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as public properties or private properties and whether the mahant has right to alienate them? the second issue is whether there is any right of succession to the galta peeth and its properties as per order dated 09 - 06 - 1943 appointing mahant ; and whether the mahant was to administer the properties during his life time? 6. the high court considered the provisions of section 24 of the rajasthan public trust act, 1959 ( hereinafter referred to as the act ) and also the objections filed by the petitioner in w. p. ( civil ) no. 5111 of 2004 which was filed by one mahant ram saran das. the advocate general brought to the notice of the high court that the issue of succession of mahant and also the issue of properties of galta peeth / thikana are pending before the assistant commissioner, devasthan department, in complaint nos. 1 of 2004, 1 of 2006 and 1 of 2007. respondent no. 4 in that writ petition consented for the disposal and adjudication of these issues by the assistant commissioner. accordingly, the high court, passed common order in the writ petitions in the following terms : 7. the high court has dismissed d. b. ( civil ) w. p. no. 5650 of 2007 filed by mandir thikana shri galtaji, as withdrawn basing on the submission of the learned counsel that in the light of the order passed in public interest litigations, petitioner may be permitted to withdraw the writ petition with a liberty to take pleas before the assistant commissioner, devasthanam department. 8. d. b. ( civil ) w. p. no. 6607 of 2004 was dismissed as withdrawn basing on the submission made by the counsel for the petitioner that the term of the committee concerned was only five years and which has came to an end in the year 2009, and hence the writ petition may be rendered infructuous and the petitioners be given liberty to raise other issues about the notification which was issued under chapter 10, if need so arises. the high court observed that it is agreed by all the parties that till the matter is decided by the assistant commissioner, devasthan department, they will maintain status quo in respect of the office of mahant as well as regarding property of galta peeth / thikana. 9. aggrieved by the order passed in d. b. ( civil ) w. p. no. 2321 of 2006,

civil appeal @ slp ( c ) no. 28021 of 2010 was filed and whereas against the order passed in d. b. ( civil ) w. p. no. of 6607 of 2004 which was filed by the father of the 4th respondent herein, wherein the appellant herein was not a party, has sought leave of the court and preferred civil appeal @ slp ( c ) no. 28022 of 2010 on the ground that the high court without going into the merits, rendered the matter infructuous and which resulted in miscarriage of justice and irreparable injury to the public interest. accordingly, these two appeals are placed before us, which arise out of a common order of the high court. 10. we have heard the counsels at length. it is mainly contended by the learned counsel appearing for the appellant that the writ petitions were disposed of by the high court without considering any of their contentions and particularly the reliefs sought in writ petitions, namely ( i ) a declaration to the effect that galta peeth / thikana, its temples and properties are public properties ; ( ii ) a restraint order against legal representatives of deceased ramodaracharya, including respondent no. 4 ( the present mahant ) from interfering with the management of the galta peeth ; ( iii ) a direction to the state government to take over the management of the galta peeth ; and ( iv ) call for a list of its properties and the properties sold by the deceased ramodaracharya and his family members. 11. he further contended that even though, the above reliefs were prayed for, but the high court, without considering the public interest involved, in a casual manner, has disposed of the writ petition. the high court has failed to take into consideration the material aspect in d. b. ( civil ) w. p. no. 6607 of 2004 filed by the father of respondent no. 4 and without going into the merits, simply rendered the matter infructuous. the reason given by the high court for its disposal is that the term of five years of the committee of management appointed by the government has come to an end and hence the matter has become infructuous and no cause survives. in fact, by an interim order of the court, the committee was prevented from discharging its duties and it did not function for a period of five years. in view of section 53 of the act, the

managing committee shall function till such time permanent arrangement is made for the management of the trust in question or in the alternative, the state government may be directed to appoint another managing committee comprising independent persons. 12. another contention advanced by the counsel was that the reliefs sought in the writ petition cannot be considered by the assistant commissioner in view of the fact that the assistant commissioner does not have such jurisdiction to decide the issues raised. 13. to substantiate his contention, the learned counsel submitted that as per the provisions of the act, it is the court within the meaning of sub - section ( 6 ) of section 2 of the act, which has to appoint the members of the trust. but, the 4th respondent, himself, nominated the members of the trust and usurped the office of the trust without any authority of law. under section 41 of the public trust act, he has to apply to the concerned court and under section 43 it is the power of the court to appoint the trustees with regard to the custom or usage and, as per the provisions of section 53 ( 1 ) of the act a committee of management has to be appointed in place of the respondent no. 4 by the state to protect the properties of the galta peeth and the respondent no. 4 cannot appoint his own trustees and the state government has to appoint the working trustee in accordance with the act. 14. during the pendency of the reconstitution of the committee of management under section 53 of the act, a direction to the state government was sought to appoint a managing committee of independent persons to protect the interests of the trust. he contended that the order of the high court disposing of the writ petition was unmindful and has resulted in serious miscarriage of justice and irreparable injury to public interest. under section 53 of the act, the government is bound to appoint another committee or re - appoint the erstwhile members of the committee. the high court has created a vacuum not contemplated by the act, which is against public interest. 15. in support of his contentions, learned senior counsel for the appellant has relied upon the decisions of this court in seth badri prasad vs. seth nagarmal & ors. ( 1959 ) supp. 1 scr 769 ; shehla burney ( dr. ) vs. syed ali moosa raza & ors. ( 2011 ) 6 scc 529 ; rural litigation and entitlement kendra vs. state of u.

p. ( 1989 ) supp 1 scc 504 ; padma vs. hiralal motilal desarda & ors. ( 2002 ) 7 scc 564 and bangalore medical trust vs. b. s. muddappa & ors. ( 1991 ) 4 scc 54. 16. in addition to the oral submissions, learned senior counsel for the appellant has also placed before us detailed written submissions and chronology of events from 15th century onwards about the formation of the trust to till date and had taken us through various provisions of the act and also placed the pedigree of the mahants starting from the founder mahant and submitted that submission based on statutory provision can be raised at any stage. 17. respondent no. 4 filed an interlocutory application raising preliminary objections about the maintainability of these appeals and narrated the earlier litigation. while the d. b. ( civil ) w. p. no. 2321 of 2006 was pending, the high court, by an interim order dated 4th may, 2007, restrained the respondent no. 4 herein to deal with the properties of the galta peeth as a working trustee. aggrieved thereby, respondent no. 4 filed a special leave petition before this court. consequently it became civil appeal no. 3746 of 2009. 18. during the pendency of civil appeal no. 3746 of 2009, the writ petitions before the high court were disposed of on 4 - 5 - 2010 holding that since the issues raised are already pending consideration before the assistant commissioner, devasthan department the parties may raise their grievances before him. accordingly, civil appeal no. 3746 of 2009 filed against interim order of the high court, was also dismissed by this court on 08. 07. 2013 as having become infructuous. 19. it is contended by the learned counsel for the respondent no. 4 that the appellant has misused the pendency of civil appeal no. 3746 of 2009. taking advantage of the pendency of civil appeal no. 3746 of 2009, the appellant has filed the present appeals. the appellant moved an application before this court for dismissal of civil appeal no. 3746 of 2009 as it has become infructuous in view of the impugned order of the high court. but, deliberately and intentionally the appellant did not move any application for formal dismissal in the present appeals, though they too have become infructuous. 20. relying upon the order of the division bench of the high court, it is

contended that after the disposal of the writ petition, as per the directions of the high court, the appellant herein has impleaded himself and filed objections before the assistant commissioner in the statutory appeal. taking into consideration the provisions of sections 21, 38 and 41 of the act, the assistant commissioner rejected the same by three separate speaking orders dated 28th march, 2013. against those orders, the appellant has already filed appeals before the commissioner, which are pending for consideration. hence these civil appeals are not maintainable. 21. apart from preliminary objections, learned counsel appearing for the respondents addressed on the main issues also and relied upon different provisions of the act. the counsel brought to our notice that in fact as early as on 19 - 5 - 1928 itself a list of properties of galta peeth was drawn up, including some of the private properties of the mahant i. e. residential house etc. thereafter, a series of legal proceedings have taken place between the government, private parties and the galta peeth and their rights are crystallized in the respective litigations. according to him, the appellants have again raked up the issue in the guise of public interest litigation, which was already subject matter of dispute in the earlier round of litigation. 22. it is also stated by the counsel that after the act has come into force, the mahant submitted a list of properties on 25 - 10 - 1962 to the jagir commissioner wrongly showing some of his personal properties as trust properties and this list of properties was the same as submitted in 1928. it is also prayed before us that on 31st december, 1962 the mahant made an application for registration of the mandir thikana shri galtaji as public trust under the act and made it clear that the mode of succession to the office of trustee will be by way of custom and usage. the said trust was registered by the assistant commissioner on 26th april, 1963. it is also contended that in the list of trust properties which were also submitted along with the application, and which list became final, the property in question has not been shown as trust property and the said list has never been questioned. 23. relying upon several documents as well as counter affidavit and provisions of the act, it is contended that in view of the fact that the issues are pending before the competent authority, subsequent orders passed by the assistant commissioner against which appeals are pending before the commissioner, there is no need for this court to entertain these appeals and they have to

be dismissed as the appellant cannot litigate simultaneously before the appellate authority and this court. it is also contended that there is no allegation against avadesh kumar ( respondent no. 4 ) who is the present mahant and in view of the pendency of the appeals before the commissioner, the appellant cannot come before this court and misuse the forum in the guise of public interest litigation. 24. to substantiate his arguments, learned counsel relied on the judgments of this court in guruvayoor devaswom managing committee & anr. vs. c. k. rajan & ors. ( 2003 ) 7 scc 546 and church of north india vs. lavajibhai ratanjibhai & ors. ( 2005 ) 10 scc 760. a counter affidavit has been filed by the assistant commissioner of behalf of the state of rajasthan stating that the appellant is trying to confuse the issues and supported the judgment of the high court in all respects and further stated that the present appeals are not maintainable25. in view of the extensive arguments submitted on behalf of either side, the following issues fall for consideration before this court : 1. whether the high court was right in relegating the parties to the assistant commissioner without going into the merits and legal issues involved in the case? 2. whether the assistant commissioner has got the authority and jurisdiction under the act to deal with complicated issues involved in the matter? 3. whether the appellant herein is aggrieved by the order passed in writ petition ( c ) no. 6607 of 2004, wherein the writ petition was dismissed as infructuous? 26. before we deal with the above issues, it is necessary to examine the relevant provisions of the rajasthan public trust act, 1959 which came into force w. e. f. 1st july, 1962. chapter 5 of the act covers sections 16 to 29 and it deals with registration process of a public trust. as per section 16, the assistant commissioner shall be in charge of the registration and he maintains a register. section 17 explains the procedure for registration of public trusts which reads thus : thus, section 17 mandates that within three months from the date of enforcement of this section to a public trust, the working trustee can make an application to the assistant commissioner, in the prescribed form for registration. sub - section ( 4 ) of section 17 prescribes the particulars which shall contain in the application so made. clause ( v ) of sub - section ( 4 ) specifies that

the application shall contain a list of movable and immovable trust property. under sub - section ( 7 ) an appeal shall lie before the commissioner against the order of the assistant commissioner within a period of sixty days. 27. section 18 describes the procedure of inquiry to be undertaken by the assistant commissioner for registration of the public trust. the said section reads thus : 28. on completion of the inquiry as contemplated under section 18, the assistant commissioner shall record his findings as provided under section 19 of the act. section 20 of the act makes the provision for appeal and reads thus : 29. section 21 of the act prescribes that the assistant commissioner shall cause entries to be made in the register and under sub - section ( 2 ) the entries so made shall become final and conclusive. as per section 22, if anyone is aggrieved by any entry, he may institute a civil suit. if there is any necessity for changes in the entries so recorded in the register, the working trustee can make an application under section 23 ( 1 ) to the assistant commissioner. after holding an inquiry under section 23 ( 2 ) the assistant commissioner can change the entries. section 24 enables the assistant commissioner to undertake further inquiry, at any time after the entries are made under section 21 or 23. the said section reads thus : 30. it is the duty of the auditor under section 34 of the act, to prepare balance sheet of the public trust and to report irregularities, if any, and the auditor has to forward a copy thereof to the assistant commissioner. it is further the duty of the auditor to mention in the report in case of any irregularity, illegality or improper expenditure, failure or omission to recovery moneys or other property belonging to the public trust or of loss or waste of money or other property thereof. 31. chapter 8 of the act deals with management of trust property. section 38 therein provides for issuing directions by the assistant commissioner on an application filed by any person having interest in a public trust or otherwise that ( a ) the original object of the public trust has failed ; ( b ) the trust property is not being properly managed or administered ; or ( c ) the direction of the court is necessary for the administration of the public trust, he can direct inquiry after giving the working trustee an opportunity of being heard. 32. section 39 provides that where the assistant commissioner rejects an application, fails or refuses to make an application to the court, an appeal lies to the commissioner. on receipt of an application made under sections 38 or 39, the court shall consider

and pass appropriate orders under section 40 of the act. section 41 envisages that if the present working trustee of a public trust, for any reasons mentioned therein, can make an application to the assistant commissioner having jurisdiction seeking permission to apply to the court for appointment of a new working trustee and the court under section 43 of the act can make inquiry and pass an order. 33. section 49 of the act empowers the assistant commissioner to ask for explanation of the working trustee. if the assistant commissioner, on a perusal of the report of the auditor made under section 34, is of the opinion that material defects exist in administration of the public trust, he may require the working trustee to submit an explanation thereon within such period as he thinks fit. 34. some special provisions are provided to public trusts under chapter10. section 52 emphasizes how this chapter is applied to a public trust. it provides that this chapter applies to every public trust which has a gross annual income of rs. 1. 00 lakh or more or is maintained or managed by the state government. sub - section ( 2 ) provides that it is the duty of the state government to publish in the official gazette a list of the public trusts to which this chapter applies. the amended sub - section ( 3 ) makes it clear that for the purpose of maintaining public order, the state government may suspend by notification in the official gazette, the application of this chapter to any public trust or the procedure for constitution of committee of management under this chapter for such period as may be specified in such notification. 35. section 53 as amended on 9th may, 2007 provides that if the state government is satisfied with the public interest, it may, by notification in the official gazette, vest the management of a public trust in a committee of management to be constituted by it. before the said amendment, the old act contained the word shall in place of may. thus, before the amendment, it was compulsory for the government to constitute a committee which was diluted by introducing the provision as may. 36. sub - section ( 5 ) of section 53 states that the committee of management which is to be appointed by the government, must include, the hereditary trustee in case of a public trust whereas in case of a math, the head thereof as the chairman of the committee of management. 37. whenever the state government decides to appoint a committee of management under section 53, a notice shall be issued under section 54 to the hereditary trustee or the head of the math,

as the case may be, about the intention of the government to constitute the committee and shall hear their objections, if any. under section 55 of the act one can be disqualified from being considered as a member of the committee of management. according to section 56, the term of office of the committee is five years. 38. section 67 of the act provides that the officers holding enquiries shall have the power of civil court. the section reads thus : b ) summoning and enforcing the attendance of any persons and examining him on oath ; c ) compelling the production of documents ; andd ) issuing of commissions. 39. from the above, it is evident that all the officers holding enquiry under the act i. e. the commissioner and assistant commissioner, have the power of a civil court in respect of proof of facts by affidavits, for summoning and enforcing the attendance of any person and examining him on oath and further compelling the production of documents and issue of commissions. 40. a detailed examination of the act reveals that it is a self - contained act. we have thoroughly examined the sections and each and every provision of law that is relevant for the purpose of the case on hand and find that the act has provided appropriate mechanism ( a ) to deal with the registration of a public trust ; ( b ) making of entries in the register, their correction and inquiry, if any ; ( c ) duties of auditor and inspection of balance sheet by any person interested in such public trust ; ( d ) application by any person seeking directions from the assistant commissioner to appoint a new working trustee on the ground that the properties of the trust are not being properly managed or administered ; ( e ) power of the assistant commissioner to ask for explanation of the working trustee about the administration of the trust ; and ( f ) in case of mismanagement, power of the state government to appoint a new committee of management etc. 41. now in the light of the above provisions of the rajasthan public trust act, we would like to deal with the submission of the counsel on either side and the legality or otherwise of the order passed by the high court. it appears from the material placed before us that there is a long standing dispute with regard to the properties of the galta peeth / thikana which was established in the 15th century by one mahant shri krishnadas payohari. later on 06. 07. 1943, ramodaracharya, the father of respondent no. 4 herein was appointed as

mahanth by the ruler. the rajasthan public trusts act 1959 has come into force w. e. f. 01. 07. 1962. the case of the appellant is that on 25. 10. 1962, the mahant submitted a list of properties to the jagir commissioner showing some of the properties of the trust as his personal properties. then the mahanth has executed gift deeds in favour of his wife and sons. on 31. 12. 1962, mahant ramodaracharya made an application for registration of the mandir thikana shri galtaji as a public trust under the act. in the application, as regards the mode of succession of the office of the trustee, he stated that it would be by custom and usages. on 26. 04. 1963, the assistant commissioner passed order registering the trust. later on, a series of litigation went on between the parties with regard to the properties of the trust / math. when the government appointed a five - member committee for proper management of the trust, challenging the same d. b. ( civil ) w. p. no. 6607 of 2004 was filed. when the assistant commissioner re - opened the issue of succession, 4th respondent herein filed d. b. ( civil ) w. p. no. 5650 of 2007. two public interest litigations i. e. d. b. ( civil ) w. p. no. 5111 of 2004 and d. b. ( civil ) w. p. no. 2321 of 2006 were filed seeking to declare ( a ) the properties are trust properties, ( b ) the mode of succession, ( c ) direct the government to take over the management of the trust and ( d ) to appoint a board to manage the properties in line with vaishno devi shrine or tirupati balaji temple. 42. the above narrated facts disclose that either in the public interest litigation or in the private civil litigation, the entire issues revolve around the properties of galta peeth and the mode of succession to the peeth. already in respect of these issues, by the time, these writ petitions were filed, statutory enquiry application nos. 1 / 2004, 1 / 2006 and 1 / 2007, under section 24 of the act, were pending before the assistant commissioner. hence, the high court felt that those issues can be effectively decided by the assistant commissioner, and accordingly, permitted the appellant to

implead himself in the pending applications before the authority. in view of the statutory provisions, as narrated and discussed by us supra, which give extensive powers to the assistant commissioner and commissioner, in some cases the power of the civil court to effectively decide the issues of the public trust, by providing effective mechanism, we are unable to agree with the contentions advanced by the learned counsel that the assistant commissioner has no jurisdiction to adjudicate the disputes involved, because the act clearly demonstrates the power and jurisdiction of the assistant commissioner in deciding the issues pertaining to public trust and particularly the issues raised before us. 43. apart from that, the appellant herein has impleaded himself in the applications pending before the assistant commissioner which were disposed of by him vide orders dated 28. 03. 2013, and against those orders of the assistant commissioner, it appears that the parties have preferred appeals as provided under the act. the appellant having availed the alternative remedy available under the act, however, approached this court by way of these civil appeals. in our opinion, the appellant cannot be permitted to avail two remedies simultaneously, and such conduct of the appellant is abuse of process of court. it is no doubt settled law that mere availability of alternative remedy cannot be a ground to reject the relief in a public interest litigation, but in the facts and circumstances of the case, namely the history of the case, right from 15th century, the long standing litigation, the voluminous record, etc. involving disputed questions of facts and law, we are of the considered opinion that adjudication of such disputes is not possible in a public interest litigation, and the remedy is to get such disputes adjudicated by a fact finding authority as enumerated under the act, which remedy is not only alternative, but also effective, because the parties can put a quietus to the litigation once for all. hence, in view of our above discussion, we are of the considered opinion that the high court, by the impugned order, was justified in relegating the parties to the assistant commissioner, before whom the applications are pending adjudication. the appellant having got impleaded himself in the applications before the assistant commissioner and having invited an order from the high court, now cannot be permitted to question the said order of the high court. accordingly, the first and second issues are answered. 44. third issue that requires our consideration is whether the appellant herein is aggrieved by the orders passed in d. b. ( civil ) w. p. no. 6607 of 2004, which was dismissed as infru

##ctuous. the case of the appellant is that the high court should not have dismissed the writ petition as withdrawn basing on the submission that the term of the committee has expired. it ought to have decided the issue on merits. by this order, the high court has created a vacuum not contemplated by the act, which is against public interest, in view of the status quo orders passed by the court, the committee could not function its full period. hence, the committee has to be allowed to function till a permanent committee is appointed by the government. 45. we are also not able to appreciate the argument advanced by the learned counsel for the appellant for reason that d. b. ( civil ) w. p. no. 6607 of 2004 was filed by the father of respondent no. 4 herein questioning the constitution of the committee. when the court directed the parties to appear before the assistant commissioner for proper adjudication of the issues as the five - year term of the committee expired, the 4th respondent sought permission of the court and withdrew the writ petition, with a liberty to raise all the issues before the authority. the appellant herein who was not a party to d. b. ( civil ) w. p. no. 6607 of 2004 has not chosen to implead himself nor objected to the withdrawing of the writ petition when the order was passed in his presence. he is taking such an objection and such plea for the first time before this court. he relied on shehla burney ( dr. ) vs. syed ali moosa raza & ors. ( 2011 ) 6 scc 529 ; that on technical objection, this court cannot reject to grant relief to the appellant in this public interest litigation. there is no dispute with regard to the legal proposition that technicalities should not come in the way of the court in granting relief in a public interest litigation, but application of a legal proposition depends upon the facts and circumstances of each case. here we deem it appropriate to extract section 53 which reads thus : sec. 53 - management of public trusts to which this chapter applies : 1. notwithstanding anything contained in any provision of this act or in any law, custom or usage, if the state government is satisfied that it is expedient in public interest so to do, it may, by notification in the official gazette, vest the management of a public trust to which this chapter applies in a committee of management to be constituted by it in the manner hereinafter provided from such date as may be appointed by it in this behalf

. 2. on or before the date so fixed under sub - sec. ( 1 ) in respect of a public trust, the state government shall subject to the provision contained in sec. 54, constitute by notification in the official gazette a committee of management thereof under such committee shall be deemed to be the working trustee of the said public trust and its endowment. provided that upon the combined request of the trustee of and persons interested in several public trusts representing the same religion or persuasion, the state government may constitute a committee of management for all of them, if their endowments are situated in the same city, town or locality. 3. every committee of management constituted under sub - sec. ( 2 ) shall be a body corporate having perpetual succession and a common seal, with power to acquire, hold and dispose of property subject to such conditions and restrictions as may be prescribed and may by the name specified in the notification under sub - section ( 2 ) sue and be sued. 4. a committee of management shall consist of a chairman and such even number of members not exceeding ten and not less than two as the state government may determine. 5. the chairman and members of a committee of management shall be appointed by the state government by notification in the official gazette from amongst ( a ) trustee of public trusts representing the same religion or persuasion and having the same objects, and ( b ) person interested in such public trusts or in the endowments thereof or belonging to the denomination for the purpose of which or for the benefit of whom the trust was founded, in accordance with the general wishes of the person so interested so far as such wishes can be ascertained in the prescribed manner. provided that in the case of a public trust having a hereditary trustee, such trustee, and in the case of a math, the head thereof, shall be the chairman of the committee of management, if he is willing to serve as such. 46. in this case, a committee was constituted pursuant to notification dated 18. 09. 2004, and the term of the committee expired on 17. 09. 2009, and even though four years have passed from the date of expiry of the term of the committee, the government has not chosen to appoint a fresh committee. the appointment of the committee invoking section 53, depends upon the satisfaction and necessity felt by the government. it is brought to our notice that the notification was issued by the government invoking unamended section 53 of the act. the said section has now been amended on 12. 10. 2007, where the government was

given discretion to appoint or not to appoint the committee. we have gone through the amended section 53 of the act wherein the word may has been substituted in the place of shall. the assistant commissioner has already passed an order and the same is subject matter of appeal before the commissioner. in view of the same, we are not able to appreciate the contention of the counsel that a permanent committee has to be appointed to look after the management of the galta peeth, and such contention, deserves no consideration by this court, and is accordingly rejected, and further hold that the order passed by the high court in d. b. ( civil ) w. p. no. 6607 of 2004 is perfectly valid. accordingly, issue no. 3 is answered. under the circumstances, we cannot give any direction to the government to invoke section 53 for appointment of a committee of management to the trust. 47. the scope of public interest litigation is very limited, particularly, in the matter of religious institutions. it is always better not to entertain this type of public interest litigations simply on the basis of affidavits of the parties. the public trusts and religious institutions are governed by particular legislation which provide for a proper mechanism for adjudication of disputes relating to the properties of the trust and their management thereof. it is not proper for the court to entertain such litigation and pass orders. it is also needless to mention that the forums cannot be misused by the rival groups in the guise of public interest litigation. 48. we feel that it is apt to quote the views expressed by this court in guruvayoor devaswom managing committee ( supra ) wherein this court observed : 49. the concept of public interest litigation is a phenomenon which is evolved to bring justice to the reach of people who are handicapped by ignorance, indigence, illiteracy and other down trodden people. through the public interest litigation, the cause of several people who are not able to approach the court is espoused. in the guise of public interest litigation, we are coming across several cases where it is exploited for the benefit of certain individuals. the courts have to be very cautious and careful while entertaining public interest litigation. the judiciary should deal with the misuse of public interest litigation with iron hand. if the public interest litigation is permitted to be misused the very purpose for which it is conceived, namely to come to the rescue of the poor and down trodden will be defeated.

the courts should discourage the unjustified litigants at the initial stage itself and the person who misuses the forum should be made accountable for it. in the realm of public interest litigation, the courts while protecting the larger public interest involved, should at the same time have to look at the effective way in which the relief can be granted to the people, whose rights are adversely affected or at stake. when their interest can be protected and the controversy or the dispute can be adjudicated by a mechanism created under a particular statute, the parties should be relegated to the appropriate forum, instead of entertaining the writ petition filed as public interest litigation. 50. in view of the above discussion and the law laid down by this court and particularly taking into consideration that the appellant has already availed statutory remedies and the appeals are still pending before the commissioner, we do not find any reason to interfere with the impugned order. 51. accordingly, the appeals fail and are dismissed with no order as to costs. cji. ( p. sathasivam ) j.

dipak misra, j. the present appeals, by special leave, have been preferred against the common judgment and order dated 18. 03. 2005 passed by the high court of punjab and haryana at chandigarh in criminal appeal nos. 78 - db & 146 - db of 1997 with criminal revision no. 219 of 1997 whereby the court has declined to interfere with the judgment of conviction and order of sentence passed by the learned addl. sessions judge, hisar in sessions case no. 40 of 1993 for the offences under sections 148 and 302 read with section 149 of ipc and affirmed the sentences of imprisonment for life and payment of fine of rs. 1000 / - by each with the default clause under section 302 read with section 149 of ipc and rigorous imprisonment of two years under section 148 ipc with the stipulation that both the sentences shall be concurrent. 2. shorn of unnecessary details, the prosecution version is that on 28. 06. 1993 the informant, satbir singh, pw 3, along with his two brothers, namely, mahinder singh, pw 7 and prabhu dayal ( deceased ) had gone to hisar to enroll themselves in the border security force for which interviews were being held at hisar. about 3. 00 p. m. all of them returned from hisar in a machanised cart ( pater rehra ) and alighted at the bus stand of their village, sadalpur. at that time, the accused - appellants, namely, man singh, radhey sham, bhal singh, ram kanwar, raja ram, mange ram, kirpa ram and prem singh emerged from the rear of kotha ( chamber ), located nearby, het ram armed with a gun and all others armed with lathis. all of them raised a lalkara with the intention to assault the informant and his two brothers, mahinder singh and prabhu dayal, as the later had earlier caused injuries to them. forming an unlawful assembly, with the common object they inflicted injuries on prabhu dayal with their lathis and butt of the gun. prabhu dayal fell down on the road. being scared, the informant and his brother mahinder singh ran away and stood near the wall of the water reservoir. thereafter, om prakash came on a tractor bearing registration no. hr - 20a - 8022, ran over prabhu

dayal and fled away from the scene of occurrence along with their weapons in the tractor. the informant and his brother mahinder singh went to see the condition of prabhu dayal who had sustained injuries on his arms, legs, waist and head and bleeding profusely. he was taken to the government hospital, adampur in a machanised cart and first aid was given to him. during his examination by the medical officer he succumbed to his injuries at 5. 50 p. m. and the hospital staff informed the nearby police station about his death. the investigating officer, ronaski ram, pw - 8, recorded the statement of satbir singh, pw - 3, and on that base registered an fir no. 100 / 93 at 7. 45 p. m. and the criminal law was set in motion. 3. in course of investigation, the investigating agency prepared the inquest report, got the post mortem conducted and collected the blood stained earth vide seizure memo ext. pm. on 2. 07. 1993 the investigating officer arrested man singh, radhey shyam, ram kumar, raja ram and om prakash. all of them led to discovery of the weapons used in the alleged commission of crime. after completing the investigation charge - sheet was placed against the aforementioned accused persons. 4. the accused persons pleaded innocence and false implication due to animosity. be it noted, in course of trial after some evidence was recorded, the learned trial judge, on the basis of an application preferred by the public prosecutor under section 319 of the code summoned the other accused persons, namely, bhal singh, mange ram, kirpa ram, het ram and prem singh to face trial. 5. in order to prove its case, the prosecution, examined eight witnesses, namely, dr. pratap singh, pw - 1, om prakash, patwari, pw - 2, satbir singh, pw - 3, dr. p. l. jindal, pw - 4, basant kumar, pw - 5, ram kumar, asst. sub inspector, pw - 6, mahinder singh, pw - 7 and ronaski ram, investigating officer, pw - 8. no evidence in defence was adduced by the accused. however, a copy of the judgment relating to land dispute between the parties and copy of fir no. 6 dated 9.

1. 1993 and copy of election petition, ext. dc titled as sohan lal v. nardwari and others were tendered in evidence to substantiate the plea of enmity. the learned trial judge on appreciation of evidence brought on record came to hold that the prosecution had brought home the charges beyond any reasonable doubt and, accordingly, convicted all the accused persons and sentenced each of them as has been stated hereinbefore. 6. being dissatisfied with the judgment of conviction and order of sentence the accused persons preferred appeal before the high court raising many a stand and stance. the high court repelled all the contentions by holding that there was no delay in lodging of the fir ; that there was enmity between the parties inasmuch as litigations were pending ; that the two eye witnesses satbir singh, pw - 3, and mahinder singh, pw - 7, are natural witnesses and their testimony could not be discarded solely because of their relationship with the deceased ; that their evidence is unimpeachable and the contradictions being minor do not create any dent in their version ; that the medical evidence assuredly corroborates the ocular testimony of the eye witnesses ; that the defective and tilted investigation would not corrode the evidence brought on record which prove the case of the prosecution to the hilt and, eventually, gave the stamp of approval to the verdict of the trial court. 7. mr. ram niwas kush, learned counsel appearing for the appellants, has urged that there is delay in lodging of the fir inasmuch though the occurrence took place about 3. 00 p. m., yet the fir was not lodged till 7. 45 p. m. and in the backdrop of enmity there was ample time to think, add and embellish the versions, apart from roping in number of persons, which creates a grave suspicion in the whole case put forth by the prosecution. learned counsel would contend that the evidence brought on record do not remotely prove that a tractor has made to run over certain parts of the body of the deceased as alleged by the prosecution and, therefore, both the courts have fallen into error by recording the conviction. the last plank of submission is that all the accused persons could not have been convicted under section 302 ipc in aid of section 149 ipc. 8. mr. ramesh kumar, learned counsel for the state, supported the conviction and the sentences recorded by the trial court

which has been concurred with by the high court, on the ground that the fir was lodged in quite promptitude and the appreciation of evidence by both the courts is absolutely flawless. 9. first, we shall deal with the contention pertaining to delay in lodging of the fir. it is not in dispute that the occurrence took place about 3. 00 p. m. and thereafter, the deceased was carried by a merchandised cart to the primary health centre where he was administered some treatment but he succumbed to his injuries. on being informed by the hospital staff, the police arrived at the hospital and recorded the statement of the informant, satbir singh, pw - 3, and thereafter an fir was registered at 7. 45 p. m. from the sequence of the events which include consumption of time in carrying the injured to the hospital, treatment availed of by prabhu dayal, information given by the concerned authority of the primary health centre and arrival of police and also taking note of the distance, i. e., 24 kilometers from the place of occurrence, we do not think that there is any delay in lodging of the fir. that apart, it is settled in law that mere delay in lodging the first information report cannot by itself be regarded as fatal to the prosecution case. true it is, the court has a duty to take notice of the delay and examine the same in the backdrop of the factual score, whether there has been any acceptable explanation offered by the prosecution and whether the same deserves acceptation being satisfactory, but when delay is satisfactorily explained, no adverse inference is to be drawn. it is to be seen whether there has been possibility of embellishment in the prosecution version on account of such delay. these principles have been stated in meharaj singh v. state of u. p. [ 1 ], state of h. p. v. gian chand [ 2 ], ramdas and others v. state of maharashtra [ 3 ], kilakkatha parambath sasi and others v. state of kerala [ 4 ] and kanhaiya lal and others v. state of rajasthan [ 5 ]. 10. in the present case, as we find, there is, in fact, no delay. learned counsel for the appellants would emphasise on the concept that effort has to be made to lodge the report at the earliest, but the earliest, according to us, cannot be put

in the compartment of absolute precision. apart from what we have stated, the impact of the crime on the relations who are eye witnesses, the shock and panic which would rule supreme at the relevant time and other ancillary aspects are also to be kept in mind. that apart, as we notice, the fir is not the result of any embellishment which has the roots in any kind of afterthought. considering the totality of facts and circumstances the submission of learned counsel for the appellants pertaining to delay in lodging of the fir being totally unacceptable is hereby rejected. 11. the next limb of submission is that the evidence brought on record do not establish beyond doubt that the accused om prakash had run a tractor on the deceased. in this context, satbir singh, pw - 3, and mahinder singh, pw - 7, the elder brothers of the deceased, have categorically deposed that the accused persons had given blows with lathis and om prakash had run the tractor over the deceased. dr. jindal, pw - 4, who had examined the deceased prior to death, had found 11 injuries on his body. he had not expressed any opinion on injury nos. 1, 2, 4, 5 and 8 and observed that final opinion would be expressed after x - ray had been done. in examination - in - chief, referring to his opinion, ex. pk / 1, he has stated that injuries on both legs and arms on the person of the deceased could be caused by tractor wheels and the other injuries could be caused by lathi blows. in the cross - examination barring that he had not found the tyre mark on the pyjama of the injured nothing substantial has been elicited. 12. dr. partap singh, pw - 1, who conducted the autopsy, had found the following injuries : - 1. a stitched wound 1 long on the right side of parental region one inch above the hair line. on exploration, there was extra vacation of blood in layers scalp. the wound was superficial. 2. a scabbed abrasion 1 x 1 on the right cheek. it was red in colour. 3. multiple contusions of various sizes and shape, covering the back of chest and abdomen. reddish in colour. 4. a stitched wound long on the back of upper arm on right thigh. wound was bone deep. 5. multiple contusions covering the upper half of right

fore - 6. a lacerated wound inch long and wide, and bone deep present on the upper part of left fore - arm. 7. a stitched wound 1 long on the back of middle of left upper arm. clotted blood was present. 8. multiple contusions covering the lower part of left upper arm, elbow and upper part of left fore - arm, reddish in colour. the underlying bones ( upper part of left radius, ulna and lower part of left humorous ) were fractured. 9. a lacerated and stitched wound 1 long present on the left of leg on its middle. clotted blood was present. the underlying bones were fractured. 10. a lacerated and stitched wound 1 long present just medial to injury no. 9, clotted blood was present. 11. a lacerated and stitched wound 2 long, present on the front of lower one third of right leg. 12. a stitched wound 1 long, 2 inch lateral to injury no. 11 clotted blood was present. 13. a stitched wound 1 long present 1 medial to injury no. 11. clotted blood was present. 13. in his examination - in - chief he has clearly stated that some of the injuries could have been caused by the relevant organ of the body / struck by a blunt countering by the wheel of a tractor. the submission of the learned counsel for the appellants is that there is no clear cut opinion by the two doctors and, in fact, there is an irreconcilable contradiction which would show that no injury was caused by running over of a tractor falsifying the case of the prosecution. the said submission leaves us unimpressed inasmuch as we really do not find that there is any contradiction of that nature which would cause a concavity in the version of the prosecution. as we find, the ocular testimony has been corroborated by the medical evidence to a major extent in that regard and hence, it would be inappropriate to discard the prosecution case. that apart, the mental condition of the witnesses can be well appreciated and, in any case, they were not expected to state with exactitude how the injuries were caused by the tractor. from the evidence of dr. jindal, pw - 4, it is evincible that the injuries sustained by the deceased on his legs and arms could have been caused by the tractor wheels. similar is the opinion of dr. partap singh, pw -

1 and in the cross - examination he has explained why crush injuries were not there. it is also worthy to mention that nothing has been elicited in the cross - examination of the eye witnesses on that score. in fact, no suggestion has also been given. it has come out in the evidence that all the accused persons had carried lathis and most of the injuries were caused due to lathi blows and some by the tractor. thus, the ocular testimony gets corroboration from the medical evidence, and, therefore, the stance that the prosecution witnesses have made an effort to exaggerate their version ascribing a serious role to om prakash, in our considered opinion, is mercurial and deserves to be repelled and we do so. 14. it is next submitted by learned counsel for the appellants that the so called eye witnesses have not ascribed any specific overt act to each of the accused and there are only spacious allegations that they were armed with lathis and inflicted injuries on the deceased. in essence, the submission is that in the absence of any specific ascription or attribution of any particular role specifically to each of the accused section 149 ipc would not be attracted. in this regard, we may refer to a passage from baladin and others v. state of uttar pradesh [ 6 ] wherein a three - judge bench had opined thus : - it is well settled that mere presence in an assembly does not make such a person a member of an unlawful assembly unless it is shown that he had done something or omitted to do something which would make him a member of an unlawful assembly, or unless the case falls under section 142, indian penal code. 15. the aforesaid enunciation of law was considered by a four - judge bench in masalti v. the state of uttar pradesh [ 7 ] which distinguished the observations made in baladin ( supra ) on the foundation that the said decision should be read in the context of the special facts of the case and may not be treated as laying down an unqualified proposition of law. the four - judge bench, after enunciating the principle, stated as follows : - it would not be correct to say that before a person is held to be a member of an unlawful assembly, it must be shown that he had committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object of the assembly. in fact, s.

149 make it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of the assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of committing of that offence, is a member of the same assembly, is guilty of that offence ; and that emphatically brings out the principle that the punishment prescribed by s. 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly. 16. common object of an unlawful assembly can also be gathered from the nature of the assembly, the weapons used by its members and the behavior of the assembly at or before the scene of occurrence. it cannot be stated as a general proposition of law that unless an overt act is proven against the person who is alleged to be a member of the unlawful assembly, it cannot be held that he is a member of the assembly. what is really required to be seen is that the member of the unlawful assembly should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of section 141 ipc. the core of the offence is the word object which means the purpose or design and in order to make it common, it should be shared by all. needless to say, the burden is on the prosecution. it is required to establish whether the accused persons were present and whether they shared the common object. it is also an accepted principle that number and nature of injuries is a relevant fact to deduce that the common object has developed at the time of incident. ( see lalji v. state of u. p. [ 8 ], bhargavan and others v. state of kerala [ 9 ], debashis daw and others v. state of west bengal [ 10 ] and ramachandran and others v. state of kerala [ 11 ] ). 17. in the case at hand, as the evidence would clearly show, all the accused persons had come together armed with lathis. het ram, who died during the pendency of the appeal, was armed with a gun. the eye witnesses who are natural witnesses, being brothers, have deposed in an unequivocal manner about the assault by all the accused persons. the common object is clearly evident. in such a situation, attribution of specific individual overt act has no role to play. all the requisite tests

to attract section 149 ipc have been established by the prosecution. 18. in view of our aforesaid analysis, as all the contentions raised by the learned counsel for the appellants are sans substratum, the appeals, being devoid of merit, stand dismissed... j. [ k. s. radhakrishnan ].. j. [ dipak misra ] new delhi ; april 16, 2014. - - - - - - - - - - - - - - - - - - - - - - -

ranjan gogoi, j. 1. leave, as prayed for, is granted in both the matters. 2. the two appeals are by the state of bihar against separate orders ( dated 23. 03. 2012 and 03. 03. 2011 ) passed by the high court of patna, the effect of which is that the criminal proceedings instituted against the respondents under different provisions of the indian penal code as well as the prevention of corruption act, 1988 have been interdicted on the ground that sanction for prosecution of the respondents in both the cases has been granted by the law department of the state and not by the parent department to which the respondents belong. 3. a short and interesting question, which is also of considerable public importance, has arisen in the appeals under consideration. before proceeding further it will be necessary to take note of the fact that in the appeal arising out of slp ( crl. ) no. 8013 of 2012 the challenge of the respondent - writ petitioner before the high court to the maintainability of the criminal proceeding registered against him is subtly crafted. the criminal proceeding, as such, was not challenged in the writ petition and it is only the order granting sanction to prosecute that had been impugned and interfered with by the high court. the resultant effect, of course, is that the criminal proceeding stood interdicted. in the second case ( slp ( crl. ) nos. 159 - 160 / 2013 ) the maintainability of the criminal case was specifically under challenge before the high court on the ground that the order granting sanction is invalid in law. notwithstanding the above differences in approach discernible in the proceedings instituted before the high court, the scrutiny in the present appeals will have to be from the same standpoint, namely, the circumference of the court s power to interdict a criminal proceeding midcourse on the basis of the legitimacy or otherwise of the order of sanction to prosecute. 4. though learned counsels for both sides have elaborately taken us through the materials on record including the criminal complaints lodged against the respondents ; the pleadings made in support of the challenge before the high court, the respective sanction orders as well as the relevant provisions of the rules of executive business, we do not consider it necessary to traverse the said facts in view of the short question of law arising which may be summed up as follows : - 5. the object behind the requirement of grant of sanction to prosecute a public servant need not detain the court save and except to reiterate

that the provisions in this regard either under the code of criminal procedure or the prevention of corruption act, 1988 are designed as a check on frivolous, mischievous and unscrupulous attempts to prosecute a honest public servant for acts arising out of due discharge of duty and also to enable him to efficiently perform the wide range of duties cast on him by virtue of his office. the test, therefore, always is whether the act complained of has a reasonable connection with the discharge of official duties by the government or the public servant. if such connection exists and the discharge or exercise of the governmental function is, prima facie, founded on the bonafide judgment of the public servant, the requirement of sanction will be insisted upon so as to act as a filter to keep at bay any motivated, ill - founded and frivolous prosecution against the public servant. however, realising that the dividing line between an act in the discharge of official duty and an act that is not, may, at times, get blurred thereby enabling certain unjustified claims to be raised also on behalf of the public servant so as to derive undue advantage of the requirement of sanction, specific provisions have been incorporated in section 19 ( 3 ) of the prevention of corruption act as well as in section 465 of the code of criminal procedure which, inter alia, make it clear that any error, omission or irregularity in the grant of sanction will not affect any finding, sentence or order passed by a competent court unless in the opinion of the court a failure of justice has been occasioned. this is how the balance is sought to be struck. 6. for clarity it is considered necessary that the provisions of section 19 of the p. c. act and section 465 of the cr. p. c. should be embodied in the present order : - section 19 of the pc act 19. previous sanction necessary for prosecution. ( 1 ) no court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction, a ) in the case of a person who is employed in connection with the affairs of the union and is not removable from his office save by or with the sanction of the central government, of that government ; b ) in the case of a person who is employed in connection with the affairs of a state and is not removable from his office save by or with the sanction of the state government, of that government ; c ) in the case of any other person,

of the authority competent to remove him from his office. 2 ) where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub - section ( 1 ) should be given by the central government or the state government or any other authority, such sanction shall be given by that government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed. 3 ) notwithstanding anything contained in the code of criminal procedure, 1973 ( 2 of 1974 ), a ) no finding, sentence or order passed by a special judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub - section ( 1 ), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby ; b ) no court shall stay the proceedings under this act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice ; c ) no court shall stay the proceedings under this act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings. 4 ) in determining under sub - section ( 3 ) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings. explanation. for the purposes of this section, a ) error includes competency of the authority to grant sanction ; b ) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature. section 465 of cr. p. c. 465. finding or sentence when reversible by reason of error, omission or irregularity. ( 1 ) subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered by a court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this code, or any error, or

irregularity in any sanction for the prosecution, unless in the opinion of that court, a failure of justice has in fact been occasioned thereby. ( 2 ) in determining whether any error, omission or irregularity in any proceeding under this code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. ( emphasis is ours ) 7. in a situation where under both the enactments any error, omission or irregularity in the sanction, which would also include the competence of the authority to grant sanction, does not vitiate the eventual conclusion in the trial including the conviction and sentence, unless of course a failure of justice has occurred, it is difficult to see how at the intermediary stage a criminal prosecution can be nullified or interdicted on account of any such error, omission or irregularity in the sanction order without arriving at the satisfaction that a failure of justice has also been occasioned. this is what was decided by this court in state by police inspector vs. t. venkatesh murthy [ 1 ] wherein it has been inter alia observed that, 14. merely because there is any omission, error or irregularity in the matter of according sanction, that does not affect the validity of the proceeding unless the court records the satisfaction that such error, omission or irregularity has resulted in failure of justice. 8. the above view also found reiteration in prakash singh badal and another vs. state of punjab and others [ 2 ] wherein it was, inter alia, held that mere omission, error or irregularity in sanction is not to be considered fatal unless it has resulted in failure of justice. in prakash singh badal ( supra ) it was further held that section 19 ( 1 ) of the pc act is a matter of procedure and does not go to the root of jurisdiction. on the same line is the decision of this court in r. venkatkrishnan vs. central bureau of investigation [ 3 ]. in fact, a three judge bench in state of madhya pradesh vs. virender kumar tripathi [ 4 ] while considering an identical issue, namely, the validity of the grant of sanction by the additional secretary of the department of law and legislative affairs of the government of madhya pradesh instead of the authority

in the parent department, this court held that in view of section 19 ( 3 ) of the pc act, interdicting a criminal proceeding mid - course on ground of invalidity of the sanction order will not be appropriate unless the court can also reach the conclusion that failure of justice had been occasioned by any such error, omission or irregularity in the sanction. it was further held that failure of justice can be established not at the stage of framing of charge but only after the trial has commenced and evidence is led ( para 10 of the report ). 9. there is a contrary view of this court in state of goa vs. babu thomas [ 5 ] holding that an error in grant of sanction goes to the root of the prosecution. but the decision in babu thomas ( supra ) has to be necessarily understood in the facts thereof, namely, that the authority itself had admitted the invalidity of the initial sanction by issuing a second sanction with retrospective effect to validate the cognizance already taken on the basis of the initial sanction order. even otherwise, the position has been clarified by the larger bench in state of madhya pradesh vs. virender kumar tripathi ( supra ). 10. in the instant cases the high court had interdicted the criminal proceedings on the ground that the law department was not the competent authority to accord sanction for the prosecution of the respondents. even assuming that the law department was not competent, it was still necessary for the high court to reach the conclusion that a failure of justice has been occasioned. such a finding is conspicuously absent rendering it difficult to sustain the impugned orders of the high court. 11. the high court in both the cases had also come to the conclusion that the sanction orders in question were passed mechanically and without consideration of the relevant facts and records. this was treated as an additional ground for interference with the criminal proceedings registered against the respondents. having perused the relevant part of the orders under challenge we do not think that the high court was justified in coming to the said findings at the stage when the same were recorded. a more appropriate stage for reaching the said conclusion would have been only after evidence in the cases had been led on the issue in question. 12. we, therefore, hold that the orders dated 23. 03. 2012 and 03. 03. 2011 passed by the high court cannot be sustained in law. we, therefore, allow both the appeals ; set aside the said orders and direct that the criminal proceeding against each of

the respondents in the appeals under consideration shall now commence and shall be concluded as expeditiously as possible.... cji. [ p. sathasivam ]......... j. [ ranjan gogoi ] new delhi, march 31, 2014. - - - - - - - - - - - - - - - - - - - - - - -

dipak misra, j. leave granted. the two issues that pronouncedly emanate in this appeal by special leave are whether the family court while deciding an application under section 7 of the family court act, 1984 ( for brevity, the act ) which includes determination of grant of maintenance to the persons as entitled under that provision, should allow adjournments in an extremely liberal manner remaining oblivious of objects and reasons of the act and also keeping the windows of wisdom closed and the sense of judicial responsiveness suspended to the manifest perceptibility of vagrancy, destitution, impecuniosity, struggle for survival and the emotional fracture, a wife likely to face under these circumstances and further exhibiting absolute insensitivity to her condition, who, after loosing support of the husband who has failed to husband the marital status denies the wife to have maintenance for almost nine years as that much time is consumed to decide the lis and, in addition, to restrict the grant of maintenance to the date of order on some kind of individual notion. both the approaches, as we perceive, not only defeat the command of the legislature but also frustrate the hope of wife and children who are deprived of adequate livelihood and whose aspirations perish like mushroom and possibly the brief candle of sustenance joins the marathon race of extinction. this delay in adjudication by the family court is not only against human rights but also against the basic embodiment of dignity of an individual. be it ingeminated that section 125 of the code of criminal procedure ( for short the code ) was conceived to ameliorate the agony, anguish, financial suffering of a woman who left her matrimonial home for the reasons provided in the provision so that some suitable arrangements can be made by the court and she can sustain herself and also her children if they are with her. the concept of sustenance does not necessarily mean to lead the life of an animal, feel like an unperson to be thrown away from grace and roam for her basic maintenance somewhere else. she is entitled in law to lead a life in the similar manner as she would have lived in the house of her husband. that is where the status and strata come into play, and that is where the obligations of the husband, in case of a wife, become a prominent one. in a proceeding of this nature, the husband cannot take subterfuges to deprive her of the benefit of living with dignity. regard being had to the solemn pledge

at the time of marriage and also in consonance with the statutory law that governs the field, it is the obligation of the husband to see that the wife does not become a destitute, a beggar. a situation is not to be maladroitly created whereunder she is compelled to resign to her fate and think of life dust unto dust. it is totally impermissible. in fact, it is the sacrosanct duty to render the financial support even if the husband is required to earn money with physical labour, if he is able bodied. there is no escape route unless there is an order from the court that the wife is not entitled to get maintenance from the husband on any legally permissible grounds. presently to the facts which lie in an extremely small compass. the marriage between the appellant and the husband was solemnized on 27. 11. 1997 as per hindu rites and ritual, and in the wedlock a son was born on 16. 12. 1998. the respondent, under certain circumstances, had to leave the marital home and thereafter filed an application on 28. 8. 2002 under section 125 of the code in the family court, jaipur, rajasthan, claiming rs. 6000 / - per month towards maintenance. the family court finally decided the matter on 24. 8. 2011 awarding monthly maintenance of rs. 2500 / - to the respondent - wife and rs. 1500 / - to the second respondent - son. be it stated, during the continuance of the family court proceedings, number of adjournments were granted, some taken by the husband and some by the wife. the learned family judge being dissatisfied with the material brought on record came to hold that the respondent - wife was entitled to maintenance and, accordingly, fixed the quantum and directed that the maintenance to be paid from the date of the order. being dissatisfied with the aforesaid order the respondent - wife preferred s. b. criminal revision petition no. 1526 of 2011 before the high court of judicature at rajasthan and the learned single judge, vide order dated 28. 5. 2012, noted the contention of the wife that the maintenance should have been granted from the date of application, and that she had received nothing during the proceedings and suffered immensely and, eventually, directed that the maintenance should be granted from the date of filing of the application. criticizing the aforesaid order, it is submitted mr. jay kishor singh learned counsel for the appellant that when number of adjournments

were sought by the wife, grant of maintenance from the date of filing of the application by the high court is absolutely illegal and unjustified. it is his submission that the wife cannot take advantage of her own wrong. mr. mohit paul, learned counsel for the respondents would submit that the family court adjourned the matter sometimes on its own and the enormous delay took place because of non - cooperation of the husband in the proceedings and, therefore, the wife who was compelled to sustain herself and her son with immense difficulty should not be allowed to suffer. it is proponed by him that the high court by modifying the order and directing that the maintenance should be granted from the date of filing of the application has not committed any legal infirmity and hence, the order is inexceptionable. at the outset, we are obliged to reiterate the principle of law how a proceeding under section 125 of the code has to be dealt with by the court, and what is the duty of a family court after establishment of such courts by the family courts act, 1984. in smt. dukhtar jahan v. mohammed farooq [ 1 ], the court opined that proceedings under section 125 of the code, it must be remembered, are of a summary nature and are intended to enable destitute wives and children, the latter whether they are legitimate or illegitimate, to get maintenance in a speedy manner. a three - judge bench in vimla ( k. ) v. veeraswamy ( k. ) [ 2 ], while discussing about the basic purpose under section 125 of the code, opined that section 125 of the code is meant to achieve a social purpose. the object is to prevent vagrancy and destitution. it provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. a two - judge bench in kirtikant d. vadodaria v. state of gujarat and another [ 3 ], while adverting to the dominant purpose behind section 125 of the code, ruled that : while dealing with the ambit and scope of the provision contained in section 125 of the code, it has to be borne in mind that the dominant and primary object is to give social justice to the woman, child and infirm parents etc. and to prevent destitution and vagrancy by compelling those who can support those who are unable to support themselves but have a moral claim for support. the provisions

in section 125 provide a speedy remedy to those women, children and destitute parents who are in distress. the provisions in section 125 are intended to achieve this special purpose. the dominant purpose behind the benevolent provisions contained in section 125 clearly is that the wife, child and parents should not be left in a helpless state of distress, destitution and starvation. in chaturbhuj v. sita bai [ 4 ], reiterating the legal position the court held : - section 125 crpc is a measure of social justice and is specially enacted to protect women and children and as noted by this court in captain ramesh chander kaushal v. veena kaushal [ 5 ] falls within constitutional sweep of article 15 ( 3 ) reinforced by article 39 of the constitution of india. it is meant to achieve a social purpose. the object is to prevent vagrancy and destitution. it provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. it gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. the aforesaid position was highlighted in savitaben somabhai bhatiya v. state of gujarat [ 6 ]. recently in nagendrappa natikar v. neelamma [ 7 ], it has been stated that it is a piece of social legislation which provides for a summary and speedy relief by way of maintenance to a wife who is unable to maintain herself and her children. the family courts have been established for adopting and facilitating the conciliation procedure and to deal with family disputes in a speedy and expeditious manner. a three - judge bench in k. a. abdul jaleel v. t. a. shahida [ 8 ], while highlighting on the purpose of bringing in the family courts act by the legislature, opined thus : - the family courts act was enacted to provide for the establishment of family courts with a view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith. the purpose of highlighting this aspect is that in the case at hand the proceeding before the family court was conducted without being alive to the objects and reasons of the act and the spirit of the provisions under section 125 of the code. it is unfortunate that the case continued for nine years before the family court. it

has come to the notice of the court that on certain occasions the family courts have been granting adjournments in a routine manner as a consequence of which both the parties suffer or, on certain occasions, the wife becomes the worst victim. when such a situation occurs, the purpose of the law gets totally atrophied. the family judge is expected to be sensitive to the issues, for he is dealing with extremely delicate and sensitive issues pertaining to the marriage and issues ancillary thereto. when we say this, we do not mean that the family courts should show undue haste or impatience, but there is a distinction between impatience and to be wisely anxious and conscious about dealing with a situation. a family court judge should remember that the procrastination is the greatest assassin of the lis before it. it not only gives rise to more family problems but also gradually builds unthinkable and everestine bitterness. it leads to the cold refrigeration of the hidden feelings, if still left. the delineation of the lis by the family judge must reveal the awareness and balance. dilatory tactics by any of the parties has to be sternly dealt with, for the family court judge has to be alive to the fact that the lis before him pertains to emotional fragmentation and delay can feed it to grow. we hope and trust that the family court judges shall remain alert to this and decide the matters as expeditiously as possible keeping in view the objects and reasons of the act and the scheme of various provisions pertaining to grant of maintenance, divorce, custody of child, property disputes, etc. while dealing with the relevant date of grant of maintenance, in shail kumari devi and another v. krishan bhagwal pathak alias kishun b. pathak [ 9 ], the court referred to the code of criminal procedure ( amendment ) act, 2001 ( act 50 of 2001 ) and came to hold that even after the amendment of 2001, an order for payment of maintenance can be paid by a court either from the date of order or when express order is made to pay maintenance from the date of application, then the amount of maintenance may be paid from that date, i. e., from the date of application. the court referred to the decision in krishna jain v. dharam raj jain [ 10 ] wherein it has been stated that to hold that, normally maintenance should be made payable from the date

of the order and not from the date of the application unless such order is backed by reasons would amount to inserting something more in the sub - section which the legislature never intended. the high court had observed that it was unable to read in sub - section ( 2 ) laying down any rule to award maintenance from the date of the order or that the grant from the date of the application is an exception. the high court had also opined that whether maintenance is granted from the date of the order or from the date of application, the court is required to record reasons as required under sub - section ( 6 ) of section 354 of the code. after referring to the decision in krishna jain ( supra ), the court adverted to the decision of the high court of andhra pradesh in k. sivaram v. k. mangalamba [ 11 ] wherein it has been ruled that the maintenance would be awarded from the date of the order and such maintenance could be granted from the date of the application only by recording special reasons. the view of the learned single judge of the high court of andhra pradesh stating that it is a normal rule that the magistrate should grant maintenance only from the date of the order and not from the date of the application for maintenance was not accepted by this court. eventually, the court ruled thus : - 43. we, therefore, hold that while deciding an application under section 125 of the code, a magistrate is required to record reasons for granting or refusing to grant maintenance to wives, children or parents. such maintenance can be awarded from the date of the order, or, if so ordered, from the date of the application for maintenance, as the case may be. for awarding maintenance from the date of the application, express order is necessary. no special reasons, however, are required to be recorded by the court. in our judgment, no such requirement can be read in sub - section ( 1 ) of section 125 of the code in absence of express provision to that effect. in the present case, as we find, there was enormous delay in disposal of the proceeding under section 125 of the code and most of the time the husband had taken adjournments and some times the court dealt with the matter showing total laxity. the wife sustained herself as far as she could in that state for a period of nine years. the circumstances, in our considered opinion, required grant of maintenance from the date of application and by so granting the high court has not committed any legal infirmit

##y. hence, we concur with the order of the high court. however, we direct, as prayed by the learned counsel for the respondent, that he may be allowed to pay the arrears along with the maintenance awarded at present in a phased manner. learned counsel for the appellant did not object to such an arrangement being made. in view of the aforesaid, we direct that while paying the maintenance as fixed by the learned family court judge per month by 5th of each succeeding month, the arrears shall be paid in a proportionate manner within a period of three years from today. consequently, the appeal, being devoid of merits, stands dismissed.............................. j. [ dipak misra ]............................. j. [ v. gopala gowda ] new delhi ; july 15, 2014. - - - - - - - - - - - - - - - - - - - - - - -

m. y. eqbal, j. : 1. this appeal is directed against the judgment and order dated 28. 3. 2005 passed by calcutta high court in s. a. no. 244 of 1987 whereby the judgment and decree passed by the trial court as also the appellate court has been reversed and the suit was dismissed holding that the suit itself was barred by limitation and lack of relevant pleading and evidence disentitle the plaintiff - appellant to get a decree for 1 page 1 specific performance and for re - conveyance of the suit property. 2. the facts of the case lie in a narrow compass. 3. the plaintiffs - appellants in need of money took a loan of rs. 3, 000 / - from the defendants - respondents and executed a registered kobala dated 24. 11. 1964. on the same day, a registered ekrarnama was also executed between the parties stipulating the terms of re - conveyance on payment of the loan amount by the appellants to the respondents. 4. in the year 1970, the appellants filed a suit being title suit no. 215 of 1970 against the defendants before the sub - divisional munsif, bangaon under section 36 of the bengal money lenders act, 1940. the said suit was resisted by the defendants - respondents, stating therein that the aforesaid sale deed executed by the plaintiffs was out an out - sale of the suit property and possession was also delivered to the respondents. the learned munsif in terms of the judgment dated 20. 12. 1973 dismissed the suit. the plaintiffs then filed 2 page 2 appeal against the said judgment being title appeal no. 350 of 1974. the learned additional district judge, upon hearing the parties, allowed the appeal and remanded the matter back to the trial court with a direction to the trial court to allow the plaintiffs - appellants an opportunity for amending the plaint and to add prayer for specific performance of the contract and to pass fresh judgment in accordance with law. 5. consequent upon the remand, the appellants amended the plaint by filing application on 1. 3. 1975 adding prayer for specific performance of contract to transfer the suit property in terms of the agreement for re - conveyance. the said application for amendment was allowed and the learned munsif framed additional issues, and after considering the evidence on record finally decreed the suit holding that the suit was not barred by limitation. the court of munsif held that the order for amendment related back to the date of institution of the suit and, therefore, the suit cannot be

held to be barred by limitation. aggrieved by the said judgment 3 page 3 and decree, the defendants - respondents filed appeal being title appeal no. 836 of 1983, which was dismissed on merit by the first appellate court. the respondents then filed second appeal, which was finally allowed in favour of the defendant - respondents and the judgment and decree passed by both the courts of munsif and the additional district judge have been set aside. hence, this appeal by special leave by the plaintiff - appellants. 6. from the impugned judgment passed by the high court it appears that the high court formulated the following substantial questions of law and considered the same while allowing the appeal : page 44 ) whether the amendment as prayed for was rightly allowed and whether on the basis of the said amendment both the courts below rightly decreed the suit. 7. before we proceed with the matter, it would be proper to first go through the judgment of remand passed by the additional district judge in first round of appeal being title appeal no. 350 of 1974, which was preferred against the judgment passed by munsif dismissing the suit of the plaintiffs - appellants. from perusal of the judgment, it reveals that both parties made their submission on the interpretation of two documents, namely kobala and the agreement of re - conveyance. it also reveals that there were exchange of letters ( exhibit b and b1 ) whereupon the defendants - respondents in the reply letter expressed their willingness to reconvey the land but after harvest of aushpaddy on the suit land. thereafter, the plaintiff issued another letter dated 6. 6. 1968 agreeing to have conveyance of the suit land after harvest on payment of rs. 3000 / - ( exhibit b2 ). the defendant also replied to such letter 5 page 5 ( exhibit b3 ) agreeing to reconvey the suit land after the harvest. 8. on the basis of these exchanges of letters and in the facts and circumstances of the case, the appellate court held that the plaintiff - appellants should be given opportunity to have specific performance of contract in terms of the agreement. the relevant portion of the finding and the order passed in the appeal is extracted hereinbelow : the evidence on record does not speak for the fact that the plaintiffs are keen to treat the transaction as a loan under the 6 page 6 provision of bengal money lenders act. they are, on the other hand, keen to fall back upon the agreement of repurchase ext. 1. but the suit has been framed as one under section 36 of bengal

money lenders act and as such no relief can be given to the plaintiffs by way of specific performance. so far the end of justice the plaintiff should be given an opportunity to include a prayer for specific performance of contract by effecting amendment of the plaint appropriately and on payment of the requisite court fees and on compliance with the formalities of a suit for specific performance. the learned advocate for the respondents has objected to giving of such opportunity to the plaintiffs as the proposed amendment will alter the nature of the suit. i do not think so. the main prayer of the plaintiffs is for restoration of the land in terms of the agreement either by reopening the 7 page 7 transaction or by specific performance of contract. considering all these, i for the ends of justice remand the suit for giving the plaintiffs an opportunity to amend the plaint in the light of observation made above in my judgment. the result the appeal succeeds. memo of appeal is correctly stamped. hence, ordered that the appeal be allowed on contest without costs. the judgment and decree of the learned munsif are hereby set aside. the suit be remanded to the trial court for allowing the plaintiff an opportunity to amend the plaint for making a prayer for specific performance of contract. the plaintiff shall pay a cost of rs. 30 / - ( rupees thirty ) to the defendants for making such amendment. the defendants shall get opportunity to file additional written statement. the amendment shall be effected within two months from the 8 page 8 receipt of record of this suit. in default, the plaintiffs suit shall stands dismissed. after the amendment the learned munsif shall decide the suit on taking further evidence if the parties like to adduce and on the basis of evidence on record in terms of the added prayer of the plaintiffs. 9. from the finding recorded by the additional district judge in the aforementioned judgment of remand, it is evidently clear that a direction was issued to the learned munsif to allow the plaintiff to amend the plaint on payment of cost of rs. 30 / -. the appellate court also gave opportunity to the defendants - respondents for filing additional written statement. 10. in terms of the aforesaid judgment, the plaint was amended and a relief for a decree of specific performance was added in the said suit. the learned munsif, after framing additional issue and considering the facts and evidence on 9 page 9 record, decreed the suit for specific performance holding that the suit was not barred by limitation. while passing the decree, the plaintiff - appellant was directed to deposit consideration amount of r

##s. 3, 000 / -. 11. learned munsif held that after the amendment was allowed and relief for decree of specific performance was added, it should be deemed that the suit for specific performance was filed on the date of institution of the suit i. e. 7. 5. 1970. 12. aggrieved by the said judgment and decree passed by the munsif, the defendants - respondents preferred an appeal being title appeal no. 836 of 1983. the said appeal was heard and finally dismissed by the first appellate court holding that the suit was well within the period of limitation and it was not barred by limitation inasmuch as the amendment of the plaint related back to the date of the presentation of the plaint. page 1013. the defendants - respondents then assailed the judgment by filing second appeal being s. a. no. 244 of 1987. the high court, as stated above, reversed the finding given by the trial court and the appellate court and set aside the same by allowing the appeal. 14. from perusal of the judgment passed by the high court, it reveals that the high court, after referring section 16 and section 20 of the specific relief act and relying on the decision of the supreme court, came to the conclusion that since the readiness and willingness have not been averred and proved, both the trial court and first appellate court committed error in decreeing the suit for specific performance. the high court further observed that by converting a suit under section 36 of the bengal money lenders act into a suit for specific performance, basically the nature and character of the suit was changed and such amendments have been wrongly allowed in favour of the plaintiffs - appellants. page 1115. mr. s. b. sanyal, learned senior counsel appearing for the appellant, vehemently contended that the impugned judgment of the high court is vitiated in law for not following the mandatory requirements of section 100 of the code of civil procedure ( in short code ). as a matter of fact, the high court has adopted wrong procedure in dealing with the second appeal. 16. mr. sanyal further contended that the high court while entertaining the appeal for admission has to formulate substantial question of law involved in the said appeal for consideration and only after giving notice to the respondents an opportunity of hearing on those substantial questions of law, shall finally decide the appeal. in this connection, learned senior counsel relied upon the decision of this court in the cases of sasikumar & ors vs.

kunnath chellappan nair & ors., ( 2005 ) 12 scc 588 and gurdev kaur & ors. vs. kaki & ors., ( 2007 ) 1 scc 546. we find force in the submission of mr. sanyal. page 1217. section 100 of the code lays down the provision with regard to second appeal which reads as under : - 18. from bare reading of the aforesaid provision it is manifestly clear that an appeal shall lie to the high court 13 page 13 from an appellate decree only if the high court is satisfied that the case involves a substantial question of law. it further mandates that the memorandum of appeal precisely states the substantial question of law involved in the appeal. if such an appeal is filed, the high court while admitting or entertaining the appeal must record its satisfaction and formulate the substantial question of law involved in the appeal. the appeal shall then be heard on the questions so formulated and the respondent shall be allowed to argue only on those substantial questions of law. however, proviso to this section empowers the court to hear on any substantial question of law not formulated after recording reasons. 19. order xli, rule ( 3 ) of the code is also worth to be quoted hereinbelow : - 3. rejection or amendment of memorandum : - ( 1 ) where the memorandum of appeal is not drawn up in the manner hereinbefore prescribed, it may be rejected, or be returned to the appellant for the purpose of being amended within a time to be fixed by the court or be amended then and there. page 14 ( 2 ) where the court rejects any memorandum, it shall record the reasons for such rejection. ( 3 ) where a memorandum of appeal is amended, the judge, or such officer as he appoints in this behalf, shall sign or initial the amendment. 20. it is, therefore, clear that if a memorandum of appeal arising out from an appellate decree is not drawn up in the manner provided in the code, the court may reject the memorandum of appeal or return the same for the purposes of being amended within the time fixed by the court. 21. in the instant case what the high court has done is evident from its order dated 13. 1. 1987. the order reads as under : - this appeal will be heard on all the grounds and issue a rule and stay as prayed for 22. the aforesaid order shows that the high court while admitting the appeal has not formulated any substantial question of law and it was only

after the arguments were 15 page 15 concluded some questions of law were formulated and the appeal was decided by passing the impugned judgment. 23. the law is well settled by catena of decisions of this court that jurisdiction of the high court to entertain a second appeal is confined only to such appeals which involves substantial question of law. section 100 of the code casts a mandate on the high court to first formulate substantial question of law at the time of admission of the appeal. in other words, a duty is cast on the high court to formulate substantial question of law before hearing the appeal. since the same has not been done, the impugned judgment is vitiated in law. 24. on the question of readiness and willingness, the high court after relying upon some decisions of this court allowed the appeal and set aside the judgment and decree of the trial court and the first appellate court. the only finding recorded by the high court is extracted hereinbelow : - 25. in our considered opinion, the high court has committed error of law in setting aside the judgment and decree of the trial court and the first appellate court on the basis of aforesaid finding. 26. it is well settled proposition of law that in a suit for specific performance the plaintiff must be able to show that he is ready and willing to carry out those obligations which are in fact part of the consideration for the undertaking of 17 page 17 the defendant. for the compliance of section 16 ( c ) of the act it is not necessary for the plaintiff to aver in the same words used in the section i. e. ready and willing to perform the contract. absence of the specific words in the plaint would not result in dismissal of the suit if sufficient fact and evidence are brought on record to satisfy the court the readiness and willingness to perform his part of the contract. in the case of kedar lal seal & anr. vs. hari lal seal, air ( 39 ) 1952 sc 47, this court has held that the court would be slow to throw out the claim on mere technicality of the pleading. the court observed : 27. in the case of syed dastagir vs. t. r. gopalakrishna setty, ( 1999 ) 6 scc 337, this court dealing with a similar issue observed : page 18 9. so the whole gamut of the issue raised is, how to construe a plea specially with reference to section 16 ( c ) and what are the obligations which the plaintiff

has to comply with in reference to his plea and whether the plea of the plaintiff could not be construed to conform to the requirement of the aforesaid section, or does this section require specific words to be pleaded that he has performed or has always been ready and is willing to perform his part of the contract. in construing a plea in any pleading, courts must keep in mind that a plea is not an expression of art and science but an expression through words to place fact and law of one s case for a relief. such an expression may be pointed, precise, sometimes vague but still it could be gathered what he wants to convey through only by reading the whole pleading, depending on the person drafting a plea. in india most of the pleas are drafted by counsel hence the aforesaid difference of pleas which inevitably differ from one to the other. thus, to gather true spirit behind a plea it should be read as a whole. this does not distract one from performing his obligations as required under a statute. but to test whether he has performed his obligations, one has to see the pith and substance of a plea. where a statute requires any fact to be pleaded then that has to be pleaded maybe in any form. the same plea may be stated by different persons through different words ; then how could it be constricted to be only in any particular nomenclature or word. unless a statute specifically requires a plea to be in any particular form, it can be in any form. no specific phraseology or language is required to take such a plea. the language in section 16 ( c ) does not require any specific phraseology but only that the plaintiff must aver that he has performed or has always been and is willing to perform his part of the contract. so the compliance of readiness and willingness has to be in spirit and substance and not in letter and form. so to insist for a mechanical production of the exact words of a statute is to insist for the form rather than the essence. so the absence of form cannot dissolve an essence if already pleaded. 19 page 1928. in the case of mst. sugani vs. rameshwar das and anr., air 2006 sc 2172, this court observed that 17. it is not within the domain of the high court to investigate the grounds on which the findings were arrived at, by the last court of fact. it is true that the lower appellate court should not ordinarily reject witness accepted by the trial court in respect of credibility but

even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal, when it is found that the appellate court has given satisfactory reasons for doing so. in a case where from a given set of circumstances two inferences are possible. one drawn by the lower appellate court is binding on the high court in second appeal. adopting any other approach is not permissible. the high court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the apex court, or was based upon inadmissible evidence or arrived at without evidence. 18. if the question of law termed as a substantial question stands already decided by a larger bench of the high court concerned or by the privy council or by the federal court or by the supreme court, its merely wrong application on the facts of the case would not be termed to be a substantial question of law. where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as 20 page 20 a substantial question of law in second appeal. the mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law. but where it is found that the first appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. where the first appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal. this court in reserve bank of india vs. ramkrishna govind morey, air 1976 sc 830, held that whether the trial court should not have exercised its jurisdiction differently is not a question of law justifying interference. 29. in the case of ardeshir mama vs. flora sassoon, 55 ia ( pc ) 360, their lordships of the judicial committee observed that where the injured party sued at law for a breach, going, as in the present case, to the root of the contract, he thereby elected to treat the contract as at an end and himself as discharged from his obligations. no further performance by

him was either contemplated or had to be tendered. in a suit for specific performance, on the other hand, he treated and was required by the court to treat the contract as still subsisting. he had in that suit to allege, and if the fact was traversed, he was required to prove a continuous readiness and willingness, from the date of the contract to the time of the hearing, to perform the 21 page 21 contract on his part. failure to make good that averment brought with it the inevitable dismissal of his suit. 30. following the aforesaid principle, the pakistan supreme court in the case of maksud ali & ors. vs. eskandar ali, 16 dlr ( 1964 ) 138, observed as under : 31. in the case of cort and gee vs. the ambergate, nottingham and boston and eastern junction railway company, ( 1851 ) 17 queen's bench reports 127, the court observed that in common sense the meaning of such an averment of readiness and willingness must be that the non - completion of the contract was 22 page 22 not the fault of the plaintiffs, and that they were disposed and able to complete it if it had not been renounced by the defendants. what more can reasonably be required by the parties for whom the goods are to be manufactured? if, having accepted a part, they are unable to pay for the residue, and have resolved not to accept them, no benefit can accrue to them from a useless waste of materials and labour, which might possibly enhance the amount of damages to be awarded against them. 32. in sum and substance, in our considered opinion, the readiness and willingness of person seeking performance means that the person claiming performance has kept the contract subsisting with preparedness to fulfill his obligation and accept the performance when the time for performance arrive. 33. in the background of the principles discussed hereinbefore, we shall now consider the conduct of the plaintiffs - appellants and the act done by them in performance of their part of obligations. these may be summarized as under : page 23i ) admittedly on 1. 12. 1964, two documents were executed viz. the sale deed in favour of the defendants on payment of rs. 3, 000 / -. ii ) an agreement of re - conveyance was also executed on the same day whereby the defendants agreed to return back the property within the stipulated time ; iii ) before the expiry of the time stipulated in the deed of re - conveyance, the

plaintiffs send a notice through a lawyer informing the defendants that as per the terms of the agreement of re - conveyance the plaintiffs tendered the amount of rs. 3, 000 / - and requested them to execute the sale deed. the defendants deferred the date and time on one pretext or another. in the same notice, the plaintiffs reminded the defendants to execute the sale deed after receiving the aforesaid amount. iv ) the defendants - respondents on 29. 4. 1968 sent reply to the plaintiffs notice stating that that they are ready to execute and register the sale deed in favour of the plaintiffs, but because of the paddy grown on the land it could be done after some time. the reply dated 29. 4. 1968 is reproduced hereinbelow : notice to1. sree biswanath ghosh 24 page 242. sri guru pada ghosh3. tarak dasi ghosh of village narikela, p. o. gaighata under instructions and advice of my clients sri narendra nath ghosh, and sri harendra nath ghosh and in reply of the said notice dated 22. 4. 68. i am to intimate you that the averments and contents of the said notice under reply regarding offer of rs. 3000 / - by you and to requesting them that after harvesting of the crops after the expiry of moth of pous in respect of the land in question and to execute and register the said sale deed are altogether false. that the land in question under the said notice my clients has shown aush paddy on the 4 th day of baisak within the knowledge of you and without any objection and the said paddy seeds have grown to some extent my clients are ready to execute and register the sale deed in favour of you at our own cost after acknowledged receipt of the said amount of rs. 3000 / - from my clients within ensuring month of bhadra after harvesting the said paddy dated 29. 4. 68. sd / - rabindra nath dutta advocate 29. 4. 68 v ) the plaintiffs again sent a notice on 6. 6. 1968 referring the reply dated 29. 4. 1968 and requesting the defendants to execute the sale deed after harvesting the paddy. the said letter is also extracted hereinbelow : from : nirendranath basu, advocate, bongaon, p. o

. dt. 24 parganas to, 1. sri narendra nath ghosh ) sons of late hazari lai ghosh 25 page 252. sri harendra nath ghosh ) residents of village narikela, p. o. gaighata, dt. 24 parganas, dated at bongaon on the 6th day of june, 1968. sir, in pursuance of the letter dated 29 / 4 / 1968 sent on behalf of your advocate rabindra nath dutta under instruction of my clients sri biswanath ghosh, sri gurupada ghosh, sri tarak basi ghosh. you are informed that after harvest the'aush paddy'within the month of bhadra and within the said month acknowledged receipt a sum of rs. 3000 / - in cash from my client and execute and register a sale deed in favour of my client and deliver vacant possession in favour of my clients otherwise you will be liable for all costs and damages dated 6. 6. 68. settlement plot no. 189 of. 46 decimals. settlement plot no. 566 of. 42 decimals out of. 84 dec. settlement plot no. 416 of. 14 decimals settlement 413 of. 15 decimals. total 1. 17 acre of land. sd / - vi ) in spite of assurance, when the defendants failed to execute the sale deed, the plaintiffs filed the suit on 7. 5. 1970 before the munsif, bongaon stating therein that the plaintiffs have every right to reconvey and to take possession of the suit land. although the suit was dismissed, but in appeal the first appellate court while dismissing the appeal by judgment dated 16. 12. 1985 26 page 26 mentioned in the order that the plaintiffs have deposited the money as per directions of learned munsif before the date fixed in the judgment passed for specific performance. 34. from the aforementioned sequence of facts and events, it can be safely inferred that the plaintiffs - appellants were always ready and willing to discharge their obligation and perform their part of the agreement. in our considered opinion, the undisputed facts and events referred to hereinabove shall amount to sufficient compliance of the requirements of section 16 ( c ) of the specific relief act. 35. taking into consideration the entire facts and circumstances of the case and the law discussed hereinabove, in our considered opinion the impugned judgment passed by the high court cannot be sustained in law.

page 2736. for the aforesaid reasons, the appeal is allowed, the impugned judgment passed by the high court is set aside and the judgment and decree of the first appellate court confirming the judgment and decree passed by the munsif are restored. however, in the facts of the case, there shall be no order as to costs.. j. ( jagdish singh khehar ). j. ( m. y. eqbal ) new delhi, march 14, 2014. page 28

m. y. eqbal, j. : 1. these appeals are directed against the judgment and order dated 8. 1. 2009 passed by the punjab & haryana high court in c. w. p. no. 8864 of 2007 and also order dated 27. 3. 2009 passed in review petition no. 112 of 2009, whereby the writ petition filed by the respondent was allowed and the order dated 23. 12. 2004 passed by appellant no. 3 rejecting the application for refund of the extension fee received by the appellant in excess of the rates mentioned in rule 13 of the punjab regional and town planning and development act, 1995 ( in short 1995 act ) in the light of the judgment passed in c. w. p. no. 13648 of 1998 ( tehal singh vs. state of punjab & ors. ) along with up - to - date interest has been set aside. 2. the facts of the case lie in a narrow compass. 3. the respondent was allotted a plot of land measuring 400 square yards bearing no. 2177 at durgi road, urban estate phase - ii, ludhiana vide allotment letter dated 1. 4. 1986. in terms of allotment, the respondent was required to complete the construction of building within three years from the date of issuance of the allotment letter after getting the plans of the proposed building approved by the competent authority. the case of the respondent - writ petitioner is that there was no condition in the allotment letter for charging extension fee in the case of failure to complete construction of the building within the aforementioned period of three years nevertheless as per clause 15 of the allotment letter, the allotment was subject to the provisions of punjab estates ( development and regulation act ), 1964 and the rules and policies framed thereunder. 4. it appears that in the year 1995, the state of punjab came with the legislation known as punjab regional and town planning and development act, 1995 ( in short puda act ). by the said act, the punjab urban estate ( development and regulation ) act 1964 ( in short 1964 act ) and punjab housing development board act, 1972 were repealed. in exercise of power conferred under the act, the state government framed rules called the punjab regional and town planning and development ( general ) rules 1995 ( in short 1995 rules ) which was published vide notification dated 22nd august, 1995. rule 13 of the rules specified the time within

which the building is to be constructed. it also provides for extension of time limit subject to payment of prescribed fee mentioned therein. 5. the punjab urban planning and development authority ( in short puda ) issued a circular dated 15. 1. 1998 revising the rate of extension fee chargeable for the residential and commercial plots and by the said circular a very high rate of extension fee was proposed to be charged. the respondent from time to time deposited the extension fee so demanded by the appellant. it is alleged that an amount of rs. 1. 20 lacs has been in excess charged from the respondent. the appellant s case is that the appellant in an attempt to nullify the effect of the judgment rendered in tehal singh s case and to validate the demand of enhanced rate of extension fee purportedly framed the rules called punjab regional and town planning and development ( general ) second amendment rules, 2001 ( in short 2001 rules ) giving retrospective effect. 6. the respondent moved a writ petition being c. w. p. no. 7934 of 2004 praying inter alia for the directions to refund the excess fee charged from the respondent. it was disposed of with the directions to the appellant to reconsider the representation and to dispose of the same in the light of the order passed in c. w. p. no. 13648 of 1998 ( tehal singh s case ). in compliance with the aforesaid directions, the respondent s representation was considered and came to be rejected by the appellant vide order dated 23. 12. 2004 on the ground that in the facts and circumstances of the case the instant case was not similar to tehal singh s case. 7. the writ petition was finally heard by the punjab and haryana high court and relying on the ratio decided in tehal sing s case ( supra ) disposed of the writ petition, quashed the notice and directed the appellant to calculate the extension fee as per rule 13 of 1995 rules. for better appreciation, the concluding paragraphs 15 to 17 of the impugned order are quoted hereinbelow : - 8. we have heard mrs. rachna joshi issar, learned counsel appearing for the appellant. 9. as noticed above, the plot in question was allotted to the respondent vide an allotment letter dated 1. 4. 1986. in terms of the allotment letter, the allottee had to fulfill the terms and conditions enumerated in the said letter. the terms and conditions of the said allotment are extracted hereinbelow : - 10. further, it

is clear that the allotment of the plot was subject to the provisions contained in the 1964 act. section 10 of the act envisages provision for resumption and forfeiture of the land in case of breach of conditions of allotment. section 10 reads as under : - 11. in exercise of power conferred by 1964 act, rules were framed in the year 1965 i. e. punjab urban estate ( development and regulation ) rules, 1964. rule 14 of the said rules categorically provided that the transferee shall complete the building within three years from the date of issue of the allotment letter. in accordance with the rules and regulations of erection of the building, the time limit may be extended by the estate officer if he is satisfied that failure to complete the construction of the building within the said period was due to the reasons beyond the control of the allottee. 12. since the respondent - allottee failed to abide by the terms and conditions and did not raise construction, he was liable to pay non - construction fee / extension fee which was demanded from him in order to enable him to avoid resumption of the plot to the appellant - authority. the aforesaid demand was made by letters dated 6. 1. 1997 and 27. 10. 1999. the said letter dated 6. 1. 1997 is extracted hereinbelow : - 13. in response to the aforesaid letter dated 6. 1. 1997, the respondent agreed to pay the extension fee imposed by the estate officer of the appellant authority in order to avoid resumption / auction of the plot. 14. meanwhile, the state of punjab enacted punjab regional and town planning and development act, 1995. rules were also framed under the said act. by section 183 of 1995 act, earlier act of 1964 and punjab housing development board act, 1972 were repealed with the saving clause. 15. subsequent to the aforesaid act, by notification dated 30. 6. 1995, punjab urban development authority was established w. e. f. 1. 7. 1995 and the board stood abolished with effect from that date. many other acts were also repealed. by the said act authority was empowered to deal with the land and prescribe the fee in case where extension of period for completion of building is set for by the allottee. 16. since the high court passed the impugned order following the decision rendered by the punjab & haryana high court in tehal singh s case, it would be proper to refer the facts of that case. 17. in tehal singh vs. state of

punjab and ors. ( c. w. p. no. 13648 of 1998 ), the petitioner filed the writ petition seeking a writ for quashing certain letters demanding extension fee and striking down condition no. 19 of allotment letter, insofar as it relates to the charging of separate extension fee for non completion of construction of building. further mandamus was sought for directing the respondents to charge extension fee from the petitioner under the provisions of rule 13 of 1995 rules. the high court after referring various provisions of 1995 acts and rules made thereunder observed as under : - 18. the court further came to the following conclusions : - 19. consequently the court declared the notices demanding enhanced extension fee as illegal and ultra vires to the provisions of 1995 act under the rules made thereunder. 20. it is worth to mention here that the aforesaid judgment rendered in tehal singh s case was challenged before the supreme court in s. l. p. no. 18500 - 18501 of 1999 and was dismissed on 10. 11. 2000, but the said order of dismissal was modified by the supreme court by order dated 12. 2. 2001 in the following terms. in the facts and circumstances of the case the order does not warrant in any interference of this court. the appeals are accordingly dismissed. 21. as noticed above, the facts are quite different from the facts in tehal singh s case. in the instant case, the respondents - allottees accepted the terms and conditions of the allotment letter and possession were taken but they did not raise any construction upto 2000. there was a specific condition that non - construction of building would lead to the resumption of the said plot under the provisions of the acts and the rules. as noticed above, when the allottees did not raise construction on the plot, the demand was raised for payment of non - construction fee / extension fee in order to avoid resumption of the plot by the authority, allottee paid the extension fee. after availing the benefit of extension on payment of extension fee, the allottee sent a letter to the estate officer demanding refund of the extension fee on the basis of amended rule 13 of 1995 rules. the said demand was rejected by the estate officer by passing the reasoned order in compliance of the directions of the high court. in the facts of the instant case, we have no doubt in our mind in holding that the ratio decided in tehal singh s case will not apply in the instant case. in our considered opinion defaulting allottes of valuable plots cannot be

allowed to approbate and reprobate by first agreeing to abide by terms and conditions of allotment and later seeking to deny their liability as per the agreed terms. 22. the doctrine of approbate and reprobate is only a species of estoppel, it implies only to the conduct of parties. as in the case of estoppel it cannot operate against the provisions of a statute. ( vide c. i. t. vs. mr. p. firm maur, air 1965 sc 1216 ). it is settled proposition of law that once an order has been passed, it is complied with, accepted by the other party and derived the benefit out of it, he cannot challenge it on any ground. ( vide maharashtra state road transport corporation vs. balwant regular motor service, amravati & ors., air 1969 sc 329 ). in r. n. gosain vs. yashpal dhir, air 1993 sc 352, this court has observed as under : law does not permit a person to both approbate and reprobate. this principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage. 23. this court in sri babu ram alias durga prasad vs. sri indra pal singh ( dead ) by lrs., air 1998 sc 3021, and p. r. deshpande vs. maruti balram haibatti, air 1998 sc 2979, the supreme court has observed that the doctrine of election is based on the rule of estoppel - the principle that one cannot approbate and reprobate inheres in it. the doctrine of estoppel by election is one of the species of estoppel in pais ( or equitable estoppel ), which is a rule in equity. by that law, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. 24. the supreme court in the rajasthan state industrial development and investment corporation and anr. vs. diamond and gem development

corporation ltd. and anr., air 2013 sc 1241, made an observation that a party cannot be permitted to blow hot and cold, fast and loose or approbate and reprobate. where one knowingly accepts the benefits of a contract or conveyance or an order, is estopped to deny the validity or binding effect on him of such contract or conveyance or order. this rule is applied to do equity, however, it must not be applied in a manner as to violate the principles of right and good conscience. 25. it is evident that the doctrine of election is based on the rule of estoppel the principle that one cannot approbate and reprobate is inherent in it. the doctrine of estoppel by election is one among the species of estoppel in pais ( or equitable estoppel ), which is a rule of equity. by this law, a person may be precluded, by way of his actions, or conduct, or silence when it is his duty to speak, from asserting a right which he would have otherwise had. 26. be that as it may, so far as the instant case is concerned, the high court has totally overlooked the facts of the present case and allowed the writ petition. the impugned order, therefore, cannot be sustained in law and is hereby set aside. the appeals are accordingly allowed. however, in the facts of the case, there shall be no order as to costs.... j. ( dr. b. s. chauhan ). j. ( m. y. eqbal ) new delhi, march 14, 2014. - - - - - - - - - - - - - - - - - - - - - - -

k. s. radhakrishnan, j. 1. the vasavi co - op. housing society ltd., the first respondent herein instituted a suit no. 794 of 1988 before the city civil court, hyderabad, seeking a declaration of title over land comprising 6 acres 30 guntas in survey no. 60 / 1 and 61 of kakaguda village and recovery of the vacant possession from defendant nos. 1 to 3 and 7, the appellants herein, after removal of the structure made therein by them. the plaintiff has also sought for an injunction restraining the defendants from interfering with the above - mentioned land and also for other consequential refliefs. the city civil court vide its judgment dated 31. 07. 1996 decreed the suit, as prayed for, against which the appellants preferred c. c. c. a. no. 123 of 1996 before the high court of andhra pradesh at hyderabad. the high court also affirmed the judgment of the trial court on 6. 9. 2002, but noticed that the appellant had made large scale construction of quarters for the defence accounts department, therefore, it would be in the interest of justice that an opportunity be given to the appellants to provide alternative suitable extent of land in lieu of the scheduled suit land, for which eight months time was granted from the date of the judgment. aggrieved by the same, the union of india and others have filed the present appeal. facts2. the plaintiff s case is that it had purchased the land situated in survey nos. 60, 61 and 62 of kakaguda village from pattedar b. m. rama reddy and his sons and others during the year 1981 - 82. the suit land in question forms part of survey nos. 60 and 61. the suit land in question belonged to the family of b. venkata narasimha reddy consisting of himself and his sons anna reddy, b. v. pulla reddy and b. m. rama reddy and anna reddy s son prakash reddy. land in old survey no. 53 was allotted to rama reddy vide registered family settlement and partition deed dated 11. 12. 1939 ( ex. a2 ). in the subsequent re - settlement of village ( setwar of 1353 fasli ), the land in survey no. 53 was re - numbered as survey no. 60, 61 and

62. ever since the allotment in the family partition of the above - mentioned land, vide the family partition deed dated 19. 03. 1939, rama reddy had been in exclusive possession and enjoyment and was paying land revenue. rama reddy s name was also mutated in the pahanies. 3. plaintiffs further stated that the first defendant had it s a. o. c. centre building complex in tirumalagiri village adjoining the suit land survey no. 60 of kakaguda village. the first defendant had also requisitioned 4 acres and 28 guntas in survey no. 60 of kakaguda village in the year 1971 along with the adjoining land in tirumalagiri for extension of a. o. c. centre. further, it was stated that 6th defendant took possession of the above - mentioned land and delivered possession of the same to other defendants. the 3rd defendant later vide his letter dated 18. 12. 1979 sent a requisition for acquisition of 4. 38 guntas in surevy no. 60 for the extension of a. o. c. centre. notification was published in the official gazette dated 18. 09. 1980 and a declaration was made on 30. 06. 1981 and compensation was awarded to rama reddy vide award dated 26. 07. 1982. 4. the plaintiffs, as already stated, had entered into various sale deeds with rama reddy during the year 1981 - 82 by which land measuring 13 acres and 08 guntas in survey no. 60, 11 acres and 04 guntas in survey no. 61 and 17 acres and 20 guntas in survey no. 62 were purchased, that is in all 41 acres and 32 guntas. plaintiffs further stated that the land, which was purchased by it was vacant, but persons of the defence department started making some marking on the portions of the land purchased by the plaintiff, stating that a substantial portion of the land purchased by the plaintiff in survey no. 60 / 1 and 61 belonged to the defence department and treated as b - 4 in their records. plaintiff then preferred an application dated 12. 09. 1983 to the district collector under the a. p. survey and boundaries act for demarcation of boundaries. following that, deputy director of survey issued a notice dated 21. 01. 1984 calling upon the plaintiff and 3rd defendant to attend to the demarcation on 25. 01. 1984. later, a joint survey

was conducted. the 3rd defendant stated that land to the extent of 4 acres and 35 guntas in survey no. 60 and 61 corresponds to their g. l. r. ( general land register ) no. 445 and it is their land as per the record. the deputy director of survey, however, stated that lands in survey nos. 60 and 61 of kakaguda village are patta lands as per the settlement records and vacant, abutting tirumalagiri village boundaries to military pillers and not partly covered in survey no. 60. plaintiff later filed an application for issuing of a certificate as per the plan prepared by the revenue records under section 19 ( v ) of the urban land ceiling act. plaintiff further stated that pending that application, officers of garrison engineers, on the direction of the 3rd defendant, illegally occupied land measuring 2 acres and 29 guntas in survey no. 60 and 4 acres and 01 guntas in survey no. 61. thus, a total extent of land 6 acres and 30 guntas was encroached upon and construction was effected despite the protest by the plaintiff. under such circumstances, the plaintiff preferred the present suit, the details of which have already been stated earlier. 5. the 3rd defendant filed a written statement stating that an area of land measuring 7 acres and 51 guntas, out of survey no. 1, 60 and 61 of kakaguda village comprising g. l. r. survey no. 445 of cantonment belongs to the first defendant, which is locally managed and possessed by defendant no. 3 being local representative of defendant no. 1 and d - 3 and is also the custodian of all defence records. further, it was also stated that, as per the g. l. r., the said land was classified as b - 4 and placed under the management of defence estates officer. it was also stated that the suit land is part of review survey nos. 60 and 61 and the plaintiff is wrongly claiming that the said land was purchased by it. further, it was also stated that the plaintiff is threatening to encroach upon another 6 guntas of land alleged to be situated in survey nos. 60 / 1 and 61. it has been categorically stated that, as per the records maintained by the 3rd defendant, land measuring 7 acres and 51 guntas, forming part of g. l. r. survey no. 445 of the cantonment is part

of survey nos. 1, 60 and 61 of kakaguda village. it is owned, possessed and enjoyed by defendant nos. 1 to 4 and 7. 6. the plaintiff, in order to establish its claim, examined pws 1 to 4 and produced exs. a - 1 to a - 85 and exs. x - 1 to x - 10 besides exs. a - 86 to a - 89 on behalf of dw1. on behalf of the defendants dw1 was examined and exs d - 1 to d - 7 are produced. 7. the primary issue which came up for consideration before the trial court was whether the plaintiff has got ownership and possession over 6 acres and 30 guntas covered by survey no. 60 / 1 and 61 of kakaguda village for which considerable reliance was placed on the settlement record ( setwar ex. a - 3 of 1353 fasli ). on the other hand, the defendants placed considerable reliance on g. l. r. survey no. 445 of the cantonment which is part of survey no. 1, 60 and 61 of kakaguda village, wherein, according to the defendants, the suit land falls. pw2, the deputy inspector of survey stated, according to setwar, land in survey nos. 60, 61 and 62 is patta land of prakash reddy and others and such survey numbers corresponds to old survey no. 53. the evidence of pw - 3 and 4 also states that the land is covered by old survey no. 53 which figures in survey nos. 60, 61 and 62. ext. a - 3 setwar, is a settlement register prepared by the survey officer at the time of revised survey and settlement in the year 1358 fasli in which the names of the predecessors in title of the plaintiff are shown as pattedars. in other words, ex - a - 3 is the exhibit of rights and title of plaintiff s predecessors in title. 8. defedants, as already indicated, on the other hand, pleaded that the total extent of survey no. 53 was only 33 acres and 12 guntas and if that be so, after sub - division the extent of sub - divided survey numbers would also remain the same, but the extent of sub - divided survey nos. 60, 61 and 62 were increased to 41 acres and 32 guntas in the revenue records without any notice to the defendants which according to the defendants, was fraudulent

##ly done by one venkata narasimha reddy, the original land owner of survey no. 53 of kakaguda village, who himself was the patwari of kakaguda village. further, it was the stand of the defendants that in exercise of powers under the secunderabad and aurangabad cantonment land administration rules, 1930, the g. lr. of 1933 was prepared by captain o. m. james after making detailed enquiries from the holder of occupancy rights as well as general public. further, it is also stated that certain land within the villages were handed over by the then nizam to british government for military use. land in question measuring 7 acres and 51 guntas in g. l. r. 1933 at survey no. 581 was used by the british government as murram pits and it was classified as class - c land vested in the cantonment authority. g. l. r. 1933 was re - written in the year 1956 in view of the provisions of rule 3 of cantonment land administration rules, 1937 and said survey no. 581 was re - written as g. l. r. survey no. 445. further, in view of the classification of the land, as stipulated in cantonment land administration rules, 1937, land pertaining to g. l. r. survey no. 445 was re - classified as b - 4 ( vacant land ) reserved for future military purposes and management was transferred from cantonment authority to defence estate. 9. the above - mentioned facts would indicate that the plaintiff traces their title to the various sale deeds, ext. a - 3 setwar of 1353 fasli and the oral evidence of the survey officials and the defendants claim title and possession of the land on the basis of the g. l. r. the question that falls for consideration is whether the evidence adduced by the plaintiff is sufficient to establish the title to the land in question and to give a declaration of title and possession by the civil court. 10. shri vikas singh, learned senior counsel appearing for the appellants submitted that g. l. r. 445 measuring an area of 7 acres and 51 guntas is classified as b - 4 and placed under the management of the defence estate officer. column 7 of the g. l. r. would indicate that the landlord is the central government. out of 7 acres and 51 guntas, land admeasuring 6 acres has been handed over to defence accounts department for construction

of defence staff quarters as per survey no. 445 / a, as per the records as early as in 1984. further, it was pointed out that the appellant had already constructed approximately 300 quarters in 6 acres of land. learned senior counsel submitted that since the extent of land mentioned in old survey no. 53 as well as in the settlement and partition deed, do not tally to the extent of land mentioned in ext. a - 3 and burden is heavy on the side of the plaintiff to show and explain as to how the registered family settlement and partition deed did not take place in the disputed land. learned senior counsel also submitted that the high court has committed an error in ignoring the g. l. r. produced by the defendants, even though there is no burden on the defendants to establish its title in a suit filed by the plaintiff for declaration of title and possession. 11. shri p. s. narasimha, learned senior counsel and shri basava prabhu patil, learned senior counsel appearing for the respondents submitted that the city civil court as well as the high court have correctly appreciated and understood the legal position and correctly discarded the entries made in the g. l. r. learned senior counsel submitted that the correctness and evidentiary value of g. l. r. entries have to be appreciated in the context of the history of the secunderabad cantonment. reference was made to the provisions of cantonment act, 1924 and it was pointed out that the secunderabad and aurangabad cantonment land administration rules, 1930 do not apply to the kakaguda village. learned senior counsel have also referred to ex. a6, the sesala pahani for the year 1955 - 58, of kakaguda village, ex. a7, the pahani patrika for the year 1971 - 72, ex. a8, the pahani patrika for the year 1972 - 73 and submitted that they would indicate that methurama reddy, the predecessor in title, was the pattedar of survey nos. 60 and 61 of kakaguda village. it was pointed out that the entries made therein have evidentiary value. learned counsel pointed out that the settlement register prepared under the statutes and pahanies maintained under the hyderabad record of rights in land regulations of 1358, fasli have considerable evidentiary value. further, it was also pointed out that the land in question is pot kharab land, which is not normally treated

as land in section 3 ( j ) of ceiling act and hance may not figure in a settlement or partition deed, hence not subjected to any revenue assessment. learned senior counsel submitted that the plaintiff has succeeded in establishing its title to the property in question, as was found by the city civil court as well as the high court which calls for no interference by this court under article 136 of the constitution. 12. it is trite law that, in a suit for declaration of title, burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff. 13. the high court, we notice, has taken the view that once the evidence is let in by both the parties, the question of burden of proof pales into insignificance and the evidence let in by both the parties is required to be appreciated by the court in order to record its findings in respect of each of the issues that may ultimately determine the fate of the suit. the high court has also proceeded on the basis that initial burden would always be upon the plaintiff to establish its case but if the evidence let in by defendants in support of their case probabalises the case set up by the plaintiff, such evidence cannot be ignored and kept out of consideration. 14. at the outset, let us examine the legal position with regard to whom the burden of proof lies in a suit for declaration of title and possession. this court in maran mar basselios catholicos v. thukalan paulo avira reported in air1959 sc 31 observed that in a suit for declaration if the plaintiffs are to succeed, they must do so on the strength of their own title. in nagar palika, jind v. jagat singh, advocate ( 1995 ) 3 scc 426, this court held as under : 15. the legal position, therefore, is clear that the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. we are of the view that even if the title set up by the defendants is found against, in the absence of establishment of plaintiff s own title, plaintiff must be non - suited. 16. we notice that the trial court as well

as the high court rather than examining that question in depth, as to whether the plaintiffs have succeeded in establishing their title on the scheduled suit land, went on to examine in depth the weakness of the defendants title. defendants relied on the entries in the glr and their possession or re - possession over the suit land to non - suit the plaintiffs. the court went on to examine the correctness and evidentiary value of the entries in the glr in the context of the history and scope of cantonment act, 1924, the cantonment land administration rules, 1925 and tried to establish that no reliance could be placed on the glr. the question is not whether the glr could be accepted or not, the question is, whether the plaintiff could prove its title over the suit property in question. the entries in the glr by themselves may not constitute title, but the question is whether entries made in ext. a - 3 would confer title or not on the plaintiff. 17. this court in several judgments has held that the revenue records does not confer title. in corporation of the city of bangalore v. m. papaiah and another ( 1989 ) 3 scc 612 held that it is firmly established that revenue records are not documents of title, and the question of interpretation of document not being a document of title is not a question of law. in guru amarjit singh v. rattan chand and others ( 1993 ) 4 scc 349 this court has held that that the entries in jamabandi are not proof of title. in state of himachal pradesh v. keshav ram and others ( 1996 ) 11 scc 257 this court held that the entries in the revenue papers, by no stretch of imagination can form the basis for declaration of title in favour of the plaintiff. 18. the plaintiff has also maintained the stand that their predecessor - in - interest was the pattadar of the suit land. in a given case, the conferment of patta as such does not confer title. reference may be made to the judgment of this court in syndicate bank v. estate officer & manager, apiic ltd. & ors. ( 2007 ) 8 scc 361 and vatticherukuru village panchayat v. nori venkatarama deekshithulu & ors. ( 1991 ) supp. ( 2 ) scc 228. 19. we notice that the above principle laid down by this court sought to be distinguished by the high court on the ground that

none of the above - mentioned judgments, there is any reference to any statutory provisions under which revenue records referred therein, namely, revenue register, settlement register, jamabandi registers are maintained. the high court took the view that ext. a - 3 has evidentiary value since the same has been prepared on the basis of hyderabad record of rights in land regulation, 1358 fasli. it was also noticed that column 1 to 19 of pahani patrika is nothing but record of rights and the entries in column 1 to 19 in pahani patrika shall be deemed to be entries made and maintained under regulations. 20. we are of the view that even if the entries in the record of rights carry evidentiary value, that itself would not confer any title on the plaintiff on the suit land in question. ext. x - 1 is classer register of 1347 which according to the trial court, speaks of the ownership of the plaintiff s vendor s property. we are of the view that these entries, as such, would not confer any title. plaintiffs have to show, independent of those entries, that the plaintiff s predecessors had title over the property in question and it is that property which they have purchased. the only document that has been produced before the court was the registered family settlement and partition deed dated 11. 12. 1939 of their predecessor in interest, wherein, admittedly, the suit land in question has not been mentioned. 21. learned senior counsel appearing for the respondents submitted that the land in question is pot kharab and since no tax is being paid, the same would not normally be mentioned in the partition deed or settlement deed. the a. p. survey and settlement mannual, chapter xiii deals with pot kharab land, which is generally a non - cultivable land and if the predecessors in interest had ownership over this pot kharab land, the suit land, we fail to see, why there is no reference at all to the family settlement and partition deed dated 11. 12. 1939. admittedly, the predecessor in interest of the plaintiff got this property in question through the above - mentioned family settlement and partition deed. conspicuous absence of the suit land in question in the above - mentioned deed would cast doubt about the ownership and title of the plaintiffs over the suit land in question. no acceptable explanation has been given by the plaintiff to explain away the conspicuous omission of the suit land in the registered family settlement and partition deed. facts would also clearly indicate that in ex

##t - a1, the suit land has been described in old survey no. 53 which was allotted to the plaintiff s predecessors in title. it is the common case of the parties that survey no. 53 was sub - divided into survey nos. 60, 61 and 63. admittedly, the old survey no. 53 takes in only 33 acres and 12 guntas, then naturally, survey nos. 60, 61 and 63 cannot be more than that extent. further, if pot kharab land is not recorded in the revenue record, it would be so even in case of sub - division of old survey no. 53. the only explanation was that, since the suit land being pot kharab land, it might not have been mentioned in ex. a. 22. a family settlement is based generally on the assumption that there was an antecedent title of some kind in the purchase and the arrangement acknowledges and defines what that title was. in a family settlement - cum - partition, the parties may define the shares in the joint property and may either choose to divide the property by metes and bounds or may continue to live together and enjoy the property as common. so far as this case is concerned, ex. a1 is totally silent as to whose share the suit land will fall and who will enjoy it. needless to say that the burden is on the plaintiff to explain away those factors, but the plaintiff has not succeeded. on other hand, much emphasis has been placed on the failure on the part of the defendants to show that the applicability of the glr. the defendant maintained the stand that the entries made in glr, maintained under the cantonment land administration rules, 1937, in the regular course of administration of the cantonment lands, are admissible in evidence and the entries made therein will prevail over the records maintained under the various enactment, like the andhra pradesh ( telangana area ) land revenue act, 1317 falsi, the hyderabad record of rights in land regulation, 1358 falsi, the hyderabad record of rights rules, 1956 etc. in order to establish that position, reliance was placed on the judgments of this court in union of india v. ibrahim uddin & anr. ( 2012 ) 8 scc 148, union of india & ors. v. kamla verma ( 2010 ) 13 scc 511, chief executive officer v. surendra kumar vakil & ors. ( 1999 )

3 scc 555 and secunderabad cantonment board, andhra circle, secundrabad v. mohd. mohiuddin & ors. ( 2003 ) 12 scc315. both, the trial court and the high court made a detailed exercise to find out whether the glr register maintained under the cantonment land administration rules, 1937 and the entries made there under will have more evidentiary value than the revenue records made by the survey department of the state government. in our view, such an exercise was totally unnecessary. rather than finding out the weakness of glr, the courts ought to have examined the soundness of the plaintiff case. we reiterate that the plaintiff has to succeed only on the strength of his case and not on the weakness of the case set up by the defendants in a suit for declaration of title and possession. 23. in such circumstances, we are of the view that the plaintiff has not succeeded in establishing his title and possession of the suit land in question. the appeal is, therefore, allowed and the judgment of the trial court, affirmed by the high court, is set aside. however, there will be no order as to costs... j. ( k. s. radhakrishnan ). j. ( a. k. sikri ) new delhi, january 07, 2014

1. being aggrieved by the judgment delivered in ita no. 520 of 2006 dated 19th january, 2007, by the high court of delhi, this appeal has been filed by the commissioner of income tax. 2. the facts giving rise to the present appeal, in a nutshell, are as under : so as to encourage export for the purpose of earning foreign exchange, section 80 hhc has been enacted in the income tax act, 1961 ( hereinafter referred to as the act ). by virtue of the provisions of the said section, subject to certain conditions, the exporter gets certain deduction from the income, which is derived from the profits from export of goods, while computing taxable income. 3. for the purpose of calculating the deduction, according to the provisions of section 80hhc of the act, one has to take into account the profits from the business of the assessee, export turnover and total turnover. the deduction, subject to several other conditions, incorporated in the section, is determined as under : 4. thus, to determine the amount of deduction, the assessee and the revenue must be aware of the following three ingredients : 5. in the instant case, the issue is with regard to the term total turnover. 6. the assessee is a manufacturer and exporter of stainless steel utensils. in the process of manufacturing stainless steel utensils, some portion of the steel, which can not be used or reused for manufacturing utensils, remains unused, which is treated as scrap and the respondent - assessee disposes of the said scrap in the local market and the income arising from the said sale is also reflected in the profit and loss account. the respondent - assessee not only sells utensils in the local market but also exports the utensils. 7. for the purpose of availing deduction under section 80hhc of the act for the relevant assessment year, the assessee was not including the sale proceeds of scrap in the total turnover but was showing the same separately in the profit and loss account. 8. according to the revenue, the sale proceeds from the scrap should have been included in the total turnover as the respondent - assessee was also selling scrap and that was also part of the sale proceeds. 9. the assessee had objected to the aforestated suggestion of the revenue because inclusion of the sale proceeds of scrap into the total turnover would reduce the amount

deductible under the provisions of section 80hhc of the act. 10. one can very well see that if the total turnover increases, the advantage which the assessee would get under section 80hhc would decrease because the amount deductible substantially depends upon the ratio between the export turnover and total turnover. if the export turnover is higher, comparatively the amount deductible under section 80hhc would be more ; or in other words, if compared to total turnover, export turnover is less, the amount deductible from the income under section 80hhc would be reduced. by virtue of the impugned judgment delivered by the high court, the accounting method followed by the respondent - assessee has been approved and therefore, this appeal is filed by the revenue. 11. the learned counsel appearing for the appellant - revenue, had vehemently submitted that even the sale of scrap is sale and the proceeds which the respondent - assessee received from such sale should be included in the total turnover. in the circumstances, the total turnover must include the amount received by the respondent - assessee from the sale of scrap. 12. it had been submitted by him that the respondent - assessee was getting substantial amount from sale of scrap and the receipt from the sale of scrap was a regular feature of its business. in the aforestated circumstances, according to the learned counsel appearing for the appellant - revenue, the view expressed by the high court is incorrect because that would exclude substantial receipt of the respondent - assessee from the total turnover and therefore, according to him, the appeal should be allowed and the amount deductible should be re - assessed after inclusion of the amount received from the sale of scrap into the total turnover. 13. on the other hand, the learned counsel appearing for the respondent - 14. the learned counsel had also relied upon the judgment delivered in the case of commissioner, income tax thiruvananthapuram v. k ravindranathan nair [ ( 2007 ) 15 scc 1 ], which deals with the term turnover. according to him, though the said issue has not been directly discussed in the said judgment, from the meaning of the word turnover given in the said judgment, it is very clear that the term turnover would include only the sale proceeds of the articles manufactured and sold and not other things which are sold by a business unit. he had also referred to the definition of term business given in the act. 15. according to him,

had the respondent - assessee been doing business of scrap, the sale proceeds of scrap would have been treated as a part of total turnover but as the respondent is not dealing in scrap, the amount received from the sale of scrap can never be treated as a part of the sale proceeds and therefore, he had submitted that the view taken by the high court is absolutely correct. 16. we had heard the learned counsel appearing for both the sides and also considered the relevant record and the judgments referred to. 17. to ascertain whether the turnover would also include sale proceeds from scrap, one has to know the meaning of the term turnover. the term turnover has neither been defined in the act nor has been explained by any of the cbdt circulars. 18. in the aforestated circumstances, one has to look at the meaning of the term turnover in ordinary accounting or commercial parlance. 19. normally, the term turnover would show the sale effected by a business unit. it may happen that in the course of the business, in addition to the normal sales, the business unit may also sell some other things. for example, an assessee who is manufacturing and selling stainless steel utensils, in addition to steel utensils, the assessee might also sell some other things like an old air conditioner or old furniture or something which has outlived its utility. when such things are disposed of, the question would be whether the sale proceeds of such things would be included in the turnover. similarly in the process of manufacturing utensils, there would be some scrap of stainless steel material, which cannot be used for manufacturing utensils. such small pieces of stainless steel would be sold as scrap. here also, the question is whether sale proceeds of such scrap can be included in the term sales when it is to be reflected in the profit and loss account. 20. in ordinary accounting parlance, as approved by all accountants and auditors, the term sales, when reflected in the profit and loss account, would indicate sale proceeds from sale of the articles or things in which the business unit is dealing. when some other things like old furniture or a capital asset, in which the business unit is not dealing are sold, the sale proceeds therefrom would not be included in sales but it would be shown separately. 21. in simple words, the word turnover would mean only the amount of sale proceeds received in respect of the goods in which an assessee is

dealing in. for example - if a manufacturer and seller of air - conditioners is asked to declare his turnover, the answer given by him would show the sale proceeds of air - conditioners during a particular accounting year. he would not include the amount received, if any, from the sale of scrap of metal pieces or sale proceeds of old or useless things sold during that accounting year. this clearly denotes that ordinarily a businessman by word turnover would mean the sale proceeds of the goods ( the things in which he is dealing ) sold by him. 22. so far as the scrap is concerned, the sale proceeds from the scrap may either be shown separately in the profit and loss account or may be deducted from the amount spent by the manufacturing unit on the raw material, which is steel in the case of the respondent - assessee, as the respondent - assessee is using stainless steel as raw material, from which utensils are manufactured. the raw material, which is not capable of being used for manufacturing utensils will have to be either sold as scrap or might have to be re - cycled in the form of sheets of stainless steel, if the manufacturing unit is also having its re - rolling plant. if it is not having such a plant, the manufacturer would dispose of the scrap of steel to someone who would re - cycle the said scrap into steel so that the said steel can be re - used. 23. when such scrap is sold, in our opinion, the sale proceeds of the scrap cannot be included in the term turnover for the reason that the respondent - unit is engaged primarily in the manufacturing and selling of steel utensils and not scrap of steel. therefore, the proceeds of such scrap would not be included in sales in the profit and loss account of the respondent - assessee.. 24. the situation would be different in the case of the buyer, who purchases scrap from the respondent - assessee and sells it to someone else. the sale proceeds for such a buyer would be treated as turnover for a simple reason that the buyer of the scrap is a person who is primarily dealing in scrap. in the case on hand, as the respondent - assessee is not primarily dealing in scrap but is a manufacturer of stainless steel utensils, only sale proceeds from sale of utensils would be treated as his turnover. 25. so as to be more accurate about the word turnover, one can either refer to dictionaries

or to materials which are published by bodies of accountants. the institute of chartered accountants of india ( hereinafter referred to as the icai ) has published some material under the head guidance note on tax audit under section 44ab of the income tax act. the said material has been published so as to guide the members of the icai. in our opinion, when a recognized body of accountants, after due deliberation and consideration publishes certain material for its members, one can rely upon the same. para 5 of the said note deals with sales, turnover and gross receipts. paras 5. 2 and 5. 3 of the said note are reproduced hereinbelow, which pertain to the term turnover. 5. 2 in the guidance note on terms used in financial statements published by the icai, the expression sales turnover ( item 15. 01 ) has been defined as under : - 5. 3 the guide to company audit issued by the icai in the year 1980, while discussing sales, stated as follows : note ( i ) the term turnover would mean the total sales after deducting therefrom goods returned, price adjustments, trade discount and cancellation of bills for the period of audit, if any. adjustments which do not relate to turnover should not be made e. g. writing off bad debts, royalty etc. where excise duty is included in turnover, the corresponding amount should be distinctly shown as a debit item in the profit and loss account. ( emphasis added ) the aforestated meaning given by the icai clearly denotes that in normal accounting parlance the word turnover would mean total sales as explained hereinabove. the said sales would definitely not include the scrap material which is either to be deducted from the cost of raw material or is to be shown separately under a different head. we do not see any reason for not accepting the meaning of the term turnover given by a body of accountants, which is having a statutory recognition. 26. if all accountants, auditors, businessmen, manufacturers etc. are normally interpreting the term turnover as sale proceeds of the commodity in which the business unit is dealing, we see no reason to take a different view than the view normally taken by the persons who are concerned with the said term. 27. in addition to the above factors, which we have considered for understanding the meaning of the term turnover, we should not miss the purpose with which the said term has been incorporated in section 80 hhc of the act.

28. the intention behind enactment of section 80hhc of the act was to encourage export so as to earn more foreign exchange. for the said purpose the government wanted to encourage businessmen, traders and manufacturers to increase the export so as to bring more foreign exchange in our country. if the purpose is to bring more foreign exchange and to encourage export, we are of the view that the legislature would surely like to give more benefit to persons who are making an effort to help our nation in the process of bringing more foreign exchange. if a trader or a manufacturer is trying his best to increase his exports, even at the cost of his business in a local market, we are sure that the government would like to encourage such a person. in our opinion, once the government decides to give some benefit to someone who is helping the nation in bringing foreign exchange, the revenue should also make all possible efforts to encourage such traders or manufacturers by giving such business units more benefits as contemplated under the provisions of law. 29. for the aforesaid reasons, we are of the view that the view expressed by the high court is in conformity with the normal accounting practice followed by the traders, including the respondent - assessee and it was justified in coming to a conclusion that the proceeds generated from the sale of scrap would not be included in the total turnover. 30. for the aforesaid reasons, we dismiss the appeal with no order as to costs. 31. in view of the order passed in the civil appeal no. 5592 of 2008, civil appeal nos. 3283 of 2009, 4491 of 2009 and 4898 of 2010 are also dismissed with no order as to costs as the legal issues involved in these appeals are same........................................ j ( anil r. dave )........................................ j ( dipak misra ) new delhi may 5, 2014. - - - - - - - - - - - - - - - - - - - - - - -

v. gopala gowda, j. leave granted. 2. this appeal is filed by the appellants questioning the correctness of the common judgment and final order dated 31. 10. 2011 passed by the high court of karnataka at bangalore in m. f. a. no. 1131 of 2011 [ mv ], c / w m. f. a. nos. 1132 and 1133 of 2011 [ mv ], urging various facts and legal contentions in justification of their claim. 3. necessary relevant facts are stated hereunder to appreciate the case of the appellants and also to find out whether the appellants are entitled for the relief as prayed in these appeals. on 14. 8. 2008, all the three appellants / claimants in the appeals herein were proceeding on the left side of the road by pushing the motorcycle bearing registration no. ka - 16 - 2404 since it was punctured. when the appellants / claimants came near the coper petrol bunk, opposite to jai hind hotel, a tractor bearing no ka - 16 / t - 8219 - 8220 came from the opposite direction on its right side in rash and negligent manner and dashed into the motor cycle and the appellants / claimants. this resulted in all the appellants / claimants sustaining grievous injuries. 4. they filed mv case nos. 149, 147 and 148 of 2010 respectively before the motor accident claim tribunal, chitradurga ( for short the tribunal ). the tribunal awarded different awards in the three different appeals which had been heard together by the high court of karnataka. since the injuries suffered by the three appellants are different, we are inclined to decide upon the appeals individually. as far as injuries sustained by the appellants in the road accident are concerned, there is no dispute that the accident occurred on 14. 02. 2008 due to the rash and negligent driving of the tractor - trailer bearing registration no. ka - 16 / t - 8219 - 8220 by its driver. the appeals therefore, are confined to determining whether the quantum of compensation which was enhanced by the high court from that of the tribunal is just and proper or whether it requires further enhancement in the interest of justice. we take up the appeals one at a time. civil appeal @ mfa 1131 / 2011 ( mvc no. 149 / 2010 ) 5. it is evident from the material and legal evidence produced on record that the appellant / claimant in this appeal had sustained injuries to lower end of right femur and his right leg was

amputated. further, he had sustained injury over his left upper arm. the injuries sustained by him and the treatment taken by him are evident from the wound certificate ex. p - 6, discharge cards ex. p - 7 & 8, disability certificate ex. p - 12, x - ray films ex. p - 218 and was further supported by oral evidence of the appellant / claimant and the doctor examined as pw - 1 and pw - 4 respectively. pw - 4 dr. rajesh had stated in his evidence that the appellant / claimant had suffered disability of 24 % to upper limb and 85 % to lower limb. the tribunal, however, had considered the disability of the appellant / claimant caused to whole body at 30 %. the high court however, taking into consideration the amputation of the right leg of the appellant / claimant, determined the disability at 65 % without assigning any proper reason for coming to this conclusion. therefore, we intend to assign our reasons to hold that the high court has erred in concluding the disability at 65 %. 6. this court in the case of mohan soni v. ram avtar tomar & ors. [ 1 ], has elaborately discussed upon the factors which determine the loss of income of the claimant more objectively. the relevant paragraph reads as under : 7. further, the appellant claims that he was working as a vegetable vendor. it is true that a vegetable vendor might not require mobility to the extent that he sells vegetables at one place. however, the occupation of vegetable vending is not confined to selling vegetables from a particular location. it rather involves procuring vegetables from the whole - sale market or the farmers and then selling it off in the retail market. this often involves selling vegetables in the cart which requires 100 % mobility. but even by conservative approach, if we presume that the vegetable vending by the appellant / claimant involved selling vegetables from one place, the claimant would require assistance with his mobility in bringing vegetables to the market place which otherwise would be extremely difficult for him with an amputated leg. we are required to be sensitive while dealing with manual labour cases where loss of limb is often equivalent to loss of livelihood. yet, considering that the appellant / claimant is still capable to fend for his livelihood once he is brought in the market place, we determine the disability at 85 % to determine the loss of income. 8. the appellant / claimant in his appeal further claimed that he had been earning

[ pic ] 10, 000 / - p. m. by doing vegetable vending work. the high court however, considered the loss of income at [ pic ] 3500 / - p. m. considering that the claimant did not produce any document to establish his loss of income. it is difficult for us to convince ourselves as to how a labour involved in an unorganized sector doing his own business is expected to produce documents to prove his monthly income. in this regard, this court, in the case of ramchandrappa v. manager, royal sundaram alliance company limited [ 2 ], has held as under : 9. there is no reason, in the instant case for the tribunal and the high court to ask for evidence of monthly income of the appellant / claimant. on the other hand, going by the present state of economy and the rising prices in agricultural products, we are inclined to believe that a vegetable vendor is reasonably capable of earning [ pic ] 6, 500 / - per month. 10. further, it is evident from the material evidence on record that the appellant / claimant was 24 years old at the time of occurrence of the accident. it is also established on record that he was earning his livelihood by vending vegetables. the issue regarding calculation of prospective increment of income in the future of self employed people, came up in santosh devi v. national insurance company limited [ 3 ], wherein this court has held as under : employed or is engaged on fixed wages will also get 30 per cent increase in his total income over a period of time and if he / she becomes victim of accident then the same formula deserves to be applied for calculating the amount of compensation. therefore, considering that the appellant / claimant was self employed and was 24 years of age, we hold that he is entitled to 50 % increment in the future prospect of income based upon the principle laid down in the santosh devi case ( supra ). 11. further, regarding the use of multiplier, it was held in the sarla verma v. dtc [ 4 ] which was upheld in santosh devi case ( supra ), as under : 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. therefore, applying the principle of sarla verma in

the present case, we hold that the high court was correct in applying the multiplier of 18 and we uphold the same for the purpose for calculating the amount of compensation to which the appellant / claimant is entitled to. 12. with respect to the medical expenses incurred by the appellant / claimant, he has produced medical bills and incidental charges bills marked as exs. p - 25 to p - 201 and prescriptions at exs. p - 202 to p - 217 on the basis of which the tribunal awarded a compensation of [ pic ] 60, 000 / - under the head. however, considering that the appellant might have to change his artificial leg from time to time, we shall allot an amount of [ pic ] 1, 00, 000 / - under the head of medical cost and incidental expenses to include future medical costs. thus, the total amount which is awarded under the head of loss of future income including the 50 % increment in the future, works out to be [ pic ] 17, 90, 100 / - [ ( [ pic ] 65, 00 / - x 85 / 100 + 50 / 100 x 85 / 100 x [ pic ] 6, 500 / - ) x 12 x 18 ]. 13. further, along with compensation under conventional heads, the appellant / claimant is also entitled to the cost of litigation as per the legal principle laid down by this court in the case of balram prasad v. kunal saha [ 5 ]. therefore, under this head, we find it just and proper to allow [ pic ] 25, 000 / - 14. hence, the appellant / claimant is entitled to the compensation under the following heads : 15. also, by relying upon the principle laid down by this court in the case of municipal corporation of delhi v. association of victims of uphaar tragedy [ 6 ], we find it just and proper to allow interest at the rate of 9 % per annum. 16. hence, the total amount of claim the appellant / claimant becomes entitled to is [ pic ] 21, 65, 100 / - with interest @ 9 % per annum from the date of application till the date of payment. civil appeal @ mfa 1132 / 2011 ( mvc no. 147 / 2010 ) 17. the appellant / claimant in this appeal has sustained type - 3 compound fracture of right femur, fracture of tibia, fracture of middle shaft tibia and fibula. the injuries sustained and the treatment taken by the appellant / claimant are evident from

discharge card ex. p - 225, photographs marked as ex. p - 227 to p - 234, disability certificate marked as ex. p - 236, x - ray films ex. p - 574 supported by the oral evidence of the claimant and the doctor examined as pw - 3 and pw - 4 respectively. pw - 4 dr. rajesh had stated in his evidence that the appellant / claimant has suffered from permanent disability of 69 % to lower limb. the high court has taken his functional disability at 25 %. however, while determining the disability of the claimants in motor accidents cases, this court might be sensitive about the functional disability involved and the nature of the occupation, particularly, if the occupation involves manual labour. therefore, we hold that the high court erred in determining the functional disability of the appellant in the present appeal on the lower side. since, the appellant / claimant in the present appeal is also a vegetable vendor like the appellant / claimant in civil appeal @ mfa 1131 / 2011, we take his monthly income at [ pic ] 6, 500 / - on average and for the reasons recorded in that appeal, we determine the functional disability of the appellant / claimant in the present appeal at 35 %. considering his age, and based on the legal principle laid down by this court in the cases mentioned supra, we hold his increment on future income at 50 % and the multiplier at 18. therefore, he is entitled to [ pic ] 7, 37, 100 / - [ ( [ pic ] 6, 500 x 35 / 100 + 50 / 100 x 35 / 100 x [ pic ] 6, 500 ) x 12 x18 ] under the head of loss of future income. 18. the amount awarded by the tribunal and the high court under other conventional heads have not been disputed by the appellant / claimant by producing contrary evidence. therefore, the amount awarded under those heads shall remain constant. based on the reasoning given by us in the earlier appeal, the appellant / claimant is also entitled to the cost of litigation at [ pic ] 25, 000 / -. 19. hence, the appellant / claimant is entitled to compensation under the following heads : 20. therefore, the appellant / claimant is entitled to a total sum of [ pic ] 9, 77, 100 / - with interest @ 9 % per annum based on the principle laid down by this court mentioned supra. civil appeal @ mfa 1133 / 2011 ( mvc no. 148 / 2010 ) 21. the appellant / claimant in this

appeal has identified himself as a cleaner of lorries by profession. as per the wound certificate ex. p - 219, it has been established that the appellant / claimant has sustained fracture on middle 1 / 3rd of right humerus and comminuted fracture at the junction of upper 1 / 3rd and middle 1 / 3rd of right tibia. the injuries sustained by him and the treatment taken by him is evident from the disability certificate marked as ex. p - 221, x - ray film marked as ex. p - 222 which is supported by oral evidence of the claimant and doctor examined as pw - 2 and pw - 4 respectively. pw - 4 dr. rajesh has stated in his evidence that the claimant has suffered 22 % permanent disability to upper limb and 29 % to lower limb. the high court has calculated the functional disability to 13 %. we are inclined to hold that the high court has erred in ascertaining the functional disability to such a low percentage considering that the appellant / claimant earns his livelihood through manual labour. it is evident from the material evidence produced on record that the appellant / claimant has suffered from comminuted fracture in the accident as a result of which he will not be able to bend, stretch or rotate his right hand. he will also not be able to lift heavy material which is so essential to carry on with his business to earn his livelihood. therefore, we are inclined to observe that the appellant / claimant suffers from a functional disability to the extent of 85 %. 22. further, the appellant / claimant has claimed that he has been earning [ pic ] 5, 000 / - p. m. by working as a cleaner of the lorry. the tribunal assessed his monthly income at [ pic ] 3000 / -. the high court, considering his age and his profession as a cleaner, assessed his income at [ pic ] 3500 / -. however, based on the karnataka state minimum wages rule 2012 - 2013, the appellant / claimant is entitled to [ pic ] 4246 / - per month. since, no written record of his income could be produced before the court, we take his income, as per revised minimum wages rule at [ pic ] 4246 / - rounding it off as [ pic ] 4300 / - per month. further, an amount of [ pic ] 700 / - can be added as daily barter charges. therefore, his monthly income amounts to [ pic ] 5000 / -. 23.

further, considering that the appellant / claimant was 22 years of age, the multiplier applicable to his age group is 18 and also based on the legal principle laid down by this court in various cases, we hold that he is entitled to 50 % increment in future loss of income. therefore, he is entitled to an amount at [ pic ] 13, 77, 000 / - [ ( [ pic ] 5000 x 85 / 100 + 50 / 100 x 85 / 100 x rs. 5, 000 ) x 12 x 18 ]. 24. it is pertinent to note that the appellant / claimant in this appeal has produced medical bills for [ pic ] 8000 / -. he was treated as an inpatient for 15 days in a private hospital. therefore, considering the same, the high court has awarded a sum of [ pic ] 15000 / - under the head of medical and incidental expenses. however, considering the fact that the appellant / claimant was also required to have conveyance, nourishment and attendant charges for proper recovery of health, we increase the compensation under this head to [ pic ] 50, 000 / -. further, considering the fracture sustained by the appellant / claimant and the evidence produced by the doctor, another [ pic ] 5000 / - awarded by the high court towards future expenses is upheld by us. 25. further, towards loss of amenities, the tribunal has awarded [ pic ] 10, 000 / -. however, considering the disability stated by the doctor and the amount of discomfort and unhappiness he has to undergo in the future life, the high court has awarded [ pic ] 20, 000 / - under this head. we intend to observe that the amount awarded by the high court under this head is very meager and inadequate considering the age and the amount of disability. therefore, under this head, we award a sum of [ pic ] 50, 000 / -. 26. apart from this, based on the reasoning we have already provided above for the two other appellants / claimants, the appellant / claimant in this appeal, is also entitled to compensation under the following heads : 27. therefore, the appellant / claimant in this appeal is entitled to a total amount of [ pic ] 15, 67, 000 / - with an interest of 9 % per annum from the date of application till the date of payment. contributory negligence28. on the matter of extent of contribution to the accident, it is held by the tribunal that the appellants / claimants herein should have taken utmost care while moving on

the highway. looking at the spot of the accident, the tribunal concluded that the appellants / claimants were moving on the middle of the road which led to the accident. therefore, the tribunal concluded that though the tractor has been charge sheeted under sections 279 and 338 of ipc, but given the facts and circumstances of the case, the appellants / claimants also contributed to the accident to the extent of 25 %. the high court without assigning any reason concurred with the findings of the tribunal with respect to contributory negligence. we find it pertinent to observe that both the tribunal and the high court erred in holding the appellants / claimants in these appeals liable for contributory negligence. the tribunal arrived at the above conclusion only on the basis of the fact that the accident took place in the middle of the road in the absence of any evidence to prove the same. therefore, we are inclined to hold that the contribution of the appellants / claimants in the accident is not proved by the respondents by producing evidence and therefore, the finding of the tribunal regarding contributory negligence, which has been upheld by the high court, is set aside. 29. the appeals are allowed accordingly. the appellant / claimant in civil appeal @ mfa 1131 / 2011 ( mvc no. 149 / 2010 ) is awarded a compensation of amount at [ pic ] 21, 65, 100 / -. the appellant / claimant in civil appeal @ mfa 1132 / 2011 ( mvc no. 147 / 2010 ) is awarded a compensation of amount at [ pic ] 9, 77, 100 / -. the appellant / claimant in civil appeal @ mfa 1133 / 2011 ( mvc no. 148 / 2010 ) is awarded a compensation of amount at [ pic ] 15, 67, 000 / -. all the appellants / claimants are entitled to interest @ 9 % per annum from the date of application till the date of payment. 30. the name of the erstwhile first respondent has been deleted from the array of parties by order of this court dated 1. 7. 2013. the insurance company remains the sole respondent in this case. therefore, we direct the insurance company to deposit 50 % of the awarded amount with proportionate interest within four weeks from the date of receipt of a copy of this order, after deducting the amount if already paid, in any of the nationalized bank of the choice of the appellants for a period of 3 years. during the said period, if they want to withdraw a portion or entire deposited amount for

their personal or any other expenses, including development of their asset, then they are at liberty to file application before the tribunal for release of the deposited amount, which may be considered by it and pass appropriate order in this regard. the rest of 50 % amount awarded with proportionate interest shall be paid to the appellants / claimants by way of a demand draft within four weeks. the insurance company is further directed to submit compliance report before this court within five weeks. j. [ sudhansu jyoti mukhopadhaya ] j. [ v. gopala gowda ] new delhi, january 16, 2014 - - - - - - - - - - - - - - - - - - - - - - -

v. gopala gowda, j. leave granted. 2. this appeal has been filed against the judgment and final order dated 04. 11. 2011 passed in the second appeal no. 815 of 2011 by the high court of judicature of andhra pradesh at hyderabad, whereby the high court has dismissed the second appeal. 3. certain relevant facts are stated for the purpose of appreciating the rival legal contentions urged on behalf of the parties with a view to examine the correctness of the findings and reasons recorded by the high court in the impugned judgment. for the sake of brevity and convenience, the parties are referred to in this judgment as per the rank assigned to them in the original suit proceedings. 4. the property bearing door no. 20 / 42 - 1 - 9 with land measuring about 657 - 1 / 3rd sq. yards situated to the west of vallabhai street, cinema road, kakinada ( hereinafter, referred to as the suit schedule property ) was the self acquired property of one pemmada venkateswara rao. he died intestate and survived by wife syama sundari, three sons and three daughters ( the defendant nos. 1 to 6 ). 5. the plaintiffs - the youngmen s vyasa association ( who are the respondents herein ), instituted o. s. no. 267 of 1995 for the specific performance of agreement of sale dated 03. 05. 1993 against the defendants ( the appellants herein ). the plaintiffs alleged that the defendant nos. 1 and 2, who are managing the suit schedule property, agreed to sell the same to plaintiff no. 1. 6. according to the plaintiffs, the defendant nos. 1 and 2 executed the agreement of sale dated 03. 05. 1993 in favour of plaintiff no. 1 agreeing to sell the suit schedule property at the rate of rs. 575 / - per sq. yard, the total consideration of which was to be fixed later after taking the actual measurement. later on, the total land value was fixed at rs. 3, 77, 967 / - for 657 - 1 / 3 sq. yards. the defendant nos. 1 and 2 received advance amount of rs. 5000 / - and rs. 10, 000 / - also. under the agreement the plaintiff no. 1 agreed to pay rs. 1, 70, 000 / - to the defendants within 10 days from the day of vacating the tenants from

the suit schedule property. rs. 50, 000 / - was to be paid on 30. 11. 1993 and that the balance amount of rs. 1, 50, 000 / - was to be paid by 30. 3. 1994. the defendant nos. 1 and 2 agreed that they would obtain the signatures of their 3rd brother - the defendant no. 3 by 9. 05. 1993. defendant nos. 7 and 8 are the tenants in the sheds situated in the suit schedule property. the defendant nos. 1 & 2 stated that their sisters were married long ago therefore, they had no interest in the suit schedule property, and that they would also get the sisters signatures on the agreement. 7. the 2nd addl. senior civil judge, kakinada ( the trial court ) by his judgment dated 12. 7. 2006 dismissed o. s. no 267 / 95, in so far as the main relief for the specific performance of sale is concerned. the trial court has directed the defendants to refund rs. 5000 / - with interest at the rate of 12 % p. a. from 5. 03. 1993 till the date of realization and rs. 10, 000 / - with the interest rate at 12 % p. a. from 6. 08. 1993 till the date of realization. 8. the trial court after considering the oral and documentary evidence on record, observed that as the suit schedule property is adjacent to the plaintiff s property, taking advantage of the financial difficulties of defendant nos. 1 and 2, the plaintiffs attempted to grab the suit schedule property and dragged the defendants to the court of law. 9. the trial court further held that the agreement of sale was not valid as the defendant nos. 3 to 6 and their mother did not give consent to sell the suit schedule property to the plaintiffs. accordingly, the main relief for specific performance was rejected and the defendants were directed to refund the amount of advance sale consideration to the plaintiffs with interest at the rate of 12 % p. a. 10. being aggrieved by the judgment and decree dated 12. 7. 2006 of the trial court, the plaintiffs filed an appeal being a. s. no. 269 of 2006 before the court of 3rd additional district judge, kakinada, the first appellate court. 11. on 28. 04. 2010 the first appellate court allowed the appeal partly, directing the defendant nos. 1, 2, 4 and 5 to execute

the registered sale deed in favour of the plaintiff s association in respect of their 1 / 6th share each i. e. 4 / 6th share by receiving their respective shares of the balance sale consideration from the plaintiffs and modified the decree for specific performance of agreement of sale. 12. the first appellate court vide its order dated 28. 4. 2010 held that the transaction between the parties is real sale transaction and not mere money transaction and the sale agreement is valid and binding between the parties and the plaintiffs are entitled for the first main relief of specific performance and directed defendant nos. 1, 2, 4 and 5 to execute sale deed in respect of their 4 shares of the suit schedule property after receiving proportionate sale price. 13. being aggrieved by the judgment and decree dated 28. 04. 2010 of the first appellate court, the defendants preferred second appeal being s. a. no. 815 of 2011 before the high court of judicature of andhra pradesh at hyderabad whereby the high court vide order dated 4. 11. 2011 dismissed the second appeal which is impugned in this appeal. 14. the high court held that the approach of the first appellate court in granting the relief of specific performance directing defendants 1, 2, 4 and 5 to execute sale deed in respect of their shares, i. e. 4 / 6th share of the suit schedule property in favour of the plaintiffs on receipt of their respective balance consideration which stood deposited in the court, cannot be faulted with. 15. it was further held by the high court that the mother of the defendants was alive when the suit was instituted in 1995 and she died on 29. 09. 2005. she had one share and after her death, the property would be divided into 6 shares and the agreement was held as binding on the defendants 1, 2, 4 and 5. therefore, the high court upheld the decision of the first appellate court and moulded the relief in the above terms while granting decree of specific performance of the agreement of sale by executing the sale deed of their share in the property in favour of the plaintiffs. 16. the following submissions were made by the learned counsel for both the parties in support of their claim and counter claim. 17. on behalf of the defendant nos. 1 & 2, it is contended that their father pemmada venkateswara rao was engaged in lathe works which incurred heavy loss and he was allegedly indebted to various creditors. they approached one murali krishna ( who

had acquaintance with them ) who was the secretary of the plaintiff association to borrow some money. taking advantage of their situation, the secretary and the president of the plaintiff association obtained the signatures of defendant nos. 1 and 2 on a blank sheet of paper and gave rs. 5000 / - on 3. 5. 1993 and rs. 10, 000 / - on 6. 8. 1993 to them. 18. it was further contended by the learned counsel that the defendants never intended to sell the suit schedule property and the transaction with the plaintiffs association was only money transaction and was not a sale transaction with it. a separate written statement was filed by the 4th defendant to the same effect. 19. it was further contended by defendant nos. 1 to 6 that even on the date of execution of agreement of sale their mother was very much alive and, therefore in the absence of execution of agreement of sale by all the seven co - sharers of the suit schedule property the suit for specific performance does not lie. the learned counsel for the defendants placed reliance on the decisions of andhra pradesh high court and this court in the cases of kommisetti venkatasubbayya v. karamestti venkateswarlu [ 1 ] and lourdu mari david & ors. v. louis chinnaya arogiaswamy & ors. [ 2 ] in support of their claim. 20. further, they placed reliance upon the case of this court in rameshwar & ors. v. jot ram & anr. [ 3 ]. in the said authority it has been held as follows : 9 first, its bearing on the right of action, second, on the nature of the relief and third, on its impotence to create or destroy substantive rights. where the nature of the relief, as originally sought, has become obsolete or unserviceable or a new form of relief will be more efficacious on account of developments subsequent to the suit or even during the appellate stage, it is but fair that the relief is moulded, varied or reshaped in the light of updated facts. patterson illustrates this position. it is important that the party claiming the relief or change of relief must have the same right from which either the first or the modified remedy may flow. subsequent events in the course of the case cannot be constitutive of substantive rights enforceable in that very litigation except in a narrow category ( later spelt out ) but may influence

the equitable jurisdiction to mould reliefs. conversely, where rights have already vested in a party, they cannot be nullified or negated by subsequent events save where there is a change in the law and it is made applicable at any stage. lachmeshwar prasad shukul v. keshwar lal chaudhuri falls in this category. courts of justice may, when the compelling equities of a case oblige them, shape reliefs cannot deny rights to make them justly relevant in the updated circumstances. where the relief is discretionary, courts may exercise this jurisdiction to avoid injustice. likewise, where the right to the remedy depends, under the statute itself, on the presence or absence of certain basic facts at the time the relief is to be ultimately granted, the court, even in appeal, can take note of such supervening facts with fundamental impact ( emphasis supplied ) 21. the high court held that defendants pleaded falsehood at the time of execution of the agreement of sale by stating that their mother had predeceased their father. the agreement and the endorsement thereon made by defendant nos. 1 and 2 had swayed discretion of the high court in favour of the plaintiffs which is an association engaged in the welfare of the community. 22. the high court further held that the suit schedule property was not purchased for unlawful gain of an individual and that the first appellate court considered the entire evidence on record and exercised its sound jurisdiction and modified the judgment of the trial court by granting a decree of specific performance as per the terms stipulated therein. 23. the high court dismissed the second appeal without adverting to the substantial questions of law that were framed in the second appeal at the admission stage itself stating that there is no substantial question of law for its adjudication. the first appellate court and the second appellate court committed serious error in law in not noticing the relevant important findings of fact recorded by the trial court on the contentious issues on proper appreciation of pleadings and evidence on record with reference to the legal submission made on behalf of the parties. the trial court after proper appreciation of evidence on record, particularly, ex. - a1, the agreement of sale, has held that it is not a valid agreement and no rights can flow from it in favour of the plaintiffs in the light of the fact that the signatures of defendant nos. 1 and 2 were obtained on different dates on blank papers as they were in financial crisis and that fact is proved by producing exs. - b1 to b -

8 to show that the entire family ( defendant nos. 1 to 6 ) were in financial crisis and they were forced to pay the debts to their creditors. therefore, they were in urgent need of money and they approached the pw - 1 for financial help, who obtained the signatures of defendant nos. 1 and 2 on blank paper and the same was fabricated as a receipt. the said receipt was not signed by defendant nos. 3 to 6. the mother of the defendant nos. 1 and 2 is one of the co - sharers of the suit schedule property as a class - i legal heir to succeed to the intestate property of her deceased husband, which was his self acquired property left by him, as he had purchased the same vide sale - deed document no. 5174 / 1970 dated 24. 11. 1970 from his vendors. in fact, there is a reference made in this regard in the agreement of sale executed by defendant nos. 1 and 2 to the effect that after demise of pemmada venkateswara rao, the father of defendant nos. 1 to 6, the property devolved upon them jointly and they are enjoying with absolute rights. as per section 8 of the hindu succession act, 1956 the general rules of succession would be applicable in the case of a male hindu dying intestate, relevant portion of which reads as under : - 8. general rules of succession in the case of males. - the property of a male hindu dying intestate shall devolve according to the provisions of this chapter - firstly, upon the heirs, being the relatives specified in class i of the schedule ; xxx xxx xxx in the schedule of the said act, class i heirs are son, daughter, widow, mother and others. in view of the enumeration of the class i heirs in the schedule, the mother and sisters of the defendant nos. 1 and 2 are also co - sharers of the property left intestate by the deceased pemmada venkateswara rao. as could be seen from the agreement of sale - ex. - a1 undisputedly, the third brother and 3 sisters, ( defendant nos. 3 to 6 ) and their mother have not executed the agreement of sale in favour of the plaintiffs. therefore, the same is not enforceable under section 17 of the specific relief act, 1963. the mother lived upto september, 2005, the aforesaid legal heirs of deceased pemmad

##a venkateswara rao got equal shares in the suit schedule property. 24. it is further contended on behalf of the defendants that the first appellate court and the high court have failed in not applying the legal principle laid down by this court in the case of lourdu mari david & ors. ( supra ), wherein this court held that the party who seeks to avail of the equitable jurisdiction of a court and specific performance decree being equitable relief must come to the court with clean hands. in other words, the party who makes false allegations against the defendants does not come with clean hands and therefore, it is not entitled to the equitable relief of specific performance decree from the court. 25. another legal contention urged on behalf of the defendants is that the high court has erroneously come to the conclusion on facts and evidence on record and it has affirmed the divergent findings of fact recorded by the first appellate court without examining and answering the substantial questions of law framed in the second appeal and it has erroneously dismissed the appeal holding that the suit schedule property was not purchased by the plaintiffs for unlawful gain of an individual. the said property is probably purchased by the plaintiffs to put it to use for the purpose of the community. the high court without considering the legal submissions urged on behalf of the defendants adjudicated the rights of the parties ignoring certain facts, evidence on record and legal contentions urged. it has erroneously held that the plaintiffs are entitled for the relief of specific performance while the agreement of sale is not enforceable under section 17 of the specific relief act, 1963, in view of the fact that all the legal heirs of the deceased pemmada venkateswara rao are not parties to the agreement of sale and the defendant nos. 1 and 2 do not have absolute title and right upon the entire suit schedule property. even assuming for the sake of argument that the agreement of sale is valid, the same could not have been enforced against the defendants as the plaintiffs have committed breach of the contract as agreed upon by them as per clause 2 of the penultimate paragraph nos. 2 and 3 of the agreement of sale. the plaintiffs gave a sum of rs. 5, 000 / - & rs. 10, 000 / - as an advance amount towards sale consideration and the remaining sale consideration, i. e. ( i ) an amount of rs. 1, 70, 000 / - which was to be paid within 10 days from the day of vacating the tenants in the property, ( ii )

rs. 50, 000 / - to be paid on 30. 11. 1993 and the remaining sale consideration of rs. 1, 50, 000 / - to be paid on or before 30. 3. 1994 was not paid to the defendant nos. 1 and 2. 26. it is also contended by the learned counsel that the first appellate court and the second appellate court have not exercised their discretionary powers as required under section 20 ( 2 ) of the specific relief act for decreeing the specific performance in favour of the plaintiffs, even though, the defendants have made out a case before the trial court that the plaintiffs are not entitled for the decree for specific performance. therefore, the first appellate court and the second appellate court have gravely erred in not exercising their discretionary power under section 20 ( 2 ) of the specific relief act at the time of passing decree for specific performance in favour of the plaintiffs, which is not only erroneous in law but also vitiated in law and therefore, the same is liable to be set aside. 27. on the contrary, the learned counsel for the plaintiffs has sought to justify the impugned judgment contending that the second appellate court in exercise of its appellate jurisdiction after examining the facts and evidence on record has held that the substantial questions of law framed by the defendants in the second appeal, on the divergent findings of fact recorded by the first appellate court would not arise. decreeing the suit by the first appellate court as prayed by the plaintiffs is correct as it has set aside the decree of the trial court. it is further urged that the high court is right in dismissing the second appeal and therefore, the same does not call for interference by this court as there is no substantial question of law which would arise for consideration. therefore, the learned counsel for the respondent - plaintiffs prayed for dismissal of this civil appeal as the same is devoid of merit. 28. with reference to the above said rival contentions, the following points would arise for our consideration : - whether the plaintiffs are entitled for the decree for specific performance of the agreement of sale ( ex. - a1 ) when agreement of sale entered between the plaintiffs and defendant nos. 1 and 2 who do not have absolute title to the property? whether in the absence of execution of the agreement of sale - ex. - a1 by the other defendants / co - sharers is it valid, even assuming that agreement of sale is valid, there is breach of terms and conditions of the contract on the part of the plaintiffs in not paying the sale consideration amount of rs

. 1, 70, 000 / - within 10 days from the day of vacating the tenants, rs. 50, 000 / - on 30. 11. 1993 and an amount of rs. 1, 50, 000 / - on or before 30. 3. 1994 to the defendants and plaintiffs are entitled for decree of specific performance of the agreement of sale? whether the plaintiffs are entitled for discretionary relief of specific performance under section 20 ( 2 ) of the specific relief act when it has not approached the court with clean hands? what relief? 29. it is an undisputed fact that the suit schedule property is self acquired property by late pemmada venkateswara rao as he had purchased the said property vide sale - deed document no. 5174 of 1970 dated 24. 11. 1970 from his vendors. it is also an undisputed fact that the said property is intestate property. he is survived by his wife, 3 sons and 3 daughters. the said property devolved upon them in view of section 8 of chapter 2 of the hindu succession act as the defendants are class i legal heirs in the suit schedule property. undisputedly, the agreement of sale - ex. - a1 is executed only by defendant nos. 1 and 2. the 3rd son, mother and 3 sisters who have got equal shares in the property have not executed the agreement of sale. in view of the matter, the agreement of sale executed by defendant nos. 1 and 2 who have no absolute right to property in question cannot confer any right whatsoever upon the plaintiffs for grant of decree of specific performance of agreement of sale in their favour. the said agreement is not enforceable in law in view of section 17 of the specific relief act in view of right accrued in favour of defendant nos. 3 to 6 under section 8 of the hindu succession act. the provisions of section 17 of the specific relief act in categorical term expressly state that a contract to sell or let any immovable property cannot be specifically enforced in favour of a vendor or lessor who does not have absolute title and right upon the party. it is worthwhile to extract section 17 of the specific relief act, 1963 here : - 17. - contract to sell or let property by one who has no title, not specifically enforceable. - a contract to sell or let any immovable property cannot be specifically enforced in favour of a vendor or lessor ; ( a ) who, knowing not to have any title to the property, has contracted to

sell or let the property ( b ) who, though he entered into the contract believing that he had a good title to the property, cannot at the time fixed by the parties or by the court for the completion of the sale or letting, give the purchaser or lessee a title free from reasonable doubt. in view of the aforesaid provisions of the specific relief act, the agreement of sale entered between the plaintiffs and some of the co - sharers who do not have the absolute title to the suit schedule property is not enforceable in law. this aspect of the matter has not been properly appreciated and considered by both the first appellate court and the second appellate court. therefore, the impugned judgment is vitiated in law. 30. even assuming for the sake of argument that the agreement is valid, the names of three sons are mentioned in agreement of sale, out of whom the agreement is executed by defendant nos. 1 and 2 and they assured that they would get the signatures of the 3rd brother namely, srinivasa rao and also the remaining 3 sisters. at the time of execution of this agreement signatures were not obtained. therefore, the agreement is not executed by all the co - sharers of the property which fact is evident from the recitals of the document itself. hence, the plaintiffs are not entitled for specific performance decree. this vital factual and legal aspect has been ignored by both the first appellate court and the second appellate court. therefore, the impugned judgment is vitiated both on facts and law. accordingly, the point no. 1 is answered in favour of the defendants. 31. the second point is also required to be answered against the plaintiffs for the following reasons : - as could be seen from the agreement of sale document marked as ex. - a1 and the pleadings of the parties payment of sale consideration was agreed to be paid to the defendant nos. 1 and 2 as per following terms of the agreement : - ( i ) an amount of rs. 1, 70, 000 / - shall be paid by vendee to vendors within 10 days from the day of vacating the tenants in the property, ( ii ) rs. 50, 000 / - shall be paid on 30. 11. 1993., ( iii ) the remaining sale consideration of rs. 1, 50, 000 / - shall be paid on or before 30. 3. 1994. 32. it is an undisputed fact that except payment of rs. 5, 000 / - and rs. 10, 000 / - paid

by the purchaser - plaintiff no. 1 to the defendant nos. 1 and 2 according to the agreement of sale, the remaining installment i. e. an amount of rs. 1, 70, 000 / - which was to be paid to the vendors within 10 days from the day of vacating the tenants in the property was not paid. even assuming that the amount could have been paid had the tenants vacated the schedule property then the remaining part of the sale consideration agreed to be paid as notified under clauses ( ii ) and ( iii ) as per aforesaid paragraph of the agreement of sale undisputedly not paid to the defendant nos. 1 and 2. therefore, there is breach of contract on the part of the plaintiffs as could be seen from the agreement of sale regarding the payment of part sale consideration amount. for this reason itself plaintiffs are not entitled for a decree of specific performance. 33. point no. 3 is also answered in favour of the defendants for the following reasons : - it is an undisputed fact that the plaintiffs have not approached the trial court with clean hands. it is evident from the pleadings of the agreement of sale which is produced for the decree for specific performance of agreement of sale as the plaintiffs did not obtain the signatures of all the co - sharers of the property namely, the mother of the defendants, the third brother and 3 sisters. therefore, the agreement is not enforceable in law as the persons who have executed the sale deed, did not have the absolute title of the property. apart from the said legal lacuna, the terms and conditions of the agreement of sale for payment of sale consideration agreed to be paid by the first plaintiff in installments within the period stipulated as indicated above were not paid. the first appellate court and the high court have not exercised their power under section 20 ( 2 ) of the specific relief act which by itself is the substantial question of law which fell for consideration before the high court as the first appellate court failed to consider this important aspect of the matter and exercised its power while determining the rights of the party, particularly, in the light of the unenforceable contract between the plaintiffs against the defendants as all of them are not parties to the agreement of sale document ( ex. - a1 ) and the executants viz. defendant nos. 1 and 2 have not acquired absolute title to the property in question. therefore, the impugned judgment is vitiated and liable to be set aside. 34. though we have answered the questions of law framed in this appeal in favour of the defendants, the learned

counsel for the defendants during the course of arguments, has offered some monetary compensation in favour of the plaintiffs if this court set aside the impugned judgment and decree of specific performance granted in their favour. though, the defendants on merits have succeeded in this case for the reasons recorded by us on the substantial questions of law that have been framed by us on appreciation of facts and legal evidence on record, having regard to the peculiar facts and circumstances of the case particularly, the execution of agreement of sale, ex. a - 1 by defendant nos. 1 and 2 on 3. 5. 1993, after receiving part consideration of rs. 15, 000 / -, and the submission made by the learned counsel for the defendants, it would be just and proper for this court to award a sum of rs. 6, 00, 000 / - by lump - sum amount of compensation to the plaintiffs within 3 months from the date of receipt of a copy of this judgment as provided under section 22 of the specific relief act. 35. since, we have answered point nos. 1 to 4 in favour of the defendants and against the plaintiffs, the appeal of the defendants must succeed. accordingly, the impugned judgment and decree passed by the high court in affirming the judgment and decree of the first appellate court, is set aside. the judgment and decree of the trial court is restored with modification that the defendants shall pay a sum of rs. 6, 00, 000 / - to the plaintiffs as lump - sum compensation within 3 months from the date of receipt of copy of this order. the appeal is allowed in the above said terms. no costs. j. [ dipak misra ] j. [ v. gopala gowda ] new delhi, august 20, 2014 - - - - - - - - - - - - - - - - - - - - - - -

r. m. lodha, cji. this court remains seized of the problem with regard to the water level of mullaperiyar dam after it had solved on 27. 02. 2006 ( mullaperiyar environmental protection forum [ 1 ] ) because the kerala state legislature enacted the law immediately thereafter fixing and limiting full reservoir level ( frl ) to 136 ft. mullaperiyar dam : 1886 lease agreement2. mullaperiyar dam a masonry dam was constructed pursuant to the periyar lake lease agreement dated 29. 10. 1886 ( 1886 lease agreement ) across periyar river. the construction continued for about eight years and was completed in 1895. the dam is situated at thekkady district in kerala and is owned and operated by the government of tamil nadu. by the 1886 lease agreement between the maharaja of travancore and the secretary of state for india in council, the leased area as set out therein was granted on lease for 999 years from 01. 01. 1886. the length of the main dam is 1200 ft. ( 365. 76 m. ) and top of the dam is 155 ft. ( 47. 24 m. ). the top of solid parapet and maximum height of the dam from deepest foundation are 158 ft. ( 48. 16 m. ) and 176 ft. ( 53. 64 m. ), respectively. the frl of the dam is 152 ft. ( 46. 33 m. ). the original spillway capacity of the dam was 10 vents of 36 x 16 ( 10. 97 m. x 4. 88 m. ). the length of the baby dam is 240 ft. ( 73. 15 m. ). 1979 - 1980 : controversy about safety of the dam3. in 1979 with regard to the safety of the mullaperiyar dam, the government of kerala wrote to the tamil nadu government to take immediate steps to strengthen the dam. simultaneously, the kerala government also requested the central government to depute a team from central water commission ( cwc ) to inspect the dam and suggest strengthening measures. 4. in pursuance of the request from the kerala government, the then chairman, cwc inspected the dam and held a meeting on 25. 11. 1979 in which the officers from tamil nadu and kerala participated. in that meeting, three level measures, ( i ) emergency, ( ii ) medium and (

iii ) long term, were suggested to strengthen the dam. in the meantime, it was recommended that water level in the reservoir be kept at 136 ft. ( 41. 45 m. ) 5. in the second meeting held on 29. 04. 1980, it was opined that after the completion of emergency and medium - term strengthening measures, the water level in the reservoir can be restored up to 145 ft. ( 44. 2 m. ). 1998 : litigation begins6. tamil nadu says that all measures emergency, medium and long term as suggested by the cwc have been undertaken by it but despite that no consensus could be reached between the two state governments ( of tamil nadu and kerala ) to raise the water level in the mullaperiyar reservoir beyond 136 ft. this led to the filing of number of writ petitions in the kerala high court as well as in the madras high court sometime in 1998 on the issue for and against raising of water level in the mullaperiyar reservoir and the safety of the dam. as the controversy was pending before the two high courts and there was likelihood of conflicting judgments, some transfer petitions were filed before this court. 7. on 28. 04. 2000, in the transfer petitions, this court desired union minister of water resources to convene a meeting of the chief ministers of kerala and tamil nadu to amicably resolve the issue. the meeting was convened on 19. 05. 2000 but no consensus could be reached in the meeting as well. however, in that meeting, the union minister of water resources decided to constitute an expert committee to go into the details of the safety of the dam and advise him on raising of water level in the reservoir. 8. on 14. 06. 2000, the expert committee was constituted having the following terms of reference. ( a ) to study the safety of mullaperiyar dam located on periyar river in kerala with respect to the strengthening of dam carried out by the government of tamil nadu in accordance with the strengthening measures suggested by cwc and to report / advise the hon ble minister of water resources on the safety of the dam. ( b ) to advise the hon ble minister of water resources regarding raising of water level in mullaperiyar reservoir beyond 136 ft. ( 41. 45m ) as a result of strengthening of the dam and its safety as at ( a ) above. 9. after initial resistance, the government

of kerala nominated one member to the expert committee. 10. the expert committee gave its final report on 16. 03. 2001. while the matter was under consideration by the expert committee, it also gave certain interim directions. in its report, the expert committee had opined that water level in the mullaperiyar reservoir could be raised to 142 ft. ( 43. 28 m. ) as that will not endanger the safety of the main dam, including spillway, baby dam and earthen bund. first litigation before this court11. despite the above recommendation from the expert committee, the government of kerala continued to resist raising of water level in the reservoir beyond 136 ft. it was then that a writ petition was filed by mullaperiyar environmental protection forum directly before this court wherein diverse prayers were made. this court also transferred the writ petitions which were pending before the kerala high court and madras high court to this court. 12. after hearing the parties, including the two states, this court gave its decision on 27. 02. 2006 permitting the water level in the mullaperiyar dam to be raised up to 142 ft. the state of kerala and its officers were also restrained from causing any obstruction to the above. it was also observed that after the strengthening work was complete to the satisfaction of cwc, independent experts would examine the safety angle before the water level is permitted to be raised up to 152 ft. 2003 act13. kerala irrigation and water conservation act, 2003 ( for short, 2003 act ) was enacted by kerala legislature, which came into force on 18. 09. 2003. 2003 act was enacted to consolidate and amend the laws relating to construction of irrigation works, conservation and distribution of water for the purpose of irrigation and levy of betterment, contribution and water cess on lands benefited by irrigation works in the state of kerala and to provide for involvement of farmers in water utilisation system and for matters connected therewith or incidental thereto. 2003 act was neither referred to nor relied upon by kerala at the time of hearing in mullaperiyar environmental protection forum1. 2006 ( amendment ) act14. on 18. 03. 2006, in less than three weeks of the decision of this court in mullaperiyar environmental protection forum1, the kerala state legislature amended 2003 act by the kerala irrigation and water conservation ( amendment ) act, 2006 [ for short,

2006 ( amendment ) act ) ] [ 2 ]. 15. in the second schedule, appended to the 2006 ( amendment ) act, the mullaperiyar dam owned and maintained by tamil nadu is included as item no. 1 where the height of the frl has been fixed at 136 ft. second litigation before this court : suit by tamil nadu16. the state of tamil nadu immediately thereafter instituted the present suit under article 131 of the constitution of india against the state of kerala. it is necessary to elaborate somewhat on facts as proceedings are in the nature of suit in original jurisdiction of this court. the plaint avers that on coming into force of the states reorganisation act, 1956, ( for short, sr act ), the state of travancore cochin ( part b, state ) was formed. the state of kerala ( first defendant ) is the successor in interest of the state of travancore cochin. the state of tamil nadu is the successor in interest of the governor in council, secretary of state for india. tamil nadu has, thus, pleaded that plaintiff and the first defendant are successors in interest of the original contracting parties of the 1886 lease agreement. 17. it is averred by tamil nadu that on 29. 05. 1970, two supplemental agreements were executed between it and kerala. the two supplemental agreements did not change the basic character of the 1886 lease agreement. by first supplemental agreement, tamil nadu surrendered the fishing rights in the leased lands and also agreed to the upward revision of the rent of the leased land. the second supplemental agreement conferred on tamil nadu, the right to generate power and right to construct all facilities required for power generation. an additional extent of 42. 7 acres was leased to tamil nadu for the said purposes and correspondingly tamil nadu was required to pay to kerala a sum annually as specified in the agreement. tamil nadu claims that the two supplemental agreements have re - affirmed, re - asserted and ratified 1886 lease agreement, which was statutorily protected and continued by section 108 of the sr act. grounds of challenge to 2006 ( amendment ) act18. the challenge to 2006 ( amendment ) act to the extent it affects mullaperiyar dam is laid in the plaint on diverse grounds, some of which are the following : ( a ) the impugned legislation amounts to usurpation of judicial power inasmuch as kerala state legislature has arrogated to itself the role of a judicial body and has itself determined

the questions regarding the dam safety and raising the water level when such questions fall exclusively within the province of the judiciary and have already been determined by this court in its judgment dated 27. 02. 2006. ( b ) 2006 amendment act is beyond the legislative competence of the state of kerala insofar as it affects the mullaperiyar dam in view of section 108 of the sr act which is a law made by parliament under articles 3 and 4 of the constitution, which confer plenary power to traverse all legislative entries in all the three lists including entry 17 list ii. ( c ) the impugned legislation, in its application to the mullaperiyar dam, violates the rule of law and the federal structure and the separation of power under the constitution. the kerala state legislature has taken the law in its own hands after the declaration of law by this court. kerala having participated in the adjudicatory process before this court cannot become a judge in its own cause and seek to reverse the decision of this court because it has gone against it. ( d ) the impugned legislation not only fixes and limits the frl to 136 ft. in direct contravention of the judgment of this court but also proceeds to authorise the dam safety authority of kerala to disobey and disregard the decision of this court by the following, among other provisions : 19. on the above grounds, tamil nadu has sought two - fold relief, ( i ) to declare the 2006 ( amendment ) act passed by the kerala legislature as unconstitutional in its application to and effect on the mullaperiyar dam and ( ii ) to pass a decree of permanent injunction restraining the first defendant from applying and enforcing the impugned legislation interfering with or obstructing the plaintiff from increasing the water level to 142 ft. and from carrying out the repair works as per the judgment of this court dated 27. 02. 2006 in w. p. ( civil ) no. 386 of 2001 with connected matters. the union of india has been impleaded as defendant no. 2 in the suit. defence by kerala20. kerala has traversed the claim of tamil nadu on merits and has also raised objections about the maintainability of the suit. kerala s defence is that the 1886 lease agreement for 999 years lapsed under the provisions of section 7 ( 1 ) ( b ) of the indian independence act, 1947 ( act of 1947 ). from 1947 to 26. 01. 1950, the lease was continued as a temporary lease on annual basis. after 26. 01. 1950

, even the temporary continuation of the lease came to an end. the possession of the land held and continued by the then government of madras and now tamil nadu, after 26. 01. 1950 has no juridical basis. 21. kerala states that 1886 lease agreement, on the basis of which tamil nadu has laid its claim, is an unconscionable contract because of its duration ( 999 years ) as well as the fact that the lease conveys for a small rent a vital resource of kerala. the lease was obtained by the secretary of state for india in england obviously by holding threat of paramountcy over maharaja of travancore, who was his vassal. 22. as regards the two supplemental agreements of 1970, kerala states that these agreements have not been executed in terms of mandatory provisions of article 299 of the constitution and, therefore, they do not constitute contracts in the eye of law. in any event, these agreements do not bind the state legislature at all. 23. about 2006 ( amendment ) act, it is stated that kerala legislature enacted the act regulating the storage levels of 22 dams listed in the second schedule read with section 62a ( 1 ), as these dams fall entirely within the territory of kerala and these dams are considered to be endangered on account of their age, degeneration, degradation, structural or other impediments. kerala states that such law is perfectly valid. under section 62a ( 3 ) of the 2006 ( amendment ) act, the frl can be increased beyond 136 ft. after obtaining prior consent of the dam safety authority headed by a retired judge of the high court. if tamil nadu approaches under section 62a ( 3 ), kerala reserves its right to oppose such plea by demonstrating how such increase would lead to spread of backwater beyond the contour line of 155 ft. and how the flora and fauna including ecology would be destroyed. the impact of increased storages on the safety of the dam will also be demonstrated before the dam safety authority. this was not the matter that was required to be considered by this court in the previous case, since in that case, the focal issue was the implications of the increase in height upon the safety and integrity of the dam. 2006 ( amendment ) act creates a working mechanism to deal with a problem like displacement of those whose lands are likely to be affected by the backwater effect. 24. the competency of kera

##la legislature to enact the 2006 ( amendment ) act is sought to be justified by relying upon entries 17 and 18 of list ii ( state list ) and entries 17, 17 - a and 17 - b of the concurrent list of the seventh schedule to the constitution. kerala also states that it is competent for the kerala legislature to modify the terms of the lease in public interest ( if the lease has survived as contended by the tamil nadu ), as the lease inherited under article 295 of the constitution does not bind the legislature of the state and that it is always open to the legislature to modify such conditions by law. 25. as regards structure of the mullaperiyar dam, kerala s stand is that it is not constructed entirely with rubble masonry in lime mortar. the front and rear faces are constructed of uncoursed rubble masonry in lime mortar. the hearting ( center core ) is of lime surkhi concrete, therefore, dam cannot be considered as homogeneous masonry dam under any circumstances. in view of kerala, a dam could never have been intended to remain for long years without decommissioning at some point of time. for this background, people in kerala living in the downstream region of the mullaperiyar dam have raised serious apprehensions against the safety of the structure. 26. kerala has denied that river periyar is an inter - state river. it has asserted that river periyar is an intra - state river as it rises in quilon district in kerala and traverses only through the territory of kerala before falling into the arabian sea. the total catchment of periyar basin is 5398 sq. km. of which only about 113 or 114 sq. km. lie within the territory of tamil nadu. even this small catchment of 113 sq. km. lying in tamil nadu, is in the downstream region of the mullaperiyar dam. therefore, no water from this catchment is contributed to the kitty of mullaperiyar dam. 27. as regards the earlier judgment of this court, kerala s stand is that the judgment concluded the issue relating to safety of the people and degradation of the environment, apart from issue arising from article 363 of the constitution. the doctrine of res judicata or constructive res judicata has no relevance to the question of powers on the kerala legislature to regulate the storage level of the mullaperiyar dam in larger public interest by legislation. kera