Lokhandwala Infrastructure Pvt. … vs Dhobighat Compound Rahiwasi Seva … on 30 October, 2014

Bombay High Court
Lokhandwala Infrastructure Pvt. … vs Dhobighat Compound Rahiwasi Seva … on 30 October, 2014
Bench: S.C. Gupte
    sat                                                                          1/13                                               nms 1516-2011.doc

                                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                                                                             
                                            ORDINARY ORIGINAL CIVIL JURISDICTION




                                                                                                         
                                            NOTICE OF MOTION NO. 1516 OF 2011
                                                            IN
                                                  SUIT NO. 1108 OF 2011

               Lokhandwala Infrastructure Pvt.Ltd.                                                                        ...Applicant / Plaintiff




                                                                                                        
                    vs.
               Dhobhighat Compound Rahiwasi Seva Sangh & Ors.                                                             ...Defendants


               Dr.Veerendra Tulzapurkar, Senior Advocate with Mr.Chirag Balsara, Mr.Farid




                                                                                 
               Karachiwala, Mr.Sneh Mehta & R. Nichani i/b. M/s. Wadia Ghandy & Co. for
               Plaintiff in Suit 1108/2011.        
               Mr.Pravin Samdani, Senior Advocate with Mr.Chirag Balsara, Farid Karachiwala,
               Mr.Sneh Mehta, R. Nichani and Mr.Amit Rao i/b. M/s.Wadia Ghandy & Co. for
               Plaintiff in Suit No.1163/2011.
                                                  
               Mr.S.U. Kamdar, Senior Advocate with Mr.Zubin Behram-Kamdin for Defendant
               No.2 in NMS 1516/2011, Suit 1108-2011 and for Defendant No.2 in NMS
               1551/2011 Suit 1163-2011.
                  


               Mr.J.G. Reddy for Defendant No.24 in Suit 1163/2011.
               



               Mr.Vivek Vashi with Mr.Alya Khan i/b. M/s.Bharucha & Partners for Defendant
               No.26 in Suit 1108/2011 and for Defendant No.23 in Suit 1163/2011.


                                                                                     CORAM : S.C. GUPTE, J.





                                                                       RESERVED ON : 09 JULY 2014

                                                                PRONOUNCED ON : 30 OCTOBER 2014

               ORDER :

This Notice of Motion is taken out by the Plaintiff for appointment of
Court receiver and interim injunction against the Defendants restraining them
from acting upon or giving effect to the development agreement entered into
between Defendant Nos. 1 and 2 and Defendant No. 26. The Plaintiff, who is a
developer and who claims to have entered into a development agreement with
Defendant Nos. 1 and 2 and Defendant Nos. 7 to 25 for development of the suit
property, has filed the present suit for specific performance of that development

::: Downloaded on – 30/10/2014 23:48:09 :::
sat 2/13 nms 1516-2011.doc

agreement. The Defendants objected to the jurisdiction of this Court to hear the

suit in view of the provisions of Section 42 of the Maharashtra Slum Areas
(Improvement, Clearance and Redevelopment) Act, 1971. Accordingly, a

preliminary issue of jurisdiction was framed by this Court. That issue is being
decided by this order. The short facts of the Plaintiff’s case, relevant for the
determination of the present controversy, may be noted as follows:

2 The suit property is a notified slum within the meaning of the
Maharashtra slum (Improvement, Clearance and Redevelopment) Act, 1971

(“Slum Act”). The slum dwellers were desirous of developing the suit property
under a slum rehabilitation scheme (“SRA Scheme”). On about 10 August 2003,

Defendant Nos. 1 and 2, who are respectively the association of eligible slum
dwellers and registered Society of slum dwellers/members, occupying the suit

property, entered into a development agreement, through their representatives
being Defendant Nos. 7 to 25, with the Plaintiff. Pursuant to the development
agreement, Defendant Nos. 7 to 25 also executed an irrevocable power of
attorney dated 10 August 2003 in favour of the Plaintiff authorizing the Plaintiff to

do all acts necessary for implementation of the SRA Scheme. The Plaintiff claims

to have received irrevocable written consents of 95% of the members of
Defendant No. 2 Society residing on the suit property.

3 After execution of the development agreement, by a letter dated 20

September 2003, the Plaintiff submitted the SRA Scheme to the authorities under
the Slum Act. It is the Plaintiff’s case that despite following up the matter with
Defendant Nos.27 and 28, the issuance of Annexure – II on the SRA Scheme
submitted by the Plaintiff was delayed. It is also the Plaintiff’s case that the

Plaintiff has duly complied with its part of the obligations under the development
agreement and has also been ready and willing to comply with all its remaining
obligations under the agreement.

4 By its letter dated 11 August 2009, Defendant No. 2 terminated the
development agreement executed with the Plaintiff. On 20 September 2009,
Defendant No. 2 called a general body meeting for appointment of a new

::: Downloaded on – 30/10/2014 23:48:09 :::
sat 3/13 nms 1516-2011.doc

developer in substitution of the Plaintiff.

5 The Plaintiff, in the premises, filed an arbitration petition, being

Arbitration Petition No. 759 of 2009, seeking an injunction against holding of this
meeting. This Court by its order dated 18 September 2009 did not grant any
interim relief but observed that the decision, if any, taken in this meeting would be

subject to the order that may be passed in the petition.

6 Defendant Nos. 1 and 2 proceeded to hold the meeting and
appointed Defendant No. 26 as the developer for development of the suit

property under any SRA Scheme. Defendant No. 26 claimed to have obtained
consent of more than 70% of eligible slum dwellers for its SRA Project. A general

body meeting of the members of Defendant No. 2 was convened thereupon by
the Registrar of Co-operative Societies for the purpose of ascertaining whether

the Plaintiff or Defendant No. 26 enjoyed the support of not less than 70% of the
slum dwellers.

7 The Plaintiff challenged the decision of the Registrar calling such

meeting by filing a petition, being Writ Petition No. 679 of 2010. This Court

dismissed the Writ Petition. Around the same time, the Defendants moved an
application before the high-powered committee seeking removal of the Plaintiff as
a developer and appointment of Defendant No. 26 as the new developer. The

application was dismissed by the high-powered committee as being premature.

8 Defendant No. 27 thereafter accepted the Defendant’s case that the
Defendant No. 26 enjoyed the support of more than 70% of the members of

Defendant No.2 and directed its engineering department to process issuance of a
letter of intent in favour of Defendant No. 26.

9 Once again this decision was challenged by the Plaintiff by filing
another writ petition, being Writ Petition No. 95 of 2011. The order of Defendant
No. 27 was set aside by a Division Bench of this Court. This Court, however,
directed that Defendant No. 27, after giving an opportunity of being heard both to
the Plaintiff and Defendant No. 26, shall arrive at a decision as to whether or not

::: Downloaded on – 30/10/2014 23:48:09 :::
sat 4/13 nms 1516-2011.doc

the Plaintiff continues to have the support of 70% of slum dwellers. The Plaintiff

challenged this part of the order by filing a review petition. The review petition,
however, was dismissed by this Court. An SLP was preferred by the Plaintiff

against the dismissal of the review petition. The Supreme Court refused to set
aside the order passed by this Court on the review petition and simply directed
postponement of the meeting fixed for the purpose by 15 days with liberty to the

parties to make appropriate applications in the pending arbitration petitions.

10 The Plaintiff subsequently withdrew the arbitration petitions and filed
the present suit. In this suit, the Plaintiff claims a declaration that the development

agreement between Defendant Nos. 2 and 26 is illegal, null and void. The Plaintiff

also claims specific performance of the development agreement entered into
between the Plaintiff and Defendant No. 2.

11 The jurisdiction of this Court is objected to by Defendant No. 2 on
the ground of the bar of jurisdiction of Civil Courts under Section 42 of the Slum
Act. Relying on the various provisions of the Slum Act read with DCR 33(10) of

the Development Control Regulations for Greater Mumbai, and the evidence of
the Plaintiff’s witness, it is submitted by Mr. Kamdar, learned Senior Counsel for

Defendant No. 2, that the present suit involves matters which the authorities
under the Slum Act are alone empowered to determine and therefore, the
jurisdiction of this Court is barred under the provisions of Section 42 of the Slum

Act. Learned Counsel relies upon the decisions in the cases of Naresh
Lachmandas Aswani Vs. Haridas alias Haridas Lachmandas 1, Qari
Mohammed Zakir Hussain & Ors. Vs. Municipal Corporation of Greater
Mumbai2, Slum Rehabilitation Authority Vs. Kohinoor (SRA) Co-op. Hsg.

Society3, Om Shree Sai Developers Vs. State of Maharashtra 4, Lokhandwala
Infrastructure Pvt. Ltd. Vs. State of Maharashtra 5 and Pramila Suman Singh
Vs. State of Maharashtra6.

1

          2    2002(2) Bom.C.R. 98
          3    2014(1) Bom.C.R. 449
          4    2010(6) Bom.C.R.194
          5    2011(3) Bom.C.R. 240
          6    2009(2) Bom.C.R. 138

                                                                                                                                                 

                                                                                                       ::: Downloaded on - 30/10/2014 23:48:09 :::
     sat                                                                        5/13                                               nms 1516-2011.doc

          12                  In reply, Dr. Tulzapurkar, learned Senior Counsel appearing for the




                                                                                                                                           

Plaintiff, refers to the various provisions of the Slum Act and the averments in the
plaint and documents annexed thereto and submits that the suit as framed does

not involve determination of matters referred to in Section 42 of the Slum Act.

13 The Slum Act makes various provisions for improvement, clearance

and redevelopment of slums. It enacts provisions for Slum Rehabilitation
Schemes. It creates authorities for implementing these schemes. It provides for
ouster of jurisdiction of Civil Courts in respect of matters which such authorities
are empowered to determine under the Slum Act. The relevant provisions in this

behalf may be noted at the outset. (Since the State Government has appointed a

Slum Rehabilitation Authority and published a Slum Rehabilitation Scheme for the
areas which include the suit property herein, respectively, under Section 3A and
3B of the Slum Act, the provisions of the Slum Act which apply to the facts of this

case, and which are noted below, are the modified provisions of the Slum Act
according to Section 3D of the Slum Act.) Section 3A of the Slum Act provides for
constitution of a Slum Rehabilitation Authority (“Authority”) for implementing the

Slum Rehabilitation Scheme framed and published under Section 3B. Under Sub-

Section (3) of Section 3A, the powers, duties and functions of the Authority are as
follows :

“(3) The powers, duties and functions of the Slum

Rehabilitation Authority shall be, –

(a) to survey and review existing position regarding
slum areas;

(b) to formulate schemes for rehabilitation of slum

areas;

                                (c) to get                       the         Slum            Rehabilitation                   Scheme
                                implemented;

                                (d) to do all such other acts and things as may be

necessary for achieving the objects of rehabilitation of
slums.”

Section 3B provides for preparation and publication of a general Slum
Rehabilitation Scheme for the areas specified under sub-section (1) of Section

::: Downloaded on – 30/10/2014 23:48:09 :::
sat 6/13 nms 1516-2011.doc

3A. Under sub-section (4) of Section 3B, the Authority lays down the parameters

for declaration of any area as a slum rehabilitation area and indicates the manner
in which rehabilitation of such area shall be carried out. Section 3C empowers the

Chief Executive Officer of the Authority to declare any area as a slum
rehabilitation area under the Slum Rehabilitation Scheme. Such declaration,
which is referred to as “the slum rehabilitation order”, can be challenged by any

aggrieved person under sub-section (2) of Section 3C before a Special Tribunal
appointed under the Slum Act. Section 3D provides for application of the other
chapters of the Slum Act to Slum Rehabilitation Area with modifications. Sections

3Z-1 and 3Z-2 provide for powers of the Competent Authority to demolish
unauthorized or illegal dwelling structures and penal liabilities. Section 12

empowers the Chief Executive Officer of the Authority to make a clearance order
in relation to any slum area, which is declared as a slum rehabilitation area,

ordering demolition of each of the buildings specified therein. Any aggrieved
person can prefer an appeal from the clearance order to the Special Tribunal,
under sub-section (4) of Section 14. Section 13 of the Slum Act is in the following
terms :

“13. Power of Slum Rehabilitation Authority to develop
Slum Rehabilitation Area.

(1) Notwithstanding anything contained in sub-section
(10) of section 12, the slum Rehabilitation Authority may,

after any area is declared as the Slum Rehabilitation
Area, if the landholders or occupants of such area do not
come forward within a reasonable time, with a scheme for
re-development of such land, by order, determine to re-
develop such land by entrusting it to any agency for the
purpose.

(2) Where on declaration of any area as a Slum
Rehabilitation Area the Slum Rehabilitation Authority, is
satisfied that the land in the Slum Rehabilitation Area has
been or is being developed by the owner in contravention
of the plans duly approved, or any restriction or conditions
imposed under sub-section (10) of section 12, or has not
been developed within the time, if any, specified under
such conditions it may, by order, determine to develop the
land by entrusting it to any agency for the purpose :

::: Downloaded on – 30/10/2014 23:48:09 :::

sat 7/13 nms 1516-2011.doc

Provided that, before passing such order, the

owner shall be given a reasonable opportunity of showing
cause why such order should not be passed.”

Section 22 provides for a prohibition from taking proceedings for eviction of
occupiers or execution of eviction decrees or for issue of distress warrants
without the previous permission of the Authority. Section 23 provides for an

appeal from such order. Section 24 provides for allotment of tenements to
occupants who have vacated, or have been evicted from, the premises in their
occupation in a slum rehabilitation area, after completion of the development of
the area and reconstruction of the building/s therein under the Scheme. Section

27 to 40 provide for various miscellaneous matters such as entry and inspection

powers of the Authority, allotment of tenements to slum dwellers not willing to join
the scheme, removal of offensive or dangerous trades from slum areas,
demolition of buildings in certain cases, jurisdiction of courts, etc. Sections 41 and

42, which bar suits and prosecutions, and jurisdiction of civil courts, are in the
following terms :

“41. Protection of action taken in good faith.

No suit, prosecution, or other legal proceedings
shall lie against the Competent Authority, Slum
Rehabilitation Authority or against any person acting
under its authority for anything which is in good faith done
or intended to be done under this Act or the rules made

thereunder.

42. Bar of jurisdiction

Save as otherwise expressly provided in this Act,
no civil court shall have jurisdiction in respect of any

matter which the Slum Rehabilitation Authority, the
Appellate Authority, Competent Authority, Grievance
Redressal Committee or Special Tribunal is empowered
by or under this Act, to determine; and no injunction shall
be granted by any court or other authority in respect of
any action taken or to be taken in pursuance of any
power conferred by or under this Act.”

14 As the provisions of the Slum Act quoted above indicate, the

::: Downloaded on – 30/10/2014 23:48:09 :::
sat 8/13 nms 1516-2011.doc

matters which the Administrator, Authority and Tribunal are empowered to decide

are the specific matters noted above. These matters are out of bounds for the
civil court to exercise jurisdiction over, under Section 42 of the Slum Act. So also

no injunction can be granted by any court or authority in respect of any action
taken or to be taken in pursuance of any power conferred by or under the Slum
Act. (The powers are noted above.)

15 The Plaintiff has sought the following reliefs in the suit:

(a) Declaration of nullity in respect of the termination of the suit

development agreement by Defendant No.2 and the corresponding
declaration of subsistence and validity of the suit development

agreement and power of attorney executed by Defendant No. 2 in
favour of the Plaintiff;

(b) Specific performance of the suit development agreement by
Defendant Nos. 1 to 25 and members of Defendant No.1 /
Defendant No.2 and consequential reliefs;

(c) Cancellation of the rival development agreement between
Defendant Nos. 1 to 25 on the one hand and Defendant No. 26 on
the other and consequential reliefs; and

(d) Damages against Defendant Nos. 1 to 25 in the alternative.

In other words, the suit is basically for specific performance of a
development agreement (which is coupled with an agreement to sell immovable

property) or damages in lieu thereof. The cause of action is : (i) execution of a
development agreement between the Plaintiff and Defendant Nos. 1 to 25, and

(ii) non performance of that development agreement by Defendant Nos. 1 to 25
inter alia by executing a development agreement with a rival developer,
Defendant No. 26. Now the question is, does this cause of action and reliefs
claimed in connection therewith involve matters which the administrator or the
Authority or the Tribunal is empowered by or under the Slum Act to determine.

::: Downloaded on – 30/10/2014 23:48:09 :::

     sat                                                                     9/13                                               nms 1516-2011.doc

          16               Having regard to the powers, duties and functions of the Authority, it




                                                                                                                                        

is clear that the Authority is not empowered to determine the private rights or
liabilities as between the Slum dwellers and the developer vis-a-vis any

development agreement entered into between them for redevelopment of any
slum. Whether or not such development agreement is binding on the parties
thereto, whether or not either of the parties has breached such development

agreement, and whether or not the party complaining of a breach is entitled to
specific performance of the development agreement, all of which are matters
arising for the determination of this Court in the present suit, are not matters

which the Authority is empowered to decide under the Slum Act. (None of these
matters fall for the determination of any of the other entities including the Special

Tribunal named in Section 42.)

17 But Defendant No.2 contends that a party cannot seek to do
indirectly what he cannot do directly. It is submitted that granting of reliefs in the
present suit would involve impugning the exercise of the Authority of its powers
under Section 3A read with Section 13(2) of the Slum Act to appoint Defendant

No.26 as the developer / builder for the Slum Rehabilitation Scheme in question.

It is submitted that the bar under Section 42 of the Slum Act does not
countenance this.

18 Section 13(2) empowers the Authority to determine to develop the
land by any agency recognized by it for the purpose, on being satisfied that the
land has been or is being developed by the owner “in contravention of the plans
duly approved, or any restriction or conditions imposed under Sub-section (10) of

Section 12, or has not been developed within the time, if any, specified under
such conditions.” It is not anyone’s case that this power has been exercised by
the Authority or that Defendant No.26 is entrusted with the development of the
suit property through the exercise of this power. The termination of the suit
development agreement and execution of the rival development agreement with
Defendant No.26 by Defendant No.2, are matters involving their private inter se
disputes and do not in any way concern the Authority or exercise of any power by
it under the Slum Act.

::: Downloaded on – 30/10/2014 23:48:09 :::

     sat                                                                    10/13                                               nms 1516-2011.doc




                                                                                                                                        
          19               As for the particular relief, namely, the permanent or temporary

injunction restraining Defendant No.26 from carrying on any development or

directly or indirectly preventing it from acting as a developer of the particular Slum
Rehabilitation Scheme, which the Authority has authorized it to do, whether or not
such relief can be granted would be considered on merits at the hearing of the

suit or the Notice of Motion, as the case may be. Such a consideration does not
reflect on the jurisdiction of this Court to entertain the suit as a whole. The Court
may entertain the suit and yet not grant the particular relief, if it considers the

same to be barred under Section 42 of the Slum Act.

20

Learned Counsel for Defendant No.2 relied on the judgment of this
Court in Lokhandwala Infrastructure (supra) to submit that the dispute between

a society of slum dwellers and the developer does not lie purely in the realm of a
private contractual dispute in the context of the role of the Authority with respect
to the scrutiny and approval of a slum rehabilitation scheme. It is submitted that
such a dispute has an important bearing on the proper implementation of the

slum rehabilitation scheme and goes beyond the interests of the society and the

developer. In Lokhandwala Infrastructure (supra), the petitioner developer had
challenged an order of the CEO of the Authority directing processing of a letter of
intent in favour of another developer (who was one of the respondents in the

petition) on the ground that 70% members of the co-operative society had
supported the respondent developer at a general body meeting. The petitioner
developer was seeking a writ of mandamus directing the Authority to process his
proposal for redevelopment and consider issuance of a letter of intent in his

favour. One of the submissions before the Court was that a dispute between the
co-operative society and its developer is a private dispute and a recourse to
private law remedies was the only form of redress. Whilst considering this
argument, this Court held that the execution of Slum Rehabilitation Scheme was
impressed with a public character; that lands on which such scheme was sought
to be sanctioned and implemented might be lands belonging to the Municipal
Corporation or the State or its instrumentabilities such as MHADA, etc.; that the
co-operative societies of slum dwellers and developers through whom the

::: Downloaded on – 30/10/2014 23:48:09 :::
sat 11/13 nms 1516-2011.doc

scheme was sought to be implemented facilitated the implementation of the

scheme; but that the State as the owner had a vital public interest in ensuring that
the object for which the land was utilized subserved the purpose of rehabilitation

of the slum dwellers. This Court, therefore, held that though a dispute between
the co-operative society and its developer had a private element, a recourse to
private law remedies was not the only available form of redress; that the Authority

and the owners of the land such as the Municipal Corporation or the State were
vital components of the rehabilitation scheme; and that their statutory powers
were not trammelled by private contractual arrangements.

21 This entire discussion as to whether or not public law remedies can

be availed of in cases of rehabilitation schemes where there may be private
disputes between the society and the developer, but equally the actions of the

Authority based on such disputes are under scrutiny, is quite besides the point in
our case. Here, a developer has come before the Court essentially with a private
dispute and has not challenged any action of the Authority or sought
determination of any matter, which exclusively rests with the Administrator,

Authority or Tribunal. What we are considering here is whether the jurisdiction of

the civil court is barred and not whether the recourse to that jurisdiction is the only
form of redress. The ratio of Lokhandwala Infrastructure (supra) has no
application to the facts of our case.

22 The other cases relied upon by Defendant No.2 also lend no
assistance to its case. In Naresh Lachmandas Aswani (supra), the plaintiff
claimed as successor-in-interest of the lessee of the suit property, a slum which

was being developed under a letter of intent issued by the Authority. Prayers (d)
and (i) of that suit sought an order and decree to hand over possession of the suit
property to the plaintiff. Such possession was sought from the third defendant,
who was the owner / developer of the suit property and in whose favour a letter of
intent was granted by the Authority. This Court held that in view of the admitted
fact that the scheme was being implemented under a letter of intent granted by
the Authority, the prayer for possession cannot be granted by a civil court in the
face of the bar under Section 42. The Court at the same time considered prayers

::: Downloaded on – 30/10/2014 23:48:09 :::
sat 12/13 nms 1516-2011.doc

(a) to (c) and (e) to (h) in that suit, which were seeking a declaration and

corresponding reliefs concerning the plaintiff’s entitlement to a share in the suit
property and challenge to the deeds executed by the first defendant in favour of

other defendants, to be within its jurisdiction. The ratio of this decision has no
bearing on the maintenability of the present suit which challenges the society’s
action in terminating the suit development agreement and entering into a rival

development agreement with another developer. In Qari Mohammed’s case
(supra), a section of hutment dwellers had challenged the action of the Authority
in allotting the suit land, which was owned by the Municipal Corporation, to the

respondent developers. The action was impugned as a collusive and mala fide
action. This Court in fact held that if the act is mala fide or fraudulent or collusive,

the civil court retained its jurisdiction to even question an act of the Authority. It is
difficult to see how this judgment may even remotely help Defendant No.2. In

Kohinoor (SRA) Co-operative Society’s case (supra), the developer plaintiff
had sought a direction against the Authority to accept the plaintiff’s proposed
rehabilitation scheme. This Court held that the civil court had no jurisdiction in the
matter in view of the bar under Section 42. The relief sought there was in the

teeth of the bar. As explained above, such is not the case in the present suit. In

Om Shree Sai Developer’s case (supra), the same principle, as in Kohinoor
(SRA) Co-operative Society, is affirmed. In Pramila Suman Singh (supra), the
Court was not concerned with the bar under Section 42 or any of the issues

relevant in the context of our case.

23 Mr.Kamdar referred to the various orders passed by the Authority in
the present case and the orders passed in the various challenges to the same

before this Court and the Supreme Court. He submitted that having regard to
these orders, it is clear that the Plaintiff no longer enjoys the support of the
statutory number of eligible slum dwellers and it has been confirmed that
Defendant No.26 enjoys such support. These facts, any way, reflect on the
Plaintiff’s entitlement to get the relief in the suit, namely, specific performance of
his development agreement or the interim relief in the Notice of Motion, namely,
the interim injunction sought. But it is difficult to see how they non-suit the Plaintiff
on a ground of want of jurisdiction. If the Court accepts the Defendant’s plea of

::: Downloaded on – 30/10/2014 23:48:09 :::
sat 13/13 nms 1516-2011.doc

the various orders disentitling the Plaintiff to specific performance of its contract,

the Court can very well consider granting the Plaintiff damages in lieu of specific
performance, which, in any case, is an alternative prayer of the Plaintiff.

24 In that view of the matter, there is no substance in the plea of bar of
jurisdiction under Section 42 of the Slum Act. The preliminary issue is decided in

favour of the Plaintiff and against the Defendants. This Court has jurisdiction to
entertain and try the present suit. The Notice of Motion may now be taken up for
hearing. S.O. to 27 November 2014.

                                               ig                                                       (S.C. Gupte, J.)
                                             
            
         






                                                                                                                                              

                                                                                                    ::: Downloaded on - 30/10/2014 23:48:09 :::
 

Rajendra Jonko vs The Superintendent Of on 25 November, 2011

Bombay High Court
Rajendra Jonko vs The Superintendent Of on 25 November, 2011
Bench: R. C. Chavan
                            1                    APEAL-270.01

        IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                           
                  APPELLATE JURISDICTION




                                   
             CRIMINAL APPEAL NO.270 OF 2001


     Rajendra Jonko,




                                  
     residing at Flat No.101,
     17/D MHADA Customs Colony,
     Adi S. Marg, Powai,




                           
     Mumbai-400 076.
                 ig                ....         Appellant
         - Versus -
     1. The Superintendent of
               
        Police, Central Bureau
        of Investigation,
        Anti Corruption Bureau,
      


        Tanna House, Nathalal
   



        Parekh Marg, Coloba,
        Mumbai-400 005.





     2. The State of Maharashtra   ....         Respondents


     S/Shri R.M. Agarwal, Senior Counsel with





     Prakash Naik for the Appellant.

     Shri Milind Sawant, Public Prosecutor
     for Respondent No.1-CBI.

     Ms P.P. Bhosale, Addl. Public Prosecutor,
     for Respondent No.2-State.




                                   ::: Downloaded on - 09/06/2013 17:57:04 :::
                                         2                             APEAL-270.01

                        CORAM : R.C. CHAVAN, J.




                                                                               
                        RESERVED ON              : SEPTEMBER 29, 2011




                                                       
                        PRONOUNCED ON: NOVEMBER 25, 2011

     JUDGMENT:

1. This appeal is directed against the

conviction of the appellant, an Assistant
Collector of
ig Central Excise, for offence
punishable under Section 12(2) r/w Section
13(1)(e) of the Prevention of Corruption Act,

1988 (for short, the PC Act, 1988 ) and
sentence of RI for 4 years with fine of
`5,000/- or in default further imprisonment for

6 months inflicted by the learned Special

Judge, Mumbai.

2. It was alleged that the appellant had
received towards pay and allowances from
15-11-1979 to 12-11-1987 a sum of `1,40,034.45,
interest from Banks amounting to `57,672.51 and

had borrowed `65,600/- from State Bank of
India. He thus had amount of `2,63,306.96
available to him. His expenses for the period
were quantified at `82,207.04 and thus was
likely to have saving to the tune of
`1,81,099.32. But as on 12-11-1987, the

::: Downloaded on – 09/06/2013 17:57:04 :::
3 APEAL-270.01

appellant was possessed of assets worth

`6,42,882.42/- and thus the assets were

disproportionate to the tune of `4,61,783.10 to
his known sources of income. These conclusions
were reached upon investigation which commenced

on receipt of information by PI Prabhakar
Shinde. On completion of investigation, papers
were sent to appropriate authority seeking

sanction to prosecute the appellant. Upon
receipt
before
of
the
ig sanction,
Special
charge-sheet
Court on
was
5-3-1990
filed
for

offence punishable under Section 5(2) r/w
Section 5(1)(e) of the Prevention of Corruption
Act, 1947 (for short, the PC Act, 1947 ) .

3. The appellant pleaded not guilty to
the charge of offence punishable under Section
5(2) r/w Section 5(1)(e) of the PC Act, 1947 on

28-11-1997. Since the appellant pleaded not
guilty, he was put on trial at which
prosecution examined in all 31 witnesses in its

attempt to bring home guilt of the accused. The
defence of the accused was that assets standing
in the names of his wife Nirmala, sisters Rani
and Munni and father were their own asset. He
did not know if they had any independent source
of income or not. The amounts were given by his
father. He had not taken loan of `65,600/- from

::: Downloaded on – 09/06/2013 17:57:04 :::
4 APEAL-270.01

State Bank and had not purchased cars or house.

He also filed a detailed written statement

explaining his assets. After considering the
evidence tendered, the learned Special Judge
held that even if income as suggested by the

appellant was taken into consideration, the
assets were disproportionate by `3,86,570/- to
the income of the appellant and therefore

convicted and sentenced the appellant as
mentioned

earlier.

appellant has preferred this appeal.

Aggrieved thereby the

4. The appeal was first heard and allowed
by Judgment dated 30-6-2004 by Hon’ble Shri

Justice D.G. Deshpande. The State challenged

the order before the Supreme Court. By its
Judgment dated 25-9-2006 the Supreme Court set
aside the Judgment of this Court and directed

that this Court shall decide the appeal on
merits and if this Court comes to the
conclusion that case for upholding the

conviction is made out, this Court shall
correct the error of the trial Court in handing
down conviction under Section 13 of the PC Act,
1988 and shall convict the appellant of offence
punishable under Section 5(2) r/w Section 5(1)

(e) of the PC Act, 1947. This is why the appeal
was reheard.

::: Downloaded on – 09/06/2013 17:57:04 :::

5 APEAL-270.01

5. I have heard the learned counsel for

the appellant and the learned PP for the CBI.
With the help of both the learned counsel, I
have gone through the evidence. In respect of

assets attributed to the appellant, the
evidence collected is as under:-





                                           
    Sr.     Nature of Asset        In the Names   Value Rs.         Evidence         Remarks
    No.                          ig     of            Ps

    1.    Debentures of Tata    Munni+Nirmala     30000.00       PW-2
          Chemicals             +Rani+Nirmala                    Yashodhara
                               
                                                                 Exs.23, 24

    2.    FDRs of Mazgaon Dock ?                  10000.00       PW-12
                                                                 Selvaraj M
                                                                 Ex.80
             


    3.    FDRs of Stock         2FDs Nirmala,     12000.00       PW-7       3
          



          Exchange              Rani, Munni                      Coutinho   persons
                                                                 Exs.49, 50 each

    4.    FDRs with Hindustan   Rani+Nirmala      10000.00       PW-13
          Construction Co.      Munni+Nirmala                    Kavita





          Ltd.                                                   Exs.82, 83

    5.    Debentures with       Rani & Nirmala    15000.00       PW-11      3x10x5
          Mahindra & Mahindra                                    Raghvachar
                                                                 i
                                                                 Exs.64 to





                                                                 68, 69, 73

    6.    CDRs of Indian Oil    Nirmala           20000.00       PW-14              (only
                                +Appellant,                      Vidyadhar          15000/-
                                Munni+Nirmala,                   Exs.86 to          ?)
                                Rani+Nirmala                     88




                                                        ::: Downloaded on - 09/06/2013 17:57:04 :::
                                               6                    APEAL-270.01

    7.    FDRs of J.K.          Nirmala &         12000.00    PW-1               Invest-




                                                                             
          Synthetic             Rajendra Jonko                Mahesh             ment by
                                                              Shah               cheque.
                                                              Exs.17 to          Source




                                                     
                                                              21                 not
                                                                                 traced.

    8.    FDRs with Hindustan   Munni, Rani,      20000.00    PW-6               4 FDs
          Petroleum             Nirmala,                      Salunke            each in




                                                    
                                Gunjan                        Exs.44-47          name of
                                (daughter)                                       three
                                                                                 persons
                                                                                 Nirmala
                                                                                 common




                                             
                                                                                 in all
                                                                                 FDs.

    9.    Debentures of Birla
          Jute Industries
                                
                                Gunjan+Nirmala
                                Munni+Nirmala
                                                  30000.00    PW-8
                                                              Gajanan
                                Nirmala+Rani                  Agrawal
                               
                                Rani+Nirmala                  Exs.
                                                              99-102.

    10.   FDRs/CTD Premier                        20000.00    PW-3 Roy
          Automobiles                 ?                       D Souza
             

                                                              Ex.26
          



    11.   Debentures Indian     Nirmala+Munni     30000.00    PW-10              75 each
          Hotels Co.            Munni+Nirmala                 Prabhakar          pair of
                                Gunjan+Nirmala                Phatak             holders
                                Rani+Nirmala                  Exs.59-62





    12.   FDRs of TELCO         Nirmala,          32000.00    PW-5 Navin 6 FDs
                                Rajendra,                     Kumar Exs. each in
                                Rani, Munni                   36 to 42   Joint
                                                                         name of
                                                                         two
                                                                         persons





                                                                         each

    13.   Debentures of         Nirmala, Rani,    4000.00     PW-9               10 each
          Reliance Ltd.         Gunjan,                       Padmakar
                                Jonko                         Exs.54-57




                                                     ::: Downloaded on - 09/06/2013 17:57:04 :::
                                          7                     APEAL-270.01

    14.   Bank balance       Rajendra,       34644.40     PW-4




                                                                         
                             Nirmala,                     Gopalan
                             Gunjan                       Aiyar Exs.
                                                          28-32.




                                                 
                                                          PW-21
                                                          Hiralal
                                                          Jain Ex.
                                                          108.




                                                
                                                          PW-22
                                                          Ramchandra
                                                          Exs.
                                                          110-112.




                                        
                                                          PW-23
                                                          Indrakant
                              ig                          Canara
                                                          Bank Exs.
                                                          114-114A.
                            
                                                          PW-26
                                                          Anant
                                                          Maliar
                                                          Central
                                                          Bank Ex.
             

                                                          125.
          



    15.   Two Cars           Nirmala         180038.00    PW-15              Loans
                             Munni                        Madan
                                                          Mairal
                                                          Exs.96,
                                                          97.





                                                          PW-19
                                                          Rajan
                                                          Masukar
                                                          Ex.104.

                                                          PW-20





                                                          Sanjay
                                                          Chavan Ex.
                                                          160.

    16.   National Savings                   82000.00     PW-15
          Cetificate                                      Madan
                                                          Mairal Ex.
                                                          91.

                                                          PW-16
                                                          Narayan




                                                 ::: Downloaded on - 09/06/2013 17:57:04 :::
                                                8                         APEAL-270.01

    17.   House at                                    49500.00      PW-22 Ram-




                                                                                   
          Chakradharpur                                             chandra
                                                                    Ex.
                                                                    133-136,




                                                           
                                                                    SBI.

                                                                    PW-25 K.C.
                                                                    Mishra
                                                                    Exs.122,




                                                          
                                                                    123 SBI.

                                                                    PW-28
                                                                    Sujit
                                                                    Moitra Ex.




                                              
                                                                    132 SBI.

    18.   Loan to Akundi          ig                  50500.00      -      -
          Sundaramma
    19.   Telephone Deposit                           1200.00
                                
                                                     642882.42

    20.   Gold earrings            Nirmal Jonko       6844.00       PW-8
          32.950 grams                                              Deepak Ex.
          21.984                                                    52
             
          



               In   addition        to   the       above     witnesses,               other
               witnesses examined are:





               PW-17       Dr. Saifee, the appellant s landlord at
                           Indore     who    states     that        the        appellant

paid rent @ Rs.700/- per month to him.

PW-24 Ram Raj Bharati, Under Secretary,
Government of India who proves sanction
to prosecute.

PW-27 Sunil Kumar of Biri Trading Company
about income of the appellant s father

::: Downloaded on – 09/06/2013 17:57:04 :::
9 APEAL-270.01

(Exhibit-130),

PW-29 PI P.B. Shinde, Investigating Officer.

PW-30 PI Raman Tyagi, Investigating Officer.

6. The learned counsel for the appellant
first submitted that the properties shown in

the names of the appellant’s father, wife or

termed as

sisters would have to be excluded from being
the appellant’s properties. He

submitted that the charge does not show that
the appellant was alleged to have held those
assets benami. Therefore, according to him,

since the charge does not show that the

properties in the name of his relations were in
fact owned by him, those properties ought to be
excluded and if they are so excluded, the

assets of the appellant are not at all
disproportionate to his known sources of
income. For this purpose, he relied on the

following Judgments-

7. In Jaydayal Poddar (Deceased) through
L.Rs. and another v. Mst. Bibi Hazra and
others, reported in AIR 1974 SC 171, the
Supreme Court was considering the question of
nature of onus and proof in respect of benami

::: Downloaded on – 09/06/2013 17:57:04 :::
10 APEAL-270.01

transactions in the context of provisions of

Section 54 of the Transfer of Property Act. In

para 6 of the Judgment, the Court held as
under:

…. The essence of a benami is the
intention of the party or parties
concerned; and not unoften such
intention is shrouded in a thick

veil which cannot be easily pierced
through. But such difficulties do

not relieve the person asserting the
transaction to be benami of any part
of the serious onus that rests on

him; nor justify the acceptance of
mere conjectures or surmises, as a
substitute for proof. The reason is
that a deed is a solemn document

prepared and executed after
considerable deliberation, and the

person expressly shown as the
purchaser in the deed, starts with
the initial presumption in his
favour that the apparent state of

affairs is the real state of
affairs. Though the question,
whether a particular sale is benami
or not, is largely one of fact, and
for determining this question, no

absolute formulae or acid test,
uniformly applicable in all
situations, can be laid down; yet in
weighing the probabilities and for
gathering the relevant indicia, the
courts are usually guided by these
circumstances: (1) the source from
which the purchase money came; (2)
the nature and possession of the
property, after the purchase; (3)
motive, if any, for giving the

::: Downloaded on – 09/06/2013 17:57:04 :::
11 APEAL-270.01

transaction a benami colour; (4) the

position of the parties and the
relationship, if any, between the

claimant and the alleged benamidar;
(5) the custody of the title-deeds
after the sale and (6) the conduct
of the parties concerned in dealing

with the property after the sale.
The above indicia are not exhaustive
and their efficacy varies according
to the facts of each case.

Nevertheless No.1, viz. the source

for determining whether the sale
standing in the name of one person,

is in reality for the benefit of
another.

This Judgment was followed up in Bhim Singh
(dead) by L.Rs. and another v. Kan Singh,

reported in AIR 1980 SC 727.

8. In Krishnanand Agnihotri v. State of
M.P., reported in AIR 1977 SC 796, the Supreme

Court considered the question of assets in the
context of provisions of Section 5 of the
Prevention of Corruption Act, 1947. The Court

was considering, amongst other things, whether
a sum of `11,180/- lying in fixed deposit with
Allahabad Bank, Varanasi, in the name of Shanti
Devi belonged to the appellant, a public
servant, or to Shanti Devi. In this context, in
para 26 the Court observed as under after
relying on the Judgment in Jaydayal Poddar s

::: Downloaded on – 09/06/2013 17:57:04 :::
12 APEAL-270.01

case (supra):

It is difficult to see how in the
face of this overwhelming evidence it
could be concluded that the sum of
Rupees 11,180/- lying in fixed

deposit in Shanti Devi’s name was an
asset belonging to the appellant. It
must be remembered that the fixed
deposit stood in the name of Shanti
Devi and the burden, therefore, lay

on the prosecution to show that
Shanti Devi was a benamidar of the

appellant. It is well settled that
the burden of showing that a
particular transaction is benami and

the appellant owner is not the real
owner always rests on the person
asserting it to be so and this burden
has to be strictly discharged by

adducing legal evidence of a definite
character which would either directly

prove the fact of benami or establish
circumstances unerringly and
reasonably raising an inference of
that fact. The essence of benami is

the intention of the parties and not
unoften, such intention is shrouded
in a thick veil which cannot be
easily pierced through. But such
difficulties do not relieve the

person asserting the transaction to
be benami of the serious onus that
rests on him, nor justify the
acceptance of mere conjectures or
surmises as a substitute for proof.
(Vide Jayadayal Poddar v. Mst. Bibi
Hazra,
(1974) 2 SCR 90 = (AIR 1974 SC

171). It is not enough merely to show
circumstances which might create
suspicion, because the court cannot

::: Downloaded on – 09/06/2013 17:57:04 :::
13 APEAL-270.01

decide on the basis of suspicion. It

has to act on legal grounds
established by evidence. Here, in the

present case, no evidence at all was
led on the side of the prosecution to
show that the monies lying in fixed
deposit in Shanti Devi’s name were

provided by the appellant and
howsoever strong may be the suspicion
of the court in this connection, it
cannot take the place of proof. It
must, therefore, be held that the

prosecution has failed to show that
the sum of Rs. 11,180/- lying in

fixed deposit in Shanti Devi’s name
belonged to the appellant.

This was followed up in P. Satyanarayan Murty
v. State of Andhra Pradesh,
reported in (1992)

4 SCC 39.

9. The learned counsel for the appellant
submitted, relying on these authorities, that

the difficulties of the prosecution in
establishing that a transaction was benami do
not relieve the prosecution of the onus to

prove that the transaction was benami and that
the Court cannot decide a case merely on the
basis of suspicion. The learned counsel,
therefore, submitted that the evidence tendered
by the prosecution falls far too short of the
standard of proof required to be tendered.

::: Downloaded on – 09/06/2013 17:57:04 :::

                                  14                        APEAL-270.01

     10.        He   further    submitted          that       since         the




                                                                     
     charge     does    not     mention       that        the        assets




                                             
     standing     in    the     name    of      the        appellant s

relations were held by the appellant benami in
the names of his relations, the evidence could

not at all be looked into and for this purpose
relied on a Judgment of the Supreme Court in
Shamsaheb M. Multtani v. State of Karnataka,

reported in 2001 SAR (Criminal) 196. The
Judgment was
igrendered in the
different offence. In that case, there was no
context of a

charge of offence punishable under Section 304-
B of the IPC and that the charge was only under
Section 302 of the IPC.

11. The learned PP for the CBI countered
by submitting that the charge categorically
mentions all these properties and the details

furnished with the charge-sheet also show names
of the persons who were shown to be the holders
of the assets concerned. He submitted that most

of the fixed deposit receipts or debentures are
either in the name of the appellant’s wife or
the appellant or the appellant and the
appellant’s wife together, or one or two of the
appellant’s sisters with the appellant’s wife
or the appellant’s daughter and the appellant’s
wife together, as indicated in the chart in the

::: Downloaded on – 09/06/2013 17:57:04 :::
15 APEAL-270.01

earlier part of this Judgment. He submitted

that the contention that the charge does not

mention that the properties were held benami,
therefore, has no substance. This charge
categorically lists the properties and alleges

that the appellant was possessed of those
assets. Therefore, mere absence of use of the
word benami would not matter. The learned PP

further rightly submitted that the crucial test

would be whether the persons concerned have any
independent source of income to have been able

to acquire the assets. He submitted that the
evidence would show all these assets were
acquired with the income of the appellant.

Therefore, this contention about failure to

mention that the appellant owned assets benami
in the names of his relations has to be
rejected.

12. The learned counsel for the appellant
next submitted that the assets standing in the

name of the relations were acquired by the
relations themselves and there is nothing to
show that they were acquired with the
appellant s funds. He pointed out that the
appellant’s father Birsingh Ho was a
respectable cultivator in Chakradharpur
District. Birsingh Ho s father Budhan Ho was in

::: Downloaded on – 09/06/2013 17:57:04 :::
16 APEAL-270.01

fact Mukhiya of the village. He submitted that

Birsingh was cultivating the land and was also

working as a part-time accountant with Biri
Trading Company and was not a biri worker.
Birsingh had two wives, having married the

second after the first wife died. The appellant
had Budhan Jonko and Sukhram Jonko as his real
brothers, Uday Jonko as his step-brother,

Savitri Jonko as his sister, Jamuna Jonko,

that

Munni Jonko and Rani Jonko as step-sisters. He
stated the appellant s father-in-law

Dharamdas Mundari was an Assistant Commssioner
of Sales Tax and retired as Additional
Secretary, Finance Ministry in the State

Government. The appellant married Nirmala, the

daughter of Dharamdas in 1981. Nirmala s uncles
also held big posts in Food Corporation of
India and as a Civil Surgeon. Therefore,

according to him, the family had sufficient
nucleus to provide for acquisition of assets in
the names of Rani and Munni, the appellant s

step-sisters and Nirmala, the appellant s wife,
coming from the appellant s father and father-
in-law. The learned counsel also pointed out
that there is nothing on the record to show
that the investments came from the appellant.

13. He relied on a Judgment of the Supreme

::: Downloaded on – 09/06/2013 17:57:04 :::
17 APEAL-270.01

Court in D.S.P. Chennai v. K. Inbasagaran,

reported 2006 Cri.L.J. 319, where the Court was

considering the assets standing in the name of
a public servant’s wife. In this context, the
following observations of the Court may be

usefully reproduced as under:

15. …. Therefore, the initial

burden was on the prosecution to
establish whether the accused has

acquired the property
disproportionate to his known source
of income or not. But at the same

time it has been held in a case of
State of M.P. Vs. Awadh Kishore
Gupta and Others reported in (2004)
1 SCC 691 that accused has to

account satisfactorily the money
received in his hand and satisfy the

court that his explanation was
worthy of acceptance. In order to
substantiate the plea taken by the
accused that all the moneys which

had been received belonged to his
wife and in support thereof he has
examined as many as 13 witnesses
including himself, his wife and his
son-in-law. D.W. 12 is the wife of

the accused. She has deposed that
the entire money belonged to her.

She has admitted the raid on her
house and she has also admitted that
she has amassed the wealth by
selling cycle rims and leather
products without any bill and out of
the money amassed by her she had
persuaded her husband to deposit the
same at various Banks. She has come
forward and admitted the recovery of

::: Downloaded on – 09/06/2013 17:57:04 :::
18 APEAL-270.01

the foreign exchange at her house

and she has accounted for the same.
She has also admitted the recovery

of the gold ornaments at her house
and she has explained that she has
purchased those gold ornaments. She
has also submitted that some real

estate was purchased out of self
earning as well as the loan from the
mother of the son-in-law and some
contribution was made by the son-in-
law and the son-in-law has also

admitted. Likewise, D.W.8 – her son-
in-law,ig Thiru S.Rajasankar also
appeared in the witness box and
admitted that he has also saved
certain foreign exchange when he had

gone on various visits abroad. He
has also admitted to have carried
some money to be deposited in the
Bank. The accused has also come

forward in the witness box as D.W.13
and has deposed that all the moneys

belonged to his wife and when he
came to know about the unaccounted
money at his house, he gave his
piece of mind to her. He has

admitted that on one or two
occasions money was carried by
himself to be deposited in the
account in Punjab National Bank and
some money was also deposited on

account of some of the members of
the family by P.W.8, S. Rajasankar,
son-in-law. Therefore, under these
circumstances, the respondent has
explained the possession of
unaccounted money.

16. …. It is true that the
prosecution in the present case has

::: Downloaded on – 09/06/2013 17:57:04 :::
19 APEAL-270.01

tried its best to lead the evidence

to show that all these moneys
belonged to the accused but when the

wife has fully owned the entire money
and the other wealth earned by her by
not showing in the Income-tax return
and she has accepted the whole

responsibilities, in that case, it is
very difficult to hold the accused
guilty of the charge. It is very
difficult to segregate that how much
of wealth belonged to the husband and

how much belonged to the wife. The
prosecution has not been able to lead

evidence to establish that some of
the money could be held in the hands
of the accused. In case of joint

possession it is very difficult when
one of the persons accepted the
entire responsibility. The wife of
the accused has not been prosecuted

and it is only the husband who has
been charged being the public

servant. In view of the explanation
given by the husband and when it has
been substantiated by the evidence of
the wife, the other witnesses who

have been produced on behalf of the
accused coupled with the fact that
the entire money has been treated in
the hands of the wife and she has
owned it and she has been assessed by

the Income-tax Department, it will
not be proper to hold the accused
guilty under the prevention of
Corruption Act as his explanation
appears to be plausible and
justifiable. The burden is on the
accused to offer plausible
explanation and in the present case,
he has satisfactorily explained that
the whole money which has been

::: Downloaded on – 09/06/2013 17:57:04 :::
20 APEAL-270.01

recovered from his house does not

belong to him and it belonged to his
wife. Therefore, he has

satisfactorily accounted for the
recovery of the unaccounted money.
Since the crucial question in this
case was of the possession and the

premises in question was jointly
shared by the wife and the husband
and the wife having accepted the
entire recovery at her hand, it will
not be proper to hold husband guilty.

Therefore, in these circumstances, we
are of the opinion that the view

taken by the High Court appears to be
justified and there are no compelling
circumstances to reverse the order of

acquittal. Hence, we do not find any
merit in this appeal and the same is
dismissed.

It may be seen from the above observations that

the wife of the public servant in that case had
a plausible explanation about the assets

standing in her name. Such is not the case of
the appellant’s wife.

14. The learned counsel for the appellant

submitted that the burden on the appellant can
be discharged with evidence which would be
enough to create a probability. He submitted
that the degree of burden of proof on the
appellant is not as high as that on the State.
For this purpose, he relied on a Judgment of
the Supreme Court in Trilok Chand Jain v. State

::: Downloaded on – 09/06/2013 17:57:04 :::
21 APEAL-270.01

of Delhi, reported in 1977 Cri.L.J. 254

wherein, in para 8, the Court held as under:

8. Section 4(1) of the
Prevention of Corruption Act reads:

“Wherein any trial of an
offence punishable under
section 161 or section 165 of

the Indian PenaI Code (or of an
offence referred to in clause

(a) or clause (b) of sub-

section (1) of section 5 of
this Act punishable under sub-

s. (2) thereof, it is proved
that an accused person has
accepted or obtained, or has
agreed to accept or attempt to

obtain, for himself or for any
other person, any gratification

(other than legal remuneration
or any valuable thing from any
person, it shall be presumed
unless the contrary is proved

that he accepted or obtained,
or agreed to accept or
attempted to obtain, that
gratification or that valuable
thing, as the case may be, as a

motive or reward such as is
mentioned in the said section
161 or, as the case may be,
without consideration or for a
consideration which he knows to
be inadequate.”

From a reading of the above
provision it is clear that its
operation, in terms, is confined to

::: Downloaded on – 09/06/2013 17:57:04 :::
22 APEAL-270.01

any trial of an offence punishable

under s. 161 or s. 165, Penal Code
or under clause (a) or (b) of s.

5(1) read with sub-section (2) of
that section of the Act. If at such
a trial, the prosecution proves that
the accused has accepted or obtained

gratification other than legal
remuneration, the court has to
presume the existence of the further
fact in support of the prosecution
case, viz., that the gratification

was accepted or obtained by the
accused as a motive or reward such

as mentioned in s. 161, Penal Code.
The presumption however, is not
absolute. It is rebuttable. The

accused can prove the contrary. The
quantum and the nature of proof
required to displace this
presumption may vary according to

the circumstances of each case. Such
proof may partake the shape of

defence evidence led by the accused,
or it may consist of circumstances
appearing in the prosecution
evidence itself, as a result of

cross-examination or otherwise. But
the degree and the character of the
burden of proof which s. 4(1) casts
on an accused person to rebut the
presumption raised thereunder,

cannot be equated with the degree
and character of proof which under
s. 101, Evidence Act rests on the
prosecution. While the mere
plausibility of an explanation given
by the accused in his examination
under s. 342, Cr.P.C. may not be
enough, the burden on him to negate
the presumption may stand
discharged, if the effect of the

::: Downloaded on – 09/06/2013 17:57:04 :::
23 APEAL-270.01

material brought on the record, in

its totality, renders the existence
of the fact presumed, improbable. In

other words, the accused may rebut
the presumption by showing a mere
preponderance of probability in his
favour; it is not necessary for him

lo establish his case beyond a
reasonable doubt – see Mahesh Prasad
Gupta v. State of Rajasthan, AIR

1974 SC 773.

15. Evenig this Court had held in N.P.
Lotlikar v. C.B.I. and
another, reported in
1993 Cri.L.J. 2051, that the accused needs to

establish only through preponderance of
probabilities that the defence is plausible.

There can be no doubt about this proposition.
But unfortunately the material produced by the

accused first, is restricted to his own
father’s income and properties, which is

rendered improbable by proof of the fact that
funds flowed, not from his father to him, but
from him to his father. Secondly, while the
appellant was keen to establish his father’s

sound financial position, when questioned about
assets in the names of his other relations, the
learned counsel submitted that it was for those
others to explain and that it was not necessary
for the appellant to furnish an explanation. I
have considered these contentions. As the
discussion to follow would show, the

::: Downloaded on – 09/06/2013 17:57:04 :::
24 APEAL-270.01

explanations furnished by the appellants are so

unreasonable and unbelievable that the learned

trial Judge could not but have rejected them.
The appellant had not even made a case of his
explanation being probable.

16. The learned PP submitted that the
appellant too could have shown that the source

of these investments in the names of Nirmala,

Munni, Rani and Gunjan were from the income of
Birchand Ho or Nirmala s father Dharamdas. The

learned PP submitted that Nirmala, Rani, Munni
or Gunjan are not shown to have any independent
source of income. The learned counsel for the

appellant submitted that it was not for the

appellant to show whether these persons had any
independent source of income or not. It would
be for the prosecution to establish that they

had no source of income. This contention could
have been accepted but for the fact that the
appellant took upon himself the task of

explaining as to how his father was a man of
means by submitting a written statement to
supplement his statement under Section 313 of
Criminal Procedure Code and also by annexing
supporting documents. Thus, if he could explain
the income of his father, there is no reason
why he could not similarly come out with an

::: Downloaded on – 09/06/2013 17:57:04 :::
25 APEAL-270.01

explanation about the income of Nirmala, Munni

and Rani, who are admittedly shown to be

persons without any income. Therefore, though
ideally the prosecution ought to have shown the
source from which money came for each of these

investments, failure to do so need not
necessarily result in rejecting the prosecution
case.

17.

not that

The learned PP submitted that it is
the prosecution has not shown the

source from where money for investments came.
He pointed out that the appellant s father
Birsingh Ho, who was supposed to be a man of

means and supposed to have funded acquisition

of properties by his daughters or daughter-in-
law, in fact did not have money for the
purchase of a house at Chakradharpur. He

pointed out that the appellant s father was in
fact working in a biri factory on meagre wages
as could be seen from the evidence of PW-29 PI

Shinde. PW-30 Raman Tyagi had also stated that
Birsingh Ho did not have much of income from
cultivation or other activities. The learned PP
also drew my attention to the evidence of PW-27
Sunil Kumar who was working for the Biri
Trading Company where the appellant s father
was employed. PW-27 Sunil Kumar had proved the

::: Downloaded on – 09/06/2013 17:57:04 :::
26 APEAL-270.01

statement of wages paid to Birsingh Ho from

time to time, which is at Exhibit-130, which

would show that the monthly wages paid to
Birsingh Ho ranged between `98.50 in 1970 to
`442/- in 1987. Therefore, according to the

learned PP, Birsingh Ho could not at all have
been in a position to finance the investments
by his daughters or daughter-in-law.

18.

had an

The learned counsel for the appellant
objection to receipt of evidence of

PW-30 Raman Tyagi. According to the learned
counsel, just as PW-29 PI Shinde had been
authorised by order dated 2-11-1987

(Exhibit-140) to investigate into the crime in

exercise of powers under Section 5-A(1) of the
PC Act, 1947, similar authorisation was not
issued in the name of Tyagi. Therefore, he

submitted that the entire investigation carried
out by Tyagi in Jharkhand, which includes
evidence collected about the properties of

Birsingh Ho and his income would have to be
excluded from consideration. The learned PP
submitted, and rightly in my view, that the
order at Exhibit-140 authorised PI Shinde to
conduct investigation with the assistance of
other officers as well. Therefore, it is not
that services of Raman Tyagi could not have

::: Downloaded on – 09/06/2013 17:57:04 :::
27 APEAL-270.01

been employed for the purpose of carrying out

investigation. The learned counsel for the

appellant relied on a Judgment of the Supreme
Court in State Inspector of Police,
Vishakhapatnam v. Surya Sankaram Karri,

reported in 2007 All MR (Cri.) 555 (SC) on the
question of unauthorised investigation. He
submitted that Tyagi had no authority to

investigate into the offences since there was

no order issued in the name of Tyagi. It has,
however, to be noticed that the Court observed

in para 21 of its Judgment as under:

21. It is true that only on the

basis of the illegal investigation a
proceeding may not be quashed unless

miscarriage of justice is shown, but,
in this case, as we have noticed
herein before, the respondent had
suffered miscarriage of justice as

the investigation made by P.W.41 was
not fair.

Therefore, the illegality of investigation per

se would be unhelpful. It is not shown that the
investigation carried out by Tyagi was not
fair. In any case, Raman Tyagi stated in his
deposition at Exhibit-145 that he had been
asked by the S.P. Shri A.L. Verma to gather
evidence about the income derived by the father
of the accused and in pursuance of those

::: Downloaded on – 09/06/2013 17:57:04 :::
28 APEAL-270.01

directions he had gone to Chakradharpur. Though

ideally Verma could have passed an order in the

name of Tyagi as well just as he had passed the
order in the name of PI Shinde, the absence of
such order on record in itself would not make

any material collected by Tyagi inadmissible in
evidence. In any case, the evidence of PW-30
Tyagi is negative, in the sense that he states

that Birsingh Ho did not own properties worth

biri factory

the name. The evidence about income from the
has been tendered by PW-29 PI

Shinde himself.

19. The learned PP further submitted that

if Birsingh Ho did have substantial income to

finance the investments of his daughters in
Mumbai, there would be no question of monies
flowing from Mumbai, where the appellant was

posted, to Jaraikela where Birsingh Ho was
residing. He pointed out that consideration for
purchase of a house at Chakradharpur from

Akundi Sundaramma and loan advanced to her, in
fact went from Mumbai to Chakradharpur by a
circuitous route which has been duly traced by
the prosection. Akundi Sundaramma was paid a
sum of `49,500/- by cheque dated 13-3-1985
which is marked as Exhibit-F in the evidence of
PW-28 Sujit Moitra, the Deputy Manager of State

::: Downloaded on – 09/06/2013 17:57:04 :::
29 APEAL-270.01

Bank of India, Jaraikela at the relevant time.

On 13-3-1985 and 14-3-1985, Nirmala, the

appellant s wife, had issued two cheques in
favour of Akundi Sundaramma for `49,500/- and
`50,500/- respectively. They were drawn on

Nirmala s account No.9897 from Chakradharpur
Branch. The amount came from a draft for
`1,00,000/- issued in the name of Birsingh Ho

and Nirmala Jonko on 22-2-1985 from the State

Bank of India, Fort, Bombay Branch, drawn on
State Bank of India Jaraikela Branch. This was

credited to account No.9897 from where the
consideration went for the purchase of property
of Akundi Sundaramma. The learned PP also

pointed out that it is not an isolated

transaction of money flowing from Mumbai to
Jharkhand. He pointed out that on the same
date, that is on 22-2-1985 another sum of

`20,000/- was remitted by drawing a draft in
the name of Birsingh Ho and Nirmala Jonko,
payable at Jaraikela Branch of State Bank of

India. This too was issued by State Bank of
India, Fort Banch, Mumbai. On the same day
another draft in the name of Nirmala Jonko and
Munni Jonko for `52,500/- was issued by the
State Bank of India, Fort-Bombay, payable at
State Bank of India, Jaraikela. All these
drafts have been identified in the course of

::: Downloaded on – 09/06/2013 17:57:04 :::
30 APEAL-270.01

evidence of PW-28 Sujit Moitra. The draft for

`52,500/- was credited in Nirmala and Munni s

account on 4-3-1985 vide extract of account
Exhibit-132. The learned PP, therefore, rightly
submitted that if Birsingh Ho was a man of

means, amounts should have been remitted by him
to his son at Mumbai rather than amounts
flowing from Mumbai for purchase of property at

Chakradharpur. Curiously remittances from
Mumbai have
ig been made in
which, in each case, includes the appellant s
favour of persons

wife. Therefore, the contention that the
persons in whose names the assets were acquired
had their own source of income or that

acquisition of assets was financed by the

appellant s father Birsingh Ho was rightly
rejected by the learned trial Judge as an eye-
wash.

20. It would be interesting to note as to
what the appellant states in his written

statement to supplement his statement under
Section 313 of Criminal Procedure Code. He
stated that his father was the richest person
from the village and therefore could educate
all his children. He has filed on record
certificates from Anchal Adhikari, Bandgaon and
Sarpanchs of Gram Panchayats, Otar and

::: Downloaded on – 09/06/2013 17:57:04 :::
31 APEAL-270.01

Buddigoda to support his claim about the status

of his father. The certificate of Anchal

Adhikari, Bandgaon shows that the appellant s
father owned land worth `90,000/-, possibly
3.12 hectares in area. The certificates of

Sarpanchs of the two Gram Panchayats are
similarly worded and both state that Birsingh
Ho had about 8 to 10 acres of cultivable land

from which he could save at least 80 quintals
of paddy

after the household
certificates show that one puda of paddy is
expenses. The

about 12 to 15 quintals and the yield was about
15 pudas, that is about 225 quintals of paddy.
It is not known whether 8 acres of land or 3

hectares of land could yield 225 quintals of

paddy per annum.

21. Considering all this, the evidence

tendered about investments was rightly accepted
by the learned trial Judge, who had in fact
given an allowance to the appellant by adding

to his salary income. The income which the
learned Judge took into consideration was
`2,69,688/- against `1,40,188/- from salary.
The learned Judge had also increased the likely
savings to `2,44,688/- from `1,58,188/- shown
in the charge. Even then the assets were found
to be disproportionate to the extent of

::: Downloaded on – 09/06/2013 17:57:04 :::
32 APEAL-270.01

`3,87,570/-.

22. The learned PP submitted that though
two cars are shown to have been purchased in
the names of the appellant’s sister and wife by

taking loan, since they had no income, it is
not clear as to how the loan was to be repaid.
The appellant had stated in his written

statement at Exhibit-152, in para 4, that the

amounts standing in the name of his wife in the
Nepean Sea Road Branch of State Bank of India

were amounts received by her as gifts from her
parents and the appellant’s father from time to
time, and therefore were stridhan. He submitted

that as per the traditions of the tribal

society of the accused, the accused was getting
25% agricultural produce of his family and that
he was getting grain and cereal from his native

place. Therefore, he had claimed that he could
save 70% of his income. The learned Judge too
had taken only 30% of the salary as the

household expenditure. Therefore, this argument
does not take the appellant s case further.

23. On the question of disproportionate
assets, the learned counsel for the appellant
referred to a Judgment of the Supreme Court in
State of Maharashtra v. Pollonji Darabshaw

::: Downloaded on – 09/06/2013 17:57:04 :::
33 APEAL-270.01

Daruwalla, reported in 1988 Cri.L.J. 183 = AIR

1988 SC 88. The observations of the Court in

para 13 of the Judgment may be usefully
reproduced as under:

13. However, these errors of
approach and of assumption and
inference in the judgment under
appeal do not, by themselves,

detract from the conclusion reached
by the High Court that, in the

ultimate analysis, the prosecution
has not established the case against
respondent beyond reasonable doubt.

The discussion of and the
conclusion reached on the contents

and parts (c) to (e) by the High
Court tends to show that the

disproportion of the assets in
relation to the known source of
income is such that respondent should
be given the benefit of doubt though

however, on a consideration of the
matter, if cannot be said that there
is no disproportion or even a
sizeable disproportion. For instance,
Shri Bhasme is right in his

contention that the acceptance by the
High Court of the case of the alleged
gift from the mother is wholly
unsupported by the evidence. There
are also other possible errors in the
calculations in regard to point(e).
The finding becomes inescapable that
the assets were in excess on the
known sources of income.

::: Downloaded on – 09/06/2013 17:57:04 :::

34 APEAL-270.01

But on the question whether

the extent of the disproportion is
such as to justify a conviction for

criminal misconduct under Section
5(1)(e) read with Section 5(2), we
think, we should not, in the
circumstances of the ease, interfere

with the verdict of the High Court
as, in our view, the difference would
be considerably reduced in the light
of the factors pointed out by the
High Court. A somewhat liberal view

requires to be taken of what
proportion of assets in excess of the

known sources of income constitutes
“disproportion” for purpose of
Section 5(1)(e) of the Act.

There can be no doubt about the proposition

that merely because the assets are in excess of

known sources of income, that in itself cannot
amount to criminal misconduct, and unless the
assets are shown to be disproportionate, the

accused s conviction should not follow. In the
case at hand, the disproportion held as proved
by the learned Judge is significant.

24. The learned counsel for the appellant
next submitted that the prosecution must fail
because it is not shown that sanction for
prosecution was accorded by authority competent
to do so. He relied on a Judgment of the
Supreme Court in Mohd. Iqbal Ahmed v. State of
Andhra Pradesh,
reported in 1979 Cri.L.J. Page

::: Downloaded on – 09/06/2013 17:57:04 :::
35 APEAL-270.01

633 = AIR 1979 SC 677 on the question of

sanction to prosecute. The observations of the

Supreme Court in para 3 of the Judgment may be
usefully reproduced as under:

…. It is incumbent on the
prosecution to prove that a valid
sanction has been granted by the
Sanctioning Authority after it was

satisfied that a case for sanction
has been made out constituting the

offence. This should be done in two
ways; either (1) by producing the
original sanction which itself

contains the facts constituting the
offence and the grounds of
satisfaction and (2) by adducing
evidence aliunde to show that the

facts placed before the Sanctioning
Authority and the satisfaction

arrived at by it. It is well settled
that any case instituted without a
proper sanction must fail because
this being a manifest difficult (sic-

defect) in the prosecution, the
entire proceedings are rendered void
ab initio.

25. In State of T.N. v. M.M. Rajendran,
reported in 1998 SCC (Cri.) 1000, on which
reliance was placed by the learned counsel for
the appellant, the Supreme Court was again
considering the question of a valid sanction
and observed as under:

::: Downloaded on – 09/06/2013 17:57:04 :::

36 APEAL-270.01

…. The High Court, has come to

the finding that all the relevant
materials including the statements

recorded by the Investigating Officer
had not been placed for consideration
by the City Commissioner of Police,
Madras because only a report of the

Vigilance Department was placed
before him. The High Court also came
to the finding that although the
Personal Assistant to the City
Commissioner of Police, Madras has

deposed in the case to substantiate
that proper sanction was accorded by

the City Commissioner of Police, the
witness has also stated that the
report even though a detailed one was

placed before the Commissioner by him
and on consideration of which the
Commissioner of Police had accorded
the sanction, it appears to us that

from such deposition, if cannot be
held conclusively that all the

relevant materials including the
statements recorded by the
Investigating Officer had been placed
before the Commissioner of Police. It

appears that the Commissioner of
Police had occasion to consider a
report of the Vigilance Department.
Even if such report is a detailed
one, such report cannot be held to be

the complete records required to be
considered for sanction on
application of mind to the relevant
materials on records. Therefore, it
cannot be held that the view taken by
the High Court that there was no
proper sanction in the instant case
is without any basis. ….

::: Downloaded on – 09/06/2013 17:57:04 :::

37 APEAL-270.01

26. The learned counsel for the appellant

drew my attention to the evidence of PW-24 Ram

Raj Bharti who was at the relevant time serving
in the Ministry of Finance. The sanction at
Exhibit-120 was signed by him as Under

Secretary to Government of India. He stated
that the President is the authority to sanction
prosecution in such cases. But the officers of

the level of Under Secretary are authorised to

pass such orders. He stated that all the papers
concerning the case of the appellant were sent

by CBI to him. He sent those papers to the
Minister with his short note and received the
papers back after the Minister’s approval. He

states that after going through the papers he

was satisfied that the officer had committed
offence and accordingly he accorded sanction
for prosecution. In cross-examination he stated

that before the papers came to him, they were
initially sent to the concerned Ministry but
could not tell the date on which they were sent

to the Ministry, or the date when the papers
were considered by the Ministry and then sent
to him. He denied the suggestion that while
according sanction he took report of the CBI to
be truthful, implying that he had applied his
mind to the material.

::: Downloaded on – 09/06/2013 17:57:04 :::

38 APEAL-270.01

27. The learned counsel for the appellant

submitted that under the Rules of Business of

Government of India, the Department, which is
the cadre controlling authority, and not a
particular officer of that Department, is the

authority competent to accord sanction. There
could be no doubt that Department would be
sanctioning prosecution. But since the

Department functions through individuals,
approval by
ig the Minister
Department should be enough to indicate that
who heads the

the Department had authorised the prosecution
of the appellant. The hierarchy in the
Department obtained by the appellant by filing

a query under the Right to Information Act

which he has made available for my perusal,
does not show that the Under Secretary was not
authorised to issue sanction order. Therefore,

reliance on the Judgments of the Supreme Court
in the State of Rajasthan v. Dr. A.K. Datta,
reported in AIR 1981 SC 20 and Parmanand Dass

v. State of Andhra Pradesh, reported in 1978
Cri.L.J. 1802 = AIR 1978 SC 1745, which deal
with the factual question as to who was the
sanctioning authority in those cases is
unhelpful. For the same reason, it may not be
necessary to discuss the Judgment of this Court
in Pravin Kumar v. The State, reported in 2005

::: Downloaded on – 09/06/2013 17:57:04 :::
39 APEAL-270.01

Cri.L.J. 2714. There is nothing to show that

there is any defect in the sanction and

therefore the objections on this count have to
be rejected.

28. The learned counsel also submitted
that the sentence inflicted upon the appellant
is unduly harsh and since it pertains to

incident 24 years ago, at this point of time

maintaining that sentence would be unjust. The
learned trial Judge has considered this aspect

as well in para 24 of his Judgment and has
rightly held that delays caused due to the
system cannot work to the advantage of the

appellant who should have been served with just

dessert long ago.

29. In view of the above, the appeal is

dismissed. However, the order convicting the
appellant is modified and the conviction of the
appellant for the offence punishable under

Section 13(2) r/w Section 13(1)(e) of the PC
Act, 1988 is altered to that for the offence
punishable under Section 5(2) r/w Section 5(1)

(e) of the PC Act, 1947. The appellant shall
surrender to his bail within a period of four
weeks to suffer his sentence and if he does
not, the learned trial Judge shall have him

::: Downloaded on – 09/06/2013 17:57:04 :::
40 APEAL-270.01

arrested and committed to prison.

Sd/-

(R.C. CHAVAN, J.)

::: Downloaded on – 09/06/2013 17:57:04 :::

Shri D.R.Bondre vs The State Of Maharashtra And Ors on 22 November, 2011

Bombay High Court
Shri D.R.Bondre vs The State Of Maharashtra And Ors on 22 November, 2011
Bench: D.B.Bhosale, K. K. Tated
    ttm                                  1                                wp1499-97.doc

                IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                         CIVIL APPELLATE JURISDICTION




                                                                            
                        WRIT PETITION NO.1499 OF 1997




                                                    
    Shri D.R.Bondre                                    .. Petitioner
          Vs.
    The State of Maharashtra and Ors.                  .. Respondents




                                                   
    Mr.P.P.Chavan for the petitioner




                                       
    Mr.C.R.Sonawane, A.G.P. for respondent no.1 and 2
                         
    Mr.R.S.Khadapkar for respondent no.3
                        
                             CORAM       : D.B.BHOSALE & K.K. TATED, JJ.

DATE : 22nd NOVEMBER, 2011.

ORAL JUDGMENT (PER K.K.TATED, J):

1. Heard the learned counsel for the parties.

2. By this petition, under Articles 226 and 227 of the Constitution of

India, petitioner challenges two circulars dated 14.06.1994 and 07.10.1994

issued by the Government of Maharashtra regarding the service conditions

of Librarians.

A few facts of the matter are as under:

3. The petitioner joined as Librarian with G.K.Gokhale College, Kolhapur

respondent no.4 with effect from 1st May, 1961 and worked for more than

::: Downloaded on – 09/06/2013 17:56:25 :::
ttm 2 wp1499-97.doc

25 years as Librarian and retired from the same College. The pay scale of

Librarians and the Directors of Physical Education were on par with the

Lecturers. The revisions were effected during the year 1960-65. The

University Grant Commission appointed an independent committee to

recommend the scales of pay for Librarians and Directors of Physical

Education. Both the Committees unanimously recommended that the

Librarians and the Directors of Physical Education scales of pay ought to

have been on par with that of the Lecturers. The said situation continued

till 1975. Thereafter, the parity of pay scales between the

Librarians/Directors of Physical Education and the Lecturers was disturbed

and while the Lecturers were placed in the pay scale of Rs.700-1600

irrespective of their qualification and allowed 5-8 years to improve their

qualification and the Librarians/Directors of Physical Education were

placed in the pay scale of Rs.500-900, though in the most cases, they were

better qualified than the Lecturers. By circular dated 25.10.1977, the

respondents increased the qualifications of the Librarians retrospectively but

did not provide them time or facility to improve their qualifications. Later

on, the respondents issued circular, and thereby relaxed the qualifications

in respect of the Librarians appointed prior to the year 1975, but provided

that their services prior to the year 1973 would not be counted for any

purpose. Because of these circulars, the petitioner was getting less pay.

::: Downloaded on – 09/06/2013 17:56:25 :::

ttm 3 wp1499-97.doc

They also affected his retirement benefits adversely. Therefore, the present

petition for getting equal pay on the basis of pay scale of Lecturers.

4. The learned counsel for the petitioner submitted that the petitioner

being qualified under the Rules at the time of the petitioner’s appointment

cannot be said to be not qualified for higher pay scale vide circulars issued

by respondent nos.1 to 3 increasing eligibility/qualification with

retrospective effect. He further invited our attention to the orders dated

17th October, 2001 in Writ Petition No.988 of 1996 passed by Division Bench

consisting of Justice R.M.Lodha, (as he then was) and Smt.Justice Nishita

Mhatre, and 8th January, 2004 in Writ Petition No.733 of 1997 passed by

Division Bench consisting of Justice H.L.Gokhale (as he then was) and

Justice F.I.Rebello, (as he then was) and submit that the Writ Petition can

also be disposed of in terms of the said order.

5. The learned A.G.P. appearing for respondent nos.1 and 2 and counsel

appearing for respondent no.3 have no objection for disposing of this Writ

Petition in terms of the order dated 8.1.2004 in Writ Petition No.773 of

1997. In terms of the order dt.8.1.2004 passed in the Writ Petition No.773

of 1997, the following order is passed:

The petitioner would be entitled to be placed in the revised

scale of Rs.700-40-1100-60-1600 with effect from 1st April,

::: Downloaded on – 09/06/2013 17:56:25 :::
ttm 4 wp1499-97.doc

1980 and thereafter, from 1st April, 1986 in the revised pay

scale of 3700-125-4950-150-5700. The respondents are

directed to pay to the petitioner the back wages along with all

the consequential benefits after proper fitment within a period

of six months from today. In the event, the payment is not

made within six months from today, the petitioner would be

entitled to interest at the rate of 9% per annum from the date

of the judgment till the date of final payment.

6. Rule made absolute accordingly. There shall be no order as to costs.

          (K.K. TATED, J.)                               (D.B. BHOSALE, J.)
   






                                                      ::: Downloaded on - 09/06/2013 17:56:25 :::
 

Vaishali Abhay Mandle vs Sakharam Vithal Mandle on 17 November, 2011

Bombay High Court
Vaishali Abhay Mandle vs Sakharam Vithal Mandle on 17 November, 2011
Bench: S. S. Shinde
                        1               wp2770.11

                                           
          IN  THE HIGH COURT OF JUDICATURE AT BOMBAY 
                     BENCH AT AURANGABAD




                                                              
               WRIT PETITION NO. 2770 OF 2011




                                      
     1.   Vaishali Abhay Mandle,
          Age: 40 years, Occ: Household
          and Service,




                                     
     2.   Ashutosh Abhay Mandle,
          Age: 15 years (Minor),
          Occ: Education, under
          Guardianship of her mother,




                           
          petitioner No.1 herein, namely
          Vaishali Abhay Mandle.

     3.
                 
          Sangita Raosaheb Mandle (died),
          Age: 35 years,  Occ: Household,
                
     4.   Rishikesh Raosaheb Mandle,
          Age: 15 years (Minor),  
          Occ: Education, under Guardianship
          of petitioner No.1 herein.
      


     5.   Sau. Nanda Baban Mandle,
   



          Age: 31 years, Occ: Household,

     6.   Rohan Baban Mandle,
          Age: 10 years (Minor),  





          Occ: Education, under Guardianship
          of mother petitioner No.5 herein,
          namely Sau. Nanda Baban Mandle.

     7.   Kiran Baban Mandle,
          Age: 8 years (Minor),  





          Occ: Education, under Guardianship
          of mother petitioner No.5 herein,
          namely Sau. Nanda Baban Mandle.

          All above R/o. Kamargaon,
          Tal. & Dist. Ahmednagar.        ...PETITIONERS 




                                      ::: Downloaded on - 09/06/2013 17:55:52 :::
                         2               wp2770.11

            VERSUS             

     1.   Sakharam Vithal Mandle,




                                                            
          Age: 47 years, Occ: Labour,
          R/o. Kamargaon,
          Tq. & Dist. Ahmednagar.




                                    
     2.   Abhay Vithal Mandle,
          Age: 44 years, Occ: Labour,
          R/o. as above.




                                   
     3.   Raosaheb Vithal Mandle,
          Age: 41 years, Occ: Labour,
          R/o. as above.




                           
     4.   Baban Vithal Mandle,
          Age: 59 years, Occ: Labour,
                 
          R/o. as above.

     5.   Satish Chandmal Chopda,
                
          Age: 48 years, Occ: Business,
          R/o. Ramchandra Khunt,
          Ahmednagar.
      

     6.   Hiralal Madhav Thokal,
          Age:  years, Occ: Agri. & Business,
   



          R/o. Kamargaon, 
          Tal. & Dist. Ahmednagar.        ...RESPONDENTS





                          ...
     Mr. Vishal S. Badakh, Advocate for petitioners.
     Mr. Parikshit P. Dawalkar, Advocate for respondent 
     No.5.
     Respondent Nos.1 to 4 & 6 served.
                          ...





         
                            CORAM: S.S. SHINDE, J.

DATE : 17TH NOVEMBER, 2011

::: Downloaded on – 09/06/2013 17:55:52 :::
3 wp2770.11

ORAL JUDGMENT :

. Rule. Rule made returnable forthwith.

Heard finally with the consent of parties.

2. Brief facts as disclosed in the writ

petition are as under :

. Petitioner No. 1 is wife and petitioner

No.2 is son of respondent No.2. Petitioner Nos. 3

and 4 are wife and son of respondent No.3.

Petitioner Nos. 5 and 6 are wife and son of

respondent No.4. Respondent Nos. 5 and 6 have

purchased the suit property from respondent Nos. 1

to 4. It is the case of the petitioners that,

respondent Nos. 1 to 4 sold out the suit property

to respondent No.5, who is not agriculturist. Said

property is sold on 19-12-1995 and 15-11-1997.

3. The petitioners herein instituted Special

Civil Suit No.97 of 2008 before the Civil Judge,

Senior Division, Ahmednagar against the

::: Downloaded on – 09/06/2013 17:55:52 :::
4 wp2770.11

respondents for partition, separate possession and

declaration that the sale deeds dated 19-12-1995

and 15-11-1997 executed by respondent Nos. 1 to 4

in favour of respondent Nos. 5 and 6 are null,

void and not binding upon the share of the

plaintiffs-petitioners with further relief of

injunction against respondent Nos. 5 and 6.

. In response to the suit summons,

defendants appeared in the matter and filed

Written Statement denying claim/contentions of the

plaintiffs-petitioners and accordingly, issues

came to be framed at Exhibit-22.

4. On 08-12-2010 the petitioners herein

filed application at Exhibit-47 praying therein to

refer the matter to competent authority to decide

the issue as to “whether respondent No.5 is

agriculturist or not?’ contending that respondent

No.5 is not agriculturist in view of Section 63 of

the Bombay Tenancy and Agricultural Lands Act,1948

(for short, “said Act”) and respondent No. 5

::: Downloaded on – 09/06/2013 17:55:52 :::
5 wp2770.11

cannot purchase the agricultural land and

therefore under Section 85A of the said Act, issue

has to be referred to the competent authority to

decide the same.

. Respondent No. 5 filed his Say to the

said application. On 14-12-2010 learned Civil

Judge, Senior Division, Ahmednagar was pleased to

reject the said application. Hence this writ

petition.

5. Learned Counsel appearing for the

petitioners invited my attention to the provisions

of Section 63 and also Section 85A of the Bombay

Tenancy and Agricultural Lands Act, 1948 and

submitted that, in the light of averments in

para-5 of the plaint, it was incumbent upon the

concerned Court to frame issue with respect to

“whether respondent No.5 is an agriculturist or

not?” and further to refer the said issue to the

Revenue Authority i.e. Tahsildar for inquiry.

However, the mandate of provisions of Section 63

::: Downloaded on – 09/06/2013 17:55:52 :::
6 wp2770.11

and 85A of the said Act has not been followed by

the concerned Court. Therefore, the Counsel for

petitioners would submit that, this writ petition

may be allowed.

6. On the other hand, learned Counsel

appearing for the respondents submits that, the

proviso to Section 63 of the said Act enables the

purchaser to seek permission from the competent

officer and then enter into the transaction.

However, the Counsel for the respondents is not

able to inform this Court that whether such

permission has been obtained by respondent No.5

before entering into transaction. Learned Counsel

further submits that, this Court may not interfere

in the impugned order.

7. I have given due consideration to the

rival submissions. At the outset, it would be

relevant to reproduce herein-below the provisions

of Section 63 and 85A of the said Act.

::: Downloaded on – 09/06/2013 17:55:52 :::

7 wp2770.11

“63. Transfers to non-agriculturists
barred.–(1) Save as provided in this

Act-

(a) no sale (including sales in execution
of a decree of a Civil Court or for
recovery of arrears of land revenue or

for sums recoverable as arrears of land
revenue), gift, exchange or lease of any
land or interest therein, or

(b) no mortgage of any land or interest
therein, in which the possession of the

mortgaged property is delivered to the
mortgagee,

shall be valid in favour of person who
is not an agriculturist (or who being an

agriculturist (will after such sale,
gift, exchange,lease or mortgage, hold

land [exceeding the ceiling area0
determined under the Maharashtra
Agricultural Lands (Ceiling on Holdings)
Act, 1961 9such permission shall not be

granted, where land is being sold to a
person who is not an agriculturist for
agricultural purposes, if the annual
income of such person from other sources
is Rs.12,000 or more) or who is not an

::: Downloaded on – 09/06/2013 17:55:52 :::
8 wp2770.11

agricultural labourer;

Provided that the Collector or an
officer authorised by the (State)

Government in this behalf may grant
permission for such sale, gift, exchange,
lease or mortgage, on such conditions as

may be prescribed.

(Explanation.- For the purpose of

this sub-section the expression

“agriculturist” includes any person who
as a result of the acquisition of his

land for any public purpose has been
rendered landless for a period not
exceeding ten years from the date of

possession of his land is taken for such
acquisition).

[(1A) Where any condition subject to

which permission to transfer was granted
is contravened then the land in respect
of which such permission was granted
shall be liable to be forfeited in

accordance with the provisions of section
84 CC.

(1B) Where permission is granted to
any transfer to land under sub-section

::: Downloaded on – 09/06/2013 17:55:52 :::
9 wp2770.11

(1) any subsequent transfer of such land
shall also be subject to the provisions

of sub-section (1)]

(2) Nothing in this section shall be
deemed to prohibit the sale, gift,
exchange or lease of a dwelling house or

the site thereof or any land appurtenant
to it in favour of an agricultural
labourer or an artisan [or a person

carrying on any allied pursuit.]

[(3) Nothing in this section shall

apply or be deemed to have supplied to a
mortgage of any land or interest therein
effected in favour of a co-operative

society as security for the loan advanced
by such society [ or any transfer

declared to be a mortgage by a Court
under section 24 of the Bombay

Agricultural Debtors’ Relief Act, 1947.]]

[(4) Nothing in section 63A shall
apply to any sale made under sub-section

(1).]”

“85A. Suits involving issues required
to be decided under this Act.- (1) If any

::: Downloaded on – 09/06/2013 17:55:52 :::
10 wp2770.11

suit instituted in any Civil Court
involves any issues which are required to

be settled, decided or dealt with by any
authority competent to settle, decide or

deal with such issues under this Act
(hereinafter referred to as the “competent
authority”) the Civil Court shall stay the

suit and refer such issues to such
competent authority for determination.

(2) On receipt of such reference from

the Civil Court, the competent authority
shall deal with an decide such issue in

accordance with the provisions of this Act
and shall communicate its decision to the
Civil Court and such Court shall thereupon

dispose of the suit in accordance with the
procedure applicable thereto.

Explanation.- For the purpose of this

section a Civil Court shall include a
Mamlatdar’s Court constituted under the
Mamlatdar’s Courts Act,1906.]”

8. A bare perusal of Section 63 of the said

Act would make it abundantly clear that, buyer

should be an agriculturist. Therefore, in the

::: Downloaded on – 09/06/2013 17:55:52 :::
11 wp2770.11

light of averments in Para-5 of the plaint, in all

fairness, the application of the petitioners

should have been allowed by the trial Court. The

point raised by the petitioners goes to the root

of the matter and therefore, such issue become

important in the facts and circumstances of this

case.

9. In the light of what is stated

hereinabove, Writ Petition deserves to be allowed.

Accordingly, impugned order is set aside. 2nd

Joint Civil Judge, Senior Division, Ahmednagar is

directed to frame the issue in respect of “whether

respondent No.5 is an agriculturist or not?” and

after hearing the respondents will consider the

prayer of the petitioners to refer it to the

Tahsildar for inquiry as provided under

Section 85A of the said Act. Writ Petition is

allowed to the above extent and stands disposed

of. Rule made absolute as indicated above.

sd/-

[S.S. SHINDE, J.]
sut/NOV11

::: Downloaded on – 09/06/2013 17:55:52 :::

Age: About 60 vs Shri Bhagirath R. Tapadiya on 14 November, 2011

Bombay High Court
Age: About 60 vs Shri Bhagirath R. Tapadiya on 14 November, 2011
Bench: G. S. Godbole
                                                -1-                               sa-100-2000


    srj
                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                     
                             CIVIL APPELLATE JURISDICTION




                                                             
                                SECOND APPEAL NO.100 OF 2000
                                             WITH
                              CIVIL APPLICATION NO.1244 OF 2011




                                                            
          1     Smt. Yamunabai Dhankude                 ]
                Age: about 60, Occu: household          ]
          2     Sou. Kondabai Baburao Sakore            ]




                                                 
                Age: about 36, Occu: household          ]
          3     Shri Dashrath Chabaji Dhankude          ]

          4
                                 
                Age: about 60, Occu: Business
                Shri Ramdas Chabaji Dhankude
                                                        ]
                                                        ]
                Age: about 32, Occ: Advocate            ]
                All R/1t. 1053, Gokhale Road,           ]
                                
                "Matruda" Building, Pune 411 016        ]      ..       Appellants

                       V/s.
             


          1         Shri Raosaheb Mohanlal Chimanlal ]
                    Maniyar Trust, having its registered ]
          



                    at 1-A, CTS No.1698, Homeguard  ]
                    Building Shivajinagar, Pune 411 005. ]
                    through its trustees:-               ]
                    1. Shri Bhagirath R. Tapadiya        ]





                        Age: Adult, R/at. "Mathoshri",   ]
                        11/7, Erandwana Karve Road,      ]
                        Pune 411 004.                    ]
                    2. Shri Rajendra R. Mantri           ]
                        Age: Adult, R/at. 304, White     ]





                        House, 1482, Sadashiv Peth,      ]
                        Pune 411 030.                    ]
                    3. Shri Vijay S. Mundada             ]
                        Age: Adult, R/at. 118-B, Main    ]
                        Prabhat Road, Near Canol,        ]
                        Pune 411 004.                    ]
                    4. Sou. Dr. Sunanda S. Rathi         ]
                        Age: Adult, R/at. "Chiranjeev"   ]
                        1107, Shukrawar Peth,  Sathe     ]




                                                             ::: Downloaded on - 09/06/2013 17:55:01 :::
                                             -2-                                 sa-100-2000


              Colony, Pune 411 002.                   ]
          5. Shri Chandrakant N. Daga                 ]




                                                                                   
              Age: Adult, R/at. Post Karjat,          ]
              Tal.: District - Raigad.                ]
          6. Shri Omprakash D. Malpani                ]




                                                           
              Age: Adult, R/at. At Post               ]
              Sangamner, Tal.: District-              ]
              Ahmednagar.                             ]      Respondents.




                                                          
    Mr. R. M. Pethe,for the Appellants
    Mr. Rajesh Datar, for the Respondents.




                                             
                             ig        CORAM               :  G.S.GODBOLE,J.
                                       RESERVED ON        : 4th OCTOBER, 2011
                                       PRONOUNCED ON  :14th NOVEMBER, 2011. 
                           
    JUDGMENT:-


    1            Pursuant   to   the   earlier   order   dated   27th  September,   2011, 
       


since the Appeal involved a short question of law, it was directed to be

heard for final hearing. Accordingly, I have heard the learned Advocates

finally on 4th October, 2011 and the Judgment was reserved.

2 The facts are not in dispute and are very brief. The

Respondents filed RCS No.1002 of 1998 against the Appellants in the

Civil Court at Pune for permanent injunction from disturbing the

possession of the Plaintiffs- Trustees over the suit property. The averments

shows that the Plaintiffs are the trustees of a Public Charitable Trust,

registered under the Bombay Public Trusts Act, 1950. The suit sought

::: Downloaded on – 09/06/2013 17:55:01 :::

-3- sa-100-2000

relief against Defendants on the ground that the Defendants were

unlawfully trying to dispossess the Plaintiffs and were disturbing the

possession of the plaintiffs trust, through its trustees.

3 In this suit, an application for rejection of plaint was filed by

the Defendants below Exhibit 26 on the ground that since the trust is

registered under Bombay Public Trusts Act, 1950, it was essential to

obtain permission of the Charity Commissioner under Section 51 of the

said Act and since said permission was not obtained, plaint was liable to

be rejected. Relying on the Judgment of the Supreme Court in the case of

Shree Gollaleshwar Dev and others v/s. Gangawwa Kom Shantayya Math

and others, reported in AIR 1986- SCC-231a and the Judgment of Single

Judge of this Court in the case of Leelavati w/o. Vasantrao Pingle and

another v/s. Dattatraya D. Kavishar and other, reported in 1988 (2), Bom.

C.R.429,b the learned Joint C. J. J. D. Pune had allowed the said

application and rejected the plaint. Aggrieved by Judgment and Order of

rejection of plaint which amounts to a decree under Section 2(2) of the

Code of Civil Procedure, 1908, the original Plaintiffs filed Civil Appeal

No.1 of 1998. By the impugned Judgment and Order dated 15th

September, 1999 the learned 3rd ADJ, Pune allowed the said appeal, order

a AIR 1986- SC-231

b 1988 (2), Bom. C.R.429

::: Downloaded on – 09/06/2013 17:55:01 :::

-4- sa-100-2000

of rejection of plaint was set aside and the application Exhibit 26 was

dismissed.

4 By order dated 9th February, 2000, Second Appeal has been

admitted by learned Single Judge (Coram: D. G. Deshpande,J.), and has

passed the following order:-

” Heard.

In view of the question raised, Appeal is admitted.”

5 It is thus clear that no substantial question of law was framed

as required by section 100 of the Code of Civil Procedure, 1908.

6 In view of this, I had indicated to the learned Advocates that

only one substantial question of law was being framed and the Advocates

have advanced their submissions on that question of law which is as

under:-

(a) Whether, considering the averments made in the plaint

where the Plaintiffs claim to be trustees of a Public Charitable

Trust registered under the Bombay Public Trusts Act, 1950 and

the nature of relief claimed in the suit, it was necessary to

obtain prior permission of the Charity Commissioner under

::: Downloaded on – 09/06/2013 17:55:01 :::

-5- sa-100-2000

Section 51 of the said Act ?

7 I have heard Mr. Pethe, appearing for the Appellants and

Mr. Datar for the Respondents. Mr. Pethe advanced the following

submissions:-

(a) Relying on the Judgment of learned Single Judge (Coram: H.

W. Dhabe J.) in the case of Vidarbha Kshtriya Mali Shikshan Sanstha v/s.

Mahatma Fuley Shikshan Samiti, Amravati, 1986 Mh. L. J.-773.c It was

submitted that considering the nature of controversy and averments made

in the plaint, the suit was governed by Section 50 of the Act and, hence,

permission was obligatory.

(b) That the property was allegedly claimed to be trust property

and hence, suit squarely falls under Section 50 of the said Act. He also

relied upon the Judgment of the learned Single Judge (Coram: A. V.

Mohta J.) in the case of Surayya Afzal Khan v/s. Raza Shah Fakir Takiya,

reported in 2006 (Supp.) Bom. C. R. 670.d Mr. Pethe also relied upon the

observations in the Judgment of Division Bench (Mr. Justice Patkar and

Mr. Justice Barlee), in Kashinath Mahadev Mahajan v/s. Gangubai Keshav

c 1986 Mh. L. J.-773

d 2006(Supp.)Bom. C. R. 670

::: Downloaded on – 09/06/2013 17:55:01 :::

-6- sa-100-2000

Nagarkar Volume- XXXII, Bombay Law Reporter, 1687.e Mr. Pethe also

relied upon the Judgment of learned Single Judge (Coram: B. G.Deo,J.) in

the case of Leelavati w/o. Vasantrao Pingle (supra) and submitted that the

Appeal deserves to be allowed.

8 On the other hand, Mr. Datar relied upon the Judgment of the

Supreme Court in the case of Shree Gollaleshwar Dev and others (supra).

He also relied upon the Judgment of the Division Bench of this Court

(Coram: M. L. Pendse and S. H. Kapadia, JJ) in the case of Amirchand

Tulsiram Gupta and others v/s. Vasant Dhanaji Patil and others, reported

in 1992 Mh. L.J. 275:1992(2) Bom. C. R. 22f and particularly observations

made in paragraphs 6 and 7. Reliance was also placed on the Judgment

of the Supreme Court in the case of Church of North India v/s. Lavajibhai

Ratanjibhai and Others, reported in (2005) 10 SCC-760g. The term

“Court” is defined under Section 2(3) of the BPT Act, 1950 and the term

“persons having interest” is defined under Section 2(10) of the said Act

which reads thus:-

“2. Definitions:- In this Act unless there is anything repugnant in

the subject or context,-

e Volume- XXXII, Bombay Law Reporter, 1687

f 1992 Mh. L. J. 275:1992(2) Bom. C. R. 22
g (2005) 10 SCC-760

::: Downloaded on – 09/06/2013 17:55:01 :::

-7- sa-100-2000

[10] “person having interest” [includes]

(a) in the case of a temple, person who is entitled to attend at
or is in the habit of attending the performance of worship or
service in the temple, or who is entitled to partake or is in that

habit of partaking in the distribution of gifts thereof,

(b) in the case of a math, a disciple of the math or a person of
the religious persuasion to which the main belongs,

(c) in the case of a wakf, a person who if entitled to receive

any pecuniary or other benefit from the wakf and includes a
person who has right to worship or to perform any religious rite
in a mosque, idgah, imambara, dargah, maqbara or other
religious institution connected with the wakf or to participate in

any religious or charitable institution under the wakf,

(d) in the case of a society registered under the Societies

Registration Act, 1860 (XXI of 1860), any member or such
society, and

(e) in the case of any other public trust [any trustee or

beneficiary]

10 Sections 50 and 51 of the said Act read thus:-

50. Suit by or against or relating to public trusts or trustees or others

– In any case,

(i) where is alleged that there is a breach of a public trust,

negligence,misapplication or misconduct on the part of a
trustee or trustees,

(ii) where a direction or decree is required to recover the
possession of or to follow a property belonging or alleged to be
belonging to a public trust or the proceeds thereof or for an

account of such property or proceeds from a trustee, ex-trustee,
alienee, trespasser or any other person including a person
holding adversely to the public trust but not a tenant or
licensee,

(iii) Where the direction of the Court is deemed necessary
for the administration of any public trust, or

(iv) for any declaration or injunction in favour of or against a

::: Downloaded on – 09/06/2013 17:55:01 :::

-8- sa-100-2000

public trust or trustees or beneficiary thereof,

the Charity Commissioner after making such enquiry as he thinks
necessary, or two or more persons having an interest in case the suit is

under sub-clauses (i) to (iii), or one or more such persons in case the suit
is under sub-clause (iv) having obtained the consent in writing of the
Charity Commissioner as provided in section 51 may institute a suit
whether contentions or not in the Court within the local limits of whose

jurisdiction the whole or part of the subject-matter of the trust is situated,
to obtain a decree for any of the following reliefs:-

(a) an order for the recovery of the possession of such

property or proceeds thereof;

(b) the removal of any trustee or manager;

(c) the appointment of a new trustee or manager;

(d) vesting any property in a trustee;

(e) a direction for taking accounts and making certain enquiries;

(f) an order directing the trustees or others to pay to the
trust the loss caused to the same by their breach of
trust, negligence, misapplication, misconduct or willful
default;

(g) a declaration as to what proportion of the trust
property or of the interest therein shall be allocated to

any particular object of the trust;

(h) a direction to apply the trust property or its income cy pres on
the lines of section 56 if this relief is claimed along with any
other relief mentioned in this section;

( i ) a direction authorising the whole or any part of the
trust property to be let, sold, mortgaged or exchanged
or in any manner alienated on such terms and
conditions as the court may deem necessary;

(j) the settlement of a scheme, or variations or alterations in a

scheme already settled;

(k) an order for amalgamation of two or more trusts by
framing a common scheme for the same;

(l) an order for winding up of any trust and applying the
funds for other charitable purposes;

(m) an order for handing over of one trust to the trustees
of some other trust and deregistering such trust;

(n) an order exonerating the trustees from technical
breaches, etc;

::: Downloaded on – 09/06/2013 17:55:01 :::

-9- sa-100-2000

(o) an order varying , altering, amending or superseding
any instrument of trust;

(p) declaring or denying any right in favour of or against,
a public trust or trustee or trustees or beneficiary
thereof an issuing injunctions in appropriate cases; or

(q) granting any other relief as the nature of the case may
require which would be a condition precedent to or
consequential to any of the aforesaid relief’s or is
necessary in the interest of the trust:

Provided that no suit claiming any of the reliefs specified
in this section shall be instituted in respect of any public trust,
except in conformity with the provisions thereof:

Provided further that, the Charity Commissioner may

instead of instituting a suit make an application to the Court for
a variation or alteration in a scheme already settled:

Provided also that, the provisions of this section and other
consequential provisions shall apply to all public trusts, whether
registered or not or exempted from the provisions of this Act
under sub-section (4) of section 1].

51. Consent of Charity Commissioner for institution of suit.

(1) If the persons having an interest in any public trust intend
to file a suit of the nature specified in section 50, they shall
apply to the Charity Commissioner in writing for his consent.

[If the Charity Commissioner after hearing the parties and
making such enquiries (if any) as he thinks fit is satisfied that
there is a prima facie case, he] may within a period of six
months from the date on which the application is made, grant
or refuse his consent to the institution of such suit. The order

of the Charity Commissioner refusing his consent shall be in
writing and shall state the reasons for the refusal.

(2) If the Charity Commissioner refuses his consent to the
institution of the suit under sub-section (1) the persons
applying for such consent may file an appeal to the
[Maharashtra Revenue Tribunal], in the manner provided by
this Act.

::: Downloaded on – 09/06/2013 17:55:01 :::

– 10 – sa-100-2000

(3) In every suit filed by persons having interest in any trust
under section 50, the Charity Commissioner shall be a necessary

party.

(4) Subject to the decision of the [Maharashtra Revenue

Tribunal] in appeal under section 71, the decision of the Charity
Commissioner under sub-section (1) shall be final and
conclusive.”

11 For deciding the application under Order VII Rule XI of the

Code of Civil Procedure, 1908, the averments made in the plaint alone

will have to be looked into.ig

12 In the case of Shree Gollaleshwar Dev and Others(supra), the

Supreme Court has observed in paragraph 13 as under:-

” It is clear from these provisions that S. 50 of the Act
created and regulated a right to institute a suit by the Charity

Commissioner or by two or more persons interested in the
trust, in the form of supplementary statutory provisions
without defeasance of the right of the manager or a trustee or a
shebait of an idol to bring a suit in the name of idol to recover

the property of the trust in the usual way.”

13 In the case of Amirchand Tulsiram Gupta and others (supra),

it is observed in paragraph 7, which reads thus:-

” It is necessary in this connection to refer to the decision
reported in A.I.R. 1986 S.C. 231 (Shree Gollaleshwar Dev and
ors v. Gangawwa Kom Shantayya Math and others). The
Supreme Court held that section 50 created and regulated a
right to institute a suit by the Charity Commissioner or by two

::: Downloaded on – 09/06/2013 17:55:01 :::

– 11 – sa-100-2000

or more persons interested in the trust, in the form of
supplementary statutory provisions without defeasance of the

right of the manager or a trustee or a shebait of an idol to
bring a suit in the name of idol to recover the property of the
trust in the usual way. In other words the Supreme Court

accepted the view taken by the Division Bench of this Court
that the right of a trustee to bring a suit in the usual way, that
is in exercise of rights under the Common Law is not affected
by provisions of section 50 of the Public Trusts Act. The ratio

laid down by the Supreme Court was followed by a Single
Judge of this Court in the decision reported in 1986 Mah. L.J.

773 (Vidarbha Kshatriya Mali Shikshan Sanstha v. Mahatma
Fuley Shikshan Samiti, Amravati), holding that trustees who

want to enforce their civil rights are not covered by definition
of the expression “person having interest” and are entitled to

file suits without obtaining prior permission. The same view
was taken by another Single Judge of this Court in the
decision reported in 1988(2) Bombay Cases Reporter 429,

(Leelavati w/o Vasantrao Pingle v. Dattatraya D. Kavishar &
Others). The
same view was taken by another Single Judge in
an unreported decision dated September 13, 1990 delivered in
Original Side Suit No.958 of 1975 and the decision of the

Single Judge was confirmed in Appeal No.1315 of 1990 by the
Division Bench by judgment dated March 14, 1991. The

Division Bench specifically disapproved the view taken by the
trial Court in the present case holding that the decision
reported in 69 Bom. L. R. 472 Rajgopal Raghunathdas Somani
v. Ramchandra Hajarimal Jhavar,
still holds filed and section

50 does not prohibit a suit being filed by trustees to recover
possession from a trespasser without obtaining prior
permission. We are in respectful agreement with the view
taken by the Division Bench and the learned Single Judges,
and we entirely disagree with the finding of the trial Judge

that the suit was not maintainable in absence of permission.
The learned trial Judge was clearly in error in holding that
after amendment of section 50 and section 2(10)(e) it is
incumbent upon the trustees to obtain prior approval of the
Charity Commissioner to institute suit against a trespasser for
recovery of possession. As the finding of the trial Judge on
this count is set aside, consequently the finding that the High
Court had no jurisdiction to entertain the suit and the suit
could be filed only in the City Civil Court after obtaining prior

::: Downloaded on – 09/06/2013 17:55:01 :::

– 12 – sa-100-2000

approval cannot stand.”

14 In the case Church of North India (supra), the Supreme Court

has considered the entire scheme of the B.P.T. Act, 1950 and the earlier

Judgment of the Supreme Court in the case of Shree Gollaleshwar Dev

and others (supra) was referred and in paragraph 98 it is held that if a

question which is outside the purview of the Act or in relation to the

possession of the trust property arises, Civil Court will have jurisdiction.

15 In the aforesaid legal background, perusal of the averments

made in the plaint clearly shows that the suit is filed in the ordinary Civil

Court and not under the “Court” as defined under Section 2(4) of the said

Act of 1950. The suit is for injunction instituted on the basis of averments

that the Defendants/ Applicants herein are trying to disturb and obstruct

the peaceful possession and enjoyment of the trustees representing the

trust and were obstructing the construction of compound wall which was

being erected for safe guarding the trust property. The said suit is,

therefore, out side the purview of the said Act of 1950, though the trusts

are “persons having interest” under Section 2(10) of the said Act as held

by the Supreme Court in the case of Shree Gollaleshwar Dev and others

(supra).

::: Downloaded on – 09/06/2013 17:55:01 :::

                                              - 13 -                               sa-100-2000


    16              In the case of   Leelavati w/o Vasantrao Pingle (supra), the 




                                                                                     

learned Single Judge held in paragraph 11 that:-

” The other course is that trustees, without moving the

Charity Commissioner, as owners of the property, can, like an
ordinary owner, file a suit against a trespasser in the ordinary
Court having original Civil jurisdiction over the subject-matter
of the suit. The present suit is of such a type filed before the

Civil Judge, Junior Division, Chikhli.”

17 This judgment has been specifically approved by the Division

Bench in the case of Amirchand Tulsiram Gupta and others (supra).

Since the suit is filed in the ordinary Civil Court by the trustees for a

prohibitory injunction against the third party, the provision of Sections 50

and 51 of the Act are not attracted. In such a suit, question which is

required to be decided or determined by any authority under the said Act

is not raised and, hence, the bar contained under Section 80 of the said

Act of 1950 is not applicable. Hence, the question of law which has been

framed above will have to be answered in favour of the Respondents/

Plaintiffs.

18 Second Appeal is, therefore, dismissed. On account of

dismissal of the Second Appeal, Civil Application No.1244 of 2010 does

not survive and same is also dismissed.

::: Downloaded on – 09/06/2013 17:55:01 :::

                                          - 14 -                           sa-100-2000


    19          Record and proceedings of RCS No.1002 of 1998 shall be sent 




                                                                             
    back to the Trial Court forthwith.

    20          The learned Judge of the Trial court is directed to hear and 




                                                     

decide the said Suit on or before 30th September,2012.

(G.S.GODBOLE,J.)

::: Downloaded on – 09/06/2013 17:55:01 :::

Ajaykumar Yadaorao Nikhar vs State Of Maharashtra on 11 November, 2011

Bombay High Court
Ajaykumar Yadaorao Nikhar vs State Of Maharashtra on 11 November, 2011
Bench: B. P. Dharmadhikari, A.P. Bhangale
                                    1
           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH




                                                                    
              WRIT PETITION NO.  5377   OF  2004




                                            
     Ajaykumar Yadaorao Nikhar,
     aged about 38 years,




                                           
     occupation - Social Service,
     r/o Ram Mandir Ward,
     Bhandara, Tah. & Dist. Bhandara.         ...   PETITIONER




                                  
                Versus
                   
     1. State of Maharashtra,
        through its Secretary,
        Tribal Development Department,
                  
        Mantralaya, Mumbai 400 032.

     2. Scheduled Tribe Caste Certificate
        Scrutiny Committee, Adiwasi Vikas
      


        Bhawan, Giripeth, Nagpur.
   



     3. The Collector, Bhandara.

     4. Smt. Leena Kowe,





        aged about Adult, occupation -
        Not known, r/o Jai Gondwana 
        Mahila Bahuuddeshiya Vikas
        Mandal, Baliramji Maikam's
        House, Baba Mastanshah Ward,





        Bhandara.

     5. Smt. Anita Tekam,
        aged about - Adult, occupation -
        Not known, r/o Ward No. 4-A,
        Municipal Council, Bhandara.




                                            ::: Downloaded on - 09/06/2013 17:54:47 :::
                                           2

     6. Bharat Tulosiram Kumbhare,




                                                                          
        aged about 39 years, r/o
        Ram Mandir Ward, Bhandara,




                                                  
        Taluka & District - Bhandara.                ...   RESPONDENTS




                                                 
     Shri S.R. Narnaware, Advocate for the petitioner.
     Shri D.M. Kale, AGP for respondents No. 1 & 3.
     Shri P.B. Patil, Advocate for respondent No. 2.
     Shri C.S. Kaptan, Advocate for respondent No. 6.




                                     
                  .....


                  
                       
                          
                       CORAM :   B.P. DHARMADHIKARI
                                 &   A. P. BHANGALE, JJ.

DATE OF RESERVING JUDGMENT : OCTOBER 10, 2011.

DATE OF PROUNCING JUDGMENT : NOVEMBER 11, 2011.

JUDGMENT : (Per B.P. DHARMADHIKARI, J.)

1. Order dated 16/10/2004 passed by Caste Scrutiny

Committee invalidating caste claim of petitioner as belonging to

Halba scheduled tribe forms subject matter of challenge in this

matter. Impugned order is under Maharashtra Scheduled Castes,

Scheduled Tribes, De-notified Tribes (Vimukta Jatis) Nomadic

Tribes, Other Backward Classes and Special Backward Category

(Regulation of Issuance and Verification of) Caste Certificate

::: Downloaded on – 09/06/2013 17:54:47 :::
3
Act,2000–referred to as Act no.23 of 2001 hereafter. Petitioner

has sought that caste certificate on 9/3/1983 & contested

election as councilor of Municipal Council, Bhandara on

22/1/2002 against a reserved seat. Because of this invalidation,

Collector had declared him disqualified on 6/11/2004 and it was

recalled on 22/11/2004 as this Court on 11/11/2004 stayed the

order of Scrutiny Committee. Thereafter, during pendency of

this petition & because of orders dated 29/11/2004 in it, he has

been elected again in January,2007 as scheduled tribe candidate

on the strength of same caste certificate & current tenure is due

to expire on 2012.

2 In this background, we have heard Adv. Narnaware

for petitioner, Adv. Patil for respondent 2 Scrutiny Committee,

Adv. Kaptan for respondent 6 & Shri Kale, learned AGP for

respondents No. 1 & 3

3 Advocate Narnaware has basically raised 4 issues.

::: Downloaded on – 09/06/2013 17:54:47 :::
4

The constitution of Committee according to him is not legal as it

is in breach of mandatory directions issued by the Hon. Apex

Court in case of Madhuri Patil v. Addl. Commissioner, Tribal

Development,-AIR 1995 SC 94 as modified in 1997 at AIR 1997

SC 2581- “Madhuri Patil v. Addl. Commissioner, Tribal

Development, Thane“. Strong support is being taken from

direction 4 in 1995 verdict & para 5 of later. Second contention

is about no association of Research Officer with vigilance cell

and his not accompanying the police officer for spot inquiry &

verification. Third ground raised is about not applying affinity

test legally & ignoring material provided by petitioner on

28/7/2003. Lastly, it is urged that allegations of malafides

leveled are not denied by filing an affidavit of competent officer

and plea about perversity of findings is not traversed.

4 In order to substantiate the first contention, Shri

Narnaware, learned counsel relied upon assertions in para 16 of

writ petition to point out Constitution of Scrutiny Committee

which has adjudicated the caste claim of the petitioner. The

::: Downloaded on – 09/06/2013 17:54:47 :::
5
reliance is being placed on direction No. 4 of the Hon’ble Apex

Court in the case of Madhuri Patil vs. Additional Commissioner,

Tribal Development, (supra), and view expressed in the case of

GM, Indian Bank vs. R. Rani & Anr., reported at (2007) 12 SCC

796. He states that the Additional Secretary or Joint Secretary is

not the Chairman of said Committee and Director of Tribal

Development was also not associated with it. He also invites

attention to the judgment in the case of Director of Tribal

Welfare, Government of A.P. vs. Laveti Giri, reported at (1995) 4

SCC 32 and Baswant vs. State of Maharashtra, reported at (2007)

14 SCC 800, to urge that said direction in Madhuri Patil-(supra)

is binding and mandatory. To demonstrate that there was no

Research Officer involved in Vigilance investigation, he points

out that Police Inspector has made enquiry as part of Vigilance

Cell on 28.07.2003 and Research Officer has countersigned it on

29.07.2003. The attention is also invited to reply given by the

petitioner to vigilance report to show that Research Officer had

not accompanied said Police Inspector for field enquiries. The

case of Madhuri Patil vs. Additional Commissioner, Tribal

::: Downloaded on – 09/06/2013 17:54:47 :::
6
Development, Thane, (supra), particularly para 5 therein is cited

to buttress this contention. The learned counsel states that

because of these lacunae, two documents relied upon by the

petitioner which supported his case have not been looked into by

the Vigilance Cell and the Committee. The first document

according to him is caste certificate of his father issued on

05.10.1977 while the later document is dated 05.01.1927 and of

cousin grand father. The attention is being drawn to para 5 of

writ petition.

5 Affinity test has also not been rightly applied and

material supplied on behalf of the petitioner to vigilance

authorities on 28.07.2003 has not been properly evaluated. The

only consideration is the remark of Research Officer dated

29.07.2003 where he records that traits do not match. Para 12

of writ petition and judgment of the Hon’ble Apex Court in the

case of Gayatrilaxmi B. Nagpure vs. State of Maharashtra,

reported at AIR 1996 SC 1338 are relied upon. It is further

contended that the allegations of malafides are not rebutted and

::: Downloaded on – 09/06/2013 17:54:47 :::
7
even the contention in writ petition that finding recorded by the

Scrutiny Committee are perverse, has not been denied.

According to him, the approach of Scrutiny Committee in the

matter has been too casual. The judgment in the case of(wrong

citation ?) reported at 2009 ALL MR (SC Reporter) 193, para

115 is stated to be relied upon for said purpose.

6

In reply, Shri Patil, learned counsel for respondent

No. 2 – Committee has invited attention to Government

Resolution dated 14.07.1997 to urge that constitution of

Committee is in accordance with the observations of the Hon’ble

Apex Court in Madhuri Patil’s case (supra) and Committee is

valid. He further states that here the impugned order is passed

on 16.04.2004 and Act No. 23 of 2001 has come into force on

28.10.2001. The Notification constituting Scrutiny Committee

under Section 6 of said Act is dated 04.06.2003 and it has been

slightly modified on 12.07.2006. The reliance upon 1999

Government Resolution in this respect by the petitioner is

misconceived and there is no challenge to these later

::: Downloaded on – 09/06/2013 17:54:47 :::
8
notifications. Affidavit dated 03.10.2011 filed by Respondent

No. 2 – Committee is pressed into service to urge that

Constitution of Committee is as per judgment of the Hon’ble

Apex Court in the case of Madhuri Patil’s case. The learned

counsel has further stated that the petitioner never challenged

constitution of Committee and submitted to its jurisdiction and,

therefore, doctrine of de facto has to apply. The unreported

judgment of Division Bench of this Court at Aurangabad

delivered on 12.08.2011 in Writ Petition 107 of 2010 is relied

upon for this purpose. He has also relied upon AIR 2005 S.C.

3446 “State Bank’s Staff Union (Madras Circle) v. Union of

India” to show how validity of an Enactment subsequent to

court verdict needs to be examined.

7 The first judgment in the case of Madhuri Patil vs.

Additional Commissioner, Tribal Development, Thane, (supra) is

relied upon along with later Madhuri Patil vs. Additional

Commissioner, Tribal Development, (supra) to urge that as

required by said judgments of the Hon’ble Apex Court, Research

::: Downloaded on – 09/06/2013 17:54:48 :::
9
Officer has participated in vigilance enquiry. Reply filed,

particularly para 14 onwards are relied upon for this purpose.

The judgment in the case of Prajakta vs. State of Maharashtra,

2007 (2) Mh. L.J. 760 (paras 14/ 19) are read out to contend

that Research Officer need not go with Vigilance Cell Officer for

field enquiry. The observations in para 14 in this judgment are

relied upon to urge that directions issued by the Hon’ble Apex

Court are only “workable principles”. Rule 10 of Rules framed

under Act No. 23 of 2001 along with Rule 12(2) is also relied

upon for this purpose. Judgment in the case of Bharat vs. State

of Maharashtra, reported at 2010 (4) Mh. L.J. 458, para 18 is

relied on for same purpose along with above referred unreported

judgment in Writ Petition No. 107 of 2010 at Aurangabad ( para

21). The judgment in Sangeeta Balayya Bhurewar vs. State of

Maharashtra, reported at 2003(5) Mh. L.J. 645 is pressed into

service to show that constitution of committee need not be

strictly as per directions in the judgment of the Hon’ble Apex

Court.

::: Downloaded on – 09/06/2013 17:54:48 :::
10

8 About old document of 1914, the learned counsel

states that person named therein viz. Ganpat Desaru does not

figure in family tree disclosed by the petitioner and it was also

not made available to Vigilance Cell authorities or Committee.

The learned counsel states that that document is misleading and

has been produced before this Court with malafide intention.

According to him, as demonstrated in reply affidavit in paras 11

& 12, principles of affinity have been correctly applied. The

judgments in the case of Ramatai Madhukarrao Tapre vs. State of

Maharashtra & Ors., reported at 2002 (Supp. 2) Bom. C.R. 268,

(para 10) by learned Single Judge of this Court and of Hon. Apex

Court in L. Ushadevi vs. Union of India, reported at 2007(14) SCC

491 are pressed into service to urge that Act No. 23 of 2001 is

complete code. The judgment in the case of Vijaya Deorao

Nandanwar vs. State of Maharashtra, reported 2010 (6) Mh. L.J.

445 is relied upon to urge that only when constitution of

committee is contrary to law or then “working principles” in

Madhuri Patil-(supra), interference is warranted and not

otherwise. The material on record is pressed into service to

::: Downloaded on – 09/06/2013 17:54:48 :::
11
show that appropriate opportunity has been given to petitioner

and principles of natural justice have been followed. There is no

procedural illegality or jurisdictional error. There is no prayer in

writ petition to set aside notification constituting Scrutiny

Committee and by producing wrong documents, effort has been

made to mislead this Court. Wrong statements have been made

in writ petition and on its basis, the petitioner has completed

first five years of elected tenure. The scope of judicial review

being limited, petition should be dismissed but then serious

cognizance of malafides on the part of the petitioner should be

taken.

9 Shri Kaptan, learned counsel for respondent No. 6

has relied upon reply affidavit filed by the Scrutiny Committee to

show that the Commissioner appointed as Chairman of said

Committee is of level of Joint Secretary and hence composition

of that Committee is proper. In Writ Petition, challenge is to non

existent resolution or notification & in absence of proper prayer,

it must fail. He contends that direction No. 4 in the judgment in

::: Downloaded on – 09/06/2013 17:54:48 :::
12
the case of Madhuri Patil (supra) is fully complied with here.

The judgment of Division Bench of this Court in the case of Rohit

Rathod (supra) is pending in Special Leave Petition before the

Hon’ble Apex Court and has been stayed. The judgment in the

case of Sudhakar Vithal Kumbhare vs. State of Maharashtra,

reported at 2004 (9) SCC 481, is sought to be distinguished by

pointing out that there caste claim was held invalid without

referring the matter to Caste Scrutiny Committee and thus

Article 141 was violated. Here, the invalidation is after due

opportunity to petitioner & in full compliance with law on the

point. In the alternative and without prejudice, he states that 3

members out of total 5 members constitute quorum and as in

present proceedings, quorum always existed, all meetings and

adjudication by the Scrutiny Committee is valid. Hence, even if

the Commissioner is not held to be competent as Chairman

Member, still the proceedings therein are not vitiated. Support is

being taken from the judgment in the case of The Punjab

University, Chandigarh vs. Vijay Singh Lamba & Ors, reported at

1976 (3) SCC 344.

::: Downloaded on – 09/06/2013 17:54:48 :::
13

10 The learned counsel further states that when the

Hon’ble Apex Court considered the controversy either in 1994 or

then in 1997, there was no Enactment framed by competent

Legislature occupying the field. The judgment of the Hon’ble

Apex Court in the case of Rajeswar Prasad Misra vs. The State of

West Bengal & Anr., reported at AIR 1965 SC 1887 is relied upon

to show that the Hon’ble Apex Court or then no Court enacts a

law. To point out that even adjudication by the Court of Law can

be nullified by Legislature by enacting a competent law, he relies

Saksena vs. State of
upon the judgment in the case of I.N.

Madhya Pradesh, reported at AIR 1976 SC 2250 (1). He

contends that though direction No. 4 in the case of Madhuri Patil

(supra) is not completely diluted by Act No. 23 of 2001, the

Notification issued under Section 6 of said Act is consistent and

in consonance with direction No. 4. Lastly, Division Bench

judgment in the case of Deorao G. Umredkar vs. State of

Maharashtra, reported at 2007 (5) BCR 629 (para 30) is relied

upon to show that role of Research Officer starts after vigilance

investigation and hence he is not supposed to visit the spot

::: Downloaded on – 09/06/2013 17:54:48 :::
14
during field enquiry.

11 Shri Narnaware, learned counsel, in reply argument

has contended that there is no answer by any of the respondents

as to why officer higher in rank than Director could not be

appointed as the Chairman. He repeats that directions No. 4 in

first and 5 in later Madhuri Patil case are mandatory and the

same are never modified nor diluted. The judgments in the case

of AIR 1997 S.C. 2046 “Director of Tribal Welfare v. Laveti Giri“D/-

10 -3 -1997 & GM, Indian Bank vs. R. Rani & Anr . , (supra) are

relied upon to contend that the State Legislature had not

obtained any permission from the Hon’ble Apex Court before

enacting Act No. 23 of 2001. The Government Resolution dated

14.07.1997 after second judgment in the case of Madhuri Patil,

law stated in the case of Rohit Rathod vs. State of Maharashtra,

reported at 2010 (2) Mah. L.J. 384, and judgment of the Hon’ble

Apex Court in the case of Sudhakar Vithal Kumbhare vs. State of

Maharashtra & Ors., reported at (2004) 9 SCC 481 are pressed

into service for this purpose. The judgment in the case of

::: Downloaded on – 09/06/2013 17:54:48 :::
15
Central Inland Water Transport Corporation Ltd. v. Brojo Nath

Ganguly” reported at AIR 1986 SC 1571 is pressed into service to

urge that Section 6 confers upon the State Government a wide

and un-canalized power. Therefore, challenge to notification

issued thereunder is not necessary. The judgment in the case of

Vijay Kisan Karanjkar vs. State of Maharashtra, reported at 2004

(3) Mh. L.J. 49 and unreported judgments in Writ Petition No.

8413 of 2008 (paras 6 & 7), Writ Petition No. 2136 of 2011

(paras 6 & 8) are relied upon for this purpose. State of Haryana

vs. State of Haryana, reported at (1993) 3 SCC 114 (paras 10 &

12) is pressed into service to show how principles of law need to

be applied & consistent approach is of paramount importance.

12 Unreported judgment in Writ Petition No. 107 of 2010

(para 21) and judgment in the case of Ashwini Anil Chavan vs.

State of Maharashtra, reported at 2006 (4) Mh. L.J. 415 (para 3)

are cited to point out how the Research Officer is expected to

accompany vigilance cell authorities. The judgment delivered at

Nagpur in the case of Bharat vs. State of Maharashtra, reported

::: Downloaded on – 09/06/2013 17:54:48 :::
16
at 2010 (4) Mh. L.J. 458 (para 18) is relied upon for said

purpose. The Government policy on this in Circular dated

06.09.2000 , particularly clause 5, thereof is relied upon to point

out the role to be played by a Research Officer in field enquiry.

Learned Counsel has further urged that here, the affidavit of

Research Officer filed on 03.10.2011 is not by that Officer who

was associated with present vigilance enquiry and hence that

affidavit cannot be accepted. The judgment in the case of “C. S.

Rowjee v. State of A.P.” reported at AIR 1964 SC 962 (para 22) is

cited to show how the allegations of malafides need to be dealt

with by respondent & by Courts. The learned counsel has

concluded his reply by contending that non-inclusion of

Additional or Joint Secretary from Committee is in fact Contempt

of Court.

13 It will be appropriate to first deal with the issue of

composition of Scrutiny Committee. The challenge is based

upon directions of the Hon’ble Apex Court in the case of Madhuri

Patil vs. Additional Commissioner, Tribal Development, (supra),

::: Downloaded on – 09/06/2013 17:54:48 :::
17
and its later judgment also in the case of Madhuri Patil vs.

Additional Commissioner, Tribal Development, Thane, reported at

AIR 1997 SC 2581 (supra). Direction No. 4 as contained in para

12 in first judgment requires State Governments to constitute a

Committee of three officers and first one amongst them is

Additional or Joint Secretary or any officer higher in rank of the

Director of concerned departments. The second one is Director,

Social Welfare, Tribal Welfare, Backward class welfare etc.

Therefore, first member has to be of a rank above Director. In

later judgment, the Hon’ble Apex Court has not touched this

direction and it is retained as it is. The later judgment is on

application moved by State Government for some modifications

in earlier directions. On 14.07.1997 mentioning both these

judgments, State Government has issued a resolution and for

Nagpur Area, officer of the rank of the Additional Secretary or

Joint Secretary/ Director, Tribal Development and Research

Institute, Pune, is nominated as Member. The Assistant Director,

Tribal Development, Pune and Assistant Director, Tribal

Development, Amravati are its two members. The Deputy

::: Downloaded on – 09/06/2013 17:54:48 :::
18
Director (Research) is its Member Secretary. Two Research

Officers are also its members. After coming into force of Act No.

23 of 2001 vide Notification dated 04.06.2003, the Committee

has been constituted in exercise of powers under S.6 thereof and

this notification does not refer to earlier resolution mentioned

above, issued in pursuance of directions of the Hon’ble Apex

Court. This resolution with its modification is already mentioned

by us above. The officer of the rank of Additional Secretary or

Joint Secretary expressly does not figure in it. The Chairman of

the Committee is Commissioner/ Director for Tribal Research

and Training Institute, Pune. The resolution has undergone

slight change on 12.07.2006. The petitioner has not challenged

any of these resolutions or notifications.

14 Shri Kaptan, learned counsel, had therefore,

contended that in the absence of challenge to any particular

notification issued under Section 6, the arguments of the

petitioner are only of academic importance. However, in the

case of Vijay Kisan Karanjkar vs. State of Maharashtra, (supra),

::: Downloaded on – 09/06/2013 17:54:48 :::
19
Division Bench of this Court has considered the judgment of the

Hon’ble Apex Court in the case of Madhuri Patil-(supra) and in

para 15 observed that it was not open to State Government to

contend that the constitution of committee as directed by the

Hon’ble Apex Court was not compulsory. This judgment of

Division Bench of this Court is delivered on 27.06.2003 i.e. after

notification dated 04.06.2003. However, it does not appear that

this notification dated 04.06.2003 was being considered there, as

challenge was to adjudication by the Scrutiny Committee dated

12.05.2003. Thus, that Committee was not constituted under

Act No. 23 of 2011. This Court also found that Government

itself had prescribed quorum of two members and hearing was

also accorded only by two members but the order was passed by

three members and signed by the committee consisting of three

members. The Government had then contend that third member

was necessary only in case of verification of caste claims of

Scheduled Castes or Scheduled Tribes candidate. This Court did

not accept that stand. The Division Bench in the process has

noted contention that Act No. 23 of 2001 did not provide

::: Downloaded on – 09/06/2013 17:54:48 :::
20
minimum number of members on committee and the petitioner

had not challenged the resolution which prescribed quorum or

constitution of committee. The Division Bench has, however,

nowhere specifically stated that it was not necessary for the

petitioner to challenge said resolution. However, in view of this

judgment, we have proceeded further to consider the challenge

even on merits. We are required to look at it again in the course

of discussion.

15 The Scrutiny Committee has filed an affidavit of reply

on 03.10.2011 during hearing and in it, it is stated that the

Commissioner/ Director of Tribal Research and Training, Pune, is

Chairman of the Committee. The said officer is I.A.S. and of the

rank of Joint Secretary. Similarly, the Additional Commissioner

was the person of the rank of the Director of Tribal Welfare. It is

also pointed out that status of the Commissioner/ Director for

Tribal Research and Training, Pune and of Additional

Commissioner has nowhere been questioned in the petition.

These assertions on oath have not been traversed by the

::: Downloaded on – 09/06/2013 17:54:48 :::
21
petitioner thereafter though hearing continued till 10th October

2011. In GM, Indian Bank vs. R. Rani & Anr. (supra), the

Hon’ble Apex Court has found that directions in Madhuri Patil

judgment would have binding force of law. The observations are

made while considering the challenge to judgment of the Madras

High Court where it appears that there was no Enactment like

Act No. 23 of 2001. In this judgment, the Hon’ble Apex Court

has pointed out that its directions have binding force of law after

noticing earlier precedents. Consideration in para 7 shows that

reiteration of principles laid down in Madhuri Patil (supra) in

subsequent judgment in the case of Director of Tribal Welfare,

Government of Andhra Pradesh vs. Laveti Giri, (supra), requiring

Government of India to examine the issue in greater details and

to bring up uniform legislation are taken note. Thereafter

judgment of the Hon’ble Apex Court itself in the case of Baswant

vs. State of Maharashtra & Ors., (supra), arising out of State of

Maharashtra is also noted and the Hon’ble Apex Court has found

that Constitution of Committee there, was not in accordance

with decision rendered by it in Madhuri Patil-(supra). The

::: Downloaded on – 09/06/2013 17:54:48 :::
22
judgment of larger Bench of the Hon’ble Apex Court in the case

of Sudhakar Vithal Kumbhare vs. State of Maharashtra, reported

at (2004) 9 SCC 481, is then looked into with mention that there

caste claim was invalidated without referring the matter to

appropriate committee. The Hon’ble Apex Court, therefore,

noted that the directions given in Madhuri Patil (supra) cannot

be viewed simply as guidelines and said law reiterated on

number of occasions was found approved even by three judge

bench of the Hon’ble Apex Court. It is to be noted that Baswant

vs. State of Maharashtra & Ors., (supra), is the matter which

arises out of SLP(C) filed in the year 1998 and hence it is prior to

coming into force of Act No. 23 of 2001. The other judgment in

the case of Sudhakar Vithal Kumbhare vs. State of Maharashtra,

(supra) which goes to the Hon’ble Apex Court from State of

Maharashtra only, also shows that there claim was not referred

to Scrutiny Committee at all. The later judgment of the Hon’ble

Apex Court in Director of Tribal Welfare vs. Laveti Giri, (supra)

finds mention in para 8 of this judgment. The Hon’ble Apex

Court in this later judgment has approved draft rules submitted

::: Downloaded on – 09/06/2013 17:54:48 :::
23
to it by State of Andhra Pradesh. The draft rules were prepared

in pursuance of a State Act already in force in that State prior to

Madhuri Patil-(supra). We have to make reference to this 1997

judgment in Laveti Giri , little later. The Hon’ble Apex Court

approved those draft rules and constitution of the State Level

Committee and District Level Committees thereunder. In said

para 8, the Hon’ble Apex Court has pointed out that directions

issued in Madhuri Patil-(supra), have not been modified. All this

holds good where the field of caste claim verification is not

occupied by a competent legislation.

16 In the case of Sangeeta Balayya Bhurewar vs. State of

Maharashtra, reported at 2003 (5) Mh. L.J. 645, Division Bench

of this Court has considered the law on the point and has

observed at the end of para 16 that the learned Single Judge

who found non compliance with paragraph No. 5 in the case of

Madhuri Patil-(supra) not sufficient to vitiate the findings

recorded by Committee, correct. In the said judgment, learned

Judge follows view of another learned Single Judge in the case

::: Downloaded on – 09/06/2013 17:54:48 :::
24
of Kum. Chhaya Namdeorao Binekar vs. State of Maharashtra,

reported at 2003(3) Mh.L.J. 339. In the said judgment in para

26, the learned Single Judge has held that manner of

investigation need not be strictly in accordance with the words of

the Hon’ble Supreme Court. In the case of Vijaya Deorao

Nandanwar vs. State of Maharashtra, reported at 2010 (6)

Mh.L.J. 445, Division Bench of this Court has considered the

question of Constitution of Scrutiny Committee and found that

when Constitution of Scrutiny Committee is on the basis of first

judgment of the Hon’ble Apex Court in Madhuri Patil,

qualification and experience of personnel in the rank and cadre

as on date of said judgment have to be construed as adequate as

saved by necessary implication. In para 28, said Division Bench

has observed that it is open to State Government to legislate as

regards qualifications of members of Scrutiny Committee in

conformity with Madhuri Patil’s case. The Division Bench also

noted that said process was going on. If the Committee is found

constituted in accordance with law, Division Bench found that it

was not open to anybody to challenge its constitution on the

::: Downloaded on – 09/06/2013 17:54:48 :::
25
ground of lack of qualification so long as its constitution

conforms to the dictum in the Madhuri Patil’s case.

17 This brings us to consideration of Division Bench

judgment in the case of Rohit Rathod vs. State of Maharashtra,

reported at 2010 (2) Mh. L.J. 384. There the order of Scrutiny

Committee dated 30.04.2009 invalidating his caste claim as

belonging to Vimukta Jati was assailed. The Scrutiny Committee

as constituted under Act No. 23 of 2001 as per Notification dated

12.02.2009 had considered that issue of invalidity. The said

Committee consisted of Additional Collector, Nagpur, who acted

as Chairman, Research Officer and Member Secretary and

Member of Divisional Social Welfare Officer. The invalidation

was questioned on the ground that constitution of Committee

was not in accordance with the judgment of the Hon’ble Apex

Court in the case of Madhuri Patil (supra). The Division Bench

has noticed that constitution of committee which adjudicated

caste claim was not as per notification dated 12.2.2009 issued

under S. 6 of Act no. 23 of 2001. As per this 12.2.2009

::: Downloaded on – 09/06/2013 17:54:48 :::
26
notification, the Committee for Social Welfare, Cultural Affairs

and Sports Department, was to comprise of Additional

Commissioner (Revenue) as Chairman, Divisional Social Welfare

Officer as Member and Research Officer as Welfare Officer

Member. The Research Officer was to function as Member

Secretary. The learned Assistant Government Pleader had tried

to justify the Constitution of Committee by placing reliance upon

Section 6(1) of Act No. 23 of 2001. He contended that

enactment did not require Government to constitute a

Committee of Officers of particular status or rank. Rule 9 of

2003 Rules framed under the Act no. 23 of 2001 were also

pressed into service to support the contention that Additional

Commissioner (Revenue) was not required as a Chairman. The

Division Bench of this Court has found that neither said Section

6 nor Rule 9 stipulated who should be appointed on Committee.

In para 9 of the judgment, it has been mentioned that said

provisions confer un-canalized discretionary powers on State

Government and it would, therefore, be unconstitutional. Said

Division Bench has drawn support for this from the judgment of

::: Downloaded on – 09/06/2013 17:54:48 :::
27
the Hon’ble Apex Court in the case of Central Inland Water

Transport Corporation Limited & Anr. vs. Brajo Nath Ganguly &

Anr., reported at AIR 1986 SC 1571. But as there was no prayer

for declaring said Enactment (23 of 2001) unconstitutional,

Division Bench has left that issue open. Because of Division

Bench judgment in the case of Vijay Kisan vs. State of

Maharashtra, (supra), it found that Direction No. 4 is clearly

mandatory and the Additional Collector could not have

functioned as Chairman. It, therefore, has set aside that

adjudication of caste claim and directed fresh consideration by a

duly constituted Scrutiny Committee. The respective counsel

have also pointed out to us that this judgment is stayed by the

Hon’ble Apex Court presently. We also note that earlier view of

Division Bench of this Court in Dattatraya Rambhau Thorat vs.

State of Maharashtra -2002(4) All.M.R. 807 negating challenge

to constitutional validity of Act no. 23 of 2001 has observed:-

“40. Under section 6 of the Act provision has been
made for constituting, by notification in the official gazette,

::: Downloaded on – 09/06/2013 17:54:48 :::
28
one or more scrutiny committee(s) for verification of caste
certificates and it is further provided that the said committee

shall follow such procedure for verification of the caste

certificate and adhere to the time limit for verification and
grant of validity certificate, as prescribed. The composition of
the committee viz. the number of members etc., has not been

spelt out and, therefore, the natural presumption that is
required to be drawn is that the composition of the

committee shall be as per the directives laid down by the
Apex Court in Kumari Madhuri Patil’s case (supra). The

provisions of section 6 of the Act are clear on the composition

of the committee and the contentions that they are contrary
to the directives issued by the Supreme Court are without any
substance.” This judgment is looked into by Full Bench of

this Court in Sujit V. Patil vs. State Of Maharashtra–(2004)3

Mah. L.J. 1109. Hon. Apex Court has while considering
overriding effect of Act no. 23 of 2001 on government
resolution dated 15.6.1995 in case of State of Maharashtra

vs. Sanjay Nimje, noted that a different Scrutiny Committee
constituted under S. 6 of said Act has started functioning in
Maharashtra when it observes:– “11. The Caste Scrutiny

Committee was initially constituted in terms of the decision
of this Court in Kumari Madhuri Patil & Anr. Vs. Additional
Commissioner, Tribal Development & Ors. 1994 (6) SCC

241). The Committee which was now constituted in terms of

::: Downloaded on – 09/06/2013 17:54:48 :::
29
the 2000 Act issued a notice upon the respondent. He was
given an opportunity of hearing. The principles of natural

justice had, thus, been complied with. The Caste Scrutiny

Committee opined that the respondent failed to prove — …

—.” This shows that this Court in Rohit Rathod vs. State of
Maharashtra
(supra) was not required to & has not laid

down any law on the aspect raised before us.

18 The judgment of Division Bench of this Court in the

case of Vijay Kisan vs. State of Maharashtra, (supra) reveals that

there the order of Scrutiny Committee was dated 12.05.2003

and the Committee consisted of three members but then hearing

was afforded by two members only and the impugned order was

signed by three members. The petitioner, therefore, had

contended that such order was unsustainable. The learned AGP

supported that order and pointed out that on two days when

hearing took place, it was before two members of Scrutiny

Committee while the impugned order was issued by all three

members. The stand was, the proceedings could not have been

held as vitiated because of Government Resolution dated

::: Downloaded on – 09/06/2013 17:54:48 :::
30
25.01.2000. The said Government Resolution dealt with quorum

and prescribed that at each hearing, there should be quorum of

two members but then the validity certificate should be issued

under the signatures of all three members and needed seal of

office of the Committee. This controversy is examined and in

para 15, the Division Bench has found that State Government

could not have contended that it was not obliged to constitute a

Committee as per judgment of the Hon’ble Apex Court in the

case of Madhuri Patil-(supra). It also noted that validity of

Government Resolution prescribing quorum of two members was

not assailed before it and hearing extended by two members,

therefore, could not have been objected to. In para 18, the

contention that in facts of the matter, participation by third

member was not necessary as caste claim was of OBC candidate,

has been taken note of. The conclusion reached in para 19

shows that there were no separate and independent committees

and hence this contention was held only academic. It is held

that the Hon’ble Apex Court had directed constitution of

Committee of three members and that direction needed to be

::: Downloaded on – 09/06/2013 17:54:48 :::
31
complied with. All three members, therefore, ought to have

accorded hearing to the petitioner. Because of this reason,

challenge to Government Resolution prescribing quorum was

found immaterial and the impugned order was set aside. It is,

therefore, obvious that the issue of Constitution of Committee

under Act No. 23 of 2001 or then statutory rules dealing with

quorum during such proceedings of Scrutiny Committee did not

fall for consideration before the said Division Bench.

19 Thus Rohit Rathod vs. State of Maharashtra,(supra)

does not hold that S. 6 of the Act no. 23 of 2001 is bad or the

committee constituted thereunder is illegal. It only finds

functioning of Additional Collector as chairman contrary to

notification dated 12.2.2009 issued by State Government by

using its powers under said S. 6. Before us, the issue is of conflict

between the statutory notification and committee as envisaged

by Hon. Apex Court in absence of any statute. The need to have

uniform law on the subject is already noted by Hon. Apex Court.

At this stage, we only wish to indicate that the nature of

::: Downloaded on – 09/06/2013 17:54:48 :::
32
directions issued as “workable principles” or “guidelines” and

two judgments of Hon. Apex Court with reference to State

Enactments were not pointed out to this Court in Rohit Rathod

vs. State of Maharashtra,(supra). As the contention was not

specifically raised there, the relevant arguments having bearing

on the matter were also not advanced. We will like to revert back

to this aspect little later when we consider judgments of Hon.

Apex Court in matter Laveti Giri (1997) & L. Ushadevi vs. Union

of India, (supra).

20 This brings us to consideration of the other argument

about not applying affinity test properly or then non

consideration of two documents submitted by the petitioner. The

service of vigilance cell report upon the petitioner is not in

dispute. The petitioner has also replied to said reports. The

pleadings before us show contention that said enquiry cannot be

said to be proper enquiry as it did not go into requisite details

and no person related to the petitioner was examined. The

recording of statement of the petitioner is not sufficient and his

::: Downloaded on – 09/06/2013 17:54:48 :::
33
father and uncle were not examined. The Research Officer was

not associated as required by paragraph No. 5 in later judgment

in the matter of Madhuri Patil-(supra). The documents and reply

submitted by the petitioner have not been properly considered.

21 The first document is issued by the Executive

Magistrate, Bhandara on 05.10.1977 to the father of the

petitioner, showing that he belongs to Halba community which is

recognized as Scheduled Tribe. It also mentions that father and

his family ordinarily resided in Bhandara district. The reply of

the petitioner to Police Vigilance Cell is dated 28.05.2004 and

this reply does not make any reference to said document. It is

also important to note that the order of Scrutiny Committee

nowhere mentions this document & it states on oath about its

non-supply on record. In para 3 of writ petition, after

mentioning the fact of his election, the petitioner has stated that

he has placed on record caste certificate of his father dated

05.10.1977. There is thus no specific averment that this

document was supplied to Scrutiny Committee. The documents

::: Downloaded on – 09/06/2013 17:54:48 :::
34
supplied to Scrutiny Committee show photostat copy of birth

certificate of a male child born to Yadavrao Somaji (father of the

petitioner) on 26.02.1961, photostat copy of caste certificate of

the petitioner’s brother issued by the Executive Magistrate,

Bhandara, on 16.07.1974 and also birth certificate of male child

born to grand father Soma Jagat on 22.11.1937. The other four

documents are also mentioned. In this situation, it is apparent

that non consideration of this document dated 05.10.1977 by

itself is not sufficient to invalidate the consideration by the

Scrutiny Committee. Moreover, this document does not

anywhere show that the Executive Magistrate had verified any

other document or material before issuing said certificate on

05.10.1977 to Yadavrao. It appears that said document was

never supplied by petitioner. The other document not looked into

by the Scrutiny Committee is a School Leaving Certificate which

has been annexed with writ petition as Annexure 5. It is

undated and name of student mentioned therein is Ganpat

Dasru. His caste is shown as Halba with date of birth as

30.05.1914. In June 1927, said Ganpat had taken admission in

::: Downloaded on – 09/06/2013 17:54:48 :::
35
III Standard and left School on 11.04.1929 after passing IV

Standard examination. The Scrutiny Committee has in reply

affidavit stated that said document was not supplied to Scrutiny

Committee at any point of time. Though during oral arguments,

the learned counsel has stated that Ganpat Dasru is cousin grand

father, in para 5 of the petition, he has been mentioned as grand

father and pleading is “petitioner has submitted”. This plea of

submission is thus too vague as it does not clarify whether said

document is being annexed with writ petition for first time or

then was also filed before the Scrutiny committee. The family

tree is provided by the petitioner’s father himself during vigilance

enquiry and not in dispute, does not mention name of said

Ganpat Dasru as relative any where. The perusal of statement of

father of the petitioner recorded by Vigilance Cell authorities on

16.7.2003 shows that family of the petitioner shifted to

Bhandara sometimes in the year 1930. Looking to the age of

father of the petitioner and name Soma disclosed as grand

father, we find it impossible to connect this document with the

petitioner. Moreover, looking to the date of birth of said Ganpat

::: Downloaded on – 09/06/2013 17:54:48 :::
36
and passing of IV Standard by him in 1929, again it is not

possible to hold that he had son Soma who could have given

birth to Yadavrao(father of petitioner), 65 years old as on

16.7.2003. Thus this document can not be accepted as relevant

even to examine any link in the light of pleadings in para 5 of

writ petition. The learned counsel for the petitioner has relied

upon the judgment of the Hon’ble Apex Court in the case of

Gayatrilaxmi B. Nagpure vs. State of Maharashtra, reported at

AIR 1996 SC 1338, to urge that as important documents are not

looked into, the consideration by the Scrutiny Committee is

vitiated. The relevant observations noted by the Hon’ble Apex

Court there show that about 17 documents were produced by the

petitioner Gayatrilaxmi and the Hon’ble Apex Court was not

satisfied with the approach of Committee towards certificate at

Sr. Nos. 5, 7, 10, 13 & 14. In the absence of any attempt on the

part of Government to suspect the correctness or genuineness of

documents produced, the observations made in first judgment in

Kum. Madhuri Patil, in para 14 are then noted in this judgment.

The Court has to see whether Committee has considered all

::: Downloaded on – 09/06/2013 17:54:48 :::
37
relevant material placed before it and applied to its mind to

relevant facts. Here, we are not in a position to find any fault

with the application of mind by the Scrutiny Committee. The

production of these two documents before the Scrutiny

Committee or their relevance and possible impact has not been

established & sufficiently demonstrated so as to enable us to take

a view as in Gayatrilaxmi-(supra). In any case, the Scrutiny

Committee has looked into old documents and how that

consideration is or gets vitiated because of these two documents

has not been demonstrated. Thus, mere non consideration

itself, even if it is to be presumed that such documents were

produced, in present facts, is not sufficient to help the petitioner.

22 The Vigilance Cell has, in fact, while conducting field

enquiry, recorded the statement of father on the very first date

i.e. on 16.07.2003. He has stated that his father i.e. grand father

of present petitioner was illiterate. The native place (Takli) was

required to be left in 1930 because of flood. He has also given

the family tree. Yadavrao has given name of his grand father as

::: Downloaded on – 09/06/2013 17:54:48 :::
38
Jagan. When undated document showing name of Ganpat Dasru

is viewed in this background, the case of the petitioner appears

to be doubtful. In fact, Scrutiny Committee has alleged

deliberate attempt to mislead. We find substance in this

contention because in para 12 of the petition, the claim has been

made that father was not examined by vigilance cell and it is

found to be incorrect by us. The grievance about non

examination of uncle is also made but then the petitioner has not

given any reasons why he could not examine uncle as his

witness. In para 12 of the petition, he has stated that he was

appointed as workshop attendant in the year 1997 and Act No.

23 of 2001 being prospective in nature, the Scrutiny Committee

has no jurisdiction to verify caste claim. In para 21 at page 14

again, it is contended that if services of the petitioner are not

protected, he would suffer irreparable loss. In para 19, he has

mentioned that he has completed 16 years of service and the

principle to protect services in such circumstances is settled by

various judgments of the Hon’ble Supreme Court and High Court

as also by Government Resolutions dated 15.06.1995,

::: Downloaded on – 09/06/2013 17:54:48 :::
39
24.07.1998 and 04.09.2000. It thus appears that by producing a

document not connected with him and by making such irrelevant

& irresponsible allegations, the petitioner has attempted to

mislead this Court. The petitioner was aware of the remark of

the research officer and had full opportunity to prove traits &

establish affinity. Without taking these steps to discharge burden

on him, petitioner has only raised roving pleas of too technical

nature in an attempt to continue to usurp the status by

misleading this Court.

23 The judgment of the Hon’ble Apex Court in the case

of Madhuri Patil vs. Additional Director, Tribal Development,

(supra) contemplates a Committee of three officers and in case

of Scheduled Caste, another officer who has intimate knowledge

in the verification and issuance of the social status certificates, is

prescribed. In the case of Scheduled Tribes candidate like the

petitioner, the Research Officer who has intimate knowledge in

identifying the tribes i.e. Tribal communities, parts of or groups

of tribes or Tribal communities, is directed to be associated. In

::: Downloaded on – 09/06/2013 17:54:48 :::
40
later judgment in the case of Madhuri Patil vs. Additional

Commissioner, Tribal Development, Thane, (supra) in para 5, the

Hon’ble Apex Court has directed that along with Vigilance Cell,

one Research Officer/ Tribal Development or Social Welfare

Officer would be associated in finding the social status of

eligibility of the officers. After this later judgment of the Hon’ble

Apex Court, the State Government has added two Research

Officers as members of Scrutiny Committee and as per judgment

in the case of Bharat vs. State of Maharashtra (supra), it is settled

by Division Bench of this Court that Research Officer associated

with Vigilance Cell and one functioning as Member of Scrutiny

Committee are distinct persons. In this connection, Rule 10 of

2003 Rules framed under Act No. 23 of 2001 show Research

Officer as part and parcel of vigilance cell. In Prajakta vs. State

of Maharashtra, (supra), Division Bench of this Court has after

considering this position, concluded that it is not necessary for

this Research Officer to accompany Police Officer to conduct

Police enquiry. This view is reached after considering the view

reached by the learned Single Judge of this Court. The learned

::: Downloaded on – 09/06/2013 17:54:48 :::
41
Single Judge in the case of Chhaya Namdeorao Binekar vs. State

of Maharashtra, (supra) held that Vigilance Cell enquiry need not

be strictly in accordance with exact words contained in Direction

No. 5 in Madhuri Patil’s judgment. The direction of the Hon’ble

Apex Court is held by the Division Bench in para 14 to be

fulfilled when the Research Officer functions as one of the

Members of the Committee.

24 In Prajakta vs. State of Maharashtra, (supra),

Division Bench that as per subsequent judgment in the case of

Kumari Madhuri Patil Vs. Additional Commissioner, Tribal

Development, Thane and others (Second), along with the

Vigilance Cell, one Research Officer/Tribal Development or

Social Welfare Officer would be associated in finding the social

status of eligibility of the officers. It then notices important

observations of Hon. Apex Court in the case of Director of Tribal

Welfare, Government of A.P. Vs. Laveti Giri and another, reported

in 1995 (4) SCC 32 where while reiterating the guidelines in

Madhuri Patil’s case, Hon. Court has observed in paragraph 8 :

::: Downloaded on – 09/06/2013 17:54:48 :::
42

“While reiterating the above guidelines to be workable

principles, it is high time that the Government of India should have

the matter examined in greater detail and bring about a uniform

legislation with necessary guidelines and rules prescribing penal

consequences ——……….—– ——plain/spurious persons could be

prevented.”

This Division Bench finds that the guidelines issued

by the Apex Court are in the nature of “workable principles”.

Government Resolutions dated 07.03.1996, 15.03.1996 and

14.07.1997 by State Government are found issued in the light

of modifications suggested by the Apex Court in the case of

Kumari Madhuri Patil. It then notes the observations made by

the learned Single Judge in paragraphs no.25 to 29 in the case of

Chhaya Namdeorao Binekar Vs. State of Maharashtra & others,

(supra) after noticing the relevant words in paragraph No.5 as

given by the Apex Court, & reproduces following observations of

learned Single Judge as under:

“In my view, since the State of Maharashtra has
not specifically given effect to this part of direction No.5 of

::: Downloaded on – 09/06/2013 17:54:48 :::
43
the Supreme Court in its Government Resolutions, as
reproduced hereinabove and in its wisdom, it has left the

manner of its investigation to be carried out by the vigilance

cell to be an open question. The manner of investigation need
not be strictly in accordance with the exact words of the
Supreme Court as reproduced hereinabove and that merely

because the investigation is not carried out strictly in
accordance with the wordings of the Supreme Court referred

to hereinabove, that by itself would not vitiate the final order
of the Caste Scrutiny Committee, which would be

subsequently passed after giving full opportunity to a

claimant the petitioner to put forward his case regarding his
caste, to receive the copy of the vigilance cell report with all
annexures and even to point out the lacuna, if any, in the

vigilance cell report and its enclosures, before the Scrutiny

Committee. This, however, would not mean that the vigilance
cell has a licence to carry out an investigation which is
slipshod, negligent or unfair.”

It also finds that the Learned Single Judge has held

that the aggrieved caste certificate holder has sufficient

safeguards after vigilance inquiry. The Division Bench has then

reproduced the situations in which learned Single Judge has held

::: Downloaded on – 09/06/2013 17:54:48 :::
44
that the ultimate order of the Scrutiny Committee would not be

vitiated. Those are:–(a) If the Research Officer did not

accompany the Police Officer to the actual field of investigation.

(b) That the investigation of the vigilance cell need not be

strictly in accordance with the relevant words as contained in

direction No.5 and as reproduced above.(c) There can be

flexibility in the manner in which the investigation should be

carried out as long as the investigation is not slipshod, negligent

or unfair. These observations of the learned Single Judge have

been approval in a case decided by the Division Bench of this

Court in the matter of Sangeeta Balayya Bhurewar Vs. State of

Maharashtra & others, reported in 2003 (5) Mh.L.J. 645,

wherein said Division Bench has observed:-

“Though the learned Single Judge was dealing
with the situation regarding non compliance of direction
No.5, whereby the investigation in the social status of the

candidate was not done, the learned Single Judge found that
such non compliance cannot vitiate the finding recorded by
the Committee. We respectfully concur with the view taken by
both the Single Judges in the judgments referred to above.”

::: Downloaded on – 09/06/2013 17:54:48 :::
45

It also takes note of the fact that the same view of

reiterated by the Division Bench of this Court in Writ Petition

No.1930/2003, decided on 08.07.2003. In 2002(supp-2) Bom.

C.R. 268–Ramatai Madhukarrao Tapre vs. State Of Maharashtra,

learned Single Judge of this Court followed view in Chhaya

Namdeorao Binekar vs. State of Maharashtra, (supra) & also held

that research officer is not required to conduct field investigation

along with vigilance cell police officer.

25 Division Bench judgment in the case of Deorao G.

Umredkar vs. State of Maharashtra, reported at 2007 (5) BCR

629 relied upon by Adv. Kaptan, holds in paragraph 30 after

referring to judgment in Madhuri Patil that Research Officer is to

be associated as an expert and he is not bestowed with any

exploratory or investigative role. He has only consultative

character and entire report of vigilance cell is only an opinion

which does not bind the scrutiny committee. This Division Bench

holds him an “aide” who steps in after completion of exploration

& investigation by vigilance cell. His role is found not that of an

::: Downloaded on – 09/06/2013 17:54:48 :::
46
adjudicator. Thus it is already held by this Court that research

officer is not required to record his opinion through a reasoned

order with objective analysis. Bharat vs. State of Maharashtra

(supra) also does not lay down any such law.

Three unreported judgments relied upon by Adv.

Narnaware now need brief consideration. W.P. 2136 of 2011,

5340 of 2010 and other connected petitions decided by the

Division Bench at Aurangabad on 25/8/2011 consider validity of

a condition no.7 which denied appointment or promotion to

candidate whose caste claim was under consideration of scrutiny

committee. Petitioners assailed it as contrary to S.6(3) of Act 23

of 2001 & also directions in Madhuri Patil. State Government

attempted to justify it in public interest. Condition was held

unreasonable & set aside after noticing impossibility of

verification of caste within reasonable time due to large

pendency and S. 10 of said Act. Unreported judgment in W.P.

8413 of 2008, 260 of 2009 with other matters decided on

1/9/2009 at Bombay considered the issue whether one A.V.

Hankare, member & research officer was competent to act on

::: Downloaded on – 09/06/2013 17:54:48 :::
47
committee. This person was nominated to complete quorum due

to promotion of research officer Shri Shaikh. Division Bench has

noted that the committee was formed due to directions of Hon.

Apex Court in Madhuri Patil and it was not pointed out how Shri

Hankare was found eligible . The challenge was thus upheld.

Unreported judgment dated 20/7/2011 in W.P. 5332 of 2004

delivered by Division Bench at Nagpur (to which one of us viz. J.

B.P. Dharmadhikari is party) considers a case where the vigilance

cell report was in favour of petitioner and though claim of a

scheduled tribe candidate was being looked into, research officer

was found not associated with vigilance inquiry. There, on facts,

inconsistent position about such association appearing on record

after comparing original report with its copy supplied to

petitioner is noted by this Court. Apart from this other lacunae

having bearing on compliance with principles of natural justice

are also found. This case nowhere speaks of field inquiry by the

research officer. Thus these three unreported judgments have no

relevance in present matter. The Circular dated 06.09.2000

relied upon by petitioner also does not spell out any field

::: Downloaded on – 09/06/2013 17:54:48 :::
48
enquiry by a Research Officer.

26 The Scrutiny Committee has heavily relied upon the

unreported judgment dated 12/08/2011 of Division Bench of

. 107/2010 . There the contention
this Court at Aurangabad in W.P

that Scrutiny committee was not constituted as per notification

dated 23/6/2003 issued under S. 6 of Act no. 23/2001 has been

examined & thus question of violating the principles laid down in

Madhuri Patil did not arise. Said notification appointed the

Commissioner/Director for Tribal Research & Training Institute,

Pune as Chairman and he was not present to decide. The quorum

prescribed was 3 & there was no grievance of its breach. The

qualification for appointment to the post of Senior Research

Officer are prescribed by Rule 3 of notification dated 16/5/2006

and challenge was to appointments of one D.P. Jagtap as senior

research officer and M.G. Navghare as research officer. Both of

them were the members of scrutiny committee. The Division

Bench has found that both these persons were not possessing

requisite qualification. In this background, defence of De facto

::: Downloaded on – 09/06/2013 17:54:48 :::
49
doctrine by Scrutiny Committee & judgment in The State of

Haryana vs. The Haryana Cooperative Transport Ltd. & Others

AIR 1997 SC 237 has been considered. Division Bench notices

that said doctrine requires an intruder who attempts to to

perform the duties of an office without authority of law &

without support of public acquiescence. His acts are not allowed

to be questioned except by some direct proceedings instituted for

the purpose by the State or by somebody claiming the office de-

jure or except when the person himself attempts to build up

some right or claim some privilege or employment by reason of

being the officer which he claims to be. The finding by Hon.

Apex Court that merely because writ of quo-warranto is not

sought in writ petition, it can not be urged that appointment

was challenged collaterally in a proceeding to challenge the

award is also noted. In this light, though the Division Bench

found appointments of Jagtap & Navghare illegal, it also found

that these two persons were not usurpers of the post and they

were issued appointment orders, albeit without authority of law.

The Division Bench therefore in paragraph 20 of its order has

::: Downloaded on – 09/06/2013 17:54:48 :::
50
remarked that decision of committee needed acceptance unless it

was found bad on some other ground. On merits, said Bench at

Aurangabad has found the decision vitiated as vigilance inquiry

there was conducted only by police officer and questions put to

find out affinity regarding sociological traits & characteristics

were not recorded by vigilance cell. Earlier Division Bench in

Ashwini Anil Chavan vs. State of Maharashtra reported at

2006(4) Mah. L.J. 415 which holds such record essential to

ascertain proper use of affinity test has been relied upon. This

Division Bench considers the order of Scrutiny Committee dated

15.10.2005 & observes that said committee has to apply its mind

to the report of research officer. In writ petition before us,

petitioner Ajaykumar has not led any evidence before the

Scrutiny Committee to establish affinity though he was aware of

the adverse opinion of Research Officer. Moreover, before this

Court also, there is no effort to demonstrate how said opinion of

Research Officer is incorrect. Moreover, the Scrutiny Committee

has independently considered the data collected by vigilance cell

and concluded that the knowledge of traits & characteristics

::: Downloaded on – 09/06/2013 17:54:49 :::
51
were mentioned due to knowledge gathered from literature. His

contention that caste recorded as “Koshti” in documents was not

really caste but profession is also rejected. This application of

mind by Scrutiny Committee is not shown to be perverse.

27 Consideration by the Hon. Apex Court of scheme of

Kerla (Scheduled Castes and Scheduled Tribes) Regulation of

Issue of Community Certificates Act, 1996 in L. Ushadevi vs.

Union of India, (supra) fully supports the contention that Act No.

23 of 2001 enacted by State of Maharashtra is a complete code.

The Hon. Apex Court has also held that Kerla Act is applicable to

employees of central government.

In another important judgment AIR 1997 S.CO. 2046

Director of Tribal Welfare v. Laveti Giri” D/- 10 -3 -1997; Hon.

Apex Court considers A.P. Scheduled Castes, Scheduled Tribes

and Backward Classes Rules for Issue of Community Certificates

Rules (1997) (Draft Rules) under A.P. (Scheduled Castes,

Scheduled Tribes and Backward Classes) Regulation of Issue of

Community Certificate Act (16 of 1993), and finds that said

::: Downloaded on – 09/06/2013 17:54:49 :::
52
Rules are substantially in conformity with directions issued by it

in that behalf. As we are concerned with composition of Scrutiny

Committee in this writ petition, it is important to note how Hon.

Apex Court has considered the said aspect as far as Andhra

Pradesh Rules are concerned.

“4. Rule 7 provides for constitution of Scrutiny and Review

Committee at the State Level and Rule 8 deals with Scrutiny

Committee at the District Level. They are as under :

“Rule 7. Scrutiny and Review Committee (State level):

A Scrutiny and Review Committee shall be constituted at the State
Level with the following officers :

a)

1) Principal Secretary to Government Social Welfare Department.

   



           -  Chairman
     2)    Commissioner, Social Welfare -             Member





     3)    Commissioner, Tribal Welfare -             Member
     4)    Commissioner, Welfare of Backward Classes. -                Member
     5)    Inspector General of Police, C.B.C.I.D. (P.C.R. and Vigilance  





           Cell). -       Member
     6)    Additional Secretary/Joint Secretary/Deputy Secretary to the  
           Government Social Welfare Department. -                     Member 
           (Convenor)




                                                    ::: Downloaded on - 09/06/2013 17:54:49 :::
                                            53
     b)    This Scrutiny and Review Committee shall meet one in three 

months or as often, depending on the necessity.

c) Presence of three members will form the required quorum for

the meeting of the Committee.

            d)     This   Committee   shall   review   and   monitor   the  
            functioning of       the   Scrutiny   Committees   at   the   District  




                                                    
            level (constituted         under   Rule   8),   it   shall   render  

necessary advice to the Government on various policy

decisions to be taken for streamlining the procedures or on
any other issues related to the issuing of Community

Certificates as per Act 16 of 1993.

e) The Committee may also render necessary guidance and
advice to the Government on cases referred to it, where
divergent and conflicting enquiry reports are received by the

Government, in respect of the community claims.

Rule 8. Scrutiny Committee (District Level) :

a) In every District, a Scrutiny Committee shall be constituted with
the following officers :-

1. Joint Collector – Chairman

2. District Revenue Officer – Member (Convenor)

3. Deputy Director (Social Welfare) – Member

Deputy Director (Tribal Welfare)/District Tribal Welfare Officer.) –
Member
Deputy Director (Backward Classes Welfare)/District Backward
Classes Welfare Officer – Member

::: Downloaded on – 09/06/2013 17:54:49 :::
54

4. Officer of the Research Organisation in the Commissionerate of
SW/TW nominated by the concerned Heads of the Department. –

Member

5. Officer representing the PCR/Vigilance Cell in the District.-
Member”

6. A reading of the Rules would indicate that except some

variation, in the matter of the constitution of Committees, in Rules
7 and 8 from the guidelines issued, all other provisions are in

conformity with the guidelines issued by this Court.”

This judgment needs to be viewed in background of

earlier judgment between parties reported at AIR 1995

S.C.1506– “Director of Tribunal Welfare, Government of Andhra

Pradesh v. Laveti Giri” D/- 18 -4 -1995, where the Hon. Apex

Court has observed:–

“It is, therefore, necessary that the certificates issued

are scrutinized at the earliest and with utmost expedition and

promptitude. For that purpose, it is necessary to streamline the

procedure for the issuance of social status certificates, their scrutiny

and their approval, which may be the following :-”

These 15 directions are not reproduced here as above

::: Downloaded on – 09/06/2013 17:54:49 :::
55
part itself is sufficient to demonstrate its nature as guidelines.

This also becomes clear from observations of Hon. Apex Court

which appear immediately after these guidelines. Hon’ble Apex

Court in this judgment then observes:–

“7. While reiterating the above guidelines to be

workable principles, it is high time that the Government of

India would have the matter examined in greater detail and

bring about a uniform legislation with necessary guidelines

and rules prescribing penal consequences on persons who

flout the Constitution and corner the benefits reserved for the

real tribals etc. etc. so that the menace of fabricating the false

records and to gain unconstitutional advantages by plain /

spurious persons could be prevented. Lest they would defeat

the Constitutional objective of rendering socio-economic

justice envisaged under Article 46 in the Preamble of the

Constitution under Articles 14, 15, 16, 38 and 39.”

28 The dispute whether directions in Madhuri Patil-

(supra) are mandatory or not is already settled by this Court

::: Downloaded on – 09/06/2013 17:54:49 :::
56
after noticing that Hon. Apex Court itself held it to be “working

principles” or “guide lines”. But then whether petitioner’s effort

to work out a legal injury by alleging inconsistency between the

statutory notification under S. 6 of Act 23 of 2001 & these

directions of Hon’ble issued when the field was unoccupied,

holds any water or not also needs to be gone into. Act no.23 of

2001 came into force with effect from 18/10/2001. State

Government constituted Committee as required by S. 6 thereof

for Nagpur area vide notification dated 4/6/2003. It consists of 5

members & the Commissioner/Director for Tribal Research &

Training Institute, Pune is the Chairman of this Committee while

Additional Commissioner, Tribal Development,Nagpur was its

Vice-Chairman. Deputy Director (Research) is its member-

secretary. Senior Research officer & Research Officer are its

members. On 12/7/2006, by another notification State has

effected slight change in this composition & substituted Joint

Commissioner, Nagpur as its Vice-Chairman. Committee

constituted on 9/9/1999 consisted of Director for Tribal

Research & Training Institute, Pune as Chairman, Additional

::: Downloaded on – 09/06/2013 17:54:49 :::
57
Commissioner, Tribal Development as its Vice-Chairman, Deputy

Director (Research) is its member-secretary & Two Research

officers also were its members. Notifications issued under S. 6 of

Act no. 23/2001 do not refer to this 1999 notification or to

judgments of Hon. Apex Court in Madhuri Patil’s cases. Said

Enactment also does not contain any such reference. It is

apparent that Act no. 23 of 2001 is therefore issued in exercise of

its legislative powers under Constitution of India by State

Legislature and its competence to do so or then validity of said

exercise is not in dispute before us. There are no such prayers or

arguments advanced by petitioner. S.2(k) of the Act defines

Scrutiny Committee as constituted under sub-section(1) of S.6.

Section 6 confers absolute powers upon State to constitute such

Committee and even that provision is not assailed before us. Adv.

Kaptan & Adv. Patil have advanced arguments before us to assail

attempt made by petitioner to co-relate & compare constitution

of S. 6 Committee with Committee functioning earlier as per

directions of Hon. Apex Court in Madhuri Patil’s matters.

Petitioner has not even attempted to meet their attack. Whether

::: Downloaded on – 09/06/2013 17:54:49 :::
58
an otherwise valid enactment which comes into force later on

can be scrutinized in the light of “workable principles” in

judgment delivered when that field was unoccupied is therefore

the issue that arises in this situation.

29 Precedents on validity of law enacted to get over the

judgments of a Court hold an answer to this issue. Hon. Apex

Court in AIR 1965 S.C. 1887 -“Rajeswar Prasad Misra v. State of

W.B.” , states that its observations can not be read as statutory

enactments. This judgment shows that no doubt, the law

declared by Apex Court binds Courts in India but it has directed

to remember that it does not enact. The Code of criminal

procedure contemplates that a retrial may be ordered after

setting aside the conviction or acquittal if the trial already held

is found to be unsatisfactory or leads to a failure of justice. The

Legislature has not chosen to indicate the limits of the power of a

Court in Cr.P.C. and this precedent shows that it (Hon. Apex

Court) must not be understood to have laid them down &

illustrations in its previous judgments are stated to be not

::: Downloaded on – 09/06/2013 17:54:49 :::
59
exhaustive. In AIR 1976 S.C. 2250 “I. N. Saksena v. State of M.P.”,

Hon. 4 Judges bench of Apex Court lays down that the validity of

a validating law is to be judged by applying three tests. Firstly,

whether the legislature possesses competence over the subject-

matter, and secondly, whether by validation the legislature has

removed the defect which the Courts had found in the previous

law and thirdly, whether it is consistent with the provisions of

Part III of the constitution. Applying these tests it held that the

provisions of Sections 2 and 5 of M. P. Shasakiya Sevak Anivarya

Sevanivritti Ka Vidhimanyata Karan Adhiniyan (5 of 1967) are

valid & not an encroachment on judicial power. Hon. Court has

pointed out that the distinction between a “legislative” act and an

“judicial” act is well known, though in some specific instances the

line which separates one category from the other may not be

easily discernible. Hon’ble Court states that an adjudication of

the rights of the parties according to law enacted by the

legislature is a judicial function. In the performance of this

function, the Court interprets and gives effect to the intent and

mandate of the legislature as embodied in the statute. On the

::: Downloaded on – 09/06/2013 17:54:49 :::
60
other hand, it is for the legislature to lay down the law,

prescribing norms of conduct which will govern parties and

transactions and to require the Court to give effect to that law. It

also clarifies that while, in view of this distinction between

legislative and judicial functions, the legislature cannot by a bare

declaration, without more, directly overrule, reverse or override

a judicial decision, it may, at any time in exercise of the plenary

powers conferred on it by Article 245 and 246 of the

Constitution render a judicial decision ineffective by enacting a

valid law on a topic within its legislative field fundamentally

altering or changing retrospective, curative or neutralizing effect

the conditions on which such decision is based. The rendering

ineffective of judgments or orders of competent Courts and

tribunals by changing their basis by legislative enactment is a

well known pattern of all validating Acts. Such validating

legislation which removes the causes for ineffectiveness or

invalidity of action or proceedings is not an encroachment on

judicial power. Shri Patil has relied upon AIR 2005 S.C. 3446

State Bank’s Staff Union (Madras Circle) v. Union of India” where

::: Downloaded on – 09/06/2013 17:54:49 :::
61
“I. N. Saksena v. State of M.P.”(supra) has been followed to state

that the Legislature cannot by a mere declaration, without

anything more, directly overrule, reverse or override a judicial

decision. However, it may, at any time in exercise of the plenary

powers conferred on it by the Constitution render a judicial

decision ineffective by enacting a valid law on a topic within its

legislative field, fundamentally altering or changing with

retrospective, curative or neutralizing effect the condition on

which such decision is based. Whenever any amendment is

brought in force retrospectively or any provision of the Act is

deleted retrospectively, in this process rights of some are bound

to be effective one way or the other. In every case the exercise by

legislature by introducing a new provision or deleting an existing

provision with retrospective effect per se does not amount to

violation of Art. 14 of the Constitution. The legislature can

change the basis on which a decision is given by the Court and

thus change the law in general, which will affect a class of

persons and events at large. As laid down by Hon. Apex Court,

such legislation cannot, however, set aside an individual decision

::: Downloaded on – 09/06/2013 17:54:49 :::
62
inter parties and affect their rights and liabilities alone. Such an

act on the part of the legislature amounts to exercising the

judicial power by the State and to function as an appellate Court

or Tribunal, which is against the concept of separation of powers.

Recently in AIR 2010 S.C. 3143 -“A. Manjula Bhashini v. M.D.,

A.P. Women’s Co-op. Finance Corpn. Ltd.“, Hon’ble Apex Court has

held that the language of first proviso to S. 7 of A.P. (Regulation

of Appointments to Public Services and Rationalisation of Staff

Pattern of Pay Structure) Act (2 of 1994), by which the policy of

regularization was engrafted in the 1994 Act revealed that the

amendments were made with the sole object of removing the

ambiguity in the policy contained in G. O. dated 22-4-1994 and

the same were not intended to nullify or override the judgment

in (1998) 2 Andh LT 5 (SC). It found that policy of

regularization as contained in first proviso to S.7 of Act No. 27 of

1998 is one time measure intended to benefit only those daily

wage employees, who completed 5 years continuous service on

or before 25-11 1993 & employees who completed 5 years

service after 25-11-1993 cannot claim regularization. S.7A

::: Downloaded on – 09/06/2013 17:54:49 :::
63
providing of abatement of claims arising under any Government

order, judgment, decree or order of any Court, Tribunal or other

authority was held not an encroachment on Court’s power of

judicial review.

30. These judgments of Hon’ble Apex Court, therefore,

show that an error or lacuna judicially noticed and resulting in

vitiation of a legislation can be cured by a proper legislation. It is

obvious that the legislature always intended to enact a valid law

within four corners of its powers and Hon’ble Apex Court has

found that such factors vitiating it can always be rectified by the

legislature even retrospectively. Thus when an adjudication can

be avoided by competent legislation, here where there was no

legislation at all, it can not be perceived that Hon. Apex Court

while issuing various directions in its judgments in Madhuri Patil

(supra) wanted State Legislature not to exercise its plenary

powers under schedule VII or then expected it to exercise the

same in particular manner. Its no doubt true that in view of

unique position of Hon’ble Apex Court in constitutional set-up of

::: Downloaded on – 09/06/2013 17:54:49 :::
64
this Country, such directions need to be given due importance &

consideration by State Legislature. The same are obviously

guidelines to control exercise of a power which otherwise may

appear un-canalized. However, merely because State Legislature

has in exercise of its constitutional powers enacted a law in

particular manner or even little differently than said “workable

principles”, it can not be labeled as unconstitutional or bad as it

does not cease to be law under schedule VII of the Constitution

of India or then it does not violate any constitutional safeguards.

Three tests laid down by the Hon’ble Apex Court & noted above,

when applied here, do not lead to any such finding of invalidity

of Act no. 23 of 2001. The Hon’ble. Apex Court has only

recognized need to have a uniform legislation but has not issued

any mandate to legislate and, normally, Courts may not issue

such a direction or a direction to adopt particular scheme in

proposed Statute. Hence, effort undertaken by petitioner to show

violation of the “workable principles” by a valid State Enactment

is itself misconceived. Said effort, however, was bound to

succeed had the field still remained unoccupied.

::: Downloaded on – 09/06/2013 17:54:49 :::
65

31. Though it is argued by learned Counsel for petitioner

that 2003 Rules framed by State of Maharashtra under Act no.

23 of 2001 have not been placed before Hon. Apex Court & its

approval has not been obtained as in AIR 1997 S.CO. 2046

Director of Tribal Welfare v. Laveti Giri” D/- 10 -3 -1997; no

direction of Hon. Apex Court or any other law obliging State to

do so has been pointed out. This 1997 judgment is in the

backdrop of its 1995 judgment at AIR 1995 S.C. 1506 “Director

of Tribunal Welfare, Government of Andhra Pradesh v. Laveti

Giri“(supra), where after considering the serious problem &

usurption by spurious candidates, (same Hon’ble. Judges who

decided Madhuri Patil) Hon’ble Court has observed– “After falsely

gaining entry, resort to dilatory tactics and create hurdles in

completion of the inquiries by the Scrutiny Committee. It is the

parent or the guardian who may play fraud claiming false status

certificate of his child. It is, therefore, necessary that the

certificates issued are scrutinized at the earliest and with utmost

expedition and promptitude. For that purpose, it is necessary to

streamline the procedure for the issuance of social status

::: Downloaded on – 09/06/2013 17:54:49 :::
66
certificates, their scrutiny and their approval, which may be the

following”. Nature of these guidelines is already narrated by us

above. In this situation, when there is no challenge to

constitutionality of Act no. 23 of 2001 and directions issued by

Hon. Court are only “workable principles” which do not in any

way eclipse the legislative powers of State, We do not find any

merit in the petitioner’s challenge to composition of Scrutiny

Committee.

32. Moreover, here affidavit filed on behalf of respondent

2 Scrutiny Committee denying the assertion of petitioner about

its composition. The scrutiny Committee has pointed out S. 6 of

Act no. 23 of 2001 as its source and hence, non-applicability of

guidelines in Madhuri Patil. It has also pointed out absence of

pleadings in writ petition to enable this Court to undertake

scrutiny into its composition. Without prejudice, it is pleaded on

affidavit that Commissioner/Director for Tribal Research &

Training ,Pune who is Chairman of the Committee is an IAS

officer in the rank of Joint Secretary. Second Member of the

::: Downloaded on – 09/06/2013 17:54:49 :::
67
Committee i.e. Additional Commissioner is disclosed to be the

person of the rank of Director of Tribal Welfare. Hence, in matter

before us, constitution of the committee can not be said to be

even contrary to direction number 4 in Madhuri Patil’s judgment

of Hon’ble Apex Court. We also note that petitioner has not

raised any objection to the composition of Scrutiny Committee at

the earliest before the Committee itself or then before the State

Government. On the contrary, he participated in its proceedings

effectively & took efforts to have an adjudication in his favour. It

is also not his case that during any of the hearings there was no

quorum. Quorum is explained in paragraph 7 of its judgment in

The Punjab University, Chandigarh vs. Vijay Singh Lamba & Ors,

(supra) by Hon’ble Apex Court to mean the number of persons

adequate to validly transact business of any body. Here, there is

no effort to even urge that the business transacted by the

Scrutiny Committee was vitiated on any count. We therefore find

that doctrine of de-facto is also attracted in present case. The

Chairman of the Scrutiny Committee,even if held to be not of

rank expected by Hon’ble Apex Court, it is not sufficient to vitiate

::: Downloaded on – 09/06/2013 17:54:49 :::
68
otherwise valid adjudication here. The Scrutiny Committee

which has passed impugned order consisted of an officer of the

rank of joint secretary, other two highly placed officers & two

research officers. Hence, in the absence of any arguments of

resulting prejudice, even if contention of petitioner is presumed

to be true, still the above doctrine dis-entitles him to any relief.

The State of Haryana vs. The Haryana Cooperative Transport Ltd.

& Others (supra) unreported judgment dated 12/08/2011 of

Division Bench of this Court at Aurangabad in W.P. 107/2010

apply with full vigour. Even otherwise, We have already noticed

that he has not approached this Court with clean hands & his

blameworthy conduct is itself sufficient to deny him the relief.

This is not the matter where by picking up some lacuna here &

there, and without pointing out its impact on consideration of

merits of controversy by a Scrutiny Committee, the petitioner

can hope to continue to enjoy that status to which he is not

legally entitled. Petitioner who failed to discharge the basic

burden to establish his caste claim by producing relevant

material has attempted to throw entire burden on State

::: Downloaded on – 09/06/2013 17:54:49 :::
69
Government and by abusing the process succeeded in securing

second term for himself. Since we are not taking a view different

than any binding precedent in the matter,there is no scope for

reference to larger bench. The necessary facts are pleaded are

placed by the Scrutiny Committee & hence, reference to other

judgments cited before us is not called for.

33.

We accordingly find no merit in the matter and writ

petition is dismissed. Rule is discharged. However, in the facts

and circumstances of the case, there shall be no orders as to

costs.

JUDGE JUDGE

At this stage, Shri Narnaware, learned counsel for the

petitioner seeks continuation of interim order, which is already

operating, for a period of six weeks. Shri Patil, learned counsel

for respondent No.2 points out that here the question is of

::: Downloaded on – 09/06/2013 17:54:49 :::
70
continuation on a post of Municipal Councillor.

In the interest of justice, we continue the interim

orders already operating for a period of six weeks from today.

The same shall cease to operate automatically after expiry of the

said period.

                JUDGE                                       JUDGE 
                   

                                     *******
      
   



     *GS./
     dragon






                                                  ::: Downloaded on - 09/06/2013 17:54:49 :::
 

Meshram vs 4] Director on 9 November, 2011

Bombay High Court
Meshram vs 4] Director on 9 November, 2011
Bench: B. P. Dharmadhikari, A. B. Chaudhari
                                     1




                                                                     
     IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR 
                       BENCH NAGPUR.




                                             
             WRIT    PETITION     NO.    317    OF     1997   




                                            
    Hemantkumar Sadashivrao




                                   
    Meshram, aged 34 yrs., Occu.
    Instructor, c/o P. L. Suryawanshi 
                     
    at & Post Jambhulghat, Tah 
    Chimur, Distt. Chandrapur.                            PETITIONER.
                    
                                   VERSUS
      
   



    1] The State of Maharashtra,
    thr. Its Secretary, Higher &
    Technical Education & Employment
    Department, Mantralaya, Extension





    Building, Mumbai. 

    2] The Deputy Director, Vocational
    Education & Training, Regional
    Office, Civil Lines, Nagpur.





    3] Principal, Nehru Junior College,
    Chimur,m Distt. Chandrapur.

    4] Director, Vocational Education
    & Training, 3, Mahapalika Road,
    Mumbai.                                               RESPONDENTS.

::: Downloaded on – 09/06/2013 17:54:36 :::
2

Shri. Anil Mardikar, Counsel for the petitioner.

Smt. K. S. Joshi, AGP for the respondents 1, 2 & 4.

CORAM: B. P. DHARMADHIKARI &
A.

B. CHAUDHARI JJ.

Date: 9th NOVEMBER 2011.

ORAL JUDGMENT: (Per B.P. DHARMADHIKARI J.)

Heard Shri Mardikar, learned counsel for the petitioner

and Smt. Joshi, learned AGP for respondents 1, 2 and 4. No body

has appeared for respondent no. 3 though served.

2] Shri Mardikar learned counsel at the out set points out

that one of the prayer in the petition is to direct the respondent

no. 3 to pay to petitioner his salary from May 1995 till the date of

filing of petition and to continue to do so during its pendency.

However, he fairly pointed out that respondent no. 3 School is

already closed down. It is, therefore, obvious that no such relief

can be given in present writ petition against respondent no. 3

atleast at this stage.

::: Downloaded on – 09/06/2013 17:54:36 :::
3

3] The other contention of Shri Mardikar, learned counsel

for the petitioner is though school is closed down, benefit of

provisions of Rule 25(A) of Maharashtra Employees of Private

Schools (Conditions of Service) Rules 1981, is not extended to

petitioner on the ground that his petition was pending. Petitioner

holds qualification of Diploma in Plant Engineering & on the

strength of this qualification, he was given employment in

respondent no. 3-college as Instructor in 1992 and after almost

three years the respondent no. 2 refused to grant approval on the

ground that he does not possess Diploma in Mechanical

Engineering. He has invited our attention to the fact of filing of

Writ Petition No. 2992 of 1995 before this Court and its

withdrawal on 02.04.1996 as the State Government was then in

process of considering the equivalence of said Diploma with

Diploma in Mechanical Engineering. He has invited attention to

impugned order dated 04.12.1996 passed by State Government to

urge that instead of considering equivalence between two

diplomas, the suitableness of the candidates holding those

diplomas for employment has been looked into and thus there is

failure to exercise the jurisdiction. Our attention is invited to a

::: Downloaded on – 09/06/2013 17:54:36 :::
4

Report submitted by three member Committee on 07.12.1993 in

this respect, holding that both these Diplomas are equivalent.

Learned counsel states that on 25.04.1990, some courses were

recognized as equivalent and on 16.11.1993 petitioner was

informed that issue of equivalence of his Diploma with Diploma in

Mechanical Engineering was still under consideration. In this

background he contends whether two Diplomas were equivalent

or not, needed to be decided on the basis of the Report of the

Committee dated 07.12.1993 and in the light of the syllabus or

course taught therein. Suitability of the candidates passing out to

perform a particular work or type of job could not have been a

decisive test for said purpose.

4] Learned Assistant Government Pleader on the other

hand has relied upon return as filed. She states that the report

dated 07.12.1993 is prepared by Committee not constituted

statutorily or by State Government and therefore State

Government on 26.12.1995, constituted a Committee of 10

experts. Those experts did not find & recommend grant of

equivalence on 09.08.1996 and after evaluating material on

::: Downloaded on – 09/06/2013 17:54:36 :::
5

record, the State Government has issued the communication

dated 04.12.1996. She points out that the recommendation

dated 09.08.1996 by this Committee of 10 experts has been

accepted by the State Government.

5] During arguments learned AGP also sought time to

produce before this Court the letter dated 09.08.1996 and also

Minutes of discussion of said Expert Committee so as to show to

this Court that Committee has looked into all required facets and

relevant material and thereafter has made recommendation

against the petitioner.

6] Shri Mardikar learned counsel for the petitioner has

opposed any adjournment as according to him impugned order

dated 04.12.1996 is passed by State Government and reasons

given therein are only germane at this stage.

7] The perusal of impugned order dated 04.12.1996 shows

that it contains reference to the letter dated 09.08.1996 submitted

by Committee of 10 member experts. Said letter is in fact the

::: Downloaded on – 09/06/2013 17:54:36 :::
6

recommendation of that Committee. Equivalence of Diploma in

Plant Engineering has been considered in Clause (C) of that order

by State Government. State Government has found that there is

major difference between these two courses but the said

difference is noted to be “for the appointment on the posts in the

Government”. The equivalence has been rejected only on that

account.

8] Vide its report dated 07.12.1993 the Committee of

three members has not looked into the purpose for which the

expertise or education secured by student undergoing that course

was to be utilized. It appears to have compared subjects taught

and treatment given to diploma (plant engineering) for future

The report dated 09.08.1996 by the Expert Committee appointed

by State Government is not before this Court. However, contents

of that report are also not relevant at this stage. State

Government has looked into only one aspect i.e. the fitness of

candidate holding diploma in Plant Engineering for appointment

or employment in its other departments. From return as filed &

from impugned order, it seems that the Government has found

::: Downloaded on – 09/06/2013 17:54:36 :::
7

that insofar as such employment is concerned, courses were

materially different and plant engineers were not possessing the

mechanical knowledge in detail so as to enable them to function

in other departments like B&C, Irrigation, MSEB, Water Supply

etc. as supervisors except power plants.

9] We, therefore, find substance in the contention of Shri

Mardikar that purpose to which knowledge was to be put could

not have a decisive factor while ascertaining the equivalence. The

question was of comparison between two courses and the same

could have been decided only by looking at the curriculum taught

and the extent of knowledge imparted during studies in respective

course. How 10 Members Experts Committee has held that there

is no equivalence & what made them to so opine, is not relevant

because the State Government has not accepted or mentioned that

point of difference. Its order dated 4.12.1996 records only one

reason and it has not come to conclusion that two courses cannot

be viewed as equivalent because of any other difference between

the two. Because of this position we find that even if learned AGP

produces Minutes of said committee or Report of the said

::: Downloaded on – 09/06/2013 17:54:36 :::
8

Committee before us, the said document cannot save the

impugned order. The reason given by State Government is very

specific and State Government has viewed the controversy only

through employment point of view in other departments like B&C,

PWD etc. Its order can not be attempted to be justified by

pointing out some other material on record which State

Government itself has found not necessary to be considered.

10] According to Black’s Law Dictionary (9 th Ed.) word

“equivalent”, when used as an adjective, means equal in value,

force, amount, effect or significance. Second meaning given is

“corresponding in effect or function,nearly equal, virtually

identical”. When it is employed as a noun, it means that which

can perform the same function as an other element or substance.

In 2009 AIR SCW 2027 -“Godrej and Boyce Manufacturing Co.

Ltd. v. State of Maharashtra”, Hon. Apex Court has noted its

explanation as “equal in such properties as affect ourselves or the

use which we make of things,such as value” given in Advanced Law

Lexicon-(3rd Ed.-2005) by P. Ramanatha Aiyar. It also finds that

Webster’s Third New International Dictionary defines it as an

::: Downloaded on – 09/06/2013 17:54:36 :::
9

adjective as” 1 : equal in force or amount…..equal in area or

volume but not admitting of superposition (a square – to a

triangle) 2 a : like in signification or import 3 a : equal in value,

compensative. After noticing these meanings, following conclusion

reached by Hon. Apex Court are important. It observes that,

“The last of the above makes the meaning of the

word ‘equivalent’ very clear by explaining it in
contradistinction to the word ‘equal’. It says

equivalent is equal in such properties as affect

the use which we make of things. Seen thus any
of the relevant properties, e.g., value, area,
volume, quantity, quality etc. may form the

basis for determining equivalence.”

One can not forget that in present case, the equivalence is

required to be found out as two courses are not same. In AIR

2008 SC (Supp) 1321 “Basic Education Board, U. P. v. Upendra

Rai“, Hon. Apex Court has declared that grant of equivalence

and/or its revocation is an administrative decision in the sole

discretion of the concerned authority, and the Court has nothing

to do with such matters. The matter of equivalence is decided by

experts appointed by the government, and the Court does not

have expertise in such matters. Hence it should exercise judicial

::: Downloaded on – 09/06/2013 17:54:36 :::
10

restraint and not interfere in it.

11] However, when relevant material is lost site of or

irrelevant material is relied upon, the decision making process

itself gets vitiated. Here, the competency of petitioner to function

as plant engineer in power plants is not in dispute. He is found

not holding qualification equivalent to diploma in mechanical

engineering and hence, he is found unfit to function in any other

department. Job requirements for working as an instructor do not

appear to form basis of application of mind. From return as filed

on record, it appears to be the stand of State Government that

unless he obtains more knowledge in the branch of mechanical

engineering by prosecuting graduate course, he can not be posted

in such other departments. We find the tests applied erroneous.

State Government has not found out whether a diploma holder in

mechanical engineering can function as plant engineer or then a

person like petitioner needs to be given preference for that job or

whether he has any special advantage because of his diploma in

plant engineering and a diploma holder in mechanical

engineering lacks it. State Government has on oath asserted that 3

members of earlier Committee were from academic field & had

::: Downloaded on – 09/06/2013 17:54:36 :::
11

nothing to do with employment in PWD, Irrigation etc. State,

being employer, has claimed right to examine such equivalence.

The capacity to function in its employment , thus appears to be a

decisive factor used by it. But, here petitioner was appointed as

instructor to teach students & question of equivalence has arisen

in that backdrop. If in inquiry into equivalence, concentration

has to be only on one facet, whether it should be centered around

only fitness for employment or it has to be his potential to teach.

Has such application of mind all pervasive. Whether opinion of 3

academic experts was totally irrelevant? Presuming that such

enquiry can be only in respect of any one particular angle,

question is whether ability to teach & learning or knowledge

possessed by such diploma holders and bearing of their respective

diplomas thereon, ought to have been & needs to be also the part

of that investigation by an expert committee in order to find out

that equivalence. This aspect of teaching or its relevance, does not

figure in impugned order at all. Purpose for which such

equivalence is required to be ascertained or object behind that

exercise will definitely determine the nature of norms to be

employed. State Government nowhere finds petitioner

::: Downloaded on – 09/06/2013 17:54:36 :::
12

incompetent or not eligible to teach. Filing of Writ Petition No.

2992 of 1995 before this Court by him and its withdrawal on

02.04.1996 as the State Government was then considering the

issue of equivalence is admitted fact. That concentration has to be

based upon relevant material & test. We, therefore, find enquiry

undertaken by the Sate Government without reference to context

& not in right perspective. This error in impugned exercise can

not be supplemented by producing any records not considered by

the State. The said order or communication therefore, suffers

from non-application of mind & is unsustainable.

12] We, therefore, quash and set aside the order dated

04.12.1996. We direct the respondent no.1 to consider the issue

of equivalence independently, and without any regard to the

purpose for which the knowledge imparted during that course is

to be put. The appropriateness of grant of such equivalence with

employment or its use is entirely a different issue and can not be

the sole deciding factor . State Government may ,in a given case,

say that a candidate with particular qualification is not fit for a

particular job. However, that cannot be a reason to hold in all

::: Downloaded on – 09/06/2013 17:54:36 :::
13

cases, the courses are not equivalent.

13] Hence, we direct respondent no.1 to consider the issue

of equivalence again afresh as early as possible and in any case

within a period of four months from today. Needless to mention

that if the qualification of petitioner is found equivalent to

Diploma in Mechanical Engineering, he will then be free to raise

claim for absorption under Rule 25(A) of the Maharashtra

Employees of Private Schools (Conditions of Service) Rules, 1981

along with claim for salary in accordance with law.

14] Rule is made absolute accordingly. Writ Petition is

thus partly allowed. However, in the circumstances of the case

there shall be no order as to costs. Certified copy be expedited.

                             JUDGE                                 JUDGE



    svk
                                            




                                                      ::: Downloaded on - 09/06/2013 17:54:36 :::
 

Ganpati Dadu Mali vs The State Of Maharashtra on 21 October, 2011

Bombay High Court
Ganpati Dadu Mali vs The State Of Maharashtra on 21 October, 2011
Bench: R. V. More
    SSK/                            1                                WP/1783.90

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   CIVIL APPELLATE JURISDICTION




                                                                    
                  WRIT PETITION NO. 1783 OF 1990
    1. Ganpati Dadu Mali                            )




                                            
       Since deceased through heirs                 )
       1A.Rakhmabai Ganpati Mali,                   )
       1B.Shahaji Ganpati Mali,                     )
       1C.Lalaso Ganpati Mali,                      )




                                           
       1D.Shashikant Ganpati Mali,                  )
       1E.Dilip Ganpati Mali,                       )
       1F.Pralhad Ganpati Mali                      )
    2. Damodar Dadu Mali,                           )




                                 
       All R/o. Madhalmuthi,                        )
       Lengre, Taluka Khanapur,
                      ig                            )
       District Sangli.                             ) ....Petitioners
    Versus
    1. The State of Maharashtra,                    )
                    
    2. Assistant Consolidation Officer No.I,        )
       Vita, District Sangli.                       )
    3. Commissioner for Consolidation and           )
       Director of Land Records, Maharashtra State. )
    4. Dagdu Rama Mali                              )
      


       (Since deceased through heirs)               )
   



       4A) Shilabai Dagdu Mali,                     )
       4B) Popat Dagdu Mali,                        )
       4C) Vishnu Dagdu Mali,                       )
       4D) Ashok Dagdu Mali,                        )





       Respondent Nos. 4A to 4D                     )
       R/o. Madhalmuthi, Post - Lengre,             )
       Taluka-Khanapur, Dist.- Sangli.              )
       4E) Sharadabai Ashok Mali,                   )
       R/o at and Post Taluka Kadegaon,             )
       Dist - Sangli.                               )





    4F.Sushila Atmaram Mali,                        )
       R/o at & Post Devikhindi                     )
       Tal. Khanapur, Dist-Sangli.                  )
    4G.Akkabai Rajaram Mali,                        )
        R/o at & Post Wadiye Raibaug,               )
        Taluka- Kadegaon, District - Sangli.        ) ....Respondents




                                            ::: Downloaded on - 09/06/2013 17:52:41 :::
     SSK/                                 2                                   WP/1783.90

    Shri G. R. Rege with Mr. S. M. Railkar, Advocate for the petitioners.
    Shri A. I. Patel, AGP for respondent nos. 1 to 3.
    Shri S. B. Deshmukh, Advocate for respondent nos. 4A to 4D.




                                                                            
                CORAM                : RANJIT MORE, J.

DATE OF RESERVATION : 4TH OCTOBER, 2011.

                DATE OF PRONOUNCEMENT:     OCTOBER, 2011.

    (ORAL JUDGMENT) :




                                                   

The petitioners by this petition under Article 227 of the

Constitution of India challenges the orders contained in Letter dated

2nd February, 1990 as well as Notice dated 3rd March, 1990 issued

by respondent no.3 and respondent no.2 respectively under the

provisions of the Bombay Prevention of Fragmentation and

Consolidation of Holdings Act, 1947 (hereinafter for the sake of

brevity referred to as “the Act”).

2. The brief facts giving rise to the present petition are as

follows:-

The dispute is about the land, Survey No.349, Hissa No.7

admeasuring 18 gunthas of Village – Lengare, Taluka Khanapur,

District : Sangli, now forms part of Gat No.1316 (hereinafter for the

sake of brevity referred to as “the suit land”). In the Village

Lengare, the Consolidation Scheme under the Act was made

::: Downloaded on – 09/06/2013 17:52:41 :::
SSK/ 3 WP/1783.90

applicable in the year 1970. Notices to the parties under Section

15A of the Act were issued on 8th June, 1970. The Consolidation

Officer recorded statements as agreed by concerned Khatedars on

10th November, 1970. The revised statements of six khatedars

were also recorded on 2nd January, 1971. These statements are

signed by the petitioners’ father as well as respondent no.4. Under

these statements, respondent no.4 who was the holder of the suit

land agreed to transfer the same to the holdings of the petitioners’

father. The suit land was accordingly merged in new Gat No.1316.

In pursuance of these agreements, a draft Scheme was published

on 24th January, 1971. Objections were invited within a period of

30 days. Since no objections were received, the Deputy Director of

Land Records, Pune published Final Scheme on 24th February,

1971. The scheme was executed on 31st March, 1971. Possession

receipts to that effect were obtained from the concerned khatedars.

The revenue records were changed in accordance with

the Final Scheme and lands were placed in the records of the

respective holders. The suit land was recorded in the Khata of the

petitioners’ father. However, at the same time it remained to be

deleted from the Khata of respondent no.4. Respondent No.4

taking advantage of this fact, preferred an application in the year

::: Downloaded on – 09/06/2013 17:52:41 :::
SSK/ 4 WP/1783.90

1973/74. After inquiry, it was directed that the suit land be

removed from Khata of respondent no.4 and be retained in Khata of

the petitioners’ father. Respondent No.4 again applied to the Chief

Minister with request to delete the suit land from the holdings of the

petitioners’ father and to continue the same in the name of

respondent no.4. This application was inquired into by the

Consolidation Officer and by Order dated 3rd May, 1982, respondent

no.4’s application was rejected. Respondent No.4 started

disturbing the possession, and therefore, the petitioners’ father was

compelled to file a civil suit for injunction simpliciter. Interim

injunction was granted in favour of the petitioners’ father. However,

subsequently the suit was dismissed. The petitioners preferred an

appeal and the same is pending in the District Court. In this appeal,

the interim injunction is granted in favour of the petitioners and

against respondent no.4. The said injunction is in operation.

Despite the above position, respondent no.4 made an

application on 28th March, 1983 to the Deputy Director of Land

Records making grievance that injustice was done to him in the said

allotment . He also mentioned that his uncles- Krishna & Laxman,

Khatedars of Khata No.276 did not sign the agreed statements, and

hence, the same was not binding on him. The Settlement

::: Downloaded on – 09/06/2013 17:52:41 :::
SSK/ 5 WP/1783.90

Commissioner without giving any notice to the petitioners in

exercise of his powers under Section 32 of the Act concluded that

deceased Khatedars viz. Krishna & Laxman had not given consent

to the agreed statements, and therefore, directed that the suit land

be allotted to respondent no.4 by removing it from the holdings of

the petitioners. The Settlement Commissioner accordingly, directed

the Consolidation Officer, Sangli to publish Variation Scheme in

Village Lengare and Taluka Notice Board as per Rules. The

petitioners were intimated about this. The petitioners thereafter

gave their objection dated 17th January, 1989. It appears that the

Settlement Commissioner finally confirmed the Variation Scheme

on 12th December, 1989.

3. Mr. Rege, learned counsel for the petitioners submitted

that respondent no.4 had signed the statements dated

10th November, 1970 and 2nd January, 1971. The authorities acted

upon these statements, and therefore, the scheme was finalized

and now it cannot be varied. He also submitted that respondent no.

4’s uncles viz. Krishna Keru Mali and Laxman Keru Mali had

already died 20 years and 16 years prior to recording of the above

statements, and therefore, respondent no.4 could not have

::: Downloaded on – 09/06/2013 17:52:41 :::
SSK/ 6 WP/1783.90

capitalized non-signing of these statements by his said uncles. Mr.

Rege also submitted that respondent no.4’s application making

grievance about the scheme was rejected twice, and therefore, the

Settlement Commissioner could not have entertained the same for

the 3rd time. Mr. Rege lastly pointed out that the order of the

Settlement Commissioner varying the scheme is not only in

violation of the principles of natural justice but also barred by the

Law of Limitation. In this regard, he has relied upon the decisions

of a Division Bench in Gulabrao Bhaurao Kakade (Smt.) since

deceased by his heirs and legal representatives Vs. Nivrutti

Krishna Bhilare & Ors. reported in 2001 (Supp.) Bom. C.R.688

and Dattu Appa Patil & Ors. Vs. State of Maharashtra & Ors.

reported in 2006(6) Bom.C.R.246.

4. Mr. Deshmukh, learned counsel appearing for respondent

no.4A to 4D contested the writ petition by supporting the order

impugned in the petition. He submitted that the original scheme

was defective for the following reasons :

i) The exchange of lands was made without the consent of

the joint owners of Khata No.276.

ii) The original Consolidation Scheme was not executed in

::: Downloaded on – 09/06/2013 17:52:41 :::
SSK/ 7 WP/1783.90

accordance with Rules under the Act, inasmuch as, the

petitioners’ father have not signed the Kabja receipts.

iii) The suit land was retained in the Khatas of the

petitioners’ father as well as respondent no.4, and lastly

iv) The petitioners’ father did not raise any objection to the

Variation Scheme published in the Village-Lengare and

Taluka Notice Board.

On the basis of the above submissions, he asserted that

this Court should not exercise its jurisdiction under Article 227 of the

Constitution of India, and the petition deserves to be dismissed.

5. Mr. Patel, learned AGP appearing for respondent nos. 1

to 3 supported the impugned order by relying upon the affidavit filed

by R. A. Kutkar, Assistant Settlement Commissioner

(Consolidation), Pune. Mr. Patel raised objections somewhat

similar to the one raised by Mr. Deshmukh.

6. Having gone through the compilation of the writ petition

including the impugned orders and having considered the

submissions of the respective counsel, I find merit in the writ

petition. There is no dispute that in the Year 1970 consolidation

::: Downloaded on – 09/06/2013 17:52:41 :::
SSK/ 8 WP/1783.90

proceedings were started in Village Lengare by Assistant

Consolidation Officer No.I, Vita, District-Sangli by giving notices

under Section 15A of the Act. There is also no dispute that the

statements of the concerned Khatedars were recorded by the

Consolidated Officer on 10th November, 1970 and 2nd January,

1971. Initial statement dated 10th November, 1970 is annexed at

Exhibit -1 to the written submission tendered on behalf of the

petitioners. Statement dated 2nd January, 1971 is annexed at

Exhibit “A” to the petition. Both the statements are signed by the

petitioners’ father as well as respondent no.4. Khata No.278

belongs to the petitioners’ father and so far as respondent no.4 is

concerned, he holds two khatas viz. Katha No.61 which he holds

independently and Khata No.276 which he holds along with his two

uncles viz. Krishna & Laxman. The suit land prior to the

introduction of the scheme was shown in Khata No.276 belonging to

joint family of respondent no.4 and his two uncles. Perusal of the

statements makes it abundantly clear that respondent no.4 agreed

to transfer the suit land as well as lands shown in Khata No.276 to

the petitioners’ father and others and in lieu thereof agreed take

land admeasuring about 27 gunthas from Survey Nos. 346/1, 4, 5, 6

& 7 as the same was irrigated land. There is no question of the

::: Downloaded on – 09/06/2013 17:52:41 :::
SSK/ 9 WP/1783.90

consent of respondent no.4’s uncles as both of them expired much

prior to the recording of these statements. Laxman Keru Mali

expired 16 years prior to 1974 and Krishna Keru Mali expired 20

years prior to 1974. Mutation Entry Nos. 120 and 121 are effected

in that regard. The statement as signed by respondent no.4 makes

it unequivocally clear that exchange was made and lands were

consolidated in gat nos. by mutual consent of the concerned

Khatedars.


             The
                       
                    draft   scheme   thereafter    was       published          on

24th January, 1971 and since no objections were received, the same

was finalized on 24th February, 1972. The revenue records were

also changed. However, one mistake remained i.e. the suit land

was shown in Khata of the petitioners’ father as well as respondent

no.4. The suit land ought to have been deleted from the Khata of

respondent no.4. However, inadvertently, the same remained in

respondent no.4’s Khata. Respondent no.4 took advantage of this

fact and preferred an application in the year 1973/74 which was

inquired by the Assistant Consolidated Officer. The Assistant

Consolidated Officer, Vita, District Sangli after verifying the

statements came to the conclusion that the suit land should not

have been retained in Joint Khata No.276 belonging to respondent

::: Downloaded on – 09/06/2013 17:52:41 :::
SSK/ 10 WP/1783.90

no.4 and his two uncles. In order to rectify the scheme, he

proposed variation under Section 31A of the Act. The Deputy

Director of the Land Records sanctioned the variation. Accordingly,

the suit land was deleted from the Joint Khata No.276 of respondent

no.4. Respondent no.4 again made an application to the Chief

Minister on 12th June, 1977. This application was sent to the

Consolidation Officer through Collector. The Consolidation Officer

submitted report to the Deputy Director of Land Records that

variation approved under 31A of the Act will have to be cancelled

and the suit land will have to be retained in Joint Khata No.276

belonging to respondent no.4 and his uncles. This report, however,

was not accepted by the Deputy Director of Land Records and

respondent no.4’s application was rejected on 3rd May, 1982.

Respondent no.4 again made an attempt to change the

record by giving an application on 28th March, 1983 to the Deputy

Director of Land Records. The grievance was the same. The

Deputy Director of Land Records sent this application to the

Consolidated Officer. The Consolidated Officer opined that the

suit land should be retained in Khata of respondent no.4. The

Settlement Commissioner relied upon this opinion. The Settlement

Commissioner on the basis of this opinion passed an Order under

::: Downloaded on – 09/06/2013 17:52:41 :::
SSK/ 11 WP/1783.90

Section 32 of the Act for variation. It is worth to note that this order

under Section 32 of the Act was passed by the Settlement

Commissioner without giving any notice to the petitioners and

behind their back. The Settlement Commissioner failed to consider

that earlier on two occasions, respondent no.4 made similar

attempts, however, he could not succeed. The Settlement

Commissioner varied the scheme. The Settlement Commissioner

exercised the jurisdiction under Section 32 of the Act in the year

1989 i.e.

18 years after finalization of the earlier scheme. The

scheme was varied on the following grounds :

i) The initial exchange of the land under the original

scheme was without the consent of the joint owners of

Khata No.276.

ii) Signature of the petitioners’ father is not there on the

kabja receipt.

Both the grounds on which the scheme is varied are not

sustainable.

7. As stated above, though Khata No.276 is Joint Khata of

respondent no.4 along with his uncles viz. Krishna & Laxman, both

of his uncles expired much prior to the introduction of the

::: Downloaded on – 09/06/2013 17:52:41 :::
SSK/ 12 WP/1783.90

Consolidation Scheme to the village land. Therefore, there is no

question of consent of these Khatedars for exchange of the suit

land. Respondent no.4 was aware of these facts as the intimation

of his uncles death was given by respondent no.4 himself to the

Village Officers, and thereafter, mutation entries were effected on

record. Respondent no.4 with malafide motive made repeated

attempts to grab the suit land. His first two attempts failed.

However, he succeeded in his 3rd attempt. The Deputy Director of

Land Records /Settlement Commissioner failed to verify whether

respondent no.4’s uncles were alive when the original statements

were recorded and exchange of the land was made. They blindly

relied upon the statement of respondent no.4 and passed the order

under Section 32 of the Act.

Another ground of which support is taken by the Deputy

Director of the Land Records and Settlement Commissioner is that

the petitioners’ father has not signed the kabja receipt. This

ground, according to me, is frivolous. The statements where under

the concerned Khatedars agreed to exchange lands are signed by

petitioners’ father and respondent no.4. The draft scheme

thereafter was published and the same was finalized in year 1971

only. Thereafter, possession of the land was handed over by

::: Downloaded on – 09/06/2013 17:52:41 :::
SSK/ 13 WP/1783.90

executing the kabza receipt. The said receipt is signed by

respondent no.4. In these circumstances, non-signing of the said

receipt by the petitioners’ father does not make any difference as

the suit land shown in Khata No.276 originally belongs to

respondent no.4.

8. Mr. Deshmukh, learned counsel appearing on behalf of

respondent no.4A to 4B contested the petition on the ground that

the petitioners have not raised any objection to the proposed

variation under Section 32 of the Act published in the Village-

Lengare and Taluka Notice Board on 8th August, 1989. This

submission is without any merits. This variation was in pursuance

of 3rd application made by respondent no.4 in the year 1983. There

is nothing on record and respondent no.4 also could not point out

that the petitioners or their father were heard while disposing of this

application of respondent no.4. The order came to be passed

behind their back. The only basis as stated above is that

respondent no.4’s uncles did not consent to the exchange of the

lands. When petitioners came to know about the proposed

variation, they preferred an application before the Settlement Officer

on 17th January, 1989. However, they were informed that the

::: Downloaded on – 09/06/2013 17:52:41 :::
SSK/ 14 WP/1783.90

variation scheme is finalized. The Consolidation Officer thereafter

gave notice to the petitioner on 3rd March, 1993 for implementation

of the variation scheme. The petitioners immediately thereafter

came to this Court. In these facts and circumstances, I find that the

submission of Mr. Deshmukh, learned counsel for respondent no.4A

to 4D is without any merit.

9. This takes me to consider the issue of jurisdiction of

respondent no.3 to pass order under Section 32 of the Act for

variation of the said scheme. The Consolidation Scheme was

introduced in Village Lengre in the year 1970. The draft scheme

was published on 24th January, 1971 and since no objections were

received the final scheme was published on 24th February, 1971.

Respondent No.4 filed an application on 28th March, 1983 invoking

provisions of Section 32 of the Act. Respondent No.3 by invoking

powers conferred to him, varied the scheme and thereby the suit

land was directed to be deleted from Khata of the petitioners and

was retained in Joint Khata No.276 belonging to respondent no.4.

Thus, respondent no.3 accepted the variation of the scheme after a

period of 18 years. The Act does not prescribe any limitation for

variation of the scheme. The question whether there is limitation for

::: Downloaded on – 09/06/2013 17:52:41 :::
SSK/ 15 WP/1783.90

variation of scheme fell for consideration before the Division Bench

in Gulabrao Bhaurao Kakade’s case (supra). Paragraph No.6 of

the said judgment makes it clear that no limitation for variation of

the scheme is prescribed under the Act and the same is to be done

within reasonable time. What is the reasonable time, would depend

upon the facts and circumstances of each case. The Division

Bench held that ordinarily exercise of such powers after three years

of finalization of scheme under Section 22 may not be justified. In

this case, the scheme was varied after a period of 15 years.

Therefore, the variation was set-aside. Another Division Bench has

taken a similar view in Dattu Appa Patil’s case (supra). In this

case, the consolidation scheme was varied after 27 years. The

Division Bench held that the exercise of powers by Consolidation

Officer after 27 years is totally unjustified and on that ground alone

the impugned order therein came to be set-aside. In the light of the

ratio of the above judgments of the Division Bench, the respondent

no.3 was grossly unjustified in exercising powers under Section 32

of the Act after a period of 18 years. The variation of the scheme,

therefore, is required to be quashed and set-aside.

::: Downloaded on – 09/06/2013 17:52:42 :::

SSK/ 16 WP/1783.90

9. Before parting with the judgment, it must be mentioned

that the petitioners had filed a suit in the Lower Court for permanent

injunction restraining respondent no.4 from disturbing their

possession in the suit land. In this suit, interim injunction was

prayed and the same was granted by the Trial Court. The suit

ultimately was dismissed on 31st January, 1987, and thereafter,

petitioners filed an appeal and interim injunctions was granted by

the District Court in the year 1987, which is in operation. Thus,

petitioners’ father’s possession is also protected by the Civil Court.

Respondent No.3, in view of the order of the Civil Court could not

have directed the petitioners to handover possession.

10. In the facts and circumstances of the case, the

petition succeeds, and the same is allowed in terms of prayer

clause (b) and (d). However, there shall be no order as to costs.

11. Mr. Deshmukh, learned counsel for respondent nos. 4 A

to 4D at this stage seeks stay of the present order for a period of

six weeks in order to enable his clients to approach the Higher

Court. Mr. Railkar, learned counsel for the petitioners, opposes the

grant of such stay. However, in the interest of justice and in order

::: Downloaded on – 09/06/2013 17:52:42 :::
SSK/ 17 WP/1783.90

to enable the respondents to approach the Higher Court this Order

is stayed for a period of six weeks.

(RANJIT MORE, J.)

::: Downloaded on – 09/06/2013 17:52:42 :::

Shri Ishabhai Jivabhai Jafari vs Jain Enterprises on 19 October, 2011

Bombay High Court
Shri Ishabhai Jivabhai Jafari vs Jain Enterprises on 19 October, 2011
Bench: S.A. Bobde, M.N. Gilani
                                                        1

                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             NAGPUR BENCH AT NAGPUR




                                                                                        
                             Letters Patent Appeal No. 116/2011 in




                                                                
                                   Writ Petition No. 276/2011

            Sadruddin Jivabhai Jafari,
            aged 53 years, Occ. Service, thr. his
            constituted power of attorney holder




                                                               
            Shri Ishabhai Jivabhai Jafari r/o Laxmibai
            Ward, Gondia, Tq.Dist. Gondia.                                      .....APPELLANT

                                   ...V E R S U S...




                                                
     1.     Jain Enterprises, thr. its Proprietor
                            
            Mr. Sunilkumar Ratanchand Jain,
            aged 47 years, Occ. Business.
                           
     2.     Sunilkumar Ratanchand Jain,
            aged 47 years, Occ. Business,

            Both r/o Laxmibai Ward, Gondia,
      

            Tq. Dist. Gondia, thr. his power of
            attorney holder Mohan s/o Ladharam
   



            Prithiani, r/o Sindhi Colony, Gondia,
            Dist. Gondia.

     3.     Pramodkumar s/o Ratanchand Jain,





            aged about 45 years, Occ. Business,
            r/o Civil Line, Gondia, Tq. Dist. Gondia.                           ....RESPONDENTS

     --------------------------------------------------------------------------------------------------------
     Mr. Atul Vastani with Mr. D. V. Mahajan, Advocate for appellant.





     Mr. Anup Parihar, Advocate for respondents.
     --------------------------------------------------------------------------------------------------------

     CORAM:- S. A. BOBDE & M. N. GILANI, JJ.

th
Date of Reserving the Judgment: 27 September, 2011

th
Date of Pronouncing the Judgment: 19 October, 2011

::: Downloaded on – 09/06/2013 17:52:02 :::
2

ORAL JUDGMENT (Per:- S. A. Bobde, J.)

1. Heard. Admit. Taken up for final hearing by consent of the

parties.

2. This appeal is preferred by landlord against order of the

learned Single Judge holding that the lower appellate Court was justified in

holding that the application under Order IX Rule 13 of the Code of Civil

Procedure was not maintainable but remanding the matter to the District

Judge, Gondia to decide the appeal in accordance with law. The suit filed

by the appellant before the Civil Judge Senior Division, Gondia for eviction,

possession and arrears of rent was proceeded ex parte and eventually

decreed. The tenants preferred an appeal against the ex parte decree along

with an application for condonation of delay. They also filed an application

under Order IX Rule 13 of the C.P.C. for setting aside the ex parte decree.

The District Judge, Gondia dismissed the application for condonation of

delay in filing the appeal against the ex parte decree and the civil suit was

also dismissed. Thereafter, the trial Court i.e. Civil Judge Senior Division,

Gondia dismissed the tenant’s application under Order IX Rule 13 of the

C.P.C. for setting aside the ex parte decree.

::: Downloaded on – 09/06/2013 17:52:02 :::
3

3. The tenants, therefore, preferred Misc. Civil Appeal before

the District Judge, Gondia against the order rejecting their application

under Order IX Rule 13. The appellant-landlord raised a preliminary

objection to the maintainability of this appeal on the ground that after

dismissal of the regular appeal against the ex parte decree, the application

under Order IX Rule 13 of the C.P.C. was bound to be dismissed in view of

explanation to Order IX Rule 13 and, therefore, the Misc. Civil Appeal under

Order XLIII Rule 1-A of the C.P.C. against the order rejecting application

under Order IX Rule 13 was itself not tenable.

4. The learned District Judge hearing appeal under Order XLIII

Rule 1-A against rejection of the application under Order IX Rule 13, held

that application under Order IX Rule 13 was not maintainable since ex parte

judgment and order had been dismissed and not withdrawn as

contemplated by explanation to Order IX Rule 13. The District Judge,

however, also held that since the application under Order IX Rule 13 was

not tenable, the appeal against rejection of that application was also not

tenable. The explanation to Order IX Rule 13 of the C.P.C. reads as follows:

“Order IX Rule 13

13. Setting aside decree ex parte against defendant- In any case
in which a decree is passed ex parte against a defendant, he may
apply to the Court by which the decree was passed for an order to

::: Downloaded on – 09/06/2013 17:52:02 :::
4

set it aside; and it he satisfies the Court that the summons was

not duly served, or that he was prevented by any sufficient cause
from appearing when the suit was called on for hearing, the

Court shall make an order setting aside the decree as against him
upon such terms as to costs, payment into Court or otherwise as
it thinks fit, and shall appoint a day for proceeding with the suit:

Provided that where the decree is of such a nature that it
cannot be set aside as against such defendant only it may be set
aside as against all or any of the other defendants also:

Provided further that no Court shall set aside a decree

passed ex parte merely on the ground that there has been an
irregularity in the service of summons, if it is satisfied that the

defendant had notice of the date of hearing and had sufficient
time to appear and answer the plaintiff’s claim.

Explanation-Where there has been an appeal against a

decree passed ex parte under this rule, and the appeal has been

disposed of on any ground other than the ground that the
appellant has withdrawn the appeal, no application shall lie
under this rule for setting aside that ex parte decree.”

Order XLIII Rule 1-A of the C.P.C. which is relevant reads as

follows:

“Order XLIII Rule 1-A
1-A. Right to challenge non-appealable orders in appeal against
decrees-

(1) Where any order is made under this Code against a party

::: Downloaded on – 09/06/2013 17:52:02 :::
5

and thereupon any judgment is pronounced against such party

and a decree is drawn up, such party may, in an appeal against
the decree, contend that such order should not have been made

and the judgment should not have been pronounced.
(2) In an appeal against a decree passed in a suit after
recording a compromise or refusing to record a compromise, it

shall be open to the appellant to contest the decree on the ground
that the compromise should, or should not, have been recorded.”

From a plain reading of the explanation to Order IX Rule 13,

it is obvious that an application for setting aside an ex parte decree will not

lie where an appeal has also been filed against that very decree and has

been disposed of on any grounds other than the fact that it has been

withdrawn. Therefore, in the writ petition filed by the tenants, the learned

Single Judge has rightly held that the finding of the learned District Judge

to that effect is correct.

5. However, as regards the tenability of the appeal against the

order rejecting the application under Order IX rule 13 of the C.P.C. it is

equally obvious that the learned District Judge was wrong in holding the

same to be not maintainable merely because application under Order IX

Rule 13 of the C.P.C. was found to be not maintainable. A Judgment

Debtor whose application under Order IX Rule 13 for setting aside the

dismissal of a suit has been rejected is entitled to prefer an appeal and the

::: Downloaded on – 09/06/2013 17:52:02 :::
6

appeal cannot be dismissed as not tenable merely because the application

under Order IX Rule 13 has been rejected as not tenable. The learned

Single Judge quite rightly observed in the judgment that the District Judge

ought not to have held that the appeal before him was not tenable.

6. Thus, there is no reason why the appellant-tenant should

raise any grievance about these findings of the learned Single Judge.

However, the learned Single Judge has remanded the matter back to the

appellate Court for deciding the appeal, in accordance with law. The

appellant, aggrieved by that finding has preferred this Letters Patent

Appeal.

7. Having considered the matter, we are of the view that the

remand of the matter to the appellate Court was not necessary since the

learned Single Judge had come to the conclusion that the finding of the

learned District Judge that the appeal was not tenable was wrong. The

learned Single Judge having held that the appeal was tenable and that the

order in appeal was otherwise justified, it would have been proper for the

learned single Judge to hold that the application under Order IX Rule 13 of

the C.P.C. was rightly rejected as not tenable. The order of the remand

results in sending the matter back to the appellate Court only for the

::: Downloaded on – 09/06/2013 17:52:02 :::
7

purpose of rendering a finding that the appeal is tenable. This was not

necessary.

In this view of the matter, we set aside only the direction of

the learned Single Judge remanding the matter back to appellate Court. In

our view, the order of the learned Single Judge is liable to be upheld and

the order of the remand to the lower appellate Court is liable to be set

aside.

Order accordingly.

The L. P. A. stands disposed of. No order as to costs.

                               JUDGE                                   JUDGE
      
   



     kahale






                                                 ::: Downloaded on - 09/06/2013 17:52:02 :::
 

Unknown vs State Of Maharashtra on 18 October, 2011

Bombay High Court
Unknown vs State Of Maharashtra on 18 October, 2011
Bench: K.U. Chandiwal
                                   - 1 -

                                                                        3100.11




                                                                    
     rng
      IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                            
          CRIMINAL APPELLATE JURISDICTION
            CRIMINAL WRIT PETITION NO.3100 OF 2011
     Pradip S.Dixit
     Aged about 49 yrs,
     Occu: Business having address




                                           
     at Hotel Shantidoot
     Opp Hindmata cinema,
     Babasaheb Ambvedkar Rd,
     Dadar (E) Mumbai            .. Petitioner




                                 
                    vs
                   
     1.State of Maharashtra
     2.Mr.Lalit More
     aged 44 yrs,
                  
     Prop.M/s Alcto Control Systems
     having address of office no.2
     Sankalp,A wing, Film city Rd,
     Malad (E) Mumbai-97         ..               Respondents

Mr.K.H.Giri for Petitioner
Ms.R.V.Newton APP for State
CORAM: K.U.CHANDIWAL, J

DATE: 18th October, 2011
ORAL JUDGMENT

Rule. Rule made returnable forthwith. No

notice to the Respondent no.2

1. Heard learned counsel for the Accused-

Applicant. The conviction recorded by the
th
learned Metropolitan Magistrate, 7 Court,

::: Downloaded on – 09/06/2013 17:51:45 :::

– 2 –

3100.11

Dadar, Mumbai by order dated 10.5.2011 was

questioned before the learned Sessions Court in

Criminal Revision Application No.118 of 2011.

By an order dated 19.9.2011 the learned

Additional Sessions Judge dismissed the

Revision. Hence the writ.

2. The

case propounded by the Complainant-

respondent No.2 was, he has carried out

activities of supply of CC TV cameras and lodged

installations at hotel of the Accused-Applicant.

It was on going process of 4/5 bills since 2007,

2008. There was another contract in January,

2009. Contract of January,2009 was extended up

to June, 2009. After the work as per schedule

in discharge of liability the Accused-Applicant

has issued a cheque dated 7.5.2009 drawn on

Allahabad bank in the sum of Rs.3,50,000/-

(Three lacs fifty thousand only). The said

cheque on presentation was dishonoured.

Consequently, statutory notice was issued. The

Accused-Applicant denied that the cheque was in

::: Downloaded on – 09/06/2013 17:51:45 :::

– 3 –

3100.11

discharge of the entire liability, as according

to the Accused-Applicant still the work was left

to be completed and certain deficiencies were

noticed by him. After statutory notice complaint

was filed. Process was issued to the accused.

The accused claimed that he has issued a blank

signed cheque in favour of the Complainant for

security

and without completing the contract

misused the said cheque.

3. Learned counsel for the Writ Petitioner

(accused) has raised following points :

(a) The learned Judge erroneously relied on

bills produced by the
complainant/respondent at the fag end of
the matter.

(b) The verification of the affidavit in
chief is defective.

(c) The reply notice dated 15.6.2009 did
not meet rejoinder from the
complainant/respondent.

d) There does not stand any legally
enforceable liability and consequently no
presumption in terms of section 139 of
Negotiable Instrument Act.

::: Downloaded on – 09/06/2013 17:51:45 :::

– 4 –

3100.11

4. Before adverting to the contentions raised

by learned counsel for the Applicant-Accused one

fact is to be taken into consideration that as

against conviction the revision was preferred by

the accused applicant as stated above and after

getting the Revision dismissed Writ Petition is

filed before this court. Consequently, it is

needless to indicate that scope of Writ Petition

is very limited. Law does not permit to

entertain the said Writ Petition to canvass

factual details and disputes as there is

specific bar under section 397 (3) of Cr.P.C.

However learned counsel has elaborately dealt

with evidence, read the reply notice and even

the arguments tendered before the learned Judge

particularly page 72 (para 6). learned counsel

reiterate reading portions of the judgment the

findings are contrary to the record.

5. Having gone through the judgment, I find no

error of facts or law can be attributed to

either the learned Metropolitan Magistrate or to

::: Downloaded on – 09/06/2013 17:51:45 :::

– 5 –

3100.11

the learned Revisional Court. There is no

miscarriage of justice or failure of justice.

6. The documents which were purportedly

produced below Exhibit 27 by the complainant are

not considered by the learned Judge barring

giving a reference, that such documents were

indeed

produced by complainant for court’s

satisfaction as asked by learned Judge.

7. On the point of verification learned counsel

for the Applicant-Accused has pointed to chapter

7 of Criminal Manual dealing with affidavits and

relied on the judgment reported in:

(1) AIR 1970 SUPREME COURT 652 (AAK NAMBIAR
VS UNION OF INDIA & ANR) para 11 therein.

2) MR.EVAN NORONHA VS MR./LLOYD JOSEPOH
SIQUEIRA 2009 All MR (Cri) 1058.

(3) 1989 (1) Bom. C.R.337 (RAJENDRA
GANDHI VS STATE OF MAHARASHTRA)

In the matter of AKK NAMBIAR, observations

of Their Lordships in para 11 being of

::: Downloaded on – 09/06/2013 17:51:45 :::

– 6 –

3100.11

importance are produced hereinafter:

11. The reasons for verification of

affidavits are to enable to court to find
out which facts can be said to be proved on
the affidavit evidence of rival parties.
Allegations maybe true to knowledge or
allegations may be true to information

received from persons or allegations may be
based on records. The importance of

verifications to test the genuineness and
authenticity of allegations and also to
make the deponent responsible for

allegations. In essence verification is
required to enable the court to find out as
to whether it will be safe to act on such
affidavit evidence. In absence of proper
verification, affidavits cannot be admitted

in evidence.

8. In the light of the observations of the

Supreme Court let us see the factual details of

the present case. At page 23 of the petition,

verification of the Affiant/Complainant is

reproduced, which reads:

Verification

I,Lalit More, the Complainant above
named, aged 43 years, Prop.of M/s
AutoControl Systems, having office
No.2 Sankalp, A-wing, Film City Road,
Malad (E) Mumbai 400 097, do hereby
state and declare on solemn

::: Downloaded on – 09/06/2013 17:51:45 :::

– 7 –

3100.11

affirmation that whatever stated in
foregoing paragraphs above are true

and correct to the best of my
knowledge and belief.

Solemnly affirmed at Mumbai

this 24th day of November,2010

Complainant

Explained & Identified by me
ig s/d

(S.H.Tiwari) Advocate High Court

Wadala, Mumbai-400 031. Before me,

Learned counsel submits that this verification

is short of informing that what are facts to the

personal knowledge of the Complainant and what

he derived from the source from the Attorneys.

9. There cannot be quarrel on legal

proposition and also the guidelines indicated in

the Criminal Manual as to how affidavit are to

be sworn in. However, verification in the

instant case needs to be seen on the factual

matrix as it was examination-in-chief of the

::: Downloaded on – 09/06/2013 17:51:45 :::

– 8 –

3100.11

Complainant in the form of an affidavit. The

details in the examination-in-chief from para 1

to para 10 informed everything of the personal

knowledge and the transaction the Complainant

(Respondent No.1) had with the accused (Writ

Petitioner). There is nothing in the

examination-in-chief of the Complainant to

borrow that he had gathered certain information

from any other source. There is no garble to his

stand. This position is clear concerning

verification of affidavit as indicated in

section 145 of Negotiable Instrument Act and as

to which contingence affidavit to be read in

evidence in any inquiry. Hence, facts as has

been stated by complainant certainly within his

own knowledge and which is in tune to

requirement in manual and even as per para 11

the Supreme Court indicated in the matter of AKK

NAMBIAR.

10. Learned counsel for the Accused-Applicant

stated that there was no legal enforceable

::: Downloaded on – 09/06/2013 17:51:45 :::

– 9 –

3100.11

liability. He has relied on the judgment of

Hon’ble Supreme court in the matter of (1)

RANGAPPA VS SRIMOHAN 2010 ALL SCR (Cri) 1349 of

this Court (2) In the matter of MR.EVAN NORONHA

vs MR.LLOYD JOSEPH SIQUEIRA 2009 ALL MR Cri)

1058 and (3) in the matter of SESHRAO KRISHNARAO

UMREDKAR VS H.K.PANDE & ANR 2010 (2) Bom.C.R.

(Cri)725.

11. The hon’ble Supreme court has by judgment

in the matter of RANGAPPA VS SRI MOHAN has (2010

ALL SCR (Cri) 1349 dealt with section 139 of

Negotiable Instruments Act. The presumption

mandated in section 139 of the Act does indeed

include the existence of legally enforceable

debt or liability.

Negotiable Instruments Act was enacted with

a specified object of making special provision

by incorporating a strict liability so far

cheque is concerned. The presumption of

innocence is a human right, however section 139

::: Downloaded on – 09/06/2013 17:51:45 :::

– 10 –

3100.11

raise a presumption in regard to the cheque was

drawn in discharge of debt or other liability.

There is nothing on record to show applicant has

anywhere whispered to dispel the said

presumption in tune to the requirement.

12.

Considering this legal

been enunciated by the Supreme court the factual
position as has

matrix of the present case involve that the

cheque issued by the Accused- Applicant was

certainly as against legally enforceable

liability of the work of installations carried

out by the Complainant/Respondent No.1 at the

hotel of the Accused-Applicant. Deficiences if

any, noticed later on, would not invoke to

dishonour of cheque, in the absence of any

contract.

13. Taking survey of these facts, I do not see

any error in the judgment of conviction. Writ

Petition lacks merit. Rule discharged.

::: Downloaded on – 09/06/2013 17:51:45 :::

– 11 –

3100.11

K.U.Chandiwal, J

::: Downloaded on – 09/06/2013 17:51:45 :::