Saradamani Kandappan v. S.

Rajalakshmi (SC) 2011 AIR SC (Civil) 1812

IMPORTANT

Time essence of contract - Sale of immovable property - The law that time was not essence of
contract was evolved long years back when prices were stable and inflation was unknown - These
days there is galloping increase in prices of immovable properties - Market values of properties are
no longer stable or steady - Held, there is an urgent need to revisit the principle that time is not of
the essence in contracts.

A. Contract Act, 1872, Section 55 - Specific Relief Act, 1963, Section 16 - Sale of immovable
property - Time whether essence of contract - Agreement to sell provided that purchaser will make
payment by instalments - Dates for payment of instalmentS were stipulated in the agreement -
There was clear intention that payment should be made on the stipulated dates and even a day's
delay was not acceptable unless the due date was declared to be a holiday - It was also stipulated
that payment on due dates was the essence of contract and in case of failure on the part of the
purchaser the vendors shall cancel the agreement - Time regarding payment of balance price was
the essence of the contract and cancellation of contract on account of non-payment by due dates
was justified.

B. Contract Act, 1872, Section 55 - Time essence of contract - Sale of immovable property - The law
that time was not essence of contract was evolved long years back when prices were stable and
inflation was unknown - These days there is galloping increase in prices of immovable properties -
Market values of properties are no longer stable or steady - Held, there is an urgent need to revisit
the principle that time is not of the essence in contracts relating to immovable properties - Supreme
Court left this issue to be considered in an appropriate case. 1983(2) RCR (Rent) 579, relied.

C. Contract Act, 1872, Sections 51, 52, 53 and 54 - Specific Relief Act, 1963, Section 16 - Sale of
immovable property - Dates for payment of consideration specified in the contract - Agreement
further stipulated that vendors will furnish original sale title deeds and satisfy the purchaser
regarding title - Agreement did not say that the balance of the sale price shall be paid only after the
vendors satisfied the purchaser in regard to title or that the purchaser shall pay the balance of sale
price only after she satisfies herself regarding title of the vendors to the lands - Held, time for
payment of consideration was essence of contract - Non-payment of consideration by specified time
- Contract rightly cancelled by vendors - Suit for specific performance rightly rejected.

D. Contract Act, 1872, Section 55 - Time whether essence of contract - Sale of immovable property
if time is specified for payment of the sale price but not in regard to the execution of the sale deed,
time will become the essence only with reference to payment of sale price but not in regard to
execution of the sale deed - Normally in regard to contracts relating to sale of immovable
properties , time is not considered to be the essence of the contract unless such an intention can be
gathered either from the express terms of the contract or impliedly form the intention of the parties
as expressed by the terms of the contract .

E. Transfer of Property Act, 1882, Section 55 - A person entrusted with property as caretaker - This
does not mean that possession was given that person - Possession remains with owner - Part
performance of contract - Agreement to sale property - Purchaser entrusted with property as
caretaker as part performance of contract - This does not mean that possession of property was
given to vendor - Contract for sale cancelled - Purchaser cannot file suit seeking injunction for
declaration that his possession not be disturbed - Possession in fact remained with vendors -
Purchaser was only a caretaker - Suit for injunction rightly dismissed.

F. Specific Relief Act, 1963, Section 16 - Contract Act, 1872, Section 55 - Agreement to sell property
Purchaser paying an advance of Rs. 3.50 lakhs to vendors - Contract however, cancelled as
purchaser failed to pay the balance amount with stipulated time - Vendors are liable to refund the
amount even if branch of contract was part of purchaser - There was no provision in the agreement
for forfeiture of the amounts already paid, even in the event of breach by the purchaser.

G. Transfer of Property Act, 1882, Sections 100 - Contract Act, 1872, Section 55 - Meaning of word
encumbrance - Encumbrance is charge on property - Entering into MOU to sell- property does not
create an encumbrance or charge on property .

H. Specific Relief Act, 1963, Section 16 - Evidence Act, Section 114 - Adverse inference - Sale of
property - Suit for specific performance instituted by purchasers against four vendors - Only one of
vendors stepped into witness box on behalf of all - This Vendor had complete knowledge of entire
transaction - No adverse inference could be drawn - Held :-

When one of the defendants who is conversant with the facts has given evidence, it is not necessary
for the other defendants to be examined as witnesses to duplicate the evidence. 2011(1) RCR (Civil)
189 : 2010(6) Recent Apex Judgment (RAJ) 437, relied.
I. Contract Act, 1872, Section 55 - Sale of immovable property - Normally it is presumed that time is
not the essence of contract - However, in the instances stated below time may be considered
essence of contract - Held :-

If the vendor discloses in the agreement of sale, the reason for the sale and the reason for
stipulating that time prescribed for payment to be in the essence of the contract , that is, say, need
to repay a particular loan before a particular date, or to meet an urgent time -bound need (say
medical or educational expenses of a family member) time stipulated for payment will be considered
to be the essence - Even if the urgent need for the money within the specified time is not set out, if
the words used clearly show an intention of the parties to make time the essence of the contract ,
with reference to payment, time will be held to be the essence of the contract .

J. Constitution of India, Article 136 - S.L.P. - Concurrent finding of fact by Courts below - Supreme
Court will be reluctant to interfere.

K. Enactment of Laws - Laws, which may be reasonable and valid when made, can, with passage of
time and consequential change in circumstances, become arbitrary and unreasonable - A provision
which was perfectly valid at the commencement of the Act could be challenged later on the ground
of unconstitutionality and struck down on that basis - What was once a perfectly valid legislation,
may in course of time , become discriminatory and liable to challenge on the ground of its being
violative of Article 14. 1983(2) RCR (Rent) 579, relied.

19. The legal position is clear from the decision of a Constitution Bench of this court in Chand Rani v.
Kamal Rani, 1993(2) R.R.R. 46 : [1993 (1) SCC 519], wherein this court outlined the principle thus:

"It is a well-accepted principle that in the case of sale of immovable property, time is
never regarded as the essence of the contract. In fact, there is a presumption against
time being the essence of the contract. This principle is not in any way different from
that obtainable in England. Under the law of equity which governs the rights of the
parties in the case of specific performance of contract to sell real estate, law looks not
at the letter but at the substance of the agreement. It has to be ascertained whether
under the terms of the contract the parties named a specific time within which
completion was to take place, really and in substance it was intended that it should be
completed within a reasonable time. An intention to make time the essence of the
contract must be expressed in unequivocal language." Relying upon the earlier
decisions of this court in Gomathinayagam Pillai v. Pallaniswami Nadar, [1967(1) SCR
227] and Govind Prasad Chaturvedi v. Hari Dutt Shastri, [1977(2) SCC 539], this
Court further held that fixation of the period within which the contract has to be
performed does not make the stipulation as to time the essence of the contract.
Where the contract relates to sale of immovable property, it will normally be
presumed that the time is not the essence of the contract. Thereafter this court held
that even if time is not the essence of the contract, the Court may infer that it is to be
performed in a reasonable time : (i) from the express terms of the contract; (ii) from
the nature of the property and (iii) from the surrounding circumstances as for
example, the object of making the contract. The intention to treat time as the essence
of the contract may however be evidenced by circumstances which are sufficiently
strong to displace the normal presumption that time is not the essence in contract for
sale of land. In Chand Rani, AIR 1993 SC 1742 : 1993 AIR SCW 1371 clause (1) of the
agreement of sale required the balance consideration to be paid as under:
"Rs. 98,000/- will be paid by the second party to the first party within a period of ten
days only and the balance Rs. 50,000 at the time of registration of the sale deed....".
This court held that time regarding payment of Rs. 98,000 was the essence, on the
following reasoning :
"The analysis of evidence would also point out that the plaintiff was not willing to pay
this amount unless vacant delivery of possession of one room on the ground floor was
given. In cross-examination it was deposed that since income-tax clearance certificate
had not been obtained the sum of Rs. 98,000 was not paid. Unless the property was
redeemed the payment would not be made. If this was the attitude it is clear that the
plaintiff was insisting upon delivery of possession as a condition precedent for making
this payment. The income-tax certificate was necessary only for completion of sale.
We are unable to see how these obligations on the part of the defendant could be
insisted upon for payment of Rs. 98,000. Therefore, we conclude that though as a
general proposition of law time is not the essence of the contract in the case of a sale
of immovable property yet the parties intended to make time as the essence under
Clause (1) of the suit agreement."

The intention to make time stipulated for payment of balance consideration will be considered to be
essence of the contract where such intention is evident from the express terms or the circumstances
necessitating the sale, set out in the agreement. If for example, the vendor discloses in the
agreement of sale, the reason for the sale and the reason for stipulating that time prescribed for
payment to be the essence of the contract, that is, say, need to repay a particular loan before a
particular date, or to meet an urgent time bound need (say medical or educational expenses of a
family member) time stipulated for payment will be considered to be the essence. Even if the urgent
need for the money within the specified time is not set out, if the words used clearly show an
intention of the parties to make time the essence of the contract, with reference to payment, time
will be held to be the essence of the contract.

4. The principle that time is not of the essence of contracts relating to immovable properties took
shape in an era when market value of immovable properties were stable and did not undergo any
marked change even over a few years (followed mechanically, even when value ceased to be
stable). As a consequence, time for performance, stipulated in the agreement was assumed to be
not material, or at all events considered as merely indicating the reasonable period within which
contract should be performed. The assumption was that grant of specific performance would not
prejudice the vendor- defendant financially as there would not be much difference in the market
value of the property even if the contract was performed after a few months. This principle made
sense during the first half of the twentieth century, when there was comparatively very little
inflation, in India. The third quarter of the twentieth century saw a very slow but steady increase in
prices. But a drastic change occurred from the beginning of the last quarter of the twentieth century.
There has been a galloping inflation and prices of immovable properties have increased steeply, by
leaps and bounds. Market values of properties are no longer stable or steady. We can take judicial
notice of the comparative purchase power of a rupee in the year 1975 and now, as also the steep
increase in the value of the immovable properties between then and now. It is no exaggeration to
say that properties in cities, worth a lakh or so in or about 1975 to 1980, may cost a crore or more
now.

25. The reality arising from this economic change cannot continue to be ignored in deciding cases
relating to specific performance. The steep increase in prices is a circumstance which makes it
inequitable to grant the relief of specific performance where the purchaser does not take steps to
complete the sale within the agreed period, and the vendor has not been responsible for any delay
or non-performance. A purchaser can no longer take shelter under the principle that time is not of
essence in performance of contracts relating to immovable property, to cover his delays, laches,
breaches and `non-readiness'. The precedents from an era, when high inflation was unknown,
holding that time is not of the essence of the contract in regard to immovable properties, may no
longer apply, not because the principle laid down therein is unsound or erroneous, but the
circumstances that existed when the said principle was evolved, no longer exist. In these days of
galloping increases in prices of immovable properties, to hold that a vendor who took an earnest
money of say about 10% of the sale price and agreed for three months or four months as the period
for performance, did not intend that time should be the essence, will be a cruel joke on him, and will
result in injustice. Adding to the misery is the delay in disposal of cases relating to specific
performance, as suits and appeals therefrom routinely take two to three decades to attain finality.
As a result, an owner agreeing to sell a property for Rs. One lakh and received Rs. Ten Thousand as
advance may be required to execute a sale deed a quarter century later by receiving the remaining
Rs. Ninety Thousand, when the property value has risen to a crore of rupees.

26. It is now well settled that laws, which may be reasonable and valid when made, can, with
passage of time and consequential change in circumstances, become arbitrary and unreasonable.

50. An `encumbrance' is a charge or burden created by transfer of any interest in a property. It is a

liability attached to the property that runs with the landMere execution of an MOU, agreeing to enter
into an agreement to sell the property, does not amount to encumbering a property. Receiving
advances or amounts in pursuance of an MOU would not also amount to creating an encumbrance.

Suraj Lamp and Industries Pvt. Ltd. v. State of Haryana (SC) : Law Finder Doc Id # 271445

2012() AIR (SC) 206

IMPORTANT

No immovable property can be legally trasferred or conveyed through a General Power of Attorney,
Agreement to sell or Will.

IMPORTANT

Execution of Will - Validity of - So long as the testator is alive, a Will is not be worth the paper on
which it is written, as the testator can at any time revoke - Registration of a Will goes not make it
any more effective.

A. Power of Attorney Act, 1882, Sections 1-A and 2 - Transfer of Property Act, 1882, Sections 53-A
and 54 - Succession Act, 1925, Section 63 - Transfer of Property - Power of Attorney - No
immovable property can be legally transferred or conveyed through a General Power of Attorney,
Agreement to sell or Will - Immovable property can be legally and lawfully transferred/conveyed
only by a registered deed of conveyance - Further held :-

Transactions of the nature of sales through General Power of Attorney, Agreement to sell or will
neither convey title nor create any interest in an immovable property - They cannot be congnized as
deeds of title, except to the limited extent of Section 53-A of the TP Act - Such transactions cannot
be relied upon or made the basis for mutations in Municipal or Revenue Records.

[Paras 15, 16, 17, 18 and 19]

B. Powers of Attorney Act, 1882, Sections 1-A and 2 - Power of Attorney when valid - A person may
give a power of attorney to his spouse, son, daughter brother, sister or a relative to manage his
affairs or to execute a deed of conveyance - A person may enter into a development agreement with
a land developer or builder for developing the land either by forming plots or by constructing
apartment buildings and in that behalf execute an agreement or sale and grant a Power of Attorney
empowering the developer to execute agreements of sale or conveyances in regard to individual
plots of land or undivided shares in the land relating to apartments in favour of prospective
purchasers.

C. Succession Act, 1925, Sections 63, 69 and 70 - Will - Meaning of - A will is the testament of the
testator - It is a posthumous disposition of the estate of the testator directing distribution of his
estate upon his death - It is not a transfer inter vivos - The two essential characteristics of a will are
that it is intended to come into effect only after the death of the testator and is revocable at any
time during the life time of the testator - It is said that so long as the testator is alive, a Will is not
be worth the paper on which it is written, as the testator can at any time revoke - Registration of a
Will goes not make it any more effective.

D. Succession Act, 1925, Sections 69, 70, 63 - Will - Revocation of - If the testator who is not
married, marries after making the will, by operation of law, the will stands revoked.

E. Transfer of Property Act, 1882, Sections 54 and 55 - An agreement of sale does not, of itself,
create any interest in or charge on such property - Transfer of immovable property by way of sale
can only be by a deed or conveyance (sale deed) - In the absence of a deed of conveyance (duly
stamped and registered as required by law), no right, title or interest in an immovable property can
be transferred. 1977(3) SCC 247, relied.

F. Stamp Act, 1999 - Registration Act, 1908, Sections 17 and 49 - A deed of conveyance is
compulsorily registrable - Objects and benefits of registration explained - Registration of documents
makes the process of verification and certification of title and simpler - It reduces disputes and
litigations to a large extent.

G. Power of Attorney Act, 1882, Sections 1-A and 2 - Irrevocable Power of Attorney - Meaning - A
power of attorney is not an instrument of transfer in regard to any right, title or interest in an
immovable property - The power of attorney is creation of an agency whereby the grantor authorizes
the grantee to do the acts specified therein, on behalf of grantor, which when executed will be
binding on the grantor as if done by him - It is revocable or terminable at any time unless it is made
irrevocable in a manner known to law - Even an irrevocable attorney does not have the effect of
transferring title to the grantee - Further held :-

An attorney holder may however execute a deed of conveyance in exercise of the power granted
under the power of attorney and convey title on behalf of the grantor. 2005(12) SCC 77, relied.

Relevant Legal Provisions

7. Section 5 of the Transfer of Property Act, 1882 Section 54 of the TP Act defines `sales' thus :

Section 53A of the TP Act defines `part performance' thus :

"Part Performance. -

8. We may next refer to the relevant provisions of the Indian Stamp Act, 1999 (Note : Stamp Laws
may vary from state to state, though generally the provisions may be similar). Section 27 of the
Indian Stamp Act, 1899 casts upon the party, liable to pay stamp duty, an obligation to set forth in
the instrument all facts and circumstances which affect the chargeability of duty on that instrument.
Article 23 prescribes stamp duty on `Conveyance'. In many States appropriate amendments have
been made whereby agreements of sale acknowledging delivery of possession or power of Attorney
authorizes the attorney to `sell any immovable property are charged with the same duty as leviable
on conveyance.

9. Section 17 of the Registration Act, 1908 which makes a deed of conveyance compulsorily
registrable. We extract below the relevant portions of section 17.

"Section 17 -

Advantages of Registration
10. In the earlier order dated 15.5.2009, the objects and benefits of registration were explained and
we extract them for ready reference :

"The Registration Act, 1908, was enacted with the intention of providing orderliness,
discipline and public notice in regard to transactions relating to immovable property
and protection from fraud and forgery of documents of transfer. This is achieved by
requiring compulsory registration of certain types of documents and providing for
consequences of non- registration.
Section 17 of the Registration Act clearly provides that any document (other than
testamentary instruments) which purports or operates to create, declare, assign, limit
or extinguish whether in present or in future "any right, title or interest" whether
vested or contingent of the value of Rs. 100 and upwards to or in immovable property.
Section 49 of the said Act provides that no document required by Section 17 to be
registered shall, affect any immovable property comprised therein or received as
evidence of any transaction affected such property, unless it has been registered.
Registration of a document gives notice to the world that such a document has been
executed.
Registration provides safety and security to transactions relating to immovable
property, even if the document is lost or destroyed. It gives publicity and public
exposure to documents thereby preventing forgeries and frauds in regard to
transactions and execution of documents. Registration provides information to people
who may deal with a property, as to the nature and extent of the rights which persons
may have, affecting that property. In other words, it enables people to find out
whether any particular property with which they are concerned, has been subjected to
any legal obligation or liability and who is or are the person/s presently having right,
title, and interest in the property. It gives solemnity of form and perpetuate
documents which are of legal importance or relevance by recording them, where
people may see the record and enquire and ascertain what the particulars are and as
far as land is concerned what obligations exist with regard to them. It ensures that
every person dealing with immovable property can rely with confidence upon the
statements contained in the registers (maintained under the said Act) as a full and
complete account of all transactions by which the title to the property may be affected
and secure extracts/copies duly certified."

Registration of documents makes the process of verification and certification of title easier and
simpler. It reduces disputes and litigations to a large extent.

Scope of an Agreement of sale

11. Section 54 of TP Act makes it clear that a contract of sale, that is, an agreement of sale does
not, of itself, create any interest in or charge on such property. This Court in Narandas Karsondas v.
S.A. Kamtam and Anr., (1977)3 SCC 247, observed :

A contract of sale does not of itself create any interest in, or charge on, the property.
This is expressly declared in Section 54 of the Transfer of Property Act. See Rambaran
Prosad v. Ram Mohit Hazra, [1967]1 SCR 293. The fiduciary character of the personal
obligation created by a contract for sale is recognised in Section 3 of the Specific Relief
Act, 1963, and in Section 91 of the Trusts Act. The personal obligation created by a
contract of sale is described in Section 40 of the Transfer of Property Act as an
obligation arising out of contract and annexed to the ownership of property, but not
amounting to an interest or easement therein."
In India, the word `transfer' is defined with reference to the word `convey'. The word
`conveys' in section 5 of Transfer of Property Act is used in the wider sense of
conveying ownership.... ....that only on execution of conveyance ownership passes
from one party to another....."

In Rambhau Namdeo Gajre v. Narayan Bapuji Dhotra, 2004(4) R.C.R.(Civil) 303 : [2004(8) SCC
614] this Court held :

"Protection provided under Section 53A of the Act to the proposed transferee is a
shield only against the transferor. It disentitles the transferor from disturbing the
possession of the proposed transferee who is put in possession in pursuance to such
an agreement. It has nothing to do with the ownership of the proposed transferor who
remains full owner of the property till it is legally conveyed by executing a registered
sale deed in favour of the transferee. Such a right to protect possession against the
proposed vendor cannot be pressed in service against a third party."

It is thus clear that a transfer of immoveable property by way of sale can only be by a deed of
conveyance (sale deed). In the absence of a deed of conveyance (duly stamped and registered as
required by law), no right, title or interest in an immoveable property can be transferred.

12. Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of
sale) would fall short of the requirements of sections 54 and 55 of TP Act and will not confer any title
nor transfer any interest in an immovable property (except to the limited right granted under section
53A of TP Act). According to TP Act, an agreement of sale, whether with possession or without
possession, is not a conveyance. Section 54 of TP Act enacts that sale of immoveable property can
be made only by a registered instrument and an agreement of sale does not create any interest or
charge on its subject matter.

Scope of Power of Attorney

13. A power of attorney is not an instrument of transfer in regard to any right, title or interest in an
immovable property. The power of attorney is creation of an agency whereby the grantor authorizes
the grantee to do the acts specified therein, on behalf of grantor, which when executed will be
binding on the grantor as if done by him (see section 1A and section 2 of the Powers of Attorney Act,
1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to
law. Even an irrevocable attorney does not have the effect of transferring title to the grantee. In
State of Rajasthan v. Basant Nehata, 2005(12) SCC 77, this Court held :

"A grant of power of attorney is essentially governed by Chapter X of the Contract Act.
By reason of a deed of power of attorney, an agent is formally appointed to act for the
principal in one transaction or a series of transactions or to manage the affairs of the
principal generally conferring necessary authority upon another person. A deed of
power of attorney is executed by the principal in favour of the agent. The agent
derives a right to use his name and all acts, deeds and things done by him and subject
to the limitations contained in the said deed, the same shall be read as if done by the
donor. A power of attorney is, as is well known, a document of convenience.Execution
of a power of attorney in terms of the provisions of the Contract Act as also the
Powers-of-Attorney Act is valid. A power of attorney, we have noticed hereinbefore, is
executed by the donor so as to enable the donee to act on his behalf. Except in cases
where power of attorney is coupled with interest, it is revocable. The donee in exercise
of his power under such power of attorney only acts in place of the donor subject of
course to the powers granted to him by reason thereof. He cannot use the power of
attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or
breach of trust is a matter between the donor and the donee."

An attorney holder may however execute a deed of conveyance in exercise of the power granted
under the power of attorney and convey title on behalf of the grantor.

Scope of Will

14. A will is the testament of the testator. It is a posthumous disposition of the estate of the testator
directing distribution of his estate upon his death. It is not a transfer inter vivos. The two essential
characteristics of a will are that it is intended to come into effect only after the death of the testator
and is revocable at any time during the life time of the testator. It is said that so long as the testator
is alive, a will is not be worth the paper on which it is written, as the testator can at any time revoke
it. If the testator, who is not married, marries after making the will, by operation of law, the will
stands revoked. (see sections 69 and 70 of Indian Succession Act, 1925). Registration of a will does
not make it any more effective.

In Shanker Singh v. Narinder Singh (SC) : Law Finder Doc Id # 293655

2012(1) R.C.R.(Civil) 576

NUTSHELL

Agreement to sell land - Earnest money of Rs. 28,000/- paid to sellers - Suit for specific
performance dismissed after 35 years - Sellers to pay compensation of Rs. 5 lakhs to purchasers.

A. Specific Relief Act, 1963, Section 12(3) - Agreement to sell immovable property - Section 12(3) of
the Act permits a party to an agreement to relinquish a part of the agreement which is not
enforceable - However, it should be possible to identify and demarcate that part of the agreement
which is not to be enforced.

[Para 18]

B. Specific Relief Act, 1963, Section 10 - Agreement to sell immovable property - Explanation (i) to
Section 10 of the Act provides that unless and until the contrary is proved, the Court shall presume
that breach of contract to transfer immovable property cannot be adequately relieved by
compensation in money - However, this presumption is not an irrebuttable one.

[Para 19]

C. Specific Relief Act, 1963, Sections 10 and 12 - Agreement to sell land for Rs. 1.24 lakhs in the
year 1977 - Purchaser paid a sum of rs. 28,000/- as earnest money - Suit for specific performance
decreed by High Court but finally dismissed by Supreme Court - The proceedings continued for 35
years - Land throughout remained with sellers - Purchasers required to be compensated adequately
- Sellers directed to pay Rs. 5 lakhs to purchasers inclusive earnest money.

[Para 24]

Janak Dulari Devi v. Kapildeo Rai (SC) : Law Finder Doc Id # 261016

2011(4) R.C.R.(Civil) 708

NUTSHELL

Sale of property - Sale deed recited that consideration was received to vendor and possession
delivered to purchaser - Evidence is admissible to shown that o sale consideration was received by
vendor and no possession was delivered.

A. Evidence Act, Section 92 - Transfer of Property Act, 1882, Section 54 - Sale of property - Sale
deed recited that sale consideration was received by vendor and possession of property was
delivered - Vendor can show that infact no consideration was received by him and no possession was
delivered to purchaser - Evidence is admissible to contradict recitals in sale deed acknowledging
receipt of consideration -

ON FACTS :

In this case sale deed executed by vendor and duly registered - Sale deed recited that Vendor
received consideration of Rs. 17,000/- and delivered the possession - Vendor denying the receipt of
said amount as also the delivery of possession - Purchaser failed to prove the payment of
consideration - Held, execution and registration of sale deed did not pass an title to purchaser.
1998(4) RCR (Civil) 29 : 2009(2) RCR(Civil) 471 : 2009(2) Recent Apex Judgment (RAJ) 523, relied.

B. Civil Procedure Code, Order 18, Rule 2 - Evidence Act, Sections 3 and 5 - Evidence contrary to
pleadings - When what is pleaded is not proved, or what is stated in the evidence is contrary to the
pleadings, the dictum that no amount of evidence, contrary to the pleadings, howsoever cogent, can
be relied on, would apply.

C. Transfer of Property Act, 1882, Section 54 - Sale of property - Title when passes on to purchaser
- Practice of `ta khubzul badlain' (that is, title to the property passing to the purchaser only when
there is "exchange of equivalents") prevalent in Bihar explained - Held :-

(i) As per this practice, where a sale deed recites that entire sale consideration has
been paid and possession has been delivered, but the Registration Receipt is retained
by the vendor and possession of the property is also retained by the vendor, as the
agreed consideration (either full or a part) is not received, irrespective of the recitals
in the sale deed, the title would not pass to the purchaser, till payment of the entire
consideration to the vendor and the Registration Receipt is obtained by the purchaser
in exchange - The vendor who holds the Registration receipt will either receive the
registered document and keep the original sale deed in his custody or may keep the
registration receipt without exchanging it for the registered document from the sub-
Registrar, till payment of consideration is made.
(ii) The effect of such transactions in Bihar is that even though the duly executed and
registered sale deed may recite that the sale consideration has been paid, title has
been transferred and possession has been delivered to the purchaser, the actual
transfer of title and delivery of possession is postponed from the time of execution of
the sale deed to the time of exchange of the registration receipt for the consideration,
that is ta khubzul badlain. 1998(4) RCR (Civil) 29, relied.
[Paras 11, 12 and 15]

D. Transfer of Property Act, 1882, Sections 54 and 55(4)(b) - Sale of property - Execution of sale
deed though entire consideration was not paid to Vendor - Title to the property does not pass to
purchaser where the intention of the parties is that passing of title would depend upon the passing
of consideration - Evidence is admissible for the purpose of contradicting the recital in the deed
acknowledging the receipt of consideration. 1998(4) RCR (Civil) 29 : 2009(2) RCR (Civil) 471 L
2009(2) Recent Apex Judgment (RAJ) 523, relied.

[Paras 8, 9 and 10]

Kammana Sambamurthy v. Kalipatnapu Atchutamma (SC) 2011 AIR (SC) 103

NUTSHELL

Dwelling house jointly owned by husband and wife - Husband entering into agreement to sell entire
house without consent of wife - Contract is not binding on wife - Contract could be enforced against
husband to the extent of his share in the house.
A. Specific Relief Act, 1963, Section 12 - Non performance of contract on ground of hardship -
Dwelling house jointly owned by vendor and his wife in equal shares - Agreement to sell dwelling
house by vendor - Vendor refusing to execute sale deed - Suit for specific performance - Suit
prolonged for 19 years - Death of both vendor and his wife - Their 10 daughters residing in the
house - These facts hardly constitute hardship justifying denial of decree for specific performance to
the extent of vendor's half share in the property .

[Para 28]

B. Specific Relief Act, 1963, Section 12 - Partition Act, 1893, Section 4 - Dwelling house jointly
owned by husband and wife - Husband entering into agreement to sell entire house without consent
of wife - Contract is not binding on wife - Contract could be enforced against husband to the extent
of his share in the house.

ON FACTS :-

Specific performance of part of contract - Dwelling house jointly owned by husband (vendor) and
wife in equal undivided shares - Husband (vendor) entering into agreement to sell entire house
without authority by wife and without informing the vendee that his wife was share holder - Husband
(vendor) refusing to execute registration deed - Wife not willing to sell her share - Vendee filing suit
for specific performance of contract both against husband and wife - Held, contract is not binding on
wife, but binding on vendor - However, agreement could be enforced against the vendor to the
extent of his half share in the property - Contention of wife that she had right to pre- emption under
section 4 of Partition Act is not tenable at this stage. 2004(3) RCR(Civil) 577 Distt.,1999(4) RCR
(Civil) 597 relied.

Marabasappa (D) by LRs. v. Ningappa (D) by LRs. (SC) 2011(4) R.C.R.(Civil) 370
NUTSHELL

A Hindu female is full owner of Stridhan property - She will also be full owner property purchased
out of the income of Stridhan property.

Hindu Succession Act, 1956, Section 14 - Joint Hindu Family property - A Hindu woman getting gift
of property from her father at time of marriage - It is her Stridhan property and she will be full
owner of property - She will also be the owner of any property purchased by her out of income of
Stridhan property and not joint Hindu family property . 2007(1) SCC 521, relied.

[Paras 21 and 23]

22. This Court has time and again held that there is no presumption that of joint family property,
and there must be some strong evidence 17 in favour of the same. In the case of Appasaheb
Chamdgade v. Devendra Chamdgade and Ors., (2007)1 SCC 521, after examining the decisions of
this Court, it was held :

"17. Therefore, on survey aforesaid decisions, what emerges is that there is no

presumption of a joint Hindu family but on the evidence if it is established that the
property was joint Hindu family and the other properties were acquired out of that
nucleus, if the initial burden is discharged by the person who claims joint Hindu family,
then the burden shifts to the party alleging self-acquisition to establish affirmatively
that property was acquired without the aid of the joint family property by cogent and
necessary evidence."

Rohit Shekhar v. Narayan Dutt Tiwari (Delhi)(Short Note) : Law Finder Doc Id # 270796

2011(4) R.C.R.(Criminal) 307

NUTSHELL

DNA Test - ND Tiwari's case - It is a classic judgment on the question of DNA Test - Foreign and
Indian law threadbare discussed.

IMPORTANT

DNA Test - Court can direct a person to give blood sample for DNA Test to ascertain paternity of a
child - On refusal of said person to give sample Court has no power to compel him to give the
sample - Court may, however, draw adverse inference in facts of case, but not in all cases.

IMPORTANT

DNA Test - Scientific accuracy - This scientific test has a 99.99% chance of correct conclusions.
A. Civil Procedure Code, Section 75(e) - Evidence Act, Section 114 - Civil Procedure Code, Order 26
Rule 10-A - DNA Test - Dispute over paternity of child - Court directing the alleged biological father
(Defendant) to give sample for DNA profiling - Defendant not complying with the order of Court may
draw - Court has no power to compel or to direct forcible drawing of sample - In case of refusal
Court may draw an adverse inference in facts of case, but there can be no rule that in every refusal
adverse inference may be drawn. 2003(2) RCR (Civil) 795 : 1986(2) HLR 219, relied.

[Paras 101, 126, 128, 129, 130 and 131]

B. Constitution of India, Article 21 - Right to privacy whether absolute - No - Held, right to privacy
and confidentiality is not an absolute right and could be reasonably curtailed - In case of conflict
between the the fundamental rights, it is the right which would advance public interest and public
morality would be enforceable.

[Paras 74, 78 and 80]

C. Evidence Act, Sections 114 and 112 - Civil Procedure Code, Section 75(e) - Civil Procedure Code,
Order 26, Rule 10-A - DNA Test - Dispute over paternity of Child - Court directing the alleged
biological father to give blood sample for DNA Testing - Refusal by alleged father only on the ground
to preserve, protect and defend his personal dignity and that he cannot be compelled to undergo
DNA test - Held, it constituted wilful and wrongful refusal to comply with a valid court order - Held :-

(i) It would be possible for adverse inference to be drawn from a refusal, regardless of
whether the refusal occurred before or after the making of the direction.
(ii) The presumption of paternity would follow upon a refusal by an adult person to
give the blood sample for testing - The burden of proving that he is not be father of
the child then has to fall on the person refusing to give the specimen - Such a
presumption can be rebutted only by clear and convincing evidence.
(iii) Evidence would be evaluated by the Court and an appropriate inference with
regard to the unreasonable refusal by the person to submit to DNA profiling would be
required to be drawn at that stage.
[Paras 171, 173, 186, 191, 192 adn 193]

D. Civil Procedure Code, Section 75(e) - Civil Procedure Code, Order 26, Rule 10-A - Dispute over
paternity of child - An examination of judicial precedents and writings in the issue suggest that,
hypothetically, in order to conclude whether `X' was the father of `Y' born to `Z' (the mother), the
evidence of the following facts is essential :-

(i) Whether `Y' was full term child and calculation of the proximate date/period of Y's
conception by mother `Z'.
(ii) Evidence that the mother `Z' had an unprotected and exclusive sexual relationship
only with the alleged father `X' at the time encompassing the possible period of
conception.
(iii) The above evidence may be supported by circumstantial evidence in the nature of
photographs, accessibility declarations furnished by `X' and `Z' regarding `Y' etc.
If there was clear and convincing evidence to the above effect, it could be conclusively held that the
putative father was the father of the child.

[Para 189]

E. Civil Procedure Code, Section 151 - Civil Procedure Code, Section 75(e) - Civil Procedure Code,
Order 26, Rule 10-A - Constitution of India, Article 21 - DNA Test - Dispute over paternity of child -
Civil Court can direct the alleged biological father to give blood sample for DNA profiling, to
determine paternity but Civil Court has no power to direct forcible drawing of sample - Forcible
drawing of blood will be intrusion on the right of a party under Article 21 of Constitution of India.

[Paras 93, 94 and 101]

F. Civil Procedure Code, Section 75(e) - Civil Procedure Code, Order 26, Rule 10-A - DNA Test -
Dispute over paternity of Child - The Child has a right to ascertain his this biological origin not only
in the social context or satisfaction of a child's right to know his origins - Knowledge of biological
origins would enable prevention of incestuous relationships - The child could enforce the right to be
brought up by his or her father/mother and family.

[Paras 102 and 103]

G. Civil Procedure Code, Section 75(e) - DNA Test - Value, significance and importance of DNA
profiling explained.

[Paras 103, 114 and 115]

H. Civil Procedure Code, Section 75(e) - Civil Procedure Code, Order 26, Rule 10-A - Constitution of
India, Article 21 - DNA Test - Dispute over paternity of child - Court can order the alleged biological
father to give blood sample for DNA testing for determining fact of paternity - It is not violative of
Article 21 of Constitution.

[Paras 205, 206 and 207]

I. Civil Procedure Code, Sections 75(e) and 151 - Civil Procedure Code, Order 26, Rule 10-A - DNA
Testing - Scientific accuracy - This scientific test has a 99.99% chance of correct conclusions and is
perceived as an objective scientific test which may be difficult for an individual to refute - Refusal
therefore to give a blood sample for DNA profiling is not seen as legitimate. 2009(1) RCR (Civil) 932,
relied.

[Paras 108, 109 and 110]

J. Criminal Procedure Code, Sections 53, 53-A, 54 and 67 - DNA Test - Involuntary taking of blood
sample whether permissible - DNA profiling has been statutorily recognized in the Code of Criminal
Procedure - Sections 53 and 54 of Criminal Procedure Code (as amended with effect from
31.12.2009) authorize the Police to ask a person to give blood sample for Criminal investigation and
use such force as is reasonably necessary. 2010(2) RCR (Crl.) 896 : 2010(3) Recent Apex Judgment
(RAJ) 257, relied.

[Paras 29, 32, 90 and 112]

K. Evidence Act, Section 112 - Dispute over paternity of child - An issue of paternity may be
established in three ways - Firstly, in accordance with the marital presumption rule (Section 112 of
the Evidence Act); (or,) recognition of the paternity by the party; or, lastly by a judicial
determination of paternity.

M. Nagabhushana v. State of Karnataka (SC) : Law Finder Doc Id # 250864

2011 AIR (SC) 1113

IMPORTANT

A party abusing process of Court - Object was to hold up the proceedings - Cost of Rs. 10 lakhs
imposed.

NUTSHELL

The principles of Constructive Res Judicata, as explained in explanation IV to Section 11 of the CPC,
are also applicable to writ petitions.

A. Civil Procedure Code, Section 11 - Res judicata - Principles of res judicata and its history traced -
Held :-

(i) Doctrine of res judicata is not technical doctrine but a fundamental principle which
sustains rule of law in ensuring finality in litigation.
(ii) The principles of res judicata are of universal application as it is based on two age
old principles, namely, `interest reipublicae ut sit finis litium' which means that it is in
the interest of the State that there should be an end to litigation.
(iii) No one ought to be vexed twice in a litigation if it appears to the Court that it is
for one and the same cause.
(iv) This principle of finality of litigation is based on high principle of public policy.
[Paras 14 and 15]

B. Civil Procedure Code, Section 11 - Constructive res judicata - An issue which was known to a
party not raised in proceedings - The issue cannot be raised in subsequent proceedings - Doctrine of
constructive res judicata would apply - While applying the principles of Res Judicata the Court should
not be hampered by any technical rules of interpretation - Further held :-

The principles of Constructive Res Judicata, as explained in explanation IV to Section 11 of the CPC,
are also applicable to writ petitions.

[Paras 19, 20 and 27]

C. Civil Procedure Code, Sections 35 and 35-A - Abuse of process of Court - Appellant re-agitating an
already decided case - The main purpose was to hold up the proceedings - It is abuse of process of
Court - Cost of Rs. 10 lakhs imposed on appellant to be paid to High Court Legal Services Authority -
Cost be recovered as arrears of land revenue if not paid.
[Paras 47, 49, 28 and 30]

D. Civil Procedure Code, Section 11 Explanation IV - Constitution of India, Article 226 - Res judicata
- The principles of Constructive Res Judicata, as explained in explanation IV to Section 11 of the
CPC, are also applicable to writ petitions - The attempt to re-argue the case which has been finally
decided by the Court of last resort is a clear abuse of process of the Court, regardless of the
principles of Res Judicata. 1990(2) SCC 715 : 1998(3) SCC 573, relied.

[Paras 27 and 21]

E. Civil Procedure Code, Sections 151 and 11 - Abuse of Process of Court - The attempt to re-argue
the case which has been finally decided by the Court of last resort is a clear abuse of process of the
Court, regardless of the principles of Res Judicata - While applying the principles of Res Judicata the
Court should not be hampered by any technical rules of interpretation. 1998(3) SCC 573, relied.

[Paras 28, 30 and 21]

F. Civil Procedure Code, Sections 11, 35 and 35-A - Abuse of Process of Court - Appellant reagitating
an already decided case by Supreme Court - Appellant thus abused process of Court - Costs of Rs.
10 lakhs imposed with direction to pay the Costs in favour of High Court Legal Authority - Costs to
be recovered as Land Revenue it not paid.

[Para 49]

16. Justice Tek Chand delivering the unanimous Full Bench decision in the case of Mussammat
Lachhmi v. Mussammat Bhulli (ILR Lahore Vol.VIII 384) traced the history of this doctrine both in
Hindu and Mohammedan jurisprudence as follows:-

"In the Mitakshra (Book II, Chap. I, Section V, verse 5) one of the four kinds of
effective answers to a suit is "a plea by former judgment" and in verse 10, Katyayana
is quoted as laying down that "one against whom a judgment had formerly been
given, if he bring forward the matter again, must be answered by a plea of Purva
Nyaya or former judgment" (Macnaughten and Colebrooke's translation, page 22). The
doctrine, however, seems to have been recognized much earlier in Hindu
Jurisprudence, judging from the fact that both the Smriti Chandrika (Mysore Edition,
pages 97-98) and the Virmitrodaya (Vidya-Sagar Edition, page 77) base the defence
of Prang Nyaya (=former decision) on the following text of the ancient lawgiver Harita,
who is believed by some Orientalists to have flourished in the 9th Century B.C. and
whose Smriti is now extant only in fragments:-
"The plaintiff should be nonsuited if the defendant avers: `in this very affair, there
was litigation between him and myself previously,' and it is found that the plaintiff had
lost his case".
There are texts of Prasara (Bengal Asiatic Society Edition, page 56) and of the
Mayukha (Kane's Edition, page 15) to the same effect.
Among Muhammadan law-givers similar effect was given to the plea of "Niza-i-
munfasla" or "Amar Mania taqrir mukhalif." Under Roman Law, as administered by the
Proetors' Courts, a defendant could repel the plaintiff's claim by means of `exceptio
rei judicatoe" or plea of former judgment. The subject received considerable attention
at the hands of Ruman jurists and as stated in Roby's Roman Private Law (Vol.II, page
338) the general principle recognised was that "one suit and one decision was enough
for any single dispute" and that "a matter once brought to trial should not be tried
except, of course, by way of appeal".

17. The learned Judge also noted that in British India the rule of Res Judicata was first introduced by
Section 16 of the Bengal Regulation, III of 1973 which prohibited the Zilla and City Courts from
entertaining any cause which, from the production of a former decree or the record of the Court,
appears to have been heard and determined by any Judge or any Superintendent of a Court having
competent jurisdiction. The learned Judge found that the earliest legislative attempt at codification of
the law on the subject was made in 1859, when the first Civil Procedure Code was enacted,
whereunder Section 2 of the Code barred every Court from taking cognizance of suits which, on the
same cause of action, have been heard and determined by a Court of competent jurisdiction. The
learned Judge opined, and in our view rightly, that this was partial recognition of the English rule in
so far as it embodied the principles relating to Estoppel by judgment or Estopel by record.

22. A Constitution Bench of this Court in Devilal Modi v. Sales Tax Officer, Ratlam & Ors. - AIR 1965
SC 1150, has explained this principle in very clear terms:

"But the question as to whether a citizen should be allowed to challenge the validity of
the same order by successive petitions under Art. 226, cannot be answered merely in
the light of the significance and importance of the citizens' fundamental rights. The
general principle underlying the doctrine of res judicata is ultimately based on
considerations of public policy. One important consideration of public policy is that the
 decisions pronounced by courts of competent jurisdiction should be final, unless they
are modified or reversed by appellate authorities; and the other principle is that no
one should be made to face the same kind of litigation twice over, because such a
process would be contrary to considerations of fair play and justice, vide : Daryao v.
State of U.P., 1962-1 SCR 575 : (AIR 1961 SC 1457)."

Laxman Tatyaba Kankate v. Taramati Harishchandra Dhatrak (SC) : Law Finder Doc Id # 212000

2010 AIR (SC) 3025

A. Specific Relief Act, 1963, Section 20 - Agreement to sell land - Sale deed not executed by seller
for a long period - Suit for specific performance - Contention of seller that there has been
considerable increase in the price of the land - It cannot be a ground for denying the decree of
specific performance - However, the purchaser was willing to pay Rs. 1.50 lakhs against sale
consideration of Rs. 40,000/-.

[Paras 17 and 18]

B. Specific Relief Act, 1963, Section 13(1)(c) - Agreement to sell the property - Property was
mortgaged with a society - Purchaser has the right to compel the seller to redeem the mortgage and
obtain a valid discharge and then specifically perform the contract in its favour.

[Para 13]

C. Specific Relief Act, 1963, Section 20 - Agreement to sell - Earnest money of Rs. 10,000/- paid to
seller - Seller backing out - Decree of specific performance passed in favour of purchaser not only on
merits but on equity basis in the following circumstances :-

1. Sellers have used the sum of Rs. 10,000/- for a long period and enjoyed the fruits of property .

2. Contention of sellers that agreement was false and they had only taken a loan and signed blank
papers and security - Contention not proved.

3. Contention of seller that price of land had increased - This is no ground to deny decree of specific
performance.

4. However, purchaser was willing to pay Rs. 1.50 lakhs against sale consideration of Rs. 40,000/- -
Equity is in favour of purchaser. 2008(2) RCR (Civil) 732 : 2008(2) RAJ 663, (2008) 7 SCC 310
relied.

[Paras 15 to 19]

Chanmuniya v. Virendra Kumar Singh Kushwaha (SC) : Law Finder Doc Id # 219576

2011(1) SCC 141

IMPORTANT

A man and woman living together as husband and wife for a long time - Women whether entitled to
maintenance under Section 125 CrPC without proof of marriage - Matter referred to Full Bench.

A. Criminal Procedure Code, Section 125 - Hindu Marriage Act, 1955, Section 7(1) - A woman and
man living as husband and wife for a considerable period - Whether presumption of marriage arises -
Wife whether entitled to maintenance from the man under Section 125 CrPC - There are divergent
views on this point - The following questions referred to Full Bench by DB :-

1. Whether the living together of a man and woman as husband and wife for a considerable period of
time would arise the presumption of a valid marriage between them and whether such a
presumption would entitle the woman to maintenance under Section 125 CrPC.

2. Whether strict proof of marriage is essential for a claim of maintenance under Section 125 CrPC
having regard to the provisions of Domestic Violence Act, 2005.

3. Whether a marriage performed according to customary rites and ceremonies, without strictly
fulfilling the requisites of Section 7(1) of the Hind Marriage Act, 1955, or any other personal law
would entitle the woman to maintenance under Section 125 CrPC.

4. DB however opined that a broad and expansive interpretation should be given to the term `wife'
to include even those cases where a man woman have been living together as husband and wife for
a reasonably long period of time , and strict proof of marriage should not be a pre-condition for
maintenance under Section 125 of the CrPC, so as to fulfill the true spirit and essence of the
beneficial provision of maintenance under Section 125.

[Para 45]

B. Hindu Marriage Act, 1955, Section 7(1) - Criminal Procedure Code, Section 125 - Whether a
marriage performed according to customary rites and ceremonies, without strictly fulfilling the
requisites of Section 7(1) of the Hindu Marriage Act, 1955, or any other personal law would entitle
the woman to maintenance under Section 125 CrPC - Matter referred to full Bench.

[Paras 44 and 45]

C. Protection of Women from Domestic Violence Act, 2005, Sections 2(f) and 26 - Meaning of term
"domestic relationship" - The Act gives a very wide interpretation to the term `domestic relationship'
as to take it outside the confines of a marital relationship, and even includes live-in relationships in
the nature of marriage within the definition of `domestic relationship' under Section 2(f) of the Act -
Women in live-in relationships are also entitled to all the reliefs given in the said Act.

Karam Kapahi v. M/s. Lal Chand Public Charitable (SC) : Law Finder Doc Id # 209145

2010(4) SCC 753

NUTSHELL

A party on the admission of other party can press for judgment as a matter of legal right -
Admissions can be interfered from facts and circumstances of the case - Admissions in answer to
interrogatories are also covered under this Rule.

A. Civil Procedure Code, Order 12, Rule 6 - Judgment on admission - A party can press for judgment
on admission as a matter of legal right on admission of other party - However, provision under Order
12, Rule 6 of the code is enabling, discretionary and permissive and is neither mandatory nor it is
peremptory since the word "may" has been used.

[Paras 48, 59 and 50]

B. Approbate and Reprobate - Meaning :

(1) The phrase `approbate and reprobate' is borrowed from Scots Law where it is
used to express the Common law principles of Election, namely, that no party can
accept and reject the same instrument.
(2) The doctrine of election is not however confined to instruments - A person cannot
say at time that a transaction is valid and thereby obtain some advantage, to which he
could only be entitled on the footing that it is valid and then turn round and say it is
void for the purpose of securing some other advantage - That is to approbate and
reprobate the transaction. AIR 1956 SC 593 and AIR 1965 SC 241. relied.
(3) The maxim that a reprobate is only one application of the doctrine of election.
[Paras 62 and 66]

C. Evidence Act, Section 116 - Transfer of Property Act, Section 114 - Civil Procedure Code, Order
12, Rule 6 - Plaintiff filing Civil suit for possession and arrears of rent - Tenant questioned title of
plaintiff and contended that plaintiff was not its lessor and had no right to receive the rent - But on
the other hand tenant filing petition seeking the equitable remedy against forfeiture under Section
114 of the Transfer of Property Act where it has proceeded on the basis that the Trust is its Lessor -
Thus tenant sought to approbate and reprobate - Tenant not entitled to an equitable remedy or
discretionary remedy - Order of eviction upheld.

[Paras 61 and 75]

D. Constitution of India, Article 136 - The jurisdiction of Supreme Court under Article 136 of
Constitution is basically one of conscience - The jurisdiction is plenary and residuary in nature - It is
unfettered and not confined within definite bounds - Discretion to be exercised here is subject to
only one limitation and that is the wisdom and sense of justice of the judges - Further held :

(1) This jurisdiction has to be exercised only in suitable cases and vary sparingly. AIR
1950 SC 169. relied.
(2) Conduct of the parties is relevant when the Court is exercising its jurisdiction
under Article 136.2007(2) RCR (Civil) 108 : 2007(1) RAJ 789. relied.
[Para 76]

E. Civil Procedure Code, Order 12, Rule 6 - Judgment on admission - A party on the admission of
other party can press for judgment as a matter of legal right - However, provision under Order 12,
Rule 6 of the code is enabling, discretionary and permissive and is neither mandatory nor it is
peremptory since the word "may" has been used - Law with regard to Judgment on admission
summed up :

(1) Admissions can be interfered from facts and circumstances of the case. 2005(3)
RCR (Civil) 186 : 2005(2) RCR (Rent) 23. relied.
(2) Admissions in answer to interrogatories are also covered under this Rule.
(3) Court should not narrow down the ambit of Order 12, Rule 6 of CPC as the object
is to enable a party to obtain speedy Judgment. 2000(4) RCR (Civil) 89. relied.
(4) A declaration under Specific Relief Act may be given merely on admission of party.
(5) The Rule 6 of CPC is not confined to pleadings or under Rules 1 to 4 of CPC in the
same order but also to admissions made elsewhere during trial.
[Paras 48, 50, 51, 53, 54, 56 to 59]

F. Civil Procedure Code, Order 12, Rule 6 - Judgment on admission - A party, on the admission of
the other party, can press for judgment, as a matter of legal right - However, the Court always
retains its-discretion in the matter of pronouncing judgment.

[Para 48]

G. Civil Procedure Code, Order 12, Rule 6 - Judgment on admission - Suit for arrears of rent and
possession - Held :

(1) Where the controversy is between the parties on an admission of non- payment of
rent, judgment can be rendered on admission by Court.
(2) A Party on the admission of the other party can press for judgment as a matter of
legal right - However, the Court always retains its-discretion in the matter of
pronouncing judgment.
[Paras 48 and 55]
Vikram Vir Vohra v. Shalini Bhalla (SC) 2010(1) HLR 521
IMPORTANT

Custody of minor child - Welfare of child is of paramount importance - A child is not a chattel nor is
he/she an article of personal property to be shared in equal halves.

IMPORTANT

Custody of minor child - Welfare of child is of paramount importance and not the rights of parents
under a statute.

IMPORTANT

Order of custody of minor child - Order is not rigid and final but is in the nature of interim orders and
with the passage of time, the Court is entitled to modify the order in the interest of the minor child.

A. Guardians and Wards Act, 1890, Sections 7, 8 and 17 - Hindu Marriage Act, 1955, Section 13-B -
Hindu Marriage Act, 1955, Section 26 - Custody of minor child - Divorce by mutual consent -
Custody of male child aged 8/10 years given to wife with visiting rights to father - Wife getting
better job in Australia and wanted to take child to Australia - The child categorically stated before
trial Court, High Court and in Supreme Court that he wanted to live with his mother - Wife gave an
undertaking to bring the child to India twice a year to comply with visiting rights of father - Held :

(1) The welfare of the child is of paramount importance in matters relating to child
custody and may have a primacy ever over statutory provisions.2008(4) RCR (Civil)
551 : 2008(5) RAJ 614. Relied.
(2) A child is not a chattel nor is he/she an article of personal property to be shared in
equal halves.
[Paras 13, 14, 16, 17 and 23]

B. Hindu Marriage Act, 1955, Section 26 - Divorce between parties by mutual consent - Custody of
minor child - Principles laid down under Guardians and Wards Act are equally applicable in dealing
with the custody of a child under Section 26 of the Act since in both the situations two things are
common; the first, being orders relating to custody of a growing child and secondly, the paramount
consideration of the welfare of the child - Such considerations are never static nor can they be
squeezed in a strait jacket. Therefore, each case has to be dealt with on the basis of its peculiar
facts.

[Para 19]

C. Hindu Marriage Act, 1955, Section 26 - Divorce by mutual consent - Custody of minor child aged
8/10 years - In determining the question as to who should be given custody of a minor child, the
paramount consideration is the "welfare of the child" and not rights of the parents under a statute
for the time being in force - In the instant case custody given to mother who got a job in Australia
and child expressed his desire to go with mother.

[Para 20]

D. Guardian and Wards Act, 1890, Sections 7, 8 and 17 - Hindu Marriage Act, 1955, Section 26 -
Order of Court giving custody of minor child to mother - Custody orders are not rigid and final -
There are in the nature of interim orders - With the passage of time , the Court is entitled to modify
the order in the interest of the minor child even if the orders are based on consent. 1973(1) SCC
840 and 1998(1) RCR (Civil) 190. Relied.

[Para 23]

17. In Rosy Jacob v. Jacob A Chakramakkal -[(1973) 1 SCC 840], a three judge Bench of this Court
held that all orders relating to custody of minors were considered to be temporary orders. The
learned judges made it clear that with the passage of time, the Court is entitled to modify the order
in the interest of the minor child. The Court went to the extent of saying that even if orders are
based on consent, those orders can also be varied if the welfare of the child so demands.

18. The aforesaid principle has again been followed in Dhanwanti Joshi v. Madhav Unde, 1998(1)
R.C.R.(Civil) 190 : [(1998) 1 SCC 112].

19. Even though the aforesaid principles have been laid down in proceedings under the Guardians
and Wards Act, 1890, these principles are equally applicable in dealing with the custody of a child
under Section 26 of the Act since in both the situations two things are common; the first, being
orders relating to custody of a growing child and secondly, the paramount consideration of the
welfare of the child. Such considerations are never static nor can they be squeezed in a strait jacket.
Therefore, each case has to be dealt with on the basis of its peculiar facts.

20. In this connection, the principles laid down by this Court in Gaurav Nagpal v. Sumedha Nagpal
reported in 2008(4) R.C.R.(Civil) 928 : 2008(6) R.A.J. 422 : (2009) 1 SCC 42 are very pertinent.
Those principles in paragraphs 42 and 43 are set out below :

"42. Section 26 of the Hindu Marriage Act, 1955 provides for custody of children and
declares that in any proceeding under the said Act, the court could make, from time to
time, such interim orders as it might deem just and proper with respect to custody,
maintenance and education of minor children, consistently with their wishes, wherever
possible.
43. The principles in relation to the custody of a minor child are well settled. In
determining the question as to who should be given custody of a minor child, the
paramount consideration is the "welfare of the child" and not rights of the parents
under a statute for the time being in force".
Subhan Rao v Parvathi Bai (SC) 2010(10) SCC 235
NUTSHELL

A Hindu female getting life time right of enjoyment of land in lieu of maintenance - Hindu Succession
Act, 1956 coming into force - By virtue of said Act, she became full owner.

Hindu Succession Act, 1956, Section 14(1) - A landowner giving right of enjoyment of land to his
illegitimate son and his wife in lieu of maintenance till their life time - This happened in the year
1941 - Maintenance deed stipulated that in case of their death without having male issue, that land
shall revert to family of executants - Death of illegitimate son - Hindu Succession Act, 1956 coming
into force - Wife of illegitimate son became full owner of land in terms of Section 14(1) of said Act
without any restriction on her right to deal with the property in the manner she liked.(1977) 3 SCC
99, 1988(2) RRR 1 relied.

[Paras 1 and 16]

A. Shanmugam v. Ariya K.R.K.M.N.P. Sangam Tr. Pres. (SC) 2012(3) Recent Apex Judgments
(R.A.J.) 56 : 2012(3) R.C.R.(Civil) 1
NUTSHELL

Long possession of property by a watchman/caretaker - The person acquires no interest in property.

NUTSHELL

A partly prolonged litigation for 18 years on frivolous and false pleadings - A cost of Rs. 25,000/-
imposed.

NUTSHELL
In pre-independence era people used to feel proud to speak truth in Courts irrespective of the
consequences - However, post-independence period has seen drastic changes in our value system -
The entire journey of a judge is to discern the truth from the pleadings, documents and arguments
of the parties - Truth is the basis of justice delivery system.

A. Evidence Act, Sections 63, 64 and 65 - Adverse possession - Litigation of frivolous pleas - Long
possession of property by a watchman/caretaker - The person acquires no interest in property .

ON FACTS

In the instant case a watchman was in possession property for long period and when asked to hand
over possession, he engaged owner in Civil litigation by raising false pleas and irrelevant documents
which litigation prolonged for 18 years when reached Supreme Court - Supreme Court directed the
watchman to vacate within two years - A cost of Rs. 25,000/- imposed - Supreme Court held :-

(1) In the instant case, we would have ordinarily imposed heavy costs and would have ordered
restitution but looking to the fact that the appellant is a Watchman and may not be able to bear the
financial burden, we dismiss these appeals with very nominal costs of Rs. 25,000/-. 2010(2) SCC
114, relied.

[Paras 19, 20m 42 and 43]

B. Civil Procedure Code, Sections 35 and 35-A - Civil Procedure Code, Order 20, Rule 12 - Cost -
Mesne profits - Litigation on false grounds - A party to suit suppressing material facts and
introducing false pleas and producing irrelevant documents - As a result which Court got into trap
and reached and entirely erroneous finding resulting in inordinate delay of 17 years for disposal of
small case - Once the court discovers falsehood, concealment, distortion, obstruction or confusion in
pleadings and documents, the court should in addition to full restitution impose appropriate costs.

[Paras 40, 41 and 42]

C. Civil Procedure Code, Order 6, Rule 2 - Pleadings - A party to suit introducing false peas and
irrelevant documents - Duty of Court in such cases :-

(i) It is the bounden duty of the Court to uphold the truth and do justice.

(ii) Every litigant is expected to state truth before the law court whether it is pleadings, affidavits or
evidence - Dishonest and unscrupulous litigants have no place in law courts.

(iii) The ultimate object of the judicial proceedings is to discern the truth and do justice - It is
imperative that pleadings and all other presentations before the Court should be truthful.

(iv) Once the court discovers falsehood, concealment, distortion, obstruction or confusion in
pleadings and documents, the court should in addition to full restitution impose appropriate costs.

(v) It is the bounden obligation of the Court to neutralize any unjust and/or undeserved benefit or
advantage obtained by abusing the judicial process.

[Para 42]

D. Civil Procedure Code, Order 6, Rule 2 - Pleadings - The pleadings are foundation of litigation -
Held :-

(1) The pleadings must set-forth sufficient factual details to the extent that it reduces the ability to
put forward a false or exaggerated claim or defence - The pleadings must inspire confidence and
credibility - If false averments, evasive denials or false denials are introduced, then the Court must
carefully look into it while deciding a case and insist that those who approach the Court must
approach it with clean hands.

[Paras 26 and 27]

E. Civil Procedure Code, Order 10, Rule 2 - Civil Procedure Code, Order 14, Rules 1 and 2 - Framing
of issues - Framing of issues is a very important stage of a civil trial - it is imperative for a judge to
critically examine the pleadings of the parties before framing of issues - Careful framing of issues
also helps in proper examination and cross-examination of witnesses and final arguments in the case
- Importance of Order 10 Rule 2 (oral examination of party or companion of party) explained.

[Paras 30, 31 and 32]

F. False evidence - Tendency of introducing false pleadings and forged and fabricated documents by
the litigants - Courts have to ensure that unscrupulous litigant is not permitted to derive any benefit
by abusing the judicial process. 2011(3) RCR (Civil) 932 : 2011(4) Recent Apex Judgments (RAJ)
390, relied.

[Paras 35, 37 and 38]

G. Evidence Act, Section 3 - Evidence of a witness is Court - In pre-independence era people used to
feel proud to speak truth in Courts irrespective of the consequences - However, post-independence
period has seen drastic changes in our value system - The entire journey of a judge is to discern the
truth from the pleadings, documents and arguments of the parties - Truth is the basis of justice
delivery system. 2010(2) SCC 114, relied.

The question often arises as to how we can solve this menace within the frame work of law. A
serious endeavour has been made as to how the present system can be improved to a large extent.
In the case of Maria Margarida Sequeria Fernandes and Others v. Erasmo Jack de Sequeria (Dead)
through L.Rs., 2012(2) Recent Apex Judgments (R.A.J.) 6 : 2012(2) R.C.R.(Civil) 441 : (2012)3
SCALE 550 (of which one of us, Bhandari, J. was the author of the judgment), this Court had laid
stress on purity of pleadings in civil cases. We deem it appropriate to set out paras 61 to 79 of that
judgment dealing with broad guidelines provided by the Court which are equally relevant in this case
:-

"61. In civil cases, pleadings are extremely important for ascertaining the title and
possession of the property in question.
62. Possession is an incidence of ownership and can be transferred by the owner of an
immovable property to another such as in a mortgage or lease. A licensee holds
possession on behalf of the owner.
63. Possession is important when there are no title documents and other relevant
records before the Court, but, once the documents and records of title come before
the Court, it is the title which has to be looked at first and due weightage be given to
it. Possession cannot be considered in vacuum.
64. There is a presumption that possession of a person, other than the owner, if at all
it is to be called possession, is permissive on behalf of the title-holder. Further,
possession of the past is one thing, and the right to remain or continue in future is
another thing. It is the latter which is usually more in controversy than the former,
and it is the latter which has seen much abuse and misuse before the Courts.
65. A suit can be filed by the title holder for recovery of possession or it can be one for
ejectment of an ex-lessee or for mandatory injunction requiring a person to remove
himself or it can be a suit under Section 6 of the Specific Relief Act to recover
possession.
66. A title suit for possession has two parts - first, adjudication of title, and second,
adjudication of possession. If the title dispute is removed and the title is established in
one or the other, then, in effect, it becomes a suit for ejectment where the defendant
must plead and prove why he must not be ejected.
67. In an action for recovery of possession of immovable property, or for protecting
possession thereof, upon the legal title to the property being established, the
possession or occupation of the property by a person other than the holder of the legal
title will be presumed to have been under and in subordination to the legal title, and it
will be for the person resisting a claim for recovery of possession or claiming a right to
continue in possession, to establish that he has such a right. To put it differently,
wherever pleadings and documents establish title to a particular property and
possession is in question, it will be for the person in possession to give sufficiently
detailed pleadings, particulars and documents to support his claim in order to continue
in possession.
68. In order to do justice, it is necessary to direct the parties to give all details of
pleadings with particulars. Once the title is prima facie established, it is for the person
who is resisting the title holder's claim to possession to plead with sufficient
particularity on the basis of his claim to remain in possession and place before the
Court all such documents as in the ordinary course of human affairs are expected to
be there. Only if the pleadings are sufficient, would an issue be struck and the matter
sent to trial, where the onus will be on him to prove the averred facts and documents.
69. The person averring a right to continue in possession shall, as far as possible, give
a detailed particularized specific pleading along with documents to support his claim
and details of subsequent conduct which establish his possession.
70. It would be imperative that one who claims possession must give all such details
as enumerated hereunder. They are only illustrative and not exhaustive.
(a) who is or are the owner or owners of the property;
(b) title of the property;
(c) who is in possession of the title documents
(d) identity of the claimant or claimants to possession;
(e) the date of entry into possession;
(f) how he came into possession - whether he purchased the property or inherited or
got the same in gift or by any other method;
(g) in case he purchased the property, what is the consideration; if he has taken it on
rent, how much is the rent, license fee or lease amount;
 (h) if taken on rent, license fee or lease - then insist on rent deed, license deed or
lease deed;
(i) who are the persons in possession/occupation or otherwise living with him, in what
capacity; as family members, friends or servants etc.;
(j) subsequent conduct, i.e., any event which might have extinguished his entitlement
to possession or caused shift therein; and
(k) basis of his claim that not to deliver possession but continue in possession.
71. Apart from these pleadings, the Court must insist on documentary proof in support
of the pleadings. All those documents would be relevant which come into existence
after the transfer of title or possession or the encumbrance as is claimed. While
dealing with the civil suits, at the threshold, the Court must carefully and critically
examine pleadings and documents.
72. The Court will examine the pleadings for specificity as also the supporting material
for sufficiency and then pass appropriate orders.
73. Discovery and production of documents and answers to interrogatories, together
with an approach of considering what in ordinary course of human affairs is more
likely to have been the probability, will prevent many a false claims or defences from
sailing beyond the stage for issues.
74. If the pleadings do not give sufficient details, they will not raise an issue, and the
Court can reject the claim or pass a decree on admission.
75. On vague pleadings, no issue arises. Only when he so establishes, does the
question of framing an issue arise. Framing of issues is an extremely important stage
in a civil trial. Judges are expected to carefully examine the pleadings and documents
before framing of issues in a given case.
76. In pleadings, whenever a person claims right to continue in possession of another
property, it becomes necessary for him to plead with specificity about who was the
owner, on what date did he enter into possession, in what capacity and in what
manner did he conduct his relationship with the owner over the years till the date of
suit. He must also give details on what basis he is claiming a right to continue in
possession. Until the pleadings raise a sufficient case, they will not constitute sufficient
claim of defence.
77. XXXX XXXX XXXX
78. The Court must ensure that pleadings of a case must contain sufficient particulars.
Insistence on details reduces the ability to put forward a non-existent or false claim or
defence.
79. In dealing with a civil case, pleadings, title documents and relevant records play a
vital role and that would ordinarily decide the fate of the case."

23. We reiterate the immense importance and relevance of purity of pleadings. The pleadings need
to be critically examined by the judicial officers or judges both before issuing the ad interim
injunction and/or framing of issues.

In Ritesh Tewari and Another v. State of Uttar Pradesh and Others, (2010)10 SCC 677
this Court reproduced often quoted quotation which reads as under :
"Every trial is a voyage of discovery in which truth is the quest"

GRANT OR REFUSAL OF INJUNCTION

33. In Maria Margarida Sequeria Fernandes (supra), this Court examined the importance of grant or
refusal of an injunction in paras 86 to 89 which read as under :-

"86. Grant or refusal of an injunction in a civil suit is the most important stage in the
civil trial. Due care, caution, diligence and attention must be bestowed by the judicial
officers and judges while granting or refusing injunction. In most cases, the fate of the
case is decided by grant or refusal of an injunction. Experience has shown that once
an injunction is granted, getting it vacated would become a nightmare for the
defendant. In order to grant or refuse injunction, the judicial officer or the judge must
carefully examine the entire pleadings and documents with utmost care and
seriousness.
87. The safe and better course is to give short notice on injunction application and
pass an appropriate order after hearing both the sides. In case of grave urgency, if it
becomes imperative to grant an ex parte ad interim injunction, it should be granted
for a specified period, such as, for two weeks. In those cases, the plaintiff will have no
inherent interest in delaying disposal of injunction application after obtaining an ex
parte ad interim injunction. The Court, in order to avoid abuse of the process of law
may also record in the injunction order that if the suit is eventually dismissed, the
plaintiff undertakes to pay restitution, actual or realistic costs. While passing the
order, the Court must take into consideration the pragmatic realities and pass proper
order for mesne profits. The Court must make serious endeavour to ensure that even-
handed justice is given to both the parties.
88. Ordinarily, three main principles govern the grant or refusal of injunction.
a) prima facie case;
b) balance of convenience; and
 c) irreparable injury, which guide the Court in this regard.
89. In the broad category of prima facie case, it is imperative for the Court to carefully
analyse the pleadings and the documents on record and only on that basis the Court
must be governed by the prima facie case. In grant and refusal of injunction,
pleadings and documents play vital role."

RESTITUTION AND MESNE PROFITS

34. Experience reveals that a large number of cases are filed on false claims or evasive pleas are
introduced by the defendant to cause delay in the administration of justice and this can be
sufficiently taken care of if the Courts adopt realistic approach granting restitution. This Court in the
case of Ramrameshwari Devi v. Nirmala Devi, 2011(3) R.C.R.(Civil) 932 : 2011(4) Recent Apex
Judgments (R.A.J.) 390 : (2011)8 SCC 249 (of which one of us, Bhandari, J. was the author of the
judgment) in paragraph 52 (C, D and G) of the judgment dealt with the aspect of imposition of
actual or realistic costs which are equally relevant for this case reads as under :-

"C. Imposition of actual, realistic or proper costs and or ordering prosecution would go
a long way in controlling the tendency of introducing false pleadings and forged and
fabricated documents by the litigants. Imposition of heavy costs would also control
unnecessary adjournments by the parties. In appropriate cases the courts may
consider ordering prosecution otherwise it may not be possible to maintain purity and
sanctity of judicial proceedings.
D. The Court must adopt realistic and pragmatic approach in granting mesne profits.
The Court must carefully keep in view the ground realities while granting mesne
profits.
G. The principle of restitution be fully applied in a pragmatic manner in order to do
real and substantial justice."

35. Unless wrongdoers are denied profit or undue benefit from frivolous litigations, it would be
difficult to control frivolous and uncalled for litigations. Experience also reveals that our Courts have
been very reluctant to grant the actual or realistic costs. We would like to explain this by giving this
illustration. When a litigant is compelled to spend Rs. 1 lac on a frivolous litigation there is hardly
any justification in awarding Rs. 1,000/- as costs unless there are special circumstances of that case.
We need to decide cases while keeping pragmatic realities in view. We have to ensure that
unscrupulous litigant is not permitted to derive any benefit by abusing the judicial process.

36. This Court in another important case in Indian Council for Enviro-Legal Action v. Union of India
and Others, 2011(3) R.C.R.(Civil) 779 : 2011(4) Recent Apex Judgments (R.A.J.) 202 : (2011)8 SCC
161 (of which one of us, Bhandari, J. was the author of the judgment) had an occasion to deal with
the concept of restitution. The relevant paragraphs of that judgment dealing with relevant
judgments are reproduced hereunder :-

193. This Court in Grindlays Bank Limited v. Income Tax Officer, Calcutta, (1980)2
SCC 191 observed as under :-
"...When passing such orders the High Court draws on its inherent power to make all
such orders as are necessary for doing complete justice between the parties. The
interests of justice require that any undeserved or unfair advantage gained by a party
invoking the jurisdiction of the court, by the mere circumstance that it has initiated a
proceeding in the court, must be neutralised. The simple fact of the institution of
litigation by itself should not be permitted to confer an advantage on the party
responsible for it. ..."
194. In Ram Krishna Verma and Others v. State of U.P. and Others, (1992)2 SCC 620
this Court observed as under :-
"The 50 operators including the appellants/private operators have been running their
stage carriages by blatant abuse of the process of the court by delaying the hearing as
directed in Jeevan Nath Bahl's case and the High Court earlier thereto. As a fact, on
the expiry of the initial period of grant after Sept. 29, 1959 they lost the right to
obtain renewal or to ply their vehicles, as this Court declared the scheme to be
operative. However, by sheer abuse of the process of law they are continuing to ply
their vehicles pending hearing of the objections. This Court in Grindlays Bank Ltd. v.
Incometax Officer - [1990]2 SCC 191 held that the High Court while exercising its
power under Article 226 the interest of justice requires that any undeserved or unfair
advantage gained by a party invoking the jurisdiction of the court must be neutralised.
It was further held that the institution of the litigation by it should not be permitted to
confer an unfair advantage on the party responsible for it. In the light of that law and
in view of the power under Article 142(1) of the Constitution this Court, while
exercising its jurisdiction would do complete justice and neutralise the unfair
advantage gained by the 50 operators including the appellants in dragging the
litigation to run the stage carriages on the approved route or area or portion thereof
and forfeited their right to hearing of the objections filed by them to the draft scheme
dated Feb. 26, 1959. ..."
195. This Court in Kavita Trehan v. Balsara Hygiene Products 1994(3) R.R.R. 361 :
(1994) 5 SCC 380 observed as under :-
 "The jurisdiction to make restitution is inherent in every court and will be exercised
whenever the justice of the case demands. It will be exercised under inherent powers
where the case did not strictly fall within the ambit of Section 144. Section 144 opens
with the words "Where and in so far as a decree or an order is varied or reversed in
any appeal, revision or other proceeding or is set aside or modified in any suit
instituted for the purpose, ...". The instant case may not strictly fall within the terms
of Section 144; but the aggrieved party in such a case can appeal to the larger and
general powers of restitution inherent in every court."
196. This Court in Marshall Sons & Co. (I) Ltd. v. Sahi Oretrans (P) Ltd. and Another,
1999(1) R.C.R.(Rent) 251 : (1999)2 SCC 325 observed as under :-
"From the narration of the facts, though it appears to us, prima facie, that a decree in
favour of the appellant is not being executed for some reason or the other, we do not
think it proper at this stage to direct the respondent to deliver the possession to the
appellant since the suit filed by the respondent is still pending. It is true that
proceedings are dragged for a long time on one count or the other and on occasion
become highly technical accompanied by unending prolixity, at every stage providing a
legal trap to the unwary. Because of the delay unscrupulous parties to the proceedings
take undue advantage and person who is in wrongful possession draws delight in
delay in disposal of the cases by taking undue advantage of procedural complications.
It is also known fact that after obtaining a decree for possession of immovable
property, its execution takes long time. In such a situation for protecting the interest
of judgment creditor, it is necessary to pass appropriate order so that reasonable
mesne profit which may be equivalent to the market rent is paid by a person who is
holding over the property. In appropriate cases, Court may appoint Receiver and
direct the person who is holding over the property to act as an agent of the Receiver
with a direction to deposit the royalty amount fixed by the Receiver or pass such other
order which may meet the interest of justice. This may prevent further injury to the
plaintiff in whose favour decree is passed and to protect the property including further
alienation."

IRRELEVANT DOCUMENTS:

40. All documents filed by the appellant along with the plaint have no relevance to the controversy
involved in the case. We have reproduced a list of the documents to demonstrate that these
documents have been filed to mislead the Court. The First Appellate Court has, in fact, got into the
trap and was misled by the documents and reached to an entirely erroneous finding that resulted in
undue delay of disposal of a small case for almost 17 years.

FALSE AND IRRELEVANT PLEAS :

41. The appellant is also guilty of introducing untenable pleas. The plea of adverse possession which
has no foundation or basis in the facts and circumstances of the case was introduced to gain undue
benefit. The Court must be cautious in granting relief to a party guilty of deliberately introducing
irrelevant and untenable pleas responsible for creating unnecessary confusion by introducing such
documents and pleas. These factors must be taken into consideration while granting relief and/or
imposing the costs.

42. On the facts of the present case, following principles emerge :

1. It is the bounden duty of the Court to uphold the truth and do justice.
2. Every litigant is expected to state truth before the law court whether it is pleadings,
affidavits or evidence. Dishonest and unscrupulous litigants have no place in law
courts.
3. The ultimate object of the judicial proceedings is to discern the truth and do justice.
It is imperative that pleadings and all other presentations before the court should be
truthful.
4. Once the court discovers falsehood, concealment, distortion, obstruction or
confusion in pleadings and documents, the court should in addition to full restitution
impose appropriate costs. The court must ensure that there is no incentive for wrong
doer in the temple of justice. Truth is the foundation of justice and it has to be the
common endeavour of all to uphold the truth and no one should be permitted to
pollute the stream of justice.
5. It is the bounden obligation of the Court to neutralize any unjust and/or undeserved
benefit or advantage obtained by abusing the judicial process.
6. Watchman, caretaker or a servant employed to look after the property can never
acquire interest in the property irrespective of his long possession. The watchman,
caretaker or a servant is under an obligation to hand over the possession forthwith on
demand. According to the principles of justice, equity and good conscience, Courts are
not justified in protecting the possession of a watchman, caretaker or servant who was
only allowed to live into the premises to look after the same.
7. The watchman, caretaker or agent holds the property of the principal only on behalf
the principal. He acquires no right or interest whatsoever in such property irrespective
of his long stay or possession.
 8. The protection of the Court can be granted or extended to the person who has valid
subsisting rent agreement, lease agreement or licence agreement in his favour.

Shehammal v. Hasan Khani Rawther (SC) : Law Finder Doc Id # 266019

2011(9) SCC 223

NUTSHELL

A Mohammedan expecting to inherit property on death of his father - He can selinquish his right in
future property by means of family arrangement or after receiving consideration.

A. Principles of Mohammedan Law, Paragraph 54 - Transfer of Property Act, 1882, Section 6 - A

Mohammedan expecting to inherit property on death of his father - He can relinquish his right in
property which he had stile not required by means of family arrangement or on receipt of
consideration.

ON FACTS :-

Mohammedan Law - A Mohammedan expecting to inherit property on death of his father - Under
Mohammedan Law, a chance of a Mohammedan heir-apparent succeeding to an estate cannot be the
subject of a valid transfer or release - However, an expectant heir can relinquish the future property
after receiving consideration or by means of family arrangement - A Mohammedan by means of a
Family Settlement relinquish his right of spes successionis when he had still not acquired a right in
the property . AIR 1973 SC 554, relied, (1827)4 SDA 210, Distinguished.

[Paras 12. 16, 17, 19, 23 and 24]

B. Family arrangement An owner of property getting relinquishment deeds executed separately from
his family members - It is not a family arrangement - A family arrangement would necessarily mean
a decision arrived at jointly by the members of a family and not between two individuals belonging
to the family.

[Para 25]

C. Transfer of Property Act, 1882, Section 6 - Transfer of right of spes successionis - Under Section 6
of T.P. Act and paragraph 54 of Principles of Mohammedan Law the chance of a Mohammedan heir-
apparent succeeding to an estate cannot be said to be the subject of a valid transfer or release -
However, fetters imposed under the aforesaid provisions are capable of being removed in certain
situations - The examples in this regard are :-

(i) When an expectant heir willfully does something which has the effect of attracting
the provisions of Section 115 of the Evidence Act, is he estopped from claiming the
benefit of the doctrine of spes successionis, as provided for under Section 6(a) of the
Transfer of Property Act, 1882, and also under the Mohammedan Law as embodied in
paragraph 54 of Mulla's "Principles of Mohammedan Law" ?
(ii) When a Mohammedan becomes a party to a family arrangement, it also entails
that he gives up his right of spes successionis.
[Paras 17 and 18]

D. Principles of Mohammedan Law, Paragraph 54 - Transfer of Property Act, 1882, Section 6 -

Renunciation - Meaning of - "Renunciation implies the yielding up of a right already vested."

[Para 20]

E. Principles of Mohammedan Law, Section 54 - Transfer of Property Act, 1882, Section 6 -

Ordinarily there cannot be a transfer of spes successionis, but in the exceptions pointed out by this
Court in Gulam Abbas's case, AIR 1973 SC 554, the same can be avoided either by the execution of
a family settlement or by accepting consideration for a future share - It could then operate as
estoppel against the expectant heir to claim any share in the estate of the deceased on account of
the doctrine of spes successionis.

[Para 24]

F. Principles of Mohammedan Law, Paragraph 54 - Transfer of Property Act, 1882, Section 6 - Family
settlement - A Mohammedan expecting to get a share in property on death of his father - Such a
Mohammedan can relinquish his future share by means of family settlement - Held :-

Mohammedan may also make a disposition of his entire property if all the heirs signified their
consent to the same.
[Paras 16, 23 and 24]

G. Principles of Mohammedan Law, Paragraph 54 - Transfer of Property Act, 1882, Section 6 -

Mohammedan Law - Spes successionis - A Mohammedan expecting to inherit property on death of
his father - The said Mohammedan relinquishing property after receiving consideration -
Relinquishment would be considered valid - A Deed of relinquishment executed by an expectant heir
could operate as estoppel to a claim that may be set up by the Executor of such Deed after
inheritance opens on the death of the owner of the property . AIR 1973 SC 554, relied.

[Paras 16, 24 and 25]

H. Principles of Mohammedan Law, Paragraph 54 - Execution of will by a Mohammedan - A

Mohammedan cannot by Will dispose of more than a third of his estate - However a Mohammedan
may also make a disposition of his entire property if all the heirs signified their consent to the same.

[Para 24]

Ramakrishna Mutt v. M. Maheswaran (SC) : Law Finder Doc Id # 219568

2010(4) R.C.R.(Civil) 791

NUTSHELL

A Hindu wife given property by her husband in lieu of maintenance - On coming into force Section
14(1) of Hindu Marriage Act, She will become full owner whether she was in constructive or physical
possession of property.

A. Hindu Succession Act, 1956, Section 14(1) - Property possessed by Hindu Female - Absolute
ownership - Hindu male having two wives - He executed settlement deeds during his lifetime
creating a life interest of his property in favour of second wife - Possession also given to second wife
in lieu of maintenance - Settlement deed provided that after the demise of second wife, property
would go in favour of Sri Ramakrishna Mutt - Wife remained in possession of properties on
17.6.1956, the date on which Hindu Succession Act, 1956 came into force - Held, wife's right of life
interest has ripened into full ownership by virtue of Section 14(1) of Hindu Succession Act - On
death of second wife the property will not go the Mutt - Claim of children of Hindu male from first
wife that property would not go back to Mutt in view of Section 14(1) accepted - 1977 (3) SCC 99
relied upon.

[Paras 10 to 13]

B. Hindu Succession Act, 1956, Section 14(1) - Property possessed by a female Hindu - Absolute
Ownership - Hindu male executed settlement deeds during his lifetime creating a life interest in
favour of his wife in lieu of maintenance - Wife remained in possession of properties on 17.06.1956,
the date on which Hindu Succession Act, 1956 came into force - Held, wife's right of life interest has
ripened into full ownership of virtue of Section 14(1) - Plea that wife was not in actual possession of
property not tenable as possession for applicability of Section 14(1) may be either actual or
constructive - AIR 1959 SC 577 relied upon.

[Para 12]

Bharatha Matha v. R. Vijaya Renganathan (SC) 2010 AIR (SC) 2685

NUTSHELL

A woman living with a man for long while her husband was alive - No presumption of marriage will
arise despite long live-in-relationship - Children born to woman would be illegitimate children and
not entitled to inherit ancestral property in the hands of the man.

A. Hindu Marriage Act, 1955, Sections 16 and 5(1) - Live-in-Relationship - Presumption - Woman
living with a man for long term and begetting two children - Husband of the woman was alive -
Woman cannot claim the benefit of presumption of marriage for having live-in-relationship - On
death of the man, the woman and children cannot claim any right in the ancestral property of the
man - Sister of the said man entitled to claim ancestral property left by her brother.

ON FACTS :

Hindu male died intestate - He had live-in-relationship with another woman who had a living
husband - Two children were born from this relationship - Sister of deceased instituted suit claiming
her brothers share in ancestral on the ground that husband then woman was alive and there had
been no legal separation between them, hence question of marriage by presumption does not arise -
Sister of deceased further contended that two children born from that woman were illegitimate and
not entitled to any share in joint family property - Plea accepted - Held, presumption of marriage for
having live-in- relationship with deceased does not arise when husband of woman was alive -
Further held, question of inheritance of coparcenery property by the illegitimate children born out of
live-in-relationship does not arise in absence of evidence to show that joint family properties of
deceased were partitioned or were his self acquired properties .

[Paras 15, 17, 18 and 28]

B. Hindu Marriage Act, 1955, Section 16 - Ancestral Copercenary Property - Right of illegitimate
child. - A child born of void or voidable marriage is not entitled to claim inheritance in ancestral
coparcenary property - He is entitled to claim share only in self acquired properties of his father.

[Para 27]

C. Evidence Act, 1872, Section 112 - Presumption of legitimacy of child - Section 112 provides for a
presumptions of a child being legitimate such a presumption can only be disputed by a strong
preponderance of evidence and not merely by a balance of probabilities as the law has to live in
favour of innocent child from being bastardised - Proof of non access between the parties to
marriage during the relevant period is the only way to rebut that presumption. - AIR 1929 PC 135
and AIR 1954 SC 176 relied on.

[Para 16]

Narinderjit Singh v. North Star Estate Promoters Limited (SC) : Law Finder Doc Id # 357831

2012(3) Recent Apex Judgments (R.A.J.) 84 : 2012(3) R.C.R.(Civil) 168

NUTSHELL

Agreement for sale of land - After agreement there was escalation in the price of land - This by itself
is no ground for denying relief of specific performance.

A. Specific Relief Act, 1963, Section 20 - Agreement for sale of land - After agreement there was
escalation in the price of land - This by itself is no ground for denying relief of specific performance -
In the instant case seller had neither pleaded hardship nor produced and evidence to show that it
will be inequitable to order specific performance of the agreement.

[Paras 20 and 21]

B. Specific Relief Act, 1963, Sections 16 and 20 - Agreement for sale of land - Suit for specific
performance - Continued readiness and willingness to perform the contract not pleaded by plaintiff -
Relief of specific performance cannot be denied - His conduct and circumstances showed that he was
always ready and willing to perform his part of contract .

ON FACTS :-

Readiness and willingness - Agreement for sale of land - Seller not executing the sale deed - Suit for
specific performance - Purchaser did not plead about his continued readiness and willingness to
perform its part of contract - Suit for specific performance could not be dismissed on this ground -
Lower Courts decreed the suit holding that conduct of showed that he purchaser was always ready
and willing to perform his part of contract - Held :-

(i) "Readiness and willingness cannot be treated as a straitjacket formula and the issue has to be
decided keeping in view the facts and circumstances relevant to the intention and conduct of the
party concerned".

(ii) The factum of readiness and willingness of purchaser to perform his part of the contract is to be
adjudged with reference to the conduct of the party and the attending circumstances. 1995(2) RCR
(Rent) 647 : 1995(3) RRR 190 : 1970(3) SCC 140, relied.

[Paras 17, 18 and 19]

Sri Marcel Martins v. M. Printer (SC) : Law Finder Doc Id # 354579

2012(2) R.C.R.(Civil) 922 : 2012(2) Recent Apex Judgments (R.A.J.) 578 : 2012(3) CTC 416

NUTSHELL

Benami property - Property purchased by 5 family members in the name of one member by making
contributions - The member in whose name property was purchased does not become Benami owner
- He was holding the property in fiduciary relationship.
A. Benami Trasactions (Prohibition) Act, 1988, Section 4(3)(b) - Transfer of Property Act, 1882,
Section 45 - Benami property - Property purchased by 5 family members in the name of one
member by making contributions - The member in whose name property was purchased does not
become Benami owner - He was holding the property in fiduciary relationship.

ON FACTS

House owned by Corporation and under tenancy with one 'M' - Death of tenant (M) leaving behind
her husband, one son and four daughters (legal heirs) - Corporation desired that tenancy rights
should be in the name of one legal heir - Accordingly all the legal heirs consented to transfer the
tenancy rights in favour of son - Later on Corporation decided to sell the house to occupant - House
purchased in the name of son but consideration amount paid by all legal heirs by making
contributions - Son claiming that he was Benami owner - Contention repelled - Son was holding the
property in fiduciary capacity - Transaction is completely saved from the mischief by Section 4(3)(b)
- Meaning of expression fiduciary capacity explained.

[Paras 22, 23, 24, 25, 26 and 8]

B. Benami Transactions (Prohibition) Act, 1988, Sections 4(3)(b) - Section 4(3)(b) saved a
transaction where the property is held by a person who stands in a fiduciary capacity for the benefit
of person whom he stands in fiduciary capacity - Meaning of expression fiduciary capacity explained.

[Paras 13, 14, 23 and 24]

C. Benami Transactions (Prohibition) Act, 1988, Section 4 - Provisions and Scope of Section 4
explained.

[Paras 13, 14 and 23]

D. Benami Transactions (Prohibition) Act, 1988, Section 4(3)(a) and (b) - Fiduciary Capacity -
Property held in fiduciary capacity - In determining whether a relationship is based on trust or
confidence, relevant to determining whether they stand in a fiduciary capacity, the Court shall have
to take into consideration the factual context in which the question arises for it is only in the factual
backdrop that the existence or otherwise of a fiduciary relationship can be deduced in a given case.

[Paras 23 and 24]

E. Benami Transactions (Prohibition) Act, 1988, Section 4(3)(a) and (b) - Fiduciary Capacity -
Meaning of the expression "fiduciary capacity" may not be capable of a precise definition, it implies a
relationship that is analogous to the relationship between a trustee and the beneficiaries of the trust
- The expression is in fact wider in its import for it extends to all such situations as place the parties
in positions that are founded on confidence and trust on the one part and good faith on the other.

[Paras 22 and 23]

Kanwar Singh Saini v. High Court of Delhi (SC) : Law Finder Doc Id # 270890

2011(4) R.C.R.(Civil) 402

NUTSHELL

Decree passed on basis of undertaking given by Defendant - Decree not complied with - Plaintiff has
remedy to file application under Order 39 Rule 32 and not under Order 39 Rule 2-A.

NUTSHELL

For violation of a judgment or decree provisions of the criminal contempt are not attracted.

A. Contempt of Courts Act, 1971, Section 2(b) - Civil Procedure Code, Order 39, Rule 2-A and Order
39 Rule 32 - Decree passed on basis of undertaking given by Defendant - Decree not complied with -
Plaintiff has remedy to file application under Order 39 Rule 32 and not under Order 39 Rule 2-A

ON FACTS :-

Decree passed by Court on basis of admission/undertaking made by Defendant - Disobedience of

decree - Decree holder has to proceed under Order 39 Rule 32 of C.P.C. and not under Order 39
Rule 2-A - Order 39 Rule 2-A will apply where there is violation of interim injunction passed during
the pendency of the suit - Once the suit has been decreed, the court could not entertain the
application under Order 39 Rule 2A CPC as the suit had already been decreed and such an
application is maintainable only during the pendency of the suit in case the interim order passed by
the court or undertaking given by the party is violated - Order initiating criminal proceedings not
valid. 2007(2) RCR (Civil) 731 : 2007(3) Recent Apex Judgment (RAJ) 535, Distinguished.

[Paras 16, 17, 18, 19 and 21]

B. Contempt of Courts Act, 1971, Sections 2(b) and 2(c) - A mere disobedience by a party to civil
action of a specific order made by the court in the suit is civil contempt for the reason that it is for
the sole benefit of the other party to the civil suit - For violation of a judgment or decree provisions
of the criminal contempt are not attracted.

[Paras 17 and 19]

C. Contempt of Courts Act, 1971, Section 2(c) - Filing of a false affidavit or taking false pleading in
the court amounts to criminal contempt. 2000(1) RCR (Crl.) 729, relied.

[Para 18]

D. Civil Procedure Code, Order 39, Rule 2A - Civil Procedure Code, Order 21, Rule 32 - Contempt of
Courts Act, 1971, Section 2(b) - Undertaking given to Court during pendency of suit - Court
disposing of the suit on basis of undertaking - Decree not complied with - Once a suit is decreed, the
interim order, if any, merges into the final order - The proceedings under Order 39 Rule 2-A are
available only during the pendency of the suit and not after conclusion of the trial of the suit.
2009(2) RCR (Civil) 834 : 2009(3) Recent Apex Judgment (RAJ) 159, relied.

[Paras 11 and 12]

E. Civil Procedure Code, Order 39, Rule 2-A - Contempt of Courts Act, 1971, Sections 2(b) and 2(c) -
Distinction between a civil and criminal contempt - Enforcement of the order in civil contempt is for
the benefit of one party against another, while object of criminal contempt is to uphold the majesty
of law and the dignity of the Court.

[Paras 14 and 15]

F. Civil Procedure Code, Order 39, Rules 1 and 2 - Decree of Civil Court - Executing court does not
have the power to go behind the decree - Thus, in absence of any challenge to the decree, no
objection can be raised in execution. AIR 1992 SC 473, relied.

[Para 15]

G. Contempt of Courts Act, 1971, Section 2(c) - Contempt of Court - Proof of - The contempt
proceedings being quasi-criminal in nature, the standard of proof requires in the same manner as in
other criminal cases - The alleged contemnor is entitled to the protection of all safeguards/rights
which are provided in the Criminal Jurisprudence, including the benefit of doubt. AIR 1969 SC 189,
relied.

[Para 25]

H. Maxim "sublato fundamento cadit opus" - It means foundation being removed structure falls is
attracted.

[Para 26]

I. Civil Procedure Code, Order 39, Rules 1 and 2 - Civil Procedure Code, Order 39, Rule 2A -
Violation of order of permanent injunction - Remedy lies in execution and not in an action for
contempt or disobedience or breach under Order 39 Rule 2-A - The contempt jurisdiction cannot be
used for enforcement or decree passed in a civil suit - Remedy under Order 39 Rule 2A is available
only during the pendency of the suit and not after conclusion of the trial of the suit. 2009(2) RCR
(Civil) 834 : 2009(3) Recent Apex Judgment (RAJ) 159, relied.

[Paras 10, 11 and 12]

J. Civil Procedure Code, Order 10, Rule 1 - Civil Procedure Code, Order 14, Rule 1(5) and Order 15,
Rule 1 - First hearing of the suit - Meaning of - Framing of issue - First hearing of suit comes after
the framing of issue - The "first hearing of the suit" can never be earlier than the date fixed for the
preliminary examination of the parties and the settlement of issues - On the date of appearance of
the defendant, the court does not take up the case for hearing or apply its mind to the facts of the
case, and it is only after filing of the written statement and framing of issues, the hearing of the case
commences - Hearing should be first in point of time after the issues have been framed - Further
held :-
 (i) Question of having the "first hearing of the suit" prior to determining the points in
controversy between the parties i.e. framing of issues does not arise.
(ii) The words the "first day of hearing" does not mean the day for the return of the
summons or the returnable date, but the day on which the court applies its mind to
the case which ordinarily would be at the time when either the issues are determined
or evidence is taken. 2004(2) RCR (Civil) 1 : 2003(2) RCR (Rent) 567, relied.
[Para 6]

K. Civil Procedure Code, Order 10, Rule 1 - Civil Procedure Code, Order 15, Rule 1 and Order 14 Rule
1(5) - First hearing of suit - Meaning - Civil Suit - Defendant appearing after service of notice and
filing written statement and issued framed thereafter - First hearing of suit will be the date fixed for
evidence after framing of issues.

[Para 6]

L. Interim Order - Once a suit is decreed, the interim order, if any, merges into the final order - If
the case is ultimately dismissed, the interim order stands nullified automatically. 2006(1) RCR (Crl.)
774 : 2006(1) RCR (Civil) 588 : 2006(1) Apex Criminal 292, relied.

[Para 9]

M. Civil Procedure Code, Order 14, Rule 1(5) Civil Procedure Code, Order 10 Rule 1 - Civil Procedure
Code, Order 15, Rule 1 - First hearing of suit - Suit filed on 26.4.2003 - Notice issued to defendant -
In response to notice defendant appeared 29.4.2003 in person and filed written statement - Court
cannot record his statement on the date of filing written statement and dispose of the suit on basis
of said statement.

[Paras 7 and 8]

N. Contempt of Courts Act, 1971, Section 2(b) - Civil Procedure Code, Order 39, Rule 2-A - Civil
Procedure Code, Order 21 Rule 32 - Decree of court - Infrigment of decree - it is not expedient to
invoke and exercise contempt jurisdiction as a mode of executing the decree because other
remedies may take time or are more circumlocutory in character.

[Para 10]

O. Contempt Courts Act, 1971, Section 2(b) - A mere disobedience by a party to a civil action of a
specific order made by the court in the suit is civil contempt for the reason that it is for the sole
benefit of the other party to the civil suit.

[Para 17]

Vinod Seth v. Devinder Bajaj (SC) 2010(8) SCC 1 NUTSHELL

Suit for specific performance - High Court found that there were remote chances of success - High
Court directed the plaintiff to file an undertaking to pay Rs. 25 lakhs as damages in

A. Transfer of Property Act, Section 52 - Civil Procedure Code, Order 25 Rule 1 - Specific Relief Act,
Sections 38 and 39 - Suit for specific performance - High Court found that there were remote
chances of success - High court directed the plaintiff to file an undertaking to pay Rs. 25 lakhs as
damages in event of losing the case - Order illegal and set aside.

ON FACTS :-

Suit for specific performance - High Court found that there were remote chances of success of
Plaintiff, but due to pendency of suit for specific performance no person would deal with property -
In order to safeguard interest of defendant, High Court passed an interim order and directed the
defendant to file an undertaking to pay damages of Rs. 25 lakhs in the event of being unsuccessful -
Order of High Court with regard to payment of damages set aside - Held :-

1. Neither CPC, nor T.P. Act nor Specific Relief Act, gives power to such an interim order - Court
cannot pass such an order inexercise of inherent power under Section 151 CPC.

2. Such orders are likely to be branded as judicial highhandedness, or worse, judicial vigilantism.

3. This is certainly a hard case - The High Court should have resisted from laying down a `bad law',
which will be treated as a precedent and will result in similar directions by Courts.

[Paras 12, 13 and 14]

B. Civil Procedure Code, Section 151 - Exercise of inherent power by Court under Section 151 -
Scope and object of Section 151 CPC explained - Held :-

Section 151 is intended to apply where the Code does not cover any particular procedural aspect,
and interests of justice require the exercise of power to cover a particular situation - Section 151 is
not a provision of law conferring power to grant any kind of substantive relief - It is a procedural
provision saving the inherent power of the court to make such orders as may be necessary for the
ends of justice and to prevent abuse of the process of the court - It cannot be invoked with
reference to a matter which is covered by a specific provision in the Code. AIR 1961 SC 218 relied.

C. Transfer of Property Act, Section 52 - Doctrine of lis pendens - Suit for specific performance
against owner of property - Owner of property selling the property during pendency of suit -
Transaction is not void, but renders the transfer inoperative in so far as other parties to the suit -
Further held :-

1. Transfer of any right, title or interest in the suit property or the consequential acquisition of any
right, title or interest, during the pendency of the suit will be subject to the decision in the suit.

2. The Court in which the suit is pending, has the power, in appropriate cases, to permit a party to
transfer the property which is the subject-matter of the suit without being subjected to the rights of
any part to the suit, by imposing such terms as it deems fit.

D. Civil Procedure Code, Sections 35A and 35B - Compensating cost for making false or vexatious
claims - Under Section 35A award of compensatory costs in false and vexatious litigation, is subject
to a ceiling of Rs. 3,000/- - Due to inflation, this has because virtually infructuous and requires a
realistic revision - Section 35B providing for costs for causing delay is seldom invoked - It should be
regularly employed, to reduce delay - Further held:-

The lack of appropriate provisions relating to costs has resulted in a steady increase in malicious,
vexatious, false, frivolous and speculative suits, apart from rendering Section 89 of the Code
ineffective.2005 (3) RCR (Civil) 530 relied.

E. Civil Procedure Code, Section 95 - Damages - Suit filed by Plaintiff - An aggrieved defendant can
sue the plaintiff for damages, if the suit is found to be based on a forged or false document, or if the
suit was vexatious or frivolous.

F. Civil Procedure Code, Order 26 Rule 10 - Expeditious disposal of suit - The court can secure the
evidence (examination-in-chief) of witnesses by way of affidavits and where necessary, appoint a
commissioner for recording the cross examination so that it can dispose of the suit expeditiously.

[Para 10]

G. Civil Procedure Code, Section 95 - Civil Procedure Code, Sections 35A and 35 - Compensation for
filing suit without sufficient or false grounds - Held :-

1. If a suit is field without sufficient grounds and in such a suit the plaintiff obtains an interim order
of arrest, attachment or temporary injunction, the court can grant compensation up to Rs. 50,000 on
application by the defendant - However if no interim order (of arrest, attachment of injunction) is
obtained by the plaintiff, the court cannot grant any compensation to defendant.

2. If the defendant wants any compensation (other than costs and exemplary costs under Section 35
and 35A of the Code), he has to file a separate suit.

[Para 11.1]

H. Civil Procedure Code, Sections 35 and 35A - Abuse of process of court - A suit or proceeding
initiated in accordance with law, cannot be considered as an abuse of the process of court, only on
the ground that such suit or proceeding is likely to cause hardship or is likely to be rejected
ultimately - As there are specific provisions in the Code, relating to costs, security for costs and
damages, the court cannot invoke Section 151 on the ground that the same is necessary for ends of
justice.

I. Hard cases make bad law - Meaning of hard cases explained.

Oriental Aroma Chemical Industries Ltd. v. Gujarat Industrial Development Corporation (SC) :

2010(2) R.C.R.(Civil) 284

NUTSHELL
Condonation of delay caused by State - Same yardstick be applied as applicable to private
individuals - However, certain amount of latitude is not impermissible in case of State because the
State represents collective cause of the community and the decisions are taken by the
officers/agencies at a slow pace.

A. Limitation Act, Section 5 - Condonation of delay where delay is caused by State or its
instrumentalities - For condonation of delay same yardstick should be applied for deciding the
applications for condonation of delay filed by private individuals and the State - However, certain
amount of latitude is not impermissible in the latter case because the State represents collective
cause of the community and the decisions are taken by the officers/agencies at a slow pace and
encumbered process of pushing the files from table to table consumes considerable time causing
delay.

[Para 8]

B. Limitation Act, Section 5 - Condonation of 4 years delay in filing appeal not allowed - Decree
against a State corporation - Appeal filed after delay of more than 4 years - Application for
condonation of delay rejected on ground :-

(1) Corporation falsely stated that order did not come for 4 years.
(2) Corporation went on the extent of suggesting that concerned parties may have
joined with some employees of corporation to cause delay in filing the appeal - Thus
Corporation did not come to Court with clean hands.
[Para 4]

C. Limitation Act, Section 5 - Object of law of limitation - The law of limitation is founded on public
policy - Further held :

(1) Law of limitation prescribes a period within which legal remedy can be availed for
redress of the legal injury - At the same time , the Courts are bestowed with the
power to condone the delay, if sufficient cause is shown for not availing the remedy
within the stipulated time .
(2) Although, no hard and fast rule can be laid down in dealing with the applications
for condonation of delay, this Court has justifiably advocated adoption of a liberal
approach in condoning the delay of short duration and a stricter approach where the
delay is inordinate.
(3) Condonation of delay where delay is caused by State and its instrumentalities - For
condonation of delay same yardstick should be applied for deciding the applications for
condonation of delay filed by private individuals and the State - However, certain
amount of latitude is not impermissible in the latter case because the State represents
collective cause of the community and the decisions are taken by the officers/agencies
at a slow pace and encumbered process of pushing the files from table to table
consumes considerable time causing delay. 2001(3) RCR(Civil) 831 : 2005(2)
RCR(Criminal) 414 : 2005(2) RCR(Civil) 375 : 2005(2) Apex Criminal 75 and 2008(4)
RCR(Criminal) 119 : 2008(4) RCR(Civil) 126 : 2008(4) SCT 25 : 2008(2) RCR(Rent)
234 : 2008(5) RAJ 214. relied.
[Para 8]
Hafeeza Bibi v. Shaikh Farid (SC) 2011 AIR SC (Civil) 1339
NUTSHELL

Gift of immoral property by a Mahomedon - Oral gift is valid - If gift is reduced in writing the
document does not require registration.

A. Transfer of Property Act, 1882, Sections 129, 123 - Principles of Mahomedan Law by Mulla, 19th
Edn., Section 147 - A Mahomedan making oral gift of immoral property - Oral gift is valid provided if
it satisfied the following essentials :-

(1) Declaration of the gift by the donor; (2) acceptance of the gift by the donee and
(3) delivery possession.
[Paras 27, 29, 30 & 31]

B. Principles of Mahomedan Law by Mulla, 19th Edn., Section 147 - Transfer of Property Act, 1882,
Sections 129 and 123 - Registration Act, 1908, Sections 17 and 49 - A Mahomdan making oral gift of
immoral property - Oral gift is valid - If the gift is reduced in writing, the document does not require
registration. AIR 1962 Andhra Pradesh 199, overruled, AIR 1975 Andhra Pradesh 271 : AIR 1984
Gauhati 41, Approved.

[Paras 27, 29 and 30]

Ruchi Majoo v. Sanjeev Majoo (SC) 2011 AIR SC (Civil) 1570

NUTSHELL
Judgment of foreign Court with regard to custody of child whether enforceable in India.

A. Guardian and Wards Act, 1890, Section 9 - Judgment of foreign Court with regard to custody of
child whether enforceable in India

ON FACTS :-

Husband and Wife American citizens of India origin - A child born to them in America - Wife came to
India alongwith child and filed petition claiming custody of child - Interim custody granted to mother
- Husband filing petition in US Court, which granted custody of child to father - Whether Judgment of
US Court, could be enforced in India on the principle of Comity of courts - Held :-

(i) Principle of Comity of Courts ensures that foreign Judgments and orders are
unconditionally conclusive of the matters in controversy, but in the matter of custody
of child interest and welfare of the minor being paramount, a competent court in this
country is entitled and indeed duty bound to examine the matter independently,
taking the foreign judgment, if any, only as an input for its final adjudication.
(ii) In the facts of instant repatriation of child to America could not be allowed on
principle of comity of Courts - Interest of the minor shall be better served if he
continued in the custody of his mother especially when father contracted a second
marriage. 2000(2) RCR(Crl.) 194 : 2000(2) RCR(Civil) 367 : 2009(4) RCR (Civil)961 :
2009(6) RAJ 380, relied.
[Paras 31,37, 40, 43 and 45]

B. Guardian and Wards Act, 1890, Section 9 - Dispute over - Custody of minor child - Court where
the minor ordinarily resided had the jurisdiction to entertain the petition - Whether the minor is
ordinarily residing at a given place is primarily a question of intention which in turn is a question of
fact - If may at best be a mixed question of law and fact - Meaning of expression "ordinarily
resident" explained - The question whether one is ordinarily residing at a given place depends so
much on the intention to make that place ones ordinary abode.

[Paras 14 and 19]

C. Guardian and Wards Act, 1890, Sections 9 and 12 - Husband and wife of Indian Origin - Living in
America and acquired American citizenship - A child born to them in America - Wife came to India
and started living in Delhi with her parents - Child was admitted in a school at Delhi - Wife filing
petition under Section 9 of Guardians and Wards Act claiming custody of child - Delhi Court granted
interim custody - Objection that Delhi Court had no jurisdiction not tenable - The child and mother
had been living in India for more than three years - Child would be taken an ordinarily resident of
Delhi within meaning of Section 9 of Guardians and Wards Act.

[Paras 21, 29, 30, 38, 40 and 42]

D. Guardian and Wards Act, 1890, Section 9 - Dispute over custody of child - Child remained
exclusively in custody of mother for 3/4 years and developed deep rooted disliking for father -
Father contracting second marriage - Interim custody given to mother with visitation rights to father
which is important for healthy growth of child at this formative and impressionable stage - Broad
parameters of exercise of visitation rights stated.

[Para 47 to 50]

E. Guardian and Wards Act, 1890, Section 9 - Constitution of India, Article 226 - Corpus petition
claiming custody of child - Held :-

Proceedings in the nature of Habeas Corpus are summary in nature, where the legality of the
detention of the alleged detenu is examined on the basis of affidavits placed by the parties - Even
so, nothing prevents the High Court from embarking upon a detailed enquiry in cases where the
welfare of a minor is in question, which is the paramount consideration for the Court while exercising
its parens patriae jurisdiction - A High Court may, therefore, invoke its extra ordinary jurisdiction to
determine the validity of the detention, in cases that fall within its jurisdiction and may also issue
orders as to custody of the minor depending upon how the court views the rival claims, if any, to
such custody - The Court may also direct repatriation of the minor child for the country from where
he/she may have been removed by a parent or other person. 2000(2) RCR (Crl.) 194 : 2000(2)
RCR(Civil) 367 : 2009(4) RCR(Civil)961 : 2009(6) RAJ 380, relied.

[Para 37]

In Bakshi Dev Raj v. Sudhir Kumar (SC) 2011() AIR (SC) 3137
NUTSHELL

Counsel is not debarred from making any statement on behalf of party but it is always desirable to
get instructions in writing.
NUTSHELL

Judgment on admission - In terms of Order 23 Rule 3 of C.P.C., agreement or compromise is to be

in writing and signed by the parties.

A. Civil Procedure Code, Order 3, Rule 4 - Civil Procedure Code, Order 23 Rule 3 - Counsel is not
debarred from making any statement on behalf of party but it is always desirable to get instructions
in writing.

ON FACTS :-

Counsel giving concession on behalf of his party - Decree passed causing money loss to the party -
Contention of party that statement by his counsel was not based on any instructions, but there was
no material to substantiate the same - Counsel is not debarred from making any statement on
behalf of the parties but it is always desirable to get instructions in writing.

[Para 15]

B. Civil Procedure Code, Order 23, Rule 3 - Compromise of suit - Judgment on admission - A
judgment or decree passed as a result of consensus arrived at before Court, cannot always be said
to be one passed on compromise or settlement and adjustment - It may, at times , be also a
judgment on admission. 2003(4) RCR (Civil) 606 : 1997(2) RCR (Civil) 50, relied.

[Para 13]

C. Civil Procedure Code, Order 3, Rule 4 - Counsel who was duly authorised by a party to appear by
executing Vakalatnama and in terms of Order 3 Rule 4, empowers the counsel to continue on record
until the proceedings in the suit are duly terminated - The counsel, therefore, has power to make a
statement on instructions from the party to withdraw the appeal.

[Para 15]

D. Civil Procedure Code, Order 23, Rule 3 - Judgment on admission - In terms of Order 23 Rule 3 of
C.P.C., agreement or compromise is to be in writing and signed by the parties.

[Para 12]

E. Civil Procedure Code, Order 23, Rule 3 - Compromise of suit - Parties entering into compromise
during suit or appeal - Compromise should be should be reduced in writing in the form of an
instrument and signed by the parties - Court must insist upon the parties to reduce the terms into
writing. 1988(1) SCC 270, relied.

[Para 9]

F. Constitution of India, Article 136 - Civil Procedure Code, Order 47, Rule 1 - Review petition -
Order passed by High Court in second appeal - SLP against the order of High Court preferred before
Supreme Court - SLP, however, dismissed as withdrawn on request of counsel - There was no
permission or reservation or liberty for taking further action - Dismissal of SLP is not a bar for filing
review before the same Court. 2000(3) RCR (Civil) 671, relied.

[Para 16]

G. Civil Procedure Code, Order 3, Rules 1 and 4 - Civil Procedure Code, Order 47 Rule 1 - Review
Petition - Order passed by High Court in second appeal - SLP against the to order dismissed by
Supreme Court as withdrawn without leave of Court - Even after dismissal of SLP parties are entitled
to move the High Court to review its order which the High Court had passed earlier. 1987(1) SCC 5,
relied.

[Paras 16, 17, 18 and 19]

H. Civil Procedure Code, Order 9, Rules 1 and 2 - Constitution of India, Articless 226, 227 and 32 -
Civil Procedure Code, Order 23, Rule 1 - Dismissal in default - Filing of fresh petition - Petitioner
filing a writ petition in High Court under Articles 226 and 227 - Petitioner withdrawing the petition
without permission to institute fresh petition - It is not open to petitioner to file a fresh petition in
the High Court under the same article though other remedies like suit or writ petition before
Supreme Court under Article 32 would remain open to him - Principles underlying Order 23 Rule 1
should be extended to cases of withdrawal of writ petition also. 1987(1) SCC 5, relied.

[Para 18]

Mrs. Birinder Khullar v. Maninder Singh (P&H) 2011(2) CivCC 438

NUTSHELL

Eviction sought on ground of arrears of rent - Rent Controller fixed provisional rent and specified a
date for payment - Non payment of Rent - Eviction Order has to follow - Rent Controller has no
jurisdiction to extend time.

East Punjab Urban Rent Restriction Act, 1949, Section 13(2)(i) - Suit for eviction of tenant on
ground of arrears of rent - Rent Controller assessing provisional rent and directing the tenant to
deposit the same within a specified date - Tenant failed to deposit - The order of ejectment has to
follow - Controller has no jurisdiction to extend time - Further :-

(i) Even if tenant filed a revision against the provisional rent and revision was
dismissed the time initially fixed by Rent Controller cannot be extended by Rent
Controller. 2009(1) RCR (Rent) 514 : 2010(1) RCR (Rent) 386, relied.
[Paras 16 to 19]

Smt. Bachan Kaur v. Kabal Singh (P&H)(D.B.) 2011(1) R.C.R.(Rent) 368

NUTSHELL

A co-owner who is Non Resident Indian, even when other co-owners are not Non Resident Indians
can maintain petition for ejectment for benefit of all co-owners.

NUTSHELL

A co-owner NRI can seek eviction of the tenant in building through the tenant was not inducted by
such NRI and that it is not necessary that all other co-owners should be Non Resident Indiands.

A. East Punjab Urban Rent Restrictions Act, 1949 (as amended by Punjab Act No. 9 of 2001),
Section 13-B - A co-owner is owner of each part of the properties in husband like manner with other
co-owner and entitled to seek ejectment of tenant for benefit of all other co-owners subject to one
exception that non of remaining co-owners objects to such action of petitioning co-owners.

[Paras 10 and 19]

B. East Punjab Urban Rent Restrictions Act, 1949 (as amended by Punjab Act No. 9 of 2001, Section
13-B - A co-owner who is Non Resident Indian, even when other co-owners are not Non Resident
Indians can maintain petition for ejectment for benefit of all co-owners but other NRI co-owners will
not be entitled to ejectment from another building either owned solely by such co- owners or jointly
with other persons as co-owners in exercising of right of eviction granted to NRIs under Section 13-B
of the Punjab Act.

[Para 11]

C. East Punjab Urban Rent Restrictions Act, 1949 (as amended by Punjab Act No. 9 of 2001),
Section 13-B - NRI landlord, who has not let out the premises can maintain petition for ejectment
after a period of 5 years from the date of becoming of owner of such a building.

[Para 18]

D. East Punjab Urban Rent Restriction Act, 1949 (as amended by Punjab Act No. 9 of 2001), Section
13-B - Ownership of the building is necessary condition for maintaining eviction petition under
Section 13-B and letting out by the petitioner is not a Sign-Qua-Non - One can acquire ownership
right by virtue of a purchase or by inheritance - Apex Court Judgment in Nathi Devis case not
application to case arising out of Punjab Act.

[Para 18]

E. East Punjab Urban Rent Restrictions Act, 1949 as amended by Punjab Act No. 9 of 2001, Section
13-B - A co-owner NRI can seek eviction of the tenant in building thought the tenant was not
inducted by such NRI and that it is not necessary that all other co-owners should be Non Resident
Indians.

Mohd. Saud v. Dr.(Maj.) Shaikh Mahfooz (SC) 2011 AIR SC (Civil) 169
NUTSHELL

Order passed by Single Judge in an appeal against the interim order of Distt. Judge - LPA against the
order of Single Judge not maintainable.
A. Civil Procedure Code, Order 43, Rule 1 - Civil Procedure Code, Section 100-A - Appeal before
Single Judge against an interlocutory of Additional District Judge - Order passed by Single Judge -
LPA against the order is not maintainable - Scope of Section 100-A CPC explained - Held :-

There is contraction in Section 100-A which is due to bad drafting, but not much can be made out
when Courts understands the purpose of Section 100-A.

[Paras 16 to 22]

B. Civil Procedure Code, Section 100-A (as amended with effect from 1.7.2002) - LPA against the
order of Single Judge not maintainable - Scope of amended Section 100-A as interpreted by Full
Bench of Kerala High Court approved which in as under :-

(i) After the introduction of Section 100-A with effect from 1.7.2002, no Letters Patent
Appeal shall lie against the judgment or order passed by a learned Single Judge in an
appeal.
(ii) No LPA shall lie against the order or judgment passed by a learned Single Judge
even in an appeal arising out of a proceeding under a Special Act.
[Para 9]

C. Civil Procedure Code, Sections 96, 100 and 100-A - Right of appeal - held :-

(i) An appeal is a creature of a statute and not an inherent right.

(ii) The right of appeal can be taken away or curtailed by a subsequent enactment.
(iii) No litigant can have a substantive right for a further appeal against the judgment
or order of the learned Single Judge of the High Court passed in an appeal. AIR 1957
SC 540 : 2006(7) SCC 613, relied, AIR 2003 AP 458 : AIR 2003 MP 49 : AIR 2004 Ker
111, Approved.
[Paras 10, 11 and 12]

D. Civil Procedure Code, Section 100-A (As amended with effect from 1.7.2002) - LPA filed prior to
coming into force of the Amendment Act would be maintainable. 2007(1) RCR (Civil) 468 : 2007(1)
RAJ 397, relied.

Sadashiv Shyama Sawant v. Anita Anant Sawant (SC) 2010(2) R.C.R.(Civil) 252
NUTSHELL

A person forcibly dispossessing a tenant - Landlord can maintain a suit against trespasser -
Contention that only tenant who was dispossessed can maintain the suit - Contention not tenable -
Landlord retains legal possession.

A. Specific Relief Act, 1963, Section 6 - House in occupation tenant - A person forcibly dispossessing
the tenant - Landlord can file suit against trespasser for possession of house under Section 6 of
Specific Relief Act - Contention that it was tenant who dispossessed could maintain the suit -
Contention not tenable - Held :-

1. A landlord by letting out the property to a tenant does not lose possession as he continues to
retain the legal possession.

2. The dispossession of tenant by a third party is dispossession of the landlord (1910) Vol 7 Indian
cases approved.

Cases Overruled

1. AIR 1934 Madras 558.

2. AIR 1928 Nagpur 313.

[Para 19]

B. Specific Relief Act, Section 6 - Forcible dispossession of a person from property - A person is said
to have been dispossessed when he has been deprived of his possession; such deprivation may be of
actual possession or legal possession - Possession in law follows right to possession - The right to
possession, though distinct from possession, is treated as equivalent to possession itself for certain
purposes.

Rajan alis Raj Kumar v. Rakesh Kumar (P&H) (DB) 2010(1) RentLR 515 : 2010(1) R.C.R.(Rent) 386
: 2010(2) PLR 201

East Punjab Urban Rent Restriction Act, 1949, Section 13(3)(a)(i) - Arrears of Rent - First date of
hearing - Ejectment tenant sought on ground of arrears of rent - Rent Controller assessing the
provisional rent and directing the tenant to pay the rent so assessed - If a tenant does not comply
with the order on the first date of hearing after determination of the provisional rent and other
ancillary expenses by the Court, then eviction has to follow - Ratio of Rakesh Wadhwan case,
2002(1) RCR(Rent) 514, explained. 2006(1) RCR(Rent) 438 (overruled) 2004(2) RCR(Rent) 93
(Approved).

[Paras 11 to 15]

Anita Sood v. Manjit Singh (P&H) 2011(2) R.C.R.(Civil) 741

NUTSHELL

Premises belonged to NRI landlord - Mother entitled to file suit on ground of bonafide requirement of
her son.

A. East Punjab Urban Rent Restriction (Amendment) Act, 1949, Section 13(3)(a)(i) - Two tenants of
same building - Both closely related - There is no bar to file a composite petition qua two tenancies,
more so, when the tenants are closely related.

[Para 15]

B. East Punjab Urban Rent Restriction (Amendment) Act, 2001, Sections 13-B and 2(dd) -
Citizenship Act, 1955, Section 7-A - NRI Landlord but not registered as overseeas citizen of India - It
cannot be contended that in view of the notification of the Ministry of Home Affairs dated 11.4.2005,
a person not registered as an overseas citizen of India under Section 7(a) of the Act, is not entitled
to parity with an NRI - As per this notification a person registered as Overseas Citizen of India under
Section 7-A of the Act shall be entitled to parity with Non-Resident Indians in respect of all facilities
available to them in economic, financial and educational fields except in matters relating to the
acquisition of agricultural or plantation properties . 2005(2) RCR (Civil) 470, relied.

[Para 16]

C. East Punjab Urban Rent Restriction Act, 1949 (Amendment Act 2002), Section 13-B and 2(dd) -
NRI landlord - bonafide requirement - Power of Attorney - Landlord living in Canada - Having a
house in Chandigarh - Landlord dealing with the house through his mother (Power of Attorney) since
1973 - Mother in her capacity as power of Attorney filing suit for ejectment of tenant for bonafide
requirement of her son (Landlord) - Suit maintainable - Held :-

Mother as power of attorney holder, was having such a relation that it cannot be said that she would
not be knowing about the personal needs of the respondent and would not be well equipped with the
facts while filing the present petition or deposing pursuant thereto. 2005(2) RCR (Civil) 470, relied.

In S. Kaladevi v. V.R. Somsasundaram (SC) 2010 AIR (SC) 1654

NUTSHELL

Unregistered sale deed of immovable property is admissible as evidence to prove agreement to sell
in a suit for specific performance.

Registration Act, 1908, Sections 49 and 17 - Specific Relief Act, 1963, Sections 38 and 39 -
Unregistered sale deed - When admissible in evidence - Oral agreement between Vendor and Vendee
to sell property - Full consideration paid by Vendor to Vendee - Vendor executing a sale deed in
favour of Vendee, but later on refusing to get the same registered - Suit for specific performance of
agreement by Vendee - Unregistered sale deed tendered by Vendee in evidence - Held :

When an unregistered sale deed is tendered in evidence, not as evidence of a completed sale, but as
proof of an oral agreement of sale, the unregistered sale deed can be received in evidence making
an endorsement that it is received only as evidence of an oral agreement of sale under the proviso
to Section 49 of the Act.

The short question is one of admissibility of an unregistered sale deed in a suit for specific
performance of the contract.

Recently in the case of K.B. Saha and Sons Private Limited v. Development Consultant
Limited,2008(3) RCR(Civil) 327 : 2008(1) R.C.R.(Rent) 660 : 2008(4) R.A.J. 1 : (2008) 8 SCC 564
this Court noticed the following statement of Mulla in his Indian Registration Act, 7th Edition, at page
189 :-

"......The High Courts of Calcutta, Bombay, Allahabad, Madras, Patna, Lahore, Assam,
Nagpur, Pepsu, Rajasthan, Orissa, Rangoon and Jammu & Kashmir; the former Chief
Court of Oudh; the Judicial Commissioner's Court at Peshawar, Ajmer and Himachal
Pradesh and the Supreme Court have held that a document which requires registration
under Section 17 and which is not admissible for want of registration to prove a gift or
 mortgage or sale or lease is nevertheless admissible to prove the character of the
possession of the person who holds under it......"

This Court then culled out the following principles:-

"1. A document required to be registered, if unregistered is not admissible into

evidence under Section 49 of the Registration Act.
2. Such unregistered document can however be used as an evidence of collateral
purpose as provided in the proviso to Section 49 of the Registration Act.
3. A collateral transaction must be independent of, or divisible from, the transaction to
effect which the law required registration.
4. A collateral transaction must be a transaction not itself required to be effected by a
registered document, that is, a transaction creating, etc. any right, title or interest in
immovable property of the value of one hundred rupees and upwards.
5. If a document is inadmissible in evidence for want of registration, none of its terms
can be admitted in evidence and that to use a document for the purpose of proving an
important clause would not be using it as a collateral purpose."
To the aforesaid principles, one more principle may be added, namely, that a
document required to be registered, if unregistered, can be admitted in evidence as
evidence of a contract in a suit for specific performance.

13. In Kalavakurti Venkata Subbaiah v. Bala Gurappagari Guruvi Reddy, 1999(3) RCR(Civil) 607 :
(1999) 7 SCC 114 the question presented before this Court was whether a decree to enforce the
registration of sale deed could be granted. That was a case where respondent therein filed a suit for
specific performance seeking a direction to register the sale deed. The contention of the appellant,
however, was that decree for specific performance based on unregistered sale deed could not be
granted.

In Rehmani v. Bhoorji (P&H) : Law Finder Doc Id # 211823

2010(3) R.C.R.(Civil) 745

Transfer of Property Act, 1882, Sections 60, 92 and 93 - Civil Procedure Code, Order 17 Rule 3 -
Civil Procedure Code, Section 11 - Mortgage of Land - Res judicata - Suit for redemption of land by
the plaintiff - Previous suit filed by plaintiff for redemption was dismissed under Order 17 Rule 3 of
CPC - Second suit for redemption whether barred by res judicata - (No) - Held :-

1. In the previous suit right of redemption was not extinguished by passing a specific order.

2. In the absence of extinguishment of right of redemption, second suit for redemption is not barred,
and not hit by principles of res judicata. AIR 1934 Privy Council 205, AIR (37) 1950 Federal Court 1,
(1988) 3 SCC 298, (2003) 3 SCC 814 relied.

Hitesh Bhatnagar v. Deepa Bhatnagar (SC) : Law Finder Doc Id # 251170

2011(2) R.C.R.(Civil) 793

IMPORTANT

Petition for divorce by mutual consent - A party to petition can withdraw consent any time even after
18 months, but prior to passing of decree of dissolution.

A. Hindu Marriage Act, 1955, Section 13-B(2) - Petition for divorce by mutual consent - A party to
petition can withdraw consent any time even after 18 months, but prior to passing of decree of
dissolution - Held :-

Eighteen month period was specified only to ensure quick disposal of cases of divorce by mutual
consent, and not to specify the time period for withdrawal of consent. 1991(2) SCC 25, relied.

[Paras 15 and 16]

B. Hindu Marriage Act, 1955, Section 13 - Iretrieable break down of marriage Husband and wife
living separately for 11 years - Minor Daughter living with mother - Wife stated that she wants this
marriage to continue, especially in order to secure the future of their minor daughter, though her
husband wants it to end - Cannot be held that marriage broken irretrievably.

[Para 20]

C. Hindu Marriage Act, 1955, Section 13-B(2) - Divorce by consent - Scope of Section 13-B(2)
explained :-
 (1) The Court is bound to pass a decree of divorce declaring the marriage of the
parties before it to be dissolved with effect from the date of the decree, if the following
conditions are met :
(a) A second motion of both the parties is made not before 6 months from the date of
filing of the petition as required under sub-Section (1) and not later than 18 months;
(b) After hearing the parties and making such inquiry as it thinks fit, the Court is
satisfied that the averments in the petition are true; and
(c) The petition is not withdrawn by either party at any time before passing the
decree;
(2) If the second motion is not made within the period of 18 months, then the Court is
not bound to pass a decree of divorce by mutual consent. 1991(2) SCC 25, relied.
[Paras 14 and 15]

D. Constitution of India, Article 142, Section 13 - Irretrievable breakdown of a marriage cannot be

the sole ground for the dissolution of a marriage - Supreme Court uses its extraordinary power to
dissolve a marriage as having irretrievably broken down only when it is impossible to save the
marriage and all efforts made in that regard would, be counterproductive - Supreme Court further
clarified that the Court have not finally expressed any opinion on this issue. 1994(1) RRR 354 :
2007(2) RCR (Crl.) 515 : 2007(2) RCR (Civil) 595 : 2007(2) RAJ 177, relied.

[Paras 22, 24 and 25]

Marriages are made in heaven, or so it is said. But we are more often than not made to wonder what
happens to them by the time they descend down to earth. Though there is legal machinery in place
to deal with such cases, these are perhaps the toughest for the courts to deal with. Such is the case
presently before us.

2. The appellant-husband and the respondent-wife got married according to the Hindu Marriage Act,
1955 [hereinafter referred to as `the Act'] in 1994, and are blessed with a daughter a year
thereafter. Some time in the year 2000, due to differences in their temperaments, they began to live
separately from each other and have been living thus ever since. Subsequently, in 2001, the parties
filed a petition under Section 13B of the Act before the District Court, Gurgaon, for dissolution of the
marriage by grant of a decree of divorce by mutual consent. However, before the stage of second
motion and passing of the decree of divorce, the respondent withdrew her consent, and in view of
this, the petition came to be dismissed by the Ld. Addl. District Judge, Gurgaon, though the
appellant insisted for passing of the decree.

4. The issues that arise for our consideration and decision are as under:

(a) Whether the consent once given in a petition for divorce by mutual consent can be
subsequently withdrawn by one of the parties after the expiry of 18 months from the
date of the filing of the petition in accordance with Section 13B (1) of the Act.
(b) Whether the Court can grant a decree of divorce by mutual consent when the
consent has been withdrawn by one of the parties, and if so, under what
circumstances.

8. The question whether consent once given can be withdrawn in a proceeding for divorce by mutual
consent is no more res integra. This Court, in the case of Smt. Sureshta Devi v. Om Prakash, (1991)
2 SCC 25, has concluded this issue and the view expressed in the said decision as of now holds the
field.

9. In the case of Sureshta Devi (supra.), this Court took the view:

"9. The `living separately' for a period of one year should be immediately preceding
the presentation of the petition. It is necessary that immediately preceding the
presentation of petition, the parties must have been living separately. The expression
`living separately', connotes to our mind not living like husband and wife. It has no
reference to the place of living. The parties may live under the same roof by force of
circumstances, and yet they may not be living as husband and wife. The parties may
be living in different houses and yet they could live as husband and wife. What seems
to be necessary is that they have no desire to perform marital obligations and with
that mental attitude they have been living separately for a period of one year
immediately preceding the presentation of the petition. The second requirement that
they `have not been able to live together' seems to indicate the concept of broken
down marriage and it would not be possible to reconcile themselves. The third
requirement is that they have mutually agreed that the marriage should be dissolved.
10. Under sub-section (2) the parties are required to make a joint motion not earlier
than six months after the date of presentation of the petition and not later than 18
months after the said date. This motion enables the court to proceed with the case in
order to satisfy itself about the genuineness of the averments in the petition and also
to find out whether the consent was not obtained by force, fraud or undue influence.
The court may make such inquiry as it thinks fit including the hearing or examination
of the parties for the purpose of satisfying itself whether the averments in the petition
 are true. If the court is satisfied that the consent of parties was not obtained by force,
fraud or undue influence and they have mutually agreed that the marriage should be
dissolved, it must pass a decree of divorce."
On the question of whether one of the parties may withdraw the consent at any time
before the actual decree of divorce is passed, this Court held:
"13. From the analysis of the section, it will be apparent that the filing of the petition
with mutual consent does not authorise the court to make a decree for divorce. There
is a period of waiting from 6 to 18 months. This interregnum was obviously intended
to give time and opportunity to the parties to reflect on their move and seek advice
from relations and friends. In this transitional period one of the parties may have a
second thought and change the mind not to proceed with the petition. The spouse
may not be a party to the joint motion under sub-section (2). There is nothing in the
section which prevents such course. The section does not provide that if there is a
change of mind it should not be by one party alone, but by both. The High Courts of
Bombay and Delhi have proceeded on the ground that the crucial time for giving
mutual consent for divorce is the time of filing the petition and not the time when they
subsequently move for divorce decree. This approach appears to be untenable. At the
time of the petition by mutual consent, the parties are not unaware that their petition
does not by itself snap marital ties. They know that they have to take a further step to
snap marital ties. Sub-section (2) of Section 13-B is clear on this point. It provides
that "on the motion of both the parties. ... if the petition is not withdrawn in the
meantime, the court shall ... pass a decree of divorce ...". What is significant in this
provision is that there should also be mutual consent when they move the court with a
request to pass a decree of divorce. Secondly, the court shall be satisfied about the
bona fides and the consent of the parties. If there is no mutual consent at the time of
the enquiry, the court gets no jurisdiction to make a decree for divorce. If the view is
otherwise, the court could make an enquiry and pass a divorce decree even at the
instance of one of the parties and against the consent of the other. Such a decree
cannot be regarded as decree by mutual consent."

11. These observations of this Court in the case of Ashok Hurra (supra) cannot be considered to be
ratio decidendi for all purposes, and is limited to the facts of that case. In other words, the ratio laid
down by this Court in the case of Sureshta Devi (supra) still holds the field.

12. In the case of Smruti Pahariya v. Sanjay Pahariya, 2009(2) R.C.R.(Civil) 943 : 2009(3) R.A.J.
548 : (2009) 13 SCC 338, a bench of three learned judges of this Court, while approving the ratio
laid down in the case of Sureshta Devi (supra), has taken the view :-

"40. In the Constitution Bench decision of this Court in Rupa Ashok Hurra this Court
did not express any view contrary to the views of this Court in Sureshta Devi. We
endorse the views taken by this Court in Sureshta Devi as we find that on a proper
construction of the provision in Sections 13-B(1) and 13-B(2), there is no scope of
doubting the views taken in Sureshta Devi. In fact the decision which was rendered by
the two learned Judges of this Court in Ashok Hurra has to be treated to be one
rendered in the facts of that case and it is also clear by the observations of the
learned Judges in that case.
41. None of the counsel for the parties argued for reconsideration of the ratio in
Sureshta Devi.
42. We are of the view that it is only on the continued mutual consent of the parties
that a decree for divorce under Section 13-B of the said Act can be passed by the
court. If petition for divorce is not formally withdrawn and is kept pending then on the
date when the court grants the decree, the court has a statutory obligation to hear the
parties to ascertain their consent. From the absence of one of the parties for two to
three days, the court cannot presume his/her consent as has been done by the
learned Family Court Judge in the instant case and especially in its fact situation,
discussed above.
43. In our view it is only the mutual consent of the parties which gives the court the
jurisdiction to pass a decree for divorce under Section 13-B. So in cases under Section
13-B, mutual consent of the parties is a jurisdictional fact. The court while passing its
decree under Section 13-B would be slow and circumspect before it can infer the
existence of such jurisdictional fact. The court has to be satisfied about the existence
of mutual consent between the parties on some tangible materials which demonstrably
disclose such consent."

13. The appellant contends that the Additional District Judge, Gurgaon, was bound to grant divorce if
the consent was not withdrawn within a period of 18 months in view of the language employed in
Section 13B(2) of the Act. We find no merit in the submission made by the appellant in the light of
the law laid down by this Court in Sureshta Devi's case (supra).

14. The language employed in Section 13B(2) of the Act is clear. The Court is bound to pass a
decree of divorce declaring the marriage of the parties before it to be dissolved with effect from the
date of the decree, if the following conditions are met:
 a. A second motion of both the parties is made not before 6 months from the date of
filing of the petition as required under sub- section (1) and not later than 18 months;
b. After hearing the parties and making such inquiry as it thinks fit, the Court is
satisfied that the averments in the petition are true; and
c. The petition is not withdrawn by either party at any time before passing the decree;

15. In other words, if the second motion is not made within the period of 18 months, then the Court
is not bound to pass a decree of divorce by mutual consent. Besides, from the language of the
Section, as well as the settled law, it is clear that one of the parties may withdraw their consent at
any time before the passing of the decree. The most important requirement for a grant of a divorce
by mutual consent is free consent of both the parties. In other words, unless there is a complete
agreement between husband and wife for the dissolution of the marriage and unless the Court is
completely satisfied, it cannot grant a decree for divorce by mutual consent. Otherwise, in our view,
the expression `divorce by mutual consent' would be otiose.

16. In the present fact scenario, the second motion was never made by both the parties as is a
mandatory requirement of the law, and as has been already stated, no Court can pass a decree of
divorce in the absence of that. The non-withdrawal of consent before the expiry of the said eighteen
months has no bearing. We are of the view that the eighteen month period was specified only to
ensure quick disposal of cases of divorce by mutual consent, and not to specify the time period for
withdrawal of consent, as canvassed by the appellant.

17. In the light of the settled position of law, we do not find any infirmity with the orders passed by
the Ld. Single Judge.

19. In the case of Laxmidas Morarji v. Behrose Darab Madan, 2009(2) R.C.R.(Rent) 347 : (2009) 10
SCC 425, a Bench of three learned Judges (of which one of us was a party), took the view:

"25. Article 142 being in the nature of a residuary power based on equitable
principles, the Courts have thought it advisable to leave the powers under the article
undefined. The power under Article 142 of the Constitution is a constitutional power
and hence, not restricted by statutory enactments. Though the Supreme Court would
not pass any order under Article 142 of the Constitution which would amount to
supplanting substantive law applicable or ignoring express statutory provisions dealing
with the subject, at the same time these constitutional powers cannot in any way, be
controlled by any statutory provisions. However, it is to be made clear that this power
cannot be used to supplant the law applicable to the case. This means that acting
under Article 142, the Supreme Court cannot pass an order or grant relief which is
totally inconsistent or goes against the substantive or statutory enactments pertaining
to the case. The power is to be used sparingly in cases which cannot be effectively and
appropriately tackled by the existing provisions of law or when the existing provisions
of law cannot bring about complete justice between the parties."

20. Following the above observation, this Court in the case of Manish Goel v. Rohini Goel, 2010(2)
R.C.R.(Civil) 194 : 2010(1) R.A.J. 707 : (2010) 4 SCC 393, while refusing to dissolve the marriage
on the ground of irretrievable breakdown of marriage, held:

"19. Therefore, the law in this regard can be summarised to the effect that in exercise
of the power under Article 142 of the Constitution, this Court generally does not pass
an order in contravention of or ignoring the statutory provisions nor is the power
exercised merely on sympathy."

21. In other words, the power under Article 142 of the Constitution is plenipotentiary. However, it is
an extraordinary jurisdiction vested by the Constitution with implicit trust and faith and, therefore,
extraordinary care and caution has to be observed while exercising this jurisdiction.

24. This Court uses its extraordinary power to dissolve a marriage as having irretrievably broken
down only when it is impossible to save the marriage and all efforts made in that regard would, to
the mind of the Court, be counterproductive [See Samar Ghosh v. Jaya Ghosh, 2007(2) R.C.R.
(Criminal) 515 : 2007(2) R.C.R.(Civil) 595 : 2007(2) R.A.J. 177: (2007) 4 SCC 511].

25. It is settled law that this Court grants a decree of divorce only in those situations in which the
Court is convinced beyond any doubt that there is absolutely no chance of the marriage surviving
and it is broken beyond repair. Even if the chances are infinitesimal for the marriage to survive, it is
not for this Court to use its power under Article 142 to dissolve the marriage as having broken down
irretrievably. We may make it clear that we have not finally expressed any opinion on this issue.

In Ashish Ranjan v. Anupama Tandon (SC) : Law Finder Doc Id # 229081

2011(1) R.C.R.(Civil) 291

IMPORTANT
Custody of minor child given to spouse - Doctrine of res- judicata is not applicable in matters of child
custody - The other spouse can apply for custody, modification of order etc if first spouse violated
term of custody.

IMPORTANT

Custody of minor child given to mother by way of consent order with visiting rights to father -
Mother tutored the child to make him hostile towards father and thus frustrated the visiting rights to
father - Wife guilty of contempt - Can apply for custody.

A. Civil Procedure Code, Section 11 - Hindu Minority and Guardianship Act, 1956, Section 6 - Civil
Procedure Code, Order 23, Rule 3 - Guardians and Wards Act, 1890, Section 7 - Custody of minor
child aged 4 years given to mother by way of consent Order of Court with visiting rights to father -
Mother tutored the child to make him completely hostile towards father - Child lost affection and
respect for father and thus frustrated the visiting rights of father - Mother guilty of contempt but no
punishment awarded to mother, because of punishment would not serve any purpose, nor it would
serve in a better way to the welfare of the child - Father justified in seeking review/modification of
consent order - Doctrine of res-judicata is not applicable in matters of child custody.

[Paras 20, 21 and 22]

B. Guardians and Wards Act, 1890, Section 7 - Civil Procedure Code, Section 11 - Contempt of Court
Act, 1971, Section 2(b) - Hindu Minority and Guardianship Act, 1956, Section 6 - Civil Procedure
Code, Order 23, Rule 3 - Constitution of India, Articles 129 and 142 - Custody of minor child -
Consent order passed by Supreme Court giving custody of child to mother - Mother violated the
consent order and not allowing visiting rights to father - Wife guilty of contempt - Further held :-

In addition to the statutory provisions of the Contempt of Court Act, 1971 the powers under Articles
129 and 142 of the Constitution are always available to Supreme Court to see that the order or
undertaking which is violated by the contemnor is effectuated and the court has all powers to
enforce the consent order passed by it.

[Para 20]

C. Hindu Minority and Guardianship Act, 195, Section 6 - Custody of child - While determining the
question as to which parent the care and control of a child should be given, the paramount
consideration remains the welfare and interest of the child and not the rights of the parents under
the statute - While considering the welfare of the child, the "moral and ethical welfare of the child
must also weigh with the court as well as his physical well- being" - The child cannot be treated as a
property or a commodity and, therefore, such issues have to be handled by the court with care and
caution with love, affection and sentiments applying human touch.

[Para 18]

D. Guardians and Wards Act, 1890, Section 7 - Constitution of India, Article 142 - Hindu Minority
and Guardianship Act, 1956, Section 6 - Question with regard to custody of child - The niceties of
law cannot come in the way of this Court while deciding an issue of such a delicate nature - Further
held:-

(1) Mere technicality cannot prevent the Court from doing justice in exercise of its
inherent power - The power under Article 142 of the Constitution can be exercised by
this Court to do complete justice between the parties, wherever it is just and equitable
to do so and must be exercised to prevent any obstruction to the stream of justice.
(2) Statutory provisions dealing with the custody of the child under any personal law
cannot and must not supersede the paramount consideration as to what is conductive
to the welfare of the minor.
[Paras 11 and 14]

15. In Rosy Jacob v. Jacob A. Chakramakkal, AIR 1973 SC 2090, this Court (Three-Judge Bench)
considered the nature of custody of a minor under the provisions of Guardians and Wards Act, 1890
and application of doctrine of res-judicata/estoppel in respect of the same and held as under :

"The appellant's argument based on estoppel and on the orders made by the court
under the Indian Divorce Act with respect to the custody of the children did not appeal
to us. All orders relating to the custody of the minor wards from their very nature
must be considered to be temporary orders made in the existing circumstances. With
the changed conditions and circumstances, including the passage of time, the Court is
entitled to vary such orders if such variation is considered to be in the interest of the
welfare of the wards. It is unnecessary to refer to some of the decided cases relating
to estoppel based on consent decrees, cited at the bar. Orders relating to custody of
wards even when based on consent are liable to be varied by the Court, if the welfare
of the wards demands variation."
16. The aforesaid judgment was re-considered by this Court (Two- Judge Bench) in Dhanwanti Joshi
v. Madhav Unde, 1998(1) R.C.R.(Civil) 190 : (1998) 1 SCC 112, and after quoting the ratio of the
said judgment, held as under :

"21...... However, we may state that in respect of orders as to custody already passed
in favour of the appellant the doctrine of res judicata applies and the Family Court in
the present proceedings cannot re-examine the facts which were formerly adjudicated
between the parties on the issue of custody or are deemed to have been adjudicated.
There must be proof of substantial change in the circumstances presenting a new case
before the court. It must be established that the previous arrangement was not
conducive to the child's welfare or that it has produced unsatisfactory results....."

17. In Jai Prakash Khadria v. Shyam Sunder Agarwalla & Anr., 2000(3) R.C.R.(Civil) 143 : AIR 2000
SC 2172; and Mausami Moitra Ganguli v. Jayant Ganguli, 2008(4) R.C.R.(Civil) 551 : 2008(5) R.A.J.
614 : AIR 2008 SC 2262, this court held that it is always permissible for the wards to apply for the
modification of the order of the court regarding the custody of the child at any stage if there is any
change in the circumstances.

(See also Vikram Vir Vohra v. Shalini Bhalla, 2010(2) R.C.R.(Civil) 521 : 2010(2) R.A.J. 401 : (2010)
4 SCC 409)

18. It is settled legal proposition that while determining the question as to which parent the care and
control of a child should be given, the paramount consideration remains the welfare and interest of
the child and not the rights of the parents under the statute. Such an issue is required to be
determined in the background of the relevant facts and circumstances and each case has to be
decided on its own facts as the application of doctrine of stare decisis remains irrelevant insofar as
the factual aspects of the case are concerned. While considering the welfare of the child, the "moral
and ethical welfare of the child must also weigh with the court as well as his physical well-being".
The child cannot be treated as a property or a commodity and, therefore, such issues have to be
handled by the court with care and caution with love, affection and sentiments applying human
touch to the problem. Though, the provisions of the special statutes which govern the rights of the
parents or guardians may be taken into consideration, there is nothing which can stand in the way of
the court exercising its parens patriae jurisdiction arising in such cases. (vide Gaurav Nagpal v.
Sumedha Nagpal, 2008(4) R.C.R.(Civil) 928 : 2008(6) R.A.J. 422 : AIR 2009 SC 557).

19. Statutory provisions dealing with the custody of the child under any personal law cannot and
must not supersede the paramount consideration as to what is conducive to the welfare of the
minor. In fact, no statute on the subject, can ignore, eschew or obliterate the vital factor of the
welfare of the minor.

In Md. Nooman v. Md. Jabed Alam (SC) : Law Finder Doc Id # 219309

2010(4) R.C.R.(Civil) 744

IMPORTANT

Decision of Rent Court on question of title will operate as res judicata where the question of title was
expressly raised and expressly decided between the parties - Decision would not operate as res
judicata where question of title had gone into only incidentally and collaterally.

Civil Procedure Code, Section 11 - Transfer of Property Act, 1882, Section 111(g) - Decision of Rent
Court on question of title will operate as res judicata where the question of title was expressly raised
and expressly decided between the parties - Decision would not operate as res judicata where
question of title had gone into only incidentally and collaterally.

ON FACTS :-

Suit for eviction of tenant on ground of arrears of rent - Tenant denying title of landlady over the
suit property and raising title in himself - Question title expressly decided by Rent Court in favour
landlord by framing an issue but dismissed the suit on the ground that landlady failed to prove
relationship of landlord and tenant - Decision of Rent Court will operate as res judicata in a
subsequent suit between the same parties - Held :-

Ordinarily decision of Rent Court on question of title will not operate as res judicata, but where the
question of title was directly decided in a rent suit, the decision would be res judicata.2000(2)
RCR(Rent) 509 Distt, AIR (36) 1949 Patna 510 approved.

[Para 15]

Aftab Alam, J. - A finding on the question of title recorded in a suit for eviction would how far be
binding in a subsequent suit for declaration of title and recovery of possession between the same
parties? This is the question that arises for consideration in this appeal. The answer to the question
would depend on, in what manner the question of title was raised by the parties and how it was
dealt with by the court in the eviction proceedings. Ordinarily, it is true, in a suit for eviction even if
the court goes into the question of title, it examines the issue in an ancillary manner and in such
cases (which constitute a very large majority) any observation or finding on the question of title
would certainly not be binding in any subsequent suit on the dispute of title. But there may be
exceptions to the general rule and as we shall find presently, the case in hand seems to fall in that
exceptional category of very limited number of cases.

14. Mr. H.L. Agrawal, learned senior advocate, appearing for the appellant contended that the High
Court had seriously erred in holding that the finding in the earlier suit of eviction would operate as
res judicata in the subsequent suit for declaration of title and recovery of possession. Mr. Agrawal
contended that a court dealing with an eviction suit was a creature of the Rent Act and was a court
of limited jurisdiction. It had no authority or jurisdiction to decide disputes of title and hence, any
finding recorded by it on the larger issue of title could not be binding on a court under the Code of
Civil Procedure adjudicating upon a dispute of title between the two sides. He further submitted that
there may be instances where in a suit for eviction the tenant might deny the title of the person
seeking his ejectment and in those cases the rent court may incidentally go into the question of title
in order to decide on the primary issue of eviction. But its findings on the issue of title would only be
incidental and never binding in a proper suit for declaration of title and recovery of possession. In
support of the submission he relied upon a decision of this Court in Shamim Akhtar v. Iqbal Ahmad
& Anr., (2000) 8 SCC 123, in which it is said that in an eviction suit under the Rent Act, the question
of title can be considered by the court as an incidental question and the final determination of title
must be left to the decision of the competent court. The decision in Shamim Akhtar arose from U.P.
Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 and the Provincial Small Cause
Courts Act, 1887 and it was on a totally different set of facts. The observation of the court relied
upon by Mr. Agrawal was of course stating the general rule and no more than that. The decision in
Shamim Akhtar in no way helps the case of the appellants in the present appeal.

15. The counsel for the respondents on the other hand relied upon a decision of this court in
Sajjadanashin Sayed Md. B.E.Edr. by LRs. (D) v. Musa Dadabhai Ummer and Ors., 2000(2) R.C.R.
(Rent) 509 : (2000) 3 SCC 350. The decision in this case dealt with the question when a matter can
be said to be directly and substantially in issue and when it is only collaterally and incidentally in
issue. The decision in Sajjadanashin does seem to help the case of the respondents. But we may
state here that Mr. Agrawal with great fairness brought to our notice a decision of the Patna High
Court in Pardip Singh v. Ram Sundar Singh, AIR (36) 1949 Patna 510, though it is clearly against
him. It is an old decision in which the division bench of the High Court placed reliance on two earlier
decisions of the Privy Council. In Pardip Singh Meredith J., speaking for the division bench of the
court observed as follows :

"The decision in a rent suit is not res judicata on the question of title unless the
question of title had to be decided, was expressly raised, and was expressly decided
between the parties and in each case it is necessary to examine carefully the decision
in the rent suit before any opinion can be formed as to whether it operates as res
judicata on the question of title or not. Ordinarily the decision would be res judicata
only with regard to the existence of the relationship of landlord and tenant. The
difference in the two classes of cases is very well illustrated in two Privy Council
decisions, namely, Run Bahadoor Singh v. Mt. Lucho Koer, 12 I.A. 23 : (11 Cal. 301
P.C.), where it was held that the decision was not res judicata as the question of title
had been gone into only incidentally and collaterally, and Radhamadhub Holdar v.
Manohar Mookerji, 15 I.A. 97: (15 Cal. 756 P.C.), where the question of title was
directly decided in a rent suit, and the decision was held to be res judicata."

We respectfully concur with the view expressed in the decision in Pardip Singh.

In V.D. Bhanot v. Savita Bhanot (SC) : 2012(1) R.C.R.(Civil) 972

IMPORTANT

Wife subjected to violence before coming into force Protection of Domestic Violence Act, 2005 - Wife
entitled to maintain petition after coming into force the said Act.

A. Protection of Women from Domestic Violence Act, 2005, Sections 18, 19, 20 and 12 - Wife
compelled to leave matrimonial home after 31 years of marriage - Couple had no children - Husband
directed to provide a portion of his house to wife to where he was residing and pay Rs. 6,000/- p.m.
towards her expenses - If the wife was reluctant live with her husband, that husband to pay Rs.
4,000/- for obtaining alternative accommodation - Held, in addition to providing the residential
accommodation to the Wife, the Husband shall also pay a total sum of Rs. 10,000/- per month to the
Wife towards her maintenance and day-to-day expenses.

[Paras 9, 10 and 11]

B. Protection of Women from Domestic Violence Act, 2005 (PWD Act), Sections 31 and 33 -
Protection of Women from Domestic Violence Act, 2005, Sections 12, 18, 19 and 20 - Wife subjected
to violence prior to coming of force of PWD Act and was no longer living with husband - Wife entitled
to maintain petition under the 2005 Act - Even if the acts of domestic violence had been committed
prior to the coming into force of the said Act, notwithstanding the fact that in the past she had lived
together with her husband in a shared household, but was no more living with him, at the time when
the Act came into force.

[Paras 5 and 8]

In Rohit Shekhar v. Narayan Dutt Tiwari (D.B.)(Delhi) : Law Finder Doc Id # 355675

2012(2) R.C.R.(Civil) 1011 : 2012(2) R.C.R.(Criminal) 889

IMPORTANT

Order of Court directing a person to undergo DNA testing to determine paternity of Child- In case of
refusal, Court can order use of Police force to take sample.

A. Evidence Act, Sections 112 and 114 - DNA testing - Order of Court directing a person to undergo
DNA testing to determine paternity of Child- In case of refusal, Court can order use of Police force to
take sample.

ON FACTS

Suit by appellant for declaration that he was son of Respondent who was denying the paternity and
prayed that order be passed for DNA testing - Court directing the Respondent undergo DNA testing -
Respondent refusing to undergo DNA Testing - Court can order use of Police force of take sample =
Contention of Respondent that court could draw adverse inference in case of refusal - Contention
repelled - Held :-

(i) The Court is not bound to or obliged to draw such adverse inferences.

(ii) Adverse inference from non-compliance cannot be a substitute to the enforceability of a direction
for DNA testing. 92(2001) DLT 103 : AIR 1943 FC 75 : AIR 1920 PC 84, relied.

[Paras 33, 34 and 36]

B. Evidence Act, Section 112 - DNA Testing to determine paternity of Child - Held, A direction for
DNA testing can be issued only after the test of eminent need is satisfied.

[Para 34]

C. Evidence Act, Section 112 - DNA Test - Statutory provision for enforcement of an order directing
DNA Test - At the time the civil procedure was codified in the year 1908, the tests such as of DNA
were not even comprehensible much less available - Creative interpretation of the provisions of the
statute demands that with the advance in science and technology, the Court should read and
provisions of a statute in such a manner so as to give effect thereto. 2007(4) RCR (Civil) 741 :
2007(6) Recent Apex Judgment 26, relied.

[Paras 21 and 22]

D. Constitution of India, Articles 21 and 14 - Evidence Act, Section 112 - DNA testing - Direction to a
person to undergo DNA testing to determine paternity - Not violative of Article 21 of Constitution.
2010(2) RCR (Crl.) 896 : 2010(3) Recent Apex Judgment (RAJ) 257 : 1989(1) RCR (Crl.) 512 :
2011(3) RCR (Civil) 779 : 2011(4) Recent Apex Judgment (RAJ) 202, relied.

[Para 20]

E. Evidence Act, Section 112 - DNA Testing to determine paternity - Order of DNA testing should not
be made in a routine manner - A direction for DNA testing can be issued only after the test of
eminent need is satisfied.

[Para 34]

9. The order dated 23rd December, 2010 of the learned Single Judge directing DNA test,
observes/finds/holds :-

a. a distinction has to be drawn between 'legitimacy' and 'paternity' of the child;

b. Section 112 of the Indian Evidence Act, 1872 is intended to safeguard the interest
of the child by securing his/her legitimacy and not to paternity;
c. that a child has a right to know the truth of his/her origin;
d. the right of a child to know his biological roots can be enforced through reliable
scientific tests and if the interest of the child is best sub-served by establishing
 paternity of someone who is not the husband of his mother, the Court should not shut
that consideration altogether; Indian law casts an obligation upon a biological father to
maintain his child and does not disregard rights of an illegitimate child to
maintenance;
e. though the Supreme Court in Goutam Kundu v. State of West Bengal, 1993(2)
R.C.R.(Criminal) 497 : (1993)3 SCC 418 had advised against conduct of scientific tests
of the nature of giving blood samples for the purpose of DNA testing in a routine
manner but did not altogether ban their conduct upon third party;
f. that the Courts in Sharda v. Dharmpal, 2003(2) R.C.R.(Civil) 795 : AIR 2003 SC
3450 and Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for
Women, 2010(4) R.C.R.(Civil) 53 : 2010(4) R.A.J. 681 : AIR 2010 SC 2851 have held
that there is no violation of the right to life, or privacy of a person, in directing a DNA
test to be undergone by him - to undergo such test is not an invasion of his right to
life;
g. Bhabani Prasad Jena (supra), affirms the power of Court to direct a DNA test
though cautions that the said power should be exercised after weighing all "pros and
cons" and satisfying that the "test of 'eminent need?' for such an order is fulfilled;
h. documents on the suit file established that respondent No. 2 and her husband were
estranged in 1970 and subsequently their marriage was dissolved - they had also filed
affidavits in this regard and which could not at that stage of proceedings be
disbelieved;
i. the husband of the respondent No. 2 had also placed on record the DNA test report
of himself and of the appellant to demonstrate that he could not be the father of the
appellant;
j. the presumption of legitimacy of a child born during the subsistence of a lawful
wedlock provided in Section 112 of the Evidence Act is directed towards safeguarding
the interest of the child and protecting it from being bastardized in the event that his
paternity is in question; however that is not the issue in the present case;
k. that the rationale laid down in the decisions, where it was the father who was
resisting parenthood at the cost of bastardizing the child, does not apply where the
child on attaining adulthood moves the Court to determine his parentage - the
question of 'protective jurisdiction' of the Court or applicability of Section 112 of the
Evidence Act then does not arise;
l. the appellant, being over 29 years of age, capable of taking his decisions, the
question of his welfare being adversely affected did not arise;
m. that though the respondent No. 1 could not be directed to undergo DNA test on
mere asking of the appellant and on the assumption that he is the father of the
appellant but the other material on record established a strong prima facie case
suggesting "eminent need" to issue the direction for DNA test.

11. The learned Single Judge, in the impugned judgment, has framed the following question :

"Whether a person can be physically compelled to give a blood sample for DNA
profiling in compliance with a civil Court order in a paternity action? If it were held
that the same was permissible, how is the Court to mould its order and what would be
the modalities for drawing the involuntary sample?"

14. The Supreme Court in H.M. Kamaluddin Ansari & Co. v. Union of India, (1983)4 SCC 417 has
held that orders of the Court are intended to be complied with and the Court would not pass an
ineffective injunction order and the Court never passes an order for the fun of passing it and orders
are passed only for the purpose of being carried out.

16. The Supreme Court also, in K.A. Ansari v. Indian Airlines Ltd., 2009(2) S.C.T. 459 : (2009)2 SCC
164 has held that difficulty in implementation of an order passed by the Court, howsoever, grave its
effect may be, is no answer for its non- implementation. In Deep Chand v. Mohan Lal, 2000(3)
R.C.R.(Civil) 1 : (2000)6 SCC 259 it was held that the purpose of execution proceeding is to enable
the decree-holder to obtain the fruits of his decree and even if there is any ambiguity, interpretation
which assists the decree-holder should be accepted; the execution of decree should not be made
futile on mere technicalities. It was further observed that keeping in view the prolonged factum of
litigation resulting in the passing of a decree in favour of a litigant, a rational approach is
necessitated and the policy of law is to give a fair and liberal, and not a technical construction,
enabling the decree- holder to reap the fruits of his decree.

17. We may at this stage notice that under Section 36 of the CPC, the provisions relating to
execution of decree, apply to the execution of orders also; if any precedent is needed, reference can
be made to M.V.S. Manikayala Rao v. M. Narasimhaswami, AIR 1966 SC 470.

18. The Courts have always attempted against rendering the orders and decrees of the Court to be
merely good on paper and otherwise ineffective to settle the rights of the parties. Attempts have
always been made to take a view/interpretation which renders a decree of the Court to be
executable rather than inexecutable. The Courts cannot hold a decree or order passed after long
deliberations as in the present case also, to be merely paper decree/order incapable of deciding in
fact what it was intended to decide or incapable of changing the position which it intended to
change. The Court cannot take a role of a silent spectator and see its order being frustrated by a
party. The power of enforcement of orders cannot be reduced into an empty one.

19. It cannot also be lost sight of that the order directing the respondent No. 1 to undergo the DNA
testing was an order in exercise of powers by the Court under Order 39 Rules 1 & 2 of the Civil
Procedure Code and not in exercise of powers as under Order 12 Rule 8 or under Order 11 or Order
16 of the CPC, for non- compliance whereof adverse inference is permitted to be drawn. A Court of
law cannot sit still with folded hands and countenance its injunction being treated with indifference
or scant courtesy by the party against whom it is directed and who is bound to obey its terms. This
is particularly so when such injunction has been confirmed in appeal and stay thereof been rejected
by the Supreme Court.

20. What also surprises us is that the order of injunction aforesaid, has been held by the learned
Single Judge to be un-implementable and un-enforceable for the reason of implementation thereof
being fraught with physical coercion and intrusion on the rights of the respondent No. 1 under Article
21 of the Constitution and being not envisaged in any statutory provision governing civil litigation.
However, the impugned order itself, as also the earlier order dated 23rd December, 2010 holds, a
direction for such DNA testing to be not violative of Article 21. The Supreme Court in Selvi v. State
of Karnataka, 2010(2) R.C.R.(Criminal) 896 : 2010(3) Recent Apex Judgments (R.A.J.) 257 :
(2010)7 SCC 263 upheld the authority of Civil Court to order a medical examination in exercise of
the inherent powers vested in it by Section 151 of the CPC, though held that the same reasoning
cannot be applied in the criminal context (para 175). Rather (in para 203) it was held that compelled
extraction of blood samples in the course of a medical examination does not amount to "conduct
that shocks the conscience" and that "use of force as may be reasonably necessary is mandated by
law and hence it meets the threshold of procedure established by law". The learned Single Judge has
in paras 74, 78, 79 and 80 of the impugned judgment also held that the right of privacy is subject to
such action as may be lawfully taken for protection of rights of others; that the level of privacy
protection depends on the context; that Human Rights law justifies carrying out of compulsory and
mandatory medical examination which may be bodily invasive and that the right to privacy is not an
absolute right and can be reasonably curtailed. The learned Single Judge having held so, we are
unable to fathom as to how the same factors could be an impediment to the enforceability and
implementability of the order. What is not an impediment to the making of the order, cannot become
an impediment to the enforceability of the order and would tantamount to saying that the Court
order is violative of the rights of the litigant. The Constitution Bench of Supreme Court in Triveniben
v. State of Gujarat, (1989)1 SCC 678 and recently reiterated in Indian Council for Enviro-Legal
Action v. Union of India, 2011(3) R.C.R.(Civil) 779 : 2011(4) Recent Apex Judgments (R.A.J.) 202 :
(2011)8 SCC 161 held that a judgment of Court can never be challenged under Article 14 or Article
21. It is thus not open to the respondent to urge that the earlier order in the suit directing DNA
testing was violative of his rights.

21. As far as the aspect of there being no statutory provision(s) for implementability/enforceability
of such an order is concerned, we had during the hearing also invited the attention of the counsels
to Section 51 of the Civil Procedure Code dealing with "Powers of Court to enforce execution". The
same, after prescribing the various modes of execution, in Clause (e) provides for execution "in such
other manner as the nature of the relief granted may require". The Supreme Court in State of
Haryana v. State of Punjab, 2004(3) R.C.R.(Civil) 596 : (2004)12 SCC 673 has held that the
residuary powers under Section 51(e) allow a Court to pass orders for enforcing a decree in a
manner which would give effect to it. It cannot also be lost sight of that at the time the civil
procedure was codified in the year 1908, the tests such as of DNA were not even comprehensible
much less available. However now that such tests, which are an aid in adjudication are available, the
Courts cannot allow such advancements to bypass the Courts. The Supreme Court in State of
Maharashtra v. Dr. Praful B. Desai, 2003(2) R.C.R.(Criminal) 770 : 2004(1) Apex Criminal 111 :
(2003)4 SCC 601 on the principle of interpretation of an ongoing statute (in that case Criminal
Procedure Code) relied on the commentary titled "Statutory Interpretation", 2nd Edition of Francis
Bennion laying down :

"It is presumed the Parliament intends the Court to apply to an ongoing Act a
construction that continuously updates its wordings to allow for changes since the Act
was initially framed. While it remains law, it has to be treated as always speaking.
This means that in its application on any day, the language of the Act though
necessarily embedded in its own time, is nevertheless to be construed in accordance
with the need to treat it as a current law.
In construing an ongoing Act, the interpreter is to presume that Parliament intended
the Act to be applied at any future time in such a way as to give effect to the original
intention. Accordingly, the interpreter is to make allowances for any relevant changes
that have occurred since the Act's passing, in law, in social conditions, technology, the
meaning of words and other matters. .....That today's construction involves the
supposition that Parliament was catering long ago for a state of affairs that did not
then exist is no argument against that construction. Parliament, in the wording of an
enactment, is expected to anticipate temporal developments. The drafter will foresee
the future and allow for it in the wording.
An enactment of former days is thus to be read today, in the light of dynamic
processing received over the years, with such modification of the current meaning of
its language as will now give effect to the original legislative intention. The reality and
 effect of dynamic processing provides the gradual adjustment. It is constituted by
judicial interpretation, year in and year out. It also comprises processing by executive
officials."

27. It is also not as if use of force and police for that purpose is unknown to Civil Jurisprudence.
Such force, through the machinery of police is always used for execution of orders/decrees upon
resistance by the judgment debtor/persons against whom such orders are made. Use of police for
the purpose of enforcing interim orders (see Kailash Chander Sharma v. Nirmala Wati, 92 (2001)
DLT 103), for restoring status quo ante and even for execution of local commissions is common (see
Indian Express Newspapers (Bombay) P. Ltd. v. T.M. Nagarajan, MANU/DE/0382/1987). The
jurisprudence has been evolving. Finding the interim orders in the cases of infringement of
trademarks to be defeated, the Courts have relied on John Doe orders which are implementable
against unknown persons also and where the Commissioners are authorized to visit places of
unnamed defendants and wherefrom the infringing goods may be found. We are unable to
appreciate as to why when in execution of a decree or an order of possession it is permissible for the
police to physically lift and remove him from the property to which he wants to cling or to demolish
the house of the judgment debtor (see Ram Awatar Agarwal v. Corpn. of Calcutta, 1999(4) R.C.R
(Civil) 138 : (1999)6 SCC 532), it should be held to be impermissible to compel a person to undergo
a medical test or to give a bodily sample for such test.

28. The Supreme Court in Zahurul Islam v. Abul Kalam, (1995) Supp (1) SCC 464 held that decrees
have to be executed, if necessary with the police help. A Division Bench of Madras High Court in Sri-
la-Sri Sivasubramanyananda Swami v. Sri-la-Sri Arunachalasamy Chidambaram, (1993)1 MLJ 274
had the occasion to examine whether the Civil Courts can issue directions to the police officials for
execution and implementation of the orders of the Civil Court. Relying on Jaipur Mineral
Development Syndicate v. CIT, (1977)1 SCC 508, it was held that the Civil Courts in exercise of its
inherent power and in the absence of any express or implied prohibition are entitled to pass orders
as may be necessary to prevent abuse of the process of the Court and to avoid gross miscarriage of
justice. It was accordingly held that a litigant who has secured an order from the Court is entitled to
full benefit thereof and the Court is entitled to resort to law enforcement machinery to see that its
orders are obeyed. It was further held that no technicality can prevent the Court from doing justice
in exercise of its inherent powers. To the same effect is the judgment of the Karnataka High Court in
Smt. Karisiddamma v. Smt. Sanna Kenchamma, MANU/KA/0628/2009.

29. We are also of the view that the plea of non-implementability and non- enforceability of such a
direction ought to have been taken, when the appellant had sought the injunction and if not taken
then, was barred by the principles of constructive res judicata. It is a settled principle of law that the
principles of res judicata and constructive res judicata apply to the successive stages of the same
proceedings also. The Supreme Court, as far back as in Satyadhyan Ghosal v. Deorajin Debi, AIR
1960 SC 941 observed that the principle of res judicata applies also as between the two stages in
the same litigation to the extent that the Court having at an earlier stage decided the matter in one
way will not allow the parties to re-agitate the matter again at a subsequent stage of the same
proceedings. Again in Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993, while reiterating the same
principle, distinction was carved out between different kinds of interlocutory orders. It was observed
that while interlocutory orders of injunction or receiver, which are designed to preserve the status
quo pending the litigation and to ensure that the parties might not be prejudiced by the delay in the
proceedings, are capable of being altered or varied by subsequent applications for the same relief
though normally only on proof of new facts or new situations which subsequently emerge as they do
not impinge upon the legal rights of the parties, other interlocutory orders designed to ensure the
just, smooth, orderly and expeditious disposal of the suit even though not deciding any matter in
issue viz. on applications under Order 9, Rule 7 attract the principle of res judicata or principle
analogous thereto; repeated applications seeking the same relief are not permitted.

30. The Supreme Court Y.B. Patil v. Y.L. Patil, (1976)4 SCC 66 opined that once an order made in
course of a proceeding becomes final, it would be binding at subsequent stage of that proceeding. In
Bhanu Kumar Jain v. Archana Kumar, 2005(2) R.C.R.(Civil) 781 : (2005)1 SCC 787 it was clarified
that the principles of constructive res judicata also apply with full force at subsequent stage of the
same proceedings. The Supreme Court in Ajay Mohan v. H.N. Rai, 2007(6) R.A.J. 662 : (2008)2 SCC
507 held that a mere amendment of the plaint does not entitle the plaintiff to injunction under Order
39, Rules 1 & 2 of the Civil Procedure Code which had been denied on an earlier occasion.

32. Yet another principle may be noted. The Supreme Court recently in Shimnit Utsch India Pvt. Ltd.
v. West Bengal Transport Infrastructure Development Corporation Ltd., (2010)6 SCC 303 reiterated
that law on the binding effect of an order passed by a Court of law is well settled; if an order has
been passed by a Court which had jurisdiction to pass it, then the error or mistake in the order can
be got corrected from a higher Court and not by ignoring the order or disobeying it expressly or
impliedly. Halsbury's Laws of England opining that the fact that an order ought not to have been
made is not sufficient excuse for disobeying it and disobedience to it constitutes a contempt was
cited with approval.

33. We also find the action of the respondent No. 1 of filing I.A. 10394/2011 to be contumacious.
For this reason also, we are of the opinion that police force against him is justified.
34. We may highlight that as per the dicta of the Supreme Court noticed by the learned Single Judge
also, a direction for DNA testing can be issued only after the test of eminent need is satisfied. The
order dated 23rd December, 2010 directed DNA testing of the respondent No. 1 only after holding
the said test to be satisfied in the facts of the present case. The impugned judgment though also
holding that the test of eminent need is satisfied has declined to enforce the order. It is thus not as
if the order for DNA testing is made or has been made in the present case on the asking or in a
routine manner for the consequence only of adverse inference to flow from non-compliance thereof.
We find inherent contradiction in the Court on the one hand holding eminent need for such a test
and in the same breath allowing the need to remain unsatiated. We also find the drawing of adverse
inference from refusal to comply with the direction for medical examination to be not sufficient to
satiate the need found by the Court. A legal fiction under Section 114 of the Evidence Act, as
adverse inference is, is not reality but which the said provision requires the Court to accept as
reality. The Court is not bound to or obliged to draw such adverse inferences (see Emperor v.
Sibnath Banerjee, AIR 1943 FC 75, Dhanvantrai Balwantrai Desai v. State of Maharashtra, AIR 1964
SC 575 and Fakir Mohd. (Dead) by LRs v. Sita Ram, 2002(1) R.C.R.(Rent) 91 : AIR 2002 SC 433). A
presumption is not in itself evidence but only makes a prima facie case for parties in whose favour it
exists (see Sodhi Transport Co. v. State of U.P., (1986)2 SCC 486). As far back as in Damisetti
Ramchendrudu v. Damisetti Janakiramanna, AIR 1920 PC 84 it was held that presumption cannot
displace adequate evidence. The Supreme Court also in Mohanlal Shamji Soni v. Union of India,
1991(3) R.C.R (Criminal) 182 : 1991 Supp (1) SCC 271 held that it is the rule of law in evidence
that the best available evidence should be brought before the Court to prove a fact or the points in
issue and the Court ought to take an active role in the proceedings in finding the truth and
administering justice. Recently in Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria
(Dead), 2012(2) Recent Apex Judgments (R.A.J.) 6 : 2012(2) R.C.R.(Civil) 441 : 2012(3) SCALE 550
it was reiterated that the truth is the guiding star and the quest in the judicial process and the
voyage of trial. The trend world over of full disclosure by the parties and deployment of powers to
ensure that the scope of factual controversy is minimized was noticed. We are therefore of the
opinion that adverse inference from non- compliance cannot be a substitute to the enforceability of a
direction for DNA testing. The valuable right of the appellant under the said direction, to prove his
paternity through such DNA testing cannot be taken away by asking the appellant to be satisfied
with the comparatively weak 'adverse inference'.

In Punjab National Bank v. Sh. Ender Pal Singh Sahota (P&H) 2012(1) R.C.R.(Civil) 302
IMPORTANT

Leave to contest - Eviction of tenant - Court has no jurisdiction to condone the delay in filing the
application for seeking leave to contest.

A. East Punjab Urban Rent Restriction Act, 1949, Section 13-B - Eviction of tenant - NRI landlord -
Leave to defend - Application for grant of leave to defend was filed by the tenant beyond the period
of 15 days - Court has no jurisdiction to condone the delay in filing the application for seeking leave
to contest - In the instant case, application for leave to defend was filed after 7 days of expiry of the
period of 15 days as provided under the Act - Same was rightly rejected being the time barred.

[Paras 14 and 15]

B. East Punjab Urban Rent Restriction Act, 1949, Section 13-B - Eviction of tenant - NRI Landlord -
Leave to contest refused to the tenant in a petition under Section 13-B of the Act brought by NRI
landlord - Eviction of the tenant has to be ordered and is an automatic consequence.

[Para 14]

In Central Board of Secondary Education v. Aditya Bandopadhyay (SC) 2011(3) CivCC 596
IMPORTANT

Public Examination - An examinee has a right under RTI Act to inspect his evaluated answer books
and seek certified copies thereof.

A. Right to information Act, 2005, Section 3 and 8(1)(e) - Public Examination - An examinee has a
right under RTI Act to inspect his evaluated answer books and seek certified copies thereof - The
examining body does not holds the evaluated answer books in a fiduciary relationship under Section
8(1)(e) of RTI Act - Answer books do not fall under the exempted category of information described
in clause (e) of Section 8(1) of RTI Act - Meaning of term "fiduciary relationship" explained - Further
held:-

(i) Provisions of the RTI Act will prevail over the provisions of the bye- laws/rules of
the examining bodies in regard to examinations.
(ii) The right to access information does not extend beyond the period during which
the examining body is expected to retain the answer-books - In the case of CBSE, the
answer-books are required to be maintained for a period of three months and
thereafter they are liable to be disposed of destroyed. 1984(4) SCC 27, Distinguished.
[Paras 8, 14, 18, 20, 21, 23, 24, 26, 27 and 38]
B. Right to Information Act, 2005, Section 8(1)(e) - Meaning of term fiduciary relationship - The
term 'fiduciary relationship' is used to describe a situation or transaction where one person
(beneficiary) places complete confidence in another person (fiduciary) in regard to his affairs,
business or transactions - The term also refers to a person who holds a thing in trust for another
(beneficiary) - The fiduciary is expected to act in confidence and for the benefit and advantage of the
beneficiary, and use good faith and fairness in dealing with the beneficiary or the things belonging to
the beneficiary - If the beneficiary has entrusted anything to the fiduciary, to hold the thing in trust
or to execute certain acts in regard to or with reference to the entrusted thing, the fiduciary has to
act in confidence and expected not to disclose the thing or information to any third party - For
example :-

An employee who comes into possession of business or trade secrets or confidential information
relating to the employer in the course of his employment, is expected to act as a fiduciary and
cannot disclose it to others.

[Para 21]

C. Right to Information Act, 2005, Section 19(8) - Extent of power of Central and State Information
Commissions under Section 19(8) to secure compliance with provisions of RTI Act explained -
Held :-

The power under Section 19(8) of the Act is intended to be used by the Commissions to ensure
compliance with the Act, in particular ensure that every public authority maintains its records duly
catalogued and indexed in the manner and in the form which facilitates the right to information and
ensure that the records are computerized, as required under clause (a) of Section 4(1) of the Act;
and to ensure that the information enumerated in clauses (b) and (c) of Section 4(1) of the Act are
published and disseminated, and are periodically updated as provided in sub-Section (3) and (4) of
Section 4 of the Act - If the 'information' enumerated in clause (b) of Section 4(1) of the Act are
effectively disseminated (by publications in print and on websites and other effective means), apart
from providing transparency and accountability, citizens will be able to access relevant information
and avoid unnecessary applications for information under the Act.

[Para 36]

D. Right to Information Act, 2005, Section 8(1)(g) and 10 - Public examination - Examining body
getting the answer sheets evaluated from various examiners - The information as to the names or
particulars of the examiners/co-ordinators/scrutinisers/head examiners are therefore exempted from
disclosure under Section 8(1)(g) of RTI Act, on the ground that if such information is disclosed, it
may endanger their physical safety - Therefore, if the examinees are to be given access to evaluated
answer-books either by permitting inspection or by granting certified copies, such access will have to
be give only to that part of the answer-book which does not contain any information or signature of
the examiner/co-ordinators/scrutinisers/head examiners, exempted from disclosure under Section
8(1)(g) of RTI Act.

[Para 28]

E. Right to Information Act, 2005, Sections 3 and 8(3) - Public examination - An examinee has a
right under RTI Act to inspect evaluated answer books - However, the right to access information
does not extend beyond the period during which the examining body is expected to retain the
answer- books - In the case of CBSE, the answer-books are required to be maintained for a period of
three months and thereafter they are liable to be disposed of destroyed - Section 8(3) of RTI does
not require that all information be preserved.

[Paras 29 and 30]

F. Right to Information Act, Sections 4(1) and 3 - Right to Information - The RTI Act should not be
allowed to be misused or abused, to become a tool to obstruct the national development and
integration, or to destroy the peace, tranquillity and harmony among its citizens - Nor should it be
converted into a tool of oppression or intimidation of honest officials striving to do their duty - The
nation does not want a scenario where 75% of the staff of public authorities spends 75% of their
time in collecting and furnishing information to applicants instead of discharging their regular duties
- Further held :-

Indiscriminate and impractical demands or directions under RTI Act for disclosure of all the sundry
information (unrelated to transparency and accountability in the functioning of public authorities and
eradication of corruption) would be counter-productive as it will adversely affect the efficiency of the
administration and result in the executive getting bogged down with the non-productive work of
collective and furnishing information.

[Para 37]

In D. Velusamy v. D. Patchaiammal (SC) : 2011 AIR (SC) 479

IMPORTANT

A woman having live-in relationship with a man without marriage - She is not entitled to
maintenance under Protection of Women from Domestic Violence Act - To get the benefits of said
Act, she has to show that live-in relationship was in the nature of marriage.

A. Protection of Women from Domestic Violence Act, 2005, Sections 2(f), 2(s) and 20(3) - A man
and woman not married, but having live-in relationship - Woman whether entitled to maintenance
under Protection of Women from Domestic Violence Act - Held, mere live-in relationship will not
entitle to women to benefits of Act, 2005 - She has to show that though there was no marriage but
relationship was in the nature of marriage - Meaning of expression relationship in the nature of
marriage - "Relationship in the nature of marriage" must fulfill the following ingredients :-

(a) The couple must hold themselves out to society as being akin to spouses.

(b) They must be of legal age to marry.

(c) They must be otherwise qualified to enter into a legal marriage, including being unmarried.

(d) They must have voluntarily cohabited and held themselves out to the world as being akin to
spouses for a significant period of time .

(e) The parties must have lived together in a `shared household' as defined in Section 2(s) of the
Act - Merely spending weekends together or a one night stand would not make it a `domestic
relationship'.

(f) If a man has a `keep' whom he maintains financially and uses mainly for sexual purpose and/or
as a servant it would not, be a relationship in the nature of marriage.

[Paras 33 and 34]

B. Protection of Women from Domestic Violence Act, 2005, Section 2(f) - Meaning of expression
"domestic relationship" and "relationship in the nature of marriage" - The expression has not been
defined in the Act - The expression `domestic relationship' includes not only the relationship of
marriage but also a relationship `in the nature of marriage.

[Paras 20 and 21]

C. Protection of Women from Domestic Violence Act, Sections 20(3) and 12 - Criminal Procedure
Code, Section 125 - A legally wedded wife or divorced wife can claim maintenance from husband
under Section 125 CrPC - A women who was in live-in relationship with man but not legally wedded
is not entitled to claim maintenance under Section 125 CrPC - However if such a women proves that
she was in domestic relationship with the man in the nature marriage would be entitled to claim
maintenance under Section 20(3) of Protection of Domestic Violence At, 2005 - Meaning of
expression "relationship in the nature of marriage" explained.

In State of Uttaranchal v. Balwant Singh Chaufal (SC) 2010(1) JT 329

Petitioners abusing process of Court in name of Public Interest Litigation - PIL dismissed - Petitioners
to pay cost of Rs. one lakh - PIL in a matter where controversy itself was no longer res integra is
abuse of process of PIL.

A. Constitution of India, Article 165 - Constitution of India, Article 217 - Constitution of India,
Articles 226 and 21 - PIL (Public Interest Litigation) - Petitioners abusing process of Court in name of
Public Interest Litigation - PIL dismissed - Petitioners to pay cost of Rs one lakhs.

ON FACTS :-

A person appointed as Advocate General by the State Government - Appointment challenged by

Petitioners (one of whom was practicing lawyer) by filing PIL that the person was ineligible for
appointment under Article 165 read with Article 217 of Constitution of India as he was more than 62
years of age - Held, appointment not bad - The law has already been settled that Advocate General
for the State can be appointed after he/she attains the age of 62 years - Similarly, the Attorney
General for India can be appointed after he/she attains the age of 65 years - PIL dismissed and
petitioners directed to pay a cost of Rs one lakh - Held :-

1. It was expected from a Hon'ble member of the noble profession not to invoke the jurisdiction of
the Court in a matter where the controversy itself is no longer res integra.

2. It is a clear case of the abuse of process of court in the name of the Public Interest Litigation.AIR
1952 Nagpur 330 approved, 1962 Supp. (3) SCR 89 relied.
[Paras 11, 12, 15, 20, 21, 25, 193]

B. Constitution of India, Articles 32 and 226 - Constitution of India, Article 21 - Law with regard to
PIL (Public Interest Litigation) - Origin, development and importance of PIL explained - Law of
foreign countries on the subject discussed, explained and summoned up - Law was developed in
three phases which are as under:-

1. PIL deals with cases of this Court where directions and orders were passed primarily to protect
fundamental rights under Article 21 of the marginalized groups and sections of the society who
because of extreme poverty, illiteracy and ignorance cannot approach this court or the High Courts.

2. It deals with the cases relating to protection, preservation of ecology, environment, forests,
marine life, wildlife, mountains, rivers, historical monuments etc.

3. It deals with the directions issued by the Courts in maintaining the probity, transparency and
integrity in governance.

[Paras 45, 116, 117, 118]

C. Constitution of India, Articles 226 and 32 - Constitution of India, Article 21 - PIL (Public Interest
Litigation) - Importance of PIL explained - Inter alia, held :-

1. In order to preserve and protect the fundamental rights of marginalized, deprived and poor
sections of the society, the Courts relaxed the traditional rule of locus standi and broadened the
definition of aggrieved persons and gave directions and order.

2. The Supreme Court and the High Courts earned great respect and acquired great credibility in the
eyes of public because of their innovative efforts to protect and preserve the fundamental rights of
people belonging to the poor and marginalized sections of the society.

3. The credibility of the superior courts of India has been tremendously enhanced because of some
vital and important directions given by the courts - the court's contribution in helping the poorer
sections of the society by giving new definition to life and liberty and to protect ecology,
environment and forests are extremely significant.

[Paras 80 and 160]

D. Constitution of India, Article 21 - PIL - Foreign law on PIL - Evolution of PIl in other countries
namely, USA, UK, Australia, South Africa, Pakistan, Nepal and Sri Lanka explained.

[Paras 118 to 158]

E. PIL (Public Interest Litigation) - Use and abuse of PIL - PIL is being blatantly abused by filing
some petitions with oblique motives - It is time when genuine and bona fide public interest litigation
must be encouraged whereas frivolous public interest litigation should be discouraged - Exemplary
costs be imposed as a deterrent against frivolous and vexatious public interest litigations.2002 (2)
SCT 12 (SC), 2007 (2) SCT 66 (SC) relied.

[Paras 161, 162, 163 and 164]

F. Constitution of India, Articless 21, 32 and 226 - PIL (Public Interest Litigation may be confined to
legal wrongs and legal injuries for a group of people or class of persons - It should not be used for
individual wrongs because individuals can always seek redress from legal aid organizations - This is
a matter of prudence and not as a rule of law.AIR 1982 SC 149, (2003) 7 SCC 546 relied.

[Paras 57, 182 and 183]

G. Constitution of India, Articless 21, 32 and 226 - PIL (Public Interest Litigation) - Following
directions issued by Supreme Court to preserve sanctity of PIL :-

1. The courts must encourage genuine and bona fide PIL and effectively discourage and curb the PIL
filed for extraneous considerations.

2. Instead of every individual judge devising his own procedure for dealing with the public interest
litigation, it would be appropriate for each High Court to properly formulate rules for encouraging the
genuine PIL and discouraging the PIL filed with oblique motives - Consequently, we request that the
High Courts who have not yet framed the rules, should frame the rules within three months - The
Registrar General of each High Court is directed to ensure that a copy of the Rules prepared by the
High Court is sent to the Secretary General of this court immediately thereafter.

3. The courts should prima facie verify the credentials of the petitioner before entertaining a P.I.L.
4. The court should be prima facie satisfied regarding the correctness of the contents of the petition
before entertaining a PIL.

5. The court should be fully satisfied that substantial public interest is involved before entertaining
the petition.

6. The court should ensure that the petition which involves larger public interest, gravity and
urgency must be given priority over other petitions.

7. The courts before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine
public harm or public injury - The court should also ensure that there is no personal gain, private
motive or oblique motive behind filing the public interest litigation.

8. The court should also ensure that the petitions filed by busy bodies for extraneous and ulterior
motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to
curb frivolous petitions and the petitions filed for extraneous considerations.

[Para 199]

H. Constitution of India, Articles 165 and 217 - Appointments of Advocate General and Attorney
general - Advocate General for the State can be appointed after he/she attains the age of 62 years -
Similarly, the Attorney General for Indian Can be appointed after he/she attains the age of 65
years.AIR 1952 Nagpur 330 approved, 1962 Supp. (3) SCR 89 relied.

[Para 15]

I. Constitution of India, Article 21 - The precious right guaranteed by Article 21 cannot be denied to
convicts, under-trials, detenus and other prisoners in custody, except according to the procedure
established by law by placing such reasonable restrictions as are permitted by law.

[Para 45]

JUDGMENT

Dalveer Bhandari, J. - . The appointment of L. P. Nathani was challenged before the High Court in a
Public Interest Litigation on the ground that he could not hold the august Office of the Advocate
General of Uttarakhand in view of Article 165 read with Article 217 of the Constitution. According to
the respondent, Mr. Nathani was ineligible to be appointed as the Advocate General because he had
attained the age of 62 years much before he was appointed as the Advocate General. The High Court
entertained the petition and directed the State Government to take decision on the issue raised
within 15 days and apprise the same to the High Court.

8. Shri Dinesh Dwivedi, the learned senior counsel appearing for the State of Uttarakhand submitted
that, over half a century ago, in G.D. Karkare v. T.L. Shevde & Others, AIR 1952 Nagpur 330, this
controversy has been settled by the Division Bench of the Nagpur High Court and the said judgment
was approved by a Constitution Bench of this Court in the case of Atlas Cycle Industries Ltd. Sonepat
v. Their Workmen, 1962 Supp. (3) SCR 89.

To settle the controversy, we deem it appropriate to deal with different definitions of the Public
Interest Litigation in various countries. We would also examine the evolution of the public interest
litigation.

DEFINITIONS OF PUBLIC INTERST LITIGATION

27. Public Interest Litigation has been defined in the Black's Law Dictionary (6th Edition) as under :-

"Public Interest - Something in which the public, the community at large, has some
pecuniary interest, or some interest by which their legal rights or liabilities are
affected. It does not mean anything so narrow as mere curiosity, or as the interests of
the particular localities, which may be affected by the matters in question. Interest
shared by citizens generally in affairs of local, state or national government...."

28. Advanced Law Lexicon has defined `Public Interest Litigation' as under :-

"The expression `PIL' means a legal action initiated in a Court of law for the
enforcement of public interest or general interest in which the public or a class of the
community has pecuniary interest or some interest by which their legal rights or
liabilities are affected."

29. The Council for Public Interest Law set up by the Ford Foundation in USA defined "public interest
litigation" in its report of Public Interest Law, USA, 1976 as follows :
 "Public Interest Law is the name that has recently been given to efforts provide legal
representation to previously unrepresented groups and interests. Such efforts have
been undertaken in the recognition that ordinary market place for legal services fails
to provide such services to significant segments of the population and to significant
interests. Such groups and interests include the proper environmentalists, consumers,
racial and ethnic minorities and others." (M/s. Holicow Pictures Pvt. Ltd. v. Prem
Chandra Mishra & Ors., AIR 2008 SC 913, para 19).

30. This court in People's Union for Democratic Rights & Others v. Union of India & Others, (1982)3
SCC 235 defined `Public Interest Litigation' and observed that the "Public interest litigation is a
cooperative or collaborative effort by the petitioner, the State of public authority and the judiciary to
secure observance of constitutional or basic human rights, benefits and privileges upon poor,
downtrodden and vulnerable sections of the society".

ORIGIN OF PUBLIC INTEREST LITIGATION :

31. The public interest litigation is the product of realization of the constitutional obligation of the
Court.

32. All these petitions are filed under the big banner of the public interest litigation. In this view of
the matter, it has become imperative to examine what are the contours of the public interest
litigation? What is the utility and importance of the public interest litigation ? Whether similar
jurisdiction exists in other countries or this is an indigenously developed jurisprudence ? Looking to
the special conditions prevalent in our country, whether the public interest litigation should be
encouraged or discouraged by the courts ? These are some of the questions which we would
endeavour to answer in this judgment.

33. According to our opinion, the public interest litigation is an extremely important jurisdiction
exercised by the Supreme Court and the High Courts. The Courts in a number of cases have given
important directions and passed orders which have brought positive changes in the country. The
Courts' directions have immensely benefited marginalized sections of the society in a number of
cases. It has also helped in protection and preservation of ecology, environment, forests, marine life,
wildlife etc. etc. The Court's directions to some extent have helped in maintaining probity and
transparency in the public life.

34. This court while exercising its jurisdiction of judicial review realized that a very large Section of
the society because of extreme poverty, ignorance, discrimination and illiteracy had been denied
justice for time immemorial and in fact they have no access to justice. Pre-dominantly, to provide
access to justice to the poor, deprived, vulnerable, discriminated and marginalized sections of the
society, this Court has initiated, encouraged and propelled the public interest litigation. The litigation
is upshot and product of this court's deep and intense urge to fulfill its bounded duty and
constitutional obligation.

35. The High Courts followed this Court and exercised similar jurisdiction under article 226 of the
Constitution. The Courts expanded the meaning of right to life and liberty guaranteed under article
21 of the Constitution. The rule of locus standi was diluted and the traditional meaning of `aggrieved
person' was broadened to provide access to justice to a very large section of the society which was
otherwise not getting any benefit from the judicial system. We would like to term this as the first
phase or the golden era of the public interest litigation. We would briefly deal with important cases
decided by this Court in the first phase after broadening the definition of `aggrieved person'. We
would also deal with cases how this Court prevented any abuse of the public interest litigation ?

36. This Court in Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India & Others, AIR
1981 SC 298 at page 317, held that our current processual jurisprudence is not of individualistic
Anglo-Indian mould. It is broad-based and people-oriented, and envisions access to justice through
`class actions', `public interest litigation', and `representative proceedings'. Indeed, little Indians in
large numbers seeking remedies in courts through collective proceedings, instead of being driven to
an expensive plurality of litigations, is an affirmation of participative justice in our democracy. We
have no hesitation in holding that the narrow concepts of `cause of action', `person aggrieved' and
individual litigation are becoming obsolescent in some jurisdictions.

37. In Bandhua Mukti Morcha v. Union of India & Others, AIR 1984 SC 802, this court entertained a
petition even of unregistered Association espousing the cause of over down-trodden or its members
observing that the cause of "little Indians" can be espoused by any person having no interest in the
matter.

38. In the said case, this Court further held that where a public interest litigation alleging that
certain workmen are living in bondage and under inhuman conditions is initiated it is not expected of
the Government that it should raise preliminary objection that no fundamental rights of the
petitioners or the workmen on whose behalf the petition has been filed, have been infringed. On the
contrary, the Government should welcome an inquiry by the Court, so that if it is found that there
are in fact bonded labourers or even if the workers are not bonded in the strict sense of the term as
defined in the Bonded Labour System (Abolition) Act, 1976 but they are made to provide forced
labour or any consigned to a life of utter deprivation and degradation, such a situation can be set
right by the Government.

39. Public interest litigation is not in the nature of adversary litigation but it is a challenge and an
opportunity to the government and its officers to make basic human rights meaningful to the
deprived and vulnerable sections of the community and to assure them social and economic justice
which is the signature tune of our Constitution. The Government and its officers must welcome
public interest litigation because it would provide them an occasion to examine whether the poor and
the down-trodden are getting their social and economic entitlements or whether they are continuing
to remain victims of deception and exploitation at the hands of strong and powerful sections of the
community and whether social and economic justice has become a meaningful reality for them or it
has remained merely a teasing illusion and a promise of unreality, so that in case the complaint in
the public interest litigation is found to be true, they can in discharge of their constitutional
obligation root out exploitation and injustice and ensure to the weaker sections their rights and
entitlements.

40. In Fertilizer Corporation Kamagar Union (Regd., Sindri & Others v. Union of India & Others, AIR
1981 SC 844, this court observed that "public interest litigation is part of the process of participative
justice and `standing' in civil litigation of that pattern must have liberal reception at the judicial
doorsteps".

41. In Ramsharan Autyanuprasi & Another v. Union of India & Others, AIR 1989 SC 549, this court
observed that the public interest litigation is for making basic human rights meaningful to the
deprived and vulnerable sections of the community and to assure them social, economic and political
justice.

EVOLUTION OF THE PUBLIC INTEREST LITIGATION IN INDIA

42. The origin and evolution of Public Interest Litigation in India emanated from realization of
constitutional obligation by the Judiciary towards the vast sections of the society - the poor and the
marginalized sections of the society. This jurisdiction has been created and carved out by the judicial
creativity and craftsmanship. In M.C. Mehta & Another v. Union of India & Others, AIR 1987 SC
1086, this Court observed that Article 32 does not merely confer power on this Court to issue
direction, order or writ for the enforcement of fundamental rights. Instead, it also lays a
constitutional obligation on this Court to protect the fundamental rights of the people. The court
asserted that, in realization of this constitutional obligation, "it has all incidental and ancillary powers
including the power to forge new remedies and fashion new strategies designed to enforce the
fundamental rights". The Court realized that because of extreme poverty, a large number of sections
of society cannot approach the court. The fundamental rights have no meaning for them and in order
to preserve and protect the fundamental rights of the marginalized Section of society by judicial
innovation, the courts by judicial innovation and creativity started giving necessary directions and
passing orders in the public interest.

43. The development of public interest litigation has been extremely significant development in the
history of the Indian jurisprudence. The decisions of the Supreme Court in the 1970's loosened the
strict locus standi requirements to permit filing of petitions on behalf of marginalized and deprived
Sections of the society by public spirited individuals, institutions and/or bodies. The higher Courts
exercised wide powers given to them under Articles 32 and 226 of the Constitution. The sort of
remedies sought from the courts in the public interest litigation goes beyond award of remedies to
the affected individuals and groups. In suitable cases, the courts have also given guidelines and
directions. The Courts have monitored implementation of legislation and even formulated guidelines
in absence of legislation. If the cases of the decades of 70s and 80s are analyzed, most of the public
interest litigation cases which were entertained by the courts are pertaining to enforcement of
fundamental rights of marginalized and deprived sections of the society. This can be termed as the
first phase of the public interest litigation in India.

44. The Indian Supreme Court broadened the traditional rule of standing and the definition of
"person aggrieved".

45. In this judgment, we would like to deal with the origin and development of public interest
litigation. We deem it appropriate to broadly divide the public interest litigation in three phases.

Phase-I : It deals with cases of this Court where directions and orders were passed
primarily to protect fundamental rights under Article 21 of the marginalized groups
and sections of the society who because of extreme poverty, illiteracy and ignorance
cannot approach this Court or the High Courts.
Phase-II : It deals with the cases relating to protection, preservation of ecology,
environment, forests, marine life, wildlife, mountains, rivers, historical monuments
etc. etc.
Phase-III : It deals with the directions issued by the Courts in maintaining the probity,
transparency and integrity in governance.
46. Thereafter, we also propose to deal with the aspects of abuse of the Public Interest Litigation
and remedial measures by which its misuse can be prevented or curbed.

DISCUSSION OF SOME IMPORTANT CASES OF PHASE-I

47. The Court while interpreting the words "person aggrieved" in Jasbhai Motibhai Desai v. Roshan
Kumar, Haji Bashir Ahmed & Others, (1976)1 SCC 671 observed that "the traditional rule is flexible
enough to take in those cases where the applicant has been prejudicially affected by an act or
omission of an authority, even though he has no proprietary or even a fiduciary interest in the
subject-matter. That apart, in exceptional cases even a stranger or a person who was not a party to
the proceedings before the authority, but has a substantial and genuine interest in the subject-
matter of the proceedings will be covered by this rule".

48. The rule of locus standi was relaxed in Bar Council of Maharashtra v. M.V. Dabholkar & Others,
1976 SCR 306. The Court observed as under :

"Traditionally used to the adversary system, we search for individual persons

aggrieved. But a new class of litigation public interest litigation- where a section or
whole of the community is involved (such as consumers' organisations or NAACP-
National Association for Advancement of Coloured People-in America), emerges in a
developing country like ours, this pattern of public oriented litigation better fulfils the
rule of law if it is to run close to the rule of life.
xxx, xxx, xxx
"The possible apprehension that widening legal standing with a public connotation may
unloose a flood of litigation which may overwhelm the judges is misplaced because
public resort to court to suppress public mischief is a tribute to the justice system."

49. The Court in this case observed that "procedural prescriptions are handmaids, not mistresses of
justice and failure of fair play is the spirit in which Courts must view procession deviances."

50. In The Mumbai Kamgar Sabha, Bombay v. Abdulbhai Faizullabhai & Others, AIR 1976 SC 1455,
this Court made conscious efforts to improve the judicial access for the masses by relaxing the
traditional rule of locus standi.

51. In Sunil Batra v. Delhi Administration & Others, AIR 1978 SC 1675, the Court departed from the
traditional rule of standing by authorizing community litigation. The Court entertained a writ petition
from a prisoner, a disinterested party, objecting to the torture of a fellow prisoner. The Court
entertained the writ after reasoning that "these `martyr' litigations possess a beneficent potency
beyond the individual litigant and their consideration on the wider representative basis strengthens
the rule of law." Significantly, citing "people's vicarious involvement in our justice system with a
broad- based concept of locus standi so necessary in a democracy where the masses are in many
senses weak," the Court permitted a human rights organization to intervene in the case on behalf of
the victim.

52. In Hussainara Khatoon & Others v. Home Secretary, State of Bihar, Patna, AIR 1979 SC 1369,
P.N. Bhagwati, J. has observed that "today, unfortunately, in our country the poor are priced out of
the judicial system with the result that they are losing faith in the capacity of our legal system to
(sic) about changes in their life conditions and to deliver justice to them. The poor in their contact
with the legal system have always been on the wrong side of the line. They have always come
across `law for the poor" rather than law of the poor'. The law is regarded by them as something
mysterious and forbidding- always taking something away from them and not as a positive and
constructive social device for changing the social economic order and improving their life conditions
by conferring rights and benefits on them. The result is that the legal system has lost its credibility
for the weaker Section of the community.

53. In Prem Shankar Shukla v. Delhi Administration, AIR 1980 SC 1535, a prisoner sent a telegram
to a judge complaining of forced handcuff on him and demanded implicit protection against
humiliation and torture. The Court gave necessary directions by relaxing the strict rule of locus
standi.

54. In Municipal Council, Ratlam v. Vardhichand & Others, AIR 1980 SC 1622, Krishna Iyer, J.
relaxed the rule of locus standi :

"The truth is that a few profound issues of processual jurisprudence of great strategic
significance to our legal system face us and we must zero- in on them as they involve
problems of access to justice for the people beyond the blinkered rules of `standing'
of British Indian vintage. If the center of gravity of justice is to shift, as the Preamble
to the Constitution mandates, from the traditional individualism of locus standi to the
community orientation of public interest litigation, these issues must be considered.....
xxx, xxx, xxx
xxx, xxx, xxx
 Why drive common people to public interest action ? Where Directive Principles have
found statutory expression in Do's and Don'ts the court will not sit idly by and allow
municipal government to become a statutory mockery. The law will relentlessly be
enforced and the plea of poor finance will be poor alibi when people in misery cry for
justice......"

55. In Fertilizer Corporation Kamgar Union (supra) Krishna Iyer, J. and Bhagwati, J. had to answer in
affirmative as to whether the workers in a factory owned by government had locus standi to
question the legality of sale of the factory. They concluded with a quote : `Henry Peter Brougham :
Nieman Reports, April 1956 as under :

"It was the boast of Augustus that he found Rome of brick and left it of marble. But
how much nobler will be the sovereign's boast when he shall have it to say that he
found law dear and left it cheap; found it a sealed book and left it a living letter; found
it the patrimony of the rich and left it the inheritance of the poor; found it the two-
edged sword of craft and oppression and left it the staff of honesty and the shield of
innocence."

56. In People's Union for Democratic Rights & Others (supra), this Court observed as under :

"that public interest litigation which is a strategic arm of the legal aid movement and
which is intended to bring justice within the reach of the poor masses, who constitute
the low visibility area of humanity, is a totally different kind of litigation from the
ordinary traditional litigation which is essentially of an adversary character where
there is a dispute between two litigating parties, one making claim or seeking relief
against the other and that other opposing such claim or resisting such relief. Public
interest litigation is brought before the court not for the purpose of enforcing the right
of one individual against another as happens in the case of ordinary litigation, but it is
intended to promote and vindicate public interest which demands that violations of
constitutional or legal rights of large numbers of people who are poor, ignorant or in a
socially or economically disadvantaged position should not go unnoticed and un-
redressed. That would be destructive of the Rule of Law which forms one of the
essential elements of public interest in any democratic form of government. The Rule
of Law does not mean that the protection of the law must be available only to a
fortunate few or that the law should be allowed to be prostituted by the vested
interests for protecting and upholding the status quo under the guise of enforcement
of their civil and political rights. The poor too have civil and political rights and the
Rule of Law is meant for them also, though today it exists only on paper and not in
reality. If the sugar barons and the alcohol kings have the Fundamental Right to carry
on their business and to fatten their purses by exploiting the consuming public, have
the 'chamars' belonging to the lowest strata of society no Fundamental Right to earn
an honest living through their sweat and toil ? The former can approach the courts
with a formidable army of distinguished lawyers paid in four or five figures per day
and if their right of exploit is upheld against the government under the label of
Fundamental Right, the courts are praised for their boldness and courage and their
independence and fearlessness are applauded and acclaimed. But, if the Fundamental
Right of the poor and helpless victims of injustice is sought to be enforced by public
interest litigation, the so called champions of human rights frown upon it as waste of
time of the highest court in the land, which, according to them, should not engage
itself in such small and trifling matters. Moreover, these self-styled human rights
activists forget that civil and political rights, priceless and invaluable as they are for
freedom and democracy, simply do not exist for the vast masses of our people. Large
numbers of men, women and children who constitute the bulk of our population are
today living a sub-human existence in conditions of abject poverty: utter grinding
poverty has broken their back and sapped their moral fibre. They have no faith in the
existing social and economic system. What civil and political rights are these poor and
deprived sections of humanity going to enforce ?

57. Justice Bhagwati of this court in his judgment in S.P. Gupta v. President of India & Others, AIR
1982 SC 149 altogether dismissed the traditional rule of standing, and replaced it with a liberalized
modern rule. In this case, the Court awarded standing to advocates challenging the transfer of
judges during Emergency. Describing the traditional rule as an "ancient vintage" of "an era when
private law dominated the legal scene and public law had not been born," the Court concluded that
the traditional rule of standing was obsolete. In its place, the Court prescribed the modern rule on
standing :

"where a legal wrong or a legal injury is caused to a person or to a determinate class

of persons by reason of violation of any constitutional or legal right or any burden is
imposed in contravention of any constitutional or legal provision or without authority
of law or any such legal wrong or legal injury or illegal burden is threatened and such
person or determinate class of persons is by reason of poverty, helplessness or
disability or socially or economically disadvantaged position, unable to approach the
Court for relief, any member of the public can maintain an application for an
 appropriate direction, order or writ, in the High Court under Article 226, and in case of
breach of any fundamental right, in this Court under Article 32."

58. Finding that the practicing advocates "are vitally interested in the maintenance of a fearless and
an independent Judiciary," the Court granted standing to the advocates under the modern rule to
bring cases challenging the transfer of judges during Emergency. In this case, this Court further
observed as under :

"......it must now be regarded as well settled law where a person who has suffered a
legal wrong or a legal injury or whose legal right or legally protected interest is
violated, is unable to approach the Court on account of some disability or it is not
practicable for him to move the Court for some other sufficient reasons, such as his
socially or economically disadvantaged position, some other person can invoke
assistance of the Court for the purpose of providing judicial redress to the person
wronged or injured, so that the legal wrong or injury caused to such person does not
go un-redressed and justice is done to him.
xxx, xxx, xxx xxx, xxx, xxx
......Today a vast revolution is taking place in the judicial process; the theatre of the
law is fast changing and the problems of the poor are coming to the forefront. The
Court has to innovate new methods and devise new strategies for the purpose of
providing access to justice to large masses of people who are denied their basic
human rights and to whom freedom and liberty have no meaning. The only way in
which this can be done is by entertaining writ petitions and even letters from public
spirited individuals seeking judicial redress for the benefit of persons who have
suffered a legal wrong or a legal injury or whose constitutional or legal right has been
violated but who by reason of their poverty or socially or economically disadvantaged
position are unable to approach the Court for relief. It is in this spirit that the Court
has been entertaining letters for Judicial redress and treating them as writ petitions
and we hope and trust that the High Courts of the country will also adopt this pro-
active, goal-oriented approach."

59. In Anil Yadav & Others v. State of Bihar and Bachcho Lal Das, Superintendent, Central Jail,
Bhagalpur, Bihar, (1982)2 SCC 195, a petition was filed regarding blinding of under-trial prisoners at
Bhagalpur in the State of Bihar. According to the allegation, their eyes were pierced with needles
and acid poured into them. The Court had sent a team of the Registrar and Assistant Registrar to
visit the Central Jail, Bhagalpur and submit a report to the Court. The Court passed comprehensive
orders to ensure that such barbarous and inhuman acts are not repeated.

60. In Munna & Others v. State of Uttar Pradesh & Others, (1982) 1 SCC 545., the allegation was
that the juvenile under-trial prisoners have been sent in the Kanpur Central Jail instead of Children's
Home in Kanpur and those children were sexually exploited by the adult prisoners. This Court ruled
that in no case except the exceptional ones mentioned in the Act, a child can be sent to jail. The
Court further observed that the children below the age of 16 years must be detained only in the
Children's Homes or other place of safety. The Court also observed that "a Nation which is not
concerned with the welfare of the children cannot look forward to a bright future."

61. Thereafter, in a series of cases, the Court treated Post Cards and letters as writ petitions and
gave directions and orders.

62. In Sheela Barse v. State of Maharashtra, AIR 1983 SC 378., Sheela Barse, a journalist,
complained of custodial violence to women prisoners in Bombay. Her letter was treated as a writ
petition and the directions were given by the court.

63. In Dr. Upendra Baxi (I) v. State of Uttar Pradesh & Another, 1983(2) SCC 308 two distinguished
law Professors of the Delhi University addressed a letter to this court regarding inhuman conditions
which were prevalent in Agra Protective Home for Women. The court heard the petition on a number
of days and gave important directions by which the living conditions of the inmates were significantly
improved in the Agra Protective Home for Women.

64. In Veena Sethi (Mrs.) v. State of Bihar & Others, AIR 1983 SC 339, some prisoners were
detained in jail for a period ranging from 37 years to 19 years. They were arrested in connection
with certain offences and were declared insane at the time of their trial and were put in Central Jail
with directions to submit half-yearly medical reports. Some were convicted, some acquitted and
trials were pending against some of them. After they were declared sane no action for their release
was taken by the authorities. This Court ruled that the prisoners remained in jail for no fault of theirs
and because of the callous and lethargic attitude of the authorities. Even if they are proved guilty
the period they had undergone would exceed the maximum imprisonment that they might be
awarded.

65. In Labourers Working on Salal Hydro Project v. State of Jammu & Kashmir & Others, AIR 1984
SC 177, on the basis of a news item in the Indian Express regarding condition of the construction
workers, this Court took notice and observed that the construction work is a hazardous employment
and no child below the age of 14 years can therefore be allowed to be employed in construction work
by reason of the prohibition enacted in Article 24 and this constitutional prohibition must be enforced
by the Central Government.

66. In Shri Sachidanand Pandey & Another v. The State of West Bengal & Others, (1987)2 SCC 295,
in the concurring judgment, Justice Khalid, J. observed that the public interest litigation should be
encouraged when the Courts are apprised of gross violation of fundamental rights by a group or a
class action or when basic human rights are invaded or when there are complaints of such acts as
shock the judicial conscience that the courts, especially this Court, should leave aside procedural
shackles and hear such petitions and extend its jurisdiction under all available provisions for
remedying the hardships and miseries of the needy, the underdog and the neglected.

67. The case of B.R. Kapoor & Another v. Union of India & Others, AIR 1990 SC 752 relates to public
interest litigation regarding mismanagement of the hospital for mental diseases located at Shahdara,
Delhi. This Court appointed a Committee of Experts which highlighted the problems of availability of
water, existing sanitary conditions, food, kitchen, medical and nursing care, ill-treatment of patients,
attempts of inmates to commit suicide, death of patients in hospital, availability of doctors and
nurses etc. The Court went on to recommend the Union of India to take over the hospital and model
it on the lines of NIMHANS at Bangalore.

68. In Smt. Nilabati Behera alias Lalita Behera v. State of Orissa & Others, 1994(1) RCR(Criminal)
18 : AIR 1993 SC 1960, this Court gave directions that for contravention of human rights and
fundamental freedoms by the State and its agencies, a claim for monetary compensation in petition
under Article 32 of 226 is justified. In a concurring judgment, Anand, J. (as he then was) observed
as under :

"The old doctrine of only relegating the aggrieved to the remedies available in civil law
limits the role of the courts too much as protector and guarantor of the indefeasible
rights of the citizens. The courts have the obligation to satisfy the social aspirations of
the citizens because the courts and the law are for the people and expected to
respond to their aspirations."

69. In Punjab and Haryana High Court Bar Association, Chandigarh through its Secretary v. State of
Punjab & Others, 1994(1) RCR(Criminal) 205 : (1994)1 SCC 616, the allegation was that a
practicing advocate, his wife and a child aged about two years were abducted and murdered. This
Court directed the Director of the CBI to investigate and report to the Court.

70. In Navkiran Singh & Others v. State of Punjab through Chief Secretary & Another, 1995(3)
RCR(Criminal) 731 : (1995)4 SCC 591, in a letter petition the advocates from the Punjab & Haryana
High Court expressed concerned about the kidnapping/elimination of advocates in the State of
Punjab. This Court directed the CBI to investigate the matter and also directed the State of Punjab
to provide security to those advocates who genuinely apprehend danger to their lives from
militants/anti-social elements. The Court also observed that if the request for security is
recommended by the District Judge or the Registrar of the High Court, it may treated as genuine and
the State Government may consider the same sympathetically.

71. In Delhi Domestic Working Women's Forum v. Union of India & Others, 1995(1) RCR(Criminal)
194 : (1995)1 SCC 14, the Court expressed serious concern about the violence against women. The
Court gave significant directions and observed that compensation for victims shall be awarded by the
court on conviction of the offender and by the Criminal Injuries Compensation Board whether or not
a conviction has taken place. The Board will take into account pain, suffering and shock as well as
loss of earnings due to pregnancy and the expenses of child birth if this occurred as a result of the
rape.

72. In Citizens for Democracy v. State of Assam & Others, (1995)3 SCC 743, this Court held that
handcuffing and tying with ropes is inhuman and in utter violation of human rights guaranteed under
the international law and the law of the land. The Court in para 15 observed as under:

"15. ..... The handcuffing and in addition tying with ropes of the patient-prisoners who
are lodged in the hospital is, the least we can say, inhuman and in utter violation of
the human rights guaranteed to an individual under the international law and the law
of the land. We are, therefore, of the view that the action of the respondents was
wholly unjustified and against law. We direct that the detenus - in case they are still in
hospital - be relieved from the fetters and the ropes with immediate effect."

73. In Paramjit Kaur (Mrs.) v. State of Punjab & Others, 1996(1) RCR(Criminal) 282 : (1996)7 SCC
20, a telegram was sent to a Judge of this Court which was treated as a habeas corpus petition. The
allegation was that the husband of the appellant was kidnapped by some persons in police uniform
from a busy residential area of Amritsar. The Court took serious note of it and directed the
investigation of the case by the Central Bureau of Investigation.

74. In M.C. Mehta v. State of Tamil Nadu & Others, (1996)6 SCC 756, the Court was dealing with
the cases of child labour and the Court found that the child labour emanates from extreme poverty,
lack of opportunity for gainful employment and intermittency of income and low standards of living.
The Court observed that it is possible to identify child labour in the organized sector, which forms a
minuscule of the total child labour, the problem relates mainly to the unorganized sector where
utmost attention needs to be paid.

75. In D.K. Basu v. State of West Bengal, 1997(1) RCR(Criminal) 372 : (1997)1 SCC 416, this Court
observed that the custodial death is perhaps one of the worst crimes in a civilized society governed
by the rule of law. The rights inherent in Articles 21 and 22(1) of the Constitution require to be
jealously and scrupulously protected. The expression "life or personal liberty" in Article 21 includes
the right to live with human dignity and thus it would also include within itself a guarantee against
torture and assault by the State or its functionaries. The precious right guaranteed by Article 21
cannot be denied to convicts, undertrials, detenus and other prisoners in custody, except according
to the procedure established by law by placing such reasonable restrictions as are permitted by law.
The Court gave very significant directions which are mandatory for all concerned to follow.

76. In Vishaka & Others v. State of Rajasthan & Others, 1997(4) RCR(Criminal) 187 : (1997)6 SCC
241, this Court gave directions regarding enforcement of the fundamental rights of the working
women under Articles 14, 19 and 21 of the Constitution. The Court gave comprehensive guidelines
and norms and directed for protection and enforcement of these rights of the women at their
workplaces.

77. In a recently decided case Prajwala v. Union of India & Others, (2009)4 SCC 798, a petition was
filed in this Court in which it was realized that despite commencement of the Persons with
Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, disabled
people are not given preferential treatment. The Court directed the State Governments/local
authorities to allot land for various purposes indicted in section 43 of the Act and various items
indicated in section 43, preferential treatment be given to the disabled people and the land shall be
given at concessional rates. The percentage of reservation may be left to the discretion of the State
Governments. However, total percentage of disabled persons shall be taken into account while
deciding the percentage.

78. In Avinash Mehrotra v. Union of India & Others, 2009(2) SCT 395 : 2009(3) RAJ 69 : (2009)6
SCC 398, a public interest litigation was filed, when 93 children were burnt alive in a fire at a private
school in Tamil Nadu. This happened because the school did not have the minimum safety standard
measures. The court, in order to protect future tragedies in all such schools, gave directions that it is
the fundamental right of each and every child to receive education free from fear of security and
safety, hence the Government should implement National Building Code and comply with the said
orders in constructions of schools for children.

79. All these abovementioned cases demonstrate that the courts, in order to protect and preserve
the fundamental rights of citizens, while relaxing the rule of locus standi, passed a number of
directions to the concerned authorities.

80. We would not like to overburden the judgment by multiplying these cases, but brief resume of
these cases demonstrate that in order to preserve and protect the fundamental rights of
marginalized, deprived and poor sections of the society, the courts relaxed the traditional rule of
locus standi and broadened the definition of aggrieved persons and gave directions and orders. We
would like to term cases of this period where the court relaxed the rule of locus standi as the first
phase of the public interest litigation. The Supreme Court and the High Courts earned great respect
and acquired great credibility in the eyes of public because of their innovative efforts to protect and
preserve the fundamental rights of people belonging to the poor and marginalized sections of the
society.

PHASE-II - DIRECTIONS TO PRESERVE AND PROTECT ECOLOGY AND ENVIRONMENT

81. The second phase of public interest litigation started sometime in the 1980's and it related to the
courts' innovation and creativity, where directions were given to protect ecology and environment.

82. There are a number of cases where the court tried to protect forest cover, ecology and
environment and orders have been passed in that respect. As a matter of fact, the Supreme Court
has a regular Forest Bench (Green Bench) and regularly passes orders and directions regarding
various forest cover, illegal mining, destruction of marine life and wild life etc. Reference of some
cases is given just for illustration.

83. In the second phase, the Supreme Court under Article 32 and the High Court under Article 226
of the Constitution passed a number of orders and directions in this respect.

84. The recent example is the conversion of all public transport in the Metropolitan City of Delhi from
diesel engine to CNG engine on the basis of the order of the High Court of Delhi to ensure that the
pollution level is curtailed and this is being completely observed for the last several years. Only CNG
vehicles are permitted to ply on Delhi roads for public transport.
85. Louise Erdrich Bigogress, an environmentalist has aptly observed that "grass and sky are two
canvasses into which the rich details of the earth are drawn." In 1980s, this court paid special
attention to the problem of air pollution, water pollution, environmental degradation and passed a
number of directions and orders to ensure that environment ecology, wildlife should be saved,
preserved and protected. According to court, the scale of injustice occurring on the Indian soil is
catastrophic. Each day hundreds of thousands of factories are functioning without pollution control
devices. Thousands of Indians go to mines and undertake hazardous work without proper safety
protection. Everyday millions of litres of untreated raw effluents are dumped into our rivers and
millions of tons of hazardous waste are simply dumped on the earth. The environment has become
so degraded that instead of nurturing us it is poisoning us. In this scenario, in a large number of
cases, the Supreme Court intervened in the matter and issued innumerable directions.

86. We give brief resume of some of the important cases decided by this court. One of the earliest
cases brought before the Supreme Court related to oleum gas leakage in Delhi. In order to prevent
the damage being done to environment and the life and the health of the people, the court passed
number of orders. This is well-known as M.C. Mehta & Another v. Union of India & Others AIR 1987
SC 1086. The court in this case has clearly laid down that an enterprise which is engaged in a
hazardous or inherently dangerous industry which poses a potential threat to the health and safety
of the persons working in the factory and residing in the surrounding area owes an absolute and
non- delegable duty to the community to ensure that no such harm results to anyone on account of
hazardous or inherently dangerous nature of the activity which it has undertaken. The court directed
that the enterprise must adopt highest standards of safety and if any harm results on account of
such activity, the enterprise must be absolutely liable to compensate for such harm and it should be
no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred
without any negligence on its part.

87. In Rural Litigation and Entitlement Kendra, Dehradun & Others v. State of U.P. & Others, AIR
1985 SC 652 the Supreme Court ordered closure of all lime- stone quarries in the Doon Valley taking
notice of the fact that lime-stone quarries and excavation in the area had adversely affected water
springs and environmental ecology. While commenting on the closure of the lime-stone quarries, the
court stated that this would undoubtedly cause hardship to owners of the lime-stone quarries, but it
is the price that has to be paid for protecting and safeguarding the right of the people to live in
healthy environment with minimal disturbance of ecological balance and without avoidable hazard to
them and to their cattle, homes and agricultural land and undue affectation of air, water and
environment.

88. Environmental PIL has emerged because of the court's interpretation of Article 21 of the
Constitution. The court in Chhetriya Pardushan Mukti Sangharsh Samiti v. State of U.P. & Others,
AIR 1990 SC 2060 observed that every citizen has fundamental right to have the enjoyment of
quality of life and living as contemplated by Article 21 of the Constitution of India. Anything which
endangers or impairs by conduct of anybody either in violation or in derogation of laws, that quality
of life and living by the people is entitled to take recourse to Article 32 of the Constitution.

89. This court in Subhash Kumar v. State of Bihar & Others, AIR 1991 SC 420 observed that under
Article 21 of the Constitution people have the right of enjoyment of pollution free water and air for
full enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws, a
citizen has right to have recourse to Article 32 of the Constitution for removing the pollution of water
or air which may be detrimental to the quality of life.

90. The case of M.C. Mehta v. Union of India & Others, (1988)1 SCC 471, relates to pollution caused
by the trade effluents discharged by tanneries into Ganga river in Kanpur. The court called for the
report of the Committee of experts and gave directions to save the environment and ecology. It was
held that "in Common Law the Municipal Corporation can be restrained by an injunction in an action
brought by a riparian owner who has suffered on account of the pollution of the water in a river
caused by the Corporation by discharging into the river insufficiently treated sewage from
discharging such sewage into the river. But in the present case the petitioner is not a riparian owner.
He is a person interested in protecting the lives of the people who make use of the water flowing in
the river Ganga and his right to maintain the petition cannot be disputed. The nuisance caused by
the pollution of the river Ganga is a public nuisance, which is widerspread in range and
indiscriminate in its effect and it would not be reasonable to expect any particular person to take
proceedings to stop it as distinct from the community at large. The petition has been entertained as
a Public Interest Litigation. On the facts and in the circumstances of the case, the petitioner is
entitled to move the Supreme Court in order to enforce the statutory provisions which impose duties
on the municipal authorities and the Boards constituted under the Water (Prevention and Control of
Pollution) Act, 1974".

91. In Vellore Citizens Welfare Forum v. Union of India & Others, AIR 1996 SC 2715, this court ruled
that precautionary principle and the polluter pays principle are part of the environmental law of the
country. This court declared Articles 47, 48A and 51A(g) to be part of the constitutional mandate to
protect and improve the environment.

92. In M.C. Mehta v. Union of India & Others AIR 1988 SC 1037, this court observed that the
effluent discharged in river Ganga from a tannery is ten times noxious when compared with the
domestic sewage water which flows into the river from any urban area on its banks. The court
further observed that the financial capacity of the tanneries should be considered as irrelevant
without requiring them to establish primary treatment plants. Just like an industry which cannot pay
minimum wages to its workers cannot be allowed to exist, a tannery which cannot set up a primary
treatment plant cannot be permitted to continue to be in existence for the adverse effect on the
public at large.

93. In M.C. Mehta v. Union of India & Others, AIR 1997 SC 734, this court observed that in order to
preserve and protect the ancient monument Taj Mahal from sulphurdioxide emission by industries
near Taj Mahal, the court ordered 299 industries to ban the use of coke/coal. The court further
directed them to shift-over to Compressed Natural Gas (CNG) or re-locate them.

94. In A.P. Pollution Control Board v. Prof. M.V. Nayadu (Retd.) & Others, 1999(1) RCR(Civil) 570 :
(1999)2 SCC 718, this Court quoted A. Fritsch, "Environmental Ethics: Choices for Concerned
Citizens". The same is reproduced as under:

"The basic insight of ecology is that all living things exist in interrelated systems;
nothing exists in isolation. The world system in weblike; to pluck one strand is to
cause all to vibrate; whatever happens to one part has ramifications for all the rest.
Our actions are not individual but social; they reverberate throughout the whole
ecosystem". [Science Action Coalition by A. Fritsch, Environmental Ethics: Choices for
Concerned Citizens 3-4 (1980)] : (1988) Vol. 12 Harv. Env. L. Rev. at 313)."

95. The court in this case gave emphasis that the directions of the court should meet the
requirements of public interest, environmental protection, elimination of pollution and sustainable
development. While ensuring sustainable development, it must be kept in view that there is no
danger to the environment or to the ecology.

96. In Essar Oil Ltd. v. Halar Utkarsh Samiti & Others, 2004(2) RCR(Civil) 132 : AIR 2004 SC 1834 ,
while maintaining the balance between economic development and environmental protection, the
court observed as under:

"26. Certain principles were enunciated in the Stockholm Declaration giving broad
parameters and guidelines for the purposes of sustaining humanity and its
environment. Of these parameters, a few principles are extracted which are of
relevance to the present debate. Principle 2 provides that the natural resources of the
earth including the air, water, land, flora and fauna especially representative samples
of natural eco-systems must be safeguarded for the benefit of present and future
generations through careful planning and management as appropriate. In the same
vein, the 4th principle says "man has special responsibility to safeguard and wisely
manage the heritage of wild life and its habitat which are now gravely imperiled by a
combination of adverse factors. Nature conservation including wild life must,
therefore, receive importance in planning for economic developments". These two
principles highlight the need to factor in considerations of the environment while
providing for economic development. The need for economic development has been
dealt with in Principle 8 where it is said that "economic and social development is
essential for ensuring a favourable living and working environment for man and for
creating conditions on earth that are necessary for improvement of the quality of
life"."

97. On sustainable development, one of us (Bhandari, J.) in Karnataka Industrial Areas Development
Board v. Sri C. Kenchappa & Others, 2006(3) RCR(Civil) 130 : AIR 2006 SC 2038 , observed that
there has to be balance between sustainable development and environment. This Court observed
that before acquisition of lands for development, the consequence and adverse impact of
development on environment must be properly comprehended and the lands be acquired for
development that they do not gravely impair the ecology and environment; State Industrial Areas
Development Board to incorporate the condition of allotment to obtain clearance from the Karnataka
State Pollution Control Board before the land is allotted for development. The said directory
condition of allotment of lands be converted into a mandatory condition for all the projects to be
sanctioned in future.

98. In another important decision of this Court in the case of M.C. Mehta v. Kamal Nath & Others,
2000(3) RCR(Civil) 392 : (2000)6 SCC 213, this Court was of the opinion that Articles 48A and 51-
A(g) have to be considered in the light of Article 21 of the Constitution. Any disturbance of the basic
environment elements, namely air, water and soil, which are necessary for "life", would be
hazardous to "life" within the meaning of Article 21. In the matter of enforcement of rights under
Article 21, this Court, besides enforcing the provisions of the Acts referred to above, has also given
effect to Fundamental Rights under Articles 14 and 21 and has held that if those rights are violated
by disturbing the environment, it can award damages not only for the restoration of the ecological
balance, but also for the victims who have suffered due to that disturbance. In order to protect the
"life", in order to protect "environment" and in order to protect "air, water and soil" from pollution,
this Court, through its various judgments has given effect to the rights available, to the citizens and
persons alike, under Article 21.
99. The court also laid emphasis on the principle of Polluter-pays. According to the court, pollution is
a civil wrong. It is a tort committed against the community as a whole. A person, therefore, who is
guilty of causing pollution has to pay damages or compensation for restoration of the environment
and ecology.

100. In Managing Director, A.P.S.R.T.C. v. S.P. Satyanarayana, 1998(3) SCT 816 : AIR 1998 SC
2962, this Court referred to the White Paper published by the Government of India that the vehicular
pollution contributes 70% of the air pollution as compared to 20% in 1970. This Court gave
comprehensive directions to reduce the air pollution on the recommendation of an Expert Committee
of Bhure Lal appointed by this Court.

101. In Re. Noise Pollution AIR 2005 SC 3136, this Court was dealing with the issue of noise
pollution. This Court was of the opinion that there is need for creating general awareness towards
the hazardous effects of noise pollution. Particularly, in our country the people generally lack
consciousness of the ill effects which noise pollution creates and how the society including they
themselves stand to benefit by preventing generation and emission of noise pollution.

102. In Indian Council for Enviro-Legal Action v. Union of India & Others, (1996)5 SCC 281 the main
grievance in the petition is that a notification dated 19.2.1991 declaring coastal stretches as Coastal
Regulation Zones which regulates the activities in the said zones has not been implemented or
enforced. This has led to continued degradation of ecology in the said coastal areas. The court
observed that while economic development should not be allowed to take place at the cost of
ecology or by causing widespread environment destruction and violation; at the same time, the
necessity to preserve ecology and environment should not hamper economic and other
developments. Both development and environment must go hand in hand, in other words, there
should not be development at the cost of environment and vice versa, but there should be
development while taking due care and ensuring the protection of environment.

103. In S. Jagannath v. Union of India & Others, (1997)2 SCC 87, this Court dealt with a public
interest petition filed by the Gram Swaraj Movement, a voluntary organization working for the
upliftment of the weaker section of society, wherein the petitioner sought the enforcement of Coastal
Zone Regulation Notification dated 19.2.1991 and stoppage of intensive and semi- intensive type of
prawn farming in the ecologically fragile coastal areas. This Court passed significant directions as
under :

1. The Central Government shall constitute an authority conferring on the said

authority all the powers necessary to protect the ecologically fragile coastal areas,
seashore, waterfront and other coastal areas and specially to deal with the situation
created by the shrimp culture industry in coastal States.
2. The authority so constituted by the Central Government shall implement "the
Precautionary principle" and "the Polluter Pays" principles.
3. The shrimp culture industry/the shrimp ponds are covered by the prohibition
contained in para 2(i) of the CRZ Notification. No shrimp culture pond can be
constructed or set up within the coastal regulation zone as defined in the CRZ
notification. This shall be applicable to all seas, bays, estuaries, creeks rivers and
backwaters. This direction shall not apply to traditional and improved traditional types
of technologies (as defined in Alagarswami report) which are practised in the coastal
low lying areas.
4. All acquaculture industries/shrimp culture industries/shrimp culture ponds
operating/set up in the coastal regulation zone as defined under the CRZ Notification
shall be demolished and removed from the said area before March 31, 1997.
5. The agricultural lands, salt pan lands, mangroves, wet lands, forest lands, land for
village common purpose and the land meant for public purposes shall not be
used/converted for construction of the shrimp culture ponds.
6. No acquaculture industry/shrimp culture industry/shrimp culture ponds shall be
constructed/set up within 1000 meter of Chilka lake and Pulicat lake (including Bird
Sanctuaries namely Yadurapattu and Nelapattu).
7. Acquaculture industry/shrimp culture industry/shrimp culture ponds already
operating and functioning in the said area of 1000 meter shall be closed and
demolished before March 31, 1997.
8. The Court also directed that the shrimp industries functioning within 1000 meter
from the Coastal Regulation Zone shall be liable to compensate the affected persons
on the basis of the "polluter pays" principle.
9. The authority was directed to compute the compensation under two heads namely,
for reversing the ecology and for payment to individuals.
10. The compensation amount recovered from the polluters shall be deposited under a
separate head called "Environment Protection Fund" and shall be utilised for
compensating the affected persons as identified by the authority and also for restoring
the damaged environment.

104. The Court also granted substantial costs to the petitioners.

105. The courts because of vast destruction of environment, ecology, forests, marine life, wildlife
etc. etc. gave directions in a large number of cases in the larger public interest. The courts made a
serious endeavour to protect and preserve ecology, environment, forests, hills, rivers, marine life,
wildlife etc. etc. This can be called the second phase of the public interest litigation in India.

THE TRANSPARENCY AND PROBITY IN GOVERNANCE - PHASE-III OF THE PUBLIC

INTERST LITIGATION

106. In the 1990's, the Supreme Court expanded the ambit and scope of public interest litigation
further. The High Courts also under Article 226 followed the Supreme Court and passed a number of
judgments, orders or directions to unearth corruption and maintain probity and morality in the
governance of the State. The probity in governance is a sine qua non for an efficient system of
administration and for the development of the country and an important requirement for ensuring
probity in governance is the absence of corruption. This may broadly be called as the third phase of
the Public Interest Litigation. The Supreme Court and High Courts have passed significant orders.

107. The case of Vineet Narain & Others v. Union of India & Another, 1998(1) RCR(Criminal) 357 :
AIR 1998 SC 889 is an example of its kind. In that case, the petitioner, who was a journalist, filed a
public interest litigation. According to him, the prime investigating agencies like the Central Bureau
of Investigation and the Revenue authorities failed to perform their legal obligation and take
appropriate action when they found, during investigation with a terrorist, detailed accounts of vast
payments, called `Jain diaries', made to influential politicians and bureaucrats and direction was also
sought in case of a similar nature that may occur hereafter. A number of directions were issued by
the Supreme Court. The Court in that case observed that "it is trite that the holders of public offices
are entrusted with certain power to be exercised in public interest alone and, therefore, the office is
held by them in trust for the people."

108. Another significant case is Rajiv Ranjan Singh `Lalan' & Another v. Union of India & Others,
(2006)6 SCC 613. This public interest litigation relates to the large scale defalcation of public funds
and falsification of accounts involving hundreds of crores of rupees in the Department of Animal
Husbandry in the State of Bihar. It was said that the respondents had interfered with the
appointment of the public prosecutor. This court gave significant directions in this case.

109. In yet another case of M.C. Mehta v. Union of India & Others, 2007(1) RCR(Criminal) 266 :
2007(1) RAJ 99 : (2007)1 SCC 110, a project known as "Taj Heritage Corridor Project" was initiated
by the Government of Uttar Pradesh. One of the main purpose for which the same was undertaken
was to divert the River Yamuna and to reclaim 75 acres of land between Agra Fort and the Taj Mahal
and use the reclaimed land for constructing food plazas, shops and amusement activities. The Court
directed for a detailed enquiry which was carried out by the Central Bureau of Investigation (CBI).
On the basis of the CBI report, the Court directed registration of FIR and made further investigation
in the matter. The court questioned the role played by the concerned Minister for Environment,
Government of Uttar Pradesh and the Chief Minister, Government of Uttar Pradesh. By the
intervention of this Court, the said project was stalled.

110. These are some of the matters where the efficacy, ethics and morality of the governmental
authorities to perform their statutory duties was directed under the scanner of the Supreme Court
and the High Courts.

111. In M.C. Mehta v. Union of India & Others, 2007(4) RCR(Criminal) 613 : 2007(5) RAJ 524 :
(2007) 12 SCALE 91, in another public interest litigation, a question was raised before the court
whether the Apex Court should consider the correctness of the order passed by the Governor of
Uttar Pradesh refusing to grant sanction for prosecution of the Chief Minister and Environment
Minister after they were found responsible in `Taj Heritage Corridor Project". It was held that the
judiciary can step in where it finds the actions on the part of the legislature or the executive to be
illegal or unconstitutional.

112. In Centre for Public Interest Litigation v. Union of India & Another AIR 2003 SC 3277, two writ
petitions were filed in public interest by the petitioner calling in the question of decision of the
government to sell majority of shares in Hindustan Petroleum Corporation Limited and Bharat
Petroleum Corporation Limited to private parties without Parliamentary approval or sanction as being
contrary to and violative of the provisions of the ESSO (Acquisition of Undertaking in India) Act,
1974, the Burma Shell (Acquisition of Undertaking in India) Act, 1976 and Caltex (Acquisition of
Shares of Caltex Oil Refining India Limited and all the undertakings in India for Caltex India Limited)
Act, 1977. The court upheld the petitions until the statutes are amended appropriately.

113. These are some of the cases where the Supreme Court and the High Courts broadened the
scope of public interest litigation and also entertained petitions to ensure that in governance of the
State, there is transparency and no extraneous considerations are taken into consideration except
the public interest. These cases regarding probity in governance or corruption in public life dealt with
by the courts can be placed in the third phase of public interest litigation.

114. We would also like to deal with some cases where the court gave direction to the executives
and the legislature to ensure that the existing laws are fully implemented.
115. In Pareena Swarup v. Union of India, 2008(4) RCR(Criminal) 750 : 2008(6) RAJ 89 : (2008)13
SCALE 84, a member of the Bar of this court filed a public interest litigation seeking to declare
various sections of the Prevention of Money Laundering Act, 2002 as ultra vires to the Constitution
as they do not provide for independent judiciary to decide the cases but the members and
chairperson to be selected by the Selection Committee headed by the Revenue Secretary. According
to the petitioner, following the case of L. Chandrakumar v. Union of India & Others, 1997(2) SCT
423 : (1997)3 SCC 261 undermines separation of powers as envisaged by the Constitution.

116. We have endeavoured to give broad picture of the public interest litigation of Ist, IInd and IIIrd
phases decided by our courts.

117. We would briefly like to discuss evolution of the public interest litigation in other judicial
systems.

EVOLUTION OF PUBLIC INTERST LITIGATION IN OTHER JUDICIAL SYSTEMS NAMELY,

USA, U.K., AUSTRALIA AND SOUTH AFRICA.
AUSTRALIA

118. In Australia also for protecting environment, the Australian court has diluted the principle of
`aggrieved person'.

119. In Australia, Public Interest Litigation has been a method of protecting the environment. The
courts have not given a definition of `Public Interest Litigation', but in Oshlack v Richmond River
Council (1998) 193 CLR 72 : (1998) 152 ALR 83, the High Court of Australia (apex court) upheld the
concept and pointed out the essential requirements. McHugh J., quoted Stein J., from the lower
court:

"In summary I find the litigation to be properly characterised as public interest

litigation. The basis of the challenge was arguable, raising serious and significant
issues resulting in important interpretation of new provisions relating to the protection
of endangered fauna. The application concerned a publicly notorious site amidst
continuing controversy. Mr. Oshlack had nothing to gain from the litigation other than
the worthy motive of seeking to uphold environmental law and the preservation of
endangered fauna."

120. To the court it was important that the petitioner did not have any other motive than the stated
one of protecting the environment. The test therefore in Australia seems to be that the petitioner
when filing a public interest litigation, should not stand to gain in some way.

U.S.A.

121. The US Supreme Court realized the constitutional obligation of reaching to all segments of
society particularly the black Americans of African origin. The courts' craftsmanship and innovation is
reflected in one of the most celebrated path-breaking judgment of the US Supreme Court in Oliver
Brown v. Board of Education of Topeka, 347 U.S. 483, 489-493 (1954). Perhaps, it would accomplish
the constitutional obligation and goal. In this case, the courts have carried out their own
investigation and in the judgment it is observed that "Armed with our own investigation" the courts
held that all Americans including Americans of African origin can study in all public educational
institutions. This was the most significant development in the history of American judiciary.

122. The US Supreme Court dismissed the traditional rule of Standing in Association of Data
Processing Service Organizations v. William B. Camp, 397 U.S. 150 (1970). The court observed that
a plaintiff may be granted standing whenever he/she suffers an "injury in fact" - "economic or
otherwise".

123. In another celebrated case Olive B. Barrows v. Leola Jackson, 346 U.S. 249 (1953), 73 S.Ct.
1031 the court observed as under :-

"But in the instant case, we are faced with a unique situation in which it is the action
of the state court which might result in a denial of constitutional rights and in which it
would be difficult if not impossible for the persons whose rights are asserted to
present their grievance before any court. Under the peculiar circumstances of this
case, we believe the reasons which underlie our rule denying standing to raise
another's rights, which is only a rule of practice, are outweighed by the need to
protect the fundamental rights which would be denied by permitting the damages
action to be maintained."

124. In environment cases, the US Supreme Court has diluted the stance and allowed organizations
dedicated to protection of environment to fight cases even though such societies are not directly
armed by the action.
125. In United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 US 669
(1973), the court allowed a group of students to challenge the action of the railroad which would
have led to environmental loss.

126. In Paul J. Trafficante v. Metropolitan Life Insurance Company, 409 U.S. 205 (1972) the Court
held that a landlord's racially discriminatory practices towards non-whites inflicted an injury in fact
upon the plaintiffs, two tenants of an apartment complex, by depriving them of the "social benefits
of living in an integrated community."

127. Similarly, the Supreme Court of the United States has granted standing in certain situations to
a plaintiff to challenge injuries sustained by a third party with whom he/she shares a "close"
relationship.

128. In Thomas E. Singleton v. George J. L. Wulff, 428 U.S. 106 (1976), the Court granted standing
to two physicians challenging the constitutionality of a state statute limiting abortions. Similarly, in
Caplin v. Drysdale, 491 U.S. 617, 623-24 n. 3 (1989), the Court granted standing to an attorney to
challenge a drug forfeiture law that would deprive his client of the means to retain counsel.

129. The Supreme Court has also granted organizational standing. In Robert Warth v. Ira Seldin,
422 U.S. 490, 511 (1975), the Court declared that "even in the absence of injury to itself, an
association may have standing solely as the representative of its members." This judgment had far
reaching consequence. In James B. Hunt v. Washington State Apple Advertising Commission, 432
U.S. 333, 343 (1977), the Court elaborated the parameters for organizational standing where an
organization or association "has standing to bring suit on behalf of its members when: (a) its
members would otherwise have standing to sue in their own right; (b) the interests it seeks to
protect are germane to the organization's purpose; (c) neither the claim asserted, nor the relief
requested, requires the participation of individual members in the lawsuit".

ENGLAND

130. The use of PIL in England has been comparably limited. The limited development in PIL has
occurred through broadening the rules of standing.

Broad Rules of Standing.

131. In Re. Reed, Bowen & Co. (1887) 19 QBD 174 to facilitate vindication of public interest, the
English judiciary prescribed broad rules of standing. Under the traditional rule of standing, judicial
redress was only available to a `person aggrieved' - one "who has suffered a legal grievance, a man
against whom a decision has been pronounced which has wrongfully deprived him of something or
wrongfully refused him something or wrongfully affected his title to something." However, the
traditional rule no longer governs standing in the English Courts.

132. One of the most distinguished and respected English Judge Lord Denning initiated the
broadening of standing in the English Courts with his suggestion that the "words `person aggrieved'
are of wide import and should not be subjected to a restrictive interpretation." - Attorney-General of
the Gambia v. Pierre Sarr N'Jie (1961) AC 617.

133. The Blackburn Cases broadened the rule of standing in actions seeking remedy through
prerogative writs brought by individuals against public officials for breach of a private right. (e.g.,
mandamus, prohibition and certiorari). Under the Blackburn standard, "any person who was
adversely affected" by the action of a government official in making a mistaken policy decision was
eligible to be granted standing before the Court for seeking remedy through prerogative writs -
Regina v. Commissioner of Police of the Metropolis, Ex parte Blackburn [1968] 2 W.L.R. 893
("Blackburn I").

134. In Blackburn I, the Court of Appeal granted standing to Blackburn to seek a writ of mandamus
to compel the Police Commissioner to enforce a betting and gambling statute against gambling
clubs.

135. In Blackburn II, the Court of Appeal found no defects in Blackburn's standing to challenge the
Government's decision to join a common market. Blackburn v. Attorney-General [1971] 1 W.L.R.
1037).

136. In Blackburn III, the Court of Appeal granted standing to Blackburn to seek a writ of
mandamus to compel the Metropolitan Police to enforce laws against obscene publications. Regina v.
Commissioner of Police of the Metropolis, Ex parte Blackburn [1973] Q.B. 241.

137. In Blackburn IV, the Court of Appeal granted standing to Blackburn to seek a writ of prohibition
directed at the Greater London Council for failing to properly use their censorship powers with regard
to pornographic films. Regina v. Greater London Council ex parte. Blackburn [1976] 1 W.L.R. 550.
138. The English judiciary was hesitant in applying this broadened rule of standing to actions
seeking remedy through relator claims - Relator claims are remedies brought by the Attorney
General to remedy a breach of a public right. (e.g., declaration and injunction). Initially, Lord
Denning extended the broadened rule of standing in actions seeking remedy through prerogative
writs to actions seeking remedy through relator claims. In Attorney General Ex rel McWhirter v.
Independent Broadcasting Authority, (1973) Q.B. 629 the Court stipulated that, "in the last resort, if
the Attorney-General refuses leave in a proper case, or improperly or unreasonably delays in giving
leave, or his machinery works too slowly, then a member of the public who has a sufficient interest
can himself apply to the court." This rule was promptly overturned by the House of Lords in Gouriet
v. Union of Post Office Workers [1978] A.C. 435. In this case, the House of Lords held that in relator
claims, the Attorney General holds absolute discretion in deciding whether to grant leave to a case.
Thus, the English judiciary did not grant standing to an individual seeking remedy through relator
claims.

139. Finally, an amendment to the Rules of the Supreme Court in 1978 through Order 53 overcame
the English judiciary's hesitation in applying a broadened rule of standing to relator claims. Order 53
applied the broadened rule of standing to both actions seeking remedy through prerogative writs
and actions seeking remedy through relator claims. Rule 3(5) of Order 53 stipulates that the Court
shall not grant leave for judicial review "unless it considers that the applicant has a sufficient interest
in the matter to which the applicant relates." - ORDER 53, RULES OF THE SUPT. CT. (1981). In
Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses Ltd.
[1982] A.C. 617, the Court explained that "fairness and justice are tests to be applied" when
determining if a party has a sufficient interest.

140. In Regina v. Secretary of State for the Environment, Ex parte Rose Theatre Trust Co. (1990) 1
Q.B. 504, the Court elaborated that "direct financial or legal interest is not required" to find sufficient
interest. Thus, under the new rule of standing embodied in Order 53, individuals can challenge
actions of public officials if they are found to have "sufficient interest" - a flexible standard.

SOUTH AFRICA

141. The South African Constitution has adopted with a commitment to "transform the society into
one in which there will be human dignity, freedom and equality." - See : Soobramoney v. Minister of
Health, Kwazulu-Natal, 1998(1) SA 765 (CC), p. 5. Thus, improving access to justice falls squarely
within the mandate of this Constitution. In furtherance of this objective, the South African legal
framework takes a favorable stance towards PIL by prescribing broad rules of standing and relaxing
pleading requirements.

(A) Broad Rules of Standing

142. Section 38 of the Constitution broadly grants standing to approach a competent court for
allegations of infringement of a right in the bill of rights to :

"(a) anyone acting in their own interest;

(b) anyone acting on behalf of another person who cannot act in their own name;
(c) anyone acting as a member of, or in the interest of, a group or class of persons;
(d) anyone acting in the public interest;
(e) an association acting in the interest of its members."

143. In expressly permitting class actions and third-party actions, Section 38 prescribes broad rules
of standing for constitutional claims. Interpreting the language of Section 38, the Constitutional
Court elaborated in Ferreira v. Levin NO & Others, 1996(1) SA 984 (CC), p. 241 that a broad
approach to standing should be applied to constitutional claims to ensure that constitutional rights
are given the full measure of protection to which they are entitled. In the said judgment by a
separate concurring judgment, Justice O'Regan suggested that a "wider net for standing" should be
extended to all "litigation of a public character."

(B) Relaxing Formal Requirements of Pleadings

144. The Constitutional Court has been prompt to relax formal pleading requirements in appropriate
cases. In S v. Twala (South African Human Rights Commission Intervening), 2000(1) SA 879, the
President of the Court directed that a hand written letter received from a prisoner complaining about
his frustration in exercising his right to appeal be treated as an application for leave to appeal.

145. In Xinwa & Others v. Volkswagen of South Africa (PTY) Ltd., 2003(4) SA 390 (CC), p. 8 the
Court cemented the Twala principle that "form must give way to substance" in public interest
litigation. The Court explained that "pleadings prepared by lay persons must be construed
generously and in the light most favourable to the litigant. Lay litigants should not be held to the
same standard of accuracy, skill and precision in the presentation of their case required of lawyers.
In construing such pleadings, regard must be had to the purpose of the pleading as gathered not
only from the content of the pleadings but also from the context in which the pleading is prepared."
 IMPACT OF PUBLIC INTEREST LITIGATION ON NEIGHBOURING COUNTRIES

146. The development of public interest litigation in India has had an impact on the judicial systems
of neighbouring countries like Bangladesh, Sri Lanka, Nepal and Pakistan and other countries.

PAKISTAN :

147. By a recent path-breaking historical judgment of the Pakistan Supreme Court at Islamabad
dated 31st July, 2009 delivered in public interest litigation bearing Constitution Petition No. 9 of
2009 filed by Sindh High Court Bar Association through its Secretary and Constitution Petition No. 8
of 2009 filed by Nadeem Ahmed Advocate, both petitions filed against Federation of Pakistan
through Secretary, Ministry of Law and Justice, Islamabad & Others, the entire superior judiciary
which was sacked by the previous political regime has now been restored.

148. Another path breaking judgment delivered very recently on 16th December, 2009 by all the 17
judges of the Pakistan Supreme Court in Constitution Petition Nos. 76 to 80 of 2007 and 59 of 2009
and another Civil Appeal No. 1094 of 2009 also has far-reaching implications.

149. In this judgment, the National Reconciliation Ordinance (No.XV) 2007 came under challenge by
which amendments were made in the Criminal Procedure Code, 1898 and the Representation of the
People Act, 1976 and the National Accountability Ordinance of 1999. The National Accountability
Ordinance, 1999 (for short, NAO) was designed to give immunity of the consequences of the
offences committed by the constitutional authorities and other authorities in power and (NRO) was
declared void ab initio being ultra vires and violative of constitutional provisions including 4, 8, 25,
62(f), 63(i)(p), 89, 175 and 227 of the Constitution. This judgment was also delivered largely in
public interest.

150. In an important judgment delivered by the Supreme Court of Pakistan in General Secrerary,
West Pakistan Salt Miners Labour Union (CBA) Khewra, Jhelum v. The Director, Industries and
Mneral Development, Punjab, Lahore, reported in 1994 SCMR 2061 (Supreme Court of Pakistan) in
Human Right Case No. 120 of 1993 on 12th July, 1994 gave significant directions largely based on
the judgments of this court.

151. The petitioners in the said petition sought enforcement of the rights of the residents to have
clean and unpolluted water. Their apprehension was that in case the miners are allowed to continue
their activities, which are extended in the water catchment area, the watercourse, reservoir and the
pipelines would get contaminated. According to the court, water has been considered source of life in
this world. Without water there can be no life. History bears testimony that due to famine and
scarcity of water, civilization have vanished, green lands have turned into deserts and arid goes
completely destroying the life not any of human being, but animal life as well. Therefore, water,
which is necessary for existence of life, if polluted, or contaminated, will cause serious threat to
human existence.

152. The court gave significant directions including stopping the functioning of factory which created
pollution and environmental degradation.

153. Another significant aspect which has been decided in this case was to widen the definition of
the `aggrieved person'. The court observed that in public interest litigation, procedural trappings
and restrictions of being an aggrieved person and other similar technical objections cannot bar the
jurisdiction of the court. The Supreme Court also observed that the Court has vast power under
Article 183(3) to investigate into question of fact as well independently by recording evidence.

154. In another important case Ms. Shehla Zia v. WAPDA PLD, 1994 Supreme Court 693, a three-
Judge Bench headed by the Chief Justice gave significant directions. In the said petition four
residents of Street No. 35, F-6/1, Islamabad protested to WAPDA against construction of a grid
station in F-6/1, Islamabad. A letter to this effect was written to the Chairman on 15.1.1992
conveying the complaint and apprehensions of the residents of the area in respect of construction of
a grid station allegedly located in the green- belt of a residential locality. They pointed out that the
electromagnetic field by the presence of the high voltage transmission lines at the grid station would
pose a serious health hazard to the residents of the area particularly the children, the infirm and the
Dhobi-ghat families that live; the immediate vicinity. The presence of electrical installations and
transmission lines would also be highly dangerous to the citizens particularly the children who play
outside in the area. It would damage the greenbelt and affect the environment. It was also alleged
that it violates the principles of planning in Islamabad where the green belts are considered an
essential component of the city for environmental and aesthetic reasons.

155. The Supreme Court observed that where life of citizens is degraded, the quality of life is
adversely affected and health hazards created are affecting a large number of people. The Supreme
Court in exercise of its jurisdiction may grant relief to the extent of stopping the functioning of such
units that create pollution and environmental degradation.

SRI LANKA :
156. There has been great impact of Public Interest Litigation on other countries. In Bulankulama
and six others v. Secretary, Ministry of Industrial Development and seven others (Eppawala case),
the Supreme Court of Sri Lanka gave significant directions in public interest litigation. In the said
case, Mineral Investment Agreement was entered between the Government and the private
company for rapid exploitation of rock phosphate reserves at Eppawala in Sri Lanka's agriculture rich
North Central Province - High intensity mining operation plus establishment of a processing plant on
Trincomalee coast was set up which would produce phosphoric and sulphuric acid. Six residents of
the area of whose agricultural lands stood to be affected filed a petition before the court in public
interest. It was stated in the petition that the project was not for a public purpose but for the benefit
of a private company and would not bring substantial economic benefit to Sri Lanka. The petitioners
claimed imminent infringement of their fundamental rights under various provisions of the
Constitution. The court invoked the public trust theory as applied in the United States and in our
country in the case of M.C. Mehta v. Kamal Nath, (1997)1 SCC 388. The court upheld the
petitioners' fundamental rights. The respondents were restrained from entering into any contract
relating to the Eppawala phosphate deposit. The court allowed the petition and the respondents were
directed to give costs to the petitioners. The Supreme Court of Sri Lanka protected environmental
degradation by giving important directions in this case.

NEPAL :

157. A three-Judge Bench of the Supreme Court of Nepal in Surya Prasad Sharma Dhungle v.
Godawari Marble Industries in writ petition No. 35 of 1992 passed significant directions. It was
alleged in the petition that Godawari Marble Industries have been causing serious environmental
degradation to Godawari forest and its surrounding which is rich in natural grandeur and historical
and religious enshrinement are being destroyed by the respondents. In the petition it was mentioned
that the illegal activities of the respondent Godawari Marble Industries have caused a huge public
losses.

158. The Supreme Court of Nepal gave significant directions to protect degradation of environment
and ecology. The court adopted the concept of sustainable development.

159. The Indian courts may have taken some inspiration from the group or class interest litigation of
the United States of America and other countries but the shape of the public interest litigation as we
see now is predominantly indigenously developed jurisprudence.

160. The public interest litigation as developed in various facets and various branches is
unparalleled. The Indian Courts by its judicial craftsmanship, creativity and urge to provide access to
justice to the deprived, discriminated and otherwise vulnerable sections of society have touched
almost every aspect of human life while dealing with cases filed in the label of the public interest
litigation. The credibility of the superior courts of India has been tremendously enhanced because of
some vital and important directions given by the courts. The courts' contribution in helping the
poorer sections of the society by giving new definition to life and liberty and to protect ecology,
environment and forests are extremely significant.

ABUSE OF THE PUBLIC INTEREST LITIGATION :

161. Unfortunately, of late, it has been noticed that such an important jurisdiction which has been
carefully carved out, created and nurtured with great care and caution by the courts, is being
blatantly abused by filing some petitions with oblique motives. We think time has come when
genuine and bona fide public interest litigation must be encouraged whereas frivolous public interest
litigation should be discouraged.

162. In our considered opinion, we have to protect and preserve this important jurisdiction in the
larger interest of the people of this country but we must take effective steps to prevent and cure its
abuse on the basis of monetary and non- monetary directions by the courts.

163. In BALCO Employees' Union (Regd.) v. Union of India & Others, 2002(2) SCT 12 : AIR 2002 SC
350, this Court recognized that there have been, in recent times, increasing instances of abuse of
public interest litigation. Accordingly, the court has devised a number of strategies to ensure that
the attractive brand name of public interest litigation should not be allowed to be used for suspicious
products of mischief. Firstly, the Supreme Court has limited standing in PIL to individuals "acting
bonafide." Secondly, the Supreme Court has sanctioned the imposition of "exemplary costs" as a
deterrent against frivolous and vexatious public interest litigations. Thirdly, the Supreme Court has
instructed the High Courts to be more selective in entertaining the public interest litigations.

164. In S. P. Gupta's case (supra), this Court has found that this liberal standard makes it critical to
limit standing to individuals "acting bona fide. To avoid entertaining frivolous and vexatious petitions
under the guise of PIL, the Court has excluded two groups of persons from obtaining standing in PIL
petitions. First, the Supreme Court has rejected awarding standing to "meddlesome interlopers".
Second, the Court has denied standing to interveners bringing public interest litigation for personal
gain.
165. In Chhetriya Pardushan Mukti Sangharsh Samiti (supra), the Court withheld standing from the
applicant on grounds that the applicant brought the suit motivated by enmity between the parties.
Thus, the Supreme Court has attempted to create a body of jurisprudence that accords broad
enough standing to admit genuine PIL petitions, but nonetheless limits standing to thwart frivolous
and vexations petitions.

166. The Supreme Court broadly tried to curtail the frivolous public interest litigation petitions by
two methods - one monetary and second, non-monetary. The first category of cases is that where
the court on filing frivolous public interest litigation petitions, dismissed the petitions with exemplary
costs. In Neetu v. State of Punjab & Others, 2007(2) SCT 66 : AIR 2007 SC 758, the Court
concluded that it is necessary to impose exemplary costs to ensure that the message goes in the
right direction that petitions filed with oblique motive do not have the approval of the Courts.

167. In S.P. Anand v. H.D. Deve Gowda & Others, AIR 1997 SC 272., the Court warned that it is of
utmost importance that those who invoke the jurisdiction of this Court seeking a waiver of the locus
standi rule must exercise restraint in moving the Court by not plunging in areas wherein they are not
well-versed.

168. In Sanjeev Bhatnagar v. Union of India & Others, AIR 2005 SC 2841, this Court went a step
further by imposing a monetary penalty against an Advocate for filing a frivolous and vexatious PIL
petition. The Court found that the petition was devoid of public interest, and instead labelled it as
"publicity interest litigation." Thus, the Court dismissed the petition with costs of Rs. 10,000/-.

169. Similarly, in Dattaraj Nathuji Thaware v. State of Maharashtra & Others, 2005(1) RCR(Civil)
231 : (2005)1 SCC 590, the Supreme Court affirmed the High Court's monetary penalty against a
member of the Bar for filing a frivolous and vexatious PIL petition. This Court found that the petition
was nothing but a camouflage to foster personal dispute. Observing that no one should be permitted
to bring disgrace to the noble profession, the Court concluded that the imposition of the penalty of
Rs. 25,000 by the High Court was appropriate. Evidently, the Supreme Court has set clear precedent
validating the imposition of monetary penalties against frivolous and vexatious PIL petitions,
especially when filed by Advocates.

170. This Court, in the second category of cases, even passed harsher orders. In Charan Lal Sahu &
Others v. Giani Zail Singh & Another, AIR 1984 SC 309, the Supreme Court observed that, "we
would have been justified in passing a heavy order of costs against the two petitioners" for filing a
"light-hearted and indifferent" PIL petition. However, to prevent "nipping in the bud a well-founded
claim on a future occasion," the Court opted against imposing monetary costs on the petitioners." In
this case, this Court concluded that the petition was careless, meaningless, clumsy and against
public interest. Therefore, the Court ordered the Registry to initiate prosecution proceedings against
the petitioner under the Contempt of Courts Act. Additionally, the court forbade the Registry from
entertaining any future PIL petitions filed by the petitioner, who was an advocate in this case.

171. In J. Jayalalitha v. Government of Tamil Nadu & Others, (1999)1 SCC 53, this court laid down
that public interest litigation can be filed by any person challenging the misuse or improper use of
any public property including the political party in power for the reason that interest of individuals
cannot be placed above or preferred to a larger public interest.

172. This court has been quite conscious that the forum of this court should not be abused by any
one for personal gain or for any oblique motive.

173. In BALCO (supra), this court held that the jurisdiction is being abused by unscrupulous persons
for their personal gain. Therefore, the court must take care that the forum be not abused by any
person for personal gain.

174. In Dattaraj Nathuji Thaware (supra), this court expressed its anguish on misuse of the forum of
the court under the garb of public interest litigation and observed that the public interest litigation is
a weapon which has to be used with great care and circumspection and the judiciary has to be
extremely careful to see that behind the beautiful veil of public interest, an ugly private malice,
vested interest and/or publicity seeking is not lurking. It is to be used as an effective weapon in the
armoury of law for delivering social justice to the citizens. The court must not allow its process to be
abused for oblique considerations.

175. In Thaware's case (supra), the Court encouraged the imposition of a non- monetary penalty
against a PIL petition filed by a member of the bar. The Court directed the Bar Councils and Bar
Associations to ensure that no member of the Bar becomes party as petitioner or in aiding and/or
abetting files frivolous petitions carrying the attractive brand name of Public Interest Litigation. This
direction impels the Bar Councils and Bar Associations to disbar members found guilty of filing
frivolous and vexatious PIL petitions.

176. In Holicow Pictures Pvt. Ltd. v. Prem Chandra Mishra & Others AIR 2008 SC 913, this Court
observed as under :
 `It is depressing to note that on account of such trumpery proceedings initiated before
the Courts, innumerable days are wasted, the time which otherwise could have been
spent for disposal of cases of the genuine litigants. Though we spare no efforts in
fostering and developing the laudable concept of PIL and extending our long arm of
sympathy to the poor, the ignorant, the oppressed and the needy, whose fundamental
rights are infringed and violated and whose grievances go unnoticed, un-represented
and unheard; yet we cannot avoid but express our opinion that while genuine litigants
with legitimate grievances relating to civil matters involving properties worth hundreds
of millions of rupees and criminal cases in which persons sentenced to death facing
gallows under untold agony and persons sentenced to life imprisonment and kept in
incarceration for long years, persons suffering from undue delay in service matters
government or private, persons awaiting the disposal of cases wherein huge amounts
of public revenue or unauthorized collection of tax amounts are locked up, detenu
expecting their release from the detention orders etc. etc. are all standing in a long
serpentine queue for years with the fond hope of getting into the Courts and having
their grievances redressed, the busybodies, meddlesome interlopers, wayfarers or
officious interveners having absolutely no public interest except for personal gain or
private profit either of themselves or as a proxy of others or for any other extraneous
motivation or for glare of publicity break the queue muffing their faces by wearing the
mask of public interest litigation and get into the Courts by filing vexatious and
frivolous petitions and thus criminally waste the valuable time of the Courts and as a
result of which the queue standing outside the doors of the Courts never moves, which
piquant situation creates frustration in the minds of the genuine litigants and
resultantly they loose faith in the administration of our judicial system."
The Court cautioned by observing that
"Public interest litigation is a weapon which has to be used with great care and
circumspection and the judiciary has to be extremely careful to see that behind the
beautiful veil of public interest an ugly private malice, vested interest and/or publicity
seeking is not lurking. It is to be used as an effective weapon in the armory of law for
delivering social justice to the citizens. The attractive brand name of public interest
litigation should not be used for suspicious products of mischief. It should be aimed at
redressal of genuine public wrong or public injury and not publicity oriented or
founded on personal vendetta.
xxx, xxx, xxx xxx, xxx, xxx
The Court has to be satisfied about (a) the credentials of the applicant; (b) the prima
facie correctness or nature of information given by him; (c) the information being not
vague and indefinite. The information should show gravity and seriousness involved.
Court has to strike balance between two conflicting interests; (i) nobody should be
allowed to indulge in wild and reckless allegations besmirching the character of others;
and (ii) avoidance of public mischief and to avoid mischievous petitions seeking to
assail, for oblique motives, justifiable executive actions. In such case, however, the
Court cannot afford to be liberal. It has to be extremely careful to see that under the
guise of redressing a public grievance, it does not encroach upon the sphere reserved
by the Constitution to the Executive and the Legislature. The Court has to act
ruthlessly while dealing with imposters and busybodies or meddlesome interlopers
impersonating as public-spirited holy men. They masquerade as crusaders of justice.
They pretend to act in the name of Pro Bono Publico though they have no interest of
the public or even of their own to protect."

177. The malice of frivolous and vexatious petitions did not originate in India. The jurisprudence
developed by the Indian judiciary regarding the imposition of exemplary costs upon frivolous and
vexatious PIL petitions is consistent with jurisprudence developed in other countries. U.S. Federal
Courts and Canadian Courts have also imposed monetary penalties upon public interest claims
regarded as frivolous. The courts also imposed non-monetary penalties upon Advocates for filing
frivolous claims. In Everywoman's Health Centre Society v. Bridges, 54 B.C.L.R. (2nd Edn.) 294, the
British Columbia Court of Appeal granted special costs against the Appellants for bringing a meritless
appeal.

178. U.S. Federal Courts too have imposed monetary penalties against plaintiffs for bringing
frivolous public interest claims. Rule 11 of the Federal Rules of Civil Procedure ("FRCP") permits
Courts to apply an "appropriate sanction" on any party for filing frivolous claims. Federal Courts have
relied on this rule to impose monetary penalties upon frivolous public interest claims. For example,
in Harris v. Marsh, 679 F.Supp. 1204 (E.D.N.C. 1987), the District Court for the Eastern District of
North Carolina imposed a monetary sanction upon two civil rights plaintiffs for bringing a frivolous,
vexatious, and meritless employment discrimination claim. The Court explained that "the
increasingly crowded dockets of the federal courts cannot accept or tolerate the heavy burden posed
by factually baseless and claims that drain judicial resources." As a deterrent against such wasteful
claims, the Court levied a cost of $83,913.62 upon two individual civil rights plaintiffs and their legal
counsel for abusing the judicial process. Case law in Canadian Courts and U.S. Federal Courts
exhibits that the imposition of monetary penalties upon frivolous public interest claims is not unique
to Indian jurisprudence.

179. Additionally, U.S. Federal Courts have imposed non- monetary penalties upon Attorneys for
bringing frivolous claims. Federal rules and case law leave the door open for such non-monetary
penalties to be applied equally in private claims and public interest claims. Rule 11 of the FRCP
additionally permits Courts to apply an "appropriate sanction" on Attorneys for filing frivolous claims
on behalf of their clients. U.S. Federal Courts have imposed non- monetary sanctions upon Attorneys
for bringing frivolous claims under Rule 11.

180. In Frye v. Pena 199 F.3d 1332 (Table), 1999 WL 974170, for example, the United States Court
of Appeals for the Ninth Circuit affirmed the District Court's order to disbar an Attorney for having
"brought and pressed frivolous claims, made personal attacks on various government officials in bad
faith and for the purpose of harassment, and demonstrated a lack of candor to, and contempt for,
the court." This judicial stance endorses the ethical obligation embodied in Rule 3.1 of the Model
Rules of Professional Conduct ("MRPC"): "a lawyer shall not bring or defend a proceeding, or assert
or controvert an issue therein, unless there is a basis in law and fact for doing so that is not
frivolous." Together, the FRCP, U.S. federal case law, and the MRPC endorse the imposition of non-
monetary penalties upon attorneys for bringing frivolous private claims or public interest claims.

181. In Bar Council of Maharashtra (supra) this court was apprehensive that by widening the legal
standing there may be flood of litigation but loosening the definition is also essential in the larger
public interest. To arrest the mischief is the obligation and tribute to the judicial system.

182. In SP Gupta (supra) the court cautioned that important jurisdiction of public interest litigation
may be confined to legal wrongs and legal injuries for a group of people or class of persons. It
should not be used for individual wrongs because individuals can always seek redress from legal aid
organizations. This is a matter of prudence and not as a rule of law.

183. In Chhetriya Pardushan Mukti Sangharsh Samiti (supra) this court again emphasized that
Article 32 is a great and salutary safeguard for preservation of fundamental rights of the citizens.
The superior courts have to ensure that this weapon under Article 32 should not be misused or
abused by any individual or organization.

184. In Janata Dal v. H.S. Chowdhary & Others, (1992)4 SCC 305, the court rightly cautioned that
expanded role of courts in modern `social' state demand for greater judicial responsibility. The PIL
has given new hope of justice- starved millions of people of this country. The court must encourage
genuine PIL and discard PIL filed with oblique motives.

185. In Guruvayur Devaswom Managing Committee & Another v. C.K. Rajan & Others, (2003)7 SCC
546, it was reiterated that the court must ensure that its process is not abused and in order to
prevent abuse of the process, the court would be justified in insisting on furnishing of security before
granting injunction in appropriate cases. The courts may impose heavy costs to ensure that judicial
process is not misused.

186. In Dattaraj Nathuji Thaware (supra) this court again cautioned and observed that the court
must look into the petition carefully and ensure that there is genuine public interest involved in the
case before invoking its jurisdiction. The court should be careful that its jurisdiction is not abused by
a person or a body of persons to further his or their personal causes or to satisfy his or their
personal grudge or grudges. The stream of justice should not be allowed to be polluted by
unscrupulous litigants.

187. In Neetu (supra) this court observed that under the guise of redressing a public grievance the
public interest litigation should not encroach upon the sphere reserved by the Constitution to the
Executive and the Legislature.

188. In M/s. Holicow Pictures Pvt. Ltd. (supra) this court observed that the judges who exercise the
jurisdiction should be extremely careful to see that behind the beautiful veil of PIL, an ugly private
malice, vested interest and/or publicity-seeking is not lurking. The court should ensure that there is
no abuse of the process of the court.

189. When we revert to the facts of the present then the conclusion is obvious that this case is a
classic case of the abuse of the process of the court. In the present case a practicing lawyer has
deliberately abused the process of the court. In that process, he has made a serious attempt to
demean an important constitutional office. The petitioner ought to have known that the controversy
which he has been raising in the petition stands concluded half a century ago and by a Division
Bench judgment of Nagpur High Court in the case of Karkare (supra) the said case was approved by
a Constitution Bench of this court. The controversy involved in this case is no longer res integra. It is
unfortunate that even after such a clear enunciation of the legal position, a large number of similar
petitions have been filed from time to time in various High Courts. The petitioner ought to have
refrained from filing such a frivolous petition.

190. A degree of precision and purity in presentation is a sine qua non for a petition filed by a
member of the Bar under the label of public interest litigation. It is expected from a member of the
Bar to at least carry out the basic research whether the point raised by him is res integra or not. The
lawyer who files such a petition cannot plead ignorance.
198. In order to preserve the purity and sanctity of the PIL, it has become imperative to issue the
following directions :-

(1) The courts must encourage genuine and bona fide PIL and effectively discourage
and curb the PIL filed for extraneous considerations.
(2) Instead of every individual judge devising his own procedure for dealing with the
public interest litigation, it would be appropriate for each High Court to properly
formulate rules for encouraging the genuine PIL and discouraging the PIL filed with
oblique motives. Consequently, we request that the High Courts who have not yet
framed the rules, should frame the rules within three months. The Registrar General
of each High Court is directed to ensure that a copy of the Rules prepared by the High
Court is sent to the Secretary General of this court immediately thereafter.
(3) The courts should prima facie verify the credentials of the petitioner before
entertaining a P.I.L.
(4) The court should be prima facie satisfied regarding the correctness of the contents
of the petition before entertaining a PIL.
(5) The court should be fully satisfied that substantial public interest is involved before
entertaining the petition.
(6) The court should ensure that the petition which involves larger public interest,
gravity and urgency must be given priority over other petitions.
(7) The courts before entertaining the PIL should ensure that the PIL is aimed at
redressal of genuine public harm or public injury. The court should also ensure that
there is no personal gain, private motive or oblique motive behind filing the public
interest litigation.
(8) The court should also ensure that the petitions filed by busybodies for extraneous
and ulterior motives must be discouraged by imposing exemplary costs or by adopting
similar novel methods to curb frivolous petitions and the petitions filed for extraneous
considerations.
In Dayal Sarup v. Om Parkash (P&H) (F.B.) 2010(4) PLR 1
PUNJAB AND HARYANA HIGH COURT(F.B.)
IMPORTANT

Second appeal - Substantial question of law not stated his memorandum of second appeal - Appeal
cannot be rejected - High Court, should framed question of law where High Court is satisfied that a
substantial question of law is involved.

A. Civil Procedure Code, Section 100 - Civil Procedure Code, Order 41 Rule 2 - Second appeal -
Substantial question of law not stated his memorandum of second appeal - Appeal cannot be
rejected - High Court, should frame a question of law where High Court is satisfied that a substantial
question of law is involved - Further held :-

1. Non-stating of substantial questions of law in the memorandum of appeal is merely a procedural

irregularity which can be cured and rectified, but should not result in dismissal of appeal and that an
application under Rule 2 of Order 41 of the CPC for amendment of memorandum of appeal can be
moved at any time and merely because of the fact that it has been moved belatedly should not
result in denial of hearing of appeal on merits. (2000) 9 SCC 29 relied. The following cases overruled
:

B. Civil Procedure Code, Sections 96 and 100 - Civil Procedure Code, Order 41 Rule 2 - Appeal
against an order - Non- compliance of any procedural requirement should not entail automatic
dismissal or rejection of an appeal the relevant statute or rule so mandates and a hyper-technical
view should not be taken to deny the substantial right of an appeal. 1992 Supp.(2) SCC 473 relied.

C. Punjab and Haryana High Court Rules & Orders, Volume Rule 10, Chapter 14 Part-B - Civil
Procedure Code, Order 41 Rule 2 and 12 - Second Appeal - Amendment of Memorandum of second
appeal's - Chapter 14 deals with first appeals as well as governs the filing of Regular Second Appeals
- A simple application with notice to the opposite side for formulating substantial questions of law
would suffice and the appellant need not go through the rigours of amending his grounds of appeal.

In Balbir Kaur v. Roop Lal (P&H) 2010(4) PLR 215 IMPORTANT

Landlords already having huge business - Seeking eviction of tenant from their building to expand
business - It landlord asserts that he requires the tenanted premises to expand his business, his
need must be presumed as bonafide.

A. East Punjab Urban Rent Restriction Act, 1949, Sections 13(3)(a)(i) - Landlords reputed big
businessmen having business in various countries - Seeking eviction of tenant from ground floor of
shop-cum-office at Chandigarh to start a big departmental store of world repute for which landlords
had the financial capacity - Held, need was bonafide - Further held, it is the prerogative of the
landlord to expand his business - If landlord asserts that he requires the tenanted premises to
expand his business, his need must be presumed as bonafide - Rent Controller shall not proceed to
presume that alleged need is not bonafide - It is not open to the Rent Controller to say that
landlords are already having business in different countries and cities and are well settled in their
lives, hence do not require demised premises for setting up Departmental Store of world repute in
Chandigarh. 1998(2) RCR (Rent) 533, relied.

B. East Punjab Urban Rent Restriction Act, 1949, Section 13(3)(a)(i) - bonafide requirement -
Landlords owner a building having six floors - Landlords in possession of small portion of building -
Landlords reputed big businessman - If the landlords want to open big Departmental Store in all the
six floors of the buildings, tenant or Rent Controller have no business to dictate that landlords should
start business in a smaller portion of building which was in their occupation - Further held :-

Every landlord - human being has every right to expand business or to open new ventures.

C. East Punjab Urban Rent Restriction Act, 1949, Section 13(3)(a)(i) - Landlords big businessmen
and having business in various countries including India - Seeking eviction of tenant from their
building to start a big departmental store - Court has no jurisdiction to say that since the landlords
are well-established and carrying on the business in different countries, they do not need to open
the Departmental Store in India.

D. East Punjab Urban Rent Restriction Act, 1949, Section ...... - Letting of premises to tenant which
was a Company - Agreement provided landlords shall remain in physical and legal possession of the
property and the agreement will not create any right, title, interest, trust or tenancy in respect of
the premises in favour of the company - It does not amount to lease - To establish lease, possession
has to be transferred in favour of the lessee, which admittedly is not done - Admittedly, possession
in with the landlords.

E. East Punjab Urban Rent Restriction Act, Section 15 - Revisional power of High Court - Eviction
petition on ground of bonafide requirement dismissed by Courts below - Revision before High Court -
It was contended that High Court had no power to disturb concurrent finding of fact of bonafide need
as recorded by both the Courts below - Contention repelled - Held:-

(i) Undoubtedly it was a well settled proposition but this rule will apply only where the
finding have been rendered with reference to facts and not on the basis of non-
existent material and baseless assumption.
(ii) If findings have been rendered either on non-existent or fictitious material, they
cannot be therefore construed as findings of fact and once they cease to be findings of
fact, they stand denuded of their binding force on the appellate or revisional Court.
1987(2) RCR (Rent) 156 : AIR 1967 SC 1653, relied.

F. East Punjab Urban Rent Restriction Act, Section 13(3) - bonafide requirement - Landlord ejecting
tenant on ground of bonafide requirement - Under Section 13(4) if landlord or his family for whose
benefit eviction was obtained, fails to occupy the premises for a continuous period of 12 months
from the date of obtaining possession or where he puts that building to any use or lets it out to any
tenant other than the tenant evicted from it, the tenant who has been evicted may apply to the
Controller for an order and direction that he shall be restored to possession of such building.

G. East Punjab Urban Rent Restriction Act, Section 13(3)(a)(i) - bonafide requirement - Landlord
reputed big businessmen required tenanted premises to expand business - Held :-

Every landlord human being has every right to expand business or to open new ventures.

In Satwant Kaur v. Narinder Singh (P&H) : Law Finder Doc Id # 224376

2011(1) R.C.R.(Civil) 214 : 2010(2) R.C.R.(Rent) 651

Lease deed stipulated monthly Rent are Rs. 600/- with 5% increase every year if tenant continued -
Such a lease deed amounts to grant of lease for more than a year which required compulsory
registration - Cannot be read in evidence without registration.

Registration Act, 1908, Sections 49 and 17 - East Punjab Urban Rent Restriction Act, 1949, Section
13 - Transfer of Property Act, 1882, Section 107 - Lease deed stipulated monthly Rent at Rs 600/-
with 5% increase every year if tenant continued - Such a lease deed amounts to grant of lease for
more than a year which required compulsory registration - Cannot be read in evidence without
registration.

ON FACTS :

Tenant paying rent at the rate of Rs. 400/- p.m. - Thereafter a rent- deed executed wherein monthly
rent enhanced to Rs. 6000/- p.m. with further stipulation of 5% increase every year - Held, it was
rent deed exceeding one year which required registration, but not registered - Contention of tenant
that he never agreed for enhancement - Landlord not entitled to recover rent at enhanced rates -
Rent deed cannot be read in evidence.
Amarinder Singh v. Special Committee Punjab Vidhan Sabha (SC) : Law Finder Doc Id # 226289

2010(4) JT 350

A. Constitution of India, 1950, Articles 194(3), 190, 191 and 105(3) - Exercise of - Legislative
privilege - Misconduct on the part of former Chief Minister of State of Punjab and other Ministers in
granting exemption from acquisition of part of land, notified for development scheme on the basis of
report of special Committee - Vidhan Sabha adopted resolution for expelling the said Chief Minister,
who had been an elected member of Vidhan Sabha - Scope and extent of such powers and privileges
- Held that using route of Legislative privilege to expel the sitting member for an alleged misconduct
is beyond the legitimate exercise of privilege power of the House.

B. Constitution of India, Articles 194(3), 190, 191 and 105(3) - Exercise of - Legislative privileges -
Expelling a member of Vidhan Sabha - Held that with respect to the allegations, it cannot be said
that there was obstruction to the conduct of legislative business - Therefore, the expulsion through
the resolution was not justified as a proper exercise of "powers, privileges and Immunties".

C. Constitution of India, Articles 194(1), 190, 191 and 105(3) - Breach of - Legislative privilege -
Exercise of powers of House to deal with the alleged misconduct of former Chief Minister in granting
exemption from acquisition of part of land, already notified for development scheme - Incident taken
up by new Vidhan Sabha, of which he was an elected member - Held that it was quite untenable for
the Legislature to exercise the legislative privilege to punish past executive acts, specially when
there was no pending motion, report or any other order of business.

D. Constitution of India, Articles 194(3), 190, 191 and 105(3) - Rules of Business of Conduct of
Punjab Vidhan Sabha - Exercise of - Legislative privilege - Alleged misconduct by former Chief
Minister in allowing exemption from acquisition of part of land, already notified for development -
Exemption challenged by various persons in the High Court - New Vidhan Sabha appointed special
Committee and on it's report, passed resolution to expel the member and also directed custodial
investigation and lodging of F.I.R. - His seat, on which he had been elected as a fresh member, also
declared to be vacant - High Court did not stay the operation of impugned resolution - Supreme
Court directed the seat not to be treated vacant till adjudication - Investigation permitted but not
custodial investigation - Held that under the Vidhan Sabha Rules of Business and Conduct, no sub-
judice matter could be touched by Vidhan Sabha and it ought not to have constituted the Committee
- Resolution for expulsion declared invalid - Appeal and the connected petitions disposed of
accordingly.

11. In light of the facts of this case and the contentions outlined above, the following questions arise
for consideration:

I. Whether the alleged misconduct on part of the appellant and the petitioners
warranted the exercise of legislative privileges under Article 194(3) of the
Constitution?
II. Whether it was proper for the Punjab Vidhan Sabha to take up, as a matter of
breach of privilege, an incident that occurred during its previous term?
III. Whether the impugned acts of the Punjab Vidhan Sabha violated the norms that
should be respected in relation to sub judice matters?
28. At this juncture, we must reiterate the principles which guide judicial scrutiny of the exercise of
legislative privileges (including the power to punish for contempt of the House). In Raja Ram Pal's
case, Y.K. Sabharwal, C.J. had framed the following guidelines, at Para. 431:

"431. Summary of the Principles relating to Parameters of Judicial Review in relation

to exercise of Parliamentary Provisions
We may summarize the principles that can be culled out from the above discussion.
They are:
a. Parliament is a co-ordinate organ and its views do deserve deference even while its
acts are amenable to judicial scrutiny;
b. Constitutional system of government abhors absolutism and it being the cardinal
principle of our Constitution that no one, howsoever lofty, can claim to be the sole
judge of the power given under the Constitution, mere co-ordinate constitutional
status, or even the status of an exalted constitutional aries, does not disentitle this
Court from exercising its jurisdiction of judicial review of action which part-take the
character of judicial or quasi-judicial decision;
c. The expediency and necessity of exercise of power or privilege by the legislature are
for the determination of the legislative authority and not for determination by the
courts;
d. The judicial review of the manner of exercise of power of contempt or privilege does
not mean the said jurisdiction is being usurped by the judicature;
e. Having regard to the importance of the s discharged by the legislature under the
Constitution and the majesty and grandeur of its task, there would always be an initial
presumption that the powers, privileges etc have been regularly and reasonably
exercised, not violating the law or the Constitutional provisions, this presumption
being a rebuttable one;
f. The fact that Parliament is an august body of co-ordinate constitutional position
does not mean that there can be no judicially manageable standards to review
exercise of its power;
g. While the area of powers, privileges and immunities of the legislature being
exceptional and extraordinary its acts, particularly relating to exercise thereof, ought
not to be tested on the traditional parameters of judicial review in the same manner
as an ordinary administrative action would be tested, and the Court would confine
itself to the acknowledged parameters of judicial review and within the judicially
discoverable and manageable standards, there is no foundation to the plea that a
legislative body cannot be attributed jurisdictional error;
h. The Judicature is not prevented from scrutinizing the validity of the action of the
legislature trespassing on the fundamental rights conferred on the citizens;
i. The broad contention that the exercise of privileges by legislatures cannot be
decided against the touchstone of fundamental rights or the constitutional provisions
is not correct;
j. If a citizen, whether a non-member or a member of the Legislature, complains that
his fundamental rights under Article 20 or 21 had been contravened, it is the duty of
this Court to examine the merits of the said contention, especially when the impugned
action entails civil consequences;
k. There is no basis to claim of bar of exclusive cognizance or absolute immunity to
the Parliamentary proceedings in Article 105(3) of the Constitution;
l. The manner of enforcement of privilege by the legislature can result in judicial
scrutiny, though subject to the restrictions contained in the other Constitutional
provisions, for example Article 122 or 212;
m. Articles 122(1) and Article 212(1) displace the broad doctrine of exclusive
cognizance of the legislature in England of exclusive cognizance of internal
proceedings of the House rendering irrelevant the case law that emanated from courts
in that jurisdiction; inasmuch as the same has no application to the system of
governance provided by Constitution of India.
n. Article 122(1) and Article 212(1) prohibit the validity of any proceedings in
legislature from being called in question in a court merely on the ground of irregularity
of procedure;
o. The truth or correctness of the material will not be questioned by the court nor will
it go into the adequacy of the material or substitute its opinion for that of the
legislature;
p. Ordinarily, the legislature, as a body, cannot be accused of having acted for an
extraneous purpose or being actuated by caprice or mala fide intention, and the court
will not lightly presume abuse or misuse, giving allowance for the fact that the
legislature is the best judge of such matters, but if in a given case, the allegations to
such effect are made, the Court may examine the validity of the said contention, the
onus on the person alleging being extremely heavy.
q. The rules which the legislature has to make for regulating its procedure and the
conduct of its business have to be subject to the provisions of the Constitution;
r. Mere availability of the Rules of Procedure and Conduct of Business, as made by the
legislature in exercise of enabling powers under the Constitution, is never a guarantee
that they have been duly followed;
s. The proceedings which may be tainted on account of substantive or gross illegality
or unconstitutionality are not protected from judicial scrutiny;
 t. Even if some of the material on which the action is taken is found to be irrelevant,
the court would still not interfere so long as there is some relevant material sustaining
the action;
u. An ouster clause attaching finality to a determination does ordinarily oust the power
of the court to review the decision but not on grounds of lack of jurisdiction or it being
a nullity for some reason such as gross illegality, irrationality, violation of
constitutional mandate, mala fides, non- compliance with rules of natural justice and
perversity;"

Accordingly, we are of the view that the power of a legislative chamber to punish for its own
contempt should broadly coincide with the legislature's interest in protecting the integrity of its s.
There can of course be some exceptional circumstances where acts that take place outside the `four
walls of the house' could have the effect of distorting, obstructing or diluting the integrity of
legislative s. An obvious example is that of legislators accepting bribes in lieu of asking questions or
voting on the floor of the House. However, with respect to the facts before us, the respondents have
failed to demonstrate how the alleged misconduct on part of the appellant and the petitioners could
have a comparable effect. Using the route of legislative privileges to recommend the appellant's
expulsion in the present case is beyond the legitimate exercise of the privilege power of the House.

While the legislature is free to inquire into acts and events that have taken place in the past, the
same is ordinarily done in the nature of fact- finding to improve the quality of law-making.
Legislative oversight over executive actions is an important facet of parliamentary democracy and
such oversight can extend to executive decisions taken in the past. However, it is altogether another
matter if privileges are purportedly exercised to punish those who have held executive office in the
past. It is quite inconceivable as to how the allegedly improper exemption of land (notified on 13-1-
2006) had the effect of obstructing the legislative business in the 13th term of the Punjab Vidhan
Sabha. Hence, it is our considered view in respect of the facts in the present case, that it was
improper for the 13th Punjab Vidhan Sabha to claim a breach of privileges on account of the alleged
misconduct which actually took place during the 12th term of the Vidhan Sabha. However, our view
should not be mistaken for a general proposition since it is within our imagination that in some
circumstances the acts that have taken place during the previous terms of a Legislature could
actually have the effect of distorting, obstructing or diluting the integrity of legislative business in
the present term. Evidently, no such consequence or tendency has been demonstrated in the
present case.

It is a settled principle that ordinarily the content of legislative proceedings should not touch on sub
judice matters. As indicated in the extract quoted above, the rationale for this norm is that
legislative debate or scrutiny over matters pending for adjudication could unduly prejudice the rights
of the litigants. In the case at hand, the allegedly improper exemption of land (measuring 32.10
acres) from the Amritsar Improvement Scheme had already been questioned before the High Court
of Punjab and Haryana. Thus, the Punjab Vidhan Sabha ought not to have constituted a committee
to inquire into the same.

CONCLUSION

55. In the light of the preceding discussion we have arrived at the following conclusions:

(i) If there were any irregularities committed by the appellant and the petitioners in
relation to the exemption of land (notified on 13-1-2006) from the Amritsar
Improvement Scheme, the proper course of action on part of the State Government
should have been to move the criminal law machinery with the filing of a complaint
followed by investigation as contemplated under the Code of Criminal Procedure. It is
our considered view that the Punjab Vidhan Sabha exceeded its powers by expelling
the appellant on the ground of a breach of privilege when there existed none. The
allegedly improper exemption of land was an executive act attributable to the
appellant and it did not distort, obstruct or threaten the integrity of legislative
proceedings in any manner. Hence, the exercise of legislative privileges under Article
194(3) of the Constitution was not proper in the present case.
(ii) Furt bnhermore, the allegedly improper exemption of land took place during the
12th term of the Punjab Vidhan Sabha, whereas the constitution of the Special
Committee to inquire into the same took place during the 13th term. It was not proper
for the Assembly to inquire into actions that took place during its previous term,
especially when there was no relatable business that had lapsed from the previous
term. If we were to permit the legislature to exercise privileges for acting against
members for their executive acts during previous terms, the Courts are likely to be
flooded with cases involving political rivalries. One can conceive that whenever there
is a change of regime, the fresh incumbents would readily fall back on the device of
legislative privileges to expel their political opponents as well as dissidents. Such a
scenario would frustrate some of the basic objectives of a parliamentary democracy.
(iii) When it was well known that the allegedly improper exemption of land from the
Amritsar Improvement Scheme was the subject-matter of proceedings instituted
before the High Court of Punjab and Haryana, the Punjab Vidhan Sabha should have
refrained from dealing with the same subject-matter.
In Superintendence Company of India (P) Ltd. v. Krishna Murgai,

1980 AIR (SC) 1717

A. Contract Act, 1872, Section 27 - Specific Relief Act, 1963, Section 57 - Service contracts
- Agreement in restraint of trade - Post service negative covenent - Enforceability - Word
"leave" means in relation to an employed will normally be construed as meaning
voluntarily leaving of the service by him and will not include a case where he is
discharged or dismissed or his services are terminated by his employer - Ordinarily the
word "leave" appears to connote voluntary action.

[Paras 10 and 57]

B. Contract Act, Section 27 - Interpretation of Statutes - Law relating to contracts -

Importing of principles of English Law - Permissibility - English doctrine of restraint of
trade - Not permissible is import the principles of English law dehors the statutory
provision - Applicability.

[Para 25]

C. Contract Act, 1872, Sections 27, 10 - Agreement in restraint of trade - Held that the
construction is to be taken according to the ordinary rules of constructive and what the
fair meaning is.

Percept D'Markr (India) Pvt. Ltd. v. Zaheer Khan, 2006 AIR (SC) 3426

A. Contract Act, 1872, Section 27 - Arbitration and Conciliation Act, 1996, Section 9 -
Constitution of India, Article 19(1)(g) - Agreement - Contract of employment - Restraint
of trade - Promotion agreement - Clause in agreement that if the player wants to make
agreement with third party, terms thereof would be first offered to the Agency - Term of
the said agreement was for a period of three years - It cannot be enforced after expiry of
period of agreement.

[Paras 48 to 51, 55, 63 and 64]

B. Contract Act, 1872, Section 27 - Void contract - Doctrine of - Restraint of trade - A

restrictive covenant extending beyond the term of the contract is void and not enforceable
- This doctrine is not confined only to contracts of employment, but is also applicable to all
other contracts.

2. The central issue of importance in this appeal is whether the right of first refusal under clause
31(b) of the permission agreement entered into between the appellant - Percept D. Markr (India)
Pvt. Ltd. and the respondent No. 1 - Zaheer Khan is void under Section 27 of the Contract Act, 1872
has been in restraint of trade.

3. It was submitted by learned senior counsel for the appellant - Mr. Ashok H. Desai that the
provision such as the right of first refusal is merely regulatory and not in restraint of trade.

FACTS:

4. The appellant is a company incorporated under the Companies Act, 1956 and carries on business,
inter alia, of event management, model and celebrity endorsement and management, charity
events/social marketing, all entertainment related activities, sports management and marketing,
internet marketing, broadband publicity and radio marketing.

5. Respondent No. 1 - Zaheer Khan is an Indian citizen and a cricketer of international repute. He
had entered into an agreement with the appellant. Respondent No. 2 is a company incorporated
under the Companies Act, 1956.

57. The legal position with regard to post-contractual covenants or restrictions has been consistent,
unchanging and completely settled in our country. The legal position clearly crystallised in our
country is that while construing the provisions of Section 27 of the Contract Act, neither the test of
reasonableness nor the principle of restraint being partial is applicable, unless it falls within express
exception engrafted in Section 27.

58. Section 27 of the Contract Act, 1872 provides as follows:-

"27. Agreement in restraint of trade, void. - Every agreement by which any one is restrained
from exercising a lawful profession, trade or business of any kind is to that extent void.

Exception 1. - Saving of agreement is not to carry on business of which goodwill is sold. -

One who sells the goodwill of a business may agree with the buyer to refrain from carrying on
a similar business, within specified local limits, so long as the buyer, or any person deriving
title to the goodwill from him, carries on a like business therein, provided that such limits
appear to the Court reasonable, regard being had to the nature of the business."

59. We have perused the relevant portions of Niranjan Shankar Golikari (supra), Superintendence
Company of India (supra) and Gujarat Bottling (supra) which have been extracted by the learned
Judges of the Division Bench and quoted in extenso. In the circumstances, there can be no manner
of doubt that the Division Bench was right in coming to the prima facie conclusion drawn by it, and
in setting aside the Single Judge's order. No case was made out by the appellant for compelling
respondent No.1 to appoint the appellant as his agent in perpetuity. In view of the personal nature
of the service and relationship between the contracting parties, a contract of agency/management
such as the one entered into between the appellant and respondent No.1 is incapable of specific
performance and to enforce the performance thereof would be inequitable. Likewise, grant of
injunction restraining first respondent would have the effect of compelling the first respondent to be
managed by the appellant, in substance and effect a decree of specific performance of an agreement
of fiduciary or personal character or service, which is dependent on mutual trust, faith and
confidence.

63. If the negative covenant or obligation under Clause 31(b) is sought to be enforced beyond the
term, i.e. if it is enforced as against a contract entered into on 20.11.2003 which came into effect on
1.12.2003, then it constitutes an unlawful restriction on respondent No. 1's freedom to enter into
fiduciary relationships with persons of his choice, and a compulsion on him to forcibly enter into a
fresh contract with the appellant even though he has fully performed the previous contract, and is,
therefore, a restraint of trade which is void under Section 27 of the Contract Act.

64. Under Section 27 of the Contract Act (a) a restrictive covenant extending beyond the term of the
contract is void and not enforceable. (b) The doctrine of restraint of trade does not apply during the
continuance of the contract for employment and it applied only when the contract comes to an end.
(c) As held by this Court in Gujarat Bottling v. Coca Cola (supra), this doctrine is not confined
only to contracts of employment, but is also applicable to all other contracts.

Product S.No.372671553

This judgement ranked 4 in the hitlist.

K.G. Premshanker v. Inspector of Police, (SC) : Law Finder Doc Id # 1268

2002(4) R.C.R.(Criminal) 596 : 2002(4) R.C.R.(Civil) 330 : 2002(2) PLJ 569 : 2002 CriLJ 4343 :
2002 AIR (SC) 3372 : 2002(4) Crimes 261 : 2002(4) AICLR 940 : 2002(8) SCC 87 : 2002(6) Scale
371 : 2002(7) JT 30 : 2002(Sup2 ) SCR 350 : 2003 SCC(Cri) 223 : 2003() Rajdhani LR 14

SUPREME COURT OF INDIA

Before :- M.B. Shah, Bisheshwar Prasad Singh and H.K. Sema, JJ.
Criminal Appeal No. 935 of 2002 [Arising out of SLP (Crl.) No. 2187 of 1998]. D/d. 12.9.2002.

K.G. Premshanker - Appellant

Versus

Inspector of Police and Anr. - Respondent

For the Appellant :- S.K. Dholakia, Sr. Advocate, M.P. Vinod, Wills Mathews, Ms. Prachi Bajpai, M.K.
Michael, Advocates.

For the Respondent :- Altaf Ahmed, ASG, P. Parmeswaran, T.A. Khan, K.N. Balgopal, A. P.
Mukundan, C.N. Sreekumar, Advocates.

A. Civil Procedure Code, Section 11 - Evidence Act, Sections 40, 41, 42 and 43 - Trial of
civil and criminal cases - Relevancy of provious judgments :-Held :-(1) the previous
judgment which is final can be relied upon as provided under Section 40 to 43 of the
Evidence Act;(2) in civil suits between the same parties, principle of res-judicata may
apply(3) in a criminal case, Section 300 Criminal Procedure Code makes provision that
once a person is convicted or acquitted, he may not be tried again for the same offence if
the conditions mentioned therein are satisfied;(4) the criminal case and the civil
proceedings are for the same cause, judgment of the civil court would be relevant if
conditions of any of the Sections 40 to 43 are satisfied, but it cannot be said that the same
would conclusive except as provided in Section 41.(5) Section 41 provides which
judgment would be conclusive proof of what is stated therein.(6) judgment , order or
decree passed in a previous civil proceedings, if relevant , as provided under Sections 40
and 42 or other provisions of the Evidence Act then in each case, Court has to decide to
what extent it is binding or conclusive with a regard to the matter(s) decided therein.

[Paras 28 and 29]

B. Evidence Act, Sections 40, 41, 42 and 43 - Civil and Criminal Proceedings over same
cause are required to be decided by respective civil and criminal courts on evidence - No
matter it may lead to conflicting decisions - Finding recorded by criminal courts does not
stand superseded by judgment of civil court. AIR 1945 Lahore 23 (FB) Approved, AIR
1954 SC 397 relied and 1995(3) RCR(Crl.) 459 (SC) overruled.

[Paras 28, 29 and 30]

C. Evidence Act, Sections 40, 41, 42, 43 - Scope of section 40 to 43 of Evidence Act
explained.

[Para 19]

Cases referred :

V.M. Shah v. State of Maharashtra and anr., 1995(3) RCR(Crl.) 459 (SC) : [(1995) 5 SCC 767].

M/s. Karam Chand Ganga Prasad v. Union of India and ors. [(1970) 3 SCC 694].

Emperor v. Khwaja Nazir Ahmad [AIR 1945 Privy Council 18].

M.S. Sheriff and anr. v. State of Madras and ors. [AIR 1954 SC 397].

B.N. Kashyap v. Emperor [AIR 1945 Lahore 23].

Kharkan v. State of U.P. [(1964) 4 SCR 673].

JUDGMENT

M.B. Shah, J. - Leave granted.

2. The appellant and others who are accused in CC No. 513/95 filed Criminal Miscellaneous Case
Nos. 2209/95, 2316/95 and 784/96 before the High Court of Kerala for quashing the prosecution
against them. Those petitions were rejected by the High Court by judgment and order dated 11th
June, 1998. Hence, this appeal.

3. The prosecution was launched against the present appellant which arose out of an incident which
occurred because of a news item in the evening Daily "Sudinam" on 2nd February, 1988. The news
item was printed and published by one Madhavan at Kannur as per which one tribal girl - Manja,
aged about 16 years was raped by one Rajan. Manja and her parents lodged a complaint before the
Superintendent of Police, who transferred the complaint to the appellant herein, who was
Superintendent of Police, Kannur for investigation. On that complaint, a case was registered in Crime
No. 50/88 under Section 228A IPC and Section 7(1)(d) of the Protection of Civil Rights Act. The case
was entrusted to the Circle Inspector of Police who arrested Madhavan and the printing press was
also searched on 12th February, 1998. It is contended that after the arrest at about 8.00 p.m.,
Madhavan was taken in police jeep to the police station and on the way he was assaulted by the
policemen in the jeep. At about 8.30 p.m., he was put in lock up and on 13th February, 1988, he
was produced before the Magistrate at Kannur. He complained that he was assaulted by the police
and thereby he sustained injuries. After recording the aforesaid statement, the Magistrate enlarged
him on bail. For taking treatment for the injuries sustained by him, he went to hospital and got
himself admitted there. Form there, he lodged an FIR which was registered as Crime No. 52 of 1988
under Sections 143, 323, 324 etc. of IPC against the Sub-Inspector of Police, Kannur and also six or
seven unidentified policemen. The case registered against Madhavan was quashed by the High
Court. As there was no progress in the FIR registered by Madhavan, he moved the High Court for
entrusting investigation to the CBI. The High Court directed the Deputy Inspector General of Police,
Northern Range to investigate the case. Not being satisfied by the said order, Madhavan preferred a
Special Leave Petition before this Court and by order dated 22nd December, 1989, this court
directed the Deputy Inspector General of Police, Central Range, to investigate and file the report
within two months. As there was no progress in the matter within the prescribed time, Madhavan
again moved this Court and by order dated 24th September, 1992, this Court entrusted the
investigation to CBI and also awarded compensation of Rs. 10,000/- to Madhavan. After
investigation, CBI moved the State Government for sanction under Section 197 Cr. P.C. and
thereafter filed report before the Chief Judicial Magistrate, Ernakulam against 12 accused including
the present appellant on 27th April, 1995, for the offences punishable under Sections 324, 341, 342,
357, 219 and 166 IPC. The Chief Judicial Magistrate took cognizance of the said report.

4. Appellant and others filed separate applications for dropping the proceedings on the ground that a
final report was filed by the CBI beyond the period of limitation prescribed under Section 468
Criminal Procedure Code and that no application for condoning delay was filed. Those applications
were dismissed by the Chief Judicial Magistrate on 27.9.1995 and the delay in filing final report by
the CBI was condoned. The said order was challenged before the Additional Sessions Judge,
Ernakulam who directed the Magistrate to dispose of the said applications afresh. That order was
challenged by filing the impugned miscellaneous applications before the High Court.

5. The High Court after considering the various decisions cited, held that learned Sessions Judge has
only remitted the matter to the Chief Judicial Magistrate to consider the petition to be filed by the
CBI under Section 473 Criminal Procedure Code for condoning delay. The Court also held that it was
not a fit case for exercise of the jurisdiction under Section 482 Criminal Procedure Code

6. The appellant raised additional contention, before the High Court, that the de facto complainant-
Madhavan had filed a suit for the damages for the alleged acts, before the Sub Court, Tellicherry
against the appellant and other accused and the trial court has dismissed the suit against which he
had preferred the appeal before the High Court. It was, therefore, contended that as the suit was
dismissed, the decision rendered by the Civil Court will prevail and therefore the criminal prosecution
pending against the appellant and others is required to be dropped. The court rejected the said
contention. Hence, this appeal.

7. This Court on 9th November 1998, passed the following order :

"Since we are of the view that the Judgment of this Court in V.M. Shah v. State of
Maharashtra and anr., 1995(3) RCR(Crl.) 459 (SC) : [(1995) 5 SCC 767] which has
been relied upon by Mr. Gopal Subramanium, learned senior counsel appearing for the
petitioner, requires reconsideration, we refer this petition to a larger Bench for disposal. Let
the record be placed before Hon. the Chief Justice for necessary orders."

8. Thereafter, on 12th October, 1999, it was pointed out to this Court that the appeals filed against
the dismissal of the suit are pending in the High Court of Kerala and therefore the court directed that
it would be appropriate to await the judgment in those appeals before proceeding further with the
case. The court adjourned the hearing of the matter and requested the High Court to dispose of the
said appeals expeditiously.

9. At the time of hearing of these appeals, it is pointed out that the appeals are allowed and the
judgment and decree in OS Nos. 42/89 and 235/90 passed by the Subordinate Judge were set aside
and the matters were remitted to the trial court to try the suit from the stage of framing of issues.

10. The net result of the aforesaid decree passed by the High Court is that at present both criminal
prosecution for the offences as stated above and civil suits for damages are pending at trial stage.

11. In the background of the aforesaid facts, we would refer to the observations made in V.M.
Shah's case (supra) which are as under :-

"As seen that the civil court after full-dressed trial recorded the finding that the appellant had
not come into possession through the Company but had independent tenancy rights from the
 principal landlord and, therefore, the decree for eviction was negatived. Until that finding is
duly considered by the appellate court after weighing the evidence afresh and if it so
warranted reversed, the findings bind the parties. The findings, recorded by the criminal
court, stand superseded by the findings recorded by the civil court. Thereby, the findings of
the civil court get precedence over the findings recorded by the trial court, in particular, in
summary trial for offences like Section 630. The mere pendency of the appeal does not have
the effect of suspending the operation of the decree of the trial court and neither the finding
of the civil court gets nor the decree becomes inoperative."

12. Further, the learned senior counsel-Shri Dholakia appearing for the appellant submitted the
apart from the aforesaid judgment, this Court (three Judge Bench) in M/s. Karam Chand Ganga
Prasad and another v. Union of India and ors. [(1970) 3 SCC 694] held thus :-

"....If the appellants are able to establish their case that the ban on export of maize from the
State of Haryana had been validly lifted all the proceedings taken against those who exported
the Maize automatically fall to the ground. Their maintainability depends on the assumption
that the exports were made without the authority of law. It is a well-established principle of
law that the decisions of the civil courts are binding on the criminal courts. The converse is
not true......."

13. The aforesaid observations are to be read in context of the facts that Delhi High Court after
elaborately hearing the arguments rejected the writ petitions on the sole ground that in view of the
pendency of the criminal proceedings before some Courts in the State of West Bengal, it was
inappropriate for the High Court to pronounce on the question arising for decision in the writ
petitions. The Court observed that the High Court after entertaining the writ petitions and hearing
arguments on merits of the case should not have dismissed the petitions merely because certain
consequential proceedings had been taken on the basis that the exports in question were illegal. If
appellants were able to establish their case that the ban on export of maize from the State of
Haryana had been validly lifted all the proceeding taken against those who exported the maize
automatically fall to the ground. Their maintainability depends on the assumption that the exports
were made without the authority of law. In context of those facts the Court observed that the
decisions of the civil courts are binding on criminal courts but the converse is not true.

14. It is the submission of learned senior counsel Mr. Dholakia that in view of the well-settled
principle, the High Court ought to have dropped the prosecution against the appellant as civil court
has dismissed the suit for damages filed against appellant.

15. Learned Additional Solicitor General Shri Altaf Ahmed appearing for the respondents submitted
that the observation made by this Court in V.M. Shah's case that "the finding recorded by the
criminal Court, stands superseded by the finding recorded by the civil Court and thereby the finding
of the civil Court gets precedence over the finding recorded by the criminal Court" is against the law
laid down by this Court in various decisions. For this, he rightly referred to the provisions of Sections
41, 42 and 43 of the Evidence Act and submitted that under the Evidence Act to what extent
judgments given in the previous proceedings are relevant is provided and therefore it would be
against the law if it is held that as soon as the judgment and decree is passed in a civil suit the
criminal proceedings are required to be dropped if the suit is decided against the plaintiff who is the
complainant in the criminal proceedings.

16. In our view, the submission of learned Addl. Solicitor General requires to be accepted. Sections
40 to 43 of the Evidence Act provide which judgments of Courts of justice are relevant and to what
extent. Section 40 provides for previous judgment, order or a decree which by law prevents in a
court while taking cognizance of a suit or holding a trial, to be relevant fact when the question is
whether such court ought to take cognizance of such suit or to hold such trial. Section 40 is as under
:-

"40. Previous judgment relevant to bar a second suit or trial. - The existence of any
judgment, order or decree which by law prevents any Courts from taking cognizance of a suit
or holding a trial is a relevant fact when the question is whether such Court ought to take
cognizance of such suit or to hold such trial."

17. Section 41 provides for relevancy of certain judgments in probate, matrimonial, admiralty or
insolvency jurisdiction and makes it relevant or conclusive as provided therein.

Section 41 reads thus :-

"41. Relevancy of certain judgments in probate, etc., jurisdiction. - A final judgment, order or
decree of a competent Court, in the exercise of probate, matrimonial admiralty or insolvency
jurisdiction which confers upon or takes away form any person any legal character, or which
declares any person to be entitled to any such character, or to be entitled to any specific
 thing, not as against any specified person but absolutely, is relevant when the existence of
any such legal character, or the title of any such person to any such thing, is relevant.

Such judgment, order or decree is conclusive proof -

that any legal character which it confers accrued at the time when such judgment, order or
decree came into operation;

that any legal character, to which it declares any such person to be entitled, accrued, to that
person at the time when such judgment, order or decree declares it to have accrued to that
person;

that any legal character which it takes away from any such person ceased at the time from
which such judgment, order or decree declared that it had ceased or should cease;

and that anything to which it declares any person to be so entitled was the property of that
person at the time from which such judgment, order or decree decarles that it had been or
should be his property.

Section 42 with illustration reads thus :

"42. Relevancy and effect of judgments, orders or decrees, other than those mentioned in
section 41 - Judgments, orders or decrees other than those mentioned in section 41, are
relevant if they relate to matters of a public nature relevant to the enquiry, but such
judgments, orders or decrees are not conclusive proof of that which they state.

Illustration :

A sues B for trespass on his land. B alleges the existence of a public right of way over the
land, which A denies.

The existence of a decree in favour of the defendant, in a suit by A against C for a trespass
on the same land in which C alleged the existence of the same right of way, is relevant, but it
is not conclusive proof that the right of way exists".

18. Thereafter, Section 43 in terms provides that judgments, orders or decrees, other than
mentioned in Sections 40, 41, 42 are irrelevant unless the existence of such judgment, order or
decree, is a fact in issue, or is relevant under some provisions of the Act.

19. The final judgment, order or decree of a competent Court, in exercise of probate, matrimonial,
admiralty or insolvency jurisdiction would be relevant if it confers upon or takes away from any
person any legal character or it declares any person to be entitled to any such character or to be
entitled to any specific thing, not as against any specified person but absolutely. It further
specifically provides that such judgment or decree is conclusive proof of what is provided therein
such as legal character etc. As against this under Section 42, the relevancy of the judgments, orders
and the decrees in previous proceedings is limited if they relate to matters of public nature relevant
to the enquiry and such judgments, orders or decrees are not conclusive proof of that which they
state. Illustration to Section 42 makes the position clear.

20. In the facts of the present case, Section 42 would have some bearing and the judgment and
decree passed in civil Court would be relevant if it relates to matter of public nature relevant to the
enquiry but such judgment and decree is not a conclusive proof of that which it states.

21. In this regard, we would first refer to the decision rendered by the Privy Council in Emperor v.
Khwaja Nazir Ahmad [AIR 1945 Privy Council 18]. The Privy Council considered whether the
High Court had power under Section 561 Criminal Procedure Code to quash all proceedings taken in
pursuance of FIR for the offence punishable under Section 420 and prohibit the investigation on the
ground that similar charges were levelled against the respondent four year earlier. Some of the
charges were actively disproved and the rest held to be unfounded in an enquiry held as a
consequence of application to remove the respondent from his post of Receiver of the property. After
considering the evidence which was recorded in the enquiry, the High Court quashed the
proceedings and in that context the Privy Council observed that all this may be good ground for
rejection of acquisition and dismissal of any prosecution launched upon if such a prosecution
ultimately takes place and if the courts are then satisfied that no crime has been established and
thereafter court observed thus :-

"It is conceded that the findings in a civil proceeding are not binding in a subsequent
prosecution founded upon the same or similar allegations. Moreover, the police investigation
was stopped and it cannot be said with certainty that no more information could be obtained.
But even if it were not it is the duty of a criminal Court when a prosecution for a crime takes
 place before it to form its own view and not to reach its conclusion by reference to any
previous decision which is not binding upon it."

22. Further, in M.S. Sheriff and anr. v. State of Madras and ors. [AIR 1954 SC 397] the
Constitution Bench of this Court dealt with exactly similar situation, where two sets of proceedings
arising out of the same facts were pending, namely, two civil suits for damages for wrongful
confinement and another two criminal prosecutions under Section 344 IPC for wrongful confinement.
In that context, it was contended that simultaneous prosecution of these matters will embarrass the
accused and the Court considered the question whether criminal prosecution should stayed. In that
context, it was held thus :-

"As between the civil and the criminal proceedings we are of the opinion that the criminal
matters should be given precedence. There is some difference of opinion in the High Courts of
India on this point. No hard and fast rule can be laid down but we do not consider that the
possibility of conflicting decisions in the civil and criminal Courts is a relevant consideration.
The law envisages such an eventuality when it expressly refrains from making the decision of
one Court binding on the other, or even relevant, except for certain limited purposes, such as
sentence or damages. The only relevant consideration here is the likelihood of
embarrassment."

23. Shri Altaf Ahmed, learned Additional Solicitor General, further referred to the full bench decision
of Lahor High Court in B.N. Kashyap v. Emperor [AIR 1945 Lahore 23] wherein the Full Bench
considered the following question :-

"When there are concurrent proceedings covering the same ground before a criminal Court
and a civil Court, the parties being substantially the same, would the judgment of the civil
Court, if obtained first, be admissible in evidence before the criminal Court in proof or
disproof of the fact on which the prosecution is based ?"

24. In that context while deciding the said question the court observed thus :-

"In other words, the short point to decide is whether the finding on certain facts by a civil
Court is relevant before the criminal Court when it is called upon to give a finding on the
same facts or vice versa ? The Evidence Act being exhaustive, the answer to this question
depends upon the correct interpretation of the relevant provisions contained in that Act
regardless of the fact whether the conclusion at which was one ultimately arrives is in
accordance with what was characterized before us during the arguments at the Bar to a
commonsense view of things or not. In construing a statute like the Evidence Act, where any
fact intended to be established has to be in accordance with the scheme of the Act, found to
be relevant under a provision contained in the Act before it can be allowed to be proved, any
argument based on plausibility can have no effect. I must therefore ignore any other
consideration and confine myself strictly to the provisions of the Act."

25. Thereafter, the Court referred to Sections 42 and 43 of the Evidence Act. After considering the
said questions, the Court observed as under :-

"Under Section 40 of the Act, previous judgments are admissible in support of a plea of res
judicata in civil cases or of autre fois acquit or autre fois convict in criminal cases. Judgments
such as those whose relevgancy we have been called upon to determine do not fall under this
category. Nor can they fall under Section 41 of the Act which only makes a final judgment of
a competent Court, in the exercise of probate, matrimonial, admiralty or insolvency
jurisdiction, conferring upon, taking away from or declaring any person to be entitled to any
legal character or to be entitled to any specific thing absolutely, relevant when the existence
of any such legal character or the title to any such thing is relevant. They do not also fall
within the preview of Section 42 of the Act as they do not relate to matters of a public nature.
Section 43 of the Act positively declares judgments other than those mentioned in Sections
40, 41 and 42 to be irrelevant unless their existence is a fact in issue or is relevant under
some other provision of the Act. It is quite clear that mere existence of a judgment in the
present case is not relevant. Learned counsel for the petitioner saw this difficulty and wishes
to rely on Section 11 of the Act. But I cannot see how could that section have any application
when the existence of that judgment as apart from any finding contained therein or even the
finding itself could neither be inconsistent with any fact in issue or a relevant fact. Nor could
such judgments either by themselves or in connection with other facts make the existence or
non- existence of any fact in issue or relevant fact in any subsequent proceedings highly
probable or improbable. This section only refers to certain facts which are either themselves
inconsistent with, or make the existence or non- existence of, the fact in issue or a relevant
 fact highly probable or improbable and has no reference to opinions of certain persons in
regard to those facts. It does not make such opinions to be relevant and judgments after all
of whatever authority are nothing but opinions as to the existence or non-existence of certain
facts. These opinions cannot be regarded to be such facts as would fall within the meaning of
Section 11 of the Act unless the existence of these opinions is a fact in issue or a relevant
fact which is of course a different matter."

26. Finally, after considering the various decisions, the Court held thus :-

"There is no reason in my judgment as to why the decision of the civil Court particularly in an
action in personam should be allowed to have that sanctity. There appears to be no sound
reason for that view. To hold that when a party has been able to satisfy a civil Court as to the
justice of his claim and has in the result succeeded in obtaining a decree which is final and
binding upon the parties, it would not be open to criminal Courts to go behind the findings of
the civil Court is to place the latter without any valid reason in a much higher position than
what it actually occupies in the system of administration in this country and to make it
master not only of cases which it is called upon to adjudicate but also of cases which it is not
called upon to determine and over which it has really no control. The fact is that the issues in
the two cases although based on the same facts (and strictly speaking even parties in the two
proceedings) are not indentical and there appears to be no sufficient reason for delaying the
proceedings in the criminal Courts, which, unhampered by the civil Court, is fully competent
to decide the questions that arise before it for its decision and where in the nature of things
there must be a speedy disposal."

27. In Kharkan and others v. The State of U.P. [(1964) 4 SCR 673], the Court observed
thus :-

".... the earlier judgment can only be relevant if it fulfils the conditions laid down by the
Indian Evidence Act in Sections 40 to 43. The earlier judgment is no doubt admissible to
show the parties and the decision but it is not admissible for the purpose of relying upon the
appreciation of evidence...."

28. What emerges from the aforesaid discussion is - (1) the previous judgment which is final can be
relied upon as provided under Section 40 to 43 of the Evidence Act; (2) in civil suits between the
same parties, principles of res- judicata may apply; (3) in a criminal case, Section 300 Criminal
Procedure Code makes provision that once a person is convicted or acquitted, he may not be tried
again for the same offence if the conditions mentioned therein are satisfied; (4) if the criminal case
and the civil proceedings are for the same cause, judgment of the civil Court would be relevant if
conditions of any of the Sections 40 to 43 are satisfied, but it cannot be said that the same would be
conclusive except as provided in Section 41. Section 41 provides which judgment would be
conclusive proof of what is stated therein.

29. Further, the judgment, order or decree passed in a previous civil proceeding, if relevant, as
provided under Sections 40 and 42 or other provisions of the Evidence Act then in each case, Court
has to decide to what extent it is binding or conclusive with regard to the matter(s) decided therein.
Take for illustration, in a case of alleged trespass by 'A' on 'B's property, 'B' filed a suit for
declaration of its title and to recover possession from 'A' and suit is decreed. Thereafter, in a
criminal prosecution by 'B' against 'A' for trespass, judgment passed between the parties in civil
proceedings would be relevant and Court may hold that it conclusively establishes title as well as
possession of 'B' over the property. In such case, 'A' may be convicted for trespass. The illustration
to Section 42 which is quoted above makes the position clear. Hence, in each and every case, first
question which would require consideration is - whether judgment, order or decree is relevant ?, if
relevant - its effect. It may be relevant for a limited purpose, such as, motive or as a fact in issue.
This would depend upon facts of each case.

30. In the present case, the decision rendered by the Constitution Bench in M.S. Sheriff's case
(supra) would be binding, wherein it has been specifically held that no hard and fast rule can be laid
down and that possibility of conflicting decision in civil and criminal Courts is not a relevant
consideration. The law envisages "such an eventually when it expressly refrains from making the
decision of one Court binding on the other, or even relevant, except for limited purpose such as
sentence or damages."

31. Hence, the observation made by this Court in V.M. Shah's case (supra) that the finding recorded
by the criminal Court stands superseded by the finding recorded by the civil Court is not correct
enunciation of law. Further, the general observations made in Karam Chand's case are in context of
the facts of the case stated above. The Court was not required to consider the earlier decision of the
Constitution Bench in M.S. Sheriff's case as well as Sections 40 to 43 of the Evidence Act.
32. In the present case, after remand by the High Court, civil proceedings as well as criminal
proceedings are required to be decided on the evidence, which may be brought on record by the
parties.

In the result, the appeal is dismissed.

Appeal dismissed.

Product S.No.372671553

This judgement ranked 5 in the hitlist.

Syed Askari Hadi Ali Augustine Imam v. State (Delhi Admn.) , (SC) : Law Finder Doc Id # 183110

2009 AIR (SC) 3232 : 2009(2) R.C.R.(Criminal) 520 : 2009(2) Recent Apex Judgments (R.A.J.) 633 :
2009(5) SCC 528 : 2009(5) Mh.LJ 127

SUPREME COURT OF INDIA

Before :- S.B. Sinha, Lokeshwar Singh Panta and B. Sudershan Reddy, JJ.

Criminal Appeal No. 416 of 2009 [Arising out of Special Leave Petition (Criminal) No. 5791 of 2005].
D/d. 03.03.2009.

IMPORTANT

Judgment in rem - Probate of Will - Judgment of Probate Court is a judgment in rem - It is binding
on all Courts.

NUTSHELL

Criminall and Civil proceedings - In a given case, a civil proceeding as also a criminal proceeding
may proceed simultaneously - Cognizance in a criminal proceeding can be taken by the criminal
court upon arriving at the satisfaction that there exists a prima facie case.

IMPORTANT

Criminal and Civil proceedings over same case of action - Decision of Civil Court is not binding on
Criminal Court nor the decision of Criminal Court is binding on Civil Court.

Syed Askari Hadi Ali Augustine Imam & Anr. - Appellants

Versus

State (Delhi Admn.) & Anr. - Respondents

For the Appellants :- Dinesh Dwivedi, Sr. Advocate with S.K. Sinha, Manish Shanker and Prateek
Dwivedi, Advocates.

For the Respondents :- A. Sharan, ASG with A.M. Singhvi and S.C. Maheshawri, Sr. Advocate with
Ms. Neera Gupta, Ms. Sadhna Sandhu, Mrs. Anil Katiyar, Ms. Sandhya Goswami, H.C. Kharbanda
and M.P.S. Tomar, Advocates.

A. Evidence Act, Sections 40, 41, 42 and 43 - Criminal and Civil proceedings for the same
cause - Decisions of Civil Courts are not binding on criminal - Likewise a judgment of
Criminal Court - However, a judgment in rem is conclusive in civil proceedings - There is
neither any statutory provision nor any legal principle that the findings recorded in one
proceeding may be treated as final or binding in the other, as both the cases have to be
decided on the basis of the evidence adduced therein. AIR 1954 SC 397 relied and (1970)3
SCC 694 overruled. 2005(2) RCR(Criminal) 178 : 2005(1) Apex Criminal 581 (SC) relied.

[Paras 9, 11 and 12]

B. Evidence Act, Sections 40, 41, 42 and 43 - Criminal and Civil proceedings for the same
cause - Whether proceedings in civil case or criminal case be stayed depends on facts of
each case - Held :-

(1) Ordinarily a criminal proceeding will have primacy over the civil proceeding.
Precedence to a criminal proceeding is given having regard to the fact that disposal
of a civil proceeding ordinarily takes a long time and in the interest of justice the
former should be disposed of as expeditiously as possible

(2) If primacy is given to criminal proceedings, civil suit must be determined on its
own merits and not in terms of evidence brought in criminal proceedings

(3) If the criminal case and the civil proceedings are for the same cause, judgment
of the civil court would be relevant if conditions of any of Sections 40 to 43 are
satisfied, but it cannot be said that the same would be conclusive except as
provided in Section 41. Section 41 provides which judgment would be conclusive
proof of what is stated therein. AIR 1954 SC 397 and 2005(2) RCR(Criminal) 178 :
2005(1) Apex Criminal 581 (SC) relied.

[Para 10]

C. Evidence Act, Sections 43, 40, 41 and 42 - Criminal and civil proceedings - Judgment of
criminal court and civil court over the same cause - If judgment of a civil court is not
binding on a criminal court, a judgment of a criminal court will certainly not be binding on
a civil court - There is neither any statutory provision nor any legal principle that the
findings recorded in one proceeding may be treated as final or binding in the other, as
both the cases have to be decided on the basis of the evidence adduced therein. AIR 1954
SC 397.relied.

[Para 11]

D. Criminal Procedure Code, Section 340(1) - Section 340(1) of Cr. P.C. contemplates
holding of preliminary enquiry - Normally, a direction for filing of a complaint is not made
during the pendency of the proceeding before the Court and this is done at the stage when
the proceeding is concluded and the final judgment is rendered. 2005(2) RCR(Criminal)
178 : 2005(1) Apex Criminal 581 (SC) relied.

[Para 11]

E. Evidence Act, Sections 40, 41, 42 and 43 - Succession Act, 1925, Section 276 -
Judgment in rem - FIR against accused on the allegation of forging a Will - Contention of
accused that Will was genuine and filing petition for Probate of Will - Petition pending
before Probate Court - Accused seeking quashment of FIR on the ground that judgment of
Probate Court will a judgment in rem and binding both on Civil and Criminal Courts -
Petition for stay of criminal proceedings dismissed in the circumstances of case.

[Paras 12 and 13]

F. Evidence Act, Section 41 - Succession Act, 1925, Section 276 - Judgment in rem -
Probate of Will - It is beyond any cavil that a judgment rendered by a probate court is a
judgment in rem - It is binding on all courts and authorities - Being a judgment in rem it
will have effect over other judgments - A judgment in rem indisputably is conclusive in a
criminal as well as in civil proceeding. AIR 1957 SC 875 relied.

[Para 12]

Cases referred :

Smt. Janak Vohra v. DDA, 103 (2003) DLT 789.

M.S. Sheriff v. State of Madras [AIR 1954 SC 397].

K.G. Premshanker v. Inspector of Police, 2002(4) RCR(Criminal) 596 : 2002(4) RCR(Civil) 330 :
[(2002)8 SCC 87].

M/s Karam Chand Ganga Prasad v. Union of India [(1970) 3 SCC 694].

Iqbal Singh Marwah v. Meenakshi Marwah, 2005(2) RCR(Criminal) 178 : 2005(1) Apex Criminal
581 : [(2005)4 SCC 370].
P. Swaroopa Rani v. M. Hari Narayana @ Hari Babu, 2008(2) RCR(Criminal) 492 : 2008(2) RAJ 520 :
[AIR 2008 SC 1884].

Sardool Singh v. Smt. Nasib Kaur [1987 (Supp.) SCC 146].

Commissioner of Income Tax, Mumbai v. Bhupen Champak Lal Dalal, 2001(2) RCR(Criminal) 140 :
[(2001)3 SCC 459].

Surinder Kumar v. Gian Chand [AIR 1957 SC 875].

Mt. Daropti v. Mt. Santi [1929 Lahore 483].

Komollochun Dutt v. Nilrutten Mandal (1897) 4 Cal. 360.

Babu Lal v. Hari Bakhsh (1918) 13 P.R. 1918.

Venkataratnam v. Ram Mohana Rao, (1916) 31 M.L.J. 277.

Kishore Bhai Rewa Das v. Ranchodia (1916) 38 Bom. 427.

Darbara Singh v. Karminder Singh [AIR 1979 Punjab & Haryana 215].

Lalitaben Jayantilal Popat v. Pragnaben Jamnadas Kataria, 2009(1) RCR(Civil) 715 : 2009(1) RAJ
416 : [2009(1) SCALE 328].

JUDGMENT

S.B. Sinha, J. - Leave granted.

2. Effect of pendency of a probate proceeding vis-a-vis a criminal case involving allegations of

forgery of a Will is the question involved in this appeal. It arises out of a judgment and order dated
23.7.2005 passed by a learned single judge of the Delhi High Court in Criminal Revision No. 184 of
2005.

3. Before embarking on the said legal question, we may notice the factual matrix involved herein.

One Shamim Amna Imam (testatrix) indisputably was the owner of the properties in question.
Allegedly, she executed a Will in favour of the appellants on 3.5.1998. She expired on 23.5.1998.

Her legal heir was one Smt. Syeda Mehndi Imam ('Syeda' for short), the mother of the testatrix.

On or about 23.1.1999, Syed Askari Hadi Ali Augustine Imam ('Askari' for short) filed an application
before the office of the Sub- Registrar Hazaribagh in the State of Jharkhand for registration of the
said Will dated 3.5.1998. He also applied before the Delhi Development Authority (DDA) for grant of
mutation in respect of the property situated at A-4, Chirag Co-operative Housing Society Limited
known as Chirag Enclave, New Delhi on or about 25.2.1999 in view of the Will dated 3.5.1998.
Indisputably, Syeda also made an application to the DDA on 23.4.1999 for grant of mutation in her
favour.

On or about 17.7.2000, the said Authority informed 'Askari' that his request for mutation could not
be acceded to as (1) the appellant could not produce the original copy of the Will dated 3.5.1998;
(2) the property in question was under the possession of Shri M.C. Reddy and Shri M.H. Reddy, and
(3) Title Suit (T.S. No. 262 of 1991) filed by testatrix against the appellant was pending in the civil
court in Hazaribagh.

Thereafter, appellant approached Permanent Lok Adalat (PLA) of the DDA, which by an award dated
20.2.2001 directed DDA to grant mutation in his favour.

Syeda filed a writ petition marked as Writ Petition (C) No. 2263 of 2002 before the Delhi High Court
for quashing of the said order dated 20.2.2001 of the PLA in pursuance whereof further proceedings
before the PLA was directed to be stayed by an order 3.5.2002. Aggrieved thereby, Askari filed Writ
Petition (C) No. 3579 of 2002, which has been dismissed by a learned single judge of the same High
Court by an order dated 8.4.2003. Writ Petition (C) No. 2263 of 2002 filed by Syeda has been
allowed by an order dated 29.9.2003, holding :

"I am thus of the considered view that the impugned direction dated 20.2.2001 could not
have been passed by the Permanent Lok Adalat and the same is hereby quashed. Further, no
purpose would be served in continuation of the proceedings before a Permanent Lok Adalat in
view of the disputes not being capable of reconciliation till such time as the right of
Respondent No. 2 to the property in question in pursuance to the bequeath made under the
will in dispute is finally adjudicated upon. It has already been held by this Court in Smt.
 Janak Vohra v. DDA, 103 (2003) DLT 789 that in case of such disputed questions of title,
and mutation being asked for, it is appropriate that the disputes of title be adjudicated in
appropriate civil procedure and no direction be issued to mutate the property in the name of
a party."

An appeal preferred thereagainst before the Division Bench of High Court was dismissed. A Special
Leave Petition filed thereagainst has also been dismissed by this Court.

Indisputably Syeda filed a civil suit in the court of Subordinate Judge, Patna, which was marked as
Civil Suit No. 71 of 2000, inter alia, questioning the genuineness of the said will based on which the
appellants had claimed mutation in respect of the property at Delhi.

Syeda also filed a criminal complaint on or about 19.9.2002 against the appellants under Sections
420/468/444/34 IPC in Greater Kailash-I, New Delhi, Police Station alleging that the Will dated
3.5.1998 had been forged by the appellants.

The matter was investigated into and the disputed Will was sent for examination by the experts to
the Forensic Science Laboratory and the same was found to be forged, stating:

"All the documents were carefully and thoroughly examined with scientific instruments such
as Stereo Microscope, Video Spectral Comparator- IV, Docucenter, VSC-2000/HR and
Poliview System etc. under different lighting conditions and I am of the opinion that :

The persons who wrote red enclosed signatures stamped and marked A1 to A4 did not write
the red enclosed signatures similarly stamped and marked Q1 and Q2, for the following
reasons:

All the admitted signatures marked A1 to A4 are freely written, show natural variations and
normal consistency among themselves which are observed in the genuine signatures of an
individual executed over a period of time under varying circumstances. The questioned
signatures marked Q1 & Q2 on the other hand are slow and drawn in their execution exhibit
pen-lift at unusual places, stubbed finish and both the signatures marked Q1 and Q2 are
superimposed over each other. In addition to these divergences are also observed between
the questioned and standard signatures in the detailed execution of various characters such
as - nature of commencement and movement between two body parts of 'S', isolated nature
and location of 'h', movement in the lower body part of 'h', movement in the shoulders of 'm'
and manner of combining 'm' with 'i' and 'i' with the terminal character 'm', nature and
direction of the finish of terminal part of 'm' in the word 'Shamim' as observed in Q1 & Q2 is
nowhere observed in standards, leftward location of 'I-dot' as observed in Q1 & Q2 is also
found different in standards; manner of execution of 'A', nature of the apex of 'A', nature of
commencement, shape and direction of the commencing part of 'm' as observed in Q1, Q2 is
also nowhere observed in standards; manner of combining 'm' with 'n' and omission of
character 'e' as observed in Q1, Q2 is also nowhere observed in standards, nature and shape
of the shoulder of 'n', movement in their shoulders; nature and shape of the oval of 'a',
nature and direction in the terminal part of 'a' as observed in questioned signatures is also
nowhere observed in standard signatures; habit of writing word 'Imam' in questioned
signatures is also nowhere observed in standards.

The aforesaid divergences are fundamental in nature and beyond the range of natural
variations and intended disguise and when considered collectively they lead me to the above
said opinion."

Cognizance of offences had been taken in the year 2002.

Appellants were granted anticipatory bail by the learned Additional Sessions Judge, New Delhi by an
order dated 16.11.2002.

On or about 30.1.2003, appellants filed an application for grant of probate being Testamentary Case
No. 1 of 2003 in respect of the Will dated 3.5.1998 before the Jharkhand High Court under Section
276 of the Indian Succession Act. We may, however, notice that in the aforementioned
Testamentary Suit, Syeda was not originally impleaded as a party. The court, however, suo motu
directed issuance of notice. She was impleaded as a party only on 20.9.2001.

Indisputably, Syeda on or about 9.9.1999 executed a Will bequeathing her right, title and interest in
the property in favour of Mr. Faiz Murtaza Ali ("Faiz" for short). She died on 22.2.2004. After her
death Faiz claimed himself to be her legal heir on the strength of the said registered will dated
9.9.1999.
Indisputably, appellants preferred Writ Petition (Criminal) No. 636 of 2004 before the Delhi High
Court for quashing of the FIR dated 19.9.2002, which by reason of an order dated 29.7.2004 has
been disposed of, stating :

"The petitioners, however, will be at liberty to move the trial court by way of moving an
application for stay of the criminal trial pending adjudication of the question of genuineness
of the Will by the Civil Court...."

Relying on or on the basis thereof, the appellants filed an application under Section 309 of the Code
of Criminal Procedure, 1973 before the learned Metropolitan Magistrate seeking stay of proceedings
of the criminal case, which has been dismissed by an order dated 10.2.2005, stating :

"The perusal of the case shows that the accused have been charge sheeted for the offences
under Section 420/468/448/34 IPC and during the investigation the documents including the
alleged Will was seized by the IO and the same was sent to CFSL for expert opinion and it has
been opined that the alleged Will was a forged one and on the basis of the said opinion the
Hon'ble High Court had already opined in the order dated 29.7.2004 that there were no good
grounds for quashment of the FIR and the proceedings arising out of the same, and the
petition for quashing of the FIR was dismissed and the petitioners were given liberty by the
Hon'ble High Court to move the trial court by way of a proper applications for stay of criminal
trial pending adjudication of the question of the genuineness of the Will by the Civil Court. In
the said order, only liberty has been granted to the applicants and the trial court has been
directed only to dispose of the present application in accordance with law."

Aggrieved thereby and dissatisfied therewith, appellants preferred Criminal Revision No. 184 of 2005
before the Delhi High Court, which has been dismissed by reason of the impugned judgment.

4. Indisputably, Faiz, the nephew of the testratrix filed Caveat Petition No. 61 of 2005 in
Testamentary Case No. 1 of 2003 before the Jharkhand High Court, which was dismissed by a
learned single judge by an order dated 4.1.2008 whereagainst L.P.A. No. 32 of 2008 was preferred
but was dismissed by a Division Bench of the same Court by an order dated 2.4.2008, inter alia,
holding :

"....Admittedly, the appellant - caveator is neither the brother of the testatrix, nor the
descendant of the brother or the sister of the testatrix. The mere fact that the testatrix
predeceased her mother would not entitle the descendant of the brother of the said mother of
the testatrix to have caveatable interest to implead himself as one of the parties in the
probate proceedings. It is contended that several litigations are going on between the parties
with regard to the properties inclusive of the properties which are the subject-matter of the
Will sought to be probated in the testimony case and in those cases, the petitioner - caveator
has been allowed to be impleaded. Merely because the petitioner - appellant has been
impleaded or substituted in other pending suits with reference to the disputes over the
properties including the properties which are the subject matter of the Will, he cannot claim
the right to have caveatable interest..."

However, before us, an application for impleadment has been filed, which has been allowed by an
order dated 27.8.2007.

It is, however, stated at the Bar that the review application has been allowed.

5. Indisputably, the property at A-4, Chirag Co-operative Housing Society Limited known as Chirag
Enclave, New Delhi was mutated in the name of said Faiz by an order dated 12.4.2006. Askari and
Sayed Akabir Hussain filed writ petitions thereagainst. The said writ petitions also were dismissed.

6. We have noticed hereinbefore that the appellant filed an application for quashing of the FIR which
was, however, dismissed by an order dated 29.7.2004 observing that the appellants would be at
liberty to move the trial court by way of moving an application for stay of the criminal trial pending
adjudication of the question of the genuineness of the Will by the Civil Court.

7. Mr. Dinesh Dwivedi, learned Senior Counsel appearing on behalf of the appellants, would urge :

(i) A judgment in a probate proceeding being a judgment in rem as envisaged under Section
41 of the Indian Evidence Act, the criminal proceedings should have been directed to be
stayed.

(ii) The learned trial judge as also the High Court committed a serious error insofar as they
failed to take into consideration that the application under Section 309 of the Code of
 Criminal Procedure was dismissed on the same ground on which the application for quashing
the proceedings had been dismissed.

8. Mr. A. Sharan, learned Additional Solicitor General appearing for State and Dr. A.M. Singhvi,
learned Senior Counsel appearing on behalf of the impleaded respondent, however would support
the impugned judgment.

9. Indisputably, in a given case, a civil proceeding as also a criminal proceeding may proceed
simultaneously. Cognizance in a criminal proceeding can be taken by the criminal court upon arriving
at the satisfaction that there exists a prima facie case.

The question as to whether in the facts and circumstances of the case one or the other proceedings
would be stayed would depend upon several factors including the nature and the stage of the case.

10. It is, however, now well settled that ordinarily a criminal proceeding will have primacy over the
civil proceeding. Precedence to a criminal proceeding is given having regard to the fact that disposal
of a civil proceeding ordinarily takes a long time and in the interest of justice the former should be
disposed of as expeditiously as possible.

The law in this behalf has been laid down in a large number of decisions. We may notice a few of
them.

In M.S. Sheriff & anr. v. State of Madras & Ors. [AIR 1954 SC 397], a Constitution Bench of
this Court was seized of a question as to whether a civil suit or a criminal case should be stayed in
the event both are pending; it was opined that the criminal matter should be given precedence.

In regard to the possibility of conflict in decisions, it was held that the law envisages such an
eventuality when it expressly refrains from making the decision of one Court binding on the other or
even relevant, except for certain limited purposes, such as sentence or damages. It was held that
the only relevant consideration was the likelihood of embarrassment.

If primacy is to be given to a criminal proceeding, indisputably, the civil suit must be determined on
its own merit, keeping in view the evidences brought before it and not in terms of the evidence
brought in the criminal proceeding.

The question came up for consideration in K.G. Premshanker v. Inspector of Police and anr.,
2002(4) RCR(Criminal) 596 : 2002(4) RCR(Civil) 330 : [(2002) 8 SCC 87], wherein this
Court inter alia held :

"30. What emerges from the aforesaid discussion is - (1) the previous judgment which is final
can be relied upon as provided under Sections 40 to 43 of the Evidence Act;

(2) in civil suits between the same parties, principle of res judicata may apply;

(3) in a criminal case, Section 300 CrPC makes provision that once a person is convicted or
acquitted, he may not be tried again for the same offence if the conditions mentioned therein
are satisfied;

(4) if the criminal case and the civil proceedings are for the same cause, judgment of the civil
court would be relevant if conditions of any of Sections 40 to 43 are satisfied, but it cannot be
said that the same would be conclusive except as provided in Section 41. Section 41 provides
which judgment would be conclusive proof of what is stated therein.

31. Further, the judgment, order or decree passed in a previous civil proceeding, if relevant,
as provided under Sections 40 and 42 or other provisions of the Evidence Act then in each
case, the court has to decide to what extent it is binding or conclusive with regard to the
matter(s) decided therein. Take for illustration, in a case of alleged trespass by A on B's
property, B filed a suit for declaration of its title and to recover possession from A and suit is
decreed. Thereafter, in a criminal prosecution by B against A for trespass, judgment passed
between the parties in civil proceedings would be relevant and the court may hold that it
conclusively establishes the title as well as possession of B over the property. In such case, A
may be convicted for trespass. The illustration to Section 42 which is quoted above makes
the position clear. Hence, in each and every case, the first question which would require
consideration is - whether judgment, order or decree is relevant, if relevant - its effect. It
may be relevant for a limited purpose, such as, motive or as a fact in issue. This would
depend upon the facts of each case."

It is, however, significant to notice that the decision of this Court in M/s Karam Chand Ganga
Prasad & anr. etc. v. Union of India & ors. [(1970) 3 SCC 694]., wherein it was categorically
held that the decisions of the civil courts will be binding on the criminal courts but the converse is
not true, was overruled, stating :

"33. Hence, the observation made by this Court in V.M. Shah case that the finding recorded
by the criminal court stands superseded by the finding recorded by the civil court is not
correct enunciation of law. Further, the general observations made in Karam Chand case are
in context of the facts of the case stated above. The Court was not required to consider the
earlier decision of the Constitution Bench in M.S. Sheriff case as well as Sections 40 to 43 of
the Evidence Act."

11. Axiomatically, if judgment of a civil court is not binding on a criminal court, a judgment of a
criminal court will certainly not be binding on a civil court. We have noticed hereinbefore that
Section 43 of the Evidence Act categorically states that judgments, orders or decrees, other than
those mentioned in sections 40, 41 and 42 are irrelevant, unless the existence of such judgment,
order or decree, is a fact in issue, or is relevant under some other provisions of the Act. No other
provision of the Evidence Act or for that matter any other statute has been brought to our notice.

Another Constitution Bench of this Court had the occasion to consider a similar question in Iqbal
Singh Marwah & Anr. v. Meenakshi Marwah & Anr., 2005(2) RCR(Criminal) 178 : 2005(1)
Apex Criminal 581 : [(2005)4 SCC 370]. wherein it was held :

24. There is another consideration which has to be kept in mind. Sub-section (1) of Section
340 CrPC contemplates holding of a preliminary enquiry. Normally, a direction for filing of a
complaint is not made during the pendency of the proceeding before the court and this is
done at the stage when the proceeding is concluded and the final judgment is rendered.
Section 341 provides for an appeal against an order directing filing of the complaint. The
hearing and ultimate decision of the appeal is bound to take time. Section 343(2) confers a
discretion upon a court trying the complaint to adjourn the hearing of the case if it is brought
to its notice that an appeal is pending against the decision arrived at in the judicial
proceeding out of which the matter has arisen. In view of these provisions, the complaint
case may not proceed at all for decades specially in matters arising out of civil suits where
decisions are challenged in successive appellate fora which are time- consuming. It is also to
be noticed that there is no provision of appeal against an order passed under Section 343(2),
whereby hearing of the case is adjourned until the decision of the appeal. These provisions
show that, in reality, the procedure prescribed for filing a complaint by the court is such that
it may not fructify in the actual trial of the offender for an unusually long period. Delay in
prosecution of a guilty person comes to his advantage as witnesses become reluctant to give
evidence and the evidence gets lost. This important consideration dissuades us from
accepting the broad interpretation sought to be placed upon clause (b)(ii)."

Relying inter alia on M.S. Sheriff (supra), it was furthermore held:

"32. Coming to the last contention that an effort should be made to avoid conflict of findings
between the civil and criminal courts, it is necessary to point out that the standard of proof
required in the two proceedings are entirely different. Civil cases are decided on the basis of
preponderance of evidence while in a criminal case the entire burden lies on the prosecution
and proof beyond reasonable doubt has to be given. There is neither any statutory provision
nor any legal principle that the findings recorded in one proceeding may be treated as final or
binding in the other, as both the cases have to be decided on the basis of the evidence
adduced therein."

The question yet again came up for consideration in P. Swaroopa Rani v. M. Hari Narayana @
Hari Babu, 2008(2) RCR(Criminal) 492 : 2008(2) RAJ 520 : [AIR 2008 SC 1884], wherein it
was categorically held:

"13. It is, however, well-settled that in a given case, civil proceedings and criminal
proceedings can proceed simultaneously. Whether civil proceedings or criminal proceedings
shall be stayed depends upon the fact and circumstances of each case."

12. Mr. Dwivedi, however, would urge that in a case of this nature Section 41 of the Indian Evidence
Act, 1872 would be applicable. Mr. Dwivedi would in support of his aforementioned contention place
strong reliance on Sardool Singh & Anr. v. Smt. Nasib Kaur [1987 (Supp.) SCC 146],
Commissioner of Income Tax, Mumbai v. Bhupen Champak Lal Dalal & anr., 2001(2)
RCR(Criminal) 140 : [(2001)3 SCC 459]. and Surinder Kumar & ors. vs. Gian Chand & ors.
[AIR 1957 SC 875].

Section 41 of the Indian Evidence Act reads as under :

 "41 - Relevancy of certain judgments in probate, etc., jurisdiction. - A final judgment, order
or decree of a competent Court, in the exercise of probate, matrimonial admiralty or
insolvency jurisdiction which confers upon or takes away from any person any legal
character, or which declares any person to be entitled to any such character, or to be entitled
to any specific thing, not as against any specified person but absolutely, is relevant when the
existence of any such legal character, or the title of any such person to any such thing, is
relevant.

Such judgment, order or decree is conclusive proof -

that any legal character which it confers accrued at the time when such judgment, order or
decree came into operation;

that any legal character, to which it declares any such person to be entitled, accrued, to that
person at the time when such judgment, order or decree declares it to have accrued to that
person;

that any legal character which it takes away from any such person ceased at the time from
which such judgment, order or decree declared that it had ceased or should cease;

and that anything to which it declares any person to be so entitled was the property of that
person at the time from which such judgment, order or decree declares that it had been or
should be his property."

It speaks about a judgment. Section 41 of the Evidence Act would become applicable only when a
final judgment is rendered. Rendition of a final judgment which would be binding on the whole world
being conclusive in nature shall take a long time. As and when a judgment is rendered in one
proceeding subject to the admissibility thereof keeping in view Section 43 of the Evidence Act may
be produced in another proceeding. It is, however, beyond any cavil that a judgment rendered by a
probate court is a judgment in rem. It is binding on all courts and authorities. Being a judgment in
rem it will have effect over other judgments. A judgment in rem indisputably is conclusive in a
criminal as well as in a civil proceeding.

We may, however, notice that whether a judgment in rem is conclusive in a criminal proceeding or
not, is a matter of some doubt under the English law.

Johnson and Bridgman, Taylor of Evidence, Vol. 2, in Section 1680 notes that 'whether a judgment
in rem is conclusive in a criminal proceeding is a question which admits of some doubt'. It is,
however, concluded that it is said that nothing can be more inconvenient or dangerous than a
conflict of decisions between different courts, and that, if judgments in rem are not regarded as
binding upon all courts alike, the most startling anomalies may occur.

A three judge Bench of this Court had the occasion to consider the legal effect of a judgment vis-a-
vis Section 41 of the Evidence Act in Surinder Kumar & ors. v. Gian Chand & ors. [AIR 1957 SC
875]. Kapur, J. speaking for the Bench, opined :

"It is clear that the probate was applied for and obtained after the judgment of the High
Court and therefore could not have been produced in that Court. The judgment of the Probate
Court must be presumed to have been obtained in accordance with the procedure prescribed
by law and it is a judgment in rem. The objection that the respondents were not parties to it
is thus unsustainable because of the nature of the judgment itself."

The question came up for consideration again before this Court in Sardool Singh & Anr. v. Smt.
Nasib Kaur [1987 (Supp.) SCC 146], wherein it was opined :

"A civil suit between the parties is pending wherein the contention of the respondent is that
no Will was executed whereas the contention of the appellants is that a Will has been
executed by the testator. A case for grant of probate is also pending in the court of learned
District Judge, Rampur. The civil court is therefore seized of the question as regards the
validity of the Will. The matter is sub judice in the aforesaid two cases in civil courts. At this
juncture the respondent cannot therefore be permitted to institute a criminal prosecution on
the allegation that the Will is a forged one. That question will have to be decided by the civil
court after recording the evidence and hearing the parties in accordance with law. It would
not be proper to permit the respondent to prosecute the appellants on this allegation when
the validity of the Will is being tested before a civil court. We, therefore, allow the appeal, set
aside the order of the High Court, and quash the criminal proceedings pending in the Court of
the Judicial Magistrate, First Class, Chandigarh in the case entitled Smt. Nasib Kaur v.
Sardool Singh. This will not come in the way of instituting appropriate proceedings in future
in case the civil court comes to the conclusion that the Will is a forged one."
No ratio, however, can be culled out therefrom. Why such a direction was issued or such
observations were made do not appear from the said decision.

13. Herein, however, criminal case had already been instituted. Whether the same would be allowed
to be continued or not is the question.

We have noticed hereinbefore the decision in K.G. Premshanker (supra). Mr. Dwivedi, however,
would submit that the court therein was concerned with a case involving Section 42 of the Evidence
Act. The learned counsel may be correct as it was held that Section 41 is an exception to Sections
40, 42 and 43 of the Act providing as to which judgment would be conclusive proof of what is stated
therein.

To the same effect are the decisions of some of the High Courts.

In Mt. Daropti v. Mt. Santi [1929 Lahore 483], it was held :

"The learned District Judge has held that the will was either a forgery or had been executed
under "undue influence". As regards "undue influence" here was neither any plea, nor
evidence on the record to support the learned Judge's finding. Moreover, these questions
could not be raised in the present suit until and unless the letters of administration granted to
Mela Ram was revoked. It was held in Komollochun Dutt v. Nilrutten Mandal (1897) 4
Cal. 360, in somewhat similar circumstances under the Succession Act of 1865, that where it
is alleged that a probate has been wrongly granted, the proper course is to apply to the Court
which granted the probate to revoke the same. The grant of letters of administration in the
present case stands on the same footing. The grant of letters of administration so long as it
subsists is conclusive evidence as regards the proper execution of the Will and the legal
character conferred on the administrator : vide Sections 12 and 59, Probate and
Administration Act, 1881, corresponding to Sections 227 and 273, Succession Act, 1925,
which now incorporates that Act, Section 41, Evidence Act etc: Babu Lal v. Hari Bakhsh
(1918) 13 P.R. 1918.; Venkataratnam v. Ram Mohana Rao, (1916) 31 M.L.J. 277;
Kishore Bhai Rewa Das v. Ranchodia (1916) 38 Bom. 427..."

In Darbara Singh v. Karminder Singh & ors. [AIR 1979 Punjab & Haryana 215], it was held :

"5. The provision of sub-section (1) of Section 8 of the Act makes it expressly clear in
unqualified terms that no personal covenant of the guardian shall be binding on the minor. It
means only this that, when looked from the stand point that the aforesaid interdiction is
added at the fag-end of Section 8(1) by way of proviso to the clause that preceded it, a
guardian though well within his right to enter into a contract for the benefit of the minor, but
the said contract would not be enforceable against the minor even when it was entered for
his benefit and would be voidable at his instance."

A Constitution Bench of this Court in Iqbal Singh Marwah & anr. (supra) also does not appear to
have dealt with this aspect of the matter.

The question, however, would be as to whether despite the same should we interfere with the
impugned judgment. We do not think that we should. Firstly, because the criminal case was
instituted much prior to the initiation of the probate proceeding and secondly because of the conduct
of the appellant and the stage in which the probate proceedings are pending.

For the aforementioned purpose, it may not be relevant for us to enter into the disputed question as
to whether the Will is surrounded by suspicious circumstances as the same would appropriately call
for decision in the testamentary proceeding. Pendency of two proceedings whether civil or criminal,
however, by itself would not attract the provisions of Section 41 of the Evidence Act. A judgment has
to be pronounced. The genuineness of the Will must be gone into. Law envisages not only
genuineness of the Will but also explanation to all the suspicious circumstances surrounding thereto
besides proof thereof in terms of Section 63(c) of the Indian Succession Act, and Section 68 of the
Evidence Act. [See Lalitaben Jayantilal Popat v. Pragnaben Jamnadas Kataria & ors.,
2009(1) RCR(Civil) 715 : 2009(1) RAJ 416 : 2009(1) SCALE 328].

14. The FIR was lodged not only in regard to forgery by the Will but also on the cause of action of a
trespass. Appellant admittedly is facing trial under Section 420, 468 and 448 of the IPC. It is, thus,
possible that even if the Will is found to be genuine and that no case under Section 468 of the IPC is
found to have been made out, appellant may be convicted for commission of other offences for
which he has been charged against, namely, trespass into the property and cheating. If it is found
that the appellant is guilty of trespass, he may be asked to handover possession of the premises in
question to the complainant.
15. Exercise of such a jurisdiction furthermore is discretionary. As noticed by several decisions of
this Court, including two Constitution Bench decisions, primacy has to be given to a criminal case.
The FIR was lodged on 19.9.2002. Not only another civil suit is pending, as noticed hereinbefore, but
a lis in relation to mutation is also pending.

Whereas the criminal case is pending before the Delhi court, the testamentary suit has been filed
before the Jharkhand High Court. Since 2003 not much progress has been made therein. The Will
has not been sent to the handwriting expert for his opinion, which is essential for determination of
the question in regard to the genuineness of the Will. It is alleged that the Will was registered at
Hazaribagh after the death of the testatrix. For the last seven years in view of the pendency of the
matters before the High Courts in different proceedings initiated by the appellant, the criminal case
has not proceeded, although as noticed hereinbefore charge-sheet has been filed and cognizance of
the offence has been taken.

We, therefore, are of the opinion that it is not a fit case where we should exercise our discretionary
jurisdiction under Article 136 of the Constitution of India having regard to the facts and
circumstances of the present case.

16. For the aforementioned reasons, we find no merit in this appeal. The appeal is dismissed. No
costs.

Appeal dismissed.
 Product S.No.372671553

This judgement ranked 5 in the hitlist.

Narbada Devi Gupta v. Birendra Kumar Jaiswal, (SC) : Law Finder Doc Id # 65178

2004(1) RentLR 206 : 2003(4) R.C.R.(Civil) 683 : 2003(2) R.C.R.(Rent) 564 : 2004(1) LJR 677 :
2004(1) PLR 405 : 2004(1) CivCC 337 : 2004 AIR (SC) 175 : 2003(8) SCC 745 : 2003(9) Scale 210
: 2003(8) JT 267 : 2003 SCR 90 : 2004(1) ICC 619 : 2004() Rajdhani LR 41

SUPREME COURT OF INDIA

Before :-Shivaraj V. Patil & D.M. Dharmadhikari, JJ.

Civil Appeal No. 315 of 1998. D/d. 3.11.2003

Narbada Devi Gupta - Appellant

Versus

Birendra Kumar Jaiswal and Anr. - Respondents

For the Appellant :- Jaideep Gupta, Sr. Advocate, Nalin Tripati, Advocate for Ms. Sarla Chandra,
Advocate.

For the Respondents :- Raj Kumar Gupta, Sheo Kumar Gupta, Advocate for A.N. Bardiyar, Advocate.

Evidence Act, Section 66 - Mere production and marking of a document as exhibit by the
court cannot be held to be a due proof of its contents - Its execution has to be proved by
admissible evidence - Situation is, however, different where the documents are produced,
they are admitted by the opposite party, signatures on them are also admitted and they
are marked thereafter as exhibits by the court.

[Para 16]

Cases referred :

Dattatraya v. Rangnath Gopalrao Kawathekar (dead) Thr. LRs., AIR 1971 SC 2548.

Kamji Dayawala & Sons (P) Ltd. v. Invest Import, 1981(1) SCC 80.

Om Prakash Berila & Anr. v. Unit Trust of India, AIR 1983 (Bombay) 1.

JUDGMENT

D.M. Dharmadhikari, J. - The suit for recovery of possession of the suit premises on the
allegations of taking wrongful and forcible possession by the contesting respondent was decreed by
the city civil court, Calcutta by its judgment dated 29.6.1984. The Division Bench of the High Court
of Calcutta by judgment dated 12.1.1996, has set aside the judgment of the city civil court and
allowed the appeal of the respondent. The petitioner, being plaintiff in the trial court, has, therefore,
approached this Court in the present appeal.

2. The suit premises belong to the deceased Gokul Chand. On his death, it was inherited by his wife
Ram Moni Devi. She also died and the original plaintiff-Gangadhar Halder (who is proforma non-
contesting respondent No. 2 in this appeal), claims to be her successor-in-interest as the adopted
son. The present appellant is transferee of the suit property from the original plaintiff-Gangadhar
Halder.

3. The contesting respondent resisted the suit claiming to be in possession of the suit premises as
tenant. Apart from leading oral evidence to prove tenancy, he produced rent receipts marked as Exs.
A, A-1, & A-2. An Agreement of tenancy dated 12.12.1970 marked as Ex-C was also produced to
prove his status as tenant in the suit premises.

4. The main question raised by the appellant before this Court is on the admissibility and evidentiary
value of the three rent receipts relying on which the High Court has dismissed the suit.
5. In paragraphs 8 & 9 of the plaint, anticipating the plea of the defendant, following averments are
made :-

"8. That the defendant is a near relation of Anil Kumar Gupta, tenant of the northern shop
room and was working in the said shop and became friendly with said Ram Moni Devi and the
plaintiff and after death of Gokul Chand he volunteered to help her in various pending
litigations and administration of the estate left by said Gokul Chand and said Ram Moni Devi,
an illiterate lady and the plaintiff being practically an illiterate man deposed utmost faith upon
the defendant.

9. That after death of plaintiff's adoptive father for looking after the village properties he
began to stay at his native village at Kashinagar and in his absence for conducting the
litigations at the instance of the defendant for authorising him to represent said Ram Moni
Devi the defendant took thumb impression of Ram Moni Devi on some blank stamp papers
and blank papers with one or two signatures of the plaintiff also thereon." [Underlining for
pointed attention]

6. The defendant Birendra Kumar Jaiswal in the written statement made specific reference to the
rent receipts issued in his favour by landlady late Ram Moni Devi with thumb impressions on the
stamps affixed on them and endorsements of the plaintiff by putting his signatures on the back
portion of those rent receipts. The defendant thus denied the allegation of the plaintiff that he had
trespassed into the suit premises taking advantage of the absence of the original plaintiff-Gangadhar
Halder.

7. The specific plea of the defendant based on the rent receipts contained in paragraph 16 of the
written statement reads thus :-

"16. The allegations contained in para 9 of the plaint are specifically denied. The defendant
have no concern or any knowledge about the plaintiff or that the plaintiff was adopted son of
Gokul Chand. It is absolutely false that the defendant took thumb impression of Ram Moni
Devi on some stamp blank paper. As a matter of fact, the defendant was the monthly tenant
under Smt. Ram Moni Devi, in respect of two rooms of the ground floor at 76, Amherst
Street, Calcutta-9, at a monthly rental of Rs. 100/- according to English Calender. At the time
of payment of rent the rent receipts were also endorsed by the plaintiffs by putting his name.
The defendant further states that on the request of Ram Moni Devi, he paid Rs. 5,200/- on a
pro-note dated 21.7.1971 and after receiving the said amount the said Ram Moni Devi duly
put her left thumb impression and the said pro-note was also signed by the plaintiff as a
witness."

8. Despite the above specific plea of tenancy based on the rent receipts taken by the defendant in
the written statement, the plaintiff did not make any consequential amendment to his plaint and
offered no explanation how blank printed rent receipts came to be thumb marked and signed on
their back portions by the plaintiffs.

9. On the above pleadings, the parties went to trial. On the question of admissibility of the rent
receipts, the Order No. 53 of the trial Court dated 3.9.82 (wrongly mentioned by the High Court as
dated 5.9.82) reads as under :-

"53/3.9.82. ...........................PW-2 Gangadhar Halder is examined and cross-examined.

Documents are marked as Exs. A(2) and B-B(1) on admissions. No other witnesses are
present today. Adjourned to 7.9.1982 for further hearing."

10. The trial court on appreciation of oral and documentary evidence on record came to the
conclusion that the defendant had somehow access to the rent bills kept by plaintiff-Gangadhar
Halder and those seem to have been utilised for fabricating the rent receipts. The relevant portion of
the finding of the trial court reads thus:-

"The evidence on record, therefore, shows that defendant Biren Jaiswal had access to the
rent bill kept by Gangadhar. The evidence on record further shows that defendants utterly
failed to prove formally rent receipts dated 18th March, 1972, 2nd Feb., 1974 and 8th May,
1976, and the genuineness of these rent receipts. Considering the facts of the case, I am
inclined to observe that the rent receipts produced by the defendant have been manufactured
by him on abusing a faith reposed on him by plaintiff Gangadhar Halder." [Underlining to
highlight the conclusion]

11. The Division Bench of High Court, in appeal, re-appreciated the oral and documentary evidence
and reversed the finding of the trial court. On the admissibility and reliability of the disputed rent
receipts, the High Court made the following comments in paragraph 7 of its judgment :-
 "7. Upon consideration of the rival submissions it appears to us that the propriety of the
decisions of the learned trial judge hinges on our conclusion about the status of the
defendant. The defendant has claimed a tenancy and in support thereof rent receipts have
been produced, admitted signatures whereon were of Gangadhar Halder and thumb
impressions of Ram Moni Devi could not be shown to be not genuine. The only ground on
which such receipts have been discarded by the learned trial judge is a finding of fraud by
conversion of blank stamp papers into rent receipts through perpetration of fraud in that way
was never pleaded in the plaint. It is well settled that a case which has not been pleaded in
the plaint cannot be made out by evidence. It is also well settled that signatures to the
documents having been admitted or proved the contents thereof automatically go into
evidence, when the documents were admitted into evidence without objection (See Order No.
53 dated 5.9.1981) (vide AIR 1972 S.C. 608 P.C. - Purushothama Reddiar, Appellant v. S.
Perumal, Respondent). The same reasonings apply to the agreement in question. If the
existence and genuineness of the rent receipts cannot be doubted then the existence of the
agreement also has to be accepted because of its consistency in facts. According to our view,
therefore, the net effect of the above renders the case of tenancy as pleaded by the
defendant credible and the case of the plaintiff of the defendant being trespasser cannot but
has to be rejected. We do not agree with the reasonings of the learned trial judge because his
entire approach was vitiated by non-consideration of absence of specific plea of fraud and
surmises and presumption." [Underlining to add emphasis]

12. The main thrust of the argument strenuously advanced by the learned counsel appearing for the
plaintiff as appellant is that mere admission of the signatures of the plaintiff on the back portion of
the rent receipts and their marking as exhibits by the court cannot be taken as due proof of
execution of the rent receipts by the original landlady Ram Moni Devi. It is argued that the
defendant failed to lead any evidence to prove writings on the rent receipts and their due execution
and issuance by the landlady with her thumb impression. It is argued that exhibits are marked on
the admitted signatures of the plaintiff on the back portion of the rent receipts and such marking
could not be taken to be proof of the due execution and issuance of the rent receipts. Leaned
counsel contends that marking documents as exhibits and their proof are two different legal
concepts. Reference is made to Section 66 of the Evidence Act and reliance is placed on Dattatraya
v. Rangnath Gopalrao Kawathekar (dead) Thr. LRs. [AIR 1971 SC 2548]; Kamji Dayawala
& Sons (P) Ltd. v. Invest Import [1981(1) SCC 80]; and Om Prakash Berila & Anr. v. Unit
Trust of India & Ors. [AIR 1983 (Bombay) 1].

13. Learned counsel appearing for the contesting respondent supported the judgment of the High
Court and submitted that the plaintiff having not disputed his signatures on the back portion of the
three rent receipts and the documents having been admitted and marked as exhibits by order No. 53
dated 3.9.82 of the trial Court, there was no necessity to lead any further evidence by the defendant
to prove writings on the rent receipts and their due execution in favour of the tenant by the
landlady.

14. We have purposely reproduced the relevant parts of the pleadings of the plaintiff in the plaint
and of the defendant in the written statement to show the rival cases respectively set up by the
contesting parties. At the earliest stage, in the written statement, the defendant has clearly pleaded
that he is in occupation of the suit premises on a monthly rental of Rs. 100/- per month and had
been paying rent and obtaining rent receipts which were thumb marked by the original landlady late
Ram Moni Devi and signed on the back by the original plaintiff-Gangadhar Halder.

15. As seen above, it was pleaded in the plaintiff that certain blank stamp papers thumb marked and
signed by the plaintiff were given to the defendant authorising him to represent them in various
pending litigations. Even after the specific plea in the written statement of the defendant claiming
status of a tenant on the basis of rent receipts, the pleading in the plaint were not amended by the
plaintiff to explain how on back of printed rent receipts, he happened to put his signatures. No
consequential amendment was made in the plaint taking a plea of fraud and forgery of rent receipts.
There is also no evidence to that effect.

16. Reliance is heavily placed on behalf of the appellant on the case of Ramji Dayawala & Sons (P)
Ltd., (supra). The legal position is not in dispute that mere production and marking of a documents
as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be
proved by admissible evidence that is by the `evidence of those persons who can vouchsafe for the
truth of the facts in issue.' The situation is, however, different where the documents are produced,
they are admitted by the opposite party, signatures on them are also admitted and they are marked
thereafter as exhibits by the court. We find no force in the argument advanced on behalf of the
appellant that as the mark of exhibits has been put on the back portions of the rent receipts near the
place where the admitted signatures of the plaintiff appear, the rent receipts as a whole cannot be
treated to have been exhibited as an admitted documents.

17. We have already reproduced above the contents of the order No. 53 dated 3.9.82 of the trial
Court. The appellant cannot be allowed to question the correctness of the said order. The documents
were admitted and then exhibited. The plaintiff did not dispute his signatures on the back of them.
There was, therefore, no further burden of proof on the defendant to lead additional evidence in
proof of the writing on the rent receipts and its due execution by the deceased landlady.

18. The High Court rightly took a view that in face of the specific plea of tenancy by the tenant
based on rent receipts, onus of proof, in fact, lay on the plaintiff to explain how blank printed rent
receipts came to be signed by him on their back portions. We have extracted above the relevant
pleadings in the plaint. What has been pleaded is that certain signed stamped blank paper were
given to the defendant to be used for the pending litigations of the landlady and for administration of
her estate. The plaintiff failed to lead any evidence to show what were those pending litigations and
what was the occasion and necessity to sign printed blank receipts at their back by the plaintiff.

19. The High Court being the first court of appeal was fully within its power to re-examine and re-
appreciate the documentary and oral evidence. It could come to a conclusion contrary to the one
reached by the trial Court. As discussed above, we find that the High Court was fully justified in
taking a contrary view as it did and upsetting the judgment of the trial court resulting in dismissal of
the suit. In the result, the appeal fails and is, accordingly, dismissed but in the circumstances, we
leave the parties to bear their own costs in this appeal.

Appeal dismissed.
 Product S.No.372671553

This judgement ranked 2 in the hitlist.

L.I.C. of India v. Ram Pal Singh Bisen (SC) : Law Finder Doc Id # 208871

2010(2) SLR 792 : 2010(3) JT 54 : 2010(4) SCC 491 : 2010(3) ICC 32 : 2010(88) AIC 120 : 2010
LLJ 57 : 2010(2) R.C.R.(Civil) 459 : 2010(2) Recent Apex Judgments (R.A.J.) 351 : 2010(2) S.C.T.
217 : 2010(3) MLJ 1370

SUPREME COURT OF INDIA

Before :- B. Sudershan Reddy and Deepak Verma, JJ.

Civil Appeal No. 893 of 2007. D/d. 16.03.2010.

L.I.C. of Inida & Anr. - Appellants

Versus

Ram Pal Singh Bisen - Respondent

For the Appellants :- P.S. Patwalia, K. Ramamoorthy, Sr. Advs., Ms. Indra Sawhney, Advocates.

For the Respondent :- Ms. Chandan Ramamurthi, Advocates.

A. Civil Procedure Code, Order 13, Rules 4 and 7 - Marking an exhibit - Admission of
document - Mere marking of exhibit on a document does not dispense with its proof,
which is required to be done in accordance with law.

Further held :

Under the Law of Evidence also, it is necessary that contents of documents are required to
be proved either by primary or by secondary evidence - At the most admission of
documents may amount to admission of contents but not its truth.

[Paras 26, 27 and 31]

B. Life Insurance Corporation of India, (Staff) Regulations, 1960, Regulation 40 -

Constitution of India, Articles 311 and 16 - Natural Justice - Dismissal of an officer of LIC -
The officer reinstated with back wags on account of denial of opportunity to him in
Departmental enquiry - Contention that order directing reinstatement with full back wags
would amount to rewarding a dishonest officer - But looking to the manner in which the
case was conducted in the Trial Court, nothing can be done to grant any relief to the
appellants - Contention repelled.

[Para 32]

C. Evidence Act, Section 103 - Burden of proof - Admission - Onus lies on plaintiff to prove
his case - Failure to prove the defence does not amount to an admission nor does it
reverse or discharge the burden of proof of the plaintiff but still the duty cast on the
defendants has to be discharged by adducing oral evidence, which the appellants have
miserably failed to do.

[Para 25]

JUDGMENT

Deepak Verma, J.- Ignorance is a bliss, especially in the vast field of law, stands established from
the narration of facts of this appeal as would fully expose it. Against findings of fact vide judgment
and decree recorded by Additional District Judge No. 2, Ajmer in Civil Suit No. 93 of 1982 (10/80),
decided on 28.5.1993, confirmed in S.B. First appeal No. 178 of 1993 by learned Single Judge of the
High Court of Judicature of Rajasthan at Jaipur and further affirmed in Special Appeal (Civil) No. 42
of 1996 by Division Bench of the said Court, decided on 30.9.2005, unsuccessful
appellants/defendants are before us, challenging the same on variety of grounds.
2. Needless to say the facts unfolded before us from the record as well as during the course of
hearing reveal a sorry state of affairs as to the manner in which suit had been contested in the trial
court by the appellants herein, abutting gross negligence and callous manner, not even adhering to
the provisions of the Code of Civil Procedure and the Indian Evidence Act, yet challenging the same
before this Court, even after having lost from all courts.

3. Thumb-nail sketch of the facts of the case are as under :

4. Respondent herein original plaintiff was appointed by the appellants/defendants on probation as a

Development officer on 5.4.1964. He was confirmed on the said post on 1.4.1966. It is not in
dispute that his service conditions were regulated by Life Insurance Corporation of India (Staff)
Regulations, 1960 (hereinafter shall be referred to as "Staff Regulations") framed in exercise of
powers conferred under clause (b) of sub- section (2) of Section 49 of Life Insurance Corporation
Act, 1956 (hereinafter referred to as the "Act").

5. Charge sheet dated 16.4.1974 imputing six charges was served on him. He was also placed under
suspension. Supplementary charge sheet was also served on him on 21.10.1974. Mr. R.S.
Maheshwari was appointed as Inquiry Officer, who after completion of inquiry proceedings furnished
his report to Disciplinary Authority on 29.01.1976. On the basis of this, respondent was served with
show-cause notice on 23.2.1976 stating inter-alia that in view of the fact that some of the serious
charges stood proved against him, why order of dismissal from service be not passed against him.

6. Respondent submitted his reply to the show cause notice on 02.04.1976, pointing out
irregularities committed during the course of inquiry by the Inquiry Officer. His categorical case in
reply was that he has not been given adequate, proper, reasonable and sufficient opportunity of
hearing during the domestic inquiry. Therefore, the whole inquiry stood vitiated on the principles of
natural justice. It deserves to be quashed and no action on such an inquiry report can be taken
against him.

7. However, without taking note of the submissions of the respondent, appellants by non speaking
order and further without disclosing any opinion, on the basis of which respondent was held guilty of
charges levelled against him, arrived at a conclusion for his dismissal from service vide order dated
11.5.1976.

8. Feeling aggrieved and dissatisfied, the respondent was constrained to prefer a departmental
appeal under Regulation 40 of Staff Regulations but that too met the fate of dismissal vide order
dated 20.12.1976.

9. He then submitted further mercy appeal before the Chairman of LIC but without any favourable
result as the same came to be dismissed on 12.10.1977.

10. Feeling aggrieved by the aforesaid orders passed by appellants herein, respondent as plaintiff
was constrained to file a suit, as an indigent person before Additional District Judge No. 2, Ajmer, for
declaration that the departmental inquiry proceedings culminating in order of dismissal from service,
the appellate order, and further order passed by the Chairman of the appellant-Corporation as null
and void. Consequently, he be held entitled for reinstatement in service with all consequential
benefits. The learned trial Judge was pleased to grant permission to respondent-plaintiff to contest
the suit as an indigent person.

11. Appellants herein as defendants, filed written statement, inter alia, denying that no proper or
sufficient opportunity was afforded to the respondent. They further contended that despite grant of
sufficient opportunity, respondent took undue adjournments on various earlier dates or had
remained absent, and thereafter deliberately remained absent from the inquiry on 5.1.1976, thereby
compelling the Inquiry Officer to proceed ex- parte against him. Thus, even after grant of several
opportunities, he cannot legitimately contend that inquiry was hit by the principles of natural justice.

12. Thus, in general, they have denied averments of the plaint in toto and submitted that the suit
being mis-conceived deserves to be dismissed with costs.

13. On the strength of the pleadings of the parties, trial court was pleased to frame six issues. The
main and pertinent issue was with regard to the fact whether action of the appellants resulting in
respondent's dismissal from service, rejection of appeal and further representation, was in violation
of the principles of natural justice, if so, then to what reliefs respondent was entitled to.

14. Before proceeding further, it is pertinent to mention here that neither copy of Inquiry Report was
made available to respondent nor it was disclosed in the show cause notice as to on what premise
finding of guilt was recorded by Inquiry Officer or by the Disciplinary Authority while order of
dismissal came to be passed against him.

15. To prove his averments in the suit, respondent-plaintiff tendered himself in the witness box and
proved his case as also documents filed in support thereof. Surprisingly enough, appellants herein
did not lead any oral evidence, yet some of the documents filed by appellants were exhibited,
probably under misconception of law that they were not disputed in Court by respondent. It is also
necessary to mention here that appellants had also not served any notice of admission or denial of
documents on the respondent during trial as contemplated under Order 12 Rule 2 of the Code of
Civil Procedure (for short,`CPC').

16. After appreciating the evidence available on record, trial court was pleased to decide the issues
in favour of the respondent-plaintiff, holding therein that there was complete violation of principles
of natural justice inasmuch as no reasonable, proper and sufficient opportunity was afforded to him
to defend himself in the departmental enquiry. Similarly, the appellate order was passed in a
mechanical manner as also the order on representation of the respondent by Chairman. In the
result, the Trial Court passed a decree in favour of respondent, quashing and setting aside order of
dismissal from service with further direction to reinstate him alongwith all consequential benefits
including payment of salary for the intervening period.

17. Against this judgment and decree pronounced by trial court, appellants were constrained to file
regular first appeal before learned single judge of the High Court which also came to be dismissed by
him on 28.5.1993. Not being satisfied with the same, appellants carried Special Appeal before the
Division Bench of the said High Court which also came to be dismissed on 30.9.2005. Hence, this
appeal after grant of leave, by the defendants, having lost from all the three courts.

18. We have accordingly heard Mr. P.S. Patwalia, Mr. K. Ramamoorthy, learned Senior Counsel with
Mrs. Indra Sawhney, learned counsel for the appellants and Ms. Chandan Ramamurthi, learned
counsel for respondent and have critically examined the records.

19. It is pertinent to mention here that even though oral evidence lead by respondent plaintiff is not
on record, but on certified copy thereof, being supplied to us by learned counsel for appellants, we
have categorically gone through the same. It may be mentioned herein that in the same, there was
not even a whisper of suggestion made to the plaintiff that he had appeared in the office on
5.1.1976 to collect his suspension allowance yet on being informed by the inquiry officer, that his
inquiry too was fixed for the said date, therefore, he should come to attend it, on which respondent
had informed the Inquiry Officer that he would appear, after some time along with his witnesses. In
other words, even the defence that has been pleaded and set up by the appellants in their written
statement was not put forth to the respondent, while he was in the witness box.

20. Thus, the question that arises for consideration is whether in absence of any oral evidence
having been tendered by the appellants, and especially in absence of putting their own defence to
the respondent during his cross examination in the Court, what is the effect of documents filed by
appellants and marked as Exhibits.

21. Despite our persistent requests made to the learned counsel appearing for the appellants they
have not been able to show compliance of Order 12 Rule 1 and 2 of the CPC, meaning thereby that
there has not been any compliance thereof.

22. Order 12, Rules 1 and 2 appearing in the Code of Civil Procedure reads as thus :

= "ORDER XII

= ADMISSIONS

1. Notice of admission of case. - Any party to a suit may give notice, by his pleading, or
othewise in writing, that he admits the truth of the whole or any part of the case of any other
party.

2. Notice to admit documents. - Either party may call upon the other party to admit, within
seven days from the date of service of the notice any document, saving all just exceptions;
and in case of refusal or neglect to admit, after such notice, the costs of proving any such
document shall be paid by the party so neglecting or refusing, whatever the result of the suit
may be, unless the Court otherwise directs; and no costs of proving any document shall be
allowed un- less such notice is given, except where the omission to give the notice is, in the
opinion of the Court, a saving of expense."

23. It is also necessary to mention here that Rule 2A of Order 12 of the CPC deals with the situation
where notice of admission as contemplated in Order 12 Rule 2 of the CPC has been served but is not
denied then the same shall be deemed to have been admitted. Similarly, Rule 3A of the aforesaid
Order grants power to the Court to admit any document in evidence, even if no notice has been
served. The aforesaid provisions of law have been brought in the Code vide Amendment by Act No.
104 of 1976, w.e.f. 1.2.1977.

24. Records do not reveal that any such procedure was adopted either by the appellants or by the
Trial Court to prove the documents filed by the appellants and mark them as Exhibits. Thus, no
advantage thereof could be accrued to the appellants, even if it is assumed that said documents
have been admitted by respondent and were then exhibited and marked.

25. No doubt, it is true that failure to prove the defence does not amount to an admission, nor does
it reverse or discharge the burden of proof of the plaintiff but still the duty cast on the defendants
has to be discharged by adducing oral evidence, which the appellants have miserably failed to do.
Appellants, even though a defaulting party, committed breach and failed to carry out a legislative
imposition, then had still to convince this Court as to what was the just cause for doing the same.
Thus looking to the matter from any angle, it is fully established that appellants had miserably failed
to prove and establish their defence in the case.

26. We are of the firm opinion that mere admission of document in evidence does not amount to its
proof. In other words, mere marking of exhibit on a document does not dispense with its proof,
which is required to be done in accordance with law. As has been mentioned herein above, despite
perusal of the record, we have not been able to come to know as to under what circumstances
respondent plaintiff had admitted those documents. Even otherwise, his admission of those
documents cannot carry the case of the appellants any further and much to the prejudice of the
respondent.

27. It was the duty of the appellants to have proved documents Exh. A-1 to Exh. A-10 in accordance
with law. Filing of the Inquiry Report or the evidence adduced during the domestic enquiry would not
partake the character of admissible evidence in a court of law. That documentary evidence was also
required to be proved by the appellants in accordance with the provisions of the Evidence Act, which
they have failed to do.

28. It is also worthwhile to mention here that one of the complainant Rattan Lal who was examined
as witness during the departmental Inquiry was not cross-examined by respondent as he was not
afforded proper opportunity in this regard.

29. Learned counsel for the appellants has strenuously submitted before us that on 5.1.1976,
respondent deliberately, intentionally and with oblique motives remained absent from the
Departmental Inquiry proceedings as on the same very day he had come to the office to collect his
dues, was then informed about the proceedings fixed for the same day but he still remained absent.
The said order sheet is neither signed by the respondent nor was this defence put up to him when he
was in the witness box in cross-examination.

30. From the narration of aforesaid facts and law, we are of the considered opinion that the courts
have committed no error in coming to the conclusion that respondent was denied opportunity of
hearing, that being so, whole proceedings stand vitiated by non-adherence to the principles of
natural justice.

31. Under the Law of Evidence also, it is necessary that contents of documents are required to be
proved either by primary or by secondary evidence. At the most, admission of documents may
amount to admission of contents but not its truth. Documents having not been produced and marked
as required under the Evidence Act cannot be relied upon by the Court. Contents of the document
cannot be proved by merely filing in a court.

32. Learned counsel for the appellants Mr. P.S. Patwalia in his usual, polite yet firm vehemence
contended that looking to the serious allegations levelled against him, the order of the Trial Court
directing reinstatement with full back wages, which stood confirmed by Appellate Courts, would
amount to rewarding a dishonest officer. But looking to the manner in which the case was conducted
in the Trial Court, nothing can be done to grant any relief to the appellants. Respondent has been
able to successfully prove that there was denial of opportunity to him in the Departmental Enquiry.
In this view of the matter, all subsequent actions taken thereto, would automatically fail.

33. In this view of the matter, we are of the opinion that the courts below committed no error in
decreeing the suit of the respondent.

34. It may further be noted that respondent has now retired in the year 2000, after having attained
age of superannuation. Thus, the question of his re- instatement does not arise. It could only be a
case of some monetary benefit to him. In view of his superannuation, it will neither be fit nor proper
to direct a fresh inquiry to be conducted against him.

35. Thus, the appeal being devoid of any merit and substance is dismissed. Appellants to bear the
cost of the litigation throughout.

36. Counsel's fee Rs. 10,000/-.

Appeal dismissed.
 Product S.No.372671553

This judgement ranked 17 in the hitlist.

U.N. Bhardwaj v. Y.N. Bhardwaj (Delhi) : Law Finder Doc Id # 227358

2010(173) DLT 483 : 2011(1) R.C.R.(Civil) 704

DELHI HIGH COURT

Before :- S. Ravindra Bhat, J.

I.A. Nos. 3761 of 2005, 3762 of 2005, 10176 of 2006, 10923 of 2007, 13834 of 2007 and 4380 of
2010 in CS (OS) 641 of 2005 with I.A. Nos. 3250 of 2010 and 4379 of 2010 in C.S. (OS) 642 of
2005. D/d. 18.10.2010.

Shri U.N. Bhardwaj - Plaintiff

Versus

Shri Y.N. Bhardwaj and others - Defendants

For the Plaintiff :- Rahul Gupta and Shri Shekhar Dasi, Advocates.

For the Defendants No. 1 :- Sh. Rishi Manchanda, Advocate.

For the Defendants No. 2 :- Sh. B.S. Maan and Sh. Jai Prakash, Advocates.

For the Defendants Nos. 3 to 6 :- Sh. Chetan Sharma, Sr. Advocate with Sh. Siddharth Singla and
Ms. Divya Roy, Advocates.

For the Defendants Nos. 7 to 11 :- Sh. A.K.D. Sayare, for Sh. Harish Kumar, Advocates.

A. Hindu Succession Act , 1956, Section 6 (as amended in 2005) - Female Hindu - Right to
property - Female Hindu heirs are entitled to the same share in ancestral or HUF
properties, as male heirs - Two exceptions, indicated.

[Para 21]

B. Hindu Succession Act , 1956, Sections 5 and 6 - Female Hindu - Bari rights - Priestly
office - Entitlement of - Bari rights are partiable, as well as alienable - Unless contrary is
proved, such rights are not linked or bounded with obligation to perform puja or worship -
Female Hindus can inherit priestly office, as well as bari rights - Even if such bari rights
entail worship obligations, they can be performed by others, employed by such female
heirs, for such purpose.

[Para 24]

C. Hindu law - Hindu religion - What is - Case law discussed.

[Para 28]

D. Hindu law - Religious denomination - Essential pre-requisites - Principles discussed.

[Para 29]

E. Constitution of India, Articles 25 and 26 - Hindu Succession Act , 1956, Sections 4, 5

and 6 - Female Hindu - Bari rights - Entitlement of - Denomination rights - Mandir Shri
Kalke Ji - While worship of shakti or Devi, may be common, as it celebrated "female"
power that alone is an insufficient premise to conclude existence of a denomination -
Temple dedicated to Devi worship - Other than that, there is no evidence to establish that
it is part of a denominational order, which possess a common organization, with a set of
common practices, and follow rituals, which are shared by other temples and institutions -
Its customs and rituals are not rigid - Though family members and not all of them, have to
follow or observe certain practices yet Shastric knowledge is not essential - Temple is a
non denominational one, though dedicated to Devi worship - There is no rule that one who
secures that right has to invariably perform religious rituals or worship, as a condition, or
as an essential part of enjoyment of the bari right.

[Para 30]

F. Constitution of India, Article 13 - Hindu Succession Act , 1956, Sections 5 and 6 -

Female hindu - Bari rights - Whether customs debarring female heirs from participating in
bari benefits - On facts, held, no.

[Para 31]

G. Constitution of India, Article 13 - Laws in force in India, immediately before the

commencement of the Constitution, inconsistent with or in the derogation of fundamental
rights, to the extent inconsistency, are void.

[Para 32]

H. Constitution of India, Article 15 - Hindu Succession Act , 1956, Sections 4 and 6 - Bari
rights - Female Hindu - Entitlement of - Right to worship - Alienation of - Interpretation of
law - Court is under obligation to avoid the odium of a gender discriminatory
interpretation, to any law, which denied property right to the women - Bari rights can be
enjoyed by female Hindus - Right to worship can be alienated.

[Para 32]

Cases Referred :

Anath Bandhu De v. Krishna Lal Das, AIR 1979 Cal 68.

Angurbala Mullick v. Debabrata Mullick, AIR 1951 SC 293 : (1951) S.C.R. 1125.

Ashok Kumar Bara v. Simi Katyal, 91(2001) DLT 82.

Badri Nath v. Mst. Punna, 1979(3) SCC 71.

Balmakund v. Tula Ram, AIR 1928 All 721.

Bhabatarini v. Ashalata, (1943) L.R. 70 I.A. 57.

G. Sekar v. Geetha, 2007(5) RCR(Civil) 118 : 2009(6) SCC 99.

Ganesh v. Lal Behary, (1936) L.R. 63 I.A. 448.

Ganga Jeevan Sharam v. Rakesh Kumar, Suit No. 15 of 1976.

Gossamee Sree Greedharreejee v. Rumanlolljee Gossamee, 16 I.A. 137.

Krishan Lal Kohli v. V.K. Khanna, 1993(2) RCR(Rent) 530 : 52 (1993) DLT 87.

Mahamaya Debi v. Haridas Haldar, (1915) ILR 42 Cal 455.

Mahant Pirthi Nath, Chela Mahant Pancham Dass v. Tula Ram, Suit No. 61/69.

Manohar Mukherjee v. Bhupendra Nath Mukherjee, 37 CWN 29 : I.L.R. 60 Cal. 452 : A.I.R. 1932 Cal
791 : 1875 14 BLR 166.

Mitta Kunth Audhicarry v. Neerunjun Audhicarry, (1875) 16 B.L.R. 166.

Monohar Mukherjee v. Bhupendra Nath Mukherjee, 37 CWN 29 : AIR 1932 Cal 791 : I.L.R. 60 Cal
452.

Nand Kumar Dutt v. Ganesh Das, AIR 1936 All 131.

Nellor Marthandam Vellalar v. Commissioner, Hindu Religious and Charitable Endowments, 2003
(10) SCC 712.

Raj Kali Kuer v. Ram Rattan Pandey, AIR 1955 SC 493.

Ram Rattan v. Bajrang Lal, (1978) 3 SCR 963.

Sastri Yagnapurushadji v. Muldas Bhudardas Vaishya, AIR 1966 SC 1119.

Seshammal v. State of Tamil Nadu, (1972)2 SCC 11.

Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi v. State of U.P., 1997(4) SCC 606.

Sri Venkataramana Devaru v. State of Mysore, (1958)1 SCR 895.

Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri
Shirur Mutt, AIR 1954 SC 282 : (1954) S.C.R. 1005.

Umayal Achi v. Lakshmi Achi, (1945) F.C.R. 1.

JUDGMENT

S. Ravindra Bhat, J. - This order will dispose of some of the pending applications pertaining to the
proportion of sharing the proceeds from the Bari falling to members of the branch of the family to
which the parties belong in respect of the various festivals and events that occur from time to time
at the Mandir Shri Kalka Ji (hereafter "the temple") in New Delhi.

2. The brief facts necessary for the purpose of this order are that the plaintiff and the first two
defendants are brothers being the sons of Late Shri R.N. Bhardwaj and the third, fourth and fifth
defendants - in both the suits- are their sisters; the sixth defendant is their mother, (being the legal
heirs of Late Shri R.N. Bhardwaj). The other defendants are the descendents of Late Shri R.N.
Bhardwaj's brothers, i.e. Prayag Dutt and Hansraj. In both the suits, decree for partition has been
claimed by the common plaintiff, i.e. U.N. Bhardwaj. This claim is supported by his brother the first
defendant Shri Y.N. Bhardwaj. The narrow controversy, which this order proposes to decide, is with
respect to the shares of the female heirs of Late Bhardwaj, i.e. his daughters Ms. Shashibala, Ms.
Manju Mudgal and Ms. Arun Sharma and the share of his widow Smt. Chandrakanta, in the "bari"
(i.e. turn) rights enjoyed by the parties' family, in the temple.

3. In CS (OS) 641/2005, division of five immovable properties described in the schedule and
movable propertiess compromising of gold jewellery and cash, is sought. In CS (OS) 642/2005, on
the other hand, partition of properties held jointly by Late Shri R.N. Bhardwaj with his brothers is
claimed. Shri R.N. Bhardwaj died on 11.9.1991. The subject matter of this suit is a plot of land being
Khasra No. 1142 at Mehrauli. It is averred that a partition deed was executed as between the father
of Shri Hansraj, i.e. Shri Jagan Nath and Shri Hansraj; Shri Prayag Dutt, son of Shri Krishan, brother
of Shri Jagan Nath were also parties. Although the suit averments and the corresponding pleadings
in the written statement deal with various other factual disputes concerning the acquisition of the
property and as to the existence of partition deed, those questions are not relevant for the present
purposes except to record that during the interregnum period after the institution of both the suits
whenever the occasion arose, this Court has consistently made a series of orders recording whereby
during the occurrence of Baris, the highest bidder (from amongst the parties) was conferred the
right to collect all the offerings and of that 50% of the bid amount was to be given to defendant nos.
7-13 in Suit No. 642/2005; they are also parties in Suit No. 641/2005. The Court had been recording
that the other parties, i.e. the brothers (sons of R.N. Bhardwaj) would be entitled to receive 1/7th
share of such 50% share each and that the female heirs of Late R.N. Bhardwaj, i.e. the third to sixth
defendants, (the daughters and widow) were entitled to receive ' One Lakh each, as part of an
interim arrangement. This arrangement was first recorded by the Division Bench's order dated
31.03.2006.

4. The pleadings were completed in both the cases and on 20.04.2009 issues were framed in CS
(OS) 642/2005. Similarly, issues were also framed in CS (OS) 641/2005. The question as to whether
the Sewa Bari of the temple is capable of being partitioned was also framed as an issue in CS (OS)
642/2005 as the plaintiff had alleged that the daughters or widow of Late Shri R.N. Bhardwaj being
the female heirs were dis-entitled to any share.

5. The plaintiff moved an I.A. No. 3250/2010 claiming appropriate orders for disbursement of the
proceeds of the Bari falling due in March-April, 2010. Notice was issued and on 23.03.2010, the
following order was made by the Court in both the suits.

"After hearing counsel for the parties and considering the interim order, which is prevailing,
in such circumstances, by virtue of the directions of the Division Bench, dated 31.03.2006,
this Court is of opinion that the highest bidder would get the right to collect the offerings and
the tehbazari. The 50% of the bid amount shall be handed over to the defendant Nos.7-13.
The plaintiff and defendant Nos.1&2 are brothers, defendant Nos.3-5 are the sisters of the
plaintiff and defendant No. 6 is their mother. The question of disbursement or suitable
apportionment of the balance 50% shall be decided on the next date of hearing.
 It is agreed by the learned counsel for the parties that the question as to the hereditary right
to such collection or otherwise shall be decided finally on the next date of hearing on the
existing documents and materials on the record. The parties are directed to ensure
compliance of the above order; in other words, 50% of the bid amount shall be deposited in
the Court by the successful bidder, within two days of receiving the same."

On the subsequent date of hearing, i.e. 21.04.2010, the plaintiff was granted liberty to place on
record some documents, which according to him were relevant. That order is in the following terms :

"The case is fixed for hearing on a question which is spelt-out by this Court in its order dated
23.03.2010. Learned counsel for the plaintiff states that certain essential documents, i.e.
copies of judgments and decrees in four previous legal proceedings and suit are material and
seeks leave to place the same on record. Learned counsel for the defendants have no
objection. In the circumstances, the written synopsis with annexures containing copies of
judgments dated 04.04.1973, 01.02.1974 and 31.10.1981 in suits and revision proceedings
are hereby taken on record. Arguments heard on behalf of plaintiff."

6. The matter was subsequently heard on several dates, i.e. 22.04.2010, 28 & 29.04.2010 and the
applications were reserved for orders. On 22.04.2010, the statement of the first defendant (who
wished to depose in the case about the rituals and religious practices pertaining to the temple) was
recorded.

7. It is contended by the plaintiff and the first defendant (hereafter called as "the brothers") that the
customs and rituals followed by the parties from time immemorial are that only male descendents
within the family are entitled to the proceeds of the Bari since they are entitled to perform the puja
and other rituals in the temple. Reliance is placed in this regard on the judgment rendered by the
Sub-Judge First Class, Delhi in Suit No. 61/69 (titled as Mahant Pirthi Nath, Chela Mahant
Pancham Dass v. Tula Ram) as well as the judgment by the Civil Court in Suit No. 15/1976
(titled as Ganga Jeevan Sharam v. Rakesh Kumar) dated 31.10.1981. The judgment of the
Sub-Judge in Suit No. 61/69 had referred to a previous order of one Bhaskar Rao, Revenue Assistant
dated 10.05.1877. The Court held that the Revenue Court's order was binding as it was between
parties and also referred to the arrangement within the temple as regards sharing of proceeds
during the various Baris. The Court also noted that there was a settlement deed dated 15.07.1843,
which had been referred to in the Revenue Assistant's judgment. The division or sharing of the
offerings and the Baris within the temple - recorded in the settlement of 1843 and given effect to by
the Revenue Assistant's order, as well as by the Civil Court - were that such proceeds, rights and
entitlements were to be divided into four shares.

8. The Civil Court's judgment discloses that the group of Pujaris performing Puja Sewa in the temple
and realizing Tehbazari, offerings etc. were divided into two Thoks, i.e. (1) Thok Jogiyan (i.e.
consisting of ascetics and sanyasis); they were entitled to a 4 Annas (48 Pies) share. The second
group was known as "Thok Brahmin", which was further divided into four thulas, i.e. (i) Thula
Bahadur (entitled to 3 Annas share = 36 Pies), (ii) Thula Rambux (entitled to 3 Annas share = 36
Pies), (iii) Thula Tansukh (entitled to 3 Annas share = 36 Pies), and (iv) Thula Jasram (entitled to 3
Annas share Pies). The total of all the said shares worked to One Rupee = 16 Annas (i.e. 64 paise =
192 Pies).

9. The brothers say that according to the family history Pt. Gopi Nath married Gauri daughter of Pt.
Umrao and Mrs. Bhullo. Pt. Umrao had Puja Sewa rights within Thula Bahadur. Pt. Umrao fell
seriously ill and due to advancing age he was unable to perform Sewa Puja. Therefore, he permitted
his son-in-law Pt. Gopi Nath (who belonged to the same Gotra "Bhardwaj") to perform Puja Sewa on
his behalf. Later, Pt. Umrao became blind and he mortgaged his Puja Sewa rights in Mandir Sri
Kalkaji in favour of Pt. Gopi Nath by a written document. He was unable to discharge the debt during
his life time. As a result, he alienated the Puja Sewa rights to his son-in-law, Pt. Gopi Nath. After his
death, (i.e. Gopinath's) those rights devolved upon and vested in his male descendants down the
line. The plaintiff is at pains to explain that Sewa Puja rights did not devolve either upon the widow
of Pt. Umrao or upon his daughter, i.e. Gauri after the death of Mrs. Bhullo. It is contended that till
1904 Pt. Gopi Nath continued performing Puja Sewa and was realizing the offerings along with other
brothers and cousins of Pt. Umrao after that, the share of Pt. Gopi Nath was separated and he was
independently performing Puja Sewa and realizing his share in the offerings which was 3 Paise = 12
Pies.

10. The brothers' main contention is that Puja Sewa and tehbazari and offerings etc. are integral to
each other and inseparable to the rituals and practices of the temple. According to them, the
customs from time immemorial enjoin only male Brahmins (Gotra "Bhardwaj") and members of
various Thulas can act as priests in the temple and they, to the exclusion of others, perform Puja
Sewa and receive their share of offerings and tehbazari etc. It is contended that the right and share
of Puja Sewa in Mandir Sri Kalkaji cannot be bequeathed. The plaintiffs argue that the married
daughters and their children have never acted as priests and are also not entitled to receive any
share in the offering etc. The custom (i.e. of Puja Sewa being performed by men alone since time
immemorial), say the brothers, has been accepted as valid and binding and women have never
performed Puja Sewa in the temple. This position was also accepted and confirmed by judgment
dated 31.10.1981 in civil suit being No. 15/76 titled Ganga Jeevan Sharan v. Rakesh Kumar
& Others.

11. The brothers submit that their turn for Puja Sewa comes once in two years (regular monthly
Bari) and once in 12 years (Laund Bari) and once in 10 years in the month of Chaitra (Shashmahi -
Navratra). They rely on the judgment dated 01.02.1974 in Suit No. 61/69 to the effect that the right
to perform Puja Sewa is not transferable and cannot also devolve by intestate or testamentary
succession upon females; one of the contentions being that such married daughters belong to
different Gotras. It is also submitted that it was during the pendency of this suit that the practice of
auctioning the Bari to the highest bidder began, through the Court's order. It is argued that the
three sisters do not belong to the Bhardwaj gotra, whose members alone can worship and partake in
baris and offerings, and that the sixth defendant, the mother is only entitled to claim maintenance
as her three sons are alive and are performing Puja Sewa and receive their respective share in the
tehbazari, offerings etc.

12. It is argued that the grant or recognition of succession and inheritance to the female members in
the offerings realized from the temple would lead to utter confusion and conflict with the customs
and traditions followed for last several hundreds of years. At the most, it shall be a matter of factual
dispute and only to be proved by trial and evidence produced by the parties as to whether the
female members at any point of time shall enjoy the rights of Sewa Puja and share in offerings and
tehbazari, etc. in view of the usage and custom for last hundreds of years. The brothers rely on the
decisions reported as Krishan Lal Kohli v. V.K. Khanna 1993(2) RCR(Rent) 530 : 52 (1993)
DLT 87 and Ashok Kumar Bara v. Simi Katyal, 91 (2001) DLT 82, and submit that prima facie
case should not be confused with title, and that where substantial issues arise, the parties should be
permitted opportunity to lead evidence in support of their case. It is further submitted that the third
to sixth defendants do not allege how and when rights of Sewa Puja arose in their favour and how
they performed or were deprived of their alleged rights.

13. The brothers submit that the right to offer puja and participate in baris, through exclusive puja
by the male members entitled to perform worship (such as the rights of a shebbahit or mahant) is
an integral part of the temple's customs and religious practices, which cannot be disturbed. Reliance
was placed on Articles 25 and 26 of the Constitution in support of this argument; it was contended
that such customs, which are integral or essential for the practice of the faith of the denomination
cannot be regulated by law. The plaintiff relies on the judgment reported as The Commissioner,
Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur
Mutt, AIR 1954 SC 282, where it was held that :

"The contention formulated in such broad terms cannot, we think, be supported. In the first
place, what constitutes the essential part of a religion is primarily to be ascertained with
reference to the doctrines of that religion itself. If the tenets of any religious sect of the
Hindus prescribe that offerings of food should be given to the idol at particular hours of the
day, that periodical ceremonies should be performed in a certain way at certain periods of the
year or that there should be daily recital of sacred texts or oblations to the sacred fire, all
these would be regarded as parts of religion and the mere fact that they involve expenditure
of money or employment of priests and servants or the use of marketable commodities would
not make them secular activities partaking of a commercial or economic character; all of
them are religious practices and should be regarded as matters of religion within the meaning
of article 26(b). What article 25(2)(a) contemplates is not regulation by the State of religious
practices as such, the freedom of which is guaranteed by the Constitution except when they
run counter to public order, health and morality, but regulation of activities which are
economic, commercial or political in their character though they are associated with religious
practices."

The brothers also rely on the judgment in Seshammal and Ors., etc. v. State of Tamil Nadu,
(1972) 2 SCC 11, which examines the practice of temples having priests or Archakas and their
unique role ordained by custom, particularly on the following observations :

"10 ..With the establishment of temples and the institution of Archakas, treatises on rituals
were compiled and they are known as 'Agamas'. The authority of these Agamas is recognised
in several decided cases and by this Court in Sri Venkataramana Devaru v. The State of
Mysore, (1958) 1 SCR 895 . Agamas are described in the last case as treatises of
ceremonial Law dealing with such matters as the construction of temples, installation of idols
therein and conduct of the worship of the deity. There are 28 Agamas relating to the Saiva
temples, the important of them being the Kaimi kagama the Karanagama and the
Suprabedagama. The Vaishnavas also had their own Agamas. Their principal Agamas were
the Vikhanasa and the Pancharatra. The Agamas contain elaborate Rules as to how the
temple is to be constructed, where the principal deity is to be consecrated, and where the
other Devatas are to be installed and where the several classes of worshippers are to stand
 and worship. Where the temple was constructed as per directions of the Agamas the idol had
to be consecrated in accordance with an elaborate and complicated ritual accompanied by
chanting of mantras and devotional songs appropriate to the deity. On the consecration of the
image in the temple the Hindu worshippers believe that the Divine Spirit has descended into
the image and from then on the image of deity is fit to be worshipped. Rules with regard to
daily and periodical worship have been laid down, for securing the continuance of the Divine
Spirit. The rituals have a two-fold object. One is to attract the lay worshipper to participate in
the worship carried on by the priest or Archaka. It is believed that when a congregation of
worshippers participates in the worship a particular attitude of aspiration and devotion is
developed and confers great spiritual benefit. The second object is to preserve the image
from pollution, defilement or desecration. It is part of the religious belief of a Hindu
worshipper that when the image is polluted or defiled the Divine Spirit in the image
diminishes or even vanishes. That is a situation which every devotee or worshipper looks
upon with horror. Pollution or defilement may take place in variety of ways. According to the
Agamas, an image becomes defiled if there is any departure or violation of any of the rules
relating to worship. In fact, purificatory ceremonies have to be performed for restoring the
sanctity of the shrine [1958] 1 SCR 895 . Worshippers lay great store by the rituals and
whatever other people, not of the faith, may think about these rituals and ceremonies, they
are a part of the Hindu Religious faith and cannot be dismissed as either irrational or
superstitious. In all these temples in which the images are consecrated, the Agamas insist
that only the qualified Archaka or Pujari step inside the sanctum sanctorum and that too after
observing the daily disciplines which are imposed upon him by the Agamas. As an Archaka he
has to touch the image in the course of the worship and it is his sole right and duty to touch
it. The touch of anybody else would defile it. Thus under the ceremonial law pertaining to
temples even the question as to who is to enter the Garbhagriha or the sanctum sanctorum
and who is not entitled to enter it and who can worship and from which place in the temple
are all matters of religion as shown in the above decision of this Cotirt.

11. The Agamas have also Rules with regard to the Archakas. In Saivite temples only a
devotee of Siva, and there too, one belonging to a particular denomination or group or Sub-
group is entitled to be the Archaka. If he is a Saivite, he cannot possibly be an Archaka in a
Vaishnavite Agama temple to whatever caste he may belong and however learned he may be
Similarly, a Vaishnavite Archaka has no place as an Archaka in a Saivite temple. Indeed there
is no bar to a Saivite worshipping in a Vaishnavite temple as a lay worshipper or vice versa.
What the Agamas prohibit is his appointment as an Archaka in a temples of a different
denomination .They only can touch the idols and perform the ceremonies and rituals. None
others, however, high placed in society as pontiffs or Acharyas or even other Brahmins could
touch the idol, do puja or even enter the Garbha Griha. Not even a person belonging to
another Agama is competent to do puja in Vaikhanasa temples. That is the general rule with
regard to all these sectarian denominational temples. It is, therefore, manifest that the
Archaka of such a temple besides being proficient in the rituals appropriate to the worship of
the particular deity, must also belong, according to the Agamas, to a particular denomination
Any State action which permits the defilement or pollution of the image by the touch of an
Archaka not authorised by the Agamas would violently interfere with the religious faith and
practices of the Hindu worshipper in a vital respect, and would, therefore, be prima facie
invalid under Article 25(1) of the Constitution."

14. It is submitted that the temple is denominational and established or dedicated for Devi worship.
The practices adopted by such denominational temples are eligible for protection, under Article 26.
In support of the contention, the plaintiff relies on the judgment in Sri Adi Visheshwara of Kashi
Vishwanath Temple, Varanasi and Ors. v. State of U.P. and Ors., 1997 (4) SCC 606, in the
following terms:

"The question is; whether Sri Kashi Vishwanath Temple is a denomination Temple and
whether the Act interferes with freedom of conscience and the right to profess, practise and
to propagate religion of one's choice and whether the devotees of Lord Vishwanath are
members of religious denomination and shall have the fundamental right to manage its affairs
in the matter of religion guaranteed under Articles 25 and 26 of the Constitution to
administer the properties of the Temple in accordance with law". In the Law Lexicon by P.
Ramanatha Iyer [1987 Reprint Edition] at page 315, the author says that "denomination"
means a class or collection of individuals called by the same name; a sect; a class of units; a
distinctively named church or sect as clearly of all denominations. The maxim Denomination
est a digniore means "Denomination is from the more worthy" (Burrill). "Denomination fieri
debet a digniorihus", another maxim means "denomination should be deduced from the more
worthy" (Wharton Law Lexican). Ramakrishna Mission had established educational institutions
to which approval and affiliation were granted by the Government and the University. The
 dispute arose as regards the composition of the Governing Body, viz., whether the
Government's nominee would be associated on a standard pattern" Ramakrishna Mission
claimed "minority" status being a denomination. In that perspective, this Court while rejected
the claim of the Mission as a minority institution under Article 30(1), upheld its denomination
character within the meaning of Article 26(a) of the Constitution. It was held that it being a
denomination was entitled to administer the educational institutions. Therein, the vires of the
statute did not come up for consideration in the context of the followers of Sri Ramakrishan
who are professing the line of teachings and doctrines of Sri Ramakrishna. The followers were
considered to be a denominational section of the citizens. The ratio therein, therefore, does
not apply to the facts of the present case."

15. The female heirs argue that the suit nowhere states anything about the religious or
denominational rights in respect of the Bari or the worship in the temple. It is pointed out that the
suit pertinently alleges only the following : -

"The ancestors of the plaintiff are members of Thula Bahadur and in that capacity have also
been performing and enjoying the Sewa Bari of Mandir Shri Kalka Ji as and when the said
Sewa Bari of Mandir Shri Kalka Ji fell to their share. After the deaths of Shri Rajinder nath,
Shri Prayag Datt and Shri Hans Raj their respective male descendants have been collectively
performing and enjoying the Sewa Bari of Mandir Shri Kalka Ji as and when the said Sewa
Bari of Mandir Shri Kalka Ji fell to their share. The offerings made by the worshippers to the
deity of Mandir Shri Kalka Ji have been shared in the ratio of one - half collectively by the
Plaintiff and his two brothers namely Shri Yogender Nath Bhardwaj and Shri Vipin Bhardwaj,
one-quarter collectively by the male descendants of late Shri Prayag Datt and one - quarter
collectively by the male descendants of late Shri Hans Raj. It is, therefore, submitted that this
Honble Court may be pleased to give legal effect to this continuously adopted practice by the
parties to the present suit."

16. It is argued that both the suits claim that Bari rights are partible. It is submitted that the female
heirs were impleaded subsequently, and no amendment was sought. The defendants further submit
that an overall reading of the suit would only suggest that according to the plaintiff the non-
assertion of the female heirs to participate in the Bari returns and rights has been claimed. However,
no custom or usage, much less a custom as is known, recognized and given effect to in law has been
either pleaded or established. The defendants further argue that by virtue of Section-4 of the Hindu
Succession Act, 1956 as amended in 2005 (in which Sub- Section-2 was repealed) every Hindu
female is entitled to same share as a male coparcener in HUF property. Such being the case, the
female heirs, in the event of partition, are entitled to claim Bari rights in respect of the branch of
R.N. Bhardwaj as his sons. The defendants placed reliance upon the judgment reported as Badri
Nath & Anr. v. Mst. Punna & Ors, 1979 (3) SCC 71 to say that the Bari rights are nothing but
species of property rights and, therefore, capable of partition.

17. The defendants next argue that the materials available on the record, particularly, by way of
Y.R. Bhardwaj's statement made before the Court unambiguously point to there being no need for
any qualification to be entitled to the benefits of Bari. It is argued that the established facts point to
the peculiarity of the parties' family being entitled to worship and Bari rights by virtue of mortgage
alienation to a son-in-law by one of their common ancestors. If indeed the plaintiffs are right in
contending that the right to worship and the concomitant benefits of Bari participation are heritable
only by males and non-alienable, the very source of such rights negates the argument.

18. Learned counsel submitted that the first defendant's statement (made to the Court on oath)
clearly establishes that Shastric knowledge is unnecessary, to conduct worship in the temple; nor is
there any usage that certain types of mantras are to be chanted. The statement only points to the
entitlement of a certain class of Brahmins to perform the puja; so far as the Bari and right to auction
the tehbazari rights during certain festive occasions are concerned, that inhere, or vest in the family
to which the parties belong. In these circumstances, the plaintiff's argument about the unalterable
customs, which entitle only males within the family to perform puja and also to the concomitant Bari
rights cannot be accepted. It is submitted that assuming the plaintiff's contentions to be correct as
regards right to worship, within the temple, like in the case of other authorities, there is nothing to
prevent the female heirs or others from employing priests on their behalf to perform that task.

19. Before this Court proceeds to analyze the rival contentions, it would be necessary to extract the
relevant provisions of the Hindu Succession Act, 1956. Section 6 of the Act, as amended in 2005,
reads as follows :

"4. OVERRIDING EFFECT OF ACT.

(1) Save as otherwise expressly provided in this Act, -

 (a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in
force immediately before the commencement of this Act shall cease to have effect with
respect to any matter for which provision is made in this Act;

(b) any other law in force immediately before the commencement of this Act shall cease to
apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act."

It would be relevant here to recollect that Section 4 contained sub-section (2), which reads as
follows, till it was deleted by the Hindu Succession (Amendment) Act, 2005 w.e.f. 05.09.2005 Prior
to omission it read as under -

"(2) For the removal of doubts it is hereby declared that nothing contained in this Act shall be
deemed to affect the provisions of any law for the time being in force providing for the
prevention of fragmentation of agricultural holdings or for the fixation of ceilings or for the
devolution of tenancy rights in respect of such holdings."

Section 6 (of the Act) reads as follows :

"6. DEVOLUTION OF INTEREST IN COPARCENARY PROPERTY.

(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a
Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall, -

(a) by birth become a coparcener in her own right the same manner as the son ;

(b) have the same rights in the coparcenary property as she would have had if she had been
a son;

(c) be subject to the same liabilities in respect of the said coparcenary property as that of a
son,and any reference to a Hindu Mitakshara coparcener shall be deemed to include a
reference to a daughter of a coparcener :

Provided that nothing contained in this sub-section shall affect or invalidate any disposition or
alienation including any partition or testamentary disposition of property which had taken
place before the 20th day of December, 2004.

(2) Any property to which a female Hindu becomes entitled by virtue of subsection (1) shall
be held by her with the incidents of coparcenary ownership and shall be regarded,
notwithstanding anything contained in this Act or any other law for the time being in force in,
as property capable of being disposed of by her by testamentary disposition.

(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act,
2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law,
shall devolve by testamentary or intestate succession, as the case may be, under this Act and
not by survivorship, and the coparcenary property shall be deemed to have been divided as if
a partition had taken place and, -

(a) the daughter is allotted the same share as is allotted to a son;

(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got
had they been alive at the time of partition, shall be allotted to the surviving child of such
pre-deceased son or of such pre- deceased daughter; and

(c) the share of the pre-deceased child of a pre-deceased son or of a predeceased daughter,
as such child would have got had he or she been alive at the time of the partition, shall be
allotted to the child of such pre- deceased child of the pre- deceased so or a pre- deceased
daughter, as the case may be.

Explanation - For the purposes of this sub-section, the interest of a Hindu Mitakshara
coparcener shall be deemed to be the share in the property that would have been allotted to
him if a partition of the property had taken place immediately before his death, irrespective
of whether he was entitled to claim partition or not.

(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall
recognise any right to proceed against a son, grandson or great-grandson for the recovery of
any debt due from his father, grandfather or greatgrandfather solely on the ground of the
pious obligation under the Hindu law, of such son, grandson or great- grandson to discharge
any such debt :
 Provided that in the case of any debt contracted before the commencement of the Hindu
Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect -

(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the
case may be; or

(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right
or alienation shall be enforceable under the rule of pious obligation in the same manner and
to the same extent as it would have been enforceable as if the Hindu Succession
(Amendment) Act, 2005 had not been enacted.

Explanation - For the purposes of clause (a), the expression 'son", "grandson" or "great-
grandson" shall be deemed to refer to the son, grandson or great-grandson, as the case may
be, who was born or adopted prior to the commencement of the Hindu Succession
(Amendment) Act, 2005.

(5) Nothing contained in this section shall apply to a partition, which has been effected before
the 20th day of December,2004

Explanation - For the purposes of this section "partition" means any partition made by
execution of a deed of partition duly registered under the Registration Act, 1908 or partition
effected by a decree of a court."

20. Speaking about the effect of the amended Act, it was held, by the Supreme Court, in G. Sekar
v. Geetha, 2007(5) RCR(Civil) 118 : 2009 (6) SCC 99 that :

"The Act brought about revolutionary changes in the old Hindu Law. It was enacted to amend
and codify the law relating to intestate succession amongst Hindus. By reason of the Act, all
female heirs were conferred equal right in the matter of succession and inheritance with that
of the male heirs .

By reason of Section 14 of the Act, a woman who had limited interest in the property but was
possessed of the same was to become absolute owner. Section 6 of the Act, however, makes
an exception to the aforementioned rule by providing the manner in which the interest in the
coparcenary property shall devolve upon the heirs stating that the rule of survivorship would
operate in respect thereof. The right, title and interest of an heir, whether male or female,
thus, are governed by the provisions of the Act .."

The Supreme Court also ruled that the amended provisions furthered gender equality, and were in
consonance with Articles 14 and 15 of the Constitution of India, in as much as they removed the
pre-existing disparity in treatment, so far as the share(s) to which female heirs of Hindus dying
intestate, were concerned :

"In terms of Articles 14 and 15 of the Constitution of India, the female heirs, subject to the
statutory rule operating in that field, are required to be treated equally to that of the male
heirs. Gender equality is recognized by the world community in general in the human rights
regime ."

21. It is therefore, clear that after the coming into force of the amending Act, in 2005, female Hindu
heirs are entitled to the same share in ancestral or HUF properties, as male heirs. Two exceptions
are made by the provision :

(1) Nothing in the provision is deemed to invalidate any disposition or alienation including
any partition or testamentary disposition of property which had taken place before the 20th
day of December, 2004.

(2) "Partition" means any partition made by execution of a deed of partition duly registered
under the Registration Act, 1908 or partition effected by a decree of a court.

Therefore, if partition had taken place before the 20th of December, 2004, through a registered
deed, or through decree of Court, the changes brought about by the 2005 amendments, would be
inapplicable. On the other hand, if there is no partition n the prescribed manner, the female heirs of
a deceased Hindu are entitled to the same rights and advantages as the male heirs.

22. The next question, central to deciding the issue addressed by both parties, is whether Bari
rights, of the kind which are in issue, can be enjoyed by female Hindus. The decision of the Supreme
Court, in Badri Nath & Anr. (supra) is illuminating. The plaintiff, daughter of a Baridar in that case,
claimed a share, premised on application of the un-amended Hindu Succession Act. The defendants
argued that Bari rights customarily were linked with the right to worship, which was confined to four
specific Hindu sub- castes. These contentions were rejected by the trial court; the Full Bench of the
Jammu and Kashmir High Court affirmed the findings. On defendants' appeal, the Supreme Court
held as follows :

"the Full Bench noted that the properties to which the Hindu Succession Act does not apply
are only these which find enumeration in Section 5 thereof, that the right share the offering is
not one of those properties and that, therefore, such a right could not but be governed by the
provisions of the Act.

9. In repelling the last contention Full Bench relied upon the provisions of the Hindu
Succession Act which overrides all customs of usage being part of the Hindu Law as in force
immediately prior to the commencement of the Act and concluded that the custom of the
right to share in the offerings being restricted to members of the four sub-castes above
mentioned could not be given effect to and that the plaintiff was full entitled to succeed to
that right in spit of the fact that she did not belong to any of those sub-castes.

........ ...........

"There is thus no doubt that the right to receive a share in the offerings is subject to the
performance of onerous duties. But then it is apparent that none of those duties is in nature
priestly or requiring a personal qualification. On the other hand all of them are of a 'non-
religious or secular character and may be performed not necessarily by the baridar personally
but by his agents or servants so that their performance boils down to mere incurring of
expense. If the baridar chooses to perform those duties personally he is at liberty to do so.
But then the obligation extends merely to the making of necessary arrangements which may
be secured on payment of money to others, the actual physical or mental effort involve being
undertaken by those others. The right is, therefore, a transferable right as envisaged in the
passage above extracted from Bal-mukand and Ors. v. Tula Ram and Ors. (Supra) which
has not been challenged before us as erroneous and which we regard as laying down the law
correctly. "

"..However, it may be pointed out that shebaitship cannot be described as a mere office
because apart from certain responsibilities, it carries with it a definite right to property. This
is a proposition on which emphasis was laid by this court in Anuragbalas case (supra) itself.
Mukherjea, J., observed in this connection :

"But though a shebait is a manager and not a trustee in the technical sense, it would not be
correct to describe the shebtaitship as a mere office. The shebait has not only duties to
discharge in connection with the endowment, but he has a beneficial interest in the debutter
property. As the Judicial Committee observed in the above case, in almost all such
endowments the shebait has a share in the usufruct of the debutter property which depends
upon the terms of the grant or upon custom or usage. Even where no emoluments are
attached to the office of the shebait, he enjoys some sort of right or interest in the endowed
property which partially at least has the character of a proprietary right. Thus, in the
conception of shebaiti both the elements of office and property, of duties and personal
interest, are mixed up and blended together; and one of the elements cannot be detached
from the other. It is the presence of this personal or beneficial interest in the endowed
property which invests shebaitship with the character of proprietary rights and attaches to it
the legal incidents of property. This was elaborately discussed by a Full Bench of the Calcutta
High Court in Monohar Mukherji v. Bhupendra Nath Mukherji, I.L.R. 60 Cal 452 and
this decision of the Full Bench was approved of by the Judicial Committee in Ganesh
Chunder Dhur v. Lal Behary 63 I.A. 448 and again in Bhabatarini v. Ashalatai, 70 I.A.
57 The effect of the first two decisions, as the Privy Council pointed out in the last case, was
to emphasise the proprietary element in the shebaiti right, and to show that though in some
respects anomalous, it was an anomaly to be accepted as having been admitted into Hindu
Law from an early date. "According to Hindu law," observed Lord Hobhouse in Gossamee
Sree Greedharreejee v. Rumanlollji Gossammee 16 I. A. 137 "when the worship of a
Thakoor has been founded, the shebaitship is held to be vested in the heirs of the founder, in
default of evidence that he has disposed of it otherwise, or there has been some usage,
course of dealing, or some circumstances to show a different dealing, or some circumstances
to show a different mode of devolution." Unless, therefore, the founder has disposed of the
shebaitship in any particular manner-and this right of disposition is inherent in the founder or
except when usage or custom of a different nature is proved to exist, shebaitship like any
other species of heritable property follows the line of inheritance from the founder"
Angurbala's case was followed by this Court in a recent decision reported as Ram Rattan v.
Bajrang Lal and Ors., (1978) 3 SCR 963 wherein Desai, J., who delivered the judgment of the
Court observed :

""In the conception of shebait both the elements of office and property, duties and personal
interest are mixed up and blended together and one of the elements cannot be detached
from the other. Old texts, one of the principal sources of Hindu law and the commentaries
thereon, and over a century the Courts with very few exceptions have recognised hereditary
office of shebait as immovable, property, and it has all along been treated as immovable
property almost uniformly. While examining the nature and character of an office as
envisaged by Hindu law it would be correct to accept and designate it in the same manner as
has been done by the Hindu law text writers and accepted by courts over a long period. It is,
therefore, safe to conclude that the hereditary office of shebait which would be enjoyed by
the person by turn would be immovable property."

"The right to share the offerings being a right coupled with duties other than those involving
personal qualifications and, therefore, being heritable property, it will descend in accordance
with the dictates of the Hindu Succession Act and in supersession of all customs to the
contrary in view of the provisions of Section 4 of that Act, Sub-section (1) of which state :

(a) Save as otherwise expressly provided in this Act-any text, rule or interpretation of Hindu
law or any custom or usage as part of that law in force immediately before the
commencement of this Act shall cease to have effect with respect to any matter for which
provision is made in this Act :

(b) any other law in force immediately before the commencement of this Act shall cease to
apply to Hindus in so far as it is inconsistent with any of the provision's contained in this Act.

The requirements of the custom relied upon by the appellants to the effect that the right
could not be exercised by a person who is not a member of any of the four sub-castes
mentioned above becomes wholly ineffective in view of these provisions being contrary to the
order of succession laid down in Chapter II of the Hindu Succession Act under which the right
devolves on the plaintiff-respondent."

22. The Supreme Court had recognized the right of female heirs to succeed the priestly office, earlier
in Raj Kali Kuer v. Ram Rattan Pandey, AIR 1955 SC 4936, where it was held that :

"That religious offices can be hereditary and that the right to such an office is in the nature of
property under the Hindu Law is now well established. A Full Bench of the Calcutta High Court
in Manohar v. Bhupendra, A.I.R. 1932 Cal 791 has laid this down in respect of
Shebaitship of a temple and this view has been accepted by the Privy Council in two
subsequent cases in Ganesh v. Lal Behary, (1936) L.R. 63 I.A. 448 and Bhabatarini v.
Ashalata, (1943) L.R. 70 I.A. 57. In a recent judgment of this Court reported as The
Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha
Swamiar, (1954) S.C.R. 1005 this view has been reiterated and extended to the office of a
Mahant. On the view that Shebaiti is property, this Court has also recognised the right of a
female to succeed to the religious office of Shebaitship in the case reported as Angurbala v.
Debabrata, (1951) S.C.R. 1125, where the question as to the applicability of Hindu
Women's Right to Property Act to the office of Shebaitship came up for consideration. On the
same analogy as that of a Shebaiti right, the right of a hereditary priest or Pujari in a temple
must also amount to property where emoluments are attached to such an office. Indeed,
some of the decisions which have recognised the Shebaiti right as property appear to be
cases where the Shebaiti right combines the priestly office of a Pujari of the idol with the
office of the manager of the temple, who in South India, is known by the name of
Dharmakarta. As early as in Mitta Kunth Audhicarry v. Neerunjun Audhicarry, (1875)
16 B.L.R. 166, it was recognised that hereditary priestly office in a family is property liable
to partition. A number of other decisions to be noticed in the later part of this judgment
recognise this position. The learned Judges of the High Court in their judgment in the case
under appeal, have attempted to distinguish the present case from that of the case of the
Shebaitship and have come to the conclusion that while in respect of Shebaiti right a woman
may succeed by heir ship, she is not entitled to such succession in respect of the right of a
Panda and Pujari. But in making this distinction they do not negative the idea that the right
to the office of the Pujari itself is property to which a female could succeed, but for her
supposed disqualification. The disqualification is said to arise with reference to the duties
attached to this office, and it is said that in this respect it differs from the office of a Shebait.
 A careful review, therefore, of the reported cases on this matter shows that the usage of a
female succeeding to a priestly office and getting the same performed through a competent
deputy is one that has been fairly well recognised. There is nothing in the textual Hindu law
to the contrary. Nor can it be said that the recognition of such a usage is opposed to public
policy, in the Hindu law sense. As already pointed out the consideration of public policy can
only be given effect in the present state of the law, to the extent required for enforcing
adequate discharge of the duties appurtenant to the office. Subject to the proper and efficient
discharge of the duties of the office, there can be no reason either on principle or on
authority to refuse to accord to a female the right to succeed to the hereditary office held by
her husband and to get the duties of the office performed by a substitute excepting in cases
where usage to the contrary is pleaded and established ."

(emphasis supplied)

23. The nature of shebaitship, and whether it entailed performance of religious and ritualistic duties,
which female Hindus, in principle were excluded or enjoined from succeeding to, was examined in
Ram Rattan (Dead) By Lrs. v. Bajrang Lal And Ors., (1978) 3 SCC 236. The Court held that :

" .In the conception of Shebait both the elements of office and property, duties and personal
interest are mixed up and blended together and one of the elements cannot be detached
from the other. Old texts, one of the principal sources of Hindu law and the commentaries
thereon, and over a century the Courts with very few exceptions have recognised hereditary
office of Shebait as immovable property, and it has all along been treated as immovable
property almost uniformly. While examining the nature and character of an office as
envisaged by Hindu law it would be correct to accept and designate it in the same manner as
has been done by the Hindu law text writers and accepted by courts over a long period. It is,
therefore, safe to conclude that the hereditary office of Shebait which would be enjoyed by
the person by turn would be immovable property. The gift of such immovable property must
of course be by registered instrument "

The Calcutta High Court in Anath Bandhu De v. Krishna Lal Das And Ors., AIR 1979 Cal 68
discussed and reiterated the rule laid down in Monohar Mukherjee v. Bhupendra Nath
Mukherjee, 37 CWN 29 : AIR 1932 Cal 791 (Full Bench) discussing about the nature of
shebbaitship, and whether female Hindus can function in that office, held that:

"Even assuming that he had such a right, still he was not entitled to create a line of
succession to the office of the shebait which was opposed and repugnant to Hindu law. The
leading case on the point is the Full Bench case of Monohar Mukherjee v. Bhupendra
Nath Mukherjee, 37 CWN 29 : AIR 1932 Cal 791 (FB). It has been laid down in that case
that the founder of Hindu debutter is competent to lay down rules to govern the succession to
the office of shebait, subject to the restriction that he cannot create any estate unknown or
repugnant to Hindu law. There can be no doubt that the line of succession to the office of the
shebait in tail male as laid down in the will of Sristidhar is opposed to Hindu law and
accordingly, it is void and inoperative. In this connection, it may be stated that the
compromise decree whereby the parties bound themselves by the terms of the will of
Sristidhar regarding the appointment of Shebaits could not render valid the line of Succession
laid down by Sristidhar in his will as the same was void being opposed to Hindu Law.

It is no doubt true that shebaitship is property and it is heritable like any other property,
subject to the condition that the founder of the debutter has not laid down any mode of
devolution of the office of shebait. In case such a mode is laid down, the office of shebait
would devolve according to that mode. In the absence of any disposition of shebaitship, it will
devolve in accordance with the Hindu law of succession, and, in that case, the office of
shebait will be a hereditary office"

The Supreme Court in Angurbala Mullick v. Debabrata Mullick, AIR 1951 SC 293 discussed the
following propositions of law, and affirmed that even shebbaitship can be inherited by women :

"Even where no emoluments are attached to the office of the shebait, he enjoys some sort of
right or interest in the endowed property which partially at least has the character of a
proprietary right. Thus, in the conception of shebaiti both the elements of office and property,
of duties and personal interest, are mixed up and blended together; and one of the elements
cannot be detached from the other. It is the presence of this personal or beneficial interest in
the endowed property which invests shebaitship with the character of proprietary rights and
attaches to it the legal incidents of property. This was elaborately discussed by a Full Bench
of the Calcutta High Court in Manohar Mukherji v. Bhupendra Nath Mukherji, I.L.R. 60
 Cal. 452 and this decision of the Full Bench was approved of by the Judicial Committee in
Ganesh Chunder Dhur v. Lal Behary, 63 I.A. 448 and again in Bhabatarini v. Ashalata,
70 I.A. 57. The effect of the first two decisions, as the Privy Council pointed out in the last
case, was to emphasize the proprietary element in the shebaiti right, and to show that
though in some respects anomalous, it was an anomaly to be accepted as having been
admitted into Hindu law from an early date. "According to Hindu law," observed Lord
Hobhouse in Gossamee Sree Greedharreejee v. Rumanlolljee Gossamee, 16 I.A. 137,
"when the worship of a Thakoor has been founded, the shebaitship is held to be vested in the
heirs of the founder, in default of evidence that he has disposed of it otherwise, or there has
been some usage, course of dealing, or some circumstances to show a different mode of
devolution." Unless, therefore, the founder has disposed of the shebaitship in any particular
manner - and this right of disposition is inherent in the founder - or except when usage or
custom of a different nature is proved to exist, shebaitship like any other species of heritable
property follows the line of inheritance from the founder."

Turning now to the Hindu Women's Rights to Property Act, it will be seen that the object of the Act,
as set out in the preamble, is to give better rights to women in respect of property. Section 2 lays
down :- "Notwithstanding any rule of Hindu law or custom to the contrary, the provisions of Section
3 shall apply where a Hindu dies intestate." . Section 3(1) then provides :-

"When a Hindu governed by the Dayabhaga School of Hindu law dies intestate leaving any
property, and when a Hindu governed by any other school of Hindu law....... dies intestate
leaving separate property, his widow, or if there is more than one widow all his widows
together, shall, subject to the provisions of sub-section (3), be entitled in respect of property
in respect of which he dies intestate to the same share as a son :

Provided that the widow of a predeceased son shall inherit in like manner as a son if there is
no son surviving of such predeceased son, and shall inherit in like manner as a son's son if
there is surviving a son or son's son of such predeceased son;

Provided further that the same provision shall apply mutatis mutandis to the widow of a
predeceased son of a predeceased son."

" .. It will be seen that section 3(1) abrogates the general rule of Hindu law according to
which a widow succeeds to her deceased husband's property only in default of male issue and
she is now entitled to the same share as a son along with or in default of male issue. Similar
rights have been given by the two provisos attached to section 3(1) to the widow of a
predeceased son and also to the widow of a predeceased son of a predeceased son. Section
3(1) speaks of "any property". The expression prima facie includes, unless something to the
contrary can be spelt out from the other provisions of the Act, all forms or types of interest
answering to the description of "property" in law. Of course, the property must be heritable
property in respect to which alone the question of succession may legitimately arise.'

......... ...............

Assuming that the word "property" in Act XXIII of 1937 is to be interpreted to mean property
in common and ordinarily accepted sense and is not to be extended to any special or peculiar
type of property, even then we think that the other contention of Mr. Tek Chand is perfectly
sound. Succession of shebaitship, even though there is an ingredient of in it, follows
succession to ordinary or secular property. It is the general law of succession that governs
succession to shebaitship as well. While the general law now been changed by reason of Act
XVIII of 1937, there does not appear to be any cogent reason why the law as it stands at
present should not be made applicable in the case of devolution of shebaitship"

........ ...............

The word "heirs" cannot normally be limited to issue only. It must mean all persons who are
entitled to the property of another under the law of inheritance. So far as the main provision
is concerned there is nothing in the language or in the context to suggest that the word
"heirs" has not been used in its ordinary or natural sense."

.......... ............

In support of his contention that the word "property" in the Hindu Women's Rights to Property Act
cannot be construed so comprehensively as to include a shebait right, Mr. Bannerjee referred to sub-
clause (3) of section 3, which speaks of "any interest devolving on a Hindu widow under the
provisions of this section shall be the limited interest known as a Hindu Woman's estate"; and he
urged that the conception of such an estate as distinguished from an absolute interest is inapplicable
to such a right of property. This is a point that deserves some attention. In dealing with it, we are
not thinking of any property endowed to the Thakur or the deity and its intrinsic legal characteristics
as constituting a religious endowment. We have in mind the shebaitship itself as a species of
property. Can it be postulated with reference to the shebaitship that a Hindu widow succeeding to
the office has only what is known as a "Hindu woman's estate" as contrasted with a full or absolute
estate taken by a male heir " Does a male heir get higher rights than a Hindu widow " and if so,
what are they " So far as a shebaitship is concerned, the office does not ensure beyond the lifetime
of the holder, whether male or female, and is generally inalienable. It is res extra commercium. A
male heir cannot alienate it any more than a female heir. What limitations exist or are imposed on
alienability arises out of the nature of the property and not out of the nature of the estate taken by
the heir. In the very nature of things, there can be no alienation for necessity, surrender,
acceleration of the estate in favour of the next in succession, etc. Plausible and attractive is this line
of reasoning, and it lends support to the view taken in Umayal Achi v. Lakshmi Achi, (1945)
F.C.R. 1 by Sir Varadachariar, where, referring to sub-clause (3) of Section 3, he observes :-

"This provision will be appropriate enough in relation to private property where the woman's
estate is different from the interest taken by a male heir. But in respect of trusteeship or
other similar office, the law makes no difference between the interest taken by a male heir
and the interest taken by a female heir."

But it does not decisively outweigh the several considerations set forth in the judgment just
now delivered by my learned brother Mukherjea J. for construing the word "property" in a
wider sense so as to include the shebaiti right also. It there is no legal objection to a woman
being a shebait under Hindu law, there is no particular reason why she should be excluded
from succeeding to the same under an Act which imposes no restriction or prohibition either
in express terms, or by necessary implication." (emphasis supplied)

24. The earlier decisions, cited by the Calcutta High Court and Supreme Court, had held that as a
matter of law there was no proposition that "Bari" or "turn" rights were inalienable, or restricted in
succession, and that unless a custom was proved, such functions are not bound up with duties to
worship the deity; those decisions had relied on the rulings of the Allahabad High Court in Nand
Kumar Dutt v. Ganesh Das and Anr., AIR 1936 All 131 and Balmakund And Anr. v. Tula
Ram & Ors., AIR 1928 All 721; as well as of the Calcutta High Court Full Bench in Manohar
Mukherjee v. Bhupendra Nath Mukherjee, 37 CWN 29. In fact, Bari (or "pala" rights, as known
in Bengal) was held to be heritable, like any other property, in Mitta Kunth Audhicarry v.
Neerunjan Audhicarry, 1875 14 BLR 166 thus :

"The right of performing worship of an idol follows the same line of succession as that of
private property"

Similarly, in Mahamaya Debi v. Haridas Haldar, (1915) ILR 42 CAL 455 the Full Bench of
Calcutta High Court held that :

" Indeed , the very pala or turn to worship shows that the right is partible .There is no further
question that a pala has not only deemed to be heritable and partible but also been treated
as devisable.....There is no question that a pala is heritable and it is immaterial whether heir
is male or female "

25. The above discussion would reveal that :

(1) Bari (or pala) rights are partible, as well as alienable (Badri Nath, Raj Kali Kuer; Ram
Rattan, supra, all decisions of the Supreme Court)

(2) Unless a contrary custom is proved, such rights are not linked or bounded with the
obligation to perform puja or worship;

(3) Female Hindus can inherit priestly office, as well as bari rights (Raj Kali Kuer and Badri
Nath, supra)

(4) Even if such bari rights entail worship obligations, they can be performed by others,
employed by such female heirs, for such purpose (Raj Kali Kuer);

(5) Bari rights are like any other benefit which is partible, and do not fall within the category
of rights for which partition is forbidden, by Section 5 of the Hindu Succession Act.

26. Another noteworthy aspect is that Badrinath (supra) was concerned with the Bari rights of a
female Hindu, in respect of the Mata Vaishno Devi shrine, near Jammu, which is also a renowned
seat of Shakti or Devi worship, like the temple in this case. All the Courts had decisively overruled
the contention that obligation to worship were tied up with the Bari rights; they also held that female
Hindus could enjoy those rights, which were a species of property. The ratio of that decision, and the
earlier judgments discussed previously, apply squarely, to negative the plaintiffs' contentions.

27. The brothers contend that the customary right of worship, exclusively limited to male heirs of
the family, is intrinsically bound with the rituals practiced by the denomination to which the temple
belongs, as a Shakti Peetha. It is contended that Shakti worship, or deification, and offering worship
to the female power is central to the faith and belief of adherents of the denomination, and that the
Court cannot interfere with the customs and rituals, which are core matters pertaining to the
practice of religion, by adherents of the denomination; the rights protected by Articles 25 and 26 of
the Constitution of India, are invoked in aid of this submission.

28. Now, there can be no two opinions that denominational rights in respect of religious practices
are as much entitled to protection from state or other interference, as are religious practices and
customs, which are central to the tenets and core beliefs of their adherents. Before going to the
issue of what is a Hindu denomination, or order, it would be appropriate to recapitulate what is
"Hindu" religion. This was addressed rather poignantly in the Supreme Court ruling, reported as
Sastri Yagnapurushadji & Ors. v. Muldas Bhudardas Vaishya, AIR 1966 SC 1119 :

"the usual tests which can be applied in relation to any recognised religion or religious creed
in the world turn out to be inadequate in dealing with the problem of Hindu religion.
Normally, any recognised religion or religious creed subscribes to a body of set philosophic
concepts and theological beliefs. Does this test apply to the Hindu religion"

Unlike other countries, India can claim that philosophy in ancient India was not an auxiliary
to any other science or art, but always held a prominent position of independence ..

The history of Indian thought emphatically brings out the fact that the development of Hindu
religion has always been inspired by an endless quest of the mind for truth based on the
consciousness that truth has many facets. Truth is one, but wise men describe if differently.
The Indian mind has, consistently through the ages, been exercised over the problem of the
nature of godhead the problem that faces the spirit at the end of life, and the interrelation
between the individual an the universal soul. "If we can abstract from the variety of opinion",
says Dr. Radhakrishnan, "and observe the general spirit of Indian thought, we shall find that
it has a disposition to interpret life and nature in the way of monistic idealism, though this
tendency is so plastic, living and manifold that it takes many forms and expresses itself in
even mutually hostile teachings".(Ibid, p.32.)

The monistic idealism which can be said to be the general distinguishing feature of Hindu
Philosophy has been expressed in four different forms : (1) Non-dualism or Advitism; (2)
Pure monism; (3) Modified monism; and (4) Implicit monism. It is remarkable that these
different forms of monistic idealism purport to derive support from the same vedic and
Upanishadic texts. Shankar, Ramanuja, Vallabha and Madhva all based their philosophic
concepts on what they regarded to be the synthesis between the Upanishads, the
Brahmasutras and the Bhagavad Gita. Though philosophic concepts and principles evolved by
different Hindu thinkers and philosophers varied in many ways and even appeared to conflict
with each other in some particulars, they all had reverence for the past and accepted the
Vedas as the sole foundation of the Hindu philosophy. Naturally enough, it was realised by
Hindu religion from the very beginning of its career that truth was many-sided and different
views contained different aspects of truth which no one could fully express.

This knowledge inevitably bred a spirit of tolerance and willingness to understand and
appreciate the opponents point of view. That is how "the several views set forth in India in
regard to the vital philosophic concepts are considered to be the branches of the self- same
tree. The short cuts and blind alleys are somehow reconciled with the main road of advance
to the truth." (Ibid p. 48.) When we consider this broad sweep of the Hindu philosophic
concepts, it would be realised that under Hindu philosophy, there is no scope for ex-
communicating any notion or principle as heretical and rejecting it as such.

.......... .............

Beneath the diversity of philosophic thoughts, concepts and ideas expressed by Hindu
philosophers who started different philosophic schools, lie certain broad concepts which can
be treated as basic. The first amongst these basic concepts is the acceptance of the Veda as
the highest authority in religious and philosophic matters. This concept necessarily implies
that all the systems claimed to have drawn their principles from a common reservoir of
thought enshrined in the Veda. The Hindu teachers were thus obliged to use the heritage
they received from the past in order to make their views readily understood. The other basic
concept which is common to the six systems of Hindu philosophy is that "all of them accept
 the view of the great world rhythm. Vast periods of creation, maintenance and dissolution
follow each other in endless succession. This theory is not inconsistent with belief in progress;
for it is not a question of the movement of the world reaching its goal times without number,
and being again forced back to its starting point........ It means that the race of man enters
upon and retravals its ascending path of realisation. This interminable succession of world
ages has no beginning". ("Indian Philosophy" by Dr. Radhakrishnan, Vol. II., p. 26) It may
also be said that all the systems of Hindu philosophy believe in rebirth and pre-existence.
"Our life is a step on a road, the direction and goal of which are lost in the infinite. On this
road, death is never an end of an obstacle but at most the beginning of new steps". (ibld.)
Thus, it is clear that unlike other religions and religious creeds, Hindu religion is not tied to
any definite set of philosophic concepts as such. Do the Hindus worship at their temples the
same set or number of gods " That is another question which can be asked in this connection;
and the answer to this question again has to be in the negative. Indeed, there are certain
sections of the Hindu community which do not believe in the worship of idols; and as regards
those sections of the Hindu community which believe in the worship of idols their idols differ
from community to community and it cannot be said that one definite idol or a definite
number of idols are worshipped by all the Hindu in general. In the Hindu Pantheon the first
goods that were worshipped in Vedic times were mainly Indra, Varuna, Vayu and Agni. Later,
Brahma, Vishnu and Mahesh came to be worshipped. In course of time, Rama and Krishna
secured a place of pride in the Hindu Pantheon, and gradually as different philosophic
concepts held sway in different sects and in different sections of the Hindu community, a
large number of gods were added, with the result that today, the Hindu Pantheon presents
the spectacle of a very large number of gods who ar worshipped by different sections of the
Hindus.

The development of Hindu religion and philosophy shows that from time to time saints and
religious reformers attempted to remove from the Hindu thought and practices elements of
corruption and superstition and that led to the formation of different sects. Buddha stated
Buddhism; Mahavir founded Jainism; Basava became the founder of Lingayat religion,
Dnyaneshwar and Tukaram initiated the Varakari cult; Guru Nanak inspired Sikhism;
Dayananda founded Arya Samaj, and Chaitanya began Bhakti cult; and as a result of the
teachings of Ramakrishna and Vivekananda, Hindu religion flowered into its most attractive,
progressive and dynamic form. If we study the teachings of these saints and religious
reformers, we would notice an amount of divergence in their respective views; but
underneath that divergence, there is a kind of subtle indescribable unity which keeps them
within the sweep of the broad and progressive Hindu religion.

There are some remarkable features of the teachings of these saints and religious reformers.
All of them revolted against the dominance of rituals and the power of the priestly class with
which it came to be associated; and all of them proclaimed their teachings not in Sanskrit
which was the monopoly of the priestly class, but in the languages spoken by the ordinary
mass of people in their respective regions.

Whilst we are dealing with this broad and comprehensive aspect of Hindu religion it may be
permissible to enquire what, according to this religion, is the ultimate goal of humanity " It is
the release and freedom from the unceasing cycle of births and rebirths; Moksha or Nirvana,
which is the ultimate aim of Hindu religion and philosophy, represents the state of absolute
absorption and assimilation of the individual soul with the infinite. What are the means to
attain this end " On this vital issue, there is great divergence of views; some emphasise the
importance of Gyan or knowledge, while others extol the virtues of Bhakti or devotion; and
yet others insist upon the paramount importance of the performance of duties with a heart
full of devotion and mind inspired by true knowledge. In this sphere again, there is diversity
of opinion, though all are agreed about the ultimate goal. Therefore, it would be inappropriate
to apply the traditional tests in determining the extent of the jurisdiction of Hindu religion. It
can be safely described as a way of life based on certain basic concepts to which we have
already referred .."

29. The plaintiff argues, somewhat elliptically, that Devi cult or worship is itself a denomination, and
that the practice of male heirs of the family being entitled to worship, and their entitlement to the
"Bari" rights - is a "core" denominational right. Now, while one can understand that Devi worship is
part of Hindu religious practice, there ought to be something more to say that a large and
amorphous at time diverse body of devotees, committed to Devi worship can be called as a religious
denomination. Devi worship can be in several forms Kali or Durga, Chamunda, or Vaishno Devi, or
Kamakshi and so on. Devi or Shakti worship is widespread amongst most Hindus at certain times of
the year, particularly at the time of the "Navaratris" in March-April, and the second, in October.
While worship of Shakti or Devi, may be common, as it celebrates "female" power that alone is an
insufficient premise to conclude existence of a denomination. What are the essential pre-requisites
for a grouping to be called a religious denomination, was spelt out in Nellor Marthandam Vellalar
& Ors. v. Commissioner, Hindu Religious And Charitable Endowments & Ors, 2003 (10)
SCC 712, where the Supreme Court revisited the law in this respect :

"It is settled position in law, having regard to the various decisions of this Court that the
words "religious denomination" take their colour from the word religion. The expression
"religious denomination" must satisfy three requirements - (1) it must be collection of
individuals who have a system of belief or doctrine which they regard as conducive to their
spiritual well being, i.e., a common faith; (2) a common organisation; and (3) designation of
a distinctive name. It necessarily follows that the common faith of the community should be
based on religion and in that they should have common religious tenets and the basic cord
which connects them, should be religion and not merely considerations of caste or community
or societal status. On the basis of the evidence placed on record, the first appellate Court as
well as the High Court found that Vellala Community is not shown to be a distinct religious
denomination, group or sect so as to be covered by Article 26 of the Constitution. Further, it
was necessary for the plaintiffs to establish their claim in respect of the temple that the said
denomination group has established and is maintaining and administering the suit temple to
take the protection of Article 26 of the Constitution and Section 107 of the Act. High Court
found, after meticulous and careful consideration of material that there was no evidence to
prove that the members of the Vellala Community have been shown to have any common
religious tenets peculiar to themselves other than those who are common to the entire Hindu
community ."

30. The plaintiff has been unable to show how the essential elements that go towards pointing to
existence of a denomination are present in this case. The temple no doubt is dedicated to Devi
worship; other than that, there is no evidence presented to establish that it is part of a
denominational order, which possesses a common organization, with a set of common practices, and
follows rituals, which are shared by other temples and institutions. The common denominations,
which spring naturally to the mind, in the context of the Hindu religion, are the Ramakrishna
Mission, the Hare Krishna movement, Radha Saomi Satsangis, Arya Samaj, Ananda Margis, the
Raghavendra Math, etc. The temple in this case clearly is a non- denominational one, though
dedicated to Devi worship. Its customs and rituals are not rigid, as the evidence of the first
defendant establishes. Though family members and not all of them, have to follow or observe certain
practices, there appears to be no compulsion that all have to do so; there is no rigid rule about the
rituals; even Shastric knowledge is not essential. Prayers and worship can be easily performed, by
reading the text found in the walls of the temple. As far as the Bari right is concerned, there is no
rule that one who secures that right has to invariably perform religious rituals or worship, as a
condition, or as an essential part of the enjoyment of the right.

31. So far as the Plaintiff's contention about custom debarring female heirs from participating in Bari
benefits, and worship is concerned, concededly, the materials disclose that one Pt. Umrao had
originally enjoyed the right of worship. He fell seriously ill and due to advancing age he was unable
to perform Sewa Puja. He, therefore, permitted his son-in-law Pt. Gopi Nath to perform Puja Sewa
on his behalf. Later, Pt. Umrao became blind; he mortgaged his Puja Sewa rights in Mandir Sri
Kalkaji in favour of Pt. Gopi Nath by a written document. He was unable to discharge the debt during
his life time. As a result, he alienated the Puja Sewa rights in to the said Pandit Gopi Nath. After the
latter's death, those rights were asserted by his male descendants. These facts are significant and
revealing, as Pandit Umrao both alienated his right of worship (negativing the plaintiff's argument
about its inalieanability) and granted it to his daughter's branch. These events took place barely 100
years ago. They wholly contradict the plaintiff's claim that the right to worship and enjoy Bari
benefits (which today implies the right to tehbazari proceeds) exclusively vested in male heirs.

32. It would be necessary to remember that according to Article 13 of the Constitution of India, laws
in force in India, immediately before the commencement of the Constitution, inconsistent with or in
derogation of fundamental rights, to the extent of inconsistency, are void. Article 13 (2) enjoins the
State not to "make any law which takes away or abridges the rights conferred by this Part and any
law made in contravention of this clause shall, to the extent of the contravention, be void." Most
crucially, Article 13 (3) defines law as follows :

"(3) In this article, unless the context otherwise requires,-

(a)"law" includes any Ordinance, order, bye-law, rule, regulation, notification, custom or
usage having in the territory of India the force of law;

(b)"laws in force" includes laws passed or made by a Legislature or other competent authority
in the territory of India before the commencement of this Constitution and not previously
repealed, notwithstanding that any such law or any part thereof may not be then in operation
either at all or in particular areas."
If one keeps the above commandment in mind, and contextualizes it in relation to Sections 4 and 6
of the Hindu Succession Act, read with Article 15 of the Constitution of India, the Court is under an
obligation to avoid the odium of a gender discriminatory interpretation, to any law, which denies
property rights to women. In this case, despite assertions, the plaintiff has been unable to establish
that:

(1) The Bari rights are intrinsically connected with worship in the temple;

(2) That such worship, even if they are assumed to be a condition, cannot be performed on
behalf of the female heirs, by someone else;

(3) That such Bari rights cannot be enjoyed by female heirs; (4) That Bari rights are
impartible, inalienable and do not constitute property.

On the other hand, all the authorities at least three Supreme Court judgments have ruled that the
right to worship can be alienated, and that such Bari rights can be enjoyed by female Hindus.

33. This Court does not wish to recollect the various treaties and International covenants to which
India is a signatory, assuring equal treatment of women, and guaranteeing elimination of all forms
of discrimination. If one keeps the underlying principles of those international covenants and the
guarantee of equality held out by our Constitution, in mind, it would be anachronistic and regressive
to affirm the plaintiff's contention that the discriminatory practice of excluding female heirs from the
benefits of property rights to which Baris are attached which appears to have existed all this while-
should be continued. Such is not the mandate of law; such is not the custom or practice of any
denomination, as claimed.

34. Having regard to this factual matrix, and the above findings, this Court concludes that the
female heirs (i.e. daughters and widow of late R.N. Bhardwaj) are entitled to equal one seventh
share each, in the proceeds in enjoyment of the Bari rights, which accrued to the other heirs. The
amounts deposited in this Court shall, to the extent of their entitlement, after adjusting the amounts
received under this Court's orders, be disbursed to them. All the above applications are disposed of
in these terms.

CS(OS) Nos. 641/2005 and 642/2005

List on 17th January, 2011.

Application disposed of.

Product S.No.372671553

This judgement ranked 14 in the hitlist.

Sheela Devi v. Lal Chand, (P&H) : Law Finder Doc Id # 92924

2006(1) R.C.R.(Civil) 96 : 2006(1) PLR 379 : 2006(4) CivCC 111 : 2006(1) HLR 144

PUNJAB AND HARYANA HIGH COURT

Before :- M.M. Kumar, J.

Regular Second Appeal No. 1627 of 1994. D/d. 10.10.2005

Sheela Devi - Appellants

Versus

Lal Chand - Respondents

For the Appellants :- Ashish Aggarwal, Advocate.

For the Respondents :- S.K. Chopra, Mr. Dhirinder Chopra, Mr.C.M. Munjal, Mr. Munishwar Puri,
Advocates.
A. Hindu Succession Act , 1956, Section 8 - Hindu Law Succession to Hindu Coparcenary
ancestral property before commencement of 1956 Act - The law applicable pre-1956
would govern the rights of the parties and not the post- 1956 Act .

[Para 9]

B. Hindu Succession Act , 1956, Section 8 - Hindu Law - Succession to Hindu Coparcenary
ancestral property - Grand sons would not have any right in the property of their grand
father who died inte-state - However, being members of HUF they will become co-
parceners in the Hindu Co-parcenary alongwith their father entitled to equal share.

[Para 9]

C. Hindu Succession Act , 1956, Section 8 - Hindu Law - Succession to Hindu Coparcenary
ancestral property of the share of inte-state co-parcener brother - Only brothers will
inherit the property of a pre-deceased brother and that will become their self-acquired
property and would not form part of the Hindu Coparcenary ancestral property.

[Para 9]

Cases referred :

Commissioner of Wealth Tax v. Chander Sen, AIR 1986 SC 1753.

Additional Commissioner of Income Tax v. P.L. Karuppan Chettiar, AIR 1979 Mad. 1.

Inder Singh v. Channo, 2004(3) RCR(Civil) 803 (SC) : 2005(1) CCC 138.

Eramma v. Veerapan, AIR 1966 SC 1879.

Chhote Khans v. Mal Khan, AIR 1954 SC 575.

Indranarayan v. Roop Narayan, AIR 1971 SC 1962.

Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum, AIR 1978 SC 1239.

Raj Rani v. Chief Settlement Commissioner, AIR 1984 SC 1234.

Kaushal Kishore v. Dharam Kishore, 1977 PLR 749.

JUDGMENT

M.M. Kumar, J. - This is defendants filed under Section 100 of the Code of Civil Procedure, 1908
(for brevity 'the Code') challenging concurrent findings of fact recorded by both the Courts below
holding that the suit of the plaintiff-respondents for declaration deserved to the decreed in their
favour because Babu Ram the father of the plaintiff-respondents constituted a joint Hindu family
with them and out of the suit land 1/5th share was separate property of Babu Ram and 4/5th share
was ancestral property in the hands of Babu Ram qua the plaintiff-appellants.

2. The case of the plaintiff-respondents as pleaded before the Courts below is that Babu Ram son of
Tulsi Ram was recorded as owner in possession of the suit land in the jamabandi for the years 1982-
83 (Ex.P.1) and 1987-88 (Ex.P.2). He did inte-state and was survived by his two sons Lal Chand and
Sohan Lal who are the plaintiff-respondents and three daughters Sheila Devi, Usha Devi and Baby
who are the defendant-appellants. After the death of Babu Ram, the Assistant Collector 1st Grade
Samana had sanctioned mutation No 5126 with respect to the suit property in favour of the plaintiff-
respondents and the defendant-appellants in equal spheres by an order dated 17.5.1989 (Ex.D.1).
The plaintiff-respondents namely Lal Chand and Sohan Lal who are sons of Babu Ram filed a suit for
declaration to the effect that they were owners to the extent of 12/15th share in the suit land and
mutation in favour of the plaintiff-respondents and defendant-appellants sanctioned on 17.5.1989
equal shares was liable to be set aside. The relief of permanent injunction to restrain defendant-
appellants from alienating the suit property in any manner has also been claimed. It would be
appropriate to understand the controversy with the help of pedigree table which reads as under :
3. The pedigree table shows that Tulsi Ram was the common ancestor who had five sons. However,
Uggar Sain one of the sons had died issueless. After the death of Tulsi Ram the surviving five sons
had acquired 1/5th share in the joint Hindu Family Coparcenary/ancestral property. As Uggar Sain
had died issueless his 1/5th share was further acquired by four brothers in equal share. However,
the share of Uggar Sain acquired by his four brothers has been considered to be their self-acquired
property. Therefore, Babu Ram one of the five brothers is found to have acquired 1/5th share from
the property of his father Tulsi Ram which was considered joint Hindu family coparcenary and
ancestral property. However, the share of Uggar Sain who had died issueless has been considered to
be self-acquired property of Babu Ram and his other brothers. On the basis of the afore-mentioned
factual position, both the Court below have decreed the suit in favour of the plaintiff-respondents.
The view of the lower appellate Court is discernible from the perusal of para 7 of the judgment which
reads as under :

" It had come on record that the land was originally owned by Tulsi Ram. Tulsi Ram had five
sons namely Walaiti Ram, Babu Ram, Charanji Lal, Hukam Chand and Uggar Sain. Property
held by Tulsi Ram was inherited by these five sons in 1/5th share each. Thereafter Uggar
Sain had died issueless and his 1/5th share in the property was inherited by his remaining
four brothers, including Babu Ram in 1/4th share each. Ultimately, Babu Ram had held land
measuring 198 K 5 Marlas. The share of the land inherited from a brother can never become
Joint Hindu Family Coparcenary property. The whole share of Babu Ram had been clubbed
and the total land been 198 K 5 M. Out of this land the share inherited by Babu Ram from his
brother Uggar Sain will be his self- acquired property and the share inherited by him from his
father shall be Joint Hindu Family Coparcenary property. Under these circumstances, 1/5th
share of the total land was self-acquired property of Babu Ram whereas 4/5th share was
Joint Hindu Family Coparcenary property. At the time of death of Babu Ram, there were three
coparceners i.e. Lal Chand and Sohan Lal apart from Babu Ram. At that time all three had
1/3rd share each in the Joint Hindu Family Coparcenary property. Sohan Lal and Lal Chand,
therefore, had 4/15 share each whereas Babu Ram had also 4/15th share in the Joint Hindu
Family and Coparcenary property. His 4/15th share had further been inherited by his five
children i.e. plaintiffs and the defendants in 1/5th share each. Babu Ram had also 1/5th
sharers self-acquired property. That was also inherited by the plaintiffs and the defendants in
1/5th share each. In this way plaintiffs would be entitled to 27/75 share each whereas
defendants would be entitled to 7/75 share each. The trial Court had just made it into Marlas
and had held that each plaintiff had 1427/3965 share whereas each of the defendants is
owner of 370/3965 share."

4. The only question which requires determination in the instant appeal is whether the provisions of
Section 8 of the Hindu Succession Act, 1956 (for brevity 'the 1956 Act') would apply to the facts of
the present case or the law as applicable prior to the enforcement of 1956 Act would apply.

5. Mr. Ashish Aggarwal, learned counsel for the defendant-appellant has argued that the property in
the hands of Babu Ram has to be regarded as self-acquired property as per the provisions of Section
8 of the 1956 Act. According to the learned counsel the interpretation given to Section 8 of the 1956
Act has categorically replaced the old view that the property of inte-state Hindu after his death
would constitute HUF property comprising of his branch including his sons. He has insisted that such
a property is liable to be divided equally amongst all the children including daughters because right
of a son's son on his grandfather's property during the life time of his father which was available
before 1956 Act has not been saved expressly by the 1956 Act. In support of his submission,
learned counsel has placed reliance on a judgment of the Supreme Court in the case of
Commissioner of Wealth Tax v. Chander Sen, AIR 1986 SC 1753. He has also relied on a Full
Bench judgment of the Madras High Court in the case of Additional Commissioner of Income
Tax v. P.L. Karuppan Chettiar, AIR 1979 Mad. 1, which has been endorsed by the Supreme
Court in Chander Sain's case (supra). Learned Counsel has then argued that the property has to be
considered as self-acquired property of Babu Ram for the reason that various documents shows that
he had purchased the property with his own funds. He has drawn my attention to the fact that the
property acquired from Uggar Sain has to be regarded as self-acquired property and therefore once
the Hindu Coparcenary property is mixed up in the common hotchpotch then it would necessarily be
considered as self-acquired property. For the afore-mentioned proposition, learned counsel has
placed reliance on para 8 of the judgment of this Court in the case of Inder Singh v. Channo and
others, 2004(3) RCR(Civil) 803 (SC) : 2005(1) CCC 138.

6. Mr. S.K. Chopra, Mr. Munishwar Puri and Mr. C.M. Munjal, learned counsel for the plaintiff-
respondents have submitted that Section 8 of the 1956 Act does not operate retrospectively and its
operation has to be prospective in nature. According to the learned counsel once the substantive
provision affects the proprietary right of a party then unless there is any provision to the contrary
expressly making a provision retrospective or by necessary intendment such an interpretation is
available the law has to be considered as prospective in its application. In support of this
submission, learned counsel have placed reliance on a judgment of the Supreme Court in the case of
Eramma v. Veerapan and others, AIR 1966 SC 1879. Learned counsel has further argued that
the judgment of this Court in Inder Singh's case (supra) relied upon by the learned counsel for the
defendant-appellants would not be applicable to the facts of the present case because a presumption
has always been in favour of joint Hindu undivided family property unless it is proved to the
contrary. In that regard, counsel has placed reliance on the judgments of the Supreme Court in the
case of Chhote Khan and others v. Mal Khan, AIR 1954 SC 575; Indranarayan v. Roop
Narayan and another, AIR 1971 SC 1962, Gurupad Khandappa Magdum v. Hirabai
Khandappa Magdum and others, AIR 1978 SC 1239 and Raj Rani v. Chief Settlement
Commissioner, AIR 1984 SC 1234 and the view of this Court in the case of Kaushal Kishore
and others v. Dharam Kishore and others, 1977 PLR 749.

7. Learned counsel had further submitted that succession was open on the death of Tulsi Ram which
culminated in mutation in favour of his five sons namely Wailati Ram, Babu Ram (whose estate is in
dispute), Chiranji Lal, Hukam and Uggar Sain. The afore-mentioned mutation has been enterd on
20.1.1927. Learned counsel has maintained that once the nature of the property is determined
before the enforcement of 1956 Act then it would not undergo any change unless 1956 Act is applied
retrospectively. According to the learned counsel only that share of the property which is left by
Uggar Sain, brother of Babu Ram, could be considered as self-acquired property and not the share
which has been acquired by Babu Ram from his father Tulsi Ram. Thereafter the right of sons of
Babu Ram as against his daughter would not extinguish on the enforcement of 1956 Act.
Accordingly, learned counsel has submitted that both the Courts below have taken the correct view
and the appeal is without merit.

8. Mr. S.K. Chopra, learned counsel has then submitted that no such plea has been raised by the
defendant-appellants before the Courts below which might have led to the determination of the
question whether the property in the hands of Babu Ram was self-acquired property or it was Hindu
undivided family ancestral and Co-parcenary property. Learned counsel has emphasised that in the
absence of any argument before either of the two Courts below such a question should not be
permitted to be raised for the first time before this Court as this question is mixed question of facts
and law. He has drawn my attention to the provisions of Section 100 of the Code to argue that in the
second appeal, this Court should interfere only in cases where there is blatant disregard to the law
and a substantive question of law is involved. Therefore, learned counsel has urged that this is not a
fit case for exercise of jurisdiction under Section 100 of the Code.

9. To decide the posed question it would be crucial first to determine the nature of the property in
the hands of Babu Ram which would take us back to the date of death of Tulsi Ram, father of Babu
Ram. It has not been disputed before me that Tulsi Ram had died and mutation was sanctioned on
20.1.1927 vide Ex.P.3 in favour of his five sons including Babu Ram. It is thus evident that Babu
Ram had acquired the right of succession to the estate of his father Tulsi Ram before the
commencement of the 1956 Act. Therefore, the nature of property in his hand must be regarded as
Hindu Coparcenary ancestral property. Before the commencement of the 1956 Act his two sons
acquired the right being co-parcener in the property of their grandfather. The law applicable to pre-
1956 Act would govern the rights of the parties and not the post-1956 Act. Therefore it has to be
necessarily held that in the hands of Babu Ram the property was Hindu ancestral and Co-parcenary
property alongwith his sons Lal Chand and Sohan Lal and on that basis law in post 1956 era cannot
be applied by placing reliance on a judgment of the Supreme Court in the case of Commissioner
Wealth Tax v. Chander Sen, AIR 1986 SC 1753. In the afore- mentioned judgment, the
Supreme Court has held that the property which devolved on a Hindu on the death of his father inte-
state would not constitute HUF property consisting of his own branch including his son. In other
words, the son's son would not have any right in the property of his grand father. Once this
proposition is clear then the view taken by the Courts below has to be approved because in 1927
when the mutation was sanctioned after the death of Tulsi Ram, Babu Ram had acquired 1/5th share
in the property which was Hindu coparcenary and ancestral property. Alongwith Babu Ram his two
sons become co-parceners alongwith their father. Consequently everyone of the three has 1/3rd
shared each in the 1/5th property acquired by Babu Ram from his father Tulsi Ram. However, the
1/5th property of Uggar Sain who had died issueless was share by surviving four brothers including
Babu Ram which became 4/15th share in the hands of Babu Ram and the same has rightly been
regarded as self-acquired property. Therefore, it has been rightly held by the Courts below that the
plaintiff-respondents would be entitled to 1/3rd share in the ancestral coparcenary property and
1/5th share in the self-acquired property which came form Uggar Sain who has died issueless.
Accordingly it has been rightly held that the plaintiff-respondents would be entitled to 27/75th share
each and the defendant-appellants would be entitled to 7/75th share each.

10. Even otherwise no plea with regard to the right of defendant-appellants was raised before the
Courts below that might have led to bringing on record some authoritative facts viz., when the
plaintiff-respondents acquired coparcenary rights in the property of their grand father. The Courts
below appear to have proceeded on the assumption that plaintiff-respondents have acquired right by
birth in the property of their grand father Tulsi Ram and became coparcener with their father to the
extent of 1/3rd share each. It is now well settled that this Court cannot interfere in the findings of
fact in exercise of jurisdiction under Section 100 of the Code unless grave error of law resulting in
miscarriage of justice has been committed by the Courts below. Merely, on the ground that the
Courts would have preferred the other view on the re-appreciation of evidence the jurisdiction of this
Court under Section 100 of the Code cannot be exercised.

For the reasons aforesaid I find no merit in this appeal and the same is dismissed. No costs.
Appeal dismissed.

Product S.No.372671553

This judgement ranked 1 in the hitlist.

Sheela Devi v. Lal Chand, (SC) : Law Finder Doc Id # 124353

2006(4) R.C.R.(Civil) 912 : 2007(1) CivCC 98 : 2007(1) FJCC 91 : 2006(8) SCC 581 : 2006(12) JT
610 : 2006(10) Scale 75 : 2006(Sup6) SCR 874 : 2007(2) Mh.LJ 1 : 2007(1) M.P.L.J. 435

SUPREME COURT OF INDIA

Before :- S.B. Sinha and Dalveer Bhandari, JJ.

Civil Appeal No. 4326 of 2006 (Arising out of SLP(C) No. 4031 of 2006). D/d. 29.9.2006

IMPORTANT

Male Hindu Alienating ancestral property - Son born to male Hindu after alienation cannot
object to alienation.

Sheela Devis - Appellants

Versus

Lal Chand and another - Respondents

For the Appellants :- Nidesh Gupta, Vinod Shukla and Ms. S. Janani, Advocates.

For the Respondents :- Manoj Swarup, Advocate.

A. Hindu Succession Act , 1956, Sections 8 and 6 - Hindu Coparcenary and Ancestral
property held by a person (male Hindu ) - The person alienating the property by way of
sale, mortgage, gift etc. when he had no son - Son born after alienation - A son cannot
object to alienations so made by his father before he was born or begotten. (1975)1 SCC
160 relied.

[Para 11]

B. Hindu Succession Act , 1956, Section 8 - Coparcenary property - A male Hindu

inheriting the property when he had no son - Property in his hands became a separate
property - A son born to him thereafter - As soon as a son was born to him the concept of
the property being a coparcenary property in terms of Mitakshara School of Hindu Law
revived.

[Para 15]

C. Hindu Succession Act , 1956, Sections 8 and 6 - Coparcenary property - Death of male
Hindu after commencement of Hindu Succession Act - Provisions of Section 8 of Hindu
Succession Act are not retrospective in operation and where a male Hindu died before the
Act came into force i.e. where succession opened before the Act , Section 8 of the Act will
have no application. AIR 1966 SC 1879 relied.

[Para 21]

D. Hindu Succession Act , 1956, Sections 6 and 8 - Devolution of interest in coparcenary

property - Where deceased (male Hindu ) had left him surviving a female relative
specified in Class I of the schedule, his interest in the Mitakshara coparcenary property
shall devolve by intestate succession and not by survivorship.

[Para 9]
E. Hindu Succession Act , 1956, Sections 8 and 6 - Hindu Succession (Amending) Act ,
2005 has been enacted to confer right on female heirs even in respect of joint family
property - It has no retrospective application - Death of male Hindu in 1989 - Provisions of
Hindu Succession Act , 2005 are not retrospective in operation and where a male Hindu
died before the Act came into force i.e. where succession opened before the Amending Act
, Section 8 of the Act will have no application.

[Para 22]

Cases referred :

C.Krishna Prasad v. CIT Bangalore,1975(1) SCC 160

Janki v. Nand Ram, 11A. 194.

Bejai Bahadur v. Bhupindar17A. 456:221.A 139 (PC)

Chatturbhooj v. Dharamsi, 9B. 438.

Lal Bahadur v. Kanhaia Lal, 34 I.A. 65 : 29 A. 244 : 4 ALJ 227 : 9 Bom. L.R. 597 : 17 MLJ 228.

Visalatchi v. Annasamy, 5 MHCR 150.

Adurmoni v. Chowdhry, 3 C.1.

Allah Diyo v. Soha, 1942 ALJ 443 : 1942 A.331.

M.T. Pankajammal v. M.T. Parthasarthy Aiyangar, AIR 1946(33) Madras 99.

Muttayan Chettiar v. Sangili Vira Pandia Chinnatambiar, LR I.A. Vol. IX page 128.

Pratap Narain v. Commissioner of Income-Tax, U.P., 63 ITR 505.

Commissioner of Wealth Tax, Kanpur v. Chander Sen, 1986(3) SCC 567.

Commissioner of Income Tax v. P.L. Karuppan Chettiar, 1993 Supp (1) SCC 580.

Additional Commissioner of Income Tax v. M. Karthikeyan, 1994 Supp. (2) SCC 112.

Eramma v. Veerupana, AIR 1966 SC 1879.

Daya Singh (Dead) Through LRs. v. Dhan Kaur, 1974(1) SCC 700.

JUDGMENT

S.B. Sinha, J. - Leave granted.

Interpretation of some of the provisions of The Hindu Succession Act, 1956 (for short "the Act") and,
in particular, Sections 6 and 8 thereof arises for consideration in this appeal which arises out of a
judgment and order dated 10th October, 2005 passed by the High Court of Punjab and Haryana in
RSA No. 1627 of 1994 dismissing an appeal from a judgment and order dated 23rd May, 1994
passed by the Additional District Judge, Patiala affirming a judgment and decree dated 17th May,
1990 passed by the Subordinate Judge 1st Class Samana decreeing the suit filed by the plaintiffs-
respondents herein.

2. The relationship between the parties is not in dispute. Tulsi Ram was the owner of the property.
He died in the year 1889 leaving behind five sons, viz., Walaiti, Babu Ram, Charanji Lal, Hukam
Chand and Uggar Sain. The aforementioned five sons of Tusli Ram were members of a Mitakshara
Coparcenary. We are concerned with the estate of one of the sons of Tulsi Ram, viz., Babu Ram,
whose children are parties before us. It is not in dispute that Uggar Sain died issueless in 1931. The
names of all the brothers were mutated in the year 1927 in respect of the properties left by Tulsi
Ram. Babu Ram died in the year 1989 leaving behind two sons, viz., Lal Chand and Sohan Lal
(Plaintiffs-Respondents) and three daughters (Appellants herein). Lal Chand was born in 1938
whereas Sohan Lal was born in 1956.

3. A finding of fact has been arrived at that the parties are governed by the Mitakshara School of
Hindu Law. The sons of Tulsi Ram were, thus, coparceners. Upon the death of Tusli Ram, Babu Ram
inherited 1/5th share in the property. However, on the death of Uggar Sain, 1/20th share of Tulsi
Ram's property was also devolved on him. Indisputably, the names of the parties were shown in the
revenue records having 1/5th share each. The said order of the revenue authorities came to be
challenged by plaintiffs-respondents herein, inter alia, on the premise that defendants had not
acquired any right, title and interest in the property.
The learned trial Judge in his judgment recorded the following :

"9. As a result keeping in view the evidence on record I hold that the plaintiffs and Babu Ram
had constituted a Joint Hindu Family and out of the land in suit 1/5th share was separate
property of Babu Ram and 4/5th share was ancestral property in the hands of Babu Ram qua
the plaintiffs. The issue is decided accordingly."

4. The suit of the plaintiffs was decreed on the basis thereof. The Appellate Court also affirmed the
decree passed by the learned trial Judge. On a Second Appeal having been filed by Appellants
herein, according to the High Court, the only question which required determination was as to
whether the provisions of Section 8 of the Act would apply to the facts of the present case or the law
as applicable prior to the enforcement of the 1956 Act would apply. The High Court opined that for
the purpose of determination of the said question it was necessary to determine the nature of the
property. Having held that the nature of the property must be recorded as Hindu Coparcenary and
ancestral property, it was stated that the law applicable before the Act came into force would govern
the rights of the parties and not the provisions of the Act.

5. Mr. Nidesh Gupta, learned counsel appearing on behalf of Appellants submitted that the High
Court committed a manifest error in arriving at the aforementioned findings in total disregard of the
provisions of the 1956 Act. The learned counsel would contend that keeping in view the fact that the
succession opened only in the year 1989 when Babu Ram died, the question of applying the law as
was obtaining prior to coming into force of the Act did not arise. It was urged that the provisions
contained in Section 8 of the Act are clear and explicit and in that view of the matter the succession
of the parties would be governed in terms of the Schedule appended thereto.

6. Mr. Manoj Swarup, learned counsel appearing on behalf of Respondents, however, would submit
that having regard to the provisions contained in Section 6 of the Act, the concept of Mitakshara
coparcenary having been saved, the parties would be governed thereby.

7. The Act was enacted to amend and codify the law relating to intestate succession amongst
Hindus. Section 4 of the Act provides for an overriding effect of the Act. Sub-section (2) of Section 4
of the Act reads as under :

"For the removal of doubts it is hereby declared that nothing contained in this Act shall be
deemed to affect the provisions of any law for the time being in force providing for the
prevention of fragmentation of agricultural holdings or for the fixation of ceilings or for the
devolution of tenancy rights in respect of such holdings."

8. Section 6 of the Act deals with devolution of interest in coparcenary property and is in the
following terms :

"6. Devolution of interest in coparcenary property. - When a male Hindu dies after the
commencement of this Act, having at the time of his death an interest in a Mitkashara
coparcenary property, his interest in the property shall devolve by survivorship upon the
surviving members of coparcenary and not in accordance with this Act :

Provided that, if the deceased had left him surviving a female relative specified in class I of
the Schedule or a male relative specified in that class who claims through such female
relative, the interest of the deceased in the Mitakshara coparcenary property shall develove
by testamentary or intestate succession, as the case may be, under this Act and not by
survivorship.

Explanation 1. - For the purposes of this section, the interest of a Hindu Mitakshara
coparcener shall be deemed to be the share in the property that would have been allotted to
him if a partition of the property had taken place immediately before his death, irrespective
of whether he was entitled to claim partition or not.

Explanation 2. - Nothing contained in the proviso to this section shall be construed as

enabling a person who has separated himself from the coparcenary before the death of the
deceased or any of his heirs to claim on intestacy a share in the interest referred to therein."

9. A bare perusal of the said provisions would clearly show that where the deceased had left him
surviving a female relative specified in class I of the Schedule, his interest in the Mitakshara
coparcenary property shall devolve by intestate succession and not by survivorship.

10. We have noticed hereinbefore that a finding of fact has been arrived at that the properties in the
hands of Babu Lal and his brothers were joint family property.
11. The principle of law applicable in this case is that so long a property remains in the hands of a
single person, the same was to be treated as a separate property and thus, would be entitled to
dispose of the coparcenary property as the same were his separate property, but, if a son is
subsequently born to him or adopted by him, the alienation whether it is by way of sale, mortgage
or gift, will nevertheless stand, for a son cannot object to alienations so made by his father before
he was born or begotten. [See C. Krishna Prasad v. C.I.T. Bangalore, 1975(1) SCC 160]. But
once a son is born, it becomes a coparcenary property and he would acquire an interest therein.

12. In N.R. Raghavachariar's Hindu Law Principles & Precedents, 8th Edn. 1987, Section 244, it is
stated :

"..... Besides, it is absolutely immaterial whether the sons were born to the inheritor before
or after the inheritance fell in. But if the property is inherited from a paternal ancestor
beyond the third degree then the property is not ancestral as against the inheritor's sons, and
the inheritor has absolute powers of disposal over it. So also, if the inheritor has neither a
son, son's son nor son's son's son, the property is absolute in the inheritor's hands even
though he may have other relations, for instance, a great-great-grandson or a paternal uncle,
in the case of inheritance from father [Janki v. nand Ram, 11A. 194]. But property which
comes to an inheritor from one of his three immediate paternal ancestors as absolute
property owing to the absence of sons, grandsons or great-grandsons, becomes ancestral
property with the birth of any of them, though an alienation made by the inheritor before
such birth, cannot be impeached. The character of ancestral property is not taken away by
there being a partition of the property in the family of the inheritor, and though a share of
ancestral property allotted to a coparcener on partition will be his separate property as
regards others [Bejai Bahadur v. Bhupindar, 17A. 456 : 221.A 139 (PC) it will be
ancestral property as against the allottee's sons, grandsons, and great-grandsons whether
born before or after the partition. [Chatturbhooj v. Dharamsi, 9B. 438; Lal Bahadur v.
Kanhaia Lal, 34 I.A. 65 : 29 A. 244 : 4 ALJ 227 : 9 Bom. L.R. 597 : 11 CWN 417 : 17
MLJ 228; Visalatchi v. Annasamy, 5 MHCR 150; Adurmoni v. Chowdhry, 3 C.1; Allah
Diyo v. Soha, 1942 ALJ 443 : 1942 A.331]"

13. In Law of Joint Family System, Debts, Gifts, Maintenance, Damdupat, Benami Transaction and
Pre-emption, First Edition 1993, by Dr. Paras Diwan, at page 51, it is stated :

"... They take an interest in it by birth, whether they are in existence at the time of partition
or are born subsequently. Such share, however, is ancestral property only as regards his
male issues. As regards other relations, it is a separate property, and if the coparcener dies
without leaving male issues, it passes to his heirs by succession. A person who for the time
being is the sole surviving coparcener is entitled to dispose of the coparcenary property as if
it were his separate property. He may sell or mortgage the property without legal necessity
or he may make a gift of it. If a son is subsequently born to him or adopted by him, the
alienation, whether it is by way of sale, mortgage or gift, will nevertheless stand, for a son
cannot object to alienations made by his father before he was born or begotten."

14. In M.T. Pankajammal and another v. M.T. Parthasarthy Aiyangar, AIR 1946(33) Madras
99, it was held :

"...... If it were necessary I would on the circumstances above adverted be prepared to hold
that there was no intention on the part of the executant that the son to be adopted had to
share the property with any son that may be born to him subsequently. But as I have already
held on a construction of the settlement deed, the plaintiff became entitled to the property
only on the death of his father and as an adopted son, according to Hindu Law, he had to
share it along with the after-born brother and his step- mother."

15. Although in 1927 Babu Ram had no son and the property at his hands became a separate
property. But, in view of the well-settled principles of Hindu Law, as soon as a son was born to him
the concept of the property being a coparcenary property in terms of Mitakshara School of Hindu
Law revived. The law in this behalf has succinctly been stated in Mayne's Hindu Law & Usage, 14th
edition, at pages 627-628 and 641, in the following terms :

"Where ancestral property has been divided between several joint owners, there can be no
doubt that if any of them have male issue living at the time of the partition, the share which
falls to him will continue to be ancestral property in his hands, as regards has male issue, for
their rights had already attached upon it, and the partition only cuts off the claims of the
dividing members. The father and his male issue still remain joint. The same rule would apply
even where the partition had been made before the birth of male issue or before a son is
adopted, for the share which is taken at a partition, by one of the coparceners is taken by
 him as representing his branch. It was held by the Andhra Pradesh High Court that where a
father divided the family property between him and his sons, the share obtained by him was
his self-acquired property which he could bequeath to his wife."

"Coparceners may hold property separately - An examination into the property of the joint
family would not be complete without pointing out what property may be held by the
individual members as their separate property. All property which is not held in coparcenary
is separate property and Hindu law recognizes separate property of individual members of a
coparcenary as well as of separated members. (1) Property which comes to a man as
obstructed heritage (Saprati bandhadaya) is his separate property. It is not self-acquired
property within the meaning of Hindu law, though in their incidents, there may be no
difference between the two species...."

16. [See also Muttayan Chettiar v. Sangili Vira Pandia Chinnatambiar, LR I.A. Vol. IX page
128].

17. The question again came up for consideration before a Division Bench of the Allahabad High
Court in Pratap Narain v. Commissioner of Income-Tax, U.P., 63 ITR 505 wherein Pathak, J.
(as His Lordship then was) opined :

"It seems to us that it is now well settled, that when Hindu undivided family property is
partitioned between the members of a Hindu undivided family, and a share is obtained on
such partition by a coparcener, it is ancestral property as regards his male issue. They take
an interest in it by birth, whether they are in existence at the time of partition or are born
subsequently. We are of the opinion that it is not correct to say that the share of the
property, upon partition, constitutes the separate property of the coparcener and that it is
only subsequently when a son is born that the property becomes ancestral property or Hindu
undivided family property. The birth of the son does not alter the nature of the property. The
property all along continues to be coparcenary property. But upon the birth of a son all the
rights which belong to a coparcener belong to that son, and the enlarged rights hitherto
enjoyed by the sole coparcener are now abridged within their normal compass."

18. We may, however, notice that the same learned Judge in Commissioner of Wealth Tax,
Kanpur and others v. Chander Sen and others, 1986(3) SCC 567, in a case where father and
his son constituted a HUF and had been carrying on business in a partnership firm, stated the law in
the following terms :

"We have noted the divergent views expressed on this aspect by the Allahabad High Court,
Full Bench of the Madras High Court, Madhya Pradesh and Andhra Pradesh High Courts on
one side and the Gujarat High Court on the other.

It is necessary to bear in mind the preamble to the Hindu Succession Act, 1956. The
preamble states that it was an Act to amend and codify the law relating to intestate
succession among Hindus.

In view of the preamble to the Act i.e. that to modify where necessary and to codify the law,
in our opinion it is not possible when Schedule indicates heirs in Class I and only includes son
and does not include son's son but does include son of a predeceased son, to say that when
son inherits the property in the situation contemplated by Section 8 he takes it as karta of his
own undivided family. The Gujarat High Court's view noted above, if accepted, would mean
that though the son of a predeceased son and not the son of a son who is intended to be
excluded under Section 8 to inherit, the latter would by applying the old Hindu law get a right
by birth of the said property contrary to the scheme outlined in Section 8. Furthermore as
noted by the Andhra Pradesh High Court that the Act makes it clear by Section 4 that one
should look to the Act in case of doubt and not to the pre-existing Hindu law. It would be
difficult to hold today the property which devolved on a Hindu under Section 8 of the Hindu
Succession Act would be HUF in his hand vis-a-vis his own son; that would amount to
creating two classes among the heirs mentioned in Class I, the male heirs in whose hands it
will be joint Hindu family property and vis-a-vis son and female heirs with respect to whom
no such concept could be applied or contemplated. It may be mentioned that heirs in Class I
of Schedule under Section 8 of the Act included widow, mother, daughter of predeceased son
etc."

In paragraph 15, however, the law was stated as under :

"It is clear that under the Indu law, the moment a son is born, he gets a share in the father's
property and becomes part of the coparcenary. His right accrues to him not on the death of
 the father or inheritance from the father but with the very fact of his birth. Normally,
therefore whenever the father gets a property from whatever source from the grandfather or
from any other source, be it separated property or not, his son should have a share in that
and it will become part of the joint Hindu family of his son and grandson and other members
who form joint Hindu family with him. But the question is : is the position affected by Section
8 of the Hindu Succession Act, 1956 and if so, how ? The basic argument is that Section 8
indicates the heirs in respect of certain property and Class I of the heirs includes the son but
not the grandson. It includes, however, the son of the predeceased son. It is this position
which has mainly induced the Allahabad High Court in the two judgments, we have noticed,
to take the view that the income from the assets inherited by son from his father from whom
he has separated by partition can be assessed as income of the son individually. Under
Section 8 of the Hindu Succession Act, 1956 the property of the father who dies intestate
devolves on his son in his individual capacity and not as karta of his own family. On the other
hand, the Gujarat High Court has taken the contrary view."

19. The said decision has been followed by this Court in Commissioner of Income Tax v. P.L.
Karuppan Chettiar, 1993 Supp (1) SCC 580 and Additional Commissioner of Income Tax v.
M. Karthikeyan, 1994 Supp. (2) SCC 112.

20. In Eramma v. Veerupana and others, AIR 1966 SC 1879, this Court observed :

"It is clear from the express language of the section that it applies only to coparcenary
property of the male Hindu holder who dies after the commencement of the Act. It is
manifest that the language of Section 8 must be constructed in the context of Section 6 of
the Act. We accordingly hold that the provisions of Section 8 of the Hindu Succession Act are
not retrospective in operation and where a male Hindu died before the Act came into force
i.e. where succession opened before the Amending Act, Section 8 of the Act will have no
application."

[See also Daya Singh (Dead) Through LRs. and another v. Dhan Kaur, 1974(1) SCC
700]

22. The Act indisputably would prevail over the old Hindu Law. We may notice that the Parliament,
with a view to confer right upon the female heirs, even in relation to the joint family property,
enacted Hindu Succession Act, 2005. Such a provision was enacted as far back in 1987 by the State
of Andhra Pradesh. The succession having opened in 1989, evidently, the provisions of Amendment
Act, 2005 would have no application. Sub-section (1) of Section 6 of the Act governs the law relating
to succession on the death of a coparcener in the event the heirs are only male descendants. But,
proviso appended to sub- section (1) of Section 6 of the Act creates an exception. First son of Babu
Lal, viz., Lal Chand, was, thus, a coparcener. Section 6 is exception to the general rules. It was,
therefore, obligatory on the part of the Plaintiffs- Respondents to show that apart from Lal Chand,
Sohan Lal will also derive the benefit thereof. So far as the Second son Sohan Lal is concerned, no
evidence has been brought on records to show that he was born prior to coming into force of Hindu
Succession Act, 1956.

23. Thus, it was the half share in the property of Babu Ram, which would devolve upon all his heirs
and legal representatives as at least one of his sons was born prior to coming into force of the Act.

24. Except to the aforementioned extent, in our opinion, the Courts below are correct in applying the
provisions of Section 6 of the Act and holding that Section 8 thereof will have no application. The
appeal is allowed in part and to the aforementioned extent. The decree would be modified
accordingly. No costs.

Appeal partly allowed.

This judgement ranked 3 in the hitlist.

Alok Prasad Verma v. Union of India, (Patna)

2001 AIR (Patna) 211

PATNA HIGH COURT

Before :- Sudhir Kumar Katriar, J.

Civil Writ Jurn. Case No. 1994 of 1998. D/d. 5.6.2000.

5.6. 2000

Alok Prasad Verma - Petitioner

Versus

Union of India and others - Respondents

For the Petitioner:- S. N. Jha, Sr. Advocate.

For the Respondents.:- K. D. Chatterjee, Sr. Advocate.

Constitution of India, Articles 14 - Equality before law - Petroleum - Contractual matters -

Grant of retail outlet dealership - Respondent-Indian Oil Corporation issued Letter of
Intent in favour of petitioner for setting up a retail outlet for sale of petroleum products -
Letter of intent was revoked and cancelled on the ground that petitioner did not satisfy
condition as to income limit - Failure of Respondents, to supply materials adverse to
petitioner - Respondents have neither filed counter-affidavit nor assigned any reasons and
have with inexorable obduracy refused to disclose to this Court the materials in support of
the impugned order - Impugned action is grossly arbitrary and suffers from procedural
impropriety as well as illegality, set aside - Letter of intent issued by the Respondents, is
upheld.

[Paras 14.2, 15, 17 and 18]

Cases referred :

1. Bengal (P.) Ltd. v. Union of India (sic), AIR 1964 SC 152).

2. Ajay Hasia v. Khalid Mujib, AIR 1981 SC 487.

3. Associated Provincial Picture House Ltd. v. Wednesbury Corporation, (1947) 2 All ER 680.

4. Asstt. Excise Commr. v. Issac Peter, (1994 AIR SCW 2616).

5. Breen v. Amalgamated Engineering Union, (1971) 1 All ER 1148.

6. Common Cause, a Registered Society v. Union of India, (1999) 6 SCC 667.

7. Council of Civil Service Unions v. Minister for the Civil Service, (1984) 3 All ER 935.

8. Dwarkadas Marfatia and Sons v. Bombay Port Trust, (1989) 3 SCC 293.

9. E. P. Royappa v. State of T. N., AIR 1974 SC 555.

10. Gujarat State Financial Corpn. v. Lotus Hotels (P.) Ltd., AIR 1983 SC 848.

11. Hindeutsch Impex v. State of Bihar, (2000) 2 Pat LJR 140 : (2000 CLC 1560).

12. Khudi Ram v. State of West Bengal, (1975) 2 SCR 832 : AIR 1975 SC 550.

13. Lazarus Estates Ltd. v. Beasley, (1956) 1 All ER 341.

14. LIC of India v. Escorts Ltd., (1986 (1) SCC 264) (SCC p. 344, para 102).

15. Mahabir Auto Stores v. Indian Oil Corpn., AIR 1990 SC 1031.

16. Manager, Govt. Branch Press v. D. B. Belliappa, AIR 1979 SC 429.

17. Maneka Gandhi v. Union of India, AIR 1978 SC 597.

18. Mulamchand v. State of M. P., AIR 1968 SC 1218.

19. M/s. Hari Nagar Sugar Mills Ltd. v. Shyam Sundar Jhunjhunwala, (1962) 2 SCR 339 : AIR 1961
SC 1669.

20. Prem Praveen v. Union of India, (1973) 2 Serv LR 659 (Delhi).

21. P. C. Saxena v. State of M. P.).(1980) 1 Serv LR 788 : (1980 Lab IC 1311) (Madh Pra).

22. Radhakrishna Agarwal v. State of Bihar, AIR 1977 SC 1496.

23. Rajasthan Co-operative Dairy Federation Ltd. v. Maha Laxmi Mingrate Services Pvt. Ltd., (1996)
10 SCC 405.

24. Ramana Dayaram Shetty v. International Airport Authority of India, AIR 1979 SC 1678.

25. Sardar Govindrao v. State of Madhya Pradesh, AIR 1965 SC 1222.

26. State of Orissa v. Bina Pani Dei, AIR 1967 SC 1269.

27. State of W. B. v. B. K. Mandal and Sons, AIR 1962 SC 779.

28. Sterling Computers Ltd. v. M and N Publications Ltd., AIR 1996 SC 51.

29. Tata Cellular v. Union of India, AIR 1996 SC 11.

30. Union of India v. A. L. Rallia Ram, AIR 1963 SC 1685.

31. Union of India v. M.L. Capoor, (1973) 2 SCC 836.

ORDER

Sudhir Kumar Katriar, J. - This writ petition has been preferred with the prayer to quash the order
dated 2-12-1997 (Annexure-16), issued by Indian Oil Corporation Limited (respondent Nos. 2 to 6),
along with the covering letter dated 15-12-1997, whereby the Letter of Intent issued in favour of the
petitioner for setting up a retail outlet for sale of petroleum products at village Gaunaha, District
West Champaran, has been withdrawn. The respondents have not filed counter-affidavit.

2. The respondents had issued an advertisement which appeared in the local dailies of 19-8-1981
(Annexure-1), inviting applications for grant of retail outlet dealership, inter alia, for village
Gaunaha, District West Champaran. This was reserved for unemployed graduates, and there was
also an income limit. The petitioner submitted his application along with others which were
considered by the respondents and the Letter of Intent was issued to the petitioner. Pursuant to the
Letter of Intent, the petitioner had arranged a plot of land, and had also deposited the requisite sum
of Rs. 46,000/- in the bank. Thereafter, the respondents issued letter dated 8-8-1983 to the
petitioner, whereby the Letter of Intent was revoked and cancelled. The petitioner challenged the
same by preferring C.W.J.C. No. 4523 of 1984 before this Court which was disposed of by a learned
single Judge of this Court by his judgment dated 23-9-1996, whereby the said letter dated 8-8-1983
was set aside, and the respondent-authorities were directed to conduct a fresh enquiry into the
matter and pass appropriate orders. I will advert to this judgment in some detail at a later stage.
The respondents accordingly issued show-cause notice dated 30-10-1996 (Annexure-14), to the
petitioner. Cause was shown by the petitioner by his letter dated 14-12-1996 (Annexure-15), placing
all the documents in support of his case. The same has been rejected by the impugned order dated
2-12-1997 (Annexure-16), and the Letter of Intent has been withdrawn. Hence the writ petition.

3. After the impugned order was passed, the respondents issued a fresh advertisment dated 6-1-
1999 (Annexure-18), inviting tenders for settlement of retail outlet at village Gaunaha. By interim
order dt. 10-2-1999, passed by a learned single Judge, the respondents have been injuncted from
granting the dealership without the permission of the Court. The net result is that the retail outlet
dealership for village Gaunaha has not been settled in favour of anybody so far.

4. I would first of all like to indicate briefly controversy in the present case. As stated above, the
retail outlet dealership in question is reserved for unemployed graduates and must satisfy the
condition as to the income limit. The relevant clause of income limit was in the following terms in the
advertisement :-

"i) INCOME LIMIT :

In the case of candidates who are applying against dealership reserved for Unemployed
Graduate and Unemployed Engineering Graduate, parents joint income should not exceed Rs.
 15,000/- per annum. In the case of married women, husband's income should not exceed Rs.
15,000/- per annum."

After the respondents had issued the aforesaid Letter of Intent to the petitioner, the respondents
received objections from various politicians of the area that the petitioner's income exceeded fifteen
thousand rupees and he was not entitled to be considered in terms of the advertisement. The
respondents conducted an enquiry and came to the conclusion that the petitioner's income had
exceeded Rs.15,000/- and was, therefore, beyond the zone of consideration. Accordingly, the
respondents issued the aforesaid letter dated 8-8-1983, revoking the Letter of Intent. The petitioner
challenged the same by preferring C.W.J.C. No. 4523 of 1984, which was disposed of by a learned
single Judge by his judgment dated 23-9-1996 (Annexure-11), wherein it has been observed as
follows :-

"Having considered the submissions made by learned counsel for the parties, I am of the
view that the impugned order dated 8-8-1983 cannot be sustained.

Admittedly no opportunity of hearing was given to the petitioner and, therefore, it cannot be
said that the cancellation of the Letter of Intent is in consonance with the principle of natural
justice. Besides it has not been shown by the respondents that the income of the mother of
the petitioner is more than Rs. 15,000/- so as to disentitle the petitioner for being considered
for grant of detail outlet dealership.

The respondents have not placed on record the enquiry report or any material which had
come to their notice on the basis of which the Letter of Intent was cancelled and revoked. It
was open for the respondents to have cancelled the Letter of Intent after giving opportunity
of hearing to the petitioner and making available to him the complaints which they have
received so that the petitioner could show-cause whether or not the income of his mother
was more than Rs. 15,000/- per annum.

Accordingly the writ petition is allowed and the order dated 8-8-1983 (Annexure-8) is
quashed. Respondent No. 3, Deputy General Manager, Marketing Division, Eastern Region,
Calcutta, shall issue notice to the petitioner to show-cause annexing all such materials within
four weeks from the date of receipt of a certified copy of this order and the petitioner shall
submit his explanation annexing all such documents on which he desires to place reliance
within six weeks from the date of receipt of the show- cause and shall also indicate whether
he desires opportunity of personal hearing and in that event respondent No. 3 shall fix a date
and intimate the petitioner to appear before him for personal hearing. After the enquiry is
completed, respondent No. 3 shall pass appropriate orders and communicate to the petitioner
as early as possible.

Till the matter is not finally decided by respondent No. 3, status quo shall be maintained as
regards the appointment of retail outlet dealer."

(Emphasis mine)

5. Soon after the judgment of the High Court, the petitioner had submitted his letter dated 30-9-
1996 (Annexure-13), to the respondents stating therein that "I request you to give me copies of all
the letters/complaints/representations made to the authorities of the Corporation alleged by
Mukhiyas, Chairman, Zilla Parishad, MLAs etc. so that I can effectively produce my defence before
you and explain the points as existing in the year 1981. . . . . . . ." The respondents never supplied
these letters/complaints/representations to the petitioner, nor any adverse report that came to the
knowledge of the respondent-Corporation, nor copy of enquiry report, if any, was supplied to the
petitioner.

6. Thereafter, Deputy General Manager (Sales), issued show-cause notice dated 30-10-1996
(Annexure-14), calling upon the petitioner to show-cause as to why the Letters of Intent be not
revoked and cancelled on the following grounds :-

"(1) That Shri Jagannath Pandey, Mukhiya, Gram Panchayat Raj, Parsa Gaunaha, West
Champaran vide his letter No. 25/82 (P), dated 16-8-1982 addressed to our Divisional
Manager at Patna represented that you own two cinema halls at Narketiaganj, possess a
large farm at Dhanauji and your annual income exceeds Rs. 15,000/-. Hence, you do not
meet the eligibility criteria. A photocopy of above representation is enclosed herewith.

(2) That a joint petition dated 1-9-1982 to the Hon'ble Minister, Ministry of Petroleum and
Chemicals, New Delhi, submitted by Shri Ram Chandra Mishra, MLA, Shri Rajendra Prasad
Sharma, MLA, Sri Mahendra Narayan Jha, MLA and Sri Mithilesh Kumar Pandey, MLA - all
from, Bihar Bidhan Sabha represented that your annual income far exceeded the limit of Rs.
15,000/- per annum as you are owner of two cinema halls at Narketiaganj, a large farm at
 Dhanauji, own a big house at Chajjubagh, Patna fetching rent of about Rs. 20,000/- per
annum from M/s. Hindustan Fertilizers Corporation Ltd. A photocopy of the above
representation is enclosed herewith.

(3) That the Chairman, Zilla Parishad, Bettiah vide letter dated 16-9-1982 addressed to our
Divisional Manager at Patna and copied to Ministry of Petroleum, New Delhi, represented that
you are not unemployed but self-employed as you own two cinema halls at Narketiaganj and
have an annual income much above Rs. 15,000/-. The representation further stated that one
of your house at Chhajubagh, Patna alone gets rent of Rs. 21,000/- per annum from M/s.
Hindustan Fertilizer Corporation Ltd. A photocopy of above representation is enclosed.

(4) Our enquiries revealed that particulars of income of your parents exceeded than what you
had mentioned in your application dated 16-8-1981 and the enclosures thereto. Kindly
produce relevant Income-tax clearance certificate dated 16-8-1981 that your parent's income
did not exceed Rs. 15,000/- per annum.

You are requested to kindly submit your explanation as laid down in the Order of the Hon'ble
High Court."

7. The petitioner had ultimately shown cause by his letter dated 14-12-96 (Annexure-15), stating
therein that his father was already dead in 1981, and, therefore, the income of his mother had to be
ascertained who has had three sources of income, namely, Himalaya Chitra Mandir, cinema house,
Bhagwati Picture Palace, another cinema house, and agriculture. Insofar as Himalaya Chitra Mandir
is concerned, according to the petitioner, it belonged to Hindu Undivided Family of which his mother
was the Karta and as per the assessment during financial year 1980-81 of the Income-tax Officer,
Bettiah, it was Rs.11,210/- per annum. His mother is entitled to one-third of the same, which is Rs.
3,743/- per annum. In so far as Bhagwati Picture Palace is concerned, on account of decline in the
business of cinema houses in general on account of the onset of T.V. and V.C.R., as per the
assessment of the Income-tax Officer, Bettiah, during the financial year 1980-81, her share of loss
was for Rs. 8,266/-. The agricultural income during the year 1980-81 as per the agricultural income
certificate comes to Rs. 10,000/-. In substance, the income of Smt. Savitri Verma during the
financial year 1980-81 was as follows :-

(+) Rs. 3,743.00

i) Income from Himalaya

Chitra Mandir

ii) Income from Agricultural Source (+) Rs. 10,000.00

Rs. 13,743.00

iii) Loss from Bhagwati Picture Palace (-) Rs. 8,266.00

Rs. 5,477.00

Insofar as the Patna house is concerned, the same either in part or whole does not belong to his
mother. In that view of the matter, the petitioner submitted that the family's total income was Rs.
5,477/- per annum, which was much below the limit of Rs. 15,000/- and, therefore, submitted that
the cause shown by him may be accepted and the Letter of Intent may be carried to its logical
conclusion. The cause has been rejected by the impugned order dated 2-12-97 (Annexure-16). As
stated above, the respondents issued another advertisement dated 6-1-99 (Annexure-18), inviting
applications for settlement of the retail outlet in question. As stated above, interim orders have been
passed with respect to the same by a learned single Judge of this Court by order dated 10-2-99.

8. While assailing the validity of the impugned order, Mr. S. N. Jha, Sr. Advocate, appearing for the
petitioner, submitted that the impugned order is not in terms of the remand order passed by this
Court. The respondents did not supply to the petitioner, copies of the complaints/letters etc.
received by the respondents which led to the enquiry, nor a copy of the enquiry report adverted to in
the impugned order was supplied. He next submitted that the impugned order does not assign any
reason for revoking the petitioner's cause, and in the same vein does not assign reasons for reaching
the conclusion that the family income of the petitioner was more than Rs. 15,000/- during the
financial year 1981-82. He lastly submits that the scope of interference with respect to such matters
is now sufficiently wide and the present case is covered by the same.

9. Mr. K. D. Chatterjee, Sr. Advocate, submits in opposition that the present matter relates to issues
relating to contract which cannot be agitated in writ jurisdiction. Strictly speaking, he submits, even
if there is an error of fact, the same cannot be decided by a writ Court. Errors of facts cannot be
examined in writ jurisdiction. It is not a case of non-observance of statutory provisions. The
respondents have full discretion in commercial matters. He lastly submits that the scope of
interference with cancellation of a Letter of Intent is now clearly enunciated in the judgment of the
Supreme Court, reported in (1996) 10 SCC 405 (Rajasthan Co-operative Dairy Federation
Ltd. v. Maha Laxmi Mingrate Marketing Service Pvt. Ltd.).

10. Having considered the rival submissions, I am of the view that this writ petition has to be
allowed. Learned counsel for the petitioner is right in his submission that the impugned order is not
in terms of the judgment of this Court in ways more than one. This Court had clearly stated in its
earlier judgment that "the respondents have not placed on record the enquiry report or any material
which had come to their notice on the basis of which the Letter of Intent was cancelled and revoked.
. . . . . . ." The respondents have made the same mistake again. In spite of clear direction of this
Court and the request made by the petitioner vide his letter dated 30-9-96 (Annexure-13), copies of
the letters/complaints/representations made to the respondents by the Mukhiyas, Zila Parishad,
MLAs., have not been supplied to the petitioner. Furthermore, the impugned order itself states that
". . . . . . .as per my direction, the Deputy General Manager, Patna EDO carried out the enquiry
through his Field Officers about the income of Shri Alok Prasad Verma and his family and the same
has been submitted to me. . . . ." The same is obviously adverse to the petitioner, and a copy of the
same has not been supplied to him. In that view of the matter, the impugned order is bad in law,
and is fully covered by the judgment of the Supreme Court, reported in AIR 1967 SC 1269 (State
of Orissa v. Bina Pani Dei). The impugned order is not in terms of the earlier order of the High
Court, and is in fact in clear violation of the same, inasmuch as this Court had clearly intended in its
judgment that all the materials on record adverse to the petitioner be supplied to him so that he can
effectively answer the same. The petitioner's contention is, therefore, upheld.

11. Learned counsel for the petitioner is right in his submission that the impugned order does not
assign any reason as to how the respondents have reached the conclusion that the petitioner's
income exceeded Rs. 15,000/-. This is also clearly in violation of the spirit of this Court's order, and
makes the impugned order arbitrary. This Court had clearly observed in its judgment that
". . . . . .besides it has not been shown by the respondents that the income of the mother of the
petitioner is more than Rs. 15,000/- so as to disentitle the petitioner for being considered for grant
of Retail Outlet

Dealership. . . . . . . . ." It is thus manifest that it was incumbent on the respondents to assign
reasons for reaching the conclusion about the income of the petitioner's family. The impugned order
states that "the family income of Shri Alok Prasad Verma during 1981/82 i.e. the date of his
application for the Retail Outlet Dealership at Gaunaha, Dist. West Champaran, Bihar, was more
than Rs. 15,000/-, being the maximum limit of the family income of a candidate for qualifying
himself for the said Retail Outlet Dealership which was mentioned in the Advertisement." It is now
settled by a long line of cases that order which give rise to civil consequences must conform to the
principle of natural justice and all orders rejecting the citizen's claim or stand must assign reasons.
Learned counsel for the petitioner has, therefore, rightly relied on the judgment of the Supreme
Court, reported in AIR 1979 SC 429 (Manager, Govt. Branch Press v. D. B. Belliappa). The
following portion occurring in paragraph 24 of the judgment is illuminating (Para 24) :-

". . . . . . . . . . . . . . the authority cannot withhold such information from the Court on the
lame excuse, that the impugned order is purely administrative and not judicial, having been
passed in exercise of its administrative discretion under the rules governing the conditions of
the service. "The giving of reasons", as Lord Benning put it in Breen v. Amalgamated
Engineering Union, (1971) 1 All ER 1148 "is one of the fundamentals of good
administration" and, to recall the words of this Court in Khudi Ram v. State of West
Bengal, (1975) 2 SCR 832 at p. 854 : AIR 1975 SC 550 at p. 558, in a Government of
laws "there is nothing like unfettered discretion immune from judicial reviewability." The
executive, no less than the judiciary, is under a general duty to act fairly. Indeed, fairness
founded on reason is the essence of the guarantee epitomised in Arts. 14 and 16(1)."

Learned counsel for the petitioner is further right in placing reliance on the judgment of the Supreme
Court, reported in AIR 1965 SC 1222 (Sardar Govindrao v. State of Madhya Pradesh),
paragraph 10 of which is relevant in the present context and is set out hereinbelow for the facility of
quick reference:-

"10. The next question is whether Government was justified in making the order of April 26,
1955? That order gives no reasons at all. The Act lays upon the Government a duty which
obviously must be performed in a judicial manner. The appellants do not seem to have been
heard at all. The Act bars a suit and there is all the more reason that Government must deal
with such cases in a quasi-judicial manner giving an opportunity to the claimants to state
their case in the light of the report of the Deputy Commissioner. The appellants were also
entitled to know the reason why their claim for the grant of money or a pension was rejected
by Government and how they were not considered as not falling within the class of persons
who it was clearly intended by the Act to be compensated in this manner. Even in those cases
where the order of the Government is based upon confidential material, this Court has
insisted that reason should appear when Government performs curial or quasi-judicial
 functions (See M/s. Hari Nagar Sugar Mills Ltd. v. Shyam Sundar Jhunjhunwala,
(1962) 2 SCR 339 : AIR 1961 SC 1669. . . . ."

In the present case, there is no question of any confidential material or sensitive material which
could not have been disclosed as part of the reasons in the impugned order. Learned counsel for the
petitioner is further right in placing reliance on the judgment of the Supreme Court, reported in
(1973) 2 SCC 836 (Union of India v. M.L. Capoor), paragraph 28 of which is relevant in the
present context and is set out hereinbelow for the facility of quick reference :-

"28. In the context of the effect upon the rights of aggrieved persons, as members of a public
service who are entitled to just and reasonable treatment, by reason of protections conferred
upon them by Arts. 14 and 16 of the Constitution, which are available to them throughout
their service, it was incumbent on the Selection Committee to have stated reason in a
manner which would disclose how the record of each officer superseded stood in relation to
records of others who were to be preferred, particularly as this is practically the only
remaining visible safeguard against possible injustice and arbitrariness in making selections.
If that had been done, facts on service records of officers considered by the Selection
Committee would have been correlated to the conclusions reached. Reasons are the links
between the materials on which certain conclusions are based and the actual conclusions.
They disclose how the mind is applied to the subject-matter for a decision whether it is purely
administrative or quasi-judicial. They should reveal a rational nexus between the facts
considered and the conclusions reached. Only in this way can opinions or decisions recorded
be shown to be manifestly just and reasonable. . . . ."

11.1 The net result is that it is now settled by a long line of cases of high authority that action of
Government or Governmental agencies which are quasi-judicial in nature or give rise to civil
consequence, must assign reason in support of the conclusion. The impugned order in the present
case is woefully inadequate and is completely without any reason at all. It only states the conclusion.
The position for the respondents becomes all the more vulnerable because this Court clearly
indicated in its judgment that the earlier order impugned therein was without any reason at all and
was strongly disapproved of by this Court. The respondents have with inexorable obduracy once
again refused to assign reasons in support of the impugned order. The petitioner's contention is,
therefore, upheld.

12. The culpability of the respondents is further accentuated by the fact that they refused to disclose
factual materials before this Court in spite of repeated questions put to the learned counsel for the
respondents during course of oral arguments as to the materials which had led the respondents to
the impugned order. The respondents have not filed their counter-affidavit placing on record the
materials which would justify the conclusion in the impugned order. The respondent-authorities have
confronted this Court with the conclusion that the impugned order is correct and has been passed
after full verification, enquiry, and notice to the petitioner. This Court strongly deprecates this kind
of recalcitrant approach on the part of the respondents where they have undertaken upon
themselves the task of assigning finality to their orders. It is well settled by a long line of cases that
every executive action in this country is subject to the decision of the Court. I am equally reminded
of my own judgment, reported in (2000) 2 Pat LJR 140 : (2000 CLC 1560) (Hindeutsch Impex
v. State of Bihar), paragraph 9.1 of which is relevant in the present context and is set out
hereinbelow for the facility of quick reference:-

"9.1. This Court expresses its strong displeasure on the approach of the respondent
authorities in confronting the Court with their conclusion, rather than making a sincere effort
to justify their action by placing full materials before the Court, enabling the Court to reach
its own conclusions. Reference may be made to the judgments, reported in (1973) 2 Serv
LR 659 (Delhi) (Prem Praveen v. Union of India) as well as (1980) 1 Serv LR 788 :
(1980 Lab IC 1311) (Madh Pra) (P. C. Saxena v. State of M. P.). This Court is thus not
convinced about the mode and manner in which the respondent authorities have reached the
conclusion which is unsupported by cogent logic. In fact, the Court gets an impression that
the respondent-authorities were in an undue anxiety to reject the petitioner's claim, providing
only an apology for reasoning for the reason that it was faced with the order dated 19-1-96
of this Court (Annexure-15)."

In fact, as stated above, the Supreme Court has also observed in Manager, Government Branch
Press v. D. B. Belliappa (supra), that ". . . . .the authority cannot withhold such information from
the Court on the lame excuse that the impugned order is purely administrative and not judicial,
having been passed in exercise of its administrative discretion under the rules governing the
conditions of the service. . . . . ."

13. Learned counsel for the respondents has submitted that matters relating to contract cannot be
agitated in writ jurisdiction. Even if there are factual errors in reaching the conclusion, the same
cannot be decided by a writ Court. It is not a case of non-observance of statutory matters. I am
unable to accede to the contention in the facts and circumstances of the present case for the reason
that the Court shall not normally examine matters relating to contracts, but it must survive the test
of Article 14 of the Constitution of India. In the present case, the impugned order verges on
arbitrariness. Refusal to supply to the petitioner materials adverse to him, failure to assign reasons
in the impugned order, non-disclosure of materials before this Court and the absence of counter-
affidavit, and its refusal to satisfy the Court during course of oral arguments in spite of persistent
queries, verges on arbitrariness. Arbitrariness is anathema to the Constitution of India. Reference
may be made to the judgments of the Supreme Court, reported in AIR 1974 SC 555 (E. P.
Royappa v. The State of Tami Nadu), AIR 1978 SC 597 (Maneka Gandhi v. Union of India),
and AIR 1981 SC 487 (Ajay Hasia v. Khalid Mujib). Had the respondents assigned reasons in
the impugned order and disclosed the materials in support of the impugned order, then this Court
may not have been entitled in writ jurisdiction to examine the adequacy of materials in support of
the impugned order. I am, in this connection, reminded of the classic judgment of the House of
Lords in the case of Council of Civil Service Unions v. Minister for the Civil Service, reported
in (1984) 3 All ER 935. Expanding the enunciation of law by Lord Green in Associated Provincial
Picture House Ltd. v. Wednesbury Corporation, (1947) 2 All ER 680, Lord Diplock in his
speech held that administrative action is subject to Courts by judicial review under three heads: (1)
illegality, where the decision-making authority has been guilty of an error of law, e.g. by purporting
to exercise a power it does not possesses; (2) irrationality, where the decision-making authority has
acted so unreasonably that no reasonable authority would have made the decision; and (3)
procedural impropriety, where the decision-making authority has failed in its duty to act fairly. The
Government or Governmental agencies have normally full discretion in commercial matters, provided
the decision survives the test of Article 14 of the Constitution. As stated hereinabove, the impugned
order verges on arbitrariness. Therefore, the reliance placed by the learned counsel for the
respondents on the judgment of the Supreme Court, reported in AIR 1996 SC 51 (Sterling
Computers Ltd. v. M and N Publications Ltd.), is misplaced for the reason that one proposition
of law enunciated therein completely defeats the respondents' case. It has been laid down in
paragraph 19 of the judgment that ". . . . . . .By way of judicial review, the Court cannot examine
the details of the terms of the contract which have been entered into by the public bodies or the
State. Courts have inherent limitations on the scope of any such enquiry. But at the same time as
was said by the House of Lords in the aforesaid case, Chief Constable of the North Wales Police
v. Evans, (1982) 3 All ER 141 (supra), the Courts can certainly examine whether "decision-
making process" was reasonable, rational, nor arbitrary and violative of Art. 14 of the Constitution."
As held hereinabove, the present case is surely a case of procedural irregularity, as the decision has
not been arrived at fairly. Then it also becomes a case of illegality and irrationality. The impugned
order suffers from the vice of arbitrariness, and falls foul of Article 14 of the Constitution of India.

14. Learned counsel for the respondents lastly submits that there is no scope for interference with
an order cancelling the Letter of Intent, and cancellation of a contract cannot be considered as
arbitrary action violative of any fundamental right. He relied on the judgment of the Supreme Court,
reported in (1996) 10 SCC 405 (Rajasthan Co-operative Dairy Federation Ltd. v. Maha
Laxmi Mingrate Services Pvt. Ltd.). The reliance placed on the judgment is misplaced. The
judgment itself states that when the reasons for cancellation are clearly set out in the cancellation
letter and are germane to the decision not to enter into a contract with the respondent therein, the
extraneous circumstances pointed out by him cannot make the decision mala fide. As has been
found hereinabove, the impugned order is completely devoid of reasons in spite of opportunity given
by this Court by its earlier judgment, and the further opportunity given by this Court in the present
proceeding.

14.1 The judgment of the Supreme Court further lays down that the doctrine of audi alteram partem
also cannot be imported in these circumstances. If the conduct of the respondent therein was such
that it did not inspire any confidence in the appellant, the latter was entitled to decline to enter into
any legal relationship with the respondent as its selling agent. The Letter of Intent merely expressed
an intention to enter into a contract. If the condition submitted in the Letter of Intent were not
fulfilled by the respondent therein and its conduct was otherwise not such as would generate
confidence, the authorities were entitled to withdraw the Letter of Intent. There was no binding
relationship between the parties at this stage and the governmental agency was entitled to look at
the totality of circumstances in deciding whether to enter into a binding contract with the respondent
therein.

14.2The proposition does not apply to the facts and circumstances of the present case for the reason
that the respondents have not set up any case of lack of confidence in the present petitioner.
Secondly, it is only a question of factual verification whether or not the income of the petitioner's
family exceeded more than Rs. 15,000/- during the financial year in question. This Court has already
rejected the respondents' conclusion, and accepted the petitioner's version that his family's income
was less than Rs. 15,000/-. I have also held hereinabove that the entire approach and action of the
respondent-authorities is arbitrary. The culpability of the respondents is accentuated because of its
failure and refusal to act according to the directions of this Court specifically made in the earlier
judgment, apart from its general duty under the law to act fairly and assign reasons for the
impugned order. And I repeat to emphasise that the respondents have not filed any counter-affidavit
in the present case and have with inexorable obduracy refused to disclose to this Court the materials
in support of the impugned order. Furthermore, the said reported judgment involved acts of fraud on
the part of the respondents therein. I am in this connection reminded of the judgment of the Court
of Appeal in England, reported in (1956) 1 All ER 341 (Lazarus Estates Ltd. v. Beasley),
wherein Lord Denning held that ". . . ..I cannot accede to this argument for a moment. No Court in
this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a
Court, no order of a Minister, can be allowed to stand, if it has been obtained by fraud. Fraud
unravels everything. The Court is careful not to find fraud unless it is distinctly pleaded and proved;
but once it is proved, it vitiates judgments, contracts, and all transactions whatsoever. . . . ." Lastly,
the reported judgment clearly states that the appellant's action was free from all arbitrariness.

15. The Supreme Court in its judgment in the case of Dwarkadas Marfatia and Sons v. Bombay
Port Trust, (1989) 3 SCC 293 has held that all actions including contractual dealings of statutory
authority are subject to judicial review. Court can see if such body has followed the statutory
purpose and acted in public interest or not, and not in mala fide or arbitrary or for a collateral
purpose; its action must be reasonable and taken upon lawful and relevant grounds of public
interest. Any authority covered under Article 12 of the Constitution cannot act arbitrarily even in
contractual matters and must act only to further public interest. In that view of the matter, I reject
the respondents' contention that there cannot under any circumstance be interference with
cancellation of Letter of Intent.

16. In the aforesaid premise, I agree with the contention advanced on behalf of the petitioner that
the scope of interference with the action of the Government and the governmental agencies even
with respect to contractual matters have been increasingly recognized and expanded by the
Supreme Court. He relies on the judgment of the Supreme Court, reported in (1999) 6 SCC 667
(Common Cause, a Registered Society v. Union of India). Emphasis has been laid on
paragraphs 41 to 45 (of SCC) : (Paras 40 to 44) of the said judgment which are set out
hereinbelow :-

"41. In a broad sense, therefore, it may be said that those branches of law which deal with
the rights/duties and privileges of the public authorities and their relationship with the
individual citizens of the State pertain to "public law", such as constitutional and
administrative law, in contradistinction to "private law" fields which are those branches of law
which deal with the rights and liabilities of private individuals in relation to one another."

42. The distinction between private law and public law was noticed by this Court in LIC of India v.
Escorts Ltd. in which the Court observed as under (1986 (1) SCC 264) (SCC p. 344, para
102) :-

"Broadly speaking, the Court will examine actions of State if they pertain to the public law
domain and refrain from examining them if they pertain to private law field. The difficulty will
like in demarcating the frontier between the public law domain and the private law field. It is
impossible to draw the line with precision and do not want to attempt it. The question must
be decided in each case with reference to the particular action, the activity in which the State
or the instrumentality of the State is engaged when performing the action, the public law or
private law character of the action and a host of other relevant circumstances."

43. Public law field, since its emergence, is ever expanding in operational dimension. Its
expanse covers even contractual matters, (See Union of India v. A.L. Rallia Ram, AIR
1963 SC 1685; Mulamchand v. State of M.P., AIR 1968 SC 1218 wherein the principles
of restitution and unjust enrichment were applied). (See also State of W. B. v. B. K.
Mandal and Sons, AIR 1962 SC 779 and New Marine Coal Co. (AIR 1964 SC 152)
(Bengal (P.) Ltd. v. Union of India ) (sic).

44. Government decisions regarding award of contracts are also open to judicial review and if
the decision-making process is shown to be vitiated by arbitrariness, unfairness, illegality and
irrationality, then the Court can strike down the decision-making process as also the award of
contract based on such decision. This was so laid down by this Court in Tata Cellular v.
Union of India, AIR 1996 SC 11. Initially the Supreme Court was of the opinion that while
the decision-making process for award of a contract would be amenable to judicial review
under Article 226 or 32 of the Constitution, a breach of a contractual obligation arising out of
a contract already executed would not be so enforceable under such jurisdiction and the
remedy in such cases would lie by way of a civil suit for damages. (See Radhakrishna
Agarwal v. State of Bihar, AIR 1977 SC 1496. But the Court changed its opinion in
subsequent decisions and held that even arbitrary and unreasonable decisions of the
Government authorities while acting in pursuance of a contract would also be amenable to
writ jurisdiction. This principle was laid down in Gujarat State Financial Corpn. v. Lotus
Hotels (P.) Ltd., AIR 1983 SC 848. This Court even went to the extent of saying that the
terms of contract cannot be altered in the garb of the duty to act fairly. See Asstt. Excise
Commr. v. Issac Peter (1994 AIR SCW 2616). Duty to act fairly in respect of contracts
was also the core question in Mahabir Auto Stores v. Indian Oil Corpn., AIR 1990 SC
1031 in which this Court relied upon its earlier decisions in E. P. Royappa v. State of T.N.,
 AIR 1974 SC 555; Maneka Gandhi v. Union of India, AIR 1978 SC 597; Ajay Hasia v.
Khalid Mujib Sehravardi, AIR 1981 SC 487; Ramana Dayaram Shetty v. International
Airport Authority of India, AIR 1979 SC 1678 as also Dwarkadas Marfatia and Sons
v. Board of Trustees of the Port of Bombay, AIR 1989 SC 1642.

45. Public law remedies have also been extended by this Court to the realm of tort."

17. This Court is thus convinced on the strength of a long line of cases of high authority that this
Court in exercise of its writ jurisdiction can in appropriate cases interfere with matters relating to
contract, for example, which are covered by the law enunciated by the House of Lords in Council of
Civil Services Union v. Ministry of Civil Services (1984 (3) All ER 935) (supra). As held
hereinabove, the respondents-authorities are surely guilty of procedural impropriety and, therefore,
in the facts and circumstances of the present case of illegality as well as irrationality. This Court is
convinced that the decision-making authority has failed in its duty to act fairly. They are also guilty
of irrationality because they have acted so unreasonably that no reasonable authority would have
made the decision. They are equally guilty of illegality, because once it is held that the petitioner's
version as to his family income is correct, i.e., it was less than Rs. 15,000/- per annum at the
relevant point of time, it follows as a matter of natural corollary that the respondents have acted
illegally in failing to act as per the terms of the advertisement. As stated hereinabove, culpability of
the respondents is accentuated by their inexorable obduracy to observe the directions given by this
Court so lucidly in its earlier judgment. The net result is that the impugned action is grossly arbitrary
and suffers from procedural impropriety, irrationality as well as illegality.

18. In the result, this writ petition is allowed with costs. The impugned order dated 2-12-97
(Annexure-16), is set aside, the Letter of Intent issued by the respondents is upheld, and the
respondents are hereby directed to take further steps in this connection in accordance with law and
the prescribed procedure without further delay. The respondents are directed to pay a sum of Rs.
5,000/- to the petitioner by way of costs of this writ petition, and deposit a sum of Rs. 5,000/- with
the Member-Secretary, State Legal Services Authority, both within a period of one month from
today.

Petition allowed.

Judgment located by a hyperlink.

Tata Cellular v. Union of India, (SC)

1996 AIR (SC) 11 : 1994 (6) S.C.C. 651 : 1994 (3) Scale 477 : 1994 SCR 122 : 1994 (4) J.T. 532

SUPREME COURT OF INDIA

Before :- M.N. Venkatachaliah, C.J.I., M.M. Punchhi and S. Mohan, JJ.

Civil Appeals Nos. 4947-50 with 4951 and 4952 of 1994 (Arising out of S.L.P. (C) Nos. 14191-94
with 14266 and 17809 of 1993 with T. C.(C) No. 49 of 1993. D/d. 26.7.1994.

26.7. 1994

Tata Cellular - Appellant

Versus

Union of India - Respondent

For the Appellants :- Mr. Soli J. Sorabjee, Mr. M.H. Baig, Mr. Ashok Sen, Mr. Harish N. Salve and Mr.
Gulam Vahanvati, Sr. Advocates, Mrs. P.S. Shorff, Ms. Ritu Bhalla, Mrs. Nilima Chatterjee, Ms.
Smitha Inna Mr. S.S. Shroff, Advocates for Suresh A. Shroff and Co., Mr. Shirish Kumar Misra, Mr.
N.D.B. Raju, Mr. Sahlendra Swaroop, Mrs. Kum Kum Sen, Mrs. Anjali Varma, Advocates for Khaitan
and Co., Mr. R.J. Gagrat, Mr. U.A. Rana and Mr. Anand Prasad, Advocates for Gagrat and Co.,
Advocates.

For the Respondent in M/s. BPL Sanyo Systems and Project Ltd :- Mr. F.S. Nariman, Sr. Advocate.
For the Respondent in M/s. Usha Martin and BPL Sanyo :- Mr. P. Chidambaram, Sr. Advocate.

For the Respondent in M/s. Mobile Telecom Service :- Mr. D.P. Gupta, Solicitor General, Mr. A.B.
Divan, Mr. K. Parasaran, Mr. K.K. Venugopal, Mr. G. Ramaswamy and Mr. N.N. Goswami, Sr.
Advocates, Mr. Ravinder Narain, Mr. Ashok Sagar, Mr. Sumeet Kachwah, Ms. Punita Singh, Mr. D.N.
Mishra, Advocates for JBD and Co., Mr. V.N. Koura, Mr. Ashok Grover, Mr. M.G. Ramchandran, Mr.
S. Fazal, Mr. Nagesh Rao, Mr. P.H. Parekh, Mr. Sanjeev Puri, Mr. Sanjeev Malhotra, Mr. N.
Ganapathy, Mr. Hemant Sharma, Mrs. Anil Katiyar and Mr. T.V. Ratnam, Advocates.

A. Contract Act, 1872, Section 2(d) - Constitution of India, 1950, Article 299 - Tender - It
is an offer which invites and is communicated to notified acceptance - Valid tender -
Requirements is discussed.

[Para 84]

B. Constitution of India, 1950, Articles 299, 14 and 226 - Contract Act, 1872, Section 9 -
Principles of judicial review - Applicability to contractual powers exercised by the
government bodies in order to prevent arbitrariness or favouritism - Tenders - Acceptance
or refusal - Interference by courts - Judicial review is concernes not with decision but
with the decision making process - Factors to be considered.

[Para 85]

C. Constitution of India, 1950, Articles 299 and 226 - Tender - Bias - Government officer in
discharge of his statutory duties recommended acceptance of tender submitted by a
company - The authority to make final decision not vested in him - His son employed in
that company - No, bias could be presumed on that ground only.

[Paras 132, 156]

D. Constitution of India, 1950, Articles 299 and 226 - Tender - The compliance report was
submitted by tenderer - Clerical/typographical mistake creeping in compliance report -
Tenderer later declaring unequivocal compliance with tender conditions - Error related to
non-essential matter i.e. peripheral or collateral matter - No ground for non-
considerations - He could not be punished for the accidental omission.

[Paras 204, 217]

E. Constitution of India, 1950, Articles 299 and 14 - Tender - Non-acceptance -

Opportunity of hearing - License for the operation of "Cellular Mobile Telephone Service"
in Metropolitan cities - Tender of one company selected by Telecommunication
Department - Subsequently, same was revoked without giving reasons - The company
ought to have been heard prior to the revocation of its name from the list of selected
bidder.

[Paras 211, 212, 217]

Cases referred :

1. Manak Lal v. Dr. Prem Chand, 1957 SCR 575.

2. Mahapatra v. State of Orissa, (1985) 1 SCR 322.

3. Ashok Kumar Yadav v. State of Haryana, (1985) 4SCC 417.

4. Metropolitan Properties Company (F.G.C.) LTd., v. Lannon, (1968) 3 All ER 304.

5. Sterling Computers Limited v. M.N. Publications Limited, 1993(1) Scale 36.

6. Union of India v. Hindustan Development Corporation, (1993) 3 SCC 499.

7. Mahabir Auto Stores v. Indian Oil Corporation, (1990) 3 SCC 752.

8. M and N Publication Limited v. M.T.N.L., (1992) 4 DL 24.

9. Erusain Equipment and Chemicals Ltd. v. State of West Bengal, (1975) 2 SCR 674.

10. Moffet Hodqkins v. City of Rochester, (1899) 178 US 373.

11. Mohammad Ejaz Hussain v. Mohammad Iftikhar Hussain, AIR 1932 PC 76(78.
12. G.B. Mahajan v. Jalgaon Municipal Council, (1991) 3 SCC 91.

13. Podder Steel Corporation v. Ganesh Engineering Works, (1991) 3 SCC 273.

14. Vassiliades v. Vassiliades, AIR 1945 PC 38.

15. Ranjit Thakur v. Union of India, (1987) 4 SCC 611.

16. Charan Lal Sahu v. Union of India, (1990) I SCC 613.

17. G.J. Fernandez v. State of Karnataka, (1990) 2 SCC 488.

18. State of U.P. v. Maharaja Dharmander Prasad Singh, (1989) 1 SCR 176.

19. Council of Civil Service Union v. Minister for the Civil Service, (1985) 1 Appeal Cases 374.

20. Secretary of State for Education and Science v. Tameside Metropolitan Borough Council, 1977
Appeal Cases 1014.

21. The King v. Essex Justices (Sizer) Ex parte perkins, (1927) 2 KB 475.

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23. Butcher v. Petrocorp Exploration Ltd., 18 march 1991.

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26. R. v. Secretary of State for the Home Department ex parte Brind, (1991) 1 AC 696.

27. R. v. Askew, (1786) 4 Burr 2186.

28. Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., (1948(1) KB 223 : 1947(2) All
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29. Short v. Poole Corpn, (1926) 1 Ch 66, 91.

30. Emma Hotels Ltd. v. Secretary of the State of Environment, (1980) 41 P and CR 255.

31. R. v. Barnet London Borough Council, ex p. Johnson, (1989) 88 LGR 73.

32. Healey v. Minister of Health, (1995) 1 QB 221.

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35. Punton v. Minister of pensions and National Insurance, (1963) 1 WLR 186.

36. Ashbridge Investments Ltd. v. Minister of Housing and Local Government, (1965) 1 WLR 1320.

37. Padfield v. Minister of Agriculture, Fisheries and Food, 1968 AC 997.

38. Anisminic Ltd. v. Foreign Compensation Commission, (1969) 2 AC 147.

39. Sydney Municipal Council v. Campbell, 1925 Ac 338.

40. Universal Camera Corpn. v. NLRB, ((1950) 340 US 474 at 488-89.

41. R. v. Monopolies and Mergers Commission, ex. p. Argyll Group, (1986) 1 WLR 763.

42. Fasih Chaudhary v. Director General, Doordarshan, (1989) 1 SCC 89.

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44. Haji T.M. Hassan Rawther v. Kerala Financial Corpn., (1988) 1 SCC 166.

45. Tiller v. Atlantic Coast Line Rail Road Company, (1942(318) US 54, 68.
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49. Low v. Town of Madison, 60 A 2d 774 (Conn 1948.

50. Moody v. City of University Park, 278 SW 2d 912 (Ct Civ App Tex 1955.

51. R. v. Altrincham Justices, Ex parte Pennington, (1975) QB 549.

52. R. v. Abingdon Justices, Ex parte Cousins, (1964) 108 Sol J 840.

53. R. v. Camborne Justices, Ex parte Pearce, (1954) 2 All ER 850.

54. R. v. Essex. JJ. Ex p. Perkine (9) Avory, J., (1927) 2 KB 475 (488.

55. R. v. Sussex JJ. Ex p. McCarthy (6) (1924) 1 KB 256 (259.

56. R. v. Salford Assessment Committee, Ex p. Orden (10), Slesser, L. J., (1937) 2 All ER 98 (103).

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58. R. v. Rand, (1866) LR 1 QB 230 (233).

59. R. v. Huggins ((1985-99 All ER Rep 914 : 1895(1) QB 563).

60. R. v. Sunderland Justices (1901(2) KB 357).

61. R. v. Nail Sworth Justices, Exp. Bird (1953(2) All ER 652).

62. R. v. Liverpool City Justices, exparte Topping, (1983) 1 All ER 490.

63. Hannam v. Bradford City Council, (1970) 2 All ER 690 : (1970) 1 WLR 937.

64. R. v. Uxbridge Justices, ex p Burbridge, (1972) Times, 21.

65. R. v. McLean, exp Aikens, (1974) 139 JP 261.

66. University College of Swansea v. Cornelius, 1988 ICR 735.

67. Mohapatra and Co. v. State of Orissa, (1985) 1 SCR 322.

68. District of Columbia v. Pollak, (1961) 343 US 451.

69. Re Brien and Brien (1910(2) IR 84 at P. 89).

70. King (DeVesci) v. Justices of Queen's County (1908(2) IR 285).

71. Union Carbide Corporation v. Union of India, (1991) 4 SCC 584.

72. Wiseman v. Borneman (1971 AC 297).

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74. Sterling Computers Limited v. M/s. M and N Publications Limited, (1993) 1 JT (SC) 187.

JUDGMENT

S. Mohan, J. - Leave Granted.

2. All these appeals can be dealt with under a common judgment since one and same issue requires
to be decided. The brief facts are as under :

The Department of Telecommunications, Government of India, invited tenders from Indian

Companies with a view to license the operation of' Cellular Mobile Telephone Service' in four
metropolitan cities of India, namely, Delhi, Bombay, Calcutta and Madras. Cellular mobile
telephone means a telecommunication system which allows two ways telecommunication
 between a mobile or stationary telephone to another mobile or stationary unit at a location. It
may be within or outside the city including subscriber-cum-dialing and international
subscriber-cum-dialing calls. The last date for submission of tender was 31-3-92. The tender
process was in two stages. First stage involved technical evaluation and the second involved
financial evaluation. Those who were short-listed at the first stage were invited for the second
stage.

3. 30 bidders participated initially at the first stage. The first Tender Evaluation Committee was
constituted consisting of senior officers of the Department of Telecommunication.

4. A Telecom Commission was constituted on 6-4-89 comprising of a Chairman and four full-time
Members :

1. Member(Production).

2. Member (Service).

3. Member (Technology).

4. Member (Finance).

5. It short-listed 16 companies, 12 of which were eligible without any defect. However, in the case of
4 the Committee recommended condonation of certain defects. Those four were :

1. BPL Systems and Projects Ltd.

2. Mobile Telecommunication Ltd.

3. Mobile Telecom Service.

4. Indian Telecom Ltd.

6. Between 19th of May, 1992 and 27 of May, 1992 the recommendations were submitted to the
Telecom Commission. The matter came up for discussion among the members of the Commission.
On 27-5-92 the Telecom Commission accepted the recommendations of the Technical Evaluation
Committee. The Chairman recommended that the short-list of bidders, the recommendations of the
Tender Evaluation Committee and the proposal for financial bids be placed before the Selection
Committee at the earliest.

7. It requires to be noted, at this stage, that a Selection Committee also described as

Apex/Highpower Committee comprising of the Principal Secretary to the Prime Minister and three
other Secretaries to the Government of India had been set up by the Minister for final evaluation of
the bid.

8. Mr. B.R. Nair, a Member (Budget) of Telecom Commission came to be appointed as Member
(Services) on 29-5-92. It appears the selection Committee met a number of times and discussed the
matter with the Minister. He submitted an interim report on 16th July, 1992. During this time the
Committee not only de novo exercised but also modified the short-list prepared by the Technical
Evaluation Committee and approved 14 companies. The Selection Committee also met the
representatives of equipment manufacturers for the selection of the licensees. On 20th July, 1992,
the revised financial bid and the short-list approved by the Telecom Commission were put up before
the Minister for approval. On 24-7-92, further meetings of the Selection Committee were held and
the financial bid document was revised. On 28-7-92, the Selection Committee submitted its final
report. Two bidders, namely M/s. Ashok Leyland Ltd. and M/s. Vam Organics Ltd, were dropped from
out of the short list of 16 bidders. On 29-7-92, Mr. Nair was appointed as Director General of
Telecommunications. He was authorized to exercise all powers of Telecom Authority under Section 3
of the Telegraph Act. The Minister approved the issue of financial bids with modification to the short-
listed companies as recommended by the Selection Committee on 29-7-92. The approval took place
on 30-7-92.

9. On 30-7-92, the financial tenders were issued. It contained seven criteria which had been
approved by the Selection Committee. However, no marks were earmarked for any of the criteria.
17-8-92 was the cut-off date for financial bid document. On this date the bids received from 14
companies were opened and read out to the bidders, who were present. As per the conditions, the
quoted rental ceilings and the cities for which the bids were made, was read out.

10. Another Departmental Tender Evaluation Committee consisting of senior officers examined the
financial bids of the 14 short-listed companies. It adopted some parameter and devised the marking
system which was not done by the Selection Committee. On 2-9-92, the second Tender Evaluation
Committee submitted its recommendations. However, the matter was referred back to it for a fresh
gradation on the basis of 21.75 per cent interest rate in respect of 13 per cent rate which it had
earlier adopted. On 7-9-92 the recommendations were resubmitted. The Adviser(Operations)
recommended only 4 operators based on the evaluation and financial bids. Bharti Cellular was
recommended as first choice for all the four cities. BPL as the second choice for both Delhi and
Bombay, Tata Cellular and Sycell as second choice for Calcutta and Madras. This was done since in
his view no other bidder qualified for licence. On 10-9-92 the Chairman of the Tender Evaluation
Committee directed that all the documents and recommendations be sent to the Selection
Committee for its consideration and for making final recommendations to the Government. When the
file was put up to the Minister on 9-10-92 he made three important notings :

1. In view of the time taken by the High-Powered Committee the selection process be
completed by DoT internally;

2. Only one party may be granted licence for one city; and

3. The actual selection of the licensee should be made primarily on the consideration of
rentals and the marks obtained in respect of foreign exchange inflow and outflow criterion
and experience of the licensee.

11. On 9-10-92, in accordance with this note, a list of 8 short-listed companies was prepared. The
reasons for rejection of the 6 companies were recorded. The Chairman, in his final recommendation,
made on 9-10-92, noted that Bharti Cellular, Modi Telecom and Mobile Telecom did not fulfil the
conditions provided in clauses 2.4.7 of Chapter II of the financial bid which requires that foreign
exchange requirement be met by foreign collaborator. With regard to rejection of 6 bidders Sterling
Cellular was rejected because some investigation against them was pending before the C.B.I.
However, the Minister reversed that decision as to the exclusion of Sterling Cellular and Indian
Telecom Limited from the list of finally approved bidders and directed that the same be considered.

12. On 10-10-92, the list was recast. Sterling Cellular was provisionally selected for the city of
Madras. On 12-10-92, the selected bidders were notified of their provisional selection subject to the
acceptance of rentals and other terms as might be advised.

13. It is under these circumstances, four writ petitions were preferred bearing C.W.P. Nos. 4030,
4031, 4032 and 163 of 1992. The petitioners were :

1. India Telecom (Petitioner in C.W.P. No. 4030 of 1992)

2. Adino Telecom Limited (Petitioner in C.W.P. No. 4031 of 1992).

3. Kanazia Ditital System (petitioner in C.W.P. No. 4032 of 1992)

4. Hutchison Max Telecom Private Limited (Petitioner in C.W.P. No. 163 of 1992)

14. It was urged before the High Court of Delhi that the decision of the Government in selecting 8
parties, two for each of the cities, was bad on the following grounds :

(i) bias

(ii) invoking certain hidden criteria.

(iii) irrelevant considerations.

(iv) by-passing the Selection Committee.

(v) selecting otherwise underqualified parties.

(vi) marketing system which was evaluated by the second Technical Evaluation Committee
for grading various bidders.

15. So manipulated thereby a criterion was evolved which was tailor-made to knock out the
petitioners before the High Court or resulting in knocking out of the petitioner in the case of India
Telecom Limited and Adino Telecom Limited. Hutchison Max Telecom Private Limited urged that it
was the highest in the gradation. Its bid was not considered for a technical and flimsy reason; in
that, the compliance statement required to be furnished with the bids was not complete. Kanazia
Digital System contended that its technical bid was left out on certain wrong premise.

16. Lengthy arguments were advanced before the High Court. On a consideration of those
arguments the writ petitions of Adino Telecom and Kanazia Digital System were dismissed C. W. P.
No. 4030 of 1992 filed by India Telecom was allowed. A mandamus was issued to consider afresh
the grant of licence to the petitioner therein, after evaluating marks for the rental on the basis the
figures of deposits from subscribers given for Delhi and Bombay were accumulated. Similarly, C.W.P.
No. 163 of 1992 in which the petitioner was M/s. Hutchison Max Telecom Private Limited, was
allowed. A direction was issued to reconsider the case of the petitioner, on the basis the compliance
filed by it, as it was in order. To that extent, the order, granting licence to 8 parties (2 for each of
the cities) was set aside. This judgment was pronounced on 26-2-93.

17. After the judgment of the Delhi High Court, the matter was reconsidered in the light of the said
judgment. A revised list of provisionally selected bidders was prepared on 27-8-93. That is as follows
:

Position as on 27-9-93
Position as on 12-10-92

Bombay Bombay

Bharti Cellular Hutchison Max

BPL Projects and Systems Bharti Cellular

Delhi Delhi

India Telecomp Ltd. BPL Projects and Systems

Tata Cellular Pvt. Ltd. Sterling Cellular Ltd.

Calcutta Calcutta

Mobile Telecom Ltd. India Telecomp. Ltd.

Usha Martin Telecom Usha Martin Telecom

Madras Madras

Skycell Mobile Telecom Ltd.

Sterling Cellular Ltd. Skycell

18. It could be seen from the above that Tata Cellular which was originally selected for Delhi has
been left out. Therefore, it has preferred SLP (Civil) Nos. 14191-94 of 1993.

19. M/s. Hutchison Max Private Limited has apprehended that if the judgment of the Delhi High
Court is not accepted it is likely to be displaced from the provisional selection list for Delhi.

20. Indian Telecom Private Limited preferred SLP (C) No. 17809/93, India Telecomp preferred
SLP(C) No. 14266 of 1993.

21. Mr. Soli J. Sorabjee, Learned counsel for the appellant, Tata Cellular, argues that this is a two-
staged tender. In the first stage, the evaluation had to be made on the basis of technical and
commercial considerations. The bidders short-listed at the first stage would then compete in the
second stage, namely, the financial bid. Chapter II contains general conditions framed into the bid.
In paragraph 2. 4. 7 the financial projection of the proposed cellular mobile service was prescribed.
The notes mentioned three criteria :

(i) Entire foreign exchange requirement shall be met by the foreign collaborator.

(ii) Minimum reliance on Indian public financial institutions will be preferred.

(iii) Debt equity ratio should not be more than 2 : 1.

22. It is borne out by records that out of the seven criteria in evaluating the financial bid, six
parameters alone were taken into consideration. For rental parameter the evalution committee took
into account the equity rental ceiling security deposits installation and other charges indicated in the
bid which were the same in the case of all the bidders. This was done in order to arrive at an
equated or effective figure of monthly rental for each bidder. It is not open to the Committee to
totally ignore this criterion when the Chairman's note dated 9-10-92, specifically states that the
Companies would be asked to comply with the conditions of financial bid in Clause 2.4.7 of Chapter
II while granting licences.

23. When this is the position, strangely, the appellant is informed as follows :

"Ministry of Communication

(Telecom Commission)

New Delhi - 110001

No. 92-TM
Dated : 27-8-93

To,

(Kind Attention ...............)

Subject : Tender No. 44-21/91-MMC (FIN) for franchise for cellular mobile telephone service
for Bombay, Delhi, Calcutta and Madras.

Sir,

Kindly refer letter of even No. dated 12-10-92 informing you that you have been provisionally
selected for franchise for providing cellular mobile telephone service at on a non-exclusive
basis.

2. The matter has been reconsidered in the light of the judgment delivered by the High Court
of Delhi in this case. M/s. ......... have now been provisionally selected for providing cellular
mobile telephone service at ......... in place of .......on a non exclusive basis. The other
franchise selected for ........... is M/s. with M/s. ......... of ......... as their foreign partner.

3. The details of the rental, deposits and other terms fixed for the franchise will be intimated
to you shortly.

4. Kindly get necessary formalities completed by 30-9-93.

Yours faithfully,

(S.K. Garg)

DDG (TM)"

24. The second ground of attack is bias. In that, Mr. B.R. Nair, Member of Production in the Telecom
Commission, who was appointed as Member (Service) on 29th May, 1992, participated. From the
Advisor the file went to Member (Service). The note of Mr. Nair is dated 21st May, 1992. He agreed
with the recommendation of T.E.C. that four firms which had some deficiencies should be included in
the short-list. They were B.P.L. Systems and Projects, Mobile Telecom, Mobile Communications and
Indian Cellular. Therefore, B.P.L. was approved by Mr. Nair. Admittedly, Mr. Nair's son is employed
in B.P.L. System and Projects.

25. The High Court in dealing with the allegations of bias made against Mr. Nair held :

"Nexus of father and son in the chain of decision making process is too remote to be of any
consequence. It is quite interesting to note that of the four companies which were having
some deficiencies in their tender documents in the first stage and were recommended for
consideration by the first T.E.C., three companies including B.P.L. made it to the final list of
eight. Plea of bias is not alleged in the selection of other two companies. In the circumstances
it is not possible for us to hold any allegation of bias made against Nair."

The High Court concluded :

"We do not think in a case like this the mere fact that Nair was part of the machinery to make
selection was enough to show that there could be reasonable suspicion or real likelihood of
bias in favour of BPL."

26. This finding is wrong. Mr. Nair's participation from beginning would constitute bias. In support of
this submission, the learned counsel relies on Manak Lal v. Dr. Prem Chand, 1957 SCR 575 and
particularly the passage occurring at page 587 (of SCR) : (at pp.431-32 of AIR), Mahapatra v.
State of Orissa, (1985) 1 SCR 322 at Page 334 and Ashok Kumar Yadav v. State of
Haryana, (1985) 4SCC 417 at paragraph 16 at pages 440 and 441.

27. The English decision on this aspect which will support the contention are :

Metropolitan Properties Company (F.G.C.) LTd., v. Lannon, (1968) 3 All ER 304 at 310.

28. In law, there is no degree of bias.

29. Even otherwise in the implementation of the judgment of the High Court of Delhi, if this
appellant is to be eliminated, it ought to have been afforded an opportunity. Had that been done it
would have pointed out several factors, namely, the omission to consider relevant material, namely,
parameter seven, the prejudice caused by the award of marks after the bids were opened. The DoT
was obliged to disclose the maximum marks for each criterion at the threshold of the financial bid in
the interest of transparency and to ensure a non-arbitrary selection.

30. In the case of most of the bidders the foreign exchange is not met by the foreign collaborator. In
the case of India Telecomp the debt equity ratio is 1 : 1. Their total project cost is stated to be Rs.
101 crores. This means Rs. 50.50 crores represent equity and the other Rs. 50.50 crores represent
external commercial borrowing. In this case, the entire foreign exchange is not met by the foreign
collaborator. Therefore, there is a breach of the fundamental condition of the bid. This would
constitute a disqualification which is a bar at the threshold. Had this condition been strictly applied to
Bharati Cellular., Modi Telecom, Mobile Communications, Hutchison Max Skycell Communication
would have eliminated. Like-wise, Sterling Cellular also did not fulfil this condition.

31. It was a mandatory condition that a foreign collaborator indicated at the first stage of tender,
could not be changed thereafter. Inter alia, on the strength of credentials of foreign collaborators the
bid is considered. If a change is allowed it would amount to technical violation of the bid. Yet in the
case of BPL one of its foreign collaborators, namely, McCaw Cellular withdrew from the collaboration.
In spite of this, the breach was disregarded. The bidder had to furnish proof that he had obtained
the approval of foreign collaboration or filed application before the competent authority. BPL had not
even filed an application before the competent authority yet its tender was considered and
approved. On the very same ground, while Ashok Leyland had been disqualified, equally, it should
have been applied to BPL.

32. Sterling Cellular had been rejected at various stages of consideration on the ground that there
was criminal complaint/investigation pending against it. The Minister has also agreed but reversed
that decision on the last day and directed its consideration for inclusion in Madras on the purported
ground that Madras was the lest popular of the stations and that if any delay is caused due to
complications on account of CBI investigation would have the least adverse effect for lack of
competition. The High Court noted that no material had been brought on record to show that there
was any complaint against Sterling Cellular. But, factually, to the knowledge of the DoT, a criminal
case stood registered against Sterling Cellular in June, 1993, before making the final selection. The
DoT, instead of rejecting Sterling Cellular on that ground, upgraded it from Madras to Delhi in
disregard of the decision of the Minister.

33. Any foreign collaboration has to be approved by an inter-ministerial committee called FIPB. No
proposal for foreign collaboration could be evaluated by the TEC without receiving the approval from
the FIPB. Even under the tender documents the bidders were required to show that they had applied
for such approval.

34. Having regard to all these, the selection is vitiated by arbitrariness or unfairness.

Mr. Harish Salve, learned counsel, appearing for India Telecomp attacks the selection as arbitrary on
the following three grounds :

1. By-passing the Apex Committee and entrusting to a Committee which did not follow the
norms.

2. Certain hidden criteria which were not disclosed earlier, were applied not as parameters,
but for elimination.

3. There are five glaring errors in the selection. One such is, in the case of Sterling Cellular. It
supports its bid on the strength of the foreign exchange that may be obtained from foreign
tourists. This is something incomprehensible.

35. Elaborating these points it is urged that after short-listing, the selection committee did not select
at tall. The counter-affidavit filed on behalf of the Government of India does not mention that there
was a delay by Apex Committee, as held by the High Court. On the contrary, the facts disclose there
was not delay whatever.

36. Two hidden criteria were postulated. (i) Persons having less than one lakh experience will not be
considered. (ii) If two bidders have the same collaborator in relation to foreign exchange that bid will
not be considered. These criteria were evolved after 18th August, 1992. When one looks at the
conditions of tender, paragraph 2, 2.1 talks of subscriber's capacity. That does not mention about
the nature of experience. Equaly, paragraph 2.4.5 makes no mention about one foreign collaborator
for each bidder. In the case of Bharati Cellular it was having only eighty one thousand lines. The
criterion of 80 thousand GSM was prescribed only to favour Bharati Cellular.

37. If no change of foreign collaborator is allowed at the stage of financial assessment after the
technical committee has passed its bid, in the case to permit such a change to BPL, is clearly
arbitrary.
38. Indian Telecom was excluded because it has the same foreign collaborator, namely, Telecom
Malaysia. However, in the case of Bharati Cellular, that test was not applied. Its collaborator is
Talkland Vodaphon. The same Vodaphone has been the collaborator with Mobile Telecom. This would
amount to adopting double standards.

39. As against BPL the attack is as under :

1. BPL did not apply to SIA/FIPB but to Reserve Bank of India(RBI).

2. The foreign collaborator was changed in the middle, as submitted above, inasmuch as
McCaw Cellular withdrew. The joint venture is gone when McCaw was given up.

3. Mr. Niar was biased in favour of BPL.

4. Total marks awarded are five. The idea is indigenous equipment whereas what has been
done by BPL is to quote higher custom duty.

40. In so far as Sterling Cellular is preferred for Delhi that again is arbitrary. There is a C. B. I.
Inquiry pending against it. Secondly, the foreign exchange is sought to be procured by international
roaming and it is awarded 10 marks out of 10.

41. Mr. Ashok Sen, learned counsel, appearing for the Indian Telecom submits, firstly, the limits of
judicial review in the matter of this kind will have to be examined. Such limits could be gathered
from Sterling Computers Limited v. M.N. Publications Limited, 1993(1) Scale 36 and Union
of India v. Hindustan Development Corporation, (1993) 3 SCC 499 which lay down the
methods of reaching conclusion.

42. Generally speaking, in entering into contracts, the public authority is not like a private person.
The question to be asked is have the guidelines been laid down, if so laid down, have they been
observed ? In this case, Indian Telecom was originally allotted Delhi. By reason of reconsideration
pursuant to the judgment of the High Court of Delhi, it has now been allotted Calcutta. This is
wrong.

43. In clause 7 of General Conditions it is stipulated that there can be no change of foreign
collaborator. In clause 13, a certificate requires to be produced. In number of cases no such
certificate has been produced. Paragraph 2. 4. 5 of Chapter II of General Conditions lays down one
of the parameters is the experience of foreign operating partner. In the case of Bharati Cellular, SFR
France company has no experience. Talkland's sole function is service. Therefore, its experience
should not have been added. In paragraph 1.4 the nature o services is listed. These are not the
services offered by Talkland. Hutchison Max did not produce any certificate; likewise Bharti Cellular.

44. The argument on behalf of Ashok Layland, petitioner in Transferred Case No. 49 of 1993 is that
it was an eligible bidder but has never been communicated the reason as to why it came to be
rejected. On 29-9-92, the Committee records that reasons must be given. Yet no reasons are
furnished to the petitioner. Even though the Tender Evaluation Committee held the petitioner to be
qualified yet its bid had been rejected without communicating any reason whatever. In Mahabir
Auto Stores v. Indian Oil Corporation, (1990) 3 SCC 752 at paragraph 18 at page 763 this
Court has held that there is an obligation to communicate the reasons.

45. Mr. Kaura, learned counsel appearing for the Bharti Cellular, in opposing the arguments
advanced on behalf of the appellants, submits that service operation should not be read in a narrow
sense. In telephone industry there could be operation as well as service. While defining the service,
relying on paragraph 2.1 is wrong because services are defined in paragraph 1.4 whereas paragraph
2.1 refers only to obligations of licensee.

46. Besides, the services are also essential, they should be regarded as a part of operation.

47. Mr. G. Ramaswami, learned counsel, appearing for Skycell state that his client has been awarded
Madras City. It is submitted that in the absence of mala fides the individual marking system should
not have been interfered with as far as foreign exchange is concerned. In the case of his client
regarding the foreign exchange sourcing, inflow is more than the outflow.

48. Mr. Anil B. Divan, learned counsel, appearing for Mobile Telecom Services submits that though
this respondent supports that judgment of High Court, in so far as it is allowed the writ petition filed
by Hutchison Max, the same ought to be reconsidered. The bid of Hutchison Max was rejected since
it had filed an incomplete compliance report. The High Court has chosen to accept the bid of
Hutchison Max on four grounds :

1. The approach of the Department was hypertechnical.

2. Compliance statement is akin to verification in a pleading. It cannot be placed on a higher

pedestal than verification.
 3. The Department ought to have allowed rectification since it was purely a mistake
unintentionally made.

4. Inasmuch as the Department had allowed a favourable treatment in the case of Indian
Telecom Private Limited and Tata Cellular the same treatment ought to have been accorded
to Hunchison Max as well. These findings are attacked on the following grounds :

49. The tender documents both technical and commercial bid as well as the financial bid clearly lay
down the manner of compliance. Clause 3 of the technical bid states, in the event of the compliance
report not being enclosed with the offer, the offer shall not be considered. Equally, in relation to
financial bid, Chapter I states that any offer received after the due date and time shall be rejected.
The various other clauses also postulate a strict compliance. If, therefore, the bid is incomplete the
offer ought to have been rejected. Hence, there is no question of the Department of
Telecommunication condoning the defect. If the view of the High Court is to prevail it would amount
to allowing a post-tender modification on a select basis, that is, on the basis whether the mistake
was intentional or unintentional. Where the Department has chosen to reject, the High Court cannot
sit in judgment. To state it is like verification of pleading is to overlook that the pleadings are
governed by the Code of Civil Procedure which permits amendments of pleadings as well as the
verification. That is not the case here. The comparison with Indian Telecom the Tata Cellular is also
incorrect. In the case of Indian Telecom there is an unconditional compliance. Only in the covering
letter a view has been expressed about the economic viability of the services and the bidder's
preference. Hence, it cannot be contended that the bid was conditional, in any manner. Similarly,
Tata Cellular was not accompanied in this regard.

50. The allegation against this respondent that the foreign exchange requirement has not been met
is incorrect. The documents filed by the respondent clearly show that there is a surplus of
approximately three crore rupees, available from the foreign collaborator, in the first year. The
allegation of India Telecomp that the bidder was responding on the basis of one party per City and
the proposal for licence for a period of 20 to 25 years is factually incorrect. Equally, to state that this
respondent quoted a lower customs duty and thereby got higher marks is incorrect. The financial bid
of the respondent shows that this had taken customs duty at 95 per cent for the first year when the
backlog of the equipment is to be imported. For the subsequent years, the projection was made on a
reduced customs duty in view of the announced policy of the Government to reduce customs duty
and to bring them in line with international levels.

51. The argument that there is a common collaborator of Bharti Cellular and Mobile Telecom
Services proceeds on the footing that Bharti Cellular is collaborating with Talkland. That Talkland has
a service privately in agreement with Vodaphone Group. Thus, Vodaphone is the common foreign
collaborator of Bharti Cellular and Mobile Telecom. This is not correct. Mobile Telecom has its foreign
partner for the purpose of setting up a leading cellular network co-operator of U.K., namely,
Vodaphone. Vodaphone as network operator is the owner of Vodaphone cellular network. It is
responsible for the setting up of the network in U. K. where cellular network operator can also be a
service provider. Vodaphone has been issued a licence as the cellular network operator under
Section 7 of the U. K. Telecommunications Act of 1984. It is known as a public telecommunication
operator. Vodaphone has bout 30 service providers in U. K. including Talkland. It has no equity in
Talkland. There are no common Directors on the boards of two companies. Vodaphone is the foreign
collaborator of Mobile Telecom. It has no collaboration agreement with Bharti Cellular. In regard to
Bharti Cellular it has only a collaboration agreement with Talkland which is a mere service provider.

52. Arguing on behalf of Sterling Cellular Mr.K. Parasaran, learned counsel submits that the technical
competency and capacity to execute the contract by this respondent with its joint venture partner is
not in doubt. Sterling Cellular was short-listed by Technical Evaluation Committee itself. It was
amongst the 12 tenderers short-listed in the first list. The joint venture collaborator of Sterling,
namely, Cellular Communication is a reputed international company having large scale operation in
U.S. A. As regards the foreign exchange inflow and outflow it is submitted that Sterling Cellular has
projected its stand that the foreign exchange inflow will be from foreign tourists and business
travellers visiting the city of Delhi. The expression "international roaming" has been used in relation
to such foreign tourists and business travellers. Internationally, cellular phones are used by two
categories of persons, (1) subscribers residing in the city who would use the phone on a permanent
basis. (2) the tourists and business travellers visiting the city who would use the phone on a
temporary basis. Inasmuch as the foreign tourists and foreign business travellers make the payment
in foreign currency it will be a source of foreign exchange. What is required under the tender
condition is the projection of foreign exchange inflow and outflow relating to the cellular phone
contract. This means inflow in foreign exchange a result of the operation of cellular phone system.
Hence, the earning from tourists and business travellers is a vary relevant consideration. Like this
respondent, Hutchison Max selected for the Bombay City also projected for the foreign exchange
openings by the use of cellular phone by tourists and business travellers. The argument that the
foreign tourists and business travellers are not likely to use cellular telephone is not correct since the
calls made through the cellular telephones are not only cheaper but also available as a 24 hours
companion. That, of course, is a greater-facility. In the note made by the Minister it has been
mentioned that the respondent has undertaken to be bound by conditions contained in the tender
documents to the effect that the entire foreign exchange requirement shall be met by the foreign
collaborator. In fact, the foreign collaborator has also confirmed this.
53. As regards the allegations of C.B.I. inquiry, it is submitted that the learned Judges of the High
Court perused the note of the Chairman Telecom Commission. It was only after this the Court held
that there were no strictures against holding company of S.C.L. by the name Sterling Computers
Limited, in M and N Publication Limited v. M.T.N.L., (1992) 4 DL 24. It was further held that it
appears to have been punished for no sin of it. There was no CBI inquiry on the date of the above
judgment. It was after the judgment dated 10th July, 1993, the FIR was filed which has been
allowed to be proceeded with by way of direction in petition under Section 482 of the Criminal
Procedure Code. This Court in Erusain Equipment and Chemicals Ltd. v. State of West Bengal,
(1975) 2 SCR 674) has laid down that pending investigation black listing cannot be permitted. The
said ratio will apply to this case.

54. Mr. K.K. Venugopal, learned counsel appearing for Hutchison Max submits that this respondent
was rejected by the committee. That was questioned in the Writ petition. The High Court directed
reconsideration of its bid. With regard to compliance statement it was stated that the company
agrees to fully comply with all paragraphs of Chapter II of the General Conditions and Chapter V;
Tariffs of Document No. 44-21/91-MMC(FIN) without any deviation and reservation. No doubt, there
is a failure, in the first instance, to state about compliance with Chapters II and IV. This is an
accidental omission. It amounts to a clerical error as laid down in Moffet Hodqkins v. City of
Rochester, (1899) 178 US 373. If it is a mistake in relation to non-essential or collateral matter it
could always be condoned. The Privy Council in Mohammad Ejaz Hussain v. Mohammad Iftikhar
Hussain, AIR 1932 PC 76(78) has held that it is always a matter of form and not of substance.
Other argument is advanced that there is a defect in the compliance statement.

55. The alternate submission is, the question of error does not arise since the compliance statement
was filed on 11-9-92 while the contract came to be awarded only on 12-10-92. In such case the
question would be what is the scope of judicial review ? The Court could interfere in the following
three categories of cases :

1. Quasi-judicial

2. Administrative, for example, price fixing

3. Award of contracts.

56. Here, the matter is technical in relation to award of contract. Judicial review does not mean the
Court should take over the contracting powers.

57. The parameters for interference in such matters would be :

(i) Mala fide

(ii) Bias

(iii) Arbitrariness to the extent of perversity.

58. If none of these is present, the Court should not interfere. It must be left to the authorities. The
contrary arguments advanced on behalf of the appellants against this respondent are not tenable.

59. Mr. F.S. Nariman, learned counsel appearing for BPL in the foremost argues by way of
preliminary submissions that three questions will arise at the threshold.

(a) The scope and ambit of judicial review with regard to decisions bona fide arrived at in
tender cases (pre contract).

(b) The applicability of judicial review in these cases.

(c) The interference under Article 136 of the Constitution where the power of judicial review
has been exercised by the High Court under Article 226.

60. It is submitted that the reasonableness in administrative law means to distinguish between
proper use or improper use of power. The test is not the Court's own standard of reasonableness.
This Court has reiterated this proposition in G.B. Mahajan v. Jalgaon Municipal Council, (1991)
3 SCC 91 (in paragraphs 43-46). There is a possibility of fallibility inherent in all fact findings. To
insist upon a strict compliance with each and every tender document is not the law. This Court
upheld the waiver of technical, literal compliance of the tender conditions in Podder Steel
Corporation v. Ganesh Engineering Works, (1991) 3 SCC 273. In the present case, the short-
listing, at the first stage, the allotment of cities at the second stage and the selection of franchisees
qua cities at the third stage were after evaluating the financial bid by a collectivity of persons at
different level. Therefore, possibility of elimination of arbitrariness is conceived in the system itself.
Further, the High Court has analysed properly and come to the proper conclusion. That being so, this
Court will not interfere by exercising its powers under Article 136 of the Constitution of India. The
argument about hidden criteria would not affect or benefit this respondent directly or indirectly. Even
otherwise, the hidden criteria cannot be impugned. There is no mention of any particular criterion on
the basis of which the selection was to be made. At the second stage what was required to be kept
in mind were the parameters mentioned in paragraph 2.4. The criteria for selection to each of the
four cities had to be provided inter alia because the tenderers did not tender for one city alone but
for more than one. The allegation of bias on the part of Mr. Nair is without substance. It is
submitted, whenever disqualification on the ground of personal involvement is alleged :

(i) the person involved (for example related) must be the decision-maker.

(ii) there must be sufficient nexus between the decision-maker and the party complaining in
order to justify the real likelihood of bias.

61. After a decision is reached the standard of proof of bias is higher as laid down in Vassiliades v.
Vassiliades, AIR 1945 PC 38. This decision has been referred to by this Court in Ranjit Thakur v.
Union of India, (1987) 4 SCC 611. The learned counsel after referring to the relevant case law
submits that cases of bias and ostensible bias had to be regarded in the light of their own
circumstances. In this case Mr. Subhash Nair is only one of the officers in BPL., which has over 5500
employees and 89 officers of his rank in 27 offices all over India. Mr. Nair was not the decision-
maker at all. He was one of the recommending authorities. His involvement in the approval and
selection of the tender was indispensable. He was originally the Member (Services) on 29-5-92.
Thereafter he became Director General, Telecommunications by a Notification issued on 28-7-92 by
the President of India. As such, he was to exercise all powers of Telegraph Authority under Section
3(6) of the Act. Therefore, the High Court was right in applying the doctrine of necessity. This
doctrine has come up for discussion in Charan Lal Sahu v. Union of India, (1990) I SCC 613.

62. Whatever it may be, Indian Telecom cannot take the point of bias. It took the chance and benefit
of being short-listed despite the knowledge of Mr. Nair's involvement. Equally, Tata Cellular did not
raise the allegation of bias in the High Court. In fact, it opposed the plea of bias.

63. No doubt, this respondent dropped McCaw as a foreign collaborator. That does not amount to
change where one out of two or three collaborators is dropped. This foreign collaborator was
required as Condition No. 7 only in financial bid documents not in tender documents. This
respondent submitted financial bid on 17-8-92 showing only two of the collaborators, McCaw was
not shown as that was already dropped out. Therefore, the High Court rightly held the McCaw was
not taken into consideration in awarding marks for foreign partners' experience. The object of the
first stage was not to allot the franchise but to short-list the parties.

64. The learned Solicitor General produced the copies of the relevant documents in the file and took
us through the same. It is submitted, after outlining the process of evaluation in the second stage
six parameters were adopted by the Committee consisting of Telecom experts who are none other
than the senior officers of the Department of Telecommunications. The parameters are as follows :

1. Quoted rental ceiling

2. Project financing plan

3. Foreign Exchange inflow and outflow.

4. Project's plan for cellular equipment within the country including the tie-up with the
proposed Indian manufacturers.

5. Experience of foreign, operating partner and.

6. Financial strength of the parameters/partner companies.

65. These parameters were assigned marks. The evaluation report including the ranking arrived at
by the tender evaluation committee was then put up to the Telecom Commission for further
consideration and selection. Due to technical considerations not more then two bidders per city could
be accommodated. Paragraph 14 of the bid conditions provided that each bidder must furnish a
declaration in a specified form to the bid documents. The declaration given by Hutchison Max was
complete. However, its bid had to be rejected on merits in spite of securing high marks.

66. M/s. India Telecomp secured the second place for Calcutta. Inasmuch as they had the same
foreign partner as Usha Martin which secured a higher place than India Telecomp, it was rejected
and the choice went to the next bidder in the marking list. After the above consideration were taken
into account, the remaining companies were selected which led to the writ petition. Pursuant to the
High Court directions the matter was reconsidered and selection have been made as was done
earlier.

67. The principal objection of the Union of India is that the High Court was not justified in
scrutinising the tender process in such detail. The minute examination is unwarranted because the
High Court cannot constitute itself the selecting authority. However, no appeal is preferred, as
otherwise, it would have further delayed the introduction of very valuable communication facility in
this country. Beyond that, it has no particular interest as to who is selected. However, it becomes
necessary to answer the allegations made about the actual selection and whether there was any bias
on the part of the selection committee. The selection process was dictated by the exigencies of the
situation.

68. It is a question, as to what one could settle for, in the given circumstances. The Government
was embarking upon totally new technology project, for the first time. At that stage, it was
impossible to predict what kind of response will there be. Therefore, it is impossible to predicate the
cut-off limits which could be set or which conditions have to be relaxed or softened. The allegation of
bias, it is held, must be a case of reasonable possibility or likelihood of bias. In this case, there is no
such reasonable likelihood. Mr. B. R. Nair was not influenced directly, or in any other manner, subtle
or otherwise. He did not, in fact, participate in any of the significant or crucial stage in the selection
process. Even otherwise, the relationship is not such as to give a reasonable apprehension of bias.
In support of this argument reliance is placed on Manak Lal (supra) and Ashok Kumar Yadav v.
State of Haryana, (1985) 4 SCC 417 at 441. As regards the parameter in relation to project
financing it was kept in view by taking into account the estimated number of subscribers, installation
charges, monthly rental, any other charges etc. they were included in the competition the other
parameters of the bidders were treated on the same footing as regards this parameter is concerned.
Concerning rental, it was specifically averred in the counter before the High Court that the other
charges had also been included calculating quoted rental.

69. It is not correct to contend that Talkland's experience is not relevant. In the United kingdom the
operation of mobile cellular System is handled by the network corporator and a proper service
provider, acting together. The licensee is required to perform the combined function of a network
operator as well as service provider. The duties and function of a licensee are not limited to making
available the services as defined. In fact, the principal obligation of the licensee is expressed
generally in paragraph 2. 1. 1. A reading of the other clauses makes it clear that it is incumbent
upon the licensee to provide services. Therefore, the experiences of a network operator and the
service provider are both important and relevant.

70. In the case of Bharati cellular the attack is that the cut-off came to be reduced to 80, 000
subscribers to accommodate it. Bharti cellular mentioned in its tender, as on 31-12-91, the name of
S. F. R. France which had 80, 000 subscribers. By 31-12-91, it would have got increased to more
than one lakh. In August 1992, when the bids were submitted S. F. R. 's line of experience could
reasonably be expected to be more then one lakh. S. F. R. France had a G. S. M. licence. Having
regard to these facts, it would not be an unreasonable estimate, for the experts, to conclude that
Bharti Cellular was having experience of one lakh lines.

71. It is alleged that the debt equity ratio of Skycell has not been properly taken. Skycell ratio was
1.5 and was correctly assigned 3 marks.

72. Tata Cellular alleges that Bharti Cellular, Mobile Telecom, Sterling and Skycell have breached
note (ii) under para 2.4 which provides that minimum reliance on Indian Public Financial institutions
will be preferred. The bid pro forma made distinction between loans from Public Financial institutions
and banks. The criticism of Tata confuses this requirement with loan from Banks. The criterion, it is
submitted, was correctly applied.

73. In the evaluation of process open market purchase was left out of consideration.

74. Since Skycell bid for Madras showed that they had projected their operations in Madras for initial
years, would be below profitable levels. In such a case, no dividend would have to be paid to the
foreign collaborators. Accordingly, it was concluded that the foreign exchange inflow position was
better.

75. International roaming is a relevant consideration. From the tender document it will be clear that
it provides for facility of roaming to visitors. Roaming facility for a tourist is available in the G.S. M.
system. Even if this condition has been relaxed in favour of certain bidders, there is nothing wrong.
Reliance is placed on G.J. Fernandez v. State of Karnataka, (1990) 2 SCC 488.

76. With regard to the foreign collaborator of BPL there was no change. French Telecom is one of the
foremost in the world in this technology. It remained as foreign collaborator of B. P. L. Dropping out
of McCaw did not violate the bid conditions which were really aimed at preventing a new and,
therefore, unknown collaborator being introduced at the financial bid stage. The second Technical
Evaluation Committee did not see this as a violation. In any event, where the judgment of the High
Court had been given effect to and a proper evaluation has been done no interference is warranted.

77. Mr. Soli. J. Sorabjee, learned counsel, in his reply, would submit that as regards the scope of
judicial review the American cases cited by Mr. K. K. Venugopal would not apply. As laid down in
State of U.P. v. Maharaja Dharmander Prasad Singh, (1989) 1 SCR 176 at 202, judicial
review is confined to decision making process. This being an administrative action the scope of
judicial review could be gathered from Council of Civil Service Union v. Minister for the Civil
Service, (1985) 1 Appeal Cases 374. In Secretary of State for Education and Science v.
Tameside Metropolitan Borough Council, 1977 Appeal Cases 1014 the law has been stated as
to when subjective satisfaction could be interfered with under judicial review. This Court also had
occasion to deal with similar contracts and stated the law relating to judicial review in Sterling
Computers Limited v. M/s. M. and N. Publications Limited, (1993) 1 SCC 445 at 455 and
458 paragraph 19. Then again, in Union of India v. Hindustan Development Corporation,
(1993) 3 SCC 499.

78. The point against Hutchison Max is, the defect in its tender, came to be pointed out, requiring it
to comply with the same. In view of the defect Hutchison Max came to be excluded.

79. Mr. Nair's participation from the beginning would constitute bias in law.

80. Mr. Ashok Sen, in his reply, would state that in the case of Hutchion Max the mistake was
committed in the offer with regard to compliance statement. The principle of bias, as laid down in
The King v. Essex Justices (Sizer) Ex parte perkins, (1927) 2 KB 475, would apply. Similar
passage occurs in De smith's Constitutional and Administrative Law (Fourth Edition) page 268.

81. Mr. Harish Salve, in reply, would urge that the hidden criteria were evolved in relation to
common foreign collaborator. This shows that there was lack of candour on the part of the Union. It
is mentioned that Talkland was taken into consideration. It is not so, as seen from the file. The
conditions were tailor-made to suit Bharti Cellular and BPL.

82. Mr. K.K. Venugopal would urge that the rule relating to judicial review should not be applied here
because it is one of selection by an administrative process.

83. Having regard to the above arguments we propose to deal with the matter from the following
five aspects :

1. The scope of judicial review in matters of this kind.

2. Whether the selection is vitiated by arbitrariness ?.- (a) regarding financial projection and
(b) regarding rental.

3. Bias of Mr. Nair - whether affected the selection ?

4. Whether the Apex Committee has been by passed ?

5. Evolving off hidden criteria - whether valid ?

Point 1 - Scope of Judicial Review :

84. A tender is an offer. It is something which invites and is communicated to notify acceptance.
Broadly stated, the following are the requisites of a valid tender :

1. It must be unconditional.

2. Must be made at the proper place.

3. Must conform to the terms of obligation.

4. Must be made at the proper time.

5. Must be made in the proper form.

6. The person by whom the tender is made must be able and willing to perform his
obligations.

7. There must be reasonable opportunity for inspection.

8. Tender must be made to the proper person.

9. It must be of full amount.

85. It cannot be denied that the principles of judicial review would apply to the exercise of
contractual powers by Government bodies in order to prevent arbitrariness or favouritism. However,
it must be clearly stated that there are inherent limitations in execises of that power of judicial
review. Government is the guardian of the finances of the State. It is expected to protect the
financial interest of the State. The right to refuse the lowest or any other tender is always available
to the Government. But, the principles laid down in Article 14 of the Constitution have to be kept in
view while accepting or refusing a tender. There can be no question of infringement of Article 14 if
the Government tries to get the best person or the best quotation. The right to choose cannot be
considered to be an arbitrary power. Of course, if the said power is exercised for any collateral
purpose the exercise of that power will be struck down.

86. Judicial quest in administrative matters has been to find the right balance between the
administrative discretion to decide matters whether contractual or political in nature or issues of
social policy; thus they are not essentially justiciable and the need to remedy any unfairness. Such
an unfairness is set right by judicial review.

87. Lord Scarman in Nottinghamshir County Council v. Secretary of State for the
Environment, 1986 AC 240 at 251 proclaimed :

'Judicial review' is a great weapon in the hands of the Judges; but the Judges must observe
the constitutional limits set by our parliamentary system upon the exercise of this beneficent
power."

88. Commenting upon the Michael Supperstone and James Goudie in their work on " Judicial Review"
(1992 Edition) at page 16 say :

"if anyone were prompted to dismiss this sage warning as a mere obiter dictum from the
most radical member of the higher judiciary of recent times, and therefore to be treated as
an idiosyncratic aberration, it has received the endorsement of the Law Lords generally. The
words of Lord Scarman were echoed by Lord Bridge of Harwich, speaking on behalf of the
Board when reversing an interventionist decision of the New Zealand Court of Appeal in
Butcher v. Petrocorp Exploration Ltd., 18 march 1991.

89. Observance of judicial restraint is currently the mood in England. The judicial power of review is
exercise to rein in any unbridled executive functioning. The restraint has two contemporary
manifestations. One is the ambit of judicial intervention; the other covers the scope of the Court's
ability to quash an administrative decision on its merits. These restraints bear the hallmarks of
judicial control over administrative action.

90. Judicial review is concerned with reviewing not the merits of the decision in support of which the
application of judicial review is made, but the decision making process itself.

91. In Chief Constable of the North Wales Police v. Evans, (1982) 3 All ER 141 at 154 Lord
Brightman said :

"Judicial review, as the words imply, is not an appeal from a decision, but review of the
manner in which the decision was made.

Judicial Review is concerned, not with the decision, but with the decision making process.
Unless that restriction on the power of the Court is observed, the Court will, in my view,
under the guise of preventing the abuse of power, be itself guilty of usurping power."

In the same case Lord Hailsham Commented on the purpose of the remedy by way of judicial review
under RSC Ord 53 in the following terms :

This remedy, vastly increased in the extent, and rendered, over a long period in recent years, of
infinitely more convenient access than that provided by the old prerogative writs and actions for a
declaration, is intended to protect the individual against the abuse of power by a wide range of
authorities judicial, quasi-judicial, and, as would originally have been thought when I first practised
at the Bar, administrative. It is not intended to take away from those authorities the powers and
discretions properly vested in them by law to substitute the Courts as the bodies making the
decisions. It is intended to see that the relevant authorities are their powers in a proper manner. (p.
1160)

R v. Panel on Take-overs and mergers, ex p Datafin plc. Sir John Donladson MR commented : 'an
application for judicial review is not an appeal'. In Lonrho plc v. Secretary of State for Trade and
Industry. Lord Keith said : 'Judicial review is a protection and not a weapon'. It is thus different from
an appeal. When hearing an appeal the Court concerned with the merits of the decision under
appeal. In Re Amin Lord Fraser observed that :

"Judicial review is concerned not with the merits of a decision but with the manner in which
the decision was made ..... Judicial review is entirely different from an ordinary appeal. It is
made effective by the Court quashing an administrative decision without substituting its own
decision, and is to be contrasted with an appeal where the appellate tribunal substitutes its
own decision on the merits for that of the administrative officer."
92. In R. v. panel on Take-overs and Mergers, ex p Guinness plc., (1990) 1 QB 146, Lord
Donaldson MR referred to the judicial review jurisdiction as being supervisory or 'longstop'
jurisdiction. Unless that restriction on the power of the Court is observed, the Court will, under the
guise of preventing the abuse of power, be itself guilty of usurping power.

93. The duty of the Court is to confine itself to the question of legality. Its concern should be;

1. whether a decision-making authority exceeded its powers ?

2. committed an error of law.

3. committed a breach of the rules of natural justice.

4. reached a decision which no reasonable Tribunals would have reached or.

5. abused its powers.

94. Therefore, it is not for the Court to determine whether a particular policy or particular decision
taken in the fulilment of that policy is fair. It is only concerned with the manner in which those
decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly
put, the grounds upon which an administrative action is subject to control by judicial review can be
classified as under :

(i) Illegality : This means the decision-maker must understand correctly the law regulates his
decision-making power and must give effect to it.

(ii) Irrationality, namely, Wednesbury unreasonableness.

(iii) Procedural impropriety.

95. The above are only the broad grounds but it does not rule out addition of further grounds in
course of time. As a matter of fact, in R. v. Secretary of State for the Home Department ex
parte Brind, (1991) 1 AC 696, Lord Diplock refers specifically to one development namely, the
possible recognition of the principle of proportionality. In all these cases the test to be adopted is
that the Court should, 'consider whether something has gone wrong of a, nature and degree which
requires its intervention.

96. What is this charming principle of Wednesbury unreasonableness ? Is it a magical formula ? In

R. v. Askew, (1786) 4 Burr 2186, Lord Mansfield considered the question whether mandamus
should be granted against the College of Physicians. He expressed the relevant principles in two
eloquent sentences. They gained greater value two centuries later :

"It is true, that the judgment and discretion of determining upon this skill, ability, learning
and sufficiency to exercise and practise this profession is trusted to the College of Physicians;
and this Court will not take it from them, nor interrupt them in the due and proper exercise of
it. But their conduct in the exercise of this trust thus committed to them ought to be fair,
candid and unprejudiced; not arbitrary, capricious, or biased, much less, warped by
resentment, or personal dislike."

97. To quote again. Michael Supperstone and James Goudie; in their work ' Judicial Review (1992
Edition) it is observed at pages 119 to 121 as under :

'The assertion of a claim to examine the reasonableness been done by a public authority
inevitably led to differences of judicial opinion as to the circumstances in which the Court
should intervene. These differences of opinion were resolved in two landmark cases which
confined the circumstances for intervention to narrow limits. In Kruse v. Johnson a specially
constituted divisional Court had to consider the validity of a bye-law made by a local
authority. In the leading judgment of Lord Russell of Killowen, C. J. the approach to be
adopted by the Court was set out. Such bye-laws ought to be 'benevolently' interpreted, and
credit ought to be given to those who have to administer them that they would be reasonably
administered. They could be held invalid if unreasonable : where for instance bye-laws were
found to be partial and unequal in their operation as between different classes, if they were
manifestly unjust, if they disclosed bad faith, or if they involved such oppressive or gratuitous
interference with the right of citizens as could find no justification in the minds of reasonable
men. Lord Russell emphasised that a bye-law is not unreasonable just because particular
judges might think it went further than was prudent or necessary or convenient."

In 1947 the Court of Appeal confirmed a similar approach for the review of executive discretion
generally in Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., (1948(1) KB
223 : 1947(2) All ER 680. This case was concerned with a complaint by the owners of a cinema in
Wednesbury that it was unreasonable of the local authority to licence performances on Sunday only
subject to a condition that 'no children under the age of 15 years shall be admitted to any
entertainment whether accompanied by an adult or not', In an extempore judgment, Lord Greene M.
R. drew attention to the fact that the word 'unreasonable' had often been used in a sense which
comprehended different grounds of review. (At page 229, where it was said that the dismissal of a
teacher for having red hair (cited by Warrington LJ in Short v. Poole Corpn, (1926) 1 Ch 66, 91,
as example of a 'Frivolous and foolish reason') was, in another sense, taking into consideration
extraneous matters, and might be so unreasonable that it could almost be described being done in
bad faith ; see also R. v. Tower Hamlets London Borough Council, ex Chetnik Development Ltd.,
(supra). He summarised the principles as follows :

"The Court is entitled to investigate the action of the local authority with a view to seeing
whether or not they have taken into account matters which they ought not to have taken into
account, or conversely, have refused to take into account or neglected to take into account
matter which they ought to take into account. Once that question is answered in favour of the
local authority, it may still be possible to say that, although the local authority had kept
within the four corners of the matters which they ought to consider, they have nevertheless
come to a conclusion so unreasonable that no reasonable authority could ever have come to
it. In such a case, again, I think the Court can interfere. The power of the Court to interfere
in each case is not as an appellate authority to override a decision of the local authority, but
as a judicial authority which is concerned, and concerned only, to see whether the local
authority has contravened the law by acting in excess of the power which Parliament has
confided in them."

This summary by Lord Greene has been applied in countless subsequent cases.

The modern statement of the principle is found in a passage in the speech of Lord Diplock in Council
of Civil Service Unions v. Minister for the Civil Service, (1985(1) AC 374) :

" By "irrationality" I mean what can now be succinctly referred to as "Wednesbury

unreasonableness" (Associated Provincial Picture Houses v. Wednesbury Corpn,
(1948) 1 KB 223 (233). It applies to a decision which is so outrageous in its defiance of
logic or of accepted moral standards that no sensible person who had applied his mind to the
question to be decided could have arrived at."

98. At this stage, the Supreme Court Practice 1993 Volume, 1 Pages 849-850, may be quoted :

"4. Wednesbury principle - A decision of a public authority will be liable to be quashed or

otherwise dealt with by an appropriate order in judicial review proceedings where the Court
concludes that the decision is such that no authority properly directing itself on the relevant
law and acting reasonably could have reached it" (Associated Provincial Picture Houses
Limited v. Wednesbury Corpn., (1948) 1 KB 223 : (1947) 2 All ER 680 per Lord
Greene M.R.)

99. Two other facets of irrationality may be mentioned.

(1) It is open to the Court to review the decision-maker's evaluation of the facts. The Court
will intervene where the facts taken as a whole could not logically warrant the conclusion of
the decision-maker. If the weight of facts pointing to one course of action is overwhelming,
then a decision the other way, cannot be upheld. Thus, in Emma Hotels Ltd. v. Secretary
of the State of Environment, (1980) 41 P and CR 255, the Secretary of State referred to
a number of factors which led him to the conclusion that a non-resident's bar in a hotel was
operated in such a way that the bar was not an incident of the hotel use for planning
purposes, but constituted a separate use. The Divisional Court analysed the factors which led
the Secretary of State to that conclusion and, having done so, set it aside. Donaldson LJ said
that he could not see on what basis the Secretary of State had reached his conclusion.

(2) A decision would be regarded as unreasonable if it is impartial and unequal in its

operation as between different classes. On this basis in R. v. Barnet London Borough
Council, ex p. Johnson, (1989) 88 LGR 73, the condition imposed by a local authority
prohibiting participation by those affiliated with political parties at events to be held in the
authority's parks was struck down.

100. Bernard Schwartz in Administrative Law Second Edition page 584 has this to say :
 If the scope of review is too broad, agencies are turned into little more than media for the
transmission of cases to the Courts. That would destroy the values of agencies created to
secure the benefit of special knowledge acquired through continuous administration in
complicated fields. At the same time, the scope of judicial inquiry must not be so restricted
that it prevents full inquiry into the question of legality. If that question cannot be properly
explored by the judge, the right to review becomes meaningless. "It makes judicial review of
administrative orders a hopeless formality for the litigant...... It reduces the judicial process
in such cases to a mere feint."

Two overriding considerations have combined to narrow the scope of review. The first is that
of deference to the administrative expert. In Chief Justice Neely's words, " I have very few
illusions about my own limitations as a Judge and from those limitations. I generalize to the
inherent limitations of all appellate Courts reviewing rate cases. It must be remembered that
this Court see approximately 1, 262 cases a year with five Judges. I am not an accountant,
electrical engineer, financier, banker, stock broker, or systems management analyst. It is the
height of folly to expect Judges intelligently to review a 5, 000 page record addressing the
intricacies of public utility operation. "It is not the function of a Judge to act as a super board,
or with the Zeal of a pedantic school master substituting its judgment for that of the
administrator.

The result is a theory of review that limits the extent to which the discretion of the expert
may be scrutinized by the non-expert Judge. The alternative is for the Court to overrule the
agency on technical matters where all the advantages of expertise lie with the agencies. If a
Court were to review fully the decision of a body such a State Board of Medical Examiners " it
would find itself wandering amid the mazes of therapeutics of boggling at the mysteries of
the pharmacopoeia." Such a situation as a State Court expressed it many years ago " is not a
case of the blind leading the blind but of one who was always been deaf and blind insisting
that he can see and hear better than one who has always had his eyesight and hearing and
has always used them to the utmost advantage in ascertaining the truth in regard to the
matter in question."

The second consideration leading to narrow review is that of calendar pressure. In practical
terms it may be the more important consideration. More than any theory of limited review it
is pressures of the judicial calendar combined with the elephantine bulk of the record in so
many review proceedings which leads to perfunctory affirmance of the vast majority of
agency decisions."

101. A modern comprehensive statement about judicial review by Lord Denning is very apposite; it
is perhaps worthwhile noting that stresses the supervisory nature of the jurisdiction :

"Parliament often entrusts the decision of matter to a specified person or body, without
providing for any appeal. It may be a judicial decision, or a quasi-judicial decision, or an
administrative decision. Sometimes Parliament says its decision is to be final. At other times
it says nothing about it. In all these cases the Courts will not themselves take the place of the
body of whom Parliament has entrusted the decision. The Courts will not themselves embark
on a rehearing of the matter : See Healey v. Minister of Health, (1995) 1 QB 221, But
nevertheless, the Courts will, if called upon, act in a supervisory capacity. They will see that
the decision making body acts fairly : See in Re H.K. (an Infant), (1967) 2 QB 617, at
630 and Reg. v. Gaming Board for Great Britain, ex parte Benaim and Khaida, (1970)
2 QB 417. The Courts will ensure that the body acts in accordance with the law. If a question
arises on the interpretation of words, the Courts will decide it by declaring what is the correct
interpretation : see Punton v. Minister of pensions and National Insurance, (1963) 1
WLR 186. And if the decision-making body has gone wrong in its interpretation they can set
its order aside : See Ashbridge Investments Ltd. v. Minister of Housing and Local
Government, (1965) 1 WLR 1320. (I know of some expressions to the contrary but they
are not correct). If the decision-making body is influenced by consideration which ought not
influence it; or fails to take into account matters which it ought to take into account, the
Court will interfere : see, Padfield v. Minister of Agriculture, Fisheries and Food, 1968
AC 997. If the decision-making body comes to its decision on no evidence or comes to an
unreasonable finding - so unreasonable that a reasonable person would not have come to it -
then again the Court will interfere; See Associated Provincial Picture Houses Ltd. v.
Wednesbury Corpn., (1948) 1 KB 223. If the decision-making body goes outside its
powers or misconstrues the extent of its powers, then too, the Courts can interfere : see
Anisminic Ltd. v. Foreign Compensation Commission, (1969) 2 AC 147. And, of
course, if the body acts in bad faith or for an ulterior object, which is not authorised by law,
its decision will be set aside : see Sydney Municipal Council v. Campbell, 1925 Ac 338.
 In exercising these powers, the Courts will take into account any reasons which the body may
give for its decisions. If gives no reasons - in a case when it may reasonably be expected to
do so, the Courts may infer that it has no good reason for reaching its conclusion, and act
accordingly : see Padfield's case, (1968 AC 997, 1007 and 1061)."

102. We may usefully refer to Administrative Law Rethinking Judicial Control of Bureaucracy by
Christopher F. Edley, JR. (1990 Edn). At page 96 it is stated thus :

"A great deal of Administrative law boils down to the scope of review problem; defining what
degree of deference a Court will accord an agency's findings, conclusions, and choices,
including choice of procedures. It is misleading to speak of a "doctrine" or "the law", of scope
of review. It is instead just a big problem, that is addressed piecemeal by a large collection of
doctrines. Kenneth Culp Davis has offered a condensed summary of the subject : "Courts
usually substitute (their own) judgment on the kind of law that are within their special
competence, but on other question they limit themselves to deciding reasonableness; they do
not clarify the meaning of reasonableness but retain full discretion in each case to stretch it in
either direction."

103. In Universal Camera Corpn. v. NLRB, ((1950) 340 US 474 at 488-89) Justice Frankfurter
stated :

"A formula for judicial review of administrative action may afford grounds for certitude but
cannot assure certainty of application. Some scope for judicial discretion in applying the
formula can be avoided only by falsifying the actual process of judging or by using the
formula as an instrument of futile casuistry. It cannot be too often repeated that Judges are
not automata. The ultimate reliance for the fair operation of any standard is a judiciary of
high competence and character and the constant play of an informed professional a critique
upon its work. Since the precise way in which Courts interfere with agency findings cannot be
imprisoned within any form of words, new formulas attempting to rephrase the old are not
likely to be more helpful than the old. There are no talismanic words that can avoid the
process of judgment. The difficultly is that we cannot escape, in relation to this problem, the
use of undefined defining terms."

104. An innovative approach is made by Clive Lewis as to why the courts should be slow in quashing
administrative (in his Judicial Remedies in Public Law 1992 Edition at pages 294-95). The
illuminating passage reads as under :

"The courts now recognise that the impact on the administration is relevant in the exercise of
their remedial jurisdiction. Quashing decisions may impose heavy administrative burdens on
the administration, divert resources towards re-opening decisions, and lead to increased and
unbudgeted expenditure. Earlier cases took the robust line that the law had to be observed,
and the decision invalidated whatever the administrative inconvenience caused. The courts
nowadays recognise that such an approach is not always appropriate and may not be in the
wider public interest. The effect on the administrative process is relevant to the courts'
remedial discretion and may prove decisive. This is particularly the case when the challenge
is procedural rather than substantive, or if the courts can be certain that the administrator
would not reach a different decision even if the original decisions were quashed. Judges may
differ in the importance they attach to the disruption that the quashing a decision will cause.
They may also be influenced by the extent to which the illegality arises from the conduct of
the administrative body itself, and their view of that conduct.

The current approach is best amplified by R. v. Monopolies and Mergers Commission, ex.
p. Argyll Group, (1986) 1 WLR 763."

105. Sir John Donaldson M.R. in R. v. Monopolies Commission, ex p Argyll Plc. (C.A.), (1986)
1 WLR 763 at 774 observed thus :

"We are sitting as a public law court concerned to review an administrative decision, albeit
one which has to be reached by the application of judicial or quasi-judicial principles. We
have to approach our duties with a proper awareness of the needs of public administration. I
cannot catalogue them all, but, in the present context, would draw attention to a few which
are relevant.

Good public administration is concerned with substance rather than form.

.......Good public administration is concerned with speed of decision, particular in the final
field.
 .......Good public administration requires a proper consideration of the public interest. In this
context, the Secretary of State is the guardian of the public interest.

........ Good public administration requires a proper consideration of the legitimate interests
of individual citizens, however rich and powerful they may be and whether they are natural or
juridical persons. But in Judging the relevance of an interest, however legitimate, regard has
to be had to the purpose of the administrative process concerned.

........ Lastly, good public administration requires decisiveness and finality, unless there dare
compelling reasons to the contrary."

106. We may now look at some of the pronouncements of this Court including the authorities cited
by Mr. Ashok Sen.

107. Fasih Chaudhary v. Director General, Doordarshan, (1989) 1 SCC 89) was a case in
which the Court was concerned with the award of a contract for show of sponsored TV serial. At page
92 (of SCC) in paragraphs 5 and 6 it was held thus :

"It is well settled that there should be fair play in action in a situation like the present one, as
was observed by this Court in Ram and Shyam Co. v. State of Haryana, (1985) 3 SCC
267, 268-69. It is also well settled that the authorities like the Doordarshan should act fairly
and their action should be legitimate and fair and transaction should be without any aversion,
malice or affection. Nothing should be done which gives the impression of favouritism or
nepotism. See the observations of this court in Haji T.M. Hassan Rawther v. Kerala
Financial Corpn., (1988) 1 SCC 166, 173, para 14.

While, as mentioned hereinbefore, fair play in action in matters like the present one is an
essential requirement, similarly, however, 'free play in the joints' is also a necessary
concomitant for an administrative body functioning in an administrative sphere or quasi-
administrative sphere as the present one. Judged from that stand-point of view, though all
the proposals might not have been considered strictly in accordance with order of
precedence, it appears that these were considered fairly, reasonably, objectively and without
any malice or ill-will."

108. In G.B. Mahajan v. Jalgaon Municipal Council, (1991) 3 SCC 91) the concept of
reasonableness in administrative law came to be dealt with elaborately by one of us, Venkatachaliah,
J. (as he then was). In paragraphs 37 to 46 (of SCC) : (para 19 of AIR) the Court observed thus :

"It was urged that the basic concept of the manner of the development of the real estate and
disposal of occupancy rights were vitiated by unreasonableness. It is a truism, doctrinally,
that powers must be exercised reasonably. But as Prof. Wade points out :

"The doctrine that powers must be exercised reasonably has to be reconciled with the no less
important doctrine that the court must not usurp the discretion of the public authority which
Parliament appointed to take the decision. Within the bounds of legal reasonabless is the area
in which the deciding authority has genuinely free discretion. If it passes those bounds, it acts
ultra vires. The court must therefore resist the temptation to draw the bounds too tightly,
merely according to its own opinion. It must strive to apply an objective standard which
leaves to the deciding authority the full range of choices which the legislature is presumed to
have intended. Decisions which are extravagant or capricious cannot be legitimate. But if the
decision is within the confines of reasonableness, it is no part of the court's function to look
further into its merits, 'With the question whether a particular policy is wise or foolish the
court is not concerned; it can only interfere if to pursue it is beyond the powers of the
authority'....."

In the arguments there is some general misapprehension of the scope of the "reasonableness" test
in administrative law. By whose standards of reasonableness that a matter is to be decided ? Some
phrases which pass from one branch of law to another - as did the expressions 'void' and 'voidable'
from private law areas to public law situations - carry over with them meanings that may be
inapposite in the changed context. Some such thing has happened to the word "reasonable',
"reasonableness" etc. In Tiller v. Atlantic Coast Line Rail Road Company, (1942 (318) US 54,
68), Justice Frankfurter said :

"A pharase begins life as a literary expression; its felicity leads to its lazy repetition; and
repetition soon establishes it as a legal formula, undiscriminatingly used to express different
and sometimes contradictory ideas."
Different contexts in which the operation of "reasonableness" as test of validity operates must be
kept distinguished. For instance as the arguments in the present case invoke, the administrative law
test of 'reasonableness; as the touchstone of validity of the impugned resolutions is different from
the test of the 'reasonable man' familiar to the law of torts, whom English law figuratively identifies
as the "man on the Clapham omnibus". In the latter case the standards of the 'reasonable man', to
the extent such a 'reasonable man' is court's creation, is in a manner of saying, a mere transferred
epithel. Lord Radcliffe observed (All ER p. 160) :

"By this time, it might seen that the parties themselves have become so far disembodied
spirits that their actual persons should be allowed to rest in peace. In their place there rises
the figure of the fair and reasonable man and the dot spokesman of the fair and reasonable
man, who represents after all no more than the anthropomorphic conception of justice, is and
must be, the court itself........"

See Davis Contractors Ltd. v. Fareham U.D.C., (1956) 2 All ER 145, 160.

Yet another area of reasonableness which must be distinguished is the constitutional standards of
'reasonableness' of the restrictions on the fundamental rights of which the court of judicial review is
the arbiter.

The administrative law test of reasonableness is not by the standards of the "reasonable man" of the
torts law. Prof. Wade says :

"This is not therefore the standard of 'the man on the Clapham omnibus'. It is the standard
indicated by a true construction of the Act which distinguishes between what the statutory
authority may or may not be authorised to do. It distinguishes between proper use and
improper abuse of power. It is often expressed by saying the decision is unlawful if it is one
to which no reasonable authority could have come. This is the essence of what is now
commonly called 'Wednesbury unreasonableness', after the new famous case in which Lord
Greene, M. R. expounded it".

109. Referring to the doctrine of unreasonableness, Prof. Wade says in Administrative Law (supra) :

"The point to note is that a thing is not unreasonable in the legal sense merely because the
court thinks it is unwise."

110. In F.C.I. v. Kamdhenu Cattle Feed Industries, (1993) I SCC 71 at 76, it was observed
thus :

"In contractual sphere as in all other State actions, the State and all its instrumentalities have
to conform to article 14 of the Constitution of which non-arbitrariness is a significant facet.
There is no unfettered discretion in public law : A public authority possesses powers only to
use them for public good. This imposes the duty to act fairly and to adopt a procedure which
is 'fairplay in action'."

111. In Sterling Computers Limited v. M/s. M. and N. Publications Limited, (1993) 1 SCC
445 at page 455, this Court observed thus :

"......... In contracts having commercial element, some more discretion has to be conceded to
the authorities so that they may enter into contracts with persons, keeping an eye on the
augmentation of the revenue. But even in such matters they have to follow the norms
recognised by courts while dealing with public property. It is not possible for courts to
question and adjudicate every decision taken by an authority, because many of the
Government undertakings which in due course have acquired the monopolist position in
matters of sale and purchase of products and with so many ventures in hand, they can come
out with a plea that it is not always possible to act like a quasi-judicial authority while
awarding contracts. Under some special circumstances a discretion has to be conceded to the
authorities who have to enter into contract giving them liberty to assess the overall situation
for purpose of taking a decision as to whom the contract be awarded and at what terms. If
the decisions have been taken in 'bona fide' manner although not strictly following the norms
laid down by the courts, such decisions are upheld on the principle laid down by Justice
Holmes, that courts while judging the constitutional validity of executive decisions must grant
certain measure of freedom of "play in the joints" to the executive."

112. In Union of India v. Hindustan Development Corporation, (1993) 3 SCC 499 at 515,
this Court held thus :
 "....... the Government had the right to eigther accept or reject the lowest offer but that of
course, if done on a policy, should be on some rational and reasonable grounds. In Erusian
Equipment and Chemicals Ltd. v. State of W.B., AIR 1975 SC 266), this Court observed
as under (para 17) :

"When the Government is trading with the public, 'the democratic form of Government
demands equality and absence of arbitrariness and discrimination in such transactions'. The
activities of the Government that a public element and, therefore, there should be fairness
and equality. The State need not enter into any contract with anyone, but if it does so, it
must do so fairly without discrimination and without unfair procedure."

113. The principles deducible from the above are :

(1) The modern trend points to judicial restraint in administrative action.

(2) The Court does not sit as a court of appeal but merely reviews the manner in which the
decision was made.

(3) The Court does not have the expertise to correct the administrative decision. If a review
of the administrative decision is permitted it will be substituting its own decision, without the
necessary expertise which itself may be fallible.

(4) The terms of the invitation to tender cannot be open to judicial scrutiny because the
invitation to tender is in the realm of contract. Normally speaking, the decision to accept the
tender or award the construct is reached by process of negotiations through several tiers.
More often than not, such decisions are made qualitatively by experts.

(5) The Government must have freedom of contract. In other words, a fairplay in the joints is
a necessary concomitant for an administrative body functioning in an administrative sphere
or quasi administrative sphere. However, the decision must not only be tested by the
application of Wednesbury principle of reasonableness (including its other facts pointed out
above) but must be free from arbitrariness not affected by bias or actuated by mala fides.

(6) Quashing decisions may impose heavy administrative burden on the administration and
lead to increased and unbudgeted expenditure.

114. Based on these principles we will examine the facts of this case since they commend to us as
the correct principles.

Point No. 2 : Whether the selection is vitiated by arbitrariness ?

115. Mr. Soli J. Sorabjee, learned counsel appearing for Tata Cellular argued that there are clear
instances of arbitrariness.

116. Criterion No. 2. 4. 7 has been totally ignored and excluded. This has been so admitted. No
marks have been awarded on this score under this criterion.

117. Note 11 of the same General Conditions 2. 4. 7 says minimum reliance on Indian public
financial institutions will be preferred. This requirement has been breached by Bharti Cellular, Mobile
Telecom, Sterling Cellular and Skycell Communication. They have borrowed from commercial banks
4.87 per cent, 4.87 per cent 43. 48 percent and 34.41 percent respectively. This criterion carries 8
marks. In spite of the borrowing they have been awarded 6, 8 (full marks), 5 and 7 respectively.
The company, Tata Cellular, which had not borrowed at all from the commercial banks, has been
awarded only 4 marks. It requires to be noted that borrowing from commercial banks was prohibited
by Reserve Bank of India.

118. Then again, one of the prescribed criterion is 2. 4. 6 which carries 12 marks, namely, the
financial strength of the partner company. The annual turnover from Tata Cellular, from Indian
parameters was 12, 000 crones and annual turnover of their foreign parameters was 51, 000 crores
yet what has been awarded is only 9 marks. As against this Huchitson Max has only an annual
turnover of 75 crores and rupees 6, 600 crores of foreign parameters yet it has been awarded 12
marks. Equally, Sterling Cellular whose turnover according to its bid document was 77 crores; the
foreign parameter is unknown, it has also been awarded 9 marks.

119. The cut-off date for financial bid document was fixed as 17-8-92. To examine and evaluate the
same committee was set up. The committee adopted some parameters and devised a marking
system. It is as under :

Total Marks
Parameter
Rental 50

Project Financing 8

Foreign Exchange inflow/outflow 10

Purchase plan for Cellular equipment within the country including tie-ups with the proposed Indian manufactures 5

Experience 15

Financial strength 12

Note :- No marks were allotted for the seventh criterion of financial projections of Cellular Mobile
Service.

120. The report of the Tender Evaluation Committee on this aspect states as under :

"One of the parameters is about the financial projection. The Committee discussed about the
reliability of financial projections made by the bidders and came to the conclusion that it is
not possible for them to verify the reliability of the projections which are based on individual
postulations about the number of subscribers, traffic, tariff, financial structure etc. For this
purpose we have to go by the data furnished by the bidders at its face value. In any case the
financial data, having relevance to evaluation of the tender have well been covered under
various parameters."

121. Annexure 1 to the Report of the said Committee shows the manner the parameters and their
weightage were given to each criterion. The debt/equity ratio is 1 : 5 for city of Bombay. It has been
rightly assigned 3 marks.

122. The bid pro forma of Bharti Cellular, Mobile Telecom, Sterling Cellular and Skycell indicates
minimum reliance on financial institutions. It has also made distinction between loans from public
financial institutions and banks. Therefore, there is a confusion on the part of Tata Cellualr about this
requirement with loans from the banks.

123. Records reveal that in the case of India Telecom while awarding marks care was taken to
exclude the open market projects and foreign exchange from the evaluation process.

124. As regards Skycell they had projected their operation in Madras for initial years which would be
below profitable levels. Therefore, no dividend would have been paid to their foreign collaborators
participating in the equity of company. The foreign exchange inflow position in their case was
considered to be better. The markings came to be awarded on the same basis as in the case of all
the bidders. The foregin collaborators of Skycell, B.P.L. Systems and Projects, Usha Martin, Bharti
Cellular and Tata Cellular specifically undertook to cover the foreign exchange funding by equity and
loans. International roaming has been correctly taken into consideration. As submitted by the
learned Solicitor General roaming is defined in paragraph 1.3.1.2 of N.I.T. as follows :

"Roaming : This feature shall enable a subscriber to communicate in a cellular system other
than its home registered one."

125. Paragraph 1.3.1.18 talks of home location registered.

126. Paragraph 1.3.1.19 deals with Visitor Location Register (VLR) which says as follows :

"Visitor Location Register (VLR) : VLR shall be able to store the following information. Their
functions shall also include data retrieval, data collection, update of data entry, once PLMNs
are established.

- the IMSI.

- the Mobile Station International ISDN number.

- the Mobile Station Roaming number, of allocated at location updating.

- the temporary Mobile Station Identity, if applicable.

- the location area where the mobile station has been registered.

- Supplementary service parameters.

- any other information needed for management of mobile station."

127. All these paragraphs will clearly establish that the system provides for facility of roaming to
visitors. International roaming in G. S. M. is well accepted technique.

128. GSM is defined as a Global System for Mobile communications. The GSM specifications are
highly standrdized. This means that the systems that are designed as per GSM specifications will be
compatible with each other and, therefore, can be easily connected together from day one.

129. Roaming in GSM cellular mobile systems means that a subscriber belonging to one operator can
use his telephone to receive and make calls while he is in the area of another operator automatically.
When a subscriber goes into the area of another operator, who has a roaming agreement with his
another ooperator, the details of the subscriber available in the HLR (Home Location Register) of the
home MSC (Mobile Switching Centre) are obtained by the visitor MSC and placed in the VLR (Visitor
Location Register). The subscriber can originate and receive calls without feeling any difference. The
roaming can be easily extended internationally and is already being done in parts of Europe. Since
the systems are compatible, all that is required is an agreement between the operators for revenue
sharing etc.

130. Thus, we find the agrument that paragraphs 2.4.7, namely, the financial projection of the
proposed Cellular Mobile Cellular and the 7th criterion having been left out of consideration cannot
be accepted.

Point No. 3 : Bias of Mr. Nair -

Whether affects the selection ?

131. In Black's Law Dicitonary Sixth Edition at page 162 bias is defined as under :

"Inclination; bent"; prepossession; a preconceived opinion; a predisposition to decide a cause

or an issue in a certain way, which does not leave the mind perfectly open conviction. To
incline to one side. Condition of mind, which sways judgment and renders Judge unable to
exercise his functions impartially in particular case. As used in law regarding disqualification
of Judge, refers to mental attitude or disposition of the Judge toward a party to the litigation,
and not to any views that he may entertain regarding the subject-matter involved. State ex
rel. Mitchell v. Sage Stores Co., 157 Kan. 622, 143 p. 2d 652, 655.

132. The rule of bias is founded on the well-known maxim nemo judex non causa sua : no person
can be a Judge in his own cause.

133. De Smith's Constitutional and Administrative Law New Edition at page 583 states as follows :

"First, an adjudicator must not have any direct financial or proprietary interest in the
outcome of the proceedings. Secondly, he must not be reasonably suspected, or show a real
likelihood of bias."

134. In the instant case, the first aspect of the matter does not arise. As regards the second, the law
is as stated by De Smith's Constitutional and Administrative Law New Edition at pages 584-85 :

"If an adjudicator is likely to be biased he is also disqnalified from acting. Likelihood of bias
may arise from a number of causes; membership of an organisation or authority that is a
party to the proceedings; partisanship expressed in extra-judicial pronouncements; the fact
of appearing as a witness for a party to the proceedings; personal animosity or friendship
towards a party; family relationship with a party; professional or commercial relationships
with a party; and so on. The categories of situations potentially giving rise to a likelihood of
bias are not closed."

".... How should the test of disqualification for likelihood of bias be formulated ? ..... A more
common formulation of the test is : Would a member of the public, looking at the situation as
a whole, reasonably suspect that a member of the adjudicating body would be biased ?
Another common formulation is : Is there in fact a real likelihood of bias ? There is no need,
on either formulation, to prove actual bias; indeed, the Courts may refuse to entertain
submissions designed to establish the actual bias of a memeber of an independent tribunal,
on the ground that such an inquiry would be unseemly. In practice the test of 'reasonable
suspicion' an 'real likelihood' of bias will grnerally lead to the same result. Seldom indeed will
one find a situation in which reasonable persons adequately apprised of the facts will
reasonably suspect bias but a Court reviewing the facts will hold that there was no real
likelihood of bias. Neither formulation is concerned wholly with appearances or wholly with
objective reality. In ninetynine cases out of a hundred it is enough for the Court to ask itself
 whether a reasonable person viewing the facts would think that there was a subtantial
possiblity of bias."

135. Geoffrey A Flick in his work on Natural Justice (Principles and Practical Application) 1979 Edition
at 118-120 states :

"PERSONAL INVOLVEMENT

Whenever a decision maker becomes personaly involved with one of the parties there arises
the suspicion that a determination may not be reached exclusively on the merits of the case
as discussed at the hearing. Unlike allegations of bias by reason of the pecuniary interest of
the decision maker, however, allegations of bias founded upon a personal involvement will
only result in disqualification where there is a real likelihood that a hearing will not be fair :
de Smith at 232-37; David @ 12.02.

The most obvious group of cases calling for scrutiny are those in which one of the parties has
close ties of kinship with the decision maker. A chairman of county commissioners, therefore,
cannot not hear a petition to build a new road which was intended to pass over land
belonging to his brother-in-law; nor can a memebr of a zoning commission determine his
wife's application for a change in zoning from residential to business : Low v. Town of
Madison, 60 A 2d 774 (Conn 1948). In the last cited case the Court was concerned with
both the family sentiment that was present and with the opportunity for the wife to have
what in reality a private hearing before the board with her husband acting as advocate : see
778. But not all family relationships will disqualify and by, way of contrast, on the
circumstances of one particular case it was said that a board of adjustment could decide an
application by a company for permission to develop a free parking area despite the fact that
an employee of the commpany was the wife of one board member and the fact that a third or
fourth counsin of another board member was the president of the company : Moody v. City
of University Park, 278 SW 2d 912 (Ct Civ App Tex 1955).

..................... .........................

Disqualification on the basis of personal involvement is not, of course, limited to the above
two situations but may result whenever there is a sufficient nexus between the decision
maker and a party to justify the appearance that this nexus may influence the decision
reached : of R. v. Altrincham Justices, Ex parte Pennington, (1975) QB 549. Street
C.J. has stated the law in this respect in yet another New South Wales decision : Ex parte
Burnett, Re Wurth, (1955) 72 WN (NSW) 457. The last cited case involved a former officer of
the Department of Education who later sat as a member of the Public Service Board inquiring
into alleged false and scandalous allegations made by a teacher against various persons,
including the officer in question, and during the course of his judgment Street C. J.
observed :

Where bias arises not from (pecuniary) interest, the officer must have so conducted himself
that a high probability arises of a bias inconsistent with the fair performance of his duties,
with the result that a substantial distrust of the result must exist in the minds of reasonable
persons.

Put in other words, the issue is not merely whether justice has in fact been done, but whether
it has manifestly and undoubtedly been seen to be done. It may, therefore, be improper for
the clerk of the Court to act as a solicitor for a party. Similarly, it may be unwise for a
headmaster to sit in judgment upon a case involving a former pupil who had been adversely
criticised in a detailed staff report signed by the headmaster some three months previously
even where the existence of the report has been forgotten : R. v. Abingdon Justices, Ex
parte Cousins, (1964) 108 Sol J 840."

136. The leading cases on bias may now be seen.

137. In R. v. Camborne Justices, Ex parte Pearce, (1954) 2 All ER 850 at 855 it was held :

"In R. v. Essex. JJ. Ex p. Perkine (9) Avory, J., said (1927) 2 KB 475 (488) :

"We have here to determine, however, or not there might appear to be a reasonable
likelihood of his being biased."

And Swift, J., said (ibid, 490) :

 "It is essential that justice should be so administered as to satisfy reasonable persons that
the tribunal is impartial and unbiased. As Lord Hewart, C. J., Said in R. v. Sussex JJ. Ex p.
McCarthy (6) (1924) 1 KB 256 (259) : 'Nothing is to be done which creates even a
suspicion that there has been an improper interference with the course of Justice.' Might a
reasonable man suppose that there had here been such an interference with the course of
justice ?"

In R. v. Salford Assessment Committee, Ex p. Orden (10), Slesser, L. J. (1937) 2 All ER 98

(103) and Luxmoore, J. (ibid, 108) applied the "reasonable liklihood" test, while Greene, LJ (ibid,
107) dissented only on the inference to be drawn from the facts. In Cottle v. Cottle (11) Sir Boyd
Merriman, P. (1939) 2 All ER 535 (541) asked himself the question whether the party
complaining :

"...... might reasonably have formed the impression that Mr. Brownig (the chairman of the
bench) could not give this case in unbiased hearing."

Bucknill, J., said (ibid) :

"The test which we have to apply is whether or not a reasonable man, in all the
circumstances, might suppose that there was an improper interference with the course of
justice....."

In the judgment of this Court the right test is that prescribed by Blackburn, J. (1866) LR 1 QB 230
(233) in R. v. Rand (1), namely that to disqualify a person from acting in a judicial or quasi-judicial
capacity on the ground of interest (other than pecuniary or proprietary) in the subject-matter of the
proceeding a real likelihood of bias must be shown. This Court is, further, of opinion that a real
likelihood of bias must be made to appear not only from the materials in fact ascertained by the
party complaining, but from such further facts as he might readily have ascertained and easily
verified in the course of his inquiries. In the present case, for example, the facts relied on in the
applicant's statement under R.S.C Ord. 59, R.3(2), of the grounds of his application might create a
more sinister impression than the full facts as found by this Court, all or most of which would have
been available to the applicant had he pursued his inquiries on learning that Mr. Thomas was a
member of the Cornwall County Council and none of these further facts was disputed at the hearing
of this motion. The frequency with which allegations of bias have come before the Courts in recent
times seems to indicate that the reminder of Lord Hewart, C. J., in R. v Sussex JJ. Ex. P. McCarthy
(6) (1924) 1 KB 256 (259) that it is.

"of fundamental importance that justice should not only be done, but should manifestly and
undoubtedly be seen to be done."

In Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon, (1968) 3 All ER 304 at 310, it was
held thus :

"...in considering whether there was a real llikelihood of bias, the Court does not look at the
mind of Justice himself or at the mind of the chairman of the tribunal, or whoever it may be,
who sits in a judicial capacity. It does not look to see if there was a real likelihood that the he
would, or did, in fact favour one side at the expense of the other. The Court looks at the
impression which would be given to other people, Even if he was an impartial as could be,
nevertheless, if right-minded persons would think that, in the circumstances, there was a real
likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot
stand : See R. v. Huggins ((1985-99 All ER Rep 914 : 1895 (1) QB 563) (8); R. v.
Sunderland Justices (1901 (2) KB 357 at P. 373) (9), per Vaughan Willams, L.J.
Nevertheless, there must appear to be a real likelihood of bias. Surmise or conjecture is not
enough : see R. v. Camborne Justices, Ex p. Pearce, (1954 (2) All ER 850) (10); R. v.
Nail Sworth Justices, Exp. Bird (1953(2) All ER 652) (11). There must be
circumstances from which a reasonable man would think it likely or probable that the Justice,
or chairman, as the case may be, would, or did, favour one side unfairly at the expense of
the other. The Court will not equire whether he did, in fact, favour one side unfairly. Suffice it
that reasonable people might think he did. The reason is plain enough. Justice must be
rooted in confidence; and confidence is destroyed when right-minded people go away
thinking" : "The Judge was biased."

139. In R. v. Liverpool City Justices, exparte Topping, (1983) 1 All ER 490 at 494 it was
observed :

"In the past there has also been a conflict of view as to the way in which that test should be
applied. Must there appear to be a real likelihood of bias ? Or is it enough if there appears to
be a reasonable suspicion of bias ? (For a discussion on the cases, see de Smith's Judicial
 Review of Administrative Action (4th edn. 1980) pp. 262-264 and HWR Wade, Administrative
Law (5th edn. 1982) pp. 430-432). We accept the view of Cross LJ, expressed in Hannam v.
Bradford City Council, (1970) 2 All ER 690 at 700 : (1970) 1 WLR 937 at 949, that
there is really little, if any difference between the two tests :

'If a reasonable person who has no knowledge of the matter beyond knowledge of the
relationshiip which subsists between some members of the tribunal and one of the parties
would think that there might well be bias, then there is in his opinion a real likelihood of bias.
Of course, someone else with inside knowledge of the character of the members in question
might say. " Although things don't look very well, in fact there is no real likelihood of bias."
But that would be beside the point, because the question is not whether the tribunal will in
face be biased, but whether a reasonable man with no inside knowledge might well think that
it might be biased.'

We conclude that the test to be applied can convenienty be expressed by slightly adapting in
words of Lord Widgery C. J. in a test which he laid down in R. v. Uxbridge Justices, ex p
Burbridge, (1972) Times, 21 June and referred to by him in R. v. McLean, exp Aikens,
((1974) 139 JP 261 at 266 : would a reasonable and fair-minded person sitting in Court
and knowing all the relevant facts have a reasonable suspicion that a fair trial for the
applicant was not possible ?"

140. In University College of Swansea v. Cornelius, 1988 ICR 735 at 739 holds :

"Cases of bias and ostensible bias had to be regarded in the light of thcir own circumstances.
The circumstances of this case could have no relevance to other cases."

141. The Indian Law can be gathered from the following rulings :

142. In Manak Lal v. Dr. Prem Chand, 1957 SCR 575 at 581 it was held thus :

"But where pecuinary interest is not attributed but instead a bias is suggested, it often
becomes necessary to consider whether there is a reasonable ground for assuming the
possibility of a bias and whether it is likely to produce in the minds of the litigant or the public
at large a reasonable doubt about the fairness of the administration of justice. It would
always be a question of fact to be decided in each case. "The principle, " says Halsbury, nemo
debet esse judex in causa propria sua precludes a Justice, who is interested in the subject-
matter of a dispute, from acting as Justice thereon." In our opinion, there is and can be no
doubt about the validity of this principle and we are prepared to assume that this principle
applies not only to the Justices as mentioned by Halsbury but to all tribunals and bodies
which are given jurisdication to determine judicially the rights of parties."

143. In J. Mohapatra and Co. v. State of Orissa, (1985) 1 SCR 322 at 334 it was observed
thus;

"It is no answer to say that an author member is only one of the members of the Assessment
Sub-Committee and that the ultimate decision rests with the State Government which may
reject any book out of the list of approved books. A similar agrument was rejected by this
Court in Krapiak's case. The State Government would normaly be guided by the list approved
by the Assessment Sub-Committee. Further, to say that such author-member is only one of
the members of the Assessment Sub-Committee is to overlook the fact that the author-
member can subtly influence the minds of the other members against selecting books by
other authors in preference to his own. It can also be that books by some of the other
members may also have been submitted for selection and there can be between them in quid
pro quo or, in other words, you see that my book is selected and in return I will do the same
for you. In either case when a book of an author-member comes up for consideration, the
other members would feel themselves embarrassed in frankly discussing its merits. Such
author member may also be a person holding a high official position whom the other member
may not want to displease. It can be that the other members may not be influenced by the
fact that the book which they are considering for approval was written by one of their
members. Whether they were so influenced or not is, however, a matter impossible to
determine. It is not, therefore, the actual bias in favour of the author members that is
material but the possibility of such bias. All these considerations require that an author-
member should not be a member of any such committee or sub-committee."

144. In Ashok Kumar Yadav v. State of Haryana, (1985) 4 SCC 417 at 441 this Court
emphasised the reasonable likelihood of bias thus :
 "This Court emphasised that it was not necessary to establish bias but it was sufficient to
invalidate the selection process if it could be shown that there was reasonable likelihood of
bias. The likelihood of bias may arise on account of proprietary interest or on account of
personal reasons, such as, hostility to one party or personal friendship or family relationship
with the other. Where reasonable likelihood of bias is alleged on the ground of relationship,
the question would always be as to how close is the degree of relationhsip so great as to give
rise to reasonable apprehension of bias on the part of the authority making the selection."

145. In Ranjit Thakur v. Union of India, (1988) 1 SCR 512 at 520 the law was stated by one of
us, Venkatachaliah, J. (as he then was) as under : -

"As to the tests of the likelihood of bias what is relevant is the reasonableness of the
apprehension in that regard in the mind of the party. The proper approach for the Judge is
not to look at his own mind and ask himself, however, honestly. "Am I biased ?" but to look
at the mind of the party before him."

146. Reference was made therein to a dictum laid down by Justice Frankfurter in Public Utilities
Commission of the District of Columbia v. Pollak, (1961) 343 US 451 at 466 which is
reproduced as under :

"The judicial process demands that a Judge move within the framework of relevant legal rules
and the Court covenanted modes of thought for ascertaining them. He must think
dispassionately and submerge private feeling on every aspect of a case. There is a good deal
of shallow talk that the judicial robe does not change the man within it. It does. The fact is
that on the whole Judges do lay aside private views in discharging their judicial functions.
This is achieved through training, professional habits, self-discipline and that fortunate
alchemy by which men are loyal to the obligation with which they are interested. But it is also
true that reason cannot control the subconscious influence of feelings of which it is unaware.
When there is gound for believing that such unconscious feelings may operate in the ultimate
judgment or may not unfairly lead others to believe they are operating, Judges rescue
themselves. They do not sit in judgment..."

147. In International Airports Authority of India, K. D. Bali, (1988) 2 SCC 360 at 367 this Court
observed thus :

"Several points were taken in support of the application for revocation. It was sought to be
urged that the petitioner had lost confidence in the sole arbitrator and was apprehensive that
the arbitrator was biased against the petitoner. It is necessary to reiterate before proceeding
further what are the parameters by which an appointed arbitrator on the application of a
party can be removed. It is well settled that there must be purity in the administration of
quasi-Justice as are involved in the adjudicatory process before the abritrators. It is well said
that once the arbitrator enters in an arbitration, the arbitrator must not be guilty of any act
which can possibly be construed as indicative of partiality or unfairness. It is not a question of
the effect which misconduct on his part had in fact upon the result of the proceeding, but of
what effect it might possibly have produced. It is not enough to show that, even if there was
misconduct on his part, the award was unaffected by it, and was really just; arbitrator must
not do anything which is not in itself fair and impartial. See Rulssel on Arbitration, 18th
Edition, Page 378 and observations of Justice Boyd in Re Brien and Brien ((1910 (2) IR
84 at P. 89). Lord O'Brien in King (DeVesci) v. Justices of Queen's County (1908(2)
IR 285) observed as follows :

By bias I understand a real likelihood of an operative prejudice, whether conscious or

unconscious. There must in my opinion be reasonable evidence to satisfy us that there was a
real likelihood of bias. I do not think that their vague suspicions of whimsical, capricious and
unreasonable people should be made a standard to regulate our action here. It might be a
different matter of suspicion rested on reasonable grounds - was reasonably generated - but
certainly mere flimsy, elusive, morbid suspicions should not be permitted to form a ground of
decision.

(Emphasis supplied)"

148. In Union Carbide Corporation v. Union of India, (1991) 4 SCC 584 at 667 this Court
observed thus :

"But the effects and consequences of non-compliance may alter with situational variations
and particularities, illustrating a 'flexible use of discretionary remedies to meet novel legal
 situations." "One motive" says Prof. Wade "for holding administrative acts to be voidable
where according to principle they are void may be a desire to extend the discretionary powers
of the Court." As observed by Lord Reid in Wiseman v. Borneman (1971 AC 297), natural
justice should degenerate into a set of hard and fast rules. There should be a circumstantial
flexibility."

149. In the light of this let us find out whether bias has been established ?

150. The Report of the Tender Evaluation Committee was made on 16-5-92. In that Committee Mr.
B. R. Nair was a party. As seen above, the offer of the four companies did not fully satisfy the
criteria.Their cases were recommended to be considered for condonation. The four companies are :

1. BPL Systems and Projects.

2. Mobile Communication India Private Limited.

3. Mobile Telecom Services Limited and

4. Indian Telecom Private Limited.

151. Mr. B.R. Nair, member (Production) made the following note :

"I agree with the recommendations of the Evaluation Committee that the four firms must be
in paragraph 3 of page 1/N should be included in the short-list. Thus, there would be 14
companies in the short-list intead of 16 recommended by Advisor (0)."

152. On 8th of SEptember, 1992, Mr. Nair, as Member of the Committee, agreed to a noting that
only three companies, Bharti Cellular, BPL Systems and Pprojects and Skycell qualified for selection.
After further discussion, 8 companies came to be selected and the note was accordingly put up on 9-
10-92. This recommendation is agreed to by Mr. Nair.

153. According to Mr. Harish Salve, the very persence of Mr. Nair itself will amount to bias.

154. In this case, as noted above, the crucial test is whether there was a real likelihood of biads. As
to how Mr. R. Satish Kumar, the son of Mr. B. R. Nair, came to be appointed in BPL Systems and
Projects is explained in the additional affidavit filed on behalf of Blp Systems and Projects Ltd.,
Respondent No. 10, by Mr. S. Sunder Rao Corporate Personnel Manager of BPL Group of Companies,
including respondent No. 10 company. The relevant portion is extracted as under :

"With regard to the selection and appointment of Shri R. Satish Kumar I state as follows :

That the respondent No. 10 company desired to employ certain managers and executives as
follows :

(i) Sr. Manager, (Push Button Telephone) for New Delhi, Bangalore and Bombay.

(ii) Manager (Communications) for Madras, Calcutta and Bangalore.

(iii) Territory Manager (Sales) for Delhi Hyderbad and Madras.

(iv) Sales Executive for Delhi, Madras, Kanpur, Chandigarh, Baroda, Kochhi, Calcutta, Bhopal,
Poona and Coimbatore.

These post were advertised for in several newspapers as follows :

(i) The Times of India, Delhi and Bombay Edition.

(ii) The Hindustan Times, Delhi Edition.

(iii) Statesman, Calcutta Edition.

(iv) The Hindu, All India Edition.

(v) Deccan Herald, Bangalore.

These advertisements appeared between 26th August, 1991 and 29th August, 1991. The
eligibility conditions for the candidates was specified and with regard to the post of Territory
Manager (Sales) it was mentioned that the candidates should be an Electronics/Electrical
Engineer with 5/6 years experience of office automation products, Computer, Telecom
Equipments, etc.....
 In response to advertisement Shri R. Satish Kumar applied for the post of Territory Manager
(Sales) Vide his letter dated 28th August, 1991 enclosing thereby his bio-data.

As per practice of the respondent Company the bio-data of all the applicants were scrutinised
by the Personnel Department and therefore by the Asst. General Manager of the respondent
Compnay. Thereafter the shortlisted candidates were called for interview on various dates.
Shri Satish Kumar was called for an interview on 6th September, 1991. Two other candidates
were also interviewed for this post. Shri Satish Kumar was interviewed by the Senior Officer
of the Company including myself. At the conclusion of the interview as per practice, an
internal assessment form was filled by the interviewers....

On the basis of the said interview Shri Satish Kumar was selected and a letter dated 21st
October, 1991 was addressed to him offering him the said post. Shri Satish Kumar was
required to report for duty on or before 2nd December 1991 at Bangalore. Shri Satish Kumar
however requested for some time to enable him to handover the charge in his previous
company and this was agreed to by the company. Shri Satish Kumar accordingly joined
respondent No. 10 on 6th January, 1992.....

I state and submit that Shri Satish Kumar was selected by respondent No. 10 company in the
normal course and the selection was purely on merit."

155. It is to be seen that Mr. Satish Nair is only one of the officers in BPL Systems and Projects,
which has over 5500 employees in 27 offices all over India, there are 89 officers of his rank.

156. Mr. B.R. Nair was not a decision-maker at all. He was one of the recommending authorities. As
Director General of Communications as well as Telecom Authority his involvement in the approval
and selection of tender was indispensable. He came to be appointed as member (Services) on 29-5-
92. By virtue of the notification dated 28-7-92 Mr. B. R. Nair became the Director General of
Telecommunication. As such, he could exercise all the powers under Section 3(6) of the Indian
Telegraphs Act of 1885. Such a Telecom Authority has the right to grant cellular operating licences
to the successful party and also rmject any bids without assigning any reason. Registration fees,
security deposit and other financial charges shall be fixed by the licensor in consultation with the
Telecom Authority. This is what is stated in the financial bid. Therefore, Mr. B. R. Nair could not
dissociate himself from the decision-making process. It is under these circumstances the High Court
rightly applied the doctrine of necessity. This Court in Charan Lal Sahu v. Union of India, (1990)
1 SCC 613 at 694 dealt with this doctrine which is stated as follows :

"The question whether there is scope for the Union of India being responsible or liable as joint
tort-feasor is a difficult and different question. But even assuming that it was possible that
the Central Government might be liable in case of this nature, the learned Attorney General
was right in contending that it was proper that the Central Government should be able and
authorised to represent the victims. In such a situation, there will be no scope of the violation
of the principles of natural justice. The doctrine of necessity would be applicable in a situation
of this nature. The doctrine has been elaborated, in Halsbury's Laws of England, 4th edn.,
page 89, paragraph 73, where it was reiterated that even if all the members of the Tribunal
competent to determine a matter were subject to disqualification, they might be authorised
and obliged to hear that matter by virtue of the operation of the common law doctrine of
necessity. An adjudicator who is subject to disqualification on the ground of bias or interest in
the matter which he has to decide may in certain circumstances be required to adjudicate if
there is no other person who is competent or authorised to be adjudicator or if a quorum
cannot be formed without him or if no other competent tribunal can be constituted."

157. Therefore, we are unable to accept the contentions of Mr. Soli J. Sorabjee and Mr. Harish Salve.

158. We hold Mr. B.R. Nair's involvement did not vitiate the selection on the ground of bias. Since
we have reached this conclusion we are not going to the other questions argued by Mr. F. S.
Nariman whether India Telecom or Tata Cellular could urge this point relating to bias.

Point No. 4 : Whether the Apex Committee has been bypassed ?

159. After finding that only there companies qualified for selection on 8-9-92 the following note was
made by Mr. G. T. Naryanan, Adviser (Operations) :

"The financial bid which was approved by the apex committee was given to the shortlisted
bidders and these were received and opened on 17-8-1992. These were evaluated by the
Tender Evaluation Committee (TEC). The evaluation report is placed below. The financial
evaluation was done based upon the weightages of the various parameters namely, rental,
financing, foreign exchange inflow/outflow, financial strength, experience and purchase plans.
 The rental was given the maximum weightage. The various guidelines made for giveing the
marks are at Annexure I (Page 11, Flag 'A').

So far as the rental and other allied parameters are concerned, there are wide variations of rent,
deposit, registration/connection fee. In some cases rent is zero. It was considered by the TEC that
these are to be equated to one parameter as 'equated rental' and the method adopted was loading
the basic rental and other charges like deposit, interest rate @ 13% per annum. Based upon these
assumptions, the gradation for various bidders for each city is at page 9 of the main report.

The Chairman and Members of the Telecom Commission were consulted in this regard. It was felt
that the rate of interest adopted by the TEC was low, and the maximum lending rate of the State
Bank of India as on 1-8-1992 viz. 21.75% is more appropriate to adopt both for refundable and non-
refundable deposits and non-returnable charges. For the non-refundable charges the monthy
amortised value over 5 years at the lending rate viz. 21.75% should be used for loading the rental,
to get at the equivalent rental value which represents the actual montly burden on the sbuscribers.
As per this guideline, the TEC gave the fresh calculation on 7-9-1991 and a new gradation list was
prepared which is placed at Flag 'B'.

After examining the TEC report the following points have come to light-

(i) M/s. Hutchison Max India Ltd. in their bid document (Annexure D) have not given proper
and full compliance. The TEC has observed "Complicance to Chapter III (Operative
Conditions) and Chapter IV (Financial Conditions) has not been indicated by the bidder."
Thus, it clearly shows that they have not complied with these important conditions which
form the very basis of the financial bid. It is evident that the bidder has serious reservations
about financial conditions and operative conditions and if granted a licence, there is a
possibility of litigation.

(ii) Since we require good operators with experience the minimum of 10 marks out of 15 for
this parameter is considered a must and those bidders who have scored less than 10 for this
parameter should be disqualified. This represents an experience of handling of 1 lakh cellular
phones or 80, 000 with a GSM licence.

(iii) In accordance with the policy of the Government for encouraging foreign exchange the
inflow of foreign exchange should be considered. For this parameter the TEC had allocated 5
marks to those bids which were foreign exchange neutral. Those getting more than 5 indicate
a net foreign exchange inflow. Thus, 5 marks or above for this parameter is considered
essential and those getting below 5 marks deserves to be disqualified.

So with the points listed above taken into account, the following companies qualify citiwise as per
the gradation-

Bombay
Delhi

1. Bharati Cellular 1. Bharati Cellular

2. BPL Systems and Projects Ltd. 2. BPL Systems and Projects Ltd.

3. Sterling Cellular 3. Sterling Cellular

4. Tata Cellular 4. Tata Cellular

Calcutta Madras

1. Bharati Cellular 1. Bharati Cellular

2. Sterling Cellular 2. Sterling Cellular

3. Tata Cellular 3. Skycell

4. Tata Cellular

(on an exclusive basis). (on an exclusive basis)

While making the final selection, it should be borne in mind that Sterling Celluar has got a problem
which is explained in the notes of DDG (Vig.) placed below. Sterling Computer which is mentioned in
the notes of DDG (Vig.) flag C has a tie up with Sterling Cellular from the list of approved operators.

Summarizing, the following opperators are recommended for giving the cellular licence -

Name of the Company Equated rental FE Inflow/Outflow Experience Overall Collaborator

(1) (2) (3) (4) (5) (6)

Bombay

5-------------

1. Bharati Cellular 37.3 7 15 78.3 SRF France

2. BPL Systems and Projects 33.2 6 14 76.2 France Telecom

Delhi

--------------

1. Bharati Cellular 41.0 8 15 83.0 SRF France

2. BPL Systems and Projects Ltd. 33.8 6 14 76.8 France Telecom

Madras

--------------

1. Bharati Cellular 38.5 8 15 80.0 SRF France

2. Skycell 24.6 10 15 71.6 Bell South

Calcutta

--------------

1. Bharati Cellular 27.1 8 15 69.1 SRF France

There is no other bidder who qualifies for giving the licence. Even though Tata Cellular fulfills all the
conditions but in bid document they have based their calculations on single operator concept.
However, we may, if approved by Telecom Commission and High Power Committee, make a counter
offer to operate on a non-exclusive basis.

After the operators are selected, tariff fixation and other licensing terms can be negotiated by the
Telecom Authorities.

A separate note is being perpared for sending to the High Power Committee based upon the
observations that are likely to be made on this note.

For approval, please

Member (Services)

Member (Production) Member (Finance) Chairman (T.C.)

Sd/8-9-92

(G.T. Narayan)

Adviser (Operations)

The proposal on pre-page with all the relevant calculation sheets and TEC report, Copy of the F. B.
document may please be sent to the high power committee nominated by NOS (C) for its
consideration and for making final recommendations to the Govt, Re. selection of the licensees.

Sd/-

10-9-92

Adv. (o) - Out of Stn.

DDG (TM)

A brief note, copies of TEC report, financial tender document have been sent to the High Power
Committee. The Note was shown to Member (S) before dispatch. (Emphasis supplied)
Sd/-

10-9-92

Adv. (O)

Sd/-

(G. T. Narayan)

14-9-92"

160. On 10-9-92 the Chairman (TC) made the following note :

"In pursuance of the orders of the MOS (C), a Committee consisting of Principal Secretary to
the Prime Minister, in his capacity as Chairman, Foreign Investment Promotion Board,
Secretary Finance, Secretary Electronics and Chairman Telecom Commission was appointed
to make recommendations regarding selection of the franchisees to provide Cellular Mobile
Telephone Service in the four metro cities. The committee examined the bids received against
the tenders floated on the basis of Tender Evaluation Committee report and made
recommendations to MOS(C) regarding short-listing of the bidders and the financial bids
document. The finacial bids from the short-listed bidders have now been received and
examined in the Department. The recommendations of the Evaluation Committee are being
forwarded to the members of the High Level Committee appointed by MOS(C) for
examination and making recommendations to the Government regarding final selection of the
franchisees.

I spoke to Principal Secretary to the Hon'ble Prime Minister with the request to expedite the
process. He indicated that the committee earlier appointed by MOS(C) stands dissolved and a
fresh Committee will have to be nominated for considering the financial bids etc. He also
indicated that he proposes to put up the case to the Hon'ble Prime Minister for his clearance.
It is, therefore, proposed to issue a letter to the members of the High Leval Committee as per
draft placed below. The same may please be seen by MOS(C) for approval before issue.

In the draft letter it has been indicated that the same Committee will also examine the bids
received for provision of the Paging Service in 27 cities - first for short-listing and finalishing
the financial bids and the later for selection of the franchisees. The documents relating to
short-listing of Paging Service bidders have also been sent separately to the members of the
Committee.

Sd/-

SEPT 10, 1992

(H. P. Wagle)

Chairman (TC)

MOS(C)

11-9-92

D.O. to Prin, Section with copiesto F. S./Elec. Section may issue

Sd/-

14-9

P.S.

D.O. issued, pl.

Sd/- 14-9

DDG(TM)
161. However, the D. O. Came to be issued in accordance with the note of 10-9-92 dissolving the
apex Committee. Therefore, it is not correct to contend, as urged by Mr. Harish Salve, that the apex
Committee had been bypassed. The learned Solicitor General is right in his submission.

Point No. 5 : Entry of Hidden Criteria

- Whether valid ?

162. In the original tender document, paragraph 2.2.1 in relation to the Subscriber's Capacity states
as follows :

"Subscriber Capacity : 1000 with modular expansion up to min. 40, 000 subscribers."

163. In Section II of General Condition Clause 1(d) States :

"Copy of the agreement between the Indian and the foreign partner, if any foreign partner is
proposed."

164. Chapter II of General Conditions in paragraph 2..5. states :

"Experience of the Foreign operating partner; "

165. On 8-9-92 M.G.T. Narayan Adviser (Operations)in his note in the file inter alia stated as
follows :

"Since we require good operators with experience the minimum of 10 marks out of 15 for this
parameter is considered a must and those bidders who have scored less than 10 for this
parameter should be disqualified. This represents an experience of handling of 1 lakh cellular
phones or 80, 000 with a GSM licence."

166. These hidden criteria came to be evolved in the following context :

The Apex Committee indicated the parameters in which it stated that "... the committee decided to
consider foreign companies who have experience of operating cellular system of at last five years
and who have developed a reasonable sized network (25, 000 subscribers)."

167. Inter alia it stated in the report of the Section Committee for the Cellular Mobile Telephone
Service Tender :

"The Committee, therefore, drew up the following criteria :-

(i) The experience of the bidding company. Since none of the Indian companies have any
experience of opearting a cellular service, this would necessarily apply to the foreign
collaborator. Also since GSM technology is only now beginning to come into commercial
operation, the Committee decided to consider foregin companies who have experience of
operating a cellular system of at least 5 years and who have developed a reasonable sized
network (25, 000 - 25, 000 subscribers)."

168. On 2-9-92 the Tender Evaluation Committee made the recommendations. Upon these
recommendations Bharti Cellular got three cities, Delhi, Bombay and Madras. Even then BPL
Systems and Projects did not feature. Therefore, it was directed that an additional output of
gradation of different bidders for the four cities by adopting inter alia the highest lending rate of
State Bank of India for 5 years for lending of monthly rental with simple interest on deposits. As per
this revised gradation Bharti Cellular got Delhi, Calcutta and Madras. However, it was eliminated
from Bombay.

169. On 9-9-92, the criterion of one lakh lines was introduced. It was suggested by Mr. G. T.
Narayan, Adviser (Operations) that those who have secured less than 10 marks for this parameter
should be disqualified. This is in relation to the experience of handling of one lakh cellular phones or
80, 000 with GSM line. It is submitted that criterion of experience of 1 lakh lines helped elimination
of Usha Martin in Bombay and created place for BPL Systems and Projects.

170. The criterion of experience was introducted as a ground of disqualification. If the criterion of
experience of one lakh lines is a principal condition to qualify for consideration for Bombay and Delhi
was introduced uniformly then Bharti Cellular could be disqualified. Thus, a relaxation of 80, 000
with the GSM line was introduced. It is important to note the person who evolved this criterion did
not consider Talkland as Bharti Cellular's collaborator.
171. As noted above, the learned Solicitor General would submit that as on 31-12-91 Bharti Cellular
had experience of 81.085 lines of SFR France and 1, 982 lines EMTEL making a total of 83, 067
lines. Added to this, Talkland had an experience of 1, 70, 000 subscribers. The reference to the
marks awarded for comparative evaluation in this context is irrelevant. Besides, even assuming that
in comparative evaluation the holding of the licence may be given some weight cannot be made the
governing factor in determining the experience of a bidder for the purpose of its eligibility.

172. As a result of 8-9-92 recommendations. Bharti Cellular got all the four cities. BPL Systems and
Projects got two out of four cities. Only Skycell got Madras. No fourth party got any city. Having
realised that this decision will patently be unacceptable a relaxation was made on 9-10-92 one day
before the final decision whether those with less than one lakh lines experience could be considered
for Calcutta and Madras. Even, on 9-10-92, Bharti Cellular was evaluated vis-a-vis SRF France and
EMTEL Mauritius. There was no mention of Talkland. On 10-10-92, Bharti Cellular was again
evaluated vis-a-vis its collaborators SFR France and EMTEL Mauritius. In the affidavit filed in the
High Court the Government urged that "one lakh lines carrying 10 points was considered equivalent
to 80, 000 lines with GSM lincence. This, however, had no impact on Bharti Cellular. Bharti Cellular's
Collaborators included Talkland which is one of the highest service providers in United Kingdom."

173. The learned Solicitor General submits that the evaluation in the case of Bharti Cellular was
correct and in any event, including Talkland, Bharti Cellular was properly considered. The parameter
of experience had three components :

1. The number of subscribers.

2. The number of countries.

3. GSM experience.

174. It is true that during evaluation it was noted that any bidder with less than 10 marks out of 15
for experience would stand disqualified. The cut-off of one lakh lines was in the context of minimum
experience of 10 marks. Bharti Cellular had a collaborator other than Talkland, namely, SFR France.
It was memtioned in Bharti Cellular's bid in its tender on 31-12-91 that the number of SFR France
was over 80, 000. By 31st December, 1992 it was estimated to be 1, 10, 000. In August, 1992 when
the bids were submitted SFR France line experience could reasonably be expected to be above one
lakh lines. In addition, SFR had a GSM licence. In view of all, it would not be an unreasonable
estimate on the part of experts to consider Bharti Cellular as having one lakh lines experience.

175. We are not in a position to accept the contentions of Mr. Harish Salve that these criteria were
evolved as tailor-made to suit some other bidders and knock-off others. In a technical matter like
this where the Government of India is embarking upon new communication scheme with advance
technology all the criteria cannot be postulated in the beginning itself. Where the Committee of
Experts, thought certain criteria have to be evolved in order to subserve the interest of the scheme
it is not necessary to have all of them set out in the beginning itself. However, the important
question remains after the evolution ot the criteria whether they have been uniformly and properly
applied, as urged by Mr. Ashok Sen.

176. A careful perusal of the files shows that the Adviser (Operations) selected Bharti Cellular for
franchise, with its collaborators SFR France; FMTEL Mauritius. The same was approved by the
Chairman in his final proposal which was ultimately approved on 10th October, 1992. Thus it is clear
that at no point of time Talkland ever figured as Bharti Cellular's collaborator. SFR France, the
foreign collaborator of Bharti Cellular had GSM Paris area Sept. 23, 1992. As on 31-12-91 it had 81,
085 subscribers with no GSM experience. The number of subscribers was estimated up to 1, 10, 000
by 31st December, 1992. On the date of submission of the bid it was expected to cross the one lakh
mark. The other collaborator EMTEL Mauritius had only an experience of 1, 982 lines. In order to
make Bharti Cellular qualify Talkland is also included as a foreign collaborator. This is factually
wrong, as noted above, because at no point of time Talkland was thought of as foreign collaborator
for Bharti Cellular. Even then, as seen from the file. Talkland is providing marketing, sales, customer
care, billing services to both Vodaphone and Cellnet under contracts with both of them. This (is)
evident from the material produced before us. It states :

"Talkland's sole function is to distribute radiotelephone service. Unlike SFR in France it

neither sets up nor manages networks. In the UK these two activities have been separated by
the 1984 Telecommunications Act. While two operators develop and manage the networks
some 20 marketing companies known as "service providers" deal with the enduser,
undertaking marketing after-sale service and billing. This original mode of organization has
proved beneficial and has helped to promote the rapid development of radiotelephone in the
UK. At the beginning of 1992 there were already some 1.2 million subscribers. This
corresponds to a penetration rate of more than 2% of the population, against around 0.7% in
France Talkland, with a market share of about 13%, is one of the foremost service providers
it has 165, 000 subscribers and reports annual sales of some FRF 1.4 billion."
(Emphasis supplied)

177. In Annexure VII experience of foreign collaborators Item 10 is Bharti Cellular. The number of
subscribers that is put against it is 2, 53, 067. This figure could be reached only by including
Talkland. It is necessary to point out that what is required is either experience of handing one lakh
cellular phones or 80, 000 with the GSM lines. Both the learned Solicitor General and Mr. Kaura
would argue that service is relevant. But the nature of service that is contemplated here as per the
tender document is found in Section III of Commercial Conditions at para 1.4. That reads as under :

"Service refer to the scope of the services defined to be within the licence in para 4, Section
IV."

178. Therefore, one has to obviously refer to para 4 of Section IV which sets out the following :

"In the first instance the system should be capable of providing the following services :

-Tele-services

services
Information type

Speech Telephone

Emergency calls

Data Message

handling system

300 bps access

Short text Communication of short

Alphanumeric messages

Graphics Grp. 3 Fascimile

- Bearer services

Data transmission in Asynchronous duplex circuit mode with PSTN

300 bps (V21)

1200 bps (V 22)

Data transmission in Synchronous duplex circuit mode with PSTN

1200 bps

2400 bps

Mobile access in the Asynchronous mode to the packet assembler/disassembler or packet

switching network

300 bps

1200 bps

Mobile access in the Synchronous mode to the packet switching network

2400 bps

4800 bps

- Supplementary services]

In the first instance the following supplementary services may be provided :-

* Calling Number Identification Presentation

* Calling Number Identification Restriction

* Connected Number Identification Presentation

 * Connected Number Identification Restriction

* Malicious call Identification

* Call Forwarding Unconditional

* Call Forwarding on Mobile Subscriber Busy

* Call Forwarding on No Reply

* Call Forwarding on Mobile Subscriber Not Reachable

* Call Transfer

* Mobile Access Hunting

* Call Waiting

* Call Hold

* Completion of Call to Busy Subscriber

* Three Party Service

* Comference Calling

* Closed User Group

* Advice of Charge

* Freephone Service

* Reverse Charging (Called or Calling MS)

* Barring of all Outgoing Calls

* Barring of Outgoing International Call except those directed to the Home PLMN Country

* Barring of all Incoming Calls

* Barring of Incoming Calls when Roaming Outside the Home PLMN Country."

179. The reliance placed by Mr. Kaura and learned Solicitor General on paragraph 2.1.1. of Section 3
of Commercial Conditions to incluices served is not correct because that speaks of the obligations of
the licensee. That is obvious as seen under :

"2.1 Obligations of the Licensee :

2.1.1 The Licensee shall operate and provide the SERVICES. He will be solely responsbile for
the installation, networking, opeation, treatment of the complaints, issue of bills to his
subscribers, collection of his component of the revenue, claims, damages arising out of this
operation."

180. In the judgment under appeal the High Court has observed :

"Thus, one lakh lines carrying 10 marks was considered equivalent to 80, 000 lines with GSM
lines. Even otherwise the respondents say that this had no impact in the case of Bharti as its
collaborators included Talkland who was one of the largest service providers in U. K.
Experience of providing service was in important consideration and experience of Talkland in
computing Bharti's fireign collaborators was correctly included in the computations and, thus,
its experience exceeded 2.51 lakh lines. The respondents say that Bharti was treated on this
basis and not on the basis of 80, 000 lines. In Support of this agrument Mr. Gupta, learned
Solicitor General, submitted that all services were to be provided by the licensee, and though
Talkland had no operating experience it was having service experience for rendering service
to subscribers which was an important factor. A subscriber is more concerned with the service
than as to how the Celluar Telephone operators. The service would be of any type like billing,
correction of defects in hand sets, shifting of phones, etc. The operation and service though
go hand in hand we do not find anything wrong in taking into account the experience of
Talkland which has been done by the respondents."
181. We are unable to support this finding as it clearly ignores that Talkland never figure as a
collaborator for Bharti Cellular. Further, ignoring the disjunctive clause, two qualifications were
sought to be subsumed to give an undue advantage to Bharti Cellular. Besides, the nature of service
is as set out in para 4 of Section 4 as stated in Condition 1.4 of Section 3. Thus, we hold, (borrowing
the words of Donaldson, L.J., Enna Hotels Ltd. v. Secretary of the State for Environment,
(1980) 41 P and CR 255, "we would not see on what basis the Committee had reached its
conclusion").

182. If, after excluding the experience of Talkland, whether still Bharti Cellular could fulfil the
requisite qualification, namely, 80, 000 GMS lines and whether SFR france with EMTEL Mauritius had
the experience are matters which require to be factually analysed. The Committee may decide this
factual aspect as on the date on which the offer was made i.e. 20th January, 1992. If the finding is
rendered in favour of Bharti Cellular it will qualify.

183. The other "hidden criteria" alleged is about the same foreign collaborator. The Chairman,
Telecom Commission, in relation to these criteria noted " the element of competition willl get vitiated
if the two JVs with a common foreign partner were to be selected to provide the service at the same
location.

184. Concerning this criterion the attack against BPL Systems and Projects, its foreign collaborator
came to be changed in the middle and yet in violation of the conditions laid down in Chapter II,
Clause 7 of the General Conditions. Originally, there were the following three foreign collaborators :

1. France Telecom Mobile International France.

2. McCaw Cellular Commns. Inc.USA

3. LCC Inc. USA

185. At the second stage of financial bid, the name of the third partner has come to be omitted. This
is the argument of Mr. Soli J. Sorabjee and Mr. Harish Salve. The dropping of McCaw resulted in a
change of the joint venture which was not permissible. This is answered by Mr. F. S. Nariman, as
noted above, that the deficiencies in tender conditions could be condoned. Tjis argument is
supported by reference to G.J. Fernandez v. State of Karnataka, (1990) 2 SCC 488 and Poddar
Steel Corporation v. Ganesh Engineering Works, (1991) 3 SCC 273. The condition relating to
change does not include the dropping out one condition of 2 or 3 collaborators. Further, this
condition is not found in the tender documents but only financial bid documents.

186. BPL Systems and Projects submitted its financial bid on 17-8-1992. In that bid McCaw was
never shown. Inasmuch as the financial bid was received by BPL systems and Projects on 31-7-1992
Condition No. 7 was inapplicable or impossible of compliance because the dropping was before
Condition No. 7 was brought to the notice of BPL Systems and Projects. Where, therefore, the
financial bid came to be submitted on 17-8-1992 no question of alteration would ever arise. After all
the object of the first stage was only to short-list and not to allot the franchise. Therefore, there is
nothing wrong in the same.

187. In the financial bid Clause 7 of Chapter II reads as follows :

"No change can be made in the Indian or foreign partners already indicated in the first stage
bid."

188. It is common case between the parties that originally the foreign collaborators of BPL Systems
and Projects were three, as mentioned above.

189. So that is the position at the first stage, on 16-5-1992, when the evaluation took place. Clause
7 of Chapter II. quote above, forbids only change.

(Emphasis supplied)

190. On 17-8-1992, when it submitted bid, McCaw had been dropped out. In does not amount to a
change of foreign collaborator. Still the original two remained. There is no change in joint venture.
This does not violate Clause 7 of Chapter II. (Emphasis supplied)

191. Mr. F.S. Nariman has rightly placed reliance on the abovesaid two rulings; relevant passages
are quoted as under :

In G.J. Fernandes v. State of Karnataka, (1990) 2 SCC 488 at pages 499 to 501, in
paragraphs 13 to 15, in paras 14 to 16), this Court inter alia observed :

".... In the first place, although, as we have explained above, para V cannot but be read with
para I and that the supply of some of the documents referred to in para V is indispensable to
 assess whether the applicant fullfils the prequalifying requirements set out in para I, it will be
too extreme to hold that the omission to supply every small details referred to para Vwould
affect the eligibility under para I and disqualify the tenderer. The question how far the
delayed supply, or omission to supply, any one or more of the details referred to therein will
affect any of the prequalifying conditions is a matter which it is for the KPC to assess. We
have seen that the documents having a direct bearing on para I viz. regarding output of
concret and brick work had been supplied in time. The delay was only in supplying the details
regarding "hollow cement blocks" and to what extent this lacuna affected the conditions in
para I was for the KPC to assess.

Secondly, whatever may be the interpretation that a Court may place on the NIT, the way in which
the tender documents issued by it has been understood and implemented by the KPC is explained in
its "note", makes it clear that the KPC took the view that para I alone incorporated the "minimum
prequalifying/eligibility conditions" and the data called for under para V was in the nature of "general
requirements." It further clarifies that while tenders will be issued only to those who comply with the
prequalifying conditions, any deficiency in the general requirements will not disqualify the applicant
form receiving tender documents and that data regarding these requirements could be supplied
later. Right or wrong, this was the way they had understood the standard stipulations and on the
basis of which it had processed the applications for contracts all along. The minutes show that they
did not deviate or want to deviate from this established procedure in regard to this contract. They
only decided in view of the contentions raised by the appellant that para V should also be treated as
part of the prequalifying conditions, that they would make it specific and clear in their further NITs
that only the fulfilment of prequalifying conditions would be mandatory. If a party has been
consistently and bona fide interpreting the standards prescribed by it in a particular manner, we do
not think this Court should interfere though it may be inclined to read or construe the conditions
differently. We are, therefore, of opinion that the High Court was right in declining to interfere.

Thirdly, the conditions and stipulations in a tender notice like this have two types of consequences.
The first is that the party issuing the tender has the right to punctiliously and rigidly enforce them.
Thus, if a party does not strictly comply with the requiremens of Para III, V or VI of the NIT, it is
open to the KPC to decline to consider the party for the contract and if a party comes to Court
saying that the KPC should be stopped from doing so, the Court will decline relief. The second
consequence, indicated by this Court in earlier decisions, is not that the KPC cannot deviate from
these guidelines in all in any situation but that any deviation, if made, should not result in
arbitrariness or discrimination."

192. In Poddar Steel Corporation v. Ganesh Engineering Works, (1991) 3 SCC 273 at page
276, this Court observed :

"..... As a matter of general proposition it cannot be held that an authority inviting tenders is
bound to give effect to every term mentioned in the notice in meticulous detail, and is not
entitled to waive even a technical irregularity of little or no significance. The requirements in
a tender notice can be classified into two categories - those which lay down the essential
conditions of eligibility and the others which are merely ancillary or subsidiary with the main
object to be achieved by the condition. In the first case the authority issuing the tender may
be required to enforce them rigidly. In the other cases it must be open to the authority to
deviate from and not to insist upon the strict literal compliance of the condition in appropriate
cases."

193. The High Court observed thus :

"We also do not find any error on the part of the respondents in treating the financial bid of
BPL in order if at that stage BPL dropped one of its three foreign collaborators (which were
named by it at the technical bid stage) as otherwise financial bid satisfied all the criteria and
dropping of the one of the collaborators made no difference."

It further observed :

"We, therefore, find that stand of the petitioner that any undue preference had been given to
some of the companies cannot be upheld. We even otherwise do not find that deviation or
relaxation in the standards prescribed has resulted in any arbitrariness or discrimination.
(See in this connection G.J. Fernandez v. State of karnataka, (1990) 2 SCC 488 . We do
not think it necessary for us to go into each and every deficiency as alleged by the petitioner;
we find that the action of respondents had been bona fide. Motivation is providing of best
possible service to the consumers."

194. We are in agreement with this finding.

195. Yet another attack that is made against BPL Systems and Projects is that it submitted its
application for foreign collaborator on 22-4-1992 to SIA beyond the cut-off date of 31-3-1992. It
should not loom large because there was a confusion as to who was competent authority to receive
the application. As a matter of fact BPL Systems and Projects did submit its application for foreign
collaboration on 31-3-1992 to the Reserve Bank of India. When that application was returned on
20th April, 1992 it came to be sent to SIA on 22-4-1992. We do not think BPL Systems and Projects
could be faulted on this score. Equally, the agrument that the memorandum and articles do not
mean cellular business does not merit accpetance at our hand. In fact, the High Court has correctly
construed the main object, namely, to design, develop, fabricate, manufacture, assemble, exporting
from and importing into India by self or otherwise dealing and act as consultants and render services
in connection with all kinds of telecommunication equipments as including cellular telephones.

196. Now we go on to Huchison Max. It came to be rejected by the TEC. Relevant note dated 9-10-
1992 inter alia reads as follows :

"Huchison Max : Non-compliance of operative and financial conditions laid down in Chapter
III at the time of opening of Finalcial Bids. They have accepted these conditions, through a
letter, explaining their earlier non-compliance as typographical error."

197. Section 2, General Conditions, para 3 states as under :

"3. Compliance :

Point to point compliance report in respect of technical, commercial and views on financial
conditions must be submitted. Deviation, if any, must be separately highlighted. In case
compliance report is not enclosed with the offer the offer shall not be considered."

198. The pro forma of the compliance statement is in the following form :

"This company hereby agrees to fully comply with all Technical, Commercial and General
Conditions of Tender Document No. 44-24/91-MMC including amendments/clarifications
issued by the Department of Telecom without any deviations and reservations.

This company also hereby agrees to fully comply with all paragraphs of Chapter II : General
Conditions, Chapter III : Operating Conditions, Chapter IV : Financial Conditions and Chapter
V : Tariffs of document No. 44/24/91 MMC (FINANCIAL) without any deviations and
reservations.

Signature of the authorised signatory of the bidder/operating company

for and on behalf of_____________________

(Name of the company)"

199. The compliance statment, as submitted by Huchison Max Telecom, is as under :

"Compliance Statement

This company hereby agrees fully to comply with all Technical, Commercial and General
Conditions of Tender document No. 44-24/91-MMC including amendments/clarifications
issued by the Department of Telecom without any deviations and reservations.

This company also hereby agrees to fully comply with all paragraphs of Chapter II : General
Conditions and Chapter V : Tariffs of Document No. 44-24/91-MMC (FINANCIAL) without any
deviations and reservations.

Signature of the authorised signatory of the bidder/operating company.

For and on behalf of HUTCHISON MAX TELECOM PRIVATE LIMITED

Sd/-

(ASHWANI WINDLASS)

DIRECTOR."

200. In all the four separate tender documents similar compliance statements were filed.

201. Therefore, obviously, there is no reference to either Chapter III : Operating Conditions or
Chapter IV : Financial Conditions. It has already been noted that for the second stage the last date
for filing tender document was 17-8-1992. On 11-9-1992, Hutchison Max wrote a letter to the
Minister for State for Communciation about the inadvertent error due to a typographical/clerical
mistake in not referring to Chapter II or Chapter IV. It is relevant to note that in the concluding
paragraph of that letter it is stated :

"We reiterate and reconfirm out unequivocal compliance without any reservations and
deviations with the said tender conditions. Accordingly, enclosed herewith is a corrected
Compliance Statement duly signed by the authorised signatory of the Company which may
kindly be taken on record."

202. The proper Compliance Statement came to be filed after. Since it had not filed a proper
Compliance Statement it had come to be excluded (which knowledge was gained by it) it made
representations to the Chairman, Telecom Commission and the Prime Minister. According to Mr.
K.K.Venugopal it is an accidental omission amounting to a clerical error. In support of this he cites
Moffett, Hodgkins and Clarke Company v. City of Rochester, (1899) 178 US 373. The
headnote reads :

"A mistake in the proposals by a bidder for a contract with a city, which is promptly declared
by an agent of the bidder as soon as it is discovered and before the city has done anything to
alter its condition, will not bind the bidder by reason of a provision in the city charter that if a
bid shall not be withdrawn or concelled until the board shall have let the contract."

203. At page 386 it reads :

"The complainant is not endeavouring 'to withdraw or cancel a bid or bond.' The bill proceeds
upon the theory that the bid upon which the defendants acted was not the complainant's bid;
that the complainant was no more responsible for it than if it had been the result of agraphia
or the mistake of a copyist or printer. In other words, that the proposal read at the meeting
of the board was one which the complainant never intended to make, and that the minds of
the parties never met upon a contract based thereon. If the defendants are correct in their
contention there is absolutely no redress for a bidder for public work, no matter how
aggravated or palpable his blunder. The moment his propoal is opened by the executive
board he is held as in a grasp of steel. There is no remedy, no escape. If, through an error of
his clerk, he has agreed to do work worth $ 1, 000, 000 for $ 10, he must be held to the
strict letter of his contract, while equity stands by with folded hands and sees him driven into
bankruptcy. The defendents' position admits of no compromise, no exception, no middle
ground. (82 Fed, Rep. 256)'

204. The alternate submission is the question of even clerical error not arise here because one
month before acceptance Hutchison Max had sent the compliance form. Where the matter is purely
technical the Court should not exercise the power of judicial review. We find great force in this
submission. We are clearly of the opinion that the mistake is in relation to a non-essential matter
that is in relation to peripheral or collateral matter. There has been every intention to comply with
the terms of the bid for an accidental omission it cannot be punished. We concur with the High
Court.

205. Regarding Sterling Cellular the note dated 9-10-1992 inter alia states as under :

"This J.V. has the Indian partner M/s. Sterling Computers Ltd. which is under investigation by
CBI, in respect of their dealings with MTNL for publication of directories Delhi High Court in
recent judgment passed strictures on the deal. The Joint Venture has, therefore, been
excluded from consideration. CBI report is, however, yet to be received and formal
blacklisting proposal in respect of the first has not been initiated so far. Exclusion has
therefore to be justified."

Note dated 10-10-1992 reads as follows :

"MOS (C) further discussed the case with me today, when M(S) was present.

'He indicated that after examining the reasons for elimination for the six short-listed parties
from consideration for selection, he is of the opinion that M/s. Sterling Cellular need not be
excluded outright, since CBI report has not yet been received. The company may be
considered for selection and included in the select list on a provisional basis, if found eligible
otherwise. Similarly, M/s. Indian Telecom Ltd. (Partner OIC Australia) need not be eliminated
just because they have desired exclusive licence. We may offer them the licence on a non-
exclusive basis, if they are found eligible. It is up to them to convey acceptance to the offer.
Exclusion of other four companies can stand for reasons indicated.'
 I have examined the case again. I recommend that if M/s. Sterling Cellular is to be selected
on provisional basis, the Company may be allotted Madras for following reasons :

(a) Foreign exchange investment profile submitted by the company indicates that there will
be a heavy F.E. outflow over 3 years if the company were to be allotted Bombay or Delhi.

(b) Madras is the least popular of the stations along with Calcutta. Rentals quoted are high as
pointed in our earlier note. M/s. Usha Martin will help bring down the rentals in Calcutta.
Allotment of M/s. Sterling to Madras will achieve the same purpose.

(c) Any delay in allotment of licence to M/s. Sterling on account of the C.B.I. investingations
will have the least adverse effect in Madras for lack of competition to other licensee.

M(S) may kindly examine them again in the light of the observations of MOS(C) and rework
out the select list. The case may be put up for approval of MOS(C).

206. Then it came to be selected on the approval of the Minister.

207. The High Court in upholding the selection observed thus :

"The case of Sterling Cellular, however, appears to us to be rather strange. There were no
strictures against the holding of this company by the name Sterling Computres Ltd. In M/s.
M and N Publications Limited v. Mahanagar Telephones Nigam Limited, 1992(4) DL
24 by this Court and the strictures were only against MTNL and United Indian Periodicals Pvt.
Ltd.(UPI) and United Database (India) Pvt. Ltd. (UDI). M/s. Sterling Computers Ltd. had got
associated with UPI/UDI in getting a supplementry agreement for publication of telephone
directories for the cities of Bombay and Delhi. This supplementary agreement was struck
down. The Supreme Court in appeal Sterling Computers Limited v. M/s. M and N
Publications Limited, (1993) 1 JT (SC) 187 against that judgment also did not appear to
have made any strictures. There was nothing on the record of the respondents to suggest
that any CBI equiry was pending against this company. There was no FIR and no preliminary
report adverse to the company and we feel the ghost of CBI has been unnecssarily brought
into play. The company appears to have been punished for no sin of its. However, since the
company has not complained we will leave the matter at that."

208. It is submitted by Mr. Parasaran that as on the date of the judgment no inquiry was pending. It
was only after 10th June, 1993 an FIR was filed by CBI when the High Court of Madras was
approached for quashing the FIR under Sections 482, Cr. P. C. An order by consent was passed. CBI
was allowed to proceed with the investigation and complete the same within one year. It was also
ordered that there would be no arrest or harassment. Therefore, as on the date of selection there
was no adverse report against Sterling Computers.

209. On the date of consideration by the Technical Evaluation Committee its position was even
better. If, therefore, this aspect has been borne in mind it is not for us to reweigh the claims and
come to one conclusion or another. So much for selections.

210. A letter dated 27-8-1993 by Department of Communciations, Telecom Commission was

addressed to the appellants as follows :

"Department of Telecommunications

(Telecom Commission)

New Delhi-110001

No. 842-2/92 - TM

Dated : 27th August, 1993

To

M/s. Tata Cellular Ltd.,

Bombay House,

24, Homi Modi Street,

BOMABY-400001

(Kind attention Shri Z. A. Baig)

 Sub : Tender No. 44-21/91 - MMC (FIN), for franchise for cellular mobile telephone service
for Bombay, Delhi, Calcutta and Madras.

Kindly refer this office letter of even No. dated 2-10-1992 informing you that M/s. Tata
Cellular Ltd. were provisionally selected for franchise for providing cellular mobile telephone
service at Delhi on a non-exclusive basis.

That matter has been reconsidered in the light of the judgment delivered by the High Court of
Delhi in this case and a revised list of provisionally selected bidders in the cities of Bombay,
Delhi, Calcuta and Mardas has been prepared. The revised list does not include mobile
telephone service in any of the four cities. The earlier letter of even No. dated 12-10-1992
may therefore be treated as cancelled.

Sd/-

(S.K. Garg) 27-8-93

DDG (TM)"

211. From this letter we are not able to fathom the reason for omission. As seen above, Tata Cellular
was originally selected for Delhi. By implementation of the judgment of the High Court it has been
left out. Before doing so, as rightly urged by Mr. Soli J. Sorabjee, this appellant ought to have been
heard. Therefore, there is a clear violation of the principle of natural justice. On an overall view we
find it has two distinctive qualifications. In that :

1. It has not borrowed from any commercial bank.

2. It has an annual turnover from Indian parameters of Rs. 12, 000 crores and the annual
turnover of the foreign parameters, Rs. 51, 000 crores. Comparatively speaking, the other
companies do not possess such high credentials yet it has been awarded low marks with
regard to the reliance on Indian public financial institutions and the financial strength of the
parameters/partner companies.

212. These qualifications could have been validly urged had it been heard. Then, we do not know
what decision could have been arrived at.

213. Indian Telecomp had been omitted for the following reasons as indicated in note dated 9-10-
1992 :

"Indian Telecomp (Partner Telecom Malasia) :

Limited experience. Telecom Malasia already selected as partner of M/s. Usha Martin Icc,
Calcutta."

214. We cannot find fault with this reasoning since there can be only one foreign collaborator. It
cannot have Telecom Malasia as its collaborator since Usha Martin has the same foreign collaborator.

215. In the case of Ashok Leyland, the noting as, seen above, is as under :

"In both cases of - (i) M/s. Ashok Leyland and (ii) M/s. Vam Organic Chemicals Ltd. - a joint
venture company has not been formed as stipulated in the tender, and there is no indication
of the equity structure of the extent of participation of the foreign collaborators."

216. We cannot interfere with the discretion of the Committee.

217. In the above two cases, we are obliged to interfere on the ground of arbitrariness and violation
of the principle of natural justice confining ourselves to the doctrine of judicial restraint, however, by
the application of permissible parameters to set right the decision-making process. (Emphasis
supplied).

218. We make it clear that we are not disturbing the other selections since the power of judicial
review is not an appeal from the decision. We cannot substitute our decision since we do not have
necessary expertise to review.

219. Lastly, quashing may involve heavy administrative burden and lead to delay, increased and
unbudgeted expenditure ; more so, in a vital field like telecommunication.

220. In view of the foregoing, we thus reach the conclusion that Bharti Cellular could not claim the
experience of Talkland. This conclusion has come to be arrived at on the basis of the parameters we
have set out in relation to the scope of judicial review. We may reiterate that it is not our intention
to substitute our opinion to that of the experts. Apart from the fact that the Court is hardly equipped
to do so, it would not be desirable either. Where the selection or rejection is arbitrary, certainly this
Court would interfere.

221. In the result, we hold that Bharti Cellular's claim based on Talkland's experience is incorrect.
Talkland's experience will have to be excluded. The matter will have to be reconsidered on a factual
basis as on 20th January, 1992, in the light of what we have observed above. The claim of Tata
Cellular will have to be reconsidered in the light of the above observations. Accordingly, civil appeals
arising out of SLP (C) Nos. 14191-94 of 1993 will stand allowed. Civil Appeals arising out of SLP (C)
No. 14266 of 1993, SLP(C) No. 17809 of 1993 and T.C. (C) No. 49 of 1993 will stand dismissed with
no order as to costs.

Order accordingly.

Judgment located by a hyperlink.

State of U.P. v. Deoman Upadhyaya, (SC)

1960 A.I.R. (SC) 1125 : 1961 (1) SCR 14 : 1960 Cri.L.J. 1504

SUPREME COURT OF INDIA

Before :- S.K. Das, J.L. Kapur, K. Subba Rao, M. Hidayatullah and J.C. Shah JJ.

Criminal Appeal No. 1 of 1960. D/d. 6.5.1960.

6.5. 1960

State of U.P. - Appellants

Versus

Deoman Upadhyaya - Respondent

Attorney-General of India - Intervener

For the Appellant :- H.N. Sanyal, Addl. Solicitor-General of India, G.C. Mathur and C.P. Lal,
Advocates.

For the Intervener :- H.J. Umrigar, O.P. Rana and D. Goburdhan, Advocates, C.K. Daphtary,
Solicitor-General of India and H.N. Sanyal, Addl. Solicitor-General of India, B.R.L. Iyengar and T.M.
Sen, Advocates.

A. Constitution of India, Article 14 - Interpretation - American decisions, having approach

different to provisions of Constitution of India cannot be relied upon.

[Para 14]

B. Evidence Act, 1872, Section 24, Sections 25 and 27 - "Person accused of any offence" -
The expression, "accused person" in Section 24 and the expression "a person accused of
any offence" in Section 25 have the same connotation, and describe the person against
whom evidence is sought to be led in a criminal proceeding.

[Paras 7, 18]

C. Constitution of India, Article 14 - Evidence Act, 1872, Sections 25, 26 and 27 - Criminal
Procedure Code, 1898, Section 162(2) - Validity of Sections - Section 27 Evidence Act, and
those of Section 162 (2) Cr.P.C., in so far as they relate to Section 27, Evidence Act do not
violate Provisions of Article 14 of the Constitution - Sections are valid.

[Para 17]
D. Constitution of India, Article 136 - Criminal Procedure Code, 1898, Sections 374 and
376 - Death sentence - Confirmation - High Court acquitting the accused and not
confirming sentence of death Appeal by State to Supreme Court allowed - Confirmation of
Sentence of death is essential for execution - Supreme Court confirming sentence of death
- Ordered passed by Court of sessions restored.

[Para 24]

Cases referred :

1. Narayan Swami v. Emperor, 66 Ind App 66.

2. Legal Remembrancer v. Lalit Mohan Singh, ILR 49 Cal 167.

3. Santokhi Beldar. v. Emperor, ILR 12 Pat 241.

4. Deonandan Dusadh v. Kind Emperor, ILR 7 Pat 411.

5. Durlav Namasudra v. Emperor, ILR 59 Cal 1040.

6. Bharosa Ramdayal v. Emperor, ILR (1940) Nag 679.

7. Jalla v. Emperor, AIR 1931 Lah 278.

8. Vest Coast Hotel Co. v. Parrish, (1936)300 US 379.

9. Weaver v. Palmer Bros. Co., (1925)270 US 402.

10. Miller v. Wilson, (1914) 236 US 373.

11. Heath and Milligan Mfg., Co. v. Worst, (1907)207 US 338.

12. Basheshar Nath v. Commr. of Income Tax, AIR 1959 SC 149.

13. Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar, 1959 SCR 279.

14. Gulf Colorado and Sania Fe Rly., Co. v. Ellis, (1897) 165 US 150.

15. Sakhawat Ali v. State of Orissa, 1955-1 SCR 1004.

16. John A. Watson v. State of Maryland, (1909)54 Law Ed 987.

17. Jeffrey Manufacturing Co. v. Harry O. Blagg (1914)59 Law, Ed 364.

18. Iron Mountain and Southern Rly., Co v. State of Arkansas, (1915)60 Law Ed. 776.

19. Weaver v. Palmer Bros., Co. (1925)70 Law Ed. 654.

20. Ibrahim v. Emperor, 1914 AC 599.

21. R. v. Thompson, (1893)3 QB 12.

22. R. v. Warrickshall, (1783)1 Leach 263 : 168 ER 234.

23. R. v. Baldry, (1852)5 Cox CC 523.

24. R. v. Knight and Thayre, (1905)20 Cox CC 711.

25. Rex v. Booth and Jones, (1910)5 Cr. App Rep 177.

26. R. v. Lockhart, (1785)1 Leach 386 : 168 ER 295.

27. Rex v. Richard Griffin, (1809)168 ER 732.

28. Rex v. Francis Jones, (1809)168 ER 733.

29. Rex v. David Jenkins, (1822)168 ER 914.

JUDGMENT
J.C. Shah, J. (For himself and S.K. Das and Kapur, JJ.) - The Civil and Sessions Judge,
Gyanpur, convicted Deoman Upadhyaya - respondent to this appeal - of intentionally causing the
death of the one Sukhdei in the early hours of 19-6-1958, at village Anandadih District Varanasi and
sentenced him to death subject to confirmation by the High Court. The order of conviction and
sentence was set aside by the High Court of Judicature at Allahabad. Against that order of acquittal,
the State of Uttar Pradesh has appealed to this Court with a certificate granted by the High Court.

2. Deoman was married to one Dulari. Dulari's parents had died in her infancy and she was brought
up by Sukhdei, her cousin. Sukhdei gifted certain agricultural lands inherited by her from her father
to Dulari. The lands gifted to Dulari and the lands of Sukhdei were cultivated by Mahabir, uncle of
Deoman. Mahabir and Deoman entered into negotiations for the sale of some of these lands situated
at village anandadih, but Sukhdei refused to agree to the proposed sale. According to the case of the
prosecution, in the evening of 18-6-1958, there was an altercation between Deoman and Sukhdei,
Deoman slapped Sukhdei on her face and threatened that he would smash her face. Early in the
morning of June 19, Deoman made a murderous assault with a gandasa (which was borrowed by
him from one Mahesh) upon Sukhdei who was sleeping in the courtyard near her house and killed
her on the spot, and thereafter, he threw the gandasa into the village tank, washed himself and
absconded from the village. He was arrested in the afternoon of the 20th near the village Manapur.
On June 21, he offered to hand over the gandasa which he said, he had thrown in the village tank,
and in the presence of the investigating officer and certain witnesses, he waded into the tank and
took out a gandasa, which, on examination by the Serologist, was found to be stained with human
blood.

3. Deoman was tried for the murder of Sukhdei before the court of Session at Gyanpur. The trial
Judge, on a consideration of the evidence led by the prosecution, held the following facts proved:

(a) In the evening of June 19, 1958, there was an altercation between Sukhdei and Deoman
over the proposed transfer of lands in village Anandadih and in the course of the altercation,
Deoman slapped Sukhdei and threatened her that he would smash her "mouth" (face).

(b) In the evening of June 18, 1958, Deoman borrowed a gandasa (Ex. 1) from one Mahesh.

(c) Before day-break on June 19, 1958, Deoman was seen by a witness for the prosecution
hurrying towards the tank and shortly thereafter he was seen by another witness taking his
bath in the tank.

(d) Deoman absconded immediately thereafter and was not to be found at Anandadih on June
19, 1958.

(e) That on June 21, 1958, Deoman, in the presence of the investigating officer and two
witnesses, offered to hand over the gandasa which he said he had thrown into a tank, and
thereafter he led the officer and the witnesses to the tank at Anandadih and in their presence
waded into the tank and fetched the gandasa (Ex. 1) out of the water. This gandasa was
found by the Chemical Examiner and serologist to be stained with human blood.

4. In the view of the Sessions Judge, on the facts found, the 'only irresistible conclusion' was that
Deoman had committed the murder of Sukhdei early in the morning of June 19, 1958, at Anandadih.
He observed.

"The conduct of the accused (Deoman) as appearing from the movements disclosed by him,
when taken in conjunction with the recovery at his instance of the gandasa stained with
human blood, which gandasa had been borrowed only in the evening preceding the brutal
hacking of Sukhdei, leaves no room for doubt that Deoman and no other person was
responsible for this calculated and cold-blooded murder."

At the hearing of the reference made by the Court of Session for confirmation of sentence and the
appeal filed by Deoman before the High Court at Allahabad, it was contended that the evidence that
Deoman made a statement before the police and two witnesses on June 21, 1958, that he had
thrown the gandasa into the tank and that he would take it out and hand it over, was inadmissible in
evidence, because Section 27 of the Evidence Act which rendered such a statement admissible,
discriminated between persons in custody and persons not in custody and was therefore void as
violative of Article 14 of the Constitution. The Division Bench hearing the appeal referred the
following two questions for opinion of a Full Bench of the Court:

(1) Whether Section 27 of the Evidence Act is void because it offends against the provisions
of Article 14 of the Constitution? And

(2) Whether sub-section. (2) of Section 162 of the Code of Criminal Procedure in so far as it
relates to Section 27 of the Evidence Act is void?
5. The reference was heard by M. C. Desai, B. Mukherjee and A. P. Srivastava JJ. Mukherjee J., and
Srivastava J., opined on the first question, that "Section 27 of the Evidence Act creates an
unjustifiable discrimination between "persons in custody" and "persons out of custody", and in that it
offends against Article 14 of the Constitution and is unenforceable in its present form, and on the
second question, they held that sub-section. (2) of Section 162 of the code of Criminal Procedure.
"in so far as it relates to Section 27 of the Evidence Act is void"," Desai J. answered the two
questions in the negative.

6. The reference for confirmation of the death sentence and the appeal filed by Deoman were then
heard by another Division Bench. In the light of the opinion of the Full Bench, the learned Judges
excluded from consideration the statement made by Deoman in the presence of the police officer
and the witnesses offering to point out the gandasa which he had thrown in the village tank. They
held that the story that Deoman had borrowed a gandasa in the evening of June 18, 1958, from
Mahesh was unreliable. They accepted; the conclusions of the Sessions Judge on points (a), (c), and
(d) and also on point (e) in so far as it related to the production by Deoman in the presence of the
police officer and search witnesses of the gandasa after wading into the tank, but as in their view,
the evidence was insufficient to prove the guilt of Deoman beyond reasonable doubt, they acquitted
him of the offence of murder. At the instance of the State of Uttar Pradesh the High Court granted a
certificate that "having regard to the general importance of the question as to the constitutional
validity of Section 27 of the Evidence Act", the case was fit for appeal to this Court.

7. Section 27 of the Evidence Act is one of a group of sections relating to the relevancy of certain
forms of admissions made by persons accused of offences. Sections 24 to 30 of the Act deal with
admissibility of confessions i.e., of statements made by a person stating or suggesting that he has
committed a crime. By Section 24, in a criminal proceeding against a person, a confession made by
him is inadmissible if it appears to the court to have been caused by inducement, threat or promise
having reference to the charge and proceeding from a person in authority .By Section 25, there is an
absolute ban against proof at the trial of a person accused of an offence, of a confession made to a
police officer. The ban which is partial under Section 24 and complete under Section 25 applies
equally whether or not the person against whom evidence is sought to be led in a criminal trial was
at the time of making the confession in custody. For the ban to be effective the person need not
have been accused of an offence when he made the confession. The expression, "accused person" in
Section 24 and the expression "a person accused of any offence" have the same connotation, and
describe the person against whom evidence is sought to be led in a criminal proceeding. As observed
in Narayan Swami v. Emperor, 66 Ind App 66 , by the Judicial Committee of the Privy Council,
"Section 25 covers a confession made to a police officer before any investigation has begun or
otherwise not in the course of an investigation." The adjectival clause "accused of any offence" is
therefore descriptive of the person against whom a confessional statement made by him is declared
not provable, and does not predicate a condition of that person at the time of making the statement
for the applicability of the ban. Section 26 of the Evidence Act by its first paragraph provides "No
confession made by any person whilst he is in the custody of a police officer, unless it be made in
the immediate presence of a Magistrate. Whereas Section 25 prohibits proof of a confession made by
a person to a police officer whether or not at the time of making the confession, he was in custody,
Section 26 prohibits proof of a confession by a person in custody made to any person unless the
confession is made in the immediate presence of a Magistrate. Section 27 which is in the form of a
proviso states "provided that, when any fact is deposed to as discovered in consequence of
information received from a person accused of any offence, in the custody of a police officer, so
much of such information, whether it amounts to a confession or not, as relates distinctly to the fact
thereby discovered, may be proved." The expression, "accused of any offence" in Section 27, as in
Section 25, is also descriptive of the person concerned, i.e., against a person who is accused of an
offence, Section 27 renders provable certain statements made by him while he was in the custody of
a police officer. Section 27 is founded on the principle that even though the evidence relating to
confessional or other statements made by a person, whilst he is in the custody of a police officer, is
tainted and therefore inadmissible, if the truth of the information given by him is assured by the
discovery of a fact, it may be presumed to be untainted and is therefore declared provable in so far
as it distinctly relates to the fact thereby discovered. Even though Section 27 is in the form of a
proviso to Section 26, the two sections do not necessarily deal with evidence of the same character.
The ban imposed by Section 26 is against the proof of confessional statements. Section 27 is
concerned with the proof of information whether it amounts to a confession or not, which leads to
discovery of facts. By Section 27, even if a fact is deposed to as discovered in consequence of
information received, only that much of the information is admissible as distinctly relates to the fact
discovered. By Section 26, a confession made in the presence of a Magistrate is made provable in its
entirety.

8. Section 162of the Cr.. P. C. also enacts a rule of evidence. This section in so far as it is material
for purposes of this case, prohibits, but not so as to affect the admissibility of information to the
extent permissible under Section 27 of the Evidence Act, use of statements by any person to a police
officer in the course of an investigation under Ch. 14 of the Code in any enquiry or trial in which
such person in charged for any offence, under investigation at the time when the statement was
made.

9. On an analysis of Sections 24 to 27 of the Evidence Act, and Section 162 of the Code of Criminal
Procedure, the following material propositions emerge:
 (a) Whether a person is in custody or outside, a confession made by him to a police officer or
the making of which is procured by inducement, threat or promise having reference to the
charge against him and proceeding from a person in authority, is not provable against him in
any proceeding in which he is charged with the commission of an offence.

(b) A confession made by a person whilst he is in the custody of a police officer to a person
other than a police officer is not provable in a proceeding in which he is charged with the
commission of an offence unless it is made in the immediate presence of Magistrate.

(c) That part of the information given by a person whilst in police custody whether the
information is confessional or otherwise, which distinctly relates to the fact thereby
discovered but no more, is provable in a proceeding in which he is charged with the
commission of an offence.

(d) A statement whether it amounts to a confession or not made by a person when he is not
in custody, to another person such latter person not being a police officer may be proved if it
is otherwise relevant.

(e) A statement made by a person to a police officer in the course of an investigation of an

offence under Ch. 14 of the Cr.P.C., cannot except to the extent permitted by Section 27 of
the Evidence Act, be used for any purpose at any enquiry or trial in respect of any offence
under investigation at the time when the statement was made in which he is concerned as a
person accused of an offence.

10. A confession made by a person not an custody is therefore admissible in evidence against him in
a criminal proceeding unless it is procured in the manner described in Section 24, or is made to a
police officer. A statement made by a person, if it is not confessional is provable in all proceedings
unless it is made to a police officer in the course of an investigation, and the proceeding in which it
is sought to be proved is one for the trial of that person for the offence under investigation when he
made that statement. Whereas information given by a person in custody is to the extent to which it
distinctly relates to a fact thereby discovered is made provable, by Section 162 of the Cr.P.C., such
information given by a person not in custody to a police officer in the course of the investigation of
an offence is not provable. This distinction may appear to be somewhat paradoxical. Sections 25 and
26 were enacted not because the law presumed the statements to be untrue, but having regard to
the tainted nature of the source of the evidence, prohibited them form being received in evidence. It
is manifest that the class of persons who needed protection most were those in the custody of the
police and persons not in the custody of police did not need the same degree of protection. But by
the combined operation of Section 27 of the Evidence Act and Section 162 of the Code of Criminal
Procedure, the admissibility in evidence against a person in a criminal proceeding of a statement
made to a police officer leading to the discovery of a fact depends for its determination on the
question whether he was in custody at the time of making the statement. It is provable if he was in
custody at the time when he made it, otherwise it is not.

11. Are persons in custody, by this distinction deprived of "equality before the law, or the equal
protection of the laws" within the meaning of Article 14 of the Constitution? By the equal protection
of the laws guaranteed by Article 14 of the Constitution, it is not predicated that all laws must be
uniform and universally applicable; the guarantee merely forbids improper or invidious distinctions
by conferring rights or privileges upon a class of persons arbitrarily selected from out of a larger
group who are similarly circumstanced, and between whom and others not so favoured, no
distinction reasonably justifying different treatment exists: it does not give a guarantee of the same
or similar treatment to all persons without reference to the relevant differences. The State has a
wide discretion in the selection of classes amongst persons, things or transactions for purposes of
legislation. Between persons in custody and persons not in custody, distinction has evidently been
made by the Evidence Act in some matters and they are differently treated. Persons who were, at
the time when the statements sought to be proved were made, in custody have been given in some
matters greater protection compared to persons not in custody. Confessional or other statements
made by persons not in custody may be admitted in evidence, unless such statements fall within
Sections 24 and 25 whereas all confessional statements made by persons in custody except those in
the presence of a Magistrate are not provable. This distinction between persons in custody and
persons not in custody, in the context of admissibility of statements made by them concerning the
offence charged cannot be called arbitrary, artificial or evasive: the legislature has made a real
distinction between these two classes, and has enacted distinct rules about admissibility of
statements confessional or otherwise made by them.

12. There is nothing in the Evidence Act which precludes proof of information given by a person not
in custody which relates to the facts thereby discovered: it is by virtue of the ban imposed by
Section 162 of the Cr.P.C., that a statement made to a police officer in the course of the
investigation of an offence under Ch. 14 by a person not in police custody at the time it was made
even if it leads to the discovery of a fact is not provable against him at the trial for that offence. But
the distinction which it may be remembered does not proceed on the same lines as under the
Evidence Act, arising in the matter of admissibility of such statements made to the police officer in
the course of an investigation between persons in custody and persons not in custody, has little
practical significance. When a person not in custody approaches a police officer investigating an
offence and offers to give information leading to the discovery of a fact, having a bearing on the
charge which may be made against him he may appropriately be deemed to have surrendered
himself to the police. Station 46 of the Code of Criminal Procedure does not contemplate any
formality before a person can be said to be taken in custody: submission to the custody by word or
action by a person is sufficient. A person directly giving to a police officer by word of mouth
information which may be used as evidence against him, may be deemed to have submitted himself
to the "custody" of the police officer within the meaning of Section 27 of the Evidence Act: Legal
Remembrancer v. Lalit Mohan Singh, ILR 49 Cal 167, Santokhi Beldar. v. Emperor, ILR 12
Pat 241. Exceptional cases may certainly be imagined in which a person may give information
without presenting himself before a police officer who is investigating an offence. For instance, he
may write a letter and give such information or may send a telephonic or other message to the
police officer. But in considering whether a statute is unconstitutional on the ground that the law has
given equal treatment to all persons similarly circumstanced, it must be remembered that the
legislature has to deal with practical problems: the question is not to be judged by merely
enumerating other theoretically possible situations to which the statute might have been but is not
applied. As has often been said in considering whether there has been a denial of the equal
protection of the laws, a doctrinaire approach is to be avoided. A person who has committed an
offence, but who is not in custody, normally would not without surrendering himself to the police
give information voluntarily to a police officer investigating the commission of that offence leading to
the discovery of material evidence supporting a charge against him for the commission of the
offence. The Parliament enacts laws to deal with practical problems which are likely to arise in the
affairs of men. Theoretical possibility of an offender not in custody because the police officer
investigating the offence has not been able to get at any evidence against him giving information to
the police officer, without surrendering himself to the police which may lead to the discovery of an
important fact by the police, cannot be ruled out; but such an occurrence would indeed be rare. Our
attention has not been invited to any case in which it was even alleged that information leading to
the discovery of a fact which may be used in evidence against a person was given by him to a police
officer in the course of investigation without such person having surrendered himself. Cases like
Deonandan Dusadh v. Kind Emperor, ILR 7 Pat 411 : ILR 12 Pat 241 , Durlav Namasudra v.
Emperor, ILR 59 Cal 1040, In re Mottai Thevar, AIR 1952 Mad 586, In re Peria Guruswami, ILR
(1942) Mad 77, Bharosa Ramdayal v. Emperor, ILR (1940) Nag 679. and Jalla v. Emperor,
AIR 1931 Lah 278 and others to which our attention was invited are all cases in which the accused
persons who made statements leading to discovery of facts were either in the actual custody of
police officers or had surrendered themselves to the police at the time of or before making the
statements attributed to them, and do not illustrate the existence of a real and substantial class of
persons not in custody giving information to police officers in the course of investigation leading to
discovery of facts which may be used as evidence against those persons.

13. In that premise and considered in the background that "persons in custody" and "persons not in
custody" do not stand on the same footing nor require identical protection, is the mere theoretical
possibility of some degree of inequality of the protection of the laws relating to the admissibility of
evidence between persons in custody and persons not in custody by itself a ground of striking down
a salutary provision of the law of evidence?

14. Article 14 of the Constitution of India is adopted from the last clause of Section 1 of the 14th
Amendment of the Constitution of the United States of America, and it may reasonably be assumed
that our Constituent Assembly when it enshrined the guarantee of equal protection of the laws in our
Constitution, was aware of its content delimited by judicial interpretation in the United States of
America. In considering the authorities of the superior courts in the United States, we would not
therefore be incorporating principles foreign to our Constitution, or be proceeding upon the slippery
ground of apparent similarity of expressions or concepts in an alien jurisprudence developed by a
society whose approach to similar problems on account of historical or other reasons differ from
ours. In Vest Coast Hotel Co. v. Parrish, (1936)300 US 379, in dealing with the content of the
guarantee of the equal protection of the laws, Hughes C. J., observed at p. 400:-

"This court has frequently held that the legislative authority, acting within its proper field, is
not bound to extend its regulation to all cases which it might possibly reach. The Legislature
'is free to recognise degree of harm and it may confine its restrictions to those classes of
cases where the need is deemed to be clearest.' If 'the law presumably hits the evil where it
is most felt, it is not to be overthrown because there are other instances to which it might
have been applied." There is no 'doctrinaire requirement' that the legislation should be
couched in all embracing terms.

15. Holmes J., in Weaver v. Palmer Bros. Co., (1925)270 US 402, in his dissenting judgment
observed:

"A classification is not to be pronounced arbitrary because it goes on practical grounds and
attacks only those objects that exhibit or foster an evil on a large scale. It is not required to
be mathematically precise and to embrace every case that theoretically is capable of doing
the same harm. 'If the law presumably hits the evil, where it is most felt, it is not to be
 overthrown because there are other instances to which it might have been applied." Miller v.
Wilson, (1914) 236 US 373.

16. Mc. Kenna J., in Heath and Milligan Mfg., Co. v. Worst, (1907)207 US 338, observed :

"Classification must have relation to the purpose the legislature. But logical appropriateness
of the inclusion or exclusion of objects or persons is not required. A classification may not be
merely arbitrary, but necessarily there must be great freedom of discretion, even though it
result in 'ill-advised, unequal, and oppressive legislation'.....Exact wisdom and nice
adaptation of remedies are not required by the 14th Amendment, nor the crudeness nor the
impolicy nor even the injustice of state laws redressed by it."

17. Sections 25 and 26 are manifestly intended to hit at an evil viz., to guard against the danger of
receiving in evidence testimony from tainted sources about statements made by persons accused of
offences. But these sections form part of a statute which codifies the law relating to the relevancy of
evidence and proof of facts in judicial proceedings. The State is as much concerned with punishing
offenders who may be proved guilty of committing of offences as it is concerned with protecting
persons who may be compelled to give confessional statements. If Section 27 renders information
admissible on the ground that the discovery of a fact pursuant to a statement made by a person in a
custody is a guarantee of the truth of the statement made by him, and the legislature has chosen to
make on that ground an exception to the rule prohibiting proof of such statement, that rule is not to
be deemed unconstitutional, because of the possibility of abnormal instances to which the legislature
might have, but has not extended the rule. The principle of admitting evidence of statements made
by a person giving information leading to the discovery of facts which may be used in evidence
against him is manifestly reasonable. The fact that the principle is restricted to persons in custody
will not by itself be a ground for holding that there is an attempted hostile discrimination because
the rule of admissibility of evidence is not extended to a possible, but an uncommon or abnormal
class of cases.

18. Counsel for the defence contended that in any event Deoman was not at the time when he made
the statement attributed to him, accused of any offence and on that account also apart from the
constitutional plea, the statement was not provable. This contention is unsound. As we have already
observed, the expression "accused of any offence" is descriptive of the person against whom
evidence relating to information alleged to be given by him is made provable by Section 27 of the
Evidence Act. It does not predicate a formal accusation against him at the time of making the
statement sought to be proved, as a condition of its applicability.

19. In that view, the High Court was in error in holding that Section 27 of the Evidence Act and
Section 162. Sub-section (2) of the Cr.P.C., in so far as "that section relates to Section 27 of the
Evidence Act" are void as offending Article 14 of the Constitution.

20. The High Court acquitted Deoman on the ground that his statement which led to the discovery of
the gandasa is inadmissible. As we differ from the High Court on that question, we must proceed to
review the evidence in the light of that statement in so far as it distinctly relates to the fact thereby
discovered being admissible.

21. The evidence discloses that Deoman and his uncle, Mahabir, were anxious to dispose of the
property of Sukhdei and of Dulari and Sukhdei obstructed such disposal. In the evening of June 18,
1958, there was an altercation between Sukhdei and Deoman over the proposed disposal of the
property, in the presence of witnesses. Shobhnath and Mahes. At that time, Deoman slapped
Sukhdei and threatened that he would "smash her mouth". In the morning of the June 19, 1958, the
dead body of Sukhdei with several incised injuries caused by a gandasa was found lying in her
courtyard. Deoman was seen in the village on that day early in the morning hurrying towards the
village tank and 'taking a bath', but thereafter he absconded from the village and was not found till
sometime in the afternoon of the 20th. In his examination by the court, he has stated that he had
left Anandadih early in the morning of the 19th June on business and that he was not absconding,
but there is no evidence in support of that plea. The evidence discloses that in the presence of
witnesses, Shobhnath and Raj Bahadur Singh, Deoman waded into the village tank and "fetched the
gandasa" which was lying hidden in the mud at the bottom of the tank and that gundasa was found
by the Serologist on examination to be stained with human blood. The High Court has agreed with
the findings of the Trial Court on this evidence. The evidence that Deoman had in the presence of
the witnesses, Shobhnath and Raj Bahadur Singh offered to point out the gandasa which he said he
had thrown into the tank was accepted by the Trial Court and the High Court has not disagreed with
that view of the Trial Court, though it differed from the Trial Court as to its admissibility. The
evidence relating to the borrowing of the gandasa from witness, Mahesh, in the evening of the 18th
June, 1958, by Deoman has not been accepted by the High Court and according to the settled
practice of this Court, that evidence may be discarded. It was urged that Deoman would not have
murdered Sukhdei, because by murdering her, he stood to gain nothing as the properties which
belonged to Sukhdei could not devolve upon his wife Dulari in the normal course of inheritance. But
the quarrels between Deoman and Sukhdei arose not because the former was claiming the Dulari
was heir presumptive to Sukhdei's estate, but because Sukhdei resisted attempts on Deoman's part
to dispose of the property belonging to her and to Dulari. The evidence that Deoman slapped
Sukhdei and threatened her that he would "smash her face" coupled with the circumstances that on
the morning of the murder of Sukhdei, Deoman absconded from the village after washing himself in
the village tank and after his arrest made a statement in the presence of witnesses that he had
thrown the gandasa in the village tank and produced the same, establishes a strong chain of
circumstances leading to the irresistible inference that Deoman killed Sukhdei early in the morning
of June 19, 1958. The learned trial Judge held on the evidence that Deoman was proved to be the
offender. That conclusion is, in our view, not weakened because the evidence relating to the
borrowing of the gandasa from witness Mahesh in the evening of June 18, 1958, may not be used
against him. The High Court was of the view that the mere fetching of the gandasa from its hiding
place did not establish that Deoman himself had put it in the tank, and an inference could
legitimately be raised that somebody else had placed it in the tank, or that Deoman had seen
someone placing that gandasa in the tank or that someone had told him about the gandasa lying in
the tank. But for reasons already set out the information given by Deoman is provable in so far as it
distinctly relates to the fact thereby discovered: and his statement that he had thrown the gandasa
in the tank is information which distinctly relates to the discovery of the gandasa. Discovery from its
place of hiding, at the instance of Deoman of the gandasa stained with human blood in the light of
the admission by him that he had thrown it in the tank in which it was found therefore acquires
significance, and destroys the theories suggested by the High Court.

22. The quarrel between Deoman and Sukhdei and the threat uttered by him that he would smash
Sukhdei's "mouth" (face) and his absconding immediately after the death of Sukhdei by violence,
lend very strong support to the case for the prosecution. The evidence, it is true, is purely
circumstantial but the facts proved establish a chain which is consistent only with his guilt and not
with his innocence. In our opinion therefore the Sessions Judge was right in his view that Deoman
had caused the death of Sukhdei by striking her with the gandasa produced before the Court.

23. On the evidence or the medical officer who examined the dead body of Sukhdei, there can be no
doubt that the offence committed by the accused Deoman is one of murder. The trial Judge
convicted the accused of the offence of murder and in our view, he was right in so doing. Counsel for
Deoman has contended that in any event, the sentence of death should not be imposed upon his
client. But the offence appears to have been brutal, conceived and executed with deliberation and
not in a moment of passion, upon a defenceless old woman who was the benefactress of his wife.
The assault with a dangerous weapon was made only because the unfortunate victim did not agree
to the sale of property belonging to her and to her foster child. Having carefully considered the
circumstances in which the offence is proved to have been committed, we do not think that any case
is made out for not restoring the order imposing the death sentence. We accordingly set aside the
order passed by the High Court and restore the order passed by the Court of Session.

24. It may be observed that the sentence of death cannot be executed unless it is confirmed by the
High Court. The High Court has not confirmed the sentence, but in exercise of our powers under
Article 136 of the Constitution, we may pass the same order of confirmation of sentence as the High
Court is, by the Code of Criminal Procedure, competent to pass. We accordingly confirm the
sentence of death.

25. K. Subba Rao, J. : I have had the advantage of perusing the judgment of my learned brother,
Shah, J. I regret my inability to agree with his reasoning or conclusion in respect of the application
of Article 14 of the Constitution to the facts of the case. The facts have been fully stated in the
judgment of my learned brother and they need not be restated here.

26. Article 14 of the Constitution reads:

"The State shall not deny to any person equality before the law or equal protection of the
laws within the territories of India."

Das C. J., in Basheshar Nath v. Commr. of Income Tax, AIR 1959 SC 149, explains the scope
of the equality clause in the following terms:

"The underlying object of this Article is undoubtedly to secure to all persons, citizens or non-
citizens, the equality of status and of opportunity referred to in the glorious preamble of our
Constitution. It combines the English doctrine of the rule of law and the equal protection
clause of the 14th Amendment to the American Federal Constitution which enjoins that no
State shall 'deny to any person within its jurisdiction the equal protection of the laws'. There
can, therefore, be no doubt or dispute that this Article is founded on a sound public policy
recognised and valued in all civilised States. ... .. ...... The command of the Article is directed
to the State and the reality of the obligation thus imposed on the State is the measure of the
fundamental right which every person within the territory of India is to enjoy."

This subject has been so frequently and recently before this Court as not to require an extensive
consideration. The doctrine of equality may be briefly stated as follows: All persons are equal before
the law is fundamental of every civilised constitution. Equality before law is a negative concept;
equal protection of laws is a positive one. The former declares that every one is equal before law,
that no one can claim special privileges and that all classes are equally subjected to the ordinary law
of the land; the latter postulates an equal protection of all like in the same situation and under like
circumstances. No discrimination can be made either in the privileges conferred or in the liabilities
imposed. But these propositions conceived in the interests of the public, if logically stretched too far,
may not achieve the high purpose behind them. In a society of unequal basic structure, it is well
nigh impossible to make laws suitable in their application to all the persons alike. So, a reasonable
classification is not only permitted but is necessary if society should progress. But such a
classification cannot be arbitrary but must be based upon differences pertinent to the subject in
respect of and the purpose for which it is made.

27. Das, C. J., in Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar, 1959 SCR 279, culled
out the rules of construction of the equality clause in the context of the principle of classification
from the various decisions of this Court and those of the Supreme Courtof the United States of
America and restated the settled law in the form of the following propositions at pp. 297-298 (of
SCR): (at pp. 547-548 of AIR):

"(a) that a law may be constitutional even though it relates to a single individual if, on
account of some special circumstances or reasons applicable to him and not applicable to
others, that single individual may be treated as a class by himself;

(b) that there is always a presumption in favour of the constitutionality of an enactment and
the burden is upon him who attacks it to show that there has been a clear transgression of
the constitutional principles;

(c) that it must be presumed that the legislature understands and correctly appreciates the
need of its own people, that its laws are directed to problems made manifest by experience
and that its discriminations are based on adequate grounds;

(d) that the legislature is free to recognise degrees of harm and may confine its restrictions
to those cases where the need is deemed to be the clearest;

(e) that in order to sustain the presumption of constitutionality the court may take into
consideration matters of common knowledge, matters of common report, the history of the
times and may assumed every state of facts which can be conceived existing at the time of
legislation; and

(f) that while good faith and knowledge of the existing conditions on the part of a legislature
are to be presumed, if there is nothing on the fact of the law or the surrounding
circumstances brought to the notice of the court on which the classification may reasonably
be regarded as based, the presumption of constitutionality cannot be carried to the extent of
always holding that there must be some undisclosed and unknown reasons for subjecting
certain individuals or corporations to hostile or discriminating legislation".

28. In view of this clear statement of law, it would be unnecessary to cover the ground over again
except to add the following caution administered by Brewer, J., in Gulf Colorado and Sania Fe
Rly., Co. v. Ellis, (1897) 165 US 150 :

"While good faith and a knowledge of existing conditions on the part of a Legislature is to be
presumed, yet to carry that presumption to the extent of always holding that there must be
some undisclosed and unknown reason for subjecting certain individuals or Corporations to
hostile and discriminating Legislation is to make the protecting clauses of the 14th
Amendment a mere rope of sand, in no manner restraining state action."

29. It will be seen from the said rules that a weightage is given to the State as against an individual
and a heavy burden is thrown on the latter to establish his fundamental right. If the caution
administered by Brewer, J., in (1897) 165 US 150 and restated by Das, C. J., in 1959 SCR 279 were
to be ignored, the burden upon a citizen would be an impossible one, the rules intended to elucidate
the doctrine of equality would tend to exhaust the right itself, and, in the words of Brewer, J., the
said concept becomes "a mere rope of sand, in no manner restraining state action". While the court
may be justified to assume certain facts to sustain a reasonable classification, it is not permissible to
rest its decision on some undisclosed and unknown reasons; in that event, a Court would not be
enforcing a fundamental right but would be finding out some excuse to support the infringement of
that right.

30. It will be convenient at the outset to refer to the relevant sections. Under Section 25 of the
Evidence Act, no confession made to a police-officer shall be proved as against a person accused of
an offence. Section 26 says that no confession made by any person while he is in the custody of a
police-officer, unless it is made in the immediate presence of a magistrate, shall be proved as
against such person. Section 27, which is in the form of a proviso, enacts that "when any fact is
deposed to as discovered in consequence of information received from a person accused of any
offence, in the custody of a police-officer, so much of such information, whether it amounts to a
confession or not, as relates distinctly to the fact thereby discovered, may be proved." Section 162
of the Code of Criminal Procedure lays down that no statement made by any person to a police-
officer in the course of an investigation shall be used for any purpose at any inquiry or trial in
respect of any offence under investigation at the time when such statement was made. Sub-section
(2) of Section 162 of the said Code which was amended by Section 2 of the Code of Criminal
Procedure (Second Amendment) Act, 1941 (Act XV of 1941) provides that the said section shall not
affect the provisions of Section 27 of the Evidence Act.

31. A combined effect of the said provisions relevant to the present enquiry may be stated thus: (1)
No confession made to a police-officer by an accused can be proved against him; (2) no statement
made by any person to a police-officer during investigation can be used for any purpose at any
inquiry or trial; (3) a confession made by any person while he is in the police custody to
whomsoever made, such as a fellow-prisoner, a doctor or a visitor, can be proved against him if it is
made in the presence of a Magistrate; and (4) if a person accused of an offence is in the custody of
a police-officer, any information given by him whether it is a statement or a confession, so much of
it as relates distinctly to the fact thereby discovered may be proved. Shortly stated, the section
divided the accused making confessions or statements before the police into two groups: (i) accused
not in custody of the police, and (ii) accused who are in the custody of the police. In the case of the
former there is a general bar against the admissibility of any confessions or statements made by
them from being used as evidence against them; in the case of the latter, so much of such
statements or confessions as relates distinctly to the fact thereby discovered is made admissible.

32. Shorn of the verbiage, let us look as the result brought about the combined application of
Section 27 of the Evidence Act and Section 162 of the Code of Criminal Procedure. A and B stabbed
C with knives and hid them in a specified place. The evidence against both of them is circumstantial.
One of the pieces of circumstantial evidence is that both of them gave information to the police that
each of them stabbed C with a knife and hid it in the said place. They showed to the police the place
where they had hidden the knives and brought them out and handed them over to the police; and
both the knives were stained with human blood. Excluding this piece of evidence, other pieces of
circumstantial evidence do not form a complete chain. If it was excluded, both the accused would be
acquitted; if included, both of them would be convicted for murder. But A, when he gave the
information was in the custody of police, but B was not so. The result is that one the same evidence
A would be convicted for murder but B would be acquitted: one would lose his life or liberty and the
other would be set free. This illustration establishes that prima facie that the provisions of Section
27 of the Evidence Act accord unequal and uneven treatment to persons under like circumstances.

33. Learned Additional Solicitor-General tries to efface this apparent vice in the sections by
attempting to forge a reasonable basis to sustain the different treatment given to the two groups of
accused. His argument may be summarized thus: Accused are put in two categories, namely (1)
accused in custody; and (2) accused not in custody. There are intelligible differentia between these
two categories which have reasonable relation to the objects sought to be achieved by the
legislature in enacting the said provisions. The legislature has two objects, viz., (i) to make available
to the Court important evidence in the nature of confessions to enable it to ascertain the truth; and
(ii) to protect the accused in the interest of justice against coercive methods that may be adopted by
the police. The differences between the two categories relating to the objects sought to be achieved
are the following : (a) while extra-judicial confessions in the case of an accused not in custody are
admissible in evidence, they are excluded from evidence in the case of accused in custody: (b)
compared with the number of accused in the custody of the police who make confessions or give
information to them, the number of accused not in custody giving such information or making
confessions would be insignificant, (c) in the case of confession to a police-officer by an accused not
in custody, no caution is given to him before the confession is recorded, whereas in the case of an
accused in custody, the factum of custody and puts him on his guard; and (d) protection by the
imposition of a condition for the admissibility of confessions is necessary in the case of accused in
custody; whereas no such protection for accused not in custody is called for. Because of these
differences between the two categories, the argument proceeds, the classification made by the
legislature is justified and takes the present case out of the operation of Article 14 of the
Constitution.

34. I shall now analyse each of the alleged differences between the two categories of accused to
ascertain whether they afford a reasonable and factual basis for the classification.

35 Re. (a): Whether the accused is in custody or not in custody, the prosecution is not prevented
from collecting the necessary evidence to bring home the guilt to the accused. Indeed, as it often
happens if the accused is not in custody and if he happens to be an influential person there is a
greater likelihood of his retarding and obstructing the progress of investigation and the collection of
evidence. Nor all the extra-judicial confessions are excluded during the trail after a person is put in
custody. The extra-judicial confession made by an accused before he is arrested or after he is
released on bail is certainly relevant evidence to the case. Even after a person is taken into custody
by a police-officer, nothing prevents that person from making a confession to a third-party and the
only limitation imposed by Section 26 of the Evidence Act is that he shall make it only in the
presence of a Magistrate. The confession made before a Magistrate after compliance with all the
formalities prescribed has certainly greater probative force than that made before outsiders. On the
other hand, though extra-judicial confessions are relevant evidence, they are received by Courts
with great caution. That apart, it is a pure surmise that the legislature should have thought that the
confession of an accused in custody to a police-officer with a condition attached would be a
substitute for an extra-judicial confession that he might have made if he was free. Broadly speaking,
therefore, there is no justification for the suggestion that the prosecution is in a between position in
the matter of establishing its case when the accused is out of custody than when he is in custody.
Moreover, this circumstance has not been relied upon by the State in the High Court but is relied
upon for the first time by learned counsel during his arguments. In my view, there is no practical
difference at all in the matter of collecting evidence between the two categories of persons and that
the alleged difference cannot reasonably sustain a classification.

36. Re. (b): The second circumstance relied upon by the learned counsel leads us to realms of fancy
and imagination. It is said that the number of persons not in custody making confessions to the
police is insignificant compared with those in custody and, therefore, the legislature may have left
that category out of consideration. We are asked to draw from our experience and accept the said
argument. No such basis was suggested in the High Court. The constitutional validity has to be
tested on the facts existing at the time the section or its predecessor was enacted but not on the
consequences flowing from its operation. When a statement made by accused not in the custody of
police is statutorily made inadmissible in evidence, how can it be expected that many such instances
will fall within the ken of Courts. If the ban be removed for a short time it will be realized how many
such instances will be pouring in the same way as confessions of admissible type have become the
common feature of almost every criminal case involving grave offence. That apart, it is also not
correct to state that such confessions are not brought to the notice of Courts.

37. AIR 1952 Mad 586 deals with a case where the accused immediately after killing the deceased
goes to the police station and makes a clear breast of the offence. In ILR 59 Cal 1040 the
information received from an accused not in the custody of a police-officer which led to the discovery
of the dead-body was sought to be put in evidence. Before a division bench of the Patna High Court
in ILR 7 Pat 411 the information given to the Sub-Inspector of Police by a husband who had fatally
assaulted his wife which led to the discovery of the corpse of the woman was sought to be admitted
in evidence. In ILR 12 Pat 241 a Full Bench of the Patna High Court was considering whether one of
the pieces of evidence which led to the discovery of blood-stained knife and other articles by the
Sub-Inspector of Police at the instance of the accused was admissible against the informant. A
statement made by an accused to a responsible police-officer voluntarily confessing that he had
committed an act of crime was considered by a division bench of the Nagpur High Court in AIR 1941
Nag 86. The Lahore High Court in AIR 1931 Lah 278 had before it a statement made by an accused
to the police which led to the discovery of the dead-body. AIR 1941 Mad 765 is a decision of a
division bench of the Madras High Court wherein the question of admissibility of a confession made
by a person to a police-officer before he came into his custody was considered.

38. I have cited the cases not for considering the validity of the questions decided therein, namely,
when a person can be described as an accused and when he can be considered to have come into
the custody of the police, but only to controvert the argument that such confessions are in practice
non-existent. I have given only the representative decisions of various High Courts and I am sure if
a research is made further instances will be forthcoming.

39. The historical background of Section 27 also does not warrant any assumption that the
legislature thought that cases of persons not in custody of a police-officer making confessions before
him would be very few and, therefore, need not be provided for. Sections 25, 26 and 27 of the
Evidence Act correspond to Sections 148, 149 and 150 of the Code of Criminal Procedure of 1861.
Section 148 of the Code prohibited the use as evidence of confessions or admissions of guilt made to
a police-officer. Section 149 provided:

"No confession or admission of guilt made by any person while he is in the custody of a
police-officer unless it be made in the immediate presence of a Magistrate shall be used as
evidence against such person."

Section 150 stated :

"When any fact is deposed to by a police-officer as discovered by him in consequence of

information received from a person accused of any offence, so much of such information,
whether it amounts to a confession or admission of guilt or not, as relates distinctly to the
fact discovered by it, may be received in evidence."

Section 150 of the Code of 1861 was amended by Act VII of 1869 and the amended section read as
follows:

"Provided that when any fact is disposed to in evidence as discovered in consequence of

information received from a person accused of any offence, or in the custody of a police-
officer, so much of such information, whether it amounts to a confession or admission of guilt
or not, as relates distinctly to the fact thereby discovered may be received in evidence."
40. It would be seen from the foregoing sections that there was an absolute bar against the
admissibility of confession or admissions made by any person to a police-officer and that the said
bar was partially lifted in a case where such information, whether it amounted to a confession or
admission of guilt, related distinctly to the fact discovered. The proviso introduced by Act VIII of
1869 was in pari materia with the provisions of Section 27 of the Evidence Act with the difference
that in the earlier section the phrase "a person accused of any offence" and the phrase "in the
custody of a police-officer" were connected by the disjunctive "or". The result was that no
discrimination was made between a person in custody or out of custody making a confession to a
police-officer. Section 150 of the Code before amendment also, though it was couched in different
terms, was similar in effect. It follows that, at any rate till the year 1872 the intention of the
legislature was to provide for all confessions made by persons to the police whether in custody of the
police or not. Can it be said that in 1872 the legislature excluded confessions or admissions made by
a person not in custody to a police-officer from the operation of Section 27 of the Evidence Act on
the ground that such cases would be rare? Nothing has been placed before us to indicate the
reasons for the omission of the word "or" in Section 27 of the Evidence Act. If that be intention of
the legislature, why did it enact Section 25 of the Evidence Act imposing a general ban on the
admissibility of all confessions made by accused to a police-officer? Section 27 alone would have
served its purpose. |On the other hand, Section 25 in express terms provides for the genus i.e.,
accused in general, and Section 27 provides for the species out of the genus, namely, accused who
are in custody. A general ban is imposed by one section and it is lifted only in favour of a section of
accused of the same class. The omission appears to be rather by accident than by design. In the
circumstances it is not right to seculate and hold that the legislature consciously excluded from the
operation of Section 27 of the Act accused not in custody on the ground that they were a few in
number.

41. During the course of the arguments of the learned counsel for the respondent, to the question
put from the Bench whether an accused who makes a confession of his guilt to a police-officer would
not by the act of confession submit himself to his custody, the learned counsel answered that the
finding of the High Court was in his favour, namely, that such a confession would not bring about
that result. Learned Addl. Solicitor-General in his reply pursued this line of thought and contended
that in that event all possible cases of confession to a police-officer would be covered by Section 27
of the Evidence. Act. The governing section is Section 46 of the Code of Criminal Procedure, which
reads:

"(1) In making the arrest the police officer or other person making the same shall actually
touch or confine the body of the person to be arrested, unless there be a submission to the
custody by word or action."

..................................................................

It has been held in some decisions that "when a person states that he has done certain acts which
amount to an offence he accuses himself of committing the offence, and if he makes the statement
to a police officer, as such, he submits to the custody of the officer within the meaning of Clause (1)
of this section, and is then in the custody of a police-officer within the meaning of Section 27 of the
Evidence Act." But other cases took a contrary view. It is not possible to state as a proposition of law
what words or what kind of action bring about submission to custody; that can only be decided on
the facts of each case. It may depend upon the nature of the information, the circumstances
under ,the manner in, and the object for, which it is made, the attitude of the police-officer
concerned and such other facts. It is not, therefore, possible to predicate that every confession of
guilt or statement made to a police-officer automatically brings him into his custody. I find it very
difficult to hold that in fact that there would not be any appreciable number of accused making
confessions or statements outside the custody of a police-officer. Giving full credit to all the
suggestions thrown out during the argument, the hard core of the matter remains, namely, that the
same class i.e., accused making confessions to a police-officer, is divided into two groups - one may
be larger than the other - on the basis of a distinction without difference.

42. Let me now consider whether there is any textual or decided authority in support of the
contention that the legislature can exclude from the operation of Section 27 accused not in custody
on the ground that they are a few in number.

43. In support of this contention learned counsel for the appellant cited a decision of this Court and
some decisions of the Supreme Court of the United States of America. The decision of this Court
relied upon is that in Sakhawat Ali v. State of Orissa, 1955-1 SCR 1004. In that case, Bhagwati,
J., observed at p 1010 (of SCR): (at p. 170 of AIR) thus:

"The simple answer to this contention is that legislation enacted for the achievement of a
particular object or purpose need not be all embracing. It is for the Legislature to determine
what categories it would embrace within the scope of legislation and merely because certain
categories which would stand on the same footing as those which are covered by the
legislation are left out would not render legislation which has been enacted in any manner
discriminatory and violative of the fundamental right guaranteed by Article 14 of the
Constitution."
These observations, though at first sight appear to support the appellant, if understood in the
context of the facts and the points decided in that case, would not in any way help him. By the
provisions of Section 16 (1) (x) of the Orissa Municipal Act, 1950, a paid legal practitioner on behalf
of or against the Municipality is disqualified for election to a seat in such Municipality. One of the
questions raised was that the said section violates the fundamental right of the appellant under
Article 14 of the Constitution. The basis of that argument was that the classification made between
legal practitioners who are employed on payment on behalf of the Municipality or who act against
the Municipality and those legal practitioners who are not so employed was not reasonable.
Bhagwati, J., speaking for the Court, stated the well-settled principles of classification and gave
reasons justifying the classification in the context of the object sought to be achieved thereby. But it
was further argued in that case that the legislature should have also disqualified other persons, like
clients, as even in their case there would be conflict between interest and duty. Repelling that
contention the learned Judge made the aforesaid observations. The said observations could only
mean that, if there was intelligible differentia between the species carved out of the genus for the
purpose of legislation, in the context of the object sought to be achieved, the mere fact that the
legislation could have been extended to some other persons would not make the legislation
constitutionally void. On the other hand if the passage be construed in the manner suggested by
learned counsel for the appellant, it would be destructive of not only the principle of classification but
also of the doctrine of equality.

44. Nor do the American decisions lay down any such wide proposition. In John A. Watson v. State
of Maryland, (1909)54 Law Ed 987 the constitutional validity of Maryland Code of 1904 which
made it a misdemeanour for any doctor to practise medicine without registration, was challenged.
The said Code exempted from its operation physicians who were then practising in that State and
had so practised prior to January 1, 1898, and could prove that within one year of the said date they
had treated at least twelve persons in their professional capacity. The Supreme Court of America
affirmed the validity of the provision. The reason for the classification is stated at p. 989 thus:

"Dealing as its followers do, with the lives and health of the people, and requiring for its
successful practice general education and technical skill, as well as good, character, it is
obviously one of those vocations where the power of the state may be exerted to see that
only properly qualified persons shall undertake its responsible and difficult duties".

Then the learned Judge proceeded to state:

"Such exception proceeds upon the theory that those who have acceptably followed the
profession in the community for a period of years may be assumed to have the qualifications
which others are required to manifest as a result of an examination before a board of medical
experts".

The classification is, therefore, not sustained upon any mathematical calculation but upon the
circumstance that the groups excluded were experienced doctors whereas those included were not.
In Jeffrey Manufacturing Co. v. Harry O. Blagg (1914)59 Law, Ed 364 the Supreme Court of
America justified a classification under Ohio Workmen's Compensation Act which made a distinction
between employers of shops with five or more employees and employers of shops having a lesser
number of employees. Employers of the former class had to pay certain premiums for the purpose of
establishing a fund to provide for compensation payable under the said Act. If an employer did not
pay the premium, he would be deprived of certain defences in a suit filed by his employee for
compensation. It was contended that this discrimination offended the provisions of the 14th
Amendment of the Constitution. Day, J., sustained the classification on the ground that the
negligence of a fellow servant is more likely to be a cause of injury in the large establishments,
employing many in their service than in smaller ones. It was also conceded that the State legislature
was not guilty of arbitrary classification. It is, therefore, manifest that the classification was not
based upon numerical strength but on the circumstance that the negligence of a fellow servant is
more likely to happen in the case of larger establishments. The passage at p. 369 must be
understood in the light of the facts and the concession made in that case. The passage runs thus:

"........having regard to local conditions, of which they (State Legislature) must be presumed
to have better knowledge than we can have, such regulation covered practically the whole
field which needed it, and embraced all the establishments of the state of any size. And that
those so small as to employ only four or less might be regarded as a negligible quantity, and
need not be assessed to make up the guaranty fund or covered by the methods of
compensation which are provided, by this legislation."

The passage presupposes the existence of a classification and cannot, in my view, support the
argument that an arbitrary classification shall be sustained on the ground that the legislature in its
wisdom covered the field where the protection, in its view was needed. Nor the observations of
MeKenna, J., in St. Louis, Iron Mountain and Southern Rly., Co v. State of Arkansas,
(1915)60 Law Ed. 776, advance the case of the appellant. The learned Judge says at p. 779 thus:
 "we have recognised the impossibility of legislation being all-comprehensive, and that there
may be practical groupings of objects which will as a whole fairly present a class of itself,
although there may be exceptions in which the evil aimed at is deemed not so flagrant."

In that case the State legislature made an exemption in favour of railways less than 100 miles in
length from the operation of the statute forbidding railway companies with yards or terminals in
cities of the state to conduct switching operations across public crossings in cities of the first or
second class with a switching crew of less than one engineer, a fireman, a foreman, and three
helpers, McKenna, J., sustained its constitutional validity holding that the classification was not
arbitrary. The observations cited do not in any way detract from the well-established doctrine of
classification, but only lay down that the validity of a classification must be judged not on abstract
theories but on practical considerations. Where the legislature prohibited the use of shoddy, new or
old, even when sterilized, in the manufacture of comfortables for beds, the Supreme Court of
America held in Weaver v. Palmer Bros., Co. (1925)70 Law Ed. 654, that the prohibition was
not reasonable. It was held that constitutional guarantees may not be made yield to mere
convenience. Holmes, J., his dissenting judgment observed at p. 659 thus:

"A classification is not to be pronounced arbitrary because it goes on practical grounds and
attacks only those objects that exhibit of foster an evil on a large scale. It is not required to
be mathematically precise and to embrace every case that theoretically is capable of doing
the same harm."

Even this dissenting opinion says nothing more than that, in ascertaining the reasonableness of a
classification; it shall be tested on practical grounds and not on theoretical considerations. In (1936)
81 Law Ed. 703, a state statute authorised the fixing of reasonable minimum wages for women and
minors by state authority, but did not extend it to men. In that context, Hughes, C. J., observed at
p. 713 thus:

"This Court has frequently held that the legislative authority, acting within its proper field, is
not bound to extend its regulation to all cases which it might possibly reach."

These observation assume a valid classification and on that basis state that a legislation is not bound
to cover all which it might possibly reach.

45. A neat summary of the American law on the subject is given in "the Constitution of the United
States of America", prepared by the Legislative Reference Service, Library of Congress (1952 Edn.)
at p. 1146 thus:

"The legislature is free to recognise degrees of harm; a law which hits the evil where it is
most felt will not be overthrown because there are other instances to which it might have
been applied. The State may do what it can to prevent what is deemed an evil and stop short
of those cases in which the harm to the few concerned is thought less important than the
harm to the public that would ensue if the rules laid down were made mathematically exact.
Exceptions of specified classes will not render the law unconstitutional unless there is no fair
reason for the law that would not equally required its extension to the excepted classes."

These observations do not cut across the doctrine of classification, but only afford a practical basis to
sustain it. The prevalence of an evil in one field loudly calling for urgent mitigation may distinguish it
from other field where the evil is incipient. So too, the deleterious effect of a law on the public, if it is
extended to the excluded group, marks it off from the included group. Different combination of facts
with otherwise apparently identical groups may so accentuate the difference as to sustain a
classification. But if the argument of the learned counsel, namely, that the legislature can in its
discretion exclude some and include others from the operation of the Act in spite of their identical
characteristics on the ground only of numbers be accepted, it will be destructive of the doctrine of
equality itself.

46. Therefore, the said and similar decisions do not justify classification on the basis of numbers or
enable the legislature to include the many in and exclude the few from the operation of law without
there being an intelligible differentia between them. Nor do they support the broad contention that a
legislature in its absolute discretion may exclude some instances of identical characteristics from an
Act on alleged practical considerations. Even to exclude one arbitrarily out of a class is to offend
against Article 14 of the Constitution.

47. Let us now apply the said principles to the facts of the present case. Assuming for a moment
that the ratio between the accused in the context of confessions is 1000 in custody and 5 out of
custody, how could that be conceivably an intelligible ground for classification? Assuming again that
the legislature thought - such an exemption is unwarranted - that such cases would not arise at all
and need not be provided for, could that be a reasonable assumption having regard to the historical
background of Section 27 of the Evidence Act and factual existence of such instances disclosed by
decisions cited supra? As I have already stated that such an exemption is an unwarranted flight into
the realms of imagination in the teeth of expressed caution administered by Das, C. J., in Ram
Krishna Dalmia's case, and by Brewer, J., in (1897) 165 US 150.

48. Re (c): Nor can I find any intelligible differentia in the caution alleged to be implied by accused
being taken into custody. The argument is that under Section 163 of the Cr.P.C.,

"no police officer or other person shall prevent, by any caution or otherwise, any person from
making in the course of any investigation under this Chapter any statement which he may be
disposed to make of his own free will,"

and as an accused is allowed to make any statement he chooses without his being placed on guard
by timely caution, no statement made by him is permitted to be proved; whereas by the accused
being taken into custody, the argument proceeds, by the said act itself the accused gets sufficient
warning that his statement may be used in evidence and that this difference affords a sufficient basis
for the classification. I am not satisfied that taking into custody amounts to a statutory or implied
caution. If that be the basis for the distinction, there is no justification that an accused once taken
into custody but later released on bail should not be brought in within the meaning of Section 27 of
the Evidence Act.

49. Re. (d): The fourth item of differentia furnishes an ironical commentary on the argument
advanced. The contention is that an accused in custody needs protection in the matter of his
confession and therefore a condition is imposed before the confession is made admissible. There is
an obvious fallacy underlying this argument. The classification is made between accused not in
custody making a confession and accused in custody making a confession to a police officer: the
former is inadmissible and the latter is admissible subject to a condition. The point raised is why
should there be this discrimination between these two categories of accused? It is no answer to this
question to point out that in the case of an accused in custody a condition has been imposed on the
admissibility of his confession. The condition imposed may be to some extent affording a guarantee
for the truth of the statement, but it does not efface the clear distinction made between the same
class of confessions. The vice lies not in the condition imposed, but in the distinction made between
these two in the matter of admissibility of a confession. The distinction can be wiped out only when
confessions made by all accused are made admissible subject to the protective condition imposed.

50. Not only the alleged differentia are not intelligible or germane to the object sought to be
achieved,. The basis for the distinction is also extremely arbitrary. There is no acceptable reason
why a confession made by an accused in custody to a police officer is to be admitted when that
made by an accused not in custody has to be rejected. The condition imposed in the case of the
former may, to some extent, soften the rigour of the rule, but it is irrelevant in considering the
question of reasonableness of the classification. Rankin, J., in ILR 59 Cal 1040, in a strongly worded
passage criticised the anomaly underlying Section 27 thus at p. 1045 (of ILR Cal): at p. 300 of AIR):

".....in a case like the present where the confession was made to the police, if the man was at
liberty at the time he was speaking, what he said should not be admitted in evidence even
though something was discovered as a result of it........It cannot be admitted in evidence,
because the man was not in custody, which of course is thoroughly absurd. There might be
reason in saying that, if an man is in custody, what he may have said cannot be admitted;
but there can be none at all in saying that it is inadmissible in evidence against him because
he is not in custody."

In the present case, the self-same paradox is sought to be supported as affording a reasonable basis
for the classification.

51. The only solution is for the legislature to amend the section suitably and not for this Court to
discover some imaginary ground and sustain the classification. I therefore, hold that Section 27 of
the evidence Act is void as violative of Article 14 of the Constitution.

52. If so, the question is whether there is any scope for interference with the finding of the High
Court. The High Court considered the entire evidence and found the following circumstances to have
been proved in the case:

(a) "that in the evening of June 18,1958, there was an altercation between Sukhdei and
Deoman, accused, over the proposed transfer of property in Anandadih, in the presence of
Shobh Nath (P. W. 5) and Mahesh (P. W. 7), and that in the course of this altercation
Deoman slapped her and threatened that the would smash her mouth";

(b) "that at about dawn on June 19, 1958, the accused was seen by Khusai (P. W. 8)
hurrying towards a tank, and shortly afterwards was seen by Mata Dihal (P. W. 11) actually
bathing in that tank, before it was fully light";
 (c) "that the accused absconded immediately afterwards and was not to be found at
Anandadih on June 19, 1958"; and

(d) "that on June 21, 1958, the accused in the presence of the investigating officer (P. W.
14), Shobh Nath (P. W. 5) and Raj Bahadur Singh (P. W. 6) stated that he could hand over
the 'gandasa' which he had thrown into a tank; that he was then taken to that tank and in
the presence of the same witnesses waded in and fetched the 'gandasa' Ex. 1 out of the
water; and that this 'gandasa' was found by the Chemical Examiner and serologist to be
stained with human blood".

The High Court held that the said circumstances are by no means sufficient to prove the guilt of the
accused-appellant beyond reasonable doubt. On that finding, the High Court gave the benefit of
doubt to the accused and acquitted him of the offence. The finding is purely one of fact and there
are no exceptional circumstances in the case to disturb the same.

53. In the result, the appeal fails and is dismissed.

54. M. Hidayatullah, J. : The facts of the case have been stated in full by Shah, J. in the judgment
which he has delivered, and which I had the advantage of reading. I have also had the advantage of
reading the judgment of Subba Rao. J. I respectfully agree generally with the conclusions and the
reasons, therefor, of Shah, J. I wish however, to make a few observations.

55. Section 27 of the Evidence Act in the Chapter on admissions and forms part of a group of
sections which are numbered 24 to 30, and these sections deal with confessions of persons accused
of an offence. They have to be read with Sections 46 and 161-164 of the code of Criminal Procedure.

56. Section 24 makes a confession irrelevant if the making of it appears to the Court to have been
caused by inducement, threat or promise having reference to the charge against the accused
person, from a person in authority and by which the accused person hopes that he would gain some
advantage or avoid some evil of a temporal nature in reference to the proceedings against him.
Section 25 makes a confession to a police officer inadmissible against a person accused of any
offence. Section 26 says that no confession made by a person whilst he is in the custody of a police
officer shall be proved unless it be made in the immediate presence of a Magistrate, Section 27 then
provides:

"Provided that, when any fact is deposed to as discovered in consequence of information

received from a person accused of any offence, in the custody of a police officer, so much of
such information, whether it amounts to a confession or not, as relates distinctly to the fact
thereby discovered, may be proved."

57. Section 161 of the Code of the Criminal Procedure empowers a police officer of stated rank to
examine orally any person supposed to be acquainted with the facts and circumstances of the case.
Such person is bound to answer all questions relating to the case but not questions which would
have a tendency to expose him to a criminal charge or to a penalty or forfeiture. The police officer
may make a written record of the statement. Section 163 of the Code then lays down the rule that
no police officer or other person in authority shall offer or make, or cause to be offered or made, any
inducement, threat or promise as is mentioned in the Evidence Act, s. 24, and further that no police
officer or other person shall prevent, by any caution or otherwise, any person from making in the
course of any investigation any statement which he may be disposed to make of his own free will.
Section 162 of the Code then makes statements reduced into writing inadmissible for any purpose
except those indicated, but leaves the door open for the operation of s. 27 of the Evidence Act.
Section 164 confers the powers to record confessions, of Magistrates of stated rank during
investigation or at any time afterwards before the commencement of the enquiry or trial. Such
confessions are to be recorded after due caution to the person making the confession and only if
there is reason to believe and only if there is reason to believe that they are voluntary. Section 46 of
the Code provides that in making an arrest the police officer or other person making the same shall
actually touch or confine the body of the person to be arrested, unless there be a submission to the
custody by word or action.

58. When an offence is committed and investigation starts, the police have two objects in view. The
first is the collection of information, and the second is the finding of the offender. In this process,
the police question a number of persons, some of whom may be only witnesses and some who may
later figure as the person or persons charged. While questioning such persons, the police must leave
the persons free to make whatever statements they wish to make. There are two checks at this
stage. What the witnesses or the suspects say is not to be used at the trial, and a person cannot be
compelled to answer a question,. which answer may incriminate him. It is to be noticed that at the
stage though the police may have suspicion against the offender, there is no difference between him
and other witnesses, who are questioned. Those who turn out to be witnesses and not accused are
expected to give evidence at the trial and their former statements are not evidence. In so far as
those ultimately charged are concerned, they cannot be witnesses, save exceptionally and their
statements are barred under Section 162 of the Code and their confessions, under Section 24 of the
Evidence Act. Their confessions are only relevant and admissible, if they are recorded as laid down in
Section 164 of the Cr.P.C., after due caution by the Magistrate and it is made clear that they are
voluntary. These rules are based upon the maxim: Nemo tenetur prodere seipsum (no one should be
compelled to incriminate himself). In an address to Police Constables on their duties, Hawkins, J.,
(later, Lord Brampton) observed:

"Neither Judge, magistrate nor juryman, can interrogate an accused person....or required him
to answer the questions tending to incriminate himself. Much less, then ought a constable to
do so, whose duty as regards that person is simply to arrest and detain him in safe custody."

59. In English law, the statement of an accused person can be tendered in evidence, provided he
has been cautioned and the exact words of the accused are deposed to. Says Lord Brampton:

"there is, however, no objection to a constable listening to any mere voluntary statement
which a prisoner desires to make, and repeating such statement in evidence, nor is there any
objection to his repeating in evidence any conversation he may have heard between the
prisoner and any other person. But he ought not, by anything he says or does to invite or
encourage an accused person to make any statement, without first cautioning him, that he is
not bound to say anything tending to criminate himself, and that anything he says may be
used against him. Perhaps the best maxim with respect to an accused person is 'Keep your
ears and eyes open, and your mouth shut" See Sir Howard Vincent's "Police Code".

60. In Ibrahim v. Emperor, 1914 AC 599, Lord Summer gave the history of rules of common law
relating to confessions, and pointed out that they were "as old as Lord Hale". Lord Summer observed
that in R. v. Thompson, (1893)3 QB 12, and earlier in R. v. Warrickshall, (1783)1 Leach
263 : 168 ER 234, it was ruled (to quote from the second case):

"A confession forced from the mind by the flattery of hope, or by the torture of fear, comes in
so questionable a shape, when it is to be considered as the evidence of guilt, that no credit
ought to be given to it."

Lord Summer added:

"It is not that the law presumes such statements to be untrue but from the danger of
receiving such evidence Judges have thought it better to reject it for the due administration
of justice: R. v. Baldry, (1852)5 Cox CC 523. Accordingly when hope or fear were not in
question, such statements were long regularly admitted as relevant, though with some
reluctance, and subject to strong warnings as to their weight".

Even so, in the judgment referred to by Lord Summer, Parke, B. bewailed that the rule had been
carried too far out of "too much tenderness towards prisoners in this matter", and observed:

"I confess that I cannot look at the decisions without some shame, when I consider what
objection have prevailed to prevent the reception of confessions in evidence....Justice and
common sense have too frequently been sacrificed at the shrine of mercy".

Whatever the views of Parke B., Lord Sumner points out that

"when Judges excluded such evidence, it was rather explained by their observations on the
duties of policemen than justified by their reliance on rules of law."

61. Lord Summer has then traced the history of the law in subsequent years. In 1905, Channel, J. in
R. v. Knight and Thayre, (1905)20 Cox CC 711 referred to the position of an accused in custody
thus:

"When he has taken any one into custody.........he ought not to question the prisoner.....I am
not aware of any distinct rule of evidence that, if such improper questions are asked, the
answers to them are inadmissible, but there is clear authority for saying that the Judge at the
trial may in his discretion refuse to allow the answers to be given in evidence".

Five years later, the same learned Judge in Rex v. Booth and Jones, (1910)5 Cr. App Rep 177
observed :

"The moment you have decided to charge him an practically got him into custody, then,
inasmuch as a Judge cannot ask a question or a Magistrate, it is ridiculous to suppose that a
policeman can. But there is no actual authority yet, that if a policeman does ask a question it
is inadmissible; what happens is that the Judge says it is not advisable to press the matter".
62. It is to be noticed that Lord Sumner noted the difference of approach to the question by different
Judges, and observed that:

"Logically these objections all go to the weight and not to the admissibility of the evidence.
What a person having; knowledge about the matter in issue says of it is itself relevant to the
issue as evidence against him. That he made the statement under circumstances of hope,
fear, interest or otherwise strictly goes only to its weight.... .... Even the rule which excludes
evidence of statements made by a prisoner, when they are induced by hope in authority, is a
rule of policy".

The Judicial Committee did not express any opinion as to what the law should be. The state of
English law in 1861 when these rules became a part of the Indian law in a statutory form was thus
that the police could question any person including a suspect. The statements of persons who turned
out to be mere witnesses were entirely inadmissible, they being supposed to say what they could, on
oath, in Court. Statements of suspects after caution were admissible but not before the caution was
administered or they were taking in custody; but confessions were, as a rule, excluded if they were
induced by hope, fear, threat, etc.

63. When the Indian law was enacted in 1861, it is common place that the statute was drafted in
England. Two departures were made, any they were (1) that no statement made to a police officer
by any person was provable at the trial which included the accused person, and (2) that no caution
was to be given to a person making a statement.

64. In so far as the accused was concerned, he was protected from his own folly in confessing to a
charge both after and before his custody unless he respectively did so in the immediate presence of
a Magistrate, or his confession was recorded by a Magistrate. In either event, the confession had to
be voluntary and free from taint of threat, promise, fear, etc. The law was framed to protect a
suspect against too much garrulity before he knew that he was in danger which sense would dawn
on him when arrested and yet left the door open to voluntary statements which might clear him if
made but which might not be made if a caution was administered. Without the caution an innocent
suspect is not in a position to know his danger, while a person arrested knows his position only too
well. Without the caution, the line of distinction ceased, and the law very sensible left out the
statements altogether. Thus, before arrest all suspects, whether rightly suspected or wrongly, were
on par. Neither the statements of the one nor of the other were provable and there was no caution
at all.

65. The English law then was taken as a model for accused in custody. Section 27 which is framed
as an exception has rightly been held as an exception to Sections 24-26 and not only to Section 26.
The words of the section were taken bodily from R. v. Lockhart, (1785)1 Leach 386 : 168 ER
295, where it was said:

"But it should seem that so much of the confession as relates strictly to the fact discovered
by it may be given in evidence, for the reason of rejecting extorted confessions is the
apprehension that the prisoner may have been thereby induced to say what is false; but the
fact discovered shows that so much of the confession as immediately relates to it is true".

That case followed immediately after Warrickshall's case, (1783) 1 Leach 263 and summarised the
law laid down in the earlier case. The accused in that case had made a confession which was not
receivable, as it was due to promise of favour. As a result of the confession, the goods stolen were
found concealed in a mattress. It was contended that the evidence of the finding of the articles
should not be admitted. Nares, J. with Mr. Baron Eye observed:

"It is a mistaken notion, that the evidence of confessions and facts which have been obtained
from prisoners by promises or threats, is to be rejected from a regard to public faith; no such
rule ever prevailed. The idea is novel in theory, and would be dangerous in practice as it is
repugnant to the general principles of criminal law. Confessions are received in evidence, or
rejected as inadmissible, under a consideration whether they are or are not intitled to
credit......This principle respecting confessions has no application whatever as to the
admission or rejection of facts. Whether the knowledge of them be obtained in consequence
of an extorted confession, or whether it arises from any other source; for a fact, if it exists at
all, must exist invariably in the same manner, whether the confession from which it is derived
be in other respects true or false".

66. Another case is noted in the footnote in the English Report Series. In February Session, 1784,
Dorothy Mosey was tried for shop-lifting and a confession had been made by her and goods found in
consequence of it, as in the above case. Buller, J. (present Mr. Baron Perryn, who agreed) said:

"A prisoner was tried before me (Buller, J.) where the evidence was just as it is here. I
stopped all the witnesses when they came to the confession. The prisoner was acquitted.
 There were two learned Judges on the bench, who told me, that although what the prisoner
said was not evidence, yet that any facts arising afterwards may be given in evidence, though
they were done in consequence of the confession. This point, though it did not affect the
prisoner at the bar, was stated to all the Judges; and the line drawn was, that although
confessions improperly obtained cannot be received in evidence, yet that the acts done
afterwards may be given in evidence, though they were done in consequence of the
confession."

Where, however, no fact was discovered, the statement was not held admissible. See Rex v.
Richard Griffin, (1809)168 ER 732 and Rex v. Francis Jones, (1809)168 ER 733.

67. In Rex v. David Jenkins, (1822)168 ER 914, the prisoner was convicted before Bayley, J.
(present Park. J.) of stealing certain gowns and other articles. He was induced by a promise from the
prosecutor to confess his guilt, and after that confession, he carried the officer to a particular house,
but the property was not found. The evidence of the confession was not received; the evidence of
his carrying the officer to the house as above-mentioned was. But Bayley, J. referred the point for
consideration of the Judges. The Judges were of opinion that.

"the evidence was not admissible and the conviction was therefore wrong. The confession
was excluded, being made under the influence of a promise it could not be relied upon, and
the acts of the prisoner,. under the same influence, not being confirmed by the finding of the
property, were open to the same objection. The influence which might produce a groundless
confession might also produce a groundless conduct."

68. It would appear from this that Section 27 of the Evidence Act has been taken bodily from the
English law. In both the laws there is greater solicitude for a person who makes a statement at a
stage when the danger in which he stands has not been brought home to him than for one who
knows of the danger. In English law, the caution gives him the necessary warning, and in India the
fact of his being in custody takes the place of caution which is not to be given .There is, thus, a clear
distinction made between a person not accused of an offence nor in the custody of a police officer
and one who is.

69. It remains to point out that in 1912 the Judges of the King's Bench Division framed rules for the
guidance of the police. These rules, though they had no force of law, laid down the procedure to be
followed. At first, four rules were framed, but later, five more were added. They are reproduced in
Halsbury's Laws of England (3rd Edn.), Vol. 10, p. 470 para. 865. These rules also clearly divide
persons suspected of crime into those who are in police custody and those who are not. It is
assumed that a person in the former category knows his danger while the person in the latter may
not. The law is tender towards the person who may not know of his danger, because in his case
there is less chance of fairplay than in the case of one who has been warned.

70. It is to be noticed that in the Royal Commission on Police Powers and Procedure (1928-29) CMD
3297, nothing is said to show that there is anything invidious in making statements leading to the
discovery of a relevant fact admissible in evidence, when such statements are made by persons in
custody. The suggestions and recommendations of the commission are only designed to protect
questioning of persons not yet taken in custody or taken in custody on a minor charge and the sue
of statements obtained in those circumstances.

71. The law has thus made a classification of accused persons into two: (1) those two have the
danger brought home to them by detention on a charge; and (2) those who are yet free. In the
former category are also those persons who surrender to the custody by words or action. The
protection given to these two classes is different. In the case of persons belonging to the first
category the law has ruled that their statements are not admissible, and in the case of the second
category, only that portion, of the statement is admissible as is guaranteed by the discovery of a
relevant fact unknown before the statement to the investigating authority. That statement may even
be confessional in nature, as when the person in custody says: "I pushed him down such and such
mineshaft", and the body of the victim is found as a result, and it can be proved that his death was
due to injuries received by a fall down the mineshaft.

72. It is argued that there is denial of equal protection of the law, because if the statement were
made before custody began, it would be inadmissible. Of course, the making of the statement as
also the stage at which it is made depends upon the person making it. The law is concerned in
seeing fairplay, and this is achieved by insisting that an unguarded statement should not be
receivable. The need for caution is there, and this caution is very forcefully brought home to an
accused, when he is accused of an offence and is in the custody of the police. There is thus a
classification which is reasonable as well as intelligible, and it subserves a purpose recognised now
for over two centuries. When such an old and time-worn rule is challenged by modern notions, the
bases of the rule must be found. When this is done, as I have attempted to do, there is no doubt left
that the rule is for advancement of justice with protection both to a suspect not yet arrested and to
an accused in custody. There is ample protection to an accused, because only that portion of the
statement is made admissible against him which has resulted in the discovery of a material fact
otherwise unknown to the police. I do not, therefore, regard this as evidence of unequal treatment.

73. Before leaving the subject, I may point out that the recommendation of the Royal Commission
was:

"(xlviii) A rigid instruction should be issued to the Police that no questioning of a prisoner, or
a 'person in custody', about any crime or offence with which he is, or may be charged, should
be permitted. This does not exclude questions to remove elementary and obvious ambiguities
in voluntary statements, under No. (7) of the Judges' Rules but the prohibition should cover
all persons who although not in custody, have been charged and are out on bail while
awaiting trial."

This is a matter for the legislature to consider.

74. In view of what I have said above and the reasons given by Shah, J., I agree that the appeal be
allowed, as proposed by him.

ORDER

75. BY THE COURT: In accordance with the opinion of the majority the appeal is allowed. Section 27
of the Evidence Act and Section 162, sub-section. (2) of the Code of Criminal Procedure in so far as
"that section relates to Section 27 of the Evidence Act", are intra vires and do not offend Article 14
of the Constitution. The order of the High Court acquitting the respondent is also set aside and the
order of the Court of Session convicting the accused (respondent) under Section 302 of the Indian
Penal Code and sentencing him to death is restored.

Appeal allowed.

In Lata Kamat v. Vilas, (SC) 1989 AIR (SC) 1477, the respondent husband instituted a petition
for a declaration that the marriage of the respondent with the appellant wife was a nullity under sub-
sec. (1), sub-clause (d) of S. 12 of the Act on the ground that appellant, the wife at the time of
marriage with the respondent was pregnant by some one other than the respondent. Ultimately the
IIIrd Joint Civil Judge, Senior Division Nagpur granted a decree in favour of the respondent by his
judgment declaring the marriage to be a nullity. The appellant wife filed a regular Civil Appeal
before the IInd Additional District Judge, Nagpur. Before this appeal could be filed, the respondent
husband married one Miss Sarita, and in the appeal filed by the appellant, the respondent raised a
preliminary objection contending that after passing of the judgment and decree dated 3-5-1985 by
the trial Court he has married Sarita daughter of Laxmanrao Modak on 27-6-1985. It was further
alleged in the application that this marriage was solemnised on 27-6-1985 when there was no
impediment against the respondent husband which could come in his way for contracting this
marriage as the parties were relegated to the position as if they were not married and therefore this
marriage performed on 27-6-1985 of respondent with Sarita was legal and valid and the
consequence of this is that the appeal filed by the appellant was not tenable having been rendered
infructuous. The Additional District Judge, Nagpur vide his order dated 17-8-1985 allowed the
objection of the respondent and dismissed the appeal as infructuous. Against this the appellant
preferred a second appeal before the High Court which dismissed the appeal . Thus the appeal was
preferred before the Supreme Court wherein it was observed :

“In order to understand the meaning of S. 15 of the Act it would be better if we

first notice that the words 'decree for divorce' or 'decree for nullity' has not been defined in any one
of the provisions of this Act. …………………..

It is no doubt true that these two sections have different phraseology. In S. 12 it is said that
the marriage be annulled by a decree of nullity whereas in S. 13, the phraseology used is
"dissolved by decree of divorce" but in substance the meaning of the two may be different
under the circumstances and on the facts of each case but the legal meaning or the effect is
that by intervention of the Court the relationship between two spouses has been severed
either in accordance with the provisions of S. 12 or in accordance with the provisions of S.
Probably it is because of this reason that the phrase 'decree of nullity' and 'decree of divorce'
have not been defined.
Under S 28 all decrees made by the Court in any proceedings under this Act are appealable.
Apparently any proceeding under this Act will refer to a proceeding instituted under S. 13 or a
proceeding instituted under S. 11 or 12 as S. 11 or 12 talks of 'decree for nullity' and S. 13 talks of
'decree for divorce' but in order to provide an appeal against all decrees S. 28 has used a very wide
terminology which includes degrees under Ss. 11, 12 and 13 and so far as this is concerned it could
hardly be contested as the language of S. 28 itself is so clear. It is in this context that we analyse
the language of S. 15.

Before we examine the phraseology 'dissolved by decree of divorce' it would be worthwhile to

examine the remaining part of this provision, especially 'if there is such a right of appeal, the time
for appealing has expired without an appeal having been presented or an appeal has been presented
but has been dismissed'. If we give narrow meaning to the term 'dissolved by decree of divorce' as
contended by the learned counsel for the respondent, it will mean that if it is a decree under S. 13
then either party to the proceeding have to wait till the period of appeal has expired or if the appeal
is filed within limitation till the appeal is disposed of and before that it will not be lawful for either
party to the marriage to marry again. The phrase 'either party to the marriage' if is correlated with
the first part of the Section, marriage which has been dissolved by decree of divorce will indicate
that what was provided in this Section was that when a relationship of marriage is dissolved by
decree of Court and either no appeal is filed or if filed is dismissed then either party to the marriage
which has been dissolved by the process of law by a decree are free to marry again. The only words
on the basis of which the narrow meaning has been given to this Section by some of the High Courts
is on the basis of the words 'decree of divorce', it could not be doubted that where the marriage is
dissolved under S. 11, 12 or 13 by grant of a decree of nullity or divorce, the relationship is dissolve
or in any way is brought to an end and it would be significant that if the language of S. 15 is
interpreted in the light of S. 28 which provides for appeal and confers a right of appeal on either
party to proceedings which culminate into a decree bringing an end to the relationship of marriage
then we will have to infer that the Legislature so far as decrees under S. 13 are concerned wanted
the right of appeal to survive but in decrees under S. 11 or 12 the Legislature wanted the right of
appeal to be subject to the will of the other party. As it is apparent that if what is contended by the
learned counsel for the respondent and held by some of the High Courts is accepted that S. 15 will
not apply to cases when a decree is passed under S. 11 or 12 it will mean that as soon as a decree
is passed the party aggrieved may appeal but the other party by remarriage would make the appeal
infructuous and therefore the right of appeal of one of the parties to the decree under S. 28 will he
subject to the act of the other party in cases where decree is passed under S. 11 or 12 but if it were
so, the Legislature would have provided a separate provision for appeal when there is a decree
under S. 13 and a different provision for appeal when there is a decree under S. 11 or 12 as the
right of appeal against a decree under S. 11 or l2 could only be a limited right subject to the desire
of the other party. The Legislature in its wisdom has enacted S. 28 conferring a right of appeal which
is unqualified, unrestrictive and not depending on the mercy or desire of a party against all decrees
in any proceeding under this Act which will include a decree under S. 11, 12 or 13 and therefore the
only interpretation which could be put on the language of S. 15 should be which will be consistent
with S. 28. This phrase 'marriage has been dissolved by decree of divorce' will only mean where the
relationship of marriage has been brought to an end by the process of Court by a
decree…………………..…

It is no doubt true that in these two decisions, this Court was considering the
impact of an appeal against a decree under S. 13 itself and not a decree under S. 11 or 12 but as
indicated earlier if the impact of the phraseology 'right of appeal' occurring in S. 15 is to be
examined in the light of language of S. 28 as discussed earlier there will be no difference in respect
of the right of appeal whether the decree is under S. 11, 12 or 13.”

In Lila Gupta v. Laxmi Narian, (SC) 1978 AIR (SC) 1351 an interesting question arose for
consideration : Whether a marriage contracted in contravention of or violation of the proviso to S. 15
of the Act is void or merely invalid not affecting the core of marriage and the parties are subject to a
binding tie of wedlock flowing from the marriage?

S. 15 as it stood at the relevant time, which is material for the purpose of this judgment and may be
reproduced in extenso:

"15. When a marriage has been dissolved by decree of divorce and either there is no right of
appeal against the decree, or if there is such a right of appeal, the time, for appealing has
expired without an appeal having been presented, or an appeal has been presented, but has
been dismissed, it shall be lawful for either party to the marriage to marry again:

Provided that it shall not be lawful for the respective parties to marry again unless at the date
of such marriage at least one years has elapsed from the date of the decree in the court of
the first instance."

5. The substantive part of S. 15 enables divorced persons to marry again. The proviso prescribes a
time limit within which such divorced persons cannot contract marriage and the time prescribed is a
period of one year from the date of the decree in the court of the first instance. Section 16 confers
status of legitimacy on a child who but for the provision would be treated illegitimate. If a marriage
is annulled by a decree of nullity, the legal consequence would be that in the eye of law there was no
marriage at all even though the parties contracting the marriage might have gone through some
form of marriage but as they were not bound by a valid binding wedlock, the child conceived or
begotten before the decree of nullity would nonetheless be illegitimate. The law steps in and
provides that such child shall be legitimate. The principle discernible is that innocent person shall not
suffer. Section 17 provides for punishment for bigamy, Section 18 prescribes punishment for
constravention of some of the conditions prescribed for valid marriage in S. 5. Contravention of
conditions (iii), (iv), (v) and (vi) of S. 5 is made punishable under S. 18.

A comprehensive review of the relevant provisions of the Act unmistakably manifests the legislative
thrust that every marriage solemnised in contravention of one or other condition prescribed for valid
marriage is not void. Section 5 prescribes six conditions for valid marriage. Section 11 renders
marriage solemnised in contravention of conditions (i), (iv) and (v) of S. 5 only, void, Two
incontrovertible propositions emerge from a combined reading of Ss. 5 and 11 and other provisions
of the Act, that the Act specifies conditions for valid marriage and a marriage contracted in breach of
some but not all of them renders the marriage void. The statute thus prescribes conditions for valid
marriage and also does not leave it to inference that each one of such conditions is mandatory and a
contravention, violation or breach of any one of them would be treated as a breach of a pre-requisite
for a valid marriage rendering it void. The law while prescribing conditions for valid marriage
simultaneously prescribes that breach of some of the conditions but not all would render the
marriage void. Simultaneously, the Act is conspicuously silent on the effect on a marriage
solemnised in contravention or breach of the time bound prohibition enacted in S. 15. A further
aspect that stares into the face is that while a marriage solemnised in contravention of Cls. (iii), (vi),
(v) and (vi) of S. 5 is made penal, a marriage in contravention of the prohibition prescribed by the
proviso does not attract any penalty. The Act is suggestively silent on the question as to what is the
effect on the marriage contracted by two persons one or both of whom were incapacitated from
contracting marriage at the time when it was contracted in view of the fact that a period of one year
had not elapsed since the dissolution of their earlier marriage by a decree of divorce granted by the
Court of first instance. Such a marriage is not expressly declared void nor made punishable though
marriages in breach of conditions Nos. (i), (iv) and (v) are expressly declared void and marriages in
breach of conditions Nos. (iii), (iv), (v) (vi) of S. 5 are specifically made punishable by S. 18. These
express provisions would show that Parliament was aware about treating any specific marriage void
and only specific marriages punishable. This express provision prima facie would go a long way to
negative any suggestion of a marriage being void though not covered by S. 11 such as in breach of
proviso to S. 15 as being void by necessary implication. The net effect of it is that at any rate
Parliament did not think fit to treat such marriage void or that it is so opposed to public policy as to
make it punishable.

…………………Therefore, the Parliament was conscious of the fact that in view of the provisions
contained in Ss. 11 and 12 and its legal consequence a situation is bound to arise where a child
begotten or conceived while the marriage was subsisting would be illegitimate if annulled because
such marriage would be ab initio void. Look at the impact of a marriage in violation of proviso to S.
15 on child born of such marriage. Section 16 does not come to its rescue. If the marriage is to be
void as contended the child would be illegitimate. A status of legitimacy is not conferred by any
provision of the Act on a child begotten or conceived to a woman who had contracted marriage and
the marriage was in contravention of the proviso to S. 15, No intelligible explanation is offered for
such a gross discriminatory treatment. The thrust of these provisions would assist in deciding
whether the marriage in contravention of proviso to S. 15 is void as was contended on behalf of the
respondents.

8. Did the framers of law intend that a marriage contracted in violation of provision contained in the
proviso to S. 15 to be void? While enacting the legislation, the framers had in mind the question of
treating certain marriages void and provided for the same. It would, therefore, be fair to infer as
legislative exposition that a marriage in breach of other conditions the legislature did not intend to
treat as void. While prescribing conditions for valid marriage in S. 5 each of the six condition was not
considered so sacrosanct as to render marriage in breach of each of it void. This becomes manifest
from a combined reading of Ss. 5 and 11 of the Act. If the provision in the proviso is interpreted to
mean personal incapacity for marriage for a certain period and, therefore, the marriage during that
period was by a person who had not the requisite capacity to contract the marriage and hence void,
the same consequence must follow where there is breach of condition (iii) of S. 5 which also
provides for personal incapacity to contract marriage for a certain period. When minimum age of the
bride and the bridegroom for a valid marriage is prescribed in condition (iii) of S. 5 it would only
mean personal incapacity for a period because every day the person grows and would acquire the
necessary capacity on reaching the minimum age. Now, before attaining the minimum age if a
marriage is contracted S. 11 does not render it void even though S. 18 makes it punishable.
Therefore, even where a marriage in breach of a certain condition is made punishable yet the law
does not treat it as void. The marriage in breach of the proviso is neither punishable nor does S. 11
treat it void. Would it then be fair to attribute an intention to the legislature that by necessary
implication in casting the proviso in the negative expression, the prohibition was absolute and the
breach of it would render the marriage void? If void marriages were specifically provided for it is not
proper to infer that in some cases express provision in made and in some other cases voidness had
to be inferred by necessary implication. It would be all the more hazardous in the case of marriage
laws to treat a marriage in breach of a certain condition void even though the law does not expressly
provided for it. ………………………………..

9. In the Act under discussion there is a specific provision for treating certain marriages contracted
in breach of certain conditions prescribed for valid marriage in the same Act as void and
simultaneously no specific provision having been made for treating certain other marriages in breach
of certain conditions as void. In this background even though the proviso is couched in prohibitory
and negative language, in the absence of an express provision it is not possible to infer nullity in
respect of a marriage contracted by a person under incapacity prescribed by the proviso.

10. Undoubtedly, the proviso opens with a prohibition that : It shall not be lawful etc. Is it an
absolute prohibition violation of which would render the act a nullity? A person whose marriage is
dissolved by a decree of divorce suffers an incapacity for a period of one year for contracting second
marriage. For such a person it shall not be lawful to contract a second marriage within a period of
one year from the date of the decree of the court of first instance. While granting a decree for
divorce, the law interdicts and prohibits a marriage for a period of one year from the date of the
decree of divorce. Does the inhibition for a period indicate that such marriage would be void? While
there is a disability for a time suffered by a party from contracting marriage, every such disability
does not render the marriage void. A submission that the proviso is directory or at any rate not
mandatory and decision bearing on the point need not detain us because the interdict of law is that
it shall not be lawful for a certain party to do a certain thing which would mean that if that act is
done it would be unlawful. But whenever a statute prohibits a certain thing being done thereby
making it unlawful without providing for consequence of the breach, it is not legitimate to say that
such a thing when done is void because that would be tantamount to saying that every unlawful act
is void. As pointed out earlier, it would be all the more inadvisable in the field of marriage laws.
Consequences of treating a marriage void are so serious and far reaching and are likely to affect
innocent persons such as children born during the period anterior to the date of the decree annulling
the marriage that it has always been considered not safe to treat a marriage void unless the law so
enacts or the inference of the marriage being treated void is either inescapable or irresistible.
Therefore, even though the proviso is couched in a language prohibiting a certain thing being done,
that by itself is not sufficient to treat the marriage contracted in contravention of it as void.

11. Undoubtedly, where a prohibition is enacted in public interest its violation should not be treated
lightly. That necessitates examination of the object and purpose behind enacting the proviso. Till
recent past a valid Hindu marriage among the twice born class in which customary divorce was not
permissible could only be broken by the death of either party. Subsequently the concept of divorce
was introduced. Therefore, a valid Hindu marriage subsists during the lifetime of either party to the
marriage unitl it is dissolved by a decree of divorce at the instance of either party to the marriage. A
decree of divorce breaks the marriage tie. Incapacity for marriage of such persons whose marriage
is dissolved by a decree of divorce for a period of one year was presumably enacted to allay
apprehension that divorce was sought only for contracting another marriage or to avoid dispute
about the parentage of children. At the time of the divorce the wife may be pregnant. She may give
birth to a child after the decree. If a marriage is contracted soon after the divorce a question might
arises to who is the father of the child viz., the former husband or the husband of the second
marriage. There was some such time lag provided in comparable divorce laws and possibly such a
provision was, therefore, considered proper and that appears to be the purpose or object behind
enacting the proviso to S. 15. Is such public policy of paramount consideration as to render the
marriage in breach of it void? It appears to be purely a regulatory measure for avoiding a possible
confusion.

12. If it was so sacrosanct that its violation would render the marriage void, it is not possible to
appreciate why the Parliament completely dropped it. The proviso to S. 15 is deleted by S. 9 of the
Marriage Laws (Amendment) Act, 1976. The net result is that now since the amendment parties
whose marriage is dissolved by a decree of divorce can contract marriage soon thereafter provided
of course the period of appeal has expired. This will reinforce the contention that such marriage is
not void. But we would like to reaffirm the warning voiced in Chandra Mohini v. Avinash Prasad,
(1967) 1 SCR 864. In that case the decree of divorce was granted by the High Court reversing the
dismissal of the petition of the husband by the trial Court. Soon thereafter, the husband contracted
second marriage. After some time the wife moved for obtaining special leave to appeal under Art.
136 which was granted. The husband thereafter moved for revoking the leave. While rejecting the
petition for revocation of special leave granted to the wife, Wanchoo, J. (as he then was), speaking
for the Court observed that even though it may not have been unlawful for the husband to have
married immediately after the High Court's decree for no appeal as of right lies from the decree of
the High Court to this Court, still it was for the respondent to make sure whether an application for
special leave had been filed in this Court and he could not, by marrying immediately after the High
Court's decree, deprive the wife of the chance of presenting a special leave petition to this Court. If
a person does so, he takes a risk and could not ask the Court to revoke the special leave on that
ground. But apart from the caution, any marriage now contracted by a person whose marriage is
dissolved by a decree of divorce soon after the decree, if otherwise valid under S. 5, would not
attract any other consequence. This deletion clearly negatives any suggestion of any important
public policy behind the prohibition enacted in the proviso which, if contravened, would lead to the
only consequence of rendering the marriage void. In contrast it would be profitable to refer to
Marsh v. Marsh, AIR 1945 PC 188. The statute prohibited marriage by parties whose marriage
was dissolved by a decree of divorce during the period of limitation prescribed for appeal. The
contention was that such marriage in violation of a statutory prohibition is void. Negativing this
contention it was held that the decree absolute was a valid decree and it dissolved the marriage
from the moment it was pronounced and at the date when the appeal by the intervener abated, it
stood unreversed. The fact that neither spouse could remarry until the time for appealing had
expired, in no way affects the full operation of the decree. It is a judgment in rem and unless and
until a court of appeal reversed it, the marriage for all purposes is at an end.

13. To say that such provision continues the marriage tie even after the decree of divorce for the
period of incapacity is to attribute a certain status to the parties whose marriage is already dissolved
by divorce and for which there is no legal sanction. A decree of divorce breaks the marital tie and
the parties forfeit the status of husband and wife in relation to each other. Each one becomes
competent to contract another marriage as provided by S. 15, Merely because each one of them is
prohibited from contracting a second marriage for a certain period it could not be said that despite
there being a decree of divorce for certain purposes the first marriage subsists or is presumed to
subsist. Some incident of marriage does survive the decree of divorce say, liability to pay permanent
alimony but on that account it cannot be said that the marriage subsists beyond the date of decree
of divorce, Section 13 which provides for divorce in terms says that a marriage solemnised may on a
petition presented by the husband or the wife be dissolved by a decree of divorce on one or more of
the grounds mentioned in that section. The dissolution is complete once the decree is made, subject
of course, to appeal. But a final decree of divorce in terms dissolves the marriage. No incident of
such dissolved marriage can bridge and bind the parties whose marriage is dissolved by divorce at a
time posterior to the date of decree. An incapacity for second marriage for a certain period does not
have effect of treating the former marriage as subsisting. During the period of incapacity the parties
cannot be said to be the spouses within the meaning of Cl. (i), sub-sec. (1) of S. 5. The word
'spouse' has been understood to connote a husband or a wife which term itself postulates a
subsisting marriage. The word 'spouse' in sub-sec. (1) of S. 5 cannot be interpreted to mean a
former spouse because even after the divorce when a second marriage is contracted if the former
spouse is living that would not prohibit the parties from contracting the marriage within the meaning
of Cl. (i) of sub-sec. (1) of S.5. The expression 'spouse' in Cl. (i), sub-sec. (1) of S. 5 by its very
context would not include within its meaning the expression 'former spouse'.

20. Thus, examining the matter from all possible angles and keeping in view the fact that the
scheme of the Act provides for treating certain marriages void and simultaneously some marriages
which are made punishable yet not void and no consequences having been provided for in respect of
the marriage in contravention of the proviso to S. 15, it cannot be said that such marriage would be
void.

22. R.S. Pathak, J. - I agree that the appeals should be allowed, but I would prefer to rest the
decision on the reasons which I now set forth. The facts have already been set out by my brother
Desai.

The main provision of S. 15 of the Hindu Marriage Act, which bears almost identical resemblance to
the relevant statutory provisions in the case mentioned above, would perhaps attract a similar
conclusion in regard to its construction. At the lowest, there is good ground for saying that a
contention that a marriage solemnised in violation of the main provision of S. 15 is a nullity cannot
be summarily rejected. The question which arises before us in this case does not directly involve the
construction of the main provision of S. 15 and, therefore, I refrain from expressing any opinion on
the validity of such a marriage.

In Tejinder Kaur v. Gurmit Singh, (SC) 1988 (1) P.L.R. 629 , the question before the court was
whether S 15 of H.M.Act in terms is applicable to SLP , it was observed that

Parliament accordingly by the Marriage Laws (Amendment) Act, 1976 has done away with the
period of waiting by deleting the proviso. In Lila Gupta's case, this Court held that the effect of
deleting the proviso is that parties whose marriage is dissolved by a decree for divorce can contract
marriage soon thereafter provided, of course, the period of appeal has expired and that all pending
proceedings have to be decided as if the proviso had not been applicable. The deletion of the proviso
has given rise to a question of great difficulty. The section when it speaks of a case where there is a
'right of appeal' does not in terms cover a case of an application for special leave to appeal to the
Supreme Court under Art. 136 of the Constitution.

In Chandra Mohini Srivastava v. Avinash Prasad Srivastava & Anr., 1967(1) SCR 864, on
somewhat similar facts it was held that though s. 15 in terms does not apply to a case of special
leave to appeal to the Supreme Court, a spouse who has won in the High Court and got a decree of
dissolution of marriage cannot by marrying immediately after the High Court's Judgment take away
the right of presenting an application for special leave to appeal from the other spouse. It was
further held that the successful party must wait for a reasonable time and make sure whether an
application for special leave has been filed in this Court. “

In Jabir Kaur v. Kuljit Singh Bhatia , (P&H)

2007 (2) HLR 369

PUNJAB AND HARYANA HIGH COURT

Before :- Hemant Gupta, J.

COCP No. 1180 of 2005. D/d. 29.8.2007.

29.8. 2007

Jabir Kaur - Petitioner

Versus

Kuljit Singh Bhatia - Respondent

For the Petitioner :- Shri Arun Jain, Advocate.

For the Respondent :- Shri G.S. Bhatia, Advocate.

Hindu Marriage Act, 1955, Sections 13, 15 and 28 - Contempt of Courts Act, 1971, Sections
2(b), 2(c), 11 and 12 - Contempt - Remarriage during pendency of appeal - Trial Court
granted decree for dissolution of marriage on 5.8.2003 - Pending appeal , Court directed
respondent husband to restrain from remarrying - Respondent alleged to have contrcted a
second marriage on 15.9.2003 - Wife had a right of appeal and had filed appeal within
time prescribed and same not been dismissed - It would be unlawful for respondent to
solemnize second marriage till disposal of appeal - Matter being of great importance
placed before Hon'ble Chief Justice for consideration by a larger bench.

[Paras 6 to 8]

Cases referred :

1. Prakash Chand Sharma v. Smt. Vimlesh, 1995 Supp. (4) SCC 642

2. Tejinder Kaur v. Gurmit Singh, AIR 1988 SC 839.

3. Smt. Kajal Chowdhury v. Dilip Chowdhury, AIR 2004 Calcutta 113.

JUDGMENT

Hemant Gupta, J. - The present petition under Sections 11 and 12 of the Contempt of Courts Act,
1971 (hereinafter referred to as `the Act'), is directed against the alleged disobedience to the order
passed by this Court on 19.9.2003 restraining the respondent from remarrying during the pendency
of the appeal.

2. The brief facts, out of which the present petition arises are that the marriage between the parties
was solemnised on 3.4.1990. The respondent filed a petition under Section 13 of the Hindu Marriage
Act, 1955 on 30.9.1996. The learned trial Court granted a decree for dissolution of marriage on
5.8.2003. The petitioner filed first appeal in this Court on 9.9.2003 and this Court on 19.9.2003
passed the following order :-

"Issue notice to show cause why appeal be not admitted returnable on 9.2.2004. Respondent
shall be present in Court on the next date of hearing. In the meantime, respondent is
restrained from re-marrying."

3. It is pointed out that the appeal is now pending consideration before this Court, but the
respondent married one Baljit Kaur and, thus, the respondent has violated the orders passed by this
Court.

4. In reply, the respondent took up a stand that he contracted a second marriage on 15.9.2003 and
the same was registered on 18.9.2003, whereas the restraint order was passed only on 19.9.2003.
Though it is alleged by the respondent that the petitioner obtained certified copy of the judgment on
12.8.2003 but instead of filing any appeal by attaching the said certified copy of the judgment, the
petitioner applied for another copy on 26.8.2003 and on the basis of the said copy, filed the present
appeal. It is pointed out that the appeal, complete in all respects, was filed in this Court only on
18.9.2003 and thus, the marriage performed by the respondent before the receipt of the notice,
cannot be said to be a violation of the order passed by this Court as the respondent was not aware
of any restraint order.

5. During the course of arguments, learned counsel for the petitioner has vehemently argued that in
terms of Section 15 of the Hindu Marriage Act, 1955, the solemnisation of marriage by the
respondent after filing of appeal before this Court is unlawful. Therefore, for such unlawful marriage,
the respondent is liable to be punished for a civil contempt in terms of Section 2(b) of the Act, which
apart from the wilful disobedience to any judgment, decree, order, direction or writ, also includes
disobedience to the "other process of the Court". Therefore, performance of marriage by the
respondent after the filing of the appeal is an act of civil contempt punishable under Section 12 of
the Act. It is also contended that in any case, the performance of the marriage after the filing of
appeal, interferes or obstructs the administration of justice and, therefore, would be a criminal
contempt within the meaning of Section 2(c) of the act.

6. Prior to omission of proviso to Section 15 of the Hindu Marriage Act, 1955, vide Act No. 68 of
1976 with effect from 27.5.1976, the provision was that it would be lawful for the parties to marry
after one year of the grant of decree of divorce. However, by virtue of amendment, the proviso has
been deleted. Section 15 of the Hindu Marriage Act, 1955 contemplates that if there is a right of
appeal and the time for appeal has expired without having been presented an appeal or an appeal
has been presented but has been dismissed, it shall be lawful for either party to marry again. The
Hon'ble Supreme Court in Prakash Chand Sharma v. Smt. Vimlesh, 1995 Supp. (4) SCC 642,
held that even if the appeal was delayed by a view days, re-marriage during the pendency of such
appeal is opposed to Section 15 of the Hindu Marriage Act, 1955. In Tejinder Kaur v. Gurmit
Singh, AIR 1988 SC 839, it was held by the Hon'ble Supreme Court that right of appeal does not
in terms covers the right of appeal by way of Special Leave Petition to the Hon'ble Supreme Court
under Article136 of the Constitution of India. But still it was held that till such time, the period of 90
days was available for presentation of SLP, it was not lawful for either parties to marry again. A
Division Bench of Calcutta High Court in Smt. Kajal Chowdhury v. Dilip Chowdhury, AIR 2004
Calcutta 113, has held that Section 15 of the Act, cannot be read to mean only such appeals, which
are presented within the prescribed period of limitation. The Section as it stands does not seem to
make any distinction between an appeal preferred within time and beyond time. It simply says that
appeal has been presented but has been dismissed. This, will include the appeal presented even
after the expiry of limitation.

7. Conversely, if the appeal has been presented, it shall be unlawful for the either party to marry.
Admittedly, in the present case, the appellant had a right of appeal. The appeal has been presented
within the time prescribed and the same has not been dismissed, therefore, it is undoubtedly
unlawful for the respondent to solemnise the second marriage.

8. Having heard learned counsel for the parties at some length, I am of the opinion that the
controversy involved in the present petition arises quite frequently and is of great importance and,
therefore, requires authoritative consideration by a larger Bench, on the following two questions :-

1. Whether the performance of a marriage after filing of appeal, an unlawful act in terms of
Section 15 of the Hindu Marriage Act, 1955, amounts to wilful disobedience to the "other
process of the Court" disclosing a civil contempt within the meaning of Section 2(b) of the Act
?

2. Whether the act of marriage by the respondent after the filing of the appeal interferes or
obstructs the administration of justice and thereby amounts to a criminal contempt within the
meaning of Section 2(c) of the Act ?

Let the papers of the present petition be placed before Hon'ble the Chief Justice, for appropriate
orders.

In Saroj Rani v. Sudarshan Kumar Chadha, (SC) 1984 AIR (SC) 1562

JUDGMENT

Sabyasachi Mukharji, J. - The parties herein were married at Julludur City according to Hindu
Vedic rites on or about 24th January, 1975. The first daughter of the marriage Menka was born on
4th January, 1976. On 28th February, 1977 second daughter Guddi was born. It is alleged that 16th
May, 1977 was the last day of cohabitation by the parties. It is alleged that on 16th May, 1977, the
respondent-husband turned the appellant out of his house and withdrew himself from her society.
The second daughter unfortunately expired in the house of the respondent/father on 6th August,
1977. On l7th October, 1977, the wife-appellant filed a suit against the husband/respondent herein
under Section 9 of the Hindu Marriage Act, 1955 hereinafter referred to as the said Act for restitution
of conjugal rights.
2. In view of the argument now sought to be advanced, it is necessary to refer to the said petition.
In the said petition, the wife had set out the history of the marriage as hereinbefore briefly
mentioned and alleged several mal-treatments both by the husband as well as by her in-laws and
thereafter claimed decree for restitution of conjugal rights. On 21st March, 1978, the learned Sub-
Judge 1st Class passed an order granting Rs. 185/-per month as maintenance pendente lite and Rs.
300/- as the litigation expenses. On 28th March, 1978, a consent decree was passed by the learned
Sub-Judge 1st Class for restitution of conjugal rights. It may be mentioned that on the petition of
the wife for restitution of conjugal rights, the husband/respondent appeared and filed his written
statement admitting therein the factum of marriage between the parties but denied the fact that the
respondent had ever made any demand from the petitioner as alleged or had ever disliked her or
had withdrawn from her society or turned her out from his house as alleged by the wife-petitioner in
her petition for restitution of conjugal rights. The respondent thereafter made a statement in the
Court that the application of the petitioner under Section 9 of the said Act be granted and decree
thereof be passed. Accordingly the learned Sub-Judge 1st Class on 28th March, 1978 passed the
decree for the restitution of conjugal rights between the parties. It was alleged by the petitioner-wife
that the appellant had gone to the house of the respondent and lived with him for two days as
husband and wife. This fact has been disbelieved by all the courts. The courts have come to the
conclusion and that conclusion is not challenged before us that there has been no cohabitation after
the passing of the decree for restitution of conjugal rights.

3. On 19th April, 1979, the respondent/husband filed a petition under Section 13 of the said Act
against the appellant for divorce on the ground that one year had passed from the date of getting
the decree for restitution of conjugal rights, but no actual cohabitation had taken place between the
parties. The appellant filed her reply to the said petition. The categorical case in reply of the
appellant was that it was incorrect that after passing of the decree, there has been no restitution of
conjugal rights between the parties, positive case of the appellant was that after passing of the
decree, the wife was taken to the house of the husband by the parents of the wife after one month
of the decree and that the husband kept the wife in his house for two days and she was again turned
out. It was further alleged that the wife had filed an application under Section 28-A of the said Act in
the court of Sub-Judge, 1st Class, Julludur on 22nd January, 1979 with the request that the husband
should be directed to comply with the decree passed against him under Section 9 of the said Act and
the application was pending at the time when the reply was filed by the wife to the petition for
divorce.

4. The learned District Judge on 15th October, 1979 dismissed the petition of the husband for
divorce. The learned Judge framed two issues, one was whether there has been no restitution of
conjugal rights after the passing of the decree for the restitution of conjugal rights and secondly to
what relief was the husband entitled to ? After considering the evidence of civil and criminal
proceedings pending between the parties, the learned Judge came to the conclusion that there has
been no resumption of cohabitati on between the parties after 28th March, 1978 and decided the
issue in favour of the husband but on the question of relief the learned Judge was of the view that in
view of the provisions of Section 23 of the said Act and in view of the fact that the previous decree
was a consent decree and at that time there was no provision like provision of Section 13-B of the
said Act i.e. divorce by mutual consent the learned Judge was of the view that as the decree for
restitution of conjugal rights was passed by the consent of the parties, the husband was not entitled
to a decree for divorce.

5. Being aggrieved by the said decision, there was an appeal before the High Court of Punjab and
Haryana. So far as last mentioned ground was concerned, the High Court held that in view of the
decision of this Court in the case of Dharmendra Kumar v. Usha Kumari, (1978) 1 SCR 315.
this contention was not open to the wife. The court was of the opinion that in view of the said
decision of this Court, it could not be said that the husband was taking advantage of his 'wrong'. In
the said decision this Court noted that it would not be reasonable to hold that the relief which was
available to the spouse against whom a decree for restitution of conjugal rights had been passed
should be denied to the one who does not comply with the decree passed against him or her. The
expression "in order to be a 'wrong' within the meaning of Section 23. (1) (a) the conduct alleged
has to be something more than mere disinclination to agree to an offer of reunion, it must be
misconduct serious enough to justify denial of the relief to which the husband or the wife is
otherwise entitled to. So, therefore, Section 23 (l) (a) provides as follows :-

"23. (1). In any proceeding under this Act, whether defended or not, if the Court is satisfied
that-

(a) any of the grounds for granting relief exists and the petitioner except in cases where the
relief is sought by him on the ground specified in sub-clause (a), sub-clause (b) or sub-clause
(c) of clause (ii) of Section 5 is not in any way taking advantage of his or her own wrong or
disability for the purpose of such relief, and".

6. In that view of the matter, the High Court rejected the contention. So far as the other aspect was
concerned, the learned Judge expressed the view that the decree for restitution of conjugal rights
could not be passed with the consent of the parties and therefore being a collusive one disentitled
the husband to a decree for divorce. This view was taken by the learned trial Judge relying on a
previous decision of the High Court Mr. Justice Goyal of the High Court felt that this view required
reconsideration and he therefore referred the matter to the Chief Justice for constitution of a Division
Bench of the High Court for the consideration of this question.

7. The matter thereafter came up before a Division Bench of Punjab and Haryana High Court and
Chief Justice Sandhawalia for the said Court on consideration of different authorities came to the
conclusion that a consent decree could not be termed to be a collusive decree so as to disentitle the
petitioner to decree for restitution of conjugal rights. It may be mentioned that before the Division
Bench on behalf of the appellant wife, counsel did not assail the factual finding of the trial Court that
there was no cohabitation after the decree for restitution of conjugal rights nor did he press the first
ground of defence namely that the appellant could not take advantage of his 'wrong' because of
having refused cohabitation in execution of the decree. However, the ground that the decree for
restitution of conjugal rights was in a sense a collusive decree was pressed before the Division
Bench. In view of the Full Bench decision of the Punjab and Haryana High Court in the case of
Joginder Singh v. Smt. Pushpa, AIR 1969 Punj and Har 397, wherein the majority of the
Judges of the Full Bench held that a consent decree in all cases could not be said to be a collusive
decree and where the parties had agreed to passing of a decree after attempts had been made to
settle the matter, in view of the language of Section 23 if the Court had tried to make conciliation
between the parties and conciliation had been ordered, the husband was not disentitled to get a
decree.

8. Section 23 sub-section (2) provides as follows :-

"(2) Before proceeding to grant any relief under this Act, it shall be the duty of the Court in
the first instance, in every case where it is possible so to do consistently with the nature and
circumstances of the case, to make every endeavour to bring about a reconciliation between
the parties :

Provided that nothing contained in this sub-section shall apply to any proceeding wherein
relief is sought on any of the ground specified in clause (ii), clause (iii), clause (iv), clause
(v), clause (vi) or clause. (vii) of sub-section (1) of Section 13."

9. In this case from the facts on record it appears that there was no collusion between the parties.
The wife petitioned against the husband on certain allegations, the husband denied these
allegations. He stated that he was willing to take the wife back. A decree on that basis was passed.
It is difficult to find any collusion as such in the instant case. Apart from that we are in agreement
with the majority of the learned Judges of the Division Bench (Full Bench) of Punjab and Haryana
High Court in the case of Joginder Singh. v. Smt. Pushpa (supra) that all cases of consent decrees
cannot be said to be collusive. Consent decrees per se in matrimonial matters are not collusive. As
would be evident from legislative intent of Section 13-B that divorce by mutual consent is no longer
foreign to Indian law of divorce but of course this is a subsequent amendment and was not
applicable at the time when the decree in question was passed. In the premises we accept the
majority view of the Division Bench (Full Bench) of Punjab and Haryana High Court on this point.

10. In this appeal before this Court, counsel for the wife did not challenge the finding of the Division
Bench that the consent decree as such was not bad or collusive. What he tried to urge before us was
that in view of the expression 'wrong' in Section 23 (1) (a) of the Act, the husband was disentitled in
this case to get a decree for divorce. It was sought to be urged that from the very beginning the
husband wanted that decree for divorce should be passed. He therefore did not deliberately oppose
the decree for restitution of conjugal rights. It was submitted on the other hand that the
respondent/husband had with the intention of ultimately having divorce allowed the wife a decree for
the restitution of conjugal rights knowing fully well that this decree he would not honour and thereby
he misled the wife and the Court and thereafter refused to cohabitate with the wife and now, it was
submitted, cannot be allowed to take advantage of his 'wrong'. There is, however, no whisper of
these allegations in the pleadings. As usual, on this being pointed out, the counsel prayed that he
should be given an opportunity of amending his pleadings and, the parties, with usual plea, should
not suffer for the mistake of the lawyers. In this case, however, there are insurmountable
difficulties. Firstly there was no pleading secondly this ground was not urged before any of the
courts below which is a question of fact, thirdly the facts pleaded and the allegations made by the
wife in the trial Court and before the Division Bench were contrary to the facts now sought to be
urged in support of her appeal. The definite case of the wife was that after the decree for restitution
of conjugal rights, the husband and wife cohabitated for two days. The ground now sought to be
urged is that the husband wanted the wife to have a decree for judicial separation by some kind of a
trap and then not to cohabitate with her and thereafter obtain this decree for divorce. This would be
opposed to the facts alleged in the defence by the wife. Therefore quite apart from the fact that
there was no pleading which is a serious and fatal mistake, there is no scope of giving any
opportunity of amending the pleadings at this stage permitting the wife to make an inconsistent
case. Counsel for the appellant sought to urge that the expression 'taking advantage of his or her
own wrong' in clause (a) of sub section (1) of Section 23 must be construed in such a manner as
would not make the Indian wives suffer at the hands of cunning and dishonest husbands, Firstly
even if there is any scope for accepting this broad argument, it has no factual application to this
case and secondly if that is so then it requires a legislation to that effect. We are therefore unable to
accept the contention of counsel for the appellant that the conduct of the husband sought to be
urged against him could possibly come within the expression 'his own wrong' in Section 23 (1) (a) of
the Act so as to disentitle him to a decree for divorce to which he is otherwise entitled to as held by
the Courts below. Furthermore we reach this conclusion without any mental compunction because it
is evident that for whatever be the reasons this marriage has broken down and the parties can no
longer live together as husband and wife, if such is the situation it is better to close the chapter.

11. Our attention, however, was drawn to a decision of a learned single Judge of the Andhra Pradesh
High Court in the case of T. Sareetha v. Venkata Subbaiah, AIR 1983 Andh Pra 356. In the
said decision the learned Judge has observed that the remedy of restitution of conjugal rights
provided for by Sections 9 of the said Act was a savage and barbarous remedy violating the right to
privacy and human dignity guaranteed by Article 21 of the Constitution. Hence, according to the
learned Judge, Section 9 was constitutionally void. Any statutory provision that abridged the rights
guaranteed by Part III of the Constitution would have to be declared void in terms of Article 13 of
the Constitution. According to the said learned Judge, Article 21 guaranteed right to life and personal
liberty against the State action. Formulated in simple negative terms, its range of operation
positively forbidding the State from depriving any person of his life or personal liberty except
according to the procedure established by law was of far-reaching dimensions and of overwhelming
constitutional significance Learned Judge observed that a decree for restitution of conjugal rights
constituted the grossest form of violation of any individual's right to privacy. According to the
learned Judge, it denied the woman her free choice whether, when and how her body was to become
the vehicle for the procreation of another human being. A decree for restitution of conjugal rights
deprived, according to the learned Judge, a woman of control over her choice as and when and by
whom the various parts of her body should be allowed to be sensed. The woman loses her control
over her most intimate decisions. The learned Judge therefore was of the view that the right to
privacy guaranteed by Article 21 was flagrantly violated by a decree for restitution of conjugal rights.
The learned judge was of the view that a wife who was keeping away from her husband because of
permanent or even temporary estrangement cannot be forced, without violating her right to privacy
to bear a child by her husband. During a time when she was probably contemplating an action for
divorce the use and enforcement of Section 9 of the said Act against the estranged wife could
irretrievably alter her position by bringing about forcible conception permanently ruining her mind,
body and life and everything connected with it. The learned judge was therefore clearly of the view
that S. 9 of the said Act violated Article 21 of the Constitution. He referred to the Scarman
Commision's report in England recommending its abolition. The learned judge was also of the view
that S. 9 of the said Act, promoted no legitimate public purpose based on any conception of the
general good. It did not therefore sub-serve any social good. Section 9 of the said Act was,
therefore, held to be arbitrary and void as offending Article 14 of the Constitution. Learned judge
further observed that though S. 9 of the said Act did not in form offend the classification test,
inasmuch as it made no discrimination between a husband and wife, on the other hand, by making
the remedy of restitution of conjugal rights equally available both to wife and husband, it apparently
satisfied the equality test. But bare equality of treatment regardless of the inequality of realities was
neither justice nor homage to the constitutional principles. He relied on the decision of this Court in
the case of Murthy Match Works v. Assistant Collector of Central Excise, (1974) 3 SCR 121.
The learned judge, however, was of the opinion based on how this remedy worked in life that in our
social reality, the matrimonial remedy was found used almost exclusively by the husband and was
rarely resorted to by the wife.

12. The learned judge noticed and that is a very significant point that decree for restitution of
conjugal rights can only be enforced under O, 21, R. 32 of the Code of Civil Procedure. He also
referred to certain trend in the American law and came to the conclusion that S. 9 of the said Act
was null and void. The above view of the learned single judge of Andhra Pradesh was dissented from
in a decision of the learned single judge of the Delhi High Court in the case of Smt. Harvinder Kaur
V. Harmander Singh Choudhry, AIR 1984 Delhi 66. In the said decision, the learned judge of the
Delhi High Court expressed the view that S. 9 of the said Act was not violative of Articles 14 and 21
of the Constitution. The learned judge noted that the object of restitution decree was to bring about
cohabitation between the estranged parties so that they could live together in the matrimonial home
in amity. The leading idea of S. 9 was to preserve the marriage. From the definition of cohabitation
and consortium, it appeared to the learned judge that sexual intercourse was one of the elements
that went to make up the marriage, but that was not the sum-mum bonum. The courts do not and
cannot enforce sexual intercourse. Sexual relations constituted an important element in the
conception of marriage, but it was also true that these did not constitute its whole content nor could
the remaining aspects of matrimonial consortium be said to be wholly un-substantial or of trivial
character. The remedy of restitution aimed at cohabitation and consortium and not merely at sexual
intercourse. The learned judge expressed the view that the restitution decree did not enforce sexual
intercourse. It was a fallacy to hold that the restitution of conjugal rights constituted "the starkest
form of governmental invasion" of "marital privacy".

13. This Point namely validity of S. 9 of the said Act was not canvassed in the instant case in the
courts below counsel for the appellant, however, sought to urge this point before us as a legal
proposition. We have allowed him to do so.

14. Having considered the views of the learned single judge of the Andhra Pradesh High Court and
that of learned single judge of Delhi High Court, we prefer to accept on this aspect namely on the
validity of S. 9 of the said Act the views of the learned single judge of the Delhi High Court. It may
be mentioned that conjugal rights may be viewed in its proper perspective by keeping in mind the
dictionary meaning of the expression "conjugal". Shorter Oxford English Dictionary, 3rd Edn. Vol. 1
page 371 notes the meaning of 'conjugal' as "of or pertaining to marriage or to husband and wife in
their relations to each other". In the Dictionary of English Law, 1959 Edn., at page 453, Earl Jowitt
defines 'conjugal rights' thus :

"The right which husband and wife have to each other's society and marital intercourse. The
suit for restitution of conjugal rights is a matrimonial suit, cognisable in the Divorce Court,
which is brought whenever either the husband or the wife lives separate from the other
without any sufficient reason, in which case the court will decree restitution of conjugal rights
(Matrimonial Causes Act, 1950, S. 15), but will not enforce it by attachment, substituting
however for attachment, if the wife be the petitioner, an order for periodical payments by the
husband to the wife (S. 22).

Conjugal rights cannot be enforced by the act of either party, and a husband cannot seize
and detain his wife by force (R. v. Jackson, (1891) 1 QB 671)".

15. In India it may be borne in mind that conjugal rights i.e. right of the husband or the wife to the
society of the other spouse is not merely creature of the statute. Such a right is inherent in the very
institution of marriage itself, See in this connection Mulla's Hindu Law - 15th Edn. p. 567 - Para.
443. There are sufficient safeguards in S. 9 to prevent it from being a tyranny. The importance of
the concept of conjugal rights can be viewed in the light of Law Commission - 71st Report on the
Hindu Marriage Act, 1955 - "Irretrievable Breakdown of Marriage as a Ground of Divorce, Para 6.5
where it is stated thus-

"Moreover, the essence of marriage is a sharing of common life, a sharing of all the
happiness that life has to offer and all the misery that has to be faced in life, an experience of
the joy that comes from enjoying, in common things of the matter and of the spirit and from
showering love and affection on one's off-spring. Living together is a symbol of such sharing
in all its aspects. Living apart is a symbol indicating the negation of such sharing. It is
indicative of a disruption of the essence of marriage "breakdown" - and if it continues for a
fairly long period, it would indicate destruction of the essence of marriage - "irretrievable
breakdown".

16. Section only is a codification of pre-existing law. Rule 32 of O. 21 of the Code of Civil Procedure
deals with decree for specific performance for restitution of conjugal rights or for an injunction. Sub-
rule (1) of R. 32 is in these terms :

"Where the party against whom a decree for the specific performance of a contract, or for
restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of
obeying the decree and has wilfully failed to obey it, the decree may be enforced in the case
of a decree for restitution of conjugal rights by the attachment of his property or, in the case
of a decree for the specific performance of a contract, or for an injunction by his detention in
the civil prison, or by the attachment of his property, or by both".

17. It is significant to note that unlike a decree of specific performance of contract, for restitution of
conjugal rights, the sanction is provided by court where the disobedience to such a decree is wilful
i.e. is deliberate, inspite of the opportunities and there are no other impediments, might be enforced
by attachment of property. So the only sanction is by attachment of property against dis- obedience
of a decree for restitution of conjugal rights where the disobedience follows as a result of a wilful
conduct i.e. where conditions are there for a wife or a husband to obey the decree for restitution of
conjugal rights but disobeys the same inspite of such conditions, then only financial sanction,
provided he or she has properties to be attached, is provided for. This is so as an inducement by the
court in appropriate case when the court has decreed restitution for conjugal rights and that the
court can only decree if there is no just reason for not passing decree for restitution of conjugal
rights to offer inducement for the husband or wife to live together in order to give them an
opportunity to settle up the matter amicably. It serves a social purpose as an aid to the prevention
of break-up of marriage. It cannot be viewed in the manner the learned single Judge of Andh
Pradesh High Court has viewed it and we are therefore unable to accept the position that S. 9 of the
said Act is violative of Article 14 or Article 21 of the Constitution if the purpose of the decree for
restitution of conjugal rights in the said Act is understood in its proper perspective and if the method
of its execution in cases of disobedience is kept in view.

18. Another decision to which our attention was drawn is also a Bench decision of the Andhra
Pradesh High Court in the case of Geeta Lakshmi v. G.V.R.K. Sarveswara Rao, AIR 1983 Andh
Pra 111. There on the admitted misconduct of the husband in not only in not complying with the
decree for restitution of conjugal rights but ill-treating the wife and finally driving her away from the
house, it was held, that the husband was not entitled to a decree under S. 13 (1 A) of the said Act in
view of the wrong as contemplated under S. 23 (1) (a) of the Act. The facts of that case were
entirely different from the facts of the instant case before us. There is no such allegation or proof of
any ill-treatment by the husband or any evidence of the husband driving the wife out of the house.
In that view of the matter, this decision cannot be of any assistance to the appellant in the instant
case.

19. Counsel for the appellant, however, contended before us that in the social reality of the Indian
society, a divorced wife would be materially at a great disadvantage. He is right in this submission.
In view, however, of the position in law, we would direct that even after the final decree of divorce,
the husband would continue to pay maintenance to the wife until she remarries and would maintain
the one living daughter of the marriage. Separate maintenance should be paid for the wife and the
living daughter. Until altered by appropriate order on application on proper materials such
maintenance should be Rs. 200/- per month for the wife/appellant and Rs. 300/- per month for the
daughter Menka. Wife would be entitled to such maintenance only until she remarries and the
daughter Menka to her maintenance until she is married. Parties will be at liberty to ask for variation
of the amounts by proper application on proper materials made before Sub-Judge Ist Class,
Jullundur. The respondent would pay costs of this appeal to appellant assessed at Rs. 1500/-.

20. The appeal is dismissed with the aforesaid directions.

Appeal dismissed.