STATE OF ORISSA
v.
CHOUDHURI NAYAK (DEAD BY LR) & ORS.
(Civil Appeal No. 6818 of 2010)
AUGUST 20, 2010
A
A
B
B
[R.V. RAVEENDRAN AND H.L. GOKHALE, JJ.]
Freedom Fighters Pension Scheme, 1972 – Pension
under – Granted to first respondent – Cancelled by Central
Government on the basis that first respondent secured the C
same on the basis of false and fabricated documents –
Justification of – Held: Justified – Grant of freedom fighters’
pension to bogus claimants producing false and fabricated
documents is as bad as genuine freedom fighters being
denied pension – The Government should weed out false and D
fabricated claims and cancel the grant when the bogus nature
of the claim comes to light.
The first respondent filed an application for grant of
freedom fighters’ pension under the Freedom Fighters
Pension Scheme, 1972 on the basis that in 1943 he had
been convicted by the Sub-Divisional Officer (SDO) under
Rule 38(5) of the Defence of India Rules (DIR) and
sentenced to seven months simple imprisonment. As
proof of the imprisonment, the first respondent produced
a certified extract of the entries made in the challan
register of 1943 in the office of SDO. The first respondent
was, accordingly, sanctioned freedom fighters pension
by the State Government and the Central Government.
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616
[2010] 10 S.C.R. 615
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[2010] 10 S.C.R.
showed that the name of the first respondent had been
fraudulently inserted among names of the accused who
were convicted and sentenced in a criminal case. It was
further contended that the first respondent had
concealed his date of birth while applying for and
securing the pension.
In view of the said allegations, the Central
Government cancelled the grant of pension to the first
respondent on the basis that he had secured it by
fabricating documents. The first respondent challenged
the said cancellation by filing a writ petition, which was
allowed by the High Court.
Allowing the appeals, the Court
D
E
E
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F
Subsequently, a Public Interest Litigation was filed G
before the High Court alleging that the first respondent
had secured Freedom Fighters Pension by producing
false and fabricated documents and that an inspection of
the challan register of 1943 in the office of the SDO
615
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G
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HELD:1. This Court in order to ensure that no
genuine Freedom Fighter is denied pension under the
Freedom Fighters Pension scheme, has, in various
judgments, spelt out the principles, which are
summarized as under:
(i)
The object of the scheme was to honour, and
where necessary, to mitigate the sufferings of
those who had struggled to achieve
independence for the country. Many freedom
fighters, even though they did not have
sufficient income to maintain themselves,
would even be reluctant to receive the Pension
under the Scheme, as they would consider it
as putting a price on their patriotism. The spirit
of the Scheme being both to assist and
honour the freedom fighters and acknowledge
the valuable sacrifices made by them, the
authorities should treat the applicants with
respect and courtesy. The scheme should not
be converted into some kind of routine
scheme for payment of compensation.
STATE OF ORISSA v. CHOUDHURI NAYAK (DEAD
BY LR) & ORS.
(ii)
(iii)
(iv)
617
The persons intended to be covered by the
Scheme are those who sacrificed and suffered
for achieving the independence of the country,
without expecting any reward for their
sacrifice and sufferings. Therefore they can
not be expected to maintain and produce
perfect records or documents about their
participation in the freedom struggle.
Once the country has decided to honour
freedom fighters by granting a pension, the
approach of the authorities implementing the
scheme should not be obstructionist or
technical while examining the applications and
documents produced, but be practical having
regard to the fact that most of the applications
are by old persons with no proper records.
The criterion for pension under the scheme is
not age, but participation in freedom struggle.
The freedom fighters pension can, therefore,
in exceptional cases, be granted even to those
who were minors at the time of struggle, if
evidence clearly showed that they had
participated in the freedom struggle and
fulfilled the requirements of the scheme. [Para
8] [625-C-H; 626-A-D]
Mukund Lal Bhandari v. Union of India 1993 Supp. (3)
SCC 2; Gurdial Singh v. Union of India 2001 (8) SCC 8 and
State of M.P. v. Devkinandan Maheshwari 2003 (3) SCC 183
– relied on.
2. False claimants walking away with the benefits
meant for genuine and deserving candidates has
become the bane of several welfare schemes. Any
complacency on the part of the Government in taking
action against bogus claims under any scheme would
618
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B
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SUPREME COURT REPORTS
[2010] 10 S.C.R.
A encourage bogus claims under all schemes, by
undeserving candidates who are ‘well connected and
influential’. When false claims come to the notice of the
Central Government, it is bound to take stern action.
Grant of freedom fighters’ pension to bogus claimants
B producing false and fabricated documents is as bad as
genuine freedom fighters being denied pension. The only
way to respect the sacrifices of freedom fighters is to
ensure that only genuine freedom fighters get the
pension. This means that the Government should weed
C out false and fabricated claims and cancel the grant when
the bogus nature of the claim comes to light. [Paras 7, 9]
[625-A-B; 626-F]
Union of India v. Avtar Singh 2006 (6) SCC 493 – relied
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D
on.
3.1. In the instant case, the first ground mentioned by
the Central Government, which is not in serious dispute,
is that the name of the first respondent (‘Choudhuri’) in
the Entries relating to the Challan Register of 1943 is a
E subsequent addition in a different handwriting and
different ink which indicated that first respondent did not
really undergo imprisonment as claimed. The only
explanation given by first respondent is that he did not
make the said correction. When the background in which
F the document was produced and how it contradicted the
claim of first respondents is considered, the bogus nature
of the claim becomes evident. Alongwith his application
for pension submitted in 1978, the first respondent had
produced only one document, that is, a typed copy of the
G alleged certificate issued by the Superintendent, Balasore
Jail dated 12.3.1974 which stated that he was convicted
and sentenced to seven months’ simple imprisonment by
P.G. Mohanty, SDO, Bhadrak under Rule 38(5) of DIR and
he was confined in Balasore Jail between 19.3.1943 to
10.10.1943. But the said certificate did not bear any
H
STATE OF ORISSA v. CHOUDHURI NAYAK (DEAD
BY LR) & ORS.
619
signature and was not corroborated by any other
document. Therefore, the first respondent was required
to produce other material to support his claim. It is at that
stage the first respondent produced a certified copy of
an extract from the Challan Register (obtained by him on
31.12.1981). A detailed examination of the records of SDO
showed that the names of ‘Choudhari’ and ‘Banabehari’
were inserted among the names of persons shown as
convicted in that case, in a different ink and in a different
handwriting. Further, the said entry showed that the
persons convicted were sentenced to one year RI under
section 147 IPC, two years RI under section 152 read with
s.149 of IPC and two years RI under Rule 38 of DIR. This
is at complete variance with first respondent’s claim
(which he sought to support by the typed Jail Certificate
dated 12.3.1974) that he had been given a sentence of
seven months simple imprisonment. Thus, the unsigned
typed copy of jail certificate and the particulars given by
the first respondent in his application are proved to be
false by the contents of the certified copy of the Challan
Register produced by him. Evidently, the first respondent
was not one of the persons convicted or sentenced or
imprisoned in that case. [Para 10] [627-B-H; 628-A-E]
3.2. The second ground for cancellation is the false
claim of age. The application showed that his age was 22
years when he was sentenced and imprisoned. But his
school records showed that he was born on 23.9.1926
and was, therefore, 16 years old in 1943. The service
record of the first respondent, on the other hand, showed
his date of birth as 13.9.1928 (which first respondent
accepted as the correct date of birth) which meant that
he was 14 years old in 1943 when he claims to have been
convicted and sentenced. The order of cancellation of
pension stated that if he was 14 years, he would have
been kept in Borstal/Juvenile home and not imprisoned
in jail and that showed that the claim of first respondent
620
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C
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[2010] 10 S.C.R.
A that he was imprisoned in a Jail was highly improbable.
The first respondent made a deliberate false claim about
his age to secure the pension. [Para 11] [628-F-H; 629-AC]
3.3. The undisputed facts leave no doubt that the
B claim of the first respondent was based on false and
fabricated documents. Therefore, the cancellation of the
pension was justified and cannot be found fault with.
[Para 12] [629-D-E]
3.4. The High Court ignored the reasons for the
cancellation, merely because the State government did
not discover the false claim when first respondent made
the application and the first respondent had produced
before the High Court for the first time, some certificates
D from alleged co-prisoners. The High Court could not
have ignored the production of false and fabricated
documents which would automatically disentitle the
applicant to any benefit under the scheme. The order of
the High Court is set aside and the order of the Central
E Government cancelling the pension is affirmed. However,
having regard to the fact that the first respondent has
died in the year 2004, there shall be no recovery of any
amount already paid to the deceased first respondent
from his widow or other legal heirs. [Paras 13, 14] [629H; 630-A-C]
F
Case Law Reference:
C
G
1993 Supp. (3) SCC 2 relied on
Para 8
2001 (8) SCC 8
relied on
Para 8
2003 (3) SCC 183
relied on
Para 8
2006 (6) SCC 493
relied on
Para 9
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
H 6818 of 2010.
STATE OF ORISSA v. CHOUDHURI NAYAK (DEAD 621
BY LR) & ORS.
622
From the Judgment & Order dated 14.10.2003 of the High A
Court of Orrisa, Cuttack, in O.J.C. No. 11859 of 2001.
A
With
C.A. No. 6819 of 2010.
B
B
C
C
Mohan Jain, ASG. Kirti Renu Mishra, D.K. Thakur, Deepak
Jain, Yogita Yadav, S.N. Terdal, P. Parmeswaran, Sushma Suri,
K. Sarada Devi, Debasis Misra, for the appearing parties.
The Judgment of the Court was delivered by
R.V. RAVEENDRAN, J. 1. Leave granted.
2. Choudhuri Nayak, first respondent in these appeals (who
died during the pendency of the special leave petitions leaving
his widow as his legal representative) filed an application on D
18.9.1978 claiming pension under the Freedom Fighters
Pension Scheme, 1972 (‘scheme’ for short). In his application,
he claimed that he was convicted by the Sub-Divisional Officer,
Bhadrak, under Rule 38(5) of the Defence of India Rules (‘DIR’
for short) and sentenced to seven months’ simple imprisonment. E
He further stated that in pursuance of such conviction and
sentence, he was taken into custody and suffered imprisonment
from 19.3.1943 to 10.10.1943 in Balasore jail. The said
application for freedom fighter’s pension was accompanied by
a typed unsigned copy of a certificate dated 12.3.1974 said to F
have been issued by the Superintendent, Balasore District Jail,
certifying that the first respondent was convicted and sentenced
to seven months simple imprisonment by Sri. P.C.Mohanty,
Sub-Divisional Officer, Bhadrak under Rule 38(5) of DIR on
10.3.1943 and he was confined in the said jail from 19.3.1943
G
till 10.10.1943. Therefore first respondent was asked to produce
some acceptable proof of imprisonment. In the year 1982, he
produced a certified copy of the Entries made on 12.10.1943
in the criminal case register (Sl.No. 278 of Challan Register)
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SUPREME COURT REPORTS
[2010] 10 S.C.R.
being brief summary of the case decided by Sri. P.C. Mohanty,
SDO in case No. G.327of 1942. The said certified copy was
obtained by the first respondent from the Record Section of
SDO’s office on 30.12.1981. The said certified copy showed
that Sri P.C. Mohanty, SDO, Bhadrak had made a final order
in case titled Emperor v. Salar and 32 Others, in regard to
offences punishable under sections 147, 35 to 38 IPC and
Rule 38(5) of DIR. The name ‘Choudhari’ also figured in the
names of accused who were convicted and sentenced in that
case.
3. The State Government accepted the said certified
extract of Challan Register as proof of first respondent having
undergone imprisonment for more than six months and
processed his application and recommended his case for
pension. The first respondent was sanctioned Freedom
Fighters Pension with effect from 1.8.1980 by the Central
Government and with effect from 1.1.1984 by the State
Government. The first respondent was being paid pension in
terms of the scheme ever since then.
4. A public interest litigation (OJC No. 15977/1997) was
filed by one S.Sanyasi Charan Das before the Orissa High
Court alleging that the first respondent was drawing freedom
fighter’s pension by producing false and fabricated documents
and that an inspection of the Challan Register in the office of
SDO, Bhadrak would show that the name of the first respondent
had been fraudulently inserted among the names of accused
who were convicted and sentenced in the criminal case (with
respect to which the first respondent had produced the certified
copy). It was also stated that the first respondent was hardly
fourteen years old in 1943 and he had concealed his date of
birth (13.9.1928) while applying for and securing the pension
and had falsely shown his age as 56 years in his application
dated 18.9.1978 (which would make him 21 years old in 1943).
In view of these allegations, the State Government conducted
an inquiry through the Superintendent of Police, Bhadrak. The
STATE OF ORISSA v. CHOUDHURI NAYAK (DEAD
BY LR) & ORS. [R.V. RAVEENDRAN, J.]
623
said inquiry disclosed that in the Entries in the Challan Register
(at Sl.No. 278), the name of first respondent and another
(“Choudhari” and “Banabehari”) had been inserted among the
names of persons convicted and sentenced, shown under the
column “final order passed with details of sentence and date
of decision” and that such insertion was clearly visible even on
a casual inspection as the two names were in a different
handwriting and different ink and impression. The enquiries
also revealed that the date of birth of first respondent was
shown as 23.9.1926 in the school records and was recorded
as 13.9.1928 in his service record.
5. The State Government therefore issued a show cause
notice dated 14.12.2000 to the first respondent asking him to
show cause why the grant of pension should not be cancelled
in view of pension being secured by fabricating documents.
On the basis of the information furnished by the State
Government, the Central Government also issued a similar
show cause notice dated 19.7.2001 to the first respondent.
The first respondent sent a reply denying knowledge of any
addition or alteration in the entries relating to Sl.No.278 in the
Challan Register. He however admitted that his date of birth
was 13.9.1928 as entered in the Service Record but did not
explain why he had shown a wrong age in the application for
pension. After considering the explanation given, the Central
Government, by order dated 14.8.2001 cancelled the freedom
fighters pension granted to first respondent. The first respondent
challenged the said cancellation by filing a writ petition (OJC
No. 11859/2001) before the Orissa High Court. The High Court
by the impugned order dated 14.10.2003 allowed the writ
petition on the ground that there was no justification for the
cancellation, as the State Government had recommended the
case of first respondent only after verification of the application
and records. The High Court also referred to some certificates
produced by the first respondent, alongwith the writ petition,
allegedly issued by his co-prisoners about his imprisonment.
The said order is challenged in these appeals by special leave
624
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SUPREME COURT REPORTS
[2010] 10 S.C.R.
A by the State Government and the Central Government.
6. The Government of India cancelled the pension, by a
detailed reasoned order dated 14.8.2001 after issuing a show
cause notice and after considering the explanation given by
the first respondent. It gave the following two reasons for the
B
cancellation:
C
(i) In the Challan Register, the name of the first
respondent (Choudhuri) had been fraudulently inserted among
the names of accused who were convicted and sentenced in
C a criminal case, in a different handwriting and in a different
ink. This showed that first respondent was not really an accused
in that case, nor was he convicted or sentenced or undergone
any imprisonment.
D
D
E
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G
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(ii) The school records showed his date of birth as
23.9.1926. His service record showed his date of birth as
13.9.1928 (which was accepted to be the correct date of birth).
If so, his age at the time of alleged conviction was only 14
years. But in his application for pension given on 18.9.1978
he had clearly shown his age as 56 years, that is, 21 years in
E
1943.
F
The question for consideration is whether in the circumstances
the central government was justified in cancelling the pension;
and whether the High Court was justified in setting aside the
said order.
7. It is of some interest to note from the statistics furnished
by the Central government in their additional affidavit, that
1,70,813 freedom fighters/dependants have been sanctioned
G freedom fighters pension (as on 31.5.2010). At present as
many as 60000 persons are getting pension or family pension
as freedom fighters/dependants. The average pension of a
freedom fighter and after his/her death to the spouse is
Rs.12400/- p.m. and the average pension paid to a dependant
unmarried daughter is Rs.3000 per month. The expenditure
H
STATE OF ORISSA v. CHOUDHURI NAYAK (DEAD 625
BY LR) & ORS. [R.V. RAVEENDRAN, J.]
626
for the year 2009-10 under the scheme was Rs.785 crores. A
We have referred to these figures only to show that when false
claims come to the notice of the Central Government, it is
bound to take stern action. Any complacency on the part of the
Government in taking action against bogus claims under any
scheme would encourage bogus claims under all schemes, by B
undeserving candidates who are ‘well connected and
influential’. False claimants walking away with the benefits
meant for genuine and deserving candidates has become the
bane of several welfare schemes.
A
8. This Court in Mukund Lal Bhandari v. Union of India C
[1993 Supp. (3) SCC 2], Gurdial Singh v. Union of India
[2001 (8) SCC 8] and State of M.P. v. Devkinandan
Maheshwari [2003 (3) SCC 183] considered the object of the
Freedom Fighters Pension scheme and indicated what should
be the approach of the authorities in dealing with the D
applications for pension under the scheme. We may
summarize them as under:
C
(i) The object of the scheme was to honour, and where
necessary, to mitigate the sufferings of those who had E
struggled to achieve independence for the country. Many
freedom fighters, even though they did not have sufficient
income to maintain themselves, would even be reluctant
to receive the Pension under the Scheme, as they would
consider it as putting a price on their patriotism. The spirit F
of the Scheme being both to assist and honour the
freedom fighters and acknowledge the valuable sacrifices
made by them, the authorities should treat the applicants
with respect and courtesy. The scheme should not be
converted into some kind of routine scheme for payment
G
of compensation.
(ii) The persons intended to be covered by the Scheme
are those who sacrificed and suffered for achieving the
independence of the country, without expecting any reward
for their sacrifice and sufferings. Therefore they can not be
H
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E
F
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SUPREME COURT REPORTS
[2010] 10 S.C.R.
expected to maintain and produce perfect records or
documents about their participation in the freedom
struggle.
(iii) Once the country has decided to honour freedom
fighters by granting a pension, the approach of the
authorities implementing the scheme should not be
obstructionist or technical while examining the applications
and documents produced, but be practical having regard
to the fact that most of the applications are by old persons
with no proper records.
(iv) The criterion for pension under the scheme is not age,
but participation in freedom struggle. The freedom fighters
pension can, therefore, in exceptional cases, be granted
even to those who were minors at the time of struggle, if
evidence clearly showed that they had participated in the
freedom struggle and fulfilled the requirements of the
scheme.
The above principles were spelt out to ensure that no genuine
freedom fighter was denied pension under the scheme.
9. Grant of freedom fighters’ pension to bogus claimants
producing false and fabricated documents is as bad as genuine
freedom fighters being denied pension. The only way to respect
the sacrifices of freedom fighters is to ensure that only genuine
freedom fighters get the pension. This means that the
Government should weed out false and fabricated claims and
cancel the grant when the bogus nature of the claim comes to
light. In Union of India v. Avtar Singh [2006 (6) SCC 493] this
Court therefore cautioned:
“The genuine freedom fighters derserve to be treated with
reverence, respect and honour. But at the same time it
cannot be lost sight of that people who had no role to play
in the freedom struggle should not be permitted to benefit
from the liberal approach required to be adopted in the
STATE OF ORISSA v. CHOUDHURI NAYAK (DEAD
BY LR) & ORS. [R.V. RAVEENDRAN, J.]
627
case of the freedom fighters, most of whom in the normal
course are septuagenarians and octogenarians.”
628
A
A
B
B
C
C
D
D
E
E
We will have to examine allegations of fabrication of the claim
in this case, keeping the aforesaid principles in view.
10. The first ground mentioned by the Central Government
is that the name ‘Choudhuri’ in the Entries relating to Sl.No.
278 of the Challan Register of 1943 is a subsequent addition
in a different handwriting and different ink which indicated that
first respondent did not really undergo imprisonment as
claimed. The fact that the name Choudhuri is in a different ink
and different handwriting is not in serious dispute. The only
explanation given by first respondent is that he did not make
the said correction. When the background in which the document
was produced and how it contradicted the claim of first
respondents is considered, the bogus nature of the claim
becomes evident. Alongwith his application for pension
submitted in 1978, the first respondent had produced only one
document, that is, a typed copy of the alleged certificate issued
by the Superintendent, Balasore Jail dated 12.3.1974 which
stated that he was convicted and sentenced to seven months’
simple imprisonment by P.G. Mohanty, SDO, Bhadrak under
Rule 38(5) of DIR and he was confined in Balasore Jail between
19.3.1943 to 10.10.1943. This, of course supported the claim
of the first respondent in his application about his conviction
and period of imprisonment. But the said certificate did not
bear any signature and was not corroborated by any other
document. Therefore first respondent was required to produce
other material to support his claim. It is at that stage the first
respondent produced a certified copy of an extract from the
Challan Register (obtained by him on 31.12.1981). This
certified copy of the sheet relating at Sl.No. 278 of Challan
Register for 1943 issued by the District Record Room showed
that one Salar and 32 others were convicted by P.C. Mohanty,
SDM, Bhadrak in case under ‘Section 147 and 35 to 38 IPC
and 38(5) of DIR’. The names of accused enumerated therein
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SUPREME COURT REPORTS
[2010] 10 S.C.R.
included ‘Choudhari’. But a detailed examination of the records
of SDM, Bhadrak showed that the names ‘Choudhari’ and
‘Banabehari’ were inserted among the names of persons
shown as convicted in that case, in a different ink and in a
different handwriting. Further the said entry showed that the
persons convicted were sentenced to one year RI under
section 147 IPC, two years RI under section 152 read with
149 of IPC and two years RI under Rule 38 of DIR. This is at
complete variance with first respondent’s claim (which he
sought to support by the typed Jail Certificate dated 12.3.1974)
that he had been given a sentence of seven months simple
imprisonment. Thus the unsigned typed copy of jail certificate
and the particulars given by the first respondent in his
application are proved to be false by the contents of the
certified copy of the Challan Register produced by him which
showed that the persons convicted were sentenced to one
year, two years and two years of rigorous imprisonment to run
concurrently and not seven months simple imprisonment
claimed by first respondent. Evidently, the first respondent was
not one of the persons convicted or sentenced or imprisoned
in that case.
11. The second ground for cancellation is the false claim
of age. The application showed that his age was 22 years
when he was sentenced and imprisoned. But his school
records showed that he was born on 23.9.1926 and was
F therefore 16 years old in 1943. The service record of the first
respondent on the other hand showed his date of birth is
13.9.1928 (which first respondent accepted as the correct date
of birth) which meant that he was 14 years old in 1943 when
he claims to have been convicted and sentenced. The order
G of cancellation of pension stated that if he was 14 years, he
would have been kept in Borstal/Juvenile home and not
imprisoned in jail and that showed that the claim of first
respondent that he was imprisoned in a Jail was highly
improbable. The learned counsel for first respondent attempted
H to contend that several youngsters aged around 14 years or
STATE OF ORISSA v. CHOUDHURI NAYAK (DEAD
BY LR) & ORS. [R.V. RAVEENDRAN, J.]
629
even less, had participated in the freedom struggle and if British
Rulers had wrongly sent them to jail instead of treating them
as juveniles, the youngster could not be blamed. But the issue
is not whether a youngster aged 14 years could be a freedom
fighter or could be sent to jail. The issue is that the first
respondent had given the application for pension showing his
age as 56 years which made him 21 years old when he
allegedly underwent imprisonment in 1943 whereas
subsequently he admitted that he was born on 13.9.1928 which
means that he was hardly 14 years in 1943. This shows that
the first respondent made a deliberate false claim about his
age to secure the pension. Obviously he thought that if he
disclosed his true age, there would be objections or a detailed
examination and he might not get the pension.
12. The undisputed facts leave no doubt that the claim of
the first respondent was based on false and fabricated
documents. He was a teacher/Headmaster of a school when
he made the claim and clearly knew that he was making a
false claim. Therefore the cancellation of the pension was
justified and cannot be found fault with. The scheme was
introduced with the noble intention of honouring those who
fought for the freedom of the country. As noticed by this Court
in Mukund Lal Bhandari, many freedom fighters even refused
to receive such pension as they felt that it would amount to
putting a premium on their patriotism. There are also several
unscrupulous persons who made false claims and received
the benefits. The Government shall not allow such false
claimants to mock at the genuine freedom fighters. What is
rather disturbing is the fact that many false claimants have
taken advantage of the observations of this Court that the
authorities processing the applications should not be very rigid
or technical in scrutinizing the applications for freedom fighter’s
pension.
13. The High Court ignored the relevant principles. It
ignored the reasons for the cancellation, merely because the
630
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B
C
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[2010] 10 S.C.R.
A state government did not discover the false claim when first
respondent made the application and the first respondent had
produced before the High Court for the first time, some
certificates from alleged co-prisoners. The High Court could
not have ignored the production of false and fabricated
B documents which would automatically disentitle the applicant
to any benefit under the scheme.
14. In view of the above we allow these appeals, set
aside the order of the High Court and affirm the order of the
Central Government cancelling the pension. Having regard to
C
the fact that the first respondent has died in the year 2004, it
is made clear that there shall be no recovery of any amount
already paid to the deceased first respondent from his widow
or other legal heirs.
B.B.B
Appeals allowed.
632
[2010] 10 S.C.R. 631
BIMAN BASU
v.
KALLOL GUHA THAKURTA & ANR.
(Criminal Appeal No. 607 of 2005)
AUGUST 25, 2010
A
A
B
B
[B.SUDERSHAN REDDY AND SURINDER SINGH
NIJJAR, JJ.]
Contempt of Courts Act, 1971 – ss. 2(c) and 15 – Criminal
contempt – Procedure for taking cognizance – Contempt C
petition filed by private person without the written consent of
the Advocate-General – Held: Is not maintainable – Calcutta
High Court Contempt of Court Rules, 1975.
Interpretation of Statutes – Schedules, Forms and D
Appendix – Held: They form part of the statutes/rules.
The respondents filed a contempt petition in the
Calcutta High Court under Section 15 of the Contempt of
Courts Act, 1971, seeking initiation of appropriate
contempt proceedings against the appellant for making E
deliberate and willful derogatory, defamatory and filthy
statements against a sitting Judge of the High Court.
They, accordingly, prayed for initiation of contempt
proceedings against the appellant under Sections 2(a),
2(b), 2(c) and 2(d) of the Act. The appellant challenged the F
maintainability of the contempt petition on the ground
that the motion was moved without the written consent
of the Advocate General. The High Court, however, held
that the contempt petition was maintainable as suo-motu
action was taken by the Court to initiate contempt G
proceedings, and convicted the appellant for committing
criminal contempt as defined in Section 2(c) of the Act
and sentenced him, to undergo simple imprisonment for
a period of three days and to pay a fine of Rs.10,000/-.
631
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[2010] 10 S.C.R.
The question for consideration in the instant appeal
was whether the Contempt Petition filed by the
respondents was not maintainable as the consent of the
Advocate General had not been obtained.
Allowing the appeal, the Court
HELD:1.1. The instant case relates to criminal
contempt as defined in s.2(c) of the Contempt of Courts
Act, 1971. Section 15 of the Act, inter alia, provides that
the action for contempt may be taken by the Supreme
Court or the High Court on its own motion or on a motion
made by (a) the Advocate-General or (b) any other person
with the consent in writing of the Advocate General. The
petition to take action against the appellant under Section
15 of the Act, without the written consent of the Advocate
General was not maintainable in law. It is evident from the
record, the respondents were continued to be shown as
the petitioners in the contempt case before the High
Court and they participated throughout as if they were
prosecuting the appellant. There is no order reflecting
that the High Court having taken note of the information
made before it, initiated suo motu proceedings on the
basis of such information furnished and required the
respondents only to assist the Court till the disposal of
the matter. On the contrary, respondents are shown as
the petitioners in the contempt case before the High
Court. It is thus clear, it is the respondents who initiated
the proceedings and continued the same but without the
written consent of the Advocate General as is required
in law. The proceedings, therefore, were clearly not
maintainable. [Paras 20, 25] [650-C; 647-D-F]
1.2. In exercise of the powers conferred by Section
23 of the Contempt of Courts Act, 1971 and by Article 215
of the Constitution and other enabling powers in that
H
BIMAN BASU v. KALLOL GUHA THAKURTA & ANR. 633
behalf, the High Court made the Calcutta High Court A
Contempt of Court Rules, 1975. The Rules, inter alia,
provide that proceedings in a criminal contempt may be
initiated (a) on its own motion by the High Court under
Section 15(1) of the Act; or (b) on a motion founded on a
petition presented by the Advocate General under Section B
15(1)(a) of the Act; or (c) on a motion founded on a
petition presented by any other person with the consent
in writing of the Advocate General under Section 15(1)(b)
of the Act. Rule 19 of the rules enables the Court either
to issue Rule Nisi or summarily reject the petition or make C
such order thereupon as thought fit and the Rule Nisi shall
be drawn up as far as may be in the model form in Form
No.1, Appendix I. Rule 20 provides that where the Rule
is issued by the Court on its own motion or on a motion
made by the Advocate General under Section 15, the Rule
D
Nisi shall be drawn up, as far as may be in the model Form
No. 2, Appendix I. It is fairly well settled that Schedules,
Forms and Appendix form part of the statutes and or the
rules as the case may be. [Para 23] [648-G-H; 649-A-B; DF]
E
1.3. In the present case, Rule Nisi has been issued
under the orders of the High Court in Form No. 1 and not
in Form No.2. Had it been a proceeding initiated by the
High Court on its own motion, the Rule Nisi would have
been issued in the model Form No.2, Apendix I. It is clearly F
evident from the record that the High Court did not set
the law in motion on its own accord. Petitioner No.1
before the High Court, i.e. respondent no.1, is a practicing
advocate and argued his case in person. So far as
petitioner No.2 is concerned, i.e. respondent no.1 herein, G
he was represented by more than one lawyer. In the
contempt petition there was no prayer for taking suo motu
action against the appellants. The proceedings before the
High Court were initiated by the respondents by filing
contempt petition under Section 15. The petition was H
634
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vigorously pursued and argued as a private petition.
Even in this Court, the respondents entered their
appearance through their counsel who did not turn up
but elaborate written submissions were submitted by
respondent no.1. From the material available on record
including the impugned judgment passed by the High
Court, it is impossible to accept the view taken by the
High Court that it had taken suo motu action. [Para 24]
[649-F-H; 650-A-C]
S.K. Sarkar, Member, Board of Revenue U.P. v. Vinay
Chandra Misra (1981) 1 SCC 436; State of Kerala v. M.S.
Mani (2001) 8 SCC 82; P.N. Duda v. P. Shiv Shankar (1988)
3 SCC 167; Bal Thackrey v. Harish Pimpalkhute (2005) 1
SCC 254; L.P. Misra (Dr.) v. State of U.P. (1998) 7 SCC 379;
Pallav Sheth v. Custodian (2001) 7 SCC 549; C.K. Daphtary
v. O.P. Gupta (1971) 1 SCC 626; D.N. Taneja v. Bhajan Lal
(1988) 3 SCC 26; State of Maharashtra v. Mahboob S.
Allibhoy & Anr. (1996) 4 SCC 411; Om Prakash Jaiswal v.
D.K. Mittal & Anr. (2000) 3 SCC 171 and J.R. Parashar V.
Prasant Bhushan, (2001) 6 SCC 735 – referred to.
Case Law Reference:
(1981) 1 SCC 436
F
G
H
[2010] 10 S.C.R.
referred to
Para 12
(2001) 8 SCC 82
referred to
Para 13
(1988) 3 SCC 167
referred to
Para 15
(2005) 1 SCC 254
referred to
Para 16
(1998) 7 SCC 379
referred to
Para 17
(2001) 7 SCC 549
referred to
Para 17
(1971) 1 SCC 626
referred to
Para 17
(1988) 3 SCC 26
referred to
Para 18
(1996) 4 SCC 411
referred to
Para 18
BIMAN BASU v. KALLOL GUHA THAKURTA & ANR. 635
636
A
A
B
B
K.K. Venugopal, Rajeev Dhawan, Bikas Ranjan
Bhattacharya, Rauf Rahim, Yadunandan Bansal, Gopal Shankar
C
Narayan, Pallavi Mohan for the Appellant.
C
(2000) 3 SCC 171
referred to
Para 19
(2001) 6 SCC 735
referred to
Para 21
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 607 of 2005.
From the Judgment & Order dated 31.03.2005 of the High
Court of Calcutta in C.P.A.N. No. 1535 of 2003.
Subrata Biswas, Dr. Kailash Chand, Mridula Ray
Bharadwaj, S.S. Jauhar for the Respondents.
The Judgment of the Court was delivered by
D
B. SUDERSHAN REDDY, J. 1. This appeal preferred
under Section 19(1) of the Contempt of Courts Act, 1971 is
directed against the judgment dated 31st March, 2005 of the
High Court of Calcutta in C.P.A.N. No. 1535 of 2003 whereby
the appellant has been held to have committed criminal E
contempt as defined in Section 2(c) of the Contempt of Courts
Act, 1971 and sentenced to undergo simple imprisonment for
a period of three days and to pay a fine of Rs.10,000/-.
2. The origin of the proceedings is traceable to an incident F
that had taken place on 24th September, 2003 when some of
the Judges of the Calcutta High Court while on their way to the
High Court were ‘detained’ by a police officer so as to allow
a procession of adivasis to pass by who were out to press
their demand for recognition of Shanthali as one of the G
Scheduled language under the Constitution of India. Justice
Amitava Lala of that Court felt the procession caused enormous
disruption not only to the “official business of the Court” but
also “the people at large”. The learned Judge issued suo-motu
rule of contempt upon Deputy Commissioner of Police (Traffic)
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[2010] 10 S.C.R.
and other police officers. As is evident from the order dated
29th September, 2003, the learned Judge felt humiliated as
the police officers refused to make necessary arrangements
for the free movement of his car so that he could reach the
Court on time. The learned Judge was of the opinion that the
“Court does not mean Court room but movement of the Judge
even outside, at least when he is moving to discharge his
official functions”. It is under those circumstances that the
learned Judge thought it fit that it was high time to issue suomotu rule of contempt upon the appropriate public authorities
to show cause. The learned Judge in the said contempt
proceedings initiated by him suo-motu issued as many as
twelve directions/guidelines with respect to traffic regulations
and holding of processions/meetings in the city of Kolkata.
We wish to say no more on this aspect of the matter since the
directions so issued by the learned Judge are stated to be
under the consideration in appeal before a Division Bench of
the High Court.
3. The appellant herein is alleged to have not only criticized
the order but also made certain adverse comments against
E the Judge who passed the said order. These comments were
widely reported and published in various newspapers on
5.10.2003. In the meanwhile, a Division Bench of the Calcutta
High Court stayed all the directions issued by the learned
Single Judge on 29th September, 2003 in the contempt
F proceedings concerning the regulation of traffic and
processions/public meetings. The respondents in this appeal
moved a contempt petition in the High Court on 13th October,
2003 with a prayer to initiate appropriate contempt proceedings
against the appellant for making deliberate and willful
G derogatory, defamatory and filthy statements against Justice
Amitava Lala which were widely published in the newspapers
and electronic media. In their petition, the respondents pleaded
that the derogatory, defamatory and contumacious statements
and remarks made by the appellant constitute a straight and
H direct attack upon a sitting High Court Judge and the same
BIMAN BASU v. KALLOL GUHA THAKURTA & ANR. 637
[B.SUDERSHAN REDDY, J.]
has not only lowered the dignity of the sitting High Court Judge
but also total judicial system of the country. They have
accordingly prayed to initiate contempt proceedings against
the appellants “under Sections 2(a), 2(b), 2(c) and 2(d) or any
other applicable Sections of the Contempt of Courts Act, 1971
and to put him behind the bars and also to saddle him with
fine…”. They have also prayed for award of costs and other
incidental charges in connection with the contempt application.
The contempt petition was duly supported by an affidavit as
required and solemnly affirmed by the first respondent. In the
affidavit, it is specifically stated that the statements, comments
and averments made in paragraph Nos. 1 to 4, 6 and 8 are
true to his knowledge.
4. A Division Bench of the Calcutta High Court vide its
order dated 17th October, 2003 passed the following order:
638
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“Heard.
After hearing Mr. Ali, learned counsel moving this petition
and perusing the issue of Bartaman dated 5th October,
2003, we are of the view that a Rule be issued. Rule is
made returnable on 7th of November, 2003.
This Court, however, makes it clear that the records of this
case may be placed before the Hon’ble the Chief Justice
for assignment of this rule for hearing before any Bench
that the Hon’ble the Chief Justice may think fit and proper”.
5. This order was followed by rule requiring the appellant
herein to show cause why he should not be committed to
prison or otherwise penalized or dealt with for making
“deliberate and willful derogatory, defamatory and filthy
statements against a sitting Judge of this Court Hon’ble Justice
Amitava Lala, as well making such derogatory, defamatory
and filthy languages (sic) remarks and statements in front (sic)
of the Press, Electronic Media and open meeting regarding
the order dated 29th September, 2003 passed by Justice
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[2010] 10 S.C.R.
A Amitava Lala.” The appellant was required to be personally
present on 7th November, 2003 before the Court. The appellant
was accordingly served with the contempt petition together
with all annexures and enclosures including the affidavit of the
first respondent filed in support of the contempt petition.
B
6. The appellant accordingly appeared before the Court
along with his counsel on 7th November, 2003 and filed a
brief affidavit in opposition inter alia stating that he has got
great respect to the dignity and majesty of the Court and that
he has never meant to show any disrespect to the High Court
C
or to any of the Judges of the Court and that if his act or
conduct reflected any disrespect, the same was inadvertent
and unintentional. He accordingly expressed his regret for such
“unintentional error”. The appellant also raised the issue of
maintainability of the contempt petition since the motion was
D moved without the consent in writing of the Advocate General.
The Court vide its order dated 7th November, 2003 expressly
kept open the question of maintainability of the petition.
Thereafter, various TV news channels and editors of
newspapers were added as parties to the contempt
E proceedings. The High Court after hearing the parties passed
the impugned judgment. Hence this appeal.
7. We have heard Shri K.K. Venugopal and Dr. Shri Rajiv
Dhawan, learned senior counsel for the appellant and none
F appeared on behalf of the respondents. We have, however,
considered the written submissions of the first respondent
which were filed into the Court after completion of the hearing
of the matter.
8. The Division Bench judgment has been divided into
G mainly five parts viz., (i) maintainability (ii) free speech and
contempt (iii) standard of proof (iv) fair comment and contempt
(v) evidence in the present case. The finding of the Division
Bench on the maintainability is that the contempt petition was
maintainable as suo-motu action has been taken by the Court
H to initiate contempt proceedings. Since the whole question
BIMAN BASU v. KALLOL GUHA THAKURTA & ANR. 639
[B.SUDERSHAN REDDY, J.]
centers around the maintainability of the application, it may be A
necessary to notice the view taken by the High Court in its own
words:
“In the instant case, having regard to the nature of the
complaint made in the petition along with the newspaper
B
reports which were also referred to in the High Court’s
order dated 17th October, 2003 while issuing the Rule
coupled with the fact that one of the petitioners was an
Advocate of this Court and the petition contained an
averment to take action suo-motu, this Court records that
it took the action suo-motu. Therefore, the objection about C
the maintainability of the proceedings is not sustainable”.
9. The main issue that arises for our consideration and
determination in this appeal is whether contempt proceedings
were initiated against the appellant suo-motu by the Court or D
by the respondents? The Contempt of Courts Act, 1971 as
enacted by the Parliament is an Act to define and limit the
powers of certain Courts in punishing for the contempt of
Courts and to regulate their procedure in relation thereto. The
Statement of Objects and Reasons clearly explains the reasons E
as to how it was felt that the existing law relating to contempt
of Courts was somewhat uncertain, undefined and
unsatisfactory. The jurisdiction to punish for contempt touches
upon two important fundamental rights of the citizen, namely,
the right to personal liberty and the right to freedom of F
expression. It was, therefore, considered advisable to have
the entire law on the subject scrutinized by a Special
Committee. Accordingly, a Committee was set up in 1961
under the Chairmanship of late Shri H.N. Sanyal, the then
Additional Solicitor General. The Committee made a
G
comprehensive examination of the law and problems relating
to contempt of Court in the light of the position obtaining in our
own country and various foreign countries. The
recommendations which the Committee made took note of
the importance given to freedom of speech in the Constitution
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[2010] 10 S.C.R.
and of the need for safeguarding the status and dignity of
Courts and interests of administration of justice. The
recommendations of the Committee have been generally
accepted by Government after considering the views expressed
on those recommendations by the State Governments, the
Supreme Court and the High Courts.
10. The Act, inter alia, defines criminal contempt and also
provides for the procedure of taking cognizance thereof. The
Act defines that “Contempt of Court means Civil contempt or
Criminal contempt”. In the present case, we are concerned
with the criminal contempt. Criminal contempt is defined in
Section 2(c) of the Contempt of Courts Act, 1971 and it says,
“criminal contempt means the publication (whether by words,
spoken or written, or by signs, or by visible representation, or
otherwise) of any matter or the doing of any other act
whatsoever which (i) scandalizes or tends to scandalize, or
lowers or tends to lower the authority of any Court; or (ii)
prejudices, or interferes or tends to interfere with the due
course of any judicial proceeding; or (iii) interferes or tends to
interfere with or obstructs or tends to obstruct the administration
of justice in any other manner”. In the case of criminal contempt,
other than a contempt referred to in Section 14, the manner of
taking cognizance has been provided for in Section 15 of the
Act. This Section, inter alia, provides that the action for contempt
may be taken by the Supreme Court or the High Court on its
own motion or on a motion made by (a) the Advocate-General
or (b) any other person with the consent in writing of the
Advocate General.
11. The question that arises in the present case is whether
the High Court can entertain a contempt petition filed by a
G
private person without the consent in writing of the Advocate
General? For determination of this issue, it will be relevant to
note the observations of the Sanyal Committee, whose
recommendations were taken into consideration for enacting
the Act. The Committee observed:
H
BIMAN BASU v. KALLOL GUHA THAKURTA & ANR. 641
[B.SUDERSHAN REDDY, J.]
642
“In the case of criminal contempt, not being contempt A
committed in the face of the Court, we are of the opinion
that it would lighten the burden of the court, without in any
way interfering with the sanctity of the administration of
justice, if action is taken on a motion by some other
agency. Such a course of action would give considerable B
assurance to the individual charged and the public at large.
Indeed, some High Courts have already made rules for the
association of the Advocate-General in some categories
of cases at least. . .the Advocate-General may, also, move
the court not only on his own motion but also at the instance C
of the court concerned. . . .”
12. In S.K. Sarkar, Member, Board of Revenue, U.P. Vs.
Vinay Chandra Misra1 this Court, approvingly referred to the
recommendations of the Committee and observed:
D
“If the High Court acts on information derived from its own
sources, such as from a perusal of the records of a
subordinate court or on reading a report in a newspaper
or hearing a public speech, without there being any
reference from the subordinate court or the Advocate- E
General, it can be said to have taken cognizance on its
own motion. But if the High Court is directly moved by a
petition by a private person feeling aggrieved, not being
the Advocate-General, can the High Court refuse to
entertain the same on the ground that it has been made F
without the consent in writing of the Advocate-General? It
appears to us that the High Court, has, in such a situation,
a discretion to refuse to entertain the petition, or to take
cognizance on its own motion on the basis of the
information supplied to it in that petition. If the petitioner is
G
a responsible member of the legal profession, it may act
suo motu, more so, if the petitioner-advocate, as in the
instant case, prays that the court should act suo motu. The
whole object of prescribing these procedural modes of
1.
(1981) 1 SCC 436.
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[2010] 10 S.C.R.
taking cognizance in Section 15 is to safeguard the
valuable time of the High Court or the Supreme Court from
being wasted by frivolous complaints of contempt of court.
If the High Court is prima facie satisfied that the
information received by it regarding the commission of
contempt of a subordinate court is not frivolous, and the
contempt alleged is not merely technical or trivial, it may,
in its discretion, act suo motu and commence the
proceedings against the contemner. However, this mode
of taking suo motu cognizance of contempt of a
subordinate court, should be resorted to sparingly where
the contempt concerned is of a grave and serious nature.
Frequent use of this suo motu power on the information
furnished by an incompetent petition, may render these
procedural safeguards provided in sub-section (2), otiose.
In such cases, the High Court may be well advised to avail
of the advice and assistance of the Advocate-General
before initiating proceedings”.
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13. In State of Kerala Vs. M.S. Mani2 this Court held:
“The requirement of consent of the Advocate-General/
Attorney-General/Solicitor-General where any person other
than the said law officers makes motion in the case of a
criminal contempt in a High Court or Supreme Court, as
the case may be, is not a mere formality; it has a salutary
purpose. The said law officers being the highest law
officers at the level of the State/Centre as also the officers
of the courts are vitally interested in the purity of the
administration of justice and in preserving the dignity of the
courts. They are expected to examine whether the
averments in the proposed motion of a criminal contempt
are made vindicating public interest or personal vendetta
and accord or decline consent postulated in the said
provision. Further, cases found to be vexatious, malicious
or motivated by personal vendetta and not in public interest
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2.
(2001) 8 SCC 82
BIMAN BASU v. KALLOL GUHA THAKURTA & ANR. 643
[B.SUDERSHAN REDDY, J.]
will get filtered at that level. If a motion of criminal contempt
in the High Court/Supreme Court is not accompanied by
the written consent of the aforementioned law officers, the
very purpose of the requirement of prior consent will be
frustrated. For a valid motion compliance with the
requirements of Section 15 of the Act is mandatory. A
motion under Section 15 not in conformity with the
provisions of Section 15, is not maintainable”.
644
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14. In M.S. Mani (supra), the consent of the learned
Attorney General was obtained after filing of the contempt
C
petition. This Court held that the motion to take action against
the respondents therein was not made with the consent of the
learned Attorney General or Solicitor General and therefore is
incompetent. This Court observed: “Subsequent obtaining of
the consent, in our view, does not cure the initial defect so as
to convert the incompetent motion into a maintainable petition”. D
15. In P.N. Duda Vs. P. Shiv Shankar3 this Court observed
that in terms of Section 15(1) and Rule 3(c), a petition for
contempt will not be maintainable by a private person without
the written consent of the Attorney General or the Solicitor E
General. One cannot get over the objection to the maintainability
of a petition without such consent merely by the device of
adding the Attorney General and Solicitor General as
respondents to the petition. In Paragraph 54 of the Judgment,
it is explained that so far as this Court is concerned, action for F
contempt may be taken by the court on its own motion or on
the motion of the Attorney-General (or Solicitor-General) or of
any other person with his consent in writing. This Court further
observed:
“There is no difficulty where the court or the Attorney- G
General choose to move in the matter. But when this is not
done and a private person desires that such action should
be taken, one of three courses is open to him. He may
3.
(1988) 3 SCC 167.
H
[2010] 10 S.C.R.
place the information in his possession before the court
and request the court to take action: (vide C.K. Daphtary
v. O.P. Gupta, (1971) 1 SCC 626 and Sarkar v. Misra,
(1981) 1 SCC 436); he may place the information before
the Attorney-General and request him to take action; or he
may place the information before the Attorney-General and
request him to permit him to move the court. In the present
case, the petitioner alleges that he has failed in the latter
two courses — this will be considered a little later — and
has moved this “petition” praying that this Court should take
suo motu action. The “petition” at this stage, constitutes
nothing more than a mode of laying the relevant
information before the court for such action as the court
may deem fit and no proceedings can commence until and
unless the court considers the information before it and
decides to initiate proceedings. Rules 3 and 4 of the
Supreme Court (Contempt of Court) Rules also envisage
a petition only where the Attorney-General or any other
person, with his written consent, moves the court”.
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16. In Bal Thackrey Vs. Harish Pimpalkhute4 this Court
held:
“It is well settled that the requirement of obtaining consent
in writing of the Advocate General for making motion by
any person is mandatory. A motion under Section 15 not
in conformity with the requirements of that section is not
maintainable”.
F
17. It is settled law that the High Courts even while
exercising their powers under Article 215 of the Constitution
to punish for contempt, the procedure prescribed by law is
G required to be followed (See L.P. Misra (Dr.) Vs. State of
U.P.,5 Pallav Sheth Vs. Custodian6). The High Court in the
H
4.
(2005) 1 SCC 254.
5.
(1998) 7 SCC 379.
6.
(2001) 7 SCC 549.
BIMAN BASU v. KALLOL GUHA THAKURTA & ANR. 645
[B.SUDERSHAN REDDY, J.]
646
present case relied on the decision of this Court in C.K.
Daphtary Vs. O.P. Gupta7 wherein this Court overruled the
objection raised on behalf of the alleged contemnor that the
contempt petition filed in the Supreme Court without the consent
of the Attorney General was not maintainable. The decision
was rendered prior to the Act coming into force. There was no
provision of law at the relevant time which prevented the Courts
from entertaining a petition filed by interested persons even
without the prior consent in writing of the Attorney General or
the Advocate General, as the case may be.
A
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B
18. The High Court in the present case rested its
conclusion relying on averments made in the petition stating
that “even a suo motu contempt proceedings may be initiated”
at the instance of the petitioners “on going through the
newspapers”. Be it noted that there is no prayer in the contempt
petition filed by the respondents to initiate suo motu
proceedings. We are unable to sustain the finding of the High
Court in this regard for the same is not supported by any
material available on record. The order dated 17th October,
2003 and the Rule issued in clear and categorical terms
reflects that law was set in motion exclusively based on the
averments made in the petition and the affidavit of verification
filed in support of the petition and the arguments of the counsel.
There is nothing on record suggesting that the contents of the
petition were treated as information placed before the Court
for initiating the contempt proceedings suo motu by the Court.
The contents of the petition of the respondents, their affidavit
of verification dated 13th October, 2003, the exhibits and
annexures to the said petition and the arguments of the counsel
alone constituted the foundation, based on which the law was
set in motion. The petition itself is not styled as any piece of
information that was placed before the court for its
consideration. It is not a case where the High Court refused to
entertain the petition and took cognizance on its own motion
on the basis of the information supplied to it in the petition.
C
C
D
D
E
E
F
F
7.
(1971) 1 SCC 626.
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[2010] 10 S.C.R.
The record does not bear any such proceedings of the Court.
Had it been so, the respondents would have been nowhere in
the picture. It is true that any person may move the High Court
for initiating proceedings for criminal contempt by placing the
facts constituting the commission of criminal contempt to the
notice of the Court. But once those facts are placed before the
Court, it becomes a matter between the Court and the
contemnor. But such person filing an application or petition
does not become a complainant or petitioner in the proceeding.
His duty ends with the facts being placed before the Court.
The Court may in appropriate cases in its discretion require
the private party or litigant moving the Court to render
assistance during the course of the proceedings. In D.N. Taneja
Vs. Bhajan Lal8 this Court observed that “a contempt is a
matter between the Court and the alleged contemnor. Any
person who moves the machinery of the Court for contempt
only brings to the notice of the court certain facts constituting
contempt of Court. After furnishing such information he may
still assist the Court, but it must always be borne in mind that
in a contempt proceeding there are only two parties, namely,
the Court and the contemnor”. Thus the person bringing the
facts constituting contempt to the notice of the Court can never
be a party to the lis nor can join the proceedings as a petitioner.
Similar is the view taken by this Court in State of Maharashtra
Vs. Mahboob S. Allibhoy & Anr.9.
19. In Om Prakash Jaiswal Vs. D.K. Mittal & Anr.10 this
Court held that the jurisdiction to initiate proceedings for
contempt as also the jurisdiction to punish for contempt in
spite of a case of contempt having been made out are both
discretionary with the Court. “Contempt generally and criminal
G contempt certainly is a matter between the Court and the alleged
contemnor”. No one can compel or demand as of right initiation
of proceedings for contempt. Certain principles have emerged.
H
8.
(1988) 3 SCC 26.
9.
(1996) 4 SCC 411.
10. (2000) 3 SCC 171.
BIMAN BASU v. KALLOL GUHA THAKURTA & ANR. 647
[B.SUDERSHAN REDDY, J.]
648
It is further observed : “Source of initiation of contempt A
proceedings may be suo motu, on a reference being made by
the Advocate General or any other person with the consent in
writing of the Advocate General or on reference made by a
subordinate Court in case of criminal contempt. A private party
or a litigant may also invite the attention of the Court to such B
facts as may persuade the Court in initiating proceedings for
contempt. However, such person filing an application or
petition before the Court does not become a complainant or
petitioner in the proceedings. He is just an informer or relator.
His duty ends with the facts being brought to the notice of the C
Court. It is thereafter for the Court to act on such information
or not to act though the private party or litigant moving the
Court may at the discretion of the Court continue to render
its assistance during the course of proceedings. (emphasis
supplied)
D
20. In the case in hand, it is evident from the record, the
respondents were continued to be shown as the petitioners in
the contempt case before the High Court and participated
throughout as if they were prosecuting the appellant. There is
no order reflecting that the Court having taken note of the E
information made before it, initiated suo motu proceedings on
the basis of such information furnished and required the
respondents only to assist the Court till the disposal of the
matter. On the contrary, respondents are shown as the
petitioners in the contempt case before the High Court. It is F
thus clear, it is the respondents who initiated the proceedings
and continued the same but without the written consent of the
Advocate General as is required in law. The proceedings,
therefore, were clearly not maintainable.
G
21. In what manner the suo motu power may be exercised
in appropriate cases is dealt with by this Court in J.R. Parashar
V. Prasant Bhushan11 in which it is observed:
A
H
H
11. (2001) 6 SCC 735.
B
C
D
E
F
G
SUPREME COURT REPORTS
[2010] 10 S.C.R.
“In any event the power to act suo motu in matters which
otherwise require the Attorney-General to initiate
proceedings or at least give his consent must be exercised
rarely. Courts normally reserve this exercise to cases
where it either derives information from its own sources,
such as from a perusal of the records, or on reading a
report in a newspaper or hearing a public speech or a
document which would speak for itself. Otherwise subsection (1) of Section 15 might be rendered otiose.”
22. While dealing with the importance of the procedure
for taking cognizance of criminal contempt other than a
contempt referred to in Section 14 of the Act, this Court in Bal
Thackrey (supra) observed:
“The directions in Duda case when seen and appreciated
in the light of what we have noticed hereinbefore in respect
of contempt action and the powers of the Chief Justice, it
would be clear that the same prescribe the procedure to
be followed by High Courts to ensure smooth working and
streamlining of such contempt actions which are intended
to be taken up by the Court suo motu on its own motion.
These directions have no effect of curtailing or denuding
the power of the High Court. It is also to be borne in mind
that the frequent use of suo motu power on the basis of
information furnished in a contempt petition otherwise
incompetent under Section 15 of the Act may render the
procedural safeguards of the Advocate General’s consent
nugatory. We are of the view that the directions given in
Duda case are legal and valid.”
23. In exercise of the powers conferred by Section 23 of
the Contempt of Courts Act, 1971 and by Article 215 of the
Constitution of India and other enabling powers in that behalf,
the High Court of Calcutta made the rules to regulate the
proceedings for contempt of itself or of a Court subordinate to
it under the Act. The rules are known as Calcutta High Court
Contempt of Court Rules, 1975. The rules, inter alia, provide
BIMAN BASU v. KALLOL GUHA THAKURTA & ANR. 649
[B.SUDERSHAN REDDY, J.]
that proceedings in a criminal contempt may be initiated (a)
on its own motion by the High Court under Section 15(1) of the
Act; or (b) on a motion founded on a petition presented by the
Advocate General under Section 15(a) of the Act; or (c) on a
motion founded on a petition presented by any other person
with the consent in writing of the Advocate General under
Section 15(1)(b) of the Act. Every such petition shall contain
full particulars of the material upon which the petition is
grounded and the prayer to the petition and distinctly state the
particular contumacious conduct alleged for which the rule is
prayed for and shall be signed and dated by the petitioner or
his duly authorized agent and every such petition shall be
verified by the solemn affirmation made by the petitioner or by
a person or persons having cognizance of facts stated and
shall state clearly whether the statements are based on
knowledge, information and belief or on record. Rule 19 of the
rules enables the Court either to issue Rule Nisi or summarily
reject the petition or make such order thereupon as thought fit
and the Rule Nisi shall be drawn up as far as may be in the
model form in Form No.1, Appendix I. Rule 20 provides that
where the Rule is issued by the Court on its own motion or on
a motion made by the Advocate General under Section 15,
the Rule Nisi shall be drawn up, as far as may be in the model
Form No. 2, Appendix I. It is fairly well settled that Schedules,
Forms and Appendix form part of the statutes and or the rules
as the case may be.
24. In the present case, Rule Nisi has been issued under
the orders of the High Court in Form No. 1 and not in Form
No.2. Had it been a proceeding initiated by the Court on its
own motion, the Rule Nisi would have been issued in the model
Form No.2, Apendix I. It is clearly evident from the record that
the Court did not set the law in motion on its own accord. In
the present case, the petitioner No.1 before the High Court is
a practicing advocate and argued his case in person. Sofaras
petitioner No.2 is concerned, he was represented by more
than one lawyer. We have meticulously examined the contempt
650
A
B
C
D
SUPREME COURT REPORTS
[2010] 10 S.C.R.
A petition in which there was no prayer for taking suo motu action
against the appellants. The proceedings before the High Court
were initiated by the respondents by filing contempt petition
under Section 15. The petition was vigorously pursued and
argued as private petition. From the material available on
B record including the impugned judgment, it is impossible to
accept the view taken by the High Court that the Court had
taken suo motu action. Even in this Court, the respondents
entered their appearance through their counsel who did not
turn up but elaborate written submissions were submitted by
C the first respondent.
D
25. For all the aforesaid reasons, we hold that the petition
to take action against the appellant under Section 15 without
the written consent of the learned Advocate General was not
maintainable in law.
26. For the view we have taken as regards the
maintainability of the petition itself, we are not required to go
into the merits of the case.
E
E
27. The impugned judgment is accordingly set aside. The
appeal is allowed.
B.B.B
F
G
H
Appeal allowed.
652
[2010] 10 S.C.R. 651
BABUBHAI
v.
STATE OF GUJARAT & ORS. ETC.
(Criminal Appeal No. 1599 of 2010)
AUGUST 26, 2010
A
A
B
B
C
C
D
D
E
E
[P. SATHASIVAM AND DR. B.S. CHAUHAN, JJ.]
FIR – Two FIRs – Investigation into – Permissibility –
Held: If the court finds that both the FIRs relate to the same
incident, second FIR is liable to be cancelled – But if both
the FIRs are in respect of different incidents, investigation in
both the FIRs has to be conducted – On facts, the two FIRs
pertained to the same transaction – High Court rightly
quashed the second FIR – Code of Criminal Procedure, 1973
– s. 154.
Investigation – Two FIRs lodged – High Court quashing
one of the FIRs and finding that investigation was biased and
unfair, directed investigation into the surviving FIR by
independent agency – High Court also directed the charges
in the quashed FIR to be read in the surviving case –
Propriety of High Court order – Held: If investigation is held
to be unfair, such vitiated investigation cannot give rise to a
valid charge-sheet – Thus, charge-sheets filed in both the
cases became inconsequential – If the court finds the
investigation to be unfair, the court can direct only further
investigation and not re-investigation – The power of the court
to interfere with investigation and direct further investigation
is limited and can be exercised only in exceptional
circumstances – Direction issued to the independent
investigating agency, chosen by the High Court, to make fresh
investigation – Charge-sheets in both the cases and any
order consequent thereto, quashed – Code of Criminal
Procedure, 1973 – s. 173(8).
651
F
F
SUPREME COURT REPORTS
[2010] 10 S.C.R.
Constitution of India, 1950 – Articles 20 and 21 – Fair
investigation – Held: Is part of the constitutional rights
guaranteed under Articles 20 and 21 – Investigation.
In a criminal case two FIRs were lodged which were
registered as CR No.I-154/2008 and CR No.I-155/2008,
respectively. The accused in both the cases filed Special
Criminal Application, seeking investigation of CR No. I154/2008 by an independent agency. They also filed
Special Criminal Application for quashing both the
criminal cases. The High Court quashed the FIR
registered as CR No.I-155/2008 and clubbed the
investigation of the FIR alongwith the investigation of the
other FIR bearing CR No.I-154/2008. The High Court
transferred the investigation to the State CID, Crime
Branch, directing investigation of the case in CR No.I-154/
2008. The High Court further clarified that quashing of FIR
bearing CR No.I-155/2008 did not mean that the accused
in the said FIR were discharged, but they would face
charges in CR No.I-154/2008 and the accused who stood
arrested in connection with CR No.I-155/2008 would
stand arrested in connection with case CR.No.I-154/2008.
Therefore, the instant appeals were filed by the
complainant as well as the State.
The Appellant/complainant and the State inter-alia
contended that the FIRs could not be clubbed as there
were two separate incidents at two different places and
for distinct offences.
Disposing of the appeals, the Court
G
H
HELD: 1.1 An FIR u/s. 154 Cr.P.C. is a very important
document. It sets the machinery of criminal law in motion
and marks the commencement of the investigation which
ends with the formation of an opinion u/s. 169 or 170
Cr.P.C. as the case may be, and forwarding of a police
H report u/s. 173 Cr.P.C. Thus, it is quite possible that more
G
BABUBHAI v. STATE OF GUJARAT & ORS. ETC.
653
than one piece of information be given to the Police
Officer incharge of the Police Station in respect of the
same incident involving one or more than one cognizable
offences. In such a case, he need not enter each piece
of information in the Diary. All other information given
orally or in writing after the commencement of the
investigation into the facts mentioned in the FIR will be
statements falling u/s. 162 Cr.P.C. [Para 17] [668-E-H]
1.2 In such a case, the court has to examine the facts
and circumstances giving rise to both the FIRs and the
test of sameness is to be applied to find out whether both
the FIRs relate to the same incident in respect of the same
occurrence or are in regard to the incidents which are
two or more parts of the same transaction. If the answer
is in the affirmative, the second FIR is liable to be
quashed. However, in case, the contrary is proved, where
the version in the second FIR is different and they are in
respect of the two different incidents/crimes, the second
FIR is permissible. In case, in respect of the same incident
the accused in the first FIR comes forward with a different
version or counter claim, investigation on both the FIRs
has to be conducted. [Para 17] [669-A-C]
1.3 In the instant case, if both the FIRs are compared,
there is no doubt that both the incidents had occurred
at the same place in close proximity of time, therefore,
they are two parts of the same transaction. More so, the
death of ‘A’ was mentioned in both the FIRs. From the
report for deletion of Section 302 IPC, it is apparent that
it is not the case of the Investigating Officer that the death
of ‘A’ had not occurred during the course of the incident
in connection with which C.R. No.I-154 of 2008 came to
be registered. The scene of offence panchnamas
establish clearly that the incidents in both the cases
could not be distinct and independent of each other. In
fact, it is nobody’s case that incident relating to CR No.I-
654
SUPREME COURT REPORTS
[2010] 10 S.C.R.
A
A 155/08 occurred at a different place. Thus, High Court
reached the correct conclusion and the second FIR
C.R.No. I-155/2008 was liable to be quashed. [Paras 18,
19 and 20] [670-A-H]
B
B
C
D
E
F
G
H
Ram Lal Narang vs. Om Prakash Narang and Anr. AIR
1979 SC 1791; T.T. Antony vs. State of Kerala and Ors.
(2001) 6 SCC 181; Upkar Singh vs. Ved Prakash and Ors.
(2004) 13 SCC 292; Rameshchandra Nandlal Parikh vs.
State of Gujarat and Anr. (2006) 1 SCC 732; Nirmal Singh
Kahlon vs. State of Punjab and Ors. (2009) 1 SCC 441 –
C
relied on.
2.1 Not only the fair trial but fair investigation is also
part of the constitutional rights guaranteed under Articles
20 and 21 of the Constitution of India. Therefore,
D investigation must be fair, transparent and judicious as
it is the minimum requirement of rule of law. Investigating
agency cannot be permitted to conduct an investigation
in tainted and biased manner. Where non- interference of
the court would ultimately result in failure of justice, the
E court must interfere. [Para 34] [679-B-C]
2.2 The investigation into a criminal offence must be
free from objectionable features or infirmities which may
legitimately lead to a grievance on the part of the
accused that the investigation was unfair and carried out
F with an ulterior motive. It is also the duty of the
Investigating Officer to conduct the investigation avoiding
any kind of mischief and harassment to any of the
accused. The Investigating Officer should be fair and
conscious so as to rule out any possibility of fabrication
G of evidence, and his impartial conduct must dispel any
suspicion as to its genuineness. The Investigating Officer
“is not to bolster up a prosecution case with such
evidence as may enable the court to record conviction,
but to bring out the real unvarnished truth”. [Para 25]
H [675-B-D]
BABUBHAI v. STATE OF GUJARAT & ORS. ETC..
655
R.P. Kapur vs. State of Punjab AIR 1960 SC 866;
Jamuna Chaudharyand Ors. vs. State of Bihar AIR 1974 SC
1822; Mahmood vs. State of U.P. AIR 1976 SC 69; State of
Bihar vs. P.P. Sharma AIR 1991 SC 1260; Navinchandra N.
Majithia vs. State of Meghalaya and Ors. AIR 2000 SC 3275;
K. Chandrasekhar vs. State of Kerala and Ors. (1998) 5 SCC
223; Ramachandran vs. R.Udhayakumar and Ors. (2008) 5
SCC 413; Nirmal Singh Kahlon vs. State of Punjab and Ors.
(2009) 1 SCC 441; Mithabhai Pashabhai Patel and Ors. vs.
State of Gujarat (2009) 6 SCC 332; Kishan Lal vs.
Dharmendra Bafna (2009) 7 SCC 685 – relied on.
2.3 Where the court comes to the conclusion that
there was a serious irregularity in the investigation that
had taken place, the court may direct a further
investigation u/s. 173(8) Cr.P.C, even transferring the
investigation to an independent agency, rather than
directing a re-investigation. “Direction of a reinvestigation, however, being forbidden in law, no
superior court would ordinarily issue such a direction.”
Unless an extra-ordinary case of gross abuse of power
by those in charge of the investigation is made out, the
court should be quite loathe to interfere with the
investigation, a field of activity reserved for the police and
the executive. Thus, in case of a mala fide exercise of
power by a police officer, the court may interfere. The
scheme of investigation, particularly, Section 173(8)
Cr.P.C. provides for further investigation and not for r einvestigation. Therefore, if the Court, comes to the
conclusion that the investigation has been done in a
manner with an object of helping a party, the court may
direct for further investigation and ordinarily not for reinvestigation. [Paras 30, 31 and 33] [678-D-G; 679-B]
S.N. Sharma vs. Bipen Kumar Tiwari and Ors. AIR 1970
SC 786;Kashmeri Devi vs. Delhi Administration and Anr. AIR
1988 SC 1323; Kashmeri Devi v. Delhi Administration and
Anr. AIR 1988 SC 32 – relied on.
656
A
B
C
D
E
F
G
SUPREME COURT REPORTS
[2010] 10 S.C.R.
2.4 The expression ‘ordinarily’ means normally and
it is used where there can be an exception. It means in
the large majority of cases but not invariably. ‘Ordinarily’
excludes ‘extra-ordinary’ or ‘special circumstances’.
Thus, in exceptional circumstances, the court in order to
B prevent the miscarriage of criminal justice, if considers
necessary, it may direct for investigation de novo. [Para
33] [679-D-E]
A
Kailash Chandra vs. Union of India AIR 1961 SC 1346;
Eicher Tractors Ltd., Haryana vs. Commissioner of Customs,
C Bombay AIR 2001 SC 196; State of A.P. vs. Sarma Rao and
Ors. AIR 2007 SC 137 – relied on.
2.5 In the instant case, the investigation in respect of
both the FIRs has not been fair and has caused serious
D prejudice to one party. That apart, even before the High
Court, the conduct of the party and investigating agency
has not been fair. If the High Court has quashed the FIR
in C.R.No. I-155/2008, the charge-sheet, which was filed
after investigation of allegations made therein, could not
E survive and could not be directed to be read in another
case nor could other consequential orders be read in
another case. Further, in case the High Court came to the
conclusion that investigation was totally biased, unfair
and tainted, the investigation had to be held to have stood
F vitiated and as a consequence thereof, charge-sheets
filed in both the cases could have become
inconsequential. [Paras 21 and 24] [673-G-H; 674-G]
Nirmal Singh Kahlon vs. State of Punjab and Ors. (2009)
1 SCC 441; Manu Sharma vs. State (NCT of Delhi) (2010)
G 6 SCC 1 – relied on.
2.6 A charge sheet is the outcome of an investigation.
If the investigation has not been conducted fairly, such
vitiated investigation cannot give rise to a valid charge-
H
H
BABUBHAI v. STATE OF GUJARAT & ORS. ETC.
657
sheet. Such investigation would ultimately prove to be
precursor of miscarriage of criminal justice. In such a
case the court would simply try to decipher the truth only
on the basis of guess or conjunctures as the whole truth
would not come before it. In the instant case, the High
Court has given detailed reasons for coming to the
conclusion that the investigation has been totally onesided, biased and mala fide. One party has been favoured
by the investigating agency. The natural corollary to this
finding is that the other party has been harassed in an
unwarranted manner. Thus, the cause of the other party
has been prejudiced. The charge-sheets filed by the
investigating agency in both the cases are against the
same set of accused. It will be difficult for the court to
determine how the incident took place wherein three
persons died and so many persons including the
complainant and accused got injured. [Para 34] [679-FH; 680-A-B]
2.7 Thus, it may be in the interest of justice that
independent agency chosen by the High Court makes a
fresh investigation. Thus, the order of the High Court
requires modification to the extent that the charge-sheets
in both the cases and any order consequent thereto
stand quashed. In case, any of the accused could not get
bail because of the pendency of the instant appeals
before this Court, it shall be open to him to apply for bail
or any other relief before the appropriate forum. In case,
such an application is filed, the appropriate court is
directed to decide the same, expeditiously and in
accordance with law. [Para 34] [680-D-E]
2.8 It is further clarified that those persons who were
arrested in connection with CR No. I-155/08 would not
stand arrested in connection with CR No. I-154/08.
However, if during the fresh investigation, any
incriminating material against any person is discovered,
658
SUPREME COURT REPORTS
[2010] 10 S.C.R.
A
A the Investigating Authority may proceed in accordance
with law. It shall be open to the accused to approach the
appropriate forum for any interim relief as per law. [Para
34] [680-F-G]
B
B
C
D
E
F
G
H
C
D
E
F
G
H
Case Law Reference:
AIR 1979 SC 1791
Relied on.
Para 12
(2001) 6 SCC 181
Relied on.
Para 13
(2004) 13 SCC 292
Relied on.
Para 14
(2006) 1 SCC 732
Relied on.
Para 15
(2009) 1 SCC 441
Relied on.
Para 16,
28 and 30
AIR 1960 SC 866
Relied on.
Para 25
AIR 1974 SC 1822
Relied on.
Para 25
1976 SC 69
Relied on.
Para 25
AIR 1991 SC 1260
Relied on.
Para 25
AIR 2000 SC 3275
Relied on.
Para 27
(2010) 6 SCC 1
Relied on.
Para 29
(1998) 5 SCC 223
Relied on.
Para 30
(2008) 5 SCC 413
Relied on.
Para 30
(2009) 6 SCC 332
Relied on.
Para 30
(2009) 7 SCC 685
Relied on.
Para 30
AIR 1970 SC 786
Relied on.
Para 31
AIR 1988 SC 1323
Relied on.
Para 32
AIR 1961 SC 1346
Relied on.
Para 33
AIR 2001 SC 196
Relied on.
Para 33
BABUBHAI v. STATE OF GUJARAT & ORS. ETC.
AIR 2007 SC 137
Relied on.
659
Para 33
660
A
B
B
C
C
D
D
E
E
F
F
G
G
H
H
WITH
Criminal Appeal No. 1600-1605 of 2010.
U.U. Lalit, P.S. Narsimha, R.K. Abichandani, C.A.
Sundram, Tushar Mehta, AAG. Ankur Chawla, Rahul Pratap,
Jayant Mohan (for COAC), Vimal Chandra S. Dave, Laxmi
Abichandani, Sunil Patel, Hemantika Wahi, Meensha
Lovkumar, Nupur, Sushil Kumar Jain, Puneet Jain, Rohini Musa,
Abhishek Gupta, Zafar I., Anandh Kannan, P.K. Dey, Anirudh
Sharma, A.K. Sharma, V.K. Biju, D.R. Bhatt, D.K. Garg, Keshav
C. Thakur for the appearing parties.
The Judgment of the Court was delivered by
DR. B.S. CHAUHAN, J. 1. Leave granted.
2. These appeals and other connected appeals have been
preferred against the judgment and order dated 22.12.2009 of
the High Court of Gujarat at Ahmedabad, passed in Special
Criminal Application Nos. 1675/2008, 1679/2008 with Crl.
Misc. Application Nos. 8249/2009, 8361/2009, 8363/2009 and
7687/2009.
3. Facts and circumstances giving rise to the present
cases are that on 7.7.2008, some altercation took place
between members of the Bharwad and the Koli Patel
communities over the plying of rickshaws in the area
surrounding Dhedhal village of Distt. Ahmedabad, Gujarat. The
Bharwad community had been preventing the Koli Patels from
[2010] 10 S.C.R.
A running their rickshaws in the said area.
Criminal APPELLATE JURISDICTION : Criminal Appeal
No. 1599 of 2010.
From the Judgment and order 22.12.2009 of the High
Court of Gujarat at Ahmedabad in Criminal Misc. Application
No. 8249 of 2009.
SUPREME COURT REPORTS
On the next day, i.e. on 8.7.2008, case No. C.R.No.I-154/
2008, was registered at 17:30 hours in the Bavla Police Station
under Sections 147, 148, 149, 302, 307, 332, 333, 436 and
427 of the Indian Penal Code, 1860 (hereinafter called as
“IPC”) read with Section 135 of the Bombay Police Act, 1951
(for short “BP Act”) and Sections 3, 7 of Prevention of Damages
of Public Property Act, 1984 (for short “1984 Act”) for an incident
which occurred at Village Dhedhal, wherein Mr. M.N. Pandya,
Sub-Inspector of Police, Bavla Police Station has stated that
while he was patrolling in Bavla Town, he received a message
from H.C. Kanaiyalal, Police Station Officer, at 10.00 a.m. that
some altercation/incident had taken place between the two
communities at Dhedhal Cross Roads. On receiving the said
information, he along with other police personnel, rushed to the
place of incident, however, by that time the crowd had already
dispersed. Thereafter, he received information that a clash was
going on between the said two communities in Dhedhal village.
Immediately, he contacted the Control Room, as well as the
Deputy Superintendent of Police of Dholka, for further police
support and rushed to the spot where he found about 20003000 persons from both the communities, all with sticks,
dhariyas, swords etc., attacking each other. The police resorted
to teargas shells as well as to lathi charges to disperse the
crowd. Several rounds of firing were resorted to in order to
disperse the mob. In the incident, more than 20 persons were
injured and three houses of members of the Bharwad
community were set on fire. One person, namely Ajitbhai
Prahladbhai, also died. Several police personnel were also
injured. No person was named in the said FIR.
4. Another FIR, being Case No. C.R.No. I-155 of 2008,
was registered at Bavla Police Station on the same date i.e.
8.7.2008 at 22:35 hrs by Babubhai Popatbhai Koli Patel
(appellant in SLP (Crl.) No.2077/2010 and respondent in SLP
(Crl.) Nos. 3235-3240/2010) (hereinafter called as
BABUBHAI v. STATE OF GUJARAT & ORS. ETC.
[DR. B.S. CHAUHAN, J.]
661
complainant), resident of village Vasna, Taluka Bavla, wherein A
he alleged that an incident took place on the same day at 9:15
hours near Dhedhal village in which he named 18 persons as
accused. As per this FIR, an incident occurred on 7.7.2008 in
the evening at about 6.30 p.m. His cousin Jayantibhai
Gordhanbhai told him that when Budhabhai of their village and B
two rickshaw-walas were taking passengers at Dhedhal Chokdi,
the Bharwads of Dhedhal village who were also plying
rickshaws, chhakdas etc. told the Koli Patels not to take
passengers from there and they took away the keys of the jeep,
beat up the Koli Patel boys, abused and threatened them and C
told them not to bring jeeps and rickshaws to Dhedhal Chokdi.
Babubhai Popatbhai Koli Patel, complainant reached Dhedhal
Chokdi and met Budhabhai Laljibhai Koli Patel of his village
and his brother Jayantibhai Laljibhai and enquired about the
incident. They complained about browbeating and threatening D
by the Bharwads as the Bharwads wanted that no one else
should bring jeeps and chhakdas to Dhedhal Chokdi. The
informant/complainant stated that Kantibhai Ratanbhai Bharwad
and other persons standing nearby told them to stop and threats
were made by the Bharwads. On the date of the incident, when
E
the informant was coming towards Dhedhal village from Vasna,
his cousin Vadibhai Pakhabhai’s tractor and one chhakda
rickshaw were passing through the road. When they reached
near Dhedhal village pond, the rickshaw and tractor were
halted, his car was also stopped and he got down from the car
and saw that 10 to 12 persons belonging to the Bharwad F
community were assaulting his cousin Vadibhai Pakhabhai and
Amubhai Pakhabhai with sticks. They were also assaulting the
chhakda rickshaw-walas. He saw Ganesh Jaksi of the Bharwad
community of Dhedhal village having tamancha-like weapon in
his hand and instigating the other persons to indulge in violence. G
He also saw Sanjay Chela Bharwad, Dhiru Matam Bharwad,
Sura Raiji Bharwad of Dhedhal intercepting people going on
the road and Karshan Chako Bharwad, Moman Natha
Bharwad, Kalu Sedhu Bharwad, Kalu Hari Bharwad, Chinu
Bhikhu Bharwad assaulting Vadibhai Pakhabhai and Amubhai H
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as well as the chhakda rickshaw-wala saying that the road was
not for them and thus, they should not pass through it. The
complainant and Manubhai went to rescue Vadibhai. At that
time, Jayantibhai Laljibhai Patel of their village and Matambhai
Vadibhai Patel came on a motor cycle. They were also
stopped and all the persons jumped on them and started
assaulting and abusing them. He saw that Surabhai Raijibhai
Bharwad had inflicted stick blows on Manubhai due to which
he was injured and became unconscious. When the mob beat
up Manubhai, at that time, other Bharwads from Dhedhal village
had also arrived.
5. The Bharwads started beating passersby on vehicles,
who had worn clothes like Koli Patels and causing injuries to
them. The Bharwads made calls on mobile phones to call other
Bharwads. The Bharwads assaulted and killed Manubhai Koli
Patel and Ajitbhai Prahladbhai Koli Patel by assaulting them
with deadly weapons like revolver, dhariyas and sticks and also
caused serious injuries to Babubhai Popatbhai Koli Patel,
informant/complainant on his head and hand. They also caused
minor and major injuries to other persons.
6. On 9.7.2008, the inquest panchnama was carried out
and three dead bodies were sent for post mortem. The report
of the autopsy revealed a large number of injuries inflicted on
the deceased persons. Statements of injured witnesses, who
were admitted in Long Life Hospital, namely Dashratbhai
Popatbhai Patel (PW.26), Hemubhai Babubhai Patel (PW.12),
Jayantibhai Laljibhai (PW.14), Vadibhai Pakhabhai (PW.27)
were recorded on 10.07.2008. Statements of injured witness
Matambhai Vadibhai (PW.18) were recorded on 10.7.2008 and
21.7.2008.
7. The accused in both the cases filed Special Criminal
Application No. 1675/2008 praying for investigation of CR No.I154/2008 registered with Bavla Police Station by an
independent agency like the CBI, Special Criminal Application
No. 1679/2008 for quashing of C.R. No.I-154/2008 and C.R.
BABUBHAI v. STATE OF GUJARAT & ORS. ETC.
[DR. B.S. CHAUHAN, J.]
663
No.I-155/2008 registered with Bavla Police Station. Three
applications being Criminal Misc. Application Nos. 8249/2009,
8361/2009 and 8363/2009 to quash and set aside the
proceedings undertaken by Sessions Court during the
pendency of the applications filed earlier were made. Twenty
two persons were arrested. On completion of investigation, the
charge sheet was filed on 10.10.2008 against 12 accused
persons and the case was committed to Sessions Court.
664
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8. By judgment and final order dated 22.12.2009, the High
Court quashed the FIR registered as CR No.I-155/2008 and
clubbed the investigation of the FIR along with the investigation C
of the other FIR bearing CR No.I-154/2008 to the extent it was
feasible. The court transferred the investigation to the State CID
Crime Branch and directed the new Investigating Officer to
investigate the Bavla Police Station C.R.No.I-154/2008 as it
stood earlier prior to the deletion of Section 302 IPC with a D
further clarification that quashing of the FIR registered by Bavla
Police Station i.e. C.R.No.I-155 of 2008 could not mean that
accused in respect of the said FIR has been discharged of the
offences as they would face the charges in C.R. No.I-154/2008
and the accused who stood arrested in connection with E
C.R.No.I-155 of 2008 would stand arrested in connection with
case C.R. No.I-154/2008. Hence, these appeals.
9. Shri R.K. Abichandani, learned senior counsel
appearing for the appellant/complainant in C.R. No.I-155/2008, F
and Shri Tushar Mehta, learned Additional Advocate General
have submitted that the High Court quashed the FIR without
appreciating that there are no common factors in both the FIRs
so as to indicate that both FIRs had arisen out of the same
transaction. Thus, the FIRs could not be clubbed; the incident
G
recorded in CR No. I-155/08 occurred prior in point of time and
facts recorded in both the FIRs make it evident that there had
been two separate incidents at two different places and for
distinct offences. In CR No. I-155/08, three persons belonging
to Koli Patel community had died and 26 persons of the same
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[2010] 10 S.C.R.
community were injured at the hands of Bharwads, whereas no
person from the Bharwad community suffered any injury. Both
the FIRs had been lodged specifying that the FIR in CR No.I155/08 has been in respect of the incident occurred at 9.15 am
while the incident involved in CR No. I-154/08 has been in
respect of incident occurred at 9.30 am. The incident first in
time took place at Dhedhal Chokdi (Cross Roads) while the
other incident occurred in village Dhedhal near the pond. The
Court further erred in granting the relief to persons/applicants
before it who had been absconding according to the
Investigating Agency. Thus, their applications could not have
been entertained. The appeals deserve to be allowed and the
judgment and order of the High Court is liable to be set aside.
10. On the contrary, Shri U.U. Lalit, Shri C.A. Sundaram,
Shri Rajeev Dhavan, and Shri P.S. Narsimha, learned senior
counsel appearing for the respondents-accused in C.R. No.I155/2008, have opposed the appeals contending that the High
Court reached the correct conclusion that both the crimes were
two parts of the same transaction. They occurred at the same
place and the version given by Babubhai Popatbhai Koli Patel
in C.R. No.I-155/2008 cannot be considered a counter version
giving rise to a cross case. Thus, no interference with the
impugned judgment and order of the High Court is required.
11. We have considered the rival submissions made by
learned counsel for the parties and perused the record.
Two FIRs.
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12. In Ram Lal Narang Vs. Om Prakash Narang & Anr.
AIR 1979 SC 1791, this Court considered a case wherein two
FIRs had been lodged. The first one formed part of a
subsequent larger conspiracy which came to the light on receipt
of fresh information. Some of the conspirators were common
in both the FIRs and the object of conspiracy in both the cases
was not the same. This Court while considering the question
as to whether investigation and further proceedings on the basis
BABUBHAI v. STATE OF GUJARAT & ORS. ETC.
[DR. B.S. CHAUHAN, J.]
665
of both the FIRs was permissible held that no straitjacket
formula can be laid down in this regard. The only test whether
two FIRs can be permitted to exist was whether the two
conspiracies were identical or not. After considering the facts
of the said case, the Court came to the conclusion that both
conspiracies were not identical. Therefore, lodging of two FIRs
was held to be permissible.
13. In T.T. Antony Vs. State of Kerala & Ors. (2001) 6 SCC
181, this Court dealt with a case wherein in respect of the same
cognizable offence and same occurrence two FIRs had been
lodged and the Court held that there can be no second FIR and
no fresh investigation on receipt of every subsequent
information in respect of the same cognizable offence or same
occurrence giving rise to one or more cognizable offences.
The investigating agency has to proceed only on the information
about commission of a cognizable offence which is first entered
in the Police Station diary by the Officer In-charge under
Section 158 of the Code of Criminal Procedure, 1973
(hereinafter called the Cr.P.C.) and all other subsequent
information would be covered by Section 162 Cr.P.C. for the
reason that it is the duty of the Investigating Officer not merely
to investigate the cognizable offence report in the FIR but also
other connected offences found to have been committed in the
course of the same transaction or the same occurrence and
the Investigating Officer has to file one or more reports under
Section 173 Cr.P.C. Even after submission of the report under
Section 173(2) Cr.P.C., if the Investigating Officer comes
across any further information pertaining to the same incident,
he can make further investigation, but it is desirable that he
must take the leave of the court and forward the further
evidence, if any, with further report or reports under Section
173(8) Cr.P.C. In case the officer receives more than one piece
of information in respect of the same incident involving one or
more than one cognizable offences such information cannot
properly be treated as an FIR as it would, in effect, be a second
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[2010] 10 S.C.R.
A FIR and the same is not in conformity with the scheme of the
Cr.P.C. The Court further observed as under:
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“A just balance between the fundamental rights of the
citizens under Articles 19 and 21 of the Constitution and
the expansive power of the police to investigate a
cognizable offence has to be struck by the court. There
cannot be any controversy that sub-section (8) of Section
173 CrPC empowers the police to make further
investigation, obtain further evidence (both oral and
documentary) and forward a further report or reports to the
Magistrate……. However, the sweeping power of
investigation does not warrant subjecting a citizen each
time to fresh investigation by the police in respect of the
same incident, giving rise to one or more cognizable
offences, consequent upon filing of successive FIRs
whether before or after filing the final report under Section
173(2) CrPC. It would clearly be beyond the purview of
Sections 154 and 156 CrPC, nay, a case of abuse of the
statutory power of investigation in a given case. In our
view a case of fresh investigation based on the second
or successive FIRs, not being a counter-case, filed in
connection with the same or connected cognizable
offence alleged to have been committed in the course
of the same transaction and in respect of which pursuant
to the first FIR either investigation is under way or final
report under Section 173(2) has been forwarded to the
Magistrate, may be a fit case for exercise of power under
Section 482 CrPC or under Articles 226/227 of the
Constitution.” (Emphasis added).
14. In Upkar Singh Vs. Ved Prakash & Ors. (2004) 13
SCC 292, this Court considered the judgment in T.T. Antony
(supra) and explained that the judgment in the said case does
not exclude the registration of a complaint in the nature of
counter claim from the purview of the court. What had been laid
down by this Court in the aforesaid case is that any further
BABUBHAI v. STATE OF GUJARAT & ORS. ETC.
[DR. B.S. CHAUHAN, J.]
667
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SUPREME COURT REPORTS
[2010] 10 S.C.R.
A
A the CBI dealt with a larger conspiracy. Therefore, this
investigation has been on a much wider canvass and held that
second FIR was permissible and required to be investigated.
The Court held as under:
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15. In Rameshchandra Nandlal Parikh Vs. State of
Gujarat & Anr. (2006) 1 SCC 732, this Court reconsidered the
earlier judgment including T.T. Antony (supra) and held that in
case the FIRs are not in respect of the same cognizable offence
or the same occurrence giving rise to one or more cognizable
offences nor are they alleged to have been committed in the
course of the same transaction or the same occurrence as the
one alleged in the First FIR, there is no prohibition in accepting
the second FIR.
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16. In Nirmal Singh Kahlon Vs. State of Punjab & Ors.
(2009) 1 SCC 441, this Court considered a case where an FIR
had already been lodged on 14.6.2002 in respect of the
offences committed by individuals. Subsequently, the matter
was handed over to the Central Bureau of Investigation (CBI),
which during investigation collected huge amount of material
and also recorded statements of large number of persons and
the CBI came to the conclusion that a scam was involved in
the selection process of Panchayat Secretaries. The second
FIR was lodged by the CBI. This Court after appreciating the
evidence, came to the conclusion that matter investigated by
F
complaint by the same complainant against the same accused,
subsequent to the registration of a case, is prohibited under
the Cr.P.C. because an investigation in this regard would have
already started and further the complaint against the same
accused will amount to an improvement on the facts mentioned
in the original complaint, hence, will be prohibited under section
162 Cr.P.C. However, this rule will not apply to a counter claim
by the accused in the first complaint or on his behalf alleging a
different version of the said incident. Thus, in case, there are
rival versions in respect of the same episode, the Investigating
Agency would take the same on two different FIRs and
investigation can be carried under both of them by the same
investigating agency and thus, filing an FIR pertaining to a
counter claim in respect of the same incident having a
different version of events, is permissible.
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“The second FIR, in our opinion, would be maintainable not
only because there were different versions but when new
discovery is made on factual foundations. Discoveries
may be made by the police authorities at a subsequent
stage. Discovery about a larger conspiracy can also
surface in another proceeding, as for example, in a case
of this nature. If the police authorities did not make a fair
investigation and left out conspiracy aspect of the matter
from the purview of its investigation, in our opinion, as and
when the same surfaced, it was open to the State and/or
the High Court to direct investigation in respect of an
offence which is distinct and separate from the one for
which the FIR had already been lodged.” (Emphasis
added).
17. Thus, in view of the above, the law on the subject
emerges
to the effect that an FIR under Section 154 Cr.P.C.
E
is a very important document. It is the first information of a
cognizable offence recorded by the Officer In-Charge of the
Police Station. It sets the machinery of criminal law in motion
and marks the commencement of the investigation which ends
F with the formation of an opinion under Section 169 or 170
Cr.P.C., as the case may be, and forwarding of a police report
under Section 173 Cr.P.C. Thus, it is quite possible that more
than one piece of information be given to the Police Officer Incharge of the Police Station in respect of the same incident
involving one or more than one cognizable offences. In such a
G
case, he need not enter each piece of information in the Diary.
All other information given orally or in writing after the
commencement of the investigation into the facts mentioned in
the First Information Report will be statements falling under
Section 162 Cr.P.C.
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BABUBHAI v. STATE OF GUJARAT & ORS. ETC.
[DR. B.S. CHAUHAN, J.]
669
In such a case the court has to examine the facts and
circumstances giving rise to both the FIRs and the test of
sameness is to be applied to find out whether both the FIRs
relate to the same incident in respect of the same occurrence
or are in regard to the incidents which are two or more parts
of the same transaction. If the answer is affirmative, the second
FIR is liable to be quashed. However, in case, the contrary is
proved, where the version in the second FIR is different and
they are in respect of the two different incidents/crimes, the
second FIR is permissible. In case in respect of the same
incident the accused in the first FIR comes forward with a
different version or counter claim, investigation on both the FIRs
has to be conducted.
18. The instant case is required to be examined in the light
of the aforesaid settled legal propositions. If the two FIRs are
read together, it becomes clear that the incident started in the
morning as per both the FIRs. C.R. No.I-154/2008, lodged by
Mr. M.N. Pandya, Sub Inspector of Police stated that he
reached the place of occurrence after receiving the information
from the police station and found that mob had already
dispersed. The case of the prosecution is that when the police
reached the place of occurrence of the first incident, the mob
had already dispersed, could not be correct for the reason that
some of the witnesses have stated that the clash was going
on when the police arrived and police resorted to force to
disperse the mob. In fact, it was the police who summoned the
ambulances which took the injured persons to hospitals. In the
first incident as per the said FIR the place of occurrence had
been village Dhedhal near the pond. In the pond, the damaged
tractor, motor cycle and chhakda were found. Mr. M.N. Pandya
called the extra police force and went inside the village. He
found 2000-4000 persons and witnessed a free fight between
them. The Koli Patels had surrounded some of the houses of
the Bharwads. Some persons had been locked inside their
houses and they had also put their houses at fire. The superior
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[2010] 10 S.C.R.
A officers also came there. Police has used force to disperse the
mob in the said incident and there were heavy casualties and
there was loss of lives also. If we examine minutely the FIR in
C.R. No.I-155/2008, the incident also occurred near the pond
in the village Dhedhal. The damaged tractor, motor cycle and
B chhakda were there in the pond. One person Ajitbhai
Prahladbhai was killed in the incident. Babubhai Popatbhai Koli
Patel also got injured. While comparing both the FIRs there is
no doubt that both the incidents had occurred at the same place
in close proximity of time, therefore, they are two parts of the
same transaction. More so, the death of Ajitbhai Prahladbhai
C
has been mentioned in both the FIRs. From the report for
deletion of Section 302 IPC, it is apparent that it is not the case
of the Investigating Officer that the death of Ajitbhai Prahladbhai
had not occurred during the course of the incident in connection
with which C.R. No.I-154 of 2008 came to be registered.
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19. It is also evident that houses of the Bharwads were
inside the village in contiguous areas and the offence had
spread over the entire area as is evident from the panchnama
of the scene of offence drawn in C.R. No.I-155 of 2008 as well
E as from the contents of the said FIR. Same situation regarding
the place of occurrence appears from the panchnama of the
scene of incident in C.R. No. I-154/2008. Panchnama of the
scene of incident of C.R. No.I-154/2008 includes the scene of
occurrence of C.R. No.I-155/2008 which makes it clear that both
F the FIRs pertain to the two crimes committed in the same
transaction. The scene of offence panchnamas establish clearly
that the incidents in both the cases could not be distinct and
independent of each other. In fact, it is nobody’s case that
incident relating to CR No.I-155/08 occurred at Dhedhal Chokdi
G (Cross-Roads).
20. In view of the above, we are of the considered opinion
that the High Court reached the correct conclusion and second
FIR C.R. I-155/2008 was liable to be quashed.
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BABUBHAI v. STATE OF GUJARAT & ORS. ETC.
[DR. B.S. CHAUHAN, J.]
671
Tainted Investigation
21. In some of the applications before the High Court,
allegations of bias malafide against the investigating agency
had been made submitting that investigation had not been fair
and impartial and therefore, it stood vitiated because of material
irregularities and therefore, investigation be handed over to
some independent agency like CBI. The Court examined the
grievance of those applicants and recorded the following
findings:-
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(i)
In spite of the fact that serious allegations had been C
made as regards the manner in which investigation had
been made in the affidavit in reply, such allegations had
not been denied;
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(ii) The investigation has been one-sided. Statements D
of witnesses belonging to only one community had been
recorded, and the members of the other community had
been totally excluded from recording their statements,
indicating bias in favour of one community and against the
other;
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(iii) In CR No.I-154/2008 several Koli Patels had been
arraigned as accused, many of them are not named by any
witness in their statements annexed with the charge-sheet.
Thus, it was not clear as to how the said persons have
been implicated in the offences in question. Such accused
would certainly go scot-free, which clearly indicates the
nature of investigation which has been carried out in
respect of one of the FIRs;
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(iv) Not a single witness named in the charge sheet G
belongs to the Bharwad community and despite the fact
that statements of witnesses reveal that persons belonging
to both the communities have sustained injures, in the
charge sheet, as well as the statements placed on record
by the prosecution, not a single person belonging to the H
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[2010] 10 S.C.R.
Bharwad community is shown to have sustained injuries;
(v) Though the witnesses refer to names of the
Bharwads whose houses were set on fire after shutting
them in, none of the persons belonging to the Bharwad
community are cited as witnesses nor are their statements
recorded. This is the nature of the investigation carried out
in respect of C.R.No. I-154 of 2008;
(vi) When in respect of the second FIR pertaining to the
alleged first incident, the informant was in a position to
name all the accused belonging to the Bharwad community
along with their father’s name and surname, it is surprising
that in the investigation carried out by the Investigating
Officer no statement of any person belonging to the
Bharwad community naming any person belonging to the
Koli Patel community as having taken part in the incident
has been recorded;
(vii) The offence has been bifurcated into two parts and
one serious in nature and the other a much diluted one.
Even in the diluted offence, some persons belonging to one
community have been named as accused though no
material has been collected to connect most of them with
the offence in question. There is nothing to indicate as to
how the said names came to be revealed. All the accused
belonging to the same community, i.e., Koli Patels have
been shown to be absconding accused in the chargesheet filed against some of the accused belonging to the
Bharwad community despite the fact that they are shown
as witnesses in another FIR and their statements had
been recorded by the Investigating Officer;
(viii) Accused of one case have been shown by the
prosecution in the charge sheet as absconding accused
but they had been attending court proceedings in the
company of the Investigating Officer in another case;
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BABUBHAI v. STATE OF GUJARAT & ORS. ETC.
[DR. B.S. CHAUHAN, J.]
673
(ix) There is over-action in relation to one FIR and complete
inaction in so far as the another FIR is concerned. The
resultant effect of the poor investigation carried out in
connection with one FIR would be that all the accused of
the said FIR would be acquitted and only the accused of
another FIR which belongs to one community would have
to face the prosecution;
(x) In such a fact-situation, persons who would otherwise
be co-accused, would be witness against them in the case
arising out of the another FIR which would cause immense
prejudice to them;
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23. The High Court, in view of the fact that there has not
been a fair investigation, transferred the case to State CBCID,
B
however, it issued the following directions:
Thus, it is evident from the above that not only investigation in
respect of both the FIRs had not been fair and has caused
serious prejudice to one party but even before the High Court
conduct of the party and investigating agency has not been fair.
22. None of the learned counsel appearing for the parties
“The investigation in respect of the first information report
registered vide Bavla Police Station I-C.R. No.154 of 2008
is transferred to the State CID Crime Branch. Both the
Investigating Officers of the aforesaid FIRs shall hand over
the investigation papers to the new investigating agency.
The Investigating Officer who is entrusted with the
investigation shall carry out further investigation in Bavla
Police Station I-C.R. No.154 of 2008 as it stood earlier
prior to the report for deletion of section 302 IPC. It is
clarified that quashing of the first information report
registered vide Bavla Police Station I-C.R. No.155 of 2008
does not mean that the accused in respect of the said FIR
shall stand discharged of the offences. They shall now face
the said charges in the first information report registered
vide Bavla Police Station I-C.R. No.154 of 2008. The
accused who are arrested in connection with Bavla Police
Station I-C.R. No.155 of 2008 shall stand arrested in
connection with Bavla Police Station I-C.R. No.154 of
2008.”
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24. We fail to understand that if the High Court has
quashed the FIR in C.R.No. I-155/2008, how the charge sheet,
which was filed after investigation of allegations made therein,
could survive and be directed to be read in another case and
G other consequential orders be also read in another case.
On appreciation/consideration of the material available on
record, the High Court recorded the aforesaid findings of fact
and came to the following conclusion:
“The manner in which the investigation has been carried
out as well as the manner in which these cases have been
conducted before this Court, clearly indicate that the
investigation is not fair and impartial and as such the
investigating agency cannot be permitted to continue.”
[2010] 10 S.C.R.
A has raised any doubt about the correctness of those findings,
rather all of them have fairly conceded that investigation was
not conducted properly.
(xi) Deletion of offence under section 302 IPC from the FIR
CR No.I-154/2008 was totally unwarranted; and
(xii) Charge-sheet against same set of 12 persons had
been filed in relation to both the FIRs. However, there was
no evidence against the said persons in connection with
some of the offences and the prosecution was ready and
preparing to get them discharged under section 169
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SUPREME COURT REPORTS
Further in case the High Court came to the conclusion that
investigation was totally biased, unfair and tainted, the
investigation had to be held to have stood vitiated and as a
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BABUBHAI v. STATE OF GUJARAT & ORS. ETC.
[DR. B.S. CHAUHAN, J.]
675
consequence thereof charge sheets filed in both the cases
could have become inconsequential.
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25. The investigation into a criminal offence must be free
from objectionable features or infirmities which may legitimately
lead to a grievance on the part of the accused that investigation B
was unfair and carried out with an ulterior motive. It is also the
duty of the Investigating Officer to conduct the investigation
avoiding any kind of mischief and harassment to any of the
accused. The Investigating Officer should be fair and conscious
so as to rule out any possibility of fabrication of evidence and
C
his impartial conduct must dispel any suspicion as to its
genuineness. The Investigating Officer “is not to bolster up a
prosecution case with such evidence as may enable the court
to record conviction but to bring out the real unvarnished truth”.
(Vide R.P. Kapur Vs. State of Punjab AIR 1960 SC 866;
Jamuna Chaudhary & Ors. Vs. State of Bihar AIR 1974 SC D
1822; and Mahmood Vs. State of U.P. AIR 1976 SC 69).
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26. In State of Bihar Vs. P.P. Sharma AIR 1991 SC 1260,
this Court has held as under:
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“Investigation is a delicate painstaking and dextrous
process. Ethical conduct is absolutely essential for
investigative professionalism. ….Therefore, before
countenancing such allegations of mala fides or bias it
is salutary and an onerous duty and responsibility of the
F
court, not only to insist upon making specific and definite
allegations of personal animosity against the
Investigating Officer at the start of the investigation but
also must insist to establish and prove them from the facts
and circumstances to the satisfaction of the court.
….Malice in law could be inferred from doing of wrongful G
act intentionally without any just cause or excuse or
without there being reasonable relation to the purpose of
the exercise of statutory power….The word ‘personal
liberty’ (under Article 21 of the Constitution) is of the widest
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[2010] 10 S.C.R.
amplitude covering variety of rights which goes to
constitute personal liberty of a citizen. Its deprivation
shall be only as per procedure prescribed in the Code
and the Evidence Act conformable to the mandate of the
Supreme Law, the Constitution. The investigator must be
alive to the mandate of Article 21 and is not empowered
to trample upon the personal liberty arbitrarily….. An
Investigating Officer who is not sensitive to the
constitutional mandates may be prone to trample upon
the personal liberty of a person when he is actuated by
mala fides.”
27. In Navinchandra N. Majithia Vs. State of Meghalaya
& Ors. AIR 2000 SC 3275, this Court considered a large
number of its earlier judgments to the effect that investigating
agencies are guardians of the liberty of innocent citizens.
Therefore, a heavy responsibility devolves on them of seeing
that innocent persons are not charged on an irresponsible and
false implication. There cannot be any kind of interference or
influence on the investigating agency and no one should be put
through the harassment of a criminal trial unless there are good
and substantial reasons for holding it. Cr.P.C. does not
recognize private investigating agency, though there is no bar
for any person to hire a private agency and get the matter
investigated at his own risk and cost. But such an investigation
cannot be treated as investigation made under law, nor can the
evidence collected in such private investigation be presented
by Public Prosecutor in any criminal trial. Therefore, the court
emphasised on independence of the investigating agency and
deprecated any kind of interference observing as under:
“The above discussion was made for emphasising the
need for official investigation to be totally extricated from
any extraneous influence….. All complaints shall be
investigated with equal alacrity and with equal fairness
irrespective of the financial capacity of the person lodging
BABUBHAI v. STATE OF GUJARAT & ORS. ETC.
[DR. B.S. CHAUHAN, J.]
677
the complaint. ….A vitiated investigation is the precursor
for miscarriage of criminal justice.”
678
A
A
29. In Manu Sharma Vs. State (NCT of Delhi) (2010) 6
SCC 1, one of us (Hon’ble P. Sathasivam, J.) has elaborately
dealt with the requirement of fair investigation observing as
under:“…… The criminal justice administration system in India
places human rights and dignity for human life at a much
higher pedestal. In our jurisprudence an accused is
presumed to be innocent till proved guilty, the alleged
accused is entitled to fairness and true investigation and
fair trial and the prosecution is expected to play balanced
role in the trial of a crime. The investigation should be
judicious, fair, transparent and expeditious to ensure
compliance with the basic rule of law. These are the
fundamental canons of our criminal jurisprudence and they
are quite in conformity with the constitutional mandate
contained in Articles 20 and 21 of the Constitution of
India….
It is not only the responsibility of the investigating agency
but as well as that of the courts to ensure that investigation
is fair and does not in any way hamper the freedom of an
individual except in accordance with law. Equally
enforceable canon of the criminal law is that the high
responsibility lies upon the investigating agency not to
conduct an investigation in tainted and unfair manner. The
investigation should not prima facie be indicative of a
biased mind and every effort should be made to bring the
[2010] 10 S.C.R.
guilty to law as nobody stands above law dehors his
position and influence in the society….
The Court is not to accept the report which is contra legem
(sic) to conduct judicious and fair investigation….
(Emphasis added)
28. In Nirmal Singh Kahlon (supra), this Court held that a
concept of fair investigation and fair trial are concomitant to
preservation of the fundamental right of the accused under
Article 21 of the Constitution of India.
SUPREME COURT REPORTS
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B
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E
The investigation should be conducted in a manner so as
to draw a just balance between citizen’s right under
Articles 19 and 21 and expansive power of the police to
make investigation…..”.
30. This Court in K. Chandrasekhar Vs. State of Kerala
& Ors. (1998) 5 SCC 223; Ramachandran Vs. R.
Udhayakumar & Ors. (2008) 5 SCC 413; and Nirmal Singh
Kahlon (supra); Mithabhai Pashabhai Patel & Ors. Vs. State
of Gujarat (2009) 6 SCC 332; and Kishan Lal Vs. Dharmendra
D Bafna (2009) 7 SCC 685 has emphasised that where the court
comes to the conclusion that there was a serious irregularity in
the investigation that had taken place, the court may direct a
further investigation under Section 173(8) Cr.P.C., even
transferring the investigation to an independent agency, rather
than directing a re-investigation. “Direction of a re-investigation,
E
however, being forbidden in law, no superior court would
ordinarily issue such a direction.”
F
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31. Unless an extra ordinary case of gross abuse of power
is made out by those in charge of the investigation, the court
should be quite loathe to interfere with the investigation, a field
of activity reserved for the police and the executive. Thus, in
case of a mala fide exercise of power by a police officer the
court may interfere. (vide: S.N. Sharma Vs. Bipen Kumar
Tiwari & Ors. AIR 1970 SC 786).
32. In Kashmeri Devi Vs. Delhi Administration & Anr. AIR
1988 SC 1323, this Court held that where the investigation has
not been conducted in a proper and objective manner it may
be necessary for the court to order for fresh investigation with
the help of an independent agency for the ends of justice so
BABUBHAI v. STATE OF GUJARAT & ORS. ETC.
[DR. B.S. CHAUHAN, J.]
679
that real truth may be revealed. In the said case, this court
transferred the investigation to the CBI, after coming to the
conclusion that investigation conducted earlier was not fair.
33. The above referred to judgments of this Court make it
clear that scheme of investigation, particularly, Section 173(8)
Cr.P.C. provides for further investigation and not of reinvestigation. Therefore, if the Court, comes to the conclusion
that the investigation has been done in a manner with an object
of helping a party, the court may direct for further investigation
and ordinarily not for re-investigation.
The expression ordinarily means normally and it is used
where there can be an exception. It means in the large majority
of cases but not invariably. “Ordinarily” excludes “extra-ordinary”
or “special circumstances”. (vide: Kailash Chandra Vs. Union
of India AIR 1961 SC 1346; Eicher Tractors Ltd., Haryana Vs.
Commissioner of Customs, Bombay AIR 2001 SC 196; and
State of A.P. Vs. Sarma Rao & Ors. AIR 2007 SC 137).
Thus, it is evident that in exceptional circumstances, the
court in order to prevent the miscarriage of criminal justice, if
considers necessary, it may direct for investigation de novo
wherein the case presents exceptional circumstances.
34. In the instant case, admittedly, the High Court has given
detailed reasons for coming to the conclusion that the
investigation has been totally one-sided, biased and mala fide.
One party has been favoured by the investigating agency. The
natural corollary to this finding is that the other party has been
harassed in an unwarranted manner. Thus, the cause of the
other party has been prejudiced. The charge sheets filed by the
investigating agency in both the cases are against the same
set of accused. A charge sheet is the outcome of an
investigation. If the investigation has not been conducted fairly,
we are of the view that such vitiated investigation cannot give
rise to a valid charge sheet. Such investigation would ultimately
prove to be precursor of miscarriage of criminal justice. In such
680
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SUPREME COURT REPORTS
[2010] 10 S.C.R.
A a case the court would simply try to decipher the truth only on
the basis of guess or conjunctures as the whole truth would not
come before it. It will be difficult for the court to determine how
the incident took place wherein three persons died and so
many persons including the complainant and accused got
B injured. Not only the fair trial but fair investigation is also part
of constitutional rights guaranteed under Articles 20 and 21 of
the Constitution of India. Therefore, investigation must be fair,
transparent and judicious as it is the minimum requirement of
rule of law. Investigating agency cannot be permitted to conduct
C an investigation in tainted and biased manner. Where noninterference of the court would ultimately result in failure of
justice, the court must interfere.
In such a situation, it may be in the interest of justice that
independent agency chosen by the High Court makes a fresh
D investigation. Thus, the order of the High Court requires
modification to the extent that the charge sheets in both the
cases and any order consequent thereto stand quashed. In
case, any of the accused could not get bail because of the
pendency of these appeals before this Court, it shall be open
E to him to apply for bail or any other relief before the appropriate
forum. In case, such an application is filed, we request the
appropriate court to decide the same expeditiously and in
accordance with law. It is further clarified that those persons who
were arrested in connection with CR No. I-155/08 would not
F stand arrested in connection with CR No. I-154/08. However,
if during the fresh investigation, any incriminating material
against any person is discovered, the Investigating Authority
may proceed in accordance with law. It shall be open to the
accused to approach the appropriate forum for any interim relief
G as per law.
35. In view of the above, the appeals are disposed of with
the modification of the order of the High Court to the extent
explained hereinabove.
H
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Appeals disposed of.
682
[2010] 10 S.C.R. 681A.M. BHARWAD AND OTHERS
v.
STATE OF GUJARAT AND OTHERS
(Criminal Appeal No. 1585 etc.)
AUGUST 26, 2010
A Lovkumar, Nupur, Sushil Kumar Jain, Puneet Jain, Rohini Musa,
Abhishek Gupta, Zafar I., Anandh Kannan, P.K. Dey, Anirudh
Sharma, A.K. Sharma, V.K. Biju, D.R. Bhatt, D.K. Garg, Keshav
C. Thakur for the appearing parties.
B
B
C
Investigation – Re-investigation and further investigation
– Propriety of charge-sheet, if investigation held to be unfair
and vitiated – Held: The issues elaborately decided in
Babubhai’s case*.
D
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1585 of 2010.
WITH
E
*.
F
G
(2010) 10 SCR 651.
681
2. All these matters have been filed by the persons
aggrieved
by the Judgment and order of the High Court of
C
Gujarat dated 22.12.2009 in connected cases. The detailed
judgment and order has been passed today i.e. on 26.8.2010
in Criminal Appeal No. 1599 of 2010 (arising out of SLP (Crl.)
No 2077 of 2010 – Babubhai vs. State of Gujarat & Ors.), and
D Criminal Appeal Nos. 1600-1605 of 2010 (arising out of SLP
(Crl.) Nos.3235-3240 of 2010-State of Gujarat & Ors. vs.
Ganeshbhai Jakshibhai Bharwad & Ors.).
3. The issues raised in all these matters have been dealt
with elaborately while deciding the aforesaid appeals. Thus, all
E these appeals stand disposed of in terms of the said Judgment
and order. The parties herein shall be entitled to the relief, if
any, in accordance with the said Judgment.
R.P.
Crl. A. Nos. 1586, 1587, 1588, 1589, 1590, 1591, 1592, 1593,
1594, 1595-97, 1598 of 2010.
U.U. Lalit, P.S. Narsimha, R.K. Abichandani, C.A.
Sundram, Tushar Mehta, AAG. Ankur Chawla, Rahul Pratap,
Jayant Mohan (for COAC), Vimal Chandra S. Dave, Laxmi
Abichandani, Sunil Patel, Hemantika Wahi, Meensha
The following of the Court was delivered
DR. B.S. CHAUHAN, J. 1. Leave granted in all the
Special Leave Petitions.
FIR – Two FIRs – Investigation into – Permissibility –
Held: The issue elaborately decided in Babubhai’s case*.
From the Judgment & Order dated 22.12.2009 of the
High Court of Gujarat at Ahmedabad in Criminal Misc.
Application No. 8361 of 2009.
[2010] 10 S.C.R.
A
[P. SATHASIVAM AND B.S. CHAUHAN, JJ.]
*Babubhai v. State of Gujarat and Ors. Judgment dated
26.8.2010, decided by Supreme Court.
SUPREME COURT REPORTS
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Appeals disposed of.
684
[2010] 10 S.C.R. 683
STATE OF MAHARASHTRA & ORS.
v.
ARUN GULAB GAWALI & ORS.
(Criminal Appeal No. 590 of 2007)
AUGUST 27, 2010
A
B
[P. SATHASIVAM AND DR. B.S. CHAUHAN, JJ.]
Constitution of India, 1950 – Article 227 – Petition under
– For quashing of criminal proceedings initiated against
accused – By the complainant as well as the accused –
Complainant alleging that the police forced him to lodge the
complaint – Criminal proceedings quashed by High Court –
On appeal, held: The power of judicial review and the inherent
powers of court are to prevent miscarriage of justice and for
correcting some grave errors and to ensure that stream of
administration of justice remains clean and pure – The court,
while exercising inherent power, has to act cautiously before
proceeding to quash a prosecution – On facts, High Court was
not right in quashing the criminal cases on the ground that
due to lack of support of the complainant, the trial would be a
futile exercise – Such case needed further investigation –
However, the circumstances of the instant case suggest that
the allegation of complainant against the police was correct
– Thus, it was a fit case to quash the criminal proceedings –
Code of Criminal Procedure, 1973 – s. 482.
C
D
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F
One of the respondents filed a complaint against
respondent No. 1 alleging extortion. Thereafter, the
respondent-complainant filed an application before
Metropolitan Magistrate, stating that he did not want to
proceed with the complaint. The court rejected the said
application. Thereafter the complainant and his wife filed
a writ petition before the High Court alleging harassment
by the police and seeking direction for removal of police
G
683
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SUPREME COURT REPORTS
[2010] 10 S.C.R.
A protection and asking for a judicial inquiry against the
police, alleging that the complainant was forced by the
police to lodge the complaint. The High Court disposed
of the writ petition. The complainant then filed another
writ petition before the High Court for quashing of the
B criminal case against respondent No. 1. Respondent No.
1 also filed writ petitions seeking quashing of criminal
cases against him. The High Court allowed the writ
petitions and quashed the criminal cases against
respondent No.1. Therefore, the instant appeal was filed.
C
Dismissing the appeal, the Court
HELD: 1.1 The power of quashing criminal
proceedings has to be exercised very sparingly and with
circumspection and that too in the rarest of rare cases
D and the court cannot be justified in embarking upon an
enquiry as to the reliability or genuineness or otherwise
of allegations made in the F.I.R./Complaint, unless the
allegations are so patently absurd and inherently
improbable so that no prudent person can ever reach
E such a conclusion. The extraordinary and inherent
powers of the court do not confer an arbitrary jurisdiction
on the court to act according to its whims or caprice.
However, the court, under its inherent powers, can
neither intervene at an uncalled for stage nor can it ‘softF pedal the course of justice’ at a crucial stage of
investigation/ proceedings. [Para 12] [693-G-H; 694-A]
1.2 The provisions of Articles 226, 227 of the
Constitution of India and Section 482 Cr.P.C. are a device
to advance justice and not to frustrate it. The power of
G judicial review is discretionary, however, it must be
exercised to prevent the miscarriage of justice and for
correcting some grave errors and to ensure that stream
of administration of justice remains clean and pure.
However, there are no limits of power of the court, but the
H
STATE OF MAHARASHTRA & ORS. v. ARUN GULAB 685
GAWALI & ORS.
more the power, the more due care and caution is to be
exercised in invoking these powers. [Para 12] [694-B-C]
R.P. Kapur vs. State of Punjab AIR 1960 SC 866; State
of Haryana and Ors. vs. Ch. Bhajan Lal and Ors. AIR 1992
SC 604; State of Karnataka vs. L.Muniswamy and Ors. AIR
1977 SC 1489 – relied on.
686
A
A
B
B
State of West Bengal and Ors. vs. Swapan Kumar Guha
and Ors. AIR1982 SC 949; M/s. Pepsi Foods Ltd. and Anr.
Vs. Special Judicial Magistrate and Ors. AIR 1998 SC 128;
G. Sagar Suri and Anr. vs. State of U.P. and Ors. AIR 2000 C
SC 754; Ajay Mitra vs. State of M.P. and Ors. AIR 2003 SC
1069 – referred to.
1.3 The inherent power is to be exercised ex debito
justitiae, to do real and substantial justice, for D
administration of which alone courts exist. Wherever any
attempt is made to abuse that authority so as to produce
injustice, the court has power to prevent the abuse. It is,
however, not necessary that at this stage there should
be a meticulous analysis of the case before the trial to
E
find out whether the case ends in conviction or acquittal.
[Para 16] [695-H; 696-A]
State of Orissa and Anr. vs. Saroj Kumar Sahoo (2005)
13 SCC 540; B.S. Joshi and Ors. vs. State of Haryana and
Anr. AIR 2003 SC1386 – relied on.
F
Mrs. Dhanalakshmi vs. R. Prasanna Kumar and Ors. AIR
1990 SC 494; Ganesh Narayan Hegde vs. S. Bangarappa
and Ors. (1995) 4 SCC 41; and M/s Zandu Pharmaceutical
Works Ltd. and Ors. vs. Md. Sharaful Haque and Ors. AIR G
2005 SC 9 – referred to.
1.4 The superior courts have been given inherent
powers to prevent the abuse of the process of court;
where the court-finds that the ends of justice may be met
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SUPREME COURT REPORTS
[2010] 10 S.C.R.
by quashing the proceedings, it may quash the
proceedings, as the end of achieving justice is higher
than the end of merely following the law. It is not
necessary for the court to hold a full-fledged inquiry or
to appreciate the evidence, collected by the investigating
agency, if any, to find out whether the case would end in
conviction or acquittal. [Para 24] [698-H; 699-A-B]
1.5 While exercising inherent power, the court has to
act cautiously before proceeding to quash a prosecution
in respect of an offence which hits and affects the society
at large. It should be a case where no other view is
possible nor any further investigation or inquiry is
required. There cannot be a general proposition of law,
so as to fit in as a straitjacket formula for the exercise of
such power. Each case will have to be judged on its own
merit and the facts warranting exercise of such power.
[Para 25] [700-B-D]
1.6 In the instant case, the High Court proceeded on
the perception that as the complainant himself was not
supporting the complaint, he would not support the case
of the prosecution and there would be no chance of
conviction, thus the trial itself would be a futile exercise.
Quashing of FIR/Complaint on such a ground cannot be
held to be justified in law. [Para 25] [699-C-D]
1.7 A claim founded on a denial by the complainant
even before the trial commences coupled with an
allegation that the police had compelled the lodging of a
false FIR, is a matter which requires further investigation
as the charge is levelled against the police. If the
prosecution is quashed, then neither the trial court nor
the investigating agency has any opportunity to go into
this question, which may require consideration. The
State is the prosecutor and all prosecution is the social
STATE OF MAHARASHTRA & ORS. v. ARUN GULAB 687
GAWALI & ORS.
and legal responsibility of the State. An offence
committed is a crime against a society and not against a
victim alone. The victim under undue pressure or
influence of the accused or under any threat or
compulsion may resile back but that would not absolve
the State from bringing the accused to book, who has
committed an offence and has violated the law of the
land. [Para 25] [699-G-H; 700-A-B]
1.8 Ordinarily, the Court of Session is empowered to
discharge an accused u/s. 227 Cr.P.C. even before
initiating the trial. The accused can, therefore, move the
trial court itself for such a relief and the trial court would
be in a better position to analyse and pass an order as it
is possessed of all the powers and the material to do so.
It is, therefore, not necessary to invoke the jurisdiction u/
s. 482 Cr.P.C. for the quashing of a prosecution in such
a case. The reliance on affidavits by the High Court would
be a weak, hazy and unreliable source for adjudication
on the fate of a trial. The presumption that an accused
would never be convicted on the material available is too
risky a proposition to be accepted readily, particularly in
heinous offences like extortion. [Para 25] [699-D-F]
1.9 More so, the instant case was not a case of civil
nature where there could be a possibility of compromise
or involving an offence which may be compoundable
under Section 320 Cr.P.C. [Para 25] [700-D-E]
Madhavrao Jiwaji Rao Scindia and Anr. vs. Sambhajirao
Chandrojirao Angre and Ors. AIR 1988 SC 709 – held
inapplicable.
688
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SUPREME COURT REPORTS
[2010] 10 S.C.R.
2. If the facts of the instant case are examined in
correct perspective, it is evident that all possible steps
had been taken by the wife of the complainant in a very
close proximity to the date of lodging the complaint. The
complaint was lodged on 8.11.2005 and application was
moved by the wife of the complainant before the Chief
Metropolitan Magistrate for release of the complainant
from police custody or his production before the court
on 9.11.2005. She approached the State Human Rights
Commission on 11.11.2005 and all other steps have also
been taken with due diligence and promptness.
Therefore, it cannot be said that such complaints had
been made by the wife of the complainant under any
threat or that the complainant did not want to support the
case of the prosecution for some other reason. There has
been a persistent stand taken by the complainant and his
wife that the complaint was not made voluntarily and her
husband and other family members had been subjected
to great deal of harassment and persecution by the police
for no fault of theirs. In such a fact-situation, the possibility
that the allegations made by the complainant and his wife
in their complaints/applications/writ petitions may be true,
cannot be ruled out. It was a fit case, where in order to
meet the ends of justice and to prevent the miscarriage
of criminal justice, the inherent powers of the Court to
quash the FIR/complaint could have been exercised.
Thus, the complaint lodged by the complainant against
respondent No.1 was liable to be quashed. [Paras 26 and
27] [701-F-H; 702-A-D]
Case Law Reference:
G
G
State of Bihar and Anr. vs. Shri P.P. Sharma and Anr.
AIR 1991 SC 1260; Alpic Finance Ltd. vs. P. Sadasivan and
Anr. AIR 2001 SC 1226; M.N.Damani vs. S.K. Sinha and Ors.
AIR 2001 SC 2037 – referred to.
H
H
AIR 1982 SC 949
Referred to.
Para 12
AIR 1998 SC 128
Referred to.
Para 12
AIR 2000 SC 754
Referred to.
Para 12
STATE OF MAHARASHTRA & ORS. v. ARUN GULAB 689
GAWALI & ORS.
AIR 2003 SC 1069
Referred to.
Para 12
AIR 1960 SC 866
Relied on.
Para 13
AIR 1992 SC 604
Relied on.
Para 14
AIR 1977 SC 1489
Relied on.
Para 15
AIR 1990 SC 494
Referred to.
Para 16
(1995) 4 SCC 41
`Referred to.
Para 16
AIR 2005 SC 9
Referred to.
Para 16
2005 (13) SCC 540
Relied on.
Para 17
AIR 2003 SC 1386
Relied on.
Para 18
AIR 1988 SC 709
Held inapplicable. Para 19
AIR 1991 SC 1260
Referred to.
Para 21
AIR 2001 SC 1226
Referred to.
Para 22
AIR 2001 SC 2037
Referred to.
Para 23
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 590 of 2007.
From the Judgment & Order dated 27.07.2006 of the High
Court of Judicature at Bombay in Criminal Writ Petition No.
3169 of 2005 with Criminal Writ Petition No. 874 of 2006 and
Criminal Writ Petition No. 878 of 2006.
S.B. Sanyal, Arun R. Pednekar, Sanjay Kharde, Asha G.
Nair, Ravindra Keshavrao Adsure, Makrand D. Adkar, Vijay
Kumar, D.D. Ghadge, S.S. Mahajan, Vishwajit Singh, Braj
Mishra, Aparna Jha, Abhishek Yadav, Vikram for the appearing
parties.
690
A
B
C
D
E
F
G
The Judgment of the Court was delivered by
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SUPREME COURT REPORTS
[2010] 10 S.C.R.
A
DR. B.S. CHAUHAN, J. 1. This appeal has been preferred
against the Judgment and Order dated 27.07.2006 in Criminal
Writ Petition No.3169/2005 with Criminal Writ Petition Nos. 874
and 878 of 2006, passed by the High Court of Judicature at
Bombay, allowing the said petitions filed by the respondents
B and quashing the Criminal Complaint/FIR.
2. Facts and circumstances giving rise to the present
appeal are that Mohd. Qureshi, one of the respondents, lodged
a complaint dated 8.11.2005 with Deputy Commissioner of
Police, CID (Unit III) against the Arun Gulab Gawali gang. The
C
said complaint was forwarded to Agripada Police Station.
Accordingly, CR No. 241/2005 under Sections 384, 386,
506(ii), 120, 34 of Indian Penal Code, 1860 (in short, “IPC”)
was registered against Arun Gulab Gawali, MLA, respondent
herein, and members of his gang, namely, Sunil Gathe,
D Sadanand Panchal, Rajendra Sadvirkar and Sanjay Girkar.
After taking over of the investigation by DCB, CID, Mumbai, CR
No. 135/05 was registered.
3. According to the said complaint, there was a
commercial
transaction in December, 2002, between one Mr.
E
Doshi and Mohd. Qureshi in respect of the purchase of Hotel
Pritam International at Ambernath in partnership and certain
payments had also been made, but there was a dispute
between the parties. An advertisement was issued for sale of
F the hotel, but the said hotel could not be sold for two years and
the differences between them continued. On 15th March, 2005,
the complainant received a telephone call from an unknown
person, who used very vulgar and indecent language and told
the complainant to come to Dagadi Chawl for settlement of the
dispute of Hotel Pritam. Dagadi Chawl is the residential place
G
of respondent, Arun Gulab Gawali, and he also has an office
in that Chawl. The complainant became scared and went to
Dagadi Chawl on 18th March, 2005. On reaching there the
complainant met one person by the name Sanjay Girkar, who
abused him. Sanjay Girkar contacted Mr. Doshi on his mobile
H
STATE OF MAHARASHTRA & ORS. v. ARUN GULAB 691
GAWALI & ORS. [DR. B.S. CHAUHAN, J.]
and spoke with him in vulgar language and asked him to come
to Dagadi Chawl for settlement of the case of Hotel Pritam. The
complainant and Mr. Doshi visited Dagadi Chawl a number of
times along with other persons. The accomplices of Arun Gulab
Gawali gave threats to them and directed them to act according
to their instructions. Due to fear of threats of the members of
the said gang, Mr. Doshi and the complainant agreed to pay
the extortion money. The complainant was instructed to pay a
sum of Rs. 15 lakhs to Shiv Shambhu Trust, which is managed
by Arun Gulab Gawali. The complainant paid the amount of
Rs.15 lakhs to the said Trust under the threat that if this amount
was not paid, then his life would be in danger. The complainant
also learnt that Mr. Doshi had already paid Rs. 25 lakhs to the
said gang under threat. Subsequently, the accomplices of Arun
Gulab Gawali made telephone calls to the complainant to pay
Rs. 3 lakhs more and the said amount was also paid. They also
forced the complainant to sign certain papers.
4. Mohd. Qureshi, the complainant/respondent, filed
application dated 14.11.2005 before the Court of Metropolitan
Magistrate (46th Court), Mazgaon, Mumbai stating that he did
not want to proceed with the complaint. The court rejected the
said application vide order dated 17.11.2005.
5. Mohd. Qureshi and his wife Ayesha Qureshi,
respondents, filed Writ Petition No. 2906/2005 on 29.11.2005,
before the High Court alleging harassment by the police and
seeking the direction of removal of surveillance by police, as
police had been posted with them under the garb of protection,
and asking for the initiation of a judicial inquiry against the police
alleging that Mohd. Qureshi was forced by the police itself to
lodge the complaint dated 8.11.2005 against the Arun Gulab
Gawali gang and also forced to write an application seeking
protection, though they never sought any such protection.
6. The High Court disposed of the said Writ Petition vide
order dated 21.12.2005, recording the statement of the
petitioners’ counsel that police protection had already been
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[2010] 10 S.C.R.
A
A withdrawn and giving liberty to the said petitioners to make their
grievances before the Commissioner of Police, Mumbai. The
Commissioner of Police was directed that in case, such a
complaint is filed, it should be decided expeditiously in
accordance with law.
B
B
C
D
E
F
G
H
7. Mohd. Qureshi filed Criminal Writ Petition No. 874/2006
before the High Court of Bombay for quashing the CR No. 241/
2005. Arun Gulab Gawali also preferred Writ Petition No. 3169/
05 seeking quashing of FIR 241/2005 at Agripada Police
Station, and Writ Petition No. 878/2006 for quashing of CR No.
C 135 of 2005. All the said Writ Petitions were clubbed and heard
together. The appellants herein contested the said Petitions by
filing Counter Affidavits.
8. In the meanwhile, Arun Gulab Gawali was granted
D anticipatory bail by the Sessions Court vide order dated
3.12.2005. The High Court cancelled the anticipatory bail of
Arun Gulab Gawali vide Order dated 21.02.2006 and
remanded the case to the Sessions Court to consider it afresh.
During the pendency of the reconsideration of the said
E application, proceedings under Maharashtra Control of
Organised Crime Act, 1999 (MCOCA) against Arun Gulab
Gawali were initiated vide order dated 14.04.2006.
F
The High Court allowed all the said Writ Petitions quashing
the C.R.No.241/2005, and C.R. No.135/2005. Hence, this
appeal.
9. Sh. Arun R. Pednekar, learned counsel for the
appellants, has submitted that the High Court has committed
a grave error in quashing the FIR/complaint. Mohd. Qureshi,
G respondent, had filed a complaint against the Arun Gulab
Gawali gang on the basis of which a case was registered. If
for certain reasons or under threat by the Arun Gulab Gawali
gang, Mohd. Qureshi did not want to pursue the matter further,
such a course could not be a ground for quashing the
H proceedings. More so, the High Court reached the conclusion
STATE OF MAHARASHTRA & ORS. v. ARUN GULAB 693
GAWALI & ORS. [DR. B.S. CHAUHAN, J.]
that if the proceedings were permitted to continue, there was
no possibility of conviction after conclusion of the trial. The
Court, in exercise of its inherent power, is not competent to take
a decision at the preliminary stage and determine as to whether
there is a possibility of conviction. Thus, the impugned
Judgment and order of the High Court is liable to be set aside.
10. Per contra, Mr. S.B. Sanyal, learned senior counsel for
Respondent Nos. 2 & 3 and Mr. Makarand D. Adkar, learned
counsel for the respondent No.1, have vehemently opposed the
appeal contending that the Court had examined the facts and
taken note of various proceedings initiated by the respondents
in the meantime to the effect that the police officials had been
harassing Mohd. Qureshi and his family and it was the police
who forced the complainant to lodge the complaint against the
Arun Gulab Gawali gang and, he was forced to take police
protection labeling him as a complainant against the Arun Gulab
Gawali gang. Ayesha Qureshi filed the appropriate application
before the Metropolitan Magistrate on 9.11.2005 and
approached the State Human Rights Commission on
11.11.2005 against the atrocities of the police. The High Court
decided the matter after considering all the aspects. The
Judgment and order of the High Court does not warrant any
interference. The appeal lacks merit and is liable to be
dismissed.
11. We have considered the rival submissions made by
learned counsel for the parties and perused the record.
12. The power of quashing criminal proceedings has to be
exercised very sparingly and with circumspection and that too
in the rarest of rare cases and the Court cannot be justified in
embarking upon an enquiry as to the reliability or genuineness
or otherwise of allegations made in the F.I.R./Complaint, unless
the allegations are so patently absurd and inherently improbable
so that no prudent person can ever reach such a conclusion.
The extraordinary and inherent powers of the Court do not
confer an arbitrary jurisdiction on the Court to act according to
694
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[2010] 10 S.C.R.
A its whims or caprice. However, the Court, under its inherent
powers, can neither intervene at an uncalled for stage nor it can
‘soft-pedal the course of justice’ at a crucial stage of
investigation/ proceedings. The provisions of Articles 226, 227
of the Constitution of India and Section 482 of the Code of
B Criminal Procedure, 1973 (hereinafter called as ‘Cr.P.C.’) are
a device to advance justice and not to frustrate it. The power
of judicial review is discretionary, however, it must be exercised
to prevent the miscarriage of justice and for correcting some
grave errors and to ensure that stream of administration of
C justice remains clean and pure. However, there are no limits
of power of the Court, but the more the power, the more due
care and caution is to be exercised in invoking these powers.
(Vide State of West Bengal & Ors. Vs. Swapan Kumar Guha
& Ors. AIR 1982 SC 949; M/s. Pepsi Foods Ltd. & Anr. Vs.
Special Judicial Magistrate & Ors. AIR 1998 SC 128; G.
D
Sagar Suri & Anr. Vs. State of U.P. & Ors. AIR 2000 SC 754;
and Ajay Mitra Vs. State of M.P. & Ors. AIR 2003 SC 1069).
13. In R.P. Kapur Vs. State of Punjab AIR 1960 SC 866,
this Court laid down the following principles :-
E
E
(I) Where institution/continuance of criminal proceedings
against an accused may amount to the abuse of the
process of the court or that the quashing of the impugned
proceedings would secure the ends of justice;
F
G
H
F
G
H
(II) where it manifestly appears that there is a legal bar
against the institution or continuance of the said
proceeding, e.g. want of sanction;
(III) where the allegations in the First Information Report or
the complaint taken at their face value and accepted in their
entirety, do not constitute the offence alleged; and
(IV) where the allegations constitute an offence alleged but
there is either no legal evidence adduced or evidence
adduced clearly or manifestly fails to prove the charge.
STATE OF MAHARASHTRA & ORS. v. ARUN GULAB 695
GAWALI & ORS. [DR. B.S. CHAUHAN, J.]
696
A
A
B
B
“In the exercise of this wholesome power, the High Court C
is entitled to quash a proceeding if it comes to the
conclusion that allowing the proceeding to continue would
be an abuse of the process of the Court or that the ends
of justice require that the proceeding ought to be quashed.
The saving of the High Court’s inherent powers, both in civil D
and criminal matters is designed to achieve a salutary
public purpose which is that a court proceeding ought not
to be permitted to degenerate into a weapon of
harassment or persecution. In a criminal case, the veiled
object behind a lame prosecution, the very nature of the E
material on which the structure of the prosecution rests and
the like would justify the High Court in quashing the
proceeding in the interest of justice. The ends of justice
are higher than the ends of mere law though justice has
got to be administered according to laws made by the F
legislature. The compelling necessity for making these
observations is that without a proper realisation of the
object and purpose of the provision which seeks to save
the inherent powers of the High Court to do justice between
the State and its subjects it would be impossible to
G
appreciate the width and contours of that salient
jurisdiction.” (Emphasis added).
C
14. In State of Haryana & Ors. Vs. Ch. Bhajan Lal & Ors.
AIR 1992 SC 604, this Court laid down the similar guidelines
for exercising the inherent power, giving types of cases where
the Court may exercise its inherent power to quash the criminal
proceedings. However, the types of cases mentioned therein
do not constitute an exhaustive list, rather the cases are merely
illustrative.
15. In State of Karnataka Vs. L.Muniswamy & Ors. AIR
1977 SC 1489, this Court held as under :-
16. The inherent power is to be exercised ex debito
justitiae, to do real and substantial justice, for administration
of which alone Courts exist. Wherever any attempt is made to
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SUPREME COURT REPORTS
[2010] 10 S.C.R.
abuse that authority so as to produce injustice, the Court has
power to prevent the abuse. It is, however, not necessary that
at this stage there should be a meticulous analysis of the case
before the trial to find out whether the case ends in conviction
or acquittal. (Vide Mrs. Dhanalakshmi Vs. R. Prasanna Kumar
& Ors. AIR 1990 SC 494; Ganesh Narayan Hegde Vs. S.
Bangarappa & Ors. (1995) 4 SCC 41; and M/s Zandu
Pharmaceutical Works Ltd. & Ors. Vs. Md. Sharaful Haque
& Ors. AIR 2005 SC 9).
17. In State of Orissa & Anr. Vs. Saroj Kumar Sahoo
(2005) 13 SCC 540, it has been held that probabilities of the
prosecution version can not be analysed at this stage. Likewise
the allegations of mala fides of the informant are of secondary
importance. The relevant passage reads thus:
“It would not be proper for the High Court to analyse the
case of the complainant in the light of all probabilities in
order to determine whether a conviction would be
sustainable and on such premises arrive at a conclusion
that the proceedings are to be quashed. It would be
erroneous to assess the material before it and conclude
that the complaint cannot be proceeded with.” (Emphasis
added).
18. In B.S. Joshi & Ors. Vs. State of Haryana & Anr. AIR
2003 SC 1386, this Court held that inherent power must be
utilised with the sole purpose of preventing the abuse of the
process of the court or to otherwise serve the ends of justice.
In exercise of inherent powers, proper scrutiny of facts and
circumstances of the case concerned are absolutely imperative.
19. In Madhavrao Jiwaji Rao Scindia & Anr. Vs.
Sambhajirao Chandrojirao Angre & Ors. AIR 1988 SC 709,
this court held as under :“The legal position is well-settled that when a prosecution
at the initial stage is asked to be quashed, the test to be
STATE OF MAHARASHTRA & ORS. v. ARUN GULAB 697
GAWALI & ORS. [DR. B.S. CHAUHAN, J.]
applied by the court is as to whether the uncontroverted A
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 B
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 C
consideration the special facts of a case also quash the
proceeding even though it may be at a preliminary stage.”
(Emphasis added).
20. This Court, while reconsidering the Judgment in
Madhavrao Jiwaji Rao Scindia (supra), consistently observed D
that where matters are also of civil nature i.e. matrimonial, family
disputes, etc., the Court may consider “special facts”, “special
features” and quash the criminal proceedings to encourage
genuine settlement of disputes between the parties.
E
21. The said Judgment was reconsidered and explained
by this Court in State of Bihar & Anr. Vs. Shri P.P. Sharma &
Anr. AIR 1991 SC 1260, as under :
“Madhaorao J. Scindhia v. Sambhaji Rao AIR 1988 SC
F
709, also does not help the respondents. In that case the
allegations constituted civil wrong as the trustees created
tenancy of Trust property to favour the third party. A
private complaint was laid for the offence under Section
467 read with Section 34 and Section 120B I.P.C. which
the High Court refused to quash under Section 482. This G
Court allowed the appeal and quashed the proceedings
on the ground that even on its own contentions in the
complaint, it would be a case of breach of trust or a civil
wrong but no ingredients of criminal offences were made
out. On those facts and also due to the relation of the settler, H
698
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SUPREME COURT REPORTS
[2010] 10 S.C.R.
the mother, the appellant and his wife, as the son and
daughter-in-law, this Court interfered and allowed the
appeal………Therefore, the ratio therein is of no
assistance to the facts in this case. It cannot be
considered that this Court laid down as a proposition of
law that in every case the court would examine at the
preliminary stage whether there would be ultimate
chances of conviction on the basis of allegation and
exercise of the power under Section 482 or Article 226 to
quash the proceedings or the charge-sheet.” (Emphasis
added).
22. In Alpic Finance Ltd. Vs. P. Sadasivan & Anr. AIR
2001 SC 1226, this Court explained the ratio of the Judgment
in Madhavrao Jiwaji Rao Scindia (supra), that law laid down
therein would only apply where it is a question of a civil wrong,
which may or may not amount to a criminal offence. Madhavrao
Jiwaji Rao Scindia (supra) was the case involving a trust where
proceedings were initiated by some of the trustees against
other trustees. This Court, after coming to the conclusion, that
the dispute was predominantly civil in nature and that the parties
were willing to compromise, quashed the proceedings.
23. In M.N.Damani Vs. S.K. Sinha & Ors. AIR 2001 SC
2037, this Court again explained the Judgment in Madhavrao
Jiwaji Rao Scindia (supra) in a similar manner.
F
G
H
24. Thus, the judgment in Madhavrao Jiwaji Rao Scindia
(supra) does not lay down a law of universal application. Even
as per the law laid down therein the court can not examine the
facts/evidence etc. in every case to find out as to whether there
is sufficient material on the basis of which the case would end
in conviction. The ratio of the said Judgment is applicable in
limited cases where the Court finds that the dispute involved
therein is predominantly civil in nature and that the parties
should be given a chance to reach a compromise e.g.
matrimonial, property and family disputes etc. etc. The Superior
Courts have been given inherent powers to prevent the abuse
STATE OF MAHARASHTRA & ORS. v. ARUN GULAB 699
GAWALI & ORS. [DR. B.S. CHAUHAN, J.]
of the process of Court where the Court finds that the ends of
justice may be met by quashing the proceedings, it may quash
the proceedings, as the end of achieving justice is higher than
the end of merely following the law. It is not necessary for the
court to hold a full-fledged inquiry or to appreciate the evidence,
collected by the Investigating Agency, if any to find out whether
the case would end in conviction or acquittal.
700
A
B
25. The instant case is required to be examined in the light
of the aforesaid settled legal propositions.
The High Court proceeded on the perception that as the
complainant himself was not supporting the complaint, he would
not support the case of the prosecution and there would be no
chance of conviction, thus the trial itself would be a futile
exercise. Quashing of FIR/Complaint on such a ground cannot
be held to be justified in law. Ordinarily, the Court of Sessions
is empowered to discharge an accused under Section 227
Cr.P.C. even before initiating the trial. The accused can,
therefore, move the Trial Court itself for such a relief and the
Trial Court would be in a better position to analyse and pass
an order as it is possessed of all the powers and the material
to do so. It is, therefore, not necessary to invoke the jurisdiction
under Section 482 Cr.P.C. for the quashing of a prosecution
in such a case. The reliance on affidavits by the High Court
would be a weak, hazy and unreliable source for adjudication
on the fate of a trial. The presumption that an accused would
never be convicted on the material available is too risky a
proposition to be accepted readily, particularly in heinous
offences like extortion.
A claim founded on a denial by the complainant even
before the trial commences coupled with an allegation that the
police had compelled the lodging of a false FIR, is a matter
which requires further investigation as the charge is levelled
against the police. If the prosecution is quashed, then neither
the Trial Court nor the Investigating Agency has any opportunity
to go into this question, which may require consideration. The
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SUPREME COURT REPORTS
[2010] 10 S.C.R.
A State is the prosecutor and all prosecution is the social and
legal responsibility of the State. An offence committed is a
crime against a society and not against a victim alone. The
victim under undue pressure or influence of the accused or
under any threat or compulsion may resile back but that would
B not absolve the State from bringing the accused to book, who
has committed an offence and has violated the law of the land.
Thus, while exercising such power the court has to act
cautiously before proceeding to quash a prosecution in respect
of an offence which hits and affects the society at large. It should
C be a case where no other view is possible nor any investigation
or inquiry is further required. There cannot be a general
proposition of law, so as to fit in as a straitjacket formula for
the exercise of such power. Each case will have to be judged
on its own merit and the facts warranting exercise of such
D power.
More so, it was not a case of civil nature where there could
be a possibility of compromise or involving an offence which
may be compoundable under Section 320 Cr.P.C., where the
E Court could apply the ratio of the case in Madhavrao Jiwaji
Rao Scindia (supra).
Thus, it is a fit case where the impugned Judgment should
be set aside and the case be remitted for deciding afresh. As
the matter is old and we have gone through the entire material
F on record, we have taken this task upon ourselves and
examined whether the FIR could have been quashed on other
grounds. The complainant has submitted before the High Court
as well as before us on oath that he was in police custody/police
protection from 7.11.2005 to 9.11.2005 and he was forced to
G write the complaint against the Arun Gulab Gawali gang on
8.11.2005. Ayesha Qureshi, wife of the complainant, made an
application on 9.11.2005 before the Metropolitan Magistrate
(37th Court) at Esplanade for issuing direction to the police to
release her husband or produce him before the court.
H Immediately after filing of the said application, Mohd. Qureshi
STATE OF MAHARASHTRA & ORS. v. ARUN GULAB 701
GAWALI & ORS. [DR. B.S. CHAUHAN, J.]
stood released. Again on 11.11.2005, Ayesha Qureshi sent a
complaint to the State Human Rights Commission stating that
her husband had been confined in police custody, tortured and
was forcibly made to sign some papers. On 12.11.2005, Mohd.
Qureshi made an application before Additional Chief
Metropolitan Magistrate to drop the proceedings in the FIR/
Complaint. Again on 14.11.2005, Mohd. Qureshi made an
application before Metropolitan Magistrate submitting that he
did not want to proceed with the said complaint. The said
application was rejected by the Metropolitan Magistrate vide
order dated 17.11.2005. Mohd. Qureshi and his wife filed the
writ petition before the High Court on 29.11.2005 for the
withdrawal of the so- called police protection and for a judicial
inquiry on the issue of forcing the complainant to lodge an FIR/
Complaint against the Arun Gulab Gawali gang.
26. The matter was heard by the High Court and disposed
of, issuing a direction that there shall be no police personnel
around Mohd. Qureshi, his wife and other family members and
further directing the Police Commissioner to redress their
grievances in respect of their allegation that Mohd. Qureshi had
been forced by the police to lodge a complaint against the Arun
Gulab Gawali gang. The other writ petitions for quashing of FIR/
complaint were filed by Mohd. Qureshi, his wife Ayesha Qureshi
and Arun Gulab Gawali at a later stage i.e. in April, 2006 and
the said petitions, after contest, had been allowed vide
Judgment and order dated 27.7.2006. If the aforesaid facts are
examined in correct perspective, it is evident that all possible
steps had been taken by Ayesha Qureshi in a very close
proximity to the date of lodging the complaint. At the cost of
repetition, we mention again that the complaint was lodged on
8.11.2005 and application was moved by Ayesha Qureshi
before the Chief Metropolitan Magistrate for release of Mohd.
Qureshi from police custody or his production before the court
on 9.11.2005. She approached the State Human Rights
Commission on 11.11.2005 and all other steps have also been
taken with due diligence and promptness. Therefore, it cannot
702
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[2010] 10 S.C.R.
A be said that such complaints had been made by Ayesha
Qureshi under any threat or that the complainant did not want
to support the case of the prosecution for some other reason.
There has been a persistent stand taken by Ayesha Qureshi
that the complaint was not made voluntarily and her husband
B and other family members had been subjected to great deal
of harassment and persecution by the police for no fault of
theirs. In such a fact-situation, the possibility that the allegations
made by Mohd. Qureshi and Ayesha Qureshi in their
complaints/applications/writ petitions may be true, cannot be
C ruled out. Thus, it was a fit case, where in order to meet the
ends of justice and to prevent the miscarriage of criminal
justice, the inherent powers of the Court to quash the FIR/
complaint could have been exercised.
27. Thus, the complaint dated 8.11.2005 lodged by Mohd.
D Qureshi against the Arun Gulab Gawali gang was liable to be
quashed, though for different reasons, as recorded
hereinabove.
28. In view of the above, the Criminal Appeal stands
dismissed.
K.K.T
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SUPREME COURT REPORTS
Appeal dismissed.
[2010] 10 S.C.R. 703
SHALIMAR CHEMICAL WORKS LTD.
v.
SURENDRA OIL & DAL MILLS (REFINERIES) & ORS.
(Civil Appeal No. 52 of 2005)
AUGUST 27, 2010
704
A
B
[AFTAB ALAM AND R.M. LODHA, JJ.]
Code of Civil Procedure, 1908 – Order 41, Rule 27 –
Additional evidence – Suit for permanent injunction alleging
that the defendant had infringed upon the plaintiff’s registered
trade mark – Plaintiff produced before the court photocopies
of the trade mark registration certificates – Trial court marked
the said photocopies as ‘Exhibits’, however, ultimately
dismissed the suit on the ground that the plaintiff/appellant
did not file the registration certificates in original – Plaintiff
filed appeal alongwith application under Order 41, Rule 27
CPC for admitting the original registration certificates at the
appellate stage as additional evidence – Single judge of the
High Court allowed the application for additional evidence
and, together with it the appeal – Held: The plaintiff had a
legitimate grievance about the way the trial proceeded – The
single judge rightly allowed the plaintiff’s plea for production
of original certificates as additional evidence as that was in
the interest of justice and there was sufficient statutory basis
for that under clause (b) of Order 41, Rule 27 – But the single
judge erred in proceeding simultaneously to allow the appeal
and not giving the defendants /respondents an opportunity to
lead evidence in rebuttal of the documents taken in as
additional evidence – Matter remitted to single judge to
proceed in the appeal, from the stage the original registration
certificates were taken on record as additional evidence, with
liberty to allow the defendants/ respondents to lead rebuttal
evidence or make a limited remand as provided under Order
41, Rule 28 – Trade and Merchandise Marks Act, 1958 – s.31.
703
C
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SUPREME COURT REPORTS
[2010] 10 S.C.R.
A
Appellant-company, engaged in the manufacture and
sale of high grade coconut oil and the registered owners
of the trade mark “Shalimar”, filed suit seeking
permanent injunction against the respondents on the
ground that the latter had infringed upon the appellant’s
B trade mark. In course of the trial, the appellant submitted
before the court, photocopies of the registration
certificates under Trade and Merchandise Marks Act,
1958, which were “marked” by the trial court as Exhibits
“subject to objection of proof and admissibility”. The trial
C court, however, ultimately dismissed the suit on the
ground that the appellant did not file the trade mark
registration certificates in their original.
Aggrieved, the appellant filed an appeal before the
High Court and in the appeal, also filed an application
D under Order 41, Rule 27 CPC for accepting the original
trade mark registration certificates as additional evidence.
A single judge of the High Court allowed the application
for additional evidence and, together with it the appeal,
thereby setting aside the judgment passed by the trial
E court. In intra-court appeal, the division bench of the High
Court held that there was no occasion or justification for
admitting the original trade mark registration certificates
at the appellate stage as additional evidence and restored
the judgment passed by the trial court.
F
The appellant contended before the Supreme Court
that if the trial court was of the view that the photocopies
of the documents in question were not admissible in
evidence, it ought to have returned the copies at the time
of their submission; in that event, the appellant would
G
have substituted them by the original registration
certificates and that would have been the end of the
matter; but once the photocopies submitted by the
appellant were marked as exhibits, it had no means to
know that while pronouncing the judgment, the court
H
SHALIMAR CHEMICAL WORKS LTD. v. SURENDRA 705
OIL & DAL MILLS (REFINERIES)
would keep those documents out of consideration, thus,
causing great prejudice to the appellant. The appellant
submitted that the procedure followed by the trial court
was contrary to the procedure prescribed by Order 13,
Rule 4, CPC, therefore, the single judge of the High Court
was fully justified in accepting the originals of the
documents concerned in evidence.
706
A
B
Allowing the appeal, the Court
HELD:1. Having regard to the manner in which the
proceedings took place before the trial court, the single
judge was not unjustified in taking the originals of the
certificates of registration as additional documents but
the error lay in the fact that the single judge allowed the
application for taking additional evidence and at the same
time proceeded to finally allow the appeal on the basis
of the evidence taken by him on record. [Para 11] [714C-D]
1.2. It is clear that serious mistakes were committed
in the instant case at all stages. The trial court should not
have “marked” as exhibits the Xerox copies of the
certificates of registration of trade mark in face of the
objection raised by the defendants. It should have
declined to take them on record as evidence and left the
plaintiff to support its case by whatever means it
proposed rather than leaving the issue of admissibility of
those copies open and hanging, by marking them as
exhibits subject to objection of proof and admissibility.
The appellant, therefore, had a legitimate grievance in
appeal about the way the trial proceeded. The single
judge rightly allowed the appellant’s plea for production
of the original certificates of registration of trade mark as
additional evidence because that was simply in the
interest of justice and there was sufficient statutory basis
for that under clause (b) of Order 41, Rule 27. But then
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[2010] 10 S.C.R.
A the single judge seriously erred in proceeding
simultaneously to allow the appeal and not giving the
defendants/ respondents an opportunity to lead evidence
in rebuttal of the documents taken in as additional
evidence. The division bench was again wrong in taking
B the view that in the facts of the case, the production of
additional evidence was not permissible under Order 41,
Rule 27. The additional documents produced by the
appellant were liable to be taken on record as provided
under Order 41, Rule 27 (b) in the interest of justice. But
the division bench was right in holding that the way the
C
single judge disposed of the appeal caused serious
prejudice to the defendants/ respondents. In the facts and
circumstances of the case, therefore, the proper course
for the division bench was to set aside the order of the
single judge without disturbing it insofar as it took the
D original certificates of registration produced by the
appellant on record and to remand the matter to give
opportunity to defendants/respondents to produce
evidence in rebuttal if they so desired. The judgment
passed by the division bench is accordingly set aside and
E the matter is remitted to the single judge to proceed in
the appeal from the stage the original registration
certificates were taken on record as additional evidence.
The single judge may allow the defendants/respondents
to lead any rebuttal evidence or make a limited remand
F as provided under Order 41, Rule 28. [Para 12] [715-A-H;
716-A-B]
R.V.E. Venkatachala Gounder vs. Arulmigu
Viswesaraswami & V.P. Temple and Another, 2003 (8) SCC
G 752; K. Venkataramiah vs. A. Seetharama Reddy & Ors.,
1964 (2) SCR 35 and Sangram Singh vs. Election Tribunal,
Kotah, Bhurey Lal Baya, 1955 (2) SCR 1 – relied on.
Case Law Reference:
H
H
2003 (8) SCC 752
relied on
Para 7
SHALIMAR CHEMICAL WORKS LTD. v. SURENDRA 707
OIL & DAL MILLS (REFINERIES)
1964 (2) SCR 35
relied on
Para 8
1955 (2) SCR 1
relied on
Para 9
708
A
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 52
of 2005.
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From the Judgment & Order dated 25.04.2003 of the High
Court of Andra Pradesh at Hyderabad in LPA No. 111 of 2001.
P.P. Rao, S.B. Sanyal, V.V. Ramana, G. Ramakrishna
Prasad, B. Suyodhan, Amarpal, Bharat J. Joshi, Mohd. Wasay
Khan for the Appellant.
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P.S. Narasimha, M. Sriniwas Rao, K. Parameshwar, V.G.
Pragasam for the Respondents.
The Judgment of the Court was delivered by
AFTAB ALAM, J. 1. This is the plaintiff’s appeal arising
from a suit for permanent injunction based on allegations of
infringement of its registered trade mark. The appellant is a
company incorporated and registered under the Companies
Act. The case of the appellant is that from the year 1945 it is
engaged in the business of manufacture and sale of high grade
coconut oil used for cooking as well as manufacturing of various
toilet products under the distinctive trade mark “Shalimar”. The
appellant claims to be the registered owner of the trade mark
“Shalimar” in Class 03 in respect of coconut hair oil and in
Class 29 in respect of all edible oils included in that class.
Alleging that the respondents were marketing their product in
infringement of its registered trade mark, the appellant filed a
suit (OS No.1 of 1995) before the Third Additional Chief Judge,
City Civil Court, Hyderabad, seeking permanent injunction
restraining the defendants from marketing or offering for sale
edible oil products bearing the name “Shalimar” on containers,
labels or wrappers, or using any name identical or deceptively
similar to the appellant’s trade mark.
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[2010] 10 S.C.R.
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2. In course of the trial, the appellant produced before the
court photocopies of registration certificates under Trade and
Merchandise Marks Act, 1958 along with the related
documents attached to the certificates. The photocopies
submitted by the appellant were “marked” by the trial court as
B Exs.A1-A5, “subject to objection of proof and admissibility”. At
the conclusion of the trial, the court dismissed the suit of the
appellant by judgment and order dated September 28, 1998
inter alia holding that the available evidence on record did not
establish the case of the plaintiff and there was no prima facie
C case in favour of the plaintiff nor the balance of convenience
was in favour of the plaintiff. The trial court arrived at its findings
mainly because the appellant did not file the trade mark
registration certificates in their original. In that connection, the
trial court made the following observations:
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“All the above documents i.e. Ex.A1-A5 are marked
subject to objection of proof and admissible (sic
admissibility) and also mention so in the deposition of
PW1. PW1 is his cross-examination has admitted that all
the above documents are xerox copies. He has also
admittedly not filed legal certificate for the same.
Sec.31 of Trade and Merchandise Marks Act, 1958
specifically reads as follows:
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Sec.31(1) “In all legal proceedings relating to a trade mark
registered under the Act, the original registration of the
trade mark and of all subsequent assignments and
transmissions of the trade mark shall be prima facie
evidence of the validity thereof.”
Therefore the plaintiff has to file the original of the
registration or the certified copies thereof. Exs.A1-A4 are
xerox copies. It is well settled law that xerox copies are not
admissible in evidence. Once those documents are not
held admissible, the plaintiff cannot be permitted to rely on
it. These documents Ex.A1-A4 are basic documents of
SHALIMAR CHEMICAL WORKS LTD. v. SURENDRA 709
OIL & DAL MILLS (REFINERIES) [AFTAB ALAM, J.]
Trade Mark and Merchandise Act.”
3. Against the judgment and decree passed by the trial
court, the appellant filed appeal (CCC Appeal No.17 of 1999)
before the Andhra Pradesh High Court. In that appeal, the
appellant also filed an application under Order 41, Rule 27
(CMP No.2972 of 2000) for accepting the originals of the trade
mark registration certificates and the allied documents (of which
Xerox copies were filed before the trial court) as additional
evidence. A learned single judge of the High Court took up the
application for additional evidence along with the hearing of the
appeal. He allowed the application and, together with it the
appeal, setting aside the judgment and decree passed by the
trial court and allowing the appellant’s suit granting decree of
permanent injunction against the defendants/respondents.
4. The respondents filed an intra-court appeal (LPA
No.111 of 2001) against the judgment and decree passed by
the single judge. The division bench of the High Court took the
view that there was no occasion or justification for admitting the
original trade mark registration certificates at the appellate
stage as additional evidence. Referring to the provisions of
Order 41, Rule 27 of the Civil Procedure Code (hereafter
‘CPC’), the division bench made the following observations:
“In three circumstances production of additional evidence
can be allowed by the Appellate Court. Firstly, the Trial
Court had refused to admit evidence which ought to have
been admitted. Secondly the party who wanted to produce
additional evidence had exercised due diligence and such
evidence was not within his knowledge or reach during the
trial of the suit. Thirdly, the additional evidence can be
ordered to be produced if the Court feels that a document
was necessary for pronouncing of the judgment. Neither
of these three conditions were satisfied in this case. The
original documents were all along in possession of the
plaintiff. At no stage the Trial Court had refused to admit
them in evidence. Since the documents were all along in
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[2010] 10 S.C.R.
the possession of the plaintiff, therefore he could not fill up
the lacuna by producing them in the Appellate Court. It may
also be necessary to mention that production of these
documents and allowing of the application under Order 41,
Rule 27 of the Code while disposing of the appeal has also
caused a prejudice to the defendants because when the
cross-examination of P.W.1 which were not admissible in
evidence.”
5. Once the original trade mark registration certificates
were taken off the record of the case, the appellant’s suit was
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bound to be dismissed. And that is how the division bench dealt
with the appeal. It allowed the appeal of the defendantrespondent by judgment dated April 25, 2003 setting aside the
judgment of the learned single judge and restoring the judgment
passed by the trial court.
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6. The appellant has now brought this matter in appeal
before this Court by grant of a special leave.
7. Mr. P.P. Rao, learned senior advocate, appearing for
the appellant assailed both, the procedure adopted by the trial
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court and the view taken by the division bench of the High Court,
on the basis of the provisions of Order 41, Rule 27. Mr. Rao
submitted that if the trial court was of the view that the Xerox
copies of the documents in question were not admissible in
evidence, it ought to have returned the copies at the time of
F their submission. In that event, the appellant would have
substituted them by the original registration certificates and that
would have been the end of the matter. But once the Xerox
copies submitted by the appellant were marked as exhibits, it
had no means to know that while pronouncing the judgment, the
G court would keep those documents out of consideration, thus,
causing great prejudice to the appellant. Mr. Rao submitted that
the provision of Order 13, Rule 4 of CPC provides for every
document admitted in evidence in the suit being endorsed by
or on behalf of the court, and the endorsement signed or
H initialed by the judge amounts to admission of the document
SHALIMAR CHEMICAL WORKS LTD. v. SURENDRA 711
OIL & DAL MILLS (REFINERIES) [AFTAB ALAM, J.]
in evidence. An objection to the admissibility of the document
can be raised before such endorsement is made and the court
is obliged to form its opinion on the question of admissibility
and express the same on which opinion would depend, the
document being endorsed admitted or not admitted in
evidence. In support of the submission he relied upon a decision
of this Court in R.V.E. Venkatachala Gounder vs. Arulmigu
Viswesaraswami & V.P. Temple and Another, 2003 (8) SCC
752 (paragraph 20) where it was observed as follows:
“20…… The objections as to admissibility of documents
in evidence may be classified into two classes:-(i) an
objection that the document which is sought to be proved
is itself inadmissible in evidence; and (ii) where the
objection does not dispute the admissibility of the
document in evidence but is directed towards the mode
of proof alleging the same to be irregular or insufficient. In
the first case, merely because a document has been
marked as ‘an exhibit’, an objection as to its admissibility
is not excluded and is available to be raised even at a later
stage or even in appeal or revision. In the latter case, the
objection should be taken when the evidence is tendered
and once the document has been admitted in evidence
and marked as an exhibit, the objection that it should not
have been admitted in evidence or that the mode adopted
for proving the document is irregular cannot be allowed to
be raised at any stage subsequent to the marking of the
document as an exhibit. The latter proposition is a rule of
fair play. The crucial test is whether an objection, if taken
at the appropriate point of time, would have enabled the
party tendering the evidence to cure the defect and resort
to such mode of proof as would be regular. The omission
to object becomes fatal because by his failure the party
entitled to object allows the party tendering the evidence
to act on an assumption that the opposite party is not
serious about the mode of proof. On the other hand, a
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[2010] 10 S.C.R.
prompt objection does not prejudice the party tendering the
evidence, for two reasons: firstly, it enables the Court to
apply its mind and pronounce its decision on the question
of admissibility then and there; and secondly, in the event
of finding of the Court on the mode of proof sought to be
adopted going against the party tendering the evidence,
the opportunity of seeking indulgence of the Court for
permitting a regular mode or method of proof and thereby
removing the objection raised by the opposite party, is
available to the party leading the evidence. Such practice
and procedure is fair to both the parties. Out of the two
types of objections, referred to hereinabove in the latter
case, failure to raise a prompt and timely objection
amounts to waiver of the necessity for insisting on formal
proof of a document, the document itself which is sought
to be proved being admissible in evidence. In the first
case, acquiescence would be no bar to raising the
objection in a superior Court.”
8. Learned counsel contended that since the procedure
followed by the trial court was contrary to the procedure
E prescribed by Order 13, Rule 4, in appeal against the trial court
judgment, the learned single judge of the High Court was fully
justified in accepting the originals of the documents concerned
in evidence and the division bench was not right in holding that
the originals of the concerned documents were wrongly taken
F in evidence. Mr. Rao submitted that while enumerating the
circumstances in which production of additional evidence may
be allowed, the division bench overlooked the words “or for any
other substantial reason” at the end of clause (b) of rule 27 (1).
He submitted that those words greatly enlarged the scope of
G the provision and were especially relevant for a case like the
one in hand where the plaintiff had suffered great prejudice due
to the incorrect procedure followed by the trial court. In support
of his submission he relied upon the decision of this Court in
K. Venkataramiah vs. A. Seetharama Reddy & Ors., 1964 (2)
H SCR 35 (at page 46).
SHALIMAR CHEMICAL WORKS LTD. v. SURENDRA 713
OIL & DAL MILLS (REFINERIES) [AFTAB ALAM, J.]
“… Apart from this, it is well to remember that the appellate
court has the power to allow additional evidence not only
if it requires such evidence “to enable it to pronounce
judgment” but also for “any other substantial cause”. There
may well be cases where even though the court finds that
it is able to pronounce judgment on the state of the record
as it is, and so, it cannot strictly say that it requires
additional evidence “to enable it to pronounce judgment,”
it still considers that in the interest of justice something
which remains obscure should be filled up so that it can
pronounce its judgment in a more satisfactory manner.
Such a case will be one for allowing additional evidence
“for any other substantial cause” under Rule 27(1)(b) of the
Code. ”
9. Mr. Rao further submitted that the very narrow view of
Order 41, Rule 27 taken by the division bench has only led to
frustrate the ends of justice. In order to lend strength to his
submission, Mr. Rao referred to the illuminating and perennially
relevant passage from the judgment of Vivian Bose, J. in
Sangram Singh vs. Election Tribunal, Kotah, Bhurey Lal
Baya, 1955 (2) SCR 1 (at page 8) :
“Now a code of procedure must be regarded as such. It
is procedure, something designed to facilitate justice and
further its ends: not a penal enactment for punishment and
penalties; not a thing designed to trip people up. Too
technical a construction of sections that leaves no room
for reasonable elasticity of interpretation should therefore
be guarded against (provided always that justice is done
to both sides) lest the very means designed for the
furtherance of justice be used to frustrate it.”
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10. Mr. P.S. Narasimha, learned senior advocate,
appearing for the respondents submitted that in terms of
section 31 of the Trade and Merchandise Marks Act, 1958
original registration certificate of the trade mark was the primary
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SUPREME COURT REPORTS
[2010] 10 S.C.R.
evidence in the case instituted by the appellant and in the
absence of the original registration certificates brought on
record, the only course open to the trial court was to dismiss
the suit, which it rightly did. Mr. Narasimha further pointed out
that the learned single judge after taking the originals on record,
straightaway proceeded to pronounce the final judgment in the
appeal even without allowing the defendants/respondents an
opportunity of rebuttal. The denial of any opportunity of rebuttal
of the additional evidence taken by the appellate court caused
immense prejudice to the defendants/respondents.
11. To an extent Mr. Narasimha is justified in his
submission. Having regard to the manner in which the
proceedings took place before the trial court, the learned single
judge was not unjustified in taking the originals of the certificates
of registration as additional documents but the error lay in the
D fact that the learned single judge allowed the application for
taking additional evidence and at the same time proceeded to
finally allow the appeal on the basis of the evidence taken by
him on record. Alluding to this aspect of the matter, the division
bench made the following criticism:
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“We have seen that the cross-examination of P.W.1 was
very brief and it only related to the fact that the photo stat
were being produced. Any good lawyer would do the same
thing, but had the original documents been produced,
which were admissible in evidence at the time of trial, the
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cross-examination perhaps would have covered these
documents as well. Once the learned single Judge, had
decided to allow the plaintiff to produce the documents,
then it was necessary also to provide an opportunity to the
defendants to further cross-examine the witness who
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produced those documents. But we have seen from the
judgment of the learned single Judge that the application
under Order 41, Rule 27 of the Code was decided along
with the appeals itself.”
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SHALIMAR CHEMICAL WORKS LTD. v. SURENDRA 715
OIL & DAL MILLS (REFINERIES) [AFTAB ALAM, J.]
12. On a careful consideration of the whole matter, we feel
that serious mistakes were committed in the case at all stages.
The trial court should not have “marked” as exhibits the Xerox
copies of the certificates of registration of trade mark in face
of the objection raised by the defendants. It should have
declined to take them on record as evidence and left the plaintiff
to support its case by whatever means it proposed rather than
leaving the issue of admissibility of those copies open and
hanging, by marking them as exhibits subject to objection of
proof and admissibility The appellant, therefore, had a
legitimate grievance in appeal about the way the trial
proceeded. The learned single judge rightly allowed the
appellant’s plea for production of the original certificates of
registration of trade mark as additional evidence because that
was simply in the interest of justice and there was sufficient
statutory basis for that under clause (b) of Order 41, Rule 27.
But then the single judge seriously erred in proceeding
simultaneously to allow the appeal and not giving the
defendants/respondents an opportunity to lead evidence in
rebuttal of the documents taken in as additional evidence. The
division bench was again wrong in taking the view that in the
facts of the case, the production of additional evidence was not
permissible under Order 41, Rule 27. As shown above the
additional documents produced by the appellant were liable to
be taken on record as provided under Order 41, Rule 27 (b) in
the interest of justice. But it was certainly right in holding that
the way the learned single judge disposed of the appeal caused
serious prejudice to the defendants/respondents. In the facts
and circumstances of the case, therefore, the proper course for
the division bench was to set aside the order of the learned
single judge without disturbing it insofar as it took the originals
of the certificates of registration produced by the appellant on
record and to remand the matter to give opportunity to
defendants/respondents to produce evidence in rebuttal if they
so desired. We, accordingly, proceed to do so. The judgment
and order dated April 25, 2003 passed by the division bench
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A is set aside and the matter is remitted to the learned single
judge to proceed in the appeal from the stage the original of
the registration certificates were taken on record as additional
evidence. The learned single judge may allow the defendants/
respondents to lead any rebuttal evidence or make a limited
B remand as provided under Order 41, Rule 28.
13. In the result, the appeal is allowed, as indicated above
but with no order as to costs.
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Appeal allowed.
718
[2010] 10 S.C.R. 717
SMT. AJAMBI (DEAD) BY LRS.
v.
ROSHANBI AND ORS.
(Civil Appeal No.7237 of 2010)
AUGUST 30, 2010
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B
[DR. MUKUNDAKAM SHARMA AND ANIL
R. DAVE, JJ.]
Code of Civil Procedure, 1908 – Or. XXII, r.5 – Suit
seeking decree for partition and separate possession of 7/8th
share in the property in question – Suit decreed – Decree set
aside by First Appellate Court – Meanwhile the original
defendant died and ‘A’ brought on record as his legal heir –
High Court restored the decree of the trial court –‘A’ died,
purportedly leaving behind a Will – Appellant, claiming herself
to be beneficiary under the Will, challenged the decree before
the Supreme Court – Held: Disputed questions of fact having
arisen in view of certain events after delivery of the judgment
by the High Court, such questions of fact are required to be
determined and decided, prior to adjudication on the
respective claims of the parties – Trial court accordingly
directed to take evidence for proper determination of the
factual aspects and to transmit the entire records with the
findings to the Supreme Court for further determination and
orders by the Supreme Court – Mahomedan Law – Will.
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[2010] 10 S.C.R.
The appellant, the daughter of A’s brother-in-law,
claiming herself to be beneficiary under the said Will,
challenged the decree before the Supreme Court.
Per contra, the respondents contended that the Will
B was not probated and was also neither genuine nor valid.
They further contended that under the Mahomedan law,
no claim for inheritance of the property of ‘A’, a deceased
widow, could be claimed through an alleged Will which
is not proved and even if such Will is found to be legal
and valid, such a legatee would be entitled to only 1/3rd
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of the property.
Exercising the power under Order 22, Rule 5, the
Court.
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The respondents filed suit seeking decree for
partition and separate possession of 7/8th share in the
property in question. The suit was decreed. The decree
was set aside by the First Appellate Court. Meanwhile the
original defendant in the suit died, whereupon ‘A’ was
brought on record as his legal heir. The High Court
restored the decree of the trial court. ‘A’ died, purportedly
leaving behind a Will.
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HELD: 1.1. The claim of the appellant is restricted on
the basis of the said purported Will. In case the Will
propounded by the appellant is found to be not genuine
and valid, her entire claim will have to be rejected and the
property in question would revert back to the
E respondents. If, however, the aforesaid Will is found to be
legal and valid, even in that event and as per the
pleadings and the contentions of the respondents, the
appellant may not be entitled to more than 1/3rd of the
said property. These are the events which have arisen
after delivery of the judgment by the High Court.
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Therefore, two issues arise for consideration at this stage,
which are required to be determined and decided prior to
entering into the respective claims of the parties. The first
issue is as to whether the Will propounded by the
appellant allegedly executed on 20.8.2001 and registered
G in the Office of the sub-Registrar on 29.8.2001, is a legal
and valid document in the eyes of law. If the aforesaid
issue is answered in favour of the appellant, the further
question that is to be determined is as to whether the
appellant, on the basis of the aforesaid Will, is entitled only
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AJAMBI (DEAD) BY LRS. v. ROSHANBI AND ORS.
719
to 1/3rd of the said area in terms of the Rules and
Principles of Mahomedan Law. [Paras 24, 25, 26 and 27]
[724-D-E; 725-F-G; 726-H]
1.2. Along with the said issues which need to be
determined and answered, there is another issue which
arises for consideration, which is as to whether the
appellant could claim to be a legal representative. Out of
the said three issues raised herein, in so far as the
question of entitlement of the appellant’s share is
concerned, the same appears to be a question of law as
it forms a part of the principles of Mahomedan Law. But
the other two issues, namely, the status of the appellant
and whether she would claim to be a legal representative
along with the question as to whether the Will
propounded by the appellant is legal and valid and how
far the same could be relied upon, are disputed questions
of fact which are required to be determined by the court
more appropriately by resorting to the provisions of Order
XXII Rule 5 CPC. The said two issues being questions of
fact, the parties must be allowed to lay their evidence in
support of their respective cases. In that view of the
matter it is necessary to issue a direction in the present
case to the aforesaid extent in terms of the provisions of
Order XXII Rule 5 CPC. [Para 28] [728-C-F]
1.3. The trial court is directed to take evidence on the
two issues, namely: whether the appellant could claim to
be a legal representative and whether or not the will
propounded by the appellant, allegedly executed on
20.8.2001 and registered in the Office of the sub- Registrar
on 29.8.2001 is a legal and valid document in the eyes of
law. After completion of the recording of the said
evidence, both documentary and oral, brought on record
by the parties, the trial court shall record the finding on
the status of the appellant and as to whether the Will
propounded is legal and valid and how far the same could
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[2010] 10 S.C.R.
A be relied upon. The trial court shall thereafter send back
to this Court the records with the findings and the
evidence that might be adduced and already on record.
On completion of the aforesaid process, the trial court
shall transmit the entire records with the findings in terms
B of this order to this Court, upon which, the appeal shall
again be listed for hearing for further determination and
orders. [Paras 30, 31] [729-E-H; 730-A-C]
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Kanhiya Singh Santok Singh and Ors. v. Kartar Singh,
(2009) 5 SCC 155 – relied on.
Abdul Rahim & Ors. v. Sk. Abdul Zabar & Ors. , (2009)
6 SCC 160 – referred to.
Case Law Reference:
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(2009) 6 SCC 160
referred to
Para 21
(2009) 5 SCC 155
relied on
Para 29
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
7274 of 2010.
E
From the Judgment and order dated 16.11.2005 of the
High Court of Karnataka at Bangalore in RSA No. 578 of 2000.
S.N. Bhat and Abhishek for the Appellants.
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D.N. Goburdhan for the Respondents.
The Judgment of the Court was delivered by
DR. MUKUNDAKAM SHARMA, J. 1. Leave granted.
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2. This Special Leave Petition is directed against the
judgment and order dated 16.11.2005 passed by the High
Court of Karnataka allowing the appeal filed by the respondents
herein whereby the High Court has restored the judgment and
decree of the trial court. The respondents Nos. 1 to 8 were the
AJAMBI (DEAD) BY LRS. v. ROSHANBI AND ORS.
[DR. MUKUNDAKAM SHARMA, J.]
721
plaintiffs before the trial Court and Usmansab Shaikaji Attar
was the original defendant in the suit which was filed seeking
a decree for partition and separate possession of alleged 7/8
th share in the suit property bearing CTS No. 883/A and 883/
B, situated at Aralikatti Deshpande Galli, Belgaum. It was
stated in the plaint that Shaikaji Attar, the father of the
respondents and the original defendant had two wives, namely
Halimabi and Roshanbi who wasthe plaintiff No. 1.
3. It was submitted in the plaint that Shaikaji Attar died in
or around 1969 leaving behind his second wife Roshanbi, i.e.
plaintiff No. 1, six sons i.e. plaintiff Nos. 2 to 6. and defendant
No. 1 and two daughters i.e. plaintiff Nos. 7 and 8 and heir of
pre-deceased son Umarsab.
4. In the said suit, the parties led evidence. The plaintiff
No. 2 was examined as PW-1 and the original defendant was
examined as DW-1. Both the plaintiffs-respondents and the
original defendant also produced certain documents which were
exhibited in the suit. The trial Court by its judgment and decree
dated 27.7.1988 decreed the suit of the plaintiff by awarding
1/8 th share to the plaintiffs 1 to 6 and 1/16th share to plaintiffs
7 and 8 ˇin the suit property and also 1/8th share in favour of
the defendant.
5. Being aggrieved by the aforesaid judgment and decree
of the trial Court, the original defendant Usmansab Shaikaji
Attar filed a regular appeal before the Court of Civil Judge,
Belgaum, Karnataka. During the pendency of the aforesaid
appeal, the original defendant produced some additional
documents, namely the alleged memorandum of partition by
way of additional evidence.
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6. The First Appellate Court by its judgment and decree
dated 13.11.1995, dismissed the appeal filed by the original
defendant.
7. Being aggrieved, the original defendant filed a second
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[2010] 10 S.C.R.
A appeal before the High Court of Karnataka which was
registered as RSA No. 299 of 1996. The High Court by its
judgment and decree dated 17.9.1998 allowed the appeal and
remanded the matter to the first Appellate Court for fresh
disposal with a direction to receive documentary evidence
B produced before it by the defendant by way of additional
evidence.
8. During the pendency of the aforesaid second appeal
before the High Court after remand, the original defendant
Usmansab died on 7.4.1996. The said defendant left behind
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his wife Ajambi and she was brought on record as the legal
heir of the original defendant. The First Appellate Court
thereafter examined Ajambi as AW-1 who was allowed to lead
additional evidence and she got the documents exhibited as
exhibit (Ex.) D-7 and D-10, which were received as additional
D documents. The plaintiff No. 2 was examined as RW-1.
9. Thereafter, the Additional Civil Judge (Senior Division)
Belgaum by a judgment and decree dated 1.4.2000 allowed
the appeal filed by the original defendant, set aside the
E judgment and decree of the trial court, and consequently
dismissed the suit filed by the plaintiffs holding that the
additional documents which are produced and exhibited as Ex.
D-7 were executed by the predecessor-in-interest, namely Shri
Shaikaji during his lifetime and he disposed of the property as
F per his Will by dividing the property into two parts as claimed
by the defendant.
10. The first Appellate Court also held that in view of the
pleadings, the documents exhibited as Ex. D-7 is proved, and
it is established in terms thereof that there were two divisions
G effected to the suit property. In arriving at this conclusion, the
first Appellate Court also took note of the fact that the names
of the persons who were enjoying the aforesaid two divisions
had been entered into relevant records concerning the property
and the said entries had not been challenged by the plaintiff. In
H conjunction with the aforementioned facts, since the parties
AJAMBI (DEAD) BY LRS. v. ROSHANBI AND ORS.
[DR. MUKUNDAKAM SHARMA, J.]
723
were paying tax to the extent of their property only, it was held
that there was a prior partition between the parties and
therefore the claim of the plaintiffs was not tenable.
Consequently, the appeal was allowed and the suit was
dismissed.
11. Being aggrieved by the said judgment and decree, an
appeal was filed by the respondents herein and the plaintiffs
in the original suit before the High Court of Karnataka which
was registered as RSA No. 578 of 2000.
12. The High Court by its impugned judgment and decree
dated 16.11.2005 allowed the appeal and set aside the
judgment and decree of the first appellate court. In the
aforesaid judgment and decree, the High Court held that
although the document Ex. D-7, which was executed in1958,
indicates that some of the properties have been shown to have
been earmarked and assigned to the plaintiffs and the
defendants, the same cannot be treated as a partition deed
since it is not registered. It was held that a partition deed is to
be compulsorily registered and since Ex. D-7 is not a
registered document, it could not be relied upon. Furthermore,
the High Court took note of the fact that while the suit was filed
in the year 1985, the aforesaid documents came to be
produced in the year 1994 at the appellate stage after suffering
a decree before the trial Court and the same came to be
produced nearly after eleven years.
13. It was also noted that Shaikaji, predecessor-in-interest,
had allegedly created the document exhibited as Ex. D-7 died
in the year 1969, while the entries in the CTS register came to
be made only in the year 1979. The High Court observed that
if the 1958 partition had really been acted upon as per Ex. D7 immediately after the death of Shaikaji, the said entries would
have been made within a reasonable time and they would not
have waited upto the year 1979, when such entries came to
be made.
724
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A
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D
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SUPREME COURT REPORTS
[2010] 10 S.C.R.
14. The High Court, therefore, held that Ext. D-7 cannot be
acted and relied upon for the purpose of establishing a prior
partition of the suit property. Consequently, the appeal was
allowed and the judgment and decree of the first appellate court
was set aside.
15. Being aggrieved by the judgment and decree, the
present appeal was filed in this Court by Smt. Munira, alleged
to be the wife of Kesarkhan Pathan, claiming herself to be the
beneficiary under the Will executed by Ajambi during her
lifetime. Smt. Munira claims that Ajambi had bequeathed the
C property under the Will in favour of Smt. Munira who is allegedly
Ajambi's brother-in- law's daughter.
16. The said Will was purportedly executed on 20.8.2001
and the came to be registered in the office of the Sub-Registrar
D Belgaum on 29.8.2001. Through the aforesaid Will, Ajambi
allegedly ˇbequeathed her property CTS No. 883/A measuring
66.61 sq. meters to the legatee Smt. Munira, wife of Kesarkhan
Pathan claiming under title to the aforesaid portion of the
property. Smt. Munira filed the aforesaid appeal before this
E Court alongwith an application praying for bringing on record
Munira as the legal representative of the deceased Smt.
Ajambi.
17. On presentation of the appeal by her, the same was
registered and the application was registered as interlocutory
application which came up for consideration before this Court.
An order was passed on 3.4.2006 whereby the interlocutory
application was allowed and notice was directed to be issued
on the special leave petition and also on the prayer for interim
relief.
F
F
G
G
H
18. The interlocutory application filed by the appellant was
allowed by this Court but on perusal of the record, we find that
the said order was passed ex-parte and before issuance of
notice to the respondent. The right to be impleaded as a party
H in an appeal could be questioned and challenged and such
AJAMBI (DEAD) BY LRS. v. ROSHANBI AND ORS.
[DR. MUKUNDAKAM SHARMA, J.]
725
right to challenge the locus cannot be taken away from the
respondents herein without giving them an opportunity of
hearing. Therefore, although the aforesaid application was
allowed, the same was always subject to any objection that is
raised by the respondents herein. In fact, the respondents had
raised such an issue immediately upon appearance. Therefore,
the aforesaid issue is required to be decidedas the same is a
disputed question of fact.
19. The respondents having been served in the said
appeal, they entered appearance and filed a counter affidavit
which is sworn by Smt. Roshanbi who was the second wife of
late Shaikaji Attar. In the said counter affidavit, she has stated
that in the special leave petition, there is a mention of the
purported Will allegedly executed during the pendency of the
second appeal and that she challenges the validity and legality
of the aforesaid Will. She has also contended that the said
purported Will has not been probated. She has also stated in
the said counter affidavit that the purported executant has no
absolute right to execute the aforesaid Will pending litigation.
It has been contended that Smt. Munira cannot claim the
property through the purported Will of the first wife, allegedly
dated 20.8.2001, claiming herself to be brother in law's
ˇdaughter and that she has no legal right to the property nor
any right to file the appeal before the High Court.
20. When the suit was taken up for hearing, the counsel
for the respondent took up the plea that the aforesaid Will
propounded by Smt. Munira has not been probated and that
the said Will is neither genuine nor valid. It is also alleged that
under the Mahomedan Law, no claim for inheritance of the
property of a deceased widow could be claimed through an
alleged Will which is not proved and even if such Will is found
to be legal and valid, such person would be entitled to only 1/
3rd of the property and the remaining 2/3rd to be given to the
actual heirs of the family. Reference was also made to Mulla,
an authority on Mahomedanˇlaw, in Chapter IX - "Wills", at
726
SUPREME COURT REPORTS
[2010] 10 S.C.R.
A
A paragraphs 118 and 131 of the said treatise, wherein it is laid
down that under a will only 1/3rd of the net estate could be
bequeathed and that the remaining part of the net estate would
be inherited by the legal heirs and legal representatives.
B
B
21. This Court in the case of Abdul Rahim & Ors. Vs. Sk.
Abdul Zabar &Ors. reported in (2009) 6 SCC 160 held thus: -
C
C
"15. We may notice the definition of gift as contained in
various textbooks. In Mulla's Principles of Mohammadan
Law the "hiba" is defined as a transfer of property made
immediately without any exchange by one person to
another and accepted by or on behalf of later (sic latter).
A.A.A. Fyzee in his Outlines of Muhammadan Law defined
"gift" in the following terms:
D
D
E
E
F
F
G
H
"A MAN may lawfully make a gift of his property to
another during his lifetime; or he may give it away
to someone after his death by will. The first is called
a disposition inter vivos; the second, a testamentary
disposition. Muhammadan law permits both kinds
of transfers; but while a disposition inter vivos is
unfettered as to quantum, a testamentary
disposition is limited to one-third of the net estate.
Muhammadan law allows a man to give away the
whole of his property during his lifetime, but only
one-third of it can be bequeathed by will."..."
22. The learned Counsel appearing for the parties made
their arguments on the merit of their claims of the respective
parties, but we are of the considered opinion that before we
can address ourselves on the merit of the claims of the parties
G and determine the respective shares, it would be necessary to
determine as to whether or not the aforesaid purported Will
propounded by the present appellant herein is a legal and valid
document in the eyes of law and if so, to what right, if any, the
appellant is entitled to in the said property. 23In the interlocutory
H application, the present appellant had stated that she would be
AJAMBI (DEAD) BY LRS. v. ROSHANBI AND ORS.
[DR. MUKUNDAKAM SHARMA, J.]
727
entitled to claim on the basis of the Will, the property being CTS
No. 883/A measuring 66.61 sq. meters. The following sentence
of the application being relevant is extracted below:"4. It is submitted that Ajambi during her life time executed
a `Will' in favour of her brother-in-law's daughter namely,
Smt. Munira Wife of Kesarkhan Pathan on 20.8.2001 and
it came to be duly registered in the office of the SubRegistrar, Belgaum on 29.8.2001. By the said Will, Ajambi
bequeathed her property C.T.S. No. 883/A measuring
66.61 sq. meters to the legatee Smt. Munira W/o
Kesarkhan Pathan. Thus Smt. Munira became the
absolute owner of property C.T.S. No. 883/A of Aralikatti
Deshoande Galli, Belgaum."
24. Therefore, it is established from the record that her
claim is restricted on the basis of the purported Will to the
property No. C.T.S. 883/A measuring 66.61 sq. meters only
wherein she claimed to be the absolute owner. In case the Will
propounded by her is found to be not genuine and valid, in that
case her entire claim will have to be rejected and the aforesaid
property i.e. C.T.S. No. 883/A would revert back to the actual
owners namely the present respondents. If, however, the
aforesaid Will is found to be legal and valid, even in that event
and as per the pleadings and the contentions of the
respondents, she may not be entitled to more than 1/3rd of the
said property namely C.T.S. No. 883/A.
25. These are the events which have arisen after delivery
of the judgment by the High Court. Therefore, two issues arise
for consideration at this stage, which are required to be
determined and decided prior to entering into the respective
claims of theˇ parties.
728
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B
C
D
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SUPREME COURT REPORTS
[2010] 10 S.C.R.
A Office of the sub-Registrar on 29.8.2001, is a legal and valid
document in the eyes of law.
27. If the aforesaid issue is answered in favour of the
appellant Smt. Munira, the further question that is to be
determined is as to whether the appellant herein on the basis
B
of the aforesaid Will is entitled only to 1/3rd of the said area in
terms of the Rules and Principles of Mahomedan Law.
28. Along with the said issues which need to be
determined andˇ answered, in our estimation, there is another
C issue which arises for consideration, which is as to whether the
appellant could claim to be a legal representative. Out of the
said three issues raised herein, in so far as the question of
entitlement of the appellant's share is concerned, the same
appears to be a question of law as it forms a part of the
D principles of Mahomedan Law. There are also some decisions
of the Supreme Court touching upon the said issue. But the
other two issues, namely, the status of the appellant and
whether she would claim to be a legal representative along with
the question as to whether the will propounded by the appellant
E is legal and valid and how far the same could be relied upon,
are disputed questions of fact which are required to be
determined by the court more appropriately by resorting to the
provisions of Order XXII Rule 5 of the Code of Civil Procedure,
1908 [for short "CPC"]. The said two issues being questions
F of fact, the parties must be allowed to lay their evidence in
support of their respective cases. In that view of the matter we
consider it necessary to issue a direction in the present case
to the aforesaid extent in terms of the provisions of Order XXII
Rule 5 CPC.
G
G
H
H
26. The first issue is as to whether the Will propounded
by the appellant herein namely Smt. Munira, wife of Kesarkhan
Pathan allegedly executed on 20.8.2001 and registered in the
29. The decision to act on the basis of Order XXII Rule 5
has been taken in consideration of the proposition laid down
by this Court in the case of Kanhiya Singh Santok Singh and
Ors. Vs. Kartar Singh reported in (2009) 5 SCC 155, in which
the Supreme Court has held thus:
AJAMBI (DEAD) BY LRS. v. ROSHANBI AND ORS. 729
[DR. MUKUNDAKAM SHARMA, J.]
"17. ......The High Court had overlooked this disputed
question of fact and held that the three sons had separate
business for which they could not fall under the category
of "tenant" under the provisions of the Act. Furthermore,
this question of fact cannot be decided without permitting
the parties to lead evidence in respect of their respective
cases and without coming to a finding on such question
of fact by the court."
730
A
B
In paragraph 19, this Court held thus:
"19. Thus considering the ambiguous position regarding
the status of the appellants relating to their status as
tenants, it was necessary for the High Court to remit the
matter to the trial court for a proper determination of the
factual aspects whether the appellants were in fact carrying
on business with late Santok Singh at the time of his death
by taking evidence and thereafter, come to a finding
whether the appellants shall be brought on record in the
second appeal as the legal representatives of late Santok
Singh."
30. We accordingly direct the trial court to take evidence
in the manner indicated above on the two issues, namely: -
C
E
(1) Whether the appellant could claim to be a legal
representative?
F
And
(2) Whether or not the will propounded by the appellant
herein, namely, Smt. Munira, wife of Kesarkhan Pathan,
allegedly executed on 20.8.2001 and registered in the
Office of the sub-Registrar on 29.8.2001 is a legal and
valid document in the eyes of law?
31. After completion of the recording of the said evidence,
both documentary and oral, brought on record by the parties,
the trial court shall record the finding on the status of the
G
H
[2010] 10 S.C.R.
A appellant and as to whether the Will propounded is legal and
valid and how far the same could be relied upon. The trial court
shall thereafter send back to this Court the records with findings
and evidence that might be adduced and already on record.
The aforesaid process shall be completed within a period of
B four months from the date of receipt of the record from this Court
and on completion thereof, the trial court shall transmit the entire
records with the findings in terms of this order to this Court,
upon which, the appeal shall again be listed for hearing for
further determination and orders. Let the original records be
C sent back to the trial court immediately.
B.B.B
D
SUPREME COURT REPORTS
Appeal adjourned.
732
[2010] 10 S.C.R. 731
HUSSAINBHAI ALLARAKHBHAI DARIAYA & ORS.
v.
STATE OF GUJARAT & ORS.
(Civil Appeal No. 7208 of 2010)
AUGUST 31, 2010
A
A
B
B
Or. 23, r.3 and 3-B – Compromise of a suit/appeal –
Requirements to be complied with – Explained – HELD: In
the instant case, the compromise alleged was not between
the parties to the suit/appeal, but was between two groups of
two communities – Further a decree can be made in terms
of compromise only in so far as it relates to the parties to the
suit – Ultimately, first appellate court made an order refusing
to draw a decree in terms of the ‘compromise’ between nonparties, as the appeal was disposed of in pursuance of the
memo of withdrawal.
C
C
D
D
Or.23, r.3-B, Explanation – “Representative suit” –
Explained.
E
E
F
F
[R.V. RAVEENDRAN AND H. L. GOKHALE, JJ.]
Code of Civil Procedure, 1908:
s.100 – Second appeal filed with application for leave to
file appeal by persons who were not parties to suit/first appeal
– Maintainability of – In the instant case, the parties to the
suit/appeal had not entered into any compromise and the
court had not passed a decree in terms of the compromise –
In fact, the court could not pass any decree in terms of the
said compromise as it was not between the parties to the
appeal – Request of the plaintiff/appellant was for withdrawal
of the first appeal and that request was granted and the appeal
was dismissed as withdrawn – When an appeal has been
withdrawn by the persons who filed the appeal, it is not open
to some other parties to file second appeal challenging the
731
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G
SUPREME COURT REPORTS
[2010] 10 S.C.R.
withdrawal of the first appeal on the ground that a ‘compromise’
was illegally entered – Neither O. 23, r.3, nor O. 23, r. 3-B was
attracted.
Plaintiff-respondent No. 6, namely, the Samast Sunni
Muslim Jamat Damnagar (Jamat), represented by its
Secretary, filed a suit against respondent Nos. 1 to 5, inter
alia, for declaration that it was the owner-in-possession
of old Survey No. 248. The trial court though granted the
other reliefs, rejected the claim of the plaintiff as regards
Old Survey No. 248. In the first appeal filed by the plaintiff,
a consent ‘pursis’ signed by 4 Trustees of the Jamat and
endorsed by the Sarpanch and the Secretary of the
Grampanchayat was filed. Subsequently, a compromise
agreement entered into between leaders of ‘Muslim
Samaj’ and “Samast Hindu Samaj’, was filed. The first
appellate court disposed of the appeal in terms of the
consent ‘pursis’ and the agreement. The appellants, who
were neither parties to the suit nor to the first appeal, but
claimed to be the members of the Jamat, filed a second
appeal before the High Court, with an application seeking
permission to file the appeal. The High Court held that the
Jamat had not filed the suit in a representative capacity
and, therefore, the application seeking leave to file the
second appeal and the second appeal filed by the
appellants were not maintainable.
Dismissing the appeal, the Court
HELD: 1. The second appeal by the appellants was
not maintainable and the refusal to grant leave to appeal
was justified, though for reasons different from what has
been mentioned by the High Court. [para 17] [745-F-G]
2.1 A compromise of a suit is governed by Rule 3 of
Order 23 of the Code of Civil Procedure, 1908. However,
if the suit which is compromised, is a representative suit,
H
H
HUSSAINBHAI ALLARAKHBHAI DARIAYA & ORS. v. 733
STATE OF GUJARAT
two additional requirements of Rule 3B will also have to
be complied with. They are: (i) compromise cannot be
entered without the leave of the court expressly recorded
in the proceedings; and (ii) before granting such leave,
the court shall give notice to such persons as may appear
to it to be interested in the suit. The Explanation to Rule
3B defines four categories of suits as “representative
suits” for the purpose of the said rule : (a) suits u/s 91 or
section 92 of the Code; (b) suits under Order 1 Rule 8 of
the Code; (c) suits in which the manager of an undivided
Hindu Family sues or is sued as representing the other
members of the family; and (d) suits in which the decree
passed may bind any person who is not named as a party
to the suit by virtue of the provisions of the Code of Civil
Procedure or any other law for the time being in force. If
a suit should answer the definition of a `representative
suit’ under clause (d) of the Explanation, two conditions
should be satisfied - (i) the decree passed in the suit
should bind the person who is not named as a party to
the suit; and (ii) the decree should so bind a person who
is not named as a party to the suit, by virtue of the
provisions of the Code or any other law for the time being
in force. [para 10] [742-B-F]
2.2 In the instant case, the compromise alleged was
not between the parties to the suit/appeal. The
defendants/respondents were the State Government, the
Mamlatdar, Development Officer and the Gram Panchayat.
None of them were parties to the compromise. Even the
Jamat represented by the Secretary, was not a party to
the compromise. The alleged compromise was between
two groups, namely, 14 persons representing the Muslim
community and 18 persons representing the Hindu
community of the locality. Therefore, it cannot be said to
be a compromise between the parties to the suit or the
appeal. Further, under Order 23 Rule 3, a decree can be
734
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B
C
D
E
F
G
H
SUPREME COURT REPORTS
[2010] 10 S.C.R.
A made in terms of the compromise only insofar as it relates
to the parties to the suit. Where either plaintiff-appellants
or the defendant-respondents were not parties, it cannot
be said that there was a compromise between the parties
to the suit or appeal. [para 14] [744-D-G]
B
1.3 The pursis (Memo - Ex.17) filed by the appellants
in the first appeal stated that the trustees of the Jamat
were withdrawing the appeal unconditionally, in view of
the compromise reached between two groups of people
who were not parties to the appeal. The parties to the
C
appeal, that is the appellants and respondents, did not
sign or file any compromise petition before the court. The
first appellate court could not, therefore, direct that a
decree be drawn up in terms of the ‘compromise’
between two sets of non-parties, while dismissing the
D first appeal as withdrawn. Though the order disposing of
the first appeal stated that a decree shall be drawn
according to the “agreement” submitted along with the
consent pursis, no such decree has been drawn. It has
also been brought to the notice of the Court that recently
E the first appellate court has made an order refusing to
draw a decree in terms of the compromise between nonparties, as the appeal was disposed of in pursuance of
the memo of withdrawal. [para 15] [744-H; 745-A-C]
1.4 When an appeal has been withdrawn by the
persons who filed the appeal, it is not open to some
other parties to file an appeal challenging the withdrawal
of the first appeal on the ground that a ‘compromise’ was
illegally entered. In the instant case, the parties to the suit
had not entered into any compromise and the court had
G
not passed a decree in terms of the compromise. In fact,
the court could not pass any decree in terms of the said
compromise as it was not between the parties to the
appeal. The request of the Jamat was for withdrawal of
the first appeal and that request was granted and the
H
F
HUSSAINBHAI ALLARAKHBHAI DARIAYA & ORS. v. 735
STATE OF GUJARAT
appeal was dismissed as withdrawn. Neither Order 23
Rule 3, nor Order 23 Rule 3-B was attracted. Therefore, a
second appeal would not lie at the instance of any nonparty, as there is no appealable order or decree. [para 16]
[745-C-F]
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
7208 of 2010.
From the Judgment & Order dated 13.10.2006 of the High
Court of Gujarat at Ahmedabad in Civil Application No. 3427
of 2006 with Civil Application No. 3429 of 2006 with Second
Appeal 70 of 2005 with Civil Application 1985 of 2005 in
Second Appeal 70 of 2005.
Huzefa Ahmadi, Ejaz Maqbool, Sakshi Banga, Garima
Kapoor, Mohd. Tahir Hakim for the Appellants.
736
A
C
3. After contest, the said suit was decreed in part by the
Civil Judge, Senior Division, Amreli by judgment and decree
dated 29.11.2003. The trial court declared that the plaintiff
Jamat was the owner of plot Nos. 23, 24, 25,26 and 28
(described in the annexed order of District Development Officer
B dated 13.10.1977, canceling the auction of those plots) and
granted a permanent injunction restraining the defendants from
obstructing or interfering with the possession of the plaintiff
Jamat. The trial court however rejected the claim of the plaintiff
Jamat in regard to old survey No.248 in the absence of exact
C measurements and boundaries of the said land.
D
4. Feeling aggrieved, the said Jamat filed an appeal
before the Assistant District Judge, Amreli (Regular Civil
Appeal No.67/2003). In the said appeal, the following pursis
dated 3.8.2004 (Ex.17) was filed by the four trustees of the
D Jamat :
B
“We, the appellants submit the said pursis in this case and
declare that :-
The Judgment of the Court was delivered by
2. The appellants are aggrieved by the rejection of their
application seeking permission to file a second appeal. The
Samast Sunni Muslim Jamat, Damnagar (6th respondent
herein, for short the ‘Jamat’) represented by its Secretary filed
a suit against respondents 1 to 5 in the court of the Civil Judge
(Senior Division), Amreli (Regular Civil Suit No.240/1995) for
a declaration that they are the owners in possession of land
bearing old survey No.248, Damnagar. They also sought a
permanent injunction restraining the fifth respondent Damnagar
Gram Panchayat (now Damnagar Nagarpalika) from interfering
with the right of the plaintiff to construct a compound wall/fencing
around the Kabrastan. They also sought a direction to
respondents 1 to 5 to remove any encroachments over the said
Kabrastan land.
[2010] 10 S.C.R.
A
Raju Ramachandran, Mitul Shehlat, Milind Kumar, Madhvi
Divan, Hemantika Wahi, Jesal for the Respondents.
R.V. RAVEENDRAN, J. 1. Leave granted.
SUPREME COURT REPORTS
E
E
F
F
G
G
(1) We, the appellants have filed the present appeal
against the respondent. In the said appeal, the consent
pursis and agreement has been made between the
members of both community and the Panchayat in the
decree of the trial court. Therefore, the appeal does not
remain to be tried further. Therefore, we withdraw the
appeal unconditionally.
(2) The Grampanchayat Damnagar, villagers and the
members of the community have to do and behave as per
the compromise agreement herewith and carry out the
agreement specifically and we withdraw the appeal
accordingly.
(3) Therefore, we agree and declare by the pursis that the
appeal may be disposed off accordingly.”
H
H
HUSSAINBHAI ALLARAKHBHAI DARIAYA & ORS. v. 737
STATE OF GUJARAT [R.V. RAVEENDRAN, J.]
The said pursis also contained an endorsement by the
Sarpanch and Secretary of Damnagar Grampanchayat
confirming that they would not insist for any costs of the suit.
5. The compromise agreement referred to in the said
pursis dated 3.8.2004 was entered into between two groups
of residents of Damnagar, namely the Samast Sunni Muslim
Jamat as the leaders of the Muslim Samaj and the leaders of
the Samast Hindu Samaj. The said compromise is extracted
below :
“(1) The status quo which is obtained by Bavbhai
Gajibhai Chudasama and others with respect to the land
admeasuring 30,000 Sq.Feet, situated at the eastern side
at Chhabhadia Road, allotted vide the Government Order
to Shree Akshar Purshottam Swaminarayan Trust shall be
withdrawn.
(2) The land admeasuring 120m x 90 feet = 10,800 Sq.
Feet situated after leaving the road from Dargah at the
western side from the land allotted to the Trust, shall be
left for the Sunni Muslim Jamat.
738
(5) Except the land admeasuring 10,800 Sq. Feet allotted
to the Sunni Muslim Jamat, all the entire land shall remain
of the Akshar Purshottam Trust.
A
B
B
C
C
D
D
E
The said agreement was not a compromise petition between
the plaintiffs and the defendants in the suit, or between the
appellants and respondents in the appeal, but an agreement
E
said to have been reached by the leaders of two communities,
signed by 14 persons on behalf of the Sunni Jamat and 19
persons on behalf of the Hindu Samaj.
F
F
G
G
H
H
(6) With regard to the said land, now after any party from
amongst both the party shall not raise any dispute before
the Government Office or in the Court.
(7) With regard to the land allotted to the Akshar
[2010] 10 S.C.R.
A
(3) For the social activity no construction activity for
constructing the houses by the Sunni Muslim Jamat shall
be allowed. The land shall be left for open place.
(4) Pursuant to the order of the Honourable Court from
amongst the five plots, the present land is allotted.
SUPREME COURT REPORTS
Purshottam Trust any dispute which is raised previously
and with reference to the said dispute any party shall give
the consent in the Government Office or before the Court
in respect of the point of Compromise.
(8) The case which is proceeding in the Tribunal with
reference to the land of the said Trust, for the same
Bavjibhai Gajibhai Chudasama and Daudbhai R. Pathan
shall withdraw the case.
The said Agreement of Compromise is executed with aim
to prevail peace and harmony in between the Hindu and
Muslim and for maintaining Hindu Muslim unity for years
to come and with an aim of avoiding any obstruction in the
peace and harmony and the recent festival cannot be
affected and for the larger interest of the future and which
is executed by our consent and willingness and for the
same we are putting our signature below.”
6. On the said pursis dated 3.8.2004 (Ex.17) filed by the
Jamat, the first appellate court made the following order dated
3.8.2004 :
“Both the parties present before the Court and have
submitted the joint consent pursis. Moreover, the L.A. for
the concerned party as well as Sarpanch and Secretary
of Damnagar Gram Panchayat have also signed the
consent pursis. Further more, the consent pursis has read
over to the parties who have submitted one agreement
along with the consent pursis is also read over to them
and they have also admitted the facts of the agreement
HUSSAINBHAI ALLARAKHBHAI DARIAYA & ORS. v. 739
STATE OF GUJARAT [R.V. RAVEENDRAN, J.]
which is submitted along with the consent pursis and they
have stated in their consent pursis that as per the
agreement, the appeal should be disposed of and as per
their contentions contained in the consent pursis and
agreement, this application is hereby granted, with no
order as to costs.”
740
A
B
The appeal was disposed of by the following order dated
3.8.2004:
“In view of the consent pursis along with the agreement
submitted by both the parties before this Court on 03-0804 and have agreed to dispose of this appeal according
to the consent pursis and agreement, have also agreed
to draw the decree according to the agreement which has
been submitted along with the consent pursis and,
therefore, the consent pursis has been granted by this
Court. So, this appeal is hereby disposed of according to
the consent pursis at Exh. 17 along with the agreement and
the decree is hereby drawn according to the agreement
which submitted along with the consent pursis and hence,
this appeal is hereby disposed of accordingly, with no
order as to costs.”
7. The appellants who claimed to be the individual
members of the Sunni Jamat, and who were not parties either
to the suit or the first appeal, were aggrieved by the said
compromise resulting in disposal of the first appeal as
according to them, 30,000 sq. ft. of Kabrastan land had been
unauthorisedly given to Akshar Purshottam Trust. According to
appellants the Sunni Jamat had no legal authority to deal with
or give away the Kabrastan (wakf) land for any purpose other
than the use of Muslims in Damnagar. They therefore filed a
second appeal before the Gujarat High Court challenging the
order disposing of the first appeal. As they were not parties to
the first appeal, they also filed an application seeking
permission to file the appeal.
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[2010] 10 S.C.R.
8. A learned Single Judge of the High Court dismissed the
application for permission to file the second appeal.
Consequently the second appeal was also dismissed by order
dated 13.10.2006. The High Court held that the Sunni Jamat
had not filed a suit in a representative capacity under Order 1
B Rule 8 of the Code of Civil Procedure (‘Code’ for short); that it
was not the contention of the appellants that the Secretary of
the Sunni Jamat was not entitled or authorized to file a suit; that
if the Secretary represented the interests of the members of
the Jamat, then the suit was by a person authorized by the
members of the Jamat and not by a person filing a suit in his
C
representative capacity; that as the suit by the Secretary of the
Jamat was not a representative suit either for purpose of
section 92 or for the purpose of Order 1 Rule 8 of the Code, it
cannot be taken to be a representative suit for the purpose of
Order 23 Rule 3B of the Code; and that therefore the application
D seeking leave to file the second appeal and the second appeal
by the appellants were not maintainable. The said judgment is
challenged by the appellants in this appeal by special leave.
A
9. We may have to notice the relevant provisions of law
before
referring to the rival contentions. Rule 1 of Order 23
E
provides for withdrawal of a suit or abandonment of a part of a
claim. Rule 3 of Order 23 provides for compromise of a suit
and the relevant portion thereof is extracted below :
F
F
G
G
H
H
“Compromise of suit.—Where it is proved to the
satisfaction of the Court that a suit has been adjusted
wholly or in part by any lawful agreement or compromise
in writing and signed by the parties, or where the defendant
satisfies the plaintiff in respect of the whole or any part of
the subject-matter of the suit, the Court shall order such
agreement, compromise or satisfaction to be recorded,
and shall pass a decree in accordance therewith so far as
it relates to the parties to the suit, whether or not the
subject-matter of the agreement, compromise or
satisfaction is the same as the subject-matter of the suit:”
HUSSAINBHAI ALLARAKHBHAI DARIAYA & ORS. v. 741
STATE OF GUJARAT [R.V. RAVEENDRAN, J.]
Rule 3A of Order 23 provides that no suit shall lie to set aside
a decree on the ground that the compromise on which the
decree is based was not lawful. Rule 3B of Order 23 provides
that no agreement or compromise shall be entered in a
representative suit without leave of court. The said rule is
extracted below :
“3B. No agreement or compromise to be entered in
a representative suit without leave of Court.—(1) No
agreement or compromise in a representative suit shall be
entered into without the leave of the Court expressly
recorded in the proceedings; and any such agreement or
compromise entered into without the leave of the Court so
recorded shall be void.
(2) Before granting such leave, the Court shall give notice
in such manner as it may think fit to such persons as may
appear to it to be interested in the suit.
742
A
A
B
B
C
D
Explanation.—In this rule, “representative suit” means,—
(a) a suit under section 91 or section 92,
E
(b) a suit under rule 8 of Order I,
(c) a suit in which the manager of an undivided Hindu family
sues or is sued as representing the other members of the
family,
F
(d) any other suit in which the decree passed may, by virtue
of the provisions of this Code or of any other law for the
time being in force, bind any person who is not named as
party to the suit.”
G
Order 43 Rule 1A relates to right to challenge non-appealable
orders in appeal against decrees and sub-rule (2) thereof is
extracted below :
“(2) In an appeal against a decree passed in a suit after
H
SUPREME COURT REPORTS
[2010] 10 S.C.R.
recording a compromise or refusing to record a
compromise, it shall be open to the appellant to contest
the decree on the ground that the compromise should, or
should not, have been recorded.”
10. A compromise of a suit is governed by Rule 3 of Order
23 of the Code. However, if the suit which is compromised, is
a representative suit, two additional requirements of Rule 3B
will also have to be complied with. They are : (i) compromise
cannot be entered without the leave of the court expressly
recorded in the proceedings; and (ii) before granting such leave,
C
the court shall give notice to such persons as may appear to it
to be interested in the suit. The Explanation to Rule 3B defines
four categories of suits as “representative suits” for the purpose
of the said rule : (a) suits under section 91 or section 92 of the
Code; (b) suits under Order 1 Rule 8 of the Code; (c) suits in
D which the manager of an undivided Hindu Family sues or is
sued as representing the other members of the family; and (d)
suits in which the decree passed may bind any person who is
not named as a party to the suit by virtue of the provisions of
the Code of Civil Procedure or any other law for the time being
E in force. If a suit should answer the definition of a ‘representative
suit’ under clause (d) of the Explanation, two conditions should
be satisfied – (i) the decree passed in the suit should bind the
person who is not named as a party to the suit; and (ii) the
decree should so bind a person who is not named as a party
F to the suit, by virtue of the provisions of the Code or any other
law for the time being in force.
11. Learned counsel for the appellants contended that the
High Court committed a serious error in assuming that the leave
of the court for entering into a compromise would be required
G
only in a representative suit filed under section 91 or 92 of the
Code or under Order 1 Rule 8 of the Code, or a suit in which
the manager of an undivided family sues or is sued as
representing the other members of the family. According to
appellants, having regard to the Explanation under Rule 3B,
H
HUSSAINBHAI ALLARAKHBHAI DARIAYA & ORS. v. 743
STATE OF GUJARAT [R.V. RAVEENDRAN, J.]
even if a suit is not filed under Order 1 Rule 8 of the Code, if
the decree passed in a suit would bind any person who is not
a party to such suit, by virtue of the provisions of the Code or
any other law for the time being in force, then it will be a
“representative suit” for the purpose of Order 23 Rule 3B of the
Code, having regard to clause (d) of the Explanation. It is
submitted that as the decree in a suit to which a Jamat is a
party, would bind all members of the Jamat who are not parties
to such suit, the suit by or against the Jamat is to be considered
as a representative suit for the purpose of clause (1) of Rule
3B of Order 23 and consequently a compromise could be
entered in a suit to which the Jamat is a party, only with the
leave of the court granted after giving notice to all the members
of the Jamat. It is submitted that as the leave of the court was
not obtained for entering into such a compromise and as the
court did not give notice to persons interested in the suit, the
compromise was not a valid compromise and any person
affected by the said compromise could challenge the same by
filing a second appeal having regard to the provisions of Order
43 Rule 1A(2). The appellants submit that category (d) under
the Explanation to Rule 3B was ignored by the High Court.
12. On the other hand, the respondents contended that the
suit by the Jamat was not a representative suit. They submitted
that the appellants admitted that the suit of the Jamat did not
fall under categories (a) to (c) enumerated in the Explanation
to Rule 3B. They contended that for a suit to fall under clause
(d) of the Explanation to Rule 3B, it is necessary that the decree
made in such suit should bind a person who is not a party to
the suit by virtue of the special provisions in the Code or any
other law. It is submitted that there is no provision in the Code
or any other law which make the decree in a suit by or against
the Jamat, binding on a person who is not a party to the suit. It
is submitted that the argument of the appellants if accepted,
would mean that even where a compromise is entered in suits
to which a company (incorporated under the Companies Act)
or a co-operative society (registered under the Cooperative
744
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B
C
D
E
F
G
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SUPREME COURT REPORTS
[2010] 10 S.C.R.
A Societies Act) or a society (registered under the Societies
Registration Act) is a party, it would be necessary to treat them
as representative suits and issue notice to all members thereof
on the ground that the decree passed in such suits, would bind
members of such company, co-operative society or society,
B who are not parties to the suit. The respondents submitted such
a position would be untenable.
13. It is unnecessary to examine the question as to the
constitution of the Jamat or the question whether a suit by or
against the Jamat will bind all members of the Jamat or the
C question whether the members of the Jamat will be so bound
by virtue of any specific provision in the Code or any other law,
as these questions do not arise in this case.
14. The compromise alleged was not between the parties
D to the suit/appeal. As noticed above, the defendants/
respondents were the State of Gujarat, the Mamlatdar of Lathi,
Amreli District Panchayat, the Taluka Development Officer of
Lathi and the Damnagar Gram Panchayat. None of them were
parties to the compromise. Even the Jamat represented by the
E Secretary, was not a party to the compromise. The alleged
compromise was between two groups, namely, 14 persons
representing the Muslim community of Damnagar and 18
persons representing the Hindu community of Damnagar.
Therefore, it cannot be said to be a compromise between the
parties to the suit or the appeal. Further under Order 23 Rule
F
3, a decree can be made in terms of the compromise only
insofar as it relates to the parties to the suit. Where either
plaintiff-appellants or the defendant-respondents were not
parties, it cannot be said that there was a compromise between
the parties to the suit or appeal.
G
15. The pursis (Memo – Ex.17) filed by the appellants in
the first appeal stated that the trustees of the Jamat were
withdrawing the appeal unconditionally, in view of the
compromise reached between two groups of people who were
H not parties to the appeal. The parties to the appeal, that is the
HUSSAINBHAI ALLARAKHBHAI DARIAYA & ORS. v. 745
STATE OF GUJARAT [R.V. RAVEENDRAN, J.]
appellants and respondents did not sign or file any compromise
petition before the court. The first appellate court could not
therefore direct that a decree be drawn up in terms of the
‘compromise’ between two sets of non-parties, while
dismissing the first appeal as withdrawn. Though the order
dated 3.8.2004 disposing of the first appeal stated that a
decree shall be drawn according to the “agreement” submitted
along with the consent pursis, no such decree has been drawn.
We are informed that recently the first appellate court has made
an order refusing to draw a decree in terms of the compromise
between non-parties, as the appeal was disposed of in
pursuance of the memo of withdrawal. Be that as it may.
16. When an appeal has been withdrawn by the persons
who filed the appeal, it is not open to some other parties to file
an appeal challenging the withdrawal of the first appeal on the
ground that a ‘compromise’ was illegally entered. As noticed
above, the parties to the suit had not entered into any
compromise and the court had not passed a decree in terms
of the compromise. In fact the court could not pass any decree
in terms of the said compromise as it was not between the
parties to the appeal. The request of the Jamat was for
withdrawal of the first appeal and that request was granted and
the appeal was dismissed as withdrawn. Neither Order 23 Rule
3, nor Order 23 Rule 3B was attracted. Therefore a second
appeal would not lie at the instance of any non-party, as there
is no appealable order or decree.
17. We are therefore of the view that the appeal by the
appellants was not maintainable and the refusal to grant leave
to appeal was justified, though for reasons different from what
has been mentioned by the High Court. We however make it
clear that the refusal to grant leave would not come in the way
of the appellants pursuing any claim or remedies, if any,
available in accordance with law.
R.P.
[2010] 10 S.C.R. 746
A
A
B
B
YADAVA KUMAR
v.
THE DIVISIONAL MANAGER, NATIONAL INSURANCE
CO. LTD. & ANOTHER
(Civil Appeal No. 7223 of 2010)
AUGUST 31, 2010
[G.S. SINGHVI AND ASOK KUMAR GANGULY, JJ.]
Motor Vehicles Act, 1988:
C
D
E
F
C
ss. 163A and 5 – Disability in non-fatal accidents –
Calculation of compensation – Painter sustained injuries in
a road accident – Compensation of Rs.52,000/- awarded by
tribunal – High Court enhanced it to Rs.72,000/- – On appeal,
D held: High Court while granting compensation refused to
award any amount towards loss of future earning – Doctor
opined that claimant suffered disability of 33% of right upper
limb, 21% of left upper limb and 20% total disability of the
whole body – Claimant is bound to suffer loss in earning
capacity as a painter and has to earn his livelihood by virtue
E
of physical work – In order to do complete justice,
compensation assessed – Multiplier of 17 applied – Thus,
claimant awarded two lakh rupees as compensation with 8%
interest – Constitution of India, 1950 – Article 142.
F
‘Just compensation’ – Concept of.
‘Compensation’ and ‘damage’ – Distinction between.
G
Appeal dismissed.
H
The appellant-painter, aged 30 years sustained
several injuries in a road accident. He was hit by a tempo.
G The appellant filed a claim petition. PW-2, Orthopaedic
Surgeon, opined that the appellant suffered a disability
of 33% of right upper limb and 21% of left upper limb and
20% total disability of the whole body and as a result he
could not work as a painter nor could he do any other
746
H
YADAVA KUMAR v. DIVISIONAL MANAGER, NATIONAL
INSURANCE
747
manual work. The tribunal awarded compensation of Rs.
52,000/-. The High Court enhanced the compensation to
Rs.72,000/-. Both the tribunal and the High Court did not
incorporate any thing by way of compensation in the
category of ‘loss of future earnings’. Therefore, the
appellant filed the instant appeal claiming higher
compensation.
748
A
B
Partly allowing the appeal, the Court
HELD: 1.The Second Schedule under Section 163A
of the Motor Vehicles Act, 1988 gives a structured
formula for the calculation of compensation in accident
cases. Section 5 of the Schedule deals with disability in
non-fatal accidents. The multiplier method is to be applied
in cases of injuries also. [Paras 10 and 11] [752-E-F; 753E]
2.1 In the instant case, the appellant sustained a
fracture of distal end of left radius with fracture of left
ulnar styloid process and fracture distal end of right
radius with mild diastosis and soft tissues swelling
around wrist joint. The doctor assessed the disability at
33% in respect of the right upper limb and 21% towards
left upper limb and 20% in respect of the whole body,
which prevented the appellant from painting in view of
multiple injuries sustained by him. The High Court while
granting compensation refused to award any amount
towards loss of future earning, inter-alia, on the ground
that the appellant did not produce an iota of document
to substantiate his stand. This view of the High Court
cannot be accepted. [Paras 14, 15 and 16] [754-A-D]
2.2 While assessing compensation in accident cases,
the High Court or the tribunal must take a reasonably
compassionate view of things. It cannot be disputed that
the appellant being a painter has to earn his livelihood
by virtue of physical work. The nature of injuries which
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D
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SUPREME COURT REPORTS
[2010] 10 S.C.R.
A he admittedly suffered, and about which the evidence of
PW-2 is quite adequate, amply demonstrates that
carrying those injuries he is bound to suffer loss of
earning capacity as a painter and a consequential loss
of income is the natural outcome. [Para 17] [754-E-F]
B
2.3 In matters of determination of compensation both
the tribunal and the court are statutorily charged with a
responsibility of fixing a ‘just compensation’. It is
obviously true that determination of a just compensation
cannot be equated to a bonanza. At the same time, the
C
concept of ‘just compensation’ obviously suggests
application of fair and equitable principles and a
reasonable approach on the part of the tribunals and
courts. This reasonableness on the part of the tribunal
and the court must be on a large peripheral field. Both
D the courts and tribunals in the matter of this exercise
should be guided by principles of good conscience so
that the ultimate results become just and equitable. [Para
18] [754-G-H] [755-A-B]
E
F
Mrs. Helen C. Rebello and Ors. vs. Maharashtra State
Road Transport Corpn. and Anr. AIR 1998 SC 3191 – relied
on.
2.4 In the determination of the quantum of
compensation, the court must be liberal and not niggardly
in as much as in a free country law must value life and
limb on a generous scale. [Para 19] [755-C]
Hardeo Kaur and Ors. vs. Rajasthan State Transport
Corporation and Anr. (1992) 2 SCC 567 – relied on.
G
G
H
H
2.5 The High Court and the tribunal must realize that
there is a distinction between compensation and damage.
The expression compensation may include a claim for
damage but compensation is more comprehensive.
Normally damages are given for an injury which is
YADAVA KUMAR v. DIVISIONAL MANAGER, NATIONAL
INSURANCE
749
suffered, whereas compensation stands on a slightly
higher footing. It is given for the atonement of injury
caused and the intention behind grant of compensation
is to put back the injured party as far as possible in the
same position, as if the injury has not taken place, by way
of grant of pecuniary relief. Thus, in the matter of
computation of compensation, the approach will be
slightly more broad based than what is done in the matter
of assessment of damages. At the same time, it is true that
there cannot be any rigid or mathematical precision in the
matter of determination of compensation. Therefore, the
approach of the High Court in totally refusing to grant any
compensation for loss of future earning is not a correct
one. [Paras 20 and 21] [755-D-G]
2.6 To shorten litigation, and having regard to the
power of this Court under Article 142 of the Constitution
to do complete justice between the parties, the
compensation is assessed. The loss of future income
may be calculated using the multiplier method. The yearly
income of the appellant is Rs.36,000/-. Multiplier according
to age (30 years) as per Schedule is 17. The total comes
to: Rs.36,000/- x 17=Rs.6,12,000/-. Percentage of
disablement is 20%. Therefore, loss of future earnings
would come to Rs.1,22,400/-. On adding this to the
compensation provided by the High Court, the total
compensation comes to Rs.1,22,400/- +Rs.72,000/-=
Rs.1,94,400/-. Therefore, a lump sum of Two Lakh Rupees
is granted by way of compensation plus 8% interest.
[Paras 22, 23, 24] [756-A-F]
Case Law Reference:
A
Referred to.
Para 12
AIR 2010 SC 40
Referred to.
Para 13
2006 ACJ 1792
Referred to.
Para 13
Para 13
A
SUPREME COURT REPORTS
[2010] 10 S.C.R.
AIR 1998 SC 3191
Relied on.
Para 18
(1992) 2 SCC 567
Relied on.
Para 19
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
7223 of 2010.
B
B
From the Judgment & Order dated 12.08.2009 of the High
Court of Karnataka at Bangalore in M.F.A. No. 5718 of 2006
(M.V.).
C
C
V.N. Raghupathy for the Appellant.
M.K. Dua, Kishore Rawat for the Respondents.
The Judgment of the Court was delivered by
D
D
GANGULY, J. 1. Delay condoned.
2. Leave granted.
E
3. Assailing the Division Bench judgment of the Karnataka
High Court dated 12.8.2009, whereby compensation of
Rs.52,000/- granted by the Tribunal was enhanced to
E
Rs.72,000/-, this appeal claiming higher compensation was
filed by the appellant.
4. The Hon’ble High Court has awarded compensation
under the following heads:
F
G
2008 ACJ 9
2003 (5) Karn. L.J. 186 Referred to.
750
H
F
G
H
1.
Towards pain and suffering: Rs.20,000/-
2.
Loss of income from the period of treatment:
Rs.9,000/-
3.
Towards medical expenses, conveyance,
nourishing food and attendant charges:
Rs.8,000/-
4.
Towards loss of amenities: Rs.35,000/Total: Rs.72,000/- + 8% p.a. interest from the
date of the petition till realization.
YADAVA KUMAR v. DIVISIONAL MANAGER, NATIONAL
INSURANCE [ASOK KUMAR GANGULY, J.]
751
752
5. The material facts of the case are that, the appellant, a
painter by profession, was 30 years old at the time of
sustaining the injury in a road accident which took place on 24th
March 2003 while the appellant was standing on the side of
Nagavara Ring Road to cross it from south to north. The
offending Tempo bearing No.KA-04-C/6030 came at a great
speed from west to east and hit the appellant as a result of
which he fell down and sustained several injuries. The appellant
was rushed to Al-Habeeb Hospital where he was treated. The
claim petition was filed on 3rd February, 2006.
A
6. About the nature of the injury sustained by the appellant,
the evidence of PW-2 Dr. S. Ranjanna, Orthopaedic Surgeon,
Bowring & Lady Curzon Hospital, Bangalore is very crucial.
PW-2 examined the appellant on 26.11.05. As per the wound
certificate and X-ray report of Al-Habeeb Hospital, Bangalore,
PW-2 noted that the appellant sustained the following injuries:
C
B
D
“(1) Fracture of distal end of left radius with fracture of
left ulnar styloid process.
(2) Fracture of distal end of right radius with mild
diastases is Radioulnar joint and soft tissue swelling
around wrist joint.”
7. Even on examination on 26.11.05,which is after two and
a half years after the date of incident, PW-2 found the following
injuries on the appellant:
(1)
Deformity of right wrist
(2)
Limitation of right wrist movements by 40%
(3)
Limitation of right forearm movements by
30%
(4)
Wasting of right forearm muscles by 3 cms
(5)
Weak Right hand grip
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SUPREME COURT REPORTS
[2010] 10 S.C.R.
(6)
Limitation of left wrist movement by 25%
(7)
Tenderness over left wrist
(8)
Instability of left in favour of Radio ulnar joint
(9)
Weakness of left hand
8. PW-2 opined that in view of the injuries the appellant
cannot perform any hard work, cannot lift any weight and cannot
perform any work smoothly and after referring to various
guidelines in manual PW-2 opined that the appellant has
C disability of 33% of right upper limb and 21% to left upper limb
and 20% total disability of the whole body. In view of such
disability, appellant cannot work as a painter and cannot do any
other manual work also. In cross-examination also PW-2
admitted that even if the appellant continues his old vocation
D as a painter, he has to do it with difficulty.
9. Both the Tribunal and the High Court have failed to
incorporate any thing by way of compensation in the category
of ‘loss of future earnings’ in spite of recognizing the fact that
there is disability of 33% in the right upper limb, 21% in the left
E
upper limb and 20% in respect of the whole body, which does
not allow the appellant to paint as he did earlier.
F
10. The Second Schedule under Section 163A of the
Motor Vehicles Act, 1988 gives a structured formula for the
calculation of compensation in accident cases. Section 5 of the
Schedule deals with disability in non-fatal accidents and reads
as follows:
“5. Disability in non-fatal accidents:
G
G
H
H
The following compensation shall be payable in
case of disability to the victim arising out of nonfatal accidents: Loss of income, if any, for actual
period of disablement not exceeding fifty two
weeks.
YADAVA KUMAR v. DIVISIONAL MANAGER, NATIONAL
INSURANCE [ASOK KUMAR GANGULY, J.]
753
PLUS either of the following:(a)
(b)
In case of permanent total disablement the
amount payable shall be arrived at by
multiplying the annual loss of income by the
Multiplier applicable to the age on the date
of determining the compensation, or
In case of permanent partial disablement
such percentage of compensation which
would have been payable in the case of
permanent total disablement as specified
under item (a) above.
Injuries deemed to result in Permanent Total
Disablement/Permanent Partial Disablement
and percentage of loss of earning capacity
shall be as per Schedule I under Workmen’s
Compensation Act, 1923.”
11. Thus, the multiplier method is to be applied in cases
of injuries also and it has been applied in a number of accident
cases by High Courts and this Court.
12. This Court in Sunil Kumar Vs. Ram Singh Gaud and
others – 2008 ACJ 9, awarded compensation in case of injury
for loss of future earnings and applied the multiplier method for
calculation of the same. The same principle was recognized
by this Court in Priya Vasant Kalgutkar Vs. Murad Shaikh &
Ors. – AIR 2010 SC 40.
13. In Mukesh Kumar Sharma Vs. Ramdutt and Ors. –
2006 ACJ 1792, Madhya Pradesh High Court applied the
multiplier method keeping in mind the percentage by which the
injured person’s earning capacity was reduced. A similar
calculation was made by the Division Bench of Karnataka High
Court in Syed Nisar Ahmed Vs. The Managing Director,
Bangalore Metropolitan Transport Corporation – 2003 5 Karn.
L.J. 186.
754
A
B
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SUPREME COURT REPORTS
[2010] 10 S.C.R.
A
14. In this case, the appellant has sustained a fracture of
distal end of left radius with fracture of left ulnar styloid process
and fracture distal end of right radius with mild diastosis and
soft tissues swelling around wrist joint. The doctor has
assessed the disability at 33% in respect of the right upper limb
B and 21% towards left upper limb and 20% in respect of the
whole body, which prevents the appellant from painting in view
of multiple injuries sustained by him.
15. The Hon’ble High Court while granting compensation
refused to award any amount towards loss of future earning.
C
Though that point was specifically urged before the Hon’ble
High Court, the Hon’ble High Court refused any compensation
towards loss of future earning by, inter alia, holding that:
D
“We are of the view that, the said submission has no force
for the reason that, the appellant has not produced an iota
of document to substantiate his stand.”
16. We are unable to agree with the aforesaid view of the
High Court.
E
E
F
F
G
G
H
H
17. While assessing compensation in accident cases, the
High Court or the Tribunal must take a reasonably
compassionate view of things. It cannot be disputed that the
appellant being a painter has to earn his livelihood by virtue of
physical work. The nature of injuries which he admittedly
suffered, and about which the evidence of PW-2 is quite
adequate, amply demonstrates that carrying those injuries he
is bound to suffer loss of earning capacity as a painter and a
consequential loss of income is the natural outcome.
18. It goes without saying that in matters of determination
of compensation both the Tribunal and the Court are statutorily
charged with a responsibility of fixing a ‘just compensation’. It
is obviously true that determination of a just compensation
cannot be equated to a bonanza. At the same time the concept
of ‘just compensation’ obviously suggests application of fair and
YADAVA KUMAR v. DIVISIONAL MANAGER, NATIONAL
INSURANCE [ASOK KUMAR GANGULY, J.]
755
equitable principles and a reasonable approach on the part of
the Tribunals and Courts. This reasonableness on the part of
the Tribunal and Court must be on a large peripheral field. Both
the Courts and Tribunals in the matter of this exercise should
be guided by principles of good conscience so that the ultimate
result become just and equitable (See Mrs. Helen C. Rebello
and others Vs. Maharashtra State Road Transport Corpn. and
another – AIR 1998 SC 3191).
19. This Court also held that in the determination of the
quantum of compensation, the Court must be liberal and not
niggardly in as much as in a free country law must value life
and limb on a generous scale (See Hardeo Kaur and others
Vs. Rajasthan State Transport Corporation and another –
(1992) 2 SCC 567).
756
A
B
SUPREME COURT REPORTS
[2010] 10 S.C.R.
A Court for assessment of compensation on the aforesaid lines
but the accident took place in March 2003 and a remand to
the High Court for determination of compensation will further
delay the matter. Therefore, to shorten litigation, and having
regard to this Court’s power under Article 142 of the
B Constitution to do complete justice between the parties, this
Court itself assesses the compensation as follows:
Therefore, in the present case, the loss of future income
may be calculated using the multiplier method as follows:
C
20. The High Court and the Tribunal must realize that there
is a distinction between compensation and damage. The
expression compensation may include a claim for damage but
compensation is more comprehensive. Normally damages are
given for an injury which is suffered, whereas compensation
stands on a slightly higher footing. It is given for the atonement
of injury caused and the intention behind grant of compensation
is to put back the injured party as far as possible in the same
position, as if the injury has not taken place, by way of grant of
pecuniary relief. Thus, in the matter of computation of
compensation, the approach will be slightly more broad based
than what is done in the matter of assessment of damages. At
the same time it is true that there cannot be any rigid or
mathematical precision in the matter of determination of
compensation.
D
21. Going by these principles, as we must, this Court is
constrained to observe that in this case the approach of the
High Court in totally refusing to grant any compensation for loss
of future earning is not a correct one.
G
22. This Court could have remanded the matter to the High
H
C
Income of the appellant (as accepted by the High
Curt) is Rs.3,000/- p.m. Therefore, the yearly
income is Rs.36,000/-.
Multiplier according to age (30 years) as per
Schedule is 17.
D
Thus,the total comes to:
Rs.36,000/- x 17 = Rs.6,12,000/-.\
E
Percentage of disablement is 20%
E
Therefore, loss of future earnings would come to
Rs.1,22,400/-.
F
F
G
23. If this is added to the compensation provided by the
High Court in other categories, the total compensation comes
to Rs.1,22,400/- + Rs.72,000/-, that is Rs.1,94,400/-.
24. This Court, therefore, grants a lump sum of Rupees
Two Lakhs by way of compensation plus 8% interest as
granted by the High Court.
25. The appeal is allowed to the extent indicated above.
There will be no order as to costs.
N.J.
H
Appeal partly allowed.
758
[2010] 10 S.C.R. 757
LEELA GUPTA & ORS.
v.
STATE OF UTTAR PRADESH & ORS.
(Civil Appeal No. 5564 OF 2005)
AUGUST 31, 2010
A
A
B
B
[AFTAB ALAM AND R.M. LODHA, JJ.]
Motor Vehicles Act, 1939 – s. 110A – Fatal accident –
Claim petition – Award of compensation by tribunal –
Enhanced by High Court using multiplier of 16 – High Court
after reaching the compensation amount, deducting 1/3rd
therefrom towards imponderability and uncertainty of life – On
appeal, held: Ascertainment of multiplicand following
guidelines in Susamma Thomas* case by High Court, is
correct – However, capitalization of multiplicand on a
multiplier of 16 is on higher side – Therefore, multiplier
reduced to 14 – Reduction of 1/3rd of the compensation
amount towards imponderability and uncertainty of life not
correct – Once the multiplicand and multiplier are ascertained,
no further deduction needs to be made towards uncertainties
and other contingencies.
A 39 years old man died in a motor accident. His wife
and three children (the appellants) filed a claim petition
u/s. 110A of Motor Vehicles Act, 1939. The claims tribunal
held that the claimants were entitled to a sum of Rs.
2,61,800/- towards compensation with pendente lite and
future interest thereon @ 9% p.a.. On appeal, the High
Court after computing the annual income of the
deceased, applied multiplier of 16 and came to a sum of
Rs. 6,91,200 towards compensation. However,
considering imponderability and uncertainty of life, the
amount reached towards compensation was reduced by
1/3rd and thus the claimants were awarded Rs. 4,70,000..
757
C
D
E
F
G
H
SUPREME COURT REPORTS
[2010] 10 S.C.R.
The question for consideration, in the instant appeal
was as regards correctness of the decision of the High
Court in reducing the compensation assessed, by 1/3rd,
after ascertaining the multiplicand capitalized with the
multiplier of 16.
Partly allowing the appeal, the Court
HELD: 1.1 The purpose of award of compensation is
to put the dependants of the deceased, who had been
bread-winner of the family, in the same position
C financially as if he had lived his natural span of life; it is
not designed to put the claimants in a better financial
position in which they would otherwise have been, if the
accident had not occurred. At the same time, the
determination of compensation is not an exact science
D and the exercise involves an assessment based on
estimation and conjectures here and there as many
imponderable factors and unpredictable contingencies
have to be taken into consideration. The statutory rule
enacted in Section 110B of the Motor Vehicle 1939 Act,
E (now Section 168 of the Motor Vehicles Act, 1988) is
award of ‘just compensation’. [Para 3] [762-D-F]
1.2 The High Court ascertained the multiplicand or
the value of dependency at Rs. 3600/- per month keeping
in view the judgment of Supreme Court in Susamma
F Thomas* case. The High Court in ascertaining the
multiplicand has taken into account the guidelines laid
down in Susamma Thomas* case, which warrants no
reconsideration. It is neither proper nor desirable to
recalculate the multiplicand at this distance of time in
G jurisdiction under Article 136 of the Constitution by
applying the guidelines indicated in Sarla Verma** case.
However, capitalization of multiplicand on a multiplier of
16 is on the higher side and multiplier of 14, in the facts
of the instant case, would meet the ends of justice. [Para
H 8] [771-C-E]
LEELA GUPTA & ORS. v. STATE OF UTTAR
PRADESH & ORS.
759
1.3 The High Court was clearly in error in reducing
by 1/3rd the compensation assessed, after ascertainment
of multiplicand capitalized on a particular multiplier since
the very method of ascertainment of multiplicand takes
into consideration many factors of imponderables and the
contingencies of the future. Once the multiplicand and
multiplier are ascertained, the assessment of damages to
compensate the dependants is arrived at by multiplying
the two and no further deduction needs to be made
towards uncertainties and other contingencies. [Para 9]
[771-F]
1.4 The compensation awarded by the High Court in
the sum of Rs. 4,70,000/- is enhanced to Rs. 6,04,800/which is fair, just and equitable. The appellants shall also
be entitled to 9% simple interest per annum on the
enhanced amount from the date of filing of claim petition
until the date of its actual payment. [Para 9] [772-A-B]
*General Manager, Kerala State Road Transport
Corporation, Trivandrum v. Susamma Thomas (Mrs.) and
Ors. (1994) 2 SCC 176 – relied on.
760
A
Taff Vale Railway Co. v. Jenkins (1913) AC 1; Davies
[2010] 10 S.C.R.
A and Anr. v. Powell Duffryn Associated Collieries Ltd. (1942)
1 All ER 657; Nance v. British Columbia Electric Railway Co.
Ltd. (1951) 2 All ER 448 – referred to.
Case Law Reference:
B
C
D
E
B
C
D
E
**Sarla Verma (Smt.) and Ors. v. Delhi Transport
Corporation and Anr. (2009) 6 SCC 121– held inapplicable.
U.P. State Road Transport Corporation and Ors. v. Trilok
Chandra and Ors. (1996) 4 SCC 362; Abati Bezbaruah v.
Geological Survey of India (2003) 2 SCC 148; Fakeerappa
and Anr. v. Karnataka Cement Pipe Factory and Ors. (2004)
2 SCC 473; T.N. State Transport Corpn. Ltd. v. S. Rajapriyaj
and Ors. (2005) 6 SCC 236; New India Assurance Co. Ltd.
v. Charlie and Anr. (2005) 10 SCC 720; U.P. State Road
Transport Corporation v. Krishna Bala and Ors. (2006) 6 SCC
249; Oriental Insurance Co. Ltd. v. Meena Variyal and Ors.
(2007) 5 SCC 428; Reshma Kumari and Ors. v. Madan
Mohan and Anr. (2009) 13 SCC 422 – referred to.
SUPREME COURT REPORTS
(1994) 2 SCC 176
relied on
Para 4
(1996) 4 SCC 362
referred to
Para 5
(2009) 6 SCC 121
held inapplicable
Para6
(2009) 13 SCC 422
referred to
Para 6
(2003) 2 SCC 148
referred to
Para 6
(2004) 2 SCC 473
referred to
Para 6
(2005) 6 SCC 236
referred to
Para 6
(2005) 10 SCC 720
referred to
Para 6
(2006) 6 SCC 249
referred to
Para 6
(2007) 5 SCC 428
referred to
Para 6
(1942) 1 All ER 657
referred to
Para 6
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
5564 of 2005.
F
F
From the Judgment & Order dated 03.09.2003 of the High
Court of Judicature at Allahabad in FAFO No. 385 of 1987.
T. Mahipal for the Appellants.
G
T.N. Singh, Shekhar Raj Sharma, Chandra Prakash
Pandey
for the Respondents.
G
The Judgment of the Court was delivered by
H
R.M. LODHA, J. 1. Ganga Prasad Gupta—the deceased,
the husband of the first appellant and father of second, third and
H fourth appellant, was killed in a motor accident on July 8, 1985.
LEELA GUPTA & ORS. v. STATE OF UTTAR
PRADESH & ORS. [R.M. LODHA, J.]
761
He was then aged 39 and was officiating Executive Engineer
in the Irrigation Department, State of Uttar Pradesh. Had he
lived, it would have been 18 years or so before he reached the
age of superannuation (i.e. 58 years). After superannuation, he
would have qualified for pension. His wife and three children
filed a claim petition under Section 110A of the Motor Vehicles
Act, 1939 (for short, ‘the 1939 Act’) before the Motor Accident
Claims Tribunal, Mirzapur (for short, `the Tribunal’) against the
respondents claiming compensation in the sum of Rs. 7,00,000/
-. His gross salary on the date of accident was Rs. 2,680/- per
month. The Tribunal held that deceased would have contributed
Rs. 2,200/- per month (Rs. 26,400/- per year) to the family and
by applying a multiplier of 18, reached the finding that the
pecuniary loss to widow and children would be Rs. 4,75,200/up to the age of his retirement. The Tribunal then deducted 1/
3rd of the above considering the amount being paid in lump
sum and uncertainty in life and by further deducting a sum of
Rs. 40,000/- towards group insurance scheme, assessed
compensation to the extent of Rs. 2,76,800/-. An amount of Rs.
15,000/- having been already paid to the claimants towards no
fault liability, the Tribunal in its Award dated February 24, 1987
held that claimants are entitled to a sum of Rs. 2,61,800/- and
directed the respondents to pay the said amount with pendente
lite and future interest thereon @ 9% per annum.
2. On appeal by the claimants, the High Court held that the
claimants were entitled to Rs. 4,70,000/- as compensation
along with 9% simple interest per annum from the date of the
claim petition until the actual payment was made. The High
Court considered the matter thus :
“……Taking income of deceased at Rs. 2,700/- per month,
the same can be assumed safely as Rs. 2700 X 2 = 5,400/
- had the deceased lived. Now, 1/3rd is to be deduced
being the amount spent on deceased himself towards his
personal expenses, it gives us a figure of Rs. 3,600/- per
month. Thus, the expected benefit to be derived by the
762
A
A
B
B
C
D
E
F
G
H
SUPREME COURT REPORTS
[2010] 10 S.C.R.
claimants comes to Rs. 3,600 X 12 = 43,200/- per annum
as contribution towards his family. Taking into account the
age of the deceased, we find that multiplier of 16 is
available. The annual income of Rs. 43,200/- being
multiplied by 16, comes to Rs. 6,91,200/-. However,
considering imponderability and uncertainty of life, this
amount is reduced by 1-3rd. It gives the figure of Rs.
4,70,000/- (on rounding).”
3. The conventional approach in England for over a century
has been that the damages are to be assessed on the basis
C
that the fundamental purpose of an award is to achieve as nearly
as possible full compensation to the plaintiff for the injuries
sustained. This rule has been accepted in fatal accident actions
as well. The House of Lords in Taff Vale Railway Co. v.
Jenkins1 laid down the test that award of damages in fatal
D accident action is compensation for the reasonable expectation
of pecuniary benefit by the deceased’s family. The purpose of
award of compensation is to put the dependants of the
deceased, who had been bread-winner of the family, in the
same position financially as if he had lived his natural span of
E life; it is not designed to put the claimants in a better financial
position in which they would otherwise have been if the accident
had not occurred. At the same time, the determination of
compensation is not an exact science and the exercise involves
an assessment based on estimation and conjectures here and
F there as many imponderable factors and unpredictable
contingencies have to be taken into consideration. The statutory
rule enacted in Section 110B of the 1939 Act (now Section 168
of the Motor Vehicles Act, 1988) is award of ‘just
compensation’.
G
4. In General Manager, Kerala State Road Transport
Corporation, Trivandrum v. Susamma Thomas (Mrs.) and
Ors.2 this Court extensively considered the English decisions
H
1.
[1913] AC 1.
2.
(1994) 2 SCC 176.
LEELA GUPTA & ORS. v. STATE OF UTTAR
PRADESH & ORS. [R.M. LODHA, J.]
763
as well as previous decisions of this Court and also the
decisions of various high courts and laid down that the multiplier
method is logically sound and legally well established and must
be followed; a departure from which can only be justified in rare
and extraordinary circumstances and very exceptional cases.
In para 13 of the Report, this Court stated as follows :
“13. The multiplier method involves the ascertainment of
the loss of dependency or the multiplicand having regard
to the circumstances of the case and capitalizing the
multiplicand by an appropriate multiplier. The choice of the
multiplier is determined by the age of the deceased (or that
of the claimants whichever is higher) and by the calculation
as to what capital sum, if invested at a rate of interest
appropriate to a stable economy, would yield the
multiplicand by way of annual interest. In ascertaining this,
regard should also be had to the fact that ultimately the
capital sum should also be consumed-up over the period
for which the dependency is expected to last.”
764
A
A
B
B
C
C
D
In para 17, it was further stated:
“17. The multiplier represents the number of years’
purchase on which the loss of dependency is capitalised.
Take for instance a case where annual loss of dependency
is Rs. 10,000. If a sum of Rs 1,00,000 is invested at 10%
annual interest, the interest will take care of the
dependency, perpetually. The multiplier in this case works
out to 10. If the rate of interest is 5% per annum and not
10% then the multiplier needed to capitalise the loss of the
annual dependency at Rs. 10,000 would be 20. Then the
multiplier, i.e., the number of years’ purchase of 20 will yield
the annual dependency perpetually. Then allowance to
scale down the multiplier would have to be made taking
into account the uncertainties of the future, the allowances
for immediate lump sum payment, the period over which
the dependency is to last being shorter and the capital feed
E
F
SUPREME COURT REPORTS
[2010] 10 S.C.R.
also to be spent away over the period of dependency is
to last etc. Usually in English Courts the operative multiplier
rarely exceeds 16 as maximum. This will come down
accordingly as the age of the deceased person (or that of
the dependants, whichever is higher) goes up.”
While dealing with the aspect of multiplicand, the Court stated
that in ascertainment of the multiplicand many factors have to
be put into the scales to evaluate the contingencies of the
future.
5. The case of Susamma Thomas2 arose out of the 1939
Act and the appeal was decided by this Court on January 6,
1993. The 1939 Act stood repealed by the Motor Vehicles Act,
1988 (for short, ‘the 1988 Act’). After decision of this Court in
Susamma Thomas2 , the 1988 Act was amended and, inter
D alia, Section 163A was inserted along with the Second
Schedule w.e.f. November 14, 1994. Vide Section 163A, the
special provisions with regard to payment of compensation on
structured formula basis were introduced in the 1988 Act and
the Second Schedule provided for compensation for third party
E fatal accident/injury cases claims. Under the Second Schedule,
the maximum multiplier could be upto 18 and not 16 as was
laid down in Susamma Thomas 2 . In U.P. State Road
Transport Corporation and Ors. v. Trilok Chandra and Ors.3,
a three-Judge Bench of this Court considered change in
F statutory provisions, particularly, insertion of Section 163A and
Second Schedule in the 1988 Act and observed thus :
G
G
H
H
“17. The situation has now undergone a change with the
enactment of the Motor Vehicles Act, 1988, as amended
by Amendment Act 54 of 1994. The most important
change introduced by the amendment insofar as it relates
to determination of compensation is the insertion of
Sections 163-A and 163-B in Chapter XI entitled
“Insurance of Motor Vehicles against Third Party Risks”.
3.
(1996) 4 SCC 362.
LEELA GUPTA & ORS. v. STATE OF UTTAR
PRADESH & ORS. [R.M. LODHA, J.]
765
Section 165-A begins with a non obstante clause and
provides for payment of compensation, as indicated in the
Second Schedule, to the legal representatives of the
deceased or injured, as the case may be. Now if we turn
to the Second Schedule, we find a table fixing the mode
of calculation of compensation for third party accident
injury claims arising out of fatal accidents. The first column
gives the age group of the victims of accident, the second
column indicates the multiplier and the subsequent
horizontal figures indicate the quantum of compensation
in thousand payable to the heirs of the deceased victim.
According to this table the multiplier varies from 5 to 18
depending on the age group to which the victim belonged.
Thus, under this Schedule the maximum multiplier can be
up to 18 and not 16 as was held in Susamma Thomas
case.”
6. The short question presented in this appeal is whether
the High Court was in error in reducing by 1/3rd the
compensation assessed after ascertainment of multiplicand
capitalized with the multiplier of 16. But before we pass to the
above question, we may notice two recent decisions of this
Court, namely, (1) Sarla Verma (Smt.) & Ors., v. Delhi
Transport Corporation & Anr.4 and (2) Reshma Kumari & Ors.
v. Madan Mohan & Anr.5 In the case of Sarla Verma4, a twoJudge bench of this Court considered Susamma Thomas2
and Trilok Chandra 3; few other decisions, namely, Abati
Bezbaruah v. Geological Survey of India6; Fakeerappa & Anr.
v. Karnataka Cement Pipe Factory & Ors. 7; T.N. State
Transport Corpn. Ltd. v. S. Rajapriya & Ors. 8; New India
4.
(2009) 6 SCC 121.
5.
(2009) 13 SCC 422.
6.
(2003) 2 SCC 148.
7.
(2004) 2 SCC 473.
8.
(2005) 6 SCC 236.
766
A
B
SUPREME COURT REPORTS
A Assurance Co. Ltd. v. Charlie & Anr. 9 ; U.P.State Road
Transport Corpn. v. Krishna Bala & Ors. 10 and Oriental
Insurance Co. Ltd. v. Meena Variyal & Ors.11 and also two
English decisions – namely; Davies & Anr. v. Powell Duffryn
Associated Collieries Ltd.12 and Nance v. British Columbia
13
B Electric Railway Co. Ltd. and laid down certain principles
relating to assessment of compensation in cases of death.
While dealing with the aspect of future prospects, in paragraph
24 of the Report, it was stated as follows:-
C
C
D
D
E
E
F
F
G
G
“In Susamma Thomas [(1994) 2 SCC 176] this Court
increased the income by nearly 100%, in Sarla Dixit
[(1996) 3 SCC 179] the income was increased only by
50% and in Abati Bezbaruah [(2003) 2 SCC 148] the
income was increased by a mere 7%. In view of the
imponderables and uncertainties, we are in favour of
adopting as a rule of thumb, an addition of 50% of actual
salary to the actual salary income of the deceased towards
future prospects, where the deceased had a permanent
job and was below 40 years. (Where the annual income
is in the taxable range, the words “actual salary” should be
read as “actual salary less tax”). The addition should be
only 30% if the age of the deceased was 40 to 50 years.
There should be no addition, where the age of the
deceased is more than 50 years. Though the evidence
may indicate a different percentage of increase, it is
necessary to standardise the addition to avoid different
yardsticks being applied or different methods of calculation
being adopted. Where the deceased was self-employed
or was on a fixed salary (without provision for annual
increments, etc.), the courts will usually take only the actual
9.
(2005) 10 SCC 720.
10. (2006) 6 SCC 249.
11. (2007) 5 SCC 428.
12. (1942) 1 All ER 657.
H
[2010] 10 S.C.R.
H
13. (1951) 2 All ER 448.
767
LEELA GUPTA & ORS. v. STATE OF UTTAR
PRADESH & ORS. [R.M. LODHA, J.]
income at the time of death. A departure therefrom should
be made only in rare and exceptional cases involving
special circumstances.”
As regards deduction for personal expenses, this Court
stated thus:
“Though in some cases the deduction to be made
towards personal and living expenses is calculated on the
basis of units indicated in Trilok Chandra [(1996) 4 SCC
362], the general practice is to apply standardised
deductions. Having considered several subsequent
decisions of this Court, we are of the view that where the
deceased was married, the deduction towards personal
and living expenses of the deceased, should be one-third
(1/3rd) where the number of dependent family members
is 2 to 3, one-fourth (1/4th) where the number of dependent
family members is 4 to 6, and one-fifth (1/5th) where the
number of dependent family members exceeds six.”
With regard to multiplier in the cases falling under Section 166
of 1988 Act, this Court held that Davies12 method is applicable
and set out the following Table:
Age of the
Deceased
Multiplier
Scale as
envisaged
in
Susamma
Thomas
Multiplier
scale as
adopted
by Trilok
Chandra
Multiplier
scale in
Trilok
Chandra
as
clarified
in Charlie
Multiplier
specified
in
Second
Column
in the
Table in
Second
Schedule
to the
MV Act
Multiplier
actually
used in
Second
Schedule
to the MV
Act (as
seen from
the
quantum
of
compesation)
(1)
(2)
(3)
(4)
(5)
(6)
Upto 15 yrs
-
-
-
15
20
768
A
B
C
D
E
A
B
C
D
SUPREME COURT REPORTS
[2010] 10 S.C.R.
15 to 20 yrs
16
18
18
16
19
21 to 25 yrs
15
17
18
17
18
26 to 30 yrs
14
16
17
18
17
31 to 35 yrs
13
15
16
17
16
36 to 40 yrs
12
14
15
16
15
41 to 45 yrs
11
13
14
15
14
46 to 50 yrs
10
12
13
13
12
51 to 55 yrs
9
11
11
11
10
56 to 60 yrs
8
10
09
8
8
61 to 65 yrs
6
08
07
5
6
Above 65 Yrs
5
05
05
5
5
After setting out the aforesaid Table, this Court stated as
E follows:-
F
F
G
G
H
H
“Tribunals/courts adopt and apply different operative
multipliers. Some follow the multiplier with reference to
Susamma Thomas [(1994) 2 SCC 176] [set out in
Column (2) of the table above]; some follow the multiplier
with reference to Trilok ChandraI[(1996) 4 SCC 362], [set
out in Column (3) of the table above]; some follow the
multiplier with reference to Charlie [(2005) 10 SCC 720]
[set out in Column (4) of the table above]; many follow the
multiplier given in the second column of the table in the
Second Schedule of the MV Act [extracted in Column (5)
of the table above]; and some follow the multiplier actually
adopted in the Second Schedule while calculating the
quantum of compensation [set out in Column (6) of the
table above]. For example if the deceased is aged 38
LEELA GUPTA & ORS. v. STATE OF UTTAR
PRADESH & ORS. [R.M. LODHA, J.]
769
years, the multiplier would be 12 as per Susamma
Thomas, 14 as per Trilok Chandra, 15 as per Charlie,
or 16 as per the multiplier given in Column (2) of the
Second Schedule to the MV Act or 15 as per the multiplier
actually adopted in the Second Schedule to the MV Act.
Some tribunals, as in this case, apply the multiplier of 22
by taking the balance years of service with reference to
the retiring age. It is necessary to avoid this kind of
inconsistency. We are concerned with cases falling under
Section 166 and not under Section 163-A of the MV Act.
In cases falling under Section 166 of the MV Act, Davies
method is applicable.”
We therefore hold that the multiplier to be used should be
as mentioned in Column (4) of the table above (prepared
by applying Susamma Thomas, Trilok Chandra and
Charlie), which starts with an operative multiplier of 18 (for
the age groups of 15 to 20 and 21 to 25 years), reduced
by one unit for every five years, that is M-17 for 26 to 30
years, M-16 for 31 to 35 years, M-15 for 36 to 40 years,
M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then
reduced by two units for every five years, that is, M-11 for
51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65
years and M-5 for 66 to 70 years.”
7. In Reshma Kumari5, a two-Judge bench of this Court
again noticed a long line of Indian and English cases, most of
which were noticed in Sarla Verma4 (but Sarla Verma4 was not
noticed) and in view of divergence of opinion to the question
whether the multiplier specified in the Second Schedule should
be taken to be a guide for calculation of the amount of
compensation payable in a case falling under Section 166 of
the 1988 Act referred the matter to the larger bench.
8. The issue whether the multiplier specified in Second
Schedule for the purposes of Section 163A of 1988 Act could
be taken to be guide for computation of amount of
compensation in a motor accident claim case falling under
770
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SUPREME COURT REPORTS
[2010] 10 S.C.R.
A Section 166 of the 1988 Act is not yet authoritatively decided
and is pending consideration before the larger bench. Insofar
as present appeal is concerned it arises out of a motor
accident claim filed under Section 110-A of the 1939 Act and,
therefore, the Second Schedule that refers to Section 163A of
B the 1988 Act may not be of much guidance. To revert to the
question stated above, it must be stated immediately that
deceased at the time of accident had settled and stable job in
the Irrigation Department, Government of U.P. He was
officiating as Executive Engineer and had fair chance of regular
C promotion to the post of Executive Engineer and
Superintending Engineer in due course of time; he had about
18 years of service left before superannuation. He would have
got annual increments etc. besides promotion during this period
of 18 years. But vicissitudes of life cannot be ignored, he might
not have lived up to that age; he might have been dismissed
D
from service. In a fatal accident case, everything that might have
happened to the deceased after the date of death remains
uncertain. That his gross salary at the time of accident was Rs.
2680/-, is reflected from his last pay certificate. Having regard
to the prospects of advancement and future career, the High
E Court assumed the income of the deceased at Rs. 5400/- per
month by doubling the last gross salary and making it a round
figure. The High Court then deducted 1/3rd amount towards his
personal expenditure and arrived at a figure of Rs. 3600/- per
month as the expected contribution by the deceased to the
F family and applying a multiplier of 16, assessed the
dependency at Rs. 6,91,200/- but, however, made a further
deduction by 1/3rd considering imponderability and uncertainty
of life and thereby awarded a sum of Rs. 4,70,000/- only as
compensation. We have seen that in Susamma Thomas2
G 100% increase to the income which the deceased was having
at the time of accident was estimated as the gross income of
the deceased. On the other hand, in Sarla Verma4 this Court
prescribed the rule of thumb i.e., an addition of 50% towards
future prospects where the deceased had a permanent job and
H was below 40 years. As regards deduction to be made towards
LEELA GUPTA & ORS. v. STATE OF UTTAR
PRADESH & ORS. [R.M. LODHA, J.]
771
personal expenditure, in Sarla Verma4 this Court stated that
where the deceased was married and where the number of
dependant family members is 4 to 6 then 1/4th of the gross
income should be deducted while in Susamma Thomas2, the
conventional 1/3rd of the gross income was deducted on that
count in the absence of any evidence. Then as per Table set
out in Sarla Verma4, if the age of deceased is 36 to 40 years,
multiplier of 15 is applicable whereas in Susamma Thomas2
the loss of dependency was capitalized on a multiplier of 12
(the deceased was 39 years of age). The question is whether
value of dependency should be recalculated in this appeal. We
do not think so. The High Court ascertained the multiplicand
or in other words the value of dependency at Rs. 3600/- per
month keeping in view the judgment of this Court in Susamma
Thomas2. In our opinion, it is neither proper nor desirable to
recalculate the multiplicand at this distance of time in jurisdiction
under Article 136 of the Constitution by applying the guidelines
indicated in Sarla Verma4. The High Court has taken into
account in ascertaining the multiplicand the guidelines laid
down in Susamma Thomas2 which, in our view, warrants no
reconsideration. However, we think that capitalization of
multiplicand on a multiplier of 16 is on the higher side and
multiplier of 14 in the facts of the case such as the present one
would meet the ends of justice. In this way, the appellants
become entitled to Rs. 6,04,800/- as compensation which, in
our opinion, is fair, just and equitable. Before we close, however,
it has to be held and we hold that the High Court was clearly in
error in reducing by 1/3rd the compensation assessed after
ascertainment of multiplicand capitalized on a particular
multiplier since the very method of ascertainment of
multiplicand takes into consideration many factors of
imponderables and the contingencies of the future. Once the
multiplicand and multiplier are ascertained, the assessment of
damages to compensate the dependants is arrived at by
multiplying the two and no further deduction needs to be made
towards uncertainties and other contingencies.
772
A
B
D
E
F
[2010] 10 S.C.R.
A
9. In the result, the appeal is allowed in part and the
compensation awarded by the High Court in the sum of Rs.
4,70,000/- is enhanced to Rs. 6,04,800/-. The appellants shall
also be entitled to 9% simple interest per annum on the
enhanced amount from the date of filing of claim petition until
B the date of its actual payment. The parties shall bear their own
costs.
K.K.T
C
SUPREME COURT REPORTS
Appeal partly allowed.
[2010] 10 S.C.R. 773
INCHARGE OFFICER AND ANR.
v.
SHANKAR SHETTY
(Civil Appeal No. 7213 of 2010)
AUGUST 31, 2010
774
A
B
[AFTAB ALAM AND R.M. LODHA, JJ.]
Industrial Disputes Act, 1947: s.25F – Daily wager
appointed in 1978 – Worked intermittently for 7 years –
Terminated from service in 1985 i.e. about 25 years back –
Claim for re-instatement and back wages on account of
violation of s.25 – Held: Order of re-instatement would not
automatically follow – Instead monetary compensation would
subserve the ends of justice – Compensation of Rs. 1,00,000/
- in lieu of re-instatement just and equitable – Equity –
Compensation.
The respondent was engaged as daily wager by the
appellants in 1978. He worked for about 7 years. In 1985,
he was terminated from service. He raised industrial
dispute challenging his termination on the ground that
the procedure under Section 25F of the Industrial
Disputes Act was not followed. The Labour Court held
that Section 25F of the Act was not attracted since the
workman failed to prove that he had worked
continuously for 240 days in the year preceding his
termination. Respondent filed writ petition before the High
Court. The High Court directed reinstatement of the
respondent into service but without back wages and
continuity of service. The employer filed the instant
appeal.
C
D
E
F
G
C
Jagbir Singh v. Haryana State Agriculture Marketing
Board and Anr. (2009) 15 SCC 327; Senior Superintendent
Telegraph (Traffic) Bhopal v. Santosh Kumar Seal & Ors
2010(6) SCC 773 – relied on.
U.P. State Brassware Corporation Ltd. & Anr. v. Uday
D Narain Pandey (2006)1 SCC 479; Uttaranchal Forest
Development Corporation vs. M.C. Joshi (2007) 9 SCC 353;
State of M.P. & Ors. v. Lalit Kumar Verma (2007)1 SCC 575;
Madhya Pradesh Admn.v. Tribhuban (2007)9 SCC 748; Sita
Ram & Ors. v. Moti Lal Nehru Farmers Training Institute
E (2008) 5 SCC 75; Jaipur Development Authority v.
Ramasahai & Anr. (2006)11 SCC 684; Ghaziabad
Development Authority & Anr. v. Ashok Kumar & Anr. (2008)
4 SCC 261; Mahboob Deepak v. Nagar Panchayat, Gajraula
& Anr. (2008)1 SCC 575 – referred to.
F
G
HELD: The High Court erred in granting relief of
H
[2010] 10 S.C.R.
A reinstatement to the respondent. The respondent was
engaged as daily wager in 1978 and his engagement
continued for about 7 years intermittently upto
September 6, 1985 i.e. about 25 years back. In such a
case, the relief of reinstatement cannot be justified and
B instead monetary compensation would meet the ends of
justice. The compensation of Rs. 1,00,000/- in lieu of
reinstatement shall be appropriate, just and equitable.
[Para 5] [778-C-E]
Partly allowing the appeal, the Court
773
SUPREME COURT REPORTS
H
Case Law Reference:
(2009)15 SCC 327
relied on
Para 2, 5
(2006)1 SCC 479
referred to
Para 2
(2007) 9 SCC 353
referred to
Para 2
(2007)1 SCC 575
referred to
Para 2
(2007) 9 SCC 748
referred to
Para 2
(2008) 5 SCC 75
referred to
Para 2
INCHARGE OFFICER AND ANR. v. SHANKAR
SHETTY
775
(2006)11 SCC 684
referred to
Para 2
(2008) 4 SCC 261
referred to
Para 2
(2008) 1 SCC 575
referred to
Para 2
2010(6) SCC 773
relied on
Para 3
776
A
B
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
7213 of 2010.
From the Judgment & Order dated 09.12.2004 of the High
Court of Bangalore in W.A. No. 7330 of 2001.
C
C
D
D
E
E
“It is true that the earlier view of this Court articulated in
many decisions reflected the legal position that if the
termination of an employee was found to be illegal, the
relief of reinstatement with full back wages would ordinarily
follow. However, in recent past, there has been a shift in
the legal position and in a long line of cases, this Court
has consistently taken the view that relief by way of
reinstatement with back wages is not automatic and may
be wholly inappropriate in a given fact situation even
though the termination of an employee is in contravention
of the prescribed procedure. Compensation instead of
reinstatement has been held to meet the ends of justice.
The Judgment of the Court was delivered by
2. The only question to be considered in this appeal by
special leave is with regard to the relief of reinstatement
granted to the respondent by the Single Judge of the High Court
of Karnataka in his judgment and order dated August 13, 2001
and affirmed by the Division Bench vide its judgment and order
dated December 9, 2004 in the writ appeal. Should an order
of reinstatement automatically follow in a case where the
engagement of a daily wager has been brought to end in
violation of Section 25 F of the Industrial Disputes Act, 1947
(for short ‘ID Act’)? The course of decisions of this Court in
recent years has been uniform on the above question. In the
case of Jagbir Singh v. Haryana State Agriculture Marketing
Board and Anr.1, delivering the judgment of this Court, one of
us (R.M. Lodha, J.) noticed some of the recent decisions of this
Court – namely, U.P. State Brassware Corporation Ltd. & Anr.
v. Uday Narain Pandey 2; Uttranchal Forest Development
1.
(2009) 15 SCC 327.
2.
(2006) 1 SCC 479.
F
F
G
G
H
[2010] 10 S.C.R.
A Corporation vs. M.C. Joshi3; State of M.P. & Ors. v. Lalit
Kumar Verma4; Madhya Pradesh Admn v. Tribhuban5; Sita
Ram & Ors. v. Motil Lal Nehru Farmers Training Institute6;
Jaipur Development Authority v. Ramasahai & Anr. 7 ;
Ghaziabad Development Authority & Anr. v. Ashok Kumar &
8
B Anr. and Mahboob Deepak v. Nagar Panchayat, Gajraula &
Anr.9 and stated as follows:
Sanjay R. Hegde, Ramesh Kr. Mishra, Krutin Joshi, Vikrant
Yadav for the Appellants.
R.M. LODHA, J. 1. Leave granted.
SUPREME COURT REPORTS
H
***********
It would be, thus, seen that by a catena of decisions in
recent time, this Court has clearly laid down that an order
of retrenchment passed in violation of Section 25-F
although may be set aside but an award of reinstatement
should not, however, be automatically passed. The award
of reinstatement with full back wages in a case where the
workman has completed 240 days of work in a year
3.
(2007) 9 SCC 353.
4.
(2007) 1 SCC 575.
5.
(2007) 9 SCC 748.
6.
(2008) 5 SCC 75.
7.
(2006) 11 SCC 684.
8.
(2008) 4 SCC 261.
9.
(2008) 1 SCC 575.
INCHARGE OFFICER AND ANR. v. SHANKAR
777
SHETTY [R.M. LODHA, J.]
preceding the date of termination, particularly, daily wagers
has not been found to be proper by this Court and instead
compensation has been awarded. This Court has
distinguished between a daily wager who does not hold a
post and a permanent employee”.
778
A
3. Jagbir Singh1 has been applied very recently in the case
of Senior Superintendent Telegraph (Traffic) Bhopal v.
Santosh Kumar Seal & Ors. (Civil Appeal No. 3815 of 2010)
decided on April 26, 2010 wherein this Court stated:
B
“In view of the aforesaid legal position and the fact that the
workmen were engaged as daily wagers about 25 years
back and they worked hardly for 2 or 3 years, relief of
reinstatement and back wages to them cannot be said to
be justified and instead monetary compensation would
subserve the ends of justice”.
C
4. Shankar Shetty - the respondent was initially engaged
as daily wager by the appellants in 1978. He worked for 57
days in that year. The respondent had also worked for 316½
days in 1979, 335½ days in 1980, 242½ days in 1981, 33½
days in 1982, 10½ days in 1983, 103 days in 1984 and 50
days in 1985. According to him he was terminated from service
on September 6, 1985 without following the procedure
prescribed in Section 25 F of the ID Act . He raised industrial
dispute relating to his retrenchment which was referred for
adjudication to the Labour Court, Mysore but later on the
dispute was transferred to the Labour Court, Chickmagalur. The
Labour Court, Chickmagalur by its award on December 21,
1994 rejected the respondent’s claim. The Labour Court held
that Section 25 F of the ID Act was not attracted since the
workman failed to prove that he had worked continuously for
240 days in the calendar year preceding his termination on
September 6, 1985. The respondent challenged the award
passed by the Labour Court by filing a writ petition before the
Karnataka High Court. The Single Judge of the High Court
overturned the finding of the Labour Court about non-
D
E
F
G
H
SUPREME COURT REPORTS
[2010] 10 S.C.R.
A applicability of Section 25 F and held that Section 25 F of the
ID Act was attracted and the procedure provided therein having
not been followed, the termination of respondent (petitioner
therein) was illegal. The Single Judge, accordingly, vide his
judgment and order dated August 13, 2001 directed
B reinstatement of the respondent into service but without back
wages and continuity of service. The present appellants
challenged the judgment and order of the Single Judge in writ
appeal before Division Bench but without any success. On
December 9, 2004, the writ appeal preferred by the present
C appellants was dismissed by the Division Bench.
5. We think that if the principles stated in Jagbir Singh1
and the decisions of this Court referred to therein are kept in
mind, it will be found that the High Court erred in granting relief
of reinstatement to the respondent. The respondent was
D engaged as daily wager in 1978 and his engagement
continued for about 7 years intermittently upto September 6,
1985 i.e. about 25 years back. In a case such as the present
one, it appears to us that relief of reinstatement cannot be
justified and instead monetary compensation would meet the
E ends of justice. In our considered opinion, the compensation
of Rs. 1,00,000/- (Rupees Onc lac) in lieu of reinstatement shall
be appropriate, just and equitable. We order accordingly. Such
payment shall be made within 6 weeks from today failing which
the same shall carry interest at the rate of 9 per cent per annum.
F
6. The appeal is allowed to the above extent. Since the
respondent has not chosen to appear despite service of notice,
there will be no order as to costs.
D.G.
Appeal partly allowed.
780
[2010] 10 S.C.R. 779
GRID CORPORATION OF ORISSA LTD. AND ORS.
v.
EASTERN METALS AND FERRO ALLOYS AND ORS.
(Civil Appeal Nos. 5842-5889 of 1998)
AUGUST 31, 2010
A
B
[R.V. RAVEENDRAN AND H.L. GOKHALE, JJ.]
Orissa Electricity Reform Act, 1995: s.14(iv) –
Provisional licence issued by State Government in exercise
of power under s.14(iv) – Words “charges made by the
licencee not to exceed on average 117% of those permitted
under the interim tariffs in force on 1.4.1996” used in Clause
9.1 of the licence – Correct interpretation of – Held: The use
of the words “charges made by the licencee” and the words
“shall not exceed on average 117%” necessarily indicates that
the rates fixed by the licencee should not result in an increase
in realization or revenue in excess of 17% of what it would
have realized with reference to the tariff rates that were earlier
in force under the interim tariff – “Charges made by the
licencee,” therefore, refers to the total revenue by sale of
electricity to the different categories of consumers – The word
‘on average’ used in clause 9.1 gives the discretion to
licencee to charge tariff rates with different increases
depending upon the category of consumers, so long as the
overall increase in revenue, that is, the “charges made” by the
licencee, does not exceed 17% – Any other interpretation
would render the words ‘on average’ otiose and have the effect
of substituting the words ‘tariff rate’ for the word ‘charges’ –
Interpretation of statutes – Electricity.
Administrative law: Opinion of technical body
(Electricity Regulatory Commission) – Acceptability of – Held:
The opinion of a technical body in regard to purely technical
matters deserves acceptance and should not be interfered,
unless it is arbitrary or unreasonable.
779
C
D
E
F
G
H
SUPREME COURT REPORTS
[2010] 10 S.C.R.
Interpretation of statutes: Purposive construction –
Held: The golden rule of interpretation is that the words of a
statute have to be read and understood in their natural,
ordinary and popular sense – Where, however, the words used
are capable of bearing two or more constructions, it is
B necessary to adopt purposive construction, to identify the
construction to be preferred – Such an exercise involving
ascertainment of the object of the provision and choosing the
interpretation that would advance the object of the provision
can be undertaken, only where the language of the provision
C is capable of more than one construction.
A
By virtue of Section 14(iv) of the Orissa Electricity
Reform Act, 1995, the State Government is authorized to
grant provisional licences for carrying on the business
of transmission or supply of electricity. In exercise of the
D power under the said section, the State Government, by
notification dated 30.3.1996, issued three licences to the
appellant subject to the terms and conditions mentioned
in those licences. The appellant took over the
transmission, distribution and supply of electricity from
E the Orissa State Electricity Board (OSEB) with effect from
1.4.1996. Clause 9 of the licences was related to tariffs.
Clause 9.1 stated that the charges made by the licencee
should not exceed on average 117% of those permitted
under the interim tariffs in force on 1.4.1996. The interim
F tariffs in force as on 1.4.1996, referred to in the said
clause 9.1 were the tariffs contained in the Notification
dated 28.10.1995 issued by the OSEB, predecessor of the
appellant.
By notification dated 13.5.1996, the appellant revised/
prescribed different tariff rates for different categories of
consumers in supersession of the tariff rates prescribed
in the OSEB Notification dated 28.10.1995. Several writ
petitions were filed before the High Court, challenging (i)
the validity of Section 14(iv) of the Act; (ii) the validity of
H the Notification dated 30.3.1996, in particular the
G
GRID CORPORATION OF ORISSA LTD. v. EASTERN
METALS AND FERRO ALLOYS
781
provision of the licence which enabled the appellant to
increase the tariff not exceeding on average 117% of
those permitted under the interim tariff issued by the
State Government; and (iii) the tariff notification dated
13.5.1996 issued by the appellant.
The High Court upheld the validity of Section 14 (iv)
of the Act and the Notification dated 30.3.1996. It also
upheld the power of the appellant to revise the tariff under
the provisional licence. It, however, held that the increase
in tariff rates under the tariff notification dated 13.5.1996
issued by the appellant was more than 17% (over the
tariff rates contained in OSEB Notification dated
28.10.1995) in regard to some categories of consumers
and as such was in excess of the power given to the
appellant under clause 9.1 of the licence. As a
consequence, the High Court quashed the tariff
notification dated 13.5.1996 and directed the Commission
to re-determine the tariff as per law.
The instant appeals were filed challenging the order
of the High Court. The Court by interim order dated
3.4.2000 directed the Orissa Electricity Regulatory
Commission to determine the tariff by two methods, that
is, by taking into account the observations made in the
impugned judgment, and the second, without reference
to the observations/directions of the High Court. The
report of the Commission disclosed that in regard to
consumers falling under the category ‘irrigation’, the
increase was only 8.33% and for the Railways falling
under the category ‘railway traction’, the increase was
only 10.09%. In regard to the domestic consumers, the
increase was 17.47%. In regard to other categories of
consumers, the increase was much more.
782
A
B
C
[2010] 10 S.C.R.
A words of a statute have to be read and understood in their
natural, ordinary and popular sense. Where, however, the
words used are capable of bearing two or more
constructions, it is necessary to adopt purposive
construction, to identify the construction to be preferred.
B Such an exercise involving ascertainment of the object
of the provision and choosing the interpretation that
would advance the object of the provision can be
undertaken, only where the language of the provision is
capable of more than one construction. [Para 14] [796-F;
C 797-A]
Bengal Immunity Co. v. State of Bihar 1955 (2) SCR 603;
Kanailal Sur v. Paramnidhi Sadhukhan 1958 SCR 360 –
relied on.
D
E
F
G
Allowing the appeals, the Court
HELD: 1. The golden rule of interpretation is that the
SUPREME COURT REPORTS
H
D
Principles of Statutory Interpretation (12th Edition) by
Justice G.P.Singh’s – referred to.
2.1. It is not disputed that clause 9.1 is reasonably
capable of more than one construction, that is, at least
three interpretations. The first interpretation of clause 9.1
E
is that it permits increase in tariff rates but with a ceiling
of 17% in regard to each and every category of
consumers and, therefore, the increase in case of no
category can exceed 17%, has found favour with the High
Court and the Commission. The fact that there can be
F different percentages of increases in tariff in regard to
different categories is an accepted procedure. Therefore,
when there is a revision of tariff rates, the percentage of
increase can vary from category to category. If the said
interpretation is applied by holding that in no case, the
G increase can be more than 17%, and if in regard to some
categories, increases are to be nominal, it will be
impossible to achieve a 17% increase which is permitted
and contemplated under clause 9.1. Further, the words
‘on average’ would be rendered meaningless if by
H average 17% increase cannot be achieved and if the
GRID CORPORATION OF ORISSA LTD. v. EASTERN
METALS AND FERRO ALLOYS
783
increases cannot exceed 17% in any case. This
interpretation, if accepted, would also prevent the
licencee from creating or carving out any new category
of consumers and fix the tariff rate for such category.
Therefore, this interpretation apart from rendering the
words ‘on average’ redundant and meaningless, militates
against the provisions of clause 9.1. [Para 16] [797-H;
798-A-E]
2.2. The second interpretation is that so long as the
average of the different increases does not exceed 17%
of the interim tariff rates, the appellant has the discretion
to apply different rates of increases to different categories
and increases with reference to some categories can
exceed 17%. This interpretation would also lead absurd
result, if put into effect. The average of the percentages
of increase in regard to six categories would be only
16.66% which is less than 17%. But in terms of revenue
realization, the increase would exceed not only 17%, but
even as much as 40% with reference to revenue at the
previous tariff rates. This obviously was not the object.
The average should ensure that there is no increase
beyond 17% in regard to the total revenue. [Para 17] [798F; 799-D]
2.3. The third possible interpretation would be: The
increase in tariff rates for different categories of
consumers could be of different percentages, provided
the average realization per unit during the relevant period
(arrived at by dividing the estimated revenue during the
period, by the estimated consumption during that period)
was not more than 17% of the average realization per unit
during the previous period when the interim tariff was in
force. The words used in clause 9.1 are “charges made
by the licencee shall not exceed on average 117% of
those permitted under the interim tariffs”. It is significant
to note that the clause does not use the words “the tariff
784
A
B
C
D
E
F
G
H
SUPREME COURT REPORTS
[2010] 10 S.C.R.
A rates prescribed by the licencee shall not exceed 17% of
those permitted under the interim tariffs.” The use of the
words “charges” and ‘tariffs’ in the same clauses
indicates that they were intended to signify different
meanings. As was rightly noticed by the Commission that
B the word ‘tariffs’ referred to the schedule of rates. If the
object of clause 9.1 was to refer to ‘tariff rates’ prescribed
by the licence, there was no need to use the words
“charges made”. The use of the words ‘on average’ while
referring to 117% has also some significance. If the
C words “charges made by the licencee” are interpreted as
“tariff rates fixed by the licencee”, then, the words ‘on
average’ would be rendered meaningless and become an
useless appendage. The use of the words ‘charges made
by the licencee’ and use of the words “shall not exceed
on average 117%” necessarily indicates that the rates
D
fixed by the appellant should not result in an increase in
realization or revenue in excess of 17% of what it would
have realized with reference to the tariff rates that were
earlier in force under the interim tariff. ‘Charges made by
the licencee’, therefore, refers to the total revenue of
E appellant by sale of electricity to the different categories
of consumers. The appellant, discharging the functions
of the State Government under the Act, has to ensure that
the burden of increase on the agriculturist-consumers,
that is, those consuming electricity for “irrigation”, should
F be the minimum. Similarly, increase in the tariff rate for
electricity consumed by railway traction has to be kept
minimal in national economic interest. Similarly, the
increase in tariff for residential user should be
comparatively lesser than commercial user. At the same
G time, the appellant has to ensure an increase in its
revenue by 17%. If increase beyond 17% was not
permissible in regard to any category of consumers, and
if some categories had to be subjected to only small
increases far below 17%, due to economic or social
H justice criteria, the appellant would never be able to
GRID CORPORATION OF ORISSA LTD. v. EASTERN
METALS AND FERRO ALLOYS
785
achieve the increase anything in the range of 17%. Only
by adopting the process of applying a higher than 17%
increase in the case of some categories of consumers, it
can offset the effect of small or marginal increase in the
case of some other categories like ‘irrigation’ and ‘railway
traction”. Therefore, if appellant chose to charge a lesser
increase in percentage to some categories of consumers
and higher increases in regard to other categories of
consumers, it cannot be found fault with so long as its
total revenue does not exceed 17% over the
corresponding revenue with reference to the old interim
tariff rates. The word ‘on average’ used in clause 9.1 gives
the discretion to appellant to charge tariff rates with
different increases depending upon the category of
consumers, so long as the overall increase in revenue,
that is, the “charges made” by the licencee, does not
exceed 17%. Any other interpretation would render the
words ‘on average’ otiose and have the effect of
substituting the words tariff rate for the word charges. In
fact, the Commission has accepted this contention of the
appellant to a large extent. [Paras 13, 18, 19, 20] [796-CD; 799-F-H; 800-A-C; 800-D-H; 801-A-C]
4. The reliance placed by the respondent upon the
definition of ‘tariff’ in clause (b) of Explanation to Section
26 of the Act to interpret that the “charges made” in
clause 9.1 do not refer to the total revenue received by
the appellant, but referred to the tariff rates prescribed by
the appellant, is misconceived. The explanation to
Section 26 does not define the words ‘charges made’, but
defines the word ‘tariffs’. Under the erroneous
assumption that the word “charges” referred to the actual
tariff rates that were chargeable to different categories of
consumers, the Commission ignored its own
conclusions and held that clause 9.1 placed a ceiling of
17% in respect of increases in the tariff rates applicable
to different categories of consumers. It is true that the
786
A
B
C
D
E
SUPREME COURT REPORTS
[2010] 10 S.C.R.
A interpretation by a technical body in regard to purely
technical matters deserves acceptance and should not
be interfered, unless it is arbitrary or unreasonable. But,
in the instant case, on technical issues, the Commission
has favoured the stand of the appellant. Having accepted
B the interpretation of the appellant as being technically
sound and correct, it reached a different conclusion only
because it thought that the word ‘charges’ had to be
interpreted as ‘tariff rates’. If that is found to be without
basis or erroneous and, therefore, ignored, the opinion
C of the Commission fully favours the appellant. The High
Court was not justified in holding that the tariff rate in
regard to none of the category of consumers can exceed
17% over the previous rates. [Paras 11, 21, 22] [795-A-B;
802-F-H; 803-A-C]
D
E
F
F
G
G
Case Law Reference:
1955 (2) SCR 603
relied on
Para 14
1958 SCR 360
relied on
Para 14
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
5842-5889 of 1998.
From the Judgment & Order dated 30.10.1998 of the High
Court of Orissa at Cuttack in O.J.C. 8449, 5229, 4565, 4736,
4779, 5114, 5231, 5428, 5577, 6745, 8906, 8970, 9037, 9038,
9212, 9413, 10048, 10447, 10656, 10736, 10737, 10858,
11008, 11087, 11273, 11370, 11472, 11494, 11597, 11598,
11599, 11818, 12183, 12407, 12409, 12429, 12459, 12492,
13631, 13632, 13668, 15001, 15033 of 1996 and 994, 995,
996, 997, 4161 of 1997.
WITH
C.A. Nos. 3-8, 748 of 1999 & 7246 of 2010.
H
Jaideep Gupta, Raj Kumar Mehta, Antrayami Upadhyay,
H S. Lakhi Singh, Sanjay Sen, Rana S. Biswas, Mridul
GRID CORPORATION OF ORISSA LTD. v. EASTERN
METALS AND FERRO ALLOYS
787
Chakravarty, Indra Sawhney, Sarla Chandra, P.N. Gupta,
Himanshu Shekhar, Vinoo Bhagat, Abhijit P. Medh, Kirti Renu
Mishra, Ranab Kumar Mullick, Radha Shyam Jena for the
appearing parties.
The Judgment of the Court was delivered by
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R.V.RAVEENDRAN, J. 1. Leave granted in SLP(C)
No.4596 of 1999.
These appeals involve the interpretation of a tariff provision
in the provisional supply and distribution Licence issued under
the Orissa Electricity Reform Act, 1995 (‘Act’ for short).
2. The State of Orissa enacted the said Act, to restructure
and rationalize the generation, transmission, distribution and
supply of electricity in the state.
2.1 Section 3 of the Act provided for the establishment of
the Orissa Electricity Regulatory Commission (‘Commission’
for short), to discharge functions including the issue of licences
in accordance with the Act and determine the conditions of such
licences.
2.2 Chapter VI of the Act deals with licensing of
transmission and supply. Section 14(iv) of the said Act
authorized the State Government to grant provisional licences
for a period not exceeding twelve months, for carrying on the
business of transmission or supply of electricity, as a
transitional measure till the establishment of the Orissa
Electricity Regulatory Commission (‘Commission’ for short).
2.3 Section 13 of the Act provided that the Grid
Corporation of India Ltd. (‘GRIDCO’ for short, the appellant
herein) incorporated with the main object of engaging in the
“business powers” of the state government under section 12
of the Act, would be the principal company to undertake the
planning and co-ordination in regard to transmission and to
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[2010] 10 S.C.R.
A determine the electricity requirements in the state in coordination with various stakeholders.
B
2.4 Chapter VIII of the Act dealt with tariffs. It contained two
sections - section 26 dealing with licencee’s revenues and tariffs
and section 27 dealing with finances of licencees.
3. In exercise of the power under section 14(iv) of the Act,
the State Government, by notification dated 30.3.1996, issued
three licences to the appellant - the Provisional Orissa
Transmission Licence 1996, Provisional Orissa Supply Licence
C (Bulk Supply) 1966 and the Provisional Orissa Supply Licence
(Retail Supply and Distribution), 1996 — authorising the
appellant to engage in the business of transmission, bulk
supply and retail supply and distribution of electrical energy
within the State of Orissa, upon the terms and conditions
D mentioned in those licences. In pursuance of such licences, the
appellant took over the transmission, distribution and supply of
electricity from the Orissa State Electricity Board (‘OSEB’ for
short) with effect from 1.4.1996. Part III of the Retail Supply and
Distribution Licence (similar provisions were contained in the
E Provisional Transmission Licence and Provisional Bulk Supply
Licence also) related to “Tariffs” and it is extracted below :
“9. Basis of Charges
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9.1 The charges made by the licensee shall not exceed
on average 117% of those permitted under the interim
tariffs issued by the State Government and in force on 1st
April 1996.
9.2 The authority granted in clause 9.1 expires with the
expiration of this license.”
The “interim tariffs in force as on 1.4.1996 issued by the state
government”, referred to in the said clause 9.1 were the tariffs
which came into effect on 5.11.1995, contained in the
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GRID CORPORATION OF ORISSA LTD. v. EASTERN 789
METALS AND FERRO ALLOYS [R.V. RAVEENDRAN, J.]
Notification dated 28.10.1995 issued by the Orissa State
Electricity Board, predecessor of GRIDCO.
4. By notification dated 13.5.1996, the appellant revised/
prescribed the electricity charges for different categories of
consumers of electricity in the State as per the tariff schedule
appended to the said notification with effect from 21.5.1996,
in supersession of the tariff rates prescribed in the OSEB
Notification dated 28.10.1995. The tariff schedule under the
Notification dated 13.5.1996, prescribed different tariff rates for
(i) large industries, (ii) medium industries, (iii) small industries,
(iv) irrigation pumping and agriculture, (v) public water works
and sewerage pumping, (vi) commercial, (vii) domestic, (viii)
railway traction supply, (ix) street lighting, (x) direct current
service, (xi) power intensive industries, (xii) heavy industries,
(xiii) general purpose supply, (xiv) public institutions, (xv) ministeel plants; and (xvi) emergency power supply to captive power
plants.
5. Several industries which were consumers of electricity
and the Utkal Chamber of Commerce, filed writ petitions before
the High Court, challenging (i) the validity of section 14(iv) of
the Act; (ii) the validity of the provisional Retail Supply and
Distribution Licence issued by the State Government under
section 14(iv) of the Act to the appellant, in particular the
provision of the licence which enabled the appellant to increase
the tariff not exceeding on average 117% of those permitted
under the interim tariff issued by the State Government; and (iii)
the tariff notification dated 13.9.1996 issued by the appellant.
6. A Division Bench of the High Court disposed of the said
writ petitions by the impugned judgment dated 30.10.1998. The
High Court upheld the vires of section 14 (iv) of the Act and
the Notification dated 30.3.1996 of the State of Orissa granting
the provisional licences in favour of the appellant. It also upheld
the power of the appellant to revise the tariff under the
provisional licence. It however held that the increase in tariff
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[2010] 10 S.C.R.
A rates under the tariff notification dated 13.5.1996 issued by the
appellant was more than 17% (over the tariff rates contained
in OSEB Notification dated 28.10.1995) in regard to some
categories of consumers and as such was in excess of the
power given to the appellant under clause 9.1 of the provisional
B supply & distribution licence. The High Court held that while the
appellant could increase the tariff upto 17% in terms of the
licence, there was no power or authority to increase the tariff
rates beyond 17% in respect of any particular category of
consumers; and as the appellant had increased the tariff rates
C by different percentages in regard to different categories of
consumers, in the absence of a specific authorization for
enhancement beyond 17% in regard to any category of
consumers, it was not competent for the appellant to enhance
the tariff rate beyond 17% in respect of any category of
consumer. The High Court negatived the contention of the
D
appellant that it could increase the tariff by more than 17% in
regard to some categories, provided the increase in respect
of other categories was less than 17%, and the net overall result
by way of average did not exceed 17%. As a consequence,
the High Court quashed the tariff notification dated 13.5.1996
E as also the demands under the respective bills raised against
the various writ petitioners. The High Court directed the
Commission to redetermine the tariff as per law and further
directed that any excess payments collected from the
consumers shall be adjusted towards future demand/s.
F
7. The said judgment is challenged in these appeals by
special leave. The appellant contends that Clause 9.1 of the
Provisional Licence clearly provided that the charges made by
the licensee shall not exceed 17% on an average, which implied
G that while the increase in case of some categories of
consumers could be more than 17%, it could be less than 17%
in case of other categories so that the total increase on an
average does not exceed 17%. It is submitted that the interim
tariffs permitted by the State Government and which was in
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GRID CORPORATION OF ORISSA LTD. v. EASTERN 791
METALS AND FERRO ALLOYS [R.V. RAVEENDRAN, J.]
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8. This Court by interim order dated 3.4.2000 directed the
Orissa Electricity Regulatory Commission to determine the tariff
by two methods, that is by taking into account the observations
made by the High Court in the impugned judgment, and the
second, without reference to the observations/directions of the
High Court.
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9. In pursuance of the said direction, the Commission
submitted a report dated 24.11.2000 to this Court in regard to
the tariff determination. The Report stated :
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force on 1.4.1996 was an average 171.6 paisa per unit. The
revised tariff under the notification dated 13.5.1996 effective
from 21.5.1996 was estimated to yield a revenue of Rs.1241.12
crore by sale of 629.1 crore units during the whole of the year
1996-97, which would mean that the average tariff would be
200.15 paise per unit. During the year 1996-97, the interim
tariffs were in force for the period 1.4.1996 to 20.5.1996 and
the revised tariff under notification dated 13.5.1996 was in force
from 21.5.1996 to 31.3.1997. In view of it, the estimated yield
of revenue during the year 1996-97 worked out to Rs.1216.81
crore by sale of 620.1 crore units, and the average tariff for the
full year 1996-97 worked out to 195.228 paise per unit.
Therefore it is contended that the average increase in the tariff
for the year 1996-97 over the interim tariff in force on 1.4.1996
was 14.35%, well within the permissible limits and did not
violate the provisions of clause 9.1 of the provisional supply and
distribution licence.
“We have carefully examined the basic facts and figures
on which the impugned tariff notification dated 13.05.96
was issued. The mandate for us is to redetermine tariff
within the parameters stipulated in the provisional license
that the charges shall not exceed 117% of those permitted
under the interim tariffs in force. As per law, revised tariff
can be proposed by licensee when it finds that its annual
revenue requirement cannot be met by the charges fixed
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[2010] 10 S.C.R.
under prevailing tariff notification. As the estimated
revenue fell short of annual revenue requirement, the
licensee was authorized under the temporary licensee to
increase the tariff, subject to the limit aforesaid. Gridco
estimated its annual revenue requirement for 1996-97 at
Rs.1413 crores which was at a substantially higher level
than estimated realization of Rs.1033.94 crores on
prevailing interim tariff. Hence Gridco was entitled to
revise tariff but within the parameters indicated at clause
9 of the Licence. The charges proposed under impugned
notification dated 13.5.1996 would raise a total revenue
of Rs.1241.22 Crores for a whole year and Rs.1212.83
Crores for the period upto 31.3.1997 when provisional
license was to expire. Thus, Gridco’s notification
authorized charges considerably short of its annual
revenue requirements. Hence legitimacy of tariff increase
cannot be assailed. We have come to this conclusion after
taking into account objections raised before us during the
redetermination proceeding. We do not consider it
appropriate to burden this note with the facts, statements
and views presented by the objectors during the
proceeding. It may suffice to say that there has been no
serious or reasonable challenge to the calculation of actual
revenue requirement of Gridco even though objectors have
challenged Gridco on various grounds such as lack of
prudence in purchase of power, in expenditure, failure to
restrict T & D Loss, unreasonableness of increase in tariff
and lack of concern for affordability etc. In view of wide gap
between revenue requirement and revenue realizable,
Gridco was justified in increasing tariff. But what has to
be ensured is whether the increase was hit by the ceiling
imposed under clause 9 of provisional license.”
(emphasis supplied)
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The report also noticed the submission of the appellant that as
the average of the interim tariff (as per OSEB Notification dated
GRID CORPORATION OF ORISSA LTD. v. EASTERN 793
METALS AND FERRO ALLOYS [R.V. RAVEENDRAN, J.]
28.10.1995) which was in force till 20.5.1996 was 171.6 paise
per unit and as it was empowered to raise the average tariff to
117%, it had the mandate to raise the average tariff to 200.772
paise per unit (that is 117% of 171.6 paise); that as the interim
tariff under OSEB notification dated 28.10.1995 was in
operation till 20.5.1996 and the new tariff under GRIDCO
notification dated 13.5.1996 was in operation from 21.5.1996
to 31.3.1997, the percentage of increase over the interim tariff
with reference to the revenue receipts for the said period was
only 200.166 paise, that is an increase of 16.65% and
therefore, was not hit by the ceiling of 117% imposed by the
provisional lincence. (For this purpose, the average tariff rate
(200.166 paise) was arrived at by dividing the Revenue for the
period when the tariff was in force, by the total consumption
during that period). The Report did not find anything
unreasonable in the said contention of the appellant. But the
commission proceeded to opine that in the light of the definition
of the word ‘tariff’ in the Act and the clear difference between
the words ‘tariff’ and ‘charges’, clause 9 of the Provision Supply
Licence by using the words “charges made by the licencee”,
conferred on the appellant only a limited power of raising
charges by a maximum of 17% for any category of consumer.
It observed that ‘tariff’ referred to the Schedule of standard
prices/charges, and “charge” referred to the rate to be charged
for a particular category of customers and therefore, ‘charges’
meant ‘prices’. Consequently the report rejected the appellant’s
method of calculating the ceiling with reference to overall rate
of tariff. The commission held that even if the observations of
the High Court were not taken into account, there would be a
need to cut the charges in respect of those categories of
consumers where the increase was more than 17% as being
in excess of appellant’s authorization. Consequently it held that
while the increase in charges for the category of “irrigation” and
category of “railway traction” will remain unchanged (as the
increase therein was less than 17%), there should be reduction
in the tariff rates or charges for all other categories of
794
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[2010] 10 S.C.R.
A consumers (where the increase was more than 17%). The
Commission in effect supported the decision of the High Court.
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10. The appellant contended that the interpretation of
clause 9.1, adopted by the High Court and the Commission
was erroneous. According to the appellant, the High Court and
the Commission while reading and interpreting the words
“charges made by the licensee shall not exceed on average
117% …..” in clause 9.1, have ignored the significance of the
words ‘on average’ and rendered the said words redundant and
otiose. The appellant contended that they also overlooked the
fact that clause 9.1 used the words “charges made” and not
the words “charges imposed” or “tariff rates”. It was also pointed
out that clause 9.1 neither referred to “consumers” or “category
of consumers”. The appellant submitted that the object of the
provision was not to bar category-wise revisions, but to provide
for different increases which on averaging increased the overall
revenue by 17% over the revenue that would have been derived
with reference to pre-revision tariff rates. The appellant
contended that the use of the word ‘average’ was intended to
mean that the appellant was entitled to apply different rates to
different categories of consumers provided the aggregate of
revenue on account of the increases did not exceed 17% of
the revenue with reference to pre-revision tariff rates. The
appellant contended that the provision did not place a ceiling
of 17% in regard to increase in the tariff rates for each of the
categories; that it was entitled to increase the tariff rates in
respect of some categories of consumers beyond 17% while
restricting the increase in the tariff rates for other categories
to a lesser percentage, to ensure that the total revenue for the
electricity consumed during the relevant period, did not exceed
17% over the revenue for such quantum based on the previous
interim tariff rates. It was therefore submitted that the tariff
notification dated 13.5.1996 was valid.
11. The respondents on the other hand contended that the
word “charges” in clauses 9.1 referred to the tariff rates. They
GRID CORPORATION OF ORISSA LTD. v. EASTERN 795
METALS AND FERRO ALLOYS [R.V. RAVEENDRAN, J.]
relied upon the definition of ‘tariff’ in clause (b) of explanation
to section 26 of the Act which reads as under : “tariff” means a
schedule of standard prices or charges for specified services
which are applicable to all such specified services provided to
the type or types of customers specified in the tariff”. They
submitted that “charges made” in clause 9.1 do not refer to the
total revenue received by appellant, but referred to the tariff
rates prescribed by appellant. It was next contended that even
assuming that the words ‘charges made’ were capable of being
interpreted in more than one way, the interpretation that is
beneficial to the consumer should be adopted. They further
contended that where the opinion/ views of a technically
competent body, that is the Commission, was available in
regard to the interpretation that should normally be accepted
unless it was shown to be arbitrary and unreasonable.
12. The report of the Commission discloses that in regard
to consumers falling under the category ‘irrigation’, the increase
was only 8.33% and for the Railways falling under the category
‘railway traction’, the increase was only 10.09%. In regard to
the domestic consumers, the increase was 17.47%. In regard
to all other categories of consumers, the increase was much
more. In particular, for small industries, the increase is said to
be 27.59%, for medium industries the increase is said to be
29.73% and for large industries the increase is said to be
32.25%. The question is whether clause 9.1 authorized and
permitted the appellant to increase the tariff rate in regard to
each category of consumers, by a percentage not exceeding
17% over the pre-revision tariff rate, or whether the appellants
had the discretion to increase the tariff rate relating to different
categories by different percentages (that is even more than 17%
in regard to some categories) so long as the overall revenue
on account of different increases, did not exceed on the whole,
17% of the overall revenue calculated at the pre-revision tariff
rates. The entire question would thus revolve around the
interpretation of the words “shall not exceed on average 117%”
in clause 9.1.
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13. It is not disputed that clause 9.1 is capable of different
interpretations. The three possible interpretations are:
Interpretation (i) : There can be an increase in tariff rates,
but the increase in tariff rate in respect of any category of
consumers, could not exceed 17% of the interim tariff rates.
Interpretation (ii) : So long as the average of the different
increases does not exceed 17% of the interim tariff rates, the
appellant had the discretion to apply different rates of increases
to different categories and some of them can exceed 17%.
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Interpretation (iii) : The increase in tariff rates for different
categories of consumers could be of different percentages,
provided the average realization per unit during the relevant
period (arrived at by dividing the estimated revenue during the
period, by the estimated consumption during that period) was
D
not more than 17% of the average realization per unit during
the previous period when the interim tariff was in force.
The first interpretation has found favour with the High Court and
the Commission, having regard to the definition of ‘tariff’ in the
E Explanation to section 26 of the Act.
14. This takes us to the correct interpretation of clause 9.1.
The golden rule of interpretation is that the words of a statute
have to be read and understood in their natural, ordinary and
F popular sense. Where however the words used are capable of
bearing two or more constructions, it is necessary to adopt
purposive construction, to identify the construction to be
preferred, by posing the following questions: (i) What is the
purpose for which the provision is made? (ii) What was the
position before making the provision? (iii) Whether any of the
G
constructions proposed would lead to an absurd result or would
render any part of the provision redundant? (iv) Which of the
interpretations will advance the object of the provision? The
answers to these questions will enable the court to identify the
purposive interpretation to be preferred while excluding others.
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GRID CORPORATION OF ORISSA LTD. v. EASTERN 797
METALS AND FERRO ALLOYS [R.V. RAVEENDRAN, J.]
Such an exercise involving ascertainment of the object of the
provision and choosing the interpretation that will advance the
object of the provision can be undertaken, only where the
language of the provision is capable of more than one
construction. (See Bengal Immunity Co. v. State of Bihar –
1955 (2) SCR 603 and Kanailal Sur v. Paramnidhi
Sadhukhan – 1958 SCR 360 and generally Justice
G.P.Singh’s Principles of Statutory Interpretation, 12th Edition,
published by Lexis Nexis - Pages 124 to 131, dealing with the
rule in Haydon’s case).
15. In this case, we have noticed above that clause 9.1 is
reasonably capable of more than one construction, that is at
least three interpretations. We may therefore attempt to
ascertain the true meaning of the provision by answering the
four questions referred in the earlier para. On a careful
consideration, the answers to the four questions posed are :
(i) The purpose of clause 9.1 is to provide for an increase in
revenue by revising the tariff rates, by balancing the needs of
the Licencee with the interests and needs of different
categories of electricity consumers. (ii) Clause 9.1 being a fresh
provision, the question of considering the position that existed
before making of the said provision does not arise. (iii) The
interpretation canvassed by the respondents, (that is
interpretation (i) that increase in respect of any category of
consumers cannot exceed 17%) which found favour with the
High Court and the Commission, though may not lead to an
absurd result, would render the words ‘on average’ occurring
in the clause, redundant and otiose. (iv) The interpretation put
forth by the appellant gives meaning to every part of the clause
and also achieves the object of the clause. We will elaborate
the reasons therefor.
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A increase in tariff rates but with a ceiling of 17% in regard to
each and every category of consumers, and therefore the
increase in case of no category can exceed 17%, has found
favour with the High Court and the Commission. The fact that
there can be different percentages of increases in tariff in
B regard to different categories is an accepted procedure. For
example a lesser tariff is applied to agriculturists using
electricity for irrigation purposes when compared to consumers
using electricity for commercial or industrial purposes.
Therefore, when there is a revision of tariff rates, the percentage
C of increase will and can vary from category to category. If the
aforesaid interpretation is applied by holding that in no case,
the increase can be more than 17%, and if in regard to some
categories, increases are to be nominal, it will be impossible
to achieve a 17% increase which is permitted and
D contemplated under clause (9.1). Further, the words ‘on
average’ would be rendered meaningless if by average 17%
increase cannot be achieved and if the increases cannot
exceed 17% in any case. This interpretation, if accepted, would
also prevent the licensee from creating or carving out any new
category of consumers and fix the tariff rate for such category.
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Therefore this interpretation apart from rendering the words ‘on
average’ redundant and meaningless, militates against the
provisions of clause (9.1).
Re : Interpretation (ii)
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Re: Interpretation (i)
16. The first interpretation of clause 9.1 is that it permits
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17. The second interpretation is that so long as the
average of the different increases does not exceed 17% of the
interim tariff rates, the appellant has the discretion to apply
different rates of increases to different categories and
G increases with reference to some categories can exceed 17%.
This interpretation will also lead absurd result if put into effect.
Let us illustrate with reference to a hypothetical example (not
with reference to actuals):
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GRID CORPORATION OF ORISSA LTD. v. EASTERN 799
METALS AND FERRO ALLOYS [R.V. RAVEENDRAN, J.]
S. Category of Use
No.
1.
2.
3.
4.
5.
6.
Consumption
share out of total
quantity of
electricity
generated and
distributed
Industry
40%
Domestic
30%
Irrigation
10%
Railway traction
10%
Public Institutions
5%
General purposes
5%
Percentage in
increase over the
previous tariff
rate
800
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60%
30%
1%
2%
3%
4%
The average of the percentages of increase in regard to six
categories will be only 16.66% which is less than 17%. But in
terms of revenue realization, the increase would exceed not only
17%, but even as much as 40% with reference to revenue at
the previous tariff rates. This obviously was not the object. The
average should ensure that there is no increase beyond 17%
in regard to the total revenue.
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[2010] 10 S.C.R.
A 117% has also some significance. If the words “charges made
by the licencee” are interpreted as “tariff rates fixed by the
licencee”, then, the words ‘on average’ would be rendered
meaningless and becomes an useless appendage. The use of
the words ‘charges made by the licencee’ and use of the words
B “shall not exceed on average 117%” necessarily indicates that
the rates fixed by the appellant should not result in an increase
in realization or revenue in excess of 17% of what it would have
realized with reference to the tariff rates that were earlier in force
under the interim tariff. ‘Charges made by the licensee’
C therefore refers to the total revenue of appellant by sale of
electricity to the different categories of consumers.
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Re : Interpretation (iii)
18. The words used in clause (9.1) are “charges made by
the licencee shall not exceed on average 117% of those
permitted under the interim tariffs”. It is significant to note that
the clause does not use the words “the tariff rates prescribed
by the licencee shall not exceed 17% of those permitted
under the interim tariffs.” The use of the words “charges” and
‘tariffs’ in the same clauses indicates that they were intended
to signify different meanings. As rightly noticed by the
Commission, the word ‘tariffs’ referred to the schedule of rates.
If the object of clause 9.1 was to refer to ‘tariff rates’ prescribed
by the Licence, there was no need to use the words “charges
made”. The use of the words ‘on average’ while referring to
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19. The appellant, discharging the functions of the state
government under the Act, had to ensure that the burden of
increase on the agriculturist – consumers, that is those
consuming electricity for “irrigation”, should be the minimum.
Similarly, increase in the tariff rate for electricity consumed by
railway traction had to be kept minimal in national economic
interest. Similarly, the increase in tariff for residential user
should be comparatively lesser than commercial user. At the
same time, the appellant had to ensure an increase in its
revenue by 17%. If increase beyond 17% was not permissible
in regard to any category of consumers, and if some categories
had to be subjected to only small increases far below 17%, due
to economic or social justice criteria, the appellant would never
be able to achieve the increase anything in the range of 17%.
Only by adopting the process of applying a higher than 17%
increase in the case of some categories of consumers, it can
offset the effect of small or marginal increase in the case of
some other categories like ‘irrigation’ and ‘railway traction”.
Therefore, if appellant chose to charge a lesser increase in
percentage to some categories of consumers and higher
increases in regard to other categories of consumers, it cannot
be found fault with so long as its total revenue does not exceed
17% over the corresponding revenue with reference to the old
interim tariff rates. If appellant would have realized ‘X’ amount
GRID CORPORATION OF ORISSA LTD. v. EASTERN 801
METALS AND FERRO ALLOYS [R.V. RAVEENDRAN, J.]
as revenue at the interim tariff rates which were in force before
21.5.1996, the object of the increase was to provide an
increase in revenue by 17% over ‘X’ after 21.5.1996. That is
why the word ‘on average’ is used in clause 9.1. This gives the
discretion to appellant to charge tariff rates with different
increases depending upon the category of consumers, so long
as the overall increase in revenue, that is the “charges made”
by the licensee, does not exceed 17%. Any other interpretation
would render the words ‘on average’ otiose and have the effect
of substituting the words tariff rate for the word charges.
20. In fact, the Commission has accepted this contention
of the appellant to a large extent as is evident from the following
observations in the report :
“As there will be considerable uncovered gap between
revenue requirement and revenue expected. We do not
find scope to bring down the charges in any category. But
in the present environment of cross-subsidy which is bound
to continue for a number of years and in the absence of
reliable data for calculating cost of supply and average
tariff, we consider that the relative rates for different
categories of consumers for the interim period as decided
by GRIDCO is as good as any other alternative allocation
of costs and charges………
It appears that it has not been brought to the notice of the
Court that all along in the past varying charges for different
categories of consumers has been determined in
consideration of nature and purpose of use and
affordability of different categories of consumers. The cost
of supply, the quality of supply and affordability are widely
different for different classes of consumers. Due to sociopolitical decision to cross-subsidize some categories, it
has never been considered desirable or possible to levy
uniform charges or to decide upon a uniform percentage
of increase of charges…….
802
A
A
B
B
C
C
D
D
E
E
F
G
H
SUPREME COURT REPORTS
[2010] 10 S.C.R.
In the practice followed by electrical utilities in the country
as well as abroad, the average “charges” for electricity
tariff is calculated by considering the total revenue
realizable during a period divided by number of units
estimated to be sold during the period. Percentage of
increase in charges or tariff, normally refers to percentage
of increase of the average rate over the overall average
rate of prevailing tariff calculated in this method. This has
been the practice mainly due to the prevalence of crosssubsidy in the electricity tariff structure in India. Even when
there is no cross-subsidy the rate of increase in tariff for
various categories are different because the determination
is with reference to cost of supply for a particular category
of consumer. The concept of uniform rate of increase for
all categories of consumers is unknown because every
time there is a revision the interests of different categories
are rebalanced in consideration of public policy, pattern
of consumption, consumer composition and revenue
requirements. Viewed in this light we find some justification
in Gridco’s claim that ceiling of 117% was with reference
to overall average of interim tariff and overall average rate
of new tariff. This logic implies that there has been no clear
distinction between ‘tariff’ and ‘charges’.”
21. The reliance upon clause (2) of Explanation to section
26 of the Act to interpret the wording of clause 9.1 is
F misconceived. The explanation to section 26 does not define
the words ‘charges made’, but defines the word ‘tariffs’. Under
the erroneous assumption that the word “charges” referred to
the actual tariff rates that were chargeable to different
categories of consumers, the Commission ignored its own
G conclusions and held that clause 9.1 placed a ceiling of 17%
in respect of increases in the tariff rates applicable to different
categories of consumers. It is true that the interpretation by a
technical body in regard to purely technical matters deserves
acceptance and will not be interfered, unless it is arbitrary or
H unreasonable. But in this case, on technical issues, the
GRID CORPORATION OF ORISSA LTD. v. EASTERN 803
METALS AND FERRO ALLOYS [R.V. RAVEENDRAN, J.]
Commission has favoured the stand of the appellant. Having
accepted the interpretation of the appellant as being technically
sound and correct, it reached a different conclusion only
because it thought that the word ‘charges’ had to be interpreted
as ‘tariff rates’. If that is found to be without basis or erroneous,
and therefore ignored, the opinion of the Commission fully
favours the appellant.
22. We are of the view that the High Court was not justified
in holding that the tariff rate in regard to none of the category
of consumers can exceed 17% over the previous rates. We
accept the explanation and interpretation of the appellant. The
Commission has found that the increase in revenue, on an
average, under the tariff notification dated 13.5.1996 was only
16.65% over the revenue calculated with reference to the earlier
interim tariff rates. We therefore, allow these appeals, set aside
the judgment of the High Court dated 30.10.1998 and dismiss
the writ petitions filed by the respondents before the High Court
and uphold the validity of the Tariff notification dated 13.5.1996.
D.G.
Appeals allowed.
[2010] 10 S.C.R. 804
A
A
B
B
NAHALCHAND LALOOCHAND PVT. LTD.
v.
PANCHALI CO-OPERATIVE HOUSING SOCIETY LTD.
(Civil Appeal No. 2544 of 2010)
AUGUST 31, 2010
[R.M. LODHA AND A.K. PATNAIK, JJ.]
C
D
Maharashtra Ownership Flats (Regulation of the
Promotion of Construction, Sale, Management and Transfer)
C Act, 1963:
s. 2(a-1) – Stilt parking space – Rights of promoter viva-vis housing society – Held: Stilt parking space is neither
covered by term ‘flat’ nor ‘garage’ but is a part of ‘common
areas’ – MOFA restricts the rights of promoter in the block or
D
building constructed for flats or to be constructed for flats to
which the Act applies – Promoter has no right to sell any
portion of such building which is not ‘flat’ within the meaning
of s. 2(a-1) nor has he the right to sell stilt parking space –
He only has the right to sell unsold flats – Entire land and
E building has to be conveyed to the organization –
Maharashtra Ownership Flats (Regulations of the Promotion
of Construction, Etc.) Rules, 1964 – Development Control
Regulations for Greater Bombay, 1991 – Maharashtra
Apartment Ownership Act, 1970 – Maharashtra Regional and
F Town Planning Act, 1966 – Transfer of Property Act, 1882 –
Urban Development.
s. 2(a-1) – ‘Flat’ – Meaning of – Held: Flat is a separate
and self-contained set of premises that forms part of the
G building and is used or intended to be used for residence or
office, showroom or shop or godown or for carrying on industry
or business – Stand alone garage or garage as an
independent unit by itself is not a ‘flat’ within the meaning of
s. 2(a-1) – Interpretation of Statutes.
804
H
NAHALCHAND LALOOCHAND PVT. LTD. v. PANCHALI COOPERATIVE HOUSING SOCIETY LTD.
805
s. 2 (a-1) – Stilt parking space/open parking space of
building – Held: Stilt parking space/open parking space of a
building regulated by MOFA, is a part of ‘common areas’– It
may be usable as a parking space but does not tantamount
to a ‘garage’ within the meaning of s. 2(a-1) r/w condition No.
2 Form V of 1964 Rules, thus not saleable independently as
a flat or along with a flat – Maharashtra Ownership Flats
(Regulations of the Promotion of Construction, Etc.) Rules,
1964.
Purpose of Maharashtra Ownership Flats (Regulation of
the Promotion of Construction, Sale, Management and
Transfer) Act, 1963 – Explained.
806
A
A
B
B
C
C
D
D
E
E
F
F
G
G
H
H
‘Garage’ – Conntation of.
The appellant, a promoter, developed few properties
and entered into agreements for sale of flats with the flat
purchasers, namely, the members of the respondent cooperative housing society. The appellant filed a suit for
permanent injunction restraining the respondent society
from encroaching upon, trespassing and/or in any
manner disturbing, obstructing, interfering with its
possession in respect of 25 parking spaces in the stilt
portion of the building. The appellant submitted that each
flat purchaser would have a right in respect of the flat
sold to him and to no other portion; and that each flat
purchaser had executed a declaration/undertaking in its
favour to the effect that stilt parking spaces/open parking
spaces shown in the plan exclusively belonged to the
promoter and that the declarant would have no objection
to the sale of such spaces by it. The respondent
contended that the promoter had no right to sell or
[2010] 10 S.C.R.
dispose of spaces in the stilt portion and that the
undertakings given by the flat purchasers were not
binding being contrary to law and based on such
undertakings, the promoter did not acquire any right to
sell stilt parking spaces. The trial court dismissed the suit
filed by the promoter. The High Court dismissed the
appeal. Therefore, the promoter filed the instant appeal.
Dismissing the appeal, the Court
Words and Phrases:
‘Flat’ – Connotation of, in the context of premises.
SUPREME COURT REPORTS
HELD: 1.1 The term ‘flat’ apart from the statutory
definition, though has no uniform meaning but in its
natural and ordinary meaning, ‘flat’ is a self-contained set
of premises structurally divided and separately owned
for dwelling. [Para 23] [829-G]
1.2 The definition of the term ‘flat’ u/s. 2(a-1) of the
Maharashtra Ownership Flats (Regulation of the
Promotion of Construction, Sale, Management and
Transfer) Act, 1963 (MOFA) means that the set of premises
has to be a separate and self-contained that forms part
of the building which is used or intended to be used for
residence or office, showroom or shop or godown or for
carrying on industry or business. Separateness of one
premises from another premises physically and also in
use or intended use for one of the uses specified in the
definition clause containing the necessary facilities for
self-contained accommodation is sine qua non for a unit
being covered by the definition of ‘flat’ occurring in
Section 2(a-1) which includes an ‘apartment’. It must be
a separate unit conforming to the description capable of
being used for one of these purposes-namely, residence,
office, showroom, shop, godown or for industrial or
business purposes. Alternative uses in Section 2(a-1) do
expand the ordinary meaning of the term ‘flat’ but
nevertheless such premises that form part of building
NAHALCHAND LALOOCHAND PVT. LTD. v. PANCHALI COOPERATIVE HOUSING SOCIETY LTD.
807
must be separate and self-contained. A set of premises
is called self-contained if it has the following basic
amenities available: (a) sanitary; (b) washing, bathing and
(c) other conveniences (cooking etc.) for the use of its
occupant/s although as provided in the explanation
appended to section 2(a-1) such provision may be
common to two or more sets of premises. The nature of
construction and user are important features of the
definition clause. [Para 28] [830-G-H; 831-A-D]
1.3 A unit or accommodation to fit in the definition of
‘flat’ must meet twin-test namely: (i) self-contained test
and (ii) user test. The other predominant characteristic is
that it must form part of a building. [Para 28] [831-D]
1.4 On technical linguistic basis, the bracketed
phrase ‘(and includes a garage)’ can only attach to the
word preceding it. That may not be happy construction
nor such construction by reading bracketed portion with
the preceding word ‘business’ appropriately reflects the
meaning of the phrase. The scope of the bracketed
phrase has to be seen in the context of the definition
given to the word ‘flat’ which is true indication of intent
of the legislature. The suggestion that the phrase ‘and
includes a garage’ must be read with the ‘set of premises’
and not with the user, does not appear to be a correct
reading of the expression and cannot be accepted. The
statutory definition of ‘flat’ must be construed keeping in
view the intent of the legislature and the context of the
statute and, seen thus, the phrase, ‘and includes a
garage’ in the bracket does not bring in ‘garage’ by itself
within the meaning of word ‘flat’. If stand alone `garage’
(or a garage by itself) were intended by the legislature to
be a ‘flat’ within the meaning of Section 2(a-1), that could
have been conveniently conveyed by use of the
expression ‘or garage’ after the word ‘business’ in the
808
A
B
C
SUPREME COURT REPORTS
[2010] 10 S.C.R.
A same breath as preceding uses. The bracketed phrase is
rather indicative of the legislative intention to include a
‘garage’ as appurtenant or attachment to a flat which
satisfies the ingredients of Section 2(a-1). It is clear that
stand alone ‘garage’ or in other words ‘garage’ as an
B independent unit by itself is not a ‘flat’ within the meaning
of Section 2(a-1). [Para 29] [831-G-H; 832-A-D]
C
Municipal Corporation of Greater Bombay and Ors. v.
Indian Oil Corporation Ltd. 1991 Suppl. (2) SCC 18 –
referred to.
Dr. K.R. Agarwal vs. Balkrishna AIR 1972 Bombay 343
– disapproved.
D
E
F
G
H
Murgatroyd v. Tresarden 63 T.L.R. 62; Barnett & Block
D v. National Parcels Insurance Company Ltd. (1942) 1 All E.R.
221 – referred to.
‘Principles of Statutory Interpretation’ by Justice G.P.
Singh 12th edition, 2010; ‘Construction of Statutes’ by Earl T.
Crawford 1989 reprint p 362; Concise Oxford English
E Dictionary 10th edition, revised; Webster Comprehensive
Dictionary, International edition Vol. 1; Stroud’s Judicial
Dictionary 5th edition, Vol. 2; Words and Phrases, Permanent
Edition, West Publishing Company, Vol. 17; Advanced Law
Lexicon by P. Ramanatha Aiyar 3rd edition, 2005; Maxwell
F Interpretation of Statutes 12th Edition, pp. 69 to 70 – referred
to.
2.1 The Development Control Regulations for Greater
Bombay, 1991 define two expressions ‘garage-private’
G and ‘garage-public’ in Regulations 2(47) and 2(48)
respectively. The ‘garage-private’ means a building or a
portion thereof designed and used for the parking of
vehicles and ‘garage-public’ means a building or portion
thereof designed other than as a private garage,
H
NAHALCHAND LALOOCHAND PVT. LTD. v. PANCHALI CO- 809
OPERATIVE HOUSING SOCIETY LTD.
operated for gain, designed and/or used for repairing,
serving, hiring, selling or storing or parking motor-driven
or other vehicles. The word ‘garage’ occurring in Section
2(a-1) must be given a meaning that general public or for
that matter a flat purchaser of ordinary prudence would
give to that word or understand by that word. [Para 33]
810
A
B
Barnett & Block v. National Parcels Insurance Company
Ltd. (1942) 1 All E.R. 221 – referred to.
Concise Oxford English Dictionary 10th edition, revised;
Webster Comprehensive Dictionary, International edition Vol.
1; Words and Phrases, Permanent Edition, West Publishing
Company, Vol. 17 – referred to.
2.2 It cannot be said that open parking space is
tantamount to a ‘garage’ within the meaning of Section
2(a-1) read with condition No. 2 Form V of 1964 Rules. A
person buying a flat for residence or one of the uses
mentioned in Section 2(a-1) will not really think that open
to the sky or open space for parking motor vehicles is a
garage. The word ‘garage’ may not have uniform
connotation but definitely every space for parking motor
vehicles is not a garage. A roofless erection could not be
described a garage. What is contemplated by a ‘garage’
in Section 2(a-1) is a place having a roof and walls on
three sides. It does not include an unenclosed or
uncovered parking space. In condition No. 2, Form V the
words ‘covered/open garage’ have been used but the
word ‘open’ used in the Model Form V cannot override
the true meaning of term ‘garage’ in Section 2(a-1). As a
matter of fact, none of the provisions of MOFA regards
‘open garage’ connoting ‘flat’ or an appurtenant/
attachment to a flat. Undue importance should not be
given to word ‘open’ which has loosely been used in
condition No. 2, Form V. The true meaning of the term
‘garage’ in Section 2(a-1), is not affected by a Model Form
V appended to the 1964 Rules. [Para 35]
C
SUPREME COURT REPORTS
[2010] 10 S.C.R.
A
2.3 A stilt area is a space above the ground and
below the first floor having columns that support the first
floor and the building. It may be usable as a parking space
but for the purposes of MOFA, such portion could not be
treated as garage. Even as per the test accepted in
B *Barnett & Block case, a place having roof but offering no
shelter or protection on two sides cannot be a garage.
For the purposes of MOFA, and particularly Section 2(a1), the term ‘garage’ must be considered as would be
understood by a flat purchaser and such person would
C contemplate garage which has a roof and wall on three
sides. [Para 36]
*Barnett & Block v. National Parcels Insurance Company
Ltd. (1942) 1 All E.R. 221 – referred to.
D
E
F
G
3.1 MOFA does not define nor it explains ‘common
areas and facilities’ though the said phrase is used at
various places in that Act. It is true that interpretation
clause or legislative definition in a particular statute is
meant for the purposes of that statute only and such
E legislative definition should not control other statutes but
the parts of the property stated in clauses (2), (3) and (6)
of Section 3(f) as part of ‘common areas and facilities’ for
the purposes of MAOA are what is generally understood
by the expression ‘common areas and facilities’. This is
F fortified by the fact that the areas which could be termed
as ‘common areas’ in a building regulated by MOFA are
substantially included in the clauses of Section 3(f) of
MAOA. Looking to the scheme and object of MOFA, and
there being no indication to the contrary, there is no
justifiable reason to exclude parking areas (open to the
G
sky or stilted portion) from the purview of ‘common areas
and facilities’ under MOFA. [Para 37]
D
3.2 It cannot be said that under MOFA it is for the
H
NAHALCHAND LALOOCHAND PVT. LTD. v. PANCHALI COOPERATIVE HOUSING SOCIETY LTD.
811
promoter to prescribe and define at the outset the
‘common areas’ and unless it is so done by the promoter,
the parking area cannot be termed as part of ‘common
areas’. A promoter cannot takeout common passage/
lobbies or stair case or RG area out of purview of
`common areas and facilities’ by not prescribing or
defining the same in the `common areas’. It is not
necessary that all flat purchasers must actually use
‘common areas and facilities’ in its entirety. The relevant
test is whether such part of the building is normally in
common use. Open to the sky parking area or stilted
portion usable as parking space is not ‘garage’ within the
meaning of Section 2(a-1) and, therefore, not saleable
independently as a flat or along with a flat. As a matter of
fact, the promoter is not put to any prejudice financially
by treating open parking space/stilt parking space as part
of ‘common areas’ since he is entitled to charge price for
the common areas and facilities from each flat purchaser
in proportion to the carpet area of the flat. [Para 38]
3.3 MOFA mandates the promoter to describe
‘common areas and facilities’ in the advertisement as well
as the ‘agreement’ with the flat purchaser and the
promoter is also required to indicate the price of the flat
including the proportionate price of the ‘common areas
and facilities’. If a promoter does not fully disclose the
common areas and facilities, he does so at his own peril.
Stilt parking spaces would not cease to be part of
common areas and facilities merely because the
promoter has not described the same as such in the
advertisement and agreement with the flat purchaser.
Even if the two aspects, namely, that the area of stilt
parking space is not included in the FSI and such area
is not assessable to the Corporation taxes, are excluded;
nevertheless, stilt parking space/open parking space of
a building regulated by MOFA is nothing but a part of
‘common areas’. [Para 38]
812
A
B
SUPREME COURT REPORTS
[2010] 10 S.C.R.
4. Since ‘Stilt parking space’ is not covered by the
term ‘garage’ much less a ‘flat’, but is a part of ‘common
areas’ of the building developed by the promoter, the only
right that the promoter has, is to charge the cost thereof
in proportion to the carpet area of the flat from each flat
B purchaser. Such stilt parking space being neither ‘flat’ u/
s. 2(a-1) nor ‘garage’ within the meaning of that provision
is not saleable at all. [Para 39]
A
C
C
D
D
E
E
F
F
G
G
H
H
5.1 MOFA was enacted by the Maharashtra
Legislature as it was found that builders/developers/
promoters were indulging in malpractices in the sale and
transfer of flats and the flat purchasers were being
exploited. The effect of MOFA may be summarized. First,
every promoter who constructs or intends to construct
block or building of flats in the area to which MOFA
applies has to strictly adhere to the provisions contained
therein, i.e., inter alia, he has to make full and true
disclosure of the nature of his title to the land on which
the flats are constructed and also make disclosure in
respect of the extent of the carpet area of the flat and the
nature, extent and description of the common areas and
facilities when the flats are advertised for sale. Secondly,
the particulars which are set out in Section 4(1A) (a) (i) to
(x) have to be incorporated in the agreement with the flat
purchaser. Thirdly, the promoter has to apply to the
Registrar for registration of the organization (co-operative
society or company or condominium) as soon as
minimum number of persons required to form such
organization have taken flats. As regards unsold flats, the
promoter has to join such organization although his right
to dispose of unsold flats remains unaffected. Fourthly,
and more importantly, the promoter has to take all
necessary steps to complete his title and convey to the
organization his right, title and interest in the land and
building and execute all relevant documents accordingly.
[Para 40]
NAHALCHAND LALOOCHAND PVT. LTD. v. PANCHALI CO- 813
OPERATIVE HOUSING SOCIETY LTD.
5.2 The submission that there is no provision either
express or by necessary implication in MOFA restricting
the sale of stilt or open parking spaces and the promoter
continues to have contractual, legal and fundamental
right to dispose of the stilt/open parking space in the
manner in which he proposes and his consumers accept,
if accepted, the mischief with which MOFA is obviously
intended to deal with would remain unabated and flat
purchasers would continue to be exploited indirectly by
the promoters. MOFA does restrict the rights of the
promoter in the block or building constructed for flats or
to be constructed for flats to which that Act applies. The
promoter has no right to sell any portion of such building
which is not ‘flat’ within the meaning of Section 2(a-1) and
the entire land and building has to be conveyed to the
organization. The only right remains with the promoter is
to sell unsold flats. It is, thus, clear that the promoter has
no right to sell ‘stilt parking spaces’ as these are neither
‘flat’ nor appurtenant or attachment to a ‘flat’. Thus, the
finding of the High Court that undertakings are neither
binding on the flat purchasers nor the society also
warrants no interference. [Paras 40 and 41]
ICICI Bank Ltd. v. SIDCO Leathers Ltd. and Ors. (2006)
10 SCC 452; Karnataka State Financial Corporation v. N.
Narasimahaiah and Ors. (2008) 5 SCC 176; Bhikhubhai
Vithlabhai Patel and Ors. v. State of Gujarat and Anr. (2008)
4 SCC 144 – referred to.
814
A
B
C
Referred to.
Para 10, 33,
36
1991 Suppl. (2) SCC 18
Referred to.
Para 10
63 TLR 62
Referred to.
Para 25
AIR 1972 Bombay 343
Disapproved.
Para 29
B
[2010] 10 S.C.R.
(2006) 10 SCC 452
Referred to.
Para 40
(2008) 5 SCC 176
Referred to.
Para 40
(2008) 4 SCC 144
Referred to.
Para 40
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2544 of 2010.
From the Judgment & Order dated 25.04.2008 of the High
Court of Judicature at Bombay in First Appeal No. 2182 of
2007.
C
WITH
C.A. Nos. 2449, 2456, 2545, 2546, 2547, 2548 of 2010.
D
E
Pravin K. Samdani, Neeraj Kumar Jain, Tanway Mehta,
D Kush Chaturvedi (for Vikas Mehta), Mahesh Agarwal, E.C.
Agarwala, Rahul Dwarkadas, Gaurav Goel, Neha Aggarwal,
Deepti, Pragya, Gaurav Aggarwal (for Manik Karanjawala),
Umesh Shetty, Nitin Bhardwaj, Pratham Kant, J.N. Solanki,
Umang Shankar, Buddy A. Raganadhan, A.V. Rangam,
E Praveen Chaturvedi, Aparna Jha for the appearing parties.
The Judgment of the Court was delivered by
F
Case Law Reference:
(1942) 1 All E.R. 221
A
SUPREME COURT REPORTS
G
R.M. LODHA, J. 1. Of these seven appeals which arise
from the judgment dated April 25, 2008 passed by the High
F Court of Judicature at Bombay (Appellate Jurisdiction), five are
at the instance of the original plaintiff and the other two are by
the parties, who were not parties to the proceedings before the
High Court or the trial court but they are aggrieved by the
findings recorded by the High Court as they claim that these
G findings are affecting their rights.
The facts:
H
H
2. Few important questions of law arise in this group of
appeals. It will be convenient to formulate the questions after
NAHALCHAND LALOOCHAND PVT. LTD. v. PANCHALI COOPERATIVE HOUSING SOCIETY LTD. [R.M. LODHA, J.]
815
we set out the material facts and the contentions of the parties.
The narration of brief facts from S.C. Suit No. 1767 of 2004
will suffice for consideration of these appeals. Nahalchand
Laloochand Private Limited is a Private Limited Company. As
a promoter, it developd few properties in Anand Nagar, Dahisar
(East), Mumbai and entered into agreements for sale of flats
with flat purchasers. The flat purchasers are members of
Panchali Co-operative Housing Society Ltd. (for short, ‘the
Society’). The promoter filed a suit before the Bombay City Civil
Court, Bombay for permanent injunction restraining the Society
(defendant) from encroaching upon, trespassing and/or in any
manner disturbing, obstructing, interfering with its possession
in respect of 25 parking spaces in the stilt portion of the
building. The promoter set up the case in the plaint that under
the agreements for sale it has sold flats in its building and each
flat purchaser has right in respect of the flat sold to him and to
no other portion. It was averred in the plaint that each flat
purchaser has executed a declaration/undertaking in its favour
to the effect that stilt parking spaces/open parking spaces
shown in the plan exclusively belong to the promoter and that
the declarant has no objection to the sale of such spaces by it.
The defendant (Society) traversed the claim and set up the plea
that the promoter has no right to sell or dispose of spaces in
the stilt portion and that the undertakings given by the flat
purchasers are not binding being contrary to law and based on
such undertakings, the promoter has not acquired any right to
sell stilt parking spaces.
816
A
B
SUPREME COURT REPORTS
A Flats (Regulation of the Promotion of Construction, Sale,
Management and Transfer) Act, 1963 as ‘MOFA’, Maharashtra
Ownership Flats (Regulations of the Promotion of Construction,
Etc.) Rules, 1964 as ‘1964 Rules’, Development Control
Regulations for Greater Bombay, 1991 as ‘DCR’, Maharashtra
B Apartment Ownership Act, 1970 as ‘MAOA’, The Maharashtra
Regional and Town Planning Act, 1966 as ‘MRTP Act’ and
Transfer of Property Act as ‘T.P. Act’.
The summary of findings recording by the High Court:
C
D
E
C
7. While dismissing the appeal, the High Court recorded
the following findings :
1
The carpet area of any of the 56 flats/
tenements in Panchali building is not less
than 35 sq. mtrs.
2
The parking space either enclosed or
unenclosed, covered or open cannot be a
‘building’.
3
It is compulsory requirement to provide for
parking spaces under DCR.
4
It is obligatory on the part of the promoter to
follow the DCR. The agreement signed under
MOFA between the developer and the flat
purchaser must be in conformity with the
model form of agreement (Form V)
prescribed by the State Government.
5
The model agreement does not contemplate
the flat purchasers to separately purchase the
stilt parking spaces.
6
The rights arising from the agreement signed
under the MOFA between the promoter and
the flat purchasers cannot be diluted by any
D
E
F
F
G
G
3. The parties let in evidence (oral as well as documentary)
in support of their respective case.
4. On April 4, 2007, the Presiding Judge, City Civil Court,
Greater Bombay dismissed the suit with costs.
5. The promoter preferred first appeal before the High
Court which was dismissed on April 25, 2008.
6. For brevity, we shall describe Maharashtra Ownership
[2010] 10 S.C.R.
H
H
NAHALCHAND LALOOCHAND PVT. LTD. v. PANCHALI COOPERATIVE HOUSING SOCIETY LTD. [R.M. LODHA, J.]
7
8
817
818
contract or an undertaking to the contrary. The
undertakings contrary to DCR will not be
binding either on the flat purchasers or the
Society.
A
The stilt parking space is a common parking
area available and the developer is obliged
to provide the same under the DCR when the
carpet area of the flat is 350 sq. meters It is
not an additional premises/area that he is
authorized to sell either to flat purchaser or
any outsider. It is part and parcel of the
Society building and it cannot be a separate
premises available for sale. As soon as the
Corporation issues the occupation certificate
and the Society is registered, the building as
well as the stilt parking spaces, open spaces
and all common amenities become the
property of the Society.
B
B
C
C
The stilt parking spaces cannot be put on
sale by the developer as he ceases to have
any title on the same as soon as the
occupation certificate is issued by the
Corporation and it becomes the property of
the society on its registration.
9
The stilt parking spaces cannot be termed as
‘open/covered garages’ and Clause 2 of the
Model Agreement—Form V provides for
sale of covered/open garage in addition to
the flat/shop.
10
It is immaterial if the purchase agreement
does not include stilt car parking spaces in
the common area of amenities. The stilt car
parking spaces is part of the common
amenities and it cannot be treated to be a
SUPREME COURT REPORTS
A
[2010] 10 S.C.R.
separate premises/garage which could be
sold by the developer to any of the members
of the society or an outsider.
11
Under MOFA, the developer ’s right is
restricted to the extent of disposal of flats,
shops and/or garages, which means that any
premises which is included in the Flat Space
Index (FSI) can be sold by the developer/
promoter. The stilt parking space is not
included in the FSI nor it is assessable for
the Corporation taxes.
The submissions:
D
D
E
E
F
F
G
G
H
H
8. Mr. Tanmaya Mehta, learned counsel appearing for the
promoter—Nahalchand Laloochand Private Limited (appellant)
contended that: the stilt parking space being ‘garage’, as an
independent unit is covered by the definition of ‘flat’ in Section
2(a-1) of MOFA; Section 2(a-1) creates an artificial definition
of ‘flat’ and since in common parlance a garage would not be
considered as a flat, the legislature clarified and explained that
the term ‘flat’ means…… and ‘includes a garage’; as long as
premises are covered from the roof or which have a covered
roof and used for the parking of vehicles, that would qualify as
‘garage’ and since stilt parking spaces are covered parking
spaces and form part of the building, they fall within the
definition of a ‘garage’; even if stilt parking spaces do not fall
within the definition of ‘flat’, they are nevertheless sellable as
independent units since right to sell such spaces flows from the
bundle of rights associated with ownership of the property and
Sections 10 and 11 of MOFA read with Rule 9 of 1964 Rules
are not exhaustive of the rights retained by the promoter upon
execution of conveyance. Moreover, if stilt parking spaces are
treated as ‘common areas’ then the proportionate price for the
same would have to be paid by each flat purchaser, irrespective
of whether he requires the parking space or not and there may
be situations where the number of parking spaces will not be
NAHALCHAND LALOOCHAND PVT. LTD. v. PANCHALI COOPERATIVE HOUSING SOCIETY LTD. [R.M. LODHA, J.]
819
equal to the number of flats and, thus, a person who has paid
proportionate price for the common parking space may find
himself without parking space, even though he has paid for the
same. Lastly, the learned counsel submitted that in any event
the promoter undertakes that the parking spaces shall be sold
only to persons purchasing flats within the subject layout, i.e.
the purchasers of flats in the seven buildings which form part
of the layout and exist in close proximity.
9. Mr. Pravin K. Samdani, learned senior counsel for one
of the appellants viz., Maharashtra Chamber of Housing Industry
adopted a little different line of argument. He contended that
the provisions of MOFA permit a promoter to sell garage/open/
covered car parking space along with the flat. His submission
is that MOFA does not define the word ‘garage’ and that word
has to be understood and interpreted in accordance with the
plain grammatical meaning and not with reference to DCR
which have been framed under MRTP Act having different
legislative object. As to whether the stilt parking spaces are
‘common areas’, Mr. Pravin K. Samdani would submit that
MOFA does not list out the ‘common areas’ and ‘limited
common areas’ while MAOA does define these terms and
parking spaces thereunder are ‘common areas and facilities’
unless otherwise provided in the declaration by the owner of
the property. Under MOFA, it is for the promoter and under
MAOA, the declarant has to prescribe at the outset the
‘common areas’ and ‘limited common areas’. He referred to
Sections 3(2)(h), 4(1)(a)(v), 10 and 11 of the MOFA and
submitted that the promoter must at the outset indicate the
nature of organization (condominium or society or company)
that would be formed at the time of sale of flats and on formation
of such organization, the promoter joins such organization with
a right and power to dispose of remaining flats that would
include the remaining unsold open/covered parking space/
garage and the organization is transferred unsold open/
covered parking spaces only if all the flats have been sold by
the promoter. Learned senior counsel would submit that it is
820
A
B
SUPREME COURT REPORTS
[2010] 10 S.C.R.
A wholly irrelevant whether stilt/podium/basement/covered car
park attracts FSI or not but the only relevant criterion is whether
the promoter has listed it as a part of common area or not and
if he has not done so then it is sellable. If he has listed it, then
every flat purchaser is proportionately required to contribute for
B the same.
C
C
D
D
E
E
F
F
G
G
H
H
10. In the appeal filed by one Chirag M. Vora, Mr. Sunil
Gupta, learned senior counsel appeared. He argued that MOFA
was enacted and enforced in the year 1963 as a regulatory
piece of legislation and barring the few aspects in respect of
which MOFA makes specific inroads into the rights of the
promoter in the matter of construction, sale, management and
transfer of flats, all other aspects of the right of the promoter
who enters into contract with the flat purchaser remain
unaffected and undisturbed. His submission is that MOFA gives
a wide meaning to the word ‘flat’ so that buildings of all
permutations and combinations may be covered within the
scope of that Act and keeping in mind both the plain language
of Section 2(a-1) as well as the object of that Act, widest
meaning to the word ‘flat’ deserves to be given so that the plain
language is satisfied and also the object of the Act is better
subserved. He adopted the line of interpretation put forth by Mr.
Tanmaya Mehta that ‘garage’ includes covered parking spaces
and even open parking spaces and is a ‘flat’ in itself under
Section 2(a-1). Relying upon Barnett & Block v. National
Parcels Insurance Company Ltd.1, learned senior counsel
submitted that the minimum requirement of garage is that there
should be roof (even if there are no walls) and for the purpose
of MOFA, not only a covered parking space like a stilt parking
space but also an open parking space is tantamount to
‘garage’. According to learned senior counsel the word
‘garage’ is not to be read simply as another kind of user as
contrasted with residence, office, showroom or shop or godown
or industry or business rather it has to be read in contrast and
juxtaposed against the expression ‘set of premises’; it is the
1.
[1942] 1 All E.R. 221.
NAHALCHAND LALOOCHAND PVT. LTD. v. PANCHALI COOPERATIVE HOUSING SOCIETY LTD. [R.M. LODHA, J.]
821
alternative to the ‘set of premises’ and not merely to the different
users of the set of premises mentioned in Section 2 (a-1).
Mr. Sunil Gupta, learned senior counsel would submit that each
stilt parking space as well as each open parking space is a
‘flat’ in itself de hors the other accommodations amounting to
‘flat’ under Section 2(a-1) of MOFA. In support of his argument,
he relied upon a decision of this Court in the case of Municipal
Corporation of Greater Bombay & Ors. v. Indian Oil
Corporation Ltd.2. In the alternative, he submitted that if the stilt
parking space or open parking space is not held to be a ‘flat’
under Section 2 (a-1), still that space/area cannot be treated
as part of ‘common areas and facilities’. Firstly, he submitted
that common areas and facilities do not include garage/parking
spaces and such parking spaces remain ungoverned by MOFA.
Sections 3 and 4 of MOFA concern with matters pertaining to
‘common areas and facilities’ but MOFA does not define the
meaning of ‘common areas and facilities’. Section 3(2)(m)(iii)
leaves it to the promoter to disclose to his flat purchaser the
nature, extent and description of the common areas and
facilities. Section 4, by mentioning a prescribed form of
agreement, rather opened the possibilities for the promoter to
continue to exercise his traditional and pre-Act right to dispose
of such parking spaces according to his choice. The stilt/
covered/open parking spaces do not figure as part of the
common areas and facilities in any project and remain within
the contractual, legal and fundamental rights of the promoter to
dispose of the same in the manner in which he proposes and
his customers accept. Section 16 of MOFA does not override
this right of a promoter. Secondly, learned senior counsel would
submit that the provisions of MOFA must not be made to
depend on the provisions of some other enactment just because
the subject matter of the two legislations appears to be the
same. In this regard, he referred to Maxwell Interpretation of
Statutes, 12th Edition, pages 69 to 70 and G.P. Singh on
Principles of Statutory Interpretations, 8th edition, pages 150
2.
[1991] Suppl. (2) SCC 18.
822
A
B
C
SUPREME COURT REPORTS
[2010] 10 S.C.R.
A to 160. He, thus, submitted that for the purposes of
understanding the meaning of ‘flat’ under Section 2(a-1) of
MOFA, the provisions of MAOA may be looked at but there
would be no justification in understanding the expression, ‘flat’
defined in MOFA with reference to MRTP Act, DCR, rules
B related to FSI and the provisions concerning property tax in the
Bombay Municipal Corporation Act.
C
11. On the other hand, Mr. Neeraj Kumar Jain, learned
senior counsel and Mr. Umesh Shetty, learned counsel for the
Societies stoutly supported the view of the High Court.
The issues:
D
E
F
12. In view of the contentions outlined above, the questions
that arise for consideration are : (i) whether stand alone ‘garage’
D or in other words ‘garage’ as an independent unit by itself is a
‘flat’ within the meaning of Section 2(a-1) of MOFA; (ii) whether
stilt parking space/open parking space of a building regulated
by MOFA is a ‘garage’; (iii) If the answer to aforesaid questions
is in the negative, whether stilt parking space/open parking
space in such building is part of ‘common areas and facilities’
E
and (iv) what are the rights of the promoter vis-à-vis society (of
flat purchasers) in respect of open parking space/s / stilt parking
space/s.
F
13. All these questions have to be considered in the light
of statutory provisions. At this stage we notice some of the
provisions of MOFA. As regards other statutory provisions, we
shall refer to them wherever necessary.
Relevant provisions of MOFA:
G
G
14. The definition of ‘flat’ in Section 2(a-1) is most vital and
during course of arguments it has been rightly said that meaning
of the word ‘flat’ is the actual fulcrum of MOFA. Section 2(a-1)
reads thus:
H
H
“S.2(a-1).- “Flat” means a separate and self-contained set
NAHALCHAND LALOOCHAND PVT. LTD. v. PANCHALI COOPERATIVE HOUSING SOCIETY LTD. [R.M. LODHA, J.]
823
of premises used or intended to be used for residence,
or office, show-room or shop or godown or for carrying on
any industry or business (and includes a garage), the
premises forming part of a building and includes an
apartment.
Explanation.—Notwithstanding that provision is made for
sanitary, washing, bathing or other conveniences as
common to two or more sets of premises, the premises
shall be deemed to be separate and self-contained.”
15. ‘Promoter’ is defined in Section 2(c) as under :
“S.2(c).- `Promoter’ means a person and includes a
partnership firm or a body or association of persons,
whether registered or not who constructs or causes to be
constructed a block or building of flats, or apartments for
the purpose of selling some or all of them to other persons,
or to a company, co-operative society or other association
of persons, and includes his assignees; and where the
person who builds and the person who sells are different
persons, the term includes both;”
824
A
A
B
B
C
C
D
D
E
E
(2) A promoter, who constructs or intends to construct
such block or building of flats, shall—
[2010] 10 S.C.R.
(a) make full and true disclosure of the nature of his
title to the land on which the flats are constructed, or are
to be constructed; such title to the land as aforesaid having
been duly certified by an Attorney-at-law, or by an
Advocate of not less than three years standing, and having
been duly entered in the Property card or extract of Village
Forms VI or VII and XII or any other relevant revenue record;
(b) make full and true disclosure of all encumbrances
on such land, including any right, title, interest or claim of
any party in or over such land;
(c) to (h)
…..
(i) not allow persons to enter into possession until a
completion certificate where such certificate is required to
be given under any law, is duly given by the local authority
(and no person shall take possession of a flat until such
completion certificate has been duly given by the local
authority);
(j) to (l)
…..
(m) when the flats are advertised for sale, disclose
inter alia in the advertisement the following particulars,
namely :-
16. The general liabilities of the promoter are set out in
Section 3. To the extent it is relevant to the present case it
reads thus :
“S.3.- (1) Notwithstanding anything in any other law, a
promoter who intends to construct or constructs a block or
building of flats, all or some of which are to be taken or
are taken on ownership basis, shall in all transactions with
persons intending to take or taking one or more of such
flats, be liable to give or produce, or cause to be given or
produced, the information and the documents hereinafter
in this section mentioned.
SUPREME COURT REPORTS
F
G
H
F
G
H
(i) the extent of the carpet area of the flat including
the area of the balconies which should be shown
separately;
(ii) the price of the flat including the proportionate
price of the common areas and facilities which
should be shown separately, to be paid by the
purchaser of flat; and the intervals at which the
instalments thereof may be paid;
(iii) the nature, extent and description of the
common areas and facilities;
NAHALCHAND LALOOCHAND PVT. LTD. v. PANCHALI COOPERATIVE HOUSING SOCIETY LTD. [R.M. LODHA, J.]
825
(iv) the nature, extent and description of limited
common areas and facilities, if any.
826
A
A
(n) sell flat on the basis of the carpet area only:
Provided that, the promoter may separately
charge for the common areas and facilities in
proportion ‘to the carpet area of the flat’.
Explanation.—For the purposes of this clause, the
carpet area of the flat shall include the area of the
balcony of such flat.”
17. Section 4 of MOFA mandates that promoter before
accepting advance payment or deposit shall enter into an
agreement with the prospective flat purchaser and such
agreement shall be registered. It provides as follows:
“S.4.- (1) Notwithstanding anything contained in any other
law, a promoter who intends to construct or constructs a
block or building of flats all or some of which are to be
taken or are taken on ownership basis, shall, before, he
accepts any sum of money as advance payment or
deposit, which shall not be more than 20 per cent of the
sale price enter into a written agreement for sale with each
of such persons who are to take or have taken such flats,
and the agreement shall be registered under the
Registration Act, 1908” and such agreement shall be in the
prescribed form.
(1A) The agreement to be prescribed under sub-section
(1) shall contain inter alia the particulars as specified in
clause (a); and to such agreement there shall be attached
the copies of the documents specified in clause (b)—
[2010] 10 S.C.R.
and specifications approved by the local authority
where such approval is required under any law for
the time being in force;
(ii) to (v) …..
B
B
(vi) the nature, extent and description of limited
common areas and facilities;
(vii) the nature, extent and description of limited
common areas and facilities, if any;
C
C
D
D
(viii) percentage of undivided interest in the
common areas and facilities appertaining to the flat
agreed to be sold;
(ix) statement of the use for which the flat is
intended and restriction on its use, if any;
(x) percentage of undivided interests in the limited
common areas and facilities, if any, appertaining to
the flat agreed to be sold;
E
E
(b) ….. ”
18. Section 10 casts duty upon the promoter to take steps
for formation of co-operative society or company, as the case
may be. The said provision reads as follows :
F
F
G
G
H
H
(a) particulars—
(i) if the building is to be constructed, the liability
of the promoter to construct it according to the plans
SUPREME COURT REPORTS
“S.10.- (1) As soon as a minimum number of persons
required to form a Co-operative society or a company
have taken flats, the promoter shall within the prescribed
period submit an application to the Registrar for
registration of the organization of persons who take the
flats as a co-operative society or, as the case may be, as
a company; and the promoter shall join, in respect of the
flats which have not been taken, in such application for
membership of a co-operative society or as the case may
be, of a company. Nothing in this section shall affect the
right of the promoter to dispose of the remaining flats in
NAHALCHAND LALOOCHAND PVT. LTD. v. PANCHALI COOPERATIVE HOUSING SOCIETY LTD. [R.M. LODHA, J.]
827
accordance with the provisions of this Act.
Provided that, if the promoter fails within the
prescribed period to submit an application to the Registrar
for registration of society in the manner provided in the
Maharashtra Co-operative Societies Act, 1960, the
Competent Authority may, upon receiving an application
from the persons who have taken flats from the said
promoter, direct the District Deputy Registrar, Deputy
Registrar or, as the case may be, Assistant Registrar
concerned, to register the society :
Provided further that, no such direction to register
any society under the preceding proviso shall be given to
the District Deputy Registrar, Deputy Registrar or, as the
case may be, Assistant Registrar, by the Competent
Authority without first verifying authenticity of the applicants’
request and giving the concerned promoter a reasonable
opportunity of being heard.”
19. There is also obligation cast upon promoter to execute
the documents of title and convey to the co-operative society
or the company or an association of flat purchasers/apartment
owners, right, title and interest in the land and building by virtue
of Section 11 which reads thus:
“S.11.- (1) A promoter shall take all necessary steps to
complete his title and convey to the organization of
persons, who take flats, which is registered either as a cooperative society or as a company as aforesaid, or to an
association of flat takers or apartment owners his right, title
and interest in the land and building, and execute all
relevant documents therefore in accordance with the
agreement executed under section 4 and if no period for
the execution of the conveyance is agreed upon, he shall
execute the conveyance within the prescribed period and
also deliver all documents of title relating to the property
which may be in his possession or power.
SUPREME COURT REPORTS
828
A
A
B
B
C
C
D
D
E
E
F
F
[2010] 10 S.C.R.
2. It shall be the duty of the promoter to file with the
Competent Authority, within the prescribed period, a copy
of the conveyance executed by him under sub-section (1).
3. If the promoter fails to execute the conveyance in favour
of the co-operative society formed under Section 10 or,
as the case may be, the company or the association of
apartment owners, as provided by sub-section (1), within
the prescribed period, the members of such co-operative
society or, as the case may be, the company or the
association of apartment owners may, make an
application, in writing, to the concerned Competent
Authority accompanied by the true copies of the registered
agreements for sale, executed with the promoter by each
individual member of the society or the company or the
association, who have purchased the flats and all other
relevant documents (including the occupation certificate,
if any), for issuing a certificate that such society, or as the
case may be, company or association, is entitled to have
an unilateral deemed conveyance, executed in their favour
and to have it registered.
(4)
…..
(5)
…..”
20. Section 16 of MOFA provides that the provisions
contained therein are in addition to the provisions of the T. P.
Act and shall take effect notwithstanding anything to the contrary
contained in the contract.
Re : question nos. (i) and (ii):
G
G (A) What is ‘flat’?
H
21. For proper consideration of questions (i) and (ii) as
afore-referred, it is of considerable importance to ascertain the
import and meaning of the term ‘flat’ defined in Section 2(a-1)
H of MOFA. Rather the answer to the questions presented for
NAHALCHAND LALOOCHAND PVT. LTD. v. PANCHALI CO- 829
OPERATIVE HOUSING SOCIETY LTD. [R.M. LODHA, J.]
consideration must squarely or substantially depend on what
is a ‘flat’. Justice G.P. Singh in the ‘Principles of Statutory
Interpretation’ (12th edition, 2010) says that the object of a
definition of a term is to avoid the necessity of frequent
repetitions in describing all the subject matter to which that word
or expression so defined is intended to apply. In other words,
the definition clause is inserted for the purpose of defining
particular subject-matter dealt with and it helps in revealing the
legislative meaning. However, the definitive clause may itself
require interpretation because of ambiguity or lack of clarity in
its language. In the ‘Construction of Statutes’ by Earl T.
Crawford (1989 reprint) at page 362, the following statement
is made: “…….the interpretation clause will control in the
absence of anything else in the act opposing the interpretation
fixed by the clause. Nor should the interpretation clause be
given any wider meaning than is absolutely necessary. In other
words, it should be subjected to a strict construction.”
22. The definition of term ‘flat’ in MOFA at the time of its
enactment was this: ‘flat’ means a separate and self-contained
set of premises used or intended to be used for residence, or
office, showroom or shop or godown (and includes a garage),
the premises forming part of a building. By Maharashtra Act
No. 15 of 1971, the definition of ‘flat’ got amended and the
words ‘and includes an apartment’ were inserted after the word
`building’. Thereafter by Maharashtra Act 36 of 1986, the words
‘or for carrying on any industry or business’ were inserted after
the word ‘godown’ and before the bracketed portion `(and
includes a garage)’.
23. Before we analyze Section 2(a-1), if we ask what the
term ‘flat’ means, apart from the statutory definition, the reply
must be that though it has no uniform meaning but in its natural
and ordinary meaning, ‘flat’ is a self contained set of premises
structurally divided and separately owned for dwelling. Concise
Oxford English Dictionary (10th edition, revised) explains `flat’
—a set of rooms comprising an individual place of residence
830
A
SUPREME COURT REPORTS
[2010] 10 S.C.R.
A within a larger building.
24. Webster Comprehensive Dictionary; International
edition (Vol. 1) explains ‘flat’— 1. a set of rooms on one floor,
for the occupancy of a family; apartment. 2. A house containing
such flats.
B
B
C
25. In Stroud’s Judicial Dictionary (5th edition, Vol. 2), a
reference has been made to the observations of Somervell L.J,
in Murgatroyd v. Tresarden, 63 T.L.R. 62 and it is stated; the
natural meaning of the word ‘flat’ is a separate self-contained
C dwelling.
26. In Words and Phrases, Permanent Edition, (West
Publishing Company), Vol. 17, while dealing with the term ‘flat’
generally, it is stated :
D
D
“The word ‘flat’ has no technical, legal meaning, so that a
court can pronounce absolutely one way or the other. A
building is a ‘flat’ or not, and, where the testimony is
conflicting, the question is one of fact”.
E
E
F
F
27. Advanced Law Lexicon by P. Ramanatha Aiyar (3rd
edition, 2005) explains the term ‘flat’, in the following way – `in
the ordinary use of the term a flat is a self-contained set of
rooms, structurally divided and separately owned or let from the
rest of a building, which for the most part consists of other flats
separated in like manner’.
G
H
28. Reverting back to the definition of the term ‘flat’ under
Section 2(a-1), for a ‘flat’ within the meaning of this definition
clause, the set of premises has to be a separate and selfcontained that forms part of the building which is used or
G intended to be used for residence or office, showroom or shop
or godown or for carrying on industry or business.
Separateness of one premises from another premises
physically and also in use or intended use for one of the uses
specified in the definition clause containing the necessary
H facilities for self-contained accommodation is sine qua non for
NAHALCHAND LALOOCHAND PVT. LTD. v. PANCHALI COOPERATIVE HOUSING SOCIETY LTD. [R.M. LODHA, J.]
831
a unit being covered by the definition of ‘flat’ occurring in Section
2(a-1) which includes an ‘apartment’. In other words, it must be
a separate unit conforming to the description capable of being
used for one of these purposes—namely, residence, office,
showroom, shop, godown or for industrial or business
purposes. Alternative uses in Section 2(a-1) do expand the
ordinary meaning of the term ‘flat’ but nevertheless such
premises that form part of building must be separate and selfcontained. A set of premises is called self-contained if it has
the following basic amenities available: (a) sanitary; (b) washing,
bathing and (c) other conveniences (cooking etc.) for the use
of its occupant/s although as provided in the explanation
appended to Section 2(a-1) such provision may be common
to two or more sets of premises. The nature of construction and
user are important features of this definition clause. A unit or
accommodation to fit in the definition of ‘flat’ must meet twintest namely: (i) self contained test and (ii) user test. The other
predominant characteristic is that it must form part of a
building. Crucially, for the relevant premises to be ‘flat’:
1
It must be a separate and self contained
premises;
2
It must form part of building;
3
It must be used or intended to be used for
any of the uses namely—residence, office,
showroom, shop, godown or for carrying on
any industry or business.
29. In the discussion made above, we have not referred
to the bracketed portion namely - ‘(and includes a garage)’ so
far. What is the meaning and significance of this bracketed
portion? On technical linguistic basis, the bracketed phrase can
only attach to the word preceding it. That may not be happy
construction nor such construction by reading bracketed portion
‘(and includes a garage)’ with the preceding word ‘business’
appropriately reflects the meaning of the phrase. The scope of
832
A
B
C
D
E
F
SUPREME COURT REPORTS
[2010] 10 S.C.R.
A the bracketed phrase has to be seen in the context of the
definition given to the word ‘flat’ which is true indication of intent
of the legislature. It was suggested by learned senior counsel
and counsel for the promoters that the phrase ‘and includes a
garage’ must be read with the ‘set of premises’ and not with
B the user. This does not appear to be a correct reading of the
expression. We are not persuaded to accept such construction.
We think that statutory definition of ‘flat’ must be construed
keeping in view the intent of the legislature and the context of
the statute and, seen thus, the phrase, ‘and includes a garage’
C in the bracket does not bring in ‘garage’ by itself within the
meaning of word ‘flat’. If stand alone `garage’ (or a garage by
itself) were intended by the legislature to be a ‘flat’ within the
meaning of Section 2(a-1), that could have been conveniently
conveyed by use of the expression ‘or garage’ after the word
‘business’ in the same breath as preceding uses. The
D
bracketed phrase is rather indicative of the legislative intention
to include a ‘garage’ as appurtenant or attachment to a flat
which satisfies the ingredients of Section 2(a-1). To this extent
Mr. Pravin K. Samdani is right in his submission. It is clear to
us that stand alone ‘garage’ or in other words ‘garage’ as an
E independent unit by itself is not a ‘flat’ within the meaning of
Section 2(a-1) and we answer question (i) in the negative. The
judgment of Bombay High Court in Dr. K.R. Agarwal Vs.
Balkrishna3 to the extent the expression ‘or garage’ has been
read after the word ‘godown’ in para 5 (clause 2) of the report
F does not state the correct legal position in what we have
already said above.
(B) Whether stilt parking space is a garage?
G
G
H
H
30. The next question is, whether stilt parking space in a
building regulated by MOFA is a ‘garage’. The term ‘garage’
has not been defined in MOFA and, therefore, we need to first
find out what is the extent and scope of that term in Section
2(a-1). The general term ‘garage’ is appropriated in English
3.
AIR 1972 BOMBAY 343.
NAHALCHAND LALOOCHAND PVT. LTD. v. PANCHALI COOPERATIVE HOUSING SOCIETY LTD. [R.M. LODHA, J.]
833
from the French language and means ‘keeping under cover’ or
‘a place for keeping’ of wagons as well as automobiles.
Concise Oxford English Dictionary (10th edition, revised)
explains ‘garage’— 1 a building for housing a motor vehicle or
vehicles. 2 an establishment which sells fuel or which repairs
and sells motor vehicles.
834
33. The DCR define two expressions ‘garage-private’ and
‘garage-public’ in Regulations 2(47) and 2(48) respectively.
According to these Regulations, ‘garage-private’ means a
building or a portion thereof designed and used for the parking
of vehicles and ‘garage-public’ means a building or portion
thereof designed other than as a private garage, operated for
gain, designed and/or used for repairing, serving, hiring, selling
or storing or parking motor-driven or other vehicles. In our view,
we must give to the word ‘garage’ occurring in Section 2(a-1)
a meaning that general public or for that matter a flat purchaser
of ordinary prudence would give to that word or understand by
that word. Learned senior counsel Mr. Sunil Gupta referred to
Barnett and Block1 wherein Atkinson, J. stated as follows:
“Now what is a garage? No evidence was given to
suggest or prove that the word “garage” in the trade had
got any special meaning, and it was agreed to take four
dictionary definitions set out in the agreed statement of
facts. The four definitions were these. From the SHORTER
OXFORD DICTIONARY: “A building for the storage or
refitting of motor vehicles.” From the NEW CENTURY
[2010] 10 S.C.R.
A
A
B
B
C
C
D
D
E
E
F
F
G
G
H
He, thus, submitted that even a place with merely a roof may
H well be a ‘garage’. By placing reliance on condition No. 2 in
31. Webster Comprehensive Dictionary, International
edition (Vol. 1) explains the word ‘garage’—a building in which
motor vehicles are stored and cared for.
32. Words and Phrases, Permanent Edition, (West
Publishing Company), Vol. 17, states that ‘garage’ generally is
a station in which motorcars can be sheltered, stored, repaired,
cleaned, and made ready for use; it is also place for private
storage for motorcars; stable for motor cars.
SUPREME COURT REPORTS
DICTIONARY : “A building for sheltering, cleaning or
repairing motor vehicles. To put or keep in a garage.” From
the NEW STANDARD DICTIONARY: “A building for
stabling or storing of motor vehicles of all kinds.” From
NUTTAL’S STANDARD DICTIONARY : “A storehouse for
motor vehicles.” Those are four definitions from leading
dictionaries all containing at any rate one word in common,
and that is “building.” As there is no evidence as to how
the general public understand the word “garage,” I suppose
one is entitled to use one’s own knowledge. I am inclined
to think that ordinary man in the street does regard a
garage as connoting some sort of a building; how far he
would go I do not know. I do not know whether he would
think that there should be a wall all round it, or whether it
would be sufficient if there were three sides walled in and
a roof. I have one in mind where there is a row of sheds
without any protection in front, which are commonly spoken
of as “garages,” but I am going to apply here the test
suggested by counsel for the insured. He said “A garage
is a place where one can get reasonable protection and
shelter for a car.” Can I say that you are getting reasonable
protection and shelter for a car, if there is nothing to protect
the car from above – if there is no roof of any sort? I think
the ordinary man, as counsel for the insurers suggested,
who took a house with a garage, if he came and found
merely an open shed without any roof, would think he had
been swindled, however high the walls might be. I cannot
think that one is entitled to say that it is adequate or
reasonable protection or shelter if there is no roof; but this
is worse than that, though I agree that the walls are very
good here. Wherever you put a car in this yard, in addition
to there being no shelter from above, there will be no
shelter on two sides. That seems to me to be really
conclusive.”
NAHALCHAND LALOOCHAND PVT. LTD. v. PANCHALI COOPERATIVE HOUSING SOCIETY LTD. [R.M. LODHA, J.]
835
Form V of 1964 Rules, learned senior counsel submitted that
for the purposes of MOFA, even an open parking space is
tantamount to a ‘garage’.
34. The relevant portion of condition No. 2, Form V
appended to 1964 Rules reads as under:
“2. The Flat Purchaser hereby agrees to purchase from the
Promoter and the Promoter hereby agrees to sell to the
Flat Purchaser one flat No. ………. of the Type ………. of
carpet area admeasuring ………. sq. meters (which is
inclusive of the area of balconies) on ………. floor as
shown in the Floor plan thereof hereto annexed and marked
Annexures D/Shop No. ………. /covered/open Garage No.
………. in the ………. Building (hereinafter referred to as
“the Flat”) for the price of Rs. ………. including Rs. ……….
being the proportionate price of the common areas and
facilities appurtenant to the premises, the nature extent and
description of the common/limited common areas and
facilities/limited common areas and facilities which are
more particularly described in the Second Schedule
hereunder written. The Flat Purchasers hereby agrees to
pay to that Promoter balance amount of purchase price of
Rs. ………. (Rupees ………. ……………) having been
paid to the Promoter on or before the execution of his
agreement in the following manner.”
35. We do not perceive any force in the argument that open
parking space tantamounts to a ‘garage’ within the meaning
of Section 2(a-1) read with condition No. 2 Form V of 1964
Rules. Can a person buying a flat for residence or one of the
uses mentioned in Section 2(a-1) really think that open to the
sky or open space for parking motor vehicles is a garage? We
do not think so. The word ‘garage’ may not have uniform
connotation but definitely every space for parking motor
vehicles is not a garage. A roofless erection could not be
described a garage. What is contemplated by a ‘garage’ in
Section 2(a-1) is a place having a roof and walls on three sides.
836
A
B
C
SUPREME COURT REPORTS
[2010] 10 S.C.R.
A It does not include an unenclosed or uncovered parking space.
It is true that in condition No. 2, Form V the words ‘covered/
open garage’ have been used but, in our view, the word ‘open’
used in the Model Form V cannot override the true meaning of
term ‘garage’ in Section 2(a-1). As a matter of fact, none of
B the provisions of MOFA regards ‘open garage’ connoting ‘flat’
or an appurtenant/attachment to a flat. We do not think undue
importance should be given to word ‘open’ which has loosely
been used in condition No. 2, Form V. The true meaning of the
term ‘garage’ in Section 2(a-1), we think, is not affected by a
C Model Form V appended to the 1964 Rules.
D
D
E
E
F
F
G
G
H
H
36. The question then is as to whether the stilted portion
or stilt area of a building is a garage under MOFA. A stilt area
is a space above the ground and below the first floor having
columns that support the first floor and the building. It may be
usable as a parking space but we do not think that for the
purposes of MOFA, such portion could be treated as garage.
It was argued that the test accepted by Atkinson, J. in Barnett
& Block1–that a garage is a place where one can get
reasonable protection and shelter for a car—is satisfied by stilt
car parking space and such space is a garage. We are unable
to agree. The test accepted by Atkinson, J. in Barnett and
Block1 also does not support this argument. Even as per that
test a place having roof but offering no shelter or protection on
two sides cannot be a garage. It is worth repeating what
Atkinson,J. said, ‘….I am inclined to think that the ordinary man
in the street does regard a garage as connoting some sort of
building; how far he would go I do not know. I do not know
whether he would think that there should be a wall all round it,
or whether it would be sufficient if there were three sides walled
in and a roof. I have one in mind where there is row of sheds
without any protection in front, which are commonly spoken of
as “garages”.’ Atkinson,J. applied the test of ‘reasonable
protection and shelter for car’ as was suggested by the counsel
for the insurer while construing the term ‘garage’ in a policy of
insurance. For the purposes of MOFA, and particularly Section
NAHALCHAND LALOOCHAND PVT. LTD. v. PANCHALI COOPERATIVE HOUSING SOCIETY LTD. [R.M. LODHA, J.]
837
838
2(a-1), the term ‘garage’ must be considered as would be
understood by a flat purchaser and such person would
contemplate garage which has a roof and wall on three sides.
Our answer to question No. (ii) is, therefore, no.
A
Re: question no. (iii) – Whether stilt parking spaces are
part of ‘common areas and facilities’?
B
37. The High Court has held that the stilt car parking
spaces are part of the common amenities. Is the High Court
right in its view? MOFA does not define nor it explains ‘common
areas and facilities’ though the said phrase is used at various
places in that Act. Mr. Pravin K. Samdani, learned senior
counsel for Maharashtra Chamber of Housing Industry
submitted that following could be termed as part of the ‘common
areas’:
1
15% Recreation Ground (RG) Area;
2
Recreational facilities and/or club house on
above RG Areas;
3
Society Office;
4
Security guards cabin;
5
Common passage/lobbies;
6
Stair case;
7
Lift;
8
Terraces over the roof of the building;
9
Landings on each floor;
10
Columns and beams of the building
11
Playgrounds, if any.
A
B
C
C
D
D
SUPREME COURT REPORTS
[2010] 10 S.C.R.
According to him, the following could be part of ‘Limited
Common Areas’:
1
Separate lift attached to a particular flat and/
or certain number of flats;
2
Terrace attached to a flat;
3
Servants toilet on each floor, meant for the
user of the flats on that particular floor;
The aforesaid list as suggested by the learned senior counsel,
in our opinion, is not exhaustive. It may not be out of place to
refer to Section 3(f) of MAOA which defines ‘common areas
and facilities’ as follows:
“3(f) “common areas and facilities”, unless otherwise
provided in the Declaration or lawful amendments, thereto
means—
(1) the land on which the building is located;
E
F
E
F
(2) the foundations, columns, girders, beams, supports,
main walls, roofs, halls, corridors, lobbies, stairs, stairways, fire-escapes and entrances and exits of t he
buildings;
(3) the basements, cellars, yards, gardens, parking areas
and storage spaces;
(4) the premises for the lodging of janitors or persons
employed for the management of the property;
G
G
(5) installations of central services, such as power, light,
gas, hot and cold water, heating, refrigeration, air
conditioning and incinerating;
(6) the elevators, tanks, pumps, motors, fans,
compressors, ducts and in general all apparatus and
H
H
NAHALCHAND LALOOCHAND PVT. LTD. v. PANCHALI COOPERATIVE HOUSING SOCIETY LTD. [R.M. LODHA, J.]
839
installations existing for common use;
840
A
(7) such community and commercial facilities as may be
provided for in the Declaration; and
(8) all other parts of the property necessary or convenient
to its existence, maintenance and safety, or normally in
common use;”
It is true that interpretation clause or legislative definition in a
particular statute is meant for the purposes of that statute only
and such legislative definition should not control other statutes
but the parts of the property stated in clauses (2), (3) and (6)
of Section 3(f) as part of ‘common areas and facilities’ for the
purposes of MAOA are what is generally understood by the
expression ‘common areas and facilities’. This is fortified by
the fact that the areas which according to the learned senior
counsel could be termed as ‘common areas’ in a building
regulated by MOFA are substantially included in aforenoticed
clauses of Section 3(f) of MAOA. Looking to the scheme and
object of MOFA, and there being no indication to the contrary,
we find no justifiable reason to exclude parking areas (open to
the sky or stilted portion) from the purview of ‘common areas
and facilities’ under MOFA.
38. It was argued that under MOFA it is for the promoter
to prescribe and define at the outset the ‘common areas’ and
unless it is so done by the promoter, the parking area cannot
be termed as part of ‘common areas’. We are quite unable to
accept this submission. Can a promoter take common
passage/lobbies or say stair case or RG area out of purview
of `common areas and facilities’ by not prescribing or defining
the same in the `common areas’? If the answer to this question
is in negative, which it has to be, this argument must fail. It was
also submitted that by treating open/stilt parking space as part
of ‘common areas’, every flat purchaser will have to bear
proportionate cost for the same although he may not be
interested in such parking space at all. We do not think such
B
C
D
E
F
G
H
SUPREME COURT REPORTS
[2010] 10 S.C.R.
A consideration is relevant for the consideration of term ‘common
areas and facilities’ in MOFA. It is not necessary that all flat
purchasers must actually use ‘common areas and facilities’ in
its entirety. The relevant test is whether such part of the building
is normally in common use. Then it was submitted that if a
B parking space is sold to a flat purchaser, it is to the exclusion
of other flat purchasers and, therefore, logically also it cannot
be part of ‘common areas’. This submission is founded on
assumption that parking space (open/covered) is a ‘garage’
and sellable along with the flat. We have, however, held in our
C discussion above that open to the sky parking area or stilted
portion usable as parking space is not ‘garage’ within the
meaning of Section 2(a-1) and, therefore, not sellable
independently as a flat or along with a flat. As a matter of fact,
insofar as the promoter is concerned, he is not put to any
prejudice financially by treating open parking space/stilt parking
D
space as part of ‘common areas’ since he is entitled to charge
price for the common areas and facilities from each flat
purchaser in proportion to the carpet area of the flat. MOFA
mandates the promoter to describe ‘common areas and
facilities’ in the advertisement as well as the ‘agreement’ with
E the flat purchaser and the promoter is also required to indicate
the price of the flat including the proportionate price of the
‘common areas and facilities’. If a promoter does not fully
disclose the common areas and facilities he does so at his own
peril. Stilt parking spaces would not cease to be part of
F common areas and facilities merely because the promoter has
not described the same as such in the advertisement and
agreement with the flat purchaser. Although there is some merit
in the contention of the appellant that High Court erred in
placing reliance on the two aspects—namely, that the area of
G stilt parking space is not included in the FSI and such area is
not assessable to the corporation taxes - in reaching the
conclusion that stilt parking space is part of ‘common areas’
but in our view even if these two aspects are excluded, in what
we have discussed above stilt parking space/open parking
H space of a building regulated by MOFA is nothing but a part of
NAHALCHAND LALOOCHAND PVT. LTD. v. PANCHALI COOPERATIVE HOUSING SOCIETY LTD. [R.M. LODHA, J.]
841
‘common areas’ and, accordingly, we answer question no. (iii)
in the affirmative.
842
A
Re: question no. (iv) – what are the rights of a promoter
vis-à-vis society in respect of stilt parking spaces?
39. We have now come to the last question namely—what
are the rights of a promoter vis-à-vis society (of flat purchasers)
in respect of stilt parking space/s. It was argued that the right
of the promoter to dispose of the stilt parking space is a matter
falling within the domain of the promoter’s contractual, legal and
fundamental right and such right is not affected. This argument
is founded on the premise, firstly, that stilt parking space is a
‘flat’ by itself within the meaning of Section 2(a-1) and in the
alternative that it is not part of ‘common areas’. But we have
already held that ‘stilt parking space’ is not covered by the term
‘garage’ much less a ‘flat’ and that it is part of ‘common areas’.
As a necessary corollary to the answers given by us to question
nos. (i) to (iii), it must be held that stilt parking space/s being
part of ‘common areas’ of the building developed by the
promoter, the only right that the promoter has, is to charge the
cost thereof in proportion to the carpet area of the flat from each
flat purchaser. Such stilt parking space being neither ‘flat’ under
Section 2(a-1) nor ‘garage’ within the meaning of that provision
is not sellable at all.
40. MOFA was enacted by the Maharashtra Legislature as
it was found that builders/developers/promoters were indulging
in malpractices in the sale and transfer of flats and the flat
purchasers were being exploited. The effect of MOFA may be
summarized as follows. First, every promoter who constructs
or intends to construct block or building of flats in the area to
which MOFA applies has to strictly adhere to the provisions
contained therein, i.e., inter alia, he has to make full and true
disclosure of the nature of his title to the land on which the flats
are constructed and also make disclosure in respect of the
extent of the carpet area of the flat and the nature, extent and
description of the common areas and facilities when the flats
B
C
D
E
F
G
H
SUPREME COURT REPORTS
[2010] 10 S.C.R.
A are advertised for sale. Secondly, the particulars which are set
out in Section 4(1A) (a) (i) to (x) have to be incorporated in the
agreement with the flat purchaser. Thirdly, the promoter has to
apply to the Registrar for registration of the organization (cooperative society or company or condominium) as soon as
B minimum number of persons required to form such
organization have taken flats. As regards unsold flats, the
promoter has to join such organization although his right to
dispose of unsold flats remains unaffected. Fourthly, and more
importantly, the promoter has to take all necessary steps to
C complete his title and convey to the organization his right, title
and interest in the land and building and execute all relevant
documents accordingly. It was argued by Mr. Tanmaya Mehta,
learned counsel for the promoter that in view of the provisions
of MOFA, Section 6 of T.P. Act and Article 300A of the
Constitution, the right of the promoter to transfer parking spaces
D
is not at all restricted. Relying upon the decisions of this Court
in ICICI Bank Ltd. v. SIDCO Leathers Ltd. & Ors..4, Karnataka
State Financial Corporation v. N. Narasimahaiah & Ors.5 and
Bhikhubhai Vithlabhai Patel & Ors., v. State of Gujarat & Anr.6,
he submitted that the provisions contained in MOFA must be
E construed strictly and there is no provision either express or by
necessary implication in MOFA restricting the sale of stilt or
open parking spaces. Mr. Sunil Gupta also argued that
promoter continues to have contractual, legal and fundamental
right to dispose of the stilt/open parking space in the manner
F in which he proposes and his consumers accept. We think this
argument does not bear detailed examination. Suffice it to say
that if the argument of learned senior counsel and counsel for
promoter is accepted, the mischief with which MOFA is
obviously intended to deal with would remain unabated and flat
G purchasers would continue to be exploited indirectly by the
promoters. In our opinion, MOFA does restrict the rights of the
H
4.
(2006) 10 SCC 452.
5.
(2008) 5 SCC 176.
6.
(2008) 4 SCC 144.
NAHALCHAND LALOOCHAND PVT. LTD. v. PANCHALI COOPERATIVE HOUSING SOCIETY LTD. [R.M. LODHA, J.]
843
promoter in the block or building constructed for flats or to be
constructed for flats to which that Act applies. The promoter has
no right to sell any portion of such building which is not ‘flat’
within the meaning of Section 2(a-1) and the entire land and
building has to be conveyed to the organisation; the only right
remains with the promoter is to sell unsold flats. It is, thus, clear
that the promoter has no right to sell ‘stilt parking spaces’ as
these are neither ‘flat’ nor appurtenant or attachment to a ‘flat’.
41. In view of the above, it is not at all necessary to deal
with the factual submissions advanced by Mr. Tanmaya Mehta.
Having regard to the answer to question no. (iv), the finding of
the High Court that undertakings are neither binding on the flat
purchasers nor the society also warrants no interference.
42. These appeals, accordingly, fail and are dismissed with
no order as to costs.
N.J.
Appeal dismissed.
[2010] 10 S.C.R. 844
A
A
B
B
JAMES JOSEPH
v.
STATE OF KERALA
(Civil Appeal No. 7207 of 2010)
AUGUST 31, 2010
[R.V. RAVEENDRAN AND H.L. GOKHALE, JJ.]
Kerela Forest Act, 1961:
C
ss. 12A and 11 – Appeal u/s. 12A, against appellate order
u/s. 11 – Scope of – Held: Appeal u/s. 12A is available both
in respect of questions of fact and questions of law – It would
lie without specifying any limitation or restriction – Sub-section
(2) of s. 12A/r. 2(1) and form of appeal under Kerala Forest
(Appeal to the High Court) Rules does not require the
D
memorandum of appeal to state substantial questions of law
involved – On facts, there was no need for High Court to frame
any substantial question of law while admitting appeal or
before posting the appeal for hearing – Order of High Court
that s. 12A does not provide for ‘second appeal’ but only for
E an appeal against appellate order and was not limited to
substantial questions of law, justified – Appeal – Kerala Forest
(Appeal to the High Court) Rules 1981 – Code of Civil
Procedure, 1908 – s. 100.
C
F
s. 12A and s. 100 CPC – Difference between – Stated –
Code of Civil Procedure, 1908 – s. 100.
Appeal – Appeals from appellate orders – General
principles – Stated.
G
The State Government issued a notification under
Section 4 of the Travancore Forest Regulation II of 1068
ME proposing to declare certain lands as revenue forest.
The appellant’s predecessor claimed title to certain lands
since the said land formed part of the proposed reserve
H
844
JAMES JOSEPH v. STATE OF KERALA
845
forest. The Forest Settlement Officer rejected the claim.
However, the Additional District Judge allowed the
appeal. Aggrieved, the respondent-State Government
filed an appeal under Section 12A of the Kerala Forest
Act, 1961. The High Court allowed the second appeal.
Thereafter, on appeal by the appellant, the Supreme Court
remanded the matter to the High Court for consideration
afresh. The High Court held that Section 12A of the Act
does not provide for a ‘second appeal’ but only provides
for an appeal against an appellate order and was not
limited to substantial questions of law. Therefore, the
appellant filed the instant appeal.
846
A
A
B
B
C
C
Dismissing the appeal, the Court
HELD: 1.1 Section 100 of the Code of Civil
Procedure, 1908 limits the jurisdiction in an appeal. It
specifically provides that the second appeal will be
available only where there exists substantial question of
law. Some enactments do not specify that the second
appeal will be restricted to substantial questions of law,
but incorporate Section 100 of the Code by reference, in
regard to appeals from appellate orders. [Para 14] [857C-D]
D
D
E
E
F
F
G
G
H
H
1.2 The principles with reference to appeals are:
(i) An appeal is a proceeding where an higher forum
reconsiders the decision of a lower forum, on
questions of fact and questions of law, with
jurisdiction to confirm, reverse, modify the decision
or remand the matter to the lower forum for fresh
decision in terms of its directions.
(ii) The appellate jurisdiction can be limited or
regulated by the legislature and its extent has to be
decided with reference to the language employed by
the statute conferring the appellate jurisdiction.
SUPREME COURT REPORTS
[2010] 10 S.C.R.
(iii) The width of jurisdiction or the limitations on
jurisdiction with reference to an appeal, does not
depend on whether the appeal is a first appeal or a
second appeal, but depends upon the limitations, if
any, placed by the statute conferring the right of
appeal.
(iv) If the Legislature’s intention is to limit the
jurisdiction in an appeal, it may indicate such limits
in the provision providing for appeal. Alternatively, it
may expressly or impliedly incorporate the provisions
of section 100 of the Code, into the provision for
appeals.
(v) Generally statutory provisions for appeals against
original orders or decrees (that is, first appeals) will
not have any limitations and, therefore, rehearing on
both law and fact is contemplated; and statutory
provisions for appeals against appellate orders (that
is, second appeals) will be restricted to questions of
law. But such restriction is not on account of any
legal principle that all second appeals should always
be with reference to questions of law, but would
depend upon the wording of the statute placing the
restrictions upon the scope of second appeal.
(vi) Where the statute does not place any limitations
or restrictions in regard to the scope and width of the
appeal, it shall be construed that the appeal provides
a right of rehearing on law as well as facts. If the
Legislature enacts a self-contained provision for
second appeals, without any limitation upon the
scope of the second appeal and excludes the
possibility of reading the provision of Section 100 of
the Code, into such provision, then, it will not be
permissible to read the limitations of Section 100 of
the Code into the special provision. [Para 16] [860F-H; 861-A-G]
JAMES JOSEPH v. STATE OF KERALA
847
1.3 The following differences in Section 12A of the
Kerala Forest Act, 1961 and Section 100 of the Code
demonstrate that Section 12A of the Act is intended to be
self-contained in so far as appeals under the Act to the
High Court, deliberately deviating from the provisions of
Section 100 of the Code:
(i) Sub-sections (1), (3) and (4) of Section 100 of the
Code provide specifically that the second appeal
would lie only where substantial questions of law are
involved. On the other hand, Section 12 A does not
use the words ‘second appeal’; sub-section (1) of
Section 12A provides for an appeal against the order
of the appellate authority under Section 11 of the Act,
without specifying any limitation or restriction. The
word appeal is not defined either under the Act or
under the Code.
(ii) Section 100 of the Code begins with the words
“Save as otherwise expressly provided … by any
other law”. This means that a second appeal can be
to a court or Tribunal other than the High Court, or
that second appeal need not be restricted to
substantial questions of law, if so provided by other
law. Section 12A of the Act is one such provision of
other law, expressly providing otherwise.
(iii) Where the Act wants to adopt the provisions of
the Code, it expressly provided so. Sub-section (5)
of Section 12A and Section 83 expressly refer to and
make applicable the provisions of the Code in other
contexts. But when it comes to appeals to High
Court, Section 12A of the Act deliberately chalks a
different path from Section 100 of the Code.
(iv) While sub-section (3) of Section 100 of the Code
requires the appellant to precisely state the
substantial question of law in the memorandum of
848
A
A
B
B
C
C
D
D
E
F
SUPREME COURT REPORTS
[2010] 10 S.C.R.
appeal, sub-section (2) of Section 12A of the Act read
with Rule 2(1) and the form of appeal under the
Kerala Forest (Appeal to the High Court) Rules 1981,
does not require the appeal memorandum to state
any questions of law, substantial or otherwise. The
provisions of sub-section (3) of Section 12A also
clearly reiterates by implication that the jurisdiction
of the High Court under Section 12A is not subject
to any limitations. [Para 9 and 18] [855-D-E; 864-E-H;
865-A-E]
1.4. The High Court was right in holding that the
appeal under Section 12A of the Act is available both in
respect of questions of fact and questions of law.
Therefore, there is no need for the High Court to frame
any substantial question of law. [Para 19] [865-F]
Chunilal Vithal Das vs. Mohanlal Motilal Patel (1966)
Supp SCR 180; Chappan v. Moidin Kutti ILR (1899) 22
Madras 68; Tirupati Balaji Developers (P) Ltd. v. State of
Bihar 2004 (5) SCC 1; Hari Shankar v. Rao Girdhari Lal
E Chowdhury 1962 Supp. (1) SCR 933; Shankar Ramchandra
Abhyankar v. Krishnaji Dattatreya Bapat 1969 (2) SCC 74;
Sri Raja Lakshmi Dyeing Works v. Rangaswamy Chettiar AIR
1980 SC 1253 – referred to.
Black’s Law Dictionary – 7th Edn. – referred to.
F
Case Law Reference:
G
H
G
H
ILR (1899) 22 Madras 68
Referred to.
Para 10
2004 (5) SCC 1
Referred to.
Para 10
1962 Supp. (1) SCR 933
Referred to.
Para 11
1969 (2) SCC 74
Referred to.
Para 12
AIR 1980 SC 1253
Referred to.
Para 13
(1966) Supp SCR 180
Referred to.
Para 15
JAMES JOSEPH v. STATE OF KERALA
849
CIVL APPELLATE JURISDICTION : Civil Appeal No.
7207 of 2010.
From the Judgment & Order dated 23.03.2007 of the High
Court of Kerala at Ernakulam in I.A. No. 955 of 2005 in MSA.
1 of 1981.
850
A
B
R.S. Hegde, P.P. Singh for the Appellant.
3. The State Government filed an appeal against the said
appellate judgment before the High Court under section 12A
of the Act. (MSA No.1/1981). The High Court allowed the
second appeal and reversed the judgment of the District Judge.
The order of the High Court was challenged by the appellant.
B This Court by order dated 25.11.2003 allowed the civil appeal
filed by the appellant and remanded the matter to the High Court
for fresh consideration, with the following observation :
C
C
D
D
R.V. RAVEENDRAN, J. 1. Leave granted.
2. This appeal relates to the scope of an appeal against
an appellate order under section 12A of the Kerala Forest Act,
1961 (‘Act’ for short). The State Government issued a
notification under section 4 of the Travancore Forest Regulation
II of 1068 ME proposing to declare certain lands including the
disputed lands as revenue forest. The appellant’s predecessor
in title filed a written statement before the Forest Settlement
Officer under section 6 of the Act in (claim case No.2/1955)
claiming title to the disputed lands, which formed part of the
proposed reserve forest. The Forest Settlement Officer by
common order dated 14.11.1969 rejected his claim inter alia
holding that the notified areas were lands at the disposal of the
government and the government was entitled to constitute the
same as a reserve forest. Feeling aggrieved the appellant’s
predecessor filed an appeal against the order of the Forest
Settlement Officer under section 11 of the Act. The appeal was
allowed by the first Additional District Judge, Ernakulam by
common judgment dated 23.6.1980 holding that the Royal Neet
of 1928 ME to which the appellant traced back his title was a
genuine document and the notification issued by the
Government in respect of the proposed reserve forest was
without jurisdiction.
E
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[2010] 10 S.C.R.
A
Jaideep Gupta, G. Prakash, Beena Prakash, V. Senthil for
the Respondent.
The Judgment of the Court was delivered by
SUPREME COURT REPORTS
“… some decisions have also been referred, to that the
jurisdiction under Section 12A of the Act is akin to Section
100 C.P.C. We feel that since the matter is fit to be
remanded for fresh decision this question as raised may
also be better canvassed before the High Court for its
consideration.”
4. When the matter was pending before the High Court on
remand, the appellant (who is the 33rd respondent in the said
appeal) filed an application (IA No.955/2005) praying that the
High Court be pleased to formulate the substantial questions
of law before proceeding with the hearing of appeal. He
E contended that the appeal under section 12A was a second
appeal; that a second appeal was available only if the case
involved any substantial question of law and was governed by
the provisions of section 100 of the Code of Civil Procedure
(‘Code’ for short); and that the High Court should therefore,
F before hearing the second appeal, formulate the questions of
law involved in the appeal. The High Court by the impugned
order dated 23.3.2007 dismissed the said application. The
High court held that section 12A of the Act did not provide for
a “second appeal”, but only provides for an appeal against an
appellate order and therefore the question of importing the
G
requirements of section 100 of the Code into such an appeal
did not arise; that the intention of the legislature in enacting
section 12A of the Act, granting a right of appeal against an
order passed by the District Court under section 11 of the Act,
H
JAMES JOSEPH v. STATE OF KERALA
[R.V. RAVEENDRAN, J.]
851
was not limited to substantial questions of law; and therefore
the question of formulating any substantial questions of law
before hearing the appeal did not arise.
5. The said order of the High Court is challenged in this
appeal by special leave. The appellant contends that an appeal
under section 12A of the Act is a ‘second appeal’; that a second
appeal is available only in regard to questions of law and not
in regard to any question of fact; that whenever there is a
second appeal from a District Court/Civil Court to the High
Court, such second appeal will be governed by section 100 of
the Code and it will be maintainable only if it involves a
substantial question of law; and that where the High Court is
satisfied that the second appeal involves any substantial
questions of law, it should formulate the said questions of law.
Questions for considerations
A
A
B
B
C
C
D
D
E
E
6. On the contentions raised, the questions that therefore
arise for our consideration in this appeal are :
(i) Whether an appeal under section 12A of the Kerala
Forest Act, 1961 against an appellate order under section 11
of the said Act, would lie only if it involves a substantial question
of law?
(ii) If so, whether the Memorandum of appeal shall have
to state the substantial question of law involved in the appeal
and whether the High Court is bound to formulate the substantial
question/s of law, while admitting the appeal or before posting
the appeal for hearing.
The relevant legal provisions
SUPREME COURT REPORTS
852
F
G
F
G
7. The answers to the questions raised depend upon the
scheme of chapter II of the Act relating to Reserved forests. The
relevant portions of Sections 4, 5, 6, 8, 9, 11, 12A and 83 of
the Act are extracted below :
[2010] 10 S.C.R.
“4. Notification by Government.- Whenever it is
proposed to constitute any land a Reserved Forest, the
Government shall publish a notification in the Gazette- x x
x
[c] appointing an officer (hereinafter called the Forest
Settlement Officer) to inquire into and determined the
existence, nature and extent of any rights claimed, by or
alleged to exist in favour of any person in or over any land
comprised within such limits, or to any forest produce of
such land and to deal with the same as provided in this
Act.”
“5. Suits barred.- Except as hereinafter provided, no Civil
court shall between the dates of publication of the
notification under section 4, and of the notification to be
issued under section 19, entertain any suit against the
Government to establish any right in or over any land, or
to the forest produce of any land, included in the notification
published under section 4.”
“6.
Proclamation by Forest Settlement Officer.-
(1) When a notification has been issued under section 4,
the Forest Settlement Officer shall publish in the Gazette
and at the headquarters of each Taluk in which any portion
of the land included in such notification is situate, and in
every town, village and headquarters of Panchayats in the
neighbourhood of such land a proclamation.
(a) specifying, as nearly as possible, the situation and
limits of the land proposed to be included within the
Reserved Forest.
(b) setting forth the substance of the provisions of
section 7,
H
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(c) explaining the consequences which as hereinafter
provided will ensure on the reservation of such forest, and
JAMES JOSEPH v. STATE OF KERALA
[R.V. RAVEENDRAN, J.]
853
(d) fixing a period of not less than three and not
exceeding six months from the date of publishing such
proclamation in the gazette, and requiring every person
claiming and right referred to in section 4 either to present
to such Officer, within such period, a written statement
specifying or to appear before him within such period and
state, the nature of such right and in either case, to
produce, all documents and other evidence in support
thereof.
(2) The Forest Settlement Officer shall also serve a
notice to the same effect on every known or reputed owner
or occupier of any land included in or adjoining the land
proposed to be constituted a Reserved Forest or on his
recognized agent or manager. Such notice may be sent
by registered post.”
“8.
854
A
A
(2) He shall, at the same time, consider and record any
objection which the Forest Officer, if any, appointed under
section 4 to attend at the inquiry on behalf of the
Government, may make to any such claim.
(3) He may also inquire into and record the existence
of any rights referred to in section 4 and not claimed in
answer to the notice issued under section 6, so far as they
are ascertainable from the records of the Government and
the evidence of any person likely to be acquainted with the
same.
9.
Powers of Forest Settlement Officer.- For the
purpose of such inquiry, the Forest Settlement Officer may
[2010] 10 S.C.R.
exercise the following powers, namely:(a) the power to enter by himself or to authorize any
officer to enter upon and land, and to survey, demarcate
and make a map of the same; and
B
B
(b)
the powers of a Civil Court in the trial of suits.”
“11. Appeals from the Orders of Settlement Officer.-
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D
E
E
Inquiry by Forest Settlement Officer.-
(1) The Forest Settlement Officer shall inquire into all
claims made under section 6 recording all statements and
the evidence in the manner prescribed by the Code of Civil
Procedure for appealable cases.
SUPREME COURT REPORTS
F
F
(1) Where a claim is rejected wholly or in part, the claimant
may, within ninety days from the date of the order prefer
an appeal to the District Court in respect of such rejection
only. The time taken for obtaining copies of the order
appealed against shall be excluded in computing the
period of ninety days.
(2) Whenever a claim is admitted in the first instance wholly
or in part, a like appeal may be preferred on behalf of
Government by the Forest Officer appointed under section
4, or other person generally or specially empowered by the
Government in this behalf.”
“12A. Appeal to the High Court.(1) The Government or any person objecting to any order
of the District Court in an appeal under section 11 may,
within a period of ninety days from the date of that order,
appeal against such order to the High Court:
xxxxx
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83. Decision or order of Forest Settlement Officer
to have the effect of District Court decrees.- Any
decision or order passed by a Forest settlement Officer
under this Act and any order passed in appeal there from
shall be enforceable by the District Court within whose
jurisdiction the land is situated as if it were a decree
passed by such District Court under the Code of Civil
Procedure, 1908.
JAMES JOSEPH v. STATE OF KERALA
[R.V. RAVEENDRAN, J.]
855
8. The following hierarchical structure in regard to appeals
emerges from the provisions of the Act :
(a) The claims to any land proposed to be included in the
reserved forest under the Act, are inquired into and determined
by the Forest Settlement Officer;
856
A
A
B
B
(b) If the claims are rejected an appeal lies to District Court
at the instance of the claimant and if the claim is admitted, an
appeal lies to the District Court at the instance of the State
Government.
10. The classic definition of an appeal in Chappan v.
Moidin Kutti [ ILR (1899) 22 Madras 68], by a Full Bench of
the Madras High Court, adopted by this Court, in Tirupati Balaji
Developers (P) Ltd. v. State of Bihar [2004 (5) SCC 1], is as
follows :
“Appeal implies in its natural and ordinary meaning the
removal of a cause from any inferior court or tribunal to a
superior one for the purpose of testing the soundness of
decision and proceedings of the inferior court or tribunal.
The superior forum shall have jurisdiction to reverse,
confirm, annul or modify the decree or order of the forum
appealed against and in the event of a remand the lower
forum shall have to rehear the matter and comply with such
[2010] 10 S.C.R.
directions as may accompany the order of remand. The
appellate jurisdiction inherently carries with it a power to
issue corrective directions binding on the forum below. …
An appeal is a process of civil law origin and removes a
cause, entirely subjecting the facts as well as the law, to
a review and a retrial.”
(emphasis supplied)
11. In Hari Shankar v. Rao Girdhari Lal Chowdhury [1962
Supp. (1) SCR 933], this court held :
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(c) Either the State Government or any person objecting
to any order of the District Court in an appeal under section
11 of the Act can file an appeal against the appellant order, to
the High Court.
9. Section 12A does not use the words “second appeal”.
It provides that an appeal would lie against an appellate order
under section 11 to the High Court. The word ‘appeal’ is not
defined either under the Act or under the Code. Black’s Law
dictionary, (7th edn.) defines an appeal as “a proceeding
undertaken to have a decision reconsidered by bringing it to a
higher authority.”
SUPREME COURT REPORTS
“A right of appeal carries with it a right of rehearing on
law as well as fact, unless the statute conferring the right
of appeal limits the rehearing in some way as, we find,
has been done in second appeals arising under the Code
of Civil Procedure.”
(emphasis supplied)
E
F
12. In Shankar Ramchandra Abhyankar v. Krishnaji
Dattatreya Bapat [1969 (2) SCC 74], this court referred to the
E statement in Story on Constitution (of United States), Vol. 2,
Article 1761 that the essential criterion of appellate jurisdiction
is that it revises and corrects the proceedings in a cause
already instituted and does not create that cause. The appellate
jurisdiction may be exercised in a variety of forms and,
F indeed, in any form in which the Legislature may choose to
prescribe. An appeal is a process of civil law origin and
removes a cause, entirely subjecting the fact as well as the
law to a review and a retrial.
G
13. In Sri Raja Lakshmi Dyeing Works v. Rangaswamy
G Chettiar [AIR 1980 SC 1253], this court held :
H
“Ordinarily, appellate jurisdiction involves a rehearing, as
it were, on law as well as fact and is invoked by an
aggrieved person. Such jurisdiction may, however, be
limited in some way as, for instance has been done in the
H
JAMES JOSEPH v. STATE OF KERALA
[R.V. RAVEENDRAN, J.]
857
case of second appeal under the Code of Civil Procedure,
and under some Rent Acts in some States.”
This Court thereafter proceeded to explain the scope of
revisional jurisdictional and then concluded that the question of
the extent of appellate or revisional jurisdiction has to be
considered in each case with reference to the language
employed by the statute.”
14. Section 100 of the Code is a classic example of
limiting the jurisdiction in an appeal. It specifically provides that
the second appeal will be available only where there exists
substantial question of law. Some enactments do not specify
that the second appeal will be restricted to substantial
questions of law, but incorporate section 100 of the Code by
reference, in regard to appeals from appellate orders. Section
18(1) of the Telecom Regulatory Authority of India Act, 1997 is
an example :
“18. Appeal to Supreme Court – (1) Notwithstanding
anything contained in the Code of Civil Procedure, 1908
(5 of 1908) or in any other law, an appeal shall lie against
any order, not being an interlocutory order, of the Appellate
Tribunal to the Supreme Court on one or more of the
grounds specified in section 100 of that Code.”
Some other statutes have provisions in regard to appeals from
appellate orders placing specific limitations on the extent and
scope of the appellate jurisdiction by providing that a second
appeal will lie only if it involves substantial questions of law or
questions of law, without reference to section 100 of the Code.
We may by way of illustration, refer to the following :
Section 260A of Income Tax Act, 1961.
858
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B
A
B
SUPREME COURT REPORTS
[2010] 10 S.C.R.
question of law.
(2) The Chief Commissioner or the Commissioner or an
assessee aggrieved by any order passed by the Appellate
Tribunal may file an appeal to the High Court and such
appeal under this sub-section shall be (a) filed within one hundred and twenty days from the date
on which the order appealed against is received by the
assessee or the Chief Commissioner or Commissioner;
C
C
(b) [omitted]
(c) in the form of a memorandum of appeal precisely
stating therein the substantial question of law involved.
D
E
F
G
D
(3) Where the High Court is satisfied that a substantial
question of law is involved in any case, it shall formulate
that question.
E
(4) The appeal shall be heard only on the question so
formulated, and the respondents shall at the hearing of the
appeal, be allowed to argue that the case does not involve
such question:
F
Provided that nothing in this sub-section shall be deemed
to take away or abridge the power of the Court to hear,
for reasons to be recorded, the appeal on any other
substantial question of law not formulated by it, if it is
satisfied that the case involves such question.
G
(5) The High Court shall decide the question of law so
formulated and deliver such judgement thereon containing
the grounds on which such decision is founded and may
award such cost as it deems fit.
“Appeal to High Court.
(6)
260A. (1) An appeal shall lie to the High Court from every
order passed in appeal by the Appellate Tribunal, if the
High Court is satisfied that the case involves a substantial
(a) has not been determined by the Appellate Tribunal; or
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H
The High Court may determine any issue which -
(b) has been wrongly determined by the Appellate Tribunal,
JAMES JOSEPH v. STATE OF KERALA
[R.V. RAVEENDRAN, J.]
859
by reason of a decision on such question of law as is
referred to in sub-section (1).
(7) Save as otherwise provided in this Act, the provisions
of the Code of Civil Procedure, 1908 (5 of 1908) relating
to appeals to the High Court shall, as far as may be, apply
in the case of appeals under this section.
860
A
A
B
B
Section 15Z of the Securities and Exchange Board of
India Act, 1992
15Z. Appeal to Supreme Court.- Any person aggrieved
by any decision or order of the Securities Appellate C
Tribunal may file an appeal to the Supreme Court within
sixty days from the date of communication of the decision
or order of the Securities Appellate Tribunal to him on any
question of law arising out of such order ……….”
D
15. Some enactments impliedly incorporate the provisions
of section 100 of the Code. In Chunilal Vithal Das vs.
Mohanlal Motilal Patel – (1966) Supp SCR 180, this court
dealt with such a provision contained in section 28(1) of the
Saurashtra Rent Control Act, 1951, extracted below :
E
“Notwithstanding anything contained in any law, but subject
to the provisions of the Provincial Small Cause Court Act,
as adapted and applied to the State of Saurashtra, an
appeal shall lie from a decree or order made by a Civil
Judge or a Munsiff exercising jurisdiction under section
27 to the District Court and a second appeal to the High
Court.”
F
It was contended by the appellant-tenant therein that an
appellate court is competent to examine the correctness of the
G
decision appealed from on the ground that the decision is
erroneous in point of law or fact, and in the absence of any
express provision to the contrary, restrictions imposed on the
power of the High Court under one statute cannot be imported
merely because of similarity of nomenclature, when exercising
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SUPREME COURT REPORTS
[2010] 10 S.C.R.
jurisdiction under another statute unless those restrictions are
imposed by express enactment or necessary intendment. It was
further contended that as no restriction was imposed upon the
power of second appeal under section 28 of the Rent Act, the
High Court was competent and indeed bound to entertain all
objections to the correctness of the judgment including those
relating to questions of fact. This court negatived the said
contention. This court held that a second appeal under section
28 of the Saurashtra Act can be entertained by a High Court
within the limits prescribed by section 100 of the Code of Civil
Procedure and it is not open to the parties to demand reappraisal of the evidence by the High Court. This Court held
that the scheme of Saurashtra Act did not confer any special
jurisdiction upon the courts described therein, but it only
intended to provide for a second appeal in terms of section 100
of the Code. This Court held that the Saurashtra Act merely
declared that a second appeal will lie to the High Court against
decrees or orders passed by the courts exercising jurisdiction
under section 27, but thereby the essential character of a
second appeal under the Code was not altered and the
procedure in the trial of suit, applications and proceedings
under the Act, was the procedure prescribed by the Code of
Civil Procedure and therefore it had to be held that the
legislature intended to confer a right of second appeal subject
to the restrictions imposed by section 100 of the Code.
16. We may therefore formulate the following principles
with reference to appeals :
(i) An appeal is a proceeding where an higher forum
reconsiders the decision of a lower forum, on questions of fact
and questions of law, with jurisdiction to confirm, reverse, modify
the decision or remand the matter to the lower forum for fresh
decision in terms of its directions.
(ii) The appellate jurisdiction can be limited or regulated
by the legislature and its extent has to be decided with
reference to the language employed by the statute conferring
JAMES JOSEPH v. STATE OF KERALA
[R.V. RAVEENDRAN, J.]
861
the appellate jurisdiction.
(iii) The width of jurisdiction or the limitations on jurisdiction
with reference to an appeal, does not depend on whether the
appeal is a first appeal or a second appeal, but depends upon
the limitations, if any, placed by the statute conferring the right
of appeal.
(iv) If the Legislature’s intention is to limit the jurisdiction
in an appeal, it may indicate such limits in the provision
providing for appeal. Alternatively, it may expressly or impliedly
incorporate the provisions of section 100 of the Code, into the
provision for appeals.
(v) Generally statutory provisions for appeals against
original orders or decrees (that is, first appeals) will not have
any limitations and therefore rehearing on both law and fact is
contemplated; and statutory provisions for appeals against
appellate orders (that is, second appeals) will be restricted to
questions of law. But such restriction is not on account of any
legal principle that all second appeals should always be with
reference to questions of law, but would depend upon the
wording of the statute placing the restrictions upon the scope
of second appeal.
(vi) Where the statute does not place any limitations or
restrictions in regard to the scope and width of the appeal, it
shall be construed that the appeal provides a right of rehearing
on law as well as facts. If the Legislature enacts a self
contained provision for second appeals, without any limitation
upon the scope of the second appeal and excludes the
possibility of reading the provision of section 100 of the Code,
into such provision, then, it will not be permissible to read the
limitations of section 100 of the Code into the special provision.
17. We may now examine the scope of section 12A of the
Act with reference to the above principles. For convenience we
have juxtapositioned section 100 of the Code with section 12A
of the Act, to ascertain the scope of section 12A of the Act.
862
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B
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E
E
SUPREME COURT REPORTS
Section 12A of the Act.
“Appeal to the High Court”.-
Section 100 of the Code –
“Second appeal”.—
(1) The Government or any
person objecting to any
order of the District Court in
an appeal under section 11
may, within a period of ninety
days from the date of that
order, appeal against such
order to the High Court:
(1) Save as otherwise
expressly provided in the body
of this Code or by any other
law for the time being in force,
an appeal shall lie to the High
Court from every decree
passed in appeal by any Court
subordinate to the High Court,
if the High Court is satisfied
that the case involves a
substantial question of law.
Provided that High Court may
admit an appeal preferred
after the expiration of the
period of ninety days
aforesaid if it is satisfied that
the appellant had sufficient
cause for not preferring the
appeal within the said
period.
———
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[2010] 10 S.C.R.
(2) An appeal may lie under
this section from an appellate
decree passed ex parte.
(2) An appeal under subsection (1) shall be in the
prescribed form and shall be
verified in the prescribed
manner and shall be
accompanied by a fee of one
hundred rupees.
(3) In an appeal under this
section, the memorandum of
appeal shall precisely state the
substantial question of law
involved in the appeal.
(3) On receipt of an appeal
under sub-section (1), the
High Court may, after giving
the parties a reasonable
(4) Where the High Court is
satisfied that a substantial
question of law is involved in
any case, it shall formulate that
question.
JAMES JOSEPH v. STATE OF KERALA
[R.V. RAVEENDRAN, J.]
opportunity of being heard,
either in person or by a
representative:(a) confirm or cancel the
order of the District Court
appealed against; or
(b) set aside such order and
remand the case to the
District Court for decision
after such further enquiry as
may be directed; or
(c) pass such other orders as
it may think fit.
(4) Every order passed in
appeal under this section
shall be final.
(5) Any order passed by the
High Court under this section
shall be enforceable by the
District Court within whose
jurisdiction the land is
situated, as if it were a
decree passed by such
District Court under the Code
of Civil Procedure, 1908
(Central Act 5 of 1908.)
863
(5) The appeal shall be heard
on the question so formulated
and the respondent shall, at
the hearing of the appeal, be
allowed to argue that the case
does not involve such
question:
Provided that nothing in this
sub-section shall be deemed
to take away or abridge the
power of the Court to hear, for
reasons to be recorded, the
appeal on any other
substantial question of law,
not formulated by it, if it is
satisfied that the case involves
such question.
——-
864
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SUPREME COURT REPORTS
[2010] 10 S.C.R.
to the High Court) Rules 1981. The said form is extracted below
“Form Of Appeal
[See Rule 2]
B
C
D
B
(1)
Name or names (with full address/addresses
of the appellant/appellants.
(2)
Name or names (with full address/
addresses) of the person/persons who shall
be impleaded or brought on record as
respondent/respondents.
(3)
Statement of facts.
(4)
Grounds of Appeal.
(5)
Prayer.
C
D
Signature
Appellant(s)/Counsel for Appellant
E
E
The facts stated above are true to the best of my
knowledge and belief.
Signature
Appellant(s)/Counsel for Appellant
——-
The form of memorandum of Appeal referred to in section
12A(2) of the Act is prescribed by the Kerala Forest (Appeal
F
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18. The following differences in the two provisions
demonstrate that section 12A of the Act is intended to be self
contained in so far as appeals under the Act to the High Court,
deliberately deviating from the provisions of section 100 of the
Code :
(i) Sub-sections (1), (3) and (4) of section 100 of the Code
G provide specifically that the second appeal would lie only where
substantial questions of law are involved. On the other hand,
sub-section (1) of section 12A provides for an appeal against
the order of the appellate authority under section 11 of the Act
would lie, without specifying any limitation or restriction.
H
JAMES JOSEPH v. STATE OF KERALA
[R.V. RAVEENDRAN, J.]
(ii) Section 100 of the Code begins with the words “Save
as otherwise expressly provided … by any other law”. This
means that a second appeal can be to a court or Tribunal other
than the High Court, or that second appeal need not be
restricted to substantial questions of law, if so provided by other
law. Section 12A of the Act is one such provision of other law,
expressly providing otherwise.
(iii) Where the Act wants to adopt the provisions of the
Code, it expressly provided so. For example, sub-section (5)
of section 12A and section 83 expressly refer to and make
applicable the provisions of the Code in other contexts. But
when it comes appeals to High Court, section 12A of the Act
deliberately chalks a different path from section 100 of the
Code.
(iv) While sub-section (3) of section 100 of the Code
requires the appellant to precisely state the substantial question
of law in the memorandum of appeal, sub-section (2) of section
12A of the Act read with Rule 2(1) and the form of appeal under
the Kerala Forest (Appeal to the High Court) Rules 1981, does
not require the appeal memorandum to state any questions of
law, substantial or otherwise. The provisions of sub-section (3)
of section 12A also clearly reiterates by implication that the
jurisdiction of the High Court under section 12A is not subject
to any limitations.
19. In view of the above, the High Court was right in holding
that the appeal under section 12A of the Act is available both
in respect of questions of fact and questions of law. Therefore
there is no need for the High Court to frame any substantial
question of law. The appeal is dismissed as having no merit.
N.J.
[2010] 10 S.C.R. 866
865
A
A
B
B
C.S. MANI (DECEASED) BY LR C.S. DHANAPALAN
v.
B. CHINNASAMY NAIDU (DECEASED) BY LRS.
(Civil Appeal No. 5798 of 2002)
AUGUST 31, 2010
[R.V. RAVEENDRAN AND H.L. GOKHALE, JJ.]
Tamil Nadu Indebted Agriculturists (Temporary Relief)
Act, 1975:
C
D
E
F
G
C
s.4 – Execution of money decree against agriculturist –
Attachment of property – Execution application closed in view
of s.4 of the Act staying the execution against agriculturist –
After moratorium period ended, initiation of execution
D proceedings by decree-holder – Auction sale of attached
property – Validity of – Held: Auction sale was valid – There
was no withdrawal of attachment, nor any question of ‘eclipse
of attachment’ during the period of the statutory stay under the
Act – Attachment in execution already effected, continued
and was in effect, during the entire period of stay and on expiry
E
of moratorium period, the decree-holder became entitled to
continue the execution by proceeding with the sale – Sale of
attached property during subsistence of attachment by the
judgment-debtor was void – Code of Civil Procedure, 1908 –
s.51(b), O.21, rr.54, 55, 57, 58.
F
Code of Civil Procedure, 1908:
s.51(b), O.21, rr.54, 55, 57, 58 – Attachment of
immovable property effected in execution of a decree –
G Determination/removal of – Legal position discussed.
Appeal dismissed.
O.21, r.57 – Closure of execution application – Held: Is
not dismissal of execution application.
H
The appellant obtained a money decree against the
866
C.S. MANI (D) BY LR v. B. CHINNASAMY NAIDU
(DECEASED) BY LRS.
867
judgment-debtor (M). In the execution of the money
decree, the properties belonging to ‘M’ were attached on
29.12.1974. On 10.1.1975, the Tamil Nadu Indebted
Agriculturists (Temporary Relief) Act, 1975 came into force,
by virtue of which all the proceedings in applications for
execution of decrees in which relief was claimed against
the agriculturists were stayed until the expiry of one year
from the date of commencement of the said Act. As ‘M’
was an agriculturist, the execution proceedings in regard
to the decree obtained by the appellant against her were
closed on 15.2.1975. The moratorium period of one year
under the Debt Relief Act was extended from time to time
till 14.7.1979. After the moratorium period ended, the
appellant initiated execution proceedings afresh. In the
said execution proceedings, the attached suit property
was brought to auction sale on 6.6.1984 and in that
auction, the appellant purchased the sale property. ‘M’
filed an application under Section 47, CPC to set aside
the sale. The trial court set aside the sale. The first
appellate court reversed the order of trial court and
upheld the validity of sale. The High Court upheld the
same. In the meanwhile, on 17.2.1978, ‘M’ had sold the
attached property and the purchaser further sold the
property and ultimately the attached (suit) property came
to the respondent.
In 1985, the respondent filed a suit for declaration of
title over the suit property against the appellant. A decade
later, the respondent filed an additional document. As per
the document, the order dated 15.2.1975 was corrected
twenty years later on 19.7.1995 converting the attachment
which was to continue without any specific time limit, as
one to end on the expiry of six months. The said
correction was by way of an office note and without
notice to the appellant. The appellant challenged the
amendment before the High Court. The High Court held
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that a clerical mistake cannot be converted behind the
back of parties and remitted the matter to lower court with
direction to give notice to both the parties in respect of
the clarification required and the amendment to be made.
On 18.9.1996, the District Munsif addressed a
communication to the counsel of the appellant for making
correction in the suit register as well as in the certified
copies.
The trial court dismissed the suit. The first appellate
court upheld the order of trial court. It was concurrently
C
found by both the courts that the attachment effected on
29.12.1974 was not raised/withdrawn/determined and it
continued till the sale of the property in the court auction
on 6.6.1984 and, therefore, the sale in favour of appellant
was valid and the sales effected by ‘M’ during the
D subsistence of the attachment were invalid. The High
Court allowed the appeal holding that that when the Debt
Relief Act came into force, the executing court had closed
the execution proceedings on 15.2.1975 with an
observation that the attachment to continue for a period
E of six months, and at the end of six months the
attachment came to an end and was not revived or
renewed and auction sale in favour of the appellant was
not valid and consequently when ‘M’ sold the suit
property, it was not subject to any attachment and
F consequently, the respondent who purchased the suit
property was the owner of the suit property.
In the instant appeal, it was contended for the
appellant that on 15.2.1975, the executing court, while
closing the execution in view of the stay of execution
G
proceedings by the Debt Relief Act, had made it clear that
the attachment would continue.
Allowing the appeal, the Court
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C.S. MANI (D) BY LR v. B. CHINNASAMY NAIDU
(DECEASED) BY LRS.
869
HELD: 1.1. An attachment of an immovable property
in execution of a decree is made by an order prohibiting
the judgment-debtor from transferring or charging the
property in any way, and all persons from taking any
benefit from such transfer or charge (Order 21 Rule 54,
CPC), and it continues until the said property is sold and
the sale is confirmed, unless it is determined or removed
on account of any of the following reasons: (i) By
deemed withdrawal under Rule 55 Order 21, CPC, that is,
where the attachment is deemed to be withdrawn on
account of (a) the amount decreed with all costs, charges
and expenses resulting from the attachment being paid
into court; or (b) satisfaction of the decree being
otherwise made through the court or is certified to the
court; or (c) the decree being set aside or reversed. (ii)
By determination under Rule 57 Order 21, CPC, that is,
after any property has been attached in execution of a
decree, the court passes an order dismissing the
application for execution of the decree, but omits to give
a direction that the attachment shall continue. (iii) By
release of the property from attachment under Rule 58
Order 21, CPC, that is, when any claim is preferred to the
property attached in execution, or any objection is made
to the attachment, on the ground that the property is not
liable to such attachment and the court, on adjudication
of the claim or the objections, releases the property from
attachment. (iv) By operation of law, that is, on account
of any statute declaring the attachment in execution shall
cease to operate, or by the decree (in respect of which
the property is attached) being nullified, or by the
execution being barred by the law of limitation. (v) By
consent of parties, that is, where the decree holder and
the judgment debtor agree that the attachment be
withdrawn or raised. [Paras 8, 9] [877-C-H; 878-A-E]
870
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1.2. It is not the case of the respondent that there was
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[2010] 10 S.C.R.
determination of the attachment on account of any of the
grounds specified in Rule 55 or Rule 58 of Order 21, CPC.
There was also no agreement to raise the attachment nor
any application for withdrawing the attachment. It is clear
from Rule 57 of Order 21, CPC that where the court
B ‘dismisses’ the application for execution of the decree,
the attachment effected in execution, shall cease unless
the court indicates that the attachment shall continue. But
where the execution petition is adjourned ‘sine die’ or
closed on account of any moratorium or stay of the
C execution under a statute, or by an order of stay by any
court, there is no “dismissal” of the execution
application. Similarly, where the execution application is
closed without any specific cause, apparently for
purposes of statistical disposal, there is no ‘dismissal’ of
the execution application. An execution application is
D
‘dismissed’ when (i) the execution is dismissed as a
consequence of the decree being found to be null and
void or inexecutable (as contrasted from any temporary
eclipse of the decree); or (ii) the execution is dismissed
on the ground of any default on the part of the decreeE holder. [Paras 10, 11] [879-B-F]
A
1.3. The execution application of the appellant was
closed on 15.2.1975 in view of Section 4 of the Tamil Nadu
Indebted Agriculturists (Temporary Relief) Act, 1975
F staying the executions against agriculturists. What was
stayed or kept in abeyance during the period when the
statutory stay of execution operated under the Act, was
not the attachment, but the further proceedings in
pursuance of the attachment, that is, sale of the attached
G property. The stay was only for a specified limited period.
On the expiry of the moratorium period under the Debt
Relief Act on 17.10.1979, the decree holder became
entitled to continue the execution by proceeding with the
sale. Thus, there was no question of determination or
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C.S. MANI (D) BY LR v. B. CHINNASAMY NAIDU
(DECEASED) BY LRS.
871
withdrawal of attachment, nor any question of ‘eclipse of
attachment’ during the period of the statutory stay under
the Debt Relief Act, nor any ‘revival’ of attachment
thereafter. Attachments in execution, already effected,
continued and were in effect, during the entire period of
stay of execution by the Debt Relief Act. The alienations
by ‘M’ were, therefore, void as against the claim
enforceable under the attachment obtained by appellant,
having regard to Sec. 64 of the Code. As the attachment
obtained by the appellant continued, the sales by ‘M’ were
invalid and the sale in favour of the appellant was valid.
[Paras 11, 12] [879-D-H; 880-A-E]
2.1. If the order of the executing court while closing
the execution, was ‘attachment to continue’, the
attachment would have continued in spite of the closing
of the execution proceedings. Even if the executing court
had closed the execution, in view of the statutory stay,
without any specific order continuing the attachment, the
attachment would not have ceased as there was no
‘dismissal’ of execution under Order 21 Rule 57, CPC. But
if the order dated 15.2.1975 had stated ‘attachment to
continue for six months’, whether right or wrong, the
attachment would have come to an end on the expiry of
six months from 15.2.1975, unless it was continued by
any subsequent order, or had been modified or set aside
by a higher court. [Para 14] [881-C-E]
2.2. The High Court erred in proceeding on the basis
that by order dated 15.2.1975, the executing court had
closed the execution proceedings in view of the
enactment of the Debt Relief Act and continued the
attachment only for six months and thereafter there was
no attachment and, therefore, the sales by ‘M’ on
17.2.1978 and 8.12.1980 were valid and the court auction
sale in favour of the appellant was invalid. When the Debt
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Relief Act clearly indicated that the attachment would
continue during the period when the execution
proceedings were stayed, it is ununderstandable how the
executing court could make an order that the attachment
would continue only for six months. Moreover, when the
B order dated 15.2.1975 stated “attachment to continue”, it
is ununderstandable how the said order could have been
amended after 20 years without notice to the plaintiffdecree holder on the basis of some private clarification
letter dated 29.10.1985 allegedly written by the District
C Munsif stating that the order made on 15.2.1975 was not
“attachment to continue” but “attachment to continue for
six months”. Also, when the order dated 19.7.1995
amending the order dated 15.2.1975 was set aside by the
High Court by order dated 22.12.1995 with a direction for
D fresh disposal in accordance with law after notice to the
parties, it is ununderstandable how the District Munsiff,
instead of complying with the order of the High Court,
could have issued a notice dated 18.9.1996 to both
counsel stating that the said correction adding the words
“for six months” was required to be made in the certified
E
copies, if any obtained by the Advocates, and that both
side Advocates should produce the certified copies for
making the correction. The notice dated 18.9.1996, by no
stretch of imagination, could be construed as an order.
The notice dated 18.9.1996 was apparently issued under
F an erroneous impression that the High Court had
accepted the correction, but had directed making of the
correction in the certified copies after notice to the
parties. The amendment made pursuant to the office note
dated 19.7.1995 having been set aside by order dated
G 22.12.1995, and no further order having been made
thereafter by the executing court, the unauthorized
addition of the words “for six months” in the order dated
15.2.1975 have to be ignored and excluded. Therefore,
the attachment dated 29.12.1974 continued till the
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C.S. MANI (D) BY LR v. B. CHINNASAMY NAIDU
(DECEASED) BY LRS.
873
874
property was sold by public auction on 6.6.1984 and A
confirmed on 30.7.1985. Consequently any sale by ‘M’,
during the subsistence of the attachment was void
insofar as the decree obtained by the appellant.
Therefore, neither the purchasers from ‘M’ nor the
respondent who is the subsequent transferee, obtained B
any title in pursuance of the sales, as the sales were void
as against the claims enforceable under the attachment.
The order of the High Court is set aside and the order of
the first appellate court confirming the dismissal of the
respondent’s suit stands restored. [Paras 18, 19, 20] [884- C
B-H; 885-A-G]
A
B
C
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
5798 of 2002.
P. Vishwanath Shetty, V. Ramasubramanian, V. D
Balachandran for the Appellant.
D
K.S. Ramamurthy, A.T.M. Sampath for the Respondents.
The Judgment of the Court was delivered by
R.V. RAVEENDRAN, J. 1. Appellant obtained a money
decree for Rs.4200/- against one Mokshammal on 28.2.1972.
He levied execution (EP No.466/1974) in respect of the said
decree, wherein the suit property (agricultural land measuring
2 acres 22 cents) and two other properties (which are not the
subject matter of present proceedings) belonging to
Mokshammal were attached on 29.12.1974.
E
F
2. The Tamil Nadu Indebted Agriculturists (Temporary
Relief) Act, 1975 (`Debt Relief Act' for short) enacted by the
G
Tamil Nadu Legislature came into force with effect from
10.1.1975. Section 4 of the said Act stayed all further
proceedings in applications for execution of decrees in which
relief was claimed against an agriculturist until the expiry of one
year from the date of commencement of the said Act. The
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[2010] 10 S.C.R.
proviso thereto enabled the court to pass such orders as it
deemed necessary for custody or preservation of the property
under attachment. As Mokshammal was an `agriculturist' as
defined under the said Act, the execution proceedings in regard
to the decree obtained by the appellant against her were
closed, by order dated 15.2.1975. The moratorium period of
one year under the Debt Relief Act was subsequently extended
from time to time till 14.7.1979.
3. After the moratorium period ended, the appellant
initiated execution proceedings afresh (EP No.276 of 1980).
As the suit property had already been attached on 29.12.1974
in the earlier execution proceedings, and that attachment
continued even during the moratorium period, the appellant did
not seek any fresh attachment. In the said execution
proceedings the attached suit property was brought to sale. At
the court auction sale held on 6.6.1984, the appellant
purchased the suit property. The auction sale in favour of
appellant was confirmed on 30.7.1985 and a sale certificate
was issued to him. According to appellant possession of the
suit property was also delivered to him through court on
10.9.1985.
4. The judgment debtor Mokshammal filed an application
under section 47 of the Code of Civil Procedure (`Code' for
short) to set aside the sale. The sale was set aside on
F 10.1.1986. However the appeal filed by the appellant against
the said order was allowed by the Subordinate Judge and by
order dated 15.3.1993 the order of the executing court dated
10.1.1986 setting aside the sale was reversed. The revision
petition filed by Mokshammal against the said order was
dismissed on 5.10.1993. Thus the attempts by Mokshammal
G
to get the sale set aside failed and the auction sale attained
finality.
H
5. In the meanwhile, the Judgment-Debtor Mokshammal
sold 75 cents out of the suit property to one Chandra on
17.2.1978 who in turn sold it to Kiliammal on 19.8.1981. The
C.S. MANI (D) BY LR v. B. CHINNASAMY NAIDU
(DECEASED) BY LRS. [R.V. RAVEENDRAN, J.]
875
remaining 1.47 acre was also sold by Mokshammal to one
Chand Basha under another sale deed dated 18.12.1980.
Chand Basha and Kiliammal sold their respective portions
measuring 1.47 acres and 75 cents to the respondent under
sale deeds dated 27.1.1982 and 6.3.1982. Respondent thus
claimed to be the owner in possession of the suit schedule
property measuring 2 acres 22 guntas. The respondent filed a
suit in the court of District Munsiff, Tiruvallur (O.S.No. 458/1985)
against the appellant seeking a declaration of his title over the
suit property and for a permanent injunction to restrain the
appellant from interfering with his possession over the same.
In the said suit, the respondent contended that on the
enactment of the Debt Relief Act, the execution against
Mokshammal was closed on 15.2.1975 and as a result the
attachment dated 29.12.1974 over the suit property came to
an end; and therefore when portions of suit property were sold
by Mokshammal to Chandra and Chand Basha or when the suit
property was subsequently sold to him on 27.1.1982 and
6.3.1982, it was not subject to any attachment and therefore
he became the absolute owner thereof. He further contended
that the court sale in execution on 6.6.1984 in favour of the
appellant, was on the erroneous premise that the suit property
was under attachment; and that as the attachment had ceased
on 15.2.1975, the auction sale was null and void. He also
asserted that he was in possession of the suit property and the
claim of the appellant that possession was delivered to him on
10.9.1985, was false and incorrect. The suit was contested by
the appellant. The trial court dismissed the suit by judgment and
decree dated 7.11.1997, holding that the sale deeds in favour
of respondent were not valid and the appellant was in
possession of the suit property. The respondent filed an appeal
challenging the judgment and decree of the trial court, and the
first appellate court by judgment dated 5.8.1998 dismissed the
appeal. The trial court and the first appellate court concurrently
found that the attachment effected on 29.12.1974 was not
raised/withdrawn/determined and it had continued till the sale
of the property in the court auction on 6.6.1984 and therefore
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A the sale in favour of appellant was valid and the sales effected
by Mokshammal during the subsistence of the attachment were
invalid.
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6. Feeling aggrieved, the respondent filed a second
appeal. The High Court allowed the second appeal and set
aside the judgment and decree of the first appellate court, and
decreed the suit for declaration of title and injunction filed by
the respondent. The High Court held that when the Debt Relief
Act came into force, the executing court had closed the
execution proceedings on 15.2.1975 with an observation that
the attachment to continue for a period of six months, and at
the end of six months the attachment came to an end and was
not revived or renewed and consequently when Mokshammal
sold the suit property on 17.2.1978 and 18.12.1980 in two
portions to Chandra and Chand Basha, the suit property was
not subject to any attachment and consequently, the respondent
who had purchased the suit property from Chandra's successor
Killiammal and Chand Basha, was the owner of the suit
property. It held that the court sale dated 6.6.1984 and
consequent sale certificate did not convey any title to the
appellant, as there was no attachment as on the date of sale
and Mokshammal did not have any interest in the suit property
on the date of auction sale. The said judgment is challenged
in this appeal.
Legal Position regarding determination of attachment
7. One of the modes of enforcing execution of a money
decree is by attachment and sale of the property of the
judgment-debtor. (Vide Sec.51(b) of the Code). Attachment of
an immovable property is made by an order prohibiting the
G judgment-debtor from transferring or charging the property in
any way, and all persons from taking any benefit from such
transfer or charge (Vide Order 21 Rule 54 of the Code). Section
64 of the Code of Civil Procedure provides that private
alienation of property after attachment is void and sub-section
H (1) thereof is extracted below :
C.S. MANI (D) BY LR v. B. CHINNASAMY NAIDU
(DECEASED) BY LRS. [R.V. RAVEENDRAN, J.]
877
"64. Private alienation of property after attachment to be
void.--(1) Where an attachment has been made, any
private transfer or delivery of the property attached or of
any interest therein and any payment to the judgmentdebtor of any debt, dividend or other money contrary to
such attachment, shall be void as against all claims
enforceable under the attachment."
8. An attachment of an immovable property effected in
execution of a decree, will continue until the said property is
sold and the sale is confirmed, unless it is determined or
removed on account of any of the following reasons:
(i) By deemed withdrawal under Rule 55 Order 21 of the
Code, that is, where the attachment is deemed to be
withdrawn on account of (a) the amount decreed with all
costs, charges and expenses resulting from the
attachment being paid into court; or (b) satisfaction of the
decree being otherwise made through the court or is
certified to the court; or (c) the decree being set aside or
reversed.
(ii) By determination under Rule 57 Order 21 of the
Code, that is, after any property has been attached in
execution of a decree, the court passes an order
dismissing the application for execution of the decree, but
omits togive a direction that the attachment shall continue.
(When an execution application is dismissed, for
whatsoever reason, the court is required to direct whether
the attachment shall continue or cease and shall also
indicate the period up to which the attachment shall
continue or the date on which such attachment shall cease).
(iii) By release of the property from attachment under
Rule 58 Order 21 of the Code, that is when any claim is
preferred to the property attached in execution, or any
objection is made to the attachment, on the ground that the
property is not liable to such attachment and the court, on
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adjudication of the claim or the objections, releases the
property from attachment.
(iv) By operation of law, that is, on account of any statute
declaring the attachment in execution shall cease to
operate, or by the decree (in respect of which the property
is attached) being nullified, or by the execution being
barred by the law of limitation.
(v) By consent of parties, that is, where the decree holder
and the judgment debtor agree that the attachment be
withdrawn or raised.
Questions for consideration
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9. On the contentions raised, two questions arise for our
consideration in this appeal :
(i) Whether the attachment of the suit property on
29.12.1974 continued after the closure of the execution petition
on 15.2.1975, till the auction sale on 6.6.1984 and confirmation
of sale on 30.7.1985; and consequently the sales by
Mokshammal on 17.2.1978 and 18.12.1980 as also the sales
by her transferees to respondent were invalid.
(ii) Whether the attachment of the suit property ceased on
15.8.1975, on the expiry of six months from the date of closure
of the execution proceedings, in view of the intervention of the
Debt Relief Act and the orderof closure dated 15.2.1975; and
consequently the sales by Mokshammal on 17.2.1978 and
18.12.1980 were valid, and the auction sale in favour of the
appellant was invalid ?
Re : Question (i)
10. There is no dispute that the suit property was attached
on 29.12.1974 in the execution proceedings initiated by the
appellant against Mokshammal, in regard to the money decree
obtained by him. Therefore any private transfer or delivery of
C.S. MANI (D) BY LR v. B. CHINNASAMY NAIDU
(DECEASED) BY LRS. [R.V. RAVEENDRAN, J.]
879
the attached property, by Mokshammal during the period when
the attachment was in force, was void as against all claims
enforceable under the attachment by the appellant. As noticed
above, an attachment, once made in execution of a decree, will
continue till the completion of the sale, unless determined by
any of the methods mentioned in para (8) above. It is not the
case of the respondent that there was determination of the
attachment on account of any of the grounds specified in Rule
55 or Rule 58 of Order 21 of the Code. There was also no
agreement to raise the attachment nor any application for
withdrawing the attachment. Therefore what remains to be
considered whether there was determination of attachment
under any of the circumstances mentioned in paras (ii) and (iv)
of para 8 above.
11. It is clear from Rule 57 of Order 21 of the Code that
where the court `dismisses' the application for execution of the
decree, the attachment effected in execution, shall cease
unless the court indicates that the attachment shall continue. But
where the execution petition is adjourned `sine die' or closed
on account of any moratorium or stay of the execution under a
statute, or by an order of stay by any court, there is no
"dismissal" of the execution application. Similarly where the
execution application is closed without any specific cause,
apparently for purposes of statistical disposal, there is no
"dismissal" of the execution application. An execution
application is `dismissed' when (i) the execution is dismissed
as a consequence of the decree being found to be null and void
or inexecutable (as contrasted from any temporary eclipse of
the decree); or (ii) the execution is dismissed on the ground of
any default on the part of the decree-holder.
12. The execution application of the appellant was closed
on 15.2.1975 in view of Section 4 of the Debt Relief Act staying
executions against agriculturists. The stay of further proceedings
in execution under section 4 of the Debt Relief Act was only
for a specified limited period. The proviso to section 4 clearly
implied that any attachment made in such stayed execution
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proceedings shall continue to be in effect, by providing that the
court will have to pass if necessary the orders for custody or
preservation of the attached property during the pendency of
stay under the Debt Relief Act. Therefore the enactment of the
Debt Relief Act did not determine the attachment. What was
B stayed or kept in abeyance during the period when the statutory
stay of execution operated, was not the attachment, but the
further proceedings in pursuance of the attachment, that is, sale
of the attached property. On the expiry of the moratorium period
under the Debt Relief Act on 17.10.1979, the decree holder
C became entitled to continue the execution by proceeding with
the sale. There is thus no question of determination or
withdrawal of attachment, nor any question of `eclipse of
attachment' during the period when the statutory stay under the
Debt Relief Act, nor any `revival' of attachment thereafter.
Attachments in execution, already effected, continued and were
D
in effect, during the entire period of stay of execution by the Debt
Relief Act. The alienations by Mokshamal under sale deeds
dated 17.2.1978 and 18.2.1980 were therefore void as against
the claim enforceable under the attachment obtained by
appellant, having regard to Sec. 64 of the Code. As the
E attachment obtained by the appellant continued, the sale in his
favour was valid and the sales by Mokshammalˇ were invalid.
A
Re : question (ii)
F
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13. The contention of the respondent is that even if the
attachment was not determined on account of the enactment
of the Debt Relief Act, the executing court which passed the
order of attachment on 29.12.1974 had subsequently made an
order on 15.2.1975 closing the execution with an observation
that the "attachment to continue for six months" thereby making
G it clear that the attachment would came to an end on 15.8.1975.
It was submitted that there was no order extending the
attachment after the expiry of the said six month period. It was
submitted by the respondent that even assuming that the said
order dated 15.2.1975 was erroneous, it was binding and valid
H as it was not got modified or set aside and had attained finality;
F
C.S. MANI (D) BY LR v. B. CHINNASAMY NAIDU
(DECEASED) BY LRS. [R.V. RAVEENDRAN, J.]
881
882
and consequently when the sale was effected by Mokashammal
on 17.2.1978 and 18.12.1980 in respect of portions of the suit
property, there was no subsisting attachment. On the other
hand, the appellant contends that on 15.2.1975, the executing
court, while closing the execution in view of the stay of
execution proceedings by the Debt Relief Act, had made it
clear that the attachment will continue. According to them the
order made by the executing court while closing the execution
proceedings on 15.2.1975 was "Defendant in an agriculturist
- EP is closed - attachment to continue".
A
14. If the order of the executing court while closing the
execution, was `attachment to continue', the attachment would
have continued in spite of the closing of the execution
proceedings. Even if the executing court had closed the
execution, in view of the statutory stay, without any specific
order continuing the attachment, the attachment would not have
ceased as there was no `dismissal' of execution under Order
21 Rule 57 of the Code. But if the order dated 15.2.1975 had
stated `attachment to continue for six months', whether right or
wrong, the attachment would have come to an end on the
expiry of six months from 15.2.1975, unless it was continued
by any subsequent order, or had been modified or set aside
by a higher court. What then was the order that was passed
on 15.2.1975?
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[2010] 10 S.C.R.
The E.P. No.466/74 was also closed on 15.2.75 with the
result the attachment came to an end."
Nearly a decade later, the respondent filed by way of an
additional document in the said suit, the suit register extract
relating to order dated 15.2.1975 which read as follows :
Amended as per Office Note dated 19.7.1995:
"Defendant is an agriculturist - E.P. is closed - attachment
to continue for 6 months".
D
E
15. It is significant that the respondent in his plaint (in OS
No. 458/1985) never stated that that order dated 15.2.1975
closing the execution proceedings, continued the attachment
for only six months. On the other hand his specific case was
that the attachment came to an end on account of the execution
being closed on 15.2.1975 by reason of the Debt Relief Act.
We extract below the relevant averments from the plaint :
G
"While the E.P. Proceedings were in progress
Government passed Debt Relief Act for the relief of
agriculturists and by virtue of which all further proceedings
against agriculturists were either stayed or dismissed.
H
F
C The certified copy of the order dated 15.2.1975 obtained by
the appellant (prior to 19.7.1975 when the amendment was
made) read: "Defendant is an agriculturist - E.P. closed attachment to continue." The said order dated 15.2.1975 was
corrected twenty years later on 19.7.1995 by adding the words
D "for six months" at the end, thereby converting the attachment
which was to continue without any specific time limit, as one to
end on the expiry of six months. The said correction was by way
of an office note and without notice to the appellant. The
appellant therefore filed a civil revision petition before the High
E Court challenging the amendment to the order dated 15.2.1975
made on 19.7.1995 by way of an office note, converting the
words "attachment to continue" to "attachment to continue for
6 months".
16. The High Court allowed the said revision petition by
order dated 22.12.1995. It found that the correction had been
made after 20 years on 19.7.1995, allegedly after obtaining a
clarification from the Presiding Officer; and that it was not
known how and on what basis such a clarification could be
obtained after 20 years and on what authority the person who
G was the Presiding Officer on 15.2.1975 could issue any
clarification after the order, and how the order could be
amended after 20 years, that too without giving an opportunity
to the appellant to oppose the same. The court therefore
allowed the revision petition with the following observations and
H directions :
F
C.S. MANI (D) BY LR v. B. CHINNASAMY NAIDU
(DECEASED) BY LRS. [R.V. RAVEENDRAN, J.]
883
"3. It is absolutely necessary that whenever a clerical
mistake is to be corrected, such corrections cannot be
made behind the back of the parties and the parties must
be given an opportunity, explaining the clerical mistake and
the circumstances under which the corrections are to be
made. Hence the amendment made pursuant to the office
note dated 19.7.1995 with regard to the suit register in
O.S.No.29/71 cannot be sustained. Accordingly, the same
is set aside.
4. The Civil Revision Petition is allowed and the matter is
remitted to the Lower Court for fresh disposal according
to law. The Lower Court is directed to give notice to the
both parties in respect of the clarification required and the
amendment to be made and thereafter pass orders
regarding the amendment of the suit register, if required."
17. Strangely on such remand by the High Court, the
executing court did not hold any enquiry, nor gave any hearing
to parties as directed by the High Court. On the other hand a
rather strange communication dated 18.9.1996 was addressed
by the learned District Munsif to the learned counsel for the
appellant and respondent herein :
"This is to inform you that regarding the order in
E.P.No.466 of 1974 in O.S.No.29 of 1971, the doubt was
cleared for the last order in E.P. by the then Presiding
officer by his letter dated 29.10.1985 i.e., "Defendant is
an Agriculturist. E.P. is closed. Attachment to continue for
6 months". The same was omitted to be carried out in the
Suit Register by mistake on 29.10.1985 itself. Hence office
note put up on 19.07.1995 and as per order of District
Munsif the same was carried out in the suit register, after
giving notice to the petitioner's advocate Thiru
S.Chandramouli in this Court's Memo in D.No. 393 dated
19.07.1995.
Now as per High Court's direction in C.R.P.No.2864 of
1995 dated 22.12.1995 this fresh notice is given to both
884
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[2010] 10 S.C.R.
the Advocates for making correction in the suit register as
well as in the certified copies if any obtained by the
Advocates. Hence both side advocates are directed to
produce the certified copies in E.P.No.466 of 1974 in
O.S.No.29 of 1971 (Suit Register Extract) on the file of this
Court for making correction with in a week's time."
18. The High Court, while allowing the second appeal of
the respondent by the impugned judgment, has read the said
notice as an "order" reiterating the amendment made on
19.7.1995. The High Court has therefore proceeded on the
C basis that by order dated 15.2.1975, the executing court had
closed the execution proceedings in view of the enactment of
the Debt Relief Act and continued the attachment only for six
months and thereafter there was no attachment and therefore
the sales by Mokshammal on 17.2.1978 and 18.12.1980 were
D valid and the court auction sale in favour of the appellant was
invalid. The High Court clearly erred. Firstly when the Debt
Relief Act had clearly indicated that the attachment will continue
during the period when the execution proceedings were stayed,
it is ununderstandable how the executing court could make an
E order that the attachment will continue only for six months.
Secondly when the order dated 15.2.1975 stated "attachment
to continue", it is ununderstandable how the said order could
have been amended after 20 years without notice to the
plaintiff-decree holder on the basis of some private clarification
F letter dated 29.10.1985 allegedly written by the District Munsif
stating that the order made on 15.2.1975 was not "attachment
to continue" but "attachment to continue for six months". Thirdly
when said amendment order dated 19.7.1995 amending the
order dated 15.2.1975 was set aside by the High Court by
G order dated 22.12.1995 with a direction for fresh disposal in
accordance with law after notice to the parties, it is
ununderstandable how the learned District Munsiff, instead of
complying with the order of the High Court, could have issued
a notice dated 18.9.1996 to both counsel stating that the said
correction adding the words "for six months" was required to
H
C.S. MANI (D) BY LR v. B. CHINNASAMY NAIDU
(DECEASED) BY LRS. [R.V. RAVEENDRAN, J.]
be made in the certified copies, if any obtained by the
Advocates, and that both side Advocates should produce the
certified copies in EP No. 466 of 1974 for making the
correction. The notice dated 18.9.1996, by no stretch of
imagination could be construed as an order after haring as
directed by the High Court by its order dated 22.12.1995. The
notice dated 18.9.1996 was apparently issued under an
erroneous impression that the High Court had accepted the
correction, but had directed making of the correction in the
certified copies after notice to the parties. The amendment
made pursuant to the office note dated 19.7.1995 having been
set aside by order dated 22.12.1995, and no further order
having been made thereafter by the executing court, the
unauthorized addition of the words "for six months" in the order
dated 15.2.1975 have to be ignored and excluded.
A
A
B
B
19. Therefore the attachment dated 29.12.1974 continued
till the property was sold by public auction on 6.6.1984 and
confirmed on 30.7.1985. Consequently any sale by the
judgment debtor Mokshammal, during the subsistence of the
attachment was void insofar as the decree obtained by the
appellant. Therefore it has to be held that neither the purchasers
from Mokshammal nor the respondent who is the subsequent
transferee, obtained any title in pursuance of the sales, as the
sales were void as against the claims enforceable under the
attachment.
20. In view of the above this appeal is allowed and the
order of the High Court is set aside and the order of the first
appellate court confirming the dismissal of the respondent's suit
stands restored and confirmed.
Appeal allowed.
SANTOKH SINGH & ANR.
v.
STATE OF PUNJAB
(Criminal Appeal No. 2079 of 2008)
SEPTEMBER 01, 2010
[B. SUDERSHAN REDDY AND SURINDER SINGH
NIJJAR, JJ.]
C
D
conclusion
D.G
[2010] 10 S.C.R. 886
885
E
F
G
Penal Code, 1860 – s. 302/34 – Murder – Rivalry
C between parties resulting in death of victim – Conviction and
sentence of accused u/s. 302/34 on basis of circumstantial
evidence by trial court – High Court upholding the order of
conviction and sentence of two of the accused and acquitting
others – On appeal, held: All the circumstances taken together
D form a continuous and unbroken chain that deceased was
shot dead by two of the accused – Clear evidence that
accused went to the house of deceased to bring him out of
the house for the purpose of committing his murder – Serious
rivalry between the two Unions – Cleaning of pistol by
E accused to remove finger-prints strongly pointing towards the
guilt of accused – There was no blackening or tattooing of the
skin surrounding the wound – Therefore, trial court rightly held
that possiblility of suicide was roled out—Thus, orders of trial
court as also High Court do not call for any interference –
F Evidence – Circumstantial evidence .
According to the prosecution case, there was a
Union rivalry between the parties. On the fateful day,
accused persons went to the house of the deceased and
took him to the hotel in presence of the complainant. He
G was forced to drink liquor and while he was under the
influence of liquor, he was murdered. The trial court
convicted the accused for offences punishable under
Section 302 read with Section 34 IPC and imposed
sentence of imprisonment for life with a fine of Rs. 1,000/
H
886
SANTOKH SINGH & ANR. v. STATE OF PUNJAB
887
-. The High Court upheld the order of conviction and
sentence of appellant no. 1 and appellant no. 2. However,
the other two co-accused were acquitted. Therefore, the
appellants filed the instant appeal.
Dismissing the appeal, the Court
HELD: 1.1 The conclusions of the trial court and the
High Court that the circumstantial evidence adduced by
the prosecution formed a complete chain which led to the
conclusion, consistent only with the guilt of the accused
and inconsistent with their innocence, are not manifestly
erroneous. There is clear evidence that the appellants had
gone to the house of the deceased to bring him out of
the house for the purpose of committing his murder. The
reason given, of an effort to sort out the Union disputes,
was merely a ruse to bring the deceased out of his house.
There was serious rivalry between the two Unions. Only
two days prior to the shooting, the deceased left the
Union of the appellants and became the President of
INTUC Union. The deceased would not have taken the
pistol with him had he not apprehended any danger from
the accused persons. PW 5-wife of deceased clearly
stated that he had specifically asked to take the pistol
with him. [Para 14] [901-G-H; 902-A-C]
1.2 The trial court noticed the absence of fingerprints
on the pistol and concluded that the fatal shot had not
been fired by the deceased. His fingerprints were bound
to be present on the pistol in case the shot had been fired
by him. The fingerprint expert in his report clearly stated
that the pistol had been wiped clean. The trial court rightly
concluded that the fingerprints were in all probability
wiped away by the assailant to remove the evidence of
his fingerprints. There is no reason for any other person
to remove the finger prints. The far fetched suggestion
that the fingerprints were removed to rule out the
888
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[2010] 10 S.C.R.
possibility of the deceased having shot himself cannot
be accepted. There is no evidence on the record to show
that any other person had handled the pistol, in the
interval between the shooting and the arrival of the police.
There is no reason as to why the police would wipe away
the incriminating finger prints. [Para 11] [899-B-E]
1.3 The trial court noticed that the post mortem report
nowhere mentioned that there was any blackening or
tattooing of any area surrounding the fatal wound. The
trial court, therefore, concluded that the possibility of
C
suicide stands completely ruled out. The only inference
is that it was a case of homicide. The shot was fired by
someone, from amongst the accused appellants. It also
came in evidence that in fact two shots were fired. The
empty shell of the first one which missed was recovered
D some distance away from the body of the deceased.
Taking stock of the entire evidence, the trial court
concluded that the circumstantial evidence adduced by
the prosecution formed a complete chain which led to the
conclusion, consistent only with the guilt of the accused
E and inconsistent with their innocence. The conclusions
arrived at by the trial court were confirmed by the Division
Bench of the High Court. [Para 12 & 13] [899-E-H; 892-A]
1.4 There was no reason why the police as well as
the
prosecution would go out of the way to falsely
F
implicate or prosecute the appellants. Both the trial court
and the High Court upon appreciation of the evidence
concluded that there was evidence to show that the
accused and the deceased were carrying liquor with
them. The glasses and the chicken curry were served to
G
them at the hotel. The High Court also concluded that the
presence of the carton of whiskey would clearly show
that the deceased had consumed alcohol. Thereafter, the
deceased was shot in the head with his own pistol.
H
SANTOKH SINGH & ANR. v. STATE OF PUNJAB
889
Whether the pistol was snatched away by one of the
accused persons or was handed over by the deceased,
is neither here nor there. The deceased was shot with his
own pistol. There was no blackening or tattooing of the
skin surrounding the wound. [Para 16] [902-E-H]
1.5 The patient’s admission and treatment register
produced seems to be the most unreliable document. It
was maintained in a slip shod manner. There were no
systematically maintained entries, either about the
particulars of the patient, the disease or the treatment.
DW-1 admitted that there was some overlapping in the
entries. The document does not inspire any confidence.
It cannot be said to be a reliable document. There was
no evidence indicating the particular expertise of DW-1.
According to the evidence of DW 1, there was only
preliminary diagnosis of the medical condition of the
deceased. There was no proof of any expert clinical
examination of the deceased. Thus, it cannot be said that
the deceased was suffering from chronic schizophrenia.
The courts below rightly rejected the plea that the
deceased was a psychiatric patient and was stated to be
suffering from schizophrenia. [Para 17] [903-A-D]
1.6 The deceased and the accused were working in
the same organization. They were office bearers of the
same Union. Two days before the incident, the deceased
left the Union of the appellants and became the President
of the rival Union, therefore, they resented the action of
the deceased. They formed a common intention to
eliminate the deceased. They went to the house of the
deceased and invited him to accompany them to resolve
the Union disputes. They took him to the hotel where they
consumed liquor and were also served food by the hotel
staff. At some point of time the pistol of the deceased was
taken by one of the appellants. It is wholly irrelevant
whether it was voluntarily given by the deceased or taken
890
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[2010] 10 S.C.R.
A by the assailant. Thereafter, one of the accused persons
shot the deceased in the head with his own pistol. They
then wiped the fingerprints on the pistol, threw the pistol
down next to the body of the deceased and tried to
escape. This is an indication towards the guilt rather than
B the innocence of the appellants. Two of them were
captured just outside the hotel, the other two managed
to escape. The injury on the deceased did not indicate
that he had shot himself. The injuries showed that the
shot was not fired at point blank range. There was no
C tattooing or blackening of the skin surrounding the entire
wound. The consumption of liquor could not be doubted
in view of the evidence given by the waiter, who served
the food. The waiter clearly stated that the visitors had
brought the liquor with them. They were only given the
glasses and the buckets of ice. They ordered for chicken
D
curry, which was duly given to them. The waiter was
conveniently removed from the dining hall to ensure that
he did not become an eye witness to the murder. They
told him to go and get two more chapattis. He, therefore,
went into the kitchen of the hotel. While, he was coming
E out of the kitchen, he heard the sound of gunfire.
Although, the waiter was declared hostile, his evidence
is consistent with the prosecution version. Even
otherwise, the carton of whiskey was quite visible in one
of the photographs. All these circumstances taken
F together clearly form such a continuous and unbroken
chain, leaving no manner of doubt that the deceased was
shot dead by one of the appellants. The cleaning of the
pistol to remove the finger-prints is a circumstance which
is a strong pointer to the guilt of the appellants. The
G judgment of the trial court as also of the High Court do
not call for any interference. [Paras 18, 19 and 20] [903E-H; 904-A-G]
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
H No. 2079 of 2008.
SANTOKH SINGH & ANR. v. STATE OF PUNJAB
891
From the Judgment & Order dated 12.03.2007 of the High
Court of Punjab & Haryana at Chandigarh in Criminal Appeal
No. 885 DB of 2003.
K.T.S. Tulsi, Dil Jit Singh, Ajay Veer Singh, Irshad Ahmed
for the Appellants.
892
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A
B
B
Kuldip Singh for the Respondent.
The Judgment of the Court was delivered by
SURINDER SINGH NIJJAR, J. 1. The two appellants in
C
this Criminal Appeal have challenged the judgment of the
Punjab and Haryana High Court in Criminal Appeal No. 885DB of 2003, whereby the High Court upheld the conviction of
the appellants for the offence under Section 302 read with
Section 34 IPC sentencing them each to undergo imprisonment
for life with a fine of Rs. 1,000/- with a direction to further D
undergo RI for six months in case of default of payment fine.
2. The prosecution case is that Inspector Harvinder Singh,
Station House Officer, Police Station, Civil Lines, Amritsar,
alongwith other officials including Balwinder Singh, ASI, Tarsem E
Singh, Constable, Bikram Singh, Constable, happened to be
present at Chowk Ciivil Lines, Amritsar, in connection with
patrolling during the night of 14.7.2002. At about 10.45 p.m.,
Rajiv Kumar son of Prem Nath Sharma resident of House No.
75/5, Gulati Road, Amritsar Cantt, met them. He gave them a F
written application dated 14.7.2002 (Ex. PE) giving the details
about the death of Sanjay Kumar @ Shammi. On the basis of
the complaint, FIR (Ex. PD) was registered at the Police
Station, Civil Lines, Amritsar at 11:30 p.m. The deceased,
cousin of the complainant, was working in Air Force MES as G
FGM and was residing in MES Quarter No. 23/4. He was
Secretary of an Employees’ Union. He, however, left the
aforesaid Employees’ Union. Two days later, he became the
President of INTUC Union. Accused (1) Santokh Singh,
President of Employees’ Union, (2) Sawarn Kumar (President
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[2010] 10 S.C.R.
of Employees’ Union), GE Amritsar (3) Jagsher Singh Bhola,
General Secretary, (4) Gurdev Singh, FMGHS II came to the
quarter of the deceased in the presence of the complainant.
They said that they wanted to discuss something about the
disputes of the Union. They, therefore, took Sanjay alongwith
them. Thereafter, Arjinder Pal Singh @ Prince, owner of a Hotel
came to their house and told them that Sanjay has been shot
dead. In the complaint, it is stated that the complainant had full
confidence that all the four persons who had called Shammi
from his house had made Shammi drink liquor and while he
was under the influence of liquor, they had shot him dead after
snatching his pistol. Endorsement Ex.P/1, was made on this
statement by the Inspector and sent to the police station through
Constable Bikram Singh. FIR (Ex. PE/3) was recorded on the
basis thereof by Balbir Singh, SI. His signature on the same
was identified by Inspector Harvinder Singh when he appeared
as PW-12 in the case.
3. The place of the incident, Hotel Genesis in the
Cantonment area of Amritsar, was then visited by the Inspector
alongwith other officials. The complainant Rajiv Kumar was also
taken alongwith the police party. Santokh Singh and Sawarn
Kumar were arrested from the spot. Licensed pistol of Sanjay
Kumar was found lying near the dead body. One empty, one
missed cartridge and three live cartridges were also recovered
therefrom. Prithipal Singh, Sub Inspector (Finger Prints Expert)
was called at that place and the pistol was got examined from
him. It was opined by him that no decipherable finger print
impressions were found. Santokh Singh and Sawarn Kumar
(hereinafter referred to as “the appellants”) were got medically
examined and it was found that they had not consumed any
drug or alcohol. The post mortem on the dead body of Sanjay
Kumar was duly performed and the dead body was handed
over to his relatives. The other two accused Gurdev Singh and
Jagsher Singh @ Bhola had, thereafter, surrendered in the
Court. They were formally arrested in this case on 25.7.2002.
SANTOKH SINGH & ANR. v. STATE OF PUNJAB
[SURINDER SINGH NIJJAR, J.]
893
894
During the investigation, no witness came forward to give an A
eye witness account as to how the weapon was snatched from
Sanjay and how he was shot with the same weapon. The
investigation, however, concluded that the four accused had
called Sanjay Kumar from his house. It appears that extra
judicial confession was made by Jagsher Singh @ Bhola and B
Gurdev Singh before one Vipin Kumar son of Mulakh Raj,
resident of Ram Tirath Road, Amritsar to the effect that they had
killed Sanjay Kumar. It was also stated that on 13.7.2002 in the
presence of Prince Masih, son of Buta Masih, all the four
accused persons, had condemned Sanjay Kumar for leaving C
the Union and joining INTUC. They had also said that they will
have to do something in that connection. The report of the
Forensic Science Laboratory indicated that the pistol recovered
from the site of incident was found to be in working condition.
It also indicated that shots had been fired from the very same
D
pistol. They were duly put on trial for the offence under Section
302/34 IPC and Section 25 of the Arms Act. At the trial, it was
stated by Dr. Gurmanjit Rai (PW-1) that he had conducted the
post mortem examination on the dead body of Sanjay Kumar
@ Shammi on 15.7.2002 at 11.50 a.m. He had proved the post
mortem report (Ex. PA). The report mentions that the following E
injuries were noticed on the deceased:“1.
2.
Lacerated wound 1.5 x 1 cm with inverted
margins was present on right side of head,
4 cms. lateral to out end of eyebrow.
Abrasion color was present at the lower
margin of wound. Clotted blood was present.
F
B
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[2010] 10 S.C.R.
injuries no. 1 and 2, which was sufficient to cause death in the
ordinary course of nature. The time that had elapsed between
the injuries and death was opined to be few minutes and
between death and post mortem was 24 hours.
4. A number of witnesses were examined by the
prosecution in support of its case. Upon closure of the
prosecution evidence, the statement of the appellants were
recorded under Section 313 Cr.P.C. All the allegations were
denied by them. Jagsher Singh @ Bhola and Gurdev Singh
stated that they were innocent and had been falsely implicated.
Appellant No. 1, Santokh Singh stated thus:“The allegations against us are totally false. Deceased was
of aggressive nature and also living under depression. He
used to have unpredictable swings of behaviour. He was
drug addict and was facing criminal cases. He remained
in hospital for treatment also. The allegations of my
alongwith other going to his house and to bring him are
incorrect. He met us in restaurant. All of a sudden, he fired
on his head may be to show false valour. It all is so sudden
and sad, which feelings in him culminated in this act are
difficult to tell. But he was depressed and aggressive and
possible drug influence. Police on site inspection also
agreed with it, but scenario of place of occurrence was
changed. We got totally perplexed. I am innocent.”
D
E
F
Appellant No. 2 gives the same version as appellant no.
1.
Lacerated wound of 1.8 x 0.8 cm was
present on left side of head in the temporal
G
region, 5 cms above pinna of ear. Margins
of wound were found everted Clotted blood
was present.”
The cause of death, in the opinion of the doctor, was
laceration of brain, vital organ, as a result of communicating
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5. Upon examination of the entire evidence, the trial court
convicted all the four accused under Section 302 read with
Section 34 IPC and they were sent to undergo imprisonment
for life and to pay a fine of Rs. 1,000/- each under Section 302
read with Section 34 IPC. In default of payment of fine, the
defaulter accused would further undergo RI for a period of 6
months. The aforesaid judgment of the trial court was taken in
appeal by the four convicts.
SANTOKH SINGH & ANR. v. STATE OF PUNJAB
[SURINDER SINGH NIJJAR, J.]
895
6. The High Court upon re-examination of the entire
evidence has confirmed the findings recorded in the impugned
judgment qua appellant No. 1, Santokh Singh and appellant No.
2 Sawarn Kumar. However the co-accused Jagsher Singh @
Bhola and Gurdev Singh were acquitted of the charge under
302 read with Section 34 IPC. It is in these circumstances, that
the two appellants have challenged the aforesaid judgment in
this appeal.
896
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7. We have heard the learned counsel for the parties. Mr.
K.T.S. Tulsi, learned senior counsel for the appellants submitted
C
that this is undoubtedly a case of suicide which has been
deliberately twisted by the prosecution into a case of murder.
Learned counsel submitted that deceased was suffering from
chronic Schizophrenia. He had been regularly receiving
treatment for mental illness at the Bhatia Neuro Psychiatric
Hospital, Amritsar. Deceased was also a drug addict. Learned D
counsel has placed strong reliance on the statement made by
Dr. J.P.S. Bhatia (DW-1). It is submitted by the learned senior
counsel that due to his illness, behaviour of the deceased was
wholly erratic and unpredictable. It is not possible to know the
reason as to why he may have shot himself. According to the E
learned counsel, the medical evidence would tend to suggest
that he had suicidal tendencies. Mr. Tulsi further submitted that
in this case, the prosecution has gone out of the way to
fabricate the case against the appellants. The appellants had
no motive whatsoever to kill the deceased. Even if there was F
slight disagreement with regard to the Union activities, the same
would not provide a motive strong enough to commit the murder
of the deceased. He submitted that the appellants had very
cordial relations with the deceased. They had, in fact gone to
his house to resolve any outstanding issues. He has pointed G
to a number of circumstances which would show that the police
has acted in a partisan manner. According to Mr. Tulsi, the
entire sequence of events given by the prosecution is
unbelievable. First and foremost, there is no eye-witness. The
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FIR has been ante timed. It was in fact not recorded at 11.35
as stated in the record. The inquest was conducted on
15.7.2002 that would mean that it was conducted sometime
after midnight of the night of 14/15.7.2002. In the inquest report,
the names of the accused appellants are not mentioned. It is
submitted that the arrival of the police is ante timed. This is
evident from the general diary which records that the police left
for the scene of the crime at 11.30 p.m. The position of the body
has been shifted. The empty cartridge of the missed shot was
not recovered till the following day. This had been planted to
justify the plea that two shots were fired. There is no evidence
that the appellants had removed the finger prints. Therefore, the
prosecution is suppressing the genesis of the incident.
According to the learned senior counsel, the evidence of the
witnesses is wholly unreliable. The witness tend to change the
stand to suit the circumstances. Counsel further submitted that
this being a case of circumstantial evidence, the prosecution
has to prove that the circumstances on the record would be
inconsistent with the innocence of the appellants. Learned
counsel submitted that there has been definite tampering with
the evidence. Even according to the prosecution witnesses, the
deceased was first seen sitting on a chair with his head on the
table. The pistol was said to be lying at the feet of the
deceased. Thereafter, it is sought to be projected that the
deceased was lying on the floor. According to the learned
senior counsel, the cumulative effect of the inherent
weaknesses in the investigation and tampering of evidence
would lead to the clear conclusion that the appellants had been
falsely implicated. Learned senior counsel further submitted
that the prosecution cannot be permitted to take advantage of
the fact that the pistol recovered did not have any fingerprints
on it. It cannot lead to the conclusion that the appellants had
deliberately removed the fingerprints. Learned senior counsel
also submitted that merely because more than one shot was
fired would not lead to the conclusion that the firing was not
done by the deceased himself. Learned senior counsel also
submitted that the recovery of the empty shells on the following
SANTOKH SINGH & ANR. v. STATE OF PUNJAB
[SURINDER SINGH NIJJAR, J.]
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day is itself suspect. The possibility of the same having been
planted by the investigating agency cannot be ruled out.
8. On the other hand, Mr. Kuldip Singh, appearing for the
State of Punjab submitted that the prosecution has proved the
case beyond reasonable doubt. Learned counsel submitted
that there is no break in the sequence of events. It has been
proved on the record that there was Union rivalry. The appellants
were resentful for the fact that the deceased had joined INTUC
after leaving their Union. They had gone to his house and
brought him to the hotel. They had got the deceased drunk.
Thereafter, they committed the murder. According to the learned
counsel, if the deceased had shot himself, there was no
question of two shots being fired. Learned counsel further
pointed out that the evidence of the illness of the deceased is
non-existent. The record produced by Dr. J.P.S. Bhatia (DW1) is a clear fabrication. It has been prepared just to help the
appellants. Undoubtedly, the deceased was taking drugs for
which he had received some treatment but he was not a
psychiatric case as projected by the appellant.
9. We have considered the submissions made by the
learned counsel for the parties. The trial court examined the
entire evidence threadbare. From the evidence of the
witnesses, it has been established that Shammi had been shot
dead with his own licensed pistol. The incident had taken place
at Genesis Hotel. Accused persons including the appellants
herein were present in the dining hall on the same table as
Shammi. The divergence between the version given by the
prosecution and the version of the appellants was duly noticed
by the trial court. According to the prosecution, the shots were
fired by someone amongst the accused persons in furtherance
of common intention of all of them to murder Shammi. The
defence version on the other hand is that Shammi being a
person of unstable temperament due to his mental illness had
committed suicide. The trial court, in order to, rule out the
possibility that the appellants have not been falsely implicated
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meticulously noticed the facts which were proved by the
prosecution.
10. On a careful appreciation of the evidence, it was found
by the trial court, and confirmed by the High Court that Shammi
was an active participant in the Union activities. He had been
the Secretary of the Employees’ Union. Rajiv Kumar reiterated
the facts about the Union activities of the deceased, Shammi,
in his evidence. He stated that he was present in the house of
the deceased when the accused reached there at about 8.45
p.m. He was still at the house when Prince, the hotel owner,
came and told them that Shammi had been shot dead, in his
hotel. Both Rajiv Kumar and the widow of the deceased Indira
Rani (PW-5) had stated that Shammi had taken the pistol
alongwith him. He was in the habit of keeping the pistol in the
dub of his pants. She also stated that after hearing the news
about the murder of her husband, she became unconscious.
Vipin Kumar, PW-6 had narrated about the extra judicial
confession made by Jagsher Singh @ Bhola about having
committed the murder of Shammi. All these witnesses were
cross-examined at length, but nothing was brought on the
record, which would tend to show that their evidence cannot be
believed or trusted. The trial court also noticed that in the
statements made under Section 313, at least two of the
accused had admitted that Shammi had met them in the
restaurant. They had also stated that all of a sudden, he had
shot himself in the head, may be to show false valour. It was
stated that Shammi was depressed and aggressive and was
possibly under the influence of drugs. The trial court noticed that
all the accused persons were present in the hotel. They sat on
one table. Shammi, as usual had his licensed pistol in the dub
of his pants. Even though, there is no direct evidence of the
shooting, it has been established by the statement made by the
owner of the Hotel, i.e., Prince. He had clearly stated that he
was sitting in his cabin while the deceased and the accused
were being attended by a waiter of his Hotel, Ram Singh. Then
all of a sudden, he heard a sound, he thought as if some part
SANTOKH SINGH & ANR. v. STATE OF PUNJAB
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of the cooler had broken down but immediately thereafter the
accused persons tried to run away. However, the waiter Ram
Singh and two others managed to capture two of them. Soon,
it was found that someone among the four persons had fired
at Shammi, who was found dead on his seat.
11. Noticing the absence of fingerprints on the pistol the
trial court concluded that the fatal shot had not been fired by
the deceased. His fingerprints were bound to be present on the
pistol in case the shot had been fired by him. The fingerprint
expert in his report has clearly stated that the pistol had been
wiped clean. The trial court, in our opinion, rightly concluded that
the fingerprints were in all probability wiped away by the
assailant to remove the evidence of his fingerprints. There is
no reason for any other person to remove the finger prints. We
are unable to accept the far fetched suggestion of Mr. Tulsi that
the fingerprints have been removed to rule out the possibility
of the deceased having shot himself. There is no evidence on
the record to show that any other person had handled the pistol,
in the interval between the shooting and the arrival of the police.
Furthermore, there is no reason as to why the police would wipe
away the incriminating finger prints.
12. The trial court also noticed that the post mortem report
nowhere mentions that there was any blackening or tattooing
of any area surrounding the fatal wound. The trial court,
therefore, concluded that the possibility of suicide stands
completely ruled out. The only inference is that it was a case
of homicide. The shot was fired by someone, from amongst the
accused appellants. It has also come in evidence that in fact
two shots were fired. The empty shell of the first one which
missed was recovered some distance away from the body of
the deceased. Taking stock of the entire evidence, the trial court
has concluded that the circumstantial evidence adduced by the
prosecution formed a complete chain which leads to the
conclusion, consistent only with the guilt of the accused and
inconsistent with their innocence.
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13. The conclusions arrived at by the trial court have been
confirmed by the Division Bench of the High Court. The High
Court noticed in extenso the evidence of Indira Rani, PW-5,
wife of the deceased. She had categorically stated about the
manner in which the four accused had come to their house and
had requested her husband to accompany them. They had said
something about having discussions about the functioning of
the Union. She had also stated that when her husband left with
the appellants, he was carrying his licensed pistol with him. She
had admitted that in her statement under Section 161 Cr.P.C.,
she had not mentioned that Rajiv Kumar was present when the
accused persons had come to the house and she had also not
given information that her husband was also the Secretary of
the Employees’ Union and later on he had joined as a President
of INTUC. She also admitted that she had not mentioned to the
police that the owner of the hotel, Prince, had told her that her
husband had been shot dead by the four persons with whom
he had gone. She had, however, stated that after Prince had
informed her about the death of her husband, she had become
unconscious. She recovered only during the night. She denied
the defence version that the accused had never visited the
house. The High Court also noticed the evidence of Vipin
Kumar, PW-6, before whom, the accused Jagsher Singh @
Bhola and Gurdev Singh had made the extra judicial confession
at about 11.00 p.m. on 18.7.2002. The High Court then
recounted in detail the testimony of the owner of the hotel
Arjinder Pal Singh @ Prince (PW-7). In essence, he has stated
that the four appellants had come with the deceased and had
sat on one table in the dining hall. All of a sudden, he heard
the sound of a gun shot. At first, he thought may be the cooler
in the dining hall had broken down. He saw the accused
persons starting to run away from the restaurant. Two of them
were over-powered by the waiters, while the other two ran away.
He, confidently, gave the names of the accused, who had come
to the hotel. He went to the house of the deceased and informed
his wife about the murder. He categorically states about the
SANTOKH SINGH & ANR. v. STATE OF PUNJAB
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arrival of the police at about 11.00 / 11.15 p.m. His statement
was recorded and he narrated the incident to the police. He
also stated that the father of the deceased had reached the
hotel before the arrival of the police. However, the wife reached
a little later. According to this witness, the police had sent the
dead body for post mortem. They interrogated the staff and
recorded the statement. In his cross-examination, he has stated
that his restaurant was licensed for serving liquor. He had
himself gone to the area where the dead body of Shammi was
lying on the floor. He had noticed the glasses and other crockery
lying on the table. However, he did not notice whether those
glasses contained any liquor. The police did not take the
crockery, which was lying on the table into possession. He
stated that the deceased was bleeding from the mouth.
However, he did not see any blood stains lying on the table or
on the clothes. The Photographer, PW-8 stated that in the
Photograph (Ex. P16) alongwith the other utensils, only one
glass appears to be visible and no other glass was seen on
the floor. He, however, admitted that in (Ex. P14), it can be seen
that one carton of Bag Piper whiskey and one bucket of ice
are lying on the floor near the dead body. According to him,
the pistol and other ice bucket were seen lying on the table.
Therefore, there were two ice buckets on the site of the
incident. He has denied that any bottle can be seen lying on
the site near the dead body in the photograph (Ex. P13). This
witness stated that he had reached the site at about 12.15 to
12.13 a.m. at night, i.e., after midnight.
14. In our opinion, the conclusions of the trial court and the
High Court cannot be said to be manifestly erroneous. There
is clear evidence that the appellants had gone to the house of
the deceased to bring him out of the house for the purpose of
committing his murder. The reason given, of an effort to sort
out the Union disputes, was merely a ruse to bring the
deceased out of his house. Mr. Tulsi has submitted that the
appellants were on good terms with the deceased otherwise
they would not have gone to his house. Therefore, this motive
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A of Union rivalry is a concoction of the prosecution. Learned
counsel submitted that the wife of the deceased mentioned
Union rivalry for the first time in the Court. We do not see much
substance in the submission. It appears that there was serious
rivalry between the two Unions. Only two days prior to the
B shooting, the deceased had left the Union of the appellants and
become the President of INTUC. Had the deceased not
apprehended any danger from the accused persons, he would
certainly not have taken the pistol with him. His wife, who
appeared as PW-5 has clearly stated that he had specifically
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15. Mr. Tulsi has also submitted that the prosecution had
miserably failed to collect any material evidence from the scene
of the crime. Rather, they have tried to help the prosecution by
literally shifting the body of the deceased. According to him,
D even the prosecution witnesses themselves, have said that the
deceased was sitting on the table with the head on the table.
However, according to the police, the body was lying on the
floor and the pistol was lying some distance away.
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16. We are unable to agree with Mr. Tulsi. There is no
reason why the police as well as the prosecution would go out
of the way to falsely implicate or prosecute the appellants. Both
the trial court and the High Court upon appreciation of the
evidence have concluded that there is evidence to show that
F the accused and the deceased were carrying liquor with them.
The glasses and the chicken curry were served to them at the
hotel. The High Court also concluded that the presence of the
carton of Bag Piper whiskey would clearly show that the
deceased had consumed alcohol. Thereafter, the deceased
was shot in the head with his own pistol. Whether the pistol was
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snatched away by one of the accused persons or was handed
over by the deceased, is neither here nor there. The fact of the
matter is that the deceased was shot with his own pistol. There
was no blackening or tattooing of the skin surrounding the
wound.
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18. We may notice the scenario which emerge from the E
proven facts, on record:-
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17. Mr. Tulsi laid considerable amount of emphasis on the
fact that the deceased was a psychiatric patient. He was stated
to be suffering from schizophrenia. He had placed reliance on
the evidence given by Dr. J.P.S. Bhatia. We are of the
considered opinion that both the Courts have rightly rejected
the evidence given by DW-1. The patient admission and
treatment register produced seems to be a most unreliable
document. It has been maintained in a slip shod manner. There
are no systematically maintained entries, either about the
particulars of the patient, the disease or the treatment. This
witness admitted that there is some overlapping in the entries.
The document does not inspire any confidence. By no stretch
of imagination can it be said to be reliable document. This apart
there is no evidence indicating the particular expertise of Dr.
Bhatia. Even according to his evidence there was only
preliminary diagnosis of the medical condition of the deceased.
There was no proof of any expert clinical examination of the
deceased. From the above it cannot be said that the deceased
was suffering from chronic schizophrenia. This plea has been
rightly rejected by both the courts below.
The deceased and the accused were working in the same
organization. They were office bearers of the same Union. Two
days before the incident, the deceased alongwith the Union of F
the appellants and become the President of the rival union.
They, therefore, resented the action of the deceased. They
formed a common intention to eliminate the deceased. They
went to the house of the deceased and invited him to
accompany them to resolve the Union disputes. They took him G
to Hotel Genesis where they consumed liquor; they were also
served food by the hotel staff. At some point of time the pistol
of the deceased was taken by one of the appellants. It is wholly
irrelevant whether it was voluntarily given by the deceased or
taken by the assailant. Thereafter, one of the accused persons
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shot the deceased in the head with his own pistol. They then
wiped the fingerprints on the pistol and threw the pistol down
next to the body of the deceased. They tried to escape. This
would tend to indicate towards the guilt rather the innocence
of the appellants. Two of them were captured just outside the
hotel, the other two managed to escape. The injury on the
deceased does not indicate that he had shot himself. The
injuries show that the shot has not been fired at point blank
range. There is no tattooing or blackening of the skin
surrounding the entire wound. The consumption of liquor cannot
be doubted in view of the evidence given by the waiter, who
served the food. This waiter had clearly stated that the visitors
had brought the liquor with them. They were only given the
glasses and the buckets of ice. They had also ordered chicken
curry, which was duly given to them. To ensure that the waiter
does not become an eye witness to the murder, he was
conveniently removed from the dining hall. They told him to go
and get two more chapattis. He, therefore, went into the kitchen
of the hotel. While, he was coming out of the kitchen, he heard
the sound of gunfire. Although, this witness was declared
hostile, it is consistent with the prosecution version. Even
otherwise, the carton of Bag Piper whiskey is quite visible in
one of the photographs.
19. All these circumstances taken together clearly form
such a continuous and unbroken chain as to leave no manner
of doubt that the deceased was shot dead by one of the
appellants. The cleaning of the pistol to remove the fingerprints
is a circumstance which is a strong pointer to the guilt of the
appellants.
20. In our opinion, the judgment of the trial court as also of
the High Court do not call for any interference. The appeal is,
therefore, dismissed.
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Appeal dismissed