JUDGMENT <NAME>, J.

1. <ORG>, the third respondent in O. P. (M.V.) No. 774/1981 before <ORG>, Ernakulam is the appellant.

2. On a perusal of the memorandum of appeal it is clear that the grounds urged therein are gounds which can be availed of only by the insured.

3. The counsel for the claimant therefore argued that the appeal was not maintainable. Dilating on this argument the counsel submitted that <ORG> was not entitled to take any defence which is not specified in Sub-section (2) of Section 96 of The Motor Vehicles Act, 1939, for short, The Act . Before we consider this case of the claimant we shall briefly state the arguments advanced by the counsel for the appellant. The counsel submits that the appeal may be treated as one filed on behalf of the insured and that is possible in view of Section 110-C(2A) of Chapter VIII of the Act. Had that not been the position there was no need for the <ORG> to allow the appellant to cross-examine the witnesses 'with permission', the counsel submits. He has a further case that in any event, in view of Clause (2) of the conditions incorporated in the policy, the 'appellant has every right to take up the defence, the insured ordinarily can take in a case like this.

4. We shall now consider the argument based on Section 110-C(2A) . Section 110-C(2A) reads:--

"Where in the course of any inquiry, <ORG> is satisfied that--

(i) there is collusion between the person making the claim and the person against whom the claim is made, or

(ii) the person against whom the claim is made has failed to cbntest the claim, it may, for reasons to be recorded by it in writing, direct that the insurer who may be liable in respect of such claim, shall be impleaded as a party to the proceeding and the insurer so impleaded shall thereupon have the right to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made".

This section provides that where in the course of any enquiry <ORG> is either satisfied that there was collusion between the claimant and the person against whom the claim was made or the person against whom the claim was made had failed to contest the claim; then, the <ORG>, for reasons to be recorded in writing, can direct that the insurer who will be liable in respect of the claim shall be impleaded as a party to the proceeding and the insurer so impleaded has the right to contest the claim on all or any of the grounds that are available to the insured.

5. This sub-section would suggest that an order under this section enabling an insurer to contest the claim on all or any of the grounds that are available to the insured, can be passed by the <ORG> only as a sequel to the order directing impleadment of the insurer, he would pass on his being satisfied that either there is collusion between the claimant and the insured or the insured has failed to contest the claim, the counsel representing the con-testing respondents submit. We are not impressed by this argument. This sub-section, in our view, was introduced to safeguard the interests of the insurer which, going by Section 96(2) is not entitled to take any defence which is not specified therein. Apart from Section 96(2) , an insurer had no right to get itself impleaded as a party to the action by the claimant against the insured causing the injury. This right is a statutory right. While conferring this right, Sub-section 2 of Section 96 has imposed certain restrictions in regard to the defences, the insurer can take. The insurer is not entitled to take any defence which is not specified in that sub-section. In short the only method of avoiding the liability provided for under Sub- section 2 is setting up the defences enumerated therein. ( <CITATION> . AIR 1959 SC 1331). The restriction thus imposed on the defences made it impossible for the insurer to contest the claim not properly contested by the insured. The intention of the legislature thus is clear that the sub-section is meant to safeguard the interest of the insurer. The objective of the sub-section could be achieved only if the insurer is allowed to contest the claim on all or any of the grounds available to the insured. However a literal adherence to the words used in the section namely that "an insurer who may be liable in respect of such claim, shall be impleaded as a party to the proceeding and the insurer so impleaded shall thereupon have the right to contest" would result in the insurer who had already been impleaded under Section 96(2) , not getting a chance to contest the claim on all or any of the grounds [available to the insured even if it is established that the insured is hand and glove with the claimant and as such not contesting the claim. A grammatical or literal interpretation of these words, in our view, would lead to manifest absurdity. In such circumstances a construction not quite strictly grammatical or literal can be adopted. (See Craies on Statute Law, 17th Edn., pages 87-88). We therefore are of the view that the insurer who is already a party to the claim petition (having been impleaded under Section 96(2) can also avail of this defence. Such an insurer accordingly can move the <ORG> under this sub-section and obtain the requisite permission to contest the ;claim on all or any of the grounds, the insured would take. If the insurer makes an application in this regard, the <ORG> shall consider the same on merits after notice to the claimant and insured and pass appropriate orders in writing enabling the insurer to contest the claim on the grounds available to |the insured. In the present case there is nothing on record to show that the insurerappellant has obtained such permission from the <ORG> and if that be so the insurer-appellant is not entitled to contest the claim on the grounds that are available only to the, insured. The above argument of the learned counsel therefore is rejected.

6. We, nonetheless are constrained to consider yet another argument of the learned counsel namely, that in any event the appellant is entitled to contest the claim raising the grounds the insured alone can raise, in view of Clause (2) of the conditions incorporated in the policy. Clause (2) reads :--

"No admission offer promise payment or indemnity shall be made or given by or on behalf of the insured without the written consent of the Company which shall be, entitled if it so desires to take over and conduct in the name of the <ORG> the defence or settlement of any claim or to prosecute in the name of the <ORG> for its own benefit any claim for indemnity or damages or otherwise and shall have full discretion in the conduct of any proceedings or in the settlement of any claim and the insured shall give all such information and assistance as the Company may require".

Construing an identical clause, <ORG> of this Court in <ORG> v. <NAME>, (1987) 2 Ker LT 817 no doubt, has observed that the said clause enables the Insurance company to contest the claim on all or any of the grounds, the insured alone could raise, notwithstanding the restrictions imposed by Sub-Section (2) of Section 96 . This observation of <ORG> is based on a decision of <ORG> in <ORG>. <CITATION> , 1974 Acc CJ 234: (AIR 1974 Madras 318). <ORG> while holding so, has made reference to the decision of <ORG> in <CITATION> , AIR 1959 SC 1331, On going through the following observation of this court we are of the view that the above observation is obiter:

"There is some force in this argument of the learned counsel for <ORG>.

However, we do not go into that question since we feel that the decision reported in <CITATION> , AIR 1959 SC 1331, may not be applicable to the case in hand".

In our view the decision of <ORG> does not lend support to the view taken by <ORG> which provides the basis for the above observation of <ORG>. A reference in this connection to the following observations of <ORG> in <ORG> case, is profitable (at p. 1335):--

"There is another ground on which the learned Solicitor-General supported the contention that all defences are open to an insurer excepting those taken away by Sub-section (3). He said that before the Act came into force, an injured person had no right of recourse to the insurer and that it was Section 96(1) that made the judgment obtained by the injured person against the assured binding on the insurer and gave him a right against the insurer. He then said that that being so, it is only fair that a person sought to be made bound by a judgment should be entitled to resist his liability under it by all defences which he can in law advance against the passing of it. Again, we find the contention wholly unacceptable. The Statute has no doubt created a liability in the insurer to the injured person but the statute has also expressly confined the right to avoid that liability to certain grounds specified in it. It is not for us to add to those grounds and therefore to the statute for reasons of hardship .. . ".

<ORG> thereafter stated as follows (at p. 1335):--

"We are furthermore not convinced that the statute causes any hardship. First, the insurer has the right, provided he has reserved it by the policy, to defend the action in the name of the assured and if he does so, all defences open to the assured can then be urged by him and there is no other defence that he claims to be entitled to urge. He can thus avoid all hardship if any, by providing for a right to defend the action in the name of the assured and this he has full liberty to do".

<ORG> made the above observation (underlined portion of the excerpt) at a time when Section 110-C(2A) was not there. Whatever that be, the positive declaration of <ORG> namely "the Statute has no doubt created a liability in the insurer to the injured person but the statute has also expressly confined the right to avoid that liability to certain grounds specified in it. It is not for us to add to those grounds and therefore to the statute for reasons of hardship" disentitles the appellant to rely on Clause (2) of the Insurance policy, and contend for the position that the said clause reserves its right to contest the claim on all or any of the grounds that are available to the insured. Sub-section 2A of Section I10-C, as construed by us, entitled the insurer to contest the claim on all or any of the grounds available to the insured provided the <ORG> grants the requisite permission in terms of the said subsection to the insurer to take up the said defence, There is another aspect that should be borne in mind while considering this question and it is this: The policy issued by the insurer is a policy of insurance in respect of Third-party risk, arising out of the use of motor vehicles, such as complies with the requirements of Chapter VIII of the Act and includes unless the context requires otherwise, a cover note. The policy therefore should be one that complies with the requirements Chapter VIII of the Act. That means any clause or condition in the policy can have force only subject to the provisions contained in Chapter VIII of the Act. Clause 2 of the policy extracted above therefore should be read and understood in the light of Sub-section 2A of Section 110-C. This clause, to the extent to which it runs counter to the above subsection is liable to be ignored. It therefore follows that an insurer with the permission of the <ORG> alone can contest the claim on all or any of the grounds, the insured can raise against the claim.

In the light of what is stated above we are of the view that the appeal is not maintainable.

The appeal fails. Accordingly the same is dismissed. No costs.


REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS.6228-6229 OF 2002 <ORG> ...Appellant Versus <NAME> and others ...Respondents JUDGMENT

<NAME> J :

1. As all the cases involve similar questions of fact and law, they were taken up for hearing together and are being disposed of by this common judgment.

2. We may, however notice the fact of the matter involved in Civil Appeal Nos.6228-6229 of 2002.

Appellant is <ORG> (<ORG>). It is engaged in the business of generation of electricity. It, for the purpose of setting up of a Thermal Power Station at Village Sarna in the District of Ghaziabad in the State of Uttar Pradesh, submitted a proposal to the State of Uttar Pradesh for acquisition of lands situated in Village Dadri, Tehsil Ghaziabad, District Ghaziabad.

3. Pursuant or in furtherance of the said request, a Notification was issued in terms of Section 4 of the Land Acquisition Act, 1894 (for short `the Act') notifying the intention of <ORG> to acquire 105 Bighas 2 Biswas and 16 Biswanis (equivalent to 65.7125 acres) of lands situated at the aforementioned village. It was published in <ORG> on 8th September, 1984

4. On the premise that generation of electricity was extremely urgent and National Capital Region faced acute shortage of electricity, the emergency provisions contained in Sections 17(1) and 17(4) of the Act were invoked. A declaration in terms of Section 6 of the Act was issued on 26th September, 1984. As the provisions of sub-section (4) of Section 17 of the Act were applied, notices were issued on 27th October, 1984 under Section 9 of the Act to the claimants for payment of compensation in respect of the acquired land.

5. However, admittedly prior to taking over possession of land under the emergency powers, the Collector disbursed 80% of the amount of compensation determined in terms of Section 17(3A) of the Act. A possession certificate was issued by the Collector on 16th January, 1984, which reads as under :-

" POSSESSION CERTIFICATE LAND PERMANENT REQUIRED FOR THE PLANNED Industrial Construction of NTPC Plant, District Ghaziabad through <ORG>, Ghaziabad Certified that I on behalf of the Collector, Ghaziabad have on this day the 16.11.1984 taken over the possession of the land detailed below comprising an area 105 B - 2Bs-16B or 6751.3 acres and (not legible (name not ligible) of D.L.A.O's Office to hand over the possession of the same land to <ORG>, Ghaziabad.

Through Sri. D.V. (not ligible), village Sarna, Muradnagar, Pargana Jalalabad, District, Ghaziabad.

Sd/-

(District Land Acquisition Officer, Ghaziabad) Notification u/s. 6 :- 7574/P-3-84-23-26 Land P-84__264-84 published on 29.9.84.

Certified that I on behalf of the Manager, <ORG>, Ghaziabad have to take over possession of the abovementioned land through ______________________ today."

Khasra numbers and area of the plots, possession whereof had been taken, were specified therein.

6. Despite the same, the appellant contended that it had obtained the requisitioned physical possession of land admeasuring 10.215 acres only and the rest of the land continued to remain in possession of the land owners.

It is stated that <ORG> made recommendations that the choice of place for setting up a Thermal Power Station, having regard to its proximity to the National Capital being incorrect, the site thereof should be shifted. Pursuant thereto or in furtherance thereof, the site of the plant was shifted from Sarna, Murad Nagar to Dadri Tehsil. However, the Land Acquisition Officer despite the same proceeded to determine the amount of compensation payable for the acquisition of land.

7. An Award was made on 24th September, 1986.

A reference in terms of Section 18 of the Act was made which was answered by the learned Additional District Judge, Ghaziabad by a order dated 22nd October, 1993 determining the amount of compensation @ Rs.155/- per sq. yards and Rs.115/- per sq. yds. in respect of two references made separately before it. .

8. First appeals were preferred thereagainst in February, 1984 by <ORG> before <ORG>. Inter alia on the premise that possession of the entire land of 65.713 acres had not been obtained, the District Magistrate was approached for issuance of a notification denotifying the acquisition of the balance area i.e. for withdrawal of acquisition of land admeasuring 55.498 acres.

9. By its letter dated 24th February, 1986, <ORG> submitted a proposal as regards denotification of the land, which reads as under :-

" Kindly refer to our letter No.08/GM/13 dated January 8, 1986, on the above subject, addressed to District Land Acquisition Officer and copy endorsed to you (copy enclosed for ready reference). In continuation of para 2 of that letter this is to inform you that there are five cases in which delivery of possession is shown to have been given. These are of villages Sarna, Khurrampur, Sultanpur, Jalalpur and Mohiuddinpur. In Sarna, advance compensation has been paid to most of the persons affected while in Khurrampur only a few persons have been paid the advance compensation. In cases of Sultanpur, Jalalpur and Khurrampur villages - we did not get physical possession and the land owners continue to be in possession their lands even now. In many cases, their crops are standing on the land in question. Further, it may be added that the Land  Acquisition Amendment Act 1984 came into force w.e.f. 24.9.1984. As per sub-section (3A) to Section 17 of the Land Acquisition Act it is made obligatory that before taking possession of any land the Collector shall pay 80% of the compensation to the interested persons. This mandatory provision not having been complied with, the delivery of possession on paper has no legal force and that is why land owners did not allow <ORG> to take possession of these lands. Any possession without such 80% compensation are likely to be vitiated even if the land is proposed to be acquired. Similarly, in the village of Mohiuddinpur Hissali, no compensation has been paid.

It is understood that some mutations in respect of lands of these villages in favour of <ORG> have been made in the revenue records.

Obviously there appears to be some discrepancy. Since no legally valid possession has been given to <ORG> nor land owners have allowed <ORG> to take possession of these lands, mutations in revenue records made need to be set right by necessary correction proceedings.

It is, therefore, requested that the possession certificates of these villages may please be cancelled and original entries in the revenue records may be ordered to be restored.."

10. The said proposal was forwarded to the Commissioner and Director (Land Acquisition), <ORG> by the District Magistrate by his letter dated 11th August, 1994. <ORG> issued a clarification to the Commissioner and Director, <ORG>, by its letter dated 13th August, 2004. On or about 18th August, 1994 an inspection was carried by the Land Acquisition Amin, <NAME> together with the representatives of <ORG> and as per the report submitted pursuant thereto, the appellant is said to have been found in possession of only 10.215 acres of land.

11. On 11th November, 1994 the State of U.P. issued a Notification in terms of Section 48 of the Act.

Aggrieved, respondents filed a writ application before <ORG> on or about 29th August, 1995 and a Division Bench of <ORG> stayed the consequential effect of the Notification dated 11th November, 1994. On or about 9th September, 1997 the appellant filed an application for vacating the stay which having been refused, a Special Leave Petition was filed before this Court, which was dismissed by an order dated 14th October, 1997.

By reason of a judgment and order dated 21st July, 1998 the said writ petition was allowed.

12. Indisputably on the same day, the same Bench passed judgment in <ORG> preferred by appellant (<ORG>) against the order of <ORG> dated 22nd October, 1993. We shall deal with the said matter separately.

13. Mr. <NAME>, learned senior counsel appearing on behalf of the <ORG> would contend that although in the event possession had been taken by the Collector from the land owners, Section 48 of the Act will have no application but in view of the fact that possession of 55.498 acres of land had not been delivered in favour of <ORG> and merely a symbolic possession had been delivered, <ORG> must be held to have committed a serious error in passing the impugned judgment.

14. Mr. <NAME>, learned senior counsel appearing on behalf of the respondents, on the other hand, would contend :-

(i) Having regard to the provisions contained in Section 17(1) of the Act, as the vesting of the acquired land takes place immediately, the impugned Notification dated 1th November, 1994 has rightly been held to be illegal and without jurisdiction.

(ii) Having regard to the certificate of possession issued by the Collector on 16th November, 1984 under the provisions of the Act, stating possession of entire land had been taken and the details thereof having been mentioned in the said certificate itself, it is too late in the day for the appellant/<ORG> to contend that possession of a major portion of the land had was not taken over.

(iii) The fact that the possession of the entire land had been taken over not only would appear from the materials brought on record during the land acquisition proceedings culminating in passing of the Award but also from the award of <ORG> as also the judgment of <ORG> in the First Appeals and in that view of the matter, it would not be correct to contend that <ORG> could not have entered into such disputed questions of fact, particularly when the validity or otherwise of the proceedings is not in question.

15. A Notification under Section 4 of the Act was issued. Emergency provisions contained in Section 17 of the Act were resorted to. Sub-sections (1), (3A) and 4 of the Act read as under :-

(1) In cases of urgency, whenever the Appropriate <ORG> so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in section 9 , sub-section (1), 1 [take possession of any waste or arable land needed for a public purpose]. Such land shall thereupon vest absolutely in the <ORG>, free from all encumbrances.

(2) .... .... .... (3) .... .... ....

(3A) Before taking possession of any land under sub-section (1) or sub-section (2), the Collector shall, without prejudice to the provisions of sub- section (3),--

(a) tender payment of eighty per centum of the compensation for such land as estimated by him to the persons interested entitled thereto, and

(b) pay it to them, unless prevented by some one or more of the contingencies mentioned in section 31 , sub-section (2), and where the Collector is so prevented, the provisions of section 31 , sub-section (2), (except the second proviso thereto), shall apply as they apply to the payment of compensation under that section.

(4) In the case of any land to which, in the opinion of the appropriate Government, the provisions of sub-section (1) or sub-section (2) are applicable, the appropriate Government may direct that the provisions of section 5A shall not apply, and, if it does not so direct, a declaration may be made under section 6 in respect of the land at any time 4 [after the date of the publication of the notification under section 4 , sub-section (1)."

16. Indisputably the said provisions were been taken recourse to and, thus, the lands under acquisition vested absolutely in the Government.

17. Concedingly, a declaration in terms of Section 6 of the Act was issued whereafter notices to persons interested under Section 9 thereof had also been issued. Award had also been published.

Section 16 of the Act providing for taking over possession of the land after making the Award would not be applicable in this case as possession is said to have already been taken over in terms of sub-section (1) of Section 17 thereof.

It is in the aforementioned backdrop of factual matrix, the power of the <ORG> to withdraw the Notification of acquisition as envisaged under Section 48 of the Act falls for our consideration.

The said provision is as under :-

" Section 48 - Completion of acquisition not compulsory, but compensation to be awarded when not completed (1) Except in the case provided for in section 36 , the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken.

(2) Whenever the government withdraws from any such acquisition, the Collector shall determine the amount of compensation due for the damage suffered by the owner in consequence of the notice or of any proceedings thereunder, and shall pay such amount to the person interested, together with all costs reasonably incurred by him in the prosecution of the proceedings under this Act relating to the said land.

(3) The provisions of Part III of this Act shall apply, so far as may be, to the determination of the compensation payable under this section."

18. It is a well settled proposition of law that in the event possession of the land, in respect whereof a Notification had been issued, had been taken over, the State would be denuded of its power to withdraw from the acquisition in terms of Section 48 of the Act.

19. Whether actual or symbolic possession had been taken over from the land owners is essentially a question of fact. Taking over of possession in terms of the provisions of the Act would, however, mean actual possession and not symbolic possession. The question, however, is as to whether the finding of fact arrived at by <ORG> that physical possession, indeed, had been taken over by the Collector is correct or not.

20. We have noticed hereinbefore the background facts. The emergency provisions were resorted to. Even 80% of the compensation had been paid way back in 1984. Had possession of the vacant land been not taken, the question of payment of 80 % of compensation would not have arisen. All other legal requirements to invoke the said provision have been complied with.

21. Mr. <NAME>, however, would draw our attention to a letter dated 24.2.1986 issued by the appellant to the District Magistrate to contend that even payment of 80% of the compensation had not made and, thus, the purported delivery of possession was merely a papr transaction. Our attention had further been drawn to the written statement filed on behalf of the appellant before the reference court, which reads as under :

"That out of the total acquired area in question the respondent utilized only a portion of the land by construction of their Satellite building while remaining area could not be put into use by the respondent, since the land is in actual physical possession of the land owners and they are deriving all the benefits from the land thereof and the respondent is having only a symbolic possession over the same."

22. We, however, have not been able to persuade ourselves to agree with the aforementioned submissions. The Officers of the appellant themselves were parties in regard to the process of actual physical possession obtained on its behalf by the Collector.

23. Even in the award made by the Special Land Acquisition Collector, the invocation of the provisions of Section 17 of the Act as also obtaining of possession of the land in question had clearly been found.

We may notice some of the statements recorded therein :

"10. Whether Sec.17 is in force : Yes 11. Date of the right : 16.11.84 XXX XXX XXX 18. Amount of Interest : 9% payable from 16.11.84 i.e. from the date of acquisition 15% further from that date payable to and owner."

We may quote hereinbelow the relevant portions from the said award :

"4. 12% additional from 8.9.84 i.e. from the date of notification till date of possession i.e. on 16.11.84 : Rs.1,46,531.69"

24. From a perusal of the award, therefore, it is evident that not only the provisions of Section 17 of the Act were found to have been implemented but even interest had been granted from the date of acquisition, namely, from the date of taking over of possession. Interest had also been granted in terms of Section 23A of the Act from the date of notification till the date of actual taking over of possession. <ORG> also, in its judgment, held :

"(2) The petitioners will get 12% per annum as additional amount on the above market value for the period commencing from the date of publication of the notification u/s. 4(1) dated 6.9.84 to the date of possession dated 16.11.84."

25. In the memo of appeal preferred by the appellant before <ORG> a statement was made that the possession of the land was taken by invoking Section 17 of the Act on 16.11.1984 and, thus, interest at the rate of 15% per annum on the excess amount under the provisions of Section 28 of the Act would be payble only in the case where such excess payment had not been made before the expiry of one year period from the date on which the possession has been taken and as determined by the <ORG>. In view of the stand taken by the appellant before <ORG> as also the reference court and <ORG>, in our opinion, it is estopped and precluded from raising a plea contra. The Reference <ORG>, in paragraph 4 of its judgment, also noticed that the possession of the land has been taken over on 16.11.1984. No objection was taken before the Reference <ORG> that possession had not been taken and, thus, interest was not payable. No issue was also framed in that regard.

Even before us, the only ground taken was that the land could not be put to use which is a non-issue.

26. Strong reliance has been placed upon a decision of this Court in <CITATION> , [ AIR 1975 SC 1967 =  ], wherein it has been held :-

"We think it is enough to state that when the <ORG> proceeds to take possession of the land acquired by it under the Land Acquisition Act , 1894, it must take actual possession of the land, since all interests in the land are sought to be acquired by it. There can be no question of taking "symbolical" possession in the sense understood by judicial decisions under the Code of Civil Procedure. Nor would possession merely on paper be enough. What the Act contemplates as a necessary condition of vesting of the land in the <ORG> is the taking of actual possession of the land. How such possession may be taken would depend on the nature of the land. Such possession would have to be taken as the nature of the land admits of. There can be no hard and fast rule laying down what act would be sufficient to constitute taking of possession of land. We should not, therefore, be taken as laying down an absolute and inviolable rule that merely going on the spot and making a declaration by beat of drum or otherwise would be sufficient to constitute taking of possession of land in every case. But here, in our opinion, since the land was lying fallow and there was no crop on it at the material time, the act of the Tehsildar in going on the spot and inspecting the land for the purpose of determining what part was waste and arable and should, therefore, be taken possession of and determining its extent, was sufficient to constitute taking of possession. It appears that the appellant was not present when this was done by the Tehsildar, but the presence of the owner or the occupant of the land is not necessary to effectuate the taking of possession. It is also not strictly necessary as a matter of legal requirement that notice should be given to the owner or the occupant of the land that possession would be taken at a particular time, though it may be desirable where possible, to give such notice before possession is taken by the authorities, as that would eliminate the possibility of any fraudulent or collusive transaction of taking of mere paper possession, without the occupant or the owner ever coming to know of it."

This decision, therefore, itself is an authority for the proposition that no absolute rule in this behalf can be laid down.

<CITATION> . [] and <CITATION> . [], the same view has been reiterated.

27. These decisions, as noticed hereinbefore, do not lay down an absolute rule. The question as to whether actual physical possession had been taken in compliance of the provisions of Section 17 of the Act or not would depend upon the facts and circumstances of each case.

28. When possession is to be taken over in respect of the fallow or Patit land, a mere intention to do so may not be enough. It is, however, the positive stand by the appellant that the lands in question are agricultural land and crops used to be grown therein. If the lands in question are agricultural lands, not only actual physical possession had to be taken but also they were required to be properly demarcated. If the land had standing crops, as has been contended by Mr. <NAME>, steps in relation thereto were required to be taken by the Collector. Even in the said certificate of possession, it had not been stated that there were standing crops on the land on the date on which possession was taken. We may notice that delivery of possession in respect of immoveable property should be taken in the manner laid down in Order XXI Rule 35 of the Code of Civil Procedure.

29. It is beyond any comprehension that when possession is purported to have been taken of the entire acquired lands, actual possession would be taken only of a portion thereof. The certificate of possession was either correct or incorrect. It cannot be partially correct or partially incorrect. Either the possession had actually been delivered or had not been delivered. It cannot be accepted that possession had been delivered in respect of about 10 acres of land and the possession could not be taken in respect of the rest 55 acres of land. When the provisions of Section 17 are taken recourse to, vesting of the land takes effect immediately.

30. Another striking feature of the case is that all the actions had been taken in a comprehensive manner. The Collector in his certificate of possession dated 16th November, 1984 stated that the possession had been taken over in respect of the entire land; the details of the land and the area thereof had also been mentioned in the certificate of possession; even <ORG> in its letter dated 24th February, 1986 stated that possession had not been delivered only in respect of land situated in four villages mentioned therein. Indisputably <ORG> got possession over 10.215 acres of land. It raised constructions thereover. It is difficult to comprehend that if the <ORG> had paid 80% of the total compensation as provided for under sub-section (3A) of Section 17 of the Act, out of 65.713 acres of land it had obtained possession only in respect of about 10.215 acres of land and still for such a long time it kept mum. Ex-facie, therefore, it is difficult to accept that merely symbolic possession had been taken.

<CITATION> [(1970 (2) SCC 149], this Court has stated the law, thus :

"But these observations do not assist the case of the appellant. It is clearly implicit in the observations that after possession has been taken pursuant to a notification under Section 17(1) the land is vested in the <ORG>, and the notification cannot be cancelled under Section 21 of the General Clauses Act, nor can the notification be withdrawn in exercise of the powers under Section 48 of the Land Acquisition Act. Any other view would enable the State <ORG> to circumvent the specific provision by relying upon a general power. When possession of the land is taken under Section 17(1) , the land vests in the <ORG>. There is no provision by which land statutorily vested in the <ORG> reverts to the original owner by mere cancellation of the notification."

The said view was affirmed in <CITATION> . [], in the context of applicablility of Section 11A of the Act, it was stated :

"When Section 17(1) is applied by reason of urgency, <ORG> takes possession of the land prior to the making of the award under Section 11 and thereupon the owner is divested of the title to the land which is vested in the <ORG>. Section 17(1) states so in unmistakable terms. Clearly, Section 11-A can have no application to cases of acquisitions under Section 17 because the lands have already vested in the <ORG> and there is no provision in the said Act by which land statutorily vested in the <ORG> can revert to the owner."

<CITATION> . [], a Three Judge Bench of this Court opined as under :

"12. The provisions of sub-section (4) of Section 52 are somewhat similar to Section 17 of the Land Acquisition Act, 1894. Just as publication of a notification under Section 52(1) vests the land in the <ORG>, free from all encumbrances, as provided by Section 52(4) , similarly when possession of land is taken under Section 17(1) the land vests absolutely in the <ORG> free from all encumbrances. A question arose before this Court that if there is a non-compliance with the provisions of Section 5-A and an award is not made in respect to the land so acquired, would the acquisition proceedings lapse. <CITATION> . this Court held that once possession had been taken under Section 17(1) and the land vested in the <ORG> then the <ORG> could not withdraw from acquisition under Section 48 and the provisions of Section 11- A were not attracted and, therefore, the acquisition proceedings would not lapse on failure to make an award within the period prescribed therein. It was further held that non-compliance of Section 17 (3- A), regarding part payment of compensation before taking possession, would also not render the possession illegal and entitle the <ORG> to withdraw from acquisition. The aforesaid principle has been reiterated by this Court in <CITATION> . and <CITATION> . In view of the aforesaid ratio it follows that the provisions of Section 11-A are not attracted in the present case and even if it be assumed that the award has not been passed within the stipulated period, the acquisition of land does not come to an end."

<CITATION> . [], it was held :

"... <CITATION> .6, the question arose: whether notification under Section 4(1) and the declaration under Section 6 get lapsed if the award is not made within two years as envisaged under Section 11-A ? A Bench of three Judges had held that once possession was taken and the land vested in the <ORG>, title to the land so vested in the State is subject only to determination of compensation and to pay the same to the owner. Divesting the title to the land statutorily vested in the <ORG> and reverting the same to the owner is not contemplated under the Act. Only Section 48(1) gives power to withdraw from acquisition that too before possession is taken. That question did not arise in this case. The property under acquisition having been vested in the appellants, in the absence of any power under the Act to have the title of the appellants divested except by exercise of the power under Section 48(1) , valid title cannot be defeated. The exercise of the power to quash the notification under Section 4(1) and the declaration under Section 6 would lead to incongruity."

31. Yet again, in <CITATION> ) by Lrs. [], this <ORG> has categorically laid down that when the accepted mode of taking possession of the acquired land is resorted to, that would constitute taking possession of the land.

The said principle has been reiterated in <CITATION> . [], in the following terms :

"43. In our considered view, <ORG> has erred in holding that <ORG> could release the lands in exercise of its power under Section 48 of the Land Acquisition Act, 1894 from the acquisition."

It has further been held :

"46. The possession of the land in question was taken in the year 1966 after the passing of the award by the Land Acquisition Officer. Thereafter, the land vested in the <ORG> which was then transferred to <ORG>, predecessor-in-interest of the appellant. After the vesting of the land and taking possession thereof, the notification for acquiring the land could not be withdrawn or cancelled in exercise of powers under Section 48 of the Land Acquisition Act. Power under Section 21 of the General Clauses Act cannot be exercised after vesting of the land statutorily in the State <ORG>."

{See also <CITATION> . []}.

32. <ORG>, therefore, in our opinion, was correct in its view.

33. We may now consider the question as to whether the issue as to whether possession of the acquired land had actually been taken over or not being a disputed question of fact could not have gone into by <ORG>. It is not a case where oral evidence was required to be taken. There is no law that <ORG> is denied or debarred from entering into a disputed question of fact. The issue will have to be determined keeping in view the fact situation obtaining in each case. If a disputed question can be determined on the basis of the documents and/or affidavit, <ORG> may not ordinarily refuse to do so. In a given case, it may also examine witnesses.

<CITATION> . [], it was held :

"14. <ORG> observed that they will not determine disputed question of fact in a writ petition. But what facts were in dispute and what were admitted could only be determined after an affidavit in reply was filed by the State. <ORG>, however, proceeded to dismiss the petition in limine. <ORG> is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner's right to relief questions of fact may fall to be determined. In a petition under Article 226 <ORG> has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is, it is true, discretionary, but the discretion must be exercised on sound judicial principles. When the petition raises questions of fact of a complex nature, which may for their determination require oral evidence to be taken, and on that account <ORG> is of the view that the dispute may not appropriately be tried in a writ petition, <ORG> may decline to try a petition. Rejection of a petition in limine will normally be justified, where <ORG> is of the view that the petition is frivolous or because of the nature of the claim made dispute sought to be agitated, or that the petition against the party against whom relief is claimed is not maintainable or that the dispute raised thereby is such that it would be in appropriate to try it in the writ jurisdiction, or for anologous reasons.

15. From the averments made in the petition filed by the appellants it is clear that in proof of a large number of allegations the appellants relied upon documentary evidence and the only matter in respect of which conflict of facts may possibly arise related to the due publication of the notification under Section 4 by the Collector.

16. In the present case, in our judgment, <ORG> was not justified in dismissing the petition on the ground that it will not determine disputed question of fact. <ORG> has jurisdiction to determine questions of fact, even if they are in dispute and the present, in our judgment, is a case in which in the interests of both the parties <ORG> should have entertained the petition and called for an affidavit in reply from the respondents, and should have proceeded to try the petition instead of relegating the appellants to a separate suit."

Such a direction has been issued, as noticed hereinbefore, even in a land acquisition matter.

Yet again, in <CITATION> [], this Court has held :

"10. It is not necessary for this case to express an opinion on the point as whether the various provisions of the Code of Civil Procedure apply to petitions under Article 226 of the Constitution.

Section 141 of the Code, to which reference has been made, makes it clear that the provisions of the Code in regard to suits shall be followed in all proceedings in any court of civil jurisdiction as far as it can be made applicable. The words "as far as it can be made applicable" make it clear that, in applying the various provisions of the Code to proceedings other than those of a suit, the court must take into account the nature of those proceedings and the relief sought. The object of  Article 226 is to provide a quick and inexpensive remedy to aggrieved parties. Power has consequently been vested in <ORG> to issue to any person or authority, including in appropriate cases any government, within the jurisdiction of <ORG>, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. It is plain that if the procedure of a suit had also to be adhered to in the case of writ petitions, the entire purpose of having a quick and inexpensive remedy would be defeated. A writ petition under Article 226 , it needs to be emphasised, is essentially different from a suit and it would be incorrect to assimilate and incorporate the procedure of a suit into the proceedings of a petition under Article 226. <ORG> is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner's right of relief, questions of fact may fall to be determined. In a petition under Article 226 <ORG> has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is no doubt discretionary, but the discretion must be exercised on sound judicial principles. When the petition raises complex questions of fact, which may for their determination require oral evidence to be taken, and on that account <ORG> is of the view that the dispute should not appropriately be tried in a writ petition, <ORG> may decline to try a petition (see <CITATION> ). If, however, on consideration of the nature of the controversy, <ORG> decides, as in the present case, that it should go into a disputed question of fact and the discretion exercised by <ORG> appears to be sound and in conformity with judicial principles, this Court would not interfere in appeal with the order made by <ORG> in this respect."

In <NAME> (supra), it has been observed :-

"4. It is seen that the entire gamut of the acquisition proceedings stood completed by 17-4- 1976 by which date possession of the land had been taken. No doubt, Shri <NAME> has contended that the appellant still retained their possession. It is now well-settled legal position that it is difficult to take physical possession of the land under compulsory acquisition. The normal mode of taking possession is drafting the panchnama in the presence of panchas and taking possession and giving delivery to the beneficiaries is the accepted mode of taking possession of the land. Subsequent thereto, the retention of possession would tantamount only to illegal or unlawful possession."

34. Recently the question came up for consideration before a Division Bench of this Court in <CITATION> , [  ], wherein it was held :-

"9. On the facts pleaded it is doubtful whether the Government can withdraw from the acquisition, since the case of the <ORG> and <ORG> is that possession has been taken and plans finalised to fulfil the purpose for which the acquisition was made. There is no plea in the writ petition that a request for reconveyance was made in terms of Section 48-B of the Act as amended in the <ORG> of Tamil Nadu."

It was furthermore held :-

"15. We may also notice that once a piece of land has been duly acquired under the Land Acquisition Act , the land becomes the property of the <ORG>.

The <ORG> can dispose of the property thereafter or convey it to anyone, if the land is not needed for the purpose for which it was acquired, only for the market value that may be fetched for the property as on the date of conveyance. The doctrine of public trust would disable the <ORG> from giving back the property for anything less than the market value. <CITATION> in a similar situation, this Court observed:

"The question emerges whether the <ORG> can assign the land to the erstwhile owners? It is settled law that if the land is acquired for a public purpose, after the public purpose was achieved, the rest of the land could be used for any other public purpose. In case there is no other public purpose for which the land is needed, then instead of disposal by way of sale to the erstwhile owner, the land should be put to public auction and the amount fetched in the public auction can be better utilised for the public purpose envisaged in the Directive Principles of the Constitution. In the present case, what we find is that the executive order is not in consonance with the provision of the Act and is, therefore, invalid. Under these circumstances, <ORG> is well justified in declaring the executive order as invalid. Whatever assignment is made, should be for a public purpose. Otherwise, the land of the <ORG> should be sold only through the public auctions so that the public also gets benefited by getting a higher value."

35. Furthermore the Collector under the Act was acting as a statutory authority. When possession has been shown to have been taken over not only in terms of sub-section (1) of Section 17 of the Act but also by grant of the certificate and other documents, illustration (e) of Section 114 of the Evidence Act 1872, must be held to be applicable. Once such a presumption is drawn the burden would be on the <ORG> to prove the contra. The burden of proof could be discharged only by adducing clear and cogent evidence. Not only the aforementioned documents but even the judicial records clearly show that the possession had in fact been taken.

36. Mr. <NAME>, however, made an alternative submission before us that this <ORG>, in exercise of its jurisdiction under Article 142 of Constitution of India, may issue necessary directions so as to put a quietus to the entire matter. This <ORG> cannot foresee all the eventualities.

37. However, before us Mr. <NAME>, learned senior counsel appearing on behalf of the respondents, when questioned, categorically stated that in view of the statement made in the counter affidavit, the positive case of the respondents is that they had not been in possession.

If the aforementioned statement made by the respondents is found to be incorrect, legal steps as is permissible in law may be taken. Furthermore, if the respondents and/or any other person are found to be in possession of the lands which were the subject matter of acquisition in terms of the notification under Section 4 of the Act, appropriate steps for eviction therefor can be initiated. It goes without saying that the authorities of the State of Uttar Pradesh shall render all cooperation to the appellant in this behalf.

38. It is furthermore neither in doubt nor in dispute that the initiation of the acquisition proceedings at the instance of the appellant was for setting up of a thermal power station. It had to be shifted to another site only because <ORG> asked it to do so keeping in view the ecological perspective in mind. It is, therefore, permissible for the appellant to put the land in question which has vested in it for another purpose which would come within the purview of any public purpose as has been noticed by this Court in <NAME> (supra) and for any other purpose as has been noticed by this Court in Keerwani Ammal (Supra) Yet again in <CITATION> [], this Court has held :

"12. If the land was not used for the purpose for which it was acquired, it was open to <ORG> to take action but that did not confer any right on the respondents to ask for restitution of the land. As already noticed, <ORG> in this regard has already initiated proceedings for resumption of the land. In our view, there arises no question of any unjust enrichment to the appellant Company."

<CITATION> . [], it was contended :

"16. The learned Additional Solicitor General appearing on behalf of the respondents submitted that having regard to the authorities on the subject the question is no longer res integra. It is not as if lands acquired for a particular public purpose cannot be utilised for another public purpose. He contended that as long as the acquisition is not held to be mala fide, the acquisition cannot be invalidated merely because the lands which at one time were proposed to be utilised for a particular public purpose, were later either in whole or in part, utilised for some other purpose, though a public purpose. He, therefore, submitted that some change of user of the land, as long as it has a public purpose, would not invalidate the acquisition proceeding which is otherwise valid and legal."

It was held :

"23. Referring to the facts of the instant case, it cannot be disputed that the planned development of Delhi for which purpose the land was acquired under Section 4 of the Act is wide enough to include the development and expansion of an airport within the city of Delhi. Thus it cannot be said that the land is actually being utilised for any purpose other than that for which it was acquired.

The only difference is that whereas initially the development work would have been undertaken by <ORG> or any other agency employed by it, after the constitution of <ORG>, the said development work had to be undertaken by the newly constituted authority. Thus there has been no change of purpose of the acquisition. All that has happened is that the development work is undertaken by another agency since constituted, which is entrusted with the special task of maintenance of airports. Since the said authority was constituted several years after the issuance of the notification under Section 4 , the acquisition cannot be invalidated only on the ground that the public purpose is sought to be achieved through another agency. This, as we have noticed earlier, was necessitated by change of circumstances in view of the creation of the authority i.e. <ORG>. Moreover, since there is no change of public purpose for which the acquired land is being utilised, the acquisition cannot be invalidated on that ground. The purpose for which the lands are being utilised by a governmental agency is also a public purpose and as we have noticed earlier, would come within the ambit of the public purpose declared in Section 4 notification. Therefore, the acquisition cannot be challenged on the ground that the acquired lands are not being utilised for the declared public purpose. Having regard to the facts of the case it cannot be contended, nor has it been contended, that the notification under Section 4 of the Act was issued mala fide."

39. For the reasons aforementioned, the appeals, being devoid of any merit, are dismissed subject to the observations made hereinbefore with costs. Counsel fee assessed at Rs.50,000/- in each of these appeals.

.....................................J. [S.B. Sinha] .....................................J. [Cyriac Joseph] New Delhi;

July 16, 2009


PETITIONER: STATE OF ORISSA & ANR. Vs. RESPONDENT: <NAME> DATE OF JUDGMENT: 11/04/1969 BENCH: SIKRI, S.M. BENCH: SIKRI, S.M. BACHAWAT, R.S. HEGDE, K.S. CITATION: 1969 AIR 1249 1970 SCR (1) 255 1969 SCC (2) 149 CITATOR INFO : R 1972 SC2350 (14) RF 1975 SC2045 (7,13) RF 1977 SC 965 (14) RF 1991 SC 471 (10,13) ACT: The <ORG> (Regulation of Seniority) Rules, 1954, r. 3(3) (b), second proviso-Select List, Meaning of- Whether second proviso governs main rule or first proviso- Whether choice of date for fixing seniority arbitrary and discriminatory. HEADNOTE: In pursuance of an agreement dated October 21, 1946, between the Central and Provincial Governments regarding the constitution of an <ORG>, certain draft 'rules were framed and the appellant <ORG> constituted a <ORG> under the draft rules for preparing a list of <ORG> Police Officers who are considered suitable for promotion. The <ORG> prepared a list of officers 'fit for trial to promotion posts' in the <ORG> and the list was approved by the <ORG> on September 6, 1951. On October 29, 1951, the All India Services Act , 1951, came into force and the <ORG> (Regulation of Seniority) Rules, 1954 and the Indian Police. Service (Appointment by Promotion) Regulation, 1955, were framed under the Act. Rule 3 (3) (b) of the Seniority Rules provides that the year of allotment of an officer appointed to the service by promotion shall be the Year of allotment of the junior most direct-recruit who officiated continuously in a senior post from a date earlier than the date of commencement of continuous officiation by the promotee. The second proviso to, the rule provides that an officer shall be deemed to have officiated continuously in a senior post prior to the date of the inclusion of his name in the Select List if the period of such officiation was approved by <ORG>. The respondent was appointed as a Dy. S.P. in the appellant-<ORG> in 1947. In 1950, he was confirmed as D.S.P. and he was officiating continuously from 1951 to 1957 in senior officiating appointments of the <ORG> His name was included in the List of officers considered suitable for pro. motion which was approved by the <ORG> on September 6, 195 1, and in similar 'fit for trial' lists prepared for the years 1952 and 1954. On November 10, 1955, <ORG>, set up in accordance with Regulation 3 of the Promotion Regulation, selected and recommended officers for officiating appointment in the <ORG> and the respondent's name was included in that list also. That list was approved by the <ORG> on February 10, 1956. On December 1, 1956, <ORG> consulted the <ORG> as to whether this list of November 10, 1955 could be treated as the 'Select List' within the meaning of the second proviso to r. 3(3)(b) of the Seniority Rules. The <ORG> wrote back saying that it could not be so considered, because, the <ORG> only recommended officers who were considered suitable to hold <ORG> posts in an officiating capacity and not for appointment to <ORG> The Selection <ORG> of the appellant-<ORG>, therefore, on February 15, 1957, prepared a 'Select List' for substantive posts in the <ORG> and included the respondent's name in it. <ORG> decided that the officiation in the senior posts of the officers included in the 'fit for trial' lists could not be counted for the purpose of determining the seniority of such officers under the Seniority Rules. On July 10, 1957 the respondent was appointed to the <ORG>, and on July 22, 1958, <ORG> wrote to the appellant-<ORG> that the approved continuous officiation of the 256 respondent for seniority commenced from February 10, 1956 the date on which the <ORG> approved the 'fit for continuous officiation list' containing the respondent"s name, and, on that basis, the respondent was allotted the year 1951 as his year of allotment for purposes of seniority under r. 3 (3) (b) of the Seniority Rules. The respondent filed a writ petition in <ORG> contending that : (1) Rule 3 (3) (b)is not governed by its second proviso, 'that his case was governed by the main r. 3 (3) (b) and on the basis of his continuous officiation in a senior post as an officer included in the Select List of the years 1952 and 1954 approved by the <ORG> and accepted by <ORG> his year of allotment should be 1948 which was the year of allotment of a junior most direct-recruit officer who officiated continuously in a senior post from a date earlier than the date of commencement of the officiation by the respondent; (2) Even if the second proviso governed the main r. 3(3)(b) and only the list of February 15, 1957 was the Select List his year-of allotment should be 1948, on the basis that his continuous officiation throughout from 1951 to 1957 was approved by <ORG> by inclusion in the approved lists; (3). The choice of February 10, 1956 mentioned in <ORG> communication dated July 22, 1958 was arbitrary; and (4) There was discrimination between him and another officer. <ORG> allowed the writ petition. In appeal to this Court, HELD : (1) The object of the second proviso is to cut down the period of officiation which could be taken into consideration under r. 3 (3) (b). Therefore, the second proviso governs r. 3 (3) (b). The Promotion Regulation and the draft rules acted upon before the Promotion Regulation came into force, show that the <ORG> preparing the Select Lists should think of substantive appointments in the service and not officiating appointments. In the present case when the lists of 1951, 1952 and 1954 were prepared the names were not selected for the purpose of substantive appointment but only for the purpose of officiation. Therefore, the 'fit for trial' lists could not be deemed to be 'Select Lists' and hence the respondent's officiation was not continuous officiation of -an officer in the 'Select List'. Only the List of February 15, 1957. could be deemed to be such Select List. Though in the letter of July 22, 1958, there was a reference to a list called 'fit for continuous officiation list', there was in fact no such list and the expression referred only to the list of November 10, 1955, of officers for promotion in an ,officiating capacity. [264 C, E; 265 A, C-D, G-266 A] (2) Since the 'second proviso governs the main r. 3(3)(b), it was for <ORG> to approve or not to approve, the period of officiation prior to the date of inclusion of the respondent in the Select List of February 15, 1957. In the present case, <ORG>, after applying its mind to the problem, approved the period from February 10, 1956 to July 10, 1957; and there was no evidence to show that the period of officiation prior to February 10, 1956, of the respondent was approved by <ORG>. Such approval had to be accorded after the appointment to the <ORG> [265 E-,G; 266 <CITATION> ,  2 S.C.R. 325, referred to. (3) The date February 10, 1956, was not arbitrarily chosen. It has -a definite relation to the question of approved period of officiation, becaue, it was on that date that the <ORG> approved the inclusion of 257 the respondent in the list for officiating appointment for the first time after the Promotion Regulation had come into force. [266 B-C] (4) There was no discrimination between the respondent and the. other officer, because, the latter was appointed on June 1, 1955, after the Seniority Rules had come into force and was governed by the first proviso to r. 3(3)(b). [266 E- F] JUDGMENT:

CIVIL APPELLATE JURISDICTION Civil Appeal No. 2162 of 1968.

Appeal from the judgment and order dated October 23, 1967, of <ORG> in O.J.C. No. 156 of 1965. <NAME>, Attorney-General, <NAME> and <NAME>, for the appellants.

<NAME>, <NAME> and <NAME>, for the respondent.

The Judgment of the Court was delivered by <NAME>, J. This is an appeal by certificate granted by <ORG> under art. 133 (1) (c) of the Constitution from the judgment and order of <ORG> in Writ Petition O.J.C. No. 156 of 1965 filed by <NAME>, I.P.S., hereinafter-referred to as the petitioner, against the State of Orissa and the Union of India. In this petition the petitioner had prayed for a writ of mandamus directing the respondents to fix the petitioner's seniority and year of allotment as 1948 instead of the year 1951 fixed by <ORG>. <ORG> quashed the order of <ORG>, dated July 22, 1958, and directed <ORG> to fix the year of allotment and, seniority of the petitioner in accordance with its judgment and, the law. In order to appreciate the points raised before us it is necessary to set out the facts somewhat in detail. The petitioner was appointed as Deputy Superintendent of Police in the State of Orissa on January 1, 1947. On January 1, 1950, he was confirmed as D.S.P. In the mean time an agreement had been arrived at between <ORG> and some State Governments, including Orissa, regarding the constitution of <ORG>. This agreement is printed as annexure to the Indian Police Cadre Rules, 1950. This agreement provided for various matters such as the strength, including both the number and' character of posts of <ORG>, the method of recruitment to the Service, framing of rules regarding conditions of service, the penalties which could be imposed, etc. We are concerned, in particular, with para 2(e) and para 7 which are as under "2 (e) The rules regulating the promotion of Provincial Police Service Officers to <ORG> shall be framed by the Provincial Government concerned in consultation with <ORG> and shall provide that no Provincial Police Service Officer shall be appointed to hold a superior post included in the Schedule for a period of more than one year unless <ORG> have certified that the officer is in every way fit to hold a superior post in <ORG>.

7. In order to ensure that the conditions of service applicable to officers of <ORG> are as uniform as possible, rules regulating pay and other conditions of services will be framed by <ORG> to such extent as may be considered necessary. Provincial <ORG>s will, however, be consulted before the rules are framed, and before they are amended in any manner. In respect of matters not covered by the said rules, an officer of <ORG> will be governed by such rules as may be framed by the, <ORG> under which he is for the time being serving and, if no such rules are framed, by the rules applicable to the Central Service/Provincial Police Service Class 1, as the case may be." The <ORG>s Act , 1951, came into force on October 29, 1951. Section 3 enabled <ORG> to make rules for the regulation of recruitment and conditions of service, of persons appointed to an <ORG> which was defined to include, among others, <ORG>. Section 4 provided :

"All rules in force immediately before the commencement of this Act and applicable to <ORG> shall continue to be in force and shall be deemed to be rules made under this Act."

On April 30, 1951, <ORG> wrote to the Secretary, <ORG>, that they proposed 'to hold a meeting of the committee (to be constituted in accordance with rule 2 of the Draft Rules) sometime in June- 1951 with a view to prepare a select list of officers suitable for promotion to <ORG>. The <ORG> was asked -to depute one of its members to preside over the said meeting in accordance with rule 3 of the Draft Rules. On September 6, 1951, the <ORG> approved the recommendation of the above committee which met to prepare the select list for promotion to <ORG>, and agreed to the select list as drawn up by the <ORG>. The petitioner's name appears at No. 5 of Part 11 of the list which is in the following form "1. List of Officers fit for confirmation in promotion post.

11. List of officers fit for trial to promotion posts.

1. <NAME>

5. <NAME>

6. <NAME>".

On May 14, 1952, the petitioner was promoted as Additional Superintendent of Police in the <ORG> cadre. On August 21, 1952, his name again appeared in the list which we may call "fit for trial list". His name also appeared in a similar list on July 12, 1954, One of the questions which has to be decided in this case is whether these lists can come within the expression "select list" used in the second proviso in r. 3 (3) of the Indian Police Service (Regulation of Seniority) Rules, 1954, hereinafter referred to as the Seniority Rules, which came into force on September 8, 1954.

On November 10, 1955, the first meeting of <ORG> set up in accordance with Regulation 3 of the Indian Police Service (Appointment by Promotion) Regulation, 1955, hereinafter referred to as the Promotion Regulations, was held at Cuttack. In this meeting the <ORG> selected and recommended officers for officiating appointment in the <ORG> and the petitioner's name appeared as No. 2 in the List.

On February 10, 1956, <ORG> approved the recommendations of the above selection com- mittee. On December 1, 1956, <ORG> wrote to <ORG> requesting for its advice as to whether the list prepared by <ORG> could be treated as "Select List" as recommended by the State Government. On January 10, 1957, the <ORG> replied as follows "I am directed to refer to <NAME>

<NAME>'s letter No. 5/l/56-AIS(I), dated the 10th Dec. 1956 and to say that <ORG> which met at Cuttack on the 10th Nov. 1955 did not recommend any officer for appointment to <ORG>. The Committee only recommended officers who were considered suitable to hold <ORG> cadre posts in an officiating capacity. Lists of such officers are made to avoid frequent references to the <ORG> in making interim arrangements in cadre posts till cadre officers become available and these lists cannot be considered as Select Lists. I am to suggest that the State <ORG>. may be advised to place the cases of all these officers before <ORG> when- it meets again in Orissa sometime in the, month of Feb. 1957, for preparation of the Select List."

On February 15, 1957, <ORG> met. and placed the petitioner, including some others, in the "Select List" for substantive appointment to <ORG>. The Committee also recommended some persons for holding cadre posts in an officiating capacity. Reiterating the view that it had already expressed on Janu- ary 23, 1957, on March 27, 1957, the <ORG> wrote to <ORG> stating :

"(i) that the 'fit for trial' list is intended merely in order to avoid specific references to the <ORG> for casual appointments to senior <ORG>/Indian Police Service Posts.

(ii) that the <ORG> have advised in para 2 of their letter No. F.950/55-R.III, dated the 25th Sept. 1956, that the 'fit for trial' list being not a list envisaged under the Indian Administrative Service/ Indian Police Service (Appointment by Promotion) Regulations, any officiation of an officer included in the 'fit for trial' list cannot be taken as approved officiation for purposes of seniority and......

On May 7, 1957, <ORG> wrote to the State Governments and observed :

"The question whether the officiation in senior posts of the State Civil Service/State Police Officer after in-

clusion of their names in the 'fit for trial list' should or should not be taken into account for the purpose of seniority, on their subsequent appointment to <ORG>, <ORG>, has been engaging the attention of <ORG> for some time past. As <ORG>s are aware, the Indian Administrative/Police Service (Appointment by Promotion) Regulations do not provide for the preparation of any such fit for trial list. Such a list has been devised merely to enable <ORG> to try out a few officers irrespective of their seniority with a view to test their suitability for senior posts and is intended only to avoid specific reference to <ORG> for casual short term appointments of the State Civil Service/State Police Service officers to senior <ORG>/<ORG> posts. <ORG>, who were consulted in this respect, have advised that any officiation of State Civil Service/State Police Service officers included in the fit for trial list should not be taken into account to determine their seniority in <ORG>/<ORG>." <ORG> further stated : "The Government of India have accordingly decided that wherever such lists have been, prepared in some States, the officiation in the senior posts of the State Civil Service/State Police Service officers included in the 'fit for trial' list cannot be. counted for the purpose of determining the seniority of such officers, under <ORG>/<ORG> (Regulation of Seniority) Rules, 1954.

On July 10, 1957, the petitioner was appointed to <ORG>. On July 22, 1958, <ORG> wrote to <ORG> regarding the seniority of the petitioner. It stated "The approved continuous officiation of these officers counting for seniority commenced from the 10th February, 1956-the date on which <ORG> approved the 'fit for continuous officiation list containing their names. This date being later than the date i.e. 7-9-55 on which <NAME> (1951 R.R.) started officiating in the senior posts but earlier than the date on which regular recruits of 1952 started officiating it has been decided that these officers may be finally allotted to 1951 and placed L13SupCI69-3 en-bloc below <NAME> (1951-R.R.) and above <NAME> (1952-R.R.)."

It is this order which has been quashed by <ORG>. The learned Attorney General, who appears for the appellant, urges that the case of the petitioner is covered by the second proviso to r. 3 (3) of the Seniority Rules and is not governed only by r. 3 (3) (b). He urges that the lists of 1951, 1952 and 1954, mentioned above, were not Select Lists within the meaning of the second proviso, and it is only the Select List which was made on February 15, 1957, which is the Select List within the second, proviso, and that there has been no discrimination or breach of art. 14 , as held by <ORG>.

The learned counsel for the petitioner on the other hand contends that the second proviso does not govern r. 3 (3)

(b) but in fact governs the first proviso only. He says that the Select List of 1951 was a Select List within the meaning of the second proviso and the seniority of the petitioner should be counted from that date' In the alternative he contends that the petitioner's officiation in senior posts prior to July 10, 1957, had in fact been approved and was approved officiation within the second proviso. He further contends that the date, February 10, 1956, mentioned in the order dated July 22, 1958, is an arbitrary date and the Government has, in fact, not applied its mind to the question. He further says that there has been discrimination and one <ORG> has been given benefit which has been denied to the petitioner. The main point that arises in this case is whether the Select Lists of 1951, 1952 and 1954 can be deemed to be treated as Select Lists within the second proviso. It is necessary to set out rule 3 of the Seniority Rules in order to deal with this point.

Rule 3 reads thus :

"3. Assignment of Year of Allotment-(1) Every officer shall be assigned a year of allotment in accordance with the provisions hereinafter contained in this rule.

(2) The year of allotment of an officer in service, at the commencement of these rules shall be the same as has been assigned to him or may be assigned to him by <ORG> in accordance with the orders and instructions in force immediately before the commencement of these rules:

Provided that where the year of allotment of an officer appointed in accordance with rule 9 of the Re-

cruitment Rules has not been determined prior to the commencement of these Rules, his year of allotment shall be determined in accordance with the provision in clause (b) of sub-rule (3) of this rule and for this purpose such officer shall be deemed to have officiated in a senior post only if and for the period for which he was approved for such officiation by <ORG> in consultation with the <ORG>.

(3) The year of allotment of an officer appointed to the Service after the commencement of these rules, shall be-

(a) where the officer is appointed to the Service on the results of a competitive examination, the year following the year in which such examination was held;

(b) where the officer is appointed to the Service by promotion in accordance with rule 9 of the Recruitment Rules, the year of allotment of the junior-most among the officers recruited to the Service in accord- ance with rule 7 of those Rules who officiated continuously in a senior post from a date earlier than the date of commencement of such officiation by the former;

Provided that the year of allotment of an officer appointed to the Service in accordance with rule 9 of the Recruitment Rules who started officiating continuously in a senior post from a date earlier than the date on which any of the officers recruited to the Service, in accordance with rule 7 of those Rules, so started officiating shall be determined ad hoc by <ORG> in consultation with <ORG> con- cerned;

Provided further that an officer appointed to the Service after the commencement of these Rules in accordance with rule 9 of the Recruitment Rules shall be deemed to have officiated continuously in a senior post prior to the date of the inclusion of his name in the Select List prepared in accordance with the recruitment. of the Indian Police Service (Appointment by Promotion) Regulations framed under rule 9 of the Recruitment Rules, if the period of such officiation prior to that date is approved by <ORG> in consultation with the Commission. Explanation 1-An officer shall be deemed to have officiated continuously in a senior post from a certain date if during the period from that date to the date of his confirmation in the senior grade he continues to hold without any break or reversion a senior post otherwise than as a purely temporary or local arrangement.

Explanation 2.-An officer shall be treated as having officiated in a senior post during any period in respect of which <ORG> concerned certifies that he would have so officiated but for his absence on leave or appointment to any special post or any other exceptional circumstance."

It seems to us that the 1951, 1952 and 1954 lists cannot be deemed to be Select Lists within the second proviso because, as a matter of fact, <ORG> did not select names for the purpose of substantive appointment but only selected names for the purpose of officiation in the senior posts of <ORG>. Regulation 5(1) of the Promotion Regulations inter alia provided :

"5. Preparation of a list of suitable officers.-(1) The committee shall prepare a list of such members of <ORG> as satisfy the condition specified in regulation 4 and as are held by the committee to be suitable for promotion to the Service. . . . "

Now this clearly means that the <ORG> should think of substantive appointments in the service and not officiating appointments.

Similarly, the draft rule 2, which was being acted upon before the Promotion Regulations came into force, provided :

"A committee shall be constituted by <ORG> composed.... (for <ORG>) of the Chief Secretary, the Inspector General of Police and Deputy Inspectors General of Police. This Committee shall prepare a select list of <ORG>.... Police Service Officers who are considered suitable for promotion. The list will be renewed and revised annually." .

Draft rule 3 provided that "<ORG> should invite <ORG> to depute one of their members to preside at the meetings of the <ORG>." Draft rule 4 provided that "in preparing this list, the <ORG> shall be guided by the suitability of the officers for appointment to <ORG>. No officer shall be included in the list who has not definitely proved his fitness for such appointment. . . . It seems to us that <ORG> and <ORG> were quite right in deciding that the 'fit for trial' lists could not be deemed to be select lists made within the draft rules or the Promotion Regulations. In view of this conclusion it is not necessary to decide the question, which was raised by the learned Attorney General, that in any event the second proviso is only dealing with select lists made after the Promotion Regulations came into force and not with select lists made under the so-called draft rules. We are assuming, without deciding, that if a proper select list had been made under the draft rules it would be a select list within the meaning of the second proviso.

This takes us to the next point whether the petitioner is governed by the main portion of rule 3 (3) (b) and not by the second proviso. In our opinion, the object of the second proviso is to cut down the period of officiation which would be taken into consideration under rule 3 (3)

(b). It is common ground that the case of the petitioner is not covered by the first proviso. We are unable to agree with the learned counsel for the petitioner that the only object of the second proviso is to Emit the operation of the first proviso.

Explanation I really explains the expression "officiated continuously" occurring in rule 3 (3) (b). But it does not mean that where Explanation I applies the second proviso does not apply. The object of Explanation I is to deal with the problem arising in the case of officers holding appointments as a purely temporary or local arrangement. If the second proviso applies, as we hold it does, it was for <ORG> to approve, or not to approve, the period of officiation prior to the date of inclusion of the petitioner in the Select List. As observed by this Court in <CITATION> (1) "the first period (i.e. period before the date of inclusion of an officer in the Select List) can only be counted if such period is approved by <ORG> in consultation. with the <ORG>." They have approved the period from February 10, 1956 to July 10, 1957. No material has been brought to our notice to show that <ORG> did not apply its mind to the problem.

The learned counsel for the petitioner contends that in the letter dated July 22, 1958, a list called the "fit for continuous officiation list" is mentioned which is said to have been approved by <ORG>. The learned counsel rightly points out that no such list exists. Apparently this is an expression coined by the draftsman to express the views of <ORG> which clearly stated in the letter dated February 10, 1956, that they approved the recommendation of (1) [1967] 2 S.C.R. 325, 329.

<ORG> which met at Cuttack for the selection of police officers for promotion to <ORG> in an officiating capacity. There is no doubt from the correspondence we have set out above that <ORG> were quite aware of the requirements of a <ORG> list.

We are unable to agree with the learned counsel that Febru- ary 10, 1956, is an arbitrary date. It has definite relation to the question of approved period of officiation because it is on this date that <ORG> approved the inclusion of the petitioner in the list for officiating appointment for the first time after the Promotion Regulations had come into force. The next point which we may now consider is whether the officiation period prior to February 10, 1956, was, as a matter of fact, approved by <ORG>. The learned counsel has taken us through the correspondence. He has been able to point out some letters written by <ORG> on the point but no letter from <ORG> has been shown which could possibly be read as approving his period of officiation prior to February 10, 1956. At any rate the approval of <ORG> has to be accorded after the appointment to <ORG> and not before.

The only point that remains now is the question of discrimi- nation. <NAME> was an officer who wag appointed on June 1, 1955, after the Seniority Rules had come into force and he seems to be, governed by the first proviso. We have not been able to appreciate how this case has any relationship to the case of the petitioner.

The learned Attorney General had raised the point that all the officers who were likely to be affected by the decision of the writ petition had not been impleaded as parties to the petition, and he referred to us the decision of this <ORG> in <NAME> v. Union of India(1), where <NAME>, J., speaking for the <ORG> observed :

"But we are unable to investigate the question whether there has been infringement of the rules governing fixation of seniority, for a majority of those who were placed above the appellant in the seniority list are not impleaded in the petition before the Judicial Commissioner and are not before this Court.

It is impossible to pass an order, assuming that the appellant is able to convince us that a breach of the rules was committed, altering the list of seniority, unless those who are (1) Civil Appeal No. 405 of 1967; Judgment dated August 14,  likely to be affected thereby are before the <ORG> and have an opportunity of replying to the case set up by the appellant."

This is a salutary rule and should be observed. But the learned counsel for the petitioner says that he wag concerned with his year of allotment and in that question no body else was interested directly. Each officer has to have a year of allotment and no other officer is directly interested in it. But as we are allowing the appeal it is not necessary to finally decide whether the petition should have been dismissed only on this ground. In the result the appeal is allowed, the judgment and order of <ORG> set aside and the petition dismissed, but there will be no order as to costs here and in <ORG>.

V.P.S. Appeal allowed.