Civil Application (Caf) No. 1514 … vs Unknown on 5 October, 2011

Bombay High Court
Civil Application (Caf) No. 1514 … vs Unknown on 5 October, 2011
Bench: A. B. Chaudhari
                                       1




                                                                        
                                                
            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH, NAGPUR

                    CIVIL APPLICATION (CAF) No. 1514 of 2011




                                               
                        (In FIRST APPEAL NO.836 OF 2009)


     APPELLANT :-     Lubhan Gopal Nikhare
                       aged about 38 years, Occ.: service
                       r/o Navegaon Vidyalaya, Navegaon Bandh,




                                   
                       Tahsil Arjuni Morgaon, Distt. Gondia.
                    ig               ...VERSUS...

     RESPONDENT :- Sau. Sandhya w/o Lubhan Nikhare,
                     aged 30 years, Occupation : Household,
                  
                     r/o c/o Nilkanth Ganpat Dhakate,
                     Indira Gandhi Ward, Chandani Chowk,
                     Bhandara.

     APPLICANT :       Gopala Bansilal Nikhare,
      

                        aged 80 years, r/o Sangadi,
                       Tah. Sakoli, Distt. Bhandara.
   



     -------------------------------------------------------------
                  Mr. Anil Mardikar Advocate for appellant.
                 [Mr. J.R. Kidilay Advocate for respondent.
     -------------------------------------------------------------





                                    CORAM : A.B. CHAUDHARI,J.

DATED : 05.10.2011

ORAL JUDGMENT

This is an application filed by the father of the
appellant seeking permission to prosecute the present
appeal and for bringing him on record in place of his son-
original appellant, who expired during the pendency of
this appeal.

2. This application has been vehemently opposed by

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the respondent/wife and reply has also been filed.

Placing reliance on the decision of supreme Court in the
case of Smt. Yallawwa v. Smt. Shuntavva – AIR 1997 SC 35
learned counsel for the respondent/wife argued that the
appellant/husband Lubhan having expired during the

pendency of present appeal and the subject matter of the
appeal being the proceedings for divorce between husband
and wife on the ground of desertion and cruelty, the cause
was purely a personal cause of action and, therefore, the

same would die with the husband. He then argued that the

respondent/ wife has one child and at any rate on merits
of the matter there is no substance in the present appeal
as the decree of dismissal of divorce petition is well

justified. According to him, the person sought to be
substituted in place of original appellant is his father,
who is not a class I heir but the child is, and therefore,
no better rights can be read in favour of father as

against the son of original appellant and respondent.

Therefore, the cause of action being a personal cause of
action, this appeal will have to be dismissed as having
been abated. In support of his contentions, he relied on

para 10 of the judgment of supreme court, cited supra.

3. Per contra, Mr.Mardikar opposing the objection to
his application for bringing the father of original
appellant on record, submitted that the aforesaid supreme
court decision is in fact a decision in favour of the

applicant. He submits that in the said decision though
the facts were similar the decree that was passed was an
ex parte decree. The said ex parte decree was set aside
by the High Court and the proceedings of the petition for
divorce were restored before the trial Court. Once the
effect of ex parte decree was wiped out by virtue of the

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decision of High Court by setting aside ex parte decree,

there was no decree standing in the way of either of the
parties. Therefore, at the stage after remand the
proceedings due to the death of one party assumed
character of purely personal cause of action, and

therefore, in the facts of the said decision of Supreme
Court it was held that the proceedings of divorce could
not be continued in the trial Court. However, he argued
that sofar as the instant appeal proceedings are

concerned, the Supreme Court in categorical terms has held
that prosecution
maintainable.

ig of appeal by legal heir would be

4. I have heard learned counsel for the rival parties

at length and also carefully considered the supreme court
decision, cited supra. It s not necessary to repeat what
the Supreme Court has stated in the aforesaid decision.
Insofar as the present case is concerned,it would be

relevant to quote the extracted portion from para 7 in

caption (i) and (ii) of the said decision.

“But once these proceedings are initiated
by the concerned aggrieved spouse, the

trial then proceeds further. It is of
course true that pending such trial if
either of the spouses expires then, as
seen earlier, the personal cause of
action against the husband or the wife,

as the case may be, dies with the
departing spouse. As no rights are still
crystallised by then against or in favour
of either spouse, no proprietary effect
or any adverse effect on the status of
the parties would get generated by mere

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filing of such petition and the status

quo ante would continue to operate during
the trial of such petition. However, the
situation gets changed once a decree of
divorce follows in favour of either of

the spouses whether such decree is
bipartite or ex parte. Thereafter, as
noted earlier direct legal consequences
affecting the status of parties as well

as the proprietary rights of either of

them, as
such a
noted earlier, would flow from
decree. Under these
circumstances, if the aggrieved spouse

who suffers from such legal effects of
the adverse decree against him or her is
told off the gates of the appellate
proceedings or proceedings for setting

aside such ex parte decree, the concerned

spouse would suffer serious legal damage
and injury without getting any
opportunity to get such a decree set

aside on legally permissible grounds.

Consequently, it may be held that once
the petition under Section 13 of the
Hindu Marriage Act results into any
decree of divorce either ex parte or

bipartite then the concerned aggrieved
spouse who suffers from such pernicious
legal effects can legitimately try to get
them reversed through the assistance of
the Court. In such an exercise, all
other legal heirs of deceased spouse who

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are interested in getting such a decree

maintained can be joined as necessary
parties. Section 13(1) of the Hindu
Marriage Act can obviously come in the
way of such proceedings being maintained

against the legal heirs of the decree-
holder spouse. …..

In a decree of divorce on these
grounds whether ex parte or bipartite is

not permitted to be challenged by the

aggrieved spouse, it would deprive the
aggrieved spouse of an opportunity of
getting such grounds re-examined by the

competent Court. It cannot, therefore,
be said that after a decree of divorce is
passed against a spouse whether exparte
or bipartite such aggrieved spouse cannot

prefer an appeal against such a decree or

cannot move for getting ex parte divorce
decree set aside under Order IX Rule 13,
C.P.C. Such proceedings would not abate

only because petitioner who has obtained
such decree dies after obtaining such a
decree. The cause of action in such a
case would survive qua the estate of the
deceased spouse in the hands of his or

her heirs or legal representatives.

       Consequently          in          such            appellate
       proceedings     or    proceedings            under      Order

IX, Rule 13 C.P.C., other heirs of the
deceased spouse could be joined as
opposite parties as they would be

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interested in urging that the surviving

spouse against whom such decree is passed
remains a divorcee and is not treated to
a widow or widower of the deceased
original petitioner so that she or he may

not share with other heirs the property
of deceased spouse. So far as the other
heirs of the deceased spouse are
concerned, they would certainly be

interested in getting the decree of

divorce confirmed by the appellate court
or by the trial court by opposing
application under Order IX, Rule 13

C.P.C., if it is an ex parte decree
against the concerned spouse. It must,
therefore, be held that when a divorce
decree is challenged by the aggrieved

spouse in proceedings whether by way of

appeal or by way of application under
Order IX Rule 13, C.P.C., for setting
aside the ex parte decree of divorce,

right to survive to the aggrieved
surviving spouse if the other spouse
having obtained such decree dies after
decree and before appeal is filed against
the same by the aggrieved spouse or

application is made under Order IX, Rule
13 by the aggrieved spouse for getting
such an ex parte decree of divorce set
aside. Similarly, the right to sue would
also survive even if the other spouse
dies pending such appeal or application

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under Order IX, Rule 13, C.P.C. In their

case proceedings can be continued against
the legal heirs of the deceased spouse
who may be interested in supporting the
decree of divorce passed against the

aggrieved spouse……”

5. To my mind, the ratio decidendi of the aforesaid
supreme court judgment applicable in the present case is

that the decree of dismissal of divorce petition of the

appellant/ husband would continue to operate against (his
legal heirs) interest without hearing his appeal, and that
obviously would be violative of principles of natural

justice. Hence, applicant- father of the original
appellant/husband will have the right to continue to
prosecute this appeal as the legal heir. That being so,
it is imperative that the said legal heir of the appellant

ought to be allowed to prosecute the present appeal and

contest the decree which was passed against the original
appellant/ husband. In that view of the matter, the
objection taken by the learned counsel for respondent/wife

will have to be over-ruled. In the result, I make the
following order.

ORDER
C.A.F. No. 1514 of 2011 is allowed in terms of

its prayer clause (i).

Amendment be carried out within one
week. C.A. disposed of.

6. Learned counsel for respondent/wife submits that
the application made by the wife for appointment on

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compassionate ground in place of her husband has not been

considered by the competent authority only because of
pendency of the present appeal, and as a result the wife
and her child are suffering financial crisis. He has
filed photo copy of letter dated 5.9.2011 issued by

Navodya Vidyalaya Samiti, which is marked “X” for
identification and taken on record, which supports what
the counsel is saying. He, therefore, prayed for disposal
of appeal on merits, to which the learned counsel for the

appellant has no objection. In that view of the matter,

let this appeal be fixed for final hearing on 18.10.2011
at 2-30 p.m.

JUDGE

/TA/

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Shobhabai vs The State Of Maharashtra on 4 October, 2011

Bombay High Court
Shobhabai vs The State Of Maharashtra on 4 October, 2011
Bench: S. S. Shinde
                         1              cra134.11

                                           
          IN  THE HIGH COURT OF JUDICATURE AT BOMBAY 




                                                             
                     BENCH AT AURANGABAD

          CIVIL REVISION APPLICATION NO. 134 OF 2011




                                    
     1.   Shobhabai w/o Prakash Telure,
          Age now 35 years, Occ: Household,




                                   
          R/o. Bhim nagar, Kannad,
          Tq. Kannad, Dist. Aurangabad.

     2.   Siddharth s/o Prakash Telure,




                            
          Age now 30 years, Occ: Education,
          R/o. Bhim nagar, Kannad,


     3.
                  
          Tq. Kannad Dist. Aurangabad.

          Aamarpali d/o Prakash Telure,
          Age now 18 years, Occ: Education,
                 
          R/o. Bhim nagar, Kannad,
          Tq. Kannad Dist. Aurangabad.     ...APPLICANTS 

            VERSUS             
      


     1.   The State of Maharashtra,
   



          Through Collector, Aurangabad.

     2.   Smt. Mandanbai w/o Prakash Telure,
          Age now 40 years, Occ:  Household,





          R/o. Bhim nagar, Kannad,
          Tq. Kannad Dist. Aurangabad.

     3.   Ku. Ujwala d/o Prakash Telure,
          Age now 16 years, Occ:  Education,





          R/o. Bhim nagar, Kannad,
          Tq. Kannad Dist. Aurangabad.


     4.   Ku. Sharda d/o Prakash Telure,
          Age now 14 years, Occ:  Education,
          R/o. Bhim nagar, Kannad,
          Tq. Kannad Dist. Aurangabad.




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     5.   Ku. Bharti d/o Prakash Telure,
          Age now 11 years, Occ:  Education,




                                                                  
          R/o. Bhim nagar, Kannad,
          Tq. Kannad Dist. Aurangabad.




                                         
     6.   Vishal s/o Prakash Telure,
          Age now 11 years, Occ: Education,
          R/o. Bhim nagar, Kannad,
          Tq. Kannad Dist. Aurangabad.




                                        
          (Respondent Nos. 3 to 6 under
           Guardianship of Resp.No.2.)   ...RESPONDENTS




                               
                          ...
     Mr. H.M. Salve, Advocate for applicants.
     Mr. D.V. Tele, AGP for respondent No.1.
                   
     Mr.K.U. Nikam,Advocate for respondent Nos. 2 to 6. 
                          ...
                       CORAM         :S.S. SHINDE, J.
                  
                       RESERVED ON   :28-09-2011
                       PRONOUNCED ON :04-10-2011 

     JUDGMENT :

. Rule. Rule made returnable forthwith.

With the consent of learned Counsel for the

parties, the matter is taken up for final hearing.

2. This Civil Revision Application is filed

challenging the judgment and order dated

04-03-2011 in Regular Civil Appeal No. 119 of 2007

passed by the District Judge-5 Aurangabad. The

revision applicants herein filed M.A.R.J.I.

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No. 188 of 2006 in the Court of the Civil Judge,

Junior Division, Kannad. The facts stated in the

M.A.R.J.I. No.188 of 2006 are reproduced herein

below for ready reference.

“1. That, the Prakash s/o Shahadu Telure
(hereinafter referred the deceased) died
on dt.23-10-2005 at village Kannad,

Tq.Kannad Dist. Aurangabad.

2.

That the ordinary and permanent
residence of deceased at the time of death

was at Bhimnagar, Kannad Tq. Kannad Dist.
Aurangabad.

3. That the deceased had left the following

members of the family :-






     Sr.   Name of the legal heirs.         Relationship   with 
     No.                                    the deceased.
                                                         Wife





      1   Shobhabai w/o Prakash Telure
                                                  Son

      2   Siddharth s/o Prakash Telure 
      3   Aamrapali d/o Prakash Telure               daughter




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4. That, the petitioners No. 1 to 3 are
the legal heirs of the deceased, besides

them, there is no other successors legal
representatives to the deceased. As such
the petitioners are entitled for heirship

certificate as prayed. The dseceased was
governed by the Hindu Law.

5. That the deceased has left no will,

no application has been made for grant of
letters of administration of the

deceased.

6. That, there is no impediment U/sec.

370 or other provisions of the Indian
Succession Act and any other enactment to

grant of the certificate or to the
validity thereof when granted.

7. That, the deceased was in service in
the Revenue Office, Kannad under Deputy
Collector, Sillod and working as a

Talathi. He was died on the duty on dt.
23.10.2005. The petitioner NO. 1 would
have been chances to get service on
compassionate basis from the concerned
department and to get official all

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benefits.

8. That, the petitioners when approached
to the concerned Authority of department

and requested to them to give benefits of
compassionate basis, that time the
concerned Authority has directed to the

petitioner to obtain the legal heirship
certificate from court for the above
purpose.

9.
igThat, the legal heirship
certificate may kindly be issued in the

name of the above petitioners.”

3. The Civil Judge, Junior Division, Kannad

passed the following order.

” Petitioner moved this application for

heirship certificate.

A notice was published in local daily
newspaper ‘Tarun Bharat’ calling anybody

to raise objection if any within one
month of the date of publication of the
notice. In response of publication of
said notice objector Mandanbai Prakash

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Telure and other appeared and filed
objection at Exh. 14. Thus, this

position is become contentious.

Learned advocate S.K. Shejwal argued
that the objector appeared beyond the
period mentioned in the notice and on

this point he submitted for discarding
the objection. However, I found no
substance in such argument, because

though the objector appeared beyond the

period mentioned in the notice, yet in
the interest of justice an opportunity

must be given to objector to contest the
application.

Since the petition is become
contentious it needs to be sent to

Hon’ble Civil Judge (S.D.) Aurangabad.
Hence in view of Chapter XIV para 304 &

305 of Civil Manual, the petition be
transferred to Hon’ble Civil Judge,
Senior Division, Aurangabad.”

4. On 23-03-2007 the Civil Judge, Senior

Division, Aurangabad after considering the oral

and documentary evidence, allowed the application

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filed by the revision applicants and issued

certificate.

5. Aggrieved by the said judgment and order

dated 23-03-2007 respondent No. 2 herein Mandanbai

filed Regular Civil Appeal No. 119 of 2007 before

the Court of the District Judge-5 Aurangabad.

. The District Judge-5, Aurangabad allowed

the appeal filed by Mandanbai and quashed and set

aside the order dated 23-03-2007 holding that

there is no satisfactory evidence about the

ceremonies of marriages and there is no evidence

to show whose marriage took place first.

6. Being aggrieved by the judgment and order

passed by the appellate Court, this Civil Revision

Application is filed by the revision applicants.

. Learned Counsel appearing for the

revision applicants submits that, revision

applicant No.1 Shobhabai w/o Prakash Telure is

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legally wedded wife of deceased Prakash s/o

Shahalu Telure. Revision applicant No.2 Siddharth,

revision applicant No. 3 Amarpali are son and

daughter of deceased Prakash. Deceased Prakash

was working as Talathi in the office of Deputy

Collector, Sillod, who died on 23-10-2005. It is

submitted that, after death of Prakash, the

revision applicants approached to authority with a

request to provide employment on compassionate

ground. The authority then asked the revision

applicants to bring legal heirs certificate for

getting the benefit. Therefore, revision

applicants filed application before the Civil

Judge, Junior Division, Kannad under Bombay

Regulation VIII of 1827. The Civil Judge, Junior

Division, Kannad on receiving application from the

revision applicants issued public proclamation

inviting objection if any.

7. Respondent No. 2 herein Mandanbai after

knowing, after expiry of period filed objection

denying that the revision applicants are legal

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heirs of deceased Prakash and claimed that, she

herself and her children are legal heirs of

deceased Prakash. The Civil Judge, Junior

Division, Kannad on receiving this objection from

the respondents herein, transferred the

application to the Court of the Civil Judge,

Senior Division, Aurangabad.

8. It is further submitted that, the Civil

Judge, Senior Division, Aurangabad framed issues.

In support of the claim of the revision

applicants, revision applicant NO.1 Shobhabai w/o

Prakash examined herself as P.W. 1 and in her

support examined P.W. 2 Haribhau, P.W. 3 Bhimrao

and produced the documentary evidence. These

witnesses asserted that Mandanbai is wife of Sheku

s/o Chinda. Respondent No. 1 Mandanbai examined

herself as P.W. 1. Both the sides produced

documentary evidence in support of their

affidavits. Copy of affidavit and cross of P.W. 2

Haribhau is placed on record. Learned Counsel

invited my attention to the affidavit and cross of

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P.W. 1 Shobhabai. He further invited my attention

to copy of affidavit and cross of P.W. 2 Haribhau.

Learned Counsel further invited my attention to

affidavit of P.W. 3 Bhimrao which is placed on

record alongwith Civil Revision Application.

. Learned Counsel for the revision

applicants further invited my attention to the

affidavit in cross of D.W. 1 Mandanbai. Learned

Counsel for the revision applicants would submit

that, after hearing both the parties, the Civil

Judge, Senior Division, Aurangabad has allowed

Misc. Application No. 188 of 2006 thereby

dismissing the objection raised by the respondents

and legal heirs certificate is rightly issued in

favour of the revision applicants. Learned

Counsel further invited my attention to the

reasons recorded by the Civil Judge, Senior

Division, Aurangabad while granting legal heirs

certificate in favour of the revision applicants.

9. Learned Counsel for the revision

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applicants submits that, the appellate Court has

exceeded the jurisdiction and erred in quashing

and setting aside the judgment and order of the

Civil Judge, Senior Division, Aurangabad for want

of evidence of ceremony of marriage and dates of

marriages. It is submitted that, the Civil Judge,

Senior Division, Aurangabad investigated the

question in dispute in summary proceedings where

for proving marriage standard of proof need not be

so high as required in regular civil proceedings.

Learned Counsel further submitted that, without

evidence of ceremony of marriage, there are

factors i.e. acceptance of society as husband and

wife, continuous cohabitation of parties as

husband and wife, openly living as husband and

wife and acceptance of their children by society,

which provides sufficient and conclusive inference

of the marriage. It is further submitted that,

there is sufficient evidence to prove the

marriage. P.W. 1 Shobhabai has stated on oath on

14-05-1989 as per Budha Rites her marriage took

place with deceased Prakash at village Wasadi. In

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her support, she examined P.W. 2 Haribhau, P.W. 3

Bhimrao who are real elder brother of deceased

Prakash. These witnesses have also stated the same

fact. They have no interest to accept a lady who

is not married with their brother Prakash. Their

version in the cross examination had not been

shaken, they being members of family are competent

to state on the facts of marriage of Prakash.

.

It is further submitted that, documentary

evidence in support of marriage of revision

applicant NO.1 with deceased Prakash was produced

on record. Copy of invitation (marriage) card was

produced on record. After the marriage, the

information was recorded in the office of

Grampanchayat Wasadi on 16-05-1989. Exhibit-27

is certificate issued by Grampanchayat Wasadi to

that effect. Deceased Prakash was in service in

the year 1992 and after his marriage, he submitted

nominee form for getting benefits in future to his

heirs. In the nomination form, deceased Prakash

has shown Shobhabai w/o Prakash and Siddharth s/o

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Prakash as nominees. Learned Counsel submits that,

the statement of Prakash amounts to an admission

which is material aspect that the marriage of

Shobhabai with deceased Prakash was

solemnised/performed. It is further submitted

that, respondent Mandanbai failed to prove her

marriage with deceased Prakash. She failed to

establish when her marriage took place. The

District Judge failed to consider that Mandabai is

wife of deceased Sheku s/o Chinda Lokhande, who

was working as labourer in Kannad Sakhar Karkhana.

Mandanbai had received benefits of her husband

Sheku. Though Mandanbai denied the said fact, the

document produced on record rebutted her denial.

It is clear that, voters list is at Exh. 61,

wherein name of Mandanbai is shown at Sr. No. 578

alongwith name of Prakash and Shoba at Serial No.

576 and 577 at House No. 18. It is further

submitted that, the District Judge failed to

consider other valuable evidence. Exh. 30 is

death certificate of Sheku Chinda who died on

22-07-1989 and reported on 26-07-1989 in

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Grampanchayat. Exh. 33 is a copy of voters list

for the year 1988 wherein Sheku s/o Chindaji is

shown as No. 659 and Mandanbai wife of Sheku is at

Sr. No. 660. The documents shown Mandanbai since

before 1988 was wife of deceased Sheku s/o Chinda.

Exh. 62 is a copy showing that Mandanbai had

received the benefit of deceased Sheku s/o Chinda.

It is not the case that above documents are

fabricated.

10. It is further submitted that, Mandanbai

after death of Prakash on the basis of affidavit

dated 01-11-2006 of her brother Anna Sakharam

Bagul obtained marriage certificate from

Grampanchahyat Sawkheda showing her marriage took

place on 19-04-1988 with Prakash. She filed

objection on 12-01-2006, affidavit on 10-10-2006,

cross examined on 19-12-2006, however, there is no

reference of date of marriage in her cross

examination. Therefore, it is clear that, the

marriage certificate produced by Mandanbai is a

created document and the appellate Court erred in

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giving importance to the said document. Learned

Counsel further submitted that, the alleged

documents which are produced on record by

Mandanbai are in the year 2006. However,

documents produced by revision applicant No. 1 are

from year 1988, 1989 onwards. Learned Counsel

further submits that, the District Judge is not

correct in holding that, from the assertion

between the parties the matter is complicated and

its nature is aggravated due to insufficient

direct evidence. It is further submitted that, in

the present case, the Civil Judge, Senior Division

from the evidence on record was satisfied that,

Shobhabai is legally married wife of deceased

Prakash and Siddharth and Amarpali are son and

daughter of deceased Prakash. It is submitted

that, sufficient evidence was produced on record

to show that Shobhabai married Prakash on

14-05-1989. Siddharth and Amarpali are begotten

from Prakash. It is further submitted that, the

revision applicants herein in support of their

case, examined revision applicant No.1 at Exh. 24.

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She also examined Haribhau Shahadu Telure and

Bhimrao s/o Shahadu Telure, who are the real

brothers of deceased Prakash. The learned Counsel

for the revision applicants herein invited my

attention to the number of documents which were

produced on record before Court below which are as

follows :

(1) certified copy of the death extract of

deceased Prakash at Exh. 27 (2) certified copy of

nomination filed by deceased Prakash in respect of

Provident Fund at Exh. 28, (3) Photo copy of

letter issued by Tahasildar Kannad at Exh. 29, (4)

death extract of Sheku Chindhya Lokhande at Exh.

30, (5) the certificate issued by Municipal

Council Kannad in respect of opponent No.1 at Exh.

31, (6) the certificate issued by Kannad Sahakari

Sakhar Karkhana Ltd., dated 06-02-2006 at Exh. 32,

(7) voters list for the year 1988 of village

Kannad at Exh. 33, (8) death extract of Prakash

Telure at Exh. 34, (9) certificate issued by

Kannad Municipal Council in respect of the

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revision applicants at Exh. 35, (10) the

invitation card of Jaldan Vidhi in respect of

deceased at Exh. 49, (11) the attested copy of

monthly payment in respect of Sheku Lokhande at

Exh. 62 and (12) death extract of Sheku Lokhande

at Exh. 70.

11. Therefore, learned Counsel appearing for

the revision applicants relying upon the grounds

taken in the revision application, annexures

thereto, documents placed on record and reasons

recorded by the Civil Judge, Senior Division,

Aurangabad while granting certificate in favour of

the revision applicants would submit that, this

Civil Revision Application deserves to be allowed.

In the alternate, he submits that, in case this

Court is not convinced to allow the Civil Revision

Application, in that case, appointment/service of

Siddharth may be protected till the suit filed by

Mandanbai is finally disposed of.

12. On the other hand, learned Counsel

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18 cra134.11

appearing for the respondents submitted that, the

revision applicants herein are the original

applicants who had filed the application

M.A.R.J.I. No. 188 of 2006 for grant of heirship

certificate, claiming to be the legal heirs of one

deceased Prakash Shahadu Telure, r/o Kannad, Dist.

Aurangabad, who was serving as Talathi. Said

application came to be allowed by the learned

Civil Judge, Senior Division, Aurangabad. It is

further submitted that, aggrieved thereby, the

respondents herein had preferred R.C.A. No. 119 of

2007 before the District Judge, Aurangabad, which

came to be allowed and the judgment and order of

the Civil Judge, Senior Division, Aurangabad

granting heirship certificate to the revision

applicants has been set aside. It is further

submitted that, present respondents are the

original objectors before the Court of the first

instance and the appellants before the First

Appellate Court.




     .          It   is   further   submitted   that,   original 




                                           ::: Downloaded on - 09/06/2013 17:48:46 :::
                             19                 cra134.11

application M.A.R.J.I. No. 188 of 2006 was filed

under the provision of Rule 4 of the Bombay

Regulation VIII of 1827. The said Regulation VIII

of 1827 clearly provides that, if somebody wants

recognition in respect of the right to any movable

or immovable property of any deceased person, he

may apply for such recognition in the form of

Certificate of heirship. If there is no any such

right to any movable or immovable property, no

such certificate can be granted. It is further

submitted that, the revision applicants have not

claimed the heirship certificate in respect of any

property, either movable or immovable owned by the

deceased Prakash and as such, the application

legally was not tenable and ought to have been

rejected. It is further submitted that, the

parties to the proceedings have led oral and

documentary evidence and as the inquiry was of

summary nature, the documents have been exhibited

without having been proved as per the provisions

of the Indian Evidence Act. The documents produced

and relied upon by the revision applicants herein

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20 cra134.11

at Exhbit-28, 29, 31, 32, 35, 49, 62 and the

marriage card filed at page NO.46 of paper book

herein, have not been duly proved through proper

witnesses.

13. Learned Counsel for the respondents

further submitted that, the oral evidence led by

the revision applicants is also not trustworthy.

The deposition of applicant No.1 Shobhabai (P.W.1)

is at page No. 27 of the paper book. She at the

end of paragraph NO.1 of her examination in chief,

has specifically contended that, she started

residing with her deceased husband at Bhimnagar,

Kannad and is still residing there. However, in

her cross examination, in paragraph No.9 at page

No. 33 of the paper book, she has stated that she

cannot tell the names of the adjoining residents

of her house at Bhimnagar, Kannad. It is further

submitted that, P.W. 1 has admitted that, her

children are residing at village Wasadi, Tq.

Kannad with her parents. It is further submitted

that, P.W. 2 Haribbhau Telure also has admitted in

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21 cra134.11

his cross examination at Page NO. 37 of paper book

that, Shobhabai resides at Wasadi, Tq. Kannad

Dist. Aurangabad.

. It is further submitted that, original

applicants have also examined another witness

namely Bhimrao Telure (P.W.3) in support of their

case. However, though he was cross examined, his

cross examination is missing from the record and

proceedings of the case and this fact was revealed

during the hearing of the First Appeal and

therefore, his testimony is of no avail to the

revision applicants. It is also submitted that,

there are other certain important admissions on

record which go in favour of the present

respondents. P.W. 2 Haribhau in his cross

examination has clearly admitted that, respondent

No. 6 herein namely Vishal is the son of deceased

Prakah Telore begotten from respondent No.1

Mandanbai and his name was mentioned in the

invitation card that was circulated for the

Jaladan Vidhi (the ceremony of the last rites of

::: Downloaded on – 09/06/2013 17:48:46 :::
22 cra134.11

deceased Prakash), alongwith the names other

relatives of said Prakash. It is also submitted

that, photocopy of one such card was also produced

by the revision applicants on record wherein the

name of said Vishal Prakash Telure was missing.

14. Learned Counsel for the respondents

further submitted that, the revision applicants

have produced the Voters list of Kannad

Constituency for the year 1998 at Exhibit-33 which

is at page 54 of paper book, to show that,

respondent No. 1 herein was the wife of one Sheku

Chintaji and names of said Sheku and one Mandanbai

are appearing at Sr. No. 659 and 660 in the said

list and they are shown to be aged 35 and 30 years

respectively. It is further submitted that, in

the same list at Sr. No. 676 the name of deceased

Prakash Shahadu also appears and his age is shown

as 21 years and it is very much hard to digest

that, a man can have or has any sexual

relationship with a woman about 10 years elder

than him. The revision applicants are trying to

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23 cra134.11

take disadvantage of the similarity in the name of

respondent No.1 with the name of wife of said

Sheku Chintaji. It is further submitted that, the

respondents herein have also produced on record

before the Court of instance the number of

documents which have presumptive value and they

are school leaving certificates of the children at

Exhibit Nos. 38, 39 and 40, the election identity

card issued by the Government at Exhibit-36,

voters list at Exhibit-47 and 61 and these all are

the documents having presumptive value which has

not been rebutted by the revision applicants.

Learned Counsel further submitted that, first

appellate Court after making the scrutiny of the

abovesaid oral and documentary evidence has

rightly come to the conclusion that, there is a

complicated question at issue between the parties

that of a complicated nature and can be resolved

by a regular suit only and cannot be decided

judiciously in a summary proceeding. The first

Appellate Court, therefore, has rightly directed

the parties to get the dispute settled by filing

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24 cra134.11

the regular suit in respect of their status. The

learned Counsel further submitted that,

considering the above mentioned facts and position

of law, Civil Revision Application may kindly be

rejected.

15. I have given due consideration to the

rival submissions. Since this is a Civil Revision

Application, unless case is made out within scope

of Section 115 of the Code of Civil Procedure,

Civil Revision Application cannot be entertained.

While exercising revisional jurisdiction, this

Court has to keep in mind the scope of Section 115

of the Code of Civil Procedure.

. In case of M.L. Sethi Vs. Shri. R.P.

Kapoor, reported in A.I.R. 1972 SC 2379, the

Supreme Court has observed that even gross errors

of facts and law cannot be gone into in revisional

jurisdiction. Yet, in another judgment in case of

DLF Housing & Constructions Co. (P) Ltd. vs.

Saroopsing and others, reported in AIR 1971 SC

::: Downloaded on – 09/06/2013 17:48:46 :::
25 cra134.11

2324, the Supreme Court held that while exercising

revisional jurisdiction under Section 115, it is

not competent to the High Court to correct errors

of fact however gross or even errors of law unless

the errors have relation to the jurisdiction of

the Court to try the dispute itself. Yet in

another judgment in the case of Managing Director

(MIG) Hindustan Aeronautics Ltd. Balanagar

Hyderabad and another vs. Ajit Prasad Tarway,

Manager (Purchase and Stores) Hindustan

Aeroinautics Ltd., Balanagar, Hyderabad reported

in AIR 1973 SC 76, the Honourable Supreme Court

held that revisional Court can only see whether

the Court below had jurisdiction. If it had

jurisdiction to entertain the proceedings, the

High Court cannot interfere. In the case of

Harishankar and others vs. Rao Giridhari Lal

Chowdhary, reported in AIR 1963 SC 698, the

Supreme Court has distinguished between right of

appeal and right of revision and held that, scope

of revisional jurisdiction is limited. Yet in

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26 cra134.11

another judgment in the case of Faijulbee Hajeel &

others vs. Yadali Amir Shaikh Ansari, reported in

1984(2) Bom.C.R. 253, the Division Bench of this

Court held that the decision on question of facts

is not amenable to revisional jurisdiction of the

High Court. In the judgment in case of Sanjay

Kumar Pandey and others vs. Gulabhar Sheikh and

others reported in AIR 2004 SC 3354 : [2004(5) ALL

MR (S.C.) 542], the Supreme Court held that the

revisional court cannot refer to part of the

evidence and reverse the findings of the fact. In

paragraphs 4 and 5, the Cort has clarified that

the revisional would be exercised in exceptional

circumstances and normally the party should file

independent suit to establish title.

16. In the present case, the relevant

provisions which are applicable are Chapter I of

the Bombay Regulations, which reads thus :

“Rules for the Recognition of Heirs,
Executors and Administrators when there is

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27 cra134.11

a Competent Claimant:

1. Legal heir, etc. of person deceased
competent to represent him without

recognition from court :

Whenever a person dies leaving

property, whether movable or immovable,
the heir or executor, or legal
administrator, may assume the management,

or sue for the recovery, of the property,

in conformity with the law or usage
applicable to the disposal of the said

property, without making any previous
application to the Court to be formally
recognized.

2. First. But if such recognition

requested, proclamation will be issued :

But if an heir, executor or
administrator is desirous of having his
right formally recognized by the Court,
for the purpose of rendering it more safe

for persons in possession of, or indebted
to, the estate to acknowledge and deal
with him, the Judge, on application, shall
issue a proclamation, in the form
contained in Appendix A, inviting all

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28 cra134.11

persons who dispute the right of the
applicant to appear in the Court within

one month from the date of the
proclamation and enter their objections,

and declaring that, if no sufficient
objection is offered, the Judge will
proceed to receive proof of the right of

the applicant, if satisfied, grant him a
certificate of heirship, executorship, or
administratorship.

Second. Publication of proclamation :
( Rep. Act. XII of 1873.)

3. If no objection appears, recognition
to be granted :

If, at the expiration of the time

mentioned in the proclamation no
sufficient objection has been made, the

Court shall forthwith receive such proof
as may be offered of the right of the
person making the claim, and if satisfied,
shall grant a certificate in the form

contained in Appendix B, declaring him the
recognized heir, executor or administrator
of the deceased.



     4.   First   :     Objection   appearing   to   the  




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                        29                 cra134.11

examined and recognition given or refused
accordingly :

If, before the expiration of the

time, any objection is made to the right
of the person claiming as heir, executor
or administrator, the Judge, on a day to

be fixed (of which is at least eight days
previous notice shall be given to the
parties), shall summarily investigate the

grounds of the objections on the one hand,

and of the right claimed on the other,
examining such witnesses or other evidence

as may be adduced by the parties, and
either grant or refuse a certificate, as
the circumstances of the case may require.

Second : If question is complicated or

difficult, matter to be left for
adjudication :

But if from the evidence adduced, it
appears that the question at issue between
the parties is of a complicated or

difficult nature, the Judge may suspend
proceedings in the application for
certificate until the question has been
tried by a regular suit instituted by one
of the parties.”

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                              30                 cra134.11



     .          Regulation   8   is   important   which   reads 




                                                                    
     thus :




                                            

“8. Refusal of a recognizition no

judgment against claim of applicant :

The refusal of a certificate by the

Judge shall not finally determine the
rights of the person whose application is

refused, but it shall still be competent
to him to institute a suit for the

purpose of establishing his claim.”

17. The appellate Court has considered

extensively submissions of the parties and also

has taken a note of various documents produced on

record by the parties. The revision applicants

herein filed/placed reliance on the following

documents:

(1) certified copy of the death extract of

deceased Prakash at Exh. 27 (2) certified copy of

nomination filed by deceased Prakash in respect of

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31 cra134.11

Provident Fund at Exh. 28, (3) Photo copy of

letter issued by Tahasildar Kannad at Exh. 29, (4)

death extract of Sheku Chindhya Lokhande at Exh.

30, (5) the certificate issued by Municipal

Council Kannad in respect of opponent No.1 at Exh.

31, (6) the certificate issued by Kannad Sahakari

Sakhar Karkhana Ltd., dated 06-02-2006 at Exh. 32,

(7) voters list for the year 1988 of village

Kannad at Exh. 33, (8) death extract of Prakash

Telure at Exh. 34, (9) certificate issued by

Kannad Municipal Council in respect of the

revision applicants at Exh. 35, (10) the

invitation card of Jaldan Vidhi in respect of

deceased at Exh. 49, (11) the attested copy of

monthly payment in respect of Sheku Lokhande at

Exh. 62 and (12) death extract of Sheku Lokhande

at Exh. 70.

18. Learned Counsel appearing for the

respondents herein placed reliance/relied upon the

following documents in support of their case.

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32 cra134.11

Respondent No. 1 Mandanbai examined

herself at Exhibit-52. She produced on record

(1) certified copy of school leaving register in

respect of opponent No. 4 Sharda at Exh. 38,

opponent No.5 at Exh. 39, opponent No. 6 Vishal at

Exh.40, (2) election identity card of opponent

No.1 at Exh.36, (3) the election identity card of

deceased Prakash at Exh. 37, (4) Voters list at

Exh. 47, (5) marriage registered certificate of

Mandanbai with Prakash at Exh. 60, (6) Voters list

dated 01-01-2006 at Exh. 61 and (7) affidavit of

Anna Sakharam Bagul at Exh. 67.

19. The appellate Court has considered the

case of the revision applicants that, opponent

No. 2 Mandanbai is widow of Sheku who died on

02-07-1989 and further, Mandanbai has taken

benefit due to his death from Kannad Sakhar

Karkhana. The appellate Court observed that,

though such contention is raised by the revision

applicants, no any officer from the said sugar

factory was examined so as to prove that,

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33 cra134.11

Mandanbai is widow of one deceased Sheku and she

has obtained benefit from Kannad Sakhar Karkhana.

Said aspect is considered in para-12 of the

appellate Court’s judgment.

20. In para-13 the appellate Court has

observed that, the respondents herein did not

produce any document to show that opponent No. 3

Ujwala is the daughter of deceased Prakash. The

appellate Court in para-14 has considered the

documents produced by the respondents herein i.e.

extract of school register of Sharda, Bharti and

Vishal. It is observed that, the name of Prakash

is appearing as their father. The birth date of

Sharda, Bharti and Vishal is also recorded in the

said paragraph. Other documents in respect of

claim of the revision applicant No.1 that, she is

legally wedded wife of Prakash is also considered

in the said paragraph. The appellate Court has

extensively considered the documents produced by

both the sides. The appellate Court in Para-15 has

considered the provisions of Bombay Regulation

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34 cra134.11

Act, 1827.

. In para-16 the appellate Court has

recorded that, the lower Court without considering

the status of opponent Nos.3 and 6 has rejected

their prayer though from the evidence through

cross examination of witness No. 2 on behalf of

the revision applicant NO.1 clearly and

conclusively proved that opponent No. 5 is son of

deceased Prakash, whether they are legitimate,

illegitimate, have right to inherit the property

or have no right to inherit the property have not

been considered.

21. The appellate Court has considered the

provision of Section 16 of the Hindu Marriage Act

extensively in para-16 of the impugned judgment

and reached to the conclusion that, if the

judgment and order under challenge is kept as it

is, it certainly will affect adversely forever

against opponent Nos. 3 to 6. Therefore, the

appellate Court recorded the findingS that,

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35 cra134.11

considering all facts and circumstances involved

in the case, the petitioners and opponents have

failed to prove requisites so as to record

positive findings on their respective assertions.

Therefore, the appellate Court granted liberty to

the parties to approach before the regular Court

by filing a suit to get determine their status,

rights and interest.

22.

I have given anxious consideration to the

points raised by the learned Counsel appearing for

the respective parties. In revisional

jurisdiction, unless their is some jurisdictional

error is committed by the Court below or perverse

findings are recorded by the Court below, in that

case only interference is warranted.

23. On going through the rival contentions

and documents which are placed on record, I am of

the view that, the revision applicant No.1

Shobhabai has not convincingly proved her marriage

with Prakash. The reasons recorded by the

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36 cra134.11

appellate Court are inconsonance with the evidence

brought on record. This Court while exercising

revisional jurisdiction, should refrain from

discussing any document or evidence brought on

record since the appellate Court has granted

liberty to the parties to approach the competent

civil Court to get their rights and interest

adjudicated by leading evidence. Any comments on

the merits of the matter would prejudice the

interest of the parties. Therefore, any extensive

comments on the documents/evidence which is placed

on record are avoided.

. From careful perusal of the pleadings by

the parties, documents placed on record and

evidence scanned by the appellate Court, it will

have to be concluded that, neither Shobhabai nor

Mandanbai have placed sufficient evidence on

record or proved documents which would lead to

only inference that their marriage with Prakash is

legal one. In the given case, it may be also

necessary to find out whose marriage is first in

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37 cra134.11

time with Prakash. Therefore, unless appropriate

evidence is led by the parties and documents are

proved, in the facts and circumstances of this

case, it is not possible to accept the claim of

either Shobhabai or Mandanbai. In that view of

the matter, in my considered opinion, the findings

recorded by the appellate Court are in consonance

with the evidence brought on record.

24.

It is true that, when application is made

for heir certificate, in the first instance the

concerned Court has to exercise powers in a

summary manner and in a case where there no

serious dispute, such procedure adopted by the

Court and issuance of certificate may be

acceptable. However, in the facts and

circumstances of this case, when both the parties

are seriously canvassing their claim, in that

case, unless the competent civil Court records

the findings after appreciation of evidence and

after giving opportunity to the parties to prove

the documents, it is not possible to accept the

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38 cra134.11

claim of either of the parties. In that view of

the matter, in the facts of this case it will have

to be held that, the appellate Court did reach to

the correct conclusion. It is also not out of

place to mention, that merely placing on record

the marriage invitation card or certificate issued

by Grampanchayat or any other document without

proving the said, same is is not sufficient to

prove the claim. It is necessary that such

documents are required to be proved. In the facts

of this case, Shobhabai and Mandanbai have placed

number of documents on record and without proving

such documents, it is not possible to record

definite conclusion by adopting summary procedure.

In that view of the matter, the view taken by the

appellate Court needs no interference in

revisional jurisdiction.

. During course of arguments, learned

Counsel appearing for the revision applicants

submitted that, revision applicant No.2 has got

appointment on compassionate ground on the basis

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39 cra134.11

of certificate already issued and therefore, in

case Mandanbai files suit and till such suit is

decided, interest of revision applicant No.2 may

be protected. Of course, this is an alternate

submission, in case revision fails.

25. As discussed hereinabove, I am not

inclined to allow this Civil Revision Application.

However, since revision applicant No.2 has got

employment on compassionate ground by producing

certificate issued on the direction of the Court,

in my opinion, ends of justice would meet if the

appointment of revision applicant No.2 is

protected for further four months.

26. It is made clear that, this Court has not

expressed any opinion about who should approach

the civil Court. Since the appellate Court has

given liberty to both the sides, it is for the

parties to approach the competent civil Court and

get their rights and interest adjudicated and

decided. However, it is made clear that, the

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40 cra134.11

appointment of revision applicant No. 2 Siddharth

should not be disturbed for four months from

today.

27. The Civil Revision Application stands

dismissed. Rule discharged. However, it is made

clear that, the appointment of revision applicant

No. 2 Siddharath is protected for four months from

today.

. Any observations hereinabove are made

only for the purpose of deciding this Civil

Revision Application and would not come in the way

of parties, while prosecuting the suits before the

competent Court.

sd/-

[S.S. SHINDE, J.]
sut/SEP11

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Satish Kundanlal Agarwal vs The State Of Maharashtra And Ors on 30 September, 2011

Bombay High Court
Satish Kundanlal Agarwal vs The State Of Maharashtra And Ors on 30 September, 2011
Bench: B.H. Marlapalle, Nishita Mhatre
                                   1
                                                               WP-2093-2011 group



    srk




                                                                        
           IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                
                   CIVIL APPELLATE JURISDICTION
                   WRIT PETITION NO.2093 OF 2011




                                               
    Satish Kundanlal Agarwal                       ...Petitioner

          Versus




                                       
    The State of Maharashtra and ors.              ...Respondents
                         ig      WITH
                     WRIT PETITION NO. 3197 OF 2011
                       
    Mr.Mallikarjun Ramgondappa Patil and ors.      ...Petitioners

          Versus
      
   



    The State of Maharashtra and ors.              ...Respondents

                                 WITH
                     WRIT PETITION NO.3463 OF 2011





    Karishma Shankarlal Dass                       ...Petitioner

          Versus





    The State of Maharashtra and ors.              ...Respondents




                                                ::: Downloaded on - 09/06/2013 17:47:46 :::
                                    2
                                                             WP-2093-2011 group

                                   WITH
                       WRIT PETITION NO.6262 OF 2011




                                                                      
                                              
    Prof. T.K. Zanke                             ...Petitioner

          Versus




                                             
    The State of Maharashtra and ors.            ...Respondents


                                   WITH
                       WRIT PETITION NO. 7143 OF 2011




                                       
    Hamid Babulal Munde
                          ig                     ...Petitioner

          Versus
                        
    The State of Maharashtra and ors.            ...Respondents

                                   WITH
      


                       WRIT PETITION NO. 7348 OF 2011
   



    Deoram Bajaba Dhamane                        ...Petitioner

          Versus





    The State of Maharashtra and ors.            ...Respondents

                                   WITH
                       WRIT PETITION NO. 7756 OF 2011





    Shri Sanjay Raghunath Kulkarni               ...Petitioner

          Versus

    The State of Maharashtra and ors.            ...Respondents




                                              ::: Downloaded on - 09/06/2013 17:47:46 :::
                                    3
                                                           WP-2093-2011 group

                               WITH
               ORIGINARY ORIGINAL CIVIL JURISDICTION




                                                                    
                    WRIT PETITION NO.951 OF 2011




                                           
    Altamash Alnasir Ghaznavi                  ...Petitioner

          Versus




                                          
    The State of Maharashtra and ors.          ...Respondents

                                 WITH
                     WRIT PETITION NO. 953 OF 2011




                                       
                        
    Raghavendra Bhimrao Deshpande              ...Petitioner

          Versus
                       
    The State of Maharashtra and ors.          ...Respondents

                               WITH
      


               WRIT PETITION LODGING NO. 1409 OF 2011
   



    Krishna Kumar Sharma                       ...Petitioner

          Versus





    The State of Maharashtra and ors.          ...Respondents

                               WITH





               WRIT PETITION LODGING NO.1426 OF 2011

    Evelyn D'Souza                             ...Petitioner

          Versus

    The State of Maharashtra and ors.          ...Respondents




                                            ::: Downloaded on - 09/06/2013 17:47:46 :::
                                    4
                                                                 WP-2093-2011 group




                                                                          
                               WITH
               WRIT PETITION LODGING NO.1427 OF 2011




                                                  
    Mrs. Rina B. Chakravarty                         ...Petitioner




                                                 
          Versus

    The State of Maharashtra and ors.                ...Respondents




                                       
    Mr.Mihir Desai for petitioners in W.P.Nos.2093 and 7348 of 2011.
                        
    Mr.S.G. Deshmukh with Mr.Abhijeet Kandarkar for petitioners in
    W.P.No.3463 of 2011.
                       
    Mr.S.A.Sawant with Ms.Gunjan Shah for petitioners in W.P.Nos.3197 and
    6262 of 2011.
      


    Mr.M.S.Bhandari with Ms. Pranjali Bhandari for petitioners in W.P.Nos.
    951 and 953 of 2011.
   



    Mr.Vivek Salunke for petitioners in WP (L) No.1409, 1426 and 1427 of
    2011.





    Mr.J.S.Chandanani for resp.no.4 in W.P.No.3463 of 2011 and for resp.no.
    3 in W.P.Nos.951 and 953 of 2011 and for Resp.No.5 in W.P.(L) Nos.
    1409, 1426 and 1427 of 2011.





    Mr.Rui A. Rodrigues for UGC in all petitions and for AICTE in W.P.No.
    2683 of 2011.

    Mr.R.A.Lokhande for resp.no.4 in W.P. No.2093 of 2011.

    Mr.Shriram Chaudhary with Mr. Vishwanath Talkute for resp.nos.5 and 6
    in W.P. No.2093 of 2011.




                                                  ::: Downloaded on - 09/06/2013 17:47:46 :::
                                    5
                                                                 WP-2093-2011 group


    Mr.Nitin Jamdar with Mr.Haribhau Deshinge for resp.no.2 in W.P. No.




                                                                          
    3197 of 2011.




                                                  
    Mr.Rajiv Chavan with Mr.Vinod Joshi for resp.no.4 in W.P.No.7348 of
    2011.

    Mr.S.K.Shinde, Additional G.P. with Mr.A.B. Vagyani, AGP for State in




                                                 
    all Appellate Side petitions.

    Ms.S.M.Dandekar, AGP for State in W.P.No.951 of 2011.

    Mr.M.D.Naik, AGP for State in W.P.No.953 of 2011 and W.P.(L) Nos.




                                       
    1409, 1426 and 1427 of 2011.
                        
    Mr.Rajiv Chavan with Mr.G.Hariharan for Union of India in W.P. (L)
    1409, 1426 and 1427 of 2011.
                       
                            CORAM: B. H. MARLAPALLE &
                                   SMT. NISHITA MHATRE, JJ.

September 30, 2011.

ORAL ORDER (PER B.H.MARLAPALLE,J.)

1. This group of petitions raises common challenge to the

Government Resolution dated 5th March 2011 issued by the State of

Maharashtra through the Department of Higher and Technical Education

and to the extent of Clauses 11(1), 11(3) and 11(4) of the said G.R.

There is no dispute that the impugned GR has replaced the earlier GR

dated 25/2/2011 and, therefore, the challenge to the same clauses of the

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GR dated 25/2/2011 is required to be considered with reference to the

GR dated 5/3/2011 as the petitions were filed prior to the GR dated

5/3/2011. Hence these petitions are being decided by this common order.

2. The petitioners are either working as Lecturers / Professors at the

graduation or post graduation level in different colleges affiliated to non-

agricultural Universities and with the said universities as well as in the

Government colleges (Engineering and Non-agricultural) in the State of

Maharashtra. On 31/12/2008 the Government of India through the

Ministry of Human Resources Development addressed a letter to the

Secretary – University Grants Commission (UGC) regarding the scheme

of revision pf pay of teachers and equivalent categories in the Universities

and Colleges, following the revision of pay scales of Central Government

employees on the recommendations of the Sixth Central Pay Commission

(SCPC). The said communication sets out elaborately the educational

qualifications, revised pay scales, career advancement scheme, annual

increments, pay fixations and age of superannuation etc. The pay scales

of the Professors in Graduate as well as Post Graduate Colleges have

been revised as under:

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(i) Assistant Professor – Rs.15,600 – 39,100.

(ii)Associate Professor – Rs. 37,400 – 67,000.

So far as the post of Professor is concerned, the pay band of Rs.37,400 –

67,000 would be applicable with higher Academic Grade Pay (AGP) than

applicable to the post of Associate Professor. We are mainly concerned

with the age of superannuation clause and the said clause reads as under:

“(f)

Age of Superannuation:

(i) In order to meet the situation arising out of shortage of
teachers in universities and other teaching institutions and the

consequent vacant positions therein, the age of superannuation

for teachers in Central Educational Institutions has already been
enhanced to sixty five years vide the Department of Higher
Education letter No.F.No.119/2006-U.II dated 23.3.2007, for

those involved in class room teaching in order to attract eligible
persons to the teaching career and to retain teachers in service
for a longer period. Consequent on upward revision of the age

of superannuation of teachers, the Central Government has
already authorized the Central Universities, vide Department of
Higher Education D.O. letter No.F.1-24/2006-Desk(U) dated
30.3.2007 to enhance the age of superannuation of Vice-
Chancellors of Central Universities from 65 years to 70 years,

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subject to amendments in the respective statutes, with the
approval of the competent authority (Visitor in the case of

Central Universities).

(ii) Subject to availability of vacant positions and fitness,
teachers shall also be reemployed on contract appointment

beyond the age of sixty five years up to the age of seventy years.
Re-employment beyond the age of superannuation shall,
however, be done selectively, for a limited period of 3 years in

the first instance and then for another further period of 2 years

purely on the basis of merit, experience, area of specialization
and peer group review and only against available vacant

positions without affecting selection or promotion prospects of
eligible teachers.

(iii) Whereas the enhancement of the age of superannuation for

teachers engaged in class room teaching is intended to attract
eligible persons to a career in teaching and to meet the shortage
of teachers by retaining teachers in service for a longer period,

and whereas there is no shortage in the categories of Librarians
and Directors of Physical Education, the increase in the age of
superannuation from the present sixty two years shall not be

available to the categories of Librarians and Directors of
Physical Education.”

3. On the applicability of the said scheme, clauses p(i) and p(v) of the

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said communications read as under:

(p)(i) This scheme shall be applicable to the teachers and other
equivalent cadres of Library and Physical Education in all the
Central Universities and Colleges thereunder and the Institutions

Deemed to be Universities whose maintenance expenditure is
met by the UGC. The implementation of the revised scales shall
be subject to the acceptance of all the conditions mentioned in

this letter as well as Regulations to be framed by the UGC in this

behalf. Universities implementing this Scheme shall be advised
by the UGC to amend their relevant statutes and ordinances in

line with the UGC Regulations within three months from the
date of issue of this letter.

(p)(v) This Scheme may be extended to universities, Colleges

and other higher educational institutions coming under the
purview of State legislatures, provided State Governments wish
to adopt and implement the Scheme subject to the following

terms and conditions: (emphasis supplied)

(a) Financial assistance from the Central Government to State

Governments opting to revise pay scales of teachers and other
equivalent cadre covered under the Scheme shall be limited to
the extent of 80% (eighty percent) of the additional expenditure
involved in the implementation of the revision.

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(b) The State Government opting for revision of pay shall
meet the remaining 20% (twenty percent) of the additional

expenditure from its own sources.

(c) Financial assistance referred to in sub-clause (a) above
shall be provided for the period from 1.01.2006 to 31.03.2010.

(d) The entire liability on account of revision of pay scales
etc. of university and college teachers shall be taken over by the

State Government opting for revision of pay scales with effect

from 1.04.2010.

(e) Financial assistance from the Central Government shall be
restricted to revision of pay scales in respect of only those posts
which were in existence and had been filled up as on 1.01.2006.

(f) State Governments, taking into consideration other local
conditions, may also decide in their discretion, to introduce
scales of pay higher than those mentioned in this Scheme, and

may give effect to the revised bands / scales of pay from a date
on or after 1.01.2006, however, in such cases, the details of
modifications proposed shall be furnished to the Central

Government and Central assistance shall be restricted to the Pay
Bands as approved by the Central Government and not to any
higher scale of pay fixed by the State Government(s).

(emphasis supplied)

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(g) Payment of Central assistance for implementing this

Scheme is also subject to the condition that the entire Scheme of

revision of pay scales, together with all the conditions to be laid
down by the UGC by way of Regulations and other guidelines
shall be implemented by State Governments and Universities

and Colleges coming under their jurisdiction as a composite
scheme without any modification except in regard to the date of
implementation and scales of pay mentioned herein above.

ig (emphasis supplied)

4. On the date of implementation of the revised pay and allowances

and payment of arrears etc. it was stated that the revised pay and dearness

allowance would be effective from 1/1/2006 and other allowances shall

be paid with effect from 1/9/2008. Payment of arrears of 40% of the total

arrears was to be paid during the current financial year i.e. 2008-2009

after deduction of admissible income tax. It was also clarified that the

revised pay in the relevant pay band and the Academic Grade Pay

together with the applicable allowances including arrears of salary as

mentioned above shall be paid to all eligible candidates under the scheme

pending framing of Regulations by the UGC. The Government of

Maharashtra, therefore, without waiting for the Regulations being framed

by the UGC issued a GR on 12th August 2009 and implemented the

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scheme of the Union of India as formulated through the communication

dated 31st December 2008 so as to revise the pay scales on par with the

recommendations of the SCPC. However, there was no enhancement in

the age of retirement of the colleges as well University teachers.

5. It is also pertinent to note that the UGC brought into force the

University Grants Commission (Minimum Qualifications for

Appointment of Teaches and other Academic Staff in Universities and

Colleges and other Measures for the Maintenance of Standards in Higher

Education) Regulations, 2010 (for short the UGC Regulations 2010) and

they came to be published in the Gazette of India dated 18 th September

2010.

6. It is pertinent to note at this stage that the teachers and principals in

the Government colleges (Engineering, Polytechnic and other non-

agricultural colleges) retire at the age of 58 years and there was no

increase in the age of retirement till the impugned GR was issued. So far

as graduation and post graduation teachers in the aided and un-aided

private colleges are concerned, their age of retirement has been 60 years

including the Principals. However, by the impugned GR the State

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Government has proposed to bring about uniformity in the age of

retirement of the teachers at all levels i.e. in polytechnics, degree colleges

as well as post graduate institutes. The age of retirement of all these

teachers has been enhanced to 62 years. Whereas for the Principals in all

the colleges (Government, private aided and private unaided), the age of

retirement has been enhanced to 65 years. At the same time, the

enhancement in the age of retirement is not unconditional and it is subject

to review of performance by a Committee constituted by the Government.

For the Assistant Professors, Associate Professors and Professors the

review is at the age of 60 years, whereas for the Principals such a review

is at the age of 62 years and continuation beyond the age of 60 years or

62 years, as the case may be, is subject to the Review Committee’s

recommendations. Let us, therefore, reproduce the relevant impugned

clauses of the G.R. dated 5th March 2011

11- ojhy loZ laLFkkarhy v/;kid rFkk izkpk;kZaP;k lsokfuo`RrhlkBh

eqnrokkysY;k vl.ks vko’;d vkgs-

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2½ — —

3½ laca/khr v/;kid@izkpk;kZauh Ph.D. vFkok fo|kihB vuqnku

vk;ksx rFkk vf[ky Hkkjrh; ra=f’k{k.k ifj”knsP;k fud”kkuqlkj ‘kh

Ph.D.

led{k v’kh ‘kS{k.khd vgZrk /kkj.k dj.ks vko’;d jkghy-

4½ laca/khr v/;kid@izkpk;Z ;kaP;k eqnrok<hP;k fnukadkiwohZps

ekxhy ikp o"kkZrhy okf"kZd xksiuh; vgoky fopkjkr ?ksÅu] lnj xksiuh;
vgokykph loZlk/kkj.k ewY;ekiukph izrokjh fdeku rhu o"ksZ mRÑ"V (A)

vkf.k nksu o"ksZ fuf'pr pkaxyk (B+) vl.ks vko';d vkgs-

7. Clause 11 of the impugned GR states that the initial appointments

of the Professors / Principals must be in keeping with the Rules and the

qualifications laid down were satisfied for such appointments. The

continuation beyond the age of 60 years is subject to the clearance

regarding the physical and mental fitness by the Government Medical

Committee. The Professor / Principal concerned must have acquired the

Degree of Ph.D. or equivalent educational qualification. While

considering the cases of the Professors / Principals for retention beyond

the age of 60/62 years the ACRs for the last five years would be

considered by the Performance Committee and for being retained beyond

such years the Professor / Principal concerned must have “A” Grade

rating for three years and “B+” Grade rating for the remaining two years.

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8. It is submitted by the petitioners that the insistence of Ph.D. Degree

and the assessment of performance at the age of 60 or 62 years, as the

case may be, for being retained till the age of 62 years or 65 years is

illegal, unreasonable, harsh, unrealistic and contrary to the UGC

Regulations, 2010. When the prescribed qualifications for the post of

Assistant Professor do not provide for a Ph.D. Degree as the necessary

qualification, the State cannot be allowed to insist on such a qualification

for being continued up to the age of 62 years. Once the UGC Regulations

have extended the age of retirement to 65 years unconditionally, it is not

permissible for the State Government to extend the age of retirement on

such conditions of educational qualifications etc. Mr.Desai, the learned

counsel appearing for some of the petitioners submitted that the UGC Act

was enacted by the Parliament in exercise of its powers under Entry 66 of

List 1 to Schedule VII of the Constitution and, therefore, it is a Central

Legislation as contained in Article 254(1) of the Constitution. The

formulation of service conditions of the university and college teachers,

including the determination of the age of superannuation is the subject

matter of State Legislation as the same would fall within Entry 25 of List

III and there cannot be any conflict between the provisions of the UGC

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Regulations and the Rules framed by the State Government for the

service conditions of such teachers. In short the State Government is

bound by the UGC Regulations and if the said Regulations have not

imposed any conditions for extending the age of superannuation beyond

60 years, it would not be within the competence of the State Government

to impose any conditions or any conditions like the Ph.D. degree or

performance assessment by a specially constituted committee. The

enhancement in the age of retirement is required to be unconditional

subject to the incumbent being found medically fit. The Regulations

formulated by the UGC are a composite package and it is not permissible

for the State Government to accept something unconditionally and

impose conditions while granting some other benefits. If the UGC in its

wisdom has decided to enhance the age of retirement unconditionally, the

decision of the State to impose the impugned conditions is illegal and

requires to be quashed and set aside. It was also urged that even the

preamble of the impugned Resolution has considered the vacancy

position and the scarcity of experienced and qualified college teachers. It

has been stated that there are about 17000 vacancies of Assistant

Professors, Associate Professors and Professors etc. and, therefore, there

is a need to retain the experienced college and university teachers by

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enhancing the age of retirement. On the backdrop of these realities the

State Government ought to have extended the age of retirement without

imposing any conditions so long as the concerned teachers were found to

be medically fit. When the Ph.D. degree is not an essential qualification

for appointment to the post of Assistant Professor or for granting senior

scale / selection grade, imposing of such a condition for enhancing the

age of retirement up to 62 years is arbitrary and more so when the

Professors concerned have reached at the fag end of their career and

insistence on the Ph.D. degree qualification would be, therefore, an

impossible condition. If such a condition is followed strictly coupled

with the assessment of performance, the enhancement in the age of

retirement would remain on paper and it would be only an illusion as

there would be hardly any college teachers who would be eligible for

being retained till the age of 62 years. The learned counsel also brought

to our notice that similar challenge has been allowed by the High Court of

Jharkhand in Writ Petition No.363 of 2010 and others, the High Court of

Patna in CWJC No.11348 of 2010 and ors. and the High Court of

Karnataka in Writ Petition No.13429 of 2011 and ors.

9. The State Government has filed affidavit in reply through the In-

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charge Joint Director of Higher Education in Writ Petition No.953 of

2010 and the same has been adopted in all the petitions. Similarly the

UGC has filed affidavit in reply in Writ Petition No.2093 of 2011 and the

same has been adopted in other petitions as well. The State Government

has opposed the petitions whereas the UGC has placed on record the

UGC Regulations of 2000 and UGC Regulations of 2010. It has also

been pointed out that the Government of India had revised the pay scales

of teachers in the Colleges following the revision of pay scales of Central

Government employees on the recommendations of the FCPC vide its

letter dated 27th July 1998 addressed to the UGC and by the said letter

while revising the pay scales in line with the Fifth Pay Commission

Recommendations the age of superannuation of University and College

teachers was fixed at 62 years and it was left open to the University or

College to re-employ superannuated teacher according to the guidelines

framed by the UGC up to the age of 65 years. Accordingly, the UGC

Regulations of 2000 increased the age of superannuation to 62 years for

college and university teachers. On 23rd March 2007 the Government of

India addressed a letter to the UGC for enhancement of age of

superannuation from 62 years to 65 years for the teaching positions in the

centrally funded institutions in higher and technical education. As per the

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said letter the age of superannuation of all persons who were holding

teaching positions on regular employment in centrally funded institutions

in higher and technical education under the Ministry of Human

Resources Development shall be increased from 62 years to 65 years. It

was clarified in the said communication that the enhancement of

retirement age as mentioned above and the provision for re-employment,

would apply only to persons in teaching positions against the posts

sanctioned to the centrally funded higher and technical education

institutions coming under the purview of the HRD Ministry so as to

overcome the shortage of teachers. While framing the UGC Regulations

of 2000 the Government of India’s directives have been taken into

consideration and the age of retirement has been increased to 62 years for

the college and university teachers. It is pertinent to note that the UGC

has not specifically commented on the contentions of the petitioners or

for that matter of the State Government on their respective claims in these

petitions. The UGC has not commented adversely on the GR dated 5th

Mach 2011 issued by the Government of Maharashtra and the impugned

conditions under Clause No.11 therein.

10. So far as the Government of Maharashtra is concerned, it is

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contended that the impugned GR has not been issued to permit or allow

the candidates without Ph.D. degree to continue endlessly in service and

the State Government has taken a policy decision to ensure that only

those professors / principals who possess the Ph.D. degree are granted the

benefit of enhancement in the age of retirement. Though there was no

requirement for a candidate to be appointed to the post of Assistant

Professor, of possessing a Ph.D. degree but to prevent the falling

standards of education and to raise the standard of higher and technical

education it was felt necessary to insist on a Ph.D. degree coupled with

the performance assessment of the teachers during the last five years.

Reference has been made to the notification dated 1st June 2009 issued by

the UGC and making it compulsory for any candidate to be eligible for

appointment as Assistant Professor with any university or college to

possess the qualifications of NET / SET / Ph.D. degree. As per the State

Government the said notification of the UGC is a standing proof of the

recommendation by the Central Government as well as UGC for the felt

need to insist on Ph.D. degree while granting enhancement in the age of

retirement to the college as well as university professors. It is also

pointed out that the teachers who do not possess a Ph.D. degree and who

would otherwise retire at the age of 60 years cannot claim to be entitled to

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be continued in service merely because the age of superannuation has

been raised. Such teachers in normal course would have retired at the age

of 60 years and imposing conditions of higher qualifications or

performance of B+ or above level during the last five years cannot be

termed to be unreasonable conditions. The State Government has not

violated or acted in breach of the UGC Regulations 2010 or the

Government of India’s instructions dated 31st December 2008. The State

Government is well within its rights, while enhancing the age of

retirement, to impose conditions of higher qualifications and assessment

of performance during the last five years. If such conditions are found to

be unacceptable to the Government of India or the UGC, it is entirely a

matter between the State of Maharashtra and the UGC or the Government

of India as the case may be. The petitioners cannot claim that they must

be given the benefit of enhancement of age of retirement unconditionally.

It is emphasised by the State Government that in the interest of

maintaining better standards of higher and technical education, it has a

right to have a scrutiny of college and university teachers for deciding

about their continued utility and more so when such teachers are from the

Government colleges or Government aided private colleges. When the

teachers are being paid from public funds, it would be competent for the

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State Government to lay down conditions to decide the continued utility

of such teachers in public interest. It is also reiterated that in the

impugned GR there is no conflict between the powers of the Central

Government or for that matter the UGC on one hand and the State

Government on the other hand. In support of these contentions the State

Government has relied upon the following decisions of the Supreme

Court:

(i) The State of Maharashtra and ors Vs. Association of
Maharashtra Education Service Class II Officers and ors.

[(1974) 4 SCC 706]

(ii)T.P.George and ors. Vs. State of Kerala and ors. [1992
Supp (3) SCC 191] and

(iii)B. Bharat Akumar and ors. Vs. Osmania University and

ors. [(2007) 11 SCC 58].

11. In the writ petitions before the High Court of Jharkhand the

common question involved was whether the UGC Regulations 2010

would be binding upon the State Government / State Universities so far as

it related to the enhancement of age of teachers of universities from 62 to

65 years. The State of Jharkhand vide its Resolution dated 10/10/2009

had decided to implement the scheme formulated by the Government of

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India through its letter dated 31/12/2008 with respect to the revision of

pay as well as enhancement of age of superannuation with effect from

1/1/2006. The Government of India vide its letter dated 11/5/2010 had

intimated to the Government of Jharkhand that payment of central

assistance for implementing the scheme would be subject to the condition

that the entire scheme of revision of pay scales together with all the

conditions to be laid down by the UGC by way of Regulations and other

guidelines, shall be implemented by the State Government. Some of the

lecturers in different colleges filed writ petitions for directions to enhance

the age of superannuation from 62 to 65 years and while these petitions

were pending before the High Court, the State of Jharkhand passed a

Resolution on 20/11/2010 prescribed the age of superannuation at 62

years under Section 67 of the Jharkhan University Act. The learned

Single Judge of the High Court of Jharkhand while allowing the petitions

recorded his findings as follows:

“Thus, in view of the proposition laid down by the Hon’ble
Supreme Court as referred to above, stipulation made under the
regulation regarding enhancement of the age from 62 to 65 years
cannot be said to be an encroachment of the field of the State
Legislature. That being the situation, age of superannuation

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prescribed under Section 67 of the Jharkhand University Act
framed under Entry 25 of List III of the Constitution of India

being in conflict with the regulation so far it relates to

enhancement of the age from 62 to 65 would be void and
inoperative in terms of Article 254(1) of the Constitution of India.
Accordingly order as contained in Memo No.1188 dated

20.11.2010 refusing to extend the age from 62 to 65 is hereby set
aside.

Thus, in view of the conclusion arrived at just hereinabove

and also conclusion that scheme formulated by way of regulation
is to be adopted a composite one, the age of superannuation of

the petitioners would stand extended to 65 years. As a
consequence whereof the petitioner who was in service but was
made to retire on 30.6.2010 or thereafter on attaining the age of

62 years would be entitled to the benefit of extended age of

superannuation as a result of which they are to be taken back in
service with continuity and all consequential benefits.”

The decisions of the High Court of Patna and the High Court of

Karnataka (Supra) are almost on the same lines as the above view taken

by the High Court of Jharkhand.

12. The only questions that fall for our considerations are (1) whether

the State Government acted illegally by incorporating Clause 11(3) and

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11(4) in the impugned GR dated 5/3/2011 while enhancing the age of

retirement from 60 to 62 years for the college and university teachers and

from 62 to 65 years for the college principals and (2) whether it is

permissible for the State Government to subject the professors/ principals

for performance review of last five years and to insist on B+ and above

grade rating for retention beyond the age of 60 or 62 years as the case

may be.

13.

So far as clause 11(1) is concerned, it mandates that the

Professors / Principals concerned ought to have been appointed as per the

Rules prescribed by the UGC and the State Government and they comply

with the prescribed conditions of qualifications etc. We do not find any

error or incompetence on the part of the State Government in insisting

that the teachers who are going to be retired at the age of 62 years must

have been appointed at the initial stage, as per the Rules and other

conditions of qualifications and experience etc. prescribed by the UGC or

the State Government were fulfilled. In our opinion, the challenge to

Clause 11(1) of the impugned GR does not need any further elaboration

and it is devoid of any merits. Hence, it is rejected summarily.

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14. Coming to the clause of performance review for being eligible to

be retained beyond 60 years of age, it has been fairly conceded by the

State Government that the mechanism for performance assessment is at

place in the Government colleges and the Annual Confidential Reports

(ACRs) of each lecturer / principal / professor in such colleges are written

and reviewed and, therefore, there would not be any difficulty in

assessing the performance of past five years of these professors /

principals. So far as private aided colleges are concerned, there is no

dispute that most of these colleges do not have at place the mechanism

for performance review and there is hardly any aided private college in

the State of Maharashtra which has a formal system of performance

assessment of teachers in each academic year. If the mechanism for

performance is not prevalent in the private aided colleges, there would be

merit in the petitioners’ arguments that clause 11(4) of the impugned GR

cannot be implemented, it is unrealistic and without application of mind

to the ground realities. Having realised the prevailing conditions in the

private aided colleges, the State Government has come out with an

alternative mechanism for performance review and a number of

parameters have been suggested with a view to decide the continued

utility of the teachers / principals beyond the age of 60 years and by the

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Performance Review Committee (PRC).

15. So far as clause 11(3) of the impugned GR is concerned,

Mr.Shinde, the learned Additional GP, on instructions, stated that after the

first GR dated 25/2/2011 was issued, the State Government considered

the cases of 155 college / university teachers who had attained the age of

60 years or were due to attain the age of 60 years, so as to review their

performance and it was noticed that 80 of these professors were Ph.D.

degree holders. From amongst the Ph.D. degree holders 66 have been

granted the befit of enhanced age of retirement of 62 years and 14 of

them have been denied because of their unsatisfactory performance

though some of them may be Ph.D. degree holders. Mr.Shinde, therefore,

urged before us that Clause 11(3) cannot be said to be an illusion and

there are college / university teachers as well as the principals who hold a

Ph.D. degree. He urged that the State Government must be allowed to

subject the professors / principals to the scrutiny of performance review,

with the modified scheme of performance assessment, in the interest of

better standards in higher and technical education.

16. In the case of Association of Maharashtra Education Service Class

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II Officers (Supra), the UGC report for the year 1966-67 recommending a

revision of pay scales for various categories of university and college

teachers was accepted by the Government of India and by its letter dated

7th April 1966 to the Education Secretary, Government of Maharashtra,

the Government of India undertook to pay 80 % of the expenditure

incurred by the university or the colleges for implementing the scheme of

UGC which was brought into operation with effect from April 1, 1966.

As per the said scheme, the UGC had recommended the following scale

of pay to the college / university lecturers:

Senior Lecturers – Rs.700-40-1100

Lecturers (Senior Scale) – Rs.400-30-640-40-800

Lecturers (Junior Scale) – Rs.300-25-600.

However on 6/11/1967 the Government of Maharashtra passed a

resolution accepting in principle the proposal of the Government of India

but Note 1 to the said resolution stated that only such persons who

possess at least a second class Master’s Degree of a statutory university

would be eligible for the revised scales and in regard to the scale of Rs.

700-1100 it was further necessary that the teachers were recognised or

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approved by the university for post graduate work as on 1/4/1966 and had

in fact done post graduate teaching for a minimum period of one year

prior to 1/4/1966. The respondent teachers meeting these education

requirements for the pay scale of Rs.700-1100 possessed the requisite

qualification but the State Government refused to offer them pay scales

unless they appeared before the State Public Service Commission for

selection as per the notice dated 2/3rd March 1970. The teachers,

therefore, approached this Court praying for quashing of the notices dated

2/3rd March 1970 and for further prayer that they be placed in the pay

scale of Rs.700-1100 with effect from 1/4/1966. This Court allowed the

petitions and quashed the notices directing to appear before the

Maharashtra State Public Service Commission. The challenge of the

State of Maharashtra to the order passed by this Court failed before the

Supreme Court and the Supreme Court observed, inter alia, thus,

“8. The contention that Lecturers in Class II of the
Maharashtra Educational Service must present

themselves for selection before the Public Service
Commission was introduced apparently on a
misunderstanding of the Scheme initiated by the
University Grants Commission. That Scheme envisages

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no promotion of Lecturers from one Class to another. It
concerns itself with the revision of pay-scales of the

Colloegiate teachers and its object was to raise the

salary-structure as one of the basic essentials for
improvement of educational standards. The letter of the
Government of India to the State Government, dated

April 7, 1966 shows that the subject matter of the
correspondence was “Improvement of salary Scales of
College and University teachers” and that the

Government of India had accepted the recommendations

of the University Grants Commissions for (a) “revision
of the salary scales” of collegiate teachers with effect

from April 1, 1966. The Government of Maharashtra
misunderstood the Scheme as requiring the promotion of
Class II teachers to Class I and since under its Rules

such a promotion could not be granted without

consultation with the Public Service Commission, it
asked respondents 2 to 11 to offer themselves for
selection by that Commission. The imposition of such a

condition being based on a misunderstanding of the
Scheme proposed by the University Grants Commission,
the High Court was right in directing the Government to

place respondents 2 to 11 in the pay-scale of 700-1100
without asking them to appear before the Public Service
Commission. As stated by the High Court whether
respondents 2 to 11 should, as a consequence of the

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upgrading of their pay-scale, be placed in Class I
Educational Service and whether they are entitled to the

other benefits available to Class I officers is an entirely

separate matter which the State government will be at
liberty to decide in accordance with the relevant rules
and procedure.”

It is thus clear that the Supreme Court did not approve the notices

issued calling upon the Lecturers to appear before the Maharashtra Public

Service Commission but at the same time there was no interference either

by this Court or by the Supreme Court in the conditions of higher

qualifications set out by the State Government by its resolution dated

6/11/1967 though such conditions were not set out in the letter dated 7th

April 1966 of the Government of India or in the scheme framed by the

UGC. The State Government decision to prescribe higher qualification,

was not faulted.

17. In the subsequent decision in the case of T.P. George (Supra) the

UGC Scheme of 1986 framed pursuant to the Malhotra Committee’s

Report was circulated by the Government of India on 17th June 1987 and

for adoption by all States / Union Territories. It was also clarified that the

adoption of the scheme was voluntary and the only result which might

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follow from the State Government not adopting the scheme might be that

the State Government would forfeit the offer of reimbursement from the

Government of India to the extent of 80 % involved in giving benefit of

the recommendation of the scales as recommended by the scheme

(emphasis ours). The age of retirement which was part of the scheme and

which was fixed at 60 years was not followed by the State Government

and at the relevant time the age of retirement for the college / university

lecturers in Kerala was 55 years. The college teachers moved the High

Court and in Writ Appeal No.223 of 1991 the following observations

made by the Division Bench have been approved by the Supreme Court,

“Though Clause 26 of the scheme provides

that the age of superannuation for teachers should be
60 years, and the scheme contemplates certain
improvements in providing for assistance in that

behalf, it is not a scheme which is statutorily binding
either on the State Government or the different
Universities functioning under the relevant statues in

the State of Kerala. What the State Government has
done by its order dated March 13, 1990 is to
implement the UGC Scheme including revision of
scales of pay in relations to teachers in Universities
including Kerala – Agricultural University, affiliated

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colleges, Law Colleges, Engineering Colleges and
qualified Librarians and qualified Physical Education

Teachers with effect from January 1, 1986, subject

however to the express condition that insofar as the
age of retirement is concerned, the present fixation of
55 years shall continue. The contention of the

appellant is that the State Government having
accepted the UGC Scheme, and as the scheme
provides for a higher age of 60 years, all the clauses

of the scheme became applicable. It is not possible

to accede to this contention. Firstly, as already stated
the UGC Scheme does not become applicable

because of any statutory mandate making it
obligatory for the Government and the Universities
to follow the same. Therefore the State Government

had the discretion either to accept or not to accept the

scheme. In its discretion it has decided to accept the
scheme, subject to the one condition, namely, insofar
as the age of superannuation is concerned, they will

not accept the fixation of higher age provided in the
scheme. The State Government having thus accepted
the scheme in the modified form, the teachers can

only get the benefit which flows from the scheme to
the extent to which it has been accepted by the State
Government and the concerned Universities. The
appellant cannot claim that major portion of the

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scheme having been accepted by the Government,
they have no right not to accept the clause relating to

fixation of higher age of superannuation. That is a

matter between the State Government on the one
hand and the University Grants Commission on the
other, which was provided certain benefits by the

scheme. It is for the University Grants Commission
to extend the benefit of the scheme or not to extend
the benefit of the scheme, depending upon its

satisfaction about the attitude taken by the State

Government in the mater of implementing the same.
That is a matter entirely between the State

Government on the one hand and the University
Grants Commission on the other. Teachers of the
private institution concerned are governed by the

statutes framed under the relevant statutory

enactment. As long as the superannuation remains
fixed at 55 years and so long as the State
Government has not accepted the UGC’s

recommendation to fix the age of superannuation at
60 years, teachers cannot claim as a matter of right
that they are entitled to retire on attaining the age of

60 years.” (emphasis ours)

The Supreme Court further went on to state,

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“5. We may further point out that the teachers in
Universities are governed in respect of their

conditions of service and the age of retirement by the

separate statutes made by the Universities concerned.
On the other hand the teachers in private colleges or
affiliated colleges are governed in respect of their

conditions of service by regulations or rules framed by
the Government (separate state (sic set) of statutes).
In these circumstances, the two classes of Universities

teachers and teachers in private colleges cannot be

regarded as similar for the purposes of conditions of
service as to bring the case under Article 14 of the

Constitution”

18. Though the Lecturers could not succeed before the Supreme Court,

the Supreme Court observed that the age of retirement fixed at 55 years

was too low but it would not be for the Court to prescribe the correct age

of retirement and that would be a policy function requiring considerable

expertise which can properly be done by the State Government or the

State Legislature or the Universities concerned. In the case of Bharat

Kumar and ors (Supra) the Supreme Court reiterated the view taken

earlier in the case of T.P.George (Supra). In para 14 and 15 of the said

decision the Supreme Court stated,

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“14. In spite of our best efforts, we have not been
able to follow as to how the judgment of the Kerala

High Court, which has been approved by this Court is,
in any manner, different from the factual situation that

prevails here in this case. It is for that reason that we
have extensively quoted not only the aforementioned
letter dated 27-7-1998 but also the subsequent letters

and the further policy statement. Plain reading of all
these is clear enough to suggest that the scheme was

voluntary and it was up to the State Governments to
accept or not to accept the scheme. Again even if the

State Government accepted a part of the scheme, it
was not necessary that all the scheme as it was, had to

be accepted by the State Government. In fact the
subsequent developments suggest that the State

Government has not chosen to accept the scheme in
full inasmuch as it has not accepted the suggestions on

the part of the UGC to increase the age of
superannuation.

15. Once we take this view on the plain reading of
the scheme, it would be necessary for us to take stock
of the subsequent arguments of Mr. Rao regarding
Entry 66 in List I vis-a-vis Entry 25 in List III. In our
opinion, the communications, even if they could be

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heightened to the pedestal of a legislation, or as the
case may be, a policy decision under Article 73 of the

Constitution, they would have to be read as they

appear and a plain reading is good enough to show
that the Central Government or as the case may be
UGC also did not introduce the element of compulsion

vis-a-vis the State Government and the universities.
We, therefore, do not find any justification in going to
the entries and in examining as to whether the scheme

was binding, particularly when the specific words of

the scheme did not suggest it to be binding and
specifically suggest it to be voluntary.”

19. In the case of All India Judges’ Association v. Union of India [AIR

1993 SC 2493], the Supreme Court considered the necessity to clamp

scrutiny and that too an additional one at the age of 58 years for the

Judicial Officers whose age of retirement was directed to be enhanced to

60 years as per the judgment dated 13th November 1991. The Supreme

Court stated,

“… The benefit of the increase of the retirement age to
60 years shall not be available automatically to all
judicial officers irrespective of thier past record of
service and evidence of their continued utility to the

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judicial system. The benefit will be available to those
who, in the opinion of the respective High Courts,

have a potential for continued useful service. It is not

intended as a windfall for the indolent, the infirm and
those of doubtful integrity, reputation and utility. The
potential for continued utility shall be assessed and

evaluated by appropriate Committees of Judges of the
respective High Courts constituted and headed by the
Chief Justices of the High Courts and the evaluation

shall be made on the basis of the judicial officers’ past

record of service, character rolls, quality of judgments
and other relevant matters.

The High Court should undertake and complete
the exercise in case of officers about to attain the age

of 58 years well within time by following the

procedure for compulsory retirement as laid down in
the respective Service Rules applicable to the judicial
officers. Those who will not be found fit and eligible

by this standard should not be given the benefit of the
higher retirement age and should be compulsorily
retired at the age of 58 by following the said

procedure for compulsory retirement. The exercise
should be undertaken before the attainment of the age
of 58 years even in cases where earlier the age of
superannuation was less than 58 years. It is necessary

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to make it clear that this assessment is for the purpose
of finding out the suitability of the concerned officers

for the entitlement of the benefit of the increased age

of superannuation from 58 years to 60 years. It is in
addition to the assessment to be undertaken for
compulsory retirement and the compulsory retirement

at the earlier stage/s under the respective Service
Rules.”

So far as the judicial officers who had crossed the age of 58 years

and who could not be subjected to the review mechanism, the Supreme

Court stated,

“Since those who have already crossed the age of 58
years have had no benefit of exercising their option to

retire earlier and the point of time at which their

assessment could be undertaken for compulsory
retirement, if any, has also passed, it is not considered
proper to subject them to the review for compulsory

retirement at this stage. They may, therefore,be given
the benefit of the enhanced superannuation age of 60
years without subjecting them for such review.”

20. Admittedly the Government of India by its letter dated 27th July

1998 addressed to the Education Secretaries of all the States / Union

Territories issued directions for implementation of the revision of pay

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scales of teachers in the universities and colleges following the revision

of the pay scales of the Central Government employees on the

recommendations of the Fifth Central Pay Commission. It was

stipulated that the Central Government will provide financial assistance

to the State Government which would opt for these revised pay scales to

the extent of 80 % of the additional expenditure involved in the

implementation of revision and the balance 20 % of the expenditure was

to be borne by the State Governments. The age of retirement was

enhanced to 62 years and the clause of age of superannuation read thus:

“The age of superannuation of university and

college teachers would be 62 years and thereafter no
extension in service should be given. However, it

would be to the university or college to re-employ
the retiring teacher according to the existing

guidelines framed by the UGC up to the age of 65
years.”

Following the instructions of the Government of India as set out in

the letter dated 27th July 1998, the UGC framed its Regulations of 2000

and the Government of Maharashtra adopted the directions of the

Government of India as well as the UGC Regulations of 2000.

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However, it did not increase the age of retirement for the college /

university teachers and during the last about more than ten years neither

the UGC nor the Government of India has ever taken any objection or

taken any steps against the Government of Maharashtra for its failure to

enhance the age of retirement.

21. It is also pertinent to note that age of retirement for the

lecturers/principals with the Government colleges was directed to be

increased by the Nagpur Bench of this court to 60 years by judgment

and order dated 24/7/1989 while allowing Writ Petition No. 788 of 1980

and the consequent thereto on 20/12/1990, the Government of

Maharashtra increased the age of superannuation of Government college

lecturers to 60 years. However, Civil Appeal No. 10994 of 1996 filed by

the Government of Maharashtra against the decision of this court in Writ

Petition No. 788 of 1980 came to be allowed and the judgment of this

court was set aside. The Government of Maharashtra, therefore, issued a

fresh order and recalled the earlier order dated 20/12/1990. The age of

retirement was brought down to 58 years with effect from 30/4/2002 and

till the impugned resolution was issued, the age of retirement of the

teachers and principals in the Government colleges remained at 58 years.

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In these circumstances, it is difficult to accept the contentions of the

petitioners that the scheme framed by the UGC under the instructions of

the Central Government is required to be accepted as a package and the

State Government has no powers to vary the clauses of age of

superannuation. It is also relevant to note that though the Central

Government has enhanced the age of retirement to 65 years and the

Government of Maharashtra has enhanced the age of superannuation to

62 years by the impugned resolution, there is no challenge in any of

these petitions so as to seek a mandamus against the State Government

to fix the age of retirement at 65 years.

22. As observed by the Supreme Court in the case of T.P. George

(Supra) and Bharat Kumar (Supra), if any condition of the UGC

Regulations framed under the instructions of the Central Government

and more particularly condition of age of superannuation, has not been

followed by the State Government, it is entirely a matter between the

State Government on one hand and the UGC and the Central

Government on the other hand. Clause (8)(f) of the scheme formulated

by the Government of India vide its letter dated 31/12/2008, clearly

indicated that it was applicable for the teachers in the University and

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other teaching institutions in Central Educational Institutions and Clause

8(t) of the said scheme also clearly stated that the scheme was applicable

to the teachers and other equivalent cadre in all the Central Universities

and colleges thereunder as well as the institutions deemed to be the

University whose maintenance expenditure is met by the UGC. Sub-

clause (f) below clause 8(p) of the said scheme stated,

“(f) The
ig State Governments, taking into
consideration other local conditions, may also
decide in their discretion, to introduce scales of pay

higher than those mentioned in this scheme, and
may give effect to the revised bands/scales of pay

from a date on or after 1/1/2006; however, in such
cases, the details of modifications proposed shall be

furnished to the Central Government and Central
assistance shall be restricted to the Pay Bands as

approved by the Central Government and not to any
higher scale of pay fixed by the State
Government(s).” (emphasis ours)

This clause gave a flexibility to the State Government in revising

the pay scales and also to fix the date of implementation on or after

1/1/2006 depending upon the local conditions and other considerations.

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It was clarified that in case the pay scales would be higher than the

prescribed in the scheme, the Central assistance would be restricted to

the Pay bands as approved by it. Clause 8(p)(i)(g) of the said scheme

also stated that the payment of Central assistance for implementing the

scheme would also be subject to the condition that the entire scheme of

revision of pay scales together with all the conditions to be laid down

by the UGC by way of Regulations and other guidelines shall be

implemented by the State Governments and Universities and Colleges

coming under their jurisdiction as a composite scheme without any

modification except in regard to the date of implementation and scales

of pay mentioned herein above. The learned counsel for the petitioners

have placed reliance on this clause in support of their contentions that

the scheme was a composite scheme for being implemented and without

any modifications except with regard to the date of implementation and

scales of pay mentioned in the scheme and there was no discretion left

to the State Government to put any condition while enhancing the age of

superannuation to 62 years. There is nothing to indicate in the

Regulations that the State Government is either called upon to enhance

the age of superannuation or while doing so, it is prevented from

imposing some additional conditions to maintain higher standards of

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education. It is at this backdrop Mr. Shinde, the learned AGP,

submitted before us that if the challenge to the impugned clauses of the

GR dated 5/3/2011 is allowed by this court, nothing would stop the State

Government from withdrawing the said GR in its totality and re-fix the

age of superannuation at 60 years. Having regard to the UGC

Regulations 2010 read with the scheme framed by the Government of

India vide its letter dated 31/12/2008, we have no doubt in our mind that

the State Government is not prevented from either fixing the age of

superannuation at less than 65 years of age or for imposing some

additional conditions while enhancing the age of superannuation to 62

years, so as to maintain higher standards of education and also to decide

the continued utility of teachers and principals by a performance review

mechanism, beyond the age of 60 or 62 years, as the case may be.

23. Coming to the challenge on insistence of a Ph.D. degree for

getting the benefit of enhanced age of superannuation for the teachers as

well as the principals, it would be appropriate to consider the

educational qualifications prescribed under the UGC Regulations 2010.

For the post of Assistant Professor, the minimum academic qualification

prescribed is a good academic record with 55% marks or an equivalent

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grade at the Master’s Degree level and qualifying in the National

Eligibility Test or an accredited test (State Level Eligibility Test

-SLET/SET). It has been further stated that NET/SLET/SET shall

remain the minimum eligibility condition for recruitment and

appointment of Assistant Professors in Universities /Colleges /

Institutions. However, as per Clause No. 3.3.1 the candidates who are or

have been awarded a Ph.D. degree in accordance with the UGC

(Minimum Standards and Procedure for Award of Ph.D. degree)

Regulations 2009, shall be exempted from the requirement of the

minimum eligibility condition of NET/SLET/SET for recruitment and

appointment of Assistant Professor or equivalent positions in

Universities/Colleges/Institutions. The Ph.D. degree shall be a

mandatory qualification for the appointment of professors and for the

promotion as professors. It is also an essential qualification for all

candidates to be appointed as Associate Professors through direct

recruitment. It is thus clear that for appointment as Assistant Professor,

the minimum qualification is not the Ph.D. degree but certainly it is one

of the qualifications and the candidate with Ph.D. degree is exempted

from NET/SET. A Ph.D. degree is not an essential qualification but it is

one of the qualifications prescribed. For the post of Principal, a

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Master’s Degree with at least 55% marks by a recognized University

with a Ph.D. degree in the concerned/allied/relevant discipline in the

institution concerned with evidence of published work and research

guidance is the prescribed qualification. At the same time, Associate

Professors/Professors with a total experience of 15 years

teaching /research /administration in Universities, Colleges and other

institutions of higher education are also eligible for being appointed to

the post of principals. Clause 4.3.0 of the Regulations has set out the

qualification for Associate Professor and the Ph.D. degree is an essential

qualification. The Regulations framed by the UGC during the last more

than 20 years or so go to show that acquiring of Ph.D. degree even for

the post of Lecturer / Assistant Professor has been an indicator of

advancing the academic achievements and under the Career

Advancement Scheme there is a special consideration for the Ph.D.

degree holders. Whereas for the post of Associate Professor, Professor

and Principal, Ph.D. degree is an essential qualification.

24. The Government of Maharashtra while framing the scheme for

implementation of the directives of the Government of India as well as

the UGC Regulations, by way of policy decision, has set out conditions

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in Clause 11 of the impugned GR dated 5/3/2011 and unless such policy

decision suffers from arbitrariness, inequality, unfairness or otherwise

takes away any legal rights or vested rights, this Court under the power

of judicial review may not cause interference in such decisions. In

addition if the parameters laid down while granting enhancement in the

age of superannuation are found to be impracticable / impossible,

interference by this Court may also be necessary. But having regard to

the figures provided by the learned AGP that out of 155 college teachers

whose cases were scrutinised for retention beyond the age of 60 years,

during the last few months, 80 of them were Ph.D. degree holders, it

would go to show that the requirement of a Ph.D. degree is not

impracticable or impossible or that a vast majority of the teachers will

not stand to benefit by the enhancement of the age of superannuation.

Even otherwise the scope for interference in the academic matters under

the powers of judicial review is also limited. In the case of Maharashtra

State Board of Secondary and Higher Secondary Education v. Paritosh

Bhupeshkumar Sheth [AIR 1984 SC 1543] the Supreme Court held,

“……… the Court should be extremely reluctant to
substitute its own views as to that is wise, prudent and proper

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in relation to academic matters in preference to those
forumatled by professional men possessing technical expertise

and rich experience of actual day-to-day working of

educational institutions and the departments controlling
them.”

In the case of State of U.P. vs. Johri Mal [AIR 2004 SC 3800] a

three-Judge bench while dealing with the limitations / parameters while

exercising the power of judicial review stated that the scope and extent

of power of the judicial review under Article 226 of the Constitution

would vary from case to case, the nature of the order, the relevant

statute as also the other relevant factors including the nature of power

exercised by the public authorities, namely, whether the power is

statutory, quasi judicial or administrative. The power of judicial review

is not intended to assume a supervisory role or done the robes of

omnipresent. The power is not intended either to review governance

under the rule of law nor do the Courts step into the areas exclusively

reserved by the supreme lex to the other organs of the State. The

Supreme Court reiterated the following guidelines on the scope of

judicial review:

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(i) Courts, while exercising the power of judicial review, do
not sit in appeal over the decisions of administrative bodies.

(ii) A petition for a judicial review would lie only on certain

well-defined grounds.

(iii) An order passed by an administrative authority exercising

discretion vested in it, cannot be interfered in judicial review
unless it is shown that exercise of discretion itself is perverse

or illegal.

(iv) A mere wrong decision without anything more is not
enough to attract the power of judicial review; the supervisory

jurisdiction conferred on a Court is limited to seeing that
Tribunal functions within the limits of its authority and that its
decisions do not occasion miscarriage of justice.

(v) The Courts cannot be called upon to undertake the

Government duties and functions. The Court shall not
ordinarily interfere with a policy decision of the State. Social

and economic belief of a Judge should not be invoked as a
substitute for the judgment of the legislative bodies.

25. Coming to the requirement of performance review at the age of

60 and 62 years, as the case may be, while granting the benefit of

enhancement in the age of superannuation the law laid down by the

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Supreme Court in All India Judges’ Association (Supra) does empower

the State Government to scrutinize the service record of an officer so as

to decide his continued utility beyond the age of 58 or 60 years, as the

case may be. Indeed Rule 10 the the Maharashtra Civil Services

(Pension) Rules provides for such a scrutiny at the age of 50 and 55

years as well, so as to decide the retention of the officer concerned in

public interest and if the officer is found to be incompetent, dishonest,

infirm or of doubtful integrity, an order of compulsory retirement on the

basis of the service record and general standing is issued indicating that

the retention of such officer any further would not be in public interest.

In the academic arena, if the State Government has decided to set up a

mechanism so as to assess the performance of college teachers to decide

their continued utility beyond the age of 60 or 62 years, we cannot find

fault with the same, nor can it be said that asking for such scrutiny for

deciding continued utility is in any way illegal, perverse,

unconstitutional or otherwise taking away any vested rights. To

maintain the higher standards of education, research and training it is

necessary that the college / university teachers are subjected to such

performance review periodically and if the State Government has

decided to enhance the age of superannuation beyond the age of 60

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years, the performance review at the age of 60 years cannot be said to

be illegal, capricious or otherwise warranting the interference by this

Court under the powers of judicial review, so long as the mechanism

sought to be put in place is fair, just and reasonable. On the queries

made by us the State Government fairly conceded during the course of

arguments that in the private aided colleges there is hardly any

mechanism at place so as to undertake the performance review of the

college teachers, though such a mechanism is available with the

Government colleges / institutions. Having realised that the assessment

of performance review for the last five years as set out in Clause 11(4)

would not be possible, the Government has proposed suitable

parameters for the performance assessment of Assistant Professors,

Associate Professors as well as Principals. Indeed such parameters

suggested could be only illustrative and not exhaustive. Nonetheless,

emphasis of such exercise to review the performance during the last five

years ought to be on academic achievements and free from personal

bias, unfairness and arbitrariness. The Professors and Principals are

high academicians / administrators and, therefore, in the exercise of

performance review each one of them ought to be provided with a

chance of self assessment. Undoubtedly the Head of the Department /

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Principal would be the reviewing authority, but for the time being the

Government has proposed a committee of four to six members. The

committee envisaged under the impugned GR, in our opinion, did not

reflect the emphasis on academics and, therefore, we suggested the

presence of more academicians in such performance assessment

committees. These suggestions have been accepted by the State

Government in the draft notification placed before us.

26.

It was submitted by Mr.Desai that the teachers who have already

retired on attaining the age of 60 years after the impugned GR was

issued and during the pendency of these petitions, be exempted from

such performance review and granted the benefit of the enhanced age of

superannuation, whether they hold a Ph.D. degree or otherwise. This

submission appears to supported from the directions given by the

Supreme Court in the case of All India Judges’ Association (Supra).

However, on closer scrutiny it appears that the said directions cannot be

per se made applicable in these petitions. The Supreme Court by its

earlier judgment dated 13th November 1991 had issued specific

directions to all the State Governments so as to improve the service

conditions of the members of the subordinate judiciary, through out the

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WP-2093-2011 group

country. One of the directions was to enhance the age of

superannuation to 60 years. The State Governments were directed to

amend the Service Rules so as to implement these directions before a

specific date. However, some of the State Governments approached the

Supreme Court with review petitions raising general objections to some

of the directions issued. The Union of India also had filed a review

petition. The review petitions came to be decided on 24th August 1993.

Thus from 13th November 1991 to 24th August 1993, a large number of

subordinate judicial officers had already crossed the age of 58 years

and the review mechanism proposed by the Supreme Court while

deciding these review petitions could not have been feasible because the

review was required to be undertaken before attaining the age of 58

years. In the instant petitions before us the first GR was issued on 25th

February 2011 and it was substituted by the GR dated 5th March 2011.

By way of interlocutory orders this Court has directed that the

retirement / superannuation of any petitioner during the intervening

period will be subject to the final outcome. At the same time the

learned AGP submitted that even on retirement, some teachers were

subjected to review performance and have been granted the benefit of

enhanced age of retirement despite the fact that they had already

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attained the age of 60 years.

27. The local conditions in the State of Maharashtra are not

comparable to the conditions in the States of Jharkhand, Bihar or

Karnataka, in the field of higher and technical education. In the case

decided by the Jharkhand High Court and which has been relied upon

by Mr.Desai, the State Government has prescribed the age of

superannuation under Section 67 of the Jharkhand University Act

framed under Entry 25 of List III of the Constitution. In the State of

Maharashtra the age of retirement for the college / university teachers

has not been prescribed under the Maharashtra Universities Act, 1994

and the same is prescribed under the Rules framed by the State

Government following the UGC Regulations. We have already dealt

with the prevailing age of superannuation for these academicians in the

State of Maharashtra and there has been no uniformity between the age

of retirement for the lecturers / professors in the Government colleges /

institutions on one hand and the lecturers / professors in the private

colleges aided by the State Government. The universities in the State of

Maharashtra governed by the Maharashtra Universities Act, 1994 are

fully aided by the State Government. In our opinion, therefore, and in

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view of the elaborate reasons we have dealt with hereinabove, the

decisions rendered by the High Court of Jharkhadn, the High Court of

Patna and High the Court of Karnataka and as relied upon by the

petitioners, with respect, cannot be made applicable to the petitioners

before us.

28. We must also deal with an additional facet so as to invite the

State Government’s attention to bring uniformity in performance

assessment so as to decide the continued utility in public interest. As

noted earlier, the lecturers / professors / principals in the Government

colleges / institutions are subjected to performance review at the age of

50 or 55 years as the case may be so as to decide their retention in

service and continued utility and if on assessment of the entire service

record they are found to be incompetent or of doubtful integrity, they

are retired in public interest. The professors / principals in the private

aided colleges as well as the universities covered by the Maharashtra

Universities Act, 1994 are also paid from public funds and, therefore,

all of them ought to be subjected to similar scrutiny in the public

interest, at the age of 50 years, 55 years and 60 years so as to decide

their continued utility for the advancement of academic standards i.e.

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education, training and research. We hope the State Government will

address on this issue as well, as early as possible.

29. It was also urged before us by the learned counsel for the

petitioners that insistence on a Ph.D. degree for enhancement in the age

of superannuation has come as a sudden jolt by the impugned GR and at

the fag end of their career and it is without leaving any scope, despite

their best desires and efforts, to obtain a Ph.D. degree. It was submitted

that in some cases it is possible that the teachers were genuinely

interested in enrolling themselves for Ph.D., but because of the local

conditions in the colleges concerned, they could not do so and for the

reasons not attributable to them. Number of such teachers might have

otherwise contributed for higher academic standards by writing books

or publication of research papers. There may be some teachers whose

books form part of the syllabus and, therefore, it would be harsh to call

upon such teacher, all of a sudden to produce a Ph.D. degree certificate.

The insistence of the State Government on such conditions is

unreasonable and in some cases impossible to achieve.

We have no doubt that there is some merit in these arguments.

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However, we have already stated that under the powers of judicial

review, there is no case made to cause interference in the impugned

policy decision to insist on a Ph.D. degree, as one of the conditions for

the benefit of enhanced age of superannuation. However, our

suggestion to extend a concession for a limited period of three years to

the Assistant Professors who are the beneficiaries of the Career

Advancement Scheme, has been accepted by the State Government so

as to subject them to performance assessment by the Committee. Such a

response by the State Government also meets the twin object of

compassion and equity and the State Government has been fair in

accepting our proposal.

30. In the premises, we hold that clauses 11(1), 11(3) and 11(4) of

the GR dated 5th March 2011 do not suffer from any infirmities /

unconstitutionality and hence the challenge to the validity of the said

clauses is hereby rejected. However, we direct, by way of exception,

for the limited period up to 31st March 2014, to place the cases of the

Assistant Professors who do not possess a Ph.D. degree but have

received the benefits of the Career Advancement Scheme, before the

Performance Review Committee and the said committee shall assess

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their performance as per the parameters set out for deciding their

retention beyond the age of 60 years.

The composition of the Performance Review Committees, shall

be as under:

(a) For the post of Principal:

(i) Vice Chancellor / Pro Vice Chancellor of the concerned

University – Chairman

(ii)Director, Higher Education – Member

(iii)Dean / Professor in the subject concerned – Member

(iv)Registrar of the University – Member Secretary

(b) For Professors, Associate/Assistant Professors in the

non-agricultural Universities:

(i) Vice Chancellor of the concerned University –

Chairman

(ii)Nominee of the Vice Chancellor who is a well known

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educationist – Member

(iii)Professor and Head of the Department of the concerned

subject – Member

(iv)Dean/Expert of the concerned subject – Member

(v) Director, Higher Education – Member

(vi)Registrar of the University – Member Secretary

(c) For Assistant Professors / Associate Professors in the

colleges:

(i) Pro Vice Chancellor / Director of BCUD of the

concerned University – Chairman

(ii)Head of the Department of the concerned subject in the

University – Member

(iii)Principal of the concerned college – Member

(iv)Expert in the concerned subject and nominated by the

Vice Chancellor – Member

(v) Joint Director of Higher Education of the concerned

region – Member

(vi)Controller of Examinations of the concerned University

– Member Secretary

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The Performance Review Committee meetings shall be held at the

University headquarters and every month. The Principals of the

concerned colleges shall forward the names of the college teachers six

months before he / she attains the age of sixty years, to the concerned

University along with the consent for being retained beyond the age of

60 years to the Registrar of the concerned University to take

appropriate steps so that the Performance Review Committee meets

and the performance assessment exercise is completed at least two

months before the teacher attains the age of 60 years.

The State Government to issue the modified GR / notification on

the lines of the draft of the said notification placed before us, within a

period of two weeks from today so as to constitute the Performance

Review Committees and to set out the parameters for performance

assessment.

We also direct that the performance review of the College /

University Teachers and Principals who have retired during the

intervening period i.e. from 28th February 2011 onwards be completed

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as expeditiously as possible and in any case within a period of six

weeks from the issuance of the revised notification. The Principals /

Lecturers / Professors who are found to be fit for being continued till

the age of 62 years or 65 years as the case may be, shall be entitled for

the payment of salary for the intervening period.

The suggestion is made by us to introduce the performance

assessment of the Lecturers / Professors / Principals of the private aided

colleges as well as those at the University level, at the age of 50 or 55

years so as to decide their further retention in service in public interest,

on the lines of Rule 10 of the Maharashtra Civil Services (Pension)

Rules, be considered by the State Government as as expeditiously as

possible.

31. All the petitions stand disposed in terms of the above directions.

(SMT.NISHITA MHATRE, J.) (B. H. MARLAPALLE, J.)

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Shaikh Yusuf Bhai Chawala vs State Of Maharashtra on 29 September, 2011

Bombay High Court
Shaikh Yusuf Bhai Chawala vs State Of Maharashtra on 29 September, 2011
Bench: D.K. Deshmukh, Anoop V.Mohta
                              1               WP2906.04
                                                                Kambli


         IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                            
           ORDINARY ORIGINAL CIVIL JURISDICTION

               WRIT PETITION NO. 2906 OF 2004




                                    
                             ...

1.Shaikh Yusuf Bhai Chawala

2.Mudreka Bhai Saheb T.

3.Shaikh Yusuf Bhai Qasamjee

4.Shaikh Ismail M.F.Potia

5.Shaikh Abdul Tayeb Shaikh Qasimji
…Petitioners

v/s.

1.State of Maharashtra

2.Maharashtra State Board of Wakfs

3.The Settlement Commissioner
and Director of Land Records,

Maharashtra State

4. Shahjzada Qaid Johar Bhai
Saheb Ezuddin Saheb

5.Mustafa Bhai Saheb Safiyuddin

6.Shahzada Ali Asgar Bhai Saheb

Kalimuddin

7.Shaikh Ebrahim A.K.Faizullabhoy

8.Shaikh Mansoor Bhai M.J.Terai …Respondents

WITH

WRIT PETITION NO.899 OF 2011

1.Mrs.Zainub Moriswala

2.Mr.Zulfikar Moriswala

3.Mr.Yusuf Nagarwala
Trustees of Rehmatbai Widow
of Noorbhoy Jeewanji Morishwalla
Charity Trusts …Petitioners

v/s.

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2 WP2906.04

1.State of Maharashtra

2.Maharashtra State Board of Wakfs

3.The Charity Commissioner,

4.The Settlement Commissioner
and Director of Land Records

5.The Chief Executive Officer …Respondents

WITH

WRIT PETITION (L) NO.357 OF 2011

1.Shaikh Yusuf Bhai Chawala

2.Shaikh Ismail M.F.Potia

3.Shaikh Mansoor Bhai M.J.Terai …Petitioners
v/s.

1.State of Maharashtra

2.Maharashtra State Board of Wakfs

3.The Charity Commissioner,

4.The Settlement Commissioner
and Director of Land Records …Respondents

Mr.Y.H.Muchhala, Sr.Advocate with Mr.Sagheer Khan
and Mr.Javed R. Patel and Mr.Vaibhav Nagvekar i/b

Judicare Law Associates for the Petitioners in
Writ Petition (L) No.357 of 2011 and Writ

Petition No.2906 of 2004.

Mr.Javed Shaikh, Special Counsel with
Mr.R.M.Momin for Wakf Board.

Mr.Milind Sathe, Sr.Advocate with Ms.Jyoti Sinha
i/b M/s.Negandhi, Shah & Himaytullah for
Petitioners in Writ Petition No.899 of 2011.

Mr.Ravi Kadam, Advocate General with
Mr.S.R.Nargolkar Addl.G.P., Ms.Geeta Shastri,
Mr.Milind More for Respondent No.1 in Writ
Petition No.2906 of 2004, Respondents Nos. 13 &
14 in WP (L) No.357 of 2011 and Respondents Nos.
1 & 3 in WP No.899 of 2011.

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3 WP2906.04

CORAM: D.K.Deshmukh &
Anoop V. Mohta, JJ

DATED: 21st September, 2011

JUDGMENT: (PER D.K.DESHMUKH, J.)

1. The subject matter of all these

Petitions is the same namely challenge to the

incorporation ig of Respondent No.2/ Maharashtra

State Board of Wakfs and things connected

therewith. Therefore, these petitions can be

conveniently disposed of by a common order.

2. The Petitioners in Writ Petition No.

2906 of 2004 are Muslims belonging to Shia Fatemi

Ismaili Tyebia Sect of Islam. They follow Shia

Fatimid Ismaili Tayebi Schol of Muslim Law.,

which Shia School known as Fatimid Law. In

short, they are Shia Muslim. Petitioners Nos. 1

to 3 are trusttes of “Sir Admji Peerbhoy

Santorium” created by a Scheme settled by this

court by its order dated 16-6-1931 in Suit No.

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4 WP2906.04

1560 of 1927. The said Trust is also registered

as a Public Trust under the Bombay Public Trust

Act. The Petitioners Nos. 4 & 5 are trustees of

“Anjuman-i-Null Bazaaar Chhabdi Bazaar Niaz

Hussein Charitable Trust, which is registered as

a public Trust under the Bombay Public Trust Act.

3. The Petitioners in Writ Petition No.899

of 2011 are also Dawoodi Bhora Muslims and they

are trustees of Rehmatbai widow of Noorbhoy

Jeewanji Morishwalla Charity Trusts registered

under the Bombay Public Trust Act.

4. The Petitioners in Writ Petition (L)

No.357 of 2011 are Muslims belonging to Shia

Fetemi Ismaili Tyebia sect. The Petitioners in

this petition are trustees of Sir Adamji Peerbhoy

Sanatorium, referred to above as also Anjuman-i-

Null Bazzaar Chhabdi Bazaar Niaz Hussein

Charitable Trust, referred to above.

5. In Writ Petition No.2906 of 2004 the

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5 WP2906.04

Petitioners are challenging the Notification

dated 4-1-2002 issued by the Government of

Maharashtra. They are also seeking a directions

to the Government of Maharashtra to conduct a

fresh survey of Wakfs in the State of

Maharashtra. They also challenge the notification

dated 13-11-2003 issued by the Wakfs Board,

whereby the list of Wakfs was published.

.

In Writ Petition No.899 of 2011, the

Petitioners challenge the Circular dated

24-7-2003 issued by the Charity Commissioner of

State of Maharashtra stating therein that in view

of the provisions of Section 43 of the Wakf

Act, the Wakfs which are registered as Public

Trusts would cease to be governed by the

provisions of the Public Trust Act. It is there

case that because the incorporation of the Wakfs

Board by Notification dated 4-1-2002 is itself

invalid and because they are not Wakfs within

the meaning of Wakfs Act, they continue to be

governed by the provisions of the Bombay Public

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6 WP2906.04

Trust Act.

. The Petitioners in Writ Petition (L)

No.357 of 2011 challenge the Notification dated

20th October, 2010 issued by the State of

Maharashtra for resurvey of the Wakfs in the

State of Maharashtra. They also claim a direction

that the list of Wakfs dated 13-11-2003 and

dated 30-12-2004
ig stand rectified as per the

finding of the Five Members Committee. They also

seek a direction to the Charity Commissioner that

the Charity Commissioner should continue to

supervise the working of the Trusts of which they

are trustees.

6. The aforesaid reliefs are claimed by

the Petitioners in these three petitions in

following factual background:

. The Parliament enacted the Wakf Act,

1995 (hereinafter referred to as “the Act”). The

said Act came into force on 1st January, 1996. On

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7 WP2906.04

1st December, 1997 the State Government issued a

Notification in exercise of its powers under sub-

section 1 of Section 4 of the Wakf Act. That

Notification reads as under:

“In exercise of the powers conferred by
sub-section (1) of section 4 of the Wakf
Act, 1995 (43 of 1995), Governmentof
Maharashtra hereby appoints,-

(a) Settlement Commissioner and
Director of Land Records, Maharashtra

State, Pune to be a Survey Commissioner
of Wakfs; and

(b) Additional Commissioners of
Konkan, Nashik, Pune, Nagpur, Amravati
and Aurangabad Revenue Divisions to be a
Additional Survey Commissioner,

for the purpose of making a survey of
Wakfs existing on the 1st day of January,

1996 in the State of Maharashtra.”

The Government of Maharashtra issued a

Notification dated 4th January, 2002. That

Notification reads as under:

“In exercise of powers conferred by
sub-clauses (i) and (iii) of clause (b)
and clause (c) of sub-section (1) read
with sub-section (3) of Section 14 of

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8 WP2906.04

the Wakf Act, 1995 (43 of 1995), the
Government of Maharashtra hereby,-

(a) establishes a Board by the name of
“The Maharashtra State Board of Wakfs”,
having its Headquarters at Aurangabad;

and

(b) nominates,-

1. Shri Khan Yusuf Sarwar, Member of

Parliament (Rajya Sabha);

2. Smt.Shabana Azmi, Member of
Parliament (Rajya Sabha);

3. Shri Harun Aadam Solkar, Muslim Ex-
member of the Bar Council of the

State; and

4. Shri Chand Pasha Inamdar, Member of

Muslim Organisation, to be the
Members of the said Board.

. Thus, by the Notification quoted above,

a Wakf Board for the whole State of Maharashtra

with Headquarters at Auragabad was established

and four persons named in that Notification were

appointed as Members of that Wakf Board.

Pursuant to the Notification dated 1st December,

1997, quoted above, the Officers appointed to

conduct the survey, submitted the survey report

to the State Government on 31-1-2002. As

observed above, by Notification dated 4-1-2002,

four persons were appointed as Members of the

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9 WP2906.04

Wakf Board. Thereafter, appointment of members

of the Wakf Board were made by Notification

dated 20-2-2002, 16-8-2002, 2-6-2002, 24-7-2002

and 13-11-2003. On 24th July, 2003, the Charity

Commissioner of the State of Maharashtra issued a

Circular directing its office not to exercise

their powers under the Bombay Public Trust Act or

deal with any of the Muslims Public Trusts. The

said Circular stated that according to Section 43

of the Wakf Act, Wakf registered as public

trust should not be tried under the Bombay Public

Trust Act and because of that Circular the

authorities under the Bombay Public Trust Act

refused to entertain any application or change

report submitted by the trustees of the Trusts,

which though registered under the Bombay Public

Trust Act, according to the Charity Commissioner

and his sub-ordinate were Muslims Public Trusts.

There were several Writ Petitions filed in this

court challenging incorporation of the Wakf

Board as also challenging its constitution and

appointment of various persons as its members.

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                                       10                   WP2906.04

     There     were     also        Petitions        in      this        court

challenging the Circular issued by the Charity

Commissioner referred to above. On 13-11-2003,

the Wakf Board published a list of Wakfs

treating all Muslims Public Trusts listed in

category in Maharashtra and suburban districts of

Maharashtra by the Charity Commissioner as

Wakfs. Writ Petitions were filed in this court

challenging the list of
ig Wakfs prepared by the

Wakf Board.

7. According to the Petitioners, trustees

of several Muslims Trusts, who felt aggrieved by

the list of Wakf pulished by the Wakf Board

formed an Association called “Association for

protection of Muslims Wakfs and Trusts”. That

Association made a representation to the State

Government requesting it to cancel the

Notification dated 13-11-2003. According to the

Petitioners, on 11th August, 2004, pursuant to the

representation made by the aforesaid Association,

a Committee under the Chairmanship of the Charity

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11 WP2906.04

Commissioner was constituted to verify the list

of Wakf published by the Wakf Board in the

light of the representation made by the

Association. According to the Petitioners, this

Committee bifurcated the list of Wakfs and

submitted the bifurcated list to the State

Government. The State Government forwarded that

list to the Wakf Board. According to the

Petitioners, the ig Wakf Board by its Resolution

No.3 dated 9th March, 2005 unanimously resolved to

accept the report of the Bifurcation Committee

(Five members Committee) which was appointed

under the Chairmanship of the Charity

Commissioner. According to the Petitioners, the

Wakf Board even published a modified list of

Wakf on 5th May, 2005. According to the

Petitioners, however, on 3rd April, 2008 the Wakf

Board passed a Resolution resolving to revoke the

rectified list of Wakf dated 5th May, 2005. It

appears that, there were several complaints made

about the survey conducted. There were

complaints made even with the Joint Parliamentary

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12 WP2906.04

Committee and the Joint Parliamentary Committee

issued a direction on 20th October, 2008 to the

State Government to conduct resurvey of the Wakfs

in the State. In this background, on 20th

October, 2008 a Notification has been issued by

the State Government deciding to resurvey the

Wakfs in the State of Maharashtra and in exercise

of its power under sub-section (1) of Section 4

again appointing a survey officer for conducting

resurvey in the State of Maharashtra.

8. In these facts, these Petitions have

been filed. By these Petitions the Petitioners

challenge the Notification dated 4-1-2002,

whereby the Wakfs Board for the State of

Maharashtra is constituted. The Petitioners also

challenge constitution of the Wakf Board. The

Petitioners also challenge the list of Wakfs

prepared and published by the Wakf Board. It is

the contention of the Petitioners that while

conducting the re-survey the survey officer must

consider the report submitted by the Five Members

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13 WP2906.04

Committee, which was constituted by the State

Government under the Chairmanship of the Charity

Commissioner and the list prepared by it and

submitted to the Wakf Board and also the

rectified list of Wakfs which was prepared by

the Wakf Board. It is the contention of the

Petitioners that until a new Wakf Board is

incorporated and the list of the Wakfs is

published by the newly constituted
ig Wakf Board,

because these Wakfs are also the Public Trusts

registered under the Bombay Public Trust Act, the

working of these trusts should be controlled and

supervised by the authorities of the Public Trust

Act.

     9.          So     far         as        challenge           to         the





     incorporation of the             Wakf Board in                State of

Maharashtra is concerned, the Petitioners relying

on the scheme of the Act, particularly Section 4,

Section 13 and Section 14 of the Act submitted

that until the State Government has before it the

report of the survey, the State Government cannot

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14 WP2906.04

take a decision in relation to the establishment

and constitution of the Wakf Board and any

decision taken by the State Government to

incorporate the Wakf Board in the absence of

survey report submitted by the Survey Officer in

invalid and inoperative.




     10.             So     far        as        the    challenge            to      the




                                       
     constitution of the
                      ig               Wakf Board is concerned, it

     is    the    submission       of       the        Petitioners          that       in
                    
     order that constitution of                         the Wakf Board is

valid, there must be at least seven members in

the Board. Therefore, the constitution of the

Board made on 4-1-2002 is invalid. In support

of its challenge to the validity of the list of

Wakfs published by the Wakf Board, it is

submitted that that list was based on the survey

report submitted to the State Government on

31-1-2002. As that report itself is found to be

defective by by the Joint Parliamentary Committee

as also by the State Government, the list of

Wakfs based on that report obviously is also

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15 WP2906.04

defective and therefore has to be set aside. It

is submitted that considering the importance of

survey and the purpose for which the survey is to

be conducted, the persons who may be interested

in the Wakfs are entitled to make

representations to the survey officer

representing their point of view and the survey

officer appointed under Section 4 is under a duty

to take into consideration such representations

made by the interested persons. It is submitted

that as the Committee under the Chairmanship was

constituted by the State Government and that

Committee prepared the list, that will be the

relevant material to be taken into consideration

by the survey officer while conducting the

resurvey pursuant to the Notification dated 20th

October, 2010. It is submitted that the Muslims

Wakfs which are registered under the Bombay

Public Trust Act are to be governed by the

provisions of the Bombay Public Trust Act till

the machinery is in place constituted under the

Wakf Act to control the administration of the

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16 WP2906.04

Wakfs and till that event takes place, the

Charity Commissioner should be directed to

entertain the applications and supervise the

working of the Muslims Public Trusts, which are

registered under the Bombay Public Trust Act.

11. We have heard the learned Advocate

General on behalf of the State Government. In so

far as the challenge to the Notification dated

4-1-2002 incorporating the Public Trust is

concerned, submission of the learned Advocate

General is that availability of the survey report

cannot be said to be a condition precedent for

the State Government to exercise its power of

incorporating the Wakf Board. The learned

Advocate General relied on the provisions of

Section 13 of the Act. The learned Advocate

General also invited our attention to the

provisions of Section 106 of the Act. The

learned Advocate General submitted that the

information in relation to the Wakfs can be

available to the State Government not only

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17 WP2906.04

through the Survey Report, but also from other

soruces a Wakf Board was in existence in a part

of the State under the Act repealed by Wakf Act,

1995, information with that Wakf Board can also

be used. The learned Advocate General also

submitted that though it is true that initially

only four persons were appointed on the Wakf

Board, but however subsequently appointments were

made by the State Government.

ig It is only in

Category under Section 14(1)(b)(iv) that there is

a problem about electing the representatives,

otherwise, the representatives from all

categories were nominated on the Wakf Board.

12. Now, first taking up for consideration,

the question whether the Notification dated

4-1-2002 incorporating the Wakf Board for the

State of Maharashtra is valid or invalid is

concerned, for consideration of this question

sub-sections 1 to 3 of Section 4 of Wakf Act are

relevant. They read as under:

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18 WP2906.04

4(1) Preliminary survey of Wakfs.- The
State Government may, by notification
in the Official Gazette, appoint for

the State a Survey Commissioner of
Wakfs and as many Additional or
Assistant Survey Commissioners of

Wakfs as may be necessary for the
purpose of making a survey of wakfs
existing in the State at the date of
the commencement of this Act.

(2) All Additional and Assistant
Survey Commissioners of Wakfs shall
perform their functions under this Act
under the general supervision and
control of the Survey Commissioner of

wakfs.

(3) The Survey Commissioner shall,
after making such inquiry as he may
consider necessary, submit his report,

in respect of wakfs existing at the
date of the commencement of this Act
in the State or any part thereof, to
the State Government containing the
following particulars, namely:-

(a) the number of wakfs in the State

showing the Shia wakfs and Sunni wakfs
separately:

(b) the nature and objects of each
wakf;

(c) the gross income of the property
comprised in each wakf;

(d) the amount of land revenue,
cesses, rates and taxes payable in
respect of each wakf;

(e) the expenses incurred in the
relisation of the income and the pay
or other remuneration of the mutawalli
of each wakf; and

(f) such other particulars relating to
each wakf as may be prescribed.

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                                     19               WP2906.04



     .         Thus,      Section    4   vests    powers         in     the




                                                                   

State Government to appoint the survey officer

for the purpose of making “a survey of Wakfs

existing in the State at the date of commencement

of the Act. The date of commencement of the Act

is 1-1-1996. In making the survey, the survey

officers have to collect the information on the

number of Wakfs in the State and also to find out

how many of them are Shia Wakfs and how many of

them are Sunni Wakfs. The survey officers have

to collect the information about the income,

expenditure, properties of such Wakfs. Under

Section 13 of the Wakf Act, the State Government

is empowered to establish a Board of Wakfs. The

State Government has also been given power to

constitute a separate Wakf Board for Shia and

Sunni Wakfs, under certain conditions specified

in the Act. The same Section provides that the

Wakf Board would be a body corporate having

perpetual succession and a common seal. Section

13 reads as under:

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20 WP2906.04

13. Incorporation.- (1) With effect

from such date as the State Government
may, by notification in the Oficial
Gazette, appoint in this behalf, there

shall be established a Board of Wakfs
under such name as may be specified in
the notification.

(2) Notwithstanding anything
contained in sub-section (1), if the
Shia wakfs in any State constitute in
number more than fifteen per cent of
all the wakfs in the State or if the

income of the properties of the Shia
Wakfs in the State Constitutes more

than fifteen percent of the total
income of properties of all the Wakfs
in the State, the State Government

may, by notification in the Official
Gazette, establish a Board of Wakfs
each for Sunni wakfs and for Shia
wakfs under such names as may be
specified in the notification.

(3) The Board shall be a body

corporate having perpetual succession
and a common seal with power to
acquire and hold property and to
transfer any such property subject to

such conditions and restrictions as
may be prescribed and shall by the
said name sue and be sued.

13. Perusal of the above quoted provisions

of Section 13 shows that sub-section 1 of Section

13 vests powers in the State Government to

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21 WP2906.04

establish a Board of Wakf. Sub-section 2 lays

down the manner in which that power is to be

exercised. At the time of taking a decision to

constitute the Board of Wakf, the State

Government has to consider as to whether it

wants to constitute one Board of Wakf or in view

of the provisions of sub-section (2) of Section

13, it is necessary for it to constitute a

separate Board of Shia Wakfs.

ig It was submitted

by the learned Advocate General that the power

conferred on the State Government by sub-section

2 of Section 13 is a discretionary power. The

State Government may constitute a Shia Board or

may not constitute a Shia Board. In our opinion,

the submission is not well founded. Because once

it is established that Shia Wakfs in the State

constitutes in number more than fifteen percent

of the Wakfs in the State or if it is established

that the income of the properties of Shia Wakfs

in the State constitutes more than fifteen

percent of the total income of the properties of

all the Wakfs in the State, the State Government

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22 WP2906.04

cannot deny constitution of a separate Wakf Board

for Shia Wakfs. In that situation, the State

Government will have to constitute two Boards. In

our opinion, the provisions of sub-section 2 of

Section 13 have to be read with the provisions of

sub-section 3 of section 4 of the Act. Sub-

section 3 of Section 4 of the Act casts a duty on

the Survey Commissioner to collect information as

to the number of Shia
ig Wakfs and Sunni Wakfs

separately. He is also required to collect

information on the income, expenditure and

properties of Shia Wakfs and Sunni Wakf

separately. A duty on the Survey Commissioner is

cast by sub-section (3) of Section 4 to collect

information in that regard obviously to enable

the State Government to take a decision, which is

contemplated by sub-section (2) of Section 13 of

the Act. In our opinion, the provisions of

Section 13 and Section 4 will have to be read

together and the State Government will have to

wait for making a decision in relation to

incorporation of Wakf Board in the State till it

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23 WP2906.04

receives the report of survey conducted under

Section 4. Section 13 does not contemplate

constitution of additional Board for the Shia.

Section 13 contemplates constitution of one Board

for Shia and Sunni Wakfs or constitution of

separate Board for Shia and Sunni Wakfs

depending on the number and income of Shia Wakfs

in the State. In our opinion, therefore, the

power to establish the
ig Wakf Board will have to

be exercised at the same time and it is at that

time that the State Government will have to

decide whether it wants to have one Board for the

Shia and Sunni wakfs or taking into consideration

the number and income of the Wakfs a separate

Board for Sunni Wakfs and Shia Wakfs. The

survey that is to be done under Section 4 is

survey of the wakfs as on the date of

commencement of the Act. There is no period fixed

by the Act for the state Government to order

survey. Whenever the State Government decides to

conduct survey, the survey in terms of Section

4(1) has to be survey of Wakfs on the date of

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24 WP2906.04

commencement of the Act. The Act also does not

fix any time limit for the State Government to

exercise its power of establishing the Wakf

Board. There is no direct provision in the Act

which lays down that before establishment of the

Wakf Board under Section 13 the State Government

must make any order for survey. If the argument

of the State Government/Respondent in this case

is accepted, it will have to be held that the

State Government can establish the Wakf Board

under Section 13 without ordering the survey. But

for preparing the list of Wakfs under Section

5(2) survey is necessary. Therefore, can the

State Government without ordering survey in

exercise of its power under Section 13(1)

establish a common Wakf Board and thereafter

order survey. If the report of survey received

after establishing the Wakf Board shows that the

number of Shia wakfs in the State is such that

according to Section 13(2), the Shia wakfs are

entitled to have a separate Shia Wakf Board, in

that situation the State Government will not be

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25 WP2906.04

in a position to constitute a separate Board for

Shia Wakfs, because the Act does not contemplate

the Government establishing any additional Board

or Boards. It also does not provide for

bifurcation of one Board into two Boards. Had it

been the intention of the Legislature to empower

the State Government to constitute additional

Board, it would have made the provision for

division or bifurcation of the existing Board,

because without bifurcating or dividing the

existing Board, it will be impossible to

constitute additional Board. If the State

Government has already constituted the unified

Board for both Shia and Sunni Wakfs, then if the

additional Board for Shia wakfs is to be

constituted, it would be necessary to delete from

the unified Board, the Shia wakf. There is no

provision made in the Act for such bifurcation.

In such situation, therefore, in our opinion, the

State Government has to order survey first and

then wait for the survey report and after

receiving the survey report the State Government

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26 WP2906.04

has to take proper decision about establishment

of Wakf Board. After incorporating or

establishing a Board the State Government has to

take steps for constitution of the Wakf Board

immediately, because without making appointment

or nominating members on the Wakf Board mere

establishment of the Wakf Board surves no

purpose. When the State Government considers the

question of constitution of the Wakf Board, it

has to take into consideration the provisions of

Section 14(6) of the Act. Section 14(6) reads as

under:-

14(6) In determining the number of Shia

members or Sunni members of the Board,
the State Government shall have regard to
the number and value of Shia Wakfs and
Sunni Wakfs to be administered by the

Board and appointment of the members
shall be made, so far as may be, in
accordance with such determination.

. Thus, the number and value of Shia and

Sunni Wakfs become relevant for constitution of

the Wakf Board. Authentic information can become

available to the State Government regarding the

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27 WP2906.04

number and value of the Wakfs only from the

report of the Survey Commissioner appointed under

Section 4 of the Act.

. In this view of the matter, therefore,

in the present case as it is an admitted position

that the State Government issued the Notification

incorporating the Wakf Board in the State of

Maharashtra on 4-1-2002, when it did not have

before it the report of the survey conducted

under Section 4. That report became available to

the State Government only on 31-1-2002. By

incorporating Wakf Board in the State of

Maharashtra on 4-1-2002, the State Government

denied to itself an opportunity to consider the

survey report to find out whether the information

disclosed by that report requires it to exercise

its power under sub-section 2 of Section 13 of

constituting a separate Board for Shia Wakfs.

In our opinion, the State Government was not

justified in denying to itself the exercise of

power under sub-section 2 of Section 13 by not

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28 WP2906.04

waiting to receive the survey report. The State

Government itself had appointed the Survey

Officer in the year 1997 and it waited till 4th

January, 2002 to incorporate the Wakf Board when

it was to receive the survey report on 31st

January. The only reason that is given for

incorporating the Wakf Board on 4-1-2002 is the

provisions of sub-section 1 of Section 5. It

reads as under:-

5(1) On receipt of a report under sub-
section (3) of Section 4, the State
Government shall forward a copy of the
same to the Board.

14. It was submitted by the learned

Advocate General relying on the provisions of

sub-section 1 of section 5 of the Act that sub-

section (1) of Section 5 casts obligation on the

State Government to forward a copy of the survey

report to the Board. According to the learned

Advocate General, therefore, it is obligatory for

the State Government to constitute a Board

before it receives the survey report from the

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29 WP2906.04

survey officer, so that as soon as the report is

received, , copy of that report can be forwarded

to the Board.

. In our opinion, this submission is not

well founded. The words “on receipt of the

report” , in our opinion, do not imply that a

copy of the report is to be forwarded by the

State Government
ig immediately on receiving the

report. The State Government on receiving the

report can consider the question of incorporating

the Board under Section 13 and on constituting

the Board can forward a copy of that report to

that Board.

. In our opinion, therefore, the

Notification dated 4-1-2002 incorporating the

Wakf Board is contrary to the scheme of the Act

and is, therefore, liable to be set aside.




     15.        So      far     as    the    challenge           to       the

     constitution of          Wakf Board is concerned, it is




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                               30              WP2906.04

Section 14 of the Act which is relevant. It reads

as under:-

14. Composition of Board.-

(1) The Board for a State and the Union
Territory of Delhi shall consist of-

(a) a Chairperson;

(b) one and not more than two members, as
the State Government may think fit, to be

elected from each of the electoral colleges
consisting of-

(i) Muslim Members of Parliament from the

State or, as the case may be, the Union
Territory of Delhi;

(ii) Muslim Members of the State
Legislature;

(iii) Muslim Members of the Bar Council of
the State, and

(iv) mutawallis of the Wakfs having an
annual income of rupees one lakh and above;

(c) one and not more than two members to be
nominated by the State Government
representing eminent Muslim Organisations;

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31 WP2906.04

(d) one and not more than two members to be
nominated by the State Government, each from

recognised scholars in Islamic Theology;

(e) an officer of the State Government not,
below the rank of Deputy Secretary.

(2) Election of the members specified in
Clause (b) of sub-section (1) shall be held
in accordance with the system of
proportional representation by means of a
single transferable vote, in such manner as

may be prescribed:

Provided that where the number of Muslim
Members of Parliament, the State Legislature

or the State Bar Council, as the case may
be, is only one, such Muslim Member shall be
declared to have been elected on the Board:

Provided further that where there are no
Muslim Members in any of the categories

mentioned in sub-clauses (i) to (iii) of
Clause (b) of sub-section (1) the ex-Muslim
Members of Parliament, the State Legislature
or ex-member of the State Bar Council, as

the case may be, shall constitute the
electoral college.

(3) Notwithstanding anything contained in
this section, where the State Government is

satisfied for reasons to be recorded in
writing, that it is not reasonably
practicable to constitute an electoral
college for any of the categories mentioned
in sub-clauses (i) to (iii) of Clause (b) of
sub-section (1), the State Government may
nominate such persons as the members of the

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32 WP2906.04

Board as it deems fit.

(4) The number of elected members of the
Board shall, at all times be more than the
nominated members of the Board except as

provided under sub-section (3).

(5) Where there are Shia Wakfs but no
separate Shia Wakfs Board exists, at least

one of the members from the categories
listed in sub-section (1), shall be a Shia
Muslim.

(6) In determining the number of Shia
members or Sunni members of the Board, the

State Government shall have regard to the
number and value of Shia Wakfs and Sunni
Wakfs to be administered by the Board and

appointment of the members shall be made, so
far as may be, in accordance with such
determination.

(7) In the case of the Union Territory other
than Delhi, the Board shall consist of not

less than three and not more than five
members to be appointed by the Central
Government from amongst the categories of
persons specified in sub-section (1):

Provided that there shall be one mutawalli
as the member of the Board.

(8) Whenever the Board is constituted or
reconstituted, the members of the Board
present at a meeting convened for the
purpose shall elect one from amongst
themselves as the Chairperson of the Board.

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                                      33                    WP2906.04

           (9) The members of the Board shall                                   be
           appointed   by  the   State   Government                             by

notification in the Official Gazette.

     16.              It   is       common        ground           that         by

     Notification      dated    4-1-2002         only      four       Members

were appointed on the Board. Perusal of the above

quoted provisions show that Section 14(1)(b)

defines only the electoral colleges. It does not

lay down eligibility for being a candidate to be

elected from the electoral colleges defined by

Section 14(1)(b). For example, it lays down that

one and not more than two members as may be

decided by the State Government may be elected

from the electoral colleges consisting of Muslims

Members of Parliament from the State. It does

not lay down as to who can be a candidate at such

election. In any case, it does not lay down that

only the Muslims Members of Parliament from the

State can be a candidate to be elected from this

electoral colleges. Same is the case with the

electoral college constituted under Section 14(1)

(b)(ii) , (iii) & (iv). Perusal of the

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34 WP2906.04

Notification dated 4-1-2002, however, shows that

the State Government was under the impression

that it is only the Muslims members of the

Parliament from the State, who can be nominated

or elected from his constituency. Same is the

case with Section 14(1)(b)(iii) nomination. So

far as constitution of the Maharashtra Board is

concerned, we have been pointed out the Eighth

Report of the Joint Parliamentary Committee on

the functioning of the Wakf Board. In paragraph

2.33 of that report it is observed “The Principal

Secretary informed that the Government of

Maharashtra had constituted Maharashtra State

Board of Wakfs. The Board constituted of 4

Members i.e. 2 Members of Parliament, 1. Ex-

Member of the bar Council of the State and one

Member from Muslim Organisation vide Government

Notification No.Wakf-10/2001/C.R.154/L-3 dated 4th

January, 2002. The process of appointing the

remaining members of the Board was underway. The

Sub-Committee asked him to check up from their

Law Department as to whether the Wakf Board

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35 WP2906.04

constituted by Maharashtra Government can be

treated as the wakf Board constituted under

Section 14(1) of the Wakf Act, 1995, which

requires minimum seven members for a Wakf Board

to be duly constituted and share their opinion

with the Sub-Committee”.

17. So far as Ninth Report of the Joint

Parliamentary Committee on wakfs is concerned, it

is paragraph 3.32 and 3.33 of that report are

relevant. They read as under:

3.32 After the enactment of the Wakf
Act, 1954, Maharashtra did not adopt
the Act for the entire State of

Maharashtra. Only Marathwada Region of
Maharastra had Wakf Board and in the

other region of Maharashtra, the Wakf
properties were governed by the Bombay
Public Trust Act. After the enactment
of the Wakf Act, 1995, the State of

Maharashtra adopted the Act and
implemented the Act for the entire
State and constituted the Wakf Board.
The present position of the Board is
that six of its members have retired

and two have resigned in 2005.
Currently, there are only two members
in the Board. The Government with just
two member on the Board cannot function
and as such the Board practically does
not exist.

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36 WP2906.04

3.33 The Principal Secretary, Minority
Development, Government of Maharashtra,
further submitted the position of the

Maharashtra Wakf Board before the
Committee on the 24th July, 2008, and
stated that the two members who had

resigned in 2005 and 2007 would
continue to be members as per the
provisions of the Act, till their
successors were appointed. The

Committee was assured that the State
Government would be able to constitute
the Board within three months. As
regards the elected members, it would
take a little more time. The Committee

is unable to appreciate the explanation
of the Principal Secretary. For all

practical purposes there is no Board in
Maharashtra. The Government has neither
appointed Administrator to discharge

the functions of the Board nor it has
superseded the Board as per Section 99
of the Wakf Act.(emphasis supplied)

It is thus clear that presently there are only

two Members of the Board. This position was not

disputed before us. Perusal of Section 14 makes

it clear that a wakf Board having only two

members cannot be said to be properly constituted

and therefore, we have to hold that the

constitution of Wakf Board of Maharashtra is not

in accordance with law.

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37 WP2906.04

18. The next question to be considered is

whether the list of wakfs prepared and published

by the Wakf Board is valid or invalid. The list

is prepared and published under sub-section 2 of

Section 5 of the Act. It reads as under:

(2) The Board shall examine the report
forwarded to it under sub-section (1)
and publish in the Official Gazette a

list of Sunni Wakfs or Shia Wakfs in
the State, whether in existence at the

commencement of this Act or coming into
existence thereafter, to which the
report relates, and containing such

other particulars as may be prescribed.

Thus, the list to be prepared by the Board is

based on the report of the survey which is

conducted under Section 4 of the Act. So far as

the survey conducted under the Act is concerned,

the Joint Parliamentary Committee found that the

survey was not conducted properly. Following

paragraphs 4.16, 4.17, 4.18 and 4.19 in the Ninth

Report of the Joint Parliamentary Committee in

our opinion are relevant. They read as under:

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38 WP2906.04

4.16 The earlier JPC on Wakf, in its
Eighth Report, presented on 29.07.2003
noted that the survey was almost

completed, except in Bombay suburban
District. However, it was alleged by
the members of the public during the

visit of the Committee that the survey
work had not been properly carried out
and a large number of Wakf properties
had been left out. It was also informed

that even those properties which
physically existed and were Wakf by
user, were not included in the survey
on flimsy grounds. It was revealed that
in the revenue records, the Wakf

properties were mentioned in the name
of Mutawallis or in the name of lessees

and were not shown as Wakf properties
which made the sale of the properties
easy. It was also informed that no

physical survey was done and only
proformas were sent to the Mutawallis
for furnishing the details of the Wakf
properties. The State Government had
also admitted that there were errors in

identifying the Wakf properties. Later
on, the State Government informed that

the survey in Bombay sub-urban areas
had also been completed and they
supplied a list of the Wakf properties
surveyed to the then Committee. The

lists so received prima facie showed
the properties of Marathwada region;

the Wakf properties in other regions
were negligible which might not be
true. Keeping the situation in view,

the then Committee recommended that the
provisions of the Wakf Act, 1995 should
be followed scrupulously for the survey
of Wakf properties and the procedure
adopted be made transparent and open to
the public, with a remedy to correct
errors in the survey. The Survey

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39 WP2906.04

Commissioner should undertake a
physical survey of all the Wakf
properties after giving wide publicity

through the media. The Committee
further recommended that after the
survey was completed, the lists of Wakf

properties should be published properly
in the Official Gazette as required
under the Act. The Committee further
recommended that the entries of Wakfs

should be properly made in the revenue
records.

4.17 The Committee, now in view of the
flaws in the survey undertaken earlier

and the earlier Committee’s
recommendation to correct errors in the

survey, sought to know the present
status of survey during its visit
undertaken in June, 2007. The Chief

Executive Officer informed the
Committee that the Government had
initiated survey vide the Government
Notification dated 01.12.1997 through
the Settlement Commissioner. Despite

complaints that the survey had not been
done properly and also the last Joint

Parliamentary Committee had asked the
Government to undertake re-survey, it
was yet to be undertaken.

4.18 Further explaining the position,
the State Wakf Board, in its note
giving the latest position of the
survey submitted to the Committee in
July, 2008, as under:

“The survey of Wakfs and its
properties was taken up by the
Government of Maharashtra vide
Revenue and Forest Department
Notification No. WKF-1097/L- 3/CR95
dated 01.12.1997 and survey was

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40 WP2906.04

completed and submitted to the
Government. Thus, the survey was
completed before receipt of proceedings

of the Joint Parliamentary
Committee’s VIIIth Report, which had
suggested the survey to be carried

out again in a transparent way. It has
yet not been initiated.

. . . The decision to conduct

fresh survey in a transparent manner
lies with the State Government.”

4.19 The Committee is surprised to see
that it got the same reply even after

one year. On being asked, the Principal
Secretary,
ig Minority Development,
Government of Maharashtra, during her
oral evidence tendered on 24.07.2008,
assured the Committee that the Survey

Commissioner would be appointed within
a month to take up the survey work.
(emphasis supplied)

19. Thus, the Joint Parliamentary Committee

found the survey to be defective. The decision

of the Joint Parliamentary Committee has been

accepted by the State Government when it issued

the Notification dated 20th October, 2010. The

reason that has been given by the State

Government for ordering resurvey in the

Notification dated 20th October, 2010 is ” And

whereas the Joint Parliamentary Committee

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41 WP2906.04

received complaints that the survey was not

conducted properly and therefore the Committee

issued direction dated 20th October, 2008 to the

State Government to conduct the resurvey of the

wakfs in the State…………..” .

20. Thus, even according to the State

Government the Survey was defective as the lists

of wakfs prepared under sub-section 2 of Section

5 were based on the survey report submitted on

31-1-2002 to the State Government, which the

State Government itself found to be defective,

the only conclusion possible is that the lists of

wakfs are defective and therefore, in our

opinion, it would be appropriate to set aside

those lists, so that fresh lists can be prepared

by the wakf Board on the basis of the report of

resurvey which is ordered by Notification dated

20th October, 2010.

21. Now, taking up for consideration the

submission of the Petitioners that the survey

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42 WP2906.04

officers who are conducting the survey pursuant

to the Notification dated 20th October, 2010

should be directed to consider the

representations that may be made by the

Petitioners as also other persons who may be

connected with the Muslims wakfs and also to

consider the lists prepared by the Committee

constituted by the State Government under the

Chairmanship of
ig the Charity Commissioner is

concerned, it is clear from the provisions of

Section 4 of the Act that for proper working of

the scheme of the Wakf Act, conducting of proper

and thorough survey is absolutely necessary.

The Joint Parliamentary Committee in its report

has also noted that the survey plays a very

important role in implementation of the

provisions of the Act and therefore, the survey

should be conducted carefully and in a

transparent manner. In our opinion, therefore,

the survey officers who are conducting the survey

under Section 4 are under a duty to take into

consideration all relevant material including any

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43 WP2906.04

material that may be placed before them by the

Petitioners, who are trustees of various Muslim

charities as also other similarly situated

persons who are connected with the Muslim

charities. So far as the report of the Committee

referred to above is concerned, that Committee

was constituted by the State Government and that

Committee had prepared a list. In our opinion,

as the material collected by the Committee would

be relevant for the purpose of preparing the

survey report by the Survey Officer, in case a

copy of the report of the Committee is placed

before the Survey Officer by the Petitioners,

the survey officers cannot refuse to take that

material into consideration In our opinion, a

direction in that regard has to be issued to the

Survey Officer.

22. It was also urged before us relying on

the provisions of sub-section 6 of Section 4 that

the survey ordered by the Notification dated 20th

October, 2010 in invalid. In our opinion,

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44 WP2906.04

however, that submission is not well founded.

Sub-section 6 of Section 4 operates in relation

to second or subsequent survey. It contemplates

the first survey to be valid. In the present

case, however, it has been found that the first

survey itself was not valid and it was defective.

In our opinion, therefore, exception cannot be

taken to the resurvey ordered by the Notification

dated 20th October,
ig 2010 on the basis of the

provisions of Sub-section 6 of Section 4 of the

Act.

23. Now, the last question that requires to

be considered is whether having found that the

Notification incorporating the Wakf Board to be

invalid, we can direct the Charity Commissioner

and the authorities under the Bombay Public Trust

Act to exercise their powers in relation to such

Muslims Trust as may be registered as Public

Trust under the Bombay Public Trust Act. In that

regard, reliance was placed on the provisions of

Section 43 of the Wakf Act. It reads as under:

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                                      45                  WP2906.04



             43.      Wakfs         registered           before           the




                                                                     
             commencement      of    this    Act     deemed         to      be




                                             
             registered.-




                                            

Notwithstanding anything contained in this
Chapter, where any Wakf has been registered
before the commencement of this Act, under
any law for the time being in force, it
shall not be necessary to register the Wakf

under the provisions of this Act and any
such registration
ig made before such
commencement shall be deemed to be a
registration made under this Act.

24. Perusal of the provisions of Section 43

shows that if a particular Trust or wakf is

registered under any law for time being in force,

then that registration is deemed to be

registration made under the provisions of the

Act. This section deals only with the necessity

of registration of wakfs under the Act. It does

not lay down that after coming into force of the

Wakf Act, Muslim Trusts which are registered

under the Bombay Public Trust Act and under any

other State Law will cease to be governed by that

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46 WP2906.04

Act, merely because the Wakf Act has come into

force. It is possible to say that after a Wakf

Board is incorporated under the Wakf Act and it

becomes effective and starts controlling the

affairs of the Muslim Trusts, which are

registered under the Wakf Act, then the

provisions of the Bombay Public Trust Act may

cease to operate in relation to such public

trusts/wakfs. But till that eventuality occurs ,

in our opinion, it would be in the public

interest that the affairs of such public trusts

are governed by the provisions of the Bombay

Public Trust Act. If it is held that merely on

commencement of the Act in a State, without the

machinery provided by the Wakf Act becoming

operative, the provisions of the Bombay Public

Trust Act cease to operate in relation to the

Muslims Public Trusts, which are registered under

the Bombay Public Trust Act, it will result in

creating a vacum, inasmuch as, in the absence of

any machinery being effective under the Wakf Act,

the affairs of the Trust will not be controlled

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47 WP2906.04

by the provisions of the Wakf Act and the

provisions of the Public Trust Act will also not

apply. Therefore, in our opinion, it would be

appropriate to direct that till the Wakf Board is

established, incorporated and constituted under

the provisions of the Wakf Act and it becomes

operative, the provisions of the Bombay Public

Trust Act shall apply to the Muslims Public

Trusts which
ig are registered under the Bombay

Public Trust Act.

25. In the result, therefore, the petitions

succeed and are allowed.

(i)The Notification dated 4-1-2002 is set

aside;

(ii) The lists of wakfs prepared and published

by the Wakf Board dated 13-11-2003 are set

aside.




          (iii)       The    Survey         Officers         appointed            by




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                                   48                      WP2906.04

       Notification         dated      20th    October,          2010       are

       directed        to        take         into        consideration




                                                                       
       representations,           if      any,         made        by       the




                                               
       Petitioners      and       other        similarly           situated

persons connected with the Muslims wakfs,

including the list prepared by the Committee

constituted by the State Government under

the Chairmanship of the Charity

Commissioner, while preparing and submitting

their survey reports to the State

Government. The survey officer may also take

into consideration any list of the wakfs, if

prepared under the Act repealed by the 1995

Act.

(iv) Until a new Board or Boards are

incorporated under the Act and they are

constituted in accordance with the

provisions of the Act and the Board or

Boards start functioning in accordance with

the provisions of the Wakf Act, the

provisions of the Bombay Public Trust Act

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49 WP2906.04

will apply to the such Muslims Public

Trusts, which are registered under the

Bombay Public Trust Act. Rule is made

absolute accordingly. No order as to costs.

26. We have set aside the Notification

dated 4-1-2002. None of the actions taken or

orders passed by the Wakf Board constituted by

the Notification dated 4-1-2002 is challenged in

any of the petitions that have been decided by

this order. Therefore, we are not pronouncing on

the validity or otherwise of the actions taken

and orders passed by the Wakf Board so far. The

validity of those actions and orders will be

decided by the Forum before which the validity of

those actions or orders is challenged.

. It is also made clear that the State of

Maharashtra is at liberty to take steps to make

such interim arrangements, as it may be advised,

to manage and to supervise the Wakf property and

other related aspects under the Wakf Act. The

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50 WP2906.04

decision and/or action already taken including

the pending dispute or litigation shall be

governed by the Wakf Act.

27. So far as Writ Petition (L) No.357 of

2011 is concerned, it is clarified that by this

judgment we have not considered the relief

claimed by prayer clause c(iii) in respect of

wakfs list dated
ig 30-12-2004. Therefore, the

Petitioners shall be at liberty either to file

fresh petition claiming that relief or claim that

relief in other pending matters.

28. At the request of the learned Counsel

appearing for the Wakf Board, it is directed that

operation of this judgment shall remain stayed

for a period of 10 weeks from today. However,

during this period all the interim orders that

are operating as on today shall continue to

operate.

(Anoop V. Mohta, J.) (D.K.Deshmukh J.)

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Narendra Manoharrao Ambadkar vs State Of Maharashtra on 29 September, 2011

Bombay High Court
Narendra Manoharrao Ambadkar vs State Of Maharashtra on 29 September, 2011
Bench: B. P. Dharmadhikari, A.P. Bhangale
                                      1

                IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                     NAGPUR BENCH : NAGPUR




                                                                         
                                                 
    Writ  Petition No. 1393 of 1999

    Petitioners :    1) Narendra Manoharrao Ambadkar, aged about




                                                
                     37 years, occ: service, resident of c/o Govt 

                     Polytechnic College, Nagpur




                                      
                     2) Anil Wamanrao Wankhede, aged about 37
                        
                     years, occ: service, resident of c/o Govt.
                       
                     Polytechnic College, Nagpur

                     3) Ravindra Dyaneshwarrao Warhokar, aged
      


                     about 43 years, resident of c/o Government
   



                     Polytechnic College,  Yavatmal

                     4) Abdul Mujeeb  Khan, aged about 42 years,





                     occ: service, resident of c/o Government 

                     Polytechnic College, Amravati





                     5) Sunil Gangadhar Deshpande, aged about

                     42 years, occ: service, resident of Nagpur

                     versus

    Respondents :    1) State of Maharashtra, through its 

                     Secretary, Technical & Higher Education, 



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                                              2

                        Mantralaya, Mumbai

                        2) Director, Technical Education, MS, Mumbai




                                                                                 
                        3) All India Council for Technical Education,




                                                         
                        New Delhi

                        4) Maharashtra Public Service Commission,




                                                        
                        Mahatma Gandhi Marg, Mumbai

                        5) Maharashtra Administrative Tribunal,




                                            
                        Nagpur Bench, nagpur
                            
                           
    Mr H.D. Dangre, Advocate for petitioners

    Mr A. Parihar, AGP for respondents no. 1,2,4 and 5
      


    Ms Usha Tanna, Advocate for respondent no. 3
   



                        Coram : B. P. Dharmadhikari & A. P. Bhangale, J





                        Dated  : 28/29th September  2011





    Oral Judgment (Per B. P. Dharmadhikari, J)

    1.           Five petitioners before us have challenged the judgment 

    delivered   by   Maharashtra   Administrative   Tribunal   in   Original 

    Application No. 719 of 1997 on 15.1.1999 rejecting their prayer for 

    direction   to   respondents   to   extend   to   them   the   pay0scale   of   Rs. 



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                                              3

    3700-5700 by treating them as Head of the Department.  It is not in 

    dispute   that   all   five   petitioners   have   been   duly   selected   and 




                                                                                  
    appointed as Workshop Superintendent in Government Polytechnic 




                                                          
    College under respondents no. 1 and 2 prior to 20th September 1989.

    2.            Mr Dangre while advancing the cause of petitioner has 




                                                         
    contended   that     only   defence   before   the   Tribunal   raised   by 

    respondents no. 1 and 2 was that post of Workshop Superintendent 




                                             
    is   not   a   teaching   post.     He   points   out   that   norms   issued   by 
                             
    respondent   no.   3   All     India   Council   for   Technical   Education 
                            
    constituted under the All India Council for Technical Education  Act, 

    1987     (hereinafter   referred   to   as   the   "1987   Act")   were     not   in 
      


    dispute and its binding effect was  shown by respondent no. 3 even 
   



    before   the Tribunal. He has invited attention to those norms as in 

    the year 1990 to urge that by its perusal, there is no scope for doubt 





    that post of Workshop Superintendent has been treated as equivalent 

    to the post of Head of the Department   or then  of Senior Lecturer 





    (Selection grade) and pay-scale for them is Rs. 3700-5700.  He has 

    also pointed out  the relevant clauses to substantiate his contention 

    and to show that Workshop Superintendent has been placed in the 

    cadre of Head of the Department.  Job description of a Lecturer and 

    of   Workshop   Superintendent   is   also   read   out   for   this   purpose. 



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                                               4

    Contention is that this material on record has not been looked into 

    by respondent no. 5 Tribunal.




                                                                                   
    3.            Without   prejudice   to   this   contention   and   in   the 




                                                           
    alternative,   learned   counsel   has,   presuming   that   Workshop 

    Superintendent   cannot   be   treated   as   a   teaching   post,   invited 




                                                          
    attention to the communication dated 20th  September 1989 issued 

    by   AICTE   to   urge   that     there   recommendation   on   the   point   of 




                                             
    revision of pay-scale appears and for Head of the Department the 
                             
    pay-scale   of   Rs.   3700-5700   has   been   proposed.     Learned   counsel 
                            
    states   tat   recommendations  with    AICTE     are   applicable     even   to 

    petitioners.  The decision of State Government dated 26th May 1992 
      


    issued in the light of this communication is also relied upon and it is 
   



    pointed out that those revised scales have come into force from 1st 

    January   1986.     Attention   is   invited   to   later   resolution   dated   22nd 





    November 1993 which modifies this resolution and exempts them 

    from acquiring   revised educational qualification.   The judgment of 





    Honourable   Apex   Court     in  State   of   Bihar   and   ors   v.   Bihar   State 

    Workshop Supdt Federation and ors reported at 1993 Supp (2) SCC 

    368 is pressed into service to show that there the post of Workshop 

    Superintendent is already held to be a teaching post by Honourable 

    Apex   Court.     Thus,   in   the   light   of   this   judgment   and   above-



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                                                 5

    mentioned   decision/resolution,   contention   is   that   petitioners   are 

    entitled to pay-scale of Rs. 3700-5700.




                                                                                      
    4.             In the light of this material, order of the Tribunal dated 




                                                              
    5.1.1999 is also read out and it is contended that the Judgment of 

    Honourable  Apex Court has not been appreciated at all.  It is further 




                                                             
    contended   that   the   fact   that   petitioners   were   duly   qualified   and, 

    therefore,   were   selected   and   have   been   appointed   as   Workshop 




                                                
    Superintendent prior to 20th September 1989 or its impact in present 
                              
    matter is totally lost sight of by the Tribunal.   It is contended that 
                             
    letters   of AICTE mentioned by the Tribunal in paragraph 5 of its 

    order were, therefore, not relevant at all.  Reliance is also placed on 
      


    judgment   of   Honourable   Apex   Court   in  State   of   T.N.   &   anr   v. 
   



    Adhiyaman Educational and ors  reported at  (1995) 4 SCC 104   to 

    show   that     AICTE   is   the   only   authorised   and   competent   body   to 





    decide  not only qualification  but also  pay  structure  and the  State 

    Government cannot avoid its responsibility to implement the norms 





    prescribed   by   it.     Learned   counsel   has   drawn   our   attention   to 

    preamble of 1987 Act and  mandatory provision Section 10 thereof 

    with contention that  the subjects mentioned in clause IV of Section 

    10   are   only   illustrative.     It   is   contended   that   it   is   the   exclusive 

    privilege of AICTE to take all steps for ensuring   coordination and 



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                                              6

    integrated development of technical education and norms fixed by it, 

    therefore, deserve primacy.  The provisions in Section 22 conferring 




                                                                                  
    rule-making   power,     Section   23   authorises   AICTE   to   frame 




                                                          
    Regulations   and     requirement   in   Section   24   to   lay   rules   and 

    regulations   before the Parliament, are also pressed into service for 




                                                         
    said purpose.

    5.            Ms   Usha   Tanna,   learned   counsel   respondent   no.   3   has 




                                             
    urged that Workshop Superintendent is not Head of the Department, 
                             
    but he is in-charge of Workshop.  The norms prescribed by AICTE are 
                            
    not binding upon the State Government and attention is invited to 

    the   fact   that   for   post   of   Head   of   the   Department   more   superior 
      


    qualifications are prescribed.  He points out that only petitioner no. 
   



    1   was   possessing  those   qualifications  at   the   relevant  time.  In  this 

    backdrop,   attention   is   invited   to   Norms   and   Standards   for 





    Polytechnics,   particularly clause 6.2.4 which     shows that post of 

    Workshop   Superintendent   is   placed   in   the   cadre   of   Head   of   the 





    Department with stand that it is not equivalence.

    6.            Mr   Parihar,   learned   Assistant   Government   Pleader 

    appearing   for   other   respondents   has   supported   the   order   of   the 

    Maharashtra   Administrative   Tribunal.     He   contends   that   post   of 

    Workshop   Superintendent   is   falling   in   Maharashtra     Educational 



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                                                 7

    Service, Class-I (junior cadre)  while post of Head of the Department 

    is in superior cadre.  He points out that when  MPSC advertised the 




                                                                                      
    post, this position was apparent and it  also stipulated that Workshop 




                                                              
    Superintendent had the prospects of promotion to the post of Head 

    of the Department.  Pay-scale of Rs. 2200-2700  was also indicated 




                                                             
    in  the  advertisement.    He  has invited  attention  to the  norms and 

    standard   as issued by respond AICTE in August 1990 to urge that 




                                                
    those norms are only guidelines.  Table-10 dealing with staff salaries 
                              
    is   stated   to   be   based   on   hypothetical   pay-scales   only     for   the 
                             
    purposes   of   cost   estimation.     It   is   pointed   out   that   in   so   far   as 

    teaching cadre is concerned, post of Lecturer is an entry post and 
      


    post of Senior Lecturer in pay-scale of Rs. 3000-5000 is next superior 
   



    post.     Post   of   Head   of   Department/Senior   Lecturer   (Selection 

    Grade)/Workshop   Superintendent/Training   and   Placement   Officer 





    are still higher posts and all these posts are given pay-scale of Rs. 

    3700-5700.  He states that thus a person with requisite qualification 





    and recruited in pay-scale commencing from Rs. 2200 cannot jump 

    hierarchy and become Head.   He argues that higher qualifications 

    prescribed   in   clause   6.1.11   of   said   norms   clearly   show   that   the 

    petitioners   cannot   compare   themselves   with   Head   of   Department. 

    The   attention   is   invited   to   the   Government   Resolution   dated   26th 



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                                              8

    May 1992 which has been passed after   communication dated 20th 

    September   1989   from   the   AICTE   to   demonstrate   that   the   State 




                                                                                  
    Government had decided to implement the Scheme as envisaged by 




                                                          
    the AICTE with some modification in scales of pay and subject to 

    terms and conditions of service as described therein.  The coverage is 




                                                         
    to teacher who fulfills required qualification laid down by the AICTE. 

    Appendix-I along with this resolution is  again pressed into service to 




                                             
    show   how   post   of   Lecturer   in   the   pay-scale   of   Rs.   2200-3700   is 
                             
    lowest post or entry post.  Next higher post available is of  Lecturer 
                            
    (Senior Scale) and thereafter Lecturer (Senior Grade) and then at sr. 

    no. 4 post of  Head of Department in pay-scale of Rs. 3700-5300. 
      


    Learned   Assistant   Government   Pleader   in   this   backdrop   contends 
   



    that   effort of petitioners to compare  themselves with the post  of 

    Head of Department in present facts is, therefore, misconceived.  He 





    points   out   that   qualifications   as   prescribed   were     held   only   by 

    petitioner no. 1 and not by others.  According to him, having applied 





    in response to such an advertisement and then worked accordingly, 

    challenge   of     such   nature   raised   belatedly   is   unsustainable   and 

    deserves to be rejected.   He points out that AICTE is not providing 

    any financial assistance and hence, grant of pay-scale   is a policy 

    decision completely in domain of the State Government. 



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                                               9

    7.            Learned Assistant Government Pleader has produced All 

    India Council for Technical Education (Pay Scales, Service conditions 




                                                                                   
    and   Qualifications   for   the   Teachers   and   other   Academic   Staff   in 




                                                           
    Technical   Institutions   (Diploma)   Regulations,   2010   issued   under 

    Notification dated 5th March 2010.  These Regulations referred to as 




                                                          
    "2010  Regulations"   have come  into force on 5th March 2010 and 

    extend pay-scale of  Lecturer to Workshop Superintendent and not 




                                             
    the pay-scale of Head of the Department. Provisions of Clause 1/1.3 
                             
    (a) and Faculty Norms   prescribing   qualifications are pressed into 
                            
    service.     To substantiate this contention, orders dated 8th  February 

    1996 and 20th  January 1992 issued to one Vijay Mankar and Ajay 
      


    Shah and others are also shown to this Court to demonstrate that 
   



    the   post   of   Head   of   the   Department   is   superior   to   the   post   of 

    Workshop Superintendent.  Judgment of Honourable Apex Court in 





    State of Bihar and ors v. Bihar State Workshop Supdt Federation and  

    ors  (supra) is sought to be distinguished by pointing out that there 





    pay-scale   demanded   was   of   a   Lecturer   and   as   per   UGC 

    recommendations.

    8.              Mr   Dangre   in   reply   has   contended   that   stand   of 

    respondent no. 3 before this Court is contrary to its stand before the 

    Tribunal.     He   contends   that   similar   grievance   was   made   before 



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                                             10

    Honourable Apex Court about role of respondent no. 3 in   State of 

    Bihar   and   ors   v.   Bihar   State   Workshop   Supdt   Federation   and   ors 




                                                                                  
    (supra).   He  submits that now petitioners  no. 2 and 5  have both 




                                                          
    acquired   post-graduate   qualification   and   petitioner   no.   1   is   has   a 

    doctorate.       According   to   him,   therefore,   even   if   the   educational 




                                                         
    qualifications are required to be looked into, petitioners no. 1,2 and 

    5   satisfy   the   said   requirement.     He   has   invited   attention   to 




                                             
    communication   dated   11th  December   1998   sent   by     AICTE   to 
                             
    respondents no. 1 and 2 to show that there it has been specifically 
                            
    communicated to respondents that Training and Placement Officer 

    and Workshop Superintendents are   equal in cadre to Head of the 
      


    Department and, therefore, post of Workshop Superintendent is post 
   



    of     Head   of   the   Department.       In   this   backdrop,   observations   in 

    paragraph 40 in the judgment of  Honourable Apex Court in  State of 





    T.N.   &   anr   v.   Adhiyaman   Educational   and   ors    (supra)   are   relied 

    upon along with relevant provisions of 1987 Act to urge that norms 





    fixed by AICTE must be implemented by respondent no. 1.

    9.            Inviting attention to booklet issued by respondent no. 3 

    from   which     Annexure-E   has   been   produced   before   this   Court, 

    learned   counsel     contends   that   word   "estimation"   used   therein   is 

    only because  of number of students presumed.  He points out that 



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                                              11

    such   number  of   students   is   taken   to   be   180   and   accordingly,   the 

    number of posts required in various cadres is worked out and on that 




                                                                                   
    basis   cost   estimation   has   been   arrived   at.     According   to   him,   if 




                                                           
    number   of   students   increases   or   decreases,   it   will   result   only   in 

    proportional   reduction   in   number   of   teaching   and   non-teaching 




                                                          
    posts, but it will not affect the pay-scale as prescribed therein.  

    10.           By   placing   reliance     upon   the   fact   that   Workshop 




                                              
    Superintendent   and   Training   &   Placement   Officer   are     already 
                             
    equated with Head of the Department by Statute,   he seeks to rely 
                            
    upon  copy of   order dated  29th  July  1997  to urge  that  Training & 

    Placement Officers are duly recognized as Head of the department. 
      


    He contends that thus said recommendation of respondent no. 3 has 
   



    been implemented only in relation to Training & Placement Officers 

    and   has   been   withheld   in   case     of   cadre   of   petitioners.     This, 





    according to him, is in violation of Article 14 of the Constitution of 

    India.





    11.           Regulations issued on 5th  March 2010 and produced by 

    learned   Assistant   Government   Pleader   are   sought   to   be   used   in 

    favour   of   petitioners   by   stating   that   in   it   the   post   of   Workshop 

    Superintendent   is   recognized   as   teaching   post.       Similarly,   the 

    entitlement   or   power   of   respondent   no.   3   to   prescribe   even   pay-



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                                              12

    scales   is   duly   recognized   in   it.     Thus,   stand   of   respondent   State 

    Government before Tribunal that Workshop Superintendent is not a 




                                                                                   
    teaching post is defeated by this document.   Similarly,   finding of 




                                                           
    Tribunal that Section 10 of 1987 Act does not enable respondent no. 

    3 AICTE to prescribe pay-scales is also rendered infructuous.




                                                          
    12.           Without   prejudice   to   this   contention,   learned   counsel 

    states that the settled  service conditions of the petitioners cannot be 




                                              
    disturbed   by   these   subsequent   Regulations   which   have   come   into 
                             
    force on or after 5th March 2010.  Right to receive pay-scale of Head 
                            
    of   the   Department     has   accrued   to   petitioners     before   they 

    approached Maharashtra Administrative Tribunal in 1997 and hence 
      


    Regulations of 2010 can be given only prospective effect.  Judgment 
   



    of   Honourable   Apex  Court   in  Grid  Corporation   of  Orissa   &  ors  v. 

    Rasananda   Das  reported   at  (2003)   10     SCC   297  is   pressed   into 





    service to show that there cannot be retrospective change of pay-

    scale   prejudicial   to   the   employees.     Similarly,   judgment   of 





    Honourable Apex Court in  D.P. Sharma & ors v. Union of India and 

    anr reported at 1989 Supp (1) SCC 244 is also pressed into service 

    with   contention   that   rule   for   determination   of   seniority   and 

    promotion   cannot   be     changed   to   the   disadvantage   of   employee 

    retrospectively.     Learned   counsel,   therefore,   reiterated   that   in   the 



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                                            13

    light of norms issued by AICTE, post of Workshop Superintendent 

    must be treated as equivalent to post of Head of the Department and 




                                                                                
    in view of judgment of Honourable Apex Court in  State of Bihar & 




                                                        
    ors   v.   Bihar   State   Workshop   and   ors  (supra),   challenge   in   the 

    petition needs to be allowed.




                                                       
    13.          Judgment of Honourable Apex Court in Grid Corporation  

    & ors v. Rasananda Das  (supra) shows that there Honourable Apex 




                                           
    Court has held that conditions of service cannot be altered   to the 
                            
    disadvantage   of   employees   by   reducing   their   pay-scales   or 
                           
    withdrawing any service benefits.  Facts

show that higher pay-scale

was granted by appellant Corporation to the employees employed

prior to 1960 at par with other employees by State Government

without any reservation. Such employees were entitled to continue

in service till 60 years of age though for employees recruited after

1.4.1960 age of retirement was 58 years. Effort was made to reduce

pay-scale for such pre-1.4.1960 employees for the service rendered

by them between 58 years and 60 years. Honourable Apex Court

has found that such an exercise was violative of Article 14 of the

Constitution of India as there could not have been two types of pay-

scales, one for the purpose of continuing in service upto the age of

58 years and later for continuing after the age of 58 years till age of

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14

60 years. The observations are in the backdrop of a right to receive

pension and Honourable Apex Court has noted that the pension is

not a bounty, but hard-earned benefit. Thus, said employee while

continuing upto 58 years of age, was entitled to protection and a

higher pay-scale. However, when he was rendering service beyond

58 years and till 60 years, his pay-scale was getting reduced. This

affected his last pay and, therefore, pension. In D. P. Sharma & ors v.

Union of India and anr (supra), Honourable Apex Court has found

that rule providing that persons substantively appointed to a grade

shall rank senior to those holding officiating appointment in a grade

could not have retrospective effect. It could not impair the existing

rights of officials who were appointed long prior to the Rules came

into force. Honourable Apex Court noticed that office memoranda

relied upon by learned single Judge of the High Court and perused

by it clearly expected only length of service to be a guiding principle

for arranging inter-se seniority of officials. Approach of Division

Bench was, therefore, found not correct.

14. Here the violation of Article 14 and above case law is

pressed into service by pointing out the orders issued by the State

Government on 29th July 1997 and thereafter It appears that earlier

State Government had approved filling up of a vacancy in the post of

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15

Head of the Department by promotion. However, some posts though

approved were from quota to be filled in by nomination and hence,

ad-hoc promotions were made against it. Issue of continuing such

ad-hoc promotees further by giving them break of one day was

under consideration of the State Government. Accordingly by giving

such break, promotions have been continued. The persons whose

names appear at sr. nos. 5 and 6 in said order appear to be Training

& Placement Officers. Their qualifications are not before us and

learned Assistant Government Pleader is also not in a position to

meet this document as it has been produced today at the eleventh

hour. There is no supporting affidavit and application. Narration

above clearly shows that promotions were only on ad-hoc basis. Mr

Dangre at this stage states that compilation given by him contained

other orders also which show transfer of Training & Placement

Officers as Heads of the Department and vice-versa. The question

sought to be raised on the basis of these orders necessitates some

factual substratum. In absence thereof, we are not in a position to

accept the contension of violation of Article 14 of the Constitution of

India.

15. Perusal of 2010 Regulations produced by the Assistant

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16

Government Pleader show that the same are framed under Section

23 (1) read with Section 10 (i) and (v) of the All India Council for

Technical Education Act, 1987. Thus, same are statutory in nature.

Its cognizance, therefore, needs to be taken by this Court. The

Regulations are issued by respondent no. 3 AICTE and are acted

upon by other respondents. It is, therefore, apparent that any effort

on their part which militates with its validity cannot be

countenanced. Similarly, clause (i) thereof after clause 1.3 having

heading “General” reads that “There shall be designations in respect

of teachers in Polytechnics, namely, Lecturer, Head of the

Department and Workshop Superintendent”. Little later again,

heading “Revised Pay Scales, Service conditions and Career

Advancement Scheme for teachers and equivalent positions”

appears. It is, therefore, obvious that these 2010 Regulations accept

Workshop Superintendent as teacher. In clause (a) after this

heading, various pay-scales are prescribed from clause (i) to (xvi)

and thereafter heading “Workshop Superintendent” appears.

Thereafter Regulations mention that “Workshop Superintendent is

treated at par with Lecturer and is to be considered for upward

mobility similar to that of Lecturers”. At the end of these

Regulations, Faculty Norms are mentioned. Faculty Norms stipulate

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17

minimum qualifications and experience for appointment of teaching

posts in Diploma Level Technical Institutions. First post appearing

therein is of Lecturer/Workshop Superintendent in

Engineering/Technology. Qualifications prescribed therefor are

Bachelor’s degree in Engineering/Technology in the relevant branch

with First Class or equivalent. If the candidate is possessing Master’s

degree in Engineering/Technology, first class or equivalent is

required at Bachelor’s or Master’s level. Second post is of Head of

Department and qualification prescribed is, Bachelor’s and Master’s

degree of appropriate branch in Engineering/Technology with First

Class or equivalent either at Bachelor’s or Master’s level with

minimum of 10 years relevant experience in

teaching/research/industry. Alternate qualification prescribed is,

Bachelor’s degree and Master’s degree of appropriate branch in

Engineering/Technology with First Class or equivalent either at

Bachelor’s or Master’s level and Ph. D. or equivalent in appropriate

discipline in Engineering/Technology with minimum of 5 years

relevant experience in teaching/research/industry. It is, therefore,

obvious that because of doctorate, the candidate is eligible even if

he has five years of relevant experience.

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18

SEPTEMBER 29, 2011.

16. Having noted the qualifications for the post of Workshop

Superintendent and Head of Department in 2010 regulations, it is

appropriate to refer to the qualifications prevalent when the

petitioners were recruited. The advertisement by Respondent No. 4

published on 22.09.1988, reveals that the Educational qualification

contemplated was Second Class Degree in Bachelor of Engineering

or Master’s Degree in Engineering or then Diploma in Second Class

in Engineering and passing of A & B parts of A.M.I.E. with 3 years

experience. The pay-scale then stipulated is Rs.680-1250. The

petitioners possessed this qualification and were accordingly

appointed. Petitioner No. 1 was holding a Post Graduate

qualification. The Circular dated 26.05.1992 issued by the State

Government on division of pay-scales shows post of Lecturers in two

pay-scales. One post is in pay-scale of Rs.600-950 and another in

the pay-scale of Rs.680-1250. The pay-scale of Rs.680-1250 and Rs.

600-950 are revised on 01.01.1986 to Rs.2250-3700. The pay-scale

of Workshop Superintendent does not figure in Appendix 1 with this

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19

Government Resolution. This revision is in accordance with the

communication dated 20.09.1989 issued by the Principal Secretary

of Respondent No. 3. That communication recommends pay-scale of

Rs.700-1300 for the post of Lecturer. For Senior Lecturers, A.I.C.T.E.

had noticed that there were no uniform scales and had

recommended new scale of Rs.3000-5000. For Heads of Department

or Lecturer Selection Grade, pay-scale of Rs.1100-1600 is shown by

A.I.C.T.E. with remarks that there were no uniform pay-scales. The

proposed new scales by A.I.C.T.E. was Rs.3700-5300. The State

Government in above mentioned Appendix I has shown revised pay-

scales of Rs.3000-4500 to Lecturers (Senior Grade) and Rs.

3700-5300 to Lecturers (Selection Grade). For Heads of

Department, State Government has shown existing pay-scale of Rs.

1000-1500 and revised pay-scale from 01.01.1986 as recommended

by A.I.C.T.E. i.e. Rs.3700-5300. The petitioners were recruited in the

pay-scale of Rs.680-1250 and that pay-scale has been revised to Rs.

2200-3700 by State Government in the case of Lecturers. The

communication dated 20.12.1997 sent by Desk Officer to the

Director of Technical Education records that Workshop

Superintendents were also working in the pay-scale of Rs.

2200-3700. Thus, from 01.01.1986, pay-scale of Rs.2200-3700 has

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20

been extended to the petitioners. This, therefore, shows that after

said pay-scale was extended to the petitioners from 01.01.1986,

there was an intervening pay-scale of Rs.3000-4500 and then Rs.

3700-5300. The petitioners claimed this pay-scale of Rs.3700-5300

applicable to the Lecturers (Senior Grade) or Heads of Department,

thereby stepping over pay-scale of Rs.3000-4500 applicable to

Lecturers (Senior Grade)and those qualifications.

17.

The A.I.C.T.E. has prescribed qualifications also along

with its communication dated 20.09.1989. Those qualifications for

Lecturers are First Class Bachelor Degree or then M.Sc. First class,

qualifying in All India Examination and selection through prescribed

selection procedure. For Senior Lecturers, though qualifications

were same, five years experience as Lecturer was held essential. M.

Tech. degree or Ph.D. degree was also held sufficient. Insofar as

Head of Department is concerned, First class Master’s degree or

Ph.D. degree is held essential. Similarly, five years experience in

teaching is also essential. There recommendations nowhere

expressly make reference to the post of Workshop Superintendent.

State Government has on 26.05.1992 while implementing these

recommendations, decided to implement the same with some

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21

modifications in the scales of pay. The revised pay-scales are held

applicable to teachers who fulfilled required qualifications laid down

by A.I.C.T.E. Clause 8 of that Scheme points out details of the

qualifications as also experience required as given in Appendix V.

Clause 9 expressly mentions that candidates fulfilling minimum

qualifications prescribed for the posts of Teachers would be eligible

for grant of revised pay-scales.

18.

On 22.11.1993 State Government has modified these

requirements and noted that its resolution would be applicable to

existing technical staff such as Principal, Heads of Department,

Selection Grade/ Senior Lecturers/ Lecturers who were appointed by

Competent Authority prior to 20.09.1989 by exempting them from

acquiring revised educational qualifications.

19. The issue of qualifications need not be gone into in more

details by us. The petitioners have been given revised salary in the

pay-scale of Rs.2200-3700 from 01.01.1986. It is not the case of the

petitioners that at the time of their recruitment as Workshop

Superintendent, they were holding qualifications necessary for

appointment as Heads of Department. The Norms and Standards for

Polytechnics (Diploma Programmes) issued by All India Council for

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22

Technical Education on August 1990 nowhere carry reference to any

statutory provision under which the same have been formulated.

The perusal thereof reveals that in clause 6.1.5, categories included

in staff pattern are mentioned. Principal and Teaching staff has been

shown as Category I and Workshop staff has been shown as Category

II. Clause 6.1.6 then shows Teaching staff cadre. The lowest post in

hierarchy is shown as that of Lecturer with next higher post as

Senior Lecturer. Head of Department/ Senior Lecturer (Selection

Grade) is placed above him and at the top appears the post of

Principal. Thereafter there is a note which reads “the Training and

Placement Officer and Workshop Superintendent will be equal in

cadre to Head of Department”. These, norms also prescribe essential

qualifications for Head of Department. These qualifications are not

different than what we have noted while making reference to

communication dated 20.09.1989 issued by A.I.C.T.E. Similar

qualifications also figure for Lecturer and Senior Lecturer. Specific

qualifications for the post of Workshop Superintendent are not

separately mentioned anywhere. These norms also show the duties

and responsibilities of Teachers of Polytechnics.

20. Our attention has been invited to clause 6.2.3 which

deals with Workshop staff. The categories of workshop staff are

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23

Workshop Superintendent. Below it is placed the post of Foreman

Instructor, Workshop Instructor then Workshop Attendant. 6.2.4

deals with Workshop Superintendent. It is mentioned that he is

Head of all Workshops in Polytechnics and is responsible to the

Principal in all matters connected with the Workshop instruction,

proper utilization of men, material and machines and maintenance

in Workshops and services in various departments. At the end, again

sentence “he will be in cadre of Head of Department” appears. His

job description is also given and that job description is at Annexure F

with writ petition. The perusal of Annexure-F shows that it is

claimed to be copy of some Annexure-I and it has got heading

“Teaching Load of Workshop Superintendent for odd and even

term”. Said Annexure or workload is not forming part of Norms and

Standards for Polytechnics mentioned above. We have, therefore,

pointed out this position to the learned counsel for the petitioner.

The perusal of Writ Petition particularly para 8 shows that it is filed

as part and parcel of Table X. Table X is part of earlier Annexure i.e.

Annexure E which is nothing but Norms and Standards of

Polytechnics.

21. Perusal of original book containing Norms and Standards

of Polytechnics shows that said Annexure does not form part of Table

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24

X also. In petition, it is mentioned that in Table X, post of Workshop

Superintendent is conferred with pay-scale of Rs.3700-5700. The

perusal of Table X which deals with staff salaries reveals that it is at

page No. 57 of Norms and post of Workshop Superintendent is

shown at Sr. No. 2 along with the post of Head of Department,

Senior Lecturer (Selection Grade), Workshop Superintendent,

Training and Placement Officer. The post of Senior Lecturer appears

at Sr. No. 3 with pay-scale of Rs.3000-5000 and post of Lecturer is at

Sr. No. 4 i.e. the last cadre in pay-scale of Rs.2000-4000.

22. After these norms issued in August 1990, the State

Government has issued its resolution dated 26.05.1992 wherein it

has extended pay-scale of Rs.2200-3700 to Lecturers and as already

noted by us, State Government has done so with some modifications

in scales of pay. There is no challenge to these modifications.

23. The petitioners claimed that they are from teaching staff

and equivalent to Head of Department and hence they are entitled to

pay-scale of Rs.3,700-5300. They are not claiming any other pay-

scale or any other advantage. The judgment of the Hon’ble Apex

Court in the case of State of Bihar and others .vrs. Bihar State

Workshop Superintendents Federation and others reported at 1993

Supp (2) SCC 368, needs to be appreciated in this background.

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25

24. In the said judgment, there was an earlier petition filed

by one Shri Gupta, a Workshop Superintendent claiming himself to

be a teaching employee, and therefore, the entitlement to UGC pay-

scale. It was allowed in part, and Letters Patent Appeal against it

was also disposed of after noticing the decision of the State

Government to implement the UGC pay-scales for employees of

Polytechnic. Thus the UGC pay-scale of Rs.1200-1900 was

extended to him from 01.04.1973. S.L.P. preferred by Government

of Bihar was dismissed in motion as the Hon’ble Apex Court found

no sufficient cause for condoning the delay in filing the same.

Before the Hon’ble Apex Court in challenge to subsequent orders

passed by the High Court, contention of State of Bihar was, as

Workshop Superintendents were not holding teaching post, there

was no question of extending UGC pay-scales to them. The Hon’ble

Apex Court in this background in paragraph no.6 has noted the

contentions of respondents before it and a letter dated 12.04.1959

sent by the AICTE to all State Governments equating the post of

Workshop Superintendent with assistant professor in pay-scale of Rs.

650-1150 in engineering colleges and that of a lecturer in pay-scale

of Rs.350-850 in polytechnic conducting diploma courses. In

paragraph no.7, qualifications laid down by the AITCE on

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26

10.10.1966 for teaching staff have also been noted. For Workshop

Superintendent, qualification noted is First Class Diploma in

Engineering with 8 years experience or Second Class Degree with 5

years experience. It was further pointed out that there were only 15

Workshop Superintendents who would get the benefit, if the pay-

scales as recommended by the AICTE were extended. The Hon’ble

Apex Court has noted that it was a dying cadre and in Bihar College

of Engineering, Patna and R.I.T. Jamshedpur the Workshop

Superintendent were granted pay-scales of Assistant Professor as

per UGC. In paragraph no.8 the Hon’ble Apex Court has found that

AICTE and other authorities were treating the post of Workshop

Superintendent as teaching post and had fixed them in the pay-scale

equivalent to Associate Professor. Then the Hon’ble Apex Court has

observed that “so far as this category of respondents is concerned, it is

a dying cadre, and even if in terms, they are not entitled to grant of

UGC scale which can only be made applicable in case of a teaching staff

serving in the colleges run by the University, we find no justification so

far as the respondents are concerned, not to allow them the benefit of

the pay-scale at least equivalent to the post of assistant professors.”

25. Thus, in view of the historical background and terms and

conditions of service and pay-scales which remained applicable to

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27

the respondents for a considerable long period of time, the Hon’ble

Apex Court upheld the revised pay-scale of Assistant Professors

(senior Scale) Rs. 3000-100-3500-125-5000 to the respondents.

This has been done in order to do complete justice. Thus, finding

recorded by the Hon’ble Apex Court no where expressly state that

said post of Workshop Superintendent were held as equivalent to the

post of associate professors (senior scale). On the contrary due to

the long standing practice in State of Bihar, the terms and conditions

of service and as it was a dying cadre, in order to do complete justice

that pay-scale has been extended to the Workshop Superintendents.

It is to be noted that the said pay scale of associate professor was as

per the recommendations of the UGC and State of Bihar had already

accepted to implement the same for teaching employees of

Polytechnic and Engineering Colleges. Said Workshop

Superintendents required superior qualifications. In facts before us,

no UGC pay-scales as such is pointed out or pressed into service and

qualifications expected are also not of same level.

26. The pay-scale of lecturer as revised on 01.01.1986 is

2200-3700 and pay-scale of Lecturer [senior scale] is 3000-4500.

Pay scale of Lecturer [selection grade] is 3700-5300 as per

government resolution dated 26.05.1992. Thus exact identical pay

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28

scale comparable with one awarded by the Hon’ble Apex Court is

that of Lecturer [senior scale]. In State of Bihar that pay scale was

3000-5000, while in the State of Maharashtra it was 3000-4500. It

is to be noted that the pay-scale for Head of the Department also

began from 3700 and was same as that of Lecturer [selection grade].

The Hon’ble Apex Court was not required to look into the claim that

Workshop Superintendents are in the cadre of Head of Department

and hence, are entitled to pay scale of 3700-5300. It is not

necessary to go into more details of said matter at this stage.

However, it needs to be pointed out here that, if Lecturer [senior

scale] is shown as Senior Lecturer, AICTE Norms in August, 1990

prescribed pay-scale of Rs.3000-5000 for said post and the Hon’ble

Apex Court in State of Bihar and others .vrs. Bihar State Workshop

Superintendents Federation and others (supra) has given that pay

scale to respondents before it.

27. The qualifications prescribed for Workshop

Superintendents prevailing at the time of entry of petitioners in

service are not in dispute. The statutory regulations prescribing

qualifications have come into picture only on 05.03.2010. Faculty

norms which form part of the said regulations and lay down the

minimum qualification and requirement of experience etc., show

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29

same qualification for Lecturer and Workshop Superintendents.

These statutory regulations when viewed in the background of the

history which we have noted, it is apparent that though the

Workshop Superintendents have been treated as part of teaching

staff, they have not been treated earlier either as Lecturer or then as

Lecturer (Senior Scale). The Lecture (Selection Grade) and Head of

Department are the posts at top of the hierarchy. A person in order

to become eligible for consideration as Lecturer was required to hold

better/superior qualification then the post of Workshop

Superintendent. In this situation, mere communication from the

AICTE stating the Workshop Superintendent is equal in cadre of

Head of Department or then their inclusion in AICTE norms of

August, 1990 in Table 10 as a part of teaching staff along with the

Head of Department, Senior Lecturer (Selection Grade) or Trainee

and Placement Officer, does not by itself entitle them to the scale of

Head of Department. The Workshop Superintendents, envisaged in

August, 1990 Norms by the AICTE are persons who can be said as

equal to Head of Department or Senior Lecturer [Selection Grade]

not only because of pay scale, but because of better qualification

also. Effort of petitioners to claim pay scale of Head of Department

merely because they are equated with cadre in Head of Department,

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30

is, unsustainable. Mere mention that Workshop Superintendent is

treated at part with Head of Department or Senior Lecturer is not

sufficient. It is well settled that even while extending equal pay for

equal work, difference in qualification is held sufficient to deny this

benefit. Here also “mention” and “equation” are artificial and

became necessary, may be, only for administrative convenience.

28. Effort of petitioners is to show that because of AICTE

recommendations their pay scales stood revised to 3700-5300 with

the pay scale of Head of Department. It is to be noted that there was

no statutory instruction till 05.03.2010 in this respect. The

Government of Maharashtra in terms on 26.05.1992 adopted the

AICTE Norms with some modifications in pay scales and petitioners

were given pay scale of Rs.2200-3700 i.e. equivalent to the Lecturer

from 01.01.1986. Neither judgment of Hon’ble Apex Court in State

of Bihar (supra) nor any Norms/Standards introduced petitioners in

superior cadre. In this situation, we find no substance in the efforts

of petitioners to compare themselves with either Head of

Department or Lecturer (Selection Grade) to claim their pay-scale.

29. The Hon’ble Apex Court has in 1995 [4] SCC 104 (State

of T.N. And another .vers. Adhiyaman Educational & Research

Institute and others) considered the issue of powers with State

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31

Government to grant and withdraw permission to start an

institution, after coming into force of All India Council for Technical

Education Act, 1987 i.e. 1987 Act. All observations therein are

because of a statutory provision occupying the field vide 1987 Act,

and the State enactment i.e. T.N. Private Colleges (Regulation) Act.

Articles 246, 248 and 254 of the Constitution of India have been

found to be determinative and Entry no.66 in Schedule-VII List 1

(Union List) is interpreted. Strong reliance has been placed by the

learned counsel for petitioners on conclusions recorded in paragraph

no.41(i) by the Hon’ble Apex Court. However, the Hon’ble Apex

Court has found that the expression “coordination” used in entry no.

66 means harmonization, with a view to forge a uniform pattern

for a concerted action according to certain design, Scheme or plan

for development. It is to be noted that therefore, it includes action

not only for removing all disparities in standards, but also for

preventing the occurrence of such disparities. The further

conclusions, particularly [v] and [vi], also show situation in which

State authority is not prevented from laying higher standards or

qualifications. When State Authority de-recognizes or disqualifies

an institution for not satisfying the standards or qualifications laid

down by it, the Hon’ble Apex Court has held that if such institution

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32

satisfies the norms and recommendations laid down by the Central

Authority, the State Government acts illegally. It is therefore,

obvious that when there was a binding law occupying the field and

State Government wanted to do something inconsistent with it, the

Hon’ble Apex Court has found it unsustainable. Here that is not the

position. No binding law was available, at least till 05.03.2010. The

AICTE laid down some norms in August, 1990 but then as already

observed by us above, those norms have no statutory force.

Moreover, prescriptions therein did not and do not confer any right

upon petitioners to claim pay-scale of Rs.3700-5300/-

30. As we have found that there was no service condition,

settled or otherwise, which could have forced the State

Government to extend the pay scale of 3700-5300 to petitioners, it is

obvious that there is no change in their service conditions. The

arguments of learned Counsel for petitioners, that Regulations of

2010 are prospective and cannot affect the pay scales already

determined, are therefore, misconceived. Reliance upon judgment

reported in the case of Grid Corporation of Orissa and others .vrs.

Rasananda Das (supra) and in case of D.P. Sharma and others .vrs.

Union of India and another (supra), is therefore, misconceived. We

have already made reference to law as expanded in those judgments,

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33

briefly above and it is sufficient to reveal that reliance upon it is

misconceived.

31. Hence, in this situation, we do not find any merit in the

petition. Hence, rejection of claim as made by petitioners by

respondent no.5 Maharashtra Administrative Tribunal, cannot be

interfered with. Petition is accordingly dismissed. However, in the

circumstances of the case, there shall be no order as to costs.

                 A. P. BHANGALE, J                 B. P. DHARMADHIKARI, J
                           
    joshi
       
    






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Gorakh vs The Sub-Divisional Officer on 29 September, 2011

Bombay High Court
Gorakh vs The Sub-Divisional Officer on 29 September, 2011
Bench: S. S. Shinde
                           1                                W.P.2377.11

        IN  THE HIGH COURT OF JUDICATURE AT BOMBAY 
                     BENCH AT AURANGABAD




                                                                
                WRIT PETITION NO. 2377 OF 2011




                                        
        Gorakh   S/o   Bhagwan   @   Ganpati 
        Jaybhay,   Age:   36   Years,   Occup.: 
        Agril,,   R/o   Jayabhayewadi   Tq. 
        Jamkhed, District Ahmednagar.




                                       
                                                     ..PETITIONER
                      VERSUS   




                              
     1. The   Sub-Divisional   Officer, 
        Karjat,   Tq.   Karjat,   District 
                  
        Ahmednagar.  
         
     2. The   Tahsildar,   Karjat,   Tq. 
                 
        Karjat, District Ahmednagar.  

     3. Rutum   Baburao   Jaybhaye,   Age   68 
        Years, Occup. Agril.
      


     4. Ramkrishna   Vishnu   Jaybhaye,Age 
   



        65 Years, Occup.: Agri.

     5. Prabhau Baburao Jaybhaye, Age 60 





        Years, Occup. Agril.

     6. Vishnu   Baburao   Jaybhaye,   Age   62 
        Years, Occup. Agril.





     7. Charakdhar Baburao Jaybhaye, Age 
        68 Years, Occup. Agril.
     8. Respondent   Nos.   3   to   7   R/o 
        Jaybhayewadi,   Tq.   Jamkhed, 
        District Ahmednagar.
                                                     .RESPONDENTS




                                        ::: Downloaded on - 09/06/2013 17:47:23 :::
                              2                                 W.P.2377.11

                         ...
     Mr.N.V.Gavare,Advocate for Petitioner.
     Mr.D.R.Kale,AGP for respondent Nos. 1 and 2




                                                                   
     Mr.P.D.Ghorpade,Advocate for respondent Nos. 3 to 
     7.       
                          ...




                                           
         
                   CORAM: S.S. SHINDE, J.

                   RESERVED ON: 21ST SEPTEMBER, 2011




                                          
                                       
                   PRONOUNCED ON: 29TH SEPTEMBER, 2011

     JUDGMENT :

1. Rule. Rule made returnable forthwith. By

consent of the learned counsel appearing for the

parties, the present matter is taken up for final

hearing and disposal at the stage of admission

itself.

2. This Writ Petition is filed challenging the

judgment and order dated 01.11.2010, passed by the

learned Member, Maharashtra Revenue Tribunal,

Aurangabad, in Revision Petition NO. 6/B/2010/AN.

3. The particulars and events which are

disclosed by the petitioner in this petition are

as under.

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                               3                                W.P.2377.11

     .           The   agricultural   land   bearing   Gut   No. 

680(Old Survey No. 296) admeasuring 4H.23 R

situated at village Telangshi, Tq. Jamkhed,

District Ahmendagar, was initially owned and

possessed by one Maruti Babu Jaybhaye. Maruti

Babu Jaybhaye died on 13.7.1955 and the name of

his legal heir, namely, Bhagwan @ Ganpati S/o

Maruti Jaybhaye was recorded in the 7/12 extract

vide mutation entry No.2300.

. It is further contended that the said

Bhagwan @ Ganpati is the father of petitioner and

he was in actual possession of the suit land and

accordingly was cultivating the same. Nobody was

inducted as tenant for the suit land. The false

entry was recorded in other rights column of

Maruti Dhondi Jaybhaye as the tenant.

. It is further contended that, on 09.03.1995

the said entry was deleted vide Mutation Entry No.

2154 and the name of Bhagwan @ Ganpati was

recorded as “Khudd” in possession column of 7/12

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4 W.P.2377.11

extract. It is further contended that in the year

1980 the respondent No.7 along with one Haridas

Lahanu Jaybhaye initiated a false tenancy Case No.

32-0/1/80 before the learned Tahsildar, Karjat

against the father of the petitioner. In that

case, they posed themselves as tenants. Father of

petitioner was illiterate, poor and rustic

villager and hence present respondent No.7 along

with Haridas Lahanu Jaybhaye took undue advantage,

and the order came to be passed against the father

of the petitioner. Accordingly vide Mutation Entry

No.4188 the name of the predecessor of the

petitioner, namely, Bhagwan @ Ganpati was recorded

in other rights column.

. It is further contended that, one Haridas

Lahanu Jaybhaye has executed a sale deed in favour

of the respondent No.7 on 29.01.1986 and

transferred ½ share in the said land. Accordingly,

Mutation Entry No. 123 was recorded. The said land

was allotted on tenure therefore, prior to

executing sale deed, the necessary permission

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5 W.P.2377.11

ought to have obtained from the Revenue Authority.

Said alienation was illegal and void-ab-initio.

. It is further contended that, the suit

property was sub-divided and the Mutation Entry

No. 691 has been carried out on 21.07.1993. The

said mutation entry is unlawful and hence the

possession of respondent No.3 to 7, is illegal.

The petitioner states that, father of petitioner

died leaving behind sister, namely, Nilabai

Gopinath Khade, wife namely Gayabai, son the

present petitioner and daughter namely Nandubai

Ganesh Gopalghare. It is further contended that,

initially, the petitioner was not aware of the

illegalities committed, but subsequently after

though the record and documents the petitioner

demanded the possession of land from respondent

Nos. 3 to 7 but they refused to handover the

possession.

. It is further contended that, the petitioner

through his advocate send a legal notice to the

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6 W.P.2377.11

respondent Nos. 3 to 7 on 02.08.2007 and claimed

for possession of land but the respondents have

not paid any heed. In the year 2007, the

petitioner filed Appeal No. 3 of 2007 before the

Sub- Divisional Officer, Karjat and challenged the

order passed by the learned Tahsildar in Tenancy

Case No. 32-0/1/80. The respondent Nos. 2, 5 and 6

appeared before the learned Sub-Divisional Officer

on 11.03.2008 and filed their reply.

. It is further contended that the learned Sub-

Divisional Officer has been partly allowed the

appeal on 19.08.2009 and directed the Tahsildar to

further inquire and verify the 7/12 extract and

all mutation entries of suit land under the

provisions of Tenancy law and further directed to

decide the proceedings within a period of six

months from the date of order.

. It is further contended that the present

respondent Nos. 3 to 6 being aggrieved and

dissatisfied by the judgment and order dated

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7 W.P.2377.11

19.08.2009, passed by the learned Sub-Divisional

Officer, preferred Revision Application NO. 6-

B-2010-AN along with application for condonation

of delay before the learned Member, Maharashtra

Revenue Tribunal Aurangabad, on 31.12.2009.

. It is further stated that the learned

Member, Maharashtra Revenue Tribunal, Aurangabad

on 01.11.2010 has been pleased to allow the

Revision Petition and set aside the order passed

by the learned Sub-Divisional Officer Karjat in

Tenancy Appeal No. 3 of 2007, observing that in

the present case the appeal was filed after 27

years and no application for condonation of delay

was filed. Hence, present Writ Petition is

preferred.

4. This Court issued notice in Writ Petition.

Pursuant to that, respondent Nos. 3 to 6 have

filed affidavit in-reply, which is part of

compilation of the Writ Petition from page Nos. 42

to 45.

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8 W.P.2377.11

5. Learned counsel appearing for the petitioner

submitted that, the agricultural land bearing Gut

No. 680(Old Survey No. 296) admeasuring 4H.23 R

situated at village Telangshi, Tq. Jamkhed,

District Ahmendagar,is the disputed property.

. Learned counsel further submitted that,

the disputed property was initially owned and

possessed by Maruti Babu Jaybhay and subsequently

was inherited, after is demise by Bhagwan @

Ganpati Maruti Jaybhay, the father of the

petitioner. Nobody was ever inducted as tenant in

the disputed property, however, false entry was

recorded in other rights column of one Marutii

Dhondi Jaybhay as tenant. The said entry was

further deleted vide mutation entry No. 2154 and

the land was in possession of Bhagwan @ Ganpati

Jaybhay. The respondents had no concerned with

the disputed property either as tenant or in any

other capacity.




     .      Learned counsel further submitted that the 




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                              9                                 W.P.2377.11

father of the petitioner, namely, Bhagwan @

Ganpati is simpleton and illiterate, poor rustic

villager. The respondents are men of means and

influential person. The father of the petitioner

was brutally assaulted and threatened of dire

consequences by the respondents, and therefore, in

order to save life, he succumbed to the pressure

of the respondents and virtually agreed to certain

things of which the respondents took the undue

advantage. The father of the petitioner was

subsequently left the village and never returned

thereafter.

. Learned counsel further submitted that,

respondent No.7 along with one Haridas Lahanu

Jaybhaye on 12.08.1980 initiated false Tenancy

case No. 32-0/1/80, U/S.32-O of Bombay Tenancy and

Agricultural Lands Act (Hereinafter referred to as

“said Act” for the sake of brevity) before the

Tahsildar Karjat on the basis of fake tenancy

claim. The father of petitioner has fallen prey to

the pressure exerted by respondent No.7 and

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10 W.P.2377.11

others. The respondent No.7 and others have failed

to tender intimation to the father of the

petitioner of desire to exercise the right of

purchase conferred by section 32-O of the said

Act, within period of one year from the

commencement of alleged tenancy. However, the

respondent No.7 has failed to prove that right of

purchase was exercised within one year from the

commencement of tenancy and also the fact that the

intimation of desire to exercise right of purchase

was given as per form “X” as envisaged under Rule

20 of Bombay Tenancy and Agricultural Lands Rule

1956.

. Learned counsel further submitted that,

however, no such intimation was ever given by the

respondent No.7 within period of one year in Form

‘X’. Even the learned Tahsildar has not considered

the said crucial aspect and thus the entire

proceeding stands vitiated and provisions of Rule

32-O of the said Act could not have been invoked

to perfect the claim of respondent No. 7. Even the

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11 W.P.2377.11

learned Tahsildar has not considered the said

aspects. Therefore, there is nothing on record to

indicate that, respondent No.7 so called tenant

had intimated his willingness to purchase suit

land within one year from taking lease, therefore,

the matter is required to be remitted to Tahsildar

Karjat as per law laid down by Hon’ble Apex Court

in the matter of Ramesh Ramnarayan Dangare Vs.

Vithabai B. Wakchaure and another, reported in

2004(5) All MR 1151(SC).

. Learned counsel further submitted that,

respondent No.7 has fraudulently posed himself as

tenant by putting the father of the petitioner

under threat. The petitioner at the relevant time

was minor and father was forced to leave the

village on account of terror of respondent No.7

and others. Therefore, the petitioner had no

knowledge regarding the decision rendered by

Tahsildar and could not be subjected to challenged

immediately.

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                              12                                W.P.2377.11

     .     It is further submitted that, the petitioner 

is illiterate and after getting knowledge

immediately preferred Appeal No. 3 of 2007 before

Sub-Divisional Officer, Karjat challenging the

order passed by the learned Tahsildar. Because of

inadvertence on the part of advocate the separate

application for delay condonation could not be

preferred, but learned Sub-Divisional officer,

Karjat vide order dated 19.08.2009 partly allowed

the appeal and directed the Tahsildar to verify

the record of disputed property since year 1950

and also to consider the same in light of the

provisions of the Bombay Tenancy and Agricultural

Lands Act. It has been observed by the learned

Sub-Divisional Officer that, on the relevant date

one Maruti Dhondi was shown as tenant and the said

entry has been subsequently cancelled vide

Mutation Entry No. 1632. It has been also observed

that the record is not traceable which leads to

suspicion and further alienation of the suit

property is illegal.

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                             13                                W.P.2377.11

     .        Learned counsel further submitted that it 

is also crystal clear that the respondents i. e.

so called tenants have been successful in proving

and establishing, as to when and how they become

tenant on the suit property. The learned Sub-

Divisional Officer has precisely remanded the

matter to verify the factual aspects, as the basis

claim of the respondents regarding their so called

tenancy was false, baseless and fraudulent.

Therefore, the proceedings u/S.32-O of the said

Act were not maintainable an order passed thereon

is illegal, non-est and nullity in eyes of law.

. Learned counsel appearing for the petitioner

further submitted that, the disputed property is

ancestral property of the petitioner and his

father Bhagwan. Nobody ever was inducted as

tenant. One Maruti Dhondi Jaybhay was illegally

shown as tenant to disputed property, but

subsequently vide Mutation Entry No. 2154 entry

regarding the said tenant was deleted.

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                               14                                W.P.2377.11

     .     Learned counsel further submitted that, the 

respondent No.7 Chakradhar and others fraudulently

on or about year 1980, filed proceeding U/s.32 of

the said Act, in absence of any tenancy and

without notifying any date as to when and how they

acquired the status of tenant.

. learned counsel further submitted that, no

intimation expressing desire to purchase the

disputed property was ever given by the

respondents to the father of the petitioner within

period of one year from the date of their so

called tenancy, in Form ‘X’ as per Rule 20 of the

Bombay Tenancy and Agricultural Lands Act and

Rules 1956 and as per Section 32-O of the said

Act, therefore, the proceedings filed by the

respondents under Section 32-O of the said Act

were itself not maintainable and misconceived. The

learned Tahsildar has not appreciated the said

fact.




     .      Learned counsel further submitted that, the 




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                              15                                W.P.2377.11

matter can be remanded to Tahsildar to find out

whether intimation was given or not by the tenant

in prescribed form, within period of one year from

the alleged tenancy. The most suspicious part is

that, the record is shown to be have misplaced and

untraceable, in order to favour the respondents.

The litigants should not suffer for the fault and

inadvertence on the part of advocate.

. Learned counsel appearing for petitioner

invited my attention to the reported judgment of

Supreme Court in the case of Ramesh Ramnarayan

Dangare Vs. Vithabai B. Wakchaure and another,

reported in 2004(5) All MR 1151(SC), in

particular, para No.5 of the said judgment and

submitted that, in the present case nothing is

brought on record showing that tenant had

intimated his willingness to purchase suit land

within one year from taking lease. Therefore, he

submits that it is necessary to remit this matter

back by giving opportunity to the petitioner to

file application for condonation of delay to find

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16 W.P.2377.11

out whether intimation was given by tenant or

not?.

. Learned counsel further invited my attention

to the reported judgment of Supreme Court in the

matter of Pandurang Dnyanoba Lad Vs. Dada Rama

Methe reported in 1976(2)SCC 236 and submitted

that, Section 32-O of the said Act applies only to

tenancies created after the tillers’ day. It

provides that in respect of such tenancies, a

tenant desirous of exercising the right of

purchase must give an intimation to the landlord

and the Tribunal within one year from the

commencement of his tenancy. However, in the

present case, there is nothing on record showing

that such intimation was given to the landlord by

the tenant. Therefore, the learned counsel

appearing for petitioner would submit that the

petition deserves to be allowed.

6. On the other hand, learned counsel appearing

for respondent Nos. 3 to 6 submits that, the

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17 W.P.2377.11

prayer of the petitioner for remanding back the

matter will not survive any purpose, because

purchase certificate U/Sec. 32(M) of the said Act

is already issued by the Tahsildar, Jamkhed in

favour of Tenant on 27.07.1981 and the said

Certificate is not challenged by the original

landlord and present petitioner before Sub-

Divisional Officer nor before this Hon’ble Court

in this Writ Petition. As per section 32(M) of

the said Act 1948, “Purchase Certificate” shall be

conclusive evidence of purchase”. Here the

petitioner is challenging proceeding U/Sec. 32-O

of the said Act, the order passed by Tahsildar on

31.08.1980, but the tenant had already complied

with the legal proceeding U/Sec.32-O of the said

Act, and deposited the compromise amount of Rs.

3,500/- before the Tahsildar. Learned counsel

further submitted that, purchase certificate has

been issued by Tahsildar in favour of the tenant,

which is not challenged by the landlord and the

petitioner till today. Hereafter, it becomes

conclusive and final against the landlord and the

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18 W.P.2377.11

petitioner. Though, the matter will get remanded

and appeal is allowed, thereafter, also the

tenant’s right will not get affected, because

“Purchase Certificate” became conclusive and final

against the landlord and the petitioner. This

Certificate is intentionally suppressed by the

petitioner on this ground, the petitioner is not

entitled to any relief.

. In support of his submission, the learned

counsel placed reliance on the judgment of this

Court in the matter of Smt. Ramkuwar W/o Ramkisha

Pallod (Deceased through L.Rs.) Vs. Shri

Krushnanath Sajan Belhekar and another reported in

2010(5)ALL MR,529. In this case, the learned

Single Judge has taken a view that “Purchase

Certificate” is issued in favour of Tenant U/Sec.

32(M)of the said Act, therefore, right stood

crystallized in favour of tenant. The Certificate

is not challenged, it’s become final against

original landlord. Fact of issue of Certificate

was suppressed in Writ Petition. Held, petitioner

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19 W.P.2377.11

is not entitled to any relief.

. Learned counsel further submitted that, the

petitioner stated in his petition that the

original landlord is dead, but he has not given

specific date of death and he has not produced any

document on record to support his submission that,

his father(Original landlord) is dead and his

legal heirs on record. It is further submitted

that, the original landlord is alive and presently

residing at village Ujjaini, Tq. Indpaur, District

Pune. This fact is also intentionally suppressed

by the petitioner, also in his rejoinder, in para

No.6 and page No.61, the petitioner is silent on

this point. Therefore, the petitioner has no

locus-standi to file any appeal. Learned counsel

further submitted that, the petitioner has

suppressed the material fact and mislead the

Court, hence, this Writ Petition is liable to be

dismissed.




     .           Learned   counsel   further   submitted   that, 




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                              20                                 W.P.2377.11

tenancy had commenced from 1980-1981, so far

further requirement of proceeding, respondents

filed application within one year under section

32-O of the said Act, in Tenancy Case No. 32-

O-1/80 on 12.08.1980, before Tahsildar, Jamkhed

for claiming the right of tenancy before the

Tahsildar. The Tahsildar recorded findings in the

affirmative at page No.53.

. Learned counsel further submitted that in

this proceeding U/S.32-O of the said Act before

the Tahsildar, original landlord Bhagwant @

Ganpati Maruti Jaybhay appeared and given his

written statement, in which he admitted

respondents rights as tenant on the land. The

Tahsildar recorded his statement and finding,

which is at Page No.52, in the order passed by the

Tahsildar on 31.08.1980, compromise of the

purchase amount of Rs. 3,500/- between the

landlord and the tenant. This finding is also

recorded by the Tahsildar at Page No. 54 and 55,

in the said order passed by the Tahsildar on

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21 W.P.2377.11

31.08.1980.

. Learned counsel further submitted that, it

is admitted by the original landlord and same is

recorded by the competent authority, and

therefore, estoppal is attract on that point. This

petitioner has no locus-standi to file appeal

after 27 years. Original landlord had knowledge

about the order passed by the Tahsildar on

31.08.1980, but he has not challenged the order

till today and it becomes final against him. The

learned counsel, in support of this submission

placed reliance upon the reported judgment of Apex

Court in the matter of State of Punjab Vs.

Gurudevsingh and Ashok Kumar (AIR 1992 S.C.111)

(Para No.8). In this judgment, the Apex Court

observed that, “if the statutory time limit is

expired, the Court cannot give the declaration

sought for.”

. Learned counsel further submits that, the

present petitioner preferred an appeal in 2007

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22 W.P.2377.11

before Sub-Divisional Officer, Karjat as Appeal

No. 3 of 2007 against the order passed by the

Tahsildar on 31.08.1980, and that appeal was

allowed in absence of application for condonation

of delay and without condoning the delay. The

learned Sub-Divisional Officer allowed the appeal

without jurisdiction, tenant challenging that

order before Maharashtra Revenue Tribunal, in

Revision Petition No. 6/B/2010/AN. The Tribunal

allowed the Appeal on 01.11.2010 and set aside the

order passed by Sub-Division Officer, Karjat in

Tenancy Appeal No. 03 of 2007, which is illegal

and without jurisdiction. The learned counsel

further submitted that, Whether in absence of

proper application of condonation of delay or

without condoning the delay, the Sub-Divisional

officer have jurisdiction to allow the Appeal

filed by the petitioner after 27 years?. In

support of this submission he placed reliance on

the reported judgment of Apex Court in the matter

of Ragho Singh Vs. Mohan Singh and others reported

in AIR 2011 SCW/2351(Para No.6).

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                              23                                W.P.2377.11

     .     Learned counsel further submitted that, once 

the proceedings Under section 32-O of the said Act

is over and the tenant had deposited the purchase

amount and the Tahsildar issued “Purchase

Certificate” U/Sec.32(M)of the said Act, it is the

conclusive evidence, the Tahsildar has no

jurisdiction to initiate fresh proceedings U/Sec.

32-O of the said Act. In support of this

submission, learned counsel placed reliance on the

reported judgment of this Court in the case of

Sidappa Rama Patil Vs. Sattur Laman Kole(Deceased

by L.Rs.) reported in 2005(1) ALL MR 123(Para Nos.

6 and 7).

. The learned counsel appearing for respondents

submitted that, Haridas Lahanu Jaybhay is one of

the protected tenant in tenancy Case No.

32(O)/1/80, but he was not made a party in Appeal

before the Sub-Divisional Officer and this Writ

Petition also Hence, this Writ Petition is not

maintainable for non joinder of the necessary

parties and same is liable to be dismissed.

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24 W.P.2377.11

7. I have given due consideration to the rival

submissions of the parties. It appears that, on

02.08.2007, the petitioner herein through his

Advocate sent a legal notice to respondent Nos. 3

to 7 and claimed the possession of the land, but

the respondents have not paid any heed. In the

year 2007, the petitioner filed Appeal No. 3 of

2007 before Sub-Divisional Officer, Karjat,

challenging the order passed by the learned

Tahsildar, Karjat in Tenancy Case No. 32-O/1/80,

therefore, it is clear that the petitioner herein

challenged the order passed by the Tahsildar,

Karjat in tenancy Case No. 32-O/1/80, after 27

years. It further appears that respondent Nos. 3,

5 and 6 contested the Appeal before Sub-Divisional

Officer, and Sub-Divisional Officer by his order

dated 19.08.2009 allowed the Appeal and directed

the Tahsildar to further inquire and verify the

7/12 extract and all Mutation Entries of suit land

under the provisions of Tenancy Law and further

directed to decide the proceedings within a period

of six months from the date of order.

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25 W.P.2377.11

8. Being aggrieved by the Judgment and order

of Sub-Divisional officer, respondent Nos. 3 to 6

herein, challenged the said judgment and order

before the learned Member, Maharashtra Revenue

Tribunal Aurangabad by filing Revision Application

NO. 6-B-2010-AN. The learned Member, Maharashtra

Revenue Tribunal, Aurangabad on 01.11.2010 was

pleased to allow the Revision Application and set

aside the judgment and order of Sub-Divisional

Officer, Karjat, in Tenancy Appeal No. 03 of 2007.

9. I have carefully perused the reasons recorded

by the learned Member, Maharashtra Revenue

Tribunal, Aurangabad, the Tribunal in its judgment

in para No. 6 to 9 has assigned the reasons for

allowing Revision Application. learned Member,

Maharashtra Revenue Tribunal, Aurangabad has

adverted to observations made by learned Sub-

Divisional Officer, Karjat, where he has observed

that the Appeal was not within period of

limitation, however, further it is observed that,

it is necessary to examine the merits of the

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26 W.P.2377.11

Appeal. Therefore, learned Member, Maharashtra

Revenue Tribunal, Aurangabad relying upon the

judgment of this Case in the case of Ballumala Vs.

M/s J.J. Builders, 2003 MH.L.J., 238 held that the

Court has no jurisdiction to condone the delay, in

absence of proper application under section 5 of

the Limitation Act, 1963.

. In the present case, the appeal was filed

after 27 years, before Sub-Divisional Officer,

Karjat, from the order under appeal came to be

passed. The appeal was filed after the prescribed

period of limitation. No application for

condonation of delay was filed. Therefore, learned

Member, Maharashtra Revenue Tribunal, Aurangabad

held that, “the Authority below have no power or

jurisdiction to entertain or decide the Appeal, in

absence of application for condonation of delay.

In absence of application for condonation of

delay, appeal would not have been admitted and

taken up for hearing. Therefore, learned Member,

Maharashtra Revenue Tribunal, Aurangabad held that

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27 W.P.2377.11

Sub-Divisional Officer has exceeded its

jurisdiction in as much as it decided the Appeal

in absence of any application for condonation of

delay. Therefore, learned Member, Maharashtra

Revenue Tribunal, Aurangabad quashed and set aside

the judgment and order of Sub-Divisional Officer.

10. I have independently scrutinized the facts

and law involved in the case and I find that view

taken by the learned Member, Maharashtra Revenue

Tribunal, Aurangabad is reasonable and also in-

consonance with the evidence brought on record. I

do not find any infirmity in the view taken by the

learned Member, Maharashtra Revenue Tribunal,

Aurangabad.

. It is admitted position that, the petitioner

herein challenged the order passed by the

Tahsildar in the year 1980, after 27 years, before

the Sub-Divisional Officer. The Appeal was filed

by the petitioner in the year 2007. During the

course of argument, the learned counsel appearing

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28 W.P.2377.11

for the petitioner was called upon to explain

inordinate delay in filing the Appeal. He

submitted that the petitioner was minor at the

relevant time. The petitioner was present in the

Court and on enquiry from the petitioner himself,

counsel for the petitioner informed this Court

that the petitioner is born in the year 1979.

Even, if it is presumed that the petitioner was

minor till 1997, after attending age of 18 years,

at the most Appeal should have been preferred in

the year 1997-1998. However, admittedly, in the

present case the Appeal is filed in the year 2007.

It is admitted position that, no application for

condonation of delay was filed along with Appeal

before the Sub-Divisional Officer. This Court had

occasion to consider some what similar point in

the case of Sidappa Rama Patil Vs. Suttar Laman

Kole(Deceased by L Rs.) and others supra, this

Court in para No.6 and 7 held that:

“6. After hearing counsel for the
parties I have no hesitation in
taking the view that it is un-

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29 W.P.2377.11

necessary for this Court to burden
the judgment with the merits of the

rival claim with regard to the
relationship between the parties. I

find force in the argument canvassed
on behalf of the petitioners that as
the appeal preferred by the landlord

was barred by limitation, it was
obligatory that it was accompanied
by an application for condition of

delay, or at least a prayer in the

memo of appeal itself for condoning
the delay in filing the appeal; and

further that Appellate Authority
ought to have condoned the delay
before deciding the case on merits.

It is well settled that if the
appeal is barred by limitation, the

appellate court would assume
jurisdiction only if the delay in

filing such an appeal was to be
condoned in the first place. The
delay can be condoned only if such a
prayer is formally made by the

appellant. The court on its own
cannot find out some reason to grant
the relief which is not prayed by
the appellant. In the present case,
it is common ground that no formal

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30 W.P.2377.11

application for condonation of delay
in filing the appeal was filed nor a

formal prayer for condoning the
delay in filing the appeal was

incorporated in the appeal memo.
Moreover, there is nothing on
record(at least brought to my notice

by the counsel for the respondent)
that the Appellate Authority had
condoned the delay before

entertaining the appeal which was

filed by the landlord after lapse of
10 years. The argument that the

appellant landlord had no notice
about the earlier proceeding cannot
be the basis to ignore the order

which was operating against the
landlord-appellants. That order can

only put in the issue on filing
appeal which is in accordance with

law. Mere filing of appeal, which is
barred by limitation, is not enough
but it was necessary to be
accompanied with an application for

condonation of delay and the delay
should be first excused only when
the Appellate Court can assume
jurisdiction to enter upon the
merits of the case. This view is

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31 W.P.2377.11

supported by the decisions relied on
behalf of the petitioners as

referred to above. In this view of
the matter it necessarily follows

that the Appellate Authority had no
jurisdiction to proceed to decide
the matter on merits in favour of

the landlord. This crucial aspect
has been completely overlooked by
the Tribunal while deciding the

revision application, which is the

manifest error resulting in serious
miscarriage of justice. The

Tribunal, on the other hand, found
that even though the appeal was not
filed within limitation, but since

the landlord was not served with the
notice, of the earlier order passed

in the earlier proceeding, there was
no question of delay as that

decision was nullity. This is not
the correct legal position. The
order does not become nullity
because of non-service of notice but

it would be at best a case of
irregularity which can be questioned
in appeal before the appropriate
authority. On the above reasoning,
the order of the appellate authority

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32 W.P.2377.11

as well as the revisional authority
will have to be reversed without

going into the merits of the rival
controversy, as there was no prayer

for condonation of delay in filing
the appeal nor such an order has
been factually passed by the

appellate authority.

7. In so far as the order passed by

the Tahsildar dated December 31,

1972 in the subsequently initiated
32G proceedings is concerned, I have

no hesitation in taking the view
that initiation of fresh 32 G
proceeding by the Tahsildar was

without jurisdiction. Once the
proceeding was finally decided by

him and on which basis certificate
under section 32(M) of the Act has

already been issued in favour of the
tenant, on passing order in the
earlier proceeding the Tahsildar had
become functus officio and it was

not open to him to once again
initiate fresh proceeding under
section 32G of the Act. Viewed in
this perspective, the order passed
by the Tahsildar dated December 31,

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33 W.P.2377.11

1972 deserves to be set aside being
without jurisdiction. This crucial

aspect is once again glossed over by
the Appellate Authority as well as

the Revisional Authority, in spite
of such a grievance being made by
the petitioners.”

11. The Supreme Court in the case of Ragho Singh

Vs. Mohansingh and others cited supra has take a

view that if the Appeal is filed beyond time and

if application for condonation of delay is not

filed, the delay cannot be deemed to have been

condoned and Appeal is liable to be dismissed.

12. In another case, State of Punjab and others

Vs. Gurudev Singh and Ashok Kumar cited supra, the

Supreme Court held that:

“The party aggrieved by the
invalidity of the order has to
approach the Court for relief of

declaration that the order against
him is inoperative and not binding
upon him. He must approach the Court
within the prescribed period of

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34 W.P.2377.11

limitation. If the statutory time
limit expires the Court cannot give

the declaration sought for. Further
the words “right to sue” under Art.

113 ordinarily mean the right to seek
relief by means of legal proceedings.
Generally, the right to sue accrues

only when the cause of action arises,
that is, the right to prosecute to
obtain relief by legal means. The

suit must be instituted when the

right asserted in the suit is
infringed or when there is clear and

unequivocal threat to infringe that
right by the defendant against whom
the suit is instituted. When the

employee is dismissed from service
his right to continue in the service

is infringed. If an Act is void or
ultra vires it is enough for the

Court to declare it so and it
collapses automatically. It need not
be set aside. The aggrieved party can
simply seek a declaration that it is

void and not binding upon him. A
declaration merely declares the
existing state of affairs and does
not ‘quash’ so as to produce a new
state of affairs. But nonetheless the

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35 W.P.2377.11

impugned dismissal order has at least
a de facto operation unless and until

it is declared to be void or nullity
by a competent body or Court.”

13. In the present Writ Petition, the petitioner

has not disclosed that Certificate under Section

32(M) of the said Act has been issued in favour of

respondent Nos. 3 to 6. It is admitted position

that there is no challenge to such certificate by

the petitioner. I find considerable force in the

argument of learned counsel appearing for

respondent Nos. 3 to 6 that in some what similar

situation, this Court in the case of Smt.

Ramkunwar W/o Ramkishan Pallod Vs.Shri Krushnanath

Sajjan Belhekar and other cited supra held in para

Nos. 9 10, and 11, which read thus:.

“9. Even this Court in a case of ”

             Bhaskar   Naryan       Kuvalekar       & 
             others       Vs.       Bhaskar   Narayan  





Kuvalekar & others, reported in 1999
(4) BCR 711:1998(4) ALL MR 403]” has
observed thus :-

” It is apparent from the aforesaid

::: Downloaded on – 09/06/2013 17:47:23 :::
36 W.P.2377.11

provision of Section 32-M
that the certificate issued under

this section is conclusive
evidence of purchase. The said

certificate was not challenged by the
petitioner in appeal. The
certificate under section 32-

M was issued in favour of respondent
No. 1 in the year 1960 and
that conclusively establishes that

respondent No. 1 was purchaser of the

land which would mean that respondent
No. 1 was in possession of the land

in question as tenant on 1st April,
1957. The certificate issued
under section 32-M having

attained finality in all
respects, it was not open to

the Tahsildar to declare the
said certificate as nullity

in the proceedings initiated by the
petitioner under section 32-G of the
Bombay Tenancy Act. Even if it
is assumed that petitioner

had no notice of the
proceedings initiated by the
respondent No. 1 under section 32-G
and pursuant thereto the
certificate under section 32-M

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37 W.P.2377.11

was issued in favour of respondent
No. 1, upon acquiring the knowledge

of such certificate having been
issued in favour of respondent No.

1, the petitioner could have only
challenged its legality in appeal and
not by way proceedings under section

32-G of the Bombay Tenancy Act. The
Tahsildar acted without jurisdiction
in declaring the certificate issued

in favour of respondent No. 1, as

nullity and grossly erred in
declaring the petitioner as

deemed purchaser on the face
of the certificate issued under
section 32-M in favour of

respondent No. 1. The said
order passed by the Tahsildar

being patently erroneous has rightly
been set aside by the Collector,

Sindhudurg. The Maharashtra Revenue
Tribunal also did not commit
an error in affirming the correct
order of the Collector,

Sindhudurg”.

10. In the present case, the
certificate under Section 32-M has
already been issued in the year

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38 W.P.2377.11

1987, such certificate is the
conclusive evidence of purchase

price. It is also not disputed
that the purchase price has been

paid. The rights having been
crystallized in favour of the tenants
i.e. the respondents the same could

not have been challenged only by
filing appeal as provided under the
statute. The said certificate is

conclusive against the landlords. In

view of the, law laid down by the
Apex Court and our High Court

referred supra. I am of the view,
that the said certificate has
become final, in such

circumstances, even if the
arguments of Shri Kulkarni are

accepted that the legal heirs should
be allowed to further adduce

the evidence in respect of
personal cultivation and for
that purpose remand the matters,
still it will not serve any

purpose, as the certificate
under Section 32-M as against these
petitioners have become final.

      11.     The       conduct       of       the  
      petitioners       also   needs     to       be 




                                     ::: Downloaded on - 09/06/2013 17:47:24 :::
                              39                                 W.P.2377.11

            taken  into   consideration,    while  

exercising the jurisdiction under

Article 227 of the Constitution of
India. The petitioners have

suppressed the material fact about
issuance of certificate in favour of
the respondents/tenants under

Section 32-M, though the same
has been issued in the year
1987 and the present writ

petitions are filed in the

year 1991. The petitioners are
guilty of suppression of material

facts, on this count also the
petitioners would be dis-entitled to
claim any relief. ”

14. In that view of the matter, in my considered

opinion, the view taken by the learned Member,

Maharashtra Revenue Tribunal is inconsonance with

law laid down by the Supreme Court as well as this

Court. So, I do not find any substance in the Writ

Petition and same stands dismissed. Rule stands

discharged. Sd/-

[S.S. SHINDE, J.]

MTK

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40 W.P.2377.11

::: Downloaded on – 09/06/2013 17:47:24 :::

Late Narayanlal Bansilal vs The State Of Maharashtra on 28 September, 2011

Bombay High Court
Late Narayanlal Bansilal vs The State Of Maharashtra on 28 September, 2011
Bench: B. P. Dharmadhikari, A.P. Bhangale
                                 1




                                                                          
             IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                  
                       NAGPUR BENCH, NAGPUR.




                                                 
                         FIRST APPEAL 142 OF 2000
                                   WITH 
                          FIRST APPEAL 53 OF 2001
                                   WITH 
                   CIVIL APPLICATION (F) No. 2282/2011.




                                    
                    ig               ............


     FIRST APPEAL No.142/2000.
                  
     1.Late Narayanlal Bansilal
        (through Shri Madhavlal N. Pittie
        Receiver of the Immovable Properties,
      

        appointed in the High Court Suit
        No. 224 of 1961) Great Social
   



        Building, 4th Floor, 60 Sir P.M. Road,
        Fort, Bombay 400001.

     2.Smt. Rajkumari N. Pittie III Plazzo,





        Little Gibbs Road, Malabar Hill, 
        Bombay 400 006 (Deleted as per 
        Order dated 24.6.1999 
        below Exh.254). 





     3.Shri Balkrishnalal N. Pitale, 
        (HUF), Flat No.12, "Palmera" 
        Altamount Road, Bombay 400026  
        (Dead) 

     3-I. Mrs. Radhabai Pitte.




                                                  ::: Downloaded on - 09/06/2013 17:46:54 :::
                               2


     3-II.Mrs. Veena N. Ruia,




                                                                        
            R/o. Samudra Mahal, 17th Floor,
            417, Dr. Annie Besant Road,




                                                
            Worli, Bombay - 4400018.

     4.Shri Madhusudanlal N.  Pittie
        (HUF), "Suket", (Dead through L.R)




                                               
         Smt. Damyantibai Madhusudanlal Pittie,
         29-B, Dongerisi Road 
        Malabar Hill, Bombay 400006. 

     5.Shri Madhavlal N.  Pittie




                                   
        (HUF), "Suket", 29-B, Dongerisi Road 
        Malabar Hill, Bombay 400006. 
                   
     6.Shri Madhavlal N.  Pittie
        (IND), "Suket", 29-B, Dongerisi Road 
                  
        Malabar Hill, Bombay 400006. 

     7.Shri Vivek Madhavlal N.  Pittie
        "Suket", 29-B, Dongerisi Road 
      

        Malabar Hill, Bombay 400006.
   



     8.Smt. Sulchana M.  Pittie
        r/o.  "Suket", 29-B, Dongerisi Road 
        Malabar Hill, Bombay 400006.                     ....APPELLANTS.





                                    VERSUS





     The State of Maharashtra,
     through Collector, Amravati,
     District - Amravati.                               ....RESPONDENT
                                                                       . 




                                                ::: Downloaded on - 09/06/2013 17:46:54 :::
                                 3




                                                                        
                                       WITH




                                                
     FIRST APPEAL No.53/2001.




                                               
     The State of Maharashtra,
     through Land Acquisition Officer,  
     Amravati.                                               ....APPELLANT.

                                      VERSUS




                                   
                    
     1.Late Narayanlal Bansilal
        (through Shri Madhavlal N. Pittie
        receiver of the immovable properties),
                   
        (Appointed in the High Court Suit
        No. 224 of 1961) Great Social
        Building, 4th Floor, 60 Sir P.M. Road,
        Fort, Bombay 400001.
      


     2.Smt. Rajkumari N. Pittie 4-C III Plazzo,
   



        Little Gibbs Road, Malabar Hill, 
        Bombay 400 006 (Deleted as per 
        Order dated 24.6.1999 
        below Exh.254). 





     3.Shri Balkrishnalal N. Pitte, 
        (HUF), Flat No.12, "Palmera" 
        Altamount Road, Bombay 400026  
        (Dead) 





     3.I) Mrs. Radhabai B.Pitte.
            Flat No.12, Palmera, Bombay 400026.


     3-II)Mrs. Veena N. Raia,
            R/o. Samudra Mahal, 17th Floor,
            417, Dr. Annie Besant Road,




                                                ::: Downloaded on - 09/06/2013 17:46:55 :::
                              4


            Worli, Bombay - 4400018.




                                                                       
     4.Shri Madhusudanlal N.  Pittie




                                               
        c/o. Madhavlal Narayanlal Pitte,
        r/o. Harinagar Sugar Mills, World Trade
        Centre, Kolaba, Mumbai. 
        L.R. Of R.No.4.




                                              
        Smt. Damyantibai Madhusudanlal Pittie,
        29-B, Dongerisi Road 
        Malabar Hill, Mumbai 400006. 

     4.(Shri Dadhusudanlal N.  Pittie




                                 
        (H.U.F), "Suket", 29-B, Dongerisi Road 
        Malabar Hill, Bombay 400006). 
                  
     5.Shri Madhavlal N.  Pittie
        (HUF), "Suket", 29-B, Dongersi Road 
                 
        Malabar Hill, Bombay 400 006. 

     6.Shri Madhavlal N.  Pittie
        (IND), "Suket", 29-B, Dongersi Road 
      

        Malabar Hill, Bombay 400006. 
   



     7.Smt. Sulochana M.  Pittie
        "Suket", 29-B, Dongersi Road 
        Malabar Hill, Bombay 400006. 





     8.Shri Vivek Madhavlal  Pittie
        "Suket", 29-B, Dongersi Road 
        Malabar Hill, Bombay 400006.                    ....RESPONDENTS 





                             --------------------------
                     Mr.  C.N. Korde, Senior Advocate 
              with  Mrs. Pangarkar, Advocate for Landowners.
               Mr. J.J. Chandurkar, Advocate  for legal heirs 
                of deceased Madhusudanlal in both Appeals.
          Mr. R.B. Deo, Special Counsel with Shri  Ambarish Joshi, 
                               A.G.P. for State.
                              -----------------------




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                                   5




                                                                             
                               CORAM :  B. P. DHARMADHIKARI




                                                     
                                            AND A.P.BHANGALE, JJ.
     Date of reserving the Judgment. -                    02.09.2011
     Date of Pronouncement.          -                    28.09.2011

                   




                                       
     JUDGMENT.    (Per B.P. Dharmadhikari, J)
                        

1. Judgment dated 31/12/1999 delivered by Joint Civil

Judge, Senior Division, Amravati in Reference proceedings land

acquisition case 13 of 1988 under Section 18 of the Land

Acquisition Act,1894 (hereinafter referred to as “the 1894 Act” for

short), is assailed by both parties i.e., the landowners as also

acquiring authority in these appeals under Section 54 thereof. Said

reference arose out of award dated 16/7/1987 in L.A.C. 3/LAQ-

47/83/84 made by the Land Acquisition Officer for and on behalf

State of Maharashtra. Notification under Section 4 of the 1894 Act

was published on 19/2/1984. While admitting First Appeal No.

53/2001 filed by State, this Court on 12/2/2001 granted stay in

terms of prayer clause (I) of Civil Application No.656/2001 on

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6

appellant- State depositing decreed amount with Trial Court within

period of 8 weeks. That order continues to operate even today.

2. Civil Application (F) No. 2282/2011 is taken out by

landowners pointing out death of appellant no.4 on 4th August 2011

and seeking leave to amend as per its schedule to bring his legal heir

on record. State government is also asked to effect similar

amendment in its First Appeal No. 53/2001, though no formal

application is as yet moved by it. Shri J.J. Chandurkar, learned

Counsel for said legal heir viz. Smt. Damyanti states that he is

appearing for her in both the matters. State Government has without

prejudice to its rights to verify the position, sought oral leave to

substitute similarly. Accordingly, We permit respective Appellants to

amend their respective memo of appeals forthwith.

3. Plot no. 1 Nazul Survey no. 14 of Amravati town formed

subject matter of acquisition. The area as per last notification under

Section 17 (1) dated 18/7/1985 is 54,168.86 Sq. Mtrs. and

landowners claim it to be 60790 Sq. Mtrs. The award granted them

compensation of Rs. 34,67,030/- towards land, structures, trees and

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7

statutory benefits. Trial Court or Reference Court found area

acquired to be 59,870 Sq. Mtrs. as per report if Court Commissioner.

By following hypothetical plotting method and using comparable

sale instances, it arrived at rate of Rs. 19.50 per sq. ft. for belt-1

plots, Rs. 16.50 per sq. ft. for belt-2 plots and Rs. 13.70 per sq. ft.

for belt-3 plots. Total amount for all three belts thus worked out by

it was Rs. 74,06,128/-. It then followed judgment of Hon’ble Apex

Court reported at AIR 1998 SC 700 (Hasanali Walimchand vs. State

of Maharashtra) to deduct 50% towards developments and found Rs.

37,03,064/- as value of acquired land. It also found them entitled to

Rs. 17,57,521/- towards costs of structures on acquired land,

Rs.22,120/-as value of barbed wire fencing and Rs. 2990/- as value

of trees. Out of this Rs. 54,85,895/- as sum of Rs. 20,30,116/- was

already received by landowners, it granted them balance amount of

Rs. 34,55,779/-. The premises were being used by State for office of

Divisional Commissioner, Amravati since 1/1/1981 and on

6/8/1985 possession was taken by it after invoking urgency clause.

Trial Court therefore granted them compensation under Section

23(1-A) of the 1894 Act, from 1/1/1981 till 16/7/1987 i.e., date of

award calculated at 12% P.A., on the market value (Rs.14,77,740/-)

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8

of big bungalow. Said sum given by it is Rs. 11,52,637/-. It granted

them compensation at 12% PA under Section 23(1-A) on other

property from 6/8/1985 till 16/7/1987 at Rs. 9,21,877/-. It thus

awarded to them total sum of Rs. 75,60,409/-. It deducted from this

total, a sum of Rs. 20,30,116/- already awarded by land acquisition

officer and declared landowners entitled to receive Rs. 55,30,293/-

more with 30% solatium on it under Section 23(2), interest on

balance costs and solatium at 9% on it from 16/7/1987 to

15/7/1988 and at 15% thereafter as per Section 28/34 of the 1894

Act. Before us there is no dispute that direction to pay solatium on

Section 23(1-A) grant is unsustainable.

4. Shri Korde, learned Senior Counsel for landowners has

strongly relied upon the appointment of district inspector of land

records as court commissioner to find out exact area of land

acquired to show that land in excess not covered under area in

award under Section 11 is also found acquired and hence, grant of

compensation by LAO is incorrect. He further argues that

landowners and LAO have both resorted to hypothetical plotting

method to determine compensation but then Trial Court has for

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9

valid reasons held report/lay-out drawn by landowners expert Shri

Gandhi at Ex. 195 more reliable. In this view of matter, it could not

have discarded the belting scheme used by Shri Gandhi and

substituted it by its own estimate. The placement of acquired land,

its more altitude and therefore superior position in market as

compared to adjacent lands is all narrated in detail by Shri Gandhi

and Trial Court overlooked it for no valid reason. Layout of Sant

Sadguru Sitaram Maharaj Sansthan (SMS layout) Public Trust in

plot no. 2 along with other plots in the vicinity have been used by

Shri Gandhi as measure to determine the market value. The

placement of said land is much better than adjacent plot no. 2 where

a layout has come up in 1982/1983 and sales of plots from that

layout are treated as comparable by Trial Court. Shri Gandhi

therefore made 25% allowance over and above price fetched by

plots in that layout and Trial Court could not have ignored it.

Similarly, the layout in plot no. 1(acquired land) has got frontage on

public roads on three sides and hence belting of all such plots in

layout with said benefit in first belt by him could not have been

faulted with. Deductions ordered by it are at variance with report of

said expert and when evidence on record proved need of no such

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10

expenditure here, the Trial court could not have invoked the thumb

rule. In any case, looking to instances of or nature/extent of

development in adjacent layouts, deductions of 50% from land price

determined is exorbitant and arbitrary. He also places strong

reliance on evidence of Shri Ganeriwal the managing trustee of SMS

Trust. The distance between plots in that layout and in proposed

plots in acquired land is only 400 meters. Shri Gandhi has worked

out market price of plots in acquired land after calculating the

annual escalation, made allowance for valid reasons and assigned

grounds for no development expenditure. He has not been subjected

to any cross-examination in this regard and hence, Trial Court erred

in not acting upon that evaluation. He points out that Shri Gandhi

has already deducted about 25% of land-area for development

activities like roads, garden etc. Hence, further deductions of 50%

flat again by Trial Court is not supported by records and

unwarranted. According to learned Senior Counsel landowners have

suffered total deductions of 75% thereby. Shri Gandhi’s layout held

as better by Trial Court needed to be acted upon by maintaining

belting exercise therein as it is. His reasons for not making any

adjustment towards deferment factor also needed acceptance. Plans

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11

of Shri Gandhi and other plans on record are relied upon to show

relative placement and to justify treatment thereto for valuation.

Plots 53 to 63 placed behind first row must be treated as in 2 nd belt.

It is urged that plots shown in yellow and on Chilamshah wali road

must be valued at rate between 1st belt rate and 2nd belt rate.

5. Learned Senior Counsel then pointed out how the expert

has applied a well known method of “sinking fund” and used CSR

rates by adding 25% to it to match the type of construction available

while working out its cost. The scientific method adopted by him

have not been doubted in cross by the State. It is further contended

that evidence of Shri Deshmukh, LAO is biased and hence, not

acceptable. Similarly, though other witness Shri Kale accepted that

structures may have future life of 30 to 40 years, he in calculations

adopted it to be 7 years only. His evidence is also urged to be biased

and his failure to support his computation in Court despite grant of

adjournments is pressed into service to discard it. Comparative chart

prepared to show at glance the working of costs of structures by

following sinking fund method (used by Shri Gandhi) and constant%

method (used by State’s witness Shri Kale) to age and future life (30

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12

years) of respective structures mostly due to Kale’s evidence that

future life was of about 30 to 40 years is also pressed into service.

6. He has placed reliance upon various judgments of

Hon’ble Apex Court to substantiate his contentions and to

demonstrate how the Trial Court has misdirected its exercise. (2011)

6 SCC 47 – (Trishala Jain and another vs. State Of Uttarchal and

another) is relied upon to explain the principles of guesstimate.

(2009) 15 SCC 769 (Lal Chand vs. Union of India and another) is

shown to justify need of proper deduction for development costs and

its extent. (2010) 1 SCC 444 – (Subh Ram and Others vs. State of

Haryana and another) is cited to urge that 40% deduction is ideal in

such matters. He invited attention to impugned judgment in an

attempt to demonstrate those errors. He fairly stated that though

damages awarded for period from 1/1/1981 till 19/2/1984 under

Section 23(1-A) of the 1894 Act are unsustainable, he supported

grant by pointing out the views expressed relief given by Hon’ble 3

Judges of Apex Court (2004) 4 SCC 79 (R.L. Jain vs. DDA and

others), even for such loss of possession and need to award rental

compensation in such facts. The Reference Court should have

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13

granted damages in lieu of rent lost and interest at the bank rate

upon the sum of damages. Similar view reached in (2003) 7 SCC

448 (para 3 and 9) (State of Maharashtra and others vs. Maimuma

Banu and others) is also shown. (2005) 12 SCC 443–(para 8 ) (Land

Acquisition Officer and Asst. Commissioner vs. Hemanagouda and

another) is also pressed into service and it is contended that as all

relevant material is available, remand for that purpose is not

necessary. How this Court has granted interest for period and

possession prior to Section 4 notification is brought to our notice

through 2009 (1) Mah.L.J. 299 (para 5) (State Of Maharashtra vs.

Bhaskar Namdeo Wagh). Reliance is being placed on ground no. 38

in memo of appeal to argue that rental compensation at 12% needed

to be calculated on Rs. 16,82,614/-without any deductions. He has

added that if land sufficient to support the big bungalow is worked

out by using FSI/FAR to be “1”, the proportionate land needed is

21,795 Sq. ft. and in that eventuality, 12% of Rs. 15,97,651/- is to

be awarded as rental compensation. In any case, grant of

compensation at 12% is reasonable and as premises were being used

for non-residential purposes, a higher rate is warranted. He also

states that 12% additional component also should have been given

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14

on remaining property for the period from 19/2/1984 to 6/8/1985.

7. Shri Rohit Deo, learned Special Counsel has pointed out

that entire area of plot no. 1 as per old property card has been

acquired and landowners have failed to demonstrate their title to

anything in excess of area in notification under Section 17 (1) dated

18/7/1985 i.e., 54,168.86 Sq. Mtrs. Landowners claimed it to be

60790 Sq. Mtrs. and Trial Court or Reference Court found area

acquired to be 59,870 Sq. Mtrs. as per report if Court Commissioner.

He argues that plot area recorded in property register i.e., settlement

records way back in 1925 ought to have been accepted. Property

cards at Exh. 247/248 reveal 54,000 Sq. Mtrs. area. The landowners

had/have with them the original sale-deed which could have shown

their entitlement to receive compensation for said area. As sale-deed

is not produced,an adverse inference is/was warranted. Though the

report Exh.24 of DILR appointed as Court Commissioner was not

objected by State, that report does not establish title of Landowners

to 59,870 Sq. Mtrs.

8. He pleads that there was no question of giving any rental

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15

compensation for period prior to Section 4 notification under the

1894 Act. The rental compensation for period from 1/1/1984 till

Section 4 notification on 19/2/1984 is not payable in any

proceedings under the 1894 Act. Judgment of Hon’ble Apex Court

in R.L. Jain vs. DDA and Others (supra), does not lay down any law

on these lines. Observations of Hon’ble Apex Court are under Article

142 of Constitution of India. According to him reference to Section

48 of the 1894 Act therein shows that dispossession therein was

traceable to that Act. Other judgments relied upon by the

landowners also show same features. By placing reliance upon

(2002) 1 SCC 142 (para 7) (Siddappa Vasappa Kauri vs. Special Land

Acquisition Officer), he points out that no compensation is payable

for period prior to issuance of Section 4 notification and Section

23(1-A) is held to be unambiguous in this respect. He points out that

here possession was never with Landowners and premises were

allotted under C.P. and Berar Rent Control Order,1949 to State for

office of Divisional Commissioner and accordingly establishment of

Divisional Commissioner entered possession on 1/1/1981 and

continued till 6/8/1985 when it was taken under the 1894 Act. In

1981, the acquisition was not even in contemplation. For that

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16

possession, fair rent or standard rent could have been claimed before

appropriate forum and not in these proceedings. Quashing or setting

aside or cancellation of that allotment by High Court does not

render it a possession pursuant to the 1894 Act.

9. Coming down heavily on evidence/report of Shri Gandhi,

he points out that being a paid expert, his evidence is not impartial.

It also lacks relevant material which might have formed its base and

as that material is not produced for perusal, his opinion can not be

appreciated by this Court. Section 45 of Evidence Act is pressed into

service. The report refers to experience of Shri Gandhi as ground

but that experience and knowledge is not proved on record and

hence, Shri Gandhi can not be relied upon as an expert. As area

considered by him in his report/layout at Ex. 195 is itself drastically

reduced, his layout is rendered irrelevant. Layout looked into by

State is based upon accurate area and hence Trial Court ought to

have been accepted it as base for calculations. In alternative, he

urged that area of layout of Shri Gandhi acted upon by Trial Court

needs to be scaled down proportionately and used as base but

subject to other arguments about market rate, deferred value

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adjustment, development costs etc.

10. It is pointed out that earlier two reports of said expert at

Exh. 204 dated 17/1/1985 and Exh. 205 dated 24th October,1985

reveal inconsistent and contrary position which is sufficient to

impeach his credit and to ignore his report Exh. 195. Due to

absence of title, Shri Gandhi has claimed flat Rate of Rs. 15 per Sq.

feet for excess land. Comparison of these reports is done to show

change in approach to favour his clients viz. Landowners. Last report

Ex. 195 is prepared just 3 to 4 months prior to his deposition by Shri

Gandhi. It is urged that obvious effort is to cure material defect and

to adjust development charges. It is nothing but like an information

booklet or brochure prepared at the instance of a builder to lure

customers. He relies upon (1995) 2 SCC 305–( para 15,16) (P. Ram

Reddy and Others vs. Land Acquisition Officer, Hyderabad Development

Authority) to contend that even if it is presumed (without admitting

it) that there is ineffective cross-examination, still the law courts are

obliged to test probabilities and such improved version can not be

mechanically used. In AIR 1952 SC 214 (para 22) (Bhagwan Singh

vs. State of Punjab(I)) Hon’ble Apex Court shows how the Court has

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to compare the later statements of Shri Gandhi with his earlier

admitted reports when all these mutually inconsistent

reports/statements are admitted and available on record. Exh. 195,

therefore must be rejected. Credit of such witness bringing on

record all these 3 reports is impeached under Section 155(3) of

Evidence Act. Trial Court has erred in acting upon deposition of such

witness. Want of material on record to sustain findings of expert is

found in 1996(3)All MR 507 (para 17) (Government of Goa vs.

Jagannath V. Khalap) enough by this Court to lower him to a

partisan witness. Thus , according to him the Government valuer has

been erroneously rejected as data or calculations of costs is not

produced and as he accepted Shri Gandhi’s method of calculating

depreciation. This observation is urged to be erroneous as there is

no such acceptance or then conditions subject to which he accepted

that method, are overlooked by Trial Court. Shri Kale has not been

effectively cross-examined and his assertions are not even

questioned. Only because off-hand he could not undertake or

explain the cost-exercise undertaken, he could not have been

disbelieved. Even if life of structures is presumed to be 99 to 100

years, depreciation rate would be 1 instead of 1.33 and it does not

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make material difference on total compensation payable in that

regard.

11. In this background, he takes up the issue of land

valuation. He states that because of layout on adjacent plot no. 2 of

SMS Trust, the comparable sale instances are readily available. Due

to proximity, both in time and location, Trial Court has rightly found

it proper to rely on it. The consistent views of Hon’ble Apex Court in

such situation permit escalation of 10% every year from date of sale

deed till date of Section 4 notification. As alleged expert Shri

Gandhi of Landowners has here granted it at compound rate of 25%

annually, that too from the date of agreement for sale, the Trial

Court has rightly rejected it. Judgment of this Court reported at

2008(3) All MR 379 (para-7 and 8) (State Of Maharashtra vs. Punja

Trambak Lahamage) is relied upon to contend that date of actual

transfer of title ie sale-deed is only decisive. Shri Gandhi could not

have made allowance of 25% over the sale-deeds in SMS layout

because of alleged superiority of plot 1 and when Landowners have

sought to discredit State witness Shri Deshmukh’s stand that SMS

layout is located near city, same logic must hold good to deny such

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allowance. Evidence of Shri Deshmukh is not false and as he was

LAO, he proved to be little obstinate about his award and

calculations. He points out that law has always recognized as special

the plots on highways and in 1984-85, Chilamshah Wali Road was a

“Kuchha Road”. Hence, Trial Court has rightly refused to accept

plots on this kuchha road as in belt-1. He also states that 30%

solatium can not be awarded on 12% component under Section

23(1-A). Subh Ram and Others vs. State of Haryana and

another( supra) (paras 9,11,12 to 14, 24 and 32) as also Lal Chand

vs. Union of India and another (supra) (paras 15 and 17) are pressed

into service to buttress contention that 50% to 75% is the standard

range of deductions in such cases.

12. In reply arguments, Shri Korde, learned Senior Counsel

has contended lands received in possession by State from

Landowners has to be decisive in the matter of computation of area

relevant for determination of compensation. Emphasis of notification

declaring intention to acquire is on entire plot no. 1 and its area is

therefore secondary. Even plan prepared by Mr. Watkar for State

Government is relied upon with argument that there is only

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mathematical error in calculation due to irregular area of plot no. 1.

It is urged that if State is happy with acquisition of notified area,

balance land over and above it must be left intact on spot in

possession of Landowners. If this can not be done, they must receive

compensation for entire area as per report of Court Commissioner.

When Shri Deshmukh for State has accepted acquisition of whole

plot no. 1, the dispute about correctness or otherwise of area

recorded in revenue/property cards is irrelevant. He further points

out that title of Landowners to said plot is not in dispute at all.

While making award under Section 11, Collector/State has to

declare true area of acquired land and it is subject to adjudication

under Section 18 thereof. Landowners prayed appointment of

commissioner to resolve this dispute on 7/5/1991 and vide order

passed below Exh. 21, Trial Court granted it. This order was not

assailed by the State. Thereafter, spot was surveyed on 2nd to 4th

March, 1993 and report came to be filed on 8/7/1993. Trial Court

fixed the case on 12/8/1993 for raising objection and then it was

adjourned to 4/9/1993. As no body raised any objection to it, matter

proceeded further to the stage of “issues”. Even otherwise no error

or prejudice is pointed out by the State and State can not take land

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for free. Earlier survey by Shri Watkar on 18-20 February, 1984 was

behind the back of Landowners and with undue haste. Evidence of

Shri Deshmukh is relied upon in support.

13. Learned Senior Counsel states that report of expert Shri

Gandhi just before recording his evidence is in lieu of a detailed

examination in chief to save time and labour. He has been subjected

to cross-examination to the extent necessary by State. His earlier

reports Exh. 204 and 205 were for use of LAO and Exh. 205 is

corrigendum to Ex. 204. Why there is slight change in mode and

manner of computation of development charges is fully explained

by him in Ex. 195. Hence, in this background, effort made by Shri

Deo, learned Counsel to doubt his veracity for the first time before

this Court needs no cognizance. Had he been put these contentions

in cross before the Trial Court, appropriate justification could have

come on record. Though Shri Korde, learned Senior Counsel stated

that he would not like to be too technical in this respect as

Ex.204/205 available in writing were not put to Shri Gandhi, still,

principles of natural justice prohibit such condemnation of witness.

He points out that Shri Gandhi has not scaled down expenditure on

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development to make room for provision of developer’s profits. AIR

1988 SC 1652 (para 4) (Chimanlal Hargovinddas vs. Special Land

Acquisition Officer,Poona and another) is pressed into service to

substantiate these contentions. It is contended that judgment in case

of State Of Maharashtra vs. Punja Trambak Lahamage (supra) (para

7) cannot be construed as laying down a blanket proposition that in

all facts, date of agreement needs to be ignored. It is urged that

responsible judicial officer like joint charity commissioner

functioning under the Bombay Public Trust Act,1950 has ascertained

market value on the relevant date on which SMS Trust invited offers

and then sanction to sell under Section 36 thereof has been

accorded. Judgment of learned Single Judge of this Court in

Arunodaya Prefab vs. M.D. Kambli ( Misc. Petition nos. 415 and 485

of 1974 decided on 17/11/1978 at Bombay) -[para 22], is pressed

into service for said purpose. A separate note explaining calculation

error due to mistake in finding out time-lag between sell-agreements

in SMS layout and 19/2/1984 is also placed on record. Attention is

invited to sale instances on record to demonstrate that annual hike

of 25% by Shri Gandhi is not erroneous or perverse. Chart Annex. G

with Exh. 195 is relied upon. It is urged that material not available

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in 1985 has been utilized while preparing report at Exh. 195 and as

such, no fault has been shown in it. Depreciation of structures is

argued to be a subjective factor and a prospective buyer is bound to

evaluate utility of strong structure still standing on plot no. 1. It is

urged that such technical concepts can not be used in present facts

when witness for State has himself disclosed future life to be 40

years. Hence, charts prepared later by Landowners and submitted to

this Court must be accepted to find out correct valuation of

structures. At the end of his arguments, learned Counsel on

2/9/2011 stated that there is no annual compounding by Shri

Gandhi at 25% and his earlier statements on these lines need to be

ignored.

14. Shri Deo, learned counsel again attempted to

demonstrate that Shri Gandhi has not given any explanation for

bringing down drastically the development charges in Ex. 195. In

Exh. 204, salable area of plot 1 considered is 4,98,100 Sq. Mtrs. with

Rs. 77,50,767/- as its value. In Exh. 195, said area comes down to

4,80,522 Sq. Mtrs. while its price rises to Rs. 91,78,480/-. He points

out that Settlement Map of 1927 itself shows area of plot no. 1 as

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acquired and the Landowners have made no efforts to correct it.

Even to establish possession on such excess land, except for report of

Court Commissioner at Ex. 24, there is no other material on record.

15. Briefly stated, the following are the points in dispute

between parties:–

A)
igFor what area, the Landowners are entitled to claim
compensation?

Answer- -For 54,168. 86 Sq. Mtrs.

B) Are they entitled to claim rental compensation or
damages for period prior to Section 4 notification

i.e., from 1/1/1981 till 19/2/1984?

Answer– No.
C) At what rate compensation for land needs to be
granted?

Answer– Rs. 4311991/-

D) At what rate compensation for big bungalow and
second bungalow needs to be granted?

Answer– Rs. 5,28,000/-.

           E)          Relief/Order:-   See   below   for   details.   Appeal   of  
                       Landowners   is   dismissed   and     Appeal   of   State  
                       Government is partly allowed.




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16. As to Point No. A :- In AIR 2004 S.C.3491-(Meher Rusi

Dalal v. Union of India), Hon’ble Apex Court holds that State

Government need not acquire its own interest in land. Following

observations are important here.

“15. In our view, the High Court has clearly

erred in setting aside the order of the Special
Land Acquisition Officer declining a reference. It

is settled law that in land acquisition proceedings
the Government cannot and does not acquire its

own interest. The interest which is acquired in
land acquisition proceedings are interest of 3rd
parties. This Court has as far back as in 1955, in

the case of the Collector of Bombay v.

Nusserwanji Rattanji Mistri and others, reported
in (1955) 1 SCR 1311 negatived a contention

that when land is acquired valuation is made of
all interest thereon including the interest of the
Government. This Court held as follows :
“We are unable to accept his —- —- ——- — – – –

……. …….. ……. ————— …… —————
but only for the acquisition of such interests in
the land as do not already belong to the
Government.”

With these observations, we are in entire

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agreement. When Government possesses an

interest in land which is the subject of acquisition

under the Act, that interest is itself outside such
acquisition, because there can be no question of
Government acquiring what is its own. An

investigation into the nature and value of that
interest will no doubt be necessary for
determining the compensation payable for the

interest outstanding in the claimants, but that

would not make it the subject of acquisition. The
language of Section 8 of Act No. VI of 1857 also

supports this construction. Under that section,
the lands vest in the Government “free from all
other estates, rights, titles and interests,” which

must clearly mean other than those possessed by

the Government. It is on this understanding of
the section that the award, Exhibit P, is framed.
The scheme of it is that the interests of the

occupants are ascertained and valued, and the
Government is directed to pay the compensation
fixed for them. There is no valuation of the right

of the Government to levy assessment on the
lands, and there is no award of compensation
therefor.”

Here, the Landowners have not shown their title to alleged excess

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land lying on spot and have also not taken pains to plead or prove

any other interest or even legal possession. There is no effort even to

seek compensation for any such or other interest. The report of

DILR ie Court Commissioner does not show title of Landowners to

this excess land. It is apparent that when the property card did not

contain entire area lying on spot, Landowners ought to have brought

on record their title to it by producing sale deed by which they

purchased plot no. 1 in 1930. The settled possession or any right

flowing therefrom are not the facets which even find mention. In

absence of such an effort, it is obvious that contention that there is

only mathematical error and even plan prepared by Mr. Watkar for

department shows area in excess of what is recorded in property

card does not require more consideration. The Trial Court has

erroneously found the acquired area to be 59,870 Sq. Mtrs. or

6,44,440 Sq. feet. There is no material on record to demonstrate title

of Landowners to more than 54,168.86 Sq. Mtrs. of area. Hence,

they can claim compensation only for 54,168. 86 Sq. Mtrs. of land.

Point no. A above is answered accordingly.

17. As to Point No. B :- Compensation claimed as analogous

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to rental compensation for period from 1/1/1981 till 19/2/1984 is

the next dispute. Section 4 notification is published on 19.02.1984

and possession is taken on 06.08.1985. Perusal of judgment

reported in the case of R.L. Jain .vrs. D.D.A and others (supra),

relied upon by Shri Korde, learned Senior Counsel in this respect,

shows consideration of question whether State Government taking

possession before issuance of notification under Section 4[1] of the

Land Acquisition Act and of entitlement of landowners to claim

interest for such anterior period, in accordance with Section 34 of

the Act. This judgment is by Hon’ble Larger Bench and in

paragraph no.11, it has been observed that notification under

Section 4[1] of the Act is sine qua non for any proceedings under the

Act. In paragraph no.12, the words “such compensation” and “so

taking possession” used in Section 34 are interpreted. The words

“so taking possession” are found to make reference to Section 16 or

Section 17 and it has been concluded that if possession is taken prior

to issuance of notification under Section 4[1] of the Act, it cannot be

in accordance with Section 16 or Section 17, will be without any law

and consequently, cannot be recognized for the purposes of Act.

The words “from the date on which he took possession of land”

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appearing in Section 28 of the Act are also construed to mean

lawfully taking of possession under Section 16 of Section 17 of the

Act. The judgment reported at 1991 (1) SCC 262 (Shree Vijay

Cotton and Oil Mills Ltd. .vrs. State of Gujarat), is found not an

authority for proposition that where possession is taken before

issuance of notification under Section 4[1] of the Act, interest on

compensation amount can be awarded in accordance with Section

34 of the Act w.e.f. the date of taking possession. In paragraph

no.16, the earlier judgment reported at 1995 [2] SCC 142 (Special

Tahsildar (LA) .vrs. M.A. Jabbar), delivered by Hon’ble two Judges is

noted and in that judgment the Hon’ble Two Judges held that

claimant would not be entitled to such additional sum for period

anterior to publication of notification issued under Section 4[1] of

the Act. Then reference is made to other judgment by Hon’ble Two

Judges reported at 1995 [6] SCC 355 (Assistant Commissioner, Gadag

Sub Division, Gadag .vrs. Mathapathi Basavannewwa and others),

taking a contrary view and holding owner entitled to additional

amount at 12% p.a., has also been noted. The view taken in Special

Tahsildar (supra), is declared to be legally correct and view in case

of Assistant Commissioner (supra), is overruled. The judgment of

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larger Bench of Hon’ble Apex Court in the case of Sidappa Vasappa

Kauri .vrs. Special Land Acquisition Officer (supra), has also found the

view taken in the case of Assistant Commissioner (supra),

unsustainable. In paragraph no.16 of R.L. Jain vs. DDA and Others

(supra), the Larger Bench has found it just and equitable that

Collector, determines rate or damages for use of property to which

the landowner is entitled while determining the compensation

amount payable to land owners in respect of possession taken prior

to issuance of preliminary notification. The said view is held to find

support in Section 48 of the Act, and it has been further observed

that for delayed payment of such amount for pre-notification

possession, interest at bank rate should be awarded.

18. In Land Acquisition Officer and Asstt. Commissioner .vrs.

Hemanagouda and another( supra), the Hon’ble Two Judges of

Hon’ble Apex Court did not find it appropriate to deprive the

landowners of their right to receive rent or damages for use of

property prior to the date of acquisition. The landowners were

given liberty to raise claim therefor before the Collector. In State of

Maharashtra and others .vrs. Maimuna Banu and others (supra), the

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Hon’ble Two Judges have considered the grievance of similar placed

landowners. Possession was taken by private negotiations. Facts

mentioned in paragraph no.3 show that there non-payment of rental

compensation within time prescription indicated in the resolution

amounted to deprivation of valuable property and in paragraph no.8

it is noted that the Act does not provide for payment of any rental

compensation. In paragraph no.9 it was found illogical and

improper to turn a nelson’s eye to the factual position and the

Hon’ble Apex Court noted that in most of the cases, rental

compensation was not paid. In State Of Maharashtra vs. Bhaskar

Namdeo Wagh (supra), the Division Bench of this Court has found

claimants entitled to 12% component under Section 23[1-A] of the

Land Acquisition Act from the date of notification till the award is

passed by the Land Acquisition Officer. There also possession was

taken before issuance of notification under Section 4 of the Act.

There after noticing the judgment of Hon’ble Apex Court in case of

Special Tahsildar (supra), the Division Bench has granted 12%

component from the date of Section 4 notification i.e. from

10.07.1993 till the date of award i.e. 12.09.1995.

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19. In present facts, admittedly the possession was already

with the office of the Commissioner and that possession was taken

under C.P. and Berar House Rent Control Order, as premises were

allotted to said office by Rent Controller. It is no doubt true that

subsequently said allotment is set aside by this Court, but that is

after 06.08.1985. In the meanwhile, notification under Section 4

was published on 19.02.1984 and possession thereafter was taken

by invoking the urgency clause under Section 17 of the Land

Acquisition Act on 06.08.1985. It appears that second bungalow on

plot 1 was in possession of some third person and State took its

possession from him. The Trial Court therefore, has correctly

granted 12% component under Section 23[1-A] of the Act, from the

date of Section 4 notification till taking of possession i.e.

06.08.1985. Possession delivered earlier on 1/1/1981 was under

provisions of C.P. and Berar House Rent Control Order, 1949 and

therefore, as a tenant. That possession was not taken in pursuance

of any decision to acquire the said property. In this situation, claim

by landowners has to be either for rent for said period from a tenant

or then for mesne profits for wrongful dispossession. It cannot form

subject matter of adjudication by Land Acquisition Officer under the

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scheme of Land Acquisition Act. In all precedents looked into above

the taking of possession could have been related to Act and person

taking possession were not having any other character like that of

tenant. The judgments looked into above, clearly show that

entitlement to such amount can be only when possession is taken by

initiation of land acquisition proceedings i.e. after Section 4

notification. Division Bench of this Court in one matter has refused

to interfere as period was only of one month, however, that

judgment reported in the case of State Of Maharashtra vs. Bhaskar

Namdeo Wagh (supra), does not law down any law in this respect.

We, therefore, find claim for compensation for period from

01.01.1984 till 19.02.1984 in present proceedings misconceived.

Point No. B is answered accordingly.

20. As to Point No. C :- Next important question is about

market value of land on 19/2/1984.Both sides have adopted

hypothetical plotting method and hence, the procedure to be

followed here is not in doubt. Actual Layout in Plot no. 2 of SMS

Trust is admitted position and during arguments sale instances

therein only have been relied on as comparable. Before proceeding

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further, We find it appropriate to briefly mention the location of

Plot. no. 1 as also plot no. 2. Plot no. 1 is bounded on its south by

plot no. 2 and it has got abut 5 sides. Its 3 sides have direct frontage

on roads i.e., Mini bye pass, Chilam Shah Wali Road and a cross

road connecting these two roads. Though there is serious challenge

to reading of evidence of Shri Gandhi- witness of Landowners as

expert or then to his testimony on merits, plan drawn by him

showing the relative placement of these two plots and location of

sale instances looked into by him is not in dispute. Trial Court has

considered this angle and only challenge before us by Landowners

is to its not accepting 10% hike to plots in hypothetical layout in

plot no. 1 or to alleged superior placement of plot 1 due to it

altitude and commanding scene. Trial Court has treated sales in

SMS layout as comparable and there is no serious dispute about it.

Last report at Exh. 195 prepared by Shri Gandhi about 3 months

prior to his entering the witness box reveals that total road frontage

is 2200 running feet and out of it 1000 feet is on Calcutta -Bombay

part of mini bye-pass – part of national high-way. This plot is

situated in Camp-area which is classified as “A” area in Amravati

Municipal Corporation formed later. Residences of District Judge,

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Commissioner, Collector and bungalows for other judges are in the

vicinity in this area only across either the national high way or then

Chilam Shah Wali Road. Bungalows of retired army officers are on

west side. Being a corner plot, it has roads on three sides and being

a level plateau at top of Camp area, enjoys westerly breeze,

panoramic view and beautiful surroundings. Eastern view from

plateau remains permanently unobstructed. Offices of R.T.O.,

Collector, Sub-registrar, Post and Telegraph, Zilla Parishad, P.W.D.,

Town Planning are all within half kilometer. Court, Educational

Institutes including Medical College and District Hospital are within

1 to 2.5 Kms. Some shops are stated to be located near this plot and

main market is at distance of 2.5 Kms. This description shows that

except for its location at height, all other features are normal. It

appears to be not in populated but in calm and quiet surroundings.

What is market available for small such plots or land of this nature

in Amravati is not apparent. Evidence to show price offered by a

willing buyer and tendency to pay more by recognizing these

features as special advantages was therefore essential for treating it

as a feature necessitating any premium over and above market rate.

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21. The land to be valued here is huge piece and use of

hypothetical plotting method found necessary in paragraph 19 is not

in dispute. Though before the Trial Court several witnesses were

examined to bring on record the relevant sales, in arguments before

us the acceptance of sale instances from SMS layout by it is not even

assailed by any body. Arguments proceed on the base of those sale

instances only. Narration in this regard in paragraph 24 of its

judgment by it is not even whispered to be perverse. Thus its refusal

to look into sale -deeds at Exh. Nos. 171,171-A,177,177-A,172,

173,180 and 175 as the same are of plots located at a distance from

acquired land, does not call for any interference. In said paragraph

and in next one it has noticed that sale instances from just adjacent

plot no. 2 of SMS Layout are available and preferred to rely upon it.

However, Trial Court has used layout prepared by Shri Gandhi and

at Annex. D with his report Exh. 195 and discarded the layout plan

prepared by A.D.T.P. At Exh. 232. Shri Gandhi’s status is challenged

before us on several grounds, it is apparent that about 5782 Sq.

Mtrs. Area is required to be reduced from his drawing. Reason

assigned by Trial Court to prefer it is of better land utilization. This

is not demonstrated to be erroneous by the State. It therefore urged

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to reduce the land proportionately from area of each belt as arrived

at by Trial Court. When hypothetical layout prepared for State by

ADTP is found unacceptable for valid reasons and norm has to be

maximum land utilization to cater to the interest of Landowners, We

find it proper to accede to this argument of State.

22. Perusal of deposition of Anandprasad (Exh.75) on behalf

of SMS Trust shows that SMS layout is on comparatively larger piece

of land ad-measuring about 7,60,000 Sq. ft. and little nearer to City.

Plot no. 1 is beyond plot no. 2 and at a height above plot no. 2. Plot

no. 2 is not a plain ground but has a slope towards west. The

difference in elevation on eastern and western side is about 20 feet.

In 1981, SMS layout of 119 residential and 35 shop plots was

approved by Amravati Municipal council. Then Trust advertised the

plots. On 26/11/1981, Joint Charity Commissioner granted approval

to SMS Trust to sell 16 shops and 53 residential plots. Accordingly,

Sale deeds were executed by the Trust. From buyers who paid the

balance sale consideration late and sale deeds were therefore

executed little later, SMS Trust recovered interest for such delay as

per the orders of Joint Charity Commissioner. In response to 2nd

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advertisement published in December,1981, offers were received in

January, 1982. The Trust found these offers below their expectations

and hence, plots were re-advertised. Application of Trust to sell to

these offerers was allowed by the Joint Charity Commissioner on

17/4/1982. This witness has stated that plot no. 1 of Landowners is

superior because of its location. He has also exhibited the sale-deeds

and other documents like advertisement, certified copies of orders

of Joint Charity Commissioner and Index-II. His cross-examination

only brings on record no construction of any shop on any of its 35

plots from 1981 till 1995. His evidence has been recorded on

22/7/1996. Thus his sale instances are supported by relevant

documents which can not be doubted.

23. Whether date of agreements entered into by SMS Trust or

then the date of Sale-deeds by them is determinative is another

dispute. According to Shri Deo, learned Counsel it is date of sale

deed only and date of agreement can never be relevant. In State Of

Maharashtra vs. Punja Trambak Lahamage (supra), where the

Division bench rejected the demand claimants for enhancement for

the period of 6 months between the date of agreement and date of

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sale-deed. It is observed as under :–

“7. Coming to the other aspect, the claim raised on

behalf of the respondents in the State appeals is
that they would be entitled to enhanced
compensation because of the intervening period

between 31st January, 1989 and 4th July, 1989
i.e. the date of the agreement to sell and the date
of registration of the sale deed. This argument is

based on the premise that the parties had agreed

to sell the land ad-measuring 13 ares for
Rs.15,000/- as on the date of agreement to sell i.e.

31st January, 1989 and the sale deed was
registered on 4th July, 1989, being Exhibit-74.
Computed on the basis that the market value of

the land as on January, 1989 is Rs.1,15,385/- per

hectare and the increasing trend in the price of the
land as has been shown by the claimants, the
value of Rs.1,15,385/- should be increased to

determine the market value of the property as on
4-7-1989. This argument on behalf of the
claimants proceeds on a fallacy of fact and law

both. It is a settled rule of law that agreement to
sell does not pass any title in the property.
Agreement to sell is an agreement between the
parties which would culminate into a registered
sale deed only after the obligations of each of the

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parties to the agreement is fulfilled by them. Mere

fact that under the agreement to sell, a time is

given for payment of sale consideration by itself is
no evidence on the fact that the value of the
property will increase in the meanwhile. It is not

even necessary that every agreement to sell results
in execution of a registered sale deed. In simple
words, the agreement to sell neither creates any

title in the property nor is a document by which

transfer of the property takes place between a
willing seller and a willing buyer.”

The Division Bench also considers the judgment of Hon’ble

Apex Court in AIR 2001 S.C. 2532 (State of Haryana v. Ram Singh),

where Hon’ble Apex Court finds the High Court in error in rejecting

Exhibits R/2 and R/3 as inadmissible only on the ground that the

parties to the documents had not been examined by the State. Law

stated is that a certified copy of a registered agreement for sale is

not inadmissible in evidence unless the parties to the document are

examined to prove it. It is pointed out that this does not however

preclude the Court from rejecting the transaction itself as being

malafide or sham provided such a challenge is laid before the Court.

In facts of said case, there was no allegation that the sales

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transactions relied upon did not represent genuine transactions. The

High Court was therefore in held error in refusing to consider the

transactions evidenced therein merely because the parties to the

documents were not examined. Therefore, the matter was remanded

to the High Court to take a decision on the market value of the

acquired land taking into consideration Exhibits R/2 and R/3 unless

the claimants were permitted by the High Court to establish their

inadmissibility.

24.. In AIR 1970 Guj. 91 (Collector, Baroda and another, v.

Haridas Maganlal Parikh and others), the Division Bench was

required to consider whether an agreement of sale was a relevant

and good piece of evidence before the Court for the ascertainment

of the market value of the land comprised thereunder and later on

acquired by the Government. Having noted that an agreement of

sale did not in fact create interest in the property as contemplated

under Section 54 of the Transfer of Property Act, Gujrat High Court

held that on that account alone, it cannot be eliminated from being

considered as a relevant and good piece of evidence if established as

a bonafide transaction between a willing purchaser and a willing

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vendor. It points out decision of the Hon’ble Supreme Court in AIR

1967 SC. 465– (Raghubans Narain Singh v. Uttar Pradesh Govt.),

where even an offer made by a person for the purchase of any

property and though not accepted, was treated to be a relevant piece

of evidence, and if that evidence is accepted as reliable, it can well

serve as a good piece of evidence for determining the market value

on that basis. In that case, the claimant led the evidence of one

Zaidi, a Deputy Collector, prior to his retirement had written two

letters to the claimant dated October 14, 1945 and November 20,

1945 expressing his desire to purchase the land in question. He had

offered Rs. 18,000/-, but that offer was not accepted by the claimant

who wanted Rs. 24,000/- as price. This part of the evidence was

accepted by the District Judge and on that basis he valued the land

at Rs. 18,000/-. In appeal, the High Court at Allahabad took a view

that such evidence could not afford a true test about the value of the

property. The claimant preferred an appeal to the Supreme Court

against that decision and there while dealing with that part of the

evidence about an offer made by witness Zaidi for the purchase of

that property sought to be relied upon, the Supreme Court has

observed that an offer does not come within the category of sales

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and purchases but nonetheless if a person who had made an offer

himself gives evidence such evidence is relevant in that it is evidence

that in his opinion that land was of a certain value. This part of the

evidence was accepted by the Supreme Court and it upheld the view

of the District Judge as against that of the High Court in that case.

Gujrat High Court then finds that :-

” It also appears that an agreement to sell in
respect of any such property would be a relevant

matter and can be used in relation to fixing the
market value of the land. Such an agreement to
sell stands on a stronger and better footing than

what a onesided offer can help in determining the

price of the land under acquisition. The
agreement of sale is a bilateral contract
enforceable in law. The vendor agrees to sell the

property and the purchaser agrees to purchase the
same as per the conditions set out in the
agreement. There is an agreement of price in

respect of the property comprised thereunder.
What remains to be done is to have a deed passed
in respect of the said property as per the terms or
conditions set out in that agreement. In our view,
therefore, such an agreement of sale, apart from

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the same being perfectly a relevant piece of

evidence, can also be a basis for fixing the market

value of the land under acquisition provided of
course it is found to be a bonafide transaction
between a willing or a prudent purchaser and a

willing vendor.”

25. The relevant sale deeds pressed into service to show

escalation are either within few days of agreements or then with gap

of about 6 months. Pawan Agrawal (Exh. 187) has deposed about

two sales of plot no. 30 in SMS layout, first by SMS Trust to Smt.

Meera Agrawal registered on 28/5/1982 as per agreement dated

26/11/1981 and later by Mrs. Meera to Vijay Agrawal on

11/1/1984. These sale deeds are at Exh. 102 and 188. It shows

annual escalation calculated between 26/11/1981 to 11/1/1984 at

23.72%. Here time interval between agreement and actual sale by

SMS is of 6 months and 2 days. Pramod Bathra (Exh. 192) has

spoken of purchase of plot no. 42 in SMS layout on 5/12/1981 as

per agreement dated 26/11/1981 and its sale by him on 23/6/1982

registered on 17/8/1982 to Smt. Usha Malani. These sale-deeds are

at Exhs. 114 and 193. Appreciation here is 34.78% between

26/11/1981 to 23/6/1982. Here time interval between agreement

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and actual sale by SMS is of 9 days. At Exh. 189 is evidence of

Avinash Deshmukh and he deposes about purchase and sale of plot

no. 51. It is purchased from SMS Trust as per agreement dated

26/11/1981 on 17/12/1981 and sold on 19/6/1984 to Govind

Rathod of which deed is registered on 19/6/1984 itself i.e., after

Section 4 notification. Annual appreciation in this case is 31.21%

by looking to period from 26/11/1981 to 19/6/1984. These sale

deeds are at Ex. 123 and 190. Here time interval between

agreement and actual sale by SMS is of 21 days. Looking to this

time gap and facts at hand, it is apparent that the answer to the

question about relevant date either way does not very materially

affect the determination of escalation and market price. Here, the

Joint Charity Commissioner has given sanctions under Section 36 of

Bombay Public Trust Act to SMS Trust on 26/11/1981 and

17/4/1982. As held in Arunodaya Prefab vs. M.D. Kambli – Misc.

Petition 415 and 485 of 1974 decided on 17/11/1978 by learned

Single Judge of this Court, Joint Charity Commissioner has to satisfy

himself about the adequacy of price offered and here these orders

are not in any way dispute. Even sales, whether by SMS Trust to

initial buyers or then by such purchasers from it to subsequently are

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not challenged as sham or bogus transactions. We therefore find that

reliance on the agreement date to compute escalation in present

matter and therefore acceptance of agreements for that purpose

does not violate any legal provisions. In State Of Maharashtra vs.

Punja Trambak Lahamage (supra) (para 7), claimant – landowners

were demanding escalated value between agreement date 31

January 1989 and date of sale deed i.e., 4th July 1989. Thus, their

own document of agreement was being capitalized for said claim

and observations of this Court need to be understood in this

background. This judgment nowhere lays down that even a third

party genuine agreement for sale – a bonafide transaction can not be

a relevant piece of evidence. Value to be given to it is obviously a

question dependent on facts of each case.

26. Except Shri Gandhi other evidence on valuation of land is

of Owner Madhaolal , LAO Shri Deshmukh and no other evidence is

placed before us. Madhaolal has only said that valuation and area

of acquired land is less. He chose to rely upon the report of expert.

In cross, he could not give the year of construction of two buildings

on acquired property. He stated that that there were no documents

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except one on record to support the area of acquired land as claimed

by them. He accepted that distance between land acquired and

Amravati market was about 6 Kms. He had no knowledge whether

said land had non-agricultural potential. He was not aware whether

it formed last corner of town on north-east side. Thus he has not

placed his oath either to give market value of land or then of

structures. Evidence of Shri Gandhi can be looked into little later.

Sale instances of SMS layout are proved by examining the

purchasers also. As there is no dispute about these instances, We are

not referring to that oral evidence here. Exh. 219 is the evidence of

then Sub-divisional Officer and LAO Shri N.K. Deshmukh. He

functioned as such from 1986 to 1988. He got structures valued

through PWD while land through Assistant Director of Town

Planning i.e., ADTP. He also looked into sale instances. He has

deposed that acquired land was on outskirts of Amravati and its last

Nazul sheet. There was no development or any residential locality in

the vicinity. He has also stated that in 1998 also there was no

construction on shopping plots in SMS layout. He has then spoken of

preparation of hypothetical layout, comparison with plots in SMS

layout and recourse to belting method. He has stated that average

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rate of SMS layout was Rs. 90 per Sq. Mtr. and he awarded Rs. 100

for acquired land for first belt, Rs. 85 per Sq. Meter for 2nd belt and

Rs. 72/- for third belt. His cross reveals his reluctance to answer

inconvenient questions. He also accepted that letter for joint

measurement was issued on 18/2/1984 to office of DILR and it was

started on very same day. He agreed that the owners who were at

Bombay therefore had no time to remain present. He further stated

that as sale instances used by him were within one year of Section 4

notification, he did not give 10% annual hike. He did not accept that

purpose of deduction on account of deferment factor was to

compensate developer whose money remained blocked. He stated

that plot no. 2 is slightly nearer to city than plot no. 1. He agreed

that plot no. 1 is at higher level than plot no. 2 but then did not

accept that it was superior. Though this witness has been cross

examined at length and because of his attitude, several questions

were required to noted by Trial Court in question–answer form, We

are not going into details thereof. The contention of learned Senior

Advocate that this witness was biased need no consideration here as

witness was the land acquisition officer himself and was trying to

justify ways and means adopted by him. Those ways and means

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were on record and as Trial Court needed to arrive at market value

independently, said attitude is not decisive either way. We only wish

to note that procedure followed by him to work out average rate of

land in SMS layout is unsustainable. He admits that he has followed

belting method but he considered the mean of rate of first row i.e.,

shopping plots and rate of last row of residential plots in SMS

layout to determine said average and used it for hypothetical layout

in acquired land. Size and number of first belt plots having access

directly to national high-way, location of last belt plots, their

number and distance from national high-way. SMS Layout has

frontage of 579 feet on national high-way where it has laid total 35

shop plots of 30 ft. X 15 ft. Behind this are the rows of plots for

residences. Depth of this layout is 1259 feet. There are total 6 cross

roads and about 5 conservancy lanes till last row. The open space in

layout is at other end of this layout. Thus due to inherent

differences, such average-method used by LAO can not be of any

assistance here.

27. Shri Gandhi in his evidence at Exh. 194. He is graduate in

civil engineering practicing as Architect, Structural Engineer and

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Valuer as claimed for 35 years. He has stated that he is recognized

valuer by finance ministry of Union of India. He has confirmed

contents of report dated 21 August 1995 and it came to be

exhibited as Exh. 195. He has considered area as 59870 Sq. Mtrs. as

disclosed by Court Commissioner. He has then pointed out how

hypothetical layout of ADTP did not provide for maximum land

utilization. He also explained charts with his report and procedure

for valuation undertaken by him. He pointed out comparable sales

and how he added 25% hike annually and gave weightage of 10%

to plots in acquired lands. Then he pointed out decrease of 33%

from price of belt 1 plot for belt 2 and 50% for belt 3 plots. Rs. 25/-

per Sq. foot is rate for first belt plots, Rs. 16.50 for plots in second

belt and Rs. 12.50 per Sq. foot for plots in third belt. These details

are in paras 12.00 to 14.00 of Exh. 195. In said paragraphs, he has

also attempted to justify his figures by using sale instances. He, in

cross examination, has attempted to show how his layout is legal

and absence of need to leave lanes for conservancy. He has also

stated that it is not necessary to provide for common sanitation

system. He also accepted his earlier reports dated 17/1/1985 at Exh.

204 and dated 27/10/1985 at Exh. 205. This working is on the sale

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instances and as already noted above, it is futile to go in more

details of his evidence in this regard as sale instances in SMS layout

only need scrutiny and use in the light of settled legal position.

Proximity in time and area are the tests vital to reach valuation.

28. Trial Court has granted annual hike of 10% after finding

out rate by using comparable sale instances from SMS Layout.

Perusal of various binding precedents in this connection show that

normally such hike is presumed to be 10%. Effort before this Court is

to justify said grant at 25% by Shri Gandhi and Annex. G with his

report at Exh. 195 is heavily banked upon by Landowners. Trial

Court has rejected oral evidence of Prabhakar Desmukh(Exh. 178),

Imrahimkhan Dannekhan(Exh. 179), Balkrishna Dande (Exh.181),

Vinod Padiya (Exh. 182) and sale deeds at Exh. 171,171-A, 177,

177-A, 172,173,180 and 175 as the same are about plots located at

some distance. Four of these sales pertaining to two plots ie plot no.

81 and 16 located in sheet no. 19 figure in Annex. G. Undisputed

calculations by Shri Gandhi in relation to these two plots show

67.34% and 50.22% per year hike on these two plots. It is obvious

that when sale instances from adjacent SMS layout are available,

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reference to distant sales is really not warranted. Plan filed by Shri

Gandhi at Annex. F to show sale instances utilized by him also show

the distance. The other plots are located in already developed areas

in City and hence rejection of those instances or then inclination of

Trial Court to rely upon sales in SMS layout can not be faulted with.

It is not the case of Landowners that any other similarly situated

area at outskirts of City was also showing similar appreciation.

Pawan Agrawal (Exh. 187) has deposed about two sales of plot no.

30 area 3910 Sq. ft in SMS layout, first by SMS Trust to his wife

Smt. Meera Agrawal on 28/5/1982 and later by Mrs. Meera to Vijay

Agrawal on 11/1/1984. These sale deeds are at Exh. 102 and 188.

It shows annual escalation of 23.72%. Pramod Bathra (Exh. 192)

has spoken of purchase of plot no. 42 area 4165 Sq. ft. in SMS

layout on 5/12/1981 and its sale by him on 23/6/1982 to Smt. Usha

Malani. These sale-deeds are at Exhs. 114 and 193. Appreciation

here is 34.78%. At Exh. 189 is evidence of Avinash Deshmukh and

he deposes about purchase of plot 51 area 4569.5 Sq. ft. and sale

of its part 1779.5 Sq. ft by his mother. Plot no. 51 is purchased from

SMS Trust as per agreement dated 26/11/1981 on 17/12/1981 and

its part is sold on 19/6/1984 to Shri Rathod as per deed registered

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on same day. Annual appreciation in this case is worked out at

31.21%. These 3 instances on an average show appreciation of

about 29% in SMS Layout. Trial Court has arrived at annual

appreciation of 10% due to binding precedents. However, when

these three undisputed instances are available on record, it is clear

that there was no scope for adhering to presumption of 10% annual

appreciation. There is nothing on record to hold that these three

instances can not be accepted as representative of market trends.

These instances are of residential plots either in second or third belt

in SMS Layout. However, Landowners plot no. 1 is situated further

away from town and at a height as compared to land of SMS layout.

Evidence on record also shows that there is no shop or commercial

development in the area till 1996 at-least. This appreciation in SMS

Layout is not for shop plots and hence half of it can be safely used

here. Hence, We are inclined to accept appreciation at 15% over and

above SMS rate instead of 25% as canvassed by Landowners. More

reasons for this course will appear little later in this judgment.

29. Shri Deo, learned counsel has contended that rate of

shop-plots in SMS layout can not be applied to residential plots in

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Landowners hypothetical layout. However, shop-plots in SMS Layout

are of 450 Sq. Ft. and buyers have purchased more that one such

plot at a time. These plots are also on mini by pass i.e., National

Highway. Till at least 1996, no shops had come up on any of these

shop-plots. Moreover, the front plots in hypothetical layout have

access either to same National High-way or other public road. The

sale instances of second belt plots in SMS layout i.e., of plots not

touching National Highway but having opening on internal layout

roads are also available. Plot no. 12 ad-measuring 3200 Sq. ft. is sold

by SMS to Smt. Deshmukh on 20/6/1984 as per sanction given by

Joint Charity Commissioner on 26/11/1981 at Rs. 11.88 per sq. ft.

Plot nos. 17 to 20 ad-measuring 10785 Sq. ft. are sold by SMS to

M/s Pooja Builders on 28/6/1984 as per sanction given by Joint

Charity Commissioner on 17/4/1982 at Rs. 12.05 per sq. ft. Plot nos.

21 to 23 ad-measuring 11615 Sq. ft. are sold by SMS to M/s Swati

Corporation on 22/6/1983 as per sanction given by Joint Charity

Commissioner on 17/4/1982 at Rs. 11.62 per sq. ft. Plot no. 29 ad-

measuring 4725 Sq. ft. is sold by SMS to Shri M.M. Sikchi and

Others on 30/6/1984 as per sanction given by Joint Charity

Commissioner on 17/4/1982 at Rs. 11.64 per sq. ft. Plot no. 34 ad-

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measuring 3890.7 Sq. ft. is sold by SMS to Smt. K.D. Vaidya on

20/8/1984 at Rs. 10.79 per sq. ft. This plot is from third belt and

date of sanction given by Joint Charity Commissioner could not be

verified by us. But as sale is by public trust and there are only two

sanction orders as deposed by Anandprasad (Exh. 75), the date has

to be either 26/11/1981 or 17/4/1982. There are no instances on

record of further sales in which these plots are again resold to find

out appreciation. Hence, if We treat average plot rate to be Rs. 11.75

per sq. ft. in November 1981 and apply rate of 15% annual

appreciation arrived at above for period of about 24 months, the rate

works out to Rs. 15.25 per Sq. ft. on 19/2/1984 for second belt plots

in SMS layout. In November, 1981, the average rate of shop plots or

belt 1 plots in SMS is found to be Rs. 14.80 per sq. ft. by Trial Court.

Thus then there was difference of about Rs. 3 per sq. ft. then. Rate of

shop plots then was about 25% more than belt 2 residential plots.

If this proportion is maintained and Rs. 15.25 is increased

similarly to arrive at price of belt 1 plots i.e., shop plots in SMS

Layout, it comes to Rs. 19.00 per sq. ft. Whether this shop plot rate

in SMS Layout can be adopted for first belt residential plots in

Landowners Layout is the issue. For their first belt plots LAO has

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granted rate of Rs. 9.29 per sq. ft., for belt II area at Rs. 7.90 per sq.

ft. and for 3rd belt area plots rate allowed is Rs. 6.69 per sq. ft. Thus

there is 18% rise on 3rd belt to derive price of belt 2 plots and

17.59% rise on 2nd belt to reach price of first belt plots. We have

reached the rate of Rs. 15.25 per Sq. ft. on 19/2/1984 for second

belt plots in SMS layout. If this is proportionately increased by

17.59%, it becomes Rs. 17.93 per Sq. Ft. for first belt residential

plots (hypothetical) in SMS Layout as per LAO. However, Shri

Gandhi has computed value of 2nd belt plots at 2/3rd of the first belt.

If We increase the rate of Rs. 15.25 by 1/3rd, We get rate of Rs.

20.00 per Sq. ft. for these first belt plots (residential) in SMS. Thus

in this hypothetical situation, rate of shop plots in SMS Layout on

19/2/1984 reached is Rs. 19.00 per Sq. Ft. ie. less than residential

rate. Now question is what would a customer prefer! A mixed

layout like SMS or then purely residential one like hypothetical

layout here? Exercise in next paragraph demonstrates rate of Rs.

19.90 for first belt plots. It therefore brings forth the difference of

Rs.1.97 per Sq. ft. on LAO determination. We are looking at the

matter almost 27 years after Section 4 notification. The possible

error if rate of Rs. 19.90 is held correct, may be of 10%. When the

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recourse has to be to guesstimate, it is apparent that market value

can not be determined with mathematical precision. The evidence

on record shows that though SMS Trust laid out shop plots, no shop

activities had commenced till 1996 i.e., at-least for 15 years after

said Layout was sanctioned. Whether People purchased shop plots,

three or four together, perhaps for use as residential plots only?

Trial Court has applied rate of Rs. 19.60 per Sq. ft. for first belt plots

in Landowners hypothetical layout. Learned Senior Advocate has

fairly pointed out the calculation error committed by the Trial Court

in the process. He has successfully shown that if said mistake is

corrected, these rates are required to be lowered to Rs.18.10 for first

belt, Rs. 15.38 for second belt and 13.08 per Sq.Ft. for

third/remaining belt plots. Though Trial Court is in error as it failed

to note that time-gap was of 2 years and 85 days only, in view of

the discussion above, We are not in position to find its rates either

exorbitant or arbitrary.

30. As SMS sale instances are to be applied with 15% annual

hike, We can also safely utilize average calculated at Rs. 14.80 per

Sq. feet by Trial Court in paragraph 29 of its judgment for first belt

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plots for our consideration. Section 4 notification is issued on

19/2/1984 and sale deeds of plot no. 1 to 17 in SMS layout are

registered on 5/12/1981. Agreements for all these shop plots are on

2/11/1981. Hence period from 2/11/1981 to 19/2/1984 of 2 years

3 months and 16 days is the period for which appreciation at 15%

annually needs to be worked out. It works out to 34.48% or 34.50%.

Thus with this hike, average rate as on 19/2/1984 comes to Rs.

19.90. Trial Court has applied such rate erroneously calculated by it

@ Rs. 19.60 to first belt plots in Landowners layout. Shri Gandhi

after this stage gave weightage of 10% to plots in first belt in

acquired land and has arrived at his rate of second belt plots by

reducing this rate by 33% and of third belt plots by decreasing it by

50%. Trial Court has reduced 15% from its rate of first belt and

further 15% for third belt, to calculate rates of second and third

belt respectively. We do not find any relevant material on record to

justify this additional weightage of 10% or its demand by

Landowners. As propriety of this exercise applying 15% factor

undertaken by Trial Court is not seriously in dispute before us, if it is

adopted and accordingly We find Rs. 16.90 and Rs.13.90

respectively to be the rates of second and third belt plots in

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Landowners hypothetical layout. Landowners have neither argued

nor sought any specific increase in this rate. In this situation, We

independently accept the rate as awarded at Rs. 19.60 for first belt

plots, Rs. 16.66 for second belt plots and Rs. 13.80 per sq. ft. for

third belt plots as used by the Trial Court. The consideration of

material directly above obviates need to delve more into evidence of

Shri Deshmukh and Shri Gandhi or into rival contentions in this

regard. Appeal of State to reduce it further does not hold any water.

31. Now the belting exercise needs evaluation. Trial Court

has treated 95,060 Sq. Ft. abutting National Highway as First belt

plots. Those plots are plot nos. 1 to 14 and 15 to 17. Plots 18 to 32

situated at other periphery of the hypothetical layout (drawing of

Shri Gandhi) are valued as second belt plots. Area of these plots

97,020 Sq. ft. Other plots bounded on outer side by belt 1 or 2 plots

having access on internal layout roads are third belt plots. Their

total area is 2,88,440 Sq. ft. Thus Trial Court has considered

4,80,520 Sq. Ft. as plotable land available for actual sale out of total

area 6,44,440 Sq. ft. of plot no. 1. In his drawing Shri Gandhi has

considered plots 1 to 32 at periphery of layout on public roads as

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belt 1 plots. Plots behind belt 1 plots as belt 2 plots. 11 plots forming

boundary of SMS Layout and near big bungalow, including plot of

big bungalow, are shown as third belt. Total area of plot 1 looked

into by him is 6,44,440 Sq. ft. and plot area under three belts is

4,80,520 Sq. ft. Remaining land is for public utility. Land on which

structures are erected are also shown as plots in his layout. If total

land used by Trial Court and Shri Gandhi is presumed to be correct,

it is apparent that reasons given by Trial Court for rejecting Layout

of ADTP can not be faulted with. Layout of Shri Gandhi is not

demonstrated to be contrary to any building bye-laws of Municipal

Council or development control rules. Being hypothetical, it was not

necessary for Landowners to get it sanctioned and State ought to

have brought on record the irregularities or illegalities in it while

Shri Gandhi was subjected to cross examination. As the total area

considered by Landowners and Trial Court is required to be

reduced, State has sought proportionate reduction from all three

belt-areas as arrived at by Trial Court.

32. We have already disagreed with the finding that the

acquired area was/is 59,870 Sq. Mtrs. or 6,44,440 Sq. feet. Not

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more than 54,168.86 Sq. Mtrs. of area could have been utilized by

Landowners or Trial Court to prepare a hypothetical layout. ADTP

has contemplated layout on land as acquired i.e., on 54,168 Sq.

Mtrs. Utilizing the equation that 59,870 Sq. Mtrs. is equal to

6,44,440 Sq. feet, about 5702 Sq. Mtrs. (67,836 Sq. Ft) additional

land is required to be proportionately deleted from 3 belts.

Substance in challenge to area of each belt therefore needs to be

verified first. Mini by pass road is National highway and Chilamshah

Wali Road, though a public road, was not a tar road but a kuchha

road then. It therefore was at rear of the layout but with potential to

come on public road if there was plan to construct a pucca tar road

in its place in near future. Kuchha road can not be given more

importance that an internal road in hypothetical layout. Because of

this possibility only, Trial Court has recognized it as second belt. We

therefore can not yield to argument of learned Senior Advocate to

treat plots 18 to 32 shown in yellow colour and valued as 2 nd belt

plots by Trial Court to be at-least of an intermediate belt between

category 1 and 2. We also can not accept the contention to value

plots 53 to 63 located just behind plots on national highway as

second belt plots. Efforts made by him to show plot no. 63 at-least as

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in second belt can not be countenanced. We fail to see any logic in

recognizing plots situated at back of highway touch plots as second

belt plots as those plots have to use internal layout roads only and

are not situated differently than third belt plots demarcated in his

drawing by Shri Gandhi. Uniform treatment as third belt to all such

plots encircled by first and second belt plots by Trial Court appears

more reasonable. We therefore proceed to reduce proportionately

from each belt the area used in excess by Trial Court.

33. Proportionate deductions have to aim to adjust 5702 Sq.

Mtrs. (67,836 Sq. Ft) of area. It forms about 10.49 th part of 59,870

Sq. Mtrs. or 9.49th portion of 6,44,440 Sq. feet. We therefore reduce

about 1o% area form entire chart of land utilization proportionately

from lands left open or for roads and each belt. After such an

exercise, area acquired and becoming available in first belt is

95060-09506=85,554 Sq. ft., in second belt it is 97020-

09702=87,318 Sq. ft. and in third belt land available turns out to

be 288440-028844=2,59,596 Sq. ft. Rate per square foot arrived at

above for three belts is required to be applied to these three areas

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respectively. It thus leads to following :–

       Belt.               Area                Rate.               Valuation.    




                                                     
     First Belt          85,554 Sq. ft.  X Rs. 19.60  =      1676858.40

     Second belt      87,318 Sq. ft   X Rs. 16.66  =      1454717.88




                                       
     Third belt       2,59,596 Sq. ft. X Rs. 13.80  =      3582424.80     
                     
     Thus, total  market  value     of   entire  land  including  land on   which 
                    

structures stand is Rs. 6714001.08 67,14,001/- i.e., Rs. Sixty-Seven

Lac Fourteen Thousand and One only. Thus there is no reason to

consider separately the extent of land required to support the

structures by invoking relevant building bye-laws or development

control rules and FSI/FAR and add its value again to this land costs.

34. Deductions towards developments and deferred value

are to be carried out from this figure of Rs. 67,14,001/-only. In Exh.

204, Shri Gandhi has given details of development expenses worth

Rs. 10,93,000/-. He has also taken deferred value at 6% for 3 years.

In Exh. 205 submitted after gap of about 9 months from Exh. 204,

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he has attempted to set off deferral value adjustment against annual

escalation. In Exh. 195, expenditure towards developer’s profit and

legal selling expenses is mentioned for the first time and its figure

disclosed is 11,02,000/-only. In Exh. 204, he shows following

expenses:–

                       Work.                                                    Cost in Rs.




                                            
     -   Construction of 90,350 sq. ft. Roads
          and  asphalting at Rs. 6.50 Per Sq. ft.
                         ig                                                 5,87,275.00

     -   Garden development 65,650 Sq. ft.
         @ Rs. 2.50 Per Sq. Ft.                                       1,64,125.00
                       
     -   Storm Water drain, 1000 Rmtrs.
         @ Rs. 200 per Rmtrs.                                        2,00,000.00
      

     -   Street lighting                                                      80,000.00    
   



     -   Architects charges @ 6%                                      61,884.00   


Total liability thus computed by him in it was Rs. 10,93,284/-

rounded up to Rs.10,93,000/-only. As against this, in report Exh.

195 prepared in 1996 on the eve of entering the witness box, the

expenses disclosed in paragraph 18.50 are as under :–

                            Work.                                              Cost in Rs.    

     -   Construction of water bound macadam road 
         99,480 Sq. Ft. @ Rs. 1 per Sq. ft.                        99,480.00




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     -   Garden development.                                          32,000.00




                                                         
     -   40 mm water main 2500 Rft. @ Rs. 13 per
         Running feet.                                                       32,500.00

     -   Street light poles with cable, 36 in number




                                                        
         @ Rs. 2000/-per no.                                            72,000.00

     -   Storm water trenches job                                    05,000.00

     -   Architects charges @ 6%                                     14,458.00.




                                          
                       

Total of all these items comes to Rs. 2,55,438/- and it has been

rounded up to Rs. 2,55,000/-in this Exhibit. Its paragraph 19.00

deals with developer’s profit and legal selling expenses. It is worked

out at 12% of gross realization of estimated value of plots i.e., of

Rs.91,78,480/-. Said profit is shown to be Rs. 11,02,000/-. Thus

from Rs. 91,78,480/-, Rs.2,55,000/-and Rs. 11,02,000/- are

subtracted by Shri Gandhi to arrive at rounded up net land value of

Rs. 78,21,000/-.

35. Explanation given by Shri Gandhi is in 1996 when he saw

adjacent layout and developments therein, he applied very same

standards to his hypothetical layout. However, there is no

explanation as to why the developer’s profit worth Rs. 11,02,000/-

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could not be reflected in Exh. 204 or 205. His cross-examination

particularly in paragraph 16 shows that he was aware of absence of

municipal drain or sewerage main and has asserted that individual

plot has to provide for it. In Exh. 195 there is no head of expenditure

on storm water drain while in Exh. 204 he has made provision of Rs.

2,00,000/- therefor. He has denied need of common sanitation

system. He has accepted that in layout, he has not shown any

service lane or common sanitation plot. We therefore find this

material sufficient not to accept his working of development

expenditure. Similarly, when law requires market value to be

worked out on section 4 notification date, the layout is presumed to

be complete in all respects on said day and price rise or escalation

thereafter is totally irrelevant in hypothetical plotting method. His

attempt to set of deferral value against future escalation is therefore

erroneous. Hence, his estimate of development expenditure can not

be acted upon. Development expenses and developer’s profit

brought on record by State through its witness Shri Deshmukh (Exh.

219) is only Rs. 7,99,824/-. In award State through him (LAO)

only gave Rs. 3,71,504/- for first belt plots at Rs. 9.29 per sq. ft., Rs.

10,25,678/- for belt II area at Rs. 7.90 per sq. ft. and Rs.

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14,06,858/- for 3rd belt area plots at Rs. 6.69 per sq. ft. Total

compensation worked out was Rs.28,04,040/-. With value of

structures, trees and statutory benefits , award granted Landowners

total compensation of Rs. 34,67,030/-. Out of total land value, about

25% was roughly taken as development expenditure by LAO Shri

Deshmukh. In government layout plots shown are 94 while Shri

Gandhi shows 63 plots. Government layout shows road area to be

24% while in Shri Gandhi’s drawings it is 15%. It is not the case of

Landowners that other layouts in the vicinity were sanctioned

without proposal of tar road or sanitation or drainage. But then

when number of plots and area under road in both layout are

compared, it does not lead to any certain solution. Shri Deshmukh

has attempted to work out average rate of plot per Sq. ft. in SMS

Layout and there due to less frontage on national highway, area of

plots in belt 1 (shop plots) are less as compared to such frontage

available in Landowners hypothetical layout. In this situation, We

find it safe to go by the case of Government and calculations of Shri

Gandhi to compute development expenditure. When Rs.10,93,000/-

envisaged as development expenditure in Exh. 204 is loaded with

developer’s profit of Rs. 11,02,000/- , it works out to Rs. 21,95,000/-

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only. As layout area is reduced by about 10%, We also reduce this

figure by 10% and thus it totals to Rs. 19,75,550/-. Thus developer

expenditure worked out is about 29%. This is only amount to be

spent for development activities from consideration received from

hypothetical buyers and land is already set apart for it. Hence, value

proportionately of such land is not included in it. In paragraph 40 of

impugned judgment, the Trial Court has held that the future

escalation balances the deferral value and hence, has not found it

necessary to make any provision for it. This reasoning is found

wrong above by us. Shri Gandhi had made provision of 6% per year

for three years for said purpose in Exh. 204 in January 1985 before

withdrawing it in October, 1985. We accept the same proportion

here. Total land value worked out by us is Rs. 67,14,001/- only.

Subtracting Rs.1975550/- from it leaves sum of Rs. 4738451/-

which Landowners get in lump-sum as compensation which

otherwise would have been blocked for future at least 3 years. 6% of

Rs. 4738451/- works out to Rs. 8,59,921/-for three years. When half

of this figure i.e., Rs. 426460/-is added to Rs. 1975550/-, total

comes to Rs. 2402010/-. Subtraction of this total form Rs.

67,14,001/-, leaves balance of Rs. 43,11,991/- which therefore is

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net land value. Point No. C is answered accordingly.

36. As to Point No. D : Compensation of two residences i.e.

big bungalow and second bungalow now need consideration.

Landowners have solely relied upon their expert. How to approach

evidence of said expert Shri Gandhi is also a moot question. In AIR

1995 SC. 840 – (Special Land Acquisition Officer v. Sri Siddappa

Omanna Tumari) :-

” 7. When the Collector makes the reference to the
Court, he is enjoined by Section 19 to state the

grounds on which he had determined the amount

of compensation if the objection raised as to the
acceptance of award of the Collector under
Section 11 by the claimant was as regards the

amount of compensation awarded for the land
thereunder. The Collector has to state the grounds
on which he had determined the amount of

compensation where the objection raised by the
claimant in his application for reference under
Section 18 was as to inadequacy of compensation
allowed by the award under Section 11, as
required by sub-section (2) of Section 18 itself.

Therefore, the legislative scheme contained in

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Sections 12, 18 and 19 while on the one hand

entitles the claimant not to accept the award

made under Section 11 as to the amount of
compensation determined as payable for his
acquired land and seek a reference to the court for

determination of the amount of compensation
payable for his land, on the other hand requires
him to make good before the Court the objection

raised by him as regards the inadequacy of the

amount of compensation allowed for his land
under the award made under Section 11, with a

view to enable the Court to determine the amount
of compensation exceeding the amount of
compensation allowed by the award under Section

11, be it by reference to the improbabilities

inherent in the award itself or on the evidence
aliunde adduced by him
to that effect. That is
why, the position of a claimant in a reference

before the Court, is considered to be that of the
plaintiff in a suit requiring him to discharge the
initial burden of proving that the amount of

compensation determined in the award under
Section 11 was inadequate, the same having not
been determined on the basis of relevant material
and by application of correct principles of
valuation, either with reference to the contents of

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the award itself or with reference to other

evidence aliunde adduced before the Court.

Therefore, if the initial burden of proving the
amount of compensation allowed in the award of
the Collector was inadequate, is not discharged,

the award of the Collector which is made final
and conclusive evidence under Section 12, as
regards matters contained therein will stand

unaffected. But if the claimant, succeeds in

proving that the amount determined under the
award of the Collector was inadequate, the

burden of proving the correctness of the award
shifts on to the Collector who has to adduce
sufficient evidence in that behalf to sustain such

award. Hence, the Court which is required to

decide the reference made to it under Section 18
of the Act, cannot determine the amount of
compensation payable to the claimant for his land

exceeding the amount determined in the award of
the Collector made under Section 11 for the same
land, unless it gets over the finality and conclusive

evidentiary value attributed to it under Section
12, by recording a finding on consideration of
relevant material therein that the amount of
compensation determined
under the award was
inadequate for the reasons that weighed with it.

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15. It has become a matter of common

occurrence with the claimants who seek enhanced

compensation for their acquired lands from court
to produce the reports of valuation of their lands
in court purported to have been prepared by the

experts. No doubt, courts can act on such expert
evidence in determining the market value of the
acquired lands, but the court having regard to

the fact that experts will have prepared the

valuation reports in the court and will depose in
support of such reports, at the instance of the

claimants, must with care and caution examine
such reports and evidence given in support
thereof. Whenever valuation report made by an

expert is produced in court, the opinion on the

value of the acquired land given by such expert
can be of no assistance in determining the
market value of such land, unless such opinion

is formed on relevant factual data or material,
which is also produced before the court and
proved to be genuine and reliable, as any other

evidence. Besides, if the method of valuation of
acquired land adopted by the expert in his report
is found to be not in consonance with the
recognized methods of valuation of similar lands,
then also, the opinion expressed in his report

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and his evidence can be of no real assistance to

the court in determining the market value of the

acquired land. Since the exercise which will
have been done by the expert in arriving at the
market value of the land in his report on the basis

of factual data bearing on such valuation, will be
similar to that to be undertaken by the court. In
determining the market value of the acquired

land, it can no doubt receive assistance from such

report, if it is rightly done and the data on which
the report is based is placed before the court and

its authenticity is established.

16. Therefore, when the valuation report of an
acquired land is made by an expert on the basis of

prices fetched or to be fetched by sale deeds or

agreements to sell relating to the very acquired
lands or the lands in the vicinity need arises for
the court to examine and be satisfied about the

authenticity of such documents and the truth of
their contents and the normal circumstances in
which they had come into existence and further

the correct method adopted in preparation of the
report, before acting on such report for
determining the market value of the acquired
land. The opinion expressed in the report that the
author of the report has made the valuation of the

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acquired lands on the basis of his past experience

of valuation of such lands should never weigh

with the court in the matter of determination of
market value of the acquired lands, for such
assertions by themselves cannot be substituted for

evidence on which it ought to be based and the
method or valuation adaptable in such report.

17. Therefore, when a report of an expert is got

produced by a claimant before the
court giving

market value of the acquired lands, the court
may, choose to act upon such report for

determination of the amount of compensation
payable for the acquired lands, if the data or the
material on the basis of which such report is

based is produced before the Court and the

authenticity of the same is made good and the
method of valuation adopted therein is correct.”

37. In Prabhakar Raghunath Patil v. State of Maharashtra,

(2010) 13 SCC 107, Hon’ble Apex Court has appreciated the

evidence of expert on structures. Reliance was placed by the

appellants on the evidence of the expert witness and also on the

circular dated 3-1-1991 issued by the Chief Engineer, Amravati in

respect of cost of construction in justification of their prayer for the

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increase of the valuation of the structure. Under that circular the

cost of residential building was fixed for Ground floor at Rs. 2800

per square metre, for First floor at Rs. 2200 per square metre and for

Second floor at Rs. 2200 per square metre. Insofar as the opinion of

the expert is concerned, he had not given any specific evidence as to

what was the age of the structure when it was notified for

acquisition. Hon’ble Court held that without making enquiry

regarding the age of the structure, it would be difficult to assess its

valuation and, therefore, the expert was not justified in not making

an assessment with regard to the age of the structure. He was

faulted on the basic principle of assessment of valuation of a

construction. Hon’ble Court also noted that the cost of construction

of the ground floor is always on the higher side while the cost of

construction of first floor and second floor is on the lower side. The

expert examined had also ignored the said fact going to the root of

the valuation and for that also the evidence of the expert was held

not reliable. The only evidence that, therefore, was available before

Apex Court was the circular issued by the Chief Engineer, Amravati

dated 3-1-1991 regarding district schedule rates in respect of cost of

construction with reference to the Building and Construction

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Department of the State of Maharashtra. This High Court, had held

that the aforesaid evidence for the year 1991 in District Amravati

could not be a safe guide for the determination of the compensation

of the structure acquired in the year 1983. Hon’ble Apex Court

noted that the practice of issuing such circular by the Chief Engineer

was for the first time introduced in the year 1991 and no such

practice was in existence in the year 1983. But since there was at

least some evidence indicating the district schedule rates for the

standing structure in the year 1991, Hon’ble Court undertook the

exercise of relating it back to the year 1983 after pointing out how

and why it must be undertaken with great care and caution. The

High Court, while referring to the oral evidence adduced by the

expert, had stated found the fine condition of the structures and the

superior quality of materials used for construction of the same

beyond doubt. Hence, despite the ambiguity surrounding the age of

the structures, as the condition and quality of the building was never

called into question. Therefore, Hon’ble Apex Court raised the

compensation awarded. It also observed that the margin of error in

comparing schedule rates for construction of buildings in the same

district would be lesser than in attempting to use future sale

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transactions as exemplars. Hon’ble Apex Court considered a

deduction of 60% (approximate) from the said valuation of the cost

of construction in 1991 appropriate, and accordingly arrived at a

compensation of 1700 per square metre for the structure. This

percentage of deduction at 60% is based on the building cost index

between 1983 and 1991 published by the Central Public Works

Department. Thus Hon’ble Apex Court did not accept the report of

expert but relied upon other evidence/material brought on record by

parties to determine the compensation for structure.

38. It is obvious that data of type and nature looked into

by Shri Gandhi while determining the market price of plot no. 1 or

then charts prepared by him to substantiate that exercise is not

available when one comes to his report on valuation of structures.

There he blindly accepts 1930 – the year of purchase of properties by

his client i.e., Landowners, as year of construction and decides the

age to be 54 as on 19/2/1984. He then points out approximate

future life of the structures and treating total life thereof to be 85

years, he applies depreciation. He claims that he has used full

replacement costs method to arrive at 1984 value of structures.

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Here, we may point out that in P
rabhakar Raghunath Patil v. State of

Maharashtra, (supra) Hon’ble Apex Court has made following

observations on principles relevant for deciding the full

replacement cost of structures:–

“13. In Administrator General of W.B. v. Collector-
(1988) 2 SCC 150=AIR 1988 Sc 943, this Court held

that:

“17. … building value is estimated on the basis of the
prime cost or replacement cost less depreciation. The

rate of depreciation is, generally, arrived at by
dividing the cost of construction (less the salvage value
at the end of the period of utility) by the number of

years of utility of the building. The factors that
prolong the life and utility of the building, such as

good maintenance, necessarily influence and bring
down the rate of depreciation.”

39. Admittedly, following buildings stand on the acquired

land – One big bungalow; One small bungalow, One barrack type

building, Two toilet blocks and Mali Shed. Award under Section 11,

grants land owners sum of Rs. 3,78,000/- towards these structures,

and before Reference Court they had claimed compensation of Rs.

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18,22,000/-. They thus, claimed Rs. 14,44,000/- more towards

these structures. Before us, learned Senior Counsel has restricted his

arguments to only two structures namely – Big bungalow and small

bungalow. Evidence available on record is of Government Valuer –

Shri Manoharrao Gulabrao Kale at Exh.217 and his valuation report

is at Exh.218. Land owners have relied upon evidence of Shri

Gandhi and his report at Exh.195.

40. The Reference Court/Trial Court has found that Shri

Kale, fixed the rate of construction of ground floor of big bungalow

at Rs.1150/- per square meter and of first floor at Rs.1050/- per

square meter. For small bungalow, he determined the rate at

Rs.900/- per square meter. The valuation was claimed to be made

on the basis of CSR rates of 1984. It is not in dispute that these

rates are not placed on record, or even figure anywhere in his report

Exh.218. His cross examination reveals that as measurements of

existing structures were available with him, he was given time to

point out how on the basis of CSR rates a particular valuation was

arrived at by him. He got two adjournments also to substantiate his

calculations. On one occasion CSR Rates were shown to him and he

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was called upon to justify his calculations, but he failed to produce

anything on record to show correctness of his calculations by

applying CSR Rates. Trial Court therefore, has refused to believe his

report at Exh.218. The Trial Court has also noted the fact that he

did not consider the Porch and Balcony for construction valuation

and no reason was assigned for excluding the same. Then it found

that he had deducted sum of Rs. 1,50,000/- from valuation of

structure i.e. of Big bungalow on account of renovation expenses.

No document could be produced to show that such expenses were

actually incurred. Taking over all view of the matter, it did not rely

upon the evidence of Shri Kale. For same reasons it also refused to

accept evidence of the Land Acquisition Officer Shri Deshmukh.

41. In paragraph no.49 of its judgment, the Trial

Court has referred to the evidence of Shri Gandhi. It found that he

has looked into the construction of Porch and Balconies and arrived

at construction cost by using data collected by him, his personal

experience and CSR Rates for cross checking. It has given

importance to admission by Shri Manohar Kale in his cross

examination that Shri Gandhi has correctly applied the depreciation

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method. It further looked into the cross examination and found that

assertions of Shri Gandhi were not shaken and hence, in view of

these 5-6 lines, it proceeded to accept his evidence and relied upon

his figure of Rs. 17,57,721/- as value of big bungalow, small

bungalow, out houses, Porch, Balconies, Mali Shed and lavatory box.

It deducted an amount of Rs. 3,78,000/- already awarded by the

Land Acquisition Officer and fixed the compensation payable in this

respect at Rs. 13,79,721/-. It also found that there was one Well,

but then it was without water and hence of no use, but a

disadvantage. It therefore, did not allow land owners anything

towards value of that Well.

42. The Trial Court itself has relied upon the judgment

reported at 1997 (2) Land Acquisition Laws 537 (Indian Rarearth

Ltd. .vrs. Elsave Fernandis). It noted that as per said judgment, it

was incumbent upon the valuation officer to show details of

valuation in his report. If his report is supported by proper data, it

would help the Court in finding out whether building and other

structures were properly valued or not, and to show that valuation

exercise was impartial and not arbitrary. It found that neither the

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Land Acquisition Officer Shri Deshmukh nor Shri Kale, had produced

relevant material. However, one fails to understand why the Trial

Court could not apply very same standard while appreciating the

evidence of Shri Gandhi.

43. This brings us to consideration of evidence of Shri

Gandhi on these two buildings i.e., big building and small building.

In his examination-in-chief he has given his qualifications and

thereafter has stated that he was practicing as Architect, Structural

Engineer and Valuer for about 35 years and as on date on which his

deposition was recorded, i.e. on 07.12.1996. He has stated that he

was fellow of Institution of Valuers and a registered valuer with the

Ministry of Finance, Government of India. He was panel valuer of

Life Insurance Company and of Bombay High Court for immovable

properties, and had worked as an Editor of a Technical Journal by

name “Indian Valuer” for a duration of 6 years. He claimed that

during practice he planned, designed and supervised number of

residential and industrial buildings and fixed valuation of properties

in rent fixation matters and also for taxation and loan advance

purposes and land acquisition purposes. He also stated that he had

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appeared in the Court as an expert. He confirmed statement made

by him in his report, and that report came to be exhibited as

Exh.195. His cross-examination reveals in paragraph 22 that he

inspected two buildings on 21.03.1984 and he had no knowledge

whether main building was then repaired already by government.

Thereafter, he visited the buildings on 11.07.1984 and 27.12.1988.

He accepted that the building was very old having old structure and

he could not trace any document about the date of construction. He

accepted that he did not mention CSR rates in his report and his

report was based upon his personal experience and data collected by

him. He further volunteered that he used CSR to cross check and,

therefore, CSR is not mentioned in his report. He adopted lump-

sum per square feet prices as per his experience for valuation. He

accepted various method, but stated that those methods were not for

arriving at valuation of building, but for valuation of property which

included land and building both. He further stated that he adopted

rates on the basis of his own experience and he has mentioned those

rates applicable to built up floor area basis. He included porch and

galleries also in built up area. He accepted that porch of building

has no plinth and he calculated total area of porch as built up area.

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He has given same average rate for porch as also for projecting

balconies. He accepted that cost of first floor of any building is less

then ground floor. He denied that porch and balconies needed to be

excluded from cost estimation and he also denied that cost of

projecting structure was also included and built up area. He

accepted that because of thicker walls, carpet area is reduced. He

accepted that he gave weightage of 35% in respect of big building.

He further stated that he had not prepared detailed estimate of

acquired building and he considered depreciation of about 22% for

all the buildings. He denied that rate of depreciation is about 1%

per year of the building cost and he stated that he applied “sinking

fund of depreciation method”. He took 1930 as base year for

construction. He explained the term “sinking fund” to mean that

funds required to be set aside every year to recoup capital invested

in the building. No document was supplied to him by land owners

for arriving at annual fund and according to him it was not

necessary. The sinking fund method and calculation was based

upon assumption. He further stated that other methods i.e. Straight

Line Method, Constant Percentage Basis and Qualify Survey Method

were not scientific. He further stated that he had not verified the

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Government Method of valuation, and therefore, could not say

whether the rate given by him was higher than the government rate.

He claimed that he determined the valuation on the basis of his

experience and on the basis of the market rate prevailing in

Amravati City.

44. His (Gandhi’s) report at Exh.195, in it’s paragraph

no.5.00 shows type of construction of Bungalow No.1 as also

Bungalow No.2. He has given general description like, old

conventional bungalow built in Palatial style with number of large

sized rooms at each floor, high ceiling, large size doors and

windows of Burmah teak, which was than available freely, but very

rate at the time of preparation of report. He has pointed out that the

structure was load bearing and external walls were 21 inches thick.

He has also given the length and breadth of brick pillars, he has

pointed out teak wood paneled windows with iron fittings and oil

paint, guard bars, different type of teak wood doors. Some doors

were paneled and some were partly glazed and partly paneled.

Upper floor doors and windows have curved glazed ornamental fan

lights and have brass fittings. No specific number of doors or

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87

windows is disclosed by him. All wooden work is stated to be

painted. Floor is stated to be of Shahabad Ladi on both the floors.

Steel joists with ladi and brick coba on first floor and terrace of first

floor is finished with patent stone paving of water proof coba. Use

of ornamental concrete balusters provided with top decorative

coping for a terraces to add to architectural beauty , is also

mentioned. A concrete staircase with teak wood railing and first

floor roof of Manglori tiled with teak wood trusses, teak wood

perlins and teak wood boarding, is also mentioned. Best timber is

used for roof work. It is mentioned that the bungalow is in good

condition, due to use of quality material and good workmanship.

There was no indication of white ants and timber was not decayed.

Temporary sheds open on sides were provided at ground level

touching walls of main building and it was having wooden bulley

posts and asbestos corrugated sheets roof with natural ground, as

its floor. A balcony covered at top with C.I. Jali and teak wood hand

rail, is also mentioned. Electrical wiring is stated to be open type

with wiring on teak wood battens. A toilet block with pipe fittings,

waste line is connected to septic tank, is also noted. The report also

mentions provision of standard plumbing and water supply fittings.

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88

45. About bungalow no.2, report of Shri Gandhi discloses

that it is a load bearing structure with 9 inches plinth and about 17

feet height. It’s side verandah has front height of 10 feet above

plinth, 8 feet wide paved and a uncovered platform is also provided

around the main building at plinth level. It has brick walls which

are about 15 inches thick and teak wood paneled or partly glazed

and partly paneled doors are fixed. Windows have teak wood with

ornamental curve fan light and fly proof jali. Burmah teak is used

for wood work. It’s roof is of manglore tiles with teak wood perlins

and teak wood boarding. Verandah has manglore tile roof with balli

rafter. Entrance porch has manglore tile roof with teak wood

trusses. Flooring is of plain cement tiles and some rooms have patent

stone floor. Cooking platform is provided in kitchen. W.C. and bath

are connected to waste lines and to septic tanks and soak pit.

Standard electrical wiring work is also done.

46. This discussion shows that except for giving the details of

structure, the report does not give other necessary background

which might have looked into by said expert witness. He has

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89

undertaken the exercise of valuation in paragraph no.20 and there

he has given calculations of area of bungalow no.1. The ground

floor is stated to 5582 sq. ft. with porch and first floor is stated to be

3374 sq. ft with Balcony. Total floor area is given as 8956 sq. ft. He

has then in next paragraph given rates felt by him as fair and

reasonable cost of construction of a new (full replacement cost) such

structure for Bungalow no.1. He has applied rate of Rs. 165/- per

sq. ft. for bungalow no. 1 and for Bungalow no.2 he has disclosed

rate of Rs.150/- per sq. ft. In paragraph thereafter, he has

mentioned that the structures were built some time in the year 1930

and hence at the time of acquisition their age was 54 years. He has

mentioned that all structures were in sound condition and actually

in use and would last for a tenure of 30-40 years. Total life of the

structure is, therefore, taken to be 85 years by him. He has then

mentioned sinking fund method for depreciation and then

proceeded to undertake mathematical calculations. He has arrived

at depreciated value or present value of bungalow no.1 at

Rs.11,60,064/- and of Bungalow no.2 at Rs. 3,41,722/-.

47. His exercise shows that he has applied same rate for

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ground floor and first floor of big bungalow. He has applied that

rate even for structures which had no plinth, though in his evidence

he has mentioned that he has cross-checked it by using CSR, there is

no such mention anywhere in the said report at Exh.195. He has

also mentioned that he has looked into the market rates prevailing

in Amravati City, but that statement also no where figures in his

report at Exh.195. The report itself is prepared on 21.08.1995 and

recording of his evidence has commenced on 07.12.1996. In

absence of either CSR rates or then rates verified from Amravati

market on record, it is difficult to appreciate the rates worked out

and applied by him. As already noted above, in paragraph

no.20.20 of his report, he suddenly mentions the rate per square feet

applied by him, without disclosing any basis therefor. Even if his

experience is to be looked into, he has not pointed out it’s use while

preparing report at Exh.195. The report has obviously been

obtained by the landowners for using in Court matters and Shri

Gandhi was aware of its purpose. It cannot be forgotten that he had

appeared before land acquisition officer, when that officer had

undertaken efforts to find out market value of the acquired property.

He has not given the rates of bricks or wood prevailing in 1984, rate

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91

of cement or steel then prevailing and even labour charges are not

mentioned. He has not pointed out regular maintenance. It is,

therefore, obvious that in absence of this relevant material, it is not

possible to find out correctness or otherwise of his claim in Exh.195

in this regard. An expert like him has to describe the property in

requisite details and thereafter mention the prevailing market

position also, so as to enable the Court or the authority to ascertain

the correctness of his stand by appreciating his line of application of

mind. Here, though CSR rates were made available to one witness of

State Government during his cross-examination and effort has been

made to discard him, Landowners have not brought that rate on

record and Shri Gandhi, has not pointed out that CSR also provided

rates for same or similar type of construction. On the contrary, in

paragraph no.26, this witness has stated that he has given positive

weightage of 35% in respect of building no.1. During arguments, it

was stated that the CSR rates consider cement and iron at controlled

rate and not at open market rate. However, this fact and its use it

also not apparent in report at Exh.195. The report, therefore,

appears to be prepared only on the basis of the assumptions which

the expert claims as supported by his experience, however, law does

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92

not permit use of said report for the purpose of determination of

valuation. Landowners and said expert Shri Gandhi, ought to have

produced relevant basic data, so as to enable the trial Court and

thereafter, this Court to understand the nature of exercise

undertaken by him and to verify it. We find that for reasons

recorded by it to reject the report of Shri Kale, the trial Court also

ought to have rejected the report of Shri Gandhi.

48. Here, Shri Gandhi does not disclose search made by

him to find out age of construction and he remains satisfied with

accepting year of purchase as year of construction. He has not given

any data to show the contemporary rates of construction then

prevalent in that area. He does not find it necessary to refer to CSR

rates or any material gathered by him for arriving at his rates. Thus

he refuses to supply anything to enable State to cross check his

claim or to Court to evaluate it. In ultimate analysis, one has to only

accept his word or the his experience to support that word. He

includes structures without plinth and also values first floor at

wrong rates. Depreciation rate applied by him is also not sustainable

in the light of above verdict of Hon’ble Apex Court. We find that

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93

initial burden to show that valuation of structures by LAO is

incorrect has itself not been discharged by Landowners. By pointing

out cross examination of Shri Kale, effort was made to show that he

could not and did not choose to substantiate exercise undertaken

therein. It is not sufficient to rebut the presumption attached to

award under Section 12 of Act. Moreover that also does not mean

that Landowners automatically become entitled to something more

towards costs of construction or as compensation for structures.

Appreciation of evidence and approach of Court in such matters can

be gathered from judgment in case of P. Ram Reddy and Others vs.

Land Acquisition Officer, Hyderabad Development Authority (supra).

Hon’ble Apex Court has held that in land acquisition references

before Civil Courts, when witnesses give oral evidence in support of

the claims of claimants for higher compensation the in-effective

cross-examination of such witnesses, is not an uncommon feature if

regard is had to the manner in which claims for enhanced

compensation in land acquisition cases are defended in courts on

behalf of the State. It is observed that if the courts were to accept

such statements of witnesses as true merely because they are not

subjected to cross-examination or effective cross-examination or

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94

because evidence in rebuttal thereof has not been adduced, it would

amount to doling out public money to the claimants far in excess of

their legitimate entitlement for just compensation payable for their

lands. If such situation is prevented by courts dealing with claims for

compensation by testing the statements of witnesses for claimants on

the basis of probabilities, the Courts will have performed the duty

justly expected of them. Hence, no Court which tests the oral

evidence of the claimants on the touch-stone of probabilities calling

into aid, its experience of life, men and matters and find such

evidence to be untrustworthy, the same cannot be found fault with

In Bhagwan Singh vs. State of Punjab(I) (supra) (Para 22), the Hon’ble

Apex Court states that resort to Section 145 of Evidence Act would

only be necessary if the witness ‘denies’ that he made the former

statement. In that event it would be necessary to prove that he did,

and ‘if the former statement was reduced to writing,’ then Section

145 requires that his attention must be drawn to those parts which

are to be used for contradiction. But that position does not arise

when the witness admits the former statement. In such a case all

that is necessary is to look to the former statement of which no

further proof is necessary, because of the admission that it was

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95

made. Here, We find that Shri Gandhi admits all his reports at Exh.

204,205 and Exh.195. We accordingly have refused to accept his

evidence and report on valuation of structures. The land value also

has been worked out by us independently. In this situation, as

landowners have failed to bring anything on record to show that the

valuation of big bungalow or other bungalow as per report at

Exh.195, or then Exh. 195 can be looked into and have failed to

substantiate their demand for enhancement of compensation on that

account, no relief in that regard can be given to them. Merely

because the valuation by the Land Acquisition Officer and grant of

compensation for structures is not found to be substantiated,

burden cast by law on Landowners is not discharged. Hence, the

land owners cannot claim additional compensation for these two

structures.

49. We will still briefly consider the valuation exercise

undertaken by Shri kale and Shri Gandhi. Later has used rate of Rs.

165/-per Sq. ft. flat for entire big bungalow and Rs. 150/-per sq. ft.

for bungalow no. 2 to reach its total replacement cost. This rate is

same in Ex. 204 as also Exh. 195. He has used 4.5% on age 54 years

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96

of both these structures to calculate depreciation. There is no

explanation or justification for using this figure or the calculating

less depreciation in his evidence or report. When he takes total life

of both these structures to be 85 years , replacement costs per year

work out to Rs. 17,385/-for big bungalow and Rs. 5,121/-for

second bungalow. Rs. 9,38,799/- is therefore depreciation for big

bungalow for 54 years and Rs. 2,76,543/- is therefore total

depreciation for bungalow 2. Even if the salvage value at the end of

the period of utility of 85 years is presumed “nil”, still the when Rs.

9,38,799/- is deducted from Rs. 14,77,740/-, Rs. 5,38,961/- works

out to be the value of big bungalow as against Rs. 11,60,064/-stated

by Shri Gandhi . Similarly, when Rs. 2,76,543/-is reduced from Rs.

4,35,300/-, Rs.1,58,757/- is the cost of bungalow no. 2 while he

mentions it to be Rs. 3,41,722/-. Thus total replacement costs of

both these bungalows comes to Rs. 6,97,718/- only. Thus even

presuming or believing entire exercise of Shri Gandhi, the total costs

of both these buildings is Rs.6,97,718/- while he takes it at

Rs.15,01,786/-. His method or calculation do not find any support

at-least on record. Though his report shows that both these

bungalows have completed more than half of their life, depreciation

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97

shown by him is not proportionate as he has used full replacement

cost method. For both bungalows, depreciation is little less than

25% of replacement cost. Depreciation amount is 21.49% of the

value worked out by him. The factors that prolong the life and utility

of the building, such as good maintenance, necessarily influence and

bring down the rate of depreciation are not on record. There is no

evidence of timely or annual repairs. On the contrary, State had

claimed adjustment of Rs. 1,50,000/- spent by it on

renovation/repairs of big bungalow and Trial Court has not

accepted it. Methodology of Shri Gandhi runs counter to similar

principles illustrated in “Administrator Genl. of West Bengal v.

Collector, Varanasi”(supra) by Hon’ble Apex Court.

50. Shri Kale had worked out cost of ground floor of big

bungalow at Rs. 5,98,900/-and of first floor at Rs. 2,94,000/-. Value

of bungalow no. 2 reached by him is 2,47,980/- only. He has then

taken the age of building to be 69 years and thereafter claims to

have calculated depreciation as per page 14.40 of civil engineering

hand-book. His computation does not disclose the total life period

looked into by him. However, it appears to be 100 years. His

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98

exercise is not accepted for valid reasons by Trial Court and also

does not help in determination of market value. But as burden has

not been discharged by the Landowners, the grant in award can not

be disturbed. His cross examination is not sufficient to prove any

procedural or other error in method adopted by him or its result.

LAO had accepted his calculations and then deducted Rs. 1,50,000/-

allegedly spent on renovation by State. He therefore awarded Rs.

3,78,000/- as compensation towards structures. Trial Court has set

aside this sum of Rs. 1,50,000/- as said expenditure has not been

established at all. Evidence on record does not establish any such

sum of Rs. 1,50,000/- or any other sum spent on renovation. We

therefore maintain this finding of Trial Court and grant Landowners

Rs. 5,28,000/- towards the structures. Point No. D is answered

accordingly.

51. As to Point No. E :- As a result of this discussion, We find

the quantum of compensation payable to Landowners under various

heads as under :–

     A.           Towards Lands:-                         Rs.  4311991.00.




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                                 99




                                                                           
     B-          Towards structures :- 
                 Maintained as per award. 




                                                   
                 This includes Rs. 22,120/-towards 
                 fence but nothing 
                 towards Trees.                          Rs.   528000.00.




                                                  
     C-          Towards Trees:-                        Rs.       2990.00.

                 Sub-Total of A to C        =           Rs. 4842981.00.  




                                     
     D-          30% solatium u/S 23(2)
                    
                 of the  Act 
                 on Rs.    4842981.         =         Rs.  1452894.00.
                   
                 Total   of A to D            =         Rs.  6295875.00.  

                 Landowners have already 
                 received                   =            Rs.  2030116.00.
      


     E.               Net amount of compensation 
   



                      payable on  plot no. 1
                      (Land+Structure+Trees+ =          Rs. 4265759.00.    
                       Solatium)





     F.          Addl. component at 12% on 
                 Rs.  4842981/- from 19/2/1984 
                 till 6/8/1985  i.e., for
                 1 year and  5 months and  
                 19 days (533 days)     =          Rs.   848649.00.





      
                 Compensation towards plot 
                 1 and  Rental compensation 
                 - E and  F.                 =                Rs. 5114408.00.




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                                      100


Interest at 9% on this sum of Rs. 51,14,408/- from 6/8/1985 to

5/8/1986 and thereafter, at 15% till date of its payment to

Landowners.

If Landowners have already recovered anything in excess

of what We have found them entitled to, State Government is free to

recover the same as per law with 15% interest on it from date on

which it was paid by it till its recovery back by State Government. .

Accordingly, We proceed to pass following order:–

ORDER.

Landowners are held entitled to receive :–

1. Rs. 42,65,759.00. (Forty Two Lac Sixty-Five Thousand Seven

Hundred Fifty Nine Only) towards acquired lands, structures,
trees and solatium.

2. Rs. 8,48,649.00 (Eight Lac Forty Eight Thousand Six Hundred

Forty Nine only) towards 12% additional component under
Section 23(1-A) of Act.

3. Interest at 9% on above sum of Rs. 51,14,408.00 (Fifty One
Lac Fourteen Thousand Four Hundred and Eight Only) from

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101

6/8/1985 to 5/8/1986 and thereafter at 15% till date of its

payment to Landowners.

4. Appeal of State is partly allowed and that of Landowners is
also dismissed. However, in the circumstances, parties to bear

costs as incurred.

5. If Landowners have already recovered anything in excess from

State , State Government is free to recover that excess sum as

per law with 15% interest on it from date on which it was
paid to Landowners till its recovery back by State

Government.

6. Judgment dated 31/12/1999 delivered by Joint Civil Judge,

Senior Division, Amravati in Reference proceedings land
acquisition case 13 of 1988 is accordingly modified and

substituted.

7. Decree be drawn accordingly in both matters.

                     JUDGE                                                JUDGE

     Dragon. 




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Mr. Vijay Raghurama Shetty vs Baun Foundation Trust And Others on 26 September, 2011

Bombay High Court
Mr. Vijay Raghurama Shetty vs Baun Foundation Trust And Others on 26 September, 2011
Bench: R. M. Borde
MP                                         1                                       CRA530_11

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                           CIVIL APPELLATE JURISDICTION




                                                                                      
                 CIVIL REVISION APPLICATION NO. 530 OF 2011




                                                              
     Mr. Vijay Raghurama Shetty                         ...        Applicant
           Versus
     Baun Foundation Trust and others                  ...         Respondents




                                                             
     Mr. Navroz Seervai, Senior Counsel with Mr. Ashutosh Kumbhkoni, Senior
     Counsel and Mr. Z. Andhyaruzina, Advocate with Mr. Amit Vyas, Advocate and
     Mr. Sanjay Israni, Advocate with Mr. S. Singh and Ms. Nikita Ajwani with Mr.




                                              
     Melvyn Fernandes, Advocates i/b. M/s. Rajani Associates for the Applicant.
     Mr. D. D. Madon, Senior Counsel with Mr. Ravi Gandhi, Advocate i/b. M/s.
                            
     Kanga & Co. for Respondents.
                           
                                               CORAM : R. M. BORDE, J.

MONDAY, SEPTEMBER 26, 2011

ORAL JUDGEMENT:

Rule. Rule made returnable forthwith.

2. The revision petitioner – original defendant is taking exception to
the order passed by the Judge, City Civil Court, Bombay on 01.07.2011 in Suit

No. 1210 of 2011 holding that the Court does have jurisdiction to try and
entertain the Suit.

3. The instant revision petition is presented by the original defendant
in Suit No. 1210 of 2011. The original plaintiff No. 1 is Baun Foundation Trust
(“said Trust” for short) which is a Public Charitable Trust registered under the
provisions of the Bombay Public Trust Act, 1950 (“BPT Act” for short). It is
not disputed that the original plaintiff No.2 is the founder trustee of the said
Trust as also the original plaintiff Nos. 3 to 5 are the trustees of the said Trust.
According to the plaintiffs, the defendant was also the trustee of the said Trust

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MP 2 CRA530_11

until his term came to an end. The said Trust was formed in 1964 with an object
to establish and run a hospital. The plaintiff No.2 and his wife late Smt. Shalini

Shetty are amongst the founders of the said Trust. In the year 1990, additional
trustees were taken in by the said Trust and those trustees are petitioner

(defendant) and the plaintiff No.3 / respondent No.3. The defendant is son of
plaintiff No.2 and Smt. Shalini Shetty. After inclusion of the additional trustees,
a change was reported to the Charity Commissioner on 21.03.1990. According

to the plaintiffs, as per the provisions contained in the Constitution of the said
Trust, the trustees are to be appointed for the period of three years. It is also
contended that there arose some dispute between the defendant and the other

trustees and it is alleged that the defendant started interfering in the day-to-day

affairs of the said Trust. It is also averred in the plaint that the term of the
defendant came to an end on 21.03.2011, and thereupon, the remaining trustees

of Trust recorded a decision not to renew the term of the defendant. Since, it is
alleged, that the defendant was interfering in the administration of the said
Trust, the Suit was presented by plaintiff Nos. 1 to 5 claiming decree of

injunction against him. It is also contended in the plaint itself that Suit is
entertainable in the absence of prior sanction of Charity Commissioner as

provided under Sections 50 and 51 of the BPT Act. The prayers made in the
plaint, and more specifically, prayer clauses (a) and (b) are quoted below:

a. That the Defendant, his servants, agents, or any person or

persons claiming by, under or through him be restrained by a
permanent order and injunction of this Hon’ble Court from
threatening the Plaintiffs in any manner and be further restrained
from entering upon and remaining in the premises situated at the
Plaintiff No. 1’s premises at Cumballa Hill Hospital 93-95, August

Kranti Marg, Mumbai 400 036, the Plaintiff No.2 at his office at
Cumballa Hill Hospital 93-95, August Kranti Marg, Mumbai 400
036 and his residence at 1-B, Manek, 11, L.D. Ruparel Marg,
Mumbai- 400 006, the Plaintiff No.3 at her residence at Asha Mahal,
1st Floor, Flat No.6, Nowrojee Gamadia Road, Mumbai-400 026, her
office at 107-109, Konark Shram, 156, M. M. Malviya Road, Tardeo,
Mumbai 400 034 and also at her office at Messrs. Shalini
Enterprises, Block No.5, Ground Floor, Mishree Mansion, August
Kranti Marg, Mumbai 400 036, the Plaintiff No.4 at his residence at
33, Tenerife, Little Gibbs Road, Malabar Hill, Mumbai 400 014 and
the Plaintiff No.5 at his residence at 403/3 Radhakrishna Nagar,
Malpa Hill No.3, Andheri (East), Mumbai 400 093;

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 MP                                        3                                    CRA530_11

              b.      That the Defendant be directed by a permanent mandatory

order of injunction from interfering with and / or causing
disturbance in day to day affairs of the Plaintiffs business and / or

causing any harassment to the Plaintiffs and / or their staff members
in the premises situated at the Plaintiff No. 1’s premises at Cumballa
Hill Hospital 93-95, August Kranti Marg, Mumbai 400 036, the

Plaintiff No.2 at his office at Cumballa Hill Hospital 93-95, August
Kranti Marg, Mumbai 400 036 and his residence at 1-B, Manek, 11,
L.D. Ruparel Marg, Mumbai- 400 006, the Plaintiff No.3 at her
residence at Asha Mahal, 1st Floor, Flat No.6, Nowrojee Gamadia
Road, Mumbai-400 026, her office at 107-109, Konark Shram, 156,

M. M. Malviya Road, Tardeo, Mumbai 400 034 and also at her office
at Messrs. Shalini Enterprises, Block No.5, Ground Floor, Mishree
Mansion, August Kranti Marg, Mumbai 400 036, the Plaintiff No.4
at his residence at 33, Tenerife, Little Gibbs Road, Malabar Hill,
Mumbai 400 014 and the Plaintiff No.5 at his residence at 403/3

Radhakrishna Nagar, Malpa Hill No.3, Andheri (East), Mumbai 400
093;

4. Defendant objected to the jurisdiction of the Civil Court by

presenting an application. According to the defendant, the issues involved in
the Suit are required to be dealt with by the authorities constituted under the
BPT Act. It is also the contention of the defendant that the Suit claiming an

order of injunction against him is not maintainable without securing prior
sanction of the Charity Commissioner as required under Section 51 of the BPT

Act. The objection tendered by the defendant was considered by the learned
Judge of the City Civil Court. In the absence of there being any evidence led by

the parties in support of the respective contentions raised by them, the Trial
Court recorded the finding that the Court has jurisdiction to entertain the Suit
while considering Exhibit-2, which order is impugned in this Civil Revision
Application.

5. Section 80 of the BPT Act relates to bar of jurisdiction on the
Civil Court which provides thus:

“Section 80 : Bar of jurisdiction
Save as expressly provided in this Act, no Civil Court shall have
jurisdiction to decide or deal with any question which is by or under
this Act to be decided or dealt with by any officer or authority under
this Act, and in respect of which the decision or order of such
officer or authority has been made final and conclusive.”

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MP 4 CRA530_11

6. Section 50 of the Act relates to presentation of Suits by or against
or relating to public trusts or trustees or others. If the Suit is for any declaration

or injunction in favour of or against a public trust or trustee 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
contentious or not in the Court within the local limits of whose jurisdiction the
whole or part of the subject matter of the trust is situate to obtain a decree for

any of the following reliefs:

(a) to (o)

(p) declaration or denying any right in favour of or against a

public trust or trustee or trustees or beneficiary thereof and
issuing injunctions in appropriate cases; or

(q) …

Clause (p) is relevant for consideration which relates to declaring

or denying any right in favour of or against, a public trust or trustee or trustees

or beneficiary thereof and issuing injunctions in appropriate cases.

7. Section 50 further provides 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. Thus, the suit as contemplated by
Section 50(iv)(p) can be instituted after securing consent in writing of the

Charity Commissioner by one or more of such persons. It is contended that for
institution of the suit prior permission of the Charity Commissioner is essential
and unless such permission is secured, the suit is not entertainable.

8. The Counsel appearing for the original defendant – revision
petitioner contends that the name of the defendant appears in the Schedule 1
which is maintained as provided under Section 17 of the BPT Act read with

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MP 5 CRA530_11

Rule 5 of the Rules framed thereunder. It is thus contended that until the name
of the defendant appears in the said Schedule, he shall be deemed to be a trustee

of the Trust. It is also contended that considering the averments noted in the
plaint, it is evident that the defendant was adopted as a trustee of the said Trust

since 21.03.1990 and he continued until the year 2009. In paragraph 3 of the
plaint, it is stated that the defendant was inducted as a trustee in the year 1990,
and it is further noted in paragraph 5 of the plaint that in the year 2009, dispute

had arisen between plaintiff No. 2 and the defendant whereby the defendant had
started interfering in the day to day affairs of the said Trust thereby acting
contrary to the objects of the said Trust. Thus, it is evident that the defendant

has continued to be a trustee since the year 1990 till the year 2009. In para 7 of

the plaint it is recited that since the harassment, obstructions and interference
had continued and also since the same had reached beyond limits in March,

2011 and as the term of the defendant had ended, the then trustees had
unanimously decided not to renew the term of the defendant. Accordingly, a
resolution came to be passed in the meeting of the Trustees held on 24.03.2011,

wherein the term of the defendant as a trustee came to an end since the same
was not renewed by the then trustees. It is also informed that the change report

has been tendered with the Charity Commissioner in respect of the occurrence
of the change i.e. cessation of the trusteeship of defendant.

9. Section 22 of the BPT Act deals with the aspect of the occurrence
of change and it is the Charity Authorities established under the BPT Act are
empowered to hold an inquiry in respect of the occurrence of the change and

render a decision in that regard. It is stated that the change in respect of the
Constitution of the trustees of the said Trust is reported to the Charity
Commissioner and the defendant has also raised an objection with the Charity
Commissioner objecting to the change. It is the contention of the defendant that
it is only the Charity Authorities who are authorised to decide the aspect as
regards whether a person continues to be a trustee of the Trust and whether
change report is worthy of acceptance or not. It is the exclusive jurisdiction of

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MP 6 CRA530_11

the Charity Commissioner to decide the related issue. The Counsel appearing
for the revision petitioner invited my attention to the pleading in the plaint and

contended that considering the pleadings and the provisions of Section 17 of
the BPT Act read with Rule 5 of the Rules as also the entries in the Schedule 1,

it is to be presumed that the defendant is a trustee of the trust until his name is
removed from Schedule 1 and the issue as to whether he continues to be a
trustee or not is required to be dealt with by the Charity Authorities having

jurisdiction to deal with the issues. It is contended that in order to determine the
controversy involved in the suit, and with a view to consider the objection
raised by the defendant as regards the jurisdiction of the Civil Court to entertain

the dispute, a finding needs to be recorded as to whether the defendant is a

trustee of the trust or not. It is contended that whether the defendant is a trustee
of the trust, is a jurisdictional fact and this jurisdictional fact has to be

considered by the Court only after receiving the evidence. In the instant matter,
there was no evidence placed on record on jurisdictional aspect of the matter
and the decision rendered by the Trial Court in the absence of determination on

the jurisdictional fact is unsustainable. Reliance is placed on the judgment in
the matter of Carona Limited Vs. Parvathy Swaminathan and Sons reported in

(2007) 8 SCC 559. In paragraph Nos. 26 to 28 of the judgment, the Apex Court
has observed thus:

“Jurisdictional fact

26. The learned counsel for the appellant company submitted that
the fact as to “paid-up share capital” of rupees one crore or more
of a company is a “jurisdictional fact” and in absence of such fact,
the court has no jurisdiction to proceed on the basis of the Rent

Act is not applicable. The learned counsel is right. The fact as to
“paid-up share capital” of a company can be said to be a
“preliminary” or “jurisdictional fact” and said fact would confer
jurisdiction on the court to consider the question whether the
provisions of the Rent Act were applicable. The question,
however, is whether in the present case, the learned counsel for
the appellant tenant is right in submitting that the “jurisdictional
fact” did not exist and the Rent Act was, therefore, applicable.

27. Stated simply, the fact or facts upon which the jurisdiction of
a court, a tribunal or an authority depends can be said to be a
“jurisdictional fact”. If the jurisdictional fact exists, a court,

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MP 7 CRA530_11

tribunal or authority has jurisdiction to decide other issues. If
such fact does not exist, a court, tribunal or authority cannot act. It
is also well settled that a court or a tribunal cannot wrongly

assume existence of jurisdictional fact and proceed to decide a
matter. The underlying principle is that by erroneously assuming
existence of a jurisdictional fact, a subordinate court or an inferior

tribunal cannot confer upon itself jurisdiction which it otherwise
does not posses.

28. In Halsbary’s Law of England (4th Edn.), Vol. 1, Para 55, p.
61; Reissue, Vol. 1(1), Para 68, pp. 114-15, it has been stated:

“Whether the jurisdiction of a tribunal is dependent on the
existence of a particular state of affairs, that state of affairs may be
described as preliminary to, or collateral to the merits of, the
issue. If, at the inception of an inquiry by an inferior tribunal, a
challenge is made to its jurisdiction, the tribunal has to make up

its mind whether to act or not and can give a ruling on the
preliminary or collateral issue; but that ruling is not conclusive.”

The existence of a jurisdictional fact is thus a sine qua non or
condition precedent to the assumption of jurisdiction by a court or

tribunal.”

10. In the instant matter, whether the defendant continues to be a
trustee of the said Trust is a jurisdictional fact and determination of the said

question is a sine qua non or condition precedent to arrive at findings as regards

the jurisdiction of the Civil Court to entertain the dispute. Reliance is also
placed on the judgment of the Division Bench in the matter of Satpuda Tapi
Parisar Sahakari Sakhar Karkhana Limited Vs. Jagruti Industries and another

reported in 2008 (5) Bom.C.R. page 284. In sub para 12 of paragraph No.9 , it
is quoted thus:

12. We would, at this stage, refer to the precise principle laid
down by this Court is the case of (Fazlehussein Vs. Yusufally),

AIR 1995 Bom.55, wherein the Court has, after observing that the
averments made in the plaint would be sufficient to decide the
question of jurisdiction, held as under:-

“In considering the preliminary issue, the Court must
look into the averments in the plaint and consider any
objections which the defendant may choose to raise
against the maintainability of the action on those
averments. The question of jurisdiction which is raised
by way of a demurrer has always to be decided on the
allegations made in the plaint and not on the
contentions that the defendant may raise. It is true that

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MP 8 CRA530_11

if the jurisdiction of the Court depends upon the proof
of a fact and the question as to the existence or
otherwise of that fact is canvassed, the parties may lead

evidence in support of their respective cases before the
preliminary issue as to jurisdiction of the Court is
decided.”

The jurisdiction of the Court depends upon the proof of a fact or a
question as to whether defendant is a trustee of the trust and unless the parties

lead evidence in support of their respective contentions, any decision on
preliminary issue cannot be arrived at. According to the revision petitioner, the
decision arrived at by the Civil Court, without deciding the jurisdictional fact as

to whether the defendant continues as a trustee of trust, is erroneous.

11.

It is contended by the respondents-original plaintiffs that as per
the provisions of the Constitution of the said Trust, there are two categories of

members. The plaintiff No.2 is the founder trustee or the trustee of the ‘other
part’ and continues to remain as a life time trustee. Whereas, the other trustees
including the defendant can be categorized who can continue for a period of

three years. Clause 9(b) of the Constitution of the Trust provides that save as

expressly provided in sub-clause (a) above, all the trustees or trustee for the
time being of the said Trust shall on the expiration of three years from the date
of their or his appointment as trustees or trustee as hereinafter provided retire

from the trust of these presents. Thus, it is contended that the term of the trustee
i.e. the defendant has come to an end in March 2009 after expiration of the
period of three years of his appointment.

12. It is a matter of record that while the issue of jurisdiction of the
Court was taken up for consideration, the resolutions pertaining to continuation
of defendant as a trustee of the trust at the interval of every three years were not
placed on record. However, the same appears to have been placed on record, at
a subsequent stage, after the Court rendered decision on the issue of jurisdiction.
As stated above, there is an averment in paras 3 to 5 of the plaint that the

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MP 9 CRA530_11

defendant was inducted as trustee of the trust in the year 1990 and the defendant
continued until the year 2009. Thus, in order to determine the jurisdiction of the

Court to deal with the issue as to whether the defendant discontinued as a
trustee of the Trust on expiry of the period of three years or whether he

continues by virtue of his inclusion of name in Schedule 1 maintained by the
Charity Authorities and by virtue of provisions of Section 17 of the BPT Act
read with Rule 5 of the Rules, is a matter required to be dealt with and decided

by the Civil Court on recording evidence of the parties on jurisdictional fact.
The issue as to whether the defendant continues to be a trustee of the trust is a
matter required to be dealt with by the Court before arriving at the decision as to

whether the Civil Court has jurisdiction to entertain and decide the dispute. It is

the argument advanced by the original defendant (revision petitioner herein)
that the reported change in respect of deletion of name of defendant from the list

of trustees of the Trust is a matter pending adjudication before the Charity
Authorities and the defendant has raised an objection before the appropriate
Charity Authority for effecting change and so such question is required to be

dealt with by Charity Authorities. The issue as to whether the change as
occurred in the constitution of the Trust is required to be dealt with by the

Charity Authorities as contemplated by Section 22 of the BPT Act. The Civil
Court needs to apply mind to the facts of the case as well as relevant provisions
of the BPT Act and then arrive at conclusion as to whether Civil Court can have

jurisdiction to deal with issues involved in the Suit.

13. The learned Counsel appearing for the respondents vehemently

contended that it is not the case of the continuation or discontinuation of the
defendant as a trustee of the Trust. However, the defendant ceases to be a
trustee by virtue of operation of the provisions of the said Constitution on the
expiry of period of three years from the date of his appointment. Once he
ceases to be a trustee of the Trust, his status is rendered as ‘trespasser’, and as
such, the Suit is entertainable. As stated above, the jurisdictional fact as to
whether the defendant continues to be a trustee of the Trust or not is required to

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MP 10 CRA530_11

be dealt with by the Civil Court after receiving evidence that will be led by the
parties in that behalf. As stated above, the resolutions indicating that during the

period of last twenty years, the defendant was continued as a trustee of the Trust
by the adopting resolutions from time to time, were not before the Court when

the decision was rendered on the issue. In these circumstances, it would not be
proper for me to comment upon the authenticity or otherwise of the resolutions
placed on record before the Trial Court after the decision was rendered. It

would be open for the learned Judge of the City Civil Court to deal with the
documentary and other evidence that would be placed before him for
determination of the jurisdictional fact as to whether the defendant continues to

be a trustee of the Trust.

14.

In view of the discussion as above, I am of the view that the

matter is required to be remitted back to the Civil Court for rendering a decision
in the matter afresh and for recording findings on the jurisdictional fact as
regards the trusteeship of the defendant.

15. It is the contention of the respondent that merely because the

change report is presented, it does not mean that the change has not occurred.
The change in the Constitution of the Trust takes place on the date of adoption
of resolution. In this regard, a reliance is placed on the judgment in the matter

of Vijay K. Mehta and another Vs. Charu K. Mehta and others reported in 2008
(5) ALL MR page 366 so also in the matter of Madanrao s/o. Nanasaheb
Chavan Vs. State of Maharashtra and others reported in 2002(4)Mh.L.J. Page

872. There can be no dual opinion about the proposition that the change takes
place once the resolution is adopted. However, in the instant matter, for the
reasons recorded above, I am of the opinion that the jurisdictional fact as to
whether the defendant ceases to be a trustee of the Trust is to be determined by
the Civil Court after taking into consideration various aspects and the questions
of fact on the basis of interpretation of the provisions of the BPT Act need to be
determined by Civil Court. The matter, therefore, needs to be remitted back to

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MP 11 CRA530_11

the Civil Court for determination of the questions raised in matter and for
rendering decision afresh on the point of jurisdiction of Civil Court to entertain

Suit.

16. For the reasons recorded above, the Civil Revision Application
needs to be allowed and same is accordingly allowed. The order passed by the
Judge, City Civil Court, Bombay on 01.07.2011 in Suit No. 1210 of 2011 below

Exhibit-2 is quashed and set aside and the matter is remitted back to the Trial
Court for rendering decision afresh in accordance with law. The learned Trial
Court shall decide the issue afresh as expeditiously as possible, preferably

within a period of eight weeks from today. Rule is accordingly made absolute.
No costs.

17. The learned Judge of the Trial Court, while rendering decision in
the matter, shall not be influenced by view adopted by him earlier while
deciding Exhibit-2 and the observations made by this Court touching the merits

of the controversy.

18. All pending Civil Applications, if any, stand disposed of
accordingly.

(R.M. BORDE, J)

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Union Of India vs M. M. Rangari on 26 September, 2011

Bombay High Court
Union Of India vs M. M. Rangari on 26 September, 2011
Bench: B. P. Dharmadhikari, A.P. Bhangale
                                    1


         IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                                        
                  NAGPUR BENCH : NAGPUR




                                                
         Writ Petition No.  5950 of 2010.




                                               
    Petitioners       :   1) Union of India, through the Secretary,




                                       
                          Ministry of Defence, D (Fy-II), Sena 
                          
                          Bhawan, New Delhi

                          2) The DGOF/Chairman, Ordnance Factory
                         
                          Board, 10/A, Shaheed K. Bose Road, 

                          Kolkata
       


                          3) The General Manager, Ordnance
    



                          Factory, Chanda





                          versus

    Respondents :         1) M. M. Rangari, Chargeman Grade-II,

Ordnance Factory, r/o Jatpura, Ward No.3,

Ghorkhiedki, Chandrapur

2) J. R. Chimurkar, DBW (HS), Ordnance

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2

Factory, Chanda, r/o Gautam Nagar, Near

Dr Hakke House, Bhadrawati, District

Chandrapur

3) B.K. Chirde, Orderly in Ordnance Factory,

Chanda, r/o near Hanuman Mandir, Bal Wadi,

Krishna Nagar, Mul Road, Chandrapur

4) A. R. Majumdar, Supervisor “B” in Ord-

ig nance Factory, Chanda, r/o Janki Niwas,

Opp. Dr Milmile Hospital, Guru Nagar,

Bhadrawati, Dist. Chandrapur

5) N. G. Bele, DBW (HS-I) in Ordnance

Factory, Chanda, r/o Sindhi Panchayat

Bhawan, Zade Complex, ram Mandir Road,

Chandrapur

6) R.B. Tiwari, Labourer “B” Grade in

Ordnance Factory, Ambajhari, r/o Benu

Nagar, Datta Wadi, Plot No. 58, Nagpur

7) P. K. Khedkar, F.E. Driver Gr.II in

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3

Ordnance Factory, Chanda, r/o near

Tendupatta Godown, Sriram Nagar, Plot No.

199, Bhadrawati, Dist. Chandrapur

8) K. K. Tikale, DBW (HS) in Ordnance

Factory, Chandra, r/o near Santosh Kirana,

Zade Plot, Ghutkala Ward, Bhadrawati,

District Chandrapur
ig 9) Smt Mangala N. Dhakate, TGT in Ord-

nance Factory School, Ordnance Factory,

Chanda, r/o Anchaleshwar Ward,

Kannamwar Chowk, Chandrapur

10) Gangaram B. Gurle, Supervisor “B”

(NT) in Ordnance Factory, Chanda, r/o

Babupeth Ward No. 3, Chandrapur

11) N. N. Meshram, Machinist (HS) in

Ordnance Factory, Chanda, r/o Manjusha

Layout, Pradhan Society, Bhadrawati,

District Chandrapur

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4

12) S. P. Urkude, FE Driver “A” in Ordnance

Factory, Chandra, r/o c/o P. B. Urkude, Amre

Kirana Stores, Zade Plot, Bhadrawati,

District Chandrapur

Mr S. K. Mishra, Assistant Solicitor General for petitioners

Mr B. Lahiri, Advocate for respondents

Coram : B. P. Dharmadhikari & A. P. Bhangale, JJ

Dated : 26th September 2011

Judgment (Per A. P. Bhangale, J)

1. Rule. Heard forthwith by consent of parties.

2. The short question that falls for consideration in this

Petition is whether the employees of Ordanance Factories the

Petitioner-Union of India, viz., the Ordanance factory Board are

entitled to House Rent Allowance (HRA) after they had constructed

their own respective houses by arranging loans and after shifting to

their own accommodation on the ground that they have not obtained

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5

“non-availability Certificate” in respect of official residential

accommodation . The answer must be given in the negative for the

following reasons.

3. It is not in dispute that Employees who have applied for

allotment of Government accommodation from the General pool of

residential accommodation and have not been allotted their entitled

type of accommodation due to non-availability of the accommodation

would be entitled to claim House Rent Allowance(HRA). The

submission made on behalf of the Petitioner is that the Central

government Employees who are offered official residential

accommodation but they refused to occupy the same would not be

entitled to claim HRA.

4. The respondent-employees are occupying various posts i.e

Machinist , Trained Graduate Teacher, Supervisor, Orderly, Laborers B’

Grade etc. in the Ordanance factories controlled by Petitioner-Union

of India/Ordanance Board. The respondents have constructed their

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6

respective houses after arranging Loan and after Construction of their

houses shifted to their own accommodation. Thus they are not

occupying the government accommodation though available and

offered to them by the Administration. Respondents made a

grievance that after shifting to their own houses the HRA was stopped

and has not been paid to the respondents by the Petitioner .The

Respondents after their request for HRA was rejected by the Petitioner

on the ground that they had not obtained the Non -availability

certificates as pre-requisite condition for the payment of HRA,filed

independent Original Applications O.A. no 2001/2010 to 2012/2010

raising grievance of non payment of HRA. The original Applications

filed by the Respondent no 2 to 13 were allowed by the Central

Administrative Tribunal by the impugned order .The Petitioner

challenged it before us mainly on the ground that the Office

Memorandum No. 120341/88-Pol .III dated 27.06.2001 of the

Government of India, Directorate of estates ,New Delhi , would govern

the present case. The relevant portion of the said paragraph reads as

follows:

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7

“—- It has been found that the General Pool Accommodation in

Certain types are presently surplus in five cities:Kolkata, Shimla,

Faridabad,Ghaziabad and Nagpur. It has therefore been decided that

the Govt Servants who are eligible for General Pool Accommodation

but who do not submit applications for such accommodation or those

who after submitting such applications refuse to accept the

accommodation offered/allotted or those who after having accepted

accommodation surrender it , may be paid HRA, if otherwise

admissible, without obtaining ‘No Accommodation Certificate’ from

the Directorate of Estates or its regional offices as the case may be in

respect of all types of accommodation at the under mentioned

stations:

    1. Delhi                4. Chandigarh





    2 Mumbai            5 Bangalore





    3 Chennai             6. Indore----"

In another Govt of India Ministry of Finance Office memorandom no F.

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8

12034/1/2007 -Pol.III, dated 14/11/2007 there was review of

demand- availability situation in cities having General Pool

accommodation to determine the admissibility of HRA to the Central

Government employees. In the city of Nagpur since it has a surplus

stock of Central Government ‘s General pool residential

accommodation (GPRA)administered by Directorate of Estates ,

employees eligible for the same shall be able to draw HRA only if

they can produce a ‘No Accommodation Certificate” The policy is

applicable to the Central Government Employees in Nagpur amongst

other notified cities .Necessary directions in this regard as to the

current policies are issued by the central government to the heads of

the departments and heads of all the offices concerned.

In other words therefore for Nagpur city obtaining ‘No

Accommodation Certificate’ for government servant is necessary to

claim HRA as may be payable or admissible.

It is contended on behalf of the Petitioner that the Tribunal (CAT) was

in error to pass the impugned order without considering the settled

principle of law and HRA and CCA general rules and guidelines by

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9

office memorandums issued from time to time. Central

administrative Tribunal making reference to it’s earlier decisions

observed that the requirement of obtaining the “No Accommodation

Certificate “as a pre-requisite is not shown to have been emanated

from the binding law or statutory rules while allowing the Original

applications filed by the respondents herein . Our attention is brought

to the ruling by the Apex Court in Director, Central Plantation crops

Research Institute vs.. M Purushottaman and others reported in AIR

1994 SC 2541. It is explained thus in Para 4 :-

“It must be remembered in this connection that the

Government or the organisation of the kind of the

appellant spends huge public funds for constructing

quarters for their employees both for the convenience of

the management as well as of the employees. The

investment thus made in constructing and maintaining the

quarters will be a waste if they are to lie unoccupied. The

HRA is not a matter of right. It is in lieu of the

accommodation not made available to the employees. This

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10

being the case, it follows that whenever the

accommodation is offered the employees have either to

accept it or to forfeit the HRA, The management cannot be

saddled with double liability, viz., to construct and

maintain the quarters as well as to pay the HRA. This is the

rationale of the provisions of paragraph 4 of the said

Government Office Memorandum. It is for this reason

again that paragraph 4 [b] (I) provides that the HRA shall

not be admissible to those who occupy accommodation

provided for them as well as to those to whom

accommodation has been offered but who have refused it.”

In para 9, Honourable Supreme Court further

observed:

“9. The HRA would be covered by the definition of

Compensatory Allowance. It is compensation in lieu of

accommodations. This definition itself further makes it

clear that compensatory allowance is not to be used as a

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11

source of profit. It is given only to compensate for the

amenities which are not available or provided to the

employee. The moment, therefore, the amenities are

prodiced or offered, the employee should cease to be in

receipt of the compensation which is given for want of

it….”

5. Thus it appears that HRA is a statutory right, and can be

subjected to restrictions which are reasonable. Furthermore, it

appears clear that the employee must have a right to get House Rent

Allowance (HRA ) as per existing Rules or Decisions of The

Government of India which have binding force or a contract. It is not

a matter of right, it is an compensatory allowance given by an

employer to an employee towards the rental accommodation expenses

of the employee when Government is unable to provide residential

accommodation suitable for the residence of it’s employee. The

employee if own his property he may not be entitled to claim the

HRA, because HRA is paid to Central Govt. employees to compensate

them partly for the especially higher rents which they have to pay for

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hired or rented residential accommodation in big cities, but not as a

source of profit.. HRA is paid at different slab rates in different cities

and for this purpose cities have been classified with reference to their

growth and population. For the drawl of HRA, a Govt. servant has to

incur some expenditure on rent/contribute towards rent or

pay/contribute towards house or property tax and furnish a certificate

to that effect as per Annexure-II in Para.8 of Swamy’s Compilation of

FR & SR, Part-V, HRA and CCA. In our opinion the Central

government regulations which are in force unless they are declared as

arbitrary or illegal would govern the Central government

Employees. In our opinion unless a binding law or specific Regulation

governing is pointed out for payment of HRA to the respondents

employees of Ordanance Factories the Petitioner-Union of India, (viz.,

the Ordanance factory Board ) the respondents are not entitled to

claim House Rent Allowance (HRA) as a matter of right after they

had constructed their own respective houses by arranging loans and

after shifting to their own accommodation without obtaining the ‘No

Accommodation Certificate’ (NAC) from the Estate officer concerned.

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13

Prima facie in our opinion the pre-requisite of NAC as laid down in

the office memorandum as operative in city of Nagpur when Central

government accommodation is available in surplus and Central

government is required to spend huge amounts towards Construction

and maintenance Of Government buildings is neither arbitrary nor

malafide .The policy decision in this regard must be left to the

Government’s sound discretion. The Court ought not to substitute

the judgment of the executive by it’s own opinion merely because

another view may be possible. The interference in writ jurisdiction

may be justified only if the administrative authority concerned

transgressed it’s constitutional limits or statutory power.

6. For the above reasons and in the facts and circumstances

disclosed before us, the impugned Order is unsustainable and

therefore quashed and set aside as Original applications were

wrongly allowed by the impugned Order. We direct dismissal of the

Original Applications in terms of Prayer (1) in the Writ petition. The

Petition is allowed accordingly. Rule is thus made absolute. In the

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14

facts and circumstances of the case, there shall be no order as to

costs .

            A. P. BHANGALE, J                           B. P. DHARMADHIKARI, J




                                                             
    joshi




                                                
                               
                              
         
      






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Central Prison vs The State Of Maharashtra on 23 September, 2011

Bombay High Court
Central Prison vs The State Of Maharashtra on 23 September, 2011
Bench: A.M. Thipsay
                                                                                   Apeal-57-93
                                                1
    Dixit


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         CRIMINAL APPELLATE JURISDICTION




                                                                                     
                           CRIMINAL APPEAL NO.57 OF 1993




                                                             
    Sunil alias Pona Tolaram Pore (Varma),
    R/a. Idgah Road, Premnagar,
    Jogeshwari (East), Bombay - 400 060
    [At present imprisoned at District




                                                            
    Central Prison, Thane]                                                ...      Appellant
              Versus
    The State of Maharashtra                                              ...      Respondent




                                                
    Ms. Indu Verma for the Appellant (Original Accused No.2).
                                 
    Smt. V.R. Bhosale, APP, for the Respondent-State.
                                
                                             CORAM        : A.M. THIPSAY, J.

                                             DATE               RD  SEPTEMBER, 2011.
                                                          : 23                      
              
           



    JUDGMENT :

1. The Appellant and three others were prosecuted on the allegations of

having committed offences punishable under Section 364 of the IPC and

Section 307 of the IPC read with Section 34 of the IPC, or, in the alternative,

Section 326 of the IPC read with Section 34 of the IPC. After holding a trial,

the learned Additional Sessions Judge for Greater Bombay found the

Appellant (the original Accused No.2) and the other accused guilty of an

offence punishable under Section 326 of the IPC read with Section 34

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Apeal-57-93
2
Dixit

thereof. He sentenced the Appellant (original Accused No.2) and the

original Accused No.1 – Jamaluddin alias Shendya Sayyed Hussein – to

suffer R.I. for seven years. He directed the original Accused Nos.3 and 4 –

Anwar Khan alias Annu Rafiq Khan and Mohamed Ayub Mohamad Isaq

Shaikh – to be released on probation of good conduct on their executing a

personal bond in the sum of Rs.5,000/- each, as contemplated under

Section 360 of the Code of Criminal Procedure (hereinafter ‘the Code’ for

brevity). The said original Accused No.1 Jamaluddin had filed a separate

Appeal, being Criminal Appeal No.716 of 1992, but he died during the

pendency of the said Appeal. That Appeal, therefore, stood abated.

2. Since the Advocate, who had been appearing for the Appellant in this

Appeal, sought discharge, it was duly given and Ms. Indu Verma, Advocate,

was appointed for the Appellant under the Free Legal Aid Scheme.

3. I have heard Ms. Indu Verma, the learned Advocate for the Appellant,

and Smt. V.R. Bhosale, the learned APP for the Respondent-State. I have

gone through the impugned Judgment and Order. I have been taken

through the evidence adduced before the trial Court.

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Apeal-57-93
3
Dixit

4. The case of the prosecution, in brief, as put forth before the trial

Court, was as follows :-

. The Appellant and the other accused were known Gundas and known

as such, in the locality where the First Informant Nafajat Hasmat Pathan

(PW-1) lived with his wife Tajbibi (PW-2). The Appellant and even the other

accused were known to the said Nafajat (PW-1) and Tajbibi (PW-2) since

prior to the incident. That, on 11th April, 1988, the Appellant went to the

house of Nafajat at about 4:00 p.m., when Nafajat was not at home. The

Appellant enquired with Tajbibi (PW-2) about Nafajat (PW-1). Thereafter, in

the night, again, the Appellant and the original Accused No.1 Jamaluddin

went to the house of Nafajat (PW-1) and enquired about him, but at that

time also, Nafajat (PW-1) was not at home. That, at about 6:00 a.m. on the

next day, i.e. 12th April, 1988, while Nafajat (PW-1) and Tajbibi (PW-2) were

sleeping in their house, the Appellant and other Accused went there. On the

Appellant calling him by his name, Nafajat opened the door. Nafajat (PW-1)

and Tajbibi (PW-2) noticed the Appellant and the other accused standing in

front of the door of their house. The original Accused No.1 had a revolver in

his hand and the Appellant and the other accused were having choppers

with them. The original Accused No.1 placed the revolver on the back of

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Nafajat (PW-1). The Appellant tied the hands of Nafajat by a rope. All the

four accused then dragged Nafajat to a nearby place i.e. near Munshi

Grocery Stores. The original Accused No.1 Jamaluddin – who was already

holding a revolver in one hand – took the chopper, which was in the hand of

the original Accused No.4, and assaulted Nafajat (PW-1) on his shoulders.

The Appellant and the other two accused joined the original Accused No.1

in the assault. All the accused – including the Appellant – assaulted Nafajat

(PW-1) with choppers all over his body. Nafajat (PW-1) started bleeding

from the injuries sustained by him on account of the said assault. He fell on

the ground. All the four accused then ran away. While he was being

assaulted, Nafajat (PW-1) had raised an alarm, but his mouth was gagged

by the Appellant. Tajbibi (PW-2) and one Hanif Shaikh came to the spot

where Nafajat (PW-1) was lying in an injured condition. Tajbibi (PW-2)

rushed to Jogeshwari Police Station and reported the incident to PSI Nikam

(PW-8). PSI Nikam (PW-8) and the other Police staff went to the spot along

with Tajbibi (PW-2). The Police removed Nafajat (PW-1) to Cooper Hospital.

Dr. Satish Dharap (PW-3) examined Nafajat (PW-1) and noticed 39 wounds

on his person. Nafajat (PW-1) was admitted in the Emergency Ward of the

Hospital. While Nafajat (PW-1) was being treated, PSI Nikam (PW-8)

recorded his statement; which was treated as the First Information Report

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(Exhibit-13). Thereafter, the statement of Tajbibi (PW-2) was recorded.

Nafajat (PW-1) was treated in the hospital till he was discharged on 28 th

May, 1988.

. After the registration of the crime, PI Puri (PW-9), PSI Avhad (PW-7),

PSI Save and other Police staff visited the spot of incident and drew a

Panchnama (Exhibit-18), with Subhash Baliram Mestry (PW-4), acting as

one of the Panchas. Samples of blood were collected from the spot. Inquiries

were made with certain persons and their statements were recorded. Then

the blood stained clothes of Nafajat (PW-1), i.e. Shirt (Article 1) and Lungi

(Article 2), were taken charge of under the Panchanama (Exhibit-32).

5. During the course of investigation, the original Accused No.1 disclosed

certain information pursuant to which the chopper (Article 5), which had

been allegedly used in commission of the offence, was recovered by the

Police under a Panchanama (Exhibits 36 and 36A) in the presence of Panch

Umashankar Prajapati (PW-6). The articles, which had been seized in the

course of investigation, including the clothes of Nafajat (PW-1), were sent to

the Chemical Analyzer for examination and opinion.

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. On completion of investigation, a report under Section 173(2)(i) of

the Code of Criminal Procedure was submitted, on the basis of which the

Appellant and the other accused were prosecuted and convicted, as

aforesaid.

6. The prosecution examined ten witnesses during the trial. Originally,

the charge, that had been framed against the Appellant and the other

accused, was only with respect to the offences punishable under Sections

364 of the IPC and 307 of the IPC read with Section 34 of the IPC. After the

entire evidence was recorded, however, the learned Additional Sessions

Judge framed a charge in respect of an offence punishable under Section

326 of the IPC read with Section 34 of the IPC as an alternative to the

charge of an offence punishable under Section 307 of the IPC read with

Section 34 of the IPC.

7. The main witnesses in this case are Nafajat (PW-1) and Tajbibi

(PW-2). I have carefully gone through the evidence of these witnesses. That,

all the accused persons, including the Appellant, were known to Nafajat

(PW-1) and Tajbibi (PW-2) since previously, is not in dispute at all. Nafajat

(PW-1) has identified all the accused including the Appellant in the Court.

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He has narrated the incident. According to him, in the night between 11 th

April, 1988 and 12th April, 1988, he returned home at about 12:30 a.m. and

at that time Tajbibi (PW-2) told him that the Appellant had come to enquire

about him at about 4:00 p.m. and, thereafter, at about 11:00 p.m. He has

then stated that at about 6:00 a.m., he heard a knock at the door and also

heard the Appellant calling him by his name. He has further stated that

when he opened the door, he saw all the four accused standing in front of

his door and when he came out of his house, immediately, the original

Accused No.1 placed a revolver on his back. He has also stated about the

Appellant and the other accused having choppers in their hands. According

to him, Tajbibi (PW-2) came out and asked the accused persons as to what

was the matter when the original Accused No.1 told her that they all had

some work with Nafajat (PW-1), and that Nafajat (PW-1) would be coming

back soon. He then states that the Appellant tied both his hands by rope,

and that, then all the accused dragged him to a place near Munshi Grocery

Shop. According to him, the original Accused No.1 then asked him as to

where one Mohd. Shah was, when Nafajat (PW-1) stated that he did not

know his whereabouts. It is thereupon that the original Accused No.1 took

the chopper from the hands of the original Accused No.4 and assaulted

Nafajat (PW-1) with it on his shoulders. That, then all the accused joined

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him in assaulting Nafajat (PW-1) with choppers all over the body. Nafajat

(PW-1) has also stated about the Appellant gagging his mouth, when

Nafajat raised an alarm. That, Tajbibi (PW-2) and one Hanif Babu Shaikh

came to the spot where Nafajat (PW-1) had been lying in an injured

condition. He has then stated about Tajbibi (PW-1) going to the Police

Station, Police coming there and taking him to Cooper Hospital. He has also

stated about his statement being recorded by the Police in the hospital. The

F.I.R. (Exhibit-13) was read over to him in the Court and he stated that it

had been correctly recorded. He has also identified the Shirt (Article 1) and

Lungi (Article 2) as his, when they were shown to him in Court.

8. In the cross-examination, a suggestion was given to him that he was

staying with one person by name Habib, but this suggestion has been denied

by Nafajat (PW-1), as ‘not true’. It was also suggested to him that Tajbibi

(PW-2) was not his lawfully wedded wife, and that, prior to her marriage

with Nafajat (PW-1), Tajbibi (PW-2) was residing with Habib, and that, they

were in love. The attempt in the cross-examination is to suggest that Nafajat

(PW-1) had a quarrel with Habib, and that because Nafajat (PW-1) had

married Tajbibi (PW-2), Habib had threatened to kill him. All these

suggestions have been, however, denied by Nafajat (PW-1). A suggestion

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was also given to him that a person by name Jafar had also threatened to

kill Nafajat, and that Jafar and Tajbibi had plans to marry. Nafajat (PW-1)

denied such suggestion and stated that he did not even know any such

person. It was also suggested to him that he was a contract killer, and that

he was involved in several cases of extortion, theft and robbery at several

Police Stations in Mumbai. It was also suggested that Tajbibi (PW-2), her

brother and her parents were involved in several Narcotics cases. It was

suggested that Tajbibi’s family members were supplying Brown Sugar to

several persons in Jogeshwari area. All sorts of suggestions, that the

Appellant had arranged for an accommodation for Nafajat in Jogeshwari,

that Nafajat had borrowed monies from the original Accused No.1, etc.,

were given to Nafajat (PW-1); and all such suggestions have been denied by

him. It was ultimately suggested to him that Habib and Jafar had assaulted

him, and that he had not seen any of the accused assaulting him. It was

suggested that he and even Tajbibi (PW-2) had suppressed the name of

Habib and Jafar and both of them had falsely implicated the accused

persons.

9. In the cross-examination, Nafajat (PW-1) was further questioned as to

how he knew all the four accused, to which he had replied that they were

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residents of the same locality as his, and that he used to see them often in

the locality itself. It was also suggested that Tajbibi (PW-2) had not

informed him that original Accused Nos.1 and 2 had come to enquire about

him at his house on 11th April, 1988, and that the Appellant/original

Accused No.2 did not knock at his door at 6:00 a.m. etc. These suggestions

have been denied by Nafajat (PW-1).

10.

Nafajat (PW-1) was sought to be contradicted with reference to the

F.I.R., as regards whether he had told the Police that, when all the four

accused had come to his house, his wife had came out and asked all the

accused as to what was the matter, by pointing out the omission to

specifically state so in the F.I.R. I am not impressed by this attempt. The

story of Nafajat (PW-1) as well as of Tajbibi (PW-2) is that Tajbibi (PW-2)

was present in the house when Nafajat (PW-1) was taken away from his

house by the accused persons and nothing turns on whether Tajbibi (PW-2)

had asked all the accused as to what was the matter and further whether

that Nafajat (PW-1) had stated before the Police that she had so asked.

Thus, even if it is assumed that it was not stated to the Police by Nafajat

(PW-1), it cannot lead to the inference that Tajbibi (PW-2) had actually not

witnessed the knock at the door and taking away of Nafajat (PW-1); and

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that what has been stated before the Court by Nafajat (PW-1) is, therefore,

an improvement.

11. In her evidence, Tajbibi (PW-2) has narrated the facts in conformity

with the deposition of Nafajat (PW-1). She has stated that she knew all the

four accused since prior to the date of incident. She has identified all of

them in Court by pointing out towards them and by giving their names.

12. Tajbibi (PW-2) has narrated the incident by stating that on 12th April,

1988, at about 6:00 a.m., the Appellant knocked at the door and called

Nafajat (PW-1) by his name. That, when Nafajat (PW-1) opened the door,

Tajbibi (PW-2) was also awake and the child had also woken up. Tajbibi

(PW-2) has stated that the Appellant asked Nafajat (PW-1) to come out of

the house. That, she came out of the house and saw all the four accused,

including the Appellant, standing outside the door. She has also stated

about the original Accused No.1 having the revolver in his hand and the

other accused being armed with choppers. That, she asked all the four

accused as to what was the matter, and that thereupon all the accused told

her that they had some work with Nafajat (PW-1) and were taking him

along. Tajbibi (PW-2) went inside her house, but after the accused had

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taken away Nafajat (PW-1), she went out of her house along with the child

to look for him. She has stated that she then saw him in an injured

condition near Munshi Grocery Shop, which was situated at a distance of

about 5 to 10 minutes from her house. She has stated that her husband –

Nafajat (PW-1) – was bleeding profusely from the severe injuries, which he

had sustained. According to her, while on the way, she was accosted by the

original Accused No.1 and the Appellant, who threatened her that they

would kill her, if she would proceed further. She has then stated about going

to Jogeshwari Police Station and reporting the matter to the Police, and that

Nafajat (PW-1) was, thereafter, taken in a police van to the Cooper Hospital.

13. In the cross-examination, an attempt was made to suggest that in

front of the entrance door of her house, four persons would not be able to

stand simultaneously, and that, therefore, she could not have seen all the

four accused. This has been denied by the witness. A suggestion was given

that she and her husband were on friendly terms with the accused persons,

which was also denied by her.

14. Tajbibi (PW-2) was questioned as to when she went out to see what

had happened to Nafajat (PW-1), whether she had taken her child with her.

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Tajbibi (PW-2) had, initially, stated that she left the child with one of the

neighbours and went alone to look for Nafajat (PW-1), but has later on

stated that she did not remember exactly whether she had taken the child

along with her to the spot where Nafajat (PW-1) was lying in an injured

condition.

15. Tajbibi (PW-2) claims to have seen that the hands of Nafajat (PW-1)

were tied behind the back by a rope. She was also asked about one Habib

Talwar and she has stated that she did not know any such person. In the

cross-examination, she was confronted with the fact that, that the Accused

No.1 was having a revolver was not appearing in her statement recorded by

the Police and she was unable to state why it was not recorded though she

claimed to have told the same to the Police. Similarly, the omission to state

to the Police about the original Accused No.1 and the Appellant threatening

her when she was proceeding to see where Nafajat (PW-1) was, has also

been brought on record. Though Tajbibi (PW-2) was extensively cross-

examined, I do not find that her testimony has been shaken in any manner.

Several wild suggestions – as were given to Nafajat (PW-1) – were given to

Tajbibi (PW-2) also, such as Nafajat (PW-1) was concerned in a murder case,

that he had been attested in a robbery case, and that Tajbibi’s brother was

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involved in a rape case, and that he was dealing in brown sugar, etc. It was

also suggested to her that one Hanif Khadfa had taken possession of her

house and had assaulted her, and that, at that time, she had gone to the

original Accused No.1 for help. These suggestions have been denied by

Tajbibi (PW-2) as false.

16. The evidence of Nafajat (PW-1) and Tajbibi (PW-2) is corroborated by

the evidence of Dr. Satish Dharap (PW-3), who had examined Nafajat

(PW-1) in the Cooper Hospital. Dr. Satish Dharap (PW-3) has mentioned

that there were 39 wounds on the person of Nafajat (PW-1), out of which

37 were incise wounds. Out of these wounds, two wounds were on the

scalp. He has identified the endorsement on the F.I.R., which he said was in

his own handwriting. He had brought the case papers in respect of the

treatment given to Nafajat (PW-1) in the Cooper Hospital.

17. His cross-examination has been quite lengthy, but nothing, which

would shake his evidence given in the examination-in-chief, has been

brought on record. Part of the cross-examination was directed towards

establishing that the injuries caused to Nafajat (PW-1) were not that serious.

Part of the cross-examination was directed towards suggesting that the

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injuries sustained by him could not have been caused by the choppers. Dr.

Satish Dharap (PW-3) has admitted that two of the injuries could not be

caused by sharp weapon, and that they would be caused, if one would fall

on the ground and, if dashed against any hard or blunt surface. He has

categorically stated that considering the loss of blood from the injuries

caused to Nafajat (PW-1), the 38 injuries were enough to cause death in all

probability. He has, however, admitted that no major blood vessel was

actively bleeding except for the injury mentioned at Sr. No.13 in the Medical

Certificate (Exhibit 19) issued by him. The purpose of some of the questions

put to this witness in the cross-examination was, apparently, to show that

the injuries were quite minor. In my opinion, this has not been successful

and the evidence of this witness is not shaken in any manner.

18. I find that though Nafajat (PW-1) and Tajbibi (PW-2) were extensively

cross-examined, and that all sorts of suggestions – quite contradictory at

times – were given to both of them, their testimony, which is supported by

the medical evidence and the evidence of the Police Officers on certain

aspects, is not shaken at all. In fact, some of the suggestions in the cross-

examination are quite curious, in as much as, it is suggested that Nafajat

(PW-1) and Tajbibi (PW-2) were not disclosing the names of the real

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assailants and they were falsely implicating the accused persons without

suggesting any reason for protecting the real culprits and for implicating the

accused persons falsely. It would not be possible to accept that after having

suffered such a murderous assault, the victim would not name the real

assailants, but implicate some totally different persons as the assailants.

Interestingly, it was also suggested to Tajbibi (PW-2) that actually she and

Nafajat (PW-1) had been helped by the original Accused No.1; in which case

it would be difficult to conceive a reason for the false implication of the

original Accused No.1 and the other accused including the Appellant.

19. The learned Additional Sessions Judge, Greater Bombay, has believed

the evidence of Nafajat (PW-1) and Tajbibi (PW-2). He has found their

versions consistent and natural. The minor variations in the evidence of

these witnesses and the possibility of their having made some improvement

on some minor matters have been rightly ignored by the trial Court as not of

any consequence.

20. The evidence of PSI Vithal Nikam (PW-8) attached to the Jogeshwari

Police Station at the material time, shows that while he was on station

house duty from 8 p.m. on 11th April, 1988 to 8 a.m. on 12th April, 1988, at

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about 7:30 a.m., Tajbibi (PW-2) came running to the Police Station and

reported that her husband was assaulted and was lying on the road in an

injured condition. PSI Nikam (PW-8) thereafter immediately went to the

spot along with Tajbibi (PW-2) and police staff. He has stated that they went

near Munshi Grocery Shop where Nafajat (PW-1) was lying in an injured

condition. He has then stated that Nafajat (PW-1) was lifted and put in the

Police Jeep and then taken to Cooper Hospital, where he was admitted in

emergency ward. According to him, he then recorded the statement of

Nafajat (PW-1) after obtaining permission from the Doctor attending to

Nafajat (PW-1). The F.I.R. (Exhibit-13) was shown to him and he has

identified the same as the said statement of Nafajat (PW-1) which was

recorded by him in the Cooper Hospital.

21. PSI Nikam (PW-8) has then stated that he along with Tajbibi (PW-2),

PI Puri (PW-9), PSI Avhad, PSI Save and other Policemen went to the scene

of offence and, that, under a Panchnama, the measurements of the room of

Nafajat (PW-1) were taken. The surroundings were also noted and then the

Police Party and the Panchas went to the scene of offence, which was

situated at a distance of about 1 furlong from the house of Nafajat (PW-1).

He has then stated about collecting samples of blood, mud stain with blood

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etc. from the place of incident. He was extensively cross-examined on

various aspects of the matter, but I do not find anything that would assist

the Appellant has been brought out on record as a result of the cross-

examination. He has admitted that Tajbibi’s name has not been mentioned

in the entry made in the Station House Diary (as the person coming to the

Police Station), but, in my opinion, this cannot be lead to any doubt as to

whether Tajbibi (PW-2) had, indeed, gone to the Police Station. PSI Nikam

(PW-8) has given a reason for not mentioning this in the Station House

Diary and, according to him, as Nafajat (PW-1) was lying in a seriously

injured condition, he left the Police Station immediately and, that,

therefore, he did not make any entry in that regard in the Station House

Diary. He was then questioned as to whether he mentioned in the Station

Diary Entry that he left the Police Station for going to the hospital etc. and

the witness has stated that it was not so mentioned. I am unable to accept

that this would throw a doubt on the version of Tajbibi (PW-2) and of this

witness about Tajbibi (PW-2) having gone to the Police Station and this

witness, along with other Police personnel having gone to the place where

Nafajat (PW-1) was lying in an injured condition. The omission of Nafajat

(PW-1) to state before the Police that when the accused persons had

knocked the door of his house at around 6:00 a.m., Tajbibi (PW-2) had also

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woken up and had come up to the door, was brought on record by

confronting PSI Nikam (PW-8) with the same. I am of the opinion that such

omission is inconsequential and cannot lead to an inference that in spite of

the door of the house being knocked and in spite of the room being a small

one, Tajbibi (PW-2) did not wake up and did not see as to who had knocked

the door or who had come there. It is unlikely that when the door was

knocked at such early hours and when Nafajat (PW-1) had woken up,

Tajbibi (PW-2) would continue to sleep and would not try to know who had

come.

22. The case of the prosecution cannot be disbelieved merely because this

witness did not make any record of what Tajbibi (PW-2) told him after

coming to the Police Station. Tajbibi (PW-2) as well as the witness, at that

stage, were concerned more with the condition of the injured Nafajat

(PW-1) and the explanation of the witness that he noticed that Tajbibi

(PW-2) was very much frightened, and that she did not tell him as to who

and how many were the assailants, he did not ask her the same, is quite

acceptable.

23. In his evidence, the Investigating Officer PI Shankar Puri (PW-9)

speaks about the arrest of the Appellant on 15th April, 1988. According to

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him, the Appellant was arrested on 15th April, 1988 by one PSI Sankhe in

C.R. No.119 of 1988 of Jogeshwari Police Station and, later, he was arrested

in this case. He has spoken about having taken charge of the clothes of the

person of the Appellant in the presence of Panchas. His evidence which

relates to the other accused is not necessary to be discussed here and it is

sufficient to observe that the cross-examination as of this witness had not

yielded anything in favour of the present Appellant.

24. The evidence of other witnesses is not significant and, as a matter of

fact, not relevant in the context of the case against the Appellant. Therefore,

only a brief reference to the same would suffice. Subhash Mestry (PW-4) is

the Panch in respect of the Spot Panchnamas. Mohd. Jamil Khan (PW-5) is

supposed to be a Panch in respect of arrest of the Appellant on 15th April,

1988. He has, however, not supported the prosecution and was declared

hostile. Uma Shankar Prajapati (PW-6) is also a Panch Witness in respect of

the recovery of a Chopper at the instance of the original Accused No.1. This

witness did not support the case of the prosecution and was declared

hostile. In any case, his evidence was not relevant in the context of the

question of guilt or innocence of the present Appellant. Similarly, the

evidence of Bhanudas Avahad (PW-7), Police Sub-Inspector attached to

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Jogeshwari Police Station, at the material time, also is in respect of the

involvement of the original Accused No.4 and does not relate to the present

Appellant. The evidence of Narayan Patil (PW-10), who was attached to the

Jogeshwari Police Station as Inspector of Police at the material time, is also

not relevant in the context of the case against the Appellant.

25. The trial Court has believed the version of Nafajat (PW-1) and Tajbibi

(PW-2), which has been corroborated by the medical evidence and also by

the evidence of PSI Nikam (PW-8). On an independent re-appreciation and

re-evaluation of the evidence, this Court also comes to the conclusion that

the assault on Nafajat (PW-1) by the accused persons was clearly proved,

and that the role of the Appellant, as alleged by the prosecution, had also

been satisfactorily proved.

26. Ms. Indu Verma, the learned Advocate for the Appellant, advanced

some arguments with respect to the unreliability of the prosecution version.

According to her, the theory of the hands of the Nafajat (PW-1) having been

tied by a rope cannot be believed, and that the witnesses are not telling the

truth in that regard. She pointed out that no rope had been seized during

the investigation. She also pointed out that though the allegation of the

original Accused No.1 having a revolver with him has been levelled, no

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revolver has been seized. According to her, therefore, the witnesses cannot

be termed as wholly reliable. There is undoubtedly some substance in the

contentions advanced by the learned Advocate for the Appellant and though

it is possible to find out some faults in the investigation, it is not possible to

accept that no assault, as alleged, had taken place at the time and place

mentioned by Nafajat (PW-1) and Tajbibi (PW-2). The number of injuries

sustained by Nafajat (PW-1) are wholly consistent with the version of

Nafajat (PW-1) and Tajbibi (PW-2). The place where the incident took place

also cannot be disputed. Once it is established beyond any reasonable doubt

that Nafajat (PW-1) was assaulted at the given time and place, the only

possibility required to be considered for exonerating the Appellant, would

be that the Appellant was not among the assailants. In that case, the

possibility of Nafajat (PW-1) and Tajbibi (PW-2) having falsely implicated

the Appellant needs to be considered. I have considered the same and, in

my opinion, such possibility has to be forthwith rejected. It is significant that

no reason has been suggested for Nafajat (PW-1) to implicate the Appellant

falsely. On the contrary, the wild, somewhat reckless and at times

contradictory suggestions, that had been given to Nafajat (PW-1) and Tajbibi

(PW-2) in the cross-examination, themselves indicate that there was hardly

any scope for challenging the evidence of these witnesses.

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27. That no rope was taken charge of in the course of investigation and no

revolver could be seized in the course of investigation, though may indicate

that Nafajat (PW-1) and Tajbibi (PW-2) are not wholly reliable witnesses,

their evidence cannot be discarded only on that ground, with respect to the

incident of assault and the involvement of the Appellant in the assault.

There is a circumstantial guarantee with respect to the version of these

witnesses, apart from the fact that the same is fully corroborated by the

evidence of Dr. Satish Dharap (PW-3) and PSI Nikam (PW-8), which

evidence has remained unshaken.

28. In my opinion, therefore, the finding of guilt of the accused persons –

including the Appellant – as arrived at by the learned Additional Sessions

Judge is proper and legal. As a matter of fact, the reasoning of the learned

Sessions Judge that this assault was not sufficient to conclude the offence to

be one punishable under Section 307 of the IPC is quite doubtful. This view

has been taken only on the basis that there had been no injuries on the vital

part of the body of Nafajat (PW-1), which, in my opinion, could not have

been the sole criteria to consider what offence the Appellant and the other

accused had committed. The number of injuries and the medical opinion

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that they were – at least collectively – sufficient in the ordinary course of

nature to cause death needed to be considered in this context. Anyway,

since the State has not preferred any Appeal from the conviction of the

Appellant with respect to a lesser offence, I do not wish to discuss this

aspect any further and leave it at that.

29. Thus, there appears to be no infirmity in the judgment and order of

conviction of the Appellant, as recorded by the Additional Sessions Judge,

Greater Bombay.

30. The learned Counsel for the Appellant, however, urged that

considering all the relevant aspects of the matter, it would be proper to

reduce the sentence imposed on the Appellant.

31. Before considering this aspect of the matter, it would not be out of

place to mention an error committed by the learned Additional Sessions

Judge, though the same is not relevant in the context of the present Appeal;

as a reference to the same would clarify the legal position with respect to

the applicability of Section 360 of the Code to the State of Maharashtra.

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32. The learned Additional Sessions Judge dealt with the original Accused

Nos.3 and 4, under the provisions of Section 360 of the Code. They were

convicted of an offence punishable under Section 326 of the IPC, which

offence is punishable with imprisonment for life. A reading of Section

360(1) shows that it is not applicable where the conviction is in respect of

an offence ‘punishable with death or imprisonment for life’. It has been held

that the phrase ‘punishable with death or imprisonment for life’ must be

interpreted disjunctively. The said phrase must be read as referring to

offences where the punishment would be death, or where the punishment

would be imprisonment for life. Thus, even where imprisonment for life is

the maximum punishment provided for the offence, of which the accused is

convicted, the benefit of Section 360 cannot be extended to such accused.

There was, therefore, no scope for extending the benefit of the provisions of

Section 360 to the original Accused Nos.3 and 4, as was done by the learned

Additional Sessions Judge.

33. Even otherwise, whether, on facts, it was a fit case to release the

offenders on probation of good conduct, regard being had to the factors

mentioned in the said Section, does not appear to have been considered at

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all by the learned Additional Sessions Judge. What was considered as a

ground for extending the benefit of probation is that the said accused were in

custody for more than two years and more than four years, respectively. This

was not a relevant consideration at all, for extending the benefit of

probation to them.

34. Moreover, there was a basic error in applying the provisions of Section

360 of the Code, as the said section has no application to the State of

Maharashtra. It is because the Probation of Offenders Act, 1958 is in force

in the State of Maharashtra. It has been brought in force in different parts of

the State of Maharashtra on different dates. In some Districts, it was

brought in force on 1st November, 1966; in some other Districts, it was

brought in force on 1st February, 1970. By 15
th
August, 1972, it was brought

in force throughout the State of Maharashtra. Section 19 of the Probation of

Offenders Act, 1958, reads as follows :

“Section 19. Section 562 of the Code not to apply
in certain areas.- Subject to the provisions of Section
18, Section 562 of the Code shall cease to apply to the
States or parts thereof in which this act is brought into
force.”

35. Undoubtedly, this Section refers to Section 562 of the Old Code i.e.

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the Code of Criminal Procedure, 1898. The new Code came in force on the

1st day of April, 1974, but Section 19 of the Probation of Offenders Act was

not amended in consequence of the same. However, this aspect does not

affect the efficacy or operation of Section 19(1) in any manner. The reason

is that the provisions of Section 562 of the Code of Criminal Procedure,

1898 have substantially been incorporated in Section 360 of the new Code

of Criminal Procedure, 1973. In other words, the provisions of both the

sections are in pari materia. In view of the provisions of Section 8(1) of the

General Clauses Act, the reference in Section 19 of the Probation of

Offenders Act, to Section 562 of the old Code, has to be construed as a

reference to Section 360 of the new Code. The result is that in the States

where the Probation of Offenders Act has been brought in force, Section 360

of the Code of Criminal Procedure can have no application. The same view

has been taken by the Kerala High Court in the case of State of Kerala Vs.

Chellappan George, reported in 1983 CR.L.J. 1780. The Karnataka High

Court also, in the case of B.S.M. Ganganna Vs. State of Karnataka & Ors.,

reported in 1987 CRI.L.J. 561, has taken the same view by observing that

the Probation of Offenders Act, 1958 being in force in Karnataka, the

provisions contained in Section 360 of the new Code are not applicable in

that State. Again, a Full Bench of Himachal Pradesh High Court has also

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taken the same view in the case of State of Himachal Pradesh Vs. Lat

Singh & Ors., reported in 1990 CRI.L.J. 723.

36. Thus, the learned Additional Sessions Judge was not right in applying

the provisions of Section 360 of the Code to the original Accused Nos.3 and

4. Even otherwise, it does not appear to be a case where the benefit of the

provisions of probation, even as per the provisions of the Probation of

Offenders Act, could have been given.

37. Since the Respondent-State has not challenged the release of the

original Accused Nos.3 and 4 by adopting appropriate proceedings before

this Court, no further action in the matter is warranted, at this distance of

time. However, it was thought fit to make the above observation as to the

correct legal position, as instances were noticed wherein the Courts in

Maharashtra had invoked the provisions of Section 360 of the Code of

Criminal Procedure, instead of the provisions of the Probation of Offenders

Act, for releasing an accused on probation of good conduct. It is, therefore,

felt that the correct legal position with respect to the applicability of Section

360 of the Code needs to be brought to the notice of the Subordinate Courts

in Maharashtra.

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38. I shall now come back to the question as to whether it would be just

and proper to reduce the sentence imposed upon the Appellant by the trial

Court. I have taken into consideration the submissions made in this regard

by the learned Counsel for the Appellant. The incident had taken place on

12th April, 1988 i.e. more than 23 years back. The Appellant had been on

bail during the trial and even during the pendency of the Appeal. He came

to be taken in custody only a few months back. The submission of the

learned Counsel that no specific role in the incident has been attributed to

the Appellant as the author of the any particular injury or injuries suffered

by the victim has also to be accepted. Further, during the period of about 23

years, while the Appellant was on bail, he does not seem to have committed

any offence. At, least there is nothing to indicate so and not even a claim to

that effect.

39. Considering all the relevant aspects of the matter and, more

particularly, that the Appellant shall suffer punishment for something which

had been done by him about 23 years back, I am inclined to reduce the

sentence imposed on the Appellant by the trial Court.

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40. In the result, the Appeal is partly allowed.

41. The order of conviction of the Appellant, as recorded by the

Additional Sessions Judge, is maintained. However, the sentence imposed

upon the Appellant is reduced to Rigorous Imprisonment for five years.

42. Save and except the aforesaid, no other order in this Appeal, which

stands disposed of in the aforesaid terms.

[A.M. THIPSAY, J.]

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