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(2015) 2 LAW

RNI No. APENG/2005/18975

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A world law fortnightly published from Hyderabad, India.

Editor: I. Mallikarjuna Sharma


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Sagar Dhara (Engineer, Hyderabad), Dr. Koenraad Elst (Indologist, Belgium)

Volume 11: Part 2

15 October 2015

THE RUSSIANS VE COME!

CONTENTS
1. The Russians ve Come!
1
2. Historical inevitability or
2,
Electoral corruption? (33) [IMS] 83
3. Autobiography of Martyr
Ramprasad Bismil (12)
3-4
4. First, Do No Harm ! Less
Medicine, More Health !
5-6

Sthabir Dasgupta

5. Sushil Ansal v. State


through CBI [IND-SC]
7-11
6. State of J & K v. R.K.
Zalpuri & Ors. [IND-SC]
12-17
7. State Bank of Hyderabad
v. RABO Bank [IND-SC]
18-23
8. Govt. of AP, thru Principal
Secretary & Ors. v. Pratap
24-49
Karan & Ors. [IND-SC]
9. Sanjiv Bhatt v. Union of
India & Ors. [IND-SC]
50-73
10. Rajasthan State R.T.C. v.
Alexix Sonier & Ors. [IND-SC] 73-78
11. Political Islam is the Enemy,
Not Muslims, Farzana Hassan 79
12. The West should ban
the Burqa, Tarek Fatah
80
13. The Right to Privacy (1),
Samuel D.Warren & Louis D. Brandeis

14. Poems, Theodore Tilton

81-82
84

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No. 19
Kudos heroic Khurdish
Women fighters!

The tables turned?

Hero
Long live Secular
Netanyahu, Israel
Obama, U.S.
Not comfortable with each other

Putin, Russia
New found friendship?

Netanyahu

Jihadi John

Democratic
Khurdistan!

Oh, the Russians are coming, coming was a constant cry of the British
imperialists in the 19th century in Afghanistan-Iran region; then it became
Oh, Bolsheviks are coming, coming! in the early 20th century and finally
to Oh, the Soviets have come, drive them out! scare by the US-UK axis
in the 60s and 70s, which in fact created all the fiasco in the regions now.
But now the Russians have come, on their own right and might, to the
Middle East; yet, not seen as any oppressors but as real liberators from a
most horrific religious fundamentalist terrorist regime in the world, which
in fact has been created and aided by the American imperialists and their
malevolent allies, though for public consumption these same Frankensteins
proclaimed a phony war against their progeny. The relieving effect of
Putins entry and vigorous attacks in the region to protect their protg
Assad of Syria, as well the persecuted and fast-being-eliminated minority
communities therein, is so profound and obvious that even Netanyahu, the
belligerent leader of Israel, with constant enmity toward Syria, Hezbollah
and Iran, has begun to see the light of the day and cultivate friendship with
Russia now. Putin, on his part, seems to have assured Israel that nothing
detrimental to its existence and security was intended by him. Also,
President Obama has been propagating a supportive agenda of all Muslim
terrorist organizations and acting in a way quite uncomfortable to the
interests of Israel in the region. And it appears that public opinion in
Israel, as also in Europe in general, is heavily in favor of Putin and lauding
him as a virtual hero-deliverer. Of course, one also notices the severe
embarrassment displayed by Obama and the Western leaders in this
context, who are time and again warning that they would take serious steps
to counter the Russian invasion in case their allied Muslim terrorist outfits
in the region are seriously attacked. But it is well known that the
reactionary regime in Turkey is already acting as a proxy to the ISIS, and
Putin has seriously warned the Turkish leaders of nemesis in case they
continue so. So, one has to wait and watch whether further developments
lead to any great war on a worldwide scale, but certainly this editor firmly
supports the Russian intervention and desires the total destruction of the
imperialist and fundamentalist forces.
1

NOTE: The opinions and comments in the editorials are exclusively the Editors and
need not necessarily reflect the approval or consent of all or any of the
editorial advisors or of the publisher even - IMS.

(2015) 2 LAW

HISTORICAL INEVITABILITY OR ELECTORAL CORRUPTION?


[Tracing the history of Andhra, Visalandhra and separate Telangana movements]

Within Seven weeks of the Andhra movement


delegation meeting Mr. Montagu at Madras on 20
December 1917 and submitting their representation
requesting formation of a separate Andhra province
from out of the Telugu speaking districts of Madras
Presidency, Sri Bayya Narasimheswara Sarma
moved a resolution in the Imperial Legislative
Council on this matter, stressing the need for
formation of Andhra Province, but wording it as a
manifesto for linguistic reorganization of several
provinces in British India. Moving such resolution
in the afternoon session of 6 February 1918, Rao
Bahadur Sri B.N. Sarma firstly clarified that he was
not insisting on reorganization of provinces to take
place before launching of the Reforms Scheme
proposed by the government and implementation of
self-governance systems in consonance with it. He
declared that not all provinces need such linguistic
reorganization but in Madras Presidency, the
Oriyas, the Kannadigas, the Keralites and the
Andhras are certainly desiring separate states for
themselves and it would be beneficial to effect such
reorganization therein. Likewise he reminded the
Members of the demands for a separate Sind
province and for Maharashtra, for carving out
Assam as a separate State etc. However, instead of
straightaway asking the Council to pass a resolution
in favor of formation of a distinct Andhra Province,
Sri B.N. Sarma worded the resolution requesting for
linguistic reorganization of provinces in the entire
British India perhaps this was to show and tell
other Members that he was not motivated by any
desire for particular favor to any single linguistic
community. However, it is to be noted that, all the
same, Jinnah passed some disparaging remark that
Sri B.N. Sarma seems to have moved this resolution
for publicity and fame to him among the Andhras
which irked Sri Sarma very much and put him in
the defensive. Sri Srinivasa Sastri, the noted
Congress [in later times, Liberal] Leader, also did
not support Sri B.N. Sarma though he said he
agreed in the main with the demand for formation

- I. Mallikarjuna Sharma

of an Andhra Province or provinces on linguistic


basis but that was not the right time for moving
such a resolution since such an effort and campaign
would stand in the way of the implementation of
Reforms Scheme proposed as a measure towards
responsible government and promoting selfgovernance systems. Sir Surendranath Banerji also
strongly opposed the resolution saying, nothing
should stand in the way of the main purpose of the
Reforms Scheme sought to be introduced by the
Government of India and it would also tend to
increase the internal rivalries between different
communities in the country. However, he also said
that he might have no objection to support the
resolution if it be drastically amended on the lines
advocated by him. Dr. Sapru also opposed the
resolution. Only Sri K.V. Rangaswamy Iyengar
seems to have wholly supported the resolution.
Strangely, government members expressed their
neutrality on the matter but it is noteworthy that the
resolution was rejected mainly because of stiff
opposition from the non-official members of the
Council. It seems Sri B.N. Sarma had not done his
homework properly, and also he seems not to have
done any prior propaganda and mobilization among
the independent Members of the Council before
moving his resolution.
The Andhra Patrika, in its editorial on 8 February
1918 captioned Sri Sarmas Resolution
congratulated Sri B.N. Sarma for having taken the
task of moving such resolution for linguistic
reorganization of the provinces with specific
reference to the formation of Andhra province and
expressed dismay that a majority of the members
opposed it for various reasons. The editorial was
particularly critical of Sir Surendranath Banerjis
stance and expressed surprise that though he stated
that he was in favor of the resolution with certain
amendments yet he was rejecting it saying it was
not the right occasion and time to move it. Then, it
satirically reviled Sri Srinivasa Sastris contention
that such resolution will defeat the aims of the
reforms scheme proposed by the Government; and
it was particularly scathing in its condemnation of
Jinnahs invective against Sri Sarma.

Continued from Law Animated World, 15-09-2015 issue;


emphases in bold ours - IMS.

(Go to p. 83)
Law Animated World, 15 October 2015

AUTOBIOGRAPHY OF MARTYR RAMPRASAD BISMIL


fled from the place. Running away, he reached a
village and stayed there in a room. Next day or
so, his companion had, for some work, gone to
the market and while going locked the door of the
room from the front by putting on the chain
shutter. He did not come back though and as a
result Panditji was locked up in that room for 3
days without food and water even. He thought
that his colleague must have got entangled in
some trouble outside and hence did not come
back. Finally, somehow he got the chain shutter
outside the door removed and came out.
However, since that colleague had taken all the
money with him, Dikshit was not left with even a
single paise now. So he walked all the way from
Kota to Agra. Somehow or other he managed to
reach his home.
He was quite sick at the time. His father got
panicked and, in order to avert any danger to the
other members of the family, wanted to give
information to the police. However, Gendalalji
repeatedly and very humbly prayed to him not to
do so, [then his father refrained from doing so,] and
left home within 2-3 days. He searched a lot to
find us but could not trace any one of us. He then
joined as a water server in a free water-kiosk () but
his condition was worsening day by day. His
disease was assuming dangerous dimensions. He
then sent for his younger brother and wife.
Younger brother came but was perplexed, not
knowing what to do. Really, what he could do?
At last, he took Gendalalji to a government
hospital for admission and treatment. Thereafter
he sent away his sister-in-law (Gendalaljis wife) to
some other place and went back to take care of
his brother. But by that time the fatality occurred,

PART 2:
2.7 Pandit Gendalal Dikshit:
Due to police firing, Brahmachari
received many bullet injuries all
over his body. A pellet struck the
left eye of Pandit Gendalalji and his
eyesight in the left eye began to vanish. While
some persons died due to poison, yet some others
fell to police bullets and thus 25-30 members out
of 80 or so total members of the squad lost their
lives. All the rest were captured and taken to and
locked up in the Gwalior Fort. Somehow coming
to know of this incident, I and some other
members of our society went to meet Pandit
Gendalalji and others inside the Gwalior Fort,
when Panditji informed us about all these
happenings through a chit (letter). In that course,
one day we also fell in trouble having become
suspects of the police in the Gwalior Fort and it
was with much difficulty and through the good
offices of an officer there, that we could come out
unscathed from the Fort.
When the Mainpuri Conspiracy case
prosecution began, the State Government called
for and brought Pandit Gendalalji from Gwalior
State. The water and air inside Gwalior Fort was
quite detrimiental to health and Panditji
contracted T.B. there. As such Panditji could not
walk even the distance from Mainpuri Railway
Station to the Jail at a stretch and had to stop and
take rest for 10-11 times in the middle. When the
police enquired about his situation, Panditji
replied to them: I will tell you all the details [of
our activities]. Why have you arrested all these
young boys? Police officers trusted him, took
him out of the jail and kept him along with the
other government witnesses in another place.
There Dikshit ji learnt about all the
information about the case and police activities
[from other witnesses] and one night, taking
along with him another government witness, he

writing about which my whole body is shaking with


sorrow. Gendalalji had departed from this world

and his brother could find only the dead body of


Gendalalji at the hospital. We never apprehended
even in dreams that Pandit Gendalalji Dikshit would
have to offer the final sacrifice of his life in such a
helpless condition for the patriotic cause. Actually
Panditji always desired that he should die due to bullet
shots in an actual encounter with police only. A great

Continued from Law Animated World, 30 September


2015 issue; emphases in bold ours - IMS.
3

Law Animated World, 15 October 2015

I had to witness and experience an amazing


situation. Nobody was prepared, none was bold
enough, to even stand near me. If at all I go near
some known person and stand there, he would
just say Namaste and walk away. The police
were fearsome and feverish. At every moment,
they were shadowing me. How long can this type
of life be suffered? Then I began to learn the art
of weaving cloth; but the weavers used to trouble
me much. None was prepared to teach me the
work. With great hardship I learnt some work.
Right at that juncture, there arose a vacancy
for the post of a manager in a factory. I tried hard
to get that post. I was asked to deposit a surety of
Rs. 500/- for joining the post. But I was in quite a
miserable condition. I used to go without food for
3-3 days at a stretch even, because I had taken a
vow not to ask anybody for help. I had come here
(Shahjahanpur) without informing anything to my
father even. Wherefrom can I bring these Rs.
500/-. Even so I asked two-three friends to just
stand surety for Rs. 200/- each but they refused
straight away. That was like a lightning strike at
my heart. The entire world began to appear
totally dark to me. However, afterwards due to
the kindness of yet another friend, I got the job.
Then onward, my condition began to improve a
bit. I began to spend time like gentlemen of the
town. I also began to have some moneys with me.
Now, those very friends, who flatly refused to
give me at least Rs. 200/- surety, would just fling
away their purses containing 4-4 thousand rupees
and their guns, licenses, etc. and go places with
the confidence that all these things would be in
safe custody under me. I used to get amused, and
laugh very much in myself, seeing this sort of
(to be continued)
change of situations.
***

soul of India has departed [and merged in the Ultimate Soul


(Parmatma)] but that without the least knowledge to any
one in the country! Later on a detailed biographical

sketch of his was published in the monthly


journal Prabha. Pandit Gendalalji Dikshit was seen to
have been the chief leader of the Mainpuri Conspiracy.
In regard to this Mainpuri conspiracy some
special developments could be pointed out in that
only two of its leaders ever came into the police
grip; out of these two, first Pandit Gendalalji
escaped, taking along with him another
government witness too. Later another leader, Sri
Shivkrishna, escaped from the jail and was never
found out later. Some people were convicted and
sentenced to various jail terms but just after six
months all of them were released due to the
proclamation of General Amnesty. The wrath of
the Intelligence Branch of the Police could not be
fully pacified and it had to suffer much obloquy
too due to such happenings in this case.
PART 3:
3.1 Free Life Again:
After the proclamation of the General
Amnesty when I came back to Shahjahanpur

(2015) 2 LAW

Autobiography of Martyr Ramprasad Bismil

General Amnesty of December 1919 declared as per the


insistence of Montagu in the context of the MontaguChelmsford Reforms. In the hope of sweetening the
atmosphere for the introduction of the reforms, a general
amnesty for political prisoners was declared at Montagus
instance. The Government of India wanted to exclude
from it those who had taken part in or promoted crimes of
violence, but Montagu rejected the form of words that
was proposed, and the upshot was the release of most of
those convicted for participation in the recent disorders
and of nearly all the political detenus and Bengali
terrorists [Sir Penderel Moon, The British Conquest and
Dominion of India, Part 2, p. 997]. in December 1919,
all got the benefit of the General Amnesty advised by Mr.
Montagu to create a favourable atmosphere for his
Reforms Scheme which had just gone through
Parliament. This premature clemency, as might have been
expected, completely failed to produce the hoped for
result [Michael ODwyer, India as I knew it: 1885-1925,
Mittal Publications, New Delhi, p. 71]. In 1920 the
general amnesty and release of so-called political
prisoners in India began, following the Proclamation of
December 24, 1919, by King George V, ostensibly to
celebrate the end of World War I [John Pincince,
http://dx.doi.org/10.3998/pc. 12322227.0005.006].

Law Animated World, 15 October 2015

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PRIMUM, NON NOCERE (FIRST, DO NO HARM)!


LESS MEDICINE, MORE HEALTH
- Sthabir Dasgupta

President Garfield was shot with a 0.44 calibre


pistol, from a point blank range, on July 2, 1881.
There were two consecutive bullet injuries, one in
the arm and the other in the back. the back
injury was very serious but not lethal. It had
traversed deep tissues, but the bullet stopped just
short of major organ and blood vessels. He was
hospitalized immediately and a team of doctors
led by a surgeon did their utmost. He had endured
the trauma for 11 weeks before succumbing to
death on September 19, 1881. It is interesting to

This anecdote is one of many such in a newly


published book, "Less Medicine, More Health", by
H Gilbert Welch, an academic physician and
professor of medicine in the USA. The anecdotes
remind us of the first principle of medical
practice that says, First, Do No Harm. It only
indicates that while medicine is tremendously useful to
us, some of its aspects are harmful as well. A
responsible medical man, therefore, is asked to be
doubly careful and considered while delivering
his service to the sick. [This] must be reiterated
[today also], because the unique development that

note that Charles J Guiteau, his assassin had defended


himself in the court of law by saying that the bullets
were fired by him, but he did not kill the president!

everybody witnesses to his dismay today is that modern


medicine, instead of being more and more professional,
has become more and more an investment opportunity.

Then who had killed the 20th President of the US?


The assessment of Dr Donald Trunkey, a famous

Such an orientation clearly produced more and


more urge to treat. This urge indulges one to
diagnose more, to order more tests and to
intervene into the body and psyche of the
unassuming people, even when such interventions
serve no fruitful purpose
in Garfield's case the doctors were under the
most compelling situation. The patient was none
other than the President of the USA. So, they had
to be active, more than it was scientifically
required rather than simply supervising a good
and efficient supportive and symptomatic care.
Or else, they would have been criticized for
deficient care. Dr Welch says that the doctors
would certainly not have been so over-active had
the victim been a common soldier. There were
numerous Civil War veterans who just a few years
earlier had survived bullet wounds of similar
severity. What was done for them? Nothing.
some may argue that the doctors merely
failed to control infection which was the real
cause of death of President Garfield. But the
question is how do such infections occur and how do
they become so fatal? The answer is that we do such

surgeon and academician almost 100 years later, was


simple and blunt. He said the president was killed by
his surgeon. Was there any lack of medical

attention? Was there a conspiracy? Not at all; on


the contrary, the medical attention was round the
clock and too aggressive.
Everybody knows that the cause of his death was
severe and multiple infections. the surgeon had

tried repeatedly, for several weeks to explore the


back wounds with fingers and metal probes in
order to feel the position of the bullet so that it
could be taken out from his back. although the
concept of sterilization was known at that time, there
were surgeons who did not pay heed to it. President
Garfield had died of severe infections resulting in
multiple abscesses which were avoidable. The
conclusion of Dr Trunkey was obvious, for the
infections were introduced in the patient's body by
unwarranted intervention. The interventions were
unwarranted indeed, because now we know that the
bullet should have been allowed to stay where it was and
one should have waited till the wound healed by itself.
Thus the wound was not fatal but the subsequent
actions and knee-jerk response on the part of the
surgeon were.

things to our patients in our hospitals that weaken their


vitality and their natural power of resistance. This
causes infection to be more serious and more and more

Courtesy: Sthabir Dasgupta and Frontier, October 4-10,


2015; suitably edited; emphases in bold ours - IMS.
5

Law Animated World, 15 October 2015

First, Do No Harm ! Less Medicine, More Health ! (Sthabir Dasgupta)

(2015) 2 LAW

Arthur Bloomfield, the outstanding Professor of


Medicine, Emeritus, Stanford University School
of Medicine had to plead that every hospital
should have a plaque at the entrances stating:

resistant to treatment. Our over-activism against


troublesome infection results in killing of the good
bacteria that are responsible to maintain the normal,
ecological balance of life. Today this is termed

as hospital care-associated infections. However,


it is not a problem of infection only. [in]
problems other than infection also our overenthusiasm results in the newer diseases or
conditions that were never there before starting
treatment. development of disease or condition due
to treatment is called iatrogeny. modem medicine

'There are some patients whom we cannot help; but


there are none whom we cannot harm'

The paradox of modern progress is that we have


chosen to ignore what is really beneficial to us. The
medical establishment has tried hard and has
succeeded to a great extent to confuse the people
about the virtue of medicine and modernity. As a
result, people's and medical men's faith in the marvels

has become the victim of its own creation: the more you
do the less (or the worse) you get!

It goes without saying that there are desperate


times when actions even they seem to be
rigorous, are immensely required. It is truer

of modern medicine is bought at an enormous psychic


and monetary expense. The most obvious force
promoting unnecessary and even necessary action today
is money. Along with this there are other

however that in many other times, particularly with


terminally ill patients they result in disasters.

incentives also. Health researchers have


warned many times that the medical establishment

Although the popular assumption is that action is


always better than inaction, the disturbing truth as
explained by Dr Welch in his book is that action is
not reliably the right choice. In fact, as we were
taught earlier in our medical schools that masterly
inactivity is sometimes the wisest judgment. We were
also taught that the best surgeon is one, who knows
when not to do surgery. Similarly, the best doctor is
not one who can prescribe easily; on the contrary, it is
one who can make considered evaluation. Inaction
however, is not synonymous to inactivity. Inaction is a
grand strategy of treatment. This is because
sometimes our intended actions complicate the ailment
more. In these circumstances inaction serves as
the best action. Inaction is against purposeless action.
there are some problems which disappear on their
own, by time. There are others which may persist,

we are so proud of has become one of the leading causes


of death today. reliable data and statistics prove
that the medical profession itself tops the list of causes
of death followed by cancer and heart attack, in that
order of preference! understand that all risks
cannot be lowered and trying creates risks of its own.

They will understand that early diagnosis that the


medical establishment is so fond of can needlessly turn
people into patients and newer interventions are
typically not well-tested and often wind up being
harmful. There are seven such popular assumptions
which, when put to test prove to be false. Such an
understanding is required today, for medical
decisions are not simply about science, they also involve
value judgment. true that today's circumstances
are not comparable to those of yesterdays; but
still a young medical man will also realize that
the medical profession is more a calling and less
an investment opportunity. We must treat the sick.
As Dr Welch says, This is the most important part

but we adapt to them. There are still others which


wax and wane. So, it is a false assumption that
healing is not possible without medical care. The fact
is that there are many things that can be done, there
are some things that should be done and there is
precious little that must be done.
Medicine however knew it from its very
inception. Hippocrates had had to enunciate four
millenia earlier that Primum, non nocere, meaning
'First, do no harm', because it was known that all
therapies are inherently pregnant with iatrogeny.
Law Animated World, 15 October 2015

of medical care, but it's not what most of medical care


is. And much of medical care doesn't reliably lead

to better health. It is time for us to remember


that the lexicons trace both the term modern and
medicine to Latin Modus, meaning Measure or
Matra in Sanskrit. So, modern medicine is all about a
sense of proportion.
*****
6

(2015) 2 LAW

principle that the sentence should not be excessively harsh or


ridiculously low, Sri Anil Dave J., speaking for the three
Judge Bench set up to finally decide the sentencing as the two
Judges differed on its mode, has finally directed that a fine of
Rs. 30 crore on each appellant should be imposed and if the
said fine is paid within a period of three months, the sentence
of the appellants be reduced to the sentence already
undergone.

(2015) 2 LAW ISC-129

SUPREME COURT OF INDIA


AT NEW DELHI
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 597 of 2010

***

Date of Judgment: Tuesday, 22 September 2015

Sushil Ansal

Appellant

Respondent.

JUDGMENT
ANIL R. DAVE, J.

Versus

STATE through CBI

CRIMINAL APPEAL Nos. 597 and 598 of 2010

1. The afore-stated appeals had been initially


heard by two Honble Judges of this Court.
Though the order of conviction had been upheld
by the learned Judges, on the subject of sentence
the learned Judges differed. Justice T.S. Thakur
passed the following order on the sentence:

WITH CRIMINAL APPEAL NO.598 OF 2010


GOPAL ANSAL .....APPELLANT
VERSUS
STATE THROUGH CBI ..RESPONDENT
WITH CRIMINAL APPEAL NO.599 OF 2010
HARSARUP PANWAR APPELLANT
VERSUS
STATE THROUGH CBI ..RESPONDENT
WITH CRIMINAL APPEAL Nos.600-602 of 2010, 605 of 2010,
606 of 2010 and 613 of 2010

(i) Criminal Appeal Nos. 597 of 2010 and 598


of 2010 filed by Sushil Ansal (A-1) and Gopal
Ansal (A-2) respectively are hereby dismissed
upholding the conviction and sentences awarded
to them.

Citation: (2015) 2 LAW ISC-129

Whereas Justice Gyan Sudha Mishra passed the


following order:

CORAM:
ANIL R. DAVE, J.

44. Therefore, for the reasons recorded


hereinbefore, I am of the view that in lieu of the
enhanced sentence of a period of one year which
I allow in the appeals preferred by AVUT and
CBI, the same be substituted with a fine of Rs
100 crores (one hundred crores) to be shared and
paid by A-1 Sushil Ansal and A-2 Gopal Ansal
in equal measure i.e. Rs 50 crores each and Rs
100 crores in all, and shall be paid by way of a
demand draft issued in the name of the Secretary
General of the Supreme Court of India which
shall be kept in a fixed deposit in any
nationalised bank and shall be spent on the
construction of a trauma centre to be built in the
memory of Uphaar Victims at any suitable place
at Dwarka in New Delhi as we are informed that
Dwarka is an accident-prone area but does not
have any governmental infrastructure or public
health care centre to treat accident victims. For
this purpose, the State of Delhi, as DVB which
is/was an instrumentality of the State, shall allot
at least five acres of land or more at any suitable
location at Dwarka within a period of four
months of this judgment and order on which a

KURIAN JOSEPH, J.
ADARSH KUMAR GOEL, J.
***
Short Notes: Upahaar Cinema Burning Tragedy Case
This is a short but important decision regarding the well
known Upahaar Cinema burning accident tragedy in Delhi
which took the lives of scores of persons. The basic cause was
proved to be a defective electrical transformer in the premises
of the Cinema theatre the breakdown of which generated
immense flames that spread into the air-conditioned theatre
and the persons in the balcony for whom only one exit was
available could not escape the fury of those flames and toxic
gases like Carbon Monoxide emanating therefrom. The
owners of the Theatre were found to be criminally liable,
convicted and sentenced to one year imprisonment by the trial
court which the Supreme Court in its appellate jurisdiction
enhanced to maximum of 2 years under Section 304A IPC but
one of the judges was prepared to offset the extra one year for
a heavy fine of 100 crores each for the convicts owners which
sum was to be used to set up a Trauma Center or one already
existing for the benefit of patients in emergencies. Per the

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Sushil Ansal v. State through CBI [IND-SC]

Courtesy: Supreme Court of India at http://judis.nic.in/;


emphases in bold ours - IMS.
7

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Sushil Ansal v. State through CBI [IND-SC]

4. Upon hearing the learned counsel and on


perusal of the record pertaining to the case, we
find that the root cause of the fire was 1000 KVA
transformer installed and maintained by the Delhi
Vidyut Board (DVB), which was in the premises
of Uphaar Cinema. The said 1000 KVA transformer,

trauma centre for accident victims along with a


Super speciality department/ward for burn
injuries shall be constructed to be known as the
Victims of Uphaar Memorial Trauma Centre
or any other name that may be suggested by
AVUT/Uphaar Victims Association. This
trauma centre shall be treated as an extension
centre of the Safdarjung Hospital, New Delhi
which is close to Uphaar Theatre and was the
accident site which is hard-pressed for space and
desperately needs expansion considering the
enormous number of patients who go there for
treatment. The trauma centre to be built at
Dwarka shall be treated as an extension centre of
the Safdarjung Hospital to be constructed by the
respondent-accused
Sushil
Ansal
and
respondent-accused Gopal Ansal under the
supervision of the Building Committee to be
constituted which shall include Secretary
General of the Supreme Court, Registrar
Administration of the Supreme Court along with
a representative of AVUT nominated by the
Association and the Hospital Superintendent,
Safdarjung Hospital, New Delhi within a period
of two years from the date of allotment of the
plot of land by the State of Delhi which shall be
run and administered by the authorities of the
Safdarjung Hospital Administration as its
extension centre for accident victims.

even though located within the Uphaar cinema


premises, did not belong to the appellants.

5. The said transformer caught fire on 13.6.1997


around 6.55 a.m. damaging the area surrounding
the transformer. The fire was brought under
control by 7.25 a.m. and it was repaired by two
employees of the DVB along with Senior Fitter,
Bir Singh, who were possibly not highly qualified
in the field of Electrical Engineering. The repairs
were carried out without use of any special
equipment. The said transformer was recharged
for resumption of electric supply by 11.30 a.m.
on the same day.
6. As the factual matrix would further unfurl, on
the fateful day, around 3:00 p.m., the matinee
show of film Border started. Between 3:55 and
4:55 p.m., there was a general power shut down;
however the
Cinema
show
continued.
Immediately, on resumption of electricity at 4:55
p.m., there was intense and heavy sparking in the
DVB transformer, which led to B phase cable
detaching, sliding down of the B phase cable,
forming an arc and ultimately resulting in rupture
of the Transformer fin. Through this slit, the
transformer oil spilled out, caught fire and
consequently set ablaze several vehicles parked
nearby in the stilt floor. This fire generated hot
thick black smoke, which travelled upwards,
accelerated by a Chimney effect.
7. The smoke entered the hall from the staircases,
air conditioning ducts as well as the area beneath
the screen and the audience sitting in the ground floor
of the auditorium escaped immediately. The audience

2. In view of the difference of opinion between


the two learned judges regarding quantum of
sentence, the matter has been placed before us in
pursuance of the following order dated
5.03.2014:4. Criminal Appeals No. 597, 598 and 599 of
2010 filed by the appellants in those appeals and
Criminal Appeals No. 605, 606 and 613 of 2010
filed by the State and Criminal Appeals No. 600602 of 2010 filed by the Association of Victims
of Uphaar Tragedy to the extent the said appeals
involve the question of quantum of sentence to
be awarded to the convicted appellants in the
appeals mentioned above shall stand referred to a
three-Judge Bench.

sitting in the balcony found it hard to escape as there


were no lights due to lack of power supply, nor were
there any emergency lights or lights to give indication
about the exit. Moreover, there were no warnings
through public address system for immediate
evacuation in an orderly manner. The closure of the
right side exit, elimination of one exit and the narrowing

3. We have heard the learned counsel appearing


for the parties and have also carefully gone
through that portion of the judgment, whereby the
sentence has been imposed upon the Appellants.
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Sushil Ansal v. State through CBI [IND-SC]

of another exit as well as introduction of certain seats


near the left side exit, together with bolting of certain
doors in the balcony caused panic and resulted in
delayed escape of most of the spectators occupying
balcony seats. Most of the spectators were

ISC-131

the appellants have already been convicted of the

offences under Sections 304-A/337/338 read with


Section 36 of the Indian Penal Code (IPC) and
Section 14 of the Cinematograph Act, 1952 and
the conviction has been affirmed by this Court.

subsequently rescued by the fire fighters, but they


were severely affected by the smoke. The fire
was soon declared a major one and rescue
operations continued till about 7:30 p.m. The

13. One can say that if the second exit leading to


another staircase had not been closed, possibly
the damage and deaths could have been less. The
reason for which the second exit was closed was
arrangement of additional seats and change of
layout of seats in the balcony. The appellants, the
owners of the cinema premises, were aware of the
fact that one exit had been closed due to addition
of seats and change in the layout of the seats and
the said fact could have exposed the spectators to
the risk they actually faced, which ultimately
resulted into the above-said mishap. Be that as it
may, the fact remains that the appellants have been
found guilty and they have been convicted.

entire mishap claimed lives of 59 persons besides


injuries to nearly 100 others.

8. It is pertinent to note here that initially there were


two exits in the balcony portion of the cinema theatre.
One portion was open as an exit, whereas another
had been closed down on account of certain additional
seats placed near the exit. The additional seats were
arranged with permission of all authorities concerned
and even the second exit had also been closed with
permission of all authorities concerned. The

representatives of the departments concerned like


Home Department, Police Department, Fire
Department, etc. had visited the theatre before
giving necessary permission for increase in the
number of seats, approval of the changed layout
of seats and for closure of the second exit.
9. Under these circumstances, when another exit
had been closed on account of arrangement of
additional seats, which had been done with proper
permission of the concerned authorities, the

14. On the issue of sentence, one of our brother


Judges, T.S. Thakur, J. has upheld rigorous
imprisonment of one year which has been
imposed by the High Court. So far as Gyan Sudha
Misra, J. is concerned, she was of the view that
the sentence imposed was insufficient and
therefore, it should be enhanced and possibly
because the heirs of the victims were not
interested in getting compensation, she was of the
view that appropriate fine should be imposed
upon the appellants, which should be used for a
public purpose so that in future, in the event of
any such mishap, the injured persons can be
given prompt and effective treatment. The
learned Judge had, therefore, perhaps rightly
thought about imposing rigorous imprisonment of
one additional year and looking at the fact that
the victims had already lost their lives and the
amount of fine which could be recovered from
the appellants can be used for a better public
purpose, the learned Judge imposed fine of Rs.50
crore on each of the appellants in lieu of the
additional sentence which had been proposed by
observing:-

spectators of the balcony had to rush only towards one


exit which was leading to the staircase, already occupied
with toxic gases including carbon monoxide.

10. Due to inhalation of toxic gases including


carbon monoxide, most of the spectators, who
had occupied balcony seats, collapsed in the
balcony or on the staircase and ultimately the
unfortunate mishap, which is the subject matter of
this case, took place.
11. In view of the afore-stated undisputed facts,
the issue with regard to imposition of sentence
upon the appellants is to be decided by us. We are
concerned with imposition of sentence in a criminal case
and not with awarding damages in a civil case.

Principles for deciding both are different.


12. In the instant case, we are only concerned with
imposition of appropriate sentence for the reason that

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Sushil Ansal v. State through CBI [IND-SC]

40. Hence, I am of the view that interest of


justice to some extent would be served by
imposing on the Accused Appellants a
substantial fine and not merely a jail sentence.
Thus, while the sentence of one year imposed by
the High Court is upheld, the additional sentence
of one year further while allowing the appeal of
AVUT, is fit to be substituted by a substantial
sum of fine to be shared equally by the
Appellants Sushil Ansal and Gopal Ansal along
with DVB which also can not absolve itself from
compensating the victims of Uphaar tragedy
represented by the AVUT.
42. But while allowing the appeal of AVUT and
CBI, I take note of the fact that since Sushil
Ansal is now more than 74 years old and was
running the theatre business essentially along
with his brother Appellant No. 2 Gopal Ansal, I
consider that the period of enhanced sentence in
these appeals imposed on the Appellants Sushil
Ansal and Gopal Ansal may be substituted with
substantial amount of fine to be specified
hereinafter and paid in the appeal bearing Nos.
600-602 of 2010 preferred by AVUT and
Criminal Appeal Nos. 605-616 of 2010 preferred
by the CBI which shall be shared by the
Appellant Sushil Ansal and Appellant Gopal
Ansal in equal measure along with the Delhi
Vidyut Board as I have upheld the sentence
imposed on their employees too. My view stands
fortified by the order passed in the case of
Bhopal Gas Leak Tragedy where the punishment
for criminal negligence was allowed to be
substituted by substantial compensation which
were paid to the victims or their legal
representatives.

substantial amount towards fine in lieu of the


undergoing remaining period of sentence. He also
pointed out that out of one year sentence, they
had already undergone substantive sentence of 56 months and with remissions, sentence
undergone worked out to about nine months.
16. We have duly considered the matter. It hardly
needs to be mentioned that an appropriate
sentence has to be awarded by taking into
consideration the gravity of offence, the manner
of commission, the age of the accused and other
mitigating and aggravating circumstances. The
sentence should neither be excessively harsh nor
ridiculously low.

17. We are conscious of the fact that matter of


this magnitude may call for a higher sentence, but
the Court has to limit itself to the choice available
under the law prescribing sentence. The fact that
remains is that the maximum sentence prescribed
under the law is period of two years and the High
Court had chosen, in the facts and circumstances
of the case, to award sentence of one year which
has been approved by Thakur, J. In the dissenting
opinion by Misra, J. the modification is that the
sentence be enhanced but giving an option to pay
substantial amount in lieu of the enhanced
sentence with further direction to reduce the jail
sentence to the period already undergone, if the
amount of fine in lieu of enhanced sentence is
paid.
18. After having considered the facts of the case,
the views expressed by both the learned Judges
and the arguments advanced by the learned
counsel appearing for both sides, we are in
agreement with the view expressed by Misra, J.
that sentence awarded by the High Court needs to
be enhanced to the maximum period of two years
under Section 304-A but in lieu of additional
period of sentence of one year, the substantial
amount of fine needs to be imposed. We are
further of the view that in case the said amount of
fine is paid, the sentence should be reduced to the
period already undergone, as indicated by Misra,
J. in the case of Sushil Ansal (A1). On the
principle of parity, the case of Gopal Ansal (A2)

15. Shri Ram Jethmalani, learned senior counsel,


submitted that in the facts and circumstances of
the present case, the amount of fine of Rs.100
crore may be reduced and the view expressed by
Misra, J. to reduce the sentence of appellant Sushil Ansal (A-1) to the period already
undergone considering his advanced age, be also
made applicable to Gopal Ansal (A-2) on the
principle of parity. He submitted that both the
appellants had already undergone substantial part
of the sentence out of sentence of one year
awarded to them and were willing to pay
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10

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Sushil Ansal v. State through CBI [IND-SC]

will stand on the same footing as that of Sushil


Ansal (A1). Thus, we are of the considered opinion

has already undergone. Now, we have been


informed that Appellant Harsarup Panwar (A-15)
has already paid Rs.10 lakh as per operative order
pronounced on 19th August, 2015.
22. The afore-stated fine imposed upon the
appellants in Criminal Appeals Nos. 597, 598 and
599 of 2010 filed by Sushil Ansal (A-1), Gopal
Ansal (A-2) and Harsarup Panwar (A-15) shall be
given by way of a demand draft to the Chief
Secretary of Delhi Government for setting up a
new trauma centre or for upgrading the existing
trauma centres of hospitals managed by the
Government of NCT of Delhi.

that ends of justice would meet if the appellants are


directed to pay fine so that the amount of fine can be
used either for the purpose of setting up a Trauma
Centre in NCT of Delhi or for upgrading Trauma
Centres of Hospitals managed in NCT of Delhi by the
Government of Delhi.

19. We, therefore, direct that a fine of Rs. 30 crore


on each appellant should be imposed and if the said fine
is paid within a period of three months, the sentence of
the appellants be reduced to the sentence already
undergone. We have noted the fact that as

appellant no.1 is fairly aged, it may not be fruitful


to ask him to undergo rigorous imprisonment. On
the ground of parity and on the peculiar facts of
this case, so far as appellant no. 2 may also not be
constrained to undergo the sentence, if he also
pays the same amount of fine. If the afore-stated
amount is not paid within three months from the
date of order dated 19th August, 2015, the
appellants shall undergo two years rigorous
imprisonment, including the sentence already
undergone.

Criminal Appeal Nos. 600-602, 605, 606 & 613 of 2010

23. Consequently, Criminal Appeal Nos. 605, 606


and 613 of 2010 filed by the State and Criminal
Appeal No. 600-602 of 2010 filed by the
Association of Victims of Uphaar Tragedy are
disposed of.
24. In view of the above order, the impugned
judgment stands modified so far as the question
of imposition of sentence is concerned and the
appeals are disposed of as partly allowed.
25. We had passed the operative part of the order
on 19th August, 2015, but since the Court time
was almost over, we have now given the reasons
for the said order.
*****

CRIMINAL APPEAL NO. 599/2010:-

20. As regards the conviction of Appellant H.S.


Panwar (A-15) assailed in Criminal Appeal No.
599/2010, the Learned Judges dismissed the
afore-said appeal and affirmed the conviction u/s.
304-A/337/338 read with S. 36 IPC. On the
question of quantum of sentence qua Appellant
H.S. Panwar (A-15), the matter was placed before
us as stated above.
21. In view of the facts discussed above and on
the ground of parity, we direct that Appellant
Harsarup Panwar (A-15) shall stand sentenced to
undergo rigorous imprisonment for one year.
However, having regard to advanced age and
diseases like alzheimers disease suffered by the
accused and other peculiar facts and
circumstances, if he pays Rs.10 lakh by way of
fine, the sentence will stand reduced to the period
already undergone. If he fails to pay the aforestated amount within three months from the order
dated 19th August, 2015, he shall undergo the
sentence of one year, including the term which he

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11

Law Animated World, 15 October 2015

ISC-134

State of Jammu & Kashmir v. R.K. Zalpuri & Ors. [IND-SC]

(2015) 2 LAW ISC-134

1996, which was unequivocally refuted by him.


The Disciplinary Authority considering the denial
of charges, on 12th November, 1996, appointed an
Inquiry Officer, who after conducting the
enquiry, submitted a report to the Disciplinary
Authority which contained a finding that the
employee had misappropriated a sum of Rs.
2,68,317.00. After the report was submitted, the
Disciplinary Authority issued a show cause notice
on 4th June, 1999, whereby it had proposed to
terminate the services of the employee.
2. The first respondent submitted the reply and
the Disciplinary Authority considering the
explanation passed an order of dismissal on 6th
September, 1999 and he stood dismissed from
that day. The order passed by the State
Government dismissing the employee read as
follows:-

SUPREME COURT OF INDIA


AT NEW DELHI
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos. 8390-8391 of 2015
{arising out of S.L.P. (C) Nos. 11203-11204 of 2014}

Date of Judgment: Thursday, 8 October 2015


State of Jammu & Kashmir
Appellant
Versus
R.K. Zalpuri and others
Respondent(s).
Citation: (2015) 2 LAW ISC-134
CORAM:
DIPAK MISRA, J.
PRAFULLA C. PANT, J.

Whereas the commissioner of Inquiries has


submitted his report to the Government and has
found him guilty of having embezzled Government
money to the tune of Rs. 2,68,317.00 (Rupees two
lacs, sixty eight thousand, three hundred and
seventeen only) besides being responsible for
financial misconduct and complete lack of devotion
to duties.
Whereas, after considering the report of the inquiry
officer the involvement of Shri R.K. Zalpuri,
Senior Assistant, has been established in the
embezzlement of Government money as indicated
above in the office of Resident Commissioner,
J&K, New Delhi.
Whereas after accepting the report of the inquiry
officer and after establishing his involvement, the
Government has decided to take action against Shri
R.K. Zalpuri, Sr. Assistant in terms of clause (viii)
of rule 30 of the J&K (Classification Control and
Appeal) Rules, 1956 which provides dismissal
from service.
Whereas, Shri R.K. Zalpuri was informed about the
decision of the Government vide communication
No. GAD (Admn.) TA 3391-IV dated 04.06.1999
and was called upon under rules to show cause as
to why the proposed action is not taken against
him.
Whereas Shri R.K. Zalpuri has furnished his reply
to the notice served upon him, which has been
considered by the Government and no merit was
found in he same;

***
Short Notes: DELAY AND LACHES CAN BE FATAL:
Overriding the decisions of both the single Judge and the
Division Bench of the High Court of Jammu & Kashmir, the
Apex Court in this case threw out the claims of respondent on
the question of delay and laches in approaching the writ court
for relief, which question was queerly not addressed at both
levels by the High Court, saying the grievance agitated by
the respondent did not deserve to be addressed on merits, for
doctrine of delay and laches had already visited his claim like
the chill of death which does not spare anyone and further
that a writ court while deciding a writ petition is required to
remain alive to the nature of the claim and the unexplained
delay on the part of the writ petitioner. Stale claims are not to
be adjudicated unless non-interference would cause grave
injustice. The present case, needless to emphasize, deserved to be
thrown overboard at the very threshold, for the writ petitioner
accepted the order of dismissal for half a decade and cultivated
the feeling that he could freeze time and forever remain in the
realm of constant present.

***
JUDGMENT
DIPAK MISRA, J.
1. The first respondent was served with a
Memorandum of Charges on 16th September,

Courtesy: Supreme Court of India at http://judis.nic.in/;


emphases in bold ours - IMS.

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12

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State of Jammu & Kashmir v. R.K. Zalpuri & Ors. [IND-SC]

Now, therefore, Shri R.K. Zalpuri, Senior


Assistant, in the office of the Resident
Commissioner, J&K, New Delhi is hereby
dismissed from Government service with
immediate effect in terms of clause VIII of Rule 30
of J&K Civil Service (CCA) Rules, 1956.

ISC-135

Services (Classification, Control & Appeal)


Rules, 1956 and that did tantamount to denial of
reasonable opportunity to the delinquent official,
as has been held by the Constitution Bench in
1
E.C.I.L. v. B. Karunakar . On that singular ground,
he allowed the writ petition and quashed the order
of dismissal.
7. Being grieved by the aforesaid decision, the
State Government preferred Letters Patent
Appeal No. 102 of 2012. In the grounds of the
Letters Patent Appeal, the State had clearly
asserted:-

3. After the said order was passed, the first


respondent did not prefer any departmental
appeal nor did he approach any superior authority
for redressal of his grievance. However, on 18th
February, 2006, he filed a writ petition (S.W.P.
No.352 of 2006) before the High Court
challenging his dismissal from service. Various
assertions were made in the writ petition with
regard to the defects in conducting of the inquiry
including the one that there had been violation of
Rule 34 of the Jammu and Kashmir Civil
Services (Classification, Control & Appeal)
Rules, 1956, for he had not been afforded an
opportunity of hearing in the manner provided in
the said Rules. In the writ petition nothing was
stated what he had done from 1999 to 2006.
4. The State Government filed a counter affidavit
wherein it had raised a preliminary objection
relating to delay and laches. The stand taken by
the State Government in the counter affidavit as
regards the delay and laches is as follows:-

That the learned Single Judge, with great respects,


has not appreciated the specific and important
averment made by the appellants that the
respondent had slept over the matter for quite seven
years and has knocked the door of the Honble
Court after a gap of seven years, thus there was
clear unexplained huge delay and laches in filing
the writ petition, the same was liable to be
dismissed, however, the learned Single Judge
without returning any finding on this vital issue has
allowed the writ petition, therefore, the same is
liable to be set aside on this ground alone.

8. The Division Bench that heard the Letters


Patent Appeal recorded a singular submission on
behalf of the learned counsel for the State which
was to the effect that it had been left without any
remedy to proceed against the delinquent
government servant and, therefore, the order
passed by the Learned Single Judge needed
modification. The Division Bench dealing with
the said submission opined thus:-

That, the writ petition instituted by the petitioner


is liable to be dismissed at its threshold, inasmuch
as the same is suffering from inordinate and
unexplainable delay and latches. By virtue of the
writ petition instituted in the year 2006, the
petitioner has come to the court to challenge an
order passed by the answering respondents way
back on 06.09.1999. It is submitted that pursuant to
the issuance of order impugned, the petitioner
chose to sleep over the matter and acquiesced
whatever rights assumed to be available to him.

Learned Single Judge has quashed Respondents


dismissal from Government service on the ground
that copy of the proceedings prepared under Rule
33 was not supplied to the Respondent before
passing final orders on the provisional conclusion
reached at on the basis of the inquiry to show cause
as to why the proposed penalty be not imposed on
him. Although the Appellants dismissal was set
aside by the Court finding non-compliance of the
provisions of the Rule 34 of the Jammu and
Kashmir Civil Service (Classification, Control and
Appeal) Rules, 1956, yet it cannot be said that the
Appellants have been left without any remedy to

5. After putting forth the submission with regard


to the delay and laches, the State Government
defended its action by asseverating many an
aspect, which need not be adverted to.
6. The learned Single Judge vide order dated 14th
May, 2010, opined that the show cause notice
issued to the employee was not accompanied with
the copies of the proceedings as envisaged under
Rule 34 of the Jammu and Kashmir Civil

13

AIR 1994 SC 1074


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State of Jammu & Kashmir v. R.K. Zalpuri & Ors. [IND-SC]

proceed against the delinquent employee on


complying with the requirement of Rule 34. The
Learned State counsels contention that the
Appellants have been left without any remedy to
proceed against the respondent may not, therefore,
be a correct proposition of law. However, to set the
records straight and allay the State Governments
apprehension that they were without any remedy,
we dispose of this appeal by providing that quashing of

that the plea pertaining to delay and laches had


not been considered, but the review application, as
we find from the record, was dismissed on the
ground that the review could not be treated like an
appeal in disguise.

13. Learned counsel for the appellant-State would


contend that when a categorical stand was taken
in the counter affidavit and a specific stance had
been put forth in the intra-Court appeal as is
manifest from the record, the High Court should
have taken into consideration the same and not
recorded a finding on a ground which was not
taken in the grounds of appeal.
14. Learned counsel for the respondent-employee,
per contra, would contend that the delay and
laches cannot alone defeat the cause of justice
and in any case, when substantial justice has been
done this Court should not interfere in exercise of
jurisdiction under Article 136 of the Constitution
of India.
15. We have noted that the High Court has
rejected the application for review on the ground
that it cannot sit in appeal and the parameters of
review are not attracted. In this context, we may
refer to the Constitution Bench judgment in

Respondents dismissal will not operate as impediment


for the Appellants to proceed against the Respondent for
his misconduct after complying with the requirement of
Rule 34 of the Jammu and Kashmir Civil Services
(Classification, Control and Appeal) Rules, 1956.

9. It is apt to note here that an application for


review being Review (LPA) No.03 of 2012 was
filed wherein a stand was taken pertaining to
delay which we think should be reproduced. It
reads as under:The appellants filed detailed reply to the
maintainability of the said writ petition. In the
objection, it was specifically pleaded before the
writ court that the Respondent had slept over the
matter and the writ petition is suffering from
inordinate and unexplained delay and laches,
therefore, the writ petition filed in the year 2006
against the order passed way back in 1999 is liable
to be dismissed.

10. The Division Bench considered the application


for review and ultimately dismissed the same on
the ground that there was no palpable error
warranting review of the order. The principal
order and the order passed in the review are the
subject matters of assail in the present appeals.
11. We have heard Mr. Sunil Fernandes, learned
counsel for the appellant-State and Mr. Gagan
Gupta, learned counsel for the first respondent.
12. On a perusal of the factual exposition, it is
quite vivid that the first respondent was dismissed
from service on 6th September, 1999, and he
preferred the writ petition on 18th February, 2006,
after a lapse of almost five and a half years. The
plea relating to delay was specifically taken in the
counter affidavit as a preliminary objection, but
the learned Single Judge chose not to address the
same. The appellate-Bench has noted the
submission and modified the order and an
application for review was filed with the stand
Law Animated World, 15 October 2015

(2015) 2 LAW

Shivdeo Singh and Others v. State of Punjab and


2
Others , wherein it has been observed that nothing
in Article 226 of the Constitution precludes a High
Court from exercising the power of review which
inheres in every court of plenary jurisdiction to prevent
miscarriage of justice or to correct grave palpable
errors committed by it.

16. In this regard, reference to Aribam Tuleshwar


3
Sharma v. Aribam Pishak Sharma and Others ,
would also be apt. In the said case, it has been
held thus:It is true as observed by this Court in Shivdeo
Singh v. State of Punjab, there is nothing in Article
226 of the Constitution to preclude a High Court
from exercising the power of review which inheres
in every court of plenary jurisdiction to prevent
miscarriage of justice or to correct grave and
palpable errors committed by it. But, there are
2
3

14

AIR 1963 SC 1909


(1979) 4 SCC 389

(2015) 2 LAW

State of Jammu & Kashmir v. R.K. Zalpuri & Ors. [IND-SC]

definitive limits to the exercise of the power of


review. The power of review may be exercised to the

present case, there was a manifest error by the


High Court, for it had really not taken note of the
stand and stance that was eloquently put by the
State as regards the delay and laches. The

discovery of new and important matter or evidence


which, after the exercise of due diligence was not within
the knowledge of the person seeking the review or could
not be produced by him at the time when the order was
made; it may be exercised where some mistake or error
apparent on the face of the record is found; it may also
be exercised on any analogous ground. But, it may not
be exercised on the ground that the decision was
erroneous on merits. That would be the province of a
court of appeal. A power of review is not to be
confused with appellate powers which may enable an

averments in the writ petition were absolutely silent and


nothing had been spelt out why the delay had occurred.

The Single Judge, as stated earlier had chosen not


to address the said issue. The Division Bench in
appeal addressed the submission, totally being
oblivious of the ground pertaining to delay and
laches clearly stated in the memorandum of
appeal, and modified the order passed by the
Learned Single Judge as if that was the sole
submission. It needs no special emphasis to state
that in the obtaining factual matrix, the
application for review did not require delving
deep into the factual matrix to find out the error.
It was not an exercise of an appellate jurisdiction
as is understood in law. It can be stated with
certitude that it was a palpable error, for the
principal stand of the State was not addressed to
and definitely it had immense significance and
hence, the same deserved to be addressed to.
Therefore, we are compelled to think that the

appellate Court to correct all manner or errors


committed by the subordinate Court.

17. In M/s. Thungabhadra Industries Ltd. v. The


Government of Andhra Pradesh represented by the
4
Deputy Commissioner of Commercial Taxes , this
Court while discussing about the concept of
review, has ruled that:a review is by no means an appeal in disguise whereby
an erroneous decision is reheard and corrected, but lies
only for patent error. We do not consider that this

furnishes a suitable occasion for dealing with this


difference exhaustively or in any great detail, but it
would suffice for us to say that where without any
elaborate argument one could point to the error and
say here is a substantial point of law which stares
one in the face, and there could reasonably be no
two opinions, entertained about it, a clear case of
error apparent on the face of the record would be
made out.

order required review for the purpose of consideration


of the impact of delay and laches in preferring the writ
petition. Be that as it may, we shall proceed to

deal with the repercussions of delay and laches,


as we are of the considered opinion that the same
deserves to be addressed to in the present case.
20. Having stated thus, it is useful to refer to a
passage from City and Industrial Development

18. Almost fifty-five years back, in Satyanarayan


Laxminarayan Hegde v. Mallikarjun Bhavanappa
5
Tirumale , it was laid down that:an error which has to be established by a longdrawn process of reasoning on points where there
may conceivably be two opinions can hardly be
said to be an error apparent on the face of the
record. Where an alleged error is far from selfevident and if it can be established, it has to be
established by lengthy and complicated arguments
and such an error cannot be cured by a writ of
certiorari according to the rule governing the
powers of the superior court to issue such a writ.

Corporation v. Dosu Aardeshir Bhiwandiwala and


6
Others , wherein this Court while dwelling upon

jurisdiction under Article 226 of the Constitution,


has expressed thus:The Court while exercising its jurisdiction under
Article 226 is duty-bound to consider whether:
(a) adjudication of writ petition involves any
complex and disputed questions of facts and
whether they can be satisfactorily resolved;
(b) the petition reveals all material facts;
(c) the petitioner has any alternative or effective
remedy for the resolution of the dispute;

19. We have referred to the aforesaid authorities


as we are of the convinced opinion that in the
4
5

ISC-137

AIR 1964 SC 1372


AIR 1960 SC 137

15

(2009) 1 SCC 168


Law Animated World, 15 October 2015

ISC-138

State of Jammu & Kashmir v. R.K. Zalpuri & Ors. [IND-SC]

(d) person invoking the jurisdiction is guilty of


unexplained delay and laches;
(e) ex facie barred by any laws of limitation;
(f) grant of relief is against public policy or
barred by any valid law; and host of other
factors.

19. Power of the High Court to be exercised under


Article 226 of the Constitution, if is discretionary, its
exercise must be judicious and reasonable, admits of no
controversy. It is for that reason, a persons
entitlement for relief from a High Court under
Article 226 of the Constitution, be it against the
State or anybody else, even if is founded on the
allegation of infringement of his legal right, has to
necessarily depend upon unblameworthy conduct
of the person seeking relief, and the court refuses to

21. In this regard reference to a passage from


Karnataka Power Corpn. Ltd Through its Chairman
& Managing Director & Anr v. K. Thangappan and
7
Anr would be apposite:Delay or laches is one of the factors which is to be

grant the discretionary relief to such person in exercise


of such power, when he approaches it with unclean
hands or blameworthy conduct.

borne in mind by the High Court when they exercise


their discretionary powers under Article 226 of the
Constitution. In an appropriate case the High Court

23. Recently in Chennai Metropolitan Water Supply


10
and Sewerage Board & Ors. Vs. T.T. Murali Babu ,
it has been ruled thus:

may refuse to invoke its extraordinary powers if


there is such negligence or omission on the part of the
applicant to assert his right as taken in conjunction
with the lapse of time and other circumstances,
causes prejudice to the opposite party.

Thus, the doctrine of delay and laches should not be


lightly brushed aside. A writ court is required to
weigh the explanation offered and the
acceptability of the same. The court should bear in

After so stating the Court after referring to the


authority in State of M.P. v. Nandalal Jaiswal8 restated
the principle articulated in earlier pronouncements,
which is to the following effect:-

mind that it is exercising an extraordinary and equitable


jurisdiction. As a constitutional court it has a duty

to protect the rights of the citizens but


simultaneously it is to keep itself alive to the primary

the High Court in exercise of its discretion does not


ordinarily assist the tardy and the indolent or the
acquiescent and the lethargic. If there is inordinate delay
on the part of the petitioner and such delay is not
satisfactorily explained, the High Court may decline to
intervene and grant relief in exercise of its writ
jurisdiction. It was stated that this rule is premised

principle that when an aggrieved person, without


adequate reason, approaches the court at his own leisure
or pleasure, the court would be under legal obligation to
scrutinise whether the lis at a belated stage should be
entertained or not. Be it noted, delay comes in the way
of equity. In certain circumstances delay and

laches may not be fatal but in most


circumstances inordinate delay would only invite
disaster for the litigant who knocks at the doors
of the court. Delay reflects inactivity and
inaction on the part of a litigant a litigant who
has forgotten the basic norms, namely,
procrastination is the greatest thief of time and
second, law does not permit one to sleep and rise like a
phoenix. Delay does bring in hazard and causes injury
to the lis.

on a number of factors. The High Court does not


ordinarily permit a belated resort to the
extraordinary remedy because it is likely to cause
confusion and public inconvenience and bring, in
its train new injustices, and if writ jurisdiction is
exercised after unreasonable delay, it may have the
effect of inflicting not only hardship and
inconvenience but also injustice on third parties. It
was pointed out that when writ jurisdiction is
invoked, unexplained delay coupled with the
creation of third-party rights in the meantime is an
important factor which also weighs with the High
Court in deciding whether or not to exercise such
jurisdiction.

24. At this juncture, we are obliged to state that


the question of delay and laches in all kinds of
cases would not curb or curtail the power of writ
court to exercise the discretion. In Tukaram Kana

22. In State of Maharashtra v. Digambar9 a threejudge bench laid down that:-

Joshi & Ors. v. Maharashtra Industrial Development


11
Corporation & Ors. it has been ruled that:-

(2006) 4 SCC 322


(1986) 4 SCC 566
9
(1995) 4 SCC 683

10

Law Animated World, 15 October 2015

(2015) 2 LAW

11

16

(2014) 4 SCC 108


(2013) 1 SCC 353

(2015) 2 LAW

State of Jammu & Kashmir v. R.K. Zalpuri & Ors. [IND-SC]

Delay and laches is adopted as a mode of


discretion to decline exercise of jurisdiction to
grant relief. There is another facet. The Court is
required to exercise judicial discretion. The said
discretion is dependent on facts and circumstances
of the cases. Delay and laches is one of the facets to
deny exercise of discretion. It is not an absolute
impediment. There can be mitigating factors, continuity
of cause action, etc. That apart, if the whole thing

ISC-139

This court granted relief reversing the decision of


the High Court which had dismissed the writ
petition on the ground of delay and non-availability
of certain documents. Therefore, it is clear that the
principle of delay and laches would not affect the grant of
relief in all types of cases.

26. In the case at hand, the employee was dismissed


from service in the year 1999, but he chose not to
avail any departmental remedy. He woke up from
his slumber to knock at the doors of the High Court
after a lapse of five years. The staleness of the claim

shocks the judicial conscience, then the Court should


exercise the discretion more so, when no third-party
interest is involved. Thus analysed, the petition is not
hit by the doctrine of delay and laches as the same is not
a constitutional limitation, the cause of action is
continuous and further the situation certainly shocks
judicial conscience.

remained stale and it could not have been allowed to rise

like a phoenix by the writ court.

27. The grievance agitated by the respondent did


not deserve to be addressed on merits, for doctrine
of delay and laches had already visited his claim
like the chill of death which does not spare anyone
even the one who fosters the idea and nurtures the
attitude that he can sleep to avoid death and
eventually proclaim Deo gratias - thanks to God.
28. Another aspect needs to be stated. A writ court
while deciding a writ petition is required to remain
alive to the nature of the claim and the unexplained
delay on the part of the writ petitioner. Stale claims
are not to be adjudicated unless non-interference
would cause grave injustice. The present case, need
less to emphasise, did not justify adjudication. It
deserved to be thrown overboard at the very
threshold, for the writ petitioner had accepted the
order of dismissal for half a decade and cultivated
the feeling that he could freeze time and forever
remain in the realm of constant present.
29. In view of our aforesaid analysis the appeals
are allowed and the judgment and orders passed
by the High Court are set aside. There shall be no
order as to costs.

And again:No hard-and-fast rule can be laid down as to when


the High Court should refuse to exercise its
jurisdiction in favour of a party who moves it after
considerable delay and is otherwise guilty of
laches. Discretion must be exercised judiciously and
reasonably. In the event that the claim made by the
applicant is legally sustainable, delay should be
condoned. In other words, where circumstances
justifying the conduct exist, the illegality which is
manifest, cannot be sustained on the sole ground of
laches. When substantial justice and technical
considerations are pitted against each other, the cause of
substantial justice deserves to be preferred, for the other
side cannot claim to have a vested right in the injustice
being done, because of a non-deliberate delay. The court

should not harm innocent parties if their rights have


in fact emerged by delay on the part of the
petitioners. (Vide Durga Prashad v. Chief Controller of
Imports and Exports12, Collector (LA) v. Katiji13, Dehri
Rohtas Light Railway Co. Ltd. v. District Board,
Bhojpur14, Dayal Singh v. Union of India15 and Shankara
Coop. Housing Society Ltd. v. M. Prabhakar16).

25. Be it stated, in the said case the appellants were


deprived of the legitimate dues for decades and the
Maharashtra Industrial Development Corporation
had handed over the possession of the property
belonging to the appellant to the City Industrial
Development Corporation of Maharashtra without
any kind of acquisition and grant of compensation.

*****

12

(1969) 1 SCC 185


(1987) 2 SCC 107
14
(1992) 2 SCC 598
15
(2003) 2 SCC 593
16
(2011) 5 SCC 607
13

17

An uncharitable remark. There can, and will, in general,


be several unexplained reasons for an employee not to be
able to raise a lis at a right time and even get resigned to
his fate only to be woken up late by some sagacious
counsel that an injustice should not be let continue like
that because of such resignation mood. I am not saying
this in the context of the particular circumstances of this
case. The Court ought to take a compassionate view of
the woes and predicament of the employees. - IMS.
Law Animated World, 15 October 2015

ISC-140

State Bank of Hyderabad v. RABO Bank [IND-SC]

2. This appeal has been directed against the


Judgment and Decree dated 9th October, 2014
passed by the Division Bench of the High Court
of Judicature at Bombay in Appeal No. 415 of
2014 arising out of Summons for Judgment No.
238 of 2008 in Summary Suit No. 1586 of 2001.
By the said judgment, which is impugned herein,
the Division Bench of the High Court dismissed
the appeal preferred by the appellant/defendant
thereby upholding the Judgment of the learned
Single Judge.
3. In order to adjudicate the controversy between
the parties, at the outset it is necessary to cull out
the facts of the case to the extent of deciding the
dispute before us.
4. The respondent/plaintiff is a banking institution
located in Singapore and on behalf of its
constituent namely M/S Gloland (FarEast) Pte.
Ltd., the respondent/plaintiff carried on business
dealings with the appellant/defendant. The
constituent of the respondent is engaged in the
business of export of Chick Peas and it shipped a
consignment to its Indian clients, namely, M/S
Kothari Global Ltd. and M/S Marudhar Edible
Oils Ltd., while handing over three sets of
relevant documents dated 4.2.1998, 24.2.1998
and 13.7.1998 to the respondent/plaintiff for
collecting the payment totaling US $ 8,19,199.35
from its Indian clients. The respondent/plaintiff in
turn forwarded those documents to the appellant/
defendant on the condition of releasing them to
the Indian clients of its constituent against
payment. It appears that the appellant/ defendant
did not receive payment from the clients of the
respondent and hence did not release the
documents to them.
5. While the things stood so, on 9th September,
1998 the respondent/plaintiff sent a fax message
to the appellant Bank enquiring whether they
would accept Bills of Exchange (Drafts) payable
after 170 days, to which the appellant Bank
conveyed its acceptance. Accordingly, the
respondent sent four Bills of Exchange, all dated
9th September, 1998 in favour of the appellant
Bank for an amount of US $ 8,19,198.75. Again

(2015) 2 LAW ISC-140

SUPREME COURT OF INDIA


AT NEW DELHI
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 8194 of 2015
{arising out of S.L.P. (civil) No. 33549 of 2014}

Date of Judgment: Thursday, 1 October 2015


State Bank of Hyderabad
Appellant
Versus
RABO Bank
Respondent(s)
Citation: (2015) 2 LAW ISC-140
CORAM:
RANJAN GOGOI, J.
N.V. RAMANA, J.
***
Short Notes: For triable issues, leave to defend mandatory:
Setting aside the judgments of the Courts below, including
that of a division bench of the Bombay High Court, Sri Justice
N.V. Ramana has ruled that where triable issues exist, leave to
defend shall have to be granted to the defendant and Order 37
of the Civil Procedure Code on Summary Procedure does not
bar it as only in the cases where the defence set up is illusory
or sham or practically moonshine, the plaintiff is entitled to
leave to sign judgment (para 17). In this case, the defendant/
appellant has made out a prima facie case of triable issues in
the Suit which needs to be adjudicated and hence is entitled
to grant of unconditional leave to defend the Suit (para 22). It
was clarified that this Court need not to go in detail in
respect of these issues when we have come to an irresistible
conclusion that the appellant/defendant is entitled to defend
the Suit (para 23). Accordingly, the appeal is allowed by setting
aside the judgment and decree passed by the Courts below,
and the appellant/defendant is granted unconditional leave to
defend the Summons for Judgment in Summary Suit No. 1586
of 2001 (para 24).

***
JUDGMENT
N.V. RAMANA, J.
1. Leave granted.

Courtesy: Supreme Court of India at http://judis.nic.in/;


emphases in bold ours - IMS.

Law Animated World, 15 October 2015

(2015) 2 LAW

18

(2015) 2 LAW

State Bank of Hyderabad v. RABO Bank [IND-SC]

on 21st September, 1998, the respondent sent


another set of documents together with Bills of
Exchange to the appellant Bank for the amount of
US $ 11,12,428.54 for collection from the Indian
clients of constituent of the respondent. The
collection tenor was specified as 170 days after
the date of Draft (Bill of Exchange). The
respondent by a Telex message dated 23rd
October, 1998 instructed the appellant Bank to
deposit the payment against Bills of Exchange
totaling US $ 19,31,627.89 into their New York
Correspondent Bank viz., Bankers Trust
Company on the due date of 27th February, 1999.

ISC-141

way of special leave. On 15th December, 2014,


this Court while issuing notice, stayed operation
of the impugned order of the High Court.
8. Mr. Mukul Rohtagi, learned Attorney General
for India, arguing on behalf of the appellant Bank
submitted that the Single Judge as well as the
Division Bench of the High Court were not
justified in fixing the liability upon the appellant
Bank. In the absence of an opportunity to the
appellant Bank to defend its case and file written
statement in such a case where a huge amount of
US $ 19,31,627.89 is involved, the decision of the
High Court cannot be appreciated to be a correct
one. While assailing the judgment of the High
Court, learned Attorney General submitted that
the respondent/plaintiff has no valid legal reason
to institute the Suit under Order 37, CPC. The
Suit does not qualify the test of Order 37
1(ii)(b)(i) as there was no specific averment with
respect to a written contract and the averment
so pleaded by the plaintiff/respondent is with
respect to an agreement. There was no
consideration to the appellant Bank and merely
the telex/fax messages do not constitute a written
contract between the parties. The instruments in
question (Bills of Exchange) did not bear the
acceptance on behalf of the appellant Bank.
The provisions of Negotiable Instruments Act
mandate that the acceptance shall be given by
the drawee/acceptor by signing his assent on the
face of the Bill of Exchange. However, in the
present case, no such endorsement of acceptance
is present on behalf of the appellant Bank, nor
any document was appended giving acceptance.
Merely the telex/fax messages, purportedly issued
on behalf of the appellant Bank, cannot give rise
to the claim advanced by the plaintiff/respondent.
In such a situation, the enforcement is clear
violation of public policy envisaged under
Section 23 of the Contract Act. The Head Office
of the appellant-Bank has already instructed all
its Branches to prohibit even co-acceptance of
Bills or purchase/discounting of Bills accepted by
other Banks, unless otherwise a specific written
confirmation is made by the respective
controlling office of the Bank. The telex/fax

6. When the appellant Bank did not remit the


amount even after the expiry of due date, the
respondent/plaintiff on 9th March, 1999 sent a
Telex message to the appellant/defendant to remit
the proceeds along with interest @ 9.75% for the
late payment. It appears that on the same day, the
appellant Bank replied to the respondent denying
its liability on the ground that the manner and
mode in which the transactions took place was
not in ordinary course of business and the
acceptance given by its Kolkata Branch at Burra
Bazar appears to be in total disregard to the
prevailing procedure in Banks. It has also been
informed to the respondent that the matter has
been entrusted to the Central Bureau of
Investigation (CBI). This was followed by various
correspondences exchanged between the parties
alleging and denying the liability till 31st March,
2001 on which date the respondent filed Summary
Suit No. 1586 of 2001 before the High Court.
7. The learned Trial Judge fixed the liability on
the appellant/defendant and made absolute the
summons for judgment awarding interest @
9.75% p.a. w.e.f. 27th February, 1999 i.e. the
maturity date of Bills of Exchange, till realization
of principal amount. Aggrieved thereby, the
defendant/appellant filed an intra-Court appeal
before the High Court which came to be
dismissed by the Division Bench upholding the
order of the learned Single Judge. Not satisfied
with the Judgment of the High Court, the
appellant/defendant filed the appeal on hand by
19

Law Animated World, 15 October 2015

ISC-142

State Bank of Hyderabad v. RABO Bank [IND-SC]

senior counsel finally submitted that there is no


error apparent in the judgments of the Courts
below and the appeal deserves to be dismissed.
10. Having heard learned counsel for the parties,
the short question that falls for our consideration is

messages, on which the respondent has been


relying on, were not issued with the authority of
the appellant Bank. It was purely an act of
mischief by certain persons representing the
clients of the constituent of the respondent done
with connivance of some officers of the
appellant-Bank, and the High Court ought to have
appreciated this fact. Learned Attorney General
drawing our attention to an affidavit filed by the
defendant/appellant seeking leave to defend the
Summary Suit enumerating the factual aspects of
the case, submitted that the learned Single Judge,
ignoring the case of the defendant, decreed the
Suit making Summons for Judgment absolute.
The Division Bench of the High Court also
committed a grave error in not appreciating the
legal requirements in their true perspective and
hence the judgments of the Courts below are
liable to be set aside.
9. Learned senior counsel appearing for the
respondent/plaintiff, on the other hand, supported
the Judgment of the Courts below and submitted
that the respondent/plaintiff has made the
payment to the exporter M/S Gloland (Far East)
Pte. Ltd. only after the representation of the
appellant/defendant to accept the Bills of
Exchange. The conduct of the appellant Bank in
not fulfilling its obligation, on a bald allegation of
fraud made by its officials acting beyond their
authority, is not in the interest of justice.
International banking activities operate on
implicit faith and trust between the parties and
escaping from the responsibility showing a
truncated reason of internal fraud, cannot be
sustained. Even the reason of internal fraud as
shown by the appellant Bank is not strongly
based, because the tested telexes sent by the
senior officials of the appellant Bank ensure their
authenticity and leads to the presumption that the
message was sent under the authority of the
Bank. The appellant Bank, in fact, had obtained
letters of indemnity on stamp paper duly signed
by the authorized signatory of the Indian clients
of the respondents constituent, thereby
indemnifying the appellant Bank in respect of coacceptance for the tested telex messages. Learned
Law Animated World, 15 October 2015

(2015) 2 LAW

whether the Courts below were right in decreeing the


Summary Suit without granting the relief of leave to
defend to the defendant/appellant as envisaged under
Order 37 Rule 3 C.P.C.?

11. We think that for the adjudication of the said


question, it is appropriate first to examine the
affidavit filed by the appellant Bank seeking
leave to defend, after receiving Summons for
Judgment. In the said affidavit, it is categorically
mentioned that the Suit in question is not
maintainable to be a Summary Suit as per law.
Paras 5 to 8 of the affidavit filed by the Branch
Manager and the Principal Officer of the
Defendant/appellant, reads thus:
5) I say that the plaintiff has filed the present
suit in March, 2001 praying for various reliefs as
set out therein. The plaintiff thereafter preferred
the Summons for Judgment in the same in the
month of June, 2001 being the Summons for
Judgment No. 1305 of 2001. I crave leave to
refer to and rely upon the records and
proceedings in respect to the said Summons for
Judgment as and when produced.
6) The plaintiff thereafter withdrew the said
summons for judgment on 24th February, 2003
with the liberty. The plaintiff has failed in taking
out the proceedings for amendment of the said
summary suit. The plaintiff took out the
Chamber Summons No. 576 of 2007 in April
2007, praying of the various amendments to the
summary suit. Thus, the said Chamber Summons
was taken out after a lapse of four years, when
the plaintiff had preferred the summons for
judgment in the said suit. This clearly shows that
the plaintiff has failed and neglected in
prosecuting his rights under the said suit and
there is a deliberate delay on the part of the
plaintiff in taking out the chamber summons for
the amendment of the said plaint.
7) I say that the present suit is not maintainable
as a Summary Suit. The present suit is filed by
the plaintiff in respect to various Bills of
Exchange alleged to have been accepted by the
20

(2015) 2 LAW

State Bank of Hyderabad v. RABO Bank [IND-SC]

Defendant. I say that the drawee is required to


sign his assent on the Bill of Exchange itself and
not on any other part of the instrument/document
as per the provisions of the Negotiable
Instrument Act and as per the practice followed
by Banks. Further, the alleged Bills/Suit
documents including Bills are not admissible as
they are not stamped as per the provisions of the
Stamp Act. If the drawee puts his signature on
any other paper than the Bill of Exchange, it
would not be construed as acceptance under the
provisions of the Negotiable Instruments Act.
8) In the present case, admittedly the drawee has
not affixed his signature, showing the coacceptance of the Bills, on the Bills. Hence the
alleged acceptance of the Bills of Exchange by
the defendant as well as the drawee is not proper
and the said Bills of Exchange cannot be said to
be duly accepted by the defendant as well as the
drawee.

ISC-143

assent should be affixed on the face of the Bill of


Exchange itself under the provisions of the
Negotiable Instrument Act and all Banks follow
the same principle. Besides, the Bills are not
stamped following the principles of Stamp Act.
13. We have further noticed in the affidavit that
the defendant has levelled an allegation that
drawer and drawee of the Bills had perpetrated
fraud on the defendant with the collusion of some
officials of the plaintiff Bank and the CBI inquiry
on this issue is also pending. Pertinently, the
Reserve Bank of India has also been informed on
this matter reporting that a fraud had taken place.
It is also important to note the strong allegation
raised in the affidavit that besides the Suit being
barred by limitation, the persons who signed the
plaint were not authorized or empowered to file
the Suit.
14. Another glaring aspect in the case is that the
Division Bench of the High Court in its order
categorically mentioned that the appellant/
defendant has not actually endorsed its
acceptance on the Bills of Exchange. In spite of
recording such a finding, the High Court held that
the appellant/defendant has agreed to pay the
amount due even de hors the Bills of Exchange,
which is sufficient to grant a decree in favour of
the respondent/plaintiff.

12. Thus, the appellant/defendant by way of the


aforementioned affidavit took the plea that the
contract between the parties was not a concluded
contract and the Suit in question is barred by
limitation. Prior to the present Suit, the plaintiff/
respondent had earlier in the year 2001 filed
another Suit preferring Summons for Judgment,
but withdrew the same in the year 2003. Only
after taking out the Chamber Summons seeking
various amendments after a lapse of four years in
the year 2007 the plaintiff/respondent preferred
the Summons for Judgment in the Suit in
question, with an intention of deliberately
delaying the process of law. Such a vast delay of
about four years clearly indicates the negligence
on the part of the plaintiff in prosecuting its rights
and again initiating the proceedings after a lapse
of four years time is clear abuse of law. Further
plea taken by the defendant/appellant is that the
Suit is not at all maintainable merely for the
reason that there is no signature giving assent by
the drawee on the face of Bills nor there the
signature of the defendant giving co-acceptance.
In addition, the stamping on the Bills was also not
done as per the requirements of law. A clear stand
has been taken by the defendant/appellant in the
affidavit that the signature of the drawee giving

15. As regards the entitlement of a defendant to


the grant of leave to defend, the law is well
settled long back in the year 1949 in Sm.
Kiranmoyee Dassi v. Dr. J. Chatterjee, AIR 1949
Cal 479, in the form of the following
propositions:
(1) If the defendant satisfies the Court that he has
a good defence to the claim on its merits, the
plaintiff is not entitled to leave to sign the
judgment and the defendant is entitled to
unconditional leave to defend.
(2) If the defendant raised a triable issue
indicating that he has a fair or bona fide or
reasonable defence although not a positively
good defence the plaintiff is not entitled to
sign judgment and the defendant is entitled to
unconditional leave to defend.
21

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State Bank of Hyderabad v. RABO Bank [IND-SC]

(3) If the defendant discloses such facts as may


be deemed sufficient to entitle him to defend,
that is to say, although the affidavit does not
positively and immediately make it clear that
he has a defence, yet, shows such a stage of
facts as leads to the inference that at the trial
of the action he may be able to establish a
defence to the plaintiff`s claim, the plaintiff
is not entitled to judgment and the defendant
is entitled to leave to defend but in such a
case the court may in its discretion impose
conditions as to the time or mode of trial but
not as to payment into court or furnishing
security.
(4) If the defendant has no defence or the
defence set up is illusory or sham or
practically moonshine then ordinarily the
plaintiff is entitled to leave to sign judgment
and the defendant is not entitled to leave to
defend.
(5) If the defendant has no defence or the
defence is illusory or sham or practically
moonshine then although ordinarily the
plaintiff is entitled to leave to sign judgment,
the court may protect the plaintiff by only
allowing the defence to proceed if the
amount claimed is paid into court or
otherwise secured and give leave to the
defendant on such condition, and thereby
show mercy to the defendant by enabling
him to try to prove a defence.

set up is illusory or sham or practically moonshine, the


plaintiff is entitled to leave to sign judgment.

18. Insofar as the question of maintainability of


the Suit in question under Order 37, CPC is
concerned, this Court has in Neebha Kapoori v.
Jayantilal Khandwala, 2008 (3) SCC 770, observed
that where the applicability of Order 37 itself is in
question, grant of leave to defend may be
permissible. The Court before passing a decree is
entitled to take into consideration the
consequences therefor. The Courts dealing with
summary trials should act very carefully taking
note of the interests of both the parties. Merely on
the ground that the defendant may resort to
prolonged litigation by putting forth untenable
and frivolous defences, grant of leave to defend
cannot be declined. At the same time, the Court
must ensure that the defendant raises a real issue
and not a sham one. The Court cannot reject the
defence on the ground of implausibility or inconsistency.
Before recording a finding of granting leave to
defend, the Court should assess the facts and
come to the conclusion that if the facts alleged by
the defendant in the affidavit are established,
there would be a good or even a plausible defence
on those facts.
19. Although the affidavit does not positively and
immediately make it clear that he had a defence,
yet, it shows such a state of facts leading to the
inference that at the trial of the action, the
defendant may be able to establish a defence to
the plaintiff`s claim the plaintiff is not entitled to
judgment and the defendant is entitled to leave to
defend but in such a case the Court may in its
discretion impose conditions as to the time or
mode of trial but not as to payment into Court or
furnishing security [See : T. Sukhender Reddy v. M.

16. It is also noticed that the law as enunciated


above, has been followed by the Courts in several
cases [See also: Santosh Kumar v. Bhai Mool Singh,
AIR 1958 SC 321, Milkhiram (India) (P) Ltd. v.
Chamanlal Bros, AIR 1965 SC 1698, Mechelec Engineers
& Manufacturers v. Basic Equipment Corpn., (1976) 4
SCC 687 and Sunil Enterprises & Anr. v. SBI Commercial
& International Bank Ltd. (1998) 5 SCC 354].

17. An analysis of the above principles makes it

Surender Reddy, 1998 (3) ALD 659].

clear that in cases where the defendant has raised a


triable issue or a reasonable defence, the defendant is
entitled to unconditional leave to defend. Leave is

20. We are in total agreement with the view taken


by this Court in Raj Duggal v. Ramesh Kumar
Bansal, 1991 Suppl.(1) SCC 191, that leave to
defend the Summons for Judgment shall always
be granted to the defendant when there is a triable
issue as to the meaning or correctness of the
documents on which the claim is based or the

granted to defend even in cases where the


defendant upon disclosing a fact, though lacks the
defence but makes a positive impression that at
the trial the defence would be established to the
plaintiffs claim. Only in the cases where the defence
Law Animated World, 15 October 2015

(2015) 2 LAW

22

(2015) 2 LAW

ISC-145

State Bank of Hyderabad v. RABO Bank [IND-SC]

contention advanced on behalf of the


respondent/plaintiff that the mere denial of
liability by the appellant Bank saying that the
Officer in charge of the Foreign Exchange
Department of the appellant Bank was not
authorized to give co-acceptance to the Bills and
thereby alleging a fraud by the officials cannot be
sustained as those are the internal affairs of the
defendant Bank for which the plaintiff/respondent
cannot be penalized and the international trade
practices and banking regulations have to be
respected, this Court need not to go in detail in respect

alleged facts are of such nature which entitle the


defendant to interrogate or cross-examine the
plaintiff or his witnesses.
21. In the case on hand, we have perused the
material on record including the FIR dated 9th
August, 1999 registered by the CBI at the
instance of Chief Vigilance Officer, SBH and
also the Charge Sheet filed by the CBI. The
charge sheet indicated the involvement of Mr.
Sudhir Behra, Chief Manager of the appellant
Bank at Burra Bazar Branch, Calcutta. Acting at
the requests of representatives from the Indian
clients of the respondents constituent, the Chief
Manager had induced some officers of the
appellant Bank who were In-charge of Foreign
Exchange Department to issue tested telex
messages of co-acceptance. The charge sheet
further alleges that these officers were not
authorized to issue such co-acceptances and the
motive behind their illegal and unauthorized
action was to enable the constituent of the
respondent to get their bills discounted by
jeopardizing the interests of the appellant Bank. It
is also on record that the trial of the said case was
at the stage of evidence as on 13 November 2014.
22. Apart from these, the substantial revelations
of the defendant (appellant) in the affidavit
coupled with the views expressed by the Division
Bench of the High Court makes it clear that there

of these issues when we have come to an irresistible


conclusion that the appellant/defendant is entitled to
defend the Suit. Hence, we are reluctant to give

findings on any of these issues which may


adversely affect the trial of the Suit.
24. Accordingly, we allow the appeal by setting aside
the judgment and decree passed by the Courts below.
The appellant/defendant is granted unconditional leave
to defend the Summons for Judgment in Summary Suit
No. 1586 of 2001. The learned Single Judge of the

High Court has to deal all the issues raised by the


parties afresh and any observation made by this
Court while dealing with this appeal should not
be construed as an expression of this Court. There
shall, however, be no order as to costs.
*****
AN APPEAL
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are certain triable issues for adjudication and the


defendant/appellant is entitled to defend the Suit. The

appellate side of the High Court ought to have


taken into consideration the factual matrix of the
case before recording its finding. Taking into
consideration the totality of the facts and
circumstances of the case, we are of the opinion
that the defendant/appellant has made out a prima facie

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case of triable issues in the Suit which needs to be


adjudicated. Therefore, the defendant is entitled to
grant of unconditional leave to defend the Suit.

ADVERTISEMENT TARIFF:
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23. Although certain other issues are raised by


both the parties, in view of our finding that the
defendant/appellant is entitled to leave to defend
the Suit, we do not find it necessary to go into
other issues at this stage. As regards the

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Govt. of AP, thru Principal Secretary & Ors. v. Pratap Karan & Ors. [IND-SC] (2015) 2 LAW

JUDGMENT
M.Y. EQBAL, J.

(2015) 2 LAW ISC-146

SUPREME COURT OF INDIA


AT NEW DELHI

1. This appeal being C.A.No.2963 of 2013 arises


out of the judgment and order dated 19.12.2011
passed by the 3rd Judge of the High Court of
Andhra Pradesh to whom the matter was referred
to by the Chief Justice for final decision against
the conflicting judgments passed by the two
judges of the said High Court. The appeal was
preferred by the plaintiff-respondent before the
High Court which was heard by a Division
Bench. The two judges of the Division Bench
delivered two conflicting judgments, one by
allowing the appeal and setting aside the
judgment of the trial court and the other by
dismissing the appeal and affirming the judgment
of the trial court. The 3rd Judge to whom the
matter was referred, passed the impugned
judgment upholding the judgment of one of the
learned judges and allowing the appeal and
decreeing the suit of the plaintiff-respondent.
Another appeal being C.A. No. 2964 of 2013 has
been filed by the transferee of the suit property
during the pendency of the appeal in the High
Court. Since leave was granted, both the appeals
have been heard and disposed of by this
judgment.
2. The plaintiffs (hereinafter referred to as the
respondents) filed Title Suit No. 274 of 2007 for
rectification
of
Revenue
Records
by
incorporating their names as owners and
possessors in respect of the suit land comprised
within Survey No. 613 of Nadergul Village,
Saroornagar Mandal, Rangareddy District, by
deleting the duplicate Sy. No.119 in respect of
portion of the land of the said Village.
3. The factual matrix of the case is that the
contesting plaintiff-respondents filed the above
suit stating that their predecessor in title late Raja
Shivraj Dharmavanth Bahadur (hereinafter
referred to as late Raja) was the pattadar and
absolute owner of the suit schedule property. The
succession of the estate of late Raja was declared
by a Royal Firman of the Nizam in favour of Raja
Dhiraj Karan, late Raja Dharam Karan, late Raja

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 2963 of 2013


Date of Judgment: Friday, 9 October 2015
Government of Andhra Pradesh, thru
Principal Secretary & Ors.

Appellants
Versus

Pratap Karan & Ors.

WITH CIVIL APPEAL NO. 2964 of 2013


Andhra Pradesh Industrial Infrastructure
Corporation Limited
versus
Pratap Karan and others

Respondents.

Appellant(s)

Respondent(s).

Citation: (2015) 2 LAW ISC-146


CORAM:
M.Y. EQBAL, J.
C. NAGAPPAN, J.
***
Short Notes: Khasra Pahani is a crucial record of right:
In this detailed decision, the Apex Court makes it clear
that simply because a village is listed as a Jagir village, all
lands in its boundaries cannot be automatically deemed as
jagir lands since some of those may be freeholds or
otherwise privately held. In the instant case, when it was
specifically recorded in Pahanis, especially in Khasra
Pahani, that the lands were patta lands or in possession of
private persons, mere rounding off the revenue entries and
writing government lands beside that by some authorities
would not make those government lands. Herein, there is no
explanation/evidence as to under which proceeding and by
which order the Revenue Record was changed. As far the
claim of confiscation of the land by the Government, no
proceeding was initiated by any competent authority under
any law before making entries in the Revenue Records that
land was confiscated. Further, there is no document to show
that in pursuance of confiscation entries the person in
occupation was dispossessed and the record is maintained
showing dispossession and taking possession of the land by the
Government. As such, the previous entry would protect the

private parties and especially the entries in Khasra Pahani,


a Record of Rights maintained by the government, are akin
to title over such lands.

***

Courtesy: Supreme Court of India at http://judis.nic.in/;


emphases in bold ours - IMS.

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Govt. of AP, thru Principal Secretary & Ors. v. Pratap Karan & Ors. [IND-SC]

Mehboob Karan and the heirs of Raja Manohar


Raj vide Firman dated 4th Ramzan 1359 Hizri
{Ex.A1). On the death of late Raja issueless in
the year 1917, the succession of his estate was
granted by the Royal Firman in favour of the sons
of his two brothers Raja Lokchan Chand and Raja
Murali Manohar Bahadur by another Royal
Firman dated 5th Safar 13 1361 Hizri, the
succession of estate of late Raja Dhiraj Karan was
granted in the name of Pratap Karan who is one
of the plaintiffs, under Ex. A2. The other
plaintiffs are the successors of legal heirs of Raja
Dharam Karan, Raja Mehboob Karan and Raja
Manohar Raj.

ISC-147

in the village are about 875. As per the village


map and the corresponding land records ie.,
Setwar, Vasool Baqui, Touch Plan and Pahanies,
the land within the boundaries of S.No.119
consists of an extent of Ac. 1-20 guntas, which is
in the name of Gaddam Mallaiah as Khatadar.
However, as per the endorsement made in the
Khasra Pahani (1954-55) there is a remark that
the lands of late Raja are shown in separate series
and in the Pahanies subsequent to the Khasra,
S.No. 613 is shown as Shivaraj Bahadur Ilaka
without determining the extent.
6. It is the plaintiffs case that as per the certified
copies of pahanies for the years 1949-50 and
2000-01 the land in S.No. 613 of Nadergul
Village stood in the name of late Raja. However,
it is alleged that in the Khasra Pahani, S.No. 613
is rounded up, which does not convey any
meaning. After 1954-55, Revenue Records are
showing the land in S.No. 119 with an extent of
Ac.355-12 guntas and it is not known as to how
the original extent of land in S.No. 119 shown as
Ac.1-20 has swollen to Ac. 355-12 guntas with
endorsement of Sarkari from the original
endorsement of Gaddam Mallaiah, which clearly
discloses duplication of the land in S.No. 119 and
to say the least, the Revenue Record has been
tampered with by the custodians of the records
with an oblique motive of depriving the
legitimate owners of the land in S.No. 613 of
Nadergul Village. Even today, pahanies, village
maps, and touch plan clearly disclose the
existence of S.No. 613 with a large chunk of land
but purposefully the revenue authorities are not
disclosing the details of the ownership of the suit
land. The basic record i.e. Setwar and Vasul
Baqui Register of 1352 Fasli (year 1943). The
endorsement in the Khasra Pahani of 1954-55
that the lands of late Raja in S.No. 613 are being
shown separately, is devoid of a sensible
meaning. As per the endorsement, it is incumbent
on the defendants to continue to maintain the
revenue records in the name of late Raja and the
plaintiffs being the predecessors in interest as

4. It has been contended on behalf of the


plaintiff- Respondents that they are, therefore, the
absolute owners and possessors of the suit
schedule land. The land in Nadergul Village was
subject matter of survey and settlement of the
year 1326 Fasli (year 1917) and under the said
survey and settlement the lands of late Raja were
part of Khata No.1 wherein the suit schedule land
was having Survey Number 579. Late Rajas
name was also shown as Khatadar in Setwar and
Vasul Baqui. Thus, the suit lands are private
lands of late Raja. The revisional survey of
Nadergul Village was given effect in the year
1352 Fasli (year 1943) and the said survey has
also confirmed the ownership of late Raja in
Khata No. 3 (Khata No. 1 as per survey of 1326
Fasli (year 1917) which also made it clear that the
suit lands are private lands of late Raja. The
present survey number 613 was shown as the
corresponding old Survey Number 579 without
any change in the extent of the land.
5. The Respondents further case is that the
certified copy of Setwar and Vasul Baqui relating
to Sy.No. 613 for the year 1352 Fasli (year 1943)
clearly disclose that late Raja was the Khatadar of
all the land in Sy.No. 613 of Nadergul Village,
Saroornagar Mandal, Rangareddy District, Ex.
A5. The village map of Nadergul Village and
plan of S.No. 613 clearly disclose the land as
Kancha of Late Raja. The total survey numbers
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9. In the amended written statement, it has been


pleaded by the defendant that Nadergul was a
Jagir Village and as all the jagirs were abolished
under the Hyderabad Abolition of Jagirs
Regulation, all Jagir properties vested in the State
and the Jagirdars became entitled only to receive
compensation amount and the estate of late Raja
also got merged with the State and all Jagirs in
Hyderabad State were taken over by the
Government and transferred to Deewani after
publication of Notification No. 8 dated 07-041949. Further Nazim Atiyat had passed an order
dated 20-01-1958 in File No.1/56 Warangal/1950
and the legal heirs of Late Raja had participated
in the said proceedings and staked claim for
commutation amount in respect of the Jagir land.
Aggrieved by the said proceedings, some of the
plaintiffs and certain other successors of late Raja
had filed appeal before the Board of Revenue and
the same was dismissed vide order dated 24.07.92
and a review petition was also dismissed by the
Board of Revenue and, thereafter, the same
persons had filed W.P.No. 4999 of 1974 in the
High Court and as per the judgment in the said
writ petition, dated 22.04.76, the matter was
remanded back to the Board of Revenue and after
remand, the appeals filed by the above said
persons were dismissed for non-prosecution.

pattadar/khatadar of the said land in S.No.613 of


Nadergul Village.
7. The plaintiffs case is that in certified copies of
the pahanies for the years 1955-01, there is
duplication of S.No. 119, and while Gaddam
Mallaiah is shown as Khatadar of S.No. 119 in
respect of land admeasuring Ac.1-20 guntas, the
duplicated S.No. 119 admeasuring more than 355
acres and sometimes Ac.373-22 guntas is being
shown as Kancha Sarkari notwithstanding the fact
that in the Khasra Pahani for the year 1954-55 it
is clearly mentioned late Raja as khatadar/
pattadar of the entire land in S.No.119. Since the
Khasra Pahani has confirmed the ownership of
late Raja, the same cannot be changed as Sarkari
Kancha in the Pahani without there being any
proceedings. When the land in S.No. 613 is
continuing to exist as per the village maps and
touch plan, the pahanies and other records are
being maintained with mis-description, by which
title of the real owner will not vanish. The
plaintiffs who are successors in interest of the
land made attempts for correction of the entries in
the Revenue Records under A.P. Record of Right
in Land and Pattadar Pass Books Act, 1971 (for
short the Act) and the authorities rejected the
claim for correction of entries on the ground that
unless the plaintiffs get their title declared in a
court of law, the mutation in the name of the
plaintiffs cannot be effected under Section 8(2) of
the Act. The defendants have no title over the suit
schedule land.

10. It has been further pleaded in the aforesaid


amended written statement that after abolition of
Jagirs, the Jagir lands of late Raja numbering
about 8 survey numbers were rounded off and
separate numbers from 1 to 194 were given as
evidenced in the Khasra Pahani for the year
195455 and as such the contention of the
plaintiffs that original Sy.No. 119 admeasuring
Ac. 1-20 guntas in the name of Gaddam Mallaiah
has increased to 355 acres is not only false but the
same is contrary to the record. Sy.No. 119
admeasuring Ac.1-20 guntas is separate and
distinct survey number from the Sy.No. 119
which finds place in the Khasra Pahani in
separate series of 1 to 194. This Sy.No. 119 is
admeasuring Ac. 355.00 and recorded as Sarkari
Poramboke. Having not filed any declarations

8. The 5th defendant-appellant Mandal Revenue


Officer, Saroornagar, while denying the suit
claim, contended that the suit is not maintainable.
According to him, the plaintiffs are neither
owners nor possessors of the suit schedule
property and they are in no way concerned with
the suit land as per the Revenue Records. It has
been pleaded on behalf of the defendants that the
plaintiffs did not obtain succession certificate
from the competent civil court and have not
acquired the suit property of late Raja through
succession as pleaded.
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ISC-149

government property as contended by the learned


Advocate General. Further, the identity of land in
S.No. 613, suit land, as found in Ex.A-10 - touch
plan and Ex.A-9 - village map cannot undergo
any change whatsoever and ownership may
change from one person to the other but the
location of land and its identity with reference to
survey number cannot be changed. Therefore,
there is no further necessity for the plaintiffs to
seek declaration of their title except to seek
correction of record of rights recording the
names of the heirs of late Raja i.e. the plaintiffs.
Thus, the plaintiffs are entitled for a declaration
for correction of the entries in the record of
rights recording the names of the legal heirs of
late Raja and also injunction restraining the
defendants from interfering with the plaintiffs
peaceful possession.

under the Land Ceiling Laws, the plaintiffs are


not entitled to stake the suit claim. It is further
pleaded by the defendant that the plaintiffs and
their ancestors have participated in the enquiry
before Nazim Atiyat for the award of
commutation amount and hence they are estopped
from filing the present suit, that too after lapse of
about 5 decades.
11. The trial court, on consideration of evidence
came to the conclusion that the plaintiffs have not
made out a case for correction of Revenue Record
and dismissed the suit. Aggrieved by the same,
the plaintiffs filed the appeal before the High
Court, which being allowed by one Judge and
dismissed by another Judge, was heard by a third
Judge, who after considering the law laid down
by the High Court as well as this Court, held that
the plaintiffs successfully demonstrated that late
Raja was pattadar/khatadar of the land covered by
S.No. 613 admeasuring 373-22 guntas in the
Khasra Pahani, the presumption backward/
forward can be applied in his favour and in
favour of his heirs that he or they continued to be
the pattadar(s). Allowing the appeal of the
plaintiffs and setting aside the judgment and
decree of the trial court, the learned third Judge of
the High Court observed, thus:

12. Aggrieved by the decision of the High Court,


the defendants-appellants have preferred this
appeal.
13. We have heard learned senior counsel
appearing for the parties and also perused the
written submissions filed by them.
14. While raising an additional ground for the
first time here in this appeal, Mr. Mukul Rohatgi,
learned Attorney General appearing for the
appellants, submitted that the learned judges of
the Division Bench who heard the appeal differed
vertically in as much as Section 98(2) of CPC
provides for confirmation of decree of the trial
court. Reference to the 3rd Judge was made in the
present case not after formulating any points of
disagreement on the question of law, hence the
reference by the Chief Justice to the learned 3rd
Judge is ultra vires. In this connection learned
counsel referred the decision of this Court in Tej
Kumar v. Kirpal Singh, (1995) 5 SCC 119. It was
further submitted that even if the provisions of
Letters Patent Act are invoked the same cannot
override the provisions of Section 98 CPC. In this
connection learned counsel referred decisions in

Unless the State proves that the said land has


been confiscated or vest in the State under Jagir
Abolition Act on abolition of jagirs or for nonfiling of the declaration, the property vest in the
Government under the provisions of Andhra
Pradesh Land Reforms (Ceiling on Agricultural
Holdings), 1973, mere mentioning Sarkari in
subsequent pahanies or giving duplication S.No.
119, title of the original owner will not vanish
and it continues to be vest with them. In Khasra
Pahani for the year 1954-55 covered under Ex.
12(a), when it is stated that S.No. 613 has been
recorded as Self Cultivation Dastagardan and
numbers of the Sivaraj Bahadur has been written
separately and the same has also been shown as
S.No. 119 under Ex.12(b). Therefore, late Raja
or his heirs continue(s) to be pattadar(s) for the
corresponding survey number and on changing
also, but the same cannot become the

P.V. Hemalatha v. Kattamkandi Puthiya Maliackal


Saheeda, (2002) 5 SCC 548 and Centre For
Environmental Law v. Union of India, (2010)12

SCC 303. It was further contended that even if


27

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Govt. of AP, thru Principal Secretary & Ors. v. Pratap Karan & Ors. [IND-SC] (2015) 2 LAW

Clause 36 of the Letters Patent of the Madras


High Court which has been adopted for the A.P.
High Court is held applicable, nonetheless, in the
present case, since no points of agreement have at
all been formulated for consideration by the two
learned judges who had heard the appeal,
reference to the 3rd judge was, therefore, clearly
incompetent.

was submitted that none of the plaintiffs entered


the witness box and testified on any of the
averments made in the plaint and the only person
examined was PW-1 as General Power of
Attorney holder of the plaintiffs who could not
have any personal knowledge on the issues
relating to the grant made by Nizam and the
proceeding relating thereto.

15. Learned Attorney General appearing for the


appellant raised another point with regard to
abatement of the appeal pending before the High
Court on the ground inter alia that one of the
respondents i.e. Respondent No. 12 died on
21.12.2010 during the pendency of the appeal
before the High Court. Since the prayer made in
the suit is the one for declaration of title of the
plaintiffs as a single entity the appeal pending in
the High Court itself stands abated. Further, the
appeal in the High Court got abated as a whole in
as much as the decree that was challenged before
the High Court was a joint and indivisible decree.
In this connection the appellants relied upon the
decision in the case of (2006) 6 SCC 569 and
(2010) 11 SCC 476.

18. On the relevancy of documentary evidence


learned counsel contended that Sethwar (Exh.A5), Register of Vasool Baqui and Khasra Pahani
in respect of Survey No. 613 are not sufficient to
declare title of Raja Shiv Bahadur and, thereafter,
the plaintiffs as successors to the Estate in respect
of the suit property. Learned counsel contended
that it is inconceivable that fairly large extent of
373.22 acres of private land would otherwise not
be subjected to any land revenue. According to
the appellants since the land of Survey No. 613
was a Crowns land it was not assessed to land
revenue. With regard to Pahani Patrika from
1949-50 till 2000-01 shows that the land in
survey No.613 as Kancha-Sarkari or Kancha-Shiv
Raj Bahadur. It was contended that there is no
document whatsoever to support the case of the
plaintiffs with regard to the title to the suit
property. These documents cannot be treated as
document of title of the plaintiffs.

16. On merit of the appeal, the appellants first


assailed the finding and the conclusion arrived at
by the High Court that the area by name Bhagat
Nadegul of Hyderabad District is different from
Nadergul Village. According to the appellant
there is absolutely no material to show that there
is any other village by the name Nadergul in any
part of the State. In this connection learned
counsel referred the evidence of PW-1.

19. Lastly, the submissions of the appellants is


assuming that without admitting that there has
been duplication of survey numbers is accepted
that by itself cannot enable the plaintiffs to get a
declaration of title unless there is prima facie
evidence of title being acquired by their
predecessors in interest. In any view of the matter
the suit itself is barred by limitation.

17. Further, the contention of the appellants is


that the predecessors of the plaintiffs had sought
for commutation in respect of land in Nadergul
Village will show that the said lands were treated
as Jagir land. The findings of the Atiyat Court
qua Nadergul with the relevant Sanads have not
been produced for verification. There is no
finding anywhere in Exh. B.1 that Nadergul is not
a Jagir Village. Merely because commutation
amount was not awarded in respect of Nadergul
Village, it shall not be treated as a private land. It
Law Animated World, 15 October 2015

20. Mr. Dushyant A. Dave, learned senior


counsel appearing for the appellant Corporation
in Civil Appeal No. 2964 of 2013, also made his
submission on behalf of the Corporation and
contended that none of the plaintiffs have entered
in the witness box and the only witness who was
examined was the plaintiffs GPA holder whose
evidence cannot be taken into consideration. Mr.
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Dave contended that the plaintiffs have kept quiet


for more than 50 years and hence the suit claim is
a chance litigation. It was further contended that
the judgment of the 3rd learned Judge is opposed
to Section 98(2) of the CPC and suggested that
the matter will have to be remanded to the High
Court.

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High Court nor raised in the grounds of memo of


appeal filed before this Court.
24. Replying [to] the submissions made by Mr.
Dave, appearing for the appellant Corporation in
another appeal, learned senior counsel appearing
for the respondents submitted that a GPA holder
can give evidence on matters which are within his
knowledge and he is competent enough to give
evidence on behalf of the party. In this
connection he relied upon AIR 2005 SC 439.

21. Per contra, Dr. A.M. Singhvi, learned senior


counsel appearing for the plaintiffs-respondents,
at the very outset submitted that although A.P.
Industrial Infrastructure Corporation Limited to
whom the suit property was illegally transferred
by the appellant-State during the pendency of
appeal in High Court is neither a necessary party
nor have got any right to prefer appeal against the
impugned judgment passed by the High Court.

25. Further submissions on behalf of the


respective respondents have been made by Mr.
Vikas Singh and Mr. Harin P. Raval, learned
senior counsel, that since there is no dispute on
the genuineness and authenticity of documentary
evidence on record, the suit claim has to be
decided on documentary evidence i.e. Exhs. A1A-19. According to the learned senior counsel
Exh. A-5 (Sethwar), Exh. A-6 (Vasool Baqui
Record), Exh. A-12 (Khasra Pahani) shows that
the name of Shiv Raj Bahadur was recorded as
the Pattadar of the suit land. From these
documents it can be inferred without any doubt
that ruler of the kingdom has accepted the
ownership of Shiv Raj Bahadur and there is no
need to have either Patta or title documents.

22. On the issue of application of Section 98(2)


of CPC, Dr. Singhvi, learned senior counsel,
submitted that A.P. High Court is governed by
the Letters Patent of Madras High Court and,
therefore, Section 98(2) of the Code has no
application by reason of Section 98(3) of the
Code. It is submitted that the decision of this
Court relied upon by both the parties on this point
itself clarify that Section 98(2) of the Code has no
application to the High Court which is governed
by Letters Patent. In this connection learned
counsel also referred the decision of Patna High
Court in AIR 1984 Patna 296 and AIR 1979
Patna 115. Learned counsel therefore submitted
that there is no illegality in the reference made by
the Chief Justice to the 3rd Judge of the High
Court for deciding the appeal.

26. Referring to the admission in written


statement filed by the defendant-appellants it was
submitted that there are various other Pattadar in
Nadergul Village. Further there is no pleading in
the written statement that Shiv Raj Bahadur was a
Jagirdar of the suit land. It was further contended

that in the order passed in Nizam Atiyat


proceeding it was declared that some villages are
not Jagir lands. The declaration by Nizam Atiyat
is for the whole village and not for some survey
numbers in the Village. Admittedly, there are
various other Pattadars in Nadergul Village and,
therefore, in the Nizam Atiyat proceeding Nadergul
was shown in List-3 as patta lands.
27. So far as the issue with regard to the suit,
being barred by limitation it was submitted by the

23. Rebutting the submission made by the


appellants on the question of abatement learned
counsel submitted that the present suit is for
declaration of title and permanent injunction. On
the death of Defendant No. 12 the right to sue
survives with the remaining plaintiffs and,
therefore, that the appeal then pending in the
High Court will not abate. Learned counsel
referred Order 22 Rule 2 CPC and submitted that
the objection with regard to abatement of appeal
in the High Court was neither raised before the

respondents that the suit for declaration of title and


injunction falls under Article 65 of the Limitation Act
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upon the decision of this Court in the case of

1963 where limitation is 12 years from the date when


possession of the defendant become adverse to that of
the plaintiff. There is no pleading in the written
statement that the State has obtained title by adverse
possession. In the present case the defendant-State
has never set up and or cannot set up title by adverse
possession, hence the suit cannot be held to be barred by
limitation. There is no evidence adduced from the

Matindu Prakash (Deceased) by L.Rs. v. Bachan


Singh and others, AIR 1977 SC 2029; Amba Bai
and others v. Gopal and others, (2001) 5 SCC 570;
Budh Ram and others v. Bansi and others, (2010)

Vol. 11 SCC 476.


32. In the case of Matindu Prakash (Deceased) by
L.R.s v. Bachan Singh and others, AIR 1977 SC

side of the defendants that the State ever came in


possession. On the contrary the possession of the
plaintiff-respondents was sufficiently proved by
the trial court while deciding the injunction
petition as also in the finding recorded by the
High Court dismissing the appeal against the
order of injunction.
28. We have heard learned senior counsel
appearing for the parties at length and perused the
record.
29. Before we decide the merit of the appeal, we
shall take up the interlocutory applications filed
by the appellant during the pendency of this
appeal. By I.A. No. 9/2015 filed on 20th July,
2015, the appellant stated that during the
pendency of the appeal in the High Court,
respondent No. 12 died but the legal
representatives have not been substituted by the
respondents, who were appellants before the High
Court which resulted in abatement of the said
appeal. Hence, prayer has been made that nonsubstitution of legal representatives of respondent
No. 12 in the appeal pending in the High Court,
the appeal stood abated by operation of law and
consequently judgment and decree passed by the
High Court in the appeal suit No. 274 of 2007 is
rendered nullity in law.
30. By another I.A. Nos. 10 and 11 of 2015, the
appellant has stated that during pendency of this
appeal respondent No. 6 died on 8.4.2015 and
respondent No. 14 died on 6.1.2014 which were
not within the knowledge of the appellant, hence
prayer has been made to set aside the abatement
and substitute their legal representatives.
31. Learned Attorney General appearing for the
appellant pressed these two applications relying
Law Animated World, 15 October 2015

2029, when the appeal was pending in this Court,


it revealed that two of the appellants died and no
step was taken to bring the heirs and legal
representatives of those appellants on the record.
The question, therefore, that fell for consideration
was whether appeal abated as a whole so as to entail a
dismissal of the entire suit. This Court, therefore,
remitted the matter back to the High Court to record a
finding and to decide whether by virtue of the death, the
appeal abated as a whole or the appeal had abated qua
the deceased appellants before the Civil Appeal is

disposed of.
33. In the case of Amba Bai and others v. Gopal
and others, 2001(5) SCC 570, this Court was
considering the case where a suit for specific
performance by one plaintiff against the
defendant was finally allowed in appeal and the
suit was decreed. During the pendency of Second
Appeal by the defendant in the High Court, the
plaintiff died and his legal representatives were
brought on record. Subsequently, the defendant
also died, but this fact was not brought to the
notice of the Court and the appeal was dismissed.
In those facts this Court considering the provision
of Order 22 Rule 3 of the Code held that in a
case where the plaintiff or the defendant dies and
the right to sue does not survive, and
consequently the Second Appeal had abated and
the decree attained finality inasmuch as there
cannot be merger of the judgment or decree
passed in Second Appeal with that passed in the
First Appeal. The said decision therefore, in our
considered opinion will not apply in the present
case. In the instant case, there are more plaintiffs than
one and one of them died and the right to sue survives
upon the surviving plaintiffs. In the said circumstances
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1948 were filed by three sets of parties. Therefore,

Order 22 Rule 2 of the Code will come into operation


and the appeal will not abate.

if one of the plaintiffs dies and his legal representatives


are not brought on record the suit or the appeal might
abate as far as he is concerned but not as regards the
other plaintiffs or the appellants. Furthermore, the
principle that applies to this case is whether the estate of
the deceased appellant or respondent is represented.

34. In the case of Budh Ram and others v. Bansi


and others, (2010) Vol. 11 SCC 476, this Court
after considering series of judgments rendered by
this Court in the State of Punjab v. Nathu Ram,
(AIR 1962) SC 89, Sri Chand v. Jagdish Pershad
Kishan Chand, AIR 1966 SC 1427, Ramagya
Prasad Gupta v. Murli Prasad, (1973) 2 SCC 9 and
Sardar Amarjit Singh Kalra v. Pramod Gupta,
(2003) 3 SCC 72 held as under:-

This is not a case where no legal representative


of Manmohini was on record.

36. Similarly, in the case of State of Punjab v.


Nathu Ram, AIR 1962 SC 89 = (1962) 2 SCR
636, which arose out of acquisition of land under
the Defence of India Act, 1939, when the
landowners refused to accept compensation
offered by the Collector, the dispute was referred
by the State Government to an arbitrator, who
passed an award for payment of higher
compensation. The State appealed against the
award. During pendency of the appeal, one of the
landowner[s] namely Labhu Ram died. The High
Court, holding that the appeal abated against
Labhu Ram and its effect was that the appeal
against another respondent also abated, the appeal
was dismissed. When the matter came up to this
Court, at the instance of the State Government,
this Court deciding the issue held as under:

17. Therefore, the law on the issue stands


crystallised to the effect that as to whether nonsubstitution of LRs of the respondent-defendants would
abate the appeal in toto or only qua the deceased
respondent-defendants, depends upon the facts and
circumstances of an individual case. Where each one

of the parties has an independent and distinct


right of his own, not interdependent upon one or
the other, nor the parties have conflicting
interests inter se, the appeal may abate only qua
the deceased respondent. However, in case, there
is a possibility that the court may pass a decree
contradictory to the decree in favour of the
deceased party, the appeal would abate in toto
for the simple reason that the appeal is a
continuity of suit and the law does not permit
two contradictory decrees on the same subjectmatter in the same suit. Thus, whether the judgment/

4. It is not disputed that in view of Order 22


Rule 4 Civil Procedure Code, hereinafter called
the Code, the appeal abated against Labhu Ram,
deceased, when no application for bringing on
record his legal representatives had been made
within the time limited by law. The Code does
not provide for the abatement of the appeal
against the other respondents. Courts have held
that in certain circumstances, the appeals against
the co-respondents would also abate as a result of
the abatement of the appeal against the deceased
respondent. They have not been always agreed
with respect to the result of the particular
circumstances of a case and there has been,
consequently, divergence of opinion in the
application of the principle. It will serve no
useful purpose to consider the cases. Suffice it to

decree passed in the proceedings vis--vis remaining


parties would suffer the vice of being a contradictory or
inconsistent decree is the relevant test.

35. In the case of Harihar Singh v. Balmiki Prasad


Singh, AIR 1975 SC 733 = (1976) 1 SCC 212,
this Court observed:
32. The important point to note about this litigation is
that each of the reversioners is entitled to his own
specific share. He could have sued for his own

share and got a decree for his share. That is why


five Title Suits Nos. 53 and 61 of 1934 and 20,
29 and 41 of 1935 were filed in respect of the
same estate. In the present case also the suit in
the first instance was filed by the first and second
plaintiffs for their one-twelfth share. Thereafter
many of the other reversioners who were
originally added as defendants were transposed
as plaintiffs. Though the decree of the trial court
was one, three Appeals Nos. 326, 332 and 333 of

say that when Order 22 Rule 4 does not provide for the
abatement of the appeals against the co-respondents of
the deceased respondent there can be no question of
abatement of the appeals against them. To say that the

appeals
31

against

them

abated

in

certain

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circumstances, is not a correct statement. Of


course, the appeals against them cannot proceed
in certain circumstances and have therefore to be
dismissed. Such a result depends on the nature of
the relief sought in the appeal.

construed as a rigid matter of principle but must ever be


viewed as a flexible tool of convenience in the
administration of justice.

..
32. But, in our view also, as to what those
circumstances are to be, cannot be exhaustively
enumerated and no hard-and-fast rule for
invariable application can be devised. With the
march and progress of law, the new horizons
explored and modalities discerned and the fact
that the procedural laws must be liberally
construed to really serve as handmaid, make it
workable and advance the ends of justice,

37. Five Judges Constitution Bench of this Court


in the case of Sardar Amarjit Singh Kalra v.
Pramod Gupta, AIR 2003 SC 2588, was
considering the question as to the effect of death
of some of the appellants during the pendency of
appeal. In that case, during the pendency of
appeal, some of the appellants died on different
dates and there was no attempt to take any step
within time for bringing to the Court the legal
representatives of the deceased appellants. The
respondents, therefore, filed application praying
for dismissal of those appeals as having been
abated. It appears that during the pendency of
appeal in the High Court, some of the appellants
were said to have died, the plea of partial
abatement of the appeals qua only those deceased
appellants were not accepted by the High Court
on the view that decree was joint based on
common right and interest, the appeal was
rejected in toto. On these facts, the Constitution
Bench after discussing all earlier decisions held
as under:-

technical objections which tend to be stumbling blocks


to defeat and deny substantial and effective justice
should be strictly viewed for being discouraged, except
where the mandate of law inevitably necessitates it.

Consequently, having regard to the nature of the


proceedings under the Act and the purpose of
reference proceedings and the appeal therefrom,
the courts should adopt a liberal approach in the matter
of condonation of the delay as well as the considerations
which should weigh in adjudging the nature of the
decree i.e. whether it is joint and inseverable or joint
and severable or separable. The fact that the

Reference Court has chosen to pass a decree


jointly in the matters before us is and should be
no ground by itself to construe the decree to be
joint and inseparable. At times, as in the cases on
hand, the court for its convenience might have
combined the claims for joint consideration on
account of similar nature of the issues in all such
cases and for that reason the parties should not
be penalized, for no fault of theirs. Actus curiae

27. Laws of procedure are meant to regulate


effectively, assist and aid the object of doing
substantial and real justice and not to foreclose
even an adjudication on merits of substantial
rights of citizen under personal, property and
other laws. Procedure has always been viewed as the

neminem gravabit (an act of court shall prejudice no one)


is the maxim of law, which comes into play in such
situations. A number of people, more for the sake

of convenience, may be counselled to join


together to ventilate, all their separate but similar
nature of claims and this also should not result in
the claims of all such others being rejected
merely because one or the other of such claims
by one or more of the parties abated on account
of death and consequent omission to bring on
record the legal heirs of the deceased party. At
times, one or the other parties on either side in a
litigation involving several claims or more than
one, pertaining to their individual rights may
settle among themselves the dispute to the extent
their share or proportion of rights is concerned
and may drop out of contest, bringing even the

handmaid of justice and not meant to hamper the cause


of justice or sanctify miscarriage of justice. A careful

reading of the provisions contained in Order 22


CPC as well as the subsequent amendments
thereto would lend credit and support to the view
that they were devised to ensure their
continuation and culmination in an effective
adjudication and not to retard the further
progress of the proceedings and thereby non-suit
the others similarly placed as long as their
distinct and independent rights to property or any
claim remain intact and not lost forever due to
the death of one or the other in the proceedings.
The provisions contained in Order 22 are not to be

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proceedings to a conclusion so far as they are


concerned. If all such moves are allowed to
boomerang adversely on the rights of the
remaining parties even to contest and have their
claims adjudicated on merits, it would be a
travesty of administration of justice itself.
.
35. In the light of the above discussion, we hold:
(1) Wherever the plaintiffs or appellants or
petitioners are found to have distinct, separate
and independent rights of their own and for
the purpose of convenience or otherwise,
joined together in a single litigation to
vindicate their rights, the decree passed by the

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to whether the judgment/decree passed in the


proceedings vis--vis the remaining parties
would suffer the vice of contradictory or
inconsistent decrees. For that reason, a decree
can be said to be contradictory or inconsistent
with another decree only when the two
decrees are incapable of enforcement or
would be mutually self-destructive and that
the enforcement of one would negate or
render impossible the enforcement of the
other.
.
37. For all the reasons stated above, we are
unable to approve the decision or the manner of
disposal given by the High Court in these cases,
which resulted in grave injustice to the remaining
appellants in denying them of their right to have
an adjudication of their claims on merits. The

court thereon is to be viewed in substance as the


combination of several decrees in favour of one or
the other parties and not as a joint and inseverable
decree. The same would be the position in the

case of defendants or respondents having


similar rights contesting the claims against
them.
(2) Whenever different and distinct claims of
more than one are sought to be vindicated in
one single proceedings, as the one now before
us, under the Land Acquisition Act or in
similar nature of proceedings and/or claims in
assertion of individual rights of parties are
clubbed, consolidated and dealt with together
by the courts concerned and a single
judgment or decree has been passed, it should

High Court ought to have condoned the delay as prayed


for, keeping in view the pendency of the main appeals on
its file, adopting a liberal and reasonable approach,
which would have facilitated an effective adjudication of
the rights of parties on either side, avoiding summary
rejection of the appeals in entirety. The judgment and

decrees passed by the High Court in all these


appeals are set aside and appeals are remitted to
the High Court to be restored to their original
files for being disposed of afresh on merits of the
claims of both parties and in accordance with
law. These appeals are allowed on the above
terms, with no order as to costs.

be treated as a mere combination of several decrees


in favour of or against one or more of the parties and
not as joint and inseparable decrees.

38. In the instant case, the plaintiffs joined


together and filed the suit for rectification of the
revenue record by incorporating their names as
the owners and possessors in respect of the suit
land on the ground inter alia that after the death
of their predecessor-in-title, who was admittedly
the Pattadar and Khatadar, the plaintiffs
succeeded the estate as sharers being the sons of
Khatadar. Indisputably, therefore, all the plaintiffs

(3) The mere fact that the claims or rights


asserted or sought to be vindicated by more
than one are similar or identical in nature or
by joining together of more than one of such
claimants of a particular nature, by itself
would not be sufficient in law to treat them as
joint claims, so as to render the judgment or
decree passed thereon a joint and inseverable
one.
(4) The question as to whether in a given case
the decree is joint and inseverable or joint and
severable or separable has to be decided, for
the purposes of abatement or dismissal of the
entire appeal as not being properly and duly
constituted or rendered incompetent for being
further proceeded with, requires to be
determined only with reference to the fact as

had equal shares in the suit property left by their


predecessors. Hence, in the event of death of any of the
plaintiffs, the estate is fully and substantially
represented by the other sharers as owners of the suit
property. We are, therefore, of the view that by
reason of non-substitution of the legal representative(s)
of the deceased plaintiffs, who died during the pendency
of the appeal in the High Court, entire appeal shall not
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(1) Where an appeal is heard by a Bench of two
or more Judges, the appeal shall be decided in
accordance with the opinion of such Judges or of
the majority (if any) of such Judges.
(2) Where there is no such majority which
concurs in a judgment varying or reversing the
decree appealed from, such decree shall be
confirmed:
Provided that where the Bench hearing the
appeal is composed of two or other even number
of Judges belonging to a Court consisting of
more Judges than those constituting the Bench
and the Judges composing the Bench differ in
opinion on a point of law, they may state the
point of law upon which they differ and the
appeal shall then be heard upon that point only
by one or more of the other Judges, and such
point shall be decided according to the opinion of
the majority (if any) of the Judges who have
heard the appeal including those who first heard
it.
(3) Nothing in this Section shall be deemed to
alter or otherwise affect any provision of the
letters patent of any High Court.

stand abated. Remaining sharers, having definite shares


in the estate of the deceased, shall be entitled to proceed
with the appeal without the appeal having been abated.

We, therefore, do not find any reason to agree


with the submission made by the learned counsel
appearing for the appellants.
39. By filing another I.A. No. 7 of 2015 on
17.4.2015, the appellants sought permission to
urge additional grounds as contemplated under
Section 98 of the Code of Civil Procedure.
Admittedly, this ground was not urged before the
learned third Judge of the High Court at the time
of hearing of the appeal. Be that as it may, we
allow the appellant to urge additional ground in
this appeal.
40. By urging this additional ground learned
senior counsel for the appellants submitted that
the procedure adopted by the High Court in the
disposal of the appeal is not in consonance with
the provisions contained in Section 98 of the
CPC. Learned counsel submitted that the appeal
in the High Court was originally heard by two
judges who differed in their opinion and wrote
two separate judgments. While giving judgments,
both the judges have not recorded their opinion
on the point of difference on the point of law.
Without formulating the point of difference the
matter was referred to a third judge by the Chief
Justice and the third judge finally passed the
impugned judgment concurring with one of the
judge. According to the learned counsel,
therefore, the impugned judgment is vitiated in
law and cannot be sustained. In this connection,
learned counsel relied upon the decision of this
Court in Tej Kaur and Another v. Kirpal Singh and
Another, (1995) 5 SCC119; P.V. Hemalatha v.

42. From the legislative history of enactment of


Code of Civil Procedure, it would appear that
Section 98 of the CPC was for the first time
enacted in 1861 by the Act amending the Civil
Procedure Code of 1859. Subsequently in 1862,
Letters Patents were issued establishing the High
Court of Madras and these Letters Patents were
modified in 1865. Clause 36 of the Letters Patent
declared that in exercise of appellate jurisdiction
the certain procedure is to be adopted. In 1877
and 1882 amendments were brought in the Code
of Civil Procedure but no provision was made to
the effect that the Code shall not affect the Letters
Patent. Thereafter many High Courts and the
Privy Council interpreted the provisions of
Section 98 and Clause 36 of the Letters Patent
and it was consistently held by the Full Bench of
the Madras High Court as under:-

Kattamkandi Puthiya Maliackal Saheeda and


Another, (2002) 5 SCC 548; Pankajakshi (Dead)
Through Lrs. And Others v. Chandrika and Others,

(2010) 13 SCC 303.

The result is that it is now beyond all doubt that


Clause 36 of the Letters Patent applies to all appeals. It
may be asked, when does Section 98 of the Civil
Procedure Code have any operation and why
should the legislature not say that the section

41. Section 98 of the Code of Civil Procedure


reads as under:98. Decision where appeal heard by
two or more Judges.
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does not apply to Chartered High Courts instead


of adding an explanation to the section? The
reply is that Section 98 applies now only to
Courts other than the Chartered High Courts, that
is, the Chief Courts and Courts of judicial
Commissioners and the reason why the
legislature adopted this particular form of
elucidating the matter is that it was intended to

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neither raised this point before the third judge


who passed the impugned judgment nor the
appellants have been granted permission to raise
the question of application of Section 98 of the
CPC. According to the learned counsel having
regard to the procedure provided under the
Letters Patent of the High Court, the objection
cannot be entertained.

retain Section 98 as applicable even to Chartered High


Courts but to make the application subject to Clause 36
of the Letters Patent. If, at any time, Clause 36 of

45. Firstly, we shall discuss the decisions cited


by the learned counsel on both sides. In the case
of Tej Kaur and another (supra), a Division Bench
of this Court has considered the provisions of
Section 98 of CPC. The Attorney General put
reliance on paragraphs 3, 6 and 9 of judgment
whereas Dr. Singhvi relied on paragraphs 8 and 9
of the judgment. Hence we extract paras 3, 6, 8
and 9 of judgment which are as under:-

the Letters Patent ceases to exist, Section 98 will


come into operation. It is to attain this particular
result that the explanation was added to Section
98 instead of saying that Section 98 does not
apply to Chartered High Courts at all. I would
answer the question referred to us thus:

43. Clause 36 of Amended Letters Patent of the


High Court of Madras, which has been made
applicable to the High Court of Andhra Pradesh,
reads as under:-

3. The question, therefore, is whether the


finding of the court below that the will has not
been proved is a finding of fact? If so, whether in
the absence of majority opinion of the Division
Bench, the confirmation of the decree of civil
court is valid in law? Thirdly, whether this Court
can examine the case on merits to find whether
the will is validly proved, in which event would
sub-section (2) of Section 98 be not rendered
otiose or ineffective?
6. In other words, the difference of opinion
between Judges, who constitute the Bench
hearing the appeal, on a point of law alone would
be referred to a third or other Judges according to
the rules of that High Court. By implication, on
question of fact, when there is no majority
opinion varying or reversing the decree appealed
from, such decree should be confirmed.
8. The ratio in Jayanti Devi v. Chand Mal
Agrawa which has been referred by Shri Bagga,
is inapplicable to the point in issue. Therein,
because of what has been provided in subsection
(3) of Section 98 CPC, the letter patent power
was taken aid of and it was held that the letter

36. Single Judge and Division Courts: And we


do hereby declare that any function which is
hereby directed to be performed by the said High
Court of Judicature at Madras, in the exercise of
its original or appellate jurisdiction, may be
performed by any Judge, or by any Division
Court thereof, appointed or constituted for such
purpose in pursuance of Section 108 of the
Government of India Act, 1915 and if such
Division Court is composed of two or more
Judges, and the Judges are divided in opinion as
to the decision to be given on any point, such
point shall be decided according to the opinion of
the majority of the Judges, if there shall be a
majority, but if the Judges should be equally
divided they shall state the point upon which
they differ and the case shall then be heard upon
that point by one or more of the other Judges and
the point shall be decided according to the opinion
of the majority of the Judges who have heard the
case including those who first heard it.

44. Learned senior counsel appearing for the


respondents in response to the argument on
Section 98 of the CPC, submitted that in view of
Sub-section (3) of Section 98, the provision of
Section 98 of the Code will not apply. Ld. senior
counsel submitted that this Court cannot go into
that question for the reason that the appellants

patent court was not confined to the hearing of the


appeal by the third Judge on the question of law only, on
which the Judges hearing the appeal had differed. Such
a difference of opinion could be on a question of fact as
well. It could, thus, be seen that the reference

there was under the letters patent which power


has been expressly preserved by sub-section (3)
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of Section 98. But in the case at hand, the letters


patent power was not available and therefore, by
operation of sub-section (2) of Section 98, the
decree of the court below stands affirmed.
9. The question then is whether this Court could
nullify the scheme of Section 98(2) by
examining the dispute on merits and by
implication render sub-section (2) surplusage or
otiose. In our considered view the contention of
the appellant cannot be accepted. It is true that in
a case where there is difference of opinion
among the Judges of the High Court, the power
of this Court under Article 136 is wide enough to
test the correctness of the conclusion reached by
the differing learned Judges as pointed out by
this Court in Dr Prem Chand Tandon case. This
proposition is unexceptionable but this Court had
no occasion in that case to consider the scope of
sub-section (2) of Section 98. The language

and have not identified the difference on any


point of law, the decree of the court below is
liable to be confirmed in terms of Section 98(2)
of the Code. This Court held that in such cases the
procedure is to be adopted as contemplated under
Section 98 of the Code having regard to the fact that the
provisions of Clause 36 of Letters Patent of the Madras
High Court is not applicable. This Court held:-

17. Admittedly, the High Court of Kerala is a newly


constituted court for the newly formed State of Kerala
in 1956 and governed by the Kerala Act. The said
High Court does not have any Letters Patent it
being not a Chartered High Court continuing
from the British period. In such a situation, it is
submitted that the learned Judges were perfectly
justified in giving effect to the provision of
subsection (2) of Section 98 of the Code and
coming to the conclusion that because of the two
different judgments passed by them the decree of
the subordinate court was liable to be confirmed.
On behalf of the respondent very strong reliance
has been placed on a two-Judge Bench decision
of this Court in the case of Tej Kaur v. Kirpal
Singh in which in a similar situation the Supreme
Court held that the provision of sub-section (2)
of Section 98 would be attracted and in view of
the two conflicting judgments passed by two
Judges who differed on issues of fact, the
judgment of the subordinate court is liable to be
confirmed.

employed in sub-section (2) is imperative and in


mandatory terms. The object appears to be that on a
question of fact when there is a difference of opinion, the
view expressed by the court below, in the absence of a
majority opinion, needs to be given primacy and
confirmed. When such is the animation, this Court

cannot enlarge the scope of the controversy by


itself examining the correctness of the finding of
fact and decide which view of the two is correct.
This would be in direct negation of the
legislative mandate expressed in sub-section (2)
of Section 98 of the CPC.

46. From perusal of the above quoted paragraphs


in the decision given in Tej Kaur (supra) it is
manifest that this Court considered the procedure
to be adopted as contemplated under Section 98
of the Code and held that for those courts, the
procedure of which is governed by Letters Patent,
the power has been expressly reserved by Sub
section (3) of Section 98. Hence, in the instant case

35. We have reached the conclusion as stated


above that clause 36 of the Letters Patent of the
Madras High Court on practice and procedure and
powers of Judges is not applicable to any part of the
new territory of the State of Kerala and to the new High
Court of that State. Law with regard to the

practice, procedure and powers of Judges as


contained in the Kerala Act, would be applicable
uniformly to all the territories now forming part
of the new State of Kerala and the High Court
established for it. We have also held even on
assumption that Section 23 of the TravancoreCochin Act is saved under Section 9 of the
Kerala Act that since the said Kerala Act is a
general law, it has to give place to Section 98
of the Code of Civil Procedure which is a
special law applicable to civil appeals arising
from civil suits.

the procedure provided in the Letters Patent of the High


Court shall prevail.

47. Reference has also been made to the case of


P.V. Hemalatha (supra) where the judges in
appeal constituting a Division Bench pronounced
two separate judgments wherein they differed in
almost all the issues arising in the case. A point
was raised that since the judges comprising the
Division bench delivered two separate judgments
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48. In the case of Pankajakshi (Dead) Through


LRs. And Others (supra), this Court followed the
earlier two decisions in Tej Kaur and P.V.
Hemalatha since the practice and procedure of
Letters Patent was not applicable.
49. A comparative study of Section 98 CPC vis-vis clause 36 of the Amended Letters Patent of
the Andhra Pradesh High Court will reveal that
while Section 98 provides that in a case where the
Judges comprising the Bench differ in opinion on
point of law, they may state the point of law upon
which they differ and the appeal shall be heard
upon that point only by one or more of the other
Judges, such point shall be decided according to
the opinion of the majority of the Judges.
Whereas Clause 36 of the amended Letters Patent
provides that in a case the Division Court
exercising its original or appellate jurisdiction
hears the appeal and the Judges are divided in
opinion as to the decision to be given on any
point, such point shall be decided according to
the opinion of majority of Judges. If the Judges
are equally divided they shall state the point upon
which they differ and the case shall then be heard
on that point by one or more of the Judges and
the point shall be decided according to the
opinion of majority of Judges who have heard the
case including those who first heard it.

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50. Section 98(3) of the Code was added in 1928


by the repealing amending Act (18 of 1928). The
amended Sub-section (3) of Section 98 was
considered by a Full Bench of the Madras High
Court in Dhanaraju v. Motilal Daga and Another,
AIR 1929 (Mad.) 641 (F.B.). The Division Bench
of the High Court of Patna in the case of Bokaro
and Ramgur Ltd. v. State of Bihar, AIR 1966
(Patna) 154, considered the similar question and
observed:The view which I have expressed above is
supported by a Full Bench decision of the
Madras High Court reported in Dhanaraju v.
Bala-kissendas Motilal: AIR 1929 Mad 641 (FB)
: ILR Mad 563, and by two decisions of this
Court; one reported in Debi Prasad Pandey v.
Gaudham Rai: AIR 1933 Pat 67 at p. 69 : ILR
Pat 772 and the other in Rajnarain v. Saligram,
ILR Pat 332. Clause 28 governs not merely
Clause 10, but also Clause 11 of the Letters
Patent which ordains that this Court is a Court of
Appeal from the Civil Courts of the State of
Bihar. Clause 28 of the Letters Patent being
wider in scope than section 98 of the Code of
Civil Procedure, because it covers points of fact
as well as points of law, a reference to a third
Judge in the present appeal is not incompetent
merely because there has been no difference of
opinion between Sinha and S. N. P. Singh, JJ. on
a point of law. The cases relied upon by the
learned Advocate General were decided before
the insertion of Subsection (3) in Section 98 of
the Code and they have become obsolete. I am,
therefore, of the opinion that the point raised by
the learned Advocate General is without merit
and must be overruled, and I must deal with this
appeal as one referred to me under Clause 28 of
the Letters Patent. I must, however, indicate that
I ought to deal with only such point or points in
this appeal upon which there has been a
difference of opinion between Sinha and S. N. P.
Singh, JJ. This is clear not only from the terms of
Clause 28, but also from the decision of this
Court in Zainuddin Hussain v. Sohan Lal. In that

I feel the Legislature was not correct in fettering the


superior court by the insertion of Section 98(2) of the
Code since, after all, it is recognized that an appeal is
different from a judicial review, and appeal can, and at
times does, take the shape of an extended trial with even
adducing new evidence at the appellate stage allowed per
the existing law in certain circumstances. It would also
mean treating the subordinate court on an equal level
with the superior court since if two of the High Court
judges differ, it is the opinion of the subordinate judge
that carries the day finally. Of course, this may be in
consonance with the law in many common law countries
which consider the trial judge as the ultimate authority on
any disputed question of fact. But I dont think we have
been following that tradition. Also it is not essential for
the differing judges themselves to set out the questions of
law/fact on which they differ, as the reference to a third
judge by the Chief Justice can sum up the differences in the

case, and the decision in the appeal should follow, on


questions of law and of fact as well, the majority of the
three judges who looked into the matters. - IMS.
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case, Rai, J. indicated that it is not open to a third


Judge to adjudicate upon a point on which there
is no difference of opinion between the two
Judges who heard the appeal in the first instance.
Similar view was taken by a special Bench of the
Allahabad High Court in Akbari Begam v.
Rahmat Husain : AIR 1933 All 861 SB : ILR All
39.

substance in the preliminary objection of Mr.


Chatterjee in this regard. Mr. Chatterjee's further
contention that there being no majority, and the
reference being invalid, the judgment and decree
of the court below should be deemed to be
confirmed, is also devoid of say merit. Any
majority that may conclude the judgment can be
noticed only after the disposal of the appeal by
the third Judge and not before that. Such a
conclusion can be arrived at only if any views do
not agree with the views of the Hon'ble Judge
taking the view that the judgment and decree
should be reversed. The preliminary objection is
accordingly disposed of.

51. A similar question with regard to the


interpretation of Section 98 CPC and the Patna
High Court Rules came for consideration before
the Patna High Court in the case of Smt. Jayanti
Devi v. Srichand Mal Agrawal and Ors., AIR 1984
Patna 296. Noticing the provision of High Court
Rules, the Court came to the conclusion that the
Letters Patent of the Court has not confined the

52. In the case of Reliance Industries Ltd. v.


Pravinbhai Jasbhai Patel, 1997(7) SCC 300, the
provision of Section 98 came for consideration
before this Court as to the applicability of the
Section in the matter of reference to a third judge,
the Court held:-

hearing of the appeal by a third Judge on the questions


of law only upon which the Judges hearing the appeal
differ. Such a difference of opinion can be on question of
facts also. The High Court is also of the view that
there is no imperative prescription that the difference of
opinion has to be formulated by a joint order. If such

11. As laid down by Section 4 sub-section (1)


CPC itself in the absence of any specific
provision to the contrary, nothing in the Code
shall be deemed to limit or otherwise affect any
special or local law now in force or any special
jurisdiction or power conferred, or any special
form of procedure prescribed, by or under any
other law for the time being in force. It cannot be

difference or differences is expressly enumerated


in a joint order it may serve better. Still absence of
such joint order will not vitiate the reference. The
Court observed:It may be seen that the Letter Patent of the Court

disputed that Letters Patent as applicable to the High


Court of Gujarat is a special law in force which confers
special jurisdiction or power and lays down special form
of procedure prescribed therein for governing the cases
where the two learned Judges forming the Division
Bench of the High Court differed on a question of law or
fact. Under such circumstances clause 36 of the

has not confined the hearing of the appeal by a 3rd Judge


on the questions of law upon which the Judges hearing
the appeal differ. Such a difference of opinion can be on
a question of fact also. That the Judges should

record expressly in a joint order what their


differences are may be desirable. But there is no
imperative prescription that the difference of opinion
has to be formulated by a joint order. If such

Letters Patent laying down the special procedure


for meeting such a contingency was required to
be followed without in any way being impeded
or restricted or being cut across by the procedural
requirements laid down by Order 47 Rule 6 CPC.
The said provision on its own would apply to
those courts which were governed strictly by the
procedure of Code of Civil Procedure and had no
provision of Letters Patent Charter to fall back
upon. In other words chartered High Courts

difference or differences is expressly enumerated


in a joint order, it may serve better and the 3rd
Judge hearing the appeal may not be required to
investigate into their respective judgments to
discover the difference or differences of opinion.
Still absence of a joint order specifying the difference as
envisaged under the proviso to Sub-section (2) of Section
98 of the Code cannot be taken, to vitiate the reference
or the hearing of the appeal by a third Judge. This

governed by the Letters Patent which were original


chartered High Courts or which were the successor High
Courts like the Gujarat High Court, would be governed
by the special procedure laid down by clause 36 of the
Letters Patent and that would remain saved by the

view is supported by a judgment by Lalit Mohan


Sharma, J. in Rulia Devi v. Raghunath Prasad, I
am in respectful and complete agreement with
the views expressed in Rulia's case and find no
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noted
above. It is, therefore, not possible to agree with
the reasoning of the High Court in the impugned
judgment to the effect that clause 36 of the
Letters Patent does not deal with a situation
where there is conflict of decisions between the
two learned Judges of the Bench sitting in review
against the earlier judgment of the Division
Bench of the High Court.

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including the reference. On examining the


observations contained in para 23 of the
judgment of the Madras High Court in A. K.
Gopalan v. District Magistrate, Malabar (AIR
1949 Mad 596), Mr. Mishra stated that he
withdrew his objection and the reference may be
treated as good and be decided on merits.

operation of Section 4 sub-section (1) CPC

54. Coming back to the instant case, the two


learned Judges of the Division Bench passed
separate judgments. One of the learned Judges
allowed the appeal and set aside the trial court
judgment, whereas another learned Judge
affirmed the trial court finding and dismissed the
appeal. Both the learned Judges differed not only
on the point of facts but also on the point of law.
The learned Chief Justice, therefore, referred the
matter to the third Judge for deciding the appeal.
The learned third Judge, after going through the
judgments of the learned differing Judges,
formulated various issues and recorded its finding
on all the points. The learned third Judge finally
upheld the finding recorded by one of the learned
differing Judges and allowed the appeal. In our
considered opinion, therefore, there has been

Moreover the fact remains that by the enactment


of Section 98(3) CPC whatever doubt earlier
remained in connection with this controversy
was put at rest by the legislature and the view
propounded by the Privy Council got statutory
recognition by the amendment of Section 98 and
the insertion of sub-section (3) thereof.

53. In the case of Rulia Devi and others v.


Raghunath Prasad, AIR 1979 Patna 115, a Bench
of the Patna High Court while considering the
provision of Section 98 CPC vis--vis clause 28
of the Letters Patent held:
It will be observed that the Letters Patent does
not confine the point of difference to a question
of law and since it is not subject to any limitation
mentioned in Section 98 of the Civil P.C., it must
be held that a difference between the Judges
constituting a Division Bench, for the purpose of
reference to a third Judge, can be on a question
of fact also. However, in the present case, the
learned Judges did not jointly formulate the
points of difference, after delivering their
separate judgments. They have in the order-sheet
merely stated that as they differed the case
should be placed before the Hon'ble the Chief
Justice for placing it before a third Judge.
7. Mr. Yogendra Mishra, appearing for the
plaintiff-respondent raised a preliminary
objection that since the points were not stated by
the Bench, the reference to the third Judge was
illegal. I do not see any merit in this argument
inasmuch as the points, although not expressly
enumerated by a joint order, are apparent from
the judgments. It is nowhere peremptorily
prescribed that the difference of opinion has to
be formulated by a joint order. Besides, the
irregularity in not doing so, if at all, is of formal
nature and does not vitiate the proceeding

complete compliance of Clause 36 of the Letters Patent


of the Andhra Pradesh High Court and the impugned
judgment cannot be vitiated on that account.

55. Now, we shall discuss the judgment and the


findings recorded by the two learned differing
Judges of the High Court. In the judgment
rendered by Justice B. Prakash Rao the following
points have been formulated for consideration:a) Whether the plaintiffs have established the
claim for declaration of title in respect of
the suit land.
b) Whether the plaintiffs are in possession of
the suit lands for claiming permanent
injunction.
c) whether the suit lands are Jagir lands as
contested by the defendants?
d) Whether the relief of declaration of title can
be granted in the absence of truth of flow
of title?
e) Whether non filing of ceiling declaration
can have the effect of waiver of title?
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Inam and/or confiscated by the State. In any of
these eventualities, there cannot be change of
location and existence together with extent of
survey No. 613. We are at a loss to understand as
to how there can be duplicate survey numbers in
the same village. Similarly it is [not]
understandable as to how patta land can be
confiscated and under which law such an action
can be justified.

f) Whether the entries in the revenue records


can be basis for grant of a decree of
declaration of title?
g) Whether the suit is barred by limitation and
whether the plaintiffs are estopped from
filing the suit since they had earlier
claimed for award of computation amount
contending that suit lands are Jagir lands?
h) Whether the judgment of the trial court
warrants any interference as regards the
findings recorded there?

57. After considering Exhibits A-5 and A-6


which are Setwar and Vasul Baqui, the learned
Judge held that these documents have not been
challenged. So far Exhibit A-12 which is Khasra
Pahani, the land of Raja Shivraj Dharmavanth
Bahadur are recorded in a separate series. This
document has also not been challenged by the
defendant. The learned Judge examined the
written statement and observed:-

56. On consideration of the pleadings of the


parties on the point of change of survey number,
the Court observed:From a thoughtful consideration of the
pleadings of the parties, we find that the state has
been searching for proper defence to the suit. If
defence of the state has been varying from time
to time. We are unable to understand as to how
land admeasuring 373.22 acres in Sy. No. 613 of
Nadergul Village can be separately shown in
new series of survey numbers from 1 to 191. The
village plan showing the number of survey
numbers has not undergone any change. No
supplementary sethwar has been issued and there
is no evidence on record that the original survey
numbers i.e. 1 to 875, have been increased by
another set of survey numbers i.e. the new series
survey numbers 1 to 191. Again the pahanies
filed by both parties disclose the existence of Sy.
No. 613, they also disclose the existence of
survey number 119 as two different extent of
land, the original survey number is admeasuring
AC. 1.20 guntas. After the khasra pahani, the
same survey number 119 is shown as having an
extent of Ac.355.12 guntas. The plaintiffs have
impleaded the survey department of the state as
one of the defendants but no person from such a
department has been examined as witness. The
oral evidence adduced by the Sate consists of a
Mandal Revenue Officer and Legal Officer.
None of these witnesses are competent to give
evidence about the survey numbers in village, the
sub division of survey numbers, the settlement
operations where the total survey numbers in the
village can get decreased or increased. On one
hand, the State is contesting the suit on the
ground that Nadergul Village is Jagir and/or
Law Animated World, 15 October 2015

Thus there is a clear admission in the written


statement that up to the khasra pahani, Raja
Shivraj Dharmavanth Bahadur recorded as
pattadar of the suit land. As commented by us
earlier, there is no evidence that any additional
survey numbers added to the total survey
numbers 875 in Nadergul village. If that be so, it
is the duty of the state to explain as to what has
happened to the vast chunk of land which was part
of survey No. 613 of Nadergul village. It is not
explained as to why Raja Shivraj Dharmavanth
Bahadur lands were to be recorded in a separate
series of survey numbers from 1 to 194. The state
has not explained as to what is the extent of each
of these survey numbers 1 to 194. It is not the
case of the state that the village map of the
Nadergul village has undergone a change or that
any re-settlement and survey operations were
carried out in Nadergul village. Hence, we have no
hesitation to hold that Raja Shivraj Dharmavanth
Bahadur was the pattadar of the suit land and he was
khatadar for payment of revenue (khata No. 3).

58. The learned judge further observed:The learned Advocate General had vehemently
submitted that entries in Revenue Records can
neither create title nor they take away title. He
has further submitted that in order to make out a
case of declaration of title, the plaintiff is
obligated to establish the flow of title by
producing the link documents and established
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that he has acquired ownership from a valid


person. On the other hand, the learned counsel
for the plaintiffs had submitted that in Telangana
Area, the matters of revenue were regulated by
the A.P. (T.A.) land Revenue Act 1317 F and
various rules were made under the said Act and
the entries in Sethwar, vasulbaki and khasra
pahani cannot be construed as entries in yearly
pahanies and that the recording of a person as a
pattadar under Section 2(11) of the act, he is
entitled to be declared as owner of the said land,
the plaintiffs have not placed any evidence
before us as to how Raja Shivraj Dharmavanth
Bahadur had acquired the suit lands. According
to the learned counsel for the plaintiff, the
fundamental mode of acquisition, the most
primitive mode of acquisition, is capturement
and if the Ruler that Nizam acknowledges the
same, that would be sufficient to construe him as
owner of the land, the learned counsel for the
plaintiff has placed reliance on a Division bench
of this Court reported in AIR 1970 AP 19 para
19. In the said judgment it has been held that the
Act has defined the expression permanent
Alienation in section 2 (o) to include any sale
exchange or gift and any transfer of a right of
occupancy or of the patta of holding but
excluding any disposition by will. It is therefore
obvious from the provisions of the Land
Revenue Act any person is legally entitled to be
in possession, whether with the permission of
Tehsildar in respect of vacant lands under
Section 54 or of a pattadar who is in possession,
has a right of occupancy which is heritable and
transferable under section 58. It is this type of
occupancy that is included in the definition of
permanent alienation in Section 2(o) of the
Tenancy Act. The learned counsel for the
plaintiffs has placed reliance on section 2((11) of
A.P. (T.A.) Land Revenue Act with defines a
pattadar which means the person who is directly
responsible to the Government for payment of
land revenue and whose names has been entered
as such in government records whether he be
personally in possession of the holding or
thorough his Shikmidar. Section 24 of the Act
declares that all public roads, lanes, paths,
bridges, ditches, dikes, rivers, streams, tanks,
ponds, canals, lakes and flowing water and all
lands, wherever situated, together with all rights

ISC-163

appertaining thereto are the property of the


Government excepting.

59. Referring [to] various decisions of the High


Court and Supreme Court, learned judge
concluded that the entries in Setwar and Vasul
Baqui and Khasra Pahani are prepared under the
statute and hence these entries constitute title.
The learned Judge observed as under:We are unable to understand as to why the
plaintiffs cannot placed reliance on entries in the
sethwar, vasulbaki and khasra pahani which are
exhibited as Ex. B19 (bunch of pleaded). This is
a very peculiar case where duplicated survey
numbers are pleaded by the State. It is not
possible to digest as to what has happened to the
land in survey No. 613 (suit land) since it was
specifically in existence with Raja Shivraj
Dharmavanth Bahadur as pattadar and Khatadar
up to the year 1954-55. Even if Nadergul village
is assumed as Jagir village or Inam village, the
entire land in Nadergul village must have the
same consequence i.e. getting vested in the State.
But the written statement shows that Raja Shivraj
Dharmavanth Bahadur land[s] are separately
shown in separate series of survey numbers from
1 to 194 with different owners. It is not the case
of the state that it has granted by assignment of
the land in Nadergul village. There is no
possibility of a single survey number i.e. sy. No.
613 (suit land) getting covered either under the
Hyderabad Abolition of Jagir Regulation or the
A.P. (T.A.) Abolition of Inams Act 1955. At any
rate the identity of land in Sy. No.613 (suit land)
as found in Ex. A.10 touch plan and Exd.A9
village map cannot undergo any change
whatsoever. Ownership may change from one
person to the other but the land cannot change its
location and identity when described with
reference [to] a survey number. Hence, we are
unable to agree with the state that Ex. A. 5 and A
6 cannot be taken as title documents. Hence, we
hold that Raja Shivraj Dharmavanth Bahadur
was the pattadar, khatadar and owner of the suit
land and since the plaintiffs are the successors of
Raja Shivraj Dharmavanth Bahadur, they are the
successors to claim title of the suit land. We
reject the contention of the state that the lands of
Raja Shivraj Dharmavanth Bahadur are recorded
separately in a new series of survey numbers i.e.
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1 to 194 since there is no iota of evidence about


the creation or existence of such survey numbers.
It is now possible to comprehend that survey
numbers would be changed when it relates to the
title of the person. The object of conducting
survey of land is to maintain the identity of the
land and hence the endorsement in the khasra
pahani that lands of Raja Shivraj Dharmavanth
Bahadur are shown separately is of no
intelligible meaning. The evidence of DW 1 and
DW2 has not thrown any light on these aspects.
It is to be remembered that the State has pleaded
that the lands of Raja Shivraj Dharmavanth
Bahadur are recorded in separate series of survey
numbers from 1 to 194 (written statement para 4)
and hence the burden is upon the state to prove
the same and explain as to what had happened to
the lands of Raja Shivraj Dharmavanth Bahadur.
No such attempt has been made by the State and
hence we are constrained to reject the contention
of the state after the khasra pahani, Raja Shivraj
Dharmavanth Bahadurs land in Sy. No. 613 of
Nadergul village is shown separately in a fresh
series of survey numbers i.e. 1 to 194.

suit for declaration of title. It is settled law that a


claim for declaration of title never gets extinguished by
efflux of time. Even under Article 65 of the

Limitation Act, 1963 the Limitation runs only


from the date on which the possession of the
defendants becomes adverse to the plaintiffs.
Hence we hold that the plaintiffs are not
disqualified from filing the suit even if they had
approached the Nazim Atiyat under Ex. B1
proceedings.

62. On these findings, the learned judge allowed


the appeal and set aside the judgment passed by
the Trial Court.
63. The second learned Judge, Justice R. Kantha
Rao, delivered a separate judgment, disagreeing
with all the findings recorded by Justice B.
Prakash Rao. Learned Judge firstly held that the suit
for declaration of title as owners of the property, the
burden is on the plaintiffs to prove their title of
ownership. The learned Judge referring various

judgments rendered by this Court and the High


Court came to the conclusion that the holder of

60. On the issue whether the Nadergul Village is


a Jagir village, the Court held:-

General Power of Attorney (GPA) is not competent to


give evidence. The holder of GPA cannot be

From the documentary evidence adduced by the State,

substituted for the said purpose. Learned Judge


further noticed that the legal heirs of Raja Sivaraj
Bahadur participated in the Inam Enquiry before
the Nizam Atiyat to declare their rights and fix
the commutation in respect of Jagir lands. The
Nizam Atiyat by judgment dated 20.07.1958
(Ex.B-1) passed order for payment of
commutation amount in respect of Jagir villages.
Some of the plaintiffs preferred appeal against the
judgment of the Nazim Atiyat to Board of
Revenue and this appeal was dismissed.
Thereafter, some of the plaintiffs filed the writ
petition, which was allowed and the matter was
remanded to the Board of Revenue for fresh
disposal. Further, the appeal was ultimately
dismissed for non-prosecution. According to the
learned Judge, therefore the order passed by the
Appellate Authority dismissing the appeal for
non-prosecution will operate as res judicata.

there is no basis to construe that Nadergul village is a


Jagir village. We have earlier observed that if a

village happens to be a jagir village, all the


survey numbers of the village should have the
same effect by virtue of the Jagir Abolition Law.
The state has contended that there are private
patta lands in Nadergul village in other survey
numbers. Hence it is absurd to appreciate that
survey No. 613 of Raja Shivraj Dharmavanth
Bahadur alone can be construed as a Jagir.
Above all, the state has not chosen to fortify its
pleading by adducing the best evidence i.e. any
notification showing that the suit lands are jagir
lands. Hence we have no hesitation to hold that
the suit land is not Jagir land and hence it cannot
be claimed by the State.

61. On the issue of maintainability of suit, the


learned Judge finally held that:We have already noticed the judgment of the
Nazim Atiyat, which has rejected computation
amount for List III villages in Ex.B1. Hence
there is nothing improper in filing the present
Law Animated World, 15 October 2015

64. The learned Judge also disagreed with the


another Judge on the finding that when a person
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c) whether the suit lands are Jagir lands as


contested by the defendants?
d) Whether the relief of declaration of title can
be granted in the absence of truth of flow
of title?
e) Whether non filing of ceiling declaration
can have the effect of waiver of title?
f) Whether the entries in the revenue records
can be basis for grant of a decree of
declaration of title?
g) Whether the suit is barred by limitation and
whether the plaintiffs are estopped from
filing the suit since they had earlier
claimed for award of computation amount
contending that suit lands are Jagir lands?
h) Whether the judgment of the trial court
warrants any interference as regards the
findings recorded there?
67. At the very outset, the learned Judge noticed
the admission made in the written statement that
in Khasra pahani of 1954-55 late Raja Sivaraj
Dharmavanth Bahadur was recorded as Pattadar
and Khatadar of S.No. 613 admeasuring AC. 37322. It has further been admitted that in the said
Khasra Pahani survey numbers the name of Raja
Sivaraj Bahadur are recorded separately in a new
series of Survey Numbers from 1 to 194. Further
in Ex.12(a), which is a Khasra Pahani, it is
recorded as cultivated self and it is mentioned
as Inam Dastagardan (suspense account) and in
which Pattadars name is mentioned as Sivaraju
Ilaka and survey numbers of Siva Raju Bahadur
are written separately. The learned Judge further
noticed that even in pahani for the year 1960-61
of Nadergul Village covered under Ex.12(b),
which is mentioned at serial no. 2, Survey No.
613 Sivaraju Ilaka. The learned Judge further
came to the following finding:
In pahani pathrika for the year 1949-50 covered
under Ex.19(a), S.No. 613 is shown as Kancha
Siva Raj Dastagardan admeasuring AC. 323-22.
In the pahani patrika for the year 1950-51
covered under Ex.B-19, S.No. 613 admeasuring
Ac. 373-22 is classified as Kancha Sevaraj
Munzabta Confiscated, and name of Khathadar
is mentioned as Kancha Severaj. In th Khasra

is recorded as Pattedar and Khatadar he has to be


considered to be the owner of the property and
there is no necessity of proving the source of the
acquisition of the land. According to the learned
Judge, mere marking of documents such as Ex.A5, certified copy of Sethwar relating to Sy.No.
613 of Nadergul Village, Ex.A.6, certified copy
of the Vasulbaki Register of Sy.No. 613 of
Nadergul village and Exs.A-12 to A-14
certified copies of pahanies where name of Raja
Sivaraj Bahadur is found, the plaintiffs are not
entitled for declaration of title. The learned Judge
is of the view that plaintiffs failed to adduce any
positive evidence to prove title and possession of the suit
property. Accordingly, he by his judgment

dismissed the appeal.


65. It is pertinent to mention here that on perusal
of two separate judgments written by learned
Judges of the Division Bench, they have not
agreed on any point of facts or point of law rather
they have decided the appeal by expressing their
separate views. This may be the reason when the
file was placed before the Chief Justice, he
referred the matter to a third Judge for deciding
the appeal after considering the different views
given by the two learned Judges in the separate
judgments written and signed by them.
66. Justice A. Gopal Reddy, before whom the
appeal was referred and finally placed for
hearing, has considered the two judgments
delivered by the differing Judges. The third Judge
considered in detail the judgment given by Justice
B. Prakash Rao, who extensively dealt with the
entire facts of the case and the evidence brought
on record. After discussing the pleadings of the
parties in detail, the learned Judge framed the
following eight points for consideration:
a) Whether the plaintiffs have established the
claim for declaration of title in respect of
the suit land.
b) Whether the plaintiffs are in possession of
the suit lands for claiming permanent
injunction.
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By any stretch of imagination, [it cannot be deemed
that?] the heirs of Raja Shivaraj Dharmmavanth
Bahadur were awarded commutation amount to
foreclose their rights under the above
proceedings. Even if the appeals were dismissed
after remand order passed by the High Court, the
commutation amount, if any awarded under
Ex.B-2 is only for the lands which are not
covered by proceedings under Ex.B-1. Further,
as per Khasra Pahani, the land revenue account
of late Raja was Khata No. 3. The said fact has
been admitted in the written statement. Whereas
Ex.B-2 and B-27 are in respect of Khata No. 6,
which should obviously be different from the
revenue account of late Raja i.e. Khata No. 3.
Therefore, it can safely be concluded that Exs. B2 and B-27 do not pertain to the lands of which
late Raja was Khatadar/pattadar. Further, it was
categorically stated in NB(1) of Ex. B-2 that the
award will be implemented on the payments side
after carefully checking and reconciling the
number of jagir villages as furnished by the
estate authorities with the list recently received
from the Atiyat Department, so as to keep the
commutation sum of villages shown in list No.
III attached to Nazim Saheb Atiyats L.No.1884
dt. 27-2-1958 in reserve as ordered by the Board
of Revenue in their letter No. U/993/58/Atiyat dt.
12-4-1958. So, the amounts so mentioned are not
conclusive but were ordered to keep in reserve
[sic to be kept in reserve] until rights of the parties
are decided in separate proceedings. Therefore, it

Pahani for the year 1954-55 covered under Ex.B19(a), it was shown as S.No. 119 and extent is
shown as Ac. 355-12 guntas and column No. 6
was shown as Sirkari and land name is Khas
Sagu (cultivated self). D.Ws.1 and 2, who
entered into the witness box have not clarified as
to how two different Khasra pahanies were
maintained, namely, in the khasra pahani for the
year 1954-55, Raja Sivaraj Dharmavanth
Bahadur has been recorded as Pattadar and
Khatadar of S.No. 613 admeasuring 373-22,
another Khasra Pahani covered under Ex.B19(a), S.No. 119 of Nadergul is admeasuring Ac.
355-12 guntas which is Sirkari but Sivaraj Ilaka.
It is admitted by the defendants that total survey
numbers in Nadergul village are 875. The village
map which was marked by the plaintiffs shows
original 875 survey numbers and the new series
of 1 to 194 survey numbers. It is admitted in the
first written statement filed by the fifth defendant
that suit land was confiscated to the State and
how the same was confiscated to the State and
under what proceedings the land was confiscated
has not be stated. In the amended written
statement, State has taken several alternative and
inconsistent defences by contending that
Nadergul village is Inam Dastagardan. Even if
we accept that is Inam Dastagardan, it is only a
suspense account and rights of the parties have to
be determined under Inams Abolition Act. There
is no proof that the land has been treated as
government land and confiscated to the State.
Once it is recorded that S. No. 119 admeasuring
Ac.1-20 guntas belongs to Gaddam Mallaiah,
how the same survey Number i.e. 119 can be
recorded as having an extent of Ac. 355-12
guntas, shown it as government land. D.Ws.1
and 2 have not properly explained the same in
their evidence.

is not open for the Government to contend that the


properties are confiscated or vest in the Government in
the light of the commutation award passed by the Office
of the Jagir Administrator, Government of Andhra

Pradesh, Hyderabad-Deccan dt.30.3.1959 (Exs.


B-2 and B-27).

69. The learned Judge has further taken notice of


the fact that of late the State Government, now, is
claiming property by rounding off the names of
pattadars and others in the revenue records
without referring to any proceedings, which fact
has been observed by one of the decision in Syed
Ahmad Hasan case, 2011(4) ALT 262 (DB).

68. The learned Judge on the issue with regard to


Atiyat proceedings in respect of Jagir land came
to the following finding:
It is relevant to note here, Baga Nadergul
village has been mentioned in List-III under the
heading Tahrir Pawanni Jagirs under Serial No.8.
Therefore, no commutation amount has been
fixed for list III villages, which is subject to
further enquiry with regard to the claim, if any
filed by sub-grant[ee]s to prove their possession.
Law Animated World, 15 October 2015

70. Finally, the learned Judge came to the


following conclusion:
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From the above discussion and the law laid


down by this Court as well as the Supreme
Court, it is to be held that the plaintiffs
successfully demonstrated that the late Raja was
pattadar/khatadar of the land covered by S.No.
613 admeasuring 373-22 guntas in the Khasra
Pahani, the presumption backward/forward can
be applied in his favour or in favour of his heirs
that he or they continued to be pattadar(s). Unless

ISC-167

court, the findings recorded in two separate


judgments passed by the Division Bench of the
High Court and finally the impugned judgment
passed by the third learned Judge of the High
Court. The third learned Judge to whom the
matter was referred has agreed with and upheld
the finding recorded by one of the judges of the
Division Bench and allowed the appeal decreeing
the suit filed by the plaintiffs-respondents.

the State proves that the said land has been confiscated
or vest in the State under Jagir Abolition Act on
abolition of jagirs or for non filing of declaration, the
property vest in the Government under the provisions of
Andhra Pradesh Land Reforms (Ceiling on Agricultural
Holdings), 1973, mere mentioning Sarkari in
subsequent pahanies or giving duplication S.No. 119,
title of the original owner will not vanish and it
continues to be vest with them. In Khasra Pahani for

73. The plaintiffs-respondents filed the suit for


correction and rectification of record of right in
respect of S.No. 613 measuring Acres 373.22
guntas of land which was recorded in the name of
the predecessors of the plaintiffs and the same
alleged to have been illegally rounded up by the
Revenue authorities and a new S.No. 119 was
created in favour of the State without any notice
and legal proceedings.
74. It has not been disputed by the appellantState that the suit land comprised within S.No.
613 measuring 373.22 guntas was held and
possessed by Raja Shiv Raj Bahadur who was the
Khatadar and Pattadar of S.No. 613 of Village
Nadergul. It is also not in dispute that succession
of the Estate of Late Raja Shiv Raj Bahadur was
declared by a Royal Firman of the Nizam in
favour of Raja Dhiraj Karan, Dharam Karan,
Mehboob Karan and the heirs of Manohar Raj
vide Firman dated 4th Ramzan 1359 Fasli. On the
death of Raja the succession of the Estate was
granted by the Royal Firman in favour of the sons
of the two brothers and by subsequent Firman in
favour of Pratap Karan, who is one of the
plaintiffs.
75. It has been admitted in the written statement
that in the Setwar and Vasool Baqui, the name of
Raja was recorded as the owner of the said S.No.
613. Subsequently, in the Khasra Pahani which is

the year 1954-55 covered under Ex. 12(a), when


it is stated that S.No. 613 has been recorded as
Self Cultivation Dastagardan and numbers of
the Sivaraj Bahadur has been written separately
and the same has also been shown as S.No. 119
under Ex.12(b). Therefore, late Raja or his heirs
continue(s) to be pattadar(s) for the
corresponding survey number and on changing
also, but the same cannot become the government
property as contended by the learned Advocate
General. Further, the identity of land in S.No. 613, suit
land, as found in Ex.A-10-touch plan and Ex.A-9-village
map cannot undergo any change whatsoever and
ownership may change from one person to the other but
the location of land and its identity with reference to
survey number cannot be changed. Therefore, there is
no further necessity for the plaintiffs to seek declaration
of their title except to seek correction of record of rights
recording the names of the heirs of late Raja i.e. the
plaintiffs. Thus, the plaintiffs are entitled for a declaration
for correction of the entries in the record of rights
recording the names of the legal heirs of late Raja and also
injunction restraining the defendants from interfering
with the plaintiffs peaceful possession. (emphases ours)

71. The learned third Judge, therefore, agreed


with the finding recorded by one of the Judges,
Justice B. Prakash Rao, and upheld the
conclusion arrived at by him and consequently
allowed the appeal.
72. We have meticulously perused the pleadings
of the parties, and the evidence, both oral and
documentary adduced by them. We have also
gone through the findings recorded by the trial

the basic record of right prepared by the Board of


Revenue, Andhra Pradesh for the year 1954-55 the
name of Raja Shiv Raj Bahadur was entered as the
absolute owner and possessor of the suit land. Hence,
the title of the owner supported by various documents
including the Khasra Pahani, which is a document of
title, has been proved beyond doubt.
(emphases ours)
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76. Recently, in the case of Collector v. Narsing


Rao, (2015) 3 SCC 695, this Court (one of us Honble C. Nagappan, J. was a party) had
considered a similar question where the challenge
to the title of pattadar by the Government was
negatived and this court held:-

State have totally failed to prove as to under which


proceeding and under what circumstances, the suit land
was suddenly shown as Government land. No
proceeding whatsoever was initiated before the alleged
confiscation of the suit land. Admittedly, Survey No.

119 admeasuring 1.20 guntas belonged to one


Gaddam Mallaiah which is evident from the
revenue record. We have failed to understand as to

13. Consequent to the merger of Hyderabad


State with India in 1948 the Jagirs were
abolished by the Andhra Pradesh (Telangana
Area) (Abolition of Jagirs) Regulation, 1358
Fasli. Khasra pahani is the basic record-of-rights

how another Survey No. 119 came into existence


showing entire suit land to the extent of AC 355.12
guntas treating it as Government land.

prepared by the Board of Revenue Andhra Pradesh in


the year 1954-1955. It was gazetted under

79. Mr. V. Giri, learned senior counsel appearing


for the appellant, contended that under the Jagir
Abolition Regulation the suit land is vested in the State.
Consequently, the matter was referred to Atiyat
proceeding for computation of compensation, it
was only because the sanad was not proved, the claim
for compensation in respect of suit land was rejected.
80. We are unable to accept the submission made
by Mr. Giri, learned counsel for the appellant.
From perusal of exhibit B-1 which is the
judgment of Nizam Atiyat dated 20.1.1958 it is
evident that the mass is comprised of Jagir,
Rusums and Inam land. The High Court in the
impugned judgment has rightly observed:-

Regulation 4 of the A.P. (Telangana Area)


Record-of-Rights in Land Regulation, 1358 F.
As per Regulation 13 any entry in the said
record-of-rights shall be presumed to be true
until the contrary is proved. The said regulation
of 1358 F was in vogue till it was repealed by the
A.P. Rights in Land and Pattadar Pass Books
Act, 1971, which came into force on 15-8-1978.
In the 2nd Edn. (1997) of The Law Lexicon by P.
Ramanatha Aiyar (at p. 1053) Khasra is
described as follows:
Khasra. Khasra is a register recording the
incidents of a tenure and is a historical record.
Khasra would serve the purpose of a deed of title,
when there is no other title deed.

It is relevant to note here, Baga Nadergul


village has been mentioned in List-III under the
heading Tahrir Pawanni Jagirs under Serial No.
8. Therefore, no commutation amount has been
fixed for list III villages, which is subject to
further enquiry with regard to the claim, if any
filed by sub-grant[ee]s to prove their possession.
By any stretch of imagination, [it cannot be deemed
that] the heirs of Raja Shivaraj Dharmmavanth
Bahadur were awarded commutation amount to
foreclose their rights under the above
proceedings. Even if the appeals were dismissed
after remand order passed by the High Court, the
commutation amount, if any awarded under Ex.
B-2 is only for the lands which are not covered
by proceedings under Ex. B-1. Further, as per
Khasra Pahani, the land revenue account of late
Raja was Khata No. 3. The said fact has been
admitted in the written statement. Whereas Ex.
B-2 and B-27 are in respect of Khata No. 6,
which should obviously be different from the

77. One of the Judges of the Division Bench after


considering the facts of the case and discussing
elaborately the oral and documentary evidence
recorded a finding with regard to the title in
respect of S.No. 613 in favour of the plaintiffs.
The third Judge in the impugned judgment has
also discussed the evidence and finally upheld the
finding recorded by one of the Judges of the
Division Bench. We do not find any reason to differ
with the finding recorded by the two judges of the High
Court on the issue of title of the plaintiffs predecessors
over the suit land.

78. Besides the above, it has not been denied by


the appellant that there is an endorsement in the
said Khasra Pahani, Survey No. 613 admeasuring
AC 373.22 is recorded as cultivated self and in
column 7 it is mentioned that Inam Dastagardan
(suspense account), Exhibit 12(a). The appellantLaw Animated World, 15 October 2015

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revenue account of late Raja i.e. Khata No. 3.


Therefore, it can safely be concluded that Exs. B2 and B-27 do not pertain to the lands of which
late Raja was Khatadar/pattadar. Further, it was
categorically stated in NB(1) of Ex. B-2 that the
award will be implemented on the payments side
after carefully checking and reconciling the
number of jagir villages as furnished by the
estate authorities with the list recently received
from the Atiyat Department, so as to keep the
commutation sum of villages shown in list No.
III attached to Nazim Saheb Atiyats L.No.1884
dt. 27-2-1958 in reserve as ordered by the Board
of Revenue in their letter No.U/993/58/Atiyat dt.
12-4-1958. So, the amounts so mentioned are not
conclusive but were ordered to keep [sic to be
kept] in reserve until rights of the parties are
decided in separate proceedings. Therefore, it is
not open for the Government to contend that the
properties are confiscated or vest in the
Government in the light of the commutation
award passed by the Office of the Jagir
Administrator, Government of Andhra Pradesh,
Hyderabad-Deccan dt.30.3.1959 (Exs. B-2 and
B-27).

ISC-169

(a) where the village in which the farm is


situate has been brought under survey and
settlement whether before or after the
appointed day, in accordance with the
terms recorded at the time of such survey
and settlement;
(b) for so long as the village has not been
brought under survey and settlement, in
accordance with the terms and conditions
prevailing immediately before the
appointed day.
(2) For the purposes of sub-section (1) the extent
and boundaries of the home-farm of a Jagirdar or
Hissedar shall be such as the Jagir Administrator
may by order determine :
Provided that no forest or waste land shall be
included in any home-farm.
18. Personal property and liabilities not affected.
Nothing in this Regulation shall affect,
(a) the personal property of a Jagirdar or
Hissedar or any property other than the
Jagir held by a Jagirdar on behalf of the
Hissedar, or
(b) any liability of a Jagirdar or Hissedar in
respect of any loan taken from
Government.

81. The learned Judge of the High Court in the


impugned judgment has taken judicial notice of the
fact that the Government, now-adays, is claiming
property by rounding off the names of Pattadars and
others in the Revenue Records without referring to any
proceedings, which fact has also been observed in

83. From bare perusal of the aforesaid provision


it is clear that such land which has been brought
under survey settlement and record of right has
been prepared in the name of the land owner in
respect of self cultivated land shall have no effect
on the provisions of Jagir Abolition Regulations.
84. On the finding recorded by the Trial Court on
the issue of possession, the plaintiff produced
evidence stating that for irrigation purpose on the
land, 18 bore-wells have been dug, some borewells were dug-up in 1980 and some in 1990s
and 5 during the last five years. It has also come
in evidence that the plaintiff obtains three service
connections for the bore-wells in the name of the
deponent. The Trial Court took notice of the fact
that the defendant State has admitted that both
Sethwar and Wasool Baki do contain the name of
Shivraj Bahadur, the truth of these documents and
the correctness of entries therein are not in
dispute. The only contention of the State was that

a Division Bench judgment of the Andhra


Pradesh High Court in the case of Syed Ahmad
Hasan, 2011(4) ALT 262.
82. Both the trial court and the learned Judge of
the Division Bench, who affirmed the finding of
the trial Court have failed to take into
consideration the relevant provision of the
Hyderabad (Abolition of Jagirs) Regulation, 1358
Fasli and held that by the said Regulation, all
Jagir land became the Government land. Sections
17 and 18 of the Jagir Abolition Regulation read
as under:17. Home-farms.
(1) Nothing in this Regulation shall affect the
home farm (seri Khudkasht) of a Jagirdar or
Hissedar which, subject to any law for the time
being in force, he shall continue to hold,
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any Survey Settlement proceeding and in absence


of any proceeding for preparation of record of
right, the name of the plaintiff was removed and
substituted with the name of the State. Hence, the

these are the records long prior to independence and


subsequently there have been several changes and
different revenue entries have been made and there is
no consistency in the Revenue entries recognizing the
title of the plaintiffs-predecessors interest.

aforesaid decision of this Court rather supports the case


of the plaintiff.

85. The Trial Court considered the decision in the


case of State of Himachal Pradesh v. Keshav Ram
and Ors., 1997 (AIR) SC 2181, which was relied
upon by the learned Advocate General, the Trial
Court held that the decision of the Supreme Court
(Supra) was not considered by the High Court in
the earlier decisions. The Trial Court erroneously
held that except entries made in Sethwar and
Wasool Baqui, there are no subsequent Revenue
entries much less consistent entries to corroborate
the entries in Sethwar and Wasool Baqui to
establish title. The Trial Court recorded incorrect
finding that the subsequent Revenue entries do
not contain the name of Raja Shivraj Bahadur
either pattadar/khatadar and in all the records
instead of his name the land was either shown as
Kancha-Sarkari or land confiscated by the
government. The Trial Court further erroneously

88. Admittedly, Nadergul Village was brought


under Survey and Settlement in the Revenue
record of right including khasra-pahani land
which were in original possession of Raja Shivraj
Bahadur was given corresponding Survey No.
613 and in the remark column recorded as Self
Cultivation Dastagardan and the successor of Raja,
namely, the plaintiff continued possession of the
suit land. Similarly, one Gaddam Mallaiya was
allotted Survey No. 119 in respect of his land
which is undisputedly come in his possession.
89. Considering all the documentary evidences
together viz., Exh. P-2 Firman confirming the
successor of Late Raja Dhiraj Karan in favour of
Pratap Karan, one of the plaintiffs, Exh. P-5
Sethwar for Survey No. 613, Exh. P-8 Vasool
Baqui, substantiate the case of the plaintiffrespondents that the Revenue Records were not
correctly and properly maintained. Further, the
Touch Plan copies of Survey No.613 and 119 and
certified copies of Pahani in respect of the suit
land show the incorrect maintenance of Revenue
Records. Certified copies of Pahani for the year
1949-58 and 2000-01 of Survey No. 119 make it
clear that there is duplication of survey numbers.
Indisputably, Survey No. 613 was suddenly
rounded off stating that the property was
separately shown. There is no explanation or

held that even in the khasra-pahani of the year 1954-55


which is an important Revenue Record, the name of
Raja Shivraj Bahadur was not shown as khatadar/
patadar.

86. In the decision relied upon by the Trial Court


(AIR 1997 SC 2181), the fact was that the land
originally belonged to the plaintiff but in the year
1950, the name of the State was recorded in the
settlement paper as the owner. The plaintiff
applied for necessary corrections of the record
and ultimately in a suit, the Civil Court passed a
decree in favour of the plaintiff. The matter
finally came to this Court. Allowing the appeal,
this Court held that since the name of the State
was recorded to be the owner of the land in the
Record of right prepared in the year 1949-50, the
Court could not have passed a decree for the
change of Revenue record.
87. In the instant case, the fact is totally reverse. The

evidence from the side of the appellants as to under


which proceeding and by which order the Revenue
Record was changed. So far as the claim of
confiscation of the land by the Government is
concerned no proceeding was initiated by any
competent authority under any law before making
entries in the Revenue Records that land was
confiscated. For doing the same there must be a

proceeding and order of confiscation of the land


which has not been brought on record. Further,
there is no document to show that in pursuance of
confiscation entries the person in occupation was

Record of right duly prepared in the year 1954-55, the


name of the original owner Raja Shivraj Bahadur was
recorded in Revenue Record as the owner which is
evident from khasra-pahani. All of a sudden without
Law Animated World, 15 October 2015

48

(2015) 2 LAW

Govt. of AP, thru Principal Secretary & Ors. v. Pratap Karan & Ors. [IND-SC]

ISC-171

94. So far as Civil Appeal No. 2964 of 2013 filed


by the appellant-Corporation is concerned,
admittedly the appellant-State, despite pendency
of appeal in the High Court, transferred the suit
land in favour of the Corporation. The said
transfer is not only hit by lis pendens but also
appears to be not bona fide. Be that as it may,
consequent upon the dismissal of the appeal of
the State being C.A.No. 2963 of 2013, the appeal

dispossessed and the record is maintained


showing dispossession and taking possession of
the land by the Government. In the survey
settlement proceedings there cannot be
duplication in survey numbers. We have failed to
understand as to how a duplicate Survey No. 119
came into existence and the land of Survey No.
613 was shown in that duplicate survey No. 119.
The learned District Judge while deciding the
injunction application has recorded admission of
the Government that the plaintiffs are in
possession of the suit land. On the basis of
admission by the appellant and the Revenue
Record the Court gave interim protection by
granting a temporary injunction in favour of the
plaintiffs.

being C.A.No. 2964 of 2013 filed by the Corporation is


also dismissed.

*****

IN RETROSPECT
{Sagas of heroism and sacrifice of Indian
revolutionaries during freedom struggle}

90. In the instant case, although the Trial Court


decided the Interlocutory Application for
injunction not only on consideration of
documentary evidence, but also admission made
by the appellant State admitting possession of the
plaintiff over the suit land but in the final
judgment, no finding recorded with regard to
possession of the suit land except that these
documents do not prove title of the plaintiff on
the suit land.

Collected and edited by: I. MALLIKARJUNA SHARMA


5 volumes (7 books) running to about 2200 1/8 demy pages

Rare and precious interviews of several


revolutionary freedom fighters - colleagues
of Bhagat Singh like Shiv Varma, Jaidev
Kapur, Durga Bhabi; deputies of martyr
Surya Sen such as Benode Behari Dutta,
Sahay Ram Das; veteran fighters of
Telangana Armed struggle like B.N. Reddy,
Omkar, Mallu Swarajyam; founders of
communist movement in India and Andhra
like SA Dange, SG Sardesai, Kambhampati
Satyanarayana, et al; of selfless intellectuals
such as Sri Vavilala Gopalakrishnaiah, Dr.
A.R. Desai et al; of several women leaders
and fighters like Dr. Lakshmi Sahgal of
INA, Bina Das, Kamala Mukherji, et al
incorporated.

91. One of the learned Judges of the Division


Bench on consideration of all the documentary
evidence and the Revenue Records recorded the
finding in favour of the plaintiff. The said finding
of the learned judges has been affirmed and
upheld by the learned third Judge of the High
Court and allowed the appeal and set aside the
finding of the Trial Court.
92. We have given our thoughtful consideration
on the finding recorded by the learned Judges of
the Division Bench and finding recorded by the
third learned Judge to whom the matter was
referred for passing the final judgment. In our

Entire set at a deep-discounted price


of Rs. 1500/- (for individuals only).
Contact:
I. BALAMANI, RAVI SASI ENTERPRISES,
H. No. 6-3-1243/156, M.S. Makta,
Opposite Raj Bhavan, HYDERABAD - 500 082.

view, there is no material on the record to reverse the


finding of the two learned Judges of the High Court.

Ph: 040 - 23300284; E-mail: mksharma55@gmail.com

93. For the aforesaid reasons, we find no merit in


C.A. No. 2963 of 2013 and the same is dismissed.

[Add Rs. 75/- for outstation cheques]

49

Law Animated World, 15 October 2015

ISC-172

Sanjiv Rajendra Bhatt v. Union of India & Ors. [IND-SC]

(2015) 2 LAW ISC-172

Station, Ahmedabad, (Rural), under sections 189,


193, 195, 341 and 342 of the Indian Penal Code
(for short IPC) to any independent agency like
CBI outside the control of the State Government.
An application being Criminal Misc. Petition No.
15871/2015 has been filed for issuance of further
directions in the changed circumstances to
appoint an independent Special Investigation
Team (SIT) to conduct de novo investigation in
the aforesaid FIR. Prayer had also been made to
investigate into the additional documents filed on
29.7.2011. Proceedings for contempt under
Article 129 of the Constitution read with
Contempt of Courts Act, be initiated against
incumbents named in the application, and such
other persons as this Court may deem fit. A
prayer has also been made to direct certain
service providers to preserve the e-mails and/or
electronic traces thereof. Criminal Misc. Petition
No. 15874/2015 has been filed for impleadment
of certain incumbents as respondents.
2. In W.P. (Crl.) No. 204/2011, a prayer has been
made to transfer investigation arising out of IICR No.3148/2011 registered on the basis of the
FIR lodged by the then Additional Advocate
General of State of Gujarat at Vastrapur P.S.,
Ahmedabad, Gujarat, under section 66 of the
Information Technology Act, (for short the IT
Act) to any independent agency like the CBI
outside the control of the State Government.
Similarly Crl. Misc. Petition No. 15875/2015 for
aforesaid directions and for impleadment as
respondents - Crl. Misc. Petition No.15877/2015
has been filed.
3. In Writ Petition (Crl.) No. 135/2011, the
petitioner has averred that investigation of I-CR No.

SUPREME COURT OF INDIA


AT NEW DELHI
CIVIL ORIGINAL JURISDICTION

WRIT PETITION (Criminal) No. 135 of 2011


Date of Judgment: Tuesday, 13 October 2015
Sanjiv Rajendra Bhatt

Petitioner

Respondents.

Versus

Union of India & Ors.


With W.P. (Crl.) No. 204/2011

Citation: (2015) 2 LAW ISC-172


CORAM:
H.L. DATTU, CJI.
ARUN MISHRA, J.
***
Short Notes:
This is the important and much publicized case of Sri
Sanjiv Bhatt, a top IPS officer of Gujarat, who claimed to
have been harassed by Gujarat Government and Narendra
Modi subsequent to his tough and impartial stand at the
time of Gujarat Riots of 2002, and requested the Apex
Court to institute a special investigation team (SIT) for
speedy investigation and trial of false cases foisted against
him. But the Apex Court, on going through voluminous
record and hearing contentions of all parties, found that
Sanjiv Bhatt himself engaged in conduct unbecoming of a
police officer, also came to the Court with unclean hands
and, anyway, the cases against him are relatively for minor
offences with charge-sheets also filed in them, and as such
no interference by the Apex Court for institution of a SIT
was necessary.

***
JUDGMENT
ARUN MISHRA, J.

149/2011 is required to be transferred to CBI or any


other investigating agency/SIT outside the control of the
then Chief Minister of Gujarat. Since the aforesaid
FIR had been lodged with a view to falsely implicate,
pressurize and intimidate the petitioner and other
witnesses as the petitioner in statements before the SIT
as well as before the Commission of Enquiry has
divulged certain facts which have the potential of
directly implicating high functionary of State of Gujarat
in the riots of 2002 alleging that there is an unholy
nexus between the prosecuting agency and higher

1. The petitions have been filed by the petitioner


under Article 32 of the Constitution. In W.P.
(Crl.) No. 135/2011, a prayer has been made to
direct transfer of the investigation arising out of ICR. No.149/2011 registered on the basis of FIR
lodged by Mr. K.D. Panth at Ghatlodia Police

Courtesy: Supreme Court of India at http://judis.nic.in/;


emphases in bold ours - IMS.

Law Animated World, 15 October 2015

(2015) 2 LAW

50

(2015) 2 LAW

Sanjiv Rajendra Bhatt v. Union of India & Ors. [IND-SC]

echelons of the Government of Gujarat in certain

ISC-173

occasions. During the period from February to June,


2010, he came across e-mail exchanges which clearly
indicated an unholy and illegal complicity between the

then AAG and the functionaries of State of Gujarat.

judicial proceedings including W.P. (Civil)


No.221/2002.
4. The petitioner has submitted that he joined the
service as an IPS Officer way-back in the year
1988 and was allocated to the State of Gujarat.
From December, 1999 to September, 2002, he
was posted as Deputy Commissioner with the
State Intelligence Bureau. He used to look after
matters pertaining to internal security of the State,
Border Security, Coastal Security, security of
vital installations, counter intelligence and VVIP
security including that of the Chief Minister. He
has alleged that he was present in the meeting

The petitioner has further averred that on


20.9.2010, he briefed the Additional Chief
Secretary (Home) about the leakage of the
testimony before the SIT. He was advised to meet
the then Chief Minister to clear the air. In the
intervening night of 3rd and 4th November, 2010,
the house of the petitioners mother was
ransacked. The petitioner had lodged FIR (P-5) at
Navrangpura Police Station registered as I-CR.
No.449/2010. Again the incident was repeated on
the intervening night of 8th and 9th November,
2010 and a steel almirah which could not be
broken open on the earlier occasion, was broken
and searched. FIR (P-6) was lodged at
Navrangpura Police Station as I-CR No. 456/
2010. The petitioner requested for adequate
security cover vide letter dated 14.2.2011 (P-7).
6. On 15.3.2011 this Court directed the
Chairman, SIT to carry out investigation and
submit a report on the observations made by the
amicus curiae appointed by this Court. Pursuant
thereto the petitioner was summoned by the SIT
under section 160 of the Code of Criminal
Procedure in connection with the investigation of
Meghani Nagar Police Station, I-CR. No. 67/2002.
He was issued summons (P-10) for 21.3.2011
under section 160 Cr.PC. The SIT started
recording of statements of the petitioner on
21.3.2011 which was concluded on 25.3.2011.
On 25.3.2011 while recording statement of the
petitioner, the SIT expressed its inability to
encompass the details indicative of larger

convened by the then Chief Minister on the night of


27.2.2002. The instant FIR was a counter-blast at

the aforesaid action taken by the petitioner. The


petitioner has submitted that Ms. Jakia Nasim
Ahesan Jafri had filed a complaint on 8.6.2006
which was ordered to be looked into by SIT as
per orders of this Court. The petitioner is a close
friend of the then AAG. They have been regularly
vacationing together for the last so many years. In
2009, they had made a family trip to Goa. At that
time, it is alleged, at the request of the then AAG, the
petitioner had accessed his e-mail account. The

petitioner came across very unusual e-mails


received from SIT, (sit.godhracases@gmail.com).
It is alleged that someone from SIT was leaking sensitive
and confidential contents. A copy of e-mail dated

14.9.2009 (P-4) has been filed.


5. In November, 2009, the petitioner was
informed telephonically by the SIT appointed by
this Court. Prior to the scheduled interaction with
the SIT, he was approached by the then Minister
of State, Home Department, and was sought to be
briefed at the office of the then AAG of Gujarat.
While appearing before the SIT, he had informed
Mr. A.K. Malhotra, Member, SIT, about the
episode and also leaking of information by the
SIT to the then AAG. His statement was recorded
on several occasions in 2009 and 2010 by the
SIT. The petitioner has further averred that he
had vacationed again in May-June, 2010 with the
then AAG along with family. He was again
required to access the e-mail account on several

51

I cant support this conduct of Sanjiv Bhatt. This is at


once betrayal of a friend, which is in my opinion very
heinous. His friend seemed to have enormous confidence
in him and let him access and use his own e-mail account.
If something untoward was found there, it was the duty of
Sanjiv Bhatt to have warned his friend first and then
refuse to open that e-mail any further. Sanjiv Bhatt
should read the excellent story Tennessees Partner by
Bret Harte (1836-1902) to know what friendship is and
what it means. - IMS.
Law Animated World, 15 October 2015

ISC-174

Sanjiv Rajendra Bhatt v. Union of India & Ors. [IND-SC]

conspiracy of official orchestration behind


Gujarat riots of 2002. The SIT self-restricted the
scope of FIR under investigation. The petitioner
had taken Mr. K.D. Panth along with him to the
office of the SIT to corroborate the fact of his
having attended the fateful meeting at the
residence of the then Chief Minister on the late
night of 27.2.2002. SIT was averse to record the
statement of Mr. Panth including Mr. Tara Chand
Yadav who could have corroborated the fact of
petitioners presence in the meeting. Later on, the
SIT examined Mr. K.D. Panth. While recording
statement, he was subjected to intimidation and
coercion by the SIT. The fact was informed to
him on 6.4.2011 by Mr. K.D. Panth. The
petitioner wrote a letter to the Chairman, SIT
about the intimidation meted out to Mr. Panth,
and expressed an apprehension as to the role and
intention of certain members of the SIT. On
14.4.2011, the petitioner sent an affidavit to this
Court in SLP (Criminal) No.1088/2008 pointing
out certain aspects and inadequacies in the
manner and approach of the SIT and intimidation
of Mr. Panth. In the affidavit he has also
mentioned the details of the meeting convened by
the then Chief Minister on 27.2.2002. On
27.4.2011, the petitioner was summoned by
Justice Nanavati and Mehta Commission of
Inquiry (for short Justice Nanavati Commission)
directing him to appear on 16.5.2011. This Court
vide order dated 5.5.2011 (P-18) in SLP (Crl.)
No.1088/2008 directed the amicus curiae to
examine the record of the SIT. He was permitted
to interact with the witnesses examined by the
SIT. On 27.5.2011, the petitioner was asked by
amicus curiae to remain at Gandhinagar
(Ahmedabad) on 18/19.6.2011.
7. The petitioner then informed Mr. K.D. Panth
and Mr. T.C. Yadav about the forthcoming visit
of the amicus curiae. The petitioner suggested to
Mr. T.C. Yadav and Mr. K.D. Panth that they
may prepare affidavits to be given to amicus
curiae on 18.6.2011. The petitioner submitted
that they agreed and requested the petitioner to
arrange for trustworthy advocate who could help
them in preparing and affirming the proposed
Law Animated World, 15 October 2015

(2015) 2 LAW

affidavits in strict confidence. Both the witnesses


got their affidavits prepared and affirmed on
17.6.2011 and gave them to the petitioner. On
18.6.2011 the petitioner met the amicus curiae.
Mr. T.C. Yadav also met amicus curiae.
However, Mr. K.D. Panth did not turn up. The
petitioner then handed over a copy of the affidavit
affirmed by Mr. K.D. Panth to the amicus curiae.
The petitioner came to know on 22.6.2011 that
senior police officials pressurized Mr. K.D. Panth
and made him to affirm the affidavit before the
Executive Magistrate at Gandhinagar negating
the earlier affidavit sworn by him before the
Notary Public on 17.6.2011. A written complaint
was prepared at the behest of Mr. K.D. Panth on
the basis of which at 23.30 hrs. on 22.6.2011 an
FIR (P-13) was registered at Ghatlodia Police
Station as I-CR. No.149/2011. In the course of
the statement before the Commission, the counsel
for the State of Gujarat intimidated to the effect
that the petitioner was crossing the line. Certain
applications were filed in the ongoing criminal
sessions cases to summon the petitioner under
section 311 as a witness in May-June, 2011. The
FIR has been registered against the petitioner. He
has no hope of fair investigation in CR. No. 149/
2011 hence the petition has been preferred.
8. The State of Gujarat in its counter affidavit has
inter alia raised the question of maintainability of
the petition and has submitted that the petitioner
is guilty of suppressing certain facts and has
made incorrect statement on oath. Thus he is
guilty of suppressio veri and suggestio falsi. The
petitioner has filed concocted documents
regarding award of Rs. 500/- given to Mr. K.D.
Panth for working till late night on 27.2.2002.
The original award is in vernacular language, not
in English and the outward number is incorrect. It
was not for working overnight on 27.2.2002 as
contended by the petitioner. It was for taking care
of entire situation post 27.2.2002 incident. The
petitioner has tried to mislead this Court and has
made false suggestions. The award was given by the
State Government to all employees for taking care of
post the situation of 27.2.2002 incident. This Court has

considered all the allegations made by petitioner


52

(2015) 2 LAW

Sanjiv Rajendra Bhatt v. Union of India & Ors. [IND-SC]

the leader of rival political party in Gujarat. He


has referred to rival political party as his own party.
While being cross-examined by the opposition
parties before Justice Nanavati Commission,
petitioner has sent e-mail that the performance of
the advocate of the rival political party was
pathetic and mentioned that I am under
exploited.

against them in SLP (Crl.) No. 1088/2008


monitored by a Special Bench of this Court.
9. Investigation into the riot cases of 2002 is
completed by the SIT appointed by this Court and
trials are going on in accordance with the orders
passed by this Court on 1.5.2009 in W.P. (Crl.)
No.109/2003. In Gulberg Society case also, this
Court has passed order in SLP (Crl.) No. 1088/
2008. The complaint of Ms. Jakia Jafri dated
8.6.2006 has already been examined by the SIT.

11. Petitioner was also negotiating with several


vested interest groups, NGOs. and was trying to
influence the amicus curiae appointed by this
Court. E-mails reveal that someone else was
instrumental in sending the unsolicited affidavit
of petitioner to this Court on 14.4.2011. He was in
constant touch with an activist and her lawyer. E-mail
discloses unholy nexus of the petitioner with
politicians, NGOs., activists etc. It is submitted
that on behalf of the rival political party, a prayer
was made to call the petitioner as witness. The

The petitioner cannot choose investigating agency. The


petitioner appears to have been brought at the scene at
the fag end of the trial by the political parties, activists
and other vested interest groups. An activist has filed

an application for being impleaded as respondent.


While petitioner was
consultation with the
vested interest groups,
quiet for nine years as

ISC-175

in connivance and constant


adversary political party and
he has no explanation to keep
to the meeting dated 27.2.2002.

Other facts have also been denied. In e-mail (P-4)


filed by the petitioner, attachments indicate that it
was with respect to Sohrabuddin encounter, the
petitioner has made false suggestions and
allegations as to the contents of e-mails and
absolutely false allegations against SIT. The
Sohrabuddin encounter case was investigated by
Gujarat State CID.
10. It is further stated in the reply that the petitioner

petitioner did not object to the cross-examination by


Jan Sangharsh Manch, and to the main rival political
party, in Gujarat, but objected to the cross-examination

by the State of Gujarat.

12. It is further contended by the State that Mr.


K.D. Panth appeared before the Executive
Magistrate, Gandhinagar on 17.6.2011 and swore
an affidavit as to the petitioner illegally obtaining
affidavit which was filed before the amicus
curiae by the petitioner. The allegation regarding
destruction of records has also been denied. The
record of category D is maintained only for 3
years that is log book of the vehicle and the same
is not available with the State Government as the
copies are maintained by the concerned officers
contemporaneously who submit the same. The

is guilty of hacking the e-mail account of the then AAG


for which offence under section 66 of the IT Act has
been registered. Petitioner was leaking information

and interacting with media and other vested


interest groups. He even attempted to use media card
to influence judicial proceedings. The affidavit sent by
the petitioner in SLP (Crl.) No.1088/2008 was not taken
on record. This fact has been suppressed by the
petitioner. He is acting at the behest of rival political
party in the State of Gujarat. The State has made

petitioner failed to appear despite several summons in


CR. No.149/2011, he was arrested and was immediately
visited by the leaders of rival political party.

serious allegations against the petitioner and real


motives to file the petition in this Court. It has
placed on record e-mails sent/received by the
petitioner which indicate that the petitioner has
interacted with the Deputy leader of Assembly
belonging to rival political party. He has tried to

13. In the counter affidavit filed on behalf of Mr.


K.D. Panth, respondent No.4, it is contended that
the investigation in I-CR. No. 149/2011 is over.
He has not received any award for working late in

influence amicus curiae and the 3-member Bench of this


Court by using media card and using pressure groups.

He was receiving packages and materials from


53

Wow, how can he do that? Even if done, no judicial


authority can/will sustain that objection. - IMS.
Law Animated World, 15 October 2015

ISC-176

Sanjiv Rajendra Bhatt v. Union of India & Ors. [IND-SC]

the night on 27.2.2002. The petitioner has made


false averments. Petitioner had taken him to the
residence of the President of Gujarat State Unit of
main rival political party. The incident is
established by way of scientific evidence
reflected in charge-sheet. He was in Maharashtra
from 25.2.2002 to 28.2.2002. He had visited
notary/advocate at Bombay (Maharashtra) for the
purpose of getting the translated documents
notarized/certified. Petitioner has falsely asserted that

of TADA and arrested 140 innocent persons. An


inquiry was got conducted by the State
Government and the petitioner was found guilty of
misuse of TADA and unnecessary imposition of curfew
for 70 hours. As sanction was not given by the

State Government to prosecute the petitioner the


closure report was submitted which was rejected
and cognizance taken under sections 302, 323,
506(1) and 114 IPC. The said case was pending
for framing charges against the petitioner. The
victim was awarded a compensation of Rs.1.5
lakh, who died due to Police atrocities.
16. It is further contended that petitioner was
involved in infamous case of eviction of tenant
after fabricating case under NDPS Act while he
was posted at Banaskantha. A complaint was
filed by Mr. S.S. Rajpurohit, Advocate practising
at Pali, State of Rajasthan, registered as FIR No.
403/1996 for commission of offence under
sections 120B, 195, 196, 342, 347, 357, 365,388,
458, 482 IPC and sections 58(1) and 58(2) of the
NDPS Act. On completion of the investigation, a
charge-sheet had been filed against petitioner in
the Court of Special Judge under the NDPS Act
at Jodhpur. The allegations of the complainant
advocate are that he had been occupying property
as a tenant in Pali, Rajasthan, which was owned
by the sister of Mr. R.R. Jain, the then Additional
Judge of the High Court of Gujarat. At the
instance of said Judge, Mr. Sanjiv Bhatt and his
subordinate officers planted narcotic drugs in a
hotel-room at Palanpur, Gujarat, which was
clandestinely shown as occupied by said advocate
Mr. S.S. Rajpurohit. In order to get the property
vacated, Mr. Rajpurohit was abducted by the
officers of the Gujarat Police from Pali in
Rajasthan. The arrest was shown on 2.5.1996.
Due to torture of police, Mr. Rajpurohit vacated
the premises and handed over possession to the
sister of Mr. R.R. Jain, Additional Judge. Mr. Jain
was not confirmed as Judge of the Gujarat High
Court and repatriated to his original post as City
Civil & Sessions Judge and had ultimately retired
under suspension. The National Human Rights
Commission has taken a serious note of
fabrication of the case by the petitioner under the

he accompanied him to the meeting at the residence of


the then Chief Minister on 27.2.2002.

14. He had received a call from the petitioner at


15:57 hours and he was asked to meet the
petitioner at 22:00 hours at his residence.
Petitioner had taken him to President of the
Gujarat State rival political party, wherefrom he
was taken to the office of the co-accused,
Chairman of the Legal Cell of the said party and
was permitted to leave early in the morning hours
after preparation of affidavit dated 17.6.2011. All
the movements are substantiated by the mobile
call records and mobile tower locations.
Respondent No. 4 has given the statement before the
SIT constituted by this Court. The petitioner is making
frivolous contentions.

15. A counter affidavit has also been filed on


behalf of respondent No.5 SIT contending that
the evidence given by Mr. Bhatt is absolutely
unreliable. His antecedents have been mentioned
in detail. The petitioner remained posted in
various capacities in the State of Gujarat. There
were 3 departmental inquiries pending against
him. He was given 3 promotions of Junior
Administrative Grade, Selection Grade and DIG
Grade vide orders dated 6.8.2005, 3.9.2005 and
24.7.2006 respectively. He was not given IGP
Grade as other departmental enquiries and
criminal cases were pending against him.
Chargesheet was served upon him on 29.12.2010
for irregularities in the Police recruitment under
his Chairmanship as SP, Banaskantha. In the year
1990, the petitioner allegedly committed
atrocities on peaceful and innocent villagers
belonging to a place called Jamjodhpur in which
one person was killed. He invoked the provisions
Law Animated World, 15 October 2015

(2015) 2 LAW

54

(2015) 2 LAW

Sanjiv Rajendra Bhatt v. Union of India & Ors. [IND-SC]

NDPS Act and imposed a fine of Rs.1 lakh on the


Government of Gujarat as the monetary relief to
Mr. Rajpurohit, Advocate. Gujarat State
Vigilance Commission had recommended on
15.7.2002 and 19.10.2006 suspension of Mr.
Sanjiv Bhatt. However, his suspension was not
ordered. Mr. Sanjiv Bhatt did not look after political
and communal matters during 2002 Gujarat riots.
17. SIT has further submitted in the counter
affidavit that the claim of Mr. Sanjiv Bhatt that he was

with Gulberg Society case. Petitioner on his own


without being summoned brought Mr. K.D.
Panth, Constable then attached to Meghaninagar
Police Station along with him on 25.3.2011.
Petitioner stated that Mr. K.D. Panth followed
him on 27.2.2002 with the files in his staff car
whereas he himself had accompanied D.G.P. in
his staff car. Mr. K.D. Panth was waiting outside
and he should be examined in his presence. The
petitioner was informed by SIT that Mr. Panth
would be called on a date convenient to the
Investigating Officer and then examined. This
fact was reported by the SIT to this Court on
25.4.2011. It is denied that SIT has expressed its
inability to encompass the details indicative of a
larger conspiracy. The facts are totally false and
baseless. Mr. Panth did not corroborate the version of

present in meeting convened by the then Chief Minister


on the night of 27.2.2002, could not be substantiated
during SIT investigation. In this regard SIT has

already submitted its report in the Court of XIth


Metropolitan Magistrate, Ahmedabad City on
8.2.2012 in compliance of the orders passed by
this Court on 12.9.2011 in addition to the final
report already submitted by the SIT in this Court
on 25.4.2011. The theory put forth by the petitioner
appears to be
substantiated.

far-fetched,

imaginary

and

ISC-177

the petitioner that of having followed him in his staff car


to the Chief Ministers residence on the night of
27.2.2002.

un-

20. The SIT further contends that the office order


which has been shown as referring to reward by
the petitioner indicates a fax message asking M/s.
Mackro, Chennai, to send their detailed quotation
along with specifications and relevant particulars
in respect of Pistol Glock as the Intelligence
Bureau of Gujarat was in need to purchase the
said equipments. In fact, the reward was given for

18. The allegations made against the SIT leaking


sensitive and confidential contents are absolutely false,
baseless and motivated. The e-mails relating to
Sohrabuddin encounter which was not
investigated by SIT, the Convener of SIT did not
have anything whatsoever to do with the matters
pending investigation/inquiry/trial with the
Supreme Court appointed SIT for Godhra cases.
Thus, the petitioner has made a deliberate attempt to

performing work related to the movement of VIPs


during communal violence after Godhra incident which
took place on 27.2.2002. The fax message has been
placed on record. Thus, petitioner has filed false and
forged documents in this Court.

mislead this Court and intentionally avoided furnishing


of the enclosures with the e-mails. The then AAG of

Gujarat did not have anything to do with the


ongoing investigation with SIT. Sohrabuddin
encounter was investigated by State Police, CID
(Crime) which was earlier being supervised by
Smt. Geetha Johri as IG, CID (Crime), Gujarat
State. The petitioner was examined by SIT earlier
on 25.11.2009 and 26.11.2009 not in the year
2010. Thereafter, he was called for further
investigation in Gulberg Society case only on
21.3.2011. There is an allegation of hacking of
password of e-mail account of the then AAG.
19. It is also contended in reply by the SIT that
the statement of petitioner was recorded on
21.3.2011, 22.3.2011 and 25.3.2011 in connection

21. It is further contended by SIT in its reply that


the petitioner had given wide publicity to the
affidavit dated 14.4.2011 through electronic and
print media. However, after enquiries SIT has come
to the conclusion that Mr. Bhatt was not present in the
meeting convened by the then Chief Minister on
27.2.2002.

22. It is further contended by SIT that on


17.6.2011, Mr. K.D. Panth sent an application to
the Chairman, SIT enclosing a copy of affidavit
affirmed before an Executive Magistrate,
Gandhinagar stating that his statement before the
SIT on 5.4.2011 was without any pressure or
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motivation. He has further stated that in the early


hours on 17.6.2011 the affidavit was got signed
from him by petitioner - Mr. Sanjiv Bhatt
fraudulently after threatening him, for which a
complaint was lodged with the local police.
Prayer has been made that action be taken against
the petitioner for committing contempt of court
and also misleading the court by placing incorrect
facts and e-mail pertaining to Sohrabuddin
encounter case by State Police CID (Crime).
Petitioner has filed additional affidavit. Petitioner has

accused. Petitioner has filed exchange of e-mails


between him and leader of rival political party in
Gujarat Assembly on 28.4.2011 pointing out the
shortcomings of SIT under its Chairman. Full text
of e-mails exchanged between the petitioner and
others has been filed. What is of significance is
that in rejoinder affidavit, the petitioner has not
controverted e-mail contents mentioned by State
of Gujarat in its counter affidavit. Petitioner has
filed additional affidavit including certain
documents. He has submitted that 9 reports
submitted by SIT were sent by the Under
Secretary (Home) to the then AAG and to Mr.
G.C. Murmu. Mr. Gurumurthy Swaminathan had
written to the then AAG that he has received the
reports and the attachments. Mr. Gurumurthy
Swaminathan forwarded the note for hearing on
15.3.2010 to the counsel appearing on behalf of
Pranab Badekha. Petitioner has submitted that
SIT reports were given to the State counsel and
amicus curiae. They were ultimately forwarded
to Mr. Gurumurthy who in turn had advised
counsel for the accused Pranab Badekha in this
Court. The then AAG had exchanged e-mail with
respect to Mr. Bipin Ambalal Patel to his
Advocate in this Court. Certain documents were
also forwarded to the other counsel. Certain emails by Mr. Swaminathan to other functionaries
and by AAG to other State functionaries have
been filed along with additional affidavit on
29.7.2011. E-mail exchange of Mr. Gurumurthy
to correspondent of a newspaper has also been
filed. The then AAG had also drafted a political
memorandum addressed to the Honble President
of India to be submitted by the leaders on behalf
of the ruling party of the State. In Sohrabuddins
case investigation was transferred to the CBI.
Thus, the then AAG was helping the accused as
well as acting on behalf of the State. State of
Gujarat was obtaining the advice of Mr.
Gurumurthy. Petitioner has also submitted that in
Ishrat Jahan encounter case, SIT investigation
was ordered. In that connection also the then
AAG had exchanged 13 e-mails. It is also
submitted that Additional Secretary (Home)s
affidavit was drafted by an outsider Mr.

submitted that his e-mail account has been illegally


hacked with a view to destroy certain crucial evidence
and the State Government is misusing the State
machinery.

23. In reply to the aforesaid affidavit, State of


Gujarat has denied the facts and has given the
details of the allegations in CR. No. 149/2011
filed by Mr. Panth. Charge-sheet has been filed
under section 173 Cr.P.C. Statement of eyewitnesses under section 164 had been recorded.
Mobile call records of the petitioner and
complainant, exchange of calls between the
petitioner and complainant as well as petitioner
and co-accused, mobile tower location received
from service providers indicate the presence of
the petitioner as well as the complainant. The
presence of petitioner/complainant at the
residence of President of rival political party in
Gujarat, as asserted by the complainant and his
presence at the office of the Advocate, who was
Chairman of the Legal Cell of the rival political
party in Gujarat, is also established by the mobile
tower locations. FSL reports also corroborate that
the affidavit was prepared on the same laptop as
stated in the FIR.
24. A rejoinder affidavit has been filed by the
petitioner in W.P. (Crl.) No.135/2011. It is
contended by the petitioner that there is a
deliberate attempt to falsify the stand of the
petitioner regarding his presence in 27.2.2002
meeting with the then Chief Minister. The
purpose of annexing e-mails was to bring them to
the notice of this Court. Petitioner had no
intention to suppress any information. There was
nexus of the then AAG with the Advocate of the
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matrix of the case, investigation made in I-CR.


No. 149/2011 by the State Police cannot be relied
upon as serious allegations made by the petitioner
against the then Chief Minister with respect to the
meeting dated 27.2.2002 require to be looked
into. Petitioner was present in the said meeting
and when he disclosed certain facts against the
then Chief Minister the case has been filed by Mr.
K.D. Panth at the instigation of certain officers of
the State machinery. In the circumstances,
investigation made by the State Police cannot be
fair and impartial investigation and due to the
changed scenario at the national level, even the
CBI cannot be relied upon as pressure may also
be exerted upon the CBI. Thus a Special
Investigation Team (SIT) be formed to make an
investigation under the supervision of this Court.
The investigation is going to have wide
ramifications as to what transpired in the meeting
dated 27.2.2002, notwithstanding the fact that a
charge-sheet has been filed, this Court has ample
power to direct investigation by an independent
agency by forming a Special Investigation Team
of different independent officers. Learned senior
counsel has taken us through various documents
on record including the e-mails to contend that
there had been leakage of SIT reports, SIT itself
has leaked the reports. She has also taken us
through various exchange of e-mails between the
then AAG, Mr. Gurumurthy Swaminathan etc. to
contend that serious contempt of this Court has
been committed by the machinery of the State of
Gujarat which has acted in connivance with the
accused persons. The then AAG has espoused the
cause of the accused persons. Both the FIRs have
been lodged against the petitioner to pressurize
him and recently he has been dismissed from
service also. Learned senior counsel has also
submitted that the amicus curiae appointed by
this Court has observed in his report that certain
aspects pointed out by the petitioner deserve to be
looked into. It was also submitted that Mr. K.D.
Panth, complainant, has been made to turn hostile
against the petitioner. It was submitted that
though the complainant was on leave on
27.2.2002, he joined duty due to the Godhra

Gurumurthy Swaminathan in consultation with


the advocates of the accused persons. Petitioner
has filed various e-mails as Annexures P-33 to P54.
25. Petitioner has submitted in Crl. Misc. Petition
No. 15871/2015 and Crl. Misc. Petition No.
15875/2015 that Mr. K.D. Panth was pressurized
to swear an affidavit before the Executive
Magistrate on 22.6.2011 which was back dated to
17.6.2011 stating that the earlier affidavit given
by the petitioner was obtained under duress at the
behest of the petitioner. The applicant was sacked
from service by the Ministry of Home Affairs on
the recommendations of the Government of
Gujarat on 13.8.2015. Petitioner has also
submitted that he and the then AAG enjoyed
family relations; that is how he had an
opportunity to access the e-mail account. The emails sent by the applicant to the travel agents
regarding visa application, cruise, confirmation of
tickets to Sea World, Santiago, air-tickets, carrental, other travel arrangements, change in travel
plans etc. (A-3 to A-14) have been filed.
26. W.P. (Crl.) No. 204/2011 relates to an FIR
lodged by the then AAG of State of Gujarat at
Vastrapur Police Station registered as II-CR No.
3148/2011 under section 66 of the IT Act
regarding hacking of his e-mail account and
tampering of the same by the petitioner. Prayer
has been made in the writ application to transfer
investigation arising out of the aforesaid crime to
any independent agency like CBI outside the
control of the State Government and in Crl.M.P.
No. 15875/2015. In the changed scenario prayer
has been made to appoint SIT, contempt
proceedings be initiated and additional documents
may also be enquired into. Prayer has also been
made to direct service providers to preserve the emails and/or electronic traces thereof. State
Government has filed an affidavit in reply and
has adopted the counter affidavit dated 8.11.2011
filed in W.P. (Crl.) No. 135/2011.
27. Ms. Indira Jaising, learned senior counsel
appearing for the petitioner in W.P. (Crl.) No.
135/2011 submitted that considering the factual
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incident. He reported for duty in the late afternoon


of 27.2.2002. Learned counsel has relied upon the
affidavit of Mr. K.D. Panth, complainant,
submitted to the amicus curiae. The case of the
petitioner is akin to that of Zahira Sheikh. She
was also made to turn hostile and was forced to
depose falsely. Petitioner has been harassed with

the petitioner. She has relied upon section


2(c)(iii) of the Contempt of Courts Act to contend
that act which interferes or tends to interfere with,
or obstructs or tends to obstruct, the administration
of justice amounts to criminal contempt for which
action be initiated.
28. It was further submitted by learned senior
counsel that counter affidavit of respondent No. 2
discloses sufficient reason to constitute SIT. It
was further submitted that free and fair
investigation is an integral part and [of?] a fair
trial under Article 21 of the Constitution of India
and the petitioner lacks faith in the ability of the
State Government to conduct free and fair
investigation considering the allegations made
against the then AAG of the State, other
Government officials as well as the petitioners
role in disclosing a larger conspiracy implicating
the then Chief Minister in Gujarat riots of 2002.
She has also emphasized on the need for an
inquiry by an independent agency. She has
submitted that in the changed circumstances,
inquiry by CBI is no guarantee of a fair and
impartial investigation. Considering the present
political set up in the country even the then AAG
has become more influential. This Court has
monitored the investigation in several cases and
there is a need for court-monitored investigation.
Court can order an investigation even after
charge-sheet is filed. She has referred to the emails of 2009 and 2010 exchanged between the
then AAG and other incumbents. She has also
submitted that as State of Gujarat in its return has
urged that it is a systematic and larger conspiracy
through petitioner involving top leaders of rival
political party in Gujarat and vested interest
groups, as such State machinery cannot make fair
investigation, hence from averments in reply filed
by State a case is made out to constitute
independent SIT. On a query by this Court, she
has submitted that the petitioner ought to have
disclosed the e-mails on the various occasions
when he made the statement before SIT, filed
affidavit in this Court and was examined by the
Commission. However, disclosure on 29.7.2011
cannot be said to be an afterthought as he was

malicious prosecution as he disclosed about the meeting


on 27.2.2002 and his conversation with the then Chief
Minister of Gujarat. It was further submitted that

the then AAG has not denied the contents of the


e-mails exchanged by him. The then AAG had
voluntarily given password to the petitioner and
there was no question of hacking his e-mail
account as petitioner had close relationship with
him. She has relied upon e-mails A-3 to A-14 to
show that they were jointly enjoying vacations.
Petitioner himself had filed a complaint with the
DIG (Police), Economic Offences Wing, Delhi
Police, regarding hacking of his e-mail account. It
was further submitted by learned senior counsel
that the then AAGs conduct as revealed through
e-mails shows a criminal conspiracy between him
and others in administration of justice which
constitutes offence under the IPC and also
amounts to contempt of court. Hence, it was
submitted that criminal contempt stands
substantiated by the fact that participants in the
correspondence include law officers of the State
of Gujarat, the advocates for the accused in
certain cases and the Government of Gujarat and
a complete outsider to litigation Mr. Gurumurthy
Swaminathan was also consulted by the State of
Gujarat. She has further submitted what was
exchanged between the parties were confidential
documents supposed to be submitted before this
Court as well as the State of Gujarat in criminal
cases and the documents to be filed on behalf of
the State were being shared with individuals who
had no connection with the ongoing legal
proceedings. Even the documents to be filed on
behalf of the accused were being prepared by the
law officers of the State with assistance from
senior officials of the State. Thus, a prima facie
case of criminal contempt has been made out
against the respondent sought to be impleaded by
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investigation. Thus, it was not a secret


information nor contained any sensitive
information as has been tried to be projected by
the petitioner. Investigation stage reports were
part of court records. It was also submitted that
the claim of the petitioner that he was present in
the meeting dated 27.2.2002 is not only
concocted, an afterthought and a flimsy one. The
stand of the petitioner has already been looked
into by the SIT. He has taken us through various
orders and judgments passed by this Court in the
case of Jakia Nasim Ahesan Jafri & Anr. v. State
of Gujarat & Ors., (2011) 12 SCC 302, to
contend that SIT has found the claim of the
petitioner to be incorrect. It was further submitted
by the counsel that the petitioner is trying to reagitate the issue with the help of rival political
party after the court-monitored investigation had
come to fag end and even the allegations made by
the petitioner had been looked into effectively.
He has also contended that the petitioner has not

pushed to the wall by lodging [of] criminal case


against him by Mr. K.D. Panth.
29. Mr. Prashant Bhushan, learned senior counsel
appearing on behalf of the petitioner in W.P.
(Crl.) No.204/2011 has submitted that it is the
fittest case in which SIT investigation should be
ordered by this Court, considering the
ramifications of the allegations made by the
petitioner as to the involvement of the then Chief
Minister of the State of Gujarat and in riots of
2002. It is the bounden duty of this Court to
constitute SIT. Serious criminal conspiracy is
apparent from the exchange of e-mails filed by
the petitioner in W.P. (Crl.) No. 135/2011 to
subvert path of justice. The petitioner had shared
the password due to his affinity with the then
AAG and close family friendship. The
investigation in the case of II-CR No. 3148/2011
cannot be entrusted to the State Police. In the
facts and circumstances, investigation cannot be
entrusted to the State Police or to the CBI. He has
also taken us through the various documents to
take home his submissions.
30. Mr. Ranjit Kumar, learned Solicitor General
appearing for the State of Gujarat has submitted
that considering the overall conduct of the
petitioner, e-mail exchange of the petitioner with
the political party in opposition, NGOs, media
persons and others indicates that the petitioner
has concocted the story as an afterthought and
anyhow or somehow want to keep issue alive.
SIT reports in 9 cases were made available to the
State of Gujarat on 2.3.2009. They were
forwarded by the counsel to the State of Gujarat
on 6.3.2009. On 1.5.2009 this Court had passed
an order disposing of the main matter. In
National Human Rights Commission v. State of
Gujarat & Ors., (2009) 6 SCC 767, this Court
vacated the stay on commencement of the trial. It
was submitted that SIT reports which were made
available to the State of Gujarat, in none of these
reports there was any substance of any
investigation. Reports did not contain confidential
materials. The reports mentioned the action taken
by SIT for filing reports and/or for conducting

come to Court with clean hands, as such he is not


entitled to any indulgence. The e-mail exchange does not
indicate any criminal conspiracy to subvert the course
of justice or criminal contempt of this Court in any
manner. Petitioner is guilty of hacking and tampering
with the e-mail account of the then AAG. Petitioner has
no right to choose investigating agency. The
apprehensions raised by the petitioner are baseless.

Mainly, there has to be a scientific investigation


with respect to the hacking and tampering of email account which can be effectively and fairly
made by State agencies. Charge-sheet in CR. No.
149/2011 has also been filed. It is not shown by
the petitioner how the investigation is tainted.
The petitioner wants to widen the scope of the
inquiry in the cases in question. The inquiry is
limited in both the cases as to whether the
petitioner is guilty of the alleged offences or not.
31. Learned Solicitor General has also taken us
through various e-mails and has contended that in
view of the e-mails exchanged, the petitioner is himself
guilty of committing criminal contempt of this Court.

He has endeavoured to influence the Special


Bench of this Court by exerting pressure by
media and other pressure groups. The affidavit of
petitioner was prepared in consultation and
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deliberation with several persons, groups and


NGOs. In case petitioner was present in meeting dated

hands. His conduct and antecedents are tainted.

He had not only hacked e-mail account but also


tampered with the e-mails for which report has
been lodged. The allegation of criminal
conspiracy which has been levelled is wholly
unwarranted and the conduct of the then AAG
cannot be said to be of committing contempt of
this Court or subverting the course of justice in
any manner whatsoever. It was up to the State to
take the advice of any other individual. All the
main functionaries were put under scanner. In
peculiar facts of the case there was thin line left
due to the accusation against the State and its
functionaries who were subjected to false
accusations. The conduct of the then AAG could
not be said to be improper. The e-mails exchanged

27.2.2002 he would not have kept quiet for 9 years. He


did not state the said fact in 2009 before SIT.

32. Mr. C.S. Vaidyanathan, learned senior


counsel appearing on behalf of SIT submitted that
SIT had been constituted by this Court and its work has
been appreciated. This Court has monitored its
investigation. Petitioner had made unwarranted
allegations against SIT for no good cause. Petitioner has
not stated about the factum of meeting dated 27.2.2002
with the then Chief Minister in his first statement
recorded by SIT in the year 2009. SIT did not

pressurise Mr. K.D. Panth not to support


petitioner when his statement was recorded. On
due investigation made by the SIT, the presence of the
petitioner was not found in meeting dated 27.2.2002.

by the then AAG, Mr. Gurumurthy etc. cannot be said


to be offending and subverting the course of justice
whereas the petitioner himself has tried to influence
independent decision making by this Court as reflected
by his e-mails. Thus, no cause for any indulgence is

The allegation made against SIT of disclosing the


reports is absolutely incorrect. The Member of
the SIT had sent report of Sohrabuddin encounter
case which was not entrusted to SIT but was
looked after by Ms. Geetha Johri, Member, SIT,
in a different capacity of State officer. He has also

made out and the petitions deserve to be


dismissed.
35. The backdrop facts indicate that in the wake
of Godhra incident which took place on
27.2.2002, National Human Rights Commission
filed W.P. (Crl.) 109/2003 in this Court. On
8.6.2006, Ms. Jakia Jafri filed a complaint with
the Director General of Police, Gujarat against 63
persons for commission of offence under section
302 read with section 120-B IPC in relation to
Gujarat riots requesting the complaint to be
registered as an FIR which was refused. Said
Jakia Jafri filed criminal complaint - Special Crl.
Application No. 421/2007 - seeking a direction to
register the case as an FIR vide order dated
2.11.2007. SLP (Crl.) No. 1088/2008 was
preferred by said Jakia Jafri. On 3.3.2008 this
Court issued notice. On 26.3.2008 in National
Human Rights Commission case - W.P. (Crl.) No.

pointed out the antecedents of the petitioner, considering


the overall conduct and track record which is dubious,
no case for interference is made out.

33. Mr. Vikas Singh, learned senior counsel


appearing on behalf of Mr. K.D. Panth has
submitted that charge-sheet has been filed in the
case (CR. No.149/2011) four years before and the
same has not been questioned. Investigation is
over and is based upon scientific investigation
and record of the mobile service providers
buttresses the case of the complainant Mr. K.D.
Panth. The scope of inquiry is limited in the
instant case as to the conduct of the petitioner in
obtaining the affidavit dated 17.6.2011 which he
had handed over to the amicus curiae of this
Court. No case for entrusting the case to any
other agency is made out.
34. Mr. L.Nageshwara Rao, learned senior
counsel appearing on behalf of the then AAG in
W.P. (Crl.) No.204/2011 has submitted that
wholly unwarranted allegations have been made.

Even the family of the then AAG has been attacked in a


brazen manner by the petitioner whose conduct
indicates that he has not come to this Court with clean
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60

I have a serious doubt whether this Godhra incident was a


kind of Indian Reichstag Fire with the only difference
that Muslim fanatics were provoked to commit excesses
and then countered by terrible attacks and annihilation
orgies and would like to know if any articles or theses
or books have been published on this facet. - IMS.

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ISC-183

Panth and Mr. Tarachand Yadav. Petitioner had


arranged advocate for the said purpose and on
18.6.2011 petitioner and Mr. Yadav met amicus
curiae. However, Mr. K.D. Panth did not turn up
for meeting amicus curiae as such his affidavit
dated 17.6.2011 was handed over to him by the
petitioner. Mr. Panth lodged a report against the

109/2003, this Court has passed an order


constituting a Special Investigation Team to
investigate 9 major cases pertaining to Gujarat
riots of 2002. On 27.4.2009 this Court directed
SIT to look into the allegations made into the
complaint of Ms. Jakia Jafri. On 1.5.2009 this
Court vacated the stay of trial of 9 cases and
directed that SIT would continue to monitor the
trial and submit periodic reports every 3 months.
On 30.7.2009, SIT submitted interim report in
Jakia Jafris case. Petitioner was examined by SIT

petitioner as to obtaining the aforesaid affidavit in


illegal manner which had been registered on 22.6.2011
in I-CR. No.149/2011. The statement of the petitioner
was recorded by Justice Nanavati Commission initially
on 16.5.2011. He was also cross-examined on 29.6.2011.

appointed by this Court at Gandhinagar in the context


of Jakia Jafris complaint. The allegation of Jakia Jafri
was that during the period from 27.2.2002 and 10.5.2002
the incidents which took place were committed, abetted
and conspired by some responsible persons in power in
connivance with powerful persons in the State
administration including the police. On 2.2.2010 SIT

36. It is also relevant to mention certain e-mails


which have been placed on record and relied
upon by the respondents so as to contend that
petition has not been filed bona fide. In the
rejoinder filed by the petitioner, the e-mails which
have been referred to in the return filed by the State of
Gujarat have not been controverted or alleged to be
incorrect in any manner by the petitioner. The

had submitted in this Court that further


investigation with respect to Ms. Jakias
complaint was over. On 20.1.2011 amicus curiae

petitioner has annexed full text of some of the emails along with rejoinder. However, substance
of the e-mails remains the same. Though the
petitioner has also mentioned in the rejoinder
affidavit that he has filed complaint with the DIG
(Police), Economic Offences Wing, Delhi Police
regarding unauthorized hacking of his e-mail
account. It is not understandable a senior officer of

appointed by this Court submitted a note on SIT


preliminary enquiry report in Jakia Jafris case. On
15.2.2011 this Court directed SIT to submit its report on
the observations made in the amicus curiae note and
carry out further investigation if required. On

15.3.2011 SIT issued summons to the petitioner


for recording of his statement in connection with
the FIR I CR No. 67/2002 registered at
Meghaninagar Police Station. SIT had recorded
the statement of the petitioner in March, 2011. On

Police like petitioner has filed complaint to Economic


Offences Wing which is not at all concerned with offences
like hacking of e-mails. To avoid embarrassment at

25.3.2011, petitioner had taken Mr. K.D. Panth along


with him as witness to corroborate the fact that
petitioner had attended the fateful meeting at the
residence of the then Chief Minister on the night of
27.2.2002. However, SIT recorded the statement of Mr.
K.D. Panth on 5.4.2011. Mr. Panth did not support the
presence of the petitioner in the meeting dated
27.2.2002. On 14.4.2011 petitioner suo moto had

large, we deem it appropriate to quote only some


relevant portions of the e-mails of petitioner
which have been heavily relied upon. Certain emails were exchanged on 27th and 28th April,
2011 between the petitioner and political leader
of rival party. Petitioner required him to send
copy of the note and even tried to suggest the
points if necessary. Political leader ultimately
sent the packages. Petitioner acknowledged to
have received the item. On 28.4.2011 said
political leader informs the petitioner about date
of hearing in SLP (Crl.) No. 1088/2008 Jakia
Jafris case that the case is not on tomorrows
board and will come up next week and he will be
sending a small note. On 28.4.2011 petitioner had

sent an affidavit to this Court in SLP (Crl.)


No.1088/2008 pointing out SITs conduct
regarding testimony of Mr. K.D. Panth and its
reluctance to record information as to the larger
conspiracy behind 2002 riots. On 5.5.2011 this
Court permitted the amicus to interact with
witnesses. Pursuant thereto, on 17.6.2011
petitioner got prepared the affidavits of Mr. K.D.
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further exchanged e-mail with the said political


leader and has mentioned about a note on points
for arguments in Supreme Court case, allegations
to be made against the members of SIT.
37. Yet another set of e-mails exchanged with
another political leader of rival party in which
there is reference of approaching the high
echelons in the party. On 28.5.2011 petitioner had
sent another e-mail to the said leader asking him
Any progress on the front of Amicus Curiae?
Time is running out. We need to act quickly.
There is another e-mail dated 28.4.2011 petitioner
had sent, reflecting his meeting with other
political leaders of rival party.
38. Petitioner had also sent on 17.5.2011 e-mail
to said incumbent indicating the performance of
the advocate appearing for rival political party
was absolutely pathetic and he has also mentioned
I am under exploited. Petitioner has also exchanged
e-mail with Chairman of Legal Cell of rival
political party. In one of the e-mails petitioner has
mentioned influencing the amicus curiae of this
Court thus:

May be you can mention that I had met him (Sanjiv


Bhatt) on 27th when he was about to go to the
disputed meeting.

The petitioner had sent an e-mail to one of the TV


channels on 19.5.2011 to the following effect:
Filed an affidavit in Supreme Court on 16th May,
saying that he was with me when he had to leave for
CMs meeting on 27th. Kindly confirm through your
sources in Supreme Court.

In one of the e-mails the petitioner even asks


Correspondent whether he would be comfortable
with xxxxxxx? (Names of media persons).
Ultimately, when the reluctance of said
correspondent still persists, the petitioner writes
to him as under :
My feeling is what we could let the press sniff it out
and contact you. It will not make a good story for
them, but, make the print media to take notice of
your affidavit and finally force the hand of amicus
and Supreme Court to take notice and subsequent
affirmative action.

40. Petitioner had also sent other e-mails to few


TV channels. Petitioner has also sent yet another
e-mail to the said correspondent suggesting him
to play the media card. He has stated:

amicus should be calling me on his own in due


course. You can try to mobilize support/pressuregroups in Delhi to influence him in a very subtle
manner.

I think we should play the media card and make it


difficult for the other side. If you fear that amicus
and Supreme Court will not take it seriously then
media trick can be tried. xxx.

39. With respect to the affidavit which was sent


by the petitioner on 14.4.2011, certain e-mails
indicate that he was in constant touch with an
activist of NGO and her senior advocate and
meeting was arranged with said lawyer at
Ellisbridge Gymkhana, Ahmedabad. Petitioner
has also exchanged the affidavit dated 14.4.2011
with a journalist. He has also consulted about the
contents of the affidavit with a journalist who has
suggested addition of a paragraph which appears
to have been incorporated in his corrected
affidavit. Be that as it may. At least it is apparent
that before sending the affidavit dated 14.4.2011
to this Court it was exchanged to invite
suggestions. Petitioner had also suggested the
affidavit of yet another correspondent in order to
support his statement that he had attended the
meeting dated 27.2.2002. Petitioner has sent email to the said correspondent to the effect that
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(2015) 2 LAW

Petitioner was in touch with an activist of the


NGO and was deliberating upon what was to be
stated before Justice Nanavati Commission. The
exchange indicates ghost questions in lead and
cross were prepared and sent to the petitioner.
Said activist has suggested that her lawyer should
spend 2 days with the petitioner to deliberated
ghost questions in lead and cross expecting the
worst so that petitioner is prepared to reply. An
activist writes
what I believed was necessary or is necessary is
having a Lawyer like .. (name of advocate)
spend a few days with you then we prepared
GHOST questions in LEAD and CROSS
expecting the worst and you are prepared to
reply...
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Sanjiv Rajendra Bhatt v. Union of India & Ors. [IND-SC]

41. Petitioner had exchanged yet another e-mail


with another activist of Narmada Bachao
Andolan in which he has mentioned to create a
situation so as to make it difficult for a 3-Judge
Bench of this Court to disregard the shortcomings
of SIT and exerting pressure by the groups and
opinion makers in Delhi. Relevant portion is
quoted below:-

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NGOs., their lawyers tried to play media card,


was being tutored by NGOs. The manner in
which he acted is apparent from the aforesaid emails and need not be repeated. Petitioner had
probably forgotten that he was senior IPS Officer.
In case he was fairly stating a fact after 9 years he
ought not to have entered into the aforesaid
exercise and kept away from all politics and
activism of creating pressure, even upon 3-Judge
Bench of this Court, amicus and many others.
Thus the entire conduct of petitioner indicates that he

What we need to do at this stage is to create a


situation where it would be difficult for three judge
bench hearing ZakiaJaffris SLP 1088 of 2008 to
disregard the shortcomings of SIT under
stewardship of Mr. Raghavan. The Pressure groups
and opinion makers in Delhi can be of great help in
forwarding the cause. I am hopeful that things will
start turning around from next hearing if proper
pressure is maintained at National level.

was not acting bona fide and was catering to the interest
elsewhere. Even if we ignore his antecedents

vividly mentioned in reply of SIT for time being,


his aforesaid conduct does not inspire confidence.

In one of the e-mails written to another President


of NGO, petitioner has referred to rival political
party. He has written :

44. Petitioner has initially in writ petitions prayed for


investigation by CBI or by other independent agency.
In an application for directions filed in 2015, the
petitioner has stated that he has no faith in the CBI

I will take it up with someone in the party and


getting suitably instructed.

also and the cases should be investigated by SIT which


may be constituted by this Court. It was strenuously

The petitioner has sent the e-mails of the then


AAG with to news channels but they decided not
to use them and petitioner had also suggested them
they could also access the e-mail of the then AAG.
42. In e-mail exchange with another officer
indicated that the petitioner was trying to
ascertain location of one Haren Pandya on 27th
night from the said officer. Said officer replied:

urged by learned senior counsel appearing for the


petitioner that considering the ramifications of the
case and also the fact that the petitioner was
present in the meeting dated 27.2.2002 is also to
be looked into. As such it is the duty of this Court
to direct investigation by SIT.
45. We are not impressed by aforesaid submissions. It
cannot be said that the petitioner has come to this Court
with clean hands. Firstly the petitioner kept quiet for a
period of 9 years as to the factum of meeting dated
27.2.2002. Then he was exchanging e-mails for

there is absolutely no question of him being in


Gandhinagar. It appears that the petitioner has

stated that Haren Pandya was also there in CMs


residence on 27.2.2002. Petitioner was also trying
to ascertain the precise time of the meeting in his
e-mail exchange with the said officer. The
petitioner had sent another e-mail to the said
officer. The same is to the following effect: The

ascertaining the time and presence of the persons


at Ahmedabad. In case he was present in the
meeting it was not required of him to ascertain
those facts. Petitioner did not state fact of
meeting dated 27.2.2002 in statement recorded by
SIT in 2009. The explanation offered by the
petitioner for said omission that his statement was
recorded in the year 2011 before SIT under
section 161 Cr.P.C. as such he made all
disclosures. The SIT was same, having same
powers all the time. Petitioner is a senior IPS
officer thus the explanation of the petitioner does
not appear to be prima facie credible.

deposition went well. The cross could have been a little


better. I felt a little under-exploited! Lets hope they
exploit me fully during subsequent hearings.

Petitioner has also exchanged e-mails with others


to recreate his movement on 27.2.2002.
43. The aforesaid exchange of e-mails which are
self-explanatory indicate that the petitioner was in
active touch with leaders of rival political party,
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46. This Court had earlier appointed SIT and


petitioner had made unwarranted and serious
allegations on the SIT constituted by this Court
whose performance has been appreciated by this
Court a number of times. Petitioner after keeping

he was leaving for the meeting dated 27.2.2002.


The e-mails of interactions with journalists, press,
media, NGOs., conduct reflected in e-mails
exchanged during the course of inquiry before
Justice Nanavati Commission, made it clear that he

quiet for 9 years had taken Mr. K.D. Panth with himself
to the SIT on 25.3.2011 and insisted that Mr. Panth
should be examined in his presence. It was not expected
of a senior officer like petitioner to act in the aforesaid
manner. Effort of petitioner to examine Mr. K.D.

has not come to the Court with clean hands. No relief


can be granted if a person approaches this Court with
unclean hands as laid down by this Court in Dalip

Singh v. State of U.P. & Ors. (2010) 2 SCC 114.


47. As per averments made by the petitioner, he

Panth on 25.3.2011 in his presence by SIT was


indicative of pressure tactic employed by him.
The SIT ultimately examined Mr. Panth on
5.4.2011 and Mr. Panth has not supported the stand

accessed the e-mails of the then AAG in the years 2009


and 2010. In case these e-mails were in his
possession, it was the bounden duty of the petitioner
to disclose them at the relevant time in appropriate
proceedings at an appropriate stage but he did not do
so. Even when he has made statement before the

of the petitioner that he attended the meeting dated


27.2.2002. Later on petitioner as per his own case,

got drafted and obtained the affidavit of Mr.


Panth and Mr. Tara Chand Yadav and he had
provided legal assistance to them and had handed
over the affidavit of Mr. Panth to the amicus
curiae appointed by this Court; whereas Mr.
Panth did not turn up to handover his own
affidavit. It is also apparent that the petitioner had
acted in deliberation and consultation with the
leaders of rival political party, NGOs, and had
sent the e-mails to the effect that he was not fully
exploited by a counsel of the rival political party
while his statement was being recorded before
Justice Nanavati Commission. He had exchanged
e-mails with rival political party leaders and was
being tutored by the lawyer of NGO and its
activist. Ghost questions and answers were also
prepared as to what the petitioner was required to
speak before Justice Nanavati Commission.
Petitioner has used the media card, has even sent
the e-mails to influence the judicial proceedings
of a 3-Judge Bench of this Court and has tried to
influence the amicus curiae. The e-mails also
indicate that he tried pressure groups and tried to
invoke media pressure. He sent e-mail account
details of the then AAG to the media channels but
they did not oblige the petitioner as it would not
have been appropriate in their opinion to do so.

SIT on 25.11.2009 and 26.11.2009, it was his


bounden duty to disclose the e-mail of 14.9.2009
in case he was in possession of the same. Apart
from that when the petitioners statement was
recorded by SIT in March, 2011, it was his
bounden duty to hand over e-mails to the SIT and
it was also incumbent upon him to mention the
same in the unsolicited affidavit dated 14.4.2011
which he had filed in SLP (Crl.) No. 1088/2008
Jakia Jafris case but he kept silent as to the emails in the said affidavit. When he made such
sensational disclosures after 9 years, what
prevented him from not disclosing the e-mails
and keeping quiet is inexplicable conduct. In the
statement before Justice Nanavati Commission also
petitioner has failed to state about the e-mails. When

he has sent the e-mails to the effect that his


potential was not fully exploited by rival political
party, what prevented him from stating about the
e-mails before Justice Nanavati Commission also
is not understandable. Learned senior counsel
appearing for the petitioner in response to the
query made by the court why the petitioner kept
quiet as to e-mails on aforesaid occasions, fairly
and rightly conceded that it was the duty of the
petitioner to state on the aforesaid occasions as to
the e-mails but their explanation that petitioner
was ultimately pushed to the wall by registering a
criminal case at the behest of Mr. Panth, then he
disclosed the e-mails, is also not acceptable as the

Petitioner in spite of being a senior IPS officer was


interacting with the top rival political leaders of
Gujarat. He also suggested to a correspondent that

he was required to state that he was present when


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Sanjiv Rajendra Bhatt v. Union of India & Ors. [IND-SC]

petitioners statement before Justice Nanavati


Commission continued even after the date of
registration of offence. The aforesaid explanation
does not appear to be sound one. The petitioner
has filed the e-mails first time in this Court along
with affidavit dated 29.7.2011. This was around
the time when the report as to hacking of e-mail
account and tampering with the e-mails was filed
by the then AAG against the petitioner. The
questions of delay and explanation are ultimately
to be gone into finally in criminal case II-CR. No.
3148/2011, without meaning to decide in present
proceedings, the overall conduct of the petitioner does
not inspire confidence.

ISC-187

appointed for the aforesaid reasons, is too tenuous to be


accepted.

49. This Court on 22.4.2009 had directed SIT to


look into complaint dated 8.6.2006 of Ms. Jakia
Jafri. Apart from that petitioner has himself
appeared before the SIT as per the directions
issued by this Court for further investigation. On
12.5.2010 SIT had examined number of witnesses
and looked into large number of documents and
submitted the report and recommended further
investigation under section 173(8) Cr.P.C. against
certain police officials and a Minister in the State
Cabinet who was ultimately tried also. The SIT
conducted further investigation and submitted its
report dated 17.11.2010 before this Court. On
20.1.2011 learned amicus curiae appointed by
this Court submitted a preliminary report. This
Court on 15.3.2011 directed Chairman, SIT to
look into the observations made by the learned
amicus curiae and to carry out further
investigation if necessary in the light of the
suggestions made by amicus curiae. Thereafter
on 21.3.2011, 22.3.2011 and 25.3.2011 the
petitioner was examined by the SIT and Mr. K.D.
Panth on 6.4.2011. The petitioner had sent an
unsolicited affidavit on 14.4.2011 to this Court
which was not taken on record. Petitioner was
also summoned by Justice Nanavati Commission
on 27.4.2011. The SIT conducted further
investigation under section 173(8) in the Gulberg
Society case and submitted its report on
24.4.2011. This Court examined the report dated
24.4.2011 submitted by SIT and directed on
5.5.2011 that a copy of the same be supplied to
the learned amicus curiae who shall examine the
reports of the SIT and make an independent
assessment of the witnesses statements recorded
by the SIT and submit his comments thereon and
also observed that it would be open to the learned
amicus curiae to interact with any of the witnesses
who have been examined by SIT including the
Police officers. Thereafter, the petitioner had
appeared before the amicus curiae on 18.6.2011
and handed over disputed affidavit dated
17.6.2011 of Mr. K.D. Panth who failed to turn
up before the amicus curiae. On 25.7.2011

48. It was submitted on behalf of the petitioner


that since he was present in the meeting dated
27.2.2011 and this aspect is material for the cases
in question, as such considering ramifications,
this Court should direct investigation by SIT into
the aforesaid allegations. We are not ready to
accept the submission for various reasons. Firstly
the scope of inquiry in the case I-CR. No. 149/
2011 on the basis of the complaint lodged by Mr.
K.D. Panth is whether his affidavit was obtained
by the petitioner under coercion and in the
circumstances narrated by him in the First
Information Report. This aspect is not required to
be gone into and decided in this case whether the
petitioner was present in the meeting dated
27.2.2002 and what transpired in that meeting.
That is not the issue within the ambit and scope
of I-CR. No.149/2011. It is simply a case in
which question has to be gone into whether the
affidavit dated 17.6.2011 was obtained by the
petitioner in the circumstances alleged by Mr.
K.D. Panth and after taking him to political
luminaries of rival party and whether they were
involved in preparation/drafting of the same.
Similarly in the case of hacking of e-mail account
also the aforesaid question cannot be said to be
open for investigation at all considering the scope
of the complaint lodged by the then AAG. Thus
the submission made by the petitioner to sensationalise
the issue by widening the scope of inquiry of the
aforesaid two cases and that SIT is required to be
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Sanjiv Rajendra Bhatt v. Union of India & Ors. [IND-SC]

10. Accordingly, we direct the Chairman, SIT to


forward a final report, along with the entire
material collected by SIT, to the court which had
taken cognizance of Crime Report No. 67 of
2002, as required under Section 173(2) of the
Code. Before submission of its report, it will be
open to SIT to obtain from the amicus curiae
copies of his reports submitted to this Court. The
said court will deal with the matter in accordance
with law relating to the trial of the accused,
named in the report/charge-sheet, including
matters falling within the ambit and scope of
Section 173(8) of the Code.
11. However, at this juncture, we deem it
necessary to emphasise that if for any stated
reason SIT opines in its report, to be submitted in
terms of this order, that there is no sufficient
evidence or reasonable grounds for proceeding
against any person named in the complaint dated
8-6-2006, before taking a final decision on such
closure report, the court shall issue notice to
the complainant and make available to her copies
of the statements of the witnesses, other related
documents and the investigation report strictly in
accordance with law as enunciated by this Court
in Bhagwant Singh v. Commr. Of Police, (1985)
2 SCC 537. For the sake of ready reference, we
may note that in the said decision, it has been
held that in a case where the Magistrate to whom a

amicus curiae submitted his final report before


this Court. SIT had prepared a final report in the
aforesaid matter and this court on 12.9.2011
disposed of Jakia Jafris case (supra), and
directed the Chairman, SIT to file the final report
along with the entire material collected by SIT to
the court which had taken cognizance of Crime
No.67/2002 in terms of Section 173(2) Cr.P.C.
Thereafter, SIT in compliance of the order dated
12.9.2011 has filed the final report before the
competent court in Sessions Case No. 152/2002.
50. The SIT in its report submitted to the trial court
had come to the conclusion that the claim of the
petitioner that he was present on 27.2.2002 in meeting
held at the residence of the then Chief Minister is not
correct. The SIT has made the investigation into

the aforesaid aspect and SIT in its counter


affidavit has also clearly stated that it was found
after investigation that the petitioner was not
present in the meeting dated 27.2.2002. Thus with
respect to the investigation into aforesaid aspect,
the matter stands concluded as to the petitioners
presence in the meeting dated 27.2.2002. That
investigation had been made by the SIT
appointed by this Court and there is absolutely no
basis now to order constitution of a fresh SIT to
look into the aforesaid aspect. This Court in Jakia
Jafris case (supra) has observed as follows:

report is forwarded under Section 173(2)(i) of the Code,


decides not to take cognizance of the offence and to drop
the proceedings or takes a view that there is no sufficient
ground for proceeding against some of the persons
mentioned in the FIR, the Magistrate must give notice to
the informant and provide him an opportunity to be
heard at the time of consideration of the report.

9. We are of the opinion that bearing in mind


the scheme of Chapter XII of the Code, once the
investigation has been conducted and completed
by SIT, in terms of the orders passed by this
Court from time to time, there is no course
available in law, save and except to forward the
final report under Section 173(2) of the Code to
the court empowered to take cognizance of the
offence alleged. As observed by a three-Judge
Bench of this Court in M.C. Mehta (Taj Corridor
Scam) v. Union of India, (2007) 1 SCC 110, in
cases monitored by this Court, it is concerned
with ensuring proper and honest performance of
its duty by the investigating agency and not with
the merits of the accusations in investigation,
which are to be determined at the trial on the
filing of the charge-sheet in the competent court,
according to the ordinary procedure prescribed
by law.
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(2015) 2 LAW

12. Having so directed, the next question is


whether this Court should continue to monitor
the case any further. The legal position on the
point is made clear by this Court in Union of
India v. Sushil Kumar Modi, (1998) 8 SCC 661,
wherein, relying on the decision in Vineet Narain
v. Union of India, (1996) 2 SCC 199, a Bench of
three learned Judges had observed thus: (Sushil
Kumar Modi case (supra), SCC p. 662, para 6)
6. that once a charge-sheet is filed in the
competent court after completion of the
investigation, the process of monitoring by this
Court for the purpose of making CBI and other
investigative agencies concerned perform their
function of investigating into the offences concerned

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Sanjiv Rajendra Bhatt v. Union of India & Ors. [IND-SC]

comes to an end; and thereafter it is only the court


in which the charge-sheet is filed which is to deal
with all matters relating to the trial of the accused,
including matters falling within the scope of Section
173(8) of the Code of Criminal Procedure. We

ISC-189

It is unfortunate that on the one hand petitioner has


prayed for appointment of SIT and on the other has not
spared SIT appointed by this Court and has made false
allegations against it. The conduct of the petitioner
cannot be said to be desirable.
52. Coming to the question whether the
investigation into the allegations made in I-CR.
No. 149/2011 requires investigation by the SIT.
There are various reasons for which SIT
investigation is not warranted at all in the
aforesaid case. The scope of the case is only
whether the petitioner had obtained the affidavit
of Mr. K.D. Panth in an illegal manner for which
offence case has been registered. In the case
charge-sheet has already been filed after
investigation by the concerned police to the
competent court. In the counter affidavit filed by
respondent No.4, charge-sheet has been placed on
record, the statements of various witnesses have
been recorded including the scientific evidence of
mobile-tower, laptop etc. Statements of eye
witnesses under section 164 Cr.PC have also been
recorded. Mobile record of the petitioner and the
complainant clearly indicate the exchange of calls
between petitioner and co-accused during the
relevant period. It is also found that the mobile
tower location received from the service
providers with respect to complainants mobile
and petitioners mobile established that the
complainant was present at the residence of the
petitioner at the time stated in the FIR and mobile
tower location of rival political luminaries and
advocate who happens to be the Chairman of
Legal Cell of rival political party. Laptop of the
said advocate was seized and laboratory had
confirmed that affidavit was prepared on the
same. We make no comment on the investigation
and the charge-sheet which has been filed as on
ultimate trial, the facts have to be gone into and
decided. Once the charge-sheet has been filed to
the knowledge of the petitioner before 4 years, it
has not been questioned and no attempt has been
made by the petitioner to indicate how the
investigation is unfair and incomplete or in any of
the other aspects investigation is required.
Credibility of the investigation is not the subject

make this observation only to reiterate this


clear position in law so that no doubts in any
quarter may survive.

51. The petitioner has also made allegations


against the SIT to the effect that on 14.9.2009 he
came across from two e-mails received from the
official e-mail address of the SIT from the inbox
of the then AAG of Gujarat when he was
accessing the former e-mails. Thus he has
accused the SIT of leaking reports to the then
AAG. However, position has been made clear by the
State of Gujarat and SIT in the counter affidavits. In
our opinion, the allegation that the SIT had been
leaking very sensitive and confidential details pertaining
to the ongoing investigation is totally false and baseless.

Two e-mails referred to by the petitioner were


sent by Ms. Geetha Zohri, IPS, Additional DG of
Police, and the then Convener of SIT from the email of SIT for Godhra cases to the then AAG.
Both these e-mails were related to the investigation done
in the year 2005 in the Sohrabuddin encounter case by
the State Police (Crime) of which Ms. Geetha Zohri IG
(Crime) was in-charge. She wrongly used the e-mail ID
of Godhra cases at her cost to transmit these
information pertaining to CID (Crime) to the then
AAG. That information absolutely had nothing to do
with the matters pending investigation/inquiry/ trial
with the Supreme Court-appointed SIT for Godhra
cases. Petitioner had made deliberate attempt to

mislead this Court and has enclosed only the


covering text of the e-mails and intentionally
avoided the enclosures because the same would
have exposed falsity of his stand. The two e-mails
dated 14.2.2009 sent by Ms. Geetha Zohri to the
then AAG have been filed along with the
enclosures by SIT. A report in this regard had
already been submitted by SIT to this Court on
23.2.2011. Thus the petitioner is guilty of suppressio
veri and suggestio falsi. He has suppressed the
enclosures which he ought to have filed and
ought not to have made false allegations in the
writ petition that SIT was exchanging sensitive
and confidential information with the then AAG.
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Sanjiv Rajendra Bhatt v. Union of India & Ors. [IND-SC]

matter at this stage. It has to be gone into during


the course of trial. The petitioner has
unnecessarily tried to widen the scope of the case
and no case is made out so as to direct
investigation in CR. No. 149/2011 by SIT into the
circumstances in which affidavit dated 17.6.2011
of Mr. K.D. Panth has been obtained. Once the

Union of India & Anr. v. W.N. Chadha, (1993)


Supp 4 SCC 260, Ms. Mayawati v. Union of India
& Ors., (2012) 8 SCC 106, Dinubhai Boghabhai
Solanki v. State of Gujarat, (2014) 4 SCC 626,
CBI v. Rajesh Gandhi, (1996) 11 SCC 253,
Competition Commission of India v. SAIL & Anr.,
(2010) 10 SCC 744, and Janta Dal v. H.S.
Choudhary, (1991) 3 SCC 756.
55. Learned senior counsel appearing for the
petitioner has placed reliance on the decision in
Babubhai v. State of Gujarat, (2010) 12 SCC
254, wherein it was held as follows :

charge-sheet has been filed the court has to proceed in


accordance with law in the matter.

53. It was also submitted on behalf of learned


counsel for the petitioner that counter affidavit
filed in W.P. (Crl.) No. 135/2011 discloses
sufficient reason to constitute SIT in which in the
reply filed by respondent No. 2 it has been
mentioned that there is no room for doubt that it
is a systematic and larger conspiracy through the
petitioner of rival political party in Gujarat and
vested interest groups surviving on anti-Gujarat
campaign all of whom had started efforts to keep
the Godhra riot issue live based on concocted
facts and the petitioner, through all of them, is
trying to build up a story at a stage when after
almost 10 long years this Court has virtually
concluded the judicial proceedings after
undertaking tremendous judicial exercise. In our
opinion, by the aforesaid averment in the reply no

45. 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 an investigation in tainted
and biased manner. Where non-interference of the
Court would ultimately result in failure of justice, the
Court must interfere.

56. Learned senior counsel has placed reliance on


Zahira Habibulla Sheikh v. State of Gujarat,
(2004) 4 SCC 158, Rubabbuddin Sheikh v. State
of Gujarat & Ors., (2010) 2 SCC 200, Narmada
Bai v. State of Gujarat & Ors., (2011) 5 SCC 79,
CBI v. Amitbhai Anilchandra Shah, (2012) 10
SCC 545. In cases related to Best Bakery,
Sohrabuddin encounter etc., considering the
nature of the case, appropriate directions were
issued by this Court for conducting impartial
investigation by CBI or other independent
agency. However, SIT constituted by this Court has

case is made out for investigation by the SIT into I-CR.


No. 149/2011 relating to preparation of affidavit or for
that matter in II-Crime No. 3148/ 2011 relating to
hacking of e-mail account and tampering with it. These
are not such cases of wide amplitude so as to warrant
SIT to be constituted or even the CBI to be entrusted
with the investigation. It is not for the petitioner to
choose the investigating machinery as held by this

Court in Sakiri Vasu v. State of U.P. & Ors.,


(2008) 2 SCC 409, thus:

already investigated into the main cases and the scope of


cases in hand is not so wide in magnitude so as to direct
the SIT or CBI to investigate into the matters.

10. It has been held by this Court in CBI. v.


Rajesh Gandhi [(1996) 11 SCC 253, (vide para 8)]
that no one can insist that an offence be investigated by
a particular agency. We fully agree with the view
in the aforesaid decision. An aggrieved person can

57. It was submitted by learned senior counsel


that there is a need for investigation by an
independent agency when the local police officials
and State officials are involved. For that, learned
senior counsel has relied upon R.S. Sodhi,
Advocate v. State of U.P. & Ors., (1994) Supp 1
SCC 143, as follows :

only claim that the offence he alleges be investigated


properly, but he has no right to claim that it be
investigated by any particular agency of his choice.

54. The accused has no right with reference to the


manner of investigation or mode of prosecution.
Similar is the law laid down by this Court in
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(2015) 2 LAW

2. we think that since the accusations are


directed against the local police personnel it
68

(2015) 2 LAW

Sanjiv Rajendra Bhatt v. Union of India & Ors. [IND-SC]

would be desirable to entrust the investigation to


an independent agency like the Central Bureau of
Investigation so that all concerned including the
relatives of the deceased may feel assured that an
independent agency is looking into the matter
and that would lend the final outcome of the
investigation credibility. However faithfully the local

ISC-191

Principal Secretary & Ors. [(2014) 2 SCC 532].


Reliance was also placed on NHRC v. State of
Gujarat [(2009) 6 SCC 342] and Ram Jethmalani
& Ors. v. Union of India & Ors. [(2011) 8 SCC
1] to constitute SIT. Relevant extracts of Vineet
Narain (supra) are quoted below :
2. The gist of the allegations in the writ petition
is that government agencies, like the CBI and the
Revenue authorities, have failed to perform their
duties and legal obligations inasmuch as they
have failed to properly investigate matters arising
out of the seizure of the so called "Jain Diaries"
in certain raids conducted by the CBI. It is
alleged that the apprehending of certain terrorists
led to the discovery of financial support to them by
clandestine and illegal means, by use of tainted
funds obtained through 'hawala' transactions; that
this also disclosed a nexus between several
important politicians, bureaucrats and criminals,
who are all recipients of money from unlawful
sources given for unlawful considerations; that
the CBI and other government agencies have
failed to fully investigate into the matter and take
it to the logical end point of the trial and to
prosecute all persons who have committed any
crime; that this is being done with a view to
protect the persons involved, who are very
influential and powerful in the present set up;
that the matter discloses a definite nexus between
crime and corruption in public life at high places
in the country which poses a serious threat to the
integrity, security and economy of the nation;
that probity in public life, to prevent erosion of
the rule of law and the preservation of
democracy in the country, requires that the
government agencies be compelled to duly
perform their legal obligations and to proceed in
accordance with law against each and every
person involved, irrespective of the height at
which he is placed in the power set up.
3. The facts and circumstances of the present
case do indicate that it is of utmost public
importance that this matter is examined
thoroughly by this Court to ensure that all
government agencies, entrusted with the duty to
discharge their functions and obligations in
accordance with law, do so, bearing in mind
constantly the concept of equality enshrined in
the Constitution and the basic tenet of rule of law

police may carry out the investigation, the same will lack
credibility since the allegations are against them. It is
only with that in mind that we having thought it both
advisable and desirable as well as in the interest of
justice to entrust the investigation to the Central Bureau
of Investigation forthwith and we do hope that it

would complete the investigation at an early date


so that those involved in the occurrences, one
way or the other, may be brought to book. We
direct accordingly. In so ordering we mean no
reflection on the credibility of either the local police or
the State Government but we have been guided by the
larger requirements of justice.

R.S. Sodhi was a case of fake encounter killings. The


case in hand is not such and this Court has
already appointed SIT which has looked into
various allegations raised by Ms. Jakia Jafri in the
course of which petitioner had been examined
and his stand regarding meeting dated 27.2.2002
has not been found to be correct. Whether there is
hacking of e-mail account in II-CR. No.
3148/2011 and tampering with e-mails,
investigation is to be based on the scientific
evidence. It cannot be said that merely because
report has been lodged by the then AAG of the
State, investigation is not going to be fair or
impartial. More so, when it is to be based on the
scientific evidence and in case investigation is not
fair or not made into all the aspects it would be
open to the petitioner to question it at an
appropriate time before an appropriate forum in
accordance with law.
58. To constitute SIT, learned senior counsel has
also relied upon Vineet Narain & Ors. v. Union of
India & Ors. [(1996) 2 SCC 199], Union of India
& Ors. v. Sushil Kumar Modi [(1998) 8 SCC
661], M.C. Mehta v. Union of India [(2007) 1
SCC 110], Centre for Public Interest Litigation &
Ors. v. Union of India & Ors. [(2011) 1 SCC
560], Shahid Balwa v. Union of India & Ors.
[(2014) 2 SCC 687], Manoharlal Sharma v.
69

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Sanjiv Rajendra Bhatt v. Union of India & Ors. [IND-SC]

62. Coming to question whether criminal


contempt proceedings to be initiated, as prayed,
learned senior counsel appearing for petitioner has

: "Be you ever so high, the law is above you".


Investigation into every accusation made against
each and every person on a reasonable basis,
irrespective of the position and status of that
person, must be conducted and completed
expeditiously. This is imperative to retain public
confidence in the impartial working of the
government agencies.

heavily relied upon e-mail exchanges filed by petitioner


allegedly from e-mail account of the then AAG with
respect to which offence CR. No. 3148/2011 under
section 66 of the IT Act has been registered. The

allegation against petitioner is of hacking of


account and tampering with e-mails with respect
to which an FIR has been filed, without meaning
to deciding the correctness of the e-mails they are
being looked into only for the purpose whether
criminal contempt of the Court has been
committed.
63. It was submitted by learned senior counsel for

4. In this proceeding we are not concerned with


the merits of the accusations or the individuals
alleged to be involved, but only with the
performance of the legal duty by the government
agencies to fairly, properly and fully investigate
into every such accusation against every person,
and to take the logical final action in accordance
with law.

petitioner that there was criminal nexus between the


then AAG with lawyers of the accused, Ministers and
non-State actors to undermine the administration of
justice. It was submitted that certain replies etc.

59. We have already discussed nature of cases in


hand applying aforesaid principles. No case is
made out to constitute SIT. No doubt about it be
you ever so high the law is above you is a well
accepted principle but in the instant case the
conduct of the petitioner cannot be said to be
above board. Neither it can be said that he has
come to the court with clean hands. Petitioner
was a high ranking officer but he too cannot be
said to be above law. He must undergo the
investigation as envisaged by law in case he has
committed the offences in question.

which were to be filed in court were shown to


Mr. G. Swaminathan who was completely
outsider to the litigation. In our opinion merely
taking somebodys opinion who is outsider to litigation
before filing the reply in the court would not undermine
the administration of justice in any way and is not
indicative of criminal conspiracy. There are

knowledgeable incumbents who can always be


consulted and their opinion obtained. There is
nothing improper in it. If some reply/petition was
to be filed in Gujarat court and the same was
shown to the said gentleman for his opinion it
would not subvert the course of justice in any
manner. When certain pleading is to be filed in court

60. There is no need to monitor the case any


further as this Court has already laid down in
Jakia Jafris case (supra) that once charge-sheet
has been filed it is not necessary for Court to
monitor the case and the case of hacking of e-mail

there is no legal bar on consultation with the


appropriate persons of confidence or having requisite
knowledge. It was submitted by the petitioner that

account is not such which needs any investigation by


SIT or CBI or courts monitoring.

certain affidavit was sent to the said person in


which he has suggested certain paragraphs to be
incorporated but the learned Solicitor General has
shown actual affidavit filed in the case in which
alterations suggested by the said person were not
actually inserted.
64. It was also submitted that 9 SIT reports were
sent to Mr. G. Swaminathan in 2010. These
reports were submitted by SIT on 11.2.2009 in
this Court and copies thereof were ordered to be
handed over to the State of Gujarat on 2.3.2009.

61. It was also submitted that the Court can


transfer investigation after charge-sheet is filed.
That can be done only in extraordinary cases.
Considering the scope and ambit of enquiry in
both the cases, the submission based upon
Rubabbuddin Sheikh (supra), Narmada Bai
(supra), State of Punjab v. Central Bureau of
Investigation & Ors. [(2011) 9 SCC 182] and
Bharati Tamang v. Union of India & Anr. [(2013)
15 SCC 578] is untenable.
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Sanjiv Rajendra Bhatt v. Union of India & Ors. [IND-SC]

On 6.3.2009 the reports were made available to


the counsel appearing for the State of Gujarat.
They were in turn forwarded to the State
authorities. This Court has passed an order on
1.5.2009
in
National
Human
Rights
Commissions case (supra) vacating the stay on
commencement of trial. In the reports which had
been placed on record by petitioner only the
action taken by SIT was mentioned and the stage
of investigation or need for conducting further
investigation. These reports did not contain
material/finding for or against any accused person
hence no advantage could be derived therefrom
by any accused person. They did not contain such
material disclosure of which may subvert the
course of justice. No case is made out of criminal
conspiracy and criminal contempt or otherwise. It

ISC-193

tantamount to criminal contempt unless and until it


is shown that the information was intended to help the
accused in any manner whatsoever, it cannot be said
that sharing of information tantamount to criminal
contempt.
66. Learned counsel for the petitioner has placed
reliance upon a decision of this Court in
Rachapudi Subba Rao v. Advocate General,
Andhra Pradesh [(1981) 2 SCC 577] in which as
to criminal contempt, it has been laid down thus:
14. It is noteworthy, that in the categorization of
contempt in the three sub-clauses (i) to (iii), only
category (ii) refers to judicial proceeding.
Scandalizing of court in its administrative
capacity will also be covered by sub-clauses (i)
and (iii). The phrase administration of justice
in sub-clause (iii) is far wider in scope than
course of any judicial proceeding. The last
words in any other manner of sub-clause (iii)
further extend its ambit and give it a residuary
character. Although sub-clauses (i) to (iii) describe

cannot be culled out how the course of justice has been


subverted by the aforesaid disclosure of SIT reports.

Thus charge of criminal contempt cannot be said


to be taken home successfully. Petitioner has not

three distinct species of criminal contempt, they are


not always mutually exclusive. (emphasis ours)

been able to substantiate that the aforesaid actions


interfered or obstructed in the administration of justice
in any manner. Petitioner was not able to establish

67. This Court has considered what constitutes


criminal contempt in Dr. D.C. Saxena v. Honble
the Chief Justice of India [(1996) 5 SCC 216] and
has laid down the aforesaid criteria thus:

how the reports could be of any help to anybody


so as to subvert the course of justice or action
otherwise amounts to interference with
administration of justice. The petitioner has
himself obtained these SIT reports, as per the
then AAG allegedly in illegal manner whereas as
per petitioner by sharing the e-mails of the then
AAG. If they were meant to be confidential
petitioner has also used them and even sent email particulars of the then AAG to media
channels. Therefore the submission advanced
does not lie in his mouth. Overall exchange has to
be considered in the light of sweeping
accusations against the State and its large number
of functionaries. The conduct of the then AAG in the

38. The contempt of court evolved in common


law jurisprudence was codified in the form of the
Act. Section 2(c) defines criminal contempt
which has been extracted earlier. In A.M.
Bhattacharjee case [1995 (5) SCC 457] relied on
by the petitioner himself, a Bench of two Judges
considered the said definition and held that
scandalising the court would mean any act done
or writing published which is calculated to bring
the court or judges into contempt or to lower its
authority or to interfere with the due course of
justice or the legal process of the court. In para
30, it was stated that scandalising the court is a
convenient way of describing a publication
which, although it does not relate to any specific
case either past or pending or any specific Judge,
is a scurrilous attack on the judiciary as a whole,
which is calculated to undermine the authority of
the courts and public confidence in the
administration of justice. Contempt of court is to
keep the blaze of glory around the judiciary and

circumstances he was placed, has been unnecessarily


adversely commented upon, the accusation of criminal
contempt is not at all made out.

65. Merely sending some representation which


was to be submitted to the President and Prime
Minister of India, and other documents to an
advocate who was a politician also would not
71

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Sanjiv Rajendra Bhatt v. Union of India & Ors. [IND-SC]

duties amounts to contempt. The gravamen of the


offence is that of lowering his dignity or authority or
an affront to the majesty of justice. When the

to deter people from attempting to render justice


contemptible in the eyes of the public. A libel
upon a court is a reflection upon the sovereign
people themselves. The contemnor conveys to
the people that the administration of justice is
weak or in corrupt hands. The fountain of justice
is tainted. Secondly, the judgments that stream
out of that foul fountain are impure and
contaminated. In Halsburys Laws of England
(4th Edn.), Vol. 9, para 27 at page 21 on the topic
Scandalising the Court it is stated that
scurrilous abuse of a judge or court, or attacks on
the personal character of a judge, are punishable
contempts. The punishment is inflicted, not for
the purpose of protecting either the court as a
whole or the individual judges of the court from
a repetition of the attack, but of protecting the
public, and especially those who either
voluntarily or by compulsion are subject to the
jurisdiction of the court, from the mischief they
will incur if the authority of the tribunal is
undermined or impaired. In consequence, the
court has regarded with particular seriousness
allegations of partiality or bias on the part of a
judge or a court. On the other hand, criticism of a
judges conduct or of the conduct of a court,
even if strongly worded, is not a contempt
provided that the criticism is fair, temperate and
made in good faith, and is not directed to the
personal character of a judge or to the
impartiality of a judge or court.

contemnor challenges the authority of the court,


he interferes with the performance of duties of
judges office or judicial process or
administration of justice or generation or
production of tendency bringing the judge or
judiciary into contempt. Section 2(c) of the Act,
therefore, defines criminal contempt in wider
articulation that any publication, whether by
words, spoken or written, or by signs, or by
visible representations, or otherwise of any
matter or the doing of any other act whatsoever
which scandalises or tends to scandalise, or
lowers or tends to lower the authority of any
court; or prejudices, or interferes or tends to
interfere with, the due course of any judicial
proceeding; or interferes or tends to interfere
with, or obstructs or tends to obstruct, the
administration of justice in any other manner, is
a criminal contempt.
Therefore, a tendency to scandalise the court or
tendency to lower the authority of the court or tendency
to interfere with or tendency to obstruct the
administration of justice in any manner or tendency to
challenge the authority or majesty of justice, would be a
criminal contempt. The offending act apart, any

tendency if it may lead to or tends to lower the


authority of the court is a criminal contempt. Any
conduct of the contemnor which has the tendency or
produces a tendency to bring the judge or court into
contempt or tends to lower the authority of the court
would also be contempt of the court. (emphasis supplied)

40. Scandalising the court, therefore, would mean


hostile criticism of judges as judges or judiciary. Any

68. This Court in Rizwan-Ul-Hasan & Anr. v.


State of U.P. [AIR 1953 SC 185] has laid down
that judicial contempt is not to be invoked unless
there is real prejudice which can be regarded as a
substantial interference with due course of justice
and the Court will not exercise its jurisdiction
upon a mere question of propriety. This Court has
laid down thus:

personal attack upon a judge in connection with


the office he holds is dealt with under law of
libel or slander. Yet defamatory publication
concerning the judge as a judge brings the court
or judges into contempt, a serious impediment to
justice and an inroad on the majesty of justice.
Any caricature of a judge calculated to lower the
dignity of the court would destroy, undermine or
tend to undermine public confidence in the
administration of justice or the majesty of justice.
It would, therefore, be scandalising the judge as a
judge, in other words, imputing partiality,

10. the jurisdiction in contempt is not to be


invoked unless there is real prejudice which can be
regarded as a substantial interference with the due
course of justice and that the purpose of the Court's
action is a practical purpose and it is reasonably
clear on the authorities that the Court will not

corruption, bias, improper motives to a judge is


scandalisation of the court and would be contempt of
the court. Even imputation of lack of impartiality or
fairness to a judge in the discharge of his official

Law Animated World, 15 October 2015

(2015) 2 LAW

exercise its jurisdiction upon a mere question of


propriety.

72

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ISC-195

Rajasthan State Road Transport Corporation v. Alexix Sonier & Ors. [IND-SC]

69. Considering the aforesaid decisions, it does


not appear that the e-mail exchange between the
then AAG and other functionaries tantamounts to
causing prejudice or amounts to substantial
interference in any other manner in due course of
justice. It is not the case of scandalizing the court
or in any manner affecting fair decision of the
court or undermining the majesty of the Court/
peoples confidence in the administration of
justice or bringing or tending to bring the court
into disrepute or disrespect which tantamount to
criminal contempt under section 2(c)(iii) of the
Contempt of Courts Act.
70. Apart from that prayer to initiate criminal
contempt on the basis of documents filed on
29.7.2011 has been made in the applications for
directions Crl.M.P. Nos. 15871/2015 and
15875/2015 filed in 2015. On merits we have not
found any case is made out of criminal contempt.
Besides it is also clear that the prayer is also
barred by limitation. One year limitation is provided

(2015) 2 LAW ISC-195

SUPREME COURT OF INDIA


AT NEW DELHI
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 2967 of 2012
Date of Judgment: Thursday, 8 October 2015
Rajasthan State Road
Transport Corporation

Appellant(s)

Respondent(s).

Versus

Alexix Sonier & Ors.

WITH CIVIL APPEAL Nos. 9944-9946 of 2011

Citation: (2015) 2 LAW ISC-195


CORAM:

RANJAN GOGOI, J.
R.K. AGRAWAL, J.
***
Short Notes:

under section 20 of the Contempt of Courts Act. Both


applications are hopelessly barred by limitation so as to
initiate contempt.

STATUTORY LAW AND MOTOR ACCIDENTS


COMPENSATION The High Court Award confirmed
but the life-long costs claimed for attendant at a total of Rs.
10 lakhs additionally sanctioned The High Court has

71. Resultantly, the writ petitions and Crl. Misc.


Petition Nos. 15871/2015, 15874/2015, 15875/
2015, 15877/2015 and other petitions are
dismissed. Since there was interim stay, as
charge-sheet has been filed in I-CR. No. 149/
2011, let trial court proceed further in accordance
with law, and investigation in II-CR. No. 3148/
2011 be made expeditiously in accordance with
law. No costs.
*****

correctly held that the bus was driven rashly and


negligently and at a very fast speed. Therefore, the
question of accident being a result of contributory
negligence does not arise. As for the amount of
damages/award in respect of Medi-Cal, in the State
of California, there is a Scheme under which persons
who are not covered under any insurance scheme like
claimant are extended medicare facilities for which no
payment is to be made by such persons and only the
amount received as reimbursement has to be handed
over to the Medi-Cal Department. Here we find that
the Medi-Cal Dept has already incurred expenses for
the treatment of the claimant. It will be very difficult
to keep a track as to whether the amount awarded
under this head would be paid over to the Medi-Cal
Department or not; so, the High Court was justified in
modifying the award of the Tribunal by disallowing
US$125,348.01 under the category Special Damages
relating to the Medi-Cal. However, we find that the
claimant had claimed a sum of Rs. 10 lakhs for

PLEASE NOTE
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of the journal and for publication in it we request
scholarly articles on any aspect of Socio-economic
Justice in post-colonial India or New concepts and
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us on or before 30 October 2015. - I.M. Sharma, Editor.

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73

Courtesy: Supreme Court of India at http://judis.nic.in/;


emphases in bold ours - IMS.
Law Animated World, 15 October 2015

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Rajasthan State Road Transport Corporation v. Alexix Sonier & Ors. [IND-SC] (2015) 2 LAW

keeping an attendant for the entire life. The Tribunal/


High Court had not given any amount under the said
head; we hold that the claimant is entitled for a sum of
Rs. 10 lakhs + interest at 6% p.a. from the date of the
claim petition till the date of actual payment, towards
expenses for keeping an attendant for the rest of his
life to look after him.
- Paras 13-14, pp. ISC-199/200.

speed, came and struck the claimant from behind.


As a result of which, the claimant fell down on
the road and became unconscious and sustained
injuries in the said accident. The claimant was
taken to the Sawai Man Singh Hospital, Jaipur
where it was found that among other injuries he
had also received head injury. Three surgical
operations were performed on the claimant,
however, he did not regain consciousness. On
medical advice, the claimant was shifted to
Vadilal Sarabhai Hospital, Ahmedabad, Gujarat
and despite all possible efforts, the condition of
the claimant did not improve. He was discharged
from the hospital at Ahmedabad on 22.04.1988
and shifted by air, under medical supervision of
the doctors, to the United States of America. The
claimant, through his next friend - Mrs.
Dominique Sonier - his mother, filed a claim
petition through an authorized person viz.,
Surendra Nath Singh Javeria. Mrs. Dominique
Sonier-mother of the claimant also joined the said
claim petition through that authorized person. In
the claim petition, after narrating the entire facts
of the accident, injuries as also the treatment
undergone, a total sum of Rs. 2,02,36,000/- as
compensation was claimed along with interest at
the rate of 18% per annum from the date of filing
of the claim petition till the actual date of
payment.
4) The various heads under which the claimant
had claimed damages/compensation are as
follows:(i) For treatment undertaken in India: Rs.
1,50,000/- less Rs. 16411.79 = Rs.
1,33,588.21
(ii) Expenses to be paid to Dr. Chawala for his
services + the amount spent in shifting the
patient from Jaipur to Ahemadabad by air:
Rs. 1,40,000/(iii) The amount spent for treatment in
America = Rs. 13,00,000/(iv) The amount proposed to be spent on
keeping a nurse at home at the rate of Rs.
40,000/- per month. A sum of Rs.
4,00,000/- is claimed under this head.

***

JUDGMENT
R.K. AGRAWAL, J.
Civil Appeal No. 2967 of 2012

1) This appeal has been filed by the Rajasthan


State Road Transport Corporation (in short the
Corporation) - the appellant herein, against the
judgment and order dated 23.04.2010 passed by
the High Court of Judicature for Rajasthan at
Jaipur Bench, Jaipur in S.B. Civil Misc. Appeal
No. 2629 of 2003 wherein the appeal filed by the
present appellant has been partly allowed and the
sum of US $125,348.01 awarded by the Motor
Accidents Claims Tribunal (in short the
Tribunal) under the category Special Damages
has been disallowed and the remaining part of the
award has been maintained.
Civil Appeal Nos. 9944-9946 of 2011

2) The above appeals have been filed by Alexix


Sonier through next friend - Mrs. Dominique
Sonier (his mother) - against the aforementioned
order passed by the High Court wherein the
appeal filed by the claimant for enhancement of
amount awarded by the Tribunal has been
dismissed.
BRIEF FACTS:

3) Alexix Sonier-the claimant is an American


citizen. On 08.01.1988, the claimant was
participating in a Peace March along with the
citizens of various other countries from
Ahmedabad, in the State of Gujarat to Rajghat, in
New Delhi. While participating in the aforesaid
march along with a group of other persons,
between Jaipur and Delhi, near Chandwazi, a bus
of the Corporation, bearing Registration No.
RNP-897, which was driven by one Banwari Lal
Chowdhary rashly and negligently, at a very high
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Rajasthan State Road Transport Corporation v. Alexix Sonier & Ors. [IND-SC]

(v) Compensation for loss of earning Rs.


1,68,000/(vi) Compensation for loss of future earnings
Rs. 1,25,00,000/(vii) Compensation for physical and mental
suffering Rs. 25,00,000/(viii) Compensation for need of a helper Rs.
25,00,000/(ix) Compensation for keeping an attendant
Rs. 10,00,000/(x) Compensation for the loss of earning of
his mother who will look after him Rs.
10,00,000/Hence, a total sum of Rs. 2,02,36,000/- was
claimed.
5) The Corporation, apart from raising the
objections on technical grounds, denied the
manner in which the accident occurred as stated
in the claim petition. A specific stand was taken that

(ii)
(iii)
(iv)

(v)
(vi)
(vii)
(viii)
(ix)

(x)
(b)

the accident occurred on account of the negligence of


the claimant himself and, at best, it was a case of
contributory negligence as the claimant was trying to
cross the road but midway he back tracked and met
with an accident. It was further pleaded that the

the claim petition were very high and exaggerated


so also the amount of compensation claimed.
6) The Tribunal held the claim petition to be in
accordance with law and properly presented. It,
however, held that the accident had occurred on
account of negligence on the part of the driver of
the Corporation. The Tribunal, on the basis of
evidence on record, awarded damages as
follows:
(i)

Expenses incurred on
treatment in India

Dollars

1,00,000/125,348.01

25,000.00
4,00,000/408,000.00
81,584.00
60,000.00

1,61,954/-

For pain, sufferance


and mental agony

10,00,000/-

(ii)

For loss of amenities


and enjoyment of life

10,00,000/$699,932.01

Rs.
27,15,954/-

So Total damages in Rupees: (699932.01 x 14) +


2715954 = Rs. 1,25,15,002.14 In round figure,
it is Rs. 1,25,15,002/-
The Tribunal further awarded interest at the rate
of 6 per cent per annum with effect from the date
of presentation of the claim petition, that is,
07.07.1988, after deducting a sum of Rs. 25,000/paid to the two Commissioners who were
appointed for the recording of evidence and Rs.
1,16,411.69/- towards the expenses incurred and
the amount paid by the Corporation for the
treatment etc., in India to the claimant.
7) Being aggrieved by the Award dated
29.09.2003, the Corporation as also the claimant
have filed appeals before the High Court. The
High Court gave an opportunity to the parties to
arrive at a mutual settlement regarding the claim
but the Corporation declined to negotiate the
matter. It may be mentioned here that on an

necessity for the claimant to proceed to United States of


America without proper treatment and the Corporation
was not liable for the condition of the claimantRespondent No. 1 [t]herein. Further, the expenses in

Special Damages

4,000/-

(i)

TOTAL

best medical facilities were available at Jaipur


and there was no need to shift the claimant from
Jaipur to Ahmedabad without having the full
treatment at Jaipur itself. Also, there was no

(a)

Air fare from Jaipur to


Ahmedabad
Air fare from
Ahmedabad to USA
Medical expenses in
USA borne by MediCal
Medical expenses in
USA borne by parents
Future expenses on
medical treatment
Loss of income by
claimant
Loss of income of
attending mother
Future expenses for
management of
attendant
Expenses on Two
Commissions
General Damages:

ISC-197

Rupees
50,000/-

75

Law Animated World, 15 October 2015

ISC-198

Rajasthan State Road Transport Corporation v. Alexix Sonier & Ors. [IND-SC] (2015) 2 LAW

application filed by the claimant before the


Tribunal seeking appointment of a Commissioner
to the United States of America to record the
statements of 11 persons, the Tribunal, vide order
dated 11.07.1990, allowed the said application to
record the statements of 11 persons as mentioned
in the order and also appointed a Commissioner
for that purpose. It was contended by the
appellant that AW-10A to AW-19 all of whom
except AW-18 were not named in the order dated
11.07.1990. The Commissioner submitted his
report and also the evidence of all the persons
recorded by him before the Tribunal. No objection

applying and holding the Corporation liable. The


High Court, on appreciation of evidence on
record, upheld the findings of the Tribunal that
the driver of the bus of the Corporation was
negligent and driving the bus rashly and it is not a
case of contributory negligence, however, the
High Court deleted the amount of US$125,348.01
under the head of special damages on the ground
that there is no manner for the courts in India to
verify the fact as to whether or not the aforesaid
amount will be paid to the concerned Medi-Cal
department by the claimant and apart from it, no
statutory enactment of any such Scheme was
produced before the Court in evidence of
existence of such a Scheme for the Court to take
cognizance of. Moreover, there is no averment in
the claim petition regarding the amount spent by
the Medi-Cal Programme and for reimbursing the
aforesaid amount to the said department. The
High Court further held that the statements of the
persons recorded by the Commissioner, pursuant
to the order dated 11.07.1990, cannot be ignored
and have to be taken into consideration in view of
the fact that the Corporation had raised no
objection, as would be clear from the order dated
24.06.1991. The High Court, however, declined to

was taken by the Corporation regarding recording of


evidence of persons not named in the order dated
11.07.1990. In fact, the Tribunal, in its order dated
24.06.1991, has specifically recorded that Mr. Manish
Bhandari, learned counsel who appeared on behalf of
the Corporation was asked as to whether he has any
objection to take on record the statements of witnesses
but he did not raise any objection and the statements

of witnesses were taken on record.


8) Before the High Court, the Corporation took
an objection that the evidence recorded by the
Commissioner of the persons who were not
named in the order dated 11.07.1990 cannot be
taken into consideration. The Corporation also
objected to the order of the Tribunal awarding
damages under the head Special Damages in
respect of medical expenses incurred in United
States of America borne by Medi-Cal amounting
to US$125,348.01 on the ground that witness
AW-18 had admitted that in the State of
California a medical programme is in force under
which persons who were not covered under any
insurance and/or unable to pay their medical
expenses, all their medical expenses will be borne
by the State. According to the Corporation, since
the aforesaid amount has been awarded under the
head of medical expenses borne by Medi-Cal, the
claimant cannot be held entitled to receive the
aforesaid amount of US$125,348.01 and the same
is liable to be reduced. It was further submitted
before the High Court that the claimant has failed
to prove the negligence on the part of the driver
of the Corporation and the Tribunal has erred in
Law Animated World, 15 October 2015

enhance the amount of award by the Tribunal by


stating that it cannot be said to be inadequate.

9) Heard the arguments advanced by learned


counsel for the parties and perused the records.
Since a common question of law and facts arise in these
appeals, they are being disposed of by this common
judgment.

10) Learned Counsel for the Corporation


submitted that the High Court erred in law in
upholding the order of the Tribunal awarding
compensation to the claimant which is highly on
the exaggerated side. He further submitted that the
claimant had not claimed any damages in terms of US
Dollars and claim was made only in Indian currency,
therefore, the award of compensation by the Tribunal as
upheld by the High Court in respect of certain claims in
US Dollars was not justified in law. He further

submitted that there was no question of applying


the currency exchange rate of Rs. 14 per US
Dollar as the claim itself has not been made in it.
76

(2015) 2 LAW

Rajasthan State Road Transport Corporation v. Alexix Sonier & Ors. [IND-SC]

ISC-199

On behalf of the applicant Shri Bhartiya and on


behalf of R.S.R.T.C Shri Manish Bhandari and
Commissioner Shri Bhag Chand Jain are present.
Today Shri Bhag Chand Jain, court commissioner
presented an application annexing the statements
which he recorded of 10 witnesses after visiting
America. Shri Manish Bhandari was asked
whether he has any objection to take on record
the statement of witnesses Dr. E. Scott Conner,
Dr. Thomas Z. Weber, Mr. Courtney Billups,
Mr. Kent Furguson, Mr. Walter Joseph Babine,
Mr. Jan Robert, Mrs. Nancy Brooks, Miss
Maureen Mckenzie, Mrs Carole Kellogg and Mr.
Ivan Sonier - which was recorded in his
presence. He did not raise any objection.
Therefore the aforesaid statements of witnesses
are taken on record and exhibited as AW 10A
and AW-19. The applicant concludes his
depositions.

He further contended that the driver of the bus of the


Corporation was not at fault and he was not driving the
bus rashly or speedily and in fact, if at all, the accident
was a result of contributory negligence, and therefore,
the Corporation is not liable to pay any amount as
damages or compensation.
11) Learned counsel for the claimant, on the other
hand, submitted that the High Court was not
justified in deleting the medical expenses in USA
borne by Medi-Cal, as in the State of California,
it is government policy that medical treatment is
to be given by the State to such persons who are
unable to afford and further such persons are not
reimbursed by anybody else, however, if any
reimbursement of any medical expense is
received, it has to go to the State. He further
submitted that the claimant was entitled to the
amount given by the Tribunal under expenses
borne by Medi-Cal. He further submitted that the
claimant was also entitled for the amount to be
spent for helper/attendant to be engaged as the
claimant had suffered brain injury and have been
confined to bed. According to him, as the
expenses have been incurred and are to be
incurred in US dollars, exchange rate which was
prevalent at the time of the passing of the award
by the Tribunal ought to be given. In support of
this, he placed reliance on a decision of this Court
in Sanjay Verma v. Haryana Roadways, (2014) 3
SCC 210.
12) With regard to the plea taken by the
Corporation that the statement of the persons
recorded by the court appointed Commissioner,
who were not named in the order dated
11.07.1990 cannot be taken on record is
concerned, we find that though the Commissioner
has recorded evidence of persons viz., AW-10A
to AW-19 except AW-18 who were not named in
the order dated 11.07.1990, yet, when the
Commissioner filed the report along with the
evidence so recorded, a specific question was put
to the counsel of the Corporation as to whether he
has any objection but he did not raise any
objection as would be clear from the order dated
24.06.1991 passed by the Tribunal which for
ready reference is reproduced below:

In this view of the matter, it is not now open for


the Corporation to raise this plea.
13) So far as the question as to whether the
accident in question which occurred on
08.01.1988 was a result of contributory
negligence or the driver of the bus of the
Corporation was driving rashly and speedily is
concerned, we find that the driver of the bus had
denied that any accident in fact had taken place,
however, the site plan (Exh. 52), which has been
taken into consideration by the High Court,
shows that the bus was driven at a sufficiently
high speed and skid marks of the tyres of bus are
about 32 ft. in length which were because of the
speed of bus. The speed of the bus was quite high
and at the relevant time it cannot be stopped
immediately. The High Court has, therefore,
correctly held that the bus was driven rashly and
negligently and at a very fast speed. Therefore, the
question of accident being a result of contributory
negligence does not arise. So far as the question

regarding the amount of damages/award in


respect of Medi-Cal, which has been deleted by
the High Court is concerned, we are of the
considered opinion that in the State of California,
there is a Scheme under which persons who are not
covered under any insurance scheme like claimant are
extended medicare facilities for which no payment is to
be made by such persons and only the amount received
77

Law Animated World, 15 October 2015

ISC-200

Rajasthan State Road Transport Corporation v. Alexix Sonier & Ors. [IND-SC] (2015) 2 LAW

Indian currency, the amount awarded by the


Tribunal in respect of some of the items under
head Special Damages has been given in terms
of US dollars and the exchange rate has been
applied at the rate of Rs. 14 per US dollar. This
has been done on the specific finding that the
claimant himself had claimed exchange rate of
Rs. 14 per US dollar. Even though this Court in
the case of United India Insurance Co. Ltd. and
Others. v. Patricia Jean Mahajan and Others,
(2002) 6 SCC 281, has held that there would be
three relevant dates for the purpose, viz., the date
on which the amount became payable, the date of
the filing of the suit and the date of the judgment
and it would be fairer to both the parties to take
the latest of these dates, namely, the date of
passing of the decree as the relevant date for
applying the conversion rate. Yet, where the
prayer for passing a decree is indicated in rupees,
there would not be any dispute regarding what
rate of conversion to be applied. As in the present
case, we find from the claim petition that
claimant had claimed the amount only in Indian
rupees and there is no specific mention of US
dollars, there is no question of applying any
exchange rate. The Tribunal, while awarding

as reimbursement has to be handed over to the MediCal Department. In the present case, we find that

the Medi-Cal Department has already incurred


expenses for the treatment of the claimant. It will
be very difficult to keep a track, as observed by
the High Court, as to whether the amount
awarded under this head would be paid over to
the Medi-Cal Department or not, and therefore, in
our considered view, the High Court was justified
in modifying the award of the Tribunal by
disallowing US$125,348.01 under the category
Special Damages relating to the Medi-Cal.
14) However, we find that the claimant had
claimed a sum of Rs. 10 lakhs for keeping an
attendant for the entire life. Neither the Tribunal
nor the High Court had given any amount under
the said head. We find that this Court, in the case
of Sanjay Verma (supra), has held that where any
claim is made towards cost of attendant from the date of
accident till he remains alive and it is also proved, then
that claim is justified. In paragraph 22 of Sanjay

Verma (supra) this court has held as follows:


22. In the claim petition filed before the Motor
Accidents Claims Tribunal the claimant has
prayed for an amount of Rs. 2,00,000/- being the
cost of attendant from the date of accident till he
remains alive. The claimant in his deposition had
stated that he needs one person to be with him
all the time. The aforesaid statement of the
claimant is duly supported by the evidence of
PW 1 who has described the medical condition
of the claimant in detail. From the aforesaid
materials, we are satisfied that the claim made on

compensation under the head Special Damages in


terms of US dollars when converted into Indian rupees,
we find that the amount comes much less than the
amount claimed by the claimant in the claim petition.
Therefore, there is no question of any further reduction
in the said amount.

16) We are also of the view that the amount


awarded by the Tribunal as modified by the High
Court and further modified by us by awarding a
sum of Rs. 10 lakhs towards the cost of helper/
attendant is appropriate and does not call for any
further enhancement. In view of the
aforementioned discussions, Civil Appeal No.
2967 of 2012 is dismissed. However, Civil
Appeal Nos. 9944-9946 of 2011 are partly
allowed. Interlocutory applications, if any, are
disposed of accordingly. In the facts and
circumstances of the case, the parties shall bear
their own costs.

this count is justified and the amount of Rs. 2,00,000/claimed by the claimant under the aforesaid head should
be awarded in full. We order accordingly.

Following the principles laid down by this Court


in Sanjay Verma (Supra) reproduced above, we
accordingly hold that the claimant is entitled for a
sum of Rs. 10 lakhs plus interest at the rate of 6%
per annum from the date of presentation of the
claim petition till the date of actual payment
towards expenses to be incurred for keeping an
attendant for the rest of his life to look after him.
15) We further find that even though the claimant
had not claimed any amount in US dollars in the
claim petition and the entire claim was in the
Law Animated World, 15 October 2015

*****
78

POLITICAL ISLAM IS THE ENEMY, NOT MUSLIMS !


- Farzana Hassan

Whether it is opposition to the niqab or the


fight against ISIS, it is crucial that responsible
political parties construct and publicize a clear
manifesto opposing the Islamist forces that
seriously threaten everything Canadians value.
Take the niqab controversy. Its supporters
constantly claim it is a non-issue because only a
small number of women wear it. But what the
niqab represents is much larger than the garment itself.
It is about political Islam spreading its patriarchal
agenda and expanding its territory into public spaces
that would otherwise be platforms for openness and
equality. Such as Canadian citizenship ceremonies.
It is not about one or one thousand niqabs, but the fact
Islamists are using the issue as a test of our national
resolve.

Zunera Ishaq talks to reporters outside the Federal Court of Appeal after her case
was heard on whether she can wear a niqab while taking her citizenship oath, in
Ottawa on Tuesday, September 15, 2015. THE CANADIAN PRESS/Patrick Doyle

Many accuse the Conservative government of


stoking anti-Muslim sentiment in this election
campaign. They say the government has raised issues
that are trivial and even racist. They believe the

Other issues work in a similar way. For


example, revoking the Canadian citizenship of dual
citizens convicted of terrorism is necessary. It sends a
strong message to those who engage in terrorist
violence they cannot be so arrogant as to assume
they will remain Canadians, if caught. Being a
citizen should inspire a sense of loyalty to ones country.
Those who conspire to commit acts of terror and
treason, while espousing allegiance to hostile
states or non-state entities, do not deserve
Canadian citizenship.
This leads us to ISIS. the threat ISIS poses to
the Western world is serious. This terrorist
organization is hard to defeat, but it must be
contained Once again, the ideology that inspires

Conservatives have avoided discussing more


meaningful issues, such as the environment and
the weak economy, because they have neither the
understanding nor the desire to formulate proper
policies.
An article in The Economist entitled Veiled
Attack summed up this narrative as follows:
The (niqab) fuss is a godsend for Stephen
Harper, who hopes voters will re-elect him for a
fourth term as Prime Minister, despite their fatigue
with his ten-year rule and a weak economy ...
Canadas one million Muslims are dismayed.
In fact, it is the Islamists and their supporters
who are rubbing their hands in satisfaction.
A crucial distinction needs to be made here. Debates on

outfits like ISIS is larger than the organization itself. It


exists in our midst. The entire Western world must

the niqab, ISIS and citizenship are not about Muslims,


but about Islamists. The difference is often ignored,

grapple with it, yet NDP Leader Thomas Mulcair


and Liberal Leader Justin Trudeau would end
our combat mission against ISIS in Syria and
Iraq. Islamism is alive and kicking in Canada. The
fight against it is not a fight against Muslims but

sometimes for political gain, sometimes out of


sheer ignorance.
Any democratic government should have an
agenda to fight all the lethal brands of Islamism. Why
should this be perceived as anti-Muslim?

against a vicious brand of political Islam that condones


violence in the name of religion, justifies wife battery
and believes in the apocalyptic supremacy of Islam. [No
doubt,] fighting Islamism is and must be a genuine
election issue.

Combating Islamism is and must be a legitimate


election issue.

Courtesy: Farzana Hassan & the Toronto Sun, 15-10-2015;


suitably edited; emphases in bold ours - IMS.

*****
79

Law Animated World, 15 October 2015

THE WEST SHOULD BAN THE BURQA


- Tarek Fatah

There

Thus, for all practical purposes, the accused woman

is no requirement in
the Quran for Muslim women
to cover their faces: Muslim
Canadian Congress, 2009

in London may never be seen by anyone, whether she is


found guilty or innocent.

In reaching his decision, Judge Murphy relied


on the recent Supreme Court of Canada decision
involving a Muslim woman identified only as
NS, who, as the complainant in a sexual assault
trial, had refused to take off her niqab in court.
At the core of the cases involving both the
accused D in Britain and complainant NS in
Canada, is the womens claim that masking their face

While Canada has been embroiled in the


controversy surrounding Quebecs plan to outlaw
the hijab as a headdress for its Muslim public
employees, across the pond in the UK, its the
niqab, a full-face mask worn by some Muslim
women that is creating a storm.
On Monday, a British judge at Londons
Blackfriars Crown Court ruled a Muslim woman
known only as D, who was facing charges of
intimidation, would be allowed to attend her own
trial wearing a full-face mask.

is their religious obligation and as such a fundamental


right.

Nothing could be further from reality, though


no non-Muslim has as yet had the courage to call
the bluff of Islamists who employ the niqab (and
burka) as a political symbol, a sort of a middle
finger to the West.
As the Muslim Canadian Congress said in
2009, there is no requirement in the Quran for
Muslim women to cover their faces. Invoking

In a ruling that shocked Britain, Judge Peter


Murphy admitted that concealing the face would
drive a coach and horses through the way justice
has been administered in England and Wales for
centuries.
Yet he apparently gave in to the religious
blackmail employed by Islamists, who fling
allegations of racism and Islamophobia at anyone
who dares criticize this medieval misogynist
practice being introduced throughout the West in
the name of Islam.
To satisfy critics of the niqab, the London
judge added a meaningless compromise. He ruled
that if the accused took the stand and gave
evidence, she would have to remove the face
mask and show her face to the jury. He wrote, If

religious freedom to conceal ones identity and promote


a political ideology is disingenuous.

No less an authority than Egypts late Sheikh


Mohamed Tantawi, dean of al-Azhar university,
stated the niqab was merely a cultural tradition and
that it had no connection to Islam or the Quran.
If there is any doubt about the religiosity of the
niqab and burka, one should take a look at the
holiest place for Muslims, the grand mosque in
Mecca, the Kaaba. For more than 1,400 years,

the defendant gives evidence she must remove the niqab


throughout her evidence. The operative word being
if. The fact is, people accused of criminal
wrongdoing have the right not to testify, thereby
avoiding cross-examination by the crown, and many

Muslim men and women have prayed in what we


believe is the House of God, and for all those centuries,
female visitors have been explicitly prohibited from
covering their faces.

Its time to take the veil off the lies Islamists tell and
to ban the niqab and burka from all public places. Finally,
use them as a reference point for students studying the
effects of brainwashing.

accused avail themselves of this right.

Courtesy: Tarek Fatah 08-10-15 at http://tarekfatah.com/,


first published in the Toronto Sun dated 17-09-2013;
Suitably edited; emphases in bold ours - IMS.

Law Animated World, 15 October 2015

*****
80

THE RIGHT TO PRIVACY

- Samuel D. Warren, Louis D. Brandeis

It could be done only on principles of private

noises and odors, against dust and smoke, and


excessive vibration. The law of nuisance was
2
developed. So regard for human emotions soon

justice, moral fitness, and public convenience,


which, when applied to a new subject, make
common law without a precedent; much more
when received and approved by usage. - Willes,
J., in Millar v. Taylor, 4 Burr, 2303, 2312.

extended the scope of personal immunity beyond the


body of the individual. His reputation, the standing
among his fellow men, was considered and the law
3
of slander and libel arose. Man's family relations
became a part of the legal conception of his life, and the
alienation of a wife's affections was held
4
remediable. Occasionally the law halted as in its

That the individual shall have full protection in


person and in property is a principle as old as the
common law; but it has been found necessary from

time to time to define anew the exact nature and


extent of such protection. Political, social, and
economic changes entail the recognition of new
rights, and the common law, in its eternal youth,
grows to meet the demands of society. Thus, in
very early times, the law gave a remedy only for
physical interference with life and property, for
trespasses vi et armis. Then the "right to life" served

refusal to recognize the intrusion by seduction


upon the honor of the family. But even here the
demands of society were met. A mean fiction, the
action per quod servitium amisit, was resorted to,
and by allowing damages for injury to the parents'
feelings, an adequate remedy was ordinarily
afforded.5 Similar to the expansion of the right to

only to protect the subject from battery in its various


forms; liberty meant freedom from actual

These nuisances are technically injuries to property; but


the recognition of the right to have property free from
interference by such nuisances involves also a
recognition of the value of human sensations.
3
Year Book, Lib. Ass., folio 177, pl. 19 (1356), (2 Finl.
Reeves Eng. Law, 395) seems to be the earliest reported
case of an action for slander.
4
Winsmore v. Greenbank, Willes, 577 (1745).
5
Loss of service is the gist of the action; but it has been
said that "we are not aware of any reported case brought
by a parent where the value of such services was held to
be the measure of damages." Cassoday, J., in Lavery v.
Crooke, 52 Wis. 612, 623 (1881). First the fiction of
constructive service was invented; Martin v. Payne, 9
John. 387 (1912). Then the feelings of the parent, the
dishonor to himself and his family, were accepted as the
most important element of damage. Bedford v. McKowl,
3 Esp. 119 (1800); Andrews v. Askey, 8 C. & P. 7
(1837); Phillips v. Hoyle, 4 Gray 568 (1855); Phelin v.
Kenderdine, 20 Pa. St. 354 (1853). The allowance of
these damages would seem to be a recognition that the
invasion upon the honor of the family is an injury to the
parent's person, for ordinarily mere injury to parental
feelings is not an element of damage, e.g., the suffering
of the parent in case of physical injury to the child.
Flemington v. Smithers, 2 C. & P. 292 (1827); Black v.
Carrolton R.R. Co., 10 La.Ann. 33 (1855); Covington
Street Ry. Co. v. Packer, 9 Bush, 455 (1872). [It seems
there is also a per quod consortium amisit a Latin maxim

restraint; and the right to property secured to the


individual his lands and his cattle. Later, there
came a recognition of man's spiritual nature, of his
feelings and his intellect. Gradually the scope of
these legal rights broadened; and now the right to
life has come to mean the right to enjoy life the right
to be let alone, the right to liberty secures the
exercise of extensive civil privileges; and the term
"property" has grown to comprise every form of
possession intangible, as well as tangible.

Thus, with the recognition of the legal value of


sensations, the protection against actual bodily
injury was extended to prohibit mere attempts to
do such injury; that is, the putting another in fear
of such injury. From the action of battery grew that of
1
assault. Much later there came a qualified
protection of the individual against offensive

Courtesy: University of Louisville, Louis D. Brandeis


School of Law Library at http://louisville.edu/law/library/;
originally published in 4 Harvard Law Review 193
(1890); suitably edited; emphases in bold ours - IMS.
Year Book, Lib. Ass., folio 99, pl. 60 (1348 or 1349),
appears to be the first reported case where damages were
recovered for a civil assault.
81

Law Animated World, 15 October 2015

82

The Right to Privacy (Warren & Brandeis)

life was the growth of the legal conception of


property. From corporeal property arose the
incorporeal rights issuing out of it; and then there
opened the wide realm of intangible property, in
the products and processes of the mind,6 as works
of literature and art,7 good-will,8 trade secrets,
and trade-marks.9
This development of the law was inevitable.
The intense intellectual and emotional life, and the

precincts of private and domestic life; and


numerous mechanical devices threaten to make
good the prediction that "what is whispered in the
closet shall be proclaimed from the house-tops." For
years there has been a feeling that the law must
afford some remedy for the unauthorized
circulation of portraits of private persons;11 and
the evil of the invasion of privacy by the
newspapers, long keenly felt, has been but
recently discussed by an able writer.12 The
alleged facts of a somewhat notorious case
brought before an inferior tribunal in New York a
few months ago,13 directly involved the
consideration of the right of circulating portraits;
and the question whether our law will recognize
and protect the right to privacy in this and in
other respects must soon come before our courts
for consideration.
(to be continued)

heightening of sensations which came with the advance


of civilization, made it clear to man that only a part of
the pain, pleasure, and profit of life lay in physical
things. Thoughts, emotions, and sensations demanded
legal recognition, and the beautiful capacity for growth
which characterizes the common law enabled the judges
to afford the requisite protection, without the
interposition of the legislature.

Recent inventions and business methods call


attention to the next step which must be taken for
the protection of the person, and for securing to
the individual what Judge Cooley calls the right
"to be let alone."10 Instantaneous photographs and
newspaper enterprise have invaded the sacred

11

8 Amer. Law Reg. N.S. 1 (1869); 12 Wash. Law Rep.


353 (1884); 24 Sol. J. & Rep. 4 (1879).
12
Scribner's Magazine, July 1890. The Rights of the Citizen:
to His Reputation, by E. L. Godkin, Esq. pp. 65, 67.
13
Marion Manola v. Stevens & Myers, N.Y. Supreme Court,
New York Times of June 15, 18, 21, 1890. There, the
complainant alleged that, while she was playing in the
Broadway Theatre, in a role which required her
appearance in tights, she was, by means of a flashlight,
photographed surreptitiously and without her consent,
from one of the boxes, by defendant Stevens, the
manager of the "Castle in the Air" company, and
defendant Myers, a photographer, and prayed that the
defendants might be restrained from making use of the
photograph taken. A preliminary injunction issued ex
parte, and a time was set for argument of the motion that
the injunction should be made permanent, but no one
then appeared in opposition.

Brandeis defined modern notions of the individual right


to privacy in [this] path-breaking article published in
the Harvard Law Review of Dec. 15, 1890, on "The
Right to Privacy." he argued that the central, if
unarticulated, interest protected in these fields was an
interest in personal integrity, "the right to be let alone,"
that ought to be secured against invasion except for some
compelling reason of public welfare. Between 1888-1890,
Brandeis and his law partner, Samuel Warren, wrote 3
scholarly articles published in the Harvard Law Review.
[This] third, The Right to Privacy, was the most important,
with legal scholar Roscoe Pound saying it accomplished
nothing less than adding a chapter to our law. {Wikipedia}

that was developed by the English to phrase the action


then taken by a husband in trespass against any person
who harmed his wife. The action operated under the
ancient and now mostly disused legal presumption that
the wife was the property of the husband. The per quod
consortium amisit action later became the action for loss
of consortium. - IMS.]
6
"The notion of Mr. Justice Yates that nothing is property
which cannot be earmarked and recovered in detinue or
trover may be true in an early stage of society, when
property is in its simple form and the remedies for
violation of it also simple, but is not true in a more
civilized state, when the relation of life and the interests
arising therefrom are complicated." Erle, J., in Jefferys v.
Boosey, 4 H.L.C. 815, 869 (1845).
7
Copyright appears to have been first recognized as a
species of private property in England in 1558. Drone on
Copyright 54, 61.
8
Gibblett v. Read, 9 Mod. 459 (1743), is probably the first
recognition of goodwill as property.
9
Hogg v. Kirby, 8 Ves. 215 (1803). As late as 1742, Lord
Hardwicke refused to treat a trademark as property for
infringement upon which an injunction could be granted.
Blanchard v. Hill, 2 Atk. 484.
10
Cooley on Torts, 2d ed., p. 29.
Law Animated World, 15 October 2015

(2015) 2 LAW

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(2015) 2 LAW

Historical inevitability or electoral corruption? [IMS]

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( Carried from p. 2 )

that the Andhras had a good case but objected on the


ground that [Sri] Sarma was pleading for the
reconstitution of the whole country... The resolution
was put and negatived... probably a specific demand
for an Andhra Province and a concerted effort to
acquaint and convince at least the non-official
members of the legislature might have met with
greater sympathy (K.V. Narayana Rao, op. cit., p. 63).
The net result was quite disappointing, a sort of
fiasco, rues Sri M.V.R. Sastri. Montagu and
Chelmsford, who might have otherwise been
somewhat favorable to Andhra province, were not
impressed by this demand for reorganization of
entire British India on linguistic basis, and so in the
final report they prepared in July 1918 there was no
mention of the Andhra demand even. While, on the
one hand, agreeing that reorganization into smaller
states could be more congenial to convenient and
better administration, at the same time, they had
conclusively declared that such reorganization was
neither possible nor desirable at that juncture.
Curiously, however, the report was in favor of
conceding the demands for Berar and Orissa
provinces at the earliest. This was like a bombshell
to the Andhra movement since whereas Andhras
were more vociferous, organized and persistent in
their demand for a separate province over the years,
Oriyas had raised their demand relatively recently
and their movement was not that concerted or
coherent. This was the first, big disappointment for
the Andhra movement which was more organized
and persistent in its demands and efforts even on a
country wide scale.
(to be continued)

Sri M.V.R. Sastri, however, is bitterly critical of


Sri B.N. Sarmas moving such a resolution not
specifically for the formation of Andhra Province
but for the wider demand of an all India linguistic
reorganization of provinces, which he feels had
defeated the main aim of the Andhra movement at
that crucial juncture. By the end of 1917 almost all
the Andhra leaders have come to a consensus on the
need for formation of a separate province: By the
close of 1917 almost all Andhra leaders had expressed
themselves in favour of a separate province. Those
who had been hesitant came openly now in its support
because of the change in the political atmosphere with
the announcement of the Secretary of State. They felt
that the time had come for them to unite and strive for
an Andhra Province... This was the first time since the
inception of AMS when all prominent Andhra leaders
came together and with one voice, pleaded for the
formation of a separate province (K.V. Narayana
Rao, The Emergence of Andhra Pradesh, pp. 59-62).
Montagu himself was not averse to granting a
separate State for Andhras and there were many
eminent persons in the government who would have
been glad to concede it if the demand were limited
to the formation of Andhra province alone.
However, Sri B.N. Sarma enlarged the scope of the
problem by demanding a linguistic reorganization
of the provinces all over India, which he might have
taken as a principled stand, but was an entirely
impractical demand at that juncture. Sri K.V.
Narayana Rao notes that even those who were in
favor of a separate Andhra State turned hostile to a
resolution of this sort. In the debates in the Council,
Dr.Tej Bahadur Sapru said that if it was a question of
only Andhra Province, he would have sympathised
with the resolution... V.S. Srinivasa Sastri conceded

*****
Party. In his later days, he was strongly opposed to
the partition of India. He served as a member of the
Madras Legislative Council from 1913 to 1916, Imperial
Legislative Council of India from 1916 to 1919 and the
Council of State from 1920 to 1925. He also functioned
as India's delegate to the League of Nations, as member
of the Privy Council of the United Kingdom and agent to
the Union of South Africa. He gained worldwide fame for
his prowess in the English language; was a close follower
of Gopal Krishna Gokhale; also a close friend of
Mahatma Gandhi . Sastri was made a "Companion of
Honour" in 1930. In 1921, the Freedom of the City of
London was conferred on him, followed by the Freedom
of the City of Edinburgh in 1931. {Wikipedia}

Valangaiman Sankaranarayana Srinivasa Sastri (born:

22-09-1869; died: 17-04-1946), an Indian politician,


administrator, educator, orator and Indian independence
activist; acclaimed for his oratory and command over the
English language; born to a poor temple priest in the
village Valangaiman near Kumbakonam, Tamilnadu;
completed his education at Kumbakonam and worked as
a school teacher; later, headmaster, in Triplicane, Madras.
He entered politics in 1905 when he joined the Servants
of India Society. Srinivasa Sastri served as a member of
the Indian National Congress from 1908 to 1922, but later
resigned in protest against Non-Cooperation movement.
He was one of the founding members of the Indian Liberal
83

Law Animated World, 15 October 2015

84

Law Animated World {15 October 2015}

Postal Reg. No. HD/1098/2014-16

EVEN THIS SHALL PASS AWAY

Theodore Tilton

Theodore Tilton

Theodore Tilton

THE LOTUS PLANTER


I.
II.
III.
IV.
V.
VI.
VII.
VIII.
IX.
X.
XI.
XII.
XIII.

A Brahmin on a lotus pod


Once wrote the holy name of God
Then, planting it, he asked in prayer
For some new fruit, unknown and fair
A slave near by, who bore a load,
Fell fainting on the dusty road.
The Brahmin, pitying, straightway ran
And lifted up the fallen man.
The deed scarce done, he looked aghast
At touching one beneath his caste.
Behold ! he cried, I stand unclean:
My hands have clasped the vile and mean
God saw the shadow on his face,
And wrought a miracle of grace.
The buried seed arose from death,
And bloomed and fruited at His breath.
The stalk bore up a leaf of green,
Whereon these mystic words were seen:First count men all of equal caste;
Then count thyself the least and LAST.
The Brahmin, with bewildered brain,
Beheld the will of God writ plain!
Transfigured in a sudden light,
The slave stood sacred in his sight.
Thenceforth within the Brahmin's mind
Abode good will for all mankind.

Towering in the public square,


Twenty cubits in the air,
Rose his statue, carved in stone.
Then the king, disguised, unknown,
Stood before his sculptured name,
Musing meekly: "What is fame?
Fame is but a slow decay;
Even this shall pass away."
Struck with palsy, sore and old,
Waiting at the Gates of Gold,
Said he with his dying breath,
"Life is done, but what is Death?"
Then, in answer to the king,
Fell a sunbeam on his ring,
Showing by a heavenly ray,
Even this shall pass away.

- Theodore Tilton *
Once in Persia reigned a king,
Who upon his signet ring
Graved a maxim true and wise,
Which, if held before his eyes,
Gave him counsel at a glance
Fit for every change and chance.
Solemn words, and these are they;
"Even this shall pass away."
Trains of camels through the sand
Brought him gems from Samarqand;
Fleets of galleys through the seas
Brought him pearls to match with these;
But he counted not his gain
Treasures of the mine or main;
"What is wealth?" The King would say;
"Even this shall pass away."
'Mid the revels of his court,
At the zenith of his sport,
When the palms of all his guests
Burned with the clapping at his jests,
He, amid his figs and wine,
Cried, "O loving friends of mine;
Pleasures come but do not stay;
'Even this shall pass away'."
Lady fairest ever seen,
Was the bride he crowned his queen.
Pillowed on his marriage bed,
Softly to his soul he said:
"Though no bridegroom ever pressed
Fairer bosom to his breast,
Mortal flesh must come to clay,
Even this shall pass away."
Fighting on a furious field,
Once a javelin pierced his shield;
Soldiers, with a loud lament,
Bore him bleeding to his tent.
Groaning from his tortured side,
"Pain is hard to bear," he cried;
But with patience, day by day,
Even this shall pass away."
[Theodore Tilton (b. 02-10-1835; d. 29-05-1907); An American
newspaper editor, poet and abolitionist; worked as assistant to the
Rev. Henry Ward Beecher and for eleven years, until 1874, when
he sued Beecher for adultery with his wife; Tilton later moved to
Paris where he lived unto his last.]
(Courtesy: Wikipedia &
C. Balajee, Advocate)

*****

***

Owned, Printed and Published by I. Balamani, 6-3-1243/156, M.S. Makta, Opposite Raj Bhavan,
Hyderabad - 500082; Editor: I. Mallikarjuna Sharma; Ph: 23300284; E-mail: mani.bal44@gmail.com
andprinted at Pragati Offset Pvt. Ltd., Red Hills, Hyderabad-500 004 {Ph: 23304835, 23380000}
84