2013 v2 Piii

594
[2013] 2 S.C.R. 593

HARYANA POWER GENERATION CORPORATION
LIMITED AND OTHERS
v.
HARKESH CHAND AND OTHERS
(Civil Appeal No. 100 of 2013)
JANUARY 07, 2013
Service Law:
C
Words and Phrases apprentice and apprenticeship

training Meaning of, in the context of Apprentices Act, 1961.
Respondents filed writ petition claiming their second
assured Career Progression (ACP) Scale on completion
of 20 years of service. They took the plea that the period
should include the period of training as apprentice. They
asserted that while grant of first ACP on completion of
10 years of service, period of apprenticeship was
included. During pendency of the writ petition, the
appellant-department withdrew the first ACP Scale, in
view of clause (4) of Notification dated 14.3.1990. Single
Judge of the High Court held that regular satisfactory
service would include the period spent in apprenticeship
and clause (4) of Notification dated 14.3.1990 cannot
override the order dated 27.2.198 which provided
reckoning of regular satisfactory service. In Writ appeal,
593
[2013] 2 S.C.R.
A Division Bench of High Court upheld the order of Single

Judge. Hence the present appeal.
Disposing of the appeal, the Court
[K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]
Assured Career Progression (ACP) Scale Entitlement

Whether period spent in apprenticeship would be counted
towards regular satisfactory service For the purpose of grant
of ACP scale Held: The period spent in apprenticeship
cannot be counted for grant of ACP Scale, because
apprentices are trainees and not workmen Apprentices Act,
1961 ss. 2(aa), 2(aaa) and 18.
SUPREME COURT REPORTS
HELD: 1. Section 2(aa) of the Apprentices Act, 1961

B (for short the 1961 Act) defines apprentice which
means a person who is undergoing apprenticeship
training in pursuance of a contract of apprenticeship.
Section 2(aaa) defines apprenticeship training which
means a course of training in any industry or
C establishment undergone in pursuance of a contract of
apprenticeship and under prescribed terms and
conditions which may be different for different categories
of apprentices. Section 18 clearly states that apprentices
are trainees and not workers. An apprentice does not
D have a statutory right to claim an appointment and the
employer is not under any statutory obligation to give him
employment. However, if the terms of the contract of
apprenticeship lay down a condition that on successful
completion of apprenticeship an employer would offer him
E an employment, then it is obligatory on his part to do so.
In the absence of such a condition, there is no obligation.
It depends on the terms of the contract. [Paras 20, 21 and
27] [606-D-F; 609-E-F]
2. The respondents in the present case, were
appointed as apprentices ITI trainee for a period of two
years. Each of them were paid a fixed salary of Rs.350/-.
After completion of the training, it was mentioned in the
letter of appointment that they may be appointed to the post
of Officiating Technical Grade-II in the pay scale of Rs.400/
G 700 on temporary basis. The employer had only stated that
on successful completion of the training, the apprentice
may be appointed as Plant Attendant/Technician Grade-II.
Thus, it was not a mandatory term incorporated in the
agreement casting an obligation on the employer to
H appoint him. [Paras 19 and 27] [606-C-D; 609-G]
F

LIMITED v. HARKESH CHAND
595
U.P. State Electricity Board v. Shiv Mohan Singh and

Anr. (2004) 8SCC 402: 2004 (4) Suppl. SCR 953; Narinder
Kumar and Ors. v. The State of Punjab and Ors. AIR 1985
SC 275: 1985 (2) SCR 52; Dhampur Sugar Mills Ltd. v.
Bhola Singh (2005) 2 SCC 470: 2005 (1) SCR 1123; Mukesh
K. Tripathi v. Senior Divisional Manager, LIC (2004) 8 SCC
387: 2004 (4) Suppl. SCR 127 relied on.
3. In view of the promotion policy, the ACP Scheme
and the communications, the High Court has erred in its
appreciation of the contents of the promotion policy and
the conditions incorporated in the scheme and the
clarificatory letters issued from time to time and their
essential purport. The respondents were appointed as
apprentices ITI trainee on 28.3.1987 and they were not
given any kind of post. It is only mentioned that they may
be appointed as Plant Attendant Grade-II/Technician
Grade-II. Thereafter, they were appointed on different
dates as Officiating Technician Grade-II. The regular pay
scale was given from the date of appointment. Prior to
that, it was a fixed pay. They were not working on a post.
They did not belong to any cadre. In fact, they were not
recruited and, hence, the term trainee which has been
referred to in various clarificatory letters has been
misconstrued by the High Court. [Para 28] [611-C-D; 612A-C]
596
A
[2013] 2 S.C.R.
service would mean continuous service counting

towards seniority under the Board including the
continuous service in PSEB before reorganization. It has
been clearly stated that period spent on ad hoc basis,
work charged basis, contingent basis and daily wages
B would not be counted for the purpose of counting the
prescribed length of regular satisfactory service for the
scheme. The respondents, as is evident, were appointed
on different dates, i.e., 30.10.1988, 17.10.1988 and
25.10.1988 respectively as Technicians Grade-II in the pay
C scale on regular basis. Their period of probation was for
two years. The letter/circular dated 27.3.1991 emphasizes
the terms from the date of joining in the cadre. [Para 28]
[610-D-H; 611-A]
5. However, it is clarified that if any financial benefit
D had been availed by the respondents, the same shall not
be recovered, but their dates for grant of ACP Scale shall
remain as determined by the appellants. [Para 29] [612-D]
Case Law Reference:
F
4. The Board had issued clarification that the benefit
of grant of annual increment under the provisions as
contained in the letter dated 27.3.1991 was to be given
to the trainees of all categories whose services had been
regularized on 29.1.1991 or thereafter, and the
consequential benefit should accrue only from the date
on which the regular pay scale has been granted to the
trainees of all categories. Clause 5 of the ACP Scheme
which provides for eligibility criteria, in its note stipulated
that for the purpose of the scheme, regular satisfactory
2004 (4) Suppl. SCR 953 Relied on
Para 22
1985 (2) SCR 52
Relied on
Para 25
2005 (1) SCR 1123
Relied on
Para 26
2004 (4) Suppl. SCR 127 Relied on
Para 26
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 100

of 2013.
G
From the Judgment & Order dated 26.7.2010 of the High

G Court of Punjab & Haryana at Chandigarh in LPA No. 865 of
2010 in CWP No. 1383 of 2009.
Shivendra Dwivedi, Rajesh Mahale, Rokokieno Mor, Krutin
R. Joshi for the Appellants.

LIMITED v. HARKESH CHAND
597
R.K. Kapoor, Ranjvijay, Shweta Kapoor, Anis Ahmed Khan

for th Respondents.
598
A
The Judgment of the Court was delivered by

DIPAK MISRA, J. 1. Leave granted.
2. The present appeal by special leave is directed against
the judgment and order dated 26th July, 2010 passed by the
High Court of Punjab and Haryana at Chandigarh in LPA No.
865 of 2010 whereby the Division Bench concurred with the
view expressed by the learned single Judge in CWP No. 1383
of 2009 whereunder the respondents were held entitled for
grant of Assured Career Progression Scale (for short the ACP
Scale) on completion of ten years of service which included
training as apprentice.
3. The facts as have been undraped are that the three
respondents invoked the writ jurisdiction of the High Court
claiming the benefit of the second ACP Scale on completion
of twenty years of service on the base that their period of training
as apprentice had to be taken into consideration. Such a claim
was founded on the assertion that they had joined as trainees
between 17.4.1987 to 30.4.1987 and were subsequently
absorbed and brought into the cadre. On completion of ten
years from the date they entered the service as trainees, the
first ACP Scale was granted to them. However, when
conferring of the benefit of the second ACP Scale arose, the
same was not extended to them. The said action of the
employer compelled them to knock at the doors of the High
Court and during the pendency of the writ petition, by
proceeding dated 23.4.2009, the benefits conferred under the
first ACP Scale was withdrawn referring to a notification issued
on 11.3.1990 which stipulated in clause (4) that the trainees
referred to therein would be entitled to increment only on
successful completion of their training and in case of Plant
Attendant Grade-II and Technician Grade-II, increment on
successful completion of training would be granted but without
[2013] 2 S.C.R.
A arrears. Though the writ petition was confined to grant of the

second ACP Scale, yet the learned single Judge required the
counsel for both the sides to address about the justifiability of
withdrawal of the benefit of the first ACP Scale and decided
both the facets. The said exercise was undertaken by the
B learned single Judge as the primal issue in respect of both the
ACP Scales rested on the question whether the period spent
during training could be counted towards regular satisfactory
service or not.
4. It is not in dispute that the respondents were appointed
C as Apprentice ITI Trainees by the erstwhile Haryana State
Electricity Board (for short the Board) for a period of two years
on fixed pay of Rs.350/- per month in 1987. The Board, vide
Office Order No. 706/Finance dated 27.2.1998, set out the
eligibility criteria for conferment of benefit of the ACP Scales.
D There is no dispute that the respondents, who were Technicians
Grade-II, were not excluded from the application of the same.
The only question that really emerged for consideration before
the learned single Judge as well as by the Division Bench was
the relevant date from which the regular satisfactory service was
E to be computed for grant of ACP Scales. The learned single
Judge, after referring to the clause and the communications
issued by the Board from time to time, came to hold that the
regular satisfactory service would include the period spent by
the persons as trainees. As regards the withdrawal of the first
F ACP Scale, the learned single Judge, referring to the
notification dated 14.3.1990 and especially to clause (4) which
dealt with grant of increment and thereafter applying the same
reasoning, came to hold that clause (4) would have no operation
to override the Office Order dated 27.2.1998 which provides
G how the regular satisfactory service could be reckoned and,
eventually, came to hold that the ACP Scale that had been
withdrawn during the pendency of the writ petition was
absolutely erroneous. Being of this view, he quashed the
withdrawal order and issued a writ of mandamus commanding
H the respondents therein to grant both the first and second ACP

LIMITED v. HARKESH CHAND [DIPAK MISRA, J.]
599
Scales reckoning the period of training towards the regular

satisfactory service.
5. In the Letters Patent Appeal, the Division Bench
analysed the anatomy of clause 3(q) dealing with grant of the
second ACP Scale and the eligibility criteria, placed reliance
on the memorandum dated 27.3.1991 circulated to all the
departments to the effect that the period of training of all
employees should be treated as duty for all intents and
purposes, referred to the memo dated 2.1.1992 which stated
that the period of training shall be treated as duty for all intents
and purposes, i.e., seniority, leave, etc. and for experience in
service for the purpose of promotion and further relying on the
memorandum dated 20.1.1992 which has laid down that such
period would be counted as experience in service for the
purposes of promotion, concurred with the opinion expressed
by the learned single Judge and declined to entertain the
appeal. Hence, the present appeal by the appellants.
6. We have heard Mr. Shivendra Dwivedi, learned counsel
for the appellants, and Mr. R.K. Kapoor, learned counsel
appearing for the respondents.
7. At the very outset, we may note that the respondents
were granted the first ACP Scale on 16.6.1997, 13.1.1999 and
30.6.1998 with effect from 1.5.1997 instead of 1.11.1998 as
on that date, they completed ten years of service. The same
was withdrawn during the pendency of the writ petition where
the grievance pertained to non-grant of the second ACP Scale
in terms of the Scheme dated 27.2.1998 introduced by the
Board. It is also apt to note here that the respondents have
already been granted second ACP Scale with effect from
1.11.2008. Thus, the only grievance is that the period shall differ
in respect of each respondent if the training period is not
computed.
8. In the backdrop of the aforesaid narrow controversy, we
think it apposite to scrutinize the various documents brought on
600
A
[2013] 2 S.C.R.
A record and how they are to be understood, appreciated and

interpreted regard being had to the contextual meaning of the
term training.
9. The respondent No. 1 was appointed as Apprentice ITI

Trainee vide letter dated 28.3.1987 by the Board. It was
stipulated in the said letter that during the period of training, he
would get a fixed pay of Rs.350/- per month and on successful
completion of the training, he may be appointed as Plant
Attendant Grade-II/Technician Grade-II in the scale of Rs.400700 on temporary basis and he would be exclusively posted in
the Thermal Organisation. It was also stipulated therein that he
would enter into an agreement with the Board that he would
serve the Board for at least five years after successful
completion of training and in case he would leave the service
of the Board, he would remit the entire cost incurred by the
Board in connection with the training during the period and
thereafter during the course of his appointment together with
interest. Similar letter was issued to the other respondents. Vide
Office Order No. 303/EOM/G-263 dated 6.6.1989, number of
persons including the respondents were appointed as
Officiating Technicians Grade-II in the pay-scale of 950-201150-ED-25-1500 with effect from the dates mentioned
against their names. The respondents were appointed on
regular basis with effect from 30.10.1988, 17.10.1988 and
25.10.1988 respectively with the stipulation that they would
remain on probation for a period of two years.
10. As the factual narration would exposit, the Board, in

exercise of power under Section 79 of the Electricity (Supply)
Act, 1948, issued a notification on 14.3.1990 by bringing
certain amendments in the recruitment and promotion for
G
employees working in Thermal Power Projects. The relevant
part of the amendment reads as follows: Para 3(i) of Part-A shall be substituted and read as
follows:

601
602
[2013] 2 S.C.R.
50% posts shall be filled-up by direct recruitment from

amongst persons having passed 2 years ITI Course with
Matric as minimum qualification. Such directly recruited
Plant attendant Gr-II shall remain on training for a period
of two years in regular pay scale of Plant Attendant Gr-II
to be allowed by the Board from time to time. The
Competent Authority may terminate the services of a Plant
Attendant Gr-II (Trainee) without notice and without
assigning any reason, if his work and conduct during the
period of training is not found satisfactory.
Para-3 (i) of Part-B shall be substituted and read as

follows:
13. On 27.3.1991, the Secretary, HSEB, clarified the

position by stating as follows: -
Board vide its notification No. 57, 58, 59, 60/Reg-137,

dated 14.03.1990 and Notification No. 76/Reg-39/L, dated
13.09.90 have granted regular pay scales to the trainee(s)
of all categories w.e.f. 29.1.1990. In this respect the Field
Officers have sought for a clarification whether the period
spent by the trainee on training is to be treated as duty for
all intents and purposes or not.
50% posts shall be filled-up by direct recruitment from

amongst persons having passed 2 years ITI Course with
Middle examination with 2 years experience or ITI one year
course and Middle Examination and with 3 years
experience on similar works. Such directly recruitment
Technician Gr-II shall remain on training for a period of two
years in the regular pay scale to be allowed by the Board
from time to time. The Competent Authority may terminate
the services of a Technician Gr-II (Trainee) without notice
and without assigning any reason, if his work and conduct
during period of training, is not found satisfactory.
The trainees referred to above shall be entitled to the
increment only on successful completion of their training.
In case of Plant attendant Gr-II and Technician Gr-II,
increment on successful completion of training shall be
granted, but without arrears.
[underlining is ours]
11. We have referred to the substituted clauses in extenso
to appreciate the use of the word training therein after
appointment to a post and the stipulation relating to the grant
of increment. In the context of this notification, the policy relating
A to ACP Scale granted under the ACP Scheme and the

clarificatory communications are to be understood.
12. Coming back to the narration, recruitment and
promotion policy as amended, the F.A. & C.A.O., PTPS, HSE,
Panipat, vide Memo dated 7.12.1990 sought certain clarification
B
in relation to grant of increments. The clarification sought was
to the following effect: In this connection it may please be clarified whether the
period of training in all the cases will count towards
increment, leave salary and pension. The above
clarification may please be issued at the earliest so that
the cases are dealt with accordingly on account of grant
of increment and leave salary etc.
After considering the pros and cons of the case, it

has been decided that the period spent by the trainee(s)
of all categories on training shall be treated as duty for all
intents and purposes i.e. grant of increment in accordance
with the provisions as contained in the Policy, leave and
seniority i.e. from the date of joining in this cadre.
[emphasis supplied]
14. In continuation of the aforesaid clarificatory

memorandum dated 27.3.1991, the Board issued another
H memorandum on 22.11.1991. The said clarification related to

603
604
grant of regular pay scale to the trainees of all categories and A

in that letter, it has been stated as follows: In this connection, it is stated that some field offices have
sought for a clarification as to whether the benefit for the
grant of annual increment under the provisions as contained
B
in letter dated 27.3.91 is to be given to all trainee(s), who
were appointed during the year, 1987, 1988 & 1989 etc.
15. After referring to the issue which required clarification,
the Board clarified that it has decided that monetary benefits
of regular pay scale had to be granted to the trainee(s) of all C
categories with effect from 29.1.1990 but the benefit of grant
of annual increment under the provisions as contained in letter
dated 27.3.1991 has to be given to the trainee(s) of all
categories whose services have been regularized on 29.1.1991
or thereafter. It had been further stated that the consequential D
benefits would accrue only from the date on which the regular
pay scale has been granted to the trainees of all categories.
16. As the facts have been further uncurtained, on
27.1.1998, the Board introduced the Assured Career
E
Progression Scheme (for short the ACP Scheme) with the
objective to provide such Board employees who fall within the
scope of the Scheme at least two financial upgradations
including the financial upgradation, if any, availed by such Board
employees as a consequence of the functional promotion.
Clause 2 excludes certain categories of employees, namely, F
appointed on ad hoc basis, work charged basis, part time paid
out of contingencies and a daily wager from getting the benefit
of the Scheme. Clause 3 deals with the definitions. It defines
in Clause 3(b) direct recruit fresh entrant. The same, being
G
relevant, is reproduced below: -
17. Clause 5 deals with the eligibility for grant of ACP

Scales. That being the thrust of the controversy the relevant part
of the said clause is reproduced below: 5.
Eligibility for Grant of ACP Scales:
(1)
Every Board employee who, after a regular

satisfactory service for a minimum period of 10
years, has not got any financial upgradation in terms
of grant of a pay scale higher than the functional pay
scale prescribed for the post as on 31.12.1995, on
which he was recruited as direct recruited fresh
entrant: -
(2)
G
[2013] 2 S.C.R.
recruitee in the Board service and is in continuous

employment of Board since such recruitment;
(b) Direct Recruited Fresh Entrant with reference to a

post or a Board Employee means the post on which such
Board employee was recruited as a regular and direct
H
(a)
either as a consequence of his functional

promotion in the hierarchy, or
(b)
as a consequence of the revision of pay

scale for the same post, or
(c)
as a consequence of any other event through

which the functional pay scale of the post has
been upgraded, with respect to the functional
pay scale prescribed for the post as on
31.12.1995, shall for the purposes of drawal
of pay; be eligible for placement into the First
ACP scale with reference to him.
Every Board employee who, after a regular

satisfactory service for a minimum period of 20
years, has not got more than one financial
upgradation in terms of grant of pay scale higher
than the functional pay scale prescribed for the post
as on 31.12.1995 on which he was recruited as a
direct recruited fresh entrant: -

605
606
(a)
either as a consequence of his functional A

promotion in the hierarchy, or
(b)
as a consequence of the revision of pay

scale for the same post, or
(c)
as a consequences of any other event B

through which the functional pay scale of the
post has been upgraded, with respect to the
functional pay scale prescribed for the post
as on 31.12.1995, shall for the purposes of
drawal of pay; be eligible for placement into C
the First ACP scale with reference to him.
Provided that grant of ACP scale shall also be considered

financial upgradation for the purpose of this para.
NOTE : For the purposes of this scheme regular D
satisfactory service would mean continuous service
counting towards seniority under H.S.E.B. including
continuous service in P.S.E.B. before reorganization,
commencing from the date on which the board employee
joined his service after being recruited through the E
prescribed procedure or rules regulations etc. for regular
recruitment, in the cadre in which he is working at the time
of being considered his eligibility for grant of ACP scales
under this scheme and further fulfilling all the recruitments
prescribed for determining the suitability of grant of ACP F
scales. The period spent on ad hoc basis; work charged
basis; contingent basis and daily wages will not be counted
for the purpose of counting of prescribed length of Regular
Satisfactory Service for this scheme.
G
[emphasis supplied]
18. In this backdrop, it is to be seen whether the period
spent in apprenticeship would be counted towards regular
satisfactory service. The learned single Judge as well as the
[2013] 2 S.C.R.
Division Bench has returned a finding in favour of the

respondents solely on the basis of the clarificatory letters and
communications. Before we advert to the quintessential tenor
of the said communications, it is necessitous to understand the
nature of appointment, the concept of an apprentice, his rights
under the law and the basic ingredients of regular satisfactory
service.
19. As has been stated earlier, the respondents were
appointed as apprentices ITI trainee for a period of two years.
Each of them were paid a fixed salary of Rs.350/-. After
completion of the training, it was mentioned in the letter of
appointment that they may be appointed to the post of
Officiating Technical Grade-II in the pay scale of Rs.400/700
on temporary basis.
20. Section 2(aa) of the Apprentices Act, 1961 (for short

the 1961 Act) defines apprentice which means a person who
is undergoing apprenticeship training in pursuance of a contract
of apprenticeship.
21. Section 2(aaa) defines apprenticeship training which

means a course of training in any industry or establishment
undergone in pursuance of a contract of apprenticeship and
under prescribed terms and conditions which may be different
for different categories of apprentices. Section 18 clearly states
that apprentices are trainees and not workers.
22. In U.P. State Electricity Board v. Shiv Mohan Singh

and Another1, A.K. Mathur, J., speaking for Hegde, J. and
himself, while dealing with the status of apprentice, has stated
thus: G
Therefore a combined reading of the sections as well as

Rules makes it clear that apprentices are only persons
undergoing training and during that training they are entitled
to get a particular stipend, they have to work for fixed hours
1.
(2004) 8 SCC 402.
HARYANA POWER GENERATION CORPORATION 607

and at the end of period of training they have to appear in A
the test and a certificate is issued to them. There is no
obligation on the part of the employer to give them any
employment whatsoever. The position of the apprentice
remains as an apprentice trainee and during the period
of training they will not be treated as workmen. Only B
obligation on the part of the employer is to impart them
training as per provisions of the Act and Rules and to pay
them stipend as required under Rule 11 and beyond that
there is no obligation on the part of the employer to accept
them as his employees and give them the status of C
workmen. There is no relation of master and servant or
employer and employee.
23. Be it noted, in the said case, in paragraph 51, it has
been laid down that the 1961 Act is a complete code in itself
and it lays down the conditions of the apprentices, their tenure, D
their terms and conditions and their obligations and what are
the obligations of the employer. It also lays down that the
apprentices are trainees and not workmen and if any dispute
arises, then the settlement has to be made by the
Apprenticeship Advisor as per Section 20 of the Apprentices E
Act, 1961 and his decision thereof is final. The nature and
character of the apprentice is nothing but that of a trainee and
he is supposed to enter into a contract and by virtue of that
contract, he is to serve for a fixed period on a fixed stipend and
that does not change the character of the apprentice to that of F
a workman under the employer where he is undergoing the
apprenticeship training. Sub-section (4) of Section 4 only lays
down that such contract should be registered with the
Apprenticeship Adviser, but by non-registration of the contract,
the position of the apprentice is not changed to that of a G
workman. From the scheme of the Act, the apprentice is
recruited for the purpose of training as defined in Section 2(aa)
of the Apprentices Act, 1961 and from the language employed
in Sections 6 and 7, it is more than clear that the nature and
character of the apprentice is that of a trainee only and on the H
608
A
[2013] 2 S.C.R.
expiry of the training, there is no corresponding obligation on

the part of the employer to employ him.
24. Thereafter, the majority, referring to Section 22 of the
Act, opined as follows: -
Section 22 makes it abundantly clear that at the end of

the apprenticeship training, it is not obligatory on the part
of the employer to offer an employment to an apprentice
who has completed the period of apprenticeship. It is only
if the terms of the contract of the apprenticeship lay down
a condition that on successful completion of an
apprenticeship training, an employer will offer him an
employment then it is obligatory on the part of the employer
to do so. If there is no such condition stipulated in the
apprenticeship contract then the employer cannot be
compelled to offer employment to such apprentice. At the
same time, it is not obligatory on the part of the apprentice
to serve that employer if there is no such stipulation to this
effect. So it is a mutual thing and it depends on the terms
of contract. The survey of all these provisions of the Acts
and the Rules as mentioned above, makes it clear that the
character and status of apprentice remains the same and
he does not become workman and labour laws are not
attracted.
S.B. Sinha, J., in his concurring opinion, has stated thus: -
Moreover in terms of Section 22 of the Act, the employer

has no statutory liability to give employment to an
apprentice.
G
25. In Narinder Kumar and Others v. The State of Punjab

and Others 2, a two-Judge Bench dwelt upon the letter of
appointment of apprentices and came to hold that the employer
was bound to appoint the apprentices in the available vacancies
because of Section 22(2) of the 1961 Act and the contractual
2.
AIR 1985 SC 275.

609
obligations arising out of para 2 of the letter of appointment

which stated that the apprentices shall be absorbed in the
department if there are vacancies. Be it noted, emphasis was
laid on the nature of the contract.
26. In Dhampur Sugar Mills Ltd. v. Bhola Singh3, while
dealing with an award passed by the Labour Court under the
U.P. Industrial Disputes Act relating to apprentices, a two-Judge
Bench opined thus: -
610
A
14. If the respondent was appointed in terms of the

Apprentices Act, 1961, he will not be a workman, as has C
been held by this Court in Mukesh K. Tripathi v. Senior
Divisional Manager, LIC4 and U.P. SEB v. Shiv Mohan
Singh (supra).
15. In terms of the provisions of the Apprentices Act, 1961, D
a trainee or an apprentice has no right to be absorbed in
services.
27. We have referred to the aforesaid pronouncements
solely for the purpose that an apprentice does not have a
statutory right to claim an appointment and the employer is not E
under any statutory obligation to give him employment.
However, if the terms of the contract of apprenticeship lay down
a condition that on successful completion of apprenticeship an
employer would offer him an employment, then it is obligatory
on his part to do so. In the absence of such a condition, there F
is no obligation. It depends on the terms of the contract. In the
case at hand, as the letter of appointment would show, the
employer had only stated that on successful completion of the
training, the apprentice may be appointed as Plant Attendant/
Technician Grade-II. Thus, it was not a mandatory term G
incorporated in the agreement casting an obligation on the
employer to appoint him.
3.
(2005) 2 SCC 470.
4.
(2004) 8 SCC 387.
[2013] 2 S.C.R.
28. Having dealt with the rights of an apprentice, we may

presently proceed to dwell upon the issue whether any of the
clarificatory letters/circulars conferred any benefit on these
employees so that they could be treated to be in regular
service. On a perusal of the notification issued by the Board, it
is clear as crystal that it relates to two categories of direct
recruits who shall undergo training for a period of two years in
the regular pay scale. Thus, the said notification has no
application to apprentices who avail the training. In the
clarification issued on 27.3.1991, there is a mention with regard
to the regular pay scale in the notification dated 13.9.1990. The
query was limited to the issue whether the training period of
such a trainee would be counted for all intents and purposes
or not. In that context, it was clarified that the period spent by
the apprentice of all categories shall be treated as duty for all
intents and purposes, i.e., for grant of increment in accordance
with the provisions as contained in the policy, leave and
seniority, i.e., from the date of joining in this cadre. It is worth
noting that the Board had issued further clarification that the
benefit of grant of annual increment under the provisions as
contained in the letter dated 27.3.1991 was to be given to the
trainees of all categories whose services had been regularized
on 29.1.1991 or thereafter, and the consequential benefit
should accrue only from the date on which the regular pay scale
has been granted to the trainees of all categories. Clause 5 of
the ACP Scheme which provides for eligibility criteria, in its
note stipulates that for the purpose of the scheme, regular
satisfactory service would mean continuous service counting
towards seniority under the Board including the continuous
service in PSEB before reorganization. It has been clearly
stated that period spent on ad hoc basis, work charged basis,
contingent basis and daily wages would not be counted for the
purpose of counting the prescribed length of regular satisfactory
service for the scheme. The respondents, as is evident, were
appointed on different dates, i.e., 30.10.1988, 17.10.1988 and
25.10.1988 respectively as Technicians Grade-II in the pay
scale on regular basis. Their period of probation was for two

611
years. The letter/circular dated 27.3.1991 emphasizes the

terms from the date of joining in the cadre. As is perceptible
from the clarificatory letter dated 27.3.1991, the trainees of all
categories have been granted regular pay scale from 21.1.1990
and decision had been taken that the training period or period
spent as trainees of all categories shall be treated as duty for
all intents and purposes. On 20th of January, 1992, it was further
clarified that the period spent by the trainees of all categories
on training would be counted as experience in service for the
purposes of promotion. On a scrutiny of the promotion policy,
the ACP Scheme and the communications, we find that the
High Court has erred in its appreciation of the contents of the
promotion policy and the conditions incorporated in the scheme
and the clarificatory letters issued from time to time and their
essential purport. The Board, on 14.3.1990, substituted and
added certain clauses to the recruitment and promotion policy.
We have reproduced the same earlier and on a proper
scrutiny, it is perceivable that 50% posts are to be filled by
direct recruitment from amongst persons who have passed 2
years ITI course with Matric as minimum qualification and such
directly recruited Plant Attendants Grade-II would remain on
training for a period of two years on the regular pay scale of
Plant Attendant Grade-II to be allowed by the Board from time
to time, and the other 50% is be filled up by direct recruitment
from amongst persons who have passed two years ITI course
with middle examination with two years experience or ITI one
year course with middle examination and with three years
experience of similar works. Such directly recruited Technician
Grade-II shall remain on training for a period of two years in
the regular pay scale. The clarificatory letter has to be read in
the said context and we are disposed to think so as the persons
appointed under the policy in the regular pay scale are required
to go on training. The clarification sought related to grant of
increment and computation of period that is spent as trainee
in the capacity of Plant Attendant Grade-II and in that context,
the clarification issued was that the training of all categories
on training would be counted. It is worthy to note that the
612
A
[2013] 2 S.C.R.
A respondents were not recruited under the said policy. They were
appointed as apprentices ITI trainee on 28.3.1987 and they
were not given any kind of post. It is only mentioned that they
may be appointed as Plant Attendant Grade-II/Technician
Grade-II. Thereafter, they were appointed on different dates as
B Officiating Technician Grade-II. The regular pay scale was given
from the date of appointment. Prior to that, it was a fixed pay.
They were not working on a post. They did not belong to any
cadre. In fact, they were not recruited and, hence, the term
trainee which has been referred to in various clarificatory letters
C has been misconstrued by the High Court.
29. In view of the aforesaid analysis, we conclude and hold
that the judgments rendered by the learned single Judge as well
as by the Division Bench are unsustainable and are,
accordingly, set aside. However, we clarify that if any financial
D benefit had been availed by the respondents, the same shall
not be recovered, but their dates for grant of ACP Scale shall
remain as determined by the appellants. Accordingly, the
appeal is disposed of. The parties shall bear their respective
costs.
E
K.K.T.
Appeal disposed of.
[2013] 2 S.C.R. 613

VENKATESHA
v.
STATE OF KARNATAKA
(Criminal Appeal No. 135 of 2005)
JANUARY 8, 2013
614
A
[T.S. THAKUR AND GYAN SUDHA MISRA, JJ.]

Penal Code, 1860 ss. 302, 307, 427 r/w s. 34
Explosive Substances Act, 1908 s. 3 r/w s. 34 IPC
Prosecution under Bomb planted by A3 at the instruction
of A1 and A2 at the shop of PW-14 with intention to kill him
Resulted in death and injuries to the employees of PW14
A3 was granted pardon and examined as approver
Conviction of A1 and A2 by courts below Appeal by A2
Held: Prosecution case is supported by the eye-witnesses,
injured witnesses and the approver Motive established
Conviction justified.
Evidence Act, 1872 s. 133 Evidence of accomplice
Evidentiary value A conviction cannot be held illegal
merely because it proceeds upon the uncorroborated
testimony of an accomplice But it is established rule of
practice that it is unsafe to record a conviction on the testimony
of an approver unless the same is corroborated in material
particulars by some untainted and credible evidence In the
instant case, the evidence of approver was duly corroborated
in the form of oral depositions as also forensic evidence.
[2013] 2 S.C.R.
by PW-14. The explosion of the tape recorder resulted in

death of one employee of PW-14 and injuries to two other
employees ie. PW-1 and PW-7. The motive for killing PW14 was that A-1 carried the impression that his domestic
troubles were because of interference of PW-14. A-1 had
B also threatened PW-14 to kill him. Appellant-A-2 had
joined him in extending that threat. A-3 was granted
pardon u/s. 306 Cr.P.C. and was treated as an approver
and accordingly examined as PW-2.Trial court found A1
and A2 guilty and convicted them for the alleged
offences. The trial court order was upheld by the High
C
Court.
A
Dismissing the appeal, the Court
The appellant-accused No.2, along with accused No.

1, was prosecuted for offences punishable u/ss. 302, 307,
427 r/w s. 34 IPC and s. 3 of the Explosive Substances G
Act, 1908 r/w s. 34 IPC. As per the prosecution, in
furtherance of a common intention to kill PW-14, A-3, at
the instruction of A-1 and A-2, kept a tape recorder loaded
with an explosive substance (bomb) at the shop owned
613
H
HELD: 1. There is no perversity or miscarriage of

justice
arising out of appreciation of evidence by the trial
D
court or the High Court to warrant interference. There is
nothing irrational or perverse in the findings recorded by
the trial Court and the High Court on the question of
motive for the commission of offence, which was
E intended to target PW-14 but claimed the life of the
deceased who was innocent and an un-intended victim
of the crime. The depositions of PW-4, PW-8, PW-10, PW11, the Approver- PW-2 and the injured witnesses, all
support the prosecution case. [Paras 13 and 28] [621-BD; 630-C-D]
F
2.1 Though s. 133 of the Evidence Act, makes an
accomplice a competent witness against the accused
person and declares that a conviction shall not be illegal
merely because it proceeds upon the uncorroborated
G testimony of an accomplice, the established rule of
practice is that it is unsafe to record a conviction on the
testimony of an approver unless the same is
corroborated in material particulars by some untainted
and credible evidence. This practice is treated as a rule
H of law. Courts, therefore, not only approach the evidence
VENKATESHA v. STATE OF KARNATAKA
615
616
of an approver with caution, but insist on corroboration A

of his version before resting a verdict of guilt against the
accused, on the basis of such a deposition. The juristic
basis for that requirement is the fact that the approver is
by his own admission a criminal, which by itself makes
him unworthy of an implicit reliance by the Court, unless B
it is satisfied about the truthfulness of his story by
evidence that is independent and supportive of the
version given by him. That the approvers testimony
needs corroboration cannot, therefore, be doubted as a
proposition of law. [Para 15] [621-G-H; 622-A-C]
C
2.2 Regarding the question of corroboration of the
deposition of the approver in the instant case, the courts
below concurrently held that the same was available in
abundance in the form of the depositions of PW-1, PW3, PW-4, PW-7, PW-9, PW-21 and PW-27. The High Court D
has, upon a careful and detailed reappraisal of the
evidence, concurred with the view taken by the trial Court
and rightly held that there was sufficient corroboration to
the version of the approver, both in the form of oral
depositions of the witness as also forensic evidence, that E
clearly support the prosecution case that the injuries
resulting in the death of the deceased were caused by
an explosive substance planted by A-1 and A-2 to kill PW14. The medical evidence and the nature of the injuries
caused, is also supportive of the prosecution version that F
the deceased died on account of an explosion. [Paras 16,
21 and 25] [622-D-E; 625-G-H; 626-A; 628-G-H]
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 135 of 2005.
[2013] 2 S.C.R.
Gurudatta Ankolekar, Azeem A. Kalebudde, V.N.

Raghupathy, Sanjay R. Hedge for the Respondent.

Court of Karnataka at Bangalore in Criminal Appeal No. 511
of 2000.
Tanuj Bagga Sharma (A.C.) for the Appellant.
T.S. THAKUR, J. 1. The appellant in this appeal by

Special Leave was tried and convicted for offences punishable
under Sections 302, 307, 427 read with Section 34 of the IPC
and Section 3 of the Explosive Substances Act, 1908 read with
Section 34 of the IPC by the XXI Additional City Civil &
Sessions Judge, Bangalore. For the offence of murder
punishable under Section 302 read with Section 34 of the IPC
the appellant was sentenced to undergo rigorous imprisonment
for life and a fine of Rs.5,000/-, in default of payment whereof
a further simple imprisonment for three months was awarded
to the appellant. Similarly, for the offence punishable under
Section 307 read with Section 34 IPC the appellant was
sentenced to undergo five years rigorous imprisonment and a
fine of Rs.1000/-. In default of payment of fine the appellant was
awarded a further simple imprisonment for a period of one
month. For the offence punishable under Section 427 read with
Section 34 IPC the appellant was awarded a sentence of one
years rigorous imprisonment while a sentence of ten years
rigorous imprisonment and a fine of Rs.2000/- was awarded
to the appellant under Section 3 of the Explosive Substances
Act read with Section 34 of the IPC. Criminal Appeal No.514/
2000 filed by the appellant before the High Court against the
judgment and order of the trial Court having failed the appellant
has filed the present appeal to assail his conviction and the
varying sentences awarded to him, for different offences
mentioned above.
2. Prosecution case in brief is that in furtherance of a
common intention to kill Muniraju (PW-14), Hanif (A-3) kept a
tape recorder loaded with an explosive substance (bomb) at
what was known as Friends Hair Style shop owned by
Muniraju (PW -14) situated on the 6th Cross of
Someshwaranagar in Bangalore. When the tape recorder was

[T.S. THAKUR, J.]
617
618
switched on by the deceased-Shankar, who was employed by

Muniraju (PW-14) to work as a barber in the shop, the bomb
planted in the same exploded causing injuries to the said
Shankar that culminated in his death. Injuries were also caused
to Krishna (PW-1) and Shivaram (PW-7), two others similarly
employed to work in the shop. The use of the bomb, according
to the prosecution, was with the intention and knowledge and
under circumstances that if by that act it had caused the death
of Krishna (PW-1) and Shivaram (PW-7) also the accused
would have been guilty of murder.
3. After completion of investigation and filing of

chargesheet but before committal of the case to the Sessions
Court competent to try the same the committal Court by its order
dated 6th January, 1998 allowed an application filed on behalf
of Hanif (A-3) under Section 306 of the Cr.P.C., granted pardon
to him and treated him as an approver in the case. A-3 was
accordingly examined at the trial as an Approver. Briefly stated
the prosecution case and the genesis of the occurrence that
led to the killing of deceased-Shankar and injuries to Krishna
and Shivaram was as under:
E
4. G. Venkatesh Murthy (A-1) was married to Alamelu
(PW-8), daughter of PW-10. While PW-8 was living with her
husband A-1 at his Kanakapura house, there were frequent
quarrels between the husband and wife. In an attempt to sort
out the differences and restore conjugal harmony between the
two, the parents of PW-8 accompanied by Muniraju (PW-14)
visited the house of A-1 and his wife to advise them not to
quarrel with each other. Despite the efforts made by the
parents of PW-8 and Muniraju (PW-14) the relationship
between the husband and wife had continued to remain sour
forcing PW-8 to return to her parents house. Matrimonial
disharmony between the couple eventually led the parties to
report the matter to the police, in which connection Muniraju
(PW-14) also played a role in support of the wife PW-8.
5. The prosecution case is that A-1 carried the impression
[2013] 2 S.C.R.
A that his domestic troubles were largely because of the role

played by PW-14. Its further case is that A-1 had threatened
that he would finish PW-14 within a week. Venkatesha (A-2)
appears to have joined him in extending that threat. These
events are said to constitute the motive for the incident in
B question which was in reality intended to eliminate Muniraju
(PW-14) but instead resulted in the death of the deceasedShankar, in a sequence of events that may be summarised
below:
6. On the 2nd of April, 1996, the fateful day, (PW-7) along
C with (PW-1) and (PW-5) and the deceased-Shankar opened
the hair cutting saloon at about 6.00 a.m. in the morning as
instructed by Muniraju (PW-14) who was going away to Chikka
Tirupathi. Around 9.00 a.m. in the morning (PW-1) is alleged
to have gone for breakfast to the house of PW-14. Shortly
D thereafter Hanif (A-3) came to the saloon to have a shave. He
brought along with him a cardboard box and kept the same on
the table in the saloon. The deceased-Shankar attended to A3 and gave him a shave while PW-5 and PW-7 were also
present in the saloon and inquired about the contents of the
E cardboard box which he had brought with him and kept on the
table in the saloon. Hanif (A-3) said that the box contained a
tape recorder. He also told them that he did not know about
the price and the same had been given to him by a friend. Hanif
(A-3) left the shop after getting the shave leaving behind the
F card board box, saying that he would return to collect the same
later.
7. Krishna (PW-1) in the meantime returned to the saloon
after taking his breakfast, whereafter at about 11 or 11.30 a.m.
in the morning (PW-5) left the shop to have his breakfast. Shortly
G
after his departure from the shop the deceased-Shankar told
PW-7 that he should switch on the tape recorder contained in
the box. The deceased-Shankar accordingly opened the
cardboard box left behind by A-3 and switched the same on.
Smoke started coming out of the box which exploded with a
H

[T.S. THAKUR, J.]
619
620
huge sound damaging the shop and several articles lying A

around. As a result of the blast the deceased-Shankar as well
as PW-1 and PW-7 who were present in the shop sustained
injuries. PW-1 and PW-7 were rushed to the NIMHANS hospital
in an auto-rickshaw from where they were shifted to the Victoria
hospital. Shankar-deceased was also rushed to the Victoria B
hospital in an ambulance but succumbed to the injuries
sustained by him. Muniraju (PW-14) who was away from
Bangalore rushed back after hearing about the bomb blast in
his shop. A first information report about the occurrence was
lodged by PW-1 that set the investigation rolling. In the course C
of investigation Hanif (A-3) offered to make a confession and
was tendered pardon as already mentioned above and later
examined as PW-2 at the trial.
8. It is in the above background that G. Venkatesh Murthy
(A-1), son of Gopala, and the appellant-Venkatesha (A-2), son D
of Gurappa were tried for the offences referred to earlier, found
guilty and sentenced by the Trial Court and which conviction and
sentence has been upheld by the High Court as noticed above.
9. When the matter came up before us on 14th March, E
2012 learned counsel for the respondent-State placed on
record a communication dated 13th March, 2012 stating that
G. Venkatesh Murthy son of Gopala appellant in Criminal
Appeal No.134 of 2005 has since been released prematurely
on 15th August, 2006 in terms of order dated 14th August, F
2006. Appellant-Venkatesha son of Gurappa in Criminal Appeal
No.135 of 2005, however, continues in custody and has
undergone 12 years imprisonment. It was in the light of the said
statement that Criminal Appeal No.134 of 2005 was dismissed
as infructuous in the light of the subsequent development while
G
Criminal Appeal No.135 of 2005 was set down for final hearing.
10. We have heard Ms. Tanuj Bagga Sharma, Advocate
(Amicus Curiae) appearing for the appellant and counsel
appearing for the State at some length who have taken us
through the judgment and order under challenge and the
[2013] 2 S.C.R.
material portion of the evidence adduced at the trial. Both the

courts below have found on a detailed appraisal of the evidence
on record that the prosecution had successfully proved the
charges framed against the appellant.
11. Dealing with the question of motive for the commission
of offence, the trial Court held:
24.. I have considered the evidence tendered by
the witnesses before the court and looking to their oral
evidence, I am of opinion that the prosecution has clearly
established that the accused no.1 was quarrelling with PW8 Alamelu and PW-14 Muniraju also used to advice A-1
and once he had been to the house of A-1 to lead a happy
martial life with PW-8 Alamelu and the prosecution has
also established that PW-14 Muniraju. PW-10, PW-4 and
PW-11 and also A-1 and A-2 gathered in Kanakpura
Police Station and in the Kanakpura Police Station, A-1
posed life threat to Muniraju on the ground that he is
interfering in his family affairs and A-2 in support of A-1
also posed life threat to PW-14 Muniraju. Hence looking
to the evidence of the above mentioned prosecution
witness, I am of the opinion that the prosecution has
established the alleged motive against A-1 and A-2.
12. The High Court has affirmed the above finding on a reappraisal of the evidence led at the trial. The High Court has
added:
It is to be seen therefore from the above materials placed
on record by the prosecution that all was not well between
the accused and PW-14 Muniraju at the relevant time of
this incident. There were strained or bitter feelings between
them. When the Prosecution has succeeded in showing
that there was some sort of enemity, hatredness or hostility
between the parties, the inability on the part of the
prosecution to further put on record the manner in which
such hostility would have swelled up in the mind of the

[T.S. THAKUR, J.]
621
accused to such a degree as to impel him to commit the

offence cannot be construed as a fatal weakness of the
prosecution.
622
A
13. There is nothing irrational or perverse in the findings

recorded by the trial Court and the High Court on the question
B
of motive for the commission of offence, which was intended
to target Muniraju (PW-14) but claimed the life of Shankar who
was totally innocent and an un-intended victim of the crime. The
depositions of M. Venkatesh (PW-4), Smt. Alamelu (PW-8),
Smt. Venkatalakshamma (PW-10) and Ramachandru (PW-11)
all support the prosecution case that the accused had an C
animus towards Muniraju (PW-14) and that the planting of the
bomb, was actually intended to kill him, rather than Shankar the
deceased. So also the fact that Hanif was deputed to carry the
cardboard box to the shop of Muniraju (PW-14) and to leave
the same there on the pretext that he would collect it from there D
later is proved by the depositions of the Approver-Hanif
examined at the trial as PW-2 and the injured witnesses
examined at the Trial.
14. It was contended on behalf of the appellant that an
approvers evidence is unsafe for recording a finding of guilt
against the accused unless the same is corroborated by other
evidence in material particulars. This corroboration was not,
according to the learned Amicus Curiae, forthcoming in the
present case; which should, argued the learned counsel, entitle
the appellant to an acquittal.
15. Section 133 of the Evidence Act, makes an

accomplice a competent witness against the accused person
and declares that a conviction shall not be illegal merely
because it proceeds upon the uncorroborated testimony of an G
accomplice. Even so, the established rule of practice evolved
on the basis of human experience since times immemorial, is
that it is unsafe to record a conviction on the testimony of an
approver unless the same is corroborated in material particulars
by some untainted and credible evidence. So consistent has H
[2013] 2 S.C.R.
been the commitment of the courts to that rule of practice, that

the same is now treated as a rule of law. Courts, therefore, not
only approach the evidence of an approver with caution, but
insist on corroboration of his version before resting a verdict
of guilt against the accused, on the basis of such a deposition.
The juristic basis for that requirement is the fact that the
approver is by his own admission a criminal, which by itself
makes him unworthy of an implicit reliance by the Court, unless
it is satisfied about the truthfulness of his story by evidence that
is independent and supportive of the version given by him. That
the approvers testimony needs corroboration cannot, therefore,
be doubted as a proposition of law. The question is whether
any such corroboration is forthcoming from the evidence
adduced by the prosecution in the present case.
16. Dealing with the question of corroboration of the
deposition of Hanif, the Approver, both the Courts below have
concurrently held that the same was available in abundance in
the form of the depositions of Krishna (PW-1), Lamboo
Venkatesh (PW-3), Venkatesh (PW-4), Shivaram (PW-7),
Thyagaraja (PW-9), P.R. Jayaramu (PW -21) and Dr.
Shivannagouda (PW-27). The trial Court has while dealing with
the question of corroboration of the approvers version
observed:
So looking to the evidence of these three witnesses, the
doctors who examined the deceased Shankar and also the
injured PW-1 Krishna and PW-7 Shivaram, have clearly
opined that the injuries they have mentioned in the PM
report and also the injury certificate respectively can be
caused by bomb blast. Even PW-21 stated in his evidence
that articles 1-5 contained explosive substance. He has
also stated that when the articles were sent to him, the
seals were intact and he opened these seals and
examined these articles 1-7. PW-21 denied the suggestion
that if the glycerine reacts with the soap, it will produce
nitroglycerine and he has also denied the suggestion that

[T.S. THAKUR, J.]
623
articles 1-5 are not the explosives. PW-27 doctor

examined the dead body of the deceased Shankar alias
Ravi, clearly stated in the re-examination that injury No.1
could be necessarily caused by bomb blast. In the cross
examination of these three witnesses, nothing has been
elicited from their mouth by the learned advocate for A-1
and A-2 so as to disbelieve their version that the injuries
sustained by deceased Shankar, Krishna PW-1 and
Shivaram PW-7 are because of the bomb blast.
17. The Trial Court has while appraising the deposition of
Thyagaraja (PW-9) noticed the role played by the appellant and
observed:
18. PW.9 Thyagaraja deposed in his evidence in the
examination-in-chief that he knows pw.3 Lamboo
Venkatesh and during April, 1996, himself and A.2
Venkatesh had been to Anekal to call pw.3 Lamboo
Venkatesh. At that time, pw.3 was not at all there in his
house and while himself and A.2 were returning, they had
meals at Dhaba at Bannerghatta and at that time, A.2 told
him that himself and A.1 made arrangement for the bomb
blast in the hair cutting saloon of CW.5 Muniraju and he
also told that the person they had expected did not expire
and also asked him not to disclose this fact to others. A.2
also told him that himself and A.1 intended to kill CW.5
Muniraju. He enquired with A.2 Venkatesh what is the
enmity between himself, A.1 and CW.5 Muniraju and A.2
also told him that CW.5 Muniraju is interfering in the
matrimonial affairs of pw.8 Alamelu and A.1
Venkateshamurthy and he also told him that galata also
took place one week prior to the incident at Kanakapura
police station.
624
A
[2013] 2 S.C.R.
On enquiry, A.1 told that some person from Harohalli

has to pay the amount and he wants to collect the money
and asked him to accompany him. Thereafter A.1 took him
on his TVS near his shop. Then A.1 opened the lock of
his shop and opened the door and brought a box like
article from his shop. Thereafter, A.1 took him to the busstand. At that time, A.2 Venkatesh was in the bus-stand.
A.1 kept the said box in the bus-stand and asked him to
wait near the same and went away saying that he has to
meet some person. At about 7 or 7-15 a.m., A.1 and A.2
returned
19. The deposition of PW-3 in his cross-examination, is
noted by the Trial Court in the following words:
18. PW-3 Lambu Venkatesh made a detailed deposition

about A.1 to A.3 and the box changing its hands. The following
had been noted by the Trial Court.
During the journey A.1 and A.2 were not conversing

with A.3. Even in the autorickshaw also, when they got
down at the TB Hospital, they were not conversing with
each other. A.1 and A.2 gave Rs.105/- and also the box
into the hands of A.3 Hanif. After getting down from the
autorickshaw, he handed over the box to A.1
Venkateshmurthy. Then A.1 and A.2 asked A.3 Hanif to
keep Rs.100/- with him and to have the shave with Rs.5/and also they have told that they will come within half an
hour. A.1 and A.2 paid the amount and the box to A.3 at
the grave yard. A.1 and A.2 took A.3 stating that they will
show the shop. He enquired with A.1 and A.2 that they have
brought the taperecorder from Kanakapura and now it is
not there and what is the matter. Then A.1 and A.2 told them
that there in one bomb in that box and it is kept in the shop
of his enemy and if anybody filed a case, they will look after
the same. He enquired who is that enemy and then A.1
and A.2 told him that CW.5 Muniraju is their enemy.
20. The Trial Court has similarly dealt with the deposition
of Lamboo Venkatesh (PW-3) and observed:
Even pw.3 Lambu Venkatesh also deposed in his

[T.S. THAKUR, J.]
625
evidence that he too accompanied A.1 and A.2 and Hanif

to Bangalore along with the box in the saloon shop of
PW.14 Muniraju and A.1 gave Hanif Rs.105/- and asked
Hanif that after keeping the box in the shop, to have the
shave and come back. Looking to the cross examination
of both pw.2 and pw.3, so far as they coming to
Bangalore from Kanakapura on 2-4-1996 and this Hanif
taking the box into the shop, nothing has been elicited from
the mouth of pw.2 and pw.3 by the learned counsel
appearing for A.1 and A.2 so as to disbelieve their
version. But, it has come on record in the evidence of
pw.2 and pw.3 that when they came back to Kanakapura
after leaving the box in the shop of pw.14 Muniraju and
when questioned at Kanakapura by pw.2 and pw.3, A.1
and A.2 confessed before them that they have kept the
bomb in the said box to take the life of their enemy pw.14
Muniraju and threatened them not to disclose this fact
before anybody and if they disclosed the same, they will
also be involved in this case.
626
A
xxx xxx
But, as I have already discussed above, regarding the
leaving of the box in the shop of pw.14 Muniraju and also
regarding the extrajudicial confession made by A.1 and
A.2, it is not only the evidence of the approver that is
available on record, but the said facts have also been
independently proved with the evidence of another witness
pw.3 Lambu Venkatesh
21. The High Court has, upon a careful and detailed

reappraisal of the evidence, concurred with the view taken by
the trial Court and, in our view, rightly held that there was G
sufficient corroboration to the version of the Approver, both in
the form of oral depositions of the witness as also forensic
evidence, that clearly support the prosecution case that the
injuries resulting in the death of Shankar were caused by an
H
[2013] 2 S.C.R.
explosive substance planted by A-1 and A-2 to kill Muniraju

(PW-14). The High Court has held:
In the instant case, we are not satisfied with the
submission that the conviction of the accused is solely
based upon the testimony of the witness PW-2 and his
deposition is not corroborated in material particulars. The
direct as well as circumstantial evidence produced in the
case is sufficient to connect the accused with the
commission of the crime. It does not lead to any other
inference than the one of their involvement in the crime.
22. The High Court additionally notes the testimony of
Puttaswamy (PW-25) who was a Police Inspector at CCB and
who ultimately came to investigate the matter under orders of
the DCP (Crime). In his testimony he has mentioned CW-15
and PW-20, who had identified A.1 and A.2 as having bought
gelatine sticks and detonators and the tape recorder
respectively. The High Court noted:
As per the voluntary statement of Accused Nos.1 and
2, he had searched for one Honnegowda and he came to
know that he is dead, but the colleague of Honnegowda
by name Boregowda identified the accused and reported
that accused had collected the gelatin sticks and electric
detonator on the pretext of catching the fish at the pond.
Accordingly he recorded the statement of the said
Boregowda CW-15. After receiving the information that
Honnegowda belongs to the village Bheemagondanahalli,
he secured Muniyappa CW-16 who is the brother of
Honnegowda and also one Srinivas CW-17 and recorded
their statements and from their statements, it was
transpired that Honnegowda is dead. The accused
persons A1 and A2 took him and his staff near one
Thattekare village and shown the spot as the one where
they had experimented the gelatin stick and the electric
detonator with the help of the battery.

[T.S. THAKUR, J.]
627
xxx xxx xxx

There the accused persons A1 and A2 took them to the
shop of one Mahadeswar Radio and Musical Stores and
identified one Madappa PW-20 as the proprietor of the
said shop stating that they had purchased one tape
recorder from PW-20 which was used in the commission
of the crime in this case. The said fact he learnt from the
proprietor of the shop viz., Madappa PW-20. He examined
and recorded the statements of the said Madappa PW20 in this regard.
628
A
23. The High Court further noted the testimony of PW-3,

Lamboo Venkatesh :
Thereafter the Accused No.1 took him on his TVS
moped near his shop. Then the Accused No.1 opened the D
lock of his shop and brought a box like article from inside
his shop. Thereafter the Accused No.1 took him to the bus
stand. At that time A2 Venkatesh was in the bus stand. The
Accused No.1 kept the said box in the bus stand and
asked him to wait near the same and while so saying, he
E
went therefrom saying that he has to meet some person.
At about 7 or 7.15 a.m. both A1 and A2 returned back. At
about the same time, the Accused No.3 also came there.
[2013] 2 S.C.R.
the shop. After about half an hour Accused no.1 and

Accused no.2 returned back and when he asked them
about Accused no.3, they told him that he is getting the
shave and he will come. He has further stated that he made
enquiries with Accused no.1 and Accused no.2 that they
have brought the tape recorder from Kanakapura and now
that the same is not available with them and for that he was
told by Accused no.1 and Accused no.2 that there was
one bomb in that box and the same has been kept in the
shop of their enemy and if anybody were to file the case,
they will look to the same. He enquired as to who is that
enemy and for that he was told by Accused no.1 and
Accused no.2 that PW-14 is their enemy.
24. The High Court accepted the testimony of PW-3 and
noted that:
xxx xxx xxx

F
The accused persons A1 and A2 gave Rs.105/- and also
the box into the hands of A3 Haneef. After getting down
from the auto, he had handed over the box to Accused
No.1. Then Accused no.1 and Accused no.2 asked
Accused no.3 Haneef to keep Rs.100/- with him and to G
have the shave with the help of Rs.5/- and they also told
that they will come within half an hour. Accused no.1 and
Accused no.2 paid the amount and gave the box to
Accused no.3 at the graveyard Then Accused no.1 and
Accused no.2 took Accused no.3 stating that they will show
H
It is to be seen therefore that PW-3 Lamboo Venkatesh

is a relative of both A-1 and A-2 and he has no axe to grind
against them. No doubt, he is also a relative of PW-14.
But it appears that they were not on visiting terms to each
others houses frequently. Be that as it may be. There is
no reason for PW-3 to falsely implicate the Accused in such
ghastly crime, more so, when he happened to be their
relative. Therefore, we find no good reason to discard the
evidence of PW-3. The circumstances brought out in the
evidence of PW-3 Lamboo Venkatesh would substantially
support the evidence of PW-2 in the case. There is
nothing to disbelieve the version of PW-3 given in Court
and he has absolutely no reason to depose falsely against
the accused.
25. The medical evidence adduced at the trial and the
nature of the injuries caused is also supportive of the
prosecution version that the deceased died on account of an
explosion. The medical evidence comprising the deposition of
Dr. Shivannagouda (PW-27) has described the injuries
sustained by the deceased as under:

[T.S. THAKUR, J.]
629
1) Extensive laceration over front of lower part of the

abdomen and front of both thighs, measuring 40 cm x 35
cm. x muscle deep, exposing lacerated muscles, vessels
and nerves, covered by burnt pieces of plastic wires and
metal pieces.
B
2) Multiple abrasions, and lacerations over front of trunk,
inner aspect of right axilla, right arm and forearm and lower
part of chin, inner aspect of left arm and outer aspect of
left forearm. Abrasions measuring 4 cm. x 2 cm. to 1 cm.
x 0.5 cm and lacerations ranging from 3 cms x 2 cms and
C
muscle deep to 1 cm x 0.5 cms skin deep.
26. So, also the injuries sustained by injured witnesses D

PWs 1, 5 and 7 were, according to the medical evidence,
caused because of the explosion. Dr. Shivannagouda (PW-27)
has testified to that effect and specifically stated so.
E
. Article no.1 contained metal pieces, 2 pin plug with F

wire pieces and a piece of magnet spring. Article no.2
contained metal piece condenser and 10 debris of a
suspected transistor/cassette player. Article no.3
contained yellow coloured torn polythene piece, light green
rexin seat cover, a torn cloth piece and a torn old printed G
story book, a piece of cord wire with 2 pin plug and broken
metal pieces and small piece of debris collected from the
crime spot. Article no.4 contained one blood stained torn
half sleeved shirt and a light green coloured torn old pant
of an injured person. Article no.5 contained one multi H
[2013] 2 S.C.R.
coloured torn shirt of an injured person. Article no.6

contained a cotton swab of the wound of the deceased
Shankar. Article no.7 contained one sealed small bottle
said to contain foreign material recovered from the wound
of the injured person. After opening all these above
mentioned articles, he examined them and found the
presence of nitro glycerine, nitro cellulose and ammonium
nitrate. That is to say, the presence of nitro glycerine, nitro
cellulose and ammonium nitrate were detected in article
nos. 1 to 5 and it is highly explosive
28. There is, in our opinion, no perversity or miscarriage

of justice arising out of appreciation of evidence by the trial
Court or the High Court to warrant interference. In the result this
appeal fails and is hereby dismissed.
K.K.T.
On dissections of the dead body, I did not find any

internal injuries.
27. Not only that, the forensic evidence led by the

prosecution in the instant case also shows that there was an
explosion. This is evident from the report of the Sri P.R.
Jayaramu (PW-21), Scientific Officer in the FSL at Bangalore.
The relevant portion whereof is to the following effect:
630
Appeal dismissed.
[2013] 2 S.C.R. 631

CHINNAM KAMESWARA RAO AND ORS.
v.
STATE OF A.P. REP. BY HOME SECRETARY
(Criminal Appeal No.1116 of 2011)
JANUARY 10, 2013
632
A
[T.S. THAKUR AND GYAN SUDHA MISRA, JJ.]

Penal Code, 1860 ss. 302 and 324 r/w s. 34
Prosecution under Injured victim and 4 others eyewitnesses Incident in question was sequel to an incident on
previous day, wherein the deceased was threatened by
accused of dire consequences Acquittal by trial court
Conviction by High Court Held: The conviction was justified
in view of depositions of injured victim and other eyewitnesses Facts of the case prove that the incident was
premeditated Absence of charge u/s. 34 would not affect the
legality of conviction, as such omission caused no prejudice
to the accused.
Code of Criminal Procedure, 1973 s. 386 Appeal
against acquittal Scope of Held: While deciding appeal
against acquittal, the power of appellate court not
circumscribed by any limitation It has power to review the
entire evidence Appellate court can reverse the acquittal
order, if, on appraisal of evidence, it finds that the view taken
by court, while acquitting the accused was not a possible view.
Criminal Trial Conviction on the basis of s. 34 IPC for

which the accused was not charged Held: Mere omission
s. 34 in charge-sheet does not ipso facto or ipso jure lead to
any inference or presumption of prejudice having been caused
to the accused Prejudice from such omission needs to be
satisfactorily demonstrated In the instant case, no prejudice
shown to have been caused Penal Code, 1860 s. 34.
631
[2013] 2 S.C.R.
The appellants-accused, alongwith accused No. 4

were alleged to have caused death of one person and
caused injuries to another. The prosecution case was
that all the accused persons stopped the deceased and
PW1 (the injured witness). All the accused except A-4
B were armed with casuarinas sticks. They assaulted the
deceased and PW-1 and caused injuries to them. The
deceased later succumbed to the injuries. The incident
was a sequel to an incident which had taken place one
day before the day of the incident between the accused
C persons on one hand and the deceased and PWs-1 on
the other and the same was pacified at the intervention
of PW-3. Appellant No.1 had also threatened the
deceased with dire consequences. Charges were framed
against the appellant accused u/ss. 302 and 324 IPC. A-4
was charged u/ss. 302 and 324 IPC with the aid of s. 34
D
IPC. PWs 2,3,4 and 6 were examined as eye-witnesses.
Trial court acquitted all the accused. High Court
maintained the acquittal order as regards A-4, while
reversed the acquittal order as regards appellantsaccused and convicted them u/s. 302/34 and 324/34IPC.
E
In appeal to this Court, appellants contended that
High Court was not correct in reversing the acquittal order
by fresh appraisal of the evidence; that appellantsaccused were not charged u/s. 34 IPC and hence could
F not have been convicted by the High Court with the aid
of s. 34; and that there was no basis for the High Court
to hold that the appellants had common intention to
commit the murder.
G

HELD: 1. The High Court committed no error in
holding the appellants guilty especially when the
statement of PW-1 who was also injured in the incident
was found to be credible. The depositions of PW-1, PW-
J.]
CHINNAM KAMESWARA RAO v. STATE OF A.P.
REP. BY HOME SECRETARY
633
2, PW-3, PW-4, PW-6 all supported the prosecution

version that the deceased was assaulted by the
appellants resulting in grievous injuries to him that
culminated in his death. The trial court fell in error in
rejecting the testimony of these witnesses on minor
contradictions which was not sufficient to shatter their
credibility. The acquittal recorded by the trial court was
not thus a reasonably possible view in the matter which
the High Court was entitled to reverse while hearing the
appeal. [Para 17] [647-E-G]
634
A
2.1 A reading of s. 386 Cr.P.C. leaves no manner of C

doubt that in an appeal against an order of acquittal the
appellate court may reverse such order and direct that
further inquiry be made or that the accused be re-tried,
as the case may be, or impose a sentence upon him
according to law. Similarly in the case of appeal from a D
conviction, the appellate court has the power to reverse
the findings recorded by the trial court and discharge the
accused or pass an order for his re-trial etc. [Para 10]
[639-G]
E
2.2 While deciding appeal against acquittal, the power
of the appellate court is in no way circumscribed by any
limitation and that power is exercisable by the appellate
court to comprehensively review the entire evidence. The
appellate court must bear in mind that in the case of F
acquittal, the innocence of the accused is doubly
assured by his acquittal. Consequently, if two reasonable
conclusions are possible on the basis of the evidence on
record, the appellate court should not disturb the findings
of the acquittal recorded in favour of the accused. [Para
G
11] [639-H; 640-A-B]
2.3 If the appellate court finds that the view taken by
the trial court acquitting the accused was not a
reasonably possible view, it can reverse the view taken
by the trial court and hold the accused guilty. On the
[2013] 2 S.C.R.
contrary, if the view is not a reasonably possible view, the

appellate court is duty bound to interfere and prevent
miscarriage of justice by suitably passing the order by
punishing the offender. Just because the trial court had
recorded an acquittal in favour of the appellants, it cannot
be said that the appellate court had any limitation on its
power to reverse such an acquittal. [Para 12] [641-E-G]
Dhanna etc. v. State of Madhya Pradesh (1996) 10 SCC
79: 1996 (4) Suppl. SCR 28; Kallu @ Masih and Ors. v. State
of Madhya Pradesh (2006) 10 SCC 313: 2006 (1) SCR 201;
Murugesan and Ors. v. State 2012 (10) SCALE 378;
Chandrappa and Ors. v. State of Karnataka (2007) 4 SCC
415: 2007 (2) SCR 630 relied on.
3. Mere omission of s. 34 IPC from the charge-sheet
does not ipso facto or ipso jure lead to any inference or
presumption of prejudice having been caused to the
accused in cases where the conviction is recorded with
the help of that provision. It is only if the accused persons
plead and satisfactorily demonstrate that prejudice had
indeed resulted from the omission of a charge u/s. 34 IPC
that any such omission may assume importance. No
prejudice has been caused in the present case. The
absence of charge u/s. 34 IPC did not, therefore, affect
the legality of the conviction recorded by the High Court.
[Para 15] [646-A-D]
Krishna Govind Patil v. State of Maharashtra AIR 1963
SC 1413:1964 SCR 678; Darbara Singh v. State of Punjab
2012 (8)SCALE 649; Gurpreet Singh v. State of Punjab
(2005) 12 SCC615: 2005 (5) Suppl. SCR 90 relied on.
4. It is not correct to say that there was no evidence

to show common intention on the part of the appellants
to commit the murder of the deceased. The evidence on
record sufficiently proves that the appellants had
confronted the deceased and PW-1 on the previous date

REP. BY HOME SECRETARY
635
636
which was defused with the interference of PW-3 who A

was witness to the threat extended by the appellants to
the deceased of dire consequences. The circumstances
of the instant case leave no manner of doubt that the
appellants shared the common intention to kill the
deceased and that they acted under a premeditated plan. B
The incident in instant case had a history behind it; and
that the appellants had not only threatened the deceased
previously but were lying in wait for his arrival at the place
of occurrence clearly showed that the commission of the
offence was preconcerted. [Para 16] [646-E-F; 647-C-D] C
Case Law Reference:

1996 (4) Suppl. SCR 28
Relied on
Para 11
2006 (1) SCR 201
Relied on
Para 11
2012 (10) SCALE 378
Relied on
Para 11
2007 (2) SCR 630
Relied on
Para 11
1964 SCR 678
Relied on
Para 13
2012 (8) SCALE 649
Relied on
Para 14
2005 (5) Suppl. SCR 90
Relied on
Para 15

No. 1116 of 2011.

Court of Andhra Pradesh at Hyderabad in Criminal Appeal No.
1055 of 2007.
M.S. Ganesh, T. Anamika for the Appellant.
D. Mahesh Babu, Mayur Shah, Savita Devi, Suchitra
Hrangkhawl, Amit K. Nain, M.B. Shivdu for the Respondent.
[2013] 2 S.C.R.
T.S. THAKUR, J. 1. This appeal under Section 2(a) of the

Supreme Court (Enlargement of Criminal Appellate Jurisdiction)
Act, 1970 assails a judgment and order dated 8th February,
2011 passed by the High Court of Andhra Pradesh at
Hyderabad, whereby the High Court has partly allowed the
acquittal appeal filed by the State and while reversing the
judgment and order passed by the trial Court convicted the
appellants for offences punishable under Section 302 read with
Section 34 of the IPC and sentenced them to undergo
imprisonment for life besides levying a fine of Rs.1,000/- each.
In default of payment of fine the appellants have been sentenced
to undergo simple imprisonment for a period of one month
each. The appellants have been further convicted for an offence
punishable under Section 324 read with Section 34 of the IPC
and sentenced to undergo simple imprisonment for three
months each with the direction that the sentences shall run
concurrently.
2. Briefly stated the prosecution case is that on 27th April,
2003, at around 7.00 p.m., the appellants along with one
Papisetti Praveen who was arrayed as accused no.4 stopped
the deceased-Bezawada Srinivasa Rao and PW.1-Alapati
Seshadri while the latter were on their way home at Bethavolu
Park Centre - the place of occurrence. An altercation between
the accused persons on the one hand and the deceased and
PW-1 on the other had according to the prosecution taken
place on the previous day i.e. on 26th April, 2003, while the
deceased and PW.1 were bringing some palmyrah nuts from
the fields. PW-3-Sonti Koteswara Rao, a shopkeeper who runs
a pan shop in the vicinity, claimed to be a witness to that
incident and had intervened and pacified the parties which
passed off without any physical harm to either side except that
according to the prosecution appellant no.1-Chinnam
Kameswara Rao had threatened the deceased with dire
consequences. With the above incident in the background on
27th April, 2003, the accused persons allegedly confronted the
deceased and PW-1-Alapati Seshadri, armed with stout

REP. BY HOME SECRETARY [T.S. THAKUR, J.]
637
casuarina sticks except accused no.4 who was unarmed. An

altercation followed between the two sides as a sequel to the
incident of the previous day in the course whereof appellant
no.1-Chinnam Kameswara Rao is alleged to have struck a
blow on the head of the deceased. When PW-1-Alapati
Seshadri intervened, the remaining two appellants came down
upon him and gave stick blows on his head also. The injured,
as also Alapati Seshadri-PW-1 fell to the ground, whereupon
A-4 is alleged to have kicked and given fist blows to the
deceased while A-1 to A-3 continued to indiscriminately hit both
of them with their sticks which caused bleeding injuries to both
the injured. Taking both of them as dead, the appellants are
alleged to have run away from the spot towards the house of
appellant no.1. Sonti Srinivasa Rao S/o Nageswara Rao (PW2), Sonti Koteswara Rao (PW-3), Sonti Srinivasa Rao, S/o
Veeraiah (PW-4) and M.V. Gopala Krishna Murthy (PW-6) are
alleged to have witnessed the incident. PW-2-Sonti Srinivasa
Rao with the help of one P. Vasudeva Rao shifted both the
injured to the Government Hospital, Gudivada for treatment who
informed the Gudivada Town I Police Station about the arrival
of the injured in the hospital whereupon PW-9-B. Jaya Raju,
ASI, reached the hospital and recorded the statement of the
deceased, marked Exhibit P-6. A case under Section 324 read
with 34 IPC was on the basis of that statement registered and
the injured shifted to the University General Hospital, Vijaywada
for further treatment. Around 2.50 a.m. on 28th April, 2003, the
deceased succumbed to his injuries in the hospital at
Vijayawada whereupon the Investigating Officer altered the
offence from Section 324 read with Section 34 IPC to Section
302 read with Section 34 IPC.
638
A
3. After completion of investigation that included the arrest G

of the accused persons, post mortem of the dead body of the
deceased, seizure of the weapons of offence, the police filed
a charge sheet against the appellants for offences punishable
under Sections 302 and 307 IPC while A-4 was charged under
Sections 302 and 307 read with Section 34 IPC.
H
[2013] 2 S.C.R.
4. At the trial the prosecution examined as many as 13

witnesses including PWs.2, 3, 4 and 6, said to be eye witnesses
to the incident. The accused did not lead any evidence in their
defence. The trial Court all the same came to the conclusion
that the prosecution had not been able to establish the charge
framed against the accused persons and accordingly acquitted
them.
5. Aggrieved by the judgment and order of the acquittal
recorded by the trial Court the State filed Criminal Appeal
No.1055 of 2007 before the High Court of Andhra Pradesh at
Hyderabad which appeal was allowed in part reversing the
acquittal of the appellants and convicting them for offences
punishable under Section 302 read with Section 34 IPC and
Section 324 read with Section 34 of the IPC. The acquittal of
accused No.4 was, however, affirmed by the High Court. The
appellants were consequently sentenced to undergo
imprisonment for life apart from imprisonment for a period of
three months under Section 324 IPC as already noticed above.
The sentences were directed to run concurrently. The present
appeal assails the correctness of the above judgment and
order.
6. Appearing for the appellants Mr. M.S. Ganesh, learned
senior counsel, made a three-fold submission. Firstly, he
contended that the High Court was in error in embarking upon
a fresh appraisal of the evidence adduced by the prosecution
at the trial and interfering with the order of acquittal passed by
the trial Court just because in the opinion of the High Court a
second view was equally reasonable in the facts and
circumstances of the case. He urged that acquittal of the
accused persons reinforced their innocence and except in
compelling circumstances where the acquittal is seen to have
resulted in miscarriage of justice or where appreciation of
evidence is perverse or manifestly unsatisfactory, the High Court
should not have converted the acquittal into a conviction.
7. Secondly, he contended that the High Court could not

639
have convicted the appellants for offences punishable under A

Sections 302 and 307 both read with Section 34 IPC when the
charges framed against the appellants were only for offences
punishable under Sections 302 and 307 of the IPC. It was also
contended that accused No.4, since acquitted by the Courts
below, alone was charged with Section 302 read with Section B
34 IPC. The High Court was not, therefore, justified in convicting
the appellants for the offence of murder or attempt to murder
with the help of Section 34 of the Code. The absence of a
charge under Section 34 had, according to the learned counsel,
resulted in prejudice and miscarriage of justice to the appellants. C
8. Thirdly, it was contended that on a true and proper
appreciation of the evidence adduced at the trial there was no
real basis for the High Court to hold that the appellants had the
common intention to commit the murder of the deceased. In the
absence of any evidence to support the allegation that the D
appellants had a common intention to kill the deceased, their
conviction for the offence of murder punishable under Section
302 IPC was not justified. At any rate, the evidence did not
support the charge of murder which could be appropriately
converted to culpable homicide not amounting to murder E
punishable under Section 304 Part I or II of the IPC.
640
A
9. We propose to deal with the submissions ad seriatim.

10. The powers of Appellate Court are stipulated in Section
386 of the Code of Criminal Procedure, 1973. A bare reading F
of the said provision leaves no manner of doubt that in an
appeal against an order of acquittal the Appellate Court may
reverse such order and direct that further inquiry be made or
that the accused be re-tried, as the case may be or impose a
sentence upon him according to law. Similarly in the case of G
appeal from a conviction the Appellate Court has the power to
reverse the findings recorded by the trial Court and discharge
the accused or pass an order for his re-trial etc.
11. The plenitude of the power available to the Appellate
Court notwithstanding recent pronouncements of this Court has H
[2013] 2 S.C.R.
evolved a rule of prudence according to which the Appellate

Court must bear in mind that in the case of acquittal the
innocence of the accused is doubly assured by his acquittal.
Consequently, if two reasonable conclusions are possible on
the basis of the evidence on record the Appellate Court should
not disturb the findings of the acquittal recorded in favour of the
accused. A long line of decisions rendered by this Court have
recognised that while deciding acquittal appeal the power of
the Appellate Court is in no way circumscribed by any limitation
and that power is exercisable by the Appellate Court to
comprehensively review the entire evidence. The decisions of
this Court in Dhanna etc. v. State of Madhya Pradesh (1996)
10 SCC 79 and Kallu @ Masih & Ors. v. State of Madhya
Pradesh (2006) 10 SCC 313 aptly summarise the legal
position. A recent decision of this Court in Murugesan & Ors.
v. State 2012 (10) SCALE 378 is a timely reminder of the
principles that were succinctly enunciated in an earlier decision
of this Court in Chandrappa & Ors. v. State of Karnataka
(2007) 4 SCC 415, in the following words:
42. From the above decisions, in our considered view, the
following general principles regarding powers of the
appellate court while dealing with an appeal against an
order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the
order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no

limitation, restriction or condition on exercise of such power
and an appellate court on the evidence before it may reach
its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, substantial and

compelling reasons, good and sufficient grounds, very
strong circumstances, distorted conclusions, glaring
mistakes, etc. are not intended to curtail extensive powers
of an appellate court in an appeal against acquittal. Such

641
phraseologies are more in the nature of flourishes of A

language to emphasise the reluctance of an appellate
court to interfere with acquittal than to curtail the power of
the court to review the evidence and to come to its own
conclusion.
(4) An appellate court, however, must bear in mind that in B
case of acquittal, there is double presumption in favour of
the accused. Firstly, the presumption of innocence is
available to him under the fundamental principle of criminal
jurisprudence that every person shall be presumed to be
innocent unless he is proved guilty by a competent court C
of law. Secondly, the accused having secured his acquittal,
the presumption of his innocence is further reinforced,
reaffirmed and strengthened by the trial court.
(5)If two reasonable conclusions are possible on the basis D
of the evidence on record, the appellate court should not
disturb the finding of acquittal recorded by the trial court.
642
A
(emphasis supplied)
12. What, therefore, needs to be examined in the light of E
the settled legal position is whether the view taken by the trial
Court acquitting the accused was a reasonably possible view.
If the answer is in the negative nothing prevents the Appellate
Court from reversing the view taken by the trial Court and holding
the accused guilty. On the contrary, if the view is not a
F
reasonably possible view the Appellate Court is duty bound to
interfere and prevent miscarriage of justice by suitably passing
the order by punishing the offender. We have in that view no
hesitation in rejecting the contention that just because the trial
Court had recorded an acquittal in favour of the appellants the
Appellate Court had any limitation on its power to reverse such G
an acquittal. Whether or not the view was reasonably possible
will be seen by us a little later when we take up the merits of
the contention urged by the appellant regarding involvement of
the accused persons in the commission of the crime.
H
[2013] 2 S.C.R.
13. That brings us to the question whether absence of a

charge under Section 34 of the IPC would by itself operate as
an impediment in the Appellate Court recording a conviction
with the help of that provision. The decision of this Court provide
a complete answer to that contention to which we may
immediately refer. In Krishna Govind Patil v. State of
Maharashtra AIR 1963 SC 1413 the trial Court had acquitted
all the accused persons while the High Court convicted them
under Section 302 read with Section 34 IPC. This Court held
that the High Court could convict the accused under Section
34 even if the named accused were acquitted provided the
High Court held that there were other unnamed accused
persons who were involved in the commission of the offence.
The following passage from the said decision is, in this regard,
apposite:
It is well settled that common intention within the meaning
of the section implied a pre-arranged plan and the criminal
act was done pursuant to the pre-arranged plan. The said
plan may also develop on the spot during the course of the
commission of the offence; but the crucial circumstance is
that the said plan must precede the act constituting the
offence. If that be so, before a court can convict a person
under s. 302, read with s. 34, of the Indian Penal Code, it
should come to a definite conclusion that the said person
had a prior concert with one or more other persons, named
or unnamed, for committing the said offence. A few
illustrations will bring out the impact of s. 34 on different
situations.
(1) A, B, C and D are charged under s. 302, read with
s.34,oftheIndianPenalCode,forcommittingthemurder
of E. The evidence is directed to establish that the said
four persons have taken part in the murder.
(2) A, B, C and D and unnamed others are charged under
the said sections. But evidence is adduced to prove that
the said persons, along with others, named or unnamed,
participated jointly in the commission of that offence.

643
(3) A, B, C and D are charged under the said sections.

But the evidence is directed to prove that A, B, C and D,
along with 3 others, have jointly committed the offence.
644
A
(underlined for emphasis)

14. The legal position was reviewed by a two-Judge Bench
of this Court in Darbara Singh v. State of Punjab 2012 (8)
SCALE 649. In that case also charges were framed against
two of the accused persons under Section 302 IPC whereas
against the third accused the charge framed was under Section
302 read with Section 34 IPC. The trial Court had acquitted the
third accused but convicted the first two accused much in the
same manner as is the position in the present case. The
contention before this Court was that in the absence of a
charge under Section 34 no conviction could be recorded
against the appellants under Section 302 especially when the
injury inflicted by one of the accused persons was not held to
be sufficient in the ordinary course of nature to cause death.
[2013] 2 S.C.R.
A Repelling the contention this Court observed:
xxx xxx xxx

But what is the position if the Court acquits 3 of the 4
accused either because it rejects the prosecution
evidence or because it gives the benefit of doubt to the
said accused? Can it hold, in the absence of a charge as
well as evidence, that though the three accused are
acquitted, some other unidentified persons acted conjointly
along with one of the named persons? If the Court could
do so, it would be making out a new case for the
prosecution: it would be deciding contrary to the evidence
adduced in the case. A Court cannot obviously make out
a case for the prosecution which is not disclosed either in
the charge or in regard to which there is no basis in the
evidence. There must be some foundation in the evidence
that persons other than those named have taken part in
the commission of the offence and if there is such a basis
the case will be covered by the third illustration.
12. It has further been submitted on behalf of the Appellant

that, as the appellant was never charged under
Section302r/wSection34IndianPenalCode,unlessitis
established that the injury caused by the Appellant on the
head of the deceased, was sufficient to cause death, the
Appellant ought not to have been convicted under
Section302Indian Penal Code simplicitor. The
submission so advanced is not worth consideration for the
simple reason that the Learned Counsel for the Appellant
has been unable to show what prejudice, if any, has been
caused to the Appellant, even if such charge has not been
framed against him. He was always fully aware of all the
facts and he had, in fact, gone alongwith Kashmir Singh
and Hira Singh with an intention to kill the deceased. Both
of them have undoubtedly inflicted injuries on the
deceased Mukhtiar Singh. The Appellant has further been
found guilty of causing grievous injury on the head of the
deceased being a vital part of the body. Therefore, in the
light of the facts and circumstances of the said case, the
submission so advanced does not merit acceptance.
xxx xxx xxx
14. The defect in framing of the charges must be so

serious that it cannot be covered under Sections 464/465
Code of Criminal Procedure., which provide that, an order
of sentence or conviction shall not be deemed to be invalid
only on the ground that no charge was framed, or that there
was some irregularity or omission or misjoinder of charges,
unless the court comes to the conclusion that there was
also, as a consequence, a failure of justice. In
determining whether any error, omission or irregularity in
framing the relevant charges, has led to a failure of justice,
the court must have regard to whether an objection could
have been raised at an earlier stage, during the
proceedings or not. While judging the question of prejudice

645
or guilt, the court must bear in mind that every accused has
a right to a fair trial, where he is aware of what he is being
tried for and where the facts sought to be established
against him, are explained to him fairly and clearly, and
further, where he is given a full and fair chance to defend
himself against the said charge(s).
15. The failure of justice is an extremely pliable or facile
expression, which can be made to fit into any situation in
any case. The court must endeavour to find the truth. There
would be failure of justice; not only by unjust conviction,
but also by acquittal of the guilty, as a result of unjust failure
to produce requisite evidence. of course, the rights of the
accused have to be kept in mind and also safeguarded,
but they should not be over emphasized to the extent of
forgetting that the victims also have rights. It has to be
shown that the accused has suffered some disability or
detriment in respect of the protections available to him
under Indian Criminal Jurisprudence. Prejudice, is
incapable of being interpreted in its generic sense and
applied to criminal jurisprudence. The plea of prejudice has
to be in relation to investigation or trial, and not with
respect to matters falling outside their scope. Once the
accused is able to show that there has been serious
prejudice caused to him, with respect to either of these
aspects, and that the same has defeated the rights
available to him under jurisprudence, then the accused can
seek benefit under the orders of the Court.
15. In Gurpreet Singh v. State of Punjab (2005) 12 SCC
615, this Court held that no prejudice could be claimed by the
accused merely because charge was framed under Section
302 IPC simpliciter and not with the help of Section 34 IPC.
The Court found that the eye witnesses had been crossexamined at length from all possible angles and from
suggestions that were put to them to the eye witnesses, the
Court was fully satisfied that there was no manner of prejudice
caused. What, therefore, needs to be examined is whether any
646
A
[2013] 2 S.C.R.
A prejudice was caused to the accused persons on account of

absence of charge under Section 34 of the IPC. Mere omission
of Section 34 from the charge sheet does not ipso facto or ipso
jure lead to any inference or presumption of prejudice having
been caused to the accused in cases where the conviction is
B recorded with the help of that provision. It is only if the accused
persons plead and satisfactorily demonstrate that prejudice had
indeed resulted from the omission of a charge under Section
34 of the IPC that any such omission may assume importance.
We do not see any such prejudice having been caused in the
C present case. In fairness to Mr. Ganesh we must mention that
although he had strenuously argued the legal proposition dealt
with by us above when it came to demonstrating a prejudice
on account of absence of charge under Section 34 he was
unable to do so. The absence of charge under Section 34 of
the IPC did not, therefore, affect the legality of the conviction
D
recorded by the High Court.
16. That brings us to third and the only other submission
urged by Mr. Ganesh to the effect that there was no evidence
to show common intention on the part of the appellants to
E commit the murder of the deceased. We regret our inability to
accept that submission. The evidence on record sufficiently
proves that the appellants had confronted the deceased and
PW-1 Alapati Seshadri on the previous date which was
defused with the interference of PW-3 Sonti Koteswara Rao,
a shopkeeper in the vicinity who was, however, witness to the
F
threat extended by the appellants to the deceased of dire
consequences. There is evidence to show that on the date of
occurrence the appellants were lying in wait near the Reading
Room for the deceased. No sooner they saw him approaching
the place where they were waiting that they went behind the
G Reading Room to fetch the stout sticks that they appear to have
hidden from public view only to mount a surprise attack on the
deceased. This implies that the appellants had made
preparations for the commission of the offence and the incident
was premeditated as a sequel to the confrontation that the two
H parties had on the previous date. The last and by no means

647
the least important circumstance is the nature of the injuries

inflicted upon the deceased on the vital part of the body
resulting in fracture of the skull, sufficient in the ordinary course
to cause death. The evidence on record suggests that all the
three accused persons belaboured the deceased and
continued their assault and aggression even when the
deceased had fallen to the ground on account of the head
injuries sustained by him. The appellants fled from the place of
occurrence only when they felt that the deceased was dead. All
these circumstances leave no manner of doubt that the
appellants shared the common intention to kill the deceased
and that they had acted under a premeditated plan. It is well
settled that the common intention may develop during the
course of the commission of the offence but the fact that the
incident in instant case had a history behind it and that the
appellants had not only threatened the deceased previously but
were lying in wait for his arrival at the place of occurrence
clearly showed that the commission of the offence was
preconcerted.
17. The High Court, therefore, committed no error in
holding the appellants guilty especially when the statement of
PW-1 Alapati Seshadri who was also injured in the incident
was found to be credible. The depositions of PW-1 Alapati
Seshadri, PW-2 Sonti Srinivasa Rao S/o Nageswara Rao, PW3 Sonti Koteswara Rao, PW-4 Sonti Srinivasa Rao S/o
Veeraiah, PW-6 M.V. Gopala Krishna Murthy all supported the
prosecution version that the deceased was assaulted by the
appellants resulting in grievous injuries to him that culminated
in his death. The trial Court had obviously fallen in error in
rejecting the testimony of these witnesses on minor
contradictions which was not sufficient to shatter their credibility.
The acquittal recorded by the trial Court was not thus a
reasonably possible view in the matter which the High Court
was entitled to reverse while hearing the appeal.
[2013] 2 S.C.R. 648

A
Appeal dismissed.
FEBRUARY 5, 2013
[P. SATHASIVAM AND JAGDISH SINGH KHEHAR, JJ.]
Service Law:
18. In the result this appeal fails and is hereby dismissed.

K.K.T.
STATE OF J & K AND ORS.

v.
SAT PAL
(Civil Appeal Nos.938-939 of 2013)
Appointment Recruitment Candidate in wait-list

Claiming appointment, in view that candidate above him in
the merit list did not join His writ petition disposed of
directing the appellant-State to examine the claim State
rejected the claim Contempt petition Disposed of holding
D that the candidate deserved to be appointed and directing the
State to consider the case and pass orders in accordance with
the order of the Court LPA by State Dismissed as not
maintainable On appeal, held: In the facts of the case, the
candidate deserved to be appointed to the post The offer
of appointment would relate back to the permissible date
E
contemplated under rules laying down conditions of service
of the cadre The candidate entitled to seniority immediately
below those who were appointed from the same process of
selection He would be entitled to wages from the date of the
order.
F
The respondent participated in the selection process
for the post of Junior Engineer (Civil) Grade-II, and figured
in the final merit/select list of Scheduled Caste
candidates. On coming to know that some scheduled
G Caste candidates above him in the merit list had not
joined inspite of having been offered appointment, he
addressed a representation seeking appointment against
an available vacancy. He specifically named a candidate
T, in the merit list, who did not join despite being offered
648
H
C
STATE OF J & K AND ORS. v. SAT PAL
649
appointment. As the representation remained undecided,

the respondent filed writ petition before High Court. The
appellant-State did not appear before the Court. High
Court disposed of the petition and directed the
appointing authority to examine the claim of the
respondent. The appellants dismissed the claim of the
respondent taking the view that the vacancies cannot be
filled at the belated stage; and that the appointment could
not have been granted in accordance with the waiting list,
as the same had outlived its validity. The respondent filed
contempt petition against the order. High Court disposed
of the petition holding that the respondent deserved to
be appointed and directed the appellant-State to consider
the issue and pass orders in accordance with the
judgment of the Court. Appellants filed LPA taking the
plea that the directions in the nature recorded by High
Court was not permissible in exercise of contempt
jurisdiction. Division Bench of High Court dismissed the
appeal as not maintainable. Hence the present appeal.
650
A
Disposing of the appeals, the Court

E
HELD: 1. In the facts and circumstances of the case,
it would be just and appropriate to direct the appellants
to appoint the respondent against the post of Junior
Engineer (Civil) Grade-II. Even though candidates who
were higher in merit, were offered appointment to the post
of Junior Engineer (Civil) Grade-II, for which recruitment
was held, some of such posts remained vacant on
account of the fact that persons higher in merit to the
respondent had declined to join, despite having been
offered appointment. Atleast one such vacancy never
came to be filled up. In such a situation, the claim of the
respondent whose name figured in the merit/select list,
ought to have been offered appointment against the said
post. The claim of the respondent could not have been
repudiated. The offer of appointment would relate back
[2013] 2 S.C.R.
A to the permissible date contemplated under the rules

laying down conditions of service of the cadre to which
the respondent would be appointed. The respondent
would be entitled to seniority immediately below those
who were appointed from the same process of selection.
B Since the respondent has not discharged his duties, he
would be entitled to wages only with effect from the date
of the instant order. [Paras 10 and 18] [656-G-H; 657-AC; 663-F-G]
1.2. The reason for declining the claim of the
C respondent for appointment out of the waiting list is
unjustified. A waiting list would start to operate only after
the posts for which the recruitment is conducted, have
been completed. A waiting list would commence to
operate, when offers of appointment have been issued to
D those emerging on the top of the merit list and after the
vacancies for which the recruitment process has been
conducted have been filled up. In the instant case, the
situation for operating the waiting list had not arisen,
because one of the posts of Junior Engineer (Civil) GradeE II for which the recruitment process was conducted was
actually never filled up. [Para 11] [657-E-G]
1.3. Even if it is assumed, for arguments sake, that all
the posts for which selection was held were duly filled
F up, the validity of the waiting list, in the facts of the present
case, has to be determined with reference to 22.4.2008,
because the offer of appointment to T (the candidate,
who did not join) was made on 22.4.2008. It is the said
vacancy, for which the respondent had approached the
High Court. As against the aforesaid, it is the
G
acknowledged position recorded by the appellants in the
impugned order that the waiting list was valid till May, 2008.
If T was found eligible for appointment against the
vacancy in question, out of the waiting list, the respondent
herein would be equally eligible for appointment against
H
651
the said vacancy. [Para 11] [658-A-D]
652
A
Virender S. Hooda v. State of Haryana (1999) 3 SCC

696; Mukul Saikia v. State of Assam (2009) 1 SCC 386: 2008
(16) SCR 236 relied on.
2.1. The observations made by the High Court in the
contempt cases were advisory in nature. Rather than
initiating action against the appellants for having missed
the point, while considering the claim of the respondent
in contempt jurisdiction, the High Court in its wisdom,
required the appellants to correct the mistake committed
by the appellants. The High Court did not, in the first
instance, initiate any coercive action against the
appellants. In the aforesaid view of the matter, it is
apparent that the appellants unnecessarily preferred a
letters patent appeal to assail the order of the High Court
on a technical plea that the High Court in exercise of its
contempt jurisdiction could not have dealt with the merits
of the claim of the respondent. [Para 14] [661-D-G]
Prithawi Nath Ram v. State of Jharkhand and Ors. (2004)
7 SCC 261: 2004 (3) Suppl. SCR 740; V.M. Manohar
Prasad v. N. Ratnam Raju and Anr. (2004) 13 SCC 610;
Midnapore Peoples Coop. Bank Ltd. and Ors. v. Chunilal
Nanda and Ors. (2006) 5 SCC 399: 2006 (2) Suppl. SCR 986
referred to.
2.2. Though the technical pleas raised by the
appellants are fully legitimate but in the facts and
circumstances of the present case, the Court would not
invoke the jurisdiction under Article 136 of the
Constitution of India, for debating and deciding the
technical pleas advanced by the appellants. The court
would rather invoke its jurisdiction under Article 142 of
the Constitution of India for doing complete justice in the
instant case. Entertaining the instant appeals would
defeat the ends of justice for which the respondent had
approached the High Court. Entertaining the objections
[2013] 2 S.C.R.
A filed by the appellants would result in deviating from the

merits of the claim raised by the respondent before the
High Court. [Para 16] [662-E-G]
2.3. The State is not an adversary, and ought not

have behaved in the manner, it has chosen, in the facts
and circumstances of the instant case. In the first
instance, it failed to even file a response before the High
Court, to the writ petition preferred by the respondent. In
order to ensure that justice to the respondent was not
delayed, the High Court, instead of adjudicating the
matter on merits, considered it just and appropriate to
direct the appointing authority to consider the claim of the
respondent, consequent upon T having declined to join
the post of Junior Engineer (Civil) Grade-II. Mainly
because, the respondent had approached the High Court
for relief, the appellants rejected his claim for wholly
unreasonable grounds. Rather than focusing on the
merits of the claim raised by the respondent, the
appellants chose to initiate proceedings which would
deviate the legal process from the merits of the claim of
the respondent. [Para 17] [662-G-H; 663-A-C]
Case Law Reference:
(1999) 3 SCC 696
relied on
Para 13
2008 (16) SCR 236
relied on
Para 13
2004 (3) Suppl. SCR 740
referred to
Para 15
(2004) 13 SCC 610
referred to
Para 15
2006 (2) Suppl. SCR 986 referred to
Para 15
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.

938-939 of 2013.

Court of Jammu and Kashmir at Jammu in LPAC No. 2 of 2012
H & CMP No. 3 of 2012.
653
Gaurav Pachnanda, Sunil Fernandes, Vernika Tomar,

Astha Sharma, Rahul Sharma, Insha Mir for the Appellants.
654
A
Sakal Bhushan, P.D. Sharma for the Respondent.

JAGDISH SINGH KHEHAR, J. 1. Leave granted.

2. The Public Works Department of the State of Jammu
& Kashmir conducted a process of selection, for recruitment
against the posts of Junior Engineer (Civil) Grade-II. Sat Pal,
the respondent herein participated in the aforesaid process of
selection. He was successful, inasmuch as, he figured in the
final merit/select list of scheduled caste candidates, prepared
at the culmination of the selection process. Having learnt that
some scheduled cast candidates above him in the merit/select
list had not joined inspite of having been offered appointment,
Sat Pal addressed a representation to the appellants seeking
appointment against an available vacancy. In his
representation, he mentioned the name of Trilok Nath as one
of the selected candidates, who had been offered appointment,
but had not joined. In his representation, he also pointed out,
that in the merit/select list pertaining for scheduled caste
candidates, his name figured immediately after the name of the
said Trilok Nath.
3. Since the representation filed by the respondent
remained undecided, he approached the High Court of Jammu
& Kashmir at Jammu (hereinafter referred to as, the High Court)
by filing SWP no. 1156 of 2009. Before the High Court, the
respondent Sat Pal reiterated the factual position asserted by
him in his representation. To substantiate his assertion
pertaining to Trilok Nath, that although the aforesaid Trilok Nath
had been offered appointment against the post of Junior
Engineer (Civil) Grade-II on 22.4.2008, Trilok Nath had not
joined against the same, he placed before the High Court a
communication dated 5.5.2008 issued by the Chief Engineer
[2013] 2 S.C.R.
A (R&B) Department, Jammu, narrating that Trilok Nath was not

interested to join against the post of Junior Engineer (Civil)
Grade-II.
4. Before the High Court, the respondent relied upon the
prevalent rule, whereunder, a waiting list was valid for one year.
B
The fact that the prevalent rules envisaged, that the merit list of
candidates in continuation of those offered appointment, would
constitute the waiting list, and would be valid for a period of one
year, was not disputed even before us.
C
5. Despite the High Court having issued notice to the State

Government in SWP no.1156 of 2009, and had required it to
file pleadings, the State Government i.e., the appellants before
this Court, did not file any objections. The right of the appellants
to file objections was closed by an order dated 5.4.2010. In the
D aforesaid view of the matter, it was natural for the High Court
to infer, that the assertions made by the respondent before it,
were truthful and acceptable for a final determination of the
controversy. Despite the aforesaid, the High Court disposed
of the aforesaid writ petition at the admission stage, by
E directing the appointing authority to examine the claim of the
respondent, for appointment against the post of Junior
Engineer (Civil) Grade-II, by keeping in mind the communication
dated 5.5.2008 issued by the Chief Engineer (R&B)
Department, Jammu, affirming that Trilok Nath, who was offered
F appointment against the post under reference, had declined to
join. The High Court required the appellants herein to take a
final decision in respect of the appointment of the respondent,
within a period of two months, from the date a copy of the order
of the High Court was made available.
G
6. In compliance of the directions issued by the High Court

vide order dated 9.8.2010 in SWP no. 1156 of 2009, the
appellants passed an order on 23.8.2011. By the said order
dated 23.8.2011, the claim of the respondent for appointment
against the post of Junior Engineer (Civil) Grade-II was rejected
H for the following reasons:-

[JAGDISH SINGH KHEHAR, J.]
"(i)
(ii)
655
656
In view of the fact that the waiting list issued in A

respect of the recruitment has outlived its validity
way back in May, 2008 itself, he cannot be granted
appointment in accordance with the same.
And that for the abovesaid reason, vacancies
cannot be filled at a belated stage."
7. Aggrieved by the rejection order dated 23.8.2011,

rather than assailing the same by way of a fresh writ petition,
the respondent filed Contempt (SWP) no. 157 of 2011. The
aforesaid contempt petition was disposed of by the High Court C
vide order dated 29.10.2011, with the following observations:"The claim of the petitioner for his appointment as Junior
Engineer (Civil) Grade-II arose during the validity of select
list/wait list. The duty was cast on the competent authority, D
who was seized of the select list/wait list to fill up the
vacancies from the wait list, but it failed to perform its duty.
It is not the fault of the petitioner that his claim for
appointment was not considered during the validity of
select list/wait list. The fault is committed by the authority
E
and the petitioner cannot penalized for the same. The claim
of the petitioner on merits deserved to be allowed for
being appointed on the post of Junior Engineer (Civil)
Grade-II when select list/wait list was in operation. Same
having not been done despite request having been made,
his right of consideration for being appointed would thus F
survive though such claim was considered by the
Government after the expiry of the validity period of select
list/wait list.
Consideration order issued by the Government does G
not comply with the court directions. Before initiating action
for framing rule in this contempt petition, it will be
appropriate to afford an opportunity to the respondents to
consider the whole issue and pass orders in accordance
with judgment of the Court. Four week's time is granted to H
[2013] 2 S.C.R.
the respondents to reconsider the whole issue in the light

of the observations made hereinabove and file compliance
report by or before next date."
8. The appellants herein were aggrieved by the order
passed by the High Court in Contempt (SWP) no. 157 of 2011
filed by the respondent, since the appellants felt, that the
directions in the nature recorded by the High Court (in the order
extracted hereinabove), were not permissible in exercise of
contempt jurisdiction. It is, therefore, that the appellants
preferred a letters patent appeal (LPAC no.2 of 2012) to assail
the order dated 29.10.2011 passed by the High Court in
Contempt (SWP) no. 157 of 2011. The letters patent bench,
by its order dated 3.4.2012, held the said letters patent appeal
as not maintainable. The orders passed by the High Court
dated 29.10.2011 and 3.4.2012 have been assailed by the
appellants before this Court, by way of present appeals.
9. The controversy in hand is yet another illustration of the
denial of a legitimate claim, of an innocent citizen. Rather than
appreciating the claim raised by the respondent before the
High Court through SWP no.1156 of 2009, to which the
appellants failed to even file their response, the same was
ordered to be closed by an order dated 5.4.2010. Thereupon
appellants have chosen to pursue a course, which would
sideline the main controversy. The course adopted would
neither serve their own purpose, nor the purpose of the
respondent Sat Pal.
10. It is not a matter of dispute, that the respondent Sat

Pal participated in a process of selection for recruitment
against the post of Junior Engineer (Civil) Grade-II. It is also
G not in dispute, that his name figured in the merit/select list of
scheduled caste candidates. Trilok Nath, who had been offered
appointment against the post of Junior Engineer (Civil) GradeII on 22.4.2008, did not join, despite the said offer of
appointment. The instant fact is fully substantiated from the
H order dated 5.5.2008 issued by the Chief Engineer (R&B)

657
Department, Jammu. Even though candidates who were higher A

in merit, were offered appointment to the post of Junior
Engineer (Civil) Grade-II, for which recruitment was held, some
of such posts remained vacant on account of the fact that
persons higher in merit to the respondent Sat Pal had declined
to join, despite having been offered appointment. Atleast one B
such vacancy offered to Trilok Nath never came to be filled up.
In such a situation, the claim of the respondent Sat Pal whose
name figured in the merit/select list, ought to have been offered
appointment against the said post. The claim of respondent Sat
Pal could not have been repudiated, specially on account of his C
assertion, that his name in the merit/select list amongst
Scheduled Caste candidates immediately below the name of
Trilok Nath, was not disputed even in the pleadings before this
Court. It is not the case of the appellants before this Court, that
any other candidate higher than Sat Pal in the merit/select list
D
is available out of Scheduled Caste candidates, and can be
offered the post against which Trilok Nath had not joined.
11. In view of the factual position noticed hereinabove, the
reason indicated by the appellants in declining the claim of the
respondent Sat Pal for appointment out of the waiting list is E
clearly unjustified. A waiting list would start to operate only after
the posts for which the recruitment is conducted, have been
completed. A waiting list would commence to operate, when
offers of appointment have been issued to those emerging on
the top of the merit list. The existence of a waiting list, allows F
room to the appointing authority to fill up vacancies which arise
during the subsistence of the waiting list. A waiting list
commences to operate, after the vacancies for which the
recruitment process has been conducted have been filled up.
In the instant controversy the aforesaid situation for operating G
the waiting list had not arisen, because one of the posts of
Junior Engineer (Civil) Grade-II for which the recruitment
process was conducted was actually never filled up. For the
reason that Trilok Nath had not assumed charge, one of the
posts for which the process of recruitment was conducted, had H
658
A
[2013] 2 S.C.R.
remained vacant. That apart, even if it is assumed for arguments

sake, that all the posts for which the process of selection was
conducted were duly filled up, it cannot be disputed that Trilok
Nath who had participated in the same selection process as
the respondent herein, was offered appointment against the
post of Junior Engineer (Civil) Grade-II on 22.4.2008. The
aforesaid offer was made, consequent upon his selection in the
said process of recruitment. The validity of the waiting list, in
the facts of this case, has to be determined with reference to
22.4.2008, because the vacancy was offered to Trilok Nath on
22.4.2008. It is the said vacancy, for which the respondent had
approached the High Court. As against the aforesaid, it is the
acknowledged position recorded by the appellants in the
impugned order dated 23.8.2011 (extracted above), that the
waiting list was valid till May, 2008. If Trilok Nath was found
eligible for appointment against the vacancy in question out of
the same waiting list, the respondent herein would be equally
eligible for appointment against the said vacancy. This would
be the unquestionable legal position, in so far as the present
controversy is concerned.
12. The date of filing of the representation by the parties
concerned and/or the date on which the competent authority
chooses to fill up the vacancy in question, is of no consequence
whatsoever. The only relevant date is the date of arising of the
vacancy. It would be a different legal proposition, if the
appointing authority decides not to fill up an available vacancy,
despite the availability of candidates on the waiting list. The
offer made to Trilok Nath on 22.4.2008 by itself, leads to the
inference that the vacancy under reference arose within the
period of one year, i.e., during the period of validity of the
waiting list postulated by the rules. The offer of the vacancy to
Trilok Nath, negates the proposition posed above, i.e., the
desire of the employer not to fill up the vacancy. Herein, the
appellants wished to fill up the vacancy under reference.
Moreover, this is not a case where the respondent was seeking
appointment against a vacancy, over and above the posts for

659
which the process of selection/ recruitment was conducted.

Based on the aforesaid inference, we have no hesitation in
concluding that the appellants ought to have appointed the
respondent Sat Pal, against the vacancy which was offered to
Trilok Nath.
13. The issue arising for consideration herein, has already
been adjudicated upon by this Court. In the first instance
reference may be made to the decision rendered by this Court
in Virender S. Hooda v. State of Haryana (1999) 3 SCC 696.
In the instant case administrative instructions envisaged, that
vacancies which came into existence within six months of the
date of recommendation by the Public Service Commission,
could be filled up from the earlier process of selection. The
observations made by this Court on the instant issue, in the
aforesaid background, are being extracted below:
"..The fact that there were further vacancies available
and when 9 vacancies were advertised to be filled up
within a period of six months after announcement of the
previous selection cannot be disputed at all. In terms of the
circulars issued by the Government on 22.3.1957 and
26.5.1972 when such vacancies arise within six months
from the receipt of the recommendation of the Public
Service Commission they have to be filled up out of the
waiting list maintained by the Commission. In respect of
the vacancies which arise after the expiry of six months it
is necessary to send the requisition to the Commission. It
is also made clear that if the Commission makes
recommendations regarding a post to the Department and
additional vacancies occur in the Department within a
period of six months on the receipt of the
recommendations, then the vacancies which occur later on
can be filled in from amongst the additional candidates
recommended by the Commission. It is urged on behalf
of the appellants that letter dated 7.1.1992 indicated that
the cadre strength in the Haryana Civil Service (Executive
660
[2013] 2 S.C.R.
This Court has also considered the same issue wherein there
were no rules/administrative instructions for filling up vacancies
E from the waiting list. While examining the aforesaid issue this
Court in Mukul Saikia v. State of Assam, (2009) 1 SCC 386,
held as under:
Branch) was 440 and the officers filling these posts were
around 129 and there was a shortfall of 111 and 23 posts
had to be filled up by direct recruitment. Thus 12 posts for
direct recruitment were vacant when the advertisement for
recruitment was made which was held in 1991. Therefore,
the appellants' case ought to have been considered when
some of the vacancies arose by reason of nonappointment of some of the candidates. Therefore, the
Government ought to have considered the case of the
appellants as per the rank obtained by them and the
appellants had to be appointed if they came within the
range of selection. Thus when these vacancies arise within
the period of six months from the date of previous selection
the circulars are attracted and hence the view of the High
Court that vacancies arose after selection process
commenced has no relevance and is contrary to the
declared policy of the Government in the matter to fill up
such posts from the waiting list."
"At the outset it should be noticed that the select list

prepared by APSC could be used to fill the notified
vacancies and not future vacancies. If the requisition and
advertisement was only for 27 posts, the State cannot
appoint more than the number of posts advertised, even
though APSC had prepared a select list of 64 candidates.
The select list got exhausted when all the 27 posts were
filled. Thereafter, the candidates below the 27 appointed
candidates have no right to claim appointment to any
vacancy in regard to which selection was not held. The fact
that evidently and admittedly the names of the appellants
appeared in the select list dated 17.7.2000 below the

661
persons who have been appointed on merit against the

said 27 vacancies, and as such they could not have been
appointed in excess of the number of posts advertised as
the currency of select list had expired as soon as the
number of posts advertised are filled up, therefore,
appointment beyond the number of posts advertised would
amount to filling up future vacancies meant for direct
candidates in violation of quota rules. Therefore, the
appellants are not entitled to claim any relief for
themselves. The question that remains for consideration
is whether there is any ground for challenging the
regularisation of the private respondents."
The determination rendered by this Court in the aforesaid
judgments, substantiates the view expressed by us in the
foregoing paragraphs.
14. It is in the background of the aforesaid factual and legal
position, that the High Court recorded some observations in its
order dated 29.10.2011 passed in Contempt (SWP no.157 of
2011). The aforesaid observations were advisory in nature.
Rather than initiating action against the appellants for having
missed the point, while considering the claim of the respondent
in contempt jurisdiction, the High Court in its wisdom required
the appellants to correct the mistake committed by the
appellants. The High Court did not, in the first instance, initiate
any coercive action against the appellants. In the aforesaid view
of the matter it is apparent, that the appellants unnecessarily
preferred a letters patent appeal to assail the order of the High
Court dated 29.10.2011, on a technical plea, that the High Court
in exercise of its contempt jurisdiction could not have dealt with
the merits of the claim of the respondent. The same issue is
being pursued now before us on technical grounds of
maintainability of the letters patent appeal preferred by the
appellants before the High Court (out of which the instant
appeals have arisen).
15. In so far as the technical objections raised by the
662
A
[2013] 2 S.C.R.
A appellants is concerned, reliance, in the first instance was

placed by the learned counsel on Prithawi Nath Ram v. State
of Jharkhand & Others, (2004) 7 SCC 261, wherein this Court
opined, that a court in exercise of its contempt jurisdiction,
dealing with an application alleging non compliance of its
B earlier order, could not examine the rightness or wrongness of
that order, nor could it issue further directions. Reliance was
also placed on V.M. Manohar Prasad v. N. Ratnam Raju &
Anr., (2004) 13 SCC 610, wherein this Court held, that a
contempt court was precluded from adjudicating on the merits
C of a controversy by passing any supplemental order, in addition
to the order non compliance of which, was the basis of initiating
contempt proceedings. Finally, reliance was placed on
Midnapore Peoples' Coop. Bank Ltd. & Others v. Chunilal
Nanda & Others (2006) 5 SCC 399, dealing with the
maintainability of an intra-court appeal against an order passed
D
by the High Court in exercise of its contempt jurisdiction.
16. It is not as if the pleas raised at the hands of the
appellants are not fully legitimate. In the facts and circumstances
of this case, for reasons which would emerge from our instant
E order, we would decline to invoke the jurisdiction vested in us
under Article 136 of the Constitution of India, for debating and
deciding the technical pleas advanced by the appellants. We
would rather invoke our jurisdiction under Article 142 of the
Constitution of India for doing complete justice in the cause in
F hand. Entertaining the instant appeals would defeat the ends
of justice for which the respondent Sat Pal had approached the
High Court. Entertaining the objections filed by the appellants
would result in deviating from the merits of the claim raised by
the respondent Sat Pal, before the High Court.
G
17. It gives us no pleasure to record that the State is not
an adversary, and ought not have behaved in the manner it has
chosen in the facts and circumstances of this case. In the first
instance, it failed to even file a response before the High Court,
to the writ petition preferred by the respondent Sat Pal. The
H

663
matter could have been adjudicated on merits, had the High

Court chosen to do so. In order to ensure that justice to the
respondent was not delayed, the High Court considered it just
and appropriate to direct the appointing authority to consider
the claim of the respondent, consequent upon Trilok Nath having
declined to join the post of Junior Engineer (Civil) Grade-II.
Mainly because, the respondent Sat Pal had approached the
High Court for relief, the appellants rejected his claim for wholly
unreasonable grounds. Rather than focusing on the merits of
the claim raised by respondent Sat Pal, the appellants chose
to initiate proceedings which would deviate the legal process
from the merits of the claim of respondent. Had we issued
notice to respondent Sat Pal based on the technical pleas
raised by the appellants, the respondent Sat Pal may not even
have been in a position to defend himself before this Court.
Litigation before this Court, is an expensive proposition. A poor
scheduled caste candidate cannot be subjected to unnecessary
harassment at the hands of the mighty State. It is for the
aforesaid reasons, that the instant order is being passed, for
doing complete justice in the instant cause.
18. In view of the factual and legal position discussed by
us hereinabove, we are of the view, that in the facts and
circumstances of this case, it would be just and appropriate to
direct the appellants to appoint the respondent Sat Pal against
the post of Junior Engineer (Civil) Grade-II. The aforesaid offer
of appointment will relate back to the permissible date
contemplated under the rules laying down conditions of service
of the cadre to which the respondent Sat Pal will be appointed.
Naturally, the respondent will be entitled to seniority immediately
below those who were appointed from the same process of
selection. Since Sat Pal has not discharged his duties, he would
be entitled to wages only with effect from the date of the instant
order.
[2013] 2 S.C.R. 664

A
Appeals disposed of.
APRIL 1, 2013.
[G.S. SINGHVI, H.L. GOKHALE AND RANJANA
PRAKASH DESAI, JJ.]
Maharashtra Regional and Town Planning Act, 1966:
19. Disposed of in the aforesaid terms.

K.K.T.
SHRIRAMPUR MUNICIPAL COUNCIL, SHRIRAMPUR

v.
SATYABHAMABAI BHIMAJI DAWKHER AND OTHERS
(Civil Appeal No. 2733 of 2013 etc.)
s.127 r/w s.126 Land reserved not acquired/no steps

commenced towards acquisition within six months of service
of notice u/s 127 Held: The reservation shall be deemed to
have lapsed and the land shall be deemed to have been
released from such reservation so as to enable the owner to
D
develop the same Steps towards acquisition would really
commence when State Government takes active steps for
acquisition of particular piece of land which leads to
publication of declaration u/s 6 of 1894 Act Expression no
steps as aforesaid used in s. 127 of 1966 Act has to be read
E in the context of provisions of 1894 Act and mere passing of
a resolution by Planning Authority or sending of a letter to
Collector or even to State Government cannot be treated as
commencement of proceedings for acquisition of land under
1966 Act or 1894 Act Land Acquisition Act, 1894 s.6.
F
In the instant appeals filed by the Municipal Council,
the question for consideration before the Court was:
whether reservation of the parcels of land owned by the
respondents in the Regional plans/Development plans
G prepared under the Maharashtra Regional and Town
Planning Act, 1966 would be deemed to have lapsed
because the same were not acquired or no steps were
commenced in that respect within six months of the
service of notice u/s 127 of that Act.
664
H
SHRIRAMPUR MUNICIPAL COUNCIL, SHRIRAMPUR v.

SATYABHAMABAI BHIMAJI DAWKHER
Dismissing the appeals, the Court
665
666
A
HELD: 1.1 Section 126(1) of the Maharashtra

Regional and Town Planning Act, 1966 lays down that
when any land is required or reserved for any of the
public purposes specified in any plan or scheme, the B
Planning Authority, Development Authority, or any
Appropriate Authority can acquire the same as
mentioned therein. Section 126(2) empowers the State
Government to make a declaration u/s 6 of the Land
Acquisition Act, 1894. Proviso to this sub-section fixes the
C
time limit of one year for making such declaration. Section
126(3) lays down that on publication of a declaration u/s
6 of the 1894 Act, the Collector shall proceed to take order
for the acquisition of the land under the 1894 Act and the
provisions of that Act shall apply to such acquisition with
the modification regarding market value as specified in D
Clauses (i) to (iii) of that sub-section. Section 126(4)
contains a non obstante clause and provides that if a
declaration is not made within the period referred to in
sub-s. (2), or having been made, such period expired at
the commencement of the Maharashtra Regional Town E
Planning (Amendment) Act, 1993, the State Government
can make fresh declaration under the 1894 Act. [para 17]
[686-A-B, E-H]
1.2 Section 127 of the 1966 Act lays down that if any F
land reserved, allotted or designated for any purpose
specified in any plan prepared and sanctioned under the
1966 Act is not acquired by agreement within ten years
from the date on which a final Regional plan or final
Development plan comes into force or if proceedings for G
the acquisition of such land under the 1966 Act read with
the 1894 Act are not commenced within that period, the
owner or any person interested in the land may serve
notice on the Planning Authority, Development Authority
or Appropriate Authority to that effect. That section
H
[2013] 2 S.C.R.
further lays down that if the land is not acquired or no

steps are commenced for its acquisition within six
months from the date of service of notice, the reservation
etc. shall be deemed to have lapsed and the land shall
be deemed to have been released from such reservation
etc. so as to enable the owner to develop the same. [para
17] [686-H; 687-A-D]
Municipal Corporation of Greater Bombay v. Dr.
Hakimwadi Tenants Association 1988 SCR 21 =1988 (Supp)
SCC 55; Girnar Traders v. State of Maharashtra (Girnar
Traders II) 2007 (9 ) SCR 383 = 2007 (73) SCC 555; and
Girnar Traders v. State of Maharashtra (Girnar Traders III)
2011 (3) SCR 1 = (2011) 3 SCC 1 relied on.
1.3 This Court is further of the view that the majority
in Girnar Traders (II) had rightly observed that steps
towards the acquisition would really commence when the
State Government takes active steps for the acquisition
of the particular piece of land which leads to publication
of the declaration u/s 6 of the 1894 Act. Any other
interpretation of the scheme of ss. 126 and 127 of the
1966 Act will make the provisions wholly unworkable and
leave the landowner at the mercy of the Planning
Authority and the State Government. [para 21] [698-F-G]
1.4 The expression no steps as aforesaid used in
s. 127 of the 1966 Act has to be read in the context of the
provisions of the 1894 Act and mere passing of a
resolution by the Planning Authority or sending of a letter
to the Collector or even the State Government cannot be
treated as commencement of the proceedings for the
acquisition of land under the 1966 Act or the 1894 Act.
By enacting ss. 125 to 127 of the 1966 Act, the State
Legislature has made a definite departure from the
scheme of acquisition enshrined in the 1894 Act. But a
holistic reading of these provisions makes it clear that
while engrafting the substance of some of the provisions
SHRIRAMPUR MUNICIPAL COUNCIL, SHRIRAMPUR v. 667

SATYABHAMABAI BHIMAJI DAWKHER
of the 1894 Act in the 1966 Act and leaving out other
provisions, the State Legislature has ensured that the
landowners/other interested persons, whose land is
utilized for execution of the Development plan/Town
Planning Scheme, etc. are not left high and dry. This is
the reason why time limit of ten years has been
prescribed in s. 31(5) and also u/ss 126 and 127 of the
1966 Act for acquisition of land, with a stipulation that if
the land is not acquired within six months of the service
of notice u/s 127 or steps are not commenced for
acquisition, reservation of the land will be deemed to
have lapsed. [para 22] [698-H; 699-A-E]
1.5 There is no conflict between the judgments of the
two-Judge Bench in Dr. Hakimwadi Tenants Association
and the majority judgment in Girnar Traders (II). In both the
cases, this Court emphasized that if any private land is
shown as reserved, allotted or designated for any
purpose specified in any Development plan, the same
may be acquired within ten years either by agreement or
by following the procedure prescribed under the 1894
Act, and if proceedings for the acquisition of land are not
commenced within that period and a further period of six
months from the date of service of notice u/s 127 of the
1966 Act, then the land shall be deemed to have been
released from such reservation, allotment, etc. Further,
the observations contained in paragraph 133 of Girnar
Traders (III) unequivocally support the majority judgment
in Girnar Traders (II). [para 20 and 24] [697-H; 698-A-B;
705-D-E]
1.6 This Court, therefore, holds that the majority
judgment in Girnar Traders (II) lays down correct law and
does not require reconsideration by a larger Bench. It is
further held that the orders impugned in the instant
appeals are legally correct and do not call for interference
by this Court. [para 25] [705-E]
668
A

Case Law Reference:
[2013] 2 S.C.R.
2007 (9) SCR
relied on
para 3.6
1988 SCR 21
relied on
para 13
relied on
para 13
2011 (3) SCR 1
CIVIL APPELLATE JURISDICTION : Civil Appeal No.

2733 of 2013.
From the Judgment and Order dated 30.03.2009 of the

C High Court of Judicature at Bombay, bench at Aurangabad in
Writ Petition No. 4774 of 2006.
WITH
C.A. Nos. 2735, 2736, 2739, 2741, 2742, 2747, 2748, 2749
& 2750 of 2013.
Shekhar Naphade, Vibhu Bhakru, Atul Y. Chitale, V.V. Giri,

R. Balasubramanian, Ravindra K. Adsure, Jayashree Wad,
Ashish Wad, Mayank K. Sagar, Vinay Navare, Satyajeet
Kumar, Abha R. Sharma, Manish Pitale, C.S. Ashri, M.P. Jha,
E Ram Eqbal Roy, Harshvardhan Jha, Karan Kanwal, Suchitra A.
Chitale, Sudhanshu S. Choudhari, Rajshri Duvey, Narendra
Kumar, Pravesh Thakur, Viraj Kadam, Sidaarth Shinde, D.M.
Nargolkar, M.Y. Deshmukh, Abhijeet B. Kale, Yatin M. Jagtap.
Shrikant R. Deshmukh, Shivaji M. Jadhav, Shankar Chillarge,
F Asha Gopalan Nair for the appearing parties.
G.S. SINGHVI, J. 1. Leave granted.
2. The question which arises for consideration in these

G appeals is whether reservation of the parcels of land owned by
the respondents in the Regional plans/Development plans
prepared under the Maharashtra Regional and Town Planning
Act, 1966 (for short, the 1966 Act) will be deemed to have
lapsed because the same were not acquired or no steps were
H commenced in that respect within six months of the service of

SATYABHAMABAI BHIMAJI DAWKHER [G.S. SINGHVI, J.]
670
A
notice under Section 127 of that Act.
3. For the sake of convenience, we shall first notice the

facts from the record of the appeal arising out of SLP(C) No.
9934/2009.
3.1 Respondent Nos. 1 to 5 are the owners in possession
of the land comprised in Gat Nos. 44/1/2 and 44/1/4, CTS No.
2141 measuring about 2 hectares and 40 ares situated at
Shrirampur Taluka, Shrirampur (Maharashtra).
3.2 In the Development plan prepared for Shrirampur
under the 1966 Act, which was sanctioned by Director of Town
Planning, Maharashtra vide order dated 9.8.1991 and enforced
with effect from 31.10.1991, the land of respondent Nos. 1 to
5 was shown as reserved for primary school and playground.
However, the same was not acquired in accordance with the
provisions of Section 126 of the 1966 Act read with the Land
Acquisition Act, 1894 (for short, the 1894 Act).
3.3 After eleven and a half years of the reservation of their
land, respondent Nos. 1 to 5 issued purchase notice dated
29.5.2003 under Section 127 of the 1966 Act, which was duly
served upon the Chief Officer of the appellant Shrirampur
Municipal Council, Shrirampur. The relevant portions of the
notice are extracted below:
PURCHASE NOTICE
UNDER SECTION 127
Maharashtra Regional and Town Planning Act, 1966.
1] Shrimati Satyabhamabai Bhimaji Dawkhar, Age - 70,

Occupation - Farming, House work,
B
2) Alka Shivaji Dawkher, age 47 years, Occupation household 86 Agril
3) Sudhil Shivaji Dawkher, age 28 years, Occupation :

Agril
4) Vijay Shivaji Dawkher, age 26 years, Occupation : Agril
5) Rushikesh Shivaji Dawkher, age 24 years, Occupation:
Agril
To,
Reference:-Development Plan (R) Shrirampur approved

Subject:- Purchase Notice Under Section 127 of
[2013] 2 S.C.R.
We, the undersigned
Date:- 29.5.2003
Hon. Chief Officer,

Nagar Parishad, Shrirampur,
Dist. Ahmednagar
All R/o Mahadeo Mala, Shrirampur, Ward No. 7, Dist.

Ahmednagar.
Hereby give notice under Section 127 of the above stated
Act that, the land located within the city limits of Shrirampur
out of Gat No.44 admeasuring approx. 2.5 Hectare is
owned by me and it has been reserved as Reservation
No.40 in Town Planning Scheme No.4. This reservation
has been reserved approx. 1 Acre for play ground. The
sanctioned Development Plan (R) Shrirampur of
Shrirampur City has been granted final sanction by the
Director, Town Planning (State) Pune vide their notification
no. D. P. Shrirampur (Part) R/TPV 4-2837 Dated 31/12/
91 and although more than 10 years duration has passed
after getting the final sanction to the Development Plan the
Nagar Parishad has taken no action to acquire the said
land.
Through this notice you are being notified that, in case of
your failure to take suitable action to acquire the said land
within 6 months of the receipt of the said notice the land

under reservation in Gat no. 44 shall become free from

reservation. Please take note. The said notice is being
issued in this behalf.
3.4 The notice issued by respondent Nos.1 to 5 was
considered in the meeting of the General Body of the appellant
held on 30.8.2003 and the following resolution was passed:
It is seen from the note submitted on the above subject
that the land bearing Gat No. 44, CTS No.2141 (part) within
the Municipal Limit is owned by Smt. Satyabhamabai
Davkhar, out of which 4815 sq.mtr. of area is reserved for
Play Ground, vide reservation No.40 and for Primary
School & Play Ground, vide reservation No.41. Since the
Municipal Council has not acquired the land under said
reservations after 10 years of sanction of Development
Plan, the land owner Smt. Davkhar has served the
purchase notice under section 127 of Maharastra Regional
and Town Planning Act, 1966.
The above referred lands are included in Town Planning
Scheme No.IV. But the above reservations are not included
in Draft sanctioned Town Planning Scheme No. IV. And
hence the notice served by the owner is tenable and also
if the land acquisition proposal is not submitted to the
Collector within the period of Six months from the date of
issue of notice the land will be released from reservations.
Therefore, by passing this Resolution the sanction is given
to initiate the land acquisition process for the above two
reserved sites. And accordingly the proposal should be
submitted immediately to the Collector, Ahmednagar. The
expenses that would be required for the land acquisition
and to take possession and the allied expenses are also
hereby allowed.
3.5 In furtherance of the aforesaid resolution, the President
of the appellant sent communication dated 24.12.2003 to
672
A
[2013] 2 S.C.R.
A Collector, Ahmednagar and requested him to take action for

the acquisition of land comprised in Gat No. 44, CTS No. 2141
(part). The Collector sought clarification on some issues. The
appellant did the needful vide letter dated 9.2.2004. Thereafter,
land was got measured through City Survey Officer and
B proposal dated 25.1.2007 was submitted to the Collector for
its acquisition. The Collector passed order dated 17.4.2007
under Section 52-A of the 1894 Act and authorized SubDivisional Officer, Shrirampur to take the necessary steps.
3.6 In the meanwhile, respondent Nos. 1 to 5 filed Writ
C Petition No. 4774/2006 for grant of a declaration that the
reservation of their land stood lapsed in November, 2003
because the same had not been acquired within six months of
the service of notice under Section 127 of the 1966 Act. In
support of their plea, respondent Nos. 1 to 5 relied upon the
D judgment of this Court in Girnar Traders v. State of
Maharashtra and Others (2007) 7 SCC 555 (hereinafter
referred to as Girnar Traders II) and of the Division Bench of
the Bombay High Court in Shivram Kondaji Sathe and Others
v. State of Maharashtra and Others 2009 (2) ALL MR 347.
E
3.7 The appellant contested the writ petition and pleaded
that in terms of resolution dated 30.8.2003, a proposal had
been sent to the Collector for the acquisition of land belonging
to respondent Nos. 1 to 5 and vide order dated 17.4.2007, the
F latter authorised the Sub-Divisional Officer to do the needful.
3.8 The Division Bench of the High Court relied upon the
judgments in Shivram Kondaji Sathe and Others v. State of
Maharashtra and Others (supra) and Satyabhamabai v. State
of Maharashtra and Others (2008) 1 ALL MR 399 as also the
G judgment of this Court in Girnar Traders (II) and held that
reservation of the land in question will be deemed to have
lapsed because no steps were taken for acquisition thereof
within six months of the receipt of purchase notice. The High
Court also directed the appellant to de-reserve the land so as
H to enable the respondents to develop the same.

4. We may now briefly notice the facts from the other

appeals.
674
A
Appeal arising out of SLP(C)No.8756/2009

4.1 Respondent Nos. 1 to 4 are the owners in possession
of land comprised in Gat No.92 (part) admeasuring 45,983
square meters situated at Shirasgaon within the municipal
boundary of the appellant. In the Development plan, 6,360
square meters land belonging to respondent Nos.1 to 4 was
shown as reserved for playground. They issued purchase notice
dated 20.6.2002 under Section 127 of the 1966 Act. Thereafter,
the General Body of the appellant passed resolution dated
3.8.2002 for sending a proposal to the District Collector for
initiation of the acquisition proceedings. After six months, the
appellant sent detailed proposal dated 6.12.2002 to the District
Collector for acquiring the land, but no concrete step was taken
in that regard.
4.2 Writ Petition No. 3626/2006 was filed by respondent
Nos. 1 to 4 for de-reservation of their land on the ground that
the same had not been acquired within ten years of
enforcement of the Development plan and expiry of six months
counted from the date of receipt of purchase notice. The
Division Bench of the High Court referred to the judgment of
this Court in Girnar Traders (II) and allowed the writ petition by
making the following observations:
In face of clear dictum of the Supreme Court we have no
hesitation in rejecting the contention raised on behalf of
Respondents that they started acquisition proceedings
after receipt of purchase notice under Section 127 of the
said Act within time. In fact when the present Writ Petition
came up for admission after long period from the date of
filing, counsel appearing on behalf of Respondents
informed that till this date acquisition proposal is pending
with the Collector. To that effect we can safely rely on letter
dated 21/7/2006 from -Respondent No.5 to Respondent
[2013] 2 S.C.R.
No.2 forwarding some documents for the purpose of

starting acquisition proceedings in respect of Petitioners
plot of land. Said letter is at page 36 in the present Petition.
Even though Respondent No.5 filed their affidavit in reply
dated 21/11 /2006 nowhere they stated that they complied
the notice under Section 127 of the said Act issued by the
Petitioners. Therefore, it is crystal clear that the
Respondents failed to acquire the Petitioners property in
question within particular time as per MRTP Act.
5. The facts of this appeal are identical to the appeal
arising out of SLP(C) No.9934/2009. The only difference is that
this appeal pertains to the land comprised in Gat No.44/2
admeasuring 5,536 square meters.

6. Delay condoned.
6.1 In the Development plan for Greater Mumbai, which

was
sanctioned
on 23.12.1991, land comprised in CS 231 and
E
1/231, Byculla Division, Maulana Azad Road, E-Ward, Mumbai
admeasuring 2,526.78 square meters was shown as reserved
for recreation ground.
6.2 Respondent No.1 Prabhat (Stove and Lamp) Products
Company Pvt. Ltd., which owns the land, issued purchase
notice dated 7.12.2005 to the Planning Authority, i.e., Municipal
Corporation of Greater Mumbai (MCGM) under Section 127 of
the 1966 Act. There is some dispute about receipt of the notice
by the competent authority but it is an admitted position that
G vide letter dated 15.12.2005, the Municipal Commissioner of
MCGM asked the Improvement Committee to initiate the
acquisition proceedings. On 3.6.2006, the Planning Authority
submitted a proposal to the State Government for taking action
in accordance with Section 126(1)(c) of the 1966 Act. The State
H Government issued notification dated 19.1.2007 under Section
F

126(2) and (4) of the 1966 Act read with Section 6 of the 1894
Act.
6.3 Writ Petition No. 2303/2007 filed by respondent Nos.
1 and 2 for quashing Notification dated 19.1.2007 was allowed
by the High Court by relying upon the judgment of this Court in
Girnar Traders (II).
676
7.2 Respondent Sahyadri Land Development

Corporation, which owned the land, issued purchase notice
dated 17.6.2010 under Section 127 of the 1966 Act, but the
Planning Authority did not take steps for the acquisition of land.
Writ Petition No. 4457/2011 filed by the respondent was
allowed by the High Court by relying upon the judgment of this
Court in Girnar Traders (II) and the respondent was allowed to
develop the land.
A 18.5.1995 and invited objections against the proposed dereservation of the plot and its inclusion in the residential zone.
However, no final decision was taken in the matter in view of
circular dated 21.12.1995 issued by the State Government.
8.2 After 14 years, the Standing Committee of the

Corporation, in its meeting held on 2.6.2009, decided to take
steps for the acquisition of land belonging to respondent Nos.
1 and 2. This decision was approved by the General Body of
the Corporation vide resolution dated 23.7.2009. In compliance
of that resolution, Deputy Chief Engineer of the Corporation
C sent letter dated 10.8.2009 to the Special Land Acquisition
Officer to sanction initiation of the acquisition proceedings. On
20.5.2010, respondent Nos. 1 and 2 issued purchase notice
under Section 127 of the 1966 Act. Thereafter, they filed Writ
Petition No.9895/2011 for grant of a declaration that reservation
D of their plot has lapsed because the same was not acquired
within six months of the receipt of purchase notice. The Division
Bench of the High Court allowed the writ petition and declared
that reservation of land belonging to respondent Nos. 1 and 2
will be deemed to have lapsed because steps were not taken
E for acquisition thereof.

8.1 In the Development plan sanctioned for Pune Municipal
Corporation, plot bearing CTS No.1135 (old 54) owned by
respondent Nos.1 and 2 situated at Sadashiv Peth was shown
as reserved for childrens playground. After three years, the
Commissioner inspected the site and opined that the same
was not suitable for the purpose for which it was shown as
reserved. Thereupon, the Corporation passed resolution dated
19.4.1990 for de-reservation of the plot. The State Government
sanctioned the de-reservation in September, 1992 and directed
the Commissioner of the Corporation to take necessary action
under Section 37 of the 1966 Act. The latter issued notice dated
[2013] 2 S.C.R.

7.1 In the Development plan sanctioned for Pune Municipal
Corporation, which was notified on 5.1.1997, Plot No. 59, Gat
No.17 situated at Kondhwa Khurd, Pune admeasuring 4,400
square meters was shown as reserved for construction of
childrens park.
9. The facts of this appeal are substantially similar to that

of the appeal arising out of SLP (C) No. 36117/2012 except
F that the plot owned by respondent Nos.1 to 5 is CST No.1134,
Sadashiv Peth, Pune admeasuring 567.72 square meters
whereas the plot which is subject matter of the other SLP is
CST No.1135, Sadashiv Peth, Pune. The reservation of CST
No.1134 was for childrens playground. The High Court allowed
G Writ Petition No.9895/2011 filed by respondent Nos.1 to 5 on
the ground that the land had not been acquired within six months
of the receipt of purchase notice issued under Section 127 of
the 1966 Act.
H


10. In the Development plan of Shrirampur (part) (revised),
land bearing Gat No.108 (74 Are) belonging to respondent
No.1 was shown as reserved for garden and he was given
alternative plot in Gat No.92 (part). However, that Gat was also
reserved for playground/stadium. After nine years, the State
Government in exercise of the power vested in it under Section
86 (1) of the 1966 Act sanctioned the Town Planning Scheme.
Respondent No.1 issued notice dated 5.1.2002 under Section
127 of the 1966 Act. The same was received in the office of
the appellant on 8.1.2002. The General Body of the appellant
passed resolution dated 2.5.2002 whereby approval was
accorded to the acquisition of land comprised in Gat No.92
(part). Accordingly, letter dated 28.6.2002 was sent to District
Collector, Ahmednagar for initiation of the acquisition
proceedings. Writ Petition No.3399/2007 filed by respondent
No.1 for grant of a declaration that reservation of his plot had
lapsed on account of the Planning Authoritys failure to take
steps for the acquisition of land within six months of the receipt
of purchase notice was allowed by the Division Bench of the
High Court vide order dated 27.7.2012.
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[2013] 2 S.C.R.
A their land had lapsed because of the Planning Authoritys failure

to acquire the land within six months of the receipt of purchase
notice.
Appeal arising out of SLP(C)................CC No.17030/2012
12.1 The factual matrix of the case is similar to the appeal

arising out of SLP (C) No.26103/2012. Respondent Nos.1 and
2 issued purchase notice, which was received by the
competent authority sometime in December, 2007. In the next
C six months no steps were taken for the acquisition of land.
Therefore, by applying the ratio of Girnar Traders (II), the High
Court declared that the reservation of the land belonging to
respondent Nos.1 and 2 has lapsed.
D Arguments

11. In the Development plan of Shrirampur, Gat Nos. 91
and 92 (part) belonging to respondent Nos.1 to 4 were shown
as reserved for vegetable market and shopping centre and
also for library and cultural centre. The Town Planning Scheme
was sanctioned by the State Government on 22.9.1999. Some
of the owners issued purchase notice dated 2.8.2002.
Thereupon, the General Body of the appellant passed
resolution dated 14.10.2002 for commencement of the
acquisition proceedings. On 27.1.2003, the appellant sent
requisition to the District Collector for the acquisition of land
owned by respondent Nos.1 to 4. Writ Petition No.1314/2012
filed by them was allowed by the Division Bench of the High
Court on 26.7.2012 and it was declared that the reservation of
12. Delay condoned.
13. Shri Shekhar Naphade, learned senior counsel

appearing for some of the appellants, argued that the majority
judgment in Girnar Traders (II) deserves to be considered by a
larger Bench because the same is contrary to the plain
E language of Section 127 of the 1966 Act and the earlier
judgment in Municipal Corporation of Greater Bombay v. Dr.
Hakimwadi Tenants Association 1988 (Supp) SCC 55.
Learned senior counsel then referred to the order reported as
Poona Timber Merchants and Saw Mill Owners Association
F v. State of Maharashtra and Others 2008 (4) SCALE 737 and
other orders by which directions were given for hearing of some
of the special leave petitions along with Civil Appeal No.3703/
2003 and Civil Appeal No. 3922/2007 and argued that in view
of the judgment of the Constitution Bench in Girnar Traders v.
G State of Maharashtra (2011) 3 SCC 1 (hereinafter referred to
as Girnar Traders (III)), the question arising in these appeals
should be referred to a Constitution Bench. Shri Naphade further
argued that the reservation of the respondents land cannot be
treated to have lapsed on the expiry of six months from the date
H of receipt of purchase notices because in the meanwhile, the

appellants had passed resolutions and sent communications

to the District Collector to commence the acquisition
proceedings and this amounted to taking of steps within the
meaning of Section 127 read with Section 126(1)(c) of the
1966 Act. Learned senior counsel submitted that the
expression no steps as aforesaid are commenced appearing
in Section 127 must take their colour from Clause (c) of Section
126(1) and, therefore, making of an application by the Planning
Authority or sending of a communication to the District
Magistrate to start the acquisition proceedings must be treated
as sufficient to avert the consequence envisaged under Section
127 of the 1966 Act. Shri Naphade relied upon the Constitution
Bench judgment in Girnar Traders (III) and argued that in view
of the proposition laid down therein that Section 11A of the 1894
Act, which provides that the acquisition proceedings will lapse
if the award is not passed within two years from the date of
publication of the declaration made under Section 6(1) of that
Act, is not applicable to the scheme of the 1966 Act, the period
of six months specified in Section 127 of that Act cannot be
treated as sacrosanct and there cannot be deemed lapsing of
the reservation merely because the State Government and/or
its delegate fails to initiate proceedings for the acquisition of
land covered by the Regional plan/Development plan. Other
learned counsel adopted the arguments of Shri Naphade.
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14. Learned counsel for the private respondents supported

the impugned orders and argued that the majority view in Girnar F
Traders (II) cannot be ignored on the ground that it is
inconsistent with the earlier judgment in Dr. Hakimwadi Tenants
Association (supra) because that judgment had been
considered and explained in the subsequent judgment.
Relevant Provisions
15. Section 2 of the 1966 Act contains definitions of various

terms including Development Authority, Development plan,
local authority, and Planning Authority. Section 21(1) imposes
a duty on every Planning Authority to carry out a survey, prepare H
[2013] 2 S.C.R.
an existing land-use map and a draft Development plan for the

area within its jurisdiction in accordance with the provisions of
a Regional plan, where there is such a plan and submit the
same to the State Government for sanction. Section 21(2) lays
down that every Planning Authority constituted after the
commencement of the Act shall prepare a draft Development
plan within a maximum period of three years. Section 21(4)
provides that if the Planning Authority fails to perform its duty
in accordance with Section 21(1) or (2), an officer appointed
by the State Government shall do the needful and recover the
cost thereof from the funds of the Planning Authority. Section
22 enumerates the contents of a Development plan. Clauses
(b) and (c) of that section read as under:
22. Contents of Development Plan.- A Development
plan shall generally indicate the manner in which the use
of land in the area of the Planning Authority shall be
regulated, and also indicate the manner in which the
development of land therein shall be carried out. In
particular, it shall provide so far as may be necessary for
all or any of the following matters, that is to say,(b) proposals for designation of land for public purpose,
such as schools, colleges and other educational
institutions, medical and public health institutions, markets,
social welfare and cultural institutions, theatres and places
for public entertainment, or public assembly, museums, art
galleries, religious buildings and government and other
public buildings as may from time to time be approved by
the State Government;
(c) proposals for designation of areas for open spaces,
playgrounds, stadia, zoological gardens, green belts,
nature reserves, sanctuaries and dairies;
Sections 23 to 31 lay down the procedure to be followed in the
preparation and sanction of Development plans. Section 25
prescribes the outer limit of six months, counted from the date

of the declaration of intention of a Planning Authority to prepare

a Development plan for the purpose of carrying out a survey of
the lands within its jurisdiction and preparation of an existing
land-use map. Section 26 prescribes an outer limit of two years
from the date of publication of notice under Section 23 for
preparation of a draft Development plan and publication of
notice in the Official Gazette. In either case, the State
Government can extend the time prescribed by the statute
subject to the condition that the time specified in Section 26
cannot be extended for more than six months in aggregate.
Section 28(4) (un-amended) contained a limitation of three
months within which the Planning Committee was required to
consider the report of the Planning Authority or the concerned
officer including the objections and suggestions received by it
or him. In terms of Section 30, the Planning Authority is required
to submit the draft Development plan to the State Government
within a period of twelve months. Section 31 (un-amended) laid
down an outer limit of one year for sanction or return of the draft
Development plan. Proviso to Section 31(1) empowered the
State Government to extend the period for sanction of the draft
Development plan or refusal thereof. Section 31(5) lays down
that if a Development plan contains any proposal for the
designation of any land for a purpose specified in Clauses (b)
and (c) of Section 22 and if such land does not vest in the
Planning Authority, the State Government shall not include that
land in the Development plan, unless it is satisfied that the
Planning Authority will be able to acquire the same by private
agreement or compulsory acquisition within a period of 10
years from the date on which the Development plan comes into
operation. Section 32 postulates preparation of interim
Development plan and Section 33 provides for plan or plans
showing proposals for development of any area or areas.
Section 34 postulates preparation of a Development plan for
additional area. Section 35 contains a fiction and provides that
a Development plan duly sanctioned by the State Government
before the commencement of the 1966 Act shall be deemed
to be a final Development plan. Section 37 contains the
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A procedure for modification of the final Development plan.

Section 38 lays down that the Development plan should be
revised at least once in 20 years. If the State Government so
directs, the Development plan can be revised even before the
expiry of 20 years. Chapter IV of the 1966 Act (Sections 43 to
B 58) contains provisions relating to control of development and
use of land included in the Development plans. Chapter V
(Sections 59 to 112) deals with Town Planning Schemes and
Chapter VII (Sections 125 to 129) contains provisions for
compulsory acquisition of land needed for a Regional plan,
C Development plan or Town Planning Scheme.
16. Section 126, which provides for the acquisition of land

required or reserved for any of the public purposes specified
in any plan or scheme prepared under the 1966 Act and
Section 127, which envisages lapsing of reservation in certain
D contingencies read as under:
Section 126. Acquisition of land required for public

purposes specified in plans. - (1) When after the
publication of a draft Regional Plan, a Development or any
other plan or town planning scheme, any land is required
or reserved for any of the public purposes specified in any
plan or scheme under this Act at any time the Planning
Authority, Development Authority, or as the case may be,
any Appropriate Authority may, except as otherwise
provided in section 113A acquire the land,(a) by an agreement by paying an amount agreed to, or
(b) in lieu of any such amount, by granting the land-owner

or the lessee, subject, however, to the lessee paying the
lessor or depositing with the Planning Authority,
Development Authority or Appropriate Authority, as the
case may be, for payment to the lessor, an amount
equivalent to the value of the lessors interest to be
determined by any of the said Authorities concerned on
the basis of the principles laid down in the Land

Acquisition Act, 1894, Floor Space Index (FSI) or

Transferable Development Rights (TDR) against the area
of land surrendered free of cost and free from all
encumbrances, and also further additional Floor Space
Index or Transferable Development Rights against the
development or construction of the amenity on the
surrendered land at his cost, as the Final Development
Control Regulations prepared in this behalf provide, or
(c) by making an application to the State Government for
acquiring such land under the Land Acquisition Act, 1894,
and the land (together with the amenity, if any, so
developed or constructed) so acquired by agreement or
by grant of Floor Space Index or additional Floor Space
Index or Transferable Development Rights under this
section or under the Land Acquisition Act, 1894, as the
case may be, shall vest in the Planning Authority.
Development Authority, or as the case may be, any
Appropriate Authority.
(2) On receipt of such application, if the State Government
is satisfied that the land specified in the application is
needed for the public purpose therein specified, or if the
State Government (except in cases falling under section
49 and except as provided in section 113A) itself is of
opinion that any land in any such plan is needed for any
public purpose, it may make a declaration to that effect in
the Official Gazette, in the manner provided in section 6
of the Land Acquisition Act, 1894 (1 of 1894), in respect
of the said land. The declaration so published shall,
notwithstanding anything contained in the said Act, be
deemed to be a declaration duly made under the said
section:
Provided that, subject to the provisions of sub-section (4),
no such declaration shall be made after the expiry of one
year from the date of publication of the draft Regional Plan,
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Development Plan or any other Plan, or Scheme, as the

case may be.
(3) On publication of a declaration under the said section
6, the Collector shall proceed to take order for the
acquisition of the land under the said Act; and the
provisions of that Act shall apply to the acquisition of the
said land, with the modification that the market value of the
land shall be,(i) where the land is to be acquired for the purposes of a
new town, the market value prevailing on the date of
publication of the notification constituting or declaring the
Development Authority for such town;
(ii) where the land is acquired for the purposes of a Special
Planning Authority, the market value prevailing on the date
of publication of the notification of the area as an
undeveloped area; and
(iii) in any other case the market value on the date of
publication of the interim development plan, the draft
development plan, or the plan for area or areas for
comprehensive development, whichever is earlier, or as
the case may be, the date or publication of the draft town
planning scheme:
Provided that, nothing in this sub-section shall affect the

date for the purposes of determining the market value of
land in respect of which proceedings for acquisition
commenced before the commencement of the
Maharashtra Regional and Town Planning (Second
Amendment) Act, 1972 (Mah. XI of 1973):
Provided further that, for the purpose of clause (ii) of this

sub-section, the market value in respect of land included
in any undeveloped area notified under subsection (1) of
section 40 prior to the commencement of the Maharashtra
Regional and Town Planning (Second Amendment) Act,

1972 (Mah. XI of 1973), shall be the market value prevailing

on the date of such commencement.
(4) Notwithstanding anything contained in the proviso to
sub-section (2) and in subsection (3), if a declaration is
not made within the period referred to in subsection (2) or
having been made, the aforesaid period expired at the
commencement of the Maharashtra Regional Town
Planning (Amendment) Act, 1993, the State Government
may make a fresh declaration for acquiring the land under
the Land Acquisition Act, 1894 (I of 1894), in the manner
provided by sub-sections (2) and (3) of this section, subject
to the modification that the market value of the land shall
be the market value at the date of declaration in the Official
Gazette made for acquiring the land afresh.
Section 127. Lapsing of reservation
If any land reserved, allotted or designated for any purpose
specified in any plan under this Act is not acquired by
agreement within ten years from the date on which a final
Regional plan, or final Development plan comes into force
or if proceedings for the acquisition of such land under this
Act or under the Land Acquisition Act, 1894 (1 of 1894),
are not commenced within such period, the owner or any
person interested in the land may serve notice on the
Planning Authority, Development Authority or as the case
may be, Appropriate Authority to that effect, and if within
six months from the date of service of such notice, the land
is not acquired or no steps as aforesaid are commenced
for its acquisition, the reservation, allotment or designation
shall be deemed to have lapsed, and thereupon, the land
shall be deemed to be released from such reservation,
allotment or designation and shall become available to the
owner for the purpose of development as otherwise,
permissible in the case of adjacent land under the relevant
plan.
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A Analysis of Sections 126 and 127 of the 1966 Act
17. Section 126(1) lays down that when any land is required
or reserved for any of the public purposes specified in any plan
or scheme, the Planning Authority, Development Authority, or
any Appropriate Authority can acquire the same by an
agreement by paying an agreed amount, or by granting the
landowner or the lessee Floor Space Index or Transferable
Development Rights in lieu of the area of land surrendered free
of cost and free from all encumbrances and further additional
Floor Space Index or Transferable Development Rights against
the development or construction of the amenities on the
surrendered land at his cost, or by making an application to the
State Government for acquiring such land under the 1894 Act.
Once the land is acquired by an agreement under Section
126(1)(a) or by grant of Floor Space Index or additional Floor
Space Index or Transferable Development Rights under
Section 126(1)(b) or under the 1894 Act, the same vests in the
Planning Authority, Development Authority or Appropriate
Authority, as the case may be. Section 126(2) empowers the
State Government to make a declaration under Section 6 of
the 1894 Act. Proviso to this sub-section fixes the time limit of
one year for making such declaration. Section 126(3) lays
down that on publication of a declaration under Section 6 of
the 1894 Act, the Collector shall proceed to take order for the
acquisition of the land under the 1894 Act and the provisions
of that Act shall apply to such acquisition with the modification
regarding market value as specified in Clauses (i) to (iii) of that
sub-section. Section 126(4) contains a non obstante clause
and provides that if a declaration is not made within the period
referred to in sub-section (2), or having been made, such period
expired at the commencement of the Maharashtra Regional
Town Planning (Amendment) Act, 1993, the State Government
can make fresh declaration under the 1894 Act. This is subject
to the rider that in such an event, market value of the acquired
land shall be determined with reference to the date of fresh
declaration. Section 127 speaks of lapsing of reservation. It

lays down that if any land reserved, allotted or designated for

any purpose specified in any plan prepared and sanctioned
under the 1966 Act is not acquired by agreement within ten
years from the date on which a final Regional plan or final
Development plan comes into force or if proceedings for the
acquisition of such land under the 1966 Act read with the 1894
Act are not commenced within that period, the owner or any
person interested in the land may serve notice on the Planning
Authority, Development Authority or Appropriate Authority to
that effect. That section further lays down that if the land is not
acquired or no steps are commenced for its acquisition within
six months from the date of service of notice, the reservation
etc. shall be deemed to have lapsed and the land shall be
deemed to have been released from such reservation etc. so
as to enable the owner to develop the same.
18. The scope of Sections 126 and 127 of the 1966 Act
was considered by a two-Judge Bench in Dr. Hakimwadi
Tenants Association (supra). The facts of that case were that
the Planning Authority had published a draft Development plan
in respect of D ward showing the property belonging to late
Dr. Eruchshaw Jamshedji Hakim as reserved for recreation
ground. The final Development plan was made effective from
7.2.1967. However, no action was taken for the acquisition of
land. The owner served purchase notice dated 1.7.1977 on the
Commissioner of the Corporation. After about six months, the
Corporation passed resolution dated 10.1.1978 for the
acquisition of land and sent an application to the State
Government for taking necessary steps. Thereupon the State
Government issued Notification dated 7.4.1978 under Section
6 of the 1894 Act. The writ petition filed by Dr. Hakimwadi
Tenants Association for quashing the notification was allowed
by the learned Single Judge of the Bombay High Court, who
held that the acquisition proceedings commenced by the State
Government under Section 126(2) at the instance of the
Planning Authority were not valid because steps were not taken
for the acquisition of land under Section 126(1) of the 1966 Act
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A read with Section 6 of the 1894 Act within the prescribed time.
The learned Single Judge observed that the period of six
months prescribed under Section 127 began to run from the
date of service of purchase notice and the Corporation had to
take steps to acquire the property before 4.1.1978, which was
B not done. The Division Bench of the High Court approved the
view taken by the learned Single Judge and held that the most
crucial step was the application to be made by the Corporation
to the State Government under Section 126(1) of the 1966 Act
for the acquisition of land and such step ought to have been
C taken within the period of six months commencing from
4.7.1977. This Court expressed agreement with the counsel for
the Corporation that the words six months from the date of
service of such notice used in Section 127 of the 1966 Act
were not susceptible to a literal construction, but observed:
8. .it must be borne in mind that

the period of six months provided by Section 127 upon the
expiry of which the reservation of the land under a
Development Plan lapses, is a valuable safeguard to the
citizen against arbitrary and irrational executive action.
Section 127 of the Act is a fetter upon the power of
eminent domain. By enacting Section 127 the legislature
has struck a balance between the competing claims of the
interests of the general public as regards the rights of an
individual.
(emphasis supplied)
The Court then made detailed analysis of Section 127 of the
1966 Act and held:
10. Another safeguard provided is the one under Section

127 of the Act. It cannot be laid down as an abstract
proposition that the period of six months would always
begin to run from the date of service of notice. The
Corporation is entitled to be satisfied that the purchase
notice under Section 127 of the Act has been served by

the owner or any person interested in the land. If there is A

no such notice by the owner or any person, there is no
question of the reservation, allotment or designation of the
land under a development plan of having lapsed. It a
fortiori follows that in the absence of a valid notice under
Section 127, there is no question of the land becoming B
available to the owner for the purpose of development or
otherwise. In the present case, these considerations do not
arise. We must hold in agreement with the High Court that
the purchase notice dated July 1, 1977 served by
Respondents 4-7 was a valid notice and therefore with the C
failure of the appellant to take any steps for the acquisition
of the land within the period of six months therefrom, the
reservation of the land in the Development Plan for a
recreation ground lapsed and consequently, the impugned
notification dated April 7, 1978 under Section 6 of the Land
D
Acquisition Act issued by the State Government must be
struck down as a nullity.
11. Section 127 of the Act is a part of the law for
acquisition of lands required for public purposes, namely,
for implementation of schemes of town planning. The E
statutory bar created by Section 127 providing that
reservation of land under a development scheme shall
lapse if no steps are taken for acquisition of land within a
period of six months from the date of service of the
purchase notice, is an integral part of the machinery F
created by which acquisition of land takes place. The word
aforesaid in the collocation of the words no steps as
aforesaid are commenced for its acquisition obviously
refer to the steps contemplated by Section 126(1). The
effect of a declaration by the State Government under sub- G
section (2) thereof, if it is satisfied that the land is required
for the implementation of a regional plan, development
plan or any other town planning scheme, followed by the
requisite declaration to that effect in the official Gazette,
in the manner provided by Section 6 of the Land H
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Acquisition Act, is to freeze the prices of the lands affected.

The Act lays down the principles of fixation by providing
firstly, by the proviso to Section 126(2) that no such
declaration under sub-section (2) shall be made after the
expiry of three years from the date of publication of the draft
regional plan, development plan or any other plan,
secondly, by enacting sub-section (4) of Section 126 that
if a declaration is not made within the period referred to
in sub-section (2), the State Government may make a fresh
declaration but, in that event, the market value of the land
shall be the market value at the date of the declaration
under Section 6 and not the market value at the date of
the notification under Section 4, and thirdly, by Section 127
that if any land reserved, allotted or designated for any
purpose in any development plan is not acquired by
agreement within 10 years from the date on which a final
regional plan or development plan comes into force or if
proceedings for the acquisition of such land under the Land
Acquisition Act are not commenced within such period,
such land shall be deemed to be released from such
reservation, allotment or designation and become
available to the owner for the purpose of development on
the failure of the Appropriate Authority to initiate any steps
for its acquisition within a period of six months from the
date of service of a notice by the owner or any person
interested in the land. It cannot be doubted that a period
of 10 years is long enough. The Development or the
Planning Authority must take recourse to acquisition with
some amount of promptitude in order that the
compensation paid to the expropriated owner bears a just
relation to the real value of the land as otherwise, the
compensation paid for the acquisition would be wholly
illusory. Such fetter on statutory powers is in the interest
of the general public and the conditions subject to which
they can be exercised must be strictly followed.
(emphasis supplied)

19. The same issue was again considered in Girnar A

Traders (II). S.P. Building Corporation was the owner of a piece
of land bearing City Sy. No. 18/738 admeasuring about
5387.35 square yards situated at Carmichael Road, Malabar
Hill Division, Mumbai. The Development plan prepared by
Bomba Municipal Corporation was sanctioned by the State B
Government on 6.1.1967 and was enforced on 7.2.1967. The
belonging to S.P. Building Corporation was notified as open
space and childrens park. After coming into force of the 1966
Act, the landowners served notice under Section 127 of that
Act for de-reservation of the land. Two similar notices were C
issued by S.P. Building Corporation on 18.10.2000 and
15.3.2002. after about eight months the State Government
issued notification dated 20.11.2002 under Section 126(2) and
(4) of the 1966 Act read with Section 6 of the 1894 Act. Writ
Petition No.353/2005 filed by S.P. Building Corporation
D
questioning the notification issued by the State Government was
dismissed by the Division Bench of the High Court by observing
that Resolution dated 9.9.2002 passed by the Improvement
Committee of the Municipal Corporation would constitute a step
as contemplated by Section 127 of the 1966 Act. The Division
Bench further held that Section 11A of the 1894 Act, as E
amended, is not applicable to the proceedings initiated for the
acquisition of land under the 1966 Act. Civil Appeal No.3922/
2007 filed by S.P. Building Corporation was decided by the
three Judge Bench along with Civil Appeal No.3703/2003 Girnar Traders v. State of Maharashtra. Speaking for the F
majority, P.P. Naolekar, J., referred to the relevant provisions
of the 1966 Act including Sections 126 and 127, and observed:
31. Section 127 prescribes two time periods. First, a
period of 10 years within which the acquisition of the land G
reserved, allotted or designated has to be completed by
agreement from the date on which a regional plan or
development plan comes into force, or the proceedings for
acquisition of such land under the MRTP Act or under the
LA Act are commenced. Secondly, if the first part of H
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[2013] 2 S.C.R.
Section 127 is not complied with or no steps are taken,

then the second part of Section 127 will come into
operation, under which a period of six months is provided
from the date on which the notice has been served by the
owner within which the land has to be acquired or the steps
as aforesaid are to be commenced for its acquisition. The
six-month period shall commence from the date the owner
or any person interested in the land serves a notice on the
planning authority, development authority or appropriate
authority expressing his intent claiming dereservation of
the land. If neither of the things is done, the reservation
shall lapse. If there is no notice by the owner or any person
interested, there is no question of lapsing reservation,
allotment or designation of the land under the development
plan. Second part of Section 127 stipulates that the
reservation of the land under a development scheme shall
lapse if the land is not acquired or no steps are taken for
acquisition of the land within the period of six months from
the date of service of the purchase notice. The word
aforesaid in the collocation of the words no steps as
aforesaid are commenced for its acquisition obviously
refers to the steps contemplated by Section 126 of the
MRTP Act.
If no proceedings as provided under Section 127 are
taken and as a result thereof the reservation of the land
lapses, the land shall be released from reservation,
allotment or designation and shall be available to the
owner for the purpose of development. The availability of
the land to the owner for the development would only be
for the purpose which is permissible in the case of adjacent
land under the relevant plan. Thus, even after the release,
the owner cannot utilise the land in whatever manner he
deems fit and proper, but its utilisation has to be in
conformity with the relevant plan for which the adjacent
lands are permitted to be utilised.
(emphasis supplied)

Naolekar, J. then referred to the judgment in Dr. Hakimwadi

Tenants Association (supra) and proceeded to observed:
52. .Thus, after perusing the judgment in
Municipal Corpn. of Greater Bombay case we have found
that the question for consideration before the Court in
Municipal Corpn. of Greater Bombay case has reference
to first step required to be taken by the owner after lapse
of 10 years period without any step taken by the authority
for acquisition of land, whereby the owners of the land
served the notice for dereservation of the land. The Court
was not called upon to decide the case on the substantial
step, namely, the step taken by the authority within six
months of service of notice by the owners for dereservation
of their land which is second step required to be taken by
the authority after service of notice.
53. The observations of this Court regarding the linking of
word aforesaid from the wordings no steps as aforesaid
are commenced for its acquisition of Section 127 with the
steps taken by the competent authority for acquisition of
land as provided under Section 126(1) of the MRTP Act,
had no direct or substantial nexus either with the factual
matrix or any of the legal issues raised before it. It is
apparent that no legal issues, either with respect to
interpretation of words no steps as aforesaid are
commenced for its acquisition as stipulated under the
provisions of Section 127 or any link of these words with
steps to be taken on service of notice, were contended
before the Court. Thus, observations of the Court did not
relate to any of the legal questions arising in the case and,
accordingly, cannot be considered as the part of ratio
decidendi. Hence, in light of the aforementioned judicial
pronouncements, which have well settled the proposition
that only the ratio decidendi can act as the binding or
authoritative precedent, it is clear that the reliance placed
on mere general observations or casual expressions of the
Court, is not of much avail to the respondents.
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[2013] 2 S.C.R.
54. When we conjointly read Sections 126 and 127 of the

MRTP Act, it is apparent that the legislative intent is to
expeditiously acquire the land reserved under the Town
Planning Scheme and, therefore, various periods have
been prescribed for acquisition of the owners property.
The intent and purpose of the provisions of Sections 126
and 127 has been well explained in Municipal Corpn. of
Greater Bombay case. If the acquisition is left for time
immemorial in the hands of the authority concerned by
simply making an application to the State Government for
acquiring such land under the LA Act, 1894, then the
authority will simply move such an application and if no
such notification is issued by the State Government for one
year of the publication of the draft regional plan under
Section 126(2) read with Section 6 of the LA Act, wait for
the notification to be issued by the State Government by
exercising suo motu power under sub-section (4) of
Section 126; and till then no declaration could be made
under Section 127 as regards lapsing of reservation and
contemplated declaration of land being released and
available for the landowner for his utilisation as permitted
under Section 127. Section 127 permitted inaction on the
part of the acquisition authorities for a period of 10 years
for dereservation of the land. Not only that, it gives a further
time for either to acquire the land or to take steps for
acquisition of the land within a period of six months from
the date of service of notice by the landowner for
dereservation. The steps towards commencement of the
acquisition in such a situation would necessarily be the
steps for acquisition and not a step which may not result
into acquisition and merely for the purpose of seeking time
so that Section 127 does not come into operation.
56. The underlying principle envisaged in Section 127 of

the MRTP Act is either to utilise the land for the purpose it
is reserved in the plan in a given time or let the owner
utilise the land for the purpose it is permissible under the

town planning scheme. The step taken under the section

within the time stipulated should be towards acquisition of
land. It is a step of acquisition of land and not step for
acquisition of land. It is trite that failure of authorities to take
steps which result in actual commencement of acquisition
of land cannot be permitted to defeat the purpose and
object of the scheme of acquisition under the MRTP Act
by merely moving an application requesting the
Government to acquire the land, which Government may
or may not accept. Any step which may or may not
culminate in the step for acquisition cannot be said to be
a step towards acquisition.
57. It may also be noted that the legislature while enacting
Section 127 has deliberately used the word steps (in
plural and not in singular) which are required to be taken
for acquisition of the land. On construction of Section 126
which provides for acquisition of the land under the MRTP
Act, it is apparent that the steps for acquisition of the land
would be issuance of the declaration under Section 6 of
the LA Act. Clause (c) of Section 126(1) merely provides
for a mode by which the State Government can be
requested for the acquisition of the land under Section 6
of the LA Act. The making of an application to the State
Government for acquisition of the land would not be a step
for acquisition of the land under reservation. Sub-section
(2) of Section 126 leaves it open to the State Government
either to permit the acquisition or not to permit,
considering the public purpose for which the acquisition
is sought for by the authorities. Thus, the steps towards
acquisition would really commence when the State
Government permits the acquisition and as a result thereof
publishes the declaration under Section 6 of the LA Act.
58. The MRTP Act does not contain any reference to
Section 4 or Section 5-A of the LA Act. The MRTP Act
contains the provisions relating to preparation of regional
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[2013] 2 S.C.R.
plan, the development plan, plans for comprehensive

developments, town planning schemes and in such plans
and in the schemes, the land is reserved for public purpose.
The reservation of land for a particular purpose under the
MRTP Act is done through a complex exercise which
begins with land use map, survey, population studies and
several other complex factors. This process replaces the
provisions of Section 4 of the LA Act and the inquiry
contemplated under Section 5-A of the LA Act. These
provisions are purposely excluded for the purposes of
acquisition under the MRTP Act. The acquisition
commences with the publication of declaration under
Section 6 of the LA Act. The publication of the declaration
under sub-sections (2) and (4) of Section 126 read with
Section 6 of the LA Act is a sine qua non for the
commencement of any proceedings for acquisition under
the MRTP Act. It is Section 6 declaration which would
commence the acquisition proceedings under the MRTP
Act and would culminate into passing of an award as
provided in sub-section (3) of Section 126 of the MRTP
Act. Thus, unless and until Section 6 declaration is issued,
it cannot be said that the steps for acquisition are
commenced.
59. There is another aspect of the matter. If we read
Section 126 of the MRTP Act and the words used therein
are given the verbatim meaning, then the steps
commenced for acquisition of the land would not include
making of an application under Section 126(1)(c) or the
declaration which is to be made by the State Government
under sub-section (2) of Section 126 of the MRTP Act.
60. On a conjoint reading of sub-sections (1), (2) and (4)
of Section 126, we notice that Section 126 provides for
different steps which are to be taken by the authorities for
acquisition of the land in different eventualities and within
a particular time span. Steps taken for acquisition of the

land by the authorities under Clause (c) of Section 126(1)

have to be culminated into Section 6 declaration under the
LA Act for acquisition of the land in the Official Gazette,
within a period of one year under the proviso to sub-section
(2) of Section 126. If no such declaration is made within
the time prescribed, no declaration under Section 6 of the
LA Act could be issued under the proviso to sub-section
(2) and no further steps for acquisition of the land could
be taken in pursuance of the application moved to the State
Government by the planning authority or other authority.
61. Proviso to sub-section (2) of Section 126 prohibits
publication of the declaration after the expiry of one year
from the date of publication of draft regional plan,
development plan or any other plan or scheme. Thus, from
the date of publication of the draft regional plan, within one
year an application has to be moved under Clause (c) of
Section 126(1) which should culminate into a declaration
under Section 6 of the LA Act. As per the proviso to subsection (2) of Section 126, the maximum period permitted
between the publication of a draft regional plan and
declaration by the Government in the Official Gazette under
Section 126(2) is one year. In other words, during one year
of the publication of the draft regional plan, two steps need
to be completed, namely, (i) application by the appropriate
authority to the State Government under Section 126(1)(c);
and (ii) declaration by the State Government on receipt of
the application mentioned in Clause (c) of Section 126(1)
on satisfaction of the conditions specified under Section
126(2). The only exception to this provision has been given
under Section 126(4).
(emphasis supplied)
20. In our view, there is no conflict between the judgments
of the two-Judge Bench in Dr. Hakimwadi Tenants Association
(supra) and the majority judgment in Girnar Traders (II). In both
the cases, this Court emphasized that if any private land is
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[2013] 2 S.C.R.
A shown as reserved, allotted or designated for any purpose

specified in any Development plan, the same may be acquired
within ten years either by agreement or by following the
procedure prescribed under the 1894 Act, and if proceedings
for the acquisition of land are not commenced within that period
B and a further period of six months from the date of service of
notice under Section 127 of the 1966 Act, then the land shall
be deemed to have been released from such reservation,
allotment, etc. In Dr. Hakimwadi Tenants Association (supra),
notice under Section 127 was issued on 1.7.1977. The State
C Government did not take any steps for the acquisition of land
within next six months. The learned Single Judge and the
Division Bench of the High Court held that in terms of second
part of Section 127, the reservation of land for recreation
ground will be deemed to have lapsed. This Court unequivocally
approved the view expressed by the High Court (paragraphs
D
10 and 11). The majority judgment in Girnar Traders (II) appears
to suggest that the question considered and decided in Dr.
Hakimwadi Tenants Association (supra) was slightly different,
but having carefully gone through paragraphs 10 and 11 of the
first judgment, we are convinced that the question involving
E interpretation of Section 127 was very much considered and
decided by the two-Judge Bench in favour of the landowner and
there is no conflict in the opinion expressed in the two
judgments.
21. We are further of the view that the majority in Girnar
Traders (II) had rightly observed that steps towards the
acquisition would really commence when the State Government
takes active steps for the acquisition of the particular piece of
land which leads to publication of the declaration under Section
G 6 of the 1894 Act. Any other interpretation of the scheme of
Sections 126 and 127 of the 1966 Act will make the provisions
wholly unworkable and leave the landowner at the mercy of the
Planning Authority and the State Government.
F
22. The expression no steps as aforesaid used in

Section 127 of the 1966 Act has to be read in the context of

the provisions of the 1894 Act and mere passing of a resolution
by the Planning Authority or sending of a letter to the Collector
or even the State Government cannot be treated as
commencement of the proceedings for the acquisition of land
under the 1966 Act or the 1894 Act. By enacting Sections 125
to 127 of the 1966 Act, the State Legislature has made a
definite departure from the scheme of acquisition enshrined in
the 1894 Act. But a holistic reading of these provisions makes
it clear that while engrafting the substance of some of the
provisions of the 1894 Act in the 1966 Act and leaving out other
provisions, the State Legislature has ensured that the
landowners/other interested persons, whose land is utilized for
execution of the Development plan/Town Planning Scheme,
etc., are not left high and dry. This is the reason why time limit
of ten years has been prescribed in Section 31(5) and also
under Sections 126 and 127 of the 1966 Act for the acquisition
of land, with a stipulation that if the land is not acquired within
six months of the service of notice under Section 127 or steps
are not commenced for acquisition, reservation of the land will
be deemed to have lapsed. Shri Naphades interpretation of
the scheme of Sections 126 and 127, if accepted, will lead to
absurd results and the landowners will be deprived of their right
to use the property for an indefinite period without being paid
compensation. That would tantamount to depriving the citizens
of their property without the sanction of law and would result in
violation of Article 300A of the Constitution.
23. Before concluding, we may notice the judgment of the
Constitution Bench in Girnar Traders (III) on which reliance was
placed by Shri Shekhar Naphade. The main question decided
in that case was whether Section 11A of the 1894 Act is
applicable to the acquisition of land made under the 1966 Act.
The Constitution Bench referred to the provisions of the 1966
Act (as amended) including Chapter VII thereof and held that
Section 11A of the 1894 Act cannot be bodily lifted and read
into the scheme of the 1966 Act. At the same time, it held that
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[2013] 2 S.C.R.
A if any land is reserved, allotted or designated for any purpose

specified in the Regional plan or Development plan and the
same is not acquired by agreement within 10 years from the
date of enforcement of such plan or the declaration under subsection (2) or (4) of Section 126 of the 1966 Act is not
B published in the Official Gazette within that period, the owner
or any person interested in the land may serve notice upon the
Planning Authority etc. and if within 12 months of the service
of notice the land is not acquired or no steps, as aforesaid are
commenced for its acquisition, the reservation etc. will
C automatically lapse. All this is evinced from paragraphs 125129, 132-134, 136 and 138 of the Constitution Bench judgment,
which are extracted below:
125. In terms of Section 126(1)(c) of the MRTP Act, the

application to the State Government has to be made for
acquiring such land under the Land Acquisition Act. Such
land refers to the lands which are required only under the
provisions of the MRTP Act. Section 126(2) refers to
Section 6 of the Land Acquisition Act only for the purpose
of format in which the declaration has to be made. In terms
of Section 126(3), on publication of the declaration, the
Collector shall proceed to take order for acquisition of the
land under the State Act i.e. for the purpose of acquisition
of land; the procedure adopted under the Land Acquisition
Act shall be adopted by the Collector and nothing more.
The aforereferred provisions of the State Act clearly frame
a scheme for planned development with limited
incorporation of some of the provisions of the Land
Acquisition Act.
126. The provisions of the State Act were amended last
in point of time and, therefore, the State Legislature was
aware of the relevant existing laws including Section 11A of the Land Acquisition Act. The intent of the legislature
to exclude the application of Section 11-A clearly emerges
from the fact that while amending Section 127 of the MRTP

Act, it made no reference, generally or specifically, to the

said provision rather it deleted reference to the provisions
of the Land Acquisition Act from the unamended
provisions of Section 127. Reference to Section 16 of the
Land Acquisition Act in the State Act, under Section 128(3)
of the State Act, is again relatable to the acquisition
proceedings under the Land Acquisition Act, as under
Section 83 of the State Act, the land could vest in the
Planning Authority even at the threshold and it is vesting
of a different kind than contemplated under Section 16 of
the Land Acquisition Act. The purpose and intent of
Section 129 of the MRTP Act is akin to the provisions of
Section 17 of the Land Acquisition Act and from linguistic
point of view, there is similarity in the two sections but still
the State Act has provided for a complete scheme with
regard to possession and compensation payable to the
owner of the land in cases of urgency. Thus, it is clear that
there is no general reference to the provisions of the Land
Acquisition Act and they shall not apply as such or even
mutatis mutandis to the MRTP Act. On the contrary,
reference to the Central Act, wherever is made in the State
Act, is specific and for a definite purpose.
127. Another argument which had been vehemently
advanced on behalf of the appellant is that the reference
to the provisions of the Land Acquisition Act in different
provisions of the MRTP Act would require that the
proceedings commence from Section 6 of the Central Act
onwards and award is made in terms of Section 11 of that
Act and as those provisions apply to these proceedings,
Section 11-A would automatically come into play so would
the other provisions of the Land Acquisition Act. The
expression under the said Act in Section 126(3) of the
MRTP Act is sufficient indication that it is a legislation by
reference and, thus, all subsequent amendments would
apply. It was also contended that on a bare reading of
Sections 126 and 127 of the MRTP Act, it is clear that it
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[2013] 2 S.C.R.
does not exclude the application of Section 11-A of the

Land Acquisition Act.
128. We certainly are not impressed by this argument
advanced on behalf of the appellants. Firstly, if we examine
the acquisition proceedings under the Land Acquisition
Act, they commence only when a notification under Section
4 of the Land Acquisition Act is issued. Section 5-A of the
Central Act makes it incumbent upon the authorities to
invite objections and decide the same before issuing
declaration under Section 6 of the Land Acquisition Act.
All these proceedings have specifically been given a goby under the MRTP Act, where notification is to be issued
under Section 126(2) in the manner provided under
Section 6 of the Land Acquisition Act. Secondly, specific
reference to various sections of the Land Acquisition Act
in the MRTP Act necessarily implies exclusion of the
provisions not specifically mentioned therein. Lastly,
acquisition proceedings under the MRTP Act are
commenced by issuance of a declaration under Section
126(2) and then the procedure prescribed under the Land
Acquisition Act is followed up to the passing of award
under Section 11 of that Act.
129. Further, determination of compensation will again
depend upon the principles stated in Sections 23 and 24
of the Land Acquisition Act but subject to Sections 128(2)
and 129(1) of the MRTP Act. Statutory benefits accrued
under Sections 23(1-A), 23(2) and 28 of the Land
Acquisition Act would be applicable as held by this Court
in U.P. Avas Evam Vikas Parishad. Vesting, unlike
Section 16 of the Land Acquisition Act which operates only
after the award is made and compensation is given,
whereas under the MRTP Act it may operate even at the
initial stages before making of an award, for example,
under Sections 126(1)(c) and 83.
132. Besides this, another very important aspect of the

present case is that if the provisions of Section 11-A of

the Land Acquisition Act are applied or deemed to be
incorporated by application of any doctrine of law into the
provisions of the MRTP Act, it will have the effect of
destroying the statutory rights available to the State
Government and/or the Planning Authority. For instance,
proviso to Section 126(2) of the State Act provides that
where a declaration in the manner provided in Section 6
of the Land Acquisition Act in respect of the said land is
not made within one year from the date of publication of
draft regional plan, thereafter no such declaration shall be
made. Section 126(4) makes an exception to the
consequences stated in the proviso to Section 126(2) that
the State Government, notwithstanding those provisions,
can make a fresh declaration for acquiring the land under
the Land Acquisition Act. However, the market value of the
land shall be the market value at the date of declaration in
the Official Gazette made for acquiring such land afresh.
In other words, the rest of the machinery provided under
the Act would not operate after the prescribed period.
133. However, in terms of Section 127 of the MRTP Act,
if any land reserved, allotted or designated for any purpose
specified is not acquired by agreement within 10 years
from the date on which final regional plan or final
development plan comes into force or if a declaration
under sub-section (2) or (4) of Section 126 of the MRTP
Act is not published in the Official Gazette within such
period, the owner or any person interested in the land may
serve notice upon such authority to that effect and if within
12 months from the date of service of such notice, the land
is not acquired or no steps, as aforesaid, are commenced
for its acquisition, the reservation, allotment or designation
shall be deemed to have lapsed and the land would
become available to the owner for the purposes of
development. The defaults, their consequences and even
exceptions thereto have been specifically stated in the
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[2013] 2 S.C.R.
State Act. For a period of 11 years, the land would remain

under reservation or designation, as the case may be, in
terms of Section 127 of the MRTP Act (10 years + notice
period).
134. However, if the provisions of Section 11-A of the
Central Act were permitted to punctuate a scheme of the
State Act and the award is not made within two years from
the date of declaration under Section 6 of the Central Act,
the acquisition proceedings will lapse which will frustrate
the rights of the State as well as the scheme contemplated
under Section 126 as well as Section 127 of the State Act
and that would not be permissible in law. This being
legislation by incorporation, the general reference to the
provisions of the Land Acquisition Act shall stand
excluded.
136. Section 126(2) of the State Act refers to the manner
of declaration as contemplated under Section 6 of the
Land Acquisition Act but the legislature intentionally
avoided making any reference to other features contained
in Section 6 of the Central Act as well as the time-frame
prescribed under that Act. On the contrary, proviso to
Section 126(2) of the MRTP Act spells out its own timeframe whereafter such declaration cannot be made subject
to the provisions of Section 126(4). The unamended
provisions of Section 127 of the State Act though refer to
the acquisition under the Land Acquisition Act but without
making any reference to the time-frame prescribed under
the said Act. In this section also, the specific time-frame
and the consequences of default thereof have been stated.
Sections 128 and 129 of the MRTP Act relate to acquiring
land for the purpose other than for which it is designated
in any plan or scheme and taking of possession of land in
cases of urgency respectively.
138. The provisions relating to planned development of the
State or any part thereof, read in conjunction with the object

of the Act, show that different time-frames are required for

initiation, finalisation and complete execution of such
development plans. The period of 10 years stated in
Section 127 of the MRTP Act, therefore, cannot be said
to be arbitrary or unreasonable ex facie. If the provisions
of Section 11-A of the Land Acquisition Act, with its
serious consequence of lapsing of entire acquisition
proceedings, are bodily lifted and read into the provisions
of the MRTP Act, it is bound to frustrate the entire scheme
and render it ineffective and uncertain. Keeping in view the
consequence of Section 11-A of the Central Act, every
development plan could stand frustrated only for the reason
that period of two years has lapsed and it will tantamount
to putting an end to the entire development process.
(emphasis supplied)
[2013] 2 S.C.R. 706

A
R.P.
APRIL 2, 2013.
[R.M. LODHA J. CHELAMESWAR AND
MADAN B. LOKUR, JJ.]
Motor Vehicles Act, 1988:
24. In our view, the observations contained in paragraph

133 of Girnar Traders (III) unequivocally support the majority
judgment in Girnar Traders (II).
25. As a sequel to the above discussion, we hold that the
majority judgment in Girnar Traders (II) lays down correct law
and does not require reconsideration by a larger Bench. We
further hold that the orders impugned in these appeals are
legally correct and do not call for interference by this Court. The
appeals are accordingly dismissed.
RESHMA KUMARI AND ORS.

v.
MADAN MOHAN AND ANR.
Appeals dismissed.
s. 166 Motor accident Compensation Computation

of Multiplier Additional income for future prospects
Deduction towards income tax as also personal expenses
Held: It is high time that the courts move to a standard method
of selection of multiplier, income for future prospects and
deduction for personal and living expenses In the
applications for compensation made u/s 166 in death cases
where the age of deceased is 15 years and above, Claims
Tribunals shall select the multiplier as indicated in Column
(4) of the table prepared in Sarla Verma read with the relevant
para of that judgment As a result, there is no necessity for
Claims Tribunals to seek guidance or for placing reliance on
the Second Schedule in the 1988 Act In cases where the
age of the deceased is upto 15 years, irrespective of s.166
or s.163A under which the claim for compensation has been
made, multiplier of 15 and the assessment as indicated in the
Second Schedule subject to correction as pointed out in
Column (6) of the table in Sarla Verma should be followed
For determination of compensation in death cases, and for
making addition to income for future prospects and deduction
in case of taxable salary, guidelines laid down in Sarla
Vermas case shall be followed Further, with regard to
deduction for personal expenses ordinarily the judgment in
Sarla Vermas case, subject to the observations made in the
instant judgment, shall be followed.
706
RESHMA KUMARI v. MADAN MOHAN
707
s.168 Just compensation Held: The expression, just

means that the amount so determined is fair, reasonable and
equitable by accepted legal standards.
In the instant appeals referred by a two-Judge Bench
for decision of a larger Bench, the question for
consideration before the Court was: whether while
considering an application for compensation made u/s
166, the multiplier specified in the Second Schedule can
be taken to be guide for determination of amount of the
compensation.
708
Minu B. Mehta and Anr. v. Balkrishna Ramchandra
[2013] 2 S.C.R.
A Nayan and Anr. 1977 (2) SCR 886 = 1977 (2) SCC 441;
Gujarat State Road Transport Corporation, Ahmedabad v.
Ramanbhai Prabhatbhai and Another 1987(3)SCR
404=1987(3)SCC234 referredto.
Answering the reference, the Court

HELD: 1.1 The Motor Vehicles Act, 1988 gives choice
to the claimants to seek compensation on structured
formula basis as provided in s.163A or make an
application for compensation arising out of an accident
of the nature specified in sub-s. (1) of s. 165, u/s 166. The
claimants have to elect one of the two remedies provided
in ss.163A and 166. The remedy provided in s.163A is not
a remedy in addition to the remedy provided in s.166 but
it provides for an alternative course to s.166. The peculiar
feature of s.163A is that for a claim made thereunder, the
claimants are not required to plead or establish that the
death or permanent disablement in respect of which the
claim has been made was due to any wrongful act or
neglect or default of the owner or owners of the vehicle
concerned. On the other hand, by making an application
for compensation arising out of an accident u/s 166 it is
necessary for a claimant to prove negligence on the part
of the driver or owner of the vehicle. The burden is on
the claimant to establish the negligence on the part of the
driver or owner of the vehicle and on proof thereof, the
claimant is entitled to compensation. [para 10-11] [722-EG; 723-A-B, E-F]
Davies & Anr. v. Powell Duffryn Associated Collieries Ltd.

1942 (1) All ER 657 and (2) Nance v. British Columbia
Electric Railway Co. Ltd. 1951 (2) All ER 448 Mallett v. Mc
Monagle 1969 (2) All ER 178 referred to.
1.2 The determination of compensation based on

C multiplier method is the best available means and the
most satisfactory method and must be followed invariably
by the tribunals and courts. This statement in Susamma
Thomas is equally applicable to the fatal accident claims
made u/s 166 of the 1988 Act. In Trilok Chandra, the Court
D considered s. 163A and the Second Schedule which was
not under consideration in Susamma Thomas as s.163A
was not on the statute when the judgment in Susamma
Thomas was delivered. It was observed that by
incorporation of ss. 163A and 163B in the 1988 Act the
E situation had undergone a change. Under the Second
Schedule, the maximum multiplier could be upto 18 and
not 16 as was held in Susamma Thomas. In Trilok
Chandra, the maximum multiplier was fixed at 18 but the
Court did find several defects in the calculation of
F compensation and the amount worked out in the Second
Schedule. Importantly, this Court stated in Trilok Chandra
that tribunals and the courts cannot go by the ready
reckoner; the Schedule can only be used as a guide.
[para 13 and 32] [724-G-H; 725-A-B; 737-F-G]
G
General Manager, Kerala State Road Transport

Corporation, Trivandrum v. Susamma Thomas (Mrs.) and
Ors. 1994 (2) SCC 176, U.P. State Road Transport
Corporation and Ors. v. Trilok Chandra and Ors. 1996 (2)
Suppl. SCR443=1996 (4) SCC 362, Kaushnuma Begum
H (Smt.) and Ors. v. New India Assurance Co. Ltd. and Ors.
709
2001 (1) SCR 8 = 2001 (2) SCC 9; Supe Dei (Smt) and others
v. National Insurance Company Limited and Another 2009 (4)
SCC513;Deepal Girishbhai Soni and others v. United India
Insurance Co. Ltd., Baroda (2004) 5 SCC 385; Oriental
Insurance Company Ltd. v. Jashuben and Ors. 2008 (2)
SCR930 =2008 (4) SCC162 referred to.
1.3 In Sarla Verma, this Court undertook the exercise
of comparing the multiplier indicated in Susamma
Thomas, Trilok Chandra and Charlie, for claims u/s 166
of the 1988 Act with the multiplier mentioned in the
Second Schedule for claims u/s 163A (with appropriate
deceleration after 50 years). The exercise was undertaken
to ensure uniformity and consistency in the selection of
multiplier while awarding compensation in motor accident
claims made u/s 166. [para 26 and 28] [735-A-B; 736-D]
710
A
1.4 Section 168 of the 1988 Act provides the guideline

that the amount of compensation shall be awarded by the
claims tribunal which appears to it to be just. The
expression, just means that the amount so determined
is fair, reasonable and equitable by accepted legal
standards and not a forensic lottery. Obviously just
compensation does not mean perfect or absolute
compensation. The just compensation principle requires
examination of the particular situation obtaining uniquely
in an individual case. [para 29] [736-E-F]
[2013] 2 S.C.R.
C.K. Subramania Iyer and Ors. v. T.Kunhikuttan Nair and

Ors. 1970 (2) SCR 688 referred to.
Taff Vale Railway Co. v. Jenkins (1913) AC 1 referred
to.
Sarla Verma (Smt.) and Ors. v. Delhi Transport

Corporation and Anr. 2009 (5) SCR 1098 = 2009 (6) SCC 121
affirmed.
New India Assurance Company Ltd. v. Charlie and Anr.
2005 (2) SCR 1173 = 2005 (10) SCC 720, T.N. State Road
Transport Corporation v. S. Rajapriya and Ors. 2005 (3)
SCR737=2005(6)SCC236andU.P. State Road Transport
Corporation v. Krishna Bala and Ors. 2006 (3) Suppl.
SCR506 =2006 (6) SCC249 referred to.
1.5 In Sarla Verma, this Court has endeavoured to

simplify the otherwise complex exercise of assessment
of loss of dependency and determination of
compensation in a claim made u/s 166. It has been rightly
stated that claimants in case of death claim for the
purposes of compensation must establish: (a) age of the
deceased; (b) income of the deceased; and (c) the
number of dependants. To arrive at the loss of
dependency, the Tribunal must consider (i) additions/
deductions to be made for arriving at the income; (ii) the
deductions to be made towards the personal living
expenses of the deceased; and (iii) the multiplier to be
applied with reference to the age of the deceased. In view
of the decision in Sarla Verma, it is not necessary to
revisit the law on the point. The table has been prepared
in Sarla Verma for the selection of multiplier having regard
to the three decisions of this Court, namely, Susamma
Thomas, Trilok Chandra and Charlie for the claims made
u/s 166 of the 1988 Act. The Court said that multiplier
shown in Column (4) of the table must be used having
regard to the age of the deceased. Perhaps the biggest
advantage by employing the table prepared in Sarla
Verma is that uniformity and consistency in selection of
the multiplier can be achieved. The assessment of extent
of dependency depends on examination of the unique
situation of the individual case. Valuing the dependency
or the multiplicand is to some extent an arithmetical
exercise. The multiplicand is normally based on the net
annual value of the dependency on the date of the
deceaseds death. Once the net annual loss
(multiplicand) is assessed, taking into account the age of
711
the deceased, such amount is to be multiplied by a

multiplier to arrive at the loss of dependency. [para 33]
[737-G-H; 738-A-F]
1.6 It is high time that the courts move to a standard
method of selection of multiplier, income for future
prospects and deduction for personal and living
expenses. The courts in some of the overseas
jurisdictions have made this advance. It is for these
reasons, this Court must approve the table in Sarla Verma
for the selection of multiplier in claim applications made
u/s 166 in the cases of death. [para 34] [738-H; 739-A]
1.7 If for the selection of multiplier, Column (4) of the
table in Sarla Verma is followed, there is no likelihood of
the claimants who have chosen to apply u/s 166 being
awarded lesser amount on proof of negligence on the
part of the driver of the motor vehicle than those who
prefer to apply u/s 163A. [para 34] [739-A-B]
1.8 As regards the cases where the age of the victim
happens to be upto 15 years, this Court is of the
considered opinion that in such cases irrespective of
s.163A or s.166 under which the claim for compensation
has been made, multiplier of 15 and the assessment as
indicated in the Second Schedule subject to correction
as pointed out in Column (6) of the table in Sarla Verma
should be followed. This is to ensure that claimants in
such cases are not awarded lesser amount when the
application is made u/s 166 of the 1988 Act. In all other
cases of death where the application has been made u/s
166, the multiplier as indicated in Column (4) of the table
in Sarla Verma should be followed. As a result, there is
no necessity for the Claims Tribunals to seek guidance
or for placing reliance on the Second Schedule in the
1988 Act. The Claims Tribunals shall follow the steps and
guidelines stated in para 19 of Sarla Verma for
determination of compensation in cases of death. [para
712
A
[2013] 2 S.C.R.
A 34 and 40(i), (ii) and (iii)] [739-C-E; 742-F-H; 743-A]
1.9 The standardization of addition to income for

future prospects shall help in achieving certainty in
arriving at appropriate compensation. While making
addition to income for future prospects, the Tribunals
shall follow paragraph 24 of the Judgment in Sarla
Verma. This Court approves the method that an addition
of 50% of actual salary be made to the actual salary
income of the deceased towards future prospects where
the deceased had a permanent job and was below 40
years and the addition should be only 30% if the age of
the deceased was 40 to 50 years and no addition should
be made where the age of the deceased is more than 50
years. Where the annual income is in the taxable range,
the actual salary shall mean actual salary less tax. In the
cases where the deceased was self-employed or was on
a fixed salary without provision for annual increments,
the actual income at the time of death without any
addition to income for future prospects will be
appropriate. A departure from the above principle can
only be justified in extraordinary circumstances and very
exceptional cases. [para 36 and 40(v)] [740-C-F]
1.10 One must bear in mind that the proportion of a

mans net earnings that he saves or spends exclusively
for the maintenance of others does not form part of his
F living expenses but what he spends exclusively on
himself does. The percentage of deduction on account
of personal and living expenses may vary with reference
to the number of dependant members in the family, and
the personal living expenses of the deceased need not
G exactly correspond to the number of dependants. The
standards fixed by this Court in Sarla Verma on the
aspect of deduction for personal living expenses in
paragraphs 30, 31 and 32 must ordinarily be followed
unless a case for departure is made out. [para 38-39] [741H H; 742-A-C]
713
Sarla Verma (Smt.) and Ors. v. Delhi Transport

Corporation and Anr. 2009 (5) SCR 1098 = 2009 (6)
SCC121; and Fakeerappa and Anr. v. Karnataka Cement
Pipe Factory and Others 2004 (2 ) SCR 369 = (2004) 2 SCC
473 - referred to.
United India Insurance Co. Ltd. & Ors. v. Patricia Jean
Mahajan & Ors. 2002 (3) SCR 1176 = 2002 (6) SCC 281,
Jyoti Kaul & Ors. v. State of M.P. & Anr. 2002 (6) SCC 306,
Abati Bezbaruah v. Dy. Director General, Geological Survey
of India & Anr. 2003 (1) SCR 1229 = 2003 (3) SCC 148, New
India Assurance Co. Ltd. v. Shanti Pathak (Smt.) & Ors. 2007
(8)SCR237=2007 (10)SCC1 - cited.
714
A

(2004) 5 SCC 385
[2013] 2 S.C.R.
referred to
para 18
2008 (2) SCR 930
referred to
para 22
2009 (5) SCR 1098
referred to
para 23
2005 (2) SCR1173
referred to
para 25
2005 (3) SCR 737
referred to
para 25
2006 (3) Suppl. SCR 506
referred to
para 25
(1913) AC 1
referred to
para 30
1970 (2) SCR 688
referred to
para 31
2004 (2) SCR 369
referred to
para 37
Case Law Reference:

1994 (2) SCC 176
referred to
Para 1
1996 (3) SCR 30
affirmed
Para 1
1996 (2) Suppl. SCR 443 referred to
Para 1
2001 (1) SCR 8
referred to
Para 1
2002 (3) SCR 1176
cited
Para 1
2002 (6) SCC 306
cited
Para 1
2003 (1) SCR 1229
cited
Para 1
2007 (8) SCR 237
cited
Para 1
1977 (2) SCR 886
referred to
para 2
1987 ( 3 ) SCR 404
referred to
para 4
1942 (1) All ER 657
referred to
para 12
1951 (2) All ER 44 8
referred to
para 12
1969 (2) All ER 178
referred to
para 12
2009 (4 ) SCC 513
referred to
para 14

D 4646 of 2009.
WITH
C.A. No. 4647 of 2009.
Ashok K. Mahajan, Gajendra Maheshwari, Rajat Bose for

the Appellants.
Shalu Sharma, Dr. Sushil Balwada, Debasis Misra for the
Respondents.
R.M. LODHA, J. 1. A two-Judge Bench (S.B. Sinha and

Cyriac Joseph, JJ.) proceeded to hear these appeals on two
common questions, namely, (1) Whether multiplier specified in
the Second Schedule appended to the Motor Vehicles Act,
G
1988 (for short the 1988 Act) should be scrupulously applied
in all cases? and (2) Whether for determination of the
multiplicand, the 1988 Act provides for any criterion, particularly
as regards determination of future prospect. In the course of
hearing few decisions of this Court, General Manager, Kerala
H

[R.M. LODHA, J.]
715
State Road Transport Corporation, Trivandrum v. Susamma

Thomas (Mrs.) and Ors. 1, Sarla Dixit (Smt.) and Anr. v.
Balwant Yadav and Ors. 2 , U.P. State Road Transport
Corporation and Ors. V. Trilok Chandra and Ors. 3 ,
Kaushnuma Begum (Smt.) and Ors. V. New India Assurance
Co. Ltd. and Ors.4, United India Insurance Co. Ltd. & Ors. v.
Patricia Jean Mahajan & Ors.5, Jyoti Kaul & Ors. v. State of
M.P. & Anr. 6, Abati Bezbaruah v. Dy. Director General,
Geological Survey of India & Anr.7, New India Assurance Co.
Ltd. v. Shanti Pathak (Smt.) & Ors.8, were cited. The attention
of the Bench was also invited to Sections 163A and 166 of the
1988 Act. The Bench was of the opinion that the question,
whether the multiplier specified in the Second Schedule should
be taken to be guide for calculation of amount of compensation
payable in a case falling under Section 166 of the 1988 Act
needed to be decided by a larger Bench. The reasons for
referring the above issue to the larger Bench indicated in the
referral order dated 23.07.2009 read as under:
39. We have noticed hereinbefore that in Patricia Jean
Mahajan5 and Abati Bezbaruah7 and the other cases
following them multiplier specified in the Second Schedule
has been taken to be guiding factor for calculation of the
amount of compensation even in a case under Section
166 of the Act. However, in Shanti Pathak8 this Court
advocated application of lesser multiplier, although no legal
principle has been laid therein.
716
A
40. In Trilok Chandra3 this Court has pointed out certain

1.
1994 (2) SCC 176.
2.
1996 (3) SCC 179.
3.
1996 (4) SCC 362.
4.
2001 (2) SCC 9.
5.
2002 (6) SCC 281.
6.
2002 (6) SCC 306.
7.
2003 (3) SCC 148.
8.
2007 (10) SCC 1.
[2013] 2 S.C.R.
purported calculation mistakes in the Second Schedule.

It, however, appears to us that there is no mistake therein.
Amount of compensation specified in the Second
Schedule only is required to be paid even if a higher or
lower amount can be said to be the quantum of
compensation upon applying the multiplier system.
41. Section 163-A of the 1988 Act does not speak of
application of any multiplier. Even the Second Schedule,
so far as the same applies to fatal accident, does not say
so. The multiplier, in terms of the Second Schedule, is
required to be applied in a case of disability in nonfatal
accident. Consideration for payment of compensation in
the case of death in a no fault liability case vis--vis the
amount of compensation payable in a case of permanent
total disability and permanent partial disability in terms of
the Second Schedule is to be applied by different norms.
Whereas in the case of fatal accident the amount specified
in the Second Schedule depending upon the age and
income of the deceased is required to be paid where for
the multiplier is not to be applied at all but in a case
involving permanent total disability or permanent partial
disability the amount of compensation payable is required
to be arrived at by multiplying the annual loss of income
by the multiplier applicable to the age of the injured as on
the date of determining the compensation and in the case
of permanent partial disablement such percentage of
compensation which would have been payable in the case
of permanent total disablement as specified under item (a)
of the Second Schedule.
42. The Parliament in its wisdom thought to provide for a
higher amount of compensation in case of permanent total
disablement and proportionate amount of compensation
in case of permanent partial disablement depending upon
the percentage of disability.
43. Thus, prima facie, it appears that the multiplier

[R.M. LODHA, J.]
717
mentioned in the Second Schedule, although in a given

case, may be taken to be a guide but the same is not
decisive. To our mind, although a probable amount of
compensation as specified in the Second Schedule in the
event the age of victim is 17 or 20 years and his annual
income is Rs. 40,000/-, his heirs/legal representatives is
to receive a sum of Rs.7,60,000/-, however, if an
application for grant of compensation is filed in terms of
Section 166 of the 1988 Act that much amount may not
be paid, although in the former case the amount of
compensation is to be determined on the basis of no fault
liability and in the later on fault liability. In the
aforementioned situation the Courts, we opine, are
required to lay down certain principles.
44. We are not unmindful of the Statement of Objects and
Reasons to Act 54 of 1994 for introducing Section 163-A
so as to provide for a new predetermined formula for
payment of compensation to road accident victims on the
basis of age/income; which is more liberal and rational.
That may be so, but it defies logic as to why in a similar
situation, the injured claimant or his heirs/legal
representatives, in the case of death, on proof of
negligence on the part of the driver of a motor vehicle
would get a lesser amount than the one specified in the
Second Schedule. The Courts, in our opinion, should also
bear that factor in mind.
45. Having regard to divergence of opinion and this aspect
of the matter having not been considered in the earlier
decisions, particularly in the absence of any clarification
from the Parliament despite the recommendations made
by this Court in Trilok Chandra3, the issue, in our opinion,
shall be decided by a Larger Bench. It is directed
accordingly.
2. We are concerned with the above reference. Before we
refer to the provisions contained in Sections 163A and 166 of
718
A
[2013] 2 S.C.R.
A the 1988 Act, it is of some relevance to notice the background

in which the Parliament considered it necessary to bring in the
provisions of no fault liability on the statute. It so happened that
in Minu B. Mehta and Anr. v. Balkrishna Ramchandra Nayan
and Anr.9, a three-Judge Bench of this Court while considering
B the question whether the fact of injury resulting from the accident
involving the use of a vehicle on the public road is the basis of
a liability and that it is not necessary to prove any negligence
on the part of the driver, held that the liability of the owner of
the car to compensate the victim in a car accident due to the
C negligent driving of his servant is based on the law of tort and
before the master could be made liable it is necessary to prove
that the servant was acting during the course of his employment
and that he was negligent. This Court held that the concept of
owners liability without any negligence is opposed to the basic
principles of law. The mere fact that a person died or a party
D
received an injury arising out of the use of a vehicle in a public
place cannot justify fastening liability on the owner. This Court
noticed a judgment of Madras High Court in M/s Ruby
Insurance Co. v. Govindaraj, (A.A.O. Nos. 607 of 1973 and
296 of 1974) decided on December 13, 1976 wherein the
E necessity of having social insurance to provide cover for the
claimants irrespective of proof of negligence to a limited extent
was suggested. This Court said unless these ideas are
accepted by the legislature and embodied in appropriate
enactments Courts are bound to administer and give effect to
F the law as it exists today. We conclude by stating that the view
of the learned Judges of the High Court has no support in law
and hold that proof of negligence is necessary before the owner
or the insurance company could be held to be liable for the
payment of compensation in a motor accident claim case.
G
3. The Parliament having regard to the above view of this
Court and the recommendation of the Law Commission of India,
amended the Motor Vehicles Act, 1939 (for short, 1939 Act)
and inserted Section 92A therein which provided that in any
H
9.
1977 (2) SCC 441.

[R.M. LODHA, J.]
719
claim for compensation under sub-section (1) of Section 92A, the claimant shall not be required to plead and establish that
the death or permanent disablement in respect of which the
claim has been made was due to any wrongful act, neglect or
default of the owner or owners of the vehicles concerned or of
any other person.
4. In Gujarat State Road Transport Corporation,
Ahmedabad v. Ramanbhai Prabhatbhai and Another10, a twoJudge Bench held that the compensation awardable under
Section 92-A was without proof of any negligence on the part
of the owner of the vehicle or any other person which was
clearly a departure from the usual common law principle that a
claimant should establish negligence on the part of the owner
or driver of the motor vehicle before claiming any
compensation for the death or permanent disablement caused
on account of a motor vehicle accident. Certain observations
made in Minu B. Mehta9 were held to be obiter in Ramanbhai
Prabhatbhai10.
5. The 1988 Act replaced the 1939 Act. Chapter X of the
1988 Act deals with liability without fault in certain cases. Subsection (3) of Section 140 provides that in any claim for
compensation under sub-section (1) the claimant shall not be
required to plead and establish that the death or permanent
disablement in respect of which the claim has been made was
due to any wrongful act, neglect or default of the owner or
owners of the vehicle or vehicles concerned or of any other
person. Chapter XI of the 1988 Act deals with insurance of
motor vehicles against third party risks. Chapter XII deals with
the claims tribunals. Section 166 makes a provision for
application for compensation arising out of an accident which
after few amendments reads as under:
720
A
[2013] 2 S.C.R.
(1) An application for compensation arising out of an

accident of the nature specified in sub-section (1) of
section 165 may be made(a) by the person who has sustained the injury; or
(b) by the owner of the property; or

(c) where death has resulted from the accident, by all or
any of the legal representatives of the deceased; or
Section 166 - Application for compensation
10. 1987 (3) SCC 234.
(d) by any agent duly authorised by the person injured or

all or any of the legal representatives of the deceased, as
the case may be:
Provided that where all the legal representatives of the
deceased have not joined in any such application for
compensation, the application shall be made on behalf of
or for the benefit of all the legal representatives of the
deceased and the legal representatives who have not so
joined, shall be impleaded as respondents to the
application.
(2) Every application under sub-section (1) shall be made,
at the option of the claimant, either to the Claims Tribunal
having jurisdiction over the area in which the accident
occurred or to the Claims Tribunal within the local limits of
whose jurisdiction the claimant resides or carries on
business or within the local limits of whose jurisdiction the
defendant resides, and shall be in such form and contain
such particulars as may be prescribed:
Provided that where no claim for compensation under
section 140 is made in such application, the application
shall contain a separate statement to that effect
immediately before the signature of the applicant.
(4) The Claims Tribunal shall treat any report of accidents
forwarded to it under sub-section (6) of section 158 as an

[R.M. LODHA, J.]
721
application for compensation under this Act.
722
A
6. By Act 54 of 1994, Section 163A was brought in the

1988 Act w.e.f. 14.11.1994. Section 163A may be reproduced
which reads as under:163-A. Special provisions as to payment of
compensation on structured formula basis .(1)
Notwithstanding anything contained in this Act or in any
other law for the time being in force or instrument having
the force of law, the owner of the motor vehicle or the
authorised insurer shall be liable to pay in the case of death
or permanent disablement due to accident arising out of
the use of motor vehicle, compensation, as indicated in the
Second Schedule, to the legal heirs or the victim, as the
case may be.
Explanation.For the purposes of this sub-section,
permanent disability shall have the same meaning and
extent as in the Workmens Compensation Act, 1923 (8
of 1923).
(2) In any claim for compensation under sub-section (1),
the claimant shall not be required to plead or establish that
the death or permanent disablement in respect of which
the claim has been made was due to any wrongful act or
neglect or default of the owner of the vehicle or vehicles
concerned or of any other person.
8. Consequent upon the insertion of Section 163A in the
[2013] 2 S.C.R.
A 1988 Act, certain amendments were brought in the 1988 Act.

Sub-section (5) which was inserted in Section 140 reads as
follows:
Notwithstanding anything contained in sub-section (2)
regarding death or bodily injury to any person, for which
the owner of the vehicle is liable to give compensation for
relief, he is also liable to pay compensation under any other
law for the time being in force.
9. Section 163B was also brought in the 1988 Act along

with
Section 163A. Section 163B reads as follows:
D
(3) The Central Government may, keeping in view the cost

of living by notification in the Official Gazette, from time to
time amend the Second Schedule.
7. Along with Section 163A Second Schedule was inserted
in the 1988 Act. Sub- section (3) of Section 163A empowers
the central government to amend the Second Schedule from
time to time keeping in view the cost of living.
Provided that the amount of such compensation to be

given under any other law shall be reduced from the
amount of compensation payable under this section or
under section 163A.
163B. Option to file claim in certain cases. Where a

person is entitled to claim compensation under section 140
and section 163A, he shall file the claim under either of
the said sections and not under both.
10. The 1988 Act gives choice to the claimants to seek

compensation on structured formula basis as provided in
Section 163A or make an application for compensation arising
out of an accident of the nature specified in sub-section (1) of
F Section 165 under Section 166. The claimants have to elect
one of the two remedies provided in Section 163A and Section
166. The remedy provided in Section 163A is not a remedy in
addition to the remedy provided in Section 166 but it provides
for an alternative course to Section 166. By incorporating
G Section 163A in the 1988 Act, the Parliament has provided the
remedy for payment of compensation notwithstanding anything
contained in the 1988 Act or in any other law for the time being
in force or instrument having the force of law, that the owner of
a motor vehicle or authorised insurer shall be liable to pay
compensation on structured formula basis as indicated in the
H

[R.M. LODHA, J.]
723
Second Schedule in the case of death or permanent

disablement due to accident arising out of the use of motor
vehicle. The peculiar feature of Section 163A is that for a claim
made thereunder, the claimants are not required to plead or
establish that the death or permanent disablement in respect
of which the claim has been made was due to any wrongful act
or neglect or default of the owner or owners of the vehicle
concerned. The scheme of Section 163A is a departure from
the general principle of law of tort that the liability of the owner
of the vehicle to compensate the victim or his heirs in a motor
accident arises only on the proof of negligence on the part of
the driver. Section 163A has done away with the requirement
of the proof of negligence on the part of the driver of the vehicle
where the victim of an accident or his dependants elect to apply
for compensation under Section 163A. When an application for
compensation is made under Section 163A the compensation
is paid as indicated in the Second Schedule. The table in the
Second Schedule has been found by this Court to be defective
to which we shall refer at a little later stage.
11. On the other hand, by making an application for
compensation arising out of an accident under Section 166 it
is necessary for a claimant to prove negligence on the part of
the driver or owner of the vehicle. The burden is on the claimant
to establish the negligence on the part of the driver or owner
of the vehicle and on proof thereof, the claimant is entitled to
compensation. We are confronted with the question, whether
while considering an application for compensation made under
Section 166, the multiplier specified in the Second Schedule
can be taken to be guide for determination of amount of the
compensation.
12. In Susamma Thomas 1, this Court noticed the two
decisions of House of Lords, (1) Davies & Anr. v. Powell
Duffryn Associated Collieries Ltd.11 and (2) Nance v. British
724
A
11. 1942 (1) All ER 657.

12. 1951 (2) All ER 448.
[2013] 2 S.C.R.
A Columbia Electric Railway Co. Ltd. 12 wherein two different

methods lump sum method and multiplier method - were
adopted for determination and for calculation of compensation
in fatal accident actions. This Court has preferred the multiplier
method adopted in Davies case11. While holding so, this Court
B also referred to another decision of House of Lords in Mallett
v. Mc Monagle13. It has been laid down in Susamma Thomas1
that multiplier method was logically sound and legally well
established. The multiplier represented the number of years
purchase on which the loss of dependency is capitalized. The
C multiplier method involves the ascertainment of the loss of
dependency or the multiplicand having regard to the
circumstances of the case and capitalizing the multiplicand by
an appropriate multiplier. The choice of the multiplier is
determined by the age of the deceased (or that of the claimants
whichever is higher) and by the calculation as to what capital
D
sum, if invested at a rate of interest appropriate to a stable
economy, would yield the multiplicand by way of annual interest.
In ascertaining this, the Court said that regard should also be
had to the fact that ultimately the capital sum should also be
consumed-up over the period for which the dependency is
E expected to last. In Susamma Thomas1 this Court noticed that
English Courts have rarely applied operative multiplier
exceeding 16.
13. The award of compensation in a motor accident case
based on the multiplier method is an established norm in India
now. A three-Judge Bench in Trilok Chandra3 reiterated what
was stated in Susamma Thomas1 as regards determination
of compensation in accident cases on the basis of multiplier
method. In Trilok Chandra3, the Court considered Section
G 163A and the Second Schedule which was not under
consideration in Susamma Thomas1 as Section 163A was not
on the statute when the judgment in Susamma Thomas1 was
delivered. It was observed that by incorporation of Sections
163A and 163B in the 1988 Act the situation had undergone a
F
13. 1969 (2) All ER 178.

[R.M. LODHA, J.]
725
change. Under the Second Schedule, the maximum multiplier

could be upto 18 and not 16 as was held in Susamma
Thomas1. In Trilok Chandra3, the maximum multiplier was fixed
at 18 but the Court did find several defects in the calculation of
compensation and the amount worked out in the Second
Schedule. Importantly this Court stated in Trilok Chandra3 that
Tribunals and the Courts cannot go by the ready reckoner; the
Schedule can only be used as a guide. This is what this Court
said in paras 17 and 18 of the Report:
17. The situation has now undergone a change with the
enactment of the Motor Vehicles Act, 1988, as amended
by Amendment Act 54 of 1994. The most important
change introduced by the amendment insofar as it relates
to determination of compensation is the insertion of
Sections 163-A and 163-B in Chapter XI entitled Insurance
of Motor Vehicles against Third Party Risks. Section 165A begins with a non obstante clause and provides for
payment of compensation, as indicated in the Second
Schedule, to the legal representatives of the deceased or
injured, as the case may be. Now if we turn to the Second
Schedule, we find a table fixing the mode of calculation of
compensation for third party accident injury claims arising
out of fatal accidents. The first column gives the age group
of the victims of accident, the second column indicates the
multiplier and the subsequent horizontal figures indicate the
quantum of compensation in thousand payable to the heirs
of the deceased victim. According to this table the
multiplier varies from 5 to 18 depending on the age group
to which the victim belonged. Thus, under this Schedule the
maximum multiplier can be up to 18 and not 16 as was
held in Susamma Thomas case [(1994) 2 SCC 176].
18. We must at once point out that the calculation of
compensation and the amount worked out in the Schedule
suffer from several defects. For example, in Item 1 for a
victim aged 15 years, the multiplier is shown to be 15 years
726
A
[2013] 2 S.C.R.
and the multiplicand is shown to be Rs. 3000. The total

should be 3000x15=45,000 but the same is worked out
at Rs. 60,000. Similarly, in the second item the multiplier
is 16 and the annual income is Rs. 9000; the total should
have been Rs. 1,44,000 but is shown to be Rs. 1,71,000.
To put it briefly, the table abounds in such mistakes. Neither
the tribunals nor the courts can go by the ready reckoner.
It can only be used as a guide. Besides, the selection of
multiplier cannot in all cases be solely dependant on the
age of the deceased. For example, if the deceased, a
bachelor, dies at the age of 45 and his dependants are
his parents, age of the parents would also be relevant in
the choice of the multiplier. But these mistakes are limited
to actual calculations only and not in respect of other items.
What we propose to emphasise is that the multiplier cannot
exceed 18 years purchase factor. This is the improvement
over the earlier position that ordinarily it should not exceed
16. We thought it necessary to state the correct legal
position as courts and tribunals are using higher multiplier
as in the present case where the Tribunal used the
multiplier of 24 which the High Court raised to 34, thereby
showing lack of awareness of the background of the
multiplier system in Davies case.
(Emphasis supplied by us)
14. A three-Judge Bench in Supe Dei (Smt) and Others

v. National Insurance Company Limited and Another14 [Civil
Appeal No. 2753 of 2002; decided on April 16, 2002]
considered the question, whether Second Schedule to the 1988
Act can be made applicable in deciding the application for
compensation made under Section 166 or not? This Court held
G
that the Second Schedule under Section 163A of the 1988 Act
which gives the amount of compensation to be determined for
the purpose of claim under that Section can be taken as a
guideline while determining the compensation under Section
F
14. (2009) 4 SCC 513.

[R.M. LODHA, J.]
727
166 of the 1988 Act. The Second Schedule in terms does not
apply to a claim made under Section 166 of the 1988 Act.
15. In Patricia Jean Mahajan5, this Court had an occasion
to consider Sections 163A and 166 of the 1988 Act. With
regard to Section 163A, the Court stated, the noticeable
features of this provision are that it provides for compensation
in the case of death or permanent disablement due to accident
arising out of use of motor vehicle. The amount of
compensation would be as indicated in the Second Schedule.
The claimant is not required to plead or establish that the death
or permanent disablement was due to any wrongful act or
negligence or default of the owner of the vehicle or any other
person.
16. Then the Court referred to Sections 165 and 166 of
the 1988 Act and observed that a claim under Section 166 did
not provide for the amount of compensation according to the
Second Schedule; rather Section 168 makes it clear that it is
for the tribunal to arrive at an amount of compensation which it
may consider to be just in the facts and circumstances of the
case. However, the Court did observe that structured formula
as provided under Second Schedule would be a safe guide to
calculate the compensation while dealing with a claim made
under Section 166.
17. In Patricia Jean Mahajan5, in light of the facts which
were obtaining in that case, this Court held in paragraphs 19
and 20 of the Report (pgs. 294 and 295) as under:
19. In the present case we find that the parents of the
deceased were 69/73 years. Two daughters were aged
17 and 19 years. The main question, which strikes us in
this case is that in the given circumstances the amount of
multiplicand also assumes relevance. The total amount of
dependency as found by the learned Single Judge and
also rightly upheld by the Division Bench comes to
728
A
[2013] 2 S.C.R.
2,26,297 dollars. Applying multiplier of 10, the amount with

interest and the conversion rate of Rs 47, comes to Rs
10.38 crores and with multiplier of 13 at the conversion
rate of Rs 30 the amount comes to Rs 16.12 crores with
interest. These amounts are huge indeed. Looking to the
Indian economy, fiscal and financial situation, the amount
is certainly a fabulous amount though in the background
of American conditions it may not be so. Therefore, where
there is so much of disparity in the economic conditions
and affluence of the two places viz. the place to which the
victim belongs and the place where the compensation is
to be paid, a golden balance must be struck somewhere,
to arrive at a reasonable and fair mesne. Looking by the
Indian standards they may not be much too
overcompensated and similarly not very much
undercompensated as well, in the background of the
country where most of the dependent beneficiaries reside.
Two of the dependants, namely, parents aged 69/73 years
live in India, but four of them are in the United States. Shri
Soli J. Sorabjee submitted that the amount of multiplicand
shall surely be relevant and in case it is a high amount, a
lower multiplier can appropriately be applied. We find force
in this submission. Considering all the facts and factors as
indicated above, to us it appears that application of
multiplier of 7 is definitely on the lower side. Some
deviation in the figure of multiplier would not mean that
there may be a wide difference between the multiplier
applied and the scheduled multiplier which in this case is
13. The difference between 7 and 13 is too wide. As
observed earlier, looking to the high amount of multiplicand
and the ages of the dependants and the fact that the
parents are residing in India, in our view application of
multiplier of 10 would be reasonable and would provide a
fair compensation i.e. a purchase factor of 10 years. We
accordingly hold that multiplier of 10 as applied by the
learned Single Judge should be restored instead of

[R.M. LODHA, J.]
729
multiplier of 13 as applied by the Division Bench. We find

no force in the submission made on behalf of the claimants
that in no circumstances the amount of multiplicand would
be a relevant consideration for application of appropriate
multiplier. We have already given our reasons in the
discussion held above.
20. The court cannot be totally oblivious to the realities. The
Second Schedule while prescribing the multiplier, had
maximum income of Rs 40,000 p.a. in mind, but it is
considered to be a safe guide for applying the prescribed
multiplier in cases of higher income also but in cases
where the gap in income is so wide as in the present case
income is 2,26,297 dollars, in such a situation, it cannot
be said that some deviation in the multiplier would be
impermissible. Therefore, a deviation from applying the
multiplier as provided in the Second Schedule may have
to be made in this case. Apart from factors indicated earlier
the amount of multiplicand also becomes a factor to be
taken into account which in this case comes to 2,26,297
dollars, that is to say an amount of around Rs 68 lakhs per
annum by converting it at the rate of Rs 30. By Indian
standards it is certainly a high amount. Therefore, for the
purposes of fair compensation, a lesser multiplier can be
applied to a heavy amount of multiplicand. A deviation
would be reasonably permissible in the figure of multiplier
even according to the observations made in the case of
Susamma Thomas1 where a specific example was given
about a person dying at the age of 45 leaving no heirs
being a bachelor except his parents.
18. The noticeable observations in Patricia Jean Mahajan5
are that, (i) for the purposes of fair compensation, a lesser
multiplier can be applied to a heavy amount of multiplicand and
(2) a deviation would be reasonably permissible in the figure
of multiplier in appropriate cases.
19. In Deepal Girishbhai Soni and Others v. United India
730
A
[2013] 2 S.C.R.
A Insurance Co. Ltd. 15, Baroda, the question that arose for
consideration before a three-Judge Bench was, whether a
proceeding under Section 163A of the 1988 Act was a final
proceeding and the claimant, who has been granted
compensation under Section 163A, was debarred from
B proceeding with any further claims on the basis of the fault
liability in terms of Section 166. This Court considered the
statutory provisions contained in the 1988 Act, including
Sections 163A and 166. With regard to Section 163A, the
Court stated as follows:
42. Section 163-A was, thus, enacted for grant of

immediate relief to a section of the people whose annual
income is not more than Rs 40,000 having regard to the
fact that in terms of Section 163-A of the Act read with the
Second Schedule appended thereto, compensation is to
be paid on a structured formula not only having regard to
the age of the victim and his income but also the other
factors relevant therefor. An award made thereunder,
therefore, shall be in full and final settlement of the claim
as would appear from the different columns contained in
the Second Schedule appended to the Act. The same is
not interim in nature. . . . This together with the other heads
of compensation as contained in columns 2 to 6 thereof
leaves no manner of doubt that Parliament intended to lay
a comprehensive scheme for the purpose of grant of
adequate compensation to a section of victims who would
require the amount of compensation without fighting any
protracted litigation for proving that the accident occurred
owing to negligence on the part of the driver of the motor
vehicle or any other fault arising out of use of a motor
vehicle.
xxx xxx xxx
46. Section 163-A which has an overriding effect provides
15. (2004) 5 SCC 385.

[R.M. LODHA, J.]
731
for special provisions as to payment of compensation on

structured-formula basis. Sub-section (1) of Section 163A contains non obstante clause in terms whereof the owner
of the motor vehicle or the authorised insurer is liable to
pay in the case of death or permanent disablement due
to accident arising out of the use of motor vehicle,
compensation, as indicated in the Second Schedule, to the
legal heirs or the victim, as the case may be. .. .
732
A
52. It may be true that Section 163-B provides for an option

to a claimant to either go for a claim under Section 140
or Section 163-A of the Act, as the case may be, but the
same was inserted ex abundanti cautela so as to remove
any misconception in the minds of the parties to the lis
having regard to the fact that both relate to the claim on
the basis of no-fault liability. Having regard to the fact that
Section 166 of the Act provides for a complete machinery
for laying a claim on fault liability, the question of giving an
option to the claimant to pursue their claims both under
Section 163-A and Section 166 does not arise. If the
submission of the learned counsel is accepted the same
would lead to an incongruity.
xxx
xxx
[2013] 2 S.C.R.
xxx.
20. A two-Judge Bench in Abati Bezbaruah7 with reference

to the structured formula set out in the Second Schedule in
1988 Act observed as follows:B
xxx xxx xxx

51. The scheme envisaged under Section 163-A, in our
opinion, leaves no manner of doubt that by reason thereof
the rights and obligations of the parties are to be
determined finally. The amount of compensation payable
under the aforementioned provisions is not to be altered
or varied in any other proceedings. It does not contain any
provision providing for set-off against a higher
compensation unlike Section 140. In terms of the said
provision, a distinct and specified class of citizens, namely,
persons whose income per annum is Rs 40,000 or less
is covered thereunder whereas Sections 140 and 166
cater to all sections of society.
It is now a well-settled principle of law that the payment of

compensation on the basis of structured formula as
provided for under the Second Schedule should not
ordinarily be deviated from. Section 168 of the Motor
Vehicles Act lays down the guidelines for determination of
the amount of compensation in terms of Section 166
thereof. Deviation from the structured formula, however, as
has been held by this Court, may be resorted to in
exceptional cases. Furthermore, the amount of
compensation should be just and fair in the facts and
circumstances of each case.
21. In Shanti Pathak8 a three-Judge Bench of this Court
in a very brief order applied multiplier of 8 for a claim of
compensation in respect of the deceased who was 25 years
at the time of his death.
22. In Oriental Insurance Company Ltd. v. Jashuben and
Ors.16, two-Judge Bench of this Court applied the multiplier of
13 in a case where the age of the deceased was 35 years at
the time of accident.
F
23. In Sarla Verma (Smt.) and Ors. v. Delhi Transport
Corporation and Anr.17, this Court had an occasion to consider
the peculiarities of Section 163A of the 1988 Act vis--vis
Section 166. The Court reiterated what was stated in earlier
G decisions that the principles relating to determination of liability
and quantum of compensation were different for claims made
under Section 163A and claims made under Section 166. It was
stated that Section 163A and the Second Schedule in terms
16. 2008 (4) SCC 162.
17. 2009 (6) SCC 121.

[R.M. LODHA, J.]
733
did not apply to determination of compensation in applications

under Section 166. While stating that Section 163A contains
a special provision, this Court said:
34. . . . . . . Section 163-A of the MV Act contains a special
provision as to payment of compensation on structured
formula basis, as indicated in the Second Schedule to the
Act. The Second Schedule contains a table prescribing the
compensation to be awarded with reference to the age
and income of the deceased. It specifies the amount of
compensation to be awarded with reference to the annual
income range of Rs 3000 to Rs 40,000. It does not specify
the quantum of compensation in case the annual income
of the deceased is more than Rs 40,000. But it provides
the multiplier to be applied with reference to the age of the
deceased. The table starts with a multiplier of 15, goes up
to 18, and then steadily comes down to 5. It also provides
the standard deduction as one-third on account of personal
living expenses of the deceased. Therefore, where the
application is under Section 163-A of the Act, it is possible
to calculate the compensation on the structured formula
basis, even where the compensation is not specified with
reference to the annual income of the deceased, or is more
than Rs 40,000, by applying the formula: (2/3 AI M),
that is two-thirds of the annual income multiplied by the
multiplier applicable to the age of the deceased would be
the compensation. Several principles of tortuous liability
are excluded when the claim is under Section 163-A of the
MV Act.
24. This Court, however, noticed discrepancies/errors in
the multiplier scale given in the Second Schedule table and also
observed that application of table may result in incongruities.
Paras 35 and 36 (pp. 137) of the Report are as follows:
35. There are however discrepancies/errors in the
multiplier scale given in the Second Schedule table. It
prescribes a lesser compensation for cases where a
734
A
higher multiplier of 18 is applicable and a larger

compensation with reference to cases where a lesser
multiplier of 15, 16, or 17 is applicable. From the quantum
of compensation specified in the table, it is possible to
infer that a clerical error has crept in the Schedule and the
multiplier figures got wrongly typed as 15, 16, 17, 18, 17,
16, 15, 13, 11, 8, 5 and 5 instead of 20, 19, 18, 17, 16,
15, 14, 12, 10, 8, 6 and 5.
36. Another noticeable incongruity is, having prescribed the
notional minimum income of non-earning persons as Rs
15,000 per annum, the table prescribes the compensation
payable even in cases where the annual income ranges
between Rs 3000 and Rs 12,000. This leads to an
anomalous position in regard to applications under Section
163-A of the MV Act, as the compensation will be higher
in cases where the deceased was idle and not having any
income, than in cases where the deceased was honestly
earning an income ranging between Rs 3000 and Rs
12,000 per annum. Be that as it may.
25. While referring to the decisions of this Court in New
India Assurance Company Ltd. v. Charlie and Anr.18, T.N.
State Road Transport Corporation v. S. Rajapriya and Ors.19
and U.P. State Road Transport Corporation v. Krishna Bala
and Ors.20, this Court in Sarla Verma17 in paragraph 39 (pg.
138) of the Report observed as follows:
39. In New India Assurance Co. Ltd. v. Charlie this Court
noticed that in respect of claims under Section 166 of the
MV Act, the highest multiplier applicable was 18 and that
the said multiplier should be applied to the age group of
21 to 25 years (commencement of normal productive
years) and the lowest multiplier would be in respect of
18. 2005 (10) SCC 720.
19. 2005 (6) SCC 236.
[2013] 2 S.C.R.
20. 2006 (6) SCC 249.
735

[R.M. LODHA, J.]
persons in the age group of 60 to 70 years (normal retiring

age). This was reiterated in T.N. State Transport Corpn.
Ltd. v. S. Rajapriya and U.P. SRTC v. Krishna Bala.
26. In Sarla Verma17, this Court undertook the exercise of
comparing the multiplier indicated in Susamma Thomas 1,
Trilok Chandra3 and Charlie18, for claims under Section 166
of the 1988 Act with the multiplier mentioned in the Second
Schedule for claims under Section 163A (with appropriate
deceleration after 50 years) as follows:
Age of
Deceased
(1)
Multiplier
Scale as
envisaged
in
Susamma
Thomas 1
Multiplier
Scale as
adopted
by Trilok
Chandra 3
Multiplier
Scale in
Trilok
Chandra3
as
clarified
in
Charlie18
Multiplier
Specified
in Second
Column in
the Table
in Second
Schedule
to the MV
Act
Multiplier
actually
used in
Second
Schedu-le to the
MV Act
(as seen
from the
quantum
of compe-nsation)
(2)
(3)
(4)
(5)
(6)
Upto 15 years
15
20
15 to 20 years
16
18
18
16
19
21 to 25 years
15
17
18
17
18
26 to 30 years
14
16
17
18
17
31 to 35 years
13
15
16
17
16
36 to 40 years
12
14
15
16
15
41 to 45 years
11
13
14
15
14
46 to 50 years
10
12
13
13
12
51 to 55 years
11
11
11
10
56 to 60 years
10
09
736
A
[2013] 2 S.C.R.
61 to 65 years
08
07
Above 65 years
05
05
27. In paragraph 42 (pg. 140) of the Report, this Court in

Sarla Verma17 laid down that the multiplier shall be used in a
B given case in the following manner:
42. We therefore hold that the multiplier to be used should

be as mentioned in Column (4) of the table above
(prepared by applying Susamma Thomas, Trilok
Chandra and Charlie), which starts with an operative
multiplier of 18 (for the age groups of 15 to 20 and 21 to
25 years), reduced by one unit for every five years, that is
M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15
for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for
46 to 50 years, then reduced by two units for every five
years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60
years, M-7 for 61 to 65 years and M-5 for 66 to 70 years.
28. The above exercise was undertaken in Sarla Verma17

to ensure uniformity and consistency in the selection of multiplier
while awarding compensation in motor accident claims made
E under Section 166.
29. Section 168 of the 1988 Act provides the guideline that
the amount of compensation shall be awarded by the claims
tribunal which appears to it to be just. The expression, just
means that the amount so determined is fair, reasonable and
equitable by accepted legal standards and not a forensic
lottery. Obviously just compensation does not mean perfect
or absolute compensation. The just compensation principle
requires examination of the particular situation obtaining
uniquely in an individual case.
30. Almost a century back in Taff Vale Railway Co. v.
Jenkins21, the House of Lords laid down the test that award of
damages in fatal accident action is compensation for the
reasonable expectation of pecuniary benefit by the deceaseds
21. (1913) AC 1.

[R.M. LODHA, J.]
737
family. The purpose of award of compensation is to put the

dependants of the deceased, who had been bread-winner of
the family, in the same position financially as if he had lived his
natural span of life; it is not designed to put the claimants in a
better financial position in which they would otherwise have
been if the accident had not occurred. At the same time, the
determination of compensation is not an exact science and the
exercise involves an assessment based on estimation and
conjectures here and there as many imponderable factors and
unpredictable contingencies have to be taken into
consideration.
31. This Court in C.K. Subramania Iyer and Ors. v.
T.Kunhikuttan Nair and Ors.22, reiterated the legal philosophy
highlighted in Taff Vale Railway21 for award of compensation
in claim cases and said that there is no exact uniform rule for
measuring the value of the human life and the measure of
damages cannot be arrived at by precise mathematical
calculations. Obviously, award of damages in each case would
depend on the particular facts and circumstances of the case
but the element of fairness in the amount of compensation so
determined is the ultimate guiding factor.
32. In Susamma Thomas 1, this Court though with
reference to Section 110B of the Motor Vehicles Act, 1939
stated that the multiplier method was the accepted norm of
ensuring the just compensation which will make for uniformity
and certainty of the awards. We are of the opinion that this
statement in Susamma Thomas1 is equally applicable to the
fatal accident claims made under Section 166 of the 1988 Act.
In our view, the determination of compensation based on
multiplier method is the best available means and the most
satisfactory method and must be followed invariably by the
tribunals and courts.
738
A
33. We have already noticed the table prepared in Sarla

Verma17 for the selection of multiplier. The table has been
22. 1970 (2) SCR 688.
[2013] 2 S.C.R.
17
A prepared in Sarla Verma having regard to the three decisions
of this Court, namely, Susamma Thomas1, Trilok Chandra3
and Charlie18 for the claims made under Section 166 of the
1988 Act. The Court said that multiplier shown in Column (4)
of the table must be used having regard to the age of the
B deceased. Perhaps the biggest 17advantage by employing the
table prepared in Sarla Verma is that the uniformity and
consistency in selection of the multiplier can be achieved. The
assessment of extent of dependency depends on examination
of the unique situation of the individual case. Valuing the
dependency or the multiplicand is to some extent an arithmetical
C
exercise. The multiplicand is normally based on the net annual
value of the dependency on the date of the deceaseds death.
Once the net annual loss (multiplicand) is assessed, taking into
account the age of the deceased, such amount is to be
multiplied by a multiplier to arrive at the loss of dependency.
D In Sarla Verma17, this Court has endeavoured to simplify the
otherwise complex exercise of assessment of loss of
dependency and determination of compensation in a claim
made under Section 166. It has been rightly stated in Sarla
Verma17 that claimants in case of death claim for the purposes
E of compensation must establish (a) age of the deceased; (b)
income of the deceased; and (c) the number of dependants.
To arrive at the loss of dependency, the Tribunal must consider
(i) additions/deductions to be made for arriving at the income;
(ii) the deductions to be made towards the personal living
F expenses of the deceased; and (iii) the multiplier to be applied
with reference to the age of the deceased. We do not think it
is necessary for us to revisit the law on the point as we are in
full agreement with the view in Sarla Verma17.
34. If the multiplier as indicated in Column (4) of the table

G read with paragraph 42 of the Report in Sarla Verma17 is
followed, the wide variations in the selection of multiplier in the
claims of compensation in fatal accident cases can be avoided.
A standard method for selection of multiplier is surely better
than a criss-cross of varying methods. It is high time that we
H move to a standard method of selection of multiplier, income

[R.M. LODHA, J.]
739
for future prospects and deduction for personal and living

expenses. The courts in some of the overseas jurisdictions have
made this advance. It is for these reasons, we think we must
approve the table in Sarla Verma17 for the selection of multiplier
in claim applications made under Section 166 in the cases of
death. We do accordingly. If for the selection of multiplier,
Column (4) of the table in Sarla Verma17 is followed, there is
no likelihood of the claimants who have chosen to apply under
Section 166 being awarded lesser amount on proof of
negligence on the part of the driver of the motor vehicle than
those who prefer to apply under Section 163A. As regards the
cases where the age of the victim happens to be upto 15 years,
we are of the considered opinion that in such cases
irrespective of Section 163A or Section 166 under which the
claim for compensation has been made, multiplier of 15 and
the assessment as indicated in the Second Schedule subject
to correction as pointed out in Column (6) of the table in Sarla
Verma17 should be followed. This is to ensure that claimants in
such cases are not awarded lesser amount when the
application is made under Section 166 of the 1988 Act. In all
other cases of death where the application has been made
under Section 166, the multiplier as indicated in Column (4) of
the table in Sarla Verma17 should be followed.
35. With regard to the addition to income for future
prospects, in Sarla Verma17, this Court has noted earlier
decisions in Susamma Thomas 1, Sarla Dixit 2 and Abati
Bezbaruah7 and in paragraph 24 of the Report held as under:
24.In view of the imponderables and uncertainties, we
are in favour of adopting as a rule of thumb, an addition
of 50% of actual salary to the actual salary income of the
deceased towards future prospects, where the deceased
had a permanent job and was below 40 years. (Where the
annual income is in the taxable range, the words actual
salary should be read as actual salary less tax). The
addition should be only 30% if the age of the deceased
740
A
[2013] 2 S.C.R.
was 40 to 50 years. There should be no addition, where

the age of the deceased is more than 50 years. Though
the evidence may indicate a different percentage of
increase, it is necessary to standardise the addition to
avoid different yardsticks being applied or different
methods of calculation being adopted. Where the
deceased was self-employed or was on a fixed salary
(without provision for annual increments, etc.), the courts
will usually take only the actual income at the time of death.
A departure therefrom should be made only in rare and
exceptional cases involving special circumstances.
36. The standardization of addition to income for future

prospects shall help in achieving certainty in arriving at
appropriate compensation. We approve the method that an
addition of 50% of actual salary be made to the actual salary
D income of the deceased towards future prospects where the
deceased had a permanent job and was below 40 years and
the addition should be only 30% if the age of the deceased was
40 to 50 years and no addition should be made where the age
of the deceased is more than 50 years. Where the annual
E income is in the taxable range, the actual salary shall mean
actual salary less tax. In the cases where the deceased was
self-employed or was on a fixed salary without provision for
annual increments, the actual income at the time of death
without any addition to income for future prospects will be
F appropriate. A departure from the above principle can only be
justified in extraordinary circumstances and very exceptional
cases.
37. As regards deduction for personal and living expenses,
in Sarla Verma17, this Court considered Susamma Thomas1,
G
Trilok Chandra3 and Fakeerappa23 and finally in paras 30, 31
and 32 of the Report held as under:
30.Having considered several subsequent decisions
23. Fakeerappa and Anr. v. Karnatka Cement Pipe Factory and others: [(2004)
2 SCC 473.

[R.M. LODHA, J.]
741
of this Court, we are of the view that where the deceased

was married, the deduction towards personal and living
expenses of the deceased, should be one-third (1/3rd)
where the number of dependent family members is 2 to
3, one-fourth (1/4th) where the number of dependent family
members is 4 to 6, and one-fifth (1/5th) where the number
of dependent family members exceeds six.
31. Where the deceased was a bachelor and the claimants
are the parents, the deduction follows a different principle.
In regard to bachelors, normally, 50% is deducted as
personal and living expenses, because it is assumed that
a bachelor would tend to spend more on himself. Even
otherwise, there is also the possibility of his getting married
in a short time, in which event the contribution to the
parent(s) and siblings is likely to be cut drastically. Further,
subject to evidence to the contrary, the father is likely to
have his own income and will not be considered as a
dependant and the mother alone will be considered as a
dependant. In the absence of evidence to the contrary,
brothers and sisters will not be considered as dependants,
because they will either be independent and earning, or
married, or be dependent on the father.
32. Thus even if the deceased is survived by parents and
siblings, only the mother would be considered to be a
dependant, and 50% would be treated as the personal and
living expenses of the bachelor and 50% as the
contribution to the family. However, where the family of the
bachelor is large and dependent on the income of the
deceased, as in a case where he has a widowed mother
and large number of younger non-earning sisters or
brothers, his personal and living expenses may be
restricted to one-third and contribution to the family will be
taken as two-third.
38. The above does provide guidance for the appropriate
deduction for personal and living expenses. One must bear in
742
A
[2013] 2 S.C.R.
A mind that the proportion of a mans net earnings that he saves

or spends exclusively for the maintenance of others does not
form part of his living expenses but what he spends exclusively
on himself does. The percentage of deduction on account of
personal and living expenses may vary with reference to the
B number of dependant members in the family and the personal
living expenses of the deceased need not exactly correspond
to the number of dependants.
39. In our view, the standards fixed by this Court in Sarla
Verma 17 on the aspect of deduction for personal living
C expenses in paragraphs 30, 31 and 32 must ordinarily be
followed unless a case for departure in the circumstances noted
in the preceding para is made out.
40. In what we have discussed above, we sum up our
D conclusions as follows:
(i) In the applications for compensation made under
Section 166 of the 1988 Act in death cases where the age of
the deceased is 15 years and above, the Claims Tribunals shall
select the multiplier as indicated in Column (4) of the table
E
prepared in Sarla Verma17 read with para 42 of that judgment.
(ii) In cases where the age of the deceased is upto 15

years, irrespective of the Section 166 or Section 163A under
which the claim for compensation has been made, multiplier
of 15 and the assessment as indicated in the Second Schedule
subject to correction as pointed out in Column (6) of the table
in Sarla Verma17 should be followed.
(iii) As a result of the above, while considering the claim

applications
made under Section 166 in death cases where the
G
age of the deceased is above 15 years, there is no necessity
for the Claims Tribunals to seek guidance or for placing reliance
on the Second Schedule in the 1988 Act.
H
(iv) The Claims Tribunals shall follow the steps and

[R.M. LODHA, J.]
743
guidelines stated in para 19 of Sarla Verma17 for determination

of compensation in cases of death.
(v) While making addition to income for future prospects,
the Tribunals shall follow paragraph 24 of the Judgment in Sarla
Verma17.
(vi) Insofar as deduction for personal and living expenses
is concerned, it is directed that the Tribunals shall ordinarily
follow the standards prescribed in paragraphs 30, 31 and 32
of the judgment in Sarla Verma17 subject to the observations
made by us in para 38 above.
[2013] 2 S.C.R. 744

A
APRIL 03, 2013

[H.L. GOKHALE AND RANJAN GOGOI, JJ.]
C
(vii) The above propositions mutatis mutandis shall apply

to all pending matters where above aspects are under
consideration.
41. The reference is answered accordingly. Civil appeals
shall now be posted for hearing and disposal before the regular
Bench.
R.P.
Reference answered.
ASSTT. GENERAL MANAGER, KARNATAKA STATE

FINANCIAL CORPORATION
v.
GENERAL SECRETARY, MYSORE DIVISION INDUSTRIAL
WORKERS GENERAL UNION AND ORS.
(Special Leave Petition (Civil) No. 8684 of 2010)
STATE FINANCIAL CORPORATIONS ACT, 1951,
s. 46-B -Industrial concern closed down - Recovery of

dues of workmen as also of State Financial Corporation Held: Workmen had their rights adjudicated in the year 2005,
D and court had held that they were entitled to their dues u/s.33C of the Industrial Disputes Act as well as under Payment of
Gratuity Act -- Labour Commissioner did not proceed with the
proceedings for realizing claims of workmen which he was
expected to realize from sale proceeds of assets of company
-- Merely because appellant Financial Corporation
E
subsequently sold the properties, that by itself cannot destroy
rights of workmen as held by competent courts -- Under s.46B, provisions of 1951 Act shall be applicable in addition to,
and not in derogation of any other law for the time being
applicable to an industrial concern -- High Court compared
F claim of petitioner with claims of workmen where a company
goes into liquidation and held that dues of workmen shall
have preference -- Comparison has to be seen with proper
perspective and that has to be seen on the backdrop of s. 46B -- There is no error in the order of High Court - Industrial
G Disputes Act,1947 - ss.33-C- Payment of Gratuity Act, 1972.
Central Bank of India vs. Sriguppa Sugars & Chemicals
Ltd. and Ors. 2007(8) SCR 898 = (2007) 8 SCC 353 and
H
744
A.G.M., KARNATAKA STATE FINANCIAL CORPN. v. GEN. 745

SEC., MYSORE DIV. IND. WORKERS GENERAL UNION
Union of India and Ors. vs. Sicom Limited and Another, 2008
(17)SCR 120 = (2009) 2 SCC 121 -distinguished.
746
A
Case Law Reference:

2007 (8) SCR 898
distinguished
para 7
2008 (17) SCR 120
distinguished
para 7
CIVIL APPELLATE JURISDICTION : Special Leave

Petition (Civil) No. 8684 of 2010.
From the Judgment and order dated 16.12.2009 of the
High Court of Karnataka at Bangalore in WA No. 1382 of 2009.
Kiran Suri, S.J. Amith, Nakibur Rahman Barbuiya for the

Petitioner.
V.N. Raghupathy, Shailesh Madiyal, Muthu Kumar K.V.,
Anitha Shenoy for the Respondents.
The following order of the Court was delivered

ORDER
1. Heard Ms. Kiran Suri, learned counsel for the appellant

in support of this petition and Mr. Raghupathy, learned counsel
appearing for the respondent Trade Union.
2. This special leave petition seeks to challenge the
judgement and order dated 16.12.2009 rendered by a Division
Bench of the Karnataka High Court in Writ Appeal No.1382/
2009 whereby the writ appeal filed by the respondents was
allowed, and the order passed by the learned Single Judge of
the High Court dismissing Writ Petition No.4529/2009 filed by
the respondent was set aside.
3. The short facts leading to the present special leave

petition are this wise: The respondent No.1 is a Trade Union
registered under the Trade Unions Act, 1926 and was
H
[2013] 2 S.C.R.
A representing the workmen of the industrial concern known as

Mysore Panel and Boards Pvt. Ltd. This company closed down
its manufacturing activities sometime in January, 2002, leaving
some 83 workmen jobless. Consequent upon the closure of the
said company, there were various statutory and legal dues of
B the workmen, and for that purpose they filed Applications under
Section 33-C of the Industrial Disputes Act, 1947 as well as
under the Payment of Gratuity Act. Those applications were
allowed by the concerned authorities. Thus, one Application
was allowed by order dated 4.3.2005 for a claim of
C Rs.4,71,781/-, another Application was allowed by the order
dated 30.8.2005 for a claim of Rs.16,66,585/- and the third
Application filed under the Payment of Gratuity Act was allowed
by order dated 13.9.2005 for a sum of Rs.7,78,696/-, resulting
into total dues of Rs.29,17,062/-. Having waited sufficiently, the
respondent Trade Union wrote to the Deputy Commissioner of
D
the Mysore District, Mysore by its letter dated 28.8.2008
seeking recovery of these amounts.
4. It so transpired that the Deputy Commissioner, Mysore
District was not quick enough in taking the necessary steps,
E whereas the petitioner Corporation which had its claim against
this company, proceeded to sell the leasehold rights of the
company for realizing the amount of Rs.24,00,000/-. The claim
of the workmen as aforesaid was for Rs.29,17,062/-. Fearing
that the amount recovered by the sale of the leasehold rights
F of the company will seriously erode the dues of workmen, the
respondents filed a writ petition before the High Court. The first
prayer in the writ petition was for issue of a writ of mandamus
or direction to the Deputy Commissioner, Mysore District to
take immediate steps to proceed against the Company for
G recovery of statutory and legal dues of the workmen as arrears
of land revenue by selling the assets of the Company. Prayer
(b) of the writ petition was to seek writ of mandamus or direction
or order to the Karnataka State Financial Corporation, which
is the petitioner herein, not to appropriate the sale proceeds
H from the sale of machinery and other assets (realized pursuant

to the public auction) and to apportion the same to satisfy the

claims of the workmen in accordance with law.
5. The learned Single Judge of the Karnataka High Court
dismissed this writ petition, though the appeal therefrom was
allowed by a Division Bench of the High Court. Being
aggrieved by the judgment and order passed by the Division
Bench of the High Court, the present special leave petition has
been filed by the petitioner.
6. The submission of Ms. Kiran Suri, learned counsel for
the appellant Corporation is that under Section 29 of the State
Financial Corporations Act, 1951, the Financial Corporation
has a right to take over the management or possession of the
properties or both of the industrial concern, and this right has
precedence over all other claims. She relies upon Section 31
of the said Act which gives special provisions for enforcement
of the claims of the Financial Corporation. Ms. Suri criticises
the judgment of the High Court which looked into the proviso
to Section 529 of the Companies Act, 1956 under which the
dues of the workmen are given a precedence. The submission
of Ms. Suri was that unless the liquidation proceedings are
taken, the rights of the workmen under Section 529 of the
Companies Act cannot fructify, and until then those rights cannot
have any precedence over the rights of the State Financial
Corporation under Sections 29 & 31 of the State Financial
Corporations Act, 1951.
7. The learned counsel relies upon a few decisions of this
Court. Firstly, on Central Bank of India vs. Sriguppa Sugars
& Chemicals Ltd. and Ors., (2007) 8 SCC 353. In that case,
this Court has held that the rights of the appellant Bank had
precedence over the workmen's dues and the statutory rights,
like that of the Cane Commissioner. She relies upon particularly
paragraphs 16 and 17 of the said judgment where it has been
held that the rights of the appellant Bank cannot be affected by
the orders of the Cane Commissioner and both the Cane
Commissioner, and the workmen, in the absence of a
748
A
8. We may we refer to Section 46-B of the State Financial

C Corporations Act, 1951 which reads as follows:
[2013] 2 S.C.R.
A liquidation, stand only as unsecured creditors and their rights

cannot prevail over the rights of the workmen. She has also
relied upon the decision of this Court in the case of Union of
India and Ors. vs. Sicom Limited and Another, (2009) 2 SCC
121, and particularly paragraphs 16 and 23 thereof. In
B paragraph 23, Section 46-B which deals with the rights of the
State Financial Corporation, has been referred to, and it is held
that the non obstante clause in that Section will not only prevail
over the contract but also other laws.
"46B. Effect of Act on other laws.- The provision of this Act

and of any rule or orders made thereunder shall have effect
notwithstanding anything inconsistent therewith contained
in any other law for the time being in force or in the
memorandum or articles of association of an industrial
concern or in any other instrument having effect by virtue
of any law other than this Act, but save as aforesaid, the
provisions of this Act shall be in addition to, and not in
derogation of, any other law for the time being applicable
to an industrial concern." (emphasis supplied)
9. The two authorities relied upon by Ms. Suri will have to

be looked at in a proper perspective. As far as the judgment
of this Court in Central Bank of India (supra) is concerned, the
F Court has not discussed the provision of Section 46-B and
particularly, the later part thereof, which specifically lays down
that the provisions of the State Financial Corporations Act,
1951 shall be applicable in addition to, and not in derogation
of any other laws for the time being applicable to an industrial
G concern. Similarly, the judgment in Sicom Limited (supra),
though refers to the provision of Section 46-B of the State
Financial Corporations Act, 1951, does not deal with the effect
thereof.
H
10. In the present case, as we have noted above, the

workmen had their rights adjudicated way back in the year

2005, and the Court concerned had held that they were entitled
to their dues under Section 33-C of the Industrial Disputes Act,
1947 as well as under the Payment of Gratuity Act.
Unfortunately, the Labour Commissioner had not proceeded
with the proceedings for realizing the claims of the workmen
which he was expected to realize from the sale proceeds of
the assets of the company. Merely because the appellant
Financial Corporation subsequently sold the properties, that by
itself cannot destroy the rights of the workmen which they had
under the orders passed by the competent Courts. Under
Section 46-B, the provisions of the State Financial
Corporations Act shall be applicable in addition to, and not in
derogation of any other law for the time being applicable to an
industrial concern. The High Court compared the claim of the
petitioner with the claims of the workmen where a company
goes into liquidation and held that the dues of the workmen shall
have preference. The comparison has to be seen with proper
perspective and that has to be seen on the backdrop of Section
46-B of the Act. We do not find any error in the order passed
by the High Court. This special leave petition is, therefore,
dismissed.
R.P.
SLP dismissed.
[2013] 2 S.C.R. 750

A
S. KESARI HANUMAN GOUD

v.
ANJUM JEHAN & ORS.
(Civil Appeal Nos. 2885-2887 of 2005 etc.)
APRIL 10, 2013
[DR. B.S. CHAUHAN AND FAKKIR MOHAMED
IBRAHIM KALIFULLA, JJ.]
CODE OF CIVIL PROCEDURE, 1908:
s.96 read with O. 41, r.31 - First appeal before High Court
challenging the judgment and decree passed in a suit for
specific performance of agreement to sell - High Court holding
that the plaintiff was not ready and willing to perform his part
of contract - Held: Finding recorded by High Court on this
D
issue is perverse being contrary to evidence on record Further, High Court while deciding the first appeal u/s 96, did
not consider all the issues as is required under O. 41, r.31 Judgment and decree passed by High Court set aside and
that passed by trial court restored - Appellant directed to
E refund the amount of compensation to first respondent along
with 9% interest.
O. 3, rr. 1 and 2 - Recognized agent - Power of attorney

holder - Held: It is a settled legal proposition that power of
attorney holder cannot depose in place of the principal - Nor
can he depose for the principal in respect of a matter, as
regards which, only the principal can have personal
knowledge and in respect of which, the principal is entitled to
be cross-examined.
The appellant in C.A Nos. 2885-2887 of 2005 filed Suit
No. 30 of 1984 against respondent no. 1 (defendant no.
1) for specific performance of the agreement to sell
entered into between the parties on 15.10.1977 and for
750
S. KESARI HANUMAN GOUD v. ANJUM JEHAN
751
directing respondent no. 1 to execute a registered sale

deed in his favour ignoring the agreement to sell in
favour of respondents/defendants no. 3, 6 and 7 which
were entered into despite the public notice issued by the
plaintiff. It was the case of the plaintiff that he had always
been ready and willing to perform his part and it was the
first defendant who evaded to perform her part of the suit
agreement. Respondent/defendant no. 1 denied the plaint
allegation and stated that when the plaintiff failed to raise
necessary money, he informed her that she was at liberty
to sell the property to anyone. Respondent no. 3/
defendant no. 7 also filed Suit No. 135 of 1984 for
perpetual injunction restraining the plaintiff from
interfering with the construction of a theatre building
including the compound wall which was in close
proximity to his land. During the pendency of the suit
respondent no. 1 executed and got registered a sale deed
in favour of respondent no. 2/defendant no. 3 with
respect to a part of the suit property. Further, the GPA
holder also got registered another sale deed in favour of
respondent no. 2/defendant no. 3 with respect to a part
of the suit land. The trial court decreed the suit of the
appellant except for a small area which had been
purchased by defendant no. 6. The suit filed by
respondent no. 3/defendant no. 7 was also dismissed. In
the appeals preferred by both sides, the High Court held
that the plaintiff-appellant was not ready and willing to
perform his part of contract. However, it held the plaintiff
entitled to get the sale deed execuited in respect of the
land excluding the land sold to defendants nos. 3, 6 and
7. Both the sides filed the appeals.
752
A
HELD: 1.1 The plaint contained a specific averment

that the plaintiff had always been ready and willing to
perform his part. In the written statement the said
averment was simply denied. In the replication the

plaintiff stated that he was capable of raising necessary
finance. The appellant/plaintiff examined himself as PW.1,
and in his cross-examination he has denied any
suggestion made to him to the effect that he had ever
B informed the power of attorney holder of respondent No.1
that he would be unable to raise the balance of the sale
consideration. With respect to the issue regarding
financial capacity to pay, the appellant/plaintiff examined
PW.2 and PW.3. They fully supported his case, deposing
C that he was a man of means, and that he had sufficient
properties and the means to purchase the said suit
property. The finding recorded by the High Court on this
issue is perverse being contrary to the evidence on
record. [para 8-12] [761-C-E; 762-B-D; 763-A-B]
D
[2013] 2 S.C.R.
Disposing the appeals, the Court
1.2 It is a settled legal proposition that the power of

attorney holder cannot depose in place of the principal.
Provisions of O. 3, rr. 1 and 2 CPC empower the holder
of the power of attorney to "act" on behalf of the
principal. The term "act", would not include deposing in
place and instead of the principal. Similarly, the powerof-attorney holder cannot depose for the principal in
respect of a matter, as regards which, only the principal
can have personal knowledge and in respect of which,
the principal is entitled to be cross-examined. [para 13]
[763-C-F]
Vidhyadhar v. Manikrao & Anr., 1999 (1) SCR 1168 =

AIR 1999 SC 1441; Janki Vashdeo Bhojwani v. Indusind Bank
Ltd., 2004 (6) Suppl. SCR 681 = (2005) 2 SCC 217; M/S
Shankar Finance and Investment v. State of A.P & Ors., 2008
G
(10) SCR 905 = AIR 2009 SC 422; and Man Kaur v. Hartar
Singh Sangha 2010 (12) SCR 515 = (2010) 10 SCC 512 relied on.
1.3 So far as the notice of the agreement between the
H appellant and respondent No. 1 is concerned, the trial
753
court after taking note of the recital of the said agreement

in the agreement to sell and sale deed also, has held, that,
so far as the land sold to the respondents other than
respondent no.6 is concerned, the parties had been fully
aware of the same. Only respondent no.6 had no such
notice. It has been conceded on behalf of the appellant
that the same being a very small area, the appellant is not
willing to disturb the possession of respondent no.6.
[para 14] [763-G-H; 764-A]
2.The judgment and decree passed by the High Court
is set aside, and that passed by the trial court is restored.
As a consequence, the appellant is entitled to get the sale
deed executed and registered, with respect to all the suit
land available (minus the land acquired and the land
purchased by respondent no.6). The appellant is directed
to refund the amount of compensation to respondent no.
1 along with 9% interest. [para 16-17] [764-D-E]
754
A
relied on
para 13
2004 (6) Suppl. SCR 681
relied on
para 13
2008 (10) SCR 905
relied on
para 13
2010 (12) SCR 515
relied on
para 13

2885-2887 of 2005.
High Court of Judicature Andhra Pradesh in C.C.C. Appeal
Nos. 34, 33 of 1991 and 92 of 1993.
A Kumar, Vijay Prakash, Sohan Singh Rana, Bindra Rana,

Vikrant Rana, Piyush Kumar (For S.S. Rana & Co.), Vishal
Yadav, R. Santhan Krishnan, Praveen Kumar Pandey, Aditya
A., D. Mahesh Babu, A.V. Rangam, Richa Bharadwaja, Abhijit
Sengupta for the Appearing Parties.
B
Civil Appeal Nos. 2885-2887 of 2005

C
1. These appeals have been preferred against the

judgment and order dated 10.6.2003 by the High Court of
Judicature, Andhra Pradesh at Hyderabad in C.C.C.A. Nos.34
and 33 of 1991 and C.C.C.A.No. 92 of 1993, by way of which
the appeals filed by the respondents against the common
D judgment and decree dated 22.3.1991, in O.S. No.30 of 1984
and O.S. No.135 of 1984, passed by the court of the Additional
Chief Judge, City Civil Court, Hyderabad, have been partly
allowed, by modifying the said judgment and order of the trial
court.
E
2. Facts and circumstances giving rise to these appeals
are that:
WITH
C.A. Nos. 2888 and 4459 of 2005.
Anoop G. Chaudhari, A.T.M. Rangaramanujam, P. Vinay
[2013] 2 S.C.R.
DR. B.S.CHAUHAN, J.
Case Law Reference:

1999 (1) SCR 1168
A. The appellant/plaintiff was carrying on business prior to

1.1.1978 in the appurtenant land as a tenant, and had made
an offer to purchase the said premises, alongwith two other
premises belonging to the landlady Ms. Anjum Jehan respondent No.1/defendant No.1 (hereinafter referred to as
`Res.No.1').
B. The parties entered into an agreement dated

15.10.1977, for the sale of land admeasuring 1200 square
yards situated at Musheerabad, Hyderabad, Andhra Pradesh,
for a total consideration of Rs.1,70,070/-. Out of which a sum
of Rs.25,000/- was paid as earnest money. The said agreement
H to sell, provided that the sale deed was to be executed within

[DR. B.S. CHAUHAN, J.]
755
a period of six months from the date of agreement, or upon

intimation by the vendor, as she had to obtain permission from
the competent authority under Section 27 of the Urban Land
Ceiling Act, 1976 (hereinafter referred to as `the Act 1976), the
necessary income tax clearances and the sub division
permission from the municipal corporation. The aforesaid suit
land was also in the possession of the landlady, and had partly
been occupied by defendant no. 2/respondent (Narsoji).
C. After the execution of the said agreement to sell, the
appellant/plaintiff paid non-agricultural assessment tax. A legal
notice dated 18.6.1979 was received by the appellant from
Res. No.1 Ms. Anjum Jehan, stating that she had obtained
requisite permission from the statutory authorities under the Act
1976, from the income tax authorities, and also from the subdivisional authorities.
756
F. Despite the said notice, the GPA holder of Res. No.1

entered into two different agreements to sell with respondent
no. 2/defendant no.3 (K.S.R.Murthy) on 29/30.4.1980, for open
land admeasuring 510 square yards.
G. The appellant/plaintiff filed a suit bearing O.S. No. 30
of 1984 on 23.6.1983 for specific performance of the
[2013] 2 S.C.R.
A agreement to sell dated 15.10.1977, directing the Res. No.1

to execute a registered sale deed in favour of the appellant/
plaintiff, and ignoring the agreement to sell in favour of
respondent/defendant nos.3, 6 and 7.
H. Respondent no.3/Defendant No. 7 (K.Y. Rajaiah) filed

Original Suit No. 135 of 1984 on 27.12.1983, for perpetual
injunction, restraining the appellant/plaintiff from interfering with
the construction of a theatre building, including the compound
wall of the same, which was in close proximity to his land.
I. During the pendency of these two suits, Res.No.1

executed a sale deed, and she got the same registered on
29.4.1985, in favour of respondent no.2/defendant no.3 with
respect to the part of the suit property admeasuring 260 square
yards, and the recital of the sale deed acknowledged the
D agreement between the appellant/plaintiff and Res. No.1.
D. The appellant/plaintiff asked Res. No.1 vide letter dated

2.7.1979, to send the copies of the aforesaid permissions, as
well as a copy of the General Power of Attorney (hereinafter
referred to as the `GPA'), that had been executed by her.
E. Instead of executing the sale-deed in favour of the
appellant/plaintiff, Res. No.1 tried to sell the suit property to other
persons. Therefore, the appellant/plaintiff got a public notice
published in local newspapers on 29.4.1980 and 30.4.1980, in
respect of the suit property, stating that an agreement to sell
had been executed between the parties as regards the said
land, and that therefore, no other person must purchase the
same.
J. The GPA holder registered another sale deed in favour

of respondent no.2/defendant no. 3 on 30.4.1985, with respect
to the suit property admeasuring 260 square yards.
E
K. The trial court, vide judgment and decree dated

22.3.1991 decreed the suit of the appellant/plaintiff except for
a small area admeasuring 65 square yards, which had been
purchased by defendant no.6 (represented by Lrs. defendant
nos.6 to 10), observing that the said defendant had no
knowledge of any agreement to sell between the appellant/
plaintiff and Res. No.1. The trial court also dismissed Suit
No.135 of 1984 that had been filed by respondent no.3/
defendant No.7 (K.Y. Rajaiah).
L. The appellant/plaintiff was directed to deposit the
balance consideration amount in the trial court within a period
of four weeks, and the same was duly deposited by the
appellant/plaintiff on 6.4.1991.
M. Both sides preferred appeals before the High Court,

757
and all the appeals were disposed of by a common judgment

dated 10.6.2003, as referred to hereinabove.
N. The High Court held, that the appellant/plaintiff was not
ready and willing to perform his part of the contract, thus, in view
of the same, there was no occasion to decide issues regarding
whether the subsequent purchasers were in fact, bonafide
purchasers for consideration without notice of the agreement
to sell between the appellant/plaintiff and Res. No.1. However,
the court further held, that the appellant/plaintiff would be entitled
to get the sale deed executed in respect of the said land,
excluding the land sold to defendant nos.3, 6 and 7 at the rate
of Rs.750/- per square yard, adjusting the amount that had
already been paid.
O. Res.No.1 filed a Review Petition before the High Court.
During the pendency of the said review petition, both the sides
have preferred these appeals. The Review Petition filed by Res.
No.1 stood dismissed vide order dated 20.2.2004. The said
order is also under challenge before us in connected appeal
Nos. 2888 and 4459 of 2005.
Hence, these appeals.
3. Shri Anoop G. Chaudhari, learned senior counsel
appearing on behalf of the appellant/plaintiff, has submitted that
the High Court, while dealing with the first appeal, has decided
the same under Section 96 of the Code of Civil Procedure,
1908 (hereinafter referred to as `the CPC'), giving strict
adherence to Order XLI Rule 31 CPC, and thus that it ought to
have dealt with each and every issue, and appreciate all the
evidence on record. It was under an obligation to record
findings on each issue separately. The High Court has
committed an error in appreciating the evidence on record, and
coming to the conclusion that the appellant/plaintiff was not
ready and willing to perform his part of the contract, as the
appellant/plaintiff had in fact been issuing public notices, with
the intention of making other people aware of the fact that they
758
A
[2013] 2 S.C.R.
A must not indulge in any kind of transaction in respect of the suit

property, as the same belonged to him. He also had the
financial capacity to pay, which stood proved by the fact that
within a period of three weeks from the date of judgment and
decree of the High Court, he deposited the entire amount.
B Furthermore, the High Court ought to have appreciated the
evidence on record, with respect to whether the other
defendants/subsequent bonafide purchasers had purchased
the land without notice. Merely saying that the same was not
necessary, would mean that the court itself has violated the
C mandate of Order XLI Rule 31 CPC. Res.No.1 (Ms. Anjum
Jehan) never appeared in the witness box and never filed a
written statement. The same was filed by her GPA holder. The
said GPA was in respect of various other properties, and the
GPA holder was not authorised to pursue suits in respect of
the suit property. Under no circumstance is the GPA holder
D
competent to enter the witness box and to give evidence as a
substitute for the original party. Thus, the appeals deserve to
be allowed, and the judgment and decree of the High Court, is
liable to be set aside.
E
4. Per contra Shri A.T.M. Rangaramanujam, Senior

Advocate, Shri R. Anand Padmanabhan, Shri Sohan Singh
Rana and Shri A.V. Rangam, learned counsel appearing on
behalf of the respondents, have opposed the appeals
contending that the High Court has appreciated the evidence
F on record and has reached the correct conclusion. The findings
of the fact recorded by the High Court are based on evidence,
and do not warrant any interference by this Court. The appellant/
plaintiff, has not furnished any explanation for the delay, as he
was duly informed by Res. No.1 of the fact that she had
G obtained the required sanctions/permissions. Had the
appellant/plantiff been in a position to perform his part of the
contract, he could not have waited for a period of more than 4
years to file the suit. During the pendency of the cases, a part
of the suit land stood acquired for widening the road. The
H appellant without having any title over the land, has claimed and

759
withdrawn a huge amount of compensation unauthorisedly/

fraudulently. Thus, the appeals are liable to be dismissed.
760
A
5. We have considered the rival submissions made by the

parties, and perused the record.
6. The trial court, after appreciating the evidence on record
came to the following conclusions:
I)
II)
III)
[2013] 2 S.C.R.
7. The High Court while deciding the first appeal filed

under Section 96 CPC, did not consider all the issues as is
required under Order XLI Rule 31 CPC. On the other hand, it
dealt with only one issue elaborately, without making any
reference to the pleadings taken by the parties. The High Court
B held:
(i) No steps were taken by the appellant/plaintiff in
establishing his readiness and willingness to perform his
part of the contract.
The evidence adduced on behalf of the defendants

does not conclusively establish their plea to the
effect that the plaintiff himself had cancelled the
agreement to sell (Ex.A-1), in view of his inability
to pay the balance of the sale consideration.
The plaintiff had the capacity to raise and pay the

balance of the sale consideration under Ex.A-1.
Thus, the plaintiff was ready and willing to perform
his part of the contract.
(ii) Only a nominal sum was paid by the appellant/plaintiff

in 1977 and till the date that the suit was filed, no effort
was made by the appellant/plaintiff to pay the balance
amount.
(iii) There has been inordinate delay on the part of the

appellant/plaintiff in filing the suit. Had he been ready and
willing, he ought to have approached the court at the
earliest.
There were inconsistent versions with regard to the

extent of the land alleged to have been sold to
defendant nos.3 and 7.
IV)
The plaintiff had paid the amount towards nonagricultural assessment tax and property tax for the
suit property.
V)
The plaintiff had not rescinded the suit contract, and

had not informed the first defendant that he was not
in a position to complete the sale transaction, and
that therefore, defendant no.1 was at liberty to sell
the suit land to any other person, as has been
contended by defendant no.1
VI)
Defendant nos.3 and 6 were subsequent

purchasers for consideration without notice.
Defendant no.6 is a bonafide purchaser for value,
without notice of the agreement to sell (Ex.A-1).
(iv) As per the evidence of defendant no. 7, the power of

attorney holder (DW.1), did not call the appellant/plaintiff
and ask him to get the sale deed executed, in pursuance
of agreement dated 15.10.1977. The appellant/plaintiff
expressed his inability to get the sale deed executed as
he had no ready cash.
(v) There was no requirement in law to obtain permission
for separate sub-division and thus, Res.No.1 was not
required to obtain any such sanction. Furthermore, the said
property had already been sub-divided, and bore different
numbers.
(vi) Res. No.1 had obtained the requisite permission from
the Urban Land Ceiling Authorities in December 1977,
and the appellant/plaintiff had handed over the draft sale
deed to Res. No.1.

761
(vii) It was because the appellant/plaintiff was not willing

and ready to perform his part of the contract, and was
resorting to dilatory tactics, that Res. No.1 had entered into
two agreements to sell with respondent nos.3 and 7.
(viii) In view of the above, there was no occasion to
examine the other issues, particularly those with respect
to whether the other respondents were bonafide
purchasers for consideration without notice, and the
appeals were hence disposed of, as has been referred to
hereinabove.
762
A
9. In the written statement, Res. No. 1 simply denied the

said averment, and further averred that:
"The allegation in para 7 of the plaint that the plaintiff was
always ready and willing to perform his part of the suit
agreement being incorrect is denied. The allegation that
the defendant committed breach of the agreement and
failed to perform her part of the agreement being incorrect
is denied. The Defendant submits on the contrary that the
plaintiff failed to perform his part of the agreement thereby
committed a breach of the agreement The Defendant,
submits that the Defendant performed her part of the
agreement and was ready to perform her part of the
agreement, It is submitted that finally when the plaintiff failed
to raise necessary money towards the sale price plaintiff
[2013] 2 S.C.R.
informed the Defendant that she/is at liberty to sell the

property to anyone."
10. A replication was filed by the appellant/plaintiff under
Order VIII Rule 9 CPC, wherein it has been submitted in
paragraph 6 thereof as under:
"The plaintiff is a big businessman having a business
turnover of more than 5 lakhs per year. He is always
capable of providing and raising the necessary finances
to complete the sale transaction"
8. The plaint contained a specific averment in paragraph

7 as under:
"The plaintiff is and had always been ready and willing to
perform his part of the suit agreement and it is the first
defendant, who evaded to perform her part of the suit
agreement and finally committed to refusal of the terms of
the suit agreement amounting to refusal on her part to so
perform her part of the suit agreement."
C
11. These are the only pleadings taken by the parties so
far as the issue of readiness and willingness to perform part
of the contract by the appellant/plaintiff is concerned. The
appellant/plaintiff examined himself as PW.1, and in his crossD examination he has denied any suggestion made to him to the
effect that he had ever informed the power of attorney holder
of Res. No.1, namely, Shri S.S. Noor Ali, that he would be
unable to raise the balance of the sale consideration. Nor he
had ever told defendant no. 7 that he wanted to sell the
agricultural land to raise money to purchase the suit property.
E
No question was put to him in the cross-examination, in
response to which he could establish that he was a man of
means, which he has thus stated in the replication, though he
has admitted that he has certain outstanding dues towards the
bank. He has denied the suggestion that he had neither a
F house, nor agricultural land, and that he had no capacity to pay
the sale consideration, and further, that he had falsely deposed
in respect of the same.
12. The allegation made in the written statement stating
that
the
appellant/plaintiff had told Res. No. 1 that she was free
G
to sell the land, was not established by leading any evidence.
Additionally, Res. No. 1 lives in the USA. It is nobody's case
that the appellant/plaintiff had any communication with her. It was
not mentioned in the averments raised in the written statement,
H that she had been informed anyone of the same through the

763
power of attorney holder. Further, with respect to the issue

regarding financial capacity to pay, the appellant/plaintiff
examined K. Narayana Reddy (PW.2) and Laxman Gore
(PW.3). They fully supported his case, deposing that he was a
man of means, and that he had sufficient properties and the
means to purchase the said suit property.
764
14. So far as the notice of the agreement between the

appellant and Res. No. 1 is concerned, the trial court after taking
note of the recital of the said agreement in the agreement to
sell and sale deed also, has held, that, so far as the land sold
to respondents other than respondent no.6, the parties had
been fully aware of the same. Only respondent no.6 had no such
[2013] 2 S.C.R.
A notice. Shri A. G. Chaudhari, learned senior counsel appearing

on behalf of the appellant, has submitted that the same being
a very small area, the appellant is not willing to disturb the
possession of defendant no.6.
Thus, the finding recorded by the High Court on this issue

is perverse being contrary to the evidence on record.
13. It is a settled legal proposition that the power of
attorney holder cannot depose in place of the principal.
Provisions of Order III, Rules 1 and 2 CPC empower the holder
of the power of attorney to "act" on behalf of the principal. The
word "acts" employed therein is confined only to "acts" done
by the power-of-attorney holder, in exercise of the power
granted to him by virtue of the instrument. The term "acts",
would not include deposing in place and instead of the
principal. In other words, if the power-of-attorney holder has
preferred any "acts" in pursuance of the power of attorney, he
may depose for the principal in respect of such acts, but he
cannot depose for the principal for acts done by the principal,
and not by him. Similarly, he cannot depose for the principal in
respect of a matter, as regards which, only the principal can
have personal knowledge and in respect of which, the principal
is entitled to be cross-examined. (See: Vidhyadhar v.
Manikrao & Anr., AIR 1999 SC 1441; Janki Vashdeo Bhojwani
v. Indusind Bank Ltd., (2005) 2 SCC 217; M/S Shankar
Finance and Investment v. State of A.P & Ors., AIR 2009 SC
422; and Man Kaur v. Hartar Singh Sangha, (2010) 10 SCC
512).
15. In the facts and circumstances of the case, as the

appellant has not yet acquired any title over the land, he has
no right to receive compensation to the tune of Rs.
29,47,112/-. However, he withdrew the said amount by giving
an undertaking to return the said amount to Res. No. 1 in case
any such order was passed by the court in this regard.
16. In view of the above, the appeals are allowed. The

judgment and decree passed by the High Court is set aside,
and the same passed by the trial court is restored. As a
consequence, the appellant is entitled to get the sale deed
D executed and registered, with respect to all the suit land
available now (minus the land acquired and the land purchased
by the respondent no.6).
17. The appellant is directed to refund the amount of
compensation received by him to Res. No. 1 within a period
E
of three months, alongwith 9% interest from the date of receipt
till the date of payment.
Civil Appeal Nos. 2888 and 4459 of 2005
In view of the judgment and order in Civil Appeal Nos.

2885-2887 of 2005, these appeals are dismissed.
R.P.
Appeals Disposed of.
766
[2013] 2 S.C.R. 765

A
SWAROOP SINGH
v.
STATE OF M.P.
PENAL CODE, 1860:
s.376(1) - Rape - Statement of prosecutrix that accused

committed forcible sexual intercourse against her wish at knife
point - Held: Except simply denying the offence alleged in the
statement u/s 313 Cr.P.C., accused did not let in any evidence
to contradict the version of the prosecutrix -Trial court on a
detailed consideration of the evidence concluded that the
case of prosecutrix was cogent and convincing and was also
supported by evidence of other witnesses and the recoveries
made from the place of occurrence - Judgments of Courts
below call for no interference.
State of Punjab Vs. Gurmit Singh 1996 (1) SCR 532 =

1996(2) SCC 384 - relied on
Case Law Reference:
F
para 14

No. 376 of 2010.
High Court of Madhya Pradesh at Jabalpur in Criminal Appeal
No. 301 of 1994.
765
Ranvir Singh Kundu, Jetendra Singh, S.K. Sabharwal for

the Appellant.
The following order of the Court was delivered by

ORDER

relied on
[2013] 2 S.C.R.
Vibha Datta Makhija for the Respondent.
APRIL 10, 2013
1996 (1) SCR 532
1. This appeal is directed against the judgment of High

Court of Madhya Pradesh at Jabalpur dated 16.7.2008 in
Criminal Appeal No.301/1994.
2. According to the prosecution on 28.9.19992 at 12.30

p.m., the prosecutrix P.W.2 was proceeding to the field for
cutting grass. On the way, the appellant who was roasting
Maize/Bhutta in the field of PyareLal, blocked P.W.2 and asked
D her to go alongwith him into the field of sugarcane. When P.W.2
refused, the appellant caught hold of her by hand and forcibly
took her to the sugarcane field, throw her down, gagged her
mouth with the saree of P.W.2 and forcibly had intercourse with
her by threatening her life at knife point. According to her by
E virtue of the said act of the appellant, white liquid started oozing
out from her private parts, that she went to the boundary wall
(Mound) where a well is situated and where Ram Singh Dada
(P.W.4) was cutting grass. P.W.2 informed Ram Singh Dada
as to what happened, who in turn passed on the information to
F her Kakaji Hari Prasad. Thereafter, her Kakaji Hari Prasad took
P.W. 2 to home, where she narrated the whole incident. She
stated to have informed her sister Chain Bai as well as her Kaki
and Shanta Bai. She thereafter reported the matter to the Vilkis
Ganj Police Station and after registering the report reached
G back home. She identified the report as Exhibit P2.
3. Subsequent to the registration of the case, the Police

inspected the spot, seized the broken bangles and prepared
a rough sketch. She was examined by the doctor who seized
her peticoat and X-ray was also taken. The appellant was
SWAROOP SINGH v. STATE OF M.P.
767
proceeded against in Criminal Case No.84/1992 for the

offence punishable under Sections 376 and 506 Part II, IPC.
The appellant having denied comission of the offence,
witnesses were examined and in his statement under Section
313 Cr.P.C., the appellant pleaded total ignorance and that he
was falsely implicated.
4. On the side of the prosecution P.W. 1 to 10 were
examined. P.W.1 Dr. Manju Saxena, who examined the
prosecutrix in her evidence stated that on internal examination
of P.W.2, hymen was found to be torn in irregular manner and
that two finger could easily be inserted in the vagina. She also
stated that there was no flow of fresh blood. Two slides of
vagina slabs prepared and sealed and were handed over to
the police for forwarding the same for chemical examination
alongwith the Peticoat of the prosecutrix on which spots were
present.
5. In the course of cross examination, P.W.2 deposed that
when the appellant threw her on the ground she did not sustain
any injury; that she was not assaulted by way of fist blow, though
the appellant threatened her not to raise any alarm by showing
a knife. She further deposed that when white fluid was oozing
out from her private parts, blood was also found and that she
washed the stains with water when she reached the well from
the place of occurrence and before she met Ram Singh. She
also deposed that she had swelling in her private parts and was
suffering from pain for 2-3 days. A suggestion put to her as to
why she did not object when the appellant pulled her hand to
go, she categorically denied the said suggestion.
6. The trial court after detailed analysis of the evidence
placed before it held that there was no reason to disbelieve the
version of the prosecutrix, that since the appellant had sexual
intercourse with the prosecutrix against her consent, the same
would fell within the offence of rape under Section 376 IPC and
such a gruesome offence was committed under the threat of
768
A
[2013] 2 S.C.R.
A knife point, the offence of criminal intimidation was also made

out falling under Section 506 Part II, IPC.
7. The trial Court after convicting the appellant for the
aforesaid offences imposed punishment for 7 years rigorous
imprisonment alongwith fine of Rs.2000/, in default, sentence
B
of 2 years rigorous imprisonment for the offence under Section
376(1) IPC and imprisonment of 2 years with fine of
Rs.2,000/-, in default six months rigorous imprisonment for the
offence under Section 506 Part II, IPC.
C
8. The trial court while reaching the above conclusion and

while convicting the appellant has held that the version of the
prosecutrix was fully supported by the other witnesses namely,
Ram Singh (P.W.4), to whom she immediately informed, her
Kakaji Hari Prasad (P.W.5), Bansi Lal (P.W.3) and Radhey
D Shyam (P.W.6). The trial court has found that those witnesses
fully confirmed the version of the prosecutrix. The evidence of
P.W.10 Dr. V.K. Chaudhary who examined the appellant on
17.9.1992 gave his opinion in Exhibit P6 that the appellant was
capable of performing sexual intercourse.
E
9. The sole contention of the appellant before the trial court
was that even as per the evidence of Dr. Manju Saxena (P.W.1),
who examined the prosecutrix, it was clear that the prosecutrix
was approximately 17 to 18 years of age, that since she was
having frequent sexual intercourse no definite opinion of rape
F could be given and therefore, it cannot be held that the
appellant had any forcible sexual intercourse against the wish
of the prosecutrix in order to be convicted for the offence under
Section 376 IPC read with Section 506 Part II, IPC.
10. The High Court having considered the judgment of the

trial court in extenso found that there was no ground made out
to interfere with the judgment and confirmed the conviction and
sentence imposed on the appellant.
11. Heard Mr. Ranbir Singh Kundu, learned counsel
769
appearing for the appellant and Ms. Vibha Dutta Makhija,

learned counsel appearing for the State. We also perused the
judgment of the trial court as well as that of the High Court. In
the course of submission, learned counsel for the appellant
submitted except the version of P.W.2 prosecutrix there was
nothing stated before the trial court to prove that the appellant
committed the offence rape on her, that even going by the
medical evidence as the prosecutrix was having frequent
intercourse though not married, it cannot be a case of rape
falling under Section 376 IPC. The learned counsel therefore,
submitted that the conviction and sentence imposed on the
appellant by the trial court as affirmed by the appellate court is
liable to be interfered with.
12. As against the above submission, Ms. Makhija, learned
counsel for the State contended that it is a case of offence of
rape falling under Section 376 IPC, the question whether it was
with the consent of the women alleged to have been raped has
to be accepted based on her simple statement in the court and
proceed on that basis. Learned counsel contended that when
based on the evidence of P.W.2 prosecutrix, it was
demonstrated before the court that the appellant had sexual
intercourse with her against her consent, it was for the appellant
to have proved beyond reasonable doubt that either there was
no sexual intercourse or was there a consent existed in order
to relieve the appellant of the offence alleged and found proved
against him.
13. Therefore, the only question that remains for
consideration in the case in hand is as to whether the sexual
intercourse committed by the appellant on the prosecutrix P.W.2
was with her consent in order to hold that the appellant cannot
be convicted under section 376 IPC. In that respect, when we
examined the evidence let in, what is noted by us hereinbefore
and as found by the trial court as well as by the High Court, the
version of the prosecutrix P.W. 2 was unassailable. She was
stated to be 17/18 years of age on the date of occurrence and
770
A
[2013] 2 S.C.R.
A she categorically stated that the appellant who was a known

person, performed the act of forcible sexual intercourse against
her wish at knife point. Except the mere denial of the offence
alleged, there was no evidence let in on behalf of the appellant
to counter the allegation levelled against him by the prosecutrix.
B In such circumstances, the trial court on a detailed
consideration of the evidence placed before it concluded that
the case of the prosecutrix was cogent and convincing and also
supported by the evidence of other witnesses in so far as the
commission of offence of forcible sexual intercourse at knife
C point.
14. In this context it will be worthwhile to refer to the
principles laid down by this Court as to the manner in which
the evidence of a rape victim should be evaluated to ascertain
the truth. The said decision is reported in State of Punjab Vs.
D Gurmit Singh 1996(2) SCC 384. Para 8 and 21 are relevant
which reads as under:-
"8..... The courts must, while evaluating evidence, remain

alive to the fact that in a case of rape, no self-respecting
woman would come forward in a court just to make a
humiliating statement against her honour such as is
involved in the commission of rape on her. In cases
involving sexual molestation, supposed considerations
which have no material effect on the veracity of the
prosecution case or even discrepancies in the statement
of the prosecutrix should not, unless the discrepancies are
such which are of fatal nature, be allowed to throw out an
otherwise reliable prosecution case. The inherent
bashfulness of the females and the tendency to conceal
outrage of sexual aggression are factors which the Courts
should not overlook. The testimony of the victim in such
cases is vital and unless there are compelling reasons
which necessitate looking for corroboration of her
statement, the courts should find no difficulty to act on the
testimony of a victim of sexual assault alone to convict an
771
accused where her testimony inspires confidence and is

found to be reliable. Seeking corroboration of her
statement before relying upon the same, as a rule, in such
cases amounts to adding insult to injury. Why should the
evidence of a girl of a woman who complains of rape or
sexual molestation, be viewed with doubt, disbelief or
suspicion? The Court while appreciating the evidence of
a prosecutrix may look for some assurance of her
statement to satisfy its judicial conscience, since she is a
witness who is interested in the outcome of the charge
levelled by her, but there is no requirement of law to insist
upon corroboration of her statement to base conviction of
an accused. The evidence of a victim of sexual assault
stands almost at par with the evidence of an injured witness
and to an extent is even more reliable. Just as a witness
who has sustained some injury in the occurrence, which
is not found to be self inflicted, is considered to be a good
witness in the sense that he is least likely to shield the real
culprit, the evidence of a victim of a sexual offence is
entitled to great weight, absence of corroboration
notwithstanding. Corroborative evidence is not an
imperative component of judicial credence in every case
of rape. Corroboration as a condition for judicial reliance
on the testimony of the prosecutrix is not a requirement of
law but a guidance of prudence under given
circumstances. It must not be over-looked that a woman
or a girl subjected to sexual assault is not an accomplice
to the crime but is a victim of another persons's lust and it
is improper and undesirable to test her evidence with a
certain amount of suspicion, treating her as if she were an
accomplice. Inferences have to be drawn from a given set
of facts and circumstances with realistic diversity and not
dead uniformity lest that type of rigidity in the shape of rule
of law is introduced through a new form of testimonial
tyranny making justice a casualty. Courts cannot cling to a
fossil formula and insist upon corroboration even if, taken
as a whole, the case spoken of by the victim of sex crime
772
A
[2013] 2 S.C.R.
strikes the judicial mind as probable...."

"21. Of late, crime against women in general and rape in
particular is on the increase. It is an irony that while we are
celebrating women's rights in all spheres, we show little or
no concern for her honour. It is a sad reflection on the
attitude of indifference of the society towards the violation
of human dignity of the victims of sex crimes. We must
remember that a rapist not only violates the victim's privacy
and personal integrity, but inevitably causes serious
psychological as well as physical harm in the process.
Rape is not merely a physical assault - it is often
destructive of the whole personality of the victim. A
murderer destroys the physical body of his victim, a rapist
degrades the very soul of the helpless female. The Courts,
therefore, shoulder a great responsibility while trying an
accused on charges of rape. They must deal with such
cases with utmost sensitivity. The Courts should examine
the broader probabilities of a case and not get swayed by
minor contradictions or insignificant discrepancies in the
statement of the prosecutrix, which are not of a fatal nature,
to throw out an otherwise reliable prosecution case. If
evidence of the prosecutrix inspires confidence, it must be
relied upon without seeking corroboration of her statement
in material particulars. If for some reason the Court finds
it difficult to place implicit reliance on her testimony, it may
look for evidence which may lend assurance to her
testimony, short of corroboration required in the case of
an accomplice. The testimony of the prosecutrix must be
appreciated in the background of the entire case and the
trial court must be alive to its responsibility and be
sensitive while dealing with cases involving sexual
molestations."
15. Having heard learned counsel for the parties and
having perused the judgment of the trial court as well as of the
High Court, we are convinced that the judgment of the trial court
[2013] 2 S.C.R. 774
773
does not call for interference. From what has been let in by way
of evidence by the court below, the prosecutrix P.W.2 has
spoken that she knew the appellant, that she was forcibly taken
to the sugarcane bush at knife point and was subjected to
sexual intercourse against her consent. She revealed the
gruesome act committed by the appellant immediately after the
occurrence to Ram Singh PW 5. When she was examined by
the doctor, nothing could be traced about the presence of sperm
or blood since admittedly before going to the Police Station,
she washed herself in the well which was nearby the place of
occurrence to which place she immediately went where she
also reported the incident to Mr.Ram Singh Dada who was
examined as P.W.5.
18. A careful reading of the judgment of the trial court

discloses that the reasons adduced by it were cogent and
convincing and there was no reason to disbelieve the same.
The conclusion of the High Court is also equally well reasoned
and we do not find any fault in the same in order to interfere
with the same. We find no good ground to interfere with the well
considered conclusion of the trial court as well as that of the
High court. In the light of our above conclusion, we do not find
any merit in this appeal and the same is dismissed.
R.P.
Appeal dismissed.
APRIL 11, 2013

PENAL CODE, 1860:
16. The doctor who examined the prosecutrix stated clearly

that the hymen of the prosecutrix was torn and ruptured.
17. Except simply denying the offence alleged in the
statement under section 313 Cr.P.C., the appellant did not let
in any evidence to contradict the version of the prosecutrix. No
motive was either alleged or proved as against the prosecutrix
or any of the witnesses to disbelieve the version of the
prosecution witnesses or to hold that the Appellant was falsely
implicated. Broken bangles were also recovered from the place
of occurrence at the instance of the prosecutrix. No previous
grudge of the prosecutrix as against him in order to falsely
implicating the appellant was also suggested.
LILLU @ RAJESH & ANR.

v.
STATE OF HARYANA
ss. 376, 506, 366 and 363 - Kidnapping and rape of a

girl of 13 years - Conviction of four accused by courts below
- Appeal by two convicts - One died pending appeal - Held:
On the date of incident, victim was of 13 years and 9 months
and was a student of 6th standard - To refute the same, no
D
evidence has been led by accused-appellant - The said
finding stood affirmed by High Court and in view thereof, it
remains totally immaterial whether the prosecutrix was a
consenting party or not - The case does not present special
features warranting any interference.
E
CRIMES AGAINST WOMEN:
Rape victim - Entitlement to legal recourse - Held: In view
of International Covenant on Economic, Social, and Cultural
F Rights 1966; United Nations Declaration of Basic Principles
of Justice for Victims of Crime and Abuse of Power 1985, rape
survivors are entitled to legal recourse that does not
retraumatize them or violate their physical or mental integrity
and dignity - Medical procedures should not be carried out
in a manner that constitutes cruel, inhuman, or degrading
G
treatment and health should be of paramount consideration
while dealing with gender-based violence - State is under an
obligation to make such services available to survivors of
sexual violence - Proper measures should be taken to ensure
H
774
LILLU @ RAJESH & ANR. v. STATE OF HARYANA 775

their safety and there should be no arbitrary or unlawful
interference with victim's privacy - There is a demand of
sound standard of conducting and interpreting forensic
examination of rape survivors - International Covenant on
Economic, Social, and Cultural Rights 1966; United Nations
Declaration of Basic Principles of Justice for Victims of Crime
and Abuse of Power 1985.
Narayanamma (Kum) v. State of Karnataka & Ors., 1994
(2) Suppl. SCR 799 = (1994) 5 SCC 728; State of U.P. v.
Pappu @ Yunus & Anr., 2004 (6) Suppl. SCR 585 = AIR
2005 SC 1248; State of Uttar Pradesh v. Munshi, 2008 (12)
SCR 897 = AIR 2009 SC 370; Narender Kumar v. State (NCT
of Delhi), 2012 (6) SCR 148 = AIR 2012 SC 2281 and State
of Punjab v. Ramdev Singh, 2003 (6) Suppl. SCR 995 = AIR
2004 SC 1290 - referred to.
776
A
Case Law Reference:

1994 (2) Suppl. SCR 799
referred to
para 8
2004 (6) Suppl. SCR 585
referred to
para 9
2008 (12) SCR 897
referred to
para 9
2012 (6) SCR 148
referred to
para 10
2003 (6) Suppl. SCR 995
referred to
para 11

No. 1226 of 2011.
Court of Punjab & Haryana at Chandigarh in Criminal Appeal
No. 243-DB of 2002.
J.P. Singh, R.C. Kaushik for the Appellants.

Kamal Mohan Gupta for the Respondent.
The following Order of the Court was delivered
[2013] 2 S.C.R.
ORDER
1. This criminal appeal has been preferred against the
impugned judgment and order dated 20.9.2010 passed by the
High Court of Punjab & Haryana at Chandigarh in Criminal
Appeal No. 243-DB of 2002, by way of which the High Court
has affirmed the judgment and order dated 4.3.2002 passed
by the Additional Sessions Judge, Jind in Sessions Case No.
37 of 2001, by way of which the appellant no. 1 has been
convicted under Section 376 of the Indian Penal Code, 1860
(hereinafter referred to as `IPC) and awarded the sentence of
seven years rigorous imprisonment with a fine of Rs. 5,000/and in default of making payment, to further undergo
imprisonment for two years. Further he has been convicted
under Section 506 IPC and awarded the sentence of two years
rigorous imprisonment. Both the sentences have been directed
to run concurrently. The other co-accused, namely, Manoj,
Satish @ Sitta and Kuldeep have been convicted separately
under sections 376, 506, 366 and 363 IPC. Kuldeep Singh
alone has been found guilty under Section 376 (2) (g) IPC, and
has been awarded sentence of life imprisonment. Out of these
four convicts, Kuldeep Singh and Manoj did not prefer any
appeal against the High Courts judgment, while appellant nos.1
and 2 preferred the present appeal. Appellant no.2 had died
during the pendency of this appeal in jail, therefore, we are
concerned only with the case of appellant no.1 i. e. Lillu @
Rajesh.
2. Mr. J.P. Singh, learned counsel for the appellant,

submitted that the prosecution has failed to prove the date of
birth of the prosecutrix and that she was about 17-18 years of
age on the date of incident. Thus, it was a clear cut case of
G
consent. The statement of Raj Bala, prosecutrix has not been
corroborated by any of the witnesses and has not got
corroborated by the medical evidence. Dr. Malti Gupta (PW1), who had examined Raj Bala, prosecutrix medically had
deposed that there was no external mark of injury on any part
H
LILLU @ RAJESH & ANR. v. STATE OF HARYANA
777
of her body. The possibility of prosecutrix being habitual to

sexual intercourse could not be ruled out. There was no
bleeding. Thus, in such a fact-situation, the statement of the
prosecutrix that she was unmarried and had never indulged in
sexual activity with any person, or was below 16 years, could
not be relied upon.
3. On the other hand, the State of Haryana, as usual,
remained unrepresented as the government counsel duly
appointed by the State considered it their privilege not to
appear in court and become the burden on public exchequer.
So, the court has to examine the case more consciously going
through the record and examine the correctness of the findings
recorded by the courts below.
4. The trial court has examined the issue on age and after
examining the school certificate (Ext. P-N), which stood duly
proved by Lakhi Ram (PW-11), Science teacher, Government
High Court, Badhana and Gajraj Singh, teacher, Govt. Primary
School, Badhana, came to the conclusion that her date of birth
as per the school register was 4.6.1987. So on the date of
incident i.e. 7.3.2001, she was 13 years 9 month and 2 days
old. She was a student of 6th standard. To refute the same, no
evidence worth the name has been led by the accusedappellant. The said finding stood affirmed by the High Court and
in view thereof, it remains totally immaterial whether the
prosecutrix was a consenting party or not.
778
A
[2013] 2 S.C.R.
On local examination labia majora and labia minora were

moderately developed.
There was no bleeding P/V. Whitish discharge was
present. Hymen was completely torn.
Vagina admitted two fingers cervix was normal, uterus was

of null parous by lateral FF were normal.
.Two swabs were taken from cervix vagina. Public hair
were taken and sent for examination. Salwar worn by Raj
Bala was taken and sealed following were handed over
to the police.
.It is correct that I have given my opinion that hymen was
completely torn.
.It is also correct that the marginas were completely

heeled. I cannot give the exact time.
.I cannot say whether it was torn one year back 2 years
back or 10 days back.
.I cannot say whether there was any sign of semen on

the swabs taken by me.
She further deposed:
".... Since there was no matting of hair so I did not opine

whether there was any semen on the public hair.
5. So far as the medical evidence is concerned, Dr. Malti

Gupta (PW-1), Medical Officer, Civil Hospital, Jind, has
deposed that Raj Bala, prosecutrix was habitual in sexual
activities and such a statement was made in view of the medical
examination. Relevant part thereof reads as under:
"Bilateral breast were moderately developed, There was

no external mark of injury seen any where on the body.
Axillary heir was not developed. Public hair were partially
developed.
.I do not remember whether I enquired from Raj Bala

whether she came to me for medico legal examination
after washing clothes and taking bath or not. However, the
salwar worn by her was taken into custody. I cannot say
from how many days Raj Bala was having sexual activities.
The possibility of Raj Bala of habitual sexual intercourse
cannot be ruled out.
6. In fact, much has been argued by Mr. J.P. Singh on two
779
fingers test. Admitting very fairly that in case she was a minor,
the question as to whether she had been habitual to sexual
activities or not, is immaterial to determine the issue of consent.
7. So far as the two finger test is concerned, it requires a
serious consideration by the court as there is a demand for
sound standard of conducting and interpreting forensic
examination of rape survivors.
8. In Narayanamma (Kum) v. State of Karnataka & Ors.,
(1994) 5 SCC 728, this Court held that fact of admission of two
fingers and the hymen rupture does not give a clear indication
that prosecutrix is habitual to sexual intercourse. The doctor has
to opine as to whether the hymen stood ruptured much earlier
or carried an old tear. The factum of admission of two fingers
could not be held adverse to the prosecutrix, as it would also
depend upon the size of the fingers inserted. The doctor must
give his clear opinion as to whether it was painful and bleeding
on touch, for the reason that such conditions obviously relate
to the hymen.
9. In State of U.P. v. Pappu @ Yunus & Anr., AIR 2005
SC 1248, the Court held that a prosecutrix complaining of
having been a victim of an offence of rape is not an accomplice
after the crime. There is no rule of law that her testimony cannot
be acted upon without corroboration in material particulars, for
the reason, that she stands on a much higher pedestal than an
injured witness.
This Court while dealing with the issue in State of Uttar
Pradesh v. Munshi, AIR 2009 SC 370, has expressed its
anguish and held that even if the victim of rape was previously
accustomed to sexual intercourse, it cannot be the determinative
question. On the contrary, the question still remains as to
whether the accused committed rape on the victim on the
occasion complained of. Even if the victim had lost her virginity
earlier, it can certainly not give a licence to any person to rape
780
A
[2013] 2 S.C.R.
A her. It is the accused who was on trial and not the victim. So
as to whether the victim is of a promiscuous character is totally
an irrelevant issue altogether in a case of rape. Even a woman
of easy virtue has a right to refuse to submit herself to sexual
intercourse to anyone and everyone, because she is not a
B vulnerable object or prey for being sexually assaulted by anyone
and everyone. A prosecutrix stands on a higher pedestal than
an injured witness for the reason that an injured witness gets
the injury on the physical form, while the prosecutrix suffers
psychologically and emotionally.
C
10. In Narender Kumar v. State (NCT of Delhi), AIR 2012

SC 2281, this Court dealt with a case where the allegation was
that the victim of rape herself was an unchaste woman, and a
woman of easy virtue. The court held that so far as the
prosecutrix is concerned, mere statement of prosecutrix herself
D is enough to record a conviction, when her evidence is read in
its totality and found to be worth reliance. The incident in itself
causes a great distress and humiliation to the victim though,
undoubtedly a false allegation of rape can cause equal distress,
humiliation and damage to the accused as well. The Court
E further held as under:
Even in cases where there is some material to show

that the victim was habituated to sexual intercourse, no
inference of the victim being a woman of easy virtues
or a women of loose moral character can be drawn.
Such a woman has a right to protect her dignity and
cannot be subjected to rape only for that reason. She has
a right to refuse to submit herself to sexual intercourse
to anyone and everyone because she is not a vulnerable
object or prey for being sexually assaulted by anyone and
everyone. Merely because a woman is of easy virtue, her
evidence cannot be discarded on that ground alone rather
it is to be cautiously appreciated. (Vide: State of
Maharashtra & Anr. v. Madhukar Narayan Mardikar, AIR
1991 SC 207; State of Punjab v. Gurmit Singh & Ors.,
781
AIR 1996 SC 1393; and State of U.P. v. Pappu @ Yunus

& Anr., AIR 2005 SC 1248).
In view of the provisions of Sections 53 and 54 of the
Evidence Act, 1872, unless the character of the prosecutrix
itself is in issue, her character is not a relevant factor to
be taken into consideration at all.
11. In State of Punjab v. Ramdev Singh, AIR 2004 SC
1290, this court dealt with the issue and held that rape is
violative of victims fundamental right under Article 21 of the
Constitution. So, the courts should deal with such cases sternly
and severely. Sexual violence, apart from being a dehumanizing
act, is an unlawful intrusion on the right of privacy and sanctity
of a woman. It is a serious blow to her supreme honour and
offends her self-esteem and dignity as well. It degrades and
humiliates the victim and where the victim is a helpless innocent
child or a minor, it leaves behind a traumatic experience. A
rapist not only causes physical injuries, but leaves behind a
scar on the most cherished position of a woman, i.e. her dignity,
honour, reputation and chastity. Rape is not only an offence
against the person of a woman, rather a crime against the entire
society. It is a crime against basic human rights and also
violates the most cherished fundamental right guaranteed under
Article 21 of the Constitution.
12. In view of International Covenant on Economic, Social,
and Cultural Rights 1966; United Nations Declaration of Basic
Principles of Justice for Victims of Crime and Abuse of Power
1985, rape survivors are entitled to legal recourse that does
not retraumatize them or violate their physical or mental integrity
and dignity. They are also entitled to medical procedures
conducted in a manner that respects their right to consent.
Medical procedures should not be carried out in a manner that
constitutes cruel, inhuman, or degrading treatment and health
should be of paramount consideration while dealing with
gender-based violence. The State is under an obligation to
make such services available to survivors of sexual violence.
782
A
[2013] 2 S.C.R.
A Proper measures should be taken to ensure their safety and

there should be no arbitrary or unlawful interference with his
privacy.
13. Thus, in view of the above, undoubtedly, the two finger
test and its interpretation violates the right of rape survivors to
B
privacy, physical and mental integrity and dignity. Thus, this test,
even if the report is affirmative, cannot ipso facto, be given rise
to presumption of consent.
14. In view of the above, the facts and circumstances of
C the case do not present special features warranting any
interference by this Court. The appeal lacks merit and is
accordingly dismissed.
R.P.
Appeal dismissed.
784
[2013] 2 S.C.R. 783

RAJENDRA SINGH
v.
STATE OF UTTARANCHAL
APRIL 11, 2013
[AFTAB ALAM AND RANJANA PRAKASH DESAI, JJ.]

PENAL CODE, 1860:
s. 302 - Murder - Acquittal by trial court - Conviction by
High Court - Held: The medical evidence is quite consistent
with the prosecution case that the deceased was killed by
inflicting injuries by a pair of scissors - Both the eye-witnesses
fully supported the prosecution case in regard to the assault
by appellant on deceased with a pair of scissors Discrepancies between statements of two eye-witnesses
highlighted by trial court cannot be a ground for rejecting their
deposition entirely - High Court has rightly rejected the view
taken by trial court as wholly untenable and has rightly
accepted the evidence of prosecution witnesses in order to
bring home the guilt of the appellant - Maxim, falsus in uno,
falsus in omnibus - Evidence.
An FIR for the offence punishable u/s 302 IPC was
lodged against the accused-appellant, who was a tailor
by profession. The prosecution case was that one 'KS',
the brother of PW-1, had given some cloth to the appellant
for stitching; that prior to the date of occurrence there
was a quarrel between the two over the delay in getting
the cloth stitched; that on the date of occurrence, when
'KS', while returning home, reached in front of the shop
of the accused, the latter came with a pair of scissors in
his hand and attacked 'KS' who ran for his life, but the
accused chased and caught hold of him and gave him
several blows by the scissors. The incident was
783
[2013] 2 S.C.R.
A witnessed by many persons including PW-3 (the wife of

victim) and PW-2, who took the victim to hospital where
he was declared brought dead. The trial court acquitted
the accused, but the High Court convicted him u/s 302
IPC and sentenced him to imprisonment for life.
B
HELD: 1.1 The medical evidence is quite consistent
with the prosecution case that the deceased was killed
by inflicting injuries by a pair of scissors. It is undeniable
C that both PW.2 and PW.3 fully supported the prosecution
case in regard to the assault by the appellant on the
deceased with a pair of scissors. PW.3, the wife of the
deceased also deposed before the court regarding the
genesis of the occurrence i.e., the quarrel between the
D deceased and the appellant that had taken place on the
previous evening. Further, the deposition of PW.3 in
regard to the assault by the appellant on the deceased
is quite graphic. [para 10 and 15] [789-G-H; 790-E-F]
1.2 There is no reason for the trial court to come to
the conclusion that PW.2 and PW.3 were speaking falsely
and were trying to hide the relationship between PW.2 and
the deceased or that he lived in the house of the
deceased as a tenant. In the first place, no such inference
is possible on the basis of the depositions of PW.2 and
F PW.3 and, secondly, and more importantly, even if it is
assumed that the depositions of PW.2 and PW.3 in this
regard were incorrect, that cannot be the ground to reject
their deposition entirely even though it is perfectly sound
in respect of the main prosecution case. In our system
G of law, the maxim falsus in uno, falsus in omnibus is not
followed. The testimonies of PW.2 and PW.3 are wholly
reliable and there is no reason not to accept the same.
[para 27, 28 and 32] [794-E-H; 795-F-G]
E
1.3 Apart from the evidences of PW.2 and PW.3, there
RAJENDRA SINGH v. STATE OF UTTARANCHAL
785
are other circumstances that lend credence to the

prosecution case. The Investigating Officer (PW.11)
stated that in the course of interrogation the appellant
volunteered to produce the scissors used for killing the
deceased from his shop. He took the Investigating
Officer to his shop, opened it with the keys kept in his
pocket and recovered the blood stained scissors from
under the shop counter and produced it before the
Investigating Officer. The recovery is supported by PW.6
who signed the recovery memo. [para 33-35] [795-G-H;
796-A-C]
1.4 On a careful consideration of the materials on
record, this Court is of the view that the High Court has
rightly rejected the view taken by the trial court as wholly
untenable and has rightly accepted the evidences of PW.2
and PW.3 in order to bring home the guilt of the appellant.
[para 36] [796-D-E]
786
A
Sanjeev Bhatnagar, Sounak S. Das, Rupi Sagar (for

Kusum Chaudhary) for the Appellant.
Dr. Abhishek Atrey, Amit Kumar Singh, Brijesh Panchal,

Aishverya Shandilya for the Respondent.
AFTAB ALAM, J. 1. This appeal is directed against the
judgment and order dated April 30, 2008 passed by the
Uttarakhand High Court in Government Appeal No.1174 of
2001 (Old No.303 of 1991). By the impugned judgment, the
High Court allowed the Government Appeal, set aside the
judgment of acquittal rendered by the trial court, and finding the
[2013] 2 S.C.R.
A appellant guilty of the offence of murder convicted him under

section 302 of the Penal Code and gave him the sentence of
rigorous imprisonment for life.

No. 1702 of 2008.
High Court of Uttarakhand at Nainital in Government Appeal No.
1174 of 2001 (Old No. 303 of 1991).
2. The case of the prosecution is based on a written report

dated July 26, 1988 submitted at Police Station Dehradun by
one Vijay Singh s/o Puran Singh Rana (hereinafter referred to
as "the informant"). In the written report it was stated that the
informant's elder brother, namely, Kishan Singh Rana (the
deceased) was a peon in the Bank of India, Rajpur Road
Branch, Dehradun. He had given a pair of pants and some
cloth for stitching to Rajendra Singh tailor (the appellant), whose
shop is on the road just near their house. The appellant did not
return the stitched clothes even after several days and on the
evening prior to the date of occurrence, there was a quarrel
between the informant's brother and the appellant on that issue.
On July 26, 1988 (the date of occurrence) the informant's
brother had gone to the bank as usual on his motor cycle. He
returned from the bank at about 1.00 p.m. and as he reached
in front of the appellant's shop, he got down from the motor cycle
as the road was broken at that point. At that instant, the
appellant came out of his shop carrying a pair of scissors in
his hands; hurling abuses, he came down to the road and
attacked the informant's brother with the scissors with the intent
to kill him. In order to save his life, Kishan Singh Rana ran down
the road but the appellant chased him and caught him after
some distance in front of Chintamani's house. At that spot he
gave the informant's brother many blows by the scissors, one
after the other. Kishan Singh Rana fell down bleeding on the
road. It was further stated in the written report that besides the
informant, Makhan Singh (PW.2), Laxman (Motor) Auto
Mechanic (not examined) and his sister-in-law, Deepa (the wife
of the deceased - PW.3) and many other persons and women
of the area witnessed the occurrence. After assaulting the
deceased, the appellant fled away from there. It was further
stated in the written report that Makhan Singh took the
informant's brother to Dun Hospital, where he was declared

[AFTAB ALAM, J.]
787
brought dead. The written report concluded with the request to

take legal action against the appellant.
3. The written report submitted by Vijay Singh was
incorporated in the first information report (report No.230)
giving rise to criminal case No.483/88/-under section 302 IPC,
P.S. Dehradun.
788
A
6. The trial court found that there were a number of

discrepancies in the depositions of the eye-witnesses and held
that the prosecution was not able to establish the charge against
the appellant. It, accordingly, acquitted the appellant by the
judgment and order dated November 16, 1990.
7. The State Government filed an appeal against the
judgment of the trial court and the High Court took the view that
the reasons given by the trial court for not accepting the
[2013] 2 S.C.R.
A statements of PW.2 and PW.3 were specious and quite

untenable. The High Court found that both PW.2 and PW.3 are
wholly reliable witnesses and there was no reason not to accept
their evidences. It, accordingly, set aside the judgment passed
by the trial court and convicted and sentenced the appellant,
B as noted above.
8. The appellant is now in appeal before this Court.
4. The police after investigation submitted charge-sheet

and the appellant was put on trial on the charge under section
302 of the Penal Code.
5. In support of the charge, the prosecution examined 11
witnesses. PW.1, PW.2 and PW.3 are the eye witnesses of the
occurrence, of whom PW.1 is also the first informant. PW.4 is
one of the witnesses of the recovery of blood stained and plain
earth and a chappal from the place of occurrence. He also
identified his signature on the site plan (Ex.Ka-3) of the place
of occurrence. PW.5 is another witness of the recovery of blood
stained and plain earth, two chappals and one sandle from the
place of occurrence. He identified his signature on the seizure
memo (Ex.La-3). PW.6 and PW.7 are witnesses of the
recovery of the scissors from the appellant's shop. PW.8 is the
doctor who had conducted post-mortem on the body of the
deceased. PW.9 is a formal witness, the scribe of the chik FIR.
PW.10 is a Sub-Inspector of Police who had examined the
place of occurrence and had seized the articles from there.
PW.11 is the Investigating Officer of the case.
9. Before proceeding to examine the ocular evidence

adduced by the prosecution in support of its case, we may first
C see the medical evidence. As noted above, PW.8 conducted
the post mortem on the body of Kishan Singh Rana on July 27,
1987. He found as many as 16 injuries on the body of the
deceased which are as under:D
"1. Stab wound 2.5 cm x 1 cm x cavity deep on left side

of chest, 9 cm below left nipple midline direction backward
and medially.
2. Stab wound 1.5 cm x .5 cm x muscle deep on left side
of abdomen, 8 cm below injury No.1 and 11 cm away from
the umbilicus.
3. Stab wound 4 cm x 1.5 cm x cavity deep on left side of
abdomen direction medially backward and downward.
4. Contusion 6 cm x 4 cm on back of left elbow and arm.

5. Contusion 22 cm x 3 cm on right arm extending from
right shoulder up to elbow (front aspect).
6. Lacerated wound 2 cm x 1 cm on right side of forehead

x scalp deep, 6 cm above outer angle of right eye.
7. Stab wound 3 cm x 1 cm x cavity deep on right side of
chest lower part on ant axillary line 12 cm below right nipple
going upward medially and backward, 12 cm below right
nipple.

[AFTAB ALAM, J.]
789
8. Stab wound 2.5 cm x 1 cm x cavity deep on right side

of chest in post axillary line 6 cm behind injury No.7.
790
11. Stab wound 1.5 cm x .5 cm x cavity deep on right side

of back, 5 cm away from injury No.9 direction medially and
forward.
14. Stab wound 2.5 cm x 1 cm on right side of back of

chest 8 cm above injury No.13 and 15 cm away from
midline over the upper part of scapula. Direction
backward, medially and upward.
15. Stab wound 1.5 cm x .5 cm x cavity deep 5 cm away
from vert. column and 8 cm away from injury No.14.
12. The informant Vijay Singh who is the younger brother

of the deceased was examined as PW.1. In his examinationin-chief he fully supported the prosecution case but in course
of cross-examination in paragraph 12 of his deposition he
B stated as under:-
".. On the day of occurrence I had gone to school. I

had come back from school at 2.30 P.M. when I came back
then I was informed that my brother was killed. People
were weeping in the house. Then I had gone to hospital.
Scissor blow was not given in my presence."
13. It is for the reason of this statement that the trial court
discarded the evidence of PW.1.
16. Stab wound 3 cm x 1.5 cm x chest cavity deep on left

side of lower chest back going downward forward and
medially 4 cms away from midline, at L2 level."
10. Here, it may be noted that apart from injuries 4 and 5
which are contusions that may have been caused due to fall,
the rest 14 are stab injuries. The medical evidence is, thus,
quite consistent with the prosecution case that the deceased
was killed by inflicting injuries by a pair of scissors.
11. Let us now come to the ocular evidence.
12. Stab wound 2.5 cm x 1 cm on right side of back x cavity

deep, 6 cm above injury No.11 direction medially and
forward.
13. Stab wound 3 cm x 1.5 cm on right side of chest x
cavity deep over right back, 10 cm away from injury No.12
over the inferior angle of scapula direction forward, medially
and downwards, 10 cm above injury No.12.
[2013] 2 S.C.R.
9. Stab wound 3 cm x 1.5 cm on back of right side x cavity

deep going downwards backwards 7 cm below injury No.8.
10. Stab wound 2 cm x 1 cm on right buttock x muscle deep
15 cm below injury No.9 and 5 cm away from vert. column.
14. It is difficult to fault the trial court for rejecting the

evidence of PW.1 but let us now see the evidences of PW.2
and PW.3.
15. It is undeniable that both PW.2 and PW.3 fully

supported
the prosecution case in regard to the assault by the
E
appellant on the deceased with a pair of scissors. PW.3, the
wife of the deceased also deposed before the court regarding
the genesis of the occurrence i.e., the quarrel between the
deceased and the appellant that had taken place on the
F evening before the date of occurrence over the appellant's
failure to return the clothes given by the deceased for stitching
even after a number of days. Further, the deposition of PW.3
in regard to the assault by the appellant on the deceased is
quite graphic.
G
16. The trial court, however, highlighted certain

discrepancies between the statements of PW.2 and PW.3 and
for that reason found them to be unreliable. Those very
discrepancies were emphasized by the counsel for the
appellant to urge before this Court that the judgment of the trial
H court was quite sound and the High Court was in error in

[AFTAB ALAM, J.]
791
reversing that judgment and holding the appellant guilty of the

charge.
17. In order to appreciate the view taken by the trial court
and the submissions made on behalf of the appellant in its
support we may advert to the depositions of PW.2 and PW.3.
18. PW.2 Makhan Singh stated before the court that at the
time of the occurrence he was not a tenant of the deceased.
He further said that he had not said to Darogaji that he was a
tenant in the house of Kishan Singh and he did not know how
he (Darogaji) had so written in his statement. He further stated
that in those days he was not working in any factory and he had
not said that he was working in a factory. He had given (the
No.) 119/3 as his address. That house belonged to the
deceased. He was a resident of Tehri Garhwal and the
deceased too was a resident of Tehri Garhwal. They thus,
belonged to the same place. They also belonged to the same
caste. He knew Kishan Singh and Rajendra Singh from before.
He also said that he had no relationship with Kishan Singh.
792
A
[2013] 2 S.C.R.
A police. The police had come to her house at 5.00 to 6.00 P.M.
She did not remember whether or not Makhan Singh was with
them at that time.
21. The Investigating Officer was examined as PW.11. No
question was asked to him with reference to any statement of
B
Makhan Singh recorded under section 161 of the Code of
Criminal Procedure. He, too, was recalled for further evidence
and on recall he said that Makhan Singh addressed DeepaPW.3 as "Bhabhi".
C
22. In the statement of the appellant recorded under

section 313 of the Code of Criminal procedure, the court put
to him the following question:"It has come in the statement of Shri Naresh Pal
Yadav, SI PW.11 that Makhan Singh had called Deepa as
"Bhabhi". What do you have to say in this regard?
Ans.: She is real Bhabhi (sister-in-law). Witness Makhan
Singh lives with his Bhabhi."
19. PW.2 was recalled for further evidence. On recall he

reiterated that he had no relationship with the deceased Kishan
Singh. He was then shown an application that was marked as
Exhibit Ka-10 and he admitted that it was written in his hand
and it was given at the Drona Hotel. In that application it was
stated that his "Chachera Bhai" (paternal cousin), Kishan Singh
had met with a tragic accident and for that reason he was
unable to report for duty from July 26 to July 30, 1988. He further
stated that he had given the number of the house of Kishan
Singh because the place where he stayed had no number.
20. PW.3, the wife of the deceased denied before the court
that Makhan Singh lived in their house as a tenant. She further
said that Makhan Singh lived in Indra Colony and she did not
know Makhan Singh before the occurrence. She further said
that she had seen him first when the occurrence took place and
she came to know his name when it was said to her by the
23. The depositions of PW.2 and PW.3 are discussed by

the trial court in paragraph 13 of its judgment where it made
the following observations:
"Now, there remains the testimony of Makhan Singh Rana
(PW.2) and Smt. Deepa PW.3. Makhan Singh Rana
(PW.2) tried to conceal the relationship between him and
the deceased. Makhan Singh PW.2 stated that he had no
relationship with Kishan Singh, deceased. He further
stated that he was not the tenant of Kishan Singh. He further
stated that he had not told the Investigating Officer that he
was the tenant of Kishan Singh in that house, but the
Investigation Officer stated in his statement that Makhan
Singh told that he was the tenant and he gave the address
of his house 119/3 Nai Basti. Naresh Pal Yadav, SHO
PW.11 stated that Makhan Singh told Deepa as his
Bhabhi. Makhan PW.2 stated in his re-examination that

[AFTAB ALAM, J.]
793
he had written in the application Ex. KA-10 Kishan Singh

as cousin brother. He stated that this fact was written in
the application wrongly, but he has not stated the reasons
why this fact was written in the application wrongly.
Moreover, Ghanshyam Das DW.2 stated that the
application for Ration-Card of Makhan Singh was on the
address of 119/3 Nai Basti, Chukhuwala. Smt. Deepa
PW3 also stated in his (sic. her) cross-examination that
Makhan Singh was not the cousin of her husband. She
stated in her cross-examination that she did not know
Makhan Singh before the incident. When this accident took
place she knew the name of Makhan Singh. The police
personnel told the name of Makhan Singh, then she knew
the name of Makhan Singh. Thus both the witnesses
Makhan Singh PW2 and Smt. Deepa PW 3 are
intentionally concealing their relationship. It is highly
strange that Smt. Deepa does not know the name of her
husband's cousin."
24. The above quoted passage from the trial court
judgment suffers from some errors of fact. We have perused
the evidence of PW.11 more than once but we failed to notice
any statement in his deposition that Makhan Singh had given
his address as house No.119/3, Nai Basti and had told him that
he was a tenant of the deceased. As a matter of fact, it was
PW.2, Makhan Singh himself who truthfully accepted that in his
statement before the Investigating Officer he had given his
address as No. 119/3 which was the house of Kishan Singh,
the deceased. In his statement on recall he had also explained
that he had given the address of the house of the deceased
because the place where he lived had no clearly ascertainable
address. Moreover, both he and the deceased came from the
same place and belonged to the same caste and he knew the
deceased from before. He repeatedly denied that he lived in
the house of the deceased as a tenant and there is no reason
not to accept his statement.
794
A
[2013] 2 S.C.R.
25. Further, calling Deepa as "Bhabhi" does not at all

mean that Makhan Singh was a blood relation of Kishan Singh
Rana. "Bhabhi" is a common form of address for the wife of
someone who is known from before. Moreover, Makhan Singh
had clearly said that both he and Kishan Singh Rana belonged
B to Tehri Garhwal and they were also of the same caste and
further that he knew Kishan Singh Rana from before. In those
circumstances, to call the wife of the deceased as "Bhabhi"
was quite natural for him but at the same time it did not, by any
means, show that he had any blood relationship with the
C deceased.
A
26. Coming now to Ex.Ka-10, it needs to be noted that that

was an application for leave of absence given where he was
working. It is a common failing to try to justify the unsanctioned
absence from work by making out excuses and by taking some
D liberty with actual facts. Therefore, in his application for
condoning the absence for four days, if he said that his cousin
had met with a tragic accident, it cannot be inferred that the
deceased was actually his cousin and in court he was trying to
conceal the relationship.
E
27. We see no reason for the trial court to come to the
conclusion that PW.2 and PW.3 were speaking falsely and were
trying to hide the relationship between PW.2 and the deceased
or that he lived in the house of the deceased as a tenant.
F
28. In the first place no such inference is possible on the

basis of the depositions of PW.2 and PW.3 and secondly and
more importantly even if it is assumed for the sake of argument
that the depositions of PW.2 and PW.3 were incorrect in regard
to the relationship between PW.2 and the deceased and in
G regard to PW.2 living in the house of the deceased as a tenant
at the time of occurrence, we fail to see how that can be the
ground to reject their deposition entirely even though it is
perfectly sound in respect of the main prosecution case. In our
system of law, the maxim falsus in uno, falsus in omnibus is
H not followed.

[AFTAB ALAM, J.]
795
29. Here, it is to be stated that the learned counsel

appearing for the appellant submitted that the deposition of
PW.3 was quite unreliable as it contained certain statements
that were either incorrect or quite inconceivable. He referred
to paragraph 20 of the deposition of PW.3 where she said that
the first fight (between her husband and the appellant) took
place on the verandah of the shop; that blood also spilled on
the verandah of the shop and further that the first fight on the
verandah of the shop went on for about 10-15 minutes. He also
referred to paragraph 21 of the deposition of PW.3 where she
said that the accused held the scissors with both hands and
opened both the handles of the scissors and then attacked with
one hand at her husband.
30. Learned counsel submitted that there was no verandah
in front of the shop of the appellant and the manner of assault
as described by PW.3 was quite inconceivable.
31. We are unable to accept the submission that on the
basis of the statements pointed out by the counsel the
deposition of PW.3 is liable to be rejected. The statements
relied upon by the counsel were made by PW.3 under the stress
of cross-examination. She is a housewife and apparently not
highly educated. She has a limited vocabulary and an imperfect
capacity to describe the manner of assault on her husband. Her
statement especially in paragraph 21 is obviously in answer to
some convoluted question by the cross-examiner, to which she
replied as best as she could.
796
34. The Investigating Officer (PW.11) stated that he

arrested the appellant at 8.00 p.m. on July 28, 1988. In course
of interrogation he volunteered to produce the scissors used
[2013] 2 S.C.R.
A for killing the deceased from his shop. He took the Investigating
Officer to his shop, opened it with the keys kept in his pocket
and recovered the blood stained scissors from under the shop
counter and produced it before the Investigating Officer.
32. We find the testimonies of PW.2 and PW.3 wholly

reliable and see no reason not to accept the same.
33. Apart from the evidences of PW.2 and PW.3, there are
other circumstances that lend credence to the prosecution case.
35. PW.6 stated that on July 28, 1988, while he was going
to the house of the deceased, he met the police people in
Indira colony (the place where the occurrence took place). The
appellant was also with them. The police people brought the
appellant to his shop and got it opened and on the asking of
the Daroga, the appellant picked up a pair of scissors from the
C counter of his shop and handed it to the police. A recovery
memo was prepared and the signatures of the witness and one
Bhim Singh were taken on the recovery memo.
36. On a careful consideration of the materials on record
D and the submissions made on behalf of the appellant and the
State, we are of the view that the High Court has rightly rejected
the view taken by the trial court as wholly untenable and has
rightly accepted the evidences of PW.2 and PW.3 in order to
bring home the guilt of the appellant.
E
37. In the light of the discussion above, we find no merit in
the appeal. It is, accordingly, dismissed.
38. The bail bonds of the appellant are cancelled and he

is directed to surrender within four weeks from today, failing
which the trial court is directed to take all possible measures
to apprehend him to make him undergo the remaining
sentence.
R.P.
Appeal Dismissed.
798
[2013] 2 S.C.R. 797

RAM PAL @ BUNDA
v.
STATE OF HARYANA
APRIL 11, 2013

No. 120 of 2012.
High Court of Punjab and Haryana at Chandigarh in Criminal
Appeal No. 686-DB of 2006.
Kamal Mohan Gupta for the Respondent.
ORDER
B
R.K. Talwar, David Rao, K. Kaushik, Chander Shekhar

Ashri for the Appellant.
797
[2013] 2 S.C.R.

Penal Code, 1860 - ss.302 and 376 - Rape and murder
- Case based on circumstantial evidence - Conviction of
accused-appellant with 10 years RI - Justification - Held:
Justified - Medical evidence revealed that the victim was
subjected to sexual intercourse before her death - PW-10,
mother of the victim found the accused present at the scene
of crime immediately after the occurrence - Accused ran away
from the scene of occurrence without responding to the
queries of PW-10 and remained absconding for two days - All
the circumstances only supported the prosecution version No missing link in any of the circumstances found proved
against the accused - Further, accused had inimical
relationship with the family of the victim and thus, motive
aspect demonstrated by the prosecution also acceptable Moreover, accused-appellant did not let in any evidence for
his defence.
1. The sole appellant is the accused who was convicted

for the offences under Sections 302 and 376, Indian Penal
Code (IPC). He was sentenced to undergo rigorous
imprisonment for life and 10 years rigorous imprisonment for
committing rape and murder of one Devi (real name disguised).
According to the prosecution, a telephonic intimation was
received in the police station regarding the dead body of Devi
resident of Mangalore within the jurisdiction of Shahzadpur
police station, Ambala, lying in the fields of one Prithi Pal. On
reaching the spot PW-14, SHO recorded the statement of PW10 Sumitra Devi the mother of the deceased. It was learnt
through her that she had two daughters, that the elder one was
married while the younger one who went to the fields on
18.2.2005 at 6.30 p.m. to ease herself did not return and their
intensive search was in vain. In her statement she mentioned
the name of the appellant who was stated to have been found
at the place of search and on being asked, he pleaded
ignorance about the victim. It was her further statement that
only on the next day morning in day light they were able to trace
the body of the victim whose neck was wrapped with a blue
shawl owned by her. The complainant PW-10 raised suspicion
about the involvement of the appellant in the commission of the
offence in view of his past misbehavior towards her elder
daughter on which occasion he was reprimanded before the
local Panchayat and was forced to tender an apology. As it
was a case of circumstantial evidence, the trial Court after
scrutinizing the evidence of prosecution witnesses and after
taking into account the stand of the appellant in his 313 Cr.P.C.
statement noted the circumstances in paragraph 17 of the
judgment.
2. The circumstances noted were as under:
RAM PAL @ BUNDA v. STATE OF HARYANA
799
1) Medical evidence
800
A
2) presence of accused at the scene of crime immediately

after the occurrence
3) conduct of the accused in running away from the village
and remaining absconding for two days after the
occurrence and
4) motive for the offence.

3. While examining the above circumstances, on the motive
aspect the trial Court found that PW-11 Natho Devi, the elder
daughter of PW-10 in her evidence deposed that in the year
2002 when she along with her cousin was returning from the
fields, the appellant met them on the way along with his cousin
Sham Lal and that both of them teased deceased PW-11 and
her cousin and the bundle of the grass carried by them fell down.
It was also her statement that by providence they could save
themselves from the onslaught of the appellant and his cousin
on that occasion. She reported the same to her parents.
Pursuant to her complaint, a Panchayat was convened in her
village and in the Panchayat, the appellant and his cousin
begged pardon and that the appellant thereafter used to tell her
that one day or other he would take a revenge for the said
incident. It was also in her evidence that she belonged to labour
class and the appellant was nurturing a long standing grievance
and grudge in his mind against the family of the complainant
as he felt that he was humiliated in the Panchayat. The said
version of PW-11 was also corroborated by PW-10, the mother
of the victim and Natho Devi, PW-11. In the 313 statement
except making a simple denial, the appellant did not come
forward with any explanation insofar as the motive aspect was
concerned.
4. As far as the presence of the appellant at the scene of
occurrence was concerned PW -10 in her evidence
categorically explained as to how while searching for her
daughter she found the appellant in the fields and that on being
questioned about the whereabouts of her daughter the appellant
[2013] 2 S.C.R.
A without responding to her query ran away from the place of

occurrence. Though at the instance of the appellant it was
suggested that there were certain variations as compared to
her statement to the police as regards the presence of the
appellant, the trial Court found that such variation did not
B materially affect the evidence of PW-10 as regards the
presence of the appellant in the place of occurrence at the
relevant point of time and his running away from the scene of
occurrence without responding to the queries of the
complainant PW-10.
C
5. As far as the absence of the appellant from the village

for two days after the occurrence enough evidence was let in.
PW-12 father of the deceased who categorically stated that
while the occurrence took place on 18.2.2005, the appellant
was produced before the investigating officer by Jagmal Singh
D only on 21.2.2005 when he was arrested. It came to light that
after 18.2.2005 the appellant could be traced in the village only
on 21.2.2005 when he was arrested. Though PW-13 Jagmal
Singh who stated to have produced the appellant, turned hostile,
having regard to the record of proceedings which was not
E contradicted in the manner known to law, the above factum
about the absence of the appellant in the village for more than
two days was quite apparent and there was no reason to disbelieve the said factum.
6. When the medical evidence was analyzed, the trial
Court has found that according to PW-1 Dr. Ramesh and Dr.
Sushil Kumar Singal, the cause of death was asphyxia due to
strangulation which was ante-mortem and was sufficient to
cause death. Multiple aberrations and contusion of varying
sizes on the face, chin and few superficial aberrations on the
G back were noted. Exhibit PD and PD/1, the report of the
forensic science laboratory revealed blood on Shawl, Salwar
and underwear of the deceased. Human semen was detected
on the vaginal swab of the deceased. On examination of the
accused, after his arrest, by PW-2 Dr. Vikas Pal who took into
H possession the underwear of the appellant revealed that human
F
RAM PAL @ BUNDA v. STATE OF HARYANA
801
semen was detected in that as per the FSL report. The medical
evidence also revealed that the victim was subjected to sexual
intercourse before her death.
7. Thus all the above circumstances only supported the
prosecution version and there was no missing link in any of the
circumstances found proved against the appellant.
8. The appellant did not choose to let in any evidence for
his defence. In the 313 questioning what all the appellant said
was that due to inimical relations with the family of the
complainant, he was falsely implicated. The trial Court has
rightly noted that apart from what was alleged by PWs-10 and
11 no other inimical aspect with the family of the complainant
was brought forth as against the appellant. In the said
circumstances, the stand of the appellant also fully supported
the version of PWs-10 and 11. It is not the case of the appellant
that there was no previous contact in any manner whatsoever
as between the appellant and the family of the complainant.
Further considering the version of PWs-10 and 11 and the
stand of the appellant that there was inimical relationship with
the family of the complainant, it can only be concluded that such
inimical relationship would only relate to the appellant's
misbehaviour in the past with PW-11 and as stated by her in
her evidence the appellant who was forced to express his
apologies in the presence of elders in Panchayat, developed
a grudge in his mind to settle score with the family of the
complainant. Therefore, the motive aspect demonstrated by the
prosecution and accepted by the trial Court was also fully
justified.
9. Having regard to our above conclusion, we are
convinced that the conviction and sentence imposed on the
appellant by the trial Court which was also confirmed by the High
Court was perfectly justified and we do not find any good
grounds to interfere with the same. The appeal fails and the
same is dismissed.
B.B.B.
Appeal Dismissed.
[2013] 2 S.C.R. 802

A
TEJINDER SINGH @ KAKA

v.
STATE OF PUNJAB
(Criminal Appeal No. 1279 of 2008 etc.)
APRIL 11, 2013
[CHANDRAMAULI KR. PRASAD AND V. GOPALA
GOWDA, JJ.]
PENAL CODE, 1860:
ss. 302, 376(2)(g), 201 and 506 - Gang rape and murder
- Conviction by trial court - Affirmed by High Court - Held:
There is major discrepancy in the testimony of witnesses and
also registration of FIR on the basis of information furnished
by the informant - Further, the Sarpanch to whom the accused
D
were stated to have made confessional statement, reported
the matter to police after 16 days - His evidence is not
believable - The narration of the alleged offences against the
appellants and other accused by prosecution witnesses is
most unnatural and unbelievable to convict and sentence
E them - Neither trial court nor High Court has examined their
testimony properly by re-appreciating the same to record
findings on the charges - There is no material evidence on
record to convict and sentence the appellants - Their
conviction and sentences are set aside - Circumstantial
F evidence.
Extra-judicial confession - Held: Is a weak form of

evidence and based on such evidence no conviction and
sentence can be imposed upon the appellants and other
G accused.
CONSTITUTION OF INDIA, 1950:

Art. 142 - Benefit of acquittal extended to non-appellantH
802
TEJINDER SINGH @ KAKA v. STATE OF PUNJAB
803
accused also - Penal Code, 1860 - ss. 302, 376 (2) (g), 201,
404 and 506 IPC.
An FIR was lodged at the Police Station on 25.5.2000
for offences punishable u/s 302, 376(2)(g), 148, 201 and
404 read with s. 34 IPC, alleging that on 24.5.2000 at about
9 A.M. the deceased had gone to the fields to bring fodder
and did not return. At about 8 A.M. on 25.5.2000, the body
of the deceased was found buried in a fresh dug pit in
the sugar cane field belonging to accused 'SL'. The trial
court convicted accused 'GS' u/ss 302, 376(2)(g) and 506
IPC amd accused 'RV'. 'HS', 'BS' and SL u/ss 302,
376(2)(g) and 404 IPC. All these five accused were
sentenced to imprisonment for life. Accused 'TS' was
convicted u/s 201 IPC and sentenced to 7 years RI. The
High Court affirmed the conviction and the sentence.
Except accused 'GS', all other accused filed the appeals.
804
A
Allowing the appeals, the Court

HELD: 1.1 In so far as appellant 'TS' is concerned,
the charge is u/s 201 IPC. As could be seen from the
evidence of PW-8 and PW-9, there is major discrepancy
between their statements of evidence. PW-8 has stated
that appellant 'TS' started digging a pit with spade in the
sugarcane field, whereas PW-9 has stated that the said
appellant was not present at that time. In view of the major
discrepancy and contradiction between the statements
of the witnesses, it not only creates a grave suspicion
regarding the said appellant being part of the offence but
also makes his presence doubtful at the place of
occurrence. Therefore, placing reliance by trial court
upon the testimony of the said witnesses and recording
the finding against appellant 'TS' on the charge and
passing an order of conviction and sentence which is
affirmed by the High Court is without proper appreciation
of the major discrepancy in the statements of PWs 8 and
9 regarding the presence of appellant 'TS' at the place of
[2013] 2 S.C.R.
A occurrence. The courts below have also failed to take

into consideration the evidence of PW-10, wherein she
had deposed about the presence of other accused near
the place of occurrence, but she has not named appellant
'TS. Moreover, there is nothing substantive and positive
B evidence placed on record against appellant 'TS" by the
prosecution to prove its case against him. It cannot be
said that the prosecution has proved its case beyond
reasonable doubt. The benefit of doubt should have
been extended to 'TS' in the impugned judgment by the
C High Court while re-appreciating the evidence on record
in exercise of its jurisdiction. [para 18, 20 and 21] [817-DE, F-H; 818-A-E, F-H]
Sukhram Vs. State of Maharashtra 2007 (9) SCR 44 =

2007 (7) SCC 502 - relied on.
1.2 Thus, this Court holds that there is major

discrepancy in the testimony of witnesses PW-8 and PW9 and also registration of FIR on the basis of information
furnished by the informant. The finding of the trial court
E in this regard is erroneous in law for the reason that the
evidence of PWs 8 and 9 has raised serious suspicion
and doubt. Therefore, the same must be extended to the
other appellants. [para 22] [820-A-C]
1.3 Further, PW-7, to whom the co-accused namely,
'GS', 'HS' and 'SL', made a disclosure statement
describing the whole incident to him on 12.06.2000, has
neither recorded the alleged extra judicial confession nor
made the disclosure of the said statement within
reasonable time but took 16 days to disclose the extra
G judicial confessions made by the accused persons to
inform the police. The delay in informing the police
regarding the extra judicial confessional statement
alleged to have made to him by some of the accused has
not been explained by PW-7 and the reason sought to be
H given by him for non disclosure of the same to the police
F
805
cannot be accepted by this Court as it is not natural and

also not satisfactory. His evidence is not believable.
Therefore, the reliance placed upon the evidence of PW7 by both the trial court and the High Court to convict the
appellant and sentencing him for the offence u/s 201 IPC
is erroneous in law. [para 23 and 25] [820-D-F; 823-G]
806
A
Dwarkadas Gehanmal Vs. State of Gujarat 1999 (1)

SCC57 - relied on.
1.4 Besides, the extra judicial confession is a weak
form of evidence and based on such evidence no
conviction and sentence can be imposed upon the
appellants and other accused. [para 24] [821-B]
Pancho Vs. State of Haryana 2011 (12) SCR 1173 =
2011 (10) SCC 165; and Sahadevan & Anr. Vs. State of
Tamil Nadu 2012 (4) SCR 366 = 2012 (6) SCC 403 - relied
on.
1.5 In so far as the other appellants in connected
appeals are concerned, the trial court after placing
reliance upon the evidence of PW-7, PW-8 and PW-9 has
recorded the findings on charges against them, which is
wholly untenable in law. Neither the trial court nor the
High Court has examined their testimony properly by reappreciating the same to record the findings on the
charges. The narration of the alleged offences against
the appellants and other accused by the prosecution
witnesses is most unnatural and unbelievable to convict
and sentence them. The courts below should have
appreciated the evidence on record properly and should
not have believed the statement of evidence of PW-8 for
the reason that neither he has disclosed the alleged
offences said to have been committed by the appellants
and other accused nor did he depose before the trial
court or to anyone of the villagers. The explanation given
by him that he was held out of fear and, therefore, he did
[2013] 2 S.C.R.
A not disclose the incident to anyone of the villagers cannot

be accepted as it is unnatural. Therefore, the evidence of
PW-8 cannot be believed by this Court. [para 27] [824-DH; 825-A]
1.6 The testimonies of PW-8 and PW-9 would clearly
B go to show that there is a discrepancy regarding the
narration of the offences said to have been committed by
the accused. Therefore, the courts below should not
have placed reliance on the evidence of PW-8 and PW-9
and recorded the finding that the charges levelled against
C the appellants/accused were proved. Both the courts
below have committed serious error in placing reliance
upon the untrustworthy testimonies of PW-8 and PW-9
and passing an order of conviction and sentence against
them. Further, from the evidence of the other witness,
D namely, PW-10, the offence alleged to have been
committed by said accused also cannot be accepted.
[para 27 & 28] [825-A-C; D-E]
1.7 The courts below have convicted and sentenced

the appellants on the charges framed against them based
E on the circumstantial evidence, even though the chain of
events are not proved by the prosecution to bring home
the guilt of the appellants/accused on the charges leveled
against them. The concurrent finding recorded by the
High Court on the charges is opposed to the legal
F principles laid down in this regard by this Court. The
conviction of the appellants/accused for the alleged
offence on the basis of evidence of the prosecution
witnesses suffers from error in law. [para 28 and 31] [825G-H; 826-H; 827-A-B]
G
1.8 There is no material evidence on record to convict
and sentence the appellants. After going through the

deposition of the prosecution witnesses, this Court is
satisfied that the case of the prosecution against the
appellants/accused on the charges creates suspicion and
H doubt in the absence of legal evidence on record and,
TEJINDER SINGH @ KAKA v. STATE OF PUNJAB 807

therefore, the same should enure to the benefit of
accused for their acquittal. Their conviction and
sentences are set aside. [para 30 and 32] [826-G; 827-C]
2. Accused, viz. 'GS' who has also been convicted
u/ss 302, 376(2)(g) and 506 IPC and sentenced to undergo
imprisonment as awarded by trial court and affirmed by
the High Court is extended the same benefit in exercise
of jurisdiction of this Court under Article 142 of the
Constitution, and he is also directed to be released. [para
33] [827-D-E]
808
A
Case Law Reference:

cited
para 12
1999 (1) SCC 57
relied on
para 12
2011 (12) SCR 1173
relied on
para 12
2012 (4) SCR 366
relied on
para 12
2007 (9) SCR 44
relied on
para 12

No. 1279 of 2008.
High Court of Punjab and Haryana at Chandigarh in Crl. A. No.
716-DB of 2004.
WITH
Crl. A. No. 1280, 1281 and 1282 of 2008.
[2013] 2 S.C.R.
Sanchar Anand, AAG, Arun K. Sinha, Kuldip Singh for the

Respondent.
T. Subramanium v. State of Tamil Nadu 2006 (1) SCR

180 = (2006) 1 SCC 401 - cited.
2006 (1) SCR 180
K.T.S. Tulsi, Fakhruddin (A.C.), Kuber Boddh, Kartikay

(For Arun Kumar Beriwal), Sheeba Fakhruddin, Surya Kamal
Mishra for the Appellant.
H
V. GOPALA GOWDA, J. 1. These Criminal Appeals are

B directed against the Judgment and Order dated 05.06.2006
passed by the Punjab and Haryana High Court at Chandigarh
in Criminal Appeal No 716-DB of 2004. The Punjab and
Haryana High Court affirmed the conviction and sentence of the
accused for offences punishable under Sections 302,
C 376(2)(g), 148, 201,404 read with Section 34 of the Indian
Penal Code with different sentences of imprisonment which will
be referred to in the later portion of the judgment to run
concurrently and fine imposed upon them. The same is under
challenge in these appeals by the appellants urging various
D grounds. However, the High Court acquitted the appellants of
the charges framed under Sections 3 and 4 of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act,
1989.
2. The appellants have prayed for allowing the appeals by
E setting aside the impugned judgment of the High Court and to
acquit them from all the charges urging various facts and
grounds in support of the questions of law framed in these
appeals.
F
For proper appreciation of rival factual and legal

submissions made by the learned counsel for the parties the
relevant facts in relation to the prosecution case are briefly
stated as under:
3. On 25.05.2000, FIR No. 73 was lodged at Police

G Station Banga, Nawanshahar on the basis of statement of
Nago Ram, S/o Munshi Ram who is relative of Seeso, the
deceased, for offences under Sections 302, 376(2) (g), 148,
201, 404 read with Section 34 IPC alleging that on 24.05.2000
at about 9.00 a.m. the deceased went to the field to bring fodder
H and when she did not return home till afternoon, the informant
TEJINDER SINGH @ KAKA v. STATE OF PUNJAB 809

[V. GOPALA GOWDA, J.]
along with family members of the deceased and villagers
started searching her but they could not gather any information.
It was alleged that on 25.05.2000 at 8.00 a.m., the informant
along with other people went to the sugarcane field searching
for the deceased where they found a fresh pit dug filled back
with earth inside which the dead body was lying buried in the
soil covered with a palli. It was further alleged that the gold ear
rings, silver bangles and anklets from the dead body of the
deceased were found missing. It was alleged by the informant
that Sunny Lal Paswan, the owner of the land along with threefour persons after committing the murder buried the body of the
deceased.
4. On the basis of the registration of the said FIR the case
was investigated and report under Section 173 of the Code of
Criminal Procedure was filed before the committal court and
thereafter it has committed the case to the learned Additional
Sessions Judge, Nawanshahar and the case went for trial as
the accused pleaded not guilty of charges and prayed to try
them for the charges. The charges were framed for offences
punishable under Sections 302, 376(2)(g), 148, 201, 404 read
with Section 34 IPC and also under Sections 3 and 4 of the
Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989. The prosecution witnesses PW-1 to PW15 were examined and the statement of evidence of the
witnesses were recorded by the learned Addl. Sessions Judge.
The learned Additional Sessions Court has convicted the
accused with various sentences for different offences along with
fine as has been set out in detail in the later part of the
judgment. The same is affirmed by the High Court by passing
the impugned judgment. The correctness of the same is
challenged in these appeals by the appellants by raising certain
legal questions and urging grounds in support of the same.
5. It is contended by the learned senior counsel for the
appellant Mr. K.T.S. Tulsi that the High Court ignored the vital
aspect of the case, namely, PW-9 Niranjan Ram, the so-called
sole eye witness of the alleged offences who has categorically
810
A
[2013] 2 S.C.R.
stated in his evidence that on 24.05.2000 at about 10.30 a.m.

in order to ease himself, he had gone towards the eastern side
of the village where a fair was being held. In order to get his
hands washed he had gone towards the tube well, where he
heard some shrieks, and found that Seeso, wife of Bhajan Ram
B was lying on the ground and accused Gurdeep Singh was
holding her arms, accused Balwinder Singh and Rajinder
Kumar had lifted the legs of Seeso upwards and accused
Harnek Singh was committing rape on her. Accused Sunny Lal
and Harnek were holding the arms of Seeso. Thereafter
accused Gurdeep Singh gave a Kassi blow on the neck of
C
Seeso. On seeing this he shrieked. On seeing PW-9, the
accused Gurdeep Singh chased him with a Kassi in his hand
and threatened him that in case he discloses the incident in the
village,heandhisfamilywillbedealt withthesamemanner.
Out of fear because of the threat having been inflicted by
D Gurdeep Singh, PW-9 did not disclose the incident to any one
of the villagers or to the family members of the deceased.
A
6. It is urged by Mr. K.T.S. Tulsi, the learned senior counsel

for the appellant in Crl.A. No.1279 of 2008 and Mr. Fakhruddin,
E the learned senior counsel who is appearing as amicus curiae
in the connected appeals that the statement of evidence of the
witnesses narrating the offences said to have been committed
by the appellants is most unnatural and improbable to believe.
This aspect of the matter in relation to these appellants is not
F properly appreciated by the High Court while affirming the
conviction and sentences imposed upon them by the learned
Additional Sessions judge. The learned senior counsel Mr. Tulsi
submits that the High Court placing reliance upon the testimony
of PW-9 by extracting his brief statement of evidence in the
impugned judgment has concurred with the conviction and
G
sentences imposed upon the appellant by the Additional
Sessions judge and the same is erroneous on the part of the
High Court. Hence, he submits that the same is liable to be set
aside.
H

811
7. It is further contended by the learned senior counsel that

the High Court has erroneously placed reliance upon the
testimony of PW-8 Chet Ram, the brother-in-law of the
deceased, who is not even an eye-witness to the incident. PW8 deposed in his evidence that he saw accused Gurdeep
Singh, Harnek Singh, Balwinder Singh, Tejinder Singh and
Sunny Lal Paswan carrying some heavy material in a palli and
they had placed the same in the sugarcane field. Accused
Tejinder Singh dug a pit in the field with the help of a spade
and buried the material underneath the earth. On his asking
them as to what they had done, accused Gurdeep Singh told
that he will also be treated in the same manner and uttered the
words Kutia Chamara Tera bhi iho hal karange. Thereafter the
accused Gurdeep Singh with a Kassi in his hand, ran towards
him. Out of fear, he ran away towards the village.
8. The learned senior counsel further submits that even
presuming the aforesaid witnesss statement to be true, it is
very unusual and unnatural on his part being the brother-in-law
of the deceased in not informing the incident either to the family
members or to the police. This aspect of the matter has not
been considered by the High Court thereby, it has overlooked
the major discrepancy in the statements of witnesses between
PW-8 and PW-9, on whose evidence the whole prosecution
case is based. PW-8 has stated in his evidence that appellant
Tejinder Singh started digging a pit while PW-9 has
categorically deposed in his evidence that accused Tejinder
Singh was not there at that time.
9. The deposition of the aforesaid witness creates a grave
suspicion not only regarding the appellant Tejinder Singh being
part of the conspiracy to commit offences but also his presence
at the place of occurrence. Non consideration of this major
discrepancy in the evidence of the aforesaid witness both by
the Trial Court as well as the High Court, has rendered the
findings on the charges erroneous in law and therefore the same
is liable to be set aside. Further, the High Court has failed to
812
A
[2013] 2 S.C.R.
A re-appreciate the evidence of PW-10 Krishna, who has in her

deposition, stated the names of the accused persons but she
has not named the appellant Tejinder Singhs involvement in
committing offences as alleged, which casts a major suspicion
in the statement of PW-8 Chet Ram.
B
10. It is further contended by the learned senior counsel
appearing on behalf of the appellant Tejinder Singh in Crl.A. No.
1279 of 2008 that the High Court did not follow the well
established principle of law that in appeal against the conviction,
the appellate court has the duty to appreciate the evidence on
C record and benefit of reasonable doubt has to be given to the
accused which has not been done by it. In support of this
submission, reliance is placed upon the decision of this Court
in the case of T.Subramanium v. State of Tamil Nadu 1 .
Further, elaborating his submission, he has urged that if two
D views are possible from the very same evidence, it cannot be
said that the prosecution had proved its case beyond
reasonable doubt. There is a grave doubt regarding the
presence of appellant Tejinder Singh at the place of occurrence,
which goes to the root of the prosecution case as far as the
E role of the appellant is concerned in committing offences as
alleged.
11. The learned senior counsel has further contended that
the High Court has erroneously accepted the evidence of
F another witness Bhupinder Singh PW-7, (the erstwhile
Sarpanch) treating him as a credible witness ignoring the
inherent improbabilities in his statement of evidence regarding
the alleged extra judicial confession said to have been made
to him by the three accused persons other than the appellant
in Crl.A. No.1279 of 2008 and the trial court and the High Court
G
having placed reliance upon the same recorded the finding that
the charge against the said appellant is proved and conviction
and sentence imposed upon him for the alleged offence. This
finding of the courts below is bad in law and is liable to be set
H
1.
(2006) 1 SCC 401.

813
aside. According to the deposition of PW-7, who has deposed

that on 28.5.2000 accused Gurdeep Singh, Harnek Singh and
Sunny Lal Paswan made a disclosure statement to him
describing the whole incident. He has disclosed the same to
the police after 16 days of the alleged disclosure statements
said to have made to him by the said accused and he had
handed over the accused to police custody on 12.06.2000. The
reason regarding the delay of 16 days given by him was that
he was busy with some work and therefore, there was an
inordinate delay of 16 days in informing the incident to the
police remains unsatisfactory on the part of the said witness
to whom the extra judicial confession alleged to have been
made by the co-accused. This renders the conduct of PW-7
doubtful and the content of his testimony suspicious in nature.
Further, he being the Sarpanch of the village instead of taking
instant action against the accused persons who alleged to
have committed rape, murder and destroyed the evidence,
informed the police after a lapse of 16 days. This cannot be
believed by this Court.
12. It is further contended by him that it is pertinent to
mention that the urgency of the work with which he was busy
was nowhere explained by him. Learned senior counsel placed
reliance upon judgment of this Court in Dwarkadas Gehanmal
Vs. State of Gujarat2 in support of his legal submission that if
the conduct of the witness is inconsistent with the conduct of
an ordinary human being then his testimony has no credence
for acceptance. Paragraph 14 of Dwarkadas Gehanmals case
(supra) reads as under:
14. ....Deva Ram PW-4 would not have waited for five
days to disclose the alleged confession made by the
appellant to him but on the contrary, he would have either
on the same evening gone to the police station to lodge a
complaint on the basis of the confessional statement of
appellant and/or would have gone to the house of
2.
(1999) 1 SCC 57.
814
A
[2013] 2 S.C.R.
Noorbhai to inform the family members about the

confessional statement of the appellant.....
Therefore, the learned senior counsel contends that the

observations made in the above referred case would support
the case of the appellants herein.
Learned senior counsel has placed reliance on various

other judgments of this Court wherein extra judicial confession
was made. Relevant paragraphs will be extracted in the
appropriate reasoning portion of this judgment to appreciate
C the legal submission made by him and to set aside the
impugned judgment and to pass an order of acquittal.
13. The learned senior counsel Mr. Tulsi has relied upon
the following cases in support of his legal submissions
contending that the same would with all fours be applicable to
D
the case in hand, namely, Pancho Vs. State of Haryana3,
Sahadevan & Anr. Vs. State of Tamil Nadu4 and Sukhram Vs.
State of Maharashtra5.
14. The learned senior counsel, Mr. Fakhruddin who is
E appearing for the appellants in the connected appeals has also
made his submissions urging the similar grounds as urged by
Mr. Tulsi, the learned senior counsel for the appellant in Crl.A.
No.1279 of 2008 regarding the evidence of PW-7 in relation
to the extra judicial confessional statement alleged to have
F made to him by some of the accused. Further, he has invited
our attention to the depositions of prosecution witnesses to
show that the findings recorded against the accused by the
courts below is not only erroneous but also suffer from error in
law and therefore the same is liable to be set aside by allowing
G the appeals.
15. On the other hand, Mr. Sanchar Anand, the learned
3.
(2011) 10 SCC 165.
4.
(2012) 6 SCC 403
5.
(2007) 7 SCC 502.

815
Additional Advocate General for the State of Punjab, has

sought to justify the findings and reasons recorded on the
charges framed against the appellants herein by the courts
below. The trial court being the court of original jurisdiction, in
exercise of its power, appreciated the evidence on record and
answered the charges levelled against the appellants and other
accused holding that they are guilty of the offences committed
against the deceased and accordingly after hearing them, the
learned Sessions judge has imposed sentence of
imprisonment upon the accused for different offences as
mentioned in the table which is extracted hereunder:
Name of
convict
Under
Section
Gurdeep
Singh
302 IPC
816
A
RI for 1 year and to pay fine of Rs.1000/

or in default further RI for 1 month.
Balwinder 302 IPC

Singh
alias
Binder
Life imprisonment and fine of Rs.10,000/in default further RI for one year.
376(2)(g)IPC Life imprisonment and fine of Rs.10,000/in default further RI for one year.

Sentence
404 IPC
RI for 5 years and to pay fine of Rs.5000/

or in default further RI for 6 months.
Sunny Lal
Paswan
302 IPC
404 IPC

Tejinder
201 IPC
Singh
alias Kaka
RI for 7 years and to pay a fine ofRs.5000/

or in default further RI for 6 months
506 IPC
302 IPC
[2013] 2 S.C.R.
404 IPC
Rajinder
Kumar
The sentences of imprisonment shall, however, run concurrently

404 IPC
Harnek
302 IPC
Singh
alias Naka
16. It is further submitted by the learned Additional

Advocate General that the correctness of the findings and
reasons in the case recorded by the learned sessions judge
in convicting and sentencing the appellants/accused has been
examined by the High Court in exercise of its jurisdiction after
G
extracting the testimony of the witnesses in the impugned
judgment and applying its mind in the backdrop of legal grounds
urged in the appeal before the High Court. The High Court has
affirmed the conviction and sentence by recording the
concurrent findings of fact on the charges by assigning valid
H and cogent reasons. Therefore, the same does not call for

817
interference by this Court in exercise of its jurisdiction under

Article 136 of the Constitution of India.
17. With reference to the above factual and legal
contentions urged on behalf of the parties, this court is required
to examine as to whether the concurrent impugned findings on
the charges levelled against the appellants in the impugned
judgment are erroneous and require interference by this Court
and whether the conviction and sentence imposed on the
appellants on the basis of the evidence of PW-7, PW-8 and
PW-9 and other prosecution witnesses is legal and valid and
requires interference?
818
A
18. The aforesaid points are required to be answered in

favour of the appellants for the following reasons:
In so far as the appellant Tejinder Singh is concerned, the
charge is under Section 201 IPC. He has been convicted and
sentenced with rigorous imprisonment for 7 years and a fine
of Rs.5000/-or in default, to undergo a further rigorous
imprisonment for 6 months. This aspect of the matter is
considered by us in the backdrop of factual and legal
contentions urged by learned senior counsel Mr. Tulsi.
19. It is pertinent to refer to the case of Sukhram (supra)
in order to appreciate the scope of Section 201 IPC. The
relevant paragraphs will be extracted to appreciate his
contentions in the reasoning portion of the judgment.
20. As could be seen from the evidence of PW-8 and PW9, there is major discrepancy between their statements of
evidence. PW-8 Chet Ram has stated in his evidence that the
appellant Tejinder Singh started digging a pit with spade in the
sugarcane field, whereas PW-9 has stated in his evidence that
the said appellant was not present at that time. In view of the
major discrepancy and contradiction between the statements
of one witness and the other, it not only creates a grave
suspicion regarding the said appellant being part of the offence
[2013] 2 S.C.R.
A but also makes his presence doubtful at the place of

occurrence. Therefore the ground urged in this regard by the
learned senior counsel that the learned sessions judge in
placing reliance upon the testimony of the said witnesses and
recording the finding against the above appellant on the
B charges and passing an order of conviction and sentence
which is affirmed by the High Court is without proper
appreciation of the major discrepancy in the statements of the
above named witnesses regarding the presence of the
aforesaid appellant at the place of occurrence. The courts
C below have also failed to take into consideration the evidence
of PW-10 Krishna, wherein she had deposed in the case that
on 24.5.2000 at about 8 a.m. she along with Nimmo had gone
to take fodder from the fields. At about 9.00 a.m. when they
were coming back, they found that Sunny Lal was watering the
fields. In the meantime, the deceased also entered the fields
D
having a jute cloth in her hands. The accused Binder and Kaka
were seen going towards the tube well. Accused Gurdeep
SinghandHarnekSingh werealsoseengoingonthescooter
towards the tube well side, but she has not named the appellant
Tejinder Singh. This creates a major discrepancy in the
E statements of evidence of PW-8 and PW-9 regarding the
participation of this appellant in committing offence as alleged
against him.
21. Moreover, there is nothing substantive and positive
evidence
placed on record against the aforesaid appellant by
F
the prosecution to prove its case against him. Therefore, the
reliance placed in Sukhrams case (supra) regarding legal
proposition should be applied to the case in hand. It cannot be
said that the prosecution has proved its case beyond
G reasonable doubt. The benefit of doubt should have been
extended to Tej inder Singh in the impugned judgment by the
High Court while re-appreciating the evidence on record in
exercise of its jurisdiction as it has failed to notice that the ratio
laid down at para 18 in the case of Sukhram referred to supra
H that to constitute an offence under Section 201 IPC the following

819
four ingredients viz. (i) to (iv) have to be established:

18. To bring home an offence under Section 201
IPC, the ingredients to be established are: (i) committal
of an offence; (ii) person charged with the offence under
Section 201 must have the knowledge or reason to believe
that an offence has been committed; (iii) person charged
with the said offence should have caused disappearance
of evidence; and (iv) the act should have been done with
the intention of screening the offender from legal
punishment or with that intention he should have given
information respecting the offence, which he knew or
believed to be false. It is plain that the intent to screen the
offender committing an offence must be the primary and
soleaimoftheaccused.It hardlyneedsanyemphasis
that in order to bring home an offence under Section 201
IPC, a mere suspicion is not sufficient. There must be on
record cogent evidence to prove that the accused knew
or had information sufficient to lead him to believe that the
offence had been committed and that the accused has
caused the evidence to disappear in order to screen the
offender, known or unknown.
19. In Palvinder Kaur v. State of Punjab this Court had
said that in order to establish the charge under Section
201 IPC, it is essential to prove that an offence has been
committed; that the accused knew or had reason to
believe that such offence had been committed; with
requisite knowledge and with the intent to screen the
offender from legal punishment, caused the evidence
thereof to disappear or gave false information respecting
such offence knowing or having reason to believe the
same to be false. It was observed that the court should
safeguard itself against the danger of basing its conclusion
on suspicions, however, strong they may be. (Also see
Suleman Rahiman Mulani v. State of Maharashtra,
Nathu v. State of U.P, V.L. Tresa v. State of Kerala.)
820
A
[2013] 2 S.C.R.
22. For the reasons stated supra we have to record a

finding in this judgment that there is major discrepancy in the
testimony of witnesses PW-8 and PW-9 and also registration
of FIR on the basis of information furnished by the informant.
The FIR was registered, investigation was made and charge
B sheet was filed and the appellant was tried for the charges as
he had pleaded not guilty and the Sessions Court convicted and
sentenced him for the offence. This finding is erroneous in law
for the reason that the statement of evidence of the prosecution
witnesses referred to supra has raised serious suspicion and
C doubt. Therefore, the same must be extended to the other
appellants.
23. Further, the learned senior counsel has rightly placed

reliance upon the testimony of PW-7 to whom, according to him,
the accused persons namely, Gurdeep Singh, Harnek Singh
and Sunny Lal Paswan, co-accused, made a disclosure
statement describing the whole incident to him on 12.06.2000
who has neither recorded the alleged extra judicial confession
nor made the disclosure of the said statement within reasonable
time but 16 days to disclose the extra judicial confessions made
by the accused persons to inform to the jurisdictional police.
The delay in informing the police regarding the extra judicial
confessional statement alleged to have made to him by some
of the accused has not been explained by PW-7 and the reason
sought to be given by him for non disclosure of the same to
the police cannot be accepted by this Court as it is not natural
and also not satisfactory. Further, the learned senior counsel
Mr. Tulsi has rightly placed reliance upon the judgment of this
Court in Dwarkadas Gehanmal's case (supra) with regard to
the conduct of the witness in the said case which is inconsistent
with the conduct of an ordinary human being. The observations
made in the abovementioned case with all fours applicable to
the facts situations of the case in hand, that if extra judicial
confessional statement was made by the accused as stated
by him in his statement before the trial court were to be true, it
was his duty to disclose the same immediately to the police or

821
to the relatives of the deceased. That has not been done by

him and therefore his evidence is not believable.
24. The extra judicial confession is a weak form of evidence
and based on such evidence no conviction and sentence can
be imposed upon the appellants and other accused. In support
of this proposition, the relevant paragraphs of Panchos case
are extracted hereunder:
16. The extra-judicial confession made by A-1, Pratham
is the main plank of the prosecution case. It is true that an
extra-judicial confession can be used against its maker,
but as a matter of caution, courts look for corroboration to
the same from other evidence on record. In Gopal Sah v.
State of Bihar this Court while dealing with an extra-judicial
confession held that an extra-judicial confession is on the
face of it, a weak evidence and the courts are reluctant, in
the absence of a chain of cogent circumstances, to rely
on it for the purpose of recording a conviction. We must,
therefore, first ascertain whether the extra-judicial
confession of A-1, Pratham inspires confidence and then
find out whether there are other cogent circumstances on
record to support it.
822
A
[2013] 2 S.C.R.
.
27. This Court in Haricharan case further observed that
Section 30 merely enables the court to take the confession
into account. It is not obligatory on the court to take the
confession into account. This Court reiterated that a
confession cannot be treated as substantive evidence
against a co-accused. Where the prosecution relies upon
the confession of one accused against another, the proper
approach is to consider the other evidence against such
an accused and if the said evidence appears to be
satisfactory and the court is inclined to hold that the said
evidence may sustain the charge framed against the said
accused, the court turns to the confession with a view to
assuring itself that the conclusion which it is inclined to
draw from the other evidence is right.
Further, relevant paragraphs from Sahadevans case are
extracted hereunder:
25. This Court further noted that: (Kashmira Singh case,

AIR p. 160, para 10)
10. cases may arise where the Judge is not

prepared to act on the other evidence as it stands
even though, if believed, it would be sufficient to
sustain a conviction. In such an event, the Judge
may call in aid the confession and use it to lend
assurance to the other evidence and thus fortify
himself in believing what without the aid of the
confession, he would not be prepared to accept.
..
14. It is a settled principle of criminal jurisprudence

that extra-judicial confession is a weak piece of
evidence. W herever the court, upon due
appreciation of the entire prosecution evidence,
intends to base a conviction on an extra-judicial
confession, it must ensure that the same inspires
confidence and is corroborated by other
prosecution evidence. If, however, the extra-judicial
confession suffers from material discrepancies or
inherent improbabilities and does not appear to be
cogent as per the prosecution version, it may be
difficult for the court to base a conviction on such a
confession. In such circumstances, the court would
be fully justified in ruling such evidence out of
consideration.
..

823
16. Upon a proper analysis of the above referred judgments

of this Court, it will be appropriate to state the principles
which would make an extra-judicial confession an
admissible piece of evidence capable of forming the basis
of conviction of an accused. These precepts would guide
the judicial mind while dealing with the veracity of cases
where the prosecution heavily relies upon an extrajudicial
confession alleged to have been made by the accused:
(i) The extra-judicial confession is weak evidence
by itself. It has to be examined by the court with
greater care and caution.
824
A
(ii) It should be made voluntarily and should be

truthful.
(iii) It should inspire confidence.
(iv) An extra-judicial confession attains greater
credibility and evidentiary value if it is supported by
a chain of cogent circumstances and is further
corroborated by other prosecution evidence.
(v) For an extra-judicial confession to be the basis

of conviction, it should not suffer from any material
discrepancies and inherent improbabilities.
(vi) Such statement essentially has to be proved like
any other fact and in accordance with law.
25. Reliance placed upon the decisions of this Court in the
case of Sahadevans case (supra) supports the case of the
appellant herein. Hence, the reliance placed upon the evidence
of PW-7 by both the Additional sessions judge and the High
Court to convict the appellant and sentencing him for the offence
under Section 201 IPC is erroneous in law for the reason that
they have not appreciated the testimony of PW-7 in the
backdrop of the legal principles laid down by this Court in the
above referred cases on the question of extra judicial
[2013] 2 S.C.R.
A confession said to have been made by some of the accused

to him. Non disclosure of the same either on the same day or
within reasonable time either to the police or to the family
members of the deceased does not inspire confidence to be
accepted as testimony to sustain the conviction and sentence.
B After 16 days he had disclosed it to the jurisdictional police
which would clearly go to show that the conduct of the said
witness is unnatural and improbable to believe and his conduct
is not that of an ordinary human being.
26. Therefore, the conviction and sentence imposed upon
C the appellant in Crl. A. No.1279 of 2008 by placing reliance on
the testimony of PW-7 along with testimony of PW-8 and PW9 suffer from major discrepancy and therefore, the appeal in
so far as Tejinder Singh is concerned must succeed.
27. In so far as the other appellants in connected appeals
are concerned, the sessions court after placing reliance upon
the evidence of PW-7, PW-8 and PW-9 has recorded the
findings on charges against them, which is wholly untenable in
law. Neither the learned additional sessions judge nor the High
E Court has examined their testimony properly by re-appreciating
the same to record the findings on the charges. The narration
of the alleged offences against the appellants and other
accused by the prosecution witnesses is most unnatural and
unbelievable to convict and sentence them. The courts below
F should have appreciated the evidence on record properly and
they should not have believed the statement of evidence of PW8 for the reason that neither he has disclosed the alleged
offences said to have been committed by the appellant and
other accused nor did he depose before the trial court or to
anyone of the villagers. The explanation given by him regarding
G
the non disclosure of the alleged offences said to have
committed by the appellants and other accused that he was
held out of fear and therefore, he did not disclose the incident
to anyone of the villagers cannot be accepted as it is
unnatural. Therefore, the evidence of PW-8 cannot be believed
H
D

825
by this Court. The testimonies of PW-8 and PW-9 would clearly

go to show that there is a discrepancy regarding the narration
of the offences said to have been committed by the accused.
Therefore, the courts below should not have placed reliance on
the evidence of PW-8 and PW-9 and recorded the finding that
the charges levelled against the appellant/accused were
proved. Both the courts below have committed serious error in
placing reliance upon the untrustworthy testimonies of PW-8
and PW-9 and passing an order of conviction and sentence
against them.
28. Further, the evidence of the other witness namely, PW10 who deposed that on 24.5.2000 at about 8.00 a.m., she
along with Nimmo had gone to bring fodder from the fields. At
about 9.00. a.m. when they were coming back, they found that
Sunny Lal was watering the fields. In the meanwhile she saw
deceased Seeso also entered into the fields having jute cloth
in her hands. And after sometime she saw the other accused
Binder and Kaka going towards the tube well side. Thus, the
offence alleged to have been committed by the said accused
also cannot be accepted by us. Further the reliance placed by
the courts below on the evidence of PW-7, the erstwhile
Sarpanch of the village panchayat regarding the extra judicial
confession said to have been made to him by some of the
accused referred to supra should not have been accepted by
thecourtsbelow.Inthisregard,we havealreadyrecordedour
reasons and findings with reference to the case law of this
Court while considering the case of Tejinder Singh, the
appellant in Crl.A. No.1279 of 2008 in the earlier portion of this
judgment. The same reasons hold good to the case of these
appellants also. Further, the trial court has committed grave
error in giving credence to improbable and unnatural evidence
of PW-7 regarding extra judicial confession as he has taken
16 days to inform the police. The conviction of the appellants/
accused for the alleged offence on the basis of evidence of the
above prosecution witnesses is not only erroneous in law but
also suffers from error in law and therefore, the same is liable
826
A
[2013] 2 S.C.R.
A to be set aside by allowing the connected appeals also.

29. Further, the post mortem examination conducted by
Board of Doctors has noticed the following injuries on the dead
body of Seeso which are relevant for the case:
(a)
Incised wound 14 x 3 cm x 5 cm deep, on the left

side of face and neck, horizontally placed on the
lateral apsect of face and neck, anterior and was
8 cm from mid-line of face and 7 cm below the left
eye-brow, clots were present in the vicinity of the
wound. The internal juglar vein and external carotid
artery were cut. Retraction of edges of the wound
were seen.
.
(h)
There was no external mark of injury, labia, majora

and minor were healthy. No blood or discharge,
slides 1 and 3 were prepared from the intoritis.
Swabs 5 and 7 were prepared. Per speculum
examination showed no mark of injury on the vagina,
cervix was normal and were sent to the Chemical
examiner, Patiala for semen analysis.
The cause of death as per the opinion of the doctors was shock
and haemorrhage due to injury No. (a) which was on the face
and neck and was sufficient to cause death in the ordinary
course of nature.
30. In our considered view, after going through the

deposition of the prosecution witnesses from the original record
of the trial court, we are satisfied that the case of the
G prosecution against the appellants/accused on the charges
creates suspicion and doubt in the absence of legal evidence
on record and therefore the same should enure to the benefit
of accused for their acquittal.
H
31. The courts below have convicted and sentenced the

appellants on the charges framed against them based on the

circumstantial evidence, even though the chain of events are
not proved by the prosecution to bring home the appellants/
accused guilt on the charges leveled against them. The
concurrent finding recorded by the High Court on the charges
is opposed to the legal principles laid down in this regard by
this Court.
32. We have examined the entire case in relation to these
appellants and have come to the conclusion that there is no
material evidence on record to convict and sentence the
appellants. For the foregoing reasons, we accept the case of
the appellants in the connected appeals. Accordingly, their
appeals are also allowed and conviction and sentence are set
aside and they are directed to be released forthwith if they are
notrequiredinanyother case.
33. The other accused, viz. Gurdeep Singh who has not
filed appeal before this Court challenging the impugned
judgment and who has also been convicted and sentenced to
undergo imprisonment as awarded and imposed by the learned
Additional Sessions Judge and affirmed by the High Court, we,
in exercise of jurisdiction of this Court under Article 142 of the
Constitution, extend the same benefit to him also and he is also
directed to be released forthwith if he is not required in any other
case.
34. For the foregoing reasons, all the appeals are allowed.
35. The bail bonds of the appellant-Tejinder Singh, who is
on bail, are hereby discharged.
R.P.
[2013] 2 S.C.R. 828
827
Appeals allowed.
BHARAT PETROLEUM CORPORATION LTD.

v.
M/S JAGANNATH & CO. & ORS.
(Civil Appeal Nos. 3838-3839 of 2013)
APRIL 12, 2013
[P. SATHASIVAM AND M.Y. EQBAL, JJ.]
PETROLEUM ACT, 1934:
s.20 read with Marketing Discipline Guidelines, 2005 Dealership licence - Cancellation of - Held: Cancellation of
dealership agreement is a serious matter and cannot be taken
lightly - In the instant case, the Guidelines with regard to
taking of samples, numbering them, and sending the same
D to Laboratory in the manner prescribed have not been
followed by Inspecting Officer - Further, provision of s.20 was
also not complied with - High Court, after considering all the
specific claims of contesting respondents, rightly interfered
with the order of termination of dealership agreement/licence
and quashed the same - Appellants are directed to
E
implement the directions given by High Court in impugned
judgment - Marketing Discipline Guidelines, 2005 - Para 2.4.5.
C
Respondent no. 1-firm, a licensed dealer of the

appellant-BPCL, was engaged in selling petroleum
F products from its retail outlet. During an inspection
conducted on 22.8.2005, samples of MS/ULP/SPEED and
HSD were taken, sale of all the products was suspended
and dispensing units and tanks were sealed. By order
dated 18.1.2006, the Territorial Manager of the appellant
G terminated the dealership agreement/licence of the
respondents with immediate effect. The respondent-firm
filed a writ petition before the High Court, which allowed
the same, quashed the order dated 18.1.2006 and directed
the appellant BPCL to restore the dealership.
H
828
BHARAT PETROLEUM CORPORATION LTD. v.

JAGANNATH & CO. & ORS.
829

HELD: 1.1 As per clause (c) of para 2.4.5 of the
Marketing Discipline Guidelines, 2005, the samples so
collected would be sealed and labeled and the labels so
pasted over the containers must have batch number and
other details enumerated therein. As per clause (a) of
para 2.4.5, the Inspecting Officer has to draw three
samples from one tank and all the three containers must
have the same batch numbers. It is the complaint of the
contesting respondents that the Inspecting Officer
allotted three different numbers to the containers
containing samples from the same tank. It is further
pointed out that the numbers shown in the photocopies
of the labels pasted over 7 sealed containers do not corelate with the container numbers purported to have been
sent by the Inspecting Officer to the Laboratory because
all the three containers containing samples from the same
tank had been differently numbered. It is also
demonstrated by the contesting respondents that out of
8 samples so collected, only 5 samples were tested by
the Company Laboratory. Also, no explanation was given
about the other three samples. It is also highlighted that
the Laboratory in its report has also not indicated the
numbers of the containers so tested. In such
circumstances, it is impossible to know which sample
has been tested by the Laboratory. [para 7-8] [835-C-H;
836-A-D]
1.2 In order to ensure fairness in testing the samples,
it has been provided in clause (D) of para 2.5 of the
Guidelines that in case of sample failure, in the event of
request for testing by the dealer, the same shall be tested
at Company's Laboratory in the presence of
representative(s) of the dealer. In the instant case, the
tests were conducted in the company's laboratory itself.
Therefore, in order to satisfy the conscience of the dealer
about the authenticity of the tests so conducted, it has
830
A
[2013] 2 S.C.R.
A been contemplated in the Guidelines that on the request

of the dealer, the test(s) could be conducted in his
presence. This Court has held in Super Highway
Services* that the dealer should be given prior notice
regarding the test. Strict adherence to the said
B requirement is essential. It was further held that the
cancellation of dealership agreement of a party is a
serious business and cannot be taken lightly. [para 10]
[836-G; 837-C-D, F-G]
*Hindustan Petroleum Corporation Ltd. & Ors. vs. M/s
C Super Highway Services & Anr., 2010 (2) SCR 1053 = (2010)
3 SCC 321 - relied on.
1.3 In view of the Dealership Agreement, particularly,
clause 10(k), the Petroleum Act, 1934 is applicable in the
D instant case. In terms of s. 20 of the Act, the contesting
respondents had a right to have fresh samples drawn
and get the same re-tested within seven days of
intimation of the test results. It is the assertion of the
contesting respondents that they moved an application
E before the trial court for fresh sampling/retest of the
products. [para 13] [839-C-E]
1.4 It is also pointed out that it was respondent No.6

who made the inspection, collected the samples, issued
show cause notice and passed an order of cancellation
F of the Dealership Agreement/Licence. By impleading him
as one of the respondents - respondent No.4 in the High
Court - specific allegations were made against him that
he acted mala fidely in cancelling the same and those
assertions cannot be lightly ignored. [para 14] [839-H;
G 840-A-B]
1.5 The High Court, after considering all the specific

claims of the contesting respondents, rightly interfered
with the order of termination of the dealership agreement/
H licence dated 18.01.2006 and quashed the same. In view

JAGANNATH & CO. & ORS.
831
of the same, the appellants are directed to implement the

directions given by the High Court in the impugned
judgment. [para 15] [840-B-C]
832
A
Case Law Reference:

2010 (2) SCR 1053
relied on
para 10

3838-3839 of 2013.
High Court at Allahabad in Civil Misc. Writ Petition No. 26181
of 2006 and order dated 06.11.2009 in Review Petition No.
286203 of 2009.
Sudhir Chandra, Parijat Sinha, Sunil Murarka, Reshmi Rea
Sinha, S.C. Ghosh for the Appellant.
Shanti Bhushan, Harish Chandra, Mehul Milind Gupta,
Sushendra K. Chauhan, Abha Jain, R.P. Gupta, Sunita Rani
Singh, B.K. Prasad, Arvind Kumar Sharma, Gopal Balwant
Sethe for the Respondents.

P. SATHASIVAM, J. 1. Leave granted.
2. These appeals have been filed against the final
judgment and order dated 09.10.2009 passed by the High
Court of Judicature at Allahabad in C.M.W.P. No. 26181 of
2006 and order dated 06.11.2009 in Civil Misc. Review Petition
No. 286203 of 2009. By judgment dated 09.10.2009, the High
Court allowed the writ petition filed by the contesting
respondents herein and quashed the order dated 18.01.2006
passed by the Territory Manager (Retail), Meerut, BPCL
terminating the dealership licence of the outlet of respondent
No.1-Firm and directed restoration of their dealership. Review
petition filed by the appellant herein against the said order was
also dismissed on 06.11.2009 by the High Court.
[2013] 2 S.C.R.
3. Brief facts:
a) The appellant - Bharat Petroleum Corporation Ltd. (in

short "BPCL") is a Government of India Undertaking under the
administrative control of the Ministry of Petroleum & Natural Gas
and is engaged in refining, distributing and selling petroleum
B
products such as Motor Spirit (MS/Petrol), High Speed Diesel
(HSD), Kerosene, Liquified Petroleum Gas (LPG) etc., all over
the country. Respondent No.1-Firm is a licensed dealer of the
BPCL, selling petroleum products from its Retail Outlet (RO)
at Court Road, Saharanpur, U.P. Originally, the Dealership
C Licence was granted, vide agreement dated 24.07.1975.
b) It is the case of the BPCL that on 22.08.2005, a routine
inspection of the said RO was conducted by a team consisting
of Territory Manager, Senior Sales Officer and Senior
D Engineering Officer, Meerut in the presence of one of the
signatories to the said Dealership Licence viz., Shri Alok Kumar
Gupta-Respondent No. 3 herein. During the inspection, certain
irregularities/variations were found for which samples of MS/
ULP, SPEED and HSD were taken and the sale for all the
E products was suspended and the dispensing units and tanks
were sealed after taking meter readings. Thereafter, on
23.08.2005, the seized samples were sent to the Quality
Control Laboratory at Shakurbasti, Delhi for testing. Vide test
reports dated 24.08.2005, the Laboratory confirmed that the
F samples failed to meet the required specifications.
c) Being aggrieved, the respondents instituted a suit being
O.S. No. 695 of 2005 before the Civil Judge (Sr. Division),
Saharanpur for resumption of supply of petroleum products and
for restraining the BPCL from interfering with the sales and
G supplies of petroleum products from their RO along with an
application for temporary injunction.
d) On 02.09.2005, BPCL filed a report with regard to the
samples taken from the outlet. Against the said report, the
H respondent-Firm moved an application raising objection that the

JAGANNATH & CO. & ORS. [P. SATHASIVAM, J.]
833
test reports are not based on the samples taken from the outlet
and prayed for redrawal of the samples in the presence of
independent witnesses.
e) On 07.09.2005, BPCL issued a show cause notice to
the respondents as to why action should not be taken against
them including termination of the dealership. The respondents
put forth their stand by way of a reply dated 21.09.2005. By
order dated 03.10.2005, learned Civil Judge dismissed the
application for issuing of temporary injunction. Vide order dated
18.01.2006, the Territory Manager (Retail), Meerut, terminated
the dealership agreement/licence of the respondents with
immediate effect. Since the dealership licence of the
respondents got terminated and the possession of the outlet
was handed over to M/s Om Filling Station (Respondent No. 8
herein), they filed an application for withdrawal of the suit and
by order dated 22.02.2006, the said suit was withdrawn.
f) Thereafter, the respondent-Firm filed a writ petition being
C.M.W.P. No. 26181 of 2006 before the High Court for
quashing the termination order dated 18.01.2006. By
impugned judgment dated 09.10.2009, the High Court allowed
the petition and quashed the termination order and directed the
BPCL to restore the dealership.
g) Aggrieved by the said order, the BPCL filed a Review
Petition being No. 286203 of 2009 before the High Court. The
High Court, by order dated 06.11.2009, dismissed the said
review petition.
h) Being aggrieved by the judgment dated 09.10.2009 for
restoring the dealership and order dated 06.11.2009
dismissing the review petition, the appellant-BPCL has filed
these appeals by way of special leave.
4. Heard Mr. Sudhir Chandra, learned senior counsel for
the BPCL, Mr. Shanti Bhushan, learned senior counsel for
Respondent No-1, Mr. R.P. Gupta, learned counsel for
834
A
[2013] 2 S.C.R.
A Respondent No. 3 and Mr. Harish Chandra, learned senior

counsel for the Union of India.
5. Before going into the contentions, learned counsel for

the contesting respondents highlighted the background of the
case as a long and chequered history in order to consider the
stand put forth by them. As per the information furnished, it is
seen that 37 years back, vide agreement dated 24.07.1975,
M/s Burmah Shell Oil Storage & Distributing Company (now
BPCL) has entered into a dealership agreement with the
respondent-firm. Since its beginning in the year 1975, not even
a single deficiency has been reported in the matter of
measurement or purity either by the parent company - M/s
Burmah Shell or by the BPCL during the course of regular
inspection carried out every month. It is also pointed out that
only once a notice was issued on 09.03.1995 for lesser sales.
It is also pointed out that on 22.08.2005, one Amit Garg,
impleaded as respondent No.4 in the High Court (respondent
No.6 herein), who was holding the post of Territory Manager
(Retail), Meerut and against whom allegations of mala fide had
been made in paragraph Nos. 11 & 12 of the writ petition, has
conducted regular inspection and found no deficiency in the
measurement. However, he took into custody Sales and
Density Registers and collected 8 samples - two samples of
ULP from ULP 20KL Tank, two samples of ULP from 10KL
Tank, two samples of Speed from Speed Tank, one sample of
HSD from HSD Tank and one sample from barrel. After
collecting the samples, he sealed all the five pumps, viz., two
of ULP, two of Speed and one of HSD. It is pointed out that
although, in total, eight samples were collected but respondent
No.6 herein has filed photocopies of only seven sealed covers
of wooden containers duly signed by the dealer but the
photocopy of one of the two samples of ULP collected from
10KL Tank has not been filed.
6. Mr. Sudhir Chandra, learned senior counsel for BPCL,
after taking us through the impugned order of the High Court,

835
836
submitted that in view of the perversity in the conclusion, the

same has to be interfered with. On the other hand, Mr. Shanti
Bhushan, learned senior counsel for respondent No.1-Firm,
submitted that inasmuch as the BPCL failed to follow the
principles of natural justice contrary to Section 20 of the
Petroleum Act, 1934 and Marketing Discipline Guidelines, 2005
(in short, "the Guidelines"), the High Court was fully justified in
setting aside the order of termination and no interference is
warranted exercising jurisdiction under Article 136 of the
Constitution of India.
7. In view of the above, it is important to consider the

relevant provisions of the Guidelines. As per clause (c) of para
2.4.5 of the Guidelines, the samples so collected would be
sealed and labeled and the labels so pasted over the containers
must have the product name, name of the retail outlet, package
type, sample source, quantity of sample, sampling date, batch
number etc., and should be jointly signed by the dealer or his
representative(s) and the Inspecting Officer. As per clause (a)
of para 2.4.5, the Inspecting Officer has to draw three samples
from one tank- one for the dealer, second for the Company and
the third will be sent to the Laboratory for testing. In order to
ensure that all the three containers are containing samples from
the same tank, all the three containers must have the same batch
numbers duly signed by the dealer and the Inspecting Officer,
otherwise it would be difficult to know as to whether the
container left with the dealer was containing sample from the
same tank as has been sent for testing to the laboratory. It is
the complaint of the contesting respondents that the said officer,
however, allotted three different numbers to the containers
containing samples from the same tank. Moreover, the BPCL
has filed photocopies of the labels pasted over 7 sealed
containers duly signed by the dealer, each containing
aluminium container Nos. 008997, 008950, 008923, 008976,
008949, 008916 and 008952 along with wooden container Nos.
008960, 008957, 008923, 008976, 008949, 008916 and
008952 in which aluminium containers have been placed. It is
[2013] 2 S.C.R.
A further pointed out by the contesting respondents that these

numbers do not co-relate with the container numbers purported
to have been sent by the Inspecting Officer to the Laboratory
because all the three containers containing sample from the
same tanker had been differently numbered.
B
8. It is also demonstrated by the contesting respondents
that out of 8 samples so collected, only 5 samples were tested
by the Company Laboratory. Also, no explanation was given
about the other three samples. It is the claim of the contesting
respondents that the BPCL has filed report in respect of only
C 5 samples and report of 3 samples has either been suppressed
or has not been sent to the Laboratory and only a forwarding
letter has been filed. It is also highlighted that the Laboratory
has also not indicated the numbers of the containers so tested
in its report. In such circumstances, as rightly pointed out, it is
D impossible to know which sample has been tested by the
Laboratory. It has also not been mentioned in the report that
the Laboratory has received the samples in sealed covers and
the seals were opened by them as is the practice in every report
received from forensic laboratory. It is further highlighted that
E the absence of container numbers in the report raises a doubt
as to whether the laboratory has tested the same samples as
had been sealed and counter signed by the dealer or some
other contaminated samples. These important questions were
raised before the writ Court alleging that the samples tested
F were not of those collected from the respondent-Firm.
9. In order to ensure fairness in testing the samples, it has
been provided in clause (D) of para 2.5 of the Guidelines that
in case of sample failure, in the event of request for testing by
the dealer, the same shall be tested at Company's Laboratory
G
in the presence of representative(s) of the dealer. The relevant
extract of clause (D) of para 2.5 reads as under:
"In case of sample failure, in the event of request for testing

by the dealer, the same to be considered on merits by the
State Office/Regional/Zonal General Manager of the

837
concerned Oil Company. If approved by GM, the sample

of retail outlet retained by the dealer alongwith the counter
sample retained with the Field Officer/Oil Company are to
be tested as per the guidelines, preferably in presence of
the Field Officer, RO dealer/representative and
representative of QC department of the Oil Company after
due verification of samples."
10. It is rightly pointed out that the samples were not tested
in any government laboratory and these tests were conducted
in the company's laboratory itself. Therefore, in order to satisfy
the conscience of the dealer about the authenticity of the tests
so conducted, it has been contemplated in the Guidelines that
on the request of the dealer, the test(s) could be conducted in
his presence. In Hindustan Petroleum Corporation Ltd. & Ors.
vs. M/s Super Highway Services & Anr., (2010) 3 SCC 321,
this Court held that the Guidelines being followed by the
Corporation require that the dealer should be given prior notice
regarding the test so that he or his representative also can be
present when the test is conducted. The said requirement is
in accordance with the principles of natural justice and the need
for fairness in the matter of terminating the dealership
agreement and it cannot be made an empty formality. Notice
should be served on the dealer sufficiently early so as to give
him adequate time and opportunity to arrange for his presence
during the test and there should be admissible evidence for
such service of notice on the dealer. Strict adherence to the
above requirement is essential, in view of the possibility of
manipulation in the conduct of the test, if it is conducted behind
the back of the dealer. It was further held that the cancellation
of dealership agreement of a party is a serious business and
cannot be taken lightly. As pointed out in the said decision, in
order to justify the action taken to terminate such an agreement,
the authority concerned has to act fairly and in complete
adherence to the rules/guidelines framed for the said purpose.
11. It is further seen that after sealing of the petrol pump
838
A
[2013] 2 S.C.R.
A in the night of 22.08.2005 by respondent No.6 herein, the

respondent-dealer waited for the result but no copy of the same
was given to them. Since the dealer suspected some foul
game on the part of the said officer, they filed Civil Suit being
O.S. No. 695 of 2005 before the Civil Judge (Senior Division),
B Saharanpur seeking injunction against the interference with the
sale and supply of petroleum products. It is brought to our notice
that immediately upon filing of the said suit, on 31.08.2005, the
BPCL supplied one copy of the report alleging it to be of the
samples collected from the RO. The respondent-Firm did not
C believe the said report and requested for fresh sampling of
products and examination by some independent laboratory. As
the respondent-Firm did not get any response, they filed an
application in the pending suit seeking collection of fresh
samples from the sealed tanks in the presence of Court
Commissioner and its examination by an independent agency.
D
12. In this regard, it is relevant to refer Section 20 of the
Petroleum Act, 1934 which reads as under:
"20. Right to require re-test - (1) The owner of any

petroleum, or his agent, who is dissatisfied with the result
of the test of the petroleum may, within seven days from
the date on which he received intimation of the result of
the test, apply to the officer empowered under Section 14
to have fresh samples of the petroleum taken and tested.
(2) On such application and on payment of the prescribed
fee, fresh samples of the petroleum shall be taken in the
presence of such owner or agent or person deputed by
him, and shall be tested in the presence of such owner or
agent or person deputed by him.
(3) If on such re-test, it appears that the original test was
erroneous the testing officer shall cancel the original
certificate granted under Section 19, shall make out a fresh
certificate, and shall furnish the owner of the petroleum, or
his agent, with a certified copy thereof, free of charge."

839
13. Though the appellant-BPCL protested the said

application contending that the said provision in the Petroleum
Act,1934 is not applicable and the very same objection was
raised by learned senior counsel for the appellant before us, it
is relevant to quote clause 10(k) of the Dealership Agreement
with which the parties are bound is as under:
"10(k) - To abide by the Petroleum Act, 1934 and the rules
framed hereunder for the time being in force as also in
other laws, rules or regulations either of the Government
or any local body as may be in force."
In view of the Dealership Agreement, particularly, clause 10(k)
referred above, the contention of learned senior counsel for the
BPCL is liable to be rejected. In terms of Section 20 of the
Petroleum Act, 1934 the contesting respondents had a right to
have fresh samples drawn and get the same re-tested within
seven days of intimation of the test results. It is the assertion
of the contesting respondents that the test reports were
intimated to them only upon filing of a suit before the trial Court.
After getting the above reports, on 02.09.2005, the contesting
respondents moved an application before the trial Court in the
said suit for fresh sampling/retest of the products. Though an
objection was raised for filing counter statement in the said
application, it is brought to our notice that in spite of several
opportunities given by the Court, no such objection was ever
filed. It was further pointed out by learned counsel for the
contesting respondents that they timely exercised their right
available in law. In view of the application filed by the contesting
respondents on 02.09.2005 and in the light of Section 20 of
the Petroleum Act,1934 as well as the terms of Dealership
Agreement, the objection raised by learned senior counsel for
the BPCL is liable to be rejected.
840
[2013] 2 S.C.R.
A Dealership Agreement/Licence. By impleading him as one of

the respondents - respondent No.4 in the High Court - specific
allegations were made against him that he acted mala fidely
in cancelling the same and those assertions cannot be lightly
ignored.
15. The High Court, after considering all the above specific
claims of the contesting respondents, rightly interfered with the
order of termination of the dealership agreement/licence dated
18.01.2006 and quashed the same. We are in entire
agreement with the said conclusion. In view of the same, the
C appellants are directed to implement the directions given by the
High Court in the impugned judgment dated 09.10.2009 within
a period of four weeks from the date of receipt of this judgment.
16. In the light of the above discussion, the civil appeals
are
dismissed
with no order as to costs.
D
R.P.
14. It is also pointed out that it was respondent No.6 herein

who made the inspection, collected the samples, issued show
cause notice and passed an order of cancellation of the
H
Appeal dismissed.
842
[2013] 2 S.C.R. 841

ASHOK KUMAR JAIN
v.
SUMATI JAIN
APRIL 15, 2013
[G.S. SINGHVI AND SUDHANSU JYOTI

MUKHOPADHAYA, JJ.]
HINDU MARRIAGE ACT, 1955:
C
ss.13 and 23- Petition for divorce by husband on the
grounds of cruelty and desertion - Dismissed by courts below
- Held: Both the courts below have noticed the relevant facts
and have come to a definite conclusion that appellant has not
only been cruel to respondent, but has also brought the
situation to the point where respondent had no option but to
leave the matrimonial home In this situation, as appellant
was trying to take advantage of his own wrong, courts below
rightly disallowed the relief sought for Order of High Court
does not suffer from any infirmity, illegality or perversity Non
interference is called for.
The appellant-husband filed a petition for dissolution
of his marriage u/s 13 of the Hindu Marriage Act, 1955 on
the ground of cruelty and desertion alleged to have been
caused to him by the respondent-wife. The petition was
dismissed. The High Court also dismissed husbands
appeal.

HELD: 1.1. It is not in dispute that even prior to the
present marriage the appellant had married and from that
marriage he has a son. This fact was never revealed by
the appellant to the respondent or to her parents prior to
841
[2013] 2 S.C.R.
A the solemnisation of the present marriage or thereafter.

[para 10] [846-H; 847-A]
1.2. The High Court perused the divorce petition as
was filed by the appellant against his first wife as well as
the divorce petition filed by the appellant against the
B
present respondent and noticed that they are almost
identical in their content. This clearly shows the modus
operandi of the appellant. Taking into consideration this
fact and the fact that even during the pendency of the
appeal the appellant came out with a fresh matrimonial
C advertisement to re-marry for the third time even before
getting divorce from his second wife, the High Court
rightly held that the appellant played fraud upon the
respondent. [para 11] [847-D-F]
1.3. In view of s.23(1)(a) of the Act, if it is found that
the person is taking advantage of his or her wrong or
disability it is open to the court to refuse to grant relief.
In the instant case, both the courts below noticed the
relevant facts and came to a definite conclusion that the
E appellant has not only been cruel to the respondent, but
has also brought the situation to the point where the
respondent had no option but to leave the matrimonial
home. In this situation as the appellant was trying to take
advantage of his own wrong, the courts rightly
F disallowed the relief as was sought for. The order of the
High Court does not suffer from any infirmity, illegality or
perversity and no interference is called for. [para 13-14]
[848-C-F]
D

G 3861 of 2013.
Court of Judicature for Rajasthan, Jaipur Bench, Jaipur in D.B.
Civil Miscellaneous Appeal No. 332 of 1998.
H
ASHOK KUMAR JAIN v. SUMATI JAIN
843
S.K. Keshote, Shashank P., for the Appellant.
844
A
Sushil Kumar Jain, Puneet Jain, Anurag Gohil for the

Respondent.
B
SUDHANSU JYOTI MUKHOPADHAYA, J. 1. Leave
granted.
2. The appellant has preferred this appeal against the
judgment dated 9th March, 2007 passed by the Rajasthan High
Court at Jaipur in DB Civil Miscellaneous Appeal No. 332 of
1998 whereby the Division Bench upheld the judgment dated
13th February, 1998 passed by the Judge, Family Court, Jaipur
dismissing the appellants petition under Section 13 of the
Hindu Marriage Act, 1955 (hereinafter referred to as the Act
for short).
3. The facts of the case are as follows:

The appellant and respondent are married to each other.
The appellant preferred a petition for dissolution of marriage
under Section 13 of the Act before the Judge, Family Court,
Jaipur and brought on record the following facts:
The appellant and the respondent were married according
to Hindu rites on 30th October, 1990 at Jaipur. For the first few
days the respondent stayed at her matrimonial home and
behaved well with family members of the appellant. However,
upon her return from her parental house, after a few days of the
marriage, her behaviour suddenly changed. Appellant claimed
to be the only son of the family having two small sisters and
old father to look after. The aforesaid fact was known to the
respondent even prior to her marriage when appellant informed
the respondents family that since there is no one to look after
his aged father, his wife would have to look after him. But, upon
her return from her parental place, the respondent started
abusing her father-in-law by calling his name and by neglecting
[2013] 2 S.C.R.
A his welfare. She also pressurized the appellant to abandon his

father and shift to another house. Since the appellant refused
to succumb to her pressure, her behaviour became more and
more cruel towards the appellant and his family members.
Thereafter, without any rhyme or reason on 30th March, 1991
B in the absence of appellant and his father, the respondent
packed up her bags, collected her jewellery and left the
matrimonial home. Since that date, she has refused to come
back to the matrimonial home. On 5th December, 1991 she
gave birth to a son, but the appellant was never informed either
by the respondent or by his in-laws. When the appellant came
C
to know about the birth of son, he went to see his wife at the
Hospital, but he found her missing. Thereafter, the appellant
went to his in-laws place but they refused to let him enter inside
the house. Hence, the appellant could neither see his newly born
child nor meet his wife. Furthermore, according to the appellant
D despite sending many persons to reconcile with his wife, the
respondent consistently refused to come back to him. In this
background, the appellant filed a petition under Section 13 of
the Act before the Judge, Family Court, Jaipur for the divorce
on the grounds of cruelty and desertion.
E
4. The respondent, on the other hand, filed written
statement in the Family Court and narrated a totally different
set of facts. She alleged that since from first night, the appellant
came deadly drunk into the room and abused her for bringing
F insufficient dowry. Subsequently, she was shocked to learn that
the appellant was earlier married to a woman known as Shanta
and had a son from the said marriage. According to the
respondent, the aforesaid fact relating to first marriage was not
revealed by the appellant in the matrimonial advertisement given
G by him on 8th April, 1990 in the daily newspaper Rajasthan
Patrika. When she inquired about his first marriage she
realized that the appellant had sought divorce on the exact same
grounds as are pleaded by him in the present case. The
respondent further claimed that once when the appellant had
lost Rs.3,000/- in gambling, he forced her to go to her parental
H

[SUDHANSU JYOTI MUKHOPADHAYA, J.]
845
place and to bring Rs.3,000/- for him. Moreover, when her father
retired from the service and had received retiral benefits of
Rs.1,20,934/-, the appellant pressurized her to convince her
father to part with Rs.50,000/- for him. Whenever, she refused
to talk to her father on this topic, the appellant assaulted her.
She further alleged that despite the fact that she was a woman
from a Jain community, the appellant would force her to cook
meat or to drink with him. Since the respondent believed in nonviolence according to her religious tenance, she could never
convince herself to eat non-vegetarian food and to drink. The
respondent further alleged that finally on 30th March, 1991, the
appellant mercilessly bashed her up and threw her out of the
matrimonial home. She had no option but to return to her
parental place. According to the respondent, when she was
hospitalized and required blood and even after the birth of her
son, the appellant never visited the hospital to see her and the
son and enquired about her welfare. Therefore, according to
the respondent, in fact the cruelty and desertion have been
committed by the appellant and not by her.
5. In the Family Court the appellant examined four
witnesses including himself and submitted a number of
documentary evidence. The respondent also examined four
witnesses including herself and submitted the large number of
documentary evidence. The learned Judge after going through
the oral and documentary evidence and on hearing the parties,
by the judgment dated 13th February, 1998 dismissed the
petition for divorce with cost.
846
A
6. The Appellate Court, as noticed above, dismissed the

appeal. The Appellate Court held that the appellant has not only
been cruel to the respondent, but has also brought the situation
to the point where the respondent had no option but to leave
her matrimonial home. Hence the appellant has committed
constructive desertion of the respondent.
7. Learned counsel appearing on behalf of the appellant

submitted that the cruelty and desertion were committed by the
[2013] 2 S.C.R.
A respondent. He has taken us to the factual matrix narrated

above and submitted that these facts as alleged by the
appellant and supported by evidence clearly shows that the
respondent has neglected her matrimonial duties both towards
the appellant and his family. The respondents persistent
B demand to separate from her father-in-law, depriving the
husband of the matrimonial relationship, refusal to resume
cohabitation with the appellant, all these acts and omissions
amount to cruelty and desertion. The cruelty was constituted to
the extent that it was impossible for the husband to live with
C such a wife. It was also submitted by the learned counsel for
the appellant that the approach of the High Court was incorrect
as it failed to notice that when the appellant and the respondent
have been living separately for about sixteen years, there is no
purpose in compelling both the parties to live together. The High
Court ought to have granted decree of divorce. It was further
D
contended that where the marriage is irretrievably broken down
with no possibility of the appellant and the respondent to live
together again, the best recourse for the High Court to adopt
was to dissolve their marriage and thereby allow the appellant
and the respondent to live remaining part of their life peacefully
E both having already lost valuable part thereof.
8. On the other hand, learned counsel for the respondent
highlighted the facts not disputed by the appellant that the
appellant is in the habit of marrying and remarrying. Even prior
F to the present marriage, the appellant had married one Shanta
from whom he has a son. This fact was never revealed by the
appellant to the respondent or to her parents prior to the
solemnisation of the present marriage. Therefore, while playing
fraud with woman, the appellant wishes to continue solemnising
G number of marriages.
9. We have heard learned counsel for the parties and
perused the record.
10. It is not in dispute that even prior to the present
H marriage the appellant had married one Shanta from whom

[SUDHANSU JYOTI MUKHOPADHAYA, J.]
847
he has a son. The aforesaid fact was never revealed by the

appellant to the respondent or to her parents prior to the
solemnisation of the present marriage or thereafter. Even in the
matrimonial advertisement (Ex. A-11), the appellant had not
revealed the fact that he is already a divorcee. Moreover, the
appellant had written a letter to his father-in-law (Ex. A-10) but
therein also not mentioned that he is a divorcee and a father
of a son. Moreover, even during the pendency of the appeal,
the Court noticed that the appellant has placed a matrimonial
advertisement in the paper as he wishes to enter into a third
marriage.
11. The High Court perused the divorce petition as was
filed by the appellant against his first wife as well as the divorce
petition filed by the appellant against the present respondent
and noticed that they are almost identical in their content. The
same sets of allegations were levelled against the first wife as
levelled against the present respondent. This clearly shows the
modus operandi of the appellant.
Taking into consideration the aforesaid fact and the fact
that even during the pendency of the appeal the appellant came
out with a fresh matrimonial advertisement, the High Court rightly
held that the appellant played fraud with the respondent. The
High Court noticed that surprisingly the subsequent matrimonial
advertisement published by him clearly reveals his intention to
re-marry for the third time even before getting divorce from his
second wife. The High Court observed that this is against the
Section 15 of the Act, whereunder it is stipulated that even after
dissolution of marriage by a decree of divorce, upto certain
period no party to the marriage can marry again.
12. In the present case admittedly marriage has not been
dissolved by any of the Court of Law. On the other hand, the
petition under Section 13 for dissolution of marriage was
dismissed by the Judge, Family Court. In such case there was
no occasion for the appellant to come out with another
advertisement for third marriage
848
A
[2013] 2 S.C.R.
In this background, the High Court rightly held that the

aforesaid acts during the pendency of the appeal clearly reveals
appellants psychology of disobeying the law and of entering
into a number of marriages.
13. Under sub-clause (a) of clause (1) of Section 23, in

any proceeding under the Act, if the Court is satisfied that any
of the grounds for granting relief exists and the petitioner is not
in any way taking advantage of his or her own wrong or
disability for the purpose of such relief, the Court shall grant
relief under Section 23 (1) (a) of the Act. Therefore, it is always
C
open to the Court to examine whether the person seeking
divorce is not in any way taking advantage of his or her own
wrong or disability for the purpose of such relief. On such
examination if it is so found that the person is taking advantage
of his or her wrong or disability it is open to the Court to refuse
D to grant relief.
14. In the present case, both the Courts noticed the relevant
facts and came to a definite conclusion that the appellant has
not only been cruel to the respondent, but has also brought the
E situation to the point where the respondent had no option but
to leave the matrimonial home. In this situation as the appellant
was trying to take advantage of his own wrong, the Courts
disallowed the relief as was sought for. We find that the order
to that effect of the High Court does not suffer any infirmity,
F illegality or perversity; no interference is called for.
15. In the result and in absence of any merit, the appeal is
dismissed but there shall be no separate orders as to costs.
R.P.
Appeal dismissed.
850
[2013] 2 S.C.R. 849

M/S TATA SKY LTD.
v.
STATE OF M.P. AND OTHERS
(Civil Appeal No. 3882 of 2013 etc.)
APRIL 16, 2013
[AFTAB ALAM AND R.M. LODHA, JJ.]

MADHYA PRADESH ENTERTAINMENT DUTY AND
ADVERTISEMENTS TAX ACT, 1936:
C
ss.2(a),2(b),2(d)(iv), 3 and 4 Levy of entertainment duty
on Direct to Home (DTH) entertainment service for the period
5-5-2008 to 1-4-2011 Held: DTH is not covered by
provisions of s.3 read with ss.2(a), 2(b) and 2(d) Further,
neither the provision of s.4(1) nor any of modes provided u/
s.4(2) can be made applicable for collection of duty on DTH
Therefore, 1936 Act cannot be extended to cover DTH
operations being carried out by appellants Indian Telegraph
Act, 1885 s. 4 Indian Telegraphy Act, 1933 Madhya
Pradesh Entertainment Duty and Advertisements Tax Rules
1942.
Administrative Law
Delegated legislation Notification Held: Notification
issued in exercise of powers under the Act cannot amend the
Act In the context of instant case, since no duty could be
levied on DTH operation under 1936 Act prior to issuance of
notification dated 5-5-2008, duty can not be levied under the
said Act after issuance of notification - Madhya Pradesh
Entertainment Duty and Advertisements Tax Act, 1936.
On May 5, 2008, the State Government of Madhya

Pradesh, in exercise of powers conferred u/s.3(1) of the
Madhya Pradesh Entertainment Duty and Advertisements
849
[2013] 2 S.C.R.
A Tax Act, 1936, issued a gazette notification fixing 20%

entertainment duty in respect of every payment made for
admission to an entertainment other than cinemas,
videos cassette recorders and cable service.
Consequently, a demand notice dated June 10, 2009 was
B issued by the Excise Commissioner to the appellant
raising a demand of Entertainment Duty on Direct to
Home Entertainment Service. Subsequently, a number of
notices were issued. The appellant filed a writ petition,
challenging the demand and collection of entertainment
C duty u/ s.3(1) of the 1936 Act. It was the case of the
appellant that on 24-3-2006, it got a licence from the
Government of India u/s 4 of the Indian Telegraph Act,
1885 and Indian Telegraphy Act, 1933 to establish,
maintain and operate DTH platform for a period of 10
years on the terms and conditions stipulated in the
D
licence agreement. The writ petition was dismissed by
the High Court.
In the instant appeals, the questions for
consideration before the Court were whether the
E provisions of the 1936 Act have the necessary expanse
and flexibility to include DTH as an entertainment
chargeable to tax, and whether the notification dated
May 5, 2008 in any manner extended the scope of
chargeability under the 1936 Act.
F
Allowing the appeals, the Court
HELD: 1.1. On a careful examination of the Madhya
Pradesh Entertainment Duty And Advertisements Tax
Act, 1936 as a whole, and more particularly, on a conjoint
G reading of clauses (a) [Admission to an entertainment],
(b) [Entertainment] and (d) [Payment of admission] of
s.2 along with s.3 creating the charge and s.4 providing
the collection machinery, it becomes clear that the
provisions of 1936 Act are applicable only to placeH
TATA SKY LTD. v. STATE OF M.P.
851
related entertainment and cover an entertainment which

takes place in a specified physical location to which
persons are admitted on payment of some charge as
defined under clause (d) of s. 2. The legislative history
and the amendments introduced in the 1936 Act also
show that it was how the scheme of the 1936 Act was
viewed by the State itself. The provisions of the 1936 Act
were inadequate to bring shows by video cassette
recorder or video cassette and player cable T.V.
operations within the taxing net and, therefore, ss. 3-A
and s. 3-B were inserted respectively with effect from May
1, 1999 and April 1, 2001. In this regard, it is also very
important to note that both in the case of shows by video
cassette recorder or video cassette and player, cable T.V.
operations, the collection machinery is in-built and
provided within the respective provisions of s.3-A and s.
3-B. and in those two cases the collection of duty does
not take place u/s. 4 of the 1936 Act. [para 35] [866-F-H;
867-A-C]
1.2. The reliance placed on behalf of the State on
Sub-clause(iv) of clause (d) of s.2 is untenable for more
reasons than one: First, s. 2(d)(iv) is only the measure of
tax and it does not create the charge which is created by
s. 3. The question of going to the measure of the tax
would arise only if it is found that the charge of tax is
attracted. Under s.3 read with s. 2(d) and s. 2(a), the
charge or levy of tax is attracted only if an entertainment
takes place in a specified place or locations and persons
are admitted to the place on payment of a charge to the
proprietor providing the entertainment. In the instant
case, as DTH operation is not a place-related
entertainment, it is not covered by the charging s. 3 read
with ss. 2(a) and 2(b) of the 1936 Act. Consequently, the
question of going to s. 2(d)(iv) does not arise. Moreover,
even if s. 2(d)(iv) is to be read as an extension of s. 3 and,
thus, as a part of the charge, it does not make any
852
[2013] 2 S.C.R.
A difference at all because s. 2(d)(iv) refers to

entertainment which relates back to s. 2(b) and finally
to s. 2(a). Thus, DTH is not covered by the provisions of
s. 3 read with ss. 2(a), 2(b) and 2(d) of the 1936 Act. [para
36-38] [867-C-E-H; 868-A-B]
1.3. The issue gets further settled on reference being

made to the mechanism of collection of the charge as
provided u/s. 4 of the 1936 Act. Section 4(1) mandates that
no person shall be admitted to any entertainment other
than entertainment by V.C.R. except with a ticket stamped
C with an impressed, embossed, engraved or adhesive
stamp issued by the State Government of nominal value
equal to the duty payable u/s 3; sub-s. (2) of s. 4 provides
for different modes specified thereunder for payment of
the amount of duty due on the entertainment. Neither the
D provision of s.4(1) nor any of the modes provided u/s. 4(2)
can be made applicable for collection of duty on DTH
operation. Further, a perusal of the Madhya Pradesh
Entertainment Duty and Advertisements Tax Rules 1942
makes it absolutely clear that the collection mechanism
E under the 1936 Act is based on revenue stamps stuck to
the tickets issued by the proprietor for entry to the
specified place where entertainment is held. The
machinery for collection of duty provided under the 1936
Act has no application to DTH. It is well settled that if the
F collection machinery provided under the Act is such that
it cannot be applied to an event, it follows that the event
is beyond the charge created by the taxing statute. [para
38-39] [868-B-G]
Commissioner of Income Tax v. B.C. Srinivasa Setty
G 1981 (2) SCR 938 = (1981) 2 SCC 460, Commissioner of
Income-Tax Ernakulam, Kerala v. Official Liquidator, Palai
Central Bank Ltd.1985 (1) SCR 971 = (1985) 1 SCC 45;
PNB Finance Limited v. Commissioner of Income Tax I, New
Delhi 2008 (15) SCR 556 = (2008) 13 SCC 94 - relied on.
H
TATA SKY LTD. v. STATE OF M.P.
853
1.5. Therefore, the 1936 Act cannot be extended to

cover DTH operations being carried out by the appellants.
[para 40] [869-A]
2. As regards, the notification dated 5-5-2008, it is
elementary that a notification issued in exercise of
powers under the Act cannot amend the Act. Moreover,
the notification merely prescribes the rate of entertainment
duty at 20% in respect of every payment for admission
to an entertainment other than cinema, video cassette
recorder and cable service. The notification cannot
enlarge either the charging section or amend the
provision of collection u/s. 4 of the Act read with the 1942
Rules. It is, therefore, clear that the notification in no way
improves the case of the State. If no duty could be levied
on DTH operation under the 1936 Act prior to the
issuance of the notification dated May 5, 2008, duty can
not be levied under the said Act after the issuance of the
notification. [para 41] [869-B-D]
854
A
relied on
para 39
1985 (1) SCR 971
relied on
para 39
2008 (15) SCR 556
relied on
para 39

3882 of 2013.
Court of Madhya Pradesh at Jabalpur in Writ Petition No. 10148
of 2009.
[2013] 2 S.C.R.
A Dushyant Dave, D.K. Singh, Pradeep Shukla, Sarvesh Singh

Baghel, Abhijit Sengupta, Aniruddha P. Mayee Charudatta
Mahindrakar, G. Umapathy (for Rakesh K. Sharma), Pankaj
Bhagat, Dr. Sushil Balwada, Vivek Sarin, Surbhi Mehta, Vibha
Datta Makhija, Aniruddha Deshmukh, Yashvardhan Roy,
B Rishabh Sancheti, Varun Chopra, Sumeer Sodhi, B.S. Banthia
for the appearing parties.
Case Law Reference

1981 (2) SCR 938
AFTAB ALAM, J. 1. Leave granted in all the special

C leave petitions.
2. All these appeals relate to the demand of entertainment
tax raised by the Government of Madhya Pradesh under the
Madhya Pradesh Entertainment Duty and Advertisements Tax
D Act, 1936 (hereinafter referred to as the 1936 Act) on DTH
(direct to home) broadcast provided by the appellants to their
respective customers on payment of subscriptions. The
appellants in all the appeals challenged the demand by the
State Government by filing writ petitions before the Madhya
Pradesh High Court. The High Court dismissed the writ
E
petitions, upholding the demand by the State Government by
the judgment and order dated August 20, 2010. That judgment
was rendered in a batch of three writ petitions, taking Writ
Petition No. 10148 of 2009, filed on behalf of Tata Sky Limited
(appellant in the appeal arising from SLP (C) No.2752 of 2011)
F as the lead case. The rest of the writ petitions were dismissed
following the judgment dated August 20, 2010.
3. For the sake of convenience, we too have taken the facts

from civil appeal arising out of special leave petition (civil)
G No.27595 of 2010.
4. The appellant operates under a licence from the

Government of India under section 4 of the Indian Telegraph Act,
1885 and the Indian Telegraphy Act, 1933. It is, however, the
case of the appellant that DTH broadcast is a service and it
WITH
C.A. Nos. 3888, 3889, 3890, 3891 & 3892 of 2013.
Vivek Tankha, ASG, S. Ganesh, Gopal Subramanium,
H
TATA SKY LTD. v. STATE OF M.P. [AFTAB ALAM, J.] 855

is chargeable to service tax. As a matter of fact, one of the
several grounds on which the demand of entertainment tax by
the State Government on DTH broadcasting is challenged by
the appellant is that DTH broadcasting is one of the notified
services under the Finance Act, 1994 and is chargeable to
service tax by the Central Government. In that regard, it is stated
on behalf of the appellant, that in 1991 the Government of India
appointed a Tax Reform Committee under the Chairmanship
of Dr. Chelliah. The recommendations made by the Tax Reform
Committee were accepted and the service tax was introduced
in the budget for the year 1994-1995 through the Finance Act,
1994 under the residuary entry 97 of List 1 of the 7th Schedule
of the Constitution of India. Under the Act, service tax is levied
on the notified services provided or to be provided.
5. For the purpose of levy of service tax on broadcasting,
the expression broadcasting has been defined specifically
under section 65(15) of the Finance Act. The broadcasting
services were brought within the purview of the service tax under
section 65(105)(zk) of the Finance Act, 1994 as amended with
effect from July 16, 2011. Later on, DTH service was brought
within the purview of the service tax with effect from June 16,
2006.
6. Under section 67 of the Finance Act, the value of taxable
service is the gross amount charged by the service provider
for provision of service.
7. On March 24, 2006, the appellant got a licence from the
Government of India under section 4 of the Indian Telegraph Act,
1885 and the Indian Telegraphy Act, 1933 to establish, maintain
and operate DTH platform for a period of 10 years on the terms
and conditions stipulated in the licence agreement. The
appellant paid Rs.10 crores as licence fee and furnished a bank
guarantee for the sum of Rs.40 crores that is to remain valid
for the entire duration of the licence. In terms of the licence the
appellant is further required to pay an annual fee equivalent to
10 percent of its gross revenue as reflected in the audited
856
A
[2013] 2 S.C.R.
A accounts of the company for every financial year within one

month from the end of the financial year. The appellant is also
required to pay, in addition to licence fee, royalty for spectrum
use as prescribed by the Wireless Planning and Coordination
Authority (WPC) under the Department of Telecommunications.
B
8. The licence granted by the Central Government is for
the whole of India and the appellant is not obliged to take any
permission or any other licence from any other authority for
making DTH broadcast.
C
9. In August 2006, the appellant launched its operations

all over India, including the State of Madhya Pradesh. The
appellant is having a single broadcasting centre at Chhattarpur,
Delhi. This centre downlinks the signals from satellite and then
uplinks those signals to the designated transponders for their
D transmission in Ku band. These signals are received by the
dish antenna installed at the subscribers premises. The TV
signals transmitted from the broadcasting centre at Chhattarpur,
Delhi, are in encrypted format and those are decrypted/
decoded by the set top boxes and the viewing card inside the
E set top box supplied by the appellant to its subscribers. The
subscribers are required to pay certain charges for viewing
DTH broadcasts by the appellant on their TV sets.
10. The appellant does not use any infrastructure from the
State for its DTH broadcasts.
11. On May 5, 2008, the State Government in exercise of

powers conferred under section 3(1) of the 1936 Act, issued a
gazette notification fixing 20 percent entertainment duty in
respect of every payment made for admission to an
G entertainment other than cinemas, videos cassette recorders
and cable service. As the aforesaid notification forms the basis
of the demand raised by the State Government it is useful to
reproduce it here in full:H
No. (63) B-5-9-2006-2-V- In exercise of the powers

conferred by sub section (1) of Section 3 of the Madhya
Pradesh Entertainment Duty and Advertisements Tax Act
1936 (No 30 of 1936) the State Government hereby
prescribed the rate of Entertainment Duty at 20 percent in
respect of every payment for admission to an
Entertainment other than Cinema, Video Cassette
Recorder and Cable service.
858
A
[2013] 2 S.C.R.
entertainments including entertainment provided

through registered consumers through DTH on
monthly subscription basis is included. In the
aforesaid payment by the consumers,
entertainment duty @ 20% is liable to be paid in
advance in the treasury of the Government.
This notification shall come into force with effect from the
date of publication.
By order and in the name of the Governor of Madhya
Pradesh.
12. Following the notification dated May 5, 2008, a
demand notice dated June 10, 2009 was issued by the Excise
Commissioner Madhya Pradesh, Gwalior, to the appellant. The
contents of the notice, insofar as relevant for the present, are
as under:
S.No.7-Ent./2009-10/173
Gwalior Date 10.06.2009
To,
Tata Sky,
Sub: Levy of Entertainment Duty on Direct to Home

Entertainment Service
You are providing entertainment in the State of Madhya
Pradesh by Direct to Home (DTH) to registered
consumers on monthly payment basis. Whereas:
(1)
Under section 3(1) of the Madhya Pradesh

Entertainment Duty and advertisements Tax Act,
1936 except cinema hall, videos and cable in all
13. The appellant was directed to provide the information

as asked for in the notice failing which, the notice declared, an
C ex parte assessment would be made of the entertainment tax
payable by it.
14. The appellant replied to the notice by its letter of July
22, 2009 stating that under the provisions of the 1936 Act, there
D is no specific entry with respect to DTH broadcasting and in
absence of such an entry, the provisions of the Act are not
applicable to DTH broadcasting and, therefore, the notice was
illegal and without jurisdiction. The appellant also referred to a
decision of the Uttarakhand High Court in a case relating to a
E similar demand raised by the Uttarakhand Government and the
order of this Court in the special leave petition filed by the
Uttrakhand Government against the judgment of the High Court.
15. On August 1, 2009, the State of Madhya Pradesh
passed the Madhya Pradesh Entertainment Duty and
F
Advertisements Tax (Amendment) Act, 2009. By the
Amendment Act, the failure to produce accounts and
documents as required by the Excise Commissioner or any
officer authorized by the State Government was made a penal
offence. The Amendment Act, however, did not introduce any
G provision in the Parent Act with respect to levy of entertainment
duty on DTH broadcasting.
16. On August 18, 2009, the Excise Commissioner
Madhya Pradesh wrote to the Deputy Commissioner Excise,

Flying Squad, Gwalior Division, Gwalior, telling him that
entertainment duty at the rate of 20 percent was payable on
subscription amounts received by the DTH entertainment
service provider and directing to ensure the realization of
entertainment duty from DTH entertainment service providers.
The direction of the Excise Commissioner was followed by a
number of notices given to the appellant and on October 1,
2009, the Vice President (Operation) and Area Operation
(Manager) of the appellant company were arrested and later
released on bail for non-compliance with the provisions of
section 5(E) of the 1936 Act.
17. On October 3, 2009, the appellant filed a writ petition,
being Writ Petition No.10148 of 2009, challenging the demand
and collection of entertainment duty at the rate of 20 percent
under section 3(1) of the 1936 Act. The writ petition was
eventually dismissed by the High Court by its judgment and
order dated August 20, 2010 and the matter is now brought to
this Court.
18. Before proceeding further, it needs to be stated that
the controversy in all the appeals relates to the demand and
realization of entertainment tax under the 1936 Act, which
means for the period between the commencement of operation
by the appellant in the year 2006 and March 31, 2011, i.e., the
day prior to the coming into force of the new Act, called the
Madhya Pradesh Vilasita, Manoranjan, Amod Evam
Vigyapan Kar Adiniyam, 2011. Further, in course of hearing
of the appeals Mr. Dave learned counsel appearing for the
State of Madhya Pradesh submitted that he proposed to defend
the demand and realization of the impugned tax only for the
period between May 5, 2008, the date of the notification issued
under section 3(1) of the 1936 Act and the coming into force
of the new Act on April 1, 2011. It is, therefore, made clear that
this judgment deals with the question of levy of entertainment
tax on DTH broadcast under the 1936 Act for the period
between the issuance of the notification (May 5, 2008) and the
860
A
[2013] 2 S.C.R.
A coming into force of the new Act (April 1, 2011). The judgment
is not concerned with the legal position arising after the new
Act came into force.
19. We now propose to examine whether on the basis of
the provisions of the 1936 Act, it is permissible or possible for
B
the State of Madhya Pradesh to levy on what in the lexicon of
broadcasting is called direct-to-home or in short DTH. Here it
needs to be clearly understood that the issue in this case is
not whether direct to home broadcast is entertainment in the
broader sense. Entry 62 of List 2 of Schedule 7 to the
C constitution may indeed be wide enough to include DTH as yet
another form of entertainment but that is not the issue rising for
consideration. The issue under consideration is whether the
provisions of the 1936 Act have the necessary expanse and
flexibility to include DTH as an entertainment chargeable to
D tax and whether the notification dated May 5, 2008 in any
manner extended the scope of chargeability under the 1936
Act.
20. The preamble to the 1936 Act reads as under:-
An Act to impose a duty in respect of admission to

entertainments and a tax in respect of certain forms of
advertisement exhibited at such entertainments in Madhya
Pradesh.
21. Section 2 of the 1936 Act contains the definition
clauses and clause (a) defines the expression admission to
an entertainment:
2(a) admission to an entertainment includes admission
to any place in which the entertainment is held;
22. Clause (aaaa) was inserted in the Act with effect
from May 1, 1999 to define Cable Operator, Cable Service,
Cable Television Network and Subscriber.
2(aaaa) Cable Operator, Cable Service, Cable
862
Television Network and Subscriber shall have the same A

meaning as assigned to them in the Cable Television
Network (Regulation) Act, 1995 (No.7 of 1995)
23. Clause (b) defines entertainment:

2(b) Entertainment includes any exhibition, performance, B
amusement, game or sport to which persons are admitted
for payment;
24. Clause (c) defines entertainment duty:

2(c) entertainments duty means a duty levied under
section 3;
[2013] 2 S.C.R.
whatever, connected with an entertainment, which a person

is, required to make in any form as a condition of
attending, or continuing to attend the entertainment, either
in addition to the payment, if any, for admission to the
entertainment or without any such payment for admission;
(vi) any payment, made by a person, who having been
admitted to one part of a place of entertainment is
subsequently admitted to another part thereof, for
admission to which a payment involving tax or more tax is
required;
Explanation - I. Any subscription raised or donation
collected in connection with an entertainment in any form
shall be deemed to be payment for admission;
25. Clause (d) defines the expression Payment for

admission as under:
D
(ii) any payment for a programme or synopsis of an E

entertainment;
2(d) Payment for admission includes

(i) any payment for seats or other accommodation in any
form in a place of entertainment;
(iii) any payment made for the loan or use of any instrument
or contrivance which enables a person to get a normal or
better view or hearing or enjoyment of the entertainment, F
which without the aid of such instrument or contrivance such
person would not get;
(iv) any payment made by a person by way of
contribution or subscription or installation and
connection charges or any other charges, by G
whatever name called, for providing access to any
entertainment, whether for a specified period or on a
continuous basis;
(v) any payment, by whatever name called for any purpose H
[Explanation - II. Where entertainment is provided as part

of any service by any person, whether forming an integral
part of such service or otherwise the charges received by
such person for providing the service shall be deemed to
include charges for providing entertainment or access to
entertainment also];
26. Clause (f) defines proprietor:
2(f) proprietor in relation to any entertainment, includes

any person responsible for or for the time being in-charge
of the management thereof;
27. Video Cassette Recorder and Video Cassette
Player are defined in clauses (g) and (h) of section 2.
28. The charging provision is contained in Section 3 of the

G 1936 Act which, insofar as relevant for the present, is extracted
hereunder:
Entertainment Duty payable by proprietor of an

entertainment - (1) Every proprietor of an entertainment
other than proprietor of an entertainment by Video

Cassette Recorder (hereinafter referred to as V.C.R.) or
Video Cassette Player (hereinafter referred to as V.C.P.)
or a Cable Operator, shall in respect of every payment for
admission to the entertainment pay to the State
Government a duty at the rate as prescribed by the State
Government not exceeding seventy five per centum thereof:
864
A
Provided further
C
Explanation
(2) xxx
(3) Where the payment for admission to an entertainment D
is made by means of a lump sum paid as a subscription
or contribution to any person, or for a season ticket or for
the right of admission to a series of entertainments or to
any entertainment during a certain period of time, or for any
privilege, right, facility or thing combined with the right of
E
admission without further payment or at a reduced charge,
the entertainments duty shall be paid on the amount of such
lump sum:
Provided that where the State Government is of opinion
that the payment of a lump sum represents payment for
other privileges, rights, or purposes besides the admission
to an entertainment, or covers admission to the
entertainment during any period for which the duty has not
been in operation, the duty shall be charged on such an
amount as appears to the State Government to represent
the right of admission to entertainment in respect of which
the entertainment duty is payable.
[2013] 2 S.C.R.
(i) xxx
(ii) xxx
Provided
Provided also .
29. Section 3-A deals with entertainment duty payable by

proprietor of V.C.R. or V.C.P. and this provision was inserted
B in the Act with effect from May 1, 1999.
30. Section 3-B was inserted in the 1936 Act with effect
from April 1, 2001. Sub-section (1) of section 3-B deals with
entertainment duty payable by cable operator and it makes a
C cable operator, providing access to entertainments through
cable service to subscribers of such service, not being owner
or occupants of rooms of hotel or lodging house, liable to pay
duty at the rate of twenty rupees per month per subscriber in
urban and cantonment areas. Sub-section (2) of section 3-B
D makes every proprietor of hotel or lodging house, providing
access to entertainments in the rooms of a hotel or lodging
house through the cable service of his own or obtained through
any cable operator liable to pay a consolidated amount of duty
per month determined on the basis of number of rooms.
E
31. Section 3-C deals with levy of Advertisement Tax.

32. The machinery for effectuating the charge created by
section 3 is provided under section 4 of the 1936 Act which,
insofar as relevant for the present, is quoted below:
4. Method of levy (1) Save as otherwise provided by this

Act, no person shall be admitted to any entertainment other
than entertainment by V.C.R., except with a ticket
stamped with an impressed, embossed, engraved or
adhesive stamp, (not before used) issued by the
State Government, of nominal value equal to the duty
payable under section 3.
(1A) Omitted.
(4) xxx
H
(2) The State Government may, on the application of a

proprietor of any entertainment other than entertainment by A
V.C.R. in respect of which entertainments duty is payable
under section 3, allow such proprietor to pay by one of the
modes specified hereunder as it may think fit, in such
manner and subject to such conditions as may be
prescribed, the amount of the duty due, namely:B
(a)
by a consolidated payment of such percentage as

determined by the State Government of the gross
sum received by the proprietor on account of
payments for admission to the entertainment and
C
on account of the duty to be fixed by the State
Government;
(b)
in accordance with returns of the payments for

admission to the entertainment and on account of
D
the duty;
(c)
in accordance with the results recorded by any

mechanical contrivance which automatically
registers the number of persons admitted;
(d)
xxx
(e)
xxx
(f)
xxx
(3)
xxx
(4)
xxx
33. Section 4-B imposes restriction on admission without

payment or at concession rates and provides as under:
866
4-B Restriction on admission without payment or at

concession rates. No proprietor shall admit any person
to an entertainment other than entertainment by V.C.R.
without payment for admission thereto or at concession
H
[2013] 2 S.C.R.
rates unless the entertainments duty payable in respect

thereof or on the full value of the ticket for the class to which
such person is admitted has been paid.
Provided that nothing in this section shall apply in
respect of admission at concessional rates
(i)
to such class of persons; and
(ii)
to such entertainment or class of entertainments;
As the State Government may, by notification, specify.
34. Section 4-C gives the power to impose penalty and

section 5 deals with penalties. 5-A deals with composition of
offences and section 5-B deals with suspension or revocation
of licence for entertainment. Section 8 provides the rule making
D powers. Section 9 gives the power of entry and inspection and
section 9-A makes production and inspection of accounts and
documents obligatory. Section 10 deals with recovery of arrears
of entertainment duty. Section 10 provides protection to
persons acting in good faith and bars any suit or prosecution
E or other proceedings against officers and servant of the
Government. Section 11 deals with delegation of powers and
section 12 bars imposition of entertainment duty by any local
authority.
35. On a careful examination of the 1936 Act as a whole,
and more particularly on a conjoint reading of clauses (a)
[Admission to an entertainment], (b) [Entertainment] and (d)
[Payment of admission] along with section 3 creating the
charge and section 4 providing the collection machinery, we find
ourselves in agreement with the submission made on behalf
G of the appellants that the provisions of 1936 Act are applicable
only to place-related entertainment. In other words, the
provisions of the 1936 Act cover an entertainment which takes
place in a specified physical location to which persons are
admitted on payment of some charge as defined under clause
H (d) of section 2 of the 1936 Act. The legislative history and the
F

amendments introduced in the 1936 Act also show that it was
how the scheme of the 1936 Act was viewed by the State itself.
It was earlier found that the provisions of the 1936 Act were
inadequate to bring shows by video cassette recorder or video
cassette and player cable T.V. operations within the taxing net
and hence, the legislature considered it necessary to amend
the 1936 Act and to insert section 3-A and section 3-B
respectively with effect from May 1, 1999 and April 1, 2001. In
this regard, it is also very important to note that both in the case
of shows by video cassette recorder or video cassette and
player, cable T.V. operations, the collection machinery is in-built
and provided within the respective provisions of section 3-A
and section 3-B. and in those two cases the collection of duty
does not take place under section 4 of the 1936 Act.
36. On behalf of the State the imposition of levy on DTH
was sought to be justified on the basis of sub-clause(4) of
clause (d) of section 2 which reads as under:
(iv) any payment made by a person by way of contribution
or subscription or installation and connection charges or
any other charges, by whatever name called, for providing
access to any entertainment, whether for a specified
period or on a continuous basis;
37. In our view, the submission is untenable for more
reasons than one. First, section 2(d)(iv) is only the measure of
tax and it does not create the charge which is created by
section 3. The question of going to the measure of the tax would
arise only if it is found that the charge of tax is attracted. Under
section 3 read with section 2(d) and section 2(a), the charge
or levy of tax is attracted only if an entertainment takes place
in a specified place or locations and persons are admitted to
the place on payment of a charge to the proprietor providing
the entertainment. In the present case, as DTH operation is not
a place-related entertainment, it is not covered by the charging
section 3 read with section 2(a) and 2(b) of the 1936 Act.
Consequently, the question of going to section 2(d)(iv) does not
868
A
[2013] 2 S.C.R.
arise. Moreover, even if section 2(d)(iv) is to be read as an

extension of section 3 and, thus, as a part of the charge, it does
not make any difference at all because section 2(d)(iv) refers
to entertainment which takes us back to section 2(b) and finally
to section 2(a).
38. We have held that DTH is not covered by the provisions

of section 3 read with section 2(a), 2(b) and 2(d) of the 1936
Act. The issue gets further settled on reference being made to
the mechanism of collection of the charge as provided under
section 4 of the 1936 Act. Section 4(1) mandates that no
C person shall be admitted to any entertainment other than
entertainment by V.C.R. except with a ticket stamped with an
impressed, embossed, engraved or adhesive stamp issued by
the State Government of nominal value equal to the duty payable
under section 3; sub-section (2) of section 4 provides for
D different modes specified thereunder for payment of the amount
of duty due on the entertainment. Neither the provision of section
4(1) nor any of the modes provided under section 4(2) can be
made applicable for collection of duty on DTH operation.
Further, it is noted above that section 8 provides rule making
E powers. In exercise of the powers under that provision the
Madhya Pradesh Entertainment Duty and Advertisement Tax
Rules 1942 were framed. A perusal of the Rules makes it
absolutely clear that the collection mechanism under the 1936
Act is based on revenue stamps stuck to the tickets issued by
F the proprietor for entry to the specified place where
entertainment is held.
39. The machinery for collection of duty provided under the
1936 Act has no application to DTH. It is well settled that if the
collection machinery provided under the Act is such that it
G cannot be applied to an event, it follows that the event is beyond
the charge created by the taxing statute. See: Commissioner
of Income Tax v. B.C. Srinivasa Setty, (1981) 2 SCC 460,
Commissioner of Income-Tax Ernakulam, Kerala v. Official
Liquidator, Palai Central Bank Ltd.. (1985) 1 SCC 45 (pages
H 50-51), PNB Finance Limited v. Commissioner of Income Tax
[2013] 2 S.C.R. 870

I, New Delhi (2008) 13 SCC 94 (paragraphs 21 and 24 pages
100 to 101).
40. In light of the discussions made above, we are clearly
of the view that the 1936 Act cannot be extended to cover DTH
operations being carried out by the appellants.
41. Coming now to the notification dated May 5, 2008, it
is elementary that a notification issued in exercise of powers
under the Act cannot amend the Act. Moreover, the notification
merely prescribes the rate of entertainment duty at 20 percent
in respect of every payment for admission to an entertainment
other than cinema, video cassette recorder and cable service.
The notification cannot enlarge either the charging section or
amend the provision of collection under section 4 of the Act
read with the 1942 Rules. It is, therefore, clear that the
notification in no way improves the case of the State. If no duty
could be levied on DTH operation under the 1936 Act prior to
the issuance of the notification dated May 5, 2008 as fairly
stated by Mr. Dave, we fail to see how duty can be levied under
the 1936 Act after the issuance of the notification.
42. We have held that the 1936 Act does not cover DTH
operations on an interpretation of the provisions of 1936 Act
itself. We, therefore, see no need to refer to the cases relied
upon by the appellants relating to demand of duty on DTH
operations under the Uttar Pradesh Entertainments and Betting
Tax Act, 1979 and under the Bihar Entertainment Tax Act.
43. Further, as we have held that the 1936 Act does not
cover the DTH operations we need not go to the other
submissions made on behalf of the appellants inter alia
regarding the legislative competence of the statute legislature
to impose tax on DTH operation as it was a notified service
chargeable to service tax under the Finance Act, 1994.
Appeals allowed.
APRIL 17, 2013

Penal Code, 1860 - s.302 - Death of 22 year old married

C woman within 2 months of marriage due to burn injuries Dying declaration given by the victim alleging that she was
subjected to cruelty for dowry and that her mother-in-law
(appellant) sprinkled kerosene oil on her and burnt her Conviction of appellant u/s.302 alongwith life imprisonment D Held: The victim got injured in her in-laws house while the
appellant was present - In her dying declaration, the victim had
disclosed that her sister-in-law was also present there but did
not make any allegation, whatsoever, against her - Thus, the
veracity of her dying declaration cannot be doubted and there
E is no cogent reason to interfere with the conviction of the
appellant - However, the appellant has already served 14
years and 6 months of imprisonment in jail and her case has
not been considered by the State for premature release u/
s.432 CrPC - Authorities concerned to consider the case of
F the appellant for premature release strictly in accordance with
law - Evidence Act, 1872 - s.113B - Code of Criminal
Procedure, 1973 - s.432.
No. 1039 of 2008.
G
High Court of Judicature at Allahabad in Criminal Appeal No.
3443 of 2000.
44. In the result, the appeals are allowed but with no order
as to costs.
R.P.
ANNAPURNA
V.
STATE OF U.P.
870
ANNAPURNA v. STATE OF U.P.
871
Manoj Prasad, S.S. Gupta for the Appellant.
872
A
Ravi Prakash Mehrotra, Ram Kishor Singh Yadav for the

Respondent.
ORDER
1. This appeal has been filed against the impugned
judgment and order dated 13.4.2007 passed by the High Court
of Judicature at Allahabad in Criminal Appeal No. 3443 of 2000
by way of which, the High Court has affirmed the impugned
judgment and order dated 15.12.2000 of the Sessions Court
passed in Sessions Trial No. 3 of 2000, convicting the appellant
under Section 302 of Indian Penal Code, 1860 (hereinafter
referred to as `IPC') and sentencing her to undergo
imprisonment for life.
2. As per the prosecution case, the appellant is alleged
to have poured kerosene oil on her daughter in law Santoshi
and set her on fire. On hearing hue and cry of the deceased,
her neighbour Ram Singh took her daughter in law to the
hospital. In the hospital, two dying declarations were recorded,
one by the Investigating Officer and another by Shri Ved Priya
Arya, Naib Tehsildar-cum-Magistrate (PW.8). The dying
declaration was recorded by the said Magistrate on 26.6.1999
after getting a certificate from Dr. P.K. Pathak that she was fit
to make the statement. In her dying declaration, she had clearly
stated that she had married to Satish on 4.5.1999 and she was
pregnant. She was not sent to her parental house because her
in laws were demanding ring and money. Her mother in law
sprinkled kerosene oil on her and burnt her. She was subjected
to cruelty for dowry.
3. The trial court also applied the provisions of Section
113-B of the Evidence Act, 1872 (hereinafter referred to as `the
Evidence Act'), which gives a presumption of demanding of
dowry in such a case and recorded the findings of guilty of the
[2013] 2 S.C.R.
appellant. The said findings had been affirmed by the High

Court.
4. We have gone through the entire record and we are not

impressed by any of the argument advanced by Shri Manoj
B Prasad, learned counsel appearing on behalf of the appellant,
and we are of the view that no fault can be found with the
judgment and order impugned before us. Undoubtedly, the
deceased Santoshi, was only 22 years of age when she got
married on 4.5.1999. She got injured in the said incident on
25.6.1999 and died on 17.7.1999, i.e. within a period of two
C
months from the date of marriage. She got injured at 8.00 a.m.
in her in laws house when the appellant, her mother in law, was
present there. In her dying declaration, she had also disclosed
that her sister in law was also present there. She did not make
any allegation, whatsoever, against her. Thus, the veracity of
D her dying declaration cannot be doubted and we do not find
any cogent reason to interfere with the impugned judgment and
order. The appeal lacks merit and is dismissed.
5. It is submitted by Shri Manoj Prasad, learned counsel
for the appellant, that the appellant has already served 14 years
and 6 months of imprisonment in jail and her case has not been
considered by the State for premature release under Section
432 Cr.P.C. Further, Shri Mehrotra, learned standing counsel
appearing on behalf of the State of U.P., assured the Court that
F her case for premature release would be considered within a
period of 3 months from today. In view of the above, Shri
Mehrotra will send a copy of this judgment to the concerned
authorities. We request the said authorities to consider the
case of the appellant for premature release strictly in
G accordance with law.
E
B.B.B.
Appeal dismissed.
874
[2013] 2 S.C.R. 873

MASHYAK GRIHNIRMAN SAHAKARI SANSTHA
MARYADIT
v.
USMAN HABIB DHUKA & ORS.
APRIL 18, 2013
O.6, r.17 read with O.2, r.2 Amendment of plaint

Declined by City Civil Court, but permitted by High Court
Held: The statement that plaintiffs were not aware of
conveyance dead, prima facie, is not correct Plaintiffs had
come to know of conveyance dead much before filing of suit,
but relief was not sought for in the plaint There is no ground
for allowing the amendment sought for by plaintiffs which was
not only a belated one but was clearly an after-thought for the
obvious purpose to avert the inevitable consequence Order
of High Court set aside and that of City Civil Court restored.
The appellant Co-operative Housing Society entered
into a development agreement with respondent no.4 developer in respect of development of Societys
property. The plaintiffs-respondent nos.1 to 3, claiming
themselves to be the members of the appellant- Society
filed a suit in the City Civil Court challenging
amalgamation of two plots owned by the Society and
praying for directions, inter alia, for demolition of the
construction raised on the amalgamated plot. While
declining the interim injunction, it was observed that the
plaintiffs never raised any objection to conveyance deed
dated 8.2.1989. The plaintiffs took out Chamber Summary
for amending the plaint and seeking to incorporate the
873
[2013] 2 S.C.R.
relief of declaration of conveyance deed dated 8.2.1989

as illegal, mala fide and bad in law. The City Civil Court
dismissed the Chamber Summons. However, the High
Court in writ petition under Art. 227 of the Constitution
set aside the order of City Civil Court and permitted the
plaintiffs to amend the plaint.
Allowing the appeal, the Court
[P. SATHASIVAM, M.Y. EQBAL AND

ARJAN KUMAR SIKRI, JJ.]
CODE OF CIVIL PROCEDURE, 1908 :
HELD: 1.1. The amendment petition reveals that the

main ground for seeking relief is that the plaintiffC respondent Nos.1 to 3 were allegedly not aware of the
conveyance deed dated 08.02.1989. Indisputably, plaintiffrespondent no.1 was the office-bearer of the Society at
the relevant time and by Resolution taken by the Society
he was authorized to complete the transaction.
D Therefore, it is incorrect to allege that the plaintiffrespondent No.1 was not aware about the transaction of
1989. [paras 6 and 7] [879-D; 880-B-C]
1.2. Moreover, before the institution of the suit in the
year 2010, the plaintiffs allegedly came to know about the
E
Conveyance Deed dated 8.2.1989, some time in the year
2009, but relief was not sought for in the plaint which was
filed much later i.e. 14.10.2010. The High Court has not
considered these undisputed facts and passed the
impugned order on the general principles of amendment
F as contained in O.6, r.17 of the Code of Civil Procedure.
There is no ground for allowing the amendment sought
for by the plaintiffs which was not only a belated one but
was clearly an after-thought for the obvious purpose to
avert the inevitable consequence. The High Court has
G committed serious error of law in setting aside the order
passed by the trial court whereby the amendment sought
for was dismissed. The order of the High Court is set
aside and that passed by the trial court restored. [paras
7 and 8] [880-C-F]
H
MASHYAK GRIHNIRMAN SAHAKARI SANSTHA MARYADIT 875

v. USMAN HABIB DHUKA
CIVIL APPELLATE JURISDICTON : Civil Appeal No. A

3917 of 2013.
Court of Bombay in WP No. 130 of 2012.
Shekhar Naphade, Pallav Shishodia, Shrish Kumar Misra, B
I.A. Siddiqui, S.P. Bharati, K.D. Jha, Rahul Gupta, Gaurav Jain,
Abha Jain, N.K. Jain, S. Sukumaran, Uday H. Kedar, Anand
Sukumar, Bhupesh Kumar Pathak, Debjyoti Basau, Meera
Mathur for the Appearing parties.
C
M.Y.EQBAL, J. 1. Leave granted.
2. This appeal is directed against the order dated 14th
February, 2012 of the High Court of Judicature at Bombay in D
Writ Petition No. 130 of 2012 whereby the order dated 3rd
December, 2011 passed by the learned Judge of City Civil
Court, Dindoshi, Goregaon, Mumbai was set aside and the
plaintiffs (respondent Nos. 1 to 3 herein) were permitted to
E
amend the plaint.
3. The facts of the case are that the plaintiffs are allegedly
the members of the appellant a Co-operative Housing Society
(defendant No. 1 in the suit) (in short the Society) which had
entered into a development agreement in the month of
F
November 2006 with Respondent No. 4 M/s. Universal Builders
(in short the Developer) in respect of the development of the
Societys property. The plaintiffs challenged the re-development
in the Co-operative Court at Mumbai but failed. The Cooperative Appellate Court also refused to grant any relief to
G
them. They thereafter filed a suit in the City Civil Court at
Mumbai inter alia challenging amalgamation of plots bearing
CTS Nos. 978 and 979 (both owned by the appellant-Society),
praying for directions to Municipal Corporation of Greater
Mumbai as regards demolition of fully/partially constructed
buildings of appellant-Society on the amalgamated plot, H
876
[2013] 2 S.C.R.
seeking injunction restraining the Society and the Developer

from utilizing the entire available balance TDR/FSI of the plot
and praying for directions that the entire amount received/
receivable by the Society by selling its balance FSI/TDR be kept
in fixed deposit to be utilized for reconstruction of the existing
B buildings etc. The plaintiffs also took out Notice of Motion in
the suit for getting interim relief seeking that the Society and
the Developer be restrained from carrying out any construction
over the plot. The Civil Judge vide order dated 4th January,
2011 rejected the Notice of Motion holding that the plaintiffs
C were aware of all the facts but they did not raise any objection
on dispute; they allowed the Society and the Developer to enter
into agreement to obtain amalgamation order, IOD and CC and
to raise construction; and when the substantial construction had
been raised the plaintiffs were seeking relief of restraining the
D Society and the Developer from raising further construction. It
was further held by the City Civil Court that the plaintiffs never
raised any objection or protested against the Conveyance Deed
dated 8th February, 1989. The matter was carried in appeal
before the High Court by filing Appeal from Order (A.O.), but
no relief was granted by the High Court and the plaintiffs sought
E
adjournment to seek amendment in the suit. Thereafter, the
plaintiffs took out Chamber Summons for amending the plaint
thereby seeking to incorporate the relief of declaration of
Conveyance Deed dated 8th February, 1989 as illegal, mala
fide and bad in law stating that due to oversight and bona fide
F mistake the relief could not be sought earlier and to add certain
other facts which were allegedly not incorporated in the plaint.
The said application was opposed by the opposite parties on
several grounds including that Order II Rule 2 leave was not
obtained and that the decision not to challenge the conveyance
G at the time of filing suit was in order to get out of clutches of
limitation. The Chamber Summons was dismissed by the
learned Judge of City Civil Court vide order dated 3rd
December, 2011 holding :
H
18. Thus, on going through record, prima facie it

v. USMAN HABIB DHUKA [M.Y. EQBAL, J.]
appears that the proposed amendment in the schedule of

Chamber Summons was within the knowledge of Plaintiffs
at the time of filing of the Suit. However, at the time of filing
the suit, they have failed to challenge execution of
conveyance deed dated 8.2.1989, mala fide and bad in
law. On the contrary it has come on record that they do not
want to challenge the same as same was obtained by
fraud or misrepresentation. Moreover, Plaintiffs are not
party to execution of said Conveyance deed nor legal heirs
of deceased Jamal Gani. So also the Plaintiffs have not
made party to six executants of the said conveyance deed
to Chamber Summons nor sought any relief against them.
It also appears from record that Plaintiffs in their Chamber
Summons stated that due to oversight and inspite of due
diligence they could not bring the said facts on record at
the time of filing of suit. But the said statement appears to
be contrary to their pleading in the Plaint as well as in A.O.
Therefore, cannot be accepted.
xxx
xxx
xxx
xxx
[2013] 2 S.C.R.
26. In the present case also deed of conveyance was

executed in the year 1989 and prior to 1988 Plaintiff No.
1 is a member of the society and also was chairman of
the society from 1997-2002 and he was aware about
execution of said conveyance deed since 1989. So also
he was aware about the said facts prior to filing of the suit.
In spite of the same he has failed to seek declaration. ..
27. Thus, considering the facts and circumstances
of the case, it appears from record that the facts
mentioned in the schedule of Chamber Summons which
Plaintiffs want to incorporate in Plaint as well as prayer
clause were of the year 1989 and Plaintiffs were within
knowledge of the same prior to filing of the suit. However,
the Plaintiffs have failed to bring the said facts before the
Court. So also Plaintiffs have only challenged
amalgamation of Plot No. 978 and 979 in the Suit. So also
Plaintiffs were not a party to the conveyance deed nor legal
heirs of deceased Jamal Gani. Plaintiffs also failed to
show that the proposed amendment is necessary for
determining the real question in controversy between
parties. So also the Plaintiffs failed to show that inspite of
due diligence they could not bring the same on record,
therefore, they are not entitled for same. Hence they are
not entitled to amend the Plaint as prayed.
. Chamber Summons No. 322/11 is hereby

dismissed with cost.
4. Aggrieved by the above-quoted order, the plaintiffs filed

a writ petition under Article 227 of the Constitution of India
before the High Court. The High Court vide order dated 14th
February, 2012 set aside the order dated 3rd December, 2011
of the City Civil Court permitting the plaintiffs to amend the
plaint observing :
xxx
20. .. In the present case, I have already held that

the Plaintiffs were within the knowledge of proposed
amendment at the time of filing of the suit. But they have
failed to incorporate same in the suit. So also Plaintiffs
failed to show that inspite of the due diligence they could
not relief against them. It also appears from record that
Plaintiffs in their chamber summons stated that due to
oversight and inspite of due diligence they could not
incorporate said facts in the Plaint. On the contrary record
shows that they have omitted to incorporate the same in
the Plaint. Plaintiffs also failed to show that the proposed
amendment is necessary for the purpose of determining
the real controversy and dispute between the parties.
Therefore, observations made in the above authorities are
not helpful to the Plaintiffs in support of their submission.
xxx
878
3. The basis upon which the opposition is

considered and the order is made is not in accordance

v. USMAN HABIB DHUKA [M.Y. EQBAL, J.]
with law. A party must be entitled to aver whatever the

party requires. The averments in the plaint would not show
whether the case is truthful or false. That would be agitated
on merits. That has been agitated upon in the interim
application as also in the Appeal from Order.
4. It may be clarified that amendments allowed can
be defended by the defendants in a separate written
statement if an earlier written statement is filed.
Consequently, the impugned order disallowing the
amendments sought by the plaintiff and dismissing the
Chamber Summons with costs required to be revised. ..
880
A
5. Hence, defendant No. 1-Society (appellant herein) has

filed this appeal by special leave.
6. We have heard learned counsel appearing for both
sides and have minutely gone through the pleadings of the
parties and the amendment petition. From perusal of the
amendment petition, it reveals that the main ground for seeking
relief is that the plaintiff-respondent Nos.1 to 3 were allegedly
not aware of the conveyance deed dated 08.02.1989. For
better appreciation, para 32-(b) of the amendment petition is
reproduced hereinbelow:The Plaintiffs say that all documents were applied
under RTI and some of the same were received by
Plaintiffs on 2.3.2009. The Plaintiffs further say that prior
thereto Plaintiffs were unaware of any such Conveyance
dated 8.2.1989. The Plaintiffs further say that for the first
time after going through the certified copies received under
RTI Act the Plaintiffs came to know about such
manipulation and forgery in he registered Conveyance
dated 8.2.1989. The Plaintiffs further say that the signature
of the deceased Jamal Gani Khorajia has been got forged
and documents executed and registered and a signature
got manipulated through some fake persons, who must
have impersonated deceased Mr. Jamal Gani Khorajia.
[2013] 2 S.C.R.
The Plaintiffs say that is the matter of common sense that

when Jamal Gani Khorajia had expired on 14.8.1984 then
how could he execute the said Conveyance dated
8.2.1989 after 5 years from the date of his death.
7. Prima facie the aforesaid statement made in the
amendment petition is not correct. Indisputably, the plaintiffrespondent no.1 was the office-bearer of the Society at the
relevant time and by Resolution taken by the Society
respondent No.1 was authorized to complete the transaction.
Hence, it is incorrect to allege that the plaintiff-respondent

No.1 was not aware about the transaction of 1989. Moreover,
before the institution of the suit in the year 2010, the plaintiffs
allegedly came to know about the Conveyance Deed dated 8th
February, 1989, some time in the year 2009, but relief was not
D sought for in the plaint which was filed much later i.e. 14th
October, 2010. The High Court has not considered these
undisputed facts and passed the impugned order on the
general principles of amendment as contained in Order VI Rule
17 of the Code of Civil Procedure. Hence we do not find any
E ground for allowing the amendment sought for by the plaintiffs
which was not only a belated one but was clearly an after-thought
for the obvious purpose to avert the inevitable consequence.
The High Court has committed serious error of law in setting
aside the order passed by the trial court whereby the
F amendment sought for was dismissed. The impugned order of
the High Court cannot be sustained in law.
8.For the aforesaid reasons, the appeal is allowed, the
impugned order passed by the High Court is set aside and the
order passed by the trial court is restored. No order as to costs.
G
R.P.
Appeal allowed.

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594

[2013] 2 S.C.R. 593

Words and Phrases apprentice and apprenticeship

A Division Bench of High Court upheld the order of Single

[K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]

Assured Career Progression (ACP) Scale Entitlement

SUPREME COURT REPORTS

HELD: 1. Section 2(aa) of the Apprentices Act, 1961

HARYANA POWER GENERATION CORPORATION

U.P. State Electricity Board v. Shiv Mohan Singh and

service would mean continuous service counting

SUPREME COURT REPORTS

2004 (4) Suppl. SCR 953 Relied on

1985 (2) SCR 52

2005 (1) SCR 1123

2004 (4) Suppl. SCR 127 Relied on

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 100

From the Judgment & Order dated 26.7.2010 of the High

HARYANA POWER GENERATION CORPORATION

R.K. Kapoor, Ranjvijay, Shweta Kapoor, Anis Ahmed Khan

The Judgment of the Court was delivered by

SUPREME COURT REPORTS

A arrears. Though the writ petition was confined to grant of the

HARYANA POWER GENERATION CORPORATION

Scales reckoning the period of training towards the regular

A record and how they are to be understood, appreciated and

SUPREME COURT REPORTS

9. The respondent No. 1 was appointed as Apprentice ITI

10. As the factual narration would exposit, the Board, in

HARYANA POWER GENERATION CORPORATION

SUPREME COURT REPORTS

50% posts shall be filled-up by direct recruitment from

Para-3 (i) of Part-B shall be substituted and read as

13. On 27.3.1991, the Secretary, HSEB, clarified the

Board vide its notification No. 57, 58, 59, 60/Reg-137,

50% posts shall be filled-up by direct recruitment from

A to ACP Scale granted under the ACP Scheme and the

After considering the pros and cons of the case, it

14. In continuation of the aforesaid clarificatory

HARYANA POWER GENERATION CORPORATION

grant of regular pay scale to the trainees of all categories and A

17. Clause 5 deals with the eligibility for grant of ACP

Eligibility for Grant of ACP Scales:

Every Board employee who, after a regular

recruitee in the Board service and is in continuous

(b) Direct Recruited Fresh Entrant with reference to a

SUPREME COURT REPORTS

either as a consequence of his functional

as a consequence of the revision of pay

as a consequence of any other event through

Every Board employee who, after a regular

HARYANA POWER GENERATION CORPORATION

either as a consequence of his functional A

as a consequence of the revision of pay

as a consequences of any other event B

Provided that grant of ACP scale shall also be considered

SUPREME COURT REPORTS

Division Bench has returned a finding in favour of the