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2. This appeal is against a judgment and order dated 15th December, 2020 passed by the High Court of Judicature at Allahabad dismissing the application of the Appellant under Section 482 of the Code of Criminal Procedure (hereinafter referred to as the ‘Cr.P.C.’). 3. As recorded in the judgment and order impugned, the application under Section 482 of the Cr.P.C. had been filed for quashing of proceedings in Crime Case No.5973/2020 (State v. Rajan Kumar) under Sections 420, 467, 468 and 471 of the Indian Penal Code (hereinafter referred to as the ‘I.P.C.’), Police Station Shahpur, District Gorakhpur pending in the Court of the Additional 2 Chief Judicial Magistrate, IIIrd District Gorakhpur and also to quash the charge sheet dated 18th January, 2020 and summoning order dated 26th June, 2020. The High Court has, in detail, recorded the arguments of the applicants which are very briefly summarised hereinbelow :- (i) The case lodged was false and baseless; (ii) Charge-Sheet had been submitted without proper investigation and evidence; (iii) No prima facie case was disclosed against the applicants. 4. It is the case of the Appellant that one Arjun Dev and his wife Bela Rani were recorded as Bhumidhar of Plot No. 971M area 918 Aire (hereinafter referred to as the ‘plot in question’) and that they had executed a registered Power of Attorney in favour of the Applicant No.1 Rajan Kumar, who has since died. 5. It is said that on the basis of the said Power of Attorney, the said Rajan Kumar (since deceased) executed sale deeds in favour of the Appellant and his family members on 16th July, 2014, 1st August, 2014, 6th August, 2014 and 23rd July, 2014, pursuant to which, the name of the Appellant and others were mutated in the Revenue records. 6. From the facts, as recorded in the judgment and order under appeal, it appears that during the mutation proceedings, one Smt. Beena Srivastava had filed objections before the Naib Tehsildar but the same were rejected and the property was duly mutated in favour of the Appellant and his family members by an order dated 28th February, 2015. 3 7. Smt. Beena Srivastava filed an Original Suit No. 971 of 2014 for cancellation of the Power of Attorney dated 4th June, 2014 and the sale deeds executed by Rajan Kumar (since deceased) in favour of the Appellant and his family members but that suit was dismissed under Order VII Rule 11 of the Code of Civil Procedure, by order dated 18th September, 2015. 8. The order dated 18th September, 2015 was challenged in First Appeal No.531 of 2015 before the High Court. That appeal was partly allowed by an order dated 26th November, 2015 with a direction on the Trial Court to return the plaint of the plaintiff for presentation before the appropriate Court. 9. Being aggrieved by the order of the High Court dated 26th November, 2015, Smt. Beena Srivastava, approached this Court by filing Special Leave Petition (Civil) No. 2848 of 2016 which had been dismissed by an order dated 8th September, 2016. From the judgment and order impugned, it appears that it had been submitted before the High Court that Chandra Prakash Srivastava and Smt. Beena Srivastava had also filed a Contempt Application No. 706 of 2016 which had been dismissed by an order dated 10th February, 2016. Before the High Court, it was submitted that when Beena Srivastava could not get any relief from the Trial Court right upto this Court, she filed a Writ Petition No. 12275 of 2016 which had also been dismissed by an order dated 28th March, 2016. The said Beena Srivastava’s son, Dr. Virat Swaroop Saxena also filed a contempt application which had been dismissed by an order dated 29th July, 2016. 4 10. Pursuant to the order dated 28th March, 2016 passed by the High Court in Writ Petition No.12275/2016, the Appellant instituted Original Suit No.608 of 2016 in the Court of Civil Judge, Senior Division, Gorakhpur for permanent injunction in respect of the plots in question. It appears that by an order dated 12th April, 2016, temporary injunction had been granted in favour of the Appellant. This is recorded in the judgment and order under appeal. 11. It was the case of the applicants before the High Court, (including Rajan Kumar, since deceased), that having failed to get relief from the courts, Beena Srivastava brought in Ratnesh Mishra, Smt. Afroz Athar and Abdul Gani into the picture to harass the Appellant. We are not really concerned with these allegations for the purpose of this appeal. 12. Suffice it to mention that the judgment and order under appeal records the submission of the applicants that the Power of Attorney holder of Bela Rani, namely, Rajan Kumar (since deceased) had executed the sale deed dated 22nd June, 2017 in favour of the Applicant No.2 (that is, the Appellant before us) after receiving 5 the sale consideration. Later, a supplementary deed was executed on 16.09.2017. On the basis of Sale Deed dated 22nd June, 2017, the name of the Appellant was mutated in the records. Further details of what transpired are not recorded to avoid unnecessary prolixity. Suffice it to mention that the Respondent No.2 filed an FIR in this Court. The relevant extracts from the said FIR, lodged on 16th September, 2017 are reproduced hereinbelow for convenience :- “The applicant has purchased on 21.08.2017 one house with courtyard in which shops are also present from Smt. Afroz wife of Ghani Athar Resident of Moh. Basharpur, Gorakhpur and Virendra Kumar Abrol son of Ram Swarop Abrol Resident of Jail Road Shahpur currently residing at Raghav Nagar Deoria by way of registered Sale Deed in which one shop made by asbestos sheet and one residential Room with Gate at back side is constructed. ………………………. …………………….. …………………….. The said house with boundary wall & shop is registered in the name of Afroz Athar at the Municipal Corporation and she has been paying the applicable house Tax on the same and nobody had interfered in her possession. In the meanwhile, Afroz Athar was in dire need of money and proposed to sell the said Land and house to the applicant. The Applicant purchased the said House No. 239/B with the house and courtyard by way of Sale Deed and as a precautinary measure also got the signatures of the erstwhile owner Virendra Kumar Abrol on the Sale Deed so that no dispute remains in the future. In the meantime, one other person Rajan Kumar son of Late Ramswaroop 77 Geeta Vatika, Shahpur Gorakhpur currently residing at Ragav Nagar Deoria on the basis of a false Power of Attorney of Bela Rani executed a Sale Deed to Randheer Singh son of Late Shiv Shanker House No. 11C Divya Nagar Colony P.S Khorabar, Gorakhpur by connivance whereas Bela Rani had no right to sell the Afroz Athar’s House intact with Boundary wall. On the basis of the same False Sale Deed Randheer Singh and Rajan Kumar in association with the witnesses of the said sale deed Vishal Sharma son of Ram Chandra & Sunil Kumar son of Sh. Rajdev, who are Criminal natured persons, are attempting to trespass the house by breaking open the Lock and today night have also got written their name in my absence. When in the morning the applicant got the knowledge of the same he went to the police station to lodge First Information Report but due to their influence our report could not be lodged and for which the applicant is making this application before you. The above stated Randheer Singh and Rajan Kumar have done this to obtain 6 their benefit & have created a False document and by intention to cause loss to us & to forcibly grab my house and therefore for this reason it is necessary in the interest of justice to registered a case against them. Hence it is prayed that the case be registered ………….” 13. As pointed out by Mr. Sanjeev Agarwal, learned counsel appearing on behalf of Respondent No.2, the FIR was challenged in the High Court of Judicature at Allahabad under Article 226 of the Constitution of India. The said writ petition was disposed of by order dated 5th October, 2017 with the following order: “It is contended that the dispute in respect of the property as to whether the petitioners have any right therein on the basis of conveyance deed executed by power of attorney holder or the first informant has the right is purely civil in nature and does not give rise to any criminal liability. Learned AGA and Sri Sudhanshu Pandey, appearing for complainant-respondent no. 3 opposed the petition. We have gone through the allegations contained in the impugned F.I.R., which, prima-facie, discloses commission of cognizable offence, as such, we are not inclined to interfere in the F.I.R. However, in view of the facts and the allegations made in the FIR, writ petition stands finally disposed of with the direction that the petitioners shall not be arrested in the aforesaid case crime number till submission of police report under Section 173(2) Cr.P.C. before the Court concerned, subject to their cooperation in the investigation, which will go on and shall be brought to a logical end.” 14. Mr. Agarwal, submitted that the order dated 5th October, 2017 of the High Court disposing of the Writ Petition (Criminal Miscellaneous) No.20919 of 2017 had not been challenged by the Appellants and had, thus, assumed finality. It was not open to the Appellant to reopen the same issues by filing an application under Section 482 of the Cr.P.C. 7 15. The scope of interference by the High Court under Section 482 of the Cr.P.C. is wide as recorded by the High Court by the judgment and order impugned. The High Court itself has said that though inherent power under Section 482 of the Cr.P.C. is very wide, it has to be exercised in exceptional cases. 16. There can be no doubt that the jurisdiction under Section 482 is not exercised for the asking, it is exercised with care in exceptional cases. The scope of interference with an FIR is much more restricted and ordinarily the Court does not interfere under Article 226 of the Constitution of India, when there is an alternative remedy available to the applicant. Furthermore, from the tenor of the order of the High Court rejecting the writ petition, it is patently clear that one of the reasons why the High Court did not intervene at that stage was that the Police report had also not been submitted. The Police report has since been submitted and the charge sheet has been filed. It is true that about 12-13 witnesses have been named. However, the said Bela Rani who executed the Power of Attorney has not even been cited as a witness. Apparently, the said Bela Rani was not even examined by the Investigating Authorities. 17. In this appeal, we are not concerned with the underlying civil disputes between the parties which are the subject matter of diverse civil proceedings which are pending between the Appellant and the private respondent in the concerned civil courts. All those civil suits will obviously be decided on their own merits. 8 18. The only question is whether there is any criminal offence disclosed in the FIR so far as the Appellant is concerned. When the High Court passed its order dated 5th October, 2017, Rajan Kumar (since deceased), the executant of the sale deed and the Power of Attorney holder was also an applicant before the Court. Today, there has been a change in situation, in that, criminal proceedings against Rajan Kumar have abated since Rajan Kumar is no longer alive. It is the case of the private respondent that the private respondent purchased property. In the meantime, Rajan Kumar, who is no longer alive, on the basis of a false Power of Attorney of Bela Rani, executed a sale deed in favour of Randheer Singh, i.e., the Appellant herein. There is only a vague averment “by connivance”. The next part of the sentence reads “Bela Rani had no right to sell the aforesaid plot.” 19. As recorded in the judgment and order, the property in question has even been mutated in the name of the Appellant. Of course, mutation records are not a document of title. Whether Bela Rani had title, whether she validly executed a power of attorney, whether any right has accrued to the Appellant, are matters for the civil court to adjudicate. 9 20. There is a further allegation that on the basis of the false sale deed, the Appellant and Rajan Kumar (since deceased) in association with the witnesses of the sale deed who are “criminal natured persons” were attempting to trespass the house by breaking open the lock and had got written their name in the absence of the complainant. 21. It is interesting that a charge sheet was filed, the relevant part whereof is extracted hereinbelow for convenience :- “16. Brief fact of the case : The case was successful on the basis of the plaintiff. Further, the investigation was transferred from police station Shahpur to the Crime Branch. The above investigation was done by me. So for during the investigation the statements of the witness and sec. 420, 467, 468, 471 of IPC has been registered against the accused. The accused is send to the court, punished the accused by summing.” 22. The charge sheet is totally vague. There is not even a whisper in the charge-sheet of what transpired from the investigation against the Appellant herein. 23. Even though an FIR need not contain every detail, an offence has to be made out in the FIR itself. It is the case of the Private Respondents that Bela Rani has no title. Bela Rani executed a false Power of Attorney in favour of Rajan Kumar (since deceased). Alternatively, the Power of Attorney, in itself, was a forged document. 10 24. A fraudulent, fabricated or forged deed could mean a deed which was not actually executed, but a deed which had fraudulently been manufactured by forging the signature of the ostensible executants. It is one thing to say that Bela Rani fraudulently executed a Power of Attorney authorising the sale of property knowing that she had no title to convey the property. It is another thing to say that the Power of Attorney itself was a forged, fraudulent, fabricated or manufactured one, meaning thereby that it had never been executed by Bela Rani. Her signature had been forged. It is impossible to fathom how the investigating authorities could even have been prima facie satisfied that the deed had been forged or fabricated or was fraudulent without even examining the apparent executant Bela Rani, who has not even been cited as a witness. 25. Ms. Deepika Kalia, learned counsel appearing on behalf of the State, competently argued the matter and vehemently tried to persuade this Court not to intervene. She even sought time to produce further documents. However, the charge-sheet speaks for itself and there could be no question of improvement of the charge-sheet read with the FIR, either by adducing documents or by filing affidavit or by making oral submissions. 26. Mr. Chandra Prakash, learned counsel appearing on behalf of the Appellant cited certain judgments of this Court in <cite>Mohd. Ibrahim & Others v. State of Bihar [(2009) 8 SCC 751]</cite>; <cite>Paramjeet Batra v. State of Uttarakhand [(2013) 11 SCC 673]</cite>; <cite>Uma Shankar Gopalika v. State of Bihar & Anr. [(2005) 10 SCC 336]</cite>; <cite>Vesa 11 Holdings Private Limited & Anr. v. State of Kerala & Ors. [(2015) 8 SCC 293]</cite>; <cite>Robert John D’Souza & Ors. v. Stephen V. Gomes & Anr. [(2015 (9) SCC 96]</cite>; and <cite>Kapil Agarwal & Ors. v. Sanjay Sharma & Ors. [(2021) 5 SCC 524]</cite>. 27. In <cite>Mohd. Ibrahim (supra)</cite>, this Court held as under :- “19. To constitute an offence under Section 420, there should not only be cheating, but as a consequence of such cheating, the accused should have dishonestly induced the person deceived to deliver any property to any person, or (i) (ii) to make, alter or destroy wholly or in part a valuable security (or anything signed or sealed and which is capable of being converted into a valuable security). When a sale deed is executed conveying a property 20. claiming ownership thereto, it may be possible for the purchaser under such sale deed to allege that the vendor has cheated him by making a false representation of ownership and fraudulently induced him to part with the sale consideration. But in this case the complaint is not by the purchaser. On the other hand, the purchaser is made a co-accused. It is not the case of the complainant that any of the 21. accused tried to deceive him either by making a false or misleading representation or by any other action or omission, nor is it his case that they offered him any fraudulent or dishonest inducement to deliver any property or to consent to the retention thereof by any person or to intentionally induce him to do or omit to do anything which he would not do or omit if he were not so deceived. Nor did the complainant allege that the first appellant pretended to be the complainant while executing the sale deeds. Therefore, it cannot be said that the first accused by the act of executing sale deeds in favour of the second accused or the second accused by reason of being the purchaser, or the third, fourth and fifth accused, by reason of being the witness, scribe and stamp vendor in regard to the sale deeds, deceived the complainant in any manner. As the ingredients of cheating as stated in Section 415 22. are not found, it cannot be said that there was an offence punishable under Sections 417, 418, 419 or 420 of the Code. A clarification 12 23. When we say that execution of a sale deed by a person, purporting to convey a property which is not his, as his property, is not making a false document and therefore not forgery, we should not be understood as holding that such an act can never be a criminal offence. If a person sells a property knowing that it does not belong to him, and thereby defrauds the person who purchased the property, the person defrauded, that is, the purchaser, may complain that the vendor committed the fraudulent act of cheating. But a third party who is not the purchaser under the deed may not be able to make such complaint. 24. The term “fraud” is not defined in the Code. The dictionary definition of “fraud” is “deliberate deception, treachery or cheating intended to gain advantage”. Section 17 of the Contract Act, 1872 defines “fraud” with reference to a party to a contract. 27. “dishonestly” which is defined in Section 24 as follows: The term “fraudulently” is mostly used with the term “24. ‘Dishonestly’.—Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person is said to do that thing ‘dishonestly’.” 28 [Ed.: Para 28 corrected vide Official Corrigendum No. F.3/Ed.B.J./149/2009 dated 6-10-2009.] . To “defraud” or do something fraudulently is not by itself made an offence under the Penal Code, but various acts when done fraudulently (or fraudulently and dishonestly) are made offences. These include: (i) Fraudulent removal or concealment of property (Sections 206, 421 and 424). (ii) Fraudulent claim to property to prevent seizure (Section 207). (iii) Fraudulent suffering or obtaining a decree (Sections 208 and 210). (iv) Fraudulent possession/delivery of counterfeit coin (Sections 239, 240, 242 and 243). (v) Fraudulent alteration/diminishing weight of coin (Sections 246 to 253). (vi) Fraudulent acts relating to stamps (Sections 255 to 261). (vii) Fraudulent false instrument/weight/measure (Sections 264 to 266). of use (viii) Cheating (Sections 415 to 420). (ix) Fraudulent prevention of debt being available to creditors (Section 422). 13 (x) Fraudulent execution of deed of transfer containing false statement of consideration (Section 423). (xi) Forgery making or executing a false document (Sections 463 to 471 and 474). (xii) Fraudulent cancellation/destruction of valuable security, etc. (Section 477). (xiii) Fraudulently going through marriage ceremony (Section 496). It follows therefore that by merely alleging or showing that a person acted fraudulently, it cannot be assumed that he committed an offence punishable under the Code or any other law, unless that fraudulent act is specified to be an offence under the Code or other law. Section 504 of the Penal Code 29. The allegations in the complaint do not also make out the ingredients of an offence under Section 504 of the Penal Code. Section 504 refers to intentional insult with intent to provoke breach of peace. The allegation of the complainant is that when he enquired with Accused 1 and 2 about the sale deeds, they asserted that they will obtain possession of land under the sale deeds and he can do whatever he wants. The statement attributed to Appellants 1 and 2, it cannot be said to amount to an “insult with intent to provoke breach of peace”. The statement attributed to the accused, even if it was true, was merely a statement referring to the consequence of execution of the sale deeds by the first appellant in favour of the second appellant. Conclusion 30. The averments in the complaint if assumed to be true, do not make out any offence under Sections 420, 467, 471 and 504 of the Code, but may technically show the ingredients of offences of wrongful restraint under Section 341 and causing hurt under Section 323 IPC.” 28. In <cite>Paramjeet Batra (supra)</cite>, this Court held that :- “12. While exercising its jurisdiction under Section 482 of the Code the High Court has to be cautious. This power is to be used sparingly and only for the purpose of preventing abuse of the process of any court or otherwise to secure ends of justice. Whether a complaint discloses a criminal offence or not depends 14 upon the nature of facts alleged therein. Whether essential ingredients of criminal offence are present or not has to be judged by the High Court. A complaint disclosing civil transactions may also have a criminal texture. But the High Court must see whether a dispute which is essentially of a civil nature is given a cloak of criminal offence. In such a situation, if a civil remedy is available and is, in fact, adopted as has happened in this case, the High Court should not hesitate to quash the criminal proceedings to prevent abuse of process of the court.” 29. In <cite>Uma Shankar Gopalika (supra)</cite>, this Court found that the complaint, in that case, did not disclose any criminal offence at all, much less any offence under Section 420 or Section 120B IPC. The case was purely a civil dispute between the parties for which remedy lay before the civil Court. 30. In <cite>Vesa Holdings Private Limited (supra)</cite>, this Court held :- “13. It is true that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may be available to the complainant that itself cannot be a ground to quash a criminal proceeding. The real test is whether the allegations in the complaint disclose the criminal offence of cheating or not. In the present case there is nothing to show that at the very inception there was any intention on behalf of the accused persons to cheat which is a condition precedent for an offence under Section 420 IPC. In our view the complaint does not disclose any criminal offence at all. The criminal proceedings should not be encouraged when it is found to be mala fide or otherwise an abuse of the process of the court. The superior courts while exercising this power should also strive to serve the ends of justice. In our opinion, in view of these facts allowing the police investigation to continue would amount to an abuse of the process of the court and the High Court committed an error in refusing to exercise the power under Section 482 of the Criminal Procedure Code to quash the proceedings.” 31. In <cite>Robert John D’Souza (supra)</cite>, this Court held : “12. As far as the offence of cheating is concerned, the same is defined in Section 415 IPC, for which the punishment is provided under Section 420 IPC. Section 415 reads as under: 15 “415. Cheating.—Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to ‘cheat’. Explanation.—A dishonest concealment of facts is a deception within the meaning of this section. Illustrations ***” From the above language of the section, one of the essential ingredients for the offence of cheating is deception, but in the present case, from the contents of the complaint it nowhere reflects that the complainant was deceived or he or anyone else was induced to deliver the property by deception. What was done, was so reflected in the resolutions, and sale deeds. 13. In <cite>Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre [(1988) 1 SCC 692 : 1988 SCC (Cri) 234]</cite> a three-Judge Bench of this Court has laid down the law as to quashment of proceedings under Section 482 CrPC as follows: (SCC p. 695, para 7) “7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.” 15. In <cite>Inder Mohan Goswami v. State of Uttaranchal [(2007) 12 SCC 1 : (2008) 1 SCC (Cri) 259]</cite> , this Court in paras 25 and 46 has observed as under: (SCC pp. 10-11 & 16) 16 “25. Reference to the following cases would reveal that the courts have consistently taken the view that they must use this extraordinary power to prevent injustice and secure the ends of justice. The English courts have also used inherent power to achieve the same objective. It is generally agreed that the Crown Court has inherent power to protect its process from abuse. In Connelly v. Director of Public Prosecutions [1964 AC 1254 : (1964) 2 WLR 1145 : (1964) 2 All ER 401 (HL)] Lord Devlin stated that where particular criminal proceedings constitute an abuse of process, the court is empowered to refuse to allow the indictment to proceed to trial. <cite>Lord Salmon in Director of Public Prosecutions v. Humphrys [1977 AC 1 : (1976) 2 WLR 857 : (1976) 2 All ER 497 (HL)]</cite> stressed the importance of the inherent power when he observed that it is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the Judge has the power to intervene. He further mentioned that the court's power to prevent such abuse is of great constitutional importance and should be jealously preserved. ****** The court must ensure that criminal 46. prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurise the accused. On analysis of the aforementioned cases, we are of the opinion that it is neither possible nor desirable to lay down an inflexible rule that would govern the exercise of inherent jurisdiction. Inherent jurisdiction of the High Courts under Section 482 CrPC though wide has to be exercised sparingly, carefully and with caution and only when it is justified by the tests specifically laid down in the statute itself and in the aforementioned cases. In view of the settled legal position, the impugned judgment cannot be sustained.” 16. In view of the above discussion and the facts and circumstances of the case, we are of the view that none of the offences for which the appellants are summoned, is made out from the complaint and material on record. We further find that it is nothing but abuse of process of law on the part of the complainant to implicate the appellants in a criminal case after a period of twelve years of execution of registered sale deeds in question, who is neither party to the sale deeds nor a member of the Society. Therefore, we allow the appeal and set aside the orders passed by the High Court and that of the courts below. Accordingly, the order passed by the Magistrate summoning the appellants in the criminal complaint filed by Respondent 1, in respect of the offences punishable under Sections 406, 409 and 420 IPC, also stands quashed.” 17 32. In <cite>Kapil Agarwal (supra)</cite>, this Court observed that Section 482 is designed to achieve the purpose of ensuring that criminal proceedings are not permitted to generate into weapons of harassment. 33. In this case, it appears that criminal proceedings are being taken recourse to as a weapon of harassment against a purchaser. It is reiterated at the cost of repetition that the FIR does not disclose any offence so far as the Appellant is concerned. There is no whisper of how and in what manner, this Appellant is involved in any criminal offence and the charge sheet, the relevant part whereof has been extracted above, is absolutely vague. There can be no doubt that jurisdiction under Section 482 of the Cr.P.C. should be used sparingly for the purpose of preventing abuse of the process of any court or otherwise to secure the ends of justice. Whether a complaint discloses criminal offence or not depends on the nature of the allegation and whether the essential ingredients of a criminal offence are present or not has to be judged by the High Court. There can be no doubt that a complaint disclosing civil transactions may also have 18 a criminal texture. The High Court has, however, to see whether the dispute of a civil nature has been given colour of criminal offence. In such a situation, the High Court should not hesitate to quash the criminal proceedings as held by this Court in <cite>Paramjeet Batra (supra)</cite> extracted above. 34. The given set of facts may make out a civil wrong as also a criminal offence. Only because a civil remedy is available may not be a ground to quash criminal proceedings. But as observed above, in this case, no criminal offence has been made out in the FIR read with the Charge-Sheet so far as this Appellant is concerned. The other accused Rajan Kumar has died. 35. The appeal is, thus, allowed. The impugned judgment and order of the High Court is set aside and the proceedings in Crime Case No.5973/2020 are quashed as against the Appellant. CRIMINAL APPEAL NO. 933 OF 2021 36. Leave granted. 37. The issues involved in this appeal are identical to the issues involved in Appeal No. 932 of 2021 disposed of earlier today. We may add that in this case, the Appellants are only witnesses to the sale deed and there is not a word anywhere in the FIR about these witnesses except the vague averment that they acted in collusion. 38. For the reasons discussed in Criminal Appeal No. 932 of 2021, this appeal is also allowed and Crime Case No.5973 of 2020 is set aside so far as these Appellants are concerned.

1. 2. The challenge in the present appeal is to an order passed by the High Court of Uttarakhand at Nainital on 20.7.2020 whereby the petition filed by the appellant under Section 482 of the Code of Criminal Procedure, 19731 for quashing the charge-sheet as well as the summoning order dated 25.6.2020 was dismissed. The FIR No. 173 in question was lodged by the respondent No. 2 on 11.12.2019 at 23:24 hours in respect of an incident alleged to have occurred on 10.12.2019 at 10:00 hours against the appellants and others. The FIR was lodged for the offences under Sections 452, 1 For short, the ‘Code’ 1 504, 506 IPC and Section 3(1)(x) and 3(1)(e) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 19892. The said FIR, when translated, reads as under: “Respected SHO with respect of registering of FIR, the complainant is presently resident of Gram New Bajeti Patti Chandak Tehsil & District Pithoragarh. I am constructing my house on my Khet No. 6195, 6196 & 6199 but Banshilal, Pyarelal S/o Late Har Lal, Hitesh Verma S/o Sh. Pyarelal, Pawan Verma S/o Banshilal, Uma Verma w/o Pyarelal and their Nepali Domestic help Raju from past 6 months are not allowing the applicant to work on her fields. All the above persons used to abuse the applicant her husband and other family members and use to give death threats and use Caste coloured abuses. On 10.12.2019 at around 10 am, all these persons entered illegally in to four walls of her building and started hurling abuses on myself and my labourers and gave death threats and used castes’ remarks/abuses and took away the construction material such as Cement, Iron, Rod, Bricks. The Applicant is a Scheduled Caste and all of the above person uses castes’ remarks/abuses (used bad language) and said that you are persons of bad caste and that we will not let you live in this mohalla/vicinity. Respect Sir, the applicant and her family has threat to her life from such persons. Thus, it is requested that an FIR may be lodged against such persons and necessary action may be taken against them…..” 3. 4. Pursuant to the FIR filed by Respondent No. 2, Police filed a report disclosing offences under Sections 504, 506 IPC and Section 3(1)(x) of the Act, cognizance for the same was taken by the Trial Court on 25.6.2020. It is the said order which was challenged along with the charge-sheet before the High Court, which was unsuccessful. On the other hand, on the basis of the statement of Mr. Pawan Verma, an FIR No. 174 at about 23:47 hours was lodged on 2 For short, “the Act”. 2 5. 11.12.2019 in respect of an occurrence which had taken place allegedly at 9:45 hours on 11.12.2019. A charge-sheet in the said matter has been submitted against respondent No. 2 and others. Thereafter, the learned Chief Judicial Magistrate, Pithoragarh had taken cognizance for the offences under Sections 323 and 354 IPC against respondent No. 2 and others on 2.7.2020. The Appellant invoked the jurisdiction of the High Court by way of a petition under Section 482 of the Code to challenge the charge- sheet and the order taking cognizance. The Appellant relied upon <cite>Gerige Pentaiah v. State of Andhra Pradesh & Ors.3</cite> wherein the allegation was of abusing the complainant in the name of their caste and this Court quashed the complaint. The attention of the High Court was drawn to another judgment reported as <cite>Ashabai Machindra Adhagale v. State of Maharashtra & Ors.4</cite> wherein this Court refused to quash the FIR on the ground that the caste of the accused was not mentioned in the first information report. The High Court found that both the abovementioned cases dealt with the same issue with regard to applicability of the provisions of the Act. It was observed by the High Court that the appellant had categorically admitted that the informant belonged to Scheduled Caste and that she and her labourers were abused. Therefore, the provisions of the Act were found to be applicable and accordingly, after investigation, charge-sheet has been submitted. The High Court dismissed the petition with the aforesaid findings. 3 4 (2008) 12 SCC 531 (2009) 3 SCC 789 3 6. 7. 8. The learned counsel for the appellant argued that the disputes relating to the property are pending before the Civil Court and that, the present FIR has been filed on patently false grounds by respondent No. 2 only to harass the appellant and to abuse the process of law. It is argued that the allegations levelled in the FIR and the subsequent report submitted by the Police after investigations does not disclose any offence under the Act. Furthermore, it is argued that the report neither discloses the caste of the informant nor the allegations are that they were made in public view. Also, the offending words are not purported to be made for the reason that the informant is a person belonging to Scheduled Caste. The learned counsel for the State on the contrary, submitted that during investigations, certain persons have supported the version of the informant. It is argued on behalf of respondent No. 2 that in fact the appellant and his family are encroacher on the informant’s land. Therefore, the appellant was rightly not granted any indulgence by the High Court. Against the backdrop of these facts, it is pertinent to refer to the Statement of Objects and Reasons of enactment of the Act. It is provided as under: “Despite various measures to improve the socio- economic conditions of the Scheduled Castes and the Scheduled Tribes, they remain vulnerable. They are denied number of civil rights. They are subjected to 4 indignities, various offences, humiliations and harassment. They have, in several brutal incidents, been deprived of their life and property. Serious crimes are committed against them for various historical, social and economic reasons. 2. Because of the awareness created amongst the Scheduled Castes and the Scheduled Tribes through spread of education, etc., they are trying to assert their rights and this is not being taken very kindly by the others. When they assert their rights and resist practices of untouchability against them or demand statutory minimum wages or refuse to do any bonded and forced labour, the vested interests try to cow them down and terrorise them. When the Scheduled Castes and the Scheduled Tribes try to preserve their self- respect or honour of their women, they become irritants for the dominant and the mighty. Occupation and cultivation of even the Government allotted land by the Scheduled Castes and the Scheduled Tribes is resented and more often these people become victims of attacks by the vested interests. Of late, there has bene an increase in the disturbing trend of commission of certain atrocities like making the Scheduled Caste persons eat inedible substances like human excreta and attacks on and mass killings of helpless Scheduled Castes and the Scheduled Tribes and rape of women belonging to the Scheduled Castes and the Scheduled Tribes. Under the circumstances, the existing laws like the Protection of Civil Rights Act, 1955 and the normal provisions of the Indian Penal Code have been found to be inadequate to check these crimes. A special Legislation to check and deter crimes against them committed by non-Scheduled Castes and non-Scheduled Tribes has, therefore, become necessary.” 9. The long title of the Act is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and the Scheduled Tribes, to provide for Special Courts and Exclusive Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matters connected therewith or incidental thereto. 5 10. The Act was enacted to improve the social economic conditions of the vulnerable sections of the society as they have been subjected to various offences such as indignities, humiliations and harassment. They have been deprived of life and property as well. The object of the Act is thus to punish the violators who inflict indignities, humiliations and harassment and commit the offence as defined under Section 3 of the Act. The Act is thus intended to punish the acts of the upper caste against the vulnerable section of the society for the reason that they belong to a particular community. 11. It may be stated that the charge-sheet filed is for an offence under Section 3(1)(x) of the Act. The said section stands substituted by Act No. 1 of 2016 w.e.f. 26.1.2016. The substituted corresponding provision is Section 3(1)(r) which reads as under: “3(1)(r) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view;” 12. 13. The basic ingredients of the offence under Section 3(1)(r) of the Act can be classified as “1) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe and 2) in any place within public view”. The offence under Section 3(1)(r) of the Act would indicate the ingredient of intentional insult and intimidation with an intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe. 6 All insults or intimidations to a person will not be an offence under the Act unless such insult or intimidation is on account of victim belonging to Scheduled Caste or Scheduled Tribe. The object of the Act is to improve the socio-economic conditions of the Scheduled Castes and the Scheduled Tribes as they are denied number of civil rights. Thus, an offence under the Act would be made out when a member of the vulnerable section of the Society is subjected to indignities, humiliations and harassment. The assertion of title over the land by either of the parties is not due to either the indignities, humiliations or harassment. Every citizen has a right to avail their remedies in accordance with law. Therefore, if the appellant or his family members have invoked jurisdiction of the civil court, or that respondent No.2 has invoked the jurisdiction of the civil court, then the parties are availing their remedies in accordance with the procedure established by law. Such action is not for the reason that respondent No.2 is member of Scheduled Caste. 14. Another key ingredient of the provision is insult or intimidation in “any place within public view”. What is to be regarded as “place in public view” had come up for consideration before this Court in the judgment reported as <cite>Swaran Singh & Ors. v. State</cite> through Standing Counsel & Ors.5. The Court had drawn distinction between the expression “public place” and “in any place within public view”. It was held that if an offence is committed outside the building e.g. in a lawn outside a house, and the lawn can be seen 5 (2008) 8 SCC 435 7 by someone from the road or lane outside the boundary wall, then the lawn would certainly be a place within the public view. On the contrary, if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then it would not be an offence since it is not in the public view. The Court held as under: “28. It has been alleged in the FIR that Vinod Nagar, the first informant, was insulted by Appellants 2 and 3 (by calling him a “chamar”) when he stood near the car which was parked at the gate of the premises. In our opinion, this was certainly a place within public view, since the gate of a house is certainly a place within public view. It could have been a different matter had the alleged offence been committed inside a building, and also was not in the public view. However, if the offence is committed outside the building e.g. in a lawn outside a house, and the lawn can be seen by someone from the road or lane outside the boundary wall, the lawn would certainly be a place within the public view. Also, even if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then also it would be an offence since it is in the public view. We must, therefore, not confuse the expression “place within public view” with the expression “public place”. A place can be a private place but yet within the public view. On the other hand, a public place would ordinarily mean a place which is owned or leased by the Government or the municipality (or other local body) or gaon sabha or an instrumentality of the State, and not by private persons or private bodies.” 15. As per the FIR, the allegations of abusing the informant were within the four walls of her building. It is not the case of the informant that there was any member of the public (not merely relatives or friends) at the time of the incident in the house. Therefore, the basic ingredient that the words were uttered “in any place within 8 public view” is not made out. In the list of witnesses appended to the charge-sheet, certain witnesses are named but it could not be said that those were the persons present within the four walls of the building. The offence is alleged to have taken place within the four walls of the building. Therefore, in view of the judgment of this Court in Swaran Singh, it cannot be said to be a place within public view as none was said to be present within the four walls of the building as per the FIR and/or charge-sheet. 16. There is a dispute about the possession of the land which is the subject matter of civil dispute between the parties as per respondent No.2 herself. Due to dispute, appellant and others were not permitting respondent No.2 to cultivate the land for the last six months. Since the matter is regarding possession of property pending before the Civil Court, any dispute arising on account of possession of the said property would not disclose an offence under the Act unless the victim is abused, intimated or harassed only for the reason that she belongs to Scheduled Caste or Scheduled Tribe. 17. In another judgment reported as <cite>Khuman Singh v. State of Madhya Pradesh6</cite>, this Court held that in a case for applicability of Section 3(2)(v) of the Act, the fact that the deceased belonged to Scheduled Caste would not be enough to inflict enhanced punishment. This Court held that there was nothing to suggest that the offence was committed by the appellant only because the deceased belonged to Scheduled Caste. The Court held as under: 6 2019 SCC OnLine SC 1104 9 “15. As held by the Supreme Court, the offence must be such so as to attract the offence under Section 3(2)(v) of the Act. The offence must have been committed against the person on the ground that such person is a member of Scheduled Caste and Scheduled Tribe. In the present case, the fact that the deceased was belonging to “Khangar”-Scheduled Caste is not disputed. There is no evidence to show that the offence was committed only on the ground that the victim was a member of the Scheduled Caste and therefore, the conviction of the appellant-accused under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is not sustainable.” 18. Therefore, offence under the Act is not established merely on the fact that the informant is a member of Scheduled Caste unless there is an intention to humiliate a member of Scheduled Caste or Scheduled Tribe for the reason that the victim belongs to such caste. In the present case, the parties are litigating over possession of the land. The allegation of hurling of abuses is against a person who claims title over the property. If such person happens to be a Scheduled Caste, the offence under Section 3(1)(r) of the Act is not made out. 19. This Court in a judgment reported as <cite>Dr. Subhash Kashinath Mahajan v. State of Maharashtra & Anr.7</cite> issued certain directions in respect of investigations required to be conducted under the Act. In a review filed by the Union against the said judgment, this Court in a judgment reported as <cite>Union of India v. State of Maharashtra & Ors.8</cite> reviewed the directions issued by this Court and held that if there is a false and unsubstantiated FIR, 7 8 (2018) 6 SCC 454 (2020) 4 SCC 761 10 the proceedings under Section 482 of the Code can be invoked. The Court held as under: “52. There is no presumption that the members of the Scheduled Castes and Scheduled Tribes may misuse the provisions of law as a class and it is not resorted to by the members of the upper castes or the members of the elite class. For lodging a false report, it cannot be said that the caste of a person is the cause. It is due to the human failing and not due to the caste factor. Caste is not attributable to such an act. On the other hand, members of the Scheduled Castes and Scheduled Tribes due to backwardness hardly muster the courage to lodge even a first information report, much less, a false one. In case it is found to be false/unsubstantiated, it may be due to the faulty investigation or for other various reasons including human failings irrespective of caste factor. There may be certain cases which may be false that can be a ground for interference by the Court, but the law cannot be changed due to such misuse. In such a situation, it can be taken care of in proceeding under Section 482 CrPC.” 20. Later, while examining the constitutionality of the provisions of the Amending Act (Central Act No. 27 of 2018), this Court in a judgment reported as <cite>Prathvi Raj Chauhan v. Union of India & Ors.9</cite> held that proceedings can be quashed under Section 482 of the Code. It was held as under: “12. The Court can, in exceptional cases, exercise power under Section 482 CrPC for quashing the cases to prevent misuse of provisions on settled parameters, as already observed while deciding the review petitions. The legal position is clear, and no argument to the contrary has been raised.” 21. In Gerige Pentaiah, one of the arguments raised was non- disclosure of the caste of the accused but the facts were almost 9 (2020) 4 SCC 727 11 similar as there was civil dispute between parties pending and the allegation was that the accused has called abuses in the name of the caste of the victim. The High Court herein has misread the judgment of this Court in Ashabai Machindra Adhagale as it was not a case about the caste of the victim but the fact that the accused was belonging to upper caste was not mentioned in the FIR. The High Court of Bombay had quashed the proceedings for the reason that the caste of the accused was not mentioned in the FIR, therefore, the offence under Section 3(1)(xi) of the Act is not made out. In an appeal against the decision of the Bombay High Court, this Court held that this will be the matter of investigation as to whether the accused either belongs to or does not belong to Scheduled Caste or Scheduled Tribe. Therefore, the High Court erred in law to dismiss the quashing petition relying upon later larger Bench judgment. The appellant had sought quashing of the charge-sheet on the ground that the allegation does not make out an offence under the Act against the appellant merely because respondent No. 2 was a Scheduled Caste since the property dispute was not on account of the fact that respondent No. 2 was a Scheduled Caste. The property disputes between a vulnerable section of the society and a person of upper caste will not disclose any offence under the Act unless, the allegations are on account of the victim being a Scheduled Caste. Still further, the finding that the appellant was aware of the caste of the informant is wholly inconsequential as the 12 22. knowledge does not bar, any person to protect his rights by way of a procedure established by law. 23. This Court in a judgment reported as <cite>Ishwar Pratap Singh & Ors. v. State of Uttar Pradesh & Anr.10</cite> held that there is no prohibition under the law for quashing the charge-sheet in part. In a petition filed under Section 482 of the Code, the High Court is required to examine as to whether its intervention is required for prevention of abuse of process of law or otherwise to secure the ends of justice. The Court held as under: “9. Having regard to the settled legal position on external interference in investigation and the specific facts of this case, we are of the view that the High Court ought to have exercised its jurisdiction under Section 482 CrPC to secure the ends of justice. There is no prohibition under law for quashing a charge-sheet in part. A person may be accused of several offences under different penal statutes, as in the instant case. He could be aggrieved of prosecution only on a particular charge or charges, on any ground available to him in law. Under Section 482, all that the High Court is required to examine is whether its intervention is required for implementing orders under the Criminal Procedure Code or for prevention of abuse of process, or otherwise to secure the ends of justice. A charge-sheet filed at the dictate of somebody other than the police would amount to abuse of the process of law and hence the High Court ought to have exercised its inherent powers under Section 482 to the extent of the abuse. There is no requirement that the charge-sheet has to be quashed as a whole and not in part. Accordingly, this appeal is allowed. The supplementary report filed by the police, at the direction of the Commission, is quashed.” 24. In view of the above facts, we find that the charges against the appellant under Section 3(1)(r) of the Act are not made out. Consequently, the charge-sheet to that extent is quashed. The 10 (2018) 13 SCC 612 13 appeal is disposed of in the above terms. 25. The FIR in respect of other offences will be tried by the competent Court in accordance with law along with the criminal case11, though separately initiated, for the reason that it relates to interparty dispute and is in respect of same subject matter of property, despite of the fact that two different dates of the incident have been provided by the parties.

In the present appeals, the appellants have come to this Court, being aggrieved by the judgment and order dated 6th February 2023, passed by the Division Bench of the High Court of Judicature at Patna vide which the judgment and 1 order 17th February 2020 passed by the learned Single Judge of the High Court dismissing the writ petitions filed by the respondents herein has been reversed. 3. These appeals arise out of the peculiar facts and circumstances. 4. The parties are referred to herein as they are referred to in the original writ petition being CWJC No. 22943 of 2018. 5. The erstwhile Bihar Intermediate Education Council (hereinafter referred to as the ‘Council’) had gone for computerization and in pursuance thereof, the N.I.C.T. Computering System Private Limited was engaged for computerization work on contract basis. 6. The original writ petitioners were initially taken on service by N.I.C.T. and sent to the said Council for computerization work. They continued to work for the Council as employees of the said N.I.C.T. from 1999 to 2005. 7. Since the writ petitioners were working for a period of almost six years, the Council requested the Government to create different posts in the Computer Section of the Council. Accordingly, 63 posts came to be sanctioned in different grades. In the meanwhile, the contract between N.I.C.T. and 2 the Council came to be terminated in the year 2005. However, the respondents, who were earlier employees of the N.I.C.T. came to be appointed against the sanctioned posts by the Chairman of the Council. 8. Subsequently, the Government of Bihar decided to amalgamate Bihar School Education Examination Board along with the said Council. Accordingly, the Bihar Intermediate Education Council (Repeal) Act, 2007 (hereinafter referred to as the “said Act”) was enacted. As per the said Act, the Government of Bihar constituted a Committee of three Secretaries to formulate the scheme for regularization of the services of the employees, who were working in the said Council. 9. A scheme came to be framed for regularization under the Government Resolution dated 12th July 2012. It appears that, in terms of the said scheme, the services of the writ petitioners came to be terminated on 18th August 2017. Being aggrieved thereby, the writ petitioners filed the writ petition being CWJC No.12242 of 2017 before the High Court. The learned Single Judge, vide order dated 18th May 2018 partly allowed the writ petition and directed the State 3 Government to take a decision with regard to absorption of the services of the writ petitioners. Vide order dated 9th October 2018, the claim of the writ petitioners for regularization in service came to be rejected by the Education Department. Being aggrieved thereby, the CWJC No.22943 of 2018 was filed. The learned Single Judge, vide order dated 17th February 2020 dismissed the same. Being aggrieved thereby, a Letters Patent Appeal being No. 180 of 2021 was filed before the High Court by the original writ petitioners. The same was allowed by the Division Bench of the High Court. Hence, the present appeals. 10. We have heard Mr. Shyam Divan, learned Senior Counsel appearing on behalf of the appellants and Shri Dinesh Dwivedi, learned Senior Counsel appearing on behalf of the respondents-employees (writ petitioners). 11. Shri Shyam Divan submits that the reasoning given by the Division Bench of the High Court is totally perfunctory. He submits that the learned Single Judge, by an elaborate well-reasoned order, found that the writ petitioners were not entitled for absorption. He further submits that as per the scheme, four conditions were required to be fulfilled and the 4 writ petitioners did not comply with the said conditions. Finding this, the learned Single Judge dismissed the writ petition. He submits that the Division Bench, however, on a ground that, the report of the Committee was signed by only one member and not all the three members, has erroneously reversed the well-reasoned order passed by the learned Single Judge. He further submits that the personal affidavit filed by the Additional Chief Secretary of the State Government dated 6th December 2022 would reveal that the report of the Committee was accepted by the Cabinet of the State of Bihar and as such, the reasoning that, the report was not signed by all the three officers, is totally without substance. 12. Shri Dinesh Dwivedi, on the contrary, submits that the writ petitioners have been continuously working from 1999 till 2017. He submits that the writ petitioners have continuously worked for a period of almost 18 years. He submits that all the writ petitioners complied with all the four conditions, as stipulated in the Scheme of 2012. He further submits that the learned Single Judge, in the first round of litigation, has also found that the writ petitioners 5 complied with all the four conditions. 13. In the peculiar facts and circumstances, we are not inclined to go into the legal issues. At the outset, we may say that we are not satisfied with the manner in which the Division Bench has dealt with the matter in the present litigation. When the Division Bench was considering the well-reasoned order passed by the learned Single Judge, the least that was expected of it was to give reasonings as to why it disagreed with the findings given by the learned Single Judge. 14. Insofar as the finding of the Division Bench that the report was not signed by three members is concerned, it ought to have taken into consideration that much water had flown subsequently, inasmuch as the affidavit of the Additional Chief Secretary dated 6th December 2022 would have shown that the report of the Committee was accepted by the State Government, which was fructified in the scheme dated 12th July 2012, which was published in the gazette notification. As such, the High Court, at the most could have examined the correctness of the scheme as notified in the gazette notification. It appears that the Division Bench 6 found an easy way to deal with the litigation. 15. In any case, if the directions as issued by the Division Bench are to be complied with, it will lead to more than one complications. The Division Bench has granted liberty to the State Government to again start the process and in the meantime directed the writ petitioners to be taken back to work. It has further directed honorary benefits to be calculated and disbursed for the intervening period. 16. We are of the considered view that if the order, as passed by the Division Bench, is permitted to continue, it will give rise to third round of litigation and would not provide any solace to the employees, who have been fighting for justice from 2017. 17. The facts as recorded hereinabove would clearly show that the writ petitioners have been working since 1999 continuously in the said Council, may be initially from 1999 to 2005 they were working as employees of N.I.C.T. However, undisputedly they were working for the Council. 18. Subsequently, on account of the posts being sanctioned by the State for the Council and the contract between the Council and N.I.C.T. being terminated, they were absorbed 7 on the posts so sanctioned by the State Government. Undisputedly, the appointment was issued by the Chairman of the said Council, who was the competent authority. 19. On account of subsequent fortuitous development i.e. the merger of the Council with the Board, the petitioners became surplus and a scheme was required to be evolved for their absorption/regularization. Finally, a scheme was finalized and notified in the Official Gazette on 12th July 2012. 20. Even after the scheme was notified in the year 2012, the writ petitioners were permitted to continue to work till 2017 and only in the year 2017, their services came to be terminated. 21. It could thus be seen that the writ petitioners have been continuously working since 1999 i.e. much before the judgment in the case of <cite>Secretary, State of Karnataka and Ors. v. Uma Devi (3) and Others1</cite>, was delivered on 10th April 2006. 22. Uprooting the writ petitioners at this stage of life would have devastating effects on them as well as on their families. 1 (2006) 4 SCC 1 8 23. In that view of the matter, we find that, in the present case, taking into consideration the peculiar facts and circumstances of the case and without this being treated as a precedent in any manner, a relief needs to be moulded so as to do complete justice. 24. We are, therefore, inclined to exercise our extraordinary powers under Article 142 of the Constitution of India and directed thus: “The writ petitioners shall be absorbed on the posts on which they are appointed in the year 2005. They would be permitted to rejoin with effect from 1st May 2023. Though the writ petitioners would be entitled to continuity in service for all the purposes including retiral benefits, they would not be entitled for any backwages for the period during which they were out of employment.” 25. The appeals are disposed of in the above terms. Pending application(s), if any, shall stand disposed of. 9

There was delay of 2659 and 3017 days in preferring the special leave petitions. Since there was no satisfactory explanation for delay, the petitions were dismissed on the ground of limitation, which order is now subject matter of the instant review petition. We have gone through the grounds raised in the instant review petition and do not find any error apparent on record to justify interference. This review petition is, therefore, dismissed.

1 These proceedings have been initiated under Article 32 of the Constitution by a purchaser, seeking directions in respect of a real estate project called “Sushant Megapolis”, which is being developed by the fifth, sixth and seventh respondents. The reliefs which have been sought, while invoking the jurisdiction of this Court under Article 32, as noted above, are in the following terms: “i. ii. …a writ in the nature of Mandamus directing the Respondent No. 1 & 2 to cancel all the agreements with respondent no.5,6 & 7 and to ensure that all the projects in which money has been taken from the buyers their money is refunded or the same is constructed and handed over in a reasonable period of time; …a writ in the nature of Mandamus appointing a court receiver or form a committee headed by a retired judge of this Hon'ble Court along with other suitable persons from different fields to monitor / handle the projects of Respondent 6 & 7 in which money has been taken from the buyers; Iii. iv. v. vi. 2 …a writ of mandamus, or order or direction to conduct a detailed forensic audit for all the projects launched by respondent no. 5,6 & 7 in its project under the Flagship of "SUSHANT MEGAPOLIS"; …a writ in the nature of mandamus or order or direction to conduct investigation by the CBI-Central Bureau of Investigation of the large scale fraud and cheating done by the officers of respondent no. 1 together with officers and directors of respondent no. 5,6 & 7 as the state agency has completely failed in its duty to investigate the matter; …writ order or direction to direct all investigation agencies such as Serious Fraud Investigation Office, Enforcement Directorate and others to investigate the money siphoned off by the respondent no. 5, 6 & 7. …any other writ, order or direction in favour of the Petitioner and such similarly placed persons, as this Hon'ble court may deem fit and proper in the circumstances of the case.” 2 3 1 The above extract would indicate that the primary relief which has been sought is (i) cancellation of all the agreements; (ii) refund of moneys to purchasers; and in the alternative (iii) ensuring that the construction is carried out and that the premises are handed over within a reasonable period of time. Incidental to the above reliefs, the petitioner seeks the constitution of a Committee headed by a former Judge of this Court together with other persons to monitor and handle the projects of the developer in the present case. The petitioner also seeks a forensic audit, an investigation by CBI and by other authorities such as the Serious Fraud Investigation Office and Enforcement Directorate. Mr Manoj V George, learned counsel appearing on behalf of the petitioner, submits that, in another project of the developer which is being implemented at Lucknow, notice was issued on a petition under Article 32 of the Constitution (<cite>Pawan Kumar Kushwaha and Ors. v Lucknow Development Authority and Ors.1) on 20 November 2020 by a two-Judge Bench of this Court</cite> of which one of us was a member. On the above grounds, it has been submitted that it Writ Petition (Civil) No 1001 of 2020 3 would be appropriate for this Court to issue notice and tag the writ petition under Article 32 with the earlier proceedings. 4 On 7 January 2021, a three-Judge Bench of this Court [of which one of us was a member] has dealt with the maintainability of a petition under Article 32 in similar circumstances. In <cite>Shelly Lal v Union of India 2</cite>, this Court declined to entertain the petition. The order of the Court is extracted below: “ ORDER 1 A proposed construction project at NOIDA which did not take off from the drawing board has given rise to proceedings under Article 32 of the Constitution by twenty five purchasers of commercial premises. Invoking the jurisdiction under Article 32, the petitioners 2 have sought, inter alia, the following directions: (i) A writ, order or direction to the respondents to protect the interests and investments of customers/buyers in the larger public interest; (ii) A writ, order or direction for the revival of the project failing which the amounts invested by the petitioners be returned with interest at the rate of 18% per annum; and (iii) A court-monitored probe. 3 Having considered the cause which has been espoused by the petitioners through their counsel, Mr Shikhil Suri, we are of the view that the exercise of the jurisdiction under Article 32 of the Constitution would not be warranted in the facts of the present case. Essentially, the writ petition requires the Court to step 4 into the construction project and to ensure that it is duly completed. This would be beyond the remit and competence of the Court under Article 32. Managing a construction project is not within the jurisdiction of the court. 5. Several provisions of law confer statutory rights on purchasers of real estate and invest them with remedies enforceable at law. These include the Consumer Protection Act 1986, the Real Estate (Regulation and Development) Act 2016 and the Insolvency and Bankruptcy Code 2016. Parliament has 2 Writ Petition (Civil) No 1390 of 2020 4 enacted a statutory regime to protect the rights of purchasers of real estate and created fora which are entrusted with decision making authority. 6. A decision of a public authority which is entrusted with a public duty is amenable to judicial review. But it is quite another hypothesis to postulate that the decision making authority should be taken over by the court. The latter is impermissible. It would be inappropriate for this Court to assume the jurisdiction to supervise the due completion of a construction project especially in facts such as those presented in the present case. This will inevitably draw the court into the day to day supervision of the project, including financing, permissions and execution – something which lies beyond the ken of judicial review and the competence of the court. The court must confine itself to its core competencies which consist in the adjudication of disputes amenable to the application of legal standards. We, consequently, leave it open to the petitioners to pursue the remedies available in law. [sic 7]The writ petition is disposed of, subject to the 5 aforesaid liberty. 6 [sic 8] Pending application, if any, stands disposed of.” 5 A definitive view on whether it would be appropriate for the Court to entertain a petition under Article 32 seeking prayers similar to those sought in the instant case has been taken in the above terms. The above reasons would ex facie apply to the facts of the present case. The reliefs which have been extracted earlier would involve the Court in an adjudicative process in determining whether (i) all the agreements should be cancelled; (ii) whether money which is paid by the home buyers should be refunded; or in the alternative (iii) whether judicial directions are necessary to ensure that the project is constructed and the premises are handed over within a reasonable time. The writ petition under Article 32 has been filed by a singular home buyer without seeking to represent the entire class of home buyers. The petition proceeds on the implicit assumption that the interest of all the buyers are identical. There is no basis to make such an assumption. All buyers may not seek a cancellation and refund of consideration. Apart from this aspect, the petitioner seeks other reliefs in aid of the primary relief, including the constitution of a Committee presided over by a 5 former Judge of this Court for the purpose of handling the projects of the developer where moneys have been taken from home buyers. Following the earlier view which has been taken on 7 January 2021, we are of the considered opinion that it would be inappropriate to entertain a petition under Article 32 for more than one reason. There are specific statutory provisions holding the field, including among them: (i) (ii) The Consumer Protection Act 19863 and its successor legislation; The Real Estate (Regulation and Development) Act 20164; and (iii) The Insolvency and Bankruptcy Code 20165. Each of these statutory enactments has been made by Parliament with a specific purpose in view. The 1986 Act as well as the subsequent legislation contain provisions for representative consumer complaints. One or more home buyers can consequently seek relief to represent a common grievance for a whole class of purchasers of real estate. The RERA similarly contains specific provisions and remedies for dealing with the grievance of purchasers of real estate. The provisions of the IBC have specifically taken note of the difficulties which are faced by home buyers by providing for remedies within the fold of the statute. Entertaining a petition of this nature will involve the Court in virtually carrying out a day to day supervision of a building project. Appointing a Committee presided over by a former Judge of this Court would not resolve the problem because the Court will have nonetheless to supervise the Committee for the reliefs sought in the petition under Article 32. Insofar as the remedies of a “1986 Act” “RERA” “IBC” 6 7 8 3 4 5 6 criminal investigation are concerned, there is reason for this Court not to entertain a petition directly under Article 32 in the present set of facts. Adequate remedies are available in terms of the Code of Criminal Procedure 1973. The statutory procedures which are enunciated have to be invoked. Adequate provisions have been made in the statute to deal with the filing of a complaint and for investigation in accordance with law. Judicial intervention is provided at appropriate stages by competent courts in that regard. In <cite>Devendra Dwivedi v. Union of India and Ors.6, a three-Judge Bench</cite> of this Court [of which one of us was a member] held that, determining “whether recourse to the jurisdiction under Article 32 be entertained in a particular case is a matter for the calibrated exercise of judicial discretion.” It was further held that this remedy cannot be used as a ruse to flood this Court with petitions that must be filed before the competent authorities set up pursuant to the appropriate statutory framework. In view of the statutory framework, both in terms of civil and criminal law and procedure, we are of the view that entertaining a petition under Article 32 would be inappropriate. The Court has no reason to doubt the genuineness of the grievance which has been espoused by the petitioner. However, the issue is whether his recourse to Article 32 is the correct remedy when alternative modalities are available and particularly since the engagement of the Court in a petition of this nature would involve a supervision which does not lie within the province of judicial review. Real estate projects across the country may be facing difficulties. The intervention of the Court cannot be confined to one or a few selected projects. Judicial time is a precious resource which needs to be zealously guarded. We have to always be mindful of the opportunity cost involved in exercising our discretion to admit a petition and to intervene, in terms of diversion of time and resources away from other matters where our intervention would be more apposite and necessary. In certain cases 6 Writ Petition (Criminal) 272 of 2020 in the past, this court has intervened on behalf of home buyers. These include : 7 (i) (ii) Projects of <cite>Amrapali Group (Bikram Chatterji v Union of India7)</cite>; and Unitech matter (<cite>Bhupinder Singh v Unitech Ltd8</cite>). Nothing contained in the present judgment will affect those proceedings or similar cases which have been monitored. In the present case, there is no reason to assume that the petitioner represents a class, apart from the other reasons set out earlier for declining intervention. Hence, on a considered view and for the reasons we have indicated above, we decline to entertain the petition under Article 32. However, in terms of the order dated 7 January 2021, we clarify that this will not come in the way of the petitioner espousing the remedies which are available to him under the relevant statutory provisions. 9 Subject to the aforesaid clarification, the petition shall stand disposed of. The petition is disposed of in terms of the signed reportable judgment. Pending application, if any, stands disposed of.

1 On 22 February 2023, the Council of Ministers of the Government of Punjab recommended the summoning of the Budget Session of the Sixteenth Punjab Vidhan Sabha on 3 March 2023 under Article 174(1) of the Constitution. 2 On 23 February 2023, the Governor of Punjab addressed a communication to the Chief Minister of the State. The subject of the letter was: WP(C) 302/2023 3 4 2 “Cabinet decision on summoning of the house of the legislature of the State on 3rd March 2023.” The letter of the Governor refers to a prior exchange of correspondence between the Governor and the Chief Minister; the Governor having addressed an earlier communication of 13 February 2023 to which the Chief Minister had responded through a letter dated 14 February 2023 and a ’tweet’ of the same date. In his communication of 13 February 2023 to the Chief Minister, the Governor highlighted his concern on certain specific issues, namely: (i) The basis on which Principals were selected for being sent to Singapore for training; and (ii) The appointment of the Chairman of the Punjab Information and Communication Technology Corporation Limited. The Governor noted that while the Chief Minister had 5 in his previous correspondence underscored the mandate with which he has assumed the office of Chief Minister, in terms of Article 167 of the Constitution, the Chief Minister is bound to furnish full details and information sought by the Governor. 6 Besides the above two issues, the Governor sought a clarification on the following matters: “(a) About two lacs Scheduled Castes students were compelled 3 to discontinue their studies due to non disbursal of scholarship by the Government. (letter No.Spl.Secy.Gov/2022/95 dated 21-07-2022). To remove the illegally appointed Vice Chancellor of PAU vide letter No.5/1/2021-PRB-PAU-2G/6904 dated 23-11-22. Inspite of my detailed letter dated 14-12-2022 you chose to ignore all misdeeds of Sh. Kuldeep Singh Chahal, IPS. You have not only promoted him but also posted him as Commissioner of Jalandhar and that too the orders being issued just before 26th January, knowing very well that Governor is to unfurl the national flag at Jalandhar. I had to instruct the DGP that concerned officer should maintain distance during ceremony. On this issue it seems that this officer was your blue eyed boy and you chose to ignore facts that were brought to your notice by this office. (d) Vide letter dated 4-1-2023 I wrote about the presence of Sh. Naval Aggarwal in meetings of senior officers, where sensitive and confidential matters of security of the country are discussed. I have not received any reply till date. (e) My letters asking for details of advertisements where you were asked for complete details, is also perhaps lying in cold storage.” WP(C) 302/2023 (b) (c) 7 8 Responding to the above communication, the Chief Minister (@ Bhagwant Mann) issued a tweet in the following terms: “Hon’ble Governor Sir, your letter was received through the media..all the subjects mentioned in the letter are all state subjects...I and my government are accountable to 3 crore Punjabis according to the Constitution and not to any Governor appointed by the Central Government. Consider this as my reply.” This was followed by another communication of the Chief Minister dated 14 February 2023, in which he stated thus: WP(C) 302/2023 9 4 “DO No.CMO/CONFI-2023/132 Dated:14.02.2023 Honorable Governor Sahib, I have received your letter No.Spl.Secy.Gov/2023/34 dated 13th February, 2023. All the subjects mentioned in your letter are the subjects of the state government. In this regard, I would like to clarify that according to the Indian Constitution, I and my government are answerable to 3 crore Punjabis. You have asked me, on what basis the principals are selected for training in Singapore. The people of Punjab want to ask, on what basis are the Governors in different states elected by the Central Government in the absence of any specific qualification in the Indian Constitution? Please increase the knowledge of Punjabis by telling this.” In the backdrop of the aforesaid communication by the Chief Minister and his tweet, the Governor while responding to the request of the Cabinet for summoning the Budget Session of the Vidhan Sabha from 3 March 2023 stated that: “ Since your tweet and letter, both are not only patently unconstitutional but extremely derogatory also, therefore, I am compelled to take legal advice on this issue. Only after getting legal advice, I will take decision on your request”. 10 The inaction of the Governor in summoning the Assembly for the Budget Session has led to the invocation of the jurisdiction of this Court under Article 32 of the Constitution by the State of Punjab. WP(C) 302/2023 5 11 The Government of Punjab seeks (a) a declaration that the Governor of Punjab is duty bound to act on the aid and advice of the Council of Ministers in matters of summoning or proroguing of the Vidhan Sabha of the State of Punjab; (b) a writ of certiorari quashing the communication of the Governor dated 23 February 2023 stating that a decision on the recommendation of the Council of Ministers for summoning the Vidhan Sabha for its Budget Session would be taken only after obtaining legal advice; and (c) a direction to the Principal Secretary to the Governor of Punjab to facilitate the issuance of appropriate orders for summoning the Legislative Assembly for its Budget Session at 10 am on 3 March 2023. 12 Since the date for the convening of the Budget Session is barely three days away, the petition was mentioned for urgent orders, on which it was directed to be listed at 3.50 pm today. 13 Dr Abhishek Manu Singhvi, senior counsel has appeared on behalf of the petitioner. Mr Tushar Mehta, Solicitor General of India appears on behalf of the first respondent. Mr Ajay Pal, counsel has appeared for the second respondent. 14 At the outset, the Solicitor General has placed on the record an order dated 28 February 2023 of the Governor of Punjab. For convenience of reference, the order is extracted below: “In exercise of the powers conferred upon me by virtue of WP(C) 302/2023 6 Clause(1) of Article 174 of the Constitution of India, I, Banwarilal Purohit, Governor of Punjab, hereby summon the Sixteenth Vidhan Sabha of the State of Punjab to meet for its Fourth (Budget) Session at 10.00 am on Friday, the 3rd March 2023 in the Punjab Vidhan Sabha Hall, Vidhan Bhavan, Chandigarh.” 15 In terms of the above order, the Governor of Punjab has summoned the Sixteenth Vidhan Sabha of the State of Punjab to meet for its Fourth (Budget) Session at 10 am on 3 March 2023. 16 With the issuance of the above order by the Governor, the reliefs which have been sought in the petition have been substantially fulfilled. However, before disposing of the petition, there are certain facets which must be highlighted by this Court in the exercise of its constitutional duty. 17 The institution of these proceedings has its genesis in the communications issued by the Governor for the disclosure of information by the State government. Article 167 of the Constitution enunciates the duty of the Chief Minister to furnish information to the Governor. The provision is in the following terms: “167. Duties of Chief Minister as respects the furnishing of information to Governor, etc– It shall be the duty of the Chief Minister of each State– (a) to communicate to the Governor of the State all decisions of the Council of Ministers relating to the administration of the affairs of the State and proposals for legislation; (b) to furnish such information relating to the administration of the WP(C) 302/2023 7 affairs of the State and proposals for legislation as the Governor may call for; and if the Governor so requires, to submit for the consideration of the Council of Ministers any matter on which a decision has been taken by a Minister but which has not been considered by the Council.” (c) 18 19 The Chief Minister has the duty to communicate to the Governor all decisions of the Council of Ministers relating to the administration of the affairs of the State and proposals for legislation. Going beyond the duty to communicate, the Chief Minister has a duty to furnish such information relating to the administration of the affairs of the State and proposals for legislation as the Governor may require. Moreover, if the Governor so requires, the Chief Minister is duty bound to submit for consideration to the Council of Ministers any matter on which the decision is taken by a Minister which has not been considered by the Council of Ministers. The power of the Governor to seek information under Article 167 must be read holistically with reference to their duties as constitutional head under the Constitution. The information that the Governor seeks under Article 167 would enable them to effectively discharge their duties. To illustrate, the Governor has the power to direct reconsideration of bills that are passed in the assembly. For the Governor to make this decision, it is necessary that all the relevant information that would aid them in making the said decision must be made available. Similarly, the governor requires all relevant information to identify if a decision has been taken by a Minister individually without the consideration of the council. The WP(C) 302/2023 8 Governor might be unable to discharge their duty under Article 167(c) if the Chief Minister does not discharge their duty under Article 167(a) and Article 167 (b) by providing the Governor with relevant information as requested. Thus, the Chief Minister is required to discharge their duties under Article 167 to enable the Governor to effectively discharge their duties stipulated in the Constitution. The framers of the Constitution were prescient in incorporating the above provisions. They ensure that while on the one hand the administration of the State is entrusted to a democratically elected Chief Minister who heads the Council of Ministers, which in turn, owes collective responsibility to the state legislature, the Governor as a constitutional authority appointed by the President is entrusted with the duty to ensure a just, fair, and honest administration. In this context, it is important to refer to the speech of Dr. BR Ambedkar on Article 167 (draft Article 147) in the Constitution Assembly:1 “A distinction has been made between the functions of the Governor and the duties which the Governor has to perform. My submission is that although the Governor has no functions still, even the constitutional Governor, that he is, has certain duties to perform. His duties, according to me, may be classified in two parts. One is, that he has to retain the Ministry in office. Because the Ministry is to hold office during his pleasure, he has to see whether and when he should exercise his pleasure against the Ministry. The second duty which the Governor has, and must have, is to advise the Ministry, to warn the Ministry, to suggest to the Ministry an alternative and to ask for a reconsideration. I do not think that anybody in this House will question the fact that the Governor should have this duty cast upon him; otherwise, he would be an absolutely unnecessary functionary: no good at all: He is the representative not of a party, he is representative of the people as 1 Dr BR Ambedkar in response to Biswanath Das, Constituent Assembly of India Debates (Proceedings)- Volume VIII (2 June 1949) WP(C) 302/2023 20 9 a whole of the State. It is in the name of the people that he carries on the administration. He must see that the administration is carried on a level which may be regarded as good, efficient, honest administration. Therefore, having regard to these two duties which the Governor has namely, to see that the administration is kept pure, without corruption, impartial, and that the proposals enunciated by the Ministry are not contrary to the wishes of the people, and therefore to advise them, warn them and ask them to reconsider-I ask the House, how is the Governor in a position to carry out his duties unless he has before him certain information? I submit that he cannot discharge the constitutional functions of a Governor which I have just referred to unless he is in a position to obtain the information.” The power to summon, prorogue and dissolve the legislative assembly is enshrined in Article 174 of the Constitution which is extracted below: “174. Sessions of the State Legislature, prorogation and dissolution.– (1) The Governor shall form time to time summon the House or each House of the Legislature of the State to meet at such time and place as he thinks fit, but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session. (2) The Governor may from time to time– (a) prorogue the House or either House; (b) dissolve the Legislative Assembly.” 21 The decision of a seven-Judge Constitution Bench in <cite>Shamsher Singh vs State of Punjab2</cite> has laid down that the Governor is a constitutional or formal Head of the State and exercises powers and functions on the aid and advice of the Council 2 (1974) 2 SCC 831 WP(C) 302/2023 10 of Ministers. The relevant extracts from the decision make the position of law clear: “28. Under the Cabinet system of Government as embodied in our Constitution the Governor is the constitutional or formal head of the State and he exercises all his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion. 32. It is a fundamental principle of English Constitutional law that Ministers must accept responsibility for every executive act. In England the Sovereign never acts on his own responsibility. The power of the Sovereign is conditioned by the practical rule that the Crown must find advisers to bear responsibility for his action. Those advisers must have the confidence of the House of Commons. This rule of English Constitutional law is incorporated in our Constitution. The Indian Constitution envisages a Parliamentary and responsible form of Government at the Centre and in the States and not a Presidential form of Government. The powers of the Governor as the constitutional head are not different. 142. The extraordinary powers of legislation by ordinances, dispensing with enquiries against public servants before dismissal, declaration of emergency and imposition of President's rule by proclamation upon States, are vast powers of profound the power of summoning and significance. proroguing and dissolving the House of the People and returning Bills passed by the Parliament belongs to him. If only we expand the ratio of Sardari Lal and Jayantilal to every function which the various articles of the Constitution confer on the President or the Governor, Parliamentary democracy will become a dope and national elections a numerical exercise in expensive futility. We will be compelled to hold that there are two parallel authorities exercising powers of governance of the country, as in the dyarchy days, except that Whitehall is substituted by Rashtrapati Bhavan and Raj Bhavan. The Cabinet will shrink at Union and State levels in political and administrative authority and, having solemn regard to the gamut of his powers and responsibilities, the Head of State will be reincarnation of Her Majesty's Secretary of State for India, untroubled by even the British Parliament — a little taller in power than the American President. Such a distortion, by interpretation, it Indeed, even WP(C) 302/2023 11 appears to us, would virtually amount to a subversion of the structure, substance and vitality of our Republic, particularly when we remember that Governors are but appointed functionaries and the President himself is elected on a limited indirect basis. As we have already indicated, the overwhelming catena of authorities of this Court have established over the decades that the cabinet form of Government and the Parliamentary system have been adopted in India and the contrary concept must be rejected as incredibly allergic to our political genius, constitutional creed and culture.” (emphasis supplied) 22 This position was reiterated by a Constitution Bench in <cite>Nabam Rebia v. Dy. Speaker, Arunachal Pradesh Legislative Assembly3</cite>. In view of the constitutional provision and the judgments of this Court, there can be no manner of doubt that the authority which is entrusted to the Governor to summon the House or each House of the Legislature of the State is to be exercised on the aid and advice of the Council of Minsters. This is not a constitutional arena in which the Governor is entitled to exercise his own discretion. In the present case, the Governor was not summoning the House for the first time following a general election, but was advised by the Council of Ministers to convene the Budget Session, at the behest of a government which has been duly elected in the general election. Plainly, the Governor was duty bound to do so. 23 While responding to the request by the Council of Ministers for summoning the House, the communication of the Governor dated 23 February 2023 referred to the Cabinet decision. However, the Governor also referred to the tweet of the 3 (2016) 8 SCC 1 WP(C) 302/2023 12 Chief Minister and to his letter dated 14 February 2023 and then proceeded to state that since both the tweet and the letter were “patently unconstitutional” and “extremely derogatory”, he was compelled to take legal advice “on this issue” and that he would decide on the request thereafter. There was no occasion to seek legal advice on whether or not the Budget Session of the Legislative Assembly should be convened. The Governor was plainly bound by the advice tendered to him by the Council of Ministers. 24 Having said this, it would also be necessary to underscore that both the Chief Minister and the Governor are constitutional functionaries who have specified roles and obligations earmarked by the Constitution. The Governor has a right to seek information from the Chief Minister in terms of Article 167(b) on matters relating to the administration of the affairs of the State and proposals for legislation. Once such information is sought, the Chief Minister is duty bound to furnish it. The tone and tenor of the tweet and the letter by the Chief Minister leave much to be desired. Not furnishing the information which was sought by the Governor would be plainly in dereliction of the constitutional duty which is imposed on the Chief Minister in terms of Article 167(b). Yet on the other hand, WP(C) 302/2023 13 the dereliction of the Chief Minister to do so would not furnish a justification for the Governor not to comply with the constitutional obligation to summon the House for its Budget Session in terms of the advice which was tendered by the Council of Ministers. It was after the institution of the petition under Article 32 that the Assembly was summoned. 25 The genesis of the controversy has required the intervention of this Court at two distinct levels: first, to ensure that the constitutional duty of the Governor to act on the aid and advice of the Council of Ministers to summon the Legislative Assembly is fulfilled without delay or demur; and second, to ensure that the obligation of the Chief Minister to furnish information to the Governor in terms of Article 167(b) of the Constitution is fulfilled. There are two equally important aspects for the functioning of a parliamentary democracy. First, the failure of a constitutional authority to fulfill its obligation under a distinct provision of the Constitution does not furnish a justification to another to decline to fulfill its own constitutional obligation. Second, while this Court is cognizant of the importance of free speech and expression and the fundamental value embodied in Article 19(1)(a), it becomes necessary to emphasize that constitutional discourse has to be conducted with a sense of decorum and mature statesmanship. 26 Political differences in a democratic polity have to be worked upon and sorted out with a sense of sobriety and maturity. The dialogue between constitutional functionaries cannot degenerate into a race to the bottom. Unless these principles were to be borne in mind, the realization of constitutional values may WP(C) 302/2023 14 be placed in jeopardy. Such a situation emerged before this Court, leading to the institution of a petition under Article 32 of the Constitution for a direction to the Governor to summon the Legislative Assembly. It is inconceivable that the Budget Session of the Legislative Assembly would not be convened. We can only hope that mature constitutional statesmanship will ensure that such instances do not occur in the future as much as we reiterate our expectation that constitutional functionaries must be cognizant of the public trust in the offices which they occupy. The public trust which is entrusted to them is intended to sub-serve the cause of our citizens and to ensure that the affairs of the nation are conducted with a sense of equanimity so as to accomplish the objects of the Preamble to the Constitution. 27 With these observations, the Petition shall stand disposed of. 28 Pending applications, if any, stand disposed of.

1. 2. The appellants approached the High Court seeking freedom fighters' pension. The High Court declined the prayer of the appellants. Hence, these appeals. A few similarly situated persons had approached 3. this Court leading to the order dated 25th November, 2013 in Civil Appeal Nos. 10624-10636 of 2013. The Judgment reads as follows :- “1. Leave granted. 2. The appellants, in this batch of appeals, are calling in question the judgment and order passed by the High Court of Judicature at Bombay, Bench at Aurangabad in Writ Petition No. 2106/2008, WP No. 2107/2008, WP No. 2112/2008, WP No. 2123/2008, WP No. 2144/2008, WP No. 2146/2008, WP No. 2147/2008, WP No. 2148/2008, WP No. 2152/2008, WP No. 2153/2008, WP No. 2156/2008, WP No. 2164/2008, WP No. 2165/2008 dated 14.10.2011. By the impugned judgment and order, the High Court has affirmed the orders passed 3 by the State Government cancelling the pensionary benefits granted to the appellants, presumably by relying on the report of Justice Palkar Commission. 3. In the appeals so filed, it is specifically averred by the appellants that they are all senior citizens. They also submit that at this ripe age, if they are deprived of the pensionary benefits, they would not be in a position to eke out of their livelihood. They also submit that the freedom fighters pensionary benefit so granted by the State Government ought not to have been withdrawn by passing the order/(s) on subsequent dates. 4. Per contra, the learned counsel appearing for the State of Maharashtra submits that since the appellants had obtained the freedom fighters pension by producing forged documents, they are not entitled for grant of any pensionary benefits and, therefore, the State Government was justified in withdrawing the pensionary benefits so granted to them earlier. 5. We have heard the learned counsel appearing for the parties to the lis. 4 6. In our opinion, keeping in view the age of the appellants and also keeping in view the fact that at this old age, if small benefit that was already granted to them is withdrawn, it may be difficult for them to sustain themselves. In that view of the matter, in the peculiar facts and circumstances of the case, the impugned judgment and order passed by the High Court requires to be set aside. 7. Accordingly, we allow these appeals and set aside the impugned judgment and order passed by the High Court. We further direct that the pensionary benefits granted by the State Government will enure only to the benefit of the appellants and not to their legal heirs/representatives. After the bereavement of the appellant(s), the pensionary benefit so granted by the State Government will come to an end. 8. Since we have decided these appeals purely on facts and circumstances of each case, we clarify that this Judgment shall not be treated as a precedent in any other case. 5 9. We quantify the arrears from the date of cancellation of the pensionary benefits till date at Rs.3,000/- each payable to the appellants within three months from the date of receipt of a copy of this Court's order. No order as to costs.” 4. Having gone through the pleadings, we are of the view that in the peculiar facts of the case, in the interest of justice and for doing complete justice, a similar treatment is to be meted out to the appellants herein also. Accordingly, these appeals are disposed of in terms of the order as extracted above, making it further clear that the same may not be treated as a precedent. The civil appeals are disposed of in terms of the signed non-reportable Judgment. Pending Interlocutory Applications, if any, stand disposed of.

The question involved in the present matter is whether possession of land   has   been   taken   after   passing   of   award   on   21.7.2003   in   land acquisition proceedings initiated vide Notification dated 24.8.2000 issued under Section 4 of the Land Acquisition Act, 1894 for acquisition of land measuring   189.93   acres   for   the   development   and   utilisation   of   land   for residential, commercial and institutional area in Sector 57 of Gurgaon inter alia  at   village   Tigra.     On   the   date   of   passing   of   award,   according   to appellants,   possession   had   been   obtained   and   handed   over   to   the representative of Haryana Urban Development Authority (for short, ‘HUDA’) vide Rapat No.583.  The compensation has admittedly been collected by the respondent vide cheque no.191045 dated 31.7.2003. 3. The respondent herein filed a writ petition in the year 2015 in the 2 High Court of Punjab & Haryana at Chandigarh.   He has set up the case that he owned the land measuring two Kanal.  The same was acquired by the issuance of Notification under Section 4 of the Land Acquisition Act, 1894 and the award was also passed. Compensation has been obtained. However, the acquisition has lapsed as per provisions contained in Section 24(2)   of   the   Right   of   Fair   Compensation   and   Transparency   in   Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short, ‘the Act of 2013’),   as   the   possession   has   not   been   taken.     He   has   constructed residential houses and shops. 4. The High Court by the impugned judgment and order has held that the two constructed rooms existed admeasuring 15’x12’ and 18’x12’ with boundary   wall   in   Khasra   No.16//23/1/2(2­0).     Though   the   State   has claimed   that   the   possession   had   been   taken,   there   is   no   proof   that  the respondent was physically dispossessed.   The Act of 2013 has come into force on 1.1.2014.  The State may, if needed, acquire the property again for a   public   purpose.     The   development   has   not   been   undertaken   so   far. Owners of such land/property are entitled to compensation under the Act of 2013.  Direction has been issued to Land Acquisition Collector, Gurgaon to determine the total amount to be refunded by the respondent within one month.  Aggrieved by the same, the appeal has been preferred by the State of Haryana.   5. Dr. Monika Gosain, learned counsel appearing for the appellants has submitted that possession had been taken.  She has attracted the attention 3 of this Court to the Rapat dated 21.7.2003.  She has further submitted that in several decisions, this Court has held that mode of taking possession is by way of drawing of  panchnama  on the spot.   Admittedly, compensation has been paid to the respondent in the year 2003 itself.  The acquisition has attained finality and encroachment made thereafter is not going to help the respondent. 6. Mr.   Siddharth   Mittal   learned   counsel   appearing   for   the   respondent has submitted that there were two rooms in existence, of which possession has not been taken following the law. Paper possession cannot tantamount to taking physical possession.   The physical possession remains with the respondent. As such as mandated by  the provisions contained in Section 24(2)   of   the   Act   of   2013,   the   acquisition   has   lapsed.     He   has   further submitted that ‘the Policy for Return of Un­utilized Land’ has been framed under the provisions of Right to Fair Compensation and Transparency in Land  Acquisition, Rehabilitation  and Resettlement (Haryana Amendment) Act, 2017 and notified on 14.9.2018, by the State Government.  He has also submitted that on two sides of land in question in the case of similarly situated   landowners,   the   State   Government   has   already   passed   release orders   on   30.10.2006   and   21.2.2014.     The   respondent   cannot   be discriminated with.  He has also attracted the attention of this Court to the photographs (Annexure R­6) and the site plan (Annexure R­5). 7. The  first  question  to  be  examined   is   whether  possession   had  been taken over by the State Government and handed over to HUDA.  Rapat of 4 possession dated 21.7.2003, clearly shows that possession of total 172.52 acres has been taken over in the presence of landowners and interested persons   by   offering   compensation.     The   award   was   also   announced, possession   was   taken   by   the   Land   Acquisition   Collector,   Urban   Estates, Gurgaon by walking around the land and marking land using Kassi.  Shri Om   Prakash   Kanungo,   Representative   of   Estate   Officer,   Gurgaon   was handed over the possession of the same and the possession was handed over to HUDA.  A watchman was also posted to look after the land and the announcement was also made of taking possession by beating drums.  The panchnama was signed by the Land Acquisition Collector, Watchman, and the concerned Patwari.   8. The   drawing   of  panchnama  of   taking   over   of   possession   is   not disputed.   However,   it   was   submitted   that   since   there   were   two   rooms, possession could not have been taken over in the manner in which it is stated in the aforesaid panchnama. 9. It is a settled proposition of law that when the State acquires the large tract of land and draws the  panchnama  of taking possession, the same is enough for taking possession of the land.  In the instant case not only the panchnama  had been drawn, State has taken the possession by marking the land and a watchman was also posted to look after the land. 10. In  <cite>Balwant Narayan Bhagde v. M.D. Bhagwat,  (1976) 1 SCC 700</cite>, it has   been   opined   that   the   act   of   Tahsildar   in   going   to   the   spot   and inspecting   the   land   was   sufficient   to   constitute   a   taking   of   possession. 5 Therefore, it was not open to withdraw the land acquired under Section 48(1) of the Act.  The Court observed: “28. We agree with the conclusion reached by our brother Untwalia, J., as also with the reasoning on which the conclusion is based. But we are writing a separate judgment as we feel that the discussion in the   judgment   of   our   learned   Brother   Untwalia,   J.,   in   regard   to delivery of ‘symbolical’ and ‘actual’ possession under Rules 35, 36, 95   and   96   of   Order   21of   the   Code   of   Civil   Procedure,   is   not necessary for the disposal of the present appeals and we do not wish to subscribe to what has been said by our learned Brother Untwalia, J., in that connection, nor do we wish to express our assent with the discussion of the various authorities made by him in his judgment. We think it is enough to state that when the Government proceeds to   take   possession   of   the   land   acquired   by   it   under   the   Land Acquisition Act, 1894, it must take actual possession of the land since all interests in the land are sought to be acquired by it. There can be no question of taking ‘symbolical’ possession in the sense understood by judicial decisions under the Code of Civil Procedure. Nor  would  possession  merely  on   paper  be  enough.   What  the  Act contemplates as a necessary condition of vesting of the land in the Government   is   the   taking   of   actual   possession   of   the   land.   How such possession may be taken would depend on the nature of the land. Such possession would have to be taken as the nature of the land admits of. There can be no hard and fast rule laying down what act would be sufficient to constitute a taking of possession of land. We should not, therefore, be taken as laying down an absolute and inviolable   rule   that   merely   going   on   the   spot   and   making   a declaration by the beat of drum or otherwise would be sufficient to constitute a taking of possession of land in every case. But here, in our opinion, since the land was lying fallow and there was no crop on it at the material time, the act of the Tehsildar in going on the spot and inspecting the land for the purpose of determining what part   was   waste   and   arable   and   should,   therefore,   be   taken possession of and determining its extent, was sufficient to constitute taking of possession. It appears that the appellant was not present when this was done by the Tehsildar, but the presence of the owner or the occupant of the land is not necessary to effectuate the taking of possession. It is also not strictly necessary as a matter of legal requirement   that   notice   should   be   given   to   the   owner   or   the occupant of the land that possession would be taken at a particular time, though it may be desirable where possible, to give such notice before   possession   is   taken   by   the   authorities,   as   that   would eliminate the possibility of any fraudulent or collusive transaction of taking of mere paper possession, without the occupant or the owner ever coming to know of it.” 6 11. In  <cite>Tamil Nadu Housing Board v. A. Viswam (Dead) by LRs.,  (1996) 8 SCC 259</cite>, this Court has held that recording of the memorandum by the Land Acquisition Officer (LAO) in the presence of witnesses signed by them would constitute taking possession of the land.  The Court observed:  “9. It is settled law by series of judgments of this Court that one of the   accepted   modes   of   taking   possession   of   the   acquired   land   is recording   of   a   memorandum   or   Panchnama   by   the   LAO   in   the presence   of   witnesses   signed   by   him/them   and   that   would constitute taking possession of the land as it would be impossible to take   physical   possession   of   the   acquired   land.   It   is   common knowledge that in some cases the owner/interested person may not cooperate in taking possession of the land.” 12. In <cite>Banda Development Authority, Banda v. Moti Lal Agarwal, (2011) 5 SCC 394</cite>, this Court has held that if acquisition is of a large tract of land, it is not possible to take possession of each and every parcel of the land and it would   be   sufficient   that   symbolic   possession   is   taken   by   preparing   an appropriate   document   in   the   presence   of   independent   witnesses   and obtaining their signatures.  The Court observed: “37. The principles which can be culled out from the above­noted judgments are: (i) No hard­and­fast rule can be laid down as to what act would constitute taking of possession of the acquired land. (ii) If the acquired land is vacant, the act of the State authority concerned   to   go   to   the   spot   and   prepare   a   panchnama   will ordinarily   be   treated   as   sufficient   to   constitute   taking   of possession. (iii)   If   crop   is   standing   on   the   acquired   land   or building/structure   exists,   mere   going   on   the   spot   by   the authority concerned will, by itself, be not sufficient for taking possession. Ordinarily, in such cases, the authority concerned will   have   to   give   notice   to   the   occupier   of   the building/structure or the person who has cultivated the land 7 and take possession in the presence of independent witnesses and get their signatures on the panchnama. Of course, refusal of the owner of the land or building/structure may not lead to an inference that the possession of the acquired land has not been taken. (iv) If the acquisition is of a large tract of land, it may not be possible for the acquiring/designated authority to take physical possession of each and every parcel of the land and it will be sufficient   that   symbolic   possession   is   taken   by   preparing appropriate   document   in   the   presence   of   independent witnesses and getting their signatures on such document. (v) If beneficiary of the acquisition is an agency/instrumentality of the State and 80% of the total compensation is deposited in terms   of   Section   17(3­A)   and   substantial   portion   of   the acquired land has been utilised in furtherance of the particular public purpose, then the court may reasonably presume that possession of the acquired land has been taken.” 13. The   question   also   came   for   consideration   in  <cite>State   of   T.N.   v. Mahalakshmi Ammal, (1996) 7 SCC 269</cite>, in which this Court observed that possession would be taken by drawing memorandum.  The Court observed: “9. It is well­settled law that publication of the declaration under Section 6 gives conclusiveness to public purpose. Award was made on 26­9­1986 and for Survey No. 2/11 award was made on 31­8­ 1990. Possession having already been undertaken on 24­11­1981, it stands vested in the State under Section 16 of the Act free from all encumbrances and thereby the Government acquired absolute title to the land. The initial award having been made within two years under Section 11 of the Act, the fact that subsequent award was made on 31­8­1990 does not render the initial award invalid. It is also to be seen that there is stay of dispossession. Once there is stay of dispossession, all further  proceedings necessarily  could not  be proceeded with as laid down by this Court. Therefore, the limitation also does not stand as an impediment as provided in the proviso to Section 11­A of the Act. Equally, even if there is an irregularity in service of notice under Sections 9 and 10, it would be a curable irregularity and on account thereof, award made under Section 11 does not become invalid. Award is only an offer on behalf of the State. If compensation was accepted without protest, it binds such party but subject to Section 28­A. Possession of the acquired land would be taken only by way of a memorandum, Panchnama, which is   a  legally   accepted   norm.   It  would   not  be   possible   to  take  any 8 physical   possession.   Therefore,   subsequent   continuation,   if   any, had by the erstwhile owner is only illegal or unlawful possession which does not bind the Government nor vested under Section 16 divested in the illegal occupant. Considered from this perspective, we hold that the High Court was not justified in interfering with the award.” 14. In  <cite>Balmokand   Khatri   Educational   and   Industrial   Trust,   Amritsar   v. State of Punjab,  (1996) 4 SCC 212</cite>, it has been observed that the normal rule   of   taking   possession   is   drafting   the  panchnama  in   the   presence   of panchas.  This Court observed:   “4. It is seen that the entire gamut of the acquisition proceedings stood completed by 17­4­1976 by which date possession of the land had   been   taken.   No   doubt,   Shri   Parekh   has   contended   that   the appellant still retained their possession. It is now well­settled legal position that it is difficult to take physical possession of the land under   compulsory   acquisition.   The   normal   mode   of   taking possession is drafting the panchnama in the presence of panchas and taking possession and giving delivery to the beneficiaries is the accepted mode of taking possession of the land. Subsequent thereto, the   retention   of   possession   would   tantamount   only   to   illegal   or unlawful possession. 5.   Under   these   circumstances,   merely   because   the   appellant retained possession of the acquired land, the acquisition cannot be said to be bad in law. It is then contended by Shri Parekh that the appellant­Institution   is   running   an   educational   institution   and intends to establish a public school and that since other land was available,   the   Government   would   have   acquired   some   other   land leaving the acquired land for the appellant. In the counter­affidavit filed in the High Court, it was stated that apart from the acquired land,   the   appellant   also   owned   482   canals   19   marlas   of   land. Thereby, it is seen that the appellant is not disabled to proceed with the   continuation   of   the   educational   institution   which   it   seeks   to establish. It is then contended that an opportunity may be given to the appellant to make a representation to the State Government. We find that it is not necessary for us to give any such liberty since acquisition process has already been completed.” 9 15. In <cite>P.K. Kalburqi v. State of Karnataka, (2005) 12 SCC 489</cite>, this Court held   that   if   the   land   was   vacant   and   unoccupied,   taking   symbolical possession would be enough. 16. In  <cite>Sita   Ram   Bhandar   Society,   New   Delhi   v.   Lieutenant   Governor, Government of NCT, Delhi, (2009) 10 SCC 501</cite>, it was observed that mode of taking possession is by way of drawing of  panchnama.   Similar view has been reiterated in <cite>Omprakash Verma v. State of Andhra Pradesh, (2010) 13 SCC 158</cite>. 17. In  <cite>M. Venkatesh v. Commissioner, Bangalore Development Authority, (2015) 17 SCC 1</cite>, again it was reiterated that mode of taking possession is by   drawing   a  panchnama.     It   is   further   held   that   the   mode   of   taking possession adopted by BDA was permissible.  18. In  <cite>State of Madhya Pradesh  v. Narmada  Bachao Andolan,  (2011) 7 SCC 639</cite>, this Court held that it would depend upon the facts that of the individual case whether possession has been taken or not.   We are of the considered opinion that possession has been taken as is apparent from the memorandum dated 21.7.2003 placed on record. 19. Learned counsel for the respondent has submitted that there were two rooms in existence admeasuring 15’x12’ and 18’x12’ with boundary wall. He   has   taken   us   to   the   site   plan,   in   which,   now   10   shops   are   shown, besides that there are three rooms, one kitchen, and verandah.  Thus, most of these structures have been erected subsequently.  Even if there were two outhouses in existence at the time of issuance of Notification under Section 10 4 of the Land Acquisition Act, 1894 in the shape of rooms admeasuring 15'x12' and 18'x12' and boundary wall, obviously it was not meant for the residential purposes, but meant for agricultural purposes.  It appears that once possession had been taken after making a trespass upon the land, construction   has   been   raised.     Most   of   these   structures   were   not   in existence as per the finding recorded by the High Court.  Thus, the site plan rather than espousing the cause of the respondent, defeats the same. Once possession had been taken and compensation has been admittedly collected by the respondent, it was not open for him to apply for de­notification of land under Section 48 of the Land Acquisition Act, 1894 or for its release.   20. The submission raised that land of two other incumbents has been released in 2006 and 2014, is of no avail.  There is no concept of negative equality and the respondent cannot be permitted to take advantage of his wrong.     The   land   had   been   acquired   and   thereafter   respondent   has trespassed upon the land and has raised construction, in completely illegal manner.  He is not entitled to protect it.  Based on such encroachment, he is not entitled to release of the land.   21. It cannot be said that land acquired is unutilised land, as a matter of fact, lot of development has taken place as there is encroachment made, as such,   land   could   not   have   been   utilised   and   by   making   unwarranted interference by the High Court, the acquisition was ordered to be quashed. We are of the opinion that the prayer made by the respondent to apply for releasing   the   land   as   per   the   Notification   dated   14.9.2018,   cannot   be 11 entertained.   The respondent cannot be given such a right as he has not come to the Court with clean hands. He is an encroacher and cannot be said to be entitled to any indulgence. 22. It is apparent that acquisition has attained finality, the award was passed, compensation was collected and possession was taken long back in the year 2003.  Resultantly, we find the impugned judgment and order to be unsustainable, the same is hereby set aside.   The appeal is allowed.   No order as to costs. 

1 This appeal is directed against the order dated 22.5.2012 in S.B. Criminal Miscellaneous Petition No.1679 of 2012, whereby the High Court of Rajasthan (Jaipur Bench) has allowed the criminal miscellaneous petition filed under Section 482 of Code of Criminal Procedure, 1908 and has set aside the order dated 2 24.04.2012 passed by Additional Sessions Judge (Fast – Track), Sikar. 2. A charge sheet No.22 of 2009 dated 20.3.2009 was presented under Sections 302, 201, 342, 120-B IPC against respondent Nos.1 and 2 and three others. Charges have been framed under the aforesaid Sections against the accused persons. Statements of 28 witnesses have been recorded in the trial. The statements of Sawarmal and Chandri have been recorded as PW4 and PW5 respectively. Thereafter, both moved applications before the Sessions Judge under Section 311 of Cr.P.C. for re-recording their statements on the ground that the previous statements were made under the influence of the police. In the applications, the witnesses have stated that respondent Nos.1 and 2 had no role in the incident. 3. The Sessions Judge by the order dated 24.4.2012, dismissed the applications observing that the 28 witnesses had already been examined in the case so far. The witnesses were also cross-examined at length and it cannot be said that they were in any kind of pressure and that the applications were filed with a 3 view to favour the accused persons. Prahlad Jat and Mahavir, the two accused persons, moved the petition before the High Court for quashing the said order and the High Court has allowed the applications of PW4 and PW5. 4. Learned counsel for the appellant, urged that PW4 and PW5 were examined in the Court on different dates in the months of November and December 2010 and in March 2011. Out of total 35 witnesses, 28 witnesses have already been examined and they were cross-examined at length. PWs 4 and 5 filed applications before the trial court for further examination on 27.2.2012 and 26.3.2012 respectively. During police investigation and examination conducted by the prosecution, they had supported the prosecution story. The applications have been filed with an intention to provide assistance to the accused persons which cannot be permitted in law. The applications are highly belated and no reason, whatsoever, has been assigned for the delay. Therefore, the High Court was not justified in setting aside the well-reasoned order of the Sessions Judge. 4 5. On the other hand, learned counsel appearing for respondent No.4 submits that the appellant has no locus standi to file this appeal. It is contended that the Sessions Judge has ample power to examine or re-examine any witness under Section 311 of the Cr.P.C. to bring on record the best possible evidence to meet the ends of justice. Keeping this principle in mind the High Court has allowed the petition. Learned counsel appearing for the third respondent has supported the case of the appellant. We have carefully considered the arguments of the learned counsel made at the Bar. 6. The appellant is the paternal brother of the deceased and is one of the prosecution witnesses. The evidence of PW4 and PW5 was recorded on different dates in the months of November and December 2010 and in March 2011. Both of them had supported the case of the prosecution. After passage of about 14 months, PW4 and PW5 filed applications under Section 311 of the Cr.P.C., inter alia, praying for their re-examination as witnesses for the reason that the statements recorded earlier were made on the 5 instructions of the police. The Sessions Judge dismissed the application by holding as under: “The charges have already been framed under sections 302, 201, 342, 120 B IPC against the accused persons. Statements of 28 witnesses have already been recorded in the trial. The statements of applicant namely Sawarmal has already been recorded as witness PW4 and the statements of applicant namely Chandri have also already been recorded as witness PW5. Thereafter, the said applications have been filed. Said witnesses have already undergone a lengthy cross examination. During the police investigation and examination conducted by the prosecution, wherein they have supported prosecution story, it cannot be said that at such time, the witnesses were under any pressure. In such circumstances, it is not justified to make the Court as weapon to adjudicate in own favour and the above both applications are without any merit and presented with the intention to provide assistance to the accused persons, due to which, the same are not liable to be admitted. Resultant, the above presented both applications dated 27.02.2012 and 26.03.2012 under section 311 CrPC on behalf of the applicants are not liable to be admitted, the same are dismissed”. therefore, This order of the Sessions Judge has been set aside by the High Court. 6 7. Having regard to the contentions urged, the first question for consideration is whether the appellant has locus standi to challenge the order of the High Court. 8. In Black’s Law Dictionary, the meaning assigned to the term ‘locus standi’ is ‘the right to bring an action or to be heard in a given forum’. One of the meanings assigned to the term ‘locus standi’ in Law Lexicon of Sri P.Ramanatha Aiyar, is ‘a right of appearance in a Court of justice’. The traditional view of locus standi has been that the person who is aggrieved or affected has the standing before the court, that is to say, he only has a right to move the court for seeking justice. The orthodox rule of interpretation regarding the locus standi of a person to reach the Court has undergone a sea change with the development of constitutional law in India and the Constitutional Courts have been adopting a liberal approach in dealing with the cases or dislodging the claim of a litigant merely on hyper-technical grounds. It is now well-settled that if the person is found to be not merely a stranger to the case, he cannot be non-suited on the ground of his not having locus standi. 7 9. However, criminal trial is conducted largely by following the procedure laid down in Cr.P.C. Locus standi of the complaint is a concept foreign to criminal jurisprudence. Anyone can set the criminal law in motion except where the statute enacting or creating an offence indicates to the contrary. This general principle is founded on a policy that an offence, that is an act or omission made punishable by any law for the time being in force, is not merely an offence committed in relation to the person who suffers harm but is also an offence against the society. Therefore, in respect of such offences which are treated against the society, it becomes the duty of the State to punish the offender. In <cite>A.R. Antulay v. Ramdas Sriniwas Nayak & Anr. (1984) 2 SCC 500</cite>, a Constitution Bench of this Court has considered this aspect as under:- “In other words, the principle that anyone can set or put the criminal law in motion remains intact unless contra-indicated by a statutory provision. This general principle of nearly universal application is founded on a policy that an offence i.e. an act or omission made punishable by any law for the time being in force [See Section 2(n) CrPC] is not merely an offence committed in relation to the person who suffers harm but is also an 8 offence against society. The society for its orderly and peaceful development is interested in the punishment of the offender. Therefore, prosecution for serious offences is undertaken in the name of the State representing the people which would exclude any element of private vendetta or vengeance. If such is the public policy underlying penal statutes, who brings an act or omission made punishable by law to the notice of the authority competent to deal with it, is immaterial and irrelevant unless the statute indicates to the contrary. Punishment of the offender in the interest of the society being one of the objects behind penal statutes enacted for larger good of the society, right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a strait-jacket formula of locus standi unknown to criminal jurisprudence, save and except specific statutory exception”. 10. In <cite>Manohar Lal v. Vinesh Anand & Ors. (2001) 5 SCC 407</cite>, this Court has held that doctrine of locus standi is totally foreign to criminal jurisprudence. To punish an offender in the event of commission of an offence is to subserve a social need. Society cannot afford to have a criminal escape his liability since that would bring about a state of social pollution which is neither 9 desired nor warranted and this is irrespective of the concept of locus. 11. In <cite>Arunachalam v. P.S.R. SADHANANTHAM & ANR. (1979) 2 SCC 297</cite>, this Court has considered the competence of a private party, as distinguished from the State to invoke the jurisdiction of this Court under Article 136 of the Constitution against a judgment of acquittal by the High Court. It was held that appellate power vested in the Supreme Court under Article 136 of the Constitution is not to be confused with ordinary appellate power exercised by appellate courts and appellate tribunals under specific statutes. Article 136 of the Constitution vests the Supreme Court with a plentitude of plenary, appellate power over all Courts and Tribunals in India. The power is plenary in the sense that there are no words in Article 136 itself qualifying that power. But, the very nature of the power has led the Court to set limits to itself within which it has to exercise such power. The power is vested in the Supreme Court but the right to invoke the Court’s jurisdiction is vested in no one. The exercise of the power of the Supreme Court is not circumscribed by any 10 limitation as to who may invoke it. The Court found that the judgment of acquittal by the High Court has led to serious miscarriage of justice. Therefore, it was held that Supreme Court cannot refrain from doing its duty and abstain from interfering on the ground that a private party and not the State has invoked the Court’s jurisdiction. 12. The accused in <cite>Arunachalam (supra)</cite> had filed a writ petition under Article 32 contending that the Supreme Court has no power to grant special leave to the brother of the deceased. This writ petition was decided by a Constitution Bench in <cite>P.S.R Sadhanantham v. Arunachalam & Anr. (1980) 3 SCC 141</cite>. Rejecting the contention of the petitioner, this Court held as under:- “In express terms, Article 136 does not confer a right of appeal on a party as such but it confers a wide discretionary power on the Supreme Court to interfere in suitable cases. It is residuary power and is extraordinary in its amplitude. But the Constitution makers intended in the very terms of Article 136 that it shall be exercised by the highest judges of the land with scrupulous adherence to judicial principles well established by precedents in our 11 jurisprudence. Article 136 has a composite structure of power-cum-procedure inasmuch as there is an in-built prescription of exercise of judicial discretion and mode of hearing. It is fair to assume that while considering the petition under Article 136 the court will pay attention to the question of liberty, the person who seeks such leave from the court, his motive and his locus standi and the weighty factors which persuade the court to grant special leave. When this conspectus of processual circumstances and criteria play upon the jurisdiction of the court under Article 136, it is reasonable to conclude that the desideratum of fair procedure implied in Article 21 is adequately answered. Though parties promiscuously this jurisdiction, the court parsimoniously invokes the power. Moreover, the court may not, save in special situations, grant leave to one who is not eo nomine a party on the record. Thus, procedural limitations exist and are governed by well-worn rules of guidance”. ‘provoke’ 13. In <cite>Ramakant Rai v. Madan Rai & Ors. (2003) 12 SCC 395</cite>, and <cite>Esher Singh v. State of A.P. (2004) 11 SCC 585</cite>, it was held that the Supreme Court can entertain appeals against the judgment of acquittal by the High Court at the instance of interested parties also. The circumstance that Criminal Procedure Code does not provide for an appeal to the High Court against an order of acquittal by a subordinate court at the instance of a 12 private party has no relevance to the question of power of Supreme Court under Article 136. 14. In <cite>Amanullah and Anr. v. State of Bihar and Ors. (2016) 6 SCC 699</cite>, this Court has held that the aggrieved party cannot be left to the mercy of the State to file an appeal. It was held as under :- “19…… Now turning our attention towards the criminal trial, which is conducted, largely, by following the procedure laid down in CrPC. Since, offence is considered to be a wrong committed against the society, the prosecution against the accused person is launched by the State. It is the duty of the State to get the culprit booked for the offence committed by him. The focal point, here, is that if the State fails in this regard and the party having bona fide connection with the cause of action, who is aggrieved by the order of the court cannot be left at the mercy of the State and without any option to approach the appellate court for seeking justice”. 15. It is thus clear that Article 136 does not confer a right to appeal on any party but it confers a discretionary power on the Supreme Court to interfere in suitable cases. The exercise of the power of the court is not circumscribed by any limitation as to 13 who may invoke it. It does not confer a right to appeal, it confers only a right to apply for special leave to appeal. Therefore, there was no bar for the appellant to apply for special leave to appeal as he is an aggrieved person. This Court in exercise of its discretion granted permission to the appellant to file the special leave petition on 03.08.2012 and leave was granted on 24.02.2014. 16. That brings us to the next question as to whether the High Court was justified in setting aside the order of the Sessions Judge and allowing the application filed by PWs 4 and 5 for their re-examination. For ready reference Section 311 of the Cr.P.C. is as under: “311. Power to summon material witness, or examine person present.- Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case”. 14 17. In order to enable the court to find out the truth and render a just decision, the salutary provisions of Section 311 are enacted whereunder any court by exercising its discretionary authority at any stage of inquiry, trial or other proceeding can summon any person as witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person already examined who are expected to be able to throw light upon the matter in dispute. The object of the provision as a whole is to do justice not only from the point of view of the accused and the prosecution but also from the point of view of an orderly society. This power is to be exercised only for strong and valid reasons and it should be exercised with caution and circumspection. Recall is not a matter of course and the discretion given to the court has to be exercised judicially to prevent failure of justice. Therefore, the reasons for exercising this power should be spelt out in the order. 18. In <cite>Vijay Kumar v. State of Uttar Pradesh and Anr., (2011) 8 SCC 136</cite>, this Court while explaining scope and ambit of Section 311 has held as under:- 15 “Though Section 311 confers vast discretion upon the court and is expressed in the widest possible terms, the discretionary power under the said section can be invoked only for the ends of justice. Discretionary power should be exercised consistently with the provisions of CrPC and the principles of criminal law. The discretionary power conferred under Section 311 has to be exercised judicially for reasons stated by the court and not arbitrarily or capriciously”. 19. In <cite>Zahira Habibullah Sheikh (5) and Anr. v. State of Gujarat and Others, (2006) 3 SCC 374</cite>, this Court has considered the concept underlining under Section 311 as under:- “The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the court to summon a witness under the section merely because the evidence supports the case of the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers the Magistrate to 16 issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is “at any stage of any inquiry or trial or other proceeding under this Code”. It is, however, to be borne in mind that whereas the section confers a very wide power on the court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind”. 20. In <cite>State (NCT of Delhi) v. Shiv Kumar Yadav & Anr., (2016) 2 SCC 402</cite>, it was held thus:- “…………… Certainly, recall could be permitted if essential for the just decision, but not on such consideration as has been adopted in the present case. Mere observation that recall was necessary “for ensuring fair trial” is not enough unless there are tangible reasons to show how the fair trial suffered without recall. Recall is not a matter of course and the discretion given to the court has to be exercised judiciously to prevent failure of justice and not arbitrarily. While the party is even permitted to correct its bona fide error and may be entitled to further opportunity even when such opportunity may be sought without any fault on the part of the opposite party, plea for recall for advancing justice has to be bona fide and has to be balanced carefully with the other relevant considerations including uncalled for hardship to the witnesses and uncalled for delay in the 17 trial. Having regard to these considerations, there is no ground to justify the recall of witnesses already examined”. 21. The delay in filing the application is one of the important factors which has to explained in the application. In <cite>Umar Mohammad & Ors. v. State of Rajasthan, (2007) 14 SCC 711</cite>, this Court has held as under:- “Before parting, however, we may notice that a contention has been raised by the learned counsel for the appellant that PW 1 who was examined in Court on 5-7-1994 purported to have filed an application on 1-5-1995 stating that five accused persons named therein were innocent. An application filed by him purported to be under Section 311 of the Code of Criminal Procedure was rejected by the learned trial Judge by order dated 13-5-1995. A revision petition was filed thereagainst and the High Court also rejected the said contention. It is not a case where stricto sensu the provisions of Section 311 of the Code of Criminal Procedure could have been invoked. The very fact that such an application was got filed by PW 1 nine months after his deposition is itself pointer to the fact that he had been won over. It is absurd to contend that he, after a period of four years and that too after his examination-in-chief and cross-examination was complete, would file an application on his 18 own will and volition. The said application was, therefore, rightly dismissed”. 22. Coming to the facts of the present case, PWs 4 and 5 were examined between 29.11.2010 and 11.3.2011. They were cross-examined at length during the said period. During the police investigation and in their evidence, they have supported the prosecution story. The Sessions Judge has recorded a finding that they were not under any pressure while recording their evidence. After a passage of 14 months, they have filed the application for their re-examination on the ground that the statements made by them earlier were under pressure. They have not assigned any reasons for the delay in making application. It is obvious that they had been won over. We do not find any reasons to allow such an application. The Sessions Judge, therefore, was justified in rejecting the application. In our view, High Court was not right in setting aside the said order. 23. In the result, the appeal succeeds and it is accordingly allowed. The order of the High Court in S.B. Criminal 19 Miscellaneous Petition No.1679 of 2012, dated 22.5.2012 is hereby set aside. All pending applications also stand disposed of. 24. We find from the records that after the order of the High Court, PWs 4 and 5 were re-examined before the Trial Court. The Trial Court is directed to proceed with the matter without taking into consideration the evidence of PWs 4 and 5 recorded after the order of the High Court.

2 2. These three appeals have been filed against the common judgment dated 27.07.2020 of the High Court of Punjab and Haryana dismissing the Civil Writ Petition No.13496 of 2009 which was filed by the appellants in first two appeals. The third appeal, Sandeep Kumar and another is an appeal filed by the two appellants who were intervenors in the Civil Writ Petition No.13496 of 2009. The Division Bench of the High Court by the impugned judgment dismissed the writ petition upholding the promotion orders of all the respondent Nos.4 to 34 as Inspector in the Haryana Police. 3. Brief facts of the case necessary to be noted for deciding these appeals are: The appointment and promotion in Police Force of the State of Haryana are governed by Punjab Police Rules, 1934. In the State of Haryana prior to 2001, 100% posts of Sub-Inspectors of Police used to be filled by way of promotion. Rule 12.3 was amended vide notification dated 24.12.2001 by substituting Rule 12.3 to the following effect: 3 “12.3, Direct appointment of Inspectors and Sub-Inspectors – Except as provided in rules 12.1 and 12.4 direct appointment shall not be made except in the rank of Inspector and Sub Inspector of Police. Such appointment in the rank of Inspector and Sub Inspector may be made up to a maximum of ten percent and fifty percent of posts respectively.” 4. The first direct recruitment on the post of Sub- Inspector was held in the year 2003 in which recruitment all the three writ petitioners, Om Prakash, Sudeep Kumar Singh and Suresh Kumar were recommended for direct recruitment as Sub-Inspector. All the writ petitioners joined in May, 2003 as Sub-Inspector. The private respondents to these appeals who were arrayed as respondent Nos.4 to 34 in the writ petition were promoted to the rank of Sub-Inspector from Assistant Sub-Inspector between June, 2003 and March, 2004, i.e., after the writ petitioners had joined. The respondents were promoted on the post of Inspector by orders dated 27.11.2008, 18.05.2009 and 13.08.2009. The writ petitioners aggrieved by the above mentioned promotion orders filed Civil Writ Petition No.13496 of 2009 praying for following reliefs: 4 “i) Issue a writ in the nature of mandamus summoning the records of the cases. ii) Issue a writ in the nature of certiorari quashing the order dated 27.11.2008 (Annexure-P-8), order dated 18.05.2009 (Annexure-P-9) and order dated 13.08.2009 (Annexure-P-10) whereby the private respondents have been promoted as Inspectors of Police; iii) Issue a writ in the nature of certiorari quashing the confirmation order dated 30.06.2009 (Annexure P-2), order dated 15.06.2009 (Annexure P-3) and also order dated 30.06.2009 (Annexure P-4); iv) Issue a writ in the nature of certiorari quashing the Rules 12.2, 12.8 and 13.18 of the Punjab Police Rules being ultra vires of Articles 14 and 16 of the Constitution of India. v) Issue a writ in the nature of mandamus directing the official respondents to consider and promote the petitioner as Inspector with effect from the date the private respondents were promoted and directing the official respondents to grant all consequential reliefs that flow viz. seniority in the rank of Inspector, fixation of pay, payment of arrears of pay along with interest at the rate of 12 per cent per annum etc. etc. 5 vi) Issue any other suitable writ, order or direction as this Hon’ble Court may deem fit and proper in the facts and circumstances of the present case may be issued.” 5. The writ petition was contested both by the State as well as by the private respondents. It was pleaded on behalf of the State that the eligibility for promotion from the post of Sub-Inspector to Inspector is eight years’ service of which five years’ service should be as Sub-Inspector, none of the writ petitioners had to their credit eight years’ service hence they being not eligible were not promoted. The writ petitioners were promoted in the year 2011 when they completed eight years of service to their credit. The State defended the vires of the Rules and contends that the Rules were neither arbitrary nor violative of Articles 14 and 16 of the Constitution. The High Court framed following two issues in the writ petition for consideration: 6 “(i) Whether Rule 13.14(2) prescribes the eligibility criteria for consideration for promotion to the post of Inspector ? (ii) If the Rule 13.14(2) is applicable, whether the conditions of eight years experience is arbitrary and discriminatory and is, therefore, required to be struck down being violative of Article 16 of the Constitution ?” 6. The High Court after considering the submissions of the parties held that Rule 13.14(2) of the Punjab Police Rules, 1934 prescribes the eligibility criteria for consideration for promotion to the post of Inspector. The High Court also held that requirement of eight years’ experience for promotion to the post of Inspector is neither arbitrary nor discriminatory. After recording the conclusion, writ petition was dismissed by the High Court. Aggrieved by the judgment of the High Court, the writ petitioners have filed first two appeals and the last appeal has been filed by the intervenors. 7. We have heard Shri P.S. Patwalia, learned senior counsel and Shri Shyam Divan, learned senior counsel 7 appearing for the appellants. Shri Gurminder Singh, learned senior counsel, has appeared for the private respondents. Shri Nikhil Goel, learned Additional Advocate General has appeared for the State of Haryana. 8. Learned senior counsel for the appellants submits that the appellants/writ petitioners were senior to the private respondents in the cadre of Sub-Inspector, and they being directly recruited before the respondents could be promoted as Sub-Inspector. They being seniors were entitled to be promoted on the post of Inspector as they have also completed five years’ experience as Sub-Inspector. It is submitted that the High Court has wrongly relied on Rule 13.14 which Rule was not applicable for promotion to the post of Inspector from Sub-Inspector. It is submitted that the applicable Rules for promotion from the rank of Sub-Inspector to Inspector are Rules 13.1, 13.15 and 13.16 of Rules, 1934. Rule 13.14 covers a situation where a Sub- Inspector is being promoted to and in the Selection Grade of Sub-Inspector. The Government of Haryana vide 8 its order dated 29.04.1987 has abolished the Selection Grade in all Groups B,C and D posts. The Sub-Inspector being a Group-C post, there was no question of promotion in Selection Grade of any Sub-Inspector after 29.04.1987. In fact, none of the private respondents were promoted in the Selection Grade so as to claim applicability of Rule 13.14. The selection criteria is contained in sub-rule (1) of Rule 13 and Rule 13.15. Sub-Rule (4) of Rule 13.15 does not deal with eligibility rather it deals with inter-se seniority. The Haryana Police (Non-Gazetted and Other Ranks) Service Rules, 2017 now provide, by Rule 7 read with Appendix B that five years’ service is required as Sub- Inspector for promotion to the post of Inspector. The position in Rules, 2017 clearly defeats the construction placed by the High Court requiring an eight years’ qualifying period. 9. Shri Nikhil Goel, learned Additional Advocate General for the State of Haryana submits that requirement for promotion to the rank of Inspector has 9 always been of eight years’ of service. The said criteria has been followed ever since the State of Haryana was established in 1966 and even after selection grade was abolished in 1987. The requirement of eight years of service for promotion to the post of Inspector is clear from a conjoined reading of Rule 13.14 read with Rule 13.15(4) of Rules, 1934. Rule 13.14 of Rules, 1934 was never challenged in the writ petition but rather it was only the vires of Rule 12.2, 12.8 and 13.18 that were challenged. No reliance can be placed on Rules, 2017 which Rules have been notified after nine years of promotion of private respondents. Rule 13.14 is an integral and inalienable part of the scheme of the Rules governing promotion to the rank of Inspector. Without Rule 13.14, there cannot be any List F and without List F, no promotion can be made to the post of Inspector. The selection grades are in the nature of a promotional scale. Therefore, the criteria provided for promotion to selection grade can be taken as criteria for further promotion. The requirement and 10 rationale of eight years of service for a Sub-Inspector is to discharge the higher responsibility of an Inspector. Rules, 1934 have always been interpreted so by the State and all promotions were affected till new Rules were enforced in 2017. 10. Learned counsel for the private respondents also adopts the submissions raised by Shri Nikhil Goel that impugned judgment of the High Court needs no interference by this Court. 11. Shri P.S. Narasimha, learned senior counsel, has also appeared for the private respondents. He, however, submits that he is not affected by the inter-se dispute between the writ petitioners and the private respondents. He submits that his clients have already been promoted as Deputy Superintendents of Police. 12. We have considered the submissions made by the learned counsel for the parties and perused the records. 11 13. From the submissions of the learned counsel for the parties and materials on record following two questions arise for consideration in these appeals:- (i) Whether the mode and manner of promotion in selection grade from rank of Sub-Inspector to Inspector as envisaged in Punjab Police Rules, 1934 has become redundant after issuance of Government Order dated 29.04.1987 by State of Haryana withdrawing the grant of selection grade to Group A, B and C employees? (ii) Whether the Rule 13.14 of Punjab Police Rules, 1934, which contemplate promotion to the various selection grades cannot be looked into while considering the promotion of a Sub- Inspector to the rank of Inspector and requirement of having at least eight years’ approved service as an upper subordinate is no longer attracted for promotion of direct recruits Sub-Inspector? 12 14. Before we proceed to consider the respective submissions, we need to look into the statutory rules governing the promotion from the post of Sub-Inspector to Inspector. The statutory rules are Punjab Police Rules, 1934. The appellant’s case is that only applicable rules for promotion from the rank of Sub- Inspector to Inspector are Rules 13.1, 13.15 and 13.16 of the Rules, 1934. We need to notice the aforesaid rules, which are to the following effect:- “13.1. Promotion from one rank to another. - (1) Promotion from one rank to another, and from one grade to another in the same rank shall be made by selection tempered by seniority. Efficiency and honesty shall be the main factors governing Specific qualifications, whether in the nature of training courses passed or practical experience, shall be carefully considered in each case. When the qualifications of two officers are otherwise equal, the senior shall be promoted. This rule does not affect increments within a time-scale. selection. (2) Under the present constitution of the police force no lower subordinate will ordinarily be entrusted with the independent conduct of investigations or the independent charge of a police station or similar unit. It is necessary, therefore, that well-educated constables, 13 having the attributes necessary for bearing the responsibilities of upper subordinate rank, should receive accelerated promotion so as to reach that rank as soon as they have passed the courses prescribed for, and been tested and given practical training in, the ranks of constable and head constable. (3) For the purposes of regulating promotion amongst enrolled police officers six promotion lists - A, B, C, D, E, and F will be maintained. Lists A, B, C and D shall be maintained in each district as prescribed in rules 13.6, 13.7, 13.8 and 13.9 and will regulate promotion to the selection grade of constables and to the ranks of head constables and Assistant Sub- Inspector. List E shall be maintained in the office of Deputy Inspector- General as prescribed in sub-rule 13.10(1) and will regulate promotion to the rank of Sub- Inspector. List F shall be maintained in the office of the Inspector-General as prescribed in sub-rule 13.15(1) and will regulate promotion to the rank of Inspector. Entry in or removal from A, B, C, D or E lists shall be recorded in the order book and in the character roll of the police officer concerned. These lists are nominal rolls of those officers whose admission to them has been authorised. No actual selection shall be made without careful examination of character rolls. 14 Provided that five per cent of such promotions may be made from amongst the members of the Police Force, who achieve outstanding distinction in sports field at All India level or International level if they are otherwise eligible for promotion but for seniority. 13.15. List F - Promotion to Inspectors. - (1) Recommendations on behalf of Sergeants and Sub-Inspectors considered fit for promotion to the rank of Inspector shall be submitted with their annual confidential reports on the 15th April each year to Deputy Inspector- General by Superintendents of Police in Form 13.15(1). Recommendations on behalf of Sergeants and Sub-Inspectors employed in the Government Railway Police will be sent direct to the Inspector-General of Police by the Assistant Inspector-General, Government Railway Police, in the same form and not later than October each year. The Deputy Inspector-General shall decide, after seeing the officers recommended, and in consideration of their records, and his own knowledge of them, whether to endorse the recommendations of Superintendents of Police and forwarded them to the Inspector-General. He will keep a copy of any recommendation so forwarded in the personal file of the officer; if he decides not to endorse a recommendation, he shall retain the original in the officer’s personal file and send a copy of his own order on it to the Superintendent concerned. Deputy Inspector-General shall finally submit recommendations to the Inspector-General as soon as they are satisfied as to the fitness of officers 15 recommended, but in no case later than October each year. (2) Such of the officers recommended as the Inspector-General may consider suitable shall be admitted to promotion list ‘F’ (form 13.15(2) which will, however, not be published. Deputy Inspectors-General shall be informed, and shall in turn inform the Superintendents concerned, of the names of those who have been admitted to the List; similar information will be sent to the Assistant Inspector-General, Government Railway Police. The original personal files of Sub- Inspectors admitted to the list shall be transferred to the Inspector-General after duplicates have been prepared for retention in the office of the Deputy Inspector-General or the Assistant Inspector-General, Government Railway Police, as required by Rule 13.38(1). Copies of all subsequent annual confidential reports prepared in form 13.17 in respect both of Sergeants and Sub-Inspectors admitted to the list will, on return by the Inspector-General in accordance with rule 13.17(1), be recorded by Deputy Inspectors-General or the Assistant Inspector-General, Government Railway Police, with the duplicate personal files of the officers concerned. Copies of all entries ordered to be made in personal files other than annual confidential reports will be forwarded to the Inspector-General as soon as made for record with the original personal files; all such copies shall be attested by the 16 Deputy Inspector-General or the Assistant Inspector General, Government Railway Police, personally. (3) When submitting recommendations for the entry of fresh names in List F, Deputy Inspectors-General and the Assistant Inspector-General, Government Railway Police, will at the same time submit specific recommendations (which need not be accompanied by detailed confidential reports) as to the retention or removal of officers already admitted to the list. On receipt of these recommendations, the Inspector-General will review the Provincial List, and pass orders regarding the retention or exclusion of names, at the same time communicating his decision to the Deputy Inspector-General and the Assistant Inspector-General, Government Railway Police. (4) Sub-Inspectors admitted to List ‘F’ will be placed in that list in order according to their date of permanent promotion to selection grade, and, if the date of permanent promotion to selection grade is the same in the case of two or more Sub-Inspectors admitted to list ‘F’ on one and the same date, then according to date of permanent promotion to the time-scale. Sergeants will be shown in list ‘F’ according to the date of entry in the list. When, however, two or more Sergeants are admitted to list ‘F’ on the same date, their names will be shown in order of seniority among themselves. 17 13.16. Promotion to the rank of Inspector. - (1) Substantive vacancies in the rank of Inspector, save those which are specially designated for the appointment of probationers shall be filled by promotion of officers from list F selected according to the principles laid down in rule 13.1. Sergeants are eligible for promotion in the appointments reserved for European Inspectors. (2) Temporary vacancies in the rank of Inspector shall be filled by the officiating promotion of officers on F list by the authorities empowered by rule 13.4 to make the appointment. Such officiating promotions shall be made in accordance with the principles laid down in sub-rule 13.12(1) in the case of E list, and the second part of that rule shall, mutatis mutandis, govern the scrutiny of the work of F list officers and the removal from that list of the names of those who are found unfit for the rank of inspector. (3) No officer whose name is not on F list shall be appointed to officiate as Inspector without the special sanction of the Inspector-General. When no officer on F list is available in the range for a vacancy which the Deputy Inspector-General is required to fill, application shall be made to the Inspector-General to appoint a man from another range.” 15. On the other hand, the respondents placed reliance on Rule 13.14, which is to the following effect:- 18 “13.14. Promotions to and in the selection grades of Sub-Inspectors. - (1) Promotion to the various selection grades of Sub-Inspectors shall be made by Superintendents of Police and the Assistant Superintendent, Government Railway Police, as vacancies in the sanctioned establishment of such appointments occur in accordance with the principle laid down in Rule 13.1. (2) No Sub-Inspector shall be considered eligible for promotion to a selection grade unless he has at least eight years’ approved service as an upper subordinate, of which at least five shall have been in the rank of Sub- Inspector, and unless he is thoroughly efficient and competent to hold charge of a police station of first class importance. No Sub- Inspector who has been punished by reduction, stoppage of increment, or forfeiture of approved service for increment, shall be eligible for promotion to a selection grade. Exceptions to this rule may be made only with the sanction of the Inspector- General in recognition of distinguished service and exemplary conduct. (3) Sub-Inspectors promoted to the 4th selection grade shall be on probation for one year and may be reverted without formal departmental proceedings during or on the expiry of the period of their probation if they fail to maintain an exemplary standard of conduct and efficiency. Provided that the competent authority may, if it so thinks fit in any case, 19 extend the period of probation by one year in the aggregate and pass such orders at any time during or on the expiry of the extended period of probation as it could have passed during or on the expiry of original period of probation.” 16. We may now notice the Government Order dated 29.04.1987 issued by the State of Haryana, which communicates the decision of the State Government that “the present system of selection grades as it exists for the employees of Groups B, C & D has been discontinued”. The effect of the G.O. dated 29.04.1987 was that there was no entitlement of a Sub-Inspector or any police personnel belonging to Group C to claim selection grade. The statutory Rule 13.1 provides that promotion from one rank to another and from one grade to another in the same rank shall be made by selection tempered by seniority. The use of expression “specific qualifications whether in the nature of training courses passed or practical experience, shall be carefully considered in each case” indicate that qualifications for promotion are not contained in Rule 13.1 and they have to be found out from other part of 20 the Rules. Rule 13.1 governs both promotions, from one rank to another, and from one grade to another. Thus, Rule 13.1 regulates promotion within the grade and from one grade to another. Rule 13.14 contains the heading “promotions to and in the selection grades of Sub- Inspectors”. Rule 13.14(2) provides that no Sub- Inspector shall be considered eligible for promotion to a selection grade unless he has at least eight years’ approved service as an upper subordinate, of which five years shall have been in the rank of Sub-Inspector. Now, coming to Rule 13.15 which deals with “List F- Promotion to Inspectors”, Rule 13.15(1) deals with recommendations on behalf of Sub-Inspectors considered fit for promotion to the rank of Inspector to be submitted with their annual confidential reports on the 15th April each year to Deputy Inspector-General by Superintendents of Police in Form 13.15(1). 17. Rule 13.15(4) provides that Sub-Inspectors admitted to List ‘F’ will be placed in that list in order according to their date of permanent promotion to 21 selection grade. Thus, date of permanent promotion to selection grade is criteria which was required to be followed for promotion to Inspector and as required by Rule 13.14(2) no Sub-Inspector shall be considered eligible for promotion to a selection grade unless he has at least eight years’ approved service as an upper subordinate, of which at least five years shall have been in the rank of Sub-Inspector. 18. Thus, promotion to selection grade of a Sub- Inspector was pre-condition for including the name of a Sub-Inspector in List ‘F’ which is a list from which promotion to Inspector was to be made. Even though scheme of grant of selection grade was done away by the State vide its common order dated 29.04.1987, the exercise of promotion to Inspector from Sub-Inspector even after 29.04.1987 was done on the basis of requirement of Rule 13.14(2), i.e., names of only those Sub-Inspectors were included in List ‘F’ who have eight years of approved service as an upper subordinate to their cadre. The promotion to selection grade was 22 contemplated under the Rules by following eligibility and criteria as laid down in the Rules. The submission of the respondents is that after the State Government withdrew the scheme of selection grade by the Government order dated 29.04.1987 all statutory provisions regarding grant of selection grade became redundant. Even if no selection grade was to be provided to any of the personnel of the Police force after 29.04.1987, the criteria which was adopted for in rank promotion was followed by the State for promotion to the next rank. The Rules contained in Chapter XIII have to be given a conjoint and meaningful reading to advance object and purpose of the Rules. The Rules provided a mode and manner for assessment of an official to move forward by means of a grant of selection grade and thereafter by the next step on the next rank. The criteria in the Rules for assessing a person that he was entitled for grant of selection grade cannot be said to be meaningless with no purpose after withdrawal of the selection grade. The grant of 23 selection grade, in the rank in which Police official was there, is a step for making eligible officer to move to the higher rank. Can the argument be accepted that promotion of Sub-Inspector to Inspector has been on the basis of seniority alone? Whether there shall be no cap of experience when a Sub-Inspector is considered to be promoted to next higher rank in grade, i.e., Inspector? If we accept the submission of the counsel of the respondents that the requirement as contained in Rule 13.14(2) is no longer applicable after withdrawal of selection grade, there will be no requirement of any experience to any Sub-Inspector for becoming an Inspector which was never the intendment of the statutory Rules. For promotion to Sub-Inspector to selection grade eight years’ approved service was contemplated which was with intent that sufficient experience is gained by a Police personnel to be considered for promotion to Inspector who is to man a Police Station and has to discharge other important functions. It is relevant to notice that no amendments 24 in the statutory Rules were made after 29.04.1987 and even after notification was issued dated 24.12.2001 substituting Rule 12.3. The case of the State before the High Court and before this Court is that even after 29.04.1987 till 2017 Rules were enforced, all Sub- Inspectors, including direct and promotees were uniformly dealt with by insisting the requirement of eight years’ approved service as the upper subordinate for the purposes of inclusion of their names in List ‘F’. 19. The selection grades are in the nature of promotional scale, therefore, the criteria provided for promotion to selection grade can very well be taken as criteria for further promotion which is the spirit of the Rules followed uniformly by the State while effecting the promotion. The object and purpose of the Rules and methodology for evaluating the Police personnel to move in the higher rank in the same or to the next rank cannot be lost sight nor can be ignored merely because the scheme was withdrawn on 29.04.1987. 25 No error has been committed by the State in continuing the evaluation of the Sub-Inspectors on the basis of criteria as provided in Rule 13.14 while effecting promotion. 20. This Court has laid down time and again that while construing statutory Rules such construction should be adopted which may give effect to the intention or object of the Rule and no such interpretation be put which may make the Rule ineffective. We may refer to the judgment of this Court in <cite>State of Gujarat and Another vs. Justice R.A. Mehta (Retired) and Others, (2013) 3 SCC 1</cite>, where this Court laid down following in paragraphs 96, 97 and 98: “96. In the process of statutory construction, the court must construe the Act before it bearing in mind the legal maxim ut res magis valeat quam pereat which means it is better for a thing to have effect than for it to be made void i.e. a statute must be construed in such a manner so as to make it workable. Viscount Simon, L.C. in <cite>Nokes v. Doncaster Amalgamated Collieries Ltd. [1940 AC 1014 : (1940) 3 All ER 549 (HL)]</cite> stated as follows: (AC p. 1022) 26 “… if the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result.” 97. Similarly in <cite>Whitney v. IRC [1926 AC 37 (HL)]</cite> it was observed as under: (AC p. 52) “… A statute is designed to be workable, and the interpretation thereof by a court should be to secure that object, unless crucial omission or clear direction makes that end unattainable.” 98. The doctrine of purposive construction may be taken recourse to for the purpose of giving full effect to statutory provisions, and the courts must state what meaning the statute should bear, rather than rendering the statute a nullity, as statutes are meant to be operative and not inept. The courts must refrain from declaring a statute to be unworkable. The rules of interpretation require that construction which carries 27 forward the objectives of the statute, protects interest of the parties and keeps the remedy alive, should be preferred looking into the text and context of the statute. Construction given by the court must promote the object of the statute and serve the purpose for which it has been enacted and not efface its very purpose. “The courts strongly lean against any construction which tends to reduce a statute to futility. The provision of the statute must be so construed as to make it effective and operative.” The court must take a pragmatic view and must keep in mind the purpose for which the statute was enacted as the purpose of law itself provides good guidance to courts as they interpret the true meaning of the Act and thus legislative futility must be ruled out. A statute must be construed in such a manner so as to ensure that the Act itself does not become a dead letter and the obvious intention of the legislature does not stand defeated unless it leads to a case of absolute intractability in use. The court must adopt a construction which suppresses the mischief and advances the remedy and “to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico”. The court must give effect to the purpose and object of the Act for the reason that legislature is presumed to have enacted a reasonable 28 statute. (<cite>Vide M. Pentiah v. Muddala Veeramallappa [AIR 1961 SC 1107]</cite> , <cite>S.P. Jain v. Krishna Mohan Gupta [(1987) 1 SCC 191 : AIR 1987 SC 222]</cite> , <cite>RBI v. Peerless General Finance and Investment Co. Ltd. [(1987) 1 SCC 424 : AIR 1987 SC 1023]</cite>, <cite>Tinsukhia Electric Supply Co. Ltd. v. State of Assam [(1989) 3 SCC 709 : AIR 1990 SC 123]</cite> , SCC p. 754, para 118, <cite>UCO Bank v. Rajinder Lal Capoor [(2008) 5 SCC 257 : (2008) 2 SCC (L&S) 263]</cite> and <cite>Grid Corpn. of Orissa Ltd. v. Eastern Metals and Ferro Alloys [(2011) 11 SCC 334]</cite> .)” 21. The principle of construction of statutory Rules as laid down above would apply to the interpretation of Punjab Police Rules, 1934. We are of the opinion that the High Court did not commit any error in construing the Rules in the manner as was construed by the High Court. We endorse the view of the High Court interpreting the Punjab Police Rules, 1934. Chapter XIII of the Rules have to be conjointly and harmoniously construed and when we construe Rules 13.1, 13.14 and 13.15, we do not find any error in State promoting the Sub-Inspectors to Inspectors who have eight years’ approved service to their credit, at least 29 five years being as Sub-Inspectors. Thus, the High Court has rightly upheld the promotion orders of private respondents. No ground is made out to interfere with the judgment of the High Court in these appeals. The appeals are dismissed.

1. These appeals have been filed by the prosecution assailing the judgment of the High Court of Rajasthan dated 3rd January, 2012 acquitting the respondents charged for the offences under Sections 302, 201 read with Section 34 IPC. 2. As per case of the prosecution, on 19th October, 2002 in the morning at 12.30 p.m., the informant Abdul Haq gave a written 1 report   that   in   the   intervening   night   of   18th  and   19th  October, 2002, while he was sleeping in his railway quarter situated at Borkheda Culvert near the railway line, Kota at about 12.05 a.m., one Madan Bheel and Parmanand Bheel came to his quarter and woke  him   up   and   stated   that  the   dead   body   of   one   unknown person   was   lying   beneath   the   culvert   at   916/8.10   km   of   the railway line, Kota (Rajasthan).  Thereupon, he reached there and saw that dead body had injuries on its head, mouth and face.  On inquiry, Smt. Saroti Bai Bheel disclosed that sometime before she woke up for urinating, she saw two­three persons coming by an auto rikshaw, who had placed the said body on the railway line and   had   gone   away.     One   person   who   was   standing   there revealed   that   the   said   dead   body   was   of   Bajranglal,   retired Constable.  From the facts of the report made by informant Abdul Haq, the Police Station Incharge reached at the spot and found an offence under Sections 302, 201 read with Section 34 IPC. This report was sent with Shri Fazlur Rehman, Head Constable for registering a case to Police Station Nayapura, Kota. 3. Crime   No.   679/02   was   registered   by   the   Head   Constable and First Information Report was sent to the Police Station In­ 2 charge.  Thereafter, the investigation was done and charge­sheet was submitted against the respondents Mahesh Kumar, Dinu @ Deendayal and Bhaiya @ Devkaran in the Court of Magistrate. Learned Magistrate handed over the case to the Sessions Court, Kota   from   where   it  was   transferred   to   the   Court  of   Additional Sessions Judge, No. 2, Fast Track, Kota. 4. The prosecution in support thereof produced 25 witnesses and   got   exhibited   Exhibit   P­1   to   P­45   in   its   documentary evidence.     Thereafter,   the   statements   of   the   respondents   were recorded under Section 313 of Code of Criminal Procedure, 1973. In   defence,   DW­1   Rajendra   Singh   was   produced   and   the statements   of   prosecution   witnesses   Pratap   and   Bhupendra recorded under Section 161 of Code of Criminal Procedure, 1973 were relied as Exhibit D­1 and D­2. 5. The learned Sessions Judge, based on the material available on record, held all the respondents guilty under Sections 302, 201 read with Section 34 IPC and sentenced them to undergo imprisonment   for   life   along   with   fine,   which   came   to   be challenged by the respondents in Appeal under Section 374 of 3 the Code of Criminal Procedure, 1973 before the Division Bench of the High Court of Rajasthan, Jaipur Bench, Jaipur. 6. On appraisal of the records, the High Court in its impugned judgment dated 3rd  January, 2012  recorded  a finding  that  the chain of circumstantial evidence produced by the prosecution is very doubtful, contradictory and not reliable at all.  At the same time, it was also observed that most of the prosecution witnesses were declared hostile and many important and relevant witnesses without any reason has not been produced by the prosecution.   7. Dayaram and Gulab, who identified the dead body of the deceased   Bajranglal   and   who   lifted   the   dead   body   from   the railway   track   and   kept   in   side   have   not   been   produced.     The Samdhi   of   deceased   Bajranglal   and   Brijgopal,   father   of   PW­5 Rajeshbai were not produced.  That apart, the witnesses alleging the   reason   for   murder   Surendrasingh,   Ramgopal,   Ramswarup, Girraj  Gupta,  Premchand  and   Shyambabu  were  not  produced. The motive of the incident which is allegedly the illicit relation of Sulochana and respondent­Mahesh, the said Sulochana has not been produced as prosecution witness.  The witnesses of Memos 4 Exhibit P­13, P­15, P­41, etc. Dilipsingh have not been produced. Witness   Hemraj   of   Memos   Exhibit   P­30,   P­35   and   P­36   and witnesses   Manoj,   Vijay   of   Memo   Exhibit   P­41   have   not   been produced.  Fazlur Rahman, Police Head Constable who took the written report Exhibit P­24 and gone to the Police Station and on his written report, FIR was registered, has not been produced. The aunt of Ramesh who along with PW­2 Narendra is alleged to have   gone   to   Rajesh   has   not   been   produced.     The   witness   of Exhibit   P­20   Bharatram,   Rais   Mohammad,   Surendrasingh   and Brijgopal   have   not   been   produced.     The   witness   Balak   @ Mansingh and Imam of the Memo of Arrest of the accused Exhibit P­26, P­27, P­28 and P­32 have not been produced. 8. It has further been observed that the prosecution failed to tender   any   justification   that   all   the   three   respondents   were arrested   on   19th  October,   2002   at   11.30   p.m.   but   why proceedings of the recoveries were undertaken after gap of 3 to 10 days, i.e., on 23rd, 25th, 26th  and 29th  October, 2002.   It has also been pointed out by the High Court that the Investigating Officer in his statement has recorded that no blood marks were found in the auto, which could not establish that the auto as 5 alleged  was  carrying   the   body   of   deceased   to  the   railway   line. PW­1 Madan Bheel and PW­4 Parmanand Bheel were declared hostile   and   PW­5   Smt.   Rajeshbai,   daughter­in­law   of   the deceased, in cross­examination, deposed that whatever she had told earlier with respect to the incident was hearsay and has not supported the prosecution. 9. It   reveals   from   the   record   that   most   of   the   prosecution witnesses   have   been   declared   hostile   and   the   statement   of witnesses produced suffer from serious material contradictions. In the light of statements of prosecution witnesses suffering from material deficiencies, the High Court arrived at the conclusion that   the   circumstantial   evidence   produced   by   the   prosecution appears to be doubtful, contradictory and is not safe to rely upon and acquitted the respondents from charge under Section 302, 201   IPC   and   released   them   from   judicial   custody   under   its impugned judgment dated 3rd January, 2012. 10. It is well settled that in the cases of circumstantial evidence, the   circumstances from  which the   conclusion  of  guilt  is  to  be drawn should in the first instance be fully established, and all 6 the   facts   so   established   should   be   consistent   only   with   the hypothesis of guilt of the accused.  The circumstances should be of a conclusive nature and should be such as to exclude every hypothesis but the one proposed to be proved.   In other words, there must be a complete chain of evidence as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused and none else. 11. The   enunciation   of   law   pertaining   to   circumstantial evidence, its relevance and decisiveness, as a proof of charge of a criminal   offence,   is   amongst   others   traceable   decision   of   this Court   in  <cite>Sharad   Birdhichand   Sarda  Vs.  State   of Maharashtra 1984(4) SCC 116</cite>.  The relevant excerpts from para 153 of the decision is assuredly apposite:­ “153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1)   the   circumstances   from   which   the   conclusion   of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances   concerned   “must   or   should”   and   not 7 “may be” established. There is not only a grammatical but a legal distinction between “may be proved” and “must   be   or   should   be   proved”   as   was   held   by   this Court in <cite>Shivaji Sahabrao Bobade & Anr. Vs.  State of   Maharashtra [(1973)   2   SCC   793</cite>   where   the observations were made:     accused must be “Certainly, it is a primary principle that the and   not merely may be   guilty   before   a   court   can convict   and   the   mental   distance   between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.” (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should  not  be explainable on  any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4)   they   should   exclude   every   possible   hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” 12. It has been further relied by this Court in <cite>Sujit Biswas Vs. State of Assam 2013(12) SCC 406</cite> and <cite>Raja alias Rajinder Vs. State of Haryana  2015(11) SCC 43</cite> and has been propounded that while scrutinising the circumstantial evidence, it is the duty of the Court to evaluate it to ensure the chain of events clearly established and completely to rule out any reasonable likelihood 8 of   innocence   of   the   accused.     It   is   true   that   the   underlying principle   whether   the   chain   is   complete   or   not,   indeed   would depend on the facts of each case emanating from the evidence and   there   cannot   be   a   straitjacket   formula   which   can   be   laid down for the purpose.   It is always to be kept in mind that the circumstances adduced when considered collectively, must lead only to the conclusion that there cannot be a person other than the accused who alone is the perpetrator of the crime alleged and the   circumstances   must   establish   the   conclusive   nature consistent only with the hypothesis of the guilt of the accused. 13. On analysis of the overall fact situation, we find that the High Court in its impugned judgment has elaborately considered the   circumstantial   evidence   which   has   been   adduced   by   the prosecution and arrived to the conclusion that many important and   relevant   witnesses   have   not   been   produced   by   the prosecution on which a detailed reference has been made in para 23 of the impugned judgment which we consider it appropriate to quote:­ “23. It has also to be mentioned that in the case many   important   and   relevant   witnesses   the prosecution has not produced.  As has been mentioned 9 above   that   the   dead   body   of   the   deceased   at   which place has been found, that the person who identified it has   the  dead   body   of   Bajranglal   there   has   not   been produced.     Dayaram   and   Gulab   who   lifted   the   dead body   from   the   railway   track   and   kept   in   side   those Dayaram   and   Gulab   also   have   not   been   produced. According   to   P.W.5   Rajeshbhai   Rameshchand   to   her and   her   father   gave   information   of   the   death   of   her father­in­law   Bajranglal,   this   Ramesh   has   not   been produced.     The   Samdhi   of   deceased   Bajranglal   and Brijgopal,   father   of   P.W.   5   Rajeshbai   have   not   been produced who are also the witnesses of Exhibit P.20, P.21 and P.25 Memos.   According to prosecution the witnesses   alleging   the   reason   for   murder Surendrasingh, Ramgopal, Ramswarup, Girraj Gupta, Premchand and Shyambabu have not been produced. The owner of the Auto Rickshaw Sobhagsingh has not been   produced.     The   motive   of   the   incident,   which relation   of   Sulochana   and   Mahesh   has   been   alleged that Sulochana has not been produced.  The witnesses of Memos Exhibit P.13, P.15, P.41 etc.  Dilipsingh has not been produced.  Witness Hemraj of Memos Exhibit P.30, P.35 and P.36 an witness Manoj Vijay of Memo Exhibit   P.41   have   not   been   produced.     That   Fazlur Rahman   Police   Head   Constable   also   has   not   been produced who taking written report Exhibit P.24 had gone to the police station and on this getting written the F.I.R. Exhibit P.44 and taking that had come back to S.H.O. at the site.  P.W.2 Narendra taking with him the aunt of Ramesh is alleged to have gone to Rajesh. This aunt of Ramesh has not been produced.  Witness Madrasi,   Bhoorsingh,   Shambhusingh   Kaushi   etc. shown in the site plan Exhibit P.25 the dead body lying have not been produced.   The witness of Exhibit P.20 Bharatram,   Rais   Mohammad,   Surendrasingh   and Brijgopal have not been produced.  The witness Balak @ Mansingh and Imam of the Memo of arrest of the accused   Exhibit   P.26,   P.27,   P.28   and   P.32   have   not been produced.”       14. After   hearing   learned   counsel   for   the   parties   and   after perusal of the impugned judgment and material of the case on record, we are of the considered view that the prosecution has 10 failed   to   complete   the   chain   of   events   leaving   any   reasonable ground for the conclusion consistent with all human probability that the act must have been done only by the respondents. 15. We   find   no   error   being   committed   by   the   High   Court   in arriving   to   the   conclusion   as   aforesaid   noticed   by   us   in   the impugned judgment dated 3rd January, 2012. 16. Consequently, both the appeals are wholly devoid of merit and accordingly dismissed.  17. Pending application(s), if any, also stand disposed of. 

2. Feeling   aggrieved   and   dissatisfied   by   the   impugned judgment and order dated 17.07.2015 passed by the High Court at Guwahati in R.S.A. No. 173/2003, by which the High Court has   dismissed   the   said   appeal   preferred   by   the   appellant herein/plaintiff   and   has   confirmed   the   judgment   and   decree passed by the learned trial Court dismissing the suit, confirmed 2 by the first appellate Court, the original plaintiff has preferred the present appeal. 3. The facts leading to the present appeal in nut and shell are as under: 3.1 That   the   appellant   herein/original   plaintiff   (hereinafter referred to as the ‘original plaintiff’) purchased the suit land by a registered sale deed dated 06.01.1990 from Late Pranab Kumar Bora, husband of original defendant no.2 and father of original defendant nos. 3 to 8.  It appears that the suit land was declared as ceiling surplus land in the year 1988 and consequently the same was acquired by the Government.   However, subsequently on 14.09.1990, the suit land was again declared ceiling free land. That   thereafter,   the   original   plaintiff   mutated   the   land   in   his name vide order dated 18.12.1991 in Mutation Case No.94/91­ 92,   and   accordingly   the   name   of   the   original   plaintiff   was recorded in the Sadar Jamabandi.   It appears that the original defendant no.1, an Ex­Police Officer. illegally entered into the suit land on 09.04.1995.  Therefore, the original plaintiff immediately filed a suit in the Court of learned Civil Judge, Junior division, which   was   numbered   as   Title   Suit   No.   230/1995,   praying   for giving possession of the suit land by evicting defendant no.1.  The 3 original plaintiff also prayed for a decree of declaration, declaring that he has a right, title and interest over the suit land.   The original plaintiff also prayed for permanent injunction.  That the said suit was filed in the month of July, 1995. 3.2 That the learned trial Court decreed the suit by its judgment and decree dated 28.08.1998 specifically holding that the original plaintiff purchased the suit land by valid document and has got right, title and interest over the suit land. 4. Feeling   aggrieved   and   dissatisfied   with   the   judgment   and decree passed by the learned trial Court, the original defendant no.1   filed   Title   Appeal   No.   36/1998   before   the   first   appellate Court.   At this stage, it is required to be noted that so far as original defendant nos. 2 to 4 are concerned, as such, they did not   challenge   the   judgment  and  decree   passed   by  the   learned trial Court holding that the original plaintiff purchased the suit land by valid document.   That the first appellate Court, by its judgment and order dated 15.09.1999, allowed the said appeal preferred   by   original   defendant   no.1   and   remanded   back   the matter to the learned trial Court, framing an additional issue to the   effect   that   “Whether   the   suit   land   was   declared   ceiling surplus land and as such it was acquired by the Government in 4 the year 1988 and as such whether the vendor had any saleable right to sell the suit land to the plaintiff on 6.1.1990”. 4.1 That   thereafter   on   remand,   the   learned   trial   Court considering  the   additional  issue  dismissed  the   suit  by  holding that disputed land was declared as ceiling surplus land by the Government and therefore as such the vendor had no right to sell the suit land by sale deed dated 06.01.1990, and there being so, the original plaintiff has no right, title and interest over the suit land. 4.2 The judgment and decree passed by the learned trial Court came to be confirmed by the first appellate Court, by judgment and order dated 04.06.2003.   At this stage, it is required to be noted that while dismissing the appeal and concurring with the finding recorded by the learned trial Court that the vendor of the original plaintiff had no right to sell the suit land after the suit land   was   declared   as   ceiling   surplus   land,   the   first   appellate Court  also  came   to  the   conclusion   that   the   defendants’   rights over the suit land also could not be established under Section 53A of the Transfer of Property Act (hereinafter referred to as the ‘ T.P.Act’).     At   this   stage,   again   it   is   required   to   be   noted   that original defendant no.1 did not file any appeal against the said 5 observation, and as such, the same has attained finality, which means original defendant no.1’s right over the suit land was also declined.   The judgment and order passed by the first appellate Court, confirming the judgment and decree passed by the learned trial Court dismissing the suit, has been further confirmed by the High Court, by the impugned judgment and order.   Hence, the original plaintiff has preferred the present appeal. 5. Ms.   V.   Mohana,   learned   senior   advocate,   appearing   on behalf   of   the   appellant/original   plaintiff,   has   vehemently submitted that all the Courts below have not at all considered Section   43   of   the   Transfer   of   Property   Act.     It   is   vehemently submitted by Ms. Mohana, learned senior counsel appearing on behalf of the original plaintiff that it is an admitted position that after   the   execution   of   the   sale   deed   dated   06.01.1990, subsequently the suit land was made ceiling free on 14.09.1990, and   therefore   the   sale   deed   became   a   valid   sale   deed.     It   is submitted, that in view of Section 43 of the T.P. Act, the rights of the original plaintiff in the suit land, pursuant to sale deed dated 16.01.1990 are protected.   In support of her above submission, Ms. Mohana, learned counsel appearing on behalf of the original plaintiff has heavily relied upon the decision of this Court in the 6 case of <cite>Ram Pyare vs. Ram Narain and others, (1985) 2 SCC 162</cite>. She has also relied upon another decision of this Court in the case of  <cite>Jumma Masjid vs. Kodimaniandra Deviah, AIR 1962 SC 847</cite>. 5.1 Ms. Mohana, learned senior counsel appearing on behalf of the  original plaintiff  has further submitted that all  the  Courts below have materially erred in not appreciating the fact that as such it was the original plaintiff who approached the Court for declaration   and   permanent   injunction,   claiming   rights   on   the basis of a registered sale deed dated 06.01.1990, and the cause of action arose when original defendant no.1 illegally entered into the suit land.   It is submitted that as such the first appellate Court has specifically held against original defendant no.1 that the original defendant no.1 also has no right, title and interest on the suit land on the basis of the agreement to sell as none of the ingredients of Section 53A of the Act are satisfied.  It is submitted that as such the aforesaid finding recorded by the first appellate Court  had   attained   finality,   and   therefore   it  is   concluded   that original defendant no.1 had no right, title and interest in the land in   question.     It   is   further   submitted   by   Ms.   Mohana,   learned senior counsel appearing on behalf of the original plaintiff that so 7 far as original defendant nos. 2 to 8 – legal heirs of the original vendor are concerned, they never challenged the registered sale deed dated 06.01.1990, and they also never claimed any right, title or interest in the suit land. 5.2 Making the above submissions, and relying upon the above decisions, it is prayed to allow the present appeal, set aside the judgment   and   decree   passed   by   the   learned   trial   Court, confirmed by the first appellate Court and the High Court, and consequently to decree the suit filed by the original plaintiff. 6. The present appeal is opposed by Shri Hariharan, learned advocate appearing on behalf of legal heirs nos. 1/1 and 1/6 of the   deceased   original   defendant   no.1.     Office   report   dated 22.12.2018 indicates that service on legal heirs nos. 1/2,1/4 and 1/5   is   complete   but   no   one   has   entered   appearance   on   their behalf.   The said office report also indicates that notice sent to legal heir no. 1/3 has been received back with postal remarks “refused” and as such service is deemed to be complete upon her. The   said   office   report   further   indicates   that   service   is   also complete   on   respondent   nos.   2   to   8   but   no   one   has   entered appearance on their behalf. 8 6.1 Shri   Hariharan,   learned   advocate   appearing   on   behalf   of original defendant no.1 (now on behalf of legal heirs nos. 1/1 and 1/6)   has   vehemently   submitted   that   there   are   concurrent findings of facts by all the Courts below that at the time when the sale deed was executed in favour of the original plaintiff, i.e., on 06.01.1990, the land in question was ceiling surplus land, and therefore   was   a   government   land,   and   therefore   the   original vendor was not the owner of the suit land, and therefore had no right, title or interest in the suit land, and therefore the plaintiff had no right, title or interest in the suit land on the basis of the registered sale deed dated 06.01.1990.  It is submitted therefore all the Courts below have rightly dismissed the suit. 6.2 So far as the reliance placed by the learned senior counsel appearing on behalf of the plaintiff on Section 43 of the T.P. Act is concerned, it is vehemently submitted by Shri Hariharan that by getting the protection under Section 43 of the T.P. Act, the vendee   has   to   prove   that   the   transferor   acted   fraudulently   or erroneously   represented.     It   is   submitted   by   Shri   Hariharan, learned counsel appearing on behalf of the legal heirs of original defendant no.1 that in the present case the ingredients of Section 9 43 of the T.P. Act are not satisfied, and therefore the rights of the original plaintiff are not protected under Section 43 of the Act. 6.3 Making the above submissions, it is prayed to dismiss the appeal. 7. Heard learned counsel on behalf of the respective parties at length. 7.1 At the outset, it is required to be noted that the following facts are not in dispute: i) that   the   original   plaintiff   purchased   the   suit   land   by   a registered sale deed dated 06.01.1990, executed by late Pranab Kumar Bora on payment of full sale consideration; ii) that  as  on  06.01.1990,  the   suit  land   was   ceiling   surplus land and the government was the owner; iii) that   the   land   in   question   became   ceiling   free   land   on 14.09.1990; iv) that the name of the original plaintiff was mutated in the revenue record – Sadar Jamabandi vide order dated 18.12.1991 in Mutation Case No. 94/91­92; v) that   neither   the   vendor   nor   the   heirs   of   the   vendor challenged   order   dated   18.12.1991   by   which   the   name   of   the plaintiff was mutated in the revenue record; 10 vi) that when the earlier suit was decreed by the learned trial Court, it was only the original defendant no.1 who challenged the judgment and decree passed by the learned trial Court and no appeal was preferred by original defendant nos. 2 to 7, heirs of the original vendor; and  vii) that   in   the   second   round   of   litigation,   the   first   appellate Court specifically observed against original defendant no.1 that he has also no right, title or interest in the suit land on the basis of   prior   agreement   to   sell   and   the   said   finding   had   attained finality.  7.2 It   is   required   to   be   noted   that   as   such   the   heirs   of   the original vendor are not contesting the proceedings and it is only original defendant no.1 (now the legal heirs of original defendant no.1) are contesting the proceedings.   Thus, it appears and/or nothing is on record to show that it was the case on behalf of the original   defendants,   more   particularly   on   behalf   of   the   vendor that the original plaintiff was informed specifically at the time of execution   of   the   sale   deed   dated   06.01.1990   that   the   land   in question   is   ceiling   surplus   land.     In  the   light  of   the  aforesaid facts, Section 43 of the T.P. Act, which is heavily relied upon on behalf of the original plaintiff is required to be considered. 11 7.3 Section 43 of the Act reads as under: “43.   Transfer   by   unauthorised   person   who subsequently   acquires   interest   in   property transferred   –   where   a   person   [fraudulently   or] erroneously   represents   that   he   is   authorised   to transfer certain immovable property and professes to  transfer  such  property  for  consideration,  such transfer   shall,   at   the   option   of   the   transferee, operates on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists. Nothing   in   this   Section   shall   impair   the   right   of transferees in good faith for consideration without notice of the existence of the said option”. 7.4 Section   43   of   the   T.P.   Act   provides   that   where   a   person fraudulently or erroneously represents that he is authorised to transfer   certain   immovable   property   and   professes   to   transfer such property for consideration, such transfer shall, at the option of the transferee, operates on any interest which the transferor may   acquire   in   such   property   at   any   time   during   which   the contract of transfer subsists.  Thus, if at the time of transfer, the vendor/transferor   might   have   a   defective   title   or   have   no   title and/or no right or interest, however subsequently the transferor acquires the right, title or interest and the contract of transfer subsists,   in   that   case   at   the   option   of   the   transferee,   such   a transfer is valid.   In such a situation, the transferor cannot be 12 permitted to challenge the transfer and/or the transferor has no option to raise the dispute in making the transfer. 7.5 The intention and objects behind Section 43 of the T.P. Act seems   to   be   based   on   the   principle   of   estoppel  as   well  as   the equity.     The   intention   and   objects   seems   to   be   that   after procuring   the   money   (sale   consideration)   and   transferring   the land,   thereafter   the   transferor   is   estopped   from   saying   that though he has sold/transferred the property/land on payment of sale consideration, still the transfer is not binding to him.  That is why Section 43 of the T.P. Act gives an option to the transferee and not the transferor.   The intention of Section 43 of the Act seems to be that no body can be permitted to take the benefits of his   own   wrong.     In   the   facts   and   circumstances   of   the   case, Section 43 of the Act would come into play and protect the rights of the original plaintiff. 8. An identical question came to be considered by this Court in the   case   of  <cite>Ram   Pyare   (supra)</cite>.     In   the   aforesaid   decision,   on considering Section 43 of the Act, it is observed and held by this Court that as the sale deed in favour of the vendee was result of an erroneous representation of the vendor, thereafter the sons of the   vendor,   cannot   claim   to   be   transferees   in   good   faith   and 13 therefore their suit for cancellation of the sale deed would not be maintainable.   In the aforesaid decision,  this Court considered the following observations of this Court in another decision in the case of <cite>Jumma Masjid (supra)</cite>: “This   reasoning   is   open   to   the   criticism   that   it ignores the principle underlying Section 43. That section   embodies,   as   already   stated,   a   rule   of estoppel  and   enacts   that   a   person   who   makes   a representation   shall   not   be   heard   to   allege   the contrary   as   against   a   person   who   acts   on   that representation.   It   is   immaterial   whether   the transferor acts bona fide or fraudulently in making the representation. It is only material to find out whether in fact the transferee has been misled. It is to   be   noted   that   when   the   decision   under consideration   was   given,   the   relevant   word of Section  43 were,   "where   a   person   erroneously represents",   and   now,   as   amended   by   Act   20   of 1929,   they   are   "where   a   person   fraudulently   or erroneously represents", and that emphasises that for   the   purpose   of   the   section   it   matters   not whether   the   transferor   act   fraudulently   or innocently in making the representation, and that what   is   material   is   that   he   did   make   a representation and the transferee has acted on it. Where   the   transferee   knew   as   a   fact   that   the transferor   did   not   possess   the   title   which   he represents he has, then he cannot be said to have acted   on   it   when   taking   a   transfer. Section 43 would   then   have   no   application,   and   the transfer will fail under Section 6(a). But where the transferee does act on the representation, there is no reason why he should not have the benefit of the   equitable   doctrine   embodied   in   Section   43, however fraudulent the act of the transferor might have been.”  14 9. At  this   stage,  it  is   required   to  be   noted  that  as   observed hereinabove in the present case as such the heirs of the original vendor are not contesting the proceedings and they have never disputed the right, title or interest of the original plaintiff, and it is   the   original   defendant   no.1   and   now   his   heirs   who   are contesting   the   proceedings.     Heirs   of   the   original   vendor   have never initiated any proceedings for cancellation of the registered sale deed dated 06.01.1990, and/or they have never claimed any right,  title or  interest  in the suit  land after the  registered  sale deed   dated   06.01.1990.     As   such,   in   the   case   of  Ram   Pyare (supra), applying Section 43 of the Act, this Court has specifically observed   and   held   that   once   there   was   an   erroneous representation by the vendor, thereafter the suit by the heirs of the   vendor   for   cancellation   of   the   sale   deed   would   not   be maintainable.     Under   the   circumstances   and   in   the   facts   and circumstances of the case, the rights of the original plaintiff in the suit land by a sale deed dated 06.01.1990 would be protected by operation of Section 43 of the Act.  Therefore, the finding recorded by all the Courts below that the original plaintiff has no right, title or interest in the suit land on the basis of a registered sale deed 15 dated 06.01.1990 cannot be sustained and the same deserves to be quashed and set aside. 10. Now so far as the other reliefs prayed in the suit, namely, (i) to   get   back   a   decree   for   return   of   possession   from   original defendant no.1;   and (ii) that a decree for permanent injunction are concerned, deserve to be granted, as the first appellate Court has specifically observed and held against original defendant no.1 that he has no right, title or interest in the suit land and the said finding has attained finality.  Once, it is held that he has no right, title or interest in the suit land, and that the plaintiff has a right, title   or   interest   on   the   basis   of   a   registered   sale   deed   dated 06.01.1990, and he claimed to be in possession on the basis of a registered sale deed dated 06.01.1990, which came to be disputed by   original   defendant   no.1   subsequently,   the   defendant   no.1 cannot be permitted to be continue in possession, and therefore the original plaintiff is entitled to other reliefs also. 11. For the reasons stated above, the present appeal succeeds and is allowed.  The impugned judgment and order passed by the High   Court,   as   also,   the   judgment   and   decree   passed   by   the learned  trial Court,  confirmed  by  the  first  appellate  Court,  are hereby   quashed   and   set   aside.     Consequently,   Title   Suit   No. 16 230/1995 preferred by the original plaintiff is hereby decreed in toto.  However, in the facts and circumstances of the case, there shall be no order as to costs. 

(2) This appeal arises out of judgment of the High Court of Judicature at Madras in Criminal Appeal No.375 of 2007 dated 7th September, 2015 in and by which the High Court affirmed the conviction of the appellant-accused under Section 306 I.P.C. and reduced the sentence of imprisonment of the appellant from three years to three months. (3) Case of the prosecution is that on 2nd December, 2001, the appellant-accused advanced a sum of Rs.80,000/- by way of debt to the deceased, by name – Rajagopal, and to that effect he obtained a promissory note. On 7th December, 2002, the appellant-accused demanded Rs.50,000/- towards the interest and another Rs.50,000/- towards principal amount. On 21st June, 2003, in the presence of some witnesses, the deceased stated 2 that he would discharge the entire loan amount; but he was not able to keep up his promise. Due to the alleged torture by the appellant-accused, on 21st June, 2003 at about 11:50 p.m. the deceased committed suicide. The deceased is said to have left suicide note (M.O.1) stating that he is unable to repay the loan and taking the extreme step. (4) Upon consideration of oral evidence and suicide note (M.O.1), the Trial Court held that the prosecution has established the guilt of the accused under Section 306 I.P.C. and sentenced him to undergo rigorous imprisonment for three years and also imposed fine of Rs.500/-. (5) In the appeal filed by the appellant-accused, the High Court held that the receipt of money and the execution of the promissory note and the alleged torture committed by the appellant has been proved by the prosecution. Referring to the evidence of PW-1 to PW-5, who are the wife, daughters and the sons of the deceased, and also suicide note (M.O.1), the High Court has held that the prosecution has clearly established the guilt of the appellant-accused under Section 306 I.P.C. and on those findings affirmed the conviction of the appellant- accused; but reduced the sentence of imprisonment, as aforesaid in para ‘2’. (6) We have heard Mr. S. Hari Haran, learned counsel appearing for the appellant, and Mr. M. Yogesh Kanna, learned counsel appearing for the respondent-State of Tamil Nadu and also 3 perused the impugned judgment and the evidence/materials on record. (7) As pointed out by the High Court, of course PW-1 to PW-5 have spoken about the borrowing of money by the deceased and also the execution of the promissory note. The sheet anchor of the prosecution’s case to prove the guilt of the accused is the suicide note (M.O.1)-written by the deceased. On perusal of suicide note (M.O.1), it is seen that in M.O.1 the deceased has written about the financial difficulties faced by him and his inability to meet the financial crunch and also his inability to repay the same. The tenor of M.O.1 only shows that the deceased was subjected to pressure for payment and was facing the financial difficulty. In M.O.1 (letter) there is nothing to indicate that there was instigation by the appellant-accused which had driven the deceased to take the extreme step of committing suicide. (8) The essential ingredients of the offence under Section 306 I.P.C. are: (i) the abetment; (ii) the intention of the accused to aid or instigate or abet the deceased to commit suicide. The act of the accused, however, insulting the deceased by using abusive language will not, by itself, constitute the abetment of suicide. There should be evidence capable of suggesting that the accused intended by such act to instigate the deceased to commit suicide. Unless the ingredients of instigation/abetment to commit suicide are satisfied, accused cannot be convicted under Section 306 I.P.C. 4 (9) In our considered view, in the case at hand, M.O.1-letter and the oral evidence of PW-1 to PW-5, would not be sufficient to establish that the suicide by the deceased was directly linked to the instigation or abetment by the appellant- deceased. Having advanced the money to the deceased, the appellant-accused might have uttered some abusive words; but that by itself is not sufficient to constitute the offence under Section 306 I.P.C. From the evidence brought on record and in the facts and circumstances of the case, in our view the ingredients of Section 306 I.P.C. are not established and the conviction of the appellant-accused under Section 306 I.P.C. cannot be sustained. (10) In the result, the impugned order is set aside and the appeal is allowed.

1. The petitioners made an application for establishment of a new medical college at Banthra, Shahjahanpur, U.P., in the name and style of Varunarjun Medical College from academic session 2016-17 onwards, to the Ministry of Health and Family Welfare, Government of India. The Ministry forwarded that application to the Medical Council of India (for short “MCI”) for evaluation and making recommendations under Section 10A of the Indian Medical Council Act, 1956 (for short “the 1956 Act”). The MCI conducted an assessment of the petitioner college on 12th 2 and 13th January, 2016. On the basis of the assessment report, the Executive Committee of MCI, in its meeting held on 30th January, 2016, decided to make negative recommendations, in view of a large number of deficiencies noticed in the assessment report. A formal communication in that behalf was sent to the Central Government by MCI vide letter dated 31st January, 2016. The Ministry then afforded an opportunity of hearing to the college before a Hearing Committee on 25th February, 2016. The Hearing Committee concurred with the recommendation of MCI and submitted its observations to the Ministry to disapprove the proposal. Later on, compliance verification assessment was done by MCI on 30th March, 2016, which report was duly considered by the Executive Committee of MCI in its meeting held on 13th May, 2016. Once again, MCI in its meeting held on 13th May, 2016 decided to give negative recommendations in view of the deficiencies noticed in the compliance verification assessment. That opinion was formally communicated by the MCI to the Ministry vide letter dated 14th May, 2016. The Ministry accepted the recommendation of MCI and disapproved the application for 3 establishment of a new medical college for academic session 2016-17 vide letter dated 8th June, 2016. 2. The Oversight Committee (for short “OC”) constituted by this Court, however, issued a directive to the Ministry to obtain fresh compliance from the college and forward it to MCI. Pursuant to the said directive, MCI submitted its compliance to the Ministry citing various reasons. However, the OC approved the scheme of establishment of a new medical college with annual intake of 150 students for the academic year 2016-17, on certain conditions. The Central Government, therefore, issued a formal approval-cum-Letter of Permission (for short “LOP”) on 12th September, 2016 incorporating the conditions imposed by the OC. 3. As per the conditions noted in the said LOP, an assessment with regard to verification compliance submitted by the college was conducted by the MCI on 18th & 19th November, 2016. During the said verification, certain deficiencies were noticed which were mentioned in the assessment report. The assessment report was duly considered by the Executive Committee of MCI in its meeting held on 22nd December, 2016. In view of the deficiencies, MCI decided to send a negative recommendation to the Ministry. The deficiencies noticed were as follows: 4 “i. Deficiency of faculty is 16.79% as detailed in the report. ii. Shortage of Residents was 21.73% as detailed in the report. iii. There was only 1 Minor Operation on day of assessment. iv. There was 1 normal Delivery & NIL Caesarean Section on day of assessment. v. ICUs: There was only 1 patient each in MICU & SICU and 2 patients each in ICCU & PICU/NICU on day of assessment. vi. Details of Paramedical & Non-teaching staff available in the Institute are not provided. vii. MRD: ICD X classification of diseases is not followed for indexing. viii. Central Library: It is not air-conditioned.” 4. The decision of the MCI was formally communicated to the Ministry vide letter dated 26th December, 2016. After receipt of the recommendation from the MCI, the Ministry decided to afford a personal hearing to the college on 17th January, 2017 before the Director General of Health Services (DGHS). The Hearing Committee considered the oral and written submissions of the college, but was not satisfied with the explanation given by the petitioners for want of proper evidence. The Hearing Committee submitted its report to 5 the Ministry, which in turn forwarded the same to the OC for guidance. The OC vide letter dated 14th May, 2017 conveyed its views to the Ministry as follows: (i) (ii) Faculty: In the Standard Assessment Forms (SAF), Principal has mentioned that 4 faculty members had gone for exchange/withdrawal of money from the bank with permission of the Principal and 3 were on sanctioned leave. Considering this explanation, the deficiency would be 6.15%, which is within the acceptable limits. Residents:- In the SAF, Principal has mentioned that 5 Residents had gone for exchange/withdrawal of money from the bank with permission of the Principal and 3 were on sanctioned leave. Considering these residents, the deficiency would be 4.34%, which is within the acceptable limits. (iii) Minor operation:- This deficiency is subjective. No MSR. (iv) Deliveries:- This deficiency is subjective. No MSR. (v) ICCU & PICU/NICU:- This deficiency is subjective. No MSR. (vi) Non-teaching staff:- There is no such mention in SAF 2.24. (vii) Central Library:- There is no such mention in the previous assessment report. However, the explanation of the College is acceptable. LOP Confirmed.” 5. The Ministry after considering the recommendation of the MCI, the report of the DGHS and the views received from the OC, finally chose to accept the recommendation of the MCI. The decision of the Ministry was communicated to the petitioner college vide letter dated 31st May, 2017, debarring the college from admitting students for two years i.e. 6 2017-18 & 2018-19, and also authorising the MCI to encash the bank guarantee. 6. Feeling aggrieved by the said decision, the petitioners filed a writ petition before the Allahabad High Court, being WP (C) No.15302 of 2017 which was disposed of on 8th August, 2017 following the decision of this Court in the case of <cite>Glocal Medical College & Super Speciality Hospital and Research Centre Vs. Union of India and Anr.1</cite>, decided on 1st August, 2017. 7. Pursuant to the aforementioned decision of the High Court, the Ministry granted a hearing to the petitioner college on 16th August, 2017. It appears that the Hearing Committee considered the record, oral and written submissions of the college also the fresh representation given by the college. The Hearing Committee then submitted its report to the Ministry. Relying on the said recommendation of the Hearing Committee, the Ministry vide order dated 19th August, 2017 reiterated its earlier decision dated 31st May, 2017, debarring the college from admitting students for a period of two years i.e. 2017-18 & 2018-19 and also, authorising MCI to encash the bank guarantee of Rs.2 1 2017 (8) SCALE 356 7 Crore. This decision of the Ministry was communicated to the petitioners. The crucial part of this decision is in paragraphs 17 and 18 which read as follows: “17. Now, therefore, in compliance with the above direction of Court, the Ministry granted hearing to the college on 16.8.2017. The Hearing Committee after considering the records and oral & written submission of the college submitted its report to the Ministry. The findings of the Hearing Committee are as under: The college has tried to explain deficiency of 4 faculty and 5 residents in terms of visit to bank for currency exchange in the wake of demonetization. This could be a plausible explanation but the Committee is not inclined to accept it as it cannot be proved. Further, such absence during duty hours cannot be overlooked. The Committee inquired from the college why the 5 residents on night off could not come, even late, for the head count. They would have been accordingly reflected as such in the SAF. The college claimed 6 minor operations on the day of assessment but could not produce supportive document or evidence, which they claimed to have submitted in the earlier hearing. The contention of college on MRD and library is accepted and the deficiency may not exist. The college should be having paramedical non teaching staff but they did not produce the list/documents before the Hearing Committee. In view of the above the Committee agrees with the decision of the Ministry vide letter dated 31.05.2017 to debar the college for two years and also permit MCI to encash bank guarantee. 18. Accepting the recommendations of the Hearing Committee, the Ministry reiterates its earlier decision dated 31.05.2017 to debar the college from admitting students for a period of two years i.e. 2017-18 and 2018-19 and also to authorize MCI to encash the Bank Guarantee of Rs.2 Crore.” 8 8. Aggrieved, the petitioners have prayed for quashing of the said order and further, directing respondent No.1 (Union of India through Secretary, Ministry of Health and Family Welfare) to issue first renewal of Letter of Permission for admission of the 2nd batch of 150 MBBS students in the petitioner college for the academic session 2017-18 and also refrain from encashing the bank guarantee dated 15th September, 2017 offered by the petitioners in favour of MCI in the sum of Rs.2 Crore. 9. According to the petitioners, they had placed all the relevant material before the Competent Authority of the Central Government, clearly indicating that the deficiencies noticed in the concerned assessment report were insignificant and within permissible limit. Our attention was invited to the communication sent by the MCI dated 26th December, 2016, highlighting the deficiencies noticed by the Council Assessors on 18th & 19th November, 2016. The petitioners have also relied on the explanation offered by the petitioners before the Hearing Committee as well as OC. It is contended that the explanation found favour with the OC. The Competent Authority of the Central Government has, 9 however, completely disregarded the opinion of the OC. It was then contended that the recent report of the Hearing Committee does not take the matter any further. The relevant portion of the said report has been extracted in paragraph 17 of the impugned decision of the Ministry. On the one hand, the Hearing Committee observed that the explanation offered by the petitioner college regarding absence of faculty and residents was plausible, but it still chose to disregard that explanation on the specious ground that it was not proved. Further, no analysis as to why the opinion of the OC should be deviated is found in the observations of the Hearing Committee. It is contended that the absence of faculty and residents on the day of inspection ought to be excluded, in which case the deficiency of faculty would stand reduced to only 6.15% and of residents to only 4.34%. Further, the adverse observations noted by the Hearing Committee with regard to minor operations and paramedical non-teaching staff is not consistent with the record produced by the petitioner college during the hearing. It is submitted that in view of the recent pronouncements of this Court in respect of other 10 institutions, similar relief be given to the petitioner institution. A comparative chart of the deficiencies in respect of the said institutions was produced before us to contend that in so far as the petitioner college is concerned, the deficiencies were marginal and relatively less. The main grievance of the petitioners is that despite clear directions given by the Court to consider the proposal of the petitioner college after taking into account the material produced and explanation offered by the petitioners, including the fresh representation, neither the Hearing Committee nor the Competent Authority of the Central Government has adverted to the explanation and material relied upon by the petitioners. Moreso, neither the Hearing Committee nor the Competent Authority of the Central Government has analysed the opinion of the OC which had accepted the explanation or recorded any reason to deviate from the same. The fresh decision of the Competent Authority of the Central Government is, again, a mechanical order, if not perverse. It is against the spirit of the directions issued by the Court to reconsider the proposal afresh and record reasons. It is, therefore, submitted that the impugned 11 decision deserves to be quashed and set aside and further directions should be issued to the respondents to issue confirmation of Letter of Permission in favour of the petitioner college for the academic session 2016-17 and also allow the petitioner college to admit 150 students in the second batch of the MBBS course for the academic session 2017-18. 10. Per contra, the respondents submit that the final decision of the Competent Authority of the Central Government is just and proper, in the fact situation of the present case. Inasmuch as the Hearing Committee did not accept the explanation offered by the petitioner regarding the deficiencies relating to faculty members and residents. The Hearing Committee was also not convinced with the explanation given by the petitioners about their claim of 6 (six) minor operations as the college had failed to produce supporting documents and evidence in that regard. Similarly, the college failed to produce material to substantiate that the college had paramedical non-teaching staff which was one of the essential requirements. Learned counsel for the respondents submitted that the recent 12 decisions rendered by this Court on which reliance has been placed, were on the facts of the concerned case. Our attention was also invited to the relevant provisions of the Act, Regulations and Statutory Scheme formulated for consideration of application for permission to establish a medical college. It is submitted that the assessment done by the MCI in the present case was with regard to the verification of the compliance submitted by the college for considering the proposal for confirmation of conditional LOP granted to the petitioner college for the academic session 2016-2017. For that reason, the minimum standards regarding infrastructure and academic requirements as postulated in the Statutory Scheme must govern the consideration of the proposal. The benchmark regarding infrastructure and academics to be fulfilled by the applicant college for permission to establish medical college are pre-conditions. However, without fulfilment of those conditions, conditional LOP was granted to the petitioner college on the basis of direction issued by the OC, which was then acted upon by the Central Government by issuing a formal LOP for the academic session 2016-2017 on 13 conditions specified by the OC. The college has failed to fulfil those conditions as was noticed during the verification of compliance. It is submitted that no indulgence be shown to the petitioner college, much less, grant further relief claimed to allow the petitioner college to admit students in the second batch of the MBBS course for the academic session 2017-18. 11. Heard Mr. Rajiv Dhavan, learned senior counsel along with Mr. Abdhesh Chaudhary, learned counsel for the petitioner, Mr. Maninder Singh, learned Additional Solicitor General for Union of India and Mr. Vikas Singh, learned senior counsel along with Mr. Gaurav Sharma, learned counsel for the Medical Council of India. 12. We must first answer the submission of the petitioners that the satisfaction recorded by the OC whilst accepting the explanation offered by the petitioners was binding on the Central Government. We do not agree with this submission. It is one thing to say that the satisfaction/opinion recorded by the OC constituted by this Court is a relevant matter and which must receive due attention of the Hearing Committee as well as the Central 14 Government. But it is not possible to accept the contention that the opinion of OC must bind the Hearing Committee and the Central Government whilst discharging their statutory duties, moreso, when the legislative scheme of the Act has bestowed the final authority upon the Central Government to grant or refuse to grant permission in terms of Section 10-A of the Act. 13. Having said this, we may now advert to the deficiencies noticed in the assessment report regarding verification of compliance submitted by the college. The deficiencies noticed in the said report in respect of faculty members and residents were sought to be explained by the college - that 4 (four) faculty members and 5 (five) residents had gone for exchange/withdrawal of money from the bank with permission of the Principal and 3 (three) were on sanctioned leave. This explanation commended to the OC as plausible and on that basis, the OC was of the view that deficiency in respect of faculty members would stand reduced to the permissible limit. Hence, the OC recommended confirmation of LOP. The Hearing Committee, however, observed that the petitioner college did not 15 substantiate the stand so taken. Further, absence of such large number of faculties and residents during working-duty hours could not be countenanced. Additionally, the Hearing Committee was of the view that the college was not able to explain the absence of 5 (five) residents who were on night off and yet could not come, even late, for the head count. Besides, no entry to that effect was recorded in the Standard Assessment Forms (for short, “SAF”). The OC, however, has not commented on this aspect of the matter at all. In our opinion, the view taken by the Competent Authority of the Central Government is a possible view. The pre-conditions to maintain high academic standards for imparting MBBS course cannot be undermined. In this case, the deficiency of faculty and residents was significant, besides the other two deficiencies taken note of by the Hearing Committee and the Central Government in the impugned decision. For that, the college did not produce supportive documents or evidence in respect of its claim of 6 (six) minor operations and list of paramedical non-teaching staff. These deficiencies cannot 16 be treated as trivial or unrelated to maintenance of high standards of imparting medical education. 14. We are conscious of the fact that the proposal under consideration was for establishment of a new medical college from academic session 2016-17 and that has to be examined keeping in mind the norms specified in the statutory scheme formulated regarding permission to establish a new medical college. That scheme postulates the minimum standard of education, which has been formulated by the MCI in terms of Section 19-A of the Act. The scheme provides for minimum infrastructure facilities and staff requirements for 100 admissions. It also provides guidance as to how deficiency in respect of those matters should be calculated. The Medical Council of India has published those norms and the schemes for requirements to be fulfilled by the applicant College(s) for obtaining Letter of Intent and Letter of Permission for establishment of a new medical college and for yearly renewal under Section 10-A of the Act. Inter alia, it provides as follows:- “Notes: For purpose of working out the deficiency: (1) The deficiency of teaching faculty and Resident Doctors shall be 17 counted separately. (A) For Teaching Faculty: (a) For calculating the deficiency of faculty, Prof. Assoc Prof., Asst. Prof & Tutor in respective departments shall be counted together. (b) Any excess teaching faculty in higher cadre can compensate the deficiency of lower cadre of the same department only. (c) Any excess teaching faculty of lower cadre/category in any department cannot compensate the deficiency of any teaching faculty in the higher cadre/category of the same department or any other department. e.g. excess of Assistant Professor cannot compensate the deficiency of Associate Professor or Professor. (d) Excess/Extra teaching faculty of any department cannot compensate the deficiency of any teaching faculty in any other department. (B) For Resident Doctors: (a) Excess of SR can be compensated to the deficiency of JR of the same department only. (b) Excess SR/JR of any department cannot compensate the deficiency of SR/JR in any other department. (c)Any excess of JR cannot compensate the deficiency of SR in same or any other department. (d) Any excess/extra teaching faculty of same or any other department cannot compensate the deficiency of SR/JR. e.g. excess of Assistant Professor cannot compensate the deficiency of SR or JR. (2) A separate department of Dentistry/Dental faculty is not required where a dental college is available in same campus/city and run by the same management. (3) College running PG programme require additional staff, beds & other requirements as per the PG Regulations – 2000. Designat ion LOP (1st Batch) Ist Renewal (2nd Batch) Faculty total Resident Total 59 45 85 47 IInd Renewal (3rd Batch) 89 IIIrd Renewal (4th Batch) 97 IVth Renewal (5th Batch) 106 47 54 62 Recog- nition 106 62 15. It may be useful to advert to the Scheme dealing with grant of permission as substituted in terms of Gazette Notification dated 08.02.2016. The same reads thus:- 18 “8. GRANT OF PERMISSION: (i) The Central Government, on the recommendation of the Council for Letter of Permission, may issue a letter to set up a new medical college with such conditions or modifications in the original proposal as may be considered necessary. This letter can also include a clear cut statement of preliminary requirements to be met in respect of buildings, infrastructural facilities, medical and allied equipments, faculty and staff before admitting the first batch of students. The formal permission may be granted after the above conditions and modifications are accepted and performance bank guarantee for the required sums are furnished by the person and after consulting the Medical Council of India. (1) The formal permission may include a time bound programme for the establishment of the medical college and expansion of the hospital facilities. The permission may also define annual targets as may be fixed by the Council to be achieved by the person to commensurate with the intake of students during the following years. The following shall be added: “(3)(1). The permission to establish a medical college and admit students may be granted initially for a period of one year and may be renewed on yearly basis subject to verification of the achievements of annual targets. It shall be the responsibility of the person to apply to the Medical Council of India for purpose of renewal six months prior to the expiry of the initial permission. This process of renewal of permission will continue till such time the establishment of the medical college and expansion of the hospital facilities are completed and a formal recognition of the medical college is granted. Further admissions shall not be made at any stage unless the requirements of the Council are fulfilled. The Central Government may at any stage convey the deficiencies to the application and provide him an opportunity and time to rectify the deficiencies. PROVIDED that in respect of (a) Colleges in the stage upto II renewal (i.e. Admission of third batch): If it is observed during any regular inspection of the institute that deficiency of teaching faculty 19 and/or Residents is more than 30% and/or bed occupancy is<60% , such an institute will not be considered for renewal of permission in that Academic Year. (b) Colleges in the stage from III renewal (i.e. Admission of fourth batch till recognition of the institute for award of M.B.B.S. degree: If it is observed during any regular inspection of the institute that the deficiency of teaching faculty and/or Residents is more than 20% and/or bed occupancy is <70% , such an institute will not be considered for renewal of permission in that Academic Year. (c ) Colleges which are already recognized for award of M.B.B.S. degree and/or running Postgraduate Courses: If it is observed during any regular inspection of the institute that the deficiency of teaching faculty and/or Residents is more than 10% and/or bed occupancy is <80%, such an institute will not be considered for processing applications for postgraduate courses in that Academic Year and will be issued show cause notices as to why the recommendation for withdrawal of recognition of the courses run by that institute should not be made for Undergraduate and Postgraduate courses which are recognized u/s 11(2) of the IMPC Act, 1956 along with direction of stoppage of admissions in permitted Postgraduate courses. (c) Colleges which are found to have employed teachers with faked/forged documents: If it is observed that any institute is found to have employed a teacher with faked/forged documents and have submitted the Declaration Form of such a teacher, such an institute will not be considered for renewal of permission/recognition for award of M.B.B.S. degree/processing the applications for postgraduate courses for two Academic Years – i.e. that Academic Year and the next Academic Year also. However, the office of the Council shall ensure that such inspections are not carried out at least 3 20 days before upto 3 days after important religious and festival holidays declared by the Central/State Govt. (2)The recognition so granted to an Undergraduate Course for award of MBBS degree shall be for a maximum period of 5 years, upon which it shall have to be renewed. (2) The procedure for ‘Renewal’ of recognition shall be same as applicable for the award of recognition. (3) Failure to seek timely renewal of recognition as required in sub-clause (a) supra shall invariably result in stoppage of admissions to the concerned Undergraduate Course of MBBS at the said institute.” As per the terms of Notification published on 16.04.2010 in the Gazette of India. In terms of Gazette Notification dated 18.03.2016 the following additions/modifications/deletions/substitutions, shall be, as indicated therein: 3.(1) In Clause 8(3)(1)(a) under the heading of “Colleges in the stage upto II renewal (i.e. Admission of third batch)” shall be substituted as:- (a) Colleges in the stage of Letter of Permission upto II renewal (i.e. Admission of third batch). If it is observed during any inspection/assessment of the institute that the deficiency of teaching faculty and/or Residents is more than 30% and/or bed occupancy is <50% (45% in North East, Hilly terrain, etc.), compliance of rectification of deficiencies from such an institute will not be considered for issue of Letter of Permission (LOP/renewal of permission that Academic Year. In Clause 8(3)(1)(b) under the heading of “Colleges in the stage from III renewal (i.e. Admission of fourth batch) till recognition of the institute for award of M.B.B.S. degree” shall be substituted as:- (b) Colleges in the stage of III & IV renewal (i.e. Admission of fourth & fifth batch) 21 If it is observed during any inspection of the Institute that the deficiency of teaching faculty and/or residents is more than 20% and/or bed occupancy is <65% compliance of rectification of deficiencies from such an institute will not be considered for renewal of permission in that Academic Year. In Clause 8(3)(1)(c) under the heading of “Colleges which are already recognized for award of M.B.B.S, degree and/or running Postgraduate courses” shall be substituted as:- ( C) Colleges which are already recognised for award of M.B.B.S. degree and /or running Postgraduate courses. If it is observed during any inspection/assessment of the institute that the deficiency of teaching faculty and/or Residents is more than 10% and/or bed occupancy is <70%, compliance of rectification of deficiency from such an institute will not be considered for issue of renewal of permission in that Academic Year and further such ain institute will not be considered for processing applications for Postgraduate courses in that Academic Year and will be issued show cause notices as to why the recommendations for withdrawal of recognition of the courses run by that institute should not be made for undergraduate and postgraduate courses which are recognised u/s 11(2) of the IMC Act, 1956 along with direction of stoppage of admissions in permitted postgraduate courses. In Clause 8(3)(1)(d) under the heading “Colleges which are found to have employed teachers with fake/forged documents: the second paragraph shall be substituted as:- “However, the office of the Council shall ensure that such inspections are not carried out at least 2 days before and 2 days after important religious and festival holidays declared by the Central/State Govt.” 4. The Council may obtain any other information from the proposed medical college as it deems fit and necessary. Whenever the Council in its report has not recommended the issue of Letter of Intent to the person, it may upon being so required by the Central Government reconsider the application and take into account new or additional information as may be forwarded by the Central Government. The Council shall, 22 thereafter, submit its report in the same manner as prescribed for the initial report.” Considering the requirements of the scheme and as the petitioner college failed to fulfil the conditions specified by the OC as incorporated in the formal conditional Letter of Permission dated 12th September, 2016, the question of confirming the Letter of Permission for the academic session 2016-17 without removal of deficiencies in all respects does not arise. The petitioner college must first remove all those deficiencies to become eligible for confirmation of LOP, as per the undertaking given by the college in that regard. 16. The petitioners have relied upon recent decisions of this Court dealing with similar issues in the cases viz <cite>Dr. Jagat Narain Subharti Charitable Trust & Anr. Vs. Union of India and Ors. 2</cite> ; <cite>Gangajali Education Society & Anr. Vs. Union of India & Ors.3</cite>; <cite>Saraswati Educational Charitable Trust & Anr. Vs. Union of India & Ors. 4</cite>; <cite>Apollo Institute of Medical Sciences & Research & Ors. Vs. Union of India & Anr. 5</cite>, to contend that in similar situations, this Court preferred to rely on the 2 3 4 5 Writ Petition (C) No. 513 of 2017, decided on 30.08.2017. Writ Petition (C) No.709 of 2017, decided on 31.08.2017. Writ Petition (C) No. 515 of 2017, decided on 01.09.2017. Writ Petition (C) No. 496 of 2017, decided on 31.08.2017. 23 opinion given by the OC and overturned the conclusion reached by the Competent Authority of the Central Government for debarring the concerned institution from admitting students for a period of two years and authorising MCI to encash bank guarantee of Rs.2 Crore. This submission does not commend us. For, the dictum in those cases is contextual and on facts of those cases. In the present case, the Hearing Committee has duly considered the explanation offered by the college. It has, however, rejected the same for the reasons recorded in the impugned decision. The fact that specific reference to the opinion of the OC is absent in the conclusion recorded by the Hearing Committee, it does not follow that the issue has not been considered by the Hearing Committee or by the Central Government. The Competent Authority in the final decision after adverting to the observations of the OC and also of the Hearing Committee has noted that the absence of such large number of faculties and residents during duty hours was unacceptable and, moreso, failure of the college to ensure presence of 5 (five) residents on night off and yet could not come, even late, for the head count nor was it 24 reflected in the SAF. This aspect has not been dealt with by the OC in its opinion dated 14th May, 2017. Therefore, non-acceptance of the explanation offered by the college by the Hearing Committee and the Competent Authority of the Central Government, cannot be said to be irrelevant, unjust or for extraneous consideration. 17. As stated earlier, the college had failed to produce supportive documents or evidence about 6 (six) minor operations on the day of assessment. No doubt, the OC accepted the explanation of the college by holding that there was no Minimum Standard Requirement (for short ‘MSR’) in that behalf. The finding in the assessment report was that there was only one minor operation on the day of assessment whereas the college claimed to have conducted 6 (six) operations. Nothing prevented the college from producing documents or evidence in support of that claim before the Hearing Committee. It was open to the petitioners to invite the attention of the Hearing Committee to such documents, if already placed on record during the earlier hearing. That was obviously not done. Else, the Hearing Committee in its conclusion submitted to the 25 Ministry may have referred to it. The Hearing Committee has noted that even the relevant list/documents in relation to paramedical non-teaching staff was not produced before it. There is no reason to doubt the correctness of this factual position noted by the Hearing Committee. In any case, since the deficiencies in respect of faculty (16.79%) and residents (21.73%) remains unexplained and being significant, the same cannot be overlooked. This appears to be the view taken by the Hearing Committee and the Competent Authority of the Central Government. 18. Be that as it may, the opinion of the Hearing Committee, which is the basis for passing the impugned decision, is founded on the performance of the college on the day of inspection dated 18th – 19th November, 2016. The question is: whether absence of faculty members and residents on the given day, assuming it to be substantial in number, per se, could be the basis for determining the efficiency and performance of the college for the rest of the academic session while considering the proposal for grant of permission? There is nothing in the opinion of the Hearing Committee or the decision of the Competent Authority that 26 requisite number of faculty members and residents was not employed in the petitioner college or that the claim of the petitioner college in that behalf was bogus. The noting is about the absence of such large number of faculty and residents on the day of inspection and during the duty hours. Assuming that the college could not secure the presence of those persons at the time of inspection, it does not follow that those faculty members and residents were not on the pay roll and in the employment of the petitioner college. This aspect certainly requires proper verification and consideration by the concerned authority. 19. A priori, we may adopt the course as in the case of <cite>World College of Medical Sciences & Research Vs. Union of India6</cite>, by directing the respondents to allow the students already admitted in the petitioner college on the basis of conditional LOP for the academic session 2016-17, to continue their studies. The MCI shall send its Inspection Team within a period of three months to submit an assessment report regarding the overall performance and efficiency of the petitioner college and deficiencies, if any, and give time to the petitioner college to remove those 6 Writ Petition (C) No. 514 of 2017, decided on 05.09.2017. 27 deficiencies within the time specified in that regard. The petitioner medical college shall then report its compliance and communicate the removal of deficiencies to MCI, whereafter it will be open to the MCI to verify the position and then submit its recommendation to the Central Government. The Ministry shall take a final decision within one month of the receipt of the recommendation from the MCI. Until such decision is taken and communicated to the petitioners, the Bank Guarantee offered by the petitioners in the sum of Rs. Two Crore shall not be encashed by the MCI but the petitioners shall keep the same alive. In the event the final decision of the Competent Authority of the Central Government is adverse to the petitioners, it will be open to them to take recourse to such remedies as may be available in law. 20. Be it noted that the purpose of the stated inspection would be to consider the confirmation of LOP in favour of petitioner college for the academic session 2016-2017. We further direct the respondents to treat the renewal application submitted by the petitioner college for the academic session 2017-18 as having been made for the 28 academic session 2018-19 and process the same in accordance with law with promptitude. 21. Writ petition is disposed of in the aforementioned terms. No order as to costs.

The appellant and six other persons stood prosecuted for offences under Ss. 147, 148, 302 read with 149 and 307/149. They were acquitted by the Additional District Judge, Narisinghgarh, Distt. Rajgarh (Byara), W.P. State. On appeal, the High Court confirmed the acquittal of five persons but reversed the Judgment of the trial Judge with reference to the appellant and another by name Ram Singh. The appellant was convicted for offences under Ss. 302 and 324 IPC and sentenced to imprisonment for life u/s 302 and imprisonment for four months and a fine of Rs. 1000/- u/s 324. We are not concerned with the other accused as he has not come to this Court. 2.The case of the prosecution is shortly as follows : There was prior enmity between the accused persons on the one side and Gorelal and others on the other. The accused persons formed an unlawful assembly and on 29.12.86 at about 2 P.M. committed the murder of Gorelal in the jungle of Padiliya Khadi. Ram Singh and the appellant shot the deceased with a gun. They caused gun shot injuries to Nankram, Deochand, Beni Singh and Ramesh in the attempt to murder them. Nanak Ram became unconscious. Sewa Ram (PW1) was working in is field when he saw a bullock cart coming from forest side. On hearing sounds of screaming and wailing, he went to the cart and found the dead body of Gorelal. He was informed by Hiralal s/o Ramratan that the appellant, his brother Bhanwaria, Amritlal, Daryhao Singh, Kailash, Ram Singh and Pappu Killed Gorelal in Chhapra and that Ram Singh and the appellant fired guns at Gorelal. He was also informed that the others sustained bullet-injuries. Thereafter Sevaram went to the police Station at Kotra and reported the matter at 5.50 P.M., the same day. The report was recorded. J.S. Tomar (PM9), SHO registered offences u/ss 147, 148, 302, 307 read with 149 vide Crime No. 148/86. 3.After investigation the accused persons were prosecuted. They denied the charges and pleaded false implication. They also pleaded that the complainant party caused damage to their tractor. After trial, the trial Judge acquitted all the accused. On appeal by the State, the High Court reversed the judgment as regards the appellant and Ram Singh and convicted them while confirming the acquittal of the rest of the accused. 4.The appellant’s counsel made the following submissions:- The FlR was not lodged on the same day but it was done only on the next day. The appellant has proved alibi and he was not at the place of occurrence. No doctor has been examined to prove the alleged injuries of eye witnesses. Nor have they produced any medical certificate. The evidence of the prosecution witnesses is full of discrepancies. The driver of the tractor recovered by the prosecution was not examined by it, and he has been examined by the defence. His evidence corroborated by the damage on the tractor proves conclusively the defence version. The Judgment of the High Court is perfunctory and unsustainable. 5.Learned counsel for the State submitted that all the witnesses of the prosecution are consistent in stating that the appellant fired the gun after getting it from Ram Singh. According to him the appellant has failed to plead or prove alibi and DW1 was not the driver of the tractor in question. He argued that no suggestion of alibi was put to the prosection witnesses by the defence counsel. According to him the judgment of the high Court does not warrant any interference. 6.We heard counsel on both sides at length. We have perused the entire evidence on record. There are five eye-witnesses, namely, PW2, PW12, PW13, PW14 and PW15. All of them except PW2 received gun-shot injuries. Their evidence is consistent and excepting minor discrepancies which are natural due to frailty of human memory, nothing has been pointed out for discrediting their evidence. All the five witnesses have categorically spoken to the presence of the appellant on the spot and his firing the gun after taking it from Ram Singh. The argument that no doctor has been examined to prove the injuries of the witnesses is without any substance. Nothing has been elicited in the cross-examination to enable the court to discard their version of having suffered injuries. On the other hand, suggestions have been made in the cross examination as if there was a fight between the two groups at the spot. 7.Though learned counsel in the beginning of the arguments attempted to make a point about the lodging of the FIR on the next day, he realised the futility thereof when it was pointed out that PW1, the Chowkidar of the village rushed to the Police station and gave the information to the S.O. around 5 P.M. According to the witness, the S.O. before lodging the report went to the spot to make enquiry and returned much later to lodge the report. The witness cannot be disbelieved on that ground and the High Court has adverted to this aspect of the matter. 8.The main plank of the argument of the appellant’s counsel was ’alibi’. According to him the evidence of the DWs and the records produced by DW3 prove that the appellant attended the Court of Naib Tehsildar on that day situated about 60 to 70 kms away and the appellant could not have been present at the place of occurrence. There are several circumstances which disprove the case of alibi. There was no consistency in the suggestions made to prosecution witnesses when they were cross-examined. A suggestion was made to PW2 that he himself and the members of his group attacked the appellant and his driver. The suggestion could be only on the basis that the appellant was present at the spot. No suggestion was made to PW2 that the appellant was not there at the time of occurrence. There was no suggestion to PW13 that the appellant was not present there. When the appellant was questioned under s.313, he did not say that he was not present at the spot. All his answers were mere denials of the evidence put to him. 9.Strong reliance is placed on the evidence of DW1 who claims to be the driver of the tractor which was found on the scene of occurrence. But the number of the tractor given by him is different from the number of the tractor seized. His entire evidence is wholly unreliable. The High Court has rightly characterised him as got-up witness and his evidence is rejected. 10.The evidence of DW4 does not inspire any confidence. He claims to have been present in the court of Naib Tehsildar along with the appellant. But Ex. D-7 disproves his statement. In that case he was non-applicant and the order discloses that he was not present in Court and he should be informed of the order. DW3 who produced the records from the court of Naib Teshildar proves equally unreliable. His version that cases in the Court of the Naib Tehsildar started only at 2 P.M. is too big a pill to be swallowed. He could not state clearly the time at which the statements containing the signature of the appellant were recorded. It is quite obvious that he is a partisan witness and no reliance can be placed on his evidence. 11.In the facts and circumstances of the case, there is no difficulty in rejecting the version of the appellant that he was not present on the scene of occurrence at the relevant time. The other matters relied on by the learned counsel for the appellant in support of his contention that the evidence of the prosecution witnesses is unacceptable are not of much significance or sufficient importance to negative the reliability of the prosecution witnesses. 12.In the result we hold that the High Court was justified in reversing the judgment of acquittal passed by the trial Court and convicing the appellant under section 302 as well as section 324 IPC. The sentences awarded by the High Court are quite appropriate and do not find any warrant to interfere with the same. The appeal fails and is dismissed.

1. 2. The present appeal has been preferred by a 5 years’ old victim of road accident which occurred on 21.9.2010, challenging the order of the High Court dated 7.9.2020 awarding a compensation of Rs.13,46,805/-, as against Rs. 18,24,000/- awarded by the learned Motor Accident Claims Tribunal1. The grievance is with respect to the inadequate amount of compensation on account of the injuries suffered by the appellant. The appellant is a paraplegic patient. The appellant has examined Dr. Amithish Narayana as PW-2 and Dr. S. Adanthya as PW-3. Dr. Adanthya 1 For short, the ‘Tribunal’ 1 is a medical specialist from National Institute of Mental Health & Neurosciences, Bangalore. The discharge summary issued by the hospital is Exh. P/10. As per the discharge certificate, the appellant is not able to move both his legs and had complete sensory loss in the legs, urinary incontinence, bowel constipation and bed sore. The appellant was aged about 5 years as on the date of the accident, hence has lost his childhood and is dependent on others for his routine work. PW-2 Dr. Amithish Narayana has issued disability certificate Exh.P/12. He is the Head of the Department at the Kasturba Medical College Hospital, Mangalore. The said certificate reads as thus: “KMC Hospital To Whomsoever It May Concern 30.04.2013 Tuesday This is to certify that Master Ayush V/8yrs S/o Vedava (Resident of BC Road) is a known case of Traumatic Paraplegia following T 10-11 spinal cord lesion due to RTA. He is not able to walk due to poor motor and sensory recovery in LL muscles. He shows significant sinking astasia attitude and collapses on standing. As per the Disability certificate, he has 100% permanent physical impairment and will not be able to walk. Since following therapy, partial recovery has taken place in both motor and sensory aspects up to pelvic girdle level. Further recovery is impossible. Therefore he is been advised to use Advanced Reciprocating Gait Orthosis (ARGO) with bilateral elbow crutches. After the use of Advanced Reciprocating Gait Orthosis (ARGO) with bilateral elbow crutches he can perform independent ambulation. This is a great achievement for his future life as this device gives him controlled mobility capacity. 2 With best wishes and blessings for his good progress. Sd/- Dr. Amitesh Narayan Professor & HOD Department of Physiotherapy K.M.C. Hospital Ambedkar Circle, Mangalore-575001 Email: [email protected] Mob: 9448039380” 3. The High Court and the Tribunal assessed the compensation under different heads as produced below: Sl. No. 1 2 3 4 5 6 7 8 9. 10. Particulars Disability Pain and suffering Loss of amenities Medical expenses Future medical expenses i.e. towards purchase of device Attendant charges Conveyance charges Food and nourishment Towards Loss of marriage prospectus Towards loss of childhood Total High Court Amount Rs.2,25,000/- Rs.1,00,000/- Rs.1,05,000/- Rs.1,61,805/- Rs.5,00,000/- Rs.70,000/- Rs.70,000/- Rs.70,000/- N.A Tribunal Amount Rs. 2,26,000/- Rs. 1,20,000/- Rs. 2,00,000/- Rs. 5,74,000/- Rs. 5,00,000/- Rs. 15,000/- Rs. 20,000/- Rs. 20,000/- Rs. 1,00,000/- N.A Rs.13,46,805/- Rs. 50,000/- Rs. 18,24,000/- 4. Learned counsel for the appellant argued that the medical expenses itself were to the tune of Rs.5,73,700/- as per Ex. P11, whereas the High Court has only awarded a sum of Rs.1,61,805/-. The High Court had maintained awarding a sum of Rs 5,00,000/- for future medical expenses, i.e., towards purchase of device to be used by the appellant, but as per the statement of PW2- Dr. Amitesh Narayana, the device 3 bears weight only up to 25 kilograms and has to be replaced every 5 years. The conveyance charges were awarded by the Tribunal as Rs.20,000/- which was enhanced to Rs.70,000/- by the High Court. However, it was contended that the enhancement is still less than the taxi expenses incurred by the appellant. The Tribunal rejected the claim of taxi expenses produced as EX P-13 amounting to Rs. 1,51,500/- on the ground that the taxi driver had not been produced and also that why the appellant was taken by a taxi when other modes of transport were available. Still further, the appellant has been given Rs.70,000/- as attendant charges and Rs.2,25,000/- towards disability which are wholly inadequate. PW-1- Krishna Sapalya is the father of the appellant who was working as Secretary, Gram Panchayat. The learned Tribunal has observed that the father has not placed any material to show his occupation or income. We do not agree with such finding of the Tribunal as once he has stated that he is a Secretary of Gram Panchayat, he has disclosed his occupation. As a Secretary of Gram Panchayat, he is a government servant. It was also argued that in a judgment reported as <cite>Kajal v. Jagdish Chand and Others2</cite>, the injured was a 12 years old girl who had suffered an injury to the extent that her IQ got less than 20% as compared to a child of her age and the medical board had assessed her social age to be only of a 9-months’ old child. This Court had 5. 6. 2 (2020) 4 SCC 413 4 recognized that Schedule II of the Act could be used as a guide for the multiplier to be applied in each case. This Court in the aforesaid case held as under: “6. It is impossible to equate human suffering and personal deprivation with money. However, this is what the Act enjoins upon the courts to do. The court has to make a judicious attempt to award damages, so as to compensate the claimant for the loss suffered by the victim. On the one hand, the compensation should not be assessed very conservatively, but on the other hand, the compensation should also not be assessed in so liberal a fashion so as to make it a bounty to the claimant. The court while assessing the compensation should have regard to the degree of deprivation and the loss caused by such deprivation. Such compensation is what is termed as just compensation. The compensation or damages assessed for personal injuries should be substantial to compensate the injured for the deprivation suffered by the injured throughout his/her life. They should not be just token damages. xxx xxx xxx 12. The assessment of damages in personal injury cases raises great difficulties. It is not easy to convert the physical and mental loss into monetary terms. There has to be a measure of calculated guesswork and conjecture. An assessment, as best as can, in the circumstances, should be made. xxx xxx xxx 27. One factor which must be kept in mind while assessing the compensation in a case like the present one is that the claim can be awarded only once. The claimant cannot come back to court for enhancement of award at a later stage praying that something extra has been spent. Therefore, the courts or the Tribunals assessing the compensation in a case of 100% disability, especially where there is mental disability also, should take a liberal view of the matter when awarding the compensation. While awarding this amount, we are not only taking the physical disability but also the mental disability and various other factors. This child will remain bedridden for life. 5 Her mental age will be that of a nine-month-old child. Effectively, while her body grows, she will remain a small baby. We are dealing with a girl who will physically become a woman but will mentally remain a 9-month-old child. This girl will miss out playing with her friends. She cannot communicate; she cannot enjoy the pleasures of life; she cannot even be amused by watching cartoons or films; she will miss out the fun of childhood, the excitement of youth; the pleasures of a marital life; she cannot have children who she can love, let alone grandchildren. She will have no pleasure. Her's is a vegetable existence. Therefore, we feel in the peculiar facts and circumstances of the case even after taking a very conservative view of the matter an amount payable for the pain and suffering of this child should be at least Rs 15,00,000.” 7. The High Court had assessed, in the aforesaid case, the notional income of the victim as Rs.15,000/- p.a. which was not found to be justified by this Court. It was observed that the girl would be entitled to minimum wages payable to a skilled workman. The appellant was from the State of Haryana. The minimum wages in that State on the date of accident were Rs.4846/- per month. In the present appeal, the minimum wages for 2010-11 in the State of Karnataka for employments not covered under any of the scheduled employments can be ascertained from the following extract of notification for minimum wages published in the Gazette on 19.02.2007: “24.Employment not covered in any of the Scheduled Employments Notification No. KAE 79 LMW 2005 dated 17.03.2006 Published in Gazette dated 19.02.2007 Cost of Living Allowance to be paid over and above 2703 points Cost of Living Index: 3944-2703=1241 points Minimum wages and VDA from 01-04-2010 to 31-03-2011 6 S C H E D U L E for different zones Class of Employment 2 Minimum rates of wages payable Sl. No. 1 1 2 3 4 VDA: All Categories of employees: 3 paise per point per day over and above 2703 points.” Highly Skilled Skilled Semi-Skilled Unskilled Basic 3 2691.80 2591.80 2041.80 1891.80 Total 5 3808.70 3708.70 3158.70 3008.70 VDA 4 1116.90 1116.90 1116.90 1116.90 8. 9. 10. Hence, as per the above extract, the minimum wages payable to a skilled workman in 2010-11 is to the tune of Rs. 3708.70. In this view, the minimum wages as on the date of accident is rounded off to Rs.3700/-. The compensation, therefore, is to be assessed on the basis of the said minimum wages on the assumption that the appellant would have been able to earn after attaining majority. In addition to the skilled minimum wages, the appellant would be also entitled to 40% for future prospects in view of the judgment of this Court in <cite>National Insurance Company Limited v. Pranay Sethi & Ors3</cite>. Thus, the compensation works out to be Rs.3700/- plus 40%, which amounts to Rs.5180/- per month. The multiplier of 18 would be applicable in view of the age of the appellant. The loss of future earnings due to the Permanent Disability for life thus works out to be Rs.11,18,880/-, i.e., (3700+1480=5180) x 12 x 18. 3 (2017) 16 SCC 680 7 11. 12. As per the medical certificate produced by the appellant, with Advanced Reciprocating Gait Orthosis (ARGO) with bilateral elbow crutches, the appellant can perform independent ambulation. Therefore, the condition of the appellant is not entirely comparable to <cite>Kajal</cite> who was confined to bed with mental age of 9 months’ old child. The appellant herein is not able to move his both legs and had complete sensory loss in the legs, urinary incontinence and bowel constipation and bed sore. The determination of damages in personal injury cases is not easy. The mental and physical loss cannot be computed in terms of money but there is no other way to compensate the victim except by payment of just compensation. Therefore, we find that in view of the physical condition, the appellant is entitled to one attendant for the rest of his life though he may be able to walk with the help of assistant device. The device also requires to be replaced every 5 years. Therefore, it is reasonable to award cost of 2 devices i.e., Rs.10 lakhs. The appellant has not only lost his childhood but also adult life. Therefore, loss of marriage prospects would also be required to be awarded. The learned Tribunal has rejected the claim of taxi expenses for the reason that the taxi driver has not been produced. It is impossible to produce the numerous taxi drivers. Still further, the Tribunal should have realized the condition of the child who had complete sensory loss in the legs. Therefore, if the parents of the child have taken him in a taxi, probably 8 that was the only option available to them. Accordingly, we award a sum of Rs.2 lakhs as conveyance charges. 13. No compensation is warranted to be payable under the heading “food and nourishment or towards loss of childhood” as it stands subsumed in the compensation assessed under the other different heads. In view of the judgment in <cite>Kajal</cite> and other principles of determination of compensation, the amount payable would be as under: A B C D E F G expenses i.e. Rs.5,74,000/- Rs.10,00,000/- Amount Rs.11,18,880/- Head Loss of future earnings due to the Permanent Disability for life (3700 + 1480=5180) x 12 x 18 Medical expenses Future medical towards purchase of 2 devices Pain, suffering and Loss of amenities Rs.10,00,000/- Rs.3,00,000/- Loss of Marriage prospects One Attendant charges Rs.8,00,000/- (3700x12x18)=7,99,200/- rounded off Conveyance charges Total Rounded off Rs.2,00,000/- Rs.49,92,880/- Rs.49,93,000/- 14. Hence, the compensation comes out to be Rs. 49,93,000/- along with interest already awarded by the Tribunal and affirmed by the High Court i.e. 7.5% p.a. from the date of filing of the claim application till realization. 9 15. 16. Since the appellant is a minor, in view of the judgment of this Court in General Manager, Kerala State Road Transport Corporation, <cite>Trivandrum v. Susamma Thomas and Others4</cite>, the amount of Rs.10,00,000/- would be disbursed to the father of the appellant as his guardian. If however, an amount more than Rs.10,00,000/- has already been disbursed, the said amount shall not be adjusted. The rest of the amount would be invested in one or more Fixed Deposits Receipts so as to attract the maximum rate of interest. The interest amount shall be payable to the guardian of the appellant every month. It shall be open to the guardian, during the minority of the appellant, to seek orders for withdrawal of the amount on the basis of medical opinion, if any major medical expenses are required to be incurred. The appeals thus stand allowed accordingly with costs throughout.

1. Feeling   aggrieved   and   dissatisfied   with   the   impugned judgment and order dated 28.01.2020, passed by the High Court of  Judicature at  Allahabad  in First Appeal Defective  No.308 of 2015, by which the High Court has rejected the said appeal after 1 a period of approximately 16 years (as per the appellant, there was a delay of 26 years) by which the High Court has enhanced the   compensation   payable   to   the   land   owners   to   Rs.297/­  per sq.yard, NOIDA has preferred the present appeal.    2. The facts leading to the present appeal in a nutshell, are as under: 2.1 That   the   land   in   question   situated   in   Village   Gheja Tilapatabad, Tehsil and Pargana Dadri, District Ghaziabad (now District   Gautam   Budh   Nagar)   was   acquired   for   the   planned development by the NOIDA, vide Notification issued under Section 4,   dated   22.11.1982.     A   declaration   under   the   provisions   of Section   6   of   the   Land   Acquisition   Act,   1894   was   issued   on 23.11.1982.  The possession of the acquired land was taken over by   the   State   on   22.02.1983.     The   Land   Acquisition Officer/Collector   declared   the   Award   dated   05.09.1983   and awarded/determined the compensation at Rs.30,000/­ per bigha, relying upon the sale deed dated 02.11.1982 of certain parcels of land in the village itself.  The father of the contesting respondents 2 accepted   the   compensation.     At   the   instance   of   the   original owners – father of the contesting respondents, a Reference under Section 18 of the Land Acquisition Act, 1894 raising objections against   the   Award   was   made.     The   original   claimants   claimed compensation @ Rs.60,000/­ per bigha.  On contest, by a detailed judgment   and   order   dated   04.05.1989,   the   Reference   Court dismissed the said Reference along with other references.  Review applications were filed which came to be dismissed in the year 1998.  That after a period of 16 years from the date of rejection of the review applications in the year 2014/2015, the respondents filed   the   present   first   appeal   before   the   High   Court   and   relied upon   the   judgment   in   some   other   first   appeals   by   which   the compensation   was   enhanced   to   Rs.297/­   per   sq.yard.     By   the impugned judgment and order, the High Court has condoned the delay of 16 years, however it has denied the interest during the period of delay, and has enhanced the amount of compensation to Rs.297/­ per yard.  Hence, the present appeal at the instance of the NOIDA. 3 3. Learned   Counsel   appearing   on   behalf   of   the   NOIDA   has vehemently submitted that the High Court has materially erred in entertaining the appeal after a period of 16 years from the date of dismissal of the review application and after a period of 26 years from the date of the decision by the Reference Court. 3.1 It is submitted that even otherwise, on merits also in view of the subsequent decision of this Court in the case of  <cite>Asha Ram (Dead)   through   LRs   and   Others   vs.   U.P.   Awas   Avam   Vikas Parishad and Another, (2022) 2 SCC 567</cite>  with respect to the land   acquisition   of   1982,  this   Hon’ble   Court   has   reduced   the amount of compensation to Rs.120/­ per sq.yard, the claimants shall not be entitled to compensation at the rate of Rs.297/­ per sq.yard, as awarded by the High Court. 3.2 It is submitted that as such, in the subsequent decision in the case of U.P. <cite>Awas Avam Vikas Parishad (supra)</cite>, this Court did   consider   its   earlier   decision   in   the   case   of  <cite>Narendra   and Others vs. State of Uttar Pradesh and Others, (2017) 9 SCC 4 426</cite>, by which this Court for the acquisition with respect to the nearby   villages   of   the   year   1988,   has   allowed  compensation  @ Rs.297/­ per sq.yard.  However, it is submitted that considering the   development   which   took   place   between   the   year   1982­ 1986/1988   this   Court   in   the   case   of  <cite>U.P.   Awas   Avam   Vikas Parishad   (supra)</cite>,  did   not   accept   the   case   on   behalf   of   the claimants for awarding Rs.297/­ per sq.yard and determined the compensation   for   the   lands   acquired   in   the   year   1982,   at Rs.120/­ per sq.yard. 4. While   opposing   the   present   appeal,   learned   counsel appearing   on   behalf   of   the   original   claimants   has   vehemently submitted that in the facts and circumstances of the case, the High Court has not committed any error in condoning the delay of 16/26 years by observing that the claimants are entitled to just compensation. 4.1 It is submitted that considering the case of the other land owners decided vide judgment and order passed in the year 2014 with   respect   to   similar   acquisition   with   respect   to   the   nearby 5 villages,   the   amount   of   compensation   had   been   enhanced   to Rs.297/­ per sq.yard.   Following the same, in the present case the amount of compensation has been awarded @ Rs.297/­ per sq.yard, which cannot be said to be unreasonable and the High Court has not committed any error. 4.2 Learned   counsel   appearing   on   behalf   of   the   original claimants has heavily relied upon the following decisions of the High Court, confirmed by this Court by which the compensation has been determined at Rs.297/­ per sq.yard. INDEX PARTICULARS LIST OF JUDGMENTS OF LAND ACQUISITION IN MAKANPUR VILLAGE Sl. No. Judgment of the Page  Nos.  Court Village Date of Notifications & Compensatio n (per sq. yd.) 12.09.1986/ 28.02.1987 [Rs. 297/­] 1. Makanpur, (Vaishali) Distt. Ghaziabad, Tehsil Dadri 6 F.A.   No.   910/2000 in re: <cite>GDA v. Kashi Ram.  [DoJ: 13.11.2014]</cite>. SLP (C) No. 5815 of 2015, <cite>GDA v. Kashi Ram   &   Ors.</cite> 6­26 27­32 2. Makanpur, 15.03.1988 (Sector   62, Noida)   Distt. Gautam Budh   Nagar, Tehsil Dadri [Rs. 297/­] dismissed 05.05.2015   on 33­34 Review   Petition   (C) No.   2632   of   2015 dismissed on 06.10.2015   Curative   Petition   (C) No.   94   of   2016   was dismissed on 15.03.2016     Judgment dt. 15.04.2015   of   the High   Court   in  F.A. No.   737   in   re: <cite>NOIDA   v.   Surendra Singh</cite>,  awarding compensation   @   Rs. 135/­ for Makanpur, was set­aside by this Court   vide   judgment 16.02.2016, dt. rendered   in   <cite>Civil Appeal   No.   1506­ 1517   of   2016   in   re: Pradeep   Kumar   v. State   of   U.P.</cite>, reported as (2016) 6 SCC   308  and   the case   was   remanded for consideration afresh.      35­37 38­95 96­98 99­124 Pursuant to remand, the   High   Court dismissed  F.A.   No. 737 in re: <cite>NOIDA v. Surendra Singh</cite>   7 along with other First Appeals of Noida and allowed   the   First Appeals   filed   by   the  (F.A.   No. farmers 522   of   2009 <cite>Pradeep   Kumar   vs. State   of   UP</cite>,   being the   lead   case)  and awarded compensation   of   Rs. 297   per   sq.   yd.   vide final   judgment   dt. 21.04.2016.     This has attained finality.  In   [Note: the present   bunch   of cases,   listed   before this   Court,   the compensation   has been awarded @ Rs. 297/­ sq. yard based on   this   judgment dated   21.04.2016 only as they pertain to   same notification and the village same (Makanpur)   and have   arisen   out   of the same Reference Court order.] the     3. Makanpur, (Vaishali) Distt. Ghaziabad, Tehsil Dadri 12.09.1986/ 24.02.1988 [Rs. 297/­] This   Court   in   <cite>Civil Appeal   No.   10429­ 10430   of   2017, Narendra   vs.   State of   UP</cite>,   reported   as 125­ 135 8 4. Makanpur,   (Indirapuram ) Distt. Ghaziabad, Tehsil Dadri  16.08.1988 [Rs. 297/­] 136­ 137 (2017)   9   SCC   426 has awarded compensation   @   Rs. 297/­   This   Court   in  <cite>Civil Appeal No. 16960 of 2017,   Jaiprakash (D)   V   State   of   U.P</cite>. vide   judgment   dated 24.11.2017,   reported as  (2020)   11   SCC 770,  increased compensation   to   Rs. 297/­   (Followed  In re: Narendra) 5. Makanpur, 16.08.1988   (Indirapuram ) Distt. Ghaziabad, Tehsil Dadri [Rs. 297/­] This Hon’ble Court in <cite>Civil   Appeal   No. 16961 of 2017, Om Prakash vs. State of UP</cite>  vide   the   same judgment dated 24.10.2017   in  <cite>Jai (supra) Prakash  </cite> increased the compensation   to   Rs. 297/­     6. Makanpur, (Vaishali) Distt. Ghaziabad, Tehsil Dadri 12.09.1986/ 28.02.1987 [Rs. 297/­] This   case   had   also arisen   out   of   the above­mentioned <cite>Ram   Kashi judgment   (supra)</cite>. After the judgment in Kashi   an application   bearing CMAN no. 194412 of   Ram, 9 2016 was filed in one of   the   First   Appeals bearing  FA   No.   484 of   2019,   <cite>Ghaziabad Development Authority vs. Trilok Chand & Ors.</cite>, which was   also   decided along with the bunch   Ram of (supra)  for   33% deduction as development   charges from the compensation determined   at   the rate of Rs. 297/­ sq. yard,   but   the   same was rejected.   Kashi     SLP   bearing  SLP  (C) No.   12547/2017, <cite>Ghaziabad Development Authority vs. Trilok Chand   &   Ors</cite>  was filed against the said dismissal,   wherein while   issuing   notice, vide   order   dated 28.04.2017,   it   was especially   recorded that   the   GDA   was aggrieved by the non­ deduction   of   33%  as development charges. However,   the   said SLP   was   dismissed vide   order   dated 10 138­ 139 140­ 141 7. Makanpur,   (Indirapuram ) Distt. Ghaziabad, Tehsil Dadri 16.08.1988 [Rs. 297/­] 142­ 144 03.08.2017. This   Court   in  <cite>Civil Appeal   No.   9208­ 9211   of   2018, Mangu   Singh   Vs. State   of   UP</cite>,  vide judgment  dated 10.09.2018, increased compensation   to   Rs. 297/­.  Making the above submissions and relying upon the above decisions/orders passed by the High Court as well as this Court, it is prayed that the present appeal be dismissed. 5. We have heard learned counsel appearing on behalf of the respective parties at length. 5.1 So far as the submissions made on behalf of the appellant that the High Court has erred in condoning the delay of 16/26 years in preferring the appeal is concerned, in the peculiar facts and circumstances of the case and considering the fact that even while  enhancing the amount of  compensation and  entertaining the appeal, the High Court has denied the interest for the period of   delay   and   has   exercised   its   discretion   in   favour   of   the 11 claimants, we see no reason to interfere with the order passed by the High Court condoning the delay in preferring the appeal. 5.2 Now   so   far   as   merits   of   the   appeal   and   the   impugned judgment   and   order   passed   by   the   High   Court   enhancing   the amount  of  compensation at  Rs.297/­ per  sq.yard  is  concerned and the reliance placed upon the decisions of the High Court and this Court referred to hereinabove and relied upon on behalf of the claimants is concerned, at the outset it is required to be noted that in the present case, the acquisition is of the year 1982 and in all other relied upon cases the acquisition(s) is/are of the year 1986/88.  In all those cases, where the amount of compensation has been determined @ Rs.297/­ per sq.yard, the acquisition(s) is/are   of   the   years   1986/1988   with   respect   to   the   Village Makanpur and other nearby villages acquired for the development of NOIDA/Ghaziabad.   In the case of  <cite>Narendra & Ors. (supra)</cite>, this   Court   had   enhanced   the   amount   of   compensation   to Rs.297/­ per sq.yard with respect to the land acquired in Village Makanpur and other surrounding villages acquired for the very same   project,   but   with   respect   to   the   acquisition   of   the   years 12 1986/1988.     However,   subsequently   in   the   case   of  <cite>U.P.  Awas Avam Vikas Parishad (supra)</cite> and after considering the decision of this Court in the case of <cite>Narendra & Ors. (supra)</cite> with respect to the village Makanpur and other surrounding villages situated at   Village   Prahladgarh,   Village   Jhandapur,   Village   Sahibabad, Village Arthala with respect to the acquisition of the year 1982, this   Court   has   determined   the   compensation   at   Rs.120/­   per sq.yard.  In the said decision, while refusing to accept the claim of Rs.297/­ per sq.yard as awarded in the case of <cite>Narendra & Ors. (supra)</cite>  which was with respect to the acquisition of 1988, this Court   has   observed   that   the   compensation   determined   on   the basis of the Notification 5 years later, cannot be a yardstick for determining the compensation for the land which is acquired five years   before.     This   Court  has   also  taken  note   of   the  fact  that between   the   year   1982   and   1987/1988,   development   activities had been undertaken.  Applying the law laid down by this Court in the case of  <cite>U.P. Awas Avam Vikas Parishad (supra)</cite>  to the present   case,   the   claimants   shall   not   be   entitled   to   the   same compensation as awarded with respect to the lands acquired after 13 5   years   from   the   date   of   acquisition   in   the   present   case.     As observed hereinabove, in the present case, Section 4 Notification had   been  issued   on  22.11.1982  and   the   relied   upon   decisions with respect to Village Makanpur and  other villages are of  the year 1986/88, which as observed by this Court in the aforesaid decision in the case of <cite>U.P. Awas Avam Vikas Parishad (supra)</cite>, cannot   be   the   basis.     Under   the   above   circumstances,   the impugned   judgment   and   order   passed   by   the   High   Court awarding compensation @ Rs.297/­ per sq.yard is unsustainable and   it   is   held   that   the   original   claimants   shall   be   entitled   to compensation at the rate of Rs.120/­ per sq.yard.     6. In view of the above and for the reason stated above, the present appeal succeeds in part.   The impugned judgment and order passed by the High Court is hereby modified.  It is ordered and   directed   that   the   original   claimants   shall   be   entitled   to compensation at the rate of Rs.120/­ per sq.yard along with all other   statutory   benefits   and   interest   allowable   under   the provisions of Land Acquisition Act, 1894.  However, the claimants shall   not   be   entitled   to   the   statutory   benefits   including   the 14 interest   under   the   Act,   1894   on   the   enhanced   amount   of compensation   for   the   delayed   period   in   preferring   the   appeal before the High Court i.e. from the date of rejection of the review application till the first appeal was filed before the High Court.    Present appeal is accordingly allowed to the aforesaid extent. No costs. 

1.          The present petition has been filed by the petitioner­ wife seeking transfer of M.C. No. 331 of 2021 titled as “Dr. Edmond   Clint   Fernandes   vs.   Mrs.   Delma   Lubna   Coelho” pending before the Family Judge at Mangaluru, Karnataka to the Family Court at Bandra, Mumbai, Maharashtra.   2. Learned counsel for the petitioner submitted that the   parties   met   on   Facebook   in   the   month   of   December, 2019 and they got married on 05.12.2020 as per Christian rites   and   customs   at   Our   Lady   of   Miracles   Church, Mangaluru.   Transfer Petition (C) No.1475 of 2021 3. It is pleaded that after the marriage, the petitioner was living with  the  respondent  at her matrimonial home at Mangaluru   where   she   was   ill­treated,   insulted   and humiliated by the respondent and his family members.  She was accused for each and everything and offensive language was   used   against   her.     The   respondent,   in  the   pretext   of giving her a break for 10­15 days, booked a one­way ticket for the petitioner and sent her to Mumbai on 15.01.2021. Thereafter,   he   disconnected   all   relations   with   her.     On 05.07.2021,   after   COVID­19   Pandemic   restrictions   were eased,   the   petitioner   came   back   to  Mangaluru.     However, she   was   denied   entry   in   her   matrimonial   home   by   the respondent and his family members.     She was completely broken   down.   She   approached   the   Police   Station   at Pandeshwar, Mangaluru and lodged a complaint. 4. The   Superintendent   of   Police   intervened   and called respondent to the Police Station.       The respondent stated that he has already issued a divorce notice and his petition seeking divorce is in the process of filing.   Despite repeated   requests   made   by   the   petitioner,   the   respondent did not mend his ways. Transfer Petition (C) No.1475 of 2021 5. On   06.08.2021,   she   replied   to   the   legal   notice stating   that   she   is   ready   and   willing   to   come   to   her matrimonial house and wanted to live a happy married life. On 10.08.2021, she received summons of the Court along with copy of the divorce petition filed in the Family Court at Mangaluru.   6. Learned counsel for the petitioner submitted that she is living with her old aged parents at Mumbai.  There is no   one   at   her   home   to   accompany   her   from   Mumbai   to Mangaluru to contest the petition, which is more than 1,000 km   from   Mumbai.     She   does   not   even   know   Kannada language.  Whereas the respondent will not face any problem in case the petition is transferred to Mumbai (Maharashtra). The parties lived together only for a period of about 40 days. It is stated by the petitioner that if given an opportunity, she would try to re­workout the marriage.   The petitioner was forced to take up job with a bank as the respondent refused to support her financially.  In case, she frequently travels to Mangaluru to attend the hearings, she is at the risk of losing her job being fresher.  It will not be possible for her to bear the cost as well. Transfer Petition (C) No.1475 of 2021 7. On   the   other   hand,   learned   counsel   for   the respondent submitted that though the parties had met on social media, one year prior to their marriage, she had even visited to Mangaluru after COVID­19 Pandemic/restrictions were eased and they met frequently.  She was well aware of the family background of the respondent and also the status of his family.   In fact, immediately after the marriage, the behaviour of the petitioner was not the same as was prior to the marriage.  The respondent resides with his aged parents. He is a doctor by profession.   The respondent is also the founder and CEO of a global health organization involved in philanthropic activities.  Initially petitioner was proud of this but later on the attitude changed.  The respondent also paid professional fees for engineering grade to ensure petitioner’s financial independence as desired by her even prior to their marriage.     She   now   misbehaved   with   the   respondent’s parents as she wanted to live a luxurious life.   All positive points prior to the marriage were now negative.   Transfer Petition (C) No.1475 of 2021 8. In fact, the petitioner being a permanent resident of Canada, was habitual of that lifestyle.  The marriage was just to spoil the life of the respondent though initially, it was claimed   that   she   loves   Indian   culture   and   traditions. Though it is alleged that the respondent had shunted out the petitioner from matrimonial home, however, it was her own   decision   to   move   out.   Immediately,   after   reaching Mumbai, she applied for a job in ICICI Bank and sent her resignation from the Organization on 19.02.2021, where she was working with the respondent.  She had joined the job in the Bank in 05.04.2021.   Number of efforts were made by the respondent to re­concile the marriage but with no result and the efforts in the mediation also failed.  9. The   respondent   was   also   kept   in   dark   about location   of   new   flat   worth  ₹2,00,00,000/­   (Rupees   two crores   only)   purchased   by   her   and   her   family.     The respondent came to know about the address when she filed a complaint at the Women’s Police Station, on  06.07.2021. As   a   counterblast   to   the   Divorce   Petition   filed   by   the respondent, the petitioner has filed petition for restitution of conjugal rights.   He further submitted that it is a case of Transfer Petition (C) No.1475 of 2021 irretrievable breakdown of marriage as even during repeated mediations, the parties could not reconcile. This Court can grant divorce under Article 142 of the Constitution of India without consent of the parties.   Reliance has been placed upon judgments of this Court in  <cite>R. Srinivas Kumar  v. R. Shametha   (2019)   9   SCC   409</cite>  and  <cite>Munish   Kakkar  v. Nidhi Kakkar (2020) 14 SCC 657</cite>. 10. Number of other arguments were also raised on merits, however, for the limited purpose of the consideration on the prayer of the petitioner for transfer of the case, the same are not required to be noticed in much detail. 11. At the time of hearing, the petitioner was present in­person whereas the respondent had joined through video conferencing. 12. Heard   learned   counsel   for   the   parties   and   the parties­in­person.   13. The   marriage   had   taken   place   on   05.12.2020. The parties lived together at their matrimonial home only till 15.01.2021.   Transfer Petition (C) No.1475 of 2021 14. From a perusal of order dated 17.12.2021, it is evident   that   there   being   possibility   of   settlement   of   the matrimonial   dispute,   the   matter   was   referred   to   Supreme Court Mediation Centre.  The Order passed by this Court on 04.03.2022 records that the efforts of mediation failed.  The respondent   sought   time   to   file   affidavit   for   satisfying   the Court that there is an irretrievable breakdown of marriage and this Court should exercise its jurisdiction under Article 142 of the Constitution of India to dissolve the marriage.   15. Order passed by this Court on 25.03.2022 records that   another   effort   was   required   to   be   made   through mediation for resolution of dispute between the parties.   It was referred to Maharashtra State Legal Service Authority. The Marriage Counsellor was also required to be associated. 16. The   order   passed   by   this   Court   on   02.09.2022 reads as under :        “It appears that the marriage has not worked from the initial period of time itself.  The parties got married after having met on facebook.          The problem is what the wife demands and what the husband says is capable of paying. Transfer Petition (C) No.1475 of 2021     Let both the parties file affidavits alongwith list of movable/immovable assets.  They should also file their last three years’ Income Tax Returns.   Two   weeks’   time   is   granted   to   file   necessary affidavits. List on 29th September, 2022.        The parties to either remain present in the Court or connect   virtually   for   which   the   connection   will   be granted by the Registry.” 17. From   the   order   dated   13.10.2022,   it   is   evident that the petitioner may be working in Canada as she stated that she wound up her work in Canada and is now living in India.     They   agreed   to   take   assistance   of   a   marriage counsellor.       Justice S.J. Vazifdar, former Chief Justice of Punjab   and   Haryana   High   Court   was   appointed   as   a Mediator.   The report has been received from the Mediator stating   that   despite   spending   about   50   hours   in   different sessions,   the   parties   and   their   family   members   could   not arrive at a settlement and the mediation failed, as per the report dated 08.02.2023.   It is specifically recorded by the Mediator   in   his   report   that   during   four   months,   several meetings   were   held   with   the   parties   and   throughout   the petitioner   was   in   Canada   and   she   attended   the   meetings Transfer Petition (C) No.1475 of 2021 through Video Conferencing.   18. Number   of   Transfer   Petitions   are   filed   in matrimonial cases, primarily by the wives seeking transfer of the matrimonial proceedings initiated by the husband.  This Court normally has been accepting the prayer made while showing leniency towards ladies.  In <cite>Anindita Das v. Srijit Das (2006) 9 SCC 197</cite>, this Court observed that may be this leniency was being misused by women.   Hence, each and every case has to be considered on its own merits.  19. In the facts of this case in hand, the petitioner is a permanent resident of Canada.  She had shifted there in the year   2014   and   was   working   there   on   a   well­paid   job, however, came to India for the matrimonial alliance.  She is presently based at Mumbai, Maharashtra with her parents and stated to be working in ICICI Bank.   There is no child born   out   of   the   wedlock.   The   relation   started   after   the parties   met   on   Facebook.     As   far   as   the   respondent   is concerned,   he   is   a   doctor   by   profession   and   is   living   at Mangaluru, Karnataka.    Divorce Petition has been filed by the husband at Mangaluru where he resides with his aged Transfer Petition (C) No.1475 of 2021 parents.  Thereafter, the wife filed a petition for restitution of conjugal rights at Mumbai, Maharashtra.   20. Considering the status of the parties and the fact that it is a petition filed by the wife seeking transfer of case filed   by   the   husband   from   Mangaluru,   Karnataka   to Mumbai, Maharashtra, in our view no case is made out for transfer   of   the   petition   from   Mangaluru,   Karnataka   to Mumbai, Maharashtra.  The wife is a permanent resident of Canada.     She   must   be   travelling   abroad   regularly.   As   is evident from the observations in the Mediation Report dated 08.02.2023   submitted   by   Justice   S.J.   Vazifdar,   the petitioner was in Canada throughout the mediation process and attended the proceedings online.  There is no child born out of wedlock to be taken care of.  Both the parties are well educated   and   engaged   in   their   own   jobs   and   professions. She can travel to Mangaluru to attend the hearing of the case   and   can   also   seek   exemption   from   appearance whenever   required.     Though,   at   present,   considering   the financial  condition  of  the   parties  on  the   basis   of  material which has come on record, we do not find that any ground is made out for issuing direction to the respondent to pay the Transfer Petition (C) No.1475 of 2021 expenses   to   the   petitioner   for   travelling   to   Mangaluru. However, still in case she feels like seeking reimbursement of expenses, she shall be at liberty to file application before the   court   concerned,   which   may   be   examined   on   its   own merits.  21. We do not find this to be a fit case for exercise of power under Article 142 of the Constitution of India as good sense may prevail on the parties.   They had lived together only for 40 days.   It takes time to settle down in marriage. The judgments relied upon by the learned counsel for the respondent   are   distinguishable   as   in   those   cases proceedings had travelled up to this Court after decision by the Courts below in divorce proceedings, where the parties had   led   evidence   in   old   matrimonial   dispute.     There   was sufficient material on record and the ground on which the marriage  was  dissolved in  exercise  of  power under  Article 142 of the Constitution of India, was irretrievable breakdown of marriage which otherwise is not a ground in the Hindu Marriage Act,1955 for dissolution of marriage.  Transfer Petition (C) No.1475 of 2021 22. As far as appearance of the parties through video conferencing   is   concerned,   sufficient   guidance   has   been given   by   this   Court   in   the   case   of  <cite>Santhini  v.  Vijaya Venketesh (2018) 1 SCC 1</cite>.    23. For the reasons mentioned above, we do not find any merit in the present petition.   The same is accordingly dismissed.       

1. The   appellant   is   before   this   Court   assailing   the order   dated   09.03.2017   passed   by   the   High   Court   of Orissa   at   Cuttack,   in   W.P.(C)   No.23103/2013.   By   the said order the High Court was of the opinion that the disputed questions of fact involved in the petition cannot be  gone into  in the writ jurisdiction.    Accordingly,  the prayer made in the petition was not entertained and the 1 appellant   was   relegated   to   approach   the   appropriate forum   available   for   redressal   of   its   grievance.   The appellant, therefore being aggrieved is before this Court.  2. The respondent No.1­State of Odisha had granted the   lease   of   the   property   in   question   in   favour   of   the respondent No.5­Utkal Ashok Hotel Corporation Limited (for   short   ‘UAHCL’)   for   99   years   under   the   document dated 24.01.1989. UAHCL was, in that view, running an establishment   in   the   name   and   style   ‘Hotel   Nilachal Ashok’   in   the   said   premises   at   Puri.   The   same   being unviable was closed down with the approval of Board of Directors in the year 2004. Thereafter, UAHCL decided to lease out the same for a period of 40 years. Tender was floated in the year 2009. The appellant was one among the tenderers who participated in the process and being the   highest   bidder   was   considered.   Accordingly,   the Letter   of   Intent   (for   short   ‘LOI’)   dated   19.01.2010   was issued in favour of the appellant delineating the terms to be complied pursuant to which the lease agreement was to be signed.  2 3. Among   the   other   conditions   which   were   to   form part of the lease agreement, even  before executing  the lease agreement the requirement was for the appellant to pay a sum of Rs.9.34 crores   to   UAHCL   within   30 days,   of   which   Rs.8.82   crores   was   towards   non­ refundable   amount   which   was   to   be   paid   upfront;   the security   deposit   of   Rs.26   lakhs   and   the   advance minimum guaranteed annual lease premium for the first year of Rs.26 lakhs was also to be paid.  4. On payment of the said amount the lease was to be executed and the other conditions would come into operation.   The   appellant   who   was   unable   to   pay   the amount within the time stipulated, requested the UAHCL that they be permitted to deposit a part of the amount i.e.,   Rs.4.41   crores   on   19.09.2010   and   the   balance amount by 15.04.2010 which was favourably considered by   UAHCL   through   their   communication   dated 12.02.2010. Such indulgence was shown as special case. The appellant accordingly deposited a portion of upfront amount to the tune of Rs.4.41 crores on 18.02.2010, but the   balance   amount   was   not   deposited   within   the 3 extended time stipulated i.e., before 15.04.2010. In that view,   the   lease   agreement   could   not   be   executed. However,   in   view   of   the   request   from   the   appellant, UAHCL through their communication dated 25.11.2010 once   again   acceded   to   the   request   permitting   the appellant to pay the balance amount before 15.12.2010.  5. The appellant thereafter paid (i) the sum of Rs.2 crores   on   28.12.2010,   (ii)   sum   of   Rs.1.41   crores   on 29.12.2010   and   (iii)   the   sum   of   Rs.70   lakhs   on 07.01.2011.   Such  payment,   according   to   the   appellant constitutes the payment which was required to be made as per the LOI. However, the time gap which had ensued had   created   a   position   wherein   the   grievance   of   the employees was to be addressed and they were to be given the benefit of voluntary retirement. Since the LOI dated 19.01.2010 had also provided for regulating the manner in which the employees are to be treated during the lease period   and   had   provided   the   liberty   to   offer   voluntary retirement, the UAHCL required the appellant to bear the liability   towards   the   same.   The   same   did   not   reach   a finality and in the meanwhile the Board of Directors of 4 UAHCL   took   the   decision   to   terminate   the   LOI   dated 19.01.2010 since the appellant had failed to comply with clause 2 thereof, which required the payment of Rs.9.34 crores within 30 days of issuance of LOI.  6. Even   prior   to   communication   of   the   decision   on 10.12.2013, the appellant filed the special writ petition before the High Court on 01.10.2013 wherein a prayer was   sought   to   direct   UAHCL   to   execute   the   lease agreement pursuant to the terms agreed under LOI dated 19.01.2010 and accept the balance amount along with interest for delayed payment.   During the pendency of the   writ   petition   the   prayer   was   amended   and   the appellant   sought   for   quashing   the   letter   dated 10.12.2013   whereby   UAHCL   decided   to   terminate   the LOI. UAHCL had filed their objection statement opposing the writ petition including contending therein with regard to the maintainability of the writ petition in a contractual matter.   The   learned   Division   Bench   of   the   High   Court having   taken   note   of   the   rival   contentions   and   the dispute involved for adjudication, was of the opinion that the disputed questions are best left to be resolved before 5 the appropriate forum. The appellant is assailing the said order. 7. We have heard Mr. Sanjay Bansal, learned counsel appearing   for   the   appellant,   Mr.   Ashok   Kumar   Gupta, learned   senior   counsel   appearing   for   UAHCL   and perused the appeal papers. 8. The   learned   counsel   for   the   appellant   would contend that the action of UAHCL to cancel the LOI and retain the amount paid thereunder is not justified. In an attempt   to   fortify   his   submission,   the   learned   counsel has referred to LOI dated 19.01.2010 with reference to clause 2, to point out that the upfront amount payable within   30   days   though   not   paid   within   the   time stipulated therein, the appellant had sought extension of time to pay which was agreed to by the communication dated 04.02.2010 and extended by the communication dated 25.11.2010. Though the time agreed thereunder is up to15.12.2010, the amount paid by the appellant on 28.12.2010   (Rs.2   crores),   29.12.2010   (Rs.1.41   crores) and 07.11.2011 (Rs.70 lakhs) had been accepted without demur   and   as   such   the   upfront   payment   of   Rs.8.82 6 crores as required had been paid. In that view, the lease agreement was required to be executed. It is contended, though that  was position, UAHCL  instead of  executing the   lease   agreement   had   through   the   communication dated   13.04.2011   raised   the   issue   of   the   appellant having to bear the total liability on account of providing voluntary retirement to the employees which was as per the decision of the Board of UAHCL due to insistence of the State Government, though it was not a condition in the   LOI   nor   could   have   been   included   in   the   lease agreement. It is pointed out that clause 11 of the LOI though provided for regulating the manner in which the employees are to be maintained had indicated that the appellant shall not retrench them but the liberty was for the appellant to consider VRS. As such it could not be imposed   on   the   appellant   is   the   contention.   In   such circumstance, it is contended by the learned counsel that the appellant having made the payment was entitled for the lease agreement to be executed in their favour. Hence the termination being bad, be set aside and the UAHCL 7 be   directed   to   execute   the   lease   agreement   is   his submission.  9. The learned counsel for UAHCL would on the other hand contend that the LOI was issued in favour of the appellant after the tender process and as such the terms of   the   LOI   was   required   to   be   complied.   Despite   the payment of Rs.9.34 crores required to be made within 30 days, the appellant had failed to comply with the same. It is true that as per the request of the appellant the time was extended, but it was only a concession as a special case. Even as per the extension granted the payment was required to be made by 15.12.2010. But, even as per the admitted case of the appellant the payment towards the balance   of   the   upfront   amount   was   made   only   on 28.12.2010,   29.12.2010   and   07.01.2011   which   was subsequent to the date till which extension was provided. That   apart,   since   the   requirement   is   to   pay   Rs.9.34 crores   within   the   time   stipulated,   the   security   deposit and   advance   minimum   guaranteed   annual   lease premium amount was also required to be paid within the time   stipulated   but   had   not   been   paid.   As   such   the 8 appellant cannot contend that they have performed their obligation so as to assail the termination of LOI and seek execution   of   the   lease   agreement.   In   that   view,   while justifying the termination it is also contended that the upfront amount  of  Rs.8.82  crores being  one­time  non­ refundable amount, it is within the powers of UAHCL to retain   the   same.   Alternatively,   it   is   contended   that UAHCL   was   forced   to   incur   idle   expenses   towards maintenance and the benefits payable to the employees without getting returns as the lease had not materialised due to the default committed by the appellant. In this regard,   roughly   an   amount   of   Rs.4.5   crores   has   been incurred by UAHCL which in any event, the appellant is liable   to   reimburse.   In   that   view,   the   learned   counsel seeks that the appeal be dismissed.        10. In the light of the contentions put forth, it is seen that the lease agreement was to be entered into between the parties pursuant to the terms depicted in LOI and on compliance of the initial obligations set out therein. The present   dispute   relates   to   the   initial   payment   that   was required   to   be   made   by   the   appellant   within   the   time 9 frame set out in the LOI and non­adherence to which has resulted   in   termination   of   LOI.   Clause   2   of   the   LOI provides for the same, which reads as hereunder: ­ “2.   You   shall   execute   the   Operating   Lease Agreement within 30 days of the issue of LOI and   pay  an amount of  Rs.9.34  crore  within these 30 days as per following details  i. ii. One­time   non­refundable   upfront payment of Rs.8.82 crore.  Security Deposit (Rs.26.00 lakh) as per article iv.  iii. Advance   Minimum   Guaranteed   Annual Lease   Premium   for   the   first   year (Rs.26.00   lakh)   as   per   annex­ix­ Financial Bid.” 11. A perusal of the same indicates that the appellant was obliged to pay an amount of Rs.9.34 crore within 30   days   from   19.01.2010   and   execute   the   Operating Lease Agreement. Towards the said amount, a sum of Rs. 8.82 crore was payable upfront as an one­time non­ refundable amount. Though the learned counsel for the appellant   sought   to   contend   that   the   Minimum Guaranteed   Annual   Lease   Premium   and   Security deposit of Rs. 26 lakh each are to be paid subsequently 10 when the  lease  is  executed,  in  our   view  it cannot  be considered to be loose ended. Since Clause 2 refers to Rs.9.34   crore   which   is   payable   in   30   days   and   that includes the said amount of Advance Annual Premium and   Security   deposit,   the   entire   amount   was   payable within   30   days.   And   the   Lease   Agreement   was simultaneously executable. It only means that the same should be paid and the formality of execution of Lease Agreement also should be completed in the said 30 days and   the   payment   to   be   made   includes   the   upfront amount of Rs.8.82 crore. 12.  In   that   backdrop   it  is   necessary   to   examine   the manner in which the things have proceeded after issue of LOI. Admittedly the appellant was not ready with the amount   to   make   the   payment   within   the   timeframe contemplated   under   Clause   2   of   LOI.   The   appellant, through their letter dated 04.02.2010 requested UAHCL that they be allowed to pay 50% of the bid money by 19.02.2010   which   in   our   view   will   include   all   the components indicated in Clause 2 of LOI and not just the   upfront   component.   The   rest   of   the   money   was 11 undertaken to be paid by 15.04.2010. UAHCL through their   reply   dated   12.02.2010   allowed   the   same   as   a special   case.   The   appellant   once   again   through   their letter dated 17.11.2010 requested for extension of time for   payment   of   Rs.4.93   crore.   UAHCL  again   extended the time till 15.12.2010. 13. Despite   such   indulgence   shown   by   UAHCL   the appellant   did   not   make   the   balance   payment   before 15.12.2010. Instead, the sum of Rs.4.11 crore was paid subsequent thereto and that too, in instalments of Rs. 2 crores on 28.12.2010; Rs.1.41 crore on 29.12.2010 and Rs.70 lakhs on 07.01.2011. 14. Though the learned counsel for the appellant seeks to   contend   that   UAHCL   having   received   the   said payment cannot at this stage contend that the payment was not made within the time stipulated, we are unable to   accept   such   contention.   UAHCL   is   a   corporation which   has   different   departments   and   as   such   the remittance made being accepted in itself cannot be taken as an act to condone the delay caused by the appellant in complying with the terms of the LOI so as to alter the 12 terms of contract. There is no material on record that subsequent to 15.12.2010, there is any positive act on behalf of UAHCL to either extend the time for payment or for   having   expressly   condoned   the   delay   and   having accepted   the   payment   so   as   to   regularise   the transaction. This is relevant more so in the context that at   an   earlier   point   as   against   the   time   stipulated   for payment   under   the   LOI   specific   correspondence   was exchanged between the parties and the time had been expressly extended prior to the time fixed earlier having expired. In such situation, when admittedly the balance payment had not been made prior to 15.12.2010, unless the   appellant   had   obtained   express   extension   from UAHCL   mere   tendering   the   payment   and   the   same having been accepted cannot be construed as a positive act to alter the contract.  15. No   doubt,   the   appellants   have   relied   on   the communication   dated   13.04.2011   addressed   by   the General   Manager,   UAHCL   indicating   therein   that   the issue of offering VRS to all the employees unwilling to join the new management was a consideration and the 13 VRS   amount   will   have   to   be   paid   by   the   appellant   to UAHCL.   Apart   from   the   reason   assigned   by   the   High Court   to   indicate   that   the   same   cannot   be   treated   in favour of the appellant, the said letter does not indicate that the discussion in that regard was after indicating to the appellant that the delay in payment of the upfront amount has been condoned and accepted. If at all the said aspect relating to VRS of the employees was also mutually   agreed   and,   in   that   context,   if   UAHCL   had proceeded to condone the delay and enter into the lease agreement it is only in such circumstance the exchange of correspondence in that regard would have assumed relevance. If that be the position, when admittedly the appellant   was   required   to   make   the   agreed   payments within   the   timeframe   indicated   under   LOI   dated 09.01.2010 and the appellants themselves being unable to comply with the requirement, though having secured extensions   on   two   occasions   cannot   turn   around   to contend otherwise at this juncture. Despite the extended period   having   come   to   an   end   on   15.12.2010,   the appellant not having made the full payment within the 14 said date cannot at this stage contend to have complied with the terms so as to seek a direction to UAHCL to execute   the   lease   agreement.   In   fact,   the   High   Court having examined the material on record has also arrived at such conclusion. 16. Notwithstanding   such   conclusion   reached   by   the High Court, ultimately it has arrived at the decision that in view of the disputed questions to be resolved between the   parties,   the   same   cannot   be   gone   into   in   writ jurisdiction.   The   learned   counsel   for   the   appellant   in that   view   has   placed   reliance   to   the   case   in  <cite>Unitech Ltd.   and   Others   vs.   Telangana   State   Industrial Infrastructure Corporation (TSICC and Ors.) 2021 (2) SCALE 653</cite>, the decision to which one of us (Mr. Justice M.R.   Shah)   is   a   member   on   the   Bench,   with   specific reference to para 32 thereof, which reads as hereunder: “32.   Much   of   the   ground   which   was   sought   to   be canvassed   in   the   course   of   the   pleadings   is   now subsumed   in   the   submissions   which   have   been urged   before   this   Court   on   behalf   of   the   State   of Telangana   and   TSIIC.   As   we   have   noted   earlier, during   the   course   of   the   hearing,   learned   Senior Counsel   appearing   on   behalf   of   the   State   of Telangana   and   TSIIC   informed   the   Court   that   the entitlement   of   Unitech   to   seek   a   refund   is   not questioned   nor   is   the   availability   of   the   land   for 15 carrying   out   the   project   being   placed   in   issue. Learned   Senior   Counsel   also   did   not   agitate   the ground   that   a   remedy   for   the   recovery   of   moneys arising out a contractual matter cannot be availed of under   Article   226   of   the   Constitution.   However,   to clear   the   ground,   it   is   necessary   to   postulate   that recourse to the jurisdiction under Article 226 of the Constitution   is   not   excluded   altogether   in   a contractual matter. A public law remedy is available for   enforcing   legal   rights   subject   to   well­settled parameters.” 17. Having noted the said decision, a reference to the order passed by the High Court would indicate that the High Court though having referred to the decisions in <cite>Arya   Vyasa   Sabha   v.   Commissioner   of   Hindu Charitable & Religious Institutions & Endowments, AIR 1976 SC 475</cite>,  <cite>DLF Housing Construction Private Ltd.   Vs.   Delhi   Municipal   Corporation  AIR   1976   SC 386</cite>,  <cite>National Textile Corporation Ltd. vs. Haribox Swalram AIR 2004 SCC 1998</cite> , <cite>Dwarka Prasad v. B.D. Agarwal,   AIR   2003   SC   2686</cite>,   and  <cite>Defence   Enclave Residents' Society v. State of U.P. AIR 2004 SC 4877</cite> to note the limitations while considering a writ petition under Article 226 of the Constitution of India has in that view   taken   note   of   the   fact   situation   arising   in   the 16 instant   case.   It   is   on   facts   that   the   High   Court   has arrived at the conclusion that such disputed questions of   fact   cannot   be   resolved   in   the   writ   petition   of   the present nature. Therefore, in the present facts, the High Court   has   not   dismissed   the   writ   petition   on maintainability   but   having   taken   note   of   the   issue involved was of the opinion that the contentions urged would necessitate the requirement of recording evidence and   therefore   relegated   the   parties   to   an   appropriate forum.   To   that   extent,   though   we   take   note   of   the observations made by the High Court, keeping in view the   nature   of   the   considerations   made,   the   prayers which   were   sought   in   the   amended   writ   petition   were required to be conclusively answered by the High Court on the aspect as to whether the decision of UAHCL to terminate   the   LOI   dated   19.01.2010  was  justified   and the   requirement   for   resolution   of   the   dispute   by   an appropriate forum ought to have been left open only to the   incidental   aspect   which   may   require   appropriate evidence to be tendered and adjudication to be made by an appropriate forum.  17 18.  Keeping these aspects in view, having noted that the appellant had failed to adhere to the terms indicated in the   LOI   dated   19.01.2010   and   the   payment   required thereunder   not   being   made   even   within   the   extended period, the Board of Directors of UAHCL were justified in deciding to terminate the LOI through their letter dated 10.12.2013. In fact, the prayer no. 3 seeking calculation of interest on the amount deposited and such amount is being   sought   to   be   adjusted   towards   the   balance payments   would   in   itself   indicate   that   even   to   the knowledge of the appellant, the entire payments had not been   made   even   as   on   the   date   of   the   filing   the   writ petition. In such circumstance, when the LOI has been rightly   terminated,   the   directions   sought   in   the   writ petition   to   execute   the   lease   agreement   pertaining   to ‘Hotel   Nilanchal   Ashok’,   Puri   does   not   arise   and   the prayers in that regard are liable to be rejected.   19. Having   arrived   at   the   above   conclusion,   the   next aspect   which   would   engage   our   attention   is   as   to   the manner in which the amount paid by the appellant is to be   treated.   The   learned   counsel   for   UAHCL   would 18 contend that the LOI provides that the one­time upfront amount to be paid is non­refundable, in that view, it is contended   that   the   said   amount   is   not   liable   to   be refunded. Even otherwise due to the delay caused by the appellant and having obtained the status­quo order from the court by litigating with regard to the subject matter UAHCL have been prevented from otherwise utilising the property   which   has   caused   loss   to   them   and   the   said amount   would   be   adjustable   towards   the   same   is   his contention.  20. On taking note of the contention, a close perusal of the phrase employed in the LOI would indicate the one­ time   payment   made   upfront   is   shown   as   “non­ refundable” and  such payment is  towards execution of the Operating Lease Agreement. If that be the position, the terms of LOI is clear that the said payment is towards the   lease   rentals   and   is   the   upfront   payment   which becomes a part of the lease transaction and therefore not refundable   only   if   the   lease   agreement   comes   into operation and not otherwise. The word employed is not “forfeiture”,   therefore,   the   amount   payable   towards   the 19 advance lease rentals and the other advance payments provided   in   clause   2   of   the   LOI,   cannot   be   forfeited   if there is default in complying with the term and entering into   the   lease   agreement,   going   by   the   stipulations contained in the LOI governing the parties herein. That apart,   as   noted,   the   amount   was   required   to   be   paid, latest   by   the   extended   date   i.e.,   15.10.2010.   The   very termination of the LOI is for the reason that the entire payment was not made even within the timeframe. The cause   for   termination   of   LOI   occurred   on   15.10.2010. Hence   the   amount   paid   on   28.12.2010   (Rs.2   crores), 29.12.2010 (Rs.1.41crores) and 7.01.2011 (Rs. 70 lakhs) being   clearly   made   after   the   said   date   in   any   event cannot be retained by UAHCL as otherwise it will amount to   unjust   enrichment.   Therefore,   it   is   liable   to   be refunded.   Even   with   regard   to   the   amount   of   Rs.4.41 crores which was paid on 07.02.2010, since we have held that the same cannot be forfeited it is an amount which will   be   available   for   accounting.   In   a   normal circumstance, a direction was required to be issued to refund the said amount also. 20 21. However, as noted it is the contention on behalf of UAHCL that due to the conduct of the appellant in not paying the amount within time and completing the lease agreement formalities and thereafter involving UAHCL in litigation   and   taking   benefit   of   the  status   quo  order, UAHCL   was   unable   to   utilise   the   property   but   on   the other hand had to incur expenses. On this aspect, prima facie  it is seen that the lease transaction ought to have been entered into before 19.02.2010. It is on account of the   difficulty   expressed   by   the   appellant,   the   time   for payment of upfront amount was extended ultimately up to   15.12.2010,   in   which   process   itself   more   than   10 months had elapsed. Soon thereafter the appellant had filed   the   writ   petition   before   the   High   Court   and   the matter has been pending before one forum or the other for nearly a decade during which time the property could not be utilised nor expenses could be frozen. Even if that be   so,   it   would   not   be   appropriate   for   this   Court   to hazard a guess with regard to the actual loss that would have been suffered by UAHCL. At the same time, when this  prima facie  aspect  is  noticed  it  would  also not be 21 appropriate for this Court to direct UAHCL to refund the amount to the extent of  Rs.4.41 crore which was paid within   the   timeframe   and   allow   UAHCL   to   thereafter initiate recovery process. On the other hand, it would be in the interest of justice to permit UAHCL to retain the amount   and   grant   liberty   to   the   appellant   to   file   an appropriately constituted civil suit seeking recovery of the said amount. In the said proceedings it would be open for UAHCL to put forth the contention to set off the amount towards the loss suffered by them or to seek for counter claim if any further amount is due. In such proceedings it   would   be   open   for   the   competent   civil   court   to independently consider that aspect of the matter on its own merits for which we have not expressed any opinion on merits relating to that aspect. Even with regard to the claim of interest, if any, by the appellant that aspect is also  kept open to  be  adjudicated  in the  civil suit.  The pendency   of   the   suit   shall   not   be   an   impediment   for UAHCL to deal with the property or to re­tender the same in any manner. 22 22. In   the   light   of   the   above   we   pass   the   following order:­ (i) The order  dated 09.03.2017  passed by High Court of Orissa at Cuttack in W.P. (C) No.23103/2013 stands modified. (ii)  In that view, the prayer of the appellant to   quash   the   letter   dated   10.12.2013 terminating   the   letter   of   LOI   dated 19.01.2010   stands   rejected. Consequently,   the   termination   of   LOI dated   19.01.2010   is   upheld.   However, UAHCL   is   directed   to   refund   the amounts deposited by the appellant on 28.12.2010 (Rs.2 crores), on 29.12.2010 (Rs.1.41   crores)   and   on   07.01.2011 (Rs.70   lakhs),   in   all   amounting   to Rs.4.11   crores   within   four   weeks   from this day.   (iii) The appellant is reserved liberty to file a civil suit for recovery of Rs.4.41 crores 23 paid to UAHCL on 17.02.2010 subject to the   observations   made   above   and   all contentions of the parties in that regard are left open.  (iv) In   view   of   the   above   conclusions   and disposal   of   the   appeal,   the   amount   of Rs.3   crores   deposited   by   the   appellant before this Court, which is kept in fixed deposit   shall   be   refunded   to   the appellant with accrued interest thereon.  (v) The   appeal   is   disposed   of   accordingly with no order as to costs.  (vi) Pending application, if any, shall stand disposed of. 

In this writ petition, the petitioner-Trust and the college have prayed for issue of a writ of certiorari for quashing the order dated 31.05.2017 passed by the respondent No.1 whereunder the petitioners have been debarred from admitting 150 students in the MBBS course in the academic years 2017-18 and 2018-19 and further to restrain the respondent No.2, Medical Council of India (MCI), to encash the bank guarantee of Rs. 2 crores 2 furnished by the petitioner-institution. That apart, the prayer is to quash the order dated 14.08.2017 passed by the respondent No.1 for reiterating the said order. The relief has been sought for issue of writ of mandamus, commanding the respondent No.1 to grant renewal for the academic year 2017-18 keeping in view the recommendations dated 14th May, 2017, submitted by the Oversight Committee constituted in terms of the order of this Court and to direct the respondents to permit the institution to admit 150 students in MBBS Course for the academic year 2017-18. 2. At the very inception, it is necessary to state that though many a document has been filed and prolonged, anxious, forceful and sometimes vehement arguments have been canvassed, yet the controversy, as we perceive, lies in a narrow compass. And to appreciate the same, we are required to set out the chronology of litigation. Its life is not long. 3. The petitioner No.1, a Trust, established under the Indian Trust Act, 1882 decided to establish a new Medical 3 College by the name of Kerala Medical College at Palakkad, Kerala. It submitted an application under Section 10-A of the Indian Medical Council Act, 1956 (for brevity, “the Act”) to the respondent No.1 to establish the Medical College in the name and style of Kerala Medical College and Hospital seeking admission of 150 students in the MBBS Course for the academic year 2014-15. As certain deficiencies were pointed out by the MCI, it was not granted Letter of Permission (LOP) for the year 2014-15. Thereafter, in 2015, an application was filed for grant of LOP for the academic session 2016-17. A team of assessors of the respondent No. 2 conducted assessment of the college in regard to grant of LOP for the academic year 2016-17 and submitted its report. The respondent No.2, on the basis of the reports of the assessors dated 16.12.2015 and 17.12.2015 in its Executive Committee meeting dated 28.12.2015 made recommendation to the respondent No.1 not to grant LOP for the academic year 2016-17. On 18.01.2016, the respondent No.1 afforded an opportunity of hearing to the petitioner as contemplated under Section 10A(4) of the Act and the petitioner gave its explanation as regards the 4 deficiencies pointed out by the respondent No.2 and the respondent No.1 being satisfied referred back the matter to the respondent No. 2 for review. 4. As the factual narration would evince, on 10th February, 2016, a team of assessors of the respondent No. 2 conducted verification assessment for grant of LOP for the academic year 2016-17. In the mean time, the Constitution Bench in <cite>Modern Dental College and Research Center and others v. State of Madhya Pradesh and others 1</cite> constituted the Oversight Committee headed by Justice R.M. Lodha former CJI to oversee the functioning of the MCI. We shall refer the relevant paragraphs of the said judgment at a later stage. On 13th May, 2016, the report of the assessors team was considered by the Executive Committee of the respondent No.2 in its meeting dated 13.05.2016 and on 14.5.2016 the MCI recommended the disapproval of the scheme of the petitioner under Section 10-A of the Act for the academic year 2016-17. However, after Oversight Committee was constituted, the Central Government issued a public notice informing all the Medical 1 (2016) 7 SCC 353 5 Colleges to submit a compliance report concerning their respective colleges who had applied for LOP for 2016-17. As the facts would unfold, the 1st respondent sent the compliance report along with the reply of the MCI to the Oversight Committee for consideration which on 11.08.2016 approved the same for the year 2016-17 imposing certain conditions. 5. At this juncture, it is necessary to state in what circumstances the Oversight Committee was constituted by the Constitution Bench. It referred to the functioning of MCI and keeping in view certain other factors including a report of the Expert Committee directed the Central Government to consider and to take further appropriate action in the matter at the earliest. At the same time, however, in exercise of power under Article 142, the Court constituted the Oversight Committee to oversee the functioning of the MCI and all other matters. In this regard the Court said:- “In view of the above, while we do not find any error in the view taken by the High Court and dismiss these appeals, we direct the constitution 6 of an Oversight Committee consisting of the following members: 1. Justice R.M. Lodha (former Chief Justice of India) 2. Prof. (Dr) Shiv Sareen (Director, Institute of Liver and Biliary Sciences) 3. Shri Vinod Rai (former Comptroller and Auditor General of India) A notification with respect to constitution of the said Committee be issued within two weeks from today. The Committee be given all facilities to function. The remuneration of the Members of the Committee may be fixed in consultation with them. The said Committee will have the authority to oversee all statutory functions under the MCI Act. All policy decisions of MCI will require approval of the Oversight Committee. The Committee will be free to issue appropriate remedial directions. The Committee will function till the Central Government puts in place any other due consideration of the Expert Committee Report. Initially the Committee will function for a period of one year, unless suitable mechanism is brought in place earlier which will substitute the said Committee. We do hope that within the said period the Central Government will come out with an appropriate mechanism.” appropriate mechanism after 6. As mentioned earlier, the Government constituted the Oversight Committee and thereafter the assessment report 7 and the views of the Executive Committee were sent to the Oversight Committee. 7. The Oversight Committee, after some analysis, took the applications for consideration pertaining to establishment of Medical Colleges for the academic year 2016-2017, forwarded by Ministry of Health and Family Welfare (MHFW) on 22nd July, 2016. Dealing with the present college, the Oversight Committee directed as follows:- “Kerala Medical College, Palakkad, Kerala, MBBS (150 seats), LOP for 2016-2-17 u/s 10A. material The Institution had stated that all deficiencies (faculty/resident/clinical and infrastructure) pointed out by MCI have been made up by them. The OC peruse the statement in the compliance report submitted by the college. These statements satisfy the criteria stated in para 3.1 above. Accordingly, the application is approved subject to conditions laid down in aforementioned para 3.2.” 8. Para 3.2 of the said order read as follows:- “3.2 The applicants for new private colleges for UG for 2016-17 whose applications, have been approved by OC, shall submit to MHFW, within 15 days of issue of notification of approval by MHFW u/s 10A(4) of IMC Act, 1956, the following: (i) 8 An affidavit from the Dean/Principal and Chairman of the Trust concerned, affirming fulfillment of all deficiencies and statements made in the respective compliance report submitted to MHFW by 22 June 2016, (ii) A bank guarantee in the amount of Rs. 2 crore in favour of MCI, which will be valid for 1 year or until the first renewal assessment, whichever is later. Such bank guarantee will be the prescribed fee submitted alongwith the application. in addition to 3.2(a) OC may direct inspection to verify the compliance submitted by the college and considered by OC, anytime after 30 September 2016. if the compliances are (b) In default of the conditions (i) and (ii) para 3.2 above and found incomplete in the inspection to be conducted after 30 September 2016, such college will be debarred from fresh intake of students for 2 years commencing 2017-18.” 9. In compliance of the conditional approval granted by the Oversight Committee, the assessment was carried out on 28th and 29th December, 2016, by the team of assessors and the following defects were pointed out:- “1. Deficiency of faculty is 13.84% as detailed in the report. 2. Shortage of Residents is 8.69% as detailed in the report. 3. No Anti Sera are available in Microbiology laboratory. 4. Bed Occupancy is 50% at 10 a.m. on day of assessment as under: 9 Department Beds Available Occupied General Medicine Paediatrics TB & Chest Psychiatry Skin & VD General Surgery Orthopaedics Opthamology ENT O.G. 72 24 08 08 08 90 30 10 10 40 29 20 07 06 07 31 25 02 02 21 TOTAL 300 150 # 1 2 3 4 5 6 7 8 9 10 ICUs: There was only 1 patient in ICCU, 5. Casualty: Separate casualty for O.G. is not available. Crash Cart is not available. 6. O.T.: Preoperative beds are not available. 7. SICU on day of assessment. 8. Only 1 out of 2 Static X-ray machines has AERB approval. 9. Blood Bank: Only 2 units were dispensed on day of assessment. 10. ETO Sterlizer is not available. 11. OPD: Separate Registration counters for OPD/IPD are not available. 12. Audiometry (Soundproof & Air-conditioned) is not available. There was no Audiometer. 13. Other deficiencies as pointed out in the assessment report.” 10. The Executive Committee took into consideration the report of the assessors and letter dated 29th December, 2016 of the Principal, Kerala Medical College, Palakkad regarding promotion of Dr. Munir U.A. from Assistant 10 Professor to Associate Professor in the department of Pediatrics and the clinical material and leave of the faculty and resident doctors during MCI assessment. Regard being had to the deficiencies, the MCI recommended to the Central Government not to grant Letter of Permission. 11. Thereafter, the Union of India passed an order on 31st May, 2017, debarring the petitioner-College to admit the students in the MBBS course in the academic years 2017- 2018 and 2018-2019 and also authorized the MCI to encash the bank guarantee of Rs.2.00 crore. The said order reads thus:- “In continuation to this Ministry’s letter dated 20.08.2016 granting conditional permission for establishment of a medical college 150 seats for the academic year 2016-2017 on the basis of approval communicated by Supreme Court Mandated Oversight Committee on MCI and after granting an opportunity of hearing to the College with reference to the recommendation of the MCI’s NO.MCI-36(41)(e-86)/2016- Med./167376 dated 15.01.2017, I am directed to convey the decision of the Central Government to debar Kerala Medical College, Palakkad from admitting students in next two academic years i.e. 2017-2018 & 2018-2019 and also to authorize MCI to encash the Bank Guarantee of Rs.2.00 crore. letter 11 You are therefore, directed not to admit students in the MBBS course in the academic years 2017-2018 & 2018-2019 at your College. Thereafter, next batch of students shall be admitted in the College only after obtaining permission of for renewal. Admissions made in violation of the above directives will be treated as irregular and action will be initiated under IMC Act & Regulations made thereunder.” the Central Government 12. The petitioner-Trust challenged the order of the Central Government before the High Court of Kerala at Ernakulam in Writ Petition (C) No.21195/2017 (Y) and the High Court placing reliance on the judgment passed by this Court in <cite>Glocal Medical College and Super Specialty Hospital & Research Centre v. Union of India2</cite> on 1st August, 21017, passed the following order:- “In the light of the order passed by the Apex Court in Writ Petition (Civil) No.411 of 2017 and connected matters on 01.08.2017, as the medical colleges involved in these cases are similarly placed, I deem it appropriate to pass an interim order directing the Central Government to consider afresh record pertaining to the issue of renewal or otherwise of the letter of permission granted to the petitioner colleges/institutions. Ordered accordingly. It is made clear that while undertaking this exercise, the Central Government shall re-evaluate the the materials on 2 (2017) 8 SCALE 356 12 recommendations/views of the MCI, Hearing Committee, Director General of Health Services and the Oversight Committee, as available on records. The Central Government shall also afford an opportunity of hearing to the petitioner colleges/institutions to the extent necessary. The process of hearing and the final reasoned decision thereon, as ordered, shall be completed peremptorily, within a period of fifteen days from today.” 13. In pursuance of the aforesaid order, the Central Government on 14th August, 2017, passed an order declining Letter Of Permission to the petitioner-institution. The Central Government noted:- “Whereas, the MCI vide letter dated 15.1.2017 has informed and recommended to the Ministry as under: “In view of the above, the college has failed to abide by the undertaking it had given to the Central Govt. that there are no deficiencies as per clause 3.2(i) of the directions passed by the Supreme Court mandated Oversight Committee vide communication dated 11/8/2016. The Executive Committee, after due deliberation and discussion, have decided that the college has failed to comply with the stipulation laid down by the Oversight Committee. Accordingly, the Executive Committee recommends that as per the directions passed by Oversight Committee in para dated 11/08/2016 the college should be debarred from admitting students in the above course for a period of two academic years i.e. 2017-18 & 2018-19 as even after giving an undertaking that they have fulfilled the entire infrastructure for establishment of new medical college at Palakkad communication 3.2(b) vide 13 by Royal Medical TGrust under Kerala University of Health Sciences, Thrissur the college was found to be grossly deficient. It has also been decided by the Executive Committee that the Bank Guarantee furnished by the college in pursuance of the directives passed by the Oversight Committee as well as GOI letter dated 20/08/2016 is liable to be enchashed. Ministry decided to grant a personal hearing to the College on 08.02.2017 by the DGHS. The Hearing Committee after considering the oral and written submission of the College, submitted its report to the Ministry. In its report, the Hearing Committee observed as under: Sl. No Deficiencies reported by MCI Observations i. ii. iii. iv. Deficiency of faculty is 13.84% as detailed in the report. Shortage of Residents is 8.69% as detailed in the report No Anti Sera are available in Microbiology laboratory. Bed occupancy is 50% at 10 a.m. on day of assessment as under of hearing committee No satisfactory justification for deficiencies. Beds Available Occupied 72 29 20 07 06 07 31 25 02 02 21 150 # Departure 1 General Medicine Paediatrics 2 TB & Chest 3 4 Psychiatry 5 Skin & VD 6 General Surgery 24 08 08 08 90 7 Orthopaedics 30 8 Ophtalmology 10 9 ENT 10 40 10 O.G. Total 300 14 v. vi. vii. viii. ix. x. xi. xii. Casualty : Separate Casualty for O.G. is not available. Crash Cart is not available O.T. : Preoperative beds are not available ICUs : There was only 1 patient in ICCU, SICU on day of assessment. Only 1 out of 2 Static X-ray machines has AERB approval. Blood Bank: Only 2 units were dispensed on day of assessment. ETO Sterilizer is not available. OPD : Separate Registration counters for OPD/IPD are not available. Audiometry (Soundproof & Air-conditioned) is not available. There was no Audiometer. Whereas, the Ministry forwarded the Hearing Committee report to the OC for guidance. The OC vide its letter dated 14.05.2017 conveyed their following views to the Ministry:- is within is 3.03% which (i) Faculty:- Considering the 7 members of faculty (out of 8) as explained by the College, the deficiency the acceptable limits. (ii) Residents:- Considering the 4 residents as explained by the College, there is no deficiency. (iii) No Anti Sera:- The deficiency is subjective though explained by the College. (iv) Bed occupancy:- The College has explained the grounds. (v) Casualty:- The College has explained the grounds. This deficiency is subjective. No MSR. (vi) OT:- The College has explained the grounds. (vii) ICUs:- The College has explained the grounds. This deficiency is subjective. No MSR. (viii) X-Ray machines:- The statement of College is correct as seen from the attached approvals. (ix) Blood Bank:- The ColLege has explained the grounds. This deficiency is subjective. No MSR. (x) ETO:- The College has explained the grounds. (xi) OPD:- The College has explained grounds. the 15 (xii) Audiometry:- The College explanation is acceptable on the basis of photos attached. LOP confirmed.” 14. After so noting, the Central Government referred to its earlier order dated 31st May, 2017 and the order dated 2nd August, 2017, passed by the High Court of Kerala at Ernakulam and held thus:- “Now, in compliance with the above direction of Hon’ble High Court dated 2.8.2017, the Ministry granted hearing to the college on 8.8.2017. The Hearing Committee after considering the record and oral & written submission of the college submitted its report to the Ministry. Findings of Hearing Committee are as under: “MCI has pointed out deficiency of 9 faculty and 4 residents against the requirement. The shortfall is attributed by the college to leave opted by staffs during the Christmas – New Year week. Supporting documents such as bank statement Form-16 (for financial year 2015-16) were also submitted for the doctors on leave. It is observed that the appointment orders issued by the college are without any reference number. Nothing could be conclusively established about the faculty on leave. The submission of the college regarding static x-ray machine, pre-operative beds, ETO sterilizer, audiometry, etc. may be accepted. However, the college seems deficient in bed occupancy. In view of the Committee, the college is at LoP stage and the facilities have to be satisfactorily verified. 16 The Committee agrees with the decision of the Ministry vide letter dated 31.05.2017 to debar the college for two years and also permit MCI to encash bank guarantee. Accepting the recommendations of Hearing Committee, the Ministry reiterates it earlier decision dated 31.5.2017 to debar the college from admitting students for a period of 2 years i.e., 2017-18 & 2018-19 and also authorize MCI to encash Bank Guarantee of Rs.2 crores.” The said order is the subject matter of assail in this Writ Petition. 15. We have heard Dr. Rajiv Dhawan and Mr. Mukul Rohatgi, learned senior counsel for the petitioners, Mr. Ajit Kumar Sinha, learned senior counsel for the Union of India and Mr. Vikas Singh, learned senior counsel along with Mr. Gaurav Sharma, learned counsel for the MCI. 16. Learned counsel for the petitioners submit that the inspection that has been carried out by the MCI is a composite inspection for 2016-2017 and 2017-2018 and when the deficiencies are marginal and, in fact, it can be said there is really no deficiency, there is no justification to deny the LOP for 2017-2018. It is urged by them that the explanation offered by the petitioner-institution has really 17 not been taken into consideration and had it been appositely appreciated, such an assessment could not have been made by the assessors. They have also highlighted that certain other institutions having more deficiencies have been extended the benefit of LOP for 2017-2018, but for no fathomable or acceptable reason, the institution in question has been deprived of the said benefit. It is urged with vehemence that the order passed by the Central Government is not in consonance with the judgments rendered by this Court in <cite>Glocal Medical College (supra)</cite>, <cite>IQ City Foundation and Another v. Union of India & Ors3</cite>. That apart, it is contended that the inspection by the MCI was done during the Christmas and New Year, which is not permissible as per the Regulations and hence, the whole report deserves to be disregarded. Additionally, it is propounded that the status of the order passed by the Central Government still remains an unreasoned one and by stretch of reasoning, it can be conferred the distinction of a reasoned order. Dr. Rajiv Dhawan, pyramiding the aforesaid submissions along with Mr. Mukul Rohatgi, 3 (2017) 8 SCALE 369 18 submits that the Court does not sit in appeal over such order and, therefore, when the order is absolutely perverse and arbitrary, it should be overturned in exercise of power of judicial review and the institution should be granted LOP for the academic year 2017-2018. 17. Mr. Ajit Kumar Sinha, learned senior counsel appearing for the Union of India, per contra, would contend that the Oversight Committee had passed a conditional order and when the conditions were not fulfilled, the institution has to face the consequences and in such a situation it is extremely hollow on the part of the petitioner- institution to set forth unacceptable criticism pertaining to the order passed by the Central Government. He would further submit that the order dated 31st May, 2017, as this Court has already held, was not an order which reflected reason, but the order impugned is irrefragably a reasoned one because there is reference to the history of the institution, the chronology of events, the report of the Oversight Committee, the opinion of the Hearing Committee and eventual expression of an opinion. According to him, if such an order is not given the stamp of a ‘reasoned order’, it 19 will be granting premium to recalcitrant institutions, which are bent upon imparting medical education in an unscrupulous manner. According to Mr. Sinha, concept of negative equality is not within the ambit of Article 14 of the Constitution of India and, in any case, this Court has issued notice to the other institutions and, therefore, the petitioners cannot claim parity. Additionally, he would put forth that in most of the matters, this Court has directed for consideration of the LOP for the year 2018-2019 and the present fact situation does not exposit a different scenario and hence, this Court should not make any distinction in the present case. 18. Mr. Vikas Singh, learned senior counsel appearing for the MCI refuting the arguments advanced by the learned senior counsel for the petitioners, contends that ascribing of reasons by an administrative authority should not be equated to a judgment of the Court, for what is required is to see whether the reasons are discernible and whether there has been application of mind. Mr. Singh would further contend that the allegation made by the petitioner- institution that the Executive Committee has not considered 20 the explanation offered by the competent authority of the college shows an attitude of obstinacy and deviancy. Learned senior counsel would contend that the in <cite>IQ City Foundation (supra)</cite> when this Court remanded the matter and in <cite>Glocal Medical College (supra)</cite> when this Court granted the benefit on proper appreciation, it would be quite lucent, the role conferred on the MCI of India and the reason for extending the benefit to an institution for 2017- 2018. That apart, propounds Mr. Singh, that the educational institutions cannot remain disobedient to the framework of the Regulations brought into existence under Section 33 of the Act and assert with stubbornness that they should be given the LOP. According to him, if such a situation is allowed to prevail, the Act, the Regulations and Minimum Standard Requirement (MSR) for the MCI would be tenuous and ultimately come within the tentacles of unscrupulous institutions. 19. This Court in <cite>IQ City Foundation (supra)</cite>, after referring to <cite>Dr. Ashish Ranjan and Others v. Union of 21 India and Others4</cite> and <cite>Manohar Lal Sharma v. Medical Council of India and Others5</cite>, <cite>Medical Council of India v. Kalinga Institute of Medical Sciences (KIMS) and Others 6</cite> and <cite>Royal Medical Trust (Registered) and Another v. Union of India and Another7</cite> held thus:- “On a reading of Section 10-A of the Act, Rules and the Regulations, as has been referred to in Manohar Lal Sharma (supra), and the view expressed in Royal Medical Trust (supra), it would be inapposite to restrict the power of the MCI by laying down as an absolute principle that once the Central Government sends back the matter to MCI for compliance verification and the Assessors visit the College they shall only verify the mentioned items and turn a Nelson’s eye even if they perceive certain other deficiencies. It would be playing possum. The direction of the Central Government for compliance verification report should not be construed as a limited remand as is understood within the framework of Code of Civil Procedure or any other law. The distinction between the principles of open remand and limited remand, we are disposed to think, is not attracted. Be it clearly stated, the said principle also does not flow from the authority in Royal Medical Trust (supra). In this context, the objectivity of the Hearing Committee and the role of the Central Government assume great significance. The real compliant institutions should not always be kept under the sword of Damocles. Stability can be brought by affirmative role played by the Central Government. And the 4 (2016) 11 SCC 225 5 (2013) 10 SCC 60 6 (2016) 11 SCC 530 7 (2015) 10 SCC 19 22 stability and objectivity would be perceptible if reasons are ascribed while expressing a view and absence of reasons makes the decision sensitively susceptible. Having said this, we are not inclined to close the matter. The petitioners have been running the College since 2013-14. We have been apprised that students who have been continuing their education shall continue for 2017-18. As we find the order of the Central Government is not a reasoned one. It is obligatory on its part to ascribe reasons. For the said purpose, we would like the Central Government to afford a further opportunity of hearing to the petitioners and also take the assistance of the newly constituted Oversight Committee as per the order dated July 18, 2017 passed by the Constitution Bench in Writ Petition (Civil) No. 408 of 2017 titled Amma Chandravati Educational and Charitable Trust and others v. Union of India and another and thereafter take a decision within two weeks. Needless to say, the decision shall contain reasons. We repeat at the cost of repetition that the decision must be an informed one.” 20. Section 10-A of the Act deals with permission for establishment of new medical college, new course of study, etc. Sub-section (7) of Section 10-A reads as follows:- The an order, Council, while making “(7) its recommendations under clause (b) of sub- section (3) and the Central Government, while passing or disapproving the scheme under sub-section (4), shall have due regard to the following factors, namely— either approving 23 training or accommodating (a) whether the proposed medical college or the existing medical college seeking to open a new or higher course of study or training, would be in a position to offer the minimum standards of medical education as prescribed by the Council under Section 19A or, as the case may be, under Section 20 in the case of postgraduate medical education. (b) whether the person seeking to establish a medical college or the existing medical college seeking to open a new or higher course of study or training or to increase its admission capacity has adequate financial resources; (c) whether necessary facilities in respect of staff, equipment, accommodation, training and other facilities to ensure proper functioning of the medical college or conducting the new course or study or the increased admission capacity, have been provided or would be provided within the time- limit specified in the scheme; (d) whether adequate hospital facilities, having regard to the number of students likely to attend such medical college or course of study or training or as a result of the increased admission capacity, have been provided or would be provided within the time-limit specified in the scheme; (e) whether any arrangement has been made or programme drawn to impart proper training to students likely to attend such medical college or course of study or training by persons having the recognised medical qualifications; (f) the requirement of manpower in the field of practice of medicine; and 24 (g) any other factors as may be prescribed.” 21. Section 3-B of Indian Medical Council (Amendment) Act, 2010, which confers the powers on the Board of Governors, reads as follows:- * * grant “3-B. Certain modifications of the Act.— During the period when the Council stands superseded— * (b) The Board of Governors shall— (i) exercise the powers and discharge the functions of the Council under this Act and for this purpose, the provisions of this Act shall have effect subject to the modification that references therein to the Council shall be construed as references to the Board of Governors; for (ii) establishment of new medical colleges or opening a new or higher course of study or training or increase in admission capacity in any course of study or training referred to in Section 10A or giving the person or college concerned a reasonable opportunity of being heard as provided under Section 10A without prior permission of the Central Government under that section, including exercise of the power to finally approve or disapprove the same; and (iii) dispose of the matters pending with the Central Government under Section 10A upon receipt of the same from it.” independently permission 22. In <cite>Manohar Lal Sharma (supra)</cite>, Section 3-B was interpreted thus:- 25 “MCI, with the previous sanction by the Central Government, in exercise of its powers conferred by Sections 10-A and 33 of the Indian Medical Council Act, 1956, made the Regulations known as the Establishment of Medical College Regulations, 1999. Regulation 8 of the 1999 Regulations deals with grant of permission for establishment of new college. Application/ Scheme submitted by the applicants is evaluated and the verification takes place by conducting physical inspection by the team of inspectors of MCI. The Board of Governors may grant LoP to the applicant for making admissions in the first year of MBBS course in the medical college and the permission is renewed every year subject to the college achieving the yearly target mentioned in “Minimum Standard Requirements for the Medical College for 150 Admissions Annually the Regulations, abovementioned for accommodation in the medical college and its teaching hospital. Schedule II deals with equipment required for various departments in the college and hospital. The requirements are statutorily prescribed and, therefore, the Board of Governors has no power to dilute the statutory requirements mentioned in the abovementioned Regulations.” of provides Regulation 1999”. Schedule I 23. In <cite>Royal Medical Trust (supra)</cite>, the Court after due advertence to Section 10-A of the Act and the Regulations framed by the Medical Council of India, has ruled:- “MCI and the Central Government have been vested with monitoring powers under Section 10A and the Regulations. It is expected of these authorities to discharge their functions well within the statutory confines as well as in 26 and same time must stages conformity with the Schedule to the Regulations. If there is inaction on their part or non- observance of the time schedule, it is bound to have adverse effect on all concerned. The affidavit filed on behalf of the Union of India shows that though the number of seats had risen, obviously because of permissions granted for establishment of new colleges, because of disapproval of renewal cases the resultant effect was net loss in terms of number of seats available for the academic year. It thus not only caused loss of opportunity to the students community but at the same time caused loss to the society in terms of less number of doctors being available. MCI and the Central Government must therefore show due diligence right from the day when the applications are received. The Schedule giving various time-limits must accommodate every possible eventuality and at the the requirements of observance of natural justice at various levels. In our view the Schedule must ideally take care of: (A) Initial assessment of the application at the first level should comprise of checking necessary requirements such as essentiality certificate, consent for affiliation and physical features like land and hospital requirement. If an applicant fails to fulfil these requirements, the application on the face of it, would be incomplete and be rejected. Those who fulfil the basic requirements would be considered at the next stage. (B) Inspection should then be conducted by the Inspectors of MCI. By very nature such inspection must have an element of surprise. Therefore sufficient time of about three to four months ought to be given to MCI to cause inspection at any time and such inspection should normally be undertaken latest by comply with 27 January. Surprise inspection would ensure that the required facilities and infrastructure are always in place and not borrowed or put in temporarily. (C) Intimation of the result or outcome of the inspection would then be communicated. If the infrastructure and facilities are in order, the medical college concerned should be given requisite permission/renewal. However, if there are any deficiencies or shortcomings, MCI must, after pointing out the deficiencies, grant to the college concerned sufficient to report compliance. (D) If compliance is reported and the applicant states that the deficiencies stand removed, MCI must cause compliance verification. It is possible that such compliance could be accepted even without actual physical verification but that assessment be left entirely to the discretion of MCI and the Central Government. In cases where actual physical verification is required, MCI and the Central Government must cause such verification before the deadline. (E) The result of such verification if positive in favour of the medical college concerned, the applicant requisite permission/renewal. But if the deficiencies still persist or had not been removed, the applicant will stand disentitled so far as that academic year is concerned.” ought given time to be [Emphasis added] 24. On a perusal of the aforesaid, it is clear as crystal that the surprise inspection is permissible and the college is required to remain compliant. The thrust of the matter is 28 whether the inspection is justified and the decision taken by the Central Government is correct or not. To appreciate the propriety and correctness of the inspection during Christmas and New Year, it is necessary to refer to clause 8(3)(1)(d) of the Establishment of Medical College Regulations, 1999. The said clause reads as follows:- “However, the office of the Council shall ensure that such inspections are not carried out at least 2 days before and 2 days after important religious and the Central/State Govt.” festival holidays declared by 25. In the case at hand, the assessors had gone for inspection on 28th and 29th December, 2016. In <cite>Shri Venkateshwara University Through its Registrar & Another vs. Union of India and Another8 [Writ Petition (Civil) No. 445 of 2017]</cite> this Court has referred to the decision in <cite>Kanachur Islamic Education Trust (R) vs. Union of India and Another9</cite> and after reproducing few paragraphs has held:- “On a careful reading of the aforesaid judgment, we do not think that the clause has been interpreted as not to allow any inspection on a 8 2017 SCC Online SC 1034 9 (2017) 10 SCALE 321 29 community was Sunday, but the Court have said in the factual matrix of the said case that the Institution was a minority institution and a major festival for the said scheduled on 12th December, 2016 and the day previous thereto i.e. 11th December, 2016, was a Sunday and the said facts are not wholly irrelevant. The said analysis cannot be regarded as the construction of the clause. Having said that, we shall proceed to analyze what the clause precisely conveys. On a careful reading of the same, it is quite clear and unambiguous that the obligation of the MCI is to ensure that inspections are not to be carried out at least 2 days before and 2 days after an important religious and festival holidays declared by the Central/State Government. In the clause, the words which gain significance are “important On 12th religious and December, 2016, it was Milad-un-Nabi and it is the day of festival. The inspection was done on 9th December, 2016, which was a Friday. The amended clause of the notification state only covers 2 days before the festival declared as a holiday by the Central/State Government and 2 days thereafter. In the case at hand, the inspection team had gone for inspection on 9th December, 2016, and they were deprived to carry out the inspection. It was not covered by the concept of two days of moratorium.” festival holidays”. 26. At this juncture, it is pertinent to understand and appreciate the ratio of <cite>Kanachur Islamic Education Trust (R) (supra)</cite> because it is being highlighted in certain cases that there is no acceptability or permissibility to have a 30 second inspection in quite succession. The paragraph that has been highlighted from <cite>Kanachur Islamic Education Trust (R) (supra)</cite> reads thus:- “That against the inspections conducted by the MCI, the petitioner’s college/institution had submitted representations on 15.12.2016 and 16.1.2017 before the Central Government is a matter of record. That the report qua the inspection conducted on 17-18.11.2016 did not disclose any substantial deficiency warranting the Hearing disapproval as observed by Committee is unambiguously clear that the inspection of the petitioner’s college undertaken on 17-18.11.2016 did not divulge any substantial deficiency justifying disapproval of the LOP to it. The reason inspection on 9- 10.12.2016, i.e. within three weeks of the first exercise and that too in absence of any noticeable substantial deficiency, is convincingly not forthcoming.” the surprise is also not for in dispute. It 27. On a careful reading of the said paragraph, it is limpid that is not the ratio of the decision that there cannot be a surprise inspection and every time reasons have to be recorded. Be it noted, the Court has also clarified the position at the end of the verdict stating thus:- 31 “We make it clear that the decision rendered and the directions issued are in the singular facts and circumstances of the case.” 28. It is well settled in law that the ratio of a decision has to be understood regard being had to its context and factual exposition. The ratiocination in an authority is basically founded on the interpretation of the statutory provision. If it is based on a particular fact or the decision of the Court is guided by specific nature of the case, it will not amount to the ratio of the judgment. <cite>Lord Halsbury in Quinn v. Leathem10</cite> has ruled:- “… every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but are governed and qualified by the particular facts of the case in which such expressions are to be found.” 29. A three-Judge Bench in <cite>Union of India and others v. Dhanwanti Devi and others 11</cite> , while adverting to the concept of precedent under Article 141 of the Constitution, has opined thus:- “Before adverting to and considering whether solatium and interest would be payable under the 101901 AC 495 : (1900-03) ALL ER Rep 1 (HL) 11 (1996) 6 SCC 44 32 Act, at the outset, we will dispose of the objection raised by Shri Vaidyanathan that Hari Krishan Khosla case12 is not a binding precedent nor does it operate as ratio decidendi to be followed as a precedent and is per se per incuriam. It is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judge’s decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well-settled theory of precedents, every decision contains three basic postulates—(i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation therein nor what logically follows from the various observations made in the judgment. Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. It would, therefore, be not profitable to extract a sentence here and there from the judgment and to build upon it because the essence of the decision is its ratio and not every observation found therein. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. The concrete decision alone is binding between the parties to it, but it is the abstract found 12 (1993) Supp (2) 149 33 ratio decidendi, ascertained on a consideration of the judgment in relation to the subject-matter of the decision, which alone has the force of law and which, when it is clear what it was, is binding. It is only the principle laid down in the judgment that is binding law under Article 141 of the Constitution. A deliberate judicial decision arrived at after hearing an argument on a question which arises in the case or is put in issue may constitute a precedent, no matter for what reason, and long recognition may mature into rule of stare decisis. It is the rule deductible from the application of law to the facts and circumstances of the case which constitutes its ratio decidendi. the precedent by Therefore, in order to understand and appreciate the binding force of a decision it is always necessary to see what were the facts in the case in which the decision was given and what was the point which had to be decided. No judgment can be read as if it is a statute. A word or a clause or a sentence in the judgment cannot be regarded as a full exposition of law. Law cannot afford to be static and therefore, Judges are to employ an intelligent technique in the use of precedents.” 30. In <cite>Bussa Overseas and Properties Private Limited and Another vs. Union of India and Another 13</cite>, while dealing with the precedential value of the decision in <cite>Thungabhadra Industries Limited vs. State of A.P. 14</cite>, the two-Judge Bench held:- 13 (2016) 4 SCC 696 14 AIR 1964 SC1372 34 “The aforesaid decision in Thungabhadra Industries Ltd. case when properly appreciated clearly reveals that it pertains to the stage when objection is to be taken. It does not lay down that a special leave petition against a review petition is maintainable or not. The focus on the stage of taking objection is fact-centric but not principle- oriented. To elaborate, the said decision does not lay down as a principle that the Court is bereft of power If we understand the view expressed therein, it can be said that the Court has been guided by the concept of propriety.” to hear on maintainability. [Emphasis supplied] 31. In <cite>Royal Medical Trust (supra)</cite>, this Court has clearly held that there can be surprise inspection as that ensures that the required facilities and infrastructure are always in place and not borrowed or put in temporarily. 32. In <cite>IQ City Foundation and Another (supra)</cite>, after referring to <cite>Royal Medical Trust (supra)</cite>, the Court has held:- “Therefore, the emphasis is on the complaint institutions that can really educate doctors by imparting quality education so that they will have the inherent as well as cultivated attributes of excellence.” 33. Thus, in our considered opinion what has been stated in <cite>Royal Medical Trust (supra)</cite> and <cite>IQ City Foundation (supra)</cite> has the precedential value under Article 141 of the 35 Constitution. We have no hesitation in saying that the pronouncement in <cite>Kanachur Islamic Education Trust (R) (supra)</cite> has to rest on its own facts. 34. Having said that, it is necessary to scrutinise the explanation offered by the Principal of the petitioner- institution. The Principal has justified the leave availed of by the faculty and the residents during the period of inspection of the assessors of the Medical Council of India. We think it appropriate to reproduce the said explanation:- leave on various reasons during “We would like to bring to your kind notice that few faculty and residents were on leave and half day the assessment conducted by MCI in Kerala Medical College, Palakkad on 28-12-2016. The details are mentioned below for your kind perusal. 1. Dr. Gurusiddana Gowda, Associate Professor of Radio Diagnosis. His father had expired two weeks back and he had gone to perform the rituals of his father as per Hindu religious custom. He is the elder son in the family. Form 16, salary statement from bank and attendance register copy is enclosed herewith. 2. Dr. R. Balamurugan Ramdas, Associate Professor of Bio Chemistry. 36 He had gone to his native Pondichery during Christmas Holidays taking leave till 01-01-2017 because of personal reasons. Form 16, salary statement from bank and attendance register copy is enclosed herewith- leave submission form. 3. Dr. MS Ramaiyah, Associate Professor of Medicine. He was on half day leave on 28-12-2016 and reported in the afternoon. He was presented before the inspectors but not accepted as he was not present at the time of taking attendance at 11 a.m. Form 16, salary statement from the bank and attendance register copy is enclosed herewith. 4. Dr. N. Natarajan, Associate Professor of Medicine. He was on half day leave on 28-12-2016 and reported in the afternoon. He was presented before the inspectors but not accepted as he was not present at the time of taking attendance at 11 a.m. Form 16, salary statement from the bank and attendance register copy is enclosed herewith. 5. Dr. MS Dhananjaya, Professor of OBG. His cousin brother had expired and the 12th day ritual ceremony was on 28-12-2016 and he had been sanctioned leave. He is present on 29-12- 2016 and presented before the assessors. Form 16, salary statement from the bank and attendance register copy is enclosed herewith. 37 6. Dr. Ravi Chandra, Associate Professor of Surgery. He had gone to his native during Christmas holidays taking leave till 31-12.2016 because of personal reasons. Salary statement from bank and attendance register copy is enclosed herewith. 7. Dr. Asha S Jagtap, Professor of PSM She had gone to her native during Christmas holidays taking leave till 31-12-2016 because of personal reasons. Form 16, salary statement from the bank and attendance register copy is enclosed herewith. 8. Dr. Girist A, Senior Resident in Medicine. He was on half day leave on 28-12-2016 and reported in the afternoon. He was presented before the inspectors but not accepted as he was not present at the time of taking attendance at 11 a.m. Salary statement from the bank and attendance register copy is enclosed herewith. 9. Dr. Basavaraj SK, Senior resident of Medicine. He had gone to his native during Christmas holidays taking leave till 31-12-2016 because of personal reasons. Salary statement from bank and attendance register copy is enclosed herewith. 10. Dr. B. Ravindra Shivaji, Senior Resident of Radio Diagnosis. 38 He had gone to his native during Christmas holidays taking leave till 31-12-2016 because of personal reasons. Salary statement from bank and attendance register copy is enclosed herewith. 11. Dr. Harithakumari Landa, Senior Resident of pulmonary medicine. She had gone to his native during Christmas holidays taking leave till 31-12-2016 because of personal reasons. Salary statement from the bank and attendance register copy is enclosed herewith.” 35. It is submitted by the learned senior counsel appearing for the petitioners that the Medical Council of India as well as the Central Government should have accepted the leave position and, in any case, it was within the permissible limit. 36. In this regard, Mr. Vikas Singh learned senior counsel for the MCI has drawn our attention to the extract of the Minutes of the Executive Committee dated 21st August, 2014. It reads as follows:- “Regarding specifying the type of acceptable leave during inspection of medical colleges. 39 Read: the matter with regard to regarding specifying the type of acceptable leave during inspection of medical colleges. The Executive Committee of the Council considered the report of the Sub Committee dt. 17.04.2014 as constituted by the Executive Committee at its meeting held on 14th March, 2014 and decided to accept the report with the following amendments:- (1) The faculty who is on leave due to the following reasons would be accepted; For attending the (a) conferences International/National Associations or Societies; International/National by respective organized (b) For attending any work assigned by Medical Council of India, either at headquarters or for assessment of a medical college; (c) For conducting examination of the concerned subject in a medical college in Central/State University; (d) For attending Courts; Provided that appropriate documents certifying the same which are countersigned by the dean are furnished. (2) The faculty who is on sanctioned Maternity leave would be accepted provided the appropriate leave sanction order issued by the sanctioning authority and countersigned by the Dean is furnished with all necessary certificates.” 40 37. The said resolution is strenuously contested by the learned senior counsel for the petitioners. It is urged with immense vehemence that the resolution smacks of gross arbitrariness and reveals a sense of hidden base for use of power of an absolute tyrant and a despot. Mr. Singh explaining the same would submit that a hospital to remain compliant has to have the requisite number of doctors and staff, and to run a medical college constant compliance is imperative. According to him, when a college is granted LOP for the first year, 5% margin with regard to absence is granted and that is why certain categories of leave have not been mentioned in the resolution, but that does not mean that the college can grant leave to the doctors at its whim and fancy. Be that as it may, the absence of faculty members which has been taken note of by the Medical Council of India and accepted by the Central Government cannot be allowed to pale into total insignificance. In this regard, a submission advanced by the learned senior counsel for the petitioners requires to be noted. It is urged by them that the engagement of the faculty members are to 41 be believed as they are paid their salaries by the petitioners and it is shown in the necessary Income Tax form. 38. It needs no special emphasis to state that the said submission cannot be the guiding factor for our analysis. The issue is the deficiency of the doctors and the absence of the doctors during the period of inspection. We have already held that the period in which the assessors inspected cannot be said to be a period covered under the Regulations. That apart, as is noticeable, the Hearing Committee which has been constituted on the basis of the decision in <cite>Amma Chandravati Educational and Charitable Trust (supra)</cite>, has also held that the college is deficient in bed occupancy at the conditional LOP stage other facilities have to be specifically verified and in the absence of satisfaction, the LOP ought not to be granted. 39. In the course of hearing, Mr. Rohatgi, learned senior counsel for the petitioners has placed heavy reliance on <cite>Krishna Mohan Medical College and Hospital & Anr v. Union of India & Anr 15 (Writ Petition (Civil) No. 448 of 2017 decided on 01.09.2017)</cite> and <cite>Dr. Jagat Narain 15 2017 SCC Online SC 1032 42 Subharti Charitable Trust & Anr v. Union of India & Ors16</cite>. 40. In <cite>Krishna Mohan Medical College (supra)</cite>, this Court has held:- therewith for in accordance “… as the Act and Regulations framed thereunder have been envisioned to attain the highest standards of medical education, we direct the Central Government/MCI to cause a fresh inspection of the petitioner college/institution to be made the academic year 2018-19 and lay the report in respect thereof before this Court within a period of eight weeks herefrom. A copy of the report, needless to state, would be furnished to the petitioner college/institution at the earliest so as to enable it to avail its remedies, if so advised, under the Act and the Regulations. The Central Government/MCI would not encash the bank petitioner guarantee college/institution. For the impugned order dated 10.8.2017 stands modified to this extent only. The direction for a writ, order or direction to the respondents to permit the petitioner college/institution to admit students for the academic year 2017-18, in the facts of the case, is declined.” furnished the present, by the 41. In <cite>Dr. Jagat Narain Subharti Charitable Trust (supra)</cite>, the Court, while granting the benefit for academic session 2017-2018, opined:- “Thus, there has been substantial compliance of the petitioners. the said requirement by 16 (2017) 10 SCALE 308 43 Assuming that the notification dated 16.10.2015 applied even to the proposal of the petitioners, suffice it to observe that failure to furnish information in the prescribed Form-5 cannot be held against the petitioners. In any case, that is not a deficiency relating to infrastructure or academic matters as such, which may require a different approach.” 42. The aforesaid decisions speak for themselves and, therefore, reliance on the same by the petitioners is of no avail. 43. Dr. Rajiv Dhawan would submit that this Court should not exercise appellate jurisdiction which is fundamentally called an error jurisdiction or rectification of errors. We are absolutely conscious of the appellate jurisdiction and the jurisdiction this Court is required to exercise while determining the controversy in exercise of power of judicial review under Article 32 of the Constitution. The principle of judicial review by the constitutional courts have been lucidly stated in many an authority of this Court. In <cite>Tata Cellular v. Union of India17</cite>, dealing with the concept of Judicial Review, the Court held:- 17 (1994) 6 SCC 651 44 “<icite>Lord Scarman in Nottinghamshire County Council v. Secretary of State the Environment </icite> proclaimed: for ‘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 beneficial power.” Commenting upon this Michael Supperstone and James Goudie in their work Judicial Review (1992 Edn.) at p. 16 say: it has “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, 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 <icite>Butcher v. Petrocorp Exploration Ltd. 18-3-1991</icite>.” received Observance of judicial restraint is currently the mood in England. The judicial power of review is exercised 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. Judicial review is concerned with reviewing not the merits of the decision in support of which the application for judicial review is made, but the decision-making process itself.” 45 44. After so stating, reference was made to the law enunciated in Chief Constable of the <icite>North Wales Police v. Evans18</icite> wherein, it has been ruled:- “Judicial review, as the words imply, is not an appeal from a decision, but a 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.” 45. In the said case, the Court also referred to R. v. Panel on Take-overs and Mergers, ex. P. Datafin plc19 wherein Sir John Donaldson, M.R. commented:- “An application for judicial review is not an appeal.” 46. The three Judge Bench further held:- “The duty of the court is to confine itself to the question of legality. Its concern should be: 1. Whether authority exceeded its powers? 2. Committed an error of law, a decision-making 18 (1982) 3 All ER 141 19 (1987) 1 All ER 564 46 3. committed a breach of the rules of natural justice, 4. reached a decision which no reasonable tribunal would have reached or, 5. abused its powers.” 47. The Court further opined that in the process of judicial review, it is only concerned with the manner in which the decisions have been taken. The extent of the duty is to act fairly. It will vary from case to case. Explicating further, it ruled:- “Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under: Illegality : This means (i) the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. (ii) unreasonableness. (iii) Procedural impropriety. Irrationality, namely, Wednesbury 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 Brind, 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”. 47 48. Thereafter, the Court referred to the authorities in <icite>R. v. Askew 20 and Council of Civil Service Unions v. Minister for Civil Service21</icite> and further expressed:- “At this stage, The Supreme Court Practice, 1993, Vol. 1, pp. 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 judicial review proceedings where the court concludes that that no authority properly directing itself on the relevant law and acting reasonably could have reached it. (Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., per Lord Greene, M.R.)” the decision in is such We may hasten to add, though the decision was rendered in the context of justification of grant of contract but the principles set out as regards the judicial review are of extreme significance. 49. Discussing at length, the principle of judicial review in many a decision, the two Judge Bench in <cite>Reliance Telecom Ltd. & Another v. Union of India & Another22</cite>, has held:- 20 (1768) 4 Burr 2186 : 98 ER 139 21 (1985) 1 AC 374 : (1984) 3 All ER 935 : (1984) 3 WLR 1174 22 (2017) 4 SCC 269 48 “As we find, the decision taken by the Central Government is based upon certain norms and parameters. Though criticism has been advanced that it is perverse and irrational, yet we are disposed to think that it is a policy decision which subserves the consumers’ interest. It is extremely difficult to say that the decision to conduct the auction in such a manner can be considered to be mala fide or based on extraneous considerations.” 50. Thus analysed, it is evincible that the exercise of power of judicial review and the extent to which it has to be done will vary from case to case. It is necessary to state with emphasis that it has its own complexity and would depend upon the factual projection. The broad principles have been laid down in <cite>Tata Cellular (supra)</cite> and other decisions make it absolutely clear that judicial review, by no stretch of imagination, can be equated with the power of appeal, for while exercising the power under Article 226 or 32 of the Constitution, the constitutional courts do not exercise such power. The process of adjudication on merit by re-appreciation of the materials brought on record which is the duty of the appellate court is not permissible. 51. The duty of the Court in exercise of the power of judicial review to zealously guard the human rights, fundamental rights and the citizens’ right of life and liberty 49 as also many non-statutory powers of governmental bodies as regards their control over property and assets of various kinds. (See : <cite>Union of India and Anr. v S.B. Vohra23</cite>) 52. What Dr. Dhawan submits basically is that as the order passed by the Central Government after the order passed by the High Court of Kerala does not really reflect any reason, this Court should axe the same treating it as arbitrary and grant the LOP and that would be within the power of judicial review. The order passed by the Central Government has to be appreciated in its entirety. We repeat at the cost of repetition that neither the Central Government nor the Hearing Committee is expected to pass a judgment as a Judge is expected to do. The order must reflect application of mind and should indicate reasons. We may reiterate that the order dated 31st May, 2017, was bereft of reason, but the order impugned, that is the order dated 14th August, 2017, cannot be said to be sans reason. Learned senior counsel would contend with all the vigour at his command that it is not a reasoned one and for the same 23 (2004) 2 SCC 150 50 our attention has been drawn to the penultimate paragraph of the order. 53. We are of the considered opinion that the order of the present nature has to be appreciated in entirety and when we peruse the entire order, we find that substantial reasons have been ascribed and, therefore, we are compelled to repel the submissions so assiduously and astutely advanced by Dr. Dhawan. 54. Keeping in view the facts and circumstances of the case, we sum up our conclusions and directions, thus:- (a) The petitioners are not entitled to Letter Of Permission (LOP) for the academic session 2017-2018. We direct that the order passed in the present writ petition shall be applicable hereafter for the academic session 2017-2018 since the cut off date for admissions to MBBS course for academic session 2017-2018 is over and the academic session has commenced. No petition shall be entertained from any institution/college/society/trust or any party for grant of LOP for 2017-2018. We say so as the controversy for grant of LOP for the academic year 2017-2018 should 51 come to an end and cannot become an event that defeats time. The students who are continuing their studies on the basis of LOP granted for the academic year 2016-2017 should be allowed to continue their studies in the college and they shall be permitted to continue till completion of the course. (b) The applications submitted for 2017-2018 shall be treated as applications for 2018-2019 and the petitioners shall keep the bank guarantee deposited with the Medical Council of India alive and the MCI shall not encash the same. (c) The Medical Council of India shall conduct a fresh inspection as per the Regulations within a period of two months. It shall apprise the petitioner-institution with regard to the deficiencies and afford an opportunity to comply with the same and, thereafter, proceed to act as contemplated under the Act. (d) The inspection shall be carried out for the purpose of grant of LOP for the academic session 2018-2019. 52 (e) After the Medical Council of India sends its recommendation to the Central Government, it shall take the final decision as per law after affording an opportunity of hearing to the petitioners. Needless to say, it shall take the assistance of the Hearing Committee as constituted by the Constitution Bench decision in <cite>Amma Chandravati Educational and Charitable Trust (supra)</cite> or other directions given in the said decision. 55. The writ petition is, accordingly, disposed of. There shall be no order as to costs. New Delhi, September 12 , 2017.

2. This appeal is filed against the final judgment and   order   dated   09.03.2015   passed   by   the   Delhi High   Court   in   Execution   Petition   No.337   of   2014 with EA Nos.697­98 of 2014 and EA Nos.199­200 of 2015   whereby   the   High   Court   has   dismissed   the Execution   Petition   and   the   accompanying applications filed by appellant ­ STC herein on the ground of lack of jurisdiction. 3. In order to appreciate the controversy involved in this appeal, it is necessary to set out the relevant facts hereinbelow. 4. On   04.04.2005,   a   tripartite   agreement   was entered into between the appellant i.e. State Trading Corporation   a   Government­owned   Corporation (hereinafter referred to as “STC”), respondent No.1 ­ M/s Global Steel Holding Ltd. (hereinafter referred to   as   “GSHL”),   incorporated   in   the   Isle   of   Man Channel   Islands,   and   respondent   No.   2   ­   M/s Global   Steel   Philippines   Inc.,   incorporated   in   the 2 Philippines   (hereinafter   referred   to   as   “GSPI”). Respondent   No.   3   is   Mr.   Pramod   Mittal,   the Chairman   of   the   respondent   nos.   1   and   2 companies, i.e. GSHL and GSPI. The agreement was for purchase and sale of commodities known as ­ HR Coils and CR Coils. 5. Mr.   Dushyant   Dave,   learned   senior   counsel appeared   for   the   appellant   –   STC,   while   the respondents   were   represented   by   Mr.   Kapil   Sibal, Senior Advocate along with Mr. Gautam Mittra. 6. In   performance   of   the   agreement,   disputes arose between the parties, particularly with respect to   the   non­payment   of   outstanding   dues   to   the appellant ­ STC. The parties, therefore, decided to settle   their   disputes   by   means   of   conciliation proceedings with the assistance of two Conciliators.  7. The parties (STC, GSHL and GSPI) entered into a   Settlement   Agreement   under   Section   73   of   the Arbitration   and   Conciliation   Act,   1996   (for   short 3 “the   Act”)   on   15.11.2011.     In   terms   of   the Settlement Agreement, the GSHL and GSPI agreed to pay a total amount of US$ 355,818,019.29 with interest @ 13.25% p.a. by 11.05.2012 as per para (D) of the Settlement Agreement to the appellant – STC, and in the manner set out in detail in clauses A to K of the Settlement Agreement. 8. The   GSHL   and   GSPI   paid   some   amounts pursuant   to   the   Settlement   Agreement   to   STC. However, they failed to ensure full compliance with the   terms   of   the   Settlement   Agreement   dated 15.11.2011   and   committed   default   in   paying   full payment to appellant ­ STC. 9.     The   parties   therefore   entered   into   a   Further Settlement   Agreement   dated   17.05.2012   through the intervention of the Conciliators. 10. As   per   the   Further   Settlement   Agreement dated 17.05.2012, GSHL and GSPI agreed to pay a total amount of US $ 347,737,209.68 inclusive of 4 interest at the rate of 13.50 % p.a. (Rs.1605 crores in  Indian  currency) by  10.11.2012  in the  manner set   out   in   detail   in   clauses   (i)   and   (vi)   of   the agreement   to   the   appellant   ­   STC.   Both   the Settlement   Agreement  and   the   Further   Settlement Agreement were executed by respondent No. 3 ­ Mr. Pramod   Mittal   as   Chairman   of   GSHL   and   GSPI, respectively. 11. As per Clause 12 (iv) of the Further Settlement Agreement (supra), respondent No. 3 ­ Mr. Pramod Mittal   furnished   a   Personal   Guarantee   dated 17.05.2012   wherein   he   personally   guaranteed payment   of   the   outstanding   amount   payable   by GSHL and GSPI to the appellant – STC in terms of the   Settlement   Agreement   dated   15.11.2011 together  with  interest @  13.25% p.a.  and  Further Settlement  Agreement dated  17.05.2012.  The  said respondent   undertook   to   pay   the   outstanding amount, and stated that the guarantee shall remain 5 valid till the entire outstanding dues of GSHL and GSPI were fully discharged.  12. Since   GSHL   and   GSPI   failed   to   fulfill   their complete obligations under the Further Settlement Agreement dated 17.05.2012, the   appellant   ­   STC herein   filed   an   Execution   Petition   bearing No.337/2014   in   the   High   Court   of   Delhi   on 30.08.2014 against GSHL (R­1), GSPI (R­2) and Mr. Pramod   Mittal,   Chairman,   GSHL(R­3)   seeking   to execute   the   Settlement   Agreements   dated 15.11.2011   and   17.05.2012   against   all   the respondents for recovery of the balance outstanding amounts due and payable. 13. The appellant – STC, the decree holder, filed Execution   Applications   Nos.   697/2014   and   199­ 200/2015. Insofar as application No.697/2014 was concerned, it was filed under Order 21 Rule 11 (2) of CPC for attachment and sale of all shares and other assets of the respondent No.1, with a further prayer 6 for   issuance   of   warrants   of   arrest   against   the Directors and Principal Officers of respondent Nos.1 and 2 till realization of entire dues.    14.   The   Delhi   High   Court  vide  order   dated 09.03.2015, dismissed the Execution Petition along with the accompanying applications on the ground that   admittedly   none   of   the   judgment­debtors   is located   within   the   jurisdiction   of   the   Court.   The Registered Offices of respondent Nos. 1 and 2 were outside   India.   The   Execution   Petition   could   be entertained by a Court within whose jurisdiction the judgment­debtors, or their properties were situated. That since none of them is ordinarily resident within the jurisdiction of the Court, the Execution Petition could not be entertained, and was dismissed with liberty   to   the   decree­holder   to   approach   the appropriate court for enforcement of the Settlement Award in accordance with law. 7 15. Aggrieved   by   the   Order   dated   09.03.2015 passed by the Delhi High Court, the appellant ­ STC (Decree   Holder)   filed   the   present   Special   Leave Petition before this Court. 16. During   the   pendency   of   the   Special   Leave Petition, various Orders were passed from time­to­ time directing the respondents to make payments to STC. The details and break up of payments offered and then made by the respondents to the appellant ­   STC   on   different   dates   are   mentioned   in   the Orders dated 19.08.2015, 21.09.2015, 14.12.2015, 05.2.2016,   06.02.2017,   10.04.2017,   31.07.2017, 22.03.2018,   15.05.2018,   13.08.2018,   and 06.09.2018. 17. The  Senior  Counsel for the respondents, Mr. Kapil Sibal submitted that an amount of  Rs.  810 crores   approximately   was   paid   towards   the outstanding   liability   under   the   two   Settlement 8 Agreements   dated   15.11.2011   and   17.05.2012   to the appellant ­ STC. 18. When   the   matter   was   taken   up   for   final hearing,   the   Senior   Counsel   Mr.   Kapil   Sibal appearing for the respondents offered to deposit Rs. 800   crores,   without   prejudice   to   their   right   to prosecute   the   case,   within  4   weeks   to   show  their bona fides to the Court. 19. Accordingly,   on   31.10.2018,   the   following Order was passed: “Mr.   Kapil   Sibal,   learned   senior   counsel appearing for respondent No. 2 in SLP (Civil) No.   14585/2015,   during   the   course   of hearing, states that without prejudice to the right   to   prosecute   the   case,   they   are prepared   to   deposit   the   sum   of   Rs. 800,00,00,000/­   (Rupees   Eight   Hundred Crores) within the period of 4 weeks from today. Let them so deposit. It   is   made   clear   that   non­payment   of   the amount will be viewed seriously.” 20.  That on 29.11.2018, the Senior Counsel for the respondents   brought   Demand   Drafts   for   Rs.810 9 crores  in favour  of  the   Decree Holder  –  STC.  The matter was posted for hearing on 04.12.2018. 21.  When the matter was taken up for hearing on 04.12.2018, the Demand Drafts for Rs. 800 crores were directed to be handed over to the Court Master in a sealed envelope. 22.   With   the   payment   of   Rs.   800   crores   on 04.12.2018,   the   respondents   have   till   date deposited   an   amount   of   Rs.1610   crores approximately in INR in discharge of their liability. 23. As   a   consequence,   the   entire   liability   of   the respondents   till   10.11.2012   would   stand discharged.  24.     The   issue   which   now   only   remains   for resolution is the interest payable from 10.11.2012 onwards. The interest payable on the outstanding amounts was left to be determined by the Court, by the senior counsel appearing for both the parties. 10 25. At this juncture, we consider it appropriate to place   on   record   our   appreciation   of   the   valuable assistance provided by both the senior counsel, Mr. DA Dave and Mr. Kapil Sibal in enabling the parties to   resolve   the   disputes.   The   senior   counsel addressed   the   myriad   legal   issues   which   arose   in the case with clarity, persuasiveness, lucidity and industry.  26. Learned   senior   counsel   for   the   respondents submitted   that   even   though   the   question   with respect to payment of interest pendente lite, and the rate of interest, was not the subject­matter of the original  proceeding, it  was prayed that  this Court may   give   a   quietus   to   the   long   pendency   of   this litigation by passing appropriate orders.  27. Both   the   senior   counsel   prayed   that   this Court, in exercise of its jurisdiction under Articles 136   and   142   of   the   Constitution,   exercise   its extraordinary jurisdiction to determine the amount 11 payable   towards   interest,   and   the   period   within which it should be paid. 28. Having   heard   the   learned   senior   counsel   for the parties, and on perusal of the record, we are of the considered opinion that it is not necessary to decide the various legal issues arising in the case which   were   ably   presented   by   both   the   learned senior   counsel   in   support   of   their   case   on   the question of jurisdiction of the Delhi High Court in entertaining   and   deciding   the   Execution   Petition filed by the appellant. 29. Since   the   parties   have   requested   for termination   of   these   proceedings   finally   in   this appeal   itself,   and   secondly,   the   outstanding   dues have   already   been   cleared   by   the   respondents during   the   pendency   of   this   appeal   though   late leaving   only   a   limited   controversy   alive   regarding payment   of   interest,   we   are   of   the   considered opinion   that   there   is   no   legal   impediment   in 12 deciding   the   issue   of   payment   of   interest   and   its rate   in   this   appeal   finally   to   give   quietus   to   this litigation. 30. Having given our anxious consideration to all the aforementioned factors, we are of the view that the   respondents   are   liable   to   pay   Interest   on   the principal sum of Rs.1610 crores to the appellant at rate of 8% per annum payable from 10.11.2012, i.e. when the entire payment became due. 31. We direct that: (i) The Demand Drafts for Rs. 800 crores (Rupees Eight   Hundred   Crores)   furnished   by   the respondents, be handed over to STC ­ Decree Holder;  (ii) A lump­sum amount of Rs.600 crores (Rupees Six Hundred Crores) worked out on the basis of 8% S.I. per annum (rounded off) be paid by the respondents to the appellant towards full and   final   satisfaction   of   the   amounts   due 13 under   the   Settlement   Agreement   dated 15.11.2011,   and   Further   Settlement Agreement dated 17.05.2012. (iii) The amount of Rs.600 crores be paid by the respondents   to   STC   towards   interest   in   12 weeks from the date of this Order. (iv) Upon   payment   of   the   said   amount   by 28.02.2019, all claims arising out of the two Settlement   Agreements   (supra),   would   stand finally settled, and put a complete closure to all   pending   proceedings   of   any   nature whatsoever, between the parties, wherever filed and/or pending against each other. (v) If,   however,   the   amount   of   Rs.   600   crores awarded   towards   interest   is   not   paid   on   or before   28.02.2019,   it   would   amount   to contempt of the Order passed by this Court, and it would be open to the appellant to take 14 appropriate action against the respondents in accordance with law for non­compliance. 32. In   light   of   the   foregoing   discussion   and   the directions,   the   appeal,   along   with   all   pending applications, stand disposed of. The   contempt petitions are also disposed of accordingly. 

This Appeal under Section 62 of the Insolvency and Bankruptcy Code, 2016 (IBC) is against an interim order dated 18th August 2021 passed by the National Company Law Appellate Tribunal (NCLAT), Principal Bench at New Delhi in Company Appeal (AT) (Insolvency) No. 598 of 2021, filed by the Appellant, whereby the NCLAT issued notice of the Appeal, but did not restrain the Interim Resolution Professional (IRP) from proceeding with Corporate Insolvency Resolution Process (CIRP) of M/s Seya Industries Limited (hereinafter referred to as “Corporate Debtor”). The NCLAT, however, restrained the IRP from 1 constituting a Committee of Creditors (CoC) till the next date of hearing. In the meanwhile, the Appellant and the Respondents were given the opportunity to settle their disputes before the Adjudicating Authority (NCLT) in terms of Section 12A of the IBC read with Rule 11 of the National Company Law Tribunal Rules, 2016 (NCLT Rules). The appeal was directed to be listed for hearing on 13th September 2021. The Appellant is an erstwhile Director of Respondent No. 4, that 2. is the Corporate Debtor. The Corporate Debtor, a company incorporated under the Companies Act, 1956 has been carrying on business, inter alia, of manufacture of benzene based Speciality Chemicals since 1990. It is stated that the Corporate Debtor had invested about Rs.400 Crores in its existing manufacturing facilities and had further invested about Rs.900 Crores in an integrated Greenfield Mega Project for Speciality Chemicals. 3. According to the Appellant, the Corporate Debtor is the source of livelihood for about 150 workmen, 40 unskilled workers and 75 employees on its payroll and is engaged with more than 200 Customers/Vendors. It is claimed that the Corporate Debtor has a net worth of Rs. 972 Crores and fixed assets worth more than Rs.1500 Crores. 4. In order to expand its chemical manufacturing plant at Tarapur, Palghar (Maharashtra), the Corporate Debtor raised capital and the Respondent No.1 - M/s Beacon Trusteeship Limited (hereinafter referred to as “Beacon Trusteeship”) committed to invest Rs. 100 2 Crores in the said integrated Greenfield Mega Project, in the form of Rs.20 Crores, towards Compulsorily Convertible Preference Shares (CCPS) and Rs. 80 Crores, by way of Non-Convertible Debentures (NCDs). Thereafter the Appellant, the Corporate Debtor and Respondent-Beacon Trusteeship executed a Debenture Trust Deed (DTD), inter-alia, recording the terms and conditions of the issue of said NCDs. The Respondent No. 1 was appointed, the Debenture Trustee as recorded in the DTD. The DTD laid down the obligations of the Corporate Debtor towards the NCDs. 5. On or about 11th March 2019, Beacon Trusteeship released a sum of Rs.72,00,00,000/- (INR Seventy Two Crores) toward subscriptions of 360 Series A debentures and 360 Series B Debentures ("First tranche Debentures"). The aforesaid amount was to be invested in capacity expansion of the company and hence not available as cashflow. The service of interest for the first tranche had to be met out of the second tranche of Rs. 8 Crores to be invested by the Beacon Trusteeship which would have created the cash flow for the same and the remaining amount was to be invested for Capex investment. Beacon Trusteeship, however, defaulted in making payment of the second tranche of Rs. 8 Crores. In addition to the DTD dated 8th March 2019, the parties entered 6. into a Supplemental Deed dated 14th March 2019 revising certain terms set out in DTD including the timelines and schedule for the Interest Payment Dates. 3 7. On 31st May 2019, the Corporate Debtor sent an email to the Respondent Nos. 1 to 3, requesting payment of the second tranche of Rs.8 Crores in terms of the DTD. The Corporate Debtor also issued notice to the Respondent Nos.1 to 3 to make payment of second tranche of Rs. 8 Crores. 8. On 12th September 2019, the Corporate Debtor took recourse to Arbitration Proceedings against the other Respondents. Beacon Trusteeship issued a notice to the Corporate Debtor regarding non- payment of interest amount of Rs.2,18,95,890.41/-. Beacon Trusteeship also issued an Enforcement Notice accelerating payment of the full investment amount i.e. Rs.77,94,92,513/- as due on 17th October 2019 on account of non-payment of Rs.2,18,95,890.41/- being interest coupon amount. On 18th October 2019, the Respondent Nos. 1 to 3 invoked 9. Clause 6.1 of the share pledge agreement and transferred 26.60 lakh shares worth Rs 91.78 Crores into the DEMAT Account(s) of the Respondents. 10. Between 18th-20th October 2019, the Corporate Debtor initiated Arbitration Proceedings before the High Court of Bombay. While the Arbitral Proceedings, to which the Respondent Nos. 1 to 3 had themselves agreed and consented to, were pending, they filed an application under Section 7 of the IBC before the National Company Law Tribunal (NCLT), Mumbai Bench. 4 11. On 15th January 2020, the Corporate Debtor filed its statement of claim seeking an award aggregating to Rs.848,75,30,000/- for losses and damages suffered by it. 12. On 26th February 2020, the Respondents filed statement of defence and counter claim seeking an award for payment of its claim amounting to Rs.73,56,59,238/-. 13. On 24th March 2021, the Arbitrator passed an interim award in favour of Beacon Trusteeship and other Respondents and directed the Corporate Debtor to make payment of Rs.72,06,99,244/- along with interest. 14. On 21st April 2021, being aggrieved by the order of the Arbitrator, the Appellant and Corporate Debtor preferred an arbitration petition under Section 34 of the Arbitration and Conciliation Act, 1996 before the High Court of Bombay which is still pending. The NCLT, Mumbai Bench heard the matter and reserved its 15. order on 13th May 2021. On 1st July 2021, the Corporate Debtor and the Respondents Nos. 1 to 3 filed a joint application before the NCLT, Mumbai Bench requesting to defer the order as the parties were in the process of arriving at a settlement and sought time till 10th July 2021. 16. On 12th July 2021, the Corporate Debtor and the Respondents Nos. 1 to 3 again filed a joint application before the NCLT, Mumbai Bench seeking further time till 23rd July 2021 for arriving at a settlement. Thereafter, on 26th July 2021, they again sought time for 5 settlement till 12th August 2021. 17. On 3rd August 2021, the NCLT, Mumbai Bench, rejected the request of the parties for further deferment of orders for arriving at a settlement and admitted and allowed the application under Section 7 of the IBC preferred by Respondent Nos. 1 to 3 against Corporate Debtor. Being aggrieved by the order dated 3rd August 2021 passed by 18. the NCLT, Mumbai Bench, admitting and allowing application for initiating CIRP against the Corporate Debtor, the Appellant who is Director of the Corporate Debtor filed an appeal being Company Appeal (AT)(Insolvency) No. 598 of 2022 in the NCLAT, New Delhi. 19. On 8th August 2021, the parties had amicably settled their disputes and entered into a formal settlement, a copy of which is annexed to the paper book as annexure A-25. 20. On 10th August 2021, the NCLAT considering the settlement arrived at between the parties, granted interim stay of publication under Section 13 of the IBC and further gave liberty to the parties to adopt procedure under Section 12A of IBC. 21. On 12th August 2021, the parties with the consent of the IRP filed an application under Section 12A of the IBC before the NCLT, Mumbai. However, the same has not been listed till date. 6 22. On 18th August 2021, the NCLAT stayed the formation of CoC, but declined to exercise its power under Rule 11 of the NCLAT Rules to take on record the settlement and dispose of the matter. Further, the NCLAT permitted the IRP to issue publication and also handover all assets and proceed with the CIRP even though the matter had been settled between the parties. Being dissatisfied by the order dated 18th August 2021 of the NCLAT, the Appellant has preferred the present Civil Appeal. Section 12A of the IBC enables the Adjudicating Authority to 23. allow the withdrawal of an application admitted under Section 7 or Section 9 or Section 10, on an application made by the applicant with the approval of 90% voting shares of the Committee of Creditors in such a manner as may be specified. Section 12A of the IBC clearly permits withdrawal of an 24. application under Section 7 of the IBC that has been admitted on an application made by the applicant. The question of approval of the Committee of Creditors by the requisite percentage of votes, can only arise after the Committee of Creditors is constituted. Before the Committee of Creditors is constituted, there is, in our view, no bar to withdrawal by the applicant of an application admitted under Section 7 of the IBC. 25. In exercise of power conferred by Section 469 of the Companies Act, 2013, the Central Government has made the National Company Law Tribunal Rules, 2016, hereinafter, referred to as the “NCLT Rules”. 7 Rule 11 of the NCLT Rules reads as :- “11. Inherent Powers.- Nothing in these rules shall be deemed to limit or otherwise affect the inherent powers of the Tribunal to make such orders as may be necessary for meeting the ends of justice or to prevent abuse of the process of the Tribunal.” 26. As stated in its statement of objects and reasons, the object of the IBC is to consolidate and amend the laws relating to re- organisation and insolvency resolution of corporate persons, partnership firms and individuals in a time bound manner for maximisation of value of assets of such persons, to promote entrepreneurship, availability of credit and balance of interests of all stakeholders including alteration in the order of priority of payment of Government dues and to establish an Insolvency and Bankruptcy Board of India and matters connected therewith or thereto. 27. The statement says that an effective legal framework for timely resolution of insolvency and bankruptcy would support development of credit markets, encourage entrepreneurship, improve business and facilitate more investments leading to higher economic growth and development. 28. A reading of the statement of objects and reasons with the statutory Rule 11 of the NCLT Rules enables the NCLT to pass orders for the ends of justice including order permitting an applicant for CIRP to withdraw its application and to enable a corporate body to carry on business with ease, free of any impediment. 8 29. Considering the investments made by the Corporate Debtor and considering the number of people dependant on the Corporate Debtor for their survival and livelihood, there is no reason why the applicant for the CIRP, should not be allowed to withdraw its application once its disputes have been settled. 30. The settlement cannot be stifled before the constitution of the Committee of Creditors in anticipation of claims against the Corporate Debtor from third persons. The withdrawal of an application for CIRP by the applicant would not prevent any other financial creditor from taking recourse to a proceeding under IBC. The urgency to abide by the timelines for completion of the resolution process is not a reason to stifle the settlement. 31. Mr. Mukul Rohtagi, learned Senior Counsel appearing on behalf of the Appellant drew our attention to an order dated 25th August 2021, passed by a Bench of coordinate strength comprising <cite>S. Abdul Nazeer and Krishna Murari, J.J. in Civil Appeal No. 4993 of 2021</cite>, the relevant part whereof is extracted hereinbelow: “(3) We have heard learned counsel for the parties. It is not in dispute that CoC has not been constituted so far. This Court in <cite>Swiss Ribbons Private Limited and Anr. v. Union of India and others- (2019) 4 SCC 17</cite> has held that at any stage, before a Committee of Creditors is constituted, a party can approach National Company Law Tribunal (NCLT) directly and that the Tribunal may, in exercise of its inherent powers under Rule 11 of NCLT Rules, allow or disallow an application for withdrawal or settlement. It was held thus: 82. It is clear that once the Code gets triggered by admission of a creditor's petition under Sections 7 to 9, the proceeding that is before the adjudicating 9 authority, being a collective proceeding, is a proceeding in rem. Being a proceeding in rem, it is necessary that the body which is to oversee the resolution process must be consulted before any individual corporate debtor is allowed to settle its claim. A question arises as to what is to happen before a Committee of Creditors is constituted (as per the timelines that are specified, a Committee of Creditors can be appointed at any time within 30 days from the date of appointment of the interim resolution professional). We make it clear that at any stage where the Committee of Creditors is not yet constituted, a party can approach NCLT directly, which Tribunal may, in exercise of its inherent powers under Rule 11 of NCLT Rules, 2016, allow or disallow an application for withdrawal or settlement. This will be decided after hearing all the parties concerned and considering all relevant factors on the facts of each case.” (emphasis supplied) (4) In the instant case, as noticed earlier, the applicant- respondent no.1 had made an application before the NCLT, Mumbai Bench, under Rule 11 of the NCLT Rules for withdrawal of company petition filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 (IBC) on the ground that the matter has been settled between the Corporate debtor and the applicant-respondent no.1. (5) Having heard learned counsel for the parties and having regard to the facts and circumstances of the case, we are of the view that the applicant-respondent no.1 was justified in filing the application under Rule 11 of the NCLT Rules for withdrawal of the company petition on the ground that the matter has been settled between the parties.” 32. The application for settlement under Section 12A of the IBC is pending before the Adjudicating Authority (NCLT). The NCLAT has stayed the constitution of the Committee of Creditors. The order impugned is only an interim order which does not call for interference. In an appeal under Section 62 of the IBC, there is no question of law 10 which requires determination by this Court. The appeal is, accordingly, dismissed. The NCLT is directed to take up the settlement application and decide the same in the light of the observations made above.

2. This appeal questions the correctness of the judgment and order dated 09.12.2020 passed by the High Court of Rajasthan, Bench at Jaipur  in S.B. Criminal Misc. (Petition) No. 591 of 2020 whereby the High Court dismissed the petition under Section 482 of   the  Code of Criminal Procedure,19731  for   quashing   of   First Information Report2  No. 45 of 2005 dated 23.05.2005 registered 1 In short “CrPC” 2 In short “FIR” 1 with Police Station Phulera, District Jaipur under Sections 363 and 366 IPC.   3. Relevant   facts   giving   rise   to   this   appeal   are   that   one Prahalad  Dan  gave  a written complaint stating  that his  minor daughter   had   been   abducted   by   the   appellant   no.1   on 22.05.2005 at about 2.30PM.  On the said complaint FIR No. 45 of 2005 was registered at Police Station Phulera, District Jaipur under Sections 363 and 366 IPC.  Investigation was commenced but   the   whereabouts   of   the   missing   girl   could   not   be   traced. Despite   best   efforts   when   the   abducted   girl   and   the   accused could not be traced, the investigating officer, after recording the statements   of   the   complainant   and   the   others,   submitted   a chargesheet   against   the   appellant   no.1   under   the   aforesaid Sections   and,   further,   requested   the   court   to   initiate   the proceedings under Section 299 CrPC.    4.   The   investigating   officer   also  submitted   chargesheet   against the father of the appellant, namely, Banna Lal under Sections 363, 366 and 120B IPC.   On the basis of the said chargesheet Banna Lal was put to trial and Regular Criminal Case No. 23 of 2010 was registered.  The Additional District and Sessions Judge, 2 Sambhar Lake, District Jaipur vide judgement and order dated 03.09.2011 came to the conclusion that the charges could not be proved against the accused Banna Lal of being involved in any manner   in   the   alleged   abduction   of   the   daughter   of   the complainant, but rather he himself made efforts for searching his son and the abductee.  Accordingly, Banna Lal was acquitted of all the charges.   5. In   the   year   2020,   the   appellant   along   with   the   abductee Seema Parewa filed a petition under Section 482 CrPC before the Rajasthan   High   Court   which   was   registered   as   S.B.   Criminal Misc. Petition No. 591 of 2020 praying for quashing of the FIR No. 45 of 2005 and all proceedings arising therefrom.  In the said petition   it   was   stated   that   the   appellant   and   the   abductee (appellant   No.   1   and   2   respectively)   were   well   known   to   each other and were into deep love affair, which relationship was not acceptable   to   the   father   of   the   abductee.     Under   compelling circumstances,   both   of   them   parted   from   their   families   in   the year 2005 and later got married on 25.12.2006.  It was, further, stated that report was submitted under Section 173(2) CrPC and a   request   for   invoking   Section   299   CrPC   was   made   by   the 3 investigating officer. The matter is still pending before the Trial Court against the appellant and coercive steps were being taken. It   was,   further,   stated   that   almost   15   years   have   passed,   the appellant and the abductee were living happily married and had also been blessed with a boy on 27.02.2014.  It is further stated that the abductee was never victimized, abducted nor kidnapped but on her own volition left her parental home on account of the unpleasant and disturbing circumstances created by her father. It is also stated that the abductee was 17 years of age at the time when   she   left   her   home   on   her   own   volition   and   that   the appellant had no role to play in her parting with her family. 6. The High Court although records all such facts, appears to have been swayed with the fact that the abductee was a minor at the   time   when   she   left   her   home   and   that   the   appellant   had evaded   the   investigation   and   had   been   successful   in   keeping away from the process of law for several years.  The High Court further   proceeded   on   the   assumption   that   the   appellant   had actually   kidnapped/abducted   the   minor   daughter   of   the complainant. 4 7. Before this Court, also the abductee has joined the accused as appellant No.2.  Once again similar stand has been taken as was taken before the High Court.  Both the appellants have filed separate affidavits.  Appellant No.2 has specifically stated before the High Court as also before this Court that she had left her parental   home   on   her   own   free   volition.     The   appellants   are married   since   December   2006   and   have   been   living   happily. They have also been blessed with a son in the year 2014 who would now be 8 years old.  No fruitful purpose would be served by   relegating   the   matter   for   conducting   the   trial   as   the   same would not be conducive for either of the appellants.  It would be a futile exercise.  Kidnapping would necessarily involve enticing or taking away any minor under eighteen years of age if a female for the   offence   under   Section   363   IPC.     In   the   present   case,   the abductee had clearly stated that she was neither taken away nor induced   and   that  she   had   left  her   home   of   her  own  free   will. Section   366   IPC   would   come   into   play   only   where   there   is   a forceful compulsion of marriage, by kidnapping or by inducing a woman.     This   offence   also   would   not   be   made   out   once   the appellant no. 2 the abductee has clearly stated that she was in love   with   the   appellant   no.1   and   that   she   left   her   home   on 5 account of the disturbing circumstances at her parental home as the said relationship was not acceptable to her father and that she   married   appellant   no.1   on   her   own   free   will   without   any influence being exercised by appellant no.1. 8. Considering   the   overall   facts   and   circumstances   of   this case, the ends of justice would be best secured by quashing the FIR   and   all   consequential   proceedings   that   arise   therefrom. Accordingly, the appeal is allowed.  The impugned judgement and order   dated   09.12.2020   of   the   High  Court  of   Rajasthan  is   set aside and the entire proceedings arising out of the FIR No. 45 of 2005   dated   23.05.2005   registered   with   Police   Station   Phulera, District   Jaipur   under   Sections   363   and   366   IPC   and   all consequential proceedings are hereby quashed. 

Permission to file the intervention application is granted . 2. Application for intervention stands allowed. 1 3. We have heard learned counsel appearing on behalf of the applicant. 4. By means of this Miscellaneous Application, the applicant seeks a clarification of the order dated 03.08.2022 passed by this Court in Criminal Appeal No. 1256 of 2022. 5. The said criminal appeal was directed against an order dated 12.10.2018 passed by Madras High Court allowing the petition under Section 482 filed by the respondent therein with a direction to hand over all the case filed and material to the Central Bureau of Investigation to conduct a preliminary enquiry against the appellant therein and other co-accused. This Court vide final judgment and order dated 03.08.2022 allowed the appeal and remitted the matter back to the High Court to consider the same afresh and pass appropriate orders in accordance with law. 6. The applicant by means of this application alleging massive fraud by one IRB Expressway Private Limited apprehending connivance with unknown officials of State of Maharashtra /MSRDC/MPEL who, according to applicant, may have conspired to give relief of reduction in contractual payment to the 2 Government undertaking by more than Rs.70 crores on frivolous concocted grounds. 7. Apprehending that the order dated 03.08.2022 passed by this Court may come in the way of applicant who intends to seek the investigation in the matter through CBI and in abundant caution the application has been filed seeking clarification of the judgment dated 03.08.2022 8. A bare perusal of the averments made in the application seeking clarification goes to show that on having come to know that M/S. IRB Expressway Private Ltd. (IRB) which is operating in connivance with the officials of the State of Maharashtra has got a relief of about Rs.70 crores by falsely claiming exemption due to covid. The applicant had issued a notice dated 06.03.2023 to IRB giving them an opportunity to disclose the defense prior to initiating legal action which was duly replied by the said company denying the allegations with the explanation and supporting correspondence with officials exchanged in this regard which the applicant has himself brought on record annexing the said documents to the application. 9. Learned counsel for the applicant submits that the order dated 03.08.2022 passed by this Court setting aside directions of the High Court for preliminary 3 enquiry by CBI, may come in his way to seek CBI investigation into the complaints and allegations and, therefore, the order needs to be clarified. 10. We are really surprised at the manner and the reasons in which this application has been made. A perusal of Annexure-3, the response of IRB, in reply to the notice issued by the applicant itself goes to show that reduction in payment of premium was allowed by the authorities because the Government of India had ordered complete closure of all Toll Plazas including the one in issue w.e.f. 26.03.2020 to 19.04.2020 due to covid. 11. Office memorandum dated 13.05.2020 issued by the Government in this regard is also a part of the documents annexed by the applicant himself in the application invoking the force majeure clause in the agreement between the parties. In such peculiar factual matrix of the contractual matter between a different set of parties, in our opinion, the complaint, if any made by the applicant has to be considered on its own merits and the judgment and order dated 03.08.2022 passed by this court, in a totally unconnected matter, between different parties, having no nexus with alleged complaint which the applicant proposes to make, will have no bearing on the same and thus the order dated 03.08.2022 does not calls for any clarification or modification at the behest of the present applicant. 4 12. Further, in any view of the matter, the applicant has no locus to seek clarification/modification of an order passed in a totally unconnected matter. 13. The application is totally misconceived and, accordingly, stands dismissed.

Appeal from an order of the High Court of Patna dated 9th September, 1948, (Agarwala C.J. and Meredith J.) in M.J.C. No. 5 of 1948. The appeal was originally filed as Federal Court Appeal No. 71 of 1948 on a certificate granted by the Patna High Court under cl. 31 of the Letters Patent of that High Court that the case was a fit one for appeal to the Federal Court. H.P. Sinha (S.C. Sinha, with him) for the appellant. S.K. Mitra (S. L. Chibber, with him) for the respondent. 1950. November 30. The judgment of the Court was deliv- ered by FAzL ALl J. 800 FAZL ALI J. --This is an appeal from an order of the High Court of Judicature at Patna dated the 9th September, 1948, declining to call upon the board of Revenue to state a case under section 21 (3) of the Bihar Sales Tax Act, 1944 (Act VI of 1944), with reference to an assessment made under that Act. The Bihar Sales Tax Act was passed in 1944, and section 4 of the Act provides that "every dealer whose gross turn- over during the year immediately preceding the commencement of the Act exceeded Rs. 5,000 shall be liable to pay tax under the Act on sales effected after the date so notified." It is not disputed that, having regard to the definitions of dealer, goods and sale under the Act, the appellant, who has been doing contract work on a fairly extensive scale for the Central Public Works Department and the East Indian Railway, comes within the category of a dealer mentioned in section 4. Section 7 of the Act provides that "no dealer shall, while being liable under section 4 to pay tax under the Act, carry on business as a dealer unless he has been registered under the Act and possesses a registration certificate". In pursuance of this provision, the appellant filed an applica- tion for registration on the 19th December, 1944, and a certificate of registration was issued to him on the 21st December, 1944. On the 8th October, 1945, the Sales Tax Officer issued a notice to the appellant asking him to produce his accounts on 10th November, 1945, and to show cause why in addition to the tax to be finally assessed on him a penalty not exceeding one and a half times the amount should not be imposed on him under section 10 (5) of the Act. Section 10 (5), under which the notice purported to have been issued, runs thus:-- "If upon information which has come into his posses- sion, the Commissioner is satisfied that any dealer has been liable to pay tax under this Act in respect of any period and has nevertheless wilfully failed to apply for registra- tion, the Commissioner shall, alter giving the dealer a reasonable opportunity of being heard, assess, to the best of his judgment, the amount of tax, if any, due from the dealer in respect of such 801 period and all subsequent periods and the Commissioner may direct that the dealer shall pay, ’by way of, penalty, in addition to the amount so assessed, a sum not exceeding one and a half times that amount." The appellant appeared before the Sales Tax Officer in response to this notice, but obtained several adjournments till 16th March, 1046, and ultimately failed to appear. Thereupon, he was assessed by the Sales Tax Officer, accord- ing to the best of his judgment, and was ordered to pay Rs. 4,526-13-0 as tax and a penalty amounting to one and a half times the amount assessed, under section 10 (5) of the Act. The appellant appealed to the Commissioner against the assessment and the penalty levied upon him, but his appeal was dismissed on the 6th June, 1946. He then filed a peti- tion for revision to the Board of Revenue, against the order of the Commissioner, but it was dismissed on the 28th May, 1947. He thereupon moved the Board of Revenue to refer to the High Court certain questions of law arising out of is order of the 28th May, but Mr. N. Baksi, a Member of the Board, by his order of the 4th December, 1947, rejected the petition with the following observations :- "No case for review of my predecessor’s order made out. No reference necessary." Section 21 of the Act provides that if the Board of Revenue refuses to make a reference to the High Court, the applicant may apply to the High Court against such refusal, and the High Court, if it is not satisfied that such refusal was justified, may require the Board of Revenue to state a case and refer it to the High Court. The section also provides that "the High Court upon the hearing of any such case shall decide the question of law raised thereby, and shall deliver its judgment thereon containing the grounds on which such decision is founded, and shall send to the Board of Revenue a copy of such judg- ment under the seal of the Court ......... and the Board shall dispose of the case accordingly." In accordance with this section, the appellant made an application to the High Court praying that the Board of Revenue may be called upon to state a case and refer 802 it to the High Court. Dealing with this application, the High Court pointed out that the Member of the Board had not been asked to review his predecessor’s order but only to state a case, and gave the following directions :-- "The ease must, therefore, go back to the Board of Revenue for a case to be stated or for a proper ,order rejecting the application to be passed." The Board then reheard the matter and rejected the application of the appellant and refused to state a case and refer it to the High Court. The appellant thereafter made an application to the High Court for requiring the Board of Revenue to state a case, but this application was summarily rejected. He then applied to the High Court for leave to appeal to the Federal Court, which the High Court granted, following the decision of a Full Bench of the Lahore High Court in <cite>Feroze Shah Kaka Khd v. Income-tax Commissioner, punjab and N.W.F.P., Lahore The High Court</cite> pointed out in the order granting leave that in the appeal that was taken to the Privy Council in the Lahore case, an objection had been raised as to the competency of the appeal, but the Privy Council, while dismissing the appeal on the merits, had made the following observation:-" The objection is a serious one. Admittedly such an appeal as the present is not authorized by the Income-tax Act itself. If open at all, it must be justified under clause "9, Letters Patent of the Lahore High Court, as being an appeal from a final judgment, decree or order made in the exercise of original jurisdiction by a Division Bench of the High Court. And this present appeal was held by the Full Court to be so justified. Before the Board the question was not fully argued, and their Lordships accordingly refrain from expressing any opinion whatever upon it" (2). The High Court in granting leave to the appellant seems to have been influenced mainly by the fact that the view of the Lahore High Court had not been held by the Privy Council to be wrong. (1) A.I.R. 1981 Lah. 138. (2) A.I.R. 1933 P. C. 198. 803 At the commencement of the hearing of the appeal in this Court, a preliminary objection was raised by the learned counsel for the respondent that this appeals was not compe- tent, and, on hearing both the parties, we are of the opin- ion that the objection is wellfounded. In <cite>Sri Mahanth Harihar Gir v. Commissioner of Income- tax, Bihar and Orissa</cite> (1) it was held by a special Bench of the Patna High Court that no appeal lay to His Majesty in Council under clause 31 of the Letters Patent of the Patna High Court, from an order of the High Court dismissing an application under section 66 (3) of the Income-tax Act, (a provision similar to section 21 of the Act before us) to direct the Commissioner of Income-tax to state a case. In that case, the whole law on the subject has been clearly and exhaustively dealt with, and it has been pointed out that the view taken by the Full Bench of the Lahore High Court in the case cited by the appellant was not supported by sever- al other High Courts and that the Privy Council also, when the matter came before it, refrained from expressing any opinion as to its correctness. In our opinion, the view expressed in the Patna case is correct. Clause 31 of the Letters Patent of the Patna High Court, on the strength of which the appellant resists the prelimi- nary objection raised by the respondent, runs thus :-- "And We do further ordain that any person or persons may appeal-to Us, Our heirs and successors, in Our or Their Privy Council, in any matter not being of criminal juris- diction, from any final judgment, decree, or order of the said High Court of Judicature at Patna, made on appeal and from any final judgment, decree on order made in the exercise of original jurisdiction by Judges of the said High Court or of any Division Court, from which an appeal does not lie to the said High Court under the provisions contained in the 10th clause of these (1) A.I.R. 1941 Prat. 225. 804 presents: provided, in either case, that the sum or matter at issue is of the amount or value of not less than ten thousand rupees, or that such judgment,decree or order involves, directly or indirectly, some claim, demand or question to or respecting property amounting to or of the value of not less than ten thousand rupees; or from any other final judgment, aecree or order made either on appeal or otherwise as aforesaid, when the said High Court declares that the case is a fit one for appeal to Us ...... " In order to attract the provisions of this clause, it is necessary to show, firstly, that the order under appeal is a final order; and secondly, that it was passed in the exer- cise of the original or appellate jurisdiction of the High Court. The second requirement clearly follows from the concluding part of the clause. It seems to us that the order appealed against in this case, cannot be regarded as a final order, because it does not of its own force bind or affect the rights of the parties. All that the High Court is required to do under section 21 of the Bihar Sales Tax Act is to decide the question of law raised and send a copy of its judgment to the Board of Revenue. The Board of Revenue then has to dispose of the case in the light of the judgment of the High Court. It is true that the Board’s order is based on what is stated by the High Court to be the correct legal position, but the fact remains that the order of the High Court standing by itself does not affect the rights of the parties, and the final order in the matter is the order which is passed ultimately by the Board of Revenue. This question has been fully dealt with in <cite>Tata Iron and Steel Company v. Chief Revenue Authority, Bombay(1)</cite>, where Lord Atkinson pointed out that the order made by the High Court was merely advisory and quoted the following observations of Lord Esher in In re Knight and the Tabernacle Permanent Building Society(2): "In the case of Ex parte County Council of Kent, where a statute provided that a case might be stated (1) [1892] Q.B. 613 at 617. 805 for the decision of the Court it was held that though the language might prima facie import that there has to be the equivalent of a judgment or order, yet when the context was looked at it appeared that the jurisdiction of the Court appealed to was only consultative, and that there was noth- ing which amounted to a judgment or order." It cannot also be held that the order was passed by the High Court in this case in the exercise of either original or appellate jurisdiction. It is not contended that the matter arose in the exercise of the appellate jurisdiction of the High Court, because there was no appeal before it. Nor can the matter, properly speaking, be said to have arisen in the exercise of the original jurisdiction of the High Court, as was held by the Judges of the Lahore High Court in the case to which reference was made, because the proceeding did not commence in the High Court as all origi- nal suits and proceedings should commence. But the High Court acquired jurisdiction to deal with the case by virtue of an express provision of the Bihar Sales Tax Act. The crux of the matter therefore is that the jurisdiction of the High Court was only consultative and was neither original nor appellate. In this view, the appeal must be dismissed, though on hearing the parties, it appeared to us that the salestax authorities including the Commissioner and the Board of Revenue were in error in imposing a penalty upon the appel- lant under section 10 15) of the Act which had no applica- tion to his case, inasmuch as he had been registered as required by section 7 of the Act. In the circumstances, while dismissing the appeal, we make no order as to costs. Appeal dismissed.

This Special Leave Petition filed by the State of Odisha is against a final judgment and order dated 2nd November, 2020 passed by the High Court of Orissa at Cuttack dismissing an application for leave to appeal being CRLLP No.14 of 2020 filed by the Petitioner State, against a judgment dated 14th January, 2020 passed by the Sessions Judge, Bhadrak in S.T. Case No.182/392 of 2014, acquitting the Respondents from charges under Sections 302/201 read with Section 34 of the Indian Penal Code (IPC). 2. Learned Counsel appearing on behalf of the Petitioner State forcefully contended that the High Court committed gross error in dismissing the application for leave to appeal filed by the Petitioner 1 State on the ground of delay of 41 days, even though, there were serious charges against the Accused Respondents, including charges of murder under Section 302 of the IPC. 3. It is true that the appeal has, by the impugned judgment and order dated 2nd November 2020, been dismissed on the ground of delay of only 41 days in filing the CRLLP. 4. In a criminal case involving the serious offence of murder, the Courts do not ordinarily dismiss an appeal against a judgment and order of the Trial Court, whether of conviction or of acquittal, on the sole ground of some delay. This is to prevent miscarriage of justice. 5. However, in this case the application of the Petitioner State, for leave to appeal against the judgment and order of acquittal of the Respondent Accused, has been rejected on the ground of delay, but after considering the merits of application for leave to appeal. 6. We have considered the contentions of the State of Odisha being the petitioner before us. As per an FIR lodged with the police by one Gitanjali Tadu, hereinafter referred to as the “Complainant”, her husband Bijay Kumar Tadu, hereinafter referred to as the “deceased”, had been working in the Home Guard, Chandabali and deputed at Chandabali Police Station. 2 7. According to the Complainant, the deceased used to move around with the first accused, Banabihari Mohapatra, who had an electric sales and repairing shop styled “Raja Electricals” at the Ferry Ghat area near the Chandabali bus stand. In the FIR, it is alleged that the first accused came to the 8. residence of the deceased at around 7.30 a.m. on 23rd June, 2014 and told the Complainant that the deceased had been lying motionless and still, not responding to calls. Later his younger son Luja alias Smruti Ranjan Mohapatra being the second Respondent also came and informed the complainant that the deceased was lying motionless. On hearing this, the Complainant along with her family members 9. went to the Ferry Ghat near the Chandabali Bus Stand and found her husband lying dead inside a room which was locked, with a swollen belly and a deep burn injury on his right foot which was apparently caused by electric shock. The body of the deceased appeared black and blood was oozing out from the mouth and nostril of the deceased. In the FIR, the complainant has alleged that on 22nd June, 2016, 10. the deceased had left the house to go to the house of a relative. He had been wearing a gold chain on his neck and two gold rings on his fingers, and had been carrying Rs.800 for purchase of a new pair of pants and shirt and Rs.5,000/- for purchase of articles for a marriage. 3 11. On making enquiries the complainant learnt that the deceased had not visited the house of the relative on that day. The complainant has alleged that the Accused No.1 Banabihari Mohapatra, his son Luja alias Smruti Ranjan Mohapatra, being the Accused No.2, and other accomplices committed murder of her husband by applying electric shock to him after administering some poisonous substances to him. The Sessions Judge Bhadrak framed charges against the Accused 12. Respondents Banabihari Mohapatra and Luja @ Smruti Ranjan Mohapatra alleging that, together they had intentionally caused the death of the deceased, thereby committing murder and had caused disappearance of evidence and thus been guilty of offences under Sections 302/201 read with Section 34 of the IPC. 13. We have carefully gone through the judgment of the Sessions Judge, Bhadrak, holding that the prosecution had failed to prove the charges against the Accused Respondents or either of them under Section 302, or Section 201 read with Section 34 of the IPC, and acquitting them under Section 235(1) of the Cr.P.C. 14. The prosecution appears to have examined 9 witnesses. There are no eye witnesses to the incident. The deceased had apparently died in a room held by the Accused Respondent No.1. The Accused Respondents did not abscond. The Accused Respondents themselves informed the complainant that the deceased was lying still and 4 motionless, not responding to calls. 15. The post mortem Report of the deceased reveals that the cause of death was electric shock, suffered by the deceased within 24 hours from the time of examination. On post mortem examination, the Doctor found food particles including meat in the stomach of the deceased, and also detected smell of alcohol. The post mortem doctor opined that the deceased was intoxicated with alcohol and the death was either accidental, or homicidal, but not suicidal. There is no conclusive evidence that the death was homicidal. The complaint lodged by the complainant is apparently based on 16. Since the Accused Respondents had informed the suspicion. complainant that the deceased was lying still and motionless, not responding to calls and the body of the deceased was found at the premises of the Accused Respondent No.1, the complainant has assumed that the Accused Respondents killed the deceased. 17. In evidence, the complainant said that the Accused Respondent No.1, Banabihari, had taken a loan of Rs.20,000/- from the deceased which he had not repaid even though the deceased had asked him to repay the amount. Significantly, there is no whisper in the FIR, of any loan taken by the Accused Respondent No.1 from the deceased. The reference to the alleged loan appears to be an afterthought, in an attempt to insinuate a motive for killing the deceased. 5 18. The mere fact that the deceased was lying dead at a room held by the the Accused Respondent No.1 and that the Accused Respondents had informed the complainant that the deceased had been lying motionless and still and not responding to shouts and calls, does not establish that the Accused Respondents murdered the deceased. At the cost of repetition it is reiterated that the post mortem report suggests that the death could have been accidental. 19. We have perused the evidence of the nine Prosecution Witnesses, namely, the first Prosecution Witness Dhanjaya Tadu, younger brother of the deceased, the second Prosecution Witness Gitanjali Tadu, wife of the deceased, the third Prosecution Witness, Ajay Sahoo, a Shop Keeper at the locality where dead body of the deceased was found, the fourth Prosecution Witness, Smt. Bijayalaxmi Tadu, sister of the deceased, the fifth Prosecution Witness, Bailochan Bej, a Barber by profession who knew the complainant and the deceased as also the accused persons who resided in the Chandabali Police Station area, the sixth Prosecution Witness, Manmohan Sutar, an auto driver, the seventh Prosecution Witness, Aswini Kumar Nayak, a cultivator residing at Nayahat in the Chandabali Police Station area of Bhadrak, the 8th Prosecution Witness, Dr. Bhisma Parida, being the Doctor who conducted the autopsy/ post mortem examination of the deceased and the ninth Prosecution Witness Smt. Kumari Behera, Sub Inspector of Police, who was the Investigating Officer. 6 20. Of the nine Prosecution Witnesses, three witnesses namely, the third Prosecution Witness, Ajay Sahoo, the fifth Prosecution Witness, Bailochan Bej and the seventh Prosecution Witness, Durga Charan Nayak were declared hostile by the Prosecution. 21. The third Prosecution Witness said that he had only seen the police shifting the dead body of the deceased and knew nothing more about the case. Nothing has emerged from his cross-examination by the Public Prosecutor. In his cross-examination by the defence, he said there was no electric connection in the house from which the body of the deceased was brought out. He even said that the Accused Respondents did not own any shop dealing with electric appliances. No credence can be given to this witness. The fifth Prosecution Witness, Bailochan Bej, denied knowledge of 22. the case. He said that the police had not examined him, nor recorded any statement made by him. In cross-examination by the prosecution, he only said that he had a saloon at Chandabali Police Station, Bhadrak. He categorically denied having made the statements attributed to him by the police. The seventh Prosecution Witness, Durga Charan Nayak only said 23. that he had seen the body of the deceased in the rented place near the Chandabali bus stand with bleeding injury on his right leg and blood oozing from his mouth and nostrils. He said he did not know how the 7 deceased suffered the injury or died. Nothing significant has emerged from his cross-examination by the Public Prosecutor. The sixth Prosecution Witness, Manmohan Sutar deposed that he 24. knew the informant, the deceased as also the Accused Respondents. In a nutshell, he only confirmed that the dead body was in the shop of the Accused Respondents in Home Guard uniform. Inquest of the body was conducted in his presence. He identified his signature in the Inquest Report. He also said he had noticed a bleeding injury in the right foot of the deceased and blood oozing from the mouth and nostrils. 25. All the three witnesses related to the deceased, that is the second Prosecution Witness, being the wife of the deceased, the first Prosecution Witness, being the younger brother of the deceased and the fourth Prosecution Witness, being the sister of the deceased have more or less reiterated what has been stated in the FIR with embellishments. There are, however, apparent inconsistencies, inaccuracies and inherent improbabilities in the statements of these witnesses. These three witnesses deposed that they suspected that the 26. accused Respondents had killed the deceased as the deceased was asking the Accused Respondents to repay Rs.20,000/- which the deceased had advanced to the Accused Respondents by way of loan. However, as observed above, there is no whisper of the alleged loan in the FIR lodged by the complainant wife being the second Prosecution 8 Witness. 27. That apart, the first and fourth Prosecution Witnesses have admitted in cross-examination that they did not have first hand knowledge of the loan alleged to be advanced by the deceased to the Accused Respondent No.1. The first Prosecution Witness said that the complainant (PW2) had told him that the Accused Respondent No.1 had not repaid loan of Rs.20,000/- to the deceased. The fourth Respondent said she had heard about the loan from her deceased brother. Though she said that the loan was given to the Accused Respondent No.1 at the time of his daughter’s marriage she could not say how long ago the loan was given. She could not even tell the approximate date or year of marriage of the Accused Respondent No.1’s daughter. From the evidence of the first and the second Prosecution 28. Witnesses it transpires that the deceased had left his house at around 10.00 a.m. on 22nd June 2014, to go to his Aunt’s house in connection with his Aunt’s daughter’s marriage. He was wearing a gold chain and two gold rings and carried Rs.800/- with him for buying a pair of trousers and shirt and Rs.5000/- for articles for the marriage. Enquiries, however, revealed that he had not gone to his Aunt’s house. It is, however, difficult to understand why the deceased should have been wearing his home guard uniform if he were going to visit his Aunt in connection with the marriage of his Aunt’s daughter. There is evidence to show that the deceased was found in his home guard uniform. The 9 relevance of the plan of the deceased to go to his Aunt’s house or his plan to buy clothes etc. is also not clear. This is in no way linked to the incident of death of the deceased. Prosecution has failed to show a link between the proposed visit of the deceased to his Aunt’s house with the guilt, if any, of the Accused Respondents. 29. The evidence of the first Prosecution Witness Dhanjaya Tadu, brother of the deceased, that he had found the motor cycle of the deceased in front of the shop of the accused persons on the evening of the 22nd June 2014, is difficult to accept. He said he had asked the second accused about whereabouts of his brother to which the second accused had expressed ignorance, but on the next day, the second Accused Respondent and his father informed them that his brother was lying senseless. It seems rather unnatural that this witness, who was the brother of the deceased, should have chosen not to make any inquiry either in the police station or in the neighbourhood, even after seeing the motor cycle of the deceased in front of the shop, and after being told his brother was not in the shop. No attempt was made to look for the deceased even though he did not return home all night. 30. The eighth Prosecution Witness, Dr. Bhisma Parida, who had at the time of death of the deceased been posted as Medical Officer at CHC Chandabali and had conducted the autopsy/post mortem examination of the deceased at around 1.00 p.m. on 24th June 2014, deposed that the deceased died due to electrical injury, suffered within 24 hours of the 10 autopsy. The stomach of the deceased was full of food particles including meat and there was smell of alcohol. The deceased had been intoxicated with alcohol. The Medical Officer found electrical wounds in the leg which were sufficient to cause death. He opined that the injuries sustained by the deceased might have been due to contact with live electric wire. He opined that the contact was prolonged. The injuries were ante mortem. This witness was of the opinion that the death may have been accidental or homicidal, but not suicidal. 31. Nothing significant has emerged from the oral evidence of the ninth Prosecution Witness, Smt. Kumari Behera, the Investigating Officer, to establish the guilt of the Accused Respondents. She only stated that the fifth Prosecution Witness had in course of examination stated before her that the first Accused Respondent and the deceased used one of the quarters where they regularly took tiffin and they were both present there on the date of the incident in Court. The fifth Prosecution Witness, however, denied having made any such statement to the Police and remained unshaken in cross-examination by the Public Prosecutor. He only admitted that he had a saloon in the area, but denied knowing the deceased, the Accused Respondents or the informant. The fifth Prosecution Witness said that the Police had neither examined him, nor recorded his statement. 11 32. In her deposition, the Investigating Officer also said that some local persons had stated that the first Accused Respondent, Banabhihari had, out of animosity, killed the deceased by applying electric current. The oral evidence of the Investigating Officer in this regard is totally vague and devoid of particulars. The Investigating Officer (PW-9) had neither named the local persons nor enquired into the source of their information if any. The local persons have not been examined as witnesses. 33. The Prosecution miserably failed to establish the guilt of the Accused Respondents. The Trial Court rightly acquitted the Accused Respondents. There is no infirmity in the judgment of the Trial Court, that calls for interference As held by this Court in <cite>Sadhu Saran Singh v. State of U.P. 34. reported in 2016 (4) SCC 357</cite>, an appeal against acquittal has always been on an altogether different pedestal from an appeal against conviction. In an appeal against acquittal, where the presumption of innocence in favour of the accused is reinforced, the appellate court would interfere with the order of acquittal only when there is perversity. In this case, it cannot be said that the reasons given by the High Court to reverse the conviction of the accused are flimsy, untenable or bordering on perverse appreciation of evidence. 12 35. Before a case against an accused can be said to be fully established on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn must fully be established and the facts so established should be consistent only with the hypothesis of guilt of the accused. There has to be a chain of evidence so complete, as not to leave any reasonable doubt for any conclusion consistent with the innocence of the accused and must show that in all human probability, the act must have been done by the Accused. 36. In <cite>Shanti Devi v. State of Rajasthan</cite> reported in (2012) 12 SCC 158, this Court held that the principles for conviction of the accused based on circumstantial evidence are: “10.1. The circumstances from which an inference of guilt is sought to be proved must be cogently or firmly established. 10.2. The circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused. 10.3. The circumstances taken cumulatively must form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and none else. 10.4. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.” 13 37. Keeping the above test in mind, we have no iota of doubt that the Trial Court rightly acquitted the Accused Respondents. There is a strong possibility that the accused, who was as per the opinion of the doctor who performed the autopsy, intoxicated with alcohol, might have accidentally touched a live electrical wire, may be while he was asleep. The impugned judgment of the High Court dismissing the appeal on the ground of delay does not call for interference under Article 136 of the Constitution of India. 38. It is well settled by a plethora of judicial pronouncement of this Court that suspicion, however strong cannot take the place of proof. An accused is presumed to be innocent unless proved guilty beyond reasonable doubt. This proposition has been reiterated in <cite>Sujit Biswas v. State of Assam reported in AIR 2013 SC 3817</cite>. In <cite>Kali Ram v. State of Himachal Pradesh reported in AIR 39. 1973 SC 2773</cite>, this Court observed:- “Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases where in the guilt of the accused is sought is to be established by circumstantial evidence.” 14 40. For the reasons discussed above, we find no ground to interfere with the impugned judgment and order of the High Court under Article 136 of the Constitution of India. Consequently, the Special Leave Petition is dismissed. Pending application stands disposed of.

The question involved in the appeals is with respect to the levy of education cess, higher education cess, and National Calamity Contingent Duty (NCCD) on it.   The appeals arise out of common judgment.   The High Court has held that duties in question are not part of the exemption notification.  The writ petitions have been dismissed.  Hence, the appeals have been preferred. 3. The   Government   of   India   in   order   to   promote   industrial 2 development   in   the   North   Eastern   Region,   announced   vide   Office Memorandum dated 24.12.1997, specific fiscal incentives including total exemption   from   tax   to   the   new   industrial   units   and   substantial expansion of existing unit in the North Eastern Region for a period of 10 years from the date of commencement of production.   Government of Sikkim vide Notification dated 17.2.2003, notified new industrial policy whereby   all   fiscal   incentives   available   to   the   industries   in   the   North Eastern Region would be available to the units set up in the State of Sikkim. 4. The   Central   Government   issued   a   Notification   dated   9.9.2003, granting exemption from payment of duty of excise for goods specified in the notification and cleared from a unit located in the Industrial Growth Centre or other specified areas within the State of Sikkim.   Under the notification, a manufacturer of specified goods was required to pay excise duty on the goods cleared from its unit.  The manufacturer has to first utilize the Cenvat Credit for discharging duty liability on final products, and the remaining amount of duties had to be paid through Personal Ledger   Account   (PLA)   or   Current   Account,   i.e.,   in   cash.     Thus,   the exemption scheme was to discharge the liability on the final product and then claim or avail the refund or re­credit of the duties paid in cash. 3 5. The   Unicorn   Industries   established   a   unit   in   2006   for manufacturing   “Indian   Mouth   Freshener”   an   excisable   commodity covered under Chapter 21 of the First Schedule of Central Excise Tariff Act, 1985.  It was registered under the Central Excise Act.  In June 2006, the appellant had started manufacturing its product. 6. The   appellant   has   submitted   that   following   excise   duties   were recovered   under   diverse   names/nomenclature   and   rates   on   Indian Mouth Freshener manufactured and cleared by the appellant: a. Basic Excise Duty @ 37.5 % ad valorem; b. National   Calamity   Contingent   Duty   (NCCD)   @   23%  ad Valorem (under Section 136 of the Finance Act, 2001); c. Additional Excise Duty (Pan Masala & Tobacco Products) @ 5.5% ad valorem (under Section 85 of the Finance Act, 2005); and d. Education Cess @ 2%  ad valorem  (under Section 91 of the Finance Act, 2004) aggregating to 68% ad valorem. 7. As per Notification No.71/2003­CE dated 9.9.2003, the appellant was entitled to refund of the abovesaid duties of excise.  The respondents 4 extended benefits and used to grant refund to the appellant as per the abovementioned   notification.     The   Excise   Authorities   used   to   issue   a certificate of re­utilization of excise duty for the particular month.   The appellant used to re­credit the amount of excise duty. 8. The Deputy Commissioner of Central Excise issued a show cause notice dated 2.1.2007, requiring the appellant to repay the amount of NCCD for the period July, 2006 to December, 2006, on the ground that exemption   was   not   permissible   under   the   notification   for   the   units located in the State of Sikkim.  The appellant filed a writ petition before the High Court for quashing the abovementioned communication dated 2.1.2007.   The High Court disposed of the same with liberty to show cause   to   the   said   communication.     The   appellant   filed   its   reply.   On 4.7.2007, the Commissioner, Central Excise issued show cause notice, it was   submitted   that   grounds   phrased   in   the   response   were unsustainable.   The appellant was  asked to  show cause why amount should not be recovered under Section 11­A of the Central Excise Act along with the interest and penalty. 9. Notification No.71/2003­CE came to be amended on 25.4.2007 by Notification   No.21/2007,   excluding   Pan   Masala   falling   under   Chapter XXI   of   the   Tariff   from   the   purview   of   the   notification.     Thus,   the 5 exemption on Pan Masala came to an end vide Notification No.21/2007 dated 25.4.2007, which was challenged by way of separate Writ Petition No.22 of 2007. The High Court vide judgment and order dated 11.5.2012 allowed the Writ Petition (C) No.22 of 2007 and held that the appellant was entitled to exemption from payment of excise duty on manufacture of   Pan   Masala   for   ten   years   from   the   date   of   commencement   of commercial production, i.e., 27.6.2006. 10. The   appellant   submitted   that   14   separate   claims   were   filed   for refund of additional excise duty and education cess on the ground these levies are also duties of excise, for which exemption had been granted for ten years.  The appellant filed Writ Petition (C) No.24 of 2007 before the High Court of Sikkim at Gangtok for quashing Notification No.71/2003­ CE, confining the exemption to "under any of the said Acts” mentioned in paragraph 1 of the notification. The prayer was made for a declaration that the exemption notification was applicable to NCCD, additional excise duty (Pan Masala) and education cess and the Notification No.71/2003­ CE was repugnant to the Industrial Policy decision declared by Union of India   (respondent   no.1)   and   State   of   Sikkim   (respondent   no.4).     The appellant claimed that excise duty exemption would include all levy in nature  of  excise duty, levied and  collected on  goods manufactured in 6 India. 11. Vide Notifications dated 27.3.2008 and 10.6.2008, the benefit of Cenvat Credit was withdrawn.  The appellant challenged the notification through Writ Petition (C) No.11 of 2008.  The High Court was pleased to allow the said petition vide judgment and order dated 15.11.2010. 12. Akshay Ispat and Ferro Alloys Private Limited, the manufacturer of Ferro Silicon, an excisable commodity, has filed other appeal.   It had obtained permanent registration under the Central Excise Rules 2002 on 11.3.2004.   The Government of India introduced education cess under Chapter VI of Section 91 of the Finance Act, 2004.  The appellant did not claim the benefit of the education cess for the period August 2004 to March 2006.  After that, it started taking the re­credit of the education cess w.e.f. 1.4.2006.  On 12.9.2006, the Superintendent, Central Excise, sent a communication directing the appellant to pay the education cess with interest and penalty for August, 2006.  The appellant submitted its reply.  After that, show cause notice dated 31.10.2006, was issued to the appellant   regarding   default   in   payment   of   education   cess   for   August, 2006   and   September,   2006   and   proceedings   were   initiated   for infringement   under   Section   91(3)   of   the   Finance   Act,   2004.     The 7 appellant   sent   a   reply;   however,   on   6.12.2006,   another   show   cause notice   was   issued.     The   appellant   after   that   claimed   on   19.12.2006 repayment of education cess for the period August, 2004 to March, 2006. In   March  2007,   the   Government   of   India   introduced   secondary   and higher   education   cess   under   Section   126   of   the   Finance   Act,   2007. Section 128(1) of the Finance Act, 2007 indicated how the said cess was to   be   calculated.     The   respondents   demanded   by   issuance   of   further notice education cess and secondary and higher education cess.   The appellant filed a writ application in the High Court.   By the impugned judgment, the same has been dismissed.  The High Court dismissed the Writ   Petition   (C)   No.24   of   2007,   and   another   concerning   NCCD   and education cess, secondary and higher education cess and held that they were not included under exemption Notification No.71/2003­CE and the appellant had illegally availed the benefits of the exemption in respect to it.  Aggrieved by the dismissal of the writ petitions, the appeals have been preferred.  13. Learned  counsel appearing  on  behalf  of  the  appellant submitted that NCCD, education cess, and secondary and higher education cess form part of the excise duty.   Hence, the decision of the High Court is bad in law.  Reliance has been placed on <cite>SRD Nutrients Private Limited v. 8 Commissioner of Central Excise, Guwahati,  (2018) 1 SCC 105</cite> and the decision of this Court in  <cite>Bajaj Auto Limited v. Union of India & others, 2019 SCC OnLine SC 421</cite>,  decided on 27.3.2019.   It is submitted that the education cess was introduced by Sections 91 and 93 of the Finance Act, 2004 and higher education cess by the Finance Act, 2007 and the NCCD was imposed under Section 136 of the Finance Act, 2001.   The imposition is in the nature of a duty of excise and in addition to any other duty of excise chargeable under the Central Excise Act, 1944 (‘the Act of 1944’).  It is further provided that the provisions of the Act of 1944 and   Rules   made   thereunder   relating   to   refunds   and   exemptions   from duties and imposition of penalty, shall, as far as may be, apply with respect  to  the   abovementioned   duties  in   question.    Reliance   has   also been   placed   on   circulars   dated   10.8.2004   and   8.4.2011,   issued   by Central Board of Excise and Customs, on the subject of education cess and secondary and higher education cess. 14. Learned counsel appearing on behalf of respondents has submitted that   the   decision   of   the   High   Court   is   appropriate   and   no   case   for interference   is   made   out.     The   benefit   of   exemption   granted,   w.e.f. 9.9.2003 from payment of excise duty was withdrawn vide notification dated 25.4.2007.   Tobacco and Tobacco products including cigarettes, 9 cigars and  gutkha, were excluded from the benefit of exemption of the excise duty.  The notification dated 25.4.2007 was set aside by the High Court.  The decision of the High Court has been reversed by this Court in <cite>Union   of   India   v.   Unicorn   Industries  (Civil   Appeal   No.   7432   of   2019)</cite>, decided on 19.9.2019.   Apart from that, when exemption notifications were   issued,   the   NCCD,   education   cess   and   secondary   and   higher education cess were not even imposed, as such, it could not be said that they were covered under the exemption notification.  The duty described above had been imposed by separate legislation, which was not covered under the exemption notification.  It was an additional duty imposed in the nature of excise duty.   They were not covered under the exemption notification.     As   such,   the   High   Court   has   rightly   dismissed   the   writ application filed by the appellants.   Hence, no case for interference is made out. 15. It   is   not   disputed   that   the   Government   of   India   took   a   policy decision,   Ministry   of   Industry,   Department   of   Industrial   Policy   and Promotion vide Office Memorandum dated 24.12.1997, concerning new industrial   policy   and   concessions   in   the   North­Eastern   region.     The decision was taken for converting the Growth Centres and IIDCs into total tax­free zones for the next ten years.   All industrial activities in 10 these zones would be free from income tax and excise duty for ten years from the commencement of production. 16. The benefit of the said notification was extended to the State of Sikkim   vide   notification   dated   17.2.2003.     Following   benefits   were extended to the new and the existing industrial units:   “i)   New   industrial   units   and   existing   industrial   units   on   their substantial   expansion   as   defined,   set   up   in   Growth   Center, Industrial   Infrastructure   Development   Centers   (IIDCs)   and   other locations   like   Industrial   Estates,   Export   Processing   Zones,   Food Parks,  IT   Parks,  etc.,   as  notified   by  the  Central   Government  are entitled   to   100%   (hundred   percent)   income   tax   and   excise   duty exemption for a period of 10 years from the date of commencement of commercial production.   Thrust Sector Industries as mentioned in Annexure­II are entitled to similar concessions in the entire State of Sikkim without area restrictions.” 17. The Government decided to exempt 100 per cent income tax and excise   duty   for   ten   years.   In   accordance   with   the   policy   decision   the Notification   No.71/2003   was   issued   on   9.9.2003   by   the   Central Government in exercise of powers conferred by Section 5A(1) of the Act of 1944 read with Section 3(3) of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (‘the Act of 1957’) and Section 3(3) of the Additional Duties of Excise (Textiles and Textiles Articles) Act, 1978 (‘the Act of 1978’), exempted goods specified in the First Schedule and the Second Schedule to the Central Excise Tariff Act, 1985, other than goods specified   in   Annexure   I   in   the   State   of   Sikkim.     The   exemption   from 11 payment of so much of excise duty or additional duty of excise, as the case may be, leviable thereon under any of the said Act.   The relevant portion is extracted hereunder: “Notification No.71/2003 – Central Excise In exercise of the powers conferred by sub­section (1) of section 5A of the Central Excise Act, 1944 (1 of 1944), read with sub­section (3) of section  3 of the Additional Duties of Excise  (Goods of Special Importance) Act, 1957 (58 of 1957) and sub­section (3) of Section 3 of the Additional Duties of Excise (Textiles and Textiles Articles) Act, 1978 (40 of 1978), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts the goods specified   in   the   First   Schedule   and   the   Second   Schedule   to   the Central   Excise   Tariff   Act,   1985   (5   of   1986),   other   than   goods specified in Annexure I appended hereto, and cleared from a unit located in the Industrial Growth Centre or Industrial Infrastructure Development   Centre   or   Export   Promotion   Industrial   Park   or Industrial   Estate   or   Industrial   Area   or   Commercial   Estate   or Scheme Area, as the case may be, in the State of Sikkim, specified in   Annexure  –   II   appended   hereto,  from   so   much   of  the   duty  of excise   or   additional   duty   of   excise,   as   the   case   may   be,  leviable thereon under any of the said Acts as is equivalent to the amount of duty paid by the manufacturer of the said goods, other than the amount   of   duty   paid   by   utilization   of   CENVAT   credit   under   the CENVAT Credit Rules, 2002.” (emphasis supplied) 18. Section 136 of the Finance Act, 2001 provides imposition of the NCCD.  Section 136 is extracted hereunder: “136.  National Calamity Contingent Duty.­(1) In the case of goods specified   in   the   Seventh   Schedule,   being   goods   manufactured   or produced, there shall be levied and collected for the purposes of the Union,   by  surcharge,   a   duty   of   excise,   to   be   called   the   National Calamity Contingent Duty (hereinafter referred to as the National Calamity Duty), at the rates specified in the said schedule. (2)  The National Calamity Duty chargeable on the goods specified in the Seventh Schedule  shall be in addition to any other duties of excise chargeable on such goods under the Central Excise Act, 1944 (1 of 1944) or any other law for the time being in force. (3)   The provisions of the Central Excise Act, 1944 (1 of 1944) and 12 the rules made thereunder, including those relating to refunds and exemptions from duties and imposition of penalty, shall, as far as may be, apply in relation to the levy and collection of the National Calamity Duty leviable under this section in respect of the goods specified in the Seventh Schedule as they apply in relation to the levy and collection of the duties of excise on such goods under that Act or those rules, as the case may be.” (emphasis supplied) 19. The   education   cess   came   to   be   imposed   vide   notification   dated 10.9.2004 issued under the Finance Act, 2004.  Sections 91 and 93 are extracted hereunder: “91.  Education Cess­(1) Without prejudice to the provisions of sub­ section   (11)   of   Section   2,   there   shall   be   levied   and   collected,   in accordance   with   the   provisions   of   this   Chapter   as  surcharge   for purposes of the Union,  a cess to be called the Education Cess, to fulfil   the   commitment   of   the   Government   to   provide   and   finance universalized quality basic education. (2)  The Central Government may, after due appropriation made by Parliament by law in this behalf, utilize, such sums of money of the Education Cess levied under sub­section (11) of Section 2 and this Chapter   for   the   purposes   specified   in   sub­section   (1),   as   it   may consider necessary. *** 93.   Education Cess on Excisable Goods­ (1)   The Education Cess levied under Section 81, in the case of goods specified in the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986), being goods manufactured or produced, shall be a duty of excise (in this section referred to as the Education Cess on excisable goods), at the rate of  two  per cent,  calculated on the aggregate of all duties of excise (including special duty of excise or any other duty of excise but excluding Education Cess on excisable goods) which are levied and collected by the Central Government in the Ministry of Finance (Department of Revenue) under the provisions of the Central Excise Act, 1944 (1 of 1944) or under any other law for the time being in force. (2)  The Education Cess on excisable goods shall be in addition to any   other   duties   of   excise   chargeable   on   such   goods  under   the Central Excise Act, 1944 (1 of 1944) or any other law for the time being in force. (3)  The provisions of the Central Excise Act, 1944 (1 of 1944) and 13 the rules made thereunder, including those relating to refunds and exemptions from duties and imposition of penalty shall, as far as may be, apply in relation to the levy and collection of the Education Cess  on excisable goods as they apply in relation to the levy and collection of the duties of excise on such goods under the Central Excise Act, 1944 or the rules, as the case may be.” (emphasis supplied) 20. The   Central   Government   introduced   the   secondary   and   higher education cess at the rate of 1 per cent of the total excise duty under Sections 126 and 128 of the Finance Act, 2007, which are reproduced hereunder: "126. (1) Without prejudice to the provisions of sub­section (12) of section 2, there shall be levied and collected, in accordance with the provisions of this Chapter as surcharge for purposes of the Union, a cess to be called the Secondary and Higher Education Cess, to fulfil the   commitment   of   the   Government   to   provide   and   finance secondary and higher education. (2) The Central Government may, after due appropriation made by Parliament by law in this behalf, utilize, such sums of money of the Secondary and Higher Education Cess levied under sub­section (12)   of   section   2   and   this   Chapter   for   the   purposes   specified   in subsection (1) as it may consider necessary. XXXXXX XXXXXX XXXXXX XXXXXX 128.   (1) The  Secondary   and  Higher  Education   Cess   levied  under section 126, in the case of goods specified in the First Schedule to the Central Excise Tariff Act, 1985, being goods manufactured or produced, shall be a duty of excise (in this section referred to as the Secondary and Higher Education Cess on excisable goods), at the rate of one per cent., calculated  on the aggregate of all duties of excise (including special duty of excise or any other duty of excise but excluding Education Cess chargeable under section 93 of the Finance   (No.   2)   Act,   2004   and   Secondary   and   Higher   Education Cess   on   excisable   goods)   which   are   levied   and   collected   by   the Central   Government   in   the   Ministry   of   Finance   (Department   of Revenue), under the provisions of the Central Excise Act, 1944 or under any other law for the time being in force. 14 (2) The Secondary and Higher Education Cess on excisable goods shall be in addition to any other duties of excise chargeable on such goods, under the Central Excise Act, 1944 or any other law for the time   being   in   force   and   the   Education   Cess   chargeable   under section 93 of the Finance (No. 2) Act, 1944. (3) The  provisions  of the Central Excise Act, 1944 and the rules made   thereunder,   including   those   relating   to  refunds   and exemptions from duties and imposition of penalty shall, as far as may be, apply in relation to the levy and collection of the Secondary and   Higher   Education   Cess   on   excisable   goods   as   they   apply   in relation to the levy and collection of the duties of excise on such goods   under   the   Central   Excise   Act,   1944   or   the   rules   made thereunder, as the case may be." 21.   The appellant challenged the exemption Notification No.71/2003 dated 9.9.2003, before the High Court only to the extent that it limits the exemption only in relation to basic excise duty under the Excise Act, additional duties under the Act of 1957 and the additional duties under the   Act   of   1978.     It   is   submitted   that   though   various   Finance   Acts imposed   these   duties,   they   were   recoverable   as   excise   duty, notwithstanding their nomenclature.   The notification dated 17.2.2003 indicated that 100 per cent income tax and excise duty exemption for ten years was granted.   The exemption should cover the NCCD, education cess   and   the   secondary   and   higher   education   cess   imposed   by   the notifications issued under Finance Acts of 2001, 2004, and 2007.   22. The main question arising for consideration is when 100 per cent exemption had been granted for excise duty for a period of 10 years, 15 whether   the   exemption   notification   issued   for   the   State   of   Sikkim   on 9.9.2003   shall   be   confined   to   the   basic   excise   duty   under   the   Act   of 1944, additional duty under the Act of 1957 and additional duty under the Act of 1978, which were specifically mentioned in the notification issued on 9.9.2003, or it also include cess/duty imposed by Finance Acts of 2001, 2004 and 2007. 23. The submission raised on behalf of appellant is that the duty and cess in the nature of excise duty cannot be realized, particularly in view of the provisions in the Finance Acts of 2001, 2004 and 2007 relating to refund and exemption, which have made applicable, the provisions of the Act of 1944 and the Rules made thereunder relating to exemption.   As such, in view of the decisions of Division Bench of this Court in  <cite>SRD Nutrients   Private   Limited  (supra)</cite>   and  <cite>Bajaj   Auto   Limited  (supra)</cite>,   the decision of the High Court deserves to be set aside. 24. It is  not in  dispute that when initial  exemption  notification was issued in 1997 for the North­Eastern States, which was later on applied to the State of Sikkim on 9.9.2003.  The benefits from payment of excise duty and additional excise duty were confined to the basic excise duty payable under the Acts of 1944, 1957 and 1978.  There was no reference 16 made to NCCD imposed under the Finance Act, 2001.  Apart from that, when   the   notification   came   to   be   issued,   the   education   cess   and secondary   and   higher   education   cess,   which   came   to   be   imposed   by Finance Acts of 2004 and 2007, were not in vogue. 25. A Division  Bench of this  Court in  <cite>SRD Nutrients Private Limited (supra)</cite> has considered the Finance Acts of 2004 and 2007, by which education   and   secondary   and   higher   education   cess   were   imposed. Under the Industrial Policy dated 1.4.2007 for the North­Eastern States, the   notification   dated   25.4.2007,   issued   by   the   Central   Government, came up for consideration before this Court.   The said notification and the industrial policy, have been dealt with in paragraphs 4 and 5 of the <cite>SRD Nutrients Private Limited (supra)</cite>, which are extracted hereunder: “4.  Industrial Policy dated 1­4­2007 for the North­Eastern States, including the State of Assam, was announced by the Ministry of Commerce   and   Industry   (Department   of   Industrial   Policy   and Promotion), Government of India to set up a special package for the North­Eastern   States   to   accelerate   industrial   development   of   the State.  As per  this  package,  new  industrial  units were  entitled  to 100% excise duty exemption for a period of ten years from the date of commencement of commercial production. Pursuant to the said Industrial   Policy,  the  Central   Government   issued  Notification  No. 20/2007­Ex. Dated 25­4­2007 granting exemption from duties of excise   levied   under   the   Central   Excise   Act,   1944   (hereinafter referred   to   as  “the  Act”)  read   with  Section  3(3)   of  the  Additional Duties   of   Excise   (Goods   of   Special   Importance)   Act,   1957   and Section 3(3) of the Additional Duties of Excise (Textiles & Textile Articles) Act, 1978 to goods cleared from the notified areas within the  North­Eastern  States. The said Notification  provided that the assessee would be entitled to refund of duty paid other than the duty paid by way of utilisation of CENVAT credit under the CENVAT Credit Rules, 2004. 17 5.  Reproduction  of  the  first   three   paragraphs  of  this   Notification would be sufficient, which are as follows: “NOTIFICATION No.: 20/2007­CE dated 25­4­2007 North­East — Exemption to all goods, except as specified, cleared   from   Assam,   Tripura,   Meghalaya,   Mizoram, Manipur,   Nagaland,   Arunachal   Pradesh   or   Sikkim   from duty paid other than by utilisation of CENVAT credit. In   exercise   of   the   powers   conferred   by   sub­section   (1)   of Section 5­A of the Central Excise Act, 1944 (1 of 1944), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts the goods specified in the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) other than those mentioned in the Annexure and cleared from   a   unit   located   in   the   States   of   Assam   or   Tripura   or Meghalaya or Mizoram or Manipur or Nagaland or Arunachal Pradesh or Sikkim, as the case may be, from so much of the duty   of   excise   leviable   thereon   under   the   said   Act   as   is equivalent to the amount of duty paid by the manufacturer of goods   other   than   the  amount   of  duty   paid   by   utilisation   of CENVAT credit under the CENVAT Credit Rules, 2004. 2. In cases where all goods produced by a manufacturer are eligible for exemption under this Notification, the exemption contained in this Notification shall be available subject to the condition   that,   the   manufacturer   first   utilises   whole   of   the CENVAT credit available to him on the last day of the month under   consideration   for   payment   of   duty   on   goods   cleared during such month and pays only the balance amount in cash. 3. The exemption contained in this notification shall be given effect to in the following manner, namely— (a) the manufacturer shall submit a statement of the duty paid other than the amount of duty paid by utilisation of CENVAT credit under the CENVAT Credit Rules, 2004, to the Assistant Commissioner or the Deputy Commissioner of Central Excise, as the case may be, by the 7th of the next month in which the duty has been paid other than the amount of duty paid by utilisation of CENVAT credit under the CENVAT Credit Rules, 2004; (b) the Assistant Commissioner of Central Excise or the Deputy Commissioner   of   Central   Excise,   as   the   case   may   be,   after such verification, as may be deemed necessary, shall refund the amount of duty paid other than the amount of duty paid 18 by   utilisation   of   CENVAT   credit   under   the   CENVAT   Credit Rules,   2004,   during   the   month   under   consideration   to   the manufacturer by the 15th of the next month: Provided that in cases, where the exemption contained in this Notification is not applicable to some of the goods produced by a manufacturer, such refund shall not exceed the amount of duty paid less the amount of the CENVAT credit availed of, in respect of the duty paid on the inputs used in or in relation to the manufacture of goods cleared under this Notification; (c) if there is likely to be any delay in the verification, Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, shall refund the amount on   provisional   basis   by   the   15th   of   the   next   month   to   the month   under   consideration   and   thereafter   may   adjust   the amount of refund by such amount as may be necessary in the subsequent refunds admissible to the manufacturer.” Circulars have also been referred to in the decision of this Court in <cite>SRD Nutrients Private Limited (supra)</cite>.  The same is extracted hereunder: “17. It is clear from the arguments of the counsel for the parties that divergent views are expressed by the CESTAT as well as High Courts. Even one Bench of the same Tribunal has differed from its earlier Division Bench decision. In this scenario, it becomes important as to how   the   Department   has   viewed   the   position   regarding   education cess and higher education cess which is payable as a surcharge on the excise duty, once the excise duty is exempted. Two circulars are relevant   in   this   behalf,   one   is   Circular   dated   10­8­2004   which clarifies that education cess is part of excise duty. In this circular, certain   clarifications   are   given   by   the   Ministry   of   Finance (Department   of   Revenue),   Government   of   India   and   the   relevant portion thereof reads as under: “Subject:  Issues   relating   to   imposition   of   education   cess   on excisable goods and on imported goods, as pointed out by the trade and the field formations—Reg. The undersigned is directed to state that subsequent to Budget 2004 announcements, a number of representations/references have been received from the trade as well as from the field formations   pertaining   to   imposition   of   education   cess   on excisable goods and on imported goods. The points raised and the clarifications thereon are as follows: 19 Issue (1): Whether education cess on excisable goods is leviable on goods manufactured prior to imposition of cess but cleared after imposition of such cess? Clarification: Education cess on excisable goods is a new levy. In similar cases, it has been held by the Supreme Court that if a levy is not there at the time the goods are manufactured or produced in India, it cannot be levied at the stage of removal of the   said   goods.   Thus,   education   cess   is   not   leviable   on excisable goods manufactured prior to imposition of cess but cleared after imposition of such cess. Issue (2): Whether goods that are fully exempted from excise duty/customs duty or are cleared without payment of excise duty/customs   duty   (such   as   clearance   under   bond   or fulfilment of certain conditions) would be subjected to cess. Clarification: The education cess is leviable at the rate of two per   cent   of   the   aggregate   of   all   duties   of   excise/customs (excluding certain duties of customs like anti­dumping duty, safeguard duty,  etc.),  levied and collected. If goods are fully exempted from excise duty or customs duty, are chargeable to NIL   duty   or   are   cleared   without   payment   of   duty   under specified procedure such as clearance under bond, there is no collection of duty. Thus, no education cess would be leviable on   such   clearances.   In   this   regard,   letter   D.O.   No. 605/54/2004­DBK   dated   21­7­2004   issued   by   Member (Customs) may also be referred to.” (emphasis in original)” In the circular dated 10.8.2004, reference has been made to the notification issued by Member (Customs), wherein it is stated that there is no collection of excise duty; hence, no education cess would be leviable on such clearances. Circular dated 8.4.2011 had been issued by the Central Board of Excise   and   Customs   with   respect  to   service   tax.     In   case   service   tax stands exempted, education cess and secondary and higher education cess shall not be levied.   20 26. This Court in  <cite>SRD Nutrients Private Limited  (supra)</cite> has observed that the circulars bind department. When there is no excise duty, the education cess and secondary and higher education cess could not have been demanded.  This Court observed thus: “21. One aspect that clearly emerges from the reading of these two circulars is that the Government itself has taken the position that where   whole   of  excise   duty   or   service   tax   is  exempted,   even   the education   cess   as   well   as   secondary   and   higher   education   cess would   not   be   payable.   These   circulars   are   binding   on   the Department. 22. Even otherwise, we are of the opinion that it is more rational to accept the aforesaid position as clarified by the Ministry of Finance in   the   aforesaid   circulars.   Education   cess   is   on   excise   duty.   It means that those assessees who are required to pay excise duty have   to   shell   out   education   cess   as   well.   This   education   cess   is introduced by Sections 91 to 93 of the Finance (No. 2) Act, 2004. As per Section 91 thereof, education cess is the surcharge which the assessee is to pay. Section 93 makes it clear that this education cess   is   payable   on   "excisable   goods,"   i.e.,   in   respect   of   goods specified   in   the   First   Schedule   to   the   Central   Excise   Tariff   Act, 1985.   Further,   this   education   cess   is   to   be   levied   @   2%   and calculated on the aggregate of all duties of excise which are levied and collected by the Central Government under the provisions of the Central Excise Act, 1944 or under any other law for the time being   in   force.   Sub­section   (3)   of   Section   93   provides   that   the provisions   of   the   Central   Excise   Act,   1944   and   the   Rules   made thereunder, including those related to refunds and duties, etc. shall as   far   as   may   be   applied   in   relation   to   levy   and   collection   of education   cess   on   excisable   goods.   A   conjoint   reading   of   these provisions   would   amply   demonstrate   that   education   cess   as   a surcharge is levied @ 2% on the duties of excise, which are payable under the Act. It can, therefore, be clearly inferred that when there is no excise duty payable, as it is exempted, there would not be any education cess as well, inasmuch as education cess @ 2% is to be calculated on the aggregate of duties of excise. There cannot be any surcharge when basic duty itself is NIL. 24. We are in agreement with the aforesaid reasons accorded by the Rajasthan   High   Court   since   it   is   in   consonance   with   the   legal principle enunciated by this Court. For this purpose, we may refer *** 21 to the judgment in  <cite>CCE v. TELCO (1997) 5 SCC 275</cite>. In that case, issue pertained to valuation of cess which was levied @ 1/8 per cent of ad valorem “value” of the Central excise duty. The Court held that the calculation of 1/8 per cent ad valorem of the motor vehicle for the purposes of the levy and collection of the automobile cess must be made that was being calculated since automobile cess was to be levied   and   calculated   as   if   it   was   excise   duty.   As   a   fortiori,   the education cess and higher education cess levied @ 2% of the excise duty would partake the character of excise duty itself.” 27. In  <cite>Bajaj   Auto   Limited  (supra)</cite>,   a   Division   Bench   of   this   Court considered the question of liability towards NCCD, education cess and secondary and higher education cess on manufacturing establishment which is exempted from payment of central excise duty under the Act of 1944.     The   matter   arose   from   the   State   of   Uttarakhand;   an   Office Memorandum   dated   7.1.2003   was   issued,   by   which   100   per   cent outright excise duty exemption for ten years was granted from the date of commencement   of   the   commercial   production.     Notification   dated 10.6.2003 issued under Section 5A has been reproduced in the decision mentioned above, the same is extracted hereunder:  “GENERAL EXEMPTION NO. 41 Exemption to goods other than specified goods cleared from units located in the Industrial Growth Centre or Industrial Infrastructure Development   Centre   or   Export   Promotion   Industrial   Park   or Industrial   Estate   or   Industrial   Area   or   Commercial   Estate   or Scheme Area of Uttarakhand and Himachal Pradesh.—In exercise of the powers conferred by sub­section (1) of section 5A of the Central Excise Act, 1944 (1 of 1944) read with sub­section (3) of section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957) and sub­section (3) of section 3 of the Additional Duties   of   Excise   (Textiles   and   Textiles   Articles)   Act,   1978   (40   of 1978), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts the goods specified in the First Schedule and the Second Schedule to the Central Excise Tariff   Act,   1985   (5   of   1986),   other   than   the   goods   specified   in 22 Annexure­I appended hereto, and cleared from a unit located in the Industrial Growth Centre or Industrial Infrastructure Development Centre or Export Promotion Industrial Park or Industrial Estate or Industrial Area or Commercial Estate or Scheme Area, as the case may   be,   specified   in   [Annexure­II   and   Annexure   III]   appended hereto, from the whole of the duty of excise or additional duty of excise, as the case may be, leviable thereon under any of the said Acts.” The Division Bench has relied upon the decision of <cite>SRD Nutrients Private Limited  (supra)</cite>.    The decision  of  the <cite>Rajasthan  High  Court  in Banswara   Syntex   Ltd.   v.   Union   of   India,  2007   SCC   OnLine   Raj.   365</cite>, which was considered in <cite>SRD Nutrients Private Limited (supra)</cite>, was also referred to, besides the circular of 2004.  This Court has observed thus: “21. We may notice that the primary  reasoning contained  in  the impugned   order   is   common   for   the   three   cesses,   i.e.,   NCCD; Education   Cess   and   Secondary   &   Higher   Education   Cess.   These were in the nature of surcharges levied in other Acts, which have not been specifically excluded under the Notification in question. That reasoning does not prevail, more so because of the judgment in SRD Nutrients Pvt. Ltd. The question, thus, is whether, even though the NCCD is in the nature of an excise duty, its incidence being on the product, rather than on the value of the excise duty, that itself would make any difference to the applicability of the NCCD to excise exempt units. 22. On a proper appreciation of the judicial pronouncement in SRD Nutrients Pvt. Ltd., we are not inclined to take a different view from the   one   taken   for   Education   Cess   and   Secondary   &   Higher Education Cess, even while considering the issue of NCCD. 23. We may notice that this Court, in  SRD Nutrients Pvt. Ltd. gave its imprimatur to the view expressed by the Rajasthan High Court in  Banswara Syntex Ltd.  The rationale is that while there may be surcharges   under   different   financial   enactments   to   provide   the Government   with   revenue   for   specified   purposes,   the   same   have been notified as leviable in the nature of a particular kind of duty. In the case of NCCD, it is in the nature of an excise duty. It has to bear   the   same   character   as   those   respective   taxes   to   which   the surcharge is appended. NCCD will not cease to be an excise duty, but is the same as an excise duty, even if it is levied on the product. 23 Thus, when NCCD, at the time of collection, takes the character of a duty on the product, whatever may be the rationale behind it, it is also subject to the provisions relating to excise duty, applicable to it in the manner of collection as well as the obligation of the taxpayer to discharge the duty. Once the excise duty is exempted, NCCD, levied as an excise duty, cannot partake a different character and, thus, would be entitled to the benefit of the exemption notification. The exemption notification also states that the exemption is from the “whole of the duty of excise or additional duty of excise.” We may also note that the exemption itself is for a period of ten years from the date of commercial production of the unit. 24. We are, thus, of the view that the appellant would not be liable to pay the NCCD.” 28. The   Division   Bench   of   this   Court   has   rendered   both   the   above decisions.   The most unfortunate part is that the binding decision of larger bench consisting of three­Judges of this <cite>Court in Union of India v. Modi Rubber Limited,  (1986) 4 SCC 66</cite>, dealing with the similar issue, was   not   placed   for   consideration   before   this   Court   when   the abovementioned decisions came to be rendered. 29. This   Court   in  <cite>Modi   Rubber   Limited  (supra)</cite>   has   considered   the similar question in the backdrop of the facts that what is the meaning of the   expression   ‘duty   of   excise’   employed   in   the   notifications   dated 1.8.1974 and 1.3.1981, issued by the Government of India under Rule 8(1) of the Central Excise Rules.   A question arose whether expression ‘duty   of  excise’  is   limited   in  its   connotation  only   to   basic  duty  levied under   the Central Excises and Salt Act, 1944 or it also covers special 24 duties   of   excise   levied   under   the   various   Finance   Bills   and   Acts, additional duty of excise levied under the Act of 1957 and other kind of duty of excise levied under the Central enactments. 30. In <cite>Modi Rubber Limited (supra)</cite>, the company was the manufacturer of tyres, which product was subject to a duty of excise under the Central Excises and Salt Act, 1944.  The word ‘duty’ under the said Act is defined in Rule 2(v) to mean “the duty payable under Section 3 of the Act”.  The exemption is dealt with under Rule 8 of Central Excise Rules, exempting various categories of excisable goods from the whole or any part of the duty of excise leviable on such goods.  The notification dated 1.8.1974, came   up   for   consideration   before   this   Court   in  Modi   Rubber   Limited (supra), which is extracted hereunder: “3….. Notification No. 123/74­C.E. dated August 1, 1974 In the exercise of the powers conferred by sub­rule (1) of Rule 8 of the Central Excise Rules, 1944, the Central Government hereby exempts tyres for motor vehicles falling under sub­item (1) of Item No.16 of the First Schedule to the Central Excises and Salt Act, 1944   (1   of   1944),   from   so   much   of   the   duty   of   excise   leviable thereon as is in excess of fifty­five per cent ad valorem.” The notification was confined to the exemption of duty of excise under the Act of 1944 in excess of 55 per cent ad valorem. Subsequently, the notification dated 1.3.1981, was issued by the Central Government exempting specified goods from so much of the duty of excise leviable thereon as is more than the duty specified in the corresponding entry in 25 column 5. 31. This Court in <cite>Modi Rubber Limited (supra)</cite> considered the question that since 1963, the special duty of excise was levied  inter alia  on the manufacture of tyres from year to year up to 1971 by various Finance Acts passed from time to time.  It was discontinued from 1972 to 1978, and the Finance Act, 1978, again revived it.  After that, it continued to be levied from year to year right up to the period.   The special duties of excise came to be imposed under Section 32 of the Finance Act, 1979, which   came   up   for   consideration   before   this   Court   in  <cite>Modi   Rubber Limited (supra)</cite>.  The same is extracted hereunder: “32.  Special Duties of Excise.—  (1) In the case of goods chargeable with a duty of excise under the Central Excises Act as amended from time to time, read with any notification for the time being in force issued by the Central Government in relation to the duty so chargeable   there   shall   be   levied   and   collected   a  special   duty   of excise  equal to five per cent of the amount so chargeable on such goods. (2) Sub­section (1) shall cease to have effect after the 31st day of March, 1980, except as respects things done or omitted to be done before such cesser; and Section 6 of the General Clauses Act, 1897, shall apply upon such cesser as if the said sub­section had then been repealed by a Central Act. (3) The Special duties of excise referred to in sub­section (1) shall be  in   addition  to  any duties  of excise  chargeable  on such  goods under the Central Excises Act or any other law for the time being in force. (4) The provisions of the Central Excises Act and the rules made thereunder,   including   those   relating   to   refunds   and   exemptions from duties, shall, as far as may be, apply in relation to the levy and collection of the special duties of excise leviable under this section in respect of any goods as they apply in relation to the levy and collection of the duties of excise on such goods under that Act or those rules as the case may be.” 26 (emphasis supplied) 32. The   provisions   of   Section   32   are  pari   materia  to   the abovementioned provisions of the Finance Act(s) in question.  The special duty under Section 32 of Finance Act, 1979 imposed was in addition to any duties of excise chargeable on such goods under the provisions of the Central Excises Act and the Rules made thereunder, with respect to refunds and exemptions from duties, shall, as far as may be, apply to the levy   and   collection   of   special   duties   of   excise   leviable   under   the provisions of Section 32 of the Finance Act, 1979. 33. The assessee  <cite>Modi Rubber Limited  (supra)</cite> claimed that in view of the notification dated 1.8.1974, assessee was exempted from payment not only in respect of basic excise duty levied under the Central Excises and Salt Act, 1944, but also in respect of special duty of excise levied under   the   relevant   Finance   Acts,   because   the   language   used   in   the notification was not restrictive and it referred generally to ‘duty of excise’ without   any   qualification,   therefore,   it   covered   all   duties   of   excise whether levied under the Central Excises and Salt Act, 1944 or under any other Central enactments.  The dispute pertained to the period from November 1979 to October 1982. 27 34. The   Assistant   Collector   of   Excise,   in   the   case   of  <cite>Modi   Rubber Limited (supra)</cite>, held that exemption granted under the notification dated 1.8.1974, was not available in respect of special duty of excise levied under the Finance Acts. The assessee thereupon filed a writ petition in the Delhi High Court, challenging the order of the Assistant Collector of Excise.  The Delhi High Court upheld the claim of the assessee. It took the view that the expression ‘duty of excise’ included not only basic duty of excise levied under the Central Excises and Salt Act, 1944, but also the special duty of excise levied under the various Finance Acts and any other   duties   of   excise   levied   under   Central   enactment.     Meanwhile, Parliament   also   enacted   the   Central   Excise   Laws   (Amendment   and Validation) Act, 1982 laying down statutory rules which should guide the court in interpreting notifications granting exemption from payment of duty   of   excise   and   prescribing   the   conditions   on   which   a   notification granting exemption from payment of duty of excise can be construed as applicable to duty of excise levied under any Central law making the provisions of the Central Excises and Salt Act, 1944 and the Rules made thereunder applicable to the levy and collection of duty of excise under such Central Law. 35. The question arose for consideration before this Court as to what is 28 the real import of the expression ‘duty of excise’ in the notifications dated 1.8.1974   and   1.3.1981   and   whether   it   includes   the   duties   of   excise leviable not only under the Central Excises and Salt Act, 1944, but also under any other enactment.  36. This   Court   in  <cite>Modi   Rubber   Limited  (supra)</cite>   has   considered   the purport of the notifications and the specific provisions mentioned therein and held that exemption has to be considered in the light of provisions of Central   Excise   Rules,   1944,   as   envisaged   under   Rule   2(v)   of   Central Excise Rules, 1944.  It cannot, in the circumstances, bear an extended meaning to include special excise duty and auxiliary excise duty.   This Court observed thus: “6. The first question that arises for consideration on these facts is as to what is the true import of the expression "duty of excise" in the notifications dated August 1, 1974, and March 1, 1981. It is only if this expression is held to include duties of excise leviable not only under the Central Excises and Salt Act, 1944 but also under any other enactments that the question would arise whether the Central   Laws   (Amendment   and   Validation)   Act,   1982   is constitutionally   invalid.   We,  therefore,   asked   the   learned   counsel appearing on behalf of the parties to confine their arguments only to the first question of interpretation of the expression ‘duty of excise’ in the notifications dated August 1, 1974 and March 1, 1981. 7.  Both these notifications, as the opening part shows, are issued under Rule 8(1) of the Central Excise Rules, 1944 and since the definition   of   ‘duty’   in   Rule   2,   clause   (v)   must   necessarily   be projected in Rule 8(1) and the expression “duty of excise” in Rule 8(1) must be read in the light of that definition, the same expression used in these two notifications issued under Rule 8(1) must also be interpreted in the same sense, namely, duty of excise payable under the Central Excises and Salt Act, 1944 and the exemption granted under both these notifications must be regarded as limited only to 29 such   duty   of   excise.   But   the   respondents   contended   that   the expression ‘duty of excise’ was one of large amplitude and in the absence of any restrictive or limitative words indicating that it was intended to refer only to duty of excise leviable under the Central Excises and Salt Act, 1944, it must be held to cover all duties of excise   whether   leviable   under   the   Central   Excises   and   Salt   Act, 1944   or   under   any   other   enactment.   The   respondents   sought   to support this contention by pointing out that whenever the Central Government   wanted   to   confine   the   exemption   granted   under   a notification to the duty of excise leviable under the Central Excises and   Salt   Act,   1944,   the   Central   Government   made   its   intention abundantly clear by using appropriate words of limitation such as “duty of excise leviable ... under Section 3 of the Central Excises and Salt Act, 1944” or “duty of excise leviable ... under the Central Excises and Salt Act, 1944” or “duty of excise leviable ... under the said   Act”   as   in   the   Notification   No.   CER­8(2)/55­C.E.   dated September 17, 1955, Notification No. 255/77­C.E. dated July 20, 1977, Notification No. CER­8(1)/55­C.E. dated September 2, 1955, Notification   No.   CER­8(9)/55­C.E.   dated   December   31,   1955, Notification   No.   95/61­C.E.   dated   April   1,   1961,   Notification   No. 23/55­C.E. dated April 29, 1955, and similar other notifications. But,   here  said   the  respondents,   no   such   words  of  limitation  are used in the two notifications in question and the expression “duty of excise”   must,   therefore,   be   read   according   to   its   plain   natural meaning as including all duties of excise, including special duty of excise and auxiliary duty of excise. Now, it is no doubt true that in these   various   notifications   referred   to   above,   the   Central Government has, while granting exemption under Rule 8(1), used specified language indicating that the exemption, total or partial, granted under each such notification is in respect of excise duty leviable under the Central Excises and Salt Act, 1944. But, merely because, as a matter of drafting, the Central Government has in some notifications specifically referred to the excise duty in respect of which exemption is granted as “duty of excise” leviable under the Central Excises and Salt Act, 1944, it does not follow that in the absence of such words of specificity, the expression “duty of excise” standing by itself must be read as referring to all duties of excise. It is not uncommon to find that the legislature sometimes, with a view to   making   its   intention   clear   beyond   doubt,   uses   language  ex abundanti cautela though it may not be strictly necessary and even without it the same intention can be spelt out as a matter of judicial construction   and   this   would   be   more   so   in   case   of   subordinate legislation by the executive. The officer drafting a particular piece of subordinate   legislation   in   the   Executive   Department   may   employ words with a view to leaving no scope for possible doubt as to its intention or sometimes even for greater completeness, though these words   may   not   add   anything   to   the   meaning   and   scope   of   the subordinate legislation. Here, in the present notifications, the words duty of excise leviable under the Central Excises and Salt Act, 1944’ 30 do not find a place as in the other notifications relied upon by the respondents. But, that does not necessarily lead to the inference that   the   expression   “duty   of   excise’   in   these   notifications   was intended   to   refer   to   all   duties   of   excise   including   special   and auxiliary   duties   of   excise.   The   absence   of   these   words   does   not absolve us from the obligation to interpret the expression “duty of excise”   in   these   notifications.   We   have   still   to   construe   this expression — what is its meaning and import — and that has to be done,   bearing   in   mind   the   context   in   which   it   occurs.   We   have already   pointed   out   that   these   notifications   having   been   issued under Rule 8(1), the expression ‘duty of excise’ in these notifications must bear the same meaning which it has in Rule 8(1) and that meaning clearly is — excise duty payable under the Central Excises and Salt Act, 1944 as envisaged in Rule 2 clause (v). It cannot in the circumstances bear an extended meaning so as to include special excise duty and auxiliary excise duty.” 37. This Court in  <cite>Modi Rubber  Limited  (supra)</cite> further considered the question when the notification was issued on 1.8.1974, there was no special duty of excise leviable on tyres, it came to be introduced in 1978 under various Finance Acts.   It was held that the notification could not be read as comprehending the special duty of excise on the date of the notification and came to be levied four years later.  This Court also laid down that the presumption is that when the Central Government issues a   notification   granting   exemption   from   payment   of   excise   duty   under Rule   8(1)   of   Rules   of   1944,   the   Central   Government   would   have considered   whether   exemption   should   be   granted   and   if   so,   to   what extent and can only be with reference to the duty of excise which is then leviable, not a duty to be imposed in future.  This Court in <cite>Modi Rubber Limited  (supra)</cite> strongly repelled the argument that it would cover the 31 duties to be imposed in the future not prevailing at the relevant time thus: “8.  Moreover,  at  the  date  when   the  first  notification  was  issued, namely, August 1, 1974, there was no special duty of excise leviable on tyres. It came to be levied on tyres with effect from the financial year 1978 under various Finance Acts enacted from year to year. It is   therefore   difficult   to   understand   how   the   expression   “duty   of excise” in the notification dated August 1, 1974 could possibly be read as comprehending special duty of excise which did not exist at the date of this notification and came to be levied almost four years later. When special duty of excise was not in existence at the date of this notification, how could the Central Government, in issuing this notification,   have   intended   to   grant   exemption   from   payment   of special excise duty? The presumption is that when a notification granting exemption from payment of excise duty is issued by the Central   Government   under   Rule   8(1),   the   Central   Government would   have   applied   its   mind   to   the   question   whether   exemption should be granted and if so, to what extent. And obviously, that can only be with reference to the duty of excise, which is then leviable. The Central Government could not be presumed to have projected its mind into the future and granted exemption in respect of excise duty  which  may  be levied in  the  future, without considering the nature   and   extent   of   such   duty   and   the   object   and   purpose   for which such levy may be made and without taking into account the situation which may be prevailing then. It is only when a new duty of excise is levied, whether special duty of excise or auxiliary duty of excise or any other kind of duty of excise, that a question could arise   whether   any   particular   article   should   be   exempted   from payment of such duty of excise and the Central Government would then have to apply its mind to this question and having regard to the nature and extent of such duty of excise and the object and purpose for which it is levied and the economic situation including supply   and   demand   position   then   prevailing,   decide   whether exemption from payment of such excise duty should be granted and if so, to what extent. It would be absurd to suggest that by issuing the   notification   dated   August   1,   1974   the   Central   Government intended to grant exemption not only in respect of excise duty then prevailing but also in respect of all future duties of excise which may be levied from time to time.” 38. This   Court   in  <cite>Modi   Rubber   Limited  (supra)</cite>   also   considered   the 32 provisions of Section 32 of the Finance Act, 1979, levying special duty making applicable to the provisions of the Act of 1944 and the Rules made thereunder, relating to refunds and exemptions from duties. They shall, as far as may be, apply in relation to the levy and collection of the special duty of excise as they apply to the levy and collection of the duty of   excise   under   the   Act   of   1944.    It   was   held   that   reference   to   the provisions under section 32 of the Finance Act as to the source of power under which notifications dated 1.8.1974 and 1.3.1981 were issued, it could not be held that exemption granted under these two notifications was extendable to Finance Act, 1979. It was limited only to the duty of excise payable under the Act of 1944. The expression 'duty of excise' in these   two   notifications   could   not   legitimately   be   construed   as comprehending special duty of excise.  Merely reference to the source of power is not enough to attract the exemption and what exemption has been granted to be read from the notification issued therein.  This Court has further laid down that in case notification granting exemption issued under   the   Central   Excise   Rules,   1944   without   reference   to   any   other statute,   the  exemption   must  be  read   as  limited   to   the   duty  of  excise payable under the Central Excises and Salt Act, 1944.   It cannot cover such   special   or   another   kind   of   duty   of   excise.     This   Court   in  <cite>Modi Rubber Limited (supra)</cite> has discussed the provisions of the Finance Act, 33 1979 thus: “9.  We have already pointed out, and this is one of the principal arguments   against   the   contention   of   the   respondents,   that   by reason of the definition of “duty” in clause (v) of Rule 2 which must be   read   in   Rule   8(1),   the   expression   “duty   of   excise”   in   the notifications   dated   August   1,   1974   and   March   1,   1981   must   be construed as duty of excise payable under the Central Excises and Salt Act, 1944. The respondents sought to combat this conclusion by relying on sub­section (4) of Section 32 of the Finance Act, 1979 — there being an identical provision in each Finance Act levying special duty of excise — which provided that the provisions of the Central Excises and Salt Act, 1944 and the rules made thereunder including   those   relating   to   refunds   and   exemptions   from   duties shall, as far as may be, apply in relation to the levy and collection of special   duty   of   excise   as   they   apply   in   relation   to   the   levy   and collection of the duty of excise under the Central Excises and Salt Act, 1944. It was urged on behalf of the respondents that by reason of this provision, Rule 8(1) relating to exemption from duty of excise became applicable in relation to the levy and collection of special duty of excise and exemption from payment of special duty of excise could therefore be granted by the Central Government under Rule 8(1) in the same manner in which it could be granted in relation to the duty of excise payable under the Central Excises and Salt Act, 1944. The argument of the respondents based on this premise was that the reference to Rule 8(1) as the source of the power under which the notifications dated August 1, 1974 and March 1, 1981 were issued could not therefore be relied upon as indicating that the duty of excise from which exemption was granted under these two notifications was limited only to the duty of excise payable under the Central Excises and Salt Act, 1944 and the expression “duty of excise” in these two notifications could legitimately be construed as comprehending   special   duty   of   excise.   This   argument   is,   in   our opinion, not well­founded and cannot be sustained. It is obvious that when a notification granting exemption from duty of excise is issued by the Central Government in exercise of the power under Rule 8(1) simpliciter, without anything more, it must, by reason of the   definition   of   ‘duty’   contained   in   Rule   2   clause   (v)   which according to the well recognised canons of construction would be projected in Rule 8(1), be read as granting exemption only in respect of duty of excise payable under the Central Excises and Salt Act, 1944. Undoubtedly, by reason of sub­section (4) of Section 32 of the Finance Act, 1979 and similar provision in the other Finance Acts, Rule   8(1)   would   become   applicable   empowering   the   Central Government  to   grant  exemption   from  payment of  special  duty  of excise, but when the Central Government exercises this power, it would   be   doing   so   under   Rule   8(1)   read   with   sub­section   (4)   of Section 32 or other similar provision. The reference to the source of 34 power in such a case would not be just to Rule 8(1), since it does not of its own force and on its own language apply to granting of exemption   in   respect   of  special   duty   of  excise,  but  the  reference would have to be to Rule 8(1) read with sub­section (4) of Section 32 or other similar provision. It is significant to note that during all these  years,  whenever  exemption   is sought  to   be  granted  by  the Central   Government   from   payment   of   special   duty   of   excise   or additional duty of excise, the recital of the source of power in the notification   granting   exemption   has   invariably   been   to   Rule   8(1) read with the relevant provision of the statute levying special duty of excise or additional duty of excise, by which the provisions of the Central Excises and Salt Act, 1944 and the rules made thereunder including   those   relating   to   exemption   from   duty   are   made applicable.   Take   for   example,   the   Notification   bearing   No.   63/78 dated   August   1,   1978   where   exemption   is   granted   in   respect   of certain excisable goods “from the whole of the special duty of excise leviable thereon under sub­clause (1) of clause 37 of the Finance Bill, 1978”.   The source of the power recited in this notification is “sub­rule (1) of Rule 8 of the Central Excise Rules, 1944 read with sub­clause (5) of clause 37 of the Finance Bill, 1978”. So also in the Notification   bearing   No.   29/79   dated   March   1,   1979   exempting unmanufactured   tobacco   “from   the   whole   of   the   duty   of   excise leviable thereon both under the Central Excises and Salt Act, 1944 and Additional Duties of Excise (Goods of Special Importance) Act, 1957”,   the   reference   to   the   source   of   power   mentioned   in   the opening   part   of   the   notification   is   “sub­rule   (1)   of   Rule   8   of   the Central Excise Rules, 1944 read with sub­section (3) of Section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957”. The respondents have in fact produced several notifications granting exemption in respect of special duty of excise or additional duty of excise and in each of these notifications, we find that the source of power is described as sub­rule (1) of Rule 8 of the Central Excise Rules, 1944  read with  the relevant provision of the statute levying special duty of excise or additional duty of excise by which the provisions of the Central Excises and Salt Act, 1944 and the Rules made thereunder including those relating to exemption from duty are made applicable. Moreover, the exemption granted under all these notifications specifically refers to special duty of excise or additional duty of excise, as the case may be. It is, therefore, clear that where a notification granting exemption is issued only under sub­rule (1) of Rule 8 of the Central Excise Rules, 1944 without reference to any other statute making the provisions of the Central Excises   and   Salt   Act,   1944   and   the   Rules   made   thereunder applicable   to   the   levy   and   collection   of   special,   auxiliary   or   any other kind of excise duty levied under such statute, the exemption must be read as limited to the duty of excise payable under the Central Excises and Salt Act, 1944 and cannot cover such special, auxiliary or other kind of duty of excise. The notifications in the present case were issued under sub­rule (1) of Rule 8 of the Central 35 Excise   Rules,   1944   simpliciter   without   reference   to   any   other statute   and   hence   the   exemption   granted   under   these   two notifications must be construed as limited only to the duty of excise payable under the Central Excises and Salt Act, 1944.” This   Court   in  <cite>Modi   Rubber   Limited  (supra)</cite>   has   also   considered when the exemption is granted under the particular provision; it would not cover any other kind of duty of excise imposed under separate Acts. This Court observed thus: “10. We may incidentally mention that in the appeals a question of interpretation was also raised in regard to the Notification bearing No. 249/67 dated November 8, 1967 exempting tyres for tractors from “so much of the duty leviable thereon under item 16 of the First Schedule to the Central Excises and Salt Act, 1944 as is in excess   of   15   per   cent”.   The   argument   of   the   respondents   in   the appeals was that the exemption granted under this notification was not limited to the duty of excise payable under the Central Excises and Salt Act, 1944 but it also extended to special duty of excise, additional duty of excise and auxiliary duty of excise leviable under other enactments. This argument plainly runs counter to the very language   of   this   notification.   It   is   obvious   that   the   exemption granted under this notification is in respect of “so much of the duty leviable thereon under item 16 of the First Schedule to the Central Excises and Salt Act, 1944 as is in excess of 15 per cent” and these words describing the nature and extent of the exemption on their plain natural construction, clearly indicate that the exemption is in respect of duty of excise leviable under the Central Excises and Salt Act, 1944 and does not cover any other kind of duty of excise. No more   discussion   is   necessary   in   regard   to   this   question   beyond merely referring to the language of this notification.” The appeals were allowed, and it was held that exemption was not available in respect of special duty of excise or additional duty of excise or auxiliary duty of excise.  A three­Judge Bench in <cite>Rita Textiles Private Limited v. Union of India, 1986 SCC Supp. 557</cite>, has followed the decision 36 of  <cite>Modi Rubber Limited  (supra)</cite>.   The decision in  <cite>Modi Rubber Limited (supra)</cite>   squarely   covers   the   issue   and   is   rendered   by   a   Co­ordinate Bench. 39. Rule   8   of   Central   Excise   Rules,   1944,   authorises   the   Central Government to grant an exemption to any excisable goods from the whole or   any   part   of   duty   leviable   on   such   goods.     Rule   8   is   extracted hereunder: “8. Power to authorise an exemption from duty in special cases.—(1) The Central Government may from time to time, by notification in the official Gazette, exempt (subject to such conditions as may be specified in the notification) any excisable goods from the whole or any part of duty leviable on such goods. (2) The Central Board of Excise and Customs may by special order   in   each   case   exempt   from   the   payment   of   duty,   under circumstances of an exceptional nature, any excisable goods.” The word ‘duty’ is defined under Rule 2(v) to mean the duty as levied under the Act. 40. Notification   dated   9.9.2003   issued   in   the   present   case   makes   it clear that exemption was granted under Section 5A of the Act of 1944, concerning additional duties under the Act of 1957 and additional duties of excise under the Act of 1978.  It was questioned on the ground that it provided for limited exemption only under the Acts referred to therein. There   is   no   reference   to   the   Finance   Act,   2001   by   which   NCCD   was 37 imposed, and the Finance Acts of 2004 and 2007 were not in vogue.  The notification was questioned on the ground that it should have included other   duties   also.     The   notification   could   not   have   contemplated   the inclusion of education  cess and secondary  and higher education cess imposed by the Finance Acts of 2004 and 2007 in the nature of the duty of excise.  The duty on NCCD, education cess and secondary and higher education cess are in the nature of additional excise duty and it would not   mean   that   exemption   notification   dated   9.9.2003   covers   them particularly when there is no reference to the notification issued under the Finance Act, 2001.   There was no question of granting exemption related to cess was not in vogue at the relevant time imposed later on vide Section 91 of the Act of 2004 and Section 126 of the Act of 2007. The provisions of Act of 1944 and the Rules made thereunder shall be applicable to refund, and the exemption is only a reference to the source of  power  to  exempt  the  NCCD,  education  cess,   secondary  and   higher education cess.  A notification has to be issued for providing exemption under   the   said   source   of   power.   In   the   absence   of   a   notification containing   an   exemption   to   such   additional   duties   in   the   nature   of education cess and secondary and higher education cess, they cannot be said to have been exempted.  The High Court was right in relying upon the decision of three­Judge Bench of this Court in <cite>Modi Rubber Limited 38 (supra)</cite>, which has been followed by another three­Judge Bench of this Court in <cite>Rita Textiles Private Limited (supra)</cite>. 41. The   Circular   of   2004   issued   based   on   the   interpretation   of   the provisions made by one of the Customs Officers, is of no avail as such Circular has no force of law and cannot be said to be binding on the Court.   Similarly, the Circular issued by Central Board of Excise and Customs  in 2011, is of no avail as it relates to service tax and has no force   of   law   and   cannot   be   said   to   be   binding   concerning   the interpretation of the provisions by the courts.   The reason employed in <cite>SRD Nutrients Private Limited  (supra)</cite> that there was nil excise duty, as such, additional duty cannot be charged, is also equally unacceptable as additional duty can always be determined and merely exemption granted in   respect   of   a   particular   excise   duty,   cannot   come   in   the   way   of determination   of   yet   another   duty   based   thereupon.     The   proposition urged that simply because one kind of duty is exempted, other kinds of duties automatically fall, cannot be accepted as there is no difficulty in making the computation of additional duties, which are payable under NCCD, education cess, secondary and higher education cess.   Moreover, statutory notification must cover specifically the duty exempted. When a particular kind of duty is exempted, other types of duty or cess imposed 39 by different  legislation for a different purpose cannot be said to have been exempted. 42. The decision of larger bench is binding on the smaller bench has been held by this Court in several decisions such as <cite>Mahanagar Railway Vendors’ Union v. Union of India & Ors. (1994) Suppl. 1 SCC 609</cite>, <cite>State of Maharashtra & Ors. v. Mana Adim Jamat Mandal, AIR 2006 SC 3446</cite> and <cite>State of Uttar Pradesh & Ors. v. Ajay Kumar Sharma & Ors.  (2016) 15 SCC 289</cite>.   The decision rendered in ignorance of a binding precedent and/or   ignorance   of   a   provision   has   been   held   to   be  per  incuriam  in <cite>Subhash Chandra & Ors. v. Delhi Subordinate Services Selection Board & Ors.  (2009)   15   SCC   458</cite>,  <cite>Dashrath   Rupsingh   Rathod   v.   State   of Maharashtra  (2014) 9 SCC 129</cite>, and  <cite>Central Board of Dawoodi Bohra Community & Ors. v. State of Maharashtra & Ors. (2005) 2 SCC 673</cite>.  It was held that a smaller bench could not disagree with the view taken by a larger bench.   43. Thus,   it   is   clear   that   before   the   Division   Bench   deciding  <cite>SRD Nutrients   Private   Limited</cite>   and   <cite>Bajaj   Auto   Limited  (supra)</cite>,   the   previous binding decisions of three­Judge Bench in <cite>Modi Rubber (supra)</cite> and <cite>Rita Textiles Private Limited (supra)</cite> were not placed for consideration.  Thus, 40 the decisions in  <cite>SRD Nutrients Private Limited</cite> and <cite>Bajaj Auto Limited</cite> (supra) are clearly  per incuriam. The decisions in  <cite>Modi Rubber  (supra)</cite> and  <cite>Rita Textiles Private Limited  (supra)</cite> are binding on us being of Co­ ordinate Bench, and we respectfully follow them.   We did not find any ground to take a different view.  44. Resultantly, we have no hesitation in dismissing the appeals.  The judgment and order of the High Court are upheld, and the appeals are dismissed. No costs. 

1. 2. The appellant approached this Court, aggrieved by the reversal of the decree of nullity granted to him by the trial court. When the matter came up before this Court, the parties agreed for a mediation before the Supreme Court Mediation Center. We are happy to note that the parties have arrived at an amicable settlement. The settlement agreement dated 14.05.2018, duly signed by the parties and their respective counsel and also the learned mediator, is taken on record and shall form part of this Judgment. 3. Today, in terms of the settlement, the appellant has handed over a Demand Draft, bearing No. 172275 dated 09.05.2018, to the tune of Rs. 8,50,000/- (Rupees Eight Lakhs and Fifty Thousand) in the name 2 of Neeru Mishra, drawn on State Bank of India, which has been duly acknowledged by the respondent. We direct the parties to strictly abide by the other terms of settlement. Since the parties have settled their disputes, we 4. do not find it necessary that the parties should continue with the litigations. Accordingly, the proceedings in the following cases, as mentioned in the settlement agreement, are quashed:- (i) Case No. 3006 of 2012 – Neeru Mishra Vs. Santosh Mishra & Ors. under Section 417 IPC pending before 7th ACMM Kanpur Nagar, Uttar Pradesh. (ii) Case No. 609 of 2013 – Neeru Mishra Vs. Santosh Mishra & Ors. under Section 406 IPC pending before 4th M. M. Kanpur Nagar, Uttar Pradesh. (iii)Case No. 1349 of 2013 – State Vs. Santosh Mishra & Ors. under Sections 498A, 323, 504 IPC and Sections 3 and 4 of D.P. Act, Mahila Thana, Kanpur Nagar, Uttar Pradesh. (iv) Case No. 1829 of 2017 – Smt. Neeru Mishra Vs. Santosh Kumar Mishra under Section 9 of Hindu 3 Marriage Act pending before the Principal Judge, Family Court, Kanpur Nagar, Uttar Pradesh. 5. The following cases are dismissed: (i). Case No. 20013 of 2008 – under Section 482 Cr.P.C. pending before the High Court of Allahabad, Uttar Pradesh. (ii) Case No. 2370 of 2009 – under Section 492 Cr.P.C. pending before the Allahabad High Court, Uttar Pradesh. (iii) Case No. 32437 of 2008 under Section 482 Cr.P.C. pending in the High Court of Allahabad, Uttar Pradesh. (iv) Case No. 8828 of 2009 under Section 482 Cr.P.C. pending in the High Court of Allahabad, Uttar Pradesh. (v) Criminal Revision Case No. 4472 of 2010 under Section 417 of IPC pending before the High Court of Allahabad, Uttar Pradesh. 4 (vi) Criminal Revision Case No. 5729 of 2010 under Section 125 Cr. P.C. pending before High Court of Allahabad, Uttar Pradesh. (vii) Criminal Case No. 741 of 2013 under Section 12 D. V. Act pending before the High Court of Allahabad, Uttar Pradesh. 6. We record our deep appreciation for the earnest efforts taken by Ms. Shalini Shishodia, learned counsel, and also the cooperation extended by the learned counsel for the parties for reaching an amicable settlement of the disputes. 7. In view of the above, this appeal is disposed of. </meta> 5 ITEM NO.56 COURT NO.5 SECTION III-A S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition for Special Leave to Appeal (C) No. 2899 of 2018 SANTOSH KUMAR MISHRA Appellant(s) VERSUS NEERU MISHRA Respondent(s) (FOR ADMISSION and I.R. and IA No.6037/2018-CONDONATION OF DELAY IN FILING SLP and IA No.6041/2018-CONDONATION OF DELAY IN REFILING SLP) Date : 17-05-2018 This petition was called on for hearing today. CORAM : HON'BLE MR. JUSTICE KURIAN JOSEPH HON'BLE MR. JUSTICE MOHAN M. SHANTANAGOUDAR For Appellant(s) Mr. Kislay Pandae, Adv. Mr. Rabin Majumdar, Adv. Mr. Joydeep Mukherjee, Adv. Ms. Manju Jetley, AOR For Respondent(s) Dr. Vinod Kumar Tewari, AOR Mr. Baijnath Prasad Pathak, Adv. Mr. Vivek Tiwari, Adv. Mr. Pankaj Kumar Singh, Adv. Mr. Pramod Tiwari, Adv. UPON hearing the counsel the Court made the following O R D E R Leave granted. </meta> The appeal is disposed of in terms of the signed non-reportable Judgment. Pending Interlocutory Applications, if any, stand disposed of.

2. One Vijender Singh along with two others Bhagwan Das and Manish, was travelling by a motor cycle on 10-12-2002. The said motor cycle was hit by a truck bearing registration No. RJ-14G- 1556, resulting in the death of both Vijender Singh and Bhagwan Das. Respondent No.1 is the wife, Respondents 2 to 5 are the children, Respondent No.6, we are informed, is the mother of the deceased Vijender Singh. Respondents 1 to 6 herein filed an application against the appellant herein and others for compensation. The appellant, admittedly, is the insurer of the abovementioned truck. A huge claim of Rs.1,86,30,000/-, was 2 made towards compensation on the ground that the deceased Vijender Singh was earning more than Rs.35,000/- per month. The Tribunal, by its Judgment dated 06-02-2006, awarded an amount of Rs.10,00,000-00§ and provided for appropriate deductions for the amounts, which had already been paid and also gave necessary directions for safeguarding the interest of the minor children. 3. From the Judgment of the Tribunal it appears that the claimants based their claim on the facts that the deceased Virender Singh was the owner of three vehicles (mini buses) and also certain agricultural land. It appears from the record that no evidence regarding the amount of income derived from the above mentioned properties is adduced. The only evidence available is the statement of the 1st respondent that the deceased used to give her an amount of Rs.35,000/- per month. She also admitted in her cross examination that the deceased was not filing any income tax returns. Therefore, the Tribunal reached a conclusion that the  The petitioners are not entitled to any other compensation and they are held entitled to receive the following amount of compensation: 1. Rs.9,60,000.00 2. 10,000.00 25,000.00 3. 4. 5,000.00 On a/c of loss of dependency from income = For loss of consortium to Petitioner No.1 = For loss of love and affection to petitioner No.2 to 6 @ 5000/- each = For funeral expenses = Rs. Rs. Rs. Total ----------------------- Rs. 10,00,000.00 3 statement of the 1st respondent, that the deceased was earning more than Rs.35,000/-, cannot be believed. However, the Tribunal opined as under: “Thus keeping in view the fact of ownership of two buses and one bus given on contract and the agriculture land it can be said that the deceased was earning Rs.3900/-per month in the capacity of the driver of a bus. Keeping in view the remaining buses and agriculture land it will be appropriate to hold the income of the deceased at Rs.7380/- because in case he would have earned more than the said amount, he must have filed the income tax return. If the deceased would remain alive he must have spent 1/3rd upon himself, therefore it would be appropriate to hold the monthly dependency at Rs.5000/-.” 4. Aggrieved by the said determination of the compensation made by the Tribunal, the claimants as well as the appellant herein carried the matter in Appeal to the High Court of Rajasthan. Admittedly, the Appeal preferred by the appellant herein was dismissed, whereas the Appeal preferred by the claimants (S.B. Civil Misc. Appeal No.1222 of 2006) was partially allowed modifying the Award of the Tribunal. The High Court by its Judgment dated 30-01-2009 opined that the deceased Vijender Singh’s income should be taken at Rs.24,000/- per month of which 1/3rd is treated to be an amount, which the deceased would have spent on himself and the balance on the claimants. Therefore, the High Court concluded that the claimants are entitled for a compensation of Rs.30,72,000/-, and directed: “However, the rest of the award is confirmed. The Insurance Company is directed to pay the enhanced amount along with an interest @ 6% per annum from the date of the filing of the claim petition i.e. 24.3.03 till the realization 4 to the claimants within a period of two months. The learned Tribunal is directed to insure that the enhanced amount of compensation is paid to the claimants within a period of two months from the date of receipt of the certified copy of this judgment.” Hence, the present Appeal. 5. The learned counsel for the appellant Sri M.K. Dua argued that the High Court grossly erred in coming to a conclusion that the income of the deceased should be determined at Rs.24,000/- per month. Such a determination is without any factual basis or evidence on record and therefore, contrary to the principle of law laid down by this Court in a catena of decisions, more particularly, in <cite>State of Haryana & Anr. Vs. Jasbir Kaur & Ors., (2003) 7 SCC 484</cite>, and, therefore, the Judgment under appeal cannot be sustained. 6. On the other hand, it is very strenuously argued by Sri Ashwani Garg, learned counsel for the claimants, that in view of the fact that there are six dependents on the deceased, of whom, four are school-going children, who are required to be educated by the 1st respondent widow, the High Court rightly enhanced the compensation and the Judgment under Appeal does not call for any interference by this Court. 7. This Court in <cite>Jasbir Kaur case (supra)</cite> held that the Tribunal is required to make a just and reasonable Award determining the compensation to be paid to the dependents of the victim of a fatal motor vehicle accident. Explaining the concept of just and 5 reasonable Award in the context of a motor vehicle accident claim, this Court held as follows: “It has to be kept in view that the Tribunal constituted under the Act as provided in Section 168 is required to make an award determining the amount of compensation which is to be in the real sense "damages" which in turn appears to it to be 'just and reasonable'. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. But at the same time it has be to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate the compensation must be "just" and it cannot be a bonanza: not a source of profit; but the same should not be a pittance. The Courts and Tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be "just" compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of "just" compensation which is the pivotal consideration. Though by use of the expression "which appears to it to be just" a wide discretion is vested on the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The expression "just" denotes equitability, fairness and reasonableness, and non-arbitrary. If it is not so it cannot be just. (See Helen C. Rebello Vs. Maharashtra State Road Transport Corporation, AIR1998SC3191).” 8. Keeping the above principle in view, we must now examine the correctness of the conclusion arrived at by the Judgment under Appeal that the income of the deceased Virender Singh is to be taken at Rs.24,000/- per month. The reasoning of the High Court in that regard is as follows: 6 “ While trying to assess his income, the learned Tribunal has conclused that as a driver he must have been earning Rs.3900/- per month and his total income would have been 7500/- per month. However, considering the fact that Vijendra Singh would have earned Rs.3900/- per month as a driver, it is difficult to believe that he would have earned merely Rs.3600/- from the two buses owned by him. There is no evidence produced by the respondent No.3 to show that the buses were not being plied. Considering the lack of transportation buses are plied. Thus, it is difficult to believe that in the transportation business, owner of two buses would have earned merely Rs.3600/- per month from two buses. Therefore, the logic of the learned Tribunal is highly questionable. If the figure of Rs.3900/- has a reasonable assessment of the salary of a driver, obviously the owner of two buses would have earned more than Rs.3900/- to the driver of his own bus. Thus, a reasonable assessment would be that the owner of bus would be earning atleast Rs.10,000/- from each bus. Therefore, Vijendra Singh’s income should be taken as Rs.23,900/- per month or Rs.24,000/- in the round.” In other words, in view of the Tribunal’s conclusion that Vijender Singh was earning an amount of Rs.3900/- in his capacity as the driver of the bus per month, the High Court reached the conclusion that in his capacity as the owner of three buses, he must be deriving a much higher income from the buses. We agree with the logic of the High Court. However, the quantum of such income would depend upon various factors, such as; whether it is a stage carriage or a contract carriage, the condition of the bus, its seating capacity, the route on which it is plying, the cost of maintenance, the taxes to be paid on such business etc. But, the question is whether the income (either gross or net) derived by the owner of a bus could legally form the basis for determining the amount of compensation payable to his dependents, if he happens to die in a motor vehicle accident. 7 9. In our opinion, such an income cannot form the legal basis for determining the compensation. 10. In <cite>Jasbir Kaur case (supra)</cite>, the claim was based on an assertion that the deceased was an agriculturist earning an amount of Rs.10,000/- per month by cultivating his land. Dealing with the question, this Court held: “8. xxxxxxxxx. The land possessed by the deceased still remains with the claimants as his legal heirs. There is however a possibility that the claimants may be required to engage persons to look after agriculture. Therefore, the normal rule about the deprivation of income is not strictly applicable to cases where agricultural income is the source. Attendant circumstances have to be considered.” 11. Coming to the case on hand, the claim is based on the assertion that the deceased owned agricultural land apart from the abovementioned three mini-buses. The High Court rejected the claim insofar as it is based on the income from the land, on the ground that the income would still continue to accrue to the benefit of the family. Unfortunately, the High Court failed to see that the same logic would be applicable even to the income from the abovementioned three buses. The asset (three mini-buses) would still continue with the family and fetch income. The only difference, perhaps, would be that during his life time the deceased was managing the buses, but now, the claimants may have to engage some competent person to manage the asset, which, in turn, would require some payment to be made to such a manager. To the extent of such payment, there would be a depletion in the net 8 income accruing to the claimants out of the asset. Therefore, the amount required for engaging the service of a manager and the salary payable to a driver – as it is asserted that the deceased himself used to drive one of the three buses – would be the loss to the claimants. In the normal course the claimants are expected to adduce evidence as to what would be the quantum of depletion in the income from the abovementioned asset on account of the abovementioned factors. Unfortunately, no such evidence was led by the claimants. 12. In the circumstances, the Judgment under Appeal cannot be sustained as the finding of the High Court that the claimants lost an amount of Rs.16,000/- per month due to the death of Vijender Singh is neither based on any evidence nor the logic adopted by the High Court for arriving at such a conclusion is right. In the normal course, the matter should have been remitted to the Tribunal for further evidence for ascertaining of the basis upon which the compensation is to be determined. But having regard to the fact that the accident occurred a decade ago, we do not propose to remit the matter for further evidence. 13. The High Court opined that the deceased would have contributed an amount of Rs.16,000/- per month to the dependents, whereas the Tribunal opined that the deceased would have contributed an amount of Rs.5,000/-. Both the Courts below proceeded to arrive at the abovementioned amounts on the basis 9 that as a driver of one of the buses, he was getting a salary of Rs.3,900/- per month. In the circumstances, making a reasonable conjecture that somebody to be employed for the purpose of managing the business of the three mini-buses, would certainly demand a higher salary than a driver, we think it reasonable to notionally fix the salary of such manager at Rs.10,000/- per month. The said amount coupled with the salary of one driver, i.e., Rs.3,900/- would be the loss sustained by the family from the income arising out of the asset. Computed on the basis of the said figure and applying the same multiplier of 16 which was applied by both the courts below, the amount of compensation payable to the claimants would be: 13,900 x 12 x 16 = Rs.26,68,800/- 14. The Judgment under Appeal shall stand modified accordingly and remain unaltered in all other respects. Appeal stands disposed of.

1. Respondent was appointed as a Lower Division Clerk in the Public Works Department on 25.9.1971. He was promoted as Upper Division Clerk on 1.1.1979. 2. A departmental proceeding was initiated against him. He was placed under suspension by an order dated 4.9.1982. In the said order of suspension, it was clearly stipulated that subsistence allowance would be paid to him in terms of Rule 53 of the Fundamental Rules. On or about 19.6.1982, he was transferred from Katni to Barhi. He did not join at Barhi after the order of suspension was passed. It appears that a communication was issued to him on 5.10.1983 asking him to collect the subsistence allowance stating : \023You are suspended by the Superintending Engineer PWD (B&R) Jabalpur Circle, Jabalpur vide order No.1164/E-11-19 of 74 dated 4.9.82 and suspension order was sent to you, but you have refused to take it. (2) Charge sheet was issued by SEJC vide No.2067/E-11-19 of 74 dated 16.10.82, and sent through peon and 2 sub-Engineer of this Division, but you have refused to take it. (3) Executive Engineer, PWD (E/M) Dn. Jabalpur Enquiry officer of your D.E. case have served the notice for facing the DE and attending their office, but you have refused to take it. Please arrange to take the above letters from their officer and produced to the undersigned, so that further action, for sanction of suspension allowance and other dues, can be taken by this officer. Please also explain for your not joining in Barhi Sub Division with Head Quarters at Barhi after suspension & why your absence from Barhi should not be considered as willful absence from Head quarters and action taken accordingly.\024 3. For a few days, namely, on 2.11.1983, 22.11.1983, 9.12.1983 and 20.1.1984, he took part in the departmental proceedings. On those days, some witnesses on behalf of the department were examined and cross- examined. But on 24.2.1984, he absented himself. A telegram was sent to him asking him to submit his list of witnesses and defence on 12.3.1984. He did not comply therewith. He also did not take part in the departmental proceedings on 29.3.1984. Another chance was given to him to appear before the enquiry officer on 19.4.1984 but even on the said date he was not present. He although was present on 5.5.1984, but did not take part in the hearing in the said proceeding stating that he had filed an appeal before this Court. We may place on record that neither any number has been put in the said purported S.L.P. nor the same was registered, although according to the respondent, who had appeared in person before us, the said SLP was still pending. 4. On subsequent dates, he absented himself and, thus, did not take part in the enquiry proceedings. Out of 18 dates fixed for hearing, the respondent was present only on five days. In the aforementioned situation, an ex parte departmental proceeding was held wherein he was found guilty of the charges levelled against him. We may also place on record that he collected his subsistence allowance for the period 4.9.1982 to 20.9.1982 in January 1985 and thereafter payment till September 1984 was made in February 1987. His services, however, were terminated by an order dated 28.5.1985. The amount of subsistence allowance of the respondent was raised from 50% to 75% on 14.6.1985. 5. He preferred an appeal thereagainst which was dismissed by the Chief Engineer being the appellate authority on 15.11.1999. 6. An original application was filed by him before the State Administrative Tribunal wherein, inter alia, a question in regard to non- payment of subsistence allowance was raised. The Tribunal in its order opined : \023Therefore, the applicant himself is responsible for delayed payment of the subsistence allowance, not the respondents.\024 7. Other contentions raised by him before the Tribunal were also not accepted. The Tribunal held that the conclusion of the enquiry officer being based on evidence produced in the departmental enquiry, no case has been made out for interference with the order of the Disciplinary Authority. The original application was, therefore, dismissed. 8. On a writ petition preferred by the appellant thereagainst before the High Court of judicature at Madhya Pradesh at Jabalpur which was marked as Writ Petition No.1497 of 2002, a Division Bench of the High Court, however, held that non-payment of subsistence allowance amounted to violation of principles of natural justice, stating : \023The Tribunal dismissed the application on the ground that the Tribunal or Court are not the appellate forum to review the punishment. However, this fact cannot be marginalized and blinked away because it goes to the root of the matter and it has nexus with the principles of natural justice, that unless and until subsistence allowance is paid to the delinquent employee in proper time, how he could take proper steps in defending his case in the departmental enquiry. In the present case, the period during which the subsistence allowance was not paid was quite long which is 4.9.1982 to 13.11.1984. On the basis of the aforesaid premised reasons, we set aside the order passed by the Tribunal as well as the order terminating the services of the petitioner passed by the authority. The petitioner is hereby directed to be reinstated. However, looking to the entire facts and surrounding circumstances, we do not think it proper to award any back wages.\024 9. Ms. Vibha Datta Makhija, learned counsel appearing on behalf of the State, in support of this appeal would submit that the respondent having not shown any prejudice in regard to non-payment of the subsistence allowance, the High Court committed a serious error in passing the impugned judgment. 10. Respondent who appeared in person, on the other hand, contended that non-payment of subsistence allowance violates the right to life of a person as contained in Article 21 of the Constitution of India and in that view of the matter, it was obligatory on the part of the appellant herein to pay the said allowance. 11. Rule 53 of the Madhya Pradesh Fundamental Rules provides that subsistence allowance should be paid to an employee who has been placed under suspension. Payment of inadequate quantum of subsistence allowance has been adversely commented by this Court [See <cite>O.P. Gupta v. Union of India & Ors. [AIR 1987 SC 2257]</cite>. 12. It is, thus, not in dispute that all facilities for receipt of payment of subsistence allowance must be given to the delinquent officer. 13. An almost identical question in regard to payment of subsistence allowance albeit in a different fact situation came up before this Court in <cite>Jagdamba Prasad Shukla v. State of U.P. & Ors. [(2000) 7 SCC 90]</cite> wherein it was opined : \0236. It is evident from the record that the High Court is not right in observing that the ground sought to be urged was not taken in the claim petition or in the writ petition. In fact, the High Court in the latter part of the judgment observes that : \023for the first time, the petitioner has taken the ground in this writ petition that he could not attend the departmental proceedings due to financial crunch as he was not paid his subsistence allowance\024. A perusal of the record shows that the contention urged before the High Court and again before us, was also raised before the U.P. Public Service Tribunal and even earlier before the authorities. The U.P. Public Service Tribunal considered it and on the facts of the case, the Tribunal held that : \023Therefore, those rulings where person was unable to attend the enquiry for non- payment of subsistence allowance, resulting in inquiry being vitiated will not be applicable.\024 Apart from it, in reply dated 22-1-1979 sent to the show-cause notice, the appellant specifically stated that he has not been paid his pay and suspension allowance which cannot be withheld and as such how could he be expected to reach Gorakhpur or elsewhere due to shortage of funds. He further stated that : \023the applicant has requested a number of times for drawing his pay and suspension allowance, but the same could not be drawn and sent to the applicant which was a serious handicap to appear anywhere even if he so preferred during illness and even against the recommendations of his medical attendant\024. The request of the appellant for payment of subsistence allowance is also contained in his letter dated 31-3-1978 sent to the Superintendent of Police, Railways, Gorakhpur Section, Gorakhpur. The said letter also contains the address of the appellant. The address of the appellant is in fact contained on various communications sent by him to the respondents. It is curious that the respondents could serve all other communications including the show-cause notice to the appellant but insofar as the payment of subsistence allowance is concerned, the plea taken is that the appellant did not intimate his address and, therefore, the amount could not be sent. Thus, it is evident that despite repeated requests, the subsistence allowance was not paid to the appellant from the date of suspension till removal. It is also evident that the appellant had expressed difficulty in reaching the place of inquiry due to shortage of funds. 8. The payment of subsistence allowance, in accordance with the Rules, to an employee under suspension is not a bounty. It is a right. An employee is entitled to be paid the subsistence allowance. No justifiable ground has been made out for non-payment of the subsistence allowance all through the period of suspension i.e. from suspension till removal. One of the reasons for not appearing in inquiry as intimated to the authorities was the financial crunch on account of non- payment of subsistence allowance and the other was the illness of the appellant. The appellant in reply to the show-cause notice stated that even if he was to appear in an inquiry against medical advice, he was unable to appear for want of funds on account of non-payment of subsistence allowance. It is a clear case of breach of principles of natural justice on account of the denial of reasonable opportunity to the appellant to defend himself in the departmental enquiry. Thus, the departmental enquiry and the consequent order of removal from service are quashed.\024 14. We may, however, notice that in <cite>Indra Bhanu Gaur v. Committee, Management of M.M. Degree College & Ors. [(2004) 1 SCC 281]</cite>, a Bench of this Court opined that when an opportunity had been granted to the delinquent officer to take the subsistence allowance, it must be shown that because of non-payment thereof, he was not in a position to participate in the proceedings or that any other prejudice in effectively defending the proceedings was caused to him. 15. Yet again, in <cite>U.P. State Textile Corpn. Ltd. v. P.C. Chaturvedi,(2005) 8 SCC 211</cite>, it was held : \023Rule 41 provides that the subsistence allowance is payable only when the employee, if required, presents himself every day at the place of work. Obviously, for establishing that the employee had presented himself at the place of work, the authorities had clearly stipulated a condition that the attendance register was to be signed. No explanation was offered by Respondent 1 employee as to why he did not sign the register. It cannot be lightly brushed aside as technical and/or inconsequential. As admittedly, Respondent 1 employee had not signed the attendance register even though specifically required in the order of suspension, the High Court was not justified in coming to a conclusion that the non-signing was not consequential or a bona fide lapse. It is also to be noted that at various points of time the employer informed Respondent 1 employee about the consequences of his not signing the attendance register as stipulated in the order of suspension.\024 16. The High Court, in our opinion, committed a serious error in holding that the question of prejudice is irrelevant in so far as it misread and misinterpreted <cite>Jagdamba Prasad Shukla (supra)</cite>. No law in absolute terms in this connection was laid down therein. The relief was granted to the appellant having regard to the fact situation obtaining therein. It was found as of fact that no subsistence allowance, had been given. It was not established that communication in relation to subsistence allowance was, in fact, served upon the appellant therein and despite repeated requests, subsistence allowance was not paid. The fact that the Court therein opined that no justifiable ground has been made for non-payment of the subsistence allowance all through the period of suspension till removal, may, itself be a ground for arriving at the conclusion that the delinquent officer was suffering from financial crunch on account thereof as also his illness. 17. The High Court, therefore, in our opinion, was required to arrive at a correct finding of fact so as to enable it to pose unto itself the right question for arriving at a right decision. 18. Respondent, indisputably, has been found guilty of commission of misconduct. He, however, rightly or wrongly carried an impression that the writ petition filed by him before this Court presumably by sending a letter to the Chief Justice has been entertained. But, evidently, neither no such letter was received nor the same had been entertained by this Court. A finding of fact has been arrived at by the Tribunal that the respondent himself was to thank himself for non-receipt of subsistence allowance. It was held that the appellant had taken all possible steps for disbursement of subsistence allowance. 19. We, therefore, are of the opinion that in the peculiar facts and circumstances of the case, interest of justice shall be subserved if the impugned judgment is set aside and the matter is remitted to the High Court for consideration thereof afresh. The High Court may look into the records of the case so as to enable it to arrive at a decision whether non-payment of subsistence allowance caused any prejudice to the respondent in the event it intends to interfere with the finding of fact arrived at by the Tribunal that the respondent himself was responsible therefor. 20. However, we direct that in the peculiar facts and circumstances of this case, the State should pay a sum of Rs.50,000/- (Rupees fifty thousand only) to the respondent by way of litigation costs. The State shall also place before the High Court all relevant records. We would request the High Court to consider the desirability of disposing of the matter expeditiously. 21. The appeal is allowed to the aforesaid extent and with the aforesaid directions and observations.

2. The appellants are before this Court, aggrieved by the judgment of the Division Bench of the High Court remitting an industrial dispute to the Industrial Tribunal. There are two set of references before the Industrial Tribunal. In Civil Appeal No......... @ SLP(c) No.23494/2012, the reference is as follows:- 1 “1. Whether the 22 contract labour as per Annexure 'A' are performing permanent and perennial nature of job in the establishment of ONGC Ltd. Sibsagar and are entitled for regular employment in ONGC if so, to what relief they are entitled? Whether the contract labour as per Annexure 2. 'B' are performing same or similar nature of work as being performed by any of the regular employee of ONGC Ltd. Sibsagar and are entitled for wages and the benefits as is admissible to other contract labour under Rule 25(2)(v)(a) of the C.L. (RIA) cum Central Rules, 1971? If so, to what relief they are entitled?” In Civil Appeal No......... @ SLP(c) 3. No.23495/2012, the reference reads as follows:- “Whether the claim of ONGC Contractual Mazdoor Sangha Lakwa regarding regularization of services of their members (who are working as contractual workers) in ONGC Ltd. at Lakwa is justified? If so, to what relief, the workmen are entitled?” 4. The Industrial Tribunal passed an award directing regularization of the workers. The same was upheld by the learned Single Judge. 5. However, the Division Bench took the view that the matter needs a fresh look by the Industrial Tribunal in the light of the decision in <cite>Steel Authority of India Ltd. & Ors. v. National Union Waterfront Workers & Ors., reported in (2001)</cite> 7 2 Aggrieved, the workmen represented by their SCC 1. The Bench took the view that the Industrial Tribunal needs to decide as to whether there was a genuine contract. 6. Associations are before this Court. 7. We have heard Mr. Pravir Choudhury, learned counsel appearing for the appellant, Mr. J.P. Cama, learned senior counsel appearing for the ONGC and Ms. Kiran Suri, learned senior counsel appearing for the Union of India, assisted by other counsel. 8. On going through the award passed by the Industrial Tribunal and detailed analysis made by the learned Single Judge, we find that there is hardly any scope for the Industrial Tribunal to adjudicate on any further aspect. All relevant aspects have been considered meticulously by the learned Single Judge. Being a writ proceedings, the Division Bench was called upon, in the intra court appeal, primarily and mostly to consider the correctness or otherwise of the view taken by the learned Single Judge. Hence, in our view, the Division Bench needs to consider the appeal(s) on merits by deciding on the correctness of the judgment of the learned Single Judge, instead of remitting the matter to the Tribunal. 9. In that view of the matter, we set aside the impugned judgments of the Division Bench and remit the matters to the High Court. We request the Division Bench to dispose of the writ appeals on merits expeditiously, preferably within six months from today. 10. The appeals are, accordingly, disposed of. 3 11. Pending applications, if any, shall stand disposed of. 12. There shall be no orders as to costs.

1. The petitioner, who is an Advocate practicing in this Court, has filed the writ petition under Article 32 of the Constitution of India against various officers of the Registry of this Court and the Union of India.  Prayer has been made   to   issue   an   appropriate   Writ,   Order   or   Direction   in   the   nature   of Mandamus directing the respondents not to give preference to the cases filed by influential lawyers/ petitioners, law firms, etc.  Prayer has been made to direct the respondents to give equal treatment to the cases filed by ordinary lawyers/ petitioners and not to point out unnecessary defects, refund the excess court fee and other charges, and not to tag the cases without order or direction of the Court with other cases.   A prayer has also been made to direct the Secretary General of this Court to take action against the erring officers for their involvement in the listing, clearing, and bench hunting.  2 2. It is averred in the petition that equal treatment has not been given to the ordinary lawyers/ litigants. They favour some law firms or Advocates for reasons best known to them. 3. The petitioner's first instance is that a Writ Petition (Civil) D. No.10951 of  2020   was  filed   by   him   on   16.4.2020.     The   Registry  pointed   out  three defects, i.e. (1) Court Fee of Rs.530 was not paid, (2) Documents to be placed as per index, and (3) Details given in index were incomplete and annexures were   not  filed,   matter   to   be   rechecked.     The   petitioner   had   clarified   vide email dated 18.4.2020 that he had paid the court fee of Rs.730/­ and there was no annexure with the petition. However, the petitioner was forced to pay more court fees to get the matter listed.   Despite the letter of urgency, the Registry failed to register and list the writ petition.  The petitioner requested the  Secretary,   Supreme  Court  Bar Association,  about  not  listing  the  writ petition. On 27.4.2020, the writ petition was listed before the Court.   4. The   second   instance   given   by   the   petitioner   is   that   a   Writ   Petition (Civil) D.No.11236 of 2020 was filed on 12.5.2020, which has not been listed by the Registry till today. He was informed that there were no defects in the writ petition, but a copy of the writ petition was missing.   After that, no update was given by the Registry. 5. The third instance given is about Writ Petition (Civil) No.522 of 2020 (Diary No.11552 of 2020) filed by the petitioner on 20.05.2020.  The Dealing 3 Assistant pointed out defects on 26.5.2020.  The defects were pointed out by the   Dealing   Assistant   after   six   days   of   filing,   though   the   application   for urgency   was   filed   in   the   petition.     The   following   note   was   made   by   the Registry: “MATTER NEEDS TO BE RECHECK AS WHOLE INDEX IS BLANK, PETITION, AFFIDAVIT, VAKALATNAMA, MEMO OF APPEARANCE AND APPLICATION ALL ARE UNSIGNED AND DEFICIT COURT FEE ETC.” The   petitioner   clarified   that   the   signed   documents   were   already uploaded.   The matter was urgent, and he had uploaded them again along with signed documents on 26.5.2020.  Again the defects were pointed out on 29.5.2020 by the Dealing Assistant to the following effect: “APPLICATION IS NOT PROPER AS HEADING NOT TALLY WITH INDEX AND BE SPECIFIC ABOUT THE SUBJECT AND PRAYER OF APPLICATION.” The petitioner cured the defects on 29.5.2020.  After that, the Dealing Assistant did not recheck the matter.   On 2.6.2020, the petitioner made a call   and   requested   the   Branch   Officer   concerned   to   direct   the   Dealing Assistant to recheck the matter.   On 2.6.2020, the matter was rechecked and   numbered   as   Diary   No.11552   of   2020.   The   case   was   verified   on 6.6.2020 and listed for 6.7.2020 (computer­generated) which would make the case infructuous.  The application for urgency was not considered.  The petitioner was informed that the case was likely to be listed on 6.7.2020.  He sent an email about the urgency.   The Registry was not willing to list the 4 Diary No.11552 of 2020 despite the application for urgency.  Hence, the writ petition has been filed.  6. It is averred that on 23.4.2020, W.P. Diary No.11006 of 2020 titled as <cite>Arnab Ranjan Goswami v. UOI</cite> was filed at 8.07 p.m. without annexure.  The Registry   had   chosen   not   to   point   out   any   defects,   and   a   special supplementary list was uploaded on the same day.   The category was not specified in the notification to be heard during a nationwide lockdown. No procedure   was   followed   by   the   Registry   for   urgent   hearing   during   the lockdown.    The  petitioner made a complaint to  Secretary­General against illegal activities of the Registry but the same is without response.   7. We have heard the petitioner.   The present writ petition was initially listed for 18.6.2020, however on 17.6.2020; a letter was circulated by the petitioner  that  he was  under the impression  that Registry  would call the petitioner   to   interact   with   the   Registrar   in   order   to   appear   and   argue   in person as per the procedure. Still, it was not intimated to the petitioner that Registry exempted the petitioner, and there was no need to interact with the Registrar.  The petitioner was out of Delhi due to pre­arrangement and did not carry a soft or hard copy of the writ petition to argue the matter.   The petitioner also prayed for time of six weeks to file annexure/ evidence,  i.e., complaint/ reminder concerning de­tagging of Writ, delay in checking and rechecking   the   matters,   application,   and   reply   under   RTI   regarding   de­ tagging, proof of excess court fee, etc. to prove his submissions before this Court.  The prayer to adjourn the case was declined, and the case was listed 5 for hearing on 19.6.2020.  The petitioner was heard in person.  He repeated the facts about the discrimination being meted out by the Registry of not listing the cases promptly.  8. We   have   also   perused   the   files   of   the   cases.   Writ   Petition   (C)   D. No.10951 of 2020 was filed on 17.4.2020 during the nationwide lockdown, under Article 32 of the Constitution of India with a prayer for the One Nation One   Ration   Card   Scheme.   It   was   heard   and   decided   on   27.4.2020.     The Union   of   India   was   directed   to   examine   whether   it   was   feasible   for   it   to implement the Scheme at this stage or not and take appropriate decision in this regard, keeping in view the present circumstances.   Accordingly, the writ petition was disposed of. 9. Although defects were noted, Writ Petition (C) Diary No.10951 of 2020 was   listed,   heard,   and   finally   decided   on   27.4.2020.     It   was   filed   on 17.4.2020.  18th and 19th April 2020 were the holidays. There were only five working days, and during the nationwide lockdown, the court functioning was minimal.  The case was mentioned in the cause list on 26.4.2020 to be listed on 27.4.2020. Thus, it could not be said that there was delay much less   inordinate   one   by   the   officials   of   the   Registry   in   listing   the   matter mentioned above. 10. Concerning the second instance,  i.e., Diary No.11236 of 2020, which was filed by petitioner on 9.5.2020, the Registry has noted several defects on 14.5.2020.  The petition is still lying with defects.   6 11. Concerning the third instance i.e., Writ Petition No.522 of 2020 (D. No.11552  of  2020),  the  same  was  filed  on 20.5.2020.    Again,  a defective petition and defects were pointed out by the Registry on 26.5.2020 that the whole   index   was   blank.   Petition,   Affidavit,   Vakalatnama,   Memo   of Appearance, and Application were all unsigned with a deficit court fee, etc. The   petitioner   removed   the   defects.   However,   other   defects   were   caused, such as the application filed was not proper as heading did not tally with the index, and specific subjects and prayers were not mentioned.   The defects were re­cured, and the petition was re­filed on 3.6.2020.   The matter was processed   and   listed   on   9.6.2020   and   was   heard   and   dismissed   on 12.6.2020 as other matters on the similar issues were pending as such the matter was not considered to be necessary.  The petitioner has not disclosed about listing of the case for 12.6.2020, and its decision and averred that the computer­generated   date   was   6.7.2020.     The   Registry   did   not   follow   the computer­generated date, and the case was listed for 12.6.2020 on which it was dismissed.   The petitioner himself was responsible for 12­13 days of delay in removing the defects. 12. As to case of <cite>Arnab Goswami</cite>, it was listed urgently in view of order of competent authority.  It pertained to liberty and freedom of media. 13. In   the   aforesaid   circumstances,   considering   the   ongoing   pandemic caused   by   COVID­19,   the   Registry   of   this   Court   is   working   with   less strength, and because of the facts described above and circumstances, we find that there was no justification for the petitioner to allege discrimination 7 vis­à­vis  to him and to favour any particular individual. The defects were there in all the three cases filed by the petitioner. 14. The petitioner has filed this writ application in a hurry. When it was listed, he circulated a letter to the effect that, as per procedure, he expected that he would be called for interaction by Registrar of this Court to find out his fitness whether he could argue a case in person. The petitioner ought to know that he is an Advocate of this Court and argues the matter in this Court.   As such, it was not necessary to summon him for adjudging his capability   as   to   whether   he   could   argue   the   case.   Be   that   as   it   may. Circulating   such   a   letter   was   not   appropriate   at   his   stance   and   why   he doubted his ability to argue.  There was no justification to entertain this kind of apprehension in mind.  He ought to have been careful in circulating such a letter seeking a wholly unjustified adjournment. 15. In the letter circulated by him, it was further stated that he wanted to collect the evidence and to file it, and for that purpose, he prayed for six weeks’ time.  The conduct indicates that the petitioner was careless and not serious while he made the allegations.  He filed writ application without due inquiries, and without collecting the requisite material.   Such conduct was least  expected  of  an  officer  of  this  Court.    Petitioner ought to have  been careful before cast of unnecessary aspersions on the Registry and staff of this Court. 16. The   petition   as   filed   could   not   be   said   to   be   maintainable.   The 8 petitioner   has   impleaded   the   Secretary   General,   various   Registrars,   and officers of the Registry, SCBA, and Union of India in his writ application. In contrast, Writ is filed against this Court itself. He ought to have impleaded the   Supreme   Court   of   India   in   the   Writ   application   through   Secretary­ General.     The   omission   indicates   careless   conduct   on   the   part   of   the petitioner.  The petition was filed in undue haste.  17. We take judicial notice of the fact that a large number of petitions are filed   which   are   defective;   still,   the   insistence   is   made   to   list   them   and mention is made that they should be listed urgently.  It happens in a large number of matters, and unnecessary pressure is put upon the Assistants dealing   with   the   cases.   We   find   due   to   mistakes/   carelessness   when petitions with defects are filed, it should not be expected that they should be listed instantly. To err is human and there can be an error on the part of the Dealing Assistants too.   This is too much to expect perfection from them, particularly when they are working to their maximum capacity even during the pandemic.   The cases are being listed.   It could not be said that there was an inordinate delay in listing the matters in view of the defects.   The Court functioned during the lockdown, the cases were scanned and listed by the Registry.   The staff of this Court is working despite danger to their life and safety caused due to pandemic, and several of the Dealing Staff, as well as Officers, have suffered due to Covid­19.  During such a hard time, it was not expected of the petitioner who is an officer of this Court to file such a petition to demoralize the Registry of this Court instead of recognizing the 9 task undertaken by them even during pandemic and lockdown period. 18. We see, in general, it has become a widespread practice to blame the Registry for no good reasons.  To err is human, as many petitions are filed with defects, and defects are not cured for years together.  A large number of such cases were listed in the recent past before the Court for removal of defects which were pending for years.  In such situation, when the pandemic is going on, baseless and reckless allegations are made against the Registry of   this   Court,   which   is   part   and   parcel   of   the   judicial   system.     We   take judicial notice of the fact that such evil is also spreading in the various High Courts, and Registry is blamed unnecessarily for no good reasons.  It is to be remembered by worthy lawyers that they are the part of the judicial system; they are officers of the Court and are a class apart in the society. Regarding exemplary behavior from members of noble profession in <cite>R. Muthukrishnan v.   The   Registrar   General   of   the   High   Court   of   Judicature   at   Madras,   Writ Petition (C) No.612 of 2016</cite> the Court observed concerning the expectation from gentlemen lawyers, thus: “23. The role of Lawyer is indispensable in the system of delivery of justice. He is bound by the professional ethics and to maintain the high standard. His duty is to the court to his own client, to the opposite side, and to maintain the respect of opposite party counsel also. What may be proper to others in the society, may be improper for him to do as he belongs to a respected intellectual class of the society and a member of the noble profession, the expectation from him is higher. Advocates are treated with respect in society. People repose immense faith in the judiciary and judicial system and the first person who deals with them is a lawyer. Litigants repose faith in a lawyer and share with them privileged information. They put their signatures wherever asked by a Lawyer. An advocate is supposed to protect their rights and to ensure that untainted justice delivered to his cause. 10 24. The high values of the noble profession have to be protected by all concerned at all costs and in all the circumstances cannot be forgotten even by the youngsters in the fight of survival in formative years. The nobility of legal profession requires an Advocate to remember that he is not over attached to any case as Advocate does not win or lose a case, real recipient of justice is behind the curtain, who is at the receiving end. As a matter of fact, we do not give to a litigant anything except recognizing his rights. A litigant has a right to be impartially advised by a lawyer. Advocates are not supposed to be money guzzlers or ambulance chasers. A Lawyer should not expect any favour from the Judge and should not involve by any means in influencing the fair decision-making process. It is his duty to master the facts and the law and submit the same precisely in the Court, his duty is not to waste the Courts' time. 25. It is said by Alexander Cockburn that “the weapon of the advocate is the sword of a soldier, not the dagger of the assassin”. It is the ethical duty of lawyers not to expect any favour from a Judge. He must rely on the precedents, read them carefully and avoid corruption and collusion of any kind, not to make false pleadings and avoid twisting of facts. In a profession, everything cannot be said to be fair even in the struggle for survival. The ethical standard is uncompromisable. Honesty, dedication and hard work is the only source towards perfection. An Advocate conduct is supposed to be exemplary. In case an Advocate causes disrepute of the Judges or his colleagues or involves himself in misconduct, that is the most sinister and damaging act which can be done to the entire legal system. Such a person is definitely deadwood and deserves to be chopped off. x x x 40. The Bar Council has the power to discipline lawyers and maintain nobility of profession and that power imposes great responsibility. The Court has the power of contempt and that lethal power too accompanies with greater responsibility. Contempt is a weapon like Brahmasatra to be used sparingly to remain effective. At the same time, a Judge has to guard the dignity of the Court and take action in contempt and in case of necessity to impose appropriate exemplary punishment too. A lawyer is supposed to be governed by professional ethics, professional etiquette and professional ethos which are a habitual mode of conduct. He has to perform himself with elegance, dignity and decency. He has to bear himself at all times and observe himself in a manner befitting as an officer of the Court. He is a privileged member of the community and a gentleman. He has to mainsail with honesty and sail with the oar of hard word, then his boat is bound to reach to the bank. He has to be honest, courageous, eloquent, industrious, witty and judgmental. 11 76. Soul searching is absolutely necessary and the blame game and maligning must stop forthwith. Confidence and reverence and positive thinking is the only way. It is pious hope that the Bar Council would improve upon the function of its disciplinary committees so as to make the system more accountable, publish performance audit on the disciplinary side of various bar councils. The same should be made public. The Bar Council of India under its supervisory control can implement good ideas as always done by it and would not lag behind in cleaning process so badly required. It is to make the profession more noble and it is absolutely necessary to remove the black sheeps from the profession to preserve the rich ideals of Bar and on which it struggled for the values of freedom. It is basically not for the Court to control the Bar. It is the statutory duty of Bar to make it more noble and also to protect the Judges and the legal system, not to destroy the Bar itself by inaction and the system which is important pillar of democracy.” (emphasis supplied) 19. In  <cite>Kamini Jaiswal v. Union of India & Anr.  (2018) 1 SCC 156</cite>, it was observed: “24.…… In Charan Lal Sahu v. Union of India1, this Court has observed that in a petition filed under Article 32 in the form of PIL attempt of mudslinging against the advocates, Supreme Court and also against the other constitutional institutions indulged in by an advocate in a careless manner, meaningless and as contradictory pleadings, clumsy allegations, contempt was ordered to be drawn. The Registry was directed not to entertain any PIL petition of the petitioner in future.” 25. <cite>In R.K. Anand v. Delhi High Court2</cite> this Court observed that there could be ways in which conduct and action of malefactor was professional misconduct. The purity of the court proceedings has to be maintained. The Court does not only have the right but also an obligation to protect itself and can bar the malefactor from appearing before the Court for an appropriate period of time. There is a duty cast upon an advocate to protect the dignity of this Court not to scandalize the very institution as observed in the said decision.” 20. We expect members of the noble fraternity to respect themselves first. They are an intellectual class of the society.  What may be proper for others may   still   be   improper   for   them,   the   expectations   from   them   is   to   be 1 (1988) 3 SCC 255 2 (2009) 8 SCC 106 12 exemplary to the entire society, then only the dignity of noble profession and judicial system can be protected.  The Registry is nothing but an arm of this Court   and   an   extension   of   its   dignity.   Bar   is   equally   respected   and responsible part of the integral system, Registry is part and parcel of the system, and the system has to work in tandem and mutual reverence.  We also expect from the Registry to work efficiently and effectively. At the same time, it is expected of the lawyers also to remove the defects effectively and not to unnecessarily cast aspersions on the system.   21. Thus,   we   find   no   ground   to   entertain   the   petition.     We   expect   the petitioner to be more careful and live up to the dignity of the profession which it enjoys.   22. We   dismiss   the   petition   and   impose   cost   of   Rs.100/­   (Rupees   One Hundred   only)   on   the   petitioner   as   a   token   to   remind   his   responsibility towards noble profession and that he ought not to have preferred such a petition. 

The instant petition is directed against the order dated 23rd July,   2020   passed   by   the   first   respondent   relegating   the petitioner after serving as member of the Bihar Administrative service for almost 15 years to Bihar Education Service without affording   an   opportunity   of   hearing   to   him   in   alleged compliance of the order of this Court stated 23rd October 2019 in Civil Appeal No. 3307 of 2015 left with no option with the petitioner to approach this Court for redressal of his grievance. 1 2. The brief facts of the case led to filing of this petition are that Bihar Public Service Commission (hereinafter referred to as the  “Commission”) published an advertisement dated 29th December,   2001   in   various   newspapers   inviting   applications from   eligible   candidates   for   conducting   the   45th  Combined Competitive   Examination.   The   petitioner   had   participated   in the selection process and after being finally selected and as per his placement in the order of merit, was appointed into Bihar Administrative Service vide order dated 21st  March, 2005 and after   successful   period   of   probation,   became   a   substantive member of Bihar Administrative Service (BAS). 3. Shri   Baldeo   Choudhary   (respondent   no.   5)   had   also participated   along   with   the   petitioner   in   the   45th  Combined Competitive Examination held by the Commission pursuant to an   advertisement   dated   29th  December   2001,   could   not succeeded in fulfilling his wishes to become a member of Bihar Administrative Service.  He challenged his unsuitability held by 2 the Commission after almost four years of the process attain finality by filing a writ petition before the High Court of Patna in   the   year   2008   and   finally   succeeded   in   persuading   the learned Single Judge vide judgment dated 19th March, 2012 in holding that an error has been committed by the Commission in evaluation of his answer script of Paper­II General Studies. It may be noted that none of the selected candidates including the present petitioner who on their selection, being appointed and   became   member   of   Bihar   Administrative   Service,   were impleaded as a party to the writ petition.  4. The order of the learned Single Judge dated 19th  March, 2012   was   the   subject   matter   of   challenge   in   Letters   Patent Appeal filed at the instance of the Commission which came to be decided vide judgment dated 29th  November 2012 wherein the  Division Bench of  the  High Court of  Patna moulded the relief granted by the learned Single Judge under its order dated 19th  March,   2012.     The   relevant   extract   is   reproduced hereunder:­ 3 “We   are   alive   that   the   writ   petitioner   has approached the Court after a considerable delay i.e. by the   time   the   writ   petition   was   filed,   the   result   was declared   and   all   appointments   were   made.     We   are, therefore, not inclined to grant relief to the writ petitioner with retrospective effect. In the event after declaring the result as directed by   the   learned   single   judge,   the   writ   petitioner,   on account   of   his   placement   in   the   select   list   becomes entitled to appointment in a particular service: the writ petitioner   will   be   appointed   as   such:   but   the   writ petitioner will not be entitled to retrospective benefit.  In other words, the writ petitioner will take seniority and other service benefits from the date of his appointment and not from any earlier date.” 5. The   order   of   the   Division   Bench   became   the   subject matter of challenge at the instance of the Commission before this   Court   in   Civil   Appeal   No.   3307   of   2015   and   while dismissing   the   appeal,   this   Court   in   its   order   dated   23rd October,   2019   ruled   out   the   apprehension   exhibited   by   the Commission   and   the   extract   of   the   order   is   reproduced hereunder:­ “It is brought to the notice of the Court by learned counsel for the respondent that had the respondent been selected in the examination in question, he would have been ranked second.  The same is, however, disputed by learned counsel appearing for the Commission.  Be that as it may, it is brought to the notice of this Court that the   respondent   is   already   working   in   the   Sales   Tax Department of the State.  Having regard to the totality of facts and circumstances of the case, interest of justice would be met in case the respondent is declared qualified 4 to   be   appointed   from   the   date   of   the   judgment   of   the Division   Bench,   i.e.   from   29th  November,   2012.     From that   day   onwards,   the   respondent   should   be   given notional benefits of service such as continuity of service, increments   etc.     Since   the   respondent   is   already   in service,  he is not awarded any salary.   Since, now he stands   qualified   for   appointment,   the   State   shall consider   the   respondent’s   case   for   appointment   on   a suitable place and pay him salary.  The process shall be completed within a period of three months from this day and the salary will be paid from the date of his joining the duty.” The bare reading of the order passed by the Division Bench which has  been confirmed  by  this   Court  with  a clarification under its order dated 23rd October, 2019 remained restricted to revise   the   placement   of   original   writ   petitioner   (Baldeo Choudhary) who was aggrieved of his own rights in reference to the   alleged   error   which   had   been   committed   in   proper evaluation of his answer script for his placement in the select list   published   by   the   Commission   pursuant   to   which   the appointments   were   made   in   reference   to   an   advertisement dated 29th  December, 2001 and this Court taking note of the apprehension which was intended by the Commission, made a clarification that the appointment pursuant to a judgment of the Division Bench of the High Court has to be offered to the writ petitioner (Baldeo Choudhary) w.e.f. 29th  November 2012 5 (i.e.   date   of   Judgment   of   the   Division   Bench)   with   notional benefits of service such as continuity of service, increment, etc. as   he   was   already   in   service,   no   salary   for   the   interregnum period be awarded to him. 6. The   Commission   under   the   guise   of   the   order   of   this Court dated 23rd October, 2019 revised the recommendations of 45th  Combined Competitive Examination held pursuant to an advertisement dated 29th  December, 2001 and forwarded it to the Government of Bihar, Patna vide letter dated 4th May, 2020 while placing the original writ petitioner (Baldeo Choudhary) in the revised recommendations at Sl. No. 2 and displacing the petitioner relegating his placement from Bihar Administrative Service to Bihar Education Service. In furtherance thereof, the State Government vide its order dated 23rd July, 2020 relegated the   petitioner   to   Bihar   Education   Service   on   a   justification being tendered that action has been taken in compliance of the order of this Court dated 23rd October, 2019 which is a subject matter   of   challenge   at   the   instance   of   the   petitioner   in   the instant proceedings. 6 7. Learned counsel for the petitioner submits that petitioner has no demur regarding appointment of Baldeo Choudhary who has finally succeeded in his own rights on dismissal of the appeal preferred by the  Commission before this Court in Civil Appeal No.3307 of 2015 but he is aggrieved of relegating his cadre from Bihar Administrative Service to Bihar Education Service after he had rendered almost 15 years’ of service who was neither arrayed as a party to the writ petition nor been heard at any stage, is in violation of the principles of natural justice and in disregard of the order of this Court dated 23rd October, 2019. 8. Learned counsel further submits that this Court under its order   dated   23rd  October,   2019   confined   consideration   for appointment of Baldeo Choudhary in his own rights w.e.f. 29th November,   2012   but   the   directions   of   this   Court   have   been completely   misread   by   the   authorities   and   the   wholesome revision of the merit list has been undertaken by the Commission which was never intended by this Court in its order dated 23rd 7 October, 2019 disturbing the cadre allotment of the persons who were selected on the recommendation made by the Commission held pursuant to an advertisement dated 29th  December, 2001 and rightly so, since none of them was arrayed as party to the writ   petition   nor   been   heard   and     further   submits   that overturning the select list after 15 years and passing of an order dated 23rd July, 2020 having adverse civil consequences without hearing the person is indeed in violation of principles of natural Justice and such action of the respondents in the given facts and circumstances at least qua the petitioner is not sustainable in law. 9. Per   contra,   learned   counsel   for   the   respondents,   while supporting   the   order   impugned,   submits   that   the   commission has no option but to revise the select list in compliance of the order of this Court dated 23rd October, 2019 after placing Baldeo Choudhary at his place in the order of merit and in consequence, the   petitioner   being   last   in   the   open   category   in   Bihar Administrative   Service,   rightly   relegated   from   Bihar Administrative   Service   to   Bihar   Education   Service   vide   order 8 dated   23rd  July,   2020   and   submits   that   their   action   being   in compliance of the order of this Court needs no interference. 10. We have heard the learned counsel for the parties and with their assistance perused the material available on record. 11. This   Court   was   conscious   of   the   fact   that   although   the Division   Bench   of   the   High   Court   in   its   judgment   dated   29th November, 2012 moulded the relief confined to the writ petitioner Baldeo Choudhary as his case is sui generis, disturbing the select list   which   was   recommended   by   the   Commission   of   the candidates   who   had   participated   in   the   45th  Combined Competitive   Examination   held   pursuant   to   an   advertisement dated 29th  December, 2001 after serving for almost 15 years in their respective cadre assigned by the State Government will not be   in   the   interest   of   justice.     But  as   the   Commission   had   an apprehension in implementing order of the Division Bench dated 29th November, 2012, this Court ruled out the apprehension and 9 made a further clarification under its order dated 23rd  October, 2019. 12. In   the   given   circumstances,   what   was   required   for   the respondents was to place the writ petitioner (Baldeo Choudhary) at   the   appropriate   place   in   the   select   list   which   was recommended by the Commission in reference to 45th Combined Competitive Examination and to be considered for appointment to a particular service to whom he was suitable as per his revised placement   in   the   select   list   with   seniority   and   other   notional benefits of service including continuity of service, increment, etc., to which he was entitled for in compliance of the order of this Court dated    23rd October, 2019. 13. We   find   justification   in   what   being   contended   by   learned counsel for the petitioner to hold that relegating the petitioner to Bihar Education Service after he had rendered 15 years of service as member of the Bihar Administrative Service entail adverse civil consequences and indeed the order impugned dated 23rd  July, 10 2020 could   not have  been passed by  the  respondents  without affording him an opportunity of hearing and is in violation of the principles of natural justice. 14. The defence which has been tendered by the respondents in their counter affidavit that impugned action has been taken in compliance of the order of this Court dated 23rd  October, 2019 which in our view is completely misplaced and this Court under its order dated 23rd October, 2019, left no manner of doubt in its implementation   and   there   was   no   justification   left   for   the Commission to hold an exercise and revise the select list of 45th Combined   Competitive   Examination   held   pursuant   to   the advertisement   dated   29th  December,   2001   and   acted   upon   in 2005 after a lapse of 15 years at the same time the case of Baldeo Choudhary   being  sui   generis  was   to   be   considered   for appointment w.e.f. 29th  November, 2012 in terms of the revised recommendations   made   by   the   Commission   qua   him   without disturbing   the   cadre/seniority   of   the   persons   including   the petitioner   in   Bihar   Administrative   Service   to   which   he   was otherwise entitled  for in compliance of the  order of this Court 11 dated   23rd  October,   2019   assigning   him   seniority   and   the consequential benefits etc. w.e.f. 29th November, 2012. 15. The   respondents   in   our   view,   were   not   at   all   justified   in passing of the order  impugned dated 23rd July, 2020 which was neither observed by the Division Bench of the High Court nor expressed  by  this   Court  in  its  order  dated  23rd  October,  2019 relegating   the   petitioner   from   Bihar   Administrative   Service   to Bihar   Education   Service   after   he   had   rendered   15   years’   of substantive service in the cadre of Bihar Administrative Service.  16. Consequently,   in   our   considered   view,   the   writ   petition deserves   to   succeed   and   is   accordingly   allowed   and   the   order impugned   dated   23rd  July,   2020   qua   the   petitioner   is   hereby quashed.  No costs. 

2. This appeal, by special leave, has been preferred against the judgment and order dated 2.1.2007 of Gauhati High Court by which the appeal preferred by the appellants was disposed of with the modification that the sentence of five years R.I. and fine of Rs.7,000/- imposed upon each of the appellants under Section 313 read with Section 34 IPC by the learned Additional Sessions Judge, Kokrajhar, was reduced to three years R.I. and fine of Rs.5,000/-. 3. The case of the prosecution, in brief, is that the appellant Hasi Mohan Barman was having love affair with the first informant PW-1 Haleswari Barman, which subsequently developed into physical relationship and as a result thereof PW-1 became pregnant. The villagers put pressure upon Hasi Mohan Barman to marry PW-1 which he declined. He asked PW-1 to abort the child which she refused to do. Thereafter, in the night of the incident Hasi Mohan Barman took PW-1 Haleswari Barman to the pharmacy of co-accused Abinash Biswas, who administered certain injection whereupon PW-1 became unconscious and the child was aborted. She was administered Saline and the appellant Hasi Mohan Barman kept her at ’Pampghar’ for about nine days wherefrom she was taken to her parents house. After few days PW-1 lodged an FIR against both the appellants. The police, after investigation, submitted charge-sheet only against Hasi Mohan Barman but subsequently co-accused Abinash Biswas was also summoned under Section 319 Cr.P.C. to face the trial. 4. In the trial PW-1 Haleswari Barman deposed that on the promise that the appellant No. 1 will marry her they entered into sexual relationship and as a result whereof she became pregnant. Thereafter, the appellant No. 1 put pressure upon her to abort the child but she did not agree. On the night of occurrence the appellant No. 1 along with his brother forcibly took her to the pharmacy of co-accused Abinash Biswas and she was forcibly administered an injection due to which she became unconscious. When she regained consciousness she saw that saline was being administered to her. After some time on the asking of appellant No. 1 co-accused Abinash Biswas administered another injection due to which she became unconscious. When she regained consciousness she found that she had lost her pregnancy and then she was taken to the house of her parents. 5. PW-4 Dr. Dilip Bhowmik, an Ayurvedic Physician, has deposed that the appellant Hasi Mohan Barman had brought PW-1 to his clinic and on examination he had found that PW-1 was running pregnancy of 4-5 months. As she had some problem he gave some medicine to her. PW-3 Dr. Rezaul Karim examined PW-1 on 22.3.1995, i.e., more than one month after the abortion and found as follows: - "There was active slight bleeding as per vagina. For confirmation D & E (Dilatation and Evacuation) done and found placental parts inside the uterine cavity which is a sign of incomplete abortion i.e. she was pregnant." 6. The High Court, after a thorough examination of the evidence, has recorded a finding that PW-1 was pregnant through the appellant Hasi Mohan Barman who wanted PW-1 to abort the child. As PW-1 declined to do so, Hasi Mohan Barman with the help of Abinash Biswas caused miscarriage of the pregnancy without the consent of PW-1. The High Court accordingly held that it was established beyond any shadow of doubt that both the appellants had committed an offence under Section 313 IPC. The High Court thus maintained the conviction but reduced the sentence from seven years R.I. and a fine of Rs.7,000/- to three years R.I. and a fine of Rs.5,000/- of both the appellants. 7. It appears that during the pendency of the case the complainant Haleswari Barman married appellant No. 1 Hasi Mohan Barman and both of them are living as husband and wife. She filed an affidavit that she had entered into a compromise and wanted the criminal case pending against her husband Hasi Mohan Barman and the appellant No. 2 Abinash Biswas to be withdrawn as the entire matter had been compromised and both PW-1 and the first appellant were living peacefully as husband and wife. This Court passed an order directing the learned Additional Sessions Judge to verify the correctness of the affidavit given by PW-1 Haleswari Barman. The learned Additional Sessions Judge has sent a report to this Court that PW-1 Haleswari Barman had verified the affidavit given by her and had deposed about the correctness of the same, namely, that she and Hasi Mohan Barman were living peacefully as husband and wife. In view of this development that PW-1 Haleswari Barman and appellant No. 1 Hasi Mohan Barman have married and are peacefully and happily living as husband and wife it has been submitted that the appeal deserves to be allowed and the conviction of the appellants should be set aside. 8. Section 320 of Code of Criminal Procedure says that the offences punishable under the sections of the Indian Penal Code (45 of 1860) specified in the first two columns of the table next following may be compounded by the persons mentioned in the third column of that table. A perusal of Section 320 will show that the offence under Section 313 IPC is not compoundable. Therefore, the consent given by the wife PW-1 or the affidavit filed by her cannot be utilized for the purpose of recording a finding of acquittal in favour of the accused appellants. 9. There are some decisions of this Court wherein the factor of compromise between the accused and the complainant (or injured or person aggrieved) has been taken into consideration for reducing the sentence. 10. The first decision on this point was rendered by this Court in <cite>Ram Pujan and others vs. State of Uttar Pradesh (1973) 2 SCC 456</cite>, wherein the trial court had convicted the accused under Section 326 IPC which is a non-compoundable offence and had sentenced the accused to four years R.I. The High Court took into consideration the compromise between the accused appellant and the injured and reduced the sentence to two years R.I. This Court, after observing that the fact of compromise can be taken into account in determining the quantum of sentence, reduced the sentence to the period already undergone which was little more than four months and further imposed a fine of Rs.1500/- on each of the appellants. <cite>Surendra Nath Mohanty and another vs. State of Orissa (1999) 5 SCC 238</cite> is a decision of a Bench of three learned Judges. It was observed that in view of the legislative mandate contained in Section 320 Cr.P.C. an offence can be compounded only in accordance with the provisions of the said section. The Court followed the view taken in the case of <cite>Ram Pujan (supra)</cite> and having regard to the fact that the parties had compromised and a period of ten years had elapsed from the date of the incident reduced the sentence of five years R.I. imposed under Sections 307 and 326 IPC to the period of sentence already undergone which was three months and also imposed fine of Rs.5,000/-. 11. There are several other decisions of this Court wherein factor of compromise has been taken into consideration and the sentence has been reduced mostly to the period already undergone and they are <cite>Bankat and another vs. State of Maharashtra (2005) 1 SCC 343</cite>, <cite>Badrilal vs. State of M.P. (2005) 7 SCC 55</cite> and <cite>Jetha Ram and others vs. State of Rajasthan (2006) 9 SCC 255</cite>. 12. Following the view taken in the above noted cases we are of the opinion that the complainant and the principal accused having already married it will be in the interest of justice if the sentence is reduced to the period already undergone. The appeal is accordingly partly allowed. The conviction of the appellants under Section 313 IPC is maintained but the sentence is reduced to the period already undergone which appears to be about ten months. The fine imposed upon the appellants is also set aside. The appellants are on bail. Their sureties and bail bonds are discharged.

From the beginning of this year, 2020, the world including our country is in the grip of a pandemic known as Novel Coronavirus (COVID-19). On 31.12.2019, a cluster of cases of pneumonia of unknown cause in the city of Wuhan, Hubei Province in China was reported to the World Health Organisation (WHO). This was subsequently identified as a new virus in January, 2020 and over the following months, the number of cases continued to rise but were not 2 contained to China and showed exponential growth worldwide. Due to the global rise in cases, this was declared a pandemic on 11.03.2020 by the WHO. The number of affected persons is increasing worldwide. Although, substantial population is also recovering from it but India witnessed exponential growth in number of cases in the last month. 2. The world is familiar with several kinds of disasters from time immemorial. Every country has faced one or other disaster in recent memory. Disasters disturb lives, societies and livelihood around the world. The impact of disaster is to strike hard earned economy, development and material gains. Many of the destructive hazards are natural in origin and some man made also. The whole world having faced adverse effect of different kinds of disasters is now well aware of its ill effect and steps internationally as well as nationally are being taken for last several decades to combat different 3 kinds of disasters. U.N. General Assembly recognizing the importance of reducing the impact of natural disaster for all people including developing countries designated 1990 as the international decade of natural disaster reduction. The International Strategy for Disaster Reduction (UNISDR) was established following IDNDR of the 1990s. The UN/GA convened the second World Conference on Disaster Risk Reduction (DRR) in Kobe, Hyogo, Japan 2005, which concluded the review of the Yokohama Strategy and its Plan of Action and the adoption of the Hyogo Framework for Action 2005–2015: Building the Resilience of Nations and Communities to Disasters (HFA) (UNISDR 2005) by 168 countries. The HFA outlined five priorities for action: “(1) Ensure that DRR is a national and a local priority with a strong institutional for implementation; basis (2) Identify, assess, and monitor disaster risks and enhance early warning; 4 (3) Use knowledge, innovation, and education to build a culture of safety and resilience at all levels; (4) Reduce the underlying risk factors; (5) Strengthen disaster preparedness for effective response at all levels.” 3. On 23.12.2005, both the Houses of Indian Parliament passed a Disaster Management Bill. The Introduction and the Statement of Objects and Reasons of the Bill mentions: - “INTRODUCTION For prevention and mitigation effects of disasters and for undertaking a holistic, coordinated and prompt response to any disaster situation it has been decided by the Government to enact a law on disaster management to provide for requisite institutional mechanisms for drawing up and monitoring the implementation of the disaster management plans, ensuring measures by various wings of Government. To achieve this objective the Disaster Management Bill was introduced in the Parliament. STATEMENT OF OBJECTS AND REASONS The Government have decided to enact a law on disaster management to provide for requisite institutional mechanisms for drawing up and monitoring the 5 implementation of the disaster management plans, ensuring measures by various wings of Government for prevention and mitigating effects of disasters and for undertaking a holistic, coordinated and prompt response to any disaster situation.” 4. The Disaster Management Act, 2005 (hereinafter referred to as “Act, 2005”) was enacted to provide for the effective management of disasters and matters connected therewith or incidental thereto. The enactment of Disaster Management Act, 2005 was to bring in place requisite institutional mechanisms for drawing up and monitoring the implementation of the Disaster Management Plans and other measures by various wings of the Government for preventing and mitigating effects of disasters. We shall notice the relevant provisions of the Act a little later. 5. In accord with Disaster Management Act, 2005, Union Cabinet approved a “National Policy on Disaster Management, 2009”. Paragraph 1.1.1, 1.2.1 and 1.3.1 of the policy reads as under: - 6 “1.1.1 Disasters disrupt progress and destroy the hard-earned fruits of painstaking developmental efforts, often pushing nations, in quest for progress, back by several decades. Thus, efficient management of disasters, rather than mere response to their occurrence, has in recent times, received increased attention both within India and abroad. This is as much a result of the recognition of the increasing frequency and intensity of disasters, as it is an acknowledgement that good governance in a caring and civilised society, needs to deal effectively with the devastating impact of disasters. 1.2.1 India is vulnerable, in varying degrees, to a large number of natural as well as man-made disasters. 58.6 per cent of the landmass is prone to earthquakes of moderate to very high intensity; over 40 million hectares (12 per cent of land) is prone to floods and river erosion; of the 7,516 km long coastline, close to 5,700 km is prone to cyclones and tsunamis; 68 per cent of the cultivable area is vulnerable to drought and hilly areas are at risk from landslides and avalanches. Vulnerability to disasters/emergencies of Chemical, Biological, Radiological and Nuclear (CBRN) origin also exists. Heightened vulnerabilities to disaster risks can be related to expanding population, and industrialisation, development within urbanisation high-risk zones, environmental degradation and climate change (Maps 1–4). 7 1.3.1 On 23 December 2005, the Government of India (GoI) took a defining step by enacting the Disaster Management Act, 2005, (hereinafter referred to as the Act) which envisaged the creation of the National Disaster Management Authority (NDMA), headed by the Prime Minister, State Disaster Management Authorities (SDMAs) headed by the Chief Ministers, and District Disaster Management Authorities (DDMAs) headed by the District Collector or District Magistrate or Deputy Commissioner as the case may be, to spearhead and adopt a holistic and integrated approach to DM. There will be a paradigm shift, from the erstwhile relief- centric response to a proactive prevention, mitigation and preparedness- driven conserving developmental gains and to minimise loss of life, livelihood and property.” approach for The policy noticed institutional framework under the Act, dealt with financial arrangement, disaster prevention, mitigation and preparedness. 6. Third U.N. World Conference on Disaster Risk Reduction was held in March, 2015 at Sendai, Japan. One of the declarations made in the conference was: - 8 “We, the Heads of State and Government, ministers and delegates participating in the Third United Nations World Conference on Disaster Risk Reduction, have gathered from 14 to 18 March 2015 in Sendai City of Miyagi Prefecture in Japan, which has demonstrated a vibrant recovery from the Great East Japan Earthquake in March 2011. Recognizing the increasing impact of disasters and their complexity in many parts of the world, we declare our determination to enhance our efforts to strengthen disaster risk reduction to reduce disaster losses of lives and assets from worldwide.” disasters 7. The Sendai declaration dealing with priorities for action emphasized following in paragraph 33(a):- ”33(a) To prepare or review and periodically update disaster preparedness and contingency policies, plans and programmes with the involvement of the relevant institutions, considering climate change scenarios and their impact on disaster risk, and facilitating, as appropriate, the participation of all sectors and relevant stakeholders;” 8. Although Section 11 of Act, 2005 contemplated preparation of a National Plan, however, the National Plan was not prepared till the year 2016 as was 9 noticed by this Court in a judgment of this Court in <cite>Swaraj Abhiyan Vs. Union of India & Ors., (2016) 7 SCC 498</cite>. In the year 2016, National Disaster Management Plan was prepared as required by Section 11 of the Act, 2005. The preparation of the National Plan under Section 11 was noticed by this Court in <cite>Gaurav Kumar Bansal Vs. Union of India and Ors., (2017) 6 SCC 730</cite>. In the same judgment, this Court noticed that State Plan under Section 23 of the Act (except by two States) and District Plan have also been prepared. The preparation of National Plan, State Plan and District Plan were noticed in paragraphs 7, 11 and 12 of the above judgment, which are to the following effect:- “7. It was further pointed out that a National Plan has been approved and placed on the website of the NDMA in terms of Section 11 of the Act and the guidelines for minimum standards of relief Under Section 12 of the Act have also been placed on the website of the NDMA. 11. As far as the preparation of the State Plan Under Section 23 of the Act is concerned, we have been informed by the learned Counsel for NDMA that all States 10 except Andhra Pradesh and Telangana have prepared a State Disaster Management Plan which is very much in place. 12. As far as the districts are concerned, it is stated that the District Disaster Management Authority has been constituted in every district Under Section 25 of the Act and out of 684 districts in the country, a District Disaster Management Plan is in place in 615 districts while it is under process in the remaining districts.” 9. The revision of the existing National Disaster Management Plan, 2016 began in April, 2017 and completed in November, 2019. The National Disaster Management Plan approved by National Disaster Management Authority was notified in November, 2019. 10. This writ petition filed as a public interest litigation has been filed in the wake of Covid-19 pandemic, seeking direction to the Union of India to prepare, notify and implement a National Plan under Section 11 read with Section 10 of the Act, 2005 to deal with current pandemic (Covid-19) and to lay down 11 minimum standards of relief under Section 12 of the Act, 2005 to be provided to persons affected with COVID-19. Petitioners have also sought for directions to utilize National Disaster Response Fund (NDRF) for the purposes of providing assistance in the fight against COVID-19 and all the contributions/grants from individuals/institutions be credited in NDRF and not to PM CARES Fund and all funds collected in PM CARES Fund till date should be directed to be transferred to NDRF. It is useful to note the specific prayers (a) to (c) made in the writ petition: - “a. Issue a writ, order or direction to the Union of India to prepare, notify and implement a National Plan under Section 11 read with Section 10 of the Disaster Management Act, 2005 to deal with the ongoing COVID-19 pandemic; b. Issue a writ, order or direction to the Union of India to lay down minimum standards of relief, under Section 12 of the Disaster Management Act, 2005, to be provided to persons affected by the COVID-19 virus, as well as by the resultant national lockdown; 12 c. Issue a writ, order or direction to the Union of India to utilize NDRF for the purpose of providing assistance in the fight against GOVID-19 pandemic in compliance with Section 46 of the DM Act, all the contributions/grants from individuals and institutions shall be credited to the NDRF in terms of Section 46(1)(b) rather than to PM CARES Fund and all the fund collected in the PM CARES Fund till date may be directed to be transferred to the NDRF;” 11. We have heard Shri Dushyant Dave, learned senior counsel for the petitioner. Shri Kapil Sibal has also made his submissions in support of the prayers and issues raised in the writ petition while addressing his submissions in Suo Moto Writ Petition No. 6 of 2020. We have also heard Shri Tushar Mehta, learned Solicitor General appearing for the Union of India. 12. Petitioner’s case in the writ petition is that the National Plan uploaded on the website of National Disaster Management Authority of the year 2019 does not deal with situations arising out of the current 13 pandemic and has no mention of measures like lockdown, containment zones, social distancing etc. The Central Government has notified COVID-19 as a “disaster” under Act, 2005 and has issued series of notifications to contain the instant pandemic. Petitioner pleads that Centre need to prepare a well- drawn National Plan to deal with instant pandemic and the same need to be prepared after due consultation with the State Government and experts. Petitioner further pleads that Centre should come up with detailed guidelines recommending the minimum standards of relief to be provided in the relief camps in relation to shelter, food, drinking water, medical cover and sanitation, in absence of which, shelter homes and relief camps are susceptible of becoming hotbeds for the spread of COVID-19 infection. Petitioner pleads that Centre should come up with detailed guidelines under Section 12(ii) and (iii) of the Act, 2005 recommending special provisions to be made for widows and orphans and ex gratia to be provided to the kith and kin of those losing life not just because of COVID-19 infection but also due to harsh lockdown restrictions. 14 13. The petitioner’s case further is that the grants/contributions by individuals and institutions should be credited into the National Disaster Response Fund (NDRF) under Section 46 of the Act, 2005 and NDRF should be utilized for meeting the ongoing COVID-19 crisis. All the contributions made by the individuals and institutions in relation to COVID-19 are being credited into the PM CARES Fund and not in NDRF, which is clear violation of Section 46 of the Act, 2005. The NDRF is subject to CAG Audit and PM CARES Fund is not subject to CAG Audit. Petitioner’s case further is that the Centre may be directed to utilize NDRF for the purpose of drawing assistance to fight against COVID-19 and all the contributions/grants from individuals and institutions be credited to the NDRF in terms of 15 Section 46(1)(b) rather than to PM CARES Fund and all the Fund Collected in the PM CARES Fund till date may be directed to be transferred to the NDRF. 14. A preliminary counter affidavit has been filed on behalf of the Union of India. In the counter affidavit, the respondents have questioned the locus of the petitioner to file this public interest litigation. Counter affidavit questions as to whether there can be a permanent body set up only to file litigation on issues, which the said body subjectively considers to be of “public interest”. Counter affidavit pleads that National Disaster Management Plan as per Section 11 is already in place and relevant portion of National Disaster Management Plan – November, 2019 has been annexed as Annexure R- 1 to the counter affidavit. Counter affidavit pleads that Act, 2005 provides for a broad framework in terms of the response to be provided in pursuance to a National Plan in case of any disaster. Counter affidavit pleads that National Plan does not and 16 cannot contain step by step instructions or specific instructions for the day to day management by Government agencies in the situation of any particular and unforeseen disaster. National Plan is not a document that contains the microscopic details as to the day to day management of the issues arising out of different disasters. National Disaster Management Authority has issued various orders from time to time to take effective measures found required at the relevant point of time to contain the spread of COVID-19 in the country. The Chairperson of National Executive Committee has issued several guidelines from time to time. National Disaster Management Authority has, in order to create preparedness with regard to any contingent biological disaster, has framed the “National Disaster Management Guidelines Management of Biological Disasters”. National Disaster Management Authority has framed broad template for State level and District level for contingency plan for COVID-19. 17 The Nodal Ministry, i.e., Ministry of Health and Family Welfare has issued a “Cluster Containment Plan for COVID-19” on 02.03.2020, which was further updated on 16.05.2020. Further instructions have been issued from time to time including the guidance documents. The Ministry of Health and Family Welfare has approved the India COVID-19 Emergency Response and Health Systems Preparedness Package of Rs.15000 crores, which seeks to support States/Union Territories in various aspects of management of the COVID Pandemic and provides support for establishment of COVID dedicated facilities for treatment of COVID- 19 cases including for critical care, enhancement in testing capacities, engagement and training of necessary human resources and procurement of essential equipment and protective gear for the health care personnel engaged in COVID-19 duties etc. With regard to minimum standards of relief, the counter affidavit refers and relies on guidelines on Minimum Standards of Relief under Section 12, which 18 has been brought on record as Annexure R-7. The Counter affidavit also outlines various steps taken by Health Ministry as well as the Government of India. 15. Replying the averments in the writ petition regarding PM CARES Fund and NDRF, the counter affidavit pleads that there are several funds which are either established earlier or now for carrying out various relief works. PM CARES Fund is one of such funds with voluntary donations. Affidavit further states that there exist a NDRF which would not prohibit creation of a different fund like PM CARES fund which provides for voluntary donations. The directions prayed in the writ petition for transfer of funds received in PM CARES Fund in the NDRF are non-maintainable. 16. Shri Dushyant Dave, learned senior counsel appearing for the petitioner referring to the pleadings of the petitioner made in the writ petition 19 contends that Centre was obliged to prepare a National Plan for Disaster Management specifically for COVID-19. Shri Dave does not dispute that National Plan under Section 11 has been framed in November, 2019 but he submits that said Plan is neither comprehensive nor covers management of pandemic, i.e., COVID-19. Shri Dave submits that power given in a Statute is to be exercised in the same manner. Shri Dave further submits that there is a serious problem in implementing the National Plan, 2019. Shri Dave has taken us to certain portion of Plan of November, 2019, which has been filed as Annexure – P-2 to the writ petition. Shri Dave submits that only paragraph 7.15 deals with biological and public health emergencies but Plan does not contemplate giving any financial relief. Shri Dave submits that unless there is a National Plan for COVID-19, effective measures cannot be taken to contain COVID-19. Referring to Section 46 of the Act, 2005, Shri Dave submits that NDRF having been 20 constituted by Central Government, all amount given by individuals and organisations for disaster should have been credited in NDRF. He submits that PM CARES Fund should not have been constituted when NDRF is already in place to take care of disasters. Shri Dave submits that there is no provision in 2019 Plan to give fund to NDRF. Referring to Operational Guidelines for Constitution and Administration of the National Disaster Response Fund at page 129 of the writ petition, Shri Dave submits that paragraph 5.5 provides that contribution made by the persons or institutions for the purpose of disaster management to be credited in the NDRF, which clause 5.5 has been omitted in the subsequent Operational Guidelines for Constitution and Administration of the National Disaster Response Fund filed at page 154, which is recent guidelines. By deletion of clause 5.5 now contribution by any person or institution for the purpose of disaster management to the NDRF is not permissible. Shri Dave submits that petitioners have 21 no reason to doubt the bonafide of PM CARES Fund but by creating PM CARES Fund the NDRF is being circumvented. What cannot be done directly cannot be done indirectly. Although, NDRF is audited by CAG, the PM CARES Fund is audited by only private auditors. 17. Shri Tushar Mehta, learned Solicitor General refuting the submissions of the counsel for the petitioners submits that reliefs (i) and (ii) made in the writ petition has become infructuous since National Plan has already been prepared under Section 11, which has been referred to in the counter affidavit and relevant extract of the Plan has already been brought on record as Annexure R-1 along with counter affidavit. He submits that insofar as the guidelines for minimum standards of reliefs are concerned, there are guidelines in existence, which has been brought on record by the counter affidavit, which covers all disasters including COVID-19. Shri 22 Mehta submits that Plan – November, 2019 along with the powers given in the Act, 2005 contains several measures to contain the spread of COVID-19 and no separate National Plan is required for COVID-19. 18. Shri Tushar Mehta submits that a National Disaster Response Fund has been created as stipulated under Section 46 of Act, 2005, which consist of fund in the form of budgetary provisions made by the Central Government in National Disaster Response Fund. He submits that the existence of National Disaster Response Fund, which is a statutory fund, neither prevents creation of any public charitable trust receiving voluntary donation nor can remotely mean that the amount received in all such voluntary funds should go in the statutory fund created under Section 46. National Disaster Response Fund and PM CARES Fund being distinct and separate, there is no occasion for any direction to transfer the amount of PM CARES Fund to the National Disaster Response Fund. 23 19. We have heard the learned counsel for the parties and perused the record. Applications for intervention are rejected. 20. The respondent in its affidavit has raised contention/objection regarding the locus standi of the petitioner. It is, inter alia, contended that there cannot be a permanent body existing only for filing public interest litigations. Shri Tushar Mehta, learned Solicitor General, however, pointed out that at the outset, in the facts of the present case, he would rather like to assist the Hon’ble court on merits and requested that the question of locus standi of the petitioner which, according to him is a very serious question, be left open to be raised and decided in other proceedings. We have, therefore, heard the parties on merits, keeping the aforesaid question open, to be heard and decided in an appropriate proceeding. 24 21. From the submissions of the learned counsel for the parties and the pleadings on record, following questions arise for consideration in this writ petition: - I) Whether the Union of India under Section 11 of Act, 2005, is obliged to prepare, notify and implement a National Disaster Management Plan specifically for pandemic COVID-19 irrespective of National Disaster Management Plan notified in November, 2019? II) Whether the Union of India is obliged to lay down the minimum standards of relief under Section 12 of Act, 2005, for COVID-19 irrespective of earlier guidelines issued under Section 12 of the Act, 2005 laying down the minimum standards of relief? III) Whether Union of India is obliged to utilise National Disaster Response Fund created under 25 Section 46 of the Act for the purpose of providing assistance in the fight of COVID-19? IV) Whether all the contributions/grants from individuals and institutions should be credited to the NDRF in terms of Section 46(1) (b) of the Act rather than to PM CARES Fund? V) Whether all the funds collected in the PM CARES Fund till date be directed to be transferred to the NDRF? QUESTION NO.I I) Whether the Union of India under Section 11 of Act, 2005, is obliged to prepare, notify and implement a National Disaster Management Plan specifically for pandemic COVID-19 irrespective of National Disaster Management Plan notified in November, 2019? 22. The Act, 2005, has been enacted for the effective management of Disasters and for matters connected therewith or incidental thereto. Section 3 of the Act constitutes National Disaster Management Authority with the Prime Minister of India as the 26 Chairperson, ex-officio. Section 6 enumerates the powers and functions of National Authority. As per Section 6 sub-Section (2)(b), National Disaster Management Authority (hereinafter referred to as National Authority) is to approve the National Plan. Under Section 7, the National Authority may constitute an advisory Committee consisting of experts in the field of Disaster Management to make recommendations on different aspects of Disaster Management. Under Section 8, the Central Government is to constitute a National Executive Committee to assist the National Authority in the performance of its functions under the Act. Section 11 of the Act deals with National Plan, which provision is to the following effect: - “11. National Plan –(1) There shall be drawn up a plan for disaster management for the whole of the country to be called the National Plan. (2) The National Plan shall be prepared by the National Executive Committee having regard to the National Policy and in consultation with the State Governments and expert bodies or 27 organizations in the field of disaster management to be approved by the National Authority. (3) The National Plan shall include – (a) measures to be taken for the prevention of disasters, or the mitigation of their effects; (b) measures to be taken for the integration of mitigation measures in the development plans; (c) measures to be taken for preparedness and capacity building to effectively respond to any threatening disaster situations or disaster; (d) roles and responsibilities of different Ministries or Departments of the Government of India in respect of measures specified in clauses (a), (b) and (c). (4) The National Plan shall be reviewed and updated annually. (5) Appropriate provisions shall be made by the Central Government for financing the measures to be carried out under the National Plan. (6) Copies of the National Plan referred to in sub-sections (2) and (4) shall be made available to the Ministries or Departments of the Government of India 28 and such Ministries or Departments shall draw up their own plans in accordance with National Plan.” 23. As noted above, the first National Plan under Section 11 was framed in the year 2016, which was revised and the National Plan was prepared and notified in November, 2019. Extract of National Disaster Management Plan of November, 2019 has been brought on record both by the petitioner as Annexure-P2 to the writ petition as well as by the respondent as Annexure-R1 to the preliminary counter affidavit. 24. We may notice certain relevant portions of the Plan, 2019 to answer the question which is up for consideration. The Plan, 2019 under heading ‘Executive Summary’ states: - “...The National Disaster Management Plan (NDMP) provides a framework and direction to the government agencies for all phases of disaster management cycle. The NDMP is a “dynamic document” in the sense that it will be periodically improved keeping up with the emerging global best practices and knowledge base 29 in disaster management. It is in accordance with the provisions of the DM Act, 2005, the guidance given in the National Policy on Disaster Management (NPDM) 2009, and the established national practices...” 25. In the Executive summary itself, while noticing the changes introduced, the Plan states that new sections have been added relating to several hazards including “Biological and Public Health Emergencies”. The Plan, 2019 provides a framework and directions to the Government Agencies for all phases of Disaster Management. The Plan is a dynamic document in the sense that it was to be periodically improved, keeping up with the best practices and knowledge based in Disaster Management. The Plan provides a framework covering all aspects of Disaster Management. It covers Disaster Risk Reduction, mitigation, preparedness, response, recovery and building back better. It recognizes that effective Disaster Management necessitates a comprehensive framework encompassing multiple 30 hazards. Paragraph 1.4 of the Plan under the heading ‘Legal Mandate’ states: - “1.4. Legal Mandate Section 11 of the DM Act 2005 mandates that there shall be a National Disaster Management Plan (NDMP) for the whole of India. The NDMP complies with the National Policy on Disaster Management (NPDM) of 2009 and conforms to the provisions of the DM Act making it mandatory for the various central ministries and departments to have adequate DM plans. While the NDMP will pertain to the disaster management for the whole of the country, the hazard-specific nodal ministries and departments notified by the Government of India will prepare detailed DM plans specific to the disaster assigned. As per Section 37 of the DM Act, every ministry and department of the Government of India, be it hazard-specific nodal ministries or not, shall prepare comprehensive DM plans detailing how each of them will contribute to the national efforts in the domains of disaster prevention, preparedness, response, and recovery. As per the mandate of the DM Act, the NDMP assigns specific and general responsibilities to all ministries and departments for disaster management. The DM Act enjoins the NDMP to assign necessary responsibilities to various ministries to support and implement the plan. Therefore, it is incumbent on all ministries to accept all the implicit and explicit responsibilities mentioned in the 31 NDMP even if they are beyond what are explicitly mentioned in the normal rules of business. Disaster management requires assumption of responsibilities beyond the normal functioning. The NDMP will be complemented by separate contingency plans, SOPs, manuals, and guidelines at all levels of the multi-tiered governance system.” 26. The above part of the Plan categorically states that the Plan will be complemented by several contingency plans, Standard Operating Procedures (SOPs), Manuals and Guidelines at all levels of the multi-tiered governance system. Paragraph 1.13 deals with ‘types of Disasters’. Paragraph 1.13.1, ‘Natural Hazards’ have been enumerated in five major categories. Sub-category (5) is to the following effect:- “1.13.1 Natural Hazards 1)... 5)Biological Process or phenomenon or organic origin or conveyed by biological vectors, including exposure to pathogenic micro-organisms, toxins and bioactive substances that may cause loss of life, injury, illness or other health impacts, property damage, loss of livelihoods and services, social and 32 economic disruption or environmental damage.” 27. Under Table 1-1, ‘Categories of Natural Hazards’ have been detailed. Item (5) of the Table 1-1 is to the following effect: - “Table 1-1: Categories of Natural Hazards Family Main Event 1 Geophysical 2 Hydrological 3 Meteorological 4 Climatological 5 Biological Exposure to germs and toxic substances Short Description/ Secondary Disaster  Epidemics: Viral, bacterial parasitic, fungal, or prion infections  Insect infestatio ns  Animal stampedes 28. Table 1-3, provides for ‘Nodal Ministry for Management/Mitigation of Different Disasters’ with regard to Biological Emergencies, Nodal Ministry is 33 notified as Ministry of Health and Family Welfare(MoHFW). Under paragraph 2.2.3.3, Biological and Public Health Emergencies have been dealt with. The First paragraph of the above is as follows:- “...Disasters related to this sub- group are biological emergencies and epidemics, pest attacks, cattle epidemics and food poisoning. Biological emergency is one caused due to natural outbreaks of epidemics or intentional use of biological agents (viruses and microorganisms) or toxins through dissemination of such agents in ways to harm human population, food crops and livestock to cause outbreaks of diseases. This may happen through natural, accidental, or deliberate dispersal of such harmful agents into food, water, air, soil or into plants, crops, or livestock. Apart from the natural transnational movement of the pathogenic organisms, their potential use as weapons of biological warfare and bioterrorism has become far more important now than ever before. Along with nuclear and chemical agents, many biological agents are now considered as capable of causing large-scale mortality and morbidity...” 29. Paragraphs 6 and 7 deals with “Building Disaster Resilience - Responsibility Framework, Part A and B”. Dealing with Biological and Public Health Emergencies in paragraph 7.15, following are the sub-heads under the paragraph: - 34 “7.15 Biological and Public Health Emergencies (BPHE) 7.15.1 Understanding Risk 7.15.2 Inter-Agency Coordination 7.15.3 Investing in DRR–Structural Measures 7.15.4 Investing in DRR- Non-structural Measures 7.15.5 Capacity Development 7.15.6 Climate Change Risk Management” 30. A detailed chart has been prepared under paragraph 7.15 in five parts and it shall be useful to notice the only first portion of paragraph 7.15.1, item 1, which is to the following effect: - “7.15.1 Understanding Risk Biological & Public Health Emergencies (BPHE) Sub-Thematic Area for DRR Central/State Agencies and their Responsibilities Centre# Responsibility - Centre State# Responsibility -State 1. Observation Networks, Information Systems, Monitoring, Research, Forecasting, Early Warning and Zoning/Mapping MHFW* (NCDC), MAFW, MHA, MOD, MOES, MOEFCC, MOR, MLBE, MEITY, NDMA Recurring/ Regular(RR)  Support training  Extend technical support for Medium Term(T2)  Establishment of Warning System  Strengthening Early IDSP and early warning systems at regional levels  Epidemiological disease mapping  Health facilities mapping 35 Recurring/ Regular(RR) Maintaining preventive measures as per norms Short Term(T1) Strengthening integrated health surveillance systems Medium Term(T2)  Establishing and HFWD*, DMD$, SDMA, RD, DRD, UDD, DWSD, EDD, PD, EFD, AHD, WCD, PRI/ULB, SLRTI, DDMA maintain community-based network sharing alerts for  Strengthening IDSP Long Term(T3) States should, modify or adapt IMD’s warning system according to thresholds applicable in each state 31. The other items apart from item (1) as noticed above in paragraph 7, which are relevant is as follows:- Biological & Public Health Emergencies (BPHE) Sub-Thematic Area for DRR Central/State Agencies and their Responsibilities Centre# Responsibility State# Responsibility - Centre -State 2. Hazard Risk Vulnerability and Capacity Assessment (HRVCA) MHFW*, MAFW*, MHA, MOD, MOES, MOEFCC, MSJE, NDMA Recurring/ Regular (RR) • Promote studies, documentation and research • Provide Training Technical & support • Studies on vulnerabilities and capacities covering social, physical, economic, ecological, gender, social inclusion and equity aspects Short-Term (T1) Develop guidelines Recurring/ Regular (RR) Support for organising training Extend technical support   3 Dissemination of warnings, data & information MHFW, MHA, MOD, MOES, MAFW, MOEFCC, NDMA HFWD, DMD$, SDMA, DRD, UDD, DWSD, EFD, AHD, WCD, DSJE, PRI, ULB, SLRTI, DDMA HFWD*, DMD$, SDMA, DRD, UDD, DWSD, EDD, PD, EFD, AHD, WCD, PRI, ULB, SLRTI, DDMA 36     Recurring/ Regular (RR) Updating HRVCA Identifying the vulnerable population/ communities/ settlements Identification of groups requiring special attention Conduct audit of equipment and hu man resource requirements Short term(T1) Constitute/ strengthen the mechanisms for consultation with experts and stakeholders   Short Term (T1) Create awareness preventive measures Extensive IEC campaigns to create awareness through print, electronic and social media Medium Term (T2) Specific messages for highly vulnerable groups such as elderly, young children, outdoor workers and slum 4 Disaster Data Collection and Management MHA* , MOSPI, all ministries/ depts. 37 residents Recurring/ Regular (RR) Systematic data management of data on disaster damage and loss assessments Short Term (T1) Disaster Damage and Losses 2005- 2015 baseline DMD$, SDMA, all depts. Recurring/ Regular (RR) Systematic data management of data on disaster damage and loss assessments Short Term (T1) Disaster Damage and Losses 2005-2015 baseline Notes: (#) Every ministry, department or agency of the government – central and state – not specifically mentioned will also have both direct and indirect supporting role depending on the disaster, location and context. (*) The ministry, department or agency with this symbol has or is deemed to have a nodal or lead role, while others mentioned have a direct or explicit supporting role. ($) DMD —Disaster Management Department: The state government department acting as the nodal department for disaster management, which is not the same in every state/UT. 32. Paragraph 7.15.2 deals with inter-agency coordination in these items. Paragraph 7.15.3 deals with investing in DRR – Structural measures. Paragraph 7.15.4 deals with investing in DRR – Non- structural measures. Paragraph 7.15.5 deals with capacity development. Paragraph 7.15.6 deals with climate change risk management. The plan, thus, 38 contains detailed treatment of Biological and Public Health Emergencies as noticed above, which have been detailed at pages 117 to 130 of the Annexure-R1 of the counter affidavit. All aspects of Biological and Public Health Emergencies have been, thus, dealt in systematic and planned manner. The Plan of 2019 in different paragraphs deals with entire framework. 33. The submission which has been pressed by petitioner is that despite existence of Plan, 2019, there has to be specific Plan dealing with COVID-19, hence, Union of India may be directed to prepare a National Plan under Section 11 for COVID-19. Section 11 of the Act provides that there shall be a plan for Disaster Management for the whole of the Country. Sub-Section (3) of Section 11 requires that the National Plan shall include: - “11.(3) The National Plan shall include- (a) measures to be taken for the prevention of disasters, or the mitigation of their effects; 39 (b) measures to be taken for the integration of mitigation measures in the development plans; (c) measures to be taken for preparedness and capacity building to effectively respond to any threatening disaster situations or disaster; (d) roles and responsibilities of different Ministries or Departments of the Government of India in respect of measures specified in clauses (a), (b) and (c). ” 34. The object and purpose of preparing a National Plan is to cope up and tackle with all conceivable disasters which the country may face. When the measures have to be taken for preparedness and capacity building to effectively respond to any threatening disaster situation, the section does not contemplate preparation of Plan after a disaster has occurred. 35. National Plan and guidelines as contemplated by the statute for Disaster Management is by its very nature prior to the occurrence of any disaster and as 40 a measure of preparedness. It is not conceivable that a National Plan would be framed after the disaster has occurred. A National Plan encompasses and contemplate all kinds of disasters. 36. As noticed above, Biological and Public Health Emergencies has already been contemplated in the National Plan, 2019, which as noticed in table 1-1 under paragraph 1.13.1 specifically includes epidemics: Viral, Bacterial, Parasitic, Fungal and prion infections. Novel Coronavirus is an epidemic which has become a pandemic. Epidemics of different nature and extent have taken place in this country as well as other countries of the world. A pandemic is an epidemic, i.e., spread over multiple countries/ continents. An epidemic, as a disaster has been known and recognized throughout the world with which most of the countries are infected time and again. As noticed above, Plan-2019 is complemented by several plans, Standard Operating Procedures (SOPs), Manuals, Guidelines at all levels of the Government. 41 37. The National Disaster Management Authority, Government of India, had issued National Disaster Management Guidelines in July, 2008 on subject “Management of Biological Disasters”. The guideline specifically notices that “Biological Disasters” might be caused by epidemics, the guidelines states:- “Biological disasters might be caused by epidemics, accidental release of virulent microorganism(s) or Bioterrorism (BT) with the use of biological agents such as anthrax, smallpox, etc. The existence of infectious diseases has been known among human communities and civilisations since the dawn of the history. The Classical literature of nearly all civilisations record the ability of major infections to decimate populations, thwart military campaigns and unsettle nations. Social upheavals caused by epidemics have contributed in shaping history over the ages...” 38. Thus, the National Disaster Management Authority was well aware of the epidemics and had issued 42 guidelines in the year 2008 itself which has been further detailed in Plan-2019. All aspects of the epidemics, all measures to contain an epidemic, preparedness, response, mitigation have been elaborately dealt in Plan, 2019. Unless the National Plan as contemplated under Section 11 contains all aspects of disaster including the Biological and Public Health Emergencies, it will not be possible for the Governments to immediately respond and contain an epidemic. 39. The Disaster Management Act, 2005 contain ample powers and measures, which can be taken by the National Disaster Management Authority, National Executive Committee and Central Government to prepare further plans, guidelines and Standard Operating Procedure (SOPs), which in respect to COVID-19 have been done from time to time. Containment Plan for Novel Coronavirus, 2019 has been issued by Ministry of Health and Family Welfare, Government of India, 43 copy of which updated up to 16.05.2020 has been brought on record as Annexure-R4. There are no lack of guidelines, SOPs and Plan to contain COVID-19, by Nodal Ministry and Annexure R-6 has been brought on record issued by Ministry of Health and Family Welfare, Government of India, i.e., Updated Containment Plan for Large Outbreaks Novel Coronavirus Disease, 2019 (COVID-19). 40. National Executive Committee as well as Nodal Ministry has issued guidelines and orders from time to time to regulate all measures to contain COVID-19. The petitioners are not right in their submissions that there is no sufficient plan to deal with COVID- 19 pandemic. COVID-19 being a Biological and Public Health Emergency, which has been specifically covered by National Plan, 2019, which is supplemented by various plans, guidelines and measures, there is no lack or dearth of plans and procedures to deal with COVID-19. 44 41. We may also notice that this Court in <cite>Gaurav Kumar Bansal Vs. Union of India and Others, (2017) 6 SCC 730</cite>, has noticed that National Plan under Section 11 has already been approved by National Disaster Management Authority. In paragraph 7 of the judgment, following was laid down: - “7. It was further pointed out that a National plan has been approved and placed on the website of NDMA in terms of Section 11 of the Act and the guidelines for minimum standards of relief under Section 12 of the Act have also been placed on the website of NDMA.” 42. In view of above discussion, we do not find any merit in the claim of the petitioner that Union of India be directed to prepare a National Plan under Section 11 for COVID-19. National Plan, 2019 have already been there in place supplemented by various orders and measures taken by competent authorities under Disaster Management Act, 2005, there is no occasion or need to issue any direction to Union of 45 India to prepare a fresh National Plan for COVID-19. We, thus, hold that Union of India is not obliged to prepare, notify and implement a fresh National Disaster Management Plan for COVID-19. QUESTION NO.II II) Whether the Union of India was obliged to lay down the minimum standards of relief under Section 12 of Act, 2005, for COVID-19 irrespective of earlier guidelines issued under Section 12 of the Act laying down the minimum standards of relief? 43. Section 12 of the Act, deals with guidelines for Minimum Standards of Relief. Section 12 is as follows:- “12. Guidelines for minimum standards of relief. —The National Authority shall recommend guidelines for the minimum standards of relief to be provided to persons affected by disaster, which shall include, — (i) the minimum requirements to be provided in the relief camps in relation to shelter, food, drinking water, medical cover and sanitation; 46 (ii) the special provisions to be made for widows and orphans; (iii) ex gratia assistance on account of loss of life as also assistance on account of damage to houses and for restoration of means of livelihood; (iv) such other relief as may be necessary.” 44. The petitioner’s case as noticed above is that the Centre should come up with detailed guidelines under Section 12(ii) and (iii) of Disaster Management Act, 2005, recommending special provisions to be made for widows and orphans and ex-gratia assistance to be provided to the kith and kin of those losing life because of COVID-19 infections but also as a result of harsh lockdown restrictions. It is submitted that there are no guidelines providing for minimum standards for COVID-19. The above claim of the petitioner is refuted by the respondents. The respondents have brought on record the guidelines of minimum standards of relief under Section 12 as 47 existing prior to COVID-19, which has been filed as Annexure-R7 to the counter affidavit. The guidelines filed as Annexure-R7 deals with (i) definition of Relief and Rehabilitation Camp, (ii) Minimum standards in respect of Shelter in relief camps, (iii) Minimum Standards in respect of Food in relief camps, (iv) Minimum Standards in respect of Water in relief camps, (v) Minimum Standards in respect of Sanitation in relief camps, (vi) Minimum Standards in respect of medical cover in relief camps and (vii) Minimum Standards of Relief for Widows and Orphans. 45. The guidelines brought on record under Annexure- R7, which were in existence since before declaration 48 of COVID-19 pandemic, covers all statutory requirement as enumerated in Section 12. Section 12 contemplates minimum standards of relief to be provided to persons affected by disaster. The word ‘disaster’ mentioned in Section 12 encompasses all the disasters including the present disaster. Section 12 does not contemplate that there shall be different guidelines for minimum standards of relief for different disasters. 46. The uniform guidelines are contemplated so that persons affected by disaster are provided with minimum requirement in the relief camps in respect of shelter, food, drinking water, medical cover and sanitation and other reliefs as contemplated in the section. There being already guidelines for minimum standards in place even before COVID-19, the said guidelines for minimum standards holds good even for those who are affected by COVID-19. Section 12 does not contemplate that afresh guidelines for the 49 minimum standards of relief be issued with regard to COVID-19. The prayer of the petitioner to direct the Union of India to issue fresh guidelines under Section 12 to be provided to persons infected with COVID-19 is misconceived. 47. The Government of India vide order dated 14.03.2020 has decided to treat COVID-19, the pandemic, as a notified disaster for the purpose of providing assistance under State Disaster Response Fund, norms of assistance for ex-gratia payment to families of deceased persons, norms of assistance for COVID-19 positive persons requiring hospitalization and some other assistance to be provided from State Disaster Response Fund have been notified by the Government of India. 48. In view of the foregoing discussions, we hold that Union of India is not obliged to lay down minimum standards of relief under Section 12 of the 50 Act, 2005 for COVID-19 and the guidelines issued under Section 12 providing for minimum standards of relief holds good for pandemic COVID-19 also. QUESTION NOS. 3, 4 AND 5 III) Whether Union of India is obliged to utilise National Disaster Response Fund created under Section 46 of the Act for the purpose of providing assistance in the fight of COVID-19? IV) V) Whether all the contributions/grants from individuals and institutions should be credited to the NDRF in terms of Section 46(1) (b) of the Act rather than PM CARES Fund? Whether all the funds collected in the PM CARES Fund till date be directed to be transferred to the NDRF? 49. All the three questions being inter-related are taken together. The submissions of the petitioner centre around National Disaster Response Fund (NDRF) and PM CARES Fund. We need to notice the nature and character of these funds for appreciating the submissions made by the learned counsel for the parties. Chapter IX of the Disaster Management Act, 2005 deals with Finance, Accounts and Audit. Section 46 provides for National Disaster Response Fund. Section 46 reads: 51 “46. National Disaster Response Fund.—(1) The Central Government may, by notification in the Official Gazette, constitute a fund to be called the National Disaster Response Fund for meeting any threatening disaster situation or disaster and there shall be credited thereto— (a) an amount which the Central Government may, after due appropriation by Parliament by law in this behalf provide; made (b) any grants that may be made by any person or institution for the purpose of disaster management. (2) The National Disaster Response Fund shall be made available to the National Executive Committee to be applied towards meeting the expenses for emergency response, relief and rehabilitation in accordance with the guidelines laid down by the Central Government in consultation with the National Authority.” 50. The Central Government by notification dated 27.09.2010 which was published in Gazette Extraordinary on 28.09.2010 issued under sub-Section (1) of Section 46 of Act, 2005 constituted “National Disaster Response Fund”. The notification dated 27.09.2010 reads: 52 “MINISTRY OF HOME AFFAIRS NOTIFICATION New Delhi, the 27th September, 2010 s.O.2346(E).- In exercise of the powers conferred by sub-section (1) of Section 46 of the Disaster Management Act, 2005 (53 of 2005), the Central Government hereby constitutes the National Disaster Response Fund (hereinafter NDRF) for meeting any threatening disaster situation or disaster. [F.No.32-3/2010-NDM-I] R.K.SRIVASTAVA, Jr. Secy.” 51. Ministry of Home Affairs (Disaster Management Division) has issued guidelines on Constitution and Administration of the National Disaster Response Fund (NDRF). Section 46(1) as noted above contemplates crediting of two kind of amounts, i.e., (a) an amount which the Central Government may, after due appropriation made by Parliament by law in this 53 behalf provide; and (b)any grants that may be made by any person or institution for the purpose of disaster management. 52. The guidelines for constitution and administration of NDRF have been brought on record by the petitioner at page 129 of the writ petition. The guidelines came into force with effect from financial year 2010-11. Paragraph 3.1 enumerated the calamities covered under NDRF. Paragraph 3.1 is as follows: “3.1 Natural calamities of cyclone, drought, earthquake, fire, flood, tsunami, hailstorm, landslide, avalanche, cloud burst and pest attack considered to be of severe nature by Government of India and requiring expenditure by a State Government in excess of the balances available in its own State Disaster Response Fund (SDRF), will qualify for immediate relief assistance from NDRF.” 53. Paragraph 5 of the guidelines deals with contribution to the NDRF. Paragraphs 5.1 to 5.5 are as follows: “5.1 The closing balance of the NCCF at the end of financial year 2009-10 shall be 54 the opening balance of the NDRF in the year 2010-11. 5.2 Funds will be credited into the NDRF in accordance with the provisions of the Disaster Management Act, 2005. 5.3 The budget provision for transferring funds to the NDRF as mentioned in para 5.2 above shall be made in the Demand for grants no. 35- “Transfers to State and UT Governments” (under non-plan provision). Releases to State Governments will be made by the Ministry of Finance from this provision. 5.4 During the years 2010-15 transfers to the NDRF established in the Public Account of India will be made by operating the following heads of account: Major Head “2245-Relief on account of Natural Calamities – 80- General-797-Transfers to Reserve Funds and Deposit Account’- Transfer to National Disaster Response Fund. 5.5 Contributions made by any person or institution for the purpose of disaster management will also be credited to the NDRF. such contributions will be prescribed in due course.” Modalities covering 54. Paragraph 7.1 of the guidelines deals with assessment of relief assistance from the NDRF. Paragraph 7.1 is as follows: 55 “7.1 Upon a request made by a State not having adequate balance in its State Disaster Response Fund (SDRF), Ministry of Home Affairs or the Ministry of Agriculture, as the case may be, will assess whether a case for additional assistance from NDRF is made out under these guidelines and the approved items and norms of assistance under NDRF/SDRF. The following procedure will be adopted for making such assessment: (i) (ii) The memorandum of the State Government will be examined to assess the likely requirement of funds as per items and norms of expenditure under SDRF/NDRF. If the preliminary examination reveals that there are adequate funds in SDRF with the State for providing relief as per norms, the State would be advised accordingly. If the preliminary examination reveals that the State is in need of assistance, a Central Team will be deputed for making an on the spot assessment. 56 (iii) The report of the Central Team shall be examined by the National Executive Committee (NEC) constituted under section 8 of the DM Act, 2005. The NEC will assess the extent of assistance and expenditure which can be funded from the NDRF, as per the norms of NDRF/SDRF, make recommendations. and (iv) Based on the recommendations of NEC, a High Level Committee (HLC) will approve the quantum of immediate relief to be released from NDRF.” 55. The guidelines for administration of the NDRF have been revised with effect from financial year 2015-16 which have been brought on record at page 154 of the writ petition. Paragraph 3.1 of the guidelines is same as under guidelines for the financial year 2010-11. Paragraph 4.1 provides: “4.1 The NDRF will be operated by the Government of India for the purpose of providing immediate relief to people affected by the above mentioned calamities which are assessed as being of ‘severe nature’, following the procedure described in para 7 of these guidelines. NDRF is classified in the Public Account in the 57 sub-section (b) 'Reserve Funds not bearing Interest' of the Government of India under the major head 8235- ‘General and other Reserve Funds' – 119- National Disaster Response Fund”. 56. Paragraph 5 deals with contribution to the NDRF and there are some changes in the guidelines in paragraph 5. Paragraphs 5.1 to 5.4 of the new guidelines are as follows: “5.1 The closing balance of the NDRF at the end of financial year 2014-15 shall be the opening balance of the NDRF in the year 2015-16. 5.2 Funds will be credited into the NDRF in accordance with the provisions of the section 46 (a) & (b) of Disaster Management Act, 2005. 5.3 The budget provision for transferring funds to the NDRF as mentioned in para 5.2 above shall be made in the Demand for grants no. 35- “Transfers to State and UT Governments” (under non-plan provision). Releases to State Governments will be made by the Ministry of Finance from this provision. 58 5.4 During the years 2015-20 transfers to the NDRF established in the Public Account of India will be made by operating the following heads of account: Major Head “2245-Relief on account of Natural Calamities – 80- General-797-Transfers to Reserve Funds and Deposit Account’-Transfer to National Disaster Response Fund.” 57. The above is the scheme. As per paragraph 10 of the new guidelines, expenditure from NDRF is meant to assist a State to provide immediate relief in those cases of severe calamity, where the expenditure required is in excess of the balance in the State’s SDRF. The NDRF is a statutory fund required to be audited by the Comptroller & Auditor General of India, which was constituted under Act, 2005 and is still in existence for the purposes as enumerated in the statute as well as in the guidelines issued under Act, 2005. 58. We may now notice the PM CARES Fund. Petitioner has brought on record certain details of PM CARES Fund as Annexure-P13. The details about the PM CARES Fund as brought on record as Annexure-P13 of the writ petition are as follows: 59 “Keeping in mind the need for having a dedicated national fund with the primary objective of dealing with any kind of emergency or distress situation, like posed by the COVID-19 pandemic, and to provide relief to the affected, a public charitable trust under the name of ‘Prime Minister’s Citizen Assistance and Relief in Emergency Situations Fund’ (PM CARES Fund)’ has been set up. Click here to Donate Online. Objectives : • To undertake and support relief or assistance of any kind relating to a public health emergency or any other kind of emergency, calamity or distress, either man-made or natural, including the creation or upgradation of healthcare or pharmaceutical facilities, other necessary infrastructure, funding relevant research or any other type of support. • To render financial assistance, provide grants of payments of money or take such other steps as may be deemed necessary by the Board of Trustees to the affected population. • To undertake any other activity, which is not inconsistent with the above Objects. 60 Constitution of the Trust : • Prime Minister is the ex-officio Chairman of the PM CARES Fund and Minister of Defence, Minister of Home Affairs and Minister of Finance, Government of India are ex-officio Trustees of the Fund. • The Chairperson of the Board of Trustees (Prime Minister) shall have the power to nominate three trustees to the Board of Trustees who shall be eminent persons in the field of research, health, science, social work, law, public administration and philanthropy. • Any person appointed a Trustee shall act in a pro bono capacity. Other details : from • The fund consists entirely of voluntary contributions individuals/ organizations and does not get any budgetary support. The fund will be utilised in meeting the objectives as stated above. • Donations to PM CARES Fund would qualify for 80G benefits for 100% exemption under the Income Tax Act, 1961. Donations to PM CARES Fund will also qualify to be counted as Corporate Social Responsibility (CSR) expenditure under the Companies Act, 2013 • PM CARES Fund has also got exemption under the FCRA and a separate account for receiving foreign donations has been opened. This enables PM CARES Fund to 61 accept donations and contributions from individuals and organizations based in foreign countries. This is consistent with respect to Prime Minister’s National Relief Fund (PMNRF). PMNRF has also received foreign contributions as a public trust since 2011. CLICK HERE TO DONATE ONLINE” 59. From the above details, it is clear that PM CARES Fund has been constituted as a public charitable trust. After outbreak of pandemic COVID-19, need of having a dedicated national fund with objective of dealing with any kind of emergency or distress situation, like posed by the COVID-19 pandemic, and to provide relief to the affected, a fund was created by constituting a trust with Prime Minister as an ex- officio Chairman of PM CARES Fund, with other ex- officio and nominated Trustees of the Fund. The PM CARES Fund consists entirely of voluntary contributions from individuals/organisations and does not get any Budgetary support. No Government money is credited in the PM CARES Fund. 62 60. After noticing constitution of NDRF as well as PM CARES Fund now we may notice the contentions raised by Shri Dave. The submission of Shri Dave is that the earlier guidelines for administration of NDRF which came into force with effect from financial year 2010- 11 have been modified by new guidelines with effect from financial year 2015-16, and now it is not possible for any person or institution to make contribution to the NDRF. Shri Dave submits that paragraph 5.5 of earlier guidelines has been deleted to benefit the PM CARES Fund so that all contributions by any person or institution should go in the PM CARES Fund. Shri Dave submits that deletion of paragraph 5.5 of earlier guidelines (at page 130) in the new guidelines (at page 154-155) makes it clear that now it is not possible for any person or institution to make any contribution to NDRF. 61. There are two reasons for not accepting the above submission. Firstly, paragraph 5.5 of earlier guidelines which contemplated contributions by any 63 person or institution for the purpose of disaster management to the NDRF are very much still there in the new guidelines, which have come into force with effect from financial year 2015-16. New guidelines contain the same heading, i.e., “Contribution to the NDRF” and guideline 5.2 provides “Funds will be credited into the NDRF in accordance with the provisions of the Section 46(1)(a) & (b) of the Disaster Management Act, 2005.” The above guideline 5.2 specifically referred to Section 46(1)(a) & (b) and Section 46(1)(b) expressly provides that any grants that may be made by any person or institution for the purpose of disaster management shall be credited into the NDRF. The submission that after the new guidelines, it is not possible for any person or institution to make any contribution to the NDRF is, thus, misconceived and incorrect. According to the statutory provisions of Section 46 as well as new guidelines enforced with effect from financial year 64 2015-16 any person or institution can still make contribution to the NDRF. 62. Secondly, the PM CARES Fund has been constituted in the year 2020 after outbreak of pandemic COVID-19 whereas the new guidelines came into force with effect from 2015-16, on which date the PM CARES Fund was not in existence, hence, the submission that new guidelines were amended to benefit the PM CARES Fund is wholly misconceived. 63. Another limb of submission of Shri Dave is that although the Government of India vide its letter dated 14.03.2020 has decided to treat COVID-19 as a notified disaster for the purpose of providing assistance under SDRF but no similar notification has been issued for the purpose of providing assistance for COVID-19 under NDRF. The notification dated 14.03.2020 has been brought on record as Annexure-P10 of the writ petition which reads as follows: 65 “No.33-4/2020-NDM-I Government of India Ministry of Home Affairs (Disaster Management Division) C-Wing, 3rd Floor, NDCC-II Jai Singh Road, New Delhi -110001 Dated 14.03.2020 To The Chief Secretaries (All States) Subject: Items and Norms of assistance from the State Disaster Response Fund (SDRF) in wake of COVID-19 Virus Outbreak Sir/Madam I am directed to refer this Ministry’s letter No.32-7/2014 dated 8th April, 2015 on the above mentioned subject. 2. The Central Government, keeping in view the spread of COVID-19 virus in India and the declaration of COVID-19 as pandemic by the World Health Organisation (WHO), by way of a special one time dispensation, has decided to treat it as a notified disaster for the purpose of providing assistance under SDRF. A list of items and norms of assistance for containment of COVID-19 Virus in India eligible from SDRF is annexed. Yours faithfully, 66 (Sanjeev Kumar Jindal) Joint Secretary to Government of India Tel: 23438096 Copy to AS(UT), MHA for making similar provisions for utilization of UT Disaster Response Funds by the Union Territories. CC for information: PS to HM/MOS(N)/HS” 64. After issuance of the above notification, the Government of India, Ministry of Home Affairs (Disaster Management Division) issued order of 03.04.2020 on the subject: “Advance release of Central share from State Disaster Risk Management Fund (SDRMF) for the year 2020-21”. By the said order the Central Government has released first instalment of Rs. 11,092/- crores out of Rs.22,184/- crores which was the Central Share of SDRMF. All States have been allocated different amounts for the purpose of providing assistance under SDRMF. Annexure to the said notification is at page 161, which indicates that maximum grant allocated was to the State of Maharashtra as Rs.1,611/- crores as first instalment 67 and minimum amount to State of Goa, i.e., Rs.6/- crores by the Centre. The notification dated 14.03.2020 clearly permits providing the assistance under SDRMF for COVID-19. In event, any State expenditure is in excess of the balance in the State’s SDRMF, the State is entitled for the release of fund from NDRF as it is clear from new guidelines filed at pages 154 to 158 of the writ petition. The submission of the petitioner that NDRF cannot be used for any assistance for COVID-19, thus, cannot be accepted. 65. There is one more aspect of the matter which needs to be noted. When the Centre is providing financial assistance to the State to take measures to contain COVID-19, as we have noticed above that by order dated 03.04.2020 first instalment of Rs. 11,092/- crores which is the Central Share to the SDRMF has been given and there is nothing on record that any State has exceeded the expenditure in excess 68 of the balance in the State’s SDRMF, there is no occasion of asking more fund by the State from NDRF. When the Central Government is providing financial assistance to the States to contain COVID-19 it is not for any PIL petitioner to say that Centre should give amount from this fund or that fund. The financial planning is in the domain of the Central Government, which financial planning is made after due deliberation and consideration. We, thus, do not find any substance in the submission of the petitioner that there is any statutory restriction/prohibition in utilization of NDRF for COVID-19. More so when sub-section (2) of Section 46 specifically provides that NDRF shall be made available to the National Executive Committee to be applied towards meeting the expenses for emergency response, relief and rehabilitation in accordance with the guidelines laid down by the Central Government, the NDRF can be used for containment of COVID-19. 69 66. Further as observed above, it is for the Central Government to take the decision as from which fund what financial measures are to be taken and it is neither for PIL petitioner to claim that any financial assistance be made from particular fund nor this Court to sit in judgment over the financial decisions of the Central Government. 67. The PM CARES Fund is a public charitable trust and is not a Government fund. The charitable trusts are public trusts. Black’s Law Dictionary, Tenth Edition defines charitable trust in following words: “charitable trust. A trust created to benefit a specific charity, specific charities, or the general public rather than a private individual or entity. Charitable trusts are often eligible for favorable tax treatment.” 68. The mere fact that administration of the Trust is vested in trustees, i.e., a group of people, will not 70 itself take away the public character of the Trust as has been laid down in <cite>Mulla Gulam Ali & Safiabai D. Trust Vs. Deelip Kumar & Co., (2003) 11 SCC 772</cite>. In paragraph 4, this Court laid down: “4. The mere fact that the control in respect of the administration of the Trust vested in a group of people will not itself take away the public character of the Trust……………………………..” 69. The contributions made by individuals and institutions in the PM CARES Fund are to be released for public purpose to fulfill the objective of the trust. The PM CARES Fund is a charitable trust registered under the Registration Act, 1908 at New Delhi on 27.03.2020. The trust does not receive any Budgetary support or any Government money. It is not open for the petitioner to question the wisdom of trustees to create PM CARES fund which was constituted with an objective to extend assistance in the wake of public health emergency that is pandemic COVID-19. 71 70. Shri Dave during submissions has fairly submitted that he is not questioning the bona fide of constitution of PM CARES Fund. His submission is that NDRF is audited by CAG but PM CARES Fund is not audited by CAG rather by a private Chartered Accountant. The nature of NDRF and PM CARES Fund are entirely different. The guidelines issued under Act, 2005 with regard to NDRF specifically provides for audit of the NDRF by the Comptroller & Auditor General of India whereas for public charitable trust there is no occasion for audit by the Comptroller & Auditor General of India. 71. We may notice one more aspect with regard to COVID-19. We have noticed above that guidelines which were issued for constitution and administration of NDRF and State’s SDRMF, the guidelines provided utilization of fund for limited calamities, which did not include any biological and public health emergency. We have already noticed Clause 3.1 of 72 guidelines for administration of NDRF, which did not provide for the calamities which cover the biological and public health emergency. Thus, under the guidelines which were in existence with effect from financial year 2015-16 neither NDRF nor SDRF covered the biological and public health emergencies. It was only by notification dated 14.03.2020 that COVID-19 was treated as notified disaster for the purpose of providing assistance under SDRF. Obviously prior to this notification dated 14.03.2020 no contribution by any person or institution in the NDRF could have been made with respect to specified disaster, namely, biological and public health emergency like COVID-19, Outbreak of COVID-19 in India as well as other countries of the World required immediate enhancement in the infrastructure of medical health and creation of fund to contain COVID-19. At this need of the hour no exception can be taken to the constitution of a public charitable trust, namely, PM CARES Fund to have necessary financial resources to meet the 73 emergent situation. 72. The NDRF and PM CARES Fund are two entirely different funds with different object and purpose. In view of the foregoing discussions, we answer question Nos.3, 4 and 5 in following manner: Answer 3. The Union of India can very well utilize the NDRF for providing assistance in the fight of COVID-19 pandemic by way of releasing fund on the request of the States as per new guidelines. Answer 4. Any contribution, grant of any individual or institution is not prohibited to be credited into the NDRF and it is still open for any person or institution to make contribution to the NDRF in terms of Section 46(1)(b) of the Act, 2005. The contribution by any person or by any 74 institution in PM CARES Fund is voluntary and it is open for any person or institution to make contribution to the PM CARES Fund. Answer 5. The funds collected in the PM CARES Fund are entirely different funds which are funds of a public charitable trust and there is no occasion for issuing any direction to transfer the said funds to the NDRF. 73. In view of the foregoing discussions, the prayer ‘a’ and ‘b’ made in the writ petition are refused. With respect to prayer ‘c’, we make it clear (i) that there is no statutory prohibition for the Union of India utilizing the NDRF for providing assistance in the fight of COVID-19 in accordance with the guidelines issued for administration of NDRF; (ii) there is no statutory prohibition in making any contribution by any person or institution in the NDRF as per Section 46(1)(b)of the Act, 2005. 75 74. The prayer of the petitioner to direct all the funds collected in the PM CARES Fund till date to be transferred to the NDRF is refused. 75. Subject to clarification of law as made above, the writ petition is dismissed.

Respondent No. 1 filed Writ Petition No. 12564 of 2006 in the High Court of Karnataka for quashing the preliminary Notification dated 06.02.2002 issued under Section 17(3) of the Karnataka Urban Development Authority Act, 1987 (hereinafter referred to as ‘Act’) and final declaration under Section 19 (3) of the Act dated 27.11.2003. The said 1 Page 1 Notification pertained to acquisition of 54 acres and 39 guntas which included 2 acres and 36 guntas in Survey No. 311/A/1 in Byridevana Koppa Village, Hubli Taluk belonging to the First Respondent. The said Writ Petition was allowed by a judgment dated 02.04.2009 against which Writ Appeal No. 6258 of 2009 was filed by the Appellant. A Division Bench of the High Court dismissed the Writ Appeal by a judgment dated 24.03.2010. Aggrieved by the said judgment, the Appellant has approached this Court by filing this Appeal. 2. The First Respondent filed the Writ Petition stating that his family owns 2 acres and 35 guntas in Survey No. 311/A/1 in Byridevana Koppa Village, Hubli Taluk in which there were bore wells, cattle sheds, residential houses and standing trees. It was averred in the Writ Petition that a Notification under Section 17(3) of the Act was issued on 06.02.2002 but no notice was personally served on him. It was also stated in the Writ Petition that a Notification under Section 19(1) of the Act was issued on 07.10.2003 which was published in the Karnataka Gazette on 17.11.2003. It 2 Page 2 was stated in the Writ Petition that the First Respondent was not aware of the publication in the Gazette and that the Notification issued under Section 17 and the declaration issued under Section 19 of the Act were not served upon him. He was also unaware of the award proceedings. The First Respondent further stated in the Writ Petition that he came to know about the preliminary Notification only in August, 2005 when the officials of the Appellant visited the site and informed him about the acquisition. The First Respondent also stated in the Writ Petition that immediately after he came to know about the acquisition proceedings he approached the authorities and found that no layout was prepared and finalized. The First Respondent averred in the Writ Petition that the preliminary Notification under Section 17(3) of the Act was prepared without complying with the provisions of Section 15(1), 16 and 17 (1) of the Act. He further stated that due to non service of the notice, he lost an opportunity to file his objections. On the basis of the averments mentioned above, the First Respondent sought for quashing of the Notification issued under Section 17(3) 3 Page 3 and the declaration issued under Section 19(3) of the Act. 3. The Appellant filed its Statement of Objections in Writ Petition No. 12654 of 2006 in which it was stated that there were no structures on the acquired land and possession of the said land was taken on 02.09.2005. A Notification under Section 16(2) of the Land Acquisition Act, 1894 was published in the Gazette on 22.12.2006. It was also stated that personal notice was issued to the First Respondent on 11.09.2001 but he refused to receive the notice on 13.09.2001. The said notice was also published in Samyukta Karnataka Daily Newspaper on 26.07.2001 and Vijaya Karnataka Daily Newspaper on 27.07.2001. It was further averred that the First Respondent was aware of the Notification under Section 19(1) of the Act dated 07.10.2003 which is evident from the fact that he gave an application dated 30.01.2004 for dropping the acquisition proceedings. The said application was rejected on 28.02.2004. According to the Appellant, the acquisition Notification issued under Section 17(3) and the declaration issued under Section 19(3) of the Act were issued after complying with the 4 Page 4 relevant provisions of the Act and that interference by the High Court was unwarranted. 4. By a judgment dated 02.04.2009, a learned Single Judge of the Karnataka High Court allowed the Writ Petition by holding that the objections filed by the First Respondent were not considered before issuance of the final declaration and that the First Respondent was in possession of the land. The learned Single Judge recorded a finding that the property in question is situated in a corner of the layout and the scheme was not implemented in respect of the land belonging to the First Respondent. 5. The Division Bench confirmed the judgment of the learned Single Judge by holding that a perusal of the record indicated receipt of objections which were not considered by the Appellant. The Division Bench held that only a xerox copy of the original Mahazar drawn at the time of taking possession was produced in the Court. The Division Bench rejected the submission of the Appellant that possession of the land was taken. The Division Bench further found that the scheme remained unimplemented in respect of the land 5 Page 5 in dispute. 6. Mr. Basavaprabhu S. Patil, learned Senior Counsel appearing for the Appellant submitted that the findings of the High Court are contrary to the record. He submitted that the question of consideration of objections of the First Respondent did not arise as the averments in the Writ Petition are to the effect that he was not aware of the acquisition proceedings till the middle of August, 2005 and that he lost an opportunity of filing his objections. He took us through the minutes of the meeting of Hubli-Dharwad Urban Development Authority dated 06.02.2002 in which the recommendation for acquisition of the land was approved. The total land under acquisition for development of a housing scheme was shown as 54 acres and 39 guntas. An extent of 2 acres 36 guntas in Survey No. 311/A/1, belonging to the First Respondent forms part of 54 acres and 39 guntas. It was stated in the said minutes that the objections submitted by the land owners/interested persons were considered. It was clearly mentioned in the said minutes that the objections of farmers and interested 6 Page 6 persons in respect of lands admeasuring 32 acres and 28 guntas were examined by a one man committee. The First Respondent’s land was not part in the said land of 32 acres and 28 guntas. He also referred to the draft award dated 31.01.2005 in which the names of 13 persons who filed their objections were mentioned. The name of the First Respondent was not found therein. 7. Mr. Patil submitted that the authority considered all the objections that were filed by the landholders. The High Court went wrong in holding that the objections filed by the First Respondent were not considered. It was also submitted by Mr. Patil that the Mahazar that was produced by the Appellant before the High Court clearly showed that possession was taken. He also submitted that the Notification under Section 16(2) of the Land Acquisition Act, 1894 is conclusive proof of possession being taken by the authority. According to Mr. Patil, the judgment of the High Court suffers from apparent errors and is liable to be set aside. 8. Mr. Balaji Srinivasan, Advocate appearing for First 7 Page 7 Respondent submitted that the High Court was right in holding that the objections filed by the Respondent were not considered by the authorities. He also submitted that the landowners are in possession of the land even now. According to him, the High Court rightly refused to consider the xerox copy of the Mahazar produced by the Appellant to show that possession was taken. He further submitted that the scheme was not implemented in respect of the land in dispute. Pursuant to the liberty given by this Court, the First Respondent filed his written submissions in which he stated that there is a farm house along with a cattle shed on the land. A leave and licence agreement dated 16.12.2009 was filed along with written submissions to show that a mobile tower is erected on the land. The Respondent further stated in the said written submissions that the legal heirs of the original Respondent furnished their Statement of Objections dated 29.08.2001 to the Counsel. The said objections did not receive any consideration by the authorities. The Respondent is still in possession of the land which is not integral to the housing scheme. The 8 Page 8 Respondent submits that the judgment of the High Court be upheld. 9. The High Court quashed the Notification dated 05.02.2002 and declaration dated 27.11.2003 for the reasons that the objections filed by the landowners were not considered before issuance of the final declaration, that the possession of the land was not taken by the authorities and that the scheme was not implemented in respect of the property in question. The First Respondent pleaded in the Writ Petition that he was not aware of the Notification issued under Section 17(3) and the declaration issued under Section 19(3) of the Act. It was further averred in the Writ Petition that he was deprived of an opportunity of filing objections as notice was not given to him personally. We find force in the submission of Mr. Patil that the question of consideration of the objections which were not filed does not arise. In view of the findings recorded by the High Court that a perusal of the record disclosed that objections were filed by the Respondent and were not considered, we summoned and examined the relevant 9 Page 9 record carefully. The minutes of the meeting of Hubli-Dharwad Urban Development Authority held on 06.02.2002 was filed as Annexure P-2 along with the written submissions of the Appellant. The recommendations of the Chairman of the Hubli-Dharwad Urban Development Authority for acquisition of lands of Byridevana Koppa Village were discussed in the said meeting. The First Respondent’s land was part of the total extent of 54 acres and 39 guntas of land which was sought to be acquired for the housing scheme. It was stated in the minutes that objections filed by the landowners/interested persons of the lands included in the Notification issued under Section 17(3) of the Act were considered by the Chairman of the Hubli-Dharwad Urban Development Authority. It is clear from the said minutes that out of 19 blocks of land which were acquired, landowners of only 10 blocks filed their objections which were considered. Survey No. 311/A/1 does not find place in the said 10 blocks. A draft award dated 31.01.2005 was also placed on record by the Appellant in which the names of the landholders/ 10 Page 10 landowners whose lands were acquired and who filed objections were given. The Respondent’s name does not find place in the said list of persons who had submitted their objections. The High Court has committed an error in holding that the First Respondent filed his objections which were not considered. 10. Admittedly, the land was acquired for a housing scheme. It was submitted by the Appellant that plots have already been allotted. The land belonging to the First Respondent has been earmarked for civic amenities. In view of the interim order of status quo passed by the High Court on 13.09.2006, no development could take place on the land. The High Court ought not to have held that the Appellant was responsible for non-implementation of the scheme qua the land of the Respondent. It was submitted by the Appellant that the land is very much needed for development of civic amenities. 11. A Panchnama was filed by the Appellant to show that possession of the land was taken on 02.09.2005 in the presence of five Panchas. A Notification under Section 16(2) 11 Page 11 of the Land Acquisition Act, 1894 was published in the Karnataka State Gazette on 21.12.2005. It is no more res integra that a Notification issued under Section 16 (2) of the Land Acquisition Act, 1894 shall be evidence of the fact that possession was taken, though not conclusive. The prevaricating stands taken by the First Respondent about the possession of the land does not help his cause. On 30.01.2004, the power of attorney holder of the First Respondent submitted a representation to the Chairman of the Hubli-Dharwad Urban Development Authority requesting for exemption of the land from acquisition. He stated in the said representation that he was running a ginning factory on the said land. He also stated that he employed 40 workmen for whose housing the land was needed. The said representation was rejected by the Commissioner, Hubli-Dharwad Urban Development Authority on 28.08.2004 by stating that the acquisition proceedings were at a final stage and so the request cannot be acceded to. In the written submissions filed by the Respondent, it is stated that a farm house along with a 12 Page 12 cattle shed and a mobile tower exist on the land. Some photographs and a lease agreement have been filed in support of the said averments. The submission made by the First Respondent regarding the non-consideration of his objections is contrary to the pleading in the Writ Petition. The First Respondent is also guilty of taking contradictory stands in the matter of possession. We see no reason to doubt the Panchnama evidencing taking over of possession. In addition, the Notification under Section 16(2) of the Land Acquisition Act, 1894 was published in the Gazette. Any attempt made by the First Respondent to show that he is still in possession is of no avail. 12. In view of the above, the judgment of the High Court is set aside and the Appeal is allowed. Page 13

2. The   appellant­State   of   Kerala   is   assailing   the   order dated   10.07.2015   passed   by   the   High   Court   of   Kerala   at Ernakulam in W.A. No.369/2011 and W.A. No. 375/2011. The said appeals had arisen out of the proceedings in Writ Petition   No.1207/2005   wherein   through   the   order   dated 17.01.2011,   the   petition   was   disposed   of   to   the   extent   of quashing the order declining value of usufructs (Ex.41). The order  (Ex.39)  by   which  the   lease   in favour   of  Respondent had been terminated was upheld. It is in that view, the writ petitioner­M/s. Joseph & Company as also the respondent­ State of Kerala had filed the Writ Appeals to the extent they were   aggrieved.   The   learned   Division   Bench   of   the   High Court   through   the   impugned   order   dated   10.07.2015   has allowed the appeal filed by M/s. Joseph & Company, thereby setting aside the order terminating the lease and the appeal filed by State of Kerala was dismissed. It is in that light, the appellant­State of Kerala claiming to be aggrieved is before this court.  3. The genesis of the case is that erstwhile Travancore­ Cochin Government had by a notification in the year 1953 auctioned   certain   abandoned   portions   of   Beatrice   estate. One Mr. P.I. Joseph­responded to the said notification and offered his bid to an extent of 246.26 acres out of the South Block and took possession on 10.05.1955. However, no lease agreement   was   entered   into   between   him   and   the government.   In   the   meanwhile,   the   said   Mr.   P.I.   Joseph assigned   the   said   property   in   favour   of   Mr.   K.K.   Joseph. Pursuant to such transaction dated 28.02.1974 between Mr. P.I. Joseph and Mr. K.K. Joseph, the Government of Kerala, executed a lease deed dated 15.12.1979 in favour of Mr. K.K. Joseph. Though the lease deed was executed in favour of Mr. K.K.   Joseph,   it   is   contended   by   the   lessee   that   Mr.   K.K. Joseph was representing the partnership firm registered in the name and style M/s. Joseph & Company, of which he was the Managing Partner.  4. The   said   Mr.   K.K.   Joseph   thereafter   executed   a registered sale deed dated 16.12.1983 transferring an extent of 50 acres from the land leased in his favour, to one Mr. Raghavan. Subsequent thereto, Mr. K.K. Joseph is stated to have retired from the partnership firm after which Ms. Meera Scaria had become the Managing Partner representing the firm. The said Ms. Meera Scaria as the Managing Partner had   addressed   a  letter   dated   26.06.1990   seeking   leave   to rectify the defect of transferring a portion of the lease land to Mr.  Raghavan.   The   said   request  had   not   been  considered since the government through their letter dated 27.05.1989 had   indicated   the   intention   to   terminate   the   lease. Subsequent thereto the notice dated 19.02.1992 intimated the   lessee   about   the   order   to   terminate   the   lease   and   to prepare the inventory to take over possession.  5.     But the same was kept in abeyance as certain events of a general consideration regarding regularisation of all leases in the area was under process. However, said process had come to an end on 26.02.1999 whereby the government had cancelled   its   earlier   proposal   of   a   general   regularisation which   was   under   consideration.   In   that   background,   the notice dated 15.11.1999 was issued to Mr. K.K. Joseph to show cause why the lease in respect of the whole area of 246.50   acres   should   not   be   terminated   as   contemplated under clause 14 of the lease deed. Mr. K.K. Joseph replied to the same on 29.11.1999 indicating that he has retired from the   partnership   firm   and   that   Ms.   Meera   Scaria   is   the present Managing Partner who is to be notified. In the said process, the first round of litigation commenced challenging the action of the State Government to terminate the lease. The Writ Petitions bearing O.P. No. 20508/2002 and O.P. No. 30224/2002 filed by M/s. Joseph & Company and Mr. Raghavan respectively were set in motion. The said process after the Writ Appeal had resulted in the proceedings before this Court in C.A. No. 4169/2004. This Court through the order   dated   16.07.2004   permitted   the   appellant­State   of Kerala to issue fresh show cause notice regarding proposed termination of lease and the respondents were permitted to file   their   reply   to   the   show   cause   notice.   In   the   above background, the present round of proceedings commenced with   the   issue   of   the   notice   dated   29.07.2004   and conclusion of the process.  6. In the said notice the appellant­State of Kerala referred to two aspects to allege breach of terms of the lease. The main aspect alleging breach is in relation to entire leased property. It   is   alleged   that   Mr.   K.K.   Joseph   had   transferred   his leasehold   right   to   M/s.   Joseph   &   Company   without   the approval of the lessor with the intention to nullify the effect of clause 14 of the lease deed and he has thereafter retired from the firm in 1988. The other aspect alleging breach of the term is that an extent of the leased land measuring 50 acres has been sold without consent of the lessor, to one Mr. Raghavan. It   is   in   the   said   premise,   the   lease   was   sought   to   be terminated.   The   respondent­M/s.   Joseph   &   Company submitted a detailed reply dated 14.08.2004 seeking to justify their   action   and   to   contend   that   they   had   not   committed breach of the terms of lease deed. The respondent was also provided the opportunity of hearing, pursuant to which an order dated 26.11.2004 was passed whereby the termination of the lease in respect of the entire extent measuring 246.26 acres of reserve forest land was confirmed.  7. The   respondent   being   aggrieved   by   the   same   had preferred the Writ Petition as indicated supra. The learned Single Judge did not interfere with the order terminating the lease   and   the   writ   petition   was   dismissed   to   that   extent. Insofar as the aspect relating to the breach alleged regarding the transfer of lease to M/s. Joseph & Company by Mr. K.K. Joseph,   the   various   circumstances   were   referred   more particularly the documents which were at exhibits P10, P11, P12, P13 and P16 to P20 to indicate that the government had for all intents and purposes treated M/s. Joseph & Company as the lessee under the lease deed which was Exhibit P7 to the Writ Petition. However, in respect of the transfer of 50 acres in favour of Mr. Raghavan, the learned Judge was of the opinion   that   the   finding   relating   to   breach   due   to   such transaction being a finding of fact, did not call for interference in the Writ Petition.   8. The   learned   Division   Bench   had   negatived   the challenge   to   the   first   part   by   the   State   of   Kerala   and   the conclusion of the learned Single Judge that M/s Joseph & Company   is   the   lessee   was   held   to   be   valid   and   was   not interfered.   Further,   insofar   as   the   sale   in   favour   of   Mr. Raghavan,   the   learned   Division   Bench   had   taken   note   of Clause 12 contained in the lease deed between the appellant­ State of Kerala and M/s Joseph & Company which provided that the default if any committed could be remedied if the lessee is put on notice. The default can be confirmed only if the same is not remedied despite notice. It is in that view, the learned Division Bench was of the view that the requirement in Clause 12 of the lease agreement had not been complied with by the appellant­State of Kerala. Therefore, the learned Division Bench set aside the order terminating the lease. 9. We   have   heard   Mr.   Jaideep   Gupta,   learned   senior counsel for the appellant­State of Kerala, Mr. Joseph Markos, learned senior counsel and Mr. Thomas P Joseph, Learned Senior Advocate  on behalf of the respondents and  perused the   appeal  papers  including   the  writ  appeal  records  which had been secured from the High Court. 10. On   the   first   aspect   relating   to   the   breach   alleged   in view   of   the   transfer   of   lease   in   favour   of   M/s   Joseph   & Company by Mr. K.K. Joseph­the lessee, Mr. Jaideep Gupta, learned senior counsel has taken us through the documents to   indicate   the   sequence   that   the   property   in   fact   was auctioned in favour of Mr. P.I. Joseph who had transferred the lease in favour of Mr. K.K Joseph through the sale deed dated 28.02.1974. Though the government has subsequently validated the said transaction by executing a lease deed in favour of Mr. K.K. Joseph, the subsequent transfer by Mr. K.K Joseph to M/s Joseph & Company, a new lessee without prior consent of the government would constitute breach is his contention.  11. Having   noted   the   contention,   we   find   that   the   said issue need not detain us for long. At the outset, a perusal of the lease deed dated 15.12.1979 would no doubt disclose that Mr. K.K. Joseph in his individual name is referred to as the lessee of the other part.  The recital in the lease deed however depicts   that   the   earlier   transaction   in   favour   of   Mr.   P.I. Joseph   and   the   document   executed   by   Mr.   P.I   Joseph   in favour of Mr. K.K Joseph to assign the lease is referred in the document.   In   that   backdrop,   a   reference   to   the   sale   deed dated 28.02.1974 by which the sale was  made by Mr. P.I. Joseph to Mr. K.K. Joseph indicates that the purchaser Mr. K.K.   Joseph   has   been   described   as   the   Managing   Partner, M/s Joseph & Company, a registered partnership firm. The said aspect would ex­facie indicate that the contention of the appellant   that   M/s   Joseph   &   Company   had   come   into existence subsequently as a ploy to overcome and defeat the bar   contained   in   Clause   14   to   the   lease   deed   cannot   be accepted. Further, as already taken note, the learned Single Judge as also the learned Division Bench has referred to the various other documents more particularly at Exhibits P10, P11, P12, P13 and P16 to P20 in the writ proceeding records to indicate that the Government, for all intents and purposes had treated M/s. Joseph & Company as the lessee. Therefore, to   the   said   extent   on   the   first   aspect,   the   same   does   not constitute breach. Hence the conclusion reached by the High Court on that aspect does not call for interference.  12. The next aspect which arises for consideration is as to whether the sale to an extent of 50 acres from out of the lease area would amount to breach of clause 14 of the lease deed. For better appreciation, it would be appropriate to take note of   Clause   12   and   14   in   the   lease   deed   dated   15.12.1979, which have been referred. The same read as hereunder: ­ “12.   In   the   event   of   the   lessee   making   default   in   the observance of fulfillment of any of the covenants herein contained   the   Lessor   shall   be   at   liberty   at   any   time, thereafter, after giving notice to the lessee and hearing him   in   person   or   through   his   agent   or   vakil   duly appointed about the failure of the lessee to remedy such default that may be reported to the Lessor from time to time by the Chief Conservator of Forests, to terminate the lease and lessee shall forthwith vacate the land hereby leased   and   demised   and   notwithstanding   such termination of this lease, the lessee shall be liable for any loss   which   the   lessor   may   sustain   by   reasons   of   such default and all such improvements made by the Lessee on the land hereby leased and demised as exist at the time   of   vacating   the   same   must   be   left   intact   and   no compensation   can   be   claimed   by   the   lessee   for   such improvements.” “14. The lessee shall not be entitled to sublet or assign his   interest   in   the   said   lease   except   with   the   previous permission in writing of the lessor.”  13. From   a   perusal   of   the   relevant   clauses   in   the   lease deed   it   is   seen   that   clause   14   thereof   provides   that   the lessee shall not be entitled to sublet or assign his interest in the said lease except with the previous permission in writing obtained   from   the   lessor.   In   that   backdrop,   the   breach alleged   against   the   respondent   is   that   the   lessee   has assigned the interest in the leased land to an extent of 50 acres   in   favour   of   Mr.   Raghavan   without   the   previous permission of the lessor. The fact that such sale has taken place   cannot   be   in  dispute   nor   is   it   in   dispute.   The   said assignment has been made under the registered sale deed dated   16.12.1983.   The   question   therefore   is;   whether   the same would constitute breach of the terms in the lease deed so as to entail termination of the lease.  14. Mr. Joseph Markos, learned senior counsel contended, though such sale deed was executed, the possession of the property had not been handed over to Mr. Raghavan and the lessee M/s. Joseph & Company had continued to pay the lease rentals in respect of the entire property. It was next contended   that   even   assuming   that   the   execution   of   the document had constituted default, the lessee ought to have been notified to remedy such default and only if the same was not done, the lease could be terminated. In that regard, the   learned  senior  counsel  contended  that the  lessee   had submitted a letter to the government on 17.03.1990 seeking to rectify the default and if the same was accepted in terms of Clause 12, the breach contemplated in Clause 14 would not   survive.   It   is   his   further   contention   that   the   right   to forfeit   the   lease,   in   the   present   circumstance,   would   fall under Section 111(g) of the Transfer of Property Act (‘TP Act’ for   short)   which   calls   for   strict   construction   against   the lessor.   In   that   event   the   termination   of   the   entire   lease would not be sustainable for breach in respect of a portion of the leased land. Reference is also made to Section 112 of the T.P. Act to contend that the acceptance of lease rentals by the lessor, including for the said extent of 50 acres sold to Mr. Raghavan would constitute waiver of forfeiture. 15.  While taking note of the contention on behalf of the respondent­M/s. Joseph & Company regarding the benefit available to them under Clause 12 of the lease deed which had   not   been   complied   by   providing   an   opportunity   to remedy the default, it is necessary to note as to whether such benefit is available to rectify the breach alleged under Clause 14 of the lease deed as well and whether Clause 12 makes it mandatory to issue notice to rectify before action is taken. In order to, gather the intention of the parties, the nature of the transaction and the document as a whole is necessary to be considered. While on this aspect, what is striking to be noted is that the word employed in Clause 12 is ‘default’ and not breach. If this aspect is taken note and the remaining terms contained in the lease deed are taken note, keeping in view the admitted position that the leased land   is   situate   in   a   reserve   forest,   the   clauses   in   the agreement commencing from clause No. 5 to 11 indicates that   the   right   reserved   by   the   lessor   and   the   obligations imposed on the lessee are with regard to the compliance, to retain the characteristics of forest area and continue such other activities including collection of minor forest produce and   the   forest   officials   have   been   granted   the   right   to regulate   the   same   notwithstanding   plantation   was   the permitted use.  16. If in that context, Clause 12 is taken note, it indicates that the issue of notice is contemplated in the event of the lessee committing default and the liberty to terminate the lease is exercised. The concession provided is to rectify the default before the notice is issued. If there is failure of the lessee to remedy such default that may be reported to the lessor from time to time by the Chief Conservator of Forests. Before termination of the lease a notice is to be issued and be   heard   about   the   default   if   the   default   has   not   been remedied. The same would clearly indicate that the default referred to, the issue of notice there for and the fact that the same is based on the report to the lessor (State of Kerala) from  Chief  Conservator  of   Forests  is   that  the   rectification permitted is in respect of the default relating to deviation from the obligations contained in the covenants relating to maintaining the nature of the property and default should be of rectifiable nature. The Dictionary meaning of ‘default’ is;   failure   to   fulfil   an   obligation,   while   the   meaning   of ‘breach’  is an act of breaking a law, agreement or code of conduct. If the said distinction is kept in view, the breach if committed by subletting or assigning as provided in Clause 14, the same would lead to its consequences and the liberty to remedy the same is not mandatory.   All that Clause 12 signifies is that if default is reported and if such default is not remedied then termination can be made after issue of notice and hearing.   The cause for termination will be the default   and   permitting   to   remedy   the   same   is   only   an indulgence   to   be   shown.   Therefore,   the   learned   Division Bench was not justified in its conclusion that the non­issue of   notice   and   not   providing   opportunity   to   remedy   the default is fatal. In the instant facts, the reading of the lease deed as a whole would indicate that the right reserved to the lessor under Clause 14 is independent of Clause 12 and if the breach of that nature occurs, it is irreversible and it will have to be taken to its logical conclusion unless the lessor waives the right thereunder. 17. For better appreciation on the legal contention, we take note of Section 111(g) and Section 112 of the T.P. Act which was referred.  They read as hereunder: ­  “111. Determination of lease  — A lease of immoveable property determines— (a) xxxxxxx (b) xxxxxx (c) xxxxxx (d) xxxxxxx (e) xxxxxxx (f) xxxxxxxx (g) by forfeiture; that is to say, (1)in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re­enter; or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; [or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re­enter on the happening of such event]; and in [any of these cases] the lessor or his transferee   [gives   notice   in   writing   to   the   lessee   of]   his intention to determine the lease; 112.  Waiver of forfeiture  —A   forfeiture   under   section 111, clause (g) is waived by acceptance of rent which has become due since the forfeiture, or by distress for such rent, or by any other act on the part of the lessor showing an intention to treat the lease as subsisting:  Provided that the lessor is aware that the forfeiture has been incurred:  Provided also that, where rent is accepted after the institution of a suit to eject the lessee on the ground of forfeiture; such acceptance is not a waiver.” 18. The   contention   of   the   learned   senior   counsel  for   the respondent that a question of law could be raised at any stage is well taken and we do not see the reason to refer to the precedents relied on that proposition. Even that be so, the provisions contained in Sections 111 and 112 of the T.P. Act though taken note, in our opinion, the same cannot be considered   in   abstract   without   reference   to   the   factual foundation.   So   far   as   the   contention   that   the   lessee   had continued to pay the lease rentals in respect of the entire property   despite   the   sale   of   50   acres   to   Mr.   Raghavan, whether such acceptance of the lease rentals by the lessor was with knowledge of default by condoning the breach, is a question of fact which will have to be urged in the original proceedings   and   the   material   will   have   to   be   placed   on record   so   as   to   enable   the   original   authority   to   take   a decision on that aspect and render a finding on fact so that the Court at a later stage in the process of judicial review can   reassess   the   same   and   determine   as   to   whether   the benefit of Section 112 T.P.Act will be available. Therefore, in the instant case, the contention that the lease rentals were being paid in respect of the entire extent cannot be accepted outright as no contention was urged and details were not laid in the original proceedings. Further, in a matter of the present   nature   when  the   entire  lease   area  measured   vast extent of 246.26 acres and the allegation is of parting with the lease hold right of 50 acres from such lease area and in that circumstance when the lease rental in any event was being   paid   to   the   remaining   extent   of   196.26   acres,   the lumpsum   payment   of   lease   rental   cannot   be   taken advantage of to contend that the lease rental was continued to be paid and seek waiver of forfeiture. 19. When   there   was   breach   providing   the   right   to terminate the lease in respect of the entire leased land, even if the lease rental paid by the lessee has been accepted by the   appellant­lessor,   it   has   not   been   shown   that   the requirement of the conditions in the proviso to Section 112 of the T.P. Act is satisfied. In the present situation, the land is   leased   by   the   government   and   when   the   breach   had occurred the competent authority had issued the notice and the   proceedings   was   initiated.   Once   the   proceedings   had been initiated even if the lease rental was received the same is saved under the second proviso. Further the situation is also that the payment of the rental made to the government would in any event be accepted as different functions are performed by different offices and any amount tendered will be received. That cannot give any advantage to the lessee merely   because   the   rent   has   been   tendered   in   the government   office   and   the   same   has   been   innocuously accepted without there being specific reference to waiver.  20. On   the   question   of   waiver,   it   would   be   profitable   to refer   to   the   decision   of   this   court   in   the   case   of  <cite>Sarup Singh Gupta vs. S. Jagdish Singh and Others  (2006) 4 SCC 205</cite> wherein the contention relating to waiver due to acceptance of rent was considered, though in the context of Sections 111(h) and 113 of the T.P. Act, wherein it was held as hereunder: ­ “6.    Learned Senior Counsel also relied upon a decision of   a   learned   Single   Judge   of   the   Calcutta   High   Court, reported in AIR 1926 (Calcutta) 763, wherein It was held that   where   rent   is   accepted   after   the   notice   to   quit, whether   before   or   after   the   suit   has   been   filed,   the landlord thereby shows an intention to treat the lease as subsisting and, therefore, where rent deposited with the Rent Controller under the Calcutta Rent Act is withdrawn even after the ejectment suit is filed, the notice to quit is waived.   In   our   view,   the   principle   laid   down   in   the aforesaid judgment of the High Court is too widely stated, and cannot be said to be an accurate statement of law. A mere perusal of Section 113 leaves no room for doubt that   in   a   given   case,   a   notice   given   under Section 111,   Clause   (h),   may   be   treated   as   having   been waived,   but   the   necessary   condition   is   that   there must be some act on the part of the person giving the notice   evincing   an   intention   to   treat   the   lease   as subsisting. Of course, the express or implied consent of the person to whom such notice is given must also be established. The question as to whether the person giving the notice has by his act shown an intention to treat the lease as subsisting is essentially a question of fact. In reaching a conclusion on this aspect of the matter, the Court must consider all relevant facts and circumstances, and the mere fact that rent has been tendered and accepted, cannot be determinative. 7.     A   somewhat   similar   situation   arose   in   the   case   in <cite>Shanti Prasad Devi v. Shankar Mahto</cite>. That was a case where the landlord accepted rent even on expiry of the period of lease. A submission was urged on behalf of the tenant in that case that Section 116, Transfer of Property Act was attracted and there was a deemed renewal, of the lease.  Negativing the contention, this Court observed that   mere   acceptance   of   rent   for   the   subsequent months in which the lessee continued to occupy the premise even, after the expiry of the period of the lease, cannot be said to be a conduct signifying his assent to the continuing of the lease even after the expiry   of   the   lease   period.   Their   Lordships   noticed the conditions incorporated in the agreement itself, which provided for renewal of the lease and held that those conditions having not been fulfilled, the mere acceptance of rent after expiry of period of lease did not signify assent to the continuance of the lease.”                                           (Emphasis supplied) In that view, the waiver as contended by the learned senior counsel for the respondent­lessee is unsustainable. 21. That apart, the contention that the lessee­ M/s. Joseph & Company had continued in possession of the said extent of 50   acres   even   after   sale   and   therefore   there   is   no   default cannot be accepted for more than one reason. To decipher this   aspect,   a   perusal   of   the   sale   deed   dated   16.12.1983 which was produced as exhibit R3(b) in the writ proceedings would indicate the relevant recitals as follows: ­  “I   have   absolute   right   to   sell   the   property   in   the schedule.  I   have  decided   to   sell   you   50   acres   of   the land   in   the   schedule   below   along   with   the   right   to travel through the rest of the land in my possession. The   amount   decided   as   the   price   of   he   said   land   is   Rs. 45000.  Having   received   the   full   payment   of   Rupees forty   five   thousand,   I   give   you   absolute   right   and possession   over   the   aforesaid   land   in   the   schedule along   with  the  rights   of   transportation   through   the rest of the property.  The property described in the schedule below belongs to the Cochin Government and I have leasehold right over the same.  From today on I have no objection in you keeping in   possession   and   enjoying   the   absolute   right   of   the property   described   in   the   schedule   together   with   the right of transport. Hereon you shall pay the lease rent directly   to   the   Government.   All   taxes   to   the Government may henceforth be paid by you. Myself, the company or any of our successors may have no right over schedule property.  I   affirm   that   I   will   not   obstruct   your   travelling through the rest of Beatrice Estate. By this deed you have the right to avail yourselves of the right to such transport.  I hereby assure you that I have the right for the sale of this property and that there are no arrears of lease rent due to the Government as any other dues or attachment of civil or revenue nature relating to the property and in case any loss is sustained by the purchaser against this assurance. I shall be responsible for such loss.”   A perusal of the extracted portion from the sale deed       (Emphasis supplied) 22. dated 16.12.1983 would indicate the outright nature of sale of   a   portion   of   the   leased   land.   It   is   sold   for   a   sale consideration despite knowing that the property belonging to the government is granted under lease. The recital in fact, categorically indicates that the absolute right and possession has   been   given   and   it   has   also   been   stated   therein   that henceforth the purchaser, Mr. Raghavan is to pay the lease rent   directly   to   the   government   and   all   taxes   to   the government are also to be paid by him. Further, neither Mr. K.K. Joseph nor the partnership firm has retained any right over the property sold under that document. Therefore, the document  itself   would   indicate   the   intention  of   the   parties and also the fact that possession was parted without consent of the lessor which was a clear breach of Clause 14 in the lease deed. 23. In   addition,   in   the   reply   dated   29.11.1999   from   Mr. K.K.   Joseph,   to   the   notice   dated   15.11.1999   from   the Divisional Forest Officer, he has stated that even after he had retired from the firm, the firm was pursuing its efforts to get the said 50 acres assigned to Mr. Raghavan, reassigned to the firm   and   thereby   remedy   the   default   as   contemplated   in Clause 12 of the lease deed. Therefore, the fact that there was a   breach   committed   was   also   within   the   knowledge   of   the lessee though they were seeking to take shelter under Clause 12. That apart, the letter dated 26.06.1990 addressed to the government by M/s. Joseph & Company through Ms. Meera Scaria, inter­alia states as follows: ­    “If   this   reconveyance   is   effected,  the   entire   property included in the lease deed executed by Sh. K.K. Joseph and registered as document No.1983 of 1979 of Nenmara, Sub Registry Office  will come back to the possession of M/s. Joseph & Company which is the original lessee.”     (Emphasis supplied) The   said   statement   would   clarify   that   the   possession   had been   parted   and   it   was   only   being   indicated   that   on   re­ conveyance being made, the possession would come back to the lessee. Therefore, the contention put forth by the learned senior counsel for the respondent that the possession had not been   parted   and   the   lease   rental   was   being   paid   by   them cannot be accepted as a mitigating factor in the  facts and circumstances of this case. 24. Though   an   attempt   is   made   to   contend   that   an opportunity ought to have been granted to remedy the default in view of the provision contained in Clause 12 of the lease deed in which event the default would stand remedied, the same cannot come to the aid of the respondent for the reason stated   supra.   Further,   factually   also  it  is   to  be  noted   that except   addressing   the   letter   dated   26.06.1990,   the   lessee­ M/s. Joseph & Company did not take any concrete steps to either cancel the sale deed or to physically indicate that the possession is back with the lessee and the transaction has been   nullified.   Be   that   as   it   may,   even   otherwise   in   the instant   facts   the   breach   was   not   of   the   nature   which   was contemplated for rectification as provided under Clause 12 of the   lease   deed.   Therefore,   it   is   too   late   in   the   day   for   the respondent   to   contend   that   there   was   non­compliance   of Clause 12 before the right of the lessor to terminate the lease as provided under Clause 14 is exercised. 25. The alternate contention urged by the learned senior counsel for the respondent­lessee is that even if the breach is held against the lessee, the entire lease cannot be forfeited in view of the provision in Section 111(g) of T.P. Act. The learned senior counsel in order to persuade us on this aspect has referred to certain decisions which will be adverted to here below. 26. Having noted the contention, firstly, a perusal of clause 14 no doubt does not state ‘a part thereof’ as contended by the learned senior counsel. However, that does not mean that a breach committed in respect of a part of the leased land cannot   be   construed   as   breach   and   would   disentitle   the lessor   to   exercise   the   right   thereunder.   Secondly,   Section 111(g)   does   not   suggest   that   in   respect   of   the   lease   as   a whole,   the   forfeiture   should   be   limited   only   to   the   portion regarding which the breach is alleged. The breach is of not adhering to the assurance given to lessor in respect of the property belonging to the lessor, be it the whole or a part of it. In   this   regard,   the   decision   relied   on   in   the   case   of  <cite>Sh. Shiam Behari Lal Gour and Others vs. Madan Singh AIR (32) 1946 Allahabad 298</cite>  is a circumstance where the suit was   decreed   for   a   declaration   that   the   lease   rights   of   the defendants in the leased land have been determined and the plaintiff is entitled to possession. In that circumstance, the point which arose for consideration is, whether the plaintiff is in   the   events   which   have   happened,   entitled   to   such declaration and whether in that circumstance there has been forfeiture.   No­doubt   as   contended   by   the   learned   senior counsel,   the   issue   that   was   settled   is   that   the   law   leans against   forfeiture.   Such   consideration   in   the   said   suit   was after   noting   the   nature   of   right   that   was   claimed   to   the property   by   the   lessor   wherein   there   was   rival   claims   of succession to the property.  27. In the case, <cite>A. Venkataramana Bhatta and Ors. vs. Krishna Bhatta  and Ors  AIR   1925   Madras   57</cite>,   the   High Court no doubt considered the case against forfeiture of the entire lease when there was partial alienation by taking a leaf from   the   construction   adopted   in   England,   based   on   the general   principles   of   equity   and   the   same   was   followed   in India. In the said case, the equitable principle was applied in a   circumstance   where   the   lessee   himself   in   fact   was   the owner of the property. He had mortgaged the same and had obtained lease of a portion of the mortgage property from his mortgagee. From such property which was obtained on lease, a portion thereof was again mortgaged by him to a different mortgagee which was termed as breach of the terms of lease. In that circumstance, the forfeiture was limited only to the portion which was mortgaged to a third­party mortgagee after obtaining on lease from the first mortgagee.  28. In the case, <icite>Grove vs. Portal 1902 1 CH 727</icite>, the lease given was of fishing in certain portions of the river but with the condition not to sublet without the consent of the lessor in writing.  When  breach was  alleged,  the  lessee  contended that he granted authority to another person only to the extent as provided in the lease. The lessor, however, contended that it constituted breach as the lessee assigned it to third person. In   that   situation,   it   was   held   that   the   covenant   did   not expressly apply to any part of the premises as well as to the whole   since   the   lessee   was   not   precluded   from   granting license to another person (limited to two rods) to fish in the river   during   the   residue   of   the   term.   The   consideration therein would not be relevant in the instant case. In the case, <cite>Cook vs. Shoesmith (1951) 1 KB­752</cite>, it was the case where the dwelling house was let to the tenant wherein, he agreed that he will not sublet. However, the tenant had sublet two rooms of the house due to which the landlord filed the suit for possession  alleging breach of  the  agreement.  The court relied   on   the   dictum   of   <cite>Lord   Elson   in   Church   vs.   Brown</cite> wherein it was held that the principle of an undertaking not to   sublet   the   premise   was   not   broken   since   ‘the   premise’ described   the   whole   of   what   is   demised   and   there   are   no words such as a tenant had agreed not to sublet any part of it. In that circumstance, it was held that there was no breach of the agreement.  29. In,  <cite>Swarnamoyee Debya vs. Aferaddi and Ors.  AIR 1932 Calcutta 787</cite>, it was a case where ejectment was sought for   unauthorised   transfer   by   the   defendant   which   was contended   to   have   broken   the   condition   in   the   document creating the tenancy. In that circumstance, it was held that the usufructuary mortgage was not of the entire holding and upon the covenant in the lease, no forfeiture was incurred by the transaction. The question which was considered therein was with regard to the construction of the lease which had arisen in that case and a decision to that effect was taken. In the   case,  <cite>Keshab   Chandra   Sarkar   and   Ors.   vs.   Gopal Chandra Chanda  AIR 1960 Calcutta 609</cite>, the plaintiff had sued   for   recovery   of   possession   contending   unauthorised transfer   of   the   leased   land   without   the   consent   of   lessor which   amounted   to   breach   of   condition   of   the   lease.   The general principles relating to forfeiture as had been laid down was   taken   note   and   in   that   circumstance   by   strictly construing  the   right   of   forfeiture   against   the   lessor   in   the absence of express stipulation had arrived at the conclusion that the transfer made of the entire extent, though consent had been obtained to transfer a part would not amount to breach.   Certain   other   decisions   relied   on   by   the   learned senior counsel are also to the same effect and we see no need to refer to each of them. But, what is necessary to be taken note is that the general principles of equity as laid down in <cite>Grove   vs.   Portal  (supra)</cite>   has   been   the   basis   for   the conclusion reached in almost all the noted cases.  30. In   contradistinction   to   the   facts   which   arose   for consideration in the cited cases where essentially the dispute was inter­se between the private owners of the property and their   lessees   and   the   nature   of   transaction,   in   the   instant case,   the   leased   land   is   the   property   which   belong   to   the government and the leasehold right has been auctioned so as to earn revenue for the state, which is to the interest of its citizens and one citizen or a group is permitted to exploit the land   to   the   exclusion   of   all   others.   Additionally,   such government property is located in an area notified as reserve forest.   In  such  circumstance,  when  the   lessee  is   given  the benefit   of   such   property   and   the   breach   of   the   condition imposed   is   alleged,   the   strict   construction   of   the   forfeiture clause against the lessor in all circumstances would not arise as   otherwise   it   would   render   the   clause   in   the   lease   deed otiose. The principle contained in Section 111(g) of the T.P. Act though noticed, the parties are governed by the terms in the   contract   and   as   such   the   lessee   cannot   claim   benefit under   the   said   provision.   Further,   as   already   noted   the consideration   under   Section   111(g)   is   based   on   equitable principles   which   will   have   to   be   applied   depending   on   the facts   and   circumstances   obtained   in   each   case.   While applying the equitable principles, the maxim  he who seeks equity must do equity  cannot be lost sight of.   It is said, a court will not assist a lessee in extricating himself or herself from the circumstances that he or she has created, in the name   of   equitable   consideration.   In   the   instant   facts   as already noted when public largesse   is bestowed on certain terms and conditions, a term of the lease deed is to be strictly adhered to and when Clause 14 provides that the lessee shall not be entitled to sublet or assign his interest in the lease except with the previous permission in writing of the lessor, it does not matter as to whether the breach committed is by assigning a portion of the leased land or the whole when such interest of the lessee has been transferred without previous permission of the lessor. Further, in all the cases referred to by the learned senior counsel, the breach alleged was either of creating mortgage or subletting the property. In the instant case, despite being a lessee the respondent has executed an absolute sale deed in respect of the leased land which belongs to the government and such breach cannot be condoned.  CIVIL   APPEAL   NO.5120/2021   @   SLP(C)   No.9661/2017 AND   CIVIL   APPEAL   NO.5119/2021   @   SLP(C) No.18760/2016 31. The Appellant­State of Kerala in both these appeals are assailing   the   interim   orders   passed   by   the   learned   single judge   in   W.P.   No.35832/2015.   The   said   order   had   been confirmed by the learned Division Bench through the orders dated   11.01.2016   and   25.01.2017.   Considering   that   the learned   single   judge   had   made   an   interim   arrangement protecting   the   interest   of   both   the   parties     which   will   be subject to ultimate result in the writ petition and also taking note   that   this   Court   while   directing   notice   in   SLP No.9661/2017,   on   21.04.2017   had   directed   the   parties   to maintain status quo as it existed on that day and the said order has continued till this day, it would be appropriate that the   said   position   shall   continue   and   the   High   Court   shall dispose   of   the   writ   proceedings   in   accordance   with   law,   if already not considered and disposed of. We make it clear that we have refrained from interfering with the impugned orders since they are interim in nature. We have also not adverted to the   merits   of   the   rival   contentions   arising   in   these proceedings. As such the High Court shall consider the case on its own merits.  32.   For all the aforestated reasons, the following order; (i) The   order   dated   10.07.2015   passed   by   the learned   Division Bench in W.A.No.369/2011 and W.A.No.375/2011 is set aside. (ii)  The order dated 17.01.2011 passed by the learned Single Judge in W.P.No.1207/2005 is restored. (iii)   The   appeals   arising   out   of   SLP(C)   Nos.879­ 880/2016 are allowed in part with no order as to costs. (iv)    The appeals arising out of SLP (C) No.9661/2017 and SLP(C) No.18760/2016 are disposed of. (v)     Pending application, if any, shall stand disposed of. 

The present appeals arise out of the common judgment and 2. order dated 16th January, 2020 of the Karnataka High Court which 1 dismissed several Writ Petitions. The course of the litigation highlights the malaise of constant abuse of procedural provisions which defeats justice, i.e. frivolous attempts by unsuccessful litigants to putting up spurious objections and setting up third parties, to object, delay and obstruct the execution of a decree. 3. The third respondent (hereafter referred to as ‘Narayanamma’) had purchased a property measuring 1 Acre (Survey No. 15/2) of Deevatige Ramanahalli, Mysore Road, Bengaluru (hereafter referred to as ‘suit property’) under the sale deed dated 17.03.1960. The suit land was converted and got merged in the municipal limits of Bengaluru and was assigned with Municipal Corporation No. 327 and 328, Mysore Road, Bengaluru. Narayanamma sold 1908 square yard of the suit property in Municipal Corporation (Survey No. 327) to 2nd and 3rd respondents (hereafter referred to ‘Jitendra’ and `Urmila’) under a sale deed dated 13.05.1986. This was demarcated with the sketch annexed to the sale deed. The adjacent portion of property, Survey No. 327 was sold to Shri Moolendra Kumar Gandhi and Smt. Baby Gandhi by another sale deed dated 13.05.1986. This property was also demarcated in the sketch and 2 clearly shows its dimensions and boundaries annexed to the sale deed. Therefore, the first two respondents, Shri Moolendra Kumar Gandhi and Smt. Baby Gandhi became absolute owners of the suit property with the totally admeasuring of 3871 square yards. Thus, Narayanamma had sold about 34,839 square feet of the property out of 1 Acre land (43,860 square feet) owned by her. Subsequently, after the sale of the major portion of the said property to the first two respondents and their brother, Narayanamma who is the mother of A. Ramachandra Reddy the fourth respondent (hereafter called “the vendors”) filed a suit1 for declaration that the two sale deeds in favour of the first two respondents (also called “purchasers” or “decree-holders”) as well as against Shri Moolendra Kumar Gandhi etc. were void. The vendors and Shri Anjan Reddy (deceased respondent no. 8) on 25.03.1991 executed a registered partition deed. This document did not advert to the sale deed executed in favour of the purchasers and Shri Moolendar Kumar Gandhi and Smt. Baby Kumari Gandhi. The purchasers were restrained by an injunction 1 O.S. No. 986/1987 3 from entering the property which Narayanamma claimed was hers. During the pendency of the suit for declaration, the first 4. purchasers filed two suits2 against the vendors for possession. During the pendency of these suits on 11.02.2000 by two separate sale deeds Shri Dhanji Bhai Patel and Shri Govind Dhanji Patel purchased 7489 square feet and 7650 square feet respectively, out of the residue of the property owned by Narayanamma. While so, during the pendency of the suits instituted by the purchasers, the vendors again sold the suit property i.e. the land to the present appellant (Rahul Shah) and three others (Respondents no. 5-7) by four separate sale deeds.3In the possession suits the vendors filed counter claims (dated 18.04.1998). During the pendency of proceedings the purchasers sought for transfer and mutation of property in their names which were declined by the Municipal Corporation; this led to their approaching the High Court in Writ Petition No. 19205/1992 which 2 O.S. Nos. 9077/ 1996 and 9078/1996 3 Dated 09.11.2001, 12.12.2001, 05.12.2002 and 20.10.2004 4 was disposed of with a direction4 that after adjudication of the injunction suit (filed by the vendors) the khata be transferred. The proceedings in the injunction suit filed by the vendors 5. and the other two suits filed by the purchasers were clubbed together. The City Civil Judge, Bangalore by a common judgment dated 21.12.2006 allowed and decreed the suits for possession preferred by the purchasers and dismissed the vendor’s suit for injunction. The decree holders preferred execution proceedings.5 They filed applications under Order XXI Rule 97 of the Code of Civil Procedure (CPC) since the judgment debtors/vendors had sold the property to the appellant and respondents no. 4 to 7. The appellant i.e. a subsequent purchaser filed objections. 6. During the pendency of the proceedings the front portion of the suit property bearing Municipal Corporation No. 327, Mysore road, Bangalore became the subject matter of the acquisition for the Bangalore Metro Project. The decree holders (the first two respondents) preferred objections to the proposed acquisition and further claimed the possession. In the meanwhile, aggrieved by the dismissal of the suit and decreeing the suit for possession, 4 Dated 05.11.1998 5 Execution Case Nos. 458-459/2007 5 Narayanamma filed first appeals in the High Court6. In these proceedings it was brought to the notice of the High Court that the suit properties had been sold to the appellant and respondents no. 4 to 7. By an order7 the High Court directed the vendors to furnish particulars with respect to the sale, names of the purchaser and area sold etc. By common judgment dated 22.10.2009 the High Court dismissed all the appeals pending before it. The Special Leave Petition preferred by the vendors8 was also dismissed by this Court on 23.07.2010. 7. Apparently, during the pendency of execution proceedings before the trial Court the vendors again sold the properties in favour of Shri P. Prem Chand, Shir Parasmal, Shri Kethan S. Shah & Ors. and Shri Gopilal Ladha & Shri Vinay Maheshwari by separate sale deeds9. This was brought to the notice of the High Court which had dismissed the appeal preferred by the vendors. 8. During the pendency of the proceedings before the High Court Narayanamma, the appellant and respondents no. 4 to 7 filed indemnity bonds claiming that there was no dispute with 6 R.F.A. No. 661-663/ 2007 7 Dated 10.04.208 8 S.L.P. (C) Nos. 16349-13651/2010 9 Dated 09.11.2001, 12.12.2001, 05.12.2002 and 20.10.2004 6 respect to the suit property and claimed the compensation in respect of portions that were acquired. These were brought to the notice of the High Court which passed an order in W.P. No. 9337/2008. The court considered all the materials and held that the compensation could not have been dispersed to the vendors, the appellant and Respondents no. 4 to 7. The High Court issued directions to them to deposit the amounts. An appeal was preferred by the appellant and the said respondents, against that order, which was rejected by the Division Bench.10 Consequently, an enquiry was held and order was passed by the Land Acquisition Officer on 01.08.2011 directing the appellant, the vendor and others to redeposit the amounts. By an order passed in another Writ Petition No. 2099/201111 the High Court held that the decree holder/purchasers were entitled to transfer of khata of property in their names and directed to hold an inquiry against the Revenue Officer. Since the orders of the High Court, with respect to the deposits of amounts, were not complied with, contempt proceedings were taken. 10 Dated 28.10.2009 11 Dated 17.07.2013 7 9. The High Court in another order dated 19.04.2013 directed Narayanamma and respondents no. 4 to 7 to deposit the amounts. That order in contempt proceedings (C.C.C. No. 280/2011) was challenged before this Court in a special leave petition12 which was dismissed on 05.11.2014. Thereafter, apparently in compliance with the High Court’s direction for transfer of khata the municipal and revenue records reflect the names of the decree-holder/purchasers. 10. The execution proceedings initiated by the decree holders resulted in the court requiring parties to lead evidence, in view of the obstruction by the appellant and respondents no. 4 to 7, by its order dated 23.04.2010. When obstruction proceedings were pending under Order XXI Rule 97, the judgment debtor i.e. the vendors initiated criminal proceedings in 2016 against the decree holders; these were stayed by the High Court on 20.06.2016 and later quashed on 16.03.2017. The judgment debtors had alleged The High Court directed forgery of certain documents. appointment of Court Commissioner to identify and measure the property. At the time of disposal of the criminal proceedings High 12 SLP (C) No. 18031/2013 8 Court directed that the Commissioner’s report along with the objections of the Judgment debtors ought to be forwarded to the Executing Court. 11. In the meanwhile, by an order the Executing Court had appointed the Taluka Surveyor of BBMP as the Court Commissioner and directed him to visit the spot and survey and fix the boundaries of decretal property. Recall of these orders was sought by the judgment debtors; they also sought for reference to forensic examination by a Handwriting Expert of the sale documents. These two review applications were dismissed; and on 13.06.2017 the Executing Court declined the application for forensic examination of documents and also rejected the obstructers’ resistance to execution. 12. All these orders led to initiation of five writ petitions on behalf of the appellant, and the vendors etc. Three First appeals13 were preferred by obstructers challenging the decision of the Executing Court dated 15.02.2017. By impugned common order all these Writ Petitions and appeals were dismissed. 13 R.F.A. Nos. 441, 468 and 469/2017 9 13. It is argued by Mr. Shailesh Madiyal on behalf of the appellant (Rahul Shah) that the impugned order has the effect of diluting the order of the Executing Court dated 23.04.2010 with respect to survey of the entire property. It was pointed out by the counsel for the appellant that there were disputes with respect to boundaries and identity of the properties as between parties. Referring to the order, it was submitted that the Court had noticed that the High Court in earlier Writ Petitions had directed the Special Land Acquisition Officer to hold an enquiry and if necessary refer the matter to Civil Court under Section 30 of the Land Acquisition Act. In view of all these disputes, questions especially related to the boundaries and the imprecise nature of the extent and location of the disputed properties, the impugned order should be interfered with and the reliefs sought by the appellant be granted. Learned Counsel submitted that subsequently by order dated 31.10.2014 the Executing Court erroneously held that Sketch Exhibit P-26 was drawn by Revenue Authorities whereas in fact it was introduced by handwritten sketch given by the decree holders. 10 14. Learned counsel submitted that decree holder’s efforts in all the proceedings were to confuse the identity of the property and therefore had sought clubbing of both execution cases; this request was rejected by the Executing Court after concluding that the property sought to be executed in two cases were different and further that rights claimed too were distinct. 15. Learned counsel for the appellant in the second set of petitions, i.e. SLP (C) No. 11859-11860 of 2020 and SLP (C) No. 11792-11793 of 2020, on the other hand urged that the High Court as well as the Executing Court fell into error in holding that what was sought by the obstructer (i.e. the appellant Gopilal Ladha) was far in excess of what was left after decree holders had purchased and therefore the conveyances had overlapped. 16. Mr. Arunava Mukherjee appearing for the second set of appellants also reiterated the submissions of Mr. Shailesh Madiyal that the decree holders had intentionally confused the identity of the property. He highlighted that the High Court acted in error in rejecting the appellants’ request for subjecting documents to forensic examination by handwriting experts. It was submitted that this aspect was completely overlooked because the 11 appellants’ had raised serious doubts with respect to the genuineness and authenticity of the signatures of the documents. 17. The respondents urged that this Court should not interfere with the findings of the High Court. Learned counsel reiterated that numerous proceedings were taken out and that the judgment debtors had sold the very same property three times over – at least two times after the decree holders purchased their portions of the property and during the pendency of the suits filed by them. The judgment debtors had sought a declaration that the sale deeds executed in favour of the decree holders were not genuine and lost. Thereafter, the judgment debtor and some of the obstructers succeeded in collecting compensation in respect of the portion of the property that had been acquired. Ultimately, those amounts had to be disbursed by the Court orders. The judgment debtors/ vendor even sought forensic examination and initiated the criminal proceedings that were quashed by the High Court. The High Court took note of all these circumstances and passed a just order, requiring the appointment of a Court Commissioner to identify and measure the properties. While doing so the Executing Court has been asked to take into 12 consideration all the materials on record including the reports submitted by the previous Court Commissioner Mr. Venkatesh Dalwai. Discussion and conclusions: 18. It is quite evident from the above discussion that the vendor and her son (judgment debtors) after executing the sale deed in respect of a major portion of the property, questioned the transaction by a suit for declaration. The decree holders also filed a suit for possession. During the pendency of these proceedings, two sets of sale deeds were executed. The vendors’ suit was dismissed – the decree of dismissal was upheld at the stage of the High Court too. On the other hand, the purchasers’ suit was decreed and became the subject matter of the appeal. The High Court dismissed the first appeal; this Court dismissed the Special Leave Petition. This became the background for the next stage of the proceedings, i.e. execution. Execution proceedings are now being subsisting for over 14 years. In the meanwhile, numerous applications including criminal proceedings questioning the very same documents that was the subject matter of the suit were 13 initiated. In between the portion of the property that had been acquired became the subject matter of land acquisition proceedings and disbursement of the compensation. That became the subject matter of writ and contempt proceedings. Various orders of the Executing Court passed from time to time, became the subject matter of writ petitions and appeals - six of them, in the High Court. All these were dealt with together and disposed of by the common impugned order. 19. A perusal of the common impugned order shows that High Court has painstakingly catalogued all proceedings chronologically and their outcomes. The final directions in the impugned order is as follows: (a) the other challenge by the JDrs and the Obstructors having been partly favoured, the impugned orders of the Executing Court directing Delivery Warrant, are set at naught, and the matter is remitted back for consideration afresh by appointing an expert person/official as the Court Commissioner for accomplishing the identification & measurement of the decreetal properties with the participation of all the stake-holders, in that exercise subject to all they bearing the costs & fees thereof, equally; it is open to the Executing Court to take into (b) consideration the entire evidentiary material on record 14 hitherto including the Report already submitted by the Court Commissioner Shri Venkatesh Dalwai, the amount already in deposit and the one to be (c) deposited by the Obstructors in terms of orders of Co- ordinate Benches of this Court mentioned in paragraph 8 supra shall be released to the parties concerned, that emerge victorious in the Execution Petitions; the JDrs shall jointly pay to the DHrs collectively (d) an exemplary cost of Rs. 5,00,000/- (Rupees five lakh) only in each of the Execution Petitions within a period of eight weeks, regardless of the outcome of the said petitions; and, if, the same is not accordingly paid, they run the of risk being excluded the Execution Proceedings, in the discretion of the learned judge of the Court below; and, (e) the entire exercise including the disposal of the Execution Petitions shall be accomplished within an outer limit of six months, and the compliance of such accomplishment shall be reported to the Registrar General of this Court. from participation in No costs qua obstructors. Sd/- JUDGE 20. The contentions of the Special Leave Petition mainly centre around one or the other previous orders of the Executing Court with regard identification of the property and boundary etc and the subjecting documents to forensic examination. As is evident 15 from the reading of the final order, the High Court has adopted a fair approach requiring the Executing Court to appoint a Court Commissioner to verify the identity of the suit properties and also consider the materials brought on record including the reports of the previous local commission. In the light of this, the arguments of the present appellants are unmerited and without any force. The Court also finds that the complaint that documents ought to be subjected to forensic examination, is again insubstantial. The criminal proceedings initiated during the pendency of the execution proceedings – in 2016 culminated in the quashing of those proceedings. The argument that the documents are not genuine or that they contain something suspicious ex-facie appears only to be another attempt to stall execution and seek undue advantage. As a result, the High Court correctly declined to order forensic examination. This Court is of the opinion that having regard to the totality of circumstances the direction to pay costs quantified at Rs. 5 lakh (to be complied by the judgment debtor) was reasonable, given the several attempts by the decree holder to ensure that the fruits of the judgment secured by them 16 having been thwarted repeatedly. As a result, the direction to pay costs was just and proper. 21. The High Court has directed the Executing Court to complete the process within six months. That direction is affirmed. The parties are hereby directed to cooperate with the Executing Court; in case that court finds any obstruction or non-cooperation it shall proceed to use its powers, including the power to set down and proceed ex-parte any party or impose suitably heavy costs. Therefore, in light of the above observations these appeals are liable to be dismissed. 22. These appeals portray the troubles of the decree holder in not being able to enjoy the fruits of litigation on account of inordinate delay caused during the process of execution of decree. As on 31.12.2018, there were 11,80,275 execution petitions pending in the subordinate courts. As this Court was of the considered view that some remedial measures have to be taken to reduce the delay in disposal of execution petitions, we proposed certain suggestions which have been furnished to the learned counsels of parties for response. We heard Mr. Shailesh 17 Madiyal, learned counsel for the petitioner and Mr. Paras Jain, learned counsel for the respondent. 23. This court has repeatedly observed that remedies provided for preventing injustice are actually being misused to cause injustice, by preventing a timely implementation of orders and execution of decrees. This was discussed even in the year 1872 by the Privy Counsel in <cite>The General Manager of the Raja Durbhunga v. Maharaja Coomar Ramaput Sing14</cite> which observed that the actual difficulties of a litigant in India begin when he has obtained a decree. This Court made a similar observation in <cite>Shub Karan Bubna @ Shub Karan Prasad Bubna v Sita Saran Bubna15</cite>, wherein it recommended that the Law Commission and the Parliament should bestow their attention to provisions that enable frustrating successful execution. The Court opined that the Law Commission or the Parliament must give effect to appropriate recommendations to ensure such amendments in the Code of Civil Procedure, 1908, governing the adjudication of a suit, so as to ensure that the process of adjudication of a suit be continuous from the stage of initiation to 14 (1871-72) 14 Moore’s I.A. 605 15 (2009) 9 SCC 689 18 the stage of securing relief after execution proceedings. The execution proceedings which are supposed to be handmaid of justice and sub-serve the cause of justice are, in effect, becoming tools which are being easily misused to obstruct justice. 24. In respect of execution of a decree, Section 47 of CPC contemplates adjudication of limited nature of issues relating to execution i.e., discharge or satisfaction of the decree and is aligned with the consequential provisions of Order XXI. Section 47 is intended to prevent multiplicity of suits. It simply lays down the procedure and the form whereby the court reaches a decision. For the applicability of the section, two essential requisites have to be kept in mind. Firstly, the question must be the one arising between the parties and secondly, the dispute relates to the execution, discharge or satisfaction of the decree. Thus, the objective of Section 47 is to prevent unwanted litigation and dispose of all objections as expeditiously as possible. 25. These provisions contemplate that for execution of decrees, Executing Court must not go beyond the decree. However, there is steady rise of proceedings akin to a re-trial at the time of execution causing failure of realisation of fruits of decree and relief which the party seeks from the courts despite there being a 19 decree in their favour. Experience has shown that various objections are filed before the Executing Court and the decree holder is deprived of the fruits of the litigation and the judgment debtor, in abuse of process of law, is allowed to benefit from the subject matter which he is otherwise not entitled to. 26. The general practice prevailing in the subordinate courts is that invariably in all execution applications, the Courts first issue show cause notice asking the judgment debtor as to why the decree should not be executed as is given under Order XXI Rule 22 for certain class of cases. However, this is often misconstrued as the beginning of a new trial. For example, the judgement debtor sometimes misuses the provisions of Order XXI Rule 2 and Order XXI Rule 11 to set up an oral plea, which invariably leaves no option with the Court but to record oral evidence which may be frivolous. This drags the execution proceedings indefinitely. 27. This is anti-thesis to the scheme of Civil Procedure Code, which stipulates that in civil suit, all questions and issues that may arise, must be decided in one and the same trial. Order I and Order II which relate to Parties to Suits and Frame of Suits with the object of avoiding multiplicity of proceedings, provides for joinder 20 of parties and joinder of cause of action so that common questions of law and facts could be decided at one go. 28. Order I Rule 10(2) empowers the Court to add any party who ought to have been joined, whether as a plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court to effectually and completely adjudicate upon and settle all questions involved in the suit. Further, Order XXII Rule 10 provides that in cases of assignment, creation or devolution of any interest during the pendency of the suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come to be devolved. 29. While CPC under Rules 30 to 36 of Order XXI provides for execution of various decrees, the modes of execution are common for all. Section 51 of CPC lists the methods of execution as by delivery of property; by attachment and sale; by arrest and detention in civil prison; by appointing a receiver or in any other manner as the nature of relief granted may require. Moreover, Order XL Rule 1 contemplates the appointment of the Receiver by the Court. In appropriate cases, the Receiver may be given possession, custody and/or management of the property immediately after the decree is passed. Such expression will 21 assist in protection and preservation of the property. This procedure within the framework of CPC can provide assistance to the Executing Court in delivery of the property in accordance with the decree. 30. As to the decree for the delivery of any immovable property, Order XXI Rule 35 provides that possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property. 31. As the trial continues between specific parties before the Courts and is based on available pleadings, sometimes vague description of properties raises genuine or frivolous third-party issues before delivery of possession during the execution. A person who is not party to the suit, at times claims separate rights or interests giving rise to the requirement of determination of new issues. 32. While there may be genuine claims over the subject matter property, the Code also recognises that there might be frivolous or instigated claims to deprive the decree holder from availing the benefits of the decree. Sub-rule (2) of Rule 98 of Order XXI 22 contemplates such situations and provides for penal consequences for resistance or obstruction occasioned without any just cause by the judgment debtor or by some other person at his instigation or on his behalf, or by the transferee, where such transfer was made during the pendency of the suit or execution proceedings. However, such acts of abuse of process of law are seldom brought to justice by sending the judgment debtor, or any other person acting on his behalf, to the civil prison. In relation to execution of a decree of possession of 33. immovable property, it would be worthwhile to mention the twin objections which could be read. Whereas under Order XXI Rule 97, a decree holder can approach the court pointing out about the obstruction and require the court to pass an order to deal with the obstructionist for executing a decree for delivering the possession of the property, the obstructionist can also similarly raise objections by raising new issues which take considerable time for determination. 34. However, under Order XXI Rule 99 it is a slightly better position, wherein a person, other than the judgment debtor, when is dispossessed of immoveable property by the decree holder for 23 possession of such property, files an application with objections. Such objections also lead to re-trial, but as the objector is already dispossessed, the execution of the decree is more probable and expeditious. In Order XXI Rule 97 the obstructionist comes up with various objections that ideally should have been raised at the time of adjudication of suit. Such obstructions for execution could be avoided if a Court Commissioner is appointed at the proper time. 35. Having considered the abovementioned legal complexities, the large pendency of execution proceedings and the large number of instances of abuse of process of execution, we are of the opinion that to avoid controversies and multiple issues of a very vexed question emanating from the rights claimed by third parties, the Court must play an active role in deciding all such related issues to the subject matter during adjudication of the suit itself and ensure that a clear, unambiguous, and executable decree is passed in any suit. 36. Some of the measures in that regard would include that before settlement of issues, the Court must, in cases, involving delivery of or any rights relating to the property, exercise power under Order XI Rule 14 by ordering production of documents upon 24 oath, relating to declaration regarding existence of rights of any third party, interest in the suit property either created by them or in their knowledge. It will assist the court in deciding impleadment of third parties at an early stage of the suit so that any future controversy regarding non-joinder of necessary party may be avoided. It shall ultimately facilitate an early disposal of a suit involving any immovable property. 37. It also becomes necessary for the Trial Court to determine what is the status of the property and when the possession is not disputed, who and in what part of the suit property is in possession other than the defendant. Thus, the Court may also take recourse to the following actions: a) Issue commission under Order XXVI Rule 9 of CPC. A determination through commission, upon the institution of a suit shall provide requisite assistance to the court to assess and evaluate to take necessary steps such as joining all affected parties as necessary parties to the suit. Before settlement of issues, the Court may appoint a Commissioner for the purpose of carrying out local investigation recording exact description and demarcation of the property including the nature and occupation 25 of the property. In addition to this, the Court may also appoint a Receiver under Order XL Rule 1 to secure the status of the property during the pendency of the suit or while passing a decree. b) Issue public notice specifying the suit property and inviting claims, if any, that any person who is in possession of the suit property or claims possession of the suit property or has any right, title or interest in the said property specifically stating that if the objections are not raised at this stage, no party shall be allowed to raise any objection in respect of any claim he/she may have subsequently. c) Affix such notice on the said property. d) Issue such notice specifying suit number etc. and the Court in which it is pending including details of the suit property and have the same published on the official website of the Court. 38. Based on the report of the Commissioner or an application made in that regard, the Court may proceed to add necessary or proper parties under Order I Rule 10. The Court may permit 26 objectors or claimants upon joining as a party in exercise of power under Order I Rule 10, make a joinder order under Order II Rule 3, permitting such parties to file a written statement along with documents and lists of witnesses and proceed with the suit. 39. If the above suggested recourse is taken and subsequently if an objection is received in respect of “suit property” under Order XXI Rule 97 or Rule 99 of CPC at the stage of execution of the decree, the Executing Court shall deal with it after taking into account the fact that no such objection or claim was received during the pendency of the suit, especially in view of the public notice issued during trial. Such claims under Order XXI Rule 97 or Rule 99 must be dealt strictly and be considered/entertained rarely. In <cite>Ghan Shyam Das Gupta v. Anant Kumar Sinha16</cite>, this 40. Court had observed that the provisions of the Code as regards execution are of superior judicial quality than what is generally available under the other statutes and the Judge, being entrusted exclusively with administration of justice, is expected to do better. With pragmatic approach and judicial interpretations, the Court must not allow the judgment debtor or any person instigated or 16 AIR 1991 SC 2251 27 raising frivolous claim to delay the execution of the decree. For example, in suits relating to money claim, the Court, may on the application of the plaintiff or on its own motion using the inherent powers under Section 151, under the circumstances, direct the defendant to provide security before further progress of the suit. The consequences of non-compliance of any of these directions may be found in Order XVII Rule 3. 41. Having regard to the above background, wherein there is urgent need to reduce delays in the execution proceedings we deem it appropriate to issue few directions to do complete justice. These directions are in exercise of our jurisdiction under Article 142 read with Article 141 and Article 144 of the Constitution of India in larger public interest to subserve the process of justice so as to bring to an end the unnecessary ordeal of litigation faced by parties awaiting fruits of decree and in larger perspective affecting the faith of the litigants in the process of law. 42. All Courts dealing with suits and execution proceedings shall mandatorily follow the below-mentioned directions: 28 In suits relating to delivery of possession, the court 1. must examine the parties to the suit under Order X in relation to third party interest and further exercise the power under 2. Order XI Rule 14 asking parties to disclose and produce documents, upon oath, which are in possession of the parties including declaration pertaining to third party interest in such properties. In appropriate cases, where the possession is not in 3. dispute and not a question of fact for adjudication before the Court, the Court may appoint Commissioner to assess the accurate description and status of the property. After examination of parties under Order X or 4. production of documents under Order XI or receipt of commission report, the Court must add all necessary or proper parties to the suit, so as to avoid multiplicity of proceedings and also make such joinder of cause of action in the same suit. 29 Under Order XL Rule 1 of CPC, a Court Receiver can be 5. appointed to monitor the status of the property in question as custodia legis for proper adjudication of the matter. The Court must, before passing the decree, 6. pertaining to delivery of possession of a property ensure that the 7. decree is unambiguous so as to not only contain clear description of the property but also having regard to the status of the property. In a money suit, the Court must invariably resort to 8. Order XXI Rule 11, ensuring immediate execution of decree for payment of money on oral application. In a suit for payment of money, before settlement of 9. issues, the defendant may be required to disclose his assets on oath, to the extent that he is being made liable in a suit. The Court may further, at any stage, in appropriate cases during the pendency of suit, using powers under Section 151 CPC, demand security to ensure satisfaction of any decree. 30 10. The Court exercising jurisdiction under Section 47 or under Order XXI of CPC, must not issue notice on an application of third-party claiming rights in a mechanical manner. Further, the Court should refrain from entertaining any such application(s) that has already been considered by the Court while adjudicating the suit or which raises any such issue which otherwise could have been raised and determined during adjudication of suit if due diligence was exercised by the applicant. 11. The Court should allow taking of evidence during the execution proceedings only in exceptional and rare cases where the question of fact could not be decided by resorting to any other expeditious method like appointment of Commissioner or calling for electronic materials including photographs or video with affidavits. 12. The Court must in appropriate cases where it finds the objection or resistance or claim to be frivolous or mala fide, resort to Sub-rule (2) of Rule 98 of Order XXI as well as grant compensatory costs in accordance with Section 35A. 31 13. Under section 60 of CPC the term “…in name of the judgment- debtor or by another person in trust for him or on his behalf” should be read liberally to incorporate any other person from whom he may have the ability to derive share, profit or property. 14. The Executing Court must dispose of the Execution Proceedings within six months from the date of filing, which may be extended only by recording reasons in writing for such delay. 15. The Executing Court may on satisfaction of the fact that it is not possible to execute the decree without police assistance, direct the concerned Police Station to provide police assistance to such officials who are working towards execution of the decree. Further, in case an offence against the public servant while discharging his duties is brought to the knowledge of the Court, the same must be dealt stringently in accordance with law. 16. The Judicial Academies must prepare manuals and ensure continuous training through appropriate mediums to 32 the Court personnel/staff executing the warrants, carrying out attachment and sale and any other official duties for executing orders issued by the Executing Courts. 43. We further direct all the High Courts to reconsider and update all the Rules relating to Execution of Decrees, made under exercise of its powers under Article 227 of the Constitution of India and Section 122 of CPC, within one year of the date of this Order. The High Courts must ensure that the Rules are in consonance with CPC and the above directions, with an endeavour to expedite the process of execution with the use of Information Technology tools. Until such time these Rules are brought into existence, the above directions shall remain enforceable. 44. The appeals stand dismissed.

The Judgment of the Court was delivered by Sikri, C. J.-This appeal by special leave is against the order of the Central Registrar of Cooperative Societies New Delhi dismissing the appeal filed by Panchshila Industrial Cooperative Society (Multi Unit) appellant before us against the award passed by the Arbitrator (Deputy Registrar of Cooperative Societies Rohtak) dated October 7, 1969, in respect of the dispute between the Gurgaon Central Cooperative Bank Ltd., Gurgaon respondent before us, and the appellant. The Central Registrar held that he was not the appropriate appellate authority against the award in question. The only question which arises before us is whether the Central Registrar was the appropriate authority on the facts of this case. The relevant facts are these. The respondent Bank approached the Registrar of Cooperative Societies Haryana for resolving a dispute between the Bank and one of its members appellant before us. The Registrar by his order dated February 17, 1968, in exercise of the powers vested in him under S. 56 of the Punjab Co-operative Societies Act, 1961, referred the dispute to the Deputy Registrar Cooperative Societies Rohtak for decision. The arbitrator gave the award on October 7, 1969, directing that the appellant do pay to the respondent in all Rs. 16,05,658 - 20 together with interest at the rate of six and a half per cent per annum until the realisation of the principal amount viz. Rs. 11,52,535 00. The appellant as mentioned above filed an appeal against this award before the Central Registrar. The respondent Bank is a co-operative society governed by the provisions of the Punjab Co-operative Societies Act 1961. Section 55(1) of this Act inter alia provides that if any dispute touching the constitution management or the business of a co- operative society arises between a member 46 and the society such dispute shall be referred to the Re- gistrar for decision and no Court shall have jurisdiction to entertain any suit or other proceeding in respect of such dispute. Section 55(2) provides that for the purposes of sub-section (1) a claim by the society for any debt or de- mand due to it from a member or the nominee heirs or legal representatives of a deceased member whether such debt or demand be admitted or not, shall be deemed to be a dispute touching the constitution, management or the business of the co-operative society. Sub-section (3) of S. 55 provides that "if any question arises whether a dispute referred to the Registrar under this section is or is not a dispute touching the constitution management or the business of a cooperative society, the decision thereon of the Registrar shall be final and shall not be called in question in any court." There is no doubt that the dispute between the respondent Bank and the appellant fell within S. 55 and was properly referred to arbitration under that section. It is however, contended that the appellant was registered in December 1955 under the Punjab Cooperative Societies Act, 1955, and by virtue of the States Reorganisation Act, 1956, and S. 5A of the Multi-Unit Co-operative Societies Act, 1942, the appellant has ceased to be governed by the provisions of the Punjab Co-operative Societies Act because it has become a multi-unit co-operative society. There is no doubt that by virtue of the States Reorganisation Act, 1956, and S. 5A of the Multi-Unit Co-operative Societies, Act, 1942, the appellant has become a multi-unit co-operative society and the Multi-Unit Co-operative Societies Act applies to it. But that Act is for the incorporation, regulation and winding up of co-operative societies with objects not confined to one State, and it has no impact on S. 55 of the Punjab Co-operative Societies Act, 1961, inasmuch as the appellant remains a member of the co-operative society, namely, the respondent Bank. There is nothing in the provisions of the Multi-Unit Co-operative Societies Act to indicate that a multi-unit co-operative society cannot be a member of a co-operative society governed by the Punjab Act of 1961. If the appellant continues to be a member, then the terms of S. 55 apply and a dispute can be referred to arbitration under that section. An appeal against the at award lies under S. 68 of the Punjab Act of 47 1961 to the Government of the decision or order was made by the Registrar, and to the Registrar if the decision or order was made by any other person. It is quite clear therefore, that the Central Registrar had no jurisdiction to hear the appeal. The learned counsel next contends that the Central Registrar should not have dismissed the appeal but returned the memorandum of appeal for presentation to the proper authority. There is no statutory provision enabling the Central Registrar to do so. At any rate, if an appeal is filed before the appropriate authority under the Punjab Co- operative Societies Act, 1961, that authority will no doubt take into consideration the provisions of S. 14 of the Limitation Act, 1963, read with S. 29(2) and decide whether the appeal should be entertained or not. In the result the appeal fails and is dismissed with costs. K.B.N. Appeal dismissed. 48

The challenge in the present appeal is to an order passed by the National Consumer Disputes Redressal Commission1 on 02.11.2015 whereby the original Opposite Party No. 3 (Respondent No. 1 herein) was absolved of the damages of Rs. 2,00,000/- imposed by State Consumer Disputes Redressal Commission2 vide order dated 12.11.2014. 2. Sanjay Kumar aged about 15 years, son of the Appellant complained of abdominal pain, fever and haemorrhage in both eyes. Initially, the Appellant had taken his son to a physician Dr. Arun Tiwari on 08.11.1995 who advised some tests and medicines. He was advised to consult with the specialist as well. After 1 NCDRC 2 SCDRC 1 examining the blood report, Dr. Arun Tiwari referred the patient to the Kurji Holy Family Hospital-original Opposite Party No. 1 on 10.11.1995. He was taken to the Hospital at about 8.00 PM. The recorded history of the patient is as under: “A 15 years old male patient is admitted in 3A-7 with the complaints of fever, pain abdomen and hemorrhage from both eyes since 5 days.” 3. The patient was operated upon on 11.11.1995 when the platelets count was 35000 per cubic millimeter (cu.mm) at about 11.15 AM. Before the surgery, the patient was transfused with two units of blood and after the surgery another two units of blood were transfused. Since the patient was bleeding and in spite of packing of leakages, the relatives of the patient took discharge from the Kurji Holy Family Hospital at about 2.00 PM on 13.11.1995. On the same date, the patient was admitted to Patna Medical College and Hospital (PMCH) where the patient died on 16.11.1995. 4. In consumer complaint under the Consumer Protection Act, 19863, the Appellant produced an affidavit of Dr. Hare Ram Singh, then posted in Jharkhand State Assembly at Russian Hostel, Dhurwa, P.S. Jaganathpur, District Ranchi. Dr. Hare Ram Singh opined that Bleeding Time (BT) was 3’ 00” against normal value of 2-4 seconds and Clotting Time (CT) was 5’ 00” against normal value of 3-6 seconds. The affidavit further states that there was a second test which shows that the platelets decreased excessively and there were very few plasma cells present. There was another test conducted before surgery, showing platelets count as 35000 per cu. mm. Dr. Hare Ram Singh was of the opinion that to operate the patient with excessive low platelets count was the greatest blunder and clear case of extreme negligence of doctors. 3 1986 Act 2 5. The surgery was performed on 11.11.1995 at about 11.15 AM. The post- operative note of the operating team reads as under: “Name(s) of Operation(s) : Exp.Lap. & Extraction of R.W. Operative Findings: Numerous R.W. in the small gut with yellowish collection of fluid in the peritoneal cavity. Procedure: The abdomen was opened by midline incision above and below the umbilicus. The peritoneal cavity was found to contain yellowish fluid a small amount of which was collected and sent for c/s & biomedical examination. The small gut was found to contain many round worms. They were collected at one place and extracted out by making a nick in the gut. The wound was closed in layers. A rubber corrugated drain was placed in the peritoneal cavity. The abdomen was closed in one layer by vieryl. skin was left open.” 6. Learned SCDRC found that the patient was haemophilic and not peritonitis as diagnosed by the Respondents. However, since the platelets count was 35000 per cu.mm against normal range of 1.5 lakhs to 4 lakhs per cu. mm, the Operating Surgeon was medically negligent in operating patient when the platelets count was so low. Thus, the opposite party was found negligent in carrying out surgery. The SCDRC awarded a sum of Rs. 4,00,000/- as compensation to be paid by the Kurji Holy Family Hospital-Opposite Party No.1 and Rs. 2,00,000/- by the Opposite Party No.3-Operating Surgeon with 6 percent simple interest, apart from Rs. 32,000/- as expenditure incurred in medical treatment and the litigation costs of Rs. 25,000/-. In appeal by the Operating Surgeon, the amount of compensation awarded against Operating Surgeon was set aside by NCDRC. 7. The NCDRC though held the Opposite Party No. 3 wee bit negligent but, it found that the amount of compensation awarded by the SCDRC and paid by the 3 Kurji Holy Family Hospital is just a proper compensation. The Operating Surgeon was warned to be careful in future. 8. The argument of the learned counsel for the Appellant is that it is a case of sheer medical negligence in operating the son of the Appellant even though he had low platelet count as 35000 cu.mm as against normal platelet count of 1.5 lakhs cu.mm to 4 lakhs cu. mm. 9. On the other hand, learned counsel for the Respondents argued that when the patient was admitted on 10.11.1995, there was haemorrhage in both eyes for the last five days. After admission as per the affidavit of Dr. Hare Ram Singh, the first BT and CT test were done at about 8.55 pm (pg. 23 of paper book) which was quite low. The second test which was higher than the normal bleeding and clotting time was conducted at 7.30 AM on 11.11.1995 (pg. 24 of paper book). Another test was conducted at 9.00 AM on 11.11.1995 (pg. 25 of paper book). The last test before the surgery was conducted at 10.30 AM. 10. It is thus, contended that the patient was in difficult and critical medical condition. Therefore, the option with the Surgeon was to try to save life by removing the round worms and transfuse blood to facilitate recovery of the patient. It was bona fide decision taken by the Operating Surgeon in the situation in which the patient was. Therefore, performing of surgery on 11.11.1995 at 11.15 AM is not a case of medical negligence. 11. It is contented that the affidavit of Dr. Hare Ram Singh is in respect of reports immediately before the surgery but there is no report in respect of the medical condition of the patient at the time of his admission to the Kurji Holy Family Hospital. Therefore, the affidavit of Dr. Hare Ram Singh is not the complete evidence as without reporting about the condition of the patient at the time of 4 admission, it is not possible for another doctor to report whether the action of Operating Surgeon was negligent or not. 12. At the time of admission, the recorded history of the patient is complaint of pain in abdomen, fever and haemorrhage in both eyes for the past five days. However, there is no evidence of critical condition of the patient to be operated upon even with low platelet count. The surgery to remove round worms is not proved to be of immediate necessity to save life of a patient who had critical platelet count. In the absence of any evidence that the surgery was the only life saving option available at that time, the action to operate upon the patient cannot be said to be prudent decision. This Court recently in <cite>Arun Kumar Manglik v. Chirayu Medical Health and Medicare Private Ltd.</cite>4 held as under:- The threshold unreasonable. “53. In the practice of medicine, there could be varying approaches to treatment. There can be a genuine difference of opinion. However, while adopting a course of treatment, the medical professional must ensure that it is not to prove unreasonableness is set with due regard to the risks associated with medical treatment and the conditions under which medical professionals function. This is to avoid a situation where doctors resort to ‘defensive medicine’ to avoid claims of negligence, often to the detriment of the patient. Hence, in a specific case where unreasonableness in professional conduct has been proven with regard to the circumstances of that case, a professional cannot escape liability for medical evidence merely by relying on a body of professional opinion.” 13. In fact, this Court in <cite>Kusum Sharma and Others v. Batra Hospital and Medical Research Centre and Others5</cite>, held that the “Doctors in complicated cases have to take chance even if the rate of survival is low. The professional should be held liable for his act or omission, if negligent; is to make life safer and to eliminate the possibility of recurrence of negligence in future”. But, in the 4 <cite>2019 SCC OnLine SC 197 5 (2010) 3 SCC 480</cite> 5 absence of any evidence that the surgery was the only option even with low blood platelets, the finding of negligence of the operating surgeon cannot be ignored. 14. Thus, we find that it is a case of unreasonable decision of the Operating Surgeon to operate and not a case of “bit negligent” so as to absolve the surgeon from the allegation of medical negligence. Consequently, the finding of NCDRC to that extent is set aside. 15. In respect of amount of compensation, the NCDRC held that sum of Rs.4,00,000/- awarded by the SCDRC against the Hospital is just compensation. The appellant relies upon judgment of this court reported as <cite>V. Krishnakumar v. State of Tamil Nadu and Others6</cite> to claim enhanced amount of compensation. In the said case of medical negligence at the time of delivery of a baby girl born to middle class family, this Court held as under:- “19. The principle of awarding compensation that can be safely relied on is restitutio in integrum. This principle has been recognised and relied on in <cite>Malay Kumar Ganguly v. Sukumar Mukherjee</cite> 7 and in <cite>Balram Prasad case</cite>8, in the following passage from the latter: (Malay Kumar Ganguly case, SCC p. 282, para 170) “170. Indisputably, grant of compensation involving an accident is within the realm of law of torts. It is based on the principle of restitutio in integrum. The said principle provides that a person entitled to damages should, as nearly as possible, get that sum of money which would put him in the same position as he would have been if he had not sustained the wrong. (See Livingstone v. Rawyards Coal Co9)” An application of this principle is that the aggrieved person should get that sum of money, which would put him in the same position if he had not sustained the wrong. It must necessarily result in compensating the 6 (2015) 9 SCC 388 7 (2009) 9 SCC 221 8 (2014) 1 SCC 384 9 (1880) LR 5 AC 25 (HL) 6 aggrieved person for the financial loss suffered due to the event, the pain and suffering undergone and the liability that he/she would have to incur due to the disability caused by the event.” 16. In a Judgment of this Court reported as <cite>National Insurance Company Limited v. Pranay Sethi and Others10</cite>, a Constitution Bench has laid down parameters for the grant of compensation in respect of claims arising out of Motor Vehicular accidents as just compensation has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. The Court held as under:- “55. Section 168 of the Act deals with the concept of "just compensation" and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. It can never be perfect. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. The conception of "just compensation" has to be viewed through the prism of fairness, reasonableness and non- violation of the principle of equitability. In a case of death, the legal heirs of the claimants cannot expect a windfall. Simultaneously, the compensation granted cannot be an apology for compensation. It cannot be a pittance. Though the discretion vested in the tribunal is quite wide, yet it is obligatory on the part of the tribunal to be guided by the expression, that is, "just compensation". The determination has to be on the foundation of evidence brought on record as regards the age and income of the deceased and thereafter the apposite multiplier to be applied. The formula relating to multiplier has been clearly stated in Sarla Verma11 and it has been approved in Reshma Kumari12. The age and income, as stated earlier, have to be established by adducing evidence. The tribunal and the courts have to bear in mind that the basic principle lies in pragmatic computation which is in 10 (2017) 16 SCC 680 11 (2009) 6 SCC 121 12 (2013) 9 SCC 65 7 proximity to reality. It is a well-accepted norm that money cannot substitute a life lost but an effort has to be made for grant of just compensation having uniformity of approach. There has to be a balance between the two extremes, that is, a windfall and the pittance, a bonanza and the modicum. In such an adjudication, the duty of the tribunal and the courts is difficult and hence, an endeavour has been made by this Court for standardisation which in its ambit includes addition of future prospects on the proven income at present. As far as future prospects are concerned, there has been standardisation keeping in view the principle of certainty, stability and consistency. We approve the principle of "standardisation" so that a specific and certain multiplicand is determined for applying the multiplier on the basis of age.” 17. Thus, the compensation has to be calculated on the basis of twin criteria of age and income. But in the absence of income of the father or family, there is no legally acceptable norm available on record for the enhancement of compensation. 18. The SCDRC has awarded a sum Rs.4,00,000/- as compensation payable by the Hospital and Rs.2,00,000/- by the Operating Surgeon. The NCDRC found a sum of Rs. 4,00,000/- as just compensation and absolved the Operating Surgeon from any liability. When the SCDRC has awarded a sum of Rs. 6,00,000/- as compensation, the NCDRC should not have interfered with the amount of compensation but could apportion the amount of compensation payable by the Operating Surgeon to the Hospital as the liability of Hospital to pay the amount of compensation is vicarious as the death has occurred during the course of employment of Operating Surgeon with the said Hospital. 19. Therefore, we find that the entire amount of Rs.6,00,000/- is payable by the Hospital which would be just compensation in the facts and circumstances of the present case. The enhanced amount of compensation of Rs.2,00,000/- shall be 8 paid by the Hospital along with interest at the rate of 6% per annum from the date of the order passed by SCDRC on 12.11.2014. 20. Thus, the appeal is partly allowed in the manner mentioned above.

1. Feeling   aggrieved   and   dissatisfied   with   the   impugned judgment and  order dated 13.08.2021 passed by the High Court of Judicature at Madras in O.S.A. No.292 of 2019, by which the Division Bench of the High Court has dismissed the said appeal preferred by the original plaintiff rejecting the plaint/suit filed by the appellant herein – original plaintiff on the   ground   that   the   suit   is   barred   by   Section   34   of   the 1 SARFAESI Act, 2002, the original plaintiff has preferred the present appeal.  2. The  facts leading  to the  present appeal  in nutshell  are  as under:­ 2.1 That   original   defendant   No.3   ­   respondent   No.3   herein (hereinafter referred to as original defendant No.3) availed the loan  facility  vide  Rupee   Loan  Agreement dated   26.07.2011 from   defendant   No.2   ­   respondent   No.2   herein   –   SREI Infrastructure   Finance   Limited   and   availed   the   financial assistance   to   the   extent   of   Rs.500   crores.   The   appellant herein – original plaintiff stood as guarantor. A mortgage was created by the appellant herein – original plaintiff in favour of defendant No.2 – respondent No.2 herein – financial creditor over its factory land at Evalur, Tamil Nadu along with plant and machinery, by way of deposit of title deeds in terms of the   declaration   to   secure   the   repayment,   discharge   and redemption   by   original   defendant   No.3.   That   original defendant   No.3   –   corporate   debtor   could   not   pay   the   loan amount,   therefore   the   proceedings   under   the   Insolvency Bankruptcy   Code,   2016   (IBC)   was   initiated   against   the 2 corporate debtor. An application under Section 7 of the IBC was   filed   by   the   State   Bank   of   India   against   original defendant No.3 – corporate debtor. The default amount was INR   923,75,00,000/­.   The   resolution   process   was   initiated and an interim resolution professional was appointed under the provisions of IBC. A resolution plan came to be approved by the Committee of Creditors under Section 30(4) of the IBC. The   learned   Adjudicating   Authority   vide   order   dated 17.04.2018   approved   the   resolution   plan.   Under   the approved   resolution   plan   an   amount   of   INR 241,71,84,839.18   was   required   to   be   paid   and   67,23,710 equity shares of the corporate debtor were to be allotted. As per the case on behalf of the plaintiff – appellant herein on payment of aforesaid amount and transfer of aforesaid shares No   Due   Certificate   was   issued   in   favour   of   the   corporate debtor   –   original   defendant   No.3   on   25.06.2018   and   the corporate   debtor   came   to   be   discharged.   It   appears   that thereafter an assignment agreement was executed between defendant No.2 – respondent No.2 herein and defendant No.1 – respondent No.1 herein on 30.06.2018, assigning all the rights,   titles   and   interest   in   all   the   financial   assistance 3 provided by defendant No.2 – financial creditor ­ respondent No.2   herein   in   terms   of   agreement   dated   26.07.2011   in favour   of   assignee   ­   respondent   No.1.   As   assignee   ­ respondent   No.1   herein   pursuant   to   the   assignment agreement   dated   30.06.2018   had   issued   letter   to   all   the interested   parties,   namely,   assignor   ­   financial   creditor, guarantor   and   corporate   debtor   informing   that   assignor   – financial   creditor   ­   respondent   No.2   herein   had   absolutely assigned all the rights, title and interest in all the financial assistance   granted   by   financial   creditor   ­   respondent   No.2 herein   from   time   to   time   to   corporate   debtor   in   favour   of assignee   ­   respondent   No.1   herein   vide   assignment agreement dated 30.06.2018. The said letter was responded by the plaintiff – appellant herein stating the following :­ (i) “Respondent  No.2   had   duly   filed   its   claim before the Resolution Professional in accordance with the provisions of IBC.  (ii) This claim was crystallised and admitted at INR   577.90   Crores   and   also   formed   part   of   the approved Resolution Plan of Vedanta Limited.  Pursuant to the approved Resolution Plan, (iii) the   entire   debt   of   Respondent   No.2   has   been discharged   by   way   of   allotment   of   shares   and payment   in   cash   on   6.06.2018   and   21.06.2018 respectively.  4 (iv) It   was   also   highlighted   that   in   terms   of section   3.2(xi)   of   the   approved   Resolution   Plan, upon   discharge   of   financial   creditors   (including Respondent   No.2),   the   financial   creditors   were required to redeliver and cause to be delivered to Petitioner   all   documents   encumbered   with   the financial creditors.  (v) Therefore,   when   no   due   was   outstanding and in fact redelivery of encumbered assets was required, there was no basis under contract or law for assignment of loan/debts/securities.  (vi) It   was   emphasised   that   assignment agreement   dated   30.06.2018   was   null,   void   ab initio and without any basis.” 2.2 That   thereafter   on   the   basis   of   the   assignment   agreement dated 30.06.2018, the assignee – original defendant No.1 – respondent No.1 herein initiated the proceedings against the plaintiff – appellant herein, who stood as guarantor, under Section   13(2)   of   the   Securitisation   and   Reconstruction   of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) by issuing a notice dated 27.12.2018, demanding the payment of INR 587,10,08,309 due under the rupee term loan agreement dated 26.07.2011. Notice dated 27.12.2018   of   the   SARFAESI   Act   was   responded   by   the plaintiff   –   appellant   herein   vide   reply   dated   20.02.2019 stating that pursuant to repayment of amount in terms of the approved resolution plan, all the claims of financial creditor ­ 5 respondent   No.2   herein   stand   extinguished   and consequently,   no   claim   can   be   made   by   the   assignee   ­ respondent   No.1   herein   for   the   same   default   and   that   no amount is due and payable to assignee ­ respondent No.1. That   thereafter   a   possession   notice   dated   19.06.2019   was issued under rule 8 (1) of the Security Interest (Enforcement) Rules,   2002   by   the   assignee   to   the   plaintiff   –   appellant herein.   Thus   a   possession   notice   was   published   in   the newspaper on 22.06.2019.  2.3 That thereafter the plaintiff – appellant herein instituted a Civil   Suit   being   C.S.(D)   No.18962   of   2019   on   22.06.2019 before the High Court of Madras and prayed for the following reliefs:­ “(i).   To   declare   that   the   1st   Defendant acquired   no   rights   against   the   Applicant herein   under   the   Assignment   Deed   dated 30.06.2018,   arid   consequently,   declare   that the 1st Defendant is not a secured creditor vis­a­vis, the Applicant herein; and (ii).   Consequently,   to   declare   Possession Notice   dated   19.6.2019   issued   by   the   1st Defendant   herein   has   null   and   vend   and render justice.” 6 2.4 The suit was filed with an application seeking leave to file the suit with the aforesaid prayers. As observed hereinabove, the suit   was   filed   on   22.06.2019.   Immediately   thereafter appellant herein – plaintiff also filed an application before the Debt Recovery Tribunal (DRT), Chennai under Section 17(1) of   SARFAESI   Act   on   17.07.2019   against   the   possession notice   dated   19.06.2019   praying   that   the   assignee   has acquired   no   rights   under   the   assignment   agreement   dated 30.06.2018 and consequently, assignee ­ respondent No.1 is not a secured creditor vis­a­vis the appellant – plaintiff and also to declare possession notice dated 19.06.2019 as null and void.  The registry of DRT returned the application filed under Section 17(1) of SARFAESI Act by observing as under:­ “Counsel for the Appellant has represented SA without   complying   with   the   defects   read   out, however   with   an   endorsement   that   he   is   a proper   and   necessary   party   and   that   relief prayed for vide Para VII(i) is maintainable. He has   reiterated   that   relief   has   to   be   sought   in relation to the notice under challenge.  May be returned.” 2.5 The  defendants  appeared  before  the  High Court  in C.S.(D) No.18962 of 2019, affidavits and counter affidavits were filed by the parties to the suit. By order dated 30.09.2019, the 7 learned Single Judge of the High Court dismissed application No.4322   of   2019   and   C.S.(D)   No.18962   of   2019   on   the ground of jurisdiction observing that the suit is for land and property  situated  outside   the   jurisdiction  of   the   court  and therefore the suit is not maintainable. It was also observed and held that the civil court’s jurisdiction is barred in view of Section   34   of   the   SARFAESI   Act   and   only   DRT   had competence to decide the matter.  3. Feeling aggrieved and dissatisfied with the order passed by the learned Single Judge of the High Court dismissing the application as well as the suit vide order dated 30.09.2019, appellant herein – original plaintiff filed an appeal before the Division   Bench   of   the   High   Court   being   O.S.A.   No.292   of 2019.   By   the   impugned   judgment   and   order   the   Division Bench of the High Court has dismissed the said appeal in view of the bar under Section 34 of the SARFAESI Act.  4. Feeling   aggrieved   and   dissatisfied   with   the   impugned judgment and order passed by the Division Bench of the High Court   confirming   the   judgment   and   order   passed   by   the learned Single Judge rejecting the plaint/dismissing the suit 8 as not maintainable in view of the bar under Section 34 of the SARFAESI Act, original plaintiff – appellant herein has preferred the present appeal.  5. Dr. A.M. Singhvi, learned Senior Advocate has appeared on behalf of the appellant and Shri Shyam Divan, learned Senior Advocate   has   appeared   with   Shri   Huzefa   Ahmadi,   learned Senior Advocate, on behalf of the respondents – defendants.  5.1 Dr. Singhvi, learned Senior Advocate appearing on behalf of the   plaintiff   ­   appellant   herein   has   vehemently   submitted that in the facts and circumstances of the case both, learned Single Judge as well as the Division Bench have materially erred in rejecting the plaint and dismissing the suit on the ground   that   the   suit   is   barred   in   view   of   the   bar   under Section 34 of SARFAESI Act.  5.2 It   is   submitted   that   the   High   Court   has   not   properly appreciated and considered the fact that in the suit plaintiff had pleaded the fraud and it was the case on behalf of the plaintiff   –  appellant   herein   that   the   assignment   agreement dated   30.06.2018   is   fraudulent   and   relief   was   sought   to 9 declare the assignment agreement dated 30.06.2018 as null and void by the plaintiff – appellant herein, the said relief cannot be granted by the DRT under the provisions of the SARFAESI Act and therefore the bar under Section 34 of the SARFAESI Act shall not be applicable.  5.3 It is submitted that when the suit is filed alleging ‘fraud’ the bar   under   Section   34   of   the   SARFAESI   Act   shall   not   be applicable and the suit for the reliefs sought in the plaint shall be maintainable.  5.4 It is submitted that even otherwise considering the fact that subsequently   and   before   the   assignment   agreement,   the proceedings under the IBC against the corporate debtor with respect to the loan agreement dated 26.07.2011were initiated and the resolution plan was approved and entire amount due and payable under the approved resolution plan was paid to the   successful   resolution   applicants   and   even   67,23,710 equity shares of the corporate debtor came to be transferred as per the approved resolution plan and the original loanee – corporate   debtor   was   discharged   and   NOC   was   issued, therefore,   assignment   deed   can   be   said   to   be   ‘fraudulent’ 10 after   the   resolution   plan   under   IBC   and   the   amount   paid under the resolution plan and on transfer of the shares as per the approved resolution plan and the corporate debtor was discharged.  Therefore, there shall not be any dues to be paid by the appellant herein as guarantor.   5.5 It   is   submitted   that   as   such   not   only   the   assignment agreement   dated   30.06.2018   is   null   and   void   and   is ‘fraudulent’ even the assignee cannot be said to be a secured creditor so far as the appellant is concerned.  5.6 It   is   further   submitted   by   Dr.   Singhvi,   learned   Senior Advocate appearing on behalf of the appellant that there is no legally enforceable debt by the plaintiff – appellant herein for the reasons stated above and therefore the initiation of the proceedings under the SARFAESI Act are bad in law and not maintainable.  5.7 In the alternative, it is prayed by Dr. Singhvi, learned Senior Advocate appearing on behalf of the appellant that in case this   Court  is   not   inclined   to   entertain  the   present  appeal, confirming the judgment and order passed by the High Court 11 rejecting   the   plaint/dismissing   the   suit,   in   that   case   the original plaintiff – appellant may be given an opportunity to file the proceedings before the DRT under the SARFAESI Act and all the contentions including that assignment agreement is   null   and   void;   that   assignee   cannot   be   said   to   be   the secured   creditor   under   the   assignment   agreement   dated 30.06.2018;   and   that   there   are   no   dues   so   far   as   the appellant – plaintiff is concerned may be kept open. He has stated that in that case the appellant shall file appropriate proceedings   before   the   DRT   within   a   period   of   two   weeks from today.  6. Present appeal is vehemently opposed by Shri Shyam Divan, learned   Senior   Advocate   and   Shri   Huzefa   Ahmadi,   learned Senior   Advocate,   appearing   on   behalf   of   the   contesting defendants – original defendants – respondents herein.  6.1 It is vehemently submitted that the suit before the learned Single Judge filed by the appellant is rightly held to be not maintainable   in   view   of   the   bar   under   Section   34   of   the SARFAESI Act.  12 6.2 It is vehemently submitted that as such the suit is rightly held to be not maintainable. It is submitted that initiation of the proceedings by the appellant by filing of the suit for the reliefs sought in the plaint is nothing but abuse of process of law and court.  6.3 It is submitted that the allegations of ‘fraud’ are nothing but a   clever   drafting   only   with   a   view   to   bring   the   suit maintainable   before   the   civil   court   despite   the   bar   under Section 34 of the SARFAESI Act.  6.4 It   is   vehemently   submitted   by   the   learned   senior   counsel appearing   on   behalf   of   the   respondents   herein   –   original defendants   that  except  using   the   word   ‘fraud’/’fraudulent’, there   are   no   other   particulars   pleaded   in   support   of   the allegations of fraud. It is submitted that pleading of ‘fraud’ is made at two places in the plaint namely para 31 and para 46. At both these places, the assertion is that consequent to the   alleged   discharge   of   the   debt   of   the   corporate   debtor through   the   proceedings   under   the   IBC,   no   assignment   of such debt in favour of assignee could have been made and, 13 thus, for this reason, the initiation of proceedings under the SARFAESI   Act,   is   fraudulent.   It   is   submitted   that   on   the aforesaid ground the assignment deed cannot be said to be ‘fraudulent’.   6.5 It is further submitted that the word ‘fraud’/’fraudulent’ are used   in   the   plaint   only   with   a   view   to   bring   the   suit maintainable before the civil court and to get out of the bar under Section 34 of the SARFAESI Act. It is submitted that after   a   month   of   filing   of   the   suit,   the   appellant   filed   an application under Section 17(1) of SARFAESI ACT before the DRT, Chennai, assailing the possession notice issued by the assignee under section 13(4) of the SARFAESI Act, however, in the said application, no allegation of any kind of fraud was made against any of the respondents.  6.6 It   is   submitted   that   in   any   case   a   bare   review  of   the assertions   in   paras   31   and   46,   it   can   be   seen   that   no material particulars have been pleaded so as to constitute a pleading of ‘fraud’ as required under Order VI Rule 4 of the Civil Procedure Code,1908 (CPC). It is submitted that apart 14 from   use   of   adjectives   such   as   ‘fraudulent’   etc.,   qua   the assignment deed, no actual material particulars have been given   with   regard   to   the   ‘fraud’.   It   is   submitted   that   the pleadings in para 31 and para 46 do not satisfy the test of ‘fraud’ under Section 17 of the Indian Contract Act, 1872. 6.7 It is vehemently submitted by the learned Senior Advocates appearing on behalf of the respondents herein that as per the settled   preposition   of   law   pleading   without   any   material particulars   would   not   tantamount   to   a   pleading   of   ‘fraud’. Reliance is placed on the decisions of this Court in the cases of <cite>Bishundeo Narain & Anr. vs. Seogeni Rai & Jagernath, (1951)   SCR   548</cite>;  <cite>Ladli   Parshad   Jaiswal   vs.   The   Karnal Distillery Co. Ltd., Karnal &Ors.,(1964) 1 SCR 270</cite>; <cite>Canara Bank   vs.   P.   Selathal   &   Ors.,(2020)   13   SCC   143</cite>;   <cite>H.S Goutham vs. Rama Murthy & Anr.,(2021) 5 SCC 241</cite>; <cite>Ram Singh vs. Gram Panchayat Mehal Kalan & Ors.,(1986) 4 SCC 364</cite>;  and  <cite>Union of India & Anr. vs. K.C Sharma & Company & Ors.,(2020) 15 SCC 209</cite>.  15 6.8 Making   the   above   submissions   and   relying   upon   the decisions   of   this   Court   in   aforesaid   cases,   it   is   prayed   to dismiss the present appeal.  7. We   have   heard   the   learned   senior   counsel   appearing   on behalf of the respective parties at length.  7.1 It is the case on behalf of the plaintiff – appellant herein that in the plaint there are allegations of the ‘fraud’ with respect to the assignment agreement dated 30.06.2018 and it is the case   on   behalf   of   the   plaintiff   –   appellant   herein   that assignment agreement is ‘fraudulent’ in as much as after the full payment as per the approved resolution plan under the IBC   and   the   original   corporate   debtor   is   discharged,   there shall not be any debt by the plaintiff – appellant herein as a guarantor   and   therefore   Assignment   deed   is   fraudulent. Therefore, it is the case on behalf of the plaintiff – appellant herein that the suit in which there are allegations of ‘fraud’ with respect to the assignment deed shall be maintainable and the bar under Section 34 of SARFAESI Act shall not be applicable.  16 7.2 However,   it   is   required   to   be   noted   that   except  the   words used   ‘fraud’/’fraudulent’   there   are   no   specific   particulars pleaded with respect to the ‘fraud’. It appears that by a clever drafting and using the words ‘fraud’/’fraudulent’ without any specific particulars with respect to the ‘fraud’, the plaintiff – appellant herein intends to get out of the bar under Section 34   of   the   SARFAESI   Act   and   wants   the   suit   to   be maintainable.   As   per   the   settled   preposition   of   law   mere mentioning   and   using   the   word   ‘fraud’/’fraudulent’   is   not sufficient   to   satisfy   the   test   of   ‘fraud’.   As   per   the   settled preposition of law such a pleading/using the word ‘fraud’/ ‘fraudulent’   without   any   material   particulars   would   not tantamount   to   pleading   of   ‘fraud’.   In   case   of  <cite>Bishundeo Narain and Anr. (Supra)</cite> in para 28, it is observed and held as under:­ “....   Now   if   there   is   one   rule   which   is   better established than any other, it is that in cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case   can   only   be   decided   on   the   particulars   as laid.   There   can   be   no   departure   from   them   in evidence. General allegations are insufficient even to amount to an averment of fraud of which any court   ought   to   take   notice   however   strong   the language in which they are couched may be, and 17 the same applies to undue influence and coercion. See Order 6, Rule 4, Civil Procedure Code.” 7.3 Similar view has been expressed in the case of <cite>Ladli Parshad Jaiswal   (Supra)</cite>  and   after   considering   the   decision   of   the Privy   Council   in  <cite>Bharat   Dharma   Syndicate   vs.   Harish Chandra (64 IA 146)</cite>, it is held that a litigant who prefers allegation of fraud or other improper conduct must place on record precise and specific details of these charges. Even as per Order VI Rule 4 in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, particulars shall be stated in the pleading. Similarly in the case of  <cite>K.C Sharma & Company (Supra)</cite>  it   is   held   that   ‘fraud’   has   to   be   pleaded   with necessary particulars. In the case of  <cite>Ram Singh and Ors. (Supra)</cite>, it is observed and held by this Court that when the suit is barred by any law, the plaintiff cannot be allowed to circumvent that provision by means of clever drafting so as to avoid mention of those circumstances by which the suit is barred by law of limitation.  18 7.4 In the case of  <cite>T. Arivandandam vs. T.V. Satyapal & Anr. (1977)   4   SCC   467</cite>,   it   is   observed   and   held   in   para   5   as under:­ “5. We   have   not   the   slightest   hesitation   in condemning the petitioner for the gross abuse of the   process   of   the   court   repeatedly   and unrepentently resorted to. From the statement of the facts found in the judgment of the High Court, it   is   perfectly   plain   that   the   suit   now   pending before   the   First   Munsif's   Court,   Bangalore,   is   a flagrant   misuse   of   the   mercies   of   the   law   in receiving   plaints.   The   learned   Munsif   must remember that if on a meaningful — not formal — reading   of   the   plaint   it   is   manifestly   vexatious, and   meritless,   in   the   sense   of   not   disclosing   a clear right to sue, he should exercise his power under Order 7, Rule 11 CPC taking care to see that   the   ground   mentioned   therein   is   fulfilled. And, if clever drafting has created the illusion of a cause   of   action,   nip   it   in   the   bud   at   the   first hearing by examining the party searchingly under Order 10, CPC. An activist Judge is the answer to irresponsible law suits.”  7.5 A similar view has been expressed by this court in the recent decision in the case of <cite>P. Selathal & Ors. (Supra)</cite>. 8. Having considered the pleadings and averments in the suit more particularly the use of word ‘fraud’ even considering the case on behalf of the plaintiff, we find that the allegations of ‘fraud’ are made without any particulars and only with a view to get out of the bar under Section 34 of the SARFAESI Act and by such a clever drafting the plaintiff intends to bring 19 the suit maintainable despite the bar under Section 34 of the SARFAESI   Act,   which   is   not   permissible   at   all   and   which cannot be approved. Even otherwise it is required to be noted that it is the case on behalf of the plaintiff – appellant herein that in view of the approved resolution plan under IBC and thereafter   the   original   corporate   debtor   being   discharged there shall not be any debt so far as the plaintiff – appellant herein is concerned and therefore the assignment deed can be said to be ‘fraudulent’.  The aforesaid cannot be accepted. By   that   itself   the   assignment   deed   cannot   be   said   to   be ‘fraudulent’.   In   any   case,   whether   there   shall   be   legally enforceable debt so far as the plaintiff – appellant herein is concerned   even   after   the   approved   resolution   plan   against the corporate debtor still there shall be the liability of the plaintiff   and/or   the   assignee   can   be   said   to   be   secured creditor and/or whether any amount is due and payable by the plaintiff, are all questions which are required to be dealt with and considered by the DRT in the proceedings initiated under the SARFAESI Act. It is required to be noted that as such in the present case the assignee has already initiated the proceedings under Section 13 which can be challenged 20 by the plaintiff – appellant herein by way of application under Section 17 of the SARFAESI Act before the DRT on whatever the legally available defences which may be available to it. We are of the firm opinion that the suit filed by the plaintiff – appellant herein was absolutely not maintainable in view of the  bar contained  under  Section 34 of   the  SARFAESI  Act. Therefore, as such the courts below have not committed any error in rejecting the plaint/dismissing the suit in view of the bar under Section 34 of the SARFAESI Act.  9. In view of the above and for the reasons stated above, the present appeal fails and the same deserves to be dismissed and is accordingly dismissed. However, it will be open for the appellant   herein   to   initiate   appropriate   proceedings   before the DRT under Section 17 of the SARFAESI Act against the initiation   of   the   proceedings   by   the   assignee   –   respondent No.1 herein under Section 13 of the SARFAESI Act inter alia on the ground:­ (1) that the assignee cannot be said to be secured creditor so far as the appellant is concerned; (2) that there   is   no   amount   due   and   payable   by   the   plaintiff   – appellant   herein   on   the   ground   that   in   view   of   the 21 proceedings under IBC against the corporate debtor and the corporate   debtor   being   discharged   after   the   approved resolution   plan,   there   shall   not   be   any   enforceable   debt against the appellant. If such an application is filed within a period of two weeks from today the same be considered in accordance with law and on merits after complying with all other requirements which may be required while filing the application under Section 17 of the SARFAESI Act. However, it   is   made   clear   that   we   have   not   expressed   anything   on merits in favour of either of the parties on the aforesaid two issues. Present appeal is accordingly dismissed, however, in the  facts  and circumstances of the case there shall be no order as to costs 

2. These appeals arise out of the judgment dated 23.02.2012 passed by the High Court of Punjab and Haryana at Chandigarh in LPA No.264 of 2012 and Order dated 04.05.2012 in LPA 1607- LPA of 2012 dismissing the appeals and the order dated 04.05.2012 in review petition in RA No.LP-16 of 2012 dismissing the review filed by the appellant-Board by holding that the SLP(C) No.10896 of 2011 involving the same issue i.e. parity of pay scale is already pending before the Supreme Court. 1 3. The parity in the pay scales of two posts – Head Clerks and the Internal Auditors in Group XII of the Punjab State Electricity Board (PSEB) is the subject matter of the issue in these present appeals. Brief facts of the case are as under:- The Punjab State Electricity Board (PSEB), in exercise of the power conferred under Section 79(c) of the Electricity (Supply) Act, 1948 framed “Punjab Public Works Departments (Electricity Branch) State Service Class-III (Subordinate Posts) Rules, 1958 (adopted by the Board) Amendment Regulations, 1975. The recruitment and conditions of service governing the Head Clerks was introduced on 11.09.1985 which is called the Punjab State Electricity Board Ministerial Services Class–III Regulations, 1985 providing for educational qualifications and minimum experience required for Head Clerks. Initially, the pay scale of Head Clerks was Rs.150-300 and the pay scale of Internal Auditors was Rs.130-240. The pay scale of Internal Auditors was revised to Rs.150-300 w.e.f. 01.08.1963. Head Clerks and Internal Auditors were getting same pay scale of Rs.225-500 from 01.06.1967 and Rs.620-1200 from 01.01.1978. From 21.03.1989, revised scale of pay of regular employees was issued by the PSEB, and w.e.f. 01.01.1986, the scale of pay of the Head Clerks and the Internal Auditors was revised to Rs.1640-2925. 2 4. Pay Anomaly Committee was constituted by the appellant- Board to review the anomalies in the pay scales of various cadre. That on the basis of the report of Pay Anomaly Committee, the pay scale of both the categories - Internal Auditors and Head Clerks have been improved vide office order No.223/Fin./PRC-1988 dated 03.10.1990. The Internal Auditors have been allowed the revised scale of Rs.1800-3200 w.e.f. 01.01.1986 considering that the posts of Internal Auditors are filled by 55% from direct recruitment and 45% by promotion. The Head Clerks have been allowed the pay scale of Rs.2000-3500 with effect from 01.01.1986 and thus linked the scale of Head Clerk with Superintendent Grade-II under State Government. 5. Aggrieved by the order dated 03.10.1990 issued by the appellant-Board and alleging disparity and violation of Article 14 of the Constitution of India, the respondents preferred Civil Writ Petition No.10117 of 1992 before the High Court of Punjab and Haryana at Chandigarh, contending that the Internal Auditors, Head Clerks as well as Sub Fire Officers belong to same group viz. Group XII and that Internal Auditors were always on par with the Head Clerks being the promotional post from the post of Circle Assistants/ARAs Group XII. It was averred that vide order 3 dated 03.10.1990, the appellant-Board fixed the pay scale of the Internal Auditor at Rs.1800-3200 and of the Head Clerks at Rs.2000-3500 and thus disturbing the parity in the pay scales of two posts which were being maintained for more than two decades. According to the respondents, the pay scale of Rs.1800-3200 had been given to the post of Circle Assistant from which the respondents were being promoted and there is no justification to give the same pay scale to the promotional post as well as feeder cadre. The said revision of pay scale was totally illogical and without any justification. 6. In the counter affidavit filed before the High Court, the appellant-Board contended that though the posts of Head Clerks and Internal Auditors are categorised in Group XII, that cannot be the reason for claiming parity of pay scale. It was averred that the manner of recruitment, nature of duties and responsibilities of both the cadres are entirely different and respondents cannot claim parity of scale of pay. As per PSEB Ministerial Services Class-III Regulations, 1975, the post of Head Clerk is a promotional post and is generally available to the employees after completion of twenty- five years of service; whereas in the case of Internal Auditors, they are partly recruited directly from the market to the extent of 55% and 4 balance 45% from Circle Assistants/ARAs after obtaining option for the purpose. According to the Board, on promotion the Circle Assistant/ARA are also eligible to opt for the cadre of Head Clerk and they cannot contend that they have not been given any opportunity for the post of Head Clerk. It is averred that the exercise of option to go in the channel of cadre of Internal Auditor is a ‘preferred option’ because of the promotional avenues with higher scales of pay. In view of this position, the Pay Anomaly Committee did not accept the demand of Internal Auditors to give parity with Head Clerks in the matter of pay scale. 7. Sub Fire Officers which is categorised in Group XII approached the High Court by way of Civil Writ Petition No.9294 of 1993 seeking parity in pay scale as that of the Head Clerks and Internal Auditors on the ground that they are included in the same group viz., Group XII. The learned Single Judge vide judgment dated 21.01.2010 allowed the CWP No.9294 of 1993 filed by the Sub Fire Officers by holding that till some point of time, persons working as Head Clerks, Head Clerk-cum-Divisional Accountants and Internal Auditors were given same scale of pay and therefore, parity of scale of pay cannot be denied to the Sub Fire Officers 5 when the scales were increased for other three classes of persons within Group XII. 8. Against the order dated 21.01.2010 in CWP No.9294 of 1993, the appellant-Board preferred LPA No.713 of 2010 which came to be dismissed by the judgment dated 28.09.2010. Aggrieved by the judgment dated 28.09.2010, the appellant preferred SLP(C) No.10896 of 2011 before this Court wherein, notice was issued and the same was pending for consideration before this Court. 9. The learned Single Judge of the High Court by its order dated 11.11.2011 allowed the Civil Writ Petition No.10117 of 1992 filed by the respondents-Internal Auditors claiming parity of pay scale with the Head Clerks on the erroneous assumption that the respondents are Sub Fire Officers or similarly situated as Sub Fire Officers who are seeking parity of wages with other persons. The learned Single Judge relying on the judgment in CWP No.9294 of 1993 dated 21.01.2010 allowed the writ petition without going into the merits of the contention of either of the parties. Appeal (LPA No.713 of 2010) preferred by the appellant-Board also came to be dismissed on the ground that SLP (C) No.10896 of 2011 is pending before the Supreme Court. 6 10. In these appeals, we are concerned with the question of parity of pay scale between the Head Clerks and the Internal Auditors. Though various contentious issues arose for determination between the parties, learned Single Judge as well as the Division Bench of the High Court proceeded under the erroneous footing as if the respondents are placed on par with Sub Fire Officer and held that the issue is covered by the judgment in CWP No.9294 of 1993 and that the issue is pending before the Supreme Court in SLP(C) No.10896 of 2011. Since the writ petition was filed way back in the year 1992 and the lis is pending between the parties for more than twenty-six years, we have proceeded to consider the matter on merits without remitting the matter back to the High Court. We have heard the parties at length. 11. We have heard Mr. Nidhesh Gupta, learned Senior counsel appearing for appellant-Board at length and Mr. Saravpreet Singh, learned counsel appearing for the respondents. The learned Senior counsel Mr. Nidhesh Gupta has inter alia made the following submissions:-  Appellant-Board is competent to revise the pay scales in terms of Regulation 3(g) of Punjab State Electricity Board (Revised Pay) Regulations, 1988 in relation to any post specified in Column No.2 of the Schedule. 7  Internal Auditors who have been directly recruited as Internal Auditors against an open advertisement have consciously applied for the post in the pay scale of Rs.1800-3200 cannot raise a plea that they will have to be placed on par with Head Clerks.  Promotional avenues available to the Internal Auditors are far more in comparison to the promotional avenues which are available to the Head Clerks; the pay scales which are available in the promotional position are sharply higher compared to the Head Clerks and exercise of option as Internal Auditor is a “preferred option”.  Internal Auditors cannot claim parity with Head Clerks on the premise that they are in Group XII; though there were only four cadre in the year 1988 in Group XII, seven more posts were added in Group XII by Finance Circular No.44/89 dated 15.06.1989. Thereafter, vide Finance Circular No.45/89 dated 26.06.1989, there were further increase of seven posts in Group XII and total fourteen posts were added to Group XII. For all these posts, mode of recruitment, qualifications, nature of duties and responsibilities are entirely different and merely because the posts are mentioned in one cadre, they cannot claim parity of scale of pay.  If parity of pay scale is to be extended to the posts merely on the ground that they are categorised in one Group irrespective of the mode of recruitment, qualifications, nature of duties and responsibilities, it will lead to huge financial repercussion causing huge financial loss to PSEB which is a public service-oriented institution. 8 12. Learned counsel for the respondents Mr. Saravpreet Singh submitted that posts of Internal Auditors being in Group XII, who were on par with Head Clerks should be given parity of pay scale as that of Head Clerks, irrespective of the promotional avenues available to the Internal Auditors. It was submitted that the Internal Auditors were always treated on par with Head Clerks being the promotional post from the post of Circle Assistants/ARAs and when so, there was no justification to disturb the parity in the pay scales of two posts which were being maintained for quite some time. Contention of the respondents is that there was a parity of pay scales of the posts of Internal Auditors and Head Clerks for about two decades and while so, the order dated 03.10.1990 issued by the appellant-Board revising the pay scale of Head Clerks from Rs.1640-2925 to Rs.2000-3500 has disturbed the long-standing parity of pay scales of the posts of Head Clerks and the Internal Auditors. It is their contention that where the parity in the pay scales of two posts has been maintained over a period of time then, if the pay scale of one post is revised, the said pay scale is to be maintained for other post also and disturbing such parity would be arbitrary and violative of the Article 14 and Article 16 of the Constitution of India. Much arguments were advanced on the retrospective operation of the order dated 03.10.1990 (w.e.f. 9 01.01.1986) contending that such retrospective operation has caused serious prejudice to the Internal Auditors who have been promoted between the year 1986 to 1990. 13. In the light of the submissions, several issues arise for determination inter alia are as under:-  Whether the Internal Auditors are entitled to claim parity of pay scale with Head Clerks and Head Clerk–cum–Divisional Accountants irrespective of the nature of recruitment, qualifications and nature of duties and responsibilities?  Can the Internal Auditors claim equity of pay scale, merely because they are in the same group (Class-XII) irrespective of the nature of work and the internal qualification for recruitment. In view of the promotional avenues available to the Internal Auditors and the high pay scales which are available in the promotional position, opting for Internal Auditors, is it not a “preferred option”?  When there are about fourteen posts categorised in Group XII, can Internal Auditors claim parity of pay scale with the Head Clerks merely because they were categorised in Group XII? 14. Ordinarily, the courts will not enter upon the task of job evaluation which is generally left to expert bodies like the Pay Commission etc. The aggrieved employees claiming parity must establish that they are unjustly treated by arbitrary action or 10 discriminated. In <cite>Kshetriya Kisan Gramin Bank v. D.B. Sharma and Others (2001) 1 SCC 353</cite>, this Court held as under:- “7. The next question that arises for consideration is, as to what extent the High Court would be justified in exercise of its extraordinary jurisdiction under Article 226 to interfere with the findings of an expert body like the Equation Committee. In State of U.P. and Others v. J.P. Chaurasia and Others (1989) 1 SCC 121, this Court unequivocally held that in the matter of equation of posts or equation of pay, the same should be left to the Executive Government, who can get it determined by expert bodies like the Pay Commission, and such expert body would be the best judge to evaluate the nature of duties and responsibilities of the posts and when such determination by a commission or committee is made, the court should normally accept it and should not try to tinker with such equivalence unless it is shown that it was made with extraneous consideration….” 15. In <cite>S.C. Chandra and Others v. State of Jharkhand and Others (2007) 8 SCC 279</cite>, this Court held as under:- “33. It may be mentioned that granting pay scales is a purely executive function and hence the court should not interfere with the same. It may have a cascading effect creating all kinds of problems for the Government and authorities. Hence, the court should exercise judicial restraint and not interfere in such executive function vide <cite>Indian Drugs & Pharmaceuticals Ltd. v. Workmen, Indian Drugs & Pharmaceuticals Ltd. (2007) 1 SCC 408</cite>. ………. 35. In our opinion fixing pay scales by courts by applying the principle of equal pay for equal work upsets the high constitutional principle of separation of powers between the three organs of the State. Realising this, this Court has in recent years avoided applying the principle of equal pay for equal work, unless there is complete and wholesale identity between the two groups (and there too the matter should be sent for examination by an Expert Committee appointed by the Government instead of the court itself granting higher pay). 36. It is well settled by the Supreme Court that only because the nature of work is the same, irrespective of educational qualification, mode of appointment, experience and other relevant factors, the principle of equal pay for equal work cannot apply vide <cite>Govt. of W.B. v. Tarun K. Roy and Others (2004) 1 SCC 347</cite>.” 11 The same view was reiterated in <cite>Union Territory Administration, Chandigarh and Others v. Manju Mathur and Another (2011) 2 SCC 452</cite>; <cite>State of Haryana and Others v. Charanjit Singh and Others (2006) 9 SCC 321</cite> and in <cite>Hukum Chand Gupta v. Director General, Indian Council of Agricultural Research and Others (2012) 12 SCC 666</cite>. 16. Observing that granting parity in pay scales depends upon the comparative evaluation of job and equation of posts, in <cite>Steel Authority of India Limited and Others v. Dibyendu Bhattacharya (2011) 11 SCC 122</cite>, this Court held as under:- “30. ……….. the law on the issue can be summarised to the effect that parity of pay can be claimed by invoking the provisions of Articles 14 and 39(d) of the Constitution of India by establishing that the eligibility, mode of selection/recruitment, nature and quality of work and duties and effort, reliability, confidentiality, dexterity, functional need and responsibilities and status of both the posts are identical. The functions may be the same but the skills and responsibilities may be really and substantially different. The other post may not require any higher qualification, seniority or other like factors. Granting parity in pay scales depends upon the comparative evaluation of job and equation of posts. The person claiming parity, must plead necessary averments and prove that all things are equal between the posts concerned. Such a complex issue cannot be adjudicated by evaluating the affidavits filed by the parties.” 17. Mode of recruitment of Head Clerks and Internal Auditors and the qualifications:- In the light of the above principles, let us consider the claim of Internal Auditors claiming parity of pay scale with Head Clerks. The mode of appointment and the minimum 12 educational and other qualifications and experience required for Head Clerk are as under:- Sr. No. 12 Name of Post Method of appointment Head Clerk promotion By from Circle Assistant/ARAs., who opt for promotion as Head Clerk Minimum educational and other qualifications After having qualified Departmental A/Cs, Examination for Ministerial Establishment, If not already done or specially expected Minimum Experience Remarks - Three year’s service as Circle Assistant/ Asst. Revenue Accountant 18. Internal Auditors have been promoted from the Ministerial Cadre i.e. from the post of Circle Assistants/ARAs, who had opted for the post of Internal Auditor were to be allowed the scales in the Ministerial Cadre considering the post of UDC as induction post. The posts of Internal Auditors are filled by 55% from direct recruitment and 45% by promotion who have opted for promotion to come to the Revenue Cadre. The mode of appointment and the minimum educational and other qualifications and experience required for the post of Internal Auditor are as under:- Sr. No. 6. Name of Post Method Appointment of Internal Auditor i) By direct appointment (55% vacancies) of ii) By promotion from amongst ARAs/Circle Assistants who opt for Minimum Educational and other qualification B.A. IInd class with Honours in Economics or Statistics Commerce OR B.Com IInd Class OR Intermediate Cost and Minimum Experience Remarks - Three year’s service as Circle Assistant/AR A/UDC put together out of which as 13 promotion as Internal Auditor (45% of vacancies) minimum of one year service shall be as Circle Assistant/ ARA. Works Accountant or Intermediate Chartered Accountant. After having qualified Departmental Accounts Examination for Ministerial Establishment, if not already done or specially exempted. 19. The pay scale prior to 01.08.1963 of Head Clerks was higher than the pay scale of Internal Auditors i.e. pay scale of Head Clerks was Rs.150-300 and pay scale of Internal Auditors was Rs.130-240. The pay scale of Internal Auditors was Rs.130-240 and it was subsequently revised to Rs.150-300 with effect from 01.08.1963 on par with the Head Clerks. The pay scales of Head Clerks and Internal Auditors remained intact upto the year-1986 revision. But the pay scale of Head Clerks was revised from Rs.1640-2925 to Rs.2000-3500 on the recommendation of the Pay Anomaly Committee formed by the Board to review the anomalies in the pay scales of 1986 revision linking the scale of Head Clerks with the Superintendent Grade-II under the State Government. As discussed infra, the pay scale of Internal Auditors was revised from Rs.1640- 2925 to Rs.1800-3200 and after nine years of service to Rs.1880- 3300 i.e. scale of Revenue Accountant and after sixteen years of service Rs.2000-3500 as per Secretary (Finance) Office Order 14 No.244 dated 15.02.1991 considering the post of Internal Auditor as induction post in the basic pay scale of Rs.1800-3200 for direct recruits. 20. Burden of proof on the person claiming parity of pay scale:- Ordinarily, the scale of pay is fixed keeping in view the several factors i.e. (i) method of recruitment; (ii) level at which recruitment is made; (iii) the hierarchy of service in a given cadre; (iv) minimum educational/technical qualifications required; (v) avenues of promotion; (vi) the nature of duties and responsibilities; and (vii) employer’s capacity to pay, etc. 21. It is well settled that for considering the equation of posts and the issue of equivalence of posts, the following factors had been held to be determinative:- (i) The nature and duties of a post; (ii) The responsibilities and powers exercised by the officer holding a post, the extent of territorial or other charge held or responsibilities discharged; (iii) The minimum qualifications, if any, prescribed for recruitment to the post; and (iv) The salary of the post (vide <cite>Union of India and Another v. P.K. Roy and Others AIR 1968 SC 850</cite>). 22. After referring to <cite>P.K. Roy’s case</cite>, this Court, in SAIL, held as under:- “25. In <cite>State of Maharashtra and Another v. Chandrakant Anant Kulkarni and Others (1981) 4 SCC 130</cite> and <cite>Vice-Chancellor, L.N. Mithila University v. Dayanand Jha (1986) 3 SCC 7</cite>, a similar view 15 has been reiterated observing that equal status and nature and responsibilities of the duties attached to the two posts have to be taken into consideration for equivalence of the post. Similar view has been reiterated in <cite>E.P. Royappa v. State of T.N. and Another (1974) 4 SCC 3</cite> and <cite>Sub-Inspector Rooplal and Another v. Lt. Governor Through Chief Secretary, Delhi and Others (2000) 1 SCC 644</cite>, wherein this Court following the earlier judgment in <cite>P.K. Roy AIR 1968 SC 850</cite> held that the salary of the post alone may not be a determining factor, the other three criterion should also be fulfilled.” 23. The burden of proof in establishing parity in pay scales and the nature of duties and responsibilities is on the person claiming such right. The person claiming parity must produce material before the court to prove that the nature of duties and functions are similar and that they are entitled to parity of pay scales. After referring to number of judgments and observing that it is the duty of an employee seeking parity of pay to prove and establish that he had been discriminated against, this Court, in SAIL, held as under:- “22. It is the duty of an employee seeking parity of pay under Article 39(d) of the Constitution of India to prove and establish that he had been discriminated against, as the question of parity has to be decided on consideration of various facts and statutory rules, etc. The doctrine of “equal pay for equal work” as enshrined under Article 39(d) of the Constitution read with Article 14 thereof, cannot be applied in a vacuum. The constitutional scheme postulates equal pay for equal work for those who are equally placed in all respects. The court must consider the factors like the source and mode of recruitment/appointment, the qualifications, the nature of work, the value thereof, responsibilities, reliability, experience, confidentiality, functional need, etc. In other words, the equality clause can be invoked in the matter of pay scales only when there is wholesome/wholesale identity between the holders of two posts. The burden of establishing right and parity in employment is only on the person claiming such right. (<cite>Vide U.P. State Sugar Corpn. Ltd. and Another v. Sant Raj Singh and Others (2006) 9 SCC 82</cite>, <cite>Union of India and Another v. Mahajabeen Akhtar (2008) 1 SCC 368</cite>, <cite>Union of India v. Dineshan K.K (2008) 1 SCC 586</cite>, <cite>Union of India 16 and Others v. Hiranmoy Sen and Others (2008) 1 SCC 630</cite>, <cite>Official Liquidator v. Dayanand and Others (2008) 10 SCC 1</cite>, <cite>U.P. SEB and Another v. Aziz Ahmad (2009) 2 SCC 606</cite> and <cite>State of M.P. and Others v. Ramesh Chandra Bajpai (2009) 13 SCC 635</cite>)”. 24. Nature of duties and responsibilities of Head Clerks are different from the Internal Auditors:- The duties and nature of work of Head Clerks and Internal Auditors are entirely different. Head Clerk works under XEN, Drawing and Disbursement Officer and there is only one Head Clerk in the Division Office. Head Clerk is the Head of the establishment in the Divisional Office and total work of the establishment is under the control of the Head Clerk. The Head Clerk disburses the salaries and other payments of the Sub-divisions and Division Offices and also maintains the leave and other miscellaneous works for the Sub-divisions and the Division Offices and discharges administrative functions and thus, has more responsibilities. Per contra, Internal Auditor works under the control of Chief Auditor. Duty of the Internal Auditor is to audit the billing of the Revenue Department of the Sub-division Office which includes billing of domestic supply to large supply. Internal Auditors work in the Sub-division and there can be one or more Internal Auditors as per quantity of work. 25. It is thus well settled that it is the duty of an employee seeking parity of scale of pay to prove that the educational qualifications 17 required for both the posts, mode of recruitment and the nature of work performed by them are one and the same. There are neither pleadings nor any material produced by the respondents to prove that the nature of work performed by the Internal Auditors is similar with that of the Head Clerks. In the writ petition, respondents have claimed parity of pay scale only on the ground that they were categorised in Group XII along with the Head Clerks. Merely on the ground that the cadre of Internal Auditors are placed in Group XII along with the Head Clerks, cannot be a ground for seeking parity of pay scale. 26. Considering the differences in the nature of duties and responsibilities performed by the Head Clerks and Internal Auditors, Pay Anomaly Committee decided to allow the revised scale for Internal Auditor at Rs.1800-3200 with benefit of promotional increments and Rs.2000-3500 for Head Clerks. Merely because Internal Auditors are categorised in Group XII along with Head Clerks, the Internal Auditors cannot claim parity as the nature of duties and responsibilities of Internal Auditors are different from Head Clerks. 27. Report of the Pay Anomaly Committee:- The Pay Anomaly Committee was constituted by the appellant-Board vide its Office 18 Order No.179/Fin./PRC-1988 dated 22.08.1989 to consider the pay anomalies of various categories of employees in the revised scale of pay w.e.f. 01.01.1986. Considering the post of Internal Auditors, the mode of recruitment (55% from direct recruitment and 45% by promotion from amongst ARAs/Circle Assistants), nature of work and the promotional avenues available to the Internal Auditors, the Pay Anomaly Committee took the view that Internal Auditors be allowed revised scale of pay of Rs.1800-3200. The relevant portion of the report of the Pay Anomaly Committee reads as under:- “Revenue/Accounts Wing: “Presently the posts of Internal Auditors are being filled up with 55% through direct recruitment and 45% by promotion from amongst A.R.As/Circle Assistants. As per promotional channel available for Revenue/Accounts Cadre in the PSEB, A.R.As/Circle Asstt are promoted either as Internal Auditor, Head Clerk or Head Office Asst. as per option available for them. Internal Auditors get promotion as Revenue Accountant and then finally as Revenue Supdt. On accounts side, A.R.As/Circle Asstt., after passing SAS Part-I Examination, may at their option, get promotion as Divisional Accountant. He can, however, opt immediately after passing the SAS Part-I Examination to come over as Revenue Accountants (which option shall be final). The Divisional Accountants get promotion as SAS Accountant which post is to be handled by SAS Parts-I & II passed personnels and involves higher duties and responsibilities. Since the Punjab Govt. has allowed revised scale of Rs.1800-3200 for Circle Assistants and Rs.2000-3500 for S.A.S. Acctts. The 19 Committee felt it necessary to devise promotional scale of I.A.s R.As and Revenue Suptt. between the revised scale allowed to Circle Assistants (Rs.1800-3200) and SAS Accountants (Rs.2000-3500). It has, therefore been decided by the Committee to allow the revised scale as under:- Internal Auditor Rs.1800-3200 with benefit of promotional increment(s) being higher post than that of Circle Asstt./Assistant Revenue Accountant as Circle Asst./Assistant Revenue Accountants will get promotion as Internal Auditor in the same scale. 28. Considering the Pay Anomaly Committee Report 08/1990, appellant-Board revised the existing scale of pay of Internal Auditors from Rs.1640-2925 to Rs.1800-3200 with the benefit of promotional increment to Circle Assistants/ARAs on their promotion to the post of Internal Auditors. By the same order, the existing scale of pay of the post of Head Clerks was revised from Rs.1640-2925 to Rs.2000-3500. 29. Considering the grievances of its employees, second Pay Anomaly Committee was constituted vide Office Order No.48/ENG- 30(25) by the appellant-Board. PSEB Employees Federation raised the grievance about the disparity in the pay scale of Head Clerks and Internal Auditors. Considering the grievances, Pay Anomaly Committee took the view that having regard to the nature of duties and responsibilities attached to the posts and skill involved in the 20 performance of the job, the nature of duties of Head Clerks and the Internal Auditors and the promotional avenues available to them are entirely different and that there is no parity of the categories of Revenue Accountants/Divisional Accountants and Internal Auditors with the Head Clerks and that they cannot claim parity. The relevant portion of the report of Second Pay Anomaly Committee reads as under:- “4.1 The Committee has reviewed the position with regard to the agenda put up to the Pay Anomaly Committee by the Secretary Pay Revision Committee and nature of duties of each category of employees, qualifications prescribed and time-bound scales allowed to direct recruitees where the recruitment through direct recruitment or its recommendations/observation as under:- by qualifying D.A.E. and make etc. in improvement the scale of i) The Pay Anomaly Committee has already considered the representations of the employees and did not recommend any Divisional Accountant/Revenue Accountant and Internal Auditor, that there is no parity of these categories with Head Clerk as their nature of duties are different, promotional channel is different and the induction posts has been made for directly recruited 55% Internal Auditors and Revenue Accountants who have been deployed as Revenue Acctt; after they have passed SAS Part-I Examination. The Head Clerk is a promotional post/category and they are genially promoted after putting a long service of about twenty-five years in the Ministerial Cadre from the post of LDC/UDC, Circle Asstt;/A.R.A. etc. whereas the Divisional Accountants are posted when they qualify the D.A.E. of SAS Part-I. The Divisional 21 Accountants have also been allowed time-bound scales which is not available to the post of Head Clerk. ii) On the promotion from Circle Asstt;/ARA to the post of H.O. Assistant & Internal Auditor in the same scale of Rs.1800-3200, benefit of promotional increments is available. iii) ……… iv) In the Ministerial Cadre, the H.O. Cadre or amongst the Circle Asstt;/ARA who opt for the post of H.O. Assistant. The post of Head Clerk is filled up amongst the Circle Asstt;/ARAs who opt for the post of Head Clerk. The post of Internal Auditor is filled up 55% by direct recruitment and 45% amongst Circle Asstt;/ARAs was opt for the post of Internal Auditors. v) The scale of H.O. Assistant and Head Clerks have been revised on the pattern of Punjab Govt; and these categories are traditionally linked with the State Govt; whereas the categories of Internal Auditors, Revenue Acctt; Divisional Accountants are exclusively PSEB categories. vi) Nature of duties of the Head Clerk and the Internal Auditor/H.O. Assistant are not identical. So the Pay Anomaly Committee separated the scales considering the nature of duties and promotional channels etc; 5.1 The Committee is of the view that the option may be given to the employees who have been promoted between 01.01.1986 to 03.10.1990 (the date of office order vide which scale of Head Clerk revised) as H.O. Assistant & Internal Auditor for the post of Head Clerk, provided some vacancies are available in the cadre of Head Clerk. Till the vacancy is falling due, they will be H.O. Assistant or Internal Auditor, as the case may be, but on the appointment as Head Clerk they will be given the seniority as would have been if he would have exercised their option as Head Clerk in the first instance on promotion from Circle Asstt;/ARA. The financial implication would be nominal. 22 5.2 The Committee recommends that the scales already allowed by the Board on the recommendation of Pay Revision Committee and further improved on the recommendation of Pay Anomaly Committee may not be further improved otherwise this would create number of complications, demand from other categories for further revision of their pay scales also. The cases filed by the Divisional Accountant & Internal Auditors in the Punjab & Haryana High Court be defended by the Board on the basis of record and regulations of the Board….. [Underlining added].” 30. Internal Auditors cannot claim parity:- Grievance of the respondents is that there was a parity of pay scale of the posts of Internal Auditors and Head Clerks for about two decades and while so, the order dated 03.10.1990 revising the pay scale of Head Clerks from Rs.1640-2925 to Rs.2000-3500 has disturbed the long- standing parity of pay scales of the posts of Head Clerks and the Internal Auditors. It is their contention that where the employer has been maintaining parity in the pay scales of two posts over a period of time then, if the pay scale of one post is revised, the said parity of pay scale is to be maintained and disturbing such parity would be arbitrary and violative of the Article 14 and Article 16 of the Constitution of India. 31. Though the above arguments of the respondents appear to be attractive, when considered in the light of the well settled principles, we find no merit in the contention. Equation of posts and revision of 23 pay scale is within the domain of the Government. The matter should be left to the discretion and expertise of the Pay Committee and the Government to take the decision on the scale of pay/revision of pay scale by considering the nature of duties and responsibilities. As pointed out earlier, the Pay Anomaly Committee has given elaborate reasons for revising the pay scales of the Head Clerks at Rs.2000-3500 and Internal Auditors at Rs.1800-3200. The conclusion arrived at by the experts/Pay Anomaly Committee are not susceptible to judicial review and the courts are not to interfere with the decision of the Government which is based on the opinion of the experts. 32. Conscious exercise of option to go as Internal Auditors:- On behalf of the appellant-Board, the learned Senior counsel has drawn our attention to the various promotional avenues available to the Internal Auditors and the sharp rise in the scale of pay in such promotional position. The Circle Assistants had been asked to exercise their option to go in the channel of promotion of Head Clerks or in the channel of Internal Auditors. Those who have chosen the channel of Internal Auditors post on 03.10.1990 have consciously chosen to exercise the option of Internal Auditors being mindful of the fact that the pay scale of the Head Clerks is higher 24 than that of Internal Auditors; yet they have chosen to exercise the option of Internal Auditors. Those who have exercised their option for the post of Internal Auditors post on 03.10.1990, in our considered view, cannot make a grievance about their revised scale of pay at Rs.1800-3200 which is not on par with the Head Clerks. 33. Likewise, the Internal Auditors who have been directly recruited as Internal Auditors, have consciously applied for the post of Internal Auditors in the scale of pay of Rs.1800-3200, cannot raise a plea claiming parity of pay scale as that of the Head Clerks, since they have been directly recruited as per advertisement against the post of Internal Auditors. 34. The grievance of the respondents is that since the order dated 03.10.1990 has been given retrospective effect w.e.f. 01.01.1986, those of them who have exercised their option as Internal Auditors between 01.01.1986 to 03.10.1990 are deprived of the parity of pay scale. It was further submitted that had such a disparity of pay scale between the Head Clerks and the Internal Auditors was in force from the year 1986 onwards, the Circle Assistants/ARAs would not have exercised their option for promotion as Internal Auditors and they might have chosen to exercise their option for promotion as Head Clerks. This contention though appears to be attractive, by 25 consideration of the same, it lacks merit for more than one reason. As rightly submitted by the learned Senior counsel for the appellant- Board, exercise of option for promotion as Internal Auditor was a “conscious option”. Further, it was always open to the appellant- Board to revise the scale of pay in terms of Regulation 3(g) of the Punjab State Electricity Board (Revised Pay) Regulations, 1988. 35. That apart, while recommending the different pay scales for Head Clerks and Internal Auditors, the Pay Anomaly Committee was conscious about those Circle Assistants/ARAs who have already exercised their option for promotion as Head Clerks between 01.01.1986 to 03.10.1990. The Pay Anomaly Committee in para (5.1) of its report expressed its view that the option may be given to the employees who have been promoted between 01.01.1986 to 03.10.1990 as Head Clerks and Internal Auditors for the post of Head Clerk, provided some vacancies are available in the cadre of Head Clerk. The Pay Anomaly Committee has also expressed its view that once they are appointed as Head Clerks, they will be given the seniority as would have been if they would have exercised their option as Head Clerks in the first instance on promotion from Circle Assistants/ARAs. The grievance of the respondents in this 26 regard has been taken note by the Pay Anomaly Committee and as per its view in para (5.1), the same is redressed. 36. Promotional avenues available to the Internal Auditors:- Promotional channels which are available against the post of Head Clerk, Internal Auditor and Senior Assistant are as under:- Head Clerk Circle Superintendent Internal Auditor 1) Revenue Accountant Senior Assistant 1)Superintendent Grade II 2)Superintendent Grade I 3) Under Secretary 4) Dy. Secretary 2)Revenue Superintendent 3) Accounts Officer* 4) Deputy Chief Accounts Officer* 5) Chief Accounts Officer* *Subject to passing of SAS Part II Examination and Part I By perusal of the above, it is seen that the promotional avenues which are available to all the Internal Auditors are far more in comparison to the promotional avenues which are available to the Head Clerks. Therefore, for this reason also, option of Internal Auditors which has been exercised by the Internal Auditors was a “conscious option” exercised by them because of more promotional avenues may available in the channel of Internal Auditors. 37. That apart, the pay scales which are available in the promotional channel for Internal Auditors are also sharply higher than the Head Clerks. A Head Clerk on promotion to a Circle Superintendent receives one additional increment above the scale 27 of Rs.10900- 34800 plus grade pay of Rs.5450 (i.e. available to a Head Clerk). However, in the Internal Auditors channel, further promotion as Accounts Officer will be in the pay scale of Rs.16650- 39100 plus grade pay of Rs.5800. Thereafter, on promotion as Deputy Chief Accounts Officer, he receives one further increment and the grade pay increases to Rs.8500. Thereafter, on further promotion as Chief Accounts Officer, he goes into the scale of Rs.41300-67000 plus grade pay of Rs.9600. Two senior-most Chief Accounts Officers are put in the scale equivalent to Chief Engineer i.e. Rs.41300-67000 plus grade pay of Rs.10500. From submission of the appellant-Board, we find that the increase in the pay scale is much higher on promotion against the post in the Internal Auditor promotional channel. Thus, for the said reason also, the choice of Internal Auditors made by all the persons (including those who have exercised the option between 01.01.1986 to 03.10.1990) is a reasoned choice keeping in view the greater promotional avenues and the higher pay scales which are available. 38. It is also relevant to note that insofar as the direct recruits are concerned, the direct recruited Internal Auditors are entitled to a time-bound promotional scale on completion of nine and sixteen years of service. Time-bound promotional scale of directly recruited 28 Internal Auditors after regular service of nine years is Rs.1900-3300 (unrevised) and after completion of sixteen years of service is Rs.2000-3500 (unrevised). However, no such time-bound promotional scale is available to Head Clerks. Head Clerks are not directly recruited and their appointment as Head Clerk is by promotion only. 39. The only ground urged by respondents-Internal Auditors is that parity of pay scale between the Head Clerks and the Internal Auditors was maintained by the appellant-Board for more than two decades and while so, disturbing the parity is arbitrary and illegal. The Court has to keep in mind that a mere difference in service conditions, does not amount to discrimination. Unless there is complete identity between the two posts, they should not be treated as equivalent to claim parity of pay scale. No doubt, Internal Auditors were earlier placed in the same group namely Group XII; but educational qualifications for the post of Head Clerk and mode of recruitment are different. As submitted by the learned Senior Counsel for the appellant-Board, that in the year 1980, there were only four posts in Group XII but subsequently some posts were added to Group XII and the total fourteen posts which were added to Group XII are:- Punjabi Teacher, Drawing Teacher, Hindi Teacher, D.P.Ed. Teacher, Master/Mistress, Science Teacher, Security 29 Inspector, Modeller Divisional Head Draftsman, Prosecuting Inspector (now Law Officer), Law Officer Grade II, Medical Assistant, Librarian and Fire Officer, etc. For all these posts, source and mode of recruitment, qualifications and nature of work are entirely different. If the contention of the Internal Auditors for claiming parity of pay scale with that of Head Clerks merely on the ground that the post of Internal Auditor was placed in Group XII, then if such parity of pay scale may have to be extended to all other posts, it would have huge financial implication on the finance of the Board which is a service-oriented institution owing to the consumers. As held in <cite>Union of India and Another v. Manik Lal Banerjee (2006) 9 SCC 643</cite>, “it is now a well settled principle of law that financial implication is a relevant factor for accepting the revision of pay.” 40. The learned Single Judge proceeded under the erroneous footing as if the case of Internal Auditors is covered by the case put forth by Sub Fire Officers. The learned Single Judge did not keep in view the counter statement filed by the appellant-Board before the High Court pointing out various distinguishing features of Internal Auditors and Head Clerks on account of which no parity could be granted to the Internal Auditors with the Head Clerks. The High 30 Court also did not keep in view that the Pay Anomaly Committee did consider the demand of Internal Auditors and had not accepted the demand in view of different nature of duties and various other relevant factors. The learned Single Judge erred in recording that the respondents were in the same category of “Sub Fire Officers” within the same group which have been decided by the earlier judgment dated 21.01.2010. 41. As discussed earlier, merely because various different posts have been categorized under Group XII, they cannot claim parity of pay scale as that of the Head Clerk. All the more so, when the Internal Auditors are appointed 55% by direct recruitment and 45% by promotion from Circle Assistant/Assistant Revenue Accountant. The High Court did not keep in view that the duties, nature of work and promotion channel of Head Clerks and Internal Auditors are entirely different and that option to seek promotion apparently as Internal Auditors was the “conscious exercise of option”, the impugned judgment cannot be sustained and is liable to be set aside. 42. In the result, the impugned judgment dated 23.02.2012 passed by the High Court of Punjab and Haryana at Chandigarh in LPA No.264 of 2012 and Order dated 04.05.2012 in the review 31 petition are set aside and these appeals are allowed. No costs.

1. Feeling   aggrieved   and   dissatisfied   with   the   impugned judgment and order dated 02.03.2021 passed by the High Court of Telangana at Hyderabad in Criminal Petition No. 1148/2021, by which, the High Court has allowed the said bail application and  has  granted  the anticipatory bail in favour   of   respondent   No.   1   herein   and   has   directed   to release him on bail in the event of his arrest in connection with F. No. ECIR/HYZO/36/2020 dated 15.12.2020 on the file   of   the   Assistant   Director,   Enforcement   Directorate (hereinafter referred to as the ED), Government of India, 1 Hyderabad, which was registered for the offence of money laundering   under   Section   3   of   the   Prevention   of   Money Laundering Act, 2002 (hereinafter referred to as the Act, 2002) and punishable under Section 4 of the said Act, the Directorate   of   Enforcement   has   preferred   the   present appeal.       2. A FIR was registered by Economic Offences Wing (EOW), Bhopal vide FIR No. 12/2019 dated 10.04.2019 wherein 20 persons/companies were named as suspected in the said scam.   M/s   Max   Mantena   Micro   JV,   Hyderabad   was   one among them.  2.1 As   per   the   FIR,   the   Government   of   Madhya   Pradesh   e­ Procurement   Portal   was   being   run   by   MPSEDC.   M/s Antares   Systems   Limited,   Bangalore   and   M/s   Tata Consultancy Services (TCS) were given the contract for the period of 5 years for the maintenance & operation of the said portal. Some of the officials of MPSEDC in collusion with   the   companies   entrusted   with   maintenance   and testing of the portals namely M/s Osmo IT Solutions and M/s Antares Systems Ltd, illegally accessed the e­Tender 2 portal and rigged the bidding process to suit a few private bidders for huge amounts of bribe considerations.   2.2 As   per   the   investigating   agency,   the   preliminary investigation   by   the   Police   established   that   various   e­ tenders   were   illegally   accessed   and   bids   of   a   few companies were manipulated to illegally make the bids of those concerns as the lowest one.  2.3 Apart   from   tenders   mentioned   in   the   first   preliminary charge sheet filed by the EOW Bhopal namely No. 91, 93, 94 (Water Resource Dept); 2 tenders vide Nos. 49985 & 49982   of   PWD;   Tender   no   49813,   Tender   No.   786   of MPRDC;   and   Tenders   vide   Nos.   10030   &   10044,   it  was suspected   that   many   other   tenders   have   also   been tampered using the same modus operandi. M/s Mantena Group of Companies, Hyderabad, was suspected to be a major beneficiary of this e­tender scam. As per the EOW charge sheet, a joint venture of the Mantena Group known as M/s Max Mantena Micro JV is the direct beneficiary of a tampered e­tender No. 10030 worth Rs. 1020 Crore. 2.4 According   to   the   investigating   agency,   the   investigation into  the  said   FIR  for  the   offences  under  Sections  120B, 3 420, 471 IPC and Section 7 r/w Section 13(2) of Prevention of Corruption (PC) Act is going on and the said offences are scheduled   offences   under   the   Act,   2002.   The   ED   has initiated   money   laundering   investigation   in   File   No. ECIR/HYZO/36/2020.  According to the ED, in order to gather evidence, a search 2.5 operation was conducted under the provisions of Section 17(1)   of   PMLA,   2002.   Accordingly,   18   premises   were searched   including   the   residences   of   the   promoters   and offices   of   M/s   Mantena   Constructions   Ltd,   M/s   Anteras Pvt Ltd, M/s Osmo IT Solutions Pvt Ltd, M/s Arni Infra, etc. a good amount of incriminating documents and digital devices   have   been   seized   and   are   being   examined   for evidence. It is clear from the ED investigation done so far that   a   systematic   conspiracy   has   been   planned   and executed by a number of infrastructure companies based at Hyderabad in collusion with a few Government officials and IT management companies to illegally win e­tenders. Further large amounts of bribes running into crore(s) of rupees have exchanged hands using hawala channels. The public funds meant for development activities have been 4 diverted and siphoned off for personal illegal enrichment and   for   making   illegal   bribe   payments.   The   appellant department   has   recovered   fund   trail   evidence   and generation of black money through bogus and over­billing by the infra companies. 2.6 That respondent No. 1 herein who at the relevant time was the   Additional   Chief   Secretary   in   the   Water   Resources Department   in   the   State   of   Madhya   Pradesh,   was summoned by the ED to explain the sudden spurt in the allocation of tenders to M/s Mantena Construction during his stint in the State of MP.  2.7 That apprehending his arrest in connection with ED case for the scheduled offence under the Act, 2002, respondent No. 1 herein approached the High Court by way of present anticipatory   bail   application   under   Section   438   Cr.PC. Without   considering   the   rigour/bar   under   Section   45   of the Act, 2002 and observing that as per the decision of this Court in the case of <cite>Nikesh Tarachand Shah Vs. Unoin of India   and   Anr.;   (2018)   11   SCC   1</cite>,   the   provisions   of Section 45 of the Act, 2002 do not apply to Section 438 Cr.PC   proceedings,   the   High   Court   has   allowed   the 5 anticipatory bail application and has directed that in case of his arrest in connection with ED case he be released on bail.  2.8 Feeling   aggrieved   and   dissatisfied   with   the   impugned judgment   and   order   passed   by   the   High   Court   granting anticipatory   bail   to   respondent   No.   1   in   ED   case,   the Directorate of Enforcement (ED) has preferred the present appeal.  3. Shri K. M. Nataraj, learned ASG, appearing on behalf of the ED – appellant has vehemently submitted that in the facts and   circumstances   of   the   case,   the   High   Court   has committed a very serious error in allowing the anticipatory bail   application   and   granting   anticipatory   bail   to respondent No. 1 in connection with ED case under the Act, 2002.  3.1 It is submitted that as such the High Court has materially erred in observing that the provisions of Section 45 of the Act,   2002   shall   not   be   applicable   to   Section   438   Cr.PC proceedings. It is submitted that for that the High Court has erred in relying upon the decision of this Court in the case of  Nikesh Tarachand Shah (supra). It is submitted 6 that   subsequently   in   the   case   of  <cite>The   Asst.   Director Enforcement Directorate Vs. Dr. V.C. Mohan (2022 SCC OnLine SC 452) ­ (Criminal Appeal No. 21/2022)</cite>,  this Court   has   clarified   that   it   is   the   wrong   reading   of   the decision in the case of  <cite>Nikesh Tarachand Shah (supra)</cite> that the provisions of Section 45 of the Act, 2002 shall not be   applicable   to   the   anticipatory   bail   proceedings.   It   is submitted that in the case of <cite>Dr. V.C. Mohan (supra)</cite> it is specifically observed and held by this Court that Section 45 of the Act, 2002 shall be applicable with respect to the offences under the Act, 2002 and the rigour of Section 45 of   the   Act,   2002   shall   get   triggered   –   although   the application is under Section 438 of Cr.PC. It is submitted that therefore, the impugned judgment and order passed by the High Court is just contrary to the decision of this Court in the case of <cite>Dr. V.C. Mohan (supra)</cite>.  3.2 It is further submitted by Shri K.M. Nataraj, learned ASG appearing on behalf of the ED that even otherwise while granting   the   anticipatory   bail   the   High   Court   has   not properly appreciated and/or considered the seriousness of 7 the offences which are scheduled offences under the Act, 2002. It is submitted that the High Court has considered the anticipatory bail application, as if, the High Court was dealing with the prayer for anticipatory bail in connection with the ordinary offences under IPC.  3.3 It   is   further   vehemently   submitted   by   learned   ASG   that during investigation, the ED investigation has established that there is a nexus between Srinivas Raju Mantena and respondent   No.   1   herein   and   the   same   needs   to   be investigated in detail.  3.4 It is submitted that the ED had gathered material which indicates   nexus   between   respondent   No.   1   and   Srinivas Raju   Mantena,   who   is   found   to   have   committed   the offences   of   money   laundering.   It   is   submitted   that respondent   No.   1   was   summoned   by   ED   but   instead   of appearing before the IO, he filed a criminal petition before the   High   Court   and   obtained   the   interim   relief.   It   is submitted   that   he   appeared   before   the   ED   and   his statement was recorded under Section 50 of the Act, 2002. It is submitted that however on both the occasions he was 8 totally   evasive   and   non­cooperative   and   therefore,   his custodial interrogation is required.  3.5 It   is   further   submitted   by   learned   ASG   that   during   the investigation the ED has found that respondent No. 1 had availed and enjoyed free trips in last one year alone on the luxury   plane   of   Mantena   on   multiple   occasions.   It   is submitted that during investigation it has been found that respondent No. 1 had also availed other patronages from Srinivas   Raju   Mantena   like   sponsoring   foreign   exchange through Hawala Channels for his son.  3.6 It   is   submitted   that   while   granting   anticipatory   bail   to respondent No. 1 the High Court has not considered the nature of allegations and seriousness of offences alleged against   respondent   No.   1   who   at   the   relevant   time   was working as an Additional Chief Secretary.  3.7 Making   the   above   submissions   and   relying   upon   above decision as well as the decision of this Court in the case of <cite>P.   Chidambaram   Vs.   Directorate   of   Enforcement; (2019) 9 SCC 24</cite> as well as the decision in the case of <cite>Y.S. Jagan Mohan Reddy Vs. CBI; (2013) 7 SCC 439</cite>, it is 9 prayed   to   allow   the   present   appeal   and   quash   and   set aside   the   impugned   judgment   and   order   passed   by   the High Court.  4. Present   appeal   is   vehemently   opposed   by   Shri   Vijay Agarwal,   learned   counsel   appearing   on   behalf   of respondent No. 1 herein.  4.1 It is vehemently submitted by learned counsel appearing on   behalf   of   respondent   No.   1   that   in   the   facts   and circumstances   of   the   case   the   High   Court   has   not committed   any   error   in   granting   anticipatory   bail   to respondent No. 1.  4.2 It is vehemently submitted that in the present case so far as the main FIR is concerned, the other accused have been acquitted/discharged. It is submitted that as held by this Court in the catena of decision that if the person is finally discharged/acquitted   of   the   scheduled   offence   or   the criminal   case   against   him   is   quashed   by   the   Court   of competent jurisdiction, there can be no offence of money­ laundering against him or any one claiming such property being   the   property   linked   to   stated   scheduled   offence through him.  10 4.3 It   is   further   submitted   that   in   the   present   case   even respondent   No.   1   was   not   named   in   the   FIR   for   the scheduled offence(s).  4.4 It is further submitted that the offence under the Act, 2002 is dependent on predicate offence which would be ordinary law including the provisions of the IPC. It submitted that therefore,   as   other   accused   persons   have   been acquitted/discharged   for   the   predicate   offence/schedule offence there is no question of any offence by respondent No. 1 under the Act, 2002/money laundering.   4.5 It is  further submitted by learned counsel  appearing  on behalf   of   respondent   No.   1   that   while   granting   the anticipatory bail the High Court has followed the decision of   this   Court   in   the   case   of  <cite>Nikesh   Tarachand   Shah (supra)</cite>, the law which was prevalent at the relevant time.  4.6 It is submitted that the prospective overruling of the said decision   by   this   Court   in   the   case   of  <cite>Dr.   V.C.   Mohan (supra)</cite>  therefore,   cannot   be   pressed   into   service   while challenging the impugned judgment and order passed by 11 the High Court granting anticipatory bail relying upon the decision/law prevalent at the relevant time.  4.7 It is  further submitted by learned counsel  appearing  on behalf of respondent No. 1 that in the present case cogent reasons have been given by the High Court while granting anticipatory bail to respondent No. 1 and considering the fact   that   respondent   No.   1   has   cooperated   in   the investigation and appeared twice earlier before the IO/ED, the   impugned   judgment   and   order   passed   by   the   High Court granting anticipatory bail may not be interfered with by this Court.  We have heard learned counsel appearing on behalf of the 5. respective parties at length. At the outset, it is required to be noted that respondent No. 1 is apprehending his arrest in connection with the complaint/case by the ED for the offence   of   money   laundering   under   Section   3   of   the Prevention of Money Laundering Act, 2002 and punishable under Section 4 of the said Act. An enquiry/investigation is going   on   against   respondent   No.   1   for   the   scheduled offence   in   connection   with   FIR   No.   12/2019.   Once   the enquiry/investigation against respondent No. 1 is going on 12 for the offence under the Act, 2002, the rigour of Section 45 of the Act, 2002 would be attracted. Section 45 of the Act, 2002 reads as under: ­  “45. Offences to be cognizable and non­bailable.— (1) [Notwithstanding anything contained in the Code of Criminal   Procedure,   1973   (2   of   1974),   no   person accused of an offence [under this Act] shall be released on bail or on his own bond unless—] (i)   the   Public   Prosecutor   has   been   given   an opportunity to oppose the application for such release; and (ii)   where   the   Public   Prosecutor   opposes   the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail: Provided that a person, who, is under the age of sixteen years, or is a woman or is sick or infirm [or is accused   either   on   his   own   or   along   with   other   co­ accused of money­laundering a sum of less than one crore rupees], may be released on bail, if the Special Court so directs: Provided further that the Special Court shall not take   cognizance   of   any   offence   punishable   under Section 4 except upon a complaint in writing made by — (i) the Director; or (ii)   any   officer   of   the   Central   Government   or   a State   Government   authorised   in   writing   in   this behalf by the Central Government by a general or special   order   made   in   this   behalf   by   that Government. [(1­A) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or any 13 other   provision   of   this   Act,   no   police   officer   shall investigate   into   an   offence   under   this   Act   unless specifically authorised, by the Central Government by a   general   or   special   order,   and,   subject   to   such conditions as may be prescribed.] (2) The limitation on granting of bail specified in [* *   *]   sub­section   (1)   is   in   addition   to   the   limitations under   the   Code   of   Criminal   Procedure,   1973   (2   of 1974) or any other law for the time being in force on granting of bail.” 5.1 By   the   impugned   judgment   and   order,   while   granting anticipatory   bail   the   High   Court   has   observed   that   the provisions   of   Section   45   of   the   Act,   2002   shall   not   be applicable   with   respect   to   the   anticipatory   bail applications/proceedings   under   Section   438   Cr.PC.   For which the High Court has relied upon the decision of this Court in the case of  <cite>Nikesh Tarachand Shah (supra)</cite>.  In the   case   of  <cite>Dr.   V.C.   Mohan   (supra)</cite>,  this   Court   has specifically   observed   and   held   that   it   is   the   wrong understanding that in the case of <cite>Nikesh Tarachand Shah (supra)</cite> this Court has held that the rigour of Section 45 of the   Act,   2002   shall  not   be   applicable   to   the   application under Section 438 Cr. PC. In the case of <cite>Dr. V.C. Mohan (supra)</cite>  in which the decision of this Court in the case of 14 <cite>Nikesh Tarachand Shah (supra)</cite> was pressed into service, it is specifically observed by this Court that it is one thing to say that Section 45 of the Act, 2002 to offences under the   ordinary   law   would   not   get   attracted   but   once   the prayer   for   anticipatory   bail   is   made   in   connection   with offence under the Act, 2002, the underlying principles and rigours   of   Section   45   of   the   Act,   must   get   triggered   – although   the   application   is   under   Section   438   Cr.PC. Therefore, the observations made by the High Court that the provisions of Section 45 of the Act, 2002 shall not be applicable in connection with an application under Section 438 Cr.PC is just contrary to the decision in the case of <cite>Dr. V.C. Mohan (supra)</cite> and the same is on misunderstanding of the observations made in the case of <cite>Nikesh Tarachand Shah (supra)</cite>. Once the rigour under Section 45 of the Act, 2002   shall   be   applicable   the   impugned   judgment   and order passed by the High Court granting anticipatory bail to respondent No. 1 is unsustainable.  6. Even   otherwise   on   merits   also,   the   impugned   judgment and order passed by the High Court granting anticipatory 15 bail to respondent No. 1 is erroneous and unsustainable. While granting the anticipatory bail to respondent No. 1 the High   Court   has   not   at   all   considered   the   nature   of allegations   and   seriousness   of   the   offences   alleged   of money laundering and the offence(s) under the Act, 2002. Looking to the nature of allegations, it can be said that the same can be said to be very serious allegations of money laundering   which   are   required   to   be   investigated thoroughly.   As   per   the   investigating   agency,   they   have collected   some   material   connecting   respondent   No.   1 having   taken   undue   advantage   from   Srinivas   Raju Mantena. From the impugned judgment and order passed by   the   High   Court,   it   appears   that   the   High   Court   has considered the matter, as if, it was dealing with the prayer for anticipatory bail in connection with the ordinary offence under IPC.  6.1 Now so far as the submissions on behalf of respondent No. 1 that respondent No. 1 was not named in the FIR with respect   to   the   scheduled   offence   and   that   the   other accused   are   discharged/acquitted   is   concerned,   merely because   other   accused   are   acquitted,   it   cannot   be   a 16 ground   not   to   continue   the   investigation   against respondent   No.   1.   An   enquiry/investigation   is   going   on against   respondent   No.   1   with   respect   to   the   scheduled offences.   Therefore,   the   enquiry/investigation   itself   is sufficient at this stage.  6.2 While granting the anticipatory bail, what is weighed with the High Court and what is observed by the High Court is as under: ­ “A careful reading of the aforesaid legal position and in the light of the circumstances of the case on hand, which clearly   indicates   that   the   1st  respondent   has   a   doubt regarding the involvement of the petitioner in commission of the crime and he is being summoned for disclosure and in   case   of   his   non­disclosure   of   any   material,   on   the pretext   of   non­co­operation,   the   1st  respondent   may proceed to arrest him. The petitioner is a retired employee aged   about   60   years   and   is   a   permanent   resident   of Hyderabad, Further, major part of the investigation has been   completed   with   respect   to   the   incriminating documents and digital devices, which have already been seized. Hence, there may not be a chance of tampering with   the   investigation   at   this   stage,   because   as   rightly pointed   out   by   the   learned   Senior   Counsel   for   the petitioner   that   a   criminal   case   has   already   been   filed against the other accused and the same is pending before the Special Court at Bhopal.” 6.3 From the aforesaid, it can be seen that the High Court has not   at   all   considered   the   nature   of   allegations   and   the seriousness of the offences alleged against respondent No. 1.   As   per   the   catena   of   decision   of   this   Court,   more particularly,   observed   in   the   case   of  <cite>P.   Chidambaram 17 (supra)</cite> in case of economic offences, which are having an impact   on   the   society,   the   Court   must   be   very   slow   in exercising the discretion under Section 438 of Cr.PC.  7. Considering the overall facts and circumstances of the case and the reasoning given by the High Court and as observed hereinabove, the rigour of Section 45 of the Act, 2002 shall be applicable even with respect to the  application under Section 438 Cr.PC and therefore, the impugned judgment and order passed by the High Court granting anticipatory bail to respondent No. 1 herein in connection with F. No. ECIR/HYZO/36/2020 dated 15.12.2020 is unsustainable. Consequently, the  impugned  judgment  and order passed by the High Court granting anticipatory bail to respondent No. 1 is hereby quashed and set aside. Respondent No. 1 be   dealt   with   in   accordance   with   law.   However,   it   is observed   and   made   clear   that   after   respondent   No.   1   is arrested, if he files any regular bail application, the same be   considered   in   accordance   with   law   and   on   its   own merits   and   considering   the   material   collected   during 18 enquiry/investigation   of   the   case.   Present   appeal   is accordingly allowed. No costs.                  

1. Delay condoned in Special leave Petition (Civil) @ D.No.10656 of 2023. 2. While the first special leave petition arises out of an order passed by the Division Bench of the Madras High Court in an intra- court appeal challenging an order passed by the learned Judge in a contempt petition, the other special leave petitions arise out of the order passed substantially in a writ petition and in a review petition. 2 3. We have heard Shri Mukul Rohatgi, learned senior counsel appearing for the petitioners in all the special leave petitions and Shri Mahesh Jethmalani, Shri Guru Krishna Kumar, Dr. Menaka Guruswamy, learned senior counsel appearing for the respondent. 4. The brief facts sufficient for the disposal of all these special leave petitions are as follows:- (i) A batch of 49 writ petitions were filed by the office bearers of the Rashtriya Swayam Sevak Sangh (RSS), on the file of the High Court of Judicature at Madras seeking a direction to the State, the Director General of Police, the Superintendents of Police of various districts and the Inspectors of Police of certain police stations to permit the members of the Organisation to conduct a procession (Route March) through identified places. The contention of the writ petitioners was that they wanted to hold the procession on 02.10.2022, but that their applications for permission to hold the Route March were not considered by the appropriate authorities; (ii) The batch of writ petitions were disposed of by a learned Judge of the Madras High Court, by an order dated 22.09.2022, with certain directions; (iii) The State filed a batch of applications for review. At about the same time, one of the representations seeking permission to hold the march in Chennai was rejected by 3 the local Inspector of Police, by an order dated 27.09.2022; (iv) The order of rejection led to a legal notice dated 28.09.2022 followed by a Contempt Petition, against, (i) The Secretary to Government, Home Department; (ii) The Director General of Police; (iii) The Superintendent of Police; and (iv) The Inspector of Police; (v) When the contempt petition came up for hearing on 30.09.2022, the date on which the organisers wanted to conduct the Route March was only 48 hours away. Therefore, the learned Judge before whom the contempt petition came up, passed an order on 30.09.2022 to the following effect:- “5. Hence, the respondents justified the reasons for rejecting the request made by the petitioners. Therefore, it is not possible for the respondents to grant permission for the procession to be held on 02.10.2022. However, this Court suggested for any other date except Gandhi Jayanthi i.e. 02.10.2022 to conduct procession and to conduct public meeting. 16.10.2022, 6. The learned Senior Counsels appearing for the petitioners suggested four dates i.e. 09.10.2022, 06.11.2022 and 13.11.2022 and the learned Senior Counsel appearing for the first respondent submitted that except Gandhi Jayanthi on 02.10.2022, they will consider the same representations of the respective petitioners seeking permission to conduct procession and to conduct public meetings on any other date. 7. Considering the above submissions made on either side, this Court fix the date to conduct procession and to conduct public meetings on 4 06.11.2022. Till then, the petitioners are directed not to precipitate the issue. However, it is for the State to maintain law and order problem. It is made clear that the respondents shall permit the petitioners on their earlier representations to conduct procession and to conduct public meetings on 06.11.2022. 8. Registry is directed to list the matter along with all the connected contempt petitions numbered subsequently on 31.10.2022” (vi) Pursuant to the aforesaid order dated 30.09.2022, the Director General of Police issued a memorandum dated 29.10.2022 instructing Commissioners/Superintendents of Police of the Districts to pass necessary orders on the representations of the organisers; (vii) In the light of the memorandum issued by The Director General of Police on 29.10.2022, the learned Judge before whom the contempt petitions came up on 31.10.2022, passed an order to the following effect:- “The learned Senior Counsel appearing for the petitioner produced the order passed by the second respondent viz., the Director General of Police, dated 29.10.2022, thereby directing all the Commissioner of Police/Superintendent of Police, to pass order on the applications made by the respective petitioners in accordance with the order passed by this Court dated 22.09.2022 in W.P.No.24540 of 2022 etc., batch. Accordingly all the applications submitted by the petitioners are under consideration of the respective Commissioner of Police/Superintendent of Police and they are about to pass orders within a day or two. 2. Post the matter on 02.11.2022 under the caption “for reporting compliance” at 2.15 p.m. (viii) On 02.11.2022, the Staff Officer in the Office of the Director General of Police filed a status report claiming 5 that in view of certain developments that took place after a cylinder blast in Coimbatore City on 23.10.2022, a fresh assessment of the local situation had to be made by the Commissioners/Superintendents of Police. In short, the status report indicated that, (i) it is not advisable to permit any processions/public meetings in 24 locations; (ii) that processions/public meetings can be permitted in 23 locations only in enclosed ground/premises; and (iii) procession can be permitted in three locations; (ix) Incidentally, the contempt petitions as well as the applications for review were listed before the learned Judge on the very same date namely 02.11.2022. The learned Judge passed two independent orders, one in the batch of contempt petitions and another in the batch of review applications; (x) The relevant portion of the order passed in the review applications reads as follows:- “3. Today when the matters are taken up for hearing, the learned State Public Prosecutor appearing for the petitioners submitted that out of 50 places, in three places, the respective respondents were granted permission to conduct procession and public meeting on 06.11.2022. Insofar as 23 places are concerned, respective respondents are permitted to conduct procession/public meeting in an indoor place. Insofar as 24 places are concerned, respective authorities found that there will be a law and order issue and rejected the requests in view of the intelligence report received from the authorities concerned. He further submitted that the respective respondents also approached this Court by way of Contempt Petitions and same are pending before this Court. 4. In view of the various orders passed by the authorities concerned, nothing survive in these Review 6 Applications. Accordingly, all the Review Applications are closed. Consequently, the connected miscellaneous petitions are also closed. (xi) But in the batch of contempt petitions, the learned Judge passed an order adjourning the contempt petitions to 04.11.2022, for passing appropriate orders after perusing the Intelligence Report produced by the State in a sealed cover; (xii) On 04.11.2022 the learned Judge passed final orders in the contempt petitions, virtually modifying the original order passed on 22.09.2022. The operative portion of the Order passed on 04.11.2022 passed in the batch of contempt petitions reads as follows: “9. Therefore, this Court is inclined to grant permission to conduct procession and public meeting on 06.11.2022 on the following conditions:- i. The procession and public meetings should be conducted in a compounded premises such as Ground or Stadium. It is made clear that while proceeding to conduct procession and public meeting, the participants shall go by walk or by their respective vehicles without causing any hindrance to the general public and traffic. During the program, nobody shall either sing ii. songs or speak ill on any individuals, any caste, religion, etc., iii. Those who participate in the program shall not for any reason talk or express anything in favour of organizations banned by Government of India. They should also not indulge in any act disturbing the sovereignty and integrity of our country. The program should be conducted without iv. causing any hindrance to public or traffic. The participants shall not bring any stick, lathi v. or weapon that may cause injury to any one. 7 The organizer(s) vi. shall make adequate arrangements for drinking water and proper First Aid/Ambulance/Mobile Toilets/CCTV Cameras/Fire Fighting equipments etc., in consultation with the Police/Civic/Local Bodies as directed by the police. keep sufficient vii. The organizer(s) volunteers to help the police for regulation of traffic and the participants. shall viii. Only box type speakers should be used and output of the speakers should not exceed 15 watts~ad within a radius of 30 meters only. Cone Speakers should not be used at any cost. ix. In the procession, the processionists shall not by any manner offend the sentiments of any religious, linguistics, cultural and other groups. x. An undertaking to reimburse the cost for any damage that may occur enroute to any public/private property and an undertaking to bear the compensation/replacement costs as well, if are to be awarded to any other institution/person, who may apply for the same. xi. If there is violation of any one of the conditions imposed, the concerned police officer is at liberty to take necessary action, as per law.” (xiii) Aggrieved by the order so passed by the learned Judge on 04.11.2022 in the batch of contempt petitions, a batch of intra-court appeals were filed by the organizers. These intra-court appeals were allowed by a Division Bench of the High Court by an order dated 10.02.2023. The operative portion of the order of the Division Bench reads as follows:- “33. In the result, the order dated 04.11.2022 passed in the contempt petitions, which is under challange in the present LPAs, is set aside, and the order dated 22.09.2022 passed in the writ petitions stand restored and would be enforceable. As the dates on which the appellants 8 wanted to conduct the route-march, have passed, it is only appropriate that a direction be issued in this regard. Accordingly, the appellants are directed to approach the State authorities with three different dates of their choice for the purpose of holding the route-march/peaceful procession and the State authorities are directed to grant permission to the appellants on one of the chosen dates out of the three. The organization shall ensure that strict discipline is followed at their end and that there is no provocation or incitement on their part. The State on the other hand has to take adequate safety measures and make traffic arrangements to ensure that the procession and the meeting shall go on peacefully.” (xiv) Challenging the order of the Division Bench passed in the intra-court appeals arising out of the order passed in the contempt petitions, the Secretary to Government, Home Department, the Director General of Police, the Commissioner of Police and the Inspector of Police first came up with a special leave petition in Special Leave Petition (C) No.4163 of 2023. When this special leave petition came up for orders as to admission on 03.03.2023, it was submitted by Shri Mukul Rohatgi, learned senior counsel and Shri V. Krishnamurthy, learned AAG for the State of Tamil Nadu that the State would come up with some suggestions as to how best to resolve the issue. Therefore, Special Leave Petition (C) No.4163 of 2023 was adjourned to 17.03.2023. (xv) Subsequently, the State filed the other special leave petitions challenging the earliest order of the learned Judge of the High Court dated 22.09.2022 passed in the batch of writ petitions as well as the order dated 9 02.11.2022 passed by the learned Judge in the batch of review applications. (xvi) Thus we have on hand, three special leave petitions, the first one arising out of the last order, namely, that of the Division Bench of the High Court dated 10.02.2023 and the other two special leave petitions arising out of the earlier orders of the learned Single Judge dated 22.09.2022 and 02.11.2022. 5. Insofar as the first special leave petition is concerned, it arises out of the order of the Division Bench passed in a batch of intra- court appeals challenging the order passed by the learned Judge in a batch of contempt petitions. This Court need not even go into several aspects argued across the Bar, for the simple reason that the learned Judge travelled beyond the scope of a contempt petition and this is why the said order warranted interference by the Division Bench. After having disposed of the batch of main writ petitions by a final order dated 22.09.2022 in a particular manner and after having dismissed the batch of review applications on 02.11.2022, the learned Judge could not have modified his original order dated 22.09.2022 in a batch of contempt petitions on 04.11.2022. Therefore, the Division Bench of the High Court was justified in interfering with the order of the learned Judge. On this 10 short ground, Special Leave Petition (C) No.4163 of 2023 deserves to be dismissed. 6. Coming to the other special leave petitions, the same arise out of the original order passed by the learned Judge on 22.09.2022 in the batch of writ petitions and the order dated 02.11.2022 passed in the batch of review applications. A perusal of the order of the learned Judge shows that the learned Judge considered the scope of Sections 41 and 41A of the Chennai City Police Act, 1888 and Section 30 of the Police Act, 1861, to come to the conclusion that the reliefs sought in the writ petitions deserved to be granted subject to certain conditions. The operative portion of the order dated 22.09.2022 reads as follows: “11. In view of the above order passed by the Hon'ble Supreme Court of India as well as various orders passed by this Court, it would be appropriate to direct the respondents to grant permission to conduct procession and to conduct public meeting on 02.10.2022 at various places subject to the following conditions on or before 28.09.2022:- i. ii. During the program, nobody shall either sign songs or speak ill on any individuals, any caste, religion, etc., Those who participate in the program shall not for any reason talk or express anything in favour of organizations banned by Government of India. They should also not indulge in any act disturbing the sovereignty and integrity of our country. 11 iii. iv. v. vi. The program should be conducted without causing any hindrance to public or traffic. The participants shall not bring any stick, lathi or weapon that may cause injury to any one. First The organizer(s) shall make adequate arrangements for drinking water and proper Aid/Ambulance/Mobile Toilets/CCTV Cameras/ Fire Fighting equipments etc., in consultation with the Police/Civic/Local Bodies as directed by the police. The procession shall proceed in any orderly manner along the sanctioned route keeping to the left and shall not halt on the way or cause impediment to the normal flow of traffic. The procession shall occupy only one-fourth of the road. vii. The organizer(s) shall keep sufficient volunteers to help the police for regulation of traffic and the participants. viii. The organizer(s) of procession/rally shall be responsible for ensuring that the route permitted to them by the Police Authorities is strictly followed. Only box type speakers should be used and output of the speakers should not exceed 15 watts ad within a radius of 30 meters only. Cone Speakers should not be used at any cost. ix. x. xi. In the procession, the processionists shall not any manner offend the sentiments of any religious, linguistics, cultural and other groups. An undertaking to reimburse the cost for any damage that may occur enroute to any property and an public/private undertaking the compensation/replacement costs as well, if bear to 12 are to be awarded to any other institution/person, who may apply for the same. xii. If there is violation of any one of the conditions imposed, the concerned police officer is at liberty to take necessary action, as per law.” 7. The learned Judge not only interpreted the relevant provisions of the law correctly but also imposed necessary conditions. This is why the learned Judge could not review his own order. 8. It is to be noted that the learned Judge in fact followed several similar orders passed by the other Judges of the same High Court including one of us (V. Ramasubramanian, J. as he then was at the Madras High Court) in the past. 9. As rightly contended by all the learned senior counsel on the side of the respondent, the main objection raised by the State before the High Court was that after the imposition of a ban order on another organization, law and order problems cropped up in certain places and that the same led to several cases being registered. The details of those cases are actually furnished in the memorandum of grounds of special leave petition(s). We do not wish to extract in this order, the Chart provided by the State in Ground No.BB of Special Leave Petition (C) No.4163 of 2023, on account of its sensitivities. But the Chart provided by the State Government shows that the 13 members of the respondent organization were the victims in many of those cases and that they were not the perpetrators. Therefore, it is not possible for us to find fault with the order passed by the learned Judge either in the main writ petitions or in the review applications. Hence all the special leave petitions are liable to be dismissed. 10. The Special Leave Petitions are accordingly dismissed. No costs. Pending application(s), if any, shall stand disposed of.

Heard Mr. Mukul Rohatgi, learned senior counsel appearing for the petitioner and Mr. K.K. Venugopal, learned senior counsel appearing for respondent no.3. 3. Only short issue involved in these appeals is with regard to interpretation of the directions issued by this Court by its order dated 7th November, 2006 in I.A. Nos.2-5 & 8 in Special Leave Petition (C) No.10281 of 2006. It is submitted by Mr. Mukul Rohatgi, learned senior counsel appearing for the appellant that the order passed by the High Court of Bombay in Writ Petition Nos.1589/2007, 1075/2007 and 1036/2007 on 17th of September, 2009 is contrary to the directions issued by this Court in the aforesaid order dated 7th November, 2006. In order to appreciate the submissions made by Mr. Rohatgi, it would be necessary to reproduce the directions issued by this Court in the order dated 7th November, 2006 and the directions issued by the High Court in the impugned order dated 17th of September, 2009. On 7th November, 2006, this Court inter alia directed as follows: “As directed by the order in Writ Petition No.988 of 2004 dated 11.03.2005 and order dated 04.05.2006 in Writ Petition No.1277 of 2006 the SRA is directed to call the two developers, namely M/s. Keya and M/s. Sigtia and dispose of their application for issuing the Letter of Intent and to pass appropriate orders and in accordance with Maharashtra, Slum Areas Improvement, Clearance and RE-development Act, 1971 and also strictly following the procedure for submission processing and approval of Slum Rehabilitation Scheme and to Award the Letter of intent to the developer who satisfies the required qualifications and conditions and regulations and the provision of the Act, 1971.” 4. Whereas in the impugned order dated 17th September, 2009, the High Court has directed as follows: “In our opinion, the impugned order is liable to be quashed and set aside. Accordingly, the impugned order is quashed and set aside. Matter is remanded to the SRA. The SRA to decide the proposal of M/s. Sigtia Developers in terms of the order dated March 11, 2005 passed in Writ Petition No.988 of 2004 as also the order dated May 4, 2006 passed by this Court in Writ Petition No.1277 of 2006, and the order dated November 7, 2006 passed by the Apex Court in SLP No.10281 of 2006, and on the basis of the record as it stands today, as expeditiously as possible, and in any case within a period of three months from today. All contentions of the parties are expressly kept open. The SRA will consider the contentions of the parties and will record reasons and give findings. While considering the proposal of M/s. Sigtia Developers, the SRA will consider the objections of M/s. Keya Developers, as also of the Society, Mr. Jagtap & Others and Mr. Mane. If the SRA decides not to issue LOI in favour of M/s. Sigtia Developers, it will be open for the parties to submit fresh development Scheme as observed by this Court in paragraph no.20 of the judgment and order dated March 11, 2005 in Writ Petition No.988 of 2004. Rule is made absolute in all the Petitions.” 5. Perusal of the above would show that the order passed by the High Court makes a significant departure from the directions issued by this Court. It appears to give impression that the SRA is to decide only the proposal of M/s. Sigtia Developers, whilst taking into consideration the objection of M/s. Keya Developers. We are of the considered opinion that by order dated 7th November, 2006, this Court had very clearly directed the SRA to consider the proposals of M/s. Sigtia Developers and M/s. Keya Developers. The applications of both the Developers for issuance of a Letter of Intent are to be considered by SRA in accordance with the Maharashtra, Slum Areas Improvement, Clearance and RE-development Act, 1971. In other words, the SRA is required to consider the claim of both the Developers in accordance with law. Mr. Rohatgi had taken serious objections to the observations made by the High Court in paragraph 30 of the impugned order, where it is observed as follows: “It is thus clear that the first issue that the SRA was to consider is whether M/s. Sigtia is entitled to issuance of Letter of intent. No doubt as per the order of the Supreme Court M/s. Keya Developers will also have to be heard on that issue, but there is no question of the issue whether M/s. Keya Developers is entitled to Letter of Intent being considered unless and until the SRA comes to the conclusion that M/s. Sigtia is not entitled to get the Letter of Intent. In other words, the SRA will have to first hear the parties on the issue whether M/s. Sigtia is entitled to Letter of Intent. If the SRA comes to the conclusion that M/s. Sigtia is entitled to Letter of Intent, then that will be the end of the matter, and the order of this Court and the order of the Supreme Court will stand complied with. However, in case the SRA comes to the conclusion that M/s. Sigtia is not entitled to issuance of Letter of Intent then it will have to take up the issue whether M/s. Keya Developers is entitled to issuance of Letter of Intent for consideration. The application of M/s. Sigtia will have to be heard and considered first, and it is only thereafter depending on the result of that application, that the application of M/s. Keya Developers can be considered, assuming that M/s. Keya Developers has made any such application because we have recorded a finding above that no complete application submitted by M/s. Keya Developers is on the original record. No doubt, while considering the question whether M/s. Sigtia is entitled to issuance of Letter of Intent, the question whether the agreement in favour of M/s. Sigtia has been validly terminated or not will have to be considered.” 6. These observations certainly tend to give the impression that M/s. Keya Developers is to be considered, only in case the Letter of intent is not issued in favour of M/s. Sigtia Developers. Thus, in our opinion, it is necessary to reiterate the directions issued by this Court in the order dated 7th November, 2006, which clearly directed the SRA to call the two Developers and dispose of their applications for issuance of the Letter of Intent and pass the appropriate order in accordance with law. It was further directed that the SRA shall strictly follow the procedure for submission processing and approval of Slum Rehabilitation Scheme. Further direction was also issued to award the Letter of Intent to the Developer who satisfies the required qualifications and conditions. We are informed that the time granted by the High Court, in the order dated 17th September 2009, to SRA for taking a decision has now expired. We, therefore, direct that the SRA shall now take a decision within 15 days, from today. 7. The impugned order passed by the High Court is modified to the extent indicated above and the appeals are disposed of accordingly with no order as to costs.

1. This   Writ   petition   filed   in   the   public   interest under   Article   32   of   the   Constitution   of   India   seeks direction to forthwith ban on spraying of all kinds of disinfectants   on   human   beings   which   is   being     done supposedly  for   protecting   the   human   beings   from   the Novel Coronavirus disease 2019(Covid­19).  2. The   World   Health   Organisation(WHO)   declared   novel coronavirus   disease,   2019   (hereinafter   referred   to   as 2 Covid­19)   as   a   Pandemic   on   11.03.2020.   All   countries including India after spread of the pandemic had taken and are still taking different measures to contain the disease   and   protect   its   citizens   from   Covid­19.   On 29.03.2020,   Ministry   of   Health   and   Family   Welfare, Government   of   India,   released   guidelines   on disinfection of common Public places including Offices. The   scope   as   contained   in   the   guidelines   is   to   the following effect: ­ "Scope:   This   document   aims   to   provide interim   guidance   about   the   environmental cleaning/decontamination   of   common   public places   including   offices   in   areas reporting COVID­19. Coronavirus Disease 2019(COVID­19) is an acute   respiratory   disease   caused   by   a novel Cornavirus (SARS­CoV­2), transmitted in   most   instances   through   respiratory droplets,   direct   contact   with   cases   and also contaminated surfaces/objects.   Though   the   virus survives   on   environmental   surfaces   for varied   period   of   time,   it   gets   easily inactivated by chemical disinfectants...” through     3. On   18.04.2020,   Director   General   of   Health   Services (EMR Division), Ministry of Health and Family Welfare, issued an advisory against spraying of disinfectants on 3 people   for   Covid­19   arrangements.   Even   though   in   the above advisory, spraying of individuals or groups was not recommended, several bodies, organizations started using spraying tunnels to disinfect the human body. The press   release   dated   23.4.2020   was   issued   by   National Capital   Laboratory(Council   for   Scientific   and Industrial Research) which was joint press release by CSIR­NCL Pune­ICT Mumbai, stating that the use of mist based sanitization is expected to provide safeguard to front­line   health   care   professionals   including paramedical   staff,   police   and   employees   providing essential   services.   Other   public   organizations   also started   using   the   walk   way   spray   tunnels,   and   other measures   for   disinfecting   humans   at   various   public places.  4. This writ petition under Article 32 has been filed on 05.06.2020 praying for following reliefs: ­ "i. Issue a writ in the nature of Mandamus or   any   other   appropriate   writ,   direction or   order   a   forthwith   ban   on   the   usage, installation, production, advertisement of disinfection tunnels involving spraying or fumigation   of   chemical   disinfectants   for 4 the   purposes   disinfecting   human   being and/or ii. Issue a writ in the nature of Mandamus or   any   other   appropriate   writ,   direction or   order   a   forthwith   ban   on   usage, installation, production, advertisement of disinfection tunnels involving spraying or fumigation   of   organic   disinfectants   for the   purposes   disinfecting   human   beings and/or iii.   Issue   a   writ   in   the   nature   of Mandamus   or   any   other   appropriate   writ, direction or order a forthwith ban on the usage, production, advertisement   of   disinfection   tunnels exposing human beings to ultraviolet rays for the purposes disinfecting them and/or installation,     iv. To pass such other orders and further orders   as   may   be   deemed   necessary   on   the facts   and   in   the   circumstances   of   the case” 5. The petitioner in the writ petition referred to and relied   the   advisory   dated   18.04.2020   and   has   also referred   to   press   release   dated   23.04.2020   issued   by CSIR­NCL,Pune­ICT,Mumbai,   where   tunnels   for   external body   surface   sanitization   of   personal   walk   was recommended.  6. The petitioner's case in the writ petition is that 5 although   the   Ministry   of   Health   and   Family   Welfare, Government   of   India,   has   not   approved   the   use   of   any self   claimed   organic   or   ayurvedic   disinfectant   for spraying   or   fumigation   purposes   nor   approved   any chemical   disinfectants   on   human   body   but   lot   of organizations/public   authorities   are   using   chemical disinfectants   for   spraying   and   fumigation.   Several instances   in   the   writ   petition   of   public   authorities installing   disinfecting   tunnel   has   been   given   in   the writ petition.  7. Publication from World Health Organization has also been   relied   where   it   is   clearly   stated   that   spraying and introducing bleach or other disinfectant into body will not protect against Covid­19 and can be dangerous. Quoting World Health Organization, it is pleaded that the   Ultraviolet   (UV   Lamps)   should   not   be   used   to disinfect   the   hands   and   other   areas   of   the   skin. Reference has also been made of advanced disinfectant tunnel   developed   jointly   by   Indian   Institute   of Technology,   Kanpur   and   Artificial   Limb   Manufacturing 6 Corporation of India. Articles questioning against the use of disinfectant 8. tunnels   have   also   been   referred   to   and   relied   by   the petitioner.   Certain   materials   where   different   experts have   recommended   use   of   UV   light   and   disinfectant tunnel has also been referred to. sIn view of several discordant   note   expressed   by   certain   experts   and organizations, the writ petition prayed for directions as quoted above.  9. This   Court   issue   notice   to   respondent   Nos.   1­3   on 10.08.2020.   No   notice   having   been   issued   to   the respondent Nos.4 to 6, they be deleted from the array of the parties. The respondent No.1 has filed a counter affidavit   dated   01.09.2020   where   advisory   dated 18.04.2020   as   well   as   minutes   of   meeting   dated 09.06.2020   held   under   the   chairmanship   of   Director General Health Services, with regard to review on use of   disinfection   tunnel   using   various   chemicals   and spraying disinfectants have been brought on the record. Taking note of the meeting proceeding dated 09.06.200 where spraying disinfectant was not recommended by the minutes,   This   Court   passed   following   order   on 07.09.2020: ­  7 "  ORDER          A counter affidavit has been filed on behalf   of   Union   of   India.   In   the   counter affidavit   at   page   40   copy   of   meeting   ­ Annexure   'G'   dated   09.06.2020   has   been brought   on   the   record,   where   it   has   been decided that spraying disinfectants is not recommended.   Shri   Tushar   Mehta,   learned Solicitor   General   submits   that   relevant directions   and   circulars   shall   be   issued to all concerned.         As   prayed   by   Shri   Tushar   Mehta, learned Solicitor General, list after two weeks.” 10. After the aforesaid order, another affidavit titled as   'Compliance   affidavit   dated   28.09.2020'   by respondent   No.1   where   O.M.   dated   23.09.2020   has   been brought   on   the   record   reiterating   that   spraying   of individuals   or   groups   with   disinfectant   using   any modality is not recommended and hence, all States/Union Territories are directed to ensure that such practices are not implemented in the States/UTs.  11. An   additional   affidavit   has   also   been   filed   by 8 respondent No.1 with regard to use of Ultraviolet (UV) rays   to   disinfect/sterilize   edible   items   like   fruits and vegetables. Petitioner has also filed consolidated rejoinder   affidavit.   An   intervention   application   has also   been   filed   by   one   Ideal   Flow   Pvt.   Ltd.   which claims to be a company which has developed and designed pressurized   steam   disinfectant   chamber.   The   applicant submits that in designed pressurized steam disinfectant chamber,   natural   oils   are   mixed   in   an   emulsifier solution. Applicant claims that the product has various health benefits. Applicant further submitted that there is   a   major   difference   between   disinfectant   tunnels spraying   chemical   disinfectant   and   pressurized disinfection chamber, any blanket ban as sought in the writ petition may seriously impact the business of the applicant,   in   light   of   the   major   difference   of   the applicant's   product   from   that   of   disinfection   tunnel mentioned in the writ petition. 12. We   have   heard   the   petitioner   appearing   in   person, Shri   Tushar   Mehta,   learned   Solicitor   General   for   the respondents and Smt. Anita Shenoy, Senior Advocate for the intervenor. 9 13. The petitioner submits that although the Ministry of Health & Family Welfare, the respondents No.1 through its advisory dated 18.04.2020 had stated that spraying of disinfectant on human being is not recommended but Union   of   India   has   not   taken   any   step   to   stop   use, advertisement   and   sale   of   chemical   based   disinfection tunnels. The petitioner submits that there is no study anywhere   in   the   world   by   any   credible   health   agency which   states   that   human   disinfection   tunnels   are effective   against   Covid­19   virus.   On   the   contrary, there   are   sufficient   health   advisories   by   the   WHO, respondent   No.1   and   other   international   agency   that tunnels   are   counter   productive   and   harmful   for   human health. There has been no advisory issued by respondent No.1     which   recommends   usage   of   any   organic   solution for spraying on human body against Covid­19 pandemic.  14. The   petitioner   submits   that   in   absence   of   any recommendation of health authorities, there is a trend 10 across   the   Country   where   people   are   producing   self­ certified   so   called   safe   disinfection   tunnels   with variety   of   organic   solutions.   The   petitioner   submits that the concept of “human disinfection” through walk in   tunnel   is   flawed   and   misconceived   and   be   not permitted at any cost in light of Right to Health under Article 21 of the Constitution.  15. Shri   Tushar   Mehta,   learned   Solicitor   General, submits that answering respondent No.1 had not issued any   advisory   for   usage,   installation,   production, advertisement of disinfection tunnel involving spraying or   fumigation   of   chemicals/organic   disinfectants   for the   purpose   of   disinfecting   human   beings.   Learned Solicitor   General   has   referred   to   advisory   dated 18.04.2020   issued   by   respondent   No.1.   It   is   further submitted that in the meeting held on 09.06.2020 under the   Chairmanship   of   Director   General   Health   Services, review   on   use   of   disinfection   tunnel   was   made   and   it was   reiterated   that   spraying   disinfectant   is   not recommended   in   both   health   care   and   non­health   care 11 settings. Shri Mehta submits that the States/UTs have to   implement   the   guidelines   dated   18.04.2020   and   the role of the Government of India is limited to providing necessary guidelines and financial support.  16. Learned   counsel   for   the   intervenor   has   submitted that   the   product   which   is   being   designed   by   the applicant   does   not   use   any   chemical   as   human disinfectant rather it uses natural oil which promotes health.   The   applicant   opposes   any   blanket   ban   on   the use of such products for human disinfection.  17. We have considered the submission of learned counsel for the parties and perused the record.  18. The writ petition raises following three questions:­ I)   Whether   spraying   or   fumigation   of   any   kind   of chemical   disinfectants   on   human   beings   without   the approval   of   the   relevant   ministry   is   violative   of Article 21? II) Whether spraying or fumigation of any kind of self­ claimed   organic   disinfectant   on   human   beings   without the approval of the relevant Ministry is violative of 12 Article 21? III)   Whether   exposure   of   human   beings   to   artificial ultraviolet rays is violative of Article 21? All the above questions being inter­connected are being taken together.  19. Article   21   of   the   Constitution   provides   for protection of life and personal liberty. The expression 'life'   used   in   Article   21   has   wide   import   and connotation. Article 21 encompasses a bundle of rights which   have   been   recognized   from   time   to   time   by   the legislature of this Country and Courts of this Country including this Court. Right to life as recognized under Article   21   is   Right   to   live   with   dignity.     Right   to health   is   also   recognized   as   an   important   facet   of Article   21   of   the   Constitution.   We   may   refer   to pronouncement   of   this   Court   in  <cite>Devika   Biswas   versus 13 Union   of   India   and   others,   (2016)   10   SCC   726</cite>,  where this   Court   held   that   Right   to   Health   is   an   integral facet   of   Right   guaranteed   under   Article   21   of   the Constitution.   In   paragraph   107   of   this   Court   dealing with Right to Health laid down following: ­ "107.  It   is   well   established   that   the right   to   life   under   Article   21   of   the Constitution includes the right to lead a dignified   and   meaningful   life   and   the right   to   health   is   an   integral   facet   of this   right.   In   <cite>CESC   Ltd.   v.   Subhash Chandra   Bose</cite>   dealing   with   the   right   to health   of   workers,   it   was   noted   that   the right   to   health   must   be   considered   an aspect   of   social   justice   informed   by   not only   Article   21   of   the   Constitution,   but also   the   Directive   Principles   of   State Policy   and   international   covenants   to which   India   is   a   party.   Similarly,   the bare   minimum   obligations   of   the   State   to ensure   the   preservation   of   the   right   to life and health were enunciated in <cite>Paschim banga   Khet   Mazdoor   Samity   vs.   State   of W.B.</cite>” 20. In   the   present   case,   Right   to   Health   under consideration   is   in   wake   of   pandemic   Covid­19.   The provisions of Disaster Management Act, 2005(hereinafter referred   to   as   Act,   2005)   has   been   invoked   to   combat Covid­19   by   different   authorities   constituted   under Act,   2005.   Covid­19   is   a   notified   disaster   for   the purposes of the Act, 2005 by the Government of India.   14 21. The Act, 2005, is an act for effective management of disasters   and   matters   connected   therewith   and incidental   thereto.   Disaster   Management   includes prevention   of   danger/threat   of   a   disaster,   mitigation or   reduction   of   risk   of   a   disaster,   preparedness   to deal   with   the   disaster   and   prompt   response   to   any threatening disaster situation or disaster etc.. Under Section   3,   National   Disaster   Management   Authority   is established   for   the   purposes   of   the   Act.   Section   8 provides   for   the   constitution   of   National   Executive Committee. Section 10 deals with powers and function of National   Executive   Committee.   The   National   Executive Committee   is   to   assist   the   National   Authority   in discharge of its functions and have the responsibility for implementing the policies and plans of the National authority and ensure the compliance of the directions issued   by   the   Central   Government   for   the   purposes   of the Central Government. Sub­Section (2) of Section 10 enumerates various powers and functions of the National Executive Committee. Section 10 which is relevant for this case is as follows: ­ 15 "10.   Powers   and   functions   of   National Executive Committee.— (1) The National Executive Committee shall assist   the   National   Authority   in   the discharge   of   its   functions   and   have   the responsibility   for   implementing   the policies   and   plans   of   the   National Authority   and   ensure   the   compliance   of directions   issued   by   the   Central Government   for   the   purpose   of   disaster management in the country.    (2)   Without   prejudice   to   the   generality of the provisions contained in sub­section (1), the National Executive Committee may— (a) act as the coordinating and monitoring body for disaster management; (b)   prepare   the   National   Plan   to   be approved by the National Authority;  (c)   coordinate   and   monitor   the implementation of the National Policy; (d)   lay   down   guidelines   for   preparing disaster   management   plans   by   different Ministries   or   Departments   of   the Government   of   India   and   the   State Authorities;  (e) provide necessary technical assistance to   the   State   Governments   and   the   State Authorities   for   preparing   their   disaster management   plans   in   accordance   with   the guidelines   laid   down   by   the   National 16 Authority; (f)   monitor   the   implementation   of   the National   Plan   and   the   plans   prepared   by the   Ministries   or   Departments   of   the Government of India; (g)   monitor   the   implementation   of   the guidelines   laid   down   by   the   National Authority for integrating of measures for prevention of disasters and mitigation by the   Ministries   or   Departments   in   their development plans and projects;  (h)   monitor,   coordinate   and   give directions   regarding   the   mitigation   and preparedness   measures   to   be   taken   by different   Ministries   or   Departments   and agencies of the Government; (i)   evaluate   the   preparedness   at   all governmental   levels   for   the   purpose   of responding   to   any   threatening   disaster situation or disaster and give directions, where   necessary,   for   enhancing   such preparedness; (j)   plan   and   coordinate   specialised training programme for disaster management for   different   levels   of   officers, employees and voluntary rescue workers;  (k)   coordinate   response   in   the   event   of any   threatening   disaster   situation   or disaster; (l)   lay   down   guidelines   for,   or   give directions to, the concerned Ministries or Departments   of   the   Government   of   India, the   State   Governments   and   the   State Authorities regarding measures to be taken 17 by   them   in   response   to   any   threatening disaster situation or disaster;  (m)   require   any   department   or   agency   of the   Government   to   make   available   to   the National   Authority   or   State   Authorities such   men   or   material   resources   as   are available   with   it   for   the   purposes   of emergency response, rescue and relief; (n)   advise,   assist   and   coordinate   the activities   of   the   Ministries   or Departments   of   the   Government   of   India, State Authorities, statutory bodies, other governmental non­governmental organisations   and   others   engaged   in disaster management; or     (o) provide necessary technical assistance or   give   advice   to   the   State   Authorities and District Authorities for carrying out their functions under this Act; (p)   promote   general   education   and awareness   in   relation   to   disaster management; and  (q)   perform   such   other   functions   as   the National   Authority   may   require   it   to perform. ” 22. The   powers   under   sub­section   (2)   of   Section   10 clauses (i) and (l) of  Act, 2005, have been delegated to Secretary, Ministry of Health and Family Welfare, Government of India, by notification dated 11.03.2020. The Notification dated 11.03.2020 is as follows: ­ 18 " ORDER In exercise of the powers conferred under Section 69 of the Disaster Management Act, 2005, Union home Secretary being Chairman of   the   National   Executive   Committee(NEC) hereby   delegates   its   power   under   clauses (i) and (l) of sub­section (2) of Section 10 of the Disaster Management Act, 2005 to Secretary,   Ministry   of   Health   and   Family Welfare,   Government   of   India   to   enhance the preparedness and containment of novel Coronavirus(COVID­19)   and   the   other ancillary   matters   connected   thereto.   This order   shall   be   deemed   to   have   come   into effect from 17th January, 2020. (Sanjeev Kumar Jindal) Joint Secretary to the  Government of India” 23. Thus   it   is   the   Secretary,   Ministry   of   Health   and Family Welfare, who had to lay down the guidelines or give   directions   to   the   concerned   Ministries   or Departments   of   Government   of   India,   the   State Governments and State Authorities regarding measures to be   taken   by   them   in   response   to   any   disrupting situation or disaster. The Pandemic has threatened the health   of   entire   citizenry   of   the   country   and   all facets relating to pandemic Covid­19, its prevention, mitigation and cure are to be dealt with and taken care of   authorities   empowered   with   different   duties   and functions   under   different   statutes   including   Disaster Management Act, 2005.  19 24. We may first refer to the advisory dated 18.04.2020 which   was   issued   against   spraying   of   disinfectant   on people   for   Covid­19   management.   The   advisory   dated 18.04.2020 states: ­ "Advisory against spraying of disinfectant on people for COVID­19 management     Ministry of Health & Family Welfare has received   many   queries   regarding   the efficacy   (if   any)   of   use   disinfectants such   as   Sodium   hypochlorite   spray   used over   the   individuals   to   disinfect   them. The   strategy   seems   to   have   gained   of   lot of   media   attention   and   is   also   being reportedly used at local levels in certain districts/local bodies.  Purpose of the document  To   examine   the   merit   of   using disinfectants as spray over human body to disinfect   them   from   COVID­19   and   to provide appropriate advisory  Disinfectants  are   chemicals   that   destroy disease causing pathogens or other harmful microorganisms.   It   refers   to   substances applied   on   inanimate   objects   owing   to their strong chemical properties.  20 Chemical disinfectants are recommended for cleaning   and   disinfection   only   of frequently touched areas/surfaces by those who   are   suspected   or   confirmed   to   have COVID­19. Precautionary measures are to be adopted   while   using   disinfectants   for cleaning   –   like   wearing   gloves   during disinfection.  In   view   of   the   above,   the   following advisory is issued: • Spraying of individuals or groups is NOT recommended   under   any   circumstances. Spraying   an   individual   or   group   with chemical   disinfectants   is   physically   and psychologically harmful.  •  Even if a person is potentially exposed with   the   COVID­19   virus,   spraying   the external   part   of   the   body   does   not   kill the virus that has entered your body. Also there is no scientific evidence to suggest that   they   are   effective   even   in disinfecting the outer clothing/body in an effective manner.  •  Spraying of chlorine on individuals can lead   to   irritation   of   eyes   and   skin   and potentially   gastrointestinal   effects   such as   nausea   and   vomiting.   Inhalation   of sodium hypochlorite can lead to irritation of   mucous   membranes   to   the   nose,   throat, respiratory   tract   and   may   also   cause bronchospasm.  • Additionally use of such measures may in fact lead to a false sense of disinfection &   safety   and   actually   hamper   public observance   to   hand   washing   and   social distancing measures.” 21 25. Even   though   the   above   advisory   was   issued   by Directorate General of Health Services not recommending spraying   of   disinfectant   on   people   for   Covid­19 management   but   several   contrary   opinion   have   been expressed   by   other   bodies   and   organisations.   In   this context,   reference   has   been   made   to   the   joint   Press Release   dated   23.04.2020   by   NCL   (CSIR).   The   Press Release dated 23.04.2020 states: ­ "Publication and Science Communication Unit  Press release  April 23, 2020  Safe concentration of disinfectant in walk through spray tunnels and their scientific design  Joint Press Release: CSIR­NCL Pune and ICT Mumbai    Pune      CSIR–National Chemical Laboratory (CSIR­ NCL), various concentrations   of   sodium   hypochlorite   to find   effective   chemical   disinfectants   for the mist sanitization system.  evaluated      The   use   of   mist­based   sanitization   is expected   to   provide   safeguards   to frontline   healthcare   professionals, including   paramedic   staff,   police,   and employees   providing   essential   services. 22 These   people   are   more   likely   to   get   the infection   and   unknowingly   spread   arising from various sources. A lot of advisories have   appeared   against   the   use   of   such tunnels from various agencies, which does not have any scientific basis.     Efficacy   of   sodium   hypochlorite,   also known   as   hypo   or   bleach,   ranging   from 0.02%   to   0.5%   weight   concentration   was studied on personnel walking through mist tunnel   unit,   besides   antibacterial activity   against   standard   microorganisms before   and   after   exposure   in   the   walk through.   Results   indicated   that   0.02%   to 0.05% weight concentration did not show an adverse   effect   on   normal   skin   flora   and yet destroyed the standard microbes. Thus, we   recommend   using   0.02%   ­0.05   wt.   % sodium   hypochlorite   solution   (200   to   500 ppm)   for   external   body   surface sanitization of personnel walk through the mist   tunnel   by   following   standard   safety precautions” 26. The   petitioner   has   also   referred   to   in   the   writ petition various articles where different experts have recommended   for   effective   sanitization   amid   Covid­19 pandemic by disinfection tunnels, different studies for and   against     disinfectment   of   human   body   has   been referred to and relied in the writ petition.  27. After Notice was issued in the petition, the counter 23 affidavit   was   filed.   In   the   Counter   affidavit respondent No.1 has also brought on record the minutes of   the   meeting   dated   09.06.2020   chaired   by   Director General  Health  Services  where review  was  made on  the use of disinfection tunnels. Observations as recorded in the minutes are as follows: ­ "1.Use of disinfection tunnel The matter of spraying of disinfectant on   people   for   COVID­19   management   was discussed   in   the   Joint   Monitoring   Group and   an   advisory   in   this   regard   has   been issued   by   MOHFW/DGHS,   EMR   Division   which is   available   on   the   website   of   the ministry. It clearly states the following: "Spraying of individuals or groups is NOT recommended   under   any   circumstances. Spraying   an   individual   or   group   with chemical   disinfectants   physically   and psychologically harmful. • Even   if   a   person   is   potentially exposed   with   the   Covid­19   virus, spraying the external part of the body does   not   kill   the   virus   that   has entered   your   body.   Also   there   is   no scientific   evidence   to   suggest   that they   are   effective   even   in disinfecting   the   outer   clothing/body in an effective manner.  • Additionally use of such measures may in   fact   lead   to   a   false   sense   of disinfection   and   safety   and   actually hamper   public   observance   to   hand 24 washing   and   social   distancing measures.  It   is   reiterated   that   spraying   of individuals   with   disinfectants   (such   as tunnels,   cabinets,   chambers,   etc.)   is not   recommended.  This   could   be physically   and   psychologically   harmful and   would   not   reduce   an   infected person's   ability   to   spread   the   virus through   droplets   or   contact.   Moreover, spraying   individuals   with   chlorine   and other   toxic   chemicals   could   result   in eye   and   skin   irritation,   bronchospasm due   to   inhalation,   and   gastrointestinal effects such as nausea and vomiting.  2. Use of Chemicals As   per   the   advisory   by   MOHFW/DGHS,   EMR Division: Chemical   disinfectants   are   recommended for   cleaning   and   disinfection   only   of frequently   touched   areas/surfaces   by those who are suspected or confirmed to have   COVID­19.   Precautionary   measures are   to   be   adopted   while   using disinfectants   for   cleaning   –   like wearing gloves during disinfection.  Spraying of chlorine on individuals can lead to irritation of eyes and skin and potentially   gastrointestinal   effects such as nausea and vomiting. Inhalation of   sodium   hypochlorite   can   lead   to irritation   of   mucous   membranes   to   the nose, throat, respiratory tract and may also cause bronchospasm.  The   chemicals   such   as   freshly   prepared 25 1%   sodium   hypochlorite   or   70%   ethanol etc.,   are   to   be   used   as   indicated,   to disinfect   inanimate   surfaces   using mops/wipes   for   the   recommended   contact time.  3. Spraying disinfectants:  not Spraying   disinfectants   is recommended  in both health care and non health care settings.  In indoor spaces, routine application of disinfectants   to   environmental   surfaces by   spraying   or   fogging   (also   known   as fumigation   or   misting)   is   not recommended   for   COVID­19   as   the disinfectants   may   not   be   effective   in removing   organic   material   and   may   miss surfaces   shielded   by   objects,   folded fabrics   or   surfaces   with   intricate designs.   If   disinfectants   are   to   be applied,   this   should   be   done   with   a cloth   or   wipe   that   has   been   soaked   in disinfectant.  Spraying   or   fumigation   of   outdoor spaces, such as streets or marketplaces, is   also   not   recommended   to   kill   the COVID­19   virus   or   other   pathogens because   disinfectant   is   inactivated   by dirt  and debris and it is not feasible to manually clean and remove all organic matter   from   such   spaces.   Moreover, spraying   porous   surfaces,   such   as sidewalks and unpaved walkways, would be even less effective. Even in the absence of organic matter, chemical spraying is unlikely   to   adequately   cover   all surfaces   for   the   duration   of   the required   contact   time   needed   to 26 inactivate   pathogens.   Furthermore, streets and sidewalks are not considered to be reservoirs of infection for COVID­ 19. In addition, spraying disinfectants, even outdoors, can be harmful for human health.  The   committee   referred   to   the   document of   the   World   Health   Organisation   on 'Cleaning   and   disinfection   of environmental surfaces in the context of COVID­19.' 28. It is further relevant to notice that in   paragraph 13   of   the   affidavit   dated   01.09.2020,   following statement has also been made: "13.   It   is   most   respectfully   submitted that   as   public   health   and   hospitals   are State subject, it is for the States/Union Territories   to   implement   the   guidelines issued   by   the   Ministry   of   Health   and Family Welfare and the role of Government of India is limited to providing necessary guidance and financial support. .... ...    ....   ...." 29. From   the   pleadings   brought   on   record   on   behalf   of respondent   No.1,   it   is   clear   that   although   by   the advisory by respondent No.1, spraying of disinfectant on human body is not recommended but respondent No.1 has not taken any further steps in the above context taking any measure either to prevent or regulate the spraying of disinfectant on the human body.  27 30. We   have   noted   above   the   powers   and   functions   of National Executive Committee under Section 10 of the Act,   2005,   which   specifically   empowers   the   National Executive   Committee   to   give   directions   regarding measures   to   be   taken   by   the   concerned   ministry   and departments   of   the   Government,   State   Governments   and State   Authorities   in   response   to   the   threatening situation or disaster.  31. Section   36   of   the   Act,   2005,   expressly   enumerates the responsibilities  of Ministries and departments of the Government of India. Section 36 which is relevant for the case is as follows: ­ "36.   Responsibilities   of   Ministries   or Departments   of   Government   of   India.—It shall   be   the   responsibility   of   every Ministry   or   Department   of   the   Government of India to—  (a) take measures necessary for prevention of disasters, mitigation, preparedness and capacity   building   in   accordance   with   the guidelines   laid   down   by   the   National 28 Authority;  (b)   integrate   into   its   development   plans and projects, the measures for prevention or   mitigation   of   disasters   in   accordance with   the   guidelines   laid   down   by   the National Authority;  (c)   respond   effectively   and   promptly   to any   threatening   disaster   situation   or disaster in accordance with the guidelines of   the   National   Authority   or   the directions   of   the   National   Executive Committee in this behalf;  (d) review the enactments administered by it,   its   policies,   rules   and   regulations, with   a   view   to   incorporate   therein   the provisions   necessary   for   prevention   of disasters, mitigation or preparedness;  (e)   allocate   funds   for   measures   for prevention   of   disaster,   mitigation, capacity­building and preparedness;  (f)   provide   assistance   to   the   National Authority and State Governments for—       up     drawing (i) mitigation, preparedness   and   response   plans, capacity­building,   data   collection and   identification   and   training   of personnel   in   relation   to   disaster management;  (ii)   carrying   out   rescue   and   relief operations in the affected area;  (iii)   assessing   the   damage   from   any disaster;  (iv)   carrying   out   rehabilitation   and 29 reconstruction;  (g)   make   available   its   resources   to   the National   Executive   Committee   or   a   State Executive   Committee   for   the   purposes   of responding promptly and effectively to any threatening   disaster   situation   or disaster, including measures for—  (i) providing emergency communication in a vulnerable or affected area;  (ii)   transporting   personnel   and relief goods to and from the affected area;  (iii)   providing   evacuation,   rescue, temporary   shelter   or   other   immediate relief;  (iv)   setting   up   temporary   bridges, jetties and landing places;  (v)   providing,   drinking   water, essential   provisions,   health   care, and services in an affected area; (h)   take   such   other   actions   as   it   may consider   necessary   for   disaster management. ” 32. When respondent No.1 has issued advisory that use of disinfectant  on  human body  is not recommended and it has been brought into its notice that despite the said advisory,   large   number   of   organizations,   public authorities are using disinfectants on human body, it 30 was   necessary   for   the   respondent   No.1   to   issue necessary   directions   either   to   prevent   such   use   or regulate   such   use   as   per   requirement   to   protect   the health   of   the   people.   The   provisions   of   Disaster Management Act, Section 10, 36 and other provisions are not only provisions of empowerment but also cast a duty on different authorities to act in the best interest of the people to sub­serve the objects of the Act.  33. We   have   extracted   paragraph   13   of   the   Counter Affidavit where  it  has  been  stated  by the respondent No.1 that public health and hospitals, it is for the States/UTs to implement guidelines by the Ministry of Health   and   Family   Welfare   and   role   of   the   Central Government is limited to provide necessary guidelines and financial support.  34. No exception can be taken to the above pleading but the  provisions  of the Act,  2005,  confer  certain  more responsibilities   and   duties   on   the   respondent   No.1 apart   from   issuance   of   guidelines   and   providing 31 financial   support.   The   Act,   2005,   is   special legislation   containing   self­contained   provisions   to deal   with   a   disaster.   The   Pandemic   being   a   disaster within the meaning of Act, 2005, has to be dealt with sternly and effectively.  35. We have no doubt that the Union and the States are taking   all   measures   to   contain   the   pandemic   and   all mitigating steps but the facts which have been brought on record in this writ petition indicate that in the present case, something more was required to be done by respondent No.1 apart from issuing advisory   that use of disinfectant on human body is not recommended. When public   authorities/   organizations   were   using disinfectants both chemical/organic on the human body and there are various studies to the effect that it may be   harmful   to   the   health   and   the   body.   Some   more actions   were   required   to   remove   the   cloud   of uncertainty and to regulate the use even if it was to either   prevent   such   use   or   regulate   the   use   so   that health of citizens is amply protected.  32 36. When   a   statute   confer   power   on   authority   and   that power is to be exercised for the benefit of the people in general, the power is coupled with the duty. This Court   in  <cite>Commissioner   of   Police   versus   Gordhandas Bhanji,   AIR   1952   SC   16</cite>,  speaking   through   Vivian Bose,J.,   had   laid   down   the   off­quoted   preposition   in paragraph 28: ­ "28.   The   discretion   vested   in   the Commissioner   of   Police   under   R.250   has been conferred upon him for public reasons involving   the   convenience,   safety, morality   and   welfare   of   the   public   at large.   An   enabling   power   of   this   kind conferred for public  reasons and  for the public benefit is, in our opinion, coupled with   a   duty   to   exercise   it   when   the circumstances   so   demand.   It   is   a   duty which cannot be shirked or shelved nor it be   evaded,   performance   of   it   can   be compelled under S.45.” 37. This   Court   again   in  <cite>L.Hirday   Narain   versus   income Tax Officer, Bareilly, (1970) 2 SCC 355</cite>, reiterated the same principle in following words: ­ "13....if   a   statute   invests   a   public officer with authority to do an act in a specified   set   of   circumstances,   it   is 33 imperative   upon   him   to   exercise   his authority   in   a   manner   appropriate   to   the case when a party interested and having a right   to   apply   moves   in   that   behalf   and circumstances   for   exercise   of   authority are shown to exist. Even if the words used in   the   statute   are   prima   facie   enabling the   Courts   will   readily   infer   a   duty   to exercise power which is invested in aid of enforcement of a right­public or private­ of a citizen.” 38. Justice V.R. Krishna Iyer had elaborately dealt the above   principle   in  <cite>Municipal   Council,   Ratlam   versus Shri Vardichan and others, (1980) 4 SCC 162</cite>. The above case   was   a   case   where   Municipal   Council   Ratlam   was entrusted with certain duties to the public which was sought to be enforced by the residents through Section 133 Cr.P.C. where Magistrate issued certain directions to   the   Municipal   Corporation   which   came   to   be challenged in this Court. Justice Krishna Iyer quoting Benjamin   Bisraiely,  in   paragraph   9   of   the   judgment stated: ­ "9. ...”All power is a trust – that we are accountable for its exercise – that, from the   people,   and   for   the   people,   all springs,   and   all   must   exist.”   Discretion becomes a duty when the beneficiary brings home   the   circumstances   for   its   benign exercise.”  34 39. With   regard   to   judicial   process,   important observations were made by this Court in the above case that affirmative action taken in the judicial process is   to   make   remedy   effective   failing   which   the   right becomes   sterile.   In   paragraph   16   of   the   judgment, following observations have been made: ­ "16...The   nature   of   the   judicial   process is   not   purely   adjudicatory   nor   is   it functionally   that   of   an   umpire   only. Affirmative   action   to   make   the   remedy effective   is   of   the   essence   of   the   right which otherwise becomes sterile...” 40. Justice Krishna Iyer also laid down that improvement of public health is paramount principle of governance. In paragraph 24, following has been observed: ­ "24.   ...The   State   will   realise   that Article 47 makes it a paramount principle of   governance   that   steps   are   taken   'for the   improvement   of   public   health   as amongst its primary duties'...” 41. An   additional   affidavit   has   been   filed   by   the 35 respondent   No.1   where   details   regarding   use   of Ultraviolet UV rays disinfectant/sterilize edible food items like  fruits and vegetables  has  been quoted. In additional   affidavit,   rules   have   been   relied   namely 'Atomic Energy (Radiation Processing of Food and Allied Product)   Rules,2012',   which   rules   require   that   no person shall operate the facility without obtaining a license    for  radiation  processing of  food and allied products under the Rules. Facility has been defined as radiation   processing   facility   for   food   and   allied product.   There   are   hosts   of   regulatory   measures   of radiation for use of UV rays with regard to food and other articles. We are of the view that for spraying disinfectant   on   human   body,   fumigation   or   use   of   UV rays against the human body, there has to be regulatory regime when respondent No.1 itself is of the view that such  use  is  not  recommended.  The  respondent  No.1  has wide powers and responsibilities under Act, 2005, which could have  been  utilized  to  remedy  the  situation. In event, use of disinfectant on human body is to cause adverse effect on the health of the people, there has to   be   immediate   remedial   action   and   respondent   No.1 cannot   stop   only   by   saying   that   such   use   is   not recommended.  36 42. In view of the foregoing discussion, we are of the view that ends of justice be served in disposing the writ petition by issuing the following directions:­ i)   The   respondent   No.1   may   consider   and   issue necessary directions in exercise of powers vested in it   under   the   Disaster   Management   Act,   2005, regarding   ban/Regulation   on   the   usage   of disinfection   tunnels   involving   spraying   or fumigation of chemical/organic disinfectants for the human beings. or ii)   There   shall   be   similar   consideration   and directions   by   the   respondents   as   indicated     above with regard to exposure of human being to artificial ultraviolet rays. iii) Looking to the health concern of the people in general,   the   aforesaid   exercise   be   completed   by respondent No.1 within a period of one month. 37

1. Feeling   aggrieved   and   dissatisfied   with   the   impugned common judgment and order dated 18.10.2019 passed by the High Court of Punjab and Haryana at Chandigarh in Regular First Appeal (RFA) No. 1100/2013 and other allied first appeals, by which,  the High Court has allowed the said   first   appeals   in   part   preferred   by   the   original   land owners and has enhanced the amount of compensation for the lands acquired at Rs. 2,98,54,720/­ per acre with all 1 2. 2.1 other   statutory   benefits,   the   State   of   Haryana   has preferred the present appeals.  The facts leading to the present appeals in a nutshell are as under: ­ That   approximately   58   acres   of   large   chunk   of   lands situated at village Kherki, Majra came to be acquired for the   public   purpose   under   the   provisions   of   the   Land Acquisition Act, 1894. The land acquisition officer declared the awards. At the instance of the original land owners, references under Section 18 of the Act, 1894 were made. The   reference   court   enhanced   the   compensation   for notification   dated   13.01.2010   to   Rs.   1,56,24,000/­   per acre from Rs. 60 lakhs per acre as awarded by the land acquisition   officer.   The   appeals   preferred   by   the   State against the judgment and award passed by the reference court determining the compensation at Rs. 1,56,24,000/­ came   to   be   dismissed.   However,   by   the   impugned judgment and order taking into consideration the amount of compensation enhanced by the High Court which came to be modified by this Court to Rs. 2,38,00,000/­ per acre with   respect   to   the   lands   acquired   in   the   month   of January, 2008 and granting 12% cumulative increase, the 2 High Court has partly allowed the appeals preferred by the land   owners   and   determined   and   awarded   the compensation at Rs. 2,98,54,720/­ per acre.  2.2 Dissatisfied with the impugned judgment and order passed by   the   High   Court   determining   and   awarding   the compensation   for   the   lands   acquired   vide   notification dated 13.01.2010 at Rs. 2,98,54,720/­ per acre, the State of Haryana has preferred the present appeals.  3. We have heard Shri Nikhil Goel, learned AAG, appearing on   behalf   of   the   State   of   Haryana   and   learned   counsel appearing on behalf of the respective original land owners.  4. Shri Nikhil Goel, learned AAG, appearing on behalf of the State   has   vehemently   submitted   that   while   determining the   compensation   at   Rs.   2,98,54,720/­   per   acre   for   the lands   acquired   vide   notification   dated   13.01.2010,   the High   Court   has   materially   erred   in   taking   into consideration   and/or   relying   upon   the   judgment   of   this Court passed in Civil Appeal Nos. <cite>11814­11864 of 2017 [State of Haryana Vs. Ram Chander (2017 SCC OnLine SC   1869)</cite>]  with   respect   to   the   lands   acquired   vide notification issued in the month of January, 2008.   3 4.1 It is submitted that in the judgment and order passed by this Court in <cite>Civil Appeal Nos. 11814­11864 of 2017</cite>, this Court   has   specifically   observed   and   held   that   the determination of compensation vide the said judgment at Rs.   2,38,00,000/­   per   acre   shall   not   be   treated   as   a precedent in any other case. It is submitted that therefore, while passing the impugned judgment and order the High Court has materially erred in taking into consideration the amount awarded by this Court vide judgment and order passed in <cite>Civil Appeal Nos. 11814­11864 of 2017</cite> at Rs. 2,38,00,000/.  4.2 It is further submitted by Shri Nikhil Goel, learned AAG, appearing on behalf of the State that in the present case the prices of the land were decreasing which was taken note of by this Court.  4.3 It is further submitted that even otherwise considering the fact that with respect to the very village, lands came to be acquired from 2008 onwards and therefore, the prices of the lands were artificially increased. It is submitted that therefore,   the   High   Court   has   materially   erred   in   giving 4 12% rise on Rs. 2,38,00,000/­ per acre which has been awarded for notification dated 25.01.2008. 4.4 Making the above submissions and relying upon the above decision, it is prayed to allow the present appeals.  5. While   opposing   the   present   appeals,   learned   counsel appearing on behalf of the land owners has submitted that once   the   appeals   preferred   by   the   State   were   dismissed and   the   impugned   common   judgment   and   order   was passed in the appeals preferred by the land owners, it is not   open   for   the   State   now   to   challenge   the   impugned common judgment and order passed by the High Court.    5.1 It is further submitted that even otherwise considering the sale instances produced on record right from 09.03.2007 till 31.03.2008 there was increase in prices and therefore, the High Court has not committed any error in granting the enhancement of 12% on Rs. 2,38,00,000/­ per acre. It is submitted that as such no concrete evidence has been laid   down   or   no   contrary   sale   instance   were   placed   on record by the acquiring body showing the decrease in the market value between 2008 and 2010.  5 5.2 Making the above submissions and relying upon the recent decision   of   this   Court   in   the   case   of  <cite>Ramrao   Shankar Tapse   Vs.   Maharashtra   Industrial   Development Corporation and Ors.; (2022) 7 SCC 563</cite>, by which, it was observed that a cumulative increase of 10 to 15% per year in the market value of land may be accepted, it is prayed to dismiss the present appeals.   6. We have heard learned counsel appearing on behalf of the respective   parties   at   length.   We   have   gone   through   the impugned   common   judgment   and   order   passed   by   the High Court and we have also gone through and considered the earlier decision of this Court in the case of <cite>Civil Appeal Nos. 11814­11864 of 2017</cite> by which with respect to the lands   acquired   vide   notification   dated   25.01.2008,   this Court determined the compensation at Rs. 2,38,00,000/­ per acre. In the said judgment and order, this Court has specifically observed that the said judgment may not be treated as a precedent. However, it is required to be noted that   even   on   merits   also,   this   Court   considered   and accepted the sale instances produced on behalf of the land owners   ranging   between   2007   and   2008.   Therefore,   as 6 such   determination   of   the   compensation   at   Rs. 2,38,00,000/­ per acre with respect to the land acquired vide notification issued on 25.01.2008 can be said to be the   base   and   considering   the   time   gap   between   2008 notification and 2010 notification, a suitable enhancement ranging between 8% to 15 % is given which is held to be permissible  as per  the catena of  decisions of  this  Court right   from   the   decision   in   the   case   of  <cite>Pehlad  Ram   Vs. HUDA; (2014) 14 SCC 778</cite>  up to the recent decision of this Court in the case of <cite>Ramrao Shankar Tapase (supra)</cite>. However, at the same time considering the fact that in the present   case   with   respect   to   the   very   village,   the acquisition proceedings came to be initiated in the month of  January,  2008,  it will not be safe  and/or  prudent to grant   the   cumulative   increase   of   12%.   In   the   facts   and circumstances of the case and even considering the sale instances produced on record, we are of the opinion that if instead of 12% enhancement on Rs. 2,38,00,000/­, 10% increase   is   accepted   it   can   be   said   to   be   a   just compensation and it may meet the ends of justice.  7 7. In that view of the matter, the market value of the land in question   for   the   lands   acquired   vide   notification   dated 13.01.2010 will be at Rs. 2,87,98,000/­ per acre.  Resultantly,   the   impugned   common   judgment   and   order 8. passed by the High Court is required to be modified to the aforesaid   extent   by   awarding   the   compensation   at   Rs. 2,87,98,000/­ per acre. Present appeals are partly allowed to the aforesaid extent and it is held that the original land owners   shall   be   entitled   to   the   compensation   at   Rs. 2,87,98,000/­   per   acre   with   all   other   statutory   benefits which may be available under the Land Acquisition Act, 1894. The appellant – State of Haryana is hereby directed to   deposit   and/or   pay   the   compensation   to   the   original land   owner(s)   at   the   market   value   of   Rs.   2,87,98,000/­ along with all other statutory benefits within a period of six weeks   from   today   after   deducting   whatever   amount   is already   paid.   Present   appeals   are   partly   allowed   to   the aforesaid extent. No costs.       

The Judgment of the Court was delivered by KIRPAL, J. The common question which arises for consideration in these cases relates to the interpretation of an entry in the Karnataka Tax on Entry of Goods Act, 1979 (for short ’The Act") in so far it relates to furnace oil. In the three sets of cases, there are different periods of assessment which are involved. In the case of Indian Aluminium Company Ltd. (Civil Appeal Nos. 1896-1899/1997 and 1900-1903/1997), the two periods in question are 1982-85 and 1986-1989 I" the case of M/s. Vikrant Tyres Limited (Civil Appeal No. 3697/2000), the period involved is 1992-93. In case of M/s Graphite India Limited (Civil Appeal No. 3696/2000), we are concerned with the period post-1998. Under Section 3 of the aforesaid Act, tax on entry of goods specified in the First Schedule into a local area for consumption, Use or sate there in can be levied at the rates specified by the State Government by notification. It is common ground that prior to amendment of the Act in 1992, there was one Schedule which specified the various items on which entry tax could be levied. Entry No. 11 of the said Schedule was as follows: "AH petroleum products, that is to say, petrol, diesel, erode oil, lubricating oil, transformer oil, brake clutch fluid, bitumin (asphalt) tar and others but excluding LP kerosene and naphtha for use in the manufacture of fertilizers." When tax was sought to be levied on M/s. Indian Aluminium Company Ltd. on entry Of furnace oil, a writ petition was filed in the Karnataka High Court in which it was, inter alia, contended that the aforesaid entry did not permit levy of tax on furnace oil which was brought into Karnataka by the said assessee. The State of Karnataka took the stand before the Single Judge that furnace oil was lubricating oil and, therefore, covered by Entry No. 11. By order dated 28th January, 1992, the learned Single Judge came to the conclusion that furnace oil was not lubricating oil and, therefore, no tax could be levied on the said furnace oil which was brought into Karnataka. An appeal was filed against the aforesaid decision before the Division Bench but during the pendency of the same by an Amendment Act pf 1992; the Act was amended. Instead of one Schedule, the Amending Act provided for two Schedules. The First Schedule contained 102 items on which entry tax Could be levied under Section 3(1). Item No. 103 in the First Schedule was a residuary item which enabled the imposition of tax on "goods other than those specified in any of the entries in this Schedule, but excluding those specified in the Second Schedule." The Second Schedule which was inserted by virtue of the said Amending Act contained a list of items on which tax was not leviable. In the First Schedule, Entry No. 67, corresponding to the earlier Entry No. 11, reads as follows : "Petroleum products; that is to say; petrol, diesel, crude oil, lubricating oil, transformer Oil, brake or clutch fluid, bitumen (asphalt), Tar and others, but excluding aviation fuel, liquid petroleum gas (LPG), kerosene and naphtha for use in the manufacture of fertilizers." On 30th March, 1994, in exercise of the powers conferred by sub-section (1) of Section 3, the Government of Karnataka by a notification specified different rates of tax in respect of entry of goods into Karnataka. Items 4 and 5, which are relevant in the present cases, which were inserted by reason of the said Notification were as follows : "4. Petroleum products, that is to say Petrol, Diesel, Crude Oil, Lubricating Oil, Transformer Oil, Brake or Clutch fluid, Bitumen (asphalt). Tar and others but excluding Liquid Petroleum Gas; (LPG), Kerosene and Naphtha for use in the manufacture of fertilisers. ...2 per cent 5. Furnace oil. ..,2 per cent" On 28th June, 1996, the Division Bench of the Karnataka High Court allowed the appeal of the State and set aside the decision of the Single Judge. The Division Bench came to the conclusion that the aforesaid original Entry No. 11 and the corresponding Entry No. 67 of the First Schedule after amendment in 1992 contemplated the inclusion of furnace oil in the said Entry and, therefore, tax could be levied thereon. In these appeals, the challenge is to the said decision. Learned counsel for the appellants have contended that use of the words "that is to say" both in original Entry No. 11 and in the new Entry No. 67 clearly indicated that the items mentioned therein were exhaustive. They further submit that neither of these entries mentioned furnace oil. It is contended by them that the words "and others" occurring in the said entries only qualify the word "tar" which precedes the said words and, therefore, furnace oil could not be brought under the category of "and others". Reliance is also placed on the Notification dated 30th March, 1994 whereby in the Table providing for the rates of tax a specified entry of furnace oil was inserted, It was contended that in the case of ambiguity it is possible for the Court to look at the subsequent legislation in order to find out the legislative intent. There can be no doubt that these entries, namely, original Entry No. 1.1 and the new Entry No, 67 were exhaustive. Learned counsel for the appellants are, therefore, right in contending as such. We, however, do not find any ambiguity in interpreting the said entries and, therefore, for this purpose it is not necessary for the Court to be influenced by the Notification of 30th March, 1994, the issuance of which can be easily explained. Both these entries (Nos. 11 and 67) mention "petroleum products" : Whereas in Entry No. 11 the first words are "All petroleum products", the word "All" is missing in the new Entry No, 67, This, however, Will not make any material difference because petroleum products would clearly mean any type of petroleum product. The use of the words "and others" would, in our opinion, refers to petroleum products other than those which are specifically mentioned therein. What is. however, important is that the said entries specifically exclude aviation fuel, liquid petroleum gas, kerosene arid Naphtha for use in the manufacture of fertilizers. If the contention of the learned counsel for the appellants is correct that the words "and others" would not enable the inclusion of furnace oil in the said entries, then on the same parity of reasoning aviation fuel, liquid petroleum gas, kerosene and naphtha would also have to be regarded as not being included in the said entries and if this is so there was no need for their specific exclusion. The very fact that there is an exclusion clause, means that but for the said exclusion, aviation fuel, LPG, etc., would be included in the said entries and as they are not specifically mentioned they would be covered by reason of the words "and others." The said entries further show that the legislature never intended to exclude furnace oil from the levy of entry tax. Had the intention of the legislature been to exclude furnace oil, which admittedly is a petroleum product, then such an exclusion would have been indicated in the said entry itself as has been done in the case of aviation fuel, LPG, kerosene and naphtha for use in the manufacture of fertilizers. The aforesaid entries are clear and unambiguous and clearly indicate the taxability of any type of petroleum product except those which are specifically excluded by the said entries. Coming to the Notification of 30th March, 1994, it is quite obvious that as on that day the judgment of the Single Judge in Indian Aluminium Co.’s case held the field and as a result thereof the State was unable to impose entry tax on the import of furnace oil into the State, The only way by which this could have been done, pending the outcome of the letters patent appeal, was to make a specific provision which it did by the said Notification of 30th March, 1994, The entries being clear, the subsequent Notification of 30th March, 1994, cannot be invoked for the purpose of creating ambiguity where none exists. For the aforesaid reasons, we are of the opinion that there is no merit in these appeals. The same are, accordingly, dismissed.