'so far as may be' empha- sises the fact that while the earlier provisions have to be borne in mind by the Court while applying s. 239 it is not those provisions but the latter which is to have an overriding effect. Apart from this, the question whether the provisions of ss. 233 to 236 have or have no overriding effect on s. 239 is not strictly germane to the question considered by the High Court that is, clubbing together all the provisions of the various clauses of s. 239. Whether they can or cannot be read cumulatively must be determined by consideration of the language used in those clauses. We have already indicated how those clauses may be grammatically read. On a plain construction of the provisions of s. 239, therefore, it is open to the Court to avail itself cumulatively of the provisions of the different clauses of s. 239 for the purpose of framing charges and charges so framed by it will not be in violation of the law, the provisions of ss. 233, 234 and 235 notwithstanding. The decision of the Allahabad High Court in T. R. Mukherji's case (IL), is directly in point and is clearly to the effect that the different clauses of s. 239 are mutually exclusive in the sense that it is not possible to combine the provisions of two or more clauses in any one case and to try jointly several persons partly by applying the provisions of one clause and partly by applying those of another or other clauses. A large number of decisions of the different High Courts and one of the Privy Council have been considered in this case. No doubt, as has been rightly pointed out in this case, separate trial is the normal rule and joint trial is an exception. But while this principle is easy to appreciate and follow where one person alone is the accused and the interaction or intervention of the acts of more persons than one does not come in, it would, where the same act is committed by several persons, be not only inconvenient but injudicious to try all the several persons separately. This would lead to unnecessary multiplicity of trials involving avoidable inconvenience to the witnesses and avoidable expenditure of public time and money. No corresponding advantage can be gained by the accused persons by following the procedure of separate trials. Where, however, several offences are alleged to have been committed by several accused persons it may be more reasonable to follow the normal rule of separate trials. But here, again, if those offences are alleged not to be wholly unconnected but as forming part of the same transaction the only consideration that will justify separate trials would be the embarrassment or difficulty caused to the accused persons in defending themselves. We entirely agree with the High Court that joint trial should be founded on some 'principle'. But we find it difficult to appreciate what seems to (1) A. I. R. 1954 All. 501. be the view of the High Court that because each `clause of s. 239 enunciates a separate principle those principles are, so to speak, mutually' exclusive and cannot be cumulatively resorted to for trying several persons jointly in respect of several offences even though they form part of the same transaction. The High Court has propounded that the connection described in each of the various clauses is mutually exclusive, that no two of them can exist simulta- neously in any case and that one cannot, therefore, have in any case persons connected with one another in two or more ways. In other words, as the High Court puts it, persons included in two or more of the groups cannot all be tried together and that since there is absolutely nothing to connect one group with any other, the persons of one group cannot be tried with those of any other. No reason has been stated in support of this view. Let us consider whether there is anything intrinsically incompatible in combining two clauses of s. 239. Take cls. (a) and (b). Clause (a) says that persons accused of the same offence committed in the course of the same transaction may be charged and tried together. Clause (b) says that persons accused of an offence and persons accused of abetment, or, of an attempt to commit such offence may also be charged and tried together. Now, if persons A, B and C are tried for an offence of murder what intrinsic difficulty would there be in trying X, Y and Z of abetment of the same offence? The transaction in which all of them have participated is the same and the abetment by X, Y and Z of the offence committed by A, B and C would itself establish the connection of their acts with those of X, Y and Z. Next, let us take cls. (a) and (c). Clause (c) provides that persons accused of more than one offence of the same kind within the meaning of s. 234 committed by them jointly within the period of twelve months could also be charged and tried together. Let us consider these clauses along with another illustration. Two persons A and B enter a house at night and first together commit the murder of a man sleeping there and then also his wife. Each of them has committed two offences and each of them participated in the same offence. Why can they not be tried jointly for both murders and why should there be two trials for the two murders ? The offences are of the same kind and must be deemed to have been committed in the course of the same transaction because of association and mutual connection. Now, supposing in the illustration given A killed the man and B killed his wife. Under cl. (c) they could be tried together because the offences are of the same kind. It would be ridiculous to say that they cannot be tried together for jointly committing the murder of the man and the wife because cl. (a) and (c) cannot be combined. For, without combining these two clauses their joint trial for the two offences in each of which both have participated would be impermissible. Then take s. (a) and (d). Under cl. (d) persons accused of different offences committed in the course of the same transaction can be tried together. Let us suppose that a group of persons are accused of having been members of an unlawful assembly the common object of which was to overawe by sheer force another group of persons and take forcible possession of a piece of land. Some of the members of the unlawful assembly carried axes with them while some others carried lathis and attacked the other group. During the course of the attack one person from the second group was killed, as a rest of blows with an axe inflicted by the aggressors A, B and C. Two persons of the second group sustained grievous hurt as a result of lathi blows and one person sustained simple hurt. Let us say that the grievous hurt was caused as a result of lathi blows given by X and Y, simple hurt was caused by lathi blows given by Z. Here, the offences committed were those under ss. 147, 302, 325 and 323, I.P.C. The offences being different and the persons commiting the offences being different, they could not be tried jointly only with the help of cl. (a) of s. 239. Nor again, could they be tried jointly only with the help of cl. (d). Yet the transaction in which the offences were committed is the same and there is a close association amongst the persons who have committed the different offences. What intrinsic difficulty is there in trying them all together simultaneously availing of cls. (a) and (d) of s. 239? These are enabling provisions which circumstance implies that the court may avail itself of one or more of these provisions unless doing so would amount to an infringement of any of the provisions of the Code. All these persons can be jointly tried for offences under s. 147 by recourse to cl. (a). So also A, B and C could be jointly tried together for an offences under s. 302. X and Y can be charged not only with offences under ss. 147 and 325, I. P.C. but also under s. 302 read with s. 149. Similarly Z can be charged with offence's under ss. 147, 323 and offences under s. 302 read with s. 149 and s. 325 read with s. 149. The same offence committed by all of them is that under s. 147 and all of them can be tried jointly in respect of that offence under cl. (a). Similarly, if we take cl. (d) by itself all of them can be tried jointly for the different offences committed by each of them in the course of the same transaction and if cl. (a) is unavailable they could not be tried for the offence under s. 147 at the same trial. This means that the trial for an offence under s. 147 will have to be separated from the trial for the different offences committed by them. It is difficult to appreciate what purpose would be served by separating the trial for the same offence from the trial for different offences. To repeat, the object of the legislature in enacting s. 239, Cr.P.C. clearly was to prevent multiplicity of trials and not only would that object be defeated but an extraordinary result will ensue if the various clauses of s. 239 are read disjunctively. The reasons given by the Allahabad High Court, therefore, do not merit acceptance. The decision in Singarachariar's Case (1), has really no bearing upon the point before us. What was held there was that ss. 235 (1) and s. 236 are mutually exclusive and if a case is covered by one of them it cannot be covered by the other. In that case the question was whether a person who was first tried for an offence under s. 380, I.P.C. for stealing a blank second class railway ticket from the booking office, tried, for it and acquitted, could not be tried subsequently for the offence of forgery by making entries in that ticket and using it. The acquittal in the previous case was urged as a bar under s. 403(1) of the Code to the trial for an offence under s. 467, I.P.C. The contention apparently was that this was a case which fell under s. 236, Cr. P.C. and that if he had been tried alternatively for both the offences at the same trial the Court could have dealt with him under s. 237, Cr. P.C. The High Court, however, held that to be a kind of case which fell under s. 235(1) of the Code and that since that was so, the provisions of s. 236 were excluded. It is difficult to appreciate how this case assists the conclusion arrived at by the High Court. In D.K. Chandra's Case (2) it was held that the provisions of ss. 234, 235 and 236 being exceptions to s. 233 must be strictly construed and that if joinder of charges did not fall under any of them it would be illegal and contrary to law. The precise point which we have to consider here did not fall for consideration in that case i.e., whether the provisions of the various clauses of s. 239 could be used together or not. This decision is, therefore, of little assistance. On the other band there is the decision of this Court in The State of Andhra Pradesh v. Kandinmlla Subbaiah (3), which is to the effect that where several persons had committed offences in the course of the same transactions, they could jointly be tried in respect of all those offences under s. 239 of the Code of Criminal (1) A.I.R. 1934 Mad 673. C. (2) A. I.R. 1952 Bom. 177, F. B. (3) [1962] 2 S. R. 194. Procedure and the limitation placed by s. 234 of the Code could not come into operation. There, nine persons were jointly tried for 'an offence under s. 5 (1) (c) and (d) of the Prevention of Corruption Act, 1947, and s. 109, I. P. C. read with s' 420, s. 466 and s. 467, I. P. C. and all except one for offences under ss. 420, 467/471, I.P.C. Some of them were also charged with separate offences under some of these provisions. Two of the accused persons preferred a revision application before the High Court of Andhra Pradesh in which they challenged the charges framed against them. The High Court allowed the revision application. But on appeal by the State of Andhra Pradesh to this Court, this Court held that there was no misjoinder of charges, that the introduction of a large number of charges, spread over a long period was a question of propriety and that it should be left to the judge or the Magistrate trying the case to adopt the course which he thought to be appropriate in the facts and circumstances of the case. In so far as some of the charges were concerned this Court pointed out that the Special judge who was to try the case should consider splitting them up so that the accused persons would not be prejudiced in answering the charges and defending themselves. It is true that the question of reading the various clauses cumulatively did not specifically arise for decision in that case but the High Court had held that the first charge was an omnibus charge containing as many as 203 offences and that it was in direct violation of ss. 234, 235 and 239 of the Code of Criminal Procedure. Dealing with this matter this Court held at p. 200 : \"No doubt, sub-s. (1) of s. 234 provides that not more than three offences of the same kind committed by an accused person within the space of 12 months can be tried at the same trial. But then s. 235 (1) provides that if in any one series of acts so connected together as to form the same transaction more offences than one are committed by the same person, he may be charged with and tried at one trial for every such offence. Therefore, where the alleged offences have been committed in the course of the same transaction the limitation placed by s. 234 (1) cannot operate. No doubt, the offence mentioned in charge No. I is alleged to have been committed not by just one person but by all the accused and the question is whether all these persons can be jointly tried in respect of all these offences. To this kind of charges. 239 would apply. This section provides that the following persons may be charged and tried together, namely : (1) persons accused of the same offence committed in the course of the same transaction; (2) persons accused of abetment or an attempt to commit such an offence; (3) persons accused of different offences committed in the course of the same transaction. Clearly, therefore, all the accused persons could be tried together in respect of all the offences now comprised in charge No. 1. This Court has thus clearly read the provisions of the various clauses cumulatively and we see no reason to read them differently. There remains the decision of this Court in K.V. Krishna Murthy Iyer v. The State of Madras (IN on which Mr. Bhimasankaram strongly relied. In that case this Court upheld the order of the High Court of Madras in quashing the charges in the exercise (1) A. I. R. 1954 s, a. 406. of its inherent powers even before the conclusion of the trial. It is true that there the charges were 67 in number and spread over a long period, of time. That again was a matter which came before the High Court before conviction and not after the trial was over. When an objection is taken at an early stage, there is time enough to rectify an error. But in the case before us no objection was taken to multiplicity or misjoinder of charges before the learned Additional Sessions judge and it was only in the High Court that the point was raised, In such circumstances what the Court has to consider is whether prejudice has in fact been caused to the accused by reason of the multiplicity of charges or misjoinder, if any, of the charges. This is quite clear from the provisions of s. 537 of the Code as amended by Act 26 of 1955. In Willie (William) Slaney v. The State of Madhya Pradesh (1), all the learned judges were in agreement on the point that this section and s. 535 cover every case in which there is departure from the rules set out in Ch. XIX ranging from error, omissions and irregularities in charges that are framed, down to charges that might have been framed and were not and include a total omission to frame a charge at all at any stage of the trial. The whole question has again been examined by this Court recently in Birichh Bhuian v. The State of Bihar (2). Subba Rao J., who delivered the judgment of the Court has stated the position thus \"To summarise: a charge is a precise formula- tion of a specific accusation made against a person of an offence alleged to have been com- mitted by him. Sections 234 to 239 permit the joinder of such charges under specified condi- tions for the purpose of a single trial. Such a joinder may be of charges in respect of different offences committed by a single person or several persons. If the joinder of charges was contrary to the provisions of the Code it would (1) [1955] 2 S. Co R. 1140, (2) [1963] Supp. 2S.C.R. 328 be a misjoinder of charges. Section 537 prohibits the revisional or the appellate court from setting aside a finding, sentence or order passed by a court of competent jurisdiction on the ground of such a misjoinder unless it has occasioned a failure of justice.\" Even if we were to assume that there has been a misjoinder of charges in violation of the provisions of ss. 233 to 239 of the Code, the High Court was incompetent to set aside the conviction of the respondents without coming to the definite conclusion that misjoinder had occasioned failure of justice. This decision completely meets the argument based upon Dawson's Case (1). Merely because the accused persons are charged with a large number of offences and convicted at the trial the conviction cannot be set aside by the appellate court unless it in fact came to the conclusion that the accused persons were embarrassed in their defence with the result that there was a failure of injustice. For all these reasons we cannot accept the argument of learned counsel on the ground of misjoinder of charges and multiplicity of charges. Mr. Bhimasankaram, supporting the view taken by the High Court then contends that it is not permissible to frame a charge of conspiracy when the matter has proceeded beyond the stage of conspiracy and that in pursuance of it offences have actually been committed. A similar view was expressed by the same High Court in the case which was reversed by this Court in The State of Andhra Pradesh V. Kandinalla Subbaiah (2), and it was held that conspiracy to commit an offence being itself an offence a person can be separately charged with respect to such a conspiracy. Then this Court has observed: \" Where a number of offences are committed by several persons in pursuance of a conspiracy it is usual to charge them with those (1) (1960)1 All, E. R. 558 (2) [1962] 2 S.C.R. 194, offences as well as with the offence of conspiracy to commit those offences. As an instance of this we may refer to the case in S. Swamirathnam v. State of Madras (1). Though the point was not argued before this Court in the way it appears to have been argued.................. before the High Court of Andhra Pradesh, this Court did not see any- thing wrong in the trial of several persons accused of offences under s. 120-B and s.420. I.P.C. We cannot, therefore, accept the view taken by the High Court of Andhra Pradesh that the charge of conspiracy was bad. If the alleged offences are said to have flown out of the conspiracy the appropriate form of charge would be a specific charge in respect of each of those offences along with the charge of conspiracy.\" (pp. 201-202). This decision is sufficient to dispose of the point under consideration. In Swamirathnam's case (1), which is a decision of this Court certain persons were tried for the offence of the conspiracy to cheat the members of the public and for specific offences of cheating in pursuance of that conspiracy. It was urged before this Court that there was misjoinder of charges and persons Negativing the contention this Court held that the charge as framed disclosed a single conspiracy although spread over several years, that there was one object of the conspiracy and that was to cheat the members of the public, that the fact that in the course of years other joined the conspiracy or that several incidents of cheating took place in pursuance of the conspiracy did not have the effect of splitting the conspiracy into several conspiracies. that the several instances of cheating being alleged to be in pursuance of that conspiracy were parts of the same transaction and, therefore, the joint trial of the accused (1) A. I. R. 1957 S. C. 340, 343, 344. persons for the different offences was not vitiated. No doubt, there is no discussion there as to the question whether the various clauses of s. 239 could be combined or as to the impact of the provisions of S. 233 to 236 on those of s. 239. The actual decision of the case is, however, directly opposed to the contention now put forward before us. This decision has been followed in Natwarlal Sakarlal Mody v. The State of Bombay (1). In that case the impact of s. 120-B, I.P.C. on ss. 233 and 239 of the Code of Criminal Procedure was considered by this Court and this Court observed: \"The combined effect of the three provisions (ss. 235, 236 and 239) is that if there is a criminal conspiracy to commit different offences, the persons who are members of that conspiracy may be charged and tried together but the necessary condition for invoking the provisions of s. 239 (d) is that the offence should have been committed in the course of one transaction i.e., in the present case one and the same conspiracy.\" Here again, the question of clubbing together of the various provisions of cls. (a) to (d) of s. 239 was not raised expressly in the argument before the Court. But the ultimate decision of the case would negative such argument. Mr. Bhimasankaram then relying upon the decision in R. v. Dawson (2), contended that in any event it was not desirable to try the respondents at the same trial for as many as 83 offences and pointed out that these observations had received the approval of this Court in The State of Andhra Pradesh v. Kandimalla Subbaiah (3). In the first place there the trial had not actually begun. Again, what was said by this Court was that it is undesirable to complicate a trial by introducing a large number of charges (1) Crl. A. No. III of 1959 decided on January 19, 1961. (2) (1960) 1 All. E.R. 568, (3) [1962] 2 B.C.R. 194. spread over a long period but even so this was a question of propriety which should be left to the discretion of the judge or Magistrate trying the case. Objection was taken very seriously by Mr. Bhimasankaram to the charge of conspiracy framed in this case. That charge reads thus : \"That both of you along with K.V. Ramana, Ex.- Senior Accountant of the Vizagapatam Electric Supply Corporation Ltd., Visakhapatnam (approver) and others, known or unknown, in or about April 1, 1947, at Visakhapatnam, agreed to do illegal acts, to wit, commit criminal breach of trust in respect of the funds belonging to the Vizagapatam Electric Supply Corporation Ltd., Vizagapatnam; and to screen yourselves from detection of the same, to wilfully, and with intent to defraud, falsify the accounts of the said Vizagapatam Electric Supply Corporation Ltd., Visakhapatnam and that pursuant to the said agreement, you committed criminal breach of trust in respect of funds of the said Vizagapatam Electric Supply Corporation Ltd., Visakhapatnam to the extent of over Rs 3,20,000 and falsified the said accounts between April, 1947 and March, 1952, and also used forged documents as genuine], offences punishable-under Sections 409, Indian Penal Code and 477-A, Indian Penal Code and 471 read with section 467, Indian Penal Code ; and thereby committed an offence of criminal conspiracy punishable under Section 120-B of the Indian Penal Code and within my cognizance.\" Adverting to the portion which we have bracketed, his first objection was that the charge comprises within it not merely the conspiracy but also what was in fact done in pursuance of the conspiracy. His next objection was that it brought within its purview all the various offences which were alleged to have been committed by the respondents. The third objection was that no charge of conspiracy could have been framed after the conspiracy had borne its fruits. The last objection was that the charge of conspiracy was added to the charge sheet very late. We shall first deal with the third point. The offence of conspiracy is an entirely independent offence and though other offences are committed in pursuance of the conspiracy the liability of the conspirators for the conspiracy itself cannot disappear. In the Indian Penal Code, as originally enacted, conspiracy was not an offence. Section 120 -B which makes criminal conspiracy punishable was added by the Indian Criminal Law Amendment Act, 1913 (8 of 1913) along with s. 120-A. Section 120-A defines conspiracy and s. 120- B provides for the punishment for the offence of conspiracy. Criminal conspiracy as defined in s. 120-A and consists of an agreement to do an illegal act or an agreement to do an act which is not illegal by illegal means. Section 120 B provides that whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards shall be punishable in the same manner as if he has abetted such offence unless there was an express provision in the Code for the punishment of such conspiracy. Criminal conspiracy was, however, not an unknown thing before the amendment of the Indian Penal Code in 1913. But what the amendment did was to make that conspiracy itself punishable. The idea was to prevent the commission of crimes by, so to ,speak, nipping them in the bud. But it does not follow that where crimes have been committed the liability to punishment already incurred under s. 120-B by having entered into a criminal conspiracy is thereby wiped away. No doubt, as already stated, where offences for committing which a conspiracy was entered into have actually been committed it may not, in the particular circumstances of a case, be desirable to charge the offender both with the conspiracy and the offences committed in pursuance of that conspiracy. But that would be a matter ultimately within the discretion of the court before which the trial takes place. In so far as the fourth point is concerned, that would have a bearing not on the form of the charge but on the credibility of the evidence bearing on the point of conspiracy. As we are remanding the appeal to the High Court for a fresh decision after full consideration of the evidence adduced in the case it would be open to it to consider this matter particularly while judging the credibility of the-evidence of the approver. In so far as the portion included in the bracket is concerned we agree with the learned counsel that it should not have found place there. The ideas, however, of the committing magistrate in stating all that is said there appears to have been merely to describe the conspiracy and do nothing more. We do not think that either that or the other objection raised, that is, that the charge embraces within it all the offences said to have been committed by the respondents can properly. be said to vitiate the charge. The object in saying what has been set out in the first charge was only to give notice to the respondents as to the ambit of the conspiracy to which they will have to answer and nothing more. Even assuming for a moment that this charge is cumbersome in the absence of any objection by the respondents at the proper time and in the absence of any material from which we could infer prejudice, they are precluded by the provisions of s. 225 from complaining about it at any rate after their conviction by the trial court. Coming to the next point of Mr.. Bhimsankaram regarding the abuse of powers under s. 342 his first contention was that long and involved questions were put to the respondents. His second contention was that reference was made to a number of documents in some of these questions and those documents were not made available to the respondents for answering those questions. The third contention was that the questions were involved, confusing and bordered on cross-examination. Finally he said that the court did not perform its duty under s. 342 (4) of the Code as amended as it failed to bring to the notice of the respondents that they may, if they chose, give evidence in their defence. In support of his first contention he referred to questions Nos. 4, 8, 9, 10 and 20 put to the respondent No. I and question No. 12 put to the respondent No. 2 and tried to show that those questions rolled up a large number of separate questions and that it could not have been possible for the respondents to give any rational answers to those questions. We have read the questions and so also the answers. While we are disposed to agree with learned counsel that the questions embrace a number of matters and that it would have been better if those matters had been made the subjects of separate questions, the answers given by the respondents clearly show that they understood the questions and wherever possible they have given complete answers to those questions. That is to say, they have given their explantion regarding the circumstances appearing in the evidence set out in the questions and wherever that was not feasible they have said that they would do so in their written statements. In fact written statements have been filed by each of them in which every point left over has been fully answered. We are informed that the questions had been prepared before hand by the learned Additional Sessions judge, copies thereof were made available to each of the respondents and it was with reference to those copies that they gave their answers in the court. A pointed reference was made to question No. 20 put to respondent No. I which contains as many as 22 sub-heads and it is said that it was an extremely unfair and embarrassing question. What the learned Additional Sessions judge has done is to err on the side of over-cautiousness by putting every circumstance appearing in the evidence to the respondents for eliciting their explanations. His object was to obviate the possibility of a complaint before the appellate court that they were denied the opportunity of explaining the circumstances appearing in evidence against them because of defective questions. Nor again, do we think that there is any substance in the complaint made that the respondents had no opportunity of referring to the documents to which reference has been made in certain questions. No objection was taken on their behalf before the learned Additional Sessions judge and from the manner in which they have answered the questions there is no doubt that they must have had opportunity to look at the relevant documents and answer the questions. We are also satisfied that there is no substance in the complaint that the questioning bordered on cross-examination. Undoubtedly the learned Additional Sessions judge has questioned the respondents very fully and elaborately but to say that this bordered on cross- examination is wholly unjustifiable. The object of the learned Additional Sessions Judge quite clearly was, as already stated, to leave no loophole for a complaint to be made before the appellate court of incomplete or insufficient examination under s. 342. Finally we are clear that it was not the duty of the court to draw the pointed attention of the respondents to the provisions of sub-s. (4) of s. 342 and tell them that they may, if they chose, enter the witness box. It is true that by introducing this provision the disability placed on an accused person in respect of giving evidence on oath in his own defence has been removed and to that extent such person is placed on par with an accused person under the English law. The new provision, however, does no more than lift the ban and does not impose a duty on the court to draw the attention of an accused person to its contents. Apart from that, the respondents were represented by counsel at the trial who knew very well what the law was. No complaint was made by the respondents even in appeal that they were ignorant of their right, that had they known about it they would have given evidence on oath in their defence and that because of this they have been prejudiced. In the circumstances this point must also be rejected as being without substance. The irrelevant evidence to which Mr. Bhimasankaram referred was certain account books. The entries in the. account books of VESCO show that certain sums of money were paid to various parties, Crompton Engineering Co., Lumin Electric Co., D. Brothers, Radio and Electrical, Madras, Vizagapatam Municipality, P. V. Ramanayya Bros., and Andhra Power System. They also show payment case was that the payments which were entered in the account of VESCO do not find a place in the account books of the corresponding firms or authorities because they were never made by VESCO. The High Court has pointed out that the main evidence on which the prosecution rests its case that the amount represented by the entries against these various firms were in. fact misappropriated by the, respondents in the circumstance that there are no corresponding entries in the account books of those firms. The argument before the High Court was and before us is that, the absence of an entry cannot of electricity duty to Government. The prosecution be established by reference to s. 34 of the Indian Evidence Act which reads thus: \"Entries in books of account, regularly kept in the course of business, are relevant whenever they refer to a matter into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability.\" This section appears in a group of sections headed \"Statements made under special circumstances\". What it does is to make entries in books of account regularly kept in the course of business relevant in all proceedings in a court of law. These entries are, however, not by themselves sufficient to charge any person with liability. Therefore, when A sues B for a sum of money it is open to him to put his account books' in evidence provided they are regularly kept in the course of business and show by reference to them that the amount claimed by him is debited against B. The entry though made by A in his own account books, and though it is in his own favour is a piece of evidence which the court may take into consideration for the purpose of determining whether the amount referred to therein was in fact paid by A to B. The entry by itself is of no help to A in his claim against B but it can be considered by the court along with the evidence of A for drawing the conclusion that the amount was paid by A to B. To this limited extent entries -in the account books are relevant and can be proved. Section 34 does not go beyond that. It says nothing about non-existence of entries in account books. We, therefore, agree with the High Court that the account books of the various concerns to whom payments are said to have been made by the respondents are not by themselves evidence of the fact that no payments were received by them. The decision in Queen Empress v. Grees Chunder Banerjee (1), upon which reliance (1) (1884) I. L. R. 10 Cal. 1024. is placed by the High Court in support of its view is also to that effect. Similarly in Ram prashad Singh v. Lakhpati Koer (1). Lord Robertson during the course of the hearing has observed that no inference can be drawn from the absence of any entry relating to any particular matter which observation supports the view taken in Queen Empress v. Girish Chander Banerjee (2). That, however, is not the only provision to be considered. There is s. II of the Evidence Act which provides that facts not otherwise relevant are relevant if they are inconsistent with any fact in issue or relevant fact. Some of the facts in issue in this case are whether payments of certain sums of money were made to Crompton Engineering Co., and other firms or authorities. These are relevant facts. Absence of entries in their account books would be inconsistent with the receipt of the accounts and would thus be a relevant fact which can be proved under s. 11. The fact that no payments were received by those firms has been deposed to by persons connected with those firms and whose duty it was to receive and acknowledge amounts received by the firms or who were in charge of the accounts of these firms. For the purpose of showing that no amounts were received by the firms, their account books would thus be as relevant as the VESCO account books for the purpose of showing the contrary. Similarly there is s. 5 of the Evidence Act which reads thus: \"Evidence may be given in any suit or procee- ding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.\" It is the case of the prosecution that the alleged payments were never made by VESCO to the various firms. It is also their case that these firms maintain their accounts in the regular course of business and it is their practice to enter in those accounts all payments received by them. Both the sets of facts are (1) (1902) I. L. R. 30 Cal. 231, 247. (2) (1884) I.L.R. 10 C.L 1024. relevant, that is, non-receipt of the amounts by the firms and non-existence of entries in their account books pertaining to those amounts. It is permissible, therefore, for the prosecution to lead evidence to ,Drove both these facts. The best evidence to prove the latter set of facts consists of the account books of the firms themselves. It is under these provisions that the account books of the firms must be held to be relevant. What value to attach to them is another matter and would be for the Court of fact to consider. It may further - be mentioned that the account books of VESCO show certain payments made to Billimoria & Co. of Kharagpur. Papers seized by the police include receipts purporting to have been signed by one J. J. Billimoria on behalf of the firm. The prosecution case is that these receipts are forged documents and the entries in the account books of VESCO are false. One of the partners of the firm was examined by the prosecution as a witness in the case and he produced the account books of the firm. Those account books are in Gujrati and he stated in his evidence that the accounts were regularly kept and that there were no entries in them corresponding to the entries in the VESCO accounts. The High Court held that since the account books were not translated they are not admissible in evidence. The High Court was clearly wrong in so holding. In coming to this conclusion it has relied upon the provisions of s. 356 (2A) of the Code of Criminal Procedure. That section reads thus: \"When the evidence of such witness is given in any other language, not being English, than the language of the Court, the Magistrate or Sessions judge may take it down in that language with his own hand, or cause it to be taken down in that language in his presence and hearing and under his personal direction and superintendence, and an authenticated translation of such evidence in the language of the Court or in English shall form part of the record.\" This provision relates only to the oral evidence adduced in a case and not to documentary evidence. Mr. Bhimasankaram, therefore, very rightly did not support the view of the High Court. In the circumstances we wish to say nothing further on the point. We may, however, point out that Billimoria himself gave his evidence in English. Another point urged by Mr. Bhimasankaram was that as many as 2,000 documents were \"dumped\" by the prosecution in this case out of which 1600 documents were not sought to be proved by it. Further, 64 documents were missing from the records when they came to the High Court and that this has caused serious prejudice to the respondent. No objection, however, was taken in the courts below on this score and in the absence of any prejudice to the respondents we do not think that we should take notice of the complaint made by Mr. Bhimasankaram. The third point stressed by him was that the approver was allowed to refresh his memory, while deposing in the case, by referring extensively to the account books and various documents produced in the case. This, according to him, was an absue of the provisions of s. 159 of the Evidence Act. Now, s. 159 expressly enables a witness while under examination to refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is being questioned or soon afterwards, or to a writing made -similarly by another person and read by the witness immediately or soon after the writing was made. Section 160 provides that a witness may also testify to the facts mentioned in any such document as is mentioned in s. 159. The complaint of Mr. Bhimasankaram is that the approver should have been questioned about the various facts which were sought to be established through his evidence and it was only if and when he was in a difficulty that he should have been allowed to refer to the account books. Instead of doing that what he was permitted to do was just to prove the various documents or read those documents and then depose with reference to them. In our opinion, where a witness has to depose to a large number of transactions , and those transactions referred to are or mentioned either in the account books or in other documents there is nothing wrong in allowing the witness to refer to the account books and the documents while answering the questions put to him in his examination. He cannot be expected to remember every transaction in all its details and s. 160 specifically permits a witness to testify the facts mentioned in the documents referred to in s. 159 although he has no recollection of the facts themselves if he is sure that the facts were correctly recorded in the document. That is precisely what happened in this case and we do not think that the Additional Sessions judge adopted a procedure which was either a violation of law or was an abuse of the power of the Court. The next point is a formidable one. According to Mr. Bhimasankaram, the pardon tendered to the approver was illegal and if the pardon is illegal his evidence is wholly inadmissible. Further, according to him, the evidence of the approver was found by the Additional Sessions judge to be unreliable and therefore, the first condition referred to in Sarwan Singh v. The State of Punjab (1), was not satisfied. For all these reasons the evidence of the approver must be left out of account. If it is left out of account, he contends, there is nothing left in the prose- cution case, because, as pointed out by the Additional Sessions judge himself the evidence of the approver is the pivot of the prosecution case. (1) [1957] S.C. R. 953. The pardon is stated to be illegal for two reasons. The first reason is that none of the offences alleged to have been committed falls within s. 337 of the Code of Criminal Procedure and the second reason is that the pardon was granted by an authority not empowered to grant it. Section 337 (1) as it stood before its amendment by Act 26 of 1955 read thus \"In the case of any offence triable exclusively by the High Court or Court of Session, or any offence punishable with imprisonment which may extend to ten years, or any offence punishable under section 211 of the Indian Penal Code with imprisonment which may extend to seven years, or any offence under any of the following sections of the -Indian Penal Code namely, sections 161, 165, 165A, 216A, 369, 401, 431, 435 and 477-A, the District Magistrate, a Presidency Magistrate, a sub-divisional Magistrate or any Magistrate of the first class may, at any stage of the investigation or inquiry into, or the trial of the offence, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to the offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowlege relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof : Provided that, where the offence is under inquiry or trial, no Magistrate of the first class other than the District Magistrate shall exercise the power hereby conferred unless he is the Magistrate making the inquiry or holding the trial, and, where the offence is under investigation, no such Magistrate shall exercise the said power unless he is a Magistrate having jurisdiction in a place where the offence might be inquired into or tried and the sanction of the District Magistrate has been obtained to the exercise thereof.\" His contention is that where none of the offences is exclusively triable by the High Court or the Court of Sessions pardon could be granted only if the offences are punishable with imprisonment which could extend to ten years but not if a higher punishment were provided for them. Here, one of the offences alleged against the respondents is criminal breach of trust punishable under s. 409, I.P.C. It is not exclusively triable by a Court of Sessions and the punishment as set out in the 7th column of Schedule II, Cr. P. C. was transportation for life or imprisonment of either description for ten years and fine. He contends that since the offence is punishable with transportation for life, s. 337 (1) could not be availed of for granting pardon to the approver. It seems to us that it would not be correct to read s. 337 (1) in the way sought by learned counsel. The very object of this provision is to allow pardon to be tendered in cases where a grave offence is alleged to have been committed by several persons so that with the aid of the evidence of the person pardoned the offence could be brought home to the rest. The gravity is of course to be determined with reference to the sentence awardable with respect to that offence. On the strength of these considerations Mr. Chari for the State contends that if the words \"any offence punishable with imprisonment which may extend to 10 years\" were interpreted to mean offences which were punishable with imprinsonment of less than 10 years grave offences which are not exclusively triable by a court of Sessions will be completely out of s. 337 (1). He suggests that this provision can also be reasonably interpreted to mean that where the offences are punishable with imprisonment exceeding 10 years pardon may be granted to the approver. No doubt, if this interpretation is accepted the object of the section, that is, to embrace within it the graver offences, would be fulfilled, but we wish to express no opinion on it. For, the pardon granted in -this case can be regarded as being within the ambit of s. 337 (1) for another reason. It will be noticed that transportation for life was not the only punishment provided for an offence under s. 409 of the Indian Penal Code even before the amendment made to the Indian Penal Code by s. 117 of the Act 26 of 1955, the other alternative being imprisonment up to 10 years. Therefore, since the offence under s. 409 was not merely punishable with transportation for life but alternately also punishable with imprisonment which could extend to 10 years, s. 337 (1) would apply. This section does not expressly say that the only punishment provided for the offence should be imprisonment not exceeding 10 years. The reason why two alternative maximum sentences are given in col. 7, that is, transportation for life (now imprisonment for life) and imprisonment not exceeding 10 years appears to be that the offence is not exclusively triable by a court of session and could also be tried by a Magistrate, who, except when empowered under s. 30 would be incompetent to try offences punishable with transportation for life (now imprisonment for life) and the further reason that it should be open to the court of Session, instead of awarding the sentence of transportation for life to a convicted person to award him imprisonment in a jail in India itself for a period not execeeding 10 years. Now, of course, by the amendment made by s. 117 of Act 26 of 1955 for the words \"transportation for life\" the words \"imprisonment for life\" have been substituted, but the original structure of all the sections now amended continues. That is why they read rather queer but even so they serve the purpose of allowing certain offences triable by a court of Session, to be triable also by Magistrates of the First Class. Be that as it may, there is no substance in the first ground. What we have said about pardon in respect of an offence under s. 409 would apply equally to that for one under s. 120-B because the punishment for it is the same as that for the offence under s. 409. The offence under s. 467 read with s. 471 is punishable with imprisonment for life or imprisonment of either description for a period of 10 years but it is exclusively triable by a court of Session and, therefore, in so far as such offence is concerned the argument of Mr. Bhimasankaram would not even have been available. As regards the offence under s. 477-A, it is one of those sections which are specifically enumerated in s. 337 (1) and the argument advanced before us-and which we have rejected would not even be available with regard to the pardon in respect of that offence. It is true that the respondent No. I alone was convicted by the Additional Sessions judge of this offence and the offence under s. 467 read with s. 471 but the validity of a pardon is to be determined with reference to the offence alleged against the approver alone and not with reference to the offence or offences for which his associates were ultimately convicted. Coming to the next ground of attack on the validity of pardon, the argument of Mr. Bhimasankaram is that whereas s. 337 (1) speaks of pardon being granted by a District Magistrate, or Presidency Magistrate, a Sub-Divisional Magistrate or any Magistrate of First Class, except in cases where an enquiry or trial was pending before another Magis- tratc, the pardon here was granted by the Additional District Magistrate in a case where an enquiry was pending before the District Magistrate and is, therefore, illegal and of no avail. He contends that s. 337 (1) speaks of the District Magistrate which expression does not include an Additional District Magistrate. Mr. Bhimasankaram's argument on the point may be summarised thus : Such a power cannot be conferred upon an Additional District Magistrate because s. 337 (1) does not contemplate grant of pardon by an Additional District Magistrate and that the Additional District Magistrate would have no status other than that of a Magistrate, First Class. No doubt, under entry (9-a) in Part III of Sch. III to the Code a Magistrate, First Class, has the power to grant pardon under s. 337 but it is limited by the proviso thereto to certain classes of cases. A case under enquiry or trial before another magistrate does not fall in any of these classes. Therefore, a pardon granted by him in such a case would be illegal. The Magistrate before whom the enquiry or trial is proceeding or the District Magistrate would be the only authorities competent to grant a pardon in such a case. Alternatively, the State Government has not made any directions under sub-s. (2) of s. 10 specifying the powers of the District Magistrate which would lie exercisable by the Additional District Magistrate concerned. In order to appreciate and consider the argument it is desirable to bear in mind the changes in the magisterial set up in the former province of Madras which comprised within it the district of Visakhapatnam. By Government Order No. 3106 dated September 9, 1949 the Government of the Province of Madras issued certain instructions to the Magistrates in pursuance of the separation of the judiciary from the executive. It divided the magistrates into two groups, Judicial magistrates and executive magistrates. The latter category comprises of the executive officers of the Revenue Department, on whom the responsibility for the maintenance of law and order was to continue to rest., Para 4 of the instructions provides \".................. To enable them to discharge this respon- sibility, these officers will continue to be magistrates. The Collector, by virtue of office, will retain some of the powers of a District Magistrate and will be called the 'Additional District Magistrate. To distinguish him from his Personal Assistant, he may be called 'Additional District Magistrate (Independent)'. He will continue to be the Head of the Police. Similarly, the Revenue Divisional Officers will be exofficio First Class Magistrates, and the Tahsildars and the Deputy Tahsildars will be ex-officio Second Class Magistrates. The extent of their magisterial powers will be as indicated in the Schedule of allocation of powers. They will exercise these powers within their respective revenue jurisdictions.\" Para 5 provides that as officers of the Revenue Department, those magistrates would be under the control of the Government through the Board of Revenue. The Additional District Magistrates (Independent) would also be under the control of the Government through the Board of Revenue. The category of judicial Magistrates was constituted of the following: (1) District Magistrate; (2) Sub-divisional Magistrates; (3) Additional First Class Magistrates and (4) Second Class Magistrates (Sub- magistrates). The District Magistrate was constituted as the principal magistrate of the District and as such was entrusted with the duty of general administration and superintendence and control over the other judicial magis- trates in the district. In addition to his general supervisory functions and the special powers under the Code of hearing revision petitions, transfer petitions, appeals from Second Class Magistrates and the like, the District Magistrate was also to be assigned a specific area, the cases arising from which would be disposed of normally by himself. This body of magistrates was made subordinate to the High Court. Till the separation between the judiciary and the executive was effected the Collector as the head of the Revenue Department was also the District Magistrate. Consequent on the separation he became only an Additional District Magistrate. Part IV of the Government order deals with the allocation of powers between the judicial and executive magistrates. Para 19(3) occurring in this part deals with allocation of powers under the provisions of the Code otherwise than these referred to in the earlier paragraphs. It specifically provides that the power to tender pardon udder s. 337 shall be exercised by executive magistrates except in cases referred to in the proviso to sub-s. (1) of that section, in which case a judicial magistrate may exercise that power. In spite of the Government order all Magistrates who have, under Sch. III to the Code of Criminal procedure the power to grant pardon will continue to have that power and, therefore, a pardon granted by a judicial Magistrate in contravention of the Government order will not be rendered invalid. However, that is not the point which is relevant while considering the argument of Mr. Bhimasankaram. His point is that the proviso to s. 337(1) confers the power on \"the District Magistrate\" to grant pardon in a case pending before another Magistrate and not on \"a District Magistrate\" and, therefore, his power to grant pardon in such cases cannot be conferred under sub-s.(2) of s. 10 on an Additional District Magistrate. According to him, under that section only the powers of \"a District Magistrate\" meaning thereby only the powers under Entry 7 (a) in Part V of Sch. III as distinguished from the power under the proviso to s. 337 (1) can be conferred upon an Additional District Magistrate. Secondly, according to him, no direction has in fact been shown to have been made by the State Government conferring upon an Additional District Magistrate the power of the District Magistrate to grant pardon. In our opinion, there is no subtance in the contention. The power conferred by sub-s. (1) of s. 337 on the different clauses of Magistrates is of the same character. The power to grant pardon in a case pending before another Magistrate is no doubt conferred by the proviso only on the District Magistrate. But Entry 7 (a) in Part V of Sch. III when it refers to the power of a District Magistrate under s. 337 (1) does not exclude the power under the proviso. There is, therefore, no warrant for drawing a distinction between the powers of \"the District Magistrate\" and the powers of \"'a District Magistrate.\" The power of a District Magistrate to grant Pardon has been specifically conferred on Additional District Magistrates as would appear from s. no. 37 of Sch. III of the Government Order, which reads thus : \"SI. Judl. Exec. Concurrent no. magis- magis- jurisdic- trate trate tion 37 337(1) 2nd paragraph (proviso) Remarks Reference to the District Magistrate in the proviso should be construed as reference to the Executive District Magistrate. Reference to the Magistrate making the enquiry or holding the trial etc., should be construed as a reference to the judicial Magistrate.\" No doubt, here the reference is to the Executive District Magistrate. But it is clear from the other part of the Government Order that what is meant by that is the Additional District Magistrate (Independent). This was., and, we are told, is being regarded as a direction of the Government falling under subs. (2) of s. 10 of the Code. Whether the interpretation is correct or not, we feel little doubt that the action of the Additional District Magistrate (Independent) Visakhapatnam in granting a pardon to the approver in this case though it was pending enquiry before the District Magistrate (judicial), was bona fide. A pardon granted bona fide is fully protected by the provisions of s. 529, Cr. P. C. The High Court has not considered any of the provisions to which we have referred but held that as the offence was being equired into by the District Magistrate,the Additional District Magistrate could not usurp the functions of the former and grant a pardon. Had it done so, it would not have come to this conclusion. We are, therefore, unable to accept it. Mr. Chari for the State advanced a further argument before us in case his main argument that the pardon was valid failed and said that the approver, even if we ignore the pardon, was a competent witness. In support of his contention he strongly relied upon the decision in Kandaswamy Gounder In re : the appellant (1), and the cases referred to therein, in particular the decision in Winson v. Queen (2). What has been held in all these cases is that where the trial of a person who was charged with having committed an offence or offences jointly with several persons is separated from the trial of those persons, he would be a competent witness against them though of course there will always be the question as to what weight should be attached to his evidence. Mr. Chari then referred to s. 133 of the Evidence Act and pointed out that this section clearly makes an accomplice evidence admissible in a case and that an approver whose pardon is found to be invalid does not cease to be an accomplice and contends that he is, therefore, as competent a witness as he would have been if he had not been granted pardon at all and not been put on trial. Learned counsel further pointed out that the decisions show (1) I.L.R. 1957 Mad 715, (2) (1866) L.R. I Q.B. that however undesirable it may be to adduce the evidence of a person jointly accused of having committed an offence along with others, his evidence is competent and admissible except when it is given in a case in which he is being actually tried. This legal position does not, according to him, offend the guarantee against testimonial compulsion and he points out that that is the reason why an accused person is not to be administered an oath when the court examines him under s. 342 (1) for enabling him to explain the circumstances appearing in evidence against him. If pardon is tendered to an accused person and eventually it is found that the pardon is illegal such person is pushed back into the rank of an accused person and being no more than an accomplice would be a competent witness. The question raised is an important one and requires a serious consideration. Mr. Chari in support of his contention has cited a large number of cases, Indian as well as English, and certain passages from Halsbury's Laws of England. But in the view we take about the legal validity of the pardon tendered, we do not wish to pronounce one way or the other on this very interesting question. Now, as regards the reliability of the approver. It is no doubt true that an approver has always been regarded as an infamous witness, who, on his own showing has participated in a crime or crimes and later to save his own skin, turned against his former associates and agreed to give evidence against them in the hope that he will be pardoned for the offence committed by him. The High Court seems to think that before reliance could be placed upon the evidence of the approver it must appear that he is a penitent witness. That, in our opinion, is not the correct legal position. The section itself shows that the motivating factor for an approver to turn, what in England is called \"King's evidence\" is the hope of pardon and not any noble sentiment like contrition at the evil in which he has participated. Whether the evidence of the approver should in any given case be accepted or not will have to be determined by applying the usual tests such as the probability of the truth of what he has deposed to the circumstances in which he has come to give evidence whether he has made a full and complete disclosure, whether his evidence is merely self-exculpatory and so on and so forth. The court has, in addition, to ascertain whether his evidence has been corroborated sufficiently in material particulars. What is necessary to consider is whether applying all these tests we should act upon the evidence of the approver should be acted upon. We however, find that certain documents upon which Mr. Chari wants to rely are not included in the paper book. It would take considerable time if we were to adjourn this matter now and give an opportunity to the parties to include those documents on record. The better course would be for us to set aside the acquittal of the respondents and send back the appeal to the High Court ?or being decided on merits. The High Court will of course be bound by the finding which we have given on the questions of law agitated before us. What it must now do is to consider the entire evidence and decide for itself whether it is sufficient to bring home all or any of the offences to the respondents. We may mention that the High Court's observation that the approver's evidence was treated as unreliable by the learned Additional Sessions judge is not correct. Of course, the view taken by the Additional Sessions judge is not binding on the High Court. But it should remove from its mind the misconception that the Additional Sessions judge has not believed him. There is another thing which we would like to make clear. The decision in Sarwan Singh v. The State of Punjab (1), on which reliance has been placed by the High Court has been explained by this Court in the case of (1) [1957] B. C. R. 953. Maj. E. G. Barsay v. The State of Bombay (1). This Court has pointed out in the latter decision that while it must be shown that the approver is a witness of truth, the evidence adduced in a case cannot be considered in compartments and that even for judging the credibility of, the approver the evidence led to corroborate him in material particulars would be relevant for consideration. The High Court should bear this in mind for deciding whether the evidence of the approver should be acted upon or not. Then again it would not be sufficient for the High Court to deal with the evidence in a general way. It would be necessary for it to consider for itself the evidence adduced by the prosecution on the specific charges and then to conclude whether those charges have been established or not. The prosecution would be well, advised if, instead of placing the evidence on each and every one of those large number of charges against the respondents, it chooses to select a few charges under each head other than the head of conspiracy and concentrates on establishing those charges, this would save public time and also serve the purpose of the prosecution. With these observations we set aside the acquittal of the respondents and remit the appeal to the High Court for decision on merits in the light of our observations. Appeal allowed. Case remanded. (1) [1962] 2 S.C. R. 195.",
        "90251163": "1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1340 2019 (Arising out of SLP(Crl.) No.7523 of 2019) P. CHIDAMBARAM ...Appellant VERSUS DIRECTORATE OF ENFORCEMENT \u2026Respondent JUDGMENT R. BANUMATHI, J. Leave granted. 2. This appeal relates to the alleged irregularities in Foreign Investment Promotion Board (FIPB) clearance given to the INX Media for receiving foreign investment to the tune of Rs.305 crores against approved inflow of Rs.4.62 crores. The High Court of Delhi rejected the appellant\u2019s plea for anticipatory bail in the case registered by Central Bureau of Investigation (CBI) being RC No.220/2017-E-0011 under Section 120B IPC read with Signature Not Verified Digitally signed by Section 420 IPC, Section 8 and Section 13(2) read with Section 13(1)(d) of ASHWANI KUMAR Date: 2019.09.05 14:14:59 IST Reason: the Prevention of Corruption Act, 1988. By the impugned order dated 20.08.2019, the High Court also refused to grant anticipatory bail in the case registered by the Enforcement Directorate in ECIR No.07/HIU/2017 punishable under Sections 3 and 4 of the Prevention of Money-Laundering Act, 2002. 3. Grievance of the appellant is that against the impugned order of the High Court, the appellant tried to get the matter listed in the Supreme Court on 21.08.2019; but the appellant could not get an urgent hearing in the Supreme Court seeking stay of the impugned order of the High Court. The appellant was arrested by the CBI on the night of 21.08.2019. Since the appellant was arrested and remanded to custody in CBI case, in view of the judgment of the Constitution Bench in Shri Gurbaksh Singh Sibbia and others v. State of Punjab (1980) 2 SCC 565, the appellant cannot seek anticipatory bail after he is arrested. Accordingly, SLP(Crl.) No.7525 of 2019 preferred by the appellant qua the CBI case was dismissed as infructuous vide order dated 26.08.2019 on the ground that the appellant has already been arrested and remanded to custody. This Court granted liberty to the appellant to work out his remedy in accordance with law. 4. On 15.05.2017, CBI registered FIR in RC No.220/2017-E-0011 under Section 120B IPC read with Section 420 IPC, Section 8 and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 against the accused viz. (i) INX Media through its Director Indrani Mukherjea; (ii) INX News through its Director Sh. Pratim Mukherjea @ Peter Mukherjea and others; (iii) Sh. Karti P. Chidambaram; (iv) Chess Management Services through its Director Sh. Karti P. Chidambaram and others; (v) Advantage Strategic Consulting through its Director Ms. Padma Vishwanathan @ Padma Bhaskararaman and others; (vi) unknown officers/officials of Ministry of Finance, Govt. of India; and (vii) other unknown persons for the alleged irregularities in giving FIPB\u2019s clearance to INX Media to receive overseas funds of Rs.305 crores against approved Foreign Direct Investment (FDI) of Rs.4.62 crores. 5. Case of the prosecution in the predicate offence is that in 2007, INX Media Pvt. Ltd. approached Foreign Investment Promotion Board (FIPB) seeking approval for FDI upto 46.216 per cent of the issued equity capital. While sending the proposal by INX Media to be placed before the FIPB, INX Media had clearly mentioned in it the inflow of FDI to the extent of Rs.4,62,16,000/- taking the proposed issue at its face value. The FIPB in its meeting held on 18.05.2007 recommended the proposal of INX Media subject to the approval of the Finance Minister-the appellant. In the meeting, the Board did not approve the downstream investment by INX Media in INX News. In violation of the conditions of the approval, the recommendation of FIPB:- (i) INX Media deliberately made a downstream investment to the extent of 26% in the capital of INX News Ltd. without specific approval of FIPB which included indirect foreign investment by the same Foreign Investors; (ii) generated more than Rs.305 crores FDI in INX Media which is in clear violation of the approved foreign flow of Rs.4.62 crores by issuing shares to the foreign investors at a premium of more than Rs.800/- per share. 6. Upon receipt of a complaint on the basis of a cheque for an amount of Rs.10,00,000/- made in favour of M/s Advantage Strategic Consulting Private Limited (ASCPL) by INX Media, the investigation wing of the Income Tax Department proceeded to investigate the matter and the relevant information was sought from the FIPB, which in turn, vide its letter dated 26.05.2008 sought clarification from the INX Media which justified its action saying that the downstream investment has been authorised and that the same was made in accordance with the approval of FIPB. It is alleged by the prosecution that in order to get out of the situation without any penal provision, INX Media entered into a criminal conspiracy with Sh. Karti Chidambaram, Promoter Director, Chess Management Services Pvt. Ltd. and the appellant-the then Finance Minister of India. INX Media through the letter dated 26.06.2008 tried to justify their action stating that the downstream investment has been approved and the same was made in accordance with approval. 7. The FIR further alleges that for the services rendered by Sh. Karti Chidambaram to INX Media through Chess Management Services in getting the issues scuttled by influencing the public servants of FIPB unit of the Ministry of Finance, consideration in the form of payments were received against invoices raised on INX Media by ASCPL. It is alleged in the FIR that the very reason for getting the invoices raised in the name of ASCPL for the services rendered by Chess Management Services was with a view to conceal the identity of Sh. Karti Chidambaram inasmuch as on the day when the invoices were raised and payment was received. It is stated that Sh. Karti Chidambaram was the Promoter, Director of Chess Management Services whereas ASCPL was being controlled by him indirectly. It is alleged that the invoices approximately for an amount of Rs.3.50 crores were falsely got raised in favour of INX Media in the name of other companies in which Sh. Karti Chidambaram was having sustainable interest either directly or indirectly. It is alleged that such invoices were falsely got raised for creation of acquisition of media content, consultancy in respect of market research, acquisition of content of various genre of Audio- Video etc. It is alleged that INX Media Group in his record has clearly mentioned the purpose of payment of Rs.10,00,000/- to ASCPL as towards \u201cmanagement consultancy charges towards FIPB notification and clarification\u201d. Alleging that the above acts of omission and commission prima facie disclose commission of offence, CBI has registered FIR in RC No.220/2017-E-0011 on 15.05.2017 under Section 120B read with Section 6 420 IPC, Section 8 and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 against the aforesaid accused. 8. On the basis of the said FIR registered by CBI, the Enforcement Directorate registered a case in ECIR No.07/HIU/2017 against the aforesaid accused persons for allegedly committing the offence punishable under Sections 3 and 4 of the Prevention of Money-Laundering Act, 2002 (PMLA). Ever since the registration of the cases in 2017, there were various proceedings seeking bail and number of other proceedings pending filed by Sh. Karti Chidambaram and other accused. Finally, the Delhi High Court granted bail to Sh. Karti Chidambaram in INX Media case filed by CBI on 23.03.2018. Thereafter, the appellant moved Delhi High Court seeking anticipatory bail both in CBI case and also in money-laundering case filed by Enforcement Directorate. On 25.07.2018, the Delhi High Court granted the appellant interim protection from arrest in both the cases and the same was extended till 20.08.2019 \u2013 the date on which the High Court dismissed the appellant\u2019s petition refusing to grant anticipatory bail. 9. The High Court dismissed the application refusing to grant anticipatory bail to the appellant by holding that \u201cit is a classic case of money-laundering\u201d. The High Court observed that \u201cit is a clear case of money-laundering\u201d. The learned Single Judge dismissed the application for anticipatory bail by holding \u201cthat the alleged irregularities committed by the appellant makes out a prima facie case for refusing pre-arrest bail to the appellant\u201d. The learned Single Judge also held that \u201cconsidering the gravity of the offence and the evasive reply given by the appellant to the questions put to him while he was under the protective cover extended to him by the court are the twin factors which weigh to deny the pre-arrest bail to the appellant\u201d. Being aggrieved, the appellant has preferred this appeal. 10. Lengthy arguments were heard on number of hearings stretched over for long time. Learned Senior counsel appearing for the appellant Mr. Kapil Sibal and Mr. Abhishek Manu Singhvi made meticulous submissions on the concept of life and liberty enshrined in Article 21 of the Constitution of India to urge that the appellant is entitled to the privilege of anticipatory bail. Arguments were also advanced on various aspects \u2013 whether the court can look into the materials produced by the respondent-Enforcement Directorate to seek custody of the appellant when the appellant was not confronted with those documents on the three dates of interrogation of the appellant conducted on 19.12.2018, 01.01.2019 and 21.01.2019. Interlocutory application was filed by the appellant to produce the transcripts of the questions put to the appellant and the answers given by the appellant, recorded by Enforcement Directorate. Countering the above submissions, Mr. Tushar Mehta, learned Solicitor General made the submissions that grant of anticipatory bail is not part of Article 21 of the Constitution of India. Mr. Tushar Mehta urged that having regard to the materials collected by the respondent-Enforcement Directorate and the specific inputs and in view of the provisions of the special enactment- PMLA, custodial interrogation of the appellant is required and the appellant is not entitled to the privilege of anticipatory bail. Contention of Mr. Kapil Sibal, learned Senior counsel:- 11. Mr. Kapil Sibal, learned Senior counsel appearing on behalf of the appellant submitted that the clearance for INX FDI was approved by Foreign Investment Promotion Board (FIPB) consisting of six Secretaries and the appellant as the then Finance Minister granted approval in the normal course of official business. The learned Senior counsel submitted that the crux of the allegation is that the appellant\u2019s son Sh. Karti Chidambaram tried to influence the officials of FIPB for granting ex-post facto approval for downstream investment by INX Media to INX News; whereas neither the Board members of FIPB nor the officials of FIPB have stated anything about the appellant\u2019s son Sh. Karti Chidambaram that he approached and influenced them for ex-post facto approval. The learned Senior counsel contended that the entire case alleges about money paid to ASCPL and Sh. Karti Chidambaram is neither the share-holder nor a Director in the said ASCPL; but the Enforcement Directorate has falsely alleged that Sh. Karti Chidambaram has been controlling the company- ASCPL. It was submitted that the appellant has nothing to do with the said ASCPL to whom money has been paid by INX Media. 12. Taking us through the impugned judgment and the note said to have been submitted by the Enforcement Directorate before the High Court, the learned Senior counsel submitted that the learned Single Judge has \u201ccopied and pasted\u201d paragraphs after paragraphs of the note given by the respondent in the court. It was urged that there was no basis for the allegations contained in the said note to substantiate the alleged transactions/transfer of money as stated in the tabular column given in the impugned order. 13. So far as the sealed cover containing the materials sought to be handed over by the Enforcement Directorate, the learned Senior counsel raised strong objections and submitted that the Enforcement Directorate cannot randomly produce the documents in the court \u201cbehind the back\u201d of the appellant for seeking custody of the appellant. Strong objections were raised for the plea of Enforcement Directorate requesting the court to receive the sealed cover and for looking into the documents/material collected during the investigation allegedly showing the trail of money in the name of companies and the money-laundering. 14. The appellant was interrogated by the respondent on three dates viz. 19.12.2018, 01.01.2019 and 21.01.2019. So far as the observation of the High Court that the appellant was \u201cevasive\u201d during interrogation, the learned Senior counsel submitted that the appellant has well cooperated with the respondent and the respondent cannot allege that the appellant was \u201cnon-cooperative\u201d. On behalf of the appellant, an application has also been filed seeking direction to the respondent to produce the transcripts of the questioning conducted on 19.12.2018, 01.01.2019 and 21.01.2019. The learned Senior counsel submitted that the transcripts will show whether the appellant was \u201cevasive\u201d or not during his questioning as alleged by the respondent. 15. Learned Senior counsel submitted that the provision for anticipatory bail i.e. Section 438 Cr.P.C. has to be interpreted in a fair and reasonable manner and while so, the High Court has mechanically rejected the anticipatory bail. It was further submitted that in case of offences of the nature alleged, everything is borne out by the records and there is no question of the appellant being \u201cevasive\u201d. The learned Senior counsel also submitted that co-accused Sh. Karti Chidambaram and Padma Bhaskararaman were granted bail and the other accused Indrani Mukherjea and Sh. Pratim Mukherjea @ Peter Mukherjea are on statutory bail and the appellant is entitled to bail on parity also. Contention of Mr. Abhishek Manu Singhvi, learned Senior counsel:- 16. Reiterating the submission of Mr. Kapil Sibal, Mr. Abhishek Manu Singhvi, learned Senior counsel submitted that the Enforcement Directorate cannot say that the appellant was \u201cnon-cooperative\u201d and \u201cevasive\u201d. Mr. Singhvi also urged for production of transcripts i.e. questions put to the appellant and the answers which would show whether the appellant has properly responded to the questions or not. Placing reliance upon Additional District Magistrate, Jabalpur v. Shivakant Shukla (1976) 2 SCC 521, the learned Senior counsel submitted that the respondent cannot rely upon the documents without furnishing those documents to the appellant or without questioning the appellant about the materials collected during the investigation. Reiterating the submission of Mr. Sibal, Mr. Singhvi contended that the High Court has denied anticipatory bail to the appellant on the basis of materials produced by the respondent in the cover before the court which were never shown to the appellant nor was the appellant confronted with the same. The learned Senior counsel submitted that the alleged occurrence was of the year 2007-08 and Sections 420 IPC and 120B IPC and Section 13 of the Prevention of Corruption Act were not part of the \u201cscheduled offence\u201d of Prevention of Money-Laundering Act in 2008 and were introduced by a notification dated 01.06.2009 and in view of the protection given under Article 20(1) of the Constitution of India, there can never be a retrospective operation of a criminal/penal statute. Placing reliance upon Rao Shiv Bahadur Singh and another v. State of Vindhya Pradesh AIR 1953 SC 394, it was contended that the appellant has to substantiate the contention that the acts charged as offences were offences \u201cat the time of commission of the offence\u201d. The learned Senior counsel urged that in 2007-2008 when the alleged acts of commission and omission were committed, they were not \u201cscheduled offences\u201d and hence prosecution under Prevention of Money-Laundering Act, 2002 is not maintainable. 17. The learned Senior counsel has taken strong exception to the two factors stated by the High Court in the impugned order for denying pre- arrest bail i.e. (i) gravity of the offence; and (ii) the appellant was \u201cevasive\u201d to deny the anticipatory bail. The learned Senior counsel submitted that the \u201cgravity of the offence\u201d cannot be the perception of the individual or the court and the test for \u201cgravity of the offence\u201d should be the punishment prescribed by the statute for the offence committed. Insofar as the finding of the High Court that \u201cthe appellant was evasive to the questions\u201d, the learned Senior counsel submitted that the investigating agency- Enforcement Directorate cannot expect an accused to give answers in the manner they want and that the accused is entitled to protection under Article 20(3) of the Constitution of India. Reliance was placed upon Santosh s/o Dwarkadas Fafat v. State of Maharashtra (2017) 9 SCC 714. Contention of Mr. Tushar Mehta, learned Solicitor General:- 18. Taking us through the Statement of Objects and Reasons and salient features of the PMLA, the learned Solicitor General submitted that India is a part of the global community having responsibility to crackdown on money- laundering with an effective legislation and PMLA is a result of the joint initiatives taken by several nations. Taking us through the various provisions of the PMLA, the learned Solicitor General submitted that money-laundering poses a serious threat to the financial system and financial integrity of the nation and has to be sternly dealt with. It was submitted that PMLA offence has two dimensions \u2013 predicate offence and money-laundering. Money-laundering is a separate and independent offence punishable under Section 4 read with Section 3 of the PMLA. 19. Learned Solicitor General submitted that under Section 19 of PMLA, specified officers, on the basis of material in possession, having reason to believe which is to be recorded in writing that the person has been guilty of the offence under the Act, have power to arrest. It was urged that the power to arrest and necessary safeguards are enshrined under Section 19 of the Act. It was submitted that since respondent has collected cogent materials to show that it is a case of money-laundering and the Enforcement Directorate has issued Letter rogatory and if the Court intervenes by granting anticipatory bail, the authority cannot exercise the statutory right of arrest and interrogate the appellant. 20. The learned Solicitor General submitted that they have obtained specific inputs from overseas banks and also about the companies and properties and it is a clear case of money-laundering. The learned Solicitor General submitted that the Court has power to look into the materials so collected by the Enforcement Directorate and the same cannot be shared with the appellant at this initial stage when the Court is considering the matter for grant of pre-arrest bail. Relying upon number of judgments, the learned Solicitor General has submitted that as a matter of practice, Courts have always perused the case diaries produced by the prosecution and receive and peruse the materials/documents to satisfy its judicial conscience. In support of his contention, learned Solicitor General placed reliance upon Romila Thapar and Others v. Union of India and Others (2018) 10 SCC 753, Jai Prakash Singh v. State of Bihar and Another (2012) 4 SCC 379 and Directorate of Enforcement and Another v. P.V. Prabhakar Rao (1997) 6 SCC 647 and other judgments and requested the Court to peruse the materials produced by the Enforcement Directorate in the sealed cover. 21. Opposing the grant of anticipatory bail, the learned Solicitor General submitted that the Enforcement Directorate has cogent evidence to prove that it is a case of money-laundering and there is a need of custodial interrogation of the appellant. The learned Solicitor General submitted that the economic offences stand as a class apart and custodial interrogation is required for the Enforcement Directorate to trace the trail of money and prayed for dismissal of the appeal. 22. As noted earlier, the predicate offences are under Sections 120B IPC and 420 IPC, Section 8 and Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act. Case is registered against the appellant and others under Sections 3 and 4 of PMLA. The main point falling for consideration is whether the appellant is entitled to the privilege of anticipatory bail. In order to consider whether the appellant is to be granted the privilege of anticipatory bail, it is necessary to consider the salient features of the special enactment \u2013 Prevention of Money-Laundering Act, 2002. 23. Prevention of Money-laundering Act, 2002 \u2013 Special Enactment:- Money-laundering is the process of concealing illicit sources of money and the launderer transforming the money proceeds derived from criminal activity into funds and moved to other institution or transformed into legitimate asset. It is realised world around that money laundering poses a serious threat not only to the financial systems of the countries but also to their integrity and sovereignty. The Prevention of Money-laundering Act, 2002 was enacted in pursuance of the Political Declaration adopted by the Special Session of the United Nations General Assembly held in June 1998, calling upon the Member States to adopt national money-laundering legislation and programme, primarily with a view to meet out the serious threat posed by money laundering to the financial system of the countries and to their integrity and sovereignty. 24. Statement of Objects and Reasons to the Prevention of Money- laundering Act, 2002 recognises that money laundering poses a serious threat not only to the financial systems of the countries but also to their integrity and sovereignty. PMLA is a special enactment containing the provisions with adequate safeguards with a view to prevent money- laundering. The Preamble to the Prevention of Money-Laundering Act, 2002 states that \u201cAn Act to prevent money-laundering and to provide for confiscation of property derived from, or involved in, money-laundering and for matters connected therewith or incidental thereto.\u201d 25. Chapter II of PMLA contains provisions relating to the offences of money-laundering. Section 2(1)(p) of PMLA defines \u201cmoney-laundering\u201d that it has the same meaning assigned to it in Section 3. Section 2(1)(ra) of PMLA defines \u201coffence of cross border implications\u201d. To prevent offences of \u201ccross border implications\u201d, PMLA contains Sections 55 to 61 dealing with reciprocal arrangement for assistance in certain matters and procedure for attachment and confiscation of property between the contracting States with regard to the offences of money-laundering and predicate offences. Section 2(1)(y) of PMLA defines \u201cscheduled offence\u201d which reads as under:- \u201c2. Definitions \u2013 (1)\u2026\u2026 (y) \u201cscheduled offence\u201d means \u2013 (i) the offences specified under Part A of the Scheduled; or (ii) the offences specified under Part B of the Schedule if the total value involved in such offences is one crore rupees or more; or (iii)the offences specified under Part C of the Schedule.\u201d \u201cScheduled Offence\u201d is a sine qua non for the offence of money-laundering which would generate the money that is being laundered. PMLA contains Schedules which originally contained three parts namely Part A, Part B and Part C. Part A contains various paragraphs which enumerate offences under the Indian Penal Code, Narcotic Drugs and Psychotropic Substances Act, 1985, offences under the Explosives Substances Act, 1908 and the offences under the Prevention of Corruption Act, 1988 (paragraph 8) etc. The Schedule was amended by Act 21 of 2009 (w.e.f. 01.06.2009). Section 13 of Prevention of Corruption Act was inserted in the Part A of the Schedule to PMLA by the Amendment Act, 16 of 2018 (w.e.f. 26.07.2018). 26. Section 3 of PMLA stipulates \u201cmoney-laundering\u201d to be an offence. Section 3 of PMLA states that whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the proceeds of the crime and projecting it as untainted property shall be guilty of the offences of money laundering. The provisions of the PMLA including Section 3 have undergone various amendments. The words in Section 3 \u201cwith the proceeds of crime and projecting\u201d has been amended as \u201cproceeds of crime including its concealment, possession, acquisition or use and projecting or claiming\u201d by the Amendment Act 2 of 2013 (w.e.f. 15.02.2013). 27. Section 4 of PMLA deals with punishment for money laundering. Prior to Amendment Act 2 of 2013, Section 4 provided punishment with rigorous imprisonment for a term which shall not be less than three years but which may extend to seven years and the fine which may extend to Rs.5,00,000/-. By Amendment Act 2 of 2013, Section 4 is amended w.e.f. 15.02.2013 vide S.O. 343(E) dated 08.02.2013. Now, the punishment prescribed under Section 4 of PMLA to the offender is rigorous imprisonment for a term which shall not be less than three years but which may extend to seven years and the offender is also liable to pay fine. The limit of fine has been done away with and now after the amendment, appropriate fine even above Rs.5,00,000/- can be imposed against the offender. 28. Section 5 of PMLA which provides for attachment of property involved in money laundering, states that where the Director or any other officer not below the rank of Deputy Director authorised by the Director for the purposes of this Section, has \u201creason to believe\u201d (the reason for such belief to be recorded in writing), on the basis of material in his possession, that (a) any person is in possession of any proceeds of crime; and (b) such proceeds of crime are likely to be concealed, transferred or dealt with in any manner which may result in frustrating any proceedings relating to confiscation of such proceeds of crime under Chapter III, he may, by order in writing, provisionally attach such property for a period not exceeding one hundred and fifty days from the date of the order, in such manner as may be prescribed. Section 5 provides that no such order of attachment shall be made unless, in relation to the scheduled offence, a report has been forwarded to a Magistrate under Section 173 of the Code of Criminal Procedure, 1973 (2 of 1974), or a complaint has been filed by a person authorised to investigate the offence mentioned in that Schedule, before a Magistrate or court for taking cognizance of the scheduled offence, as the case may be. 29. The term \u201creason to believe\u201d is not defined in PMLA. The expression \u201creason to believe\u201d has been defined in Section 26 of IPC. As per the definition in Section 26 IPC, a person is said to have \u201creason to believe\u201d a thing, if he has sufficient cause to believe that thing but not otherwise. The specified officer must have \u201creason to believe\u201d on the basis of material in his possession that the property sought to be attached is likely to be concealed, transferred or dealt with in a manner which may result in frustrating any proceedings for confiscation of their property under the Act. It is stated that in the present case, exercising power under Section 5 of the PMLA, the Adjudicating Authority had attached some of the properties of the appellant. Challenging the attachment, the appellant and others are said to have preferred appeal before the Appellate Tribunal and stay has been granted by the Appellate Authority and the said appeal is stated to be pending. 30. As rightly submitted by the learned Solicitor General, sufficient safeguards are provided under the provisions of PMLA. Under Section 5 of PMLA, the Director or any other officer not below the rank of Deputy Director authorised by the Director for the purposes of Section 5 who passed the impugned order is required to have \u201creason to believe\u201d that the properties sought to be attached would be transferred or dealt with in a manner which would frustrate the proceedings relating to confiscation of such properties. Further, the officer who passed the order of attachment is required to record the reasons for such belief. The provisions of the PMLA and the Rules also provide for manner of forwarding a copy of the order of provisional attachment of property along with material under sub-section (2) of Section 5 of PMLA to the Adjudicating Authority. 31. In order to ensure the safeguards, in exercise of power under Section 73 of PMLA, the Central Government has framed \u201cThe Prevention of Money-Laundering (The Manner of Forwarding a Copy of the Order of Provisional Attachment of Property along with the Material, and Copy of the Reasons along with the Material in respect of Survey, to the Adjudicating Authority and its period of Retention) Rules, 2005\u201d. Rule 3 of the said Rules provides for manner of forwarding a copy of the order of provisional attachment of property along with the material under sub-section (2) of Section 5 of the Act to the Adjudicating Authority. Rule 3 stipulates various safeguards as to the confidentiality of the sealed envelope sent to the Adjudicating Authority. 32. Section 17 of PMLA deals with the search and seizure. Section 17 which deals with search and seizure states that where the Director or any other officer not below the rank of Deputy Director authorised by him for the purposes of this section on the basis of the information in his possession has \u201creason to believe\u201d (reason for such belief to be recorded in writing) that any person has committed an offence which constitutes the money laundering or is in possession of any proceeds of crime involved in money laundering etc. may search building, place and seize any record or property found as a result of such search. Section 17 of PMLA also uses the expression \u201creason to believe\u201d and \u201creason for such belief to be recorded in writing\u201d. Here again, the authorised officer shall immediately on search and seizure or upon issuance of freezing order forward a copy of the reasons so recorded along with the material in his possession to the Adjudicating Authority in a \u201csealed envelope\u201d in the manner as may be prescribed and such Adjudicating Authority shall keep such reasons and material for such period as may be prescribed. In order to ensure the sanctity of the search and seizure and to ensure the safeguards, in exercise of power under Section 73 of PMLA, the Central Government has framed \u201cThe Prevention of Money-Laundering (Forms, Search and Seizure or Freezing and the Manner of Forwarding the Reasons and Material to the Adjudicating Authority, Impounding and Custody of Records and the period of Retention) Rules, 2005\u201d. 33. Section 19 of PMLA deals with the power of the specified officer to arrest. Under sub-section (1) of Section 19 of PMLA, the specified officer viz. the Director, the Deputy Director, Assistant Director or any other officer authorised in this behalf by the Central Government by general or special order, on the basis of the material in possession, having \u201creason to believe\u201d and \u201creasons for such belief be recorded in writing\u201d that the person has been guilty of offence punishable under the PMLA, has power to arrest such person. The authorised officer is required to inform the accused the grounds for such arrest at the earliest and in terms of sub- section (3) of Section 19 of the Act, the arrested person is required to be produced to the jurisdictional Judicial Magistrate or Metropolitan Magistrate within 24 hours excluding the journey time from the place of arrest to the Magistrate\u2019s Court. In order to ensure the safeguards, in exercise of power under Section 73 of the Act, the Central Government has framed \u201cThe Prevention of Money-Laundering (The Forms and the Manner of Forwarding a Copy of Order of Arrest of a Person along with the Material to the Adjudicating Authority and its Period of Retention) Rules, 2005\u201d. Rule 3 of the said Rules requires the arresting officer to forward a copy of order of arrest and the material to the Adjudicating Authority in a sealed cover marked \u201cconfidential\u201d and Rule 3 provides for the manner in maintaining the confidentiality of the contents. 34. As rightly submitted by Mr. Tushar Mehta, the procedure under PMLA for arrest ensures sufficient safeguards viz.:- (i) only the specified officers are authorised to arrest; (ii) based on \u201creasons to believe\u201d that an offence punishable under the Act has been committed; (iii) the reasons for such belief to be recorded in writing; (iv) evidence and the material submitted to the Adjudicating Authority in sealed envelope in the manner as may be prescribed ensuring the safeguards in maintaining the confidentiality; and (v) every person arrested under PMLA to be produced before the Judicial Magistrate or Metropolitan Magistrate within 24 hours. Section 19 of PMLA provides for the power to arrest to the specified officer on the basis of material in his possession and has \u201creason to believe\u201d and the \u201creasons for such belief to be recorded in writing\u201d that any person has been guilty of an offence punishable under PMLA. The statutory power has been vested upon the specified officers of higher rank to arrest the person whom the officer has \u201creason to believe\u201d that such person has been guilty of an offence punishable under PMLA. In cases of PMLA, in exercising the power to grant anticipatory bail would be to scuttle the statutory power of the specified officers to arrest which is enshrined in the statute with sufficient safeguards. 35. Section 71 of PMLA gives overriding effect to the provisions of PMLA. Section 71 of PMLA states that the provisions of the Act would have overriding effect on the provisions of all other Acts applicable. The provisions of PMLA shall prevail over the contrary provisions of the other Acts. Section 65 of PMLA states that the provisions of Code of Criminal Procedure, 1973 shall apply to the provisions under the Act insofar as they are not inconsistent with the provisions of PMLA. 36. Insofar as the issue of grant of bail is concerned, Section 45 of PMLA starts with non-obstante clause. Section 45 imposes two conditions for grant of bail to any person accused of any offence punishable for a term of imprisonment of more than three years under Part-A of the Schedule of the Act viz., (i) that the prosecutor must be given an opportunity to oppose the application for such bail; (ii) that the court must be satisfied that there are reasonable grounds for believing that the accused persons is not guilty of such offence and that he is not likely to commit any offence while on bail. 37. The twin conditions under Section 45(1) for the offences classified thereunder in Part-A of the Schedule was held arbitrary and discriminatory and invalid in Nikesh Tarachand Shah v. Union of India and another (2018) 11 SCC 1. Insofar as the twin conditions for release of accused on bail under Section 45 of the Act, the Supreme Court held the same to be unconstitutional as it violates Articles 14 and 21 of the Constitution of India. Subsequently, Section 45 has been amended by Amendment Act 13 of 2008. The words \u201cimprisonment for a term of imprisonment of more than three years under Part A of the Schedule\u201d has been substituted with \u201caccused of an offence under this Act\u2026..\u201d. Section 45 prior to Nikesh Tarachand and post Nikesh Tarachand reads as under:- Section 45 - Prior to Nikesh Tarachand Shah Section 45 - Post Nikesh Tarachand Shah Section 45. Offence to be cognizable and non- Section 45. Offences to be cognizable and non-bailable. bailable. (2) Notwithstanding anything contained in the Code of (1) Notwithstanding contained in the Code of Criminal Procedure, 1973 (2 of 1974), no Criminal Procedure, 1973 (2 of 1974), no person accused of an offence under this Act shall person accused of an offence punishable be released on bail or on his own bond unless- for a term of imprisonment of more than (i) the Public Prosecutor has been given an three years under Part A of the Schedule opportunity to oppose the application for such shall be released on bail or on his own release; and (ii) where the Public Prosecutor opposes the bond unless- (i) the Public Prosecutor has been given application, the court is satisfied that there are an opportunity to oppose the application reasonable grounds for believing that he is not for such release; and guilty of such offence and that he is not likely to (ii) where the Public Prosecutor opposes commit any offence while on bail; the application, the court is satisfied that Provided that a person, who, is under the age of sixteen there are reasonable grounds for years, or is a woman or is sick or infirm, or is accused either believing that he is not guilty of such on his own or along with other co-accused of money offence and that he is not likely to laundering a sum of less than one crore rupees may be commit any offence while on bail; released on bail, if the Special court so directs: Provided that a person, who, is under the age of sixteen years, or is a woman or is sick or infirm, may be released on bail, if the Special Court so directs: 38. The occurrence was of the year 2007-2008. CBI registered the case against Sh. Karti Chidambaram, the appellant and others on 15.05.2017 under Sections 120-B IPC read with Section 420 IPC and under Section 8 and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act. Learned Senior counsel for the appellant, Mr. A.M. Singhvi has submitted that there could not have been \u2018reasons to believe\u2019 that the appellant has committed the offence under Section 3 of PMLA, since in 2007-2008 the time of commission of alleged offence, Sections 120-B IPC and 420 IPC and Section 13 of the Prevention of Corruption Act were not there in Part \u2018A\u2019 of the Schedule to PMLA and were included in Part \u2018A\u2019 of the Schedule only by Amendment Act 21 of 2009 w.e.f. 01.06.2009 and w.e.f. 26.07.2018 respectively and therefore, no prima-facie case of commission of offence by the appellant under PMLA is made out. It was urged that under Article 20 of the Constitution, no person shall be convicted of any offence except for violation of law in force at the time of the commission of that act charged as offence. When Section 120B IPC and Section 420 IPC and Section 13 of Prevention of Corruption Act were not then included in Part A of the Schedule, in 2007-2008, then the appellant and others cannot be said to have committed the offence under PMLA. Insofar as Section 8 of the Prevention of Corruption Act is concerned, it was submitted that Section 8 of the Prevention of Corruption Act is not attracted against the appellant as there are no allegations in the FIR that the appellant accepted or agreed to accept any gratification as a motive or reward for inducing any public servant and hence, the accusation under Section 8 of the Prevention of Corruption Act does not apply to the appellant. It was further submitted that even assuming Section 8 of the Prevention of Corruption Act is made out, the amount allegedly paid to ASCPL was only Rs.10,00,000/- whereas, Rs.30,00,000/- was the amount then stipulated to attract Section 8 to be the Scheduled offence under Part A of the Schedule to the Act and therefore, there was no basis for offence against the appellant and in such view of the matter, the appellant is entitled for anticipatory bail. 39. Section 45 of the PMLA makes the offence of money laundering cognizable and non-bailable and no person accused of an offence punishable for a term of imprisonment of more than three years under Part A of the Schedule shall be released on bail unless the twin conditions thereon are satisfied. Section 120-B IPC \u2013 Criminal Conspiracy and Section 420 IPC - Cheating and dishonestly inducing delivery of property were included in Part A of the Schedule to PMLA by way of Amendment Act 21 of 2009 w.e.f. 01.06.2009 and by way of Amendment Act 2 of 2013 w.e.f. 15.02.2013. Likewise, Section 13 of the Prevention of Corruption Act has been introduced to Part A of the Schedule (Paragraph 8) by way of Amendment Act 16 of 2018 w.e.f. 26.07.2018. As pointed out earlier, the FIR was registered by CBI under Section 8 of the Prevention of Corruption Act also which was then in Part A of the Schedule at the time of alleged commission of offence. 40. Learned Senior counsel submitted that since the offence under Sections 120-B IPC and 420 IPC and under Section 13 of Prevention of Corruption Act were included in the Schedule only w.e.f. 01.06.2009 and w.e.f. 26.07.2018 respectively and there can never be a retrospective operation of a criminal/penal statue and the test is not whether the proceeds are retained by the person; but the test as laid down by the Constitution Bench of this Court is, the test of the acts constituting the offence at the time of the commission of the offence and the appellant cannot be proceeded with prosecution under PMLA in violation of constitutional protection under Article 20(1) of the Constitution of India. 41. Under Article 20(1) of the Constitution, no person shall be convicted of any offence except for violation of law in force at the time of commission of that act charged as an offence. FIR for the predicate offence has been registered by CBI under Section 120B IPC, 420 IPC and Section 13 of the Prevention of Corruption Act and also under Section 8 of the Prevention of Corruption Act. As discussed earlier, Section 120B IPC and Section 420 IPC were included in Part A of the Schedule only by Amendment Act 21 of 2009 w.e.f. 01.06.2009. Section 13 of the Prevention of Corruption Act was included in Part A of the Schedule by Amendment Act 16 of 2018 w.e.f. 26.07.2018. Section 8 of the Prevention of Corruption Act is punishable with imprisonment extending upto seven years. Section 8 of the Prevention of Corruption Act was very much available in Part A of the Schedule of PMLA at the time of alleged commission of offence in 2007-2008. It cannot therefore be said that the appellant is proceeded against in violation of Article 20(1) of the Constitution of India for the alleged commission of the acts which was not an offence as per law then in existence. The merits of the contention that Section 8 of the Prevention of Corruption Act cannot be the predicate offence qua the appellant, cannot be gone into at this stage when this Court is only considering the prayer for anticipatory bail. 42. Yet another contention advanced on behalf of the appellant is that minimum threshold for the Enforcement Directorate to acquire jurisdiction at the relevant time was Rs.30 lakhs whereas, in the present case, there is no material to show any payment apart from the sum of Rs.10 lakhs (approximately) allegedly paid by INX Media to ASCPL with which the appellant is said to be having no connection whatsoever. The merits of the contention that Section 8 of the Prevention of Corruption Act (then included in Schedule A of the PMLA in 2007-08) whether attracted or not and whether the Enforcement Directorate had the threshold to acquire jurisdiction under PMLA cannot be considered at this stage while this Court is considering only the prayer for anticipatory bail. 43. In terms of Section 4 of the PMLA, the offence of money-laundering is punishable with rigorous imprisonment for a term not less than three years extending to seven years and with fine. The Second Schedule to the Criminal Procedure Code relates to classification of offences against other laws and in terms of the Second Schedule of the Code, an offence which is punishable with imprisonment for three years and upward but not more than seven years is a cognizable and non-bailable offence. Thus, Section 4 of the Act read with the Second Schedule of the Code makes it clear that the offences under the PMLA are cognizable offences. As pointed out earlier, Section 8 of the Prevention of Corruption Act was then found a mention in Part \u2018A\u2019 of the Schedule (Paragraph 8). Section 8 of the Prevention of Corruption Act is punishable for a term extending to seven years. Thus, the essential requirement of Section 45 of PMLA \u201caccused of an offence punishable for a term of imprisonment of more than three years under Part \u2018A\u2019 of the Schedule\u201d is satisfied making the offence under PMLA. There is no merit in the contention of the appellant that very registration of the FIR against the appellant under PMLA is not maintainable. Whether Court can look into the documents/materials collected during investigation 44. During the course of lengthy hearing, much arguments were advanced mainly on the question whether the court can look into the documents and materials produced by the prosecution before the court without first confronting the accused with those materials. 45. The learned Solicitor General submitted that during investigation, the Enforcement Directorate has collected materials and overseas banks have given specific inputs regarding the companies and properties that money has been parked in the name of shell companies and the said money has been used to make legitimate assets and that custodial interrogation is necessary with regard to the materials so collected. The learned Solicitor General sought to produce the materials so collected in the sealed cover and requested the court to peruse the documents and the materials to satisfy the conscience of the court as to the necessity for the custodial interrogation. 46. Contention of learned Solicitor General requesting the court to peruse the documents produced in the sealed cover was strongly objected by the appellant on the grounds :\u2013 (i) that the Enforcement Directorate cannot randomly place the documents in the court behind the back of the accused to seek custody of the accused; (ii) the materials so collected by Enforcement Directorate during investigation cannot be placed before the court unless the accused has been confronted with such materials. 47. Mr. Kapil Sibal, learned Senior counsel submitted that the statements recorded under Section 161 Cr.P.C. are part of the case diary and the case diary must reflect day to day movement of the investigation based on which the investigating agency came to the conclusion that the crime has been committed so that a final report can be filed before the court. The learned Senior counsel submitted that during the course of such investigation, the investigating officer may discover several documents which may have a bearing on the crime committed; however the documents themselves can never be the part of the case diary and the documents would be a piece of documentary evidence during trial which would be required to be proved in accordance with the provisions of the Evidence Act before such documents can be relied upon for the purpose of supporting the case of prosecution. Enforcement Directorate does not maintain a case diary; but maintain the file with paginated pages. It was urged that even assuming that there is a case diary maintained by the respondent in conformity with Section 172 Cr.P.C., the opinion of the investigating officer for the conclusion reached by the authorised officer under PMLA, can never be relied upon for the purposes of consideration of anticipatory bail. 48. Having regard to the submissions, two points arise for consideration \u2013 (i) whether the court can/cannot look into the documents/materials produced before the court unless the accused was earlier confronted with those documents/materials?; and (ii) whether the court is called upon to hold a mini inquiry during the intermediary stages of investigation by examining whether the questions put to the accused are \u2018satisfactory\u2019 or \u2018evasive\u2019, etc.? 49. Sub-section (2) of Section 172 Cr.P.C. permits any court to send for case diary to use them in the trial. Section 172(3) Cr.P.C. specifically provides that neither the accused nor his agents shall be entitled to call for case diary nor shall he or they be entitled to see them merely because they are referred to by the court. But if they are used by the police officer who made them to refresh his memory or if the court uses them for the purpose of contradicting the such police officer, the provisions of Section 161 Crl.P.C. or the provision of Section 145 of the Evidence Act shall be complied with. In this regard, the learned Solicitor General placed reliance upon Balakram v. State of Uttarakhand and others (2017) 7 SCC 668. Observing that the confidentiality is always kept in the matter of investigation and it is not desirable to make available the police diary to the accused on his demand, in Balakram, the Supreme Court held as under:- \u201c15. The police diary is only a record of day-to-day investigation made by the investigating officer. Neither the accused nor his agent is entitled to call for such case diary and also are not entitled to see them during the course of inquiry or trial. The unfettered power conferred by the statute under Section 172(2) CrPC on the court to examine the entries of the police diary would not allow the accused to claim similar unfettered right to inspect the case diary. \u2026\u2026\u2026. 17. From the aforementioned, it is clear that the denial of right to the accused to inspect the case diary cannot be characterised as unreasonable or arbitrary. The confidentiality is always kept in the matter of investigation and it is not desirable to make available the police diary to the accused on his demand.\u201d 50. Reiterating the same principles in Sidharth and others v. State of Bihar (2005) 12 SCC 545, the Supreme Court held as under:- \u201c27. Lastly, we may point out that in the present case, we have noticed that the entire case diary maintained by the police was made available to the accused. Under Section 172 of the Criminal Procedure Code, every police officer making an investigation has to record his proceedings in a diary setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him and a statement of the circumstances ascertained through his investigation. It is specifically provided in sub-clause (3) of Section 172 that neither the accused nor his agents shall be entitled to call for such diaries nor shall he or they be entitled to see them merely because they are referred to by the court, but if they are used by the police officer who made them to refresh his memory, or if the court uses them for the purpose of contradicting such police officer, the provisions of Section 161 CrPC or the provisions of Section 145 of the Evidence Act shall be complied with. The court is empowered to call for such diaries not to use it as evidence but to use it as aid to find out anything that happened during the investigation of the crime. These provisions have been incorporated in the Code of Criminal Procedure to achieve certain specific objectives. The police officer who is conducting the investigation may come across a series of information which cannot be divulged to the accused. He is bound to record such facts in the case diary. But if the entire case diary is made available to the accused, it may cause serious prejudice to others and even affect the safety and security of those who may have given statements to the police. The confidentiality is always kept in the matter of criminal investigation and it is not desirable to make available the entire case diary to the accused. In the instant case, we have noticed that the entire case diary was given to the accused and the investigating officer was extensively cross-examined on many facts which were not very much relevant for the purpose of the case. The learned Sessions Judge should have been careful in seeing that the trial of the case was conducted in accordance with the provisions of CrPC.\u201d [underlining added] The same position has been reiterated in Naresh Kumar Yadav v. Ravindra Kumar and others (2008) 1 SCC 632 [Paras 11 to 14], Malkiat Singh and others v. State of Punjab (1991) 4 SCC 341 [Para 11] and other judgments. 51. It is seen from various judgments that on several instances, court always received and perused the case diaries/materials collected by the prosecution during investigation to satisfy itself as to whether the investigation is proceeding in the right direction or for consideration of the question of grant of bail etc. In Directorate of Enforcement and another v. P.V. Prabhakar Rao (1997) 6 SCC 647, the Supreme Court perused the records to examine the correctness of the order passed by the High Court granting bail. In R.K. Krishna Kumar v. State of Assam and others (1998) 1 SCC 474, the Supreme Court received court diary maintained under Section 172 Cr.P.C. and perused the case diary to satisfy itself that the investigation has revealed that the company thereon has funded the organisation (ULFA) and that the appellants thereon had a role to play in it. While considering the question of arrest of five well known human rights activists, journalists, advocates and political workers, in Romila Thapar and 36 Others v. Union of India and Others (2018) 10 SCC 753, this Court perused the registers containing relevant documents and the case diary produced by the State of Maharashtra. However, the court avoided to dilate on the factual position emerging therefrom on the ground that any observation made thereon might cause prejudice to the accused or to the prosecution in any manner. Upholding the validity of Section 172(3) Crl.P.C. and observing that \u201cthere can be no better custodian or guardian of the interest of justice than the court trying the case\u201d, in Mukund Lal v. Union of India and another 1989 Supp. (1) SCC 622, the Supreme Court held as under:- 3. \u2026.. \u201cSo far as the other parts are concerned, the accused need not necessarily have a right of access to them because in a criminal trial or enquiry, whatever is sought to be proved against the accused, will have to be proved by the evidence other than the diary itself and the diary can only be used for a very limited purpose by the court or the police officer as stated above. \u2026\u2026\u2026. When in the enquiry or trial, everything which may appear against the accused has to be established and brought before the court by evidence other than the diary and the accused can have the benefit of cross-examining the witnesses and the court has power to call for the diary and use it, of course not as evidence but in aid of the enquiry or trial, I am clearly of the opinion, that the provisions under Section 172(3) CrPC cannot be said to be unconstitutional.\u201d We fully endorse the reasoning of the High Court and concur with its conclusion. We are of the opinion that the provision embodied in sub-section (3) of Section 172 of the CrPC cannot be characterised as unreasonable or arbitrary. Under sub-section (2) of Section 172 CrPC the court itself has the unfettered power to examine the entries in the diaries. This is a very important safeguard. The legislature has reposed complete trust in the court which is conducting the inquiry or the trial. It has empowered the court to call for any such relevant case diary; if there is any inconsistency or contradiction arising in the context of the case diary the court can use the entries for the purpose of contradicting the police officer as provided in sub- section (3) of Section 172 of the CrPC. Ultimately there can be no better custodian or guardian of the interest of justice than the court trying the case. No court will deny to itself the power to make use of the entries in the diary to the advantage of the accused by contradicting the police officer with reference to the contents of the diaries. In view of this safeguard, the charge of unreasonableness or arbitrariness cannot stand scrutiny. \u2026\u2026. Public interest demands that such an entry is not made available to the accused for it might endanger the safety of the informants and it might deter the informants from giving any information to assist the investigating agency, \u2026\u2026.\u201d [underlining added] 52. So far as the production of the case diary during trial and reference to the same by the court and the interdict against accused to call for case diary is governed by Section 172 Cr.P.C. As per sub-section (3) of Section 172, neither the accused nor his agent is entitled to call for such case diaries and also not entitled to see them during the course of enquiry or trial. The case diaries can be used for refreshing memory by the investigating officer and court can use it for the purpose of contradicting such police officer as per provisions of Section 161 or Section 145 of the Indian Evidence Act. Unless the investigating officer or the court so uses the case diary either to refresh the memory or for contradicting the investigating officer as previous statement under Section 161, after drawing his attention under Section 145, the entries in case diary cannot be used by the accused as evidence (vide Section 172(3) Cr.P.C.). 53. It is well-settled that the court can peruse the case diary/materials collected during investigation by the prosecution even before the commencement of the trial inter-alia in circumstances like:- (i) to satisfy its conscience as to whether the investigation is proceeding in the right direction; (ii) to satisfy itself that the investigation has been conducted in the right lines and that there is no misuse or abuse of process in the investigation; (iii) whether regular or anticipatory bail is to be granted to the accused or not; (iv) whether any further custody of the accused is required for the prosecution; (v) to satisfy itself as to the correctness of the decision of the High Court/trial court which is under challenge. The above instances are only illustrative and not exhaustive. Where the interest of justice requires, the court has the powers, to receive the case diary/materials collected during the investigation. As held in Mukund Lal, ultimately there can be no better custodian or guardian of the interest of justice than the court trying the case. Needless to point out that when the Court has received and perused the documents/materials, it is only for the purpose of satisfaction of court\u2019s conscience. In the initial stages of investigation, the Court may not extract or verbatim refer to the materials which the Court has perused (as has been done in this case by the learned Single Judge) and make observations which might cause serious prejudice to the accused in trial and other proceedings resulting in miscarriage of justice. 54. The Enforcement Directorate has produced the sealed cover before us containing the materials collected during investigation and the same was received. Vide order dated 29.08.2019, we have stated that the receipt of the sealed cover would be subject to our finding whether the court can peruse the materials or not. As discussed earlier, we have held that the court can receive the materials/documents collected during the investigation and peruse the same to satisfy its conscience that the investigation is proceeding in the right lines and for the purpose of consideration of grant of bail/anticipatory bail etc. In the present case, though sealed cover was received by this Court, we have consciously refrained from opening the sealed cover and perusing the documents. Lest, if we peruse the materials collected by the respondent and make some observations thereon, it might cause prejudice to the appellant and the other co-accused who are not before this court when they are to pursue the appropriate relief before various forum. Suffice to note that at present, we are only at the stage of considering the pre-arrest bail. Since according to the respondent, they have collected documents/materials for which custodial interrogation of the appellant is necessary, which we deem appropriate to accept the submission of the respondent for the limited purpose of refusing pre-arrest bail to the appellant. 55. Of course, while considering the request for anticipatory bail and while perusing the materials/note produced by the Enforcement Directorate/CBI, the learned Single Judge could have satisfied his conscience to hold that it is not a fit case for grant of anticipatory bail. On the other hand, the learned Single Judge has verbatim quoted the note produced by the respondent- Enforcement Directorate. The learned Single Judge, was not right in extracting the note produced by the Enforcement Directorate/CBI which in our view, is not a correct approach for consideration of grant/refusal of anticipatory bail. But such incorrect approach of the learned Single Judge, in our view, does not affect the correctness of the conclusion in refusing to grant of anticipatory bail to the appellant in view of all other aspects considered herein. Re: Contention:- The appellant should have been confronted with the materials collected by the Enforcement Directorate earlier, before being produced to the court. 56. On behalf of the appellant, it was contended that the materials produced by the Enforcement Directorate could have never been relied upon for the purpose of consideration of anticipatory bail unless the appellant was earlier confronted with those documents/materials. It was submitted that if the appellant\u2019s response was completely \u201cevasive\u201d and \u201cnon co-operative\u201d during the three days when he was interrogated i.e. 19.12.2018, 01.01.2019 and 21.01.2019, the respondent should place before the court the materials put to the appellant and the responses elicited from the accused to demonstrate to the court that \u201cthe accused was completely evasive and non-co-operative\u201d. 57. Contention of the appellant that the court will have to scrutinise the questions put to the accused during interrogation and answers given by the appellant and satisfy itself whether the answers were \u201cevasive or not\u201d, would amount to conducting \u201cmini trial\u201d and substituting court\u2019s view over the view of the investigating agency about the \u201ccooperation\u201d or \u201cevasiveness\u201d of the accused and thereafter, the court to decide the questions of grant of anticipatory bail. This contention is far-fetched and does not merit acceptance. 58. As rightly submitted by learned Solicitor General that if the accused are to be confronted with the materials which were collected by the prosecution/Enforcement Directorate with huge efforts, it would lead to devastating consequences and would defeat the very purpose of the investigation into crimes, in particular, white collar offences. If the contention of the appellant is to be accepted, the investigating agency will have to question each and every accused such materials collected during investigation and in this process, the investigating agency would be exposing the evidence collected by them with huge efforts using their men and resources and this would give a chance to the accused to tamper with the evidence and to destroy the money trail apart from paving the way for the accused to influence the witnesses. If the contention of the appellant is to be accepted that the accused will have to be questioned with the materials and the investigating agency has to satisfy the court that the accused was \u201cevasive\u201d during interrogation, the court will have to undertake a \u201cmini trial\u201d of scrutinizing the matter at intermediary stages of investigation like interrogation of the accused and the answers elicited from the accused and to find out whether the answers given by the accused are \u2018evasive\u2019 or whether they are \u2018satisfactory\u2019 or not. This could have never been the intention of the legislature either under PMLA or any other statute. 59. Interrogation of the accused and the answers elicited from the accused and the opinion whether the answers given by the accused are \u201csatisfactory\u201d or \u201cevasive\u201d, is purely within the domain of the investigating agency and the court cannot substitute its views by conducting mini trial at various stages of the investigation. 60. The investigation of a cognizable offence and the various stages thereon including the interrogation of the accused is exclusively reserved for the investigating agency whose powers are unfettered so long as the investigating officer exercises his investigating powers well within the provisions of the law and the legal bounds. In exercise of its inherent power under Section 482 Cr.P.C., the court can interfere and issue appropriate direction only when the court is convinced that the power of the investigating officer is exercised mala fide or where there is abuse of power and non-compliance of the provisions of Code of Criminal Procedure. However, this power of invoking inherent jurisdiction to issue direction and interfering with the investigation is exercised only in rare cases where there is abuse of process or non-compliance of the provisions of Criminal Procedure Code. 61. In King-Emperor v. Khwaja Nazir Ahmad AIR 1945 PC 18 : 1944 SCC Online PC 29, it was held as under:- \u201c\u2026..it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate case when moved under S. 491 of the Crl. P.C. \u2026.\u201d [underlining added] 62. The above decision in Khwaja Nazir Ahmad has been quoted with approval by the Supreme Court in Abhinandan Jha and others v. Dinesh Mishra AIR 1968 SC 117 and State of Bihar and another v. J.A.C. Saldanha and others (1980) 1 SCC 554. Observing that the investigation of the offence is the field exclusively reserved for the executive through the police department and the superintendence over which vests in the State Government, in J.A.C. Saldanha, it was held as under:- \u201c25. There is a clear-cut and well demarcated sphere of activity in the field of crime detection and crime punishment. Investigation of an offence is the field exclusively reserved for the executive through the police department the superintendence over which vests in the State Government. The executive which is charged with a duty to keep vigilance over law and order situation is obliged to prevent crime and if an offence is alleged to have been committed it is its bounded duty to investigate into the offence and bring the offender to book. Once it investigates and finds an offence having been committed it is its duty to collect evidence for the purpose of proving the offence. Once that is completed and the investigating officer submits report to the court requesting the court to take cognizance of the offence under Section 190 of the Code its duty comes to an end. On a cognizance of the offence being taken by the court the police function of investigation comes to an end subject to the provision contained in Section 173(8), there commences the adjudicatory function of the judiciary to determine whether an offence has been committed and if so, whether by the person or persons charged with the crime by the police in its report to the court, and to award adequate punishment according to law for the offence proved to the satisfaction of the court. There is thus a well defined and well demarcated function in the field of crime detection and its subsequent adjudication between the police and the Magistrate. This had been recognised way back in King Emperor v. Khwaja Nazir Ahmad AIR 1944 PC 18 \u2026\u2026...\u201d. The same view was reiterated in Dukhishyam Benupani, Asstt. Director, Enforcement Directorate (FERA) v. Arun Kumar Bajoria (1998) 1 SCC 52, M.C. Abraham and Another v. State of Maharashtra and Others (2003) 2 SCC 649, Subramanian Swamy v. Director, Central Bureau of Investigation and another (2014) 8 SCC 682 and Divine Retreat Centre v. State of Kerala and Others (2008) 3 SCC 542. 63. Investigation into crimes is the prerogative of the police and excepting in rare cases, the judiciary should keep out all the areas of investigation. In State of Bihar and another v. P.P. Sharma, IAS and another 1992 Supp. (1) 222, it was held that \u201cThe investigating officer is an arm of the law and plays a pivotal role in the dispensation of criminal justice and maintenance of law and order. \u2026..Enough power is therefore given to the police officer in the area of investigating process and granting them the court latitude to exercise its discretionary power to make a successful investigation\u2026\u201d. In Dukhishyam Benupani, Asstt. Director, Enforcement Directorate (FERA) v. Arun Kumar Bajoria (1998) 1 SCC 52, this Court held that \u201c\u2026\u2026it is not the function of the court to monitor investigation processes so long as such investigation does not transgress any provision of law. It must be left to the investigating agency to decide the venue, the timings and the questions and the manner of putting such questions to persons involved in such offences. A blanket order fully insulating a person from arrest would make his interrogation a mere ritual.\u201d 64. As held by the Supreme Court in a catena of judgments that there is a well-defined and demarcated function in the field of investigation and its subsequent adjudication. It is not the function of the court to monitor the investigation process so long as the investigation does not violate any provision of law. It must be left to the discretion of the investigating agency to decide the course of investigation. If the court is to interfere in each and every stage of the investigation and the interrogation of the accused, it would affect the normal course of investigation. It must be left to the investigating agency to proceed in its own manner in interrogation of the accused, nature of questions put to him and the manner of interrogation of the accused. 65. It is one thing to say that if the power of investigation has been exercised by an investigating officer mala fide or non-compliance of the provisions of the Criminal Procedure Code in the conduct of the investigation, it is open to the court to quash the proceedings where there is a clear case of abuse of power. It is a different matter that the High Court in exercise of its inherent power under Section 482 Cr.P.C., the court can always issue appropriate direction at the instance of an aggrieved person if the High Court is convinced that the power of investigation has been exercised by the investigating officer mala fide and not in accordance with the provisions of the Criminal Procedure Code. However, as pointed out earlier that power is to be exercised in rare cases where there is a clear abuse of power and non-compliance of the provisions falling under Chapter-XII of the Code of Criminal Procedure requiring the interference of the High Court. In the initial stages of investigation where the court is considering the question of grant of regular bail or pre-arrest bail, it is not for the court to enter into the demarcated function of the investigation and collection of evidence/materials for establishing the offence and interrogation of the accused and the witnesses. 66. Whether direction to produce the transcripts could be issued:- Contention of the appellant is that it has not been placed before the court as to what were the questions/aspects on which the appellant was interrogated on 19.12.2018, 01.01.2019 and 21.01.2019 and the Enforcement Directorate has not been able to show as to how the answers given by the appellant are \u201cevasive\u201d. It was submitted that the investigating agency-Enforcement Directorate cannot expect the accused to give answers in the manner they want and the investigating agency should always keep in their mind the rights of the accused protected under Article 20(3) of the Constitution of India. Since the interrogation of the accused and the questions put to the accused and the answers given by the accused are part of the investigation which is purely within the domain of the investigation officer, unless satisfied that the police officer has improperly and illegally exercised his investigating powers in breach of any statutory provision, the court cannot interfere. In the present case, no direction could be issued to the respondent to produce the transcripts of the questions put to the appellant and answers given by the appellant. Grant of Anticipatory bail in exceptional cases:- 67. Ordinarily, arrest is a part of procedure of the investigation to secure not only the presence of the accused but several other purposes. Power under Section 438 Cr.P.C. is an extraordinary power and the same has to be exercised sparingly. The privilege of the pre-arrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after application of mind as to the nature and gravity of the accusation; possibility of applicant fleeing justice and other factors to decide whether it is a fit case for grant of anticipatory bail. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence and hence, the court must be circumspect while exercising such power for grant of anticipatory bail. Anticipatory bail is not to be granted as a matter of rule and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy. 68. On behalf of the appellant, much arguments were advanced contending that anticipatory bail is a facet of Article 21 of the Constitution of India. It was contended that unless custodial interrogation is warranted, in the facts and circumstances of the case, denial of anticipatory bail would amount to denial of the right conferred upon the appellant under Article 21 of the Constitution of India. 69. Article 21 of the Constitution of India states that no person shall be deprived of his life or personal liberty except according to procedure prescribed by law. However, the power conferred by Article 21 of the Constitution of India is not unfettered and is qualified by the later part of the Article i.e. \u201c\u2026except according to a procedure prescribed by law.\u201d In State of M.P. and another v. Ram Kishna Balothia and another (1995) 3 SCC 221, the Supreme Court held that the right of anticipatory bail is not a part of Article 21 of the Constitution of India and held as under:- \u201c7. \u2026\u2026We find it difficult to accept the contention that Section 438 of the Code of Criminal Procedure is an integral part of Article 21. In the first place, there was no provision similar to Section 438 in the old Criminal Procedure Code. The Law Commission in its 41st Report recommended introduction of a provision for grant of anticipatory bail. It observed: \u201cWe agree that this would be a useful advantage. Though we must add that it is in very exceptional cases that such power should be exercised.\u201d In the light of this recommendation, Section 438 was incorporated, for the first time, in the Criminal Procedure Code of 1973. Looking to the cautious recommendation of the Law Commission, the power to grant anticipatory bail is conferred only on a Court of Session or the High Court. Also, anticipatory bail cannot be granted as a matter of right. It is essentially a statutory right conferred long after the coming into force of the Constitution. It cannot be considered as an essential ingredient of Article 21 of the Constitution. And its non-application to a certain special category of offences cannot be considered as violative of Article 21.\u201d [underlining added] 70. We are conscious of the fact that the legislative intent behind the introduction of Section 438 Cr.P.C. is to safeguard the individual\u2019s personal liberty and to protect him from the possibility of being humiliated and from being subjected to unnecessary police custody. However, the court must also keep in view that a criminal offence is not just an offence against an individual, rather the larger societal interest is at stake. Therefore, a delicate balance is required to be established between the two rights - safeguarding the personal liberty of an individual and the societal interest. It cannot be said that refusal to grant anticipatory bail would amount to denial of the rights conferred upon the appellant under Article 21 of the Constitution of India. 71. The learned Solicitor General has submitted that depending upon the facts of each case, it is for the investigating agency to confront the accused with the material, only when the accused is in custody. It was submitted that the statutory right under Section 19 of PMLA has an in-built safeguard against arbitrary exercise of power of arrest by the investigating officer. Submitting that custodial interrogation is a recognised mode of interrogation which is not only permissible but has been held to be more effective, the learned Solicitor General placed reliance upon State Rep. By The CBI v. Anil Sharma (1997) 7 SCC 187; Sudhir v. State of Maharashtra and Another (2016) 1 SCC 146; and Assistant Director, Directorate of Enforcement v. Hassan Ali Khan (2011) 12 SCC 684. 72. Ordinarily, arrest is a part of the process of the investigation intended to secure several purposes. There may be circumstances in which the accused may provide information leading to discovery of material facts and relevant information. Grant of anticipatory bail may hamper the investigation. Pre-arrest bail is to strike a balance between the individual\u2019s right to personal freedom and the right of the investigating agency to interrogate the accused as to the material so far collected and to collect more information which may lead to recovery of relevant information. In State Rep. By The CBI v. Anil Sharma (1997) 7 SCC 187, the Supreme Court held as under:- \u201c6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders.\u201d 73. Observing that the arrest is a part of the investigation intended to secure several purposes, in Adri Dharan Das v. State of W.B. (2005) 4 SCC 303, it was held as under:- \u201c19. Ordinarily, arrest is a part of the process of investigation intended to secure several purposes. The accused may have to be questioned in detail regarding various facets of motive, preparation, commission and aftermath of the crime and the connection of other persons, if any, in the crime. There may be circumstances in which the accused may provide information leading to discovery of material facts. It may be necessary to curtail his freedom in order to enable the investigation to proceed without hindrance and to protect witnesses and persons connected with the victim of the crime, to prevent his disappearance, to maintain law and order in the locality. For these or other reasons, arrest may become an inevitable part of the process of investigation. The legality of the proposed arrest cannot be gone into in an application under Section 438 of the Code. The role of the investigator is well defined and the jurisdictional scope of interference by the court in the process of investigation is limited. The court ordinarily will not interfere with the investigation of a crime or with the arrest of the accused in a cognizable offence. An interim order restraining arrest, if passed while dealing with an application under Section 438 of the Code will amount to interference in the investigation, which cannot, at any rate, be done under Section 438 of the Code.\u201d 74. In Siddharam Satlingappa Mhetre v. State of Maharashtra and Others (2011) 1 SCC 694, the Supreme Court laid down the factors and parameters to be considered while dealing with anticipatory bail. It was held that the nature and the gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made and that the court must evaluate the available material against the accused very carefully. It was also held that the court should also consider whether the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her. 75. After referring to Siddharam Satlingappa Mhetre and other judgments and observing that anticipatory bail can be granted only in exceptional circumstances, in Jai Prakash Singh v. State of Bihar and another (2012) 4 SCC 379, the Supreme Court held as under:- \u201c19. Parameters for grant of anticipatory bail in a serious offence are required to be satisfied and further while granting such relief, the court must record the reasons therefor. Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty. (See D.K. Ganesh Babu v. P.T. Manokaran (2007) 4 SCC 434, State of Maharashtra v. Mohd. Sajid Husain Mohd. S. Husain (2008) 1 SCC 213 and Union of India v. Padam Narain Aggarwal (2008) 13 SCC 305.)\u201d Economic Offences:- 76. Power under Section 438 Cr.P.C. being an extraordinary remedy, has to be exercised sparingly; more so, in cases of economic offences. Economic offences stand as a different class as they affect the economic fabric of the society. In Directorate of Enforcement v. Ashok Kumar Jain (1998) 2 SCC 105, it was held that in economic offences, the accused is not entitled to anticipatory bail. 77. The learned Solicitor General submitted that the \u201cScheduled offence\u201d and \u201coffence of money laundering\u201d are independent of each other and PMLA being a special enactment applicable to the offence of money laundering is not a fit case for grant of anticipatory bail. The learned Solicitor General submitted that money laundering being an economic offence committed with much planning and deliberate design poses a serious threat to the nation\u2019s economy and financial integrity and in order to unearth the laundering and trail of money, custodial interrogation of the appellant is necessary. 78. Observing that economic offence is committed with deliberate design with an eye on personal profit regardless to the consequence to the community, in State of Gujarat v. Mohanlal Jitamalji Porwal and others (1987) 2 SCC 364, it was held as under:- \u201c5. \u2026.The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even-handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the national economy and national interest\u2026..\u201d 79. Observing that economic offences constitute a class apart and need to be visited with different approach in the matter of bail, in Y.S. Jagan Mohan Reddy v. CBI (2013) 7 SCC 439, the Supreme Court held as under:- \u201c34. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offences having deep-rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country. 35. While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations.\u201d [underlining added] 80. Referring to Dukhishyam Benupani, Assistant Director, Enforcement Directorate (FERA) v. Arun Kumar Bajoria (1998) 1 SCC 52, in Enforcement Officer, Ted, Bombay v. Bher Chand Tikaji Bora and others (1999) 5 SCC 720, while hearing an appeal by the Enforcement Directorate against the order of the Single Judge of the Bombay High Court granting anticipatory bail to the respondent thereon, the Supreme Court set aside the order of the Single Judge granting anticipatory bail. 81. Grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting the useful information and also the materials which might have been concealed. Success in such interrogation would elude if the accused knows that he is protected by the order of the court. Grant of anticipatory bail, particularly in economic offences would definitely hamper the effective investigation. Having regard to the materials said to have been collected by the respondent-Enforcement Directorate and considering the stage of the investigation, we are of the view that it is not a fit case to grant anticipatory bail. 82. In a case of money-laundering where it involves many stages of \u201cplacement\u201d, \u201clayering i.e. funds moved to other institutions to conceal origin\u201d and \u201cinterrogation i.e. funds used to acquire various assets\u201d, it requires systematic and analysed investigation which would be of great advantage. As held in Anil Sharma, success in such interrogation would elude if the accused knows that he is protected by a pre-arrest bail order. Section 438 Cr.P.C. is to be invoked only in exceptional cases where the case alleged is frivolous or groundless. In the case in hand, there are allegations of laundering the proceeds of the crime. The Enforcement Directorate claims to have certain specific inputs from various sources, including overseas banks. Letter rogatory is also said to have been issued and some response have been received by the department. Having regard to the nature of allegations and the stage of the investigation, in our view, the investigating agency has to be given sufficient freedom in the process of investigation. Though we do not endorse the approach of the learned Single Judge in extracting the note produced by the Enforcement Directorate, we do not find any ground warranting interference with the impugned order. Considering the facts and circumstances of the case, in our view, grant of anticipatory bail to the appellant will hamper the investigation and this is not a fit case for exercise of discretion to grant anticipatory bail to the appellant. 83. In the result, the appeal is dismissed. It is for the appellant to work out his remedy in accordance with law. As and when the application for regular bail is filed, the same shall be considered by the learned trial court on its own merits and in accordance with law without being influenced by any of the observations made in this judgment and the impugned order of the High Court. \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026..J. [R. BANUMATHI] \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026..J. [A.S. BOPANNA] New Delhi; September 05, 2019",
        "1011232": "PETITIONER: ACHUTANANDA PUROHIT AND ORS. Vs. RESPONDENT: THE STATE OF ORISSA DATE OF JUDGMENT26/03/1976 BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. CHANDRACHUD, Y.V. UNTWALIA, N.L. CITATION: 1976 AIR 2118 1976 SCR (3) 919 1976 SCC (3) 183 ACT: Orissa Estates Abolition Act, 1951-Secs. 26-27- Constitution of India Articles 31A-31B-31(2)-31(3)-Agrarian reform-Whether interest at market rate or statutory rate- Calculation of compensation. HEADNOTE: The appellant was the intermediary in respect of vast forest and other lands in the State of Orissa. The estates vested in the State in April 1960 by force of the Orissa Estates Abolition Act, 1951. The appellant submitted necessary return for compensation as provided by the Act. The Compensation Officer passed an order adverse to the appellant whereupon the appellant filed an appeal to the Collector which was rejected. A second appeal filed before the Board of Revenue was dismissed. Later on, Revision Petitions were filed in the High Court. The High Court set aside the order and directed remand to the Compensation Officer. Thereafter, the District Forest Officer made his appraisal of the annual income and submitted to the Chief Conservator of Forests who altered the actual yield and reduced it substantially. Both the State and the appellant filed appeals to the Collector which were dismissed. A second appeal was filed by the appellant before the Board of Revenue without success. In the Revision Applications filed before the High Court which led to the remand now challenged in the present appeals the appellant contended before this Court: (1) The interest ought to have been awarded at 12 per cent as against the statutory rate of 2 1/2 per cent from the date of the vesting till payment. (2) Compensation money should be so calculated that the purchasing power of the amount of compensation to be paid on the date of actual payment will not be less than the purchasing power on the date of vesting. (3) The slab-system of calculation of compensation in the Act providing smaller multiples for estates yielding larger income is unconstitutional. (4) Unlike in case of fisheries etc., where the actual income is to be included in the gross assets, in the case of forests, the assumed income and not the actual income is to be included. During the agricultural year immediately preceding the abolition, the petitioners had not actually derived any income from the forests and as such they were under no obligation to pay any income tax on such income. Therefore, deduction of income tax from the gross assets is illegal and unwarranted. (5) The compensation has not been computed in accordance with the scheme of the Act. (6) The date of vesting is the last date by which the calculation of compensation should have been made and since that had not been done the Compensation Officer had become functus officio in awarding compensation. Dismissing the appeals, ^ HELD: 1. The policy of the law of agrarian reforms postulates the extinguishment of ancient privileges and cornering of land resources and the socio-economic yardstick is different from what applies to ordinary purchases of real estate and this is manifest in the special provisions contained in Article 31A and 31B of the Constitution. A similar principle applies to the award of interest which may sometimes be notional when feudal interests are puffed out. The 920 dynamic rule of law with a social mission makes a meaningful distinction between rights steeped in the old system and compensation for deprivation of those interests on the one hand and the ordinary commercial transactions on the other. [923 F-G] 2. It is more or less a world phenomenon that the erosion in value of the unit of currency has been taking place. But this invisible devaluation owing to the inflationary spiral does not affect the quantum of monetary compensation prescribed by statute. For the purposes of the law, the rupee of long ago is the same as the rupee of today although for the purposes of the, market place and cost of living, the housewife's answer may be different. [924B-C] 3. Article 31(3) read with Article 31(2) bars any challenge to the amount of compensation on acquisition by the State subject to the compliance with the prescriptions in the said sub articles on the ground that the amount so fixed or determined is not adequate. Presidential assent has been accorded to this State Act and so the ban operates. [924C-D] 4. The submission of the appellant proceeds on a misreading of section 27. In the case of forests it is the assumed and not the actual income that forms the basis for calculation of compensation. Similarly an assumed income tax also has to be worked out and deducted. [924F-G] 5. The scheme of the Act is that the compensation must be calculated on the basis of appraisal of the annual yield of the forests on the date of vesting firstly by a Forest Officer and secondly by the Chief Conservator of Forests,screening it and approving it. In the present case, the Chief Conservator had substituted his appraisement which was accepted by the statutory Tribunal. There was a fundamental difference in the basis adopted by the Forest Officer and the Chief Conservator of Forests in the matter of assessing in the income of the Forest in question. What the Chief Conservator did was not to approve wholly or in a modified form what the Forest Officer did but to make his own appraisal independently and without reference to the report of the statutory functionary. This was wrong and contrary to section 26. This Court is in agreement with the course adopted by the High Court and the reasoning which has prevailed with it. [925C, 927A-B] 6. Before the date of vesting the State never can nor does fix the compensation through the Compensation Officer in any of the agrarian reform laws and these compensation operations are post-statutory exercises. Therefore, there is no substance in the funtcus officio argument. If the officer had no jurisdiction the land would be gone because of the vesting provision and no compensation would be forthcoming for want of jurisdiction; a consequence the appellant never wants. Technicality can be frightened away by technicality. [927D-E] 7. After remand the Forest Officer will do the appraisement of the annual income, forward his report to the Chief Conservator of Forests who will take the said report into consideration and, if necessary, make the modifications therein or approve it with such changes as he deems fit. Certainly, the Chief Conservator cannot be ignored by the Compensation Officer nor can the Chief Conservator ignore the assessment made by the Forest Officer and go through an independent exercise. The take over of the forest of the appellant was effected as early as in 1960. The High Court has stated that a large part of the delay has been due to laches committed from time to time by the officers charged with the duty to calculate the compensation. It is therefore directed that the proceedings before the Compensation Officer shall be completed within six months from today. [927F-H, 928A-B] JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 312 to 314 of 1972. Appeals by Special Leave from the Judgment and Order dated the 19-3-71 of the Orissa High Court in C.W. Nos. 325 to 327/70. Appellant No. 1 in person and D. N. Misra for the Appellants. Gobind Das and G. S. Chatterjee for the Respondent. The Judgment of the Court was delivered by. KRISHNA IYER, J. Three civil appeals, stemming from three revision petitions to the High Court of Orissa under the Orissa Estates Abolition Act, 1951 (Orissa Act I of 1952) (for short, the Act) have reached this Court, thanks to special leave granted to the appellant, who is common in all the cases. The High Court, after deciding various issues, remanded the cases to the Compensation Officer under the Act, after over-ruling most of the contentions pressed before it by the appellant. Shri Achutananda Purohit, appellant, was the intermediary in respect of vast forests and other lands comprised in the estate of Jujumura in the district of Sambalpur. This estate vested in the State on April 1, 1960 by force of the Act and the crucial question agitated before us, consequentially turns on the quantum of compensation awardable under Chapter V of the Act. The appellant has received around Rs. 3,00,000/- but much more, according to him, is due and this controversy can be settled by examining his specific points. Shri Purohit, appellant, is an Advocate by profession and is 83 years old. He has argued in person and with passion. We have listened with patience to all his submissions, good, bad and indifferent. If we may anticipate ourselves, none of the nine submissions has appealed to us, save to the extent the High Court has upheld. Even so, a minimal narration of the facts and a brief consideration of each argument is necessary and we proceed to do so. While his arguments did not impress us, we were touched by his concluding words that he had been born and had grown in an adivasi village, in the only brahmin family and, in his evening years of life, proposed to give a substantial part of the compensation the State would give him for adivasi welfare. Although he waxed sentimentally on this note, he did not convince us on his contentions. With these prefatory observations, we proceed to formulate the many points urged and give our findings and reasons, one after the other. We are directly concerned with the issue of compensation which is dealt with, as earlier stated, in Chapter V of the Act. The Compensation Officer is charged with fixing the quantum in the prescribed manner. A compensation assessment roll containing the gross asset and net income of each estate, together with the compensation payable in respect of such estate, has to be prepared by him. Of course, when there is joint ownership, s. 24 stipulates that the compensation shall be determined for the estate as a whole and not separately for each of the shares therein. Section 26 has great relevance as it lays down the method of arriving at the gross asset and s. 27 has like significance as it focuses on the manner in which the net income from an estate shall be computed by deducting certain items from the gross asset of the estate. Section 28 states how the amount of compensation is to be determined and the methodology of payment. There are a few other sections in Chapter VI which deal with payment of compensation. The Act also provides for appeal, second appeal and revision, the last being to the High Court and the earlier ones being to the Collector and a Board constituted under s. 22. The rule-making power is vested in the government under s. 47 and there is a routine 'removal of difficulties' clause contained in s. 50. These furnish in bare outline the provisions with which we are directly concerned. Against the background of law just projected, we may set out Shri Purohit's points which, if we may say so, are substantially the same as have been argued by him in revision before the High Court with partial success. For convenience of reference, we may extract the statement by the High Court of the contentions urged before it (and repeated before us) by the appellant: \"(1) The provisions of s. 37(3) read with s. 26(2) (b) (v) of the Act make it clear that the date of vesting is the last date by which the calculation of compensation should have been made. As admittedly compensation had not been calculated by the date of vesting, the Compensation Officer lost his statutory jurisdiction to do so. It is this Court which, by its order dated 10-4-1969 in Civil Revisions 201, 202 and 203 of 1968 conferred new jurisdiction on the Compensation Officer to deal freshly with the case and therefore notwithstanding anything contained in the Act, the compensation has to be calculated according to the directions given by the Court; (2) The Court was fully aware of the statutory provision in s. 26(2) (b) (v) of the Act, but in spite of it, the direction was that the Divisional Forest Officer should make the appraisement. There was no direction that this report of the D.F.O. should be further subject to the approval of the Chief Conservator of Forests. The calculation made by the Chief Conservator of Forests therefore has no statutory force but could be just a piece of evidence. But as the Court directed that no further evidence on behalf of the State should be received, Ext. A/1 is inadmissible in evidence. (3) Assuming that in spite of the directions of the court the Compensation Officer is entitled to follow the procedure laid down in Section 26(2)(b)(v), the expression 'subject to the approval of the Chief Conservator of Forests' does not refer to the appraisement made by the D.F.O. but refers to his appointment. (4) Assuming that s. 26(2) (b) (v) would have full force, what it contemplates is that the appraisement must be made by the D.F.O., and it is subject to the approval by the Chief Conservator of Forests. But what has happened here is that the Chief Conservator himself made the appraisement without referring to the appraisement made by the D.F.O. and as such the appraisement made by the Chief Conservator is invalid. (5) The report of the Chief Conservator of Forests is also invalid because of the fact that the appraisement is made only with reference to the area of the disputed forests without taking into consideration the density of growth therein; (6) Unlike in case of fisheries etc., where the actual income is to be included in the gross assets, in the case of forests, the assumed income and not the actual income is to be included. During the agricultural year immediately preceding the abolition, the petitioners had not actually derived any income from the forests and as such they were under no obligation to pay any income-tax on such income. Therefore, deduction of income-tax from the gross assets is illegal and unwarranted. (7) The slab-system of calculation of compensation in the Act providing smaller multiples for estates yielding larger income is unconstitutional. (8) Compensation money should be so calculated that the purchasing power of the amount of compensation to be paid on the date of actual payment will not be less than its purchasing power on the date of vesting; and (9) Interest should be calculated at not less than 12% per annum from the date of vesting till payment.\" The meat of the matter, the primary question agitated in the appeal, lopping off the fringe issues of lesser import, consists in the statutory methodology and functionaries prescribed by the Act for quantifying the compensation and the compliance therewith by the statutory machinery in the case of the appellant. But before examining this essential issue we may dispose of the minor points pressed, so that the deck may be cleared for dealing with what deserves to be dealt with. Point No. 9, in the catalogue already given, relates to the claim for 12% interest on the amount of compensation as against the statutory rate of 2 1/2%. The policy of the law of agrarian reform postulates the extinguishment of ancient privileges and cornering of land resources, and the socio- economic yardstick is different from what applies to ordinary purchases of real estate and this is manifest in the special provisions contained in Art. 31A and Art. 31B of the Constitution. A similar principle applies to the award of interest which may sometimes be notional when feudal interests are puffed out. We cannot import the notion of prevailing bank rates in such situations. The dynamic rule of law, with a social mission, makes a meaningful distinction between rights steeped in the old system and compensation for deprivation of those interests, on the one hand, and the ordinary commercial transactions or regulation of rights untinged by social transformation urges, on the other. This gives rationality to the seeming disparity. Holmes once commented: 'It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV'. Here there is good reason to depart from the old rule of full compensation and it perhaps legitimates the reduced rate of recompense. Moreover, the High Court has rightly pointed out that the validity of s. 37(3) of the Act which fixes a small rate of interest on the compensation amount has been upheld by the Supreme Court in Gajapati Narayan's Case(1). Point No. 8 has only to be stated to be rejected. The contention is that on the date of vesting, which was well over two decades ago, the purchasing power of the rupee was much higher than its present value. It is more or less a world phenomenon that the erosi on in value of the unit of currency has been taking place, but this invisible devaluation owing to the inflationary spiral does not affect the quantum of monetary compensation prescribed by statute. For the purposes of the law, the rupee of long ago is the same as the rupee of today, although for the purposes of the market place and cost-of living, the housewife's answer may be different. Law is sometimes blind. The next point in the reverse order is equally unsubstantial and may be disposed of right away. The appellant challenges the slab system of compensation provided in the Act which awards smaller multiples for estates yielding larger incomes, on the score of violation of the fundamental rights under the Constitution. The short answer is that Art. 31(3) read with Art. 31(2) bars any challenge to the amount of compensation on acquisition by the State subject to compliance with the prescriptions in the said sub-Articles, on the ground that the amount so fixed or determined is not adequate. Presidential assent has been accorded to this State Act and so the ban operates. Moreover, Art. 31A repels the applicability of Arts. 14, 19 and 31 to the acquisition by the State of any estate or of any rights therein etc. This provision directly demolishes the contention of the appellant. Point No. 6 in the list of contentions earlier reproduced is also bereft of force and we may make short shrift of it. The argument is that for certain reasons the appellant could not derive and actual income from the forests taken over by the State from him and therefore there was no income-tax payable on any agricultural income from these forests. The contention is that therefore in arriving at the next income the deduction of income-tax is not permissible. Here again, the flaw in the submission consists in mis-reading s. 27 of the Act which expressly states that the net income from an estate shall be computed by deducting from the gross assets of such estate any sum 'which was payable by the intermediary as income-tax in respect of any income ..... derived from such estate for the previous agricultural year'. No income, therefore no income-tax, and therefore no deduction, is the syllogism of Shri Purohit. He forgets that in the case of forests it is the assumed income and not the actual income that forms the basis of calculation of compensation. Indeed, if the actual income were to be the foundation for computation of compensation on the premise that not actual income has accrued, the compensation might be zero. On the other hand, statutory compensation is provided for on the formula of assumed income in the previous year. Similarly, an assumed income- tax also has to be worked out and deducted. If a notional income on the assumed basis can be used for fixing compensation, a notional income-tax can be calculated and deducted. The confusion that vitiates the argument is prompted by a circular letter of government regarding non- deductability of income-tax due to the State from the amount of compensation lying to the credit of estateholders. We have examined the circular letter and are satisfied that it has no relevance to a situation like the present and it deals with a totally different matter. In short, s. 27 properly construed, can not lend itself to the meaning imputed to it by the appellant. The serious question that survives for consideration is covered by the remaining points which more or less overlap. The statutory scheme of compensation for forest lands consists of a machinery for assessment of the net income which is multiplied on a sliding scale and the method of challenge to the determination by the aggrieved owner of State. Section 26(2) (b) (v) is relevant here and may be set out: \"26(2) 'gross asset' when used with reference to an estate means the aggregate of the rents, including all cesses, which were payable in respect of the estate for the previous agricultural year- (b) by the raiyats or any other persons cultivating the land other than the land settled with the intermediary or intermidaris under Sub-section (1) of Section 7 and includes:- (v) gross income from forests calculated on the basis of the appraisement made of annual yield of the forests on the date of vesting by a Forest Officer subject to the approval of the Chief Conservator of Forests, such Forest Officer being not below the rank of a Divisional Forest Officer to be appointed in this behalf by the State Government.\" The expression 'Forest Officer', used here, has been explained in s. 26. So the first step is for the Government to appoint Forest Officers from out of D.F.Os. in the Forest Department, for the purposes of the Act. Those Officers ascertain the income from the forest concerned and the figure so fixed is subject to the approval of the C.C.F. (Chief Conservator of Forests), presumably the top expert in the department. The power to approve implies the power to disapprove or modify but not to report or arrive at an income de hors the Forest Officer's Report altogether. The section is clear that the gross income from forests must be calculated on the basis of appraisal of the annual yield on the date of vesting firstly, by a Forest Officer and, secondly, by the Chief Conservator of Forests screening it and approving it. Indeed, preliminary to the appraisal operation, the intermediary receives a notice in Form 'D' (rule 13) and he is expected to furnish a return of the relevant particulars and supporting information to enable correct appraisement. In the present case, the appellant did submit the 'D' return to the Compensation Officer and adduced some evidence to substantiate it. The Compensation Officer passed an order adverse to the appellant, where upon he filed an appeal to the Collector which was rejected. A Second Appeal followed before the Board of Revenue which was dismissed. Later, revision petition were filed before the High Court and G. K. Misra J., set aside the order disallowing the inclusion of the income from forests for ascertainment of compensation and directed a remand to the Compensation Officer. The said order (the relevant portion of which we are concerned) runs thus: \"He would immediately call upon the Divisional Forest Officer to make appraisement within three months from the receipt of the record. The appraisement can be scientifically done by looking to the age of the trees as they stand now. It is open to the petitioners to give evidence that after the date of vesting many of the trees and forest produce have been removed. Besides the evidence already on record would be taken into consideration. The Divisional Forest Officer who would make the appraisement will be examined as a witness for the Compensation Officer and would be subjected to cross-examination. No other evidence would be permissible as the State has not chosen to give any other evidence. Under Rule 13(1-c) of the Orissa Estates Abolition Rules, 1952 the compensation officer may rely upon such other materials as may otherwise be ascertained by him. But in such a case the materials must be brought to the notice of the petitioners who would be entitled to cross-examine the witnesses connected therewith and may give rebutting evidence. The compensation case is to be disposed of by the compensation officer within six months from today (10- 4-1969) with intimation to this Court.\" Strictly speaking, the statutory requirement is for initial appraisal of the annual income by the Forest Officer. The use of the expression 'Divisional Forest Officers is erroneous although Forest Officers are appointed from among Divisional Forest Officers. Equally clearly, a slight error has crept into the Judge's order because he does not make any reference specifically to the statutory requirement of approval of the Chief Conservator of Forests of the appraisement made by the Forest Officer. However, what followed is interesting though erroneous. The District Forest Officer (who, incidentally, happens to be a Forest Officer under the Act, having been appointed as required thereunder) made his appraisal of the annual income and submitted to the Chief Conservator who altered the annual yield and reduced it substantially. But he pointed out that the Forest Officer had omitted to include the income from kendu leaves and added that sum to the income from forests. Even so, the total figure was less than what the Divisional Forest Officer had recommended. The Compensation officer accepted the report of the Chief Conservator and made the statutory calculation on that date. Both the State and the appellant filed appeals to the Collector which were dismissed. A second appeal was filed by the appellant before the Board of Revenue without success. Then followed three revision petitions to the High Court which led to the order of remand now attacked before us in the present appeals. From this narrative, what follows is that the Chief Conservator had substituted his appraisement which was accepted by the statutory tribunal. Indeed, there was a fundamental difference in the basis adopted by the Forest Officer and the Chief Conservator in the matter of assessing the income of the forests in question. We need not go into this detail except for the purpose of noticing that what the Chief Conservator did was not to approve wholly or in a modified form what the Forest Officer did but to make his own appraisal independently and without reference to the report of the statutory functionary, viz., the Forest Officer. This was wrong and contrary to s. 26, as was contended by the appellant and in a way accepted by the High Court. We are in agreement with the course adopted by the High Court and the reasoning which has prevailed with it. The direction given by the learned Judge in the remand order is correct although it may require a little clarification. Having heard the appellant at some length, we see no flaw in the High Court's order on this aspect of the matter. It is astonishing that anyone should urge, as the appellant did, that the date of vesting is the last date by which the calculation of compensation should have been made and since that had not been done, the Compensation Officer had become functus officio in awarding compensation. Before the date of vesting the State never can, nor does, fix the compensation through the Compensation officer in any of the agrarian reform laws, and these compensation operations are poststatutory exercises. Therefore there is no substance in the functus officio argument. If the officer had no jurisdiction, the land would be gone because of the vesting provision and no compensation would be forthcoming for want of jurisdiction-a consequence the appellant never wants. Technicality can be frightened away by technicality. Nor is it right to contend, as the appellant did, that the Compensation Officer's jurisdiction was created by the order of remand by the High Court. No, it was created by the statute and canalised by the order of remand. It follows that, after the present second remand, the re-appraisal of the annual net income cannot be done solely by the Forest Officer without securing the approval of the Chief Conservator. Nor can the Compensation Officer by-pass the Chief Conservator on the misunderstood strength of the High Court's first order of remand. The true legal drill is- and this holds good after the second remand order-that the Forest officer will do the appraisement of the annual income, forward his report to the Chief Conservator of Forests who will take the said report into consideration and, if necessary, make modifications therein or approve it with such changes as he deems fit. Certainly the Chief Conservator cannot be ignored by the Compensation Officer nor can the Chief Conservator ignore the assessment made by the Forest Officer and go through an independent exercise. The integrated process has already been explained by us and will be followed in the proceedings to ensue on remand. We may make it clear that now that a Forest officer has made an appraisement, the Chief Conservator of Forests will apply his mind to it and approve it as a whole or with such modifications as he thinks necessary and forward it to the Compensation Officer. This will, among other things, save time. Thereafter, the appropriate statutory course will follow. Substantially, this is what has been done by the learned Judge when allowing the revisions and remitting the case back to the Compensation Officer. The take-over of the forests of the appellant was effected as early as 1960 and 16 years have passed without the intermediary being out of the litigative woods. The High Court has stated that a large part of the delay has been 'due to laches committed from time to time by the Officers who have been charged with the duty to calculate the compensation. It is again due to mistakes committed by the authorities concerned that the matter is being remitted back to the Compensation Officer for disposal'. The force of these observations constrains us to direct that the proceedings before the Compensation Officer shall be completed within six months from today. In this context, it is perhaps not irrelevant to remember that the appellant, a freedom-fighter, is an 83-year-old man and, at this stage of his life, the State should show commisseration not merely in quickly disposing of the proceedings but also in not being cantankerous in awarding and disbursing the balance compensation. With these directions and observations we affirm the orders under appeal but, while dismissing the appeals, direct the parties to bear their costs in this Court. P.H.P. Appeals dismissed.",
        "156503": "PETITIONER: MOHAN LAL SHAMLAL SONI Vs. RESPONDENT: UNION OF INDIA AND ANOTHER DATE OF JUDGMENT22/02/1991 BENCH: PANDIAN, S.R. (J) BENCH: PANDIAN, S.R. (J) REDDY, K. JAYACHANDRA (J) CITATION: 1991 AIR 1346 1991 SCR (1) 712 1991 SCC Supl. (1) 271 JT 1991 (3) 17 1991 SCALE (1)401 ACT: Code of Criminal Procedure 1973-Section 311 (Corresponding to section 540 of the old code)-Summoning of person as witness-Recall or re-examine of such person- Juridiction of Court-To be dictated by exigency of situation and fair play. HEADNOTE: Appellant's business and residential premises were raided by the Customs Department as a result whereof gold ingots with foreign marks, gold ornaments, silver bricks, coins and a cash of Rs.79,000 was seized. The Assistant Collector of Customs filed two separate complaints relating to the said incident against the appellant before the Judicial magistrate, one for violating the provisions of Customs Act, 1962 and the other under the Gold Control Act, 1968. In the trial, after the close of evidence by both sides, prosecution as also defence, arguments were advanced on behalf of the accused appellant. The prosecution at that stage before commencing its arguments filed two applications in both the cases, under Section 540 of the Old Code (corresponding to section 311 of the new Code) requesting the trial court to recall one witness viz., the Seizing officer, and issue summons to two more witnesses for examination either as prosecution witnesses or as court witnesses. The trial magistrate rejected both the application and the revision petitions preferred by the respondents against that order failed before the Sessions Judge. The Union of India thereupon preferred two revision applications before the High Court. The State of Gujarat also preferred separate revision applications before the High Court. The High Court allowed the revision petitions and directed examination of the three witnesses sought to be summoned. Being aggrieved the appellant has filed these appeals after obtaining special leave against the decision of the High Court, in the revision applications filed by the Union of India. No appeal has been filed against the order passed by the High Court in the revision applications filed before it, by the State of Gujarat. The main contention of the appellant is that the High Court erred in allowing the second revision application in view of the provisions of section 397(3) of the new Code thus permitting the prosecution to fill up the lacuna and plug the loopholes in its case which is prejudicial to the appellant. 713 Dismissing the appeals, this Court, HELD: Though Section 540 (Section 311 of the new Code) is, in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the court should be exercised, or with regard to the manner in which they should be exercised, that power is circumscribed by the principle that underlines section 540, namely, evidence to be obtained should appear to the court essential to a just decision of the case by getting at the truth by all lawful means. The aid of the section should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judicially and not capricicously or arbitrarily. Due care should be taken by the court while exercising power under this section and it must not be used for filling up the lacuna left by the prosecution or by the defence or to the disadvantage of the accused or to cause serious prejudice to the defence of the accused or to give an unfair advantage to the rival side and further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties. [721B-E] Whenever any additional evidence is examined or fresh evidence is admitted against the accused, it is absolutely necessary in the interests of justice that the accused should be afforded a fair and reasonable opportunity to rebut that evidence brought on record against him. [725E] The Criminal court has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed and the jurisdiction of the court and must obviously be dictated by exigency of the situation, and fair-play and good sense appear to be the only safe guides and that only the requirements of justice command the examination of any person which would depend on the facts and circumstances of each case. [724C-D] The facts and circumstances of the case require the examination of these three witnesses for a just decision of the case as held by the High Court. [726G] Jamatraj Kewalji Govni v. State of Maharashtra, [1967] 3 SCR 415; Rameshwar Dayal v. State of U.P., [1978] 2 SCC 518; State of West Bengal v. Tulsidas Mundhra, [1963] 2 S.C.J. 204 at 207; Masalti v. State of U.P., AIR 1965 S.C.202; Rajeshwar Prasad Misra v. State of West Bengal and Anr., [1966] 2 S.C.R. 178; R.B. Mithani v. 714 Maharashtra, AIR 1971 S.C. 1630; Channu Lal v. R., AIR 1949 All 692; Rengaswami Naicker v. Muruga Naicker, AIR 1954 Mad 169; Shugan Chand v. Emperor, AIR 1925 Lah 531 and The Queen v. Assanoolah, 13 SWR (Crl.) 15, referred to. Mir Mohd. Omar and Others v. State of West Bengal, [1989] 4 SCC 436, distinguished. JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos. 4 & 5 of 1979. From the Judgment and Order dated 21.3.1978 of the Gujarat High Court in Criminal Revision Application Nos. 98 and 97 of 1978. S.K. Kulkarani and P.C. Kapur (NP) for the Appellant. Arun Jetley, Additional Solicitor General, Ms. Indu Malhotra, M.N. Shroff, P. Parmeshwaran, Ms. A. Subhashini, Ms. Ayesha Karim and P.K. Mullick for the Respondents. The Judgment of the Court was delivered by S. RATNAVEL PANDIAN J. These criminal appeals by special leave granted under Article 136 of the Constitution of India are preferred by the appellant questioning the correctness of the judgment of the Gujarat High Court in Criminal Revision Application Nos. 98 and 97 of 1978 whereby the High Court set aside the judgment and orders dated 2.1.1978 of the Sessions Judge, Kutch at Bhuj made in Criminal Revision Application Nos. 46 and 45 of 1976 confirming the orders dated 19.6.76 passed by the Judicial Magistrate, First Class, Kutch in Application Exh. Nos. 94 and 98 in Criminal Case Nos. 929 and 930 of 1973 respectively. The factual matrix that have relevance to the questions, raised and canvassed at the hearing may be briefly stated. A raid conducted by the officers of the Customs Department in the business-cum-residential premises of the appellant on 17.9.1971 resulted in the seizure of some gold Lagadis bearing foreign marks, primary gold, gold ornaments and silver bricks, coins etc. to the value of about Rs.8,48,422. During the said raid a sum of Rs.79,000 was also seized. In respect of this incident, the Assistant Collector of Customs filed two separate complaints on 26.11.1973 against the appellant in the court of the Judicial Magistrage, First Class, Anjar, being criminal cases Nos. 929 and 930 of 1973 for offences punishable (1) under the provisions of the Customs Act 1962 and (2) under the Gold Control Act 1968. After examination of the prosecution as well as the defence witnesses and recording of the statements of the appellants under Section 342 of the old Code of Criminal Procedure (hereinafter referred to as the Code') arguments were advanced on behalf of the appellant/accused. The prosecution at this stage before commencing its arguments filed two applications both the cases under Section 540 of the old Code (corresponding to Section 311 of the new Code) requesting the Trial Court to recall Mr. Mirchandani (the Seizing Officer) for further examination and to issue summons to two more witnesses, namely, Mr. K.K. Das, Assistant Collector of Customs and the Deputy Chief Officer (Assayer) of Mint Master, Bombay for examination either as prosecution witnesses or as court witnesses as cotemplated under the said provision. The learned Judicial Magistrate passed two orders rejecting the applications which orders, on revision by the respondents were confirmed by the session's Judge on being aggrieved by the said revisional orders, the Union of India (the first respondent herein) preferred two Criminal Revision Applications Nos. 97 and 98 of 1978. The second respondent, namely, the State of Gujarat also preferred two other Criminal Revision Application Nos. 124 and 125 of 1978. The High Court by its Common Judgment, though heavily criticised the conduct of the prosecution for its deplorable and lethargic attitude in not carefully and promptly conducting the proceedings allowed all the Criminal Revisions for the reasons assigned therein holding thus: \"In view of what has been stated above, I accept the four petitions filed in this court by the Union of India, and the State of Gujarat, and direct the Union of India to examine the aforesaid three witnesses within a period of fortnight after the receipt of the order of this court to the trial court. After the Union of India examines the aforesaid three witnesses as aforesaid, it will be open to the accused to cross-examine all the witnesses examined by the Union of India before the learned Magistrate. Feeling aggrieved by the judgment of the High Court, these two appeals are preferred by the appellant. In this context, it is pertinent to note that the appellant has not directed any appeal against the judgment of the High Court in allowing the two other Revision Application Nos. 124 and 126 of 1978 filed by the Gujarat Government which were also allowed by the High Court. The learned counsel appearing on behalf of the appellant vigorously challenged the legality of the impugned judgment inter-alia contending that the High Court has gravely erred in allowing the second revision petitions filed by the respondent by ignorning the weighty reasons given by the Trial Magistrate and the Section Judge (before whom the first revision was filed) and thereby in permitting the respondent-the Union of India-to examine the three witnesses as prayed by it, notwithstanding that the case was pending before the Trial Court for considerable length of time and the defence argument was concluded and that the High Court, by the impugned order has permitted the prosecution to bolster up its case by filling up the lacuna and plugging the loopholes which if carried out would be detrimental and prejudicial to the appellant. The next legal submission made on behalf of the appellant is that the entertainment of the second revision by the High Court is in violation of sub-sections (2) and (3) of Section 397 of the new Code since the order passed by the Magistrate was an interlocutory order and that even assuming that it was not so, the second revision by the same affected party is not entertainable. Before adverting to the arguments advanced on behalf of the appellant, we would examine in general the scope and intent of Section 540 of the old Code (corresponding to Section 311 of the new Code). Section 540 was found in Chapter XLVI of the old Code of 1898 under the heading \"Miscellaneous'. But the present corresponding Sections 311 of the new Code is found among other Sections in Chapter XXIV under the heading 'General Provisions as to Enquiries and Trials'. Section 311 is an almost verbatim reproduction of Section 540 of the old Code except for the insertion of the words 'to be' before the word 'essential' occurring in the old Section. This section is manifestly in two parts. Whereas the word 'used' in the first part is 'may' the word used in the second part is 'shall'. In consequence, the first part which is permissive gives purely discretionary authority to the Criminal Code and enables it 'at any stage of enquiry' trial or other proceedings' under the Code to act in one of the three ways, namely, (1) to summon any person as a witness or (2) to examine any person in attendance, though not summoned as a witness, or (3) to recall and re-examine any person already examined. The second part which is mandatory imposes an obligation on the Court- (1) to summon and examine, or (2) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case. The very usage of the words such as 'any court', 'at any stage', or 'of any enquiry, trial or other proceedings', 'any person' and 'any such person' clearly spells out that this section is expressed in the widest possible terms and do not limit the discretion of the Court in any way. However, the very width requires a corresponding caution that the discretionary power should be invoked as the exigencies of justice require and exercised judically with circumpection and consistently with the provisions of the Code. The second part of the Section does not allow for any discretion but it binds and compels the Court to take any of the aforementioned two steps if the fresh evidence to be obtained is essential to the just decision of the case. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and the Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their sides. Nonetheless if either of the parties with-holds any evidence which could be produced and which, if produced, be unfavorable to the party withholding such evidence, the court can draw a presumption under illustration (g) to Section 114 of the Evidence Act. In such a situation a question that arises for consideration is whether the presiding officer of a Court should simply sit as a mere umpire at a contest between two parties and declare at the end of combat who has won and who has lost or is there not any legal duty of his own, independent of the parties, to take an active role in the proceedings in finding the truth and administering justice? It is a well accepted and settled principle that a Court must discharge its statutory functions-whether discretionary or obligatory-according to law in dispensing justice because it is the duty of a Court not only to do justice but also to ensure that justice is being done. In order to enable the Court to find out the truth and render a just decision, the salutary provisions of Section 540 of the Code (Section 311 of the New Code) are enacted whereunder any Court by exercising its discretionary authority at any stage of enquiry, trial or other proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined who are expected to be able to throw light upon the matter in dispute; because if judgments happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated. There are various other provisions in the new Code corresponding to the provision of the old Code empowering the court specified therein to recall any witness or witnesses already examined or summon any witness, if it is felt necessary in the interest of justice at various stages mentioned in the concerned specific provisions. A Judge under Section 236 (Section 310 old Code) or a Magistrate under Section 248(3) (Section 251-A(13) and 255-A old Code) is empowered to take evidence in respect of the previous convictions of the accused person concerned if he is charged with the previous conviction under sub-section (7) of Section 211 and if he does not admit the previous conviction. Under Section 367 (Section 375 old Code) if, when sentence of death passed by the Court of Sessions is submitted for confirmation to the High Court under Section 366(1) (Section 374 of the old Code), the High Court thinks that a further enquiry should be made into or additional evidence taken upon, any point bearing upon the guilt or innocence of the convicted person, it may make such inquiry or take such evidence itself or direct it to be made or taken by the Court of Session. Under Section 391 (Section 428 of old Code) the Appellate Court while dealing with any appeal under Chapter XXIX, if thinks additional evidence to be necessary, may after recording its reasons either take such evidence itself or direct it to be taken by a subordinate Court as the case may be. Under Section 463(2) (Section 533 old Code) if any Court of Appeal, Reference and Revision before which confession or other statement of an accused recorded or purporting to be recorded under Section 164 or Section 281 (Section 364 of the old Code) is tendered, or has been received in evidence, finds that any of the provisions of either such sections have not been complied with by the Magistrate recording the statement, the Court may notwithstanding anything contained in Section 91 of the Indian Evidence Act take evidence in regard to such non- compliance and may, if satisfied that such non-compliance has not injured the accused in his defence on the merits and that he duly made the statement recorded, admit such evidence. Analogous to the above provisions of the Code of Criminal Procedure there are various provisions in the civil Procedure Code also enabling the civil Court to summon witnesses and examine them in the interest of justice. Under Order X Rule 2 of the Civil Procedure Code, the Court at the first hearing of the suit or at any subsequent hearing may examine any party appearing in person or present in Court or any person able to answer any material questions relating to the suit by whom such party or his pleader is accompanied. Under Order X Rule 14 the Court may of its own motion summon as a witness any person including the party to the suit for examination and the said Rule is under the caption \"Court may of its own accord summon as witnesses strangers to suit\" and Order XVIII Rule 17 empowers the Court to recall any witness who has been examined and may subject to Law of Evidence for the time being in force put such questions to him as it thinks fit. The powers of the Court under this Rule 17 are discretionary and very wide. Besides the above specific provisions under the Cr. P.C. and C.P.C. empowering the criminal and civil courts as the case may be, to summon and examine witnesses, a Judge in order to discover or to obtain proof of relevant facts is empowered under Section 165 of the Indian Evidence Act to exercise all the privileges and powers subject to the proviso to that section which power he has under the Evidence Act. Section 540 of the old Code (Section 311 of the new Code) and Section 165 of the Evidence Act may be said to be complementary to each other and as observed by this Court in Jamatraj Kewalji Govani v. State of Maharashtra, [1967] 3 SCR 415 \"these two sections between them confer jurisdiction on the Judge to act in aid of justice.\" The second part of Section 540 as pointed out albeit imposes upon the Court an obligation of summoning or recalling and re-examining any witness and the only condition prescribed is that the evidence sought to be obtained must be essential to the just decision of the case. Though any party to the proceedings points out the desirability some evidence being taken, then the Court has to exercise its power under this provision-either discetionary or mandatory-depending on the facts and circumstances of each case, having in view that the most paramount principle underlying this provision is to discover or to obtain proper proof of relevant facts in order to meet the requirements of justice. In this connection we would like to quote with approval the following views of Lumpkin, J. in Epps v. S., 19 Ga, 118 (Am), which reads thus: \"............it is not only the right but the duty of the presiding judge to call the attention of the witness to it, whether it makes for or against the prosecution; his aim being neither to punish the innocent nor screen the guilty, but to administer the law correctly ................................. ................................................... Counsel seek only for their client's success; but the judge must watch that justice triumphs.\" The law is clearly expounded in the case of Jamatraj Kewalji Govani (referred to above) wherein Hidayatullah, J as he then was, while speaking for the Bench about the unfettered discretionary power of the court as envisaged under Section 540 of the Code has stated thus: \"It is difficult to limit the power under our Code to cases which involve something arising ex- improviso which no human ingenuity could foresee, in the course of the defence. Our Code does not make this a condition of the exercise of the power and it is not right to embark on judicial legislation. Cases that go far are of course not quite right. Indeed they could be decided on fact because it can always be seen whether the new matter is strictly necessary for a just decision and not intended to give an unfair advantage to one of the rival sides ................................ ................................................... ................................................... It would appear that in our criminal jurisdiction, statutory law confers a power in absolute terms to be exercised at any stage of the trial to summon a witness or examine one present in court or to recall a witness already examined, and makes this the duty and obligation of the Court provided the just decision of the case demands it. In other words, where the court exercises the power under the second part, the inquiry cannot be whether the accused has brought anything suddenly or unexpectedly but whether the court is right in thinking that the new evidence is needed by it for a just decision of the case. If the court has acted without the requirements of a just decision, the action is open to criticism but if the court's action is supportable as being in aid of a just decision the action cannot be regarded as exceeding the jurisdiction.\" The next important question is whether Section 540 gives the court carte-blanche drawing no underlying principle in the exercise of the extra-ordinary power and whether the said Section is unguided, uncontrolled and uncanalised. Though Section 540 (Section 311 of the new Code) is, in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the court should be exercised, or with regard to the manner in which they should be exercised, that power is circumscribed by the principle that underlines Section 540, namely, evidence to be obtained should appear to the court essential to a just decision of the case by getting at the truth by all lawful means. Therefore, it should be borne in mind that the aid of the section should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. Further it is incumbent that due care should be taken by the court while exercising the power under this section and it should not be used for filling up the lacuna left by the prosecution or by the defence or to the disadvantage of the accused or the cause serious prejudice to the defence of the accused or to give an unfair advantage to the rival side and further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties. Fazal Ali, J in Rameshwar Dayal v. State of U.P., [1978] 2 SCC 518 while expressing his views about the careful exercise of its power by the court has stated: \"It is true that under Section 540 of the Criminal Procedure Code the High Court has got very wide powers to examine any witness it likes for the just decision of the case, but this power has to be exercised sparingly and only when the ends of justice so demand. The higher the power the more careful should be its exercise .................... The words, \"Just decision of the case\" would become meaningless and without any significance if a decision is to be arrived at without a sense of justice and fair play.\" In State of West Bengal v. Tulsidas Mundhra, [1963] 2 S.C.J. 204 at 207, it has observed: \"It would be noticed that this section confers on criminal Courts very wide powers. It is no doubt for the Court to consider whether its power under this section should be exercised or not. But if it is satisfied that the evidence of any person not examined or further evidence of any person already examined is essential to the just decision of the case, it is its duty to take such evidence. The exercise of the power conferred by section 540 is conditioned by the requirement that such exercise would be essential to the just decision of the case.\" At the risk of repetition it may be said that Section 540 allows the court to invoke its inherent power at any stage, as long as the court retains seisin of the criminal proceeding, without qualifying any limitation or prohibition. Needless to say that an enquiry or trial in a criminal proceeding comes to an end or reaches its finality when the order or judgment is pronounced and until then the court has power to use this section. The answer to the question like the one that has arisen in the present case is whether the court would be justified in exercising its power under Section 540 is found in Kewalji's case (albeit). In that case the appellant was prosecuted on two counts under Section 135(a) and (b) of the Customs Act. The appellant did not lead any evidence on his behalf but filed a written statement, claiming inter-alia that no offence had been disclosed against him, since no witness had deposed that the contraband had been seized from him under the Act in the reasonable belief that they were smuggled goods. The day after the statement was filed, the prosecution applied for examination of the customs officer who was incharge of the search as a court witness in the interest of justice. The Magistrate ordered the examination of the officer under Section 540 of the Code rejecting the objections raised by the appellant. Though an opportunity was given to the appellant to lead defence evidence, the appellant stated that he had nothing further to add and no evidence to lead. The Trial Court convicted the appellant who being aggrieved by the judgment of the Trial Court preferred an appeal to the High Court which dismissed the appeal. Before this Court it was contended that the evidence of the officer was improperly received. That contention has been repelled by this court observing \"This power is exercisable at any time and the Code of Criminal Procedure clearly so states\" and thereafter concluded \"it cannot be said that the Court had exceeded its jurisdiction in acting the second part of Section 540 of the Code of Criminal Procedure.\" Gajendragadkar, J. speaking for the Bench in Tulsidas Mundhra (cited supra) has pointed out as follows: \"Section 540 in terms applies at any stage of any enquiry, trial or other proceeding under this Code. This section is wide enough to include a proceeding under section 207-A and so, it would be unreasonable to contend that the scheme of section 207-A makes section 540 inapplicable to the proceeding governed by section 207-A. The power of the Court under section 540 can be exercised as much in regard to cases governed by section 207-A as in regard to other proceedings governed by the other relevant provisions of the Code.\" (It may be noted that section 207-A of the old Code in Chapter XVIII under the caption \"Enquiry into cases triable by the court of Session or the High Court\" dealt with the procedures to be adopted in proceedings instituted on police report and this provision is omitted in the new Code.) This Court in Kewalji's case (albeit) held that Chapter XXI of Cr. P.C. (old) under the heading \"Of the Trail of Warrant-cases by Magistrates\" does not restrict the powers of criminal court under Section 540. In Masalti v. State of U.P., AIR 1965 S.C. 202 wherein the defence did not opt to examine some witnesses who have been left out by the prosecution on the bona fide belief that those witnesses had been won over and the court also after due deliberation refused to exercise its power under Section 540; this Court while examining a submission that the Trial Court should have exercised its power under Section 540 and examined those witnesses expressed its opinion that \"that is one aspect of the matter which we have to take into account\"-that is in considering whether the accused were prejudiced or not. It has been held by this Court in Rajeswar Prasad Mora v. State of West Bengal & Anr.,[1966] 1 SCR 178 while dealing with the ample power and jurisdiction of the court in taking additional evidence as follows: \"Additional evidence may be necessary for a variety of reasons which it is hardly necessary (even if it was possible) to list here. We do not propose to do what the Legislature has refrained from doing, namely, to control discretion of the appellate Court to certain stated circumstances. It may, however, be said that additional evidence must be necessary not because it would be impossible to pronounce judgment but because there would be failure of justice without it. The power must be exercised sparingly and only in suitable cases. Once such action is justified, there is no restriction on the kind of evidence which may be received. It may be formal or substantial.\" The above view has been reiterated in R.B. Mithani v. Maharashtra, AIR 1971 S.C. 1630. The principle of law that emerges from the views expressed by this court in the above decisions is that the Criminal Court has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed and the jurisdiction of the court must obviously be dictated by exigency of the situation, and fair-play and good sense appear to be the only safe guides and that only the requirements of justice command and examination of any person which would depend on the facts and circumstances of each case. What falls for determination now is whether the person indicated should be given an opportunity to rebut the evidence of the witness or witnesses summoned and examined under Section 540. This question came for determination in Rameshwar Dayal's case and this court answered that question thus: \"It was argued by counsel for the State that there is no provision in the Criminal Procedure Code which requires the court to allow the appellant an opportunity to rebut the evidence of witnesses recommended under Section 540 Cr. P.C. This argument, in our opinion, is based on a serious misconception of the correct approach to the cardinal principles of criminal justice. Section 540 itself incorporates a rule of natural justice. The accused is presumed to be innocent until he is proved guilty. It is, therefore, manifest that where any fresh evidence is admitted against the accused the presumption of innocence is weakened and the accused in all fairness should be given an opportunity to rebut that evidence. The right to adduce evidence in rebuttal is one of the inevitable steps in the defence of a case by the accused and a refusal of the same amounts not only to an infraction of the provisions of the Criminal Procedure Code but also of the principles of natural justice and offends the famous maxim audi alteram partem ............................... ................................................... A careful perusal of this provision manifestly reveals that the statute has armed the Court with all the powers to do full justice between the parties as full justice cannot be done until both the parties are properly heard the condition of giving an opportunity to the accused to rebut any fresh evidence sought to be adduced against him either at the trial or the appellate stage appears to us to be implicit under Section 540 of the Cr. P.C.\" See also Kewalji's case (cited above). This was the view taken by various High Court such as in Channu Lal v. R., AIR 1949 All. 692; Rengaswami Naicker v. Muruga Naicker, AIR 1954 Mad. 169; Shugan Chand v. Emperor, AIR 1925 Lah 531 and The Queen v. Assanoolah, 13 SWR (Crl.) 15. The views expressed in the above judgments of the various High Courts have been approved by this Court in Rameshwar Dayal's case. We are in full agreement with the above view of Fazal Ali, J and hold that whenever any additional evidence is examined or fresh evidence is admitted against the accused, it is absolutely necessary in the interest of justice that the accused should be afforded a fair and reasonable opportunity to rebut that evidence brought on record against him. With this legal background let us now turn to the challenge posed by the appellant in these appeals. The Trial Court and the First Revision Court rejected the request of the prosecution on three grounds, namely, first that the prosecution has attempted to fabricate evidence at a belated stage to fill up the lacuna in the prosecution case and secondly that the request of the prosecution for taking additional evidence was after the closure of the defence and thirdly a substantial prejudice would be caused to the appellant if the prosecution is allowed to adduce fresh evidence. As pointed out by the High Court in its impugned order, gold, silver ornaments of the value of Rs.8,48,482 and currency notes of Rs.79,000 have been seized from the premises, searched on the strength of the search warrant issued by Shri K.K. Das. What the appellant now contends is that the order of the High Court permitting the prosecution to recall one of the witnesses already examined and to summon two other new witnesses to prove the foreign makings on the legadis is in violation of the principle underlying Section 540. We waded through the entire records inclusive of the copies of depositions, search warrant and the application filed by the prosecution under Section 540 which are available in the file, forwarded by the High Court though those documents are not annexed with the SLP. The prosecution filed the petition for examination of the three witnesses stating that foreign ingots (lagadis) have been sized from the possession of the appellant and that warrant for search of the premises of the appellant/accused was issued in this regard by the Assistant Collector of Customs, namely Shri K.K. Das and hence fresh evidence is necessary for a just decision of the case. After perusing the depositions of the witnesses already examined that are found on the file, we think that the appellant/accused cannot be said to be prejudiced in any way by examination of these three witnesses. PW-2 who was then working as Superintendent of Customs in the office of the Assistant Collector of Customs at Adipur during the relevant period has stated that Shri K.K. Das who was the then Assistant Collector of Customs issued the warrant dated 7.9.1971 authorising Shri Mirchandani, Superintendent of Customs, Adipur to search for the prohibited and dutiable goods and documents in the premises mentioned in the warrant. It is elicited from the same witness in the cross examination that the gold ornaments were seized since the sizing authority doubted that they are smuggled gold and procured by contriving the Gold Control Act. It is seen from the evidence of PW-3 that he and others inclusive of Superintendent Mirchandani went to the house of the appellant and they seized the gold ornaments Dhalia, that is, primary gold under Panchnama and search list Exts. 24 and 25. Therefore, the appellant's grievance that he has been taken by surprise on the request of the prosecution for taking fresh evidence; that the evidence sought to be obtained is only for filling up the lacuna and the judgment, impugned is prejudicial to him cannot be countenanced. Of the three witnesses, permitted to be summoned and examined on the side of the Union of India, the Mint Master is only an assayer. In our considered opinion, the facts and circumstances of the case require the examination of these three witnesses for a just decision of the case as held by the High Court. In the light of the proposition of law which we have derived in the preceding portion of the judgment there is no illegality in summoning the witnesses after the closure of the defence arguments. It is seen from the order of the Trial Court that the argument of the prosecution has not yet begun. Since we feel that any further observation of ours in justification of this order may prejudice the defence of the appellant before the Trial Court, we are not inclined to discuss the evidence any further. A decision of this Court in Mir Mohd. Omar and Other v. State of West Bengal, [1989] 4 SCC 436 was relied upon to show that after the examination of the accused under Section 313 of the new Code (corresponding to Section 342 of the old Code) the prosecution should not move the Trial Judge for recalling a witness already examined, but the observation made in that decision has no application to the present case because in that case the said observation was made in a different context by this court while examining the plea of the prosecution in making corrections of the evidence already recorded under Section 272 of the Code and that decision does not deal with the ambit of Section 540 of the Code. The other contention raised on behalf of the appellant is that the order of the Magistrate rejecting the application of the prosecution under Section 540 is not a revisable order under Section 397(1) as it being an interlocutory order and even if it is not so, the second revision by the same party-i.e. Union of India is not entertainable in view of the statutory bar under Section 397(3) of the new Code as the Union of India has already availed the revision under Section 397(2) before the Session Judge. We may straightaway reject this plea on the simple ground that the prosecution in the present case was launched under the old Code and as such the only provision of the old Code have to be applied as per Section 484 of the new Code. The fervent plea of the appellant is though the prosecution was instituted under the old Code he should not be denied the benefit and advantage of Section 397(2) and (3) of the new Code. We are afraid that we could accede to this inexorable request of the appellant for two reasons, namely, that the appellant has not challenged the maintainability of the second revision, filed and heard after the commencement of the new Code before the High Court, claiming advantage of Section 397(3) of the new Code and secondly he participated in the revision proceedings throughout under the old Code. Having failed in the revision he has no justification to raise this point before this Court, especially when the proceedings under the old Code are saved by Section 484 of the new Code. As far as the question whether an order under Section 540 of the old Code is an inerlocutory order or a final order, need not be gone into as that question does not arise in these proceedings. We would like to point out before parting with this judgment that though the High Court by its impugned judgment directed the Union of India to examine the three witnesses, in fact it has allowed all the four revision applications inclusive of the revision application Nos. 124 and 125 of 1978 filed by the State of Gujarat seeking the same prayer as that of the Union of India. The appellant as we have pointed out in the prefatory portion of this judgment that that part of the judgment of the High Court allowing the two revisions filed by the State Government remains unchallenged. Further we would like to point out that the High Court in its concluding paragraph of its judgment instead of using the words \"I ...... direct\" ought to have used the word \"I ..... permit\". For all the reasons stated above we hold that the judgment of the High Court does not suffer from any illegality or perversity calling for an interference at the hands of this Court and as such the appeals are liable to be dismissed as devoid of any merit. However, we direct the Trial Court to afford a fair opportunity to the appellant/accused to cross-examine the witnesses sought to be examined by the Union of India and also to lead rebuttal evidence if the appellant so desires. Accordingly these two appeals are dismissed. Y.L. Appeals dismissed.",
        "661155": "CASE NO.: Writ Petition (crl.) 169 of 1999 Writ Petition (crl.) 243 of 1999 PETITIONER: DADU @ TULSIDAS Vs. RESPONDENT: STATE OF MAHARASHTRA DATE OF JUDGMENT: 12/10/2000 BENCH: K.T.Thomas, R.P. Sethi & S.N. Variava. JUDGMENT: SETHI, J: L...I...T.......T.......T.......T.......T.......T.......T..J The Constitutional validity of Section 32A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as \"the Act\") is under challenge in these petitions filed by the convicts of the offences under the Act. The Section is alleged to be arbitrary, discriminatory and violative of Articles 14 and 21 of the Constitution of India which creates unreasonable distinction between the prisoners convicted under the Act and the prisoners convicted for the offences punishable under various other statutes. It is submitted that the Legislature is not competent to take away, by statutory prohibition, the judicial function of the Court in the matter of deciding as to whether after the conviction under the Act the sentence can be suspended or not. The Section is further assailed on the ground that it has negated the statutory provisions of Sections 389, 432 and 433 of the Code of Criminal Procedure (hereinafter referred to as \"the Code\") in the matter of deciding as to whether after the conviction under the Act the sentence can be suspended, remitted or commuted or not and also under what circumstances, restrictions or limitations on the suspension of sentences or the grant of bail could be passed. It is further contended that the Legislature cannot make relevant considerations irrelevant or deprive the courts of their legitimate jurisdiction to exercise the discretion. It is argued that taking away the judicial power of the appellate court to suspend the sentence despite the appeal meriting admission, renders the substantive right of appeal illusory and ineffective. According to one of the petitioners, the prohibition of suspension precludes the Executive from granting parole to a convict who is otherwise entitled to it under the prevalent statutes, jail manual or Government instructions issued in that behalf. The petitioner in W.P.No.169/99 was arrested and upon conviction under Section 21 of the Act sentenced to [email protected]@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ imprisonment for 10 years. He claims to have [email protected]@ JJJJJJJJJJJJJJJJJJJJJ undergone sentence for more than 7 years. He could not claim parole presumably under the impression that Section 32A of the act was a bar for the State to grant it. Though the petitioner has referred to Maharashtra Jail Manual, particularly Chapter XXXVIII providing various kinds of remissions and authorising the grant of parole yet nothing is on the record to show as to whether he in fact applied for parole or not. Petitioner in W.P.243 of 1999, after trial was convicted under the Act and the bail application filed by him alongwith appeal presented in the High Court was dismissed as not pressed in view of the judgment of this Court in Maktool Singh v. State of Punjab [JT 1999 (2) SC 176]. The vires of the section have been defended by the Union of India on the ground that as the Parliament has jurisdiction to enact the law pertaining to Narcotic Drugs and Psychotropic Substances Act, reasonable restrictions can be imposed upon the right of the convict to file appeal and seek release, remission or commutation. The Act is intended to curb the drug addiction and trafficking which is termed to be eating into the vitals of the economy of the country. The illicit money generated by drug trafficking is being used for illicit activities including encouragement of terrorism. Anti-drug justice has been claimed to be a criminal dimension of social justice. It is submitted that statutory control over narcotic drugs in India was being generally exercised through certain Central enactments, though some of the States had also enacted certain statutes to deal with illicit traffic in drugs. Reference is made to the Opium Act and the Dangerous Drugs Act etc. In the absence of comprehensive law to effectively control psychotropic substances in the manner envisaged by the International Convention of Psychotropic Substances, 1971, a necessity was felt to enact some comprehensive legislation on the subject. With a view to meet the social challenge of great dimensions, the Parliament enacted the Act to consolidate and amend the existing provisions relating to control over drug abuse and to provide for enhanced penalties under the Act. The Act provides enhanced and stringent penalties. The offending section is claimed to be not violative of Articles 14, 19 and 21 of the Constitution of India. To fulfil the international obligations and to achieve the objectives of curbing the menace of illegal trafficking, the Section was enacted not only to take away the power of the Executive under Section 433 of the Code but also the power under the Code to suspend, remit or commute the sentences passed under the Act. The convicts under the Act are stated to be a class in themselves justifying the discrimination without offending guarantee of equality enshrined in the Constitution. To support the Constitutional validity of the Section, the respondents have also relied upon the Lok Sabha debates on the subject. Before dealing with the main issue regarding the validity of Section 32A, a side issue, projected in Writ Petition No.169, is required to be dealt with. The writ petition appears to be based upon the misconception of the provisions of law and in ignorance to the various pronouncements of this Court. Parole is not a suspension of the sentence. The convict continues to be serving the sentence despite granting of parole under the Statute, Rules, Jail Manual or the Government orders. \"Parole\" means the release of a prisoner temporarily for a special purpose before the expiry of a sentence, on the promise of good behaviour and return to jail. It is a release from jail, prison or other internment after actually been in jail serving part of sentence. Grant of parole is essentially an Executive function to be exercised within the limits prescribed in that behalf. It would not be open to the court to reduce the period of detention by admitting a detenue or convict on parole. Court cannot substitute the period of detention either by abridging or enlarging it. Dealing with the concept of parole and its effect on period of detention in a preventive detention matter, this Court in Poonam Lata v. M.L. Wadhawan [1987 (3) SCC 347] held: \"There is no denying of the fact that preventive detention is not punishment and the concept of serving out a sentence would not legitimately be within the purview of preventive detention. The grant of parole is essentially an executive function and instances of release of detenus on parole were literally unknown until this Court and some of the High Courts in India in recent years made orders of release on parole on humanitarian considerations. Historically 'parole' is a concept known to military law and denotes release of a prisoner of war on promise to return. Parole has become an integral part of the English and American systems of criminal justice intertwined with the evolution of changing attitudes of the society towards crime and criminals. As a consequence of the introduction of parole into the penal system, all fixed-term sentences of imprisonment of above 18 months are subject to release on licence, that is, parole after a third of the period of sentence has been served. In those countries, parole is taken as an act of grace and not as a matter of right and the convict prisoner may be released on condition that he abides by the promise. It is a provisional release from confinement but is deemed to be a part of the imprisonment. Release on parole is a wing of the reformative process and is expected to provide opportunity to the prisoner to transform himself into a useful citizen. Parole is thus a grant of partial liberty of lessening of restrictions to a convict prisoner, but release on parole does not change the status of the prisoner. Rules are framed providing supervision by parole authorities of the convicts released on parole and in case of failure to perform the promise, the convict released on parole is directed to surrender to custody. (See The Oxford Companion to Law, edited by Walker, 1980 Edn. p.931; Black's Law Dictionary, 5th Edn., P.1006; Jowitt's Dictionary of English Law, 2nd Edn., Vol. 2, p.1320; Kenny's Outlines of Criminal Law; 17th Edn., pp.574- 76; the English Sentencing System by Sir Rupert Cross at pp.31-34; 87 et seq; American Jurisprudence, 2nd Edn., Vol.59, pp.53-61; Corpus Juris Secundum, Vol.67; Probation and Parole, Legal and Social Dimensions by Louis P. Carney). It follows from these authorities that parole is the release of a very long terms prisoner from a penal or correctional institution after he has served a part of his sentence under the continuous custody of the State and under conditions that permit his incarceration in the event of misbehaviour\". This position was again reiterated in State of Haryana v. Mohinder Singh [2000 (3) SCC 394][email protected]@ JJJJJJJJJJJJJJJJJJJJJJJJJ The Constitution Bench of this Court in Sunil Fulchand Shah v. Union of India & Ors. [2000 (3) SCC 409]@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ considered the distinction between bail and parole in [email protected]@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJ context of reckoning the period which a detenu has to undergo in prison and held: \"Bail and parole have different connotation in law. Bail is well understood in criminal jurisprudence and Chapter XXXIII of the Code of Criminal Procedure contains elaborate provisions relating to grant of bail. Bail is granted to a person who has been arrested in a non-bailable offence or has been convicted of an offence after trial. The effect of granting bail is to release the accused from internment though the court would still retain constructive control over him through the sureties. In case the accused is released on his own bond such constructive control could still be exercised through the conditions of the bond secured from him. The literal meaning of the word 'bail' is surety. In Halsbury's Laws of England, 4th Edn., Vol.11, Para 166, the following observation succinctly brings out the effect of bail: The effect of granting bail is not to set the defendant (accused) at liberty but to release him from the custody of law and to entrust him to the custody of sureties who are bound to produce him to appear at his trial at a specified time and place. The sureties may seize their principal at any time and may discharge themselves by handing him over to the custody of law and he will then be imprisoned. 'Parole', however, has a different connotation than bail even though the substantial legal effect of both bail and parole may be the release of a person from detention or custody. The dictionary meaning of \"parole\" is: The Concise Oxford Dictionary - (New Edition) \"The release of a prisoner temporarily for a special purpose or completely before the expiry of a sentence, on the promise of good behaviour; such a promise; a word of honour\" Black's Law Dictionary - (6th Edition) \"Release from jail, prison or other confinement after actually serving part of sentence. Conditional release from imprisonment which entitles parolee to serve remainder of his term outside confides of an institution, if he satisfactorily complies with all terms and conditions provided in parole order.\" According to the Law Lexicon, \"Parole\" has been defined as: \"A parole is a form of conditional pardon, by which the convict is released before the expiration of his term, to remain subject, during the remainder thereof, to supervision by the public authority and to return to imprisonment on violation of the condition of the parole.\" According to Words and Phrases: \"Parole\" ameliorates punishment by permitting convict to serve sentence outside of prison walls, but parole does not interrupt sentence. People ex rel Rainone v. Murphy [135 NE 2d 567, 571, 1 NY 2d 367, 153 NYS 2d 21, 26]. 'Parole does not vacate sentence imposed, but is merely a conditional suspension of sentence. Wooden v. Goheen [Ky, 255 SW 2d 1000, 1002]. A 'parole' is not a 'suspension of sentence', but is a substitution, during continuance of parole, of lower grade of punishment by confinement in legal custody and under control of warden within specified prison bounds outside the prison, for confinement within the prison adjudged by the court. Jenkins v. Madigan [CA Ind, 211 F 2d 904, 906]. A 'parole' does not suspend or curtail the sentence originally imposed by the court as contrasted with a 'commutation of sentence' which actually modifies it\". Again in State of Haryana v. Nauratta Singh & Ors. [2000 (3) SCC 514] it was held by this Court as under:@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ \"Parole relates to executive action taken after the door has been closed on a convict. During parole period there is no suspension of sentence but the sentence is actually continuing to run during that period also.\" It is thus clear that parole did not amount to the suspension, remission or commutation of sentences which could be withheld under the garb of Section 32A of the Act. Notwithstanding the provisions of the offending Section, a convict is entitled to parole, subject, however, to the conditions governing the grant of it under the statute, if any, or the Jail Manual or the Government Instructions. The Writ Petition No.169 of 1999 apparently appears to be misconceived and filed in a hurry without approaching the appropriate authority for the grant of relief in accordance with jail manual applicable in the matter. We will now deal with the crux of the matter relating to the constitutional validity of Section 32A in the light of the challenge thrown to it. Section 32A of the Act reads: \"32A. No suspension, remission or commutation in any sentence awarded under this Act.- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any other law for the time being in force but subject to the provisions of section 33, no sentence awarded under this Act (other than section 27) shall be suspended or remitted or commuted.\" A perusal of the Section would indicate that it deals with three different matters, namely, suspension, remission and commutation of the sentences. Prohibition contained in the Section is referable to Sections 389, 432 and 433 of the Code. Section 432 of the Code provides that when any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without conditions or upon conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced in the manner and according to the procedure prescribed therein. Section 433 empowers the appropriate Government to commute: \"(a) a sentence of death, for any other punishment provided by the Indian Penal Code; (b) a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine; (c) a sentence of rigorous imprisonment, for simple imprisonment for any term to which that person might have been sentenced, or for fine; (d) a sentence of simple imprisonment, for fine.\" However, Section 389 of the Code empowers an appellate court to suspend the sentence pending the appeal and [email protected]@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ the appellant on bail. Section 32A of the Act, therefore,@@ JJJJJJJJJJJJJJJJJ takes away the powers both of the Appellate Court and the State Executive in the matter of suspending, remitting and commuting the sentence of a person convicted under the Act other than for an offence under Section 27 of the Act. This Court in Maktool Singh's case (supra) held that Section 32A of the Act was a complete bar for the Appellate Court to suspend a sentence passed on persons convicted of offences under the Act (except under Section 27) either during the pendency of any appeal or otherwise. It has an overriding effect with regard to the powers of suspension, commutation and remission provided under the Code. After referring to some conflicting judgments of the High Courts, this Court concluded: \"The upshot of the above discussion is that Section 32A of the Act has taken away the powers of the court to suspend a sentence passed on persons convicted of offences under the Act (except Section 27) either during pendency of any appeal or otherwise. Similarly, the power of the Government under Sections 432, 433 and 434 of the Criminal Procedure Code have also been taken away. Section 32A would have an overriding effect with regard to the powers of suspension, commutation and remission provided under the Criminal Procedure Code.\" The restriction imposed under the offending Section, upon the Executive are claimed to be for a reasonable purpose and object sought to be achieved by the Act. Such exclusion cannot be held unconstitutional, on account of its not being absolute in view of the constitutional powers conferred upon the Executive. Articles 72 and 161 of the Constitution empowers President and the the Governor of a State to grant pardons, reprieves, respites or remissions of punishments or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the Executive power of the Union and State exists. For the exercise of aforesaid constitutional powers circulars are stated to have been issued by the appropriate Governments. It is further submitted that the circulars prescribe limitations both as regards the prisoners who are eligible and those who have been excluded. The restriction imposed upon the Executive, under the Section, appears to be for a reasonable purpose and object sought to be achieved by the Section. While moving the Amendment Bill, which included Section 32A, in the Parliament on 16th December, 1988, the Minister of State in Department of Revenue in the Ministry of Finance explained to the Parliament that the country had been facing the problem of transit traffic in illicit drugs which had been escalated in the recent past. The spill-over from such traffic had been causing problems of abuse and addiction. The Government was concerned with the developing drug situation for which a number of legislative, administrative and preventive measures had been taken resulting in checking the transit traffic to a considerable extent. However, increased internal drug traffic, diversion of opium from illicit growing areas and attempts of illicit manufacture of drugs within the country threatened to undermine the effects of the counter measures taken. Keeping in mind the magnitude of the threat from drug trafficking from the Golden Crescent region comprising Pakistan, Afghanistan and Iran and the Golden Triangle region comprising Burma, Thailand and Laos and having regard to the internal situation, a 14 point directive was stated to have been issued by the then Prime Minister on 4th April, 1988, as a new initiative to combat drug trafficking and drug abuse. Keeping in mind the working of the 1985 Act, the Cabinet Sub Committee recommended that the Act be suitably amended, inter alia, : \"(i) to provide for the constitution of a fund for control of drug abuse and its governing body. The Fund is to be financed by such amounts as may be provided by the Parliament, the sale proceeds of any property forfeited under the Act and any grants that may be made by any person or institution; (ii) to provide for death penalty on second conviction in respect of specified offences involving specified quantities of certain drugs; (iii) to provide that no sentence awarded under the Act, other than section 27, should be suspended, remitted or commuted; (iv) to provide for constitution of Special Courts; (v) to provide that every offence punishable under this Act shall be cognizable and non-bailable; (vi) to provide immunity from prosecution to the addicts volunteering for treatment for deaddiction or detoxification once in their life time; (vii) to bring certain substances which are neither narcotic drugs nor psychotropic substances but are used in the manufacture or production of these drugs or substances, under the ambit of the Act. Such controlled substances would be regulated by issue or order; (viii) violation of the provisions relating to the controlled substances would be liable for punishment with rigorous imprisonment for a term which may extend to 10 years and fine which may extend to Rs.1 lakh; (ix) financing illicit traffic and harbouring drug offenders would be offences liable to punishment at the same level as per drug traffic offences.\" The distinction of the convicts under the Act and under other statutes, in so far as it relaters to the exercise of the Executive Powers under Sections 432 and 433 of the Code is concerned, cannot be termed to either arbitrary or discriminatory being violative of Article 14 of the Constitution. Such deprivation of the Executive can also not be stretched to hold that the right to life of a person has been taken away except, according to the procedure established by law. It is not contended on behalf of the petitioners that the procedure prescribed under the Act for holding the trial is not reasonable, fair and just. The offending Section, in so far as it relates to the Executive in the matter of suspension, remission and commutation of sentence, after conviction, does not, in any way, encroach upon the personal liberty of the convict tried fairly and sentenced under the Act. The procedure prescribed for holding the trial under the Act cannot be termed to be arbitrary, whimsical or fanciful. There is, therefore, no vice of unconstitutionality in the Section in so far as it takes away the powers of the Executive conferred upon it under Sections 432 and 433 of the Code, to suspend, remit or commute the sentence of a convict under the Act. Learned counsel appearing for the parties were more concerned with the adverse effect of the Section on [email protected]@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ powers of the judiciary. Impliedly conceding that [email protected]@ JJJJJJJJJJJJJJJJJJJJJJJJJJJ Section was valid so far as it pertained to the appropriate Government, it was argued that the Legislature is not competent to take away the judicial powers of the Court by statutory prohibition as is shown to have been done vide the impugned section. Awarding sentence, upon conviction, is concededly a judicial function to be discharged by the courts of law established in the country. It is always a matter of judicial discretion, however, subject to any mandatory minimum sentence prescribed by the law. The award of sentence by a criminal court wherever made subject to the right of appeal cannot be interfered or intermeddled with in a way which amounts to not only interference but actually taking away the power of judicial review. Awarding the sentence and consideration of its legality or adequacy in appeal is essentially a judicial function embracing within its ambit the power to suspend the sentence under the peculiar circumstances of each case, pending the disposal of the appeal. Not providing atleast one right of appeal, would negate the due process of law in the matter of dispensation of criminal justice. There is no doubt that the right of appeal is the creature of a statute and when conferred, a substantive right. Providing a right of appeal but totally disarming the court from granting interim relief in the form of suspension of sentence would be unjust, unfair and violative of Article 21 of the Constitution particularly when no mechanism is provided for early disposal of the appeal. The pendency of criminal litigation and the experience in dealing with pending matters indicate no possibility of early hearing of the appeal and its disposal on merits atleast in many High Courts. As the present is not the occasion to dilate on the causes for such delay, we restrain ourselves from that exercise. In this view of the matter, the appellate powers of the court cannot be denuded by Executive or judicial process. This Court in Bhagwan Rama Shinde Gosai & Ors. v. State of Gujarat [AIR 1999 SC 1859 held that when a convicted person is sentenced to a fixed period of sentence and the appellate court finds that due to practical reasons the appeal cannot be disposed of expeditiously, it can pass appropriate orders for suspension of sentence. The suspension of the sentence by the appellate court has, however, to be within the parameters of the law prescribed by the Legislature or spelt out by the courts by judicial pronouncements. The exercise of judicial discretion on well recognised principles is the safest possible safeguards for the accused which is at the very core of criminal law administered in India. The Legislature cannot, therefore, make law to deprive the courts of their legitimate jurisdiction conferred under the procedure established by law. Thomas M. Cooley in his \"Treatise on the Constitutional Limitations\" 8th Edition observed that if the Legislature cannot thus indirectly control the action of the courts by requiring of them a construction of the law according to its own views, it is very plain it cannot do so directly, by setting aside their judgments, compelling them to grant new trials, ordering the discharge of offenders, or directing what particular steps shall be taken in the progress of a judicial inquiry. In Denny v. Mattoon[2 Allen, 361], it was stated: \"If, for example, the practical operation of a statute is to determine adversary suits pending between party and party, by substituting in place of the well settled rules of law the arbitrary will of the legislature, and thereby controlling the action of the tribunal before which the suits are pending, no one can doubt that it would be an unauthorised act of legislation, because it directly infringes on the peculiar and appropriate functions of the judiciary. It is exclusive province of courts of justice to apply established principles to cases within their jurisdiction, and to enforce their decisions by rendering judgments and executing them by suitable process. The legislature have no power to interfere with this jurisdiction in such manner as to change the decision of cases pending before courts, or to impair or set aside their judgments, or to take cases out of the settled course of judicial proceeding. It is on this principle that it has been held that the legislature have no power to grant a new trial or direct a rehearing of a cause which has been once judicially settled. The right of a review, or to try a new facts which have been determined by a verdict or decree, depends on fixed and well-settled principles, which it is the duty of the court to apply in the exercise of a sound judgment and discretion. These cannot be regulated or governed by legislative action\". Cooley further opined that forfeiture of rights and property cannot be adjudged by legislative act, confiscations without a judicial hearing after due notice would be void as not being due process of law. Rights of the parties, without the authority of passing consequential or interim orders in the interest of justice, would not be a substantive one. Offending Section is stated to have been enacted in discharge of the international obligations as claimed by the concerned Minister in the Parliament. This submission also appears to be without any substance. Countries, parties to the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988, in the 6th Plenary Meeting held on 19th December, 1988 resolved to adopt means and measures to curb the rising trend in the illicit production of demand for and traffic in narcotic drugs and psychotropic substances which posed a serious threat to the health and welfare of the human beings and adversely affected the economic, cultural and political foundations of the Society. The member countries, inter alia agreed to adopt such measures as may be necessary to establish as criminal offences in its domestic law when committed intentionally: \"(a) (i) The production, manufacture, extraction, preparation, offering, offering for sale, distribution, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation or exportation of any narcotic drug or any psychotropic substance contrary to the provisions of the 1961 Convention, the 1961 Convention as amended or the 1971 Convention; ii) The cultivation of opium poppy, coca bush or cannabis plant for the purpose of the production of narcotic drugs contrary to the provisions of the 1961 Convention and 1961 Convention as amended; iii) The possession or purchase of any narcotic drug or psychotropic substance for the purpose of any of the activities enumerated in (i) above; iv) The manufacture, transport, or distribution of equipment, materials or of substances listed in Table I and Table II, knowing that they are to be used in or for the illicit cultivation, production or manufacture of narcotic drugs or psychotropic substances; v) The organisation, management or financing of any of the offences enumerated in (i), (ii), (iii) or (iv) above; (b) (i) The conversion or transfer of property, knowing that such property is derived from any offence or [email protected]@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ established in accordance with subparagraph (a) of this paragraph, or from an act, of participation in such offence or offences, for the purpose of concealing or disguising the illicit original of the property or of assisting any person who is involved in the commission of such an offence or offences to evade the legal consequences of his actions, iii) The concealment or disguise of the true nature, source, location, disposition, movement rights with respect to, or ownership of property, knowing that such property is derived from an offence or offences established in accordance with paragraph (a) of this paragraph or from an act of participation in such an offence or offences; It was further agreed that subject to the constitutional principles and the basic concept of its legal system each country shall provide for: \"(i) The acquisition, possession or use of property, knowing, at the time of receipt, that such property was derived from an offence or offences established in accordance with subparagraph (a) of this paragraph or from an act of participation in such offence or offences; (ii) The possession of equipment or materials or substances listed in Table I and Table II, knowing that they are being or are to be used in or for the illicit cultivation, production or manufacture of narcotic drugs or psychotropic substances; (iii)Publicly inciting or inducing others, by any means, to commit any of the offences established in accordance with this article or to use narcotic drugs or psychotropic substances illicitly; (iv) Participation in, association or conspiracy to commit, attempts to commit and aiding, facilitating and counselling the commission of any of the offences established in accordance with this article.\" The parties to the Convention further resolved to provide in addition to conviction and punishment for an offence that the offender shall undergo measures such as treatment, education, after care, rehabilitation or social re-integration. It was further agreed: \"The parties shall endeavour to ensure that any discretionary legal powers under their domestic law relating to the prosecution of persons for offences established in accordance with this article are exercised to maximize the effectiveness of law enforcement measures in respect of those offences and with due regard to the need to deter the commission of such offences. The parties shall ensure that their courts or other competent authorities bear in mind the serious nature of the offences enumerated in paragraph 1 of this article and the circumstances enumerated in paragraph 5 of this article when considering the eventuality of early release or parole of persons convicted of such offences.\" A perusal of the agreement of the Convention to which India is claimed to be a party, clearly and unambiguously show that the court's jurisdiction with respect to the offences relating to narcotic drugs and psychotropic substances was never intended to be ousted, taken away or curtailed. The Declaration was made, subject to \"constitutional principles and the basic concepts of its legal system prevalent in the polity of a member country\". The international Agreement emphasised that the courts of the member countries shall always bear in mind the serious nature of offences sought to be tackled by the Declaration while considering the eventuality of early release or partly of persons convicted of such offences. There was no International Agreement to put a blanket ban on the power of the court to suspend the sentence awarded to a criminal under the Act notwithstanding the constitutional principles and basic concepts of its legal system. It cannot be denied that judicial review in our country is the heart and soul of our constitutional scheme. The judiciary is constituted the ultimate interpreter of the Constitution and is assigned the delicate task of determining the extent and scope of the powers conferred on each branch of the Government, ensuring that action of any branch does not transgress its limits. A Constitution Bench of this Court in S.P. Sampath Kumar v. Union of India [1987 (1) SCC 124] held that \"it is also a basic principle of the Rule of Law which permeates very provision of the Constitution and which forms its very core and essence that the exercise of power by the executive or any other authority must not only be conditioned by the Constitution but also be in accordance with law and it is the judiciary which has to ensure that the law is observed and there is compliance with the requirements of law on the part of the executive and other authorities. This function is discharged by the judiciary by exercise of the power of judicial review which is a most potent weapon in the hands of the judiciary for maintenance of the Rule of Law. The power of judicial review is an integral part of our constitutional system and without it, there will be no government of laws and the Rule of Law would become a teasing illusion and a promise of unreality\". Again in S.S. Bola & Ors. v. B.D. Sardana & Ors. [AIR 1999 SC 3127] it was reiterated that judicial review is the basic feature upon which hinges the checks and balances blended with hind sight in the Constitution as people's sovereign power for their protection and establishment of egalitarian social order under the rule of law. The judicial review was, therefore, held to be an integral part of the Constitution as its basic structure. Similarly, the filing of an appeal, its adjudication and passing of appropriate interim orders is concededly a part of the legal system prevalent in our country. In Ram Charan v. Union of India [1991(9) LCD 160], the Allahabad High Court while dealing with the question of [email protected]@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ constitutional validity of Section 32A found that as [email protected]@ JJJJJJJJJJJJJJ Section leaves no discretion to the court in the matter of deciding, as to whether, after conviction the sentence deserves to be suspended or not without providing any guidelines regarding the early disposal of the appeal within a specified period, it suffers from arbitrariness and thus violative of mandate of Articles 14 and 21 of the Constitution. In the absence of right of suspending a sentence, the right of appeal conferred upon accused was termed to be a right of infructuous appeal. However, Gujarat High Court in Ishwarsingh M. Rajput v. State of Gujarat [1990 (2) Gujarat Law Reporter 1365 =1991(2) Crimes 160] while dealing with the case relating to grant of parole to a convict under the Act found that Section 32A was Constitutionally valid. It was held: \"Further, the classification between the prisoners convicted under the Narcotics Act and the prisoners convicted under any other law, including the Indian Penal Code is reasonable one, it is with specific object to curb deterrently habit forming, booming and paying (beyond imagination) nefarious illegal activity in drug trafficking. Prisoners convicted under the Narcotics Act are class by themselves. Their activities affect the entire society and may, in some cases, be a death-blow to the persons, who become addicts. It is much more paying as it brings unimaginable easy riches. In this view of the matter, the temptation to the prisoner is too great to resist himself from indulging in same type of activity during the period, when he is temporarily released. In most of the cases, it would be difficult for him to leave that activity as it would not be easy for the prisoner to come out of the clutches of the gang, which operates in nefarious illegal activities. Hence, it cannot be said that section 32A violates Article 14 of the Constitution on the ground that it makes unreasonable distinction between a prisoner convicted under the Narcotic Act and a prisoner convicted for any other offences.\" Judged from any angle, the Section in so far as it completely debars the appellate courts from the power to suspend the sentence awarded to a convict under the Act cannot stand the test of constitutionality. Thus Section 32A in so far as it ousts the jurisdiction of the court to suspend the sentence awarded to a convict under the Act is unconstitutional. We are, therefore, of the opinion that Allahabad High Court in Ram Charan's case (Supra) has correctly interpreted the law relating to the constitutional validity of the Section and the judgment of Gujarat High Court in Ishwarsingh M. Rajput's case cannot be held to be good law. Despite holding that Section 32A is unconstitutional to the extent it affects the functioning of the criminal courts in the country, we are not declaring the whole of the section as unconstitutional in view of our finding that the Section, in so far as it takes away the right of the Executive to suspend, remit and commute the sentence, is valid and intra vires of the Constitution. The Declaration of Section 32A to be unconstitutional, in so far as it affects the functioning of the courts in the country, would not render the whole of the section invalid, the restriction imposed by the offending section being distinct and severable. Holding Section 32A as void in so far as it takes away the right of the courts to suspend the sentence awarded to [email protected]@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ convict under the Act, would neither entitle such [email protected]@ JJJJJJJJJJJJJJJJJJ to ask for suspension of the sentence as a matter of right in all cases nor would it absolve the courts of their legal obligations to exercise the power of suspension of sentence within the parameters prescribed under Section 37 of the Act. Section 37 of the Act provides: \"37. Offences to be cognizable and non-bailable (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973-- (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless-- i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 or any other law for the time being in force, on granting of bail. This Court in Union of India v. Ram Samujh & Anr. [1999 (9) SCC 429] held that the jurisdiction of the [email protected]@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ to grant bail is circumscribed by the aforesaid section [email protected]@ JJJJJJJJJJJJJJJJJ the Act. The bail can be granted and sentence suspended in a case where there are reasonable grounds for believing that the accused is not guilty of the offence for which convicted and he is not likely to commit any offence while on bail and during the period of suspension of the sentence. The Court further held: \"The aforesaid section is incorporated to achieve the object as mentioned in the Statement of Objects and Reasons for introducing Bill No.125 of 1988 thus: \"Even though the major offences are non-bailable by virtue of the level of punishments, on technical grounds, drug offenders were being released on bail. In the light of certain difficulties faced in the enforcement of the Narcotic Drugs and Psychotropic Substances Act, 1985 the need to amend the law to further strengthen it, has been felt\". (emphasis supplied) It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death-blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Dilier v. Chief Secretary, Union Territory of Goa [1990 (1) SCC 95] as under: (SCC p.104, para 24) \"24, With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menance has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine.\" 8. To check the menance of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely, i) there are reasonable grounds for believing that the accused is not guilty of such offence; and ii) that he is not likely to commit any offence while on bail. are satisfied.\" Under the circumstances the writ petitions are disposed of by holding that (1) Section 32A does not in any way affect the powers of the authorities to grant parole; (2) It is unconstitutional to the extent it takes away the right of the court to suspend the sentence of a convict under the Act; (3) Nevertheless, a sentence awarded under the Act can be suspended by the appellate court only and strictly subject to the conditions spelt out in Section 37 of the Act as dealt with in this judgment. The petitioner in Writ Petition No.l69/99 shall be at liberty to apply for parole and his prayer be considered and disposed of in accordance with the statutory provisions, if any, Jail Manual or Government Instructions without implying Section 32A of the Act as a bar for consideration of the prayer. Similarly petitioner in Writ Petition No.243/99 is at liberty to move the High Court for suspension of sentence awarded to him under the Act. As and when any such application is filed, the same shall be disposed of in accordance with law and keeping in view the limitations prescribed under Section 37 of the Act and the law laid down by this Court.",
        "1236969": "REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7404 OF 2008 (Arising out of SLP (C) No.6145 of 2006) M/s. Thukral Mechanical Works ... Appellant Versus P.M. Diesels Pvt. Ltd. & Anr. ... Respondents JUDGMENT S.B. Sinha, J. 1. Leave granted. 2. Interpretation of the provisions of Section 46(1)(b) of the Trade and Merchandise Marks Act, 1958 (hereinafter called and referred to for the sake of brevity as `the said Act') is involved herein. 3. The factual matrix of the matter, which is not much in dispute is as under : First Respondent is the registered proprietor of a trade mark `Field Marshal' for Diesel Engines since 1964 bearing No.228867. One M/s. Jain Industries got the trade mark `Field Marshal' registered under clause (7), inter alia, for Flour Mills, Centrifugal Pumps, couplings for machines, pulleys included in class 7 and valves (parts of machines). The said registration was renewed for the periods 13.5.1972 and 12.5.1979; 13.5.1979 and 12.7.1986 and 13.7.1986 and 12.7.1993. Appellant is said to have commenced its business of manufacturing and selling centrifugal pumps also under the mark `Field Marshall'. Allegedly, on the premise that the first respondent is the proprietor of the said mark by reason of long user and, thus, acquired a reputation in that behalf, a legal notice was issued upon it questioning its right to use the said mark in respect of centrifugal pumps by the appellant laying a claim that it had been using the said mark since 1963. 4. Respondent No.1 thereafter filed a suit in the Delhi High Court for grant of a decree of permanent injunction being Suit No.2408 of 1985 alleging infringement of the said mark and/or claiming right of passing off in respect thereof. An ex parte order of injunction was passed on 19.12.1985 against the defendant (appellant herein) to the following effect : \"Notice for April 8, 1986. Meanwhile, a temporary ex parte injunction is issued against the defendants restraining them from manufacturing or selling either themselves or through any dealer or representative diesel oil engines or parts thereof with the trade mark `Field Marshal' and/or any other trade mark identical therewith and all goods falling in Clause 7 of the Trade and Merchandise Mark Rules. The plaintiff shall comply with the requirements of Order 39 Rule 4 of the Code of Civil Procedure.\" 5. Indisputably, during the proceedings in the above suit, M/s. Jain Industries by a deed of assignment assigned the said trade mark along with its goodwill in favour of the appellant. One of the stipulations contained therein reads as under : \"That the party of the second part has satisfied the party of the first part of having used the mark FIELD MARSHAL in respect of Centrifugal Pumps and Valves since 1973.\" 6. Indisputably, First Respondent filed an application under Section 46, 56 and 107 of the Act, marked as C.O. No.9 of 1986, contending that M/s. Jain Industries having not used the trade mark in respect of Centrifugal Pumps for a period more than five years and one month, the mark should be taken off the register. It claimed user of the said mark since 1963 and sought for rectification of the register by expunging the expression `circulation and centrifugal pumps' from the specification of goods. Indisputably, appellant filed an application in form TM 24 on 17.6.1986. The Assistant Registrar, Trade Marks, passed an order on 10.11.1986 certifying : \"THAT the trade mark FIELD MARSHAL BRAND (word per se) is registered under No.228867 in part `A' of the Register as of the date 13th May, 1965 in class 7 in respect of Flour Mills, circulating and centrifugal pumps; coupling for machines; pulleys included in Class 7, and valves (parts of machines) in the name of Pooran Chand Jain and Kailash Chand Jain, trading as Jain Industries, 1166, Phatak Suraj Bhan, Belanganj Agra. THAT Pursuant to a request on form TM-23 dated 17th June, 1986 and order thereon dated 24th October, 1986 Ganga Ram Anil Kumar (HUF), Sunil Kumar and Sumitra Rani, trading as Thukral Mechanical Works Railway Road, Sirhind (Punjab) are registered as subsequent proprietors of this mark as from 30th May, 1986 by virtue of Agreement dated 30th May, 1986. AND THAT The registration of the aforesaid trade mark has been renewed from time to time and will remain in force for a period of a seven years from 13th May, 1986 and may be renewed at the expiration of that period and of each succeeding period of a seven years.\" 7. In the said C.O. No.9 of 1986 filed by the first respondent against M/s. Jain Industries, despite service of notice, nobody appeared on behalf of the defendant. 16.1.1987 was the date fixed in the said suit. Appellant's counsel appeared on that date and, inter alia, contended that presently it was the registered owner of the trade mark which was sought to be cancelled. In view of that statement, a submission was made on behalf of the first respondent that it may be permitted to withdraw the petition with liberty to file a fresh petition on the same cause of action. The learned Judge directed recording of statements of the learned counsel in this behalf; pursuant whereto the same were recorded which reads as under : \"C.O.9 of 1986 Mr. Singh has filed a reply in this petition bringing out that presently he is the registered owner of the trademark which is sought to be cancelled in this petition. In view of this situation learned counsel for the petitioner has submitted that he may be permitted to withdraw this petition with permission to file a fresh petition on this very cause of action after impleading M/s Thakural mechanical Works etc. Let the statement of learned counsel for the petitioner be recorded. Statement of Shri K.L. Aggarwal, counsel for petitioner without oath : In view of the submissions of M/s Thakural Mechanical Works I may be permitted to withdraw this petition with permission to file a fresh petition on this very cause of action. Statement of Shri Hemant Singh, counsel for M/s. Thakural Mechanical Works without oath : I have no objection if the petitioner is permitted to withdraw this petition with permission to file a fresh petition on this very cause of action.\" On the basis of the said statement, the following order was passed : \"This petition has been filed by M/s. PM Diesels Pvt. Ltd. Against M/s. Jain Industries and the Dy. Registrar of Trade Marks under Section 46, 56 and 107 of the Trade and Merchandise Marks Act, 1958 for rectification of entry relating to the Registered Trade Mark No.228867 in Class 7. After the notice was served upon the respondent 1, a reply has been filed by M/s Thakural Mechanical Works bringing out therein that they are now the registered proprietors of said Trade Mark No.228867. In this view of the matter learned counsel for the petitioner has submitted that he may be permitted to withdraw this petition with permission to file a fresh petition on this very cause of action. The request is not opposed on behalf of M/s Thakural Mechanical Works. In these circumstances the request of the plaintiff is granted and petitioner is permitted to withdraw this petition and file a fresh petition on this very cause of action. The petition is accordingly filed as withdrawn leaving the parties to bear their own costs.\" 8. A fresh application was filed by the first respondent. The said M/s. Jain Industries, however, was not impleaded as a party therein. The cause of action therefor was stated to have arisen in the following circumstances : \"That the cause of action for the present petition arose in favour of the petitioner and against the respondents in the month of January 1987 when the respondent informed this Hon'ble Court that they have been recorded as subsequent proprietors of the impugned registered trade mark No.228867 in Class 7 in C.O. No.9 of 1986, whereupon the petitioner withdrew the said earlier petition C.O. No.9 of 1986 with permission of the court to file the present petition, because of the changed circumstances. The cause of action is continuous from day to day till the impugned registration is cancelled/rectified.\" 9. The injunction matter in Suit No.2408 of 1985 came up for hearing before a learned Single Judge of the High Court. By an order dated 19.1.1988, having regard to the provisions contained in the said Act, the learned Judge opined that appellant having become the registered proprietor of the said trade mark, no case for grant of injunction has been made out, the interim order of injunction passed on 19.12.1985 was vacated and the defendants were permitted to use their registered trade mark subject to the following conditions : \"(a) Defendants will not use the logo/style of the word \"Field Marshal\" of which logo and style the plaintiff is the proprietor under the Copyright Act. (b) Defendants shall mention the name of the defendant firm, Thukral Mechanical Works, Sirhind on each and every centrifugal pump manufactured by them and sold in the name of `Field Marshal'. (c) The defendants shall maintain proper accounts of the sale of centrifugal pumps under the trade mark \"Field Marshal\" and shall file them in Court as and when directed.\" 10. Correctness or otherwise of the said order has not been questioned. The second rectification application filed by the first respondent, however, was transferred to the Intellectual Property Appellate Board. The said application was dismissed. A writ petition was filed thereagainst by the first respondent. A learned Single Judge of the Delhi High Court, however, refused to stay the operation of the order of the Board dated 27.10.2004. An appeal was preferred thereagainst. The Division Bench of the High Court thereafter while disposing of both the writ petition and the Letters Patent Appeal allowed the writ petition and set aside the order of the Board and directed it to adjudicate the dispute on merits. The said order of the Division Bench is under challenge in this appeal. 11. The core question which arises for our consideration is as to whether in the aforementioned facts and circumstances of the case, the application under Section 46(1)(b) was maintainable. Before adverting thereto, we may take notice of the relevant statutory provisions : 12. Sections 46(1)(b), 48(1), 48(2) and 56 read as under : \"Section 46--Removal from register and imposition of limitations on ground of non-use--(1) Subject to the provisions of section 47, a registered trade mark may be taken off the register in respect of any of the goods in respect of which it is registered on application made in the prescribed manner to a High Court or to the Registrar by any person aggrieved on the ground either-- (a) ... (b) that up to a date one month before the date of the application, a continuous period of five years or longer had elapsed during which the trade mark was registered and during which there was no bona fide use thereof in relation to those goods by any proprietor thereof for the time being: Provided that, except where the applicant has been permitted under sub-section (3) of section 12 to register an identical or nearly resembling trade mark in respect of the goods in question or where the tribunal is of opinion that he might properly be permitted so to register such a trade mark, the tribunal may refuse an application under clause (a) or clause (b) in relation to any goods, if it is shown that there has been, before the relevent date or during the relevant period, as the case may be, bona fide use of the trade mark by any proprietor thereof for the time being in relation to goods of the same description, being goods in respect of which the trade mark is registered. Section 48--Registered users--(1) Subject to the provisions of section 49, a person other than the registered proprietor of a trade mark may be registered as the registered user thereof in respect of any or all of the goods in respect of which the trademark is registered otherwise than as a defensive trade mark; but the Central Government may, by rules made in this behalf, provide that no application for registration as such shall be enertained unless the agreement between the parties complies with the conditions laid down in the rules for preventing trafficking in trade marks. (2) The permitted use of a trade mark shall be deemed to be used by the proprietor thereof, and shall be deemed not to be used by a person other than the proprietor, for the purposes of section 46 or for any other purpose for which such use is material under this Act or any other law. Section 56--Power to cancel or vary registration and to rectify the register--(1) On application made in the prescribed manner to a High Court or to the Registrar by any person aggrieved, the tribunal may make such order as it may think fit for cancelling or varying the registration of a trade mark on the ground of any contravention, or failure to observe a condition entered on the register in relation thereto. (2) Any person aggrieved by the absence or omission from the register of any entry, or by any entry made in the register without sufficient cause, or by any entry wrongly remaining on the register, or by any error of defect in any entry in the ' register, may apply in the prescribed manner to a High Court or to the Registrar, and the tribunal may make such order for making, expunging or varying the entry as it may think fit. (3) The tribunal may in any proceeding under this section decide any question that may be necessary or expedient to decide in connection with the rectification of the register. (4) The tribunal, of its own motion, may, after giving notice in the prescribed manner to the parties concerned and after giving them an opportunity of being heard, make any order referred to in sub-section (1) or sub- section (2). (5) Any order of the High Court rectifying the register shall direct that notice of the rectification shall be served upon the Registrar in the prescribed manner who shall upon receipt of such notice rectify the register accordingly. (6) The power to rectify the register conferred by this section shall include the power to remove a trade mark registered in Part A of the register to Part B of the register.\" 13. Indisputably, the scope of the provisions for removal from Register in terms of Section 46 and 56 of the Act stand on different footings. Whereas Section 46 had a limited application, Section 56 of the Act is wider in nature. Concededly, clause (a) of sub-section (1) of Section 46 is not attracted in the case. 14. For the purpose of appreciation of the rival contentions, we may notice the findings of the Board as also the High Court. The Board has taken the view that the period of five years and one month will begin to run from the date on which Thukral became the proprietor of the trademark, that is, 30th May, 1986 and, therefore, the rectification application could have been filed by the appellant only sometime in 1991. Opining that an application for rectification against the appellant within a period of seven and a half months from the date of assignment of the trade mark was not maintainable, the application was dismissed. The High Court on the other hand opined : \"It was not anybody's case before us that M/s Jain Industries the registered proprietor of the trademark used it at all. The trademark was used by the Appellant and Thukral, neither of whom were proprietors thereof, except that Thukral claims to have become its proprietor with effect from 30th May, 1986. According to learned counsel for the Appellant, the use of the trademark by Thukral was not legally permissible use inasmuch as Thukral did not have the consent, tacit or otherwise of M/s. Jain Industries to use the trademark. If Thukral did, then it cannot be said that there was no bona fide use thereof by its proprietor, that is, M/s Jain Industries. This appears to be the position at least till 30th May, 1986. In the meantime, as a result of the ex parte ad interim injunction granted on 19th December 1985 by this Court in Suit No.2408 of 1985, there was no question of Thukral using the trademark Field Marshal till the injunction was vacated on 19th January, 1988.\" 15. The Act was enacted to provide for the registration and better protection of trademarks and for the prevention of the use of fraudulent marks of merchandise. Registration of a trade mark remains valid for seven years. Renewal applications are required to be filed on the expiry of seven years. M/s. Jain Industries got itself registered and obtained periodical renewal thereof as is required under the Act. First Respondent withdrew the application against M/s. Jain Industries. The prayer in the application was to take off the registered trade mark from the register in respect of centrifugal pumps (goods) so far as the registration made in favour of the appellant is concerned. 16. It is in the aforementioned situation, we are called upon to determine the meaning of the words `for the time being' occurring in Section 46(1)(b) of the Act. Two interpretations thereto which are possible are : (1) the said words would denote non-use of the trade mark in relation to the goods by the appellant for a period of five years or longer; and (2) The mark had not been used for a period of five years or longer either by the present proprietor thereof or his predecessor. 17. We may, however, also notice that another construction of the said provision has been put forth by Mr. Sunderam, learned senior counsel appearing on behalf of the appellant, that the word `proprietor' would not mean a registered proprietor but also a person who has become `proprietor' by long use thereof. 18. The words `for the time being' would mean differently in different situations. It may mean `the moment or existing position' as was held by this Court in the case of Jivendra Nath Kaul v. Collector/District Magistrate and Anr. [(1992) 3 SCC 576] or in the context of clause (22) of Article 366 of the Constitution as has been held in H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur of Gwalior, H.H. Maharajadhiraja Maharana Shri Bhagwat Singhji Bahadur of Udaipur v. Union of India and Anr. [AIR 1971 SC 530 para 110] to mean : \"By the use of the expression \"for the time being\" in Clause (22) of Article 366 the President is not invested with authority to accord a temporary recognition to a Ruler nor with authority to recognize or not to recognize a Ruler arbitrarily : the expression \"for them time being\" predicts that there shall be a Ruler of the Indian State, that if the first recognized Ruler dies, or ceases to be a Ruler, a successor shall be appointed, and that there shall not be more Rulers than one at a given time.\" The terms also may bring within its umbrage the entire period of five years or more irrespective of the fact as to whether the registered proprietor was one or more than one as has been held by the High Court. 19. There cannot be any doubt or dispute that the registration of a trade mark confers a very valuable right. The person in whose name the trade mark has been registered may take action against any person for passing off the goods as that of the registered owner. It confers an exclusive right of use of the trade mark in relation to the goods in which the trade mark is registered. The same is an assignable right in terms of Section 36 of the Act, whereas an unregistered trade mark is not. 20. Non-user of the said mark, therefore, entails the consequences laid down under clause (b) of Sub-section (1) of Section 46. However, such an application can be filed only by a person aggrieved. When the applicant before the Board establishes the fact in regard to non-user of the mark for a period of more than five years on the part of the registered owner, the latter may show that his case falls within the purview of sub-section (3) of Section 46. 21. The question which, therefore, arises is as to who can prove that he had the bona fide intention to use the trade mark on the date of application for registration. Indisputably, it would be the registered proprietor. Section 46 is a penal provision. It provides for civil or evil consequences. It takes away the valuable right of a registered proprietor. It, therefore, can be taken away only when the conditions laid down therefor are satisfied. 22. While we say so, we are not oblivious of the fact that trafficking in trade mark is to be discouraged. A registered proprietor of a trade mark should not be permitted to circumvent the law of user of the trade mark for a long time by assigning the same from time to time. But then such a case has to be made out. Allegation of trafficking is a serious one. It must be proved in presence of the person against whom such allegations are made. At the time of grant of original registration, advertisements are issued and objections are called for. Renewal of registration, in a sense, also is not automatic. A person who had been using the said trade mark as a proprietor thereof by user is supposed to keep itself abreast with such applications filed by another either for registration of the trade mark or renewal thereof. The non-user for a long time would disentitle a registered proprietor from renewal of the registration. 23. It must not, however, be forgotten that Section 46(1)(b) provides for a special remedy. As a person obtains a right on and from the date of registration and/or renewal thereof, he can ordinarily be deprived of his right unless it is shown that the assignment thereof by his holder was not a bona fide one or had been made by way of camouflage. If the assignee has obtained assignment for bona fide use, he may not be fastened with any liability owing to non-user on the part of his predecessor. In other words, the mistake of the predecessor should not be visited with non-use of the present registered owner. 24. It must, however, be observed that whether a use is for bona fide purpose would essentially be a question of fact. Whether Section 46(1)(b) read with Section 48 of the Act would bring within its purview, not only a registered proprietor but also the proprietor who had otherwise acquired a right would depend upon the facts and circumstances of each case. In Kabushiki Kaisha Toshiba v. Tosiba Appliances Co. & Ors. [(2008) 8 SCALE 354], this Court held : \"We do not find any force in the aforementioned submission. Clauses (a) and (b) operate in different fileds. Sub-section (3) covers a case falling within clause (b) and not the clause (a) thereof. Had the intention of the Parliament been that sub-section (3) covers cases falling under clause (b) and clause (a), having regard to the similarity of the expressions used, there was no reason as to why it could not be stated so explicitly. It was furthermore opined : \"There may be a case where owing to certain special circumstances, a continuous use is not possible. The trade mark for which registration is obtained is used intermittently. Such non-user for a temporary period may be due to any exigency including a bar under a statute, or a policy decision of the Government or any action taken against the registrant.\" It was observed that in cases of intermittent use also, clause (b) shall apply. In Kabushiki Kaisha Toshiba, this Court relied upon Hardie Trading Ltd. & Anr. V. Addisons Paint & Chemicals Ltd. [(2003) 11 SCC 92] : \"In our opinion, the phrase \"person aggrieved\" for the purposes of removal on the ground of non-use under Section 46 has a different connotation from the phrase used in section 56 for canceling or expunging or varying an entry wrongly made or remaining in the Register.\" 25. The submission of Mr. Sudhir Chandra that the appellant was an infringer both of the right of M/s. Jain Industries as also the first respondent and, thus, its use was not bona fide in a case of this nature cannot be accepted. If appellant infringed the right of M/s. Jain Industries, it was for it to take action therefor. It did not. First respondent itself accepts that at least immediately prior to the institution of the suit, appellant had been using the same. We are not concerned herein as to since when it had been doing so. It obtained an or of injunction. The order of injunction was vacated. For one reason or the other, the said order attained finality. Prima facie, therefore, appellant has been held to be the registered owner of the trade mark. It is one thing to say that for the purpose of frustrating an application for rectification, the appellant had colluded with its predecessor for the purpose of trafficking by entering into the deed of assignment which is otherwise illegal and bad in law but it is another thing to say that the appellant could be proceeded against alone for non-user of the registered trade mark for a period of more than five years. For the purpose of making out such a case, both the original registrants as also the assignee were required to be impleaded as parties. 26. We may, at this stage, notice that in Law of Trade Marks by Mr. K.C. Kailasam, while commenting on Section 47 of the Trade Marks Act, 1999 to which our attention has been drawn by Mr. Sudhir Chandra, it is stated : \"Notes on clauses.--This clause corresponds to section 46 of the existing Act and provides for removal of a trade mark from the register on the ground of non-use. A trade mark which is not used within five years of its registration, becomes liable for removal either completely or in respect of those goods or services for which the mark has not been used. Under Section 46(1), it is proposed to clarify that the five years period will start from the date on which the trade mark is actually entered on the register. This amendment is intended to remove any ambiguity, as for all other purposes, the date of registration will be the date on which the application was filed vide clause 23(2). Proviso to sub-clause (1) also provides that the tribunal may refuse removal of the mark if it is shown that any proprietor had in fact made bona fide use of the trademark for goods or services of the same description or associated goods or services. It is also proposed to increase the period from 1 to 3 months in clause 47(1)(a) and (b) in which use of the trade mark, prior to the date of filing of the application for removal of the trade mark, shall be disregarded. This is intended to prevent the registered proprietor to by pass the Act by such token use after he comes to know that an application for removal is about to be filed. ?Sub-clause (3) protects a mark from being removed from the register on ground of non-use if such non-use is shown to have been due to special circumstances in the trade. The clause is proposed to be modified to clarify that special circumstances in the trade will include restrictions imposed by any law or regulation on the use of trade mark in India. Consequential amendments have been made to cover services. (Clause 47 of the Bill)\" 27. The Court while construing a statute takes into consideration the parliamentary intent in amending the provisions thereof. It seeks to enhance the period of moratorium of use of the registered trade mark from one month to three months so as to prevent speculative assignment. Thus, a case of speculative assignment is specifically required to be made out. Such an application may be maintainable in terms of Section 56 of the Act but strictly not in terms of Section 46(1)(b) thereof and that too in the absence of the original registered proprietor. 28. We are not satisfied with the explanation offered by the first respondent that it gave up the case of non-use of the registered trade mark against M/s Jain Industries on the basis of statement made by the learned counsel for the appellant; firstly because consent does not confer jurisdiction; secondly, because want and/or lack of jurisdiction on the part of the Tribunal cannot be waived as if any order is passed without jurisdiction, the same would be a nullity; and thirdly because the cause of action, even according to the first respondent in his application before the High Court, was different. The counsel appearing on behalf of the appellant did not state that it had waived its right so far as non-impleadment of M/s Jain Industries was concerned. It only consented for grant of liberty in favour of the first respondent for filing of an application for the self-same cause of action. The question of maintainability of the second suit is absence of the registrant proprietor was not and could not have been the subject matter of consent at that stage. The cause of action which permitted the first respondent to file an application for rectification against M/s. Jain Industries was non-user thereof by it. Its non-user and rectification of the register could not, in the aforementioned situation, have been tagged with the cause of action, if any, against the appellant. 29. The second contention of Mr. Sudhir Chandra that the appellant was an infringer of the trade mark is again a question of fact. The right of the first respondent as a proprietor of the trade mark by reason of a long user is required to be determined vis-`-vis M/s. Jain Industries as also the appellant in the suit filed by it which is pending. The Board could not, while exercising its jurisdiction under Section 46(1)(b), of the Act proceeded on the basis of such presumption. It is not correct that no cause of action survived against Jain Industries. It was not lost by reason of assignment as was contended by the learned counsel. In the suit, only the competing right of the first respondent qua the appellant can be determined and not a right against M/s. Jain Industries. Such a right cannot be determined in a proceeding under Section 46(1)(b) of the Act which is restricted to non-user of the registered trade mark. Both the appellant and the respondent No.1 were the infringers of the right of M/s. Jain Industries as it was the registered proprietor of the trade mark in respect of the goods in question, namely, centrifugal pumps. 30. Two interpretations of the said provision Section 46(1)(b) are possible. While interpreting the same, however, certain basic principles of construction of statute must be kept in mind. As it takes away somebody's right, it deserves strict construction. Jurisdiction of the Board being dependent on determination of the foundational facts, the same was required to be established on the basis of the averments made in the application and not otherwise. The right of a registered trade mark is not lost automatically on the expiry of five years and one month. It does not provide for a `sun set' law. It has to be adjudicated upon. Whether the registered proprietor of the trade mark had taken recourse to trafficking or not must be determined in an appropriate proceeding. The principle of `purchaser of a property has a duty to make enquiries', therefore, cannot apply in a case of this nature. So long as the right to assign a registered trade mark remains valid, once the same is validly assigned, the assignee derives the same right as that of the assignor in terms of the statute. A title to a trade mark derived on assignment as provided for under the Act cannot be equated with a defective title acquired in any other property as admittedly on the date of assignment, the right of the registered trade mark was not extinguished. 31. Both the findings of the High Court which we have noticed hereinbefore are findings on question of law and in that view of the matter the contention of Mr. Sudhir Chandra that the merit of the matter is yet to be gone into by the Board cannot be a ground for ignoring the submissions made at the bar. 32. Our attention has again been drawn to a passage from `Law of Trade marks & Geographical Indications' by Shri K.C. Kailasam, wherein the judgment of the Tribunal has been criticized in the following terms : \"From the above legislative intent, it would seem that the period of non-use of the trade mark is to be reckoned continuously from the date of its registration. In the case of American Home Products Corporation v. Mac Laboratories Pvt. Ltd. Rendered under the 1958 Act, it was held by the Supreme Court that \"the person seeking to have the trade mark removed from the register has only to prove such continuous non-user.\" It would appear that neither the U.K. Act, nor the Indian Act, at any time envisaged that the commencement of 5 year period of non-use is to be delinked from the date of registration of the mark, so as to give a fresh lease of life to the registration, every-time there is change in the ownership of the mark. If that be so, any registered proprietor could easily defeat an application for rectification by assigning the mark to some other person to have a fresh period of 5 years from the date of assignment and thus effectively frustrate the very object of the provision in section 47(1)(a) and (b). Further, it is to be noted that an assignment is subject to \"the provisions of the Act and any rights vested in any other person\"--See section 37. The assignor cannot obviously transfer more rights than he himself has to the assignee under the Act.\" 33. We do not think that the approach of the learned author is entirely correct. An assigner can transfer only such right which he possesses. If his title is not extinguished by reason of a provision of a statute for non-user of the trade mark for a period of five years, any assignment made shall be valid subject to such situation which we have noticed in paragraph 25 supra. 34. For the views we have taken, we are of the opinion that the impugned judgment cannot be sustained. It is set aside accordingly. The Board shall, however proceed to determine afresh the application filed by the first in the light of the legal principles explained above. 34. The appeal is allowed with costs. Counsel's fee assessed at Rs.1,00,000/-. .....................................J. [S.B. Sinha] .....................................J. [Cyriac Joseph] New Delhi; December 18, 2008",
        "952082": "CASE NO.: Appeal (civil) 4892 of 1998 PETITIONER: RAUNAQ INTERNATIONAL LTD. RESPONDENT: I.V R. CONSTRUCTION LTD. AND ORS. DATE OF JUDGMENT: 09/12/1998 BENCH: MRS. SUJATA V. MANOHAR & B.N. KIRPAL JUDGMENT: JUDGMENT 1998 Supp(3) SCR 421 The Judgment of the Court was delivered by MRS. SUJATA V. MANOHAR, J. The Maharashtra State Electricity Board, the appellant in Civil Appeal No. 4893 of 1998 floated a tender dated 20.12.1997 for design, engineering, manufacture, supply, erection and commissioning of large diameter pipes and steel tanks with all accessories and auxiliaries as prescribed in the bid documents for units 3 and 4 of Khaperkheda Thermal Power Station, Maharashtra, each unit being of 210 MW. The qualifying requirements of bidders as specified in the tender were, that the bidder should have designed Fabricated/manufactured, supplied, erected and successfully commissioned large diameter piping system comprising the supply of M.S. pipes not less than 2000 mm diameter and laid/buried for a minimum total length of 3 kms. in a thermal power station and the same should be in successful operation for the past two years as reckoned on the date set for opening of the bid. Further, the bidder should have minimum turnover of Rs. 7.5 crores per annum for the last 3 consecutive years. Under clause 1.4 of the qualifying criteria, it was provided : 'Notwithstanding anything stated above the Owner reserves the right to assess the Bidders' capability and capacity to perform, should the circumstances warrant such an assessment in the overall interest of the owner.' Pursuant to the invitation, the appellant-Maharashtra State Electricity Board received tenders from eleven bidders including M/s. IVR Construction Ltd. and M/s Raunaq International Ltd., who are the two contestants before us. After screening of the bids a note was submitted by the Technical Director of the Maharashtra State Electricity Board for the consideration of the Board of Directors. The note stated that out of the offers received, four offers were from tenderers who qualified as per the qualifying criteria. M/s IVR Construction Ltd., Hyderabad was stated to be one of the four such offerers. The note also mentioned that two offerers which included M/s Raunaq International Ltd., though not meeting the qualifying requirements, had done CW piping for 210 MW units. M/S IVR Construction Ltd. were recommended by the Technical Director for the placement of the order. The said company, however, fell, short of the requisite experience by one year. The note also stated that the offer of M/s Raunaq International Ltd. was the most competitive, being Rs, 43,28,316 Jess than the price quoted by M/s IVR Construction Ltd, In this connection, it is pointed out by the Maharashtra State Electricity Board that M/s Raunaq International Ltd. have designed, fabricated and commissioned M.S. pipes of 2000 mm diameter buried underground but for a distance less than 3 kms. They also have the requisite experience of doing such work for thermal power units of 210 MWs.. They have more than 2 years' experience in this work. The Board of Directors of the Maharashtra State Electricity Board, at its meeting held on 29.6.1998, after considering the note submitted by the Technical Director, decided to accept the offer of M/s Raunaq International Ltd. in view of the price advantage to the Board and adequate experience of M/s Raunaq International Ltd. of having completed similar type of work for 210 MW units. The offer of M/s Raunaq International Ltd. was accordingly accepted and the tender was awarded to it. M/s IVR Construction Ltd. challenged the decision of the Board in a writ petition filed in the High Court of Bombay, The High Court has passed the impugned interim order under which the High Court stayed the operation of the Letter of Intent dated 20th Of July, 1998 issued to M/s Raunaq international Ltd. Hence the present appeal. In these proceedings the Maharashtra State Electricity Board has filed an affidavit of its Technical Director. It is stated in this affidavit that the offer of M/s Raunaq International Ltd. was accepted on account of the price advantage to the Board, its offer being the lowest; and also in view of the adequate experience which M/s Raunaq International Ltd. possessed, having completed similar work in other 210 MW thermal power stations. This was done by relaxing the qualifying criterion which the Board said, it had the right to do, in view of clause 1.4 set out above. The Maharashtra State Electricity Board has also pointed out that M/s IVR Construction Ltd. also do not satisfy all the qualifying criteria because they do not have two years experience of such work which is prescribed under the qualifying criteria. Their total experience; is of less than a year. Therefore, looking to the fact that relaxation of criteria would have been required in respect of M/s IVR Construction Ltd. also and in view of the fact that the offer of M/s Raunaq International Ltd. is the lowest, if the Board has accepted the offer of M/s Raunaq International Ltd. after weighing their requirements against the qualifications of the two competing bidders, we fail to see how the High Court could have intervened and stayed the operation of the award of contract to M/s Raunaq International Ltd. This is not a case where any mala fides have been alleged against any member of the Board. Nor is there any allegation of any collateral motive for awarding the contract to M/s Raunaq International Ltd. The only ground of challenge in the writ petition filed by M/s IVR Construction Ltd. is that M/s. Raunaq International did not fulfil the qualifying criterion of having laid such pipeline for a distance of 3 kms. But the challenger- M/s IVR Construction Ltd. also does not fulfil the qualifying criterion. In these circumstances, we fail to see any basis for passing the impugned order. The award of a contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision considerations which are of paramount importance are commercial considerations. These would be :(1) The price at which the other side is willing to do the work; (2) Whether the goods or services offered are of the requisite specifications; (3) Whether the person tendering has the ability to deliver the goods or services as per specifications. When large works contracts involving engagement of substantial manpower or requiring specific skills are to be offered, the financial ability of the tenderer to fulfil the requirements of the job is also important; (4) the ability of the tenderer to deliver goods or services or to do the work of the requisite standard and quality; (5) past experience of the tenderer, and whether he has successfully completed similar work earlier; (6) time which will be taken to deliver the goods or services; and often (7) the ability of the tenderer to take follow up action, rectify defects or to give post contract services. Even when the State or a public body enters into a commercial transaction, considerations which would prevail in its decision to award the contract to a given party would be the same. However, because the State or a public body or an agency of the State enters into such a contract, there could be, in a given case, an element of public law or public interest involved even in such a commercial transaction. What are these elements of public interest ? (1) Public money would be expended for the purposes of the contract; (2) The goods or services which are being commissioned could be for a public purpose, such as, construction of roads, public buildings, power plants or other public utilities. (3) The public would be directly interested in the timely fulfilment of the contract so that the services become available to the public expeditiously. (4) The public would also be interested in the quality of the work undertaken or goods supplied by the tenderer. Poor quality of work or goods can lead to tremendous public hardship and substantial financial outlay either in correcting mistakes or in rectifying defects or even at times in re-doing the entire work - thus involving larger outlays or public money and delaying the availability of services, facilities or goods. e.g. A delay in commissioning a power project, as in the present case, could lead to power shortages, retardation of industrial development, hardship to the general public and substantial cost escalation. When a writ petition is filed in the High court challenging the award of a contract by a public authority or the State, the court must be satisfied that there is some element of public interest involved in entertaining such a petition. If, for example, the dispute is purely between two tenderers, the court must be very careful to see if there is any element of public interest involved in the litigation. A mere difference in the prices offered by the two tenderers may or may not be decisive in deciding whether any public interest is involved in intervening in such a commercial transaction. It is important to bear in mind that by court intervention, the proposed project may be considerably delayed thus escalating the cost far more than any saving which the court Would ultimately effect in public money by deciding the dispute in favour of one tenderer or the other tenderer. Therefore, unless the court is satisfied that there is a substantial amount of public interest, or the transaction is entered into mala fide. the court should not intervene under Article 226 in disputes between two rival tenderers. When a petition is filed as a public interest litigation challenging the award of a contract by the State or any public body to a particular tenderer, the court must satisfy itself that party which has brought the litigation is litigating bona fide for public good. The public interest litigation should not be merely a cloak for attaining private ends of a third party or of the party bringing the petition. The court can examine the previous record of public service rendered by the organisation bringing public interest litigation. Even when a public interest litigation is entertained the court must be careful to weigh conflicting public interests before intervening. Intervention by the court may ultimately result in delay in the execution of the project The obvious: consequence of such delay is price escalation. If any re-tendering is prescribed, cost of the project can escalate substantially. What is more important, ultimately the public would have to pay a much higher price in the form of delay in the commissioning of the project and the consequent delay in the contemplated public service becoming available to the public. If it is a power project which is thus delayed, the public may lose substantially because of shortage in electric supply and the consequent obstruction in industrial development. If the project is for the construction of a road, or an irrigation canal, the delay in transportation facility becoming available or the delay in water supply for agriculture being available, can be a substantial set back to the country's economic development. Where the decision has been taken bona fide and a choice has been exercised on legitimate considerations and not arbitrarily, there is no reason why the court should entertain a petition under Article 226. Hence before entertaining a writ petition and passing any interim orders in such petitions, the court must carefully weigh conflicting public interests. Only when it comes to a conclusion that there is an overwhelming public interest in entertaining the petition, the court should intervene. Where there is an allegation of mala fides or an allegation that the contract has been entered into for collateral purposes, and the court is satisfied on the material before it, that the allegation needs further examination, the court would be entitled to entertain the petition. But even here, the court must weigh the consequences in balance before granting interim orders. Where the decision-making process has been structured and the tender conditions set out the requirements, the court is entitled to examine whether these requirements have been considered. However, if any relaxation is granted for bona fide reasons, the tender conditions permit such relaxation and the decisions is arrived at for legitimate reasons after a fair consideration of all offers, the court should hesitate to intervene. It is also necessary to remember that price may not always be the sole criterion for awarding a contract. Often when an evaluation committee of experts is appointed to evaluate offers, the expert committee's special knowledge plays a decisive role in deciding which is the best offer. Price offered is only one of the criteria. The past record of the tenderers, the quality of the goods or services which are offered, assessing such quality on the basis of the past performance of the tenderer, its market reputation and so on, all play an important role in deciding to whom the contract should be awarded. At times, a higher price for a much better quality of work, can be legitimately paid in order to secure proper performance of the contract and good quality of work-which is as much in public interest as a low price. The court should not substitute its own decision for the decision of an expert evaluation committee. Normally before such a project is undertaken, a detailed consideration of the need, viability, financing and cost, effectiveness of the proposed project and offers received takes place at various levels in the Government. If there is a good reason why the project should not be undertaken, then the time to object is at the time when the same is under consideration and before a final decision is taken to undertake the project. If breach of law in the execution of the project is apprehended, then it is at the stage when the viability of the project is being considered that the objection before the appropriate authorities including the Court must be raised. We would expect that if such objection or material is placed before the Government the same would be considered before a final decision is taken. It is common experience that considerable time is spent by the authorities concerned before a final decision is taken regarding the execution of a public project. This is the appropriate time when all aspects and all objections should be considered. It is only when valid objections are not taken into account or ignored that the court may intervene, Even so, the Court should be moved at the earliest possible opportunity. Belated petitions should not be entertained. The same considerations must weigh with the court when interim orders are passed in such petitions. The party at whose instance interim orders are obtained has to be made accountable for the consequences of the interim order. The interim order could delay the project, jettison finely worked financial arrangements and escalate costs. Hence the petitioner asking for interim orders, in appropriate cases should be asked to provide security for any increase in cost as a result of such delay, or any damages suffered by the opposite party in consequence of an interim order. Otherwise public detriment may outweigh public benefit in granting such interim orders. Stay order or injunction order, if issued, must be moulded to provide for restitution; A somewhat different approach may be required in the cases of award of a contract by the Government for the purchase of times for its use. Judicial review would be permissible only on the established grounds for such review including mala fides, arbitrariness or unreasonableness of the Wendensbury variety. Balance of convenience would play a major role in moulded interim relief. There is a third variety of transactions entered into by the Government which come up for consideration before the courts, This is where the Government grants licences or permissions for a fee or consideration to private parties, enabling them to commercially exploit such a licence or permission. The principles of judicial review are no different in such a case. However, grant of stay or injunction in such cases may or may not result in prejudice to the public revenue, depending on the facts of the case. At times granting of a licence or permission may cause public harm e.g. in the case of damage to the ecology. Interim orders will have to be mouled in such cases on a consideration of all relevant factors, providing for restitution where required in public interest. It is unfortunate that despite repeated observations of this court in a number of cases, such petitions are being readily entertained by the High Courts without weighing the consequences. In the case of Fertiliser Corporation Kamgar Union (Regd.), Sindri and Ors. v. Union of India and Ors, [1981] 1 SCC 568, this court observed that if the Government acts fairly, though falters in wisdom, the court should not interfere. \"A pragmatic approach to social justice compels us to interpret constitutional provisions, including those like Articles 32 and 226, with a view to see that effective policing of the corridors of power is carried out by the court until other ombudsman arrangement.............. emerges............ The court cannot usurp or abdicate, and the parameters of judicial review must be clearly defined and never exceeded. If the Directorate of a Government company has acted fairly, even if it has faltered in its wisdom, the court cannot, as a super auditor, take the Board of Directors to task. This function is limited to testing whether the administrative action has been fair and free from the taint of unreasonableness and has substantially complied with norms of procedure set for it by rules of public administration.'' In Tata Cellular v. Union of India. [1994] 6 SCC 651, this Court again examined the scope of judicial review in the case of a tender awarded by a public authority for carrying out certain work. This Court acknowledged that the principles of judicial review can apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favouritism. However, there are inherent limitations in the exercise of that power of judicial review. The Court also observed that the right to choose cannot be considered as an arbitrary power. Of course, if this power is exercised for any collateral purpose, the exercise of that power will be struck down. \"Judicial quest in administrative matters has been to find the right balance between the administrative discretion to decide matters and the need to remedy any unfairness. Such an unfairness is set right by judicial review.\" After examining a number of authorities, the Court concluded (at page 687) as follows ;- (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. (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 or quasi-administrative sphere. However, the decision can be tested by the application of the \"Wednesbury principle\" of reasonableness and the decision should 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 arid unbudgeted expenditure. The same view has been reiterated in Asia Foundation & Construction Ltd v. Trafalgar House Construction (I) Ltd and Ors., [1997] 1 SCC 738, the court observing that judicial review of contractual transactions by Government bodies is permissible to prevent arbitrariness, favouritism or use of power for collateral purposes. This Court added a further dimension to the undesirability of intervention by pointing out that where the project is a high cost project for which loans from the World Bank or other international bodies have been obtained after following the specifications and procedure of such a body, it would be detrimental to public interest to interfere. The same principles have been also reaffirmed in New Horizons Limited and Anr. v. Union of India and Ors., [1995] 1 SCC 478 with this Court again emphasising the need to allow for certain flexibility in administrative decision-making, observing that the decision can be challenged only On the Wednesbury principle of unreasonableness i.e. unless the decision is so unreasonable that no sensible person would have arrived at such a decision, it should riot be upset. In Delhi Science Forum and Ors. v. Union of India and Anr., [1996] 2 SCC 405, this Court once again observed that if a reasonable procedure has been followed, the decision should not be challenged except on the Wednesbury principle of unreasonableness. Dealing with interim orders, this Court observed in Assistant Collector of Central Excise, Chandan Nagar, West Bengal v. Dunlop India Ltd. and Ors.,[ 1985] 2 SCR 190 at page 196 that an interim order should not be granted without considering balance of convenience, the public interest involved and the financial impact of an interim order. Similarly, in Ramniklal N. Bhutto and Anr: v. State of Maharashtra and Ors., [1997] 1 SCC 134, the Court said that while granting a Stay the court should arrive at a proper balancing of competing interests and grant a Stay only when there is an overwhelming public interest in granting it, as against the public detriment which may be caused by granting a Stay. Therefore, in granting an Injunction or Stay order against the award of a contract by the Government or a Government agency, the court has to satisfy itself that the public interest in holding up the project far out-weighs the public interest in carrying it out within a reasonable time. The court must also take into account the cost involved in staying the project and whether the public would stand to benefit by incurring such cost. Therefore, when such a Stay order is obtained at the instance of a private party or even at the instance of a body litigating in public interest, any interim order which stops the project from proceeding further, must provide for the reimbursement of costs to the public in case ultimately the litigation started by such an individual or body fails. The public must be compensated both for the delay in implementation of the project and the cost escalation resulting from such delay. Unless an adequate provision is made for this in the interim order, the interim order may prove counter- productive, In the present case it was submitted that the terms and conditions of the tender specified the requisite qualifying criteria before a person could offer a tender. The criteria which were so laid down could not have been relaxed because such a relaxation results in a denial of opportunity to others. In support, the respondents relied Upon Ramana Dayaram Shetty v. International Airport Authority of India and Ors., [1997] 3 SCC 489. In that case the Court had held judicial review as a check on the exercise of arbitrary powers by the State and as a check on its power to grant largess. the Court also observed that When the exercise of discretion is structured in terms of the tenders which have been invited the discretion must be exercised in accordance with the norms so laid down. The same view has been taken by this Court in Premium Granites and Anr. V. State of T.N. and Ors., [1994] 2 SCC 691, where this Court observed that where rational non- discriminatory norms have been laid down for granting of tenders, a departure from such norms can only be made on valid principles, These principles enunciated by this Court: are unexceptional. In the present case, however, the relaxation was permissible under the terms of the tender. The relaxation which the Board has granted to M/s Raunaq International Ltd. is on valid principles looking to the expertise of the tenderer and his past experience although it does not exactly tally with the prescribed criteria. What is more relevant, M/s IVR Construction Ltd. who have challenged this award of tender themselves do not fulfil the requisite criteria. They do not possess the prescribed experience qualification. Therefore, any judicial relief at the instance of a party which does not fulfil the requisite criteria, seems to be misplaced. Even if criteria can be relaxed both for-M/s Raunaq International Ltd. and M/s IVR Construction Ltd., it is clear that the offer of M/s Raunaq International Ltd. is lower and it is on this ground that the Board has accepted the offer of M/s Raunaq International Ltd. We fail-to see how the award of tender can be stayed at the instance of a party which does not fulfil the requisite criteria itself and whose offer is higher than the offer which has been accepted, It is also obvious that by stopping the performance of the contract so awarded, there is a major detriment to the public because the construction of two thermal power units, each of 210 MWs., is held up on account of this dispute. Shortages of power have become notorious. They also seriously affect industrial development and the resulting job opportunities for a large number of people. In the present case there is no overwhelming public interest in stopping the project. There is no allegation whatsoever of any mala fides or collateral reasons for granting the contract to M/s. Raunaq International Ltd. In our view the High Court has seriously erred in granting the interim order. The appeals are, therefore, allowed and the impugned order is set aside. M/s IVR Construction Ltd. shall pay to the appellants herein the costs of the appeals.",
        "51289111": "REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOs. 5384-5385 OF 2014 SEETHAKATHI TRUST MADRAS \u2026 Appellant Versus KRISHNAVENI \u2026Respondent JUDGMENT SANJAY KISHAN KAUL, J. Facts: 1. Land measuring 0.08 cents (100 cents = 1 acre) has seen a dispute spanning almost half a century. 2. One C.D. Veeraraghavan Mudaliar was the original owner of 120 acres of land comprising S.No.44 and 45 at No.18, Othivakkam Village, Chengalpattu Taluk. He entered into an agreement in October, 1959 to sell the Land in favour of Janab Sathak Abdul Khadar Sahib who Signature Not Verified intended to purchase the same on behalf of the appellant Trust for a sale Digitally signed by RASHI GUPTA Date: 2022.01.17 16:54:15 IST Reason: consideration of Rs.18,000. The appellant Trust was registered under the Societies Registration Act, 1860 originally and now regulated under the Tamil Nadu Societies Registration Act, 1975. The other story is what is set up by the Respondent who claimed that C.D. Veeraraghavan Mudaliar entered into an agreement of sale with her on 10.04.1961 for sale of 50 acres in patta No.61 and paimash No.987/1 of the Land. 3. It is the claim of the Appellant that C.D. Veeraraghavan Mudaliar had sold 50 acres out of 120 acres of land to one Niraja Devi on 16.11.1963 vide registered sale deed, who took possession of the said land and enjoyed the same. These 50 acres were bounded by a hillock in the east, land belonging to C.D. Veeraraghavan Mudaliar in the west, Government Reserve Forest in the north and Hasanapuram grazing ground and lake in the south. Niraja Devi sold the 50 acres of land to one Perumal Mudaliar vide registered sale deed dated 19.04.1964, who also took possession of the said land and enjoyed the same. As per the Appellant, Perumal Mudaliar sold the 50 acres of land to the Appellant Trust on 19.03.1968 vide a registered sale deed. 4. Insofar as the remaining 70 acres of land is concerned, C.D. Veeraraghavan Mudaliar and his son sold the same to the Appellant vide registered sale deed dated 19.3.1968. The said property is bounded by the land of Niraja Devi on the east, Kumuli Forest Line on the north, boundary line of Kannivakam Village on the west, and boundary line of Hasanapuram Village on the south. In respect of this 70 acres there is no dispute. History of the land dispute: 5. The Respondent filed a suit as O.S. No.31 of 1964 before the Principal Sub-Court, Chengalpattu for specific performance of the agreement dated 10.04.1964 against C.D. Veeraraghavan Mudaliar and his son, which was dismissed on 13.08.1964. The Respondent preferred an appeal against the said order, as A.S. No.366/65 before the District Judge, Changalpattu and the said appeal was also dismissed on 08.03.1966. However, the fate of the Respondent brightened in the second appeal, being S.A. No.1673 of 1966, before the High Court of Judicature at Madras, when they succeeded in terms of the judgment dated 07.07.1970 whereby specific performance of the agreement dated 10.04.1961 was decreed. The High Court inter alia held that time was not the essence of the contract and the land could be identified. In pursuance of the decree so passed in the second appeal, the Respondent filed for execution, being E.P. No.17 of 1976, before the Sub Court, Chengalpattu. The Sub-Court appointed the Taluk head surveyor as Commissioner for demarcation of 50 acres of land, who subsequently filed his interim and final reports. The Sub-Court purportedly executed the sale deed on 09.04.1981 through the officer of the Court and a delivery receipt dated 26.09.1981 was issued to Respondent. 6. The controversy insofar as the present case is concerned arose from a suit filed by the Respondent, being O.S. No.14 of 1984 before the Court of District Munsif, Chengalpattu against the Appellant praying for declaration of title and delivery in her favour to the extent of 0.08 cents of the land and delivery of the same. The suit was predicated inter alia on a rationale that the Respondent had taken possession of 50 acres by way of the execution proceedings, and that the Appellant had trespassed over 0.08 cents of the same. The suit was, however, dismissed on 07.09.1988 as the trial court formed an opinion that the Respondent cannot be said to have taken possession of 50 acres of land as the delivery receipt read that the delivery was effected by the Vetti. The crucial aspect is that the Respondent, who was the best person to speak about the delivery of 50 acres of land chose not to appear in the witness box. This proved fatal to her case as the manager of the Respondent who did appear in the witness box deposed that he was not authorised by the respondent to conduct the case. Thus, the case fell on the evidence led by the Respondent themselves. The testimony of the manager also became material as he admitted to possessing knowledge of the sale deed effected by C.D. Veeraraghavan Mudaliar in favour of Niraja Devi. The manager acknowledged that he was aware of the same through the corresponding encumbrance certificate before the filing of the suit in 1964, and also knew that Niraja Devi had sold 50 acres of land to Perumal Mudaliar. The subsequent purchaser, to the knowledge of the Respondent, was never impleaded as party in the suit nor did she seek to get the sale deeds cancelled. It is in view thereof it was opined that the Respondent was estopped from questioning the appellant\u2019s purchase. The plea of sale being hit by lis pendens was rejected and the appellant was held to have adverse possession of the land as confirmed by the Panchayat Board President, who appeared as a witness and deposed that the Appellant had been enjoying the land for more than 30 years. The Appellant had no knowledge of the earlier proceedings in respect of the suit for specific performance filed by the Respondent. 7. The Respondent preferred an appeal, being A.S. No.101 of 1998, before the Principal Sub Court, Chengalpet, which was dismissed on 28.03.2002. The dismissal was predicated on a dual finding, i.e., that the appellant was in adverse possession of the land, and as per Section 114(3) of the Indian Evidence Act, 1872 (hereinafter referred to as the \u2018Evidence Act\u2019) the expression \u201cmay be presumed\u201d showed that the court can infer the reality from available evidence and documents. The delivery receipt was found to be not a real document of delivery of possession, but of mere paper delivery. 8. The aggrieved Respondent filed a second appeal before the High Court of Judicature at Madras in S.A. No.1552 of 2003 claiming she was the absolute owner of land to the extent of 50 acres pursuant to the clear demarcation by the surveyor as well as the sale deed between her and C.D. Veeraraghava Mudaliar, which was executed on 09.04.1981 through the court process. The grievance against the Appellant was of trespass upon 0.08 cents of land, as a barbed wire fence and a gate had been put up on the same. It was Respondent\u2019s case that possession of the land had been taken over on 26.09.1981, and that the Appellant could not contend that he had title over the land by adverse possession. She professed ignorance of the sale in favour of Niraja Devi and Perumal Mudaliar as rationale for not impleading the Appellant, even though her manager had deposed to the contrary while she had not entered the witness box during the trial. 9. The Appellant claimed title to 50 acres including 0.08 cents and pointed out that Respondent\u2019s grievance was made only with respect to 0.08 cents. The Appellant Trust, in fact, claimed the ownership of entire 120 acres of land. It was contended that no proper delivery had ever been made as admitted by the amin and the possession was only a paper delivery without actual physical possession. No question of law was left to be determined as urged by the Appellant. 10. The High Court vide impugned judgment dated 06.01.2012, however, allowed the second appeal and set aside the judgments passed by the courts below on the ground that they did not properly appreciate the evidence particularly with respect to the execution proceedings. The delivery of 50 acres of land by the amin in accordance with the surveyor\u2019s plans was found to be proof of possession by the Respondent. Further, as per the surveyor\u2019s report, persons belonging to the appellant trust did endeavour to obstruct the possession proceedings but did not challenge the vires of the delivery proceedings. The plea of adverse possession was also rejected. Pleas of the Appellant before this Court: 11. Learned senior counsel for the appellant contended that no substantial question of law was framed by the High Court, which itself is a sine qua non of exercising jurisdiction under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as the \u2018said Code\u2019). The manner in which the High Court proceeded, it was urged, amounted to re-appreciating the evidence and disturbing the concurrent findings of the courts below. The High Court had proceeded into a fact-finding exercise, which was not within its jurisdiction under Section 100 of the said Code. 12. An aspect emphasised by learned counsel for the Appellant was that the Respondent chose not to depose in support of her own case, and the manager who deposed admitted that he had no power or authority to do so. The Respondent alone had knowledge of the alleged facts as appeared from the deposition of the manager and, thus, an adverse inference must be drawn against the Respondent in view of the judicial pronouncements in Vidyadhar v. Manikrao and Anr.1 and Man Kaur (Dead) by LRs v. Hartar Singh Sangha2. It has been held in these (1999) 3 SCC 573 (2010) 10 SCC 512 judicial pronouncements that if a party to a suit does not appear in the witness box to state their own case and does not offer themselves to be cross-examined by the other side, a presumption would arise that the case set up is not correct. The latter of the two judgments has discussed the earlier judgments and catena of other judicial views to the same effect and opined that a plaintiff cannot examine his attorney holder in his place, who did not have personal knowledge either of the transaction or of his readiness and willingness in a suit for specific performance. Thus, a third party who had no personal knowledge cannot give evidence about such readiness and willingness, even if he is an attorney holder of the person concerned. 13. The admission of the manager of the Respondent who appeared in the witness box acknowledging that the sale to Niraja Devi by a registered conveyance deed dated 16.11.1963 prior to the filing of the suit shows that the Respondent was aware of the further sale by Niraja Devi to Perumal Mudaliar by another registered sale deed and thereafter in favour of the Appellant. In such an eventuality, it was urged that the purchasers were necessary parties to the suit and a decree for specific performance obtained behind their back would be a nullity. This proposition was sought to be supported by a judgment of this Court in Lachhman Dass v. Jagat Ram and Ors. 3. In para 16 of the judgment, it has been opined that a party\u2019s right to own and possess a suit land could not have been taken away without impleading the affected party therein and giving an opportunity of hearing in the matter, as the right to hold property is a constitutional right in terms of Article 300-A of the Constitution of India. Thus, if a superior right to hold a property is claimed, procedure therefore must be complied with. In this context, it was urged that as per Section 3 of the Transfer of Property Act, 1882, a registered transaction operates as a notice to all concerned. In the present case, the first sale deed was already registered prior to the institution of the suit by the Respondent for specific performance. Thus, that decree could not be binding on the Appellant. 14. In the alternative, it was pleaded that the decree of specific performance was vitiated by a fraud with the purchaser of the property being deliberately not impleaded in the suit. A reference was made to Section 19(b) of the Specific Relief Act, 1963 (hereinafter referred to as the \u2018Specific Relief Act\u2019), which reads as under: \u201c19. Relief against parties and persons claiming under them by (2007) 10 SCC 448 subsequent title.\u2014Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against\u2014 xxxx xxxx xxxx xxxx (b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract;\u201d 15. Since Niraja Devi was a bona fide purchaser long prior to the institution of the suit for specific performance by the Respondent, specific performance could not be enforced against her or her transferees as they would fall within the exception of transferee for value who had paid money in good faith and without notice of the original contract. 16. Lastly it was sought to be urged that Section 114 of the Evidence Act in the factual context has not been correctly appreciated. The provision reads as under: \u201c114 Court may presume existence of certain facts. \u2014The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.\u201d 17. The aforesaid was in the context that the delivery effected was only a paper delivery and any infraction in effecting the delivery was not curable. The amin had not followed the prescribed procedure in delivering possession and the appellant had continued in possession for over 30 years. Moreover, the suit was only filed for 0.08 cents of land. Pleas of the Respondent before this Court: 18. On the other hand learned senior counsel for the respondent claimed that the Respondent and her daughter are quite old and do not have the wherewithal to pursue litigation. The litigation has been pending since 1961. It was urged that the appellant had title only to 70 acres of land and has trespassed into 0.08 cents of the land, which blocked the entrance to respondent\u2019s land. Thus, though the suit pertains only to a smaller extent of land it affected the enjoyment by the respondent of their possession over larger extent of the land. 19. Learned counsel urged that the trial court and the lower court had overlooked crucial and vital evidence and, thus, the High Court rightly exercised jurisdiction under Section 100 of the said Act. There was no question of impleading the appellant or the prior purchasers as parties as no issue had been framed in the suit in respect thereof. The presumption under Section 114(e) of the Evidence Act must arise and the appellant Trust was aware of the execution proceedings as some of the persons belonging to the appellant Trust are stated to have obstructed the Surveyor\u2019s entry when he went to demarcate the land as well as by the interim and final reports of the surveyor. The Trust never questioned the same at the time and cannot question it now. Conclusion: 20. We have given our thought to the aforesaid aspect. 21. We find that there are more than one infirmities which make it impossible for us to uphold the view taken by the High Court upsetting the concurrent findings of the courts below. 22. The first aspect to be taken note of is that the question of law ought to have been framed under Section 100 of the said Code. Even if the question of law had not been framed at the stage of admission, at least before the deciding the case the said question of law ought to have been framed. We may refer usefully to the judicial view in this behalf in Surat Singh (Dead) v. Siri Bhagwan and Ors. 4, wherein this Court has held that: \u201c29. The scheme of Section 100 is that once the High Court is satisfied that the appeal involves a substantial question of law, such question shall have to be framed under sub-section (4) of Section 100. It is the framing of the question which empowers the High Court to finally decide the appeal in accordance with the procedure prescribed under sub-section (5). Both the requirements prescribed in sub-sections (4) and (5) are, therefore, mandatory and have to be followed in the manner prescribed therein. Indeed, as mentioned (2018) 4 SCC 562 supra, the jurisdiction to decide the second appeal finally arises only after the substantial question of law is framed under sub-section (4). There may be a case and indeed there are cases where even after framing a substantial question of law, the same can be answered against the appellant. It is, however, done only after hearing the respondents under sub-section (5).\u201d 23. There is undoubtedly an element of dispute with respect to possession raised by the two parties qua their respective 50 acres. Insofar as 70 acres of land is concerned that undisputedly vests with the Appellant. The dispute sought to be raised by the Respondent does not pertain to 50 acres but only to 0.08 cents, a fraction of an acre (0.08 per cent of an acre). It may, however, be noticed that according to the Respondent the small area is important for the enjoyment purposes. 24. In our view, it is not necessary to go into the issue of adverse possession as both parties are claiming title. The crucial aspect is the decree obtained for specific performance by the Respondent and the manner of obtaining the decree. The Respondent was fully aware of the prior registered transaction in respect of the same property originally in favour of Niraja Devi. This is as per the deposition of her manager. In such a scenario it is not possible for us to accept that a decree could have been obtained behind the back of a bona fide purchaser, more so when the transaction had taken place prior to the institution of the suit for specific performance. Suffice to say that this view would find support from the judgments in Vidyadhar v. Manikrao5 and Man Kaur v. Hartar Singh Sangha6. 25. The second vital aspect insofar as the case of the Respondent is concerned is that the Respondent did not even step into the witness box to depose to the facts. It is the manager who stepped into the witness box that too without producing any proper authorisation. What he deposed in a way ran contrary to the interest of the Respondent as it was accepted that there was knowledge of the transaction with respect to the same land between third parties and yet the Respondent chose not to implead the purchasers as parties to the suit. Thus, the endeavour was to obtain a decree at the back of the real owners and that is the reason, at least, in the execution proceedings that the original vendor did not even come forward and the sale deed had to be executed through the process of the Court. The case of Niraja Devi and the subsequent purchasers including the Appellant would fall within the exception set out in Section 19(b) of the Specific Relief Act, being transferees who had paid money in good (supra) (supra) faith and without notice of the original contract. There are also some question marks over the manner in which the possession is alleged to have been transferred although we are not required to go into that aspect, as we are concerned with only 0.08 cents of land. 26. We are, thus, unequivocally of the view that for all the aforesaid reasons, the High Court ought not to have interfered with the concurrent findings of the trial court and the first appellate court. 27. The suit of the Respondent stands dismissed in terms of the judgment of the trial court and affirmed by the first appellate court and the impugned judgment of the High Court dated 06.01.2012 is consequently set aside. 28. The appeals are accordingly allowed leaving the parties to bear their own costs. ...\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026J. [Sanjay Kishan Kaul] ...\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026J. [M.M. Sundresh] New Delhi. January 17, 2022."
    },
    "fold_3": {
        "1128835": "REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.6580 OF 2008 ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO. 15449 OF 2004 ESSCO FABS PVT. LTD. & ANR. ... APPELLANTS VERSUS STATE OF HARYANA & ANR. ... RESPONDENTS WITH CIVIL APPEAL NO.6581 OF 2008 ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO. 15544 OF 2004 THE PANIPAT TEACHERS (RECOGNISED SCHOOLS)HOUSING CO-OPEATIVE SOCIETY LTD. & ANR. ... APPELLANTS VERSUS STATE OF HARYANA & ORS. ... RESPONDENTS WITH CONTEMPT PETITION NO. 30 OF 2007 IN CIVIL APPEAL NO.6580 OF 2008 ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO. 15449 OF 2004 ESSCO FABS PVT. LTD. & ANR. ... PETITIONERS VERSUS STATE OF HARYANA & ANR. ... RESPONDENTS J U D G M E N T C.K. THAKKER, J. 1. Leave granted. 2. Both these appeals are filed by the appellants being aggrieved and dissatisfied with the judgment and order dated April 02, 2004, passed by the High Court of Punjab & Haryana in Civil Writ Petition Nos. 1853 of 2003 and 2077 of 2002. 3. To appreciate the controversy raised in the present appeals, relevant facts in nutshell may be noted. 4. According to the appellant Essco Fabs Pvt. Ltd. (`Essco' for short), the Government of Haryana intended to acquire land for public purpose, viz., for utilization of land as residential, commercial and industrial area in Sector Nos. 11, 12 and 25 Part-II by Haryana Urban Development Authority (`HUDA' for short). For the said purpose, the Government issued a notification under sub-section (1) of Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as `the Act') on December 15, 1982. The land mentioned in the said notification situated in village Kheri Nangal was sought to be acquired. A final notification under Section 6 of the Act was issued on June 20, 1984. However, the land acquisition proceedings could not be completed within the stipulated period and the notifications lapsed and the land stood released. 5. It was the case of Essco that it bought the land which was sought to be acquired earlier for expansion of its Export Unit. According the appellant, it is engaged in manufacturing and exporting rugs, cushions, bed-spreads, bath mats, fabrics, kitchen towel, aprons, pot holders, gloves, mitten, curtains, napkins, carpets, etc. It is Export Oriented Unit and earns foreign exchange by export of goods manufactured in its unit. In the year 1992, it exported materials over Rs.2 crores. The appellant has stated that on June 6, 1991, it made an application to the Director, Town & Country Planning, Haryana for permission for change of user of land. All necessary documents were appended to the application. The Director, however, vide an order dated September 5, 1991, rejected the permission on several grounds. One of the grounds weighed with the Director for refusing the permission was that the land in question was proposed to be acquired. The appellant has produced a copy of the application as also an order of rejection thereof in the present proceedings. But even thereafter no proceedings for acquisition of land were initiated for many years. 6. On August 1, 2001 i.e. after about twenty years of the first notification of 1982 and nine years after rejection of prayer of the appellant for change of user, the Government of Haryana again issued notification under sub- section (1) of Section 4 of the Act for acquisition of land for the development and utilization for construction of road connecting Sanauli Road with G.T. Road for Sector 25 Part- II B, Urban Estate Panipat by HUDA. The land of the appellant situated in village Kheri Nangal was sought to be included in the notification. Moreover, `urgency clause' under Section 17 of the Act was applied and a valuable right of raising objections under Section 5-A of the Act was taken away in an arbitrary manner. On the very next day i.e. on August 2, 2001, final notification under Section 6 of the Act was issued by the Government. 7. It is the case of the appellant that the preliminary notification under sub-section (1) of Section 4 of the Act was required to be published in the manner laid down in the Act. But it had not been published before issuance of final notification under Section 6 of the Act. The final notification was, therefore, illegal and the appellant could not be deprived of his property in a manner not known to law. The right of the appellant to own, possess and enjoy the property is not merely a Common Law right but also constitutional right under Article 300A of the Constitution which has a `flavour of fundamental right'. The acquisition proceedings, being not in consonance with law were vitiated and liable to be quashed. 8. The appellant, hence, filed Civil Writ Petition No. 1853 of 2003 in the High Court of Punjab & Haryana by invoking Article 226 of the Constitution praying therein for quashing and setting aside acquisition proceedings. The High Court entertained the petition and granted status quo with regard to possession of the land in question. Finally, however, by the impugned judgment it dismissed the petition. The said order is challenged by the appellant in this Court. 9. The other appeal is filed by the Panipat Teachers (Recognized Schools) Housing Co-operative Society Ltd. (`society' for short) challenging the acquisition proceedings. It was the case of the society that pursuant to the representation made by the society, the State Government released 53 kanals and 8 marlas of land by executing an agreement dated October 19, 1985 and by granting land in favour of the society on conditions mentioned in the agreement. Possession of land was handed over to the society. The land was demarcated and was carved out into plots reserving requisite space for school, parks, temple, overhead water tank, roads, green belt etc. The society got the site plan designed strictly in accordance with HUDA Rules. The society invested huge amount, approximately Rs.26 lakhs, for developing the land laying down sewer pipe lines, RCC Water pipe lines, construction of roads and boundary walls etc. The site plan, however, has not been cleared by the office of the Director, Town & Country Planning, Haryana despite numerous attempts by the appellant-society. It is alleged by the society that the matter was kept pending for oblique and ulterior purposes on lame and untenable excuses. It is also stated by the society that HUDA published public notice in `Daily Bhaskar' dated November 10, 2000 demanding development charges thereby acknowledging that the society's land has been rightly developed for teachers' colony. The public notice informed and instructed those land/plot owners who were in arrears to pay all the balance development charges and outstanding dues. No dues were shown as against the appellant-society. Thus, there is nothing due and payable to HUDA by the appellant. 10. Ignoring all these material facts and with a view to cause serious prejudice to the appellant-society, a notification under sub- section (1) of Section 4 of the Act had been issued by the State for acquisition of land. 11. We have already stated facts relating to the issuance of preliminary notification, application of urgency clause under Section 17 and issuance of final notification under Section 6 of the Act while narrating the facts in the first case of Essco. It is, therefore, not necessary to repeat all those facts in the second matter. 12. The appellant-society, in the circumstances, approached the High Court by filing Civil Writ Petition No. 2077 of 2002 which was also decided along with the petition of Essco and the petition of the appellant- society also came to be dismissed. 13. Third writ petition (Civil Writ Petitin No. 3324 of 2003) was filed by M/s Lord Shiva Exports, Panipat which also met with the same fate. Lord Shiv Exports, however, has not approached this Court. 14. Notices were issued by this Court and interim relief was granted. Respondents thereafter appeared, affidavits and further affidavits were filed and the matters were ordered to be posted for final hearing. That is how the matters are before us. 15. We have heard learned counsel for the parties. 16. The learned counsel for the appellants Essco and Teachers' society have challenged the acquisition on several grounds. It was contended that the land was not needed for public purpose as set out in the notification of 2001 and, hence, the acquisition is not legal or lawful. Moreover, initially an action was taken for acquisition of land before more than a quarter century in the year 1982. Final notification was also issued after more than one and half year of preliminary notification, but even thereafter, nothing was done by the State and the proceedings lapsed. Again, in 1991, when Essco applied for change of user of land, the prayer was turned down, inter alia, on the ground that the land in question was proposed to be acquired for public purpose. Nothing was done by the State for about a decade. Only in August, 2001, notification under Section 4 was issued. It was strongly urged by the learned counsel for the appellants that preliminary notification was issued on August 1, 2001 and urgency clause was applied though there was no urgency at all. The notification was published in the official gazette thereafter and in two daily newspapers on August 10 and 12, 2001. Final notification under Section 6, however, was issued immediately on the next day i.e. on August 2, 2001, of the issuance of preliminary notification under sub-section (1) of Section 4. It was contended that on the facts of the case, no urgency clause could have been invoked. Even otherwise, the action was bad and de hors the Act since the conditions laid down in sub-section (4) of Section 17 of the Act have not been complied with inasmuch as there was neither grave urgency nor unforeseen emergency. It was submitted that there was lethargy on the part of officers of the Government in not taking steps for more than twenty years. The State cannot take undue advantage of its negligence or inaction and deprive the owners of their right to property in purported exercise of power of eminent domain. The Act is an expropriatory legislation which deprives a person of his property without his consent. The provisions of the Act, hence, have to be construed strictly. It was submitted that Section 5A confers a valuable right on the owners of land of submitting objections against proposed acquisition and such right cannot be taken away or curtailed by the State. On the facts of the case, invocation of urgency clause was not only uncalled for being contrary to law but otherwise arbitrary and unreasonable and on that ground also, the proceedings are liable to be quashed. It was urged that the expression `the date of publication' has been defined in sub-section (1) of Section 4 of the Act. While construing the said connotation under Section 17, same meaning as contemplated under Section 4(1) has to be given. Since the final notification under Section 6 had not been published as required by the Act after `the last date of publication' of notification under Section 4(1), the action is unlawful and is liable to be set aside. It was asserted that no notice as required by Section 9 of the Act had been issued nor payment of 80 percent of the compensation as required by sub-section (3A) of Section 17 had been paid. There was also total non-application of mind on the part of the State Government in not considering the Government policy of granting exemption to functional units dealing with handloom and other industries. On that count also, the proceedings are liable to be dropped. 17. On behalf of Teachers' Society, the learned counsel adopted all the contentions raised on behalf of Essco. The learned counsel, however, further submitted that the society prayed for allotment of land and the prayer was granted. An agreement was entered into between the Authority and the society, possession of land was handed over to the society, which has spent substantial amount of several lakhs for development. Necessary permission was sought so that construction can be made which was also granted by the Authorities, requisite charges which were to be paid had already been paid and no dues had been shown so far as the appellant- society is concerned and yet the impugned action has been taken mala fide and with ulterior motive though the land is not required for public purpose. It was also submitted that even according to the authorities, the land of the appellant-society does not come in `road line'. It is situate at about 24 meters away (23.94 meters) from road line. It was, therefore, submitted that the proceedings should be declared against the provisions of law and may be quashed. 18. Learned counsel for the respondents, on the other hand, submitted that the action of the authorities is legal, lawful and in consonance with law. It was urged that the land was required for public purpose, viz., for construction of road. For acquisition of land, therefore, a notification was issued. It was submitted that there is no element of mala fide or colourable exercise of power which is clear form the fact that even in early eighties, the land was sought to be acquired. Since the proceedings could not be completed within the stipulated period, they lapsed. That, however, does not mean that the land was not needed for public purpose or that the public purpose disappeared or vanished. The counsel submitted that it was further clear when the prayer of Essco for change of user of land in 1991 was rejected. The applicant was told at that time also that the land was required for public purpose. According to the counsel, Government machinery took some time but it cannot be concluded that the land was not required by the State and only with a view to deprive the appellants of their ownership rights acquisition proceedings had been initiated. 19. Regarding notification of August 1, 2001 and August 2, 2001 under Sections 4 and 6 of the Act respectively, it was submitted that both the notifications were in consonance with law. A preliminary notification under sub- section (1) of Section 4 of the Act was issued showing the intention of the State for acquisition of land for public purpose. Since the acquisition was for construction of road, it was covered by Section 17 of the Act and urgency clause was rightly invoked and in exercise of power under sub-section (4) of Section 17, inquiry contemplated by Section 5A of the Act had been dispensed with. The action was in consonance with law and no grievance can be made contending that the inquiry as contemplated by Section 5A and hearing of objections were illegally dispensed with by the authorities. All actions were consistent with the provisions of the Act and the appellants have no right to make complaint against those actions. It was, therefore, submitted that the High Court was wholly right in dismissing the writ petitions and the appeals have no substance. 20. Before we deal with the matter on merits, it would be appropriate if we notice the relevant provisions of the Act. As the Preamble shows, the Act has been enacted with a view \"to amend the law for the acquisition of land for public purposes (and for Companies)\". Section 3 is a `definition clause' of various expressions used in the Act. Clause (f) defines `public purpose' and the definition is `inclusive' in nature. Purposes mentioned in Clauses (i) to (viii) are in the nature of `public purpose' and the land can be acquired for any such purpose. Part II (Sections 4 to 17) deals with `Acquisition'. Section 4 enables the appropriate Government to issue preliminary notification for acquisition of land needed or likely to be needed for public purposes. The said section is relevant and reads thus; Section 4 - Publication of preliminary notification and powers of officers thereupon-- (1) Whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose or for a company a notification to that effect shall be published in the Official Gazette 1[and in two daily newspapers circulating in that locality of which at least one shall be in the regional language and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality 1[the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of publication of the notification. (2) Thereupon it shall be lawful for any officer, either, generally or specially authorised by such Government in this behalf, and for his servants and workmen,-- to enter upon and survey and take levels of any land in such locality; to dig or bore in the sub-soil; to do all other acts necessary to ascertain whether the land is adapted for such purpose; to set out the boundaries of the land proposed to be taken and the intended line of the work (if any) proposed to be made thereon; to mark such levels, boundaries and line by placing marks and cutting trenches, and, where otherwise the survey cannot be completed and the levels taken and the boundaries and line marked, to cut down and clear away any part of any standing crop, fence or jungle: Provided that no person shall enter into any building or upon any enclosed court or garden attached to a dwelling-house (unless with the consent of the occupier thereof) without previously giving such occupier at least seven days' notice in writing of his intention to do so. 21. Section 5A is a salutary provision and enables any person interested in the land which is notified under sub-section (1) of Section 4 as being needed or likely to be needed for a public purpose to lodge objections against the proposed acquisition. It is equally important provision and may be reproduced' Section 5A - Objections : Hearing of objections--(1) Any person interested in any land which has been notified under section 4, Sub-section (1), as being needed or likely to be needed for a public purpose or for a company may, within thirty days from the date of the publication of the notification, object to the acquisition of the land or of any land in the locality, as the case may be. (2) Every objection under sub-section (1) shall be made to the Collector in writing, and the Collector shall give the objector an opportunity of being heard in person or by any person authorised by him in this behalf or by pleader and shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, either make a report in respect of the land which has been notified under section 4, sub-section (1), or make different reports in respect of different parcels of such land, to the appropriate Government, containing his recommendations on the objections, together with the record of the proceedings held by him, for the decision of that Government. The decision of the Appropriate Government on the objections shall be final. (3) For the purposes of this section, a person shall be deemed to be interested in land who would be entitled to claim an interest in compensation if the land were acquired under this Act. 22. Then comes Section 6 which authorizes the appropriate Government to issue final notification as to declaration that the land is required for public purpose. The said section is also material and reads as under; 6. Declaration that land is required for a public purpose.-(1) Subject to the provisions of Part VII of this Act, when the Appropriate Government is satisfied after considering the report, if any, made under section 5A, sub-section (2), that any particular land is needed for a public purpose, or for a company, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorised to certify its orders an different declarations may be made from time to time in respect of different parcels of any land covered by the same notification under section 4, sub-section (!), irrespective of whether one report or different reports has or have been made (wherever required) under section 5-A, sub-section (2): Provided that no declaration in respect of any particular land covered by a notification under section 4, sub-section (1),-- (i) published after the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967 but before the commencement of the Land Acquisition (Amendment) Act, 1984 shall be made after the expiry of three years from the date of the publication of the notification; or (ii) published after the commencement of the Land Acquisition (Amendment) Act, 1984, shall be made after the expiry of one year from the date of the publication of the notification: Provided further that no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a company, or wholly or partly out of public revenues or some fund controlled or managed by a local authority. Explanation 1.-In computing any of the periods referred to in the first proviso, the period during which any action or proceeding to be taken in pursuance of the notification issued under Section 4, sub-section (1), is stayed by an order of a Court shall be excluded. Explanation 2.-Where the compensation to be awarded for such property is to be paid out of the funds of a corporation owned or controlled by the State, such compensation shall be deemed to be compensation paid out of public revenues. (2) Every declaration shall be published in the Official Gazette, and in two daily newspapers circulating in the locality in which the land is situate of which at least one shall be in the regional language, and the Collector shall cause public notice of the substance of such declaration to be given at convenient places in the said locality (the last of the date of such publication and the giving of such public notice, being hereinafter referred to as the date of publication of the declaration), and such declaration shall state] the district or other territorial division in which the land is situate, the purpose for which it is needed, its approximate area, and where a plan shall have been made of the land, the place where such plan may be inspected. (3) The said declaration shall be conclusive evidence that the land is needed for a public purpose or for a Company, as the case may be; and, after making such declaration the Appropriate Government may acquire the land in manner hereinafter appearing. 23. Section 9 requires issuance of notice to persons interested. Section 11 requires enquiry to be made and award to be passed by Collector. Section 16 authorises the Collector to take possession of the land acquired under the Act. Thereupon, the land vests absolutely in the Government free from all encumbrances. 24. Section 17 is an exception to the normal rule of acquisition of land and deals with cases of urgency and emergency. The provision is of extreme importance and may be quoted in extenso. 17. Special powers in cases of urgency.-(1) In cases of urgency, whenever the Appropriate Government so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in section 9, sub-section (1), take possession of any waste or arable land needed for a public purpose]. Such land shall thereupon vest absolutely in the Government, free from all encumbrances. (2) Whenever, owing to any sudden change in the channel of any navigable river or other unforeseen emergency, it becomes necessary for any Railway administration to acquire the immediate possession of any land for the maintenance of their traffic or for the purpose of making thereon a river-side or ghat station, or of providing convenient connection with or access to any such station, or the appropriate Government considers it necessary to acquire the immediate possession of any land for the purpose of maintaining any structure or system pertaining to irrigation, water supply, drainage, road communication or electricity,] the Collector may, immediately after the publication of the notice mentioned in sub-section (1) and with the previous sanction of the appropriate Government, enter upon and take possession of such land, which shall thereupon vest absolutely in the Government free from all encumbrances. Provided that the Collector shall not take possession of any building or part of a building under this sub- section without giving to the occupier thereof at least forty-eight hours' notice of his intention so to do, or such longer notice as may be reasonably sufficient to enable such occupier to remove his movable property from such building without unnecessary inconvenience. (3) In every case under either of the preceding sub-sections the Collector shall at the time of taking possession offer to the persons interested, compensation for the standing crops and trees (if any) on such land and for any other damage sustained by them caused by such sudden dispossession and not excepted in section 24; and, in case such offer is not accepted, the value of such crops and trees and the amount of such other damage shall be allowed for in awarding compensation for the land under the provisions herein contained. (3A) Before taking possession of any land under sub-section (1) or sub- section (2), the Collector shall, without prejudice to the provisions of sub-section (3),- (a) tender payment of eighty per centum of the compensation for such land as estimated by him to the persons interested entitled thereto, and (b) pay it to them, unless prevented by some one or more of the contingencies mentioned in section 31, sub-section (2), and where the Collector is so prevented, the provisions of section 31, sub-section (2), (except the second proviso thereto), shall apply as they apply to the payment of compensation under that section. (3-B) The amount paid or deposited under sub-section (3A), shall be taken into account for determining the amount of compensation required to be tendered under section 31, and where the amount so paid or deposited exceeds the compensation awarded by the Collector under section 11, the excess may, unless refunded within three months from the date of the Collector's award, be recovered as an arrear of land revenue. (4) In the case of any land to which, in the opinion of the appropriate Government, the provisions of sub- section (1) or sub-section (2) are applicable, the appropriate Government may direct that the provisions of section 5A shall not apply, and, if it does not so direct, a declaration may be made under section 6 in respect of the land at any time after the date of the publication of the notification under section 4, sub-section (1). 25. Whereas Part III relates to `Reference to Court and procedure thereon', Parts IV and V deal with `Apportionment of compensation' and `Payment', respectively. 26. It is vehemently contended on behalf of the appellants that on the facts and in the circumstances of the case, the respondents could not have invoked `urgency clause' by scuttling enquiry and dispensing with hearing of objections under Section 5A of the Act. It was submitted that no action could have been taken in view of the circumstances mentioned earlier. As early as in 1982 proceedings were initiated for acquisition of land but they were allowed to be lapsed in spite of final notification under Section 6 of the Act by not taking appropriate actions in time. Again, in 1991, when Essco Fabs applied for change of user of land, request was turned down on the ground that the land was likely to be needed for public purpose. It was, therefore, submitted that when preliminary notification under Section 4 was issued in 2001, there was no urgent need or compelling necessity nor it was a matter of urgency or emergency under Section 17 of the Act which could justify the action and the proceedings are liable to be quashed. 27. We find considerable force in the above argument of the learned counsel for the appellants. The scheme of the Act is clear which provides for issuance of preliminary notification under sub-section (1) of Section 4 of the Act empowering the appropriate Government to issue such notification for acquisition of land needed or likely to be needed for any public purpose. Since the property belongs to a private individual, unless there is a `public purpose' as defined in clause (f) of Section 3 of the Act, no acquisition of land can be made. It is in exercise of power of eminent domain that a sovereign may acquire property which does not belong to him. In the circumstances, as a general rule, before exercise of power of eminent domain, law must provide an opportunity of hearing against the proposed acquisition. Even without a specific provision to that effect, general law requires raising of objections by and affording opportunity of hearing to the owner of the property. The Land Acquisition (Amendment) Act, 1923 (Act 38 of 1923), however, expressly made such provision by inserting Section 5A in the Act. It is, therefore, clear that after issuance of preliminary notification under Section 4 before and final notification under Section 6 of the Act, the appropriate Government is enjoined to hear persons interested in the property before he is deprived of his ownership rights. But then there may be cases of `urgency' or `unforeseen emergency' which may brooke no delay for acquisition of such property in larger public interest. The Legislature, therefore, thought it appropriate to deal with such cases of exceptional nature and in its wisdom enacted Section 17. 28. Whereas sub-section (1) of Section 17 deals with cases of `urgency', sub-section (2) of the said section covers cases of `sudden change in the channel of any navigable river or other unforeseen emergency'. But even in such cases i.e. cases of `urgency' or `unforeseen emergency', enquiry contemplated by Section 5A cannot ipso facto be dispensed with which is clear from sub-section (4) of Section 17 of the Act. 29. Sub-section (4) of Section 17 is an enabling provision and it declares that if in the opinion of the appropriate Government, the provisions of sub-section (1) or (2) are applicable, it may direct that the provisions of Section 5A would not apply. It is, therefore, clear that the Legislature has contemplated that there may be `urgencies' or `unforeseen emergencies' and in such cases, private properties may be acquired. But, it was also of the view that normally even in such cases, i.e. cases of urgencies or unforeseen emergencies, the owner of property should not be deprived of his right to property and possession thereof without following proper procedure of law as contemplated by Section 5A of the Act unless the urgency or emergency is of such a nature that the Government is convinced that holding of enquiry or hearing of objections may be detrimental to public interest. 30. In this connection, both the parties invited our attention to several decisions. We will deal with some of the important decisions. 31. In Nandeshwar Prasad & Anr. V. State of Uttar Pradesh & Ors, (1964) 3 SCR 425, the land was acquired by the Government for public purpose, viz. the Kanupur Development Board under the Kanpur Urban Area Development Act, 1945. The Court considered the scheme of the Act that after issuance of preliminary notification under Section 4 of the Act, objections are to be heard under Section 5A of the persons interested in the property and thereafter final notification under Section 6 can be issued. The Court, however, noted that to that procedure, there is an exception under Section 17 which enables the Government to apply urgency clause. Where an action is taken under sub-section (4) of Section 17 of the Act, it is not necessary to follow procedure laid down in Section 5A and notification under Section 6 can be issued without report from the Collector as envisaged by Section 5A. 32. The Court stated; \"It will be seen that s. 17(1) gives power to the Government to direct the Collector, though no award has been made under s. 11, to take possession of any waste or arable land needed for public purpose and such land thereupon vests absolutely in the Government free from all encumbrances. If action is taken under s. 17(1), taking possession and vesting which are provided in s. 16 after the award under s. 11 are accelerated and can take place fifteen days after the publication of the notice under s.9. Then comes s. 17(4) which provides that in case of any land to which the provisions of sub-s. (1) are applicable, the Government may direct that the provisions of s. 5-A shall not apply and if it does so direct, a declaration may be made under s. 6 in respect of the land at any time after the publication of the notification under s. 4(1). It will be seen that it is not necessary even where the Government makes a direction under s. 17(1) that it should also make a direction under s. 17(4). If the Government makes a direction only under s. 17(1) the procedure under s. 5-A would still have to be followed before a notification under s. 6 is issued, though after that procedure has been followed and a notification under s. 6 is issued the Collector gets the power to take possession of the land after the notice under s. 9 without waiting for the award and on such taking possession the land shall vest absolutely in Government free from all encumbrances. It is only when the Government also makes a declaration under s. 17(4) that it becomes unnecessary to take action under s. 5-A and make a report thereunder. It may be that generally where an order is made under s.17(1), an order under s. 17(4) is also passed; but in law it is not necessary that this should be so. It will also be seen that under the Land Acquisition Act an order under s. 17 (1) or s. 17(4) can only be passed with respect to waste or arable land and it cannot be passed with respect to land which is not waste or arable and on which buildings stand\". (emphasis supplied) 33. From the above observations, it is clear that even in cases falling under or covered by sub-sections (1) and (2) of Section 17 of the Act and the Government intends to acquire land in cases of `urgency' or `unforeseen emergency', it is still required to follow procedure under Section 5A of the Act before issuance of final notification under Section 6 of the Act. It is only when the Government also makes a declaration under sub- section (4) of Section 17 that it becomes unnecessary to take recourse to procedure under Section 5A of the Act. 34. Nandeshwar Prasad was decided by a three Judge Bench. 35. Recently, in Union of India & Ors. v. Mukesh Hans, (2004) 8 SCC 14, a similar question came up for consideration before a three Judge Bench. There land was sought to be acquired at Mehrauli by the appropriate Government for organizing Anjuman-Saire-e-Gul- Faroshan. Proceedings were initiated under the Act and urgency clause was applied. The notification mentioned the public purpose as `Planned Development of Delhi'. It was also stated that Lt. Governor was of the opinion that Section 17(1) of the Act was applicable to the acquisition and he directed to dispense with inquiry under Section 5A of the Act. Simultaneously, a declaration under Section 6 was issued. Intrested parties approached the High Court of Delhi, inter alia, on the ground that decision to dispense with inquiry contemplated by Section 5A of the Act was vitiated by non-application of mind. The High Court upheld the contention and quashed the proceeding. The aggrieved Union approached this Court. 36. It was contended on behalf of the Union that in case of urgency, it was open to the appropriate Government to dispense with inquiry under Section 5A by invoking sub- section (4) of Section 17 of the Act. It was also contended that the urgency contemplated by sub-sections (1) or (2) of Section 17 of the Act was `by itself' sufficient to invoke sub- section (4) of Section 17. 37. Negativing the contention and referring to Nandeshwar Prasad and other judgments, the Court held; \"A careful perusal of the above Section shows that Sub-section (1) of Section 17 contemplates taking possession of the land in the case of an urgency without making an award but after the publication of Section 9(1) notice and after the expiration of 15 days of publication of Section 9(1) notice. Therefore it is seen that if the appropriate Government decides that there is an urgency to invoke Section 17(1) in the normal course Section 4(1) notice will have to be published, Section 6 declaration will have to be made and after completing the procedure contemplated under Sections 7 and 8, 9 (1) notice will have to be given and on expiration of 15 days from the date of such notice the authorities can take possession of the land even before passing of an award. Sub-section (2) of Section 17 contemplates a different type of urgency inasmuch as it should be an unforeseen emergency. Under this Section if the appropriate Government is satisfied that there is such unforeseen emergency the authorities can take possession of the land even without waiting fort 15 days period contemplated under Section 9(1). Therefore, in cases, where Government is satisfied that mere is an unforeseen emergency it will have to in the normal course, issue a Section 4(1) notification, hold 5A inquiry, make Section 6 declaration, and issue Section 9(1) notice and possession can be taken immediately thereafter without waiting for the period of 15 days prescribed under Section 9(1) of the Act. Section 17(4) as noticed above provides that in cases where the appropriate Government has come to the conclusion that there exists an urgency or unforeseen emergency as required under Sub-sections (1) or (2) of Section 17 it may direct that the provisions of Section 5A shall not apply and if such direction is given then 5A inquiry can be dispensed with and a declaration may be made under Section 6 on publication of 4(1) notification possession can be made\". 38. The Court, therefore, proceeded to state; \"A careful perusal of this provision which is an exception to the normal mode of acquisition contemplated under the Act shows mere existence of urgency or unforeseen emergency though is a condition precedent for invoking Section 17(4) that by itself is not sufficient to direct the dispensation of 5A inquiry. It requires an opinion to be formed by the concerned government that along with the existence of such urgency or unforeseen emergency there is also a need for dispensing with 5A inquiry which indicates that the Legislature intended that the appropriate government to apply its mind before dispensing with 5A inquiry. It also indicates the mere existence of an urgency under Section 17(1) or unforeseen emergency under Section 17(2) would not by themselves be sufficient for dispensing with 5A inquiry. If that was not the intention of the Legislature then the latter part of Sub-section (4) of Section 17 would not have been necessary and the Legislature in Section 17(1) and (2) itself could have incorporated that in such situation of existence of urgency or unforeseen emergency automatically 5A inquiry will be dispensed with. But then that is not language of the Section which in our opinion requires the appropriate Government to further consider the need for dispensing with 5A inquiry in spite of the existence of unforeseen emergency. This understanding of ours as to the requirement of an application of mind by the appropriate Government while dispensing with 5A inquiry does not mean mat in and every case when there is an urgency contemplated under Section 17(1) and unforeseen emergency contemplated under Section 17(2) exists that by itself would not contain the need for dispensing with 5A inquiry. It is possible in a given case the urgency noticed by the appropriate Government under Section 17(1) or the unforeseen emergency under Section 17(2) itself may be of such degree that it could require the appropriate Government on that very basis to dispense with the inquiry under Section 5A but then there is a need for application of mind by the appropriate Government that such an urgency for dispensation of the 5A inquiry is inherent in the two types of urgencies contemplated under Section 17 (1) and (2) of the Act\". 39. The learned counsel for the respondent authorities, however, strongly relied upon a two Judge Bench decision of this Court in Jai Narain & Ors. v. Union of India & Ors., (1996) 1 SCC 9. In Jai Narain, the Court held that the question of `urgency' or `unforeseen emergency' is the mater which is entirely based on `subjective satisfaction of the Government' and the Courts do not interfere unless the reasons given are wholly irrelevant and there is non- application of mind. If the public purpose, on the face of it shows that the land is needed urgently, that by itself is relevant circumstance for justifying the action under Section 17(4) of the Act. 40. Again, a similar view was taken by a two Judge Bench in Chameli Singh & Ors., v. State of U.P. & Anr., (1996) 2 SCC 549. In Chameli Singh, land was acquired for public purpose, namely, construction of houses for dalits. Urgency clause under Section 17 was applied which was challenged by the land- owners. Holding that the urgency clause was rightly applied and inquiry under Section 5A of the Act has been correctly dispensed with, the Court observed that acquisition of land for providing houses to dalits, tribes and poor would be sufficient to invoke Section 17 of the Act and the land-owners cannot challenge the validity of such acquisition on the ground that inquiry under Section 5A cannot be dispensed with. 41. The Court stated; \"It would thus be seen that this Court emphasised the holding of an inquiry on the facts peculiar to that case. Very often the officials, due to apathy in implementation of the policy and programmes of the Government, themselves adopt dilatory tactics to create cause for the owner of the land to challenge the validity or legality of the exercise of the power to defeat the urgency existing on the date of taking decision under Section 17(4) to dispense with Section 5-A inquiry. It is true that there was pre- notification and post-notification delay on the part of the officers to finalise and publish the notification. But those facts were present before the Government when it invoked urgency clause and dispensed with inquiry under Section 5A. As held by this Court, the delay by itself accelerates the urgency: Larger the delay, greater be the urgency. So long as the unhygienic conditions and deplorable housing needs of Dalits, Tribes and the poor are not solved or fulfilled, the urgency continues to subsist When the Government on the basis of the material, constitutional and international obligation, formed its opinion of urgency, the Court, not being an appellate forum, would not disturb the finding unless the court conclusively finds the exercise of the power male fide. Providing house sites to the Dalits, Tribes and the poor itself is a national problem, and a constitutional obligation. So long as the problem is not solved and the need is not fulfilled, the urgency continues to subsist. The State is expending money to relieve the deplorable housing condition in which they live by providing decent housing accommodation with better sanitary conditions. The lethargy on the part of the officers for pre and post-notification delay would not render the exercise of the power to invoke urgency clause invalid on that account\". 42. In First Land Acquisition Collector & Ors., v. Nirodhi Prakash Gangoli & Anr., (2002) 4 SCC 160, a two Judge Bench again observed that case of existence of urgency under Section 17 of the Act is a matter of subjective satisfaction of appropriate Government and a decision of Government to dispense with inquiry under Section 5A by invoking urgency provision can be challenged only on the ground of non- application of mind or mala fide exercise of power by the Government. Burden is always on the person alleging mala fide to prove it on the basis of specific materials. So long as the purpose of acquisition continues to exist, exercise of power under Section 17 cannot be held to be mala fide. Mere delay of the Government subsequent to its decision to dispense with inquiry under Section 5A by exercising power under Section 17 would not invalidate the decision. 43. On the basis of above decisions, it was submitted that once a decision has been taken by the State Government to apply urgency clause, the decision of the Government cannot be interfered with by a Court exercising writ jurisdiction. 44. In our judgment, from the above case law, it is clear that normal rule for acquisition of land under the Act is issuance of notification under sub-section (1) of Section 4, hearing of objections under Section 5A and issuance of final notification under Section 6 of the Act. Award will be made by the Collector, notice has to be issued to the land- owners or the person interested and thereafter possession can be taken. Section 17, no doubt, deals with special situations and exceptional circumstances covering cases of `urgency' and `unforeseen emergency'. In case of `urgency' falling under sub-section (1) of Section 17 or of `unforeseen emergency' covered by sub-section (2) of Section 17, special powers may be exercised by appropriate Government but as held by a three Judge Bench decisions before more than four decades in Nandeshwar Prasad and reiterated by a three Judge Bench decision in Mukesh Hans, even in such cases, inquiry and hearing of objections under Section 5A cannot ipso facto be dispensed with unless a notification under sub-section (4) of Section 17 of the Act is issued. The legislative scheme is amply clear which merely enables the appropriate Government to issue such notification under sub- section (4) of Section 17 of the Act dispensing with inquiry under Section 5A if the Government intends to exercise the said power. The use of the expression `may' in sub-section (4) of Section 17 leaves no room of doubt that it is discretionary power of the Government to direct that the provisions of Section 5A would not apply to such cases covered by sub-section (1) or (2) of Section 17 of the Act. 45. In our opinion, therefore, the contention of learned counsel for the respondent authorities is not well founded and cannot be upheld that once a case is covered by sub-section (1) or (2) of Section 17 of the Act, sub-section (4) of Section 17 would necessarily apply and there is no question of holding inquiry or hearing objections under Section 5A of the Act. Acceptance of such contention or upholding of this argument will make sub-section (4) of Section 17 totally otiose, redundant and nugatory. 46. It is true that in Chameli Singh and Jai Narain, a two Judge Bench has observed that acquisition of land for housing accommodation or for construction of residential quarters for dalits and tribals can be said to be of an urgent nature falling under Section 17(1) of the Act. But as already held in Nandeshwar Prasad and Mukesh Hans, even in such cases, procedure required to be followed under Section 5A cannot be dispensed with unless notification under sub-section (4) of Section 17 is issued. In Mukesh Hans, the Court also held that the provision cannot be pressed in service by officers who were negligent and due to their lethargy, proceedings could not be initiated for a quite long time. 47. In the instant case, the facts are eloquent. Initial action of acquisition of land was taken as early as in 1982 but the proceedings lapsed. In 1991, when Essco made an application praying for change of user of land, it was rejected on the ground that the land was likely to be required for public purpose. Nothing, however, was done for about a decade. It is only in 2001 that again Notification under Section 4 was issued and urgency clause was applied. We are, therefore, satisfied that the ratio lad down in Mukesh Hans squarely applies to the facts of the case. No urgency clause could have been invoked by the respondents and inquiry and hearing of objections provided by Section 5A of the Act could not have been dispensed with. The actions of issuance of urgency clause under sub-section (4) of Section 17, dispensing with inquiry under Section 5A and issuance of final notification under sub-section (1) of Section 6 are required to be quashed and they are accordingly quashed. 48. The learned counsel for the appellant also contended that even if it is held that the respondent could have issued final notification without holding inquiry and hearing of objections under Section 5A of the Act, the notification under Section 6 of the Act is illegal and unlawful in view of the fact that the said notification has not been issued after the last of the dates of the publication and giving of public notice referred to as \"the date of publication of the notification\" under sub-section (1) of Section 4 of the Act. 49. It was submitted that even the said point is concluded by a decision of this Court in State of Uttar Pradesh & Ors. v. Radhey Shyam Nigam & Ors, (1989) 1 SCC 591. 50. The learned counsel for the respondents, on the other hand, relying on State of Haryana & Anr. v. Raghubir Dayal, (1995) 1 SCC 133 and Mohan Singh & Ors. v. International Airport Authority of India & Ors., (1997) 9 SCC 132 submitted that if urgency clause under Section 17(4) is applied by the appropriate Government, final notification under Section 6 of the Act can be issued on the next day of the issuance of preliminary notification under Section 4 of the Act. In the case on hand, the said procedure is followed. Notification under Section 4 was issued on August 1, 2001. Urgency clause was applied and the case was covered by Section 17 (4) of the Act. On the very next day i.e. on August 2, 2001, final notification under Section 6 was issued. Therefore, the procedure required by law has been strictly followed as held by this Court in Raghubir Dayal and Mohan Singh. 51. We would have entered into the said question had it been absolutely necessary for us to decide it in the case on hand. But as observed hereinabove, we are of the view that the appellants are entitled to succeed on the first ground that on the facts and in the circumstances of the case, the appropriate Government was not justified in invoking urgency clause under sub-section (4) of Section 17 of the Act by dispensing with inquiry and hearing of objections under Section 5A of the Act and the final notification issued under Section 6 of the Act deserves to be set aside on that ground alone, we express no opinion one way or the other on the interpretation of the expression \"the date of publication of the notification\" used in sub-section (1) of Section 4, sub-section (4) of Section 17 and Section 6 of the Act. 52. For the foregoing reasons, both the appeals are allowed. The action of the respondent authority of dispensing with the inquiry and hearing of objections under Section 5A and issuance of final notification under Section 6 of the Act is hereby quashed and set aside. It is, however, open to the authorities to take appropriate action after following normal procedure laid down in the Act. 53. Appeals are accordingly allowed with costs. CONTEMPT PETITION NO.30 OF 2007 IN C.A.NO. ............... OF 2008 @ S.L.P. (C)NO. 15449 OF 2004 54. In the light of judgment in the above appeals, the contempt petition stands disposed of. .........................................................J. (C.K. THAKKER) NEW DELHI, .........................................................J. NOVEMBER 07, 2008. (D.K. JAIN)",
        "450185": "PETITIONER: B. SHAH Vs. RESPONDENT: PRESIDING OFFICER, LABOUR COURT, COIMBATORE & ORS. DATE OF JUDGMENT12/10/1977 BENCH: SINGH, JASWANT BENCH: SINGH, JASWANT KRISHNAIYER, V.R. CITATION: 1978 AIR 12 1978 SCR (1) 701 1977 SCC (4) 334 ACT: Interpretation of social security legislation for women-Duty of the court. Right to payment of maternity benefits-Connotation of the term \"week\" in sub. ss. (1) and (3) of s. 5 read with ss. 2 (1), 3 (n) and 4 of the Maternity Benefits Act (Act LIII of 1961). Whether computation of the maternity benefits prescribed by the Act has to be made taking a week as signifying a cycle of seven days including a Sunday or a cycle of seven days minus a Sunday which is a wageless day- Paragraphs 1 and 2 of Art. 4 of Convention 103 of Maternity Protection Convention (Revised) 1952 adopted by the General Conference of the International Labour Organisation. HEADNOTE: Respondent No. 2 working in \"Mount Stuart Estate\" belonging to the appellant was allowed leave of absence on maternity leave. After her delivery, the appellant paid her on account of maternity benefit an amount equivalent to what she would have earned on the basis of her average daily wages in 72 working days falling within 12 weeks of the maternity period excluding 12 Sundays being wageless holidays which fell during the period of the respondent's actual absence immediately preceding and including the day of her delivery and the 6 weeks immediately following that day. The claim for the benefit of the entire period of 12 weeks, that is, for 84 days on the plea that a week consisted of 7 days having been refused, the respondent moved the Labour Court, Coimbatore, which by its order dated February 26, 1969, allowed the said claim. The appellant moved the High Court tinder Art. 226 of the Constitution challenging the decision of the Labour Court. The single Judge of the High Court allowed the petition holding that 12 weeks for which maternity benefit is provided for in sub- section (3) of s. 5 of the Act must be taken to mean 12 weeks of work and the computation of the benefit had to be made with reference to the actual days on which the woman would have worked but for her inability. Aggrieved by this decision. the respondent filed an appeal under cl. 15 of the Letters Patent and the Division Bench set aside the orders of the single Judge. Dismissing the appeal by special leave, the Court, HELD : (1) In interpreting provisions of beneficial pieces of legislation which is intended to achieve the object of doing social justice to woman workers employed in the plantations and which squarely fall within the purview of Article 42 of the Constitution, the beneficent rule of construction which would enable the woman worker not only to subsist but also to make up her dissipated' energy. nurse her child, preserve her efficiency as a worker and maintain the level of her previous efficiency and output has to be adopted by the Court. [708 H, 709 A-B] (2)The provisions of s. 5 of the Maternity Benefits Act make it clear that a woman worker who expects a child is entitled to maternity benefit for a maximum period of 12 weeks which is split up into two periods viz., prenatal and post-natal. The first one is the prenatal or ante-natal period is limited to the period of woman's actual absence extending upto 6 weeks immediately preceding and including the day on which her delivery occurs and the second one which is post-natal compulsory period consists of 6 weeks immediately following the day of delivery. The Act does not contain any definition of the word \"week\". It has to be understood in its ordinary dictionary meaning. In the context of sub-s. (1)and (3) of s. 5 of the Act, the term has to be taken to signify a cycle of 7 days including Sundays. By using the words, namely, \"for the period of her actual absence immediately preceding and including the day of her delivery and for the 6 weeks immediately following that day's the Legislature intended that computation of maternity benefit is to be made for the entire Period of the woman worker's actual absence, that is, for all the days including Sundays which may be wageless holidays failing within that 702 period and not only for intermittent period of 6 days thereby excluding Sundays failing within that period. The word \"period\" occurring in s. 5(1) of the Act emphasises the continuous running of time and recurrence of 7 days. It is also conformity with Paragraphs 1 and 2 of Article 4 of Convention No. 103 concerning Maternity Protection Convention (Revised) 1952 adopted by the General Conference of the International Labour Organisation. [707 D-E, 908 A, E-F, H, 709 B-C] (3)Computation of maternity benefit is to be made for all the days including Sundays and rest days which may be wageless holidays comprised in the actual period of absence of the woman extending upto 6 weeks preceding and including the day of delivery as also for all the days falling within the 6 weeks immediately following the day of delivery thereby ensuring that the woman workers get for the said period not only the amount equal to hundred per cent of the wages which who was previously earning in terms of s. 3(n) of the Act but also the benefit of the wages for all the Sundays and rest days falling within the aforesaid two periods which would ultimately be conducive to the interest of both the woman worker and her employer. [709 D-F] Malayalam Plantations Ltd. Cochin v. Inspector of Plantations Mundakayam & Ors. [1975] Lab. 1. C. 848--A.I.R. 1975 Kerala 86, over-ruled. JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1649 of 1975. Appeal by Special Leave from the Judgment and Order dated 24-4-1974 of the Madras High Court in Writ Appeal No. 165 of 1972. G.B. Bai, P. K. Kurian, D. N. Mishra and K. J. John for the Appellant. K. N. Bhat (A. C.) for Respondent No. 2. The Judgment of the Court was delivered by JASWANT SINGH, J. This appeal by special leave which is directed against the judgment and order dated April 24, 1974 of the Letters Patent Bench of the High Court of Judicature at Madras reversing the judgment and order dated April 19, 1971 of the Single Judge of that Court passed in writ petition No. 3822 of 1969 presented under Article 226 of the Constitution raises a complex but an interesting question relating to the construction of the phrases \"maternity benefit........ for the period of her actual absence immediately preceding and including the day of her delivery and for the six weeks immediately following that day\" occurring in section 5(1) of the Maternity Benefits Act, 1961 (Act LIII of 1961) (hereinafter referred to as 'the Act') which in view of section 2(1) of the Act is the law applicable even to women workers employed in plantations. It appears that in October, 1967, Subbammal, respondent No. 2 herein, who is a woman worker employed in Mount Stuart Estate (hereinafter referred to as 'the establishment'), which is carrying on plantation industry, was allowed leave of absence by the establishment on the basis of a notice given by her of her expected delivery which actually took place on December 16, 1967. After her delivery, the respondent was paid by her employers on account of maternity benefit an amount equivalent to what she would have earned on the basis of her average daily wage in 72 working days falling within twelve week's of the maternity period. While calculating the aforesaid amount of maternity benefit, the establishment admittedly excluded twelve Sundays being wageless holidays, which fell during the period of the respondent's actual absence immediately preceding and including the day of her delivery and the six weeks immediately following that day. Dissatisfied with this computation, the respondent made a representation to her employers claiming maternity benefit for the entire period of twelve weeks under the Act. i.e. for 84 days on the plea that a week consisted of seven days. As her demand did not evoke a favourable response, the respondent applied to the Labour Court, Coimbatore, under section 33C(2) of the Industrial Disputes Act for redress of her grievance. The claim preferred by the respondent was resisted by the appellant herein who contended that the respondent was admittedly working and was being paid only for six days in a week and that a pregnant woman worker is entitled to maternity benefit for 72 days which are the normal working days in twelve weeks and not for 84 days, as no wage is payable for the seventh day of the week i.e. Sunday, which is a nonworking wageless holiday. By its order dated February 26, 1969, the Labour Court allowed the claim of the respondent. Thereupon the establishment moved the High Court at Madras under Article- 226 of the Constitution challenging the, decision of the Labour Court contending that the claim made by the respondent was untenable as normally a worker works only for six days in a week and the maternity benefit had to be computed only for 72 days. As against this, the respondent pleaded that the computation had to be made not with reference to the actual number of working days but with reference to total number of days covered by twelve weeks i.e. 84 days. The Single Judge of the High Court to whom the case was assigned allowed the petition holding that twelve weeks for which maternity benefit is provided for in subsection (3) of section 5 of the Act must be taken to mean twelve weeks of work and the computation of the benefit had to be made with reference to the actual days on which the woman would have worked but for her inability. Aggrieved by this decision, the respondent filed an appeal under clause 15 of the Letters Patent which, as already stated, was allowed by the Letters Patent Bench of the High Court observing that the maternity benefit which the respondent was entitled to receive was for the period of her absence before delivery including the day of delivery and also six weeks thereafter, each week consisting of seven days including Sundays. Dissatisfied with this decision, the establishment has, already stated, come up in appeal to this Court by special leave. We have heard Mr. Pai, learned counsel for the appellant as also Mr. Bhatt, who in view of the default in appearance of respondent No. 2 and the importance of the point involved in the case was appointed as amicus cruaie. We place on record our deep appreciation of the valuable assistance rendered to us by both of them. Assailing the judgment and order under appeal, Mr. Pai has urged that since legislative intent, as revealed from the scheme of section 5(1) of the Act is to compensate the woman worker who expects delivery for the loss that her forced absence from work on account of pregnancy and confinement may entail, the liability which has to be imposed on her employer cannot exceed the amount that she would have earned if she had not been compelled to avail of the maternity leave and since Sunday is a non-working wageless day, the employer cannot be made to pay for that day. He has further urged that since under section 5 (1) of the Act, the maternity benefit has to be computed with reference to the period of the workers' actual absence thereby meaning absence on days on which there was work excluding Sundays and the term 'week\" in the context of 'sub-sections (1) and (3) of section 5 of the Act is to be under stood as a week of work consisting of six days and in the instant case, respondent No. 2 was working and earning wages for six days in a week, the seventh day being a wageless holiday, her claim cannot be sustained. In support of his contention. Mr. Pai has referred us to the Full Bench decision of the Kerala High Court in Malayalam Plantations Ltd. Cochin v. Inspector of Plantation Mundakayam & Ors.(1), and to Convention No. 103 concerning Maternity Protection Convention (Revised), 1952 adopted by the General Conference of the International Labour Organisation. Mr. Bhatt has, on the other hand, urged that the scheme of section 5 of the Act clearly indicates that a woman worker who expects delivery had to be paid maternity benefit for all the seven days of the week including Sundays falling within the ante-natal and post-natal periods specified in the section. For a proper determination of the question involved in the appeal, it would, we think, be useful to refer to certain provisions of the Act which have a bearing on the subject matter of the controversy before US. Section 2(1) of the Act makes the Act applicable to every establishment being a factory, mine or plantation (including any such establishment belonging to Government and to every establishment wherein persons are employed for the exhibition of equastrain acrobatic and other performance. Sub-section (2) of section 2 of the Act specifically excludes the applicability of the provisions of the Act to any factory or other establishment to which the provisions of the Employees State Insurance Act, 1948 apply for the time being. Section 3(n) of the Act defines \"wages\" as under :- \"3(n).--Wages means all remuneration paid or payable in cash to a woman, if the terms of the contract of employment, express or implied, were fulfilled and includes- (1) such cash allowances (including dearness allowance and house rent allowance) as a woman is for the time being entitled to; (2) incentive bonus; and (3) the money value of the concessional supply of food-grains and other articles, but does not include- (i)any bonus other than incentive bonus; (ii)over-time earnings and any deduction or payment on account of fines; (iii)any contribution paid or payable by the employer to any pension fund or provident fund or for the benefit of the woman under any law for the time being in force; and (1) (1975) Lab. I. C. 848=A.I.R. 1975 Ker. 86. (iv) any gratuity payable on the termination of service\". The above definition, it would be noted, does not restrict the meaning of the term \"wages\" to contractual wages but gives the term a composite meaning covering all remunerations in the nature of cash allowances, incentive bonus and the money value of the concessional supply of foodgrains and other articles. Section 4 of the Act which prohibits the employment of, or work by, woman during certain period lays down :- \"4. Employment of, or work by, woman prohibited during certain period.-(1) No employer shall knowingly employ a woman in any establishment during the six weeks immediately following the day of her delivery or her mis- carriage. (2) No woman shall work in any establishment during the six weeks immediately following the day of her delivery or miscarriage. (3) Without prejudice to the provisions of section 6, no pregnant woman shall, on a request being made by her in this behalf, be required by her employer to do during the period specified in sub-section (4) any which is of an arduous nature or which involves long hours of standing, or which in any way is likely to interfere with her pregnancy or the normal development of the foetus, or is likely to cause her miscarriage or otherwise to adversely affect her health. (4) The period referred to in sub-section (3) shall be- (a) the period of one month immediately preceding the period of six weeks, before the date of her expected delivery; (b) any period during the said period of six weeks for which the pregnant woman does not avail of leave of absence under section 6\". Section 5 of the Act which confers right to payment of maternity benefit on a woman worker provisions:- \"5. Right to payment of maternity benefit.- (1)Subject to the provisions of this Act, every woman shall be entitled to, and her employer shall be liable for, the payment of maternity benefit at the rate of the average daily wage for the period of her actual absence immediately preceding and including the day of her delivery and for the six weeks immediately following that day. EXPLANATION.-For the purpose of this sub- section, the average daily wage means the average of the woman's wages payable to her for the days on which she has worked during the period of three calendar months immediately preceding the date from which she absents herself on account of maternity, or one rupee a day, whichever is higher. (2)No woman shall be entitled to maternity benefit unless she has actually worked in an establishment of the employer from whom she claims maternity benefit, for a period of not less than one hundred and sixty days in the twelve months immediately preceding the date of her expected delivery. Provided that the qualifying period of one hundred and sixty days aforesaid shall not apply to a woman who has immigrated into the State of Assam and was pregnant at the time of the immigration. EXPLANATION.-For the purpose of calculating under this sub-section, the days on which a woman has actually worked in the establishment, the days for which she has been laid off during the period of twelve months immediately preceding the date of her expected delivery shall be taken into account. (3)The maximum period for which any woman shall be entitled to maternity benefit shall be twelve weeks, that is to say, six weeks up to and including the day of her delivery and six weeks immediately following that day Provided that where a woman dies during this period, the maternity benefit shall be payable only for the days up to and including the day of her death. Provided further that where a woman, having delivered of a child, dies during her delivery or during the period of six weeks immediately following the date of her delivery, leaving behind in either case the child, the employer shall be liable for the maternity benefit for the entire period of six weeks immediately following the day of her delivery but if the child also dies during the said period, then, for the days upto and including the day of the death of the child.\" Section 6 of the Act which deals with notice of claim for maternity benefit and payment thereof is to the following effect :- \"6. Notice of claim for maternity benefit and payment thereof.-(1) Any woman employed in an establishment and entitled to maternity benefit under the provisions of this Act may give notice in writing in such form as may be prescribed, to her employer, stating that her maternity benefit and any other amount to which she may be entitled under this Act may be paid to her or to such person as she may nominate in the notice and that she will not work in any establishment during the period for which she receives' maternity benefit. (2)In the case of a woman who is pregnant, such notice shall state the date from which she will be absent from work, not being a date earlier than six weeks from the date of her expected delivery. (3)Any woman who has not given the notice when she was pregnant may give such notice as soon as possible after the delivery. (4)On receipt of the notice, the employer shall permit such woman to absent herself from the establishment until the expiry of six weeks after the day of her delivery. (5)The amount of maternity benefit for the period preceding the date of her expected delivery shall be paid in advance by the employer to the woman on production of such proof as may be prescribed that the woman is pregnant, and the amount due for the subsequent period shall be paid by the employer to. the woman within forty-eight hours of production of such proof as may be prescribed that the woman has been delivered of a child. (6)The failure to give notice under this section s not disentitle a woman to maternity benefit or any other amount under this Act if she is otherwise entitled to such benefit or amount and in any such case, an Inspector may either of his own motion or on an application made to him by the woman, order the payment of such benefit of amount within such period as may be specified in the order\". The provisions of section 5 of the Act quoted above make it clear that a woman worker who expects a child is entitled to maternity benefit for a maximum period of twelve weeks which is split up into two periods viz. prenatal and post-natal. The first one i.e. prenatal or ante-natal period is limited to the period of woman's actual absence extending upto six weeks immediately preceding and including the day on which her delivery occurs and the second one which is postnatal compulsory period consists of six weeks immediately following the day of delivery. The benefit has to be calculated for the aforesaid two periods on the basis of the average daily wage. According to the Explanation appended to section 5(1) of the Act, the average daily wage has to be computed taking into consideration the average of the woman's wager,. payable to her for the days on which she has worked during the period of three calendar months immediately preceding the date from which she absents herself on account of maternity, or one rupee a day, whichever is higher. For fixing the average daily wage, it has therefore first to be ascertained whether the wages with were paid or were payable to the woman was for 'time work' or for 'piece work'. It has next to be ascertained as to what were the cash wages paid or payable to her in terms of the definition contained in section 3 (n) of the Act for the days on which she worked during the period of three- calendar months immediately preceding the date of delivery, reckoned according to the British calendar month. The total wages thus worked out are to be divided by the number of days in the aforesaid three calendar months in order to arrive at the average daily wage. After thus finding out the average daily wage, the liability of the employer in respect of the maternity benefit has to be calculated in terms of section 5 of the Act for both ore-natal and post- natal period indicated above. The real though difficult question that calls for determination by us is as to what is the connotation of the term \"week\" occurring in sub-sections (1) and (3) of section 5 of the Act and whether the computation of the maternity benefit prescribed by the Act for the a foresaid two periods has to be made taking a \"week\" as signifying a cycle of seven days including a Sunday or a cycle of seven days minus a Sunday which is said to be a wageless day, As the Act does not contain any definition of the word \"week\", it has to be understood in its ordinary dictionary sense. In the Shorter Oxford English Dictionary (Third Edition), the word \"week\" has been described as meaning \"the cycle of seven days, recognized in the calendar of the Jews and thence adopted in the calendars of Christian Mohammedan and various other peoples. A space of seven days, irrespective of the time from which it is reckoned. Seven days as a term for periodical payments (of wager,, rent, or the like), or as a unit of reckoning for time of work or service.\" In Webster's New World Dictionary (1962 Edition), the meaning of the word \"week\" is given as \"a period of seven days, especially one beginning with Sunday and ending with Saturday; the hours or days of work in a seven-day period.\" In Stroud's Judicial Dictionary (Third Edition), it is stated that (1) \"though a week usually means any consecutive seven days, it will sometimes be interpreted to mean the ordinary notion of a week reckoning from Sunday to Sunday and (2) probably, a week usually means seven clear days.\" A \"week\" according to Halsbury's Laws of England (Third Edi- tion) Volume 37 at p. 84 is. strictly the time between midnight on Saturday and the same hour on the next succeeding Saturday, but the term is also applied to any period of seven successive days. Bearing in mind the above mentioned dictionary or popular meaning of the term \"week\", we think that in the context of sub-sections (1) and (3) of section 5 of the Act, the term has to be taken to signify a cycle of seven days including Sundays. The language in which the aforesaid sub-sections are couched also shows that the Legislature intended that computation of maternity benefit is to be made for the entire period of the woman worker's actual absence i.e. for all the days including Sundays which may be wageless holidays falling within that period and not only for intermittent periods of six days thereby excluding Sundays falling within that period for if it were not so, the Legislature instead of using the words \"for the period of her actual absence immediately preceding and including the day of her delivery and for the six weeks immediately following that day\" would have used the words \"for the working days falling within the period of her actual absence immediately preceding and including the day of her delivery and the six weeks immediately following that day but excluding the wageless days\". Again the word \"period\" occurring in section 5(1) of the Act is a strong word. It seems to emphasize, in our judgment, the continuous running of time and recurrence of the cycle of seven days. It has also to be borne in mind in this connection that in inter- preting provisions of beneficial pieces of legislation like the one in hand which is intended to achieve the object of doing social justice to women workers employed in the plantations and which squarely fall within the purview of Article 42 of the Constitution, the beneficent rule of construction which would enable the woman worker not only to subsist but also to make up her dissipated energy, nurse her child, preserve her efficiency as a worker and maintain the level of her previous efficiency and output has to be adopted by the Court. The interpretation placed by us on the phraseology of sub- sections (1) and (3) of section 5 of the Act appears to us to be in conformity not only with the legislative intendment but also with Paragraphs 1 and 2 of Article 4 of Convention No. 103 concerning Maternity Protection Convention (Revised), 1952 adopted by the General Conference of the International Labour Organisation which are extracted below for facility of reference:- \"Article 4 : 1. While absent from work on maternity leave in accordance with the provisions of Article 3, the woman shall be entitled to receive cash and medical benefits. 2. The rates of cash benefit shall be fixed by national laws or regulations so as to ensure benefit sufficient for the full and healthy maintenance of herself and her child in according with a suitable standard of living.\" Thus we are of opinion that computation of maternity benefit has to be made for all the days including Sundays and rest days which may be wageless holidays comprised in the actual period of absence of the woman extending upto six weeks preceding and including the day of delivery as also for all the days falling within the six weeks immediately following the day of delivery thereby ensuring that the woman worker gets for the said period not only the amount equaling 100 per cent of the wages which she was previously earning in terms of section 3 (n) of the Act but also the benefit of the wages for all the Sundays and rest days falling within the aforesaid two periods which would ultimately be conducive to the interests of both the woman worker and her employer. In view of what we have stated above, we cannot uphold the view of the law expressed by the Full Bench of Kerala High Court in Malayalam Plantations Ltd. Cochin v. Inspector of Plantations Mundakayam & Ors. (supra). In the result, the appeal fails and is hereby dismissed. Although costs have to be paid by appellant to respondent No. 2 in terms of the Court's order dated October 30, 1975, yet in view of the fact that the said respondent has not chosen to appear at the hearing, of the case and Mr. K. N. Bhat has assisted the Court as amicus curiae, we direct the appellant to pay Rs. 1,000/- to Mr. Bhat as his fee. S.R. Appeal dismissed.",
        "13370078": "1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.88 OF 2021 (arising out of SLP (Crl.)No.10247/2019) AJAY KUMAR @ BITTU & ANR. ...APPELLANT(S) VERSUS STATE OF UTTARAKHAND & ANR. ..RESPONDENT(S) JUDGMENT ASHOK BHUSHAN,J. Leave granted. 2. This appeal has been filed against the judgment of the High Court of Uttarakhand dated 27.09.2019, by which judgment High Court had dismissed the Criminal Revision filed by the appellants. The Criminal Revision was filed by the appellants against the order dated 17.08.2019 passed by Additional District Judge, Laksar, by which the appellants were Signature Not Verified summoned by the Court under Section 319 Cr.P.C. Digitally signed by ARJUN BISHT Date: 2021.01.29 14:20:50 IST Reason: 3. Brief facts of the case necessary to be noted for deciding this appeal are:- i. The appellant was made an accused in FIR No.175/2015 at Police Station Kotwali, Laksar, Haridwar, under Section 147, 148, 149, 323, 324, 307, 452, 504 and 506 IPC along with six other accused. An FIR No.176/2016 was also registered in the same Police Station under Section 147, 148, 149, 307, 452, 504, 506 IPC in which the complainant with other accused were arrayed. The Police after carrying out the investigation submitted a chargesheet exonerating the appellants. Investigation officer after investigation expunged the names of Bittoo and Jyoti, the appellants from the list of accused from the chargesheet. ii. The Trial began in case No.228 of 2016 in which informant Pahal Singh was examined as PW-1. In his Statement, Pahal Singh implicated all accused including the appellants but no specific role was assigned to the appellants. Statement was also recorded by PW-2, Monu, in which he implicated the appellants. An application under Section 319 Cr.P.C. was filed by the informant before the Session Judge praying that appellant be also summoned in the case. Learned Session Judge after noticing in detail the statements made by PW-1 and PW-2 made in the Court rejected the application by order dated 21.06.2018. Against the order dated 21.06.2018, Pahal Singh, the informant, filed the Criminal Revision No.304 of 2018 before the High Court. iii. The High Court relying on the judgment of this Court reported in Rajesh and others versus State of Haryana, (2019) 6 SCC 368, allowed the Revision and directed the application under Section 319 Cr.P.C. to be considered afresh. Following is the operative portion of the order passed by the High Court in paragraph 7; \u201c7. After having considered the aforesaid ratio and also the reasons which have been assigned by the Additional Sessions Judge, Laksar, Haridwar, this Court is of the view that the revision deserves to be allowed and the same is consequently allowed. The order dated 21.06.2018 passed by the learned Additional Sessions Judge, Laksar, District Haridwar in Sessions Trial No.228 of 2016, State v. Chandra Pal and others is quashed. The matter is remitted back to the Additional Sessions Judge, Laksar, District Haridwar, to reconsider the application paper No.53 (ka/1) in the light of ratio as propounded by the Hon\u2019ble Apex Courts Judgment in Rajesh\u2019 case (Supra).\u201d iv. After the Order of the High Court dated 11.07.2019 in the Criminal Revision, Learned Session Judge again considered the application under Section 319 Cr.P.C. Learned Session Judge referring to the observations made by the High Court in paragraph 5 as well as the judgment of this Court in Rajesh and others versus State of Haryana(Supra) allowed the application and summoned the appellants by Order dated 17.08.2019. The Trial Court issued a bailable warrant against the appellants on 05.09.2019 and after bailable warrant being served when they did not appear on 18.09.2019, Non-Bailable warrant was issued to the appellants and a Notice under Section 446 Cr.P.C. was issued as to why the amount of sureties being not realised from two sureties Arun Kumar and Chandra Pal. The appellants filed Criminal Revision before the High Court against the order dated 17.08.2019 of the Additional Session Judge summoning them. v. The High Court dismissed the Revision noticing a subsequent order dated 18.09.2019 by which notice has been issued under Section 446 Cr.P.C. The High Court took the view that the Revision was filed on 23.09.2019 but the order passed by the Court on 18.09.2019 has not been brought on record, hence, there is concealment of not placing the order on record. The High Court further observed that since the proceeding in pursuance to allowing the application under Section 319 Cr.P.C. has already been initiated, in which the revisionists have already invoked the jurisdiction of the Revisional Court in which order dated 18.09.2019 has been passed, the Revision is to be dismissed. Aggrieved by the order of the High Court dated 27.09.2019, this appeal has been filed. 4. We have heard the learned counsel for the parties and have perused the record. 5. The principles for exercise of power under Section 319 Cr.P.C. by Criminal Court are well settled. The Constitution Bench of this Court in Hardeep Singh versus State of Punjab and others, (2014) 3 SCC 92, has elaborately considered all contours of Section 319 Cr.P.C. This Court has held that Power under Section 319 Cr.P.C. is a discretionary and extra-ordinary power which has to be exercised sparingly. This Court further held that the test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In paragraph 105 and 106, following has been laid down: - \u201c105. Power under Section 319 CrPC is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the Court that such power should be exercised and not in a casual and cavalier manner. 106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes un-rebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 CrPC. In Section 319 CrPC the purpose of providing if \u201cit appears from the evidence that any person not being the accused has committed any offence\u201d is clear from the words \u201cfor which such person could be tried together with the accused.\u201d The words used are not \u201cfor which such person could be convicted\u201d. There is, therefore, no scope for the court acting under Section 319 CrPC to form any opinion as to the guilt of the accused.\u201d 6. The Two-Judge Bench of this Court again reiterated the same ratio in Rajesh and others versus State of Haryana (Supra) which judgment has also been relied by the High Court in the impugned judgment. 7. Now we may notice the reason which persuaded the High Court to reject the Revision. After noticing the facts of the case, the High Court proceeded to consider the revision and recorded its reason for dismissing it in following words: - \u201cAlthough a reference has been made in paragraph 10 of the application filed in support of the revision to the effect that the proceedings was taken by the present revisionists before the Sessions Court and an order of 18.09.2019 has been passed, whereby, the notices have been issued to the present revisionists under Section 446 of Cr.P.C. This order passed by the Court below is that of 18.09.2019. the copy of the said order was received by the revisionists on 21.09.2019, as would be apparent from the folio annexed with the certified copy of the order dated 18.09.2019 as supplied by the learned counsel for the revisionist during the course of arguments to this Court, though it is not part of the Criminal Revision. The revision itself was filed on 23.09.2019. The said order passed by the Court under Section 446, has not been brought on record. Hence, this Court is of the view that apart from the fact that there is a concealment by not placing the order on record, which otherwise has been procured by the revisionist prior to the filing of the revision and furthermore, since the proceedings in pursuance to allowing the application under Section 319 CrPC has already been initiated, in which the revisionist has already invoked the jurisdiction of the Revisional court, in which the order dated 18.09.2019 has been passed. In view of the already ongoing proceedings before the Sessions Court prior to the filing of the present revision, this court is of the view that no simultaneous challenge to the impugned order dated 17.08.2019 summoning the revisionists under Section 319 of CrPC would be tenable before this Court till the order dated 18.09.2019, passed in the proceedings at the behest of the present revisionist, subsist. Consequently, this revision lacks merit and the same is dismissed as it is not sustainable before this Court.\u201d 8. A perusal of the judgment of the High Court indicates that the High Court did not examine the correctness of the order dated 17.08.2019 by which the appellants were summoned by Additional District Judge under Section 319 Cr.P.C., rather has dismissed the Criminal Revision on basis of a subsequent fact i.e. order dated 18.09.2019 by which notice has been issued under Section 446 Cr.P.C. The High Court further took the view that since the proceedings in pursuance of Section 319 Cr.P.C. have already been initiated and that no simultaneous challenge to the impugned order dated 17.08.2019 summoning the revisionists under Section 319 Cr.P.C. would be tenable before the High Court till the order dated 18.09.2019 passed in proceedings at the behest of revisionist subsist. 9. We may now notice the nature of the proceedings subsequent to the order dated 17.08.2019 by which the appellants were summoned. The appellant has brought on record the order sheet of the Court along with the application for additional documents. The order sheet indicates that although the summons was served on the appellants but they have not appeared, hence, bailable warrant of Rs.10,000/- was issued against the appellants. Order dated 05.09.2019 is to the following effect:- \u201c Sd/- illegible 05.09.2019 Arun Kumar Chandrapal Record is produced. Accused Sandeep Singh appearance dispensed through his Jitender counsel Kashim Ansari. Allowed. Gautam Remaining accused Arun, Chandrapal, Jitender and Gautam are present. Summon is duly served on accused Jyoti and Bittu. Accused Jyoti and Bittu are absent. The bailable warrant of Rs.10,000/- be issue against Jyoti and Bittu for 18.09.2019. Sd/- illegible Ambika Pant Additional Session Judge Laksar, District Haridwar.\u201d 10. Subsequently on 18.09.2019 the case was again taken by the Additional District Judge and following order was passed:- Sd/- illegible 18.09.2019 Arun Kumar Chandrapal The file is produced. Accused Singh Chandrapal Gautam, Jitender and Jitender Sandeep are present. Gautam The Bailable warrants issued against accused Jyoti and Bittu are returned after being served. Accused Jyoti and Bittu are absent even after service of Bailable warrants. Therefore, non bailable warrants are issued against Jyoti and Bittu to ensure their presence. Accused Jyoti and Bittu are not being produced before the Court inspite of sureties given by the guarantors. The surety of accused Bittu is Accused Arun Kumar and the surety of accused Jyoti is her father accused Chandrapal and the another surety is accused Arun. Both of them are present in the Court. Therefore, the Bail bonds executed by them are forfeited for not producing Accused Bittu and Jyoti before the Court. Therefore, notice under section 446 CrPC is being issued with the intent that why the amount if surety be not realized from them. The case be produced for appearance of accused Jyoti and Bittu and for the explanation by the guarantors on 30.09.2019. Sd/- illegible Ambika Pant Additional Session Judge Laksar, District Haridwar.\u201d 11. The proceedings which were taken on 05.09.2019 and 18.09.2019 are proceedings consequent to and subsequent to the order dated 17.08.2019. The subsequent proceeding in no manner can be a ground to not consider the correctness and validity of order dated 17.08.2019. We are of the considered opinion that the High Court completely erred in refusing to consider the correctness of the order dated 17.08.2019 on the ground that on 18.09.2019 notice under Section 446 Cr.P.C. has been issued. As and when it is found that order dated 17.08.2019 could not have been passed in exercise of jurisdiction under Section 319 Cr.P.C., all subsequent proceedings thereto shall automatically come to an end. 12. The view of the High Court which is recorded in following words:- \u201c\u2026this court is of the view that no simultaneous challenge to the impugned order dated 17.08.2019 summoning the revisionists under Section 319 of Cr.P.C. would be tenable before this Court till the order dated 18.09.2019, passed in the proceedings at the behest of present revisionist, subsist.\u201d cannot be said to be correct view. 13. The order dated 18.09.2019 by which the Court has directed appearance of the accused appellant is to be taken to its logical end but that order cannot provide a shield of protection to earlier order dated 17.08.2019 by which appellant has been summoned. 14. The subsequent proceedings of the court which have been brought on record indicate that the appellant no.2 and 1 have appeared before the Court and have also been granted bail. . 15. One of the grounds taken in this appeal is that appellant No.1 is Juvenile at the date of incident, his Date of Birth being 01.04.2000. The above ground also needs to be considered by the High Court. 16. We thus are of the view that the impugned judgment of the High Court dated 27.09.2019 is unsustainable and deserves to be set aside. We order accordingly. The Criminal Revision of the appellants be considered afresh by the High Court in accordance with the law. The appeal is allowed. \u2026\u2026\u2026\u2026\u2026......................J. ( ASHOK BHUSHAN ) \u2026\u2026\u2026\u2026\u2026......................J. ( R. SUBHASH REDDY ) \u2026\u2026\u2026\u2026\u2026.......................J. ( M.R. SHAH) New Delhi, January 29, 2021.",
        "83838189": "C.M.A(MD)No.310 of 2020 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATE ON WHICH RESERVED :31.08.2020 DATE ON WHICH PRONOUNCED :15.09.2020 CORAM: THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN and THE HONOURABLE MR.JUSTICE P.RAJAMANICKAM C.M.A.(MD).No.310 of 2020 and C.M.P.(MD).No.4035 of 2020 1.Gomathi 2.Minor S.Surya : Appellants /Respondents (Minor 2nd appellant rep. by his mother, the 1st appellant herein) Vs. Sacraties : Respondent/Petitioner Prayer: This Civil Miscellaneous Appeal is filed under Section 19(1) of the Family Courts Act, 1984, against the fair and decretal order dated 03.10.2018 passed in I.A.No.173 of 2016 in H.M.O.P.No.35 of 2014 on the file of the Family Court, Tiruchirapalli. For Appellants : Mr.M.P.Senthil For Respondent : Mr.S.Jeyavel -------- 1/21 \f C.M.A(MD)No.310 of 2020 JUDGMENT (Judgment of the Court was delivered by P.RAJAMANICKAM, J.) This Civil Miscellaneous Appeal has been filed by the petitioners/appellants against the order passed by the Family Court, Tiruchirapalli in I.A.No.173/2016 in H.M.O.P.No.35 of 2014, dated 03.10.2018. 2. The respondent herein, who is the husband of the first appellant and father of the second appellant herein, has filed H.M.O.P.No.227/2010 on the file of the Sub-Judge, Tiruchirapalli, seeking divorce against the first appellant herein on the ground of cruelty. The said H.M.O.P was transferred to the Court of Family Judge, Tiruchirapalli and renumbered as H.M.O.P.No.35 of 2014. During pendency of the said petition, the appellants herein have filed an application in I.A.No.252 of 2015 under Section 7(1) of the Family Courts Act r/w Section 25 of the Hindu Marriage Act, 1955 and Sections 20 and 26 of the Protection of Women from Domestic Violence Act, 2005 (23 of 2005) to direct the respondent to pay a sum of Rs.10,000/- to the first appellant herein and Rs. 5,000/- to the second appellant herein towards monthly maintenance, education, medical expenses or any other lump sum by way of permanent alimony to the first appellant herein. They also filed another application in I.A.No.173/2016 C.M.A(MD)No.310 of 2020 under Section 24 of the Hindu Marriage Act, 1955 r/w Sections 20 and 26 of the Protection of Women from Domestic Violence Act, 2005 (43 of 2005) (Herein after referred as 'DV Act') to direct the respondent to pay a sum of Rs.7,500/- to the first appellant herein for her maintenance and medical expenses and Rs. 5,000/- to the second appellant herein for his maintenance and educational expenses till orders passed in I.A.No.252 of 2015. 3.The respondent herein opposed the aforesaid petitions by filing counters. 4. During enquiry in I.A.No.173 of 2016, on either side, no oral evidence has been adduced. On the side of the petitioners, Exs.P.1 to P.5 were marked as exhibits. On the side of the respondent, Exs.R.1 to R.5 were marked as exhibits. 5.The learned Family Court Judge, Tiruchirapalli, after considering the materials placed before him found that since the petitioners herein have already got an order for maintenance in their favour by invoking the provision under Section 20 of D.V Act in D.V.C.No.107 of 2016 on the file of the Additional Mahila Court, Tiruchirapalli, they are precluded from filing another C.M.A(MD)No.310 of 2020 petition seeking the relief of interim maintenance by invoking the very same provision of Section 20 of D.V Act. Accordingly, he dismissed I.A.No.173 of 2016 by the order dated 03.10.2018. Feeling aggrieved, the petitioners have filed the present Civil Miscellaneous Appeal. 6.Heard Mr.M.P.Senthil, learned counsel for the appellants/petitioners and Mr.S.Jeyavel, learned counsel for the respondent. 7.The points for consideration in this civil miscellaneous appeal are as follows:- i)Whether the petitioners are precluded from seeking interim maintenance by invoking the Provisions of Section 24 of the Hindu Marriage Act r/w Sections 20 and 26 of Protection of Women from Domestic Violence Act on the ground that they already got order for payment of maintenance in D.V proceedings i.e., in D.V.C.No.107 of 2016? ii)Whether the learned Family Court Judge was right in dismissing the I.A.No.173/2016 in H.M.O.P.No.35/2014? C.M.A(MD)No.310 of 2020 8. Point Nos.1 & 2:- The learned counsel for the appellants has submitted that the learned Family Court Judge erred in dismissing the application for interim maintenance without adverting to the circumstances under which the petitioners have filed the said application. He further submitted that the learned Family Court Judge failed to consider that as per Section 26 of the DV Act, any relief available under Sections 18 to 22 of the DV Act may also be sought in any legal proceeding, before a Civil Court, Family Court or a Criminal Court. He further submitted that the learned Family Court Judge failed to consider that as per Section 24 of the Hindu Marriage Act, the first appellant is entitled to seek interim maintenance in the divorce proceedings. He further submitted that neither the DV Act nor the Hindu Marriage Act prohibits seeking interim maintenance as additional relief. He further submitted that if any amount was awarded towards maintenance in any of the proceedings, the same has to be taken into account in the subsequent proceedings and after considering the same, if the Court finds that the maintenance already awarded in the previous proceedings is not sufficient, it can direct the respondent to pay additional amount towards maintenance or if the Court finds that maintenance already awarded in the previous proceedings itself is sufficient, it can dismiss the C.M.A(MD)No.310 of 2020 petition, but in stead of doing so, the Court should not have dismissed the petition on the ground that already maintenance was awarded in the previous proceedings. He further submitted that since the right to claim maintenance is a basic right, the learned Family Court Judge ought not to have dismissed the appellants' application and therefore, he prayed to allow the appeal and set aside the orders passed by the learned Family Court Judge and allow the I.A.No.173 of 2016 in H.M.O.P.No.35 of 2014, on the file of the Family Court, Tiruchirappalli. 9.Per contra, the learned counsel appearing for the respondent has submitted that the first petitioner has filed an application under Section 12 of the DV Act in S.T.C.No.644/2009 on the file of the Judicial Magistrate No.6, Tiruchirapalli, seeking reliefs under Sections 18, 19 and 20 of the DV Act. He further submitted that the said application was subsequently transferred to the Chief Judicial Magistrate, Tiruchirapalli and renumbered as S.T.C.No.2/2015 and thereafter, it was again transferred to Additional Mahila Court, Tiruchirappalli and renumbered as D.V.C.No.107/2016. He further submitted that the learned Additional Mahila Court, Tiruchirapalli, taking into consideration the first appellant and her children are residing in respondent's house and salary of the respondent, by the order dated 29.12.2016 in D.V.C.No. C.M.A(MD)No.310 of 2020 107/2016, has directed the respondent herein to pay a sum of Rs.3,000/- towards maintenance to the first petitioner per month and Rs.2,000/- towards maintenance per month to each of her minor sons and totally, a sum of Rs. 7,000/- was awarded and the said amount should be paid from the date of filing of the petition. He further submitted that challenging the said order, the respondent has filed Crl.A.No.15 of 2017 on the file of the Principal Sessions Court, Tiruchirapalli and the learned Principal Sessions Judge, by the judgment dated, 16.08.2017, has modified the order passed by the trial Court by holding that maintenance amount of Rs.7,000/- will be payable only from the date of order of the trial Court namely 29.12.2016 and not from the date of petition before the trial court namely 05.12.2008. He further submitted that challenging the said portion of the order, the first appellant has filed Crl.R.C.(MD).No. 815/2017 before this Court and this Court, by the order dated 27.03.2018, has allowed the said criminal revision setting aside the order passed by the learned Principal Sessions Judge and restored the order passed by the learned Trial Court and hence, the order passed by the learned Judicial Magistrate/Additional Mahila Court, Tiruchirapalli in D.V.C.No.107/2016 with regard to the maintenance has become final. He further submitted that if the petitioners felt that the order passed by the learned Additional Mahila Court in D.V.C.No. 107/2016 requires alteration or modification, due to change of circumstances, C.M.A(MD)No.310 of 2020 they have to file proper application before the same Court by invoking Section 25(2) of the DV Act and in stead of that, they cannot file another application before the another Court for the same relief. He further submitted that filing of the multiple applications seeking maintenance before the different forums would amount to abuse of process of Court and therefore, he prayed to dismiss the Civil Miscellaneous Appeal. 10.This Court has carefully considered the rival submissions made on either side and perused the documents available on record carefully. 11.It is seen from the typed set of papers filed by the appellants that the first appellant herein has filed an application under Section 12 of the DV Act in S.T.C.No.644 of 2009 on the file of the Judicial Magistrate No.6, Tiruchirapalli, seeking certain reliefs including maintenance under Sections 18, 19 and 20 of the DV Act. The said case was subsequently transferred to the Chief Judicial Magistrate Court, Tiruchirapalli and renumbered as S.T.C.No. 2/2015 and thereafter, it was again transferred to the Additional Mahila Court, Tiruchirapalli and renumbered as D.V.C.No.107/2016. During pendency of the said proceedings under the DV Act, the respondent herein has filed H.M.O.P.No.227 of 2010 on the file of the Sub Court, Tiruchirapalli against the C.M.A(MD)No.310 of 2020 first appellant herein seeking divorce on the ground of cruelty and the said petition was subsequently transferred to the Family Court, Tiruchirapalli and renumbered as H.M.O.P.No.35/2014 and the same is still pending. Whileso, the learned Judicial Magistrate /Additional Mahila Court, Tiruchirapalli, by the order dated 29.12.2016, has allowed the D.V.C.No.107 of 2016 and granted the reliefs under Sections 18, 19 and 20 of DV Act and also directed the respondent herein to pay Rs.3,000/- per month to the first appellant and Rs.2,000/- each per month to her two children (totally a sum of Rs.7,000/- per month) towards maintenance from the date of petition. Challenging the said order, the respondent herein has filed Crl.A.No.15 of 2017 before the Sessions Court, Tiruchirapalli and the learned Principal Sessions Judge by the judgment dated 16.08.2017 has modified the order passed by the trial court by holding that the maintenance amount of Rs.7,000/- per month will be payable only from the date of order of the trial court, namely 29.12.2016 and not from the date of petition before the trial court namely 05.12.2008. Challenging the said portion of the order, the first appellant herein has filed Crl.R.C.(MD).No.815 of 2017 before this Court. This Court, by the order dated 27.03.2018 has allowed the said criminal revision case and set aside the judgment passed by the learned Principal Sessions Judge in Crl.A.No.15 of 2017 and restored the order passed by the learned Judicial Magistrate/Additional Mahila Court, Tiruchirapalli in C.M.A(MD)No.310 of 2020 D.V.C.No.107 of 2016, dated 29.12.2016. So, the order passed by the learned Additional Mahila Court, Tiruchirapalli in D.V.C.No.107 of 2016 has become final. 12.It appears that during pendency of the DV proceedings, the appellants herein have filed an application in I.A.No.252/2015 under Section 7(1) of the Family Courts Act r/w Section 25 of the Hindu Marriage Act and Sections 20 and 26 of the DV Act to direct the respondent to pay a sum of Rs. 10,000/- for the first appellant herein and Rs.5,000/- for the second appellant herein towards monthly maintenance, education and medical expenses or any other lump sum by way of permanent alimony for the first appellant herein. 13.At this juncture, Section 25 of the Hindu Marriage Act, 1955, may be extracted as under: \u201c25.Permanent alimony and maintenance (1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall [***] pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent's own income and other C.M.A(MD)No.310 of 2020 property, if any, the income and other property of the applicant [****], the conduct of the parties and other circumstances of the case], it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent. (2) If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just. (3) If the court is satisfied that the party in whose favour an order has been made under this section has remarried or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, [it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just].\u201d 14.So, it is clear that Section 25 (1) of the said Act empowers the Court, while passing any decree, to consider the status of the parties and whether any arrangement needs to be made in favour of the wife or the husband; and by way of permanent alimony, an order granting maintenance can also be passed by the Court. It is also clear that at any time, subsequent to the passing of decree also, the Court can order for granting maintenance on application made to it by either wife or the husband. C.M.A(MD)No.310 of 2020 15.But, in this case, the appellants herein have filed I.A.No.252/2015, seeking permanent alimony even during pendency of the H.M.O.P. They also filed another application in I.A.No.173/2016 under Sections 24 of the Hindu Marriage Act r/w Sections 20 and 26 of the DV Act to direct the respondent to pay a sum of Rs.7,500/- for the first appellant herein towards her maintenance and medical expenses and Rs.5,000/- for the second appellant herein towards monthly maintenance and educational expenses till suitable orders are passed in I.A.No.252/2015. In the affidavit filed in support of I.A.No.173/2016, the first appellant herein has stated that when arguments were advanced in I.A.No. 252/2015, on 11.05.2016, it was raised by the Court that she has sought for permanent alimony in that application and it cannot be taken up as an interim measure and directed the parties to take up that application along with main case. Further, she has stated that though it was represented by her that the relief sought for in I.A.No.252 of 2015 claimed as permanent alimony, it can be restricted to an interim alimony and when she was prepared to make an endorsement to that extent in that application, the trial court was not inclined to entertain her plea and opined to take up that application viz., I.A.No.252 of 2015 along with I.A.No.251/2015 (Compensation application) and main application jointly. She further averred that since she and her children are striving hard to meet both ends, she filed I.A.No.173 of 2016 seeking interim C.M.A(MD)No.310 of 2020 maintenance. 16.As already pointed out that as per Section 25(1) of the Hindu Marriage Act, 1955, the Court is empowered to pass order with regard to permanent alimony at the time of passing any decree in the H.M.O.P. If the Court did not exercise the said power and grant permanent alimony at the time of passing a decree in H.M.O.P, subsequently also can grant alimony on application filed by either wife or husband. Therefore, the application in I.A.No.252/2015 itself is misconceived. Under the said circumstances, the application in I.A.No.173 of 2016 seeking interim maintenance till the disposal of I.A.No.252/2015 is also misconceived. So, the application in I.A.No.173 of 2016 as framed is not maintainable. 17.Even assuming that the application in I.A.No.173 of 2016 has to be read that it was filed seeking interim maintenance till the disposal of main H.M.O.P, even then also, the said petition is not maintainable, because the said relief is only an interim relief. Admittedly, already, the first appellant has filed an application under Section 12 of the DV Act seeking reliefs under Sections 18, 19 and 20 of the DV Act for herself and for her two minor sons in STC.No. 644/2009 on the file of the Judicial Magistrate No.6, Tiruchirapalli and C.M.A(MD)No.310 of 2020 subsequently, the same was transferred to the Court of Chief Judicial Magistrate, Tiruchirapalli and renumbered as STC.No.2 of 2015 and thereafter, it was again transferred to the Additional Mahila Court, Tiruchirapalli and renumbered as D.V.C.No.107 of 2016 and in the said proceedings, the learned Judicial Magistrate/ Additional Mahila Court, Tiruchirapalli, by the order, dated 29.07.2016 has allowed the said application and granted protection order and also directed the respondent to pay Rs.3,000/- per month to the first appellant and Rs.2,000/- each per month to her two children (Totally Rs.7,000/- per month) towards maintenance from the date of petition. Challenging the said order, the respondent has filed Crl.A.No.15/17 before the Sessions Court, Tiruchirapalli and the learned Principal Sessions Judge, by the judgment dated 16.08.2017 has modified the order passed by the trial court by holding that the maintenance amount of Rs.7,000/- will be payable only from the date of order of the trial court namely 29.12.2016 and not from the date of petition before the trial court namely 05.12.2008. Challenging the said portion of the order alone, the first appellant herein has filed Crl.R.C.(MD).No.815/2017 before this Court. This Court, by the order dated 27.03.2018 has allowed the said criminal revision case and set aside the judgment passed by the learned Principal Sessions Judge, Tiruchirapalli in Crl.A.No.15/17, dated 16.08.2017 and restored the order passed by the learned Chief Judicial Magistrate/Additional Mahila Court, C.M.A(MD)No.310 of 2020 Tiruchirapalli in D.V.C.No.107/2016, dated 29.12.2016. If the first appellant herein felt that the maintenance awarded by the learned Judicial Magistrate/Additional Mahila Court, Tiruchirapalli in D.V.C.No.107 of 2016 is not adequate, she would have filed an appeal before the Sessions Court, but she has not filed any appeal. On the contrary, it was only the respondent has filed an appeal against the order of the learned Additional Mahila Court, Tiruchirapalli. So, it appears that the appellants did not have any grievance with regard to the maintenance amount awarded by the learned Judicial Magistrate/Additional Mahila Court, Tiruchirappalli in D.V.C.No.107/2016. The order passed by the learned Judicial Magistrate/Additional Mahila Court, Tiruchirappalli in D.V.C.No.107/2016 under Section 20 of DV Act is permanent in nature, whereas, the relief asked by the petitioners in I.A.No.173/2016 in H.M.O.P.No.35 of 2014 is only an interim relief. Therefore, this Court is of the view that they cannot seek interim relief, after getting permanent relief. 18.At this juncture, it would be relevant to refer to the decision in Rakesh Malhotra Vs Krishna Malhotra (MANU/SC/0338/2020 : 2020 (1) RCR (Criminal) 1019), wherein, in a matrimonial proceeding initiated by the wife seeking dissolution of marriage under Section 13(1) (i-a) & (i-b) of the Hindu Marriage Act, 1955, a decree for dissolution was passed by the Court of C.M.A(MD)No.310 of 2020 First Additional District Judge, Vidisha (M.P) on 20.02.2013 and also passed an order for granting permanent alimony. Some time, in the year 2005, an application seeking maintenance under Section 125 of Cr.P.C was preferred by the wife and the same was dismissed by the concerned Court by the order dated 30.06.2014. The wife challenged the said order by way of criminal revision before the High Court. The High Court by the order dated 14.12.2017 has allowed the revision and directed the husband to pay a sum of Rs.5,000/- per month towards maintenance. Challenging the said order, the husband has filed an appeal before the Honourable Supreme Court. The Hon'ble Supreme Court has held that since the basic order was passed by the concerned court under Section 25(1) of the Hindu Marriage Act, by very nature, the order of modification / variation can also be passed by the concerned court exercising power under Section 25(2) or 25(3) of the said Act. It also held that the remedy so prescribed ought to be exercised rather than creating multiple channels of remedy seeking maintenance and finally set aside the order passed by the High Court. The relevant portion of the said decision is extracted hereunder:- \u201cSince the Parliament has empowered the Court under Section 25(2) of the Act and kept a remedy intact and made available to the concerned party seeking modification, the logical sequittor would be that the remedy so prescribed ought to be exercised rather than creating multiple channels of remedy seeking maintenance. One can understand the situation where C.M.A(MD)No.310 of 2020 considering the exigencies of the situation and urgency in the matter, a wife initially prefers an application under Section 125 of the Code to secure maintenance in order to sustain herself. In such matters the wife would certainly be entitled to have a full- fledged adjudication in the form of any challenge raised before a Competent Court either under the Act or similar such enactments. But the reverse cannot be the accepted norm.\u201d 19.Though the aforesaid decision has been rendered by interpreting the provisions of Section 125 of Cr.P.C and Section 25 of the Hindu Marriage Act, the law laid down in the said decision will squarely apply to this case also. 20.In this case, as already pointed out, the appellants herein got an order for payment of maintenance in the DV proceedings under Section 20 of the DV Act and the said relief is permanent in nature. If the appellants feel that due to change of circumstances, the said order requires modification or alteration, they can very well approach the same Court and get appropriate relief by invoking Section 25(2) of the DV Act or they can request the Family Court to exercise the power under Section 25(1) of the Hindu Marriage Act at the time of passing a decree in the H.M.O.P or they can file a regular suit and ask for charge over the property and that is most secured one. In stead of that, they cannot file another application before the another forum that too in the nature of C.M.A(MD)No.310 of 2020 interim relief. 21.Since the petitioners have filed I.A.No.173 of 2016 under Section 26 of the DV Act also, it is relevant to extract the said provision. \u201c26.Relief in other suits and legal proceedings.- (1) Any relief available under Sections 18, 19, 20, 21 and 22 may also be sought in any legal proceedings, before a civil Court, family Court or a criminal Court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act. (2)Any relief referred to in sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal Court. (3)In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief.\u201d. 22. A bare perusal of the aforesaid provision would show that the aggrieved person may also seek any relief under Sections 18 to 22 of DV Act in any legal proceedings before a Civil Court/Family Court or Criminal Court as additional reliefs. As per the Sub-Section (3) of Section 26 of the DV Act, in C.M.A(MD)No.310 of 2020 case, any relief has been obtained by the aggrieved person, in any proceedings, other than a proceeding under the DV Act, she shall be bound to inform the Magistrate of the grant of such relief. So, it is clear that as per Section 26(1) of the DV Act, the reliefs under Sections 18 to 22 of DV Act should have been asked before filing petition under Section 12 of the DV Act before the concerned Magistrate. If any such petition filed and if any relief is obtained, then only, aggrieved person can inform the said fact to the Magistrate, at the time of disposal of the application under Section 12 of the DV Act, but the reversed procedure is not prescribed. In this case, the petitioner already got an order in the petition properly filed under Section 12 of the DV Act before the Additional Mahila Court, Tiruchirappalli and that being so, they are not entitled to file petition before the Family Court by invoking the provision under Section 26(1) of the DV Act, seeking interim relief. Therefore, this Court is of the view that the learned Family Court Judge has rightly dismissed the application in I.A.No.173 of 2016. Hence, this Civil Miscellaneous Appeal is liable to be dismissed. Accordingly, the points 1 & 2 are answered against the appellants. 23. In the result, this Civil Miscellaneous Appeal is dismissed, confirming order dated 03.10.2018 passed by the learned Judge, Family Court, Tiruchirapalli in I.A.No.173 of 2016 in H.M.O.P.No.35 of 2014. No costs. It is C.M.A(MD)No.310 of 2020 open to the appellants to file petition under Section 25(2) of the DV Act for modification/variation before the Additional Mahila Court, Tiruchirappalli or they can request the Family Court to exercise the power under Section 25(1) of the Hindu Marriage Act at the time of passing a decree in H.M.O.P.No.35 of 2014 or they can file a regular suit and ask for charge over the property, if they so advised. Consequently, connected miscellaneous petition is also dismissed. (M.S.N.J.,) (P.R.M.J.,) 15.09.2020 Index :yes/No Internet :yes VS To 1. The Family Court, Tiruchirapalli. 2. The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai. Note: In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the Advocate/litigant concerned. C.M.A(MD)No.310 of 2020 M.SATHYANARAYANAN.J. AND P.RAJAMANICKAM,J. Vs judgment made in C.M.A(MD)No.310 of 2020 15.09.2020",
        "1670685": "1 CRA-10721-2019 The High Court Of Madhya Pradesh CRA-10721-2019 (KARANSINGH Vs THE STATE OF MADHYA PRADESH) 16 Indore, Dated : 01-10-2021 Heard through Video Conferencing. Shri Anil Ojha, learned counsel for the appellant. Shri Prateek Patwardhan, learned Panel Lawyer for the respondent/State. Learned counsel for the State is directed to seek instructions regarding the total period of jail incarceration of the appellant from the concerned jail. List after four weeks. (ROHIT ARYA) JUDGE RJ Signature Not Verified VerifiedDigitally Digitally signed by SAN REENA JOSEPH Date: 2021.10.01 18:27:30 IST",
        "374386": "PETITIONER: TARULATA SYAM AND ORS. Vs. RESPONDENT: COMMISSIONER OF INCOME-TAX, WEST BENGAL DATE OF JUDGMENT28/04/1977 BENCH: SARKARIA, RANJIT SINGH BENCH: SARKARIA, RANJIT SINGH BHAGWATI, P.N. FAZALALI, SYED MURTAZA CITATION: 1977 AIR 1802 1977 SCR (3) 697 1977 SCC (3) 305 ACT: Indian Income Tax Act, 1922--S. 2(6A)(e)--Scope of. Company a s. 23A Company in which public are not sub- stantially interested --Had accumulated profits--Gave loan to a shareholder--Loan repaid before end of the financial year--Loan if dividend within s. 2(6A)(e). HEADNOTE: Under section 2(6A)(e).of the Indian Income-tax Act, 1922, the term dividend includes any payment by a company not being a company in which the public are substantially interested within the meaning of s. 23A of any sum (whether as representing a part of the assets of the company or otherwise) by way of advance or loan to a shareholder or any payment by any such company on behalf or for the individual benefit of a shareholder to the extent to which the company in either case possesses accumulated profits. According to s. 12(1A) of the Act, income from other sources includes dividends. Sub-section (lB) of s. 12 provides any payment by a company to a shareholder by way of advance or loan which would have been treated as dividend within the meaning of s. 2(6A)(e) in any previous year relevant to any assess- ment year prior to the assessment year ending on the 31st day of March, 1956 had that clause been in force in that year, shall be treated as a dividend received by him in the previous year relevant to the assessment year ending on the 31st day of March, 1956, if such loan or advance remained outstanding on the first day of such previous year. The provisions of S. 2(6A)(e) and s. 12(lB) had been borrowed and adopted with certain alterations from s. 108(2) of the Commonwealth Income Tax Assessment Act of Australia the last limb of which provided that payment to a shareholder by way of advance or loan was to be treated as dividend paid by the company on the last day of the year of income of the company in which payment was made. The appellant-assessee was a shareholder and Managing Director of a Private Ltd. Company. In the calendar year 1956 (assessment year 195758), the assessee withdrew in cash from the company a sum of Rs. 4.97 lakhs, which was less than the accumulated profits of the company. Before the end of the year, the assessee repaid the whole amount. Deduct- ing a sum of Rs. 1.59 lakhs which was credited to the asses- see's account by way of dividend in the company's books, the Income-tax Officer treated the balance of Rs. 2.72 lakhs as dividend income in the ,assessee's hands and grossed up the amount under s. 16(2). appeal, the Accountant Member of the Appellate Tribunal held that any payment made as envisaged in s. 2(6A)(e) became dividend and must be treated as the assessee's income and no subsequent repayment could take it out of the mischief of the provision. The Judicial Member on the other band held that since total income of the asses- see during the relevant previous year could be computed and assessed only at the end of that year any advance or loan taken during the interim periods of the previous year would have to. be ignored. On reference the President agreed with the Accountant Member. The High Court answered the reference in favour of the Revenue. 698 were taken and (ii) the last limb of s. 108(1) of the Aus- tralian Act should be read into the Indian Act because what was explicit in. s. 108(1) of the Australian Act is implicit in s. 2(6A),(e) and s. 12(lB) of the Indian Act. Dismissing the appeal, HELD: The fiction created by s. 2(6A)(e) read with s. 12(lB) of the Act is attracted as soon as all the conditions necessary for its application exist in a case. [707 C] 1. In Navnit Lal C. Javeri v.K.K. Sen, Appellate Assist- ant Commissioner Income-tax [1965] 1 SCR 909, this Court held that the combined effect of these two provisions is that three kinds of payments made to a shareholder of a company are treated as taxable dividend to the extent of the accumulated profits held by the company, namely, payments made to the shareholder by way of advance or loan, pay- ments made on his behalf and payments made for his individu- al benefit. The five conditions to be satisfied are: (i) The company must be one in which the public are not substan- tially interested within the meaning of s. 23A; (ii) The borrower must be a shareholder at the date when the loan was advanced; (iii) The loan advanced can be deemed to be divi- dend only to the extent of the accumulated profit on the date of the loan; (iv) The loan must not have been advanced by the company is the ordinary course of its business and (v) The loan must have remained outstanding at the com- mencement of the shareholder's previous year in relation to the assessment year 1955-56. [707 D-G] In the instant case the company was a controlled company within the meaning of s. 23A; the assessee was its share- holder; the company possessed \"accumulated profits\" in excess of the amount paid to the assessee during the previ- ous years; and the company's business was not money lending. The last condition was not applicable because it was a transitory provision applicable to the assessment year 1955-56 only while the assessment year in this case was 1957-58. [708 A] 2. (a) The language of ss. 2(6A)(e) and 12(lB) is clear and unambiguous. There is no scope for importing into the statute words which are not there. Such importation would be not to construe it but to amend the statute. Even if there be a casus omissus, the defect can be remedied only by legislation and not by judicial interpretation. [708 H] (b) No justification to depart from the normal rule of construction according to which the intention of the legislature is primarily to be gathered from the words used in the statute has been made out. (c) The Indian Legislature has deliberately omitted to use in ss. 2(6A)(e) and 12(lB) words analogous to those in the last limb of s. 108(1) of the Australian Act. When ss. 2(6A)(e) and 12(lB) were inserted by Finance Act, 1955, Parliament must have been aware of the provision contained in s. 108 of the Australian Act. In spite of such aware- ness, Parliament has not thought it fit to borrow the whole hog what is said in s. 108(1) no far as the last limb of that section is concerned. Our Parliament imported only a very restricted version, and incorporated the same as the 5th condition in s. 12(lB) to the effect, that the payment deemed as dividend shall be treated as dividend received by him in the previous year relevant to the assessment year ending on the 31st March, 1956 if such loan or advance remained outstanding on the last day of such previous year The word \"such\" prefixed to the previous year shows that the application of this clause is confined to the assessment year ending on 31st March, 1956. [709 C-D] In the instant case the assessment year did not end on 31st March, 1956 which showed that the Legislature has deliberately not made the subsistence of the loan or advance or its being outstanding on the last date of the previous year relevant to the assessment year, a prerequisite for raising the statutory fiction. In other words, even if the loan or advance ceased to, be 699 outstanding at the end of the previous year, it could still be deemed as dividend if the other four conditions factually existed to the extent of the accumulated profits possessed by the company. [709 E-F] (d) Under s. 3 which is the charging section, the previ- ous year is the unit of time on which the assessment is based. As the taxability of income is related to its re- ceipt or accrual in the previous year, the moment dividend is received whether, actual or deemed, income taxable under the residuary head, \"income from other sources\", arises. The charge being on accrual or receipt, the statutory fic- tion created by ss. 2(6A)(e) and s. 12(lB) would come into operation at the time of payment by way of advance or loan provided the other conditions are satisfied. [709 G-H] JUDGMENT: CIVIL APPELLATE JURISDICTION: C.A. No. 147 of 1972. (Appeal by Special Leave from the Judgment and Order dated 19.2.1971 of the Calcutta High Court in Income Tax Ref. No. 98/67) G.C. Sharma, D.N. Mukherjee, A. K. Ganguly and G.S. Chatterjee, for the appellants. B.B. Ahuja and R.N. Sachthey, for respondent. G.C. Sharma, D.K. Jain, Anup Sharma, S.P. Nayar and Miss K. Jaiswal for the Intervener. The Judgment of the Court was delivered by SARKARIA J. Whether any payment by a Company, not being a Company in which the public are subsantially interested within the meaning of s. 23A, of any sum by way of advance or loan to a shareholder, not exceeding the accumulated profits possessed by the Company, is to be deemed as his dividend under Section 2(6A) (e) read with Section 12(lB) of the Income-tax Act, 1922, even if that advance or loan is subsequently repaid in its entirely during the relevant previous year in which it was taken, is the only question that falls to be determined in this appeal by special leave. The assessment year is 1957-58, and the corresponding previous year is the calendar year 1956. The assessee is a shareholder and the Managing Director of M/s. Dolaguri Tea Co. (P) Ltd. The Company is admittedly one in which the public are not substantially interested within the meaning of s. 23A of the Indian Income-tax Act, 1922 (for short, the Act). At the commencement of the previous year, there was in the books of the Company a credit balance of Rs. 65,246/- in the assessee's account, which had been brought' forward from the earlier year. Between the 11th January and the 12th November, 1956, the assessee withdrew in cash from time to time from the Company, amounts, aggregating Rs. 4,97,442/-. The first two cash amounts of Rs. 3,50,000/- and Rs. 40,400/-, were taken by the assessee on 11.1.1966. Deducting therefrom the opening balance of Rs. 65,246/- and two more item, namely, Rs. 1,40,000/- being outstand- ing dividends declared on 31.12.1955 of his major son, and transferred to his account, and a further dividend of Rs. 19,493/- credited to his account from Kathoni Tea Estate, there remained a sum of Rs. 2,72,703/- to the debit of the assessee in the books of the Company as on the 12th November, 1956. On December 29, 1956, the assessee paid back to the Company a sum of Rs. 1,90,000/-. On December 31, 1956, his account was credited with another sum of Rs. 80,000/- in respect of the dividend due to him and his wife, and with a further sum of Rs. 29,326/- for hypotecation. In this manner before the end of the previous year, the assessee's account was credited with an aggregated amount of Rs. 2,99,326/- which exceeded the debit balance of Rs. 2,72,70,3/- as on November 12, 1956.. Thus at the end of the relevant previous year, no advance or loan was due to the Company by the assessee. The Income-tax Officer found that the accumulated prof- its of the Company as on January 1, 1956, amounted to Rs. 6,83,005. He, therefore, deducted the two aforesaid items of Rs. 1,40,000/- and Rs. 19,493/-, aggregating Rs. 1,59,493/-, from the amount paid in cash to the assessee and treated the balance of Rs. 2,72,703/- as the net 'dividend' income in the hands of the assessee within the meaning of Section 2 (6A)(e). The/income-tax Officer grossed up that amount under Section 16(2) and gave credit for tax in ac- cordance with that Section to the assessee. The assessee's appeal to the Appellate Assistant Commissioner having failed, he preferred a further appeal to the Income-tax Appellate Tribunal. There was a divergence of opinion between the Members of the Tribunal. The Ac- countant Member took the view that the moment a payment is made as envisaged in Section 2(6A)(c) it becomes clothed with the character of a dividend and has to be treated as such income of the assessee, and no subsequent action or repayment by the share-holder can take it out of the mis- chief of this provision. He therefore held that the sum of Rs. 2,72,703/- was taxable dividend under Section 2(6A)(e). The Judicial Member expressed a contrary opinion. In his view, the total income of the assessee during the rele- vant previous year could be computed and assessed only at the end of that year; it could not be computed at interim periods during the previous year. \"If it is found that although the shareholder had taken by way of advance or loan an amount from the Company during the course of a previous year but had returned the same to the Company before the close of that previous year, it can only be said while computing the shareholder's total income at the end of that previous year that no advance or loan from the 23A Company of which he was a shareholder stood for his benefit at the time relevant for computation of his total income. The advances or loans taken during the interim periods of the previous year would just have to be ignored.\" On these premises, the Judicial Member came to the conclusion that the sum of Rs. 2,72,703/- grossed up to Rs. 3,19,245/-, was not a dividend within the fiction under Section 2(6A) (e) of the Act. On account of this difference of opinion, the following question was referred to the President of the Tribunal: \"Whether on the facts and in the circum- stances of the case, the sum of Rs. 2,72,703/- net (Rs. 3,19,245/- gross) is to be treated as dividend income in the hands of the assessee within the meaning of Section 2(6A) (e) ?\" The President agreed with the Accountant Member and held that an \"advance or loan received by the shareholder of a Private Company forthwith assumes the character of a divi- dend and becomes his income by virtue of the fiction created by Section 2(6A) (e) and it ceases to be a liability for the purpose of taxation, although the assessee may, in fact or in law, remain liable to the Company to- repay it. If the assessee repays the loan subsequently, such repayment would not liquidate or reduce the quantum of the income which had already accrued as such repayment is not be al- lowed as a permissible deduction under Section 12(2). On these premises he answered the question in the affirma- tive. In accordance with the majority opinion, the Tribunal dismissed the assessee's appeal, but, at his instance, referred the same question for opinion to the High Court under Section 66(1) of the Act. The High Court held that the tax was attracted at the point of time when the said loan was borrowed by the share- holder and it was immaterial whether the loan was repaid before the end of the accounting year or not. On this reasoning it answered the question in favour of the Revenue and against the assessee. Hence this appeal by the assessee. Before dealing with the contentions canvassed, it is necessary to have a look at the general scheme and the relevant provisions of the Act, Section 2 (6A)(e) of the Act reads as follows: (6A) \"dividend\" includes--- (a) to (d) .. (e) any payment by a company, not being a company in which the public are substantially interested within the meaning of section 23A of any sum (whether as representing a part of the assets of the company or otherwise) by way of advance or loan to a shareholder or any payment by any such company on behalf or for the individual benefit of a shareholder, to the extent to which the company in either case possesses accumulated profits; but \"dividend\" does not include- (i) a distribution made in accordance with sub-clause (c) or sub-clause (d) in respect of any share issued for full cash consideration where the holder of the share is not entitled in the event of liquidation to participate in the surplus assets; (ii) any advance or loan made to a share- holder by a company in the ordinary course of its business where the lending of money is a substantial part of the business of the compa- ny; (iii) any dividend paid by a company which is set off by the company against the whole or any part of any sum previously paid by it and treated as a dividend within the meaning of clause (e), to the extent to which it is so set off; Explanation. The expression \"accumulated profits\", wherever it occurs in this clause, shall not include capital gains arising before the 1st day of April, 1946, or after the 31st day of March, 1948, and be-fore the 1st day of April, 1956; Sub-section (15) defines 'total income' as meaning \"total amount of income, profits and gains referred to in sub-section (1 ) of Section 4 computed in the manner laid down in this Act.\" Section 3 is the charging section. Two of the princi- ples deducible from the Section are: (1 ) That the tax is levied on the total income of the assessable entity; (2) That each previous year is a distinct unit of time for the purpose of assessment, and the profits made or liabilities or losses incurred before or after the relevant previous year are wholly immaterial in assessing the profits of that year unless there is a statu- tory provision to the contrary. Section 4 (1 ) so far as it is material reads as follows: \"Section 4(1): Subject to the provisions of this Act, the total' income of any previous year of any person includes all income, prof- its and gains from whatever source derived which- (a) are received or are deemed to be re- ceived in the taxable territories in such year by or on behalf of such person, or (b) if such person is resident in the taxa- ble territories during such year,-- (i) accrue or arise or any deemed to accrue or arise to him in the taxable territories during such year, or (ii) accrue or arise to him without the taxable territories during such year, or (iii) ........ (c) if such person is not resident in the taxable territories during such year, accrue or arise or are deemed to accrue or arise to him in the taxable territories during such year: (emphasis supplied) \"Provided that .. ... .. ..\" The principles deducible from Sec. 4(1) are: (1 ) The charge is on accrual or receipt basis. Such receipt or accrual may be actual or statutory, i.e. the result of any statutory fiction created by the Act. (2) If a particular amount of income is taxed under any of the clauses (a), (b) or (c) of the sub-section the same amount cannot be taxed under any other clause either in the same year or in a different year. That is to say, income which is taxed on accrual under clause (b) (ii) cannot be taxed again on receipt under clause (a) or on remittance under clause (b)(iii) (see Kanga and Palkhiwa- la, Vol. I, 1959 Edition, page 153). (3) The receipt spoken of in this clause is the first receipt after the accrual of the income See the decision of this Court in Keshav Mills v. Commissioner of Income- tax(1)]. Sub-section (1) of Sec. 4 also highlights the basic principle embodied in the charging section 3, that the accrual or receipt of income (actual or deemed) is taxed with regard to the relevant previous year. Section 12 deals with the residuary head: \"Income from other sources\". Its sub-section (1A) says that: \"Income from other sources shah include 'dividends'. Sub-section (lB) in crucial. It provides: \"Any payment by a company to a share- holder by way of advance or loan which would have been treated as a dividend within the meaning of clause (e) of sub-section (6A) of section 2 in any previous year relevant to any assessment year prior to the assessment year ending on the 31st day of March, 1956 had that clause been in force in that year, shall be treated as a dividend received by him in the previous year relevant to the assessment year ending on the 31st day of March, 1956, if such loan or advance remained outstanding on the first day of such previous year\". Sub-section (2), inter alia lays down that in computing any income by way of dividend, allowance shah be given for any reasonable sum paid by way of commission or remuneration to a banker or any other person realising such dividend on behalf of the assessee. It is to be noted that sub-section (6A) of section 2 and subsections (1A) and (lB) u/s 12 were inserted in the Act by the Finance Act, 1955, with effect from the 1 st April, 1956. In the relevant assessment year, Section 16(2) of the Act was operative and ran as follows: \"16(2) For the purpose of inclusion in the total income of an assessee any dividend shall be deemed to be income of the previous year in which it is paid, credited or distributed or deemed to have been paid, credited or (1) [1953] 23 I.T.R. 230. distributed to him, and shall be increased to such amount as would, if income-tax (but not super-tax) at the rate applicable to the total income of the company ..... for the finan- cial year in which the dividend is paid, credited or distributed or deemed to have been paid, credited or distributed were deducted therefrom, be equal to the amount of the dividend.\" Mr. G.C. Sharma, Counsel for the appellants contends that the scope of the fiction created by Sec. 2(6A)(e) should be confined to those advances and loans only, which are not repaid but remain subsisting at the end of the previous year in which they were taken. It is argued that the sole object of this provision is to curb the evil of distributing profits under the guise of loans or advances; that if an advance or loan is repaid in the same accounting year, it cannot be said that it was a device for distribu- tion of profits. It is submitted that only in the case of an advance or loan which remains outstanding at the end of the accounting year, Sec. 2(6A) (e) raises an irrebutable presumption that it was a payment of dividend under the cloak of a loan. It is maintained that if this construc- tion of Sec. 2(6A)(e) is not adopted, it will lead to ex- tremely oppressive, unreasonable and anamolous results, including double taxation. To illustrate his point Counsel compares and contrasts the position of a shareholder who promptly, after a short period, repays the loan in the same year, with one who does not do so but allows it to remain outstanding and be carried over to the next year, and there- after a dividend is declared. If the interpretation adopted by the High Court is correct---says Mr. Sharma--the share- holder in the prior case who had promptly repaid the loan would not be entitled under sub-clause (iii) of Clause (e) of s. 2(6A) to set off any part of the subsequently declared dividend against the loan which he had repaid earlier, but will have to pay double tax on the same item, once on it as deemed dividend and then on it as declared dividend. His liability cannot be reduced to the extent of the dividend; because at the date on which the dividend was declared, no loan was outstanding against which. it could be set off. As against the former, the latter shareholder who makes full use of the loan and does not repay any part of the loan in the same year, but leaves it unpaid till a dividend is declared next year, will get relief by set off of the subse- quently declared dividend, in whole or in part against the loan outstanding against him. Another example cited by Mr. Sharma is of a case where the accumulated profit, say is Rs. 9,000/- and the share- holder takes an advance or loan of Rs. 3,000/- and he repays it after a week, and again gets the same amount (Rs. 3,000/-) back as a loan, and again repays it after a week, and again retakes the same amount as loan--all the three loans being taken and repaid, in the same year. If the unrestricted interpretation of the provision, sought by the Revenue were to be adopted, the same amount of loan in all the three transactions of loan would be subjected to triple taxation. Such an absurd and oppressive result, says the Counsel, would be against the intendment of the provi- sion and inconsistent with the scheme of the Act which generally aims avoids double taxation. The upshot of the arguments of Mr. Sharma is that under the Act, only that item or entity is taxable which is rationally capable of being considered as the income of the assessee; that an advance or loan which is genuine and not a subterfuge for payment of dividend and is not subsisting or outstanding at the end of the previous year on account of its repayment by the shareholder cannot reasonably be deemed to be his dividend income within the contemplation of s. 2(6A)(e) read with s. 12 of the Act. Mr. Sharma has taken us through various decisions having a bearing on the problem. The cases referred to, discussed or sought to be distinguished by him are: K.M.S. Lakshman Aiyar v. Assistant Income-tax Officer,(1) Navnit Lal C. Javeri v.K.K. Sen, Appellate Assistant Commissioner, Income-tax, Bombay;(2) Commissioner of Income-tax, Madras v.K. Srini- vasan; (3) Walchand & Co. Ltd. v. Commissioner of Income- tax, Bombay;(4) Commissioner, Income-tax Bombay v.R.K. Badiani. (5) Mr. Sharma also has referred to Sec. 108 of the Commonwealth income-tax Act as in force in Australia, and submitted that since the substance of Sec. 2(6A)(e) and s. 12(lB) has been borrowed from s.108 of the said Act and the object of these provisions in the two enactments is the same, it will not be illegitimate to determine and circum- scribe the scope of the fiction created by the provision in question in the light of the principles indicated in Sec. 108 of the Commonwealth Act. On the other hand, Mr. Ahuja appearing for the Revenue, submits that sub-clause (iii) which permits a set off against a loan deemed as dividend, does not apply in cases where the dividend is not declared in the same accounting year because to hold otherwise would be against the basic scheme ingrained in ss. 3 and 4 of the Act, according to which the unit of time for the purpose of assessment is the previous year of the assessee. Mr. Ahuja further maintains that even if during the same accounting year after repayment of the loan, a dividend is declared, sub-clause (iii) will apply, and the Income-tax Officer will not be debarred from reducing, in an appropriate case, the amount treated by him as 'dividend' under clause (e) of s. 2(6A) to the extent of the subsequently declared dividend, on the principle of notional set off underlying sub-clause (iii). The point sought to be made out is that since the treatment of the loan to the assessee shareholder as his dividend rests on a legal fiction, it will not be an illegitimate use of sub- clause (iii) to allow a notional set off to meet such a situation. Thus construed, says the Counsel, there would be no anomaly. Mr. Ahuja further submitted that s. 2(6A)(e) was enact- ed to suppress the evil of receiving profits or dividends under the guise of loans by the shareholders of a controlled Company, as such a malpractice resulted in evasion of tax. This provision, it is urged should be construed in a manner which suppresses the mischief and advances the remedy. It is maintained that the language of the provisions in question (1) [1959] XL I.T.R.469 (Mad.) (2) [19651 1, SCR 909-56 I.T.R. 198. (3) (1963) 50, ITR 788 (Mad). (4) 100 I.T.R. 598(Bom). (5) [1970] 76 I.T.R. 369 (Bom). is plain and unambiguous and no question of seeking external aid for its interpretation arises; the Court must give effect to it regardless of the hardship, if any, resulting therefrom. The sum and substance of his arguments is, that since all the factual ingredients necessary for raising the fiction contemplated by s. 2(6A) (e) and s. 12(lB) have been found to exist by the Income-tax authorities and the Tribu- nal, the loan had to be treated as the assessee's dividend income, the moment it was received, and the subsequent repayment of the loan could not neutralise or take it out of that category of 'income'. Counsel has drawn our attention to the observations of this Court in Navnit Lal C. Javeri v. K.K. Sen, Appellate Assistant Commissioner of Income-tax (supra). He has further adopted the reasoning of the Bombay High Court in Walchand & Co. v. Commissioner of Income-tax, Bombay (supra)- Section 2(6A)(e) and s. 12(lB) were inserted in the Act by. the Finance Act 1955 which came into operation on 1-4- 1955. These provisions seem to have been adapted, and borrowed with alterations, from s. 108 of the Commonwealth Income-tax Assessment Act in force in Australia. Section 108 reads as follows: \"Loans to shareholders, (1 ) If amounts are paid or assets distributed by a private company to any of its shareholders by way of advances or loans, or payments are made by the company on behalf of or for the individual benefit of, any of its shareholders, so much, if any, of the amount or value of those ad- vances, loans or payments, as, in the opinion of the Commissioner, represents distributions of income shall, for the proposes of this Act other than the purposes of Division 11A of Part III and Division 4 of Part VI be deemed to be dividends paid by the company on the last day of the year of income of the company in which the payment or distribution is made. (2) Where the amount or value of an advance, loan or payment is deemed, under the last preceding sub-section, to be a dividend paid by a company to a shareholder, and the company subsequently sets off the whole or a part of a dividend distributed by it in satis- faction in whole or in part of that advance, loan or payment, that dividend shall, to the extent to which it is so set off, be deemed, not to be a dividend for any purpose of this Act.\" It will be seen that under s. 108( 1 ) formation of \"the opinion of the Commissioner\" is the sine qua non for bring- ing this provision into provision into operation. It has been held be the Australian Board of Review that the mere fact that a shareholder in a private Company has become indebted to it, does not justify the formation of the opin- ion by the Commissioner such as is indicated in sub-section (1) of s. 108. \"There must be something that goes beyond a mere debt automatically arising upon a taking of accounts and which points to a subterfuge whereby a payment which, upon examination, is found to relate to the income of the Company and to represent the distribution thereof, is made to appear to be a loan or advance\" (I.C.T.B.R. (N.S.) Case No.80.) It is noteworthy that at least in one material aspect the Indian law is different from that under s. 108(1) of the Commonwealth Act as explained and interpreted by the Board in the case mentioned above. Under s. 108, the raising of the fiction is dependent upon a positive finding recorded by the Commissioner of Income-tax that the payment represents distribution of the Company's. income. But s. 2 (6A) (e) and s. 12 of the Act do not leave this question to the adjudica- tion of the income-tax authorities. Parliament has itself, in the exercise of its legislative judgment, raised a con- clusive presumption, that in all cases where loans are advanced to a shareholder in a Private Ltd. Company' having accumulated profits, the advances should be deemed to be the dividend income of the shareholder. It is this presumption juris et de jure which is the foundation of the statutory fiction incorporated in s. 2(6A)(e).. Thus s. 108 of the Commonwealth Act appears to be more reasonable and less harsh than its Indian counterpart. From the above discussion it emerges clear that the fiction created 2(6A) (e) read with s. 12(lB) of the Act is inexora- bly attracted as soon as all the conditions necessary for its application exist in a case. In Navnit Lags case (supra), this Court, after an analysis of these provisions, listed these conditions, as follows: \"... the combined effect of these two provisions is that three kinds of payments made to the. shareholder of a company to which the said provisions apply, are treated as taxable dividend to the extent of the accumu- lated profits held by the :company. These three kinds of payments are: (1 ) payments made to the shareholder by way of advance or loan, (2) payments made on his behalf and (3) payments made for his individual benefit. There are five conditions which must be satis- fied before section 12(lB) can be invoked against a shareholder. The first condition is that the company in -question must be one in which the public are not 'substantially interested within the meaning of section 23A as it stood in the year in which the loan was advanced. The second condition is that the borrower must be a shareholder at the date 'when the loan was advanced; it is immaterial what the extent of his shareholding is. The third condition is that the loan advanced to a shareholder by such a company can be deemed to be dividend only to the extent to which it is shown that the company possessed accumulated profit at the date of the loan. This is an important limit prescribed by the relevant section. The fourth condition is that the loan must not have been advanced by' the company in the ordinary course of its busi- ness. In other word's, this provision would not apply to cases where the company which advances a loan to its shareholder earnes on the business of money lending itself; and the last condition is that the loan must have remained outstanding at the commencement of the shareholders previous year in relation to the assessment year 1955-56.\" (emphasis supplied) The first four conditions factually exist in the instant case. The last condition is not applicable because it was a transitory provision 6--707 SCI 77 applicable to the assessment year 1955-56 only, while we are concerned with the assessment year 1957-58 and the previous year is the calendar year 1956. There is no dispute that the company is a controlled (Private Ltd.) company in which the public are not substantially interested within the meaning of s. 23A. Further-the assessee is admittedly a shareholder and Managing Director of that Company. It is also beyond controversy that at all material times, the company possessed \"accumulated profits\" in excess of the amount which the assessee-shareholder was paid during the previous year. The Income-tax Officer found that on January 1, 1956, the accumulated profits of the Company amounted to Rs. 6,83,005/- while from, 11.1.1956 to 12.11.1956, the assessee received in cash from time to time from the Company payments aggregating Rs. 4,97,449/-. After deducting the opening credit balance and some other items credited to his account, the Income-tax Officer found that in the previous year the assessee share-holder had received a net payment of Rs. 2,72,703/- by way of loan or advance from the Compa- ny. The Company's' business is not money lending and it could not be said that the loans had been advanced by the company in the ordinary course of its business. Thus all the factual conditions for raising statutory fiction created by ss.2(6A)(e) and 12(IB) appeared to have been satisfied in the instant case. Mr. Sharma, however, contends that in order to attract the statutory fiction one other essential condition is, that the loan or advance must be outstanding at the end of the previous year, and if the loan had ceased to exist owing to repayment or otherwise before the end of the year-as in the present case-the fiction cannot be invoked. In this connec- tion, Counsel has again referred to the last limb of s. 108 (1) of the Commonwealth Income-tax Act, according to which, the payment to a shareholder by way of advance or loan is to be treated as a dividend paid by the Company on the last day of the year of income of the Company in which the payment is made. It is urged that the principle in the last limb of sub- section (1) of s. 108 of the Commonwealth Act should also be read into. the Indian statute, It is maintained that the omission of such words from ss. 2(6A) (e) and 12(lB) does not show that the intendment of the Indian Legislature was different. According to the Counsel what is implicit in s. 108(1) of the Commonwealth Act, is implicit in ss. 2(6A)(e) and 12(1B) and the general scheme of the Act which re- quires that the assessment is to be made on the basis of total income of the whole previous year. Such a view concludes Mr. Sharma, would also be in consonance with reason and justice. We have given anxious thought to the persuasive argu- ments of Mr. Sharma. His arguments, if accepted, will certainly soften the rigour of this extremely drastic provi- sion and bring it more in conformity with logic and equity. But the language of ss. 2(6A) (e) and 12(1B) is clear and unambiguous. There is no scope for importing into the statute words which are not there. Such importation would be, not to construe, but to amend the statute. Even if there be a casus omissus, the defect can be remedied only by legislation and not by judicial interpretation. To us, there appears no justification to depart from the normal rule of construction according to which the intention of the legislature is primarily to be gathered from the words used in the statute. It will be well to recall the words of Rowlatt J. in Cape Brandy Syndicase v. I.R.C.(1) at p. 71, that \"in a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no. presumption as to a tax. nothing is to be read in, nothing is to be implied. One can only look fairly at the language used\". Once it is shown that the case of the assessee comes within the letter of the law, he must be taxed, however great the hardship may appear to. the judicial mind to be. In our opinion, the Indian Legislature has deliberately omitted to use in ss. 2(6A)(e) and 12(lB) words analogous to those in the last limb of sub-section (1) of s. 108 of the Commonwealth Act. When Sections 2(6A) (e) and 12(lB) were inserted by the Finance Act, 1955, Parliament must have been aware of the provision contained in s. 108 of the Common- wealth Act. In spite of such awareness, Parliament has not thought it fit to borrow whole hog what is said in s. 108 (1 ) of the Commonwealth Act. So far as the last limb of s. 108(1) is concerned, our Parliament imported only a very restricted version and incorporated the same as the 'fifth condition' in sub-s. (lB) of s. 12 to the effect, that the \"payment deemed as dividend shall be treat- ed as a dividend received by him in the previous year relevant to the assessment year ending on the 31st day of March, 1956 if such loan or advance remains outstanding on the last day of such previous year\". The word \"such\" pre- fixed to the \"previous year\" shows that the application of this clause is confined to the assessment year ending on 31-3-1956. In the instant case we are not concerned with the assessment year ending on 31-3-56. This highlights the fact that the Legislature has deliberately not made the subsist- ence of the loan or advance, or its being outstanding on the last date of the previous year relevant to the assessment year, a prerequisite for raising the statutory fiction. In other words, even if the loan or advance ceases to be outstanding at the end of the previous year, it can still be deemed as a 'dividend' if the other four conditions factual- ly exist, to the extent of the accumulated profits possessed by the Company. At the commencement of this judgment we have noticed some general principles, one of which is, that the previous year is the unit of time on which the assessment is based (s. 3). As the taxability of an income is related to its receipt or accrual in the previous year, the moment a dividend is received whether it is actual dividend declared by the company or is a deemed dividend, income taxable under the residuary head, \"income from other sources\", arises. The charge being on accrual or receipt the statutory fiction created by s. 2(6A)(e) and s.12(IB) would come into opera- tion at the time of the payment by way of advance or loan, provided the other conditions are satisfied. (1) (1921)1,K.B. 64 atp. 71. We do not propose to examine the soundness or otherwise of the illustrations given by Mr. Sharma since they are founded on assumed facts which do not exist in the present case. For the foregoing reasons we would answer the question posed in favour of the Revenue and dismiss this appeal with costs. P.B.R. Appeal dismissed.",
        "146535534": "REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.9684 OF 2011 BANGALORE INTERNATIONAL AIRPORT AREA PLANNING AUTHORITY \u2026.Appellant VERSUS BIRLA SUPER BULK TERMINAL (NOW A UNIT OF ULTRA TECH CEMENT LTD.) AND ORS. \u2026.Respondents JUDGMENT R. BANUMATHI, J. This appeal arises out of the judgment dated 21.10.2005 passed by the High Court of Karnataka at Bangalore in Writ Appeal No.3688 of 2002 in and by which the High Court has set aside the order passed by the Single Judge thereby setting aside the betterment fee levied by the KTCP by holding that the very acquisition under the Industrial Area Development Act involve change of land use and development by KIADB and while so, Signature Not Verified further levy of betterment fee under Section 18 of the KTCP is not Digitally signed by MAHABIR SINGH Date: 2018.11.27 16:57:16 IST Reason: sustainable. 2. Brief facts of the case which led to filing of this appeal are that the provisions of Karnataka Town and Country Planning (KTCP) Act, 1961 to provide for regulation of planned growth of land use and development and for making and execution of town planning schemes in the State of Karnataka. The State Government, by virtue of powers conferred under Section 4-A of the KTCP Act, issued Notification No.HUD142 MNX 95 dated 12.01.1996 declaring the area shown in the Schedule to the said notification as \u2018Bangalore International Airport Planning Area\u2019 w.e.f. 12.01.1996. On the same day, the State Government issued another Notification No.HUD 142 MSX 95 constituting the appellant as the Planning Authority for the said local planning area. The State Government by Notification dated 14.05.1997 added some other villages including the villages in question in Doddaballapur Taluk in the planning area of the appellant. 3. Respondent No.1 approached the State Government to approve a project to establish the Cement Terminal near Bangalore which was approved by the Single Window Agency by its clearance order dated 29.11.1996. By exercising powers under Sections 3(1) and 1(3) of KIAD Act, the Karnataka Industrial Areas Development Board (KIADB), issued a Notification on 03.07.1997 declaring some areas as industrial areas. Respondent No.1 was allotted lands by KIADB in Thippapura, Veerapura, Bashettinalli of Doddaballapur Taluk vide allotment letter dated 12/13.01.1998. Subsequently, respondent No.1 was asked to take possession of the said lands vide letter dated 29.05.1998 by KIADB and accordingly, possession certificate was issued on 16.07.1998 and respondent No.1 took possession on 16.7.1998. 4. On 8.6.1998, Respondent No.1 applied to Appellant authority seeking permission for construction of Bulk Cement Terminal. The Appellant inspected the spot along with KIADB Special Land Acquisition Officer, Urban Planning Director and Deputy Metropolitan Commissioner. By letter dated 17.9.1998, R-1 was informed by the Appellant that on inspecting the land once again and being satisfied that there is an approach road measuring 15 feet to the proposed land, it was decided to approve the development plan as per Rules. The Appellant also informed Respondent No.1 to pay betterment charges @ Rs. 75 per sq. mtr., inspection charges @ Rs. 150 per hectare, building construction charges, penalty @ Rs. 150 per hectare and road charges @ Rs. 1 lakh per acre totalling Rs.1,48,29,173/- pertaining to the sanctioning of the Development Plan consisting of the plans of storage, packing and administrative-office buildings. 5. Respondent No.1 objected to the demand by a letter dated 16.10.1998 stating that it had already made payment to KIADB towards allotment of lands, and therefore, development fee for constructing the commercial establishment is not necessary. Appellant issued notice dated 08.12.1998 under section 15 (4) of KTCP Act stating that as per Section 15 (1) of the KTCP Act, every development has to be proceeded only after getting necessary Commencement Certificate from the Appellant. It was stated in the notice that records reveal that no permission has been obtained as required under the provisions of KTCP Act. KTCP asked respondent No. 1 to stop work and discontinue use of the property and to show cause as to why action should not be taken to remove or pull down the work and to restore the land to its original condition. 6. Respondents No. 1 and 2 filed Writ Petitions No. 37717- 719/1998 dated 14.12.1998 before the High Court challenging the said notice dated 17.9.1998 and notice dated 8.12.1998. Respondent No.1 contended that the appellant has no authority to demand any development charges since the lands in the question were allotted in favour of Respondent No.1 by the KIADB, under the provisions of Karnataka Industrial Areas Development (KIAD) Act. The Single Judge of the High Court dismissed the Writ Petitions holding that in view of the declarations issued under section 4-A of the KTCP Act, the lands in question continue to be within the planning area. The Single Judge further held that when respondent No. 1 itself has submitted to the jurisdiction of the appellant by making an application for sanction of plan and for permission and while so, it is not open for them to say that the appellant has no jurisdiction or authority to demand development charges. The learned Single Judge held that by virtue of the power conferred on the appellant under Section 18, the appellant has rightly demanded the development charges having permitted Respondent No. 1 to use the land for establishment of an industry. 7. In the appeal filed by the respondents No. 1 and 2, the Division Bench held that KIAD Act is a special Act enacted for securing the establishment of industries in the State of Karnataka and the industrial area is governed by the provisions of the Act. The High Court further held that for the industrial plots allotted by KIADB, the change of land use and the development thereof comes under the purview of the special enactment KIAD Act and not under the general law of KTPC Act and the provisions of special Law will prevail over the provisions of the general Law. The High Court held that the only requirement for respondent No.1 is to obtain clearance from the appellant to show that the construction of the industrial unit is in conformity with the zonal regulations, etc. and this requirement does not in any way attract the provisions of Section 18 of the KTCP Act so as to empower the appellant to levy conversion fee/betterment fees. 8. Ms. Kiran Suri, learned senior counsel for the appellant submitted that the High Court erroneously held that Sections 14, 15 and 18 of the KTCP Act are not applicable to the lands acquired under the KIAD Act. The learned senior counsel submitted that the provisions of KIAD Act mainly deals with the declaration of an area as an industrial area and the acquisition of the lands for the purpose of industrial development and allotment of the said land and there are no provisions in the KIAD Act with regard to the construction thereon or the developmental activities to be carried out in the industrial sites and one has to fall back upon the provisions of the KTCP Act for carrying on any development activities over the said land which brings into action Sections 14 and 15 of the KTCP Act for seeking permission and the power of the Planning Authority to levy the betterment fee under Section 18 of the KTCP Act. The learned senior counsel further submitted that the provisions of KTCP Act govern the entire planning and development of the buildings within the State of Karnataka including the industrial area falling within the planning area of the appellant authority and Section 18 of the KTCP Act automatically comes into play empowering the appellant to charge the betterment fees. It was submitted that the areas of operation of KTCP Act and KIAD Act are entirely different with different aims and objectives and therefore, the principle of interpretation of \u201cspecial Act prevails over general Act\u201d (Generalia Specialibus Non Derogant) would have no application and the same has been wrongly applied by the High Court and the Division Bench erred in reversing the judgment of the Single Judge. 9. Per contra, Mr. Bharat Sangal, learned counsel for the first respondent submitted that once the area is allotted to KIAD Board, the acquisition and the allotment being for industrial purpose which involves the change of land use and its development is controlled by the KIAD Board and the provisions of KIAD Act and it falls outside the purview of KTCP Act. The learned counsel for the first respondent further submitted that KIAD being a Special law, it will override the provisions of Sections 14, 15 and 18 of KTCP Act and a general law like KTCP Act cannot defeat the provisions of the special Law to the extent to which they are in conflict. The learned counsel further submitted that the moment the land was acquired for industrial purpose, it assumes the character of industrial area and no further conversion and development is required and hence, there is no question of conversion fee/betterment fee be paid to KTCP and the entire field is covered by KIAD Act and KIADB Regulations which exclude the application and operation of KTCP Act, 1966. 10. The learned counsel appearing for the fifth respondent-KIADB submitted that once an area or land is acquired and declared as an industrial area under Section 3(1) of KIAD Act, the said area gets demarcated for industrial use and the KIADB is duty bound to develop the area for industrial activities and the ancillary area by virtue of the powers and functions under Section 14(C) of KIAD Act. There is no further requirement to apply for change of land use under the KTCP Act. It was further submitted that when any industrial area is set up by KIADB, all infrastructure facilities are also installed and the cost and the expenditure incurred by the KIADB is passed on to the entrepreneurs or allottees who intend to set up facilities for industrial activity in the State of Karnataka and there is no question of payment of conversion charges/betterment fee under Section 18 of the KTCP Act. 11. We have carefully considered the rival contentions and perused the impugned judgment and materials placed on record. Upon consideration of the materials placed on record, the following points arise for determination in this appeal:- (i) Whether the High Court was right in holding that Sections 14, 15 and 18 of the KTCP Act are not applicable when the lands are declared as industrial areas under Section 3 of KIAD Act and the payment of betterment fees for the purported development works under the provisions of the KTCP Act does not arise? (ii) When the areas of operation of KIAD Act and KTCP Act are wholly different with different aims and objectives, whether the High Court was right in saying that the principle of interpretation of Special Act prevails over the General Law is applicable? 12. Karnataka Town and Country Planning Act, 1961 (KTCP Act) has been enacted for regulation of planning, coordination and supervision of the orderly development of the areas within the State of Karnataka. KTCP Act is for the regulation of the planned growth of land use and development and for the making and execution of town planning schemes in the State. 13. A combined reading of Section 14 with Section 18 of the KTCP Act leads to the conclusion that the Planning Authority under KTCP Act is entrusted with the function of granting licence to put up construction on the land including the land allotted by the KIAD Board to the allottees under the KIAD Act. This is clear from the non-obstante clause in KTCP Act i.e. Section 76-M which declares that the provisions of Section 76-M of KTCP Act along with rules and regulations and bye-laws made thereunder shall have effect notwithstanding anything inconsistent contained in any other law. 14. For proper appreciation of the contentions urged, we may usefully refer to the relevant provisions of both KTCP Act and KIAD Act. The Preamble of the KTCP Act reads as under:- \u201cAn Act to provide for the regulation of planned growth of land use and development and for the making and execution of town planning schemes in the State of Karnataka. Whereas it is necessary and expedient,\u2014 (i) to create conditions favourable for planning and replanning of the urban and rural areas in the State of Karnataka, with a view to providing full civic and social amenities for the people in the State, (ii) to stop uncontrolled development of land due to land speculation and profiteering in land, (iii) to preserve and improve existing recreational facilities and other amenities contributing towards balanced use of land; and (iv) to direct the future growth of populated areas in the State, with a view to ensuring desirable standards of environmental health and hygiene, and creating facilities for the orderly growth of industry and commerce, thereby promoting general standards of living in the State; And whereas, in order to ensure that town planning schemes are made in a proper manner and their execution is made effective, it is necessary to provide that a local authority shall prepare a development plan for the entire area within its jurisdiction;\u201d 15. \u201cDevelopment\u201d and \u201cLocal Authority\u201d are defined in Section 2 of the KTCP Act as under:- \u201cSection 2. Definitions \u2013 In this Act, unless the context otherwise requires. \u2013 \u2026\u2026 (1-c) \u201cDevelopment\u201d with its grammatical variations, means the carrying out of building, engineering, mining, or other operations in, on, over or under land or the making of any material change in any building or land, or in the use of any building or land and includes sub-division of any land; \u2026\u2026 [(3-a) \u201cLocal authority\u201d means a municipal corporation, municipal council, Town Panchayat or Grama Panchayat and a Local Authority is a \u2018local authority concerned if any land within its local limits falls in the area of a plan prepared or to be prepared under this Act; Admittedly, appellant herein is the planning authority within the meaning of Section 2(7) of the Act. 16. Section 14 of the KTCP Act deals with enforcement of Outline Development Plan (ODP) and Regulations and it prescribes that on or from the date on which a declaration of intention to prepare ODP is published under Section 10(1), every land use, every change in the land use and every development in the area covered by the plan shall conform to the KTCP Act, the ODP and the Regulations as approved by State Government under Section 13(3). Section 14(1) stipulates that every land use, every change in land use and every development in the areas covered by the plan shall conform to the provisions of the Act, the Outline Development Plan and the regulations, as finally approved by the State Government under sub-section (3) of Section 13. Section 14(2)(a) of the Act defines the expression \u2018development\u2019 which means the carrying out of building or other operation in or over or under any land or the making of any material change in the use of any building or other land. 17. Section 15 authorizes the Planning Authority to grant permission for development of building or land. Section 18 confers the power to collect betterment fee and it says where the permission for the change in the use or development of any land or building is granted under Section 15 or Section 16, and such change or development is capable of yielding betterment income to the owner, the Planning Authority may levy a prescribed fees not exceeding one third of the increase in the value of the land or building in the prescribed manner for permitting such use or development. In exercise of its powers under Section 10, the Planning Authority declared its intention of making ODP by a notification dated 29.03.1996 which was made public. The authority resolved to adopt the relevant government orders with regard to charge of betterment fees dated 05.08.1996. 18. Section 18 of the KTCP Act confers the power upon the Planning Authority to collect betterment fee where permission for a change in the use or development of the land or building is granted under Section 15 or Section 16 and such change or development is capable of yielding a better income to the owner, the Planning Authority may levy a prescribed fee not exceeding one-third of the estimated increase in the value of the land or building in the prescribed manner for permitting such change in use or development. Section 18 of the KTCP Act reads as under:- Section 18. Recovery of a fee in certain cases of permission for change in the use of land or building.- [(1) Where permission for change of land use or development of land or building is granted under section 14-A or section 14-B or Section 15 or Section 17 and such change or development is capable of yielding a better income to the owner, the Planning Authority may levy a prescribed fee not exceeding one-third of the estimated increase in the value of the land or building in the prescribed manner for permitting such change of land use or development of land or building.] \u2026\u2026 [(3) The State Government may exempt any Board, Authority or body constituted by or under any law owned or controlled by the State Government or Central Government or an infrastructure Project promoted or implemented by any Company or person and approved by the State Government or Central Government from the payment of fee specified under sub-section (1). 19. The non-obstante clause in Section 76-M of the KTCP Act reads as under:- \u201cSection 76-M. Effect of other Laws.\u2014(1) Save as provided in this Act, the provisions of this Act and the rules, regulations and bye-laws made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law. (2) Notwithstanding anything contained in any such other law,- (a) when permission for development in respect of any land has been obtained under this Act, such development shall not be deemed to be unlawfully undertaken or carried out by reason only of the fact that permission, approval or sanction required under such other law for such development has not been obtained; (b) when permission for such development has not been obtained under this Act, such development shall not be deemed to be lawfully undertaken or carried out by reason only of the fact that permission, approval or sanction required under such other law for such development has been obtained.\u201d 20. The purpose of Karnataka Industrial Areas Development Act, as seen from the Preamble of the Act, is to make special provisions for securing the establishment or industrial areas in the State and generally to promote the establishment and orderly development of the industries therein and for that purpose to establish Industrial Areas Development Board. The Preamble of the KIAD Act reads as under:- \u201cAn Act to make special provision for securing the establishment of industrial areas in the State of Karnataka and generally to promote the establishment and orderly development of industries therein, and for that purpose to establish an Industrial Areas Development Board and for purposes connected with the matters aforesaid. Whereas it is expedient to make special provision for securing the establishment of industrial areas in the State of Karnataka and generally to promote the establishment and the orderly development of industries in such industrial areas, and for that purpose to establish an Industrial Areas Development Board and for purposes connected with the matters aforesaid.\u201d 21. As per Section 27 of the KIAD Act, the provisions of the Act shall apply to such areas from such date as have been notified by the State Government under sub-section (3) of Section 1. Section 47 is the non-obstante clause of KIAD Act which reads as under:- \u201cSection 47 \u2013 Effect of provisions inconsistent with other laws \u2013 The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law.\u201d 22. By careful reading of the provisions of both the Acts, it is seen that the object of KIAD Act is to make special provisions for securing the establishments of industrial areas in the State and to generally promote the establishment and orderly development of the industries. On the other hand, KTCP Act is for regulation of planned growth of land use and development and for the making and execution of town planning schemes in the State. Both the Acts i.e. KIAD Act and KTCP Act operate in different fields. Considering the objects of both the enactments, we find that there is no merit in the plea of the fifth respondent that once a land is acquired for the purpose of industries under the KIAD Act and made over to the Board, the use of the land becomes \u2018use for industrial purpose\u2019 and no further permission for change of use of land by KTCP or any other authority is required. 23. Though heading of Section 18 of the KTCP Act is \u201cRecovery of a fee in certain cases of permission for change in the use of land or building\u201d, the levy of prescribed fee is not only for permission for change of land use but also for development of land or building as contemplated under Section 14A or Section 14B or Section 15 or Section 17 of the Act. As pointed out earlier, \u201cdevelopment\u201d is defined in Section 2(1-c) of KTCP Act which inter alia provides for \u201cin the use of any building or land and includes sub-division of any land\u201d. From a combined reading of Section 18 with Section 2(1-c) of KTCP Act, it is clear that the levy of prescribed fee under Section 18 of the Act is not merely for change of land use but also for development of land or building. The language of expression used in Section 18 that \u201cpermission for change of land used\u2026..\u201d and \u201cdevelopment of land or building\u2026.\u201d is to be interpreted in the light of the object of KTCP Act as enunciated in the Preamble of the Act. 24. Power to Exempt:- Prior to Amendment Act 11 of 1997 (with effect from 19.02.1997), Section 16 of KIAD Act provided for exclusion of operation of other laws in respect of industrial areas. Section 16(C) provided that the State Government may by notification provide that the provisions of any other law relating to local authority which is in force in that area shall cease to apply and thereupon such provision was ceased to apply thereto. In exercise of such powers, the State Government issued the Circular dated 31.12.1990 directing Urban Development Authorities, City Improvement Trust Boards, Planning Authorities not to collect the betterment charges from the statutory bodies like Karnataka Housing Board and KIADB. Section 16 of the KIAD Act was omitted by Act 11 of 1997 (with effect from 19.02.1997). Subsequently by the government order dated 17.07.1997, the above Circular dated 31.12.1990 was revoked and the authorities above named have been directed to collect the betterment charges as per law. 25. The learned senior counsel for the appellant has drawn our attention to the Minutes of the Meeting held on 04.12.1999 where the question of levy of fees by KTCP in the Bangalore Metropolitan Region came up for discussion. The said meeting was attended by various authorities including the Finance Department, Commissioner of KIADB, Director of Town Planning etc. After detailed discussion, the following decisions were taken:- \u201cAfter detailed discussions, the following decisions were taken: 1. The Principal Secretaries to Government UDD & RDPR, in consultation with the Principal Secretary to Government Commerce & Industries Department and Secretary, Law Department would examine all aspects pertaining to constitution of Industrial Townships in identified industrial areas and come up with firm proposals by end of December, 1999. 2. KIADB will obtain approval from the concerned Planning Authority before developing any new industrial area; 3. The matter regarding rationalization of various charges, fees and other levies under the KTCP Act and RDPR Act will be re-examined by the concerned departments, having regard to what is prevailing in neighboring States and firm proposals will be formulated within a period of one month; 4. The matter regarding delegation of powers to KIADB for granting approvals for building plans for industrial units to be established in approved industrial areas will be examined by the Urban Development Department and if necessary suitable amendments would be effected to the concerned Town Planning Act; and 5. Principal Secretary to Government Commerce & Industries Department will organize a meeting of major industries who had not yet paid certain charges and fee and try to sort out the matter in consultation with the Urban Development Department; Concluding the discussions, the Minister for Large & Medium Industries and Infrastructure Development informed that the main objective of constituting industrial townships was to simplify and streamline the procedures and ensure that approvals and also ensure that these industrial areas are maintained properly which at present are in a sorry state of affairs. He suggested that a proper revenue sharing mechanism between township authority and concerned local bodies should be worked out to ensure that the local bodies are also strengthened and take development works outside the industrial area. In view of the inordinate delay in fulfilling the commitments which had been made in the 1993 policy he requested that all concerned departments should take immediate action to formulate a proposal which is acceptable to all the departments.\u201d [Underlining added] When the government of Karnataka, Finance Department and other departments and also the Commissioner for Industrial Development and other departments have participated in the abovesaid meeting and were all parties to the above decisions, it is not open to KIADB to resile from the minutes and put forth claim contrarily. Having been a party to the discussion in the meeting held on 04.12.1999, the State of Karnataka is also not justified in contending that the lands in question are included in the industrial area declared by the State Government and hence, not bound to pay the development fee under Section 18 of the Act. 26. It was stated by the learned senior counsel for the appellant that the State of Karnataka has not filed its counter in the High Court. It is also to be pointed out that after dismissal of the writ petition by the Single Judge, a writ appeal was preferred only by the first respondent. The State of Karnataka has neither filed any appeal nor made its stand clear before the High Court. In the Supreme Court also, the State of Karnataka has not filed its counter affidavit. Only at the time of arguments, the State of Karnataka has filed written submissions stating that the provisions of the KTCP Act are not attracted to the industrial area covered under KIAD Act and that Section 18 of the Act will have no application and hence, no fee could be levied thereunder. In its written submissions, the stand taken by the State of Karnataka reads as under:- \u201c\u2026\u2026It is stated that in the present case, the lands in question are included in the industrial area declared by the State Government and the change in the land use and development thereof are governed by the provisions contained under Karnataka Industrial Areas Development Act, 1966 Sections 14 and 15 of the Karnataka Town and Country Planning Act, 1961 are not at all attracted and consequently Section 18 thereof will have no application to such lands and hence no fee could be levied there under by respondent No.4 and the petitioner\u2026..\u201d Since the State of Karnataka has not made its stand clear before the High Court nor any counter affidavit sworn in by any responsible officer of the State of Karnataka has been filed, we are not inclined to go into the merits of the stand taken by State of Karnataka in its written submissions. More so, when the State is a party to the meeting held on 04.12.1999 and concern expressed in the meeting as to the non-payment of development charges and the decisions taken thereon. The State appears to have been sitting over the fence and watching its two key authorities under KTCP Act and KIAD Act litigating. 27. Section 14 read with Section 18 of the KTCP Act clearly connotes that the Planning Authority is entrusted with the function of granting licence to put up construction on the land including the land acquired and allotted by the Board under KIAD Act. This is also clear from the provisions contained in the non-obstante clause in Section 74-M of the KTCP Act which declares that the provisions of the said Act and the Rules, Regulations and Bye-Laws made thereunder shall have effect notwithstanding anything inconsistent contained in any other law. There is nothing in the provisions of this Act to exclude or exempt the lands which are covered by the KIAD Act. 28. In its lengthy judgment, the High Court inter alia observed that the very acquisition for the industrial areas and the development by KIADB by itself involve the change of land use and the development by the KIADB and while so, seeking permission for change of land use and its development under the KTCP Act will be superfluous. The relevant findings of the High Court in the impugned judgment are as under:- \uf0b7 So far as the land acquired under KIAD Act and utilised for industrial purpose and development thereof will have to be made by the Board in the area declared under the Act as an industrial area. The industrial activities in the industrial area are developed and controlled by the KIADB in accordance with the provisions of KIAD Act and it is a part of functions of KIADB; \uf0b7 The non-obstante clause-Section 47 of KIAD Act excludes the application of the provisions of any other Act; \uf0b7 The industrial activities in the industrial area, however, shall not contravene other laws and it shall be in conformity with Zoning Regulations and the Planning Authority constituted under the KTCP Act. The submission of plan to the appellant- Authority is only to ensure that the establishment of the industrial unit by the allottee in the industrial area is in conformity with the Zonal Regulations. Only for this limited purpose, the allottee of the industrial plot must submit its plan to the Planning Authority constituted under the KTCP Act for the purpose of obtaining NOC; \uf0b7 For granting approval and for issuance of NOC, the Planning Authority under KTCP Act cannot levy betterment fee under Section 18 of the KTCP Act because the allottee of an industrial plot does not seek for a change in the land use or development of the said land. There was already a change of land use and its development as an industrial unit which is the function of the Board constituted under the Special Act i.e. KIAD Act; and \uf0b7 When the entrepreneurs do not seek for change in land use and its development within the meaning of Sections 14 and 15 of the KTCP Act, the question for levying any fee for change of land use under Section 18 of the Act will not arise. 29. The High Court, on the one hand, took the view that Sections 14, 15 and 18 of KTCP Act are not applicable to the industrial area which is governed by KIAD Act. On the other hand, the High Court held that for compliance of the provisions of Sections 14 and 15 of the KTCP Act for all the establishment of the industrial unit, the allottee has to seek approval of the Planning Authority constituted under KTCP Act and KTCP is to scrutinise the plan and other documents so as to ensure that the establishment of the industrial unit by the allottee in the industrial area is in conformity with the Zonal Regulations etc; but KTCP is not to levy betterment fee. The findings of the High Court are self-contradictory to each other. 30. As discussed earlier, the Planning Authority constituted under KTCP Act is entrusted with the functions of granting approval for any development on the land within its jurisdiction including the land acquired and allotted by the Board under KIAD Act. Per contra, the enactment of KIAD Act is to make special provision for securing the establishment of the industrial area in the State and for that purpose to establish Industrial Areas Development Board. The provisions of both the Acts make the intention of the legislature very clear. As rightly submitted by the learned senior counsel for the appellant that if there are two possible interpretations of an enactment, one should avoid the construction which would reduce the legislation to futility and should rather accept the broader interpretation. A statute is designed to be workable and the interpretation thereof by the court should be to secure that object. In so far as the \u201cindustrial area\u201d allotted by KIADB, the interpretation given by the High Court to the provisions of KTCP Act would render the existence of the Planning Authority like the appellant to futility. While on the one hand, the High Court has directed the first respondent to obtain permission from the Planning Authority under KTCP Act and that the appellant- Authority to scrutinise those plans only to ensure that they are in conformity with the Regulations etc. At the same time, the High Court is saying that the appellant-Authority cannot collect the betterment fees. In our considered view, such findings are contradictory to each other and cannot be sustained. 31. The High Court held that KIAD Act being a Special Act, the same will prevail over KTCP Act which is a General Act. KTCP Act is applicable to all the developmental activities in respect of any land coming within the area of Outline Development Plan (ODP) and the lands in question even though situated in industrial area comes within the area of ODP of the Planning Authority. The developmental activities over the said land have to be carried on only with the permission of the Authority and both the enactments have to be harmoniously construed so as to give effect to each of the Acts enacted by the State Government. 32. The question to be considered in this regard is whether KIAD Act is a special enactment and KTCP Act a general Act and whether the maxim \u2018Generalia Specialibus Non Derogant\u2019 is applicable as held by the High Court. Rule of interpretation says that a statute is best interpreted when we know why it was enacted, which can be seen from the preamble of an Act. As discussed earlier, as per the preamble of the KIAD Act, it is an Act to make special provision for securing the establishment of industrial areas in the State of Karnataka and generally to promote the establishment and orderly development of industries therein. KTCP Act on the other hand, as we have pointed out earlier, was enacted to provide for the regulation of planned growth of land use and development and for the making and execution of town planning schemes in the State of Karnataka. Thus, considering the legislative intent of the two enactments, it is seen that there is nothing in the KIAD Act to destroy the authority of the Appellant which has its own assigned role to perform under the provisions of the KTCP Act. Considering the object and purpose for which both the Acts were enacted, there is no inconsistency or overlapping between the two enactments and the power of authorities constituted under the Acts. As the areas of operation of KIAD Act and KTCP Act are wholly different, there is no question of applicability of the maxim Generalia Specialibus Non Derogant. 33. Seeking grant of permission for construction of industrial buildings \u2013 Bulk Cement Terminal near Dodaballapur Railway Station, the first respondent submitted its application to the appellant-Authority on 08.06.1998. On that application for sanctioning the development plan consisting of the plan of storage, packing and administrative office buildings in the plot in question, the appellant-Authority vide order dated 17.09.1988 levied betterment charges, road charges etc. of Rs.1,48,29,173/- under various heads. In response to the same, the first respondent has sent its reply on 16.10.1998 inter alia stating that:- (i) since the first respondent has made payment to KIADB towards allotment of lands considering the first respondent as commercial establishment and levy of development at the rate of Rs.75/- per sq. mtr. may not be necessary; (ii) the construction put up by the first respondent are industrial buildings and not commercial establishments; and (iii) the first respondent is situated in Bengaluru Rural (North) District and it is not situated in Bengaluru Urban District attracting levy of such higher fee. 34. By careful perusal of the first respondent\u2019s response dated 16.10.1998, it is seen that the first respondent has not challenged the jurisdiction of appellant-Authority to levy betterment charges and that the objections that the first respondent has raised were regarding the rate of betterment fee treating the first respondent as commercial establishment and the fact that they are situated in Bengaluru Rural (North) District and not in Bengaluru Urban District. When the first respondent has not raised the objection regarding the jurisdiction/competence of the appellant-Authority to levy betterment fee, the first respondent was not justified in turning around and challenging the powers of the appellant-Planning Authority to levy betterment charges. The High Court, in our view, did not properly consider the response of the first respondent and the High Court erred in saying that the role of KTCP is only to scrutinise the application to ensure that the plan is in conformity with the provisions of the KTCP Act and that it cannot levy the fee. 35. It is also pertinent to note that for obtaining sanction of their plan, the other allottees of industrial plots by KIADB have paid the betterment charges and also the road cess as demanded by the appellant-Authority. In this regard, the learned senior counsel for the appellant has drawn our attention to the communication from ITC Limited including the Pay Order dated 01.08.1997 for payment of betterment charges of Rs.3,01,71,600/-. When other allottees of industrial plots by KIADB have paid betterment charges and road cess for obtaining sanction of the plan, the first respondent cannot challenge the levy and contend that they are not liable to pay the betterment charges. 36. The High Court, in our view, ignored the important provisions of KTCP i.e. Sections 14 and 15 regarding the development act and the development activities including the industrial areas fall within the scope of the appellant-Authority and that the first respondent while obtaining the approval from the appellant-Authority for its plan is bound to pay the betterment charges, road cess and other charges as per the laws. The learned Single Judge has rightly dismissed the writ petition filed by the first respondent and the Division Bench erred in reversing the same and the impugned judgment is liable to be set aside. 37. In the result, the impugned judgment of the High Court is set aside and this appeal is allowed. The first respondent is directed to pay Rs.1,48,29,173/- to appellant-Authority with interest at the rate of 6% from the date of the demand (17.09.1998) within a period of two months from this date, failing which the respondent is liable to pay the interest at the rate of 12% thereafter on the accrued amount. \u2026\u2026\u2026\u2026\u2026.\u2026\u2026\u2026\u2026\u2026J. [R. BANUMATHI] \u2026\u2026\u2026\u2026\u2026.\u2026\u2026\u2026\u2026\u2026J. [INDIRA BANERJEE] New Delhi; November 27, 2018",
        "121357872": "1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 3195-3196 OF 2020 (ARISING OUT OF SLP(C)Nos.10972-10973 OF 2020) TRUSTEES OF H.C. DHANDA TRUST ...APPELLANT VERSUS STATE OF MADHYA PRADESH & ORS. ...RESPONDENTS J U D G M E N T ASHOK BHUSHAN,J. Leave granted. 2. The appellant by these appeals challenges the judgment of learned Single Judge of the High Court of Madhya Pradesh, Bench at Indore in Writ Petition No.8888 of 2011 dated 30.03.2017 dismissing the Writ Petition of the appellant as well as the judgment dated Signature Not Verified Digitally signed by 04.09.2017 of the Division Bench dismissing the Writ MEENAKSHI KOHLI Date: 2020.09.17 15:31:32 IST Reason: Appeal filed by the appellant against the judgment of the learned Single Judge. The Division Bench has dismissed the writ appeal vide its judgment dated 04.09.2017 holding it as not maintainable. 3. Brief facts of the case giving rise to these appeals are: Late Shri Harish Chand Dhanda, a Minister in erstwhile Government of Maharaja Holkar of Indore received the free gift of land measuring 108,900 sq.ft. (one lac eight thousand nine hundred) situate at Yeshwant Niwas Road, Indore by Order No.58 of 22.04.1946. Late Shri H.C. Dhanda got constructed in the above piece of land, a building known as \u2018Hotel Lantern\u2019. Another piece of land situate at 5, Ravindra Nath Tagore Marg, Indore was gifted to Late Shri H.C. Dhanda by his father-in-law late Col. V.B. Jadhav on 05.10.1948. Late Shri H.C. Dhanda possessed various other movable and immovable properties in the city of Indore with which we are not concerned in the present appeals. Late Shri H.C. Dhanda executed his last Will dated 26.10.2002. In his Will he mentioned his movable and immovable properties apart from the above two immovable properties and by his Will he created a Trust in which he appointed his son, Yogesh Dhanda as Chairman of Trust, Shri B.J. Dave, Chartered Accountant, Indore and one Shri Chhaganlal Nagar as member. The above two immovable properties apart from other properties were put in Trust under the aforesaid Will. All Trustees under the Will were the executors of the Will. Shri H.C. Dhanda died on 05.07.2003. 4. A meeting of Board of Trustees was held on 06.04.2005. A resolution was passed by Executors/Trustees to transfer and vest area by executing a Deed of Transfer with a site plan from the trustees to beneficiaries by registering the same. On 21.04.2005 a Deed of Assent was executed between M/s H.C. Dhanda Trust, a private trust as one part and Jogesh Dhanda and others as other part. By Deed of Assent the Trustees/Executors gave assent to complete the title of the Legatees and vest absolutely and forever in their favour both Lantern Hotel and Jahaj Mahal property. A notice was issued by the Collector of Stamps, District Indore stating that in Deed of Assent dated 21.04.2005 proper stamp duty has not been paid, 22.03.2007 was fixed for appearance. The notice further stated that why deficit stamp duty of Rs. 1,62,82,150/- on the document dated 21.04.2005, and ten times penalty should not be imposed. The Trust appeared before the Collector of Stamps and filed its objection. The Collector of Stamps passed an order dated 22.09.2008 holding the Deed of Assent dated 21.04.2005 as a gift deed. The Collector held that under Indian Stamp Act, 1899, the stamp duty payable on a gift deed would be 8% of the market value, Municipal duty 1% and Janpad duty 1%. The Collector found deficit duty to the extent of Rs.1,28,09,700/- and also imposed ten times penalty i.e. Rs.12,80,97,000/-. The order called upon the Trust to deposit amount of Rs.14,09,06,700/- within thirty days. Aggrieved against the order of Collector, Reference Application was filed by the appellant before the Board of Revenue, Madhya Pradesh, Gwalior. Board of Revenue vide its order dated 25.10.2011 upheld deficiency of stamp duty of Rs.1,28,09,700/- and ten times penalty of Rs.12,80,97,000/-. The order called upon the Trust to deposit amount of Rs.14,09,06,700/- within thirty days. Board of Revenue vide its order dated 25.10.2011 upheld the order of the Collector dated 22.09.2008 and dismissed the Reference Application. Challenging the order of the Board of Revenue as well as the Collector of Stamps a Writ Petition No.8888 of 2011 was filed by the appellant in the High Court of Madhya Pradesh. Learned Single Judge of the High Court vide its judgment dated 30.03.2017 dismissed the writ petition. Learned Single Judge upheld the order of the Collector by which deficiency in the stamp duty and ten times penalty was imposed. 5. An SLP was filed in this Court challenging the order of the learned Single Judge by the appellant which was withdrawn by the appellant on 4.5.2017 seeking liberty to file writ appeal in the High Court. The writ appeal was filed by the appellant being Writ Appeal No.255 of 2017 which has been dismissed by the Division Bench on 4.9.2017 holding the writ appeal as not maintainable. Aggrieved against the aforesaid two orders these appeals have been filed by the appellant. 6. This Court by its order dated 10.11.2017 issued limited notice to the following effect: \u201cIssue notice, returnable in six weeks, limited to the quantum of penalty that has been imposed by the Collector (Stamps). Subject to the condition that stamp duty is paid within a period of one month, there shall be stay of the order qua the penalty.\u201d 7. In response to the above notice the respondents have appeared. 8. We have heard Shri A.K. Chitale, learned senior counsel, for the appellant and Shri Tushar Mehta, learned Solicitor General, for the State. 9. Shri A.K. Chitale, learned senior counsel appearing for the appellant submits that the Deed of Assent executed on 21.04.2005 is referable to Section 331 and 332 of Indian Succession Act, 1925. Shri Chitale submitted that document in question is not a Gift Deed. Shri Chitale submits that the penalty imposed by the Collector of Stamps was wholly illegal. There was no dishonest conduct on the part of the appellant, Deed of Assent was executed bona fide on which there was no deficiency in the stamp duty. Shri Chitale submits that no reason has been given by the Collector of Stamps as to why maximum penalty of ten times was imposed on the appellant while determining the stamp duty. Shri Chitale submits that the Collector of Stamps has not exercised his jurisdiction in reasonable and fair manner and imposition of ten times penalty on the appellant deserves to be set aside. 10. Shri Tushar Mehta, learned Solicitor General refuting the submission of counsel for the appellant contends that nature of document having been found to be gift the Collector has rightly determined the deficiency in the stamp duty and imposed ten times penalty. Shri Mehta submits that there was clear intention of the appellant to evade the payment of stamp duty which clearly called for imposition of ten times penalty. Shri Mehta referred to the order of Board of Revenue and submits that Board of Revenue has also upheld imposition of ten times penalty by holding that the applicant has executed Deed of Assent suppressing the facts intentionally due to which there has been loss of stamp duty. This can neither be termed as wrong nor illegal. 11. We have considered the submissions of the parties and perused the records. 12. Only question to be determined in these appeals is as to whether the imposition of ten times penalty by the Collector of Stamps under Section 40 of the Indian Stamp Act, 1899 was validly imposed or not. 13. The Collector of Stamps vide its order dated 22.09.2008 determined the nature of document dated 21.04.2005 as Gift Deed. The Collector of Stamps in his order also proceeded to determine the market value of property, Lantern Hotel situate at Yashwant Niwas Road and Jahaj Mahal situate in Ravindra Nath Tagore Marg, on the market value of both afove properties stamp duty payable was determined as Rs.1,28,09,900/-, stamp duty of Rs.200/- only having been paid on the document deficit duty was determined as Rs.1,28,09,700/-. The Collector of Stamps by the same order also imposed ten times penalty of Rs.12,80,97,000/-. 14. Before we proceed to consider the respective submissions, it is useful to extract the order of the Collector of Stamps which contains the discussion regarding imposition of penalty, which is as follows: \u201c\u2026\u2026In the above background, the deed in question is classified in the category of a gift deed. The total market value of the property in question in the position of year 2005-06 under the document is fixed at market value Rs.12,80,99,000/-, on which total stamp duty of Rs.1,28,09,900/- is payable. Only Rs.200/- stamp duty has been paid on the document. Thus, remaining stamp duty Rs.1,28,09,700/- and, since the party has not mentioned the actual nature of the document with an intention to escape the duty, therefore, under Section 40 of the Indian Stamp Act, 1899, ten times penalty Rs.12,80,97,000/- is imposed. Thus, total Rs.14,09,06,700/- shall be deposited in the treasure within 30 days.\u201d 15. Section 40 of Indian Stamp Act, 1899 provides for Collectors power to stamp instruments impounded. Section 40(1) which is relevant for the present case which is as follows: \u201c40. Collectors power to stamp instruments impounded. \u2014 (1) When the Collector impounds any instrument under section 33, or receives any instrument sent to him under section 38, sub-section (2), not being an instrument chargeable with a duty not exceeding ten naye paise only or a bill of exchange or promissory note, he shall adopt the following procedure: \u2014 (a) if he is of opinion that such instrument is duly stampeded or is not chargeable with duty, he shall certify by endorsement thereon that it is duly stamped, or that it is not so chargeable, as the case may be; b) if he is of opinion that such instrument is chargeable with duty and is not duly stamped, he shall require the payment of the proper duty or the amount required to make up the same, together with a penalty of five rupees; or, if he thinks fit, an amount not exceeding ten times the amount of the proper duty or of the deficient portion thereof, whether such amount exceeds or falls short of five rupees: Provided that, when such instrument has been impounded only because it has been written in contravention of section 11 13 or section 14, the Collector may, if he thinks fit, remit the whole penalty prescribed by this section.\u201d 16. According to Section 40(1)(b) if the Collector is of opinion that such instrument is chargeable with duty and is not duly stamped, he shall require the payment of the of the proper duty or the amount required to make up the same, together with a penalty of the five rupees; or, if he thinks fit, an amount not exceeding ten times the amount of the proper duty or of the deficient portion thereof. The statutory scheme of Section 40(1)(b) as noticed above indicates that when the Collector is satisfied that instrument is not duly stamped, he shall require the payment of proper duty together with a penalty of the five rupees. The relevant part of Section 40(1)(b) which falls for consideration in these appeals is: \u201cor, if he thinks fit, an amount not exceeding ten times the amount of the proper duty or deficient portion thereof.\u201d 17. The amount of penalty thus can be an amount not exceeding ten times. The expression \u201can amount not exceeding ten times\u201d is preceded by expression \u201cif he thinks fit\u201d. The statutory scheme, thus, vest the discretion to the Collector to impose the penalty amount not exceeding ten times. Whenever statute transfers discretion to an authority the discretion is to be exercised in furtherance of objects of the enactment. The discretion is to be exercised not on whims or fancies rather the discretion is to be exercised on rational basis in a fair manner. The amount of penalty not exceeding ten times is not an amount to be imposed as a matter of force. Neither imposition of penalty of ten times under Section 40(1) (b) is automatic nor can be mechanically imposed. The concept of imposition of penalty of ten times of a sum equal to ten times of the proper duty or deficiency thereof has occurred in other provisions of the Act as well. We may refer to Section 35(a) in this context is as follows: \u201c35. Instruments not duly stamped inadmissible in evidence, etc. \u2014 No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped : Provided that\u2014 (a)any such instrument shall be admitted in evidence on payment of the duty with which the same is chargeable, or, in the case of any instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion; (b)\u2026 \u2026 \u2026 \u2026\u201d 18. It is relevant to notice that Section 35 contemplates that when ten times the amount of the proper duty of or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion is required to be deposited. Under Section 39 Collector is empowered to refund penalty. As noticed above under Section 35(a) there is no option except to pay sum equal to ten times of such duty or deficient portion but Section 39 empowers the Collector to refund any portion of the penalty in excess of five rupees which is expressed in following words: \u201cif he thinks fit refund any portion of the penalty in excess of five rupees which has been paid in respect of such instrument.\u201d 19. The legislative intent which is clear from reading of Sections 33,35,38 and 39 indicates that with respect to the instrument not duly stamped, ten times penalty is not always retained and power can be exercised under Section 39 to reduce penalty in regard to that there is a statutory discretion in Collector to refund penalty. 20. Section 39(1)(b) of the Indian Stamp Act, 1899 came for consideration before this Court in Gangtappa and another vs. Fakkirappa, 2019(3) SCC 788 (of which one of us Ashok Bhushan, J. was a member). This Court noticed the legislative scheme and held that the legislature has never contemplated that in all cases penalty to the extent of ten times should be ultimately realized. In paragraph 16 following has been laid down by this Court: \u201c16. Deputy Commissioner under Section 38 is empowered to refund any portion of the penalty in excess of five rupees which has been paid in respect of such instrument. Section 38 Sub-section (1) again uses the expression \"if he thinks fit\". Thus, in cases where penalty of 10 times has been imposed, Deputy Commissioner has discretion to direct the refund of the penalty in facts of a particular case. The power to refund the penalty Under Section 38 clearly indicates that legislature have never contemplated that in all cases penalty to the extent of 10 times should be ultimately realised. Although the procedural part which provides for impounding and realisation of duty and penalty does not give any discretion Under Section 33 for imposing any lesser penalty than 10 times, however, when provision of Section 38 is read, the discretion given to Deputy Commissioner to refund the penalty is akin to exercise of the jurisdiction Under Section 39 where while determining the penalty he can impose the penalty lesser than 10 times.\u201d 20. The expression \u201cif he thinks fit\u201d also occurs in Section 40 sub-clause (b). The same legislative scheme as occurring in Section 39 is also discernible in Section 40(b), there is no legislative intentment that in all cases penalty to the extent of ten times the amount of proper stamp duty or deficient portion should be realised. The discretion given to Collector by use of expression \u201cif he thinks fit\u201d gives ample latitude to Collector to apply his mind on the relevant factors to determine the extent of penalty to be imposed for a case where instrument is not duly stamped. Unavoidable circumstances including the conduct of the party, his intent are the relevant factors to come to a decision. 21. The purpose of penalty generally is a deterrence and not retribution. When a discretion is given to a public authority, such public authority should exercise such discretion reasonably and not in oppressive manner. The responsibility to exercise the discretion in reasonable manner lies more in cases where discretion vested by the statute is unfettered. Imposition of the extreme penalty i.e. ten times of the duty or deficient portion thereof cannot be based on the mere factum of evasion of duty. The reason such as fraud or deceit in order to deprive the Revenue or undue enrichment are relevant factors to arrive at a decision as to what should be the extent of penalty under Section 40(1)(b). 22. We may refer to judgment of this Court in Peteti Subba Rao vs. Anumala S. Narendra, 2002 (10) SCC 427. This Court had occasion to consider in the above case provisions of Section 40 of the Indian Stamp Act, 1899. Referring to Section 40 this Court made following observation in paragraph 6: \u201c6\u2026\u2026\u2026The Collector has the power to require the person concerned to pay the proper duty together with a penalty amount which the Collector has to fix in consideration of all aspects involved. The restriction imposed on the Collector in imposing the penalty amount is that under no circumstances the penalty amount shall go beyond ten times the duty or the deficient portion thereof. That is the farthest limit which meant only in very extreme situations the penalty need be imposed up to that limit. It is unnecessary for us to say that the Collector is not required by law to impose the maximum rate of penalty as a matter of course whenever an impounded document is sent to him. He has to take into account various aspects including the financial position of the person concerned.\u201d 23. This Court in the above case categorically held that it is only in the very extreme situation that penalty needs to be imposed to the extent of ten times. 24. The Collector by imposing ten times penalty in his order has given the reason for imposition as \u201cthe party has not mentioned the actual nature of the document with the intention to escape the duty\u201d. When the Collector found intention to escape the duty, it was the case of imposition of penalty but whether the reason given by the Collector is sufficient for imposition of extreme penalty of ten times is the question which needs to be further considered. The High Court while considering the question of imposition of penalty of ten times has also given almost same reason in following words: \u201c\u2026\u2026\u2026But in the present case the complete title has been transferred by Trust to Jogesh Dhanda and Ishan Dhanda in the name of Deed of Assent. Therefore, there was intention to evade the heavy stamp duty on such transaction. Therefore, the Collector of Stamp has rightly imposed 10 times penalty which is maximum under the Act. In view of the above, I do not find any merit in this writ petition. The same is hereby dismissed.\u201d 25. No other reasons have been given either by the Collector or by the High Court justifying the imposition of maximum penalty of ten times. It is not the case of Collector that the conduct of the appellant was dishonest or contumacious. The High Court in its judgment has noticed that although the resolution was passed on 06.04.2005 to execute the Deed of Transfer by Trustees in favour of Jogesh Dhanda and Ishan Dhanda, but later on they deliberately executed the deed in the name of Deed of Assent on a stamp paper of Rs.200/-. For the reason given by the Collector as well as by the High Court that there was intention to evade the stamp duty in describing the document as Deed of Assent the imposition of the penalty was called for but in the facts and circumstances and the reasons which have been given by the Collector of Stamps as noticed above we are satisfied that this was not a case of imposition of extreme penalty of ten times of deficiency of stamp duty. Taking into consideration all facts and circumstances of the case, we are of view that ends of justice will be served in reducing the penalty imposed to the extent of the half i.e. five times of deficiency in the stamp duty. 26. In result the appeals are allowed the order of the Collector of Stamps dated 22.09.2008 is modified to the extent that penalty imposed of ten times of Rs.12,80,97,000/- is modified into five times penalty i.e. Rs.6,40,48,500/-. The appeals are partly allowed to the above extent. .....................J. ( ASHOK BHUSHAN ) ......................J. ( R. SUBHASH REDDY ) ......................J. ( M.R. SHAH ) NEW DELHI, SEPTEMBER 17, 2020.",
        "1714434": "CASE NO.: Special Leave Petition (civil) 6779 of 2000 PETITIONER: VICCO LABORATORIES & ANR. Vs. RESPONDENT: ART COMMERCIA ADVERTISING PVT.LTD. & ORS. DATE OF JUDGMENT: 13/08/2001 BENCH: S.R.Babu, Y.K.Sabharwal JUDGMENT: RAJENDRA BABU, J. : A suit was filed in S.C.Suit No.493 of 1986 in the Bombay City Civil Court, Bombay by Vicco Laboratories, appellant herein, manufacturers of ayurvedic pharmaceutical products against defendant Nos. 1 to 4, respondents herein, for a declaration that the title and format of the suit serial \"Yeh Jo Hai Zindagi\" exclusively belonged to them and respondents Nos. 1 to 4 have no right thereto and for permanent injunction restraining the said respondents from making use of the title or episodes belonging to the petitioners or any episodes hereafter made. A number of averments germane to this case as set out in the plaint are set out hereunder: The petitioners carried on business as manufacturers of ayurvedic pharmaceuticals products, which were sold under the brand name of \"Vicco\" and have acquired substantial reputation in the market. The 1st respondent are an advertising agency and have been the advertising agents in respect of the products manufactured by the petitioners as aforesaid for number of years. The 2nd respondent is a Director and/or partner of the 1st respondent and has mainly dealt with the petitioners on behalf of the 1st respondent. Respondents Nos. 3 & 4 are proprietary concerns of respondent No.2. The 5th respondent is the Union of India and has been joined as the authority concerning Television in India in the name and style of Doordarshan, which is a television media. The petitioners had employed the respondent Nos.1 to 4 as their advertising agents through the petitioners' sister concern \"M/s Modern Advertising Agency\" and \"Uta Advertising Agency\" and were dealing with the respondent No.1 mainly through the petitioners Managing Director, G.K.Pendharkar. In 1984, Doordarshan in order to popularize sponsored serial, undertook the production of a serial by the name \"HUMLOG\". The petitioners are also pioneers in making use of Doordarshan for advertising their products through the agency of the 1st respondent, approached the 1st respondent to act as their agents for the purpose of producing a serial which would be shown as petitioners' sponsored programme. The petitioners agreed to pay the entire costs of the said production to the said advertising agency and requested it to look into the matter, employed various persons on behalf of the petitioners and prepare a suitable serial for them. Pursuant to the said arrangement, the respondent Nos. 1 to 4 as the agents of the petitioners prepared at the costs and expenses of the petitioners, a serial entitled \"Yeh Jo Hai Zindagi\". The petitioners claimed that as a result of the employment of the respondent Nos. 1 to 4 and the finances paid by them the petitioners are the owners of the said serial \"Yeh Jo Hai Zindagi\" and the title thereof. The first and second respondents under the arrangement produced about 60 episodes and the petitioners have spent a crore of rupees for the products and telecast of the said episodes and have also spent large sums of money on advertising to popularize the said programme. \"Yeh Jo Hai Zindagi\" had gained popularity and had become one of the most exclusive and popular serial. The petitioners claimed that the exclusive right to use the title thereof belonged to them and the 2nd episode of \"Yeh Jo Hai Zindagi\" was telecast without the name of the petitioners being mentioned as sponsors nor was their advertisement shown. This was due to the negligence of the respondent Nos.1 to 4. But the respondents recovered the cost of production from the petitioners. Further the said respondents had been recovering the cost of production well in advance of the serial episodes being actually produced. The petitioners claimed that they were the real producers and owners of the said serial \"Yeh Jo Hai Zindagi\" and the petitioners to the knowledge of the respondents have entered into an agreement assigning the video rights in the said serial to one M/s Esquire Distributing and Servicing Pvt. Ltd. on 1.1.1985. The petitioners though not required to do so, made an ex gratia payment to respondent Nos. 1 to 4 of a portion of the royalty received by them from the said M/s Esquire Distributing and Servicing Pvt. Ltd.. 1st and 2nd respondents had by their letter dated 14.12.1984 confirmed that the petitioners have all T.V. and video rights of the sponsored programme in Hindi \"Yeh Jo Hai Zindagi\" and vest with the petitioners. Though original agreement was to have 27 episodes but having regard to the popularity of the programme the petitioners decided to increase the said serial to 52 episodes and by a letter dated 22.4.1985 the petitioners informed respondent Nos. 1 and 2 that in the title of the 27th and 28th episodes it has been stated that it is presented by \"Oberoi Films\". Some time in May 1985, the 1st respondent proposed to the petitioners that some other products should be tied up with the serial \"Yeh Jo Hai Zindagi\". However, the petitioners were not interested in the same as they wanted the serial to project their products only exclusively and did not agree to any other products being tied up with the said serial. The respondents on 27.12.1985 alleged that they were losing Rs.50,000/- to Rs.75,000/- per episode and indicated that they wanted to get a new sponsor. By their letter dated 2.1.1986 the petitioners informed the 1st and 2nd respondents that it was not possible to increase the costs of production for the episodes and that in the circumstances, the production of the serial may stop. It was also pointed out that the name \"Yeh Jo Hai Zindagi\" is associated with the \"Vicco Laboratories\" and that if they wanted to obtain another sponsor they could produce a new serial under a different name. The petitioners apprehended that the respondent Nos. 1 to 3 intended to produce further episodes under the title \"Yeh Jo Hai Zindagi\" making use of the same format as the earlier serial for and on behalf of the third party. The petitioners reserved their right to sue for damages in terms of Order II, Rule 2 CPC. The respondent Nos. 1 to 4 in their written statement contested the suit. Apart from raising the question of valuation of the suit and the pecuniary jurisdiction of the court to try the same they also raised question that the petitioners are not the owners of the copyright in the said serial within the meaning of Section 17 of the Copyright Act, 1957 and the copyright in respect of the said serial belongs and vests with the respondent Nos. 1 to 4. Therefore, it was submitted that the suit lacked cause of action. While traversing the case on merit they contended that it was all along agreed between the petitioners and respondents that the copyright in the said serial would rest exclusively in the respondents and not in the petitioners. Thus the respondents' name was shown in the title of the said serial as the producer thereof right from the beginning of the said serial but the petitioners did not protest against the same. Consistently with the said intention further, the master cassette of the said serial at all relevant times remained exclusively with the respondents and not with the petitioners and the petitioners paid to the respondents 50% of the royalty received from M/s Esquire Distributing and Servicing Pvt. Ltd. under the agreement dated 1.1.1985, 4.3.1985 and 16.9.1985. The advertisements issued by the petitioners themselves in various newspapers to give wide publicity to the said serial would indicate that the serial mentioned these respondents' are the owners of the copyright in respect of the said serial and the petitioners claim in that behalf is devoid of any substance. The respondents also contended that even assuming but without admitting that even if the petitioners are the owners of the copyright in respect of the said serial as on the date of the suit they ceased to be such owners in view of the fact that these rights vested in them before the institution of the suit and they have acquiesced in the exercise of the said right by these respondents by their conduct as referred to earlier. It was also contended that the 2nd respondent is an artist and a film maker and has been in the field of film making for the past 20 years. In the course of his business the 2nd respondent has developed contacts and connections with important and renowned personalities, artists, technicians etc. in the film industry. In the year 1967, the 2nd respondent's wife Mrs. Sunanda S. Oberoi started the proprietary business of advertising agency in the name and style of Art Commercial and the 2nd respondent used to work in various capacities for the said firm. In the year 1983, the said proprietary firm was converted into a private limited company which is the 1st respondent in the present suit and the 2nd respondent constituted respondent Nos. 3 and 4 as his proprietary firm. About 18 years ago before filing of the suit, the respondents came into contact with the petitioners initially as clients in connection with the job of advertisement of their products on All India Radio, theatre and films and later, on television. These ad-films and jingles fetched handsome returns for the petitioners and boosted their sales beyond their own expectations. In course of time, the 2nd respondent and partners of the petitioners especially G.K.Pendharkar came very close to each other and developed very intimate relations. Either at the end of 1983 or early part of 1984, the 5th respondent through the said Doorsarshan decided to introduce the production of films or serials especially for exhibitions on TV instead of exhibiting/telecasting films produced by the professional film producers on payment of exorbitant royalty to them, partly as an economy measure and partly to provide avenues to and exposure new talents. The 5th respondent thereafter decided to entertain/welcome and/or encourage the proposals from the private producers to produce such serials or films at their own cost and responsibility and under the said scheme the advertisers desirous of linking up their advertisements with such films or serials were required to negotiate and settle directly with the producers of such films and/or serials, the royalty or consideration payable to such producers for linking up their advertisements and commercials with their film/serial and under the said scheme further, such advertisements were offered handsome concessions in the rates of advertisements for display of their ads on TV. As against the regular rates/charge of Rs.3,24,000/- for display of advertisements on TV of such advertisers for 120 seconds per telecast, the relevant time, at the rate of Rs.35,000/- only for 120 seconds in addition to the royalty or consideration payable to the producers of such films or serials which invariably was far less than the difference between the usual rates and concession rates of advertisements. The 2nd respondent undertook the preliminary project work on his own without loss of any time. The 2nd respondent made extensive study and research and prepared a format of the proposed serial. The said team of the 2nd respondent responded to his appeal and took great pains and put in hard work in the said project and presented to him an exclusive and ingenious format of the proposed serial. The 2nd respondent then approached the 5th respondent through Doordarshan with his proposal to produce the said serial then proposed to be entitled \"Mussibat Hai\". After a number of meetings between the 2nd respondent and the concerned officers and the authorities of the respondents at Delhi in connection with the said proposal approved a pilot [i.e. the first episode as sample] on 19.9.1984 to produce a TV serial comprising 52 episodes subject of course to the 5th respondent discretion to discontinue the same if the same proved a flop before the expiry of the stipulated period. The entire cost of the spade work and the cost of the title song was borne exclusively by the respondents and nothing was contributed by the petitioners in this regard. The 5th respondent registered the respondent Nos. 1 and 2 as the producers of the said serial. After finalizing the proposal by the TV authorities, respondent No.2 asked the petitioners as to whether they were interested in the linking up their ads with the said serial. Petitioners agreed to link up their ads with 26 episodes of the said serial. The petitioners agreed to pay fixed amount to these respondents per episode for linking up their commercials with the said serial and not on the basis of the actual cost of production of each episode so that if the cost of production exceeded the said fixed amount the respondents had to bear the same. In these circumstances, the respondents contended that by entering into the said agreement of sponsorship, neither the petitioners nor the respondents created nor did they ever intend to create any relationship of employer and employee and/or master and servant or principal and agent between the petitioners on the one hand and the respondents No.1 to 4 on the other. Nor did the parties intend that the respondents should produce the said serial for the petitioners or at the instance of the petitioners and the respondents intended to embark on the production of the said serial on their own. The petitioners by their letter dated 2.1.1987 turned down the respondents' demand and informed the respondents that they had no objection if the respondents went ahead with the production of the said serial and merely requested the respondents that the title of the said serial \"Yeh Jo Hai Zindagi\" may not be used by the respondents. In the meanwhile, the respondents contended that M/s Brook Bond Ltd. who wanted to link up their commercial with 13 episodes and agreed to pay and paid the ruling market price. On these grounds, the respondents contended that the suit of the petitioners is misconceived, malicious and baseless and is liable to be dismissed. The respondents contended that on no occasion the petitioners acted as a producer and even the contract was signed by the petitioners as an Advertiser and by the respondent No. 1 as an approved agent. The respondents strongly contended that the serial \"Hum Log\" was produced by the petitioners in collaboration with M/s Concept Advertisers. The trial court raised as many as 12 issues and they are as follows :- 1. \"Is it proved that this Court has no pecuniary jurisdiction to entertain and try this suit? 2. Do the plaintiffs prove that the T.V.serial entitled \"Yeh Jo Hai Zindagi\" was produced by the defendant Nos. 1 to 4 as agents and (the said serial made by defendant Nos. 1 to 4) in the course of their employment with the plaintiffs as alleged? 3. Do the plaintiffs prove that the entire serial rights including the excluding the exclusive right to use the title thereof, belong to the plaintiffs as alleged? 4. Are defendant Nos. 1 to 4 entitled to deny the ownership of the plaintiffs of the Film \"Yeh Jo Hai Zindagi\" in view of Exhibits a, B and E (colly) to the plaint? 5. Do the defendants prove that the plaintiffs are not the owners of the copyright of the TV serial/film, viz., \"Yeh Jo Hai Zindagi\" , within the meaning of Section 17 of the Copyright Act? 6. Do the defendant Nos. 1 to 4 prove that it was intended between the parties that copyrights in respect of the said film should vest exclusively with the defendants or that the right of ownership was waived by the plaintiffs? 7. Does the suit suffer from non-joinder of necessary parties? 8. Is the suit not maintainable against defendant No. 5 for failure to give notice u/s 80 of CPC? 9. Are the plaintiffs entitled to the declaration sought? 10. Are the plaintiffs entitled to permanent injuction as prayed for? 11. To what relief, if any, are the plaintiffs entitled? 12. What order?\" The trial court found that the petitioners have not been able to prove that the TV serial \"Yeh Jo Hai Zindagi\" was produced by defendants Nos. 1 to 4 as agents in the course of their employment as the agent of the petitioners as contended in the suit. The petitioners were also not able to prove that the entire serial rights including the exclusive right to use the title thereof belonged to the petitioners as alleged. It was also held that the respondents Nos. 1 to 4 are entitled to deny the ownership of the petitioners of the film \"Yeh Jo Hai Zindagi in view of Exhibits A, B and E produced in the case. It was also held that the respondents proved that the petitioners are not the owners of the copy right of the TV serial/film viz., \"Yeh Jo Hai Zindagi\" within the meaning of Section 17 of the Copy Right Act and it was intended between the parties that copy rights in respect of the said film should vest exclusively with the respondents or that the rights of ownership was waived by the petitioners. After examining the oral and documentary evidence on record it is disclosed that prior to letter sent on 11.7.1984 the petitioners were acquainted even with the format of the suit serial, they did not have any connection with the suit serial till that date and relied upon the wording used therein to the effect that \"you and Mr. G.K. Pendharkar are requested to join Mr. Oberoi and his creative team when the format of the proposed half and hour sponsored programme shall be presented to you.\" That was the first occasion when the format was presented to the petitioners. It was also on record that the Shri G.K. Pendharkar of the petitioners and respondent No. 2 had long standing relations with each other and they had already done a lot of advertising works for the petitioners before the production of the suit serial. Exhibit G-1 (which is Exhibit 27-A in the petitioners' compilation) is a letter written by Shri S.P. Agrawal, Controller of Programmes of Doordarshan to respondent No. 1, M/s Art Commercia with reference to the format for the proposed serial of half and hour duration tentatively titled \"Musibat Hai\" serial sent to them on 13.7.1984. Since the letter was addressed to M/s Art Commercia in which the proposal was accepted for production of the serial and the first episode was to be sent for preview and approval which would be given only after seeing the recording of the first episode. That letter had been addressed to respondent No. 1, M/s Art Commercia. The trial court felt that it was addressed not to the petitioners but to the respondents alone. The trial court also relied on Exhibit C-1 which indicated that the respondents were submitting a format for the serial which was to be registered on behalf of the client M/s Vicco Laboratories. The learned Judge of the trial court took the view that this letter nowhere mentioned that the respondents wanted to register their format on behalf of their producers which is consistent with the modern norms of advertising. The trial court ultimately came to the conclusion that the spade work on the production of the suit serial had already started before 11.7.1984 and on that day for the first time film was presented to the petitioners. It was, therefore, found that there was no copy right attached to any idea, but copy right is attached to the work and what is important is that not only the idea of producing the suit serial on TV came to the mind of respondent No. 2 but he had already started working on it in advance and forwarded it to Doordarshan for its approval. The trial court, after examining Exhibits C-1, E-1, F-1 P-1 found that the proposal was for 52 episodes and was accepted by the Doordarshan, while the case put forth on behalf of the appellants is that the original agreement was to have 27 episodes and having regard to the popularity of the programme the petitioners decided to increase the said serial to 52 episodes. The evidence was found to be inconsistent with the theory put forth by the petitioners that they are producers of the suit serial and, if it were to hold otherwise, the agreement or arrangement with the respondents was only for 26 episodes, whereas the sponsorship was for 52 episodes. The trial court examined in detail the letter dated 19.7.1984 (Exhibit F-1) written by Shri G.K. Pendharkar of the petitioners and concluded that averments made in the plaint stated that the original agreement was to have 27 episodes but having regard to the popularity of the serial programme the petitioners decided to increase the said serial to 52 episodes. In one of the contracts (Exhibit H-1) the wording used is as under :- \"Sponsorship of programme of 25 mts duration produced by sponsor entitled \"Yeh Jo Hai Zindagi\" including 2 mts free commercial time\". Relying upon this letter emphasis was laid on the words \"produced by sponsors\" . Whether two capacities \"sponsor\" and \"producer\" can co- exist in one and the same person or not has been examined and the trial court noted that the wording had been borrowed from the Tariff Card and Tariff Card also indicated what are the categories of the advertisers and rates thereof. It is held that words \"produced by sponsors\" would not mean that the sponsors themselves are the producers of the said programmes, as is clear from the Tariff Card. The trial court proceeded thereafter to examine the payments made in regard to production of the serial. Thus it was found that the first 26 episodes the amount per episode paid by the petitioners was Rs. 1,20,000/- and each bill contained the expression \"service charges\" which was stated by the appellants that the respondents acted as agents of the petitioners for production of suit serial. On proper construction of the bills the trial court rejected the contention that these bills and payments as showing that they had borne the costs of production of the suit serial and, therefore, they are the producers. Inasmuch as the respondents could not claim any amount at random, details regarding expenditure were included in the bills and therefore it is the sponsor's price for sponsoring the suit serial. Strong reliance was placed upon certain circumstances, namely, that the format had been approved by the petitioners only on 11.7.1984 and PW-1 admitted that in view of the bill the entry claiming deduction made by the petitioners in their accounts in the financial year ending on 30.3.1984; that the amount was not to be paid for all 26 episodes or even thereafter in lump sum and the bill for 26 episodes enabled petitioners to claim deduction for the entire amount without actual payment in financial year 1983-84; that the entry made for the financial year 1983-84 was beneficial to the petitioners that there was no ceiling on advertising expenditure and it was introduced from 1.4.1984 onwards, the plaintiff did not produce the account books to show if the deduction in respect of the entire amount was claimed or not though they were repeatedly called upon to produce them. The trial court was conscious enough not to enter into the controversy whether during the particular account year ending on 31.3.1984 the advertising expenditure was fully exempted from tax or that there was disallowance of 20 per cent on that point and the decision regarding income tax deductions is not necessary as there is enough other material to show that the said bill was ante-date. The change in the title from 55th episode \"for Vicco Laboratories\" was introduced. Their contention was that there was a protest from the petitioners and as a result thereof this change took place. The 55th episode was telecast sometime at the end of November or beginning of December 1985 and thus there was a time gap of 7/8 months between the protest and the telecast of the 55th episode. Therefore, it cannot be said that there is any communication between the same. The trial court also noticed that in respect of both the advertisements and also in respect of suit serial the petitioners paid to the respondent Nos. 5 and 6 amount which was to be the maximum amount. Thus the profits or loss was of the respondents and there is element of liability to render account was missing and thus there was no question of respondents being the agents of the petitioners within the meaning of Section 182 of the Indian Contract Act. The suit serial was produced by the respondents as agents of the petitioners was false. The facts emerging in the case indicate that the petitioners had joined the production of the suit serial after some concrete beginning had been made like recording of the title song, the conceiving of the title and format of the suit serial, etc. The trial court summed up the position that the two capacities \"sponsor\" and \"producer\" cannot co-exist in one and the same person. If the documents are interpreted that the petitioners are the sponsors as well as the producers it would lead to absurd results. Thus the trial court proceeded to uphold the contentions raised on behalf of the respondents to dismiss the suit. On appeal, the High Court re-examined the matter and on examination of the pleadings, the contentions, put forth before the court, the evidence on record and the findings recorded by the trial court, concluded that the findings recorded by the trial court are proper. In doing so, the High Court noticed that the admitted position in the pleadings and the oral evidence is that the petitioners agreed to sponsor only 26 episodes whereas the respondents had agreed to produce 52 episodes and had made firm commitment to Doordarshan to that effect and this circumstance militates against the respondents having undertaken the production at the behest or at the request of the petitioners. The High Court observed that the petitioners had no knowledge of the Doordarshan scheme regarding the sponsored programme and linking of 2 minutes advertisement and agreed with the findings of the trial court that it is improbable for the respondents to have agreed to reduce its income in the form of commission and undertake the responsible job of production of the serial. It was stated that certain bills had been given to the petitioners to suit their convenience in tax matters and there was no such bill submitted to the petitioners by the respondents when the petitioner had agreed to extend the sponsorship from episodes Nos. 27 to 52 and noticed the nature of the system of accounting maintained by them and held that the petitioners had got deductions in respect of the entire amount of the bill in the year which ended on March 31, 1984. The High Court also noticed the circumstance of respondent No.2's name appearing as 'producer' in the titles of the suit serial and the petitioners did not do anything by way of protest or other objection or take steps to withhold payment of the respondents which in the normal course would have been done and, therefore, the explanation now sought to be offered by the petitioners in the form of a written protest was devoid of any substance. The explanation given by the petitioners that they were busy in the shootings did not carry much weight with the High Court. The High Court also examined the scope of Section 17 of the Copyright Act and the ingredients thereof not having been established the High Court held that no claim could be based on the same and thus agreed with the findings recorded by the trial court and dismissed the appeal. In this special leave petition under Article 136 of the Constitution, the contentions raised before the High Court are reiterated particularly as to the effect of Section 17 of the Copyright Act and whether the correspondence on record would not indicate that they were entitled to ownership and copyright in respect of the TV programme 'Yeh Jo Hai Zindagi'. The learned counsel for the petitioners strongly relied upon the following documents: 1. The cost estimate. 2. The bills of cost of production. 3. Letters dated 14.12.1984 and 15.11.1985. 4. Contracts with Doordarshan. 5. Contractd with Esquire Distributing & Servicing Pvt. Ltd. We have carefully considered the contentions urged on behalf of the petitioners. We are not satisfied that the petitioners have made out a case for consideration by this Court. The matter rests purely upon the appreciation of evidence on record and does not give rise to any question of such importance as to be decided by this Court under Article 136 of the Constitution. It is clear from the findings recorded by the trial court and the appellate court: 1. that the respondents have not undertaken the production of the said serial at the instance of the petitioners. G.K.Pendharkar, the Managing Director of petitioner No.1 was asked to come to view the format of the programme and the petitioners were not even acquainted with the format of the serial while the respondents had taken concrete steps in this regard prior to the letter dated 11.7.1984. 2. That the petitioners had agreed to sponsor only 26 episodes whereas the respondents had agreed to produce 52 episodes and had given a firm commitment to that effect to Doordarshan as is clear from the letter dated 12.7.1984 sent by the respondents to Doordarshan. The trial court thus rightly noted that there was no agency between the parties. 3. That the titles of each episode indicated that respondent No.2 is the producer of the said serial and the petitioners are only the sponsors. As late as on 22.4.1985, the petitioners communicated their displeasure on this display in the episodes as to the titles. However, the titles continued to show Mr. S.S.Oberoi as the producer of the serial and the petitioners did not withhold payments. 4. That the courts below have refuted the claim of the petitioners that the bill dated 19.3.1984 establishes the fact that the production work had been started by the respondents at the behest of the petitioners. It has been proved that the said bill was ante-dated and raised by the respondents in July, 1984 ostensibly for the purpose of benefiting the petitioners for their obtaining tax concessions. 5. That the Doordarshan, which have been impleaded as a party, in their written statement stated that they recognize the respondents as producers of the said serial and recognize the petitioners as sponsors only. 6. That the evidence of Mr. S.S.Gill, who gave evidence on behalf of the Information & Broadcasting Ministry that he was not acquainted with Mr. Pendharkar and that Doordarshan had no direct connection with the petitioners but only with the respondents as producers or the Director stood un-impeached. In his further evidence, Mr. Gill stated that some time in the month of May/June, 1984 he had met Kundan Shah and requested to make a comedy serial for Doordarshan which clearly indicated that it is only the respondents who were dealing with Doordarshan. 7. That the video rights were assigned to Esquire Distributing & Servicing Pvt. Ltd. by the respondents pursuant to letters dated 14.12.1984 and 15.11.1985 and had received royalty for the video rights and the original U-matic cassettes were returned to them by Esquire Distributing & Servicing Pvt. Ltd. as their property. 8. That there was no transfer of rights in favour of the petitioners by the respondents in the aforesaid letters and no consideration whatsoever was paid to the respondents for issuing the said letters which have no legal consequences and it was after the petitioners received the letter dated 19.10.1985 from Esquire Distributing & Servicing Pvt. Ltd. that the respondents were asked by the petitioners to issue another letter in this regard. Thus the pleadings and the evidence on record clearly indicated that the respondents were not the agents of the petitioners for the purpose of producing the said serial. The aggregate amount of Rs.76.50 lakhs which was paid to the respondents for 60 episodes is not the amount for cost of production but the fixed price for sponsoring the said serial in order to link up their advertisement with the serial and avail substantial benefit of concessional rate under the scheme envisaged by Doordarshan. The respondents were not liable to render accounts to the petitioners who paid them a fixed sum for sponsoring the programme. If the expenses were less, the petitioners did not ask for a refund and the profit or loss was entirely of the respondents. It is clear that the bills that have been raised were only to accommodate the petitioners from the circumstances narrated above. However, the learned counsel for the petitioners made elaborate reference to the Income Tax Act, 1961 and the provisions whether such availment of benefit could be taken or not pursuant to the amendment effected to the provisions relating to computation of business income at different stages may not be very germane to the present case. It is probable that the respondents had obliged the petitioners by issuing these bills because the bills cannot be read in isolation but with reference to surrounding circumstances. Therefore, the view taken by the courts below in this regard appears to be correct. So far as the contentions raised on the basis of Section 17 of the Copyright Act is concerned, it is clear that the petitioners were not able to establish that the respondent Nos. 1 to 4 produced the said serial (1) as the agents of the petitioners; (2) in the course of their employment with the petitioners; (3) for valuable consideration paid by the petitioners to them; and (iv) at the instance of the petitioners. When these factors had not been established and the suit is itself not dependent on the interpretation of Section 17 of the Copyright Act, pleadings and issues raised did not attract the same. On appreciation of evidence, the courts below have come to the conclusion that the respondents did not make the said serial for valuable consideration at the instance of the petitioners and in view of the findings of fact, the claim of copyright or ownership in respect of the serial under Section 17(b) and (c) would not arise at all. Thus we find absolutely no merit in this petition. We decline to interfere with the order made by the High Court affirming the decree of the trial court. The petition, therefore, stands dismissed. No costs.",
        "48115323": "IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction Original Side Present :- Hon'ble Justice Amrita Sinha W.P No. 441 of 2018 G.A. No. 2928 of 2018 Abhishek Mukherjee Vs. The Board of Trustees, Kolkata Port Trust & Ors. For the writ petitioner :- Mr. Soumya Mazumder, Adv. Ms. Ashmita Chakraborty, Adv. Ms. Sunita Kar, Adv. For the respondent :- Mr. Probal Kr. Mukherjee, Sr. Adv. Ms. Sujata Mukherjee, Adv. Hearing concluded on :- 04-09-2019 Judgment on :- 01-10-2019 Amrita Sinha, J. The petitioner is an employee of the Kolkata Port Trust. He joined as a Senior Medical Officer on probation for a period of two years vide appointment letter dated 21st June, 2016. The petitioner is guided by the Kolkata Port Trust Employees' (Classification, Control and Appeal) Regulations, 1987 and the Kolkata Port Trust Employees' (Conduct) Regulations, 1987. The duties and functions of the employer that is the Kolkata Port Trust are enumerated in the Major Port Trust Act, 1963 and the Rules and Regulations framed thereunder. By an order dated 13th February, 2018 the petitioner was placed under suspension with immediate effect as a disciplinary proceeding was contemplated against him. The suspension order was valid until further orders. The petitioner was entitled to draw subsistence allowance during the period of suspension, upon application, indicating that he was not employed in any business or vocation for profit/remuneration during the said period. By a confidential letter dated 2nd March, 2018 the Deputy Chairman, Disciplinary and the Appointing Authority of the petitioner sought for explanation from the petitioner as to why his services should not be dispensed with. The petitioner submitted his explanation by a letter dated 8th March, 2018 denying the allegations made in the letter under reference. The disciplinary authority by an order dated 9th May, 2018 intimated the petitioner that the Suspension Review Committee recommended continuation of his suspension for a further period of 90 days with effect from 14th May, 2018. The period of suspension of the petitioner has thereafter been extended from time to time and the said position is continuing till date. The petitioner is aggrieved by issuance of the memo dated 21/25th June, 2018 issued by the Deputy Chairman and Disciplinary Authority intimating the petitioner that an inquiry will be held against him under Regulation 8 of the Kolkata Port Trust Employees' (Classification, Control and Appeal) Regulations. The statement of Article of charge framed against the petitioner, the statement of imputation of misconduct in support of the charge, list of documents, and the list of witnesses were forwarded to the petitioner along with the aforesaid memo. The petitioner was directed to submit a written statement whether he admitted or denied any or all the Article of charges. On receipt of the aforesaid memo of charge the petitioner duly submitted his written statement denying the allegations levelled against him. The Deputy Chairman and the Disciplinary Authority by an order dated 2nd August, 2018 intimated the petitioner that an inquiry officer has been appointed for conducting an inquiry in respect of the charges framed against him. The petitioner has been charged with gross misconduct on the allegation that he indulged in an unethical activity in the ICU of Centenary Hospital on 3rd February, 2018 by issuing order to inject/injecting KCL/insulin to a patient leading to her death immediately, after she was prematurely declared dead by another doctor who was on duty in ICU. The act of injecting the above injection was intentionally done to bring the premature end to the life of the patient. The same amounted to unethical practice by a medical practitioner amounting to gross misconduct and criminal conspiracy. The statement of imputation of misconduct in support of the charges framed against the petitioner mentions that the aforesaid behaviour of the petitioner amounts to gross negligence of duty, criminal conspiracy and lack of devotion to his work and poor conduct, which is in violation of Regulations 3(1) and 3(9) of the Kolkata Port Trust Employees' (Conduct) Regulations, 1987 which is unbecoming of an officer of Kolkata Port Trust. According to the petitioner, the initiation of the disciplinary proceeding against a medical practitioner by his employer on the ground of professional misconduct is not permissible in law and the same is liable to be set aside. It has been submitted that the disciplinary authority is not competent/authorised to inquire into the allegation of professional misconduct. Being a medical practitioner the petitioner is guided by the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002. It has been contended that the charges levelled against the petitioner in the show cause notice as well as the charge sheet are in variance to the statement of imputation of misconduct. In the charge sheet the petitioner has been alleged to have committed unethical activity, unethical practice and criminal conspiracy which is unbecoming of a medical professional whereas in the statement of imputation of misconduct the petitioner has been alleged to commit gross misconduct of duty, lack of devotion and poor conduct and violation of the Regulations 3(1) and 3(9) of the Kolkata Port Trust Employees' (Conduct) Regulations, 1987. According to the petitioner the allegations are of such a nature that it requires in depth inquiry/investigation by competent persons having qualification in the field of medicine. The same cannot be subject to the Kolkata Port Trust Employees' (Conduct) Regulations, 1987. The allegation of criminal conspiracy is liable to be dealt with under the Indian Penal Code, 1860 and the same cannot be adjudicated under the service regulations. The petitioner relies upon the judgment delivered by the Hon'ble Supreme Court in the matter of Surath Chandra Chakravarty vs The State of West Bengal & Ors. reported in AIR 1971 SC 752 on the issue that the grounds on which the disciplinary authority proposes to take action have to be reduced to the form of definite charge or charges which have to be communicated to the person charged together with the statement of allegations on which each charge is based. In the instant case the statement of imputation has brought in and included fresh charges which were not initially mentioned /included in the statement of charge. The petitioner relies upon an unreported judgment dated 12th September, 2018 passed by a learned single Judge of this court in WP 24993 (W) of 2017 in the matter of Anjan Bhattacharya vs Registrar General, High Court, Kolkata & Ors. on the issue that the disciplinary proceeding initiated by the employer to inquire into the allegations was not amenable to inquiry in the disciplinary proceeding. It has been submitted that as there is a specified Act according to which the professional conduct of the doctors are regulated, accordingly, any steps taken in furtherance of the disciplinary proceeding is bad in law and liable to be set aside. The petitioner refers to the judgment delivered by the Hon'ble Supreme Court in the matter of Union of India vs H. C. Goyel reported in AIR 1964 SC 364 on the proposition that the inquiring authority merely acts as a delegatee of the disciplinary authority while the ultimate decision to arrive at a finding of guilt is always vested in the disciplinary authority. It has been submitted that it is not necessary that the disciplinary authority will accept the findings of the inquiry officer. The disciplinary authority has every right to disagree with the findings of the inquiry officer and may come up with a different finding. In the instant case, as the disciplinary authority does not have the expertise to deal with the charges levelled against the petitioner, it will invariably rely upon the report of the inquiry officer, who is a medical practitioner, and the petitioner will lose one forum and opportunity to persuade and convince the disciplinary authority to disagree with the findings of the inquiry officer, in the event, the same goes against him. Resultantly, the inquiry officer's report will remain binding on the disciplinary authority and he may not be in a position to differ from the same. In view of the above, the valuable right of the petitioner to make representation against the inquiry report will be an empty formality. Submission has been advanced that the allegation of negligence of duty has to be understood as a case of negligence on the part of a medical practitioner in performance of his duties. The same will constitute medical negligence. The petitioner relies upon the judgment delivered by the Hon'ble Supreme Court in the matter of Jacob Mathew vs State of Punjab & Anr. reported in (2005) 6 SCC 1 wherein the court held that the essential components of negligence are \"duty\", \"breach\" and \"resulting damage\". A simple lack of care, an error of judgment or an accident is not proof of negligence on the part of a medical professional. To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something, in the given facts and circumstances, no medical professional in his ordinary senses and prudence would have done or failed to do. It has been submitted that the standard of practice and technique of medical practitioner is enumerated in the Indian Medical Council (Professional Conduct, Conduct and Ethics) Regulations, 2002 which has been framed under the Indian Medical Council Act, 1956. The Indian Medical Council Act, 1956 and the delegated legislation that is the Indian Medical Council (Professional Conduct, Conduct and Ethics) Regulations, 2002 are central legislations and operate in the special field relating to the act and conduct of the medical practitioner. Reliance has been placed upon Section 20A of the Indian Medical Council Act, 1956. The said regulation was framed to specially deal with professional conduct of medical practitioners and it operates in a special field. The Kolkata Port Trust Employees' (Classification, Control and Appeal) Regulations, 1987 and the Kolkata Port Trust Employees' (Conduct) Regulations, 1987 is the general law applicable to all employees. The general law is always subject to the special law. The petitioner relies upon Section 38(1)(3) of the West Bengal Clinical Establishment (Registration, Regulation and Transparency) Act, 2017 which mentions that any complaint of medical negligence against the medical professionals will be dealt with by the respective State Medical Councils. It has been submitted that disciplinary action in respect of professional misconduct can only be undertaken by the competent authority having expertise and none else. It has been argued that the petitioner even though is an employee of the Kolkata Port Trust shall always be guided by the provisions of the Indian Medical Council Act, 1956 and the subordinate legislations. The service regulations are meant for each and every employee of the Kolkata Port Trust and the same deals with the general service conditions of an employee. As the allegations made against the petitioner relates to his professional misconduct the same has to be dealt with by the special law and not the general one. To fortify his argument on the above issue the petitioner has relied upon the judgment delivered by the Hon'ble Supreme Court in the matter of Life Insurance Corporation of India vs D. J. Bahadur & Ors. reported in AIR 1980 SC 2181, KSL & Industries Ltd. Vs Arihant Thread Ltd. & Ors. reported in (2015) 1 SCC 166 and Atmaram Porperties Pvt. Ltd. Vs Oriental Insurance Co. Ltd. reported in (2018) 2 SCC 27. The petitioner is also aggrieved by the act of the respondent KoPT in paying him 50% of his last pay drawn with allowance, as subsistence allowance to him. The petitioner submits that as the regulation under which he has been suspended does not provide for any rate of subsistence allowance accordingly he is entitled to claim full salary during his period of suspension. The petitioner submits that an employee is entitled to receive full emoluments during his period of suspension, in the absence of a provision specifying the percentage or amount that is to be paid on account of subsistence allowance. The petitioner relies upon a judgment delivered by the Hon'ble Supreme Court in the matter of Balvantray Ratilal Patil vs State of Maharashtra reported in AIR 1968 SC 800 wherein the court held that the amount that is to be paid to the public servant during suspension will depend upon the provisions of the statute in that connection. If there is no such provision the public servant will be entitled to his full emolument during the period of suspension. The petitioner relies upon the judgment delivered by this court in the matter of The Secretary of the Managing Committee of Rabindra Smriti (S) B. & Ors. vs M. Bhattacharya & Ors. reported in 2009 (1) CLJ (Cal) 410 wherein the court held that in the absence of a restrictive provision it would be unjust to deny full salary to the employee during the period of suspension. The petitioner cites the judgment delivered by the Hon'ble Supreme Court of India in Delhi Cloth and General Mills Co. Ltd. vs The Workmen & Ors. reported in AIR 1967 SC 469 on the issue that the payment of subsistence allowance during suspension is a matter incidental to the disciplinary proceeding initiated against the petitioner. Institution of a fresh writ petition only for a direction for payment of subsistence allowance will amount to multiplicity of proceedings. The petitioner has prayed for a direction upon the Kolkata Port Trust to pay full salary from the date of suspension after adjusting the amount that has already been paid on account of subsistence allowance. The respondent Kolkata Port Trust submits that the petitioner admitted in his writ petition that he is on probation and subject to the provision of the Kolkata Port Trust Employees' (Classification, Control and Appeal) Regulations, 1987 and the Kolkata Port Trust Employees' (Conduct) Regulations, 1987. It has been submitted that the question of unethical practice by a medical practitioner is a disciplinary issue, which if proved, may lead to suspension of practice, either temporarily or permanently. There are regulatory bodies which regulate the professionals. The same can never stand in the way of an employer from taking disciplinary action against his employee on the ground of misconduct. The petitioner was liable to be proceeded with departmentally as he committed misconduct in his workplace. In the event of his indictment in the disciplinary proceeding the consequences of penalty prescribed in the service regulations may be attracted. The penalty may also include termination of service. It has been submitted that there is a provision for appeal under Regulation 15 of the Kolkata Port Trust Employees' (Classification, Control and Appeal) Regulations, 1987 if an employee is aggrieved by the order of suspension and the order passed for suspension allowance. The petitioner never availed of the alternative efficacious remedy of appeal and straight away approached the Hon'ble High Court for relief. The respondents submit that the proceeding is at a very initial stage and the recording of evidence in the said case has not been initiated till date. It has been submitted that the issuance of charge sheet does not give rise to any cause of action and the writ petition is liable to be dismissed on the ground of being pre- mature. The respondents rely upon the judgment delivered by the Hon'ble Supreme court in the matter of State of Punjab vs Ajit Singh reported in (1997)11 SCC 368 wherein the court held that the High Court was in error in setting aside the charge sheet that was served upon the respondent in the disciplinary proceedings. The court held that till the evidence is produced it cannot be said that the charges contained in the charge sheet are without any basis whatsoever. The respondents submit that in the case at hand the court ought not to enter into the merits of the charge sheet as recording of evidence has not started as yet. There is no scope of judicial review at this stage. The respondents rely upon the judgment delivered by the Hon'ble Supreme Court in the matter of Ram Laxman vs Presiding Officer reported in (2010)10 SCC 201 wherein the court held that if the management has held a disciplinary inquiry against an employee it has got the right to place that employee under suspension, if on the basis of the findings in the departmental inquiry the management is prima facie of the opinion that the employee, on account of charges having been proved, was liable to be dismissed from service. Once the employee is placed under suspension, the management cannot take any work from the suspended employee nor can the employee claim full salary from the management. But the management has to pay the subsistence allowance to the employee so that he may sustain himself. The respondents rely upon the judgment delivered by the Hon'ble Supreme Court in the matter of P. B. Desai vs State of Maharashtra reported in (2013) 15 SCC 481 wherein the court held that whenever the principle of 'duty to take care' is founded on a contractual relationship, it acquires the legal character. The ethical 'duty to treat' on the part of the doctors is clearly covered under the Code of Medical Ethics, 1972 and whenever there is breach of the Code the aggrieved patient or the party aggrieved can approach the relevant disciplinary committee constituted by the State Medical Council concerned. It has been very submitted by the learned senior advocate appearing on behalf of the respondents that the petitioner will be subjected to the disciplinary proceeding in respect of those charges which do not touch his professional conduct. Since the petitioner was an employee of Kolkata Port Trust, the employer by virtue of the service regulations is free and entitled to take appropriate action against the petitioner in accordance with such regulations. The respondents pray for dismissal of the writ petition so that they can proceed with the disciplinary proceeding in accordance with the service regulations. I have heard the submissions made on behalf of both the parties. Admittedly, the petitioner is an employee of the Kolkata Port Trust and is guided by the service regulations. According to the petitioner the charges which have been levelled against him cannot be decided by the disciplinary authority as the same touches his professional conduct. The Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 was promulgated for regulating the professional conduct, etiquette and ethics for registered medical practitioners. There is enough provision in the said regulation for punishing and taking disciplinary action against a medical professional who has acted in derogation of the code. The same is a special regulation to address the medical professionals. The primary allegation against the petitioner is unethical activity, unethical practice, and criminal conspiracy. All the three charges points towards the professional conduct of a medical practitioner. The service regulations framed by the employer is applicable to all the employees of the organisation. There may be various issues with regard to/relating to the service conditions of an employee. In such a situation the general law which is applicable for all the employees can be invoked. The moment the charge relates to professional conduct or misconduct the same cannot be addressed by invoking the general law and the same is required to be redressed by application of the special law. It is noteworthy that the patient party did not lodge any FIR or complaint against the petititioner either before the police or the medical regulatory authority. The charges of gross negligence of duty, lack of devotion to work and poor conduct are not reflected in the Article of Charge. In the statement of imputation of misconduct the same has been incorporated. The petitioner has been charged to act contrary to the provisions mentioned in Regulations 3(1) and 3(9) of the Kolkata Port Trust Employees (Conduct) Regulations, 1987. The aforesaid Regulations are applicable to all the employees of the Kolkata Port Trust. Regulation 3(1) mentions that every employee shall, at all times, maintain absolute integrity and devotion to duty and Regulation 3(9) mentions that no employee shall neglect his duties or cause others to neglect their duties including slowing down of work deliberately which may cause loss to the employer or act in a manner which will be prejudicial to the interest of the employer. No employee shall commit any act which is subversive of discipline or good behaviour. The statement of imputation clearly indicates that the behaviour of the petitioner on the fateful day was such that the same amounted to gross negligence of duty, criminal conspiracy and lack of devotion to work and poor conduct. Negligence of duty, lack of devotion and poor conduct relates to the professional conduct of the petitioner and not in respect of the general conduct of an employee. The behaviour complained of, is the act of the petitioner in issuing order to inject/injecting KCL/insulin to a patient leading to her death immediately. The expression 'such behaviour of Dr. Mukherjee amounts to' implies that the professional behaviour of the petitioner is in question and not his general behaviour. Accordingly the petitioner is liable to be tried under the special law and not the general law/regulation covering all the employees of Kolkata Port Trust. An employer always has the right and authority to take steps against an erring employee. But when an employee serving in a specialised field, with special knowledge, is charged with an act which appears to be a transgression to the standard practice then he is liable to be dealt with by the regulatory body which is specially constituted to deal with such action or inaction. When the legislature has enacted specific laws to deal with specified acts of misconduct there is no reason to try the wrongdoer under a different law, not suitable to cater to the appropriate requirement. The charge sheet in the instant case revolves around the professional behaviour of the employee. Embarking upon an inquiry into the said charges, by the employer, who is not authorised in law to adjudicate the same, will amount to initiating and continuing a proceeding without jurisdiction. A proceeding initiated by an authority without jurisdiction, is bad in law and liable to be set aside. The court in the matter of Anjan Bhattacharya (supra) held that as there is a suitable legislation to deal with the issues then no other mechanism including a disciplinary proceeding may be allowed to sub-plant or circumvent it. Hence the argument of the petitioner that the disciplinary authority is not competent to decide the charges levelled against him in the charge sheet is partially correct. The issue of quantum of subsistence allowance to be paid to a suspended employee has been set at rest by the Hon'ble Supreme Court in the matter of Balbantray Ratilal Patil (supra) wherein a three-Judge Bench laid down that what amount should be paid to the public servant during the period of suspension will depend upon the provisions of the statute or statutory rule in that connection. If there is no such provision the public servant will be entitled to his full emoluments during the period of suspension. The decision in the matter of Mahavir Bhattacharya (supra) reiterates the same principal that in the absence of any restrictive provision it would be unjust to deny full salary to an employee during his period of suspension. Admittedly, the service regulations of Kolkata Port Trust do not mention the amount of allowance that is to be paid to an employee when under suspension. In the absence of any specific provision restricting such payment the employee is entitled to receive his full salary during the period of suspension. Fundamental Rules are the general rules guiding central government employees. As the employer has its own set of rules and regulations concerning service of its employees the Fundamental Rules shall not be applicable in the instant case. In view of the discussions made herein above the disciplinary proceeding initiated against the petitioner is liable to be set aside. The same is hereby quashed. As a consequence thereof the petitioner shall be entitled to receive the full salary, less the amount paid as subsistence allowance, during the period of suspension. The respondent authority shall clear the dues of the petitioner within a period of three months from date. The employer will be free to proceed against the petitioner under the service rules concerning his general behaviour, if situation so demands. In view of disposal of the writ petition the connected application is also disposed of. W.P No. 441 of 2018 and G.A. No. 2928 of 2018 are disposed of accordingly. Urgent certified photocopy of this judgment, if applied for, be supplied to the parties on compliance of usual legal formalities. (Amrita Sinha, J.)",
        "135785387": "REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 443 OF 2020 NAGABHUSHAN \u2026APPELLANT VERSUS THE STATE OF KARNATAKA \u2026RESPONDENT JUDGMENT M.R. SHAH, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order of conviction dated 11.10.2019 passed by the High Court of Karnataka at Bengaluru in Criminal Appeal No. 525/2013, by which the High Court has allowed the said appeal preferred by the respondent \u2013 State of Karnataka and has reversed the judgment and order of acquittal passed by the learned trial Court insofar as the appellant \u2013 original Signature Not Verified Digitally signed by Chetan Kumar Date: 2021.03.08 17:19:10 IST Reason: accused no.1 is concerned for the offences punishable under Sections 498A and 302 read with 34 of the IPC and consequently convicted the appellant herein \u2013 original accused no.1 for the aforesaid offences, original accused no.1 has preferred the present appeal. However, the High Court has confirmed the judgment and order of acquittal insofar as original accused nos. 2 and 3 are concerned. 2. As per the case of the prosecution, original accused no.1 married the deceased, the daughter of PW3 & PW4 nine years ago, prior to the date of the incident. That the deceased was subjected to the mental cruelty and there was demand of dowry from the parents of the deceased Rekha. In that regard, mediation was also held and thereafter PW3 & PW4 gave Rs. 10,000/- and Rs. 20,000/- on two occasions. On 24.06.2010 at about 9 p.m. in the matrimonial home, appellant herein \u2013 original accused no.1 took up quarrel with his wife Rekha (deceased) and at that time, he took kerosene and poured the same on her and lit the fire. The deceased was taken to the hospital. That based on the information, the investigating officer went to the hospital and recorded her statement on 27.06.2010 (Exhibit P5). It is alleged that even earlier also on 25.06.2010, the statement of the deceased was recorded by the police (Exhibit D2). On conclusion of the investigation, the investigating officer filed the chargesheet against all the accused for the offences punishable under Sections 498A and 302 read with 34 of the IPC. The case was committed to the Court of Sessions. The accused pleaded not guilty and therefore all of them came to be tried by the learned Sessions Court for the aforesaid offences. 2.1 To prove the case against the accused, the prosecution examined in all 14 witnesses and brought on record the documentary evidences including Exhibit P5 \u2013 dying declaration and the medical evidence. That after closure of the evidence on the side of the prosecution, further statements of the accused under Section 313 Cr. P.C. were recorded. Appellant herein \u2013 original accused no.1 examined himself as DW1 and also examined a witness as DW2. The accused relied upon the earlier statement of the deceased (Exhibit D2). That on appreciation of the evidence and not believing the dying declaration \u2013 Exhibit P5 and having found contradictions in two dying declarations Exhibit P5 and Exhibit D2, the learned trial Court acquitted all the accused for the offences for which they were tried. 3. Feeling aggrieved and dissatisfied with the impugned judgment and order of acquittal passed by the learned trial Court, the State of Karnataka preferred appeal before the High Court. By the impugned judgment and order, the High Court has reversed the order of judgment and order of acquittal insofar as the appellant herein \u2013 original accused no.1 is concerned and has convicted the appellant herein \u2013 original accused no.1 for the offences punishable under Sections 498A and 302 read with 34 of the IPC. The judgment and order of acquittal for original accused nos. 2 & 3 has been confirmed by the High Court. 3.1 Feeling aggrieved and dissatisfied with the impugned judgment and order of the High Court reversing the judgment and order of acquittal and convicting the appellant herein \u2013 original accused no.1 for the offences punishable under Sections 498A & 302 read with 34 of the IPC, original accused no.1 has preferred the present appeal. 4. Learned counsel appearing on behalf of the appellant has vehemently submitted that in the facts and circumstances of the case, the High Court has committed a grave error in reversing the well- reasoned judgment and order of acquittal passed by the learned trial Court. 4.1 It is submitted that while reversing the order of acquittal passed by the learned trial Court, the High Court has exceeded in its jurisdiction vested in it under Section 378 of the Cr. P.C. 4.2 It is submitted that as there were material contradictions in two dying declarations and Exhibit D2 was the dying declaration first in time which came to be believed by the learned trial Court, the learned trial Court committed no error in acquitting the accused. 4.3 It is submitted that the learned trial Court on appreciation of evidence, more particularly two dying declarations, disbelieved the subsequent dying declaration (Exhibit P5) and thereby acquitted the accused, the same was not required to be interfered with by the High Court in exercise of the appellate jurisdiction against the judgment and order of acquittal. 4.3 It is further submitted that while believing the dying declaration vide Exhibit P5, the High Court has not appreciated that the same was recorded by PW10 in the presence of PW13, PW8 and parents of the deceased. 4.4 It is submitted that the High Court ought to have appreciated that the earlier dying declaration vide Exhibit D2, which was recorded on 25.06.2010, was recorded immediately on the next day of the incident wherein deceased Rekha has specifically stated that it was an accidental fire due to which she sustained burn injuries. It is submitted that even in the history which was recorded in the hospital, when the deceased Rekha was admitted, it was stated that the deceased had suffered accidental burn injuries. 4.5 It is submitted that the High Court has not properly appreciated the fact that the dying declaration (Exhibit P5) was recorded later on and that too after the parents of the deceased reached to the hospital. 4.6 It is submitted that possibility of tutoring the deceased Rekha so as to make statement against the accused persons cannot be ruled out. It is submitted that therefore at least the appellant is entitled to the benefit of doubt. 4.6 It is submitted that the High Court has not at all appreciated and/or considered the defence version that on the date of incident there was no power supply in the house and therefore the deceased went to the kitchen to prepare the food and found that the gas was empty and thereafter she told the appellant that she would use the kerosene stove to prepare the food, and that while she was preparing the food with the help of candle light and when the same was almost exhausted, she tried to lit another candle but the same had fallen on the ground where the kerosene was already spread while pouring the kerosene to the stove and as a result of which the fire was caught on her clothes. 4.7 It is submitted that even thereafter when the deceased screamed, the appellant \u2013 original accused no.1 rushed to the spot and tried to extinguish the fire and while extinguishing the fire, he also sustained burn injuries in his right hand. It is submitted that the aforesaid circumstances which were considered by the learned trial Court while acquitting the accused have not been considered and/or appreciated by the High Court while reversing the order of acquittal passed by the learned trial Court and convicting the accused \u2013 appellant herein. 4.8 It is submitted that as such when it was an appeal against the judgment and order of acquittal, the High Court was not justified in reappreciating the oral as well as documentary evidence. It is submitted that only in a case where the findings recorded by the learned trial Court are found to be perverse, the interference by the appellate court against the order of acquittal is warranted. It is submitted that in the present case, as such, the view taken by the learned trial Court was a plausible view, which was on appreciation of the evidences on record and therefore the High Court has committed a grave error in reversing the judgment and order of acquittal passed by the learned trial Court and convicting the accused -appellant herein. 5. We have heard the learned counsel appearing on behalf of the appellant at length. 5.1 Being the statutory appeal against the judgment and order of the High Court reversing the acquittal and thereby convicting the appellant herein \u2013 original accused no.1, we have reappreciated the entire evidence on record. 5.2 Before considering the appeal on merits, the law on the appeal against acquittal and the scope and ambit of Section 378 Cr.P.C. and the interference by the High Court in an appeal against acquittal is required to be considered. 5.2.1 In the case of Babu v. State of Kerala, (2010) 9 SCC 189, this Court had reiterated the principles to be followed in an appeal against acquittal under Section 378 Cr.P.C. In paragraphs 12 to 19, it is observed and held as under: 12. This Court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the trial court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject-matter of scrutiny by the appellate court. (Vide Balak Ram v. State of U.P (1975) 3 SCC 219, Shambhoo Missir v. State of Bihar (1990) 4 SCC 17, Shailendra Pratap v. State of U.P (2003) 1 SCC 761, Narendra Singh v. State of M.P (2004) 10 SCC 699, Budh Singh v. State of U.P (2006) 9 SCC 731, State of U.P. v. Ram Veer Singh (2007) 13 SCC 102, S. Rama Krishna v. S. Rami Reddy (2008) 5 SCC 535, Arulvelu v. State (2009) 10 SCC 206, Perla Somasekhara Reddy v. State of A.P (2009) 16 SCC 98 and Ram Singh v. State of H.P (2010) 2 SCC 445) 13. In Sheo Swarup v. King Emperor AIR 1934 PC 227, the Privy Council observed as under: (IA p. 404) \u201c\u2026 the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.\u201d 14. The aforesaid principle of law has consistently been followed by this Court. (See Tulsiram Kanu v. State AIR 1954 SC 1, Balbir Singh v. State of Punjab AIR 1957 SC 216, M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200, Khedu Mohton v. State of Bihar (1970) 2 SCC 450, Sambasivan v. State of Kerala (1998) 5 SCC 412, Bhagwan Singh v. State of M.P(2002) 4 SCC 85 and State of Goa v. Sanjay Thakran (2007) 3 SCC 755) 15. In Chandrappa v. State of Karnataka (2007) 4 SCC 415, this Court reiterated the legal position as under: (SCC p. 432, para 42) \u201c(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, \u2018substantial and compelling reasons\u2019, \u2018good and sufficient grounds\u2019, \u2018very strong circumstances\u2019, \u2018distorted conclusions\u2019, \u2018glaring mistakes\u2019, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of \u2018flourishes of language\u2019 to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.\u201d 16. In Ghurey Lal v. State of U.P (2008) 10 SCC 450, this Court reiterated the said view, observing that the appellate court in dealing with the cases in which the trial courts have acquitted the accused, should bear in mind that the trial court\u2019s acquittal bolsters the presumption that he is innocent. The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching the demeanour of the witnesses, and was in a better position to evaluate the credibility of the witnesses. 17. In State of Rajasthan v. Naresh (2009) 9 SCC 368, the Court again examined the earlier judgments of this Court and laid down that: (SCC p. 374, para 20) \u201c20. \u2026 an order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused.\u201d 18. In State of U.P. v. Banne (2009) 4 SCC 271, this Court gave certain illustrative circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court. The circumstances include: (SCC p. 286, para 28) \u201c(i) The High Court\u2019s decision is based on totally erroneous view of law by ignoring the settled legal position; (ii) The High Court\u2019s conclusions are contrary to evidence and documents on record; (iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice; (iv) The High Court\u2019s judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case; (v) This Court must always give proper weight and consideration to the findings of the High Court; (vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal.\u201d A similar view has been reiterated by this Court in Dhanapal v. State (2009) 10 SCC 401. 19. Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court\u2019s acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference.\u201d (emphasis supplied) 5.2.2 When the findings of fact recorded by a court can be held to be perverse has been dealt with and considered in paragraph 20 of the aforesaid decision, which reads as under: \u201c20. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is \u201cagainst the weight of evidence\u201d, or if the finding so outrageously defies logic as to suffer from the vice of irrationality. (Vide Rajinder Kumar Kindra v. Delhi Admn (1984) 4 SCC 635, Excise and Taxation Officer-cum-Assessing Authority v. Gopi Nath & Sons 1992 Supp (2) SCC 312, Triveni Rubber & Plastics v. CCE 1994 Supp. (3) SCC 665, Gaya Din v. Hanuman Prasad (2001) 1 SCC 501, Aruvelu v. State (2009) 10 SCC 206 and Gamini Bala Koteswara Rao v. State of A.P (2009) 10 SCC 636).\u201d (emphasis supplied) 5.2.3 It is further observed, after following the decision of this Court in the case of Kuldeep Singh v. Commissioner of Police (1999) 2 SCC 10, that if a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with. 5.3 In the case of Vijay Mohan Singh v. State of Karnataka, (2019) 5 SCC 436, this Court again had an occasion to consider the scope of Section 378 Cr.P.C. and the interference by the High Court in an appeal against acquittal. This Court considered catena of decisions of this Court right from 1952 onwards. In paragraph 31, it is observed and held as under: \u201c31. An identical question came to be considered before this Court in Umedbhai Jadavbhai (1978) 1 SCC 228. In the case before this Court, the High Court interfered with the order of acquittal passed by the learned trial court on re-appreciation of the entire evidence on record. However, the High Court, while reversing the acquittal, did not consider the reasons given by the learned trial court while acquitting the accused. Confirming the judgment of the High Court, this Court observed and held in para 10 as under: (SCC p. 233) \u201c10. Once the appeal was rightly entertained against the order of acquittal, the High Court was entitled to reappreciate the entire evidence independently and come to its own conclusion. Ordinarily, the High Court would give due importance to the opinion of the Sessions Judge if the same were arrived at after proper appreciation of the evidence. This rule will not be applicable in the present case where the Sessions Judge has made an absolutely wrong assumption of a very material and clinching aspect in the peculiar circumstances of the case.\u201d 31.1. In Sambasivan v. State of Kerala (1998) 5 SCC 412, the High Court reversed the order of acquittal passed by the learned trial court and held the accused guilty on re-appreciation of the entire evidence on record, however, the High Court did not record its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. Confirming the order passed by the High Court convicting the accused on reversal of the acquittal passed by the learned trial court, after being satisfied that the order of acquittal passed by the learned trial court was perverse and suffered from infirmities, this Court declined to interfere with the order of conviction passed by the High Court. While confirming the order of conviction passed by the High Court, this Court observed in para 8 as under: (SCC p. 416) \u201c8. We have perused the judgment under appeal to ascertain whether the High Court has conformed to the aforementioned principles. We find that the High Court has not strictly proceeded in the manner laid down by this Court in Ramesh Babulal Doshi v. State of Gujarat (1996) 9 SCC 225 viz. first recording its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable, which alone will justify interference in an order of acquittal though the High Court has rendered a well-considered judgment duly meeting all the contentions raised before it. But then will this non-compliance per se justify setting aside the judgment under appeal? We think, not. In our view, in such a case, the approach of the court which is considering the validity of the judgment of an appellate court which has reversed the order of acquittal passed by the trial court, should be to satisfy itself if the approach of the trial court in dealing with the evidence was patently illegal or conclusions arrived at by it are demonstrably unsustainable and whether the judgment of the appellate court is free from those infirmities; if so to hold that the trial court judgment warranted interference. In such a case, there is obviously no reason why the appellate court\u2019s judgment should be disturbed. But if on the other hand the court comes to the conclusion that the judgment of the trial court does not suffer from any infirmity, it cannot but be held that the interference by the appellate court in the order of acquittal was not justified; then in such a case the judgment of the appellate court has to be set aside as of the two reasonable views, the one in support of the acquittal alone has to stand. Having regard to the above discussion, we shall proceed to examine the judgment of the trial court in this case.\u201d 31.2. In K. Ramakrishnan Unnithan v. State of Kerala (1999) 3 SCC 309, after observing that though there is some substance in the grievance of the learned counsel appearing on behalf of the accused that the High Court has not adverted to all the reasons given by the trial Judge for according an order of acquittal, this Court refused to set aside the order of conviction passed by the High Court after having found that the approach of the Sessions Judge in recording the order of acquittal was not proper and the conclusion arrived at by the learned Sessions Judge on several aspects was unsustainable. This Court further observed that as the Sessions Judge was not justified in discarding the relevant/material evidence while acquitting the accused, the High Court, therefore, was fully entitled to reappreciate the evidence and record its own conclusion. This Court scrutinised the evidence of the eyewitnesses and opined that reasons adduced by the trial court for discarding the testimony of the eyewitnesses were not at all sound. This Court also observed that as the evaluation of the evidence made by the trial court was manifestly erroneous and therefore it was the duty of the High Court to interfere with an order of acquittal passed by the learned Sessions Judge. 31.3. In Atley v. State of U.P. AIR 1955 SC 807, in para 5, this Court observed and held as under: (AIR pp. 809-10) \u201c5. It has been argued by the learned counsel for the appellant that the judgment of the trial court being one of acquittal, the High Court should not have set it aside on mere appreciation of the evidence led on behalf of the prosecution unless it came to the conclusion that the judgment of the trial Judge was perverse. In our opinion, it is not correct to say that unless the appellate court in an appeal under Section 417 CrPC came to the conclusion that the judgment of acquittal under appeal was perverse it could not set aside that order. It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well- established rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence. It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal. If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated. (See in this connection the very cases cited at the Bar, namely, Surajpal Singh v. State AIR 1952 SC 52; Wilayat Khan v. State of U.P AIR 1953 SC 122) In our opinion, there is no substance in the contention raised on behalf of the appellant that the High Court was not justified in reviewing the entire evidence and coming to its own conclusions. 31.4. In K. Gopal Reddy v. State of A.P. (1979) 1 SCC 355, this Court has observed that where the trial court allows itself to be beset with fanciful doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible, it is the obvious duty of the High Court to interfere in the interest of justice, lest the administration of justice be brought to ridicule.\u201d (emphasis supplied) 6. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and the findings recorded by the High Court, the High Court has specifically observed and held that the finding recorded by the learned trial Court discarding and/or not believing the dying declaration (Exhibit P5) is perverse and contrary to the evidence on record. The High Court has given cogent reasons while believing dying declaration (Exhibit P5) and has also considered in detail what is stated in the later dying declaration (Exhibit P5), vis-\u00e0-vis, the medical evidence and the injuries sustained by the deceased. Therefore, as such, the High Court has not committed any error in reappreciating the entire evidence on record and thereafter interfering with the judgment and order of acquittal passed by the learned trial Court, having found the finding recorded by the learned trial Court perverse. 7. Now so far as the merits of the appeal are concerned, it cannot be disputed that in the present case there are two dying declarations, (i) Exhibit P5 and (ii) Exhibit D2. The High Court in the impugned judgment and order has given cogent reasons to rely upon and believe the second dying declaration \u2013 Exhibit P5. The High Court has also taken note of the fact that the second dying declaration is reliable and the version in the second dying declaration is supported by the circumstances, namely, the injuries sustained by the deceased; no stove was found at the place of occurrence. The High Court has also taken note of the fact that in the second dying declaration, the deceased has explained her first statement that it was a case of accident and she categorically stated in the second dying declaration that at the time when she gave first statement that it was a case of accident, she was given threats by the appellant herein \u2013 original accused no.1 that he will kill her children also. She also stated in the second dying declaration that after her parents came, she got the courage to tell the truth. Therefore, as such, the High Court rightly believed the second dying declaration \u2013 Exhibit P5. 8. At this stage, the decisions of this Court in the cases of Nallam Veera Stayanandam v. Public Prosecutor (2004) 10 SCC 769; Kashmira Devi v. State of Uttarakhand (2020) 11 SCC 343; and Ashabai v. State of Maharashtra (2013) 2 SCC 224 are required to be referred to. In the aforesaid decisions, this Court had an occasion to consider the cases where there are multiple dying declarations. In the aforesaid decisions, it is held that each dying declaration has to be considered independently on its own merit as to its evidentiary value and one cannot be rejected because of the contents of the other. It is also held that the Court has to consider each of them in its correct perspective and satisfy itself which one of them reflects the true state of affairs. When there are multiple dying declarations, each dying declaration has to be separately assessed and evaluated on its own merits. 9. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, and on evaluation of both dying declarations independently, dying declaration recorded as Exhibit P5 reflects the true state of affairs and the contents are supported by the medical evidence and the injuries sustained by the deceased. The plea put forth by the defence that it was a case of an accident and while pouring the kerosene from kerosene can to the bottle, the same had fallen on the clothes placed on the ground and when the deceased tried to remove the clothes from that place, the candle fell on the ground, as a result, her clothes caught fire and she sustained burn injuries is disbelieved by the High Court considering the circumstances noted by the High Court that the deceased sustained injuries on the face, chest and back and to the upper limbs. The main injuries are found on the upper limbs of the body. Therefore, as rightly observed by the High Court, the aforesaid injuries can be possible when the kerosene is poured on the deceased. According to the defence and as per the evidence of DW1-A1, while putting the kerosene into the stove, accidentally the kerosene had fallen on the ground and also on her clothes, and thereafter when the candle fell on the ground, the same had come in contact with her clothes and kerosene. If that is the case, there would have been injuries to her feet also. However, no burn injuries are found on her feet. No stove was found at the place of occurrence. Therefore, the defence came out with a false case of accidental fire, which, as such, is not supported by any other reliable evidence. On the contrary, this evidence speaks otherwise. Therefore, when A1 came with a false defence and the dying declaration \u2013 Exhibit P5 is corroborated by other surrounding circumstances and evidence and after independent evaluation of Exhibit P5 and Exhibit D2, when the High Court has found that Exhibit P5 is reliable and inspiring confidence and thereafter when the High Court has convicted the accused, it cannot be said that the High Court has committed any error. 10. Now so far as the submission on behalf of the accused that even thereafter he tried to extinguish the fire and he also sustained injuries and therefore it cannot be said that the appellant has committed an offence punishable under Section 302 IPC is concerned, at the outset, it is required to be noted that in the present case the prosecution is successful in proving that the accused \u2013 appellant herein poured kerosene on the deceased. As per dying declaration Exhibit P5, it has been proved that the deceased was set ablaze by pouring kerosene on her. The act of the accused falls in clause fourthly of Section 300 IPC. It emerges from the evidence on record that the accused poured kerosene on the deceased and not only poured kerosene but also set her ablaze by the matchstick. Merely because thereafter the A1 might have tried to extinguish the fire, that will not bring the case out of clause fourthly of Section 300 IPC. A somewhat similar submission was made before this Court in the case of Santosh v. State of Maharashtra (2015) 7 SCC 641. In the case before this Court, it was contended on behalf of the accused who poured kerosene on the deceased and set her ablaze by matchstick that thereafter they tried to save the deceased by pouring water on her and therefore it was contended on behalf of the accused that by that conduct it cannot be said that the intention of the accused was to cause death of the deceased. The aforesaid has been negated by this Court by observing in paragraphs 9 to 18 as under: \u201c9. Insofar as the first contention that the appellant is not responsible for the death of deceased Saraswatibai, the defence made an attempt to contend that the fire was accidental and that the appellant tried to extinguish the fire in order to save her and in that process, he also suffered burn injuries. The prosecution has adduced cogent evidence to prove that the appellant has caused the death of deceased Saraswatibai. The accused suspected the deceased of infidelity and picking up a fight over it, he kicked her and inflicted fist-blows and further set her on fire by pouring kerosene over her person. PW 6, doctor certified that the deceased was in a fit mental condition to make the statement and PW 7, the Executive Magistrate recorded the dying declaration Ext. 1. In the said dying declaration, the deceased had categorically stated that on the date of incident, the appellant poured kerosene over her person and set her on fire. That accused poured kerosene on the deceased and set her on fire is corroborated by the oral testimony of PW 3, Sindhu Sunil Ingole (sister-in- law) of the deceased. PW 1 Raju Janrao Gavai, neighbour of the deceased who accompanied the deceased to the hospital to whom the deceased is said to have made a statement about the overt act of the accused, had only stated that the deceased told him that the accused beat her and also kicked her. PW 1 had not supported the statement of the deceased in the dying declaration that the accused poured kerosene on her and set her on fire. However, the prosecution has established the guilt of the accused by Ext. 1 dying declaration and the oral evidence of the mother (PW 2) and the sister-in-law (PW 3) and the same cannot be doubted. 10. The learned counsel for the appellant contended that there was no premeditation and the appellant had poured kerosene from the lamp nearby and thereafter the appellant attempted to extinguish the fire by pouring water on her and himself getting burn injuries in the process. It was submitted that the conduct of the appellant in trying to extinguish the fire immediately after the incident would clearly show that there was no intention on the part of the appellant to commit the murder. In support of his contention, he placed reliance on the judgment of this Court in Kalu Ram v. State of Rajasthan [(2000) 10 SCC 324 : 2000 SCC (Cri) 86] . 11. The question falling for consideration is whether the act of the accused pouring water would mitigate the offence of murder. Where the intention to kill is present, the act amounts to murder, where such an intention is absent, the act amounts to culpable homicide not amounting to murder. To determine whether the offender had the intention or not, each case must be decided on its facts and circumstances. From the facts and circumstances of the instant case, it is evident that : (i) there was a homicide, namely, the death of Saraswatibai; (ii) the deceased was set ablaze by the appellant and this act was not accidental or unintentional; and (iii) the post-mortem certificate revealed that the deceased died due to shock and septicaemia caused by 60% burn injuries. When the accused poured kerosene on the deceased from the kerosene lamp and also threw the lighted matchstick on the deceased to set her on fire, he must have intended to cause the death of the deceased. As seen from the evidence of PW 5, panch witness, in the house of the appellant, kerosene lamp was prepared in an empty liquor bottle. Whether the kerosene was poured from the kerosene lamp or from the can is of no consequence. When there is clear evidence as to the act of the accused to set the deceased on fire, absence of premeditation will not reduce the offence of murder to culpable homicide not amounting to murder. Likewise, pouring of water will not mitigate the gravity of the offence. 12. After attending to nature's call, the deceased returned to the house a little late. The accused questioned her as to why she was coming late and he also suspected her fidelity. There was no provocation for the accused to pour kerosene and set her on fire. The act of pouring kerosene, though on the spur of the moment, the same was followed by lighting a matchstick and throwing it on the deceased and thereby setting her ablaze. Both the acts are intimately connected with each other and resulted in causing the death of the deceased and the act of the accused is punishable for murder. 13. Even assuming that the accused had no intention to cause the death of the deceased, the act of the accused falls under clause Fourthly of Section 300 IPC that is the act of causing injury so imminently dangerous where it will in all probability cause death. Any person of average intelligence would have the knowledge that pouring of kerosene and setting her on fire by throwing a lighted matchstick is so imminently dangerous that in all probability such an act would cause injuries causing death. 14. Insofar as the conduct of the accused in attempting to extinguish fire, placing reliance upon the judgment of this Court in Kalu Ram case [(2000) 10 SCC 324 : 2000 SCC (Cri) 86] , it was contended that such conduct of the accused would bring down the offence from murder to culpable homicide not amounting to murder. In Kalu Ram case [(2000) 10 SCC 324 : 2000 SCC (Cri) 86] , the accused was having two wives. The accused in a highly inebriated condition asked his wife to part with her ornaments so that he could purchase more liquor, which led to an altercation when the wife refused to do as demanded. Infuriated by the fact that his wife had failed to concede to his demands, the accused poured kerosene on her and gave her a matchbox to set herself on fire. On her failure to light the matchstick, the accused set her ablaze. But when he realised that the fire was flaring up, he threw water on her person in a desperate bid to save her. In such facts and circumstances, this Court held that the accused would not have intended to inflict the injuries which she sustained on account of the act of the accused and the conviction was altered from Section 302 IPC to Section 304 Part II IPC. 15. The decision in Kalu Ram case [(2000) 10 SCC 324 : 2000 SCC (Cri) 86] cannot be applied in the instant case. The element of inebriation ought to be taken into consideration as it considerably alters the power of thinking. In the instant case, the accused was in his complete senses, knowing fully well the consequences of his act. The subsequent act of pouring water by the accused on the deceased also appears to be an attempt to cloak his guilt since he did it only when the deceased screamed for help. Therefore, it cannot be considered as a mitigating factor. An act undertaken by a person in full awareness, knowing its consequences cannot be treated on a par with an act committed by a person in a highly inebriated condition where his faculty of reason becomes blurred. 16. Within three months of her marriage, the deceased died of burn injuries. In bride burning cases, whenever the guilt of the accused is brought home beyond reasonable doubt, it is the duty of the court to deal with it sternly and award the maximum penalty prescribed by the law in order that it may operate as a deterrence to other persons from committing such offence. 17. This Court on various occasions has stressed the need for vigilance in cases where a woman dies of burn injuries within a short span of her marriage and that stern view needs to be adopted in all such cases. In Satya Narayan Tiwari v. State of U.P. [(2010) 13 SCC 689 : (2011) 2 SCC (Cri) 393] , this Court in paras 3 and 9 has held as under : (SCC pp. 692 & 693) \u201c3. Indian society has become a sick society. This is evident from the large number of cases coming up in this Court (and also in almost all courts in the country) in which young women are being killed by their husbands or by their in-laws by pouring kerosene on them and setting them on fire or by hanging/strangulating them. What is the level of civilisation of a society in which a large number of women are treated in this horrendous and barbaric manner? What has our society become\u2014this is illustrated by this case. *** 9. Crimes against women are not ordinary crimes committed in a fit of anger or for property. They are social crimes. They disrupt the entire social fabric. Hence, they call for harsh punishment. Unfortunately, what is happening in our society is that out of lust for money people are often demanding dowry and after extracting as much money as they can they kill the wife and marry again and then again they commit the murder of their wife for the same purpose. This is because of total commercialisation of our society, and lust for money which induces people to commit murder of the wife. The time has come when we have to stamp out this evil from our society, with an iron hand.\u201d 18. Upon analysis of the evidence adduced by the prosecution, the courts below recorded concurrent findings that the accused caused the death of deceased Saraswatibai and convicted the appellant. It is well settled that concurrent findings of fact cannot be interfered with unless the findings are perverse and unsupportable from the evidence on record. This view has been reiterated in Dhananjay Shanker Shetty v. State of Maharashtra [(2002) 6 SCC 596 : 2002 SCC (Cri) 1444] . In the totality of the facts and circumstances, in our view, the concurrent findings of facts recorded by the courts below are based on evidence and we see no infirmity in the impugned judgment warranting interference\u201d. Therefore, after pouring kerosene on the deceased and thereafter setting her ablaze, thereafter merely because the accused might have tried to extinguish the fire will not take the case out of the clutches of clause fourthly of Section 300 of the IPC. The act of the accused pouring kerosene on the deceased and thereafter setting her ablaze by matchstick is imminently dangerous which, in all probability, will cause death. Therefore, the High Court has rightly convicted the accused for the offence under Section 302 IPC. 11. In view of the above and for the reasons stated above, the present appeal fails. We see no reason to interfere with the impugned judgment and order of conviction passed by the High Court. The appeal deserves to be dismissed and is accordingly dismissed. \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026..J. [Dr. Dhananjaya Y. Chandrachud] New Delhi; \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026.J. March 8, 2021. [M.R. Shah]",
        "155222376": "NON-REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO(S).4124 OF 2009 AJMER VIDYUT VITRAN NIGAM LIMITED \u2026..APPELLANT(S) VERSUS HINDUSTAN ZINC LTD. AND ANOTHER \u2026..RESPONDENT(S) JUDGMENT Rastogi, J. 1. The instant appeal under Section 125 of the Electricity Act, 2003 (hereinafter referred to as the \u201cAct 2003\u201d) has been preferred at the instance of the distribution company, namely, Ajmer Vidyut Vitran Nigam Limited (for short \u201cAVVNL\u201d), a Government Company incorporated under the Companies Act, 1956 with an object, inter alia, for distribution and supply of electricity, assailing the impugned judgment dated 03rd February, 2009 passed by the Appellate Signature Not Verified Digitally signed by Tribunal for Electricity. JAGDISH KUMAR Date: 2022.02.17 16:35:49 IST Reason: 2. The brief facts culled out from the record and relevant for the purpose are that the Hindustan Zinc Limited (for short \u201cHZL\u201d) has captive generating plant set up at Chanderia in the District of Chittorgarh, State of Rajasthan where it generates electricity primarily for its own consumption and uses the electricity generated at its units/works situated at:- i) Debari in the district of Udaipur; ii) Agucha in the district of Bhilwara; and iii) Dariba in the district of Rajsamand. All the three districts are in the State of Rajasthan and for wheeling of electricity generated in the captive generating plant, HZL uses the distribution system of AVVNL from the point of injection at Chanderia to the points of drawal at its different units/works as indicated above. 3. In other words, the use of the distribution system for wheeling electrical energy from the generating point to the drawal is called \u201copen access facility\u201d and the user of such facility is called \u201copen access consumer\u201d. For the aforesaid purposes, regulations were framed by the Rajasthan Electricity Regulatory Commission (hereinafter referred to as the \u201cCommission\u201d) in exercise of its power conferred under Section 42 read with Section 181 of the Act, 2003 by notification dated 26th May, 2004 called the Rajasthan Electricity Regulatory Commission (Terms and Conditions for Open Access) Regulations, 2004 (for short \u201cRegulations, 2004\u201d) which came to be further amended by 3rd amendment vide notification dated 27th December, 2006 under Section 42 read with Section 181 of the Act, 2003 called the Rajasthan Electricity Regulatory Commission (Terms and Conditions for Open Access) (3rd Amendment) Regulations, 2006(hereinafter being referred to as the \u201cRegulations 2006\u201d). 4. Under the scheme of Regulations 2004, open access customer has been defined under Regulation 2(c) which includes such persons using or intending to use the transmission system or the distribution system or both the licences in the State for transmission or wheeling of electricity in the State and open access agreement is to be executed between the parties in terms of Regulation 12 and the pricing mechanism of unscheduled interchange pricing is to be determined in terms of Regulation 20 as specified by the Commission for the State from time to time. 5. Regulations 2(c), 12 and 20 of Regulations, 2004 which came to be notified on 26th May, 2004 are reproduced thereunder:- \u201c2. Definitions \u2026. c) \"Open Access Customer\" means a person using or intending to use the transmission system or the distribution system or both of the licensees in the state for transmission or wheeling of electricity in the State; \u2026\u2026... 12. Open Access Agreement (1) An open access customer shall enter into commercial agreements with the transmission and distribution licensees, generators, traders and others, as applicable for use of their transmission and distribution systems; (2) The agreement shall provide, amongst other things for the eventuality of premature termination of agreement and its consequences on the contracting parties; (3) After agreements have been entered into and copies furnished to State Load Dispatch Centre, the State Load Dispatch Centre shall inform the open access customer the date from which open access will be available which will not be later than 3 days from the date of furnishing of agreements.\u201d 20. Unscheduled interchange pricing The payment for mismatch between the schedule and the actual drawal shall be governed by the pricing mechanism as specified by the Commission for the State from time to time.\u201d 6. In terms of the provisions of Regulations 2004, the agreement for short term open access of distribution system and supply of regular and standby HT supply came to be executed between the parties i.e. the appellant and the respondent herein on 22nd September, 2006 and draft format of the open access agreement became effective from 01st May, 2006 and they are concerned with Part III of standby supply and the manner in which the billing has to take place followed with payments. The relevant clauses of the open access agreement for the purpose are reproduced thereunder:- \u201c22. Tariff applicable for stand by supply shall be as applicable for temporary supply as per tariff for electricity supply determined by RERC as applicable to HT large industrial/ mixed load/ bulk supply service. Tariff shall be applied on daily basis as & when such standby supply is availed & shall be subject to minimum annual drawal for 36 days in a financial year. 25. This agreement shall, subject as hereinafter provided, remain in force at least for a period of one year in the first instance commencing from the date of supply and shall remain in force till its termination. Provided that either party shall be at liberty to terminate this agreement or get his contract demand altered by giving one month's notice in writing in that behalf subject to the condition shall reduction in contract demand will be permissible only on completion of initial period of one year including the notice period. The consumer can also get his connection permanently disconnected or get his contract demand reduced on the same day of notice if he is ready to by pay the minimum billing amount equivalent to one month. 29. Billing (1) Ajmer Discom (distribution licensee) shall raise the bills at the end of the month for the use of distribution system for wheeling of Open Access Power, as also for regular and standby supply. The bills shall be for: a. Wheeling charges for the contracted open access power on distribution system as determined by the Commission from time to time. b. Cross-subsidy surcharge as determined by the Commission, from time to time under OA Regulations. c. Additional surcharge as determined by the Commission from time to time under OA Regulation in case the consumer avails open access and receives electricity supply from a licensee other than (i.e. distribution licensee of the area of supply). d. Regular supply as per tariff for supply of electricity, specified by the distribution licensee for temporary supply for large industrial / non domestic/ mixed load service (schedule HT-5). e. Standby supply as per tariff for supply of electricity, specified by the distribution licensee for temporary supply for large industrial/non domestic/ mixed load service, during the period of outage of generating unit effecting open access supply for the days of such drawals. f. Inadvertent drawal of electricity in excess of regular & standby supply as per subclause (e) at temporary supply tariff. g. Reactive energy charges for open access supply at the rates specified by the Commission. (2) The Billing shall be made as per finalized energy accounts issued by SLDC, based on various para-meters at 15 minutes interval, starting from 0.00 hours of the day, stored in ABT complaint meters and as specified by the Commission. Provided, that pending finalization of energy accounts by SLDC, bills shall be issued by the distribution licensee based on provisional energy account. Provided that a soft copy of the provisional and final energy account shall be supplied to open access customer along with the bills. 30. Payments: The open access customer shall arrange the payments for the bills raised by the distribution licensee within the due date indicated on such bills. In the event of monthly bill[s] not paid in full within the period specified on the bills, the Open access customer shall pay the Late Payment Surcharge to the distribution licensee. Late payment surcharge shall be as specified for applicable tariff at clause 28(d) from time to time. This agreement shall be governed by the provisions of the general conditions of supply of the distribution licensee except for the specific provisions made in this agreement. Provided that such specific provisions will apply to the respective part of the agreement. This agreement is liable to be modified subject to revision/final agreement approved by RERC.\u201d 7. Consequently, the Commission in terms of open access regulations specified a standard format of agreement for short term open access for distribution system and for HT supply which came to be served on 03rd January, 2007. It may be relevant to note that under clause 29(1)(f), the standard format of agreement was supplied by the Commission by its letter dated 03rd January, 2007, which is referred to as under:- \u201c29(1)(f). inadvertent drawal of electricity in excess of regular & standby supply as per subclause (e) at temporary supply tariff.\u201d 8. Although, it was forwarded to the respondent for its signatures on 07th June, 2007, Clause 29(1)(f) of the format was different from the standard agreement prescribed in the open access regulations and the change effected was thus (inadvertent drawl of electricity in excess of regular & standby supply as per sub-clause (e) at temporary supply tariff). 9. Pursuant to the release of standard format agreement, the appellant (AVVNL) sought certain clarifications pertaining to alleged contradiction in Clauses 29(1)(f) and 32(4) of the standard format agreement from the Commission. In furtherance thereof, the appellant issued a revised demand for access drawal of electricity on the basis of tariff for regular supply on 30th June, 2007. 10. The reference to the changes in the standard agreement for HT supply and short term open access in distribution came to be examined by the Commission in the Petition No.134/07 and after deliberation, the Commission made substantial changes and altered Clauses 29(1)(e) and 29(1)(f) and 32(4) of the standard format agreement and observed that the inadvertent drawal will be billed at the same rate as regular supply irrespective of whether such inadvertent drawal was done during a period of outage of generating unit affecting open access supply or during the period of shortage of supply. 11. To be more specific, Clause 29(1)(f) earlier provided that all inadvertent supply would be charged as per temporary supply tariff but under order dated 15th September, 2007, the Commission altered the position substantially and held that instead of the tariff for temporary supply, a tariff for regular supply will be payable for inadvertent drawal. The extract of the order passed by the Commission dated 15th September, 2007 with which the present controversy is concerned is referred to under Clauses 29(1)(e) and 29(1)(f) which are reproduced hereunder:- \u201cClause 29(1)(e) : 13. Under clause 29(1)(e) it has been proposed that in the situation of reduced supply or outage of generating unit effecting supply to Open Access Consumer the tariff for standby supply shall be as per tariff for temporary supply, whereas in the Agreement the situation considered is the outage of generating unit only. Jodhpur Discom has agreed for his proposal, Sh. P.N.Bhandari, also agreed to the proposed change to be incorporated in the Agreement. Clause 29(1)(f) : 16. Under clause 29 of the Agreement it is stipulated that the distribution licensee shall raise the bills for different purposes wherein at para (f) it is for inadvertent excess drawal of electricity. Under clause 29(1)(f), it is now proposed to specify the applicable rate also which is actually missing for billing inadvertent excess supply for the sake of clarify in implementation. Sh. Bhandari stated that since inadvertent supply or drawal, according to Commission's own definition is inevitable mismatch, which cannot be stopped by licensee or the CPP, therefore, levy of excess demand charges in such cases would be outright harsh. Shri Bhandari further submitted that in clause 29 (l)(f) the provision to charge temporary supply tariff on per day basis when drawal has exceeded is quite logical and does not require any change as it being accidental and non intentional. 17. The inadvertent supply in this case is the excess demand over and above the regular supply demand plus standby supply demand which is in excess of regular and standby supply. The existing provision in the Agreement considered inadvertent drawal, which is in excess of regular and standby supply. The standby supply has been further qualified as the supply which is as per sub clause (e) to be billed at temporary supply tariff. This qualification is inadvertent and can be deleted. However, this does not mean that the applicable tariff for inadvertent or excess drawal is temporary supply tariff. The accounting and billing of permissible and excess demand is covered in clause 32 of the Agreement for both the scenarios i.e. with ABT & without ABT. The proposed changes clarify that this inadvertent supply is a part of excess demand of regular supply contract demand. Jodhpur Discom has not agreed to the proposed change stating that drawal of electricity in excess of regular and standby supply should be billed at temporary supply tariff. Jaipur Discom also did not agree to the proposal without stating any reason. Commission\u2019s decision : 20. In view of the above, it is decided that the sub-clause 29(1)(f) of the Agreement be clarified further as under: \"(f) drawal of electricity in excess of sum of the contract demand under regular supply and standby supply shall be billed alongwith 29(1)(d) above.\" 12. No clarification was made by the Commission as to whether the substantial changes which have been made under the open access agreement will apply retrospectively from the date of agreement when executed or prospectively from the date the Commission under its Order dated 15th September, 2007 has given effect to. Although a clarification was made by the Secretary of the Commission to be prospective which indeed holds no authority but when the bills were raised by the appellant for the period from June, 2006 to February, 2008 (for the anterior period) by demand notice dated 12th March, 2008, aggrieved with the same, the respondents filed appeal before the Appellate Tribunal questioning the order of the Commission dated 15th September, 2007 with the grievance that the substantial modification has been made in terms of the standard format agreement and is not merely an interpretation/clarification of the standard format agreement and in the given facts and circumstances, it will apply only prospectively and the demand raised for the anterior period to the substantial changes that the Commission has given effect to by its order dated 15th September, 2007 will not in any manner be construed different on the clarification under terms of open access agreement. 13. The Appellate Tribunal after taking note of the submissions made under its order impugned held that the proposed changes which are effected by the Commission and particularly, in Clause 29(1)(f) are substantial changes in the standard format agreement and further observed that it has altered the position substantially and changed the tariff from temporary supply to regular supply in cases of inadvertent drawal and such substantial changes/amendments which have been made, in no manner, can be read as mere clarification but a substantial alteration in the standard format agreement, therefore, the same can be given effect to only from the date, i.e. 15th September, 2007, the Commission has introduced those amendments under the agreement. The operative part of the Order of the Tribunal is quoted hereunder:- \u201cThe impugned order of the Commission says that \"any interpretation/clarifications etc. to the order dated 15.09.07 have to be derived from within it\". The Commission thus means that retrospectivity or prospectivity of the order has to be determined from the order itself. Apparently, the Commission is avoiding to make a categorical pronouncement about the prospectivity or retrospectivity of the order dated 15.09.07. Nonetheless, the Commission in paragraph 12 of the impugned order, as extracted above in paragraph 12, says that the order dated 15.09.07 is but an interpretation of various clauses of the standard format. Thus the Commission, without making a categorical pronouncement says that the order dated 15.09.07 shall apply with effect from the date standard format was issued. Thus there is a genuine grievance on the part of the appellant which has required the appellant to present the appeal. We find force in the contention of the appellant. The order dated 15.09.07 has to be read as an order amending the standard format issued on 01.03.07 and therefore can be given effect to only from 15.09.07. The respondent No.2 in its petition No. 166 of 2007 had prayed that the order dated 15.09.07 be declared as operative retrospectively from the effective date of agreement i.e. 01.05.06. This prayer could not at all have been allowed because even the format as issued on 01.03.07 could not be given retrospectivity from 01.05.06. The parties had agreed in the original agreement to abide by any change in the terms and conditions of open access notified by the Commission. This does not mean every time there is a change, notified by the Commission, the change will relate back to the effective date of the agreement. Every change can have only prospective effect. Therefore, the change brought about by the order dated 01.03.07 would be effective only from 01.03.07. Similarly, the change brought about by order dated 15.09.07 could be effective from 15.09.07. The petition No. 166 of 2007 presented by respondent No.2 before the Commission only deserved to be dismissed.\u201d 14. The judgement of the Appellate Tribunal dated 03rd February, 2009 became the subject matter of challenge in appeal before us under Section 125 of the Act 2003. 15. Learned counsel for the appellant submits that changes which have been given effect to by the Commission under its order dated 15th September, 2007 are strictly in terms of the scheme of Regulations 2004 which clearly postulate that the parties will abide by any change in the terms and conditions, if any, being notified by the Commission and once the Commission has recorded its satisfaction and introduced those changes in the open access agreement dated 22nd September, 2006, it goes without saying that such clarification stands incorporated and made a part of the agreement from the date of its execution. It is true that to give retrospective effect to any statutory instrument, power is vested with the legislature but in the instant facts and circumstances, where the parties have entered into a commercial agreement(open access agreement) with open eyes that they will abide by any change in the terms and conditions of the open access agreement notified by the Commission, all alterations effected by the Commission indeed will have to be read as a part of the agreement as being incorporated from its very inception. Thus, in the facts and circumstances, the finding of prospective applicability of the changes in Clause 29(1)(f) which has been given effect to by the Tribunal under its order dated 03rd February, 2009 is not sustainable and needs to be interfered with by this Court. 16. Learned counsel for the respondents, on the other hand, while supporting the finding recorded by the Tribunal submits that the Commission under its order dated 15th September, 2007 has made substantial changes in the open access agreement executed between the parties and Clause 29(1)(f), in particular, which was clear in terms that during the period of outage of the generating unit effecting the open access supply because of which all inadvertent supply would be charged as per temporary supply tariff which has been substantially altered by the Commission and instead of the tariff for temporary supply, the tariff for regular supply became payable for inadvertent drawal and this cannot be considered to be a mere clarification under the terms of agreement executed between the parties and if that being so, all such substantial modifications/amendments which are made under the terms of agreement, in no manner, can be read prejudicial to the interest of the parties and if such substantial change which has been given effect to is given retrospective effect, that indeed will seriously prejudice the rights of the respondents, more so, when the conditions of the open access agreement with which the present dispute is concerned in reference to Clauses 29(1)(e) and 29(1)(f) of the agreement are neither in contradistinction nor in contravention to the provisions of the Regulations 2004 or of 3rd Amendment 2006. In the given circumstances, the finding recorded by the Tribunal that such changes being substantial in character may not be read prejudicial to the interest of the parties inter se to be read prospectively and that has been accepted by the respondents and accordingly, the payments are made after 15th September, 2007 in terms of the modified clause 29(1)(f) which the Commission has given effect to and the finding which is duly supported by law needs no interference of this Court. 17. We have heard the learned counsel for the parties and with their assistance perused the material available on record. 18. The question in the instant appeal before us is as to whether the Order dated 15th September, 2007 of the Commission is a mere interpretation/clarification of standard format agreement or the order changes the position substantially the terms of the format having prospective effect for raising future bills. 19. It is not disputed that the Commission issued the draft agreement to give effect to the Regulations, 2004 and further 3rd amendment was made to the regulations on 27th December, 2006 with provisions for unscheduled interchange pricing. The Commission further made amendment in the format on 03rd January, 2007 and included Clause 32 in the agreement. 20. The initial standard format agreement executed between the parties on 22nd September, 2006 effective from 01st May, 2006 undisputedly, refer to inadvertent drawal of electricity in sub-clause 29(1)(f) as quoted above and that such drawal in excess of regular and standby supply was to be charged as per sub-clause (e). Sub- clause (e) simply provided that standby supply would be charged as per temporary rates during the period of outage of generating unit affecting open access supply for the days of such drawal. Clause 22 makes no exception for standby supply during the period of outage of generating unit affecting open access supply. In other words, the \u201cperiod of outage of generating unit affecting open access supply\u201d in sub-clause (e) is not of any consequence but all that it can mean is that during the time of outage, the standby supply will be charged at the same rate at which temporary supply is charged and if sub-clause (e) and sub-clause (f) are read in conjunction, it clearly manifests that all inadvertent supply will be charged as per temporary supply tariff. Sub-clauses 29(1)(e) and 29(1)(f) which have been substantially altered by the Commission under its Order dated 15th September, 2007 holds that instead of the tariff of temporary supply, the tariff of regular supply will be payable for inadvertent drawal. 21. It may further be noticed that the new sub-clause makes no reference to outage of the generating units or of unscheduled interchange. At the same time, Clause 32(4) under the heading \u201cunscheduled interchange pricing\u201d also mentions excess drawal at the drawal end beyond the permissible limit in case of reduced supply or outage of suppliers generating station. The situation contemplated in Clauses 29(f) and 32(4) deals in different context and if they are overlapping, it will always be open for clarification but the Order of the Commission dated 15th September, 2007, in our view, cannot be considered to be as such a clarification since it has virtually amended the original Clause 29(1)(f) thereby changing the tariff for inadvertent drawal from temporary supply rate to the regular supply rate which indeed is a substantial alteration in the conditions of the agreement. 22. It is also not the case of the appellant that the conditions of open access agreement with which we are presently concerned and particularly, Clauses 29(1)(e) and 29(1)(f) of the agreement are either in contradistinction or in contravention to the Regulations, 2004 and tariff to be charged for inadvertent drawal from temporary supply rate was equally permissible under the scheme of Regulations, 2004 and agreement was accordingly executed between the parties in compliance thereof. 23. In our considered view, the substantial change/modification which has been given effect to by the Commission under its order dated 15th September, 2007 under Clause 29(1)(f) effecting the tariff for inadvertent drawal from temporary supply rate to regular supply rate is indeed a substantial change in the condition of the agreement and prejudicial to the interest of the parties (respondents herein) and cannot be read to apply retrospectively from the date of agreement executed between the parties. 24. Although, we cannot lay down a straight-jacket principle as to what is to be considered a clarification or what may tantamount to a substantial change or modification but if we take note of the guiding principles from Section 152 of the Code of Civil Procedure, 1908 in a way where there is an unintentional omission or mistake or an arithmetic or typographical error, if any, while drafting the agreement that may have been permissible to give an effect at a later stage from its inception but, at the same time, where there is a substantial amendment/alteration in the conditions of agreement, if taken place with its inception, may certainly cause prejudice to the rights of the parties inter se financially or otherwise. As we are dealing with the commercial agreement, if any modification, that too substantial is being permitted to be altered under the agreement executed between the parties at a later stage with retrospective effect even by the statutory authority in the garb of correction or mistake or any typographical error, if any, that may, if prejudicial to the interest of the parties inter se in law be neither permissible nor advisable to give effect anterior to the date of modification/altercation in terms and conditions of the agreement. 25. This Court, by an interim order dated 27th August, 2010, directed the appellant to file an undertaking in the format of an affidavit that in case the appeal fails, the money which has been deposited by the respondents will be refunded subject to adjustment, if any, with interest that may be fixed by the Court at the appropriate time. Taking note of the order dated 27th August, 2010 passed by this Court, directing the appellant to refund the amount deposited by the respondents with interest, we consider it appropriate to clarify that since the parties are in long business relations, let the money which has been deposited by the respondents as noticed by this Court in the order dated 27th August, 2010, be adjusted against the future bills to be raised by the appellant in the terms as agreeable to the parties. 26. Consequently, the appeal stands dismissed with the observations. 27. Pending application(s), if any, stand disposed of. \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026.J. (AJAY RASTOGI) \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026.J. (ABHAY S. OKA) NEW DELHI FEBRUARY 17, 2022.",
        "33220115": "[REPORTABLE] IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL No. 7451 of 2021 The Rajasthan Marudhara Gramin Bank \u2026Appellant (s) (RMGB) & Anr. Versus Ramesh Chandra Meena & Anr. \u2026Respondent (s) JUDGMENT M. R. Shah, J. 1.0. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 07.07.2021 passed by the High Court of Judicature for Rajasthan at Jodhpur in D.B. Special Appeal Writ No.311 of 2021, by which, Signature Not Verified Digitally signed by R Natarajan the Division Bench of the High Court has dismissed Date: 2022.01.04 16:52:34 IST Reason: the said Appeal and has confirmed the judgment and order dated 28.01.2021 passed by the learned Single Judge, by which, the learned Single Judge allowed the writ petition preferred by the respondent herein (hereinafter referred to as the \u201coriginal writ petitioner\u201d) and directed the appellant Bank to allow the original writ petitioner to be represented by a retired employee of the Bank in the departmental inquiry, the Appellant Bank has preferred the present appeal. 2.0. The facts leading to the present appeal in nutshell are as under: 2.1. That the respondent herein \u2013 original writ petitioner was working as Cashier \u2013 cum\u00ad Clerk (office Assistant). While working as a Branch Manager is alleged to had committed certain irregularities amounting to misconduct. A show cause notice was issued by the Bank dated 24.4.2019 whereby it was stated that while working at Rawastar Branch, he had committed irregularities while granting loans to farmers / villagers under the loan scheme and he did not take adequate precautions and without written mandates of borrowers, he transferred the loan amount in favour of another person and had thus committed misconduct. One another similar show cause notice was issued on dated 24.6.2019. Departmental Inquiry was initiated against him. A chargesheet dated 1.11.2019 was served upon the original writ petitioner by the Bank in terms of Rajasthan Marudhara Gramin Bank (Officers and Employees) Service Regulation, 2010 (hereinafter referred to as the \u201cRegulation, 2010\u201d). A written reply was submitted by the original writ petitioner to the chargesheet issued. He denied the charges leveled against him. Not satisfied with the reply, the Bank initiated departmental inquiry. One Shri K.C. Gupta was appointed as an Enquirer Officer. An opportunity was afforded to the original writ petitioner to take assistance of a defence representative (hereinafter referred to as \u201cDR\u201d) in accordance with Regulation, 2010 as also in accordance with guidelines issued by the Bank. However, the original writ petitioner informed the Enquiry Officer that he may be allowed to defend himself in the inquiry through a legal practitioner. Keeping in view the restrictions under Regulation 44 of the Regulation, 2010 on engagement of legal practitioner during the inquiry, vide communication dated 17.3.2020, his request permitting him to defend himself through a legal practitioner came to be declined by the Enquiry Officer. A request was made to the Disciplinary Authority by the original writ petitioner permitting him to engage a legal practitioner as his DR. Having considered that no complicated legal question has been involved in the matter and the Presenting Officer appointed by the Disciplinary Authority is neither Law Officer nor a legal practitioner and keeping in mind the Regulation 44 of Regulation, 2010 on engagement of legal practitioner during the inquiry, the request to permit him to represent through legal practitioner came to be declined by the Disciplinary Authority, which was communicated to him vide communication dated 27.5.2020. Again a request was made by the original writ petitioner to permit him to engage a legal practitioner as his DR in the inquiry proceedings, which again came to be rejected. During the inquiry proceedings on 11.08.2020, the original writ petitioner submitted a consent letter of one Shri Mahesh Kumar Atal to be engaged as his DR. The said request was turned down. Again a request was made to permit him to engage any legal practitioner or any retired officer from the Bank as his DR, which again came to be turned down by the Disciplinary Authority. Aggrieved by the order passed by the Disciplinary Authority dated 19.08.2020, the original writ petitioner approached the High Court by way of SB Civil Writ Petition No.8363 of 2020 inter alia, praying that he may be permitted to engage any legal practitioner or retired officer of the Bank as his DR. The said writ petition was opposed by the Bank. Regulation 44 of Regulation, 2010 and the Circular dated 31.01.2014 as also the guidelines issued by the Bank in respect of disciplinary proceeding that no outsider, not associated with the Bank can be permitted to act as a DR were pressed into service. That by judgment and order dated 28.1.2021, the learned Single Judge allowed the said writ petition and directed the Bank to permit the original writ petitioner to be represented through retired officer of the Bank in the disciplinary proceedings. Feeling aggrieved and dissatisfied with the judgment and order passed by the learned Single Judge, the Bank preferred appeal before the Division Bench of the High Court. By impugned judgment and order, the Division Bench of the High Court has dismissed the said appeal mainly on the ground that since circular dated 31.1.2014 and the Regulation 8.2 did not prohibit the utilization of the services of ex\u00ad employee of the Bank, therefore, judgment and order passed by the learned Single Judge is not to be interfered with. 2.2. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court directing the Bank to permit the original petitioner to be represented through retired officer of the Bank in the disciplinary proceedings, the Bank has preferred present appeal. 3.0. Shri Rishabh Sancheti, learned counsel appearing for the appellant has vehemently submitted that in the facts and circumstances of the case, the High Court has committed a grave error in directing the appellant Bank to permit the respondent original writ petitioner to be represented through retired officer of the Bank in the disciplinary proceedings. 3.1. It is submitted that the High Court has not at all adverted to Regulation 8.2 of the Handbook of Vigilance Administration & Disciplinary Action (hereinafter referred to as the \u201cHandbook Procedure\u201d) which has been duly approved by the Board of the Bank and applicable to all kind of matters. 3.2. It is vehemently submitted that Regulation 8.2 of the Handbook Procedure specifically provides that the defence representative should be serving official / employee from the Bank. It is submitted that the provisions of Handbook Procedure are binding on all the employees and applicable to all kind of matters. It is submitted that even there was no challenge to Regulation 8 of the Handbook Procedure by the original writ petitioner. 3.3. It is further submitted that High Court has not properly appreciated the fact that provisions of Regulation, 2010 are to be read with Handbook provisions in a harmonious manner. 3.4. It is further submitted that High Court has erred in construing Regulation 44 as permitting outsiders into a disciplinary inquiry. It is submitted that in fact Regulation 44 restricts legal practitioner to be DR without prior permission. It is submitted that Regulation 44 can in no manner can be construed to mean that it permits all outsiders except lawyers. It is submitted that this is so, since the basic principle is that an employee has no right to representation in the departmental proceedings by another person or a lawyer unless the Service Rules specifically provides for the same. It is submitted that right to representation is available only to the extent specifically provided for in the Rules. Reliance is placed on the decisions of this Court in the case of P. Raghava Kurup & Anr. v. V. Ananthakumari & Anr. reported in (2007) 9 SCC 179; N. Kalindi & Ors. v. Tata Locomotive & Engg. Co. Ltd reported in (1960) 3 SCR 407; National Seeds Corporation Limited vs. K.V. Rama Reddy reported in (2006) 11 SCC 645 and Bharat Petroleum Corporation Limited v. Maharashtra General Kamgar Union & Ors. reported in (1999) 1 SCC 626. 3.5. It is submitted that right to representation in the inquiry can be restricted, controlled or regulated by the Statute, Service Rules, Regulations or Standing Orders and the extent of representation in any enquiry has to be in accordance with the Statute, Service Rules, Regulations or Standing Orders etc. In support of above submission, reliance is placed on the decision of this Court in the case of Cipla Limited & Ors v. Ripu Daman Bahnot & Anr. reported in (1999) 4 SCC 188; in the case of Crescent Dyes & Chemicals Limited v. Ram Naresh Tripathi reported in (1993) 2 SCC 115 and in the case of Indian Overseas Bank vs. Indian Overseas Bank Officer\u2019s Association and Another reported in (2001) 9 SCC 540. 3.6. It is further submitted that as held by this Court in the case of Bharat Petroleum Corporation Limited (supra) there should be minimum intervention of any outsider / legal practitioner in departmental proceedings and the choice, if granted by the Statute, Service Rules, Regulations or Standing Orders, cannot be allowed to travel beyond the Statutes / Service Rules/ Regulations/ Standing Orders. 3.7. It is submitted that in the present case the service conditions of the employee of the bank are governed by Regulation, 2010, which do not contain any provision enabling the Candidate under the enquiry to have any defence representative outside the employees of the Bank. It is submitted that the object and purpose of Regulation 44 was to keep a check on frivolous and unnecessary request made for legal practitioner if the facts and situation do not demand so. It is submitted that Handbook Procedure issued by the Vigilance Department of the Bank which was duly approved by the Board also do not allow the employee to choose any outsider or a legal practitioner as his defence representative and the same is expressly provided under Clause 8 of Chapter VIII of the Handbook Procedure. 3.8. It is submitted that the impugned judgment and order has created an anomalous situation where: I. Ex\u00ademployees who themselves may have been subject of a disciplinary enquiry/ chargesheeted / dismissed from service are also enabled to act as Defence Representatives. II. Ex\u00ademployees who were part of Vigilance or Audit Sections who come across a lot of information of confidential nature are enabled to act as Defence Representatives, which would result in grave injustice. III. The solemn nature of proceedings is taken away and would result in issues of orderliness as well as decorum when a disgruntled ex\u00ademployee is enabled to act as a Defence Representative. CVC Circular no.19.9.2021 dated 6.10.2021 prescribes the time limit for completion of departmental enquiry within 6 months and the same has adopted in the Vigilance Handbook page no.55 para 7.2. If an outsider gets permitted completion of departmental inquiry within prescribed time limit shall be a problem. IV. It is a matter of record that presently in almost all the pending Disciplinary enquiries, most of the Employees\u00ad under\u00ad enquiry are now asking for retired officials to act as Drs. 3.9. It is submitted that aforesaid aspect has not at all been considered by the High Court while permitting the respondent employee to allow ex\u00ademployee as his DR. Making the above submissions, it is prayed to allow the present appeal. 4.0. Learned counsel appearing for the respondent has submitted that Regulation 44 of the Regulation 2020 do not bar engagement of retired employee of the Bank to act as a DR. It is submitted that the only bar under the Rules and the Regulation is with regard to appointment of legal practitioner as a DR without permission of the Bank. It is submitted that therefore, the High Court has rightly directed the Bank to permit the respondent employee to avail service of the retired employee of the Bank as defence representative. 4.1. It is submitted that Handbook of Vigilance Administration and Disciplinary Action dated 15.3.2019 are not binding rules or guidelines and are merely directory in nature. 4.2. It is submitted that on conjoint reading of Clause 7.2 and Clause 8.2 of Handbook Procedure would mean that only officer who is junior to the presenting officer and Enquiry Officer can be appointed as DR. It is submitted that this would result in gross miscarriage of justice and in violation of principles of natural justice. 4.3. It is submitted that judgments cited by the learned counsel for the appellant shall not be applicable to the facts of the present case as every bank has its own Rules and Regulations. It is submitted that in the present case there is no specific bar in the service regulation in engaging retired employee of the Bank as defence representative. It is submitted that therefore, in absence of any specific bar and considering the Regulation 44, the High Court has not committed any error. 4.4. It is submitted that similar question came up for determination before the High Court of Allahabad in the case of Rakesh Singh vs. Chairman and Disciplinary Authority and Another in Writ Appeal No. 64711 of 2013 wherein the High Court has held that in absence of any specific bar in the Regulation, the denial of the right to engage a retired employee of the Bank as defence representative is not justified. It is submitted that said judgment of the Allahabad High Court has been affirmed by this Court and the SLP against the said judgment and order has been dismissed. Making the above submissions and relying upon the above decisions, it is prayed to dismiss the present appeal. 5.0. Heard the learned counsel for the respective parties at length. By the impugned judgment and order, the High Court has permitted the respondent employee who is facing disciplinary proceedings to represent through ex\u00ademployee of the Bank. While permitting the respondent employee, the High Court while construing Regulation 44 of Regulation, 2010 has observed that the Regulation 44 only restricts representation by a legal practitioner, and even that too is permissible of course with the leave to the competent authority, and there is no complete or absolute bar even on engaging a lawyer, the employee cannot be restrained from availing services of retired employee of a Bank. However, it was the specific case on behalf of the Bank that in view of circular dated 31.01.2014 and clause 8.2 of the Handbook Procedure, the DR should be a serving official / employee from the Bank. Therefore, the short question which is posed for consideration of this Court is whether the respondent employee, as a matter of right is entitled to avail the services of an Ex\u00ad employee of the Bank as his DR in the departmental proceedings ? 6.0. While considering the aforesaid issue, few decisions of this Court on the right of the employee to make representation in the Departmental Proceedings are required to be referred to. 6.1. In the case of Kalindi and Ors (supra), it is observed and held that ordinarily in inquiries before domestic tribunals the person accused of any misconduct conducts his own case and therefore, it is not possible to accept the argument that natural justice ex\u00adfacie demands that in the case the enquiries into a chargesheet of misconduct against a workman he should be represented by a member of his Union; though of\u00adcourse an employer in his discretion can and may allow his employee to avail himself of such assistance. The dictum of this decision has been subsequently elucidated. 6.2. In the case of the Dunlop Rubber Co. (India) Ltd v. Workmen reported in (1965) 2 SCR 139, after considering its earlier decision in the case of Kalindri and ors (supra), it is observed and held that there is no per se right to representation in the departmental proceedings through a representative through own union unless the company by its Standing Order recognized such a right. It is observed that refusal to allow representation by any Union unless the Standing Orders confer that right does not vitiate the proceedings. It is further observed that in holding domestic enquiries, reasonable opportunity should be given to the delinquent employees to meet the charge framed against them and it is desirable that at such an enquiry the employee should be given liberty to represent their case by persons of their choice, if there is no standing order against such a course being adopted and if there is nothing otherwise objectionable in the said request. It is further observed that denial of such an opportunity cannot be said to be in violation of principles of natural justice. 6.3. In the case of Cipla Ltd. and Ors (supra), it is observed and held as under: \u201c13. In N. Kalindi v. Tata Locomotive & Engg. Co Ltd, it was held that a workman against whom a departmental enquiry is held by the Management has no right to be represented at such enquiry by an outsider, not even by a representative of his Union though the Management may in its discretion allow the employee to avail of such assistance. So also in Dunlop Rubber Company vs. Workmen, 1965 (2) SCR 139 = AIR 1965 SC 1392 = 1965 (1) LLJ 426, it was laid down that an employee has no right to be represented in the disciplinary proceedings by another person unless the Service Rules specifically provided for the same. A Three\u00adJudge Bench of this Court inCrescent Dyes and Chemicals Ltd. vs. Ram Naresh Tripathi, (1993) 2 SCC 115 = 1992 Suppl. (3) SCR 559, laid down that the right to be represented in the departmental proceedings initiated against a delinquent employee can be regulated or restricted by the Management or by the Service Rules. It was held that the right to be represented by an advocate in the departmental proceedings can be restricted and regulated by statutes or by the Service Rules including the Standing Orders, applicable to the employee concerned. The whole case law was reviewed by this Court in Bharat Petroleum Corporation Ltd. vs. Maharashtra Genl. Kamgar Union & Ors., (1999) 1 SCC 626, and it was held that a delinquent employee has no right to be represented by an advocate in the departmental proceedings and that if a right to be represented by a co\u00adworkman is given to him, the departmental proceedings would not be bad only for the reason that the assistance of an advocate was not provided to him.\u201d 6.4. In the case of Crescent Dyes and Chemicals Ltd. (supra), it is observed and held that in the departmental proceedings right to be represented through counsel or agent can be restricted, controlled or regulated by statute, rules, regulations or Standing Orders. A delinquent has no right to be represented through counsel or agent unless the law specifically confers such a right. The requirement of the rule of natural justice insofar as the delinquent's right of hearing is concerned, cannot and does not extend to a right to be represented through counsel or agent. In the case before this Court, the delinquent's right to representation was regulated by the Standing Orders which permitted a clerk or a workman working with him in the same department to represent him and said right stood expanded permitting representation through an officer, staff\u00admember or a member of the Union, on being authorised by the State Government. Holding that the same is permissible and cannot be said to be in violation of principles of natural justice, it is observed that the object and purpose of such provisions are to ensure that the domestic enquiry is completed with despatch and is not prolonged endlessly; secondly, when the person defending the delinquent is from the department or establishment in which the delinquent is working he would be well conversant with the working of that department and the relevant rules and would, therefore, be able to render satisfactory service to the delinquent. In the present case also clause 8 permits representation through serving officials / employee from the Bank. 6.5. A similar view has been expressed by this Court in the case of Bharat Petroleum Corporation Limited (supra) as well as in the case of National Sees Corporation Limited (supra). 6.6. In the case of Indian Overseas Bank (supra), it is observed and held that law does not concede an absolute right of representation to an employee in domestic enquiries as part of his right to be heard and that there is no right to representation by somebody else unless the rules or regulation and standing orders, specifically recognize such a right and provide for such representation. 7.0. Applying law laid down by this Court in the aforesaid decisions to the facts of the case on hand, the respondent employee / respondent delinquent has no absolute right to avail the services by ex\u00ademployee of the Bank as his DR in the departmental proceedings. It is true that Regulation 44 puts specific restriction on engagement of a legal practitioner and it provides that for the purpose of an enquiry under Regulation, 2010, the Officer or Employee shall not engage a legal practitioner without prior permission of the competent authority. Therefore, even availing the services of legal practitioner is permissible with the leave of the competent authority. However, Regulation does not specifically provides that an employee can avail the services of any outsider and / or ex\u00ad employee of the Bank as DR. Therefore, Regulation, 2010 neither restricts nor permits availing the services of any outsider and / or ex\u00ademployee of the Bank as DR and to that extent Regulation is silent. If the reasoning of the High Court is considered, the High Court is of the opinion that as there is no complete or absolute bar even on engaging a lawyer, it is difficult to accept that a retired employee of the Bank cannot be engaged to represent a delinquent officer in the departmental inquiry. However, the High Court has not appreciated the effect of the Handbook. As per Clause 8 of the Handbook Procedure which has been approved by the Board of Directors and it is applicable to all the employees of the Bank and Clause 8 is with respect to the defence representative, it specifically provides that DR should be serving official / employee from the Bank. The said Handbook Procedure which has been approved by the Board of Directors of the Bank is binding to all the employees of the Bank. The High Court has considered Regulation 44 of the Regulation, 2010, however has not considered clause 8 of the Handbook Procedure on the ground that the same cannot be said to be supplementary. However, we are of the opinion that Handbook Procedure can be said to be supplementary. The same cannot be said to be in conflict with the Regulation 44 of Regulation, 2010. As observed herein above, neither Regulation 44 permits nor restricts engagement of an ex\u00ademployee of the Bank to be DR. Therefore, Clause 8.2 cannot be said to be in conflict with the provisions of Regulation, 2010. Provisions of Regulation, 2010 and the provisions of Handbook Procedure are required to be read harmoniously, the result can be achieved without any violation of any of the provisions of Regulation, 2010 and the Handbook Procedure. The objects of Regulation 44 of Regulation, 2010 and Clause 8 of the Handbook Procedure seem to be to avoid any outsider including legal representative and / or even ex\u00ademployee of the Bank. At the cost of repetition, it is observed that there is no absolute right in favour of the delinquent officer\u2019s to be represented in the departmental proceedings through the agent of his choice and the same can be restricted by the employer. 8.0. As per the Bank there is a justification also to permit the delinquent officer to be represented in the departmental proceedings through serving official / employee from the Bank only. The Bank has justified its action of not permitting ex\u00ademployee of the Bank as DR and according to the Bank, the ex\u00ademployee who themselves may have been subject of a disciplinary enquiry/ chargesheet / dismissed from service; the ex\u00ademployee might be a part of vigilance or audit sections who come across a lot of information of confidential nature and therefore, if they are allowed to be DR in the departmental proceedings, which would result in grave injustice; the solemn nature of proceedings is taken away and would result in issues of orderliness as well as decorum when a disgruntled ex\u00ademployee is enabled to act as defence representative; they may adopt delay tactics in departmental enquiry and may not permit completion of department enquiry within six months as mandated by the CVC Circular and as per Vigilance Handbook adopted by the Bank. For all the aforesaid reasons not permitting the delinquent officer to be represented through ex\u00ademployee of the Bank in the departmental enquiry cannot be said to be in any way in breach of principles of natural justice and / or it violates any of the rights of the delinquent officer. As per settled proposition of law and as observed herein above, in decisions referred to herein above, the only requirement is that delinquent officer must be given fair opportunity to represent his case and that there is no absolute right in his favour to be represented through the agent of his choice. However, at the same time, if the charge is severe and complex nature, then request to be represented through a counsel can be considered keeping in mind Regulation 44 of Regulation, 2010 and if in a particular case, the same is denied, that can be ground to challenge the ultimate outcome of the departmental enquiry. However, as a matter of right in each and every case, irrespective of whether charges is severe and complex nature or not, the employee as a matter of right cannot pray that he may be permitted to represent through the agent of his choice. 9.0. Now so far as reliance placed upon the decision of the Allahabad High Court in the case of Rakesh Singh (supra) by the learned counsel for the respondent is concerned, it is required to be noted that at the time when the High Court decided the matter no such Clause 8 of the Handbook Procedure was in force. Handbook Procedure has been adopted by the Board of Directors in its meeting held on 15.3.2019. Therefore, the said decision shall not be applicable to the facts of the case on hand. 10. In view of the above and for the reasons stated above, the High Court has committed an error in permitting respondent delinquent officer to be represented in the departmental enquiry through ex\u00ademployee of the Bank. The view taken by the learned Single Judge confirmed by the Division Bench is unsustainable. Accordingly, present appeal is allowed and the impugned judgment and order passed by the learned Single Judge confirmed by the Division Bench permitting the respondent delinquent officer to be represented in the departmental proceedings through ex\u00ademployee of the Bank is hereby quashed and set aside. Present appeal is accordingly allowed. In the facts and circumstances of the case, there shall be no order as to costs. \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026J. (M. R. SHAH) \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026J. (SANJIV KHANNA) New Delhi, January, 04 2022",
        "129202572": "CA 5970/2021 1 Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION Civil Appeal No 5970 of 2021 (Arising out of SLP (C) No 699 of 2019) Mr Rajeev Nohwar Appellant Versus Chief Controlling Revenue Authority Respondent(s) Maharashtra State, Pune and Others JUDGMENT Dr Dhananjaya Y Chandrachud, J 1 Leave granted. 2 A citizen\u201fs claim for the refund of stamp duty has found a winding path to this court. The appellant booked a residential apartment. There arose a dispute with the builder. It led to a consumer complaint. The litigation consumed time. The appellant was permitted to opt for a refund of the price. The claim for refund of stamp duty has been rejected by the revenue arm of the state on the ground that more than six months have elapsed. The Bombay High Court, agreeing with Signature Not Verified Digitally signed by Chetan Kumar the decision found the claim to be stale. A simple claim for refund leads us to Date: 2021.10.05 17:04:04 IST Reason: CA 5970/2021 the complexities of a revenue sourcing law. 3 This appeal arises from a judgment dated 22 November 2018 of a Single Judge of the High Court of Judicature at Bombay. The Deputy Inspector General of Registration and Deputy Controller of Stamps, Pune rejected an application for refund of stamp duty filed by the appellant. The order of the authority was challenged in the exercise of the jurisdiction of the High Court under Article 226 of the Constitution. The petition has been dismissed. 4 On 24 April 2014, the appellant booked a residential flat, being Unit No 2001 admeasuring 1660 sq ft in Tower No 24 of a construction project called Lodha Belmondo in Pune for a consideration of Rs 1,68,88,095. The appellant initially paid an amount of Rs 33,91,795 by July 2014 representing 19.9% of the agreed sale consideration, following which a confirmatory email was issued. This was followed by a letter of allotment dated 15 July 2014. On 14 August 2014, the appellant paid an amount of Rs 1,58,28,221 out of the agreed consideration. In order to facilitate the execution of a conveyance, the appellant purchased an e-SBTR stamp paper through a government challan bearing MTR GRN No MH0023603832014155 for a total amount of Rs 8,44,500 from the IDBI bank, Aundh, Pune for the execution of the agreement to sell. 5 Disputes arose between the appellant and the developer which led to the appellant instituting a consumer complaint before the National Consumer Disputes Redressal Commission1. During the pendency of the complaint, an 1 \u201cNCDRC\u201d CA 5970/2021 interim order dated 25 September 2014 restrained the developer from creating third party interests in the flat. Eventually by an order dated 6 May 2016, the complaint was allowed. The appellant was given the option to either execute the agreement with the developer, in which event the developer would pay compensation in the amount of Rs 10 lakhs, or in the alternative, if the appellant was not willing to execute an agreement, the developer was directed to refund the entire consideration together with interest at the rate of 12% per annum from the date of receipt of each installment until the date of refund along with compensation of Rs.10,00,000. The appellant exercised the option of seeking a refund of consideration together with interest. 6 The developer issued a cheque on 11 July 2016 for the refund of the consideration in terms of the order of the NCDRC. The appellant thereupon applied on 16 July 2016 for refund of the stamp duty of Rs 8,44,500 to the Collector of Stamps. By a communication dated 5 August 2016, the Collector of Stamps forwarded the file to the Deputy Inspector General of Registration with a recommendation that the refund should be denied on the ground that the appellant had not applied for refund within six months. By an order dated 27 September 2016, the Deputy Inspector General of Registration rejected the application for refund of stamp duty on the ground that the application for refund was not made within six months as mandated by Section 48(3) of the Maharashtra Stamp Act 1958. The appellant filed an appeal before the Chief Controlling Revenue Authority under Section 53(1A) of the Maharashtra Stamp Act 1958. The appeal was dismissed on 2 April 2018 on the same ground. The CA 5970/2021 appellant moved the High Court of Judicature at Bombay in a writ petition under Article 226 of the Constitution challenging the orders dated 27 September 2016 and 2 April 2018 and for seeking an order directing the refund of the stamp duty paid. 7 The High Court by its judgment dated 22 November 2018 dismissed the petition, affirming the view of the revenue authorities that the application for refund was barred by limitation, not having been preferred within a period of six months from the date of the purchase of the e-stamp. The High Court rejected the argument that the six month limitation period under Section 48(3) would not be applicable since the appellant\u201fs case falls under Section 52A of the Act. It was observed that Sections 47, 48, 52 and 52A of the Act will have to be interpreted harmoniously, and an application under Section 52A will also have to be made within six months from the date of purchase of the stamps. The matter has accordingly travelled to this Court. Notice was issued on 18 January 2019. 8 Mr Varun Singh, counsel appearing on behalf of the appellant submits that in order to appreciate the circumstances in which the application for refund was filed, it is necessary to bear in mind the following events: (ii) Following the dispute with the developer, the appellant moved the NCDRC which initially granted an interim stay on the creation of third party rights on 25 September 2014 and CA 5970/2021 eventually allowed the complaint on 6 May 2016; and (iii) The application for refund was moved on 16 July 2016. 9 In this backdrop, counsel for the appellant submitted that for the following five reasons, the application for refund was instituted within a reasonable period and cannot be held to be barred either on laches or limitation: (i) The dispute in relation to the agreement with the developer was pending adjudication before the NCDRC; (ii) The appellant had paid the stamp duty and purchased the e- stamp paper bona fide in order to facilitate the completion of the transaction pertaining to the residential flat; (iii) In order to demonstrate the readiness and willingness of the appellant before the NCDRC, it was necessary for the appellant to continue to retain the e-stamp paper pending the disposal of the proceedings; (iv) The e-stamp paper, as a matter of fact, would have been used if the adjudication by the NCDRC had resulted in a resolution of the dispute by removing some of the offending provisions insisted by the developer; and (v) Following the order of the NCDRC, the appellant exercised the CA 5970/2021 option to seek a refund in terms of a judicial order of the competent forum. 10 In this backdrop, counsel has relied on the provisions of Sections 47, 48 and 52A of the Maharashtra Stamp Act 1958. It has been submitted that the provisions of Section 48(3) which prescribe a period of six months from the date of purchase of stamp for filing an application for refund, would have no application where the case is not covered by the provisions of Section 47. In such a situation, it was urged that Section 52A would enure to the benefit of the appellant. In this context, counsel for the appellant relied on a judgment of a two-Judge Bench of this Court in Committee-GFIL vs Libra Buildtech Private Limited and Others.2 11 Opposing the submissions of the appellant, Mr Rahul Chitnis, Chief Standing Counsel for the State of Maharashtra has urged that: (i) The application filed by the appellant was specifically under the provisions of Section 47 of the Maharashtra Stamp Act 1958; (ii) Once the appellant has conceded that the application was filed with reference to Section 47, the period of limitation prescribed in Section 48 would squarely stand attracted; (iii) As a matter of fact, the application for refund of stamp duty would be relatable to the provisions of Section 47(a) of the Act; and 2 (2015) 16 SCC 31 CA 5970/2021 (iv) In these circumstances, the appellate authority was justified in coming to the conclusion that the application for refund was barred by limitation. The rival submissions fall for our analysis. 12 Chapter 5 of the Maharashtra Stamp Act 1958 is titled \u201callowances for stamps in certain cases\u201d. Section 47 which deals with \u201callowance for spoiled stamps\u201d provides as follows: \u201c47. Allowance for spoiled stamps.- Subject to such rules as may be made by the State Government as to the evidence to be required, or the inquiry to be made, the Collector may on application, made within the period prescribed in section 48, and if he is satisfied as to the facts, make allowance for impressed stamps spoiled in the cases hereinafter mentioned, namely: (a) the stamp on any paper inadvertently and undesignedly spoiled, obliterated or by error in writing or any other means rendered unfit for the purpose intended before any instrument written thereon is executed by any person; (b) the stamp on any document which is written out wholly or in part, but which is not signed or executed by any party thereto; (c) the stamp used for an instrument executed by any party thereto which- (1) has been afterwards found by the party to be absolutely void in law from the beginning; (1A) has been afterwards found by the Court, to be absolutely void from the beginning under section 31 of the Specific Relief Act, 1963; (2) has been afterwards found unfit by reason of any error or CA 5970/2021 mistake therein, for the purpose originally intended; (3) by reason of the death of any person by whom it is necessary that it should be executed, without having executed the same, or of the refusal of any such person to execute the same, cannot be completed so as to effect the intended transaction in the form proposed; (4) for want of the execution thereof by some material party, and his inability or refusal to sign the same, is in fact incomplete and insufficient for the purpose for which it was intended; (5) by reason of the refusal of any person to act under the same, or to advance any money intended to be thereby secured, or by the refusal or non-acceptance of any office thereby granted, totally fails of the intended purpose; (6) becomes useless in consequence of the transaction intended to be thereby effected by some other instrument between the same parties and bearing a stamp of not less value; (7) is deficient in value and the transaction intended to be thereby effected had been effected by some other instrument between the same parties and bearing a stamp of not less value; (8) is inadvertently and undesignedly spoiled, and in lieu whereof another instrument made between the same parties and for the same purpose is executed and duly stamped: Provided that, in the case of an executed instrument, except that falling under sub-clause (lA), no legal proceeding has been commenced in which the instrument could or would have been given or offered in evidence and that the instrument is given up to be cancelled, or has been already given up to the Court to be cancelled. Explanation.- The certificate of the Collector under section 32 that the full duty with which an instrument is chargeable has been paid is an impressed stamp within the meaning of this section.\u201d (emphasis supplied) CA 5970/2021 13 Section 47 is subject to the rules which are made by the State government in regard to the evidence to be required or enquiry to be made. The provision stipulates that the Collector may make allowance, on an application seeking an allowance, for impressed stamps spoiled in the cases which are set out in clauses (a) to (c). The opening words of Section 47 also indicate that the application under Section 47 has to be made within the period which is prescribed by Section 48. The prefatory words of Section 47 advert to \u201cimpressed stamps spoiled in the cases\u201d which are contained in clauses (a) to (c). Clause (a) deals with a situation where the stamp on any paper is inadvertently or undesignedly spoiled, obliterated or rendered unfit for the purpose intended either by an error in writing or by any other means before the instrument written on it is executed by any person. The object of clause (a) is to ensure that an allowance is made for impressed stamps which are spoiled inadvertently or unintentionally or where the stamp paper is rendered unfit for the purpose for which it was intended. That is why the expressions which have been used in clause (a) are spoiled, obliterated, or rendered unfit for the purpose. 14 Section 47 covers three classes of cases within it: (i) spoiled; (ii) obliterated; and (iii) unfit for the purpose by an error in writing or \u201eany other means\u201f. It is contended by the State that the case of the appellant would fall within the purview of the third category since it was rendered unfit for the purpose, i.e., the purpose of purchase of the property. This submission thus places reliance on the expression \u2018purpose\u2019 used in the provision. The submission does not accord with a plain reading of the provision. The expression \u201cany other means\u201d must be read CA 5970/2021 in the context of the words which immediately precede it, namely, \u201cerror in writing\u201d. The expression \u201cby any other means\u201d would indicate that the legislature intended to refer to defacement of a stamp paper in any manner analogous to an error in writing the instrument on the stamp paper. \u201cAny other means\u201d refers to any other modality by which the stamp paper is rendered unfit for the purpose for which it was purchased. Moreover, the prefatory words in Section 47 state that the collector must be satisfied that the stamp is \u201espoiled\u201f. Clauses (a) to (c) lay down the cases that are covered within the ambit of the expression \u201espoiled stamps\u201f. The emphasis of Section 47 is not on the purpose but on unfit stamps. Therefore, a case where the stamp has not been utilized at all because it is not needed subsequent to the purchase will not fall within the purview of Section 47. Only those cases where the stamp is unfit for the purpose by an error in writing or any other means would be covered by the provision. It is not the case of the appellant that the stamp paper has been spoiled or obliterated or rendered unfit for the purpose for which it was required. In the present case, it is common ground that the stamp paper is not spoiled but the purpose for which the stamp was purchased has become redundant in view of the judgment of the NCDRC. Therefore, there would be no occasion to apply the provisions of clause (a) of Section 47. 15 Clause (c) of Section 47 begins with the expression \u201cstamp used for an instrument executed by any party thereto\u201d and is followed by eight sub clauses. In other words, clause (c) of Section 47 applies only where a stamp paper has been used for an instrument which has been executed by one of the parties to CA 5970/2021 the instrument. That is why, for instance sub clause (2) refers to the instrument being subsequently found unfit either by reason of an error or mistake for the purpose for which it was originally intended. Sub clause (4) adverts to a situation where the instrument has not been executed by a material party and by his inability or refusal to sign it renders the instrument incomplete and insufficient for the purpose for which it was intended. Clause (c) of Section 47 has no application to the facts of the present case since it is common ground that the stamp was not used for an instrument already executed by any party thereto. 16 Now it is in this backdrop that it becomes necessary to advert to Section 48 of the Act. Section 48 provides as follows: \u201c48. Application for relief under section 47 when to be made. - The application for relief under section 47 shall be made within the following period, that is to say.- (1) in the cases mentioned in clause (c) (5), within six months of the date of the instruments: Provided that where an Agreement to sell immovable property, on which stamp duty is paid under Article 25 of the Schedule I, is presented for registration under the provisions of the Registration Act, 1908 and if the seller refuses to deliver possession of the immovable property which is the subject matter of such agreement the application may be made within two years of the date of the instrument [or where such agreement is cancelled by a registered cancellation deed on the grounds of, dispute regarding the premises concerned, inadequate finance, financial dispute in terms of agreed consideration, or afterwards found to be illegal construction or suppression of any other material fact, the application may be made within two years from the date of such registered cancellation deed; (2) in the case when for unavoidable circumstances any instrument for which another instrument has been substituted cannot be given up to be cancelled, the application may be CA 5970/2021 made within six months after the date of execution of the substituted instrument. (3) in any other case, within six months from the date of purchase of stamp.\u201d 17 Section 48 begins with the statement that the application for relief under Section 47 shall be made within the periods which are indicated in clauses (1), (2) and (3). In other words, the periods of limitation which are prescribed in clauses (1), (2) and (3) are in respect of those cases which are governed by Section 47. Clause (1) stipulates that for cases governed by clause (c)(5), the period within which the application has to be filed will be six months of the date of the instrument. Clause (2) specifies that in case where for unavoidable circumstances, any instrument for which another instrument has been substituted cannot be given up to be cancelled, in such an event, the application may be made within six months after the date of execution of the substituting instrument. Clause (3) which is a residuary provision provides for a limitation of six months from the date of the purchase of stamp. 18 The revenue authorities rejected the application filed by the appellant on the ground that the application was not filed within six months from the date of the purchase of the stamp paper, treating the case to fall within the residuary provision in Section 48 of the Act. This view has been accepted by the Single Judge of the Bombay High Court. What this view misses is that Section 48 in its entirety applies only to those cases where the application for relief is governed CA 5970/2021 by Section 47. If the application for refund is not with reference to the provisions of Section 47, the period of limitation in Section 48 clearly has no application. Since the application of the appellant does not fall within the purview of any of the clauses in Section 47, the 6 month limitation period prescribed in Section 48 would not be applicable to the application for allowance filed by the appellant. 19 Having observed that the application of the appellant for allowance is not covered by the Section 47, it is imperative to determine if it falls within the purview of any other provisions of the Act. Section 49 provides that allowance can be made without any limit of time for stamp papers that are used as printed forms of instruments by any banker or company, if the forms are not required by the banks or the companies. Thus, the application of the appellant is not covered by section 49. Section 50 states that allowance for misused stamps can be made. The provision brings within the purview of the term \u201emisused stamps\u201f, the stamps of greater value than required or stamps of description other than that prescribed by any rules or stamps that are useless since the instrument is written in contravention of the provisions or where a stamp has been used when the instrument is not charged with stamp duty. Section 50 only covers those cases where inadvertent mistakes are made in the stamp paper. Therefore, the case of the appellant is not covered by Section 50 since there is no mistake in the e-stamp, be it with regard to the value or description. Section 51 lays down the procedure for seeking allowance for cases that fall under Section 47, 49 and 50 and is thus of no application to the appellant\u201fs claim. 20 Now it is important to refer to Section 52 of the Act which provides as follows: CA 5970/2021 \u201c52. Allowance for stamps not required for use: When any person is possessed of a stamp or stamps which have not been, spoiled or rendered unfit or useless for the purpose intended, but for which he has no immediate use, the Collector shall repay to such person the value of such stamp or stamps in money, deducting [thereform such amount as may be prescribed by rules made in this behalf by the State Government] upon such person delivering up the same to be cancelled, and proving to the Collector's satisfaction,\u2014 (a) that such stamp or stamps were purchased by such person with a bona fide intention to use them ; and (b) that he has paid the full price thereof ; and (c) that they were so purchased within the period of 1[six months] next preceding the date on which they were so delivered : Provided that, where the person is a licensed vendor of stamp, the Collector may, if he thinks fit, make the repayment of the sum actually paid by the vendor without any such deduction as aforesaid.\u201d (emphasis supplied) Section 52 deals with provision of allowance in case of stamps that are not required for use. There are two kinds of stamps that are not required for use. The first is where the stamp is spoiled, as covered by Section 47 of the Act. The second is where the stamp is not spoiled but the stamp is not needed since the purchaser has no use of it. Section 52 specifically excludes the first of category since it is already covered by Section 47. The provision only applies to the class in the second category. Thus, Section 52 covers stamps that are not spoiled but which are of no use to the applicant by the occurrence of any subsequent event that renders the purpose of purchase of stamp void or nugatory. For the application of Section 52A, the applicant must have purchased the stamp on the payment of full price, with a bona fide intention to use it. However, within six months from the purchase of the stamp, the purpose of the purchase has not CA 5970/2021 been fulfilled. Such a situation can arise in multiple circumstances. For example, a person may have obtained a stamp paper for purchasing a building. However, before the agreement of sale could be executed, the building turns to shambles after an earthquake hits the area. In such a case, the stamp paper has no use. This may also cover a case where the seller has taken back his consent to sell the property after the purchase of the stamp paper. In such cases, the stamp purchased will not have any use since the purpose for which it was purchased could not materialize. 21 It could be argued that the use of the words, \u201cfor which he has no immediate use\u201d in Section 52 would only covers cases where the purpose for the purchase of the stamp is still valid but the execution of the purpose if delayed and not \u201eimmediate\u201f. Such an interpretation, however, is erroneous in view of the holistic reading of the provision. The use of the phrase \u201eimmediate\u201f must be read in the context of the limitation period prescribed by the provision. Since a six month limitation period has been imposed in Section 52 for the cases that fall within its purview, the use of the phrase \u201eno immediate use\u201f should be interpreted to mean either the permanent abandonment of the purpose or a delay (of more than six months from the purchase of the stamp) in the execution of the purpose. 22 However, Section 52 would only apply to those cases where the applicant had knowledge that the stamp purchased was not be required for use within six months from the date of purchase. The provision cannot be arbitrarily applied to cases where the purchaser of the stamp had no knowledge that the stamp CA 5970/2021 would not be required for use within six months from the purchase of the stamp. In the instant case, the appellant had no knowledge of the fact that the stamp was not needed within six months from the purchase of it. He was in a bona fide contest over his rights with the builder. Therefore, the case of the appellant would not fall under Section 52 of the Act as well. 23 It has been contended by the counsel for the appellant that the case of the appellant falls within the purview of Section 52A of the Act. Now, it becomes necessary to advert to the provisions of Section 52A which provides as follows: \u201c52A. Allowance for duty.- (1) Notwithstanding anything contained in sections 47, 50, 51 and 52, when payment of duty is made by stamps or in cash as provided for under sub-section (3) of section 10 or section 10A or section 108, and when the amount of duty paid exceeds rupees one lakh, the concerned Collector shall not make allowance for the stamps, or the cash amount paid under the Challans, which are spoilt or misused or not required for use, but shall, after making necessary enquiries, forward the application with his remarks thereon to,- (a) the Additional Controller of stamps for the cases handled by the Collectors working in the Mumbai City District and Mumbai Suburban District; and (b) the concerned Deputy Inspector General of Registration and Deputy Controller of Stamps of the division for the cases handled by the Collectors other than those mentioned in clause (a). (2) The Additional Controller of Stamps or, the concerned Deputy Inspector General of Registration and Deputy Controller of Stamps of the division, as the case, may, be, on receiving such application consider the same and decide whether such allowance shall be given or not, and accordingly shall, grant the same, if the amount of allowance does not exceed rupees ten lakh, and if, it exceeds rupees ten lakh, shall submit such application, with his remarks thereon to the Chief Controlling Revenue Authority for decision. CA 5970/2021 (3) The Chief Controlling Revenue Authority on receiving such application shall decide on merit whether such allowance shall be given or not, and pass such order thereon as he thinks just and proper, which shall be final and shall not be questioned in any court or before any authority.\u201d 24 Section 52A is prefaced with a non obstante clause which operates notwithstanding anything contained in Sections 47, 50, 51 and 52. Section 52A stipulates that when the amount of stamp duty paid exceeds Rs 5 lakhs, the concerned Collector shall not make an allowance for the stamps or the cash amount paid under the challans but shall after making necessary enquiries forward the application with his remarks to the Additional Collector of Stamps (for cases handled by the Collectors working in the Mumbai City District and Mumbai Sub-Urban Districts) and the concerned Deputy Inspector General of Registration and Deputy Controlling of Stamps for cases in other regions. 25 In view of Section 52A(2) of the Act, the Additional Collector of Stamps or the DIG as the case may be, on assessing the application has to decide whether allowance should be given or not and shall grant it if the amount of allowance does not exceed Rs 20 lakhs. If the amount exceeds Rs 20 lakhs, the application has to be submitted to the Chief Controlling Revenue Authority. The Chief Controlling Revenue Authority on receiving the application is required to decide on merits whether or not the allowance should be given. The provisions of Section 52A were substituted with effect from 1 May 2006 by Maharashtra Act 12 of 2006. By an Amendment, the amount of Rs 5 lakhs which has been specified in sub-Section (1) was enhanced from Rs 1 lakh by Maharashtra Act 20 CA 5970/2021 of 2015 with effect from 24 April 2015. Likewise in sub-Section (2), the amount of Rs 20 lakhs stands enhanced from the earlier amount of Rs 10 lakhs by the same amending provision. 26 The provisions of Section 52A as noticed above have overriding force and effect, inter alia, on the provisions of Sections 47, 50, 51 and 52. It is pertinent to note that the non obstante clause does not apply to Sections 48 and 49 of the Act. While Section 48 is a limitation clause applicable to cases that are covered by Section 47, Section 49 applies to a Corporation where no limitation period has been prescribed. Section 52A can be applied to the appellant\u201fs case only if the provision is interpreted to override the limitation period laid down in the preceding provisions and if it is regarded as a residual substantive provision that would cover all cases that are not covered by any of the provisions. We will now consider the validity of such an interpretation. 27 If Section 52A was enacted with the intent to override the limitation prescribed by Sections 50, 51 and 52 then Section 48 ought to have also been included specifically since Section 48 is the limitation provision applicable to Section 47. Section 48 is not incorporated in the non-obstante provision of section 52 A. This is hence intrinsic material to indicate that the purpose of the non-obstante clause in Section 52A was to override the jurisdiction of the adjudicating authority (i.e the Collector) under Sections 47, 50, 51 and 52 to decide the claims for allowances. Section 52A specifically divests the power of the Collector to decide the claims of allowance falling within those provisions and vests the power to other authorities if the payment of stamp duty exceeds Rupees five CA 5970/2021 lakhs. In those cases, though the application is to be made to the Collector, he will have no adjudicatory capacity. The Collector must forward the application to the concerned authority as mentioned in Section 52A along with remarks and such authority would have the power to decide the claim. The interpretation that Section 52A only overrides the authority of the Collector in adjudicating the case is evident since the provision does not override Section 49 where the adjudicating officer is the Chief Controlling Revenue Authority. In such a case, Section 52A cannot be considered as a residual clause by applying it to classes of cases that do not fall within the purview of any other provisions. A contrary interpretation would create an artificial class based on economic capacity, as cases where the stamp duty paid exceeds Rupees five lakhs will alone be adjudicated without application of any limitation period as a residual case, while cases falling within the same class but where stamp duty paid is less than Rupees five lakhs cannot take recourse to the provision. It is an established principle of interpretation that an interpretation that furthers the constitutionality of a provision will have to be undertaken. An interpretation which leads to an invidious discrimination must be eschewed. Thus, the intendment of Section 52A was neither to cover the applications that are not brought under any of the preceding substantive clauses nor to override the limitation clauses. 28 Evidently, and for the reasons that we have indicated above, the application filed by the appellant did not fall within the ambit of Sections 47, 52 and 52A. It is true that the application for refund was titled with reference to the provisions of Section 47. But, it is well settled that a reference of a wrong statutory provision, CA 5970/2021 cannot oust the citizen of an entitlement to refund which otherwise follows in terms of a statutory provision. 29 In the present case, the stamp paper was purchased bona fide in view of the agreement to sell which was to be executed by the appellant with the developer. There was a dispute with the developer which led to the institution of the proceedings before the NCDRC. There was nothing untoward in the conduct of the appellant and certainly no unreasonable delay on the part of the appellant in awaiting the outcome of the proceedings. The NCDRC allowed the complaint giving the option to the appellant of either going ahead with the agreement along with an award of compensation or, in the alternative, to seek a refund with interest. The appellant having exercised the latter option applied within two months from the order of the NCDRC for the grant of refund. The conduct of the appellant, therefore, cannot be held to be unreasonable nor was there any intentional or wanton delay on the part of the appellant in applying for a refund of stamp duty. Such an application must be filed within a reasonable period. 30 In Committee-GFIL (supra), a two-judge Bench of this Court was dealing with the issue of limitation prescribed in the Indian Stamp Act 1899. In this case, an auction sale of immovable properties was held by a committee constituted by this Court. Successful bidders deposited with the committee, the entire sale consideration along with the stamp duty. However, the transaction failed due to reasons beyond the control of the parties. The Court cancelled the transaction CA 5970/2021 and directed the committee to refund the sale consideration with interest and permitted the purchasers to approach the State Government for refund of the stamp duty. The applications of the auction-purchasers seeking refund of stamp duty was rejected on the ground that the applications were time-barred. An application against the rejection of the refund applications was filed before this Court. This Court allowed the application on three grounds: (i) the transaction which was Court-monitored, could not be fulfilled for reasons beyond the control of the auction-purchasers. No act of the Court should prejudice a person; (ii) in view of the principle of restitution embodied in Section 65 of the Contract Act, any advantage received by a person under a void contract or a contract that becomes void is bound to be restored; and (iii) in light of equity and justice, the six months limitation period prescribed in Section 50 of the Indian Stamp Act 1899 must be read to mean six months from the date of the order of this Court. 31 We are conscious of the fact that as a general rule of law, the right to refund is a statutory creation. A refund can be sought in terms envisaged by statute. As discussed above, the case of the appellant is not specifically barred by any substantive provision. It is an established principle that this Court while exercising its power under Article 142 of Constitution must not ignore and override statutory provisions but must rather take note of the express statutory provisions and exercise its discretion with caution.3 Therefore, if a statute prescribes a limitation period, this Court must be slow to interfere with the delay under Article 142. 3AR Anthulay v. RS Nayak, (1988) 2 SCC 602; Union Carbide Corporation v. Union of India, (1991) 4 SCC 584; Supreme Court Bar Association v. Union of India, (1998) 4 SCC 409. CA 5970/2021 However, in the case of an eventuality such as the instant case where the facts of the case are not covered by the statute, this Court under Article 142 will have the power to do complete justice by condoning the delay. We are of the view that since the delay in filling the application for refund in the instant case was due to the prolonged proceedings before the NCDRC, the application cannot be rejected on the ground of delay. A litigant has no control over judicial delays. A rejection of the application for refund would violate equity, justice and fairness where the applicant is made to suffer the brunt of judicial delay. Therefore, this is a fit case for the exercise of the power under Article 142 of the Constitution. 32 For the above reasons, we allow the appeal and set aside the impugned judgment and order of the learned Single Judge of the Bombay High Court dated 22 November 2018. As a consequence, we direct that the appellant would be entitled to a refund of the stamp duty which was paid at the time of the purchase of the e-stamp paper, conditional on the appellant returning the e-stamp paper to the Collector of Stamps, Mumbai. The refund shall be processed within a period of one month of the delivery of the e-stamp paper to the Collector. The appellant would be entitled to interest at the rate of 6% per annum from 16 July 2016 until the date of refund. In the circumstances of the case, there shall be no order as to costs. CA 5970/2021 33 Pending applications, if any, stand disposed of. .........\u2026.....\u2026.......\u2026\u2026\u2026\u2026\u2026\u2026........J. [Dr Dhananjaya Y Chandrachud] \u2026.....\u2026.....\u2026.......\u2026\u2026\u2026\u2026\u2026\u2026........J. [B V Nagarathna] New Delhi; September 24, 2021 CKB",
        "184940": "REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 389 OF 2008 [Arising out of Special Leave Petition (Civil) No. 15612 of 2008] ACADEMY OF GENERAL EDU., MANIPAL & ANR. ... APPELLANTS Versus B. MALINI MALLYA ... RESPONDENT JUDGMENT S.B. SINHA, J. 1. Leave granted. 2. `Yakshagana' is a form of ballet dance. It has its own heritage. Indisputably, Dr. Kota Shivarama Karanth (for short, \"Dr. Karanth\"), a Jnanapeeth awardee, who was a Novelist, Play Writer, Essayist, Encyclopediationist, Cultural Anthropologist, Artist, Writer of Science, Environmentalist. He developed a new form of `Yakshagana'. He was a Director of the appellant - institute. On or about 18.6.1994, he executed a Will in favour of the respondent. Dr. Karanth expired on 9.12.1997. Yakshagana Ballet dance as developed by Dr. Karanth was performed in New Delhi on or about 18.9.2001. Respondent filed a suit for declaration, injunction and damages alleging violation of the copyright in respect of the said dance vested in her in terms of the said Will stating that Dr. Karanth developed a new distinctive dance, drama troop or theatrical system which was named by him as `Yaksha Ranga' which in his own words mean \"creative extension of traditional Yakshagana\" and, thus, the appellants infringed the copyright thereof by performing the same at New Delhi without obtaining her prior permission. It was stated that Dr. Karanth had composed seven verses or prasangas for staging Yaksharanga Ballet apart from bringing in changes in the traditional form thereof on its relevant aspects, namely, Raga, Tala, Scenic arrangement, Costumes etc. These prasangas are: (i) Bhishma Vijaya; (ii) Nala Damayanthi; (iii) Kanakangi or Kanakangi Kalyana; (iv) Abhimanyu or Abhimanyu Vada; (v) Chitrangadha or Babruvahana Kalaga; (vi) Panchavati; and (vii) Ganga Charitha. 3. Plaintiff - respondent admittedly claimed copyright in respect of `literary and artistic works' in her favour in terms of clauses 11 and 12 of the said Will dated 18.6.1994, which read as under: \"11. Since I left the house `suhasa' I have been living in a specially built house \"Manasa\" of Smt. Malini Mallya, who has built it with borrowed money at her cost. She had joined my service as Copyist and later, she secured an employment in Life Insurance Corporation of India. Ever since 1974 till now in my old age she has been serving me with exemplary devotion and sincerity. And in this occasion I must also acknowledge with gratitude that she diligently cared and nursed my wife Leela Karanth during her prolonged illness till her last day. And she has cared and looked after me also during my illness which at times had been quite serious, enfeebling me for long period. In recognition of her devotion and sincere affection towards me in 1986 I have dedicated one of my novels namely, \"Antida Aparanji\" to her. I have also placed on record her invaluable services to me in my Memoirs, \"Hunchu Mansina Hathu Mukhagalu\" 1991 Edition. In my opinion, very long enduring and a signal service she has done to me and to my literary works is, in writing a bibliography of all my books- a highly meritorious and scholarly work involving so much of pains taking research, that it has been acclaimed and rated as the first of its kind in Kannada and highly appreciated by Critics and Scholars. Apart from this, she has collected and edited all my stray writings from 1924 onwards upto date in eight Sumptuous volumes which are being published by Mangalore University. This work also has brought her deserving fame and appreciation of Scholars. Such painstaking service in this direction has brought to light several of my hitherto untraced, forgotten and unknown writings and thereby giving them extended or renewed lease of life. For all these services, I hereby declare that after my death copyrights in respect of all my literary works shall vest with Smt. Malini Mallya and she alone shall be entitled to receive royalties of all my books and she shall be entitled to print, publish and republish and market the same. Whatever she may earn thereby shall be her exclusive income and property. No one else shall have any right or claims for the same. 12. From time to time I have distributed among my children all gold and silver jewels and ornaments and other valuables, which were gifted to me by my friends and admirers. And I have distributed all copper and bronze vessels and utensils among my children while leaving my former home \"Suhasa\" keeping only bare essential and necessary things and articles. Whatever movable properties, books, fittings, furniture, utensils etc. belonging to me into this house `Manasa' and my Car and cash money in hand after my death shall go to Smt. Malini Malya only. No one else shall have any claim or right over the same. Any outstanding due to me and Bank Deposits and whatever assets or properties not mentioned above, that is, residuary after my death shall belong to Smt. Malini Mallya alone.\" 4. Plaintiff- Respondent, inter alia, prayed for passing a judgment and decree against the defendants - appellants granting the following reliefs: \"1. A declaration that the plaintiff is the exclusive copyright holder in respect of Yaksharanga ballets, namely, Bhishma Vijaya, Kanakangi, Nala Damayanthi, Panchavati, Gaya Charitha, Chitrangadha, Abhimanyu Vadha, and for consequential permanent injunction restraining the Defendants, their agents, employees etc. from staging or performing any of the above said 7 ballets or Prasangas or any parts thereof. 1,000-00 2. Directing the Defendants to pay to the plaintiff damages of Rs.15,000/- towards infringement of her copyright on account of stating or performing Abhimanyu Vadha on 18-9-2001 at New Delhi. 15,000-00 3. Directing the Defendants to pay to the plaintiff interest on Rs.15,000/- at 15% p.a. from 18-9-2001 till now which is 95-00 4. Directing the Defendants to pay future interest on Rs.15,000/- at 15% p.a. till payment of the entire amount. 5. ................................... 6. .....................................\" 5. Appellants in their written statement, however, denied and disputed any copyright of the said dance in Dr. Karanth alleging that whatever work he had done was in the capacity of a Director of the Kendra with the assistance, finance and staff provided by the Organization of Mahatma Gandhi Memorial College Trust in respect whereof a Committee was formed under him by the Board of Trustees. It was furthermore contended that Dr. Karanth was appointed as the President of the Executive Committee of Yakshagana Kendra for a period of three years by the appellant and while holding the said post only he expired. 6. By reason of a judgment and decree dated 14.11.2003, the District Judge, Udupi decreed the said suit declaring the plaintiff - respondent as a person having the exclusive copyright in respect of seven Prasangas and that she had acquired the same by reason of a Will as a residuary legatee and the defendants - appellants or their employees or agents were restrained from performing the said seven ballets or Prasangas or any parts thereof in any manner as evolved distinctively by Dr. Karanth. 7. Appellants aggrieved thereby and dissatisfied therewith preferred an appeal before the Karnataka High Court which was marked as R.F.A. No. 271 of 2004. By reason of the impugned judgment and order dated 5.12.2007, the said appeal has been dismissed. 8. Appellants are, thus, before us. 9. Dr. Rajiv Dhavan, learned Senior Counsel appearing on behalf of appellants in his usual fairness conceded: i. The copyright in the literary work has been assigned by reason of the said Will in favour of the respondent in terms of clause 12 of the Will. ii. Dr. Karanth has made substantial changes in the original traditional form of the Yakshagana dance. Additions made in the form of the said dance including the Prasangas fell within the purview of `originality' in respect whereof copyright could be claimed. It was, however, urged: i. Keeping in view of the findings of the learned trial judge, it ought to have been held that no cause of action arose against the appellants in this case as the Institution had performed the said dance at New Delhi in the memory of Dr. Karanth without charging any fees. ii. The form of copyright as regards dramatic work as has been held by the High Court stating the same to be a part of the literary work is not correct as they connote two different things. iii. The form of injunction granted in favour of the plaintiff - respondent is not in terms of the provisions of the Copyright Act, 1957 as the appellant as an institution or otherwise is entitled to use the same in terms of clauses (a), (i) and (l) of sub-Section (1) of Section 52 thereof. 10. Mr. G.V. Chandrashekhar, learned counsel appearing on behalf of the respondent, on the other hand, would support the impugned judgment. 11. The Copyright Act, 1957 (for short, \"the Act\") was enacted to amend and consolidate the law relating to copyright. Section 2 is the interpretation section. Section 2(c) defines `artistic work' to mean (i) a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality; (ii) a work of architecture; and (iii) any other work of artistic craftsmanship. The word `author' is defined in Section 2(d) to mean, (i) in relation to a literary or dramatic work, the author of the work; (ii) in relation to a musical work, the composer; (iii) in relation to an artistic work other than a photograph, the artist; (iv) in relation to a photograph, the person taking the photograph; (v) in relation to a cinematograph film or sound recording, the producer; and (vi) in relation to any literary, dramatic, musical or artistic work which is computer-generated, the person who causes the work to be created. The term \"communication to the public\" as defined in Section 2(ff) reads as under: \"(ff) \"communication to the public\" means making any work available for being seen or heard or otherwise enjoyed by the public directly or by any means of display or diffusion other than by issuing copies of such work regardless of whether any member of the pubic actually sees, hears or otherwise enjoys the work so made available. Explanation.- For the purposes of this clause, communication through satellite or cable or any other means of simultaneous communication to more than one household or place of residence including residential rooms of any hotel or hostel shall be deemed to be communication to the public\" Section 2 (ffa) defines the word \"composer\", in relation to a musical work, to mean the person who composes the music regardless of whether he records it in any form of graphical notation. Section 2(h) defines \"dramatic work\" to include any piece of recitation, choreographic work or entertainment in dumb show, the scenic arrangement or acting, form of which is fixed in writing or otherwise but does not include a cinematograph film. Section 2(o) defines \"literary work\" to include computer programmes, tables and compilations including computer databases. Section 2(qq) defines \"performer\" to include an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance. Section 2(y) defines \"work\" to mean any of the following works, namely:- (i) a literary, dramatic, musical or artistic work; (ii) a cinematograph film; (iii) a sound recording. Section 13 which occurs in Chapter III of the Act provides that subject to the provisions thereof and the other provisions of the said Act, copyright shall subsists throughout India in the following classes of works, that is to say,- (a) original literary, dramatic, musical and artistic works; (b) cinematograph films; and (c) sound recording. Section 17 of the Act deals with \"First owner of copyright\", in terms whereof, subject to the provisions of the Act, the author of a work shall be the owner of the copyright therein. Proviso (d) appended thereto states that in the case of a Government work, Government shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein. Sections 22, 23 and 52(1)(a), (i) and (l) of the Act, which are relevant for our purpose read as under: \"22. Term of copyright in published literary, dramatic, musical and artistic works.- Except as otherwise hereinafter provided, copyright shall subsist in any literary, dramatic, musical or artistic work (other than a photograph) published within the life time of the author until fifty years from the beginning of the calendar year following the year in which the author dies. Explanation- In this section, the reference to the author shall in the case of a work of joint authorship, be construed as a reference to the author who dies last. 23 - Term of copyright in anonymous and pseudonymous works.- (1) In the case of a literary, dramatic, musical or artistic work (other than a photograph), which is published anonymously or pseudonymously, copyright shall subsist until sixty years from the beginning of the calendar year next following the year in which the work is first published: Provided that where the identity of the author is disclosed before the expiry of the said period, copyright shall subsist until sixty years from the beginning of the calendar year following the year in which the author dies. (2) In sub-section (1), references to the author shall, in the case of an anonymous work of joint authorship, be construed,-- (a) where the identity of the authors is disclosed, as references to that author; (b) where the identity of more authors than one is disclosed, as references to the author who dies last from amongst such authors. (3) In sub-section (1), references to the author shall, in the case of a pseudonymous work of joint authorship, be construed,-- (a) where the names of one or more (but not all) of the authors arc pseudonymous and his or their identity is not disclosed, as references to the author whose name is not a pseudonym, or, if the names of two or more of the authors are not pseudonyms, as references to such of those authors who dies last; (b) where the names of one or more (but not all) of the authors arc pseudonyms and the identity of one or more of them is disclosed, as references to the author who dies last from amongst the authors whose names arc not pseudonyms and the authors whose names are pseudonyms and are disclosed; and (c) where the names of all the authors arc pseudonyms and the identity of one of them is disclosed, as references to the author whose identity is disclosed or if the identity of two or more of such authors is disclosed, as references to such of those authors who dies last. Explanation.--For the purposes of this section, the identity of an author shall be deemed to have been disclosed, if either the identity of the author is disclosed publicly by both the author and the publisher or is otherwise established to the satisfaction of the Copyright Board by that author. 52. Certain acts not to be infringement of copyright.- (1) The following acts shall not constitute an infringement of copyright, namely:- (a) a fair dealing with a literary, dramatic, musical or artistic work not being a computer programme for the purpose of-- (i) Private use including research; (ii) criticism or review, whether of that work or of any other work; xxx xxx xxx (i) the performance, in the course of the activities of an educational institution, of a literary, dramatic or musical work by the staff and student of the institution, or of a cinematograph film or a sound recording, if the audience is limited to such staff and students, the parents and guardians of the students and persons directly connected with the activities of the institution or the communication to such an audience of a cinematograph film or sound recording. xxx xxx xxx (l) the performance of a literary, dramatic or musical work by an amateur club or society, if the performance is given to a non-paying audience, or for the benefit of a religious institution.\" 12. Before adverting to the submissions made by the learned counsel for the parties, we may notice the issues framed in the suit, which are: \"i. Does plaintiff prove that late Dr. Shivaramaji Karanth had acquired copyright in respect of seven Yakshagana Prasangas and also in respect of Yakshagana dramatic or theatrical form i.e., Bhishma Vijaya, Nala Damayanthi, Kanakaangti or Kanakangi Kalyana, Abhimanyu or Abhimanyu Vadha, Chitrangadha or Babruvahana Kalaga, Panchavati Chritha followed in the plaint? ii. Has the plaintiff became entitled to the said right under the Registered Will dated 18.06.1994? iii. Does the plaintiff prove that her right under the said Will was infringed by the defendants?\" 13. Indisputably, in view of the submissions made at the bar, respondent had acquired copyright in respect of seven Yakshagana Prasangas as also in respect of Yakshagana dramatic or theatrical form as a residuary legatee in terms of clause 12 of the Will dated 18.6.1994. However, we may notice that whereas the trial court has proceeded on the basis that clause 12 of the Will shall apply in the instant case, the High Court opined that clause 11 thereof is attracted, stating: \".....No doubt, by reading para-12 of the `Will' in isolation, one can certainly arrive at the conclusion that the bequest made in favour of the plaintiff is in the nature of residuary bequest. But, that is not all, in the `Will'-Ex. P-1. I have already referred to para No. 11 of the `Will' while dealing with the topic dramatic works vis- `-vis literary work and therefore if the `Will' is read in its entirety and if we take into account, the benefits that flow from the bequest made by Dr. Karanth in favour of the plaintiff, it is not as if the plaintiff received the bequest only in respect of the things which form the residuary as mentioned in para-12 of the `Will' but the plaintiff also was given the copyrights in respect of literary works and all books as well as the right to print, republished and mark the literary works as well as the books.\" Referring to the new Encyclopaedia Britannica and Halsbury's Laws of England, that a literary work with dramatic elements in it would also be literary work, the High Court observed: \"Dramatic works also could contain in its, passages of great literary taste, as in the case of great plays of William Shakespear. Therefore, the main classification as literary work and dramatic work cannot be construed to mean that dramatic work has nothing to do with literary work. The only difference I see in them is that the dramatic work (Plays) forms the text upon which the performance of the plays rests whereas a `literary work' enables one to read the printed words. Neither of the two can be produced without the imaginative skill of the author.\" It was furthermore held: \"I am of the considered opinion that all the above changes brought about by Dr. Karanth in respect of Yakshagana Ballet leads to the inference that the imaginative faculties of Dr. Karanth permeated the entire Yakshagana Prasangas and thus a new look was given to the Yakshagana Ballets. I, therefore, hold that the bequest of copyright in literary works and books in favour of the plaintiff by Dr. Karanth, will have to be treated as the bequest covering the dramatic works also since I have also drawn the conclusion that the dramatic works is also a form of literature. Therefore, necessity of mentioning copyright separately in respect of dramatic works does not arise. The plaintiff, therefore, is entitled to copyright even in respect of the dramatic works namely the seven prasangas, by virtue of bequest made in her favour in respect of copyrights and books.\" 14. Broadly speaking, a dramatic work may also come within the purview of literary work being a part of dramatic literature. The new Encyclopaedia Britannica (Vol-IV) 15th Edition, provides the following information about \"Dramatic Literature. \"Dramatic Literature: the texts of plays that can be read, as distinct from being seen and heard in performance.\" We must, however, notice that the provisions the Act make a distinction between the `literary work' and `dramatic work'. Keeping in view the statutory provisions, there cannot be any doubt whatsoever that copyright in respect of performance of `dance' would not come within the purview of the literary work but would come within the purview of the definition of `dramatic work'. We, however, do not mean to suggest that any act of literary work will be outside the purview of the Will dated 18.6.1994. Our exercise in this behalf was only for the purpose of clarifying the provisions of the Act with reference to the findings arrived at by the High Court. 15. For the aforementioned reasons, we agree with Dr. Dhavan that paragraph 12 of the Will, namely, residuary clause shall apply in the instant case apart from the areas which are otherwise covered by paragraph 11 of the Will. The residuary clause will apply because it is well settled that no part of the stay lies in limbo. It was also not a case where respondent in any manner whatsoever waived her right. 16. The learned trial judge on issue No. 4 opined that plaintiff had not been able to prove actual loss or damage particularly having regard to the fact that Dr. Karanth had associated himself with the appellants for a long time. The learned trial judge recognized the equitable interest vested in the plaintiff - respondent. A declaratory decree, therefore, was passed. 17. We may notice at this stage that the form of injunction granted both by the learned trial judge as also by the High Court in favour of the plaintiff-respondent. The operative part of the judgment of the trial court reads as under: \"Defendants or their employees or agents are restrained from performing the above said 7 ballets or Prasangas or in parts thereof in any manner as evolved distinctively by Dr. Karanth by way of permanent injunction.\" The High Court, however, directed: \"(iii) As far as the restraint order passed by the Trial Court by granting permanent injunction to the plaintiff is concerned, the same is modified by ordering that if the appellants desire to stage any of the seven Yakshagana prasangas in the manner and form as conceived in all respects viz., costumes, choreography and direction by Dr. Karanth, the appellants can do so only in accordance with the provisions of the Copyrights Act, 1957 in view of copyright in seven prasangas vesting with the plaintiff.\" 18. Decree for injunction is an equitable relief. The courts while passing a decree for permanent injunction would avoid multiplicity of proceedings. The court while passing such a decree, is obligated to consider the statutory provisions governing the same. For the said purpose, it must be noticed as to what is a copyright and in respect of the matters the same cannot be claimed or otherwise the same is lodged by conditions and subject to statutory limitation. 19. In R.G. Anand vs. M/s Delux Films & ors. [(1978) 4 SCC 118], this Court held: \"46. Thus, on a careful consideration and elucidation of the various authorities and the case law on the subject discussed above, the following propositions emerge: 1. There can be no copyright in an idea, subject-matter, themes, plots or historical or legendary facts and violation of the copyright in such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyrighted work. 2. Where the same idea is being developed in a different manner, it is manifest that the source being common, similarities are bound to occur. In such a case the courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work. If the defendant's work is nothing but a literal imitation of the copyrighted work with some variations here and there it would amount to violation of the copyright. In other words, in order to be actionable the copy must be a substantial and material one which at once leads to the conclusion that the defendant is guilty of an act of piracy. 3. One of the surest and the safest test to determine whether or not there has been a violation of copyright is to see if the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original. 4. Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises. 5. Where however apart from the similarities appearing in the two works there are also material and broad dissimilarities which negative the intention to copy the original and the coincidences appearing in the two works are clearly incidental no infringement of the copyright comes into existence. 6. As a violation of copyright amounts to an act of piracy it must be proved by clear and cogent evidence after applying the various tests laid down by the case-law discussed above. 7. Where however the question is of the violation of the copyright of stage play by a film producer or a director the task of the plaintiff becomes more difficult to prove piracy. It is manifest that unlike a stage play a film has a much broader prospective, wider field and a bigger background where the defendants can by introducing a variety of incidents give a colour and complexion different from the manner in which the copyrighted work has expressed the idea. Even so, if the viewer after seeing the film gets a totality of impression that the film is by and large a copy of the original play, violation of the copyright may be said to be proved.\" Yet again in Eastern Book Company & ors. vs. D.B. Modak & Anr. [(2008) 1 SCC 1], this Court held: \"57. The Copyright Act is not concerned with the original idea but with the expression of thought. Copyright has nothing to do with originality or literary merit. Copyrighted material is that what is created by the author by his own skill, labour and investment of capital, maybe it is a derivative work which gives a flavour of creativity. The copyright work which comes into being should be original in the sense that by virtue of selection, coordination or arrangement of pre-existing data contained in the work, a work somewhat different in character is produced by the author. On the face of the provisions of the Copyright Act, 1957, we think that the principle laid down by the Canadian Court would be applicable in copyright of the judgments of the Apex Court. We make it clear that the decision of ours would be confined to the judgments of the courts which are in the public domain as by virtue of Section 52 of the Act there is no copyright in the original text of the judgments. To claim copyright in a compilation, the author must produce the material with exercise of his skill and judgment which may not be creativity in the sense that it is novel or non- obvious, but at the same time it is not a product of merely labour and capital. The derivative work produced by the author must have some distinguishable features and flavour to raw text of the judgments delivered by the court. The trivial variation or inputs put in the judgment would not satisfy the test of copyright of an author.\" 20. The High Court, in our opinion, should have clarified that the appellants can also take the statutory benefit of the provisions contained in clauses (a), (i) and (l) of sub-section (1) of Section 52 of the Act. Section 52 of the Act provides for certain acts which would not constitute an infringement of copyright. When a fair dealing is made, inter alia, of a literary or dramatic work for the purpose of private use including research and criticism or review, whether of that work or of any other work, the right in terms of the provisions of the said Act cannot be claimed. Thus, if some performance or dance is carried out within the purview of the said clause, the order of injunction shall not be applicable. Similarly, appellant being an educational institution, if the dance is performed within the meaning of provisions of clause (i) of sub-section (1) of Section 52 of the Act strictly, the order of injunction shall not apply thereto also. Yet again, if such performance is conducted before a non-paying audience by the appellant, which is an institution if it comes within the purview of amateur club or society, the same would not constitute any violation of the said order of injunction. 21. With the aforementioned modification in the order of injunction, this appeal is dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs. ......................................J. [S.B. Sinha] .....................................J. [Lokeshwar Singh Panta] .....................................J. [B. Sudershan Reddy] New Delhi; January 23, 2009",
        "97694707": "1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.447 OF 2021 (Arising out of SLP (CRL.) No. 1549 of 2021) SANDEEP KHAITAN, RESOLUTION PROFESSIONAL FOR NATIONAL PLYWOOD INDUSTRIES LTD. \u2026 APPELLANT(S) VERSUS JSVM PLYWOOD INDUSTRIES LTD. & Anr. \u2026 RESPONDENT(S) J U D G M E N T K.M. JOSEPH, J. Leave granted. 1. The appeal is directed against order dated 04.02.2021 passed by the Hon\u2019ble High Court of Guwahati. In the impugned order, the High Court has allowed an interlocutory application filed by Signature Not Verified Digitally signed by Indu Marwah Date: 2021.04.22 the Respondent No. 1 to allow it to operate its 15:30:43 IST Reason: bank account maintained with the ICICI Bank Bhubaneswar and to unfreeze the bank account of its creditors over which the lien has been created and the accounts frozen pursuant to the lodging of an FIR by the appellant before us. It was made subject to conditions. 2. An application under Section 7 of the Insolvency and Bankruptcy Code, 2016, hereinafter referred to as the IBC was admitted on 26.08.2019 against one National Plywood Industries Limited (NPIL). The Appellant was appointed as the Interim Resolution Professional. A moratorium also came to be passed by the very same order within the meaning of Section 14 of the IBC. The Appellant came to be appointed as the Resolution Professional by an order dated 08.11.2019. In the meantime, the Respondent No.1 claiming to be an operational creditor lay the claim for the amounts due to it from the Corporate Debtor before the Appellant vide communication dated 22.11.2019. It would appear that the former Managing Director of the Corporate Debtor challenged the order of the NCLT, Guwahati, admitting the application under Section 7. The NCLAT by order dated 24.11.2019 dismissed the appeal interalia holding that the application under Section 7 was not barred by limitation. Civil Appeal No. 9142 of 2019 filed by the former Managing Director of the Corporate Debtor came to be however allowed by this Court by an order dated 20.01.2020. The NCLT was directed to consider the matter in accordance with law. It would appear that on 28.01.2020 interlocutory application 7 of 2020 filed by the former Managing Director of the Corporate Debtor seeking an injunction restraining the Respondents therein from interfering in the operation of the Corporate Debtor and to disperse the cost of the CIRP was disposed of interalia as follows: - i. \u201cToday the Respondents submitted across the Bar that except ratifying the expenses of the IRP, no major decisions have been taken by the COC in the yesterday\u2019s COC meeting. Both the respondents informed that they are conscious about the order passes by the Hon\u2019ble Supreme Court and the legal consequences thereof. ii. In view of the above submissions of the respondents, this Tribunal expects that the respondents would maintain status-quo in respect of the IRP proceedings. As the main company petition was remanded back to the Hon\u2019ble NCLAT for fresh disposal in accordance with law, this Tribunal is of the considered opinion that the petitioner has to approach the Hon\u2019ble NCLAT for any further directions in the above matter and accordingly above application stands disposed of with the above observations. Even otherwise, the order of admission of the company petition has not attained finality and, therefore, no interim orders as prayed for needs to be passed today. iii. In the result, IA No. 07 of 2020 is disposed of with the above observations.\u201d Thereafter there is order dated 20.03.2020 passed which we will advert to. 3. It is the case of the Appellant that the former Managing Director of the Corporate Debtor in conspiracy with the Respondent No.1 engaged in an illegal transaction to the tune of Rs. 32.50 lakhs without authority from the Appellant and in violation of Section 14 of the IBC. It is his complaint that initially, the Managing Director made a transaction of Rs. 500. Thereafter, he proceeded by virtue of 4 consecutive transactions to transfer a sum of Rs. 32.50 lakhs to the Respondent No. 1. It is also complaint of the Appellant that the former Managing Director proceeded to transfer another sum of Rs. 3.29 lakhs from another account and the amount was transferred to his close associate. 4. On 23.04.2020, the Appellant filed a cyber complaint. This was followed on the same date by filing an application under Section 19 read with Section 23 (2) of the IBC alleging non corporation by the previous management of the Corporate Debtor. On 27.04.2020, the Appellant got lodged an FIR. On 04.05.2020 the ICICI Bank created a lien upon the bank account of the Respondent No. 1 based on the allegedly illegal transaction. The next development to be noticed is the order dated 20.05.2020 passed by the NCLT, Guwahati. The order is passed in I.A. No. 37 of 2020. The relief sought therein was for direction to the Directors of the Corporate Debtor to hand over the management of the company. The order reflects the controversy relating to the payment of Rs. 32.50 lakhs violating the moratorium. Tribunal finds that the directors of the Corporate Debtor were not giving maximum assistance. On the basis of its findings the tribunal issued directions to the suspended Board of the Corporate Debtor to cooperate with the Appellant. The Auditors were to complete the audit expeditiously interalia. More importantly the Directors were directed to refund the amount withdrawn less the amount if any paid to the alleged supplier as the cost of raw materials. The interlocutory application was posted before the regular bench for hearing after lifting the lockdown. 5. A perusal of the order reveals that the Directors of the company sought to defend the withdrawal of Rs.32.50 lakhs as one intended to pay for the raw materials. It is further noticed that the Tribunal noticed that there was no proof for the same. More importantly it was found that even if done to discharge debt due to supplies during the CIRP, without permission and knowledge of the Resolution Professional, it was in violation of Section 14 of the Code. 6. The Appellant moved an application for review of the order dated 20.05.2020. The Tribunal in its order dated 05.06.2020 noticed the limitations flowing from Rules 154 and 155 of the NCLT, Rules, 2016 in the matter of review. It is observed that for the reasons highlighted in the 20.05.2020 the former Directors of the Corporate Debtor are found prima facie liable to refund the amount unauthorisedly withdrawn from the account of the Corporate Debtor. It is also noticed that the Directors of the suspended board were not made respondents. The application for review came to be dismissed. 7. The genesis of the impugned order is the FIR lodged against the Appellant and arose from the payment effected into the account of Respondent No.1 in a sum of Rs. 32.50 lakhs. The said FIR came to be challenged in a petition under Section 482 of the Cr.P.C. by the Respondent No.1 by filing Criminal Petition No. 454 of 2020. In the same the Appellant also filed I.A. No. 453 of 2020. 8. On 19.01.2021 the NCLT, Guwahati passed an order in I.A No. 37 of 2020. By the said order the Appellant was directed to discharge his duties as per the provisions of the IBC. Thereafter, it also passed the following directions: - i. \u201cThe Learned Counsel for the Respondents has confirmed that the Suspended Management has been co-operating and providing assistance to RP to complete the CIRP in time. The Corporate Debtor is directed to submit its reply Affidavit to the allegations made relating to the transactions of Rs. 35.795 lakhs serving a copy upon the RP. ii. Any amount of the Corporate Debtor lying in any Bank is to be transferred to the account being operated by the RP. Banks having account of the Corporate Debtor are directed to lift the lien, if any, on any amount of the Corporate Debtor and allow the operation of the account by the RP only. iii. The RP is directed to utilize the funds of the Corporate Debtor under CIRP judiciously keeping the Unit in its full operation.\u201d 9. Thereafter, in the petition filed by the Respondent No.1 under Section 482, the High Court admitted the petition. The case was directed to be listed for regular hearing in usual course. (According to the Appellant the High Court had directed investigation to be continued. This is not seen reflected in the order which is produced). In the I.A No. 453 of 2020 filed in the Section 482 resulting in the impugned order, the prayers sought has already been noted. It is to allow the Respondent No.1 and its creditors to operate their bank account over which lien has been created and those accounts which have been frozen based on the FIR dated 27.04.2020. THE IMPUGNED ORDER 10. After noticing the contentions of the parties, the Learned Single Judge in the impugned order proceeds to hold as follows:- i. \u201cFrom the material on record, it is apparent that there was business relation between the petitioner company and the NPIL, which is evident from the various documents annexed to the petition. Only question raised in this FIR is that the money was transferred by the suspended CMD without any authority, inasmuch as, the entire state of affairs of NPIL was vested with the Respondent No. 2, who has been appointed as resolution professional. Only incriminating allegation against the petitioner is that the suspended CMD has personal interest in the petitioner company being an associate company, which is however, a disputed fact required to be investigated by police. ii. Be that as it may, having considered the entire gamut of the matter and the nature of accusation brought against the present petitioner, I am of the view that freezing of all the bank account as indicated above would certainly cause unnecessary hardship, which may not be necessary for the investigation of the present FIR in view of the nature of the accusation made therein as well as in view of the offer made by the petitioner to furnish a bond. Therefore, in my consider view, the petitioner is entitled to the interim relief as sought for. Accordingly, it is provided that the lien created upon the bank account no. 149905001306 maintained with the ICICI Bank Limited, Chandrasekarpur Branch, Bhubaneswar be lifted, the petitioner and its creditors shall be allowed to operate the bank account over which lien has been created and the accounts have been frozen pursuant to the instruction of the Respondent No. 2 in connection with Margherita P.S. Case No. 0112/2020, until further order of the Court. iii. It is however, made clear that the interim relief granted to the petitioner as above with regard to unfreezing the bank account and lifting of lien shall be subject to the condition that the petitioner shall withdraw the WP (C) No. 118/2020 filed before the Itanagar Permanent Bench of this Court and furnishing an indemnity bond undertaking to refund the amount of Rs. 32.50 Lakhs if required, subject to final outcome of the criminal case.\u201d 11. We heard the Learned Counsel for the Appellant Shri Anand Varma and the Learned Counsel for the Respondent No. 1, Shri Harish Pandey. The State is represented by Shri Shuvodeep Roy. SUBMISSIONS 12. The Learned Counsel for the Appellant contended that the impugned order proceeds on an erroneous basis namely that the allegations about the co-accused (former Managing Director of the Corporate Debtor) having an interest in the Respondent No.1 Company was a disputed fact which had to be investigated. It is the case of the Appellant that there is a report of the auditing firm. Also, the said finding of the High Court is contrary to the documents of the Respondent No. 1 itself. It is also urged that the High Court itself has permitted the investigation to go on in the petition under section 482. Secondly, he pointed out that the impugned order was contrary to Section 14 of the IBC. He drew support from the judgment of this Court in P Mohanraj vs. M/S. Shah Brothers Ispat Pvt. Ltd. in Civil Appeal No. 10355 of 2018. According to him, the whole purpose of the moratorium would be defeated if members of the previous management of the Corporate Debtor are left free to transfer the funds of the Corporate Debtor. The Respondent No. 1 was a related party of the Corporate Debtor. He reiterates that with the appointment of Appellant as the Resolution Professional under Section 25 (2)a of the IBC he is to take custody and control of all the assets of the Corporate Debtor. Finally, he also emphasized the nature of the jurisdiction under Section 482 of the Cr.P.C. The High Court has overlooked the limits of its power in passing the impugned order, he complains. He points out that the order admitting the application under section (7) has not been stricken by the remand by this Court of the appeal against the order admitting the application. 13. Per contra Shri Harish Pandey, Learned Counsel, contended that the order may not be interfered by this Court. The Respondent No.1 was a related party and it was always known to be such related party. He referred to the fact that the Respondent No.1 was supplier of raw material to the Corporate Debtor. He pointed out goods worth more than Rs.2 crores have been supplied by it to the Corporate Debtor. Payments were being made. In fact, a sum of more than Rs.39 lakhs is further due from the Corporate Debtor to the Respondent No. 1. It is emphasized as a MSME it would cause grave prejudice to it if the impugned order is set aside. 14. It is the case of the Respondent No. 1 further that the business relationship between the Respondent No. 1 and Corporate Debtor has existed for more than 15 years. The Corporate Debtor has been declared a sick industry on 18.04.2006. It was nursed back by the Respondent No. 1. Our attention is drawn to the minutes of the first meeting of the Committee of Creditors dated 23.09.2019. The minutes reveal that committee of creditors observes that a substantial part of the raw materials is purchased from Respondent No.1 and that the relatives of the Corporate Debtor directors or shareholders hold more than 51 percent shareholding of the first respondent. It is further noted that the processes to assess the veracity and reasonableness of the transaction in such situation were let known and the purchases/sales must be benchmarked against arm\u2019s length transactions and open market transactions. (We may also notice that the meeting resolved that all the banks were to act on the instructions of the appellant interalia.) It is the case of the Respondent No. 1 that right from the beginning, it was known that the Respondent No. 1 was a related party. It is the further case of the Respondent No. 1 that its claim for over 6 crores of rupees was vetted, verified and admitted by the Appellant. After the commencement of CIRP Respondent No. 1 had made regular substantial supplies to the Corporate Debtor for which the payment were being made (they relate to the period from 26.08.2019 to 31.03.2020). This is shown as amounting to Rs. 2,70,84,982. The Respondent No. 1 lays store by the order of the NCLT, Guwahati dated 28.01.2020 which we have already referred to. E-mails addressed to the Appellant to clarify did not evoke any response. In March 2020, orders were placed by the Corporate Debtor for approximately Rs. 30 lakhs. The lockdown intervened. On 18.04.2020 it is not disputed that the Corporate Debtor made a payment of Rs 32.50 lakhs through online net banking transfer against material supplied during the period that the corporate debtor was under CIRP. The Learned Counsel for the Respondent No.1 would point out that the order of the NCLT dated 20.05.2020 passed by the NCLT directed the directors of the Corporate Debtor to refund the amount withdrawn less any amount supplied to the alleged supplier. It is therefore, pointed out creating a lien on the accounts of the Respondent no. 1 was not justified. The Learned Counsel also drew our attention to the order dated 24.03.2021 passed by the NCLT Guwahati Bench. This is in an effort at showing the manner in which the appellant has been functioning. The Tribunal in the said order refers to the Impugned Order and the Interim order passed by this Court in this matter. The Tribunal noted that the production has been suspended and layoff notice is also issued in regard to the Corporate Debtor. The objectives of the IBC are being defeated on the basis of the claims and the FIR interalia. The Appellant was directed to file the copy of the FIR in this case among other documents. The Learned counsel for the Respondent no. 1 would submit that the having regard to the orders passed by the tribunal the Impugned Order passed by the High Court may not be interfered with. Having regard to the dismissal of the review petition filed against the 20.05.2020 there is no merit in the present appeal. 15. The Learned Counsel for the Appellant would point out that the Appellant is prevented from disbursing the salary of the workers. Nearly four months\u2019 salary would be disbursed with the amount which was paid by the former management without any authority as noticed. It is the case of Appellant that the transactions between the Respondent No.1 and the Corporate Debtor was not authorised by the Appellant during the period from 21.02.2020 to 27.04.2020. FINDINGS 16. The contours of the jurisdiction under 482 of the Cr.P.C. are far too well settled to require articulation or reiteration. Undoubtedly, in this case by 26.08.2019 an application filed under section 7 of the IBC was admitted, the appellant appointed as the interim resolution professional and what is more a moratorium declared. With the declaration of the moratorium the prohibitions as enacted in section 14 came into force. It is clear that the assets of the company would include the amounts lying to the credit in the bank accounts. There cannot be any dispute that well after the order under section 14 was passed, a sum of Rs. 32.50 lakhs has been remitted into the account of Respondent No.1 company. No doubt it is the definite case of the Respondent No.1 that it has had business relations with the Corporate Debtor since more than 15 years and that the amount remitted in its account represented the price of the materials supplied to the Corporate Debtor. Apart from this amount a sum of rupees more than Rs.39 lakhs is still due. It is to be noticed that though an appeal was filed against the order admitting the petition under Section 7 the same was dismissed by the NCLAT. The appellate order was undoubtedly set aside by this court and the appeal remanded to the NCLT for its consideration. We would think that setting aside the appellate order of the NCLAT by this court and remanding the appeal would not have the effect of setting aside the order admitting the application. Initially, as was noticed by us an order was passed on 28.02.2020. The ambiguity created by the said order was removed by the subsequent order of the Tribunal dated 20.03.2020. In other words, by the order dated 20.03.2020 the NCLT, Guwahati ordered that the appellant was at liberty to act as per law and the words used in the earlier order dated 28.02.2020 relied upon by the Respondent No.1 were found to be a mere casual observation which did not culminate into any direction. We need not say anything further particularly in view of the fact that there is an FIR and which is pending consideration in the High Court also. It is significant only for us to notice that the Appellant is essentially aggrieved by the transactions representing a sum of Rs. 32.50 lakhs all of which took place after order dated 20.03.2020. 17. It may be true that in the interim order passed by the NCLT Guwahati, the Tribunal had directed the Directors to refund the amount of the Corporate Debtor less any amount paid for supplies. It is also true that the review petition filed by the Appellant is dismissed, essentially based on the limitations on the power of review. 18. The provisions of the IBC contemplate resolution of the insolvency if possible, in the first instance and should it not be possible, the winding up of the Corporate Debtor. The role of the insolvency professional is neatly carved out. From the date of admission of application and the appointment of Interim Resolution Professional, the management of the affairs of the Corporate Debtor is to vest in the Interim Resolution Professional. With such appointment, the powers of the Board of Directors or the partners of the Corporate Debtor as the case may be are to stand suspended. Section 17 further declares that the powers of the Board of Directors or partners are to be exercised by the Interim Resolution Professional. The financial institutions are to act on the instructions of the Interim Resolution Professional. Section 14 is emphatic, subject to the provisions of sub section (2) and (3). The impact of the moratorium includes prohibition of transferring, encumbering, alienating or disposing of by the Corporate Debtor of any of its assets. 19. Sub section 2 reads as follows:- \u201cThe supply of essential goods or services to the corporate debtor as may be specified shall not be terminated or suspended or interrupted during moratorium period.\u201d 20. Essential goods and services referred to in Section 14(2) has been defined by Regulations. Regulation 32 of the INSOLVENCY AND BANKRUPTCY BOARD OF INDIA (INSOLVENCY RESOLUTION PROCESS FOR CORPORATE PERSONS) REGULATIONS, 2016, reads as follows:- \"Essential Supplies. The essential goods and services referred to in section 14(2) shall mean- i. Electricity; ii. water; iii. telecommunication services; and iv. information technology services, to the extent these are not a direct input to the output produced or supplied by the corporate debtor. Illustration- Water supplied to a corporate debtor will be essential supplies for drinking and sanitation purposes, and not for generation of hydro-electricity.\u201d 21. Also, undoubtedly Section (2A) of Section 14 of the THE INSOLVENCY AND BANKRUPTCY CODE, 2016 provides as follows: \u201cWhere the interim resolution professional or resolution professional, as the case may be, considers the supply of goods or services critical to protect and preserve the value of the corporate debtor and manage the operations of such corporate debtor as a going concern, then the supply of such goods or services shall not be terminated, suspended or interrupted during the period of moratorium, except where such corporate debtor has not paid dues arising from such supply during the moratorium period or in such circumstances as may be specified.\u201d 22. This provision was inserted with effect from 28.12.2019. No doubt under this provision goods or services not covered by Section 14(2) are also covered. The call however is to be taken by the IRP/RP. Raw material supply could fall within the provision. The IRP/RP must take a decision guided purely by the object of the IBC and the provisions and the factual matrix. 23. With the appointment of Committee of Creditors, a Resolution Professional is to be appointed. The Resolution Professional is thereafter to conduct the resolution process and manage the operations. Section 23 (2) makes it clear that his power is the same as the powers of the Interim Resolution Professional. Undoubtedly, the Resolution Professional is bound to seek prior approval of the Committee of Creditors in maters covered by Section 28. 24. We have to also in this context bear in mind that the High Court appears to have, in passing the impugned order, which is an interim order for that matter, overlooked the salutary limits on its power under Section 482. The power under Section 482 may not be available to the Court to countenance the breach of a statuary provision. The words \u2018to secure the ends of justice\u2019 in Section 482 cannot mean to overlook the undermining of a statutory dictate, which in this case is the provisions of Section 14, and Section 17 of the IBC. 25. It would appear to us that having regard to the orders passed by the NCLT admitting the application, under Section 7, and also the ordering of moratorium under Section 14 of the IBC and the orders which have been passed by the tribunal otherwise, the impugned order of the High Court resulting in the Respondent No. 1 being allowed to operate the account without making good the amount of Rs 32.50 lakhs to be placed in the account of the Corporate Debtor cannot be sustained. The Learned Counsel for the Appellant has also no objection in the Respondent No. 1 being allowed to operate its account subject to it remitting an amount of Rs. 32.50 lakhs into the account of the Corporate Debtor. In such circumstances, Appeal is allowed. The Impugned order is modified as follows: i. The Respondent No.1 is allowed to operate its account subject to it to first remitting into the account of the Corporate Debtor, the amount of Rs 32.50 lakhs which stood paid to it by the management of the Corporate Debtor. The assets of the Corporate Debtor shall be managed strictly in terms of the provisions of the IBC. The Appellant as RP will bear in mind the provision of Section 14 (2A) and the object of IBC. We however make it clear that our order shall not be taken as our pronouncement on the issues arising from the FIR including the petition pending under Section 482 of the Cr.P.C. ii. We also make it clear that the judgment will not stand in the way of the Respondent No.1 pursuing its claim with regard to its entitlement to a sum of Rs.32.50 lakhs and any other sum from the Corporate Debtor or any other person in the appropriate forum and in accordance with law. There will be no order as to costs. ......................J. (UDAY UMESH LALIT) ......................J. (K.M. JOSEPH) New Delhi, April 22, 2021.",
        "48386631": "HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Judgment Reserved on 20.11.2020 Judgment Delivered on 08.12.2020 Court No. - 5 Case :- WRIT TAX No. - 646 of 2020 Petitioner :- M/S Indian Oil Corporation Limited Respondent :- Union Of India And 2 Others Counsel for Petitioner :- Shubham Agrawal,Sanyukta Singh Counsel for Respondent :- A.S.G.I.,Gaurav Mahajan Hon'ble Surya Prakash Kesarwani,J. Hon'ble Dr. Yogendra Kumar Srivastava,J. (Per Hon'ble Surya Prakash Kesarwani J.) 1. Heard Sri Shubham Agrawal, learned counsel for the petitioner and Sri Gaurav Mahajan, learned counsel for the respondent nos. 2 & 3. Learned counsel for the petitioner submits as under: 2. This writ petition has been filed for the following relief:- \"(a) Certiorari quashing and setting aside the SVLDRS-3 dated 26.2.2020 (Annexure No.12) passed by the Designated Committee; (b) Mandamus directing the Designated Committee to accept the SVLDRS-1 Declaration (Annexure No.8) filed by the petitioner. (c) Mandamus directing the respondent No.1 to delete SKO from Fourth Schedule of Central Excise Tariff Act, 1944, retrospectively, wef 1.7.17; Or in the alternative (d) Declaring continued existence/non-deletion of SKO from the Fourth Schedule of Central Excise Tariff Act, 1944, after 1.7.17, to be violative of section 174 of Central Goods and Service Tax 2017 and also violative of Entry No.84 of List - I (Union List) of the Seventh Schedule to Constitution of India, which has been amended by the Constitution (One Hundred and First) Amendment Act, 2016.\" 3. This writ petition was heard at length on 20.11.2020 and the submissions made by learned counsels for the parties were noted. Submission on behalf of the petitioner 4. Learned counsel for the petitioner has submitted as under :- (i) A show cause notice dated 17.10.2007 under the Central Excise Act, 1944 was issued to the petitioner for excise duty of Rs.2,96,99,001/- not paid for the period from 01.11.2002 to 31.03.2005. Penalty was also sought to be imposed under Section 11-A of the Central Excise Act 1944 read with Rule 25 of the Central Excise Rules, 2002. (ii) A scheme known as \"Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019\" was enacted by Finance (No.2) Act, 2019. Section 124 of the Finance Act, 2019 provides that tax dues relatable to a show cause notice pending as on 30.06.2019 for more than Rs. 50 lacs shall be available to a declarant to give him relief of 50% of the tax dues. Section 125(1)(h) of the Act 2019 provides that persons seeking to make declaration with respect to excisable goods set forth in the 4th Schedule to the Central Excise Act, 1944 shall not be eligible to make a declaration under this scheme. Disputed commodity i.e. SKO is mentioned in the 4th Schedule of the Central Excise Act as amended by Taxation Laws (Amendment) Act, 2017 (No.18 of 2017) whereby the 2nd Schedule to the Central Excise Tariff Act was renumbered with certain modifications as 4th Schedule, but inclusion of SKO in the 4th Schedule to the Central Excise Act is not permissible inasmuch as after amendment of entry 84 of List 1 of the 7th Schedule to the Constitution of India, the parliament has power to impose Central Excise duty only in respect of 5 items, namely, petroleum crude, high speed diesel oil, motor spirit, natural gas aviation turbine fuel and tobacco and tobacco products which does not include SKO. Therefore, the SKO could not have been included in the 4th Schedule. (iii) The application of the petitioner for taking benefit of the aforesaid scheme has been arbitrarily rejected by impugned communication dated 26.02.2020 on the ground that as per Section 125 (1)(h) of the Finance (No.2) Act, 2019 the product i.e. SKO is set forth in the 4th Schedule of Central Excise Tariff Act, 1944 and, therefore, the application to avail benefits of SVLDRS scheme can not be accepted. (iv) Since SKO is not an excisable goods. Therefore, the petitioner could not have been denied the benefit of SVLDRS scheme by the impugned order/communication dated 26.02.2020. (v) In view of the amended entry 84 of list 1 of the 7th Schedule of the Constitution (one hundred and 1st Amendment) Act, 2016, the 4th Schedule to the Central Excise Tariff Act mentioning therein SKO by the Taxation Laws (Amendment) Act, 2017 (No.18 of 2017) is violative of Section 174 of the Central GST Act which has repealed the Central Excise Act except with respect to the matters provided in the amended entry 84 of list 1 of the 7th Schedule. (vi) Since GST is being charged as mentioned in the 4th Schedule (List of goods at 5% rate) at Serial No.164 on \"Kerosene PDS\", therefore, the existence of SKO (Super Kerosene Oil) in the 4th Schedule to the Central Excise Act showing rate of duty as nil, can not be continued under the Central Excise Tariff Act. Submission on behalf of the respondents 5. Sri Gaurav Mahajan, learned counsel for the respondent nos. 2 & 3 supports the action of the respondents and the impugned order. He further submits that proper procedure was followed before rejecting the application of the petitioner. 6. Sri Gaurav Mahajan, further submits that SKO continues to be an excisable goods falling under the 4th Schedule of the Central Excise Act. Facts 7. Briefly stated facts of the present case are that the petitioner is engaged in the manufacturing and clearance of various petroleum products falling under Chapter 27 of the Central Excise Tariff Act, 1985 (hereinafter referred to as \"the Tariff Act\"). During the period 01.11.2002 to 31.03.2005 petitioner paid Central Excise duty on the basis of Central Excise invoice in which value was shown much lower than actual price recovered by the petitioner from the buyers as per the commercial invoices in respect of Superior Kerosene Oil (SKO). Consequently, a show cause notice dated 17.10.2007 under Section 11 of the Central Excise Act, 1944 (hereinafter referred to as \"the Act 1944\") was issued to the petitioner by the Commissioner of Central Excise, Lucknow, requiring them to show cause as to why Central Excise duty amounting to Rs.2,96,99,001/- short paid for the period from 01.11.2002 to 31.03.2005 may not be recovered under Section 11-A and penalty under Section 11-AC of the Act, 1944 read with Rule 25 of the Central Excise Rules, 2002, be not imposed. The petitioner submitted reply dated 17.12.2007 in which the petitioner admitted lower amount shown in the Central Excise invoices and higher amount shown in the commercial invoices but took the stand that subsidy received from the Government will not form part of the value for the purposes of payment of Central Excise Duty. According to the petitioner final order has not yet been passed pursuant to the aforesaid show cause notice. In the mean time, the Finance (No.2) Act, 2019 enacted \"Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019\" (hereinafter referred to as \"Sabka Vishwas Scheme\") which was applied to demands under several enactments including Central Excise Act, 1944. Section 124 of the Finance (No.2) Act, 2019, provides for relief available under the Scheme. Section 125 provides that all persons shall be eligible to make a declaration under the Scheme except classes of persons provided in Clauses (a) to (h). Relevant Clause (h) of Section 125 (1) of the Finance (No.2) Act, 2019 i.e. Sabka Vishwas Scheme is reproduced below:- \"Section 125 Declaration under Scheme (1) All persons shall be eligible to make a declaration under this Scheme except the following, namely :- (a) .... (b) .... (c) .... (d) .... (e) .... (f) .... (g) .... (h) Persons seeking to make declarations with respect to excisable goods set forth in the Fourth Schedule to the Central Excise Act, 1944 (1 of 1944).\" 8. Rule 3 of the \"Sabka Vishwas (Legacy Dispute Resolution) Scheme Rules, 2019\" (hereinafter referred to as \"Sabka Vishwas Rules\") provides for declaration under Section 125 electronically. Rule 4 provides for auto acknowledgment. Rule 6 provides for verification of declaration by the designated committee and issue of estimates etc. in Form No. SVLDRS - 3. 9. The designated committee issued the impugned communication dated 26.02.2020 to the petitioner with the remarks as under :- \"As per Section 125 (h) of the Finance (No.2) Act, 2019, the product i.e. SKO is set forth in the Fourth Schedule of Central Excise Tariff Act, 1944, therefore, the application to avail benefits of SVLDRS Scheme can not be accepted\" . 10. Aggrieved with the aforesaid communication, the petitioner has filed the present writ petition. Discussion and Findings 11. By the constitution (One Hundred and First Amendment) Act 2016, dated 08.09.2016, Article 246-A was inserted providing for Special Provision with respect to goods and service Tax. By Section 17 of same Amendment Act, the 7th Schedule to the Constitution was amended by substituting in list -1 - Union List, the entry 84 as under :- Entry 84 of List - 1 - Union List 12. Duties of excise on the following goods manufactured or produced in India, namely :- \"(a) Petroleum Crude; (b) High Speed Diesel; (c) Motor Spirit (commonly known as petrol); (d) natural gas (e) aviation turbine fuel; and (f) tobacco and tobacco products.\" 13. In K.C. Sachdeva Vs. State 1976 Cri.L.J. 1208(para 4) learned Single Judge has observed that the \"Petroleum\" includes \"Kerosene. In its own case i.e. in Indian Oil Corporation Limited Vs. Commissioner of Central Excise Vadodara (2010) 12 SCC 750 Hon\"ble Supreme Court while referring to the Chapter heading 27 of the erstwhile Central Excise Tariff Act 1985 and Notification No.5/98-CE dated 2.6.1998 and Notification No.5/99-CE dated 28.2.1999 noticed the Notification in which it is mentioned that \"Kerosene\" is any hydro carbon oil (excluding Colza Oil and white spirit) which has a smoke point of 18 mm or more. 14. It appears that on account of the one hundred and First constitution Amendment Act, 2016, the Goods and Service Tax laws were enacted and Central Excise Act, 1944 was also amended by Act 18 of 2017. By Section 174 of the Central Goods and Service Tax Act, 2017 assented by the President on 12.04.2017 and enforced w.e.f. 01.07.2017 certain enactments including the Central Excise Act, 1944 (except as respects goods included in entry 84 of the Union List of the 7th Schedule to the Constitution) and the Central Excise Tariff Act, 1985, have been repealed with a saving clause in sub - Section (2). 15. By Act 18 of 2017 (w.e.f. 01.07.2017) several amendments were made in the Central Excise Act, 1944. The relevant amended provisions for the purposes of the present case are Section 2(d), Section 2(f) (ii) and the Fourth Schedule to the Act. The Fourth Schedule has been substituted with reference to the provisions of Section 2(d) and Section 2(f)(ii) of the Act, 1944. Section 2(d) and 2(f)(ii) are reproduced below:- \"Section 2(d) \"Excisable goods\" means \"goods\" specified in the Fourth Schedule as being subject to a duty of excise and includes salt. Explanation.- For the purposes of this clause, \"goods\" includes any article, material or substance which is capable of being bought and sold for a consideration and such goods shall be deemed to be marketable\" Section 2(f)(ii) \"Manufacture\" includes any process - (i) ...... (ii) .....which is specified in relation to any goods in the section or Chapter notes of the Fourth Schedule as amounting to manufacture; or (iii)...... and the word \"manufacturer\" shall be construed accordingly and shall include not only a person who employs hired labour in the production or manufacture of excisable goods, but also any person who engages in their production or manufacture on his own account.\" 16. Section 3 of the Act, 1944 as amended by Act 18 of 2017 is the charging Section. It provides for leavy and collection of duty of excise to be called Central Value Added Tax (CENVAT) on all excisable goods which are produced or manufactured in India, at the rates set forth in the Fourth Schedule. Sub-Section 3 of Section 3 empowers the Central Government to provide by Notification rates of duty and tariff values with respect to the articles enumerated in the Fourth Schedule. Thus, all the items which are enumerated in the Fourth Schedule are excisable goods in terms of the provisions of Section 2(d), read with Section 2(f) and are liable to duty at the notified rates under the charging Section 3 of the Act. 17. \"Manufacture\" is the taxable event under the Central Excise Act, 1944 while under Section 9 of the CGST Act/UPGST Act, the event of taxation is the supply of goods or services except the supply of alcoholic liquor for human consumption. Sub-Section 2 of Section 9 of the CGST Act/UPGST Act empowers to levy tax on supply of petroleum crude, high speed diesel oil, motor spirit, natural gas and aviation turbine fuel shall be levied with effect from such date as may be notified by the Government on the recommendations of the Council. Thus, GST may be levied even on such goods which are excisable goods under the Central Excise Act, 1944. Therefore, Superior Kerosene Oil (SKO) shall continue to be an excisable goods under the Central Excise Act, 1944 even if GST on supply of Kerosene Oil (PDS) is levied under the GST laws. 18. Perusal of the Fourth Schedule to the Central Excise Act, 1944 and the provisions of Section 2(d) read with Section 2(f)(ii) leaves no manner of doubt that Superior Kerosene Oil is an excisable goods under the Central Excise Act, 1944, even if no rate of duty has been notified by the Central Government under the Act, 1944. Section 125(1)(h) of the Finance (No.2) Act, 2019 (Sabka Vishwas Scheme) specifically excludes applicability of the \"Sabka Vishwas Scheme\" with respect to excisable goods set forth in the Fourth Schedule to the Central Excise Act 1944. Since the 'SKO\" is an excisable goods set forth in the Fourth Schedule to the Central Excise Act, 1944, therefore, the petitioner was not eligible to make a declaration under the Scheme in view of Section 125 of the Finance (No.2) Act 2019. 19. Perusal of the Fourth Schedule shows that against the goods Superior Kerosene Oil \"......\" is appearing under the column rate of duty. Clause 4 of the additional notes to the Fourth Schedule provides that \"......\" against any goods denotes that Central Excise Duty under this Schedule is not leviable on such goods. It means that S.K.O. is an excisable goods as defined in Section 2(d) read with Section 2(f) and Section 3 (Charging Section) of the Central Excise Act, 1944 but presently no duty is leviable in the absence of rate of duty in the Fourth Schedule to the Act, 1944. 20. Thus, if the \"additional notes\" to the Fourth Schedule is read together with Section 2(d), Section 2(f)(ii), Section 3 of the Act, 1944 and Section 125 (1) (h) of the Finance (No.2) Act, 2019, it is clear that Section 125(1)(h) merely makes a person not eligible for declaration with respect to the excisable goods which are set forth in the Fourth Schedule to the Act, 1944. 21. Undisputedly, Superior Kerosene Oil is mentioned in the Fourth Schedule although no rate of duty has been provided. If rate of duty has not been provided it shall merely mean that no duty is leviable in the absence of rate of duty. It does not mean that such goods are not excisable. All the goods mentioned in Fourth Schedule to the Act, 1944 shall continue to be excisable goods unless the goods is removed from the Schedule by an amendment. Section 174 of the CGST Act has not repealed the Central Excise Act, 1944 as respect to the goods included in entry 84 of the Union List of the Seventh Schedule to the Constitution. The Central Excise Act, 1944 as amended by Act 18 of 2017 has been enacted with respect to the goods included in entry 84 of the Union List of the Seventh Schedule to the Constitution which includes S.K.O. 22. The petitioner has sought the relief No. (c) and (d) to delete SKO from the Fourth Schedule of Central Excise Tariff Act, 1944. There is no such Act. The relief sought is without substance. Apart from this, inclusion of SKO in the Fourth Schedule of the Act, 1944 is not violative of Section 174 of the CGST Act, 2017, for detailed reasons given in the foregoing paragraphs. 23. \"Sabka Vishwas Scheme\" is a complete code in itself. An earlier scheme known as \"Kar Vivad Samadhan\" scheme was considered by Hon'ble Supreme Court in the case of Union of India Vs. Nitdip Textile Processors Pvt. Ltd. 2011 (273) ELT 321 (SC) : (2012)1 SCC 226 and it was held that such a scheme is a complete code in itself. 24. Provisions in Chapter V of the Finance (No.2) Act, 2019, whereby \"Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019\" has been enacted; is an offer by the Government to settle tax arrears locked in litigation at a substantial discount. Section 124 Finance (No.2) Act 2019 provides the slabs of tax arrears and the discount slabs in percentage for payment by an applicant/declarant to settle the dispute. Section 125 provides that all persons shall be eligible to make a declaration under the Scheme except those mentioned in Clauses (a) to (h). Section 126 empowers the designated Committee to verity the correctness of the declaration made by the declarant under Section 125 in the manner as may be prescribed. Section 127 of the Act empowers the designated Committee to issue statement indicating the amount payable by the declarant and in the event the amount estimated by the designated Committee exceeds the amount declared by the declarant then the designated Committee shall afford an opportunity of hearing to the declarant and thereafter issue a statement in electronic form indicating the amount payable by the declarant. Thereafter, the declarant shall pay the amount through internet banking and on payment, the designated committee shall issue a discharge certificate in electronic form within 30 days of the payment and production of proof. Sub-Section 6 and Sub-Section 7 of Section 127 provides for withdrawal or deemed withdrawal of Appeal, Revision, Reference or Writs relating to the matter in question. Section 129 provides for certain immunities to the declarant. Section 130 prohibits payment through input tax credit account, refunds and to take input tax credit of the amount deposited under the Scheme. Section 131 provides for removal of doubts. Section 134 provides for removal of difficulties. Section 132 empowers the Central Government to make Rules by notification to carry out the provisions of the Scheme. Section 133 empowers the Central Board of Indirect Taxes to issue orders, instructions etc. Section 135 provides for protection to the Officers. 25. Thus, perusal of the provisions of the Scheme briefly noted above, shows that the Scheme is a complete Code in itself. In substance, it is a scheme for recovery of duty/indirect tax to unlock the frozen assets and recover the tax arrears at a discounted amount. Thus, \"Sabka Vishwas Scheme\", although a beneficial scheme for a declarant, is statutory in nature which has been enacted with the object and purpose to minimise the litigation and to realise the arrears of tax by way of settlement at discounted amount in an expeditious manner. In other words the scheme is a step towards the settlement of outstanding disputed tax liability. 26. The discussion made in the foregoing paragraphs leaves no manner of doubt that the petitioner/declarant could avail benefit of the \"Sabka Vishwas Scheme\" only in accordance with the provisions of the Scheme. Section 125(1)(h) of the Act 2019/\"Sabka Vishwas Scheme\" has specifically excluded persons seeking to make declarations with respect to excisable goods set forth in the Fourth Schedule to the Central Excise Act, 1944. Undisputedly, S.K.O. is an excisable goods set forth in the Fourth Schedule to the Act, 1944. The petitioner was not eligible to make a declaration under the \"Sabka Vishwas Scheme\" with respect to \"S.K.O.\". Therefore, non acceptance of the declaration of the petitioner by the respondents does not suffer from any manifest error of law. 27. For all the reasons aforestated, we do not find any merit in this writ petition. Consequently, the Writ Petition fails and is hereby dismissed. Order Date :- 08.12.2020/vkg",
        "91090158": "REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 590 OF 2015 JAYANTILAL VERMA \u2026Appellant Versus STATE OF M.P. (Now Chhattisgarh) \u2026Respondent JUDGMENT SANJAY KISHAN KAUL, J. 1. On the fateful day of 24.8.1999, one Sahodara Bai was found dead on a cot in her matrimonial home located in village Uslapur, District Rajanandgaon, M.P. (now Chhattisgarh). A marg intimation was lodged with the police at the behest of her brother, one Kishore Kumar, who Signature Not Verified Digitally signed by alleged that he had returned to village Uslapur to see his sister, where he Anita Malhotra Date: 2020.11.19 18:45:14 IST Reason: was informed by her in-laws that she had died. He related a prior incident from a few days ago alleging that on 19.8.1999, the deceased had returned to her maternal home to village Baiharsari stating that she had been harassed at the hands of her in-laws for the last 6-7 months. The cause for harassment was stated to be that the appellant herein (her husband) had a brother who lived separately and the in-laws would beat and harass her if she attempted to speak to the wife of the brother of the appellant herein. The endeavour of reconciliation took place when Kishore Kumar along with another brother, Lochan, had brought the deceased back to her matrimonial home. Even at that stage, on being asked whether they wanted her to live with them, the in-laws responded that they will see for a few days and then decide. The deceased thereafter stayed back at her matrimonial home. 2. A postmortem was conducted on the body and FIR No.72/99 came to be registered at P.S. Bodla, District Kawargha on 29.8.1999 arraying the appellant herein, his father, one Lalchand and mother, one Ahiman Bai as accused for offences punishable under Sections 302 read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as the \u2018IPC\u2019). The FIR is stated to have been registered at the behest of one K.P.S. Paikara, the SHO of P.S. Bodla, who relayed the abovementioned information from the marg intimation and also elaborated on the relationship of the deceased and the appellant herein along with the findings of the postmortem report. The marriage between the appellant herein and the deceased had taken place about 8 years prior to the incident and there was a son born, who was only a few months old. The appellant herein, along with the deceased was staying with his parents. The post mortem report stated that the cause of death was asphyxia due to strangulation, and the nature of death was possibly homicidal. On completion of investigation, Chargesheet No. 64/99 was filed and charges were framed by the Sessions Court in Sessions Trial No.165/1999, arraying the appellant herein and his parents as accused. The version given by the accused in their statements under Section 313 Code of Criminal Procedure, 1973 (hereinafter referred to as the \u2018Cr.P.C.\u2019) was that on the morning of the incident all the three accused had gone to the fields, while only the deceased remained at home. Lalchand stated that after taking a bath in the pond, when he returned, he discovered the deceased lying dead in her cot. Thereafter he called the appellant herein and his wife, Ahiman Bai, who were still in the fields. No evidence was led in this regard. 3. The prosecution led evidence of 9 witnesses to establish their case. Five of these witnesses turned hostile \u2013 PW-2 (Lochan), brother of the deceased, PW-3 (Mukund), PW-4 (Jagdev), PW-5 (Pitambar Verma) and PW-6 (Ghasiya). The case of the prosecution was, thus, based on the testimonies of the remaining witnesses, i.e., PW-1, Kishore Kumar, the brother of the deceased and PW-7, Rajendra Chauhan, who prepared the site plan, PW-8, K.P.S. Paikara, Investigating Officer and PW-9, Dr. M.S. Bachkar, who conducted the postmortem. Thus, effectively the case was based on the testimony of PW-1, apart from the testimony of the doctor who conducted the postmortem. 4. The Sessions Court held all the three accused persons guilty of offences punishable under Section 302 of the IPC, in terms of the judgment dated 21.7.2000. 5. The finding of the Sessions Court was based on the cause of death being asphyxia due to strangulation. The testimony of the doctor, PW-9, was relied upon to come to the conclusion that the death was homicidal as it was a result of strangulation. The possibility of any other manner of death was explored by the court, i.e., thieves killing the deceased in order to snatch a chain from her neck. This was ruled out as the incident took place in the house, which in turn was surrounded by other houses on three sides and no commotion was heard. Further, no crime of theft had been reported in the recent past. Next, the possibility of death caused by a snakebite was explored. This was owing to the testimony of PW-1, who had stated, that upon finding his sister dead and enquiring as to what had happened, Lalchand, father of appellant herein had stated that she had died of a snakebite. Court noted that the postmortem did not indicate any symptom of a snake bite as there was no mark or any poisoning detected in the body. The suicide theory was also ruled out as there were scratch marks found on her neck. The conclusion was, thus, based on circumstantial evidence to convict the accused. All the three accused preferred an appeal before the High Court, being Criminal Appeal No.1930/2000. In the course of the pendency of the appeal, Lalchand, the father-in-law of the deceased passed away. The High Court concluded that there was no legally admissible evidence to convict the mother-in-law of the deceased, and hence she was acquitted. However, the conviction of the appellant herein was upheld by the High Court. 6. The appellant herein filed the present appeal in which leave was granted on 30.3.2015. 7. It would be appropriate to note that there was some improvement in the statement of PW-1 to the extent that he had never mentioned Lalchand\u2019s explanation of the death of the deceased by snake bite in the earlier statement. While this was noted by the Trial Court, all other aspects were found to be consistent with his earlier statements. The testimony of PW-1 as a whole was found to be natural. It was also noted that there was an absence of any prior animosity between PW-1 and the family of the appellant herein. PW-1, incidentally, was the stepbrother of the deceased, while PW-2, who turned hostile was her real brother. The cause of witnesses turning hostile, as per the Trial Court, was that PW-2 was influenced on account of subsisting family relationship, as the daughter of Lalchand (sister of the appellant herein) was married to the brother of PW-2. 8. The circumstantial evidence was examined closely as that could be the only basis of conviction, and it was found that there was a complete chain to prove the guilt of the accused. The visit of the deceased to her maternal home, her statement regarding the ill-treatment by her in-laws to her brother, PW-1, her being taken to the matrimonial home by PW-1 along with another brother, Lochan, the discussion between PW-1 and Lalchand and finally the cause of death being homicidal were all circumstances examined to establish guilt of the accused. The Trial Court held that after the murder, Lalchand sent his wife and the appellant herein to the fields, while he himself went to the pond to bathe and when he returned to his house, he raised a hue and cry, pretending to be shocked by the sudden death of the deceased. There was a possibility of death being caused by strangulation by an article made of a chain-like material but the same had likely been destroyed. The Trial Court did castigate the manner of prosecution. 9. The High Court in the given situation, apart from relying on the testimony of PW-1, turned its attention to the postmortem report. In this context, it was noted that there was blood oozing from both nostrils and mouth of the deceased, there was swelling over the right cheek, marks of ecchymosis at epiglottis region and back of the neck, bruise present at left axillary of cheek and there was depression mark of a mala on the left side of the neck. It went on to state that since the incident had taken place inside the privacy of the house, the onus was on the persons residing in the house, to give an explanation. In such situations, it was noted that it is difficult for the prosecution to lead any direct evidence to establish the guilt of the accused. In this regard, the High Court referred to Section 106 of the Indian Evidence Act, 1872 (hereinafter referred to as the \u2018Evidence Act\u2019), which reads as under: \u201c106. Burden of proving fact especially within knowledge.\u2014 When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.\u201d It, thus, opined that in such cases, while the initial burden to establish the case would be upon the prosecution, it would be of a relatively light character. There would be a corresponding a burden on the inmates of the house to give cogent explanation as to how the crime was committed. They could not get away by keeping quiet and offering no explanation. 10. In the aforesaid contours of the factual situation we have examined the submissions of the learned counsels for the parties. 11. The submission of the learned counsel for the appellant herein was that the circumstantial evidence was not of such a nature that it could be said to be conclusive, and the chain of evidence was not complete to pronounce the appellant herein guilty. The previous allegations of cruelty had not been proved as there was no prior complaint of harassment lodged by the deceased or her relatives and that the testimony of PW-1 is further discredited, as he is the stepbrother and not the real brother of the deceased. It was further argued that the statements of the witnesses were not recorded prior to 29.8.1999 i.e., for five days from the date of incident, and even the site plan prepared by PW-7 was not proved. There was stated to be no intention or motive attributable to the appellant herein to kill the deceased and the prosecution could not absolve itself of the burden to prove the case beyond reasonable doubt. 12. The testimony of PW-9, Dr. Bachkar was assailed as there was no formation of a firm opinion regarding the nature of death as it was mentioned that it \u201cmay\u201d have been homicidal. There was stated to be a mark on the left side of the neck and but no such mark existed around the neck. He had stated that the mark could have been caused by pressing the necklace on the neck, but asphyxia was not possible due to the same. No recovery of necklace had taken place from the appellant herein and the weapon of crime was never recovered. Lastly, it was contended that on the same evidence, the mother of the appellant herein had been acquitted. 13. The appellant herein is stated to have served 16 years and 9 months of his sentence but some dispute was raised about the actual time he had spent in jail by learned counsel for the respondent State, though it was conceded that cases for release were considered after 14 years of serving the actual sentence. 14. Learned counsel for the respondent State relied upon the absence of any explanation by the accused regarding the cause of death, even though the death had occurred in the privacy of the matrimonial home. The appellant herein and his family are stated to be the only residents, where the body of the deceased was found and that itself cast a burden on them within the meaning of Section 106 of the Evidence Act. 15. In order to support the aforesaid proposition, reliance was placed on the following judgments: a. Amarsingh Munnasingh Suryawanshi v. State of Maharashtra1: In this case, the death had occurred in the matrimonial home but the conviction was supported by a dying declaration. b. Raj Kumar Prasad Tamarkar v. State of Bihar & Anr.2: Here, the weapon of offence, a gun, was recovered from the room of the accused and the dead body was found on the terrace attached to the private room of the accused. c. Trimukh Maroti Kirkan v. State of Maharashtra 3: In this case, the body of the deceased was found in the matrimonial home and the cause of death was strangulation, though the defence pleaded it to be a case of a snakebite. 16. The aforesaid, would thus, show that the third case best fits the factual scenario in the present case. 17. Learned counsel for the State emphasised that the other witnesses turning hostile cannot be a ground itself to acquit the accused and the testimony of PW-1 was consistent and sufficient to convict the appellant herein. In this behalf, a reference was made to Section 134 of the Evidence Act, which reads as under: (2007) 15 SCC 455 (2007) 10 SCC 433 (2006) 10 SCC 681 \u201c134. Number of witnesses. \u2013 No particular number of witnesses shall in any case be required for the proof of any fact.\u201d 18. It was, thus, contended that mere presence or absence of a large number of witnesses cannot be the basis of conviction. It is the quality of evidence and not the number of witnesses, which is relevant. In this behalf, a reference was made to the following cases: a. Yanob Sheikh Alias Gagu v. State of West Bengal4, where it was observed as under: \u201c20. We must notice at this stage that it is not always the quantity but the quality of the prosecution evidence that weighs with the Court in determining the guilt of the accused or otherwise. The prosecution is under the responsibility of bringing its case beyond reasonable doubt and cannot escape that responsibility. In order to prove its case beyond reasonable doubt, the evidence produced by the prosecution has to be qualitative and may not be quantitative in nature. In the case of Namdeo v. State of Maharashtra [(2007) 14 SCC 150], the Court held as under: \u201c28. From the aforesaid discussion, it is clear that Indian legal system does not insist on plurality of witnesses. Neither the legislature (Section 134 of the Evidence Act, 1872) nor the judiciary mandates that there must be particular number of witnesses to record an order of conviction against the accused. Our legal system has always laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in (2013) 6 SCC 428 spite of testimony of several witnesses if it is not satisfied about the quality of evidence. The bald contention that no conviction can be recorded in case of a solitary eyewitness, therefore, has no force and must be negatived.\u201d b. Gulam Sarbar v. State of Bihar (Now Jharkhand) 5 wherein the Court relied on the same aforementioned principle. 19. On consideration of the evidence led by the prosecution and considering the concurrent findings by the two courts qua the appellant herein we are unable to find any reason to interfere with the judgment of the courts below. 20. It is no doubt true that a large number of witnesses turned hostile and the Trial Court was also not happy with the manner of prosecution conducted this case. But that is not an unusual event in the long drawn out trials in our country and in the absence of any witness protection regime of substance, one has to examine whatever is the evidence which is capable of being considered, and then come to a finding whether it would suffice to convict the accused. 21. The rationale adopted for coming to the conclusion behind the reason for the real brother of the deceased turning hostile while step brother stood his ground is also obvious and correctly appreciated, i.e., to (2014) 3 SCC 401 preserve the close family ties which continued to exist by marriage in the instant case, in view of the siblings of the deceased and appellant herein being married. In the Indian context, there exists a continued relationship between two families wherein the daughter-in-law comes from another house. 22. We are conscious that the case of the prosecution rests only on the testimony of PW-1 and the medical evidence. The statement of PW-1 was consistent and cogent except to the extent that in the earlier statement he had not mentioned the factum of the death being attributed to snakebite. However, that itself would not nullify the remaining part of his testimony. In fact, the said witness did not back out from the statement, but could not state the reason why the police did not record it in the FIR though it was mentioned. 23. The doctor opined the cause of death to be asphyxia due to strangulation. Thereafter, he has stated that nature may be homicidal. This was so stated because asphyxia being the cause of death, the doctor himself could not have conclusively said whether it was homicidal or suicidal. It was also voluntarily opined, that there had to be a minimum of five minutes of forceful pulling to cause the death. 24. In our view, the most important aspect is where the death was caused and the body found. It was in the precincts of the house of the appellant herein where there were only family members staying. The High Court also found that the location of the house and the surrounding buildings was such that there was no possibility of somebody from outside coming and strangulating the deceased and that too without any commotion being caused or any valuable/jewellery missing. 25. We are confronted with a factual situation where the appellant herein, as a husband is alleged to have caused the death of his wife by strangulation. The fact that the family members were in the home some time before is also quite obvious. No explanation has been given as to how the wife could have received the injuries. This is a strong circumstance indicating that he is responsible for commission of the crime.6 The appellant herein was under an obligation to give a plausible explanation regarding the cause of the death in the statement recorded under Section 313 of the Cr.P.C. and mere denial could not be the answer in such a situation. 26. We, thus, find no reason to interfere with the impugned judgment. Trimukh Maroti Kirkan v. State of Maharashtra (supra). The appeal is accordingly dismissed leaving the parties to bear their own costs. 27. We, however, direct the respondent State to examine whether the appellant herein has completed 14 years of actual sentence or not and if it is so, his case should be examined within a maximum period of two months for release in accordance with norms. If not, the exercise be undertaken within the same time on completion of 14 years of actual sentence. ...\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026J. [Sanjay Kishan Kaul] ...\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026J. [Hrishikesh Roy] New Delhi. November 19, 2020.",
        "189745935": "REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 3964-71 OF 2007 M/S BANGALORE CLUB \u2026Appellant VERSUS THE COMMISSIONER OF WEALTH TAX & ANR. ...Respondents JUDGMENT R.F. Nariman, J. 1. In the year of grace 1868, a group of British officers banded together to start the Bangalore Club. In the year of grace 1899, one Lt. W.L.S. Churchill was put up on the Club\u2019s list of defaulters, which numbered 17, for an amount of Rs.13/- being for an unpaid bill of the Club. The \u201cBill\u201d never became an \u201cAct\u201d. Till date, this amount remains unpaid. Lt. W.L.S. Churchill went on to become Sir Winston Leonard Spencer Churchill, Prime Minister of Great Britain. And the Bangalore Club continues its Signature Not Verified Digitally signed by Nidhi Ahuja Date: 2020.09.08 17:47:19 IST Reason: mundane existence, the only excitement being when the tax collector knocks at the door to extract his pound of flesh. 2. Fast forward now from British India to free India and we come to assessment years 1981-82 and 1984-85 upto 1990-91. The question for determination in these appeals is whether Bangalore Club is liable to pay wealth tax under the Wealth Tax Act. The order of assessment dated 3rd March, 2000, passed by the Wealth Tax Officer, Bangalore, referred to the fact that Bangalore Club is not registered as a society, a trust or a company. The assessing officer, without further ado, \u201cafter a careful perusal\u201d of the rules of the Club, came to the conclusion that the rights of the members are not restricted only to user or possession, but definitely as persons to whom the assets of the Club belong. After referring to Section 167A, inserted into the Income Tax Act, 1961, and after referring to Rule 35 of the Club Rules, the assessing officer concluded that the number of members and the date of dissolution are all uncertain and variable and therefore indeterminate, as a result of which the Club was liable to be taxed under the Wealth Tax Act. By a cryptic order dated 25th October, 2000, the CIT (Appeals) dismissed the appeal against the aforesaid order. On the other hand, by a detailed order passed by the Income Tax Appellate Tribunal, Bangalore dated 7th May, 2002, the Appellate Tribunal first referred to the Objects of the Bangalore Club, which it described as a \u201csocial\u201d Club, as follows: \u201c1. To provide for its Members, social, cultural, sporting, recreational and other facilities; 2. To promote camaraderie and fellowship among its members. 3. To run the Club for the benefit of its Members from out of the subscriptions and contributions of its member. 4. To receive donations and gifts without conditions for the betterment of the Club. The General Committee may use its discretion to accept sponsorships for sporting Areas 5. To undertake measures for social service consequent on natural calamities or disasters, national or local. 6. To enter into affiliation and reciprocal arrangements with other Clubs of similar standing both in India and abroad. 7. To do all other acts and things as are conducive or incidental to the attainment of the above objects. Provided always and notwithstanding anything hereinafter contained, the aforesaid objects of the Club, shall not be altered, amended, or modified, except, in a General Meeting, for which the unalterable quorum shall not be less than 300 members. Any resolution purporting to alter, amend, or modify the objects of the Club shall not be deemed to have been passed, except by a two thirds majority of the Members present and voting thereon.\u201d 3. The Tribunal then set out Rule 35 of the Club Rules, which stated as follows: \u201cRULE 35 APPOINTMENT OF LIQUIDATORS: If it be resolved to wind up, the Meeting shall appoint a liquidator or liquidators and fix his or their remuneration. The liquidation shall be conducted as nearly as practicable in accordance with the laws governing voluntary liquidation under the Companies Act or any statutory modifications thereto and any surplus assets remaining after all debts and liabilities of the Club have been discharged shall be divided equally amongst the Members of the Club as defined in Rules 6.1(i), 6.1(ii), 6.1 (iii), 6.2(i), 6.2(ii), 6.2(iii), 6.2(vii), 6.2(viii) and 6.2(ix). 4. After setting out Section 21AA of the Wealth Tax Act, the Tribunal then referred to this Court\u2019s judgment in CIT v. Indira Balkrishna (1960) 39 ITR 546 and held: \u201c9. From the facts of the case, it is clear that members who have joined here have not joined to earn any income or to share any profits. They have joined to enjoy certain facilities as per the objects of the club. The members themselves are contributing to the receipts of the club. The members themselves are contributing to the receipts of the club (sic) and what is the difference between the Income and Expenditure can be said to be only surplus and not income of the assessee-club. It is an accepted principle that principle of mutuality is applicable to the assessee club and hence not liable to income-tax also. At the most, this. may be called the \"Body of Individuals\" but not an AOP formed with an intention to earn income.\u201d 5. It then referred to a CBDT Circular dated 11th January, 1992, explaining the pari materia provision of Sections 167A in the Income Tax Act, and therefore inferred, from a reading of the aforesaid Circular, that Section 21AA would not be attracted to the case of the Bangalore Club. It was then held, on a reading of Rule 35, that since members are entitled to equal shares in the assets of the Club on winding-up after paying all debts and liabilities, the shares so fixed are determinate also making it clear that Section 21AA would have no application to the facts of the present case. As a result, the Appellate Tribunal allowed the appeal and set aside the orders of the Assessing Officer and the CIT (Appeals). 6. Against this order, by a cryptic order of the High Court, the decision in CWT v. Club 197 ITR Karnataka 609 was stated to cover the facts of the present case, as a result of which the question raised was decided in favour of the revenue by the impugned order dated 23rd January, 2007. A Review Petition filed against the aforesaid order was dismissed on 19th April, 2007. 7. Shri Nikhil Nayyar, learned counsel appearing on behalf of the appellant, referred to the object for the enactment of Section 21AA of the Wealth Tax Act and then took us through the provisions of Section 21AA. According to him, it is settled law by several judgments of this Court that \u201cassociation of persons\u201d in the context of a taxing statute would only refer to persons who band together with a common object in mind \u2013 the common object being to create income and make a profit. As it is clear that the present Club is a social club where the members do not band together for any commercial or business purpose of making income or profits, the section does not get attracted at all. Further, in any case, as a without prejudice argument, it is clear that the individual shares of the members of the said association in income or assets of the association must be indeterminate or unknown to attract the provision of Sec. 21AA. He took us to the Appellate Tribunal judgment and to Rule 35, in particular, to argue that since on winding-up all members get an equal share in the surplus that remains after all debts and liabilities are dealt with, their shares cannot be said to be indeterminate or unknown. For this purpose, he cited a number of judgments of the High Courts. He then adverted to an explanation that was added to the definition of \u201cperson\u201d contained in Section 2(31) of the Income Tax Act, which made it clear that on and from 1st April, 2002, an association of persons need not be persons who band together for the object of deriving income or profits. This explanation does not apply to the Wealth Tax Act, and, in any case, given the fact that the assessment years in question are way before 1st April, 2002, the law laid down by this Court in several judgments on association of persons would directly apply. 8. To counter these arguments, Shri Vikramjit Banerjee, learned Additional Solicitor General, referred to Rule 35 of the Club Rules and relied heavily upon Section 21AA(2). According to Shri Banerjee, sub-section (2) deals with a situation where the association of persons is dissolved, and given Rule 35, the Section, therefore, would directly apply to the Bangalore Club. He then referred to this Court\u2019s judgment in Bangalore Club v. CIT (2013) 5 SCC 509, in which, for income tax purposes, the Bangalore Club was assessed as an association of persons. This being the case, it cannot be that for income tax purposes, the Bangalore Club is treated as an association of persons but for wealth tax purposes, it cannot be so treated. He then referred to this Court\u2019s judgment in CWT v. Ellis Bridge Gymkhana (1998) 1 SCC 384 in order to support the impugned judgment of the High Court which, according to him, correctly followed Chikmagalur Club\u2019s case (supra) which, in turn, only relied upon this Court\u2019s judgment in Ellis Bridge Gymkhana (supra). He also stated that the finding of the Assessing Officer that the shares of a fluctuating body of members would be indeterminate is correct and therefore, even on this ground it is clear that the High Court judgment can be supported. 9. Having heard learned counsel for both sides, it is important to first advert to Section 3, which is the charging section in the Wealth Tax Act. Section 3(1) states as follows: \u201c3. Charge of wealth-tax \u2014 (1) Subject to the other provisions contained in this Act, there shall be charged for every assessment year commencing on and from the first day of April, 1957 but before the first day of April, 1993, a tax (hereinafter referred to as wealth-tax) in respect of the net wealth on the corresponding valuation date of every individual, Hindu undivided family and company at the rate or rates specified in Schedule I.\u201d 10. It will be noticed that only three types of persons can be assessed to wealth tax under Section 3 i.e. individuals, Hindu undivided families and companies. It is clear that if Section 3(1) alone were to be looked at, the Bangalore Club neither being an individual, nor a HUF, nor a company cannot possibly be brought into the wealth tax net under this provision. 11. By the Finance Bill of 1981, Section 21AA was introduced into the Wealth Tax Act. The explanatory notes on the introduction of Section 21AA were as follows: \u201c21.1 Under the Wealth Tax Act, 1957, individuals and Hindu Undivided Families are taxable entities but an association of persons is not charged to wealth tax on its net wealth. Where an individual or a Hindu Undivided Family is a member of an association of persons, the value of the interest of such member in the association of persons is determined in accordance with the provisions of the rules and is includible in the net wealth of the member. 21.2 Instances had come to the notice of the Government where certain assessees had resorted to the creation of a large number of associations of persons without specifically defining the shares of the members therein with a view to avoiding proper tax liability. Under the existing provisions, only the value of the interest of the member in the association which is ascertainable is includible in his net wealth. Accordingly, to the extent the value of the interest of the member in the association cannot be ascertained or is unknown, no wealth tax is payable by such member in respect thereof. 21.3 In order to counter such attempts at tax avoidance through the medium of multiple associations of persons without defining the shares of the members, the Finance Act has inserted a new Section 21-AA in the Wealth Tax Act to provide for assessment in the case of associations of persons which do not define the shares of the members in the assets thereof. Sub-section (1) provides that where assets chargeable to wealth tax are held by an association of persons (other than a company or a cooperative society) and the individual shares of the members of the said association in income or the assets of the association on the date of its formation or at any time thereafter, are indeterminate or unknown, wealth tax will be levied upon and recovered from such association in the like manner and to the same extent as it is leviable upon and recoverable from an individual who is a citizen of India and is resident in India at the rates specified in Part I of Schedule I or at the rate of 3 per cent, whichever course is more beneficial to the Revenue.\u201d 12. With this object in mind, Section 21AA was enacted w.e.f. 1st April, 1981 as follows: \u201c21AA. Assessment when assets are held by certain associations of persons \u2014 (1) Where assets chargeable to tax under this Act are held by an association of persons, other than a company or cooperative society or society registered under the Societies Registration Act, 1860 (21 of 1860) or under any law corresponding to that Act in force in any part of India, and the individual shares of the members of the said association in the income or assets or both of the said association on the date of its formation or at any time thereafter are indeterminate or unknown, the wealth-tax shall be levied upon and recovered from such association in the like manner and to the same extent as it would be leviable upon and recoverable from an individual who is a citizen of India and resident in India for the purposes of this Act. (2) Where any business or profession carried on by an association of persons referred to in subsection (1) has been discontinued or where such association of persons is dissolved, the Assessing Officer shall make an assessment of the net wealth of the association of persons as if no such discontinuance or dissolution had taken place and all the provisions of this Act, including the provisions relating to the levy of penalty or any other sum chargeable under any provisions of this Act, so far as may be, shall apply to such assessment. (3) Without prejudice to the generality of the provisions of sub-section (2), if the Assessing Officer or the Deputy Commissioner (Appeals) or the Commissioner (Appeals) in the course of any proceedings under this Act in respect of any such association of persons as is referred to in sub- section (1) is satisfied that the association of persons was guilty of any of the acts specified in section 18 or section 9 18A, he may impose or direct the imposition of a penalty in accordance with the provisions of the said sections. (4) Every person who was at the time of such discontinuance or dissolution a member of the association of persons, and the legal representative of any such person who is deceased, shall be jointly and severally liable for the amount of tax, penalty or other sum payable, and all the provisions of this Act, so far as may be, shall apply to any such assessment or imposition of penalty or other sum. (5) Where such discontinuance or dissolution takes place after any proceedings in respect of an assessment year have commenced, the proceedings may be continued against the persons referred to in sub-section (4) from the stage at which the proceedings stood at the time of such discontinuance or dissolution, and all the provisions of this Act shall, so far as may be, apply accordingly.\u201d 13. It can be seen that for the first time from 1st April, 1981, an association of persons other than a company or cooperative society has been brought into the tax net so far as wealth tax is concerned with the rider that the individual shares of the members of such association in the income or assets or both on the date of its formation or at any time thereafter must be indeterminate or unknown. It is only then that the section gets attracted. 14. The first question that arises is as to what is the meaning of the expression \u201cassociation of persons\u201d which occurs in Section 21AA. In an early judgment of this Court where the expression \u201cassociation of persons\u201d occurred in the Income Tax Act, 1922 \u2013 a cognate tax statute, this Court in CIT v. Indira Balkrishna (supra) posed question no.3 as follows: \u201c(3) Whether on the facts and in the circumstances of the case the Tribunal was right in holding that the assessment made on the three widows of Balkrishna Purushottam Purani in the status of an association of persons is legal and valid in law?\u201d 15. After referring to the amendments made in the Income Tax Act speaking of \u201cassociation of persons\u201d and \u201cassociation of individuals\u201d, this Court went on to hold: \u201c8\u2026In the absence of any definition as to what constitutes an association of persons, we must construe the words in their plain ordinary meaning and we must also bear in mind that the words occur in a section which imposes a tax on the total income of each one of the units of assessment mentioned therein including an association of persons. The meaning to be assigned to the words must take colour from the context in which they occur\u2026 9. It is enough for our purpose to refer to three decisions: In re, B.N. Elias [(1935) 3 ITR 408]; CIT v. Laxmidas Devidas [(1937) 5 ITR 584]; and In re. Dwaraknath Harishchandra Pitale [(1937) 5 ITR 716]. In B.N. Elias Derbyshire, C.J. rightly pointed out that the word \u201cassociate\u201d means, according to the Oxford dictionary, \u201cto join in common purpose, or to join in an action\u201d. Therefore, an association of persons must be one in which two or more persons join in a common purpose or common action, and as the words occur in a section which imposes a tax on income, the association must be one the object of which is to produce income profits or gains. This was the view expressed by Beaumont, C.J. in CIT v. Laxmidas Devidas at p. 589 and also in Re. Dwaraknath Harishchandra Pitale. In re. B.N. Elias [(1935) III ITR 408] Costello, J. put the test in more forceful language. He said: \u201cIt may well be that the intention of the legislature was to hit combinations of individuals who were engaged together in some joint enterprise but did not in law constitute partnership\u2026. When we find \u2026. that there is a combination of persons formed for the promotion of a joint enterprise \u2026. then I think no difficulty arise in the way of saying that these persons did constitute an association\u2026.\u201d 10. We think that the aforesaid decisions correctly lay down the crucial test for determining what is an association of persons within the meaning of Section 3 of the Income Tax Act, and they have been accepted and followed in a number of later decisions of different High Courts to all of which it is unnecessary to call attention. It is, however, necessary to add some words of caution here. There is no formula of universal application as to what facts, how many of them and of what nature, are necessary to come to a conclusion that there is an association of persons within the meaning of Section 3; it must depend on the particular facts and circumstances of each case as to whether the conclusion can be drawn or not.\u201d 16. Likewise, in G. Murugesan & Brothers v. CIT 88 ITR 432 (1973), this Court referred with approval to Indira Balakrishna (supra) and then held: \u201c11. For forming an \u201cAssociation of Persons\u201d, the members of the association must join together for the purpose of producing an income. An \u201cAssociation of Persons\u201d can be formed only when two or more individuals voluntarily combine together for a certain purpose. Hence volition on the part of the member of the association is an essential ingredient. It is true that even a minor can join an \u201cAssociation of Persons\u201d if his lawful guardian gives his consent. In the case of receiving dividends from shares, where there is no question of any management, it is difficult to draw an inference that two more shareholders functioned as an \u201cAssociation of Persons\u201d from. The mere fact that they jointly own one or more shares, and jointly receive the dividends declared those circumstances do not by themselves go to show that they acted as an \u201cAssociation of Persons\u201d. \u201c 17. These judgments have since been referred to with approval in Meera and Co. v. CIT (1997) 4 SCC 677 (see paras 19 and 20) and Ramanlal Bhailal Patel v. State of Gujarat (2008) 5 SCC 449 (see paragraph 28). It may be mentioned in passing at this stage that under the Income Tax Act an explanation has been added to the definition of \u201cperson\u201d contained in Section 2(31), sub-clause (v) of which includes \u201can association of persons or a body of individuals, whether incorporated or not\u201d. The explanation inserted by amendment, which is w.e.f. 1st April, 2002, is as follows: \u201cExplanation.\u2014For the purposes of this clause, an association of persons or a body of individuals or a local authority or an artificial juridical person shall be deemed to be a person, whether or not such person or body or authority or juridical person was formed or established or incorporated with the object of deriving income, profits or gains;\u201d 18. Obviously, therefore, after 1st April, 2002, the ratio of the aforesaid judgments has been undone by this explanation insofar as income tax is concerned. 19. It is well-settled that when Parliament used the expression \u201cassociation of persons\u201d in Section 21AA of the Wealth Tax Act, it must be presumed to know that this expression had been the subject matter of comment in a cognate allied legislation, namely, the Income Tax Act, as referring to persons banding together for a common purpose, being a business purpose in the context of a taxation statute in order to earn income or profits. This presumption is felicitously referred to in the following judgments. 20. In P. Vajravelu Mudaliar v. Special Deputy Collector for Land Acquisition (1965) 1 SCR 614, this Court had to decide whether the 4th Amendment to the Constitution of India, which amended Article 31(2) of the Constitution, made any change in whether compensation being a just equivalent in money to be paid for acquisition continued to be a just equivalent or something less. This Court held that since the expression \u201ccompensation\u201d, as interpreted in State of W.B. v. Bela Banerjee 1954 SCR 558, continued even after the 4th Amendment, a just equivalent in terms of money for land acquisition would continue having to be paid. The Court held: \u201c\u2026 Even after the amendment, provision for compensation or laying down of the principles for determining the compensation is a condition for the making of a law of acquisition or requisition. A legislature, if it intends to make a law for compulsory acquisition or requisition, must provide for compensation or specify the principles for ascertaining the compensation. The fact that Parliament used the same expressions, namely, \u201ccompensation\u201d and \u201cprinciples\u201d as were found in Article 31 before the amendment is a clear indication that it accepted the meaning given by this Court to those expressions in Mrs Bela Banerjee case [(1954) SCR 558] . It follows that a legislature in making a law of acquisition or requisition shall provide for a just equivalent of what the owner has been deprived of or specify the principles for the purpose of ascertaining the \u201cjust equivalent\u201d of what the owner has been deprived of. If Parliament intended to enable a legislature to make such a law without providing for compensation so defined, it would have used other expressions like \u201cprice\u201d, \u201cconsideration\u201d etc. In Craies on Statute Law, 6th Edn., at p. 167, the relevant principle of construction is stated thus: \u201cThere is a well-known principle of construction, \u2018that where the legislature used in an Act a legal term which has received judicial interpretation, it must be assumed that the term is used in the sense in which it has been judicially interpreted unless a contrary intention appears.\u201d The said two expressions in Article 31(2) before the Constitution (Fourth Amendment) Act, have received an authoritative interpretation by the highest court in the land and it must be presumed that Parliament did not intend to depart from the meaning given by this Court to the said expressions.\u201d (at page. 626) 21. In Sakal Deep Sahai Srivastava v. Union of India (1974) 1 SCC 338, in the context of the Limitation Act, this Court held: \u201c8. The only question of some difficulty raised before us is whether Article 102 or Article 120 of the Limitation Act of 1908 would apply to the case. After having heard the attractive arguments of Mr Yogeshwar Prasad, we have no doubt that a good deal can be said in favour of the contention that a claim for arrears of salary is distinguishable from a claim for wages. But, our difficulty is that the question appears to us to be no longer open for consideration afresh by us, or, at any rate, it is not advisable to review the authorities of this Court, after such a lapse of time when, despite the view taken by this Court that Article 102 of the Limitation Act of 1908 was applicable to such cases, the Limitation Act of 1963 had been passed repeating the law, contained in Articles 102 and 120 of the Limitation Act of 1908, in identical terms without any modification. The Legislature must be presumed to be cognizant of the view of this Court that a claim of the nature before us, for arrears of salary, falls within the purview of Article 102 of the Limitation Act of 1908. If Parliament, which is deemed to be aware of the declarations of law by this Court, did not alter the law, it must be deemed to have accepted the interpretation of this Court even though the correctness of it may be open to doubt. If doubts had arisen, it was for the Legislature to clear these doubts. When the Legislature has not done so, despite the repeal of the Limitation Act of 1908, and the enactment of the Limitation Act of 1963 after the decisions of this Court, embodying a possibly questionable view, we think it is expedient and proper to overrule the submission made on behalf of the appellant that the correctness of the view adopted by this Court in its decisions on the question so far should be re-examined by a larger Bench.\u201d 22. Likewise, in Diwan Bros. v. Central Bank of India (1976) 3 SCC 800, this Court referred to the well-known dictum of Lord Buckmaster in Barras v. Aberdeen Steam Trawling and Fishing Company 1933 AC 402 and held as under: \u201c22. Apart from the above considerations, it is a well- settled principle of interpretation of statutes that where the Legislature uses an expression bearing a well-known legal connotation it must be presumed to have used the said expression in the sense in which it has been so understood. Craies on Statute Law observes as follows: \u201cThere is a well-known principle of construction, that where the legislature uses in an Act a legal term which has received judicial interpretation, it must be assumed that the term is used in the sense in which it has been judicially interpreted, unless a contrary intention appears.\u201d 23. In Barras v. Aberdeen Steam Trawling and Fishing Company [1933 AC 402, 411] Lord Buckmaster pointed out as follows: \u201cIt has long been a well-established principle to be applied in the consideration of Acts of Parliament that where a word of doubtful meaning has received a clear judicial interpretation, the subsequent statute which incorporates the same word or the same phrase in a similar context must be construed so that the word or phrase is interpreted according to the meaning that has previously been ascribed to it.\u201d Craies further points out that the rule as to words judicially interpreted applies also to words with well-known legal meanings, even though they have not been the subject of judicial interpretation. Thus applying these principles in the instant case it would appear that when the Court Fees Act uses the word \u201cdecree\u201d which had a well-known legal significance or meaning, then the Legislature must be presumed to have used this term in the sense in which it has been understood, namely, as defined in the Code of Civil Procedure even if there has been no express judicial interpretation on this point.\u201d 23. A recent judgment of this Court namely, Shree Bhagwati Steel Rolling Mills v. CCE (2016) 3 SCC 643, refers to the same presumption as follows: \u201c21. It is settled law that Parliament is presumed to know the law when it enacts a particular piece of legislation. The Prevention of Corruption Act was passed in the year 1988, that is long after 1969 when the Constitution Bench decision in Rayala Corpn. [Rayala Corpn. (P) Ltd. v. Director of Enforcement, (1969) 2 SCC 412] had been delivered. It is, therefore, presumed that Parliament enacted Section 31 knowing that the decision in Rayala Corpn. [Rayala Corpn. (P) Ltd. v. Director of Enforcement, (1969) 2 SCC 412] had stated that an omission would not amount to a repeal and it is for this reason that Section 31 was enacted. This again does not take us further as this statement of the law in Rayala Corpn. [Rayala Corpn. (P) Ltd. v. Director of Enforcement, (1969) 2 SCC 412] is no longer the law declared by the Supreme Court after the decision in Fibre Board case [Fibre Boards (P) Ltd. v. CIT, (2015) 10 SCC 333]. This reason therefore again cannot avail the appellant.\u201d 24. This being the case, it is clear that in order to be an association of persons attracting Section 21AA of the Wealth Tax Act, it is necessary that persons band together with some business or commercial object in view in order to make income or profits. The presumption gets strengthened by the language of Sec. 21AA (2), which speaks of a business or profession carried on by an association of persons which then gets discontinued or dissolved. The thrust of the provision therefore, is to rope in associations of persons whose common object is a business or professional object, namely, to earn income or profits. Bangalore Club being a social club whose objects have been referred to by the Appellate Tribunal in this case make it clear that persons who are banded together do not band together for any business purpose or commercial purpose in order to make income or profits. In fact, the nature of these kind of clubs has been set out in Cricket Club of India Ltd v. Bombay Labour Union (1969) 1 SCR 600 as follows: \u201cWhat we have to see is the nature of the activity in fact and in substance. Though the Club is incorporated as a Company, it is not like an ordinary Company constituted for the purpose of carrying on business. There are no shareholders. No dividends are ever declared and no distribution of profits takes place. Admission to the Club is by payment of admission fee and not by purchase of shares. Even this admission is subject to balloting. The membership is not transferable like the right of shareholders. There is the provision for expulsion of a Member under certain circumstances which feature never exists in the case of a shareholder holding shares in a Limited Company. The membership is fluid. A person retains rights as long as he continues as a Member and gets nothing at all when he ceases to be a Member, even though he may have paid a large amount as admission fee. He even loses his rights on expulsion. In these circumstances, it is clear that the Club cannot be treated as a separate legal entity of the nature of a Limited Company carrying on business. The Club, in fact, continues to be a Members' Club without any shareholders and, consequently, all services provided in the Club for Members have to be treated as activities of a self-serving institution.\u201d (at page. 614) This judgment has been referred to with approval recently in State of West Bengal v. Calcutta Club Limited (2019) 13 SCALE 474 at paragraph 28. 25. At this stage, it is important to refer to CWT v. Ellis Bridge Gymkhana, (supra). In this case, the Ellis Bridge Gymkhana, like the Bangalore Club, is an unincorporated club. The assessment years involved in this case are from 1970-71 to 1977-78 i.e. prior to Section 21AA coming into force. Despite the fact that Section 21AA did not apply, this Court referred to Section 21AA as follows: \u201c15. All these provisions go to show that the Wealth Tax Act has been drafted on the same lines as the Indian Income Tax Act, 1922. There is great similarity of wording between the various provisions of the Wealth Tax Act and corresponding provisions of the Indian Income Tax Act, 1922. But in the case of the charging Section 3 of the Wealth Tax Act, the phraseology of the charging Section 3 of the Indian Income Tax Act, 1922 has not been adopted. Unlike Section 3 of the Income Tax Act, Section 19 3 of the Wealth Tax Act does not mention a firm or an association of persons or a body of individuals as taxable units of assessment. 16. The position has been placed beyond doubt by insertion of Section 21-AA in the Wealth Tax Act itself. This amendment was effected by the Finance Act, 1981 with effect from 1-4-1981. It provides for assessment of association of persons in certain special cases and not otherwise.\u201d The Court then went on to hold: \u201c17. It will be seen that assessment as an association of persons can be made only when the individual shares of members of the association in the income or assets or both of the association on the date of its formation or any time thereafter are indeterminate or unknown. It is only in such an eventuality that an assessment can be made on an association of persons, otherwise not. Sub-section (2) of Section 21-AA deals with cases of such associations as mentioned in sub-section (1). That means only association of persons in which individual shares of the members were unknown or indeterminate can be subjected to wealth tax. Sub-section (3) also deals with association of persons referred to in sub-section (1). Sub- sections (4) and (5) deal with some consequences which will follow the members of an association of persons spoken of in sub-section (1) in the case of discontinuance or dissolution. xxx xxx xxx 19. In our view, Section 21-AA far from helping the case of the Revenue directly goes against its contention. An association of persons cannot be taxed at all under Section 3 of the Act. That is why an amendment was necessary to be made by the Finance Act, 1981 whereby Section 21-AA was inserted to bring to tax net wealth of an association of persons where individual shares of the members of the association were unknown or indeterminate.\u201d After referring to the explanatory notes introducing Section 21AA in paragraph 32, the Court then went on to hold: \u201c33. It will appear from this notification that the Central Board of Direct Taxes clearly recognised that the charge of wealth tax was on individuals and Hindu Undivided Families and not on any other body of individuals or association of persons. Section 21-AA has been introduced to prevent evasion of tax. In a normal case, in assessment of an individual, his wealth from every source will be added up and computed in accordance with provisions of the Wealth Tax Act to arrive at the net wealth which has to be taxed. So, if an individual has any interest in a firm or any other non-corporate body, then his interest in those bodies or associations will be added up in his wealth. It is only where such addition is not possible because the shares of the individual in a body holding property is unknown or indeterminate, resort will be taken to Section 21-AA and association of individuals will be taxed as association of persons.\u201d 26. A perusal of this judgment would show that Section 21AA has been introduced in order to prevent tax evasion. The reason why it was enacted was not to rope in association of persons per se as \u201cone more taxable person\u201d to whom the Act would apply. The object was to rope in certain assessees who have resorted to the creation of a large number of association of persons without specifically defining the shares of the members of such associations of persons so as to evade tax. In construing Section 21AA, it is important to have regard to this object. 27. In K P Varghese v. ITO, 1982 (1) SCR 629, what arose for interpretation before the Supreme Court was in the context of capital gains \u2013 as to whether, to attract the applicability of Sec. 52(2) of the Income Tax Act, understatement of consideration is a prerequisite. On a purely literal reading of Sec. 52(2), it would be clear that no such condition has been mentioned. However, this Court, after referring to the object of the section held: \u201cThus it is not enough to attract the applicability of sub- section (2) that the fair market value of the capital asset transferred by the assessee as on the date of the transfer exceeds the full value of the consideration declared in respect of the transfer by not less than 15 per cent of the value so declared, but it is furthermore necessary that the full value of the consideration in respect of the transfer is understated or in other words, shown at a lesser figure than that actually received by the assessee. Sub-section (2) has no application in case of an honest and bona fide transaction where the consideration in respect of the transfer has been correctly declared or disclosed by the assessee, even if the condition of 15 per cent difference between the fair market value of the capital asset as on the date of the transfer and the full value of the consideration declared by the assessee is satisfied.\u201d (at page. 652, 653) 28. The Bangalore Club is an association of persons and not the creation, by a person who is otherwise assessable, of one among a large number of associations of persons without defining the shares of the members so as to escape tax liability. For all these reasons, it is clear that Section 21AA of the Wealth Tax Act does not get attracted to the facts of the present case. 29. However, the impugned judgment of the High Court relies solely upon CWT v. Chikmagalur Club (supra). This case dealt with a club that was registered under the provisions of the Karnataka Societies Registration Act, 1960. After referring copiously to the Appellate Authority\u2019s orders on facts in this case, the Court went on to hold: \u201c10. \u2026 Several High Courts and the Tribunals have taken different view on the question whether a club registered under the provisions of Karnataka Societies Registration Act is exigible to tax under the provisions of the Wealth Tax Act, but in our view, for the present, the issue is now settled by the pronouncement of the Supreme Court in the case of the Commissioner of Wealth Tax v. Ellis Bridge Gymkhana [ 229 ITR 1.] \u2014 wherein it is held that \u2018club is not assessable to wealth tax in assessment years 1970- 1971 to 1977-1978 as an Association of Persons\u2019 and while saying so, the Court has observed that\u2019 the position has been placed beyond doubt by the insertion of Section 21AA in the Wealth Tax Act itself.\u201d For this purpose, paragraph 17 already extracted in the Ellis Bridge Gymkhana case (supra) was referred to by the said judgment. After referring to paragraph 17, the Court then concluded: \u201c13. \u2026 Now that the scope of Section 21AA of the Act has been explained by the Apex Court in Ellies Bridge Gymkhana Club's case-229 ITR 1, we need not dilate much on the scope and interpretation of the said Section. It would be suffice to notice that assessment as an association of persons can be made only, when the individual shares of the members of the association in the income or assets or both of the association on the date of its formation or any time thereafter are indeterminate or unknown can be subjected to wealth tax. In the present case, the assessee is a club registered under the provisions of the Karnataka Societies Registration Act and had declared \u2018nil\u2019 wealth and had claimed that it is not susceptible to the provision of wealth Tax Act, since it is only an association of persons providing recreation facilities to its members. This claim, in our view, is rightly rejected by both the assessing authority as well as by the first appellate authority on the ground that the assessee is an association of persons and the members are the owners of the assets and the individual shares of the members in the owners of the assets and the individual shares of the members in the income or assets or both of the association on the date of formation or any time thereafter or indeterminate or unknown and accordingly, has subjected the assessee to wealth tax.\u201d 30. What will be noticed is that the High Court in Chikmagalur Club (supra) only referred to paragraph 17 and omitted to refer to paras 19, 32 and 33 of the Ellis Bridge Gymkhana judgment (supra) which have been referred to by us hereinabove. If all these paragraphs would have been referred to, what would have been clear is that a social club like the Chikmagalur Club could not possibly be said to be an association of persons regard being had to the object sought to be achieved by enacting Section 21AA, which is a Section enacted in order to prevent tax evasion. As has been pointed out by us hereinabove, the Section was not introduced to add one more category to the category of taxable persons \u2013 that could have been done by amending the charging section i.e. Section 3(1) of the Wealth Tax Act. Further, the High Court judgment is completely oblivious of the line of judgments starting with Indira Balakrishna\u2019s case (supra) by which \u201cassociation of persons\u201d must mean persons who are banded together with a common object \u2013 and, in the context of a taxation statute, common object being a business object being to earn income or profits. This judgment does not refer to Indira Balakrishna (supra) and the judgments following it at all. For all these reasons, the judgment in CWT v. Chikmagalur Club (supra) not being correctly decided, is overruled. Equally, the High Court judgment which rests solely upon the decision in Chikmagalur Club\u2019s case (supra) has no legs to stand. 31. We now come to some of the points raised by the learned Additional Solicitor General, Shri Banerjee. The submission that Section 21AA (2) which deals with dissolution of an association of persons and the fact that on dissolution under Rule 35 of the Bangalore Club, members get an equal share would show first, that the Bangalore Club is an association of persons; and second, that the member\u2019s share in its income and assets are indeterminate or unknown, is an argument which has to be stated to be rejected. First and foremost, sub-section (2) begins with the words \u201cany business or profession carried on\u201d by an association of persons. No business or profession is carried on by a social members club. Further, the association of persons mentioned in sub-section (1) must be persons who have banded together for a business objective \u2013 to earn profits \u2013 and if this itself is not the case, then sub-section (2) cannot possibly apply. Insofar as Rule 35 is concerned, again what is clear is that on liquidation, any surplus assets remaining after all debts and liabilities of the club has been discharged, shall be divided equally amongst all categories of members of the club. This would show that \u201cat any time thereafter\u201d within the meaning of Section 21AA (1), the members\u2019 shares are determinate in that on liquidation each member of whatsoever category gets an equal share. 32. The judgments cited by Shri Nikhil Nayyar in so far as this aspect is concerned, have no direct relevance. The judgment in CWT v. Rama Varma Club 226 ITR 898 and CWT v. George Club 191 ITR 368 are both judgments in which no part of the assets is to be distributed even on liquidation to any of the members of these clubs. Thus, it was held in these cases that the members do not have any share in the income or assets of the club at all. The same cannot be said in the facts of this case inasmuch as under Rule 35 the members of the Bangalore Club are entitled to receive surplus assets in the circumstances stated in Rule 35 - equally on liquidation. However, the result remains the same \u2013 viz., that even if it be held that the Bangalore Club is an association of persons, the members\u2019 shares being determinate do not attract Section 21AA. 33. Shri Banerjee then relied upon the judgment in Bangalore Club v. CIT (2013) 5 SCC 509 only in order to point out that the Bangalore Club was taxed as an AOP under the Income Tax Act and cannot and should not therefore, escape liability under the Wealth Tax Act (an allied and cognate Act). First and foremost, the definition of \u201cperson\u201d in Section 2(31) of the Income Tax Act would take in both an association of persons and a body of individuals. For the purposes of income tax, the Bangalore Club could perhaps be treated to be a \u2018body of individuals\u2019 which is a wider expression than \u2018association of persons\u2019 in which such body of individuals may have no common object at all but would include a combination of individuals who had nothing more than a unity of interest. This distinction has been made by the Andhra Pradesh High Court in Deccan Wine and General Stores v. CIT 106 ITR 111 at pages 116, 117. Quite apart from this, to be taxed as an association of persons under the Income Tax Act is to be taxed as an association of persons per se. We have already seen that Section 21AA does not enlarge the field of tax payers but only plugs evasion as the association of persons must be formed with members who have indeterminate shares in its income or assets. For all these reasons, we cannot accede to Shri Banerjee\u2019s argument that being taxed as an association of persons under the Income Tax Act, the Bangalore Club must be regarded to be an \u2018association of persons\u2019 for the purpose of a tax evasion provision in the Wealth Tax Act as opposed to a charging provision in the Income Tax Act. One last argument of Shri Banerjee needs to be addressed. According to the learned ASG, the fact that the membership of the club is a fluctuating body of individuals would necessarily lead to the conclusion that the shares of the members in the assets or the income of the club would be indeterminate. In CWT v. Trustees of H.E.H. Nizam's Family 108 ITR 555 (1977), this court had to construe Sec. 21 of the Wealth Tax Act. Sec. 21 (1) & (4) which are relevant for our purpose are set out hereinbelow: \u201c21. (1) In the case of assets chargeable to tax under this Act, which are held by a court of wards or an administrator-general or an official trustee or any receiver or manager or any other person, by whatever name called, appointed under any order of a court to manage property on behalf of another, or any trustee appointed under a trust declared by a duly executed instrument in writing, whether testamentary or otherwise (including a trustee under a valid deed of wakf), the wealth-tax shall be levied upon and recoverable from the court of wards, administrator-general, official trustee, receiver, manager or trustee, as the case may be, in the like manner and to the same extent as it would be leviable upon and recoverable from the person on whose behalf or for whose benefit the assets are held, and the provisions of this Act shall apply accordingly. xxx xxx xxx (4) Notwithstanding anything contained in this section, where the shares of the persons on whose behalf or for whose benefit any such assets are held are indeterminate or unknown, the wealth-tax shall be levied upon and recovered from the court of wards, administrator-general, official trustee, receiver, manager, or other person aforesaid as if the person on whose behalf or for whose benefit the assets are held were an individual for the purposes of this Act.\u201d 34. The argument made in this case was that, as the members of the Nizam\u2019s family trust who are beneficiaries thereof would be a fluctuating body of persons, the beneficiaries must be said to be indeterminate as a result of which Sec. 21(4) of the Act would apply and not Sec. 21(1). This was repelled by this Court stating: \u201cThis immediately takes us to the question as to which of the two sub-sections, (1) or (4) of Section 21 applies for the purpose of assessing the assessees to wealth tax in respect of the beneficial interest in the remainder qua each set of unit or units allocated to the relatives specified in the Second Schedule. Now it is clear from the language of Section 3 that the charge of wealth tax is in respect of the net wealth on the relevant valuation date, and, therefore, the question in regard to the applicability of sub- section (1) or (4) of Section 21 has to be determined with reference to the relevant valuation date. The Wealth Tax Officer has to determine who are the beneficiaries in respect of the remainder on the relevant date and whether their shares are indeterminate or unknown. It is not at all relevant whether the beneficiaries may change in subsequent years before the date of distribution, depending upon contingencies which may come to pass in future. So long as it is possible to say on the relevant valuation date that the beneficiaries are known and their shares are determinate, the possibility that the beneficiaries may change by reason of subsequent events such as birth or death would not take the case out of the ambit of sub-section (1) of Section 21. It is no answer to the applicability of sub-section (1) of Section 21 to say that the beneficiaries are indeterminate and unknown because it cannot be predicated who would be the beneficiaries in respect of the remainder on the death of the owner of the life interest. The position has to be seen on the relevant valuation date as if the preceding life interest had come to an end on that date and if, on that hypothesis, it is possible to determine who precisely would be the beneficiaries and on what determinate shares, sub- section (1) of Section 21 must apply and it would be a matter of no consequence that the number of beneficiaries may vary in the future either by reason of some beneficiaries ceasing to exist or some new beneficiaries coming into being. Not only does this appear to us to be the correct approach in the application of sub-section (1) of Section 21, but we find that this has also been the general consensus of judicial opinion in this country in various High Courts during the last about thirty years. The first decision in which this view was taken was rendered as far back as 1945 by the Patna High Court in Khan Bahadur M. Habibur Rahman v.CIT [(1945) 13 ITR 189 (Pat)] and since then, this view has been followed by the Calcutta High Court in Suhashini Karuri v. WTO [(1962) 46 ITR 953 (Cal)] the Bombay High Court in Trustees of Putlibai R.F. Mulla Trust v. CWT [(1967) 66 ITR 653, 657- 8 (Bom)] and CWT v. Trustees of Mrs Hansabai Tribhu wandas Trust [(1967) 69 ITR 527 (Bom)] and the Gujarat High Court in Padmavati Jaykrishna Trust v.CIT [(1966) 61 ITR 66, 73-4 (Guj)]. The Calcutta High Court pointed out in Suhashini Karuri case: \u201cThe share of a beneficiary can be said to be indeterminate if at the relevant time the share cannot be determined but merely because the number of beneficiaries vary from time to time, one cannot say that it is indeterminate.\u201d The same proposition was formulated in slightly different language by the Bombay High Court in Trustees of Putalibai R.F. Mulla Trust case [(1967) 66 ITR 653, 657-8 (Bom)]: \u201cThe question whether the shares of the beneficiaries are determinate or known has to be judged as on the relevant date in each respective year of taxation. Therefore, whatever may be the position \u2014 as to any future date, so far as the relevant date in each year is concerned, it is upon the terms of the trust deed always possible to determine who are the sharers and what their shares respectively are.\u201d The Gujarat High Court also observed in Padmavati Jaykrishna Trust case [(1966) 61 ITR 66, 73-4 (Guj)] : \u201c. . . in order to ascertain whether the shares of beneficiaries and their numbers were determinate or not, the Wealth Tax Officer has to ascertain the facts as they prevailed on the relevant date and therefore any variation in the number of beneficiaries in future would not matter and would not make sub-section (4) of Section 21 applicable.\u201d These observations represent correct statement of the law and we have no doubt that in order to determine the applicability of sub-section (1) of Section 21, what has to be seen is whether on the relevant valuation date, it is possible to say with certainty and definiteness as to who would be the beneficiaries and whether their shares would be determinate and specific, if the event on the happening of which the distribution is to take place occurred on that date. If it is, sub-section (1) of Section 21 would apply: if not, the case will be governed by sub-section (4) of Section 21.\u201d 35. It is thus clear that what has to be seen in the facts of the present case is the list of members on the date of liquidation as per Rule 35 cited hereinabove. Given that as on that particular date, there would be a fixed list of members belonging to the various classes mentioned in the rules, it is clear that, applying the ratio of Trustees of H.E.H. Nizam's Family (supra), such list of members not being a fluctuating body, but a fixed body as on the date of liquidation would again make the members \u2018determinate\u2019 as a result of which, Sec. 21AA would have no application. 36. For all these reasons, the impugned judgment and the review judgment are set aside. The appeals are allowed with no order as to costs. \u2026\u2026\u2026\u2026\u2026..\u2026\u2026\u2026\u2026\u2026\u2026J. (R. F. Nariman) \u2026\u2026\u2026..\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026J. (Navin Sinha) \u2026\u2026\u2026..\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026J. (Indira Banerjee) New Delhi. September 08, 2020.",
        "1373037": "REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6418 OF 2008 (Arising out of SLP (C) NO. 17397 of 2007) M/s. M.M.T.C. Limited ...Appellant Versus Commissioner of Commercial Tax & Ors. ...Respondents JUDGMENT Dr. ARIJIT PASAYAT, J. 1. Leave granted. 2. Challenge in this appeal is to the judgment of a Division Bench of the Madhya Pradesh High Court dismissing the writ appeal filed by the appellant on the ground that it was not maintainable. The appeal was filed under Section 2(1) of the M.P. Uchacha Nyayalay (Khand Nyaypeth Ko Appeal) Adhiniyam, 2005 (hereinafter referred to as the `Act'). It was held that the order was passed in exercise of power of superintendence under Article 227 of the Constitution of India, 1950 (in short the `Constitution') against which the Letters Patent Appeal is not maintainable. The order of learned Single Judge was passed on 9.11.2005. Against the said order, special leave petition was filed which was disposed of by this Court by order dated 16.2.2006. We shall refer to the text of the order later. The High Court construed as if this Court has only waived the limitation for filing of Letters Patent Appeal and there was no direction to consider the case on merits. 3. Learned counsel for the appellant submitted that the order of this Court is very clear and the conclusions of the High Court that merely limitation was waived is contrary to the clear terms of the earlier order of this Court. Additionally it is submitted that the prayer in the Writ Petition was to quash the order passed by the Assistant Commissioner, Commercial Tax. That being so, the mere fact that the writ petition was styled under Article 227 of the Constitution is of no consequence. It is the nature of the relief sought for and the controversy involved which determines the Article which is applicable. 4. Learned counsel for the respondent-State on the other hand supported the impugned judgment of the High Court. 5. The earlier order passed by this Court dated 22.8.2006 reads as follows: \"Heard. Since the impugned order is passed by a learned Single Judge. The normal remedy is to file a Letters Patent Appeal. Since we had entertained the Special Leave Petition against the learned Single Judge's order it would be appropriate to grant three weeks' time to the petitioner to prefer the LPA which if otherwise free from defect shall be entertained for being considered on merits. The interim order passed by this Court shall continue for the aforesaid purpose. The Special Leave Petition is disposed of accordingly.\" (Underlined for emphasis) 6. A bare reading of the order shows that the direction was to consider the LPA on merits and time was granted to prefer the LPA within three weeks. The High Court was directed to dispose of the LPA on merits if it was otherwise free from defect. The High Court was, therefore, not justified in holding that this Court's earlier order only waived the limitation for filing a Letters Patent Appeal. On that score alone the High Court's order is unsustainable. 7. In addition, the High Court seems to have gone by the nomenclature gone by the nomenclature i.e. the discription given in the writ petition to be one under Article 227 of the Constitution. The High Court did not consider the nature of the controversy and the prayer involved in the Writ petition. As noted above the prayer was to quash the order of assessment passed by the Assistant Commissioner, Commercial Tax levying purchase as well as Entry Tax. 8. Section 2 of the Act reads as follows: \"2(1) An appeal shall lie from a judgment or order passed by the one Judge of the High Court in exercise of original jurisdiction under Article 226 of the Constitution of India, to a Division bench comprising of two judges of the same High Court. Provided that no such appeal shall lie against an interlocutory order or against an order passed in exercise of supervisory jurisdiction under Article 227 of the Constitution of India.\" 9. This Court in Hari Vishnu Kamath v. Syed Ahmad Ishaque and Ors. (AIR 1955 SC 233) held that the High Court while issuing writ of certiorari under Article 226 of the Constitution can only annul a decision of a Tribunal whereas under Article 227 of the Constitution it can issue further directions as well. As noted above the prayer in the Writ Petition was to set aside the decision of the assessing officer. 10. In Umaji Keshao Meshram v. Radhikabai [AIR 1986 SC 1272] it was noted as follows: \"Under Article 226 an order, direction or writ is to issue to a person, authority or the State. In a proceeding under that article the person, authority or State against whom the direction, order or writ is sought is a necessary party. Under Article 227, however, what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority and according to law. Prior to the commencement of the Constitution, the Chartered High Courts as also the Judicial Committee had held that the power to issue prerogative writs possessed by the Chartered High Courts was an exercise of original jurisdiction (see Mahomedalli Allabux v. Ismailji Abdulali (AIR 1926 Bom 332), Raghunath Keshav Khadilkar v. Poona Municipality,(AIR 1945 Bom 7) Ryots of Garabandho v. Zemindar of Parlakimedi (AIR 1943 PC 164) and Moulvi Hamid Hasan Nomani v. Banwarilal Roy [(1946- 47) 74 Ind App 120,130-131]. In the last mentioned case which dealt with the nature of a writ of quo warranto, the Judicial Committee held: \"In Their Lordships' opinion any original civil jurisdiction possessed by the High Court and not in express terms conferred by the Letters Patent or later enactments falls within the description of ordinary original civil jurisdiction.\" By Article 226 the power of issuing prerogative writs possessed by the Chartered High Courts prior to the commencement of the Constitution has been made wider and more extensive and conferred upon every High Court. The nature of the exercise of the power under Article 226, however, remains the same as in the case of the power of issuing prerogative writs possessed by the Chartered High Courts. A series of decisions of this Court has firmly established that a proceeding under Article 226 is an original proceeding and when it concerns civil rights, it is an original civil proceeding (see, for instance, State of U.P. v. Vijay Anand Maharaj [(1963) 1 SCR 1,16], CIT v. Ishwarlal Bhagwandas [AIR 1965 SC 1818], Ramesh v. Seth Gendalal Motilal Patni (1966 (3) SCR 198), Arbind Kumar Singh v. Nand Kishore Prasad[1968 (3) SCR 322] and Ahmedabad Mfg. & Calico Ptg. Co. Ltd. v. Ram Tahel Ramnand (AIR 1972 SC 1598).\" 11. In para 106, it was noted as follows: \"106. The non obstante clause in Rule 18, namely, \"Notwithstanding anything contained in Rules 1, 4 and 17 of this chapter\", makes it abundantly clear why that rule uses the words \"finally disposed of\". As seen above, under Rules 1 and 17, applications under Articles 226 and 227 are required to be heard and disposed of by a Division Bench. Rule 4, however, gives power to a Single Judge to issue rule nisi on an application under Article 226 but precludes him from passing any final order on such application. It is because a Single Judge has no power under Rules 1, 4 and 17 to hear and dispose of a petition under Article 226 or 227 that the non obstante clause has been introduced in Rule 18. The use of the words \"be heard and finally disposed of by a Single Judge\" in Rule 18 merely clarifies the position that in such cases the power of the Single Judge is not confined merely to issuing a rule nisi. These words were not intended to bar a right of appeal. To say that the words \"finally disposed of\" mean finally disposed of so far as the High Court is concerned is illogical because Rules 1, 4 and 7 use the words \"be heard and disposed of by a Divisional Bench\" and were the reasoning of the Full Bench correct, it would mean that so far as the High Court is concerned, when a Single Judge hears a matter and disposes it of, it is finally disposed of and when a Division Bench disposes it of, it is not finally disposed of. The right of appeal against the judgment of a Single Judge is given by the Letters Patent which have been continued in force by Article 225 of the Constitution. If under the Rules of the High Court, a matter is heard and disposed of by a Single Judge, an appeal lies against his judgment unless it is barred either under the Letters Patent or some other enactment. The word \"finally\" used in Rule 18 of Chapter XVII of the Appellate Side Rules does not and cannot possibly have the effect of barring a right of appeal conferred by the Letters Patent. As we have seen above, an intra-court appeal against the judgment of a Single Judge in a petition under Article 226 is not barred while clause 15 itself bars an intra-court appeal against the judgment of a Single Judge in a petition under Article 227.\" 12. In Sushilabai Laxminarayan Mudliyar v. Nihalchand Waghajibhai Shaha [1993 Supp. (1) SCC 11] this court with reference to an unreported judgment in Ratnagiri District Central Co-operative Bank Ltd. v. Dinkar Kashinath Watve, C.A. No. 520 of 1989 decided on 27.1.1989 held as follows: \"Even when in the cause title of an application both Article 226 and Article 227 of the Constitution have been mentioned, the learned single Judge is at liberty to decide, according to facts of each particular case, whether the said application ought to be dealt with only under Article 226 of the Constitution. For determining the question of maintainability of an appeal against such a judgment of the Single Judge the Division bench has to find out whether in substance the judgment has been passed by the learned Single Judge in exercise of the jurisdiction under Article 226 of the Constitution. In the event in passing his judgment on an application which had mentioned in its cause title both Articles 226 and 227, the Single Judge has in fact invoked only his supervisory powers under Article 227, the appeal under clause 15 would not lie. The clause 15 of the Letters Patent expressly bars appeals against orders of Single Judges passed under revisional or supervisory powers. Even when the learned Single Judge's order has been passed under both the articles, for deciding the maintainability against such an order what would be relevant is the principal or main relief granted by the judgment passed by learned Single Judge and not the ancillary directions given by him. The expression `ancillary' means, in the context, incidental or consequential to the main part of the order. Thus, the determining factor is the real nature of principal order passed by the Single Judge which is appealed against and neither the mentioning in the cause title of the application of both the articles nor the granting of ancillary orders thereupon made by learned Single Judge would be relevant. Thus, in each case, the Division Bench may consider the substance of the judgment under appeal to ascertain whether the Single Judge has mainly or principally exercised in the matter his jurisdiction under Article 226 or under Article 227. In the event in his judgment the learned Single Judge himself had mentioned the particular article of the Constitution under which he was passing his judgment, in an appeal under clause 15 against such a judgment it may not be necessary for the appellate bench to elaborately examine the question of its maintainability. When without mentioning the particular article the learned Single Judge decided on merits the application, in order to decide the question of maintainability of an appeal, against such a judgment, the Division Bench might examine the relief granted by the learned Single Judge, for maintainability of an appeal, the determination would be the main and not the ancillary relief. When a combined application under Articles 226 and 227 of the Constitution is summarily dismissed without reasons, the appeal Court may consider whether the facts alleged, warranted filing of the application under Article 226 or under Article 227 of the Constitution.\" 13. Thereafter this Court explained the ratio laid down in the case of Umaji's case (supra) and expressed thus: \"...In Umaji case it was clearly held that where the facts justify a party in filing an application either under Article 226 or 227 of the Constitution of India and the party chooses to file his application under both these articles in fairness of justice to party and in order not to deprive him of valuable right of appeal the Court ought to treat the application as being made under Article 226, and if in deciding the matter, in the final order the Court gives ancillary directions which may pertain to Article 227, this ought not to be held to deprive a party of the right of appeal under clause 15 of the Letters Patent where the substantial part of the order sought to be appealed against is under Article 226. Rule 18 of the Bombay High Court Appellate Side Rules read with clause 15 of the Letters Patent provides for appeal to the Division Bench of the High Court from a judgment of the learned Single Judge passed on a writ petition under Article 226 of the Constitution. In the present case the Division Bench was clearly wrong in holding that the appeal was not maintainable against the order of the learned Single Judge.\" 14. In Mangalbhai & Ors. v. Radhyshyam (Dr.) [AIR 1993 SC 806] it was inter alia observed as follows: \"The learned Single Judge in his impugned judgment dated December 11, 1987 nowhere mentioned that he was exercising the powers under Article 227 of the Constitution. The learned Single Judge examined the matter on merit and set aside the orders of the Rent Controller as well as the Resident Deputy Collector on the ground that the aforesaid judgments were perverse. The findings of the Rent Controller and Resident Deputy Collector were set aside on the question of habitual defaulter as well as on the ground of bona fide need. Thus in the totality of the facts and circumstances of the case, the pleadings of the parties in the writ petition and the judgment of the learned Single Judge leaves no manner of doubt that it was an order passed under Article 226 of the Constitution and in that view of the matter the Letters Patent Appeal was maintainable before the High Court. After taking the aforesaid view one course open was to set aside the order of the Division Bench and to remand the matter for being disposed of on merits by the Division Bench of the High Court. However, taking in view the fact that this litigation is going on for nearly a decade and also the fact that even the learned Single Judge in his impugned order dated December 11, 1987 had remanded the case to the Rent Controller, we considered it proper in the interest of justice to hear the appeal on merits against the judgment of the learned Single Judge. We have heard learned counsel for the parties at length on the merits of the case.\" 15. In Lokmat Newspapers (P) Ltd. v. Shankarprasad [1999 (6) SCC 275] it was observed as follows: \"It is, therefore, obvious that the writ petition invoking jurisdiction of the High Court both under Articles 226 and 227 of the Constitution had tried to make out a case for the High Court's interference seeking issuance of an appropriate writ of certiorari under Article 226 of the Constitution of India. Basic averments for invoking such a jurisdiction were already pleaded in the writ petition for the High Court's consideration. It is true, as submitted by learned counsel for the appellant, that the order of the learned Single Judge nowhere stated that the Court was considering the writ petition under Article 226 of the Constitution of India. It is equally true that the learned Single Judge dismissed the writ petition by observing that the courts below had appreciated the contentions and rejected the complaint. But the said observation of the learned Single Judge did not necessarily mean that the learned Judge was not inclined to interfere under Article 227 of the Constitution of India only. The said observation equally supports the conclusion that the learned Judge was not inclined to interfere under Articles 226 and 227. As seen earlier, he was considering the aforesaid writ petition moved under Article 226 as well as Article 227 of the Constitution of India. Under these circumstances, it is not possible to agree with the contention of learned counsel for the appellant that the learned Single Judge had refused to interfere only under Article 227 of the Constitution of India when he dismissed the writ petition of the respondent. In this connection, it is profitable to have a look at the decision of this Court in the case of Umaji Keshao Meshram v. Radhikabai [1986 Supp.SCC 401]. In that case O. Chinnappa Reddy and D.P. Madon, JJ., considered the very same question in the light of clause 15 of the Letters Patent of the Bombay High Court. Madon, J., speaking for the Court in para 107 of the Report at p. 473, made the following pertinent observations: (SCC p. 473, para 107) \"107. Petitions are at times filed both under Articles 226 and 227 of the Constitution. The case of Hari Vishnu Kamath v. Syed Ahmad Ishaque (AIR 1955 SC 233) before this Court was of such a type. Rule 18 provides that where such petitions are filed against orders of the tribunals or authorities specified in Rule 18 of Chapter XVII of the Appellate Side Rules or against decrees or orders of courts specified in that rule, they shall be heard and finally disposed of by a Single Judge. The question is whether an appeal would lie from the decision of the Single Judge in such a case. In our opinion, where the facts justify a party in filing an application either under Article 226 or 227 of the Constitution, and the party chooses to file his application under both these articles, in fairness and justice to such party and in order not to deprive him of the valuable right of appeal the court ought to treat the application as being made under Article 226, and if in deciding the matter, in the final order the court gives ancillary directions which may pertain to Article 227, this ought not to be held to deprive a party of the right of appeal under clause 15 of the Letters Patent where the substantial part of the order sought to be appealed against is under Article 226. Such was the view taken by the Allahabad High Court in Aidal Singh v. Karan Singh (AIR 1957 All 414) and by the Punjab High Court in Raj Kishan Jain v. Tulsi Dass (AIR 1959 Punj 291) and Barham Dutt v. Peoples' Coop. Transport Society Ltd. (AIR 1961 Punj 24) and we are in agreement with it.\" The aforesaid decision squarely gets attracted on the facts of the present case. It was open to the respondent to invoke the jurisdiction of the High Court both under Articles 226 and 227 of the Constitution of India. Once such a jurisdiction was invoked and when his writ petition was dismissed on merits, it cannot be said that the learned Single Judge had exercised his jurisdiction only under Article 226 (sic 227) of the Constitution of India. This conclusion directly flows from the relevant averments made in the writ petition and the nature of jurisdiction invoked by the respondent as noted by the learned Single Judge in his judgment, as seen earlier. Consequently, it could not be said that clause 15 of the Letters Patent was not attracted for preferring appeal against the judgment of the learned Single Judge. It is also necessary to note that the appellant being the respondent in letters patent appeal joined issues on merits and did not take up the contention that the letters patent appeal was not maintainable. For all these reasons, therefore, the primary objection to the maintainability of the letters patent appeal as canvassed by learned counsel for the appellant, has to be repelled. Point 1 is, therefore, answered in the affirmative against the appellant and in favour of the respondent. It takes us to the consideration of points arising for our decision on merits.\" 16. In Surya Dev Rai v. Ram Chander Rai & Ors. [AIR 2003 SC 3044] after referring to decisions in Custodian of Evacuee Property, Bangalore v. Khan Saheb Abdul Shukoor, etc. [1961 (3) SCR 855] and Nagendra Nath Bora & Anr. v. Commissioner of Hills Division [AIR 1958 SC 398], T.C. Basappa v. T. Nagappa [AIR 1954 SC 440] and Rupa Ashok Hurra v. Ashok Hurra [AIR 2002 SC 1771], this Court held at paragraphs 17, 19 & 25 as follows: \"17. From the aforesaid enunciation of law it is quite vivid and luminescent that the pleadings in the writ petition, nature of the order passed by the learned Single Judge, character and the contour of the order, directions issued, nomenclature given the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hypertechnical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Court has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. Phraseology used in exercise of original jurisdiction under Article 226 of the Constitution in Section 2 of the Act cannot be given a restricted and constricted meaning because an order passed in a writ petition can tantamount to an order under Article 226 or 227 of the Constitution of India and it would depend upon the real nature of the order passed by the learned Single Judge. To elaborate; whether the learned Single Judge has exercised his jurisdiction under Article 226 or under Article 227 or both would depend upon various aspects and many a facet as has been emphasized in the afore quoted decisions of the apex Court. The pleadings, as has been indicated hereinabove, also assume immense significance. As has been held in the case of Surya Devi Rai (supra) a writ of certiorari can be issued under Article 226 of the Constitution against an order of a Tribunal or an order passed by the sub ordinate court. In quintessentiality, it cannot be put in a state jacket formula that any order of the learned judge that deals with an order arising from an inferior tribunal or the sub ordinate court is an order under Article 227 of the Constitution of India and not an order under Article 226 of the Constitution. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can coincide, co-exit, overlap imbricate. In this context it is apt to note that there may be cases where the learned single judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitutions is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of the case. 19. Thus, there is no manner of doubt that the orders and proceedings of a judicial court subordinate to the High Court are amenable to writ jurisdiction of the High Court under Article 226 of the Constitution. 25. Upon a review of decided cases and a survey of the occasions, wherein the High Courts have exercised jurisdiction to command a writ of certiorari or to exercise supervisory jurisdiction under Article 227 in the given facts and circumstances in a variety of cases, it seems that the distinction between the two jurisdictions stands almost obliterated in practice. Probably, this is the reason why it has become customary with the lawyers labelling their petitions as one common under Articles 226 and 227 of the Constitution, though such practice has been deprecated in some judicial pronouncement. Without entering into niceties and technicality of the subject, we venture to state the broad general difference between the two jurisdictions. Firstly, the writ of certiorari is an exercise of its original jurisdiction by the High Court; exercise of supervisory jurisdiction is not an original jurisdiction and in this sense it is akin to appellate, revisional or corrective jurisdiction. Secondly, in a writ of certiorari, the record of the proceedings having been certified and sent up by the inferior court or tribunal to the High Court, the High Court if inclined to exercise its jurisdiction, may simply annul or quash the proceedings and then do no more. In exercise of supervisory jurisdiction, the High Court may not only quash or set aside the impugned proceedings, judgment or order but it may also make such directions as the facts and circumstances of the case may warrant, maybe, by way of guiding the inferior court or tribunal as to the manner in which it would now proceed further or afresh as commended to or guided by the High Court. In appropriate cases the High Court, while exercising supervisory jurisdiction, may substitute such a decision of its own in place of the impugned decision, as the inferior court or tribunal should have made. Lastly, the jurisdiction under Article 226 of the Constitution is capable of being exercised on a prayer made by or on behalf of the party aggrieved; the supervisory jurisdiction is capable of being exercised suo motu as well.\" 17. In view of what has been stated above, the High Court was not justified in holding that the Letters Patent Appeal was not maintainable. In addition, a bare reading of this Court's earlier order shows that the impugned order is clearly erroneous. The impugned order is set aside. The writ appeal shall be heard by the Division Bench on merits. 18. The appeal is allowed. ..................................J. (Dr. ARIJIT PASAYAT) .................................J. (P. SATHASIVAM) .................................J. (AFTAB ALAM) New Delhi, November 3, 2008",
        "111507500": "REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 707 OF 2020 (ARISING OUT OF SLP (CRIMINAL) NO. 3585 OF 2020) HITESH VERMA .....APPELLANT(S) VERSUS THE STATE OF UTTARAKHAND & ANR. .....RESPONDENT(S) JUDGMENT HEMANT GUPTA, J. 1. The challenge in the present appeal is to an order passed by the High Court of Uttarakhand at Nainital on 20.7.2020 whereby the petition filed by the appellant under Section 482 of the Code of Criminal Procedure, 19731 for quashing the charge-sheet as well as the summoning order dated 25.6.2020 was dismissed. 2. The FIR No. 173 in question was lodged by the respondent No. 2 on 11.12.2019 at 23:24 hours in respect of an incident alleged to have Signature Not Verified occurred on 10.12.2019 at 10:00 hours against the appellants and Digitally signed by Vishal Anand Date: 2020.11.05 others. The FIR was lodged for the offences under Sections 452, 16:30:41 IST Reason: 1 For short, the \u2018Code\u2019 504, 506 and Section 3(1)(x) and 3(1)(e) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 2. The said FIR, when translated, reads as under: \u201cRespected SHO with respect of registering of FIR, the complainant is presently resident of Gram New Bajeti Patti Chandak Tehsil & District Pithoragarh. I am constructing my house on my Khet No. 6195, 6196 & 6199 but Banshilal, Pyarelal S/o Late Har Lal, Hitesh Verma S/o Sh. Pyarelal, Pawan Verma S/o Banshilal, Uma Verma w/o Pyarelal and their Nepali Domestic help Raju from past 6 months are not allowing the applicant to work on her fields. All the above persons used to abuse the applicant her husband and other family members and use to give death threats and use Caste coloured abuses. On 10.12.2019 at around 10 am, all these persons entered illegally in to four walls of her building and started hurling abuses on myself and my labourers and gave death threats and used castes\u2019 remarks/abuses and took away the construction material such as Cement, Iron, Rod, Bricks. The Applicant is a Scheduled Caste and all of the above person uses castes\u2019 remarks/abuses (used bad language) and said that you are persons of bad caste and that we will not let you live in this mohalla/vicinity. Respect Sir, the applicant and her family has threat to her life from such persons. Thus, it is requested that an FIR may be lodged against such persons and necessary action may be taken against them\u2026..\u201d 3. Pursuant to the FIR filed by Respondent No. 2, Police filed a report disclosing offences under Sections 504, 506 IPC and Section 3(1)(x) of the Act, cognizance for the same was taken by the Trial Court on 25.6.2020. It is the said order which was challenged along with the charge-sheet before the High Court, which was unsuccessful. 4. On the other hand, on the basis of the statement of Mr. Pawan Verma, an FIR No. 174 at about 23:47 hours was lodged on 2 For short, \u201cthe Act\u201d. 11.12.2019 in respect of an occurrence which had taken place allegedly at 9:45 hours on 11.12.2019. A charge-sheet in the said matter has been submitted against respondent No. 2 and others. Thereafter, the learned Chief Judicial Magistrate, Pithoragarh had taken cognizance for the offences under Sections 323 and 354 IPC against respondent No. 2 and others on 2.7.2020. 5. The Appellant invoked the jurisdiction of the High Court by way of a petition under Section 482 of the Code to challenge the charge- sheet and the order taking cognizance. The Appellant relied upon Gerige Pentaiah v. State of Andhra Pradesh & Ors. 3 wherein the allegation was of abusing the complainant in the name of their caste and this Court quashed the complaint. The attention of the High Court was drawn to another judgment reported as Ashabai Machindra Adhagale v. State of Maharashtra & Ors. 4 wherein this Court refused to quash the FIR on the ground that the caste of the accused was not mentioned in the first information report. The High Court found that both the abovementioned cases dealt with the same issue with regard to applicability of the provisions of the Act. It was observed by the High Court that the appellant had categorically admitted that the informant belonged to Scheduled Caste and that she and her labourers were abused. Therefore, the provisions of the Act were found to be applicable and accordingly, after investigation, charge-sheet has been submitted. The High Court dismissed the petition with the aforesaid findings. 3 (2008) 12 SCC 531 4 (2009) 3 SCC 789 6. The learned counsel for the appellant argued that the disputes relating to the property are pending before the Civil Court and that, the present FIR has been filed on patently false grounds by respondent No. 2 only to harass the appellant and to abuse of process of law. It is argued that the allegations levelled in the FIR and the subsequent report submitted by the Police after investigations does not disclose any offence under the Act. Furthermore, it is argued that the report neither discloses the caste of the informant nor the allegations are that they were made in public view. Also, the offending words are not purported to be made for the reason that the informant is a person belonging to Scheduled Caste. 7. The learned counsel for the State on the contrary, submitted that during investigations, certain persons have supported the version of the informant. It is argued on behalf of respondent No. 2 that in fact the appellant and his family are encroacher on the informant\u2019s land. Therefore, the appellant was rightly not granted any indulgence by the High Court. 8. Against the backdrop of these facts, it is pertinent to refer to the Statement of Objects and Reasons of enactment of the Act. It is provided as under: economic conditions of the Scheduled Castes and the Scheduled Tribes, they remain vulnerable. They are denied number of civil rights. They are subjected to various offences, indignities, humiliations and harassment. They have, in several brutal incidents, been deprived of their life and property. Serious crimes are committed against them for various historical, social and economic reasons. 2. Because of the awareness created amongst the Scheduled Castes and the Scheduled Tribes through spread of education, etc., they are trying to assert their rights and this is not being taken very kindly by the others. When they assert their rights and resist practices of untouchability against them or demand statutory minimum wages or refuse to do any bonded and forced labour, the vested interests try to cow them down and terrorise them. When the Scheduled Castes and the Scheduled Tribes try to preserve their self- respect or honour of their women, they become irritants for the dominant and the mighty. Occupation and cultivation of even the Government allotted land by the Scheduled Castes and the Scheduled Tribes is resented and more often these people become victims of attacks by the vested interests. Of late, there has bene an increase in the disturbing trend of commission of certain atrocities like making the Scheduled Caste persons eat inedible substances like human excreta and attacks on and mass killings of helpless Scheduled Castes and the Scheduled Tribes and rape of women belonging to the Scheduled Castes and the Scheduled Tribes. Under the circumstances, the existing laws like the Protection of Civil Rights Act, 1955 and the normal provisions of the Indian Penal Code have been found to be inadequate to check these crimes. A special Legislation to check and deter crimes against them committed by non-Scheduled Castes and non-Scheduled Tribes has, therefore, become necessary.\u201d 9. The long title of the Act is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and the Scheduled Tribes, to provide for Special Courts and Exclusive Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matters connected therewith or incidental thereto. 10. The Act was enacted to improve the social economic conditions of the vulnerable sections of the society as they have been subjected to various offences such as indignities, humiliations and harassment. They have been deprived of life and property as well. The object of the Act is thus to punish the violators who inflict indignities, humiliations and harassment and commit the offence as defined under Section 3 of the Act. The Act is thus intended to punish the acts of the upper caste against the vulnerable section of the society for the reason that they belong to a particular community. 11. It may be stated that the charge-sheet filed is for an offence under Section 3(1)(x) of the Act. The said section stands substituted by Act No. 1 of 2016 w.e.f. 26.1.2016. The substituted corresponding provision is Section 3(1)(r) which reads as under: \u201c3(1)(r) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view;\u201d 12. The basic ingredients of the offence under Section 3(1)(r) of the Act can be classified as \u201c1) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe and 2) in any place within public view\u201d. 13. The offence under Section 3(1)(r) of the Act would indicate the ingredient of intentional insult and intimidation with an intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe. All insults or intimidations to a person will not be an offence under the Act unless such insult or intimidation is on account of victim belonging to Scheduled Caste or Scheduled Tribe. The object of the Act is to improve the socio-economic conditions of the Scheduled Castes and the Scheduled Tribes as they are denied number of civil rights. Thus, an offence under the Act would be made out when a member of the vulnerable section of the Society is subjected to indignities, humiliations and harassment. The assertion of title over the land by either of the parties is not due to either the indignities, humiliations or harassment. Every citizen has a right to avail their remedies in accordance with law. Therefore, if the appellant or his family members have invoked jurisdiction of the civil court, or that respondent No.2 has invoked the jurisdiction of the civil court, then the parties are availing their remedies in accordance with the procedure established by law. Such action is not for the reason that respondent No.2 is member of Scheduled Caste. 14. Another key ingredient of the provision is insult or intimidation in \u201cany place within public view\u201d. What is to be regarded as \u201cplace in public view\u201d had come up for consideration before this Court in the judgment reported as Swaran Singh & Ors. v. State through Standing Counsel & Ors.5. The Court had drawn distinction between the expression \u201cpublic place\u201d and \u201cin any place within public view\u201d. It was held that if an offence is committed outside the building e.g. in a lawn outside a house, and the lawn can be seen 5 (2008) 8 SCC 435 by someone from the road or lane outside the boundary wall, then the lawn would certainly be a place within the public view. On the contrary, if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then it would not be an offence since it is not in the public view. The Court held as under: \u201c28. It has been alleged in the FIR that Vinod Nagar, the first informant, was insulted by Appellants 2 and 3 (by calling him a \u201cchamar\u201d) when he stood near the car which was parked at the gate of the premises. In our opinion, this was certainly a place within public view, since the gate of a house is certainly a place within public view. It could have been a different matter had the alleged offence been committed inside a building, and also was not in the public view. However, if the offence is committed outside the building e.g. in a lawn outside a house, and the lawn can be seen by someone from the road or lane outside the boundary wall, the lawn would certainly be a place within the public view. Also, even if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then also it would be an offence since it is in the public view. We must, therefore, not confuse the expression \u201cplace within public view\u201d with the expression \u201cpublic place\u201d. A place can be a private place but yet within the public view. On the other hand, a public place would ordinarily mean a place which is owned or leased by the Government or the municipality (or other local body) or gaon sabha or an instrumentality of the State, and not by private persons or private bodies.\u201d 15. As per the FIR, the allegations of abusing the informant were within the four walls of her building. It is not the case of the informant that there was any member of the public (not merely relatives or friends) at the time of the incident in the house. Therefore, the basic ingredient that the words were uttered \u201cin any place within public view\u201d is not made out. In the list of witnesses appended to the charge-sheet, certain witnesses are named but it could not be said that those were the persons present within the four walls of the building. The offence is alleged to have taken place within the four walls of the building. Therefore, in view of the judgment of this Court in Swaran Singh, it cannot be said to be a place within public view as none was said to be present within the four walls of the building as per the FIR and/or charge-sheet. 16. There is a dispute about the possession of the land which is the subject matter of civil dispute between the parties as per respondent No.2 herself. Due to dispute, appellant and others were not permitting respondent No.2 to cultivate the land for the last six months. Since the matter is regarding possession of property pending before the Civil Court, any dispute arising on account of possession of the said property would not disclose an offence under the Act unless the victim is abused, intimated or harassed only for the reason that she belongs to Scheduled Caste or Scheduled Tribe. 17. In another judgment reported as Khuman Singh v. State of Madhya Pradesh6, this Court held that in a case for applicability of Section 3(2)(v) of the Act, the fact that the deceased belonged to Scheduled Caste would not be enough to inflict enhanced punishment. This Court held that there was nothing to suggest that the offence was committed by the appellant only because the deceased belonged to Scheduled Caste. The Court held as under: 6 2019 SCC OnLine SC 1104 \u201c15. As held by the Supreme Court, the offence must be such so as to attract the offence under Section 3(2)(v) of the Act. The offence must have been committed against the person on the ground that such person is a member of Scheduled Caste and Scheduled Tribe. In the present case, the fact that the deceased was belonging to \u201cKhangar\u201d-Scheduled Caste is not disputed. There is no evidence to show that the offence was committed only on the ground that the victim was a member of the Scheduled Caste and therefore, the conviction of the appellant-accused under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is not sustainable.\u201d 18. Therefore, offence under the Act is not established merely on the fact that the informant is a member of Scheduled Caste unless there is an intention to humiliate a member of Scheduled Caste or Scheduled Tribe for the reason that the victim belongs to such caste. In the present case, the parties are litigating over possession of the land. The allegation of hurling of abuses is against a person who claims title over the property. If such person happens to be a Scheduled Caste, the offence under Section 3(1)(r) of the Act is not made out. 19. This Court in a judgment reported as Dr. Subhash Kashinath Mahajan v. State of Maharashtra & Anr. 7 issued certain directions in respect of investigations required to be conducted under the Act. In a review filed by the Union against the said judgment, this Court in a judgment reported as Union of India v. State of Maharashtra & Ors.8 reviewed the directions issued by this Court and held that if there is a false and unsubstantiated FIR, 7 (2018) 6 SCC 454 8 (2020) 4 SCC 761 the proceedings under Section 482 of the Code can be invoked. The Court held as under: \u201c52. There is no presumption that the members of the Scheduled Castes and Scheduled Tribes may misuse the provisions of law as a class and it is not resorted to by the members of the upper castes or the members of the elite class. For lodging a false report, it cannot be said that the caste of a person is the cause. It is due to the human failing and not due to the caste factor. Caste is not attributable to such an act. On the other hand, members of the Scheduled Castes and Scheduled Tribes due to backwardness hardly muster the courage to lodge even a first information report, much less, a false one. In case it is found to be false/unsubstantiated, it may be due to the faulty investigation or for other various reasons including human failings irrespective of caste factor. There may be certain cases which may be false that can be a ground for interference by the Court, but the law cannot be changed due to such misuse. In such a situation, it can be taken care of in proceeding under Section 482 CrPC.\u201d 20. Later, while examining the constitutionality of the provisions of the Amending Act (Central Act No. 27 of 2018), this Court in a judgment reported as Prathvi Raj Chauhan v. Union of India & Ors.9 held that proceedings can be quashed under Section 482 of the Code. It was held as under: \u201c12. The Court can, in exceptional cases, exercise power under Section 482 CrPC for quashing the cases to prevent misuse of provisions on settled parameters, as already observed while deciding the review petitions. The legal position is clear, and no argument to the contrary has been raised.\u201d 21. In Gerige Pentaiah, one of the arguments raised was non- disclosure of the caste of the accused but the facts were almost 9 (2020) 4 SCC 727 similar as there was civil dispute between parties pending and the allegation was that the accused has called abuses in the name of the caste of the victim. The High Court herein has misread the judgment of this Court in Ashabai Machindra Adhagale as it was not a case about the caste of the victim but the fact that the accused was belonging to upper caste was not mentioned in the FIR. The High Court of Bombay had quashed the proceedings for the reason that the caste of the accused was not mentioned in the FIR, therefore, the offence under Section 3(1)(xi) of the Act is not made out. In an appeal against the decision of the Bombay High Court, this Court held that this will be the matter of investigation as to whether the accused either belongs to or does not belong to Scheduled Caste or Scheduled Tribe. Therefore, the High Court erred in law to dismiss the quashing petition relying upon later larger Bench judgment. 22. The appellant had sought quashing of the charge-sheet on the ground that the allegation does not make out an offence under the Act against the appellant merely because respondent No. 2 was a Scheduled Caste since the property dispute was not on account of the fact that respondent No. 2 was a Scheduled Caste. The property disputes between a vulnerable section of the society and a person of upper caste will not disclose any offence under the Act unless, the allegations are on account of the victim being a Scheduled Caste. Still further, the finding that the appellant was aware of the caste of the informant is wholly inconsequential as the knowledge does not bar, any person to protect his rights by way of a procedure established by law. 23. This Court in a judgment reported as Ishwar Pratap Singh & Ors. v. State of Uttar Pradesh & Anr.10 held that there is no prohibition under the law for quashing the charge-sheet in part. In a petition filed under Section 482 of the Code, the High Court is required to examine as to whether its intervention is required for prevention of abuse of process of law or otherwise to secure the ends of justice. The Court held as under: \u201c9. Having regard to the settled legal position on external interference in investigation and the specific facts of this case, we are of the view that the High Court ought to have exercised its jurisdiction under Section 482 CrPC to secure the ends of justice. There is no prohibition under law for quashing a charge-sheet in part. A person may be accused of several offences under different penal statutes, as in the instant case. He could be aggrieved of prosecution only on a particular charge or charges, on any ground available to him in law. Under Section 482, all that the High Court is required to examine is whether its intervention is required for implementing orders under the Criminal Procedure Code or for prevention of abuse of process, or otherwise to secure the ends of justice. A charge-sheet filed at the dictate of somebody other than the police would amount to abuse of the process of law and hence the High Court ought to have exercised its inherent powers under Section 482 to the extent of the abuse. There is no requirement that the charge-sheet has to be quashed as a whole and not in part. Accordingly, this appeal is allowed. The supplementary report filed by the police, at the direction of the Commission, is quashed.\u201d 24. In view of the above facts, we find that the charges against the appellant under Section 3(1)(r) of the Act are not made out. Consequently, the charge-sheet to that extent is quashed. The 10 (2018) 13 SCC 612 appeal is disposed of in the above terms. 25. The FIR in respect of other offences will be tried by the competent Court in accordance with law along with the criminal case 11, though separately initiated, for the reason that it relates to interparty dispute and is in respect of same subject matter of property, despite of the fact that two different dates of the incident have been provided by the parties. .............................................J. (L. NAGESWARA RAO) .............................................J. (HEMANT GUPTA) .............................................J. (AJAY RASTOGI) NEW DELHI; NOVEMBER 5, 2020.",
        "149138346": "Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION Civil Appeal No 923 of 2017 (Arising out of SLP (C) No 28615 of 2016) Vodafone Idea Cellular Ltd. \u2026Appellant Versus Ajay Kumar Agarwal \u2026Respondent WITH Civil Appeal No 1389 of 2022 & Civil Appeal No 4274 of 2016 Signature Not Verified Digitally signed by Chetan Kumar Date: 2022.02.25 16:45:40 IST Reason: JUDGMENT Dr Dhananjaya Y Chandrachud, J 1. This civil appeal 1 arises from a judgment and order dated 26 May 2016 of the National Consumer Disputes Redressal Commission 2 which was rendered in the exercise of its revisional jurisdiction. The issue is whether Section 7B of the Indian Telegraph Act 1885 ousts the jurisdiction of the consumer forum in deciding a dispute between a telecom company and a consumer. 2. On 25 May 2014, the respondent instituted a consumer complaint before the District Consumer Disputes Redressal Forum 3, Ahmedabad alleging a deficiency of service on the part of the appellant. The complaint states that the respondent had a post-paid mobile connection and was paying an amount of Rs 249 as the monthly basic rent. The appellant was providing mobile telecom services to the complainant on the basis of which it was asserted that there exists a relationship of consumer and service provider. The complainant subscribed to an \u2018auto pay\u2019 system through a credit card issued by his bankers in terms of which, the appellant would receive the payment before the due date to facilitate the timely payment of bills. According to the complainant, the average monthly bill was in the vicinity of Rs 555. Copies of the previous bills for five months, until 8 November 2013 were annexed. For the period between 8 November 2013 and 7 December 2013, the respondent was billed in the amount of Rs 24,609.51. Civil Appeal No 923 of 2017 \u201cNCDRC\u201d \u201cDistrict Forum\u201d According to the respondent, this is an over-charge. The credit limit for the post- paid mobile connection was Rs 2,300 until the bill dated 8 November 2013, after which the credit limit was increased to Rs 2,800 for the bill which was generated on 8 December 2013. The respondent has denied undertaking excessive use of the connection, including towards internet facilities. It was alleged that as a prevalent practice, the mobile service provider must intimate the customer when the bill reaches 80 percent of the credit limit. The complaint contains a recital of the steps which were taken by the respondent by contacting the representatives of the appellant following which he registered a complaint on 22 December 2013. The respondent instituted the consumer complaint on 25 May 2014 seeking compensation in the amount of Rs 22,000 together with interest, besides consequential reliefs. 3. The appellant raised an objection to the maintainability of the complaint based on a judgment of a two-Judge Bench of this Court in General Manager, Telecom v. M Krishnan and Another 4. The District Forum dismissed the application and directed that a written statement must be submitted by the appellant on all issues including on the issue of jurisdiction. It was observed that the appellant, a private service provider is not a \u2018telegraph authority\u2019 for the purposes of Section 7B of the Indian Telegraphic Act 1885 5; however, the issue of jurisdiction could not be determined without the filing of a written statement. In this context, it was observed: \u201c17. [\u2026] In these circumstances also instead of taking decision on preliminary issue i.e jurisdiction, it is (2009) 8 SCC 481 \u201cAct of 1885\u201d reasonable and legal that whole complaint is heard on merits and decision regarding jurisdiction is also taken in it.\u201d The order of the District Forum was questioned before the State Consumer Disputes Redressal Commission 6, Gujarat. The SCDRC held by an order dated 30 November 2015 that the issue of jurisdiction could be raised as a preliminary issue. On merits, the SCDRC relied on the letter of the Department of Telecommunication dated 24 January 2014 where it was stated that the judgment in M Krishnan (supra) on Section 7B of the Act of 1885 would not be applicable to a private service provider since it is not a \u2018Telegraph Authority\u201d. For this purpose, reliance was also placed on Bharthi Hexacom Ltd. v. Komal Prakash 7. The State Forum observed that: \u201c [\u2026] under the above mentioned circumstances for a dispute under Sect. 7(B) between Private Service Provider and Consumer the authority cannot take decision because, for Private Service provider any arrangement is not made in the above act regarding Telegraphic Authority are not given to the Service Provider, hence, the Learned Consumer Forum has the jurisdiction to hear, decide and dispose of the dispute between the Private service Provider and consumer.\u201d The matter was thereafter carried in revision to the NCDRC. The NCDRC by its judgment dated 26 May 2016 affirmed the view of the SCDRC. 4. Mr Aditya Narain, learned counsel appearing on behalf of the appellant submits that Section 7B of the Act of 1885 provides a statutory remedy of arbitration. Counsel submitted that in view of the statutory remedy, which is a remedy under a special statute, the jurisdiction of the consumer forum is ousted. In this context, besides relying on the provisions of Section 7B, counsel adverted \u201cSCDRC\u201d or \u201cState Forum\u201d Misc Application No. 204/2014 in Revision Petition Application No. 12 to the definitions of the expression \u2018telecom officer\u2019 in Section 3(2) and of \u2018telegraph authority\u2019 in Section 3(6). 5. The principal issue which arises for determination is whether the existence of a remedy under Section 7B of the Act of 1885 ousts the jurisdiction of the consumer forum under the Consumer Protection Act 1986 8. 6. Section 11 of the Act of 1986 specified the jurisdiction of the District Forum. Section 11(1) provided as follows: \u201c11. Jurisdiction of the District Forum.\u2014(1) Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed does not exceed rupees twenty lakhs.\u201d 7. In terms of Section 11(1), the District Forum was conferred with the jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed did not exceed a stipulated amount. The amount was progressively revised from Rs 1 lakh to Rs 5 lakhs and eventually to Rs 20 lakhs. The expression \u2018service\u2019 is defined in Section 2(o) in the following terms: \u201c2 (o) \u201cservice\u201d means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.\u201d 8. The expression \u2018deficiency\u2019 is defined in Section 2(g): \u201c2(g) \u201cdeficiency\u201d means any fault, imperfection, \u201cAct of 1986\u201d shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.\u201d 9. The definition of the expression \u2018service\u2019 is couched in wide terms. The width of statutory language emerges from the manner in which the definition is cast. Parliament has used the expression \u201cservice of any description which is made available to potential users\u201d. The definition employs the \u2018means and includes formula\u2019. The means part of the definition incorporates service of \u201cany\u201d description. The inclusive part incorporates services by way of illustration, such as facilities in connection with banking, finance, insurance, transport, processing, supply of electrical and other energy, board or lodging and housing construction. The inclusive part is prefaced by the clarification that the services which are specified are not exhaustive. This is apparent from the expression \u201cbut not limited to\u201d. The last part of the definition excludes (i) the rendering of any service free of charge; and (ii) services under a contract of personal service. Parliament has confined the exclusion only to two specified categories. The initial part of the definition however makes it abundantly clear that the expression \u2018service\u2019 is defined to mean service of any description. In other words, a service of every description would fall within the ambit of the statutory provision. 10. The Act of 1986 was a milestone in legislative efforts designed to protect the welfare and interest of consumers. The long title to the Act specifies that it is an Act \u201cto provide for better protection of the interest of consumers\u201d. Paragraph 2 of the Statement of Objects and Reasons accompanying the introduction of the Bill in Parliament specifies the objects in the following terms: \u201c2. It seeks, inter alia, to promote and protect the rights of consumers such as\u2014 (a) the right to be protected against marketing of goods which are hazardous to life and property; (b) the right to be informed about the quality, quantity, potency, purity, standard and price of goods to protect the consumer against unfair trade practices; (c) the right to be assured, wherever possible, access to variety of goods at competitive prices; (d) the right to be heard and to be assured that consumers' interests will receive due consideration at appropriate forums; (e) the right to seek redressal against unfair trade practices or unscrupulous exploitation of consumers; and (f) right to consumer education.\u201d 11. Section 4 of the Act of 1885 vests the Central government with the exclusive privilege of establishing, maintaining and working telegraphs. The expression \u2018telegraph\u2019 finds its definition in Section 3(1AA). Under the proviso to Section 4(1) the Central Government is empowered to grant a license to any person to establish, maintain or work a telegraph within any part of India. Section 7B contains a provision for the arbitration of disputes and is in the following terms: \u201c7B. Arbitration of disputes.\u2014(1) Except as otherwise expressly provided in this Act, if any dispute concerning any telegraph line, appliance or apparatus arises between the telegraph authority and the person for whose benefit the line, appliance or apparatus is, or has been, provided, the dispute shall be determined by arbitration and shall, for the purposes of such determination, be referred to an arbitrator appointed by the Central Government either specially for the determination of that dispute or generally for the determination of disputes under this section. (2) The award of the arbitrator appointed under sub- section (1) shall be conclusive between the parties to the dispute and shall not be questioned in any court.\u201d 12. Under Section 7B, any dispute concerning a telegraph line, appliance or apparatus, between the telegraph authority and the person for whose benefit the line, appliance or apparatus is or has been provided has to be determined by arbitration. Such a dispute has to be referred to an arbitrator appointed by the Central Government either especially for the determination of that dispute or generally for the determination of the disputes under the Section. The expression \u2018telegraph authority\u2019 is defined in Section 3(6) 9. 13. The submissions of the appellant proceed on the basis that as a private telecom service provider, any dispute of a subscriber with it is encompassed by the remedy of arbitration in terms of Section 7B of the Act of 1885. Even if that be so, the issue in the present case is whether this would oust the jurisdiction of the consumer forum. The definition of the expression \u2018service\u2019, as already noticed, is embodied in wide terms. The District Forum is entrusted with the jurisdiction to entertain all complaints where the value of goods or services and the compensation claimed do not exceed the stipulated threshold. Under Section 14, where the District Forum is satisfied that the allegations in the complaint about the services are proved, it is empowered to pass remedial orders in terms of the provisions of sub-section (1). While the Act of 1885 can be construed to be a special enactment for regulating telegraphs, the Act of 1986 is a special (and later) enactment intended to protect the interest and welfare of consumers. Section 3(6) of the Act of 1885 defines \u2018telegraph authority\u2019 thus: \u201ctelegraph authority\u201d means the Director General of 1 [Posts and Telegraphs], and includes any officer empowered by him to perform all or any of the functions of the telegraph authority under this Act\u201d; Though the present case relates to the period before the enactment of the Consumer Protection Act 2019 10, an important aspect of the matter is that the definition of the expression \u2018service\u2019 in Section 2(42) of the later Act specifically incorporates telecom services 11. 14. The submission which was urged on behalf of the appellant was that the specific incorporation of telegraph services in the Act of 2019 is an indicator that it was only as a result of the new legislation that telecom services were brought within the jurisdiction of the consumer fora. This submission cannot be accepted for the simple reason that the specification of services in Section 2(s) of the earlier Act of 1986 was illustrative. This is apparent from the use of the expression \u2018includes but not limited to\u2019. The specification of services in Section 2(s) of the erstwhile Act was therefore not intended to be an exhaustive enumeration of the services which are comprehended within the definition. On the contrary, by adopting language which provides that the expression \u2018service\u2019 would mean service of any description which is made available to potential users, Parliament indicated in unambiguous terms that all services would fall within the ambit of the definition. The only exception was in the case of (i) services rendered free of charge; and (ii) services under a contract of personal service. 15. In Emaar MGF Land Ltd. v. Aftab Singh 12, this Court has held that an arbitration agreement governed by the Arbitration and Conciliation Act 1996 will \u201cAct of 2019\u201d Section 2(42) of the Consumer Protection Act, 2019 is as follows: - \"service\" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, telecom, boarding or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service\u201d; (2019) 12 SCC 751 not oust the jurisdiction of the consumer forum to entertain a complaint of deficiency of goods or services. The Court relied on Section 3 13 of the Act of 1986, which provides that the provisions of the Act are in addition to and not in derogation of the provisions of any other enactment. The following observations of this Court are relevant: \u201c19. Section 3 of the Consumer Protection Act provided that the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. Noticing the object and purpose of the Act as well as Section 3, this Court in Thirumurugan Coop. Agricultural Credit Society v. M. Lalitha [Thirumurugan Coop. Agricultural Credit Society v. M. Lalitha, (2004) 1 SCC 305] , laid down the following in paras 11 and 12 : (SCC p. 312) \u201c11. From the Statement of Objects and Reasons and the scheme of the 1986 Act, it is apparent that the main objective of the Act is to provide for better protection of the interest of the consumer and for that purpose to provide for better redressal, mechanism through which cheaper, easier, expeditious and effective redressal is made available to consumers. To serve the purpose of the Act, various quasi-judicial forums are set up at the district, State and national level with wide range of powers vested in them. These quasi- judicial forums, observing the principles of natural justice, are empowered to give relief of a specific nature and to award, wherever appropriate, compensation to the consumers and to impose penalties for non-compliance with their orders. 12. As per Section 3 of the Act, as already stated above, the provisions of the Act shall be in addition to and not in derogation of any other provisions of any other law for the time being in force. Having due regard to the scheme of the Act and purpose sought to be achieved to protect the interest of the consumers better, the provisions are to be interpreted broadly, positively and purposefully in the context of the present case to give meaning to additional/extended jurisdiction, particularly when Section 3 seeks to provide remedy under the Act in addition to other Section 3 \u2013 Act not in derogation of any other law- \u201cThe provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.\u201d remedies provided under other Acts unless there is a clear bar.\u201d 16. The only distinction in the present case is that where Section 7B of the Act of 1885 applies, a statutory remedy of arbitration is provided. The fact that the remedy of an arbitration under the Act 1885 is of a statutory nature, would not oust the jurisdiction of the consumer forum. The Act of 1986 and its successor, the Act of 2019 are subsequent enactments which have been enacted by Parliament to protect the interest of consumers. Hence, an ouster of jurisdiction cannot be lightly assumed unless express words are used or such a consequence follows by necessary implication. 17. The judgment of a two-Judge Bench of this Court in M Krishnan (supra) arose from a decision of the Kerala High Court. The dispute, in that case, arose from the disconnection of a telephone connection for the non-payment of the bill. The District Forum allowed the complaint. The writ petition was dismissed. The proceedings resulted in a reference to a Full Bench of the Kerala High Court, which dismissed the writ appeal against the judgment of the Single Judge. Before this Court, the jurisdiction of the consumer forum was in issue. In that context, a two-Judge Bench of this Court held thus: \u201c5.In our opinion when there is a special remedy provided in Section 7-B of the Telegraph Act regarding disputes in respect of telephone bills, then the remedy under the Consumer Protection Act is by implication barred.\u201d The Court also relied on Rule 413 of the Telegraph Rules in terms of which all services relating to telephones are subject to the Telegraph Rules. The Court held that the special law would override the general law and concluded that the High Court was not correct in upholding the jurisdiction of the consumer forum. 18. We are unable to subscribe to the view which has been adopted in the above decision in M Krishnan (supra). The decision is incorrect on two grounds. First, it failed to recognize that the Act of 1986 is not a general law but a special law that has been enacted by Parliament specifically to protect the interest of consumers. Second, even if it is assumed that the Act of 1986 is a general law, it is a settled position of law that if there is any inconsistency between two legislations, the later law, even if general in nature, would override an earlier special law. In Ajoy Kumar Banerjee v. Union of India14, a three-judge Bench of this Court observed: \u201c38\u2026As mentioned hereinbefore if the Scheme was held to be valid, then the question what is the general law and what is the special law and which law in case of conflict would prevail would have arisen and that would have necessitated the application of the principle Generalia specialibus non derogant. The general rule to be followed in case of conflict between two statutes is that the later abrogates the earlier one. In other words, a prior special law would yield to a later general law, if either of the two following conditions is satisfied: \u201c(i) The two are inconsistent with each other. (ii) There is some express reference in the later to the earlier enactment.\u201d If either of these two conditions is fulfilled, the later law, even though general, would prevail. 39. From the text and the decisions, four tests are deducible and these are: (i) The legislature has the undoubted right to alter a law already promulgated through subsequent legislation, (ii) A special law may be altered, abrogated or repealed by a later general law by an express provisions, (iii) A later general law will override a prior special law if the two are so repugnant to each other that they cannot co-exist even though no express provision in that behalf is found in the general law, and (iv) It is only in the absence of a provision to the contrary and of a clear inconsistency that a special law will remain wholly unaffected by a later general law. See in this connection, Maxwell on the Interpretation of Statutes, Twelfth Edn., pp. 196-198.\u201d (1984) 3 SCC 127 19. In any event, the decision in M Krishnan (supra) also fails to note that the Act of 1986 is a special law providing protection to consumers. Crucially, M Krishnan (supra) fails to notice that Section 3 of the Act of 1986 clearly provides that the remedies available under the Act are in addition to the remedies available in other statutes and the availability of additional remedies would not bar a consumer from filing a complaint under the Act of 1986. Section 100 of the Act of 2019 corresponds to Section 3 of the Act of 1986. In Emaar MGF Land Ltd. (supra), this Court held that the complaint under the Act of 1986 is a special remedy provided to a consumer in addition to the remedies that can be availed of by them, including arbitration. In Imperia Structures Ltd. v Anil Patni 15, this Court held that the remedies available under the Act of 1986 are in addition to the remedies available under other statutes, including special statutes like the Real Estate (Regulation and Development) Act 2016 16. This Court reiterated the settled position of law in the following terms: \u201c23. It has consistently been held by this Court that the remedies available under the provisions of the CP Act are additional remedies over and above the other remedies including those made available under any special statutes; and that the availability of an alternate remedy is no bar in entertaining a complaint under the CP Act.\u201d 20. The above position was reiterated in IREO Grace Realtech (P) Ltd. v. Abhishek Khanna 17 by a three-judge Bench of this Court, of which one of us (Justice DY Chandrachud) was a part. Justice Indu Malhotra, speaking for the Bench invoked the doctrine of election, which provides that when two remedies are available for the same relief, the party at whose disposal such remedies are (2020) 10 SCC 783 \u201cRERA\u201d 2021 SCC OnLine SC 277 available, can make the choice to elect either of the remedies as long as the ambit and scope of the two remedies is not essentially different. These observations were made in the context of an allottee of an apartment having the choice of initiating proceedings under the Act of 1986 or the RERA. In the present case, the existence of an arbitral remedy will not, therefore, oust the jurisdiction of the consumer forum. It would be open to a consumer to opt for the remedy of arbitration, but there is no compulsion in law to do so and it would be open to a consumer to seek recourse to the remedies which are provided under the Act of 1986, now replaced by the Act of 2019. The insertion of the expression \u2018telecom services\u2019 in the definition which is contained in Section 2(42) of the Act of 2019 cannot, for the reasons which we have indicated be construed to mean that telecom services were excluded from the jurisdiction of the consumer forum under the Act of 1986. On the contrary, the definition of the expression \u2018service\u2019 in Section 2(o) of the Act of 1986 was wide enough to comprehend services of every description including telecom services. 21. For the above reasons, we affirm the judgment of the NCDRC which came to the conclusion that the District Forum has the jurisdiction to entertain and try the complaint. 22. The appeal shall accordingly stand dismissed. 23. Pending applications, if any, stand disposed of. Civil Appeal No 1389 of 2022 [Arising out of SLP(C) No 9071/2016] & Civil Appeal No 4274 of 2016 1. Leave granted. 2. In view of the judgment delivered today in Idea Cellular Ltd vs Ajay Kumar Agarwal [Civil Appeal No 923 of 2017], the appeals shall stand allowed and the impugned judgments and orders of the NCDRC dated 30 April 2014 in Revision Petition No 531 of 2013 and 11 April 2013 in Revision Petition No 95 of 2013 shall stand set aside. Consumer Complaint No 238 of 2010 and Complaint No 1457 of 2007 shall stand restored to the Consumer Disputes Redressal Forum, Kasargod and Consumer Disputes Redressal Forum, Delhi respectively. 3. Pending applications, if any, stand disposed of. \u2026.....\u2026...\u2026.......\u2026\u2026\u2026\u2026\u2026\u2026........J. [Dr Dhananjaya Y Chandrachud] ..\u2026....\u2026........\u2026\u2026\u2026\u2026\u2026\u2026.\u2026........J. [Surya Kant] ..\u2026....\u2026........\u2026\u2026\u2026\u2026\u2026\u2026.\u2026........J. [Vikram Nath] New Delhi; February 16, 2022 CKB",
        "1305957": "",
        "101482639": "HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED A.F.R. Court No. - 1 Case :- APPLICATION U/S 482 No. - 737 of 2020 Applicant :- Chitra @ Bebi Opposite Party :- State of U.P. and Another Counsel for Applicant :- Atul Kumar,Deepak Dubey,M J Akhtar Counsel for Opposite Party :- G.A.,Amit Daga Hon'ble J.J. Munir,J. 1. It is idiomatically said that 'Dead men tell no tales'. But, sometimes, before a man crosses over to the netherworld, he may speak his mind or tell the circumstances that led to his death - homicidal or suicidal. In cases of suicide, an authentic and dependable suicide note is the most sterling evidence about what drove the man to take his own life. 2. This application under Section 482 of the Code of Criminal Procedure, 19731 seeks to challenge the impugned charge-sheet bearing number 219A of 2019 dated November the 15th, 2019 submitted in Case Crime No. 223 of 2019, under Sections 306, 506 of the Indian Penal Code, 18602, Police Station - Meerapur, District - Muzaffarnagar and the entire proceedings in Case No. 1984/9 of 2019, pending before the learned Additional Chief Judicial Magistrate, Court No. 3, Muzaffarnagar, as against the applicant. This application calls in question the aforesaid charge-sheet, primarily on the ground that no prima facie case against the applicant is disclosed on the basis of material carried in the impugned charge sheet, about her involvement in abetting the suicide committed by her brother-in-law (her sister's deceased husband), the Late Mohan Kumar. 3. This prosecution commenced on a First Information Report3 lodged by the deceased's brother, Rahul Kumar Sharma, on 28.07.2019, about the suicidal death of his brother on 25th of July, 2019. The FIR nominates the deceased's in laws, numbering seven, including his wife Smt. Menka alias Monty, his mother-in-law Smt. Kusum Lata, his three sisters-in-law, to wit, Indu Sharma, Chhaya Sharma and Romika Sharma, besides his brother-in-law Rajat Sharma. Another person nominated is one Rajendra Chaudhary, said to be an uncle of sorts to the deceased's in-laws. The applicant is not named in the FIR. The substance of the information, addressed to the police, says that the named in-laws of the deceased were frequently troubling him and he was in distress. Rajendra Chaudhary had repeatedly threatened the deceased to death and demanded money of him. The deceased had shared the last mentioned fact with the informant, but his in-laws would not give up on their wayward conduct and Rajendra Chaudhary and the other in-laws would repeatedly demand money of the deceased. It is reported that distressed over this issue, on 25.07.2019, at 12 O' Clock, the deceased jumped off the bridge built over the Ganga barrage, and into the river, committing suicide. It is also said that he had left home, riding the informant's motorcycle, which was later later on found. A suicide note in the deceased's handwriting was found at the informant's Dharm Kanta, wherein the deceased had blamed harassment by his wife and in-laws as the cause driving him to commit suicide. It is said in the closing lines of the FIR that the deceased did commit suicide because of the harassment that his wife and in-laws inflicted on him. 4. Heard Mr. V.M. Zaidi, leanred Senior Advocate, assisted by Mr. Imran Khan, learned Counsel for the applicant, Mr. Amit Daga, learned Counsel appearing on behalf of opposite party no. 2, and Mr. Deepak Mishra, learned Additional Government Advocate appearing on behalf of the State. 5. Mr. V.M. Zaidi, learned Senior Advocate, has primarily submitted that no prima facie case is made out against the applicant, as the allegations and the material collected during investigation do not show that there was any act done by the applicant vis-\u00e0-vis the deceased, that may be said to constitute either ''instigation' or a ''conspiracy' with the other co-accused, or ''aid' within the meaning of Section 107 IPC that led the deceased to commit suicide. He submits that in the absence of any material about an act or omission constituting instigation, conspiracy or aid on the applicant's part, that led the deceased to commit suicide, no case worth trial against the applicant is prima facie made out. He submits that on this ground, the impugned charge-sheet, as against the applicant, deserves to be quashed, which, if not done, would be an abuse of process of Court and lead to ends of justice being defeated. It is on the aforesaid case that Mr. Zaidi has advanced his submissions before this Court. 6. The learned Senior Advocate has proceeded to point out that the applicant, much unlike the other in-laws, has not been nominated in the FIR. Her name has been introduced on the basis of a second thought by the informant and the other family members of the deceased, who, according to the learned Senior Advocate, in any case, have launched a malicious and vindictive prosecution against the deceased's wife and in-laws for an oblique motive. That oblique motive, according to the learned Senior Advocate, is that the informant wants to deprive the deceased's wife of her inheritance in her husband's property, both movable and immovable. He has pointed out that the entire prosecution is mala fide and designed to achieve the last mentioned purpose. He has been at pains to point out that the informant has launched another mala fide prosecution against deceased's in-laws, reporting them for an offence involving a murderous assault on the informant and his family, besides loot of ornaments that belonged to the deceased's wife. By a reference to the other prosecution arising from an FIR registered as Case Crime No. 224 of 2019, under Sections 395, 323, 307, 364, 506, 145 IPC, Police Station - Meerapur, District - Muzaffarnagar, learned Senior Advocate urges that it shows the underlying mala fides that animate the impugned prosecution and its oblique purpose. Mr. V.M. Zaidi, further elaborating on his submissions, says that the applicant was not named in the FIR, and also in the earlier statement of the first informant recorded on 28.07.2019, under Section 161 of the Code or the statements of the other witnesses also recorded under Section 161. It is pointed out that the applicant's name was introduced for the first time in the statement of one Sushil Kumar, about a month after the incident, as a result of the continuing efforts, to bring oblique pressure upon the wife's family in order to coerce the wife into giving up her share in the deceased's property. The learned Senior Advocate has also pointed out to the various steps taken by the informant to get his name mutated over the deceased's share in the family's agricultural land and transfer of funds done from the deceased's bank account to his own. 7. Learned Senior Counsel has drawn the Court's attention to a copy of the mutation application dated 30.08.2019 moved by the informant before the Consolidation Officer-II, Sadar, Muzaffarnagar and registered as Case no.520. This document is annexed to the supplementary affidavit dated 10.09.2020, as Annexure no. SA-4. Learned Senior Counsel has also drawn the Court's attention to a photostat copy of the deceased's bank account statement, bearing Account ID no. 1609010100512190, where transfer of funds to the informant's Account have been shown. A copy of the said statement is annexed as part of Annexure no. SA-5 to the supplementary affidavit, last mentioned. 8. Mr. V.M. Zaidi, learned Senior Counsel, in support of his submissions noticed in the opening part of this judgment about the absence of necessary ingredients to make out a prima facie case of abetment to commit suicide, has placed reliance upon the decision of the Supreme Court in Arnab Manoranjan Goswami vs. State of Maharashtra and others4 and further on a decision of the Supreme Court in Gurcharan Singh vs. State of Punjab5. Reliance has also been placed on a decision of this Court in Sudhakar Pathak vs. State of U.P.6. All these authorities have been pressed in aid of the essential submission that the three necessary ingredients to attract an offence of abetment to suicide, that is to say, instigation, aid or conspiracy are at all not discernible from the material collected during investigation. 9. It must be remarked here that in aid of the Application, the applicant has filed three supplementary affidavits, to wit, the one dated 09.10.2020, another dated 16.01.2020 and still another dated 17.02.2020. A counter affidavit has been filed on behalf of the complainant/ opposite party, to which the applicant has filed a rejoinder. The State have not come up with any return, but at the hearing, supported the impugned proceedings through Mr. Deepak Mishra, learned A.G.A. The learned A.G.A. says that the facts here show it to be a triable case, which ought not to be quashed. 10. Mr. Amit Daga, learned Counsel appearing for the second opposite party/ informant submits that though the applicant is not named in the FIR, but during the course of investigation, the Investigating Officer found material showing her involvement in the crime. In this regard, he has, particularly, referred to the text messages sent by the deceased through his mobile phone to the mobile phone of his relatives, while alive. These messages have also been treated as a part of the suicide note and made part of the police papers. These messages specifically carry the name of the applicant as one of the persons responsible for driving the deceased to commit suicide. Learned Counsel for the second opposite party, therefore, says that it cannot be said that there is no material against the applicant connecting her to the crime. It is emphasized that the material collected during investigation shows that the applicant along with the other co-accused - all in-laws of the deceased created such inexorable pressure, where the deceased had no option except to put an end to his life. It is pointed out with reference to the averments in paragraph no. 9 of the counter affidavit and the suicide note annexed as Annexure no. CA-1 to the said affidavit that what the applicant has annexed for the deceased's suicide note, is not the complete document. It is pointed out that the suicide note is a part of the case diary, annexed to the second parcha dated 29.07.2019. 11. Learned Counsel for the second opposite party submits that though the suicide note, a copy whereof is annexed as Annexure no. CA-1, does not specifically carry the applicant's name, but read as a whole, squarely blames all of the deceased's in-laws about that extreme position, where he was impelled to end his life. He submits that it is quite another matter that the deceased has, particularly, emphasized the malevolent role of his brother-in-law, Rajat and sister-in-law, Indu, but that, according to Mr. Daga, learned Counsel for the second opposite party, does not show that the applicant was no part of the conspiracy or instigation, that drove him to commit suicide. It is also submitted by the learned Counsel for the second opposite party, relying on averments made in paragraph no.10 of the counter affidavit that prior to scripting the suicide note, the deceased sent WhatsApp messages, carrying his photograph as well as a video from his mobile no. 9997589058 to the mobile number of the informant's elder brother, Sushil Kumar Sharma, where he specifically blamed the applicant alongwith the other co-accused as persons, who had tortured and harassed him to an extent that he had no option except to commit suicide. Copies of those WhatsApp messages are included in the case diary. 12. It is pointed out by the learned Counsel for the second opposite party that since the WhatsApp messages were sent on the WhatsApp messenger of his elder brother, Sushil Kumar Sharma, he was unaware about these messages when he lodged the FIR, or made his earlier statement to the police. It was during the course of investigation that Sushil discovered these WhatsApp messages on his phone and disclosed them to the police, who made them part of the case diary. It is these messages, which have shown the complicity of the applicant and certainly constitute material, on the basis whereof cognizance ought to be taken. It is urged with much emphasis on behalf of the second opposite party that the continued misbehaviour, torture, ill-treatment and harassment by the deceased's wife and in-laws, including the applicant, drove him to commit suicide and those acts do constitute intentional aid within the meaning of Section 107 IPC, besides conspiracy involving all the accused, so as to attract the provisions of Section 306 IPC. 13. This Court has keenly considered the submissions advanced on both sides and perused the record. It would be of seminal importance to extract the suicide note. The suicide note is part of CD no.2 dated 29.07.2019 and reads (in Hindi vernacular): \"\u092e\u0948 \u092e\u094b\u0939\u093f\u0924 \u0936\u0930\u094d\u092e\u093e \u0906\u091c \u0926\u0941\u0916\u0940 \u0939\u094b\u0915\u0930 \u0906\u0924\u094d\u092e\u0939\u0924\u094d\u092f\u093e \u0915\u0930\u0928\u0947 \u091c\u093e \u0930\u0939\u093e \u0939\u0942\u0901, \u092e\u0947\u0930\u0940 \u092e\u094c\u0924 \u0915\u0940 \u0938\u093e\u0930\u0940 \u091c\u093f\u092e\u094d\u092e\u0947\u0926\u093e\u0930\u0940 \u092e\u0947\u0930\u0940 \u0938\u0938\u0941\u0930\u093e\u0932 \u0935\u093e\u0932\u094b \u0915\u0940 \u0939\u0948, \u092e\u0947\u0930\u0940 \u0938\u092c\u0938\u0947 \u092c\u0921\u093c\u0940 \u0938\u093e\u0932\u0940 \u0907\u0928\u094d\u0926\u0941 \u0936\u0930\u094d\u092e\u093e, \u091b\u093e\u092f\u093e, \u0930\u091c\u0924 \u0936\u0930\u094d\u092e\u093e, \u0930\u094b\u092e\u093f\u0924\u093e \u0914\u0930 \u0938\u092c\u0938\u0947 \u0916\u093e\u0938 \u0930\u093e\u091c\u0947\u0928\u094d\u0926\u094d\u0930 \u091a\u094c\u0927\u0930\u0940 \u0909\u0930\u094d\u092b \u091a\u093e\u091a\u093e \u0914\u0930 \u092e\u0947\u0930\u0940 \u0938\u093e\u0938 \u0915\u0941\u0938\u0941\u092e\u0932\u0924\u093e \u0915\u0940 \u0939\u0948\u0964 \u092f\u0947 \u0938\u092c \u092e\u0941\u091d \u092a\u0930 \u0928\u093e\u091c\u093e\u092f\u091c \u0926\u092c\u093e\u0935 \u092c\u0928\u093e\u0924\u0947 \u0939\u0948\u0964 \u092e\u0941\u091d\u0947 \u0926\u093f\u0928 \u0930\u093e\u0924 \u0927\u092e\u0915\u0940 \u0926\u0947\u0924\u0947 \u0930\u0939\u0924\u0947 \u0939\u0948\u0964 \u092e\u0941\u091d\u0947 \u092c\u0939\u0941\u0924 \u092a\u0930\u0947\u0936\u093e\u0928 \u0915\u0930 \u0930\u0916\u093e \u0939\u0948\u0964 \u092e\u0947\u0930\u0940 \u092a\u0924\u094d\u0928\u0940 \u0915\u093e \u092e\u0941\u091c0\u0928\u0917\u0930 \u092e\u0947\u0902 \u0928\u093e\u091c\u093e\u092f\u091c \u0930\u093f\u0936\u094d\u0924\u093e \u0939\u0948\u0964 \u0935\u094b \u092e\u0941\u091d \u092a\u0930 \u0938\u0938\u0941\u0930\u093e\u0932 \u0915\u0947 \u092a\u093e\u0938 \u0918\u0930 \u0932\u0947\u0915\u0930 \u0930\u0939\u0928\u0947 \u0915\u093e \u0926\u092c\u093e\u0935 \u092c\u0928\u093e\u0924\u0940 \u0939\u0948\u0964 \u092e\u0941\u091d\u0947 \u0917\u093e\u0932\u0940 \u0926\u0947\u0924\u0940 \u0939\u0948\u0964 \u0916\u093e\u0928\u093e \u0924\u0915 \u091b\u0940\u0928 \u0932\u0947\u0924\u0940 \u0939\u0948\u0964 \u092e\u0947\u0930\u0940 \u0906\u092a \u0938\u092c\u0938\u0947 \u092c\u093f\u0928\u0924\u0940 \u0939\u0948 \u0915\u093f \u092e\u0947\u0930\u0947 \u0938\u093e\u0932\u0947 \u0930\u091c\u0924 \u0915\u094b \u092b\u0949\u0938\u0940 \u0914\u0930 \u0907\u0928\u094d\u0926\u0941 \u0915\u094b \u0938\u091c\u093e\u092f\u0947 \u092e\u094c\u0924 \u091c\u0930\u0942\u0930 \u0926\u0947\u0928\u093e \u0914\u0930 \u092e\u0947\u0930\u093e \u0915\u094b\u0908 \u092a\u0941\u0924\u094d\u0930 \u0928\u0939\u0940\u0902 \u0939\u0948\u0964 \u092e\u0947\u0930\u0940 \u0938\u093e\u0930\u0940 \u0938\u092e\u094d\u092a\u0924\u094d\u0924\u093f \u092e\u0947\u0930\u0947 \u092a\u094d\u0930\u093f\u092f \u092d\u093e\u0908 \u0930\u093e\u0939\u0941\u0932 \u0915\u0941\u092e\u093e\u0930 \u0915\u094b \u0926\u0947 \u0926\u0940 \u091c\u093e\u092f\u0947 \u0914\u0930 \u0917\u0948 \u0906\u091c \u0926\u0941\u0916\u0940 \u0939\u094b\u0915\u0930 \u091c\u093f\u0938\u0915\u093e \u0915\u093e\u0930\u0923 \u092e\u0947\u0930\u0940 \u0938\u0938\u0941\u0930\u093e\u0932 \u0915\u0947 \u0938\u092e\u0938\u094d\u0924 \u0935\u094d\u092f\u0915\u094d\u0924\u093f\u0917\u0923 \u0939\u0948 \u092e\u0948\u0902 \u0906\u0924\u094d\u092e \u0939\u0924\u094d\u092f\u093e \u0915\u0930\u0928\u0947 \u091c\u093e \u0930\u0939\u093e \u0939\u0942\u0901\u0964\" 14. Quite apart from it, are the contents of some WhatsApp messages, still photograph and videos, sent by the deceased to his elder brother, Sushil on 25.07.2019 at 11:26 a.m. in Hindi, but written in Roman script, which read thus: \"Meri mout ki sari jimmedari meri sasural wali ki meri sali Indu, Chhaya Rajat, Chitra, romita, Rajendra Choudhary (ChaCha). Ye sab mujh par najayaj dabav banate rahten hai or Jaan se Marni ki damki deten rahten hai\" 15. This message shows that the deceased was last seen on Thursday at 11:56 a.m. 16. There is yet another WhatsApp message, which carries the same suicide note, that was recovered from the informant's Dharm Kanta and made part of the case diary. There is one oddity, or at least a feature about the prosecution case, which shows that opportunity came knocking to save the deceased, but the one who could did not act. There is a statement attributed to one Faeemuddin, son of late Badaruddin recorded under Section 161 of the Code, where he says that the deceased scripted the suicide note in his presence and said that he was going to commit suicide, driven to it by his wife, Menaka and the in-laws. It is rather baffling that if the witness saw the deceased writing a suicide note, why he did not prevent him from moving away to accomplish his fatal intentions; but that is all about it. This statement under Section 161 may be true or not, but it does not, of its own, render the prosecution case incredible. 17. The material collected during investigation by the police shows that there are statements of the informant Sushil Sharma, the deceased's sister-in-law Smt. Nirupama Sharma wife of Sushil Sharma, Smt. Priyanka Sharma, another sister-in-law of the deceased, Sonu Dhimaan, an unrelated witness, who happened to pass by the deceased's residence on 25.07.2019, and another unrelated witness Akash Rastogi, who also passed by the deceased's house on 25.07.2019; and all of them saw the deceased's wife misbehave with him. The statements of the informant and the two sisters-in-law of the deceased show, amongst other things, that the deceased's wife would often stay at her parents' place, rather than her matrimonial home. She would repeatedly ask for money, apparently to meet her expenses and enforce her demand by show of anger and misbehaviour towards her husband. The deceased's wife wanted him to sell his property at Town Meerapur, District Muzaffarnagar and move over to her place at Patel Nagar, Muzaffarnagar. She was persuaded by the deceased's family not to indulge in that kind of behaviour, but she was aided in her pernicious conduct by her sisters, Chhaya, Romita, Indu, Chitra (applicant), her mother Kusum Lata and uncle Rajendra. All of them would coerce the deceased to part with money, and upon refusal, would threaten him with death. 18. There is a particular instance that appears in the statements of Smt. Nirupama Sharma, Smt. Priyanka Sharma and the two passersby, Sonu Dhimaan and Akash Rastogi, which indicate that the deceased Mohit Sharma and his wife were seen outside their house and the deceased's wife was misbehaving with him. The two sisters-in-law have said that the deceased's wife, Menaka beat him up publicly, a fact which many saw. The two public witnesses, who claimed to have witnessed the occurrence on 25.07.2019, have said that they saw the deceased, Mohit Sharma's wife misbehaving with him while they were passing by. She is alleged to have asked the deceased go somewhere and die. These witnesses also said that the deceased's wife said that when she demands money of him, he does not pay nor does he go over to Muzaffarnagar. It is said that thereafter Menaka beat him up. To the same effect is the statement of Akash Rastogi. All these statements have been recorded under Section 161 of the Code. The moot question is that, do all these statements taken together as material collected during investigation and the suicide note, besides the WhatsApp messages disclose a triable case of abetment to suicide against the applicant? 19. Gurcharan Singh vs. State of Punjab7 relied upon much by the learned Senior Counsel appearing for the applicant was a case that came up before the Supreme Court in appeal from an order of conviction for an offence punishable under Section 306 IPC. The deceased was the wife of one Dr. Jaspal Singh, whereas the appellant Gurcharan Singh was Dr. Jaspal Singh's brother. The victims were three in number, that is to say, Surjit Kaur, wife of Dr. Jaspal Singh and their two daughters, Geet Pahul and Preet Pahul. Apparently, four persons were charge sheeted after investigation, to wit, Satnam Kaur, who died pending committal proceedings, Gurcharan Singh, Ajit Kaur and Sukhvinder Singh alias Goldy. All of them were in-laws of the deceased, Surjit Kaur. At the conclusion of trial, Ajit Kaur was acquitted, whereas Gurcharan Singh and Sukhvinder Singh were convicted of the charge punishable under Section 306 IPC. The Trial Court awarded each of the accused a term of six years rigorous imprisonment. On appeal to the High Court, the conviction was upheld, but the sentences were reduced to five years' rigorous imprisonment. On appeal to their Lordships of the Supreme Court by Special Leave preferred by Gurcharan Singh, the conviction was overturned and the appellant acquitted. The facts giving rise to the prosecution can no better be described than in their Lordships' words, where these are recorded thus: \"3. The fascicule of facts, indispensable to comprehend the backdrop of the prosecution, has its origin in the inexplicable abandonment of the deceased Surjit Kaur and her two daughters, namely; Geet Pahul and Preet Pahul by Dr Jaspal Singh, their husband and father respectively, about two years prior to the tragic end of his three family members as above. The prosecution version is that Dr Jaspal Singh, who was initially in the government service, had relinquished the same and started a coal factory at Muktsar. He suffered loss in the business and consequently failed to repay the loan availed by him in this regard from the bank. As he and his brother Gurcharan Singh (appellant herein) and others succeeded to the property left by their predecessors, he started medical practice in private. 4. Be that as it may, before leaving his family, he addressed a communication to the bank concerned expressing his inability to repay the loan in spite of his best efforts as he was not possessed of any property in his name. Dr Jaspal Singh was thereafter not to be traced. Following this turn of events, according to the prosecution, his wife Surjit Kaur and his daughters shifted from Jalalabad where they used to stay to Abohar and started residing in a rented house of one Hansraj (PW 3). According to them, they had no source of income and further, they were also deprived of their share in the property and other entitlements, otherwise supposed to devolve on Dr Jaspal Singh. They were also not provided with any maintenance by the family members of her husband -- Jaspal Singh and instead were ill-treated, harassed and intimidated. 5. While the matter rested at that, on 3-10-2000 at about 10.30 p.m., Hansraj, the landlord of the deceased Surjit Kaur, being suspicious about prolonged and unusual lack of response by his tenants, though the television in their room was on, informed the brother of the deceased Surjit Kaur. Thereafter they broke open the door of the room and found all three lying dead. The police was informed and FIR was lodged. 6. In course of the inquisition, the investigating officer collected a suicide note in the handwriting of Surjit Kaur and also subscribed to by her daughter Preet Bahul. The suicide note implicated the appellant, his wife Ajit Kaur and the convicted co-accused Sukhvinder Singh alias Goldy as being responsible for their wretched condition, driving them in the ultimate to take the extreme step. A notebook containing some letters, written by deceased Geet Pahul was also recovered. On the completion of the investigation, which included, amongst others the collection of the post-mortem report which confirmed death due to consumption of aluminium phosphide, a pesticide, charge-sheet was submitted against the three persons named hereinabove along with Satnam Kaur under Sections 306/34 IPC.\" 20. It must be remarked here for the purpose of emphasis, though already apparent, that the decision in Gurcharan Singh came on appeal before their Lordships, where there was the advantage of all evidence recorded during trial being available and analyzed by the Courts below threadbare. The case did not arise on a petition to quash proceedings at the threshold. It was after a consideration of the evidence on record that it was held in Gurcharan Singh : \"21. It is thus manifest that the offence punishable is one of abetment of the commission of suicide by any person, predicating existence of a live link or nexus between the two, abetment being the propelling causative factor. The basic ingredients of this provision are suicidal death and the abetment thereof. To constitute abetment, the intention and involvement of the accused to aid or instigate the commission of suicide is imperative. Any severance or absence of any of these constituents would militate against this indictment. Remoteness of the culpable acts or omissions rooted in the intention of the accused to actualise the suicide would fall short as well of the offence of abetment essential to attract the punitive mandate of Section 306 IPC. Contiguity, continuity, culpability and complicity of the indictable acts or omission are the concomitant indices of abetment. Section 306 IPC, thus criminalises the sustained incitement for suicide. 22. Section 107 IPC defines \"abetment\" and is extracted hereunder: \"107. Abetment of a thing.--A person abets the doing of a thing, who-- First.--Instigates any person to do that thing; or Secondly.--Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.--Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1.--A person, who by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that doing. Explanation 2.--Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.\" Not only the acts and omissions defining the offence of abetment singularly or in combination are enumerated therein, the explanations adequately encompass all conceivable facets of the culpable conduct of the offender relatable thereto. 27. The pith and purport of Section 306 IPC has since been enunciated by this Court in Randhir Singh v. State of Punjab [Randhir Singh v. State of Punjab, (2004) 13 SCC 129 : 2005 SCC (Cri) 56] , and the relevant excerpts therefrom are set out hereunder: (SCC p. 134, paras 12-13) \"12. 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 is required before a person can be said to be abetting the commission of offence under Section 306 IPC. 13. In State of W.B. v. Orilal Jaiswal [State of W.B. v. Orilal Jaiswal, (1994) 1 SCC 73 : 1994 SCC (Cri) 107] , 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 the 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.\" (emphasis supplied) 28. Significantly, this Court underlined by referring to its earlier pronouncement in Orilal Jaiswal [State of W.B. v. Orilal Jaiswal, (1994) 1 SCC 73 : 1994 SCC (Cri) 107] that courts have to be extremely careful in assessing the facts and circumstances of each case to ascertain as to whether cruelty had been meted out to the victim and that the same had induced the person to end his/her life by committing suicide, with the caveat that if the victim committing suicide appears to be hypersensitive to ordinary petulance, discord and differences in domestic life, quite common to the society to which he or she belonged and such factors were not expected to induce a similarly circumstanced individual to resort to such step, the accused charged with abetment could not be held guilty. The above view was reiterated in Amalendu Pal v. State of W.B. [Amalendu Pal v. State of W.B., (2010) 1 SCC 707 : (2010) 1 SCC (Cri) 896]. 29. That the intention of the legislature is that in order to convict a person under Section 306 IPC, there has to be a clear mens rea to commit an offence and that there ought to be an active or direct act leading the deceased to commit suicide, being left with no option, had been propounded by this Court in S.S. Chheena v. Vijay Kumar Mahajan [S.S. Chheena v. Vijay Kumar Mahajan, (2010) 12 SCC 190 : (2011) 2 SCC (Cri) 465]. 30. In Pinakin Mahipatray Rawal v. State of Gujarat [Pinakin Mahipatray Rawal v. State of Gujarat, (2013) 10 SCC 48 : (2013) 4 SCC (Civ) 616 : (2013) 3 SCC (Cri) 801] , this Court, with reference to Section 113-A of the Evidence Act, 1872, while observing that the criminal law amendment bringing forth this provision was necessitated to meet the social challenge of saving the married woman from being ill-treated or forced to commit suicide by the husband or his relatives demanding dowry, it was underlined that the burden of proving the preconditions permitting the presumption as ingrained therein, squarely and singularly lay on the prosecution. That the prosecution as well has to establish beyond reasonable doubt that the deceased had committed suicide on being abetted by the person charged under Section 306 IPC, was emphasised. 31. The assessment of the evidence on record as above, in our considered opinion, does not demonstrate with unqualified clarity and conviction, any role of the appellant or the other implicated in-laws of the deceased Surjit Kaur, as contemplated by the above provisions so as to return an unassailable finding of their culpability under Section 306 IPC. The materials on record, to reiterate, do not suggest even remotely any act of cruelty, oppression, harassment or inducement so as to persistently provoke or compel the deceased to resort to self-extinction being left with no other alternative. No such continuous and proximate conduct of the appellant or his family members with the required provocative culpability or lethal instigative content is discernible to even infer that the deceased Surjit Kaur and her daughters had been pushed to such a distressed state, physical or mental that they elected to liquidate themselves as if to seek a practical alleviation from their unbearable earthly miseries.\" (Emphasis by Court) 21. In Sudhakar Pathak and others vs. State of U.P. and others8 which is again a case that arose on appeal by a convicted husband before this Court - convicted for an offence punishable under Section 306 IPC for abetting suicide by his wife, this Court after a complete review of evidence on record and the law applicable held: \"15. Though, Gurucharan (supra) was a case based on dowry harassment, the last four lines mentioned in bold letters are still relevant and they require specific incident, and not general allegations, having provocative capability to drive the deceased to such distressed state, mental and physical that she could elect to end her life. Routine behaviour, remark or quarrel by husband in matrimonial life in a drunken state cannot be taken to be sufficient to the extent to constitute abetment unless something extra-ordinary, more than normal wear and tear of married life, is shown on or just before the date of incident. In this instant case where admittedly the deceased was suffering from mental illness or disease, the burden of proving close link, in proximity of time between abetment and suicide, heavily lies on prosecution and the prosecution has utterly failed in discharging this burden. 16. This is no principle of law that wherever wife commits suicide, the husband will bear the responsibility and will be held liable. No doubt that in such cases, if the prosecution has discharged its initial burden of proof of guilt and has proved the relationship between abetment by husband and suicide by wife, the accused may be required in view of section 106 of the Evidence Act to explain the circumstances in which the wife committed suicide. But when mental illness of the wife is admitted much before in time from the date of death and the husband is habitual drunkard since marriage and in the habit of causing harassment in drunken state and both have passed more than 15 years of marriage as such giving birth to four children, general allegation of harassment cannot be sufficient to hold him guilty for the offence of abetment of suicide, particularly when the presence of husband in the house around the incident is not established.\" 22. This Court must still again remark that cases where the charge is about abetment to commit suicide, there are very subtle features of evidence that may show the necessary mens rea and the relevant persistent conduct of the accused in driving the deceased to commit suicide. There could be cases where on the material collected during investigation, there is hardly anything to show that the accused or one of them ex facie committed an act proximate in point of time that could drive the deceased to take his life. Again, there could be cases where the role of one of the accused is overt and proximate in point of time, by the standard of a man similarly circumstanced and a sensible man at that, that could lead him to commit suicide. The proximate and immediate conduct of one of the accused rendering the deceased option-less to commit suicide, may not be an impromptu action, provoked by the action of the accused on occasion. It could be the precipitating event behind which stand a long trail of instigation or aid, driven by persistent conduct of one or more of the accused acting together. This is in particular true of a matrimonial relationship, which comes as it does, with abiding social obligations and much legal consequences. A spouse at the receiving end of matrimonial cruelty - mental and physical or both, cannot be compared to a person placed in a different situation of harassment, like an employee perceiving or being actually harassed by his employer, or a student by his teacher. It is for this reason that special laws have been made for women where they commit suicide, within seven years of marriage in the matrimonial home. 23. No doubt, social realities have not yet arisen in the perception of law makers and others as well in similar terms for the other partner in marriage, but the reality remains that in the nature of relationship in matrimony, social and legal obligation arise, which when inter-laid with persistent cruel conduct by the wife, may lead a man to find himself optionless. Of course, it depends on the circumstances of a man, his financial and social status and his general outlook towards life. But, what cannot be ignored is the fact that in the matrimonial relationship both spouses, in sometime, become aware of the others general outlook and the threshold of toleration beyond which the other may not be driven, and if persistently harassed, may adopt fatal options. 24. There is yet another angle to the matter, which holds stronger in case of a matrimonial alliance. The person actually involved in doing an act proximate in point of time to the deceased taking his life, may have others participating with him/her leading to the 'build-up', where the fatal event occurs. These could be those persons who have conspired with the instigator or the one who actively aids the deceased through a proximate act. The role of such persons in the shadows who have conspired would in no measure be less culpable and certainly relevant under Section 107 IPC. No doubt, the evidence about their role would have to be more carefully sifted at the trial, than the person who has acted as the agent provocateur, proximate in point of time. 25. In the present case, this Court finds that whatever evidence has been collected is not one simply about a hair trigger fatal response from an over sensitive man. The parties were together for some four years and had a son. The suicide note, which comprises two parts, the one physically scripted and the other sent by WhatsApp messages, shows definitive allegations against wife and the in-laws. The scripted suicide note shows that the wife, who was staying back at her parents' place at Muzaffarnagar, was carrying on there and forcing the deceased to stay in a house close to her place. The note also says that the wife abuses him and snatches away food from him (\u092e\u0941\u091d\u0947 \u0917\u093e\u0932\u0940 \u0926\u0947\u0924\u0940 \u0939\u0948, \u0916\u093e\u0928\u093e \u0924\u0915 \u091b\u0940\u0928 \u0932\u0947\u0924\u0940 \u0939\u0948). He has blamed his wife and named the other in-laws, who along with her threatened and harassed him. The scripted suicide note goes to the extent of showing that the son is not begotten of him. 26. It must be remarked that though a child born during the subsistence of a valid marriage is presumed to be legitimate and begotten of the husband, subject to fulfillment of the conditions specified under Section 112 of the Evidence Act, 1872 disowning a child born during marriage is frowned upon by the law, but the words carried in the suicide note are those of a man who was on the brink of ending his own life. These are entitled justly to be differently received and assessed. No doubt, in the scripted suicide note, there is conspicuous absence of the applicant's name though all other in-laws have been specifically nominated as part of concerted design and effort to harass the deceased driving him over the brink, but the WhatsApp message, a copy of which is annexed at page 17 to the counter affidavit and is part of the case diary, clearly nominates the applicant also with imputations that have been extracted hereinbefore. 27. The statements of the informant and the two sisters-in-law of the deceased show that the family made efforts to persuade the deceased's wife away from the course of harassment and oppression, but to no avail. The deceased's wife, and if the material collected during investigation, were to withstand scrutiny at the trial, shows that the in-laws of the deceased, including the applicant, sometimes directly and at others through the deceased's wife put the deceased to extreme oppression and threat. The deceased was exposed to insult and humiliation. The material gathered during investigation shows that the immediate and proximate cause for the deceased to take the extreme step was a public humiliation by his wife, co-accused Menaka, who outside the matrimonial home and in full public view, misbehaved with him and on his protest beat him up. Public humiliation of a spouse, particularly, an act of assault by the husband or the wife, may, in the circumstances of long and persistent misbehaviour and harassment, drive a person to take the extreme step of taking his/ her life. 28. In the entirety of the circumstances, in the considered opinion of this Court, suicide committed by the deceased cannot be regarded as an oversensitive or freak reaction of a person, who circumstanced like the deceased, would not ordinarily be expected to exhibit. Much reliance was placed during the hearing by Mr. Zaidi, learned Senior Advocate for the applicant on a recent decision of the Supreme Court in Arnab Manoranjan Goswami (supra) on the question what would constitute an offence of abetment to suicide, punishable under Section 306 IPC. It reads, thus: \"49. Before we evaluate the contents of the FIR, a reference to Section 306 IPC is necessary. Section 306 stipulates that if a person commits suicide \"whoever abets the commission of such suicide\" shall be punished with imprisonment extending up to 10 years [ \"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.\"] . Section 107 is comprised within Chapter V IPC, which is titled \"Of Abetment\". Section 107 provides: (Quoted portion omitted) 50. The first segment of Section 107 defines abetment as the instigation of a person to do a particular thing. The second segment defines it with reference to engaging in a conspiracy with one or more other persons for the doing of a thing, and an act or illegal omission in pursuance of the conspiracy. Under the third segment, abetment is founded on intentionally aiding the doing of a thing either by an act or omission. These provisions have been construed specifically in the context of Section 306 to which a reference is necessary in order to furnish the legal foundation for assessing the contents of the FIR. These provisions have been construed in the earlier judgments of this Court in State of W.B. v. Orilal Jaiswal [State of W.B. v. Orilal Jaiswal, (1994) 1 SCC 73 : 1994 SCC (Cri) 107] , Randhir Singh v. State of Punjab [Randhir Singh v. State of Punjab, (2004) 13 SCC 129 : 2005 SCC (Cri) 56] , Kishori Lal v. State of M.P. [Kishori Lal v. State of M.P., (2007) 10 SCC 797 : (2007) 3 SCC (Cri) 701] (\"Kishori Lal\") and Kishangiri Mangalgiri Goswami v. State of Gujarat [Kishangiri Mangalgiri Goswami v. State of Gujarat, (2009) 4 SCC 52 : (2009) 2 SCC (Cri) 62] . In Amalendu Pal v. State of W.B. [Amalendu Pal v. State of W.B., (2010) 1 SCC 707 : (2010) 1 SCC (Cri) 896] , Mukundakam Sharma, J., speaking for a two-Judge Bench of this Court and having adverted to the earlier decisions, observed : (SCC p. 712, para 12) \"12. ... It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable.\" 51. The Court noted that before a person may be said to have abetted the commission of suicide, they \"must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide\". Instigation, as this Court held in Kishori Lal [Kishori Lal v. State of M.P., (2007) 10 SCC 797 : (2007) 3 SCC (Cri) 701] , \"literally means to provoke, incite, urge on or bring about by persuasion to do anything\". In S.S. Chheena v. Vijay Kumar Mahajan [S.S. Chheena v. Vijay Kumar Mahajan, (2010) 12 SCC 190 : (2011) 2 SCC (Cri) 465] , a two-Judge Bench of this Court, speaking through Dalveer Bhandari, J., observed : (SCC p. 197, para 25) \"25. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide.\" 52.Madan Mohan Singh v. State of Gujarat [Madan Mohan Singh v. State of Gujarat, (2010) 8 SCC 628 : (2010) 3 SCC (Cri) 1048 : (2010) 2 SCC (L&S) 682] was specifically a case which arose in the context of a petition under Section 482 CrPC where the High Court had dismissed [Madan Mohan Singh v. State of Gujarat, 2008 SCC OnLine Guj 568] the petition for quashing an FIR registered for offences under Sections 306 and 294(b) IPC. In that case, the FIR was registered on a complaint of the spouse of the deceased who was working as a driver with the accused. The driver had been rebuked by the employer and was later found to be dead on having committed suicide. A suicide note was relied upon in the FIR, the contents of which indicated that the driver had not been given a fixed vehicle unlike other drivers besides which he had other complaints including the deduction of 15 days' wages from his salary. The suicide note named the appellant-accused. In the decision of a two-Judge Bench of this Court, delivered by V.S. Sirpurkar, J., the test laid down in Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] was applied and the Court held : (Madan Mohan Singh case [Madan Mohan Singh v. State of Gujarat, (2010) 8 SCC 628 : (2010) 3 SCC (Cri) 1048 : (2010) 2 SCC (L&S) 682] , SCC p. 631, paras 10-11) \"10. We are convinced that there is absolutely nothing in this suicide note or the FIR which would even distantly be viewed as an offence much less under Section 306 IPC. We could not find anything in the FIR or in the so-called suicide note which could be suggested as abetment to commit suicide. In such matters there must be an allegation that the accused had instigated the deceased to commit suicide or secondly, had engaged with some other person in a conspiracy and lastly, that the accused had in any way aided any act or illegal omission to bring about the suicide. 11. In spite of our best efforts and microscopic examination of the suicide note and the FIR, all that we find is that the suicide note is a rhetoric document in the nature of a departmental complaint. It also suggests some mental imbalance on the part of the deceased which he himself describes as depression. In the so-called suicide note, it cannot be said that the accused ever intended that the driver under him should commit suicide or should end his life and did anything in that behalf. Even if it is accepted that the accused changed the duty of the driver or that the accused asked him not to take the keys of the car and to keep the keys of the car in the office itself, it does not mean that the accused intended or knew that the driver should commit suicide because of this.\" 53. Dealing with the provisions of Section 306 IPC and the meaning of abetment within the meaning of Section 107, the Court observed : (Madan Mohan Singh case [Madan Mohan Singh v. State of Gujarat, (2010) 8 SCC 628 : (2010) 3 SCC (Cri) 1048 : (2010) 2 SCC (L&S) 682] , SCC pp. 631-32, para 12) \"12. In order to bring out an offence under Section 306 IPC specific abetment as contemplated by Section 107 IPC on the part of the accused with an intention to bring about the suicide of the person concerned as a result of that abetment is required. The intention of the accused to aid or to instigate or to abet the deceased to commit suicide is a must for this particular offence under Section 306 IPC. We are of the clear opinion that there is no question of there being any material for offence under Section 306 IPC either in the FIR or in the so-called suicide note.\" The Court noted that the suicide note expressed a state of anguish of the deceased and \"cannot be depicted as expressing anything intentional on the part of the accused that the deceased might commit suicide\". Reversing the judgment [Madan Mohan Singh v. State of Gujarat, 2008 SCC OnLine Guj 568] of the High Court, the petition under Section 482 was allowed and the FIR was quashed. 54. In a concurring judgment delivered by one of us (Dhananjaya Y. Chandrachud, J.) in the decision of the Constitution Bench in Common Cause [Common Cause v. Union of India, (2018) 5 SCC 1] , the provisions of Section 107 were explained with the following observations : (SCC p. 244, para 458) \"458. For abetting an offence, the person abetting must have intentionally aided the commission of the crime. Abetment requires an instigation to commit or intentionally aiding the commission of a crime. It presupposes a course of conduct or action which (in the context of the present discussion) facilitates another to end life. Hence abetment of suicide is an offence expressly punishable under Sections 305 and 306 IPC.\" 55. More recently in M. Arjunan v. State [M. Arjunan v. State, (2019) 3 SCC 315 : (2019) 2 SCC (Cri) 219] , a two-Judge Bench of this Court, speaking through R. Banumathi, J., elucidated the essential ingredients of the offence under Section 306 IPC in the following observations : (SCC p. 317, para 7) \"7. The essential ingredients of the offence under Section 306 IPC are : (i) the abetment; (ii) the intention of the accused to aid or instigate or abet the deceased to commit suicide. The act of the accused, however, insulting the deceased by using abusive language will not, by itself, constitute the abetment of suicide. There should be evidence capable of suggesting that the accused intended by such act to instigate the deceased to commit suicide. Unless the ingredients of instigation/abetment to commit suicide are satisfied the accused cannot be convicted under Section 306 IPC.\" 56. Similarly, in another recent judgment of this Court in Ude Singh v. State of Haryana [Ude Singh v. State of Haryana, (2019) 17 SCC 301 : (2020) 3 SCC (Cri) 306] , a two-Judge Bench of this Court, speaking through Dinesh Maheshwari, J., expounded on the ingredients of Section 306 IPC, and the factors to be considered in determining whether a case falls within the ken of the aforesaid provision, in the following terms : (SCC pp. 321-22, para 16) \"16. In cases of alleged abetment of suicide, there must be a proof of direct or indirect act(s) of incitement to the commission of suicide. It could hardly be disputed that the question of cause of a suicide, particularly in the context of an offence of abetment of suicide, remains a vexed one, involving multifaceted and complex attributes of human behaviour and responses/reactions. In the case of accusation for abetment of suicide, the court would be looking for cogent and convincing proof of the act(s) of incitement to the commission of suicide. In the case of suicide, mere allegation of harassment of the deceased by another person would not suffice unless there be such action on the part of the accused which compels the person to commit suicide; and such an offending action ought to be proximate to the time of occurrence. Whether a person has abetted in the commission of suicide by another or not, could only be gathered from the facts and circumstances of each case. 16.1. For the purpose of finding out if a person has abetted commission of suicide by another, the consideration would be if the accused is guilty of the act of instigation of the act of suicide. As explained and reiterated by this Court in the decisions abovereferred, instigation means to goad, urge forward, provoke, incite or encourage to do an act. If the persons who committed suicide had been hypersensitive and the action of accused is otherwise not ordinarily expected to induce a similarly circumstanced person to commit suicide, it may not be safe to hold the accused guilty of abetment of suicide. But, on the other hand, if the accused by his acts and by his continuous course of conduct creates a situation which leads the deceased perceiving no other option except to commit suicide, the case may fall within the four-corners of Section 306 IPC. If the accused plays an active role in tarnishing the self-esteem and self-respect of the victim, which eventually draws the victim to commit suicide, the accused may be held guilty of abetment of suicide. The question of mens rea on the part of the accused in such cases would be examined with reference to the actual acts and deeds of the accused and if the acts and deeds are only of such nature where the accused intended nothing more than harassment or snap show of anger, a particular case may fall short of the offence of abetment of suicide. However, if the accused kept on irritating or annoying the deceased by words or deeds until the deceased reacted or was provoked, a particular case may be that of abetment of suicide. Such being the matter of delicate analysis of human behaviour, each case is required to be examined on its own facts, while taking note of all the surrounding factors having bearing on the actions and psyche of the accused and the deceased.\" 57. Similarly, in Rajesh v. State of Haryana [Rajesh v. State of Haryana, (2020) 15 SCC 359] , a two-Judge Bench of this Court, speaking through L. Nageswara Rao, J., held as follows : (SCC para 9) \"9. Conviction under Section 306 IPC is not sustainable on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused, which led or compelled the person to commit suicide. In order to bring a case within the purview of Section 306 IPC, there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC.\" 58. In a recent decision of this Court in Gurcharan Singh v. State of Punjab [Gurcharan Singh v. State of Punjab, (2020) 10 SCC 200 : (2021) 1 SCC (Cri) 417] , a three-Judge Bench of this Court, speaking through Hrishikesh Roy, J., held thus : (SCC pp. 206-07, para 15) \"15. As in all crimes, mens rea has to be established. To prove the offence of abetment, as specified under Section 107 IPC, the state of mind to commit a particular crime must be visible, to determine the culpability. In order to prove mens rea, there has to be something on record to establish or show that the appellant herein had a guilty mind and in furtherance of that state of mind, abetted the suicide of the deceased.\" 59. In Vaijnath Kondiba Khandke v. State of Maharashtra [Vaijnath Kondiba Khandke v. State of Maharashtra, (2018) 7 SCC 781 : (2018) 3 SCC (Cri) 362] , a two-Judge Bench of this Court, speaking through U.U. Lalit, J., dealt with an appeal against the rejection of an application under Section 482 CrPC, for quashing an FIR registered under Sections 306 and 506 read with Section 34 IPC. A person serving in the office of the Deputy Director of Education, Aurangabad had committed suicide on 8-8-2017. His wife made a complaint to the police that her husband was suffering from mental torture as his superiors were getting heavy work done from her husband. This resulted in him having to work from 10 a.m. to 10 p.m. and even at odd hours and on holidays. The specific allegation against the appellant was that he had stopped the deceased's salary for one month and was threatening the deceased that his increment would be stopped. This Court noted that there was no suicide note, and the only material on record was in the form of assertions made by the deceased's wife in her report to the police. The Court went on to hold that the facts on record were inadequate and insufficient to bring home the charge of abetment of suicide under Section 306 IPC. The mere factum of work being assigned by the appellant to the deceased, or the stoppage of salary for a month, was not enough to prove criminal intent or guilty mind. Consequently, proceedings against the appellant were quashed. 60. On the other hand, we must also notice the decision in Praveen Pradhan [Praveen Pradhan v. State of Uttaranchal, (2012) 9 SCC 734 : (2013) 1 SCC (Cri) 146] where a two-Judge Bench of this Court, speaking through B.S. Chauhan, J., dismissed an appeal against the rejection [Praveen Pradhan v. State of Uttaranchal, 2012 SCC OnLine Utt 51] of an application under Section 482 CrPC by the High Court for quashing a criminal proceeding, implicating an offence under Section 306 IPC. The suicide note which was left behind by the deceased showed, as this Court observed, that \"the appellant perpetually humiliated, exploited and demoralised the deceased, who was compelled to indulge in wrongful practices at the workplace, which hurt his self-respect tremendously.\" The Court noted that the appellant always scolded the deceased and tried to always force the deceased to resign. Resultantly, the Court observed : (SCC p. 741, para 19) \"19. Thus, the case is required to be considered in the light of the aforesaid settled legal propositions. In the instant case, alleged harassment had not been a casual feature, rather remained a matter of persistent harassment. It is not a case of a driver; or a man having an illicit relationship with a married woman, knowing that she also had another paramour; and therefore, cannot be compared to the situation of the deceased in the instant case, who was a qualified graduate engineer and still suffered persistent harassment and humiliation and additionally, also had to endure continuous illegal demands made by the appellant, upon nonfulfilment of which, he would be mercilessly harassed by the appellant for a prolonged period of time. He had also been forced to work continuously for long durations in the factory, vis-\u00e0-vis other employees which often even entered to 16-17 hours at a stretch. Such harassment, coupled with the utterance of words to the effect, that, \"had there been any other person in his place, he would have certainly committed suicide\" is what makes the present case distinct from the aforementioned cases. Considering the facts and circumstances of the present case, we do not think it is a case which requires any interference by this Court as regards the impugned judgment and order [Praveen Pradhan v. State of Uttaranchal, 2012 SCC OnLine Utt 51] of the High Court. The appeal is, therefore, dismissed accordingly.\" The contents of the FIR, therefore, indicated that the deceased had been subjected to harassment persistently and continuously and this was coupled by words used by the accused which led to the commission of suicide. 61. In Narayan Malhari Thorat v. Vinayak Deorao Bhagat [Narayan Malhari Thorat v. Vinayak Deorao Bhagat, (2019) 13 SCC 598 : (2019) 4 SCC (Cri) 636] , this Court, speaking through U.U. Lalit, J., reversed the judgment [Vinayak Deorao Bhagat v. State of Maharashtra, 2016 SCC OnLine Bom 15933] of a Division Bench of the High Court which had quashed criminal proceedings in exercise of the jurisdiction under Section 482. This was a case where the FIR was registered pursuant to the information received from the appellant. The FIR stated that the son and daughter-in-law of the appellant were teachers in Zila Parishad School. The respondent used to call the daughter-in-law of the appellant on the phone and used to harass her. Moreover, despite the efforts of the son of the appellant, the respondent did not desist from doing so. This Court noted : (SCC p. 603, para 12) \"12. We now consider the facts of the present case. There are definite allegations that the first respondent would keep on calling the wife of the victim on her mobile and keep harassing her which allegations are supported by the statements of the mother and the wife of the victim recorded during investigation. The record shows that 3-4 days prior to the suicide there was an altercation between the victim and the first respondent. In the light of these facts, coupled with the fact that the suicide note made definite allegation against first respondent, the High Court was not justified in entering into question whether the first respondent had the requisite intention to aid or instigate or abet the commission of suicide. At this juncture when the investigation was yet to be completed and charge-sheet, if any, was yet to be filed, the High Court ought not to have gone into the aspect whether there was requisite mental element or intention on part of the respondent.\" The above observations of the Court clearly indicated that there was a specific allegation in the FIR bearing on the imputation that the respondent had actively facilitated the commission of suicide by continuously harassing the spouse of the victim and in failing to rectify his conduct despite the efforts of the victim.\" 29. The authorities of the Supreme Court referred to in Goswami (supra), it is true, lay down that mere harassment of an individual by another or oppressive behaviour cannot be held to be in itself constitutive of the offence of abetment to commit suicide, but persistent acts of harassment by the accused or a continuous course of conduct, that creates a situation, \"which leads the deceased perceiving no other option except to commit suicide\" to borrow the words of their Lordships in Ude Singh vs. State of Haryana9 has been regarded sufficient to qualify for the requirement envisaged under Section 306 IPC. Likewise, in Ude Singh it has been recognized that where the accused played an active role in tarnishing the self-esteem and self-respect of the victim, that eventually draws him to commit suicide, may be regarded as abetment. Here, as said in some detail in the earlier part of this judgment, the wife allegedly brought matters to the precipitating event by humiliating the husband in public outside their matrimonial home, where she is said to have assaulted him; and again, if this were an isolated action, it might have been discounted for a hypersensitive reaction of a person, where a person similarly circumstanced would not have acted to take his own life. But, as the materials collected during investigation suggest, the fateful event came at the end of a 'build-up', where the wife and in-laws had subjected the deceased to persistent harassment and humiliation. And if the departed soul were to be believed for his word in the scripted suicide note, he was subjected to the humiliation of the wife carrying on with another man and bearing the other's child. In this entire long course of the claimed harassment that the deceased suffered, the in-laws, including the applicant, are alleged to have been active participants. They are said to have connived with the wife and acted alongside her in harassing the deceased. 30. One may legitimately think as to what would possibly be the shade of the mens rea that the victim's wife or his in-laws would harbour to covet death for him. In the opinion of this Court, if a person, particularly one in a relationship of great trust like man and wife, were to betray that trust persistently and indulge in harassment of the other in a manner that the victim-spouse, could reasonably be expected in the circumstances to be driven to take the extreme step, the precise kind of mens rea that would be involved, may not be very relevant. The necessary mens rea of whatever shade and fuelled by whatever motivation, would be inferable from the persistent conduct of the accused. 31. This Court, however, may clarify that whatever is said in this judgment is purely tentative and limited to the purpose of judging the worth of the prayer to quash proceedings. It is and ought not be regarded by the Trial Court as any kind of a comment or evaluation about evidence, which is yet to surface during trial. The truth of the prosecution case has to be established beyond doubt at the trial in accordance with law. However, this Court is of opinion that this is not a case, where the prosecution ought to be scuttled at the threshold in the exercise of powers under Section 482 of the Code. 32. In the result, this Application fails and is dismissed. Order Date :- July the 16th, 2021 Anoop / I. Batabyal",
        "1680750": "PETITIONER: REV. FR. K. C. ALEXANDER Vs. RESPONDENT: STATE OF KERALA DATE OF JUDGMENT16/08/1973 BENCH: REDDY, P. JAGANMOHAN BENCH: REDDY, P. JAGANMOHAN DWIVEDI, S.N. CITATION: 1973 AIR 2498 1974 SCR (1) 399 1973 SCC (2) 737 ACT: Travancore Land Conservancy Act (4 of 1916), s. 9-'Other product raised on land' if includes trees. Trespasser-Right to compensation for trees Planted on another's land. HEADNOTE: There was a dispute regarding the ownership of certain land between a Jenmi family and the State Government, and the Jenmi family filed a suit for declaration of its title. While the dispute was pending, the appellant applied to the Conservator of Forests for registration of the lands in his name under the Travancore Land Conservancy Act, 1916, but the application was rejected. After the suit filed by the Jenmi family was dismissed, the appellant who was in possession of the land, was dispossessed. The appellant, thereafter. filed a suit for the value of improvements affected by him on the land by planting trees and constructing a building. The trial Court decreed the suit for the value of the building but rejected the rest of claim. The High Court dismissed his appeal. In appeal to this Court, it was contended that : (1) there was no order of forfeiture of improvements as required under s. 9 of the Act; (2) the appellant was entitled to compensation under general, law; and (3) the appellant was not served with a notice to quit as required by s. 9 of the Act to enable him to cut and remove the trees. Dismissing the appeal, HELD: (1) Section 9 provides for two notices to be given : (a) one notice to be given to the person in unauthorised occupation of government land to vacate within a reasonable time, and (b) another for forfeiture of any crop or other product raised on the land or to remove any building or other structure within a reasonable time. The words 'raised on the land' qualify both the 'crop' and 'other product', and so, the words 'other product' have to be read in the context of the word 'crop'. So read, trees would not be in- cluded within the meaning of 'other product raised on the land in s. 9 of the Act, and therefore. there is no obligation on the respondent to give notice of forfeiture. [405D-H; 406E] Clark and Another v. Gaskarth, 8 Taunt 431, applied. (2) (a) The trial court and High-Court found on the evidence that the appellant's possession commenced only after his application for registration was rejected, and that. the improvements, if any, were effected by him only thereafter, with full knowledge that the title to the lands was in dispute. Therefore, he could not be said to be a bona fide trespasser. It could not also be contended that nevertheless he was a bona fide trespasser entitled to com- pensation on the basis that he entered upon the land with a bona fide intention of improving the land. Such a contention would give validity to a dangerous principle which will condone all acts of deliberate and wrongful trespass, be-cause, any person desperate enough to trespass on other man's land without any claim of title can always plead that he had a bona fide intention of improving the land whether or not the owner of the land wanted the improvement. The maxim of English law quicquid plantatur solo, solo cedit (whatever is affixed to the soil belongs to the soil) is not applicable to India. but that is not to say that wrongful trespasser can plant trees on someone else's land and claim a right to those trees after he is evicted. [406E-H; 407A] Vallabdas Narainji v. Development Officer, Bandra, A.I.R. 1929 P.C. 163, applied. 400 (b) in any case, the position of a trespasser cannot be better than that of a lawful tenant, who, having lost his possession cannot claim compensation or damages for anything erected on the land or any improvements made therein. [407H] (3) There are no clear allegations in the plaint that the appellant was evicted without notice. No issue had been framed regarding the notice of eviction not being given and no application for framing such an issue was filed in the trial court, or the High Court or this Court. Therefore, the appellant, who was not a mere trespasser but one who had deliberately entered upon the land knowing fully well that he had no right, claim or title to the land, or any manner of right to enter the land, and who had been rightly evicted as a trespasser, should not be permitted to raise such a contention in this Court. [408H-409B] JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 744 of 1967. Appeal by special leave from the judgment and decree dated the 2nd March 1965, of the Kerala High Court at Ernakulam, in A. S. No. 216 of 1961. J. Krishnamoorthy Iyer, Annamma Allexander, S. K. Mehta, K. R. Nagaraja, Qamaruddin and Vinod Dhawan, for the appellant. A. R. Somnath Iyer and M. R. K. Pillai, for the respondent. The Judgment of the Court was delivered by JAGANMOHAN REDDY, J.-This appeal is by special leave against the judgment and decree of the High Court of Kerala which dismissed an appeal against the judgment and decree of the Subordinate Court of Havelikkara. The appellant had filed a suit on October 24, 1942, for the recovery of Rs. 2 lakhs and interest thereon from the date of suit and for costs originally against the State of Travancore now the State of Kerala-the respondent-and three others who however were not made parties in the appeal before the High Court. It has alleged in the plaint that the plaintiff (appellant) was wrongfully dispossessed from 160 acres of land along with the improvements which had been effected by him and as the State had appropriated those improvements without any right or title thereto he claimed the value of those improvements. It was the appellant's case that he had been in occupation of the said 160 acres of Cherikkal land (unregistered dry lands in hilly tracts) about which and the adjoining lands there was a dispute as to whether the same belonged to a jenmi family known as Koodalvalli Illom--hereinafter called 'the Illom--or to the Government of the erstwhile Travancore State. The appellant's father and the appellant had occupied these lands, made improvement thereon by planting coconut trees, arecanut palms, peppervines, rubber-trees, jack trees, other trees, and by constructing bungalow, huts, wells etc. in the bona fide belief that the lands belonged to the Illom. It was stated that according to the practice prevailing in the erstwhile State of Travancore the cultivators could enter into unoccupied waste lands belonging to the janmies with the object of cultivating and improving them, and as they held the lands under them by paying rent, the consent of the Jemies to such occupation was implied. This practice it seems, was also current in respect of lands belonging to the, Government be-fore the Travancore Land Conservancy Act 4 of 1091 (24-7-1916) (hereinafter called 'the Act'). It is the case of the appellant that even, after the Act was passed, unauthorised occupants of land belonging to the Government who had made improvements therein had, under the rules made both under the Act and the Land Assignment Act a pre- ferential claim over others for getting kuthakapattom or assignment of the property in their possession. It may be mentioned that in respect of the 160 acres of land of' the Illom which were occupied by the appellant's father and the appellant, there was a dispute between the Illom and the Travancore State from about 1848. While this dispute was pending it appears the appellant applied to the Conservator of Forests for registration of the lands in his name, but the application was rejected on June 14, 1919 stating that the land applied for cannot be registered (Ext. A). While the application for registration was pending, the dispute between the Illom and the State of Travancore had reached a stage when the Illom had to institute a suit O. S. No. No. 126 of 1096 (January 1918) in the District Court at Quilon for a declaration of its title to those properties. In that suit the appellant, after his application for registration was rejected, sought to get himself impleaded, but that application also was rejected. Thereafter the suit filed by the Illom was dismissed on 28-6-1109 (February 10, 1934). An appeal against it was dismissed on September 27, 1943. It may here be mentioned that while the suit of the Illom i.e. O.S. No. 126 of 1096 M.E. was pending in the District Court, Quilon, the Government of Travancore had initiated proceedings in ejectment against the appellant by L. C. Case No. 112 of 1100; (1925 A.D.). As the suit of the illom had been finally disposed of and the title of' the Illom to the lands was not established, the appellant apprehending that he might be ejected in the above L.C. Case filed a suit No. O.S. 156 of 1103 M.E. (1927-28 A.D.) in the District Court at Quilon against the respondent to establish his right and title to the said 160 acres and in the adjoining Cherikkal lands in his possession. In that suit an injunction was prayed for in respect of 100 acres of the property involved in the suit, but the prayer was rejected. Against that order a Civil Miscellaneous Appeal No. 206 of 1110 M.E. (1934-35 A.D.) was filed in the High Court of Travancore. The High Court issued a commission for inspecting the properties and the Commissioner in his report part 13 of Ext. CC set out the improvements made by the appellant on the lands which comprised of a bungalow in which the appellant was residing, a number of small houses. a rubbers state, and a large number of other valuable trees like jack trees, mango trees, coconut trees etc. It appears that as there was no injunction restraining his dispossession in L.C. Case No. 112 of 11,00 M.E. an order was passed for dispossessing the appellant on July 24. 1939, Ext. VI. The appellant, pursuant to this order, was dispossessed from the lands and possession of these lands was given to the second defendant Nair Service Society Ltd. in August 1939. Thereafter the suit out of which this appeal arises was filed against the Government on October 24, 1942. The respondent-State contended that the appellant encroached on the suit lands, that proceedings were taken against him in L.C. Case No. 112 of 11 00 M. E. and he was evicted in due course, that the trespass by the appellant was of recent origin, that the allegation that the entry was made in the belief that the land belonged to the Illom was false, that the Revenue and Forest Departments did not harass the appellant but they took steps for dispossessing him only in accordance with the law, that the Commissioner's report was not correct in that all the improvements noted by the Commissioner were not made by the appellant but by other independent squatters, that after due notice an order of forfeiture had been passed in L.C. Case No. 112 of 1100 M.E. and the appellant was therefore not entitled to claim any value for improvements as it was his duty to remove any building before he was evicted. The respondent also averred that it had not taken possession of any crops or movables as stated in the ,plaint and that the movables found in the building were attached for the realisation of arrears of fine etc. There were other allegations also but it is unnecessary for purposes of this appeal to refer to them. Several issues were framed, but it is not necessary to refer to :them except to say that the suit was decreed only for Rs. 3000/being the value of the appellant's bungalow taken possession of by the respondent. The rest of the claim was dismissed. it was observed by the Trial Court that though there is no specific evidence to show when exactly the possession of the appellant had commenced, the evidence however indicated that it must have started close to the year I 100 M. E. and that in any case the claim of the appellant that possession was from 1030 M.E. was not true inasmuch as from the year 1067 M.E. when the Act was passed possession without permission was penal and it could not be imagined that the appellant was left in peace for all these long years. The Trial Court also held that all through these long years there had been a dispute as to the title between the Illom and the State and after the suit of the Illom was dismissed and the Illom's title was not sustained, the allegation that the improvements were effected cannot be stated to be bona fide. It pointed out that the plaintiff (appellant) had applied to get himself impleaded on 0.S. No. 126 of _ 109,6 M. E. but his application was rejected, and after that suit was dismissed the appellant again applied for registry, but that was also rejected. All this, according to the Trial Court, would show that the appellant was aware that he was remaining on Government lands without title. It was further held that the greater part of the improvements were effected by the appellant after the proceedings in the L.C. Case No. 112 of 1100 M.E. were stayed, as such it cannot be said that these improvements could have been effected in good faith. With respect to the allegation that an order of forfeiture was not served on the appellant under s. 9 of the .Act, the Court observed that though the State had in its written statement contended that such an order had been passed, no order was produced in evidence and consequently it was conceded by the Government Pleader that no such order was passed. In the circumstances the question that had to be considered was whether without an order of forfeiture being passed, the respondent could forfeit the improve- ments. On this issue it was held that no notice, of forfeiture of trees. need be given under s. 9 of the Act and, therefore no compensation or damages were payable in respect thereof. The High Court accepted the finding of the Trial Court on issue. It observed that the evidence in the case indicated that the possession of the father of the appellant must have commenced close to the year 1100 M.E. and consequently the claim of the appellant that lie was in possession from 1030 M.E. cannot be true. It then said : \"If the possession commenced only about the year 1100, it certainly cannot be under any bona fide claim of title for even on. 12-6-1094, the petitioner knew that the land was Government land and had then applied for assignment of the land.\" Accordingly the High Court found that at no time the occupation of the land by the appellant was under a bona fide claim of title. The contention of the appellant that the trees which are the subject-matter of the appeal should have been forfeited by an order passed under s. 9 of the Act and in the absence of such. an order his right to the value of those trees had to be adjudged and paid. to him was also negatived, as the Court held that the words \"any crop or other product raised on the land\" occuring in s. 9 of the Act would not include trees. In its view these words take in what is familiarly known in law as 'emblements' which according to Black's. Law Dictionary mean \"Such products of the soil as are annually planted, served and saved by manual labour, as cereals, vegetables, Grass maturing for harvest or harvested, etc., but not grass on lands used for pasturage.\" In this view it held that compensation for trees which are to be dealt with under the general law cannot be decreed in favour of a mere trespasser who had no rights therein. It was also of the view that the claim for compensation for trees which has to be dealt with under the general law under which a mere trespasser would have no rights to the payment of compensation nor could be. appellant be allowed to remove them after his dispossession. Another reason for disallowing the compensation for trees given by the High Court was that the position of a trespasser-whether he be a mere trespasser or a trespasser under a bona fide claim of title--cannot be better than that of a tenant, and that if this is correct, then the appeal has to be dismissed on the short ground that there is no principle of law or equity which requires the payment of compensation in respect of trees, the ownership of which was all along, or at any rate from the dale of the trespasser's dispossession, vested in the State. The learned advocate for the appellant has reiterated the submissions made before the Trial Court and the High Court and contends that there is no order forfeiting the improvements as required under s. 9 of the Act, and if s. 9 does not apply and there is no right of forfeiture as contemplated under s. 9, then the appellant is entitled to compensation under the general law. Apart from this contention, towards the end of his argument, the learned advocate for the appellant sought to make out a fresh case, namely, that as the appellant was not served with a notice to quit as required under s. 9 of the Act but was forcibly evicted without giving him an opportunity of cutting and taking away the trees etc. from the lands from which he was evicted, he would be entitled to claim compensation for the improvements made by him. It may be stated that the finding that the possession of the appellant ,commenced after his application for registration was rejected in 1919, and the improvements, if any must have been effected only thereafter with full knowledge that the title to the lands was in dispute between the Illom and the Government, is unassailable. We have earlier adverted to Ext. A and also to the fact that after the application for registration was ,rejected the appellant tried to get himself impleaded in the suit filed by the Illom against the State which application was also rejected and so the claim that his possession was bona fide or that he was a bona fide .trespasser has no validity. This finding is fortified by s. 5 of the Act which provides that from and after the commencement of the Act it shall not be lawful for any person to occupy land which is the property of the Government whether Poramboke or not without the permission from the Government or such officer of the Government as may be ,empowered in that behalf. In view of this specific provision the contravention of which is punishable under s. 6 thereof, his conduct in applying for registration and for getting himself impleaded in the suit of the Illom against the Government, would show that he knew that the land was Government land or land in which the Government had a claim. In these circumstances he cannot be said to be a bona fide trespasser particularly after he had applied to the Government for obtaining .a registration in his name on the basis that it was Government land. It is however urged before us that the High Court was in error in thinking that the appellant did not occupy the lands as a trespasser with a bona fide claim of title because it was his case that he trespassed upon the land with a bona fide intention to improve the land, and as such he can still be considered as a bona fide trespasser entitled to improvements under the general law. Before dealing with this aspect,, we will first consider the question whether trees are included within the meaning of s. 9, so as to entitle the appellant to a notice of forfeiture thereunder. Section 9 of the Act is in the following terms : \"Any person unauthorisedly occupying any land for which he is liable to pay a fine under section 6 and an assessment or prohibitory assessment under section 7, may be summarily evicted by the Division Peishkar, and any crop or other product raised on the land shall be liable to forfeiture and any building or other structure erected or anything deposited thereon shall also, if not removed by him after such written notice as the Division Peishkar may deem reasonable, be liable to forfeiture. 'Forfeiture under this section shall be disposed of as the Division Peishkar may direct. An eviction under this section shall be made in the following manner, namely: By serving a notice on a person reported to be in occupation or his agent, requir ing him, within such time as the Division Peishkar may deem reasonable after receipt of the said notice to vacate the land, and if such notice is not obeyed, by removing or deputing a subordinate to remove any person who may refuse to vacate the same, and, if the officer removing any such person shall be resisted or obstructed by any person, the Division Peishkar shall hold a summary enquiry into the, facts of the case and, if satisfied that the resistance or obstruction still continues, may issue a warrant for the arrest of the said person, and on his appearance may send him with a warrant in the form of the Schedule for imprisonment in the Civil Jail of the District for such period not exceeding 30 days as may be necessary to prevent the continuance of such obstruction or resistance Provided that no person so committed or imprisoned under this section shall be liable to be prosecuted under sections 176, 179 and 181 of the Travancore Penal Code in respect of the same facts.\" This section provides for two notices to be given one notice is to be given to the person who is in unauthorised occupation of Government land to vacate the land within a reasonable time and the other notice is to forfeit any crop or other product raised on the land or to remove any building or other structure erected or anything deposited therein within a reasonable time as may be stated in the notice. It was conceded before the Trial Court and no attempt was made to establish anything to the contrary before the High Court that no notice of forfeiture as required under s. 9 was given to the appellant. In these circumstances, the question that would arise for determination is whether the trees come within the description of \"other product raised on the land\". It is stated before us that at the time when the appellant was evicted the Transfer of Property Act was not in force. But this is not relevant as what has to be considered is whether trees can be said to be \"other product raised on the land\". The words \"raised on the land\" qualify both the 'crop' and 'other product', so the words \"other product\" have to be read in the context of the word 'crop' which precedes it. It was pointed out by the learned advocate that the High Court was in error in equating other product raised on the land with emblements because the definition of crop in Black's Law Dictionary does include emblements, as such the words 'other product' cannot also be treated as emblements and must therefore be given a different meaning which according to him would include trees. No doubt one of the meanings given in the Black's Law Dictionary does say that in a more restricted sense the word is synonymous with 'fructus industrials'. But the meaning to be ascribed to that word is that it connotes in its larger signification, products of the soil that are grown and raised yearly and are gathered during a single season. In this sense the term includes \"fructus industrials\" and having regard to the etymology of the word it has been held to mean only products after they have been severed from the soil. The same dictionary gives the meaning of the word ,,product\" as follows : \"Product. With reference to property, proceeds.: yield; income; receipts; return . ............ The \"products\" of a farm may include, the increase of cattle on the premises................\" Even under this definition \"product\" cannot mean anything which is attached to the land like trees. It may, however, include the fruit of the trees. This view of ours is supported by the case of Clark and Another v. Gaskarth(1). That was a case of a trespass for breaking and entering the closes of the plaintiffs and tearing up, digging up, cutting down, and carrying away the plaintiff's trees, plants, roots and seeds, growing on the closes. Notice of this trespass was given to the defendant. At the time of the distress the sum of pound 281.6 s. was due from the plaintiffs to the defendant for rent in respect of the nursery ground. The question before the Court was whether the plaintiffs were entitled to recover against the defendant damages caused to them by cutting down and carrying away the plaintiffs' trees. It was Contended-that the defendant's action was justified under the statute II G. 2, C. 19, s. 8, which after enumerating certain crops, empowered the landlord to seize as a distress any \"other product whatsoever which shall be growing on any part of the estate demised\" and, therefore, the trees and shrubs in question came within that description. The Court rejected the contention that the trees and shrubs could be distrained and held that the word product' in the eighth section of the statute did not extend to trees and shrubs growing in a nurseryman's ground, but that it was confined to products of a similar nature. with those specified in that section, to all of which the process of becoming ripe, and of being cut, gathered, made, and laid up when ripe, was incidental. In our view, therefore, trees are not included within the meaning of 'other products raised on the, land' in s. 9 of the Act and there is, therefore, no obligation on the Government to give notice of forfeiture under that section. It is then contended that even if trees are not included in s. 9 and no notice of forfeiture is necessary, under the general law even a trespasser on the land, whether bona fide or not, is entitled to compensation or damages for the improvements made by him on the land We have already agreed with the Trial Court and the High Court that the appellant was not a bona fide trespasser. But the learned advocate for the appellant submits that it was not his case nor is it under the general law necessary for a person who trespassed on the land to trespass with a claim of bona fide title. According to his submission a person is nevertheless a bona fide trespasser if he enters upon the land with a bona fide intention of improving the land. No authority has been cited for this novel proposition, and if accepted, it would give validity to a dangerous principle which will condone all acts of deliberate and wrongful trespass because any person desparate enough to trespass on other mans' land without any claim of title can always plead that he had a bona fide intention of improving the land whether the owner of that land wants that improvement or not. This vicarious and altruistic exhibition of good intention may even cause damage to the land of an owner who may not want improvements of such a kind as tree plantation. It is true that the maxim of the English law \"quicquid plantatur solo, solo cedit\" i.e. whatever is affixed to the soil belongs to the soil, is. not applicable in (1) 8 Taunt 431, India but that is not to say that a wrongful trespasser can plant trees on some one else's land and claim a right to those trees after he is evicted. The case of Vallabdas Narainji v. Development Officer, Bandra(1), which was cited by the learned counsel for the appellant does not assist him, for the Privy Council did not think it necessary to give a decision on what it termed to be a far-reaching contention. That was a case in which the Government had taken possession of the lands and had erected certain building on the land before a decision under s. 6 of the Land Acquisition Act was made as to the appellant's property arid it was contended that the appellant should be allowed the value of the land in the state in which it then was i.e. with buildings on it. It appears that the Government had resolved to acquire the land in question and other lands and by arrangement with certain of the sutidars it took possession of such land, including a portion which was in the occupation of the appellant. Upon such land, including a portion in the possession of the appellant they proceeded to erect buildings without the necessary notification under s. 6 of the Land Acquisition Act which was not served until November 4, 1920. On these findings it was observed that the Government were in a position, by law at any rate, to regularize their possession by such a notification a fact which becomes material when it has to be considered what the nature of the trespass is. Both the Assistant Judge and the High Court negatived the claim of the appellant. Before the Privy Council it was contended on behalf of the appellant that in the various cases relied upon, there was at least some genuine claim or belief in the party erecting the buildings that he had a title to do so, even though he was eventually held to be a trespasser; and it was urged that no such claim or belief existed in that case, in which it was said the Government without any pretence of a right, tortuously invaded the appellant's property and proceeded to deal with it as their own. it is in this context that the respondent's contention that even if the appellants were considered to be mere trespassers they would still be entitled to the value of the improvements and contest the claim of the appellant was described, as already stated, as a far-reaching contention. The Board, however, agreed with what was apparently the view of both Courts in India that under the circumstances of this case, as already set forth, by the law of India, which they appear to have correctly interpreted, the Government officials were in possession \"not as mere trespassers\" but under such a colour of title that the buildings erected by them on the land ought not to be included in the valuation as having become the property of the landowner. This case does not support the contention that a mere trespasser who has deliberately and wrongfully contrary to the provisions of s. 5 of the Act, entered 'upon another's land which makes such an act even punishable under s. 6 thereof, is entitled to compensation for the trees planted by him on the land. In any case, as the High Court rightly observed, the position of a trespasser cannot be better than that of a lawful tenant who having lost his possession cannot claim compensation or damages for anything erected on the land or any improvements made therein. The appellant's claim after he was evicted cannot, on the same parity of reasoning, be held to be valid. Once the appellant's counsel was confronted I with this (1) A.I.R. 1929 P.C. 163. proposition, he tried to raise an entirely new point, namely, that no notice of eviction was given to the appellant, and if such a notice had been given to him under s. 9, he would have cut the trees and taken them away, within the time allowed for him to vacate the lands. In support of this contention he has referred us to the leadings contained in paragraph-3 of the plaint in which it is stated : \"The improvements effected by the plaintiff have a value of Rs. 2 lakhs as per the accounts shown below. In his helplessness the plaintiff had even applied to Government to give him the land in which he had effected improvements, on kuthakapattom. But out of the said land 160 acres were taken out of my possession and given to the 2nd defendant even without giving me the opportunity to remove the movable improvements, such as cultivation, cattle, machines, utensils, houses, stocked crops, ripe crops etc., belonging to me.\" These averments in the above paragraph do not clearly allege that he was evicted without notice, nor has any allegation been made that he was forcibly evicted from the lands with the help of the police etc. as it has now been contended before us. On the other hand what the plaintiff (appellant) stated shows that no opportunity was given to him to remove the movable improvements, such as cultivation, cattle, machines, utensils, houses, stocked crops, ripe crops etc. which belonged to him. There is nothing stated by him that he had no opportunity to cut trees and take them away. Even in paragraph-4 of the plaint where he complains that no notice of forfeiture was given to him, he mentions only the items referred to in paragraph-3. It is in this connection, he says, that no legal procedure had been followed by Government for taking them into possession, which only implies that it is in respect of the items mentioned in paragraph-3. It is again stated in, paragraph-4 that \"It was irregular on the part of Government to take possession of the above items\". The respondent did not understand the averments in the plaint as alleging that no notice to quit was given to him is evident from the written statement of the respondent in paragraph, where it is stated thus : \"This defendant submits that after due notice an order of forfeiture has been passed in Poramboke Case 112 of 11 00 and the plaintiff is therefore not entitled to claim any value of improvements or value of any building.\" The issues that had been famed by the Trial Court also do not refer to this aspect. No doubt in the evidence of the plaintiff P.W. 1 states that he was evicted from the lands without giving him an opportunity to remove the improvements, and in cross-examination he was asked whether he was not given any notice prior to the dispossession and he said that certainly no notice was, received. P.W. 4 the Manager was asked in cross-examination whether he had been given any prior- information or notice about eviction and this witness also said that there was no prior information or notice. While these passages might show that no notice of eviction was given, even at that stage there was no application for an issue being framed, nor has such an application been made in the appeal before the High Court, nor even before this Court. en it has been held that the appellant was not a mere trespasser and had deliberately entered upon the lands knowing fully well that he had no right, claim or title to the lands or had in any manner a right to enter the land and has been rightly evicted as a trespasser, he cannot now be permitted to raise this contention before us. In the view we have taken, the appeal has no substance and is accordingly dismissed with no order as to costs, but the court fee will be recovered from the appellant. V.P.S. Appeal dismissed.",
        "10104667": "1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7157 OF 2008 M/s. L. R. Brothers Indo Flora Ltd. \u2026 Appellant Versus Commissioner of Central Excise \u2026Respondent JUDGMENT A. M. Khanwilkar, J. 1. This appeal takes exception to the Final Order No. C/203/08 dated 17.7.2008 passed by the Customs, Excise & Service Tax Appellate Tribunal1 in Customs Appeal No. 9 of 2008, whereby the customs duty levied upon the appellant on the sale of cut flowers within the Domestic Tariff Area 2 had been confirmed by the Tribunal. 2. The factual matrix leading to the present appeal is that the appellant \u00ad M/s. L.R. Brothers Indo Flora Ltd. is a 100% Export Signature Not Verified Digitally signed by DEEPAK SINGH Date: 2020.09.01 17:01:04 IST Reason: 1 For short, \u201cCESTAT\u201d 2 For short, \u201cDTA\u201d Oriented Unit3 and engaged in production of cut flowers and flower buds of all kinds, suitable for bouquets and for ornamental purposes. The 100% EOU is required to export all articles produced by it. As a consequence whereof, it is exempted from payment of customs duty on the imported inputs used during production of the exported articles, vide Notification No. 126/94\u00ad Cus dated 3.6.19944. Under the said notification, exemption on levy of customs duty had been extended even to the inputs used in production of articles sold in domestic market, in accordance with the Export\u00adImport (EXIM) Policy and subject to other conditions specified by the Development Commissioner. To wit, upon payment of excise duty in case of excisable goods; and in case of non\u00adexcisable goods, upon payment of customs duty on the inputs used for production, manufacturing or packaging of such articles at a rate equivalent to the rate of customs duty that would have been leviable on such articles, if such articles were imported. The said notification was amended by Notification No. 56/01\u00adCus dated 18.5.20015, by which the customs duty in case of non\u00adexcisable goods became leviable on inputs used for 3 For short, \u201cEOU\u201d 4 For short, \u201cthe exemption notification\u201d 5 For short, \u201cthe amendment notification\u201d production, manufacturing or packaging, as if there was no exemption notification in place. The effect of this amendment was that the customs duty on inputs which was charged at the rate equivalent to the duty leviable on final articles under the exemption notification, was now chargeable at the rate specified for the inputs. 3. The EXIM Policy 1997\u00ad2002 provided that a 100% EOU in floriculture sector was permitted to sell 50% of its produce in DTA, subject to achieving positive net foreign exchange earning of 20% and upon approval of the Development Commissioner. The appellant, without obtaining the approval of the Development Commissioner and without maintaining the requisite net foreign exchange earning, made DTA sales to the extent of Rs.38,40,537/\u00ad during 1998\u00ad99 to 2000\u00ad01 (upto December 2000), in contravention of the provisions of EXIM Policy. Notably, the appellant subsequently sought ex\u00adpost facto approval from the Development Commissioner vide letter dated 6.2.2001. 4. Meanwhile, the Additional Commissioner, Central Excise, Meerut\u00adI issued a show cause notice dated 16.3.2001 to the appellant to show cause as to why customs duty, interest and penalty should not be imposed for the DTA sales made by the appellant in contravention of the EXIM Policy, that too after having availed the exemptions under the exemption notification on the import of green house equipment, raw materials like Live Rose Plants and consumables like planting materials and fertilizers. After according opportunity of being heard, the Additional Commissioner adjudged the show cause notice and held that the DTA sales were made without permission of the Development Commissioner and in contravention of the EXIM Policy and therefore, customs duty is leviable upon the appellant for the said sales. It was further held that the appellant had wilfully suppressed facts and thus Section 28 of the Customs Act, 19626 was invoked in the present case. The relevant extract of the Order\u00adin\u00adOriginal dated 18.10.2001 passed by the Additional Commissioner, Central Excise, Meerut \u2013 I on the aforesaid findings is reproduced hereunder: \u201c3.1 I find that the party had imported the capital goods and also imported raw materials like \u201cLive Rose Plants\u201d and consumable like \u201cFertilizer and Planting Materials\u201d during 1996\u00ad97 to 2000\u00ad2001 and further that they made clearances towards Domestic Tariff Area sales without obtaining permission from the Competent Authority in the matter. On scrutiny of the records, it was observed that before making any 6 For short, \u201cthe 1962 Act\u201d DTA sales it was required that 20% positive Net Foreign Exchange Earning (NFEP) should have been achieved i.e. annual value of export should have been 20% more than Rs.2,42,37,400/= (+) annual value of imports of raw materials and consumables during the respective year and the said noticee had exported the flowers worth Rs.91,92,000/= only which are well below prorata annual value of Import of capital goods. 3.2 I also find that as per condition of the approval letter No. 119(1994)EOB/34/94 dated 04.5.94, issued by Govt. of India, Ministry of Industries, Department of Industrial Development, Secretarial for Industrial approval, MUCC Section, New Delhi, the bonding period of M/s. L.R. Brothers Indo Flora Ltd., was fixed for 10 years during which they were required to achieve 62% value addition over and above the imports and other factors contributing towards the foreign exchange gone out of the country. As per the specific condition of the approval letter, the party was required to export all of its production out of India subject to permissible limit of Domestic Tariff Area Sales (herein after referred to as DTA Sales) and that, too, after specific permission from Development Commissioner of the EPZ concerned, on payment of applicable Customs & Central Excise duties. The Export Import Policy 1997\u00ad 2002 specifies the condition of DTA sales by an EOU. In this regard, I reproduce below the contents of the relevant paras of Export Import Policy 1997\u00ad2002\u2026.. 3.3 Therefore, in view of the above legal provisions of the Export Import Policy 1997\u00ad2002, it is amply clear that for earning DTA sales entitlement the EOU should fulfil the export obligations as prescribed in the letter of approval and also should have a positive NFEP which is 20% in case of floriculture units. 3.4 ..... As per Note 3 to paragraph 9.5 of the Export Import Policy, as discussed above, prorata annual value of imported capital goods (i.e. 1/5th of the total import of Capital Goods worth Rs.12,11,87,000/\u00ad comes to Rs.2,42,37,400/\u00ad. Therefore, before making any DTA sales it was required that 20% positive NFEP should have been achieved i.e. the annual value of export should have been 20% more than Rs.2,42,37,400/\u00ad + annual value of imports of raw materials and consumable during the respective year, whereas in all the four years since operation, the unit had exported the flowers worth Rs.91.92 lakhs only which are well below the prorata annual value of import of capital goods. Therefore, in view of the specific provisions of the Export Import Policy 1997\u00ad2002, the unit was not entitled to sell any goods in DTA. 3.5 Moreover, the guidelines for sale of goods in the DTA by EOU are prescribed in Appendix 42 of Handbook of Procedure, Export Import Policy 1997\u00ad2002. Para (f) of the said Appendix 42 reads as: \u201cAn application for DTA sale shall be accompanied by a statement indicating the ex\u00adfactory value of the goods produced (excluding rejects) and ex\u00adfactory value of goods actually exported. The statement shall be certified by an independent cost/chartered/cost and works accountant and endorsed by the Customs/Central Excise Officer having jurisdiction over the unit. The Development commissioner of the EPZ concerned will determine the extent of DTA sale admissible in value terms and issue goods removal authorization in terms of value and quantity for sale in DTA.\u201d However in the present case as per records, the party failed to furnish the same application as well as permission, if any to this department and did not follow the procedure as laid down in the Hand Book of Procedure, Export Import Policy 1997\u00ad2002. 3.6 Apart from the above, the floriculture EOU may Import Capital Goods and Raw Materials, without payment of Customs duties in terms of Custom Notification No. 126/94 dated 3.6.94 and accordingly M/s. L.R. Brother Indo, Flora Ltd., have imported green house equipment, raw materials like Liver Rose Plants and Consumable like planting materials and Fertilizers under the said notification. Para 3 of the said Notification reads as under :\u00ad .... 3.7 Therefore, from the above provision, it is clear that the units working under the said Notification may sell their produced goods in DTA on payment of excise duty as leviable under Section 3 of Central Excise Act, 1944 if the goods are excisable and on payment of full Customs duties leviable on such goods as if imported as such if the goods are non excisable. Cut Flowers or Flower Buds are not covered under Central Excise Tariff Act, 1985 as Chapter 6 which covers such types of Flowers in Customs Tariff left blank in Central Excise Tariff Act and, therefore, such types of Flowers will be treated as non excisable in view of Section 2 (d) of the Central Excise Act, 1944. Therefore, full Customs duties will be leviable on such Flowers, if sold in DTA treating such flowers as imported into India, in terms of Notification No. 126/94\u00adCus dated 03.6.94. Further, M/s. L.R. Brothers Indo Flora Ltd., had made DTA sales during the year 1998\u00ad99 to 2000\u00ad01 (upto December 2000) in contravention to the aforesaid provisions. Further, they failed to show any permission from Development Commissioner for sale of their goods in DTA. It appears that the Development Commissioner has granted no such permission to them, as they have not earned the DTA sale entitlement due to very low exports in comparison to high quantum of imports. ...... 3.8 I have also come to conclusion that M/s. L.R. Brothers Indo Flora Ltd., Behat Road, Saharanpur have contravened the provisions of Import & Export Policy 1997\u00ad2002 and have not fulfilled the conditions of Notification No. 126/94 dated 3.6.94. Hence the party is liable to pay the full customs duty on cut flowers sold in DTA, treating the flowers imported as such into India. Further, the said M/s. L.R. Brothers Indo Flora Ltd., have been indulged in wilful suppression of facts, as aforesaid, and sold the said goods viz., cut flowers falling under Ch. S.H. No. 0603.10 of the Customs Tariff, in D.T.A. in contravention of the provisions of Import Export Policy 1997\u00ad2002, without payment of Customs duty, hence extended period of five years as provided under proviso to section 28 of the Customs Act 1962 is invokable in the instant case. Therefore, all obligations were cast on such a large undertaking to discharge the correct duty liability i.e. Customs duty amounting to Rs.9,98,177.00. Therefore, demand of Customs duty stands recoverable from them. They are also liable to pay interest @ 24% from the 1 st day of the month succeeding the month in which the duty ought to have been paid under Section 28AB of the Customs Act, 1962. ....\u201d (emphasis supplied) 5. The Additional Commissioner, by way of aforesaid order, confirmed the demand of customs duty of Rs.9,98,177/\u00ad under Section 28, interest at the rate of 24% under Section 28AB and penalty of Rs.9,98,177/\u00ad under Section 114A of the 1962 Act. The appellant unsuccessfully carried the matter in appeal before the Commissioner (Appeals), Customs & Central Excise, Meerut\u00ad I, wherein the Order\u00adin\u00adOriginal came to be confirmed by the Order\u00adin\u00adAppeal dated 29.7.2005 by holding thus: \u201c5. ....... In the light of the above facts, I find myself in agreement with the findings of the adjudicating authority that the appellants have not earned the DTA sale entitlement due to very low exports in comparison to high quantum of imports. Thus, the alleged contravention of provisions of Import & Export Policy 1997\u00ad2002 and non\u00adfulfilling of the conditions of the Notification 126/94\u00adCus ibid is fully established against them. Therefore, the demand of Customs duty along with interest in this case as per the impugned order is justified. As regards the imposition of penalty on the appellants, I find that the charges of contravention of provisions of Export & Import Policy 1997\u00ad2002 & Notification No. 126/94 Cus dt. 03.06.94 stand proved against the appellants. They were aware that they were not entitled to make DTA sales of the subjected goods, even then they made DTA sales of the same to evade payment of duty. Hon\u2019ble Supreme Court in the case of Gujarat Travancore Agency vs. Commissioner of Income Tax 1989 (42) ELT 350 (SC), has held that the penalty under Section 271(1)(a) of the Income Tax Act is a civil obligation and unless there is something in language of the statute indicating the need to establish element of mensrea, it is generally sufficient to prove that a default in complying with the statute has occurred. In view of the ratio of the aforesaid judgment of Apex Court, the penalty has been rightly imposed upon the appellant. In view of the above, I find no infirmity in the order passed by the adjudicating authority and therefore disallow the appeal.\u201d 6. The matter was further carried in appeal before CESTAT whereat the impugned order was passed confirming the order of the authorities below whilst also holding that amendment notification is prospective and cannot be applied to the present case. The relevant extract of the impugned order is reproduced below: \u201c5. We have carefully considered the submissions made from both the sides. Irrespective of whether the DTA clearances of cut\u00adflowers were, in contravention of the EXIM Policy or otherwise, the cut\u00adflowers being non\u00ad excisable goods, their DTA clearance would attract, in terms of the provisions of para 3(a) of the exemption Notification No. 123/94\u00adCUS., only the Custom Duty involved on the inputs used in the production of the cut\u00ad flowers. The point of dispute is as to whether the Custom Duty payable on the inputs used in the production of the cut\u00adflowers which had been cleared to DTA, is to be taken as an amount equal to Custom Duty chargeable on the import of cut\u00adflowers, as such, or it should be the actual Custom Duty on the inputs used in the production of cut\u00adflowers cleared to DTA. 5.1 xxx xxx xxx 5.2 From reading of para 3(a) of the Notification No. 126/94\u00adcus as it existed during the period of dispute i.e. during the period prior to 18.5.01 \u2013 and as it existed during period w.e.f. 18\u00ad5\u00ad01, it is clear that during the period of dispute, the notification contained a machinery provisions for determining, the Custom Duty chargeable on the inputs used in the production of non\u00adexcisable goods cleared to DTA and as per this machinery provision, the duty was to be in an amount equal to the Custom Duty chargeable on the finished goods, as if imported, as such. However, after the amendment of this Notification w.e.f. 18.5.01, the duty on the inputs used in the production of non\u00adexcisable goods cleared to the DTA was to be calculated on actual basis. The amendment to the Notification No. 126/94\u00adCUS. w.e.f. 18.5.01 by the Notification No. 56/01 can have only prospective effect and it cannot be given retrospective effect. In view of this, during the period of dispute, customs duty on the inputs used in the production of cut\u00adflowers cleared to DTA has to be calculated as per the provisions of the Notification, as it existed during that period. 6. The Tribunal's judgment in the case of Vikram Ispat (supra) is not applicable to the fact of this case, as in the present case what is being charged in respect of DTA clearances of the cut\u00adflowers is not the customs duty on the cut\u00adflowers, but the custom duty on the inputs used in the production of those cut\u00adflowers, which as per the provisions of Notification, as it existed at that time, was equal to the Customs Duty chargeable on the import of cut\u00adflowers, as such. In the Tribunal's judgment in case of Zygo Flowers Ltd. (supra) and Cosco Blossoms Pvt. Ltd. (supra), the implications of the wording of para 3(a) of the exemption notification during the period of dispute \u00ad \u201cor where such articles [including rejects, waste and scrap material] are not excisable, on payment of Custom Duty on the said goods used for the purpose of production, manufacture or packaging of such articles in an amount equal to the Custom Duty leviable on such articles, as if imported, as such\u201d had not been considered. If the Appellant's view accepted, the words \u201cin an amount equal to the Custom Duty leviable on such articles, as if imported, as such\u201d would become redundant. It is well settled principle of interpretation of statute that a statute has to be construed without adding any words to it or subtracting any words from it and an interpretation which makes a part of the statute redundant has to be avoided. 7. In view of the above discussion, we hold that the custom duty has been correctly charged in respect of DTA clearances of the cut\u00adflowers and as such we find no infirmity in the impugned order. The appeal is accordingly dismissed.\u201d Thus, the levy of customs duty stood confirmed. 7. Being aggrieved, the appellant has approached this Court. The thrust of the argument of the appellant is that according to Paragraph 3 of the exemption notification, sales made in DTA would attract excise duty and since the cut flowers sold by the appellant are non\u00adexcisable goods, no excise duty can be levied upon it. Further, according to the notification, in case of non\u00ad excisable goods, the customs duty is leviable on the imported inputs. In the present case, since the cut flowers are home grown, customs duty cannot be levied upon them and therefore, the demand of customs duty cannot be sustained. Reliance is placed on the decisions of CESTAT in Cosco Blossoms Pvt. Ltd vs. Commissioner of Customs, Delhi7 and larger bench of Central Excise and Gold (Control) Appellate Tribunal 8 in Vikram Ispat vs. Commissioner of Central Excise, Mumbai\u00adIII9. It is then urged that the exemption notification predicates levy of customs duty on non\u00adexcisable goods sold in DTA sales to the extent of the value of inputs and not to the extent of the value of final product. It is further urged that the amendment notification is merely clarificatory and hence it would apply retrospectively. To buttress this submission, the appellant had placed reliance on Circular No. 31/2001\u00adCus dated 24.5.2001 issued by Central Board of Excise and Customs, New Delhi 10, which noted that the charge of customs duty on the inputs equal to the duty leviable 7 2004 (164) ELT 423 (Tri.-Del.) 8 For short, \u201cthe CEGAT\u201d 9 2000 (120) ELT 800 (Tribunal-LB) 10 For short, the \u201cCBEC Circular\u201d on the import of final product is putting floriculture EOUs at a disadvantageous position. The circular further envisages that the central excise notifications provided for recovery of duty on inputs procured duty free, whereas the exemption notification provided for recovery on inputs equal to duty on the final product. That the amendment notification was issued to address this anomaly and to harmonise the central excise and customs notifications. The appellant placed reliance on the Constitution Bench decision of this Court in Commissioner of Income Tax (Central) \u2013 I, New Delhi vs. Vatika Township Private Limited11, wherein it had been observed that whenever the legislator intends to confer benefit upon a person, it must be presumed to have retrospective effect. The appellant relied upon yet another decision of this Court in Zile Singh vs. State of Haryana & Ors.12 to contend that the substitution of a clause which clarifies about the intent of the legislature takes effect from the date of enactment of original provision. The appellant would further urge that Section 12 of the 1962 Act being the charging section, could only be applied if the goods are imported into India 11 (2015) 1 SCC 1 12 (2004) 8 SCC 1 and since the cut flowers are not imported, the show cause notice issued under the provisions of the 1962 Act is bad in law. In this regard, the appellant had placed reliance on Commissioner of Central Excise and Customs vs. Suresh Synthetics13. The appellant further relied on the exposition of this Court in Uniworth Textiles Limited vs. Commissioner of Central Excise, Raipur14 to submit that Section 28 of the 1962 Act, extending limitation, can be invoked only in the case of deliberate default and urged that it cannot be invoked in the present case since there was no default. 8. Per contra, the respondent would urge that in the fact situation of the present case, the department has correctly levied the customs duty, as the DTA sales made were in contravention of the EXIM policy and the appellant had no permission from the Development Commissioner to clear the goods in DTA. The respondent further urged that the amendment seeks to bring about a substantive change, whilst pointing out that the CBEC Circular in its opening paragraph speaks about \u201ccarrying out\u201d the amendment. Further, the amendment must be applied 13 2007 (216) ELT 662 (SC) 14 (2013) 9 SCC 753 prospectively. Reliance is placed upon the decision of this Court in Union of India & Anr. vs. IndusInd Bank Limited & Anr. 15, wherein it has been held that if the provision is remedial in nature, it cannot be construed as clarificatory or declaratory and has to be applied prospectively. 9. We have heard Mr. Rupesh Kumar, learned counsel for the appellant and Mr. Ashok K. Srivastava, learned senior counsel for the respondent. 10. The issues that arise for consideration in this appeal are: (i) Whether customs duty can be charged on the non\u00adexcisable goods produced in India and sold in DTA by an EOU?; and (ii) Whether the amendment in terms of Notification No. 56/01\u00adCus dated 18.05.2001, purporting to amend the criteria for determination of duty on inputs, is prospective or retrospective in its application? 11. At the outset, it is apposite to refer to the stated notification. The relevant extract thereof reads as under: \u201cNOTIFICATION NO. 126/94\u00adCUS DATED 3.6.1994 Exemption to import of specified goods for use in manufacture of export goods by 100% E.O.Us. \u00ad In exercise of the powers conferred by sub\u00adsection (1) of section 25 of the Customs Act, 1962 (52 of 1962), the 15 (2016) 9 SCC 720 Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts goods specified in Annexure\u00adI to this notification (hereinafter referred to as the goods), when imported into India, for the production or manufacture of articles specified in Annexure\u00adII for export out of India or for being used in connection with the production, manufacture or packaging of the said articles specified in Annexure\u00adII for export out of India (hereinafter referred to as the specified purpose) by hundred per cent Export Oriented Undertakings approved by the Board of Approval for hundred per cent Export Oriented Undertakings, appointed by the notification of Government of India in the former Ministry of Industry and Civil Supplies, (Department of Industrial Development) No. S.0.163(E)/RLIU/10(2)76, dated the 3rd March, 1976 or the Development Commissioner concerned as the case may be, from the whole of the duty of customs leviable thereon under the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) and the additional duty, if any, leviable thereon under section 3 of the second mentioned Act, subject to the following conditions, namely :\u00ad (1) the importer has been granted the necessary licence for the import of the said goods; (2) the importer, at the time of import of the said goods, produces to the Assistant Commissioner of Customs a certificate from the Development Commissioner to the effect that the importer has executed a bond in such form and for such sum as may be prescribed binding himself\u00ad (a) to bring the said goods into his unit and to use them for the specified purpose; and (b) to dispose of the said goods or the articles produced, manufactured or packaged in the unit or the waste, scrap or remanents arising out of such production, manufacture or packaging in the manner as may, if any, be prescribed in the Export\u00adImport Policy and in this notification;\u2026.. xxx xxx xxx 3. Notwithstanding anything contained in this notification, the exemption contained herein shall also apply to the said goods which on importation into India are used for the purposes of production, manufacture or packaging of articles and such articles (including rejects, waste and scrap material arising in the course of production, manufacture or packaging of such articles) even if not exported out of India are allowed to be sold in India under and in accordance with the Export\u00adImport Policy and in such quantity and subject to such other limitations and conditions as may be specified in this behalf by the Development Commissioner, on payment of duty of excise leviable thereon under section 3 of the Central Excises and Salt Act, 1944 (1 of 1944) or where such articles (including rejects, waste and scrap material) are not excisable, on payment of customs duty on the said goods used for the purpose of production, manufacture or packaging of such articles, in an amount equal to the customs duty leviable on such articles as if imported as such.) Explanation.\u00ad For the purposes of this notification, \"Export\u00adImport Policy\" means Export and Import Policy, 1st April, 1997 \u00ad 31st March, 2002, published by the Government of India in the Ministry of Commerce Notification No. 1/1997\u00ad2002, dated 31 st March, 1997, as amended from time to time. \u2026..\u201d (emphasis supplied) 12. A bare perusal of the above notification would evince that apart from providing for duty free imports of inputs for an 100% EOU in order to export all the goods produced or manufactured by it, in addition, it also gives liberty to the 100% EOUs to clear their goods in DTA to the extent permissible by and in accordance with the EXIM policy. The EXIM policy, at paragraph 9.9 provided that for earning an entitlement to make sales in DTA, the unit has to maintain positive net foreign exchange earning. The calculation of net foreign exchange earning, as defined at paragraph 9.29, is provided for at paragraph 9.5 of the Policy, which had to be done as prescribed in Appendix I of the Policy. In case of cut flowers, it has been fixed at 20% since it would come within the category of \u201cProducts not covered above\u201d. 13. On a combined reading of the notification with the conditions laid down in the EXIM policy, it is clear that the fulfilment of the aforesaid conditions is a condition precedent to become eligible to make DTA sales. Resultantly, if goods are cleared in DTA sales in breach of the aforesaid conditions, customs duty would be leviable, as if such goods were imported goods. 14. Reverting to the first question, the appellant lays emphasis that the DTA sales made by an 100% EOU can only be amenable to excise duty and show cause notice under the provisions of the 1962 Act could not have been issued. This ground finds support in the decision of larger bench of the CEGAT in Vikram Ispat (supra), which the appellant relies upon. In paragraph 16 of the said decision, it has been held as under: \u201c16. Notification No. 2/95\u00adC.E., dated 4\u00ad1\u00ad95 provides that the goods manufactured and cleared by a 100% E.O.U. to DTA will be exempted from so much of duty of excise as is in excess of the amount calculated at the rate of 50% of each of duty of customs leviable read with any other notification for the time being in force on the like goods produced or manufactured outside India, if imported into India provided that the amount of duty payable shall not be less than the duty of excise leviable on like goods produced or manufactured by the units in Domestic Tariff Area read with any relevant notification. It is, thus apparent that notification No. 2/95 provides a minimum limit of the rate of duty which has to be paid by the 100% E.O.U. while clearing the goods to DTA and this limit is provided by the duty of excise leviable on like good manufactured outside 100% E.O.U. However, if the aggregate of duty customs leviable on goods cleared by 100% E.O.U. is more than the duty of excise leviable on like goods, a 100% E.O.U. has to pay more duty. The Revenue wants to restrict the availment of Modvat credit to the components of additional duty of customs paid under Section 3 of the Customs Tariff Act by bringing the fiction that 100% E.O.U. is a place which is not in India and the sale therefrom within India is akin to import into India. We do not find any substance in this view of the Revenue. The clearance of the goods by 100% E.O.U. are not import in the terms in which it has been defined under Section 2 (23) of the Customs Act, according to which import, with its grammatical and cogent expression means bringing into India from a place outside India. This is also apparent from the fact that when the goods are cleared from 100% E.O.U. to any place in India, central excise duty under Section 3(1) of the Central Excise Act is levied and not the customs duty under the Customs Act. If it is to be regarded as import, then the duty has to be charged under Section 12 of the Customs Act, read with Section 3 of the Customs Tariff Act. The Revenue, it seems is confusing the measure of the tax with the nature of the tax. The nature of the duty levied on the goods from 100% E.O.U. is excise duty and nothing else, whereas for determining the quantum of duty the measure adopted is duty leviable under Customs Act as held by the Supreme Court in many cases referred to above. The method adopted by the law makers in recovering the tax cannot alter its character. Once it is held that the duty paid by the 100% E.O.U. in respect of goods cleared to any place in India is excise duty, the question of dissecting the said duty into different components of basic customs duty, auxiliary duty, additional duty of Customs or any other customs duty does not arise. The proforma of AR\u00ad1A on which the reliance was placed by the learned D.R., cannot change the legal position that the duty levied on 100% E.O.U. is a duty of excise and not customs duty.\u201d (emphasis supplied) However, this exposition has no application to the fact situation of the present case, in as much as there had been no contravention of conditions of EXIM Policy and the issue was only about the nature of tax, in case of goods otherwise amenable to excise duty. 15. Concededly, the DTA sales pertaining to excisable goods made in conformity with the conditions of the EXIM policy are exigible to excise duty, but once there is contravention of the condition(s) of the EXIM policy, irrespective of the goods produced being excisable or non\u00adexcisable, the benefit under the exemption notification is unavailable. In such a situation, the very goods would become liable to imposition of customs duty as if being imported goods. 16. We may now examine as to what would be the position in case of sale of non\u00adexcisable goods as per conditions specified under the EXIM policy. Assuming there was no contravention of the EXIM policy, in case of the goods cleared being non excisable, the Paragraph 3 of the exemption notification would come into play and the duty would be leviable on the inputs used in such goods. It is relevant to bear in mind Section 12 of the 1962 Act here, being the charging section, as is set out hereunder: \u201cSection 12 \u2013 Dutiable Goods (1) Except as otherwise provided in this Act, or any other law for the time being in force, duties of customs shall be levied at such rates as may be specified under the Customs Tariff Act, 1975 (51 of 1975), or any other law for the time being in force, on goods imported into, or exported from, India. (2) The provisions of sub\u00adsection (1) shall apply in respect of all goods belonging to Government as they apply in respect of goods not belonging to Government.\u201d It is clear from the above provision that the goods which are imported shall be charged as specified under the Customs Tariff Act, 1975 or \u201cany other law\u201d, unless exempted under the 1962 Act or by \u201cany other law\u201d. 17. In the present case, the notification provides for exemption on import of inputs and at the same time prescribes for adherence of certain conditions for availing the exemption. The notification further prescribes the rate at which the customs duty on the inputs used in the production of non\u00adexcisable goods sold in DTA is to be charged. Thus, the notification, having been issued in exercise of delegated legislation under Section 25 of the 1962 Act, has to be understood as \u201cany other law\u201d. Resultantly, the appellant, having availed exemption under the notification, cannot evade customs duty on the imported inputs at the rate prescribed by the notification. 18. The show cause notice points out that the appellant imported raw materials like \u201cLive Rose Plants\u201d and consumables like fertilizers and planting materials, however, the appellant advisedly chose to confine its argument to \u201ccut flowers\u201d, which, as contended, were grown on Indian soil and thus not amenable to customs duty. However, the demand made in the show cause notice \u201ctreating\u201d cut flowers as deemed to have been imported was only for the purpose of quantification of the customs duty on the imported inputs and not imposition of the customs duty on the domestically grown cut flowers as such. 19. The decision of CESTAT in the case of Cosco Blossoms (supra) is of no avail to the appellant. In that case, the tribunal had relied upon the decision in Vikram Ispat (supra) and held that the cut flowers cleared in DTA sales cannot be charged with customs duty, without considering that the goods were non excisable. Notably, the Tribunal had granted liberty to the authorities to charge customs duty upon the imported inputs, if used in production of the goods cleared in DTA, which supports the case of the respondent. Paragraph 5 of the aforesaid order reads as under: \u201c5. It is well settled [2000 (120) E.L.T. 800] that goods produced in an EOU cannot be treated as imported goods and subjected to customs duty. The duty payable in respect of such goods is the duty of excise under Section 3 of the Central Excise Act, 1944. Therefore, the duty demand made in the impugned order under Section 28 of the Customs Act is not sustainable. Accordingly, we set aside the impugned order and allow the present appeal. However, we make it clear that revenue authorities will be at liberty to demand duty on the imported inputs, if any, used in the production of the cut\u00adflowers in question. The appeal is disposed of as above.\u201d (emphasis supplied) 20. A priori, the demand in the present case, pertaining to the non\u00adexcisable goods has rightly been made under the 1962 Act upon the imported inputs used in the production of goods sold in DTA in violation of condition(s) in the EXIM Policy. 21. The decision of CESTAT in Suresh Synthetics (supra) is not applicable to the present case. The goods in that case were Polyster Textured Yarn, which are excisable goods. The investigations were made as per provisions of the Central Excise Act, 194416, however, show cause notice was issued under 16 For short, \u201cthe 1944 Act\u201d provisions of the 1962 Act. Thus, it was held that the demand is not maintainable as it was made under a defective show cause notice. 22. In case of excisable goods, even the present notification takes resort to Section 3 of the 1944 Act, as can be seen from the Paragraph 3 of the notification extracted above. Whereas, the provisions of the 1962 Act are invoked only when the goods are non\u00adexcisable. In the present case, since the cut flowers are non\u00ad excisable goods, the demand for payment of customs duty had rightly been made vide show cause notice under the provisions of the 1962 Act. 23. Moving to the second question, the show cause notice was issued to the appellant prior to the issuance of the amendment notification. In this backdrop, let us now examine the contention of the appellant that the amendment notification being retrospective in its application. The relevant portion of the said notification is reproduced hereunder: \u201cNOTIFICATION NO. 56 /2001\u00adCUS DATED 18.5.2001 In exercise of the powers conferred by sub\u00adsection (1) of section 25 of the Customs Act, 1962 (52 of 1962), the Central Government being satisfied that it is necessary in the public interest so to do, hereby directs that each of the notifications of the Government of India in the Ministry of Finance (Department of Revenue), specified in column (2) of the Table hereto annexed shall be amended or further amended, as the case may be, in the manner specified in the corresponding entry in column (3) of the said Table. TABLE Sr.No Notification No. Amendment and Date (1) (2) (3) xxx Xxx xxx 8. 126/94\u00adCus In the said notification,\u00ad dated the 3rd June, 1994 (a) in the first paragraph, in condition (6), after clause (d), the following shall be inserted, namely:\u00ad \" (e) permit destruction of rejects and waste without payment of duty within the unit, or outside the said unit, where it is not possible or permissible to destroy the same within the said unit, in the presence of Customs or Central Excise officer.\"; (b) in paragraph 2, in the proviso, for the words and figures \"duty of 15% ad valorem\", the words and figure \"duty of 5% ad valorem\" shall be substituted; (c) in paragraph 3, in clause (a), for the words \"on payment of customs duty on the said goods used for the purpose of production, manufacture or packaging of such articles in an amount equal to the customs duty leviable on such articles as if imported as such.\", the following shall be substituted, namely:\u00ad \"customs duty equal in amount to that leviable on inputs obtained under this notification and used for the purpose of production, manufacture or packaging of such articles, which would have been paid, but for the exemption under this notification, shall be payable at the time of clearance of such articles. \u2026..\" (emphasis supplied) 24. As can be seen, the aforesaid notification posits of carrying out amendments and substituting the charging clause of the inputs used in case of non\u00adexcisable goods. The language employed in the notification does not offer any guidance on whether the amendments as made were to apply prospectively or retrospectively. It is a settled proposition of law that all laws are deemed to apply prospectively unless either expressly specified to apply retrospectively or intended to have been done so by the legislature. The latter would be a case of necessary implication and it cannot be inferred lightly. 25. In this regard, the appellant has heavily relied upon the CBEC Circular to contend that the Government intended to apply the notification retrospectively as it was brought in to address an anomaly, which existed vis a vis central excise notifications. The relevant portion of the CBEC Circular is extracted hereunder: \u201cCircular No. 31/2001\u00adCus, dated 24\u00ad5\u00ad2001 xxx xxx xxx (xi) Duty on DTA Clearance of Non\u00adExcisable Goods; 25. At present, the EOUs and units operating under EPZ/STP/EHTP Schemes are allowed to sell finished products (including rejects, waste & scrap) in the Domestic Tariff Area (DTA) on payment of applicable excise duty as per proviso to Section 3 of the Central Excise Act, 1944. However, the same is applicable if the goods being cleared into DTA are excisable goods. Under the present dispensation, the notifications providing duty free import of goods under the above said Schemes stipulate that where the finished products (including rejects, wastes & scrap) sought to be cleared in DTA are not excisable, such products are allowed to be cleared on payment of customs duty on the inputs used for the purpose of production, manufacture, processing or packaging such products in an amount equal to the customs duty leviable on such products as if imported as such. 26. It has been brought to notice of the Board that in some Commissionerates, the floriculture units under the EOU Scheme are being asked to pay duty equivalent to the customs duty leviable on finished goods as if imported as such, for clearance of cut\u00adflowers, which is not an excisable commodity. It has also been stated that the DTA units are not required to pay any duty for sale of cut\u00adflowers, as the same are not excisable. This is stated to have placed the floriculture units in EOUs at a serious disadvantageous position vis\u00ada\u00advis DTA units. 27. The matter has been examined. In the central excise notifications governing duty free procurement by EOUs and units under EPZ/STP/ETHP Schemes, there is a provision to recover duty on the inputs & consumables procured duty free under exemption notification, which have gone into production of non\u00ad excisable goods cleared into DTA. In the notifications governing duty free import by EOUs and the EPZ/STP/EHTP units, the anomaly, however, exists inasmuch as the notifications talk about payment of customs duty on the inputs used in the manufacture of articles in an amount equal to the customs duty leviable on such articles as if imported as such. In order to remove this anomaly, all the notifications governing duty free import of goods by STP/EHTP/EPZ units and EOUs including those in Aquaculture and Agriculture sector have been amended so as to bring the provisions of these notifications in harmony with the provisions of corresponding Central Excise notifications. Notification No. 56/2001\u00adCus, dated 18\u00ad5\u00ad2001 may be seen for details.\" (emphasis supplied) 26. Upon a bare reading of the circular, it can be noted that it discusses the mechanism in force before the amendment, the reason for bringing in the change and the changes brought in. The circular does not mention that the earlier methodology in force was deficient or devoid of clarity in any manner. It rather says that the same was being disadvantageous to the EOU units as compared to the DTA units due to the difference in charging rates in the respective circulars. Upon considering that, the amendment has been brought in to establish parity with the excise notifications and to vindicate the disadvantage that earlier regime was causing to EOU units. Merely because an anomaly has been addressed, it cannot be passed off as an error having been rectified. Unless shown otherwise, it has to be seen as a conscious change in the dispensation, particularly concerning the fiscal subject matters. The word \u201canomaly\u201d has been defined in Webster's New Twentieth Century Dictionary to mean \u201cabnormality; irregularity; deviation from the regular arrangement, general rule or the usual method\u201d. 27. In the context of the subject circular, since it takes note of the previous arrangement and distinguishes it from the excise notifications, the meaning has to be taken as deviation from the regular arrangement, which by no stretch of imagination can be treated as a mere mistake. To call the amendment notification clarificatory or curative in nature, it would require that there had been an error/mistake/omission in the previous notification which is merely sought to be explained. 28. To understand if the Government brought in the amendment notification to clarify that the articles were to be charged at the rate of duty provided for inputs and not for the final articles, it would be necessary to analyse the position prior to the amendment and to see if duty on inputs chargeable at the rate of final articles was an error that crept in. In this regard, we may refer to Section 3 of the 1944 Act as it stood during the relevant period, which is set out hereunder: \u201cSection 3. Duties specified in the First Schedule and the Second Schedule to the Central Excise Tariff Act, 1985 to be levied\u00ad (1) There shall be levied and collected in such manner as may be prescribed,\u00ad (a) a duty of excise on all excisable goods which are produced or manufactured in India as, and at the rates, set forth in the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986); (b) a special duty of excise, in addition to the duty of excise specified in Clause (a) above, on excisable goods specified in the Second Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) which are produced or manufactured in India, as, and at the rates, set forth in the said Second Schedule. Provided that the duties of excise which shall be levied and collected on any excisable goods which are produced or manufactured,\u00ad\u00ad (i) in a free trade zone and brought to any other place in India; or (ii) by a hundred per cent export\u00adoriented undertaking and allowed to be sold in India, shall be an amount equal to the aggregate of the duties of customs which would be leviable Under Section 12 of the Customs Act, 1962 (52 of 1962), on like goods produced or manufactured outside India if imported into India, and where the said duties of customs are chargeable by reference to their value; the value of such excisable goods shall, notwithstanding anything contained in any other provision of this Act, be determined in accordance with the provisions of the Customs Act, 1962 (52 of 1962) and the Customs Tariff Act, 1975 (51 of 1975).\u201d (emphasis supplied) The proviso to the charging section of the 1944 Act provides that an EOU making DTA sales shall be charged duty as if the goods were imported into India and in value equal to the customs duty chargeable thereto. No doubt, the said provision applies only in cases of excisable goods, but the exemption notification providing for similar duty by terms thereunder for non\u00adexcisable goods, can be understood to have been made to equate the duty in case of excisable as well as non\u00adexcisable goods. Therefore, it must follow that the said provision was not an error that crept in but was intentionally introduced by the Government to determine the charging rate, as discussed above. That being the position prior to amendment, the amendment brought in cannot be said to be clarificatory in nature. 29. The decision of this Court in Zile Singh (supra) is of no avail to the appellant. In as much as it was a case of poor choice of words by the draftsmen, which led to absurdity in interpretation and a subsequent substitution of such words to make the intention clear. In the present case, as discussed above, there was no error present in the prevailing dispensation and it was a policy decision to give relief to the EOU units from the date of its amendment. 30. In Vatika Township (supra), Constitution Bench of this Court has analysed the principle concerning retrospectivity. The appellant heavily relies upon the observation made at paragraph 30 of the decision, which reads thus: \u201c30. ... If a legislation confers a benefit on some persons but without inflicting a corresponding detriment on some other person or on the public generally, and where to confer such benefit appears to have been the legislators' object, then the presumption would be that such a legislation, giving it a purposive construction, would warrant it to be given a retrospective effect. \u2026\u201d. The appellant clearly misinterprets the context of the above observation by reading the same in isolation. To have a better understanding of the said principle, it is relevant to read the preceding and subsequent paragraphs. We may here refer to Paragraph 32 of the said decision, which is extracted below: \u201c32. Let us sharpen the discussion a little more. We may note that under certain circumstances, a particular amendment can be treated as clarificatory or declaratory in nature. Such statutory provisions are labelled as \u201cdeclaratory statutes\u201d. The circumstances under which provisions can be termed as \u201cdeclaratory statutes\u201d are explained by Justice G.P. Singh in the following manner: \u201cDeclaratory statutes The presumption against retrospective operation is not applicable to declaratory statutes. As stated in CRAIES and approved by the Supreme Court: \u2018For modern purposes a declaratory Act may be defined as an Act to remove doubts existing as to the common law, or the meaning or effect of any statute. Such Acts are usually held to be retrospective. The usual reason for passing a declaratory Act is to set aside what Parliament deems to have been a judicial error, whether in the statement of the common law or in the interpretation of statutes. Usually, if not invariably, such an Act contains a Preamble, and also the word \u201cdeclared\u201d as well as the word \u201cenacted\u201d.\u2019 But the use of the words \u2018it is declared\u2019 is not conclusive that the Act is declaratory for these words may, at times, be used to introduced new rules of law and the Act in the latter case will only be amending the law and will not necessarily be retrospective. In determining, therefore, the nature of the Act, regard must be had to the substance rather than to the form. If a new Act is \u2018to explain\u2019 an earlier Act, it would be without object unless construed retrospective. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended. The language \u2018shall be deemed always to have meant\u2019 is declaratory, and is in plain terms retrospective. In the absence of clear words indicating that the amending Act is declaratory, it would not be so construed when the pre\u00adamended provision was clear and unambiguous. An amending Act may be purely clarificatory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect and, therefore, if the principal Act was existing law which the Constitution came into force, the amending Act also will be part of the existing law.\u201d The above summing up is factually based on the judgments of this Court as well as English decisions.\u201d Upon reading the observations at Paragraph 30 and juxtaposed with paragraph 32, it is crystal clear that an essential requirement for application of a legislation retrospectively is to show that the previous legislation had any omission or ambiguity or it was intended to explain an earlier act. In absence of the above ingredients, a legislation cannot be regarded as having retrospective effect. 31. In IndusInd Bank (supra), this Court, while examining whether the amendment made to Section 28 of the Indian Contract Act, 1872 was prospective or retrospective, has noted that the said provision is remedial in nature and not clarificatory, since prior to the amendment, the rights and liabilities accrued were sought to be taken away. Paragraph 24 of the said decision is reproduced below: \u201c24. On a conspectus of the aforesaid decisions, it becomes clear that Section 28, being substantive law, operates prospectively, as retrospectivity is not clearly made out by its language. Being remedial in nature, and not clarificatory or declaratory of the law, by making certain agreements covered by Section 28(b) void for the first time, it is clear that rights and liabilities that have already accrued as a result of agreements entered into between parties are sought to be taken away. This being the case, we are of the view that both the Single Judge and the Division Bench were in error in holding that the amended Section 28 would apply.\u201d We are in agreement with the respondent that this decision squarely applies to the present case as prior to the amendment, the DTA sales made by the appellant have already attracted liability at the prescribed charging rate, which in facts of the present case cannot be undone in reference to the subject amendment. 32. It is relevant here to advert to a decision of Constitution Bench of this Court in Commissioner of Central Excise, New Delhi vs. Hari Chand Shri Gopal & Ors.17, wherein it has been held that an exemption clause ought to be strictly construed according to the language employed therein and in case of any ambiguity, benefit must go to the State. It will be useful to reproduce paragraphs 29 and 30 of the aforesaid decision hereunder: \u201c29. The law is well settled that a person who claims exemption or concession has to establish that he is entitled to that exemption or concession. A provision providing for an exemption, concession or exception, as the case may be, has to be construed strictly with certain exceptions depending upon the settings on which the provision has been placed in the statute and the object and purpose to be achieved. If exemption is available on complying with certain conditions, the conditions have to be complied with. The mandatory requirements of those conditions must be obeyed or fulfilled exactly, though at times, some latitude can be shown, if there is a failure to comply with some requirements which are directory in nature, the non\u00ad compliance of which would not affect the essence or substance of the notification granting exemption. 30. In Novopan India Ltd. this Court held that a person, invoking an exception or exemption provisions, to relieve him of tax liability must establish clearly that he is covered by the said provisions and, in case of doubt or ambiguity, the benefit of it must go to the State. A Constitution Bench of this Court in Hansraj Gordhandas v. CCE and 17 (2011) 1 SCC 236 Customs held that (Novopan India Ltd. case, SCC p. 614, para 16) \u201c16. \u2026 such a notification has to be interpreted in the light of the words employed by it and not on any other basis. This was so held in the context of the principle that in a taxing statute, there is no room for any intendment, that regard must be had to the clear meaning of the words and that the matter should be governed wholly by the language of the notification i.e. by the plain terms of the exemption.\u201d \u201d Applying the aforequoted dictum to the present case, the appellant was obliged to comply with the conditions prescribed by the EXIM Policy, to avail the exemption under the stated notification; and failure to do so, must denude them of the exemption so granted. Further, since the charging rate prescribed under the exemption notification is under question, any ambiguity in regard to the date of application of the amendment thereto would necessarily have to be construed in favour of the State, unless shown otherwise by judicially acceptable parameters. 33. The next contention of the appellant is that Section 28 of the 1962 Act cannot be invoked to extend the limitation as there was no wilful mis\u00adstatement or suppression of facts on behalf of the appellant. The decision of this Court in Uniworth Textiles (supra), has been relied upon by the appellant. The same explains the situations in which Section 28 of the 1962 Act can be invoked. It had been held in the said decision that the extension of limitation for a period of five years can be done only in cases of deliberate default and not inadvertent non\u00adpayment. It was further held that the burden for proving mala fide conduct is on the revenue; and specific averments in that regard must find place in the show cause notice. 34. In the fact situation of the present case, the appellant was issued a show cause notice mentioning that it had suppressed the DTA sales of cut flowers to evade payment of duty. Had the appellant in good faith believed that no duty was payable upon the DTA sales of cut flowers, it would have sought prior approval of the Development Commissioner, which it failed to do. Even in the letter seeking ex\u00adpost facto approval, the appellant claimed that they had not used any imported input such as fertilizer, plant growth regulations, etc. in growing flowers sold in DTA, despite having imported green house equipment, raw materials like Live Rose Plants and consumables like planting materials and fertilizers. Therefore, it prima facie appeared that suppression by the appellant was \u201cwilful\u201d. The burden of proving to the contrary rested upon the appellant, which the appellant failed to discharge by failing to establish that the imported inputs were not used in the production of the cut flowers sold in DTA. In view thereof, the authorities below have rightly invoked Section 28 of the 1962 Act and allied provisions. 35. In light of the foregoing discussion and observations, we are of the view that CESTAT has rightly upheld the levy of customs duty. 36. This appeal, therefore, deserves to be dismissed. It is so ordered. There shall be no order as to costs. Pending applications, if any, shall stand disposed of. ................................., J. (A.M. Khanwilkar) \u2026.............................., J. (Dinesh Maheshwari) New Delhi; September 1, 2020.",
        "1716348": "CASE NO.: Appeal (crl.) 660 of 2005 PETITIONER: M.C.D. RESPONDENT: State of Delhi and Anr. DATE OF JUDGMENT: 29/04/2005 BENCH: Ashok Bhan & Dr. AR. Lakshmanan JUDGMENT: JUDGMENT ORDER Leave granted. Municipal Corporation of Delhi, aggrieved against the judgment and final order dated 26.03.2004 passed by the High Court Delhi in Criminal Revision Petition No. 185 of 2004 by which order the High Court gave the benefit of probation under Section 4 of the Probation of Offenders Act, 1958 (herein after referred to as \"POB Act\") to the second respondent - Gurcharan Singh but maintained the conviction, preferred the above appeal. The brief facts leading to the filing of the above appeal are as under : One Mr. M.K. Verma (PW-4), Junior Engineer, Civil Line Zone, visited 189 Prem Gali, Punja Sharif, Mori Gate where he found unauthorized construction going at the first floor of the said plot. F.I.R. was prepared on the report of Mr. M.K. Verma who forwarded the F.I.R. before Zonal Engineer, who ordered to issue notice under Section 343/344 of the Delhi Municipal Corporation Act, 1957 (for short the \"DMC Act\"). Subsequently, the second respondent along with Kuldeep Singh were prosecuted for commission of offences under Sections 332 and 461 of the DMC Act before the designated Municipal Court. The trial Court, after the conclusion of the trial, convicted the second respondent under Sections 332 and 461 of the DMC Act and sentenced him to six months simple imprisonment and imposed a fine of Rs. 5000 (Annexure P-1). Aggrieved by that order, the second respondent-accused filed an appeal before the Sessions Court, Delhi. The said Court by an order and judgment dated 23.3.2004 dismissed the appeal by holding that there was no infirmity in the order passed by the trial Court (Annexure P-2). Against the judgment and order dated 23.3.2004, the accused filed Criminal Revision Petition No. 185 of 2004 before the High Court Delhi. At the time of arguments, the advocate for the accused submitted before the High Court that the accused did not wish to challenge the conviction on merits and stated it a fit case of accused to be admitted to the benefit of POB Act on the ground that the accused faced trial for 12 years in the lower courts and remained in jail for three days. The High Court vide its order dated 26.3.2004 held that the accused suffered the agony of trial lasting for 12 years. Besides that he has already undergone some period in custody. The High Court also observed that there is no allegation that the petitioner-accused is a previous convict and it further held that the accused deserved the benefit of probation under Section 4 of the POB Act and while maintaining the conviction of the respondent-accused, the sentence of imprisonment and fine as awarded to him was set aside. The appellant, aggrieved by the judgment of the High Court, preferred the above appeal by way of special leave petition before this Court. We have perused the entire pleadings, orders and judgments passed by the lower Courts and also of the High Court, the other annexures, in particular, annexures P-1 and P-2, and records annexed to this appeal and also heard the arguments of Mr. Ashwani Kumar, learned senior counsel appearing for the appellant, Mr. Vikas Sharma, learned counsel appearing for respondent No. 1 and Mr. Jaspal Singh, learned senior counsel, appearing for the second respondent. Learned senior counsel appearing for the appellant submitted that the High Court, before extending the benefit of POB Act to the accused did not call for a report from the authorities to check upon the conduct of the accused- respondent as per Section 4(2) of the POB Act and that the appellant-MCD was also not given time to file their counter affidavit on the question of sentence. He further submitted that the High Court while passing the impugned order and judgment did not take into consideration that the accused-respondent had been convicted in another criminal case No. 202 of 1997 by the Court of Metropolitan Magistrate, Patiala House, New Delhi. In the said case, the accused-respondent was convicted under Section 332/461 of the DMC Act and sentenced to six months simple imprisonment with a fine of Rs. 5000. Learned senior counsel appearing for the appellant further submitted that there was no good reason for letting the respondent off by granting to him the said benefit of POB Act, particularly keeping in view the large scale irregularity and unauthorized constructions carried by the builders in Delhi despite strict direction of the Municipal authorities and courts passing various orders from time to time against the unauthorized constructions. It was further submitted that the High Court should not have waived off the payment of fine amount by the accused respondent and that the High Court ought to have taken into consideration that the respondent has been in jail for only three days and had not put in substantial period in custody. It was further submitted by learned senior counsel appearing for the appellant that the Court shall not direct release of offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the Court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond. It was also contended that before making any order under Section 4(1) of the POB Act, the Court shall take into consideration the report, if any, of the probation officer concerned in relation to the case which the High Court has miserably failed to do so. Therefore, learned senior counsel appearing for the appellant, prayed that order dated 26.3.2004 in Crl.Rev. Pet. No. 185 of 2004 be set aside and appropriate orders be passed in this appeal. Learned senior counsel appearing for the contesting respondent submitted that the order of the High Court does not require any reconsideration by this Court and that the High Court while extending the benefit of POB Act had clearly recorded in the order that the counsel for the State of Delhi is not averse to the grant of benefit of probation to the answering respondent and, therefore, the requirement under Section 4(2) of the POB Act has been waived off by the State and that the High Court took into consideration the fact that the answering respondent has faced the agony of trial for over 12 years and has also undergone some period in custody and while maintaining the conviction of the answering respondent, the benefit of probation was extended to him. It was, therefore, submitted that the High Court passed the said order in the presence of the counsel of all the parties. Learned senior counsel appearing for the second respondent submitted that in S.T.No. 202 of 1997 , a judgment was given by the Metropolitan Magistrate on 10.9.2002 and the respondent filed an appeal No. 374 of 2002 before the Court of Sessions, Patiala House, New Delhi challenging the said order of conviction and in that appeal, the Court of Additional Sessions Judge, Patiala House, suspended the sentence during the pendency of the appeal upon furnishing a personal bond for a sum of Rs. 25,000 with one surety of the like amount to the satisfaction of the trial Court. It was, therefore, submitted that the sentence/imprisonment awarded by the Metropolitan Magistrate has been suspended under Section 389 of the Criminal Procedure Code by the Court of Additional Sessions Judge, Delhi in view of the pendency of the appeal against the order of conviction is a continuation of proceedings and therefore, there is no conviction against the answering respondent so long as the same is not decided by the Court of Sessions. It was also submitted that the requirement of calling of a report from the Probationer Officer under Section 4(2) of the POB Act has been waived off by the counsel for the State of Delhi and that the counsel for the MCD also did not raise any objection before the High Court. It was further contended that the respondent has not contested the revision in the High Court on merits and confined his submission to the benefit of Section 4 of the POB Act being extended to him. Therefore, there is no occasion for the High Court to go into the issue of extent of constructions being raised by the answering respondent. He further contended that the trial Court has committed serious error in exercising jurisdiction while not granting the benefit of probation to the answering respondent and the order of the trial Court was, therefore, rightly and justifiable modified by the High Court. Concluding his arguments, he submitted that the respondent has been released after compliance of the order passed by the High Court by furnishing the bone of good conduct and security to the satisfaction of the Additional Court of Metropolitan Magistrate, Delhi and there is no report of any misconduct or breach of the bond of good conduct by the answering respondent since the date of the order of the High Court, therefore, the order of the High Court is not liable to be interfered with. In the above background, two questions of law arise for consideration by this Court : \"1. Whether the High Court was correct in extending the benefit of the Probation of Offenders Act, 1958 to the accused respondent without calling for a report from the Authorities relating to the conduct of the respondent as per Section 4 of the Act. 2. Whether the High Court was correct in passing the impugned judgment in view of the fact that the respondent has been convicted in another criminal case No. 202 of 1997 by the trial Court, New Delhi.\" Before proceeding further, it would be beneficial to reproduce Section 4 of the Probation of Offenders Act, 1958 which is extracted below for ready reference :- Power of court to release certain offenders on probation of good conduct:- 1. When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having record to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour : Provided that the court shall no direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond. 2. Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the Probation Officer concerned in relation to the case.\" It is the specific case of the appellant herein that the High Court has not afforded to the appellant an opportunity to file counter affidavit. The appellant would have filed the orders passed by the criminal Courts convicting the respondent herein had an opportunity been given to the appellant. The High Court while passing the impugned order and judgment did not take into consideration that the accused-respondent has been convicted in another Criminal Case No. 202 of 1997 by the Court of Metropolitan Magistrate, Patiala House, New Delhi. In the said case, the accused has been convicted under Sections 332/461 of the DMC Act and sentenced to six months simple imprisonment with fine of Rs. 5000. In our view, there was no good reason for letting the respondent off by granting to him the said benefit of POB Act particularly, keeping in view the large scale irregularity and unauthorized constructions carried by the builders in Delhi despite strict direction of the Municipal authorities and despite of the Courts passing various orders from time to time against the unauthorized construction. The High Court also failed to take into consideration that the respondent has been in jail for three days and had not put in substantial period in custody. The High Court vide its order impugned in this appeal has observed that there is no allegation that the respondent is a previous convict. In fact, as could be seen from the annexures filed along with this appeal, the respondent has been convicted for offence under Sections 332 and 461 of the DMC Act. The Trial Court heard the respondent on sentence also and passed the following order: \"Convict in person with counsel Heard on sentence. It is contended that he is first offender. He is not a previous convict nor habitual offender. He has faced trail since 1991. He is aged about 57 years. He is not doing any business due to his bad health. Considering the above facts and circumstances, and gravity of the nature of the offence i.e. extent of construction raised by the accused for commercial as 11 shops at ground floor and 11 shops at first floor, I am not inclined to release the accused/convict on probation. Hence request declined. In the interest of justice, sentence of six months SI, with fine of Rs. 5000 I.D. one month SI is imposed upon the convict for offence u/s 332/461 DMC Act. Fine deposited. Convict remained for sentence.\" The Additional Sessions Judge, New Delhi also in Civil Appeal No. 7 of 2002 (Annexure P-2) dismissed the appeal as there is no infirmity in the order of the trial Court and uphold the conviction order passed by the trial Court on the point of sentence. The appellate Court held that no interference is required in the order passed by the trial court regarding point of sentence. Since the appellant-MCD was not given any opportunity by the High Court to file conduct report of the respondent, the order impugned in this appeal is liable to be set aside. This apart, the respondent did not also disclose the fact in the criminal revision filed before the High Court that he has also been convicted in another Criminal Case No. 202 of 1997 by the Court of Metropolitan Magistrate, Patiala House, New Delhi. Thus, the contesting respondent has come to the High Court with unclean hands and withholds a vital document in order to gain advantage on the other side. In our opinion, he would be guilty of playing fraud on the Court as well as on the opposite party. A person whose case is based on falsehood can be summarily thrown out at any stage of the litigation. We have no hesitation to say that a person whose case is based on falsehood has no right to approach the Court and he can be summarily thrown out at any stage of the litigation. In the instant case, non-production of the order and even non-mentioning of the conviction and sentence in the criminal Case No. 202 of 1997 tantamounts to playing fraud on the Court. A litigant who approaches the Court is bound to produce all documents which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well on the opposite party. The second respondent, in our opinion, was not justified in suppressing the material fact that he was convicted by the Magistrate on an earlier occasion. Since the second respondent deliberately suppressed the crucial and important fact, we disapprove strongly and particularly, the conduct of the second respondent and by reason of such conduct, the second respondent disentitled himself from getting any relief or assistance from this Court. We, however, part with this case with heavy heart expressing our strong disapproval of the conduct and behaviour but direct that the second respondent to pay a sum of Rs. 10,000 by way of cost to the appellant herein. We have already reproduced Section 4 of the POB Act. It applied to all kinds of offenders whether under or above 21 years of age. This section is intended to attempt possible reformation of an offender instead of inflicting on him the normal punishment of his crime. The only limitation imposed by Section 6 is that in the first instance an offender under twenty one years of age, will not be sentenced to imprisonment. While extending benefit of this case, the discretion of the Court has to be exercised having regard to the circumstances in which the crime was committed, the age, character and antecedents of the offender. Such exercise of discretion needs a sense of responsibility. The offender can only be released on probation of good conduct under this section when the Court forms an opinion, having considered the circumstances of the case, the nature of the offence and the character of the offender, that in a particular case, the offender should be released on probation of good conduct. The section itself is clear that before applying the section, the Magistrate should carefully take into consideration the attendant circumstances. The second respondent is a previous convict as per the records placed before us. Such a previous convict cannot be released in view of Section 4 of the POB Act. The Court is bound to call for a report as per Section 4 of POB Act but the High Court has failed to do so although the Court is not bound by the report of the Probationer Officer but it must call for such a report before the case comes to its conclusion. The word \"shall\" in sub-section (2) of Section 4 is mandatory and the consideration of the report of the Probationer Officer is a condition precedent to the release of the accused as reported in the case of State v. Naguesh G. Shet Govenkar and Anr., AIR (1970) Goa 49 and a release without such a report would, therefore, be illegal. In the case of Ram Singh and Ors. v. State of Haryana, [1971] 3 SCC 914, a Bench of two Judges of this Court in paragraph 16 of the judgment observed as under : \"Counsel for the appellants invoked the application of Probation of Offenders Act. Sections 4 and 6 of the Act indicate the procedure requiring the Court to call for a report from the Probation Officer and consideration of the report and any other information available relating to the character and physical and mental condition of the offender. These facts are of primary importance before the Court can pass an order under the Probation of Offenders Act. This plea cannot be entertained in this Court.\" In the case of R. Mahalingam v. G. Padmavathi and Anr., (1979) Crl. LJ NOC 20 Mad., the Court observed as under : \"If any report is filed by the probation officer, the Court is bound to consider it. Obtaining such a report of the probation officer is mandatory since the sub-s.(1) of S. 4 says that the Court shall consider the report of the probation officer. Words \"if any\" do not mean that the Court need not call for a report from the probation officer. The words \"if any\" would only cover a case where notwithstanding such requisition, the probation officer for one reason or other has not submitted a report. Before deciding to act under S. 4 (1), it is mandatory on the part of the Court to call for a report from the probation officer and if such a report is received, it is mandatory on the part of the Court to consider the report. But if for one reason or the other such a report is not forthcoming, the Court has to decide the matter on other materials available to it. In the instant case, the Magistrate passed order releasing the accused on probation without taking into consideration their character. Held, the requirement of S. 4(1) was not fulfilled and therefore the case remanded.\" Since the High Court has disposed of the criminal revision without giving an opportunity of filing counter affidavit to the counsel for the MCD and that the respondent did not disclose the fact in the criminal revision filed before the High Court that he has also been convicted in another criminal case No. 202 of 1997, the judgment impugned in this appeal cannot be allowed to stand. We, therefore, have no hesitation in setting aside the order impugned and remit the matter to the High Court for fresh disposal strictly in accordance with law. The appeal is, accordingly, allowed with costs of Rs. 10,000 to be paid by the second respondent to the appellant, as indicated in paragraph supra.",
        "49260341": "REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1584 of 2021 (@SLP (CRL.) NO. 11816 OF 2019) JASDEEP SINGH @ JASSU \u2026APPELLANT(S) VERSUS STATE OF PUNJAB \u2026RESPONDENT(S) WITH CRIMINAL APPEAL NO.1585 OF 2021 (@SLP(CRL.) NO.11486/2019) CRIMINAL APPEAL NO.1586 OF 2021 (@SLP(CRL.) NO.3301/2020) JUDGMENT M.M. SUNDRESH, J. 1. Heard learned counsel appearing for the parties. 2. Crl. A. No.1584 of 2021 and Crl. A. No.1585 of 2021 are filed by convicted Appellants/Accused 3 and 4 respectively against conviction under Section Signature Not Verified 304 Part I of the Indian Penal Code (IPC) with life sentence, while Crl. A. Digitally signed by RASHI GUPTA Date: 2022.01.07 No.1586 of 2021 is filed by the de facto complainant seeking modification of 17:25:06 IST Reason: the conviction to the sentence punishable under Section 302 IPC. Thus, we shall deal with all the appeals by our common order, particularly, when they emanate and emerge from a common impugned order. BRIEF FACTS 3. Four accused persons were charged, convicted, and sentenced in the following manner: Name of convict Offence under Sentence Section Ramsimran Singh U/s 304 Part I IPC To undergo Makkar imprisonment for life and to pay fine of Rs.10,000/- and in default of payment of fine to undergo further RI for one year. U/s 25 Arms Act To undergo rigorous imprisonment for two years and to pay fine of Rs.2000/- and in default of payment of fine to undergo further RI for three months. U/s 27 Arms Act To undergo rigorous imprisonment for five years and to pay fine of Rs.5000/- and in default of payment of fine to undergo further RI for six months. Amardeep Singh U/s 304 Part I, read To undergo Sachdeva with Section 34 IPC imprisonment for life and to pay fine of Rs.10,000/- and in default of payment of \f fine to undergo further RI for one year. U/s 25 Arms Act To undergo rigorous imprisonment for two years and to pay fine of Rs.2000/- and in default of payment of fine to undergo further RI for three months. Jasdeep Singh U/s 304 Part I, read To undergo with Section 34 IPC imprisonment for life and to pay fine of Rs.10,000/- and in default of payment of fine to undergo further RI for one year. Amarpreet Singh U/s 304 Part I, read To undergo Narula with Section 34 IPC imprisonment for life and to pay fine of Rs.10,000/- and in default of payment of fine to undergo further RI for one year. 4. The occurrence took place at about 12:45 a.m. on 21.04.2011 in the area of Baba Rasoi Dhaba, Jalandhar. The motive for the occurrence was that the deceased felt that a raid conducted in the hotel belonging to him and his father (PW6), the Appellant in Crl. A. No.1586 of 2021, was done at the instance of the accused. All the accused are friends of each other. 5. PW6 went in search of the deceased on finding that he had not returned home, though he was in a habit of coming late. On a particular street, he saw the accused grappling with the deceased. It was seen by him in the street light. The occurrence was also witnessed by PW10 who incidentally was a friend of the deceased. PW13 spoke about the common intention on the part of the accused on the previous night to do away with the deceased. 6. In pursuance to the statement made by A3 and A4, saying \u201cwhat are you seeing now\u201d, A1 took out a gun from his pocket and shot the deceased. A2 took his gun and brandished it against the deceased, prior to the aforesaid statement made by A3 and A4, followed by the shooting by A1. A3 and A4 made the statement pointing to A1, though A2 was already having the gun out. It is only thereafter that A1 took out his gun and shot the deceased. 7. The deceased was taken to the hospital situated about 3 kms from the place of occurrence, notwithstanding the other hospitals nearby. PW23 helped PW6 and PW10 to carry the deceased into the car of PW6. Thereafter PW6 gave the complaint under Exhibit PL. In the complaint, he did not make any statement that A3 and A4 exhorted A1 to shoot, except the statement as referred earlier. However, in his additional statement given under Section 161 CrPC, he improved his version by stating that A3 and A4 instigated A1 to fire. We may note, A6 is a legally qualified person. 8. PW24 took up the investigation and completed the formalities. Recoveries have been made, including of the weapons. 9. Before the trial court, the prosecution examined 27 witnesses and marked documents in support of its case. On behalf of the defense, 16 witnesses have been examined along with the documents. 10.Before the trial court, PW10 and PW23 turned hostile. Upon hearing the counsel appearing for the parties a conviction has been rendered against all the accused for the offences punishable under Section 304 Part I IPC along with life sentence. The trial court reasoned that it is not as if the accused were waiting for the deceased. The deceased went nearer to the accused, as could be seen from the evidence of PW10 under Exhibit PF/1 and PQ. There was only one single shot. Though the deceased fell down the accused did not shoot him thereafter. There was indeed a quarrel preceding the occurrence. The evidence of PW13 was disbelieved with respect to prior concert. It was noted that he was a resident of a place 50 kms away from Jalandhar. The evidence adduced by his cousin (DW1) showed that he was not present at his house at Jalandhar and there was no reason for going to Jalandhar on 20.04.2011. The prosecution did not prove that that day was his birthday and there were other places available nearer to his residence. There was absolutely no material to hold that he knew the accused at any prior point of time. It would be improbable that the accused would make a plan to commit a murder in public, by addressing themselves by names while flaunting their weapons. Further, he did not make any complaint. The statement that he visited days thereafter to seek tires for his jeep was not believed as such tires could be obtained otherwise in a nearer place. 11.Accordingly, holding that there was no premeditation, and the occurrence took place in pursuance to a sudden fight, in a heat of passion, the case was brought under Exception 4 to Section 300 IPC. 12.Appeals were filed by all the parties. The High Court concurred with the views of the trial court. However, it did not specifically deal with the scope of Section 34 IPC as against A3 and A4 which was accordingly done by the trial court. We may also note that the trial court did an in-depth, exhaustive assessment, by considering almost all the material placed before it, including the statements made by the witnesses. 13.A3 and A4 are before us by filing their respective appeals seeking to overturn the judgment rendered by the High Court confirming the one by the trial court. Thus, A1 and A2 have not filed their appeals. We have been informed at the Bar, by the learned Senior Counsel appearing for the de facto complainant/Appellant in Crl. A. No.1586 of 2021 that A1 has since been let out on pre-mature release by the State. We do not wish to state anything on the role of A1 and A2 except to the extent of testing the decision of the High Court and the trial court as to whether the case would fall under Section 304 Part I or Section 302 IPC. Arguments on behalf of the Appellants 14.Since appeals have been filed both by the convicted Appellants and the de facto complainant, we would like to note the arguments of A3 and A4 first and thus the other appeal filed by de facto complainant would be taken along with the arguments of the State. 15.It is submitted by the learned counsel that the evidence of PW13 having been disbelieved, the courts have committed an error in applying Section 34 IPC. There is an improvement with respect to the statement made by PW6. A mere statement per se would not be sufficient to attract Section 34 IPC. It is strange that both of them made the same statement. The presence of PW6 is very doubtful. He had deposed that the deceased used to come late and there was no complaint whatsoever. If A2 brandished the gun before the deceased was shot by A1, it is only logical that A3 and A4 would have asked A2 to shoot first. Even the other eyewitness in PW10 has turned hostile and so also another material witness in PW23. Under those circumstances it is a fit case where the conviction rendered against A3 and A4 are to be set aside. Submission of the Respondents 16.The learned Senior Counsel appearing for the de facto complainant submitted that the accused are influential persons. The case would come under offense punishable under Section 302 IPC. The trial court has committed an error as confirmed by the High Court in bringing it under Section 299 IPC and therefore wrongly applied Section 304 Part I IPC. It is not necessary that an accused will have to do a physical act in order to attract Section 34 IPC. Thus, a mere presence of the accused would suffice. Hence, the appeal filed by the de facto complainant be allowed while dismissing the appeal filed by the Accused-Appellants. 17.The counsel appearing for the State submitted that cogent reasoning was given by the High Court. The trial court considered the entire material available on record. Recoveries made have been proved. Under those circumstances there is no need to interfere with the conviction and sentence. Section 34 IPC 18.We shall first go back into the history to understand Section 34 IPC as it stood at the inception and as it exists now. Old Section 34 of IPC New Section 34 of IPC \u201cWhen a criminal act is done by \u201cWhen a Criminal act is done by several persons, each of such several persons, in furtherance of the \f persons is liable for that act in common intention of all, each of such the same manner as if the act persons is liable for that act in the was done by him alone\u201d same manner as if it were by him alone\u201d 19.On a comparison, one could decipher that the phrase \u201cin furtherance of the common intention\u201d was added into the statute book subsequently. It was first coined by Chief Justice Barnes Peacock presiding over a Bench of the Calcutta High Court, while delivering its decision in Queen v. Gorachand Gope, (1866 SCC OnLine Cal 16) which would have probably inspired and hastened the amendment to Section 34 IPC, made in 1870. The following passage may lend credence to the aforesaid possible view: \u201cIt does not follow that, because they were present with the intention of taking him away, that they assisted by their presence in the beating of him to such an extent as to cause death. If the object and design of those who seized Amordi was merely to take him to the thannah on a charge of theft, and it was no part of the common design to beat him, they would not all be liable for the consequence of the beating merely because they were present. It is laid down that, when several persons are in company together engaged in one common purpose, lawful or unlawful, and one of them, without the knowledge or consent of the others, commits an offence, the others will not be involved in the guilt, unless the act done was in some manner in furtherance of the common intention. It is also said, although a man is present when a felony is committed, if he take no part in it, and do not act in concert with those who commit it, he will not be a principal merely because he did not endeavour to prevent it or to apprehend the felon. But if several persons go out together for the purpose of apprehending a man and taking him to the thannah on a charge of theft, and some of the party in the presence of the others beat and ill-treat the man in a cruel and violent manner, and the others stand by and look on without endeavouring to dissuade them from their cruel and violent conduct, it appears to me that those who have to deal with the facts might very properly infer that they were all assenting parties and acting in concert, and that the beating was in furtherance of a common design. I do not know what the evidence was, all that I wish to point out is, that all who are present do not necessarily assist by their presence every act that is done in their presence, nor are consequently liable to be punished as principals.\u201d 20. Before we deal further with Section 34 IPC, a peep at Section 33 IPC may give a better understanding. Section 33 IPC brings into its fold a series of acts as that of a single one. Therefore, in order to attract Section 34 to 39 IPC, a series of acts done by several persons would be related to a single act which constitutes a criminal offense. A similar meaning is also given to the word \u2018omission\u2019, meaning thereby, a series of omissions would also mean a single omission. This provision would thus make it clear that an act would mean and include other acts along with it. 21.Section 34 IPC creates a deeming fiction by infusing and importing a criminal act constituting an offence committed by one, into others, in pursuance to a common intention. Onus is on the prosecution to prove the common intention to the satisfaction of the court. The quality of evidence will have to be substantial, concrete, definite and clear. When a part of evidence produced by the prosecution to bring the accused within the fold of Section 34 IPC is disbelieved, the remaining part will have to be examined with adequate care and caution, as we are dealing with a case of vicarious liability fastened on the accused by treating him at par with the one who actually committed the offence. 22.What is required is the proof of common intention. Thus, there may be an offence without common intention, in which case Section 34 IPC does not get attracted. 23.It is a team effort akin to a game of football involving several positions manned by many, such as defender, mid-fielder, striker, and a keeper. A striker may hit the target, while a keeper may stop an attack. The consequence of the match, either a win or a loss, is borne by all the players, though they may have their distinct roles. A goal scored or saved may be the final act, but the result is what matters. As against the specific individuals who had impacted more, the result is shared between the players. The same logic is the foundation of Section 34 IPC which creates shared liability on those who shared the common intention to commit the crime. 24.The intendment of Section 34 IPC is to remove the difficulties in distinguishing the acts of individual members of a party, acting in furtherance of a common intention. There has to be a simultaneous conscious mind of the persons participating in the criminal action of bringing about a particular result. A common intention qua its existence is a question of fact and also requires an act \u201cin furtherance of the said intention\u201d. One need not search for a concrete evidence, as it is for the court to come to a conclusion on a cumulative assessment. It is only a rule of evidence and thus does not create any substantive offense. 25.Normally, in an offense committed physically, the presence of an accused charged under Section 34 IPC is required, especially in a case where the act attributed to the accused is one of instigation/exhortation. However, there are exceptions, in particular, when an offense consists of diverse acts done at different times and places. Therefore, it has to be seen on a case to case basis. 26.The word \u201cfurtherance\u201d indicates the existence of aid or assistance in producing an effect in future. Thus, it has to be construed as an advancement or promotion. 27.There may be cases where all acts, in general, would not come under the purview of Section 34 IPC, but only those done in furtherance of the common intention having adequate connectivity. When we speak of intention it has to be one of criminality with adequacy of knowledge of any existing fact necessary for the proposed offense. Such an intention is meant to assist, encourage, promote and facilitate the commission of a crime with the requisite knowledge as aforesaid. 28.The existence of common intention is obviously the duty of the prosecution to prove. However, a court has to analyse and assess the evidence before implicating a person under Section 34 IPC. A mere common intention per se may not attract Section 34 IPC, sans an action in furtherance. There may also be cases where a person despite being an active participant in forming a common intention to commit a crime, may actually withdraw from it later. Of course, this is also one of the facts for the consideration of the court. Further, the fact that all accused charged with an offence read with Section 34 IPC are present at the commission of the crime, without dissuading themselves or others might well be a relevant circumstance, provided a prior common intention is duly proved. Once again, this is an aspect which is required to be looked into by the court on the evidence placed before it. It may not be required on the part of the defence to specifically raise such a plea in a case where adequate evidence is available before the court. 29.The essence and scope of Section 34 IPC can be borne out of excerpts from the following judgements: Suresh v State of U.P. ((2001) 3 SCC 673): \u201c24. Looking at the first postulate pointed out above, the accused who is to be fastened with liability on the strength of Section 34 IPC should have done some act which has nexus with the offence. Such an act need not be very substantial, it is enough that the act is only for guarding the scene for facilitating the crime. The act need not necessarily be overt, even if it is only a covert act it is enough, provided such a covert act is proved to have been done by the co-accused in furtherance of the common intention. Even an omission can, in certain circumstances, amount to an act. This is the purport of Section 32 IPC. So, the act mentioned in Section 34 IPC need not be an overt act, even an illegal omission to do a certain act in a certain situation can amount to an act, e.g. a co-accused, standing near the victim face to face saw an armed assailant nearing the victim from behind with a weapon to inflict a blow. The co-accused, who could have alerted the victim to move away to escape from the onslaught deliberately refrained from doing so with the idea that the blow should fall on the victim. Such omission can also be termed as an act in a given situation. Hence an act, whether overt or covert, is indispensable to be done by a co-accused to be fastened with the liability under the section. But if no such act is done by a person, even if he has common intention with the others for the accomplishment of the crime, Section 34 IPC cannot be invoked for convicting that person. In other words, the accused who only keeps the common intention in his mind, but does not do any act at the scene, cannot be convicted with the aid of Section 34 IPC. xxx xxx xxx 40. Participation in the crime in furtherance of the common intention cannot conceive of some independent criminal act by all accused persons, besides the ultimate criminal act because for that individual act law takes care of making such accused responsible under the other provisions of the Code. The word \u201cact\u201d used in Section 34 denotes a series of acts as a single act. What is required under law is that the accused persons sharing the common intention must be physically present at the scene of occurrence and be shown not to have dissuaded themselves from the intended criminal act for which they shared the common intention. Culpability under Section 34 cannot be excluded by mere distance from the scene of occurrence. The presumption of constructive intention, however, has to be arrived at only when the court can, with judicial servitude, hold that the accused must have preconceived the result that ensued in furtherance of the common intention. A Division Bench of the Patna High Court in Satrughan Patar v. Emperor, AIR 1919 Pat 111 held that it is only when a court with some certainty holds that a particular accused must have preconceived or premeditated the result which ensued or acted in concert with others in order to bring about that result, that Section 34 may be applied.\u201d Lallan Rai v. State of Bihar, [(2003) 1 SCC 268]: \u201c22. The above discussion in fine thus culminates to the effect that the requirement of statute is sharing the common intention upon being present at the place of occurrence. Mere distancing himself from the scene cannot absolve the accused \u2014 though the same however depends upon the fact situation of the matter under consideration and no rule steadfast can be laid down therefor.\u201d Chhota Ahirwar v. State of M.P., [(2020) 4 SCC 126]: \u201c24. Section 34 is only attracted when a specific criminal act is done by several persons in furtherance of the common intention of all, in which case all the offenders are liable for that criminal act in the same manner as the principal offender as if the act were done by all the offenders. This section does not whittle down the liability of the principal offender committing the principal act but additionally makes all other offenders liable. The essence of liability under Section 34 is simultaneous consensus of the minds of persons participating in the criminal act to bring about a particular result, which consensus can even be developed at the spot as held in Lallan Rai v. State of Bihar, (2003) 1 SCC 268. There must be a common intention to commit the particular offence. To constitute common intention, it is absolutely necessary that the intention of each one of the accused should be known to the rest of the accused.\u201d Barendra Kumar Ghosh v. King Emperor (AIR 1925 PC 1): \"...... the words of S. 34 are not to be eviscerated by reading them in this exceedingly limited sense. By S. 33 a criminal act in S. 34 includes a series of acts and, further, \u201cact\u201d includes omissions to act, for example, an omission to interfere in order to prevent a murder being done before one's very eyes. By S. 37, when any offence is committed by means of several acts whoever intentionally co-operates in the commission of that offence by doing any one of those acts, either singly or jointly with any other person, commits that offence. Even if the appellant did nothing as he stood outside the door, it is to be remembered that in crimes as in other things \u201cthey also serve who only stand and wait\u201d. By S. 38, when several persons are engaged or concerned in the commission of a criminal act, they may be guilty of different offences by means of that act. Read together, these sections are reasonably plain. S. 34 deals with the doing of separate acts, similar or diverse, by several persons; if all are done in furtherance of a common intention, each person is liable for the result of them all, as if he had done them himself, for \u201cthat act\u201d and \u201cthe act\u201d in the latter part of the section must include the whole action covered by 'a criminal act' in the first part, because they refer to it. S. 37 provides that, when several acts are done so as to result together in the commission of an offence, the doing of any one of them, with an intention to co-operate in the offence (which may not be the same as an intention common to all), makes the actor liable to be punished for the commission of the offence. S. 38 provides for different punishments for different offences as an alternative to one punishment for one offence, whether the persons engaged or concerned in the commission of a criminal act are set in motion by the one intention or by the other.\" Mehbub Shah v. Emperor (AIR 1945 PC 148): \"....Section 34 lays down a principle of joint liability in the doing of a criminal act. The section does not say \"the common intentions of all\" nor does it say \"an intention common to all.\u201d Under the section, the essence of that liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. To invoke the aid of S. 34 successfully, it must be shown that the criminal act complained against was done by one of the accused persons in the furtherance of the common intention of all; if this is shown, then liability for the crime may be imposed on any one of the persons in the same manner as if the act were done by him alone. This being the principle, it is clear to their Lordships that common intention within the meaning of the section implies a pre-arranged plan, and to convict the accused of an offence applying the section it should be proved that the criminal act was done in concert pursuant to the pre- arranged plan\u2026\" Rambilas Singh & Ors. v. State of Bihar [(1989) 3 SCC 605]: \"7\u2026It is true that in order to convict persons vicariously under section 34 or section 149 IPC, it is not necessary to prove that each and every one of them had indulged in overt acts. Even so, there must be material to show that the overt act or acts of one or more of the accused was or were done in furtherance of the common intention of all the accused or in prosecution of the common object of the members of the unlawful assembly\u2026\" Krishnan & Another v. State of Kerala [(1996) 10 SCC 508]: \"15. Question is whether it is obligatory on the part of the prosecution to establish commission of overt act to press into service section 34 of the Penal Code. It is no doubt true that court likes to know about overt act to decide whether the concerned person had shared the common intention in question. Question is whether overt act has always to be established? I am of the view that establishment of an overt act is not a requirement of law to allow section 34 to operate inasmuch this section gets attracted when \"a criminal act is done by several persons in furtherance of common intention of all\". What has to be, therefore, established by the prosecution is that all the concerned persons had shared the common intention. Court's mind regarding the sharing of common intention gets satisfied when overt act is established qua each of the accused. But then, there may be a case where the proved facts would themselves speak of sharing of common intention: res ipsa loquitur.\" Surendra Chauhan v. State of M.P. [(2000) 4 SCC 110]: \"11. Under Section 34 a person must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture\u2026.\u201d Gopi Nath @ Jhallar v. State of U.P. [(2001) 6 SCC 620]: \u201c8. \u2026As for the challenge made to the conviction under Section 302 read with Section 23 IPC, it is necessary to advert to the salient principles to be kept into consideration and often reiterated by this Court, in the matter of invoking the aid of Section 34 IPC, before dealing with the factual aspect of the claim made on behalf of the appellant. Section 34 IPC has been held to lay down the rule of joint responsibility for criminal acts performed by plurality or persons who joined together in doing the criminal act, provided that such commission is in furtherance of the common intention of all of them. Even the doing of separate, similar or diverse acts by several persons, so long as they are done in furtherance of a common intention, render each of such persons liable for the result of them all, as if he had done them himself, for the whole of the criminal action \u2013 be it that it was not overt or was only covert act or merely an omission constituting an illegal omission. The section, therefore, has been held to be attracted even where the acts committed by the different confederates are different when it is established in one way or the other that all of them participated and engaged themselves in furtherance of the common intention which might be of a pre-concerted or pre-arranged plan or one manifested or developed at the spur of the moment in the course of the commission of the offence. The common intention or the intention of the individual concerned in furtherance of the common intention could be proved either from direct evidence or by inference from the acts or attending circumstances of the case and conduct of the parties. The ultimate decision, at any rate, would invariably depend upon the inferences deducible from the circumstances of each case.\u201d Ramesh Singh @ Photti v. State of A.P. [(2004) 11 SCC 305]: \"12. \u2026As a general principle in a case of criminal liability it is the primary responsibility of the person who actually commits the offence and only that person who has committed the crime can be held guilty. By introducing Section 34 in the Penal Code the legislature laid down the principle of joint liability in doing a criminal act. The essence of that liability is to be found in the existence of a common intention connecting the accused leading to the doing of a criminal act in furtherance of such intention. Thus, if the act is the result of a common intention, then every person who did the criminal act with that common intention would be responsible for the offence committed irrespective of the share which he had in its perpetration.......... \" Nand Kishore V. State Of Madhya Pradesh [(2011) 12 SCC 120)]: \u201c20. A bare reading of this section shows that the section could be dissected as follows: (a) Criminal act is done by several persons; (b) Such act is done in furtherance of the common intention of all; and (c) Each of such persons is liable for that act in the same manner as if it were done by him alone. In other words, these three ingredients would guide the court in determining whether an accused is liable to be convicted with the aid of Section 34. While first two are the acts which are attributable and have to be proved as actions of the accused, the third is the consequence. Once the criminal act and common intention are proved, then by fiction of law, criminal liability of having done that act by each person individually would arise. The criminal act, according to Section 34 IPC must be done by several persons. The emphasis in this part of the section is on the word \u201cdone\u201d. It only flows from this that before a person can be convicted by following the provisions of Section 34, that person must have done something along with other persons. Some individual participation in the commission of the criminal act would be the requirement. Every individual member of the entire group charged with the aid of Section 34 must, therefore, be a participant in the joint act which is the result of their combined activity. 21. Under Section 34, every individual offender is associated with the criminal act which constitutes the offence both physically as well as mentally i.e. he is a participant not only in what has been described as a common act but also what is termed as the common intention and, therefore, in both these respects his individual role is put into serious jeopardy although this individual role might be a part of a common scheme in which others have also joined him and played a role that is similar or different. But referring to the common intention, it needs to be clarified that the courts must keep in mind the fine distinction between \u201ccommon intention\u201d on the one hand and \u201cmens rea\u201d as understood in criminal jurisprudence on the other. Common intention is not alike or identical to mens rea. The latter may be coincidental with or collateral to the former but they are distinct and different. 22. Section 34 also deals with constructive criminal liability. It provides that where a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it was done by him alone. If the common intention leads to the commission of the criminal offence charged, each one of the persons sharing the common intention is constructively liable for the criminal act done by one of them. (Refer to Brathi v. State of Punjab 1991 (1) SCC 519). 23. Another aspect which the court has to keep in mind while dealing with such cases is that the common intention or state of mind and the physical act, both may be arrived at the spot and essentially may not be the result of any predetermined plan to commit such an offence. This will always depend on the facts and circumstances of the case\u2026\u201d Shyamal Ghosh V. State of West Bengal [(2012) 7 SCC 646)]: \u201c87. Upon analysis of the above judgments and in particular the judgment of this Court in the case of Dharnidhar v. State of Uttar Pradesh, [(2010) 7 SCC 759], it is clear that Section 34 IPC applies where two or more accused are present and two factors must be established i.e. common intention and participation of the accused in the crime. Section 34 IPC, moreover, involves vicarious liability and therefore, if the intention is proved but no overt act was committed, the section can still be invoked. This provision carves out an exception from general law that a person is responsible for his own act, as it provides that a person can also be held vicariously responsible for the act of others, if he had the common intention to commit the act. The phrase \u201ccommon intention\u201d means a pre-oriented plan and acting in pursuance to the plan, thus, common intention must exist prior to the commission of the act in a point of time. The common intention to give effect to a particular act may even develop on the spur of moment between a number of persons with reference to the facts of a given case.\" 30. The aforesaid principle has also been dealt with in extenso by the Apex Court in Virendra Singh V. State of Madhya Pradesh ((2010) 8 SCC 407) through the following paragraphs: \"15. Ordinarily, a person is responsible for his own act. A person can also be vicariously responsible for the acts of others if he had the common intention to commit the offence. The words \"common intention\" implies a prearranged plan and acting in concert pursuant to the plan. It must be proved that the criminal act was done in concert pursuant to the prearranged plan. Common intention comes into force prior to the commission of the act in point of time, which need not be a long gap. Under this section a pre-concert in the sense of a distinct previous plan is not necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation. Though common intention may develop on the spot, it must, however, be anterior in point of time to the commission of the crime showing a prearranged plan and prior concert. The common intention may develop in course of the fight but there must be clear and unimpeachable evidence to justify that inference. This has been clearly laid down by this Court in the case of Amrik Singh & Ors. v. State of Punjab, 1972 (4) SCC (N) 42:1972 CriLJ 465. 16. The essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. Undoubtedly, it is difficult to prove even the intention of an individual and, therefore, it is all the more difficult to show the common intention of a group of persons. Therefore, in order to find whether a person is guilty of common intention, it is absolutely necessary to carefully and critically examine the entire evidence on record. The common intention can be spelt out only from the evidence on record. 17. Section 34 is not a substantive offence. It is imperative that before a man can be held liable for acts done by another under the provisions of this section, it must be established that there was common intention in the sense of a prearranged plan between the two and the person sought to be so held liable had participated in some manner in the act constituting the offence. Unless common intention and participation are both present, this section cannot apply. xxx xxx xxx 36. Referring to the facts of this case, the short question which arises for adjudication in this appeal is whether the appellant Virendra Singh can be convicted under section 302 with the aid of section 34 IPC. Under the Penal Code, the persons who are connected with the preparation of a crime are divided into two categories: (1) those who actually commit the crime i.e. principals in the first degree; and (2) those who aid in the actual commission i.e. principals in the second degree. The law does not make any distinction with regard to the punishment of such persons, all being liable to be punished alike. 37. Under the Penal Code, a person is responsible for his own act. A person can also be vicariously responsible for the acts of others if he had a common intention to commit the acts or if the offence is committed by any member of the unlawful assembly in prosecution of the common object of that assembly, then also he can be vicariously responsible. Under the Penal Code, two sections, namely, Sections 34 and 149, deal with them circumstances when a person is vicariously responsible for the acts of others. 38. The vicarious or constructive liability under Section 34 IPC can arise only when two conditions stand fulfilled i.e. the mental element or the intention to commit the criminal act conjointly with another or others; and the other is the actual participation in one form or the other in the commission of the crime. 39. The common intention postulates the existence of a prearranged plan implying a prior meeting of the minds. It is the intention to commit the crime and the accused can be convicted only if such an intention has been shared by all the accused. Such a common intention should be anterior in point of time to the commission of the crime, but may also develop on the spot when such a crime is committed. In most of the cases it is difficult to procure direct evidence of such intention. In most of the cases, it can be inferred from the acts or conduct of the accused and other relevant circumstances. Therefore, in inferring the common intention under section 34 IPC, the evidence and documents on record acquire a great significance and they have to be very carefully scrutinized by the court. This is particularly important in cases where evidence regarding development of the common intention to commit the offence graver than the one originally designed, during execution of the original plan, should be clear and cogent. 40. The dominant feature of Section 34 is the element of intention and participation in action. This participation need not in all cases be by physical presence. Common intention implies acting in concert. 41. The essence of Section 34 IPC is a simultaneous consensus of the minds of the persons participating in criminal action to bring about a particular result. Russell in his celebrated book Russell on Crime, 12th Edn., Vol. 1 indicates some kind of aid or assistance producing an effect in future and adds that any act may be regarded as done in furtherance of the ultimate felony if it is a step intentionally taken for the purpose of effecting that felony. It was observed by Russell that any act of preparation for the commission of felony is done in furtherance of the act. 42. Section 34 IPC does not create any distinct offence, but it lays down the principle of constructive liability. Section 34 IPC stipulates that the act must have been done in furtherance of the common intention. In order to incur joint liability for an offence there must be a prearranged and premeditated concert between the accused persons for doing the act actually done, though there might not be long interval between the act and the premeditation and though the plan may be formed suddenly. In order that Section 34 IPC may apply, it is not necessary that the prosecution must prove that the act was done by a particular or a specified person. In fact, the section is intended to cover a case where a number of persons act together and on the facts of the case it is not possible for the prosecution to prove as to which of the persons who acted together actually committed the crime. Little or no distinction exists between a charge for an offence under a particular section and a charge under that section read with section 34.\" On merit 31.Having understood Section 34 IPC, we shall now deal with the case on hand. 32.The evidence of PW13 did not find favour with the courts. The trial court which had the advantage of noting the deposition of the witnesses, chose to disbelieve the evidence adduced, by giving cogent reasons. This evidence was rightly eschewed by the trial court and also by the High Court. There are too many improbabilities in the testimony of PW13. A person who was living 50 kms away remembered the accused and their names and overheard their plot to commit the murder. His evidence was belied by the evidence of DW1 who was none other than his own cousin with whom he was said to be residing at the relevant point of time. 33.The other material witnesses are PW6 and PW10. PW10 had given prior statements. Though he turned hostile despite being a friend of the deceased, the trial court did take into consideration his earlier statement, while coming to the conclusion that there was no premeditation and thus the case would fall under culpable homicide not murder. Though the evidence of PW6 was not rejected, both the courts did find a clear exaggeration on his part. On many occasions PW6 made a concerted effort to improve the case of prosecution. The testimony given by him on the dying declaration, a case inserted by him in his supplementary statement, made subsequently, was also rightly rejected by the courts. This was also supported by the medical evidence. The other part of the evidence with respect to the fight was also dealt with by the courts as evidence available would suggest that it is the deceased who went nearer, and the accused were not stationing themselves waiting for his arrival. Therefore, the aforesaid findings of both the courts in coming to the conclusion that it is not a case which would attract punishment under Section 301 Part I IPC does not suffer from any perversity. In view of the above Crl. A. No.1586 of 2021 stands dismissed. At this stage we also hasten to add that the overt act of A2 being different and in the absence of any appeal filed by him, we do not wish to make any remark for the purpose of acquitting him. 34. The only other issue for consideration is the application of Section 34 IPC to the case of the Appellants. The occurrence was admittedly during the nighttime. It happened on the street. If A3 and A4 had made such a statement in the same voice, they should have addressed A2 instead of A1. A2 was already having a gun and A1 was stated to have taken his gun out only on the statement made by A3 and A4. The reasoning of the trial court in disbelieving the evidence of PW6 as he improved on his case subsequently, ought to be applied for the statement made that A3 and A4 had asked A1 to fire. Admittedly, this was an improvement to the earlier statement made as could be seen from the evidence of PW6 on more than one occasion. Thus, in our considered view both the courts ought to have disbelieved the evidence of PW6 insofar as Section 34 IPC is concerned. There is no evidence at all on record to hold that A3 and A4 were aware of the fact that A1 was having a gun with him. The prosecution wanted to implicate A3 and A4 mainly on the evidence of PW13. Once the said evidence was not accepted, more care ought to have been taken before convicting A3 and A4 under Section 34 IPC. We have no difficulty in holding that a common intention can be formed at the time of the occurrence. However, the evidence available is not sufficient enough to hold that Section 34 IPC is attracted as against A3 and A4, especially when the testimony of PW13 did not find favour with the courts. We further note that except the statement said to have been made by A3 and A4, there was no other material to implicate them. 35. Now, we shall come to the statements. The statement made by A3 and A4 is as follows: \u201cwhat are you seeing now\u201d. The question is as to whether the said statement would constitute an offense punishable under Section 304 Part I IPC. We have already noted the fact that had A2 fired at the deceased in pursuance to the statement made by A3 and A4 the situation would have been different. It is possible that the said statement has been made only to attack otherwise the deceased. Suffice it is to hold that the prosecution has not proved its case beyond reasonable doubt as against A3 and A4 by reflecting the offence committed by A1, taking umbrage under Section 34 IPC. 36. The High Court did not even consider the import of Section 34 IPC as against A3 and A4. We find that the approach of the trial court cannot be sustained to that extent in the light of our discussion. Thus, we are inclined to set aside the judgment of the High Court confirming that of the trial court as against the Accused-Appellants namely A3 and A4 alone are concerned. 37. In the result Crl. A. No.1584 of 2021 and Crl. A. No.1585 of 2021 are allowed. The Crl. A. No.1586 of 2021 stands dismissed. \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026J. (SANJAY KISHAN KAUL) \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026J. (M.M. SUNDRESH) New Delhi, January 07, 2022",
        "1890994": "CASE NO.: Appeal (civil) 8605 of 2002 PETITIONER: BANNARI AMMAN SUGARS LTD. RESPONDENT: COMMERCIAL TAX OFFICER AND ORS. DATE OF JUDGMENT: 22/11/2004 BENCH: ARIJIT PASAYAT & C.K. THAKKER JUDGMENT: JUDGMENT 2004 Supp(6) SCR 264 The Judgment of the Court was delivered by ARIJIT PASAYAT, J. : These two appeals involve identical questions and, therefore, are disposed of by this common judgment after noticing the factual position, so far as they are relevant. The appellants question correctness of the judgment rendered by a Division Bench of the Madras High Court which held that the withdrawal of benefits extended to the appellants as subsidy was in order. The appellants questioned legality or the G.O.Ms No. 989 dated 1.9.1988 directing discontinuance of purchase tax exemption in case of mills which exceeded the ceiling of Rs. 300 lakhs during the period of five years, and Government letter dated 28.12.1988 which made the aforesaid G.O. Ms. No. 989 of 1.9.1988 operative retrospectively from 1.4.1988. Initially the writ petitions were filed before the High Court, but after constitution of the Tamil Nadu Taxation Special Tribunal (hereinafter referred to as the 'Tribunal') the writ petitions were transferred to the Tribunal which held that on application of the principles of promissory estoppel and legitimate expectation, the withdrawal of benefit was not sustainable in law. The State questioned correctness of the judgment before the High Court which, as noted above, held the G.O.Ms, and the Govt. letter to be valid, reversing the conclusions arrived at by the Tribunal. The judgment forms subject matter of challenge in these appeals. In support of the appeals the primary stands raised by the appellants are : 1. The doctrines of promissory estoppel and legitimate expectation were applicable to the facts of the case. There was no material to show existence of any overriding public interest to rule out application of the aforesaid doctrine there was no scope for retrospective withdrawal. In any event, before withdrawal of the benefits, no opportunity of hearing was granted. The High Court erroneously came to hold that the State Government had not filed any counter. The materials which were produced before the High Court and on the basis of which it is decided that the decision of the Government is in order were not even pleaded in the pleadings and during arguments. The appellants were taken by surprise by production of materials which were not even disclosed to the appellants. The contents of the files which were produced before the High Court and on which reliance was placed to hold against the appellants are not known to the appellants. In other words, there was clear violation of the principles of natural justice. The Government's letter dated 28.12.1988 refers to some decision, but in the absence of any authentication as required under Article 166 of the Constitution of India, 1950 (in short the 'Constitution') the same is ineffective. In any event, the retrospective withdrawal of the benefit on the basis of an executive decision is impermissible. In response, learned counsel for the respondent-State submitted that the appellants have failed to adduce any evidence or material to show that were in any way induced by any governmental action to set up industries. In fact, the Government of Tamil Nadu vide G.O.Ms. No. 1294 dated 24.10.1975 granted exemption from purchase tax on sugarcane in favour of sugar mills established in \"co-operative and public sectors\" in the form of annual subsidy equivalent to purchase tax on sugarcane. There was no scope for any mis-understanding that it applied to any private sector participation in the sphere of sugar manufacturing. The commercial productions were started in case of appellants in C.A. No. 8606/2002 i.e. Ponni Sugars (Erode) Ltd. v. Govt. of Tamil Nadu & Ors., on 27.1.1984 and in C.A. 8605/ 2002 i.e. Bannari Amman Sugars Ltd v. Commercial Tax Officer & Ors. on 22.1.1986. The appellants only made representation to Government subsequently claiming exemption at par with the cooperative and public sector mills. As there was no inducement or assurance, the question of any promissory estoppel did not arise. So far as legitimate expectation aspect is concerned, it is too well known that the benefit extended can be withdrawn and with this knowledge if the units are set up, the principle of legitimate expectation does not apply. The High Court recorded the following findings on the factual aspects. (1) The respondents have established their units prior to the Government orders granting the subsidy and they have no vested right to claim exemption. (2) No inducement was made in the Government orders to establish the units. (3) The respondents have not acted on the basis of the Government Orders for establishing the units. (4) The grant of subsidy is a concession and the Government has got good reasons for modifying the scheme in public interest. (5) No prejudice is caused to the respondents since the scheme was interested to make the units viable and the modified scheme provides for safeguards to that extent. (6) The Order granting subsidy can be withdrawn in public interest. The Government has exercised their right to modify the scheme in the interest of public revenue. The stand taken by the present appellants before the Tribunal and the High Court was rejected. With reference to the files produced, certain factual conclusions were arrived at, the correctness of those form the core challenge in these appeals. Estoppel is a rule of equity which has gained new dismensions 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 Investiment Trust Ltd., [1972] 1 SCC 857. Doctrine of \"Promissory Estoppel\" has been envolved by the courts, on the principles of equity, to avoid injustice. \"Promissory Estoppel\" is defined in Black's Law Distionary as \"an estoppel which arises when there is a promise which promissor should reasonable expect to induce action or forbearance of a definite and substantial character on the part of promisee, and which does include 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 is 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 to claim 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 Indian Ltd., [1985] 4 SCC 369 and Dr. Ashok Kumar Maheshwari v. State of U.P. & Another, (1998) 2 Supreme 100]. 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 Jurists, 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 nether 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 Aencies 's case (supra) and Sharma Transport Represented by D.P. Sharma v. Government of A.P. and Others, [2002] 2 SCC 188. No vested right as to tax holding is acquired by a person who is granted concession. If any concession has been given it can be withdrawn at any time and no time limit should be insisted upon before it was withdrawn. The rule of promissory estoppel can be invoked only if on the basis of representation made by the Government, the industry was established to avail benefit if of exemption. In Kasinka Trading and Anr. v. Union of India and Anr., [1995] 1 SCC 274 it was held that the doctrine of promissory estoppel represents a principle evolved by equity to avoid injustice. A person may have a 'legitimate expectation' of being treated in a certain way by an administrative athority even though he has no legal right in private law to receive such treatment. The expectation may arise either from a representation or promise made by the authority, including an implied representation, or from consistent past practice. The doctrine of legitimate expectation has an important place in the developing law of judicial review. It is, however, not necessary to explore the doctrine in this case, it is enough merely to note that a legitimate expectation can provide a sufficient interest to enable one who cannot point to the existence of a substantive right to obtain the leave of the court to apply for judicial review. It is generally agreed that 'legitimate expectation' gives the applicant sufficient locus standi for judicial review and that the doctrine of legitimate expectation to be confined mostly to right to a fair hearing before a decision which results in negativing a promise or withdrawing an undertaking is taken. The doctrine does not give scope to claim relief straightway from the administrative authorities as no crystallized right as such involved. The protection of such legitimate expectation does not require the fulfilment of the expectation where an overriding public interest requires otherwise. In other words, where a person's legitimate expectation in not fulfilled by taking a particular decision then decision maker should justify the denial of such expectation by showing some overriding public interest. (See Union of India and Others. v. Hindustan Development Corporation and Others, AIR (1994) SC 998). While the discretion to change the policy in exercise of the executive power, when not trammelled by any statute or rule is wide enough, what is imperative and implicit in terms of Article 14 is that a change in policy must be made fairly and should not give impression that it was so done arbitrarily or by any ulterior criteria. The wide sweep of Article 14 and the requirement of every State action qualifying for its validity on this touchstone irrespective of the field of activity of the State is an accepted tenet. The basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heart beat of fair play. Actions are amenable, in the panorama of judicial review only to the extent that the State must act validity for discernible reasons, not whimsically for any ulterior purpose. The meaning and true import and concept of arbitrariness is more easily visualized than precisely defined. A question whether the impugned action is arbitrary or not is to be ultimately answered on the facts and circumstances of a given case. A basic and obvious test to apply in such cases is to see whether there is any discernible principle emerging from the impugned action and if so, does if really satisfy the test of reasonableness. 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 small 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. 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. 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. In Hindustan Development Corporation's case (supra), 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. As was observed in Punjab Communications Ltd. v. Union of India of 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 police 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. 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 of 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. 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. Reasonableness of restriction is to be determined in an objective manner and from the standpoint of interest of the general public and not from the standpoint of the interests of persons upon whom the restrictions have been imposed or upon abstract consideration. A restriction cannot be said to be unreasonable merely because in a given case, it operates harshly. In determining whether there is any unfairness involved the nature of the right alleged to have taken infringed, the underlying purpose of the restriction imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing condition at the relevant time enter into judicial verdict, the reasonableness of the legitimate expectation has to be determined with respect to the circumstances relating to the trade or business in question. Canalisation of a particular business in favour of even a specified individual is reasonable where the interests of the country are concerned or where the business affects the economy of the country. (See Parbhani Transport Co-operative Society Ltd. v. Regional Transport Authority, Aurangabad and Others, AIR (1960) SC 901; Shree Meenakshi Mills Ltd. v. Union of India, AIR (1974) SC 365; Hari Chand Sarda v. Mizo District Council and Another, AIR (1967) SC 829; Krishnan Kakkanth v. Government of Kerala and Others, AIR (1997) SC 128 and Union of India and Another v. International Trading Co. and Another, [2003] 5 SCC 437. 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 allocating 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.\" Clause (1) requires that all executive action of the State Government shall have to be taken in the name of the Governor. Further 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) 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. 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 and doctrine the 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 for ever be present in the mind of the Court. In Shrijee Sales Corporation and Anr. v. Union of India, [1997] 3 SCC 398 it was observed that once public interest is accepted as the superior equity which can override individual equity the principle would be applicable even in cases where a period has been indicated for operation of the promise. If there is a supervening public equity, the Government would be allowed to change its stand and has the power to withdraw from representation made by it which induced persons to take certain steps which may have gone adverse to the interest of such persons on account of such withdrawal. Moreover, the Government is competent to rescind from the promise even if there is no manifest public interest involved, provided no one is put in any adverse situation which cannot be rectified. Similar view was expressed in M/s. Pawan Alloys and Casting Pvt. Ltd. Meerut Etc. Etc. v. U.P. State Electricity Board and Others, AIR (1997) SC 3910 and in Sales Tax Officers and Anr. v. Shree Durga Oil Mills and Anr., [1999] 1 SCC 573, it was further held that the Government could change its industrial policy if the situation so warranted and merely because the resolution was announced for a particular period, it did not mean that the government could not amend and change the policy under any circumstances. If the party claiming application of the doctrine acted on the basis of a notification it should have known that such notification was liable to be amended or rescinded at any point of time, if the government felt that it was necessary to do so in public interest. In view of the factual position recorded by the High Court that at the point of time the appellants' units were set up and the commercial production started there was no assurance or promise. The doctrine of promissory estoppel had no application to the facts of the case at that stage. We find no substance in the plea that before a policy decision is taken to amend or alter the promise indicated in any particular notification, the beneficiary was to be granted an opportunity of hearing. Such a plea is clearly unsustainable. While taking policy decision, the government is not required to hear the persons who have been granted the benefit which is sought to be withdrawn. The question of legitimate expectation arises according to the appellants after the benefits were granted by the concerned G.O.Ms. At this juncture we would like to take note to certain factual positions highlighted by the appellants which are practically undisputed by the respondents. Contrary to what the High Court has stated, it appears from record that counter affidavits were filed. The reasons which have weighed with the High Court to uphold the action of the State were not pleaded before the High Court specifically, and the High Court cull out those from the files which were produced before it. Though the appellants were not entitled to any opportunity of hearing before alteration of the benefits flowing from the notifications or withdrawal of any benefit, yet when the State has not taken any specific stand justifying the withdrawal and the High Court referred to the files to put its seal of proof, notwithstanding non- requirement for granting any opportunity before the withdrawal, principles of natural justice certainly were applicable, since the High Court with reference to the files recorded findings on the basis thereof. As noted above no specific grounds or reasons were indicated to justify the withdrawal in the affidavits filed before the Tribunal or the High Court, as the case may be. As the correctness of factual basis justifying withdrawal is in issue, fair play certainly warranted grant of opportunity to the appellants to present its side of the picture. Further, a definite plea was taken that there was no scope for retrospective withdrawal of benefit by an executive order. The High Court has not dealt with the issue. The same also needs to be examined. Above being the position, decision of the High Court by placing reliance on the files to hold that the withdrawal was justified, is not tenable in law and in the fitness of things, the High Court should hear the matter afresh and taken decision on those two issues. It is made clear that we have not expressed any opinion on those issues on the facts of the present case. It is to be noted that no privilege was claimed from production of the file as the files were produced before the High Court and in fact the High Court referred to the materials on the files to affirm State's action. We direct that the State Government, if it so chooses, shall file its further counter-affidavits before the High Court within six weeks from today indicating the reasons which warranted the withdrawal of the benefits extended. The plea of the appellants regarding legitimate expectation shall be considered by the High Court in the light of materials to be placed by the respondents by affidavits as directed above. We make it clear that we have not expressed any opinion on the factual aspects except indicating the principles underlying legitimate expectation. Another point which was specifically raised before the High Court but has not been dealt by it is the legality of the action in directing retrospective withdrawal of the benefit by a letter of the Government. Whether the same is permissible in law has to be decided by the High Court. To the aforesaid limited extent, the matter is remitted to the High Court for fresh consideration. The appeals are disposed of accordingly without any order as to costs.",
        "199441852": "W.P.No.11774 of 2014 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.11.2020 CORAM THE HONOURABLE MR. JUSTICE M.DHANDAPANI W.P.No.11774 of 2014 M.Suresh ... Petitioner vs. 1. The Union of India, rep. by its Secretary to Government, Ministry of Home Affairs, New Delhi. 2. The Director General, Central Industrial Security Force, CGO Complex, Lodhi Road, New Delhi \u2013 110 003. 3. The Inspector General, Central Industrial Security Force, Hyderabad. 4. The Deputy Inspector General, Central Industrial Security Force, Recruitment Training Centre, Arakkonam, Suraksha Campus Post, Vellore District. 5. The Senior Commandant, Central Industrial Security Force, Recruitment Training Centre, Arakkonam, Suraksha Campus Post, Vellore District. ... Respondents Page No.1 of 17 \f W.P.No.11774 of 2014 Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus, calling for the records relating to the order passed by the 3rd Respondent dated 10.02.2014 in his order No.11014/T.S./Disc.Rev-Suresh/359/2014/769, confirming the order of the 4th Respondent dated 28.10.2013 in his order No.V-15014/CISF/RTC (A) Disc/Maj/S/2013/4634 confirming the order of the 5th Respondent dated 13.09.2013 in his final order No.V-15014/CISF/RTC (A) Disc/Maj/S/2013/4025 and quash the same and to direct the Respondents to pay all benefits. For Petitioner : Mr.R.Thiyagarajan For Respondents 1 to 3 : Mr.J.Madhana Gopal Rao, Sr. Central Govt. Standing Counsel For Respondents 4 & 5 : Mrs.R.Mageswari ORDER Petitioner has come up with this Writ Petition seeking to quash the order dated 10.02.2014 passed by the 3rd Respondent, confirming the order dated 28.10.2013 passed by the 4th Respondent, confirming the order dated 13.09.2013 passed by the 5th Respondent and for a direction to the Respondents to pay him all benefits. 2. According to the Petitioner, he joined as a Constable in Central Industrial Security Force (CISF) on 03.09.2006. He was transferred from MBR (KBR) CISF Unit, Jharkahand to NDRF Battalion, Arakkonam under the 5 th Respondent in the year 2012. He was issued Memorandum under Rule 36 of W.P.No.11774 of 2014 the CISF Rules by the 5th Respondent on 28.12.2012 with the following Article of Charge: \u201cCISF No.066008247 Constable/GD Suresh (u/s) of CISF, RTC, Arakkonam was detailed to perform the duties of Dry Canteen Salesman from 03.11.2012 to 02.12.2012. On 06.11.2012, 13.11.2012 and 21.11.2012, he sold 01 pair of Anklet Khaki to Chest No.307 ASI/Exe (UT) Niraj Kumar, Chest No.317 ASI/Exe (UT) R.K. Rana and Chest No.314 ASI/Exe (UT) P.K.Upadhya respectively. Further on 26.11.2012, held sold 01 pair of Boot Ankle (Black) to Chest No.255 HC/Clk. (UT) Nitin Singh and Chest No.254 HC/Clk. (UT) Ravi Kumar by collecting more amount that its fixed rate. Further, he has not issued any cash receipt for the items sold to the trainees. Thus the act committed by CISF No.066008247 Constable/GD Suresh amounts to gross indiscipline and misconduct which is unbecoming of a member of a disciplined Force. Hence, the charge. 3. Denying the article of Charge framed against him, the Petitioner submitted a detailed written Statement of defence on 15.10.2013. Enquiry Officer was appointed, who, after enquiry, submitted his Report based on the materials available on record. After calling for explanation from the petitioner, on the basis of findings of the Enquiry Officer, the 5th Respondent imposed the punishment of compulsory retirement on the petitioner, vide order dated 13.09.2013. Aggrieved by the same, the Petitioner filed an Appeal before the W.P.No.11774 of 2014 4th Respondent on 20.09.2013 and the same was rejected on 28.10.2013. Challenging the order of rejection, the Petitioner filed a Revision before the 3rd Respondent on 10.02.2014, which was also rejected, the petitioner has come up with the present Writ Petition. 4. Learned counsel for the Petitioner submitted that, when the Petitioner took over charge of the Canteen, rate of each items was displayed in the rate Board outside the Canteen and the same was also displayed inside the Canteen, which could be verified from the Statements of P.Ws.2 and 3. In such circumstances, it was not possible to collect excess rate for the items being sold. It is his contention that, when the trainees have deposed that, they have discussed the issue of excess rate with their room mates, none of their room mates were called for the enquiry. He pointed out that, the billing machine of the canteen was out of order and that, only hand written Bills were prepared and handed over to the trainees. However, during the enquiry, the trainees were not able to produce any hand written bill issued by the petitioner. There being no substantive material to implicate the petitioner, the finding recorded by the enquiry officer is unsustainable and the punishment consequent upon the said finding is also impermissible and, therefore, prays for allowing the present writ petition. W.P.No.11774 of 2014 5. On the above contentions, this Court heard the learned counsel appearing for the respondents, who submitted that the materials available on record were analysed independently by the concerned authorities to come to the finding based on which punishment has been awarded. It is the further submission of the learned counsel for the respondents that the standard of proof required in a departmental proceedings is not like the proof that is required in a criminal trial. The appreciation of evidence is on the basis of preponderance of probabilities and not subject to strict enforcement of the provisions of the Evidence Act. Further, the learned counsel also laid emphasis on the ratio laid down by the Hon'ble Supreme Court with regard to the scope of judicial review in departmental proceedings and, therefore, prayed that this Court may not interfere with the order impugned herein. 6. In a recent decision in Director General of Police, RPF & Ors. - Vs \u2013 Rajendra Kumar Dubey (C.A. No.3820/2020 dated 25.11.20), the Hon'ble Supreme Court, adverting to the various decisions of the Apex Court relating to the interference by the High Court in exercise of its writ jurisdiction with respect to disciplinary proceedings, including the decision in Chaturvedi's case (supra), held as under :- \u201c12.1 ...... It is well settled that the High Court must not act W.P.No.11774 of 2014 as an appellate authority, and re-appreciate the evidence led before the enquiry officer. We will advert to some of the decisions of this Court with respect to interference by the High Courts with findings in a departmental enquiry against a public servant. In State of Andhra Pradesh v S.Sree Rama Rao, a three judge bench of this Court held that the High Court under Article 226 of the Constitution is not a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant. It is not the function of the High Court under its writ jurisdiction to review the evidence, and arrive at an independent finding on the evidence. The High Court may, however interfere where the departmental authority which has held the proceedings against the delinquent officer are inconsistent with the principles of natural justice, where the findings are based on no evidence, which may reasonably support the conclusion that the delinquent officer is guilty of the charge, or in violation of the statutory rules prescribing the mode of enquiry, or the authorities were actuated by some extraneous considerations and failed to reach a fair decision, or allowed themselves to be influenced by irrelevant considerations, or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion. If however the enquiry is properly held, the departmental authority is the sole judge of facts, and if there is some legal evidence on which the findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a writ petition. W.P.No.11774 of 2014 These principles were further reiterated in the State of Andhra Pradesh v Chitra Venkata Rao. The jurisdiction to issue a writ of certiorari under Article 226 is a supervisory jurisdiction. The court exercises the power not as an appellate court. The findings of fact reached by an inferior court or tribunal on the appreciation of evidence, are not re-opened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ court, but not an error of fact, however grave it may be. A writ can be issued if it is shown that in recording the finding of fact, the tribunal has erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence. A finding of fact recorded by the tribunal cannot be challenged on the ground that the material evidence adduced before the tribunal is insufficient or inadequate to sustain a finding. The adequacy or sufficiency of evidence led on a point, and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the tribunal. In subsequent decisions of this Court, including Union of India v. G. Ganayutham, Director General RPF v. Ch. Sai Babu, Chennai Metropolitan Water Supply and Sewerage Board v T.T. Murali, Union of India v. Manab Kumar Guha, these principles have been consistently followed. In a recent judgment delivered by this Court in the State of Rajasthan & Ors. v. Heem Singh this Court has summed up the law in following words : \u201c33. In exercising judicial review in disciplinary matters, there are two ends of the spectrum. The first embodies a rule of restraint. The second defines when W.P.No.11774 of 2014 interference is permissible. The rule of restraint constricts the ambit of judicial review. This is for a valid reason. The determination of whether a misconduct has been committed lies primarily within the domain of the disciplinary authority. The judge does not assume the mantle of the disciplinary authority. Nor does the judge wear the hat of an employer. Deference to a finding of fact by the disciplinary authority is a recognition of the idea that it is the employer who is responsible for the efficient conduct of their service. Disciplinary enquiries have to abide by the rules of natural justice. But they are not governed by strict rules of evidence which apply to judicial proceedings. The standard of proof is hence not the strict standard which governs a criminal trial, of proof beyond reasonable doubt, but a civil standard governed by a preponderance of probabilities. Within the rule of preponderance, there are varying approaches based on context and subject. The first end of the spectrum is founded on deference and autonomy \u2013 deference to the position of the disciplinary authority as a fact finding authority and autonomy of the employer in maintaining discipline and efficiency of the service. At the other end of the spectrum is the principle that the court has the jurisdiction to interfere when the findings in the enquiry are based on no evidence or when they suffer from perversity. A failure to consider vital evidence is an incident of what the law regards as a perverse determination of fact. Proportionality is an entrenched feature of our jurisprudence. Service jurisprudence has W.P.No.11774 of 2014 recognized it for long years in allowing for the authority of the court to interfere when the finding or the penalty are disproportionate to the weight of the evidence or misconduct. Judicial craft lies in maintaining a steady sail between the banks of these two shores which have been termed as the two ends of the spectrum. Judges do not rest with a mere recitation of the hands-off mantra when they exercise judicial review. To determine whether the finding in a disciplinary enquiry is based on some evidence an initial or threshold level of scrutiny is undertaken. That is to satisfy the conscience of the court that there is some evidence to support the charge of misconduct and to guard against perversity. But this does not allow the court to re-appreciate evidentiary findings in a disciplinary enquiry or to substitute a view which appears to the judge to be more appropriate. To do so would offend the first principle which has been outlined above. The ultimate guide is the exercise of robust common sense without which the judges\u2019 craft is in vain.\u201d In Union of India v. P. Gunasekaran, this Court held that the High Court in exercise of its power under Articles 226 and 227 of the Constitution of India shall not venture into re- appreciation of the evidence. The High Court would determine whether : (a) the enquiry is held by the competent authority; (b) the enquiry is held according to the procedure prescribed in that behalf; (c) there is violation of the principles of natural justice in conducting the proceedings; (d) the authorities have disabled themselves from reaching a fair conclusion by some W.P.No.11774 of 2014 considerations which are extraneous to the evidence and merits of the case; (e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; (f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; (g) the disciplinary authority had erroneously failed to admit the admissible and material evidence; (h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; (i) the finding of fact is based on no evidence. In paragraph 13 of the judgment, the Court held that : \u201c13.Under Articles 226 / 227 of the Constitution of India, the High Court shall not : (i) re-appreciate the evidence; (ii) interfere with the conclusions in the enquiry, in the case the same has been conducted in accordance with law; (iii) go into the adequacy of the evidence; (iv) go into the reliability of the evidence; (v) interfere, if there be some legal evidence on which findings can be based; (vi) correct the error of fact however grave it may appear to be; (vii) go into the proportionality of punishment unless it shocks its conscience.\u201d (Emphasis Supplied) W.P.No.11774 of 2014 7. From the ratio laid down above, it is explicitly clear that the Courts, in exercise of its power of judicial review, cannot extend the examination to the correctness of the act of the disciplinary authority, but only limit itself to the manner in which the decision has been arrived at by the authorities and whether the same is in accordance with law. This Court is to test only the correctness of the decision arrived at by the authorities on the basis of the evidence before it and not proceed with the case as if it is an appeal against the impugned order. 8. A perusal of the report of the enquiry officer reveals that a finding has been recorded that the petitioner had collected excess rate from three trainees viz. P.Ws.4, 5 and 6, who, in their Statements, have clearly deposed that, the petitioner had charged excess rates towards purchase of Khaki anklets on 06.11.2012, 13.11.2012 and 21.11.2012, respectively. The sales list for 06.11.2012 and 13.11.2012 produced by P.W.2 are indicative of the said fact. Though it is the contention of the petitioner that the billing machine was not in operation and manual billing was given and in the absence of any bill, produced by the above witnesses to prove the case against the petitioner, the case against the petitioner cannot stand the test of legal scrutiny does not merit acceptance for the simple reason that it is not required of the persons, who W.P.No.11774 of 2014 purchased the items to keep the manual bill preserved, as they would not be aware of any disciplinary proceedings that would be initiated by the respondents against the petitioner. But it is common knowledge that insofar as manual billing is concerned, always a duplicate copy is maintained by the biller for the goods sold, so as to have a cross check on the sales on the close of hours of business. Had the petitioner given manual bills, definitely there ought to be duplicate copy of the bills given, which the petitioner could have summoned to substantiate his case. Merely pleading that billing machine was not working and manual bills was given and the said bills have not been produced by the department to substantiate the charge against the petitioner is nothing but a feeble attempt on the part of the petitioner to clutch to the last bit of straw to vindicate himself from the charges. 9. On a holistic consideration of the materials available on record, this Court is of the considered opinion that the findings recorded in the enquiry are just and reasonable and this Court, under the guise of judicial review, cannot conduct a roving expedition as if the matter is in appeal before this Court. The petitioner having not produced any material to substantiate his case, the finding recorded by the enquiry officer, as accepted by the authorities below to fasten the guilt on the petitioner does not require any interference. W.P.No.11774 of 2014 10. Insofar as the punishment awarded to the petitioner is concerned for the delinquency, it has been the consistent view of the Courts that, it is always within the domain of the Appointing Authority to decide on the punishment to be imposed on the delinquent, which should be proportionate to the act of the delinquent. Only when the punishment is disproportionate and shocking the conscience, the Courts interfere with the same, in exercise of powers under Article 226 of the Constitution of India. In Prem Nath Bali \u2013 Vs - High Court of Delhi reported in (2015 (16) SCC 415), the Hon'ble Supreme Court has held as under : \u201c20. It is a settled principle of law that once the charges levelled against the delinquent employee are proved then it is for the appointing authority to decide as to what punishment should be imposed on the delinquent employee as per the Rules. The appointing authority, keeping in view the nature and gravity of the charges, findings of the inquiry officer, entire service record of the delinquent employee and all relevant factors relating to the delinquent, exercised its discretion and then imposed the punishment as provided in the Rules. 21. Once such discretion is exercised by the appointing authority in inflicting the punishment (whether minor or major) then the courts are slow to interfere in the quantum of punishment and only in rare and appropriate case substitutes the punishment. Such power is exercised W.P.No.11774 of 2014 when the court finds that the delinquent employee is able to prove that the punishment inflicted on him is wholly unreasonable, arbitrary and disproportionate to the gravity of the proved charges thereby shocking the conscience of the court or when it is found to be in contravention of the Rules. The Court may, in such cases, remit the case to the appointing authority for imposing any other punishment as against what was originally awarded to the delinquent employee by the appointing authority as per the Rules or may substitute the punishment by itself instead of remitting to the appointing authority.\u201d (Emphasis Supplied) 11. In the case on hand, a careful perusal of the entire records right relating to the enquiry as also the order passed by the disciplinary authority, as confirmed by the appellate and revisional authorities, it clearly transpires that the disciplinary authority has applied his mind to the enquiry report and all the other materials while imposing the punishment of compulsory retirement and on appeal and revision, the appellate and the revisional authorities have appreciated the materials independently and concurred with the view of the disciplinary authority. On an overall consideration of the materials, this Court is in consensus with the order passed by the disciplinary authority as confirmed by the appellate authority and affirmed by the reviewing authority and the punishment imposed on the petitioner is just and reasonable considering the nature of delinquency and no sympathy can flow from this Court for such an W.P.No.11774 of 2014 act. Therefore, the punishment imposed on the petitioner is in no way shocking the conscience of this Court or disproportionate to the delinquency and, therefore, this Court is not inclined to interfere with the same. 12. In fine, the Writ Petition stands dismissed, as devoid of merits. No costs. 27.11.2020 Index : Yes/No Speaking Order : Yes/No (vsi2/aeb) W.P.No.11774 of 2014 To: 1. The Secretary to Government, Union of India, Ministry of Home Affairs, New Delhi. 2. The Director General, Central Industrial Security Force, CGO Complex, Lodhi Road, New Delhi \u2013 110 003. 3. The Inspector General, Central Industrial Security Force, Hyderabad. 4. The Deputy Inspector General, Central Industrial Security Force, Recruitment Training Centre, Arakkonam, Suraksha Campus Post, Vellore District. 5. The Senior Commandant, Central Industrial Security Force, Recruitment Training Centre, Arakkonam, Suraksha Campus Post, Vellore District. W.P.No.11774 of 2014 M.DHANDAPANI,J. vsi2 W.P.No.11774 of 2014 27.11.2020",
        "110007179": "1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1007 OF 2021 UNIVERSITY OF DELHI \u2026APPELLANT(S) VERSUS DELHI UNIVERSITY CONTRACT EMPLOYEES UNION & ORS. \u2026RESPONDENT(S) WITH CIVIL APPEAL NO. 1008 OF 2021 (Delhi University Contract Employees Union and anr. vs. University of Delhi and ors.) JUDGMENT Uday Umesh Lalit, J. 1. These appeals arise out of the final judgment and order dated 22.11.2016 passed by the High Court of Delhi at New Delhi in LPA No. 989/2013. The appeal preferred by University of Delhi (\u201cthe University\u201d for short) i.e. Civil Appeal No. 1007 of 2021 arising out of SLP(C) No. 17486 of 2017 is taken as the lead matter. Signature Not Verified Digitally signed by Indu Marwah Date: 2021.03.25 2. While allowing the Letters Patent Appeal preferred by the Delhi 19:53:43 IST Reason: University Contract Employees\u2019 Union (\u201cthe Union\u201d for short) & Others, following conclusions were arrived at and directions were issued by the Division Bench of the High Court:- \u201cConclusion I. The decision of the University of Delhi to grant one time age exemption to all contract labour who may have served for over a year on such basis for participating in the selection in effect is in the nature of the Scheme postulated by the Supreme Court in para 53 of Umadevi. It cannot be denied that such opportunity to participate in the selection process has to be meaningful. II. In view of the age relaxation given by the University of Delhi, an opportunity to undergo the selection process was made available to all contract employees who had worked for one year or more on contract. As a result of such opportunity, the contract workers were rendered entitled to be tested on a realistic and fair scale and benchmark. There is substance in the grievance of the contractual employees that to test them on the same standards as new applicants is to deprive them of a fair and meaningful opportunity to participate in the selection process. III. The Delhi University admits that the contract employees who applied under the last recruitment drive i.e. 6th November, 2013 possessed the requisite qualifications as per the recruitment rules of 2008. Regular vacant posts were available when they were appointed. Therefore, so far as all those who applied are concerned, their qualifications stand verified. Furthermore, their original appointments could also, at the worst, be termed irregular and not illegal. IV. There is substance in the grievance of the appellants that pursuant to the notification dated 6th November, 2013, they have not been subjected to a test that is fair and appropriate for them. The respondent-University ought to have designed an appropriate mechanism for testing the appellants having regard to the date when they would have acquired their qualifications. Beside the appointment drive conducted by the respondent-University, they have regular post available for making appointments pursuant to a test appropriately designed for the appellants and other persons based like them. V. The appellants and others like them have served the organisation for long years, and, it is evident that even if their having acquired academic qualifications much before the new applicants, the deficiency, if any, is made good by the valuable experience acquired by them by virtue of the years of service. The learned Single Judge has fallen into error in treating the writ petition as one seeking a relief of regularisation. VI. The respondents were unable to fill up the vacancies pursuant to the process initiated by the notification dated 6 th November, 2013 which are still available. VII. In view of the passage of time, it would be unfair to the appellants as well as the respondents to remand the matter for consideration of the above. This court is adequately empowered to mould the relief to ensure complete justice to the parties. Result 102. In view thereof, this appeal is disposed of with a direction to the University of Delhi to design and hold an appropriate test for selection in terms of the notification dated 6th November, 2013 having regard to the fact that the persons working on contract basis covered under the notification dated 6th November, 2013 had obtained their essential qualifications much before the fresh applicants; that they have rendered satisfactory service and bring with them the benefit of the knowledge acquired by experience gained while working on contract basis with the Delhi University. 103. It is also clarified that the same persons who shall be so tested would be those who would be eligible pursuant to the advertisement dated 6th November, 2013. The impugned order of the Single Judge dated 16 th December, 2013 is modified to this extent and the appeal is disposed of with the above directions.\u201d 3. The relevant facts for the present purpose, in brief, are as under:- A) By communication dated 31.08.1999 the University Grants Commission (\u201cUGC\u201d, for short) imposed a ban on filling up of non-teaching posts in all institutes/universities and the affiliated colleges. The relevant part of the directions issued by the UGC were:- \u201c(2)Ban on filling up of vacant posts. Every University/College shall undertake a review of all the posts, which are lying vacant in the Universities and in the affiliated Colleges and subordinate offices, etc., in consultation with the University Grants Commission. Financial Advisers will ensure that the review is completed in a time bound manner and full details of vacant posts in their respective Universities etc. are available. TILL THE REVIEW IS COMPLETED, NO VACANT POSTS SHALL BE FILLED UP EXCEPT WITH THE APPROVAL OF THE UNIVERSITY GRANTS COMMISSION.\u201d These directions were reiterated by UGC in subsequent letters. B) On 12.01.2011 the UGC sanctioned and allowed the University to fill up 255 posts of Junior Assistants while suggesting changes in Recruitment Rules of the University. Accordingly, Recruitment Rules (Non-Teaching Employees) 2008 were amended by the University and an advertisement was published on 06.11.2013 in the leading newspapers inviting applications for 255 posts of Junior Assistants in the University. C) However, during the period from 2003 to 2013 various appointments were made by the University on contract basis as a result of which about 300 Junior Assistants are presently in the employment of the University on contract basis, most of whom are members of the Union. D) Soon after the advertisement dated 06.11.2013, Writ Petition (C) No.7929 of 2013 was filed by the Union seeking following reliefs:- \u201c(i) To direct the Respondents to formulate a scheme for regularising the services of members of the petitioner Union and other petitioners working on contract/ad hoc/daily wage basis after relaxing age requirement so as to confer on them permanent status; (ii) To direct Respondent no. 1 to pay salary to all the members of the petitioner Union and other petitioners at the rate of the minimum salary of the grade to which they have been appointed as is done by Respondent No. 1 in respect of Assistant Professors of the University/Colleges; (iii) To direct Respondent No. 1 to pay to all the members of the petitioner Union and other petitioners who have worked for six months or 240 days in each year of their employment with Respondent No. 1 on ad hoc/contract/daily wage basis non-productivity linked bonus retrospectively from the date(s) of their employment; (iv) To direct Respondent No. 1 to fill up all vacancies in future as and when they arise within six months of occurrence to avoid any ad hoc/contractual arrangement in future; (v) To direct Respondent No. 1 to grant maternity leave and other benefits to women employees; To allow this writ petition with costs; and (vi) To pass any other appropriate order and/or direction which this Hon\u2019ble court deems fit and proper in the interest of justice.\u201d E) A Single Judge of the High Court by his order dated 16.12.2013 rejected said writ petition. Relying on the decision of this Court in Secretary, State of Karnataka & Ors. vs. Umadevi & Ors.1, it was observed:- \u201c2. All the issues which have been urged in the present petition stand settled against the petitioners by the Constitution Bench judgment of the Supreme Court in the case of Secretary, State of Karnataka & Ors. vs. Umadevi & Ors., (2006) 4 SCC 1. The Supreme Court in the case of Umadevi (supra) has laid down the following ratio:- \u201c(I) The questions to be asked before regularization are:- (a)(i) Was there a sanctioned post (court cannot order creation of posts because finances of the state may go haywire), (ii) is there a vacancy, (iii) are the persons qualified persons and (iv) are the appointments through regular recruitment process of calling all possible persons and which process involves inter-se competition among the candidates. (b) A court can condone an irregularity in the appointment procedure only if the irregularity does not go to the root of the matter. (II) For sanctioned posts having vacancies, such posts have to be filled by regular recruitment process of prescribed procedure otherwise, the constitutional mandate flowing from Articles 14, 16, 309, 315, 320 etc. is violated. (III) In case of existence of necessary circumstances the government has a right to appoint contract employees or casual labour or employees for a project, but, such persons form a class in themselves and they cannot claim equality (except possibly for equal pay for equal work) with regular employees who form a separate class. Such 1 (2006) 4 SCC 1 temporary employees cannot claim legitimate expectation of absorption/regularization as they knew when they were appointed that they were temporary inasmuch as the government did not give and nor could have given an assurance of regularization without the regular recruitment process being followed. Such irregularly appointed persons cannot claim to be regularized alleging violation of Article 21. Also the equity in favour of the millions who await public employment through the regular recruitment process outweighs the equity in favour of the limited number of irregularly appointed persons who claim regularization. (IV) Once there are vacancies in sanctioned posts such vacancies cannot be filled in except without regular recruitment process, and thus neither the court nor the executive can frame a scheme to absorb or regularize persons appointed to such posts without following the regular recruitment process. (V) At the instance of persons irregularly appointed the process of regular recruitment shall not be stopped. Courts should not pass interim orders to continue employment of such irregularly appointed persons because the same will result in stoppage of recruitment through regular appointment procedure. (VI) If there are sanctioned posts with vacancies, and qualified persons were appointed without a regular recruitment process, then, such persons who when the judgment of Uma Devi1 is passed have worked for over 10 years without court orders, such persons be regularized under schemes to be framed by the concerned organization. (VII) The aforesaid law which applies to the Union and the States will also apply to all instrumentalities of the State governed by Article 12 of the Constitution.\u201d 3. Para-4 of the judgment in the case of Umadevi1 specifically directs that Courts should desist from issuing orders preventing regular selection or recruitment at the instance of persons who are only adhoc/contractual/casual employees and who have not secured regular appointments as per procedure established. The Supreme Court has further observed that passing of orders preventing regular recruitment tends to defeat the very constitutional scheme of public employment and that powers under Article 226 of the Constitution of India therefore cannot be exercised for perpetuating illegalities, irregularities or improprieties or for scuttling the whole scheme of public employment. 4. In the present case, it cannot be and could not be disputed that employment to be given pursuant to the posts which have been advertised by the advertisement dated 6.11.2013 is with respect to regular posts or permanent posts. Accordingly, in view of the ratio of the judgment in the case of Umadevi1 , and more particularly para-4 thereof, this Court cannot interdict the regular selection process. I may note that the learned senior counsel for respondent no. 1 states that regular employment in the posts now advertised could not be given earlier because of a ban on regular recruitments imposed by UGC. Since that ban has been lifted, regular posts are now being advertised for being filled in. I may note that I take the statement on record made on behalf of respondent no. 1 that the University is going to give age relaxation to all candidates in its employment which would be the length of service which has been rendered by that employee in the employment of respondent no. 1-University while working on casual/adhoc/temporary status basis. This statement is made pursuant to the letter dated 5.12.2013 which is placed on record. 5. Learned counsel for the petitioner seeks to argue that respondent-University is appointing persons on contractual basis pursuant to the earlier advertisement dated 30.5.2013 and which should not be done in view of the ratio of the judgment of the Supreme Court in the case of Umadevi1. This argument is misconceived for various reasons. Firstly, Umadevi's case (supra) does not state that State is not bound to make permanent appointment. In fact, Umadevi1 allows State and instrumentalities of State as per exigency of situation also to make contractual/casual/temporary appointments. In any case, this argument is also rejected for the reason that learned senior counsel on instruction states that posts advertised in terms of the advertisement dated 30.5.2013 in fact merge with the advertisement now issued on 6.11.2013 by requiring appointments to such posts only to be made as regular appointments and in permanent employment.\u201d F) In the recruitment process pursuant to the advertisement dated 06.11.2013, the Junior Assistants employed on contractual basis, also participated. All contractual appointees were granted age relaxation. However, only 120 regular appointments could be made by the University out of which 10 were contractual appointees and members of the Union. G) The Union, being aggrieved by the dismissal of its Writ Petition, filed LPA No.989/2013 before the Division Bench of the High Court. During the pendency of said Appeal, factual details pertaining to the members of the Union were placed on record, which show that the earliest contract employees were appointed in the year 2003 while the last appointees were of the year 2013. The details can be tabulated as under:- Sl. No. Year of appointment No. of contract appointees H) By its judgment and order dated 22.11.2016, the Division Bench of the High Court allowed the appeal to the extent indicated above and the University was directed to design and hold an appropriate test for selection in terms of Notification dated 06.11.2013. I) Being aggrieved, the University filed the instant appeal. The Union also preferred an independent appeal i.e. Civil Appeal No.1008 of 2021 arising out of SLP(C)No.4906 of 2021. By its interim order dated 04.07.2017, the direction to hold special tests was stayed by this Court but it was directed that the contract employees would continue to work in the positions held by them on provisional basis until the next round of selections. The contract employees were however granted liberty to participate in any selection process held in future. 4. When these appeals came up before this Court on 22.10.2019, it was noted that even after the selection undertaken in the year 2013 there remained regular vacancies. The University was therefore directed to file an appropriate affidavit indicating the status. In the affidavit dated 13.11.2019 the University indicated that 124 regular posts of Junior Assistants were then lying vacant. 5. In the affidavit dated 09.03.2021 filed on behalf of the University, it is submitted that a decision has been taken that in order to facilitate the contractual employees to participate in the recruitment process, age relaxation as well as certain advantage for the service rendered as contract employees will be given by the University. Paragraphs 6 and 7 of said affidavit read are as under:- \u201c6. In view of the order of this Court, to enable the contractual employees to participate in the recruitment process, a comprehensive age relaxation with respect to the upper age limit has been given to the contract employees working at the University in the present recruitment process. 7. In addition to the above, a maximum of upto 10 extra marks, depending on the number of years of service of the contract employee, would be given to them while finalizing the merit.\u201d 6. Heard Mr. Santosh Kumar, learned Advocate for the University and Mr. Colin Gonsalves, learned Senior Advocate for the Union. It was submitted by Mr. Santosh Kumar, learned Advocate that the directions issued by the Division Bench of the High Court were not consistent with the law declared by this Court in Umadevi1 and the subsequent decisions of this Court including that in Official Liquidator vs. Dayanand and Ors. 2. With regard to the ensuing selection to be undertaken where the benefits in terms of paragraphs 6 and 7 of the affidavit dated 09.03.2021 would be extended, it was submitted that the total marks in the test would be 300 and grant of 10 marks 2 (2008) 10 SCC 1 would mean 3.33% advantage. On the other hand, Mr. Gonsalves, learned Senior Advocate submitted that even after the decision of this Court in Umadevi1, this Court extended the benefit of regularization in certain cases. He relied upon the decisions of this Court in State of Karnataka and others vs. M.L. Kesari and others 3; State of Gujarat and others vs. PWD Employees Union and others4; Nihal Singh and others vs. State of Punjab and others5; Sheo Narain Nagar and others vs. State of Uttar Pradesh and others6; and Narendra Kumar Tiwari and others vs. State of Jharkhand and others7. 7. The decision of the Constitution Bench of this Court in Umadevi1 was pronounced on 10.04.2006 by which time, the earliest contract employees had put in only 3-4 years of service and most of the contract employees were engaged after the decision in Umadevi1. In paragraphs 47, 49 and 53 of the decision in Umadevi1, this Court stated:- \u201c47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognised by the relevant rules or procedure, he is aware 3 (2010) 9 SCC 247 [Paras 7 & 8] 4 (2013) 12 SCC 417 [Para 27] 5 (2013) 14 SCC 65 6 (2017) 14 SCALE 247 [Para 8] = (2018) 13 SCC 432 7 (2018) 8 SCC 238 of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post. \u2026 \u2026 \u2026 49. It is contended that the State action in not regularising the employees was not fair within the framework of the rule of law. The rule of law compels the State to make appointments as envisaged by the Constitution and in the manner we have indicated earlier. In most of these cases, no doubt, the employees had worked for some length of time but this has also been brought about by the pendency of proceedings in tribunals and courts initiated at the instance of the employees. Moreover, accepting an argument of this nature would mean that the State would be permitted to perpetuate an illegality in the matter of public employment and that would be a negation of the constitutional scheme adopted by us, the people of India. It is therefore not possible to accept the argument that there must be a direction to make permanent all the persons employed on daily wages. When the court is approached for relief by way of a writ, the court has necessarily to ask itself whether the person before it had any legal right to be enforced. Considered in the light of the very clear constitutional scheme, it cannot be said that the employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution. \u2026 \u2026 \u2026 53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa8, R.N. Nanjundappa9 and B.N. Nagarajan10 and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.\u201d (Emphasis added) 8. The decision in Umadevi1 and other relevant decisions on the point were considered by a Bench of three Judges of this Court in Official Liquidator vs. Dayanand and others2. In that case, the decisions of the Calcutta High Court and the Delhi High Court were under challenge. The Single Judge of the Calcutta High Court had directed absorption of Group \u2018C\u2019 staff, which direction 8 AIR 1967 SC 1071 9 (1972) 1 SCC 409 10 (1979) 4 SCC 507 was affirmed by the Division Bench. Similarly, a Single Judge of the Delhi High Court had directed absorption of the writ petitioners in their appropriate scales with benefits such as fitment and promotions which directions were affirmed in appeal by the Division Bench. This Court accepted the challenge and set aside the directions issued by the Calcutta High Court and the Delhi High Court. During the course of its Judgment, this Court made following observations:- \u201c52. \u2026 In this context, we may also mention that though the Official Liquidators appear to have issued advertisements for appointing the company-paid staff and made some sort of selection, more qualified and meritorious persons must have shunned from applying because they knew that the employment will be for a fixed term on fixed salary and their engagement will come to an end with the conclusion of liquidation proceedings. As a result of this, only mediocres must have responded to the advertisements and joined as company-paid staff. In this scenario, a direction for absorption of all the company-paid staff has to be treated as violative of the doctrine of equality enshrined in Articles 14 and 16 of the Constitution. [emphasis added] \u2026 \u2026 \u2026 75. By virtue of Article 141 of the Constitution, the judgment of the Constitution Bench in Umadevi1 is binding on all the courts including this Court till the same is overruled by a larger Bench. The ratio of the Constitution Bench judgment has been followed by different two-Judge Benches for declining to entertain the claim of regularisation of service made by ad hoc/temporary/daily- wage/casual employees or for reversing the orders of the High Court granting relief to such employees \u2014 Indian Drugs and Pharmaceuticals Ltd. v. Workmen11, Gangadhar 11 (2007) 1 SCC 408 Pillai v. Siemens Ltd.12, Kendriya Vidyalaya Sangathan v. L.V. Subramanyeswara13, Hindustan Aeronautics Ltd. v. Dan Bahadur Singh14. However, in U.P. SEB v. Pooran Chandra Pandey15 on which reliance has been placed by Shri Gupta, a two-Judge Bench has attempted to dilute the Constitution Bench judgment by suggesting that the said decision cannot be applied to a case where regularisation has been sought for in pursuance of Article 14 of the Constitution and that the same is in conflict with the judgment of the seven-Judge Bench in Maneka Gandhi v. Union of India16.\u201d The Judgment of a Bench of two Judges of this Court in Pooran Chandra Pandey16 was then found to be inconsistent with the law laid down by this Court in Umadevi1. 9. All the decisions relied upon by Mr. Colin Gonsalves, learned Senior Advocate were by Benches of two Judges of this Court and in each of those cases, the concerned employees had put in more than 10 years of service and could claim benefit in terms of paragraph 53 of the decision in Umadevi1. In the last of those decisions i.e. in Narendra Kumar Tiwari7, the submission was that the employees had not put in more than 10 years of service with the newly created State of Jharkhand and, therefore, there was no entitlement in terms of the decision in Umadevi1. Relying on the concept of one-time measure elaborated in M.L. Kesari3, it was observed:- 12 (2007) 1 SCC 533 13 (2007) 5 SCC 326 14 (2007) 6 SCC 207 15 (2007) 11 SCC 92 16 (1978) 1 SCC 248 \u201c3. The appellants had contended before the High Court that the State of Jharkhand was created only on 15-11-2000 and therefore no one could have completed 10 years of ser- vice with the State of Jharkhand on the cut-off date of 10- 4-2006. Therefore, no one could get the benefit of the Reg- ularisation Rules which made the entire legislative exercise totally meaningless. The appellants had pointed out in the High Court that the State had issued Resolutions on 18-7- 2009 and 19-7-2009 permitting the regularisation of some employees of the State, who had obviously not put in 10 years of service with the State. Consequently, it was sub- mitted that the appellants were discriminated against for no fault of theirs and in an irrational manner. \u2026 \u2026 \u2026 6. The concept of a one\u00adtime measure was further ex\u00ad plained in Kesari3 in paras 9, 10 and 11 of the Report which read as follows: (SCC pp. 250\u00ad51, paras 9\u00ad11) \u20189. The term \u201cone-time measure\u201d has to be under- stood in its proper perspective. This would nor- mally mean that after the decision in Umadevi1 , each department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, daily-wage or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularise their services. 10. At the end of six months from the date of de- cision in Umadevi1, cases of several daily- wage/ad hoc/casual employees were still pending before courts. Consequently, several departments and instrumentalities did not commence the one- time regularisation process. On the other hand, some government departments or instrumentali- ties undertook the one-time exercise excluding several employees from consideration either on the ground that their cases were pending in courts or due to sheer oversight. In such circumstances, the employees who were entitled to be considered in terms of para 53 of the decision in Umadevi1, will not lose their right to be considered for regu- larisation, merely because the one-time exercise was completed without considering their cases, or because the six-month period mentioned in para 53 of Umadevi1 has expired. The one-time exer- cise should consider all daily-wage/ad hoc/casual employees who had put in 10 years of continuous service as on 10-4-2006 without availing the pro- tection of any interim orders of courts or tri- bunals. If any employer had held the one-time ex- ercise in terms of para 53 of Umadevi1, but did not consider the cases of some employees who were entitled to the benefit of para 53 of Umadevi1, the employer concerned should con- sider their cases also, as a continuation of the one-time exercise. The one-time exercise will be concluded only when all the employees who are entitled to be considered in terms of para 53 of Umadevi1, are so considered. 11. The object behind the said direction in para 53 of Umadevi1 is twofold. First is to ensure that those who have put in more than ten years of con- tinuous service without the protection of any in- terim orders of courts or tribunals, before the date of decision in Umadevi1 was rendered, are con- sidered for regularisation in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily- wage/ad hoc/casual basis for long periods and then periodically regularise them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appoint- ment. The true effect of the direction is that all persons who have worked for more than ten years as on 10-4-2006 [the date of decision in Umadevi1 without the protection of any in- terim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularisation. The fact that the employer has not undertaken such exercise of regularisation within six months of the decision in Umadevi1 or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be con- sidered for regularisation in terms of the above directions in Umadevi1 as a one-time measure.\u2019 7. The purpose and intent of the decision in Umadevi 1 was therefore twofold, namely, to prevent irregular or ille- gal appointments in the future and secondly, to confer a benefit on those who had been irregularly appointed in the past. The fact that the State of Jharkhand continued with the irregular appointments for almost a decade after the decision in Umadevi1 is a clear indication that it believes that it was all right to continue with irregular appoint- ments, and whenever required, terminate the services of the irregularly appointed employees on the ground that they were irregularly appointed. This is nothing but a form of exploitation of the employees by not giving them the benefits of regularisation and by placing the sword of Damocles over their head. This is precisely what Umadevi1 and Kesari3, sought to avoid. 10. The decision in Narendra Kumar Tiwari7 has to be understood in the backdrop of the facts of that case. 11. The contract employees in the present case cannot, therefore, claim the relief of regularization in terms of paragraph 53 of the decision in Umadevi1. The rejection of their petition by the single Judge of the High Court was quite correct and there was no occasion for the Division Bench to interfere in the matter. 12. It is true that, as on the day when the judgment in Umadevi1 was delivered by this Court, the contract employees had put in just about 3 to 4 years of service. But, as of now, most of them have completed more than 10 years of service on contract basis. Though the benefit of regularization cannot be granted, a window of opportunity must be given to them to compete with the available talent through public advertisement. A separate and exclusive test meant only for the contract employees will not be an answer as that would confine the zone of consideration to contract employees themselves. The modality suggested by the University, on the other hand, will give them adequate chance and benefit to appear in the ensuing selection. 13. We, therefore, direct that all the concerned contract employees engaged by the University be afforded benefits as detailed in paragraphs 6 and 7 of the affidavit dated 09.03.2021 with following modifications: (a) The benefit of age relaxation as contemplated in paragraph 6 of the affidavit without any qualification must be extended to all the contract employees. (b) In modification of paragraph 7 of the affidavit, those employees who were engaged in the year 2011 be given the benefit of 10 marks in the ensuing selection process while for every additional year that a contract employee had put in, benefit of one more mark subject to the ceiling of 8 additional marks be given. In other words, if a contract employee was engaged for the first time in the year 2010, he shall be entitled to the benefit of 11 marks, while one engaged since 2003 shall be given 18 marks, as against the appointee of 2011 who will have the advantage of only 10 marks. The contract appointees of 2012 and 2013 will have the advantage of 9 and 8 marks respectively. (c) The Public Notice inviting applications from the candidates shall specifically state that the advantage in terms of the order passed by this Court would be conferred upon the contract employees so that other candidates are put to adequate notice. (d) All the contract employees shall be entitled to offer their candidature for the ensuing selection in next four weeks and in order to give them sufficient time to prepare, the test shall be undertaken only after three months of the receipt of applications from the candidates. 14. We hasten to add that these directions are premised on two basic submissions advanced by Mr. Santosh Kumar, learned advocate for the University that; (i) the total marks for the test will be 300 marks and thus the maximum advantage which a contract employee will have is of 18 marks which in turn is relatable to advantage of 6% as against other participants in the selection process; (ii) all the contract employees are otherwise entitled and eligible to participate in the selection process. 15. In our view, paragraphs 6 & 7 of the affidavit with the modifications as directed hereinabove will subserve the purpose. Such directions will not only afford chance to the contract employees to participate in the selection process regardless of their age but will also entitle them to some advantage over the other participants. Similarly, those contract employees who have put in more number of years as against the other contract employees, will also have a comparative advantage. 16. Lastly, it must be observed that according to Mr. Santosh Kumar, there are at present 300 Junior Assistants working on contract basis in the University while the number of posts advertised are only 236. Even if it be assumed that all these 236 posts are secured by the contract employees, that would still leave 64 of the contract employees as unsuccessful. It may therefore possibly be said that as against the required posts of 236, the University had engaged contract employees in excess of the required number or that there may be further advertisement to fill up the remaining posts. We need not go into this issue and we rest content by saying that in any selections in future, one more chance and advantage in terms of this order shall be given to such unsuccessful contract employees. 17. With the aforesaid observations, these appeals stand disposed of. No costs. \u2026...\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026..J. [UDAY UMESH LALIT] ..\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026..J. [K. M. JOSEPH] New Delhi March 25, 2021.",
        "95803467": "REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 975 OF 2021 SANJIV PRAKASH \u2026APPELLANT VERSUS SEEMA KUKREJA AND ORS. \u2026RESPONDENTS WITH CIVIL APPEAL NO. 976 OF 2021 JUDGMENT R.F. Nariman, J Civil Appeal No. 975 of 2021 1. This appeal arises out of the dismissal of a petition under Section 11 of the Arbitration and Conciliation Act, 1996 [\u201c1996 Act\u201d] filed before the High Court of Delhi. The Appellant, Sanjiv Prakash, is a member of a family which also consists of his sister, Seema Kukreja (Respondent No.1 herein), Signature Not Verified Natarajan Date: 2021.04.06 his mother, Daya Prakash (Respondent No.2 herein), and his father, Prem Digitally signed by R 17:16:59 IST Reason: Prakash (Respondent No.3 herein). The Appellant and Respondents are hereinafter collectively referred to as the \u201cPrakash Family\u201d. 2. The facts, briefly stated, are as follows: 2.1. A private company was incorporated on 09.12.1971 under the name and style of Asian Films Laboratories Private Limited [\u201cthe company\u201d] by Prem Prakash, the entire amount of the paid-up capital being paid for by him from his personal funds. He then distributed shares to his family members without receiving any consideration for the same. On 06.03.1997, the name of the company was altered to its present name \u2013 ANI Media Private Limited. 2.2. Owing to the extensive efforts of Sanjiv Prakash at a global level, Reuters Television Mauritius Limited (now Thomson Reuters Corporation), a company incorporated in Mauritius [\u201cReuters\u201d], approached him for a long- term equity investment and collaboration with the company on the condition that he would play an active role in the management of the company. 2.3. Pursuant to this understanding, a Memorandum of Understanding [\u201cMoU\u201d] was entered into sometime in 1996 between the four members of the Prakash Family. The MoU recorded that Sanjiv Prakash, supported by the guidance and vision of Prem Prakash, had been responsible for the tremendous growth of the company. The paid-up share capital of the company was held as follows: Rupees Percentage held Prem Prakash 2,80,000 27.99% Daya Prakash 2,40,000 24.01% Sanjiv Prakash 3,00,000 30.00% Seema Kukreja 1,80,000 18.00% --------------- -------------- 10,00,000 100.00% The Prakash Family was to divest 49% of this shareholding in favour of Reuters or its affiliates, subject to necessary permission of the authorities, as follows: \u201cAnd whereas ANI for the past many years has been doing considerable business with Reuters Television (Reuters). The relationship between them has been close and cordial. In order to strengthen the relationship and make optimum use of the tremendous growth potential in the TV media sector, including to cater to the ever expanding news video demands of Reuters in its satellite transmissions to subscribers worldwide, it has been found expedient by the existing members of the company to divest 49% of their shareholding in favour of Reuters or its affiliates subject to necessary permission of authorities. This would cement the relationship built over the years between Reuters and the company.\u201d The MoU went on to record: \u201c1. The Prakash family will divest its 49% shareholding as under: Prem Prakash 1372 Daya Prakash 1176 Sanjiv Prakash 1470 ________ 2. That Prakash family recognises the leadership provided by S.P. and the role he has played in steering the company to new heights with the name ANI which is respected internationally. 3. D.P. has been the Managing Director of the company from the beginning and Prakash family recognises her role in bringing the company to a very sound financial base as a result of very ably handling the accounts and finances of the company. She would continue to be Managing Director after Reuters\u2019 participation in equity. 4. The Prakash family would continue to own 51% shareholding in the company after Reuters becomes a 49% shareholder. As they would continue to have the controlling interest it is the intention and desire of the Prakash family members that their actions and voting must be in a manner so as to act in consensus and as one block. 5. S.P. would after divesting his about 15% share, continue to hold 15% equity in the company. Reuters has made it clear that they would like the management control of the company to vest with S.P. 6. In view of the fact that S.P. has been able to get Reuters to participate in Asian Films Laboratories Pvt. Ltd. The other shareholders of the Prakash family namely P.P., D.P. and S.K. agree to vote on all resolutions both in the directors and shareholders meeting in the manner instructed by S.P. To this effect, they are agreeable to cooperate and vote for amendment in the Articles to reflect the following: (a) Any resolution in Board to have either affirmative vote of S.P. or his consent in writing to approve the same. (b) Disproportionate voting rights irrespective of the number of the shares held by them as under: Prem Prakash 1 vote Daya Prakash 1 vote Seema Kukreja 1 vote Sanjiv Prakash 5097 votes Reuters Television Mauritius Limited 4900 votes. 7. This MoU shall be binding on all the heirs, successors and assigns of P.P., D.P., S.P. and S.K. and they would act in the manner stated in this MoU. 8. That in the event P.P. or D.P. desire to sell and or bequeath his/her equity shares, the same shall be offered/bequeathed only to S.P. or his heirs and successors. Similarly, in the event of S.K. or her heirs/successors desire to sell their shares, the same shall be sold only to S.P. or his successors. The consideration paid shall be the net worth of shares on the last balance sheet date determined by the auditors of the company. xxx xxx xxx 11. This MoU embodies the entire understanding of the parties as to its subject matter and shall not be amended except in writing executed all the parties to the MoU. 12. All disputes, questions or differences etc., arising in connection with this MoU shall be referred to a single arbitrator in accordance with and subject to the provisions of the Arbitration Act, 1940, or any other enactment or statutory modification thereof for the time being in force.\u201d 2.4. A Shareholders\u2019 Agreement dated 12.04.1996 [\u201cSHA\u201d] was then executed between the Prakash Family and Reuters. So far as is relevant, the SHA referred to the Appellant and the Respondents collectively as the \u201cPrakash Family Shareholders\u201d, and individually as a \u201cPrakash Family Shareholder\u201d. It then set out the reason for entering into the SHA as follows: \u201cWHEREAS (A) Pursuant to a share purchase agreement dated today between the Prakash Family Shareholders and Reuters (the Share Purchase Agreement), Reuters has agreed to purchase 4,900 Shares (as defined below) representing 49% of the issued share capital of Asian Films Laboratories (Pvt.) Ltd. (the Company). Following completion of the Share Purchase Agreement, each of the Prakash Family Shareholders will hold the numbers of Shares set opposite his or her name in schedule 3 hereto, with the aggregate number of Shares so held by the Prakash Family Shareholders representing 51% of the issued share capital of the Company. (B) The Shareholders (as defined below) are entering into the Agreement to set out the terms governing their relationship as shareholders in the Company.\u201d In the definition section, \u201cArtificial Deadlock\u201d and \u201cManagement Deadlock\u201d were defined as follows: \u201cArtificial Deadlock means a Management Deadlock caused by virtue of the Prakash Family Shareholders or Reuters (or any appointee on the Board) voting against an issue or proposal in circumstances where the approval of the same is required to enable the Company to carry on the Business properly and effectively in accordance with the then current approved Business Plan and Budget;\u201d xxx xxx xxx \u201cManagement Deadlock means a material management dispute (not being an Artificial Deadlock) between any or all of the Prakash Family Directors on the one hand and the Reuters directors on the other hand relating to the affairs of the Company which is not resolved within sixty (60) days of such dispute being referred for settlement to the Reuters Managing Director (as defined in clause 16.1) and the Chairman;\u201d The expression \u201cPrakash Family Directors\u201d was defined as follows: \u201cPrakash Family Directors means the directors of the Company from time to time appointed by the Prakash Family Shareholders in accordance with the Articles;\u201d The expression \u201cPrakash Family Members or Interests\u201d was defined as follows: \u201cPrakash Family Members or Interests means each of the Prakash Family Shareholders and each of their respective fathers, mothers, sons, daughters, brothers and sisters (the Prakash Family Relatives) and any company in which any such relation or any Prakash Family Shareholder has a controlling interest;\u201d \u201cReuters Directors\u201d was defined as follows: \u201cReuters Directors means the directors of the Company from time to time appointed by Reuters in accordance with the Articles;\u201d \u201cReuters Group\u201d was defined as follows: \u201cReuters Group means Reuters, its Holding Company and such Holding Company\u2019s Subsidiaries for the time being;\u201d Transfer of shares and pre-emption was dealt with in clause 4 read with clauses 11, 12, and 14 and schedule 1 of the SHA. Clause 7.2 is important and states as follows: \u201c7.2 Unless otherwise agreed by the Shareholders, the number of Directors shall be seven (7) of whom, for so long as the Percentage Interest of the Prakash Family Shareholders is in aggregate equal to or greater than fifty point zero one per cent. (50.01%), four (4) shall be Prakash Family Directors and three (3) shall be Reuters Directors in accordance with the Articles. If the Percentage Interest of the Prakash Family Shareholders falls below such level, the number of Prakash Family Directors and Reuters Directors shall be determined in accordance with the Articles.\u201d The quorum for holding meetings was then set out in clause 7.12, and matters requiring special majority were set out in clause 8.1. Default events were set out in clause 11. Clause 11.2 is important and states as follows: \u201c11.2 If a Default Event exists in relation to any of the Shareholders (the Defaulting Shareholder), then the other Shareholder(s) comprising, in the case of a Default Event existing in relation to a Prakash Family Shareholder, Reuters and, in the case of a Default Event existing in relation to Reuters, the Prakash Family Shareholders (each of Reuters in the first case and the Prakash Family Shareholders in the second case being the Non-Defaulting Shareholder(s)) shall have the right, subject to the prior right of the Defaulting Shareholder to transfer its Shares as contemplated in paragraph 8 of Schedule 1 (all as provided in clause 11.3), to purchase or procure the purchase by a nominee or by a third party of all (but not some only) of the Shares held by the Defaulting Shareholder, provided that, in the case of a Default Event comprising a material breach of the kind contemplated by clause 11.1(c)(ii), the relevant breach has not been either cured to the reasonable satisfaction of the Non-Defaulting Shareholder(s) or waived by it or, as the case may be, others.\u201d Clause 12.1, under the heading \u201cChanges in Circumstances: Illegality\u201d then provided as follows: \u201c12.1 Where the introduction, imposition or variation of any law or any change in the interpretation or application of any law makes it unlawful or impractical without breaching such law for Reuters to continue to hold upto at least forty nine per cent. (49%) of the issued ordinary share capital of the Company or to carry out all or any of its obligations under this Agreement, upon Reuters notifying the other Shareholders: (a) Reuters shall be entitled to require the other Shareholders to purchase its holding of Shares at a price determined in accordance with clause 11.4, which shall apply mutatis mutandis, and any such purchase shall be made by the other Shareholders in the proportions agreed between them or otherwise in the proportion each such other Shareholders holding of Shares bears to the aggregate number of Shares held by all of such Shareholders; (b) Any amounts loaned or made available to the Company shall forthwith be repaid to Reuters; and (c) Reuters shall upon the service of such notice cease to be bound by the provisions hereof save for the preceding provisions of this clause 12.\u201d The termination clause was set out as follows: \u201c14.1 This Agreement shall continue in full force and effect for so long as both (i) any of the Prakash Family Shareholders and (ii) any member of the Reuters Group hold any Shares. If, as a result of any sale or disposal made in accordance with this Agreement, either (i) none of the Prakash Family shareholders or (ii) no member of the Reuters Group holds any Shares, then this Agreement shall terminate and cease to be of any effect, save that this shall not: (a) relieve any Shareholder from any liability or obligation in respect of any matters, undertakings or conditions which shall not have been done, observed or performed by any such Shareholder prior to such termination; (b) save for clause 14.2, affect the terms of any agreement entered into between any Prakash Family Shareholders and Reuters or any successor of either of them holding Shares, to replace this Agreement; or (c) affect the terms of clause 15 (confidentiality) of this Agreement.\u201d The arbitration clause was set out in clause 16 which reads as follows: \u201cLEGAL DISPUTES 16.1 In the event of any dispute between the Shareholders arising in connection with this Agreement (a legal dispute), they shall use all reasonable endeavours to resolve the matter on an amicable basis. If any Shareholder serves formal written notice on any other Shareholder that a legal dispute has arisen and the relevant Shareholders are unable to resolve the dispute within a period of thirty (30) days from the service of such notice, then the dispute shall be referred to the managing director of the senior management company identified by Reuters as having responsibility for India (the Reuters Managing Director) and the Chairman of the Company. No recourse to arbitration under this Agreement shall take place unless and until such procedure has been followed. ARBITRATION 16.2 If the Reuters Managing Director and the Chairman of the Company shall have been unable to resolve any legal dispute referred to them under clause 16.1 within thirty (30) days, that dispute shall, at the request of any Shareholder, be referred to and finally settled by arbitration under and in accordance with the Rules of the London Court of International Arbitration by one or more arbitrators appointed in accordance with those Rules. The place of arbitration shall be London and the terms of this clause 16.2 shall be governed by and construed in accordance with English law. The language of the arbitration proceedings shall be English.\u201d Clause 28, upon which a large part of the argument of both sides hinges, is set out as follows: \u201cENTIRE AGREEMENT 28.1 This Agreement, the Ancillary Agreements, and the Share Purchase Agreement constitute the entire agreement and understanding of the parties with respect to the subject matter thereof and none of the parties has entered into this agreement in reliance upon any representation, warranty or undertaking by or on behalf of the other parties which is not expressly set out herein or therein. 28.2 Without prejudice to the generality of clause 28.1, the parties hereby agree that this Agreement supersedes any or all prior agreements, understanding, arrangements, promises, representations, warranties and/or contracts of any form or nature whatsoever, whether oral or in writing and whether explicit or implicit, which may have been entered into prior to the date hereof between the parties, other than the Ancillary Agreements and the Share Purchase Agreement.\u201d Clause 31 deals with governing law and jurisdiction and states as follows: \u201c31. This Agreement (save for clause 16.2, which shall be governed by and construed in accordance with the laws of England) is governed by and shall be construed in accordance with the laws of India.\u201d 2.5. On the same day, a Share Purchase Agreement dated 12.04.1996 [\u201cSPA\u201d] was entered into between the Prakash Family and Reuters. The SPA also contained an arbitration clause similar to that contained in clause 16 of the SHA, and also contained an \u201centire agreement clause\u201d in clause 11, which is similar to clause 28 of the SHA. On the same date, various ancillary agreements were also entered into between the parties, referred to in the SHA. These ancillary agreements are as follows: (i) Agreement for the Assignment of Copyright dated 12.04.1996 between Prem Prakash, Asian Films Laboratories Pvt. Ltd., and Reuters Television Mauritius Ltd. (ii) Trade Clarification Agreement dated 12.04.1996 between Asian Films Laboratories Pvt. Ltd., Reuters Television Mauritius Ltd., and the partners of Ved & Co. (i.e., Prem Prakash, Daya Prakash, Sanjiv Prakash, and Seema Kukreja) (iii) PIB Accreditation Agreement dated 12.04.1996 between Asian Films Laboratories Pvt. Ltd., Reuters Television Mauritius Ltd., and the partners of Ved & Co. (i.e., Prem Prakash, Daya Prakash, Sanjiv Prakash, and Seema Kukreja) (iv) Facilities and Marketing Agreement dated 12.04.1996 between Asian Films Laboratories Pvt. Ltd. and Reuters Television (England) Ltd. (v) Service Agreement dated 12.04.1996 between Asian Films Laboratories Pvt. Ltd. and Sanjiv Prakash (vi) Deed of Tax Indemnity dated 12.04.1996 between Prem Prakash, Daya Prakash, Sanjiv Prakash, Seema Kukreja, Asian Films Laboratories Pvt. Ltd., and Reuters Television Mauritius Ltd. 2.6. The Articles of Association of the company were amended on 14.05.1996 to reflect certain decisions that were taken in the MoU. Thus, clause 11(f) was amended so as to read as follows: \u201c11. Transfer of Shares xxx xxx xxx (f) If the Continuing Shareholder(s) comprise Prakash Family Shareholders and purchases are to be made by them under Article 11(e), SP Shall have the right (but not the obligation) to purchase all (but not some only) of the Seller\u2019s Shares. If SP shall fail to purchase all of the Seller\u2019s Shares within the time period set out in Article 11(e) the Shares subject to such Purchases shall be acquired by each Prakash Family Shareholder in the proportion such Shareholder\u2019s holding of Shares bears to the aggregate number of Shares held by all of the Prakash Family Shareholders who have become bound to make such purchases.\u201d Likewise, clause 11(i)(i) was inserted, in which it was stated: \u201c11. Transfer of Shares xxx xxx xxx (i) xxx xxx xxx (i) SP shall have the right (but not the obligation) upon serving notice in writing to each remaining Prakash Family Shareholder to purchase all (but not some only) of such Shares in preference to any other Prakash Family shareholder;\u201d Clause 16(b) of the Articles of Association also incorporated clause 6(b) of the MoU as follows: \u201c16. xxx xxx xxx (b) If a poll is demanded in accordance with the provisions of section 179 of the Companies Act 1956: (i) SP shall so long as he holds Shares be able to vote such number of Shares as is equal to the number of Shares held by all the Prakash Family Shareholders less the numbers of Prakash Family Shareholders other than SP (the other Prakash Family Shareholders). The remaining votes attributable to Shares hold by Prakash Family Shareholders shall be divided equally between the other Prakash Family shareholders; and (ii) The provisions of Article 16(b)(i) shall cease to be valid and effective upon the occurrence of any of the events in relation to SP.\u201d We are informed that this position continued up to the year 2012 after which, by mutual agreement, the Articles of Association were again amended so that the amendments incorporated in 1996 no longer continued. 2.7. Divestment of 49% of the share capital took place as was set out in the MoU as well as the SPA and the SHA, consequent upon which Daya Prakash resigned as the Managing Director and Sanjiv Prakash took over as the Managing Director of the company in 1996 itself. 2.8. Disputes between the parties arose when Prem Prakash decided to transfer his shareholding to be held jointly between Sanjiv Prakash and himself, and Daya Prakash did likewise to transfer her shareholding to be held jointly between Seema Kukreja and herself. A notice invoking the arbitration clause contained in the MoU was then served by Sanjiv Prakash on 23.11.2019 upon the three Respondents, alleging that his pre-emptive right to purchase Daya Prakash\u2019s shares, as was set out in clause 8 of the MoU, had been breached, as a result of which disputes had arisen between the parties and Justice Deepak Verma (retired Judge of this Court), was nominated to be the sole arbitrator. The reply filed by Seema Kukreja and Daya Prakash, dated 20.12.2019, pointed out that the MoU ceased to exist on and from the date of the SHA, i.e. 12.04.1996, which superseded the aforesaid MoU and novated the same in view of clause 28.2 thereof. Therefore, they denied that there was any arbitration clause between the parties as the MoU itself had been superseded and did not exist after 12.04.1996. In view of this, Sanjiv Prakash moved the Delhi High Court under Section 11 of the 1996 Act by a petition dated 06.01.2020. In the said petition, an interim order was passed on 09.01.2020 as follows: \u201cAll the parties agree to defer Agenda Nos. 4 and 8 circulated in the notice dated 31st December, 2019 in the Board Meeting scheduled to be held on 15th January, 2020 for a date beyond the next date of hearing fixed in this matter.\u201d 2.9. By the impugned judgment dated 22.10.2020, the Delhi High Court set out what according to it was the issue that had to be decided in paragraph 79 follows: \u201c79. In this petition, I am of the view, the initial issue which arises for consideration is, whether at the stage of considering the request of the petitioner for the appointment of an Arbitrator, it is only the existence of an Arbitration Agreement that needs to be seen, leaving it to the Arbitrator to decide the issue of validity of the Agreement, including the plea of novation of MoU.\u201d After referring to both the MoU and the SHA, the learned Single Judge of the Delhi High Court held: \u201c88. In so far as Clause 1.1 is concerned, the same defines \u2018artificial deadlock\u2019 as a management deadlock caused by virtue of the Prakash Family Shareholders or Reuters voting against an issue or proposal in circumstances where the approval of the same is required for the functioning of the Company as per approved plans. No doubt, Mr. Kathpalia, Mr. Nayar and Mr. Sethi may be right in contending that there exist a contemplation of groups viz. Prakash Family Members and Reuters under the SHA, but the same is in a particular fact situation of deadlock then the Prakash Family Members and Reuters act as \u2018blocks\u2019, which does not mean that SHA does not recognise Prakash Family Shareholders in their individual capacity. More so, as per the opening paragraph, the term \u2018parties\u2019 envisages Prakash Family Shareholders both individually as well as collectively.\u201d xxx xxx xxx \u201c90. A conjoint reading of the Clause 28.2 with the opening paragraph of SHA therefore necessarily means that any kind of agreement as detailed in Clause 28.2, \u2018between the parties\u2019 shall stand superseded as per Clause 28.2. So, it follows the shareholders of Prakash Family having being individually recognised under the SHA as parties, the MoU, an agreement, as relied upon by the petitioner which governs the inter-se rights and obligations of the Prakash Family stands superseded. It is not the case of the Ld. Counsel for the petitioner that the SHA does not deal with inter-se rights of the members / shareholders of the Prakash Family. The plea of Mr. Nayar that MoU was entered by Prakash Family to define their family arrangement before the Reuters came in by purchasing the shares and hence cannot be overridden by the SHA is not appealing. Nothing precluded the members of the Prakash Family to include a stipulation in the SHA, that the SHA, shall not supersede the MoU, as has been specially stated in Clause 28.2 with regard to ancillary agreements and share purchase agreement. The plea of Mr. Nayar, that the present dispute between the parties being in respect of shares in an Indian company to be resolved by London Court of International Arbitration as per English law, contracting out of Indian Law is opposed to public policy is also not appealing as such an issue doesn\u2019t arise in these proceedings which have been filed by invoking the MoU. Nor such a plea would revive the MoU, which stands novated by the SHA.\u201d After then setting out Section 62 of the Indian Contract Act, 1872 [\u201cContract Act\u201d] and this Court\u2019s judgments in Union of India v. Kishorilal Gupta & Bros., (1960) 1 SCR 493 [\u201cKishorilal Gupta\u201d], Damodar Valley Corporation v. K.K. Kar, (1974) 1 SCC 141 [\u201cDamodar Valley Corporation\u201d], and Young Achievers v. IMS Learning Resources (P) Ltd., (2013) 10 SCC 535 [\u201cYoung Achievers\u201d], the learned Single Judge then concluded: \u201c98. It is clear from a reading of the above judgments that the law relating to the effect of novation of contract containing an arbitration agreement/clause is well-settled. An arbitration agreement being a creation of an agreement may be destroyed by agreement. That is to say, if the contract is superseded by another, the arbitration clause, being a component/part of the earlier contract, falls with it or if the original contract in entirety is put to an end, the arbitration clause, which is a part of it, also perishes along with it. Hence, the arbitration clause of the MoU, being Clause 12, having perished with the MoU, owing to novation, the invocation of arbitration under the MoU is belied/not justified. 99. In view of my conclusion above, the plea of doctrine of \u2018kompetenz-kompetenz\u2019 and the reliance placed on Section 11(6A) of the Act are untenable. I have also considered the judgments relied upon by the counsels for the petitioners viz. Duro Felguera S.A. [Duro Felguera, S.A. v. Gangavaram Port 17 Ltd., (2017) 9 SCC 729], Mayavati Trading Pvt. Ltd. [Mayavati Trading (P) Ltd. v. Pradyuat Deb Burman, (2019) 8 SCC 714], Zostel Hospitality [Zostel Hospitality Pvt. Ltd. v. Oravel Stays Pvt. Ltd., Arb. Pet. 28/2018], Oriental Insurance Company Ltd. [Oriental Insurance Company Ltd. v. Narbheram Power and Steel Pvt. Ltd., (2018) 6 SCC 534], Vodafone [Vodafone International Holdings BV v. Union of India, (2012) 6 SCC 613], Uttarakhand Purv Sainik [Uttarakhand Purv Sainik Kalyan Nigam Limited v. Northern Coal Field Ltd., (2020) 2 SCC 455], Russell [Russell v. Northern Bank Development Corpn. Ltd., (1992) B.C.C. 578] and Anderson [Catherine Anderson v. Ashwani Bhatia, (2019) 11 SCC 299], and the same are not applicable to the case in hand.\u201d 3. Shri K.V. Viswanathan, learned Senior Advocate appearing on behalf of the Appellant, relied strongly upon the MoU between the Prakash Family and stressed the fact that it was a family settlement or arrangement which raised a special equity between the parties and could not be treated as a mere contractual arrangement, having to be enforced in accordance with several judgments of this Court. For this purpose, he relied strongly upon the observations contained in paragraph 9 of Kale v. Deputy Director of Consolidation, (1976) 3 SCC 119 [\u201cKale\u201d], as followed in Reliance Natural Resources Ltd. v. Reliance Industries Ltd., (2010) 7 SCC 1 (at paragraphs 49 and 50). In particular, he relied upon the fact that it was the Appellant who was responsible for the tremendous growth of the company, and it is by his efforts that Reuters infused a huge amount of capital by purchasing 49% of the share capital of the company. It is for this reason that the MoU made it clear vide clause 8 that in case any of the three Respondents wished to sell or bequeath their equity shares in the company, their shares may be offered/sold/bequeathed only to the Appellant or to his heirs and successors. The arbitration clause contained in the MoU would therefore be applicable, the 1996 Act being the Act under which the arbitration would have to be effected. He then read out various clauses of the SHA and relied strongly upon clause 12.1(a), in which it was agreed that if Reuters would have to divest any part of its shares in the company, it shall be entitled to require the other shareholders to purchase its holding of shares in such proportions as was \u201cagreed between them or otherwise\u201d, thereby making it clear that the MoU between the Prakash Family was expressly referred to and preserved by the aforesaid clause. He also stressed upon the absurdity of disputes arising between members of a family residing and working only in India to have to be referred to arbitration in accordance with the rules of the London Court of International Arbitration, which would be the result if the SHA were to supersede the MoU. He was also at pains to point out that clause 28 of the SHA has to be read as a whole, and clause 28.1 made it clear that the entire agreement and understanding between the parties which was contained in the SHA, the SPA, and the ancillary agreements was only \u201cwith respect to the subject matter thereof\u201d, the subject matter of these Agreements being the relationship between the Prakash Family and Reuters, which was completely different from the subject matter of the MoU, which was only between the members of the Prakash Family, Reuters not being a party thereto. For this purpose, he relied strongly upon the judgments contained in Barclays Bank Plc v. Unicredit Bank Ag and Anor, [2014] EWCA Civ 302 (at paragraphs 27 and 28), The Federal Republic of Nigeria v. JP Morgan Chase Bank, NA, [2019] EWHC 347 (Comm) (at paragraph 37), and Kinsella and Anor v. Emasan AG and Anor, [2019] EWHC 3196 (Ch) (at paragraphs 64 to 71). A reading of these judgments would, according to the learned Senior Advocate, show that \u201centire agreement\u201d clauses are to be construed strictly, the idea being to obviate having to refer to negotiations that had taken place between the parties pertaining to the subject matter of the agreement before the agreement was formally entered into. He then assailed the learned Single Judge\u2019s judgment dated 22.10.2020, arguing that the impugned judgment, instead of following Duro Felguera, S.A. v. Gangavaram Port Ltd., (2017) 9 SCC 729 [\u201cDuro Felguera\u201d] and Mayavati Trading (P) Ltd. v. Pradyuat Deb Burman, (2019) 8 SCC 714 [\u201cMayavati Trading\u201d], was in the teeth of the principles laid down in the aforesaid two judgments. He also argued that whether or not novation had taken place is, at the very least, an arguable point of considerable complexity which would depend upon a finding based upon various clauses of the MoU and the SHA, when construed in accordance with the surrounding circumstances. He also argued that what was missed by the learned Single Judge was the fact that a family settlement had been acted upon, resulting in an amendment of the Articles of Association of the company soon after the MoU was entered into. He also relied upon three recent judgments of this Court, which made it clear that unless an ex facie case had been made out that no arbitration agreement existed between the parties, a Section 11 court would be duty-bound to refer the parties to arbitration and leave complex questions of fact and law relating to novation of a contract under Section 62 of the Contract Act to be decided by an arbitral tribunal. 4. Shri Mukul Rohatgi, learned Senior Advocate appearing on behalf of Respondent No.3, supported the arguments of Shri Viswanathan. He referred us to the MoU, the SPA, and the SHA, and strongly relied upon the observations in Kale (supra) which were followed in Ravinder Kaur Grewal v. Manjit Kaur, (2020) 9 SCC 706 (at paragraphs 25 to 28). He argued that not only were the parties to the MoU different from those to the SHA, but that the MoU itself contemplated that the Prakash Family would enter into a separate agreement with Reuters so as to effectuate the purchase of 49% shareholding in the company by Reuters, showing thereby that the MoU and the Agreements entered into with Reuters were separate contracts. 5. Shri Avishkar Singhvi and Shri Manik Dogra, learned counsel appearing on behalf of Respondents No. 1 and 2, relied heavily on the fact that the MoU was superseded immediately, inasmuch as it no longer existed after some of its material clauses were put into the Articles of Association of the company on 14.05.1996. They also argued that the MoU was never given effect to as Daya Prakash, who was the Managing Director of the company, did not continue as such but handed over the management to Sanjiv Prakash, who then became the Managing Director of the company soon after the SHA was entered into. They then pointed out that, in any case, after 2012, even this did not remain as the Articles of Association were then amended with the consent of Sanjiv Prakash to no longer incorporate what had earlier been contained in the Articles post the amendment of 1996. They also pointed out that on the same day, i.e. on 05.10.2019, just as Prem Prakash sought to divest his shareholding in the company to be jointly held by Sanjiv Prakash and himself, Daya Prakash did likewise, and sought to divest her shareholding in the company to be jointly held by Seema Kukreja and herself. The first reaction of Sanjiv Prakash then was not to rely upon a novated MoU, but to take up the plea that the document being unstamped, ought not to be taken in evidence. It is only as an afterthought that clause 8 of the MoU was then relied upon. Both the learned counsel strongly relied upon clause 11.2 of the SHA which made it clear beyond doubt that the MoU stood superseded. They then relied upon the judgments in Kishorilal Gupta (supra) (at paragraph 9), Damodar Valley Corporation (supra) (at paragraphs 7 and 8), Young Achievers (supra) (at paragraphs 5 and 8), Sasan Power Ltd. v. North American Coal Corpn. (India) (P) Ltd., (2016) 10 SCC 813 (at paragraph 23), and Larsen & Toubro Ltd. v. Mohan Lal Harbans Lal Bhayana, (2015) 2 SCC 461 (at paragraph 15) in favour of the proposition that the MoU stood novated as a result of the SHA. They also relied upon V.B. Rangaraj v. V.B. Gopalakrishnan, (1992) 1 SCC 160 (at paragraphs 1, 2, 7 and 8) and Pushpa Katoch v. Manu Maharani Hotels Ltd., 2005 SCC OnLine Del 702 : (2005) 83 DRJ 246 (at paragraphs 5, 7 and 8), for the proposition that the MoU would be unenforceable in law as any restriction on transfer of shares of a private company, without incorporating the aforesaid in its Articles, would be invalid as a result of which the Articles of Association alone would have to be looked at. This being the case, the arbitration clause contained in an agreement which is void obviously cannot be looked at. They then referred to certain recent judgments of this Court for the proposition that the present case being an open and shut one, the learned Singe Judge of the Delhi High Court was right in dismissing the Section 11 petition filed by the Appellant. 6. By virtue of the Arbitration and Conciliation (Amendment) Act, 2015 [\u201c2015 Amendment Act\u201d], by which Section 11(6A) was introduced, the earlier position as to the scope of the powers of a court under Section 11, while appointing an arbitrator, are now narrowed to viewing whether an arbitration agreement exists between parties. In a gradual evolution of the law on the subject, the judgments in Duro Felguera (supra) and Mayavati Trading (supra) were explained in some detail in a three-Judge Bench decision in Vidya Drolia v. Durga Trading Corporation, (2021) 2 SCC 1 [\u201cVidya Drolia\u201d]. So far as the facts of the present case are concerned, it is important to extract paragraphs 127 to 130 of Vidya Drolia (supra), which deal with the judgments in Kishorilal Gupta (supra) and Damodar Valley Corporation (supra), both of which have been heavily relied upon by the learned Single Judge in the impugned judgment, as follows: \u201c127. An interesting and relevant exposition, when assertions claiming repudiation, rescission or \u201caccord and satisfaction\u201d are made by a party opposing reference, is to be found in Damodar Valley Corpn. v. K.K. Kar [Damodar Valley Corpn. v. K.K. Kar, (1974) 1 SCC 141], which had referred to an earlier judgment of this Court in Union of India v. Kishorilal Gupta & Bros. [Union of India v. Kishorilal Gupta & Bros., AIR 1959 SC 1362] to observe: (Damodar Valley Corpn. case [Damodar Valley Corpn. v. K.K. Kar, (1974) 1 SCC 141] , SCC pp. 147-48, para 11) \u201c11. After a review of the relevant case law, Subba Rao, J., as he then was, speaking for the majority enunciated the following principles: (Kishorilal Gupta & Bros. case [Union of India v. Kishorilal Gupta & Bros., AIR 1959 SC 1362], AIR p. 1370, para 10) \u2018(1) An arbitration clause is a collateral term of a contract as distinguished from its substantive terms; but nonetheless it is an integral part of it; (2) however comprehensive the terms of an arbitration clause may be, the existence of the contract is a necessary condition for its operation; it perishes with the contract; (3) the contract may be non est in the sense that it never came legally into existence or it was void ab initio; (4) though the contract was validly executed, the parties may put an end to it as if it had never existed and substitute a new contract for it solely governing their rights and liabilities thereunder; (5) in the former case, if the original contract has no legal existence, the arbitration clause also cannot operate, for along with the original contract, it is also void; in the latter case, as the original contract is extinguished by the substituted one, the arbitration clause of the original contract perishes with it; and (6) between the two falls many categories \u201cof disputes in connection with a contract, such as the question of repudiation, frustration, breach, etc. In those cases it is the performance of the contract that has come to an end, but the contract is still in existence for certain purposes in respect of disputes arising under it or in connection with it. As the contract subsists for certain purposes, the arbitration clause operates in respect of these purposes.\u2019 In those cases, as we have stated earlier, it is the performance of the contract that has come to an end but the contract is still in existence for certain purposes in respect of disputes arising under it or in connection with it. We think as the contract subsists for certain purposes, the arbitration clause operates in respect of these purposes.\u201d 128. Reference in Damodar Valley Corpn. case [Damodar Valley Corpn. v. K.K. Kar, (1974) 1 SCC 141] was also made to the minority judgment of Sarkar, J. in Kishorilal Gupta & Bros. [Union of India v. Kishorilal Gupta & Bros., AIR 1959 SC 1362] to observe that he had only disagreed with the majority on the effect of settlement on the arbitration clause, as he had held that arbitration clause did survive to settle the dispute as to whether there was or was not an \u201caccord and satisfaction\u201d. It was further observed that this principle laid down by Sarkar, J. that \u201caccord and satisfaction\u201d does not put an end to the arbitration clause, was not disagreed to by the majority. On the other hand, proposition (6) seems to be laying the weight on to the views of Sarkar, J. These decisions were under the Arbitration Act, 1940. The Arbitration Act specifically incorporates principles of separation and competence-competence and empowers the Arbitral Tribunal to rule on its own jurisdiction. 129. Principles of competence-competence have positive and negative connotations. As a positive implication, the Arbitral Tribunals are declared competent and authorised by law to rule as to their jurisdiction and decide non-arbitrability questions. In case of expressed negative effect, the statute would govern and should be followed. Implied negative effect curtails and constrains interference by the court at the referral stage by necessary implication in order to allow the Arbitral Tribunal to rule as to their jurisdiction and decide non-arbitrability questions. As per the negative effect, courts at the referral stage are not to decide on merits, except when permitted by the legislation either expressly or by necessary implication, such questions of non-arbitrability. Such prioritisation of the Arbitral Tribunal over the courts can be partial and limited when the legislation provides for some or restricted scrutiny at the \u201cfirst look\u201d referral stage. We would, therefore, examine the principles of competence-competence with reference to the legislation, that is, the Arbitration Act. 130. Section 16(1) of the Arbitration Act accepts and empowers the Arbitral Tribunal to rule on its own jurisdiction including a ruling on the objections, with respect to all aspects of non- arbitrability including validity of the arbitration agreement. A party opposing arbitration, as per sub-section (2), should raise the objection to jurisdiction of the tribunal before the Arbitral Tribunal, not later than the submission of statement of defence. However, participation in the appointment procedure or appointing an arbitrator would not preclude and prejudice any party from raising an objection to the jurisdiction. Obviously, the intent is to curtail delay and expedite appointment of the Arbitral Tribunal. The clause also indirectly accepts that appointment of an arbitrator is different from the issue and question of jurisdiction and non-arbitrability. As per sub-section (3), any objection that the Arbitral Tribunal is exceeding the scope of its authority should be raised as soon as the matter arises. However, the Arbitral Tribunal, as per sub-section (4), is empowered to admit a plea regarding lack of jurisdiction beyond the periods specified in sub-sections (2) and (3) if it considers that the delay is justified. As per the mandate of sub-section (5) when objections to the jurisdiction under sub-sections (2) and (3) are rejected, the Arbitral Tribunal can continue with the proceedings and pass the arbitration award. A party aggrieved is at liberty to file an application for setting aside such arbitral award under Section 34 of the Arbitration Act. Sub-section (3) to Section 8 in specific terms permits an Arbitral Tribunal to continue with the arbitration proceeding and make an award, even when an application under sub-section (1) to Section 8 is pending consideration of the court/forum. Therefore, pendency of the judicial proceedings even before the court is not by itself a bar for the Arbitral Tribunal to proceed and make an award. Whether the court should stay arbitral proceedings or appropriate deference by the Arbitral Tribunal are distinctly different aspects and not for us to elaborate in the present reference.\u201d Again, insofar as the facts of the present case are concerned, paragraph 148 of the aforesaid judgment is apposite and states as follows: \u201c148. Section 43(1) of the Arbitration Act states that the Limitation Act, 1963 shall apply to arbitrations as it applies to court proceedings. Sub-section (2) states that for the purposes of the Arbitration Act and Limitation Act, arbitration shall be deemed to have commenced on the date referred to in Section 21. Limitation law is procedural and normally disputes, being factual, would be for the arbitrator to decide guided by the facts found and the law applicable. The court at the referral stage can interfere only when it is manifest that the claims are ex facie time-barred and dead, or there is no subsisting dispute. All other cases should be referred to the Arbitral Tribunal for decision on merits. Similar would be the position in case of disputed \u201cno- claim certificate\u201d or defence on the plea of novation and \u201caccord and satisfaction\u201d. As observed in Premium Nafta Products Ltd. [Fili Shipping Co. Ltd. v. Premium Nafta Products Ltd., 2007 UKHL 40 : 2007 Bus LR 1719 (HL)], it is not to be expected that commercial men while entering transactions inter se would knowingly create a system which would require that the court should first decide whether the contract should be rectified or avoided or rescinded, as the case may be, and then if the contract is held to be valid, it would require the arbitrator to resolve the issues that have arisen.\u201d (emphasis supplied) 7. A recent judgment, Pravin Electricals Pvt. Ltd. v. Galaxy Infra and Engineering Pvt. Ltd., 2021 SCC OnLine SC 190, referred in detail to Vidya Drolia (supra) in paragraphs 15 to 18 as follows: \u201c15. Dealing with \u201cprima facie\u201d examination under Section 8, as amended, the Court then held [Vidya Drolia v. Durga Trading Corporation, (2021) 2 SCC 1]: \u201c134. Prima facie examination is not full review but a primary first review to weed out manifestly and ex facie non-existent and invalid arbitration agreements and non-arbitrable disputes. The prima facie review at the reference stage is to cut the deadwood and trim off the side branches in straightforward cases where dismissal is barefaced and pellucid and when on the facts and law the litigation must stop at the first stage. Only when the court is certain that no valid arbitration agreement exists or the disputes/subject-matter are not arbitrable, the application under Section 8 would be rejected. At this stage, the court should not get lost in thickets and decide debatable questions of facts. Referral proceedings are preliminary and summary and not a mini trial. This necessarily reflects on the nature of the jurisdiction exercised by the court and in this context, the observations of B.N. Srikrishna, J. of \u201cplainly arguable\u201d case in Shin-Etsu Chemical Co. Ltd. [Shin- Etsu Chemical Co. Ltd. v. Aksh Optifibre Ltd., (2005) 7 SCC 234] are of importance and relevance. Similar views are expressed by this Court in Vimal Kishor Shah [Vimal Kishor Shah v. Jayesh Dinesh Shah, (2016) 8 SCC 788 : (2016) 4 SCC (Civ) 303] wherein the test applied at the pre-arbitration stage was whether there is a \u201cgood arguable case\u201d for the existence of an arbitration agreement. 16. The parameters of review under Sections 8 and 11 were then laid down thus: \u201c138. In the Indian context, we would respectfully adopt the three categories in Boghara Polyfab (P) Ltd. [National Insurance Co. Ltd. v. Boghara Polyfab (P) Ltd., (2009) 1 SCC 267 : (2009) 1 SCC (Civ) 117] The first category of issues, namely, whether the party has approached the appropriate High Court, whether there is an arbitration agreement and whether the party who has applied for reference is party to such agreement would be subject to more thorough examination in comparison to the second and third categories/issues which are presumptively, save in exceptional cases, for the arbitrator to decide. In the first category, we would add and include the question or issue relating to whether the cause of action relates to action in personam or rem; whether the subject-matter of the dispute affects third-party rights, have erga omnes effect, requires centralised adjudication; whether the subject-matter relates to inalienable sovereign and public interest functions of the State; and whether the subject-matter of dispute is expressly or by necessary implication non-arbitrable as per mandatory statute(s). Such questions arise rarely and, when they arise, are on most occasions questions of law. On the other hand, issues relating to contract formation, existence, validity and non-arbitrability would be connected and intertwined with the issues underlying the merits of the respective disputes/claims. They would be factual and disputed and for the Arbitral Tribunal to decide. 139. We would not like to be too prescriptive, albeit observe that the court may for legitimate reasons, to prevent wastage of public and private resources, can exercise judicial discretion to conduct an intense yet summary prima facie review while remaining conscious that it is to assist the arbitration procedure and not usurp jurisdiction of the Arbitral Tribunal. Undertaking a detailed full review or a long-drawn review at the referral stage would obstruct and cause delay undermining the integrity and efficacy of arbitration as a dispute resolution mechanism. Conversely, if the court becomes too reluctant to intervene, it may undermine effectiveness of both the arbitration and the court. There are certain cases where the prima facie examination may require a deeper consideration. The court's challenge is to find the right amount of and the context when it would examine the prima facie case or exercise restraint. The legal order needs a right balance between avoiding arbitration obstructing tactics at referral stage and protecting parties from being forced to arbitrate when the matter is clearly non- arbitrable. [Ozlem Susler, \u201cThe English Approach to Competence-Competence\u201d Pepperdine Dispute Resolution Law Journal, 2013, Vol. 13.] 140. Accordingly, when it appears that prima facie review would be inconclusive, or on consideration inadequate as it requires detailed examination, the matter should be left for final determination by the Arbitral Tribunal selected by the parties by consent. The underlying rationale being not to delay or defer and to discourage parties from using referral proceeding as a ruse to delay and obstruct. In such cases a full review by the courts at this stage would encroach on the jurisdiction of the Arbitral Tribunal and violate the legislative scheme allocating jurisdiction between the courts and the Arbitral Tribunal. Centralisation of litigation with the Arbitral Tribunal as the primary and first adjudicator is beneficent as it helps in quicker and efficient resolution of disputes.\u201d 17. The Court then examined the meaning of the expression \u201cexistence\u201d which occurs in Section 11(6A) and summed up its discussion as follows: \u201c146. We now proceed to examine the question, whether the word \u201cexistence\u201d in Section 11 merely refers to contract formation (whether there is an arbitration agreement) and excludes the question of enforcement (validity) and therefore the latter falls outside the jurisdiction of the court at the referral stage. On jurisprudentially and textualism it is possible to differentiate between existence of an arbitration agreement and validity of an arbitration agreement. Such interpretation can draw support from the plain meaning of the word \u201cexistence\u201d. However, it is equally possible, jurisprudentially and on contextualism, to hold that an agreement has no existence if it is not enforceable and not binding. Existence of an arbitration agreement presupposes a valid agreement which would be enforced by the court by relegating the parties to arbitration. Legalistic and plain meaning interpretation would be contrary to the contextual background including the definition clause and would result in unpalatable consequences. A reasonable and just interpretation of \u201cexistence\u201d requires understanding the context, the purpose and the relevant legal norms applicable for a binding and enforceable arbitration agreement. An agreement evidenced in writing has no meaning unless the parties can be compelled to adhere and abide by the terms. A party cannot sue and claim rights based on an unenforceable document. Thus, there are good reasons to hold that an arbitration agreement exists only when it is valid and legal. A void and unenforceable understanding is no agreement to do anything. Existence of an arbitration agreement means an arbitration agreement that meets and satisfies the statutory requirements of both the Arbitration Act and the Contract Act and when it is enforceable in law. 147. We would proceed to elaborate and give further reasons: 147.1. In Garware Wall Ropes Ltd. [Garware Wall Ropes Ltd. v. Coastal Marine Constructions & Engg. Ltd., (2019) 9 SCC 209 : (2019) 4 SCC (Civ) 324], this Court had examined the question of stamp duty in an underlying contract with an arbitration clause and in the context had drawn a distinction between the first and second part of Section 7(2) of the Arbitration Act, albeit the observations made and quoted above with reference to \u201cexistence\u201d and \u201cvalidity\u201d of the arbitration agreement being apposite and extremely important, we would repeat the same by reproducing para 29 thereof: (SCC p. 238) \u201c29. This judgment in Hyundai Engg. Case [United India Insurance Co. Ltd. v. Hyundai Engg. & Construction Co. Ltd., (2018) 17 SCC 607 : (2019) 2 SCC (Civ) 530] is important in that what was specifically under consideration was an arbitration clause which would get activated only if an insurer admits or accepts liability. Since on facts it was found that the insurer repudiated the claim, though an arbitration clause did \u201cexist\u201d, so to speak, in the policy, it would not exist in law, as was held in that judgment, when one important fact is introduced, namely, that the insurer has not admitted or accepted liability. Likewise, in the facts of the present case, it is clear that the arbitration clause that is contained in the sub- contract would not \u201cexist\u201d as a matter of law until the sub-contract is duly stamped, as has been held by us above. The argument that Section 11(6-A) deals with \u201cexistence\u201d, as opposed to Section 8, Section 16 and Section 45, which deal with \u201cvalidity\u201d of an arbitration agreement is answered by this Court's understanding of the expression \u201cexistence\u201d in Hyundai Engg. case [United India Insurance Co. Ltd. v. Hyundai Engg. & Construction Co. Ltd., (2018) 17 SCC 607 : (2019) 2 SCC (Civ) 530] , as followed by us.\u201d Existence and validity are intertwined, and arbitration agreement does not exist if it is illegal or does not satisfy mandatory legal requirements. Invalid agreement is no agreement. 147.2. The court at the reference stage exercises judicial powers. \u201cExamination\u201d, as an ordinary expression in common parlance, refers to an act of looking or considering something carefully in order to discover something (as per Cambridge Dictionary). It requires the person to inspect closely, to test the condition of, or to inquire into carefully (as per Merriam- Webster Dictionary). It would be rather odd for the court to hold and say that the arbitration agreement exists, though ex facie and manifestly the arbitration agreement is invalid in law and the dispute in question is non-arbitrable. The court is not powerless and would not act beyond jurisdiction, if it rejects an application for reference, when the arbitration clause is admittedly or without doubt is with a minor, lunatic or the only claim seeks a probate of a will. 147.3. Most scholars and jurists accept and agree that the existence and validity of an arbitration agreement are the same. Even Stavros Brekoulakis accepts that validity, in terms of substantive and formal validity, are questions of contract and hence for the court to examine. 147.4. Most jurisdictions accept and require prima facie review by the court on non-arbitrability aspects at the referral stage. 147.5. Sections 8 and 11 of the Arbitration Act are complementary provisions as was held in Patel Engg. Ltd. [SBP & Co. v. Patel Engg. Ltd., (2005) 8 SCC 618]. The object and purpose behind the two provisions is identical to compel and force parties to abide by their contractual understanding. This being so, the two provisions should be read as laying down similar standard and not as laying down different and separate parameters. Section 11 does not prescribe any standard of judicial review by the court for determining whether an arbitration agreement is in existence. Section 8 states that the judicial review at the stage of reference is prima facie and not final. Prima facie standard equally applies when the power of judicial review is exercised by the court under Section 11 of the Arbitration Act. Therefore, we can read the mandate of valid arbitration agreement in Section 8 into mandate of Section 11, that is, \u201cexistence of an arbitration agreement\u201d. 147.6. Exercise of power of prima facie judicial review of existence as including validity is justified as a court is the first forum that examines and decides the request for the referral. Absolute \u201chands off\u201d approach would be counterproductive and harm arbitration, as an alternative dispute resolution mechanism. Limited, yet effective intervention is acceptable as it does not obstruct but effectuates arbitration. 147.7. Exercise of the limited prima facie review does not in any way interfere with the principle of competence-competence and separation as to obstruct arbitration proceedings but ensures that vexatious and frivolous matters get over at the initial stage. 147.8. Exercise of prima facie power of judicial review as to the validity of the arbitration agreement would save costs and check harassment of objecting parties when there is clearly no justification and a good reason not to accept plea of non-arbitrability. In Subrata Roy Sahara v. Union of India [Subrata Roy Sahara v. Union of India, (2014) 8 SCC 470 : (2014) 4 SCC (Civ) 424 : (2014) 3 SCC (Cri) 712] , this Court has observed: (SCC p. 642, para 191) \u201c191. The Indian judicial system is grossly afflicted with frivolous litigation. Ways and means need to be evolved to deter litigants from their compulsive obsession towards senseless and ill-considered claims. One needs to keep in mind that in the process of litigation, there is an innocent sufferer on the other side of every irresponsible and senseless claim. He suffers long-drawn anxious periods of nervousness and restlessness, whilst the litigation is pending without any fault on his part. He pays for the litigation from out of his savings (or out of his borrowings) worrying that the other side may trick him into defeat for no fault of his. He spends invaluable time briefing counsel and preparing them for his claim. Time which he should have spent at work, or with his family, is lost, for no fault of his. Should a litigant not be compensated for what he has lost for no fault? The suggestion to the legislature is that a litigant who has succeeded must be compensated by the one who has lost. The suggestion to the legislature is to formulate a mechanism that anyone who initiates and continues a litigation senselessly pays for the same. It is suggested that the legislature should consider the introduction of a \u201cCode of Compulsory Costs\u201d.\u201d 147.9. Even in Duro Felguera [Duro Felguera, S.A. v. Gangavaram Port Ltd., (2017) 9 SCC 729 : (2017) 4 SCC (Civ) 764], Kurian Joseph, J., in para 52, had referred to Section 7(5) and thereafter in para 53 referred to a judgment of this Court in M.R. Engineers & Contractors (P) Ltd. v. Som Datt Builders Ltd. [M.R. Engineers & Contractors (P) Ltd. v. Som Datt Builders Ltd., (2009) 7 SCC 696 : (2009) 3 SCC (Civ) 271] to observe that the analysis in the said case supports the final conclusion that the memorandum of understanding in the said case did not incorporate an arbitration clause. Thereafter, reference was specifically made to Patel Engg. Ltd. [SBP & Co. v. Patel Engg. Ltd., (2005) 8 SCC 618] and Boghara Polyfab (P) Ltd. [National Insurance Co. Ltd. v. Boghara Polyfab (P) Ltd., (2009) 1 SCC 267 : (2009) 1 SCC (Civ) 117] to observe that the legislative policy is essential to minimise court\u2019s interference at the pre- arbitral stage and this was the intention of sub-section (6) to Section 11 of the Arbitration Act. Para 48 in Duro Felguera [Duro Felguera, S.A. v. Gangavaram Port Ltd., (2017) 9 SCC 729 : (2017) 4 SCC (Civ) 764] specifically states that the resolution has to exist in the arbitration agreement, and it is for the court to see if the agreement contains a clause which provides for arbitration of disputes which have arisen between the parties. Para 59 is more restrictive and requires the court to see whether an arbitration agreement exists \u2014 nothing more, nothing less. Read with the other findings, it would be appropriate to read the two paragraphs as laying down the legal ratio that the court is required to see if the underlying contract contains an arbitration clause for arbitration of the disputes which have arisen between the parties \u2014 nothing more, nothing less. Reference to decisions in Patel Engg. Ltd. [SBP & Co. v. Patel Engg. Ltd., (2005) 8 SCC 618] and Boghara Polyfab (P) Ltd. [National Insurance Co. Ltd. v. Boghara Polyfab (P) Ltd., (2009) 1 SCC 267 : (2009) 1 SCC (Civ) 117] was to highlight that at the reference stage, post the amendments vide Act 3 of 2016, the court would not go into and finally decide different aspects that were highlighted in the two decisions. 147.10. In addition to Garware Wall Ropes Ltd. case [Garware Wall Ropes Ltd. v. Coastal Marine Constructions & Engg. Ltd., (2019) 9 SCC 209 : (2019) 4 SCC (Civ) 324] , this Court in Narbheram Power & Steel (P) Ltd. [Oriental Insurance Co. Ltd. v. Narbheram Power & Steel (P) Ltd., (2018) 6 SCC 534 : (2018) 3 SCC (Civ) 484] and Hyundai Engg. & Construction Co. Ltd. [United India Insurance Co. Ltd. v. Hyundai Engg. & Construction Co. Ltd., (2018) 17 SCC 607 : (2019) 2 SCC (Civ) 530] , both decisions of three Judges, has rejected the application for reference in the insurance contracts holding that the claim was beyond and not covered by the arbitration agreement. The Court felt that the legal position was beyond doubt as the scope of the arbitration clause was fully covered by the dictum in Vulcan Insurance Co. Ltd. [Vulcan Insurance Co. Ltd. v. Maharaj Singh, (1976) 1 SCC 943] Similarly, in PSA Mumbai Investments Pte. Ltd. [PSA Mumbai Investments Pte. Ltd. v. Jawaharlal Nehru Port Trust, (2018) 10 SCC 525 : (2019) 1 SCC (Civ) 1] , this Court at the referral stage came to the conclusion that the arbitration clause would not be applicable and govern the disputes. Accordingly, the reference to the Arbitral Tribunal was set aside leaving the respondent to pursue its claim before an appropriate forum. 147.11. The interpretation appropriately balances the allocation of the decision-making authority between the court at the referral stage and the arbitrators' primary jurisdiction to decide disputes on merits. The court as the judicial forum of the first instance can exercise prima facie test jurisdiction to screen and knock down ex facie meritless, frivolous and dishonest litigation. Limited jurisdiction of the courts ensures expeditious, alacritous and efficient disposal when required at the referral stage.\u201d 18. The Bench finally concluded: \u201c153. Accordingly, we hold that the expression \u201cexistence of an arbitration agreement\u201d in Section 11 of the Arbitration Act, would include aspect of validity of an arbitration agreement, albeit the court at the referral stage would apply the prima facie test on the basis of principles set out in this judgment. In cases of debatable and disputable facts, and good reasonable arguable case, etc., the court would force the parties to abide by the arbitration agreement as the Arbitral Tribunal has primary jurisdiction and authority to decide the disputes including the question of jurisdiction and non-arbitrability. 154. Discussion under the heading \u201cWho Decides Arbitrability?\u201d can be crystallised as under: 154.1. Ratio of the decision in Patel Engg. Ltd. [SBP & Co. v. Patel Engg. Ltd., (2005) 8 SCC 618] on the scope of judicial review by the court while deciding an application under Sections 8 or 11 of the Arbitration Act, post the amendments by Act 3 of 2016 (with retrospective effect from 23-10-2015) and even post the amendments vide Act 33 of 2019 (with effect from 9-8-2019), is no longer applicable. 154.2. Scope of judicial review and jurisdiction of the court under Sections 8 and 11 of the Arbitration Act is identical but extremely limited and restricted. 154.3. The general rule and principle, in view of the legislative mandate clear from Act 3 of 2016 and Act 33 of 2019, and the principle of severability and competence-competence, is that the Arbitral Tribunal is the preferred first authority to determine and decide all questions of non-arbitrability. The court has been conferred power of \u201csecond look\u201d on aspects of non- arbitrability post the award in terms of sub-clauses (i), (ii) or (iv) of Section 34(2)(a) or sub-clause (i) of Section 34(2)(b) of the Arbitration Act. 154.4. Rarely as a demurrer the court may interfere at Section 8 or 11 stage when it is manifestly and ex facie certain that the arbitration agreement is non- existent, invalid or the disputes are non-arbitrable, though the nature and facet of non-arbitrability would, to some extent, determine the level and nature of judicial scrutiny. The restricted and limited review is to check and protect parties from being forced to arbitrate when the matter is demonstrably \u201cnon-arbitrable\u201d and to cut off the deadwood. The court by default would refer the matter when contentions relating to non- arbitrability are plainly arguable; when consideration in summary proceedings would be insufficient and inconclusive; when facts are contested; when the party opposing arbitration adopts delaying tactics or impairs conduct of arbitration proceedings. This is not the stage for the court to enter into a mini trial or elaborate review so as to usurp the jurisdiction of the Arbitral Tribunal but to affirm and uphold integrity and efficacy of arbitration as an alternative dispute resolution mechanism. 155. Reference is, accordingly, answered.\u201d The Court then concluded, on the facts of that case, that it would be unsafe to conclude one way or the other that an arbitration agreement exists between the parties on a prima facie review of facts of that case, and that a deeper consideration must be left to an arbitrator, who is to examine the documentary and oral evidence and then arrive at a conclusion. 8. Likewise, in Bharat Sanchar Nigam Ltd. v. Nortel Networks India Pvt. Ltd., 2021 SCC OnLine SC 207, another Division Bench of this Court referred to Vidya Drolia (supra) and concluded: \u201c39. The upshot of the judgment in Vidya Drolia [Vidya Drolia v. Durga Trading Corporation, (2021) 2 SCC 1] is affirmation of the position of law expounded in Duro Felguera [Duro Felguera, S.A. v. Gangavaram Port Ltd., (2017) 9 SCC 729] and Mayavati Trading [Mayavati Trading (P) Ltd. v. Pradyuat Deb Burman, (2019) 8 SCC 714], which continue to hold the field. It must be understood clearly that Vidya Drolia [Vidya Drolia v. Durga Trading Corporation, (2021) 2 SCC 1] has not resurrected the pre-amendment position on the scope of power as held in SBP & Co. v. Patel Engineering [SBP & Co. v. Patel Engg. Ltd., (2005) 8 SCC 618]. It is only in the very limited category of cases, where there is not even a vestige of doubt that the claim is ex facie time- barred, or that the dispute is non-arbitrable, that the court may decline to make the reference. However, if there is even the slightest doubt, the rule is to refer the disputes to arbitration, otherwise it would encroach upon what is essentially a matter to be determined by the tribunal.\u201d 9. Judged by the aforesaid tests, it is obvious that whether the MoU has been novated by the SHA dated 12.04.1996 requires a detailed consideration of the clauses of the two Agreements, together with the surrounding circumstances in which these Agreements were entered into, and a full consideration of the law on the subject. None of this can be done given the limited jurisdiction of a court under Section 11 of the 1996 Act. As has been held in paragraph 148 of Vidya Drolia (supra), detailed arguments on whether an agreement which contains an arbitration clause has or has not been novated cannot possibly be decided in exercise of a limited prima facie review as to whether an arbitration agreement exists between the parties. Also, this case does not fall within the category of cases which ousts arbitration altogether, such as matters which are in rem proceedings or cases which, without doubt, concern minors, lunatics or other persons incompetent to contract. There is nothing vexatious or frivolous in the plea taken by the Appellant. On the contrary, a Section 11 court would refer the matter when contentions relating to non-arbitrability are plainly arguable, or when facts are contested. The court cannot, at this stage, enter into a mini trial or elaborate review of the facts and law which would usurp the jurisdiction of the arbitral tribunal. 10. The impugned judgment was wholly incorrect in deciding that the plea of doctrine of kompetenz-kompetenz and reliance on Section 11(6A) of the 1996 Act, as expounded in Duro Felguera (supra) and Mayavati Trading (supra) were not applicable to the case in hand. Apart from going into a detailed consideration of the MoU and the SHA, which is exclusively within the jurisdiction of the arbitral tribunal, the learned Single Judge, while considering clause 28 of the SHA to arrive at the finding that any kind of agreement as detailed in clause 28.2 between the parties shall stand superseded, does not even refer to clause 28.1. No consideration has been given to the separate and distinct subject matter of the MoU and the SHA. Also, Kishorilal Gupta (supra) and Damodar Valley Corporation (supra) are judgments which deal with novation in the context of the Arbitration Act, 1940, which had a scheme completely different from the scheme contained in Section 16 read with Section 11(6A) of the 1996 Act. 11. For all these reasons, we set aside the judgment of the High Court and refer the parties to the arbitration of a sole arbitrator, being Justice Aftab Alam (retired Judge of this Court), who will decide the dispute between the parties without reference to any observations made by this Court, which are only prima facie in nature. 12. It is made clear that Agenda Nos. 4 and 8, circulated in the notice dated 31.12.2019, for the Board Meeting scheduled to be held on 15.01.2020, will continue to remain deferred until the learned sole arbitrator passes interim orders varying or setting aside this order, or until a final Award is delivered, depending upon whether a party applies under Section 17 of 1996 Act. Civil Appeal No. 975 of 2021 is allowed in the aforesaid terms. Civil Appeal No. 976 of 2021 13. Consequently, in light of the directions in paragraphs 11 and 12 hereinabove, Civil Appeal No. 976 of 2021 is accordingly disposed of. \u2026\u2026\u2026\u2026\u2026\u2026\u2026.......................J. [ ROHINTON FALI NARIMAN ] \u2026\u2026\u2026\u2026\u2026\u2026\u2026.......................J. [ B.R. GAVAI ] \u2026\u2026\u2026\u2026\u2026\u2026\u2026.......................J. [ HRISHIKESH ROY ] New Delhi; April 06, 2021.",
        "37724412": "1 apeal67.00 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR. CRIMINAL APPEAL NO.67 OF 2000 1) Ramkrushna s/o Barkaji Gulhane, _ (Appeal is dismissed Aged about 40 years, as abated vide order 16-7-2015) 2) Laxman s/o Barkaji Gulhane, Aged about 42 years, 3) Ambu Alias Amrut Babansa Gulhane, Aged about 22 years, 4) Devidas s/o Babansa Gulhane, Aged about 32 years, 5) Dayaram s/o Barkaji Gulhane, Aged about 38 years, 6) Babansa s/o Barkaji Gulhane, -(Appeal is dismissed Aged about 60 years, as abated vide order 16-7-2015) All Appellant Nos. 1 to 6 are Agriculturists and all of them are the residents of Pethpura, MorshiMorshi, District - Amravati. .... APPELLANTS VERSUS The State of Maharashtra, through Police Station Officer, Police Station Morshi, District Amravati. .... RESPONDENT ______________________________________________________________ Shri P.D. Sharma, Advocate for the appellant, Mrs. M.H. Deshmukh, Addl.P.P. for the respondent. ______________________________________________________________ 2 apeal67.00 CORAM : ROHIT B. DEO, J. DATE OF RESERVING THE JUDGMENT : 07-08-2017 DATE OF PRONOUNCING THE JUDGMENT : 13-11-2017 JUDGMENT : The appellants are aggrieved by the judgment and order dated 17-2-2000 passed by the learned Additional Sessions Judge, Amravati in Sessions Trial 266/1994, by and under which, while acquitting the appellants of offence punishable under Section 307 read with Section 149 of the Indian Penal Code, the learned Sessions Judge was pleased to convict the appellants for offence punishable under Section 148 of the Indian Penal Code and to sentence the appellants to suffer rigorous imprisonment for one year and to payment of fine of Rs.100/-, and to sentence the appellants to suffer rigorous imprisonment for two years and to payment of fine of Rs.200/- for offence punishable under Section 326 read with Section 149 of the Indian Penal Code for causing grievous hurt by dangerous weapon to Marotrao Dhole, and to sentence the appellants to suffer rigorous imprisonment for one year and to payment of fine of Rs.200/- for offence punishable under Section 452 read with Section 149 of the Indian Penal Code and to further sentence the appellants to suffer rigorous imprisonment for six months and to payment of fine of 3 apeal67.00 Rs.100/- for offence punishable under Section 324 read with Section 149 of the Indian Penal Code for causing hurt to Prakash Dhole, Sau. Chanda Ramesh Dhole, Sau. Sunanda Ganesh Dhole and Vijay Marotrao Dhole. Appellant 1 Ramkrushna Barkaji Gulhane and appellant 6 Babansa Barkaji Gulhane died during pendency of the appeal, therefore, the appeal stands abated as against them. 2. Heard Shri P.D. Sharma, learned Counsel for the appellants (hereinafter referred to as the \"accused\") and Mrs. M.H. Deshmukh, learned Additional Public Prosecutor for the respondent. 3. The appellants alongwith six others namely Motiram Barkaji Gulhane, Sanjay Haribhau Gulhane, Vishwas Babansa Gulhane, Kishore Dayaram Gulhane, Ganesh Motiram Gulhane and Vijay Haribhau Gulhane faced trial for having formed an unlawful assembly with the object of assaulting Marotrao Dhole and his family members and in furtherance of common object, for having committed the offence of rioting, house trespass and attempting to commit the murder of Marotrao Dhole and voluntarily causing hurt to his family members. The charge was under Sections 147, 148, 452, 307 and 324 read with 4 apeal67.00 Section 149 of the Indian Penal Code. 4. The prosecution case as is unfolded during the course of trial is that the accused are residents of Pethpura locality of Morshi, District Amravati. The victim Marotrao Dhole, who expired during the pendency of trial was residing in the same locality with family. Prakash Dhole is the son of deceased Marotrao Dhole. Some months prior to the incident, accused Devidas Gulhane purchased the bullock on credit from one Shamu Gond and Prakash Dhole acted as a mediator or broker. Prakash Dhole had guaranteed the payment of the costs of the bullock. Accused Devidas did not make the payment to Shamu Gond. Prakash Dhole, on 05-7-1994, asked Devidas Gulhane to make the payment of the bullock and the response of Devidas Gulhane was to assault Prakash Dhole in respect of which incident Prakash Dhole lodged a report in the police station Morshi. The next day, on 06-7-1994 Marotrao saw Devidas Gulhane and confronted him about the assault on Prakash in the weekly market and berated him for having done so. Immediately thereafter, the accused swooped on the house of Marotrao Dhole armed with sticks. Marotrao Dhole was at the entrance of his house. 5 apeal67.00 He attempted to restrain the accused. All the accused started assaulting Marotrao with sticks, as a result of which Marotrao Dhole suffered fracture of right leg. The accused, then entered into the house of Marotrao and assaulted Prakash Dhole and Vijay Dhole, sons of Marotrao and other family members Smt. Chanda Dhole, Sunanda Dhole, Gitabai Dhole and Godabai Dhole, by sticks. Prakash Dhole rushed to police station Morshi, Police Sub- Inspector Sugandhi came to the spot with his staff. Police Sub- Inspector Sugandhi noticed Marotrao lying injured infront of his house with bleeding injury. Marotrao was taken to Primary Health Centre, Morshi and was examined by one Dr. Sawale. The victim Marotrao Dhole lodged a report with Police Sub-Inspector Sugandhi, on the basis of which offence punishable under Sections 147,148, 323, 452 and 307 read with Section 149 of the Indian Penal Code was registered. On the same day at 9.45 a.m. or thereabout, the accused excluding Vijay Haribhau Gulhane, were arrested. Police Sub-Inspector Sugandhi visited the spot of the incident, drew the spot panchanama, collected mud mixed with blood, the clothes of Marotrao which were stained with blood were produced by Prakash and were seized. During the course of investigation, sticks were seized pursuant to memorandum recorded under Section 27 of the Indian Evidence Act from accused 6 apeal67.00 Laxman, Sanjay, Ambu, Vishwas, Devidas, Kishore and Dayaram Gulhane. In the interregnum, Dr. Sawale examined Marotrao Dhole and his family members. Marotrao Dhole suffered compound fracture on the left leg with fracture of both bones to wit tibia and fibula. Prakash Dhole suffered abrasions on the backside of the left elbow joint and front side of the right forearm. Abrasions and contusions were noticed on the person of Godabai, Chanda, Sunanda, Vijay and Gitabai Dhole. Accused 12-Vijay Gulhane was arrested on 10-7-1994. Investigation ensued and accused 1 to 12 were charge- sheeted in the Court of Judicial Magistrate First Class, Morshi who committed the case to the Sessions Court. The learned Sessions Judge framed charge for offence punishable under Sections 147, 148, 452, 207 and 324 read with Section 149 of the Indian Penal Code. The accused pleaded not guilty and claimed to be tried. 5. The prosecution examined twelve witnesses to bring home the charge including Prakash Dhole (P.W.5), Chanda Dhole (P.W.6), Ramesh Dhole (P.W.7), Sunanda Dhole (P.W.8) and Vijay Dhole (P.W.10) who are injured witnesses. Dr. Sawale is examined as P.W.12. 7 apeal67.00 6. The defence of the accused, as is discernible from the statement recorded under Section 313 of the Criminal Procedure Code is of total denial and false implication. The defence is that Godabai who is the mother of Prakash Dhole contested the election and was defeated. Marotrao Dhole and his family members believed that the accused voted against Godabai and due to grudge, the accused have been falsely implicated. Be it noted, that Marotrao Sakharam Dhole who expired during the trial due to causes entirely unrelated with the injury which suffered during the incident. 7. Shri P.D. Sharma, learned Counsel for the appellant, who has also placed on record written submissions to buttress the oral submissions, canvassed the following submissions : (a) The participation of accused persons in the commission of alleged offence is not conclusively proved by any cogent evidence. (b) The circumstances suggest the possibility of free fight. (c) Injuries on the person of one of the accused (appellant 4) was not only suppressed but no action was taken on the report lodged by him and he was advised to approach the civil Court. (d) The investigating officer referred appellant 4 for medical examination at 7.45 a.m., his presence, therefore, was not possible by 8 apeal67.00 any stretch of imagination on the spot of occurrence at 8-00 a.m. (e) The seizure of the sticks is not proved. (f) The medical evidence suggests that the injuries were possible by fall on the ground. (g) No independent witness was examined. (h) The person who lodged the first information report could not be examined before the Hon'ble Court which has deprived the appellants of their valuable right under Section 145 of the Evidence Act to cross-examine with respect to its contents. (i) The circumstances in which the first information report was lodged, are blurred. (j) There are two other persons namely P.W.5 Prakash and P.W.7 Ramesh who claimed to have went to the police station and lodged the report and such a report lodged by them is suppressed by the prosecution. (k) Omnibus procedure was adopted to record the statements of all the accused on common questionnaire indicating that the prosecution could not successfully demonstrate before the Trial Court individual acts and involvement of the appellants. (l) It was absolutely improper and unsafe to convict the appellants only on the basis of first information report referring to their 9 apeal67.00 involvement. 8. P.W.1 Sharadkumar Abrol is examined to prove the site map of the place of incident Exhibit 96. P.W.2 Ramesh Bargat is examined to prove the spot panchanama and the seizure of the clothes of Marotrao and the sticks produced by accused Laxman, Sanjay, Ambu, Vishwas, Devidas, Kishore and Dayaram. P.W.2 did not support the prosecution and is cross-examined by the learned Additional Public Prosecutor. He admits, in the cross-examination, the signatures on the spot panchanama and the seizure panchanama. P.W.3 Raju Kaple who is examined to prove the spot panchanama, did not support the prosecution and is cross-examined by the learned Additional Public Prosecutor. Nothing is elicited in the cross-examination of P.W.3 Raju to assist the prosecution. P.W.4 Bhimrao Pradhan who is examined as eye-witness did not support the prosecution and was cross-examined by the learned Additional Public Prosecutor. Except a statement that Marotrao sustained injury on leg, nothing material is brought out in the cross- examination by the learned Additional Public Prosecutor to support the prosecution. 10 apeal67.00 P.W.5 Prakash Dhole has narrated the incident which took place a day prior to the assault. P.W.5 has proved report Exhibit 104 which he lodged at police station Morshi alleging that he was slapped by accused 7 Devidas. Prakash has further deposed that on the day of the incident at 8-00 a.m. accused 7 Devidas was confronted by Marotrao. Accused 7 Devidas left the house of Marotrao and within ten minutes all the accused, armed with sticks, came to the house of Marotrao, Prakash was inside the house and Marotrao was outside, is the deposition. Prakash states that all the accused persons assaulted Marotrao who became unconscious. The accused entered the house, broke open the inside door of the house, all the accused assaulted Prakash and when the other family members came to the rescue of Prakash, the accused assaulted Godabai, sisters Gitabai and Durgabai, brothers and sisters-in-law Chandabai and Sunandabai. In the cross- examination, on behalf of accused Ramkrishna, Motiram, Laxman, Sanjay, Ambu and Vishwas, certain omissions are brought on record, which according to me are not significant since the omissions touch only the peripheral or incidental aspects and not the core of the incident. A suggestion is given to Prakash that in view of the grudge nurtured against the accused, they have been falsely implicated. In the cross-examination on behalf of accused Devidas, Kishore, Dayaram, 11 apeal67.00 Babansa and Ganesh, obviously in the response to suggestions, P.W.5 Prakash states thus : \"It is true that my father said to Devidas that he had not paid the amount to his son i.e. myself and on the contrary he assaulted him i.e. me and as such his act was not proper. It is true that Devidas accused No.7 said to my father that he means my father may take action against him as he likes and thereupon I gave two blows by a dried stem of Tur crop. It is not true to say that I had given blows to accused No.7 by stick. I do not know whether the accused No.7 reported to police about the blows given by me to him. It is true that scuffle had ensued between me and my father on one hand and the accused No.7 on the other hand. On hearing, our cry the members of my family came out of the house. It is not true to say that my brother, mother, sister and sister-in- law tried to separate us. It is not true to say that during this incident, I picked up a stick and gave a blow by it, but it unfortunately struck on the leg of my father. It is not true to say that the members of my family sustained abrasions while rescuing and separating me and my father. It is not true to say that the accused No.7 Devidas tried to rescue himself from our hands and we tried to bring him inside the house. It is not true to say that during scuffle my father fell on the cemented poles known as Gawana and sustained injury. It is not true to say that first the accused No.7 had gone to police station for lodging the report and then I went to police station for lodging the report.\" examination, is that accused Devidas, Kishore, Dayaram, Babansa and Ganesh have suggested that there was a physical altercation between 12 apeal67.00 accused 7 Devidas on one hand and Prakash and Marotrao on the other hand. The suggestion is that Marotrao suffered injury due to blow inflicted by Prakash who was intending to assault Devidas. The suggestion is that the other family members of P.W.5 Prakash suffered abrasions in the process of rescuing and separating P.W.5 Prakash and Marotrao. It is suggested to Prakash that in the scuffle Marotrao fell on cemented pole and sustained injury. P.W.6 Chanda Dhole has deposed that the family members attempted to save Prakash from the assault, however, P.W.6 Chanda and other family members also bore the brunt of the assault. In the cross-examination, a few minor omissions are elicited. The witness is suggested that on the day of the incident the family members of the witness assaulted accused 7 Devidas, which suggestion is denied. The cross-examination also brings on record the inter se relationship between the accused and the family of the witness and the fact that Marotrao knew all the twelve accused. P.W.7 Ramesh Dhole is the son of Marotrao and brother of Prakash. He states that he was standing beyond the main road which passes infront of his resident. The witness has deposed that all the accused came to his house with sticks. They assaulted his father Marotrao who collapsed on the spot having received stick blows. All 13 apeal67.00 the accused entered the house. The witness, who till then was standing near the small bridge which is beyond the main road, rushed to the house. The accused persons assaulted Prakash and when other family members attempted to rescue Prakash, they were also assaulted. Ramesh went to police station Morshi and reported the incident. In the cross-examination, the said witness states that each of the accused assaulted each of the seven members of the family who were inside the house. The witness denies that there was an altercation between Marotrao and Prakash on one hand and accused 7 Devidas on the other, prior to the incident. However, in the cross-examination on behalf of accused Devidas, Kishore, Dayaram, Babansa, Ganesh and Vijay, the witness has admitted an altercation between Marotrao and Prakash on one hand and accused 7 Devidas, on the other. P.W.8 Sunanda Dhole has deposed that on the day of the incident at 8-00 a.m. all the accused entered her house armed with sticks, damaged the doors of the house, dragged her brother-in-law Prakash by holding his hair and assaulted him with sticks. When P.W.8 intervened, she was hit with stick on right hand, is the deposition. The other members of the family also received stick blows. The witness states that when the family members came out of the house, Marotrao was seen lying in the courtyard by the side of the tar road with 14 apeal67.00 bleeding injury. P.W.9 Savitribai Kumbhare has deposed as regards the altercation between Prakash and accused 7 Devidas on the issue of payment of the price of bullock. P.W.10 Vijay Dhole states that on 06-7-1994 at 8-00 a.m. when he was resting on the cot inside the house, he heard commotion. He peeped through the window and saw Marotrao lying on the road. All the accused persons had assaulted Marotrao with sticks, is the deposition. Accused entered the house, damaged the doors and assaulted Prakash and when other members of the family tried to save Prakash, they were also assaulted with stick blows, is the deposition. In the cross-examination on behalf of accused 7 to 12, it is brought on record that on both sides of the road infront of the house, there used to be traffic since morning and that during the incident since Marotrao and other family members raised alarm, about 50 persons had gathered near the place of incident including the neighbours of the witness. Although the witness admits that the accused did not work or canvas for her mother during election campaign, he denies the suggestion that his family was not on good terms with the accused since the election. P.W.11 Mohan Sugandhi is the investigating officer. It is brought out in the cross-examination of the investigating officer that 15 apeal67.00 the station diary dated 06-7-1994 reveals that at about 6-30 a.m. accused 7 Devidas had lodged report in the police station to the effect that he was assaulted by Marotrao Dhole, Prakash Dhole and Ganesh Dhole. It is further elicited that accused 7 Devidas was sent to hospital at 7.45 a.m. and that he was arrested on 06-7-1995 and the arrest panchanama was prepared at 9-45 a.m. The investigating officer admits that the doctor issued certificate as regards the injuries suffered by accused 7 Devidas which is not produced alongwith the charge- sheet. The investigating officer further states in the cross-examination that he registered the offence at 9-30 a.m. and arrested 11 accused at 9-45 a.m. Except the statement of Marotrao and the medical certificate, the investigating officer did not have any papers when he arrested the accused persons. Be it noted, that in the examination-in-chief, the investigating officer refers to the statement of Marotrao as first information report which is proved as Exhibit 114. The investigating officer states that he arrested accused 1 to 11 and then prepared the spot panchanama. He deposes as to the seizure of sticks from accused 7 Devidas and proves memorandum Exhibit 119. The investigating officer proves seizure memorandum recorded in view of statement given by accused 5 Ambu (Exhibit 122). Similarly he states that 16 apeal67.00 accused 8 Kishore made a statement that he kept a stick at his house, accordingly memorandum was recorded and the admissible portion is marked Exhibit 124. The seizure panchanama is proved and marked Exhibit 125. Memorandum of accused 6 Vishwas is proved and marked Exhibit 126 and the seizure panchanama is proved and marked Exhibit 127. Memorandum of accused 9 Dayaram is proved and marked Exhibit 128 and the seizure panchanama is proved and marked Exhibit 129. Memorandum of accused 4 Sanjay is proved and marked Exhibit 130 and the seizure panchanama is marked Exhibit 131. The memorandum of accused 3 Laxman is proved and marked Exhibit 132 and the seizure panchanama is marked Exhibit 133. The investigating officer states that all the sticks were seized on 10-7-1994. P.W.12 Dr. Baban Sawale who is examined to prove the injury certificate Exhibit 136 issued pursuant to the medical examination of injured Marotrao. P.W.12 has deposed that Marotrao suffered compound fracture on left leg, both bones tibia and fibula were found fractured and there was lacerated wound 4\" below left knee joint horizontal of size 2\" x \u00bd \" bone deep. A contusion swelling on backside of left chest was also noticed. P.W.12 has deposed that Marotrao Dhole was referred to General Hospital, Amravati for further treatment. 17 apeal67.00 P.W.12 on examining Prakash Dhole issued medical certificate dated 06-7-1994 Exhibit 137 and he has deposed that Prakash Dhole suffered two abrasions, one on the backside of left elbow and the other on the front side of right forearm. P.W.12 examined Godabai Dhole who suffered two abrasions and two contusions. The medical certificate is Exhibit 138. Chanda Dhole suffered a contusion on dorsal side of ring and little finger of left hand which is Exhibit 139. Sunanda Dhole suffered a contusion on dorsal side of right hand of size 2\" x 1\" and the medical certificate is Exhibit 140. Vijay Dhole suffered one contusion on backside of chest on right side middle to scapula region, on the right side/middle to scapula region of 3\" x 1\" dimension and one abrasion on dorsal side of ring finger of left hand and the medical certificate is Exhibit 141. While Gitabai Dhole suffered contusion on backside of chest on the left side of size 3\" x 2\". In the cross-examination, P.W.12 has admitted that injuries suffered by Chanda, Godabai, Vijay, Sunanda, Gitabai and Prakash are simple in nature and could be caused for fall on hard and rough surface. 9. A minute scrutiny of the evidence on record would reveal that not a single witness attributes any specific role to the twelve 18 apeal67.00 accused implicated in the incident of assault on Marotrao and the other members of the family. The only independent witness who is examined did not support the prosecution. Marotrao expired before the commencement of the trial. The other witnesses who are members of the family have in unison deposed that all the twelve accused were members of unlawful assembly, assaulted Marotrao and then barged in the house and assaulted Prakash and other family members who attempted to rescue Prakash. 10. The learned Sessions Judge was pleased to acquit accused 2 Motiram, accused 4 Sanjay, accused 6 Vishwas, accused 8 Kishore, accused 11 Ganesh and accused 12 Vijay holding that since they were not named in the first information report, there was no material available with the investigating officer to arrest the said accused. The learned Sessions Judge has relied on the seizure of the sticks proved through the investigating officer, but then, the seizure of sticks is also from the accused who are acquitted. The investigation is clearly unfair. It is brought on record in the cross-examination of the investigating officer, that accused 7 Devidas lodged a report at police station Morshi to the effect that he was assaulted by Marotrao, Prakash and Ganesh and that he was sent for medical examination at 7-45 a.m. It is 19 apeal67.00 axiomatic that accused 7 Devidas could not have been involved in the incident which according to the prosecution occurred at 8-00 a.m. or thereabout. The injury certificate as regards Devidas is suppressed. The fact that Devidas was implicated in the incident, is suggestive of either false or over implication and unfair investigation. 11. The finding recorded by the learned Sessions Judge that the prosecution has proved that Marotrao suffered grievous hurt is, in my opinion, unsustainable. Concededly, it is not established by adducing evidence of x-ray or other radiological evidence that Marotrao suffered fracture. Ordinarily, it would be unsafe to assume as a fact that a person has suffered fracture unless the x-ray reports are proved by examining the radiologist. It is not even the case of the prosecution, that the fracture was diagnosed with the assistance of the radiology report. It would be apposite to refer to the following observations in the case of Faizan Ahmed Abdul Wahab Shah vs. The State of Maharashtra reported in 2014 ALL MR (Cri.) 4841. \"20. It is seen that the injuries are not proved to be grievous hurt. There cannot be a presumption that the grievous hurt was caused without formal proof of the fact of fracture. The fact of existence of fracture cannot be diagnosed and certified in absence of proof of x-ray plates, unless the fact of fractured 20 apeal67.00 bones is perceivable barely of perception by naked eyes and sheerly by clinical examination, its being vivid and palpable. Therefore, proof of x-ray plates was necessary particularly, the appellant had made an attempt to retract the admission of medical certificate/discharge summary\" 12. In my opinion, the seizure of sticks to which only the investigating officer has testified, is of little significance. The distinction made by the learned Sessions Judge between the accused acquitted and the accused convicted, is, in my opinion, not warranted in the factual matrix. The only reason given by the learned Sessions Judge is that the accused acquitted are not named in Exhibit 114, but then, in view of the death of Marotrao, although Exhibit 114 may be admissible in evidence, the veracity thereof could not be tested through cross-examination. Accused 7 Devidas whose presence on the spot is suspect is also named in the first information report. The witnesses who have supported the prosecution are related witnesses and the only independent witness was declared hostile. It is true that related witnesses are not necessarily interested witnesses. It is also true, as is contended by the learned Additional Public Prosecutor, that ordinarily the injured witnesses stand on a higher pedestal than other witnesses. But then, the witnesses have assigned identical role to or each of the twelve accused. Six of them are acquitted and State has not challenged 21 apeal67.00 the acquittal. The over implication and indeed false implication is apparent from the fact that accused 7 Devidas who could not have been on the spot is implicated as one of the assailants. The incident is blurred. Some of the witnesses have admitted that there was a physical altercation between accused 7 Devidas on one hand and Marotrao and Prakash on the other prior to the incident. 13. In the totality of the circumstances, although the evidence on record may at the most raise strong suspicion, unimpeachable proof is lacking. 14. I deem it extremely hazardous to let the conviction rest on the evidence on record. I would extend the benefit of doubt to the accused and acquit them of the offences with which they have charged. The judgment and order dated 17-2-2000 delivered by the learned Additional Sessions Judge, Amravati in Sessions Trial 266/1994 is set aside. The accused are acquitted of the offences punishable under Sections 148, 326 read with Section 149, 452 read with Section 149 and 324 read with Section 149 of the Indian Penal Code. The bail bonds of the accused shall stand discharged. 22 apeal67.00 The fine paid by the accused, if any, be refunded to them. The appeal is allowed and disposed of accordingly. JUDGE adgokar",
        "35302553": "$~ * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 18th July, 2019 Decided on: 22nd August, 2019 + ITA 927/2005 COMMISSIONER OF INCOME TAX, DELHI ..... Appellant Through: Mr. Ajit Sharma, Senior Standing Counsel and Ms Adeeba Mujahid, Junior Standing Counsel for Revenue. versus ANOOP JAIN ..... Respondent Through: Mr Ajay Vohra, Senior Advocate with Mr U.A. Rana and Mr Himanshu Mehta, Advocates. CORAM: JUSTICE S. MURALIDHAR JUSTICE TALWANT SINGH JUDGMENT % Dr. S. Muralidhar, J.: 1. This is an appeal by the Revenue against the order dated 21 st February, 2005 passed by the Income Tax Appellate Tribunal (\u201eITAT\u201f) in ITA Nos. 2959 & 3221/Del./1996 for the Assessment Year (\u201eAY\u201f) 1992-93. 2. While admitting this appeal on 22nd August, 2007, the following question of law was framed for consideration: \"Whether the Income Tax Appellate Tribunal was correct in law in affirming the decision of the Commissioner of Income Tax (Appeals) deleting the addition of Rs.5,17,45,958/- made by the Assessing Officer under Section 69-A of the Income Tax Act, 1961?\" 3. The background facts are that the Respondent/Assessee is stated to be a member of the Delhi Stock Exchange (\u201eDSE\u201f), carrying on business in the name and style of M/s. Jain and Company. He is also stated to be an empanelled broker of financial institutions and funds like Unit Trust of India (\u201eUTI\u201f), Indian Bank Mutual Fund, Can Bank Mutual Fund, etc. 4. For the AY in question, the Assessee filed a return declaring his income as Rs.3,96,960/-. The return was picked up for scrutiny. The Assessing Officer (\u201eAO\u201f) noticed that the Assessee had disclosed a bank account with Corporation Bank at Bombay in the Balance Sheet for the year ending on 31st March, 1993. This was, however, not disclosed in the Balance Sheet for the earlier year and the year ending on 31st March, 1992. In his statement on 13th February 1995, the Assessee claimed that this bank account had been inadvertently left out. 5. The AO further noticed that the balance in the said bank account as per the books of accounts of the Assessee was nil, whereas the bank statement showed it to be Rs.32,105/-. It was also noticed that as on 4th March, 1992, in the said account, there was a credit balance of Rs.1,03,31,250/-. Against this account, 24 cheques in different names had been issued between 11 th and 17th March, 1992. The explanation offered by the Assessee was that this credit amount represented the sale proceeds of 7,25,000 units of the UTI 1964 Scheme sold to State Bank of Hyderabad (\u201eSBH\u201f). 6. Looking into the complexity of the account, the AO directed a special audit under Section 142 (2A) of the Income Tax Act, 1961 (\u201eAct\u201f). It transpired that a chain of transactions had led to the above credit entry into the bank account of the Assessee. On 6 th February, 1992, 7,25,000 units of the UTI 1964 Scheme were purchased from SBH Funds Management Cell, Bombay at Rs.14.20 each, for a total consideration of Rs.1,02,95,000/-. SBH issued their bankers receipt for the same amount on the same date in lieu of the units sold by them. The payment of this amount was made by the Assessee by a cheque dated 6th February, 1992 drawn on Standard Chartered Bank (\u201eSCB\u201f) in favour of SBH, Bombay. 7. After purchasing the above shares, the Assessee sold the units on the same date to Mr. D. D. Chaturvedi. The Assessee explained to the AO that the Bank Receipt was purchased from SBH on 6th February, 1992 on behalf of Mr. Chaturvedi, who in turn had bought the same on behalf of M/s. Shri Maharaj Investment (\u201eSMI\u201f), which was a proprietory concern of Mrs. Sneh Pathak wife of Mr. Jaideep Pathak, the manager of SCB. The Assessee further explained that this bank receipt had been sold back to SBH on 4th March, 1992 for a consideration of Rs.1,03,02,250/- on the instructions of Mr. Chaturvedi. The Assessee thus claimed that he had entered into the transaction not on his own behalf but on behalf of Mr. Chaturvedi, who in turn was acting on behalf of SMI. The Assessee claimed that he had only made a profit of Rs.7,250/- in this transaction. 8. The AO, not being satisfied with the above explanation, recorded the statement of Mr. Chaturvedi. He also obtained statements of Mr. Jaideep Pathak and his wife Mrs. Sneh Pathak at Bombay. In his statement, Mr. Chaturvedi accepted the transaction of purchase and sale of units through the Assessee. However, Mr. Pathak and Mrs. Sneh Pathak denied having entered into any such transaction with Mr. Chaturvedi or with the Assessee. The AO found that SCB had issued a letter on 6th February, 1992 under the signature of Mr. Pathak by which a cheque for Rs.1,02,95,000/- was forwarded. The AO was of the view that the cheque had been issued on the instructions and at the instance of the Assessee i.e. M/s Jain & Company. It was concluded that this amount had been obtained by the Assessee from SCB by utilizing his own funds. 9. The AO found that there were in all 15 drafts/pay orders (\u201ePO\u201f) issued by Mr. Jaideep Pathak on behalf of SCB totalling to Rs.5,68,75,958/-. Out of these 15 POs, 13 were received by the Assessee, aggregating to Rs.5,17,45,958/-. The first of such POs of Rs.1,02,95,000/- was utilised for the purchase of 7,25,000 units from SBH. Remaining 12 POs were utilised for the purchase of shares of different companies by the Assessee on his own account which were later sold to Mr. Chaturvedi. Since the first PO of Rs.1,02,95,000/- was held to have emanated from the funds of Assessee, the AO held that for the remaining 12 POs, the same belonged to the Assessee on the parity of reasoning given with respect to the first PO of Rs.1,02,95,000/-. The AO noticed that the remaining 12 POs were not deposited in the Assessee's bank account with the Corporation Bank but were paid directly for the purchase of securities to the vendors. 10. The Assessee volunteered that this purchase was also done on behalf of Mr. Chaturvedi and that the difference of the price and the amount of the POs was adjusted in the running account of the Assessee with Mr. Chaturvedi. However, the AO not being convinced with the above explanation, treated the entire amount of Rs.5,17,45,958/- as unexplained income of the Assessee under section 69A of the Act. 11. During the proceedings, the Special Auditor in his report under section 142 (2A) of the Act pointed out that the Assessee had made payments in excess of Rs.10,000/- otherwise than by crossed cheque or a crossed bank draft. This was held to be in violation of Section 40A (3) of the Act. Further, the amount of the 9 cheques to the extent of Rs.3,43,450/- was disallowed under Section 40A (3) of the Act. Rs.1,34,450/- was disallowed for failure to enter the transactions representing the amount into \u201eChopris\u201f. 12. Aggrieved by the above order, the Assessee filed an appeal before the Commissioner of Income Tax (Appeals) [\u201eCIT (A)\u201f]. By the order dated 6th February, 1996, the CIT (A) held that there was no material on record to suggest that the draft of Rs.l,02,95,000/- was utilised for the Assessee\u201fs own benefit. It was also held that there was no material to show that Assessee was acting in collusion with Mr Chaturvedi. 13. The CIT (A) noted that certain assets were found by the Central Bureau of Investigation (\u201eCBI\u201f) in possession of Mr Chaturvedi, who then surrendered them to the CBI. The CIT (A) also held that there was no evidence to show that the money in question was utilised by the Assessee. The CIT (A) accordingly deleted the addition of Rs.5,17,45,958/-. The CIT (A) however, confirmed the addition made by the AO of Rs.1,34,405/- and Rs.3,43,450/-. 14. Both, the Assessee as well as the Revenue, filed appeals before the ITAT. The addition of Rs.5,17,45,958/- under section 69A of the Act by the AO, was held by the ITAT in the impugned order to be bad in law since the Revenue had not been able to bring on record any material or evidence to indicate that the Assessee had carried out any transactions outside the books of accounts. The ITAT held that Section 69A of the Act was not applicable since the conditions precedent to give rise to the legal fiction had not been proved. However, in respect of the Assessee\u201fs plea as regards addition of Rs.l,34,150/- and disallowance of Rs.3,43,450/- under Section 40A (3) of the Act, it was held that the since it was an inadvertent omission, no addition could be made. 15. The ITAT further held that the loss of Rs.24,29,739/- was rightly characterised as loss in speculation. The only question was how much of the loss had been suffered by the Assessee and how much by the Assessee\u201fs clients. Despite ample opportunities the Assessee failed to furnish the particulars. Thus the Assessing Officer (AO) was compelled to resort to an estimate. The AO attributed 50% loss to the Assessee which was reduced by the CIT (A) to 25%. Consequently, the ITAT saw no reason to interfere. 16. Thus, the Revenue\u201fs appeal was dismissed and the appeal filed by the Assessee was partly allowed by the ITAT. The addition of Rs.1,34,450/- on account of failure to enter transactions into Chopris and Rs.3,43,450/- by way of disallowance under Section 40A (3) of the Act were deleted. 17. As already noticed hereinabove the present appeal has been admitted confined to only one question regarding deletion by the ITAT of the addition made by the AO of Rs.5,17,45,958/- to the income of the Assessee under Section 69A of the Act. 18. Mr. Ajit Sharma, learned counsel appearing for the Revenue submitted that the ITAT failed to appreciate that both Mr. Jaideep Pathak and Smt. Sneh Pathak had stated that they had not entered into any transaction with Mr. Chaturvedi or with the Assessee. He submitted that the ITAT also failed to appreciate that when Mr. Chaturvedi for whom the 7,25,000/- units of UTI 1964 scheme were purchased by the Assessee was questioned, he replied that the PO had been received from SMI, a proprietary concern of the wife of Mr. Jaideep Pathak. However, he was unable to produce any documentary evidence to substantiate this. This was also denied by SMI. The fact remained that in terms of the cheque dated 6th February, 1992 issued by the SCB addressed to SBH the proceeds of the PO were to be credited into the account of the Assessee. 19. Relying on the decision in CIT v. K. Chinnathamban (2007) 7 SCC 390, Mr. Sharma submitted that in the above circumstances the onus to prove the source of Rs.1,02,95,000/- was on the Assessee and he failed to discharge it. Reliance was also placed on the decision in Sumati Dayal v. Commissioner of Income Tax, Bangalore (1995) Supp 2 SCC 453 to urge that the burden of proof in the present case had shifted to the Assessee to prove the sources of income. 20. Mr. Ajay Vohra, learned Senior counsel for the Respondent/Assessee, referred to the correspondence between the parties. In particular he referred to the letter dated 21st August, 1995 issued by the SCB to the AO stating that the record of the bank did not show that the aforementioned cheque of Rs.1,02,95,000/- in favour of SBH was issued on instructions of Jain & Co. i.e. Assessee. He pointed out that the letter stated that there were no written instructions from the Assessee to that effect and further that the money was not received back with the bank. 21. Mr. Vohra referred to a letter dated 25th August, 1995 stating that no security had been received against the PO. He also referred to the letter dated 25th August, 1995 addressed by the bank to the AO stating that it had not received any security against the PO nor were the funds returned to the bank. He referred to the reply of Mr. Chaturvedi to Question No. 3 of the AO where he confirmed that the payment of the above sum of Rs.1,02,95,000/- was made by Mr. Chaturvedi to the Assessee for making payment to SBH. He also confirmed that 24 cheques issued from Corporation Bank, Bombay by the Assessee were as per his instructions and on his behalf. He denied that the Assessee was connected with the clients of Mr. Chaturvedi to whom the 24 cheques were issued. Even in the course of cross-examination by the AO, Mr. Chaturvedi confirmed these transactions. 22. Mr. Vohra referred to the statement of Mr. Jaideep Pathak recorded by the AO on 24th March, 1995. In reply to questions 3,4 & 5 Mr. Pathak stated that he had received instructions from Mr. Hiten P. Dalal, who was a stock and share broker from Kanpur, for issuing pay orders totalling Rs.5,68,74,958/-. He referred to the charge-sheet filed by the CBI on 20th June, 1992 where it was alleged that the pay orders of SCB were issued by Mr. Pathak from the funds of Mr. Hiten P. Dalal which were then given to Mr. Chaturvedi as part of criminal conspiracy to derive pecuniary benefit. He pointed out that in the assessment order dated 31st July, 1995 of Mr. Pathak for AY 1992-1993 Rs. 5,68,75,958/- was added to his income and this included a sum of Rs. 5,17,45,958/- added by the AO in the hands of the Assessee. He pointed out that Mr. Pathak had also written a letter on 6th February, 1992 to SBH stating that he had not received any instructions from the Assessee to issue a draft for Rs.1,02,95,000/-. 23. By a letter dated 26th September, 1995 SCB confirmed to the Assessee that he did not have any bank account with them and that SCB had not filed any civil claim against the Assessee. Mr Vohra referred to the letter dated 25th September, 1995 from Mr. Chaturvedi to the Assessee giving a list of the securities and money deposited by Mr. Chaturvedi with the CBI amounting to Rs.4,73,19,836/- consisting of drafts, shares and money. This letter also confirmed that the assets were held by Mr. Chaturvedi in his books in the name of SMI whose proprietor was Mrs. Sneh Pathak, the wife of Mr. Jaideep Pathak. This showed that the money was held by Mr. Chaturvedi on behalf of SMI. Additional evidence was also admitted by the CIT (A) at the time of appeal. 24. The above submissions have been considered. Apropos the question of law framed in this appeal, it is necessary first to refer to Section 69A of the Income Tax Act which reads as under: \"69A. Where in any financial year the assessee is found to be the owner of any money, bullion, jewellery or other valuable article and such money, bullion, jewellery or valuable article is not recorded in the books of account, if any, maintained by him for any source of income, and the assessee offers no explanation about the nature and source of acquisition of the money, bullion, jewellery or other valuable article, or the explanation offered by him is not, in the opinion of the Assessing Officer, satisfactory, the money and the value of the bullion, jewellery or other valuable article may be deemed to be the income of the assessee for such financial year.\" 25. The legal requirement as regards Section 69A may be summarised thus: i) In any financial year the Assessee should be found to be the owner of any money, bullion, jewellery etc. ii) Such money, bullion, jewellery etc. should not be recorded in his books of account, if any maintained by him for any source of income. iii) The Assessee should offer no explanation about the nature and source of acquisition of the money. iv) The explanation offered by him is not found to be satisfactory in the opinion of the AO. 26. If the above conditions exist then such money and the value of such bullion, jewellery etc. would be deemed to be the income of the Assessee for such financial year. In Chuharmal v. CIT (1988) 3 SCC 588 it was explained that the word \u201eincome\u201f in Section 69A had a wide meaning. 27.1 In CIT v. K. Chinnathamban (supra) relied upon by learned counsel for the Revenue, the Respondent/Assessee was connected with the firm by name of V.V. Enterprises. On search of its premises by the police officers Rs.1.18 crores of cash was seized. The firm was managed by one K. Palaniasamy who had filed its returns and gave statements in the course of the assessment proceedings. 27.2 Mr. K. Palaniasamy was not in a position to explain the source of deposit of Rs.1.18 crores. The AO therefore treated the said amount as undisclosed income of the persons in whose names the deposit appeared. As far as the Respondent/Assessee was concerned, Rs.5.16 lakhs was determined to be his income on the basis that Rs.16,148/- as his salary and Rs.5 lacs as undisclosed income. It was found by the AO that although M/s V.V. Enterprises was stated to be a registered firm but there were in fact no bank accounts in the name of such firm. Also there were no accounts in the name of any of the partners alleged therein. There were no deposits either in the name of the firm or of any of the partners. 27.3 In view of the statements of Mr. K. Palaniasamy the AO proceeded to frame assessment in his hands on protective basis and in the hands of the deposit holders for unexplained deposits. As far as Assessee is concerned, he could not establish the source of the deposit and there was no evidence to support his claim that the amount had been collected from members of the public. 27.4 It was held by the Supreme Court in CIT v. K. Chinnathamban that where the deposit stands in the name of third person and that person is related to the Assessee then in such a case the proper course would be to call upon the person in whose books the deposit appears or the person in whose names the deposit stands to explain such deposit. 27.5 In that case it was found that there was no evidence regarding the registration of firm or the source of investment. The onus of proving the source of deposit primarily rested on the persons in whose names the deposit appeared in various banks. Accordingly, the action of the department in making the individual assessment in the hands of the Assessee was upheld. Therefore, what turned the decision in the case was the failure of the Assessee to properly explain the source of the deposit. 28.1 Turning now to the decision in Sumati Dayal v. CIT, Bangalore (supra), the Assessee there carried on business as a dealer in art pieces, antiques and curios in Bangalore. During the AY 1971-72 the Assessee received a total amount of Rs.3,11,831/- \"by way of race winnings in Jackpots and Treble events in races at Turf Clubs in Bangalore, Madras and Hyderabad.\" The amount was shown by the Assessee in the capital account in the books. The AO recorded the statement of the Assessee and in the Assessment Order held that the above amount did not represent winnings and races. He treated the receipt as income from undisclosed sources and assessed it as income from other sources. For the AY 1972-73 similar amount of Rs.93,500/- shown by the Assessee as race winnings was treated as income from other sources. 28.2 While the appeals were pending before the Appellate Tribunal the Assessee withdrew those appeals and went before the Settlement Commission. By majority, the Settlement Commission came to the conclusion that the Assessee\u201fs claim about her winnings and races was contrived and not genuine. The Chairman of the Settlement Commission gave a dissenting opinion. 28.3 In upholding the majority of the opinion of the Settlement Commission the Supreme Court explained that once there was prima facie evidence against the Assessee, the burden shifted to the Assessee to rebut the inference that the unexplained money constituted income in the Assessee\u201fs hands. The legal position was explained in para 4 as under: \"4. It is no doubt true that in all cases in which a receipt is sought to be taxed as income, the burden lies on the Department to prove that it is within the taxing provision and if a receipt is in the nature of income, the burden of proving that it is not taxable because it falls within exemption provided by the Act lies upon the assessee. (See: Parimisetti Seetharamamma (supra) at P. 536). But, in view of Section 68 of the Act, where any sum is found credited in the books of the assessee for any previous year the same may be charged to income tax as the income of the assessee of that previous year if the explanation offered by the assessee about the nature and source thereof is, in the opinion of the Assessing Officer, not satisfactory. In such case there is, prima facie, evidence against the assessee, viz., the receipt of money, and if he fails to rebut, the said evidence being unrebutted, can be used against him by holding that it was a receipt of an income nature. While considering the explanation of the assessee the Department cannot, however, act unreasonably. (See: Sreelekha Banerjee (supra) at p. 120)\" 28.4 As far as the merits of the case was concerned, it was observed as under: \"7. There is no dispute that the amounts were received by the appellant from various race clubs on the basis of winning tickets presented by her. What is dispute is that they were really the winnings of the appellant from the races. This raises the question whether the apparent can be considered as real. As laid down by this Court, apparent must be considered real until it is shown that there are reasons to believe that the apparent is not the real and that the taxing authorities are entitled to look into the surrounding circumstances to find out the reality and the matter has to be considered by applying the test of human probabilities. (See: Commissioner of Income Tax v. Durga Prasad More,(1971) 82 ITR 540, at pp. 545, 547)\" 28.5 Both the above decisions, therefore, turned on the peculiar facts of each case. In both cases, the Assessee was not able to satisfactorily explain the source of income. 29. Turning to the case on hand, the question to be asked is whether the Assessee was able to satisfactorily explain the source of the credit entry of Rs.1,02,95,000/- appearing in his Corporation Bank Account. It must be recalled that while this was the starting point, during the course of assessment the AO found that the Assessee had received not one but 13 pay orders aggregating to Rs.5,17,45,958/- from SCB, Bombay during the FYs in question and mostly between December, 1991 and February, 1992. All these POs were utilised by him for purchasing units and shares from different banks and mutual funds. 30. The explanation offered by the Assessee was that all 13 POs were received from Mr. Chaturvedi, a Bombay Broker and the purchase of units and shares were done by him on behalf of Mr. Chaturvedi and then the same were sold back to Mr. Chaturvedi after earning normal brokerage. The AO found that all 13 POs were actually tainted POs relating to the Securities Scam of 1992 and that they had been issued by the SCB under extra ordinary circumstances. The SCB had informed the ACIT Circle 7 (3) that it had been a victim of a massive fraud perpetrated in 1992 by certain brokers in collusion with certain ex-employees of the SCB to siphon out funds from the bank. It was also informed that SCB had filed an FIR with CBI in which Mr. Jaideep Pathak, an ex-employee was named as one of the accused and all the above referred 13 POs were part of total 15 POs fraudulently issued by Sh. Pathak. 31. It must be noticed here that even during the course of the assessment proceedings the AO required the Assessee to show cause as to why the said sum of Rs.1,02,95,000/- should not be added to his total income under Section 69A of the Act. The Assessee filed a petition before the CIT under Section 144A of the Act challenging the above proposal. This application was disposed of by the Additional CIT by an order dated 22/25th September, 1995. 32. The direction sought by the Assessee from the Additional CIT was that the AO should put to the Assessee, the material gathered by him on the basis of which the addition was proposed to be made. In the said order dated 22/25th September, 1995 the Additional CIT noted the fact that the AO of Mr. Jaideep Pathak had held that there was an apparent case of financial quid pro quo against Mr. Pathak and had already added a sum of Rs.5.68 crores, equal to the amount of said 15 POs, as Mr. Pathak\u201fs income from other sources. It was noticed therein that \"13 out of these 15 POs were received by Mr. Anoop Jain, the Assessee and were utilised by him for purchasing the units and shares from different banks.\" 33. According to the Additional CIT the above facts appeared to be \"sufficient justification to the AO to suspect the Assessee\u201fs claim that the transactions relating to 13 POs of SCB were normal business transactions.\" He started investigation to find out the truth. The Additional CIT set out the gist of the evidence collected by the AO but added that it was \"not exhaustive nor is it possible for me to describe it fully due to time constraint.\" 34. However it was concluded that \"prima facie there appears to be a collusion between the Assessee and DDC in obtaining the 13 POs from Standard Chartered Bank through a financial quid pro quo with Mr. Jaideep Pathak.\" The objective behind the collusion appeared to be to invest heavily in the booming stock market prior to the Budget of 1992 and make a big and quick profit on sale of the shares subsequently. However, the additional CIT added as under: \"15. However, I hasten to add that before coming to a final and fair conclusion in this regard it would be necessary to consider all the facts, materials, and surrounding circumstances of the case including the materials and arguments advanced by the assessee in this regard. This will be lengthy and time consuming exercise and I do not have adequate time for this purpose. However, I am satisfied that the AO is capable of passing a fair and judicious order after considering all relevant facts, materials and surrounding circumstances of the case. I, therefore, direct him to do so and decide the issues on merits and in accordance with law.\" 35. When the matter went back to the AO he referred to not this paragraph but subsequent paragraphs of the order of the CIT where the attention was drawn to the AO to the decision of the ITAT Delhi in ITO v. DC Rastogi 39 ITD 490. The AO then proceeded to hold that the Assessee had acquired a pay order of Rs.1,02,95,000 from SCB \"after a financial quid pro quo of an equal amount\". On this very basis he added the amount to the income of the Assessee. On the same basis he further concluded that the amount constituting the remaining 12 POs should also be added to the income of the Assessee. 36. Thus it is seen that the very basis for making the additions is the inference drawn by the AO that the Assessee had received the above POs and spent the monies for purchase of shares and units as a result of some \u201efinancial quid pro quo\u201f. 37. This Court has again examined the evidence in some detail. There are certain facts that stand out which showed that the aforementioned amounts received by the Assessee as POs did not belong to him. The Assessee was only a conduit through whom the amounts were floated. One of the essential conditions in Section 69A of the Act is that the Assessee should be the \"owner of the money\" and it should not be recorded in his books of accounts. This was a pre-condition to the next step of the Assessee offering no explanation about the nature and source of the acquisition of such money. 38. In the present case the evidence placed before the AO clearly indicated that Mr. Chaturvedi confirmed that the draft of Rs.1,02,95,000/- was given by him to the Assessee and that the transactions of purchase of units were done by the Assessee on his behalf. Books of accounts maintained by Mr. Chaturvedi confirmed the above statement. 39. Added to this is the fact that CBI recovered securities and cash worth Rs.4,73,19,836/- from Mr. Chaturvedi and he claimed that these were held on behalf of Mrs. Sneh Pathak, the proprietor of SMI. This was to be read with the statement of Mr. Jaideep Pathak, an employee of the SCB, stating that the drafts worth Rs.5,68,74,958/- were issued by him on instructions of Mr. Hiten P.Dalal. 40. The two letters issued by SCB dated 21st August and 25th August, 1995 to the AO are significant. They clearly state in regard to the cheque of Rs.1,02,95,000/- issued in favour of SBH that as per the records \"there were no written instructions from M/s Jain & Company to this effect.\" They also confirmed that the money was not received back by SCB. The letter dated 25th August, 1995 in this regard is even more detailed. It was confirmed that: \"The above Pay Order is a part of 15 Pay Orders which were issued by the said Mr. Jaideep Pathak to siphon out funds from the Bank. The circumstances surrounding these Pay Orders have been investigated by Deputy Superintendent of Police, Central Bureau of Investigation (CBI) in SCB\u201fs case Ref No. RC-11 (S) 92-Bom.\" 41. This obviously meant that the above POs had been issued without obtaining any corresponding deposit of money into SCB by anyone else. Certainly the Assessee did not seem to have been involved at all. The addition of the sum of Rs.5,17,45,958/- to the income of Mr. Jaideep Pathak by his AO is another significant aspect. The said addition was part of the larger sum of Rs.5,68,79,958/- added to his income. The question of adding the same amount in the hands of the assessee clearly was not permissible. 42. The following reasoning of the CIT (A) in disbelieving the case of the Revenue appears to be an acceptable analysis of the evidence. \"36. During the course of the hearing of the appeal, the A.C. was confronted with the letter of SCB stating that no security was received by them against the issue of draft of Rs.1,02,95,000/-. The A.O. admitted that his case does not rest any longer on the deposit of money with the bank of equivalent amount and the case of the department now is that this money was given by the assessee to Mr. Jaideep Pathak, the manager of SCB in his personal capacity for obtaining the draft in his favour. If this is so, it means that the assessee had utilised his unaccounted money to obtain the white money by way of a draft from the bank. If that is so, there was no need for him to attempt to conceal his bank account in the corporation bank, Bombay as is claimed by the department. Secondly, the draft would have been utilised by the assessee for his own benefit and it has not been shown by the A.O. whether it was so. On the contrary, the amount of Rs.1,02,95,000/- has been utilised for issuing 24 drafts in favour of certain parties on the instruction of Mr. DDC which fact is confirmed by DDC. Thus, the subsequent conduct of the assessee does not support the case of the department that the money was given by the assessee to Mr. Jaideep Pathak to obtain the drafts and is rather disproved by the facts stated above including the chargesheet filed by the CBI where the facts and modus operandi adopted have been discussed in details. 37. The theory of the A.O. is also not sustainable on another consideration. If the money belonged to the assessee and the purpose was to launder the same as is made out, then it has to be explained as to why Mr. DDC is supporting the contention of the assessee that the money was supplied by him which belonged to Shri Maharaj Investment. It was argued on behalf of the revenue that the assessee was acting in collusion with Mr. DOC and that is why the case of the assessee is being supported by him. 38. However, this contention is without any merit as even as per the case of the department, no money has been invested by Mr. DDC. If the assessee and Mr. DDC were acting in collusion then it stands to reason that both will be making the investments and not merely the assessee. No such investment by Mr. DDC is even alleged by the Department. Further, from the conduct of the parties and the subsequent events, it appears that no benefit was to accrue to Mr. DDC and if that is so then the story of collusion is not supported by the facts. As already stated, the chargesheet filed by CBI disproves this contention totally. It may however, be mentioned that certain assets were found by the CBI in the possession of Mr. DDC which have been surrendered by him to the CBI. He claimed that these assets were held by him on behalf of SMI and not on his own behalf. He had not stated that this money belonged to the assessee or he himself and this claim has not been disproved and on the contrary is accepted by the Deptt. in case of Mr. Jaideep Pathak.\" 43. As rightly noted by the CIT (A) there was no evidence to show that the 24 cheques stated to have been issued by the Assessee on behalf of Mr. Chaturvedi were utilised by the Assessee and were meant for the benefit of the Assessee. 44. In other words, there was nothing to show that the Assessee had benefited in any way from any of the above transactions. As regards the test of human probabilities if there was no evidence whatsoever to the contrary it could have been resorted to draw certain inference. 45. However, in the present case there appears to be overwhelming evidence to show the involvement of Mr. Chaturvedi acting on behalf of Mrs. Sneh Pathak for SMI. The CBI also did not choose to proceed against the Assessee and that discounts the case of any collusion between the Assessee and Mr. Chaturvedi along with Mr. Pathak. It does appear that the Assessee was at the highest used as a conduit by the other parties and did not himself substantially gain from these transactions. 46. In that view of the matter, the concurrent view of both the CIT (A) and the ITAT that the addition of the aforementioned sum to the income of the Assessee was not warranted, does not call for interference. The question of law framed is accordingly answered in the affirmative i.e. in favour of the Assessee and against the Revenue. The appeal is accordingly dismissed. S. MURALIDHAR, J. TALWANT SINGH, J. AUGUST 22, 2019/rd/mw",
        "80182706": "REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 10873 OF 2018 [ARISING OUT OF SLP(CIVIL) NO.5895 OF 2018] M/S HINDON FORGE PVT. LTD. & ANR. \u2026APPELLANTS VERSUS THE STATE OF UTTAR PRADESH THROUGH DISTRICT MAGISTRATE GHAZIABAD & ANR. \u2026RESPONDENTS WITH CIVIL APPEAL NO. 10874 OF 2018 [ARISING OUT OF SLP(CIVIL) NO.12841 OF 2018] JUDGMENT R.F. NARIMAN, J. 1. Leave granted. 2. These matters come to us from a Full Bench judgment of Signature Not Verified the Allahabad High Court dated 06.02.2018. By an order of Digitally signed by R NATARAJAN Date: 2018.11.01 16:54:29 IST Reason: reference dated 19.09.2017, a learned Single Judge noticed divergent opinions expressed by two different Benches of the Allahabad High Court on the question whether an application under section 17(1) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 (hereinafter referred to as the \u201cSARFAESI Act\u201d or the \u201cAct\u201d), at the instance of a borrower, is maintainable even before physical or actual possession of secured assets is taken by banks/financial institutions in exercise of their powers under section 13(4) of the Act read with rule 8 of the Security Interest (Enforcement) Rules, 2002 (hereinafter referred to as the \u201c2002 Rules\u201d). After discussing the various provisions of the Act, the 2002 Rules and judgments of the Supreme Court, the Full Bench summarised the true legal position according to it as follows: \u201c29. The upshot of legal position that emerges from the judgments of the Supreme Court, insofar as the question referred to for our consideration is concerned, briefly stated, is as under: (a) The remedy of an application under Section 17(1) is available only after the measures under Section 13(4) have been taken by the Bank/FIs against the borrower. (b) The issue of notice under Section 13(2) to the borrower and communication contemplated by Section 13(3-A) stating that his representation/objection is not acceptable or tenable, does not attract the application of principles of natural justice. In other words, no recourse to an application under Section 17(1), at that stage, is available/maintainable. (c) The borrower/person against whom measures under Section 13(4) of the Act are likely to be taken, cannot be denied to know the reason why his application or objections have not been accepted, as a fulfilment of the requirement of reasonableness and fairness in dealing with the same. (d) One of the reasons for providing procedure under Section 13(4) read with Rule 8 for taking possession is that the borrower should have a clear notice before the date and time of sale/transfer of the secured assets, in order to enable him to tender the dues of the secured creditor with all other charges or to take a remedy under Section 17, at appropriate stage. (e) The time of 60 days is provided after the \u201cmeasures\u201d under Section 13(4) have been taken so as to enable the borrower to approach DRT and in such an eventuality, the DRT shall have a jurisdiction to pass any order/interim order, may be subject to conditions, on the application under Section 17(1) of the Act. (f) The scheme of relevant provisions of the Act and the Rules shows that the Bank/FIs have been conferred with powers to take physical (actual) possession of the secured assets without interference of the Court and the only remedy open to the borrower is to approach DRT challenging such an action/measure and seeking appropriate relief, including restoration of possession, even after transfer of the secured assets by way of sale/lease, on the ground that the procedure for taking possession or dispossessing the borrower was not in accordance with the provisions of the Act/Rules. (g) If the dues of the secured creditor together with all costs, charges and expenses incurred by them are tendered to them (secured creditors) before the date fixed for sale or transfer, the assets shall not be sold or transferred and in such an eventuality, possession can also be restored to the borrower. (h) If the possession is taken before confirmation of sale, it cannot be stated that the right of the borrower to get the dispute adjudicated upon is defeated. The borrower's right to get back possession even after the sale remains intact or stands recognised under the scheme of the provisions of the Act. (i) The borrower is not entitled to challenge the reasons communicated or likely measure, to be taken by the secured creditor under Section 13(4) of the Act, unless his right to approach DRT, as provided for under Section 17(1), matures. The borrower gets all the opportunities, at different stages, either to clear the dues or to challenge the measures under Section 13(4) or even to challenge the reasons rejecting his objections/not accepting the objections, after the measures under Section 13(4) have been taken. (j) While the banks have been vested with stringent powers for recovery of their dues, safeguards have also been provided for rectifying any error or wrongful use of such powers by vesting DRT with authority, after conducting an adjudication into the matters, to declare any such action invalid and also to restore even though the possession may have been made over to the transferee. (k) The safeguards provided under the scheme make it further clear that if the Bank/FIs proceeds to take actual possession of the assets that cannot be stalled by the interference of a Court. (l) If DRT after examining the facts and circumstances of the case and on the basis of evidence produced by the parties, comes to the conclusion that any of the measures referred to in Section 13(4), taken by the secured creditor is not in accordance with the provisions of the Act, it may by order declare that the recourse taken to any one or more measures is invalid and restore possession to the borrower. (m) Any transfer of secured asset after taking possession thereof by the secured creditor shall vest in the transferee all rights in, or in relation to the secured asset as if the transfer had been made by the owner of such secured assets. (n) No remedy under Section 17(1) can be taken by the borrower unless he loses actual (physical) possession of the secured assets. In other words, before losing actual possession or unless the secured creditor obtains physical possession of the secured asset under Section 13(4), it is not open to the borrower to take a remedy under Section 17(1) of the Act.\u201d The court then went on to hold: \u201c31. Section 13(4) of the Act provides that if the borrower fails to discharge his liability within the period prescribed under Section 13(2), the secured creditor can take recourse to one of the measures, such as taking possession of the secured assets, including the right to transfer by way of lease, assignment or sale for realising the secured asset. From the language of this provision, it is further clear that taking measure under Section 13(4)(a) would mean taking actual (physical) possession, and if we do not read it in the said provision to say so, the right and power of the secured creditor to transfer the assets by way of lease, assignment or sale for realizing the secured assets, as provided for therein, would render redundant. In other words, putting such an interpretation on the language of Section 13(4) of the Act would be atrocious and would defeat the very objective of bringing the legislation. It is, therefore, not possible to hold that taking \u201cmeasures\u201d under Section 13(4)(a) also means taking only \u201csymbolic possession\u201d and not \u201cphysical possession\u201d. We record further reasons to say so in following paragraph. From the scheme of Section 13(4) and Sections 14 and 17 of the Act and the relevant Rules 8 and 9 of the Rules, it appears to us that unless physical possession is taken, the measure, contemplated under Section 13(4), cannot be stated to have been taken. 31.1. One of the rights conferred on a secured creditor is to transfer by way of lease, the secured asset, possession or management whereof has been taken under clauses (a) or (b) of sub-section (4) of Section 13. We have already held that sale or assignment of the secured assets could only be undertaken if actual physical possession has been taken over by the bank/FI\u2019s. If we pose a question whether right to transfer the secured assets by way of lease could be exercised without taking actual physical possession of the secured asset or management of the business of the borrower, our answer would be obviously in the negative. 31.2. The word \u2018lease\u2019 has not been defined under the Act, but it has been used in the Act in the same sense as under the Transfer of Property Act, 1882. Thereunder, Section 105 defines lease as \u201ctransfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. Lease is a contract between the lessor and the lessee for the possession and profits of land, etc. on one side and the recompense by rent or other consideration on the other. The estate transferred to the lessee is called the leasehold. The estate remaining in the lessor is called the reversion. 31.3. The absolute owner, who is under no personal incapacity can grant lease for any term he pleases. However, the limited owner like a tenant for life can grant lease but it would not endure beyond his death. The Supreme Court in Associated Hotels of India Ltd. v. R.N. Kapoor, AIR 1959 SC 1262, while making a distinction between lease and license observed thus:\u2014 \u201cA lease is a transfer of an interest in land. The interested transferred is called the leasehold interest. The lessor parts with his right to enjoy the property during the term of the lease, and it follows from it that the lessee gets that right to the exclusion of the lessor. Under S. 52 if a document gives only a right to use the property in a particular way or under certain terms while it remains in possession and control of the owner thereof, it will be a licence. The legal possession, therefore, continues to be with the owner of the property, but the licensee is permitted to make use of the permissive for a particular purpose. But for the permission, his occupation would be unlawful. It does not create in his favour any estate or interest in the property. There is, therefore, clear distinction between the two concepts.\u201d 31.4. One of the essential indicia of lease is parting of exclusive possession by the lessor to the lessee with conferment of reciprocal right in the lessee to protect his possession during subsistence of the lease to the exclusion of the lessor. Although in some cases, a licensee may also be given exclusive possession of a property, but as observed above, parting of exclusive possession to the lessee is a sine qua non for creating a valid lease. Thus, where a person is not in physical possession of a property nor in a position to deliver physical possession in future, he is incompetent to create a valid lease. The reason being that he is not in a position to confer upon the lessee the right to enjoy the property to the exclusion of the lessor and everyone else. 31.5. It thus necessarily follow that the ultimate object of taking possession of the secured asset or management of the business of the borrower would not be achieved unless the secured creditor is in a position to further exercise his right to transfer the same, inter alia, by way of lease or sale, which could be possible only if physical (actual) possession has been taken over and not constructive or symbolic possession. The language of Section 13(6) also supports our view. Thus, while there is no bar in first taking symbolic possession of the secured assets, but it is implicit in sub-section (4) of Section 13 that the secured creditor has to thereafter proceed to take physical (actual) possession in order to exercise its right to transfer by way of lease, assignment or sale.\u201d xxx xxx xxx \u201c34. Thus, the scheme of the provisions of Sections 13 and 17 of the Act, read with Rules 8 and 9 of the Rules, would show that the \u201cmeasure\u201d taken under Section 13(4)(a) read with Rule 8 would not be complete unless actual (physical) possession of the secured assets is taken by the Bank/Financial Institutions. In our opinion, taking measure under Section 13(4) means either taking actual/physical possession under clause (a) of sub-section (4) of Section 13 or any other measure under other clauses of this Section and not taking steps to take possession or making unsuccessful attempt to take measure under Section 13(4) of the Act. Similarly, following the procedure laid down under Section 14 and/or Rules 8 and 9, where the Bank meets with resistance, would only mean taking steps to seek possession under Section 13(4)(a) and the \u201cmeasure\u201d under sub-section (4)(a) of Section 13 would stand concluded only when actual/physical possession is taken or the borrower loses actual/physical possession. It is at this stage alone or thereafter, the borrower can take recourse to the provisions of Section 17(1) of the Act. The transfer of possession is an action. Mere declaration of possession by a notice, in itself, cannot amount to transfer of possession, more particularly where such a notice meets with resistance. When the possession is taken by one party, other party also loses it. In the present case, adversial possession in being claimed by the secured creditor against the borrower. It is not possible that both will have possession over the secured assets. The possession of the secured creditor would only come into place with the dispossession of the borrower. We may also observe that in a securitisation application under Section 17(1), the borrower will have to make a categoric statement that he lost possession or he has been dispossessed and pray for possession. 35. Issuance of possession notice, as observed earlier, gives borrower and the public in general an intimation that the secured creditor has taken possession of the property and at that stage, it is quite possible, may be in view of resistance or if the Banks chooses to take only symbolic possession, to state that the secured creditor has taken symbolic/constructive possession and not physical possession, but that by itself would not entitle the borrower to raise challenge under Section 17(1) of the Act, as held by the Supreme Court in Noble Kumar (supra). Unless the borrower loses actual (physical) possession, he cannot take recourse to provisions of Section 17(1). Even while taking steps under Section 13(4) of the Act read with Rule 8 of the Rules, in a given case, the bank may not physically dispossess the borrower and wait till it takes steps to conduct actual sale/auction of the secured assets i.e. till he issues notice under Rule 8(6) of the Rules. Even that by itself, from the scheme of the Act and the Rules, in the backdrop of the objective of the Act, in our opinion, does not confer any right to take recourse to Section 17(1). The borrower can file securitisation application under Section 17(1) only when he physically loses possession.\u201d xxx xxx xxx \u201c40. We are, therefore, of the firm and considered opinion that taking \u201csymbolic possession\u201d or issuance of possession notice under Appendix IV of the Rules, meeting with any resistance, cannot be treated as \u201cmeasure\u201d/s taken under Section 13(4) of the Act and, therefore, the borrower at that stage cannot file an application under Section 17(1) before DRT. In other words, a securitisation application under Section 17(1) of the Act is maintainable only when actual/physical possession is taken by the secured creditor or the borrower loses actual/physical possession of the secured assets. Once the right to approach DRT matures and securitisation application under Section 17(1) is filed by the borrower, it is open to DRT to deal with the same on merits and pass appropriate orders in accordance with law. Thus, the question referred to for our consideration stands answered in terms of this judgment. The judgment of this Court in Aum Jewels (supra), in our opinion, does not enunciate the correct law.\u201d 3. Shri Neeraj Kishan Kaul, learned Senior Advocate, appearing on behalf of the appellants, has placed before us all the relevant sections under the SARFAESI Act as well as the relevant rules under the 2002 Rules. He has referred to the Statement of Objects and Reasons of both the original Act as well as the Amendment Act made in 2004 pursuant to a judgment of this Court in Mardia Chemicals Ltd. v. Union of India, (2004) 4 SCC 311 (\u201cMardia Chemicals\u201d). According to Shri Kaul, the scheme of section 13 is that a notice of default once served under section 13(2) of the Act may call upon the borrower to discharge in full his liability to the secured creditor within 60 days from the date of notice, failing which the secured creditor shall be entitled to exercise all or any of the rights under sub-section (4) of section 13. He relied upon section 13(3-A) which made it clear that even though reasons are communicated under the said sub-section, since no measures were actually taken under section 13(4), there is no right at that stage for the borrower to prefer an application to the Debts Recovery Tribunal under section 17 of the Act. According to the learned Senior Advocate, section 13(4)(a) makes it clear that \u201cpossession\u201d of the secured assets of the borrower may be taken under this provision. Obviously, such possession is to be taken under the rules framed under the Act. Rule 8(1) makes it clear that possession is taken under the 2002 Rules by delivering a possession notice prepared in the form contained in Appendix IV to the rules, and by affixing the notice on the outer door or at such conspicuous place of the property. Once this is done, and the possession notice is published in two leading newspapers under sub-rule (2), the form contained in Appendix IV makes it clear that notice is given to the public in general that possession has been taken in exercise of powers contained under section 13(4) of the Act read with rule 8 of the 2002 Rules. As soon as this takes place, according to Shri Kaul, since \u201csymbolic possession\u201d has been so taken, the right of the borrower to approach the Debts Recovery Tribunal for relief under section 17 gets crystallized. He also relied upon sub-rule (3) to argue that possession may be taken under this sub-rule which is \u201cactual\u201d as opposed to \u201csymbolic\u201d possession under sub-rule (1). According to the learned Senior Advocate, the moment possession is taken either under rule 8(1) or under rule 8(3), section 13(6) gets attracted thereby making it clear that a transfer of secured asset, after taking such possession, shall vest in the transferee all rights in, or in relation to, the secured asset transferred as if the transfer had been made by the owner of such secured asset. According to Shri Kaul, after symbolic possession is taken under rule 8(1), rules 8(5) to 8(8) and rule 9 can then be followed in order to effect sale of property of which symbolic possession has been taken. Shri Kaul attacked the judgment of the Full Bench, stating that the conclusion of the Full Bench that the borrower would have to wait until actual physical possession of the secured asset is taken would create great hardship in that a running business of the borrower would be taken over without the borrower being able to approach the Debts Recovery Tribunal, and would have to wait until after the sale takes place to recover possession under section 17(3), even if he is able to show that the steps taken by the secured creditor are in violation of the provisions of the Act. Thus, if symbolic possession is taken contrary to section 13(2) prior to 60 days from the date of the notice mentioned therein, all borrowers would have to wait until physical possession is taken and/or a sale notice is issued to get back their running business after the business is brought to a grinding halt. This could not possibly have been the intention of the legislature. 4. Shri C.U. Singh, learned Senior Advocate, appearing on behalf of respondent no. 2, took us through the statutory provisions and the 2002 Rules and argued that the High Court may have gone beyond what was argued by his predecessor before the High Court. Shri Singh emphasised that his limited argument before this Court is that the stage of symbolic possession is not a stage at which any prejudice is caused to the borrower as he may continue to run his business. Section 13(6) does not come in at this stage at all, and section 13(13), which interdicts a borrower after receipt of a notice under section 13(2) to transfer by way of sale, lease or otherwise, other than in the ordinary course of business, any of his secured assets without prior written consent of the secured creditor, is the only restraint that continues to attach after symbolic possession is taken. According to him, as no prejudice is caused to the borrower at this stage, it is clear that \u201cpossession\u201d spoken of in section 13(4) can only mean actual physical possession. This becomes clear on a reading of section 13(4)(c) which makes it clear that a manager can only manage the secured assets the possession of which has been taken over by the secured creditor, if actual physical possession has been parted with. According to the learned Senior Advocate, therefore, the object of the Act will be defeated if a debtor can approach the Debts Recovery Tribunal at such stage when no prejudice is caused to him, thereby rendering what is statutorily granted to a creditor futile. He relied upon observations in various Supreme Court judgments to buttress his stand that it is only at the stage of actual physical possession that an application can be filed under section 17 and not before. 5. Shri Ranjit Kumar, learned Senior Advocate, appearing on behalf of the respondents in Civil Appeal arising out of SLP(C) No.12841 of 2018, went on to argue that all the sub-clauses in section 13(4) must be construed together. If that is done, it is clear that under sub-clauses (b) and (c), management and possession must physically be taken over. Therefore, under sub-clause (a), the expression \u201cpossession\u201d must also mean actual physical possession. According to the learned Senior Advocate, the measures taken under section 13 must also be read with sections 14 and 15. It is clear that under section 14, actual physical possession is to be handed over by the Chief Metropolitan Magistrate or the District Magistrate to the secured creditor, and under section 15, management of the business has actually to be taken over as two managements cannot possibly continue at the same time. Read in this light, the scheme of the Act, therefore, is clear and it becomes equally clear that only actual physical possession is referred to in section 13(4)(a) before a section 17 application can be filed. He also referred to section 17(3) to further argue that restoration of possession of secured assets could only refer to restoration of actual physical possession thereby strengthening his interpretation of sections 13 and 17 of the Act. According to him, under section 19, compensation is also payable where possession taken is not in accordance with the provisions of the Act and 2002 Rules, again making it clear that when the Court or Tribunal directs the secured creditor to return such secured asset to the borrowers, compensation may be paid. Returning secured assets obviously would mean assets of which physical possession has been taken. When it came to reading rules 8(1) and 8(3) of the 2002 Rules, according to Shri Ranjit Kumar, rule 8(3) is the next step after symbolic possession is taken over under rule 8(1), and without taking of actual physical possession under rule 8(3), no sale can be made of any secured assets. Like Shri C.U. Singh before him, he agreed that the High Court had perhaps gone a little too far in its conclusion, and that the moment any real prejudice is caused to the borrower, the borrower can certainly approach the Tribunal. This would also include the stage at which a sale notice is issued under rule 8. 6. Shri Ashish Dholakia, learned Advocate, appearing for the intervenor, State Bank of India, referred to the objects of the 2002 Act and relied upon the judgment of this Court in Standard Chartered Bank v. V. Noble Kumar & Ors., (2013) 9 SCC 620 (\u201cNoble Kumar\u201d). He argued that if we were to grant an opportunity to a debtor to approach the Tribunal at the stage of symbolic possession, there would be little difference between the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as the \u201cRecovery of Debts Act\u201d) and the SARFAESI Act, and thus, we would destroy the very object for which the SARFAESI Act was enacted, namely, so that banks could recover their debts by selling properties outside the court process, something that the Recovery of Debts Act did not envisage. He also referred to and relied upon section 3 of the Transfer of Property Act for the definition of \u201ca person is said to have notice\u201d and Explanation II in particular, which referred to actual possession. According to him therefore, the correct stage would be the stage at which actual physical possession has been taken, upon which a debtor may then approach the Debts Recovery Tribunal under section 17. 7. Having heard learned counsel for the parties, we may first set out the Statement of Objects and Reasons for the 2002 Act. The Statement of Objects and Reasons for the 2002 Act read as follows: \u201cStatement of Objects and Reasons.\u2014The financial sector has been one of the key drivers in India's efforts to achieve success in rapidly developing its economy. While the banking industry in India is progressively complying with the international prudential norms and accounting practices there are certain areas in which the banking and financial sector do not have a level playing field as compared to other participants in the financial markets in the world. There is no legal provision for facilitating securitisation of financial assets of banks and financial institutions. Further, unlike international banks, the banks and financial institutions in India do not have power to take possession of securities and sell them. Our existing legal framework relating to commercial transactions has not kept pace with the changing commercial practices and financial sector reforms. This has resulted in slow pace of recovery of defaulting loans and mounting levels of non-performing assets of banks and financial institutions. Narasimham Committee I and II and Andhyarujina Committee constituted by the Central Government for the purpose of examining banking sector reforms have considered the need for changes in the legal system in respect of these areas. These Committees, inter alia, have suggested enactment of a new legislation for securitisation and empowering banks and financial institutions to take possession of the securities and to sell them without the intervention of the court. Acting on these suggestions, the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Ordinance, 2002 was promulgated on the 21st June, 2002 to regulate securitisation and reconstruction of financial assets and enforcement of security interest and for matters connected therewith or incidental thereto. The provisions of the Ordinance would enable banks and financial institutions to realise long-term assets, manage problem of liquidity, asset liability mismatches and improve recovery by exercising powers to take possession of securities, sell them and reduce non-performing assets by adopting measures for recovery or reconstruction. 2. It is now proposed to replace the Ordinance by a Bill, which, inter alia, contains provisions of the Ordinance to provide for\u2014 (a) registration and regulation of securitisation companies or reconstruction companies by the Reserve Bank of India; (b) facilitating securitisation of financial assets of banks and financial institutions with or without the benefit of underlying securities; (c) facilitating easy transferability of financial assets by the securitisation company or reconstruction company to acquire financial assets of banks and financial institutions by issue of debentures or bonds or any other security in the nature of a debenture; (d) empowering securitisation companies or reconstruction companies to raise funds by issue of security receipts to qualified institutional buyers; (e) facilitating reconstruction of financial assets acquired by exercising powers of enforcement of securities or change of management or other powers which are proposed to be conferred on the banks and financial institutions; (f) declaration of any securitisation company or reconstruction company registered with the Reserve Bank of India as a public financial institution for the purpose of Section 4-A of the Companies Act, 1956; (g) defining \u201csecurity interest\u201d as any type of security including mortgage and charge on immovable properties given for due repayment of any financial assistance given by any bank or financial institution; (h) empowering banks and financial institutions to take possession of securities given for financial assistance and sell or lease the same or take over management in the event of default, i.e. classification of the borrower's account as non-performing asset in accordance with the directions given or guidelines issued by the Reserve Bank of India from time to time; (i) the rights of a secured creditor to be exercised by one or more of its officers authorised in this behalf in accordance with the rules made by the Central Government; (j) an appeal against the action of any bank or financial institution to the concerned Debts Recovery Tribunal and a second appeal to the Appellate Debts Recovery Tribunal; (k) setting-up or causing to be set-up a Central Registry by the Central Government for the purpose of registration of transactions relating to securitisation, asset reconstruction and creation of security interest; (l) application of the proposed legislation initially to banks and financial institutions and empowerment of the Central Government to extend the application of the proposed legislation to non-banking financial companies and other entities; (m) non-application of the proposed legislation to security interests in agricultural lands, loans not exceeding Rupees One lakh and cases where eighty per cent of the loans are repaid by the borrower. 3. The Bill seeks to achieve the above objects.\u201d Section 13 with which we are concerned reads as follows: \u201c13. Enforcement of security interest.\u2014(1) Notwithstanding anything contained in Section 69 or Section 69-A of the Transfer of Property Act, 1882 (4 of 1882), any security interest created in favour of any secured creditor may be enforced, without the intervention of the court or tribunal, by such creditor in accordance with the provisions of this Act. (2) Where any borrower, who is under a liability to a secured creditor under a security agreement, makes any default in repayment of secured debt or any instalment thereof, and his account in respect of such debt is classified by the secured creditor as non-performing asset, then, the secured creditor may require the borrower by notice in writing to discharge in full his liabilities to the secured creditor within sixty days from the date of notice failing which the secured creditor shall be entitled to exercise all or any of the rights under sub-section (4): [Provided that\u2014 (i) the requirement of classification of secured debt as non-performing asset under this sub-section shall not apply to a borrower who has raised funds through issue of debt securities; and (ii) in the event of default, the debenture trustee shall be entitled to enforce security interest in the same manner as provided under this section with such modifications as may be necessary and in accordance with the terms and conditions of security documents executed in favour of the debenture trustee;] (3) The notice referred to in sub-section (2) shall give details of the amount payable by the borrower and the secured assets intended to be enforced by the secured creditor in the event of non-payment of secured debts by the borrower. [(3-A) If, on receipt of the notice under sub-section (2), the borrower makes any representation or raises any objection, the secured creditor shall consider such representation or objection and if the secured creditor comes to the conclusion that such representation or objection is not acceptable or tenable, he shall communicate 3[within fifteen days] of receipt of such representation or objection the Ins. by Act 44 of 2016, S. 11(i) (w.e.f. 1-9-2016). Ins. by Act 30 of 2004, S. 8 (w.r.e.f. 11-11-2004). Subs. for \u201cwithin one week\u201d by Act 1 of 2013, S. 5(a) (w.e.f. 15-1-2013). reasons for non-acceptance of the representation or objection to the borrower : Provided that the reasons so communicated or the likely action of the secured creditor at the stage of communication of reasons shall not confer any right upon the borrower to prefer an application to the Debts Recovery Tribunal under Section 17 or the Court of District Judge under Section 17-A.] (4) In case the borrower fails to discharge his liability in full within the period specified in sub-section (2), the secured creditor may take recourse to one or more of the following measures to recover his secured debt, namely:\u2014 (a) take possession of the secured assets of the borrower including the right to transfer by way of lease, assignment or sale for realising the secured asset; [(b) take over the management of the business of the borrower including the right to transfer by way of lease, assignment or sale for realising the secured asset: Provided that the right to transfer by way of lease, assignment or sale shall be exercised only where the substantial part of the business of the borrower is held as security for the debt: Provided further that where the management of whole, of the business or part of the business is severable, the secured creditor shall take over the management of such business of the borrower which is relatable to the security for the debt;] Subs. by Act 30 of 2004, S. 8 (w.r.e.f. 11-11-2004). Prior to substitution it read as: \u201c(b) take over the management of the secured assets of the borrower including the right to transfer by way of lease, assignment or sale and realise the secured asset;\u201d (c) appoint any person (hereafter referred to as the manager), to manage the secured assets the possession of which has been taken over by the secured creditor; (d) require at any time by notice in writing, any person who has acquired any of the secured assets from the borrower and from whom any money is due or may become due to the borrower, to pay the secured creditor, so much of the money as is sufficient to pay the secured debt. (5) Any payment made by any person referred to in clause (d) of sub-section (4) to the secured creditor shall give such person a valid discharge as if he has made payment to the borrower. [(5-A) Where the sale of an immovable property, for which a reserve price has been specified, has been postponed for want of a bid of an amount not less than such reserve price, it shall be lawful for any officer of the secured creditor, if so authorised by the secured creditor in this behalf, to bid for the immovable property on behalf of the secured creditor at any subsequent sale. (5-B) Where the secured creditor, referred to in sub- section (5-A), is declared to be the purchaser of the immovable property at any subsequent sale, the amount of the purchase price shall be adjusted towards the amount of the claim of the secured creditor for which the auction of enforcement of security interest is taken by the secured creditor, under sub-section (4) of Section 13. (5-C) The provisions of Section 9 of the Banking Regulation Act, 1949 (10 of 1949) shall, as far as may be, apply to the immovable property acquired by secured creditor under sub-section (5-A).] Ins. by Act 1 of 2013, S. 5(b) (w.e.f. 15-1-2013) (6) Any transfer of secured asset after taking possession thereof or take over of management under sub-section (4), by the secured creditor or by the manager on behalf of the secured creditor shall vest in the transferee all rights in, or in relation to, the secured asset transferred as if the transfer had been made by the owner of such secured asset. xxx xxx xxx (13) No borrower shall, after receipt of notice referred to in sub-section (2), transfer by way of sale, lease or otherwise (other than in the ordinary course of his business) any of his secured assets referred to in the notice, without prior written consent of the secured creditor.\u201d Section 14(1) of the Act reads as follows: \u201c14. Chief Metropolitan Magistrate or District Magistrate to assist secured creditor in taking possession of secured asset.\u2014(1) Where the possession of any secured assets is required to be taken by the secured creditor or if any of the secured asset is required to be sold or transferred by the secured creditor under the provisions of this Act, the secured creditor may, for the purpose of taking possession or control of any such secured assets, request, in writing, the Chief Metropolitan Magistrate or the District Magistrate within whose jurisdiction any such secured asset or other documents relating thereto may be situated or found, to take possession thereof, and the Chief Metropolitan Magistrate or, as the case may be, the District Magistrate shall, on such request being made to him\u2014 (a) take possession of such asset and documents relating thereto; and (b) forward such asset and documents to the secured creditor: xxx xxx xxx\u201d Section 15(1) of the Act reads as follows: \u201c15. Manner and effect of takeover of management.\u2014(1) 6[When the management of business of a borrower is taken over by a 7[asset reconstruction company] under clause (a) of Section 9 or, as the case may be, by a secured creditor under clause (b) of sub-section (4) of Section 13], the secured creditor may, by publishing a notice in a newspaper published in English language and in a newspaper published in an Indian language in circulation in the place where the principal office of the borrower is situated, appoint as many persons as it thinks fit\u2014 (a) in a case in which the borrower is a company as defined in the Companies Act, 1956 (1 of 1956), to be the directors of that borrower in accordance with the provisions of that Act; or (b) in any other case, to be the administrator of the business of the borrower. xxx xxx xxx\u201d Section 17 of the Act reads as follows: \u201c8[17. Application against measures to recover secured debts].\u2014(1) Any person (including Subs. for \u201cWhen the management of business of a borrower is taken over by a secured creditor\u201d by Act 30 of 2004, S. 9 (w.r.e.f. 11-11-2004). Subs. for \u201csecuritisation company or a reconstruction company\u201d by Act 44 of 2016, S. 3(i) (w.e.f. 1-9-2016). Subs. for \u201cRight to appeal\u201d by Act 44 of 2016, S. 14(i) (w.e.f. 1-9-2016). borrower,) aggrieved by any of the measures referred to in sub-section (4) of Section 13 taken by the secured creditor or his authorised officer under this chapter, 9[may make an application along with such fee, as may be prescribed,] to the Debts Recovery Tribunal having jurisdiction in the matter within forty-five days from the date on which such measure had been taken: [Provided that different fees may be prescribed for making the application by the borrower and the person other than the borrower.] [Explanation.\u2014For the removal of doubts, it is hereby declared that the communication of the reasons to the borrower by the secured creditor for not having accepted his representation or objection or the likely action of the secured creditor at the stage of communication of reasons to the borrower shall not entitle the person (including borrower) to make an application to the Debts Recovery Tribunal under sub-section (1) of section 17.] [(1-A) An application under sub-section (1) shall be filed before the Debts Recovery Tribunal within the local limits of whose jurisdiction\u2014 (a) the cause of action, wholly or in part, arises; (b) where the secured asset is located; or (c) the branch or any other office of a bank or financial institution is maintaining an account in which debt claimed is outstanding for the time being.] Subs. for \u201cmay prefer an appeal\u201d by Act 30 of 2004, S. 10 (w.r.e.f. 21-6-2002). Ins. by Act 30 of 2004, S. 10 (w.r.e.f. 21-6-2002). Ins. by Act 30 of 2004, S. 10 (w.r.e.f. 11-11-2004). Ins. by Act 44 of 2016, S. 14(ii) (w.e.f. 1-9-2016). [(2) The Debts Recovery Tribunal shall consider whether any of the measures referred to in sub- section (4) of Section 13 taken by the secured creditor for enforcement of security are in accordance with the provisions of this Act and the rules made thereunder. [(3) If, the Debts Recovery Tribunal, after examining the facts and circumstances of the case and evidence produced by the parties, comes to the conclusion that any of the measures referred to in sub-section (4) of section 13, taken by the secured creditor are not in accordance with the provisions of this Act and the rules made thereunder, and require restoration of the management or restoration of possession, of the secured assets to the borrower or other aggrieved person, it may, by order,\u2014 (a) declare the recourse to any one or more measures referred to in sub-section (4) of section 13 taken by the secured creditor as invalid; and Subs. for sub-sections (2) and (3) by Act 30 of 2004, S. 10 (w.r.e.f. 11-11-2004). Prior to substitution sub-sections (2) and (3) read as: \u201c(2) Where an appeal is preferred by a borrower, such appeal shall not be entertained by the Debts Recovery Tribunal unless the borrower has deposited with the Debts Recovery Tribunal seventy-five per cent of the amount claimed in the notice referred to in sub-section (2) of Section 13: Provided that the Debts Recovery Tribunal may, for reasons to be recorded in writing, waive or reduce the amount to be deposited under this section. (3) Save as otherwise provided in this Act, the Debts Recovery Tribunal shall, as far as may be, dispose of the appeal in accordance with the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993) and rules made thereunder.\u201d Subs. by Act 44 of 2016, S. 14(iii) (w.e.f. 1-9-2016). Prior to substitution it read as: \u201c(3) If, the Debts Recovery Tribunal, after examining the facts and circumstances of the case and evidence produced by the parties, comes to the conclusion that any of the measures referred to in sub-section (4) of Section 13, taken by the secured creditor are not in accordance with the provisions of this Act and the rules made thereunder, and require restoration of the management of the business to the borrower or restoration of possession of the secured assets to the borrower, it may by order, declare the recourse to any one or more measures referred to in sub-section (4) of Section 13 taken by the secured creditors as invalid and restore the possession of the secured assets to the borrower or restore the management of the business to the borrower, as the case may be, and pass such order as it may consider appropriate and necessary in relation to any of the recourse taken by the secured creditor under sub-section (4) of Section 13.\u201d. (b) restore the possession of secured assets or management of secured assets to the borrower or such other aggrieved person, who has made an application under sub-section (1), as the case may be; and (c) pass such other direction as it may consider appropriate and necessary in relation to any of the recourse taken by the secured creditor under sub-section (4) of section 13.] (4) If, the Debts Recovery Tribunal declares the recourse taken by a secured creditor under sub- section (4) of Section 13, is in accordance with the provisions of this Act and the rules made thereunder, then, notwithstanding anything contained in any other law for the time being in force, the secured creditor shall be entitled to take recourse to one or more of the measures specified under sub-section (4) of Section 13 to recover his secured debt. [(4-A) Where\u2014 (i) any person, in an application under sub- section (1), claims any tenancy or leasehold rights upon the secured asset, the Debt Recovery Tribunal, after examining the facts of the case and evidence produced by the parties in relation to such claims shall, for the purposes of enforcement of security interest, have the jurisdiction to examine whether lease or tenancy,\u2014 (a) has expired or stood determined; or Ins. by Act 44 of 2016, S. 14(iv) (w.e.f. 1-9-2016). (b) is contrary to Section 65-A of the Transfer of Property Act, 1882 (4 of 1882); or (c) is contrary to terms of mortgage; or (d) is created after the issuance of notice of default and demand by the Bank under sub-section (2) of Section 13 of the Act; and (ii) the Debt Recovery Tribunal is satisfied that tenancy right or leasehold rights claimed in secured asset falls under the sub-clause (a) or sub-clause (b) or sub- clause (c) or sub-clause (d) of clause (i), then notwithstanding anything to the contrary contained in any other law for the time being in force, the Debt Recovery Tribunal may pass such order as it deems fit in accordance with the provisions of this Act.] (5) Any application made under sub-section (1) shall be dealt with by the Debts Recovery Tribunal as expeditiously as possible and disposed of within sixty days from the date of such application: Provided that the Debts Recovery Tribunal may, from time to time, extend the said period for reasons to be recorded in writing, so, however, that the total period of pendency of the application with the Debts Recovery Tribunal, shall not exceed four months from the date of making of such application made under sub-section (1). (6) If the application is not disposed of by the Debts Recovery Tribunal within the period of four months as specified in sub-section (5), any party to the application may make an application, in such form as may be prescribed, to the Appellate Tribunal for directing the Debts Recovery Tribunal for expeditious disposal of the application pending before the Debts Recovery Tribunal and the Appellate Tribunal may, on such application, make an order for expeditious disposal of the pending application by the Debts Recovery Tribunal. (7) Save as otherwise provided in this Act, the Debts Recovery Tribunal shall, as far as may be, dispose of the application in accordance with the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993) and the rules made thereunder.]\u201d Rule 8 of the 2002 Rules reads as follows: \u201c8. Sale of immovable secured assets.\u2014(1) Where the secured asset is an immovable property, the authorised officer shall take or cause to be taken possession, by delivering a possession notice prepared as nearly as possible in Appendix IV to these rules, to the borrower and by affixing the possession notice on the outer door or at such conspicuous place of the property. (2) 16[The possession notice as referred to in sub- rule (1) shall also be published, as soon as possible but in any case not later than seven days from the date of taking possession, in two leading newspapers], one in vernacular language having sufficient circulation in that locality, by the authorised officer. [(2-A) All notices under these rules may also be served upon the borrower through electronic mode of service, in addition to the modes prescribed under sub-rule (1) and sub-rule (2) of rule 8.] Subs. for \u201cThe possession notice as referred to in sub-rule (1) shall also be published in two leading newspaper\u201d by S.O. 1837(E), dated 26-10-2007 (w.e.f. 26-10-2007). Ins. by G.S.R. 1046(E), dt. 3-11-2016 (w.e.f. 4-11-2016). (3) In the event of possession of immovable property is actually taken by the authorised officer, such property shall be kept in his own custody or in the custody of any person authorised or appointed by him, who shall take as much care of the property in his custody as a owner of ordinary prudence would, under the similar circumstances, take of such property. (4) The authorised officer shall take steps for preservation and protection of secured assets and insure them, if necessary, till they are sold or otherwise disposed of. (5) Before effecting sale of the immovable property referred to in sub-rule (1) of rule 9, the authorised officer shall obtain valuation of the property from an approved valuer and in consultation with the secured creditor, fix the reserve price of the property and may sell the whole or any part of such immovable secured asset by any of the following methods:\u2014 (a) by obtaining quotations from the persons dealing with similar secured assets or otherwise interested in buying the such assets; or (b) by inviting tenders from the public; [(c) by holding public auction including through e-auction mode; or] (d) by private treaty. (6) the authorised officer shall serve to the borrower a notice of thirty days for sale of the immovable secured assets, under sub-rule (5): Provided that if the sale of such secured asset is being effected by either inviting tenders from the Subs. by G.S.R. 1046(E), dt. 3-11-2016 (w.e.f. 4-11-2016). Prior to substitution it read as: \u201c(c) by holding public auction; or\u201d public or by holding public auction, the secured creditor shall cause a public notice in two leading newspapers one in vernacular language having sufficient circulation in the locality by setting out the terms of sale, which shall include,\u2014 (a) the description of the immovable property to be sold, including the details of the encumbrances known to the secured creditor; (b) the secured debt for recovery of which the property is to be sold; (c) reserve price, below which the property may not be sold; (d) time and place of public auction or the time after which sale by any other mode shall be completed; (e) depositing earnest money as may be stipulated by the secured creditor; (f) any other thing which the authorised officer considers it material for a purchaser to know in order to judge the nature and value of the property. (7) Every notice of sale shall be affixed on a conspicuous part of the immovable property and may, if the authorised officer deems it fit, put on the website of the secured creditor on the Internet. (8) Sale by any methods other than public auction or public tender, shall be on such terms as may be settled 19[between the secured creditor and the proposed purchaser in writing].\u201d Appendix IV to the 2002 Rules reads as follows: Subs. for \u201cbetween the parties in writing\u201d by G.S.R. 1046(E), dt. 3-11-2016 (w.e.f. 4-11-2016). \u201cAPPENDIX IV [See rule 8(1)] POSSESSION NOTICE (for immovable property) Whereas The undersigned being the authorised officer of the \u2026\u2026\u2026..\u2026\u2026\u2026\u2026\u2026\u2026\u2026. (name of the Institution) under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest 20[Act, 2002 (54 of 2002)] and in exercise of powers conferred under Section 13(12) read with 21[Rule 3] of the Security Interest (Enforcement) Rules, 2002 issued a demand notice dated \u2026\u2026\u2026\u2026\u2026\u2026. calling upon the borrower Shri \u2026\u2026\u2026\u2026\u2026\u2026..\u2026\u2026\u2026. /M/s \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026 to repay the amount mentioned in the notice being Rs \u2026\u2026\u2026\u2026\u2026 (in words \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026) within 60 days from the date of receipt of the said notice. [The borrower having failed to repay the amount, notice is hereby given to the borrower and the public in general that the undersigned has taken possession of the property described herein below in exercise of powers conferred on him under sub- section (4) of Section 13 of Act read with Rule 8 of the Security Interest Enforcement) Rules, 2002 on this the \u2026\u2026.day of \u2026.. of the year\u2026\u2026] The borrower in particular and the public in general is hereby cautioned not to deal with the property and any dealings with the property will be subject to the charge of the \u2026\u2026\u2026\u2026.. \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026. (name of the Institution) for an amount Rs. \u2026\u2026\u2026\u2026\u2026\u2026.. and interest thereon. Subs. for \u201cOrdinance\u201d by S.O. 103(E), dated 2-2-2007 (w.e.f. 2-2-2007). Subs. for \u201cRule 9\u201d by G.S.R. 1046(E), dt. 3-11-2016 (w.e.f. 4-11-2016). Subs. by G.S.R. 1046(E), dt. 3-11-2016 (w.e.f. 4-11-2016). [The borrower\u2019s attention is invited to provisions of sub-section (8) of Section 13 of the Act, in respect of time available, to redeem the secured assets.] Description of the Immovable Property All that part and parcel of the property consisting of Flat No. \u2026\u2026 /Plot No. \u2026\u2026\u2026 In Survey No. \u2026\u2026\u2026\u2026/City or Town Survey No. \u2026\u2026\u2026\u2026 /Khasara No. \u2026\u2026.\u2026\u2026\u2026\u2026\u2026 within the registration sub-district \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026. and District \u2026\u2026\u2026\u2026\u2026\u2026\u2026.. Bounded: On the North by On the South by On the East by On the West by sd/- Authorised Officer (Name of Institution) Date: Place:\u201d 8. This Court in Mardia Chemicals (supra) after referring in detail to the provisions of the Act held: \u201c48. The next safeguard available to a secured borrower within the framework of the Act is to approach the Debts Recovery Tribunal under Ins. by G.S.R. 1046(E), dt. 3-11-2016 (w.e.f. 4-11-2016). Section 17 of the Act. Such a right accrues only after measures are taken under sub-section (4) of Section 13 of the Act. xxx xxx xxx 59. We may like to observe that proceedings under Section 17 of the Act, in fact, are not appellate proceedings. It seems to be a misnomer. In fact it is the initial action which is brought before a forum as prescribed under the Act, raising grievance against the action or measures taken by one of the parties to the contract. It is the stage of initial proceeding like filing a suit in civil court. As a matter of fact proceedings under Section 17 of the Act are in lieu of a civil suit which remedy is ordinarily available but for the bar under Section 34 of the Act in the present case. We may refer to a decision of this Court in Ganga Bai v. Vijay Kumar[(1974) 2 SCC 393] where in respect of original and appellate proceedings a distinction has been drawn as follows: (SCC p. 397, para 15) \u201cThere is a basic distinction between the right of suit and the right of appeal. There is an inherent right in every person to bring a suit of civil nature and unless the suit is barred by statute one may, at one's peril, bring a suit of one's choice. It is no answer to a suit, howsoever frivolous to claim, that the law confers no such right to sue. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. But the position in regard to appeals is quite the opposite. The right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law. That explains why the right of appeal is described as a creature of statute.\u201d xxx xxx xxx 62. As indicated earlier, the position of the appeal under Section 17 of the Act is like that of a suit in the court of the first instance under the Code of Civil Procedure. No doubt, in suits also it is permissible, in given facts and circumstances and under the provisions of the law to attach the property before a decree is passed or to appoint a receiver and to make a provision by way of interim measure in respect of the property in suit. But for obtaining such orders a case for the same is to be made out in accordance with the relevant provisions under the law. There is no such provision under the Act. xxx xxx xxx 80. Under the Act in consideration, we find that before taking action a notice of 60 days is required to be given and after the measures under Section 13(4) of the Act have been taken, a mechanism has been provided under Section 17 of the Act to approach the Debts Recovery Tribunal. The abovenoted provisions are for the purpose of giving some reasonable protection to the borrower. Viewing the matter in the above perspective, we find what emerges from different provisions of the Act, is as follows: 1. Under sub-section (2) of Section 13 it is incumbent upon the secured creditor to serve 60 days\u2019 notice before proceeding to take any of the measures as provided under sub-section (4) of Section 13 of the Act. After service of notice, if the borrower raises any objection or places facts for consideration of the secured creditor, such reply to the notice must be considered with due application of mind and the reasons for not accepting the objections, howsoever brief they may be, must be communicated to the borrower. In connection with this conclusion we have already held a discussion in the earlier part of the judgment. The reasons so communicated shall only be for the purposes of the information/knowledge of the borrower without giving rise to any right to approach the Debts Recovery Tribunal under Section 17 of the Act, at that stage. 2. As already discussed earlier, on measures having been taken under sub- section (4) of Section 13 and before the date of sale/auction of the property it would be open for the borrower to file an appeal (petition) under Section 17 of the Act before the Debts Recovery Tribunal. 3. That the Tribunal in exercise of its ancillary powers shall have jurisdiction to pass any stay/interim order subject to the condition as it may deem fit and proper to impose. 4. In view of the discussion already held in this behalf, we find that the requirement of deposit of 75% of the amount claimed before entertaining an appeal (petition) under Section 17 of the Act is an oppressive, onerous and arbitrary condition against all the canons of reasonableness. Such a condition is invalid and it is liable to be struck down. 5. As discussed earlier in this judgment, we find that it will be open to maintain a civil suit in civil court, within the narrow scope and on the limited grounds on which they are permissible, in the matters relating to an English mortgage enforceable without intervention of the court.\u201d Close on the heels of this judgment, the 2002 Act was amended on 30.12.2004 with effect from 11.11.2004. The Statement of Objects and Reasons for the Amended Act reads as under: \u201cStatement of Objects and Reasons.\u2014The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 was enacted to regulate securitisation and reconstruction of financial assets and enforcement of security interest and for matters connected thereto. The Act enables the banks and financial institutions to realise long-term assets, manage problems of liquidity, asset liability mis-match and improve recovery by exercising powers to take possession of securities, sell them and reduce non- performing assets by adopting measures for recovery or reconstruction. The Act further provides for setting up of asset reconstruction companies which are empowered to take possession of secured assets of the borrower including the right to transfer by way of lease, assignment or sale and realise the secured assets and take over the management of the business of the borrower. 2. The Hon\u2019ble Supreme Court, in the case of Mardia Chemicals Ltd. v. Union of India, A.I.R. 2004 S.C. 2371 : (2004) 4 S.C.C 311, inter alia,\u2014 (a) upheld the validity of the provisions of the said Act except that of sub-section (2) of Section 17 which was declared ultra vires Article 14 of the Constitution. The said sub-section provides for deposit of seventy-five per cent. of the amount claimed before entertaining an appeal (petition) by the Debts Recovery Tribunal (DRT) under Section 17; (b) observed that in cases where a secured creditor has taken action under sub-section (4) of Section 13 of the said Act, it would be open to borrowers to file appeals under Section 17 of the Act within the limitation as prescribed therefor. It also observed that if the borrower, after service of notice under sub-section (2) of Section 13 of the said Act, raises any objection or places facts for consideration of the secured creditor, such reply to the notice must be considered with due application of mind and the reasons for not accepting the objections, howsoever brief that may be, must be communicated to the borrower. The reasons so communicated shall only be for the purposes of the information/knowledge of the borrower without giving rise to any right to approach the Debts Recovery Tribunal under Section 17 of the Act, at that stage. 3. In view of the above judgment of the Hon\u2019ble Supreme Court and also to discourage the borrowers to postpone the repayment of their dues and also enable the secured creditor to speedily recover their debts, if required, by enforcement of security or other measures specified in sub-section (4) of Section 13 of the said Act, it had become necessary to amend the provisions of the said Act. 4. Since the Parliament was not in session and it was necessary to take immediate action to amend the said Act for the above reasons, the Enforcement of Security Interest and Recovery of Debts Laws (Amendment) Ordinance, 2004 was promulgated on the 11th November, 2004. 5. The said Ordinance amends the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 and the Companies Act, 1956. Chapter II of the Ordinance which amends the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002,\u2014 (a) require the secured creditor to consider, in response to the notice issued by the secured creditor under sub-section (2) of Section 13 of the said Act, any representation made or objection raised by the borrower and cast an obligation upon the secured creditor to communicate within one week of receipt of such representation or objection the reasons for non- acceptance of the representation or objection to the borrower and take possession of the secured asset only after reasons for not accepting the objections of the borrower have been communicated to him in writing; (b) enable the borrower to make an application before the Debts Recovery Tribunal without making any deposit (instead of filing an appeal before the Debts Recovery Tribunal after depositing seventy-five per cent. of the amount claimed with the notice by the secured creditor); (c) provides that the Debts Recovery Tribunal shall dispose of the application as expeditiously as possible and dispose of such application within sixty days from the date of such applications so that the total period of pendency of the application with such Tribunal shall not exceed four months; (d) make provision for transfer of pending applications to any one of the Debts Recovery Tribunal in certain cases; (e) enables any person aggrieved by any order made by the Debts Recovery Tribunal to file an appeal to the Debts Recovery Appellate Tribunal after depositing with the Appellate Tribunal fifty per cent. of amount of debt due from him, as claimed by the secured creditor or determined by the Debts Recovery Tribunal, whichever is less; (f) enables the borrower residing in the State of Jammu and Kashmir to make an application to the Court of District Judge in that State having jurisdiction over the borrower and make provision for filing an appeal to the High Court from the order of the Court of District Judge; (g) makes provision for validation of the fees levied under the said Act before the commencement of this Ordinance. xxx xxx xxx\u201d The Act was accordingly amended in accordance with the aforesaid judgment. 9. The judgment in Mardia Chemicals (supra) had made it clear in paragraph 80 that all measures having been taken under section 13(4), and before the date of sale auction, it would be open for the borrower to file a petition under section 17 of the Act. This paragraph appears to have been missed by the Full Bench in the impugned judgment. 10. A reading of section 13 would make it clear that where a default in repayment of a secured debt or any instalment thereof is made by a borrower, the secured creditor may require the borrower, by notice in writing, to discharge in full his liabilities to the secured creditor within 60 days from the date of notice. It is only when the borrower fails to do so that the secured creditor may have recourse to the provisions contained in section 13(4) of the Act. Section 13(3-A) was inserted by the 2004 Amendment Act, pursuant to Mardia Chemicals (supra), making it clear that if on receipt of the notice under section 13(2), the borrower makes a representation or raises an objection, the secured creditor is to consider such representation or objection and give reasons for non- acceptance. The proviso to section 13(3-A) makes it clear that this would not confer upon the borrower any right to prefer an application to the Debts Recovery Tribunal under section 17 as at this stage no action has yet been taken under section 13(4). 11. When we come to section 13(4)(a), what is clear is that the mode of taking possession of the secured assets of the borrower is specified by rule 8. Under section 38 of the Act, the Central Government may make rules to carry out the provisions of the Act. One such rule is rule 8. Rule 8(1) makes it clear that \u201cthe authorised officer shall take or cause to be taken possession\u201d. The expression \u201ccause to be taken\u201d only means that the authorised officer need not himself take possession, but may, for example, appoint an agent to do so. What is important is that such taking of possession is effected under sub-rule (1) of rule 8 by delivering a possession notice prepared in accordance with Appendix IV of the 2002 Rules, and by affixing such notice on the outer door or other conspicuous place of the property concerned. Under sub-rule (2), such notice shall also be published within 7 days from the date of such taking of possession in two leading newspapers, one in the vernacular language having sufficient circulation in the locality. This is for the reason that when we come to Appendix IV, the borrower in particular, and the public in general is cautioned by the said possession notice not to deal with the property as possession of the said property has been taken. This is for the reason that, from this stage on, the secured asset is liable to be sold to realise the debt owed, and title in the asset divested from the borrower and complete title given to the purchaser, as is mentioned in section 13(6) of the Act. There is, thus, a radical change in the borrower dealing with the secured asset from this stage. At the stage of a section 13(2) notice, section 13(13) interdicts the borrower from transferring the secured asset (otherwise than in the ordinary course of his business) without prior written consent of the secured creditor. But once a possession notice is given under rule 8(1) and 8(2) by the secured creditor to the borrower, the borrower cannot deal with the secured asset at all as all further steps to realise the same are to be taken by the secured creditor under the 2002 Rules. 12. Section 19, which is strongly relied upon by Shri Ranjit Kumar, also makes it clear that compensation is receivable under section 19 only when possession of secured assets is not in accordance with the provision of this Act and rules made thereunder.24 The scheme of section 13(4) read with rule 8(1) therefore makes it clear that the delivery of a possession notice together with affixation on the property and publication is one mode of taking \u201cpossession\u201d under section 13(4). This being the case, it is clear that section 13(6) kicks in as soon as this is done as the expression used in section 13(6) is \u201cafter taking possession\u201d. Also, it is clear that rule 8(5) to 8(8) also kick in as soon as \u201cpossession\u201d is taken under rule 8(1) and 8(2). The statutory scheme, therefore, in the present case is that once possession is taken under rule 8(1) and 8(2) read with section 13(4)(a), section 17 gets attracted, as this is one of the measures referred to in section 13(4) that has been taken by the secured creditor under Chapter III. 13. Rule 8(3) begins with the expression \u201cin the event of\u201d. These words make it clear that possession may be taken alternatively under sub-rule (3). The further expression used in That this is the general scheme of the Act is also clear from section 17(2) which states that the Debts Recovery Tribunal, when an application is filed before it, shall consider whether any of the measures referred to in section 13(4) taken by the secured creditor are in accordance with the provisions of the Act and rules made thereunder. sub-rule (3) is \u201cactually taken\u201d making it clear that physical possession is referred to by rule 8(3). Thus, whether possession is taken under either rule 8(1) and 8(2), or under rule 8(3), measures are taken by the secured creditor under section 13(4) for the purpose of attracting section 17(1). 14. The argument made by the learned counsel for the respondents that section 13(4)(a) has to be read in the light of sub-clauses (b) and (c) is therefore incorrect and must be rejected. Under sub-clause (c), a person is appointed as manager to manage the secured assets the possession of which has been taken over by the secured creditor only under rule 8(3). Further, the rule of noscitur a sociis cannot apply. Sub-clause (b) speaks of taking over management of the business of the borrower which is completely different from taking over possession of a secured asset of the borrower. Equally, sub-clause (d) does not speak of taking over either management or possession, but only speaks of paying the secured creditor so much of the money as is sufficient to pay off the secured debt. These arguments must therefore be rejected. 15. Equally fallacious is the argument that section 13(4) must be read in the light of sections 14 and 15. There is no doubt whatsoever that under section 14(1), the Magistrate takes possession of the asset and \u201cforwards\u201d such asset to the secured creditor. Equally, under section 15 there is no doubt that the management of the business of a borrower must actually be taken over. These are separate and distinct modes of exercise of powers by a secured creditor under the Act. Whereas sections 14 and 15 have to be read by themselves, section 13(4)(a), as has been held by us, has to be read with rule 8, and this being the case, this argument must also be rejected. 16. Yet another argument was made by the learned counsel for the respondents that section 17(3) would require restoration of possession of secured assets to the borrower, which can only happen if actual physical possession is taken over. Section 17(3) is a provision which arms the Debts Recovery Tribunal to give certain reliefs when applications are made before it by the borrower. One of the reliefs that can be given is restoration of possession. Other reliefs can also be given under the omnibus section 17(3)(c). Merely because one of the reliefs given is that of restoration of possession does not lead to the sequitur that only actual physical possession is therefore contemplated by section 13(4), since other directions that may be considered appropriate and necessary may also be given for wrongful recourse taken by the secured creditor to section 13(4). This argument again has no legs to stand on. 17. Another argument made by learned senior counsel for the respondents is that if we were to accept the construction of section 13(4) argued by the appellants, the object of the Act would be defeated. As has been pointed out hereinabove in the Statement of Objects and Reasons of the original enactment, paragraphs 2(i) and 2(j) make it clear that the rights of the secured creditor are to be exercised by officers authorised in this behalf in accordance with the rules made by the Central Government. Further, an appeal against the action of any bank or financial institution is provided to the concerned Debts Recovery Tribunal. It can thus be seen that though the rights of a secured creditor may be exercised by such creditor outside the court process, yet such rights must be in conformity with the Act. If not in conformity with the Act, such action is liable to be interfered with by the Debts Recovery Tribunal in an application made by the debtor/borrower. Thus, it can be seen that the object of the original enactment also includes secured creditors acting in conformity with the provisions of the Act to realise the secured debt which, if not done, gives recourse to the borrower to get relief from the Debts Recovery Tribunal. Equally, as has been seen hereinabove, the Statement of Objects and Reasons of the Amendment Act of 2004 also make it clear that not only do reasons have to be given for not accepting objections of the borrower under section 13(3-A), but that applications may be made before the Debts Recovery Tribunal without making the onerous pre-deposit of 75% which was struck down by this Court in Mardia Chemicals (supra). The object of the Act, therefore, is also to enable the borrower to approach a quasi- judicial forum in case the secured creditor, while taking any of the measures under section 13(4), does not follow the provisions of the Act in so doing. Take for example a case in which a secured creditor takes possession under rule 8(1) and 8(2) before the 60 days\u2019 period prescribed under section 13(2) is over. The borrower does not have to wait until actual physical possession is taken (this may never happen as after possession is taken under rule 8(1) and 8(2), the secured creditor may go ahead and sell the asset). The object of providing a remedy against the wrongful action of a secured creditor to a borrower will be stultified if the borrower has to wait until a sale notice is issued, or worse still, until a sale actually takes place. It is clear, therefore, that one of the objects of the Act, as carried out by rule 8(1) and 8(2) must also be subserved, namely, to provide the borrower with instant recourse to a quasi-judicial body in case of wrongful action taken by the secured creditor. 18. Another argument that was raised by learned senior counsel for the respondents is that the taking of possession under section 13(4)(a) must mean actual physical possession or otherwise, no transfer by way of lease can be made as possession of the secured asset would continue to be with the borrower when only symbolic possession is taken. This argument also must be rejected for the reason that what is referred to in section 13(4)(a) is the right to transfer by way of lease for realising the secured asset. One way of realising the secured asset is when physical possession is taken over and a lease of the same is made to a third party. When possession is taken under rule 8(1) and 8(2), the asset can be realised by way of assignment or sale, as has been held by us hereinabove. This being the case, it is clear that the right to transfer could be by way of lease, assignment or sale, depending upon which mode of transfer the secured creditor chooses for realising the secured asset. Also, the right to transfer by way of assignment or sale can only be exercised in accordance with rules 8 and 9 of the 2002 Rules which require various pre-conditions to be met before sale or assignment can be effected. Equally, transfer by way of lease can be done in future in cases where actual physical possession is taken of the secured asset after possession is taken under rule 8(1) and 8(2) at a future point in time. If no such actual physical possession is taken, the right to transfer by way of assignment or sale for realising the secured asset continues. This argument must also, therefore, be rejected. 19. Shri Ashish Dholakia, learned Advocate, appearing for the intervenor, State Bank of India, argued that if we were to upset the Full Bench judgment, there would be little difference between the Recovery of Debts Act and the SARFAESI Act as banks would not be able to recover their debts by selling properties outside the court process without constant interference by the Debts Recovery Tribunal. We are of the view that this argument has no legs to stand on for the reason that banks and financial institutions can recover their debts by selling properties outside the court process under the SARFAESI Act by adhering to the statutory conditions laid down by the said Act. It is only when such statutory conditions are not adhered to that the Debts Recovery Tribunal comes in at the behest of the borrower. It is needless to add that under the Recovery of Debts Act, banks/financial institutions could not recover their debts without intervention of the Debts Recovery Tribunal, which the SARFAESI Act has greatly improved upon, the only caveat being that this must be done by the secured creditor following the drill of the SARFAESI Act and rules made thereunder. Shri Dholakia then referred to and relied upon section 3 of the Transfer of Property Act, 1882. Under the said section, \u201ca person is said to have notice\u201d of a fact when he actually knows that fact, or when, but for willful abstention from an inquiry or search which he ought to have made, or gross negligence, he would have known it. Shri Dholakia referred to and relied upon Explanation II to this definition, which reads as under: \u201cExplanation II.\u2014Any person acquiring any immoveable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof.\u201d We fail to understand what relevance Explanation II could possibly have for a completely different statutory setting, namely, that of the SARFAESI Act and the 2002 Rules thereunder. For the purpose of the Transfer of Property Act, a person acquiring immovable property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof. For the purpose of the SARFAESI Act read with the 2002 Rules, the taking of possession by a secured creditor of the secured asset of the borrower would include taking of possession in any of the modes prescribed under rule 8, as has been held by us hereinabove. This argument must also, therefore, be rejected. 20. We now come to some of the decisions of this Court. In Transcore v. Union of India & Anr., (2008) 1 SCC 125, this Court formulated the question which arose before it as follows: \u201c1. A short question of public importance arises for determination, namely, whether withdrawal of OA in terms of the first proviso to Section 19(1) of the DRT Act, 1993 (inserted by amending Act 30 of 2004) is a condition precedent to taking recourse to the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (\u201cthe NPA Act\u201d, for short).\u201d To this, the answer given is in paragraph 69, which is as follows: \u201c69. For the above reasons, we hold that withdrawal of the OA pending before DRT under the DRT Act is not a precondition for taking recourse to the NPA Act. It is for the bank/FI to exercise its discretion as to cases in which it may apply for leave and in cases where they may not apply for leave to withdraw. We do not wish to spell out those circumstances because the said first proviso to Section 19(1) is an enabling provision, which provision may deal with myriad circumstances which we do not wish to spell out herein.\u201d Thereafter, the Court went on to discuss whether recourse to take possession of secured assets of the borrower in terms of section 13(4) of the Act would comprehend the power to take actual possession of immovable property. In the discussion on this point in paragraph 71 of the judgment, learned counsel on behalf of the borrowers made an extreme submission which was that the borrower who is in possession of immovable property cannot be physically dispossessed at the time of issuing the notice under section 13(4) of the Act so as to defeat adjudication of his claim by the Debts Recovery Tribunal under section 17 of the Act and that therefore, physical possession can only be taken after the sale is confirmed in terms of rule 9(9) of the 2002 Rules. This submission was rejected by stating that the word \u201cpossession\u201d is a relative concept and that the dichotomy between symbolic and physical possession does not find place under the Act. Having said this, the Court went on to examine the 2002 Rules and held: \u201c74. \u2026\u2026\u2026 Thus, Rule 8 deals with the stage anterior to the issuance of sale certificate and delivery of possession under Rule 9. Till the time of issuance of sale certificate, the authorised officer is like a Court Receiver under Order 40 Rule 1 CPC. The Court Receiver can take symbolic possession and in appropriate cases where the Court Receiver finds that a third-party interest is likely to be created overnight, he can take actual possession even prior to the decree. The authorised officer under Rule 8 has greater powers than even a Court Receiver as security interest in the property is already created in favour of the banks/FIs. That interest needs to be protected. Therefore, Rule 8 provides that till issuance of the sale certificate under Rule 9, the authorised officer shall take such steps as he deems fit to preserve the secured asset. It is well settled that third-party interests are created overnight and in very many cases those third parties take up the defence of being a bona fide purchaser for value without notice. It is these types of disputes which are sought to be avoided by Rule 8 read with Rule 9 of the 2002 Rules. In the circumstances, the drawing of dichotomy between symbolic and actual possession does not find place in the scheme of the NPA Act read with the 2002 Rules.\u201d If the whole of paragraph 74 is read together with the extracted passage, it becomes clear that what is referred to in the extracted passage is the procedure provided by rule 8(3). It is clear that the authorised officer\u2019s powers, once possession is taken under rule 8(3), include taking of steps for preservation and protection of the secured assets which is referred to in the extracted portion. Thus, the final conclusion by the Bench, though general in nature, is really referable to possession that is taken under rule 8(3) of the 2002 Rules. Whether possession taken under rule 8(1) and 8(2) is called symbolic possession or statutory possession, the fact remains that rule 8(1) and rule 8(2) specifically provide for a particular mode of possession taken under section 13(4)(a) of the Act. This cannot be wished away by an observation made by this Court in a completely different context in order to repel an extreme argument. This Court was only of the opinion that the extreme argument made, as reflected in paragraph 71 of the judgment, would have to be rejected. This judgment therefore does not deal with the problem before us: namely, whether a section 17(1) application is maintainable once possession has been taken in the manner specified under rule 8(1) of the 2002 Rules. 21. Another case strongly relied upon by learned counsel for the respondents is Noble Kumar (supra). This judgment decided that it is not necessary to first resort to the procedure under section 13(4) and, on facing resistance, then approach the Magistrate under section 14. The secured creditor need not avail of any of the remedies under section 13(4), and can approach the Magistrate straightaway after the 60-day period of the notice under section 13(2) is over, under section 14 of the Act. This Court therefore held: \u201c35. Therefore, there is no justification for the conclusion that the Receiver appointed by the Magistrate is also required to follow Rule 8 of the Security Interest (Enforcement) Rules, 2002. The procedure to be followed by the Receiver is otherwise regulated by law. Rule 8 provides for the procedure to be followed by a secured creditor taking possession of the secured asset without the intervention of the court. Such a process was unknown prior to the SARFAESI Act. So, specific provision is made under Rule 8 to ensure transparency in taking such possession. We do not see any conflict between different procedures prescribed by law for taking possession of the secured asset. The finding of the High Court in our view is unsustainable. 36. Thus, there will be three methods for the secured creditor to take possession of the secured assets: 36.1. (i) The first method would be where the secured creditor gives the requisite notice under Rule 8(1) and where he does not meet with any resistance. In that case, the authorised officer will proceed to take steps as stipulated under Rule 8(2) onwards to take possession and thereafter for sale of the secured assets to realise the amounts that are claimed by the secured creditor. 36.2. (ii) The second situation will arise where the secured creditor meets with resistance from the borrower after the notice under Rule 8(1) is given. In that case he will take recourse to the mechanism provided under Section 14 of the Act viz. making application to the Magistrate. The Magistrate will scrutinise the application as provided in Section 14, and then if satisfied, appoint an officer subordinate to him as provided under Section 14(1-A) to take possession of the assets and documents. For that purpose the Magistrate may authorise the officer concerned to use such force as may be necessary. After the possession is taken the assets and documents will be forwarded to the secured creditor. 36.3. (iii) The third situation will be one where the secured creditor approaches the Magistrate concerned directly under Section 14 of the Act. The Magistrate will thereafter scrutinise the application as provided in Section 14, and then if satisfied, authorise a subordinate officer to take possession of the assets and documents and forward them to the secured creditor as under clause 36.2.(ii) above. 36.4. In any of the three situations above, after the possession is handed over to the secured creditor, the subsequent specified provisions of Rule 8 concerning the preservation, valuation and sale of the secured assets, and other subsequent rules from the Security Interest (Enforcement) Rules, 2002, shall apply.\u201d When this Court referred to the first method of taking possession of secured assets in paragraph 36.1.(i), this Court spoke of a case in which, once possession notice is given under rule 8(1), no resistance is met with. That is why, this Court states that steps as stipulated under rule 8(2) onwards to take possession, and thereafter, for sale of the secured assets to realise the amounts that are claimed by the secured creditor would have to be taken, meaning thereby that advertisement must necessarily be given in the newspaper as mentioned in rule 8(2), after which steps for sale may take place. This case again does not deal with the precise problem that is before the Court in this case. The observation made in paragraph 36.1.(i), which is strongly relied upon by the Full Bench of the High Court, to arrive at the conclusion that actual physical possession must first be taken before the remedy under section 17(1) can be availed of by the borrower, does not flow from this decision at all. 22. In Canara Bank v. M. Amarender Reddy & Anr., (2017) 4 SCC 735, this Court after referring to Mathew Varghese v. M. Amritha Kumar and Ors., (2014) 5 SCC 610, which held that the 30-day period mentioned under rule 8(6) is mandatory, then held: \u201c14. The secured creditor, after it decides to proceed with the sale of secured asset consequent to taking over possession (symbolic or physical as the case may be), is no doubt required to give a notice of 30 days for sale of the immovable asset as per sub-rule (6) of Rule 8. However, there is nothing in the Rules, either express or implied, to take the view that a public notice under sub-rule (6) of Rule 8 must be issued only after the expiry of 30 days from issuance of individual notice by the authorised officer to the borrower about the intention to sell the immovable secured asset. In other words, it is permissible to simultaneously issue notice to the borrower about the intention to sell the secured assets and also to issue a public notice for sale of such secured asset by inviting tenders from the public or by holding public auction. The only restriction is to give thirty days\u2019 time gap between such notice and the date of sale of the immovable secured asset.\u201d Though there was no focused argument on the controversy before us, this Court did recognise that possession may be taken over under rule 8 either symbolically or physically, making it clear that two separate modes for taking possession are provided for under rule 8. 23. Similarly, in ITC Limited v. Blue Coast Hotels Ltd. and Ors., AIR 2018 SC 3063, this Court held: \u201c45. As noticed earlier, the creditor took over symbolic possession of the property on 20.06.2013. Thereupon, it transferred the property to the sole bidder ITC and issued a sale certificate for Rs. 515,44,01,000/- on 25.02.2015. On the same day, i.e., 25.02.2015, the creditor applied for taking physical possession of the secured assets under Section 14 of the Act. 46. According to the debtor, since Section 14 provides that an application for taking possession may be made by a secured creditor, and the creditor having ceased to be a secured creditor after the confirmation of sale in favour of the auction purchaser, was not entitled to maintain the application. Consequently, therefore, the order of the District Magistrate directing delivery of possession is a void order. This submission found favour with the High Court that held that the creditor having transferred the secured assets to the auction purchaser ceased to be a secured creditor and could not apply for possession. The High Court held that the Act does not contemplate taking over of symbolic possession and therefore the creditor could not have transferred the secured assets to the auction purchaser. In any case, since ITC Ltd. was the purchaser of such property, it could only take recourse to the ordinary law for recovering physical possession. 47. We find nothing in the provisions of the Act that renders taking over of symbolic possession illegal. This is a well-known device in law. In fact, this court has, although in a different context, held in M.V.S. Manikayala Rao v. M. Narasimhaswami [AIR 1966 SC 470] that the delivery of symbolic possession amounted to an interruption of adverse possession of a party and the period of limitation for the application of Article 144 of the Limitation Act would start from such date of the delivery.\u201d 24. This judgment also speaks of the taking over of symbolic possession under the SARFAESI Act. The judgment then goes on to discuss whether a creditor could maintain an application for possession under section 14 of the Act once it takes over symbolic possession before the sale of the property to the auction purchaser. The Court referred to various authorities and arrived at the conclusion that a secured creditor remains a secured creditor when only constructive or symbolic possession is given, as the entire interest in the property not having been passed on to the secured creditor in the first place, the secured creditor in turn could not pass on the entire interest in the property to the auction purchaser. In this behalf, it is important to refer to section 8 of the Transfer of Property Act, 1882 which states as follows: \u201c8. Operation of transfer.\u2014 Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof. xxx xxx xxx\u201d Section 13(6) of the SARFAESI Act makes it clear that a different intention is so expressed by the Act, as any transfer of a secured asset after taking possession thereof, shall vest in the transferee all rights in the secured asset so transferred as if the transfer had been made by the owner of such secured asset. It is clear, therefore, that statutorily, under section 13(6), though only the lesser right of taking possession, constructive or physical, has taken place, yet the secured creditor may, by lease, sale or assignment, vest in the lessee or purchaser all rights in the secured asset as if the transfer had been made by the original owner of such secured asset. This aspect of the matter does not appear to have been noticed in the aforesaid judgment. The ultimate conclusion in the said judgment is, however, correct as a secured creditor remains a secured creditor even after possession is taken over as the fiction contained in section 13(6) does not convert the secured creditor into the owner of the asset, but merely vests complete title in the transferee of the asset once transfer takes place in accordance with rules 8 and 9 of the 2002 Rules. 25. We may also add that by a notification dated 17.10.2018, rule 8 has since been amended adding two sub-rules as follows: \u201c3. In the said rules, in rule 8\u2014 (i) in sub-rule (6), for the proviso, the following proviso shall be substituted, namely:- \u201cProvided that if the sale of such secured asset is being effected by either inviting tenders from the public or by holding public auction, the secured creditor shall cause a public notice in the Form given in Appendix IV-A to be published in two leading newspapers including one in vernacular language having wide circulation in the locality.\u201d; (ii) for sub-rule (7), the following sub-rule shall be substituted, namely:\u2013 \u201c(7) every notice of sale shall be affixed on the conspicuous part of the immovable property and the authorised officer shall upload the detailed terms and conditions of the sale, on the web- site of the secured creditor, which shall include; (a) the description of the immovable property to be sold, including the details of the encumbrances known to the secured creditor; (b) the secured debt for recovery of which the property is to be sold; (c) reserve price of the immovable secured assets below which the property may not be sold; (d) time and place of public auction or the time after which sale by any other mode shall be completed; (e) deposit of earnest money as may be stipulated by the secured creditor; (f) any other terms and conditions, which the authorized officer considers it necessary for a purchaser to know the nature and value of the property.\u201d; Appendix IV-A which is now inserted by the said notification reads as follows: \u201cAPPENDIX - IV-A [See proviso to rule 8 (6)] Sale notice for sale of immovable properties E-Auction Sale Notice for Sale of Immovable Assets under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 read with proviso to Rule 8 (6) of the Security Interest (Enforcement) Rules, 2002 Notice is hereby given to the public in general and in particular to the Borrower (s) and Guarantor (s) that the below described immovable property mortgaged/charged to the Secured Creditor, the constructive/physical ______________ (whichever is applicable) possession of which has been taken by the Authorised Officer of ______________ Secured Creditor, will be sold on \u201cAs is where is\u201d, \u201cAs is what is\u201d, and \u201cWhatever there is\u201d on ______________ (mention date of the sale), for recovery of Rs. due to the ______________ Secured Creditor from (mention name of the Borrower (s)) and ______________ (mention name of the Guarantor (s)). The reserve price will be Rs. ______________ and the earnest money deposit will be Rs. ______________ (Give short description of the immovable property with known encumbrances, if any) For detailed terms and conditions of the sale, please refer to the link provided in ______________ Secured Creditor\u2019s website i.e. www. (give details of website) Date: Authorised Officer Place:\u201d This appendix makes it clear that statutorily, constructive or physical possession may have been taken, pursuant to which a sale notice may then be issued under rule 8(6) of the 2002 Rules. Appendix IV-A, therefore, throws considerable light on the controversy before us and recognises the fact that rule 8(1) and 8(2) refer to constructive possession whereas rule 8(3) refers to physical possession. We are therefore of the view that the Full Bench judgment is erroneous and is set aside. The appeals are accordingly allowed, and it is hereby declared that the borrower/debtor can approach the Debts Recovery Tribunal under section 17 of the Act at the stage of the possession notice referred to in rule 8(1) and 8(2) of the 2002 Rules. The appeals are to be sent back to the Court/Tribunal dealing with the facts of each case to apply this judgment and thereafter decide each case in accordance with the law laid down by this judgment. \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026..J. (R.F. Nariman) \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026..J. (Navin Sinha) New Delhi; November 1, 2018."
    }
}