[REPORTABLE] IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL No. 7451 of 2021 The Rajasthan Marudhara Gramin Bank …Appellant (s) (RMGB) & Anr. Versus Ramesh Chandra Meena & Anr. …Respondent (s) JUDGMENT M. R. Shah, J. 1.0. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 07.07.2021 passed by the High Court of Judicature for Rajasthan at Jodhpur in D.B. Special Appeal Writ No.311 of 2021, by which, Signature Not Verified Digitally signed by R Natarajan the Division Bench of the High Court has dismissed Date: 2022.01.04 16:52:34 IST Reason: the said Appeal and has confirmed the judgment and order dated 28.01.2021 passed by the learned Single Judge, by which, the learned Single Judge allowed the writ petition preferred by the respondent herein (hereinafter referred to as the “original writ petitioner”) and directed the appellant Bank to allow the original writ petitioner to be represented by a retired employee of the Bank in the departmental inquiry, the Appellant Bank has preferred the present appeal. 2.0. The facts leading to the present appeal in nutshell are as under: 2.1. That the respondent herein – original writ petitioner was working as Cashier – cum Clerk (office Assistant). While working as a Branch Manager is alleged to had committed certain irregularities amounting to misconduct. A show cause notice was issued by the Bank dated 24.4.2019 whereby it was stated that while working at Rawastar Branch, he had committed irregularities while granting loans to farmers / villagers under the loan scheme and he did not take adequate precautions and without written mandates of borrowers, he transferred the loan amount in favour of another person and had thus committed misconduct. One another similar show cause notice was issued on dated 24.6.2019. Departmental Inquiry was initiated against him. A chargesheet dated 1.11.2019 was served upon the original writ petitioner by the Bank in terms of Rajasthan Marudhara Gramin Bank (Officers and Employees) Service Regulation, 2010 (hereinafter referred to as the “Regulation, 2010”). A written reply was submitted by the original writ petitioner to the chargesheet issued. He denied the charges leveled against him. Not satisfied with the reply, the Bank initiated departmental inquiry. One Shri K.C. Gupta was appointed as an Enquirer Officer. An opportunity was afforded to the original writ petitioner to take assistance of a defence representative (hereinafter referred to as “DR”) in accordance with Regulation, 2010 as also in accordance with guidelines issued by the Bank. However, the original writ petitioner informed the Enquiry Officer that he may be allowed to defend himself in the inquiry through a legal practitioner. Keeping in view the restrictions under Regulation 44 of the Regulation, 2010 on engagement of legal practitioner during the inquiry, vide communication dated 17.3.2020, his request permitting him to defend himself through a legal practitioner came to be declined by the Enquiry Officer. A request was made to the Disciplinary Authority by the original writ petitioner permitting him to engage a legal practitioner as his DR. Having considered that no complicated legal question has been involved in the matter and the Presenting Officer appointed by the Disciplinary Authority is neither Law Officer nor a legal practitioner and keeping in mind the Regulation 44 of Regulation, 2010 on engagement of legal practitioner during the inquiry, the request to permit him to represent through legal practitioner came to be declined by the Disciplinary Authority, which was communicated to him vide communication dated 27.5.2020. Again a request was made by the original writ petitioner to permit him to engage a legal practitioner as his DR in the inquiry proceedings, which again came to be rejected. During the inquiry proceedings on 11.08.2020, the original writ petitioner submitted a consent letter of one Shri Mahesh Kumar Atal to be engaged as his DR. The said request was turned down. Again a request was made to permit him to engage any legal practitioner or any retired officer from the Bank as his DR, which again came to be turned down by the Disciplinary Authority. Aggrieved by the order passed by the Disciplinary Authority dated 19.08.2020, the original writ petitioner approached the High Court by way of SB Civil Writ Petition No.8363 of 2020 inter alia, praying that he may be permitted to engage any legal practitioner or retired officer of the Bank as his DR. The said writ petition was opposed by the Bank. Regulation 44 of Regulation, 2010 and the Circular dated 31.01.2014 as also the guidelines issued by the Bank in respect of disciplinary proceeding that no outsider, not associated with the Bank can be permitted to act as a DR were pressed into service. That by judgment and order dated 28.1.2021, the learned Single Judge allowed the said writ petition and directed the Bank to permit the original writ petitioner to be represented through retired officer of the Bank in the disciplinary proceedings. Feeling aggrieved and dissatisfied with the judgment and order passed by the learned Single Judge, the Bank preferred appeal before the Division Bench of the High Court. By impugned judgment and order, the Division Bench of the High Court has dismissed the said appeal mainly on the ground that since circular dated 31.1.2014 and the Regulation 8.2 did not prohibit the utilization of the services of ex employee of the Bank, therefore, judgment and order passed by the learned Single Judge is not to be interfered with. 2.2. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court directing the Bank to permit the original petitioner to be represented through retired officer of the Bank in the disciplinary proceedings, the Bank has preferred present appeal. 3.0. Shri Rishabh Sancheti, learned counsel appearing for the appellant has vehemently submitted that in the facts and circumstances of the case, the High Court has committed a grave error in directing the appellant Bank to permit the respondent original writ petitioner to be represented through retired officer of the Bank in the disciplinary proceedings. 3.1. It is submitted that the High Court has not at all adverted to Regulation 8.2 of the Handbook of Vigilance Administration & Disciplinary Action (hereinafter referred to as the “Handbook Procedure”) which has been duly approved by the Board of the Bank and applicable to all kind of matters. 3.2. It is vehemently submitted that Regulation 8.2 of the Handbook Procedure specifically provides that the defence representative should be serving official / employee from the Bank. It is submitted that the provisions of Handbook Procedure are binding on all the employees and applicable to all kind of matters. It is submitted that even there was no challenge to Regulation 8 of the Handbook Procedure by the original writ petitioner. 3.3. It is further submitted that High Court has not properly appreciated the fact that provisions of Regulation, 2010 are to be read with Handbook provisions in a harmonious manner. 3.4. It is further submitted that High Court has erred in construing Regulation 44 as permitting outsiders into a disciplinary inquiry. It is submitted that in fact Regulation 44 restricts legal practitioner to be DR without prior permission. It is submitted that Regulation 44 can in no manner can be construed to mean that it permits all outsiders except lawyers. It is submitted that this is so, since the basic principle is that an employee has no right to representation in the departmental proceedings by another person or a lawyer unless the Service Rules specifically provides for the same. It is submitted that right to representation is available only to the extent specifically provided for in the Rules. Reliance is placed on the decisions of this Court in the case of P. Raghava Kurup & Anr. v. V. Ananthakumari & Anr. reported in (2007) 9 SCC 179; N. Kalindi & Ors. v. Tata Locomotive & Engg. Co. Ltd reported in (1960) 3 SCR 407; National Seeds Corporation Limited vs. K.V. Rama Reddy reported in (2006) 11 SCC 645 and Bharat Petroleum Corporation Limited v. Maharashtra General Kamgar Union & Ors. reported in (1999) 1 SCC 626. 3.5. It is submitted that right to representation in the inquiry can be restricted, controlled or regulated by the Statute, Service Rules, Regulations or Standing Orders and the extent of representation in any enquiry has to be in accordance with the Statute, Service Rules, Regulations or Standing Orders etc. In support of above submission, reliance is placed on the decision of this Court in the case of Cipla Limited & Ors v. Ripu Daman Bahnot & Anr. reported in (1999) 4 SCC 188; in the case of Crescent Dyes & Chemicals Limited v. Ram Naresh Tripathi reported in (1993) 2 SCC 115 and in the case of Indian Overseas Bank vs. Indian Overseas Bank Officer’s Association and Another reported in (2001) 9 SCC 540. 3.6. It is further submitted that as held by this Court in the case of Bharat Petroleum Corporation Limited (supra) there should be minimum intervention of any outsider / legal practitioner in departmental proceedings and the choice, if granted by the Statute, Service Rules, Regulations or Standing Orders, cannot be allowed to travel beyond the Statutes / Service Rules/ Regulations/ Standing Orders. 3.7. It is submitted that in the present case the service conditions of the employee of the bank are governed by Regulation, 2010, which do not contain any provision enabling the Candidate under the enquiry to have any defence representative outside the employees of the Bank. It is submitted that the object and purpose of Regulation 44 was to keep a check on frivolous and unnecessary request made for legal practitioner if the facts and situation do not demand so. It is submitted that Handbook Procedure issued by the Vigilance Department of the Bank which was duly approved by the Board also do not allow the employee to choose any outsider or a legal practitioner as his defence representative and the same is expressly provided under Clause 8 of Chapter VIII of the Handbook Procedure. 3.8. It is submitted that the impugned judgment and order has created an anomalous situation where: I. Exemployees who themselves may have been subject of a disciplinary enquiry/ chargesheeted / dismissed from service are also enabled to act as Defence Representatives. II. Exemployees who were part of Vigilance or Audit Sections who come across a lot of information of confidential nature are enabled to act as Defence Representatives, which would result in grave injustice. III. The solemn nature of proceedings is taken away and would result in issues of orderliness as well as decorum when a disgruntled exemployee is enabled to act as a Defence Representative. CVC Circular no.19.9.2021 dated 6.10.2021 prescribes the time limit for completion of departmental enquiry within 6 months and the same has adopted in the Vigilance Handbook page no.55 para 7.2. If an outsider gets permitted completion of departmental inquiry within prescribed time limit shall be a problem. IV. It is a matter of record that presently in almost all the pending Disciplinary enquiries, most of the Employees under enquiry are now asking for retired officials to act as Drs. 3.9. It is submitted that aforesaid aspect has not at all been considered by the High Court while permitting the respondent employee to allow exemployee as his DR. Making the above submissions, it is prayed to allow the present appeal. 4.0. Learned counsel appearing for the respondent has submitted that Regulation 44 of the Regulation 2020 do not bar engagement of retired employee of the Bank to act as a DR. It is submitted that the only bar under the Rules and the Regulation is with regard to appointment of legal practitioner as a DR without permission of the Bank. It is submitted that therefore, the High Court has rightly directed the Bank to permit the respondent employee to avail service of the retired employee of the Bank as defence representative. 4.1. It is submitted that Handbook of Vigilance Administration and Disciplinary Action dated 15.3.2019 are not binding rules or guidelines and are merely directory in nature. 4.2. It is submitted that on conjoint reading of Clause 7.2 and Clause 8.2 of Handbook Procedure would mean that only officer who is junior to the presenting officer and Enquiry Officer can be appointed as DR. It is submitted that this would result in gross miscarriage of justice and in violation of principles of natural justice. 4.3. It is submitted that judgments cited by the learned counsel for the appellant shall not be applicable to the facts of the present case as every bank has its own Rules and Regulations. It is submitted that in the present case there is no specific bar in the service regulation in engaging retired employee of the Bank as defence representative. It is submitted that therefore, in absence of any specific bar and considering the Regulation 44, the High Court has not committed any error. 4.4. It is submitted that similar question came up for determination before the High Court of Allahabad in the case of Rakesh Singh vs. Chairman and Disciplinary Authority and Another in Writ Appeal No. 64711 of 2013 wherein the High Court has held that in absence of any specific bar in the Regulation, the denial of the right to engage a retired employee of the Bank as defence representative is not justified. It is submitted that said judgment of the Allahabad High Court has been affirmed by this Court and the SLP against the said judgment and order has been dismissed. Making the above submissions and relying upon the above decisions, it is prayed to dismiss the present appeal. 5.0. Heard the learned counsel for the respective parties at length. By the impugned judgment and order, the High Court has permitted the respondent employee who is facing disciplinary proceedings to represent through exemployee of the Bank. While permitting the respondent employee, the High Court while construing Regulation 44 of Regulation, 2010 has observed that the Regulation 44 only restricts representation by a legal practitioner, and even that too is permissible of course with the leave to the competent authority, and there is no complete or absolute bar even on engaging a lawyer, the employee cannot be restrained from availing services of retired employee of a Bank. However, it was the specific case on behalf of the Bank that in view of circular dated 31.01.2014 and clause 8.2 of the Handbook Procedure, the DR should be a serving official / employee from the Bank. Therefore, the short question which is posed for consideration of this Court is whether the respondent employee, as a matter of right is entitled to avail the services of an Ex employee of the Bank as his DR in the departmental proceedings ? 6.0. While considering the aforesaid issue, few decisions of this Court on the right of the employee to make representation in the Departmental Proceedings are required to be referred to. 6.1. In the case of Kalindi and Ors (supra), it is observed and held that ordinarily in inquiries before domestic tribunals the person accused of any misconduct conducts his own case and therefore, it is not possible to accept the argument that natural justice exfacie demands that in the case the enquiries into a chargesheet of misconduct against a workman he should be represented by a member of his Union; though ofcourse an employer in his discretion can and may allow his employee to avail himself of such assistance. The dictum of this decision has been subsequently elucidated. 6.2. In the case of the Dunlop Rubber Co. (India) Ltd v. Workmen reported in (1965) 2 SCR 139, after considering its earlier decision in the case of Kalindri and ors (supra), it is observed and held that there is no per se right to representation in the departmental proceedings through a representative through own union unless the company by its Standing Order recognized such a right. It is observed that refusal to allow representation by any Union unless the Standing Orders confer that right does not vitiate the proceedings. It is further observed that in holding domestic enquiries, reasonable opportunity should be given to the delinquent employees to meet the charge framed against them and it is desirable that at such an enquiry the employee should be given liberty to represent their case by persons of their choice, if there is no standing order against such a course being adopted and if there is nothing otherwise objectionable in the said request. It is further observed that denial of such an opportunity cannot be said to be in violation of principles of natural justice. 6.3. In the case of Cipla Ltd. and Ors (supra), it is observed and held as under: “13. In N. Kalindi v. Tata Locomotive & Engg. Co Ltd, it was held that a workman against whom a departmental enquiry is held by the Management has no right to be represented at such enquiry by an outsider, not even by a representative of his Union though the Management may in its discretion allow the employee to avail of such assistance. So also in Dunlop Rubber Company vs. Workmen, 1965 (2) SCR 139 = AIR 1965 SC 1392 = 1965 (1) LLJ 426, it was laid down that an employee has no right to be represented in the disciplinary proceedings by another person unless the Service Rules specifically provided for the same. A ThreeJudge Bench of this Court inCrescent Dyes and Chemicals Ltd. vs. Ram Naresh Tripathi, (1993) 2 SCC 115 = 1992 Suppl. (3) SCR 559, laid down that the right to be represented in the departmental proceedings initiated against a delinquent employee can be regulated or restricted by the Management or by the Service Rules. It was held that the right to be represented by an advocate in the departmental proceedings can be restricted and regulated by statutes or by the Service Rules including the Standing Orders, applicable to the employee concerned. The whole case law was reviewed by this Court in Bharat Petroleum Corporation Ltd. vs. Maharashtra Genl. Kamgar Union & Ors., (1999) 1 SCC 626, and it was held that a delinquent employee has no right to be represented by an advocate in the departmental proceedings and that if a right to be represented by a coworkman is given to him, the departmental proceedings would not be bad only for the reason that the assistance of an advocate was not provided to him.” 6.4. In the case of Crescent Dyes and Chemicals Ltd. (supra), it is observed and held that in the departmental proceedings right to be represented through counsel or agent can be restricted, controlled or regulated by statute, rules, regulations or Standing Orders. A delinquent has no right to be represented through counsel or agent unless the law specifically confers such a right. The requirement of the rule of natural justice insofar as the delinquent's right of hearing is concerned, cannot and does not extend to a right to be represented through counsel or agent. In the case before this Court, the delinquent's right to representation was regulated by the Standing Orders which permitted a clerk or a workman working with him in the same department to represent him and said right stood expanded permitting representation through an officer, staffmember or a member of the Union, on being authorised by the State Government. Holding that the same is permissible and cannot be said to be in violation of principles of natural justice, it is observed that the object and purpose of such provisions are to ensure that the domestic enquiry is completed with despatch and is not prolonged endlessly; secondly, when the person defending the delinquent is from the department or establishment in which the delinquent is working he would be well conversant with the working of that department and the relevant rules and would, therefore, be able to render satisfactory service to the delinquent. In the present case also clause 8 permits representation through serving officials / employee from the Bank. 6.5. A similar view has been expressed by this Court in the case of Bharat Petroleum Corporation Limited (supra) as well as in the case of National Sees Corporation Limited (supra). 6.6. In the case of Indian Overseas Bank (supra), it is observed and held that law does not concede an absolute right of representation to an employee in domestic enquiries as part of his right to be heard and that there is no right to representation by somebody else unless the rules or regulation and standing orders, specifically recognize such a right and provide for such representation. 7.0. Applying law laid down by this Court in the aforesaid decisions to the facts of the case on hand, the respondent employee / respondent delinquent has no absolute right to avail the services by exemployee of the Bank as his DR in the departmental proceedings. It is true that Regulation 44 puts specific restriction on engagement of a legal practitioner and it provides that for the purpose of an enquiry under Regulation, 2010, the Officer or Employee shall not engage a legal practitioner without prior permission of the competent authority. Therefore, even availing the services of legal practitioner is permissible with the leave of the competent authority. However, Regulation does not specifically provides that an employee can avail the services of any outsider and / or ex employee of the Bank as DR. Therefore, Regulation, 2010 neither restricts nor permits availing the services of any outsider and / or exemployee of the Bank as DR and to that extent Regulation is silent. If the reasoning of the High Court is considered, the High Court is of the opinion that as there is no complete or absolute bar even on engaging a lawyer, it is difficult to accept that a retired employee of the Bank cannot be engaged to represent a delinquent officer in the departmental inquiry. However, the High Court has not appreciated the effect of the Handbook. As per Clause 8 of the Handbook Procedure which has been approved by the Board of Directors and it is applicable to all the employees of the Bank and Clause 8 is with respect to the defence representative, it specifically provides that DR should be serving official / employee from the Bank. The said Handbook Procedure which has been approved by the Board of Directors of the Bank is binding to all the employees of the Bank. The High Court has considered Regulation 44 of the Regulation, 2010, however has not considered clause 8 of the Handbook Procedure on the ground that the same cannot be said to be supplementary. However, we are of the opinion that Handbook Procedure can be said to be supplementary. The same cannot be said to be in conflict with the Regulation 44 of Regulation, 2010. As observed herein above, neither Regulation 44 permits nor restricts engagement of an exemployee of the Bank to be DR. Therefore, Clause 8.2 cannot be said to be in conflict with the provisions of Regulation, 2010. Provisions of Regulation, 2010 and the provisions of Handbook Procedure are required to be read harmoniously, the result can be achieved without any violation of any of the provisions of Regulation, 2010 and the Handbook Procedure. The objects of Regulation 44 of Regulation, 2010 and Clause 8 of the Handbook Procedure seem to be to avoid any outsider including legal representative and / or even exemployee of the Bank. At the cost of repetition, it is observed that there is no absolute right in favour of the delinquent officer’s to be represented in the departmental proceedings through the agent of his choice and the same can be restricted by the employer. 8.0. As per the Bank there is a justification also to permit the delinquent officer to be represented in the departmental proceedings through serving official / employee from the Bank only. The Bank has justified its action of not permitting exemployee of the Bank as DR and according to the Bank, the exemployee who themselves may have been subject of a disciplinary enquiry/ chargesheet / dismissed from service; the exemployee might be a part of vigilance or audit sections who come across a lot of information of confidential nature and therefore, if they are allowed to be DR in the departmental proceedings, which would result in grave injustice; the solemn nature of proceedings is taken away and would result in issues of orderliness as well as decorum when a disgruntled exemployee is enabled to act as defence representative; they may adopt delay tactics in departmental enquiry and may not permit completion of department enquiry within six months as mandated by the CVC Circular and as per Vigilance Handbook adopted by the Bank. For all the aforesaid reasons not permitting the delinquent officer to be represented through exemployee of the Bank in the departmental enquiry cannot be said to be in any way in breach of principles of natural justice and / or it violates any of the rights of the delinquent officer. As per settled proposition of law and as observed herein above, in decisions referred to herein above, the only requirement is that delinquent officer must be given fair opportunity to represent his case and that there is no absolute right in his favour to be represented through the agent of his choice. However, at the same time, if the charge is severe and complex nature, then request to be represented through a counsel can be considered keeping in mind Regulation 44 of Regulation, 2010 and if in a particular case, the same is denied, that can be ground to challenge the ultimate outcome of the departmental enquiry. However, as a matter of right in each and every case, irrespective of whether charges is severe and complex nature or not, the employee as a matter of right cannot pray that he may be permitted to represent through the agent of his choice. 9.0. Now so far as reliance placed upon the decision of the Allahabad High Court in the case of Rakesh Singh (supra) by the learned counsel for the respondent is concerned, it is required to be noted that at the time when the High Court decided the matter no such Clause 8 of the Handbook Procedure was in force. Handbook Procedure has been adopted by the Board of Directors in its meeting held on 15.3.2019. Therefore, the said decision shall not be applicable to the facts of the case on hand. 10. In view of the above and for the reasons stated above, the High Court has committed an error in permitting respondent delinquent officer to be represented in the departmental enquiry through exemployee of the Bank. The view taken by the learned Single Judge confirmed by the Division Bench is unsustainable. Accordingly, present appeal is allowed and the impugned judgment and order passed by the learned Single Judge confirmed by the Division Bench permitting the respondent delinquent officer to be represented in the departmental proceedings through exemployee of the Bank is hereby quashed and set aside. Present appeal is accordingly allowed. In the facts and circumstances of the case, there shall be no order as to costs. …………………………………J. (M. R. SHAH) …………………………………J. (SANJIV KHANNA) New Delhi, January, 04 2022


CA 5970/2021 1 Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION Civil Appeal No 5970 of 2021 (Arising out of SLP (C) No 699 of 2019) Mr Rajeev Nohwar Appellant Versus Chief Controlling Revenue Authority Respondent(s) Maharashtra State, Pune and Others JUDGMENT Dr Dhananjaya Y Chandrachud, J 1 Leave granted. 2 A citizen‟s claim for the refund of stamp duty has found a winding path to this court. The appellant booked a residential apartment. There arose a dispute with the builder. It led to a consumer complaint. The litigation consumed time. The appellant was permitted to opt for a refund of the price. The claim for refund of stamp duty has been rejected by the revenue arm of the state on the ground that more than six months have elapsed. The Bombay High Court, agreeing with Signature Not Verified Digitally signed by Chetan Kumar the decision found the claim to be stale. A simple claim for refund leads us to Date: 2021.10.05 17:04:04 IST Reason: CA 5970/2021 the complexities of a revenue sourcing law. 3 This appeal arises from a judgment dated 22 November 2018 of a Single Judge of the High Court of Judicature at Bombay. The Deputy Inspector General of Registration and Deputy Controller of Stamps, Pune rejected an application for refund of stamp duty filed by the appellant. The order of the authority was challenged in the exercise of the jurisdiction of the High Court under Article 226 of the Constitution. The petition has been dismissed. 4 On 24 April 2014, the appellant booked a residential flat, being Unit No 2001 admeasuring 1660 sq ft in Tower No 24 of a construction project called Lodha Belmondo in Pune for a consideration of Rs 1,68,88,095. The appellant initially paid an amount of Rs 33,91,795 by July 2014 representing 19.9% of the agreed sale consideration, following which a confirmatory email was issued. This was followed by a letter of allotment dated 15 July 2014. On 14 August 2014, the appellant paid an amount of Rs 1,58,28,221 out of the agreed consideration. In order to facilitate the execution of a conveyance, the appellant purchased an e-SBTR stamp paper through a government challan bearing MTR GRN No MH0023603832014155 for a total amount of Rs 8,44,500 from the IDBI bank, Aundh, Pune for the execution of the agreement to sell. 5 Disputes arose between the appellant and the developer which led to the appellant instituting a consumer complaint before the National Consumer Disputes Redressal Commission1. During the pendency of the complaint, an 1 “NCDRC” CA 5970/2021 interim order dated 25 September 2014 restrained the developer from creating third party interests in the flat. Eventually by an order dated 6 May 2016, the complaint was allowed. The appellant was given the option to either execute the agreement with the developer, in which event the developer would pay compensation in the amount of Rs 10 lakhs, or in the alternative, if the appellant was not willing to execute an agreement, the developer was directed to refund the entire consideration together with interest at the rate of 12% per annum from the date of receipt of each installment until the date of refund along with compensation of Rs.10,00,000. The appellant exercised the option of seeking a refund of consideration together with interest. 6 The developer issued a cheque on 11 July 2016 for the refund of the consideration in terms of the order of the NCDRC. The appellant thereupon applied on 16 July 2016 for refund of the stamp duty of Rs 8,44,500 to the Collector of Stamps. By a communication dated 5 August 2016, the Collector of Stamps forwarded the file to the Deputy Inspector General of Registration with a recommendation that the refund should be denied on the ground that the appellant had not applied for refund within six months. By an order dated 27 September 2016, the Deputy Inspector General of Registration rejected the application for refund of stamp duty on the ground that the application for refund was not made within six months as mandated by Section 48(3) of the Maharashtra Stamp Act 1958. The appellant filed an appeal before the Chief Controlling Revenue Authority under Section 53(1A) of the Maharashtra Stamp Act 1958. The appeal was dismissed on 2 April 2018 on the same ground. The CA 5970/2021 appellant moved the High Court of Judicature at Bombay in a writ petition under Article 226 of the Constitution challenging the orders dated 27 September 2016 and 2 April 2018 and for seeking an order directing the refund of the stamp duty paid. 7 The High Court by its judgment dated 22 November 2018 dismissed the petition, affirming the view of the revenue authorities that the application for refund was barred by limitation, not having been preferred within a period of six months from the date of the purchase of the e-stamp. The High Court rejected the argument that the six month limitation period under Section 48(3) would not be applicable since the appellant‟s case falls under Section 52A of the Act. It was observed that Sections 47, 48, 52 and 52A of the Act will have to be interpreted harmoniously, and an application under Section 52A will also have to be made within six months from the date of purchase of the stamps. The matter has accordingly travelled to this Court. Notice was issued on 18 January 2019. 8 Mr Varun Singh, counsel appearing on behalf of the appellant submits that in order to appreciate the circumstances in which the application for refund was filed, it is necessary to bear in mind the following events: (ii) Following the dispute with the developer, the appellant moved the NCDRC which initially granted an interim stay on the creation of third party rights on 25 September 2014 and CA 5970/2021 eventually allowed the complaint on 6 May 2016; and (iii) The application for refund was moved on 16 July 2016. 9 In this backdrop, counsel for the appellant submitted that for the following five reasons, the application for refund was instituted within a reasonable period and cannot be held to be barred either on laches or limitation: (i) The dispute in relation to the agreement with the developer was pending adjudication before the NCDRC; (ii) The appellant had paid the stamp duty and purchased the e- stamp paper bona fide in order to facilitate the completion of the transaction pertaining to the residential flat; (iii) In order to demonstrate the readiness and willingness of the appellant before the NCDRC, it was necessary for the appellant to continue to retain the e-stamp paper pending the disposal of the proceedings; (iv) The e-stamp paper, as a matter of fact, would have been used if the adjudication by the NCDRC had resulted in a resolution of the dispute by removing some of the offending provisions insisted by the developer; and (v) Following the order of the NCDRC, the appellant exercised the CA 5970/2021 option to seek a refund in terms of a judicial order of the competent forum. 10 In this backdrop, counsel has relied on the provisions of Sections 47, 48 and 52A of the Maharashtra Stamp Act 1958. It has been submitted that the provisions of Section 48(3) which prescribe a period of six months from the date of purchase of stamp for filing an application for refund, would have no application where the case is not covered by the provisions of Section 47. In such a situation, it was urged that Section 52A would enure to the benefit of the appellant. In this context, counsel for the appellant relied on a judgment of a two-Judge Bench of this Court in Committee-GFIL vs Libra Buildtech Private Limited and Others.2 11 Opposing the submissions of the appellant, Mr Rahul Chitnis, Chief Standing Counsel for the State of Maharashtra has urged that: (i) The application filed by the appellant was specifically under the provisions of Section 47 of the Maharashtra Stamp Act 1958; (ii) Once the appellant has conceded that the application was filed with reference to Section 47, the period of limitation prescribed in Section 48 would squarely stand attracted; (iii) As a matter of fact, the application for refund of stamp duty would be relatable to the provisions of Section 47(a) of the Act; and 2 (2015) 16 SCC 31 CA 5970/2021 (iv) In these circumstances, the appellate authority was justified in coming to the conclusion that the application for refund was barred by limitation. The rival submissions fall for our analysis. 12 Chapter 5 of the Maharashtra Stamp Act 1958 is titled “allowances for stamps in certain cases”. Section 47 which deals with “allowance for spoiled stamps” provides as follows: “47. Allowance for spoiled stamps.- Subject to such rules as may be made by the State Government as to the evidence to be required, or the inquiry to be made, the Collector may on application, made within the period prescribed in section 48, and if he is satisfied as to the facts, make allowance for impressed stamps spoiled in the cases hereinafter mentioned, namely: (a) the stamp on any paper inadvertently and undesignedly spoiled, obliterated or by error in writing or any other means rendered unfit for the purpose intended before any instrument written thereon is executed by any person; (b) the stamp on any document which is written out wholly or in part, but which is not signed or executed by any party thereto; (c) the stamp used for an instrument executed by any party thereto which- (1) has been afterwards found by the party to be absolutely void in law from the beginning; (1A) has been afterwards found by the Court, to be absolutely void from the beginning under section 31 of the Specific Relief Act, 1963; (2) has been afterwards found unfit by reason of any error or CA 5970/2021 mistake therein, for the purpose originally intended; (3) by reason of the death of any person by whom it is necessary that it should be executed, without having executed the same, or of the refusal of any such person to execute the same, cannot be completed so as to effect the intended transaction in the form proposed; (4) for want of the execution thereof by some material party, and his inability or refusal to sign the same, is in fact incomplete and insufficient for the purpose for which it was intended; (5) by reason of the refusal of any person to act under the same, or to advance any money intended to be thereby secured, or by the refusal or non-acceptance of any office thereby granted, totally fails of the intended purpose; (6) becomes useless in consequence of the transaction intended to be thereby effected by some other instrument between the same parties and bearing a stamp of not less value; (7) is deficient in value and the transaction intended to be thereby effected had been effected by some other instrument between the same parties and bearing a stamp of not less value; (8) is inadvertently and undesignedly spoiled, and in lieu whereof another instrument made between the same parties and for the same purpose is executed and duly stamped: Provided that, in the case of an executed instrument, except that falling under sub-clause (lA), no legal proceeding has been commenced in which the instrument could or would have been given or offered in evidence and that the instrument is given up to be cancelled, or has been already given up to the Court to be cancelled. Explanation.- The certificate of the Collector under section 32 that the full duty with which an instrument is chargeable has been paid is an impressed stamp within the meaning of this section.” (emphasis supplied) CA 5970/2021 13 Section 47 is subject to the rules which are made by the State government in regard to the evidence to be required or enquiry to be made. The provision stipulates that the Collector may make allowance, on an application seeking an allowance, for impressed stamps spoiled in the cases which are set out in clauses (a) to (c). The opening words of Section 47 also indicate that the application under Section 47 has to be made within the period which is prescribed by Section 48. The prefatory words of Section 47 advert to “impressed stamps spoiled in the cases” which are contained in clauses (a) to (c). Clause (a) deals with a situation where the stamp on any paper is inadvertently or undesignedly spoiled, obliterated or rendered unfit for the purpose intended either by an error in writing or by any other means before the instrument written on it is executed by any person. The object of clause (a) is to ensure that an allowance is made for impressed stamps which are spoiled inadvertently or unintentionally or where the stamp paper is rendered unfit for the purpose for which it was intended. That is why the expressions which have been used in clause (a) are spoiled, obliterated, or rendered unfit for the purpose. 14 Section 47 covers three classes of cases within it: (i) spoiled; (ii) obliterated; and (iii) unfit for the purpose by an error in writing or „any other means‟. It is contended by the State that the case of the appellant would fall within the purview of the third category since it was rendered unfit for the purpose, i.e., the purpose of purchase of the property. This submission thus places reliance on the expression ‘purpose’ used in the provision. The submission does not accord with a plain reading of the provision. The expression “any other means” must be read CA 5970/2021 in the context of the words which immediately precede it, namely, “error in writing”. The expression “by any other means” would indicate that the legislature intended to refer to defacement of a stamp paper in any manner analogous to an error in writing the instrument on the stamp paper. “Any other means” refers to any other modality by which the stamp paper is rendered unfit for the purpose for which it was purchased. Moreover, the prefatory words in Section 47 state that the collector must be satisfied that the stamp is „spoiled‟. Clauses (a) to (c) lay down the cases that are covered within the ambit of the expression „spoiled stamps‟. The emphasis of Section 47 is not on the purpose but on unfit stamps. Therefore, a case where the stamp has not been utilized at all because it is not needed subsequent to the purchase will not fall within the purview of Section 47. Only those cases where the stamp is unfit for the purpose by an error in writing or any other means would be covered by the provision. It is not the case of the appellant that the stamp paper has been spoiled or obliterated or rendered unfit for the purpose for which it was required. In the present case, it is common ground that the stamp paper is not spoiled but the purpose for which the stamp was purchased has become redundant in view of the judgment of the NCDRC. Therefore, there would be no occasion to apply the provisions of clause (a) of Section 47. 15 Clause (c) of Section 47 begins with the expression “stamp used for an instrument executed by any party thereto” and is followed by eight sub clauses. In other words, clause (c) of Section 47 applies only where a stamp paper has been used for an instrument which has been executed by one of the parties to CA 5970/2021 the instrument. That is why, for instance sub clause (2) refers to the instrument being subsequently found unfit either by reason of an error or mistake for the purpose for which it was originally intended. Sub clause (4) adverts to a situation where the instrument has not been executed by a material party and by his inability or refusal to sign it renders the instrument incomplete and insufficient for the purpose for which it was intended. Clause (c) of Section 47 has no application to the facts of the present case since it is common ground that the stamp was not used for an instrument already executed by any party thereto. 16 Now it is in this backdrop that it becomes necessary to advert to Section 48 of the Act. Section 48 provides as follows: “48. Application for relief under section 47 when to be made. - The application for relief under section 47 shall be made within the following period, that is to say.- (1) in the cases mentioned in clause (c) (5), within six months of the date of the instruments: Provided that where an Agreement to sell immovable property, on which stamp duty is paid under Article 25 of the Schedule I, is presented for registration under the provisions of the Registration Act, 1908 and if the seller refuses to deliver possession of the immovable property which is the subject matter of such agreement the application may be made within two years of the date of the instrument [or where such agreement is cancelled by a registered cancellation deed on the grounds of, dispute regarding the premises concerned, inadequate finance, financial dispute in terms of agreed consideration, or afterwards found to be illegal construction or suppression of any other material fact, the application may be made within two years from the date of such registered cancellation deed; (2) in the case when for unavoidable circumstances any instrument for which another instrument has been substituted cannot be given up to be cancelled, the application may be CA 5970/2021 made within six months after the date of execution of the substituted instrument. (3) in any other case, within six months from the date of purchase of stamp.” 17 Section 48 begins with the statement that the application for relief under Section 47 shall be made within the periods which are indicated in clauses (1), (2) and (3). In other words, the periods of limitation which are prescribed in clauses (1), (2) and (3) are in respect of those cases which are governed by Section 47. Clause (1) stipulates that for cases governed by clause (c)(5), the period within which the application has to be filed will be six months of the date of the instrument. Clause (2) specifies that in case where for unavoidable circumstances, any instrument for which another instrument has been substituted cannot be given up to be cancelled, in such an event, the application may be made within six months after the date of execution of the substituting instrument. Clause (3) which is a residuary provision provides for a limitation of six months from the date of the purchase of stamp. 18 The revenue authorities rejected the application filed by the appellant on the ground that the application was not filed within six months from the date of the purchase of the stamp paper, treating the case to fall within the residuary provision in Section 48 of the Act. This view has been accepted by the Single Judge of the Bombay High Court. What this view misses is that Section 48 in its entirety applies only to those cases where the application for relief is governed CA 5970/2021 by Section 47. If the application for refund is not with reference to the provisions of Section 47, the period of limitation in Section 48 clearly has no application. Since the application of the appellant does not fall within the purview of any of the clauses in Section 47, the 6 month limitation period prescribed in Section 48 would not be applicable to the application for allowance filed by the appellant. 19 Having observed that the application of the appellant for allowance is not covered by the Section 47, it is imperative to determine if it falls within the purview of any other provisions of the Act. Section 49 provides that allowance can be made without any limit of time for stamp papers that are used as printed forms of instruments by any banker or company, if the forms are not required by the banks or the companies. Thus, the application of the appellant is not covered by section 49. Section 50 states that allowance for misused stamps can be made. The provision brings within the purview of the term „misused stamps‟, the stamps of greater value than required or stamps of description other than that prescribed by any rules or stamps that are useless since the instrument is written in contravention of the provisions or where a stamp has been used when the instrument is not charged with stamp duty. Section 50 only covers those cases where inadvertent mistakes are made in the stamp paper. Therefore, the case of the appellant is not covered by Section 50 since there is no mistake in the e-stamp, be it with regard to the value or description. Section 51 lays down the procedure for seeking allowance for cases that fall under Section 47, 49 and 50 and is thus of no application to the appellant‟s claim. 20 Now it is important to refer to Section 52 of the Act which provides as follows: CA 5970/2021 “52. Allowance for stamps not required for use: When any person is possessed of a stamp or stamps which have not been, spoiled or rendered unfit or useless for the purpose intended, but for which he has no immediate use, the Collector shall repay to such person the value of such stamp or stamps in money, deducting [thereform such amount as may be prescribed by rules made in this behalf by the State Government] upon such person delivering up the same to be cancelled, and proving to the Collector's satisfaction,— (a) that such stamp or stamps were purchased by such person with a bona fide intention to use them ; and (b) that he has paid the full price thereof ; and (c) that they were so purchased within the period of 1[six months] next preceding the date on which they were so delivered : Provided that, where the person is a licensed vendor of stamp, the Collector may, if he thinks fit, make the repayment of the sum actually paid by the vendor without any such deduction as aforesaid.” (emphasis supplied) Section 52 deals with provision of allowance in case of stamps that are not required for use. There are two kinds of stamps that are not required for use. The first is where the stamp is spoiled, as covered by Section 47 of the Act. The second is where the stamp is not spoiled but the stamp is not needed since the purchaser has no use of it. Section 52 specifically excludes the first of category since it is already covered by Section 47. The provision only applies to the class in the second category. Thus, Section 52 covers stamps that are not spoiled but which are of no use to the applicant by the occurrence of any subsequent event that renders the purpose of purchase of stamp void or nugatory. For the application of Section 52A, the applicant must have purchased the stamp on the payment of full price, with a bona fide intention to use it. However, within six months from the purchase of the stamp, the purpose of the purchase has not CA 5970/2021 been fulfilled. Such a situation can arise in multiple circumstances. For example, a person may have obtained a stamp paper for purchasing a building. However, before the agreement of sale could be executed, the building turns to shambles after an earthquake hits the area. In such a case, the stamp paper has no use. This may also cover a case where the seller has taken back his consent to sell the property after the purchase of the stamp paper. In such cases, the stamp purchased will not have any use since the purpose for which it was purchased could not materialize. 21 It could be argued that the use of the words, “for which he has no immediate use” in Section 52 would only covers cases where the purpose for the purchase of the stamp is still valid but the execution of the purpose if delayed and not „immediate‟. Such an interpretation, however, is erroneous in view of the holistic reading of the provision. The use of the phrase „immediate‟ must be read in the context of the limitation period prescribed by the provision. Since a six month limitation period has been imposed in Section 52 for the cases that fall within its purview, the use of the phrase „no immediate use‟ should be interpreted to mean either the permanent abandonment of the purpose or a delay (of more than six months from the purchase of the stamp) in the execution of the purpose. 22 However, Section 52 would only apply to those cases where the applicant had knowledge that the stamp purchased was not be required for use within six months from the date of purchase. The provision cannot be arbitrarily applied to cases where the purchaser of the stamp had no knowledge that the stamp CA 5970/2021 would not be required for use within six months from the purchase of the stamp. In the instant case, the appellant had no knowledge of the fact that the stamp was not needed within six months from the purchase of it. He was in a bona fide contest over his rights with the builder. Therefore, the case of the appellant would not fall under Section 52 of the Act as well. 23 It has been contended by the counsel for the appellant that the case of the appellant falls within the purview of Section 52A of the Act. Now, it becomes necessary to advert to the provisions of Section 52A which provides as follows: “52A. Allowance for duty.- (1) Notwithstanding anything contained in sections 47, 50, 51 and 52, when payment of duty is made by stamps or in cash as provided for under sub-section (3) of section 10 or section 10A or section 108, and when the amount of duty paid exceeds rupees one lakh, the concerned Collector shall not make allowance for the stamps, or the cash amount paid under the Challans, which are spoilt or misused or not required for use, but shall, after making necessary enquiries, forward the application with his remarks thereon to,- (a) the Additional Controller of stamps for the cases handled by the Collectors working in the Mumbai City District and Mumbai Suburban District; and (b) the concerned Deputy Inspector General of Registration and Deputy Controller of Stamps of the division for the cases handled by the Collectors other than those mentioned in clause (a). (2) The Additional Controller of Stamps or, the concerned Deputy Inspector General of Registration and Deputy Controller of Stamps of the division, as the case, may, be, on receiving such application consider the same and decide whether such allowance shall be given or not, and accordingly shall, grant the same, if the amount of allowance does not exceed rupees ten lakh, and if, it exceeds rupees ten lakh, shall submit such application, with his remarks thereon to the Chief Controlling Revenue Authority for decision. CA 5970/2021 (3) The Chief Controlling Revenue Authority on receiving such application shall decide on merit whether such allowance shall be given or not, and pass such order thereon as he thinks just and proper, which shall be final and shall not be questioned in any court or before any authority.” 24 Section 52A is prefaced with a non obstante clause which operates notwithstanding anything contained in Sections 47, 50, 51 and 52. Section 52A stipulates that when the amount of stamp duty paid exceeds Rs 5 lakhs, the concerned Collector shall not make an allowance for the stamps or the cash amount paid under the challans but shall after making necessary enquiries forward the application with his remarks to the Additional Collector of Stamps (for cases handled by the Collectors working in the Mumbai City District and Mumbai Sub-Urban Districts) and the concerned Deputy Inspector General of Registration and Deputy Controlling of Stamps for cases in other regions. 25 In view of Section 52A(2) of the Act, the Additional Collector of Stamps or the DIG as the case may be, on assessing the application has to decide whether allowance should be given or not and shall grant it if the amount of allowance does not exceed Rs 20 lakhs. If the amount exceeds Rs 20 lakhs, the application has to be submitted to the Chief Controlling Revenue Authority. The Chief Controlling Revenue Authority on receiving the application is required to decide on merits whether or not the allowance should be given. The provisions of Section 52A were substituted with effect from 1 May 2006 by Maharashtra Act 12 of 2006. By an Amendment, the amount of Rs 5 lakhs which has been specified in sub-Section (1) was enhanced from Rs 1 lakh by Maharashtra Act 20 CA 5970/2021 of 2015 with effect from 24 April 2015. Likewise in sub-Section (2), the amount of Rs 20 lakhs stands enhanced from the earlier amount of Rs 10 lakhs by the same amending provision. 26 The provisions of Section 52A as noticed above have overriding force and effect, inter alia, on the provisions of Sections 47, 50, 51 and 52. It is pertinent to note that the non obstante clause does not apply to Sections 48 and 49 of the Act. While Section 48 is a limitation clause applicable to cases that are covered by Section 47, Section 49 applies to a Corporation where no limitation period has been prescribed. Section 52A can be applied to the appellant‟s case only if the provision is interpreted to override the limitation period laid down in the preceding provisions and if it is regarded as a residual substantive provision that would cover all cases that are not covered by any of the provisions. We will now consider the validity of such an interpretation. 27 If Section 52A was enacted with the intent to override the limitation prescribed by Sections 50, 51 and 52 then Section 48 ought to have also been included specifically since Section 48 is the limitation provision applicable to Section 47. Section 48 is not incorporated in the non-obstante provision of section 52 A. This is hence intrinsic material to indicate that the purpose of the non-obstante clause in Section 52A was to override the jurisdiction of the adjudicating authority (i.e the Collector) under Sections 47, 50, 51 and 52 to decide the claims for allowances. Section 52A specifically divests the power of the Collector to decide the claims of allowance falling within those provisions and vests the power to other authorities if the payment of stamp duty exceeds Rupees five CA 5970/2021 lakhs. In those cases, though the application is to be made to the Collector, he will have no adjudicatory capacity. The Collector must forward the application to the concerned authority as mentioned in Section 52A along with remarks and such authority would have the power to decide the claim. The interpretation that Section 52A only overrides the authority of the Collector in adjudicating the case is evident since the provision does not override Section 49 where the adjudicating officer is the Chief Controlling Revenue Authority. In such a case, Section 52A cannot be considered as a residual clause by applying it to classes of cases that do not fall within the purview of any other provisions. A contrary interpretation would create an artificial class based on economic capacity, as cases where the stamp duty paid exceeds Rupees five lakhs will alone be adjudicated without application of any limitation period as a residual case, while cases falling within the same class but where stamp duty paid is less than Rupees five lakhs cannot take recourse to the provision. It is an established principle of interpretation that an interpretation that furthers the constitutionality of a provision will have to be undertaken. An interpretation which leads to an invidious discrimination must be eschewed. Thus, the intendment of Section 52A was neither to cover the applications that are not brought under any of the preceding substantive clauses nor to override the limitation clauses. 28 Evidently, and for the reasons that we have indicated above, the application filed by the appellant did not fall within the ambit of Sections 47, 52 and 52A. It is true that the application for refund was titled with reference to the provisions of Section 47. But, it is well settled that a reference of a wrong statutory provision, CA 5970/2021 cannot oust the citizen of an entitlement to refund which otherwise follows in terms of a statutory provision. 29 In the present case, the stamp paper was purchased bona fide in view of the agreement to sell which was to be executed by the appellant with the developer. There was a dispute with the developer which led to the institution of the proceedings before the NCDRC. There was nothing untoward in the conduct of the appellant and certainly no unreasonable delay on the part of the appellant in awaiting the outcome of the proceedings. The NCDRC allowed the complaint giving the option to the appellant of either going ahead with the agreement along with an award of compensation or, in the alternative, to seek a refund with interest. The appellant having exercised the latter option applied within two months from the order of the NCDRC for the grant of refund. The conduct of the appellant, therefore, cannot be held to be unreasonable nor was there any intentional or wanton delay on the part of the appellant in applying for a refund of stamp duty. Such an application must be filed within a reasonable period. 30 In Committee-GFIL (supra), a two-judge Bench of this Court was dealing with the issue of limitation prescribed in the Indian Stamp Act 1899. In this case, an auction sale of immovable properties was held by a committee constituted by this Court. Successful bidders deposited with the committee, the entire sale consideration along with the stamp duty. However, the transaction failed due to reasons beyond the control of the parties. The Court cancelled the transaction CA 5970/2021 and directed the committee to refund the sale consideration with interest and permitted the purchasers to approach the State Government for refund of the stamp duty. The applications of the auction-purchasers seeking refund of stamp duty was rejected on the ground that the applications were time-barred. An application against the rejection of the refund applications was filed before this Court. This Court allowed the application on three grounds: (i) the transaction which was Court-monitored, could not be fulfilled for reasons beyond the control of the auction-purchasers. No act of the Court should prejudice a person; (ii) in view of the principle of restitution embodied in Section 65 of the Contract Act, any advantage received by a person under a void contract or a contract that becomes void is bound to be restored; and (iii) in light of equity and justice, the six months limitation period prescribed in Section 50 of the Indian Stamp Act 1899 must be read to mean six months from the date of the order of this Court. 31 We are conscious of the fact that as a general rule of law, the right to refund is a statutory creation. A refund can be sought in terms envisaged by statute. As discussed above, the case of the appellant is not specifically barred by any substantive provision. It is an established principle that this Court while exercising its power under Article 142 of Constitution must not ignore and override statutory provisions but must rather take note of the express statutory provisions and exercise its discretion with caution.3 Therefore, if a statute prescribes a limitation period, this Court must be slow to interfere with the delay under Article 142. 3AR Anthulay v. RS Nayak, (1988) 2 SCC 602; Union Carbide Corporation v. Union of India, (1991) 4 SCC 584; Supreme Court Bar Association v. Union of India, (1998) 4 SCC 409. CA 5970/2021 However, in the case of an eventuality such as the instant case where the facts of the case are not covered by the statute, this Court under Article 142 will have the power to do complete justice by condoning the delay. We are of the view that since the delay in filling the application for refund in the instant case was due to the prolonged proceedings before the NCDRC, the application cannot be rejected on the ground of delay. A litigant has no control over judicial delays. A rejection of the application for refund would violate equity, justice and fairness where the applicant is made to suffer the brunt of judicial delay. Therefore, this is a fit case for the exercise of the power under Article 142 of the Constitution. 32 For the above reasons, we allow the appeal and set aside the impugned judgment and order of the learned Single Judge of the Bombay High Court dated 22 November 2018. As a consequence, we direct that the appellant would be entitled to a refund of the stamp duty which was paid at the time of the purchase of the e-stamp paper, conditional on the appellant returning the e-stamp paper to the Collector of Stamps, Mumbai. The refund shall be processed within a period of one month of the delivery of the e-stamp paper to the Collector. The appellant would be entitled to interest at the rate of 6% per annum from 16 July 2016 until the date of refund. In the circumstances of the case, there shall be no order as to costs. CA 5970/2021 33 Pending applications, if any, stand disposed of. .........….....….......………………........J. [Dr Dhananjaya Y Chandrachud] ….....….....….......………………........J. [B V Nagarathna] New Delhi; September 24, 2021 CKB


REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 389 OF 2008 [Arising out of Special Leave Petition (Civil) No. 15612 of 2008] ACADEMY OF GENERAL EDU., MANIPAL & ANR. ... APPELLANTS Versus B. MALINI MALLYA ... RESPONDENT JUDGMENT S.B. SINHA, J. 1. Leave granted. 2. `Yakshagana' is a form of ballet dance. It has its own heritage. Indisputably, Dr. Kota Shivarama Karanth (for short, "Dr. Karanth"), a Jnanapeeth awardee, who was a Novelist, Play Writer, Essayist, Encyclopediationist, Cultural Anthropologist, Artist, Writer of Science, Environmentalist. He developed a new form of `Yakshagana'. He was a Director of the appellant - institute. On or about 18.6.1994, he executed a Will in favour of the respondent. Dr. Karanth expired on 9.12.1997. Yakshagana Ballet dance as developed by Dr. Karanth was performed in New Delhi on or about 18.9.2001. Respondent filed a suit for declaration, injunction and damages alleging violation of the copyright in respect of the said dance vested in her in terms of the said Will stating that Dr. Karanth developed a new distinctive dance, drama troop or theatrical system which was named by him as `Yaksha Ranga' which in his own words mean "creative extension of traditional Yakshagana" and, thus, the appellants infringed the copyright thereof by performing the same at New Delhi without obtaining her prior permission. It was stated that Dr. Karanth had composed seven verses or prasangas for staging Yaksharanga Ballet apart from bringing in changes in the traditional form thereof on its relevant aspects, namely, Raga, Tala, Scenic arrangement, Costumes etc. These prasangas are: (i) Bhishma Vijaya; (ii) Nala Damayanthi; (iii) Kanakangi or Kanakangi Kalyana; (iv) Abhimanyu or Abhimanyu Vada; (v) Chitrangadha or Babruvahana Kalaga; (vi) Panchavati; and (vii) Ganga Charitha. 3. Plaintiff - respondent admittedly claimed copyright in respect of `literary and artistic works' in her favour in terms of clauses 11 and 12 of the said Will dated 18.6.1994, which read as under: "11. Since I left the house `suhasa' I have been living in a specially built house "Manasa" of Smt. Malini Mallya, who has built it with borrowed money at her cost. She had joined my service as Copyist and later, she secured an employment in Life Insurance Corporation of India. Ever since 1974 till now in my old age she has been serving me with exemplary devotion and sincerity. And in this occasion I must also acknowledge with gratitude that she diligently cared and nursed my wife Leela Karanth during her prolonged illness till her last day. And she has cared and looked after me also during my illness which at times had been quite serious, enfeebling me for long period. In recognition of her devotion and sincere affection towards me in 1986 I have dedicated one of my novels namely, "Antida Aparanji" to her. I have also placed on record her invaluable services to me in my Memoirs, "Hunchu Mansina Hathu Mukhagalu" 1991 Edition. In my opinion, very long enduring and a signal service she has done to me and to my literary works is, in writing a bibliography of all my books- a highly meritorious and scholarly work involving so much of pains taking research, that it has been acclaimed and rated as the first of its kind in Kannada and highly appreciated by Critics and Scholars. Apart from this, she has collected and edited all my stray writings from 1924 onwards upto date in eight Sumptuous volumes which are being published by Mangalore University. This work also has brought her deserving fame and appreciation of Scholars. Such painstaking service in this direction has brought to light several of my hitherto untraced, forgotten and unknown writings and thereby giving them extended or renewed lease of life. For all these services, I hereby declare that after my death copyrights in respect of all my literary works shall vest with Smt. Malini Mallya and she alone shall be entitled to receive royalties of all my books and she shall be entitled to print, publish and republish and market the same. Whatever she may earn thereby shall be her exclusive income and property. No one else shall have any right or claims for the same. 12. From time to time I have distributed among my children all gold and silver jewels and ornaments and other valuables, which were gifted to me by my friends and admirers. And I have distributed all copper and bronze vessels and utensils among my children while leaving my former home "Suhasa" keeping only bare essential and necessary things and articles. Whatever movable properties, books, fittings, furniture, utensils etc. belonging to me into this house `Manasa' and my Car and cash money in hand after my death shall go to Smt. Malini Malya only. No one else shall have any claim or right over the same. Any outstanding due to me and Bank Deposits and whatever assets or properties not mentioned above, that is, residuary after my death shall belong to Smt. Malini Mallya alone." 4. Plaintiff- Respondent, inter alia, prayed for passing a judgment and decree against the defendants - appellants granting the following reliefs: "1. A declaration that the plaintiff is the exclusive copyright holder in respect of Yaksharanga ballets, namely, Bhishma Vijaya, Kanakangi, Nala Damayanthi, Panchavati, Gaya Charitha, Chitrangadha, Abhimanyu Vadha, and for consequential permanent injunction restraining the Defendants, their agents, employees etc. from staging or performing any of the above said 7 ballets or Prasangas or any parts thereof. 1,000-00 2. Directing the Defendants to pay to the plaintiff damages of Rs.15,000/- towards infringement of her copyright on account of stating or performing Abhimanyu Vadha on 18-9-2001 at New Delhi. 15,000-00 3. Directing the Defendants to pay to the plaintiff interest on Rs.15,000/- at 15% p.a. from 18-9-2001 till now which is 95-00 4. Directing the Defendants to pay future interest on Rs.15,000/- at 15% p.a. till payment of the entire amount. 5. ................................... 6. ....................................." 5. Appellants in their written statement, however, denied and disputed any copyright of the said dance in Dr. Karanth alleging that whatever work he had done was in the capacity of a Director of the Kendra with the assistance, finance and staff provided by the Organization of Mahatma Gandhi Memorial College Trust in respect whereof a Committee was formed under him by the Board of Trustees. It was furthermore contended that Dr. Karanth was appointed as the President of the Executive Committee of Yakshagana Kendra for a period of three years by the appellant and while holding the said post only he expired. 6. By reason of a judgment and decree dated 14.11.2003, the District Judge, Udupi decreed the said suit declaring the plaintiff - respondent as a person having the exclusive copyright in respect of seven Prasangas and that she had acquired the same by reason of a Will as a residuary legatee and the defendants - appellants or their employees or agents were restrained from performing the said seven ballets or Prasangas or any parts thereof in any manner as evolved distinctively by Dr. Karanth. 7. Appellants aggrieved thereby and dissatisfied therewith preferred an appeal before the Karnataka High Court which was marked as R.F.A. No. 271 of 2004. By reason of the impugned judgment and order dated 5.12.2007, the said appeal has been dismissed. 8. Appellants are, thus, before us. 9. Dr. Rajiv Dhavan, learned Senior Counsel appearing on behalf of appellants in his usual fairness conceded: i. The copyright in the literary work has been assigned by reason of the said Will in favour of the respondent in terms of clause 12 of the Will. ii. Dr. Karanth has made substantial changes in the original traditional form of the Yakshagana dance. Additions made in the form of the said dance including the Prasangas fell within the purview of `originality' in respect whereof copyright could be claimed. It was, however, urged: i. Keeping in view of the findings of the learned trial judge, it ought to have been held that no cause of action arose against the appellants in this case as the Institution had performed the said dance at New Delhi in the memory of Dr. Karanth without charging any fees. ii. The form of copyright as regards dramatic work as has been held by the High Court stating the same to be a part of the literary work is not correct as they connote two different things. iii. The form of injunction granted in favour of the plaintiff - respondent is not in terms of the provisions of the Copyright Act, 1957 as the appellant as an institution or otherwise is entitled to use the same in terms of clauses (a), (i) and (l) of sub-Section (1) of Section 52 thereof. 10. Mr. G.V. Chandrashekhar, learned counsel appearing on behalf of the respondent, on the other hand, would support the impugned judgment. 11. The Copyright Act, 1957 (for short, "the Act") was enacted to amend and consolidate the law relating to copyright. Section 2 is the interpretation section. Section 2(c) defines `artistic work' to mean (i) a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality; (ii) a work of architecture; and (iii) any other work of artistic craftsmanship. The word `author' is defined in Section 2(d) to mean, (i) in relation to a literary or dramatic work, the author of the work; (ii) in relation to a musical work, the composer; (iii) in relation to an artistic work other than a photograph, the artist; (iv) in relation to a photograph, the person taking the photograph; (v) in relation to a cinematograph film or sound recording, the producer; and (vi) in relation to any literary, dramatic, musical or artistic work which is computer-generated, the person who causes the work to be created. The term "communication to the public" as defined in Section 2(ff) reads as under: "(ff) "communication to the public" means making any work available for being seen or heard or otherwise enjoyed by the public directly or by any means of display or diffusion other than by issuing copies of such work regardless of whether any member of the pubic actually sees, hears or otherwise enjoys the work so made available. Explanation.- For the purposes of this clause, communication through satellite or cable or any other means of simultaneous communication to more than one household or place of residence including residential rooms of any hotel or hostel shall be deemed to be communication to the public" Section 2 (ffa) defines the word "composer", in relation to a musical work, to mean the person who composes the music regardless of whether he records it in any form of graphical notation. Section 2(h) defines "dramatic work" to include any piece of recitation, choreographic work or entertainment in dumb show, the scenic arrangement or acting, form of which is fixed in writing or otherwise but does not include a cinematograph film. Section 2(o) defines "literary work" to include computer programmes, tables and compilations including computer databases. Section 2(qq) defines "performer" to include an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance. Section 2(y) defines "work" to mean any of the following works, namely:- (i) a literary, dramatic, musical or artistic work; (ii) a cinematograph film; (iii) a sound recording. Section 13 which occurs in Chapter III of the Act provides that subject to the provisions thereof and the other provisions of the said Act, copyright shall subsists throughout India in the following classes of works, that is to say,- (a) original literary, dramatic, musical and artistic works; (b) cinematograph films; and (c) sound recording. Section 17 of the Act deals with "First owner of copyright", in terms whereof, subject to the provisions of the Act, the author of a work shall be the owner of the copyright therein. Proviso (d) appended thereto states that in the case of a Government work, Government shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein. Sections 22, 23 and 52(1)(a), (i) and (l) of the Act, which are relevant for our purpose read as under: "22. Term of copyright in published literary, dramatic, musical and artistic works.- Except as otherwise hereinafter provided, copyright shall subsist in any literary, dramatic, musical or artistic work (other than a photograph) published within the life time of the author until fifty years from the beginning of the calendar year following the year in which the author dies. Explanation- In this section, the reference to the author shall in the case of a work of joint authorship, be construed as a reference to the author who dies last. 23 - Term of copyright in anonymous and pseudonymous works.- (1) In the case of a literary, dramatic, musical or artistic work (other than a photograph), which is published anonymously or pseudonymously, copyright shall subsist until sixty years from the beginning of the calendar year next following the year in which the work is first published: Provided that where the identity of the author is disclosed before the expiry of the said period, copyright shall subsist until sixty years from the beginning of the calendar year following the year in which the author dies. (2) In sub-section (1), references to the author shall, in the case of an anonymous work of joint authorship, be construed,-- (a) where the identity of the authors is disclosed, as references to that author; (b) where the identity of more authors than one is disclosed, as references to the author who dies last from amongst such authors. (3) In sub-section (1), references to the author shall, in the case of a pseudonymous work of joint authorship, be construed,-- (a) where the names of one or more (but not all) of the authors arc pseudonymous and his or their identity is not disclosed, as references to the author whose name is not a pseudonym, or, if the names of two or more of the authors are not pseudonyms, as references to such of those authors who dies last; (b) where the names of one or more (but not all) of the authors arc pseudonyms and the identity of one or more of them is disclosed, as references to the author who dies last from amongst the authors whose names arc not pseudonyms and the authors whose names are pseudonyms and are disclosed; and (c) where the names of all the authors arc pseudonyms and the identity of one of them is disclosed, as references to the author whose identity is disclosed or if the identity of two or more of such authors is disclosed, as references to such of those authors who dies last. Explanation.--For the purposes of this section, the identity of an author shall be deemed to have been disclosed, if either the identity of the author is disclosed publicly by both the author and the publisher or is otherwise established to the satisfaction of the Copyright Board by that author. 52. Certain acts not to be infringement of copyright.- (1) The following acts shall not constitute an infringement of copyright, namely:- (a) a fair dealing with a literary, dramatic, musical or artistic work not being a computer programme for the purpose of-- (i) Private use including research; (ii) criticism or review, whether of that work or of any other work; xxx xxx xxx (i) the performance, in the course of the activities of an educational institution, of a literary, dramatic or musical work by the staff and student of the institution, or of a cinematograph film or a sound recording, if the audience is limited to such staff and students, the parents and guardians of the students and persons directly connected with the activities of the institution or the communication to such an audience of a cinematograph film or sound recording. xxx xxx xxx (l) the performance of a literary, dramatic or musical work by an amateur club or society, if the performance is given to a non-paying audience, or for the benefit of a religious institution." 12. Before adverting to the submissions made by the learned counsel for the parties, we may notice the issues framed in the suit, which are: "i. Does plaintiff prove that late Dr. Shivaramaji Karanth had acquired copyright in respect of seven Yakshagana Prasangas and also in respect of Yakshagana dramatic or theatrical form i.e., Bhishma Vijaya, Nala Damayanthi, Kanakaangti or Kanakangi Kalyana, Abhimanyu or Abhimanyu Vadha, Chitrangadha or Babruvahana Kalaga, Panchavati Chritha followed in the plaint? ii. Has the plaintiff became entitled to the said right under the Registered Will dated 18.06.1994? iii. Does the plaintiff prove that her right under the said Will was infringed by the defendants?" 13. Indisputably, in view of the submissions made at the bar, respondent had acquired copyright in respect of seven Yakshagana Prasangas as also in respect of Yakshagana dramatic or theatrical form as a residuary legatee in terms of clause 12 of the Will dated 18.6.1994. However, we may notice that whereas the trial court has proceeded on the basis that clause 12 of the Will shall apply in the instant case, the High Court opined that clause 11 thereof is attracted, stating: ".....No doubt, by reading para-12 of the `Will' in isolation, one can certainly arrive at the conclusion that the bequest made in favour of the plaintiff is in the nature of residuary bequest. But, that is not all, in the `Will'-Ex. P-1. I have already referred to para No. 11 of the `Will' while dealing with the topic dramatic works vis- `-vis literary work and therefore if the `Will' is read in its entirety and if we take into account, the benefits that flow from the bequest made by Dr. Karanth in favour of the plaintiff, it is not as if the plaintiff received the bequest only in respect of the things which form the residuary as mentioned in para-12 of the `Will' but the plaintiff also was given the copyrights in respect of literary works and all books as well as the right to print, republished and mark the literary works as well as the books." Referring to the new Encyclopaedia Britannica and Halsbury's Laws of England, that a literary work with dramatic elements in it would also be literary work, the High Court observed: "Dramatic works also could contain in its, passages of great literary taste, as in the case of great plays of William Shakespear. Therefore, the main classification as literary work and dramatic work cannot be construed to mean that dramatic work has nothing to do with literary work. The only difference I see in them is that the dramatic work (Plays) forms the text upon which the performance of the plays rests whereas a `literary work' enables one to read the printed words. Neither of the two can be produced without the imaginative skill of the author." It was furthermore held: "I am of the considered opinion that all the above changes brought about by Dr. Karanth in respect of Yakshagana Ballet leads to the inference that the imaginative faculties of Dr. Karanth permeated the entire Yakshagana Prasangas and thus a new look was given to the Yakshagana Ballets. I, therefore, hold that the bequest of copyright in literary works and books in favour of the plaintiff by Dr. Karanth, will have to be treated as the bequest covering the dramatic works also since I have also drawn the conclusion that the dramatic works is also a form of literature. Therefore, necessity of mentioning copyright separately in respect of dramatic works does not arise. The plaintiff, therefore, is entitled to copyright even in respect of the dramatic works namely the seven prasangas, by virtue of bequest made in her favour in respect of copyrights and books." 14. Broadly speaking, a dramatic work may also come within the purview of literary work being a part of dramatic literature. The new Encyclopaedia Britannica (Vol-IV) 15th Edition, provides the following information about "Dramatic Literature. "Dramatic Literature: the texts of plays that can be read, as distinct from being seen and heard in performance." We must, however, notice that the provisions the Act make a distinction between the `literary work' and `dramatic work'. Keeping in view the statutory provisions, there cannot be any doubt whatsoever that copyright in respect of performance of `dance' would not come within the purview of the literary work but would come within the purview of the definition of `dramatic work'. We, however, do not mean to suggest that any act of literary work will be outside the purview of the Will dated 18.6.1994. Our exercise in this behalf was only for the purpose of clarifying the provisions of the Act with reference to the findings arrived at by the High Court. 15. For the aforementioned reasons, we agree with Dr. Dhavan that paragraph 12 of the Will, namely, residuary clause shall apply in the instant case apart from the areas which are otherwise covered by paragraph 11 of the Will. The residuary clause will apply because it is well settled that no part of the stay lies in limbo. It was also not a case where respondent in any manner whatsoever waived her right. 16. The learned trial judge on issue No. 4 opined that plaintiff had not been able to prove actual loss or damage particularly having regard to the fact that Dr. Karanth had associated himself with the appellants for a long time. The learned trial judge recognized the equitable interest vested in the plaintiff - respondent. A declaratory decree, therefore, was passed. 17. We may notice at this stage that the form of injunction granted both by the learned trial judge as also by the High Court in favour of the plaintiff-respondent. The operative part of the judgment of the trial court reads as under: "Defendants or their employees or agents are restrained from performing the above said 7 ballets or Prasangas or in parts thereof in any manner as evolved distinctively by Dr. Karanth by way of permanent injunction." The High Court, however, directed: "(iii) As far as the restraint order passed by the Trial Court by granting permanent injunction to the plaintiff is concerned, the same is modified by ordering that if the appellants desire to stage any of the seven Yakshagana prasangas in the manner and form as conceived in all respects viz., costumes, choreography and direction by Dr. Karanth, the appellants can do so only in accordance with the provisions of the Copyrights Act, 1957 in view of copyright in seven prasangas vesting with the plaintiff." 18. Decree for injunction is an equitable relief. The courts while passing a decree for permanent injunction would avoid multiplicity of proceedings. The court while passing such a decree, is obligated to consider the statutory provisions governing the same. For the said purpose, it must be noticed as to what is a copyright and in respect of the matters the same cannot be claimed or otherwise the same is lodged by conditions and subject to statutory limitation. 19. In R.G. Anand vs. M/s Delux Films & ors. [(1978) 4 SCC 118], this Court held: "46. Thus, on a careful consideration and elucidation of the various authorities and the case law on the subject discussed above, the following propositions emerge: 1. There can be no copyright in an idea, subject-matter, themes, plots or historical or legendary facts and violation of the copyright in such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyrighted work. 2. Where the same idea is being developed in a different manner, it is manifest that the source being common, similarities are bound to occur. In such a case the courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work. If the defendant's work is nothing but a literal imitation of the copyrighted work with some variations here and there it would amount to violation of the copyright. In other words, in order to be actionable the copy must be a substantial and material one which at once leads to the conclusion that the defendant is guilty of an act of piracy. 3. One of the surest and the safest test to determine whether or not there has been a violation of copyright is to see if the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original. 4. Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises. 5. Where however apart from the similarities appearing in the two works there are also material and broad dissimilarities which negative the intention to copy the original and the coincidences appearing in the two works are clearly incidental no infringement of the copyright comes into existence. 6. As a violation of copyright amounts to an act of piracy it must be proved by clear and cogent evidence after applying the various tests laid down by the case-law discussed above. 7. Where however the question is of the violation of the copyright of stage play by a film producer or a director the task of the plaintiff becomes more difficult to prove piracy. It is manifest that unlike a stage play a film has a much broader prospective, wider field and a bigger background where the defendants can by introducing a variety of incidents give a colour and complexion different from the manner in which the copyrighted work has expressed the idea. Even so, if the viewer after seeing the film gets a totality of impression that the film is by and large a copy of the original play, violation of the copyright may be said to be proved." Yet again in Eastern Book Company & ors. vs. D.B. Modak & Anr. [(2008) 1 SCC 1], this Court held: "57. The Copyright Act is not concerned with the original idea but with the expression of thought. Copyright has nothing to do with originality or literary merit. Copyrighted material is that what is created by the author by his own skill, labour and investment of capital, maybe it is a derivative work which gives a flavour of creativity. The copyright work which comes into being should be original in the sense that by virtue of selection, coordination or arrangement of pre-existing data contained in the work, a work somewhat different in character is produced by the author. On the face of the provisions of the Copyright Act, 1957, we think that the principle laid down by the Canadian Court would be applicable in copyright of the judgments of the Apex Court. We make it clear that the decision of ours would be confined to the judgments of the courts which are in the public domain as by virtue of Section 52 of the Act there is no copyright in the original text of the judgments. To claim copyright in a compilation, the author must produce the material with exercise of his skill and judgment which may not be creativity in the sense that it is novel or non- obvious, but at the same time it is not a product of merely labour and capital. The derivative work produced by the author must have some distinguishable features and flavour to raw text of the judgments delivered by the court. The trivial variation or inputs put in the judgment would not satisfy the test of copyright of an author." 20. The High Court, in our opinion, should have clarified that the appellants can also take the statutory benefit of the provisions contained in clauses (a), (i) and (l) of sub-section (1) of Section 52 of the Act. Section 52 of the Act provides for certain acts which would not constitute an infringement of copyright. When a fair dealing is made, inter alia, of a literary or dramatic work for the purpose of private use including research and criticism or review, whether of that work or of any other work, the right in terms of the provisions of the said Act cannot be claimed. Thus, if some performance or dance is carried out within the purview of the said clause, the order of injunction shall not be applicable. Similarly, appellant being an educational institution, if the dance is performed within the meaning of provisions of clause (i) of sub-section (1) of Section 52 of the Act strictly, the order of injunction shall not apply thereto also. Yet again, if such performance is conducted before a non-paying audience by the appellant, which is an institution if it comes within the purview of amateur club or society, the same would not constitute any violation of the said order of injunction. 21. With the aforementioned modification in the order of injunction, this appeal is dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs. ......................................J. [S.B. Sinha] .....................................J. [Lokeshwar Singh Panta] .....................................J. [B. Sudershan Reddy] New Delhi; January 23, 2009