Sow. Dhanabai vs The State Of Maharashtra on 22 September, 2011

Bombay High Court
Sow. Dhanabai vs The State Of Maharashtra on 22 September, 2011
Bench: A. H. Joshi, A. R. Joshi
                                            1                          CRIWP-812.10

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




                                                                             
                       CRIMINAL WRIT PETITION NO. 812 OF 2010




                                                     
     1.     Sow. Dhanabai w/o Hiraman Dasare,
            age 70 years, occupation: household,
            resident of Tikkar, Taluka Shrirampur,
            District : Ahmednagar.




                                                    
     2.     Sow. Suthira w/of Dnyaneshwar Dasare,
            age 35 years, occup. govt. service,
            r/o HIG-03, Flat No.37, MHADA Colony,
            Near Baba Poetrol Pump, Aurangabad.




                                        
     3.     Sow, Meenatai Hariom Zalwar,
            age 35 years, occup. household,
                         
            r/of Ambikanagar, Mukundwari,
            Aurangabad.
                        
     4.     Sow. Priya w/o Raju @ Ramesh Ghodke
            Patil, age 27 years, occup.household,
            R/of H. No.S-14-79, Shakti Nagar,
            Aurangabad.

     5.     Dnyaneshwar s/o Hiraman Dasare,
      


            age 35 years, occupation: business,
            r/of HIG 03, Flat No.37,MHADA Colony,                      Petitioners/
   



            Near Baba Petrol Pump, Aurangabad.                          Orig.accused.

                          Versus

     1.     The State of Maharashtra, through





            the Commissioner of Police,
            Aurangabad.

     2.     The Police Inspector,
            Police Station, Kranti Chowk,
            Aurangabad.





     3.     Smt. Rohini Govind Ladhe,
            age 73 years, occup. retired govt.
            servant, r/o New Bhagyyadeep
            CH Society, flat No.02-104, Near
            Swimming Pool, Gate No.2, Kalwa,                  Respondents
            Thane
                   --------
     Smt. Asha Sanjay Rasal, Advocate, for the petitioners.
     Smt. S.D. Shelke, A.P.P. for Respondent Nos. 1 and 2.
     Shri K.C. Sant, Advocate, for Respondent No. 3.




                                                     ::: Downloaded on - 09/06/2013 17:45:58 :::
                                            2                            CRIWP-812.10


                                  Coram: A. H. Joshi and        A.R. Joshi,        JJ.
                                  Judgment      reserved        on:      19.09.2011
                                  Judgment      pronounced      on:      22.09.2011




                                                      
     Judgment : ( Per: A.H.Joshi, J.)




                                                     

01. The Petitioners herein have been named as accused in written F.I.R.

lodged by Respondent No. 3 Rohini. It is registered with Kranti Chowk Police

Station, Aurangabad, on 14.1.2010 under Crime No. I-18/2010 for offences

punishable under Sections 448, 468, 471 and 420, read with Section 34, of the

Indian Penal Code.

02. The story disclosed in the F.I.R. can be briefly narrated as follows:-

(a) The complainant Rohini is the wife of deceased Govind Laxman

Ladhe, who was an Advocate by profession. He owned a flat, being flat

No.37, consisting of two bed rooms, a kitchen etc. in building No. H-3,

MHADA Colony, near Baba Petrol Pump, Aurangabad, allotted to him by

MHADA.

(b) Due to employment as a rector in the hostel, and because of

family responsibilities, the complainant used to be out of Aurangabad.

(c) She applied for recording her name in MHADA in relation to the

flat owned by her husband Govind.

::: Downloaded on – 09/06/2013 17:45:58 :::

                                            3                             CRIWP-812.10



           (d)     On 24.12.2009, at about 2.30 a.m., the petitioners-accused




                                                                               

persons thumped the door of the complainant’s flat and threatened her.

The complainant, therefore, called the police. However, in the

meantime, the accused persons went back.

(e) On 25.12.2009, accused persons again came and entered the flat

of the complainant forcibly, and since then they have been occupying

the flat.

(f)

The police also did not help the complainant.

(g) The accused have made a show, of having paid some money to

the complainant’s husband and got some documents executed in favour

of petitioner No.5.

(h) On the basis of forcible entry in the flat, all accused persons

have taken away the documents, clothes, utensils, furniture and other

articles from the flat and the complainant has been driven out of the

house, barely with clothes on her person.

(i) The accused have committed offences due to their acts

complained of.

03. For quashing the complaint filed by Respondent No.3, the petitioners

have placed reliance on the following background:-

::: Downloaded on – 09/06/2013 17:45:58 :::

                                      4                            CRIWP-812.10

     (i)     Petitioner No.5 has in his favour an agreement for sale executed

by deceased Govind Laxman Ladhe in respect of the said flat. Petitioner

No.5 has paid under agreement of sale to Shri Govind Ladhe by way of

advance an amount of ` 5,31,000/- and the balance amount was to be

paid at the time of registration, and ` 2,000/- per month for day-to-

day maintenance, and due amount on the date of execution of the sale

deed.

(ii) Possession of the flat was delivered by Govind Ladhe to

petitioner No.5, on the said agreement of sale.

(iii) None came forward to nurse Govind, when he was in hospital.

(iv) The petitioners had spent for medical expenses of deceased

Govind Ladhe, and the petitioner has rendered entire nursing and

service to Govind Ladhe, till he died.

(v) After death of Govind, the petitioners filed a suit for specific

performance against complainant Rohini Ladhe.

(vi) Complainant Rohini Ladhe knew that such a litigation was in the

offing and, therefore, she had filed a caveat.

(vii) Apprehending that Respondent No.3-Rohini Ladhe was about to

lodge some false case against the petitioners, the petitioner No. 5 had

lodged complaint to police on 26.12.2009.

::: Downloaded on – 09/06/2013 17:45:58 :::

5 CRIWP-812.10

(viii) After filing of the criminal case, the petitioners submitted a

detailed representation on 22.1.2010 to the Police Sub Inspector, and

thereafter to the Commissioner of Police on 22.4.2010, yet police

have continued the investigation.

04. The grounds pressed in service through this petition read as

follows:-

XI. Prima facie, the allegations levelled in the FIR are insufficient to
prove / describe the guilt or any unlawful act on the part of the

petitioners.

XIV. Actual dispute in between the parties is of civil nature, therefore,

false and frivolous allegations levelled in F.I.R. involving petitioners,
are not sustainable and, therefore, F.I.R. is liable to be quashed.

Same grounds have been canvassed during oral arguments. Learned

Advocate for the petitioners took us through entire paperbook thread-bare, in

order to make good, the arguments.

05. Perusal of the documents on record i.e. caveat, interim order, copy of

the F.I.R. and representations submitted by the petitioners, leaves no room for

doubt to believe that in view of pending suit, the parties are already in civil

litigation.

06. The versions contained in the petition and the contents of the

agreement for sale indicate that the petitioners have proceeded on an

assumption that there are no other family members of deceased Govind Ladhe,

to succeed to his property, or for taking his care. The petitioners have

changed the stance in the suit filed by present petitioner No.5 Dnyaneshwar

himself against Govind Ladhe (since deceased, against Smt. Rohini Ladhe),

::: Downloaded on – 09/06/2013 17:45:58 :::
6 CRIWP-812.10

wherein present Respondent No. 3 is shown to be the wife and legal

representative of deceased Govind Ladhe.

07. For enabling the petitioners to get the FIR quashed, they must show

that, ex-facie, the description of the allegations or imputations levelled against

them does not comprehend the ingredients of the offences with which they

are charged.

08. The parties are concurrent on the point that the yardstick with which

the FIR is to be tested to find out whether it is to be quashed, is as to what

appears prima facie and not of a scrutiny in depth.

09. At this stage, it is not to be seen whether the case would ultimately lead

to a conviction. All that is to be seen is, whether there is a ground for

registration of crime and for investigation thereof.

10. At this stage, the petitioners are attempting that this court should

believe their version alone as the truth, and that the version contained in the

narration reflected through complainant Rohini (FIR) is a utter lie and / or

unbelievable.

11. On scrutiny, we find that the contents of the complaint submitted by

Respondent No. 3 to the police, consist of due and adequate description as to

the conduct of the petitioners-accused persons. The narration is sufficient to

describe the ingredients of the offences for which the crime has been

registered.

::: Downloaded on – 09/06/2013 17:45:58 :::

7 CRIWP-812.10

12. Therefore, present is not a fit case where the relief of quashing the FIR

is available.

We, therefore, dismiss the petition and discharge the rule.

     (A. R. JOSHI, J.)                                           (A.H. JOSHI, J.)




                                        
                         
                        
     pnd/CRIWP-812.10
      
   






                                                      ::: Downloaded on - 09/06/2013 17:45:58 :::
 

Vijay vs 5 Sau.Sharda Balasaheb Lonkar on 22 September, 2011

Bombay High Court
Vijay vs 5 Sau.Sharda Balasaheb Lonkar on 22 September, 2011
Bench: S. S. Shinde
                                     {1}


            IN THE HIGH COURT OF JUDICATURE OF BOMBAY




                                                                   
                       BENCH AT AURANGABAD
                   WRIT PETITION NO.8072 OF 2010    




                                           
     Vijay s/o Mohan Jagtap,
     age; 33 years, Occ: Agri.,
     R/o Jakhangaon, Taluka




                                          
     and District Ahmednagar.                       Petitioner 

           Versus




                                   
     1 Sau.Sindhubai Mohanrao Jagtap,
        age: 59 years, Occ: Household
                     
        & Agri., R/o Jakhangaon,
        Taluka & District Ahmednagar.
                    
     2 Suhas s/o Mohan Jagtap,
        age: 29 years, Occ: Agri.,
        R/o Jakhangaon, Taluka and
        District Ahmednagar.
      


     3 Sau.Krushnabai Vasantrao Jagtap,
   



        age: 61 years, Occ: Household
        and Agri., R/o Jakhangaon,
        Taluka & District Aurangabad.





     4 Sau.Anusayabai Ashok Lonkar,
        age: 54 years, Occ: Household,
        R/o Draksha Baug,
        Nasik Road, Nasik.





     5 Sau.Sharda Balasaheb Lonkar,
        age:    years, Occ: Household,
        R/o Draksha Baug,
        Nasik Road, Nasik.                          Respondents




                                           ::: Downloaded on - 09/06/2013 17:45:56 :::
                                             {2}


     Mr.Sandeep S. Deshmukh, advocate for the petitioner. 




                                                                                
     Mrs.Charuta S. Deshmukh, advocate  for respondents no.1 & 2.
     Respondents No.3 to 5 are served.




                                                        
      

                                       CORAM : S.S.SHINDE, J.
                                          DATE    : 22nd  September, 2011




                                                       
     ORAL JUDGMENT:

     1             Heard learned Counsel for the petitioner.




                                          
                   Rule.     Rule   made   returnable   forthwith   and   heard 
                         

finally by consent of learned Counsel for respective parties.

Learned Counsel Mrs.Deshmukh waives service of Rule on behalf

of Respondents No.1 & 2. Rest of the Respondents, though served,

are absent.

2 This writ petition is filed challenging the order dated

20.08.2009, passed by 4th Joint Civil Judge, Senior Division,

Ahmednagar, below application Exhibit-28 in Regular Civil Suit No.

368/2007, and order dated .17.07.2010, passed by 5th Joint Civil

Judge, Senior Division, Ahmednagar, below application Exhibit-44

in Regular Civil Suit No.368/2007.

3 The background facts of the case are as under:

Petitioner herein is original defendant no.1 in Regular

Civil Suit No.368/2007 filed by Respondent No.1 herein. Petitioner

is son of Respondent No.1, Respondent No.2 is real brother of

::: Downloaded on – 09/06/2013 17:45:56 :::
{3}

petitioner. Respondents No.3 to 5 are real sisters of Respondent

No.1. There is no dispute about relationship between the parties.

4 It is the case of the petitioner that present Respondent

No.3 – Krushnabai Vasantrao Jagtap filed Regular Civil Suit No.

324/1998 in the Court of Civil Judge, Junior Division,

Ahmednagar. The suit was filed for partition and separate

possession in respect of agricultural lands bearing G.Nos.304, 391,

86, 392, 396 and 401, situate at village Jakhangaon, Taluka and

District Ahmednagar. It is the case of the petitioner that

Sindhubai – Respondent No.1 herein was original defendant no.1 in

the said suit, which was filed in the year 1998. Petitioner herein

and Respondent No.2 herein were not party to the said suit.

5 It is the contention of the petitioner that agricultural

lands, which were subject matter of the suit, which was filed in the

year 1998, were possessed and owned by Baburao Shinde i.e.

father of present Respondent Nos.1 and 3 to 5. Baburao Shinde

expired on 26.01.1996. Said suit came to be decreed on 22.01.1999

on the basis of compromise deed.

On 17.09.2007, Respondent No.1 herein filed Regular

Civil Suit No.368/2007 in the Court of Civil Judge, Senior

Division, Ahmednagar. According to the petitioner, in the said suit,

it is contended that the partition effected on 22.01.1999 on the

::: Downloaded on – 09/06/2013 17:45:56 :::
{4}

basis of compromise deed is not binding on the plaintiff –

Respondent No.1 herein as the same has been effected by

committing fraud by Respondents No.3 to 5 herein. It is averred in

the said suit that, compromise has been effected between the

parties, however, the plaintiff – Respondent No.1 herein has not

been given share in the suit property. It is prayed in the said suit

that the compromise deed dated 22.01.1999 may be cancelled and

Respondent No.1 may be granted 1/4th share in the suit properties.

6

It is further case of the petitioner that on 10.10.2008,

petitioner filed written statement and contended that the suit is

not maintainable under Order 23 Rule 3 of the Code of Civil

Procedure. The suit is barred by non joinder of necessary parties.

The petitioner is in possession of the suit land and is cultivating

the same. As per the compromise deed, mutation entry no.1495

has already been effected on 11.01.2000 and the same has not

been challenged by Respondent No.1 i.e. original plaintiff.

Respondent No.3 has also filed written statement on

15.03.2008 and opposed the suit.

7 It is the case of the petitioner that on 23.01.2009,

original plaintiff – Respondent No.1 filed application below

Exhibit-28, thereby seeking amendment in the plaint. In the said

application, prayer was made to add / include the properties

situate at Rasta Peth, Pune. It is the case of the petitioner that the

::: Downloaded on – 09/06/2013 17:45:56 :::
{5}

said properties i.e. CTS No.483/1, admeasuring 50.2 square

meters, CTS No.364/1, admeasuring 23.4 square meters, CTS No.

364/2A, admeasuring 8.2 square meters and CTS No.364/2B,

were owned by joint family and owned by Purushottam Kisanrao

Jagtap i.e. father-in-law of Respondent No.1 – original plaintiff.

It is the case of the petitioner that the suit, which was

filed by Respondent No.1, was seeking partition in her father’s

property. However, in the said suit, she has filed application for

amendment below Exhibit-28 praying therein for inclusion of joint

family properties owned by her father-in-law. Respondent No.3

herein filed her say at Exhibit-30 and opposed the application for

amendment.

8 On 20.08.2009, the 4th Joint Civil Judge, Senior

Division, Ahmednagar, allowed the application filed by original

plaintiff – Respondent No.1 herein for amendment below

Exhibit-28. It is the submission of the learned Counsel for the

petitioner that the trial Court erred in not appreciating the

inconsistent pleas taken by Respondent No.1 – original plaintiff,

which is impermissible in the eyes of law. It is further contention

of the petitioner that the trial Court erred in not appreciating that

in the life time of her husband, Respondent No.1 – original plaintiff

cannot seek partition of the properties owned by her father-in-law.

It is further contention of the petitioner that the suit raises a

::: Downloaded on – 09/06/2013 17:45:56 :::
{6}

challenge to the compromise deed dated 22.01.1999 and a relief

ancillary to it. However, it no where includes and/or is related to

the joint family properties of father-in-law of plaintiff / Respondent

No.1 herein, more so, which are situated at Pune.

It is the contention of the petitioner that the trial Court

wrongly allowed the application filed by Respondent No.1 subject to

the condition to correct the valuation of the suit and to pay the

requisite court fee. It is the case of the petitioner that while

passing the order, the trial Court imposed a condition for the

purpose of allowing the application for amendment and directed

original plaintiff – Respondent No.1 herein to pay the requisite

court fee. It is further case of the petitioner that without

complying the condition in respect of payment of court fee,

Respondent No.1 – original plaintiff, on 01.09.2009, carried out

amendment to the plaint of Regular Civil Suit No.368/2007.

9 It is the contention of the petitioner that original

plaintiff – Respondent No.1 filed an application below Exhibit-36

on 06.01.2010 thereby seeking exemption from payment of court

fee. It is the case of the petitioner that Respondent No.3 herein did

file her say at Exhibit-38 to application below Exhibit-36 and

specifically contended that Respondent No.1 is deliberately

avoiding to pay the court fee and as such, application below

Exhibit-36 requires to be rejected. It is further stated that

::: Downloaded on – 09/06/2013 17:45:56 :::
{7}

Purushottam Kisanrao Jagtap, father in law of original

plaintiff/Respondent No.1 herein expired on 20.11.1984 and by way

of will deed, all his properties have been transferred in the names

of his grandsons i.e. petitioner and Respondent No.2. It is further

stated that one Santosh Vasanrao Jagtap has not been added as

party to the suit and as such, Respondent No.1 – original plaintiff

cannot be the beneficiary of the properties sought to be added by

way of amendment. It is the case of the petitioner that provisions

of Section 46 of Bombay Court Fees Act cannot be made

applicable and the plaintiff cannot be granted exemption from

payment of court fee. It is not in dispute that application below

Exhibit-36 is yet pending before the trial Court.

10 The petitioner herein, on 09.07.2010, filed an

application below Exhibit-44 in the pending suit under the

provisions of Order 39 Rule 11 of the Civil Procedure Code. It was

stated in the said application that application filed by the plaintiff

– Respondent No.1 herein came to be allowed subject to correcting

valuation of the suit and on payment of requisite court fee,

however, Respondent No.1 – original plaintiff neither given correct

valuation nor has deposited the requisite court fee. It was further

stated in the said application that plaintiff – Respondent No.1 has

not challenged the order passed on the application below

Exhibit-28 and as such, the same is binding on Respondent No.1

and, therefore, the suit is liable to be dismissed as per Order 39

::: Downloaded on – 09/06/2013 17:45:56 :::
{8}

Rule 11 of the Code of Civil Procedure. The original plaintiff –

Respondent No.1 herein filed say opposing the application filed by

the petitioner.

11 Learned 5th Joint Civil Judge, Senior Division,

Ahmednagar, rejected petitioner’s application below Exhibit-44. It

is the contention of the Counsel appearing for the petitioner that

the trial Court was not correct in holding that the suit is in respect

of matrimonial matter and as such, plaintiff – Respondent No.1

herein is exempted from payment of court fee. It is submitted that

the dispute, which does not relate to matrimonial cause, is outside

the purview of the special Notification, which allows exemption

from payment of court fee to woman litigants. Learned Counsel for

the petitioner has invited my attention to the Notifications issued

by the Government of Maharashtra on 01.10.1994 and 23.03.2000

and submitted that only in cases where dispute arises out of and

concerning to matrimonial causes, the woman litigants are

exempted from payment of court fee. However, in the present case,

suit is filed for partition and possession. It is further submitted

that original suit was filed challenging the compromise deed

effected on 22.01.1999 and by way of application for amendment of

the plaint, a prayer for partition of the properties belonging to

father-in-law of Respondent No.1 is added. Therefore, according to

the learned Counsel for the petitioner that the suit with added

prayer in respect of partition of the properties of father-in-law, in

::: Downloaded on – 09/06/2013 17:45:56 :::
{9}

the absence of adding surviving husband as party, cannot be

termed as matrimonial cause and, therefore, according to the

learned Counsel for the petitioner, order passed by the trial Court,

exempting Respondent No.1 from payment of court fee, cannot be

sustained in view of the Notifications issued by the Government of

Maharashtra and law laid down by this Court in the case of

Prabhakar Dayaram Narkhede Vs. Vijaya alias Shakuntala

Ghanshyam Chaudhari, reported in 2007 (3) Bom.C.R. 722.

Learned Counsel submits that, in that case also, prayer in the suit

was for declaration, partition along with possession in respect of

ancestral properties. However, this Court has taken a view that

such dispute, which was raised in that case, falls outside the realm

of expression “matrimonial dispute”. Therefore, according to the

learned Counsel for the petitioner, said authoritative

pronouncement of this Court is squarely applicable in the facts of

this case.

12 It is further submitted that application filed by

Respondent No.1 herein – original plaintiff below Exhibit-28 for

amendment of the plaint should not have been allowed by the trial

Court since, firstly, the properties are situate at Rasta Peth, Pune,

secondly, husband is not made party to the suit by the plaintiff

and thirdly, original suit is for declaration and cancellation of

compromise deed dated 22.01.1999 in respect of properties of

father of Respondent No.1 and Respondents No.3 to 5. Therefore,

::: Downloaded on – 09/06/2013 17:45:56 :::
{10}

according to the Counsel for the petitioner, if at all plaintiff –

Respondent No.1 herein wanted to file suit for partition in respect

of properties belonging to her father-in-law, in that case, such suit

should have been filed in the competent Court at Pune. He further

submits that Respondent No.2 herein filed Regular Civil Suit No.

739/2008 before the Court of Civil Judge, Senior Division at Pune.

However, learned Counsel appearing for Respondents No.1 & 2

submits that said suit has been withdrawn on 18.02.2009.

13

Relying upon the grounds taken in the petition,

annexures thereto, Notifications mentioned hereinabove issued by

the Government of Maharashtra and the judgment of this Court in

the case of Prabhakar (supra), learned Counsel for the petitioner

would submit that the order dated 20.08.2009, passed below

Exhibit-28 and order dated 17.07.2010, passed below Exhibit-44

deserve to be quashed and set aside.

14 On the other hand, learned Counsel for Respondents

No.1 & 2, has invited my attention to the provisions of Section 17 of

the Civil Procedure Code and submits that though the properties

are situate at Pune, Respondent No.1 – original plaintiff can very

well file suit in respect of the said properties at Ahmednagar and

as such suit is filed and application for amendment has been

rightly entertained by the concerned Court. It is submitted that

the application for amendment of the plaint i.e. for adding

::: Downloaded on – 09/06/2013 17:45:56 :::
{11}

properties belonging to the father-in-law is perfectly maintainable.

Therefore, according to the learned Counsel for Respondents No.1

and 2, since the application filed by Respondent No.1 – original

plaintiff for amendment of the plaint was in respect of properties

owned by her father-in-law, that amounts to matrimonial dispute

and, therefore, the order passed by the trial Court exempting the

plaintiff – Respondent No.1 herein from payment of court fee is

perfectly sustainable in law. Learned Counsel has invited my

attention to the reported judgment of this Court in the case of

Manoramabai Keshav Joshi Vs. Arun Keshav Joshi & another,

reported in 2008 (1) Bom. C.R. 667 and submitted that in that

case also, this Court has considered both the Notifications and

held that if the property in respect of which dispute was raised,

belongs to husband and if husband is no more and, therefore, in

respect of such properties if the dispute is filed by wife, in that

case, it amounts to matrimonial dispute and, therefore, petitioner

therein was exempted from payment of court fees.

15 I have given due consideration to the rival

submissions. I have carefully gone through the orders impugned

in this petition. The order below Exhibit-28 is passed by the trial

Court on the application filed by Respondent No.1 for amendment

of the plaint. In my considered view, such application, thereby

praying for adding properties of father-in-law, in the suit which was

originally filed challenging the compromise deed in Regular Civil

::: Downloaded on – 09/06/2013 17:45:56 :::
{12}

Suit No.324/1998 should not have been allowed by the trial Court.

By way of application for amendment, Respondent No.1 herein has

prayed a totally different relief in respect of the properties of her

father-in-law. The relief, which was claimed by way of amendment,

was for partition and possession of the properties belonging to the

father-in-law. Admittedly, husband of plaintiff is not added as

party defendant in the said suit. The trial Court has not recorded

any finding in respect of the objection raised by petitioner herein

that husband of Respondent No.1 is alive and when husband of

plaintiff is alive, how such suit is maintainable, which is filed by

the wife for partition of the properties, which are owned by her

father-in-law. Second thing is that, admittedly, on the date when

such application for amendment was filed by the plaintiff i.e. for

adding the properties of her father-in-law, Regular Civil Suit No.

739/2008 was pending before the competent Court at Pune. It is

not in dispute that the properties, which Respondent No.1 wanted

to add by way of amendment in the plaint, are situate at Pune.

Therefore, in my considered view, the 4th Joint Civil Judge, Senior

Division, Pune, has wrongly allowed such application. It was open

for the plaintiff – Respondent No.1 herein to file a separate suit for

partition and possession of the properties owned by her father-in-

law before the competent Court. The learned Judge has not

addressed the issue raised by the petitioner herein that husband of

Respondent No.1 is alive and without making him party, suit is

filed by the wife. In fact, the learned Judge should have addressed

::: Downloaded on – 09/06/2013 17:45:56 :::
{13}

this issue first and then should have proceeded to pass final

orders. Therefore, in my considered view, the 4th Joint Civil Judge,

Senior Division, Ahmednagar, should not have allowed the

application filed by Respondent No.1 for amendment of the plaint

i.e. for adding the properties owned by her father-in-law and to

pray for partition of such properties.

16 Coming to the order dated 17.07.2010, passed by the

5th Joint Civil Judge, Senior Division, Aurangabad, below

application Exhibit-44 in Regular Civil Suit No.368/2007, on

careful perusal of the said order, it reveals that not a single reason

has been assigned by the Court below as to why application filed

by the petitioner has been rejected and as to why Respondent No.1

should be exempted from payment of court fee. Respondent No.1

has not referred to any particular provision, notification or relied

upon any judgment under which she is entitled for exemption from

payment of court fee. If the learned Judge was convinced to pass

order granting exemption to Respondent No.1 from payment of

court fees, certainly reasons should have been assigned in the said

order. However, from careful reading of the said order, it reveals

that the said order is totally silent and no reasons are assigned

while exempting Respondent No.1 from payment of court fee.

17 Though, learned Counsel appearing for Respondents

No.1 and 2, strenuously contended that the judgment of this Court

::: Downloaded on – 09/06/2013 17:45:56 :::
{14}

in the case of Manoramabai (supra) takes a view that if the widow

has filed proceedings in respect of properties owned by husband

and if husband is dead, and the wife has claimed possession of the

said property, in that case, wife is exempted from payment of court

fees. On careful reading of the facts of that case, it is clearly

emerged that husband of the petitioner therein was no more and

dispute was regarding house owned by the husband, and wife did

file proceedings in respect of said house. In the instant case,

Respondent No.1 herein has filed application for amendment of the

plaint seeking therein adding of the properties of her father-in-law

and claiming relief of partition and possession in the suit, which

was originally filed for altogether different reliefs. Secondly,

admittedly, husband is not party to the suit or application which

was filed for amendment. Thirdly, the properties are situate at

Pune. Therefore, in my considered opinion, if the order dated

20.08.2009, passed below application Exhibit-28 is quashed and

set aside, the order dated 17.07.2010, below application Exhibit-44

has to go since the application for amendment should not have

been allowed by the trial Court. The facts of the case cited by the

Counsel for the petitioner in the case of Prabhakar (supra) are

similar to the facts in the present case. This Court, in the cited

judgment, has taken a view that if the suit is filed for declaration

and partition along with separate possession in respect of

ancestral properties, in that case, the dispute is outside the realm

of expression “matrimonial dispute”.

::: Downloaded on – 09/06/2013 17:45:56 :::

{15}

18 For the reasons stated hereinabove, both the orders i.e.

the order dated 17.07.2010, passed by 5th Joint Civil Judge, Senior

Division, Ahmednagar, below application Exhibit-44 in Regular

Civil Suit No.368/2007; and order dated 20.08.2009, passed by 4th

Joint Civil Judge, Senior Division, Ahmednagar, below application

Exhibit-28 in Regular Civil Suit No.368/2007, are quashed and set

aside.

19

Rule is made absolute to the above extent and petition

stands disposed of. In the facts and circumstances of this case,

there shall be no order as to costs.

S.S.SHINDE

JUDGE

adb/wp807210

::: Downloaded on – 09/06/2013 17:45:56 :::

Smt. Sushil Kaur vs M/S Aurangabad Ginning & Pressing on 22 September, 2011

Bombay High Court
Smt. Sushil Kaur vs M/S Aurangabad Ginning & Pressing on 22 September, 2011
Bench: S. S. Shinde
                                   1
                                                                cra105.06




                                                                
           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD.




                                        
           CIVIL REVISION APPLICATION NO. 105 OF 2006


      1.    Smt. Sushil Kaur W/o Sukhbirsingh




                                       
            Chhatwal, Aged : 56 years, Occ :
            Household, R/o Raj Tara Bungalow,
            Osmanpura, Aurangabad.
      2.    Gurbirsingh    S/o    Sukhbirsingh




                             
            Chhatwal, Age : 40 years, Occ :
            Business, R/o As above.
      3.
                
            Sathirsingh    S/o    Sukhbirsingh
            Chhatwal, Age : 38 years, Occ :
            Business, R/o As above.
               
                                                    ..PETITIONERS
                        -VERSUS-
      1.    M/s Aurangabad Ginning & Pressing
            Factory, Jaffar Gate, Aurangabad,
      


            Through its G.P.A. Kantilal S/o
            Hiralal Mithawala, Age : 70 years,
   



            Occ : Service, R/o Supari Hanuman
            Road, Aurangabad.
      2.    Municipal Corporation, Aurangabad





            through its Commissioner.
                                                  ..RESPONDENTS

                            ...
     Shri K.C. Sant, Advocate for applicants.
     ٍShri P.S. Sonpethkar, advocate for respondent





      no.1
                            ...


                                       CORAM: S.S. SHINDE,J.

                          Reserved on : 23rd August, 2011
                      Pronounced on : 22nd September, 2011




                                        ::: Downloaded on - 09/06/2013 17:45:52 :::
                                      2
                                                                    cra105.06

     : JUDGMENT:

1. This Civil Revision Application is filed

aggrieved by the order passed on application

below Exhibit-10 in Misc. Civil Appeal no. 177

of 2006 dated 1st December, 2006 by the Adhoc

Additional District Judge-3, Aurangabad.

2. The

revision applicants herein are the

original plaintiffs, who have filed the suit

against the respondent no.2 praying for

perpetual injunction from demolishing the

construction on the suit land. In the said

suit, the revision applicants filed an

application for temporary injunction. However,

same was rejected.

Being aggrieved with the same, the

applicants filed Misc. Civil Appeal no. 177 of

2006 before the District Court along with

application Exhibit-5 for temporary

injunction.

The respondent no.1 herein thereafter

::: Downloaded on – 09/06/2013 17:45:52 :::
3
cra105.06

filed application Under Order 1 Rule 10(2) of

Code of Civil Procedure for addition of

parties in Misc. Civil Appeal no. 177 of 2006.

The avernments in the said application filed

by the respondent no.1 herein are as under :-

” 1. That, the applicant being owner
and possessor of the property and
ig portion of Survey No. 57, having
Municipal No.4-18-47/1, C.T.S. No.
13162 and 13163, situated at Jafar
Gate, Aurangabad. They filed the suit

bearing R.C.S. No. 218/1972 for
possession of a room admeasuring 10′
X 10′ and for perpetual injunction
for the rest of portion against (1)

Nutanbai, (2) Ravelsingh, (3)
Pratpsingh and (4) Mir Maqsood Ali

Khan. After hearing the suit on
merit, it came to be decreed by the
Hon’ble 2nd Joint Civil Judge, Junior
Division, at Aurangabad, by its

Judgment and Decree dated 30.9.1975.

The defendnats challenged said decree
by filing R.C.A. No. 195/1975 in the
Hon’ble District Court, Aurangabad,
and said appeal came to be allowed on
25.10.1978. Against the said decree

of Appellate Court, the present
applicant preferred IInd Appeal No.
189/1979 in the Hon’ble High Court
and said appeal came to be allowed on
16.12.1991, but, due to interpolation
in the said judgment in High Court,
the applicant filed C.A. No. 415/2003
for correction of Judgment and
deletion of interpolation. In said

::: Downloaded on – 09/06/2013 17:45:52 :::
4
cra105.06

C.A. the husband of the plaintiff No.

1 Sukhbirsingh, who purchased said
property during pendency of the suit

was also unpleaded as party and after
hearing him, C.A. No. 415/2003 came
to be allowed on 21.09.2004.

Sukhbirsingh unsuccessfully
challenged the said order by filing

S.L.P. No. 21339/2004 in Hon’ble
Supreme Court of India.

2. That, the applicant filed

Reuglar Darkhast No. 104/1994, for
execution of decree passed in R.C.S.

No. 218/1972 and confirmed by Hon’ble
High Court. The applicant came to
know that the husband of present
plaintiff no.1 is intending to start

construction on suit property and
therefore, he filed application for
temporary injunction restraining
Sukhbirsingh and others and

defendants from changing the nature
of suit property or alienating the

said property or creating third party
interest on 6.7.2005. The Hon’ble 5th
Joint Civil Judge, Junior Division,
Aurangabad, after hearing pleased to

allow the application on 22.8.2005.

       During    the     pendency     of    said
       application     status-quo    order   was

passed on 8.7.2005. In spite of
injunction order, Sukhbirsingh and
after his demise the present

plaintiffs continued the construction
work and therefore, the applicant
filed an application U/o 39 Rule 2-A
of Civil Procedure Code, which is
pending.

3. As such, the construction work
of the plaintiffs is during
enforcement of injunction order

::: Downloaded on – 09/06/2013 17:45:52 :::
5
cra105.06

passed by the Court at the instance

of the defendants as such, the
applicant is interested party being

title holder of the suit property.
The plaintiffs have hided all above
referred material facts from the
Hon’ble 2nd Joint Civil Judge, Senior
Division, Aurangabad, and tried to

obtain equitable relief of temporary
and perpetual injunction by
misguiding the Hon’ble Court. When,
the applicant came to know about

filing of the said suit, the
applicant also filed application for

adding him as party in R.C.S. No.
870/2006 and the said application is
for consideration before the said
Court.

4. However, the present appellant/
original plaintiff filed appeal in
this Hon’ble Court and thereby

challenging the order of 2nd Joint
Civil Judge, Senior Division,

Aurangabad, issuing show cause notice
and not granting interim relief. The
said appeal is also fixed for final
hearing in this Hon’ble Court. As

such, the applicant being title
holder and interested party in the
suit and the applicant wanted to
protect the illegal construction made
by her by violating the order of
injunction and that is also on the

property of the applicant. As such,
the applicant may kindly be added as
party to this appeal. The applicant
is interested party in the present
appeal.

HENCE, IT IS PRAYED THAT :

This application may kindly be

::: Downloaded on – 09/06/2013 17:45:52 :::
6
cra105.06

allowed and the applicant may be

added as respondent in the present
appeal and oblige.”

3. The said application filed by the

respondent no.1 herein was allowed by Adhoc

Additional District Judge-3, Aurangabad

thereby directing the revision applicants

herein, to add respondent no.1 as defendant in

appeal

within three days from the date of

order. Hence, this Civil Revision Application.

4. It is the case of the revision applicants

that late Sukhbirsingh Tarasingh Chatwal, the

husband of revision applicant no.1 and father

of applicant nos. 2 and 3, was the owner and

possessor of property bearing CTS no. 13163

admeasuring 1411.5 Sq. Meters (part of Survey

no. 56) situated at Bahadurpura, Jalna Road,

Aurangabad. Late Sukhbirsingh was in

possession of the property since 1971. N.A.

permission was granted by the Collector on

18th September, 1992. Since, 1979, there was

::: Downloaded on – 09/06/2013 17:45:52 :::
7
cra105.06

an entry of late Sukhbirsingh in the P.R.

card. In 1992, late Sukhbirsingh also

constructed a compound wall for protection of

the suit property. He submitted a plan for

construction permission. However, the

respondent no.2 herein neither granted

permission nor rejected the permission,

under

therefore, in view of the deeming provision

the Maharashtra Regional and Town

Planning Act, there is a deemed permission,

and therefore, the construction of building as

per the plan was started. Sukhbirsingh died on

15.04.2005 and the names of the present

applicants have been recorded as owners of the

property being legal heirs of late

Sukhbirsingh. In the meanwhile, the respondent

no.2 sanctioned the plan and granted

permission to construct the building as per

the plan by its order dated 23rd June, 2005.

After the death of late Sukhbirsingh, the

names of the revision applicants are recorded

::: Downloaded on – 09/06/2013 17:45:52 :::
8
cra105.06

in the city survey record. It is the case of

the applicants that some ill-motivated people

have made complaint to the respondent no.2

stating that this construction is illegal and

it be demolished.

The respondent no.2 thereafter issued the

notice ig to the revision

applicants replied the said notice and pointed
applicants. The

out that they have not committed any illegal

act nor they have violated construction

permission. It is further submitted that the

respondent no.2 by ignoring the permission

granted by its own authority is now bent upon

to demolish the construction at the behest of

some ill-motivated persons. Therefore, the

applicants herein filed the Civil Suit bearing

Regular Civil Suit No. 870 of 2006 in the

Court of Civil Judge, Senior Division,

Aurangabad. It is submitted that application

for temporary injunction was also filed.

However, same came to be rejected by the Civil

::: Downloaded on – 09/06/2013 17:45:52 :::
9
cra105.06

Judge, Senior Division, Aurangabad. Therefore,

the applicants filed Misc. Civil Appeal before

the District Judge, Aurangabad. The

application for temporary injunction was also

filed. It is the case of the applicants that

the respondent no.1 without there being any

concern with the dispute in the suit, made

application on flimsy grounds and prayed for

adding it as party respondent in the appeal.

In fact, the respondent no.1 has no concern

with the property in question.

The say was filed by the applicants to the

application filed by the respondent no.1 for

adding him as party stating therein that such

application is not maintainable. The

plaintiffs themselves are the masters of their

suit and they can not be compelled to add any

party to the litigation. It is submitted that

the applicants have not claimed any relief

against the respondent no.1 and the applicants

carrying out the construction as per the plan

::: Downloaded on – 09/06/2013 17:45:52 :::
10
cra105.06

submitted and sanction granted by the

respondent no.2 herein. It is further the case

of the applicants that when there is no relief

prayed against the respondent no.1, directing

the applicants to add the respondent no.1 as

party in the appeal itself is abuse of process

of law and further it would add to

complications. It is submitted that no person

can be forced to litigate against the person

who is not concerned with the subject matter

of the suit. It is further submitted that the

respondent no.1 is neither to gain nor to

loose in the litigation pending between the

applicants and the respondent no.2. Therefore,

for all these reasons, the impugned order

allowing application of the respondent no.1

and directing the revision applicants to add

him as party defendant in the suit, ought not

to have been passed by the Appellate Court.

5. The learned counsel appearing for the

revision applicants submits that before filing

::: Downloaded on – 09/06/2013 17:45:53 :::
11
cra105.06

of suit bearing Regular Civil Suit no. 218 of

1997, the property of the respondents was sold

to one Narsing Kandi by registered sale deed.

However, when the respondent no.1 firm moved

Execution Petition no. 104 of 1994, said Kandi

has also moved Execution Petition no. 166 of

1993 pursuant to the alleged Sale Deed. Thus,

the respondent no.1 has no concern with the

said property in suit. It is submitted that

the Civil Suit bearing no. 218 of 1972 was

filed by respondents for possession of two

huts admeasuring 10 feet X 10 feet abutting to

Jalna Road in Survey no. 57 and for injunction

not to disturb the possession over the suit

land. The respondents have no concern with the

property bearing CTS no. 13163. By suppressing

material facts and by misrepresentation the

suit came to be filed only with an intention

to grab the property when in fact they have no

concern whatsoever with the property owned by

the applicants. It is submitted that the

property mentioned in the prayer clause is

::: Downloaded on – 09/06/2013 17:45:53 :::
12
cra105.06

totally different than the property belonging

to the applicants. Further, in the entire suit

CTS number is not mentioned though CTS number

is given in the year 1971. It is submitted

that the said suit was decreed on the basis of

a Map Exh. 118, which clearly shows the

property is in Dawoodpura i.e. towards

southern
side of Jalna road,

property of the applicants is on northern side
whereas the

of Jalna Road. It is submitted that, the

defendants preferred appeal. In the Second

Appeal, the name of Nutanbai from whom the

suit property was purchased, was deleted. It

is further submitted that it is pertinent to

note that said Sukhbirsingh was never party in

the entire suit proceeding, i.e. Regular Civil

Suit no. 218 of 1972, Regular Civil Appeal no.

195 of 1978, Second Appeal no. 189 of 1979 and

Civil Application no. 415 of 2003. The

judgment delivered in suit is a Judgment in

personum and therefore, since late

Sukhbirsingh was not a party to it, it is not

::: Downloaded on – 09/06/2013 17:45:53 :::
13
cra105.06

binding upon the applicants.

It is further submitted that as per

the record from Registrar of Firms, the firm

Aurangabad Ginning & Pressing Factory,

Aurangabad was dissolved way back in the year

1963 itself and more specifically on 31st

favour

March, 1963. The alleged power of attorney in

of Kantilal Mithawala given by one

Minichor Chinoy is false and wrong. Re-

delegation of power that too, when the firm

itself is not in existence is not recognized

by law. It is further submitted that at the

time of filing of suit, the width of Jalna

road was 20 feet, whereas now the width of

road is 132 feet. Even now the property of the

applicants is 40 feet away from Jalna Road. It

is further submitted that the area of suit

property shown in the plaint is 15000 feet,

whereas, the area shown below Exh. 118 comes

to be 14000 feet. The area of CTS No. 13162 is

10800 feet, thus, total comes to 25800 feet.

::: Downloaded on – 09/06/2013 17:45:53 :::
14

cra105.06

However, the decree is only to the extent of

14000 feet. On this ground also the property

in Regular Civil Suit no. 218 of 1972 and the

property in possession of the applicants does

not match anywhere.

It is further submitted that in the

Judgment of Mantralaya in proceedings bearing

No. LAND/3904/782/CR123/L.1/CR117(12)/2004/A &

R, it is clearly held that the property is

different than suit property bearing Survey

no. 57. It is also held that Kantilal

Mithawala does not have valid power of

attorney. This judgment was given in view of

the judgment passed by this Court. It is

submitted that there is a report of Bailiff in

the Execution Proceedings at Exhibit-50 that

the property mentioned in prayer clause of

suit No. 218 of 1972 is not identifiable. It

is further mentioned that the plot no.

4-18-47/1 i.e. the property of the applicants

is on west side of property mentioned in civil

::: Downloaded on – 09/06/2013 17:45:53 :::
15
cra105.06

suit no. 218 of 1972 and it is not concerned

with the property involved in present

proceeding. In no any proceeding including he

Execution Petition, the respondent no.1 has

ever sought that they have lost possession.

Thus, the respondent no.1 is not necessary

party in the proceeding filed by the

applicants and hence, the respondent no.1 has

no locus standi.

It is further submitted that the Municipal

Corporation has filed affidavit in Writ

Petition no. 3628 of 2006. In the said

affidavit, it is clearly stated by the

Municipal Corporation that, the Corporation

has granted construction permission by duly

considering the ownership of the applicants.

It is further submitted that, the respondent

no.1 had taken objection and after considering

that also, it was found that the applicants

are the owners. Hence, the permission granted

by the Corporation is by following due process

::: Downloaded on – 09/06/2013 17:45:53 :::
16
cra105.06

of law. It is submitted that against the order

of Mantralaya, a Writ Petition is filed by

respondent no.1 and the same is pending and

also there is no stay by this Court.

Therefore, relying upon the avernments made in

the Civil Revision Application, grounds raised

therein, Annexures to the said Revision

Application and the written notes of arguments

filed by the applicants, the learned Counsel

appearing for the revision applicants would

submit that this Revision Application deserves

to be allowed.

6. On the other hand, the learned counsel

appearing for the respondent no.1 submitted

that Revision Application filed against the

order allowing the addition of party and

therefore, the order is interlocutory and no

Civil Revision Application is maintainable.

Because of the order impugned in the Civil

Revision Application, the proceedings before

the Lower Court are not likely to be decided

::: Downloaded on – 09/06/2013 17:45:53 :::
17
cra105.06

finally. There is also no final decision in

the case. Thus, at the outset, it is submitted

that the Civil Revision Application is not

maintainable and there is no question of

hearing on merits of the case.

The learned counsel further submitted that

the
respondent no.1 Aurangabad

Pressing Factory had filed Civil Suit bearing
Ginning &

Regular Civil Suit no. 218 of 1972 before the

Civil Judge, Junior Division, Aurangabad

against one Nutanbai and three others for

injunction and declaration of ownership. The

plaintiff had claimed that the plaintiff is

owner of the land survey no. 57 bearing

Municipal No. 4-18-47/1 admeasuring 19A 8 G

situated at Jafar Gate, Bahadurpura,

Aurangabad. It is further submitted that as

the defendant in the said suit had tried to

encroach over portion of survey no. 57 and

erected hut of 10 ft. x 10 ft., the suit was

filed claiming injunction on the basis of

::: Downloaded on – 09/06/2013 17:45:53 :::
18
cra105.06

title. The learned Judge has framed issues and

held that the plaintiff i.e. respondent no.1

herein, is owner of the suit property. The

learned counsel appearing for the respondent

no.1 invited my attention to the copy of the

judgment in Regular Civil Suit 218 of 1972,

which is annexed with the written notes of

i.e.

arguments. It is proved that, the plaintiff

respondent no.1, is owner and is in

possession of the suit property and granting

decree for injunction and also recovery of

possession of property admeasuring 10 ft x 10

ft. is sought by the plaintiff.

It is submitted that aggrieved by the

judgment and decree in Regular Civil Suit no.

218 of 1972, the Regular Civil Appeal no. 195

of 1975 was filed before the District Court,

Aurangabad and same came to be allowed.

Against that, the plaintiff had filed Second

Appeal no. 189 of 1979 before this Court. It

is submitted that by judgment dated

::: Downloaded on – 09/06/2013 17:45:53 :::
19
cra105.06

16.12.1991, this Court has allowed the Second

Appeal and restored the decree of the trial

Court. Appeal was allowed in entirety.

However, there was interpolation and tampering

in the judgment. Para No. 17A on page 24A was

added and in the operative order words “as

against defendant no.2” have been added. In

view ofig this, the plaintiff

Application no. 415 of 2003 before this Court.

filed Civil

In the said application, one Sukhbirsingh S/o

Tarasingh Chatwal suo motu appeared and filed

Civil Application no. 5402 of 2004 and stated

that he had purchased the suit property during

the pendency of Appeal, by registered sale

deed dated 27.10.1978 and he claimed that he

is in possession of the suit property and if

this Civil Application is allowed, he is also

likely to be affected.

This Court however considered the

application and allowed his intervention. He

was heard at length along with other

::: Downloaded on – 09/06/2013 17:45:53 :::
20
cra105.06

respondents and this Court held that there was

tampering and directed to correct the judgment

accordingly. Against the said judgment of this

Court, the husband of the present applicant

no.1-Sukhbirsingh Chatwal had approached the

Hon’ble Apex Court in S.L.P. No. 21339 of 2004

and same was dismissed on 25.10.2004.

It is submitted that during the pendency

of the suit, the said Sukhbirsingh had

purchased property and in violation of the

Court order, he had started construction in

the year 2005 over the suit property. It is

submitted that the present plaintiff had filed

Regular Darkhast no. 104 of 1994. When in the

year 2005, construction was started, the

decree holder plaintiff has filed injunction

application on 06.06.2005 and the said

application was allowed by the Civil Judge,

Junior Division, Aurangabad on 22nd August,

2005 and thereby the plaintiffs are restrained

from carrying out construction over the suit

::: Downloaded on – 09/06/2013 17:45:53 :::
21
cra105.06

property. However, the construction is still

continuing and therefore, the contempt

proceedings are pending before the Trial

Court.

It is submitted that in utter disregard of

order of this Court, the present applicant

Sushil Kaur and others have executed sale deed

in favour of third party in respect of suit

property. Therefore, time and again, complaint

was lodged by present plaintiff with the

Municipal Corporation and other authorities.

It is further submitted that one news item was

published in the news paper and therefore, the

Regular Civil Suit no. 870 of 2006 was filed

by the revision applicants, in which no

injunction was granted. As soon as the

respondent no.1-Aurangabad Ginning and

Pressing Factory came to know about the said

suit, filed application for addition of

parties. It is submitted that the present

respondent no.1-Aurangabad Ginning and

::: Downloaded on – 09/06/2013 17:45:53 :::
22
cra105.06

Pressing Factory has filed application for

addition of parties and same application was

allowed by order dated 05.12.2005. It is

submitted that the applicants herein by

concealing all real material facts and

litigation by filing Suit and Appeal have

obtained the order of injunction. The illegal

property.

construction have been carried out in the said

The sale deed is executed in

violation of the order of this Court. It is

further submitted that the respondent no.1 has

filed Writ Petition no. 3628 of 2006 before

this Court. In the said Writ Petition, the

Municipal Corporation, Aurangabad has clearly

stated that permission of construction given

to Sushil Kaur Chatwal and others is revoked

by order dated 14.08.2006 and Corporation is

not reconsidering the same.

The learned Counsel appearing for the

respondent no.1 invited my attention to the

order passed in the said Writ Petition and

::: Downloaded on – 09/06/2013 17:45:53 :::
23
cra105.06

Review Petition. It is submitted that action

taken by the Municipal Corporation, Aurangabad

is in pursuance of constant complaint made by

respondent no.1 herein, who is real owner of

the factory. It is submitted that the

applicants have no regard to the law and the

orders of this Court and flouted the same. It

is submitted that in a proceedings i.e. Civil

Application no. 415 of 2003, said Sukhbirsingh

Tarasingh Chatwal, the husband of the

applicant no.1, had made a statement that he

had purchased the suit property from defendant

no.1-Nutanbai and he is likely to be affected

by the decision of this Court. It is further

submitted that now the applicants in the

subsequent proceedings are stating that the

suit property i.e. the property purchased by

them is different from the suit property. This

is totally and intentionally false statement

on oath in order to mislead the Court.

It is further submitted that the suit

::: Downloaded on – 09/06/2013 17:45:53 :::
24
cra105.06

property which is purchased by the husband of

the present applicant no.1 during the pendency

of the suit from Nutanbai, and therefore, the

respondent no.1 herein who succeeded in Civil

proceedings against Nutanbai is necessary

party to the suit filed by the applicants-

plaintiffs. The learned Counsel appearing for

respondent no.1 in support of his contention

that the respondent no.1 is necessary party to

the suit invited my attention to the title

clause of Civil Suit bearing Regular Civil

Suit no. 218 of 1972 and submitted that

Nutanbai is the respondent no.1 in the said

suit, which was filed by respondent no.1

herein. The learned Counsel further invited my

attention to the title clause in Second Appeal

no. 189 of 1979, where the Aurangabad Ginning

and Pressing Factory i.e. respondent no.1

herein is appellant and Nutanbai is respondent

no.1 therein. The learned counsel further

invited my attention to the title clause of

the Writ Petition no. 3628 of 2006 in which

::: Downloaded on – 09/06/2013 17:45:53 :::
25
cra105.06

the respondent no.1 is the petitioner and the

Municipal Corporation, Aurangabad is

respondent no.1 and there are also added

respondents in the said Writ Petition i.e.

Sukhbirsingh Chatwal, Sushilkaur Chatwal,

Gurbirsingh Chatwal, Sathirsingh Chatwal and

Rawelsingh Arjunsigh. Therefore, the learned

counsel ig would submit that

herein were made party respondents even in the
the applicants

said Writ Petition. The learned counsel

further invited my attention to Review

Application no. 56 of 2010 in Writ Petition

no. 3628 of 2006, in which the applicants

herein appear to be revision applicants in

those proceedings and the respondent no.1 is

party respondent no.1 even in those

proceedings. The learned counsel further

invited my attention to other documents and

also submitted that the respondent no.1 is a

necessary party in the suit, and therefore,

the Appellate Court has rightly allowed the

application filed by the respondent no.1 and

::: Downloaded on – 09/06/2013 17:45:53 :::
26
cra105.06

directed the applicants to add the respondent

no.1 as respondent in the appeal. Therefore,

such order cannot be interfered with or upset

in the Revisional jurisdiction.

7. I have given due consideration to the

rival submissions and I have also perused the

Civil Revision Application, Annexures thereto,

other documents placed on record and written

notes of arguments filed by the learned

counsel for the respective parties. At the

outset it would be relevant to reproduce the

provisions of Order 1 Rule 10(2) of the Code

of Civil Procedure, which read thus:

“Order 1 Rule 10(2) : Court may
strike out or add parties : The Court
may at any stage of the proceedings,
either upon or without the

application of either party, and on
such terms as may appear to the Court
to be just, order that the name of
any party improperly joined, whether
as plaintiff or defendant, be struck
out, and that the name of any person
who ought to have been joined,
whether as plaintiff or defendant, or
whose presence before the Court may

::: Downloaded on – 09/06/2013 17:45:53 :::
27
cra105.06

be necessary in order to enable the

Court effectually and completely to
adjudicate upon and settle all the

questions involved in the suit, be
added.”

From perusal of the provisions of Order 1

Rule 10(2) of the Code of Civil Procedure, it

is abundantly clear that the Court may at any

stage of the proceedings, either upon or

without the application of either party, may

allow to join as party to the proceedings

whether as plaintiff or defendant or whose

presence before the Court may be necessary in

order to enable the Court effectually and

completely to adjudicate upon and settle all

the questions involved in the suit. Therefore,

the powers exercised by the Adhoc District

Judge-3, Aurangabad while allowing the

application of the respondent no.1 herein for

adding them as party to the suit filed by the

applicants are within the fore corners of law

and certainly governed by the provisions of

Order 1 Rule 10(2) of the Code of Civil

::: Downloaded on – 09/06/2013 17:45:53 :::
28
cra105.06

Procedure.

Therefore, in my considered view, the

Adhoc District Judge-3, Aurangabad has acted

within the fore corners of the provisions of

Order 1 Rule 10(2) of the Code of Civil

Procedure. The District Judge had power to

entertain igthe application

respondent no.1 and such powers are exercised
filed by the

by the concerned Court properly.

8. From perusal of the contents of the

application filed by the respondent no.1

before the District Court, Aurangabad, it is

abundantly clear that in various proceedings,

the respondent no.1 was party. It is also not

in dispute that the suit bearing Regular Civil

Suit no. 218 of 1972, which was filed by the

respondent no.1 herein in the year 1972

against Nutanbai and three others, the husband

of the applicant no.1 did purchase the

property from said Nutanbai i.e. plot C.T.S.

::: Downloaded on – 09/06/2013 17:45:53 :::
29

cra105.06

Nos. 13162 and 13163. Therefore, it is clear

that Nutanbai, the vendor of the applicants

and others were restrained from carrying out

any construction over the disputed site from

30.09.1975. It is also relevant to mention

that the judgment of Regular Civil Suit no.

218 of 1972 was challenged in Second Appeal

No. 189
of 1979, wherein

confirmed the decree passed by the trial Court
this Court has

in Regular Civil Suit no. 218 of 1972. Late

Sukhbirsingh did file Special Leave Petition

before the Hon’ble Apex Court, aggrieved by

the judgment of this Court in Second Appeal

no. 189 of 1979. This position is not disputed

by the applicants. Therefore, said Nutanbai

was admittedly party in Regular Civil Suit no.

218 of 1972, wherein the respondent no.1

herein was plaintiff and Nutanbai was

defendant and she was restrained from carrying

out the construction on disputed site. As

stated earlier, late Sukhbirsingh purchased

the property from Nutanbai and she was

::: Downloaded on – 09/06/2013 17:45:53 :::
30
cra105.06

restrained as stated above. As such

Sukhbirsingh stepped into the shoe of

Nutanbai. Therefore, the Appellate Court after

appreciating the rival contentions and

documents brought on record held that,

Sukhbirsingh cannot say that the judgment and

decree passed in Regular Civil Suit no. 218 of

1972 on 30th September, 1975 is not binding on

him because he was not party to the said suit.

The deceased Sukhbirsingh had obtained the

permission for construction on 23rd June,

2005, however, he did not disclose that the

judgment and decree passed in Regular Civil

Suit no. 218 of 1972 dated 30th September,

1975 to the Municipal Corporation, while

obtaining the permission.

9. The Appellate Court after appreciating the

rival submissions and documents placed on

record, reached to the conclusion that, the

case in hand admittedly on the basis of a

decree, the execution proceeding bearing No.

::: Downloaded on – 09/06/2013 17:45:53 :::
31
cra105.06

104 of 1994 and 166 of 1993 came to be filed

against the applicants herein for getting the

possession as per the judgment and decree and

restraining order of perpetual injunction from

causing any illegal interference either

personally or through their agents and

servants in possession of the plaintiff i.e.

respondent

appellate
igCourt
no.1 herein.

                              reached     to
                                               Therefore,

                                                the       conclusion
                                                                       the
              

that,”it can safely be said that in view of

the judgment of the Regular Civil Suit no. 218

of 1972 and pendency of execution proceeding

the applicant has substantial interest in the

suit property.” It is further observed by the

appellate Court that, “the applicant i.e.

respondent no.1 herein is required to be added

as party to the appeal as respondent.”

10. On careful perusal of the documents

produced by the respondent along with the

written notes of arguments and avernments in

the application, which was filed before the

::: Downloaded on – 09/06/2013 17:45:53 :::
32
cra105.06

appellate Court for adding him as party in the

appeal, it is crystal clear that the

respondent no.1 has a substantial interest in

the suit property. Therefore, for complete and

effectual disposal of the proceeding filed by

the applicants herein before the Courts below,

the respondent no.1 is a necessary party.




          The
                
                  appellate        Court        on       perusal           of
               

avernments in the application and number of

documents produced on record, has reached to

the definite and correct conclusion that the

respondent no.1 is a necessary party in the

proceedings filed by the applicants, and

therefore, I do not find any reason to

interfere in the judgment and order passed by

the Adhoc District Judge-3, Aurangabad, which

is impugned in this Revision Application.

11. The Supreme Court in the case of “Ramesh

Hirachand Kundanmal V/s Municipal Corporation

of Greater Bombay and others” reported in

::: Downloaded on – 09/06/2013 17:45:53 :::
33
cra105.06

(1992) 2 S.S.C. 524 held that while

considering the provisions of Order 1 Rule

10(2) of the Code of Civil Procedure, in case

of prayer for addition of necessary party, the

Court has judicial discretion which it has to

exercise having regard to facts and

circumstances of the case. In exercise of this

discretion ig court can direct

though dominus litis, to implead a person as a
a plaintiff,

necessary party defendant.

12. The Supreme Court in the case of

“Sumtibai and others V/s Paras Finance Co.

Regd. Partnership Firm Beawer (Raj) Through

Mankanwar (Smt) W/o Parasmal Chordia (Dead)

and others” reported in (2007) 10 S.C.C. 82,

while interpreting the provisions of Order 1

Rule 10(2) of the Code of Civil Procedure held

that, while determining who is proper party of

the proceedings, if a party can show a fair

semblance of title or interest, he can

certainly file an application for impleadment.

::: Downloaded on – 09/06/2013 17:45:53 :::
34

cra105.06

13. The contentions on merit of the parties

are not taken away by the impugned judgment

and order. The revision applicants can agitate

all the points available to them during the

course of trial or hearing before the

appropriate Courts. Therefore, viewed from any

angle,

impugned

in my

judgment
opinion,

and
interference

order in
in

revisional
the

jurisdiction is wholly unwarranted, since the

power/jurisdiction exercised by the Adhoc

District Judge-3, Aurangabad is perfectly

sustainable under the provision of Order 1

Rule 10(2) of the Code of Civil Procedure.

Therefore, the impugned judgment and order

stands confirmed. The Civil Revision

Application stands rejected. Rule stands

discharged.

Sd/-

[ S.S. SHINDE, J ]

ga s/cra105.06

::: Downloaded on – 09/06/2013 17:45:53 :::

The Balasaheb Satbhai Merchant … vs The State Of Maharashtra on 21 September, 2011

Bombay High Court
The Balasaheb Satbhai Merchant … vs The State Of Maharashtra on 21 September, 2011
Bench: A. V. Potdar
                                       {1}     Cri. Application No.3362/2009

     drp
           IN THE HIGH COURT OF JUDICATURE OF BOMBAY




                                                                       
                         BENCH AT AURANGABAD




                                               
               CRIMINAL APPLICATION NO.3362 OF 2009

     The Balasaheb Satbhai Merchant Coop Bank Ltd.,       APPLICANT
     Kopargaon, Tq-Kopargon, 




                                              
     Dist-Ahmednagar, 
     Throught its Board Member of Liquidator, 
     Sham s/o Vyankatesh Kshirsagar, 
     Age-56 years, Occ-Business




                                   
     R/o Kapad Bazar, Kopargoan, 
     Tq-Kopargaon, Dist-Ahmednagar
                     
           VERSUS
                    
     1.    The State of Maharashtra                         RESPONDENTS

     2.    The District Superintendent of Police, 
           Ahmednagar
      


     3.    Sanjay Vasantrao Satbhai
   



           Age-47 years, Occ-Business
           R/o Kapad Bazar, Kopargaon, 
           Tq-Kopargaon, Dist-Ahmednagar. 





     4.    Ashokchand Shobhachand Kothari
           Age-55 years, Occ-Business
           R/o Indira Path, Kopargaon, 
           Tq-Kopargaon, Dist-Ahmednagar. 





     5.    Rameshwar Jagannath Mundada
           Age-54 years, Occ-Business
           R/o Gandhi Chowk, Kopargaon, 
           Tq-Kopargaon, Dist-Ahmednagar. 

     6.    Nandkumar Ramchandra Vispute
           Age-48 years, Occ-Business




                                               ::: Downloaded on - 09/06/2013 17:45:42 :::
                                    {2}         Cri. Application No.3362/2009

           R/o Sonar Galli, Kopargaon, 
           Tq-Kopargaon, Dist-Ahmednagar. 




                                                                       
     7.    Kishor Swarupchand Gangwal, 




                                               
           Age-50 years, Occ-Business
           R/o 13 Bunglow, Kopargaon, 
           Tq-Kopargaon, Dist-Ahmednagar. 




                                              
     8.    Ramanlal Madanlal Kale
           Age-62 years, Occ-Business
           R/o Indira Path, Kopargaon, 
           Tq-Kopargaon, Dist-Ahmednagar. 




                                 
     9.    Sanjay Narayandas Thole
                    
           Age-44 years, Occ-Business
           R/o Near Sanjay Medical, Kopargaon, 
           Tq-Kopargaon, Dist-Ahmednagar. 
                   
     10.   Rajendra Manikchand Phulpagar
           Age-50 years, Occ-Business
           R/o Gokulnagari, Kopargaon, 
      


           Tq-Kopargaon, Dist-Ahmednagar. 
   



     11.   Dilip Chunnilal Gundecha
           Age-62 years, Occ-Retired Managar
           R/o Fadarwadi, Kopargaon, 





           Tq-Kopargaon, Dist-Ahmednagar. 

     12    Mina Rajendra Bhalerao
           Age-Major, Occ-Household
           Kopargaon, Tq-Kopargaon, 





           Dist-Ahmednagar. 

                                    .......
     Mr.N.R.Bhavar, Advocate for the applicant
     Mr.S.G.Nandedkar, APP for respondent State 
     Mr.C.A.Jadhav h/f V.D.Hon, Advocate for respondents No.3 and 7
     Mr.V.D.Sapkal, Advocate for respondent No.12
     Mr.P.R.Adkine, advocate for respondent No.11




                                               ::: Downloaded on - 09/06/2013 17:45:42 :::
                                           {3}         Cri. Application No.3362/2009

     Mrs.Rashmi Kulkarni h/f Mr.Sanket Kulkarni, for R-9
                                  .......




                                                                             
                                                [CORAM : A.V.POTDAR, J.]




                                                     
                                                   
                                         RESERVED ON    
                                                          :   09.09.2011
                                                                        
                                        PRONOUNCED ON :   21.09.2011   




                                                    
     JUDGMENT:

1. By this application, the applicant has prayed to quash

the orders dated 16.07.2008 and 23.10.2008 passed by JMFC,

Kopargaon granting regular bail in favour of respondents No.3 to

12.

2. Rule. Rule made returnable forthwith. By consent of

the learned counsel for the parties, heard finally at the stage of

admission.

3. Admittedly, respondent No.3 was the Chairman and

respondents No.4 to 10 and 12 were the Members of the Managing

Committee of applicant Bank whereas respondent No.11 was the

Manager of the said Bank. As certain irregularities and illegalities

were noticed in the conduct of the banking business, the Reserve

::: Downloaded on – 09/06/2013 17:45:42 :::
{4} Cri. Application No.3362/2009

Bank of India had cancelled the license of the applicant bank.

Thereafter, District Deputy Registrar, Cooperative Societies, had

appointed Liquidator on the applicant bank to look after the affairs

of the said bank. One Mr.N.K.Ingole (Government Auditor) had

carried out the audit of the said bank for the period 1996 to 2002.

During the said audit, certain illegalities, allegedly committed by

the respondent-accused, were noticed. It was alleged that

misappropriation to the tune of Rs.33 crores was done by the

respondent-accused. Accordingly, complaint came to be lodged in

Kopargaon police station on 05.11.2007, pursuant to which an

offence at Crime No.251/2007 was registered against total 26

persons including the present respondent-accused for an offence

punishable u/s 405, 406, 409, 418 r/w 120 B of the Indian Penal

Code.

4. It appears that following to the registration of the

offence and after all the attempts of the accused to get

anticipatory bail were futile, they were ultimately arrested and

were initially remanded to police custody and subsequently to

Magisterial custody. Thereafter the respondent-accused moved

::: Downloaded on – 09/06/2013 17:45:42 :::
{5} Cri. Application No.3362/2009

regular bail application before JMFC, Kopargaon, who allowed the

bail applications of respondents No.3 to 11 on 16.07.2008 and

application of respondent No.12 came to be allowed and he came to

be released on regular bail on 23.10.2008.

5. By the present application, the applicant has

questioned the legality and correctness of the said orders granting

bail in favour of the respondents-accused mainly on two grounds.

Firstly, that the learned JMFC, Kopargaon has no jurisdiction to

entertain the bail applications and secondly the learned JMFC has

erroneously observed in the impugned orders that the papers of

investigation do not disclose prima facie commission of offence

punishable u/s 409 of the Indian Penal Code. In substance, the

impugned orders are assailed on the ground that the same are

being passed without jurisdiction and the observations of the trial

court, in the order granting bail, are unwarranted.

6. Before I embark upon the submissions advanced by

the learned counsel for the respective parties, I think it appropriate

to advert to certain undisputed facts which can be enumerated

::: Downloaded on – 09/06/2013 17:45:43 :::
{6} Cri. Application No.3362/2009

thus –

a) During the pendency of the present criminal

application, the investigation has been completed and charge sheet

has been filed against the respondent-accused and others before

JMFC, Kopargoan.

b)

While the impugned orders were passed at that time

also the investigation was practically over.

c) Admittedly, the entire prosecution case rests on

documentary evidence and there is very limited scope for oral

evidence.

d) All the offences, complained against the respondent-

accused, are triable by the Judicial Magistrate First Class and not

by the Court of Sessions.

e) It is not the case of the applicant nor it is alleged that

the respondents-accused have misused the liberty granted to

::: Downloaded on – 09/06/2013 17:45:43 :::
{7} Cri. Application No.3362/2009

them.

f) The investigating agency has seized all the documents

relating to the present offence during the course of investigation.

7. Learned counsel for the applicant placed reliance on

the judgments “State of Maharashtra V/s Kaushar Yasin

Qureshi” 1996 (2) Mh.L.J.485; “Sureshkumar Singh V/s State

of U.P.” 1996 Cri.L.J.1527; “Hanuman Vishwanath Nehare V/s

State of Maharashtra” 2001 (3) Mh.L.J. 465; “Prahlad Singh

Bhati V/s N.C.T. Delhi”, 2001 (5) Bom.C.R. (SC) 727; “Md.Arif

V/s State of Maharashtra” 2000 Bom.C.R. (Cri) 95; “State of

Maharashtra V/s Kiran Sonawane” 1996 (3) Bom.C.R. 743 and

Chand Mohammad V/s Mohammad Farooq” 1989 (1) Bom.C.R.

201. In my view, the above cited judgments need not be discussed

for the simple reason that in all the above referred judgments, the

accused were released on bail in the cases which are exclusively

triable by the Court of Sessions. In law, the Magistrate is not

empowered to entertain bail applications in such cases, unless the

::: Downloaded on – 09/06/2013 17:45:43 :::
{8} Cri. Application No.3362/2009

case of the accused is covered under the proviso to section 437 (1)

(I) (II) of the Criminal Procedure Code.

8. Further reliance is placed by learned counsel for the

applicant on the judgment of this Court in the matter of “State of

Maharashtra V/s Ketan Sheth” 2003 (1) Mh.L.J. 885. In the

said judgment, the question before the learned Single Judge was

that can the Magistrate exercise the powers u/s 167 of the

Criminal Procedure Code when the charge sheet is not filed within

the stipulated period, as contemplated in law and for that purpose,

what is stipulated period to file charge sheet for the offence

punishable u/s 409 of the Indian Penal Code. Hence, it would not

be applicable to the present case. Reliance is also placed by the

learned counsel for the applicant on the observations of this Court

in “State of Maharashtra V/s Rajkumar Kunda Swami” 2002

(Supp-2) Bom.C.R.79. Learned Single Judge of this Court, in the

said judgment, has observed that the bail was granted by the

Magistrate in the offence punishable u/s 409, 420, 463, 464, 471

and 477 of the Indian Penal Code at the initial stage by rejecting

::: Downloaded on – 09/06/2013 17:45:43 :::
{9} Cri. Application No.3362/2009

the prayer of the investigating agency to grant police custody

remand in the crime registered of non bailable offence. However, in

the instant case, the order of bail is passed when the investigation

was practically over and the respondents-accused were transferred

and remanded to Magisterial custody from police custody, which is

the distinguishing factor form the judgment cited by the learned

counsel for the applicant and the case in hand.

9. Ultimately, by placing reliance on the judgment of the

Apex Court in “Himanshu Chandravadan Desai V/s State of

Gujrat” AIR 2006 SC 179 learned counsel for the applicant urged

that as the bail is granted by the learned Magistrate without

jurisdiction, the same be cancelled and the application be allowed.

10. While opposing these submissions, learned counsel for

respondent No.9 drew my attention towards the latest view taken

by this Court in “Ambarish Rangshahi Patnigere V/s State of

Maharashtra” 2011 Cri.L.J. 515 and “Ishan Vasant Deshmukh

@ Pasad Vasant Kulkarni V/s State of Maharashtra” 2011 (2)

::: Downloaded on – 09/06/2013 17:45:43 :::
{10} Cri. Application No.3362/2009

Mh.L.J.361 and urged that recently, this Court has taken a view

that if the offence complained is triable by the Court of JMFC, then

the JMFC can entertain the application for bail u/s 437 of the

Criminal Procedure Code.

11. Learned counsel appearing for respondent No.12 urged

that respondent No.12 being a lady, her case is squarely covered

within the proviso to section 437 (1) (I) (II) of the Criminal

Procedure Code and hence requested not to interfere in the

impugned orders. .

12. Learned counsel for remaining respondents adopted

the submissions of these counsels. Learned counsel for the

respondents further urged that the present application be

considered in the light of the undisputed facts, which I have

referred supra.

13. At this stage, it may be useful to quote the

observations of this Court in “Ambarish Rangshhi Patnigere V/s

::: Downloaded on – 09/06/2013 17:45:43 :::
{11} Cri. Application No.3362/2009

State of Maharashtra” referred supra, which reads thus –

“17. It may be noted here that the learned Counsel for

intervener contended that the Magistrate did not have

jurisdiction to grant bail because the offences under

Sections 467 and 409 IPC, carry punishment which

may be life imprisonment. According to the learned

Counsel, if the offence is punishable with sentence of

death or life imprisonment, the Magistrate cannot grant

bail under Section 437(1) Cr. P.C. unless there are

special grounds mentioned therein. He relied upon

certain authorities in this respect including Prahlad Sigh

Bhati vs. NCT, Delhi & Anr. JT 2001 (4) SCC 116. In

that case, offence was under Section 302 which is

punishable with death sentence or life imprisonment

and is exclusively triable by Court of Sessions. The

offence under Section 409 is punishable with

imprisonment for life or imprisonment for 10 years and

fine. Similarly, the office under Section 467 is also

punishable with imprisonment for life or imprisonment

for 10 years and fine. Even though the maximum

sentence which may be awarded is life imprisonment,

as per Part I of Schedule annexed to Cr.P.C., both these

offences are triable by a Magistrate of First Class. It

appears that there are several offences including under

sec.326 in the Indian Penal Code wherein sentence,

which may be awarded, is imprisonment for life or

::: Downloaded on – 09/06/2013 17:45:43 :::
{12} Cri. Application No.3362/2009

imprisonment for lesser terms and such offences are

triable by Magistrate of the First Class. If the Magistrate

is empowered to try the case and pass judgment and

order of conviction or acquittal, it is difficult to

understand why he cannot pass order granting bail,

which is interlocutory in nature, in such cases. In fact,

the restriction under Sec. 437(1) Cr. P.C. is in respect of

those offences which are punishable with alternative

sentence of death or life imprisonment. If the offence is

punishable with life imprisonment or any other lesser

sentence and is triable by Magistrate, it cannot be said

that Magistrate does not have jurisdiction to consider

the bail application. In taking this view, I am supported

by the old Judgment of Nagpur Judicial Commissioner’s

Court in Tularam & Ors. vs. Emperor 27 Cri.L.J. 1926

page 1063 and also by the Judgment of the Kerala High

Court in Satyan Vs. State 1981 Cr.L.J. 1313. In Satyan,

the Kerala High Court considered several earlier

Judgments and observed thus in paras 7 and 8 :-

“7. According to the learned Magistrate Section 437(1)

does not empower him to release a person on bail if
there are reasonable grounds for believing that he has
committed an offence punishable with death or an
offence punishable with imprisonment for life. In other
words the learned Magistrate has interpreted the
expression “offence punishable with death or
imprisonment for life” in Section 437(1) to include all
offences where the punishment extends to

::: Downloaded on – 09/06/2013 17:45:43 :::
{13} Cri. Application No.3362/2009

imprisonment for life. This reasoning, no doubt, is seen
adopted in an old Rangoon Case H.M. Boudville v.

Emperor, AIR 1925 Rang 129 : (1925) 26 Cri LJ 427
while interpreting the phrase “an offence punishable

with death or transportation for life” in Section 497 Cr.
P.C. 1898. But that case was dissented from in
Mahammed Eusoof v. Emperor, AIR 1926 Rang 51:
(1926) 27 Cri LJ 401). The Rangoon High Court held that

the prohibition against granting bail is confined to cases
where the sentence is either death or alternative
transportation for life. In other words, what the Court
held was that the phrase “death or transportation for

life” in Section 497 of the old Code did not extend to
offences punishable with transportation for life only, it

will be interesting to note the following passage from the
above judgment :

“It is difficult to see what principle, other than
pure empiricism should distinguish offences punishable
with transportation for life from offences punishable
with long terms of imprisonment; why, for instance, the

detenu accused of lurking house trespass with a view to
commit theft, for which the punishment is fourteen

years imprisonment, should be specially favoured as
against the individual who has dishonestly received
stolen property, knowing that it was obtained by
dacoity, for which the punishment happens to be

transportation for life? It cannot seriously be argued
that the comparatively slight difference in decree of
possible punishment will render it morally less likely
that the person arrested will put in an appearance in

the one case rather than the other. On the other hand
the degree of difference is so great as between
transportation for life and death as to be immeasurable.
A prudent Legislature will, therefore, withdraw from the
discretion of the Magistracy cases in which, if guilt is
probable, even a man of the greatest fortitude may be
wiling to pay a material price, however, exorbitant, for
life.”

::: Downloaded on – 09/06/2013 17:45:43 :::

{14} Cri. Application No.3362/2009

The above decision has been followed by the Nagpur

High Court in the case reported in Tularam v. Emperor,

AIR 1927 Nag 53 : (1926) 27 Cr. LJ 1063).

“8. The reasoning applies with equal force in
interpreting the phrase “offence punishable with death

or imprisonment for life” So long as an offence under
section 326 is triable by a Magistrate of the First Class
there is no reason why it should be viewed differently in
the matter of granting bail from an offence under

Section 420 I.P.C. for which the punishment extends
imprisonment for 7 years or any other non-bailable

offence for which the punishment is a term of
imprisonment.”

It would be illogical and incomprehensible to say
that the magistrate who can hold the trial and pass
judgment of acquittal or conviction for the offences
punishable with sentence of life imprisonment or lesser

term of imprisonment, for example in offences under S.
326, 409, 467, etc., cannot consider the application for

bail in such offences. In fact, it appears that the
restriction under Sec. 437(1) (a) is applicable only to
those cases which are punishable with death sentence
or life imprisonment as alternative sentence. It may be

noted that in Prahlad Sigh Bhati (supra), in para 6, the
Supreme Court held that even though there is no legal
bar for a Magistrate to consider an application for grant
of bail to a person who is arrested for an offence

exclusively triable by a Court of session, yet it would be
proper and appropriate that in such a case the
Magistrate directs the accused person to approach the
Court of Session for the purposes of getting the relief of
bail. This may be applicable to many cases, wherein the
sentence, which may be awarded, is not even life
imprisonment, but the offence is exclusively triable by
court of Sessions for example offences punishable

::: Downloaded on – 09/06/2013 17:45:43 :::
{15} Cri. Application No.3362/2009

under Sections 306, 308, 314,315, 316,399, 400 and

450. Taking into consideration the legal position, I do

not find any substance in the contention of Mr.Bhatt,
learned Counsel for the intervener that merely because

the offence is under Sec. 409 and 467 IPC, Magistrate
did not have jurisdiction to hear and grant the bail.”

14. It may also be useful to refer the observations of this

Court in Ishan Vasant Deshmukh V/s State of Maharashtra”

referred supra, which read thus-

“The observations of the Supreme Court that generally
speaking if the punishment prescribed is that of
imprisonment for life or death penalty, and the

offence is exclusively triable by the Court of Sessions,
the Magistrate has no jurisdiction to grant bail,
unless the matter is covered by the provisos
attached to section 437 of the Code. Thus, merely

because an offence is punishable when imprisonment
for life, it does not follow a Magistrate would have no

jurisdiction to grant bail, unless offence is also
exclusively triable by the Court of Sessions.
This, implies that the Magistrate would be
entitled to grant bail in cases triable by him even though

punishment prescribed may extend to imprisonment for
life. This Judgment in Prahlad Singh Bhati’s case had
not been cited before Judge, who decided State
of Maharashtra Versus Rajkumar Kunda Swami.
Had this Judgment been noticed by the Hon’ble Judge

deciding that case, the observation that the Magistrate
may not decide an application for bail if the
offence is punishable with imprisonment for life would
possibly would not have been made. In view of the
observations of the Supreme Court in Prahlad Singh
Bhati’s case, it is clear that the view taken by
J.H.Bhatia, J. in Ambarish Rangshahi Patnigere Vs.

::: Downloaded on – 09/06/2013 17:45:43 :::
{16} Cri. Application No.3362/2009

State of Maharashtra, reported at 2010 ALL MR
(Cri) 2775 is in tune with the Judgment of the Supreme

Court and therefore, the Magistrate would have
jurisdiction to grant bail.”

15. As pointed out above, it is clear that the offence

complained against the respondents-accused is triable by the

Magistrate and not by the Court of Sessions. Therefore, in view of

the observations of this Court in “Ambarish Rangshhi Patnigere

V/s State of Maharashtra” (Supra) it is to be held that the

Magistrate had the jurisdiction to entertain the bail applications.

16. Again, as pointed out above, the applicant has not

come with a case nor it is alleged that the respondents-accused

have misused the liberty granted in their favour either by

tampering evidence or that they are likely to abscond. Therefore,

the Observations in “Himanshu Chandravadan Desai V/s State

of Gujrat” AIR 2006 SC 179, as relied by the learned counsel for

the applicant, would not be applicable to the present application.

17. The present application is filed for cancellation of bail

::: Downloaded on – 09/06/2013 17:45:43 :::
{17} Cri. Application No.3362/2009

granted in favour of the respondents-accused, therefore, it would

be appropriate to advert to the observations of the Apex Court in

“Hazari Lal Das V/s State of West Bengal” 2010 AIR (SC) 91.

The Apex Court, in the said judgment, has observed thus-

“9. In Dolat Ram And Ors V.s State of Haryana, (1995) 1
SCC 349 this Court held:

4. Rejection of bail in a non bailable case at the initial

stage and the cancellation of bail so granted, have to be
considered and dealt with on different basis. Very
cogent and overwhelming circumstances are necessary

for an order directing the cancellation of the bail,
already granted. Generally speaking, the grounds for
cancellation of bail, broadly (illustrative and not
exhaustive) are: interference or attempt to interfere with

the due course of administration of justice or evasion or
attempt to evade the course of justice or abuse of the

concession granted to the accused in any manner. The
satisfaction of the court, on the basis of material placed
on the record of the possibility of the accused

absconding is yet another reason justifying the
cancellation of bail. However, bail once granted should
not be cancelled in a mechanical manner without
considering whether any supervening circumstances
have rendered it no longer conducive to a fair trial to

allow the accused to retain his freedom by enjoying the
concession of bail during the trial. These principles, it
appears, were lost sight of by the High Court when it
decided to cancel the bail, already granted. The High
Court it appears to us overlooked the distinction of the
factors relevant for rejecting bail in a non-bailable case
in the first instance and the cancellation of bail already
granted.”

::: Downloaded on – 09/06/2013 17:45:43 :::

{18} Cri. Application No.3362/2009

18. It is not disputed that respondents-accused are

released on regular bail way back in 2008 and thereafter the

charge sheet came to be filed. Moreover, no complaint of misuse of

liberty by the respondents-accused is lodged. Nor there are any

allegation that they may likely to abscond and would not face the

trial. In the premise and considering the overall effect of the above

discussed facts, I am of the considered view that no interference is

required in the orders impugned in the present application.

19. In the result, the application fails and dismissed

accordingly. Rule stands discharged.

[A.V.POTDAR, J.]
drp/B11/criapln3362-09

::: Downloaded on – 09/06/2013 17:45:43 :::

Niraj Vikas Pabale vs The Tahsildar on 21 September, 2011

Bombay High Court
Niraj Vikas Pabale vs The Tahsildar on 21 September, 2011
Bench: B. P. Dharmadhikari, P. D. Kode
                                       1



                IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                  
                          NAGPUR BENCH, NAGPUR.




                                                         
                           WRIT PETITION  No. 5680/2007.




                                                        
    1. Niraj Vikas Pabale, Adult.
    2. Jayant Ratnakar Gawande, Adult.
    3. Ashis Ashokrao Chavan, Adult.




                                           
    4. Pravin Manoharrao Page, Adult.
    5. Pravin P. Kurhadkar, Adult.
                         
    6. Harshada R. Parate, Adult.
    7. Sau. Hemlata B. Sor, Adult.
    8. A.V. Burande,  Adult.
                        
    9. N.S. Taltumbde, Adult.
    10. Sanjay Laxmanrao Janotkar, Adult.
    11. S.H. More, Adult.
    12. Ravindrasingh M. Dhandoria,  Adult.
      

    13. Rashmi Das, Adult.
    14. Sau. Pushapa G. Gokhe, Adult.
   



    15. D.P. Khurbude, Adult.

    All citizens of Shri Swami Samarth Nagari,
    through it's Shri Swami Samarth Anyaya





    Niwaran Samiti, Nalwadi, Tq. and 
    District Wardha.                                                       ....PETITIONERS.


                                           VERSUS





    1. The Tahsildar, Wardha,
        Tq. and District Wardha.

    2. The Collector, Mr. E.Z. Khobragade,
        Wardha, for State of Maharashtra.




                                                          ::: Downloaded on - 09/06/2013 17:45:32 :::
                                   2


    3. The Sub-Divisional Officer,
        Tahsil Office, Wardha.




                                                                         
    4. Gram Panchayat, Nalwadi,




                                                 
        through it's Secretary, Tah.
        And District Wardha. 

    5. Mahila Vikas Sanstha, Wardha




                                                
        Reg. No. 834/90 through its 
        President, Rajesh Ghanshyamji
        Bhoyar, R/o. Nalwadi, Tq. and
        District Wardha.




                                      
    6. Zilla Parishad, Wardha, through its
        Chief Executive Officer, Wardha.
                        ig                                ....RESPONDENTS
                                                                         . 


                                --------------------------
                      
                    Shri  Anil Kilor, Advocate  for Petitioners.
        Shri  A.S. Sonare, learned A.G.P. for Respondent Nos.  1 to 3.     
     Shri M.R. Joharapurkar, Advocate  for Respondent 4 - Gram Panchayat.
           Shri  Anjan De, Advocate  for Respondent no. 5 -  Society.
      

         Shri J.S. Mokadam, Advocate  for Respondent 6 -Zilla Parishad.
                                 -----------------------
   



                           CORAM :  B.P. DHARMADHIKARI
                                       &  P.D. KODE, JJ. 
    Date of reserving the Judgment. -            02.08.2011
    Date of Pronouncement.          -            21.09.2011.





            
    JUDGEMENT.    (Per B.P. Dharmadhikari, J). 


1. This writ petition is entertained as Public Interest Litigation

(PIL) as per the orders of Hon’ble the Chief Justice dated 30/10/2007.

::: Downloaded on – 09/06/2013 17:45:32 :::
3

Briefly stated, the grievance is about an activity in the shape of an

educational institute and a students hostel in residential area. It is

alleged that the construction is raised without legal sanction from the

competent authority. Respondent No. 5 before this Court is that institute

while Respondent No. 4 is the Gram Panchayat which claims to have

sanctioned the same under Section 52 of the Bombay Village Panchayat

Act,1958, (hereinafter referred to as “the 1958 Act” for short).

Respondent no. 6 is the Zilla Parishad which can control/suspend

actions/resolutions passed by Gram Panchayat in this respect. At one

time it was the stand of authorities that Standardized building bye laws

for B and C class municipal councils prescribed under Maharashtra

Municipal Councils, Nagar Panchayats And Industrial Townships Act (40

of 1965) needed to be followed (hereinafter referred to as “the 1965

Act” for short). The cognizance of grievance as PIL is also questioned on

various grounds and one of the contentions is subsequent amendment

to letter treated as PIL by the petitioners, can not be looked into as its

part and parcel.

2. With this background, we proceed to narrate the facts.

(A). 15 petitioners wrote a letter dated 8/10/2007 to the Hon’ble

::: Downloaded on – 09/06/2013 17:45:32 :::
4

The Chief Justice of this Court by designation as also by name ( then the

Hon’ble Chief Justice Shri Swatantra Kumar) as also to the then

Administrative Judge at Bombay Shri J.N. Patel (using name also) and

to the Administrative Judge at Nagpur. It was received by the office of

Hon’ble The Chief Justice on 15/10/2007. Registrar(Judicial-I) at

Mumbai on 29-10-2007 placed it with a note before the Hon’ble Chief

Justice and sought orders as to – (A) whether said communication be

treated as PIL and sent to Nagpur Bench or then (B) whether it be filed

after informing the writers that they may take recourse to remedy

available in law, if so advised. Hon’ble The Chief Justice approved

part “A” of the note. We are making reference to this letter in more

details in paragraph 8 below.

(B). Deputy Registrar of High Court at Nagpur had in the

meanwhile on 24/10/2007 placed the very same letter received by

Senior or Administrative Judge at Nagpur with similar note and sought

directions whether (A) it be treated as PIL, (B) whether report of

Collector. Wardha be called within one month or then (C) whether to

file it after informing the applicants to take recourse to appropriate legal

remedy, if they so desired. The Hon’ble Administrative or Senior Judge

::: Downloaded on – 09/06/2013 17:45:32 :::
5

at Nagpur approved option “B”. This therefore shows that appropriate

cognizance was taken at Nagpur as also at Mumbai independently by the

competent Hon’ble Judges.

(C). Matter was listed on 17/12/2007 before the Division Bench

presided over by same Senior Judge only and was adjourned to

19/12/2007. The report was already called from the office of Collector

Wardha by Joint Registrar (Criminal-1) of this Court vide

communication dated 29/11/2007 as per the directions of Hon’ble

Senior/Administrative Judge at Nagpur. Said report dated 6/14-12-2007

was received and on 17/12/2007 itself orders of Hon’ble Senior Judge

before whom the matter was listed earlier on same day on judicial side

were procured to tag that report with writ petition. Accordingly, report

was made available to the same Division Bench on next date i.e., on

19/12/2007. On that day after hearing, this Court issued notice before

admission returnable on 9/1/2008. Matter was also directed to be

placed before High Court Legal Services Sub-committee. On 10/1/2008

the matter appeared on daily board and Petitioners then were given

assistance of an advocate as amicus curiae. On 29/1/2008, Respondent

no. 5 filed its submissions mostly raising challenge to the cognizance

::: Downloaded on – 09/06/2013 17:45:32 :::
6

and maintainability. Respondent no. 4 Gram Panchayat also filed its

reply on that day. Reply affidavit dated 1/2/2008 of Respondent no.1

came to be filed on 7/2/2008 and by respondent no.3 on 8/2/2008. On

15/2/2008, petitioners engaged their present Advocate. On 25/4/2008,

petitioners sought adjournment to file amendment application. Civil

Application No. 3739/2008 filed by them for amendment was granted

on 9/6/2008 after noting that petition was still to be admitted and

respondents would not suffer any prejudice. On 15/9/2008, notice came

to be issued to added respondent no.6 Zilla Parishad. On that day, C.A.

5380/2008 seeking consequential amendment to its written submissions

was also allowed. Office endorsement dated 1/10/2002 reveals that

respondent no.6 was served and its advocate filed appearance on

2/2/2009. It filed it’s written submission on 20/4/2009. On

10/8/2009 petitioners filed rejoinder as allowed by this Court. Zilla

Parishad filed additional affidavit on 12/11/2009. On 3/2/2010, time

was given to petitioners to produce development plan of the concerned

area On 9/3/2010, petitioners filed additional affidavit and another

additional affidavit on 1/9/2010. Respondent no.5 filed its reply to that

additional affidavit on 5/10/2010.

::: Downloaded on – 09/06/2013 17:45:32 :::
7

(D). On 1/12/2010, this Court directed respondent no.5 to

disclose document by which it acquired title to plot on which subject

building is standing, when and under whose orders plots were

consolidated and under whose signature proposed plan was submitted

for approval to Gram Panchayat. On 13/12/2010, respondent no.5 filed

a pursis vide stamp 13070/2010. Typed word “submission” in its title

clause was scored of and replaced by handwritten word “pursis”. On

21/12/2010, respondent no.5 filed Civil Application (W) No.

3251/2010 seeking leave to amend submissions which came to be

allowed on 12/1/2011. What has been amended as per this order is this

pursis which was/is without any affidavit. Consequentially, word

“pursis” on it appears to be scored and word “submission” is again

added by hand on this stamp 13070/2010. This position can be seen

from office note dated 25/1/2011 which also initially used word

“pursis” and later corrects it to read “submission”. By very same order

dated 12/1/2011, this Court directed respondent no.4 Gram Panchayat

to file separate affidavit in relation to each structure erected within its

jurisdiction giving details of permission, provision of law under which

permission was granted and whether such permissions are in

conformity with law. On 2/2/2011, respondent no.4 filed the affidavit of

::: Downloaded on – 09/06/2013 17:45:32 :::
8

its secretary. On 4/3/2011, it filed additional affidavit. Petitioners

thereafter did not file any additional rejoinder and on 23/4/2011,

matter was adjourned to 14/6/2011 and then to 27/6/2011.

respondent no.5 then filed additional submissions (already sworn on

18/2/2011) on 14/6/2011. Petitioners then filed additional affidavit

on 22/6/2011. On 27th June 2011, this Court refused to first decide

preliminary objection of respondent no. 5 about tenability as PIL and

respondent no.5 then sought time to file reply on merits. That reply in

the shape of additional affidavit came to be filed on 8/7/2011.

respondent no.5’s reply filed on 21/7/2010 to additional affidavit of

Petitioners dated 9/3/2010 came on record as wrong case number in its

presentation form was corrected on 19/7/2011.

(E). The letter sent by petitioners and affidavits,

replies/submissions filed by respective parties need reference in detail

and to avoid prolixity, we find it appropriate to mention it little later.

(F). In this background, We have heard respective Counsel for

parties from 18/7/2011.

::: Downloaded on – 09/06/2013 17:45:32 :::
9

3. Arguments of Shri Kilor, learned Counsel for Petitioners.

(A). Shri Kilor, learned counsel appearing on behalf of petitioners

pointed out the history in brief already noted above to assert that as

Hon’ble The Chief Justice has already directed the registration as PIL

and facts disclose public interest involved as it is case of illegal

construction being permitted on large scale by authorities responsible

for curbing it without any objection and in defiance of building bye-

laws, the objection to its tenability is misconceived. He further states

that by amendment details of very same grievance are furnished and

hence, contention that such amended part can not constitute PIL is

without any merit. He reads out the letter accepted as PIL to point out

nuisance being caused to all residents due to violations of building bye-

laws. He further states that initially there was only one building but

during pendency of writ petition, 5 more buildings have come up. Plans

of all these 6 buildings i.e., 5 Hostels and 1 College are all claimed to

have been sanctioned by Gram Panchayat under Section 52 of the 1958

Act. Under Section 52(2), remedy of appeal is available to owner of

construction, if he is aggrieved by any condition subject to which such

sanction is granted or then by rejection of permission. He also invites

::: Downloaded on – 09/06/2013 17:45:32 :::
10

attention to confusion later on attempted to be introduced about the

building bye-laws or regulations relevant in this respect. He has

produced before the Court charts showing area of plots consolidated

together by respondent no.5 to support each building and how, even if

either of the Rules are applied, the construction is much in excess and

illegal. He states that if the Maharashtra Village Panchayat Extension of

Village Sites and Regulation of Buildings Rules,1967 i.e., Extension

Rules are held to apply, the plots can not be clubbed and permissible

Floor Space Index (FSI) or Floor Area Ratio (FAR) is only 40% with

requirement to leave marginal spaces as stipulated therein open. If

Standardized Building Bye-laws for B and C class Municipal Councils

framed under 1965 Act i.e., Municipal Rules are to be looked into, said

FSI or FAR is 60% with similar riders. Hence, in either case the

structures as raised are in excess and illegal. He also points out that as

per Extension Rules building can be only single storied while under

Municipal Rules, it may have only 3 stories i.e.,ground plus two floors.

He argues that no order passed by any authority permitting

consolidation or clubbing of different plots are/is pointed out by any of

the Respondents and directions issued by this Court on 12/1/2011 have

not been complied with. Gram Panchayat had granted permission only

::: Downloaded on – 09/06/2013 17:45:32 :::
11

for a residential house but respondent no.5 raised a huge multistory

College. When building permission was applied, respondent no.5 was

not the owner and after cognizance by this Court, a gift deed has been

executed by owners in favour of respondent no.5 in 2010.

(B). Attention is invited to written submission filed by respondent

no.5 through its President where it is stated that provisions of Municipal

Rules or Bye-laws for “C” class municipal council will be applicable in

Gram Panchayat area and both “R-1” and “R-2” uses will be legal in

residential zone. Reply of respondent no.1 Tahsildar holds Gram

Panchayat guilty and permission to construct hostel as illegal. Reply of

respondent no.3 Sub-Divisional Officer (SDO) also records similar

findings. Both these Government Authorities have requested Chief

Executive Officer i.e., respondent no.6 to initiate appropriate action

against Gram Panchayat in the matter. Reports submitted by SDO on

14/12/2007 to respondent no.6, by Block Development Officer,

Panchayat Samiti, Wardha on 20/11/2007, spot inspection report of

Naib-Tahsildar, Wardha dated 17/11/2007 and report of the Chief

Executive Officer of respondent no.6 Zilla Parishad dated 5/12/2007 are

all on same lines. Learned Counsel asserts that subsequent change in

::: Downloaded on – 09/06/2013 17:45:32 :::
12

stand of Zilla Parishad is malafide. Apparent difference as per

sanctioned map and photograph of actual structure is highlighted to

contend that it is undue influence and abuse of position which has

facilitated this change. Modification as sought on 21/7/2010 by

respondent no.5 is also pointed out. Reply affidavit filed by respondent

no.6 on 20/4/2009 is pointed out to show stand therein that sanction

granted is as per Section 52 of the 1958 Act read with Extension Rules.

Later affidavit filed on 12/11/2009 by it is also pointed out to show how

it attempts to explain the earlier report of its CEO and erroneously

interprets communication dated 14/10/1994 in order to favour

respondent no.5. He states that directions issued on 1/12/2010 are still

not obeyed by either respondent no.5 or then respondent no.4 and 6.

Affidavits filed on 18/7/2008 and on 2/2/2011 by respondent no.4

Gram Panchayat are also pointed out to show how it now urges that

Extension Rules are not applicable.

(C). According to him inspite of cognizance by this Court, 4 new

buildings have come up and all reports initially prepared without any

influence support the cause and case of Petitioners. Hence, these

unauthorized structures must be demolished.

::: Downloaded on – 09/06/2013 17:45:32 :::
13

4. Arguments of respondents, other than respondent no.5.

(A). Shri Mokadam, learned Counsel appearing on behalf of

respondent no.6 Zilla Parishad points out that as sanction given by

Gram Panchayat is as per Section 52 of the 1958 Act and Extension

Rules, no action under Section 142 thereof was warranted. He also

points out the reasons for contending that Municipal Rules do not

apply.

(B). Shri Johrapurkar, learned counsel appearing on behalf of

respondent no.4 Gram Panchayat relies upon reply filed by it on

29/1/2008 to urge that Municipal Rules permit hostel and educational

institute in “C” class. S.142 of 1958 Act ought to have been resorted to

by Petitioners and cancellation or suspension of the Gram Panchayat

resolutions granting sanctions ought to have been sought. Thus an

alternate and equally efficacious remedy was/is available to them. From

paragraph no. 2 onwards of later affidavit filed on 2/2/2011, sanctions

or permissions given by respondent no.4 from time to time, are shown.

Extension Rules of 1967 are argued to be not relevant as there is no new

::: Downloaded on – 09/06/2013 17:45:33 :::
14

village site here and also no appointment of any extension officer. It is

further urged that all sanctions are in the name of recorded owners only.

Rule 40 of the Meeting Rules governing the meetings of Gram Panchayat

requires each resolution to be sent to Zilla Parishad and Section 137

of the 1958 Act enables Zilla Parishad to call for records and Zilla

Parishad never found it necessary to exercise that power. Bar of action

provided under Section 180(2) of 1958 Act is also pressed into service.

Learned Counsel in this background, points out a statement on affidavit

that it did not receive any notice of inquiry allegedly conducted by

authorities. He further points out that 3 modifications in building plan

changing it from House to Hostel were allowed as per law.

(C). Learned A.G.P. relies upon the communication dated

14/10/1994 and also material brought on record through reply

affidavits to state that the constructions are found illegal by the State

Government and also by the Chief Executive Officer of Zilla Parishad.

5. Arguments of respondent no.5 – Society.

Shri De, the learned Counsel for respondent no.5 has

advanced arguments firstly about the validity of the cognizance taken by

::: Downloaded on – 09/06/2013 17:45:33 :::
15

this Court as PIL, its maintainability and lastly, on merits; clarifying that

all contentions were without prejudice to each other and in the

alternative.

(A). He contends that letter originally written to Hon’ble The

Chief Justice is making grievance about only one construction i.e.,

Hostel on plot no. 12 to 17 in residential area. The structure is stated to

be G.F. + 3 stories and nuisance due to its use to only 15 writers of that

letter. It is not in representative capacity. This letter was placed before

the Hon’ble Chief Justice by Registrar with two options. The alleged

cause has arisen in territorial jurisdiction of Nagpur Bench and hence,

cognizance needed to be taken by the Senior Judge ( also referred as

Administrative Judge) at Nagpur. Rule 2A of the Bombay High Court

Appellate Side Rules, 1960 ( hereinafter referred to as “the Appellate

Side Rules” for short), then regulating the PIL are relied upon. It is

urged that said Judge is aware normally of prevailing local situation and

authority given to such Hon’ble Judge therefore, is, with some purpose.

2003(4) Mah.L.J. 635 (pl.B) (Surendra Ramchandra Jichkar vs. State of

Maharashtra), is relied upon to buttress this contention. Therefore order

of Hon’ble Chief Justice dated 30/10/2007 accepting it to be PIL is

::: Downloaded on – 09/06/2013 17:45:33 :::
16

urged to be void. (1992)1 SCC 534-(para 19)- AIR 1992 SC 1555-

(Shrisht Dhawan (Smt) v. Shaw Bros.), is cited for this. (1993) 2 SCC

507 (para 18)- (Chiranjilal Shrilal Goenka v. Jasjit Singh), is pointed

out to show concept of coram non judis and (2008) 7 SCC 738 (para

23)- (M.V. Janardhan Reddy v. Vijaya Bank), to urge it does not create

any right or obligation.

(B).

Shri De, learned counsel states that Petitioners, only 15 in

number, can not maintain such petition which is in self interest only.

There pleadings are vague and there is no full dis-closer. Fate of police

complaint filed by them is not pleaded and its copy also is not annexed.

Personal data of each petitioner, necessary to understand their position

in life and society is not pleaded. With the result their credentials or

bonafides are not available and Hon’ble The Chief Justice has not

looked into it at all. According to him to understand their grievance, a

proper map showing location of their houses, of Hostel/College, distance

separating them was essential to enable a legal decision about treating

their grievance as PIL. All petitioners are claimed to be affluent and

educated citizens well placed in life and hence, PIL is not a remedy for

::: Downloaded on – 09/06/2013 17:45:33 :::
17

them. It is also pointed out that students of respondent no.5 had earlier

lodged police complaint against highhanded acts of these petitioners

and thereafter, they have started making grievance only to counter said

complaint. He contends that there are 2 other Colleges in the vicinity

and they have come up even without non-agricultural permission. Still,

petitioners have not made any grievance. Petitioners are acting at the

instance of these other institutes and not bonafide or in public interest.

(C)

It is urged that the other residents have never made any

complaints and houses or structures of Petitioners are in violation of

Municipal Rules. The petitioners have purchased their respective plots

long after the constructions of respondent no.5 were over and they,also,

have not made any grievance about the other buildings in their letter.

Representation to Collector or then letter by him to CEO, Zilla Parishad

or to SDO show complaint about only Hostel building i.e., one structure

and no grievance about other structures. All these factors show

acquiescence on their part.

(D). Attention is invited to photograph of college building to urge

that its construction was already over with other buildings and no

::: Downloaded on – 09/06/2013 17:45:33 :::
18

complaint about the same was made at any time. This Court has not

taken cognizance of these other buildings in PIL and subsequent

addition of said grievance to PIL is not legally possible. PIL is filed on

15/10/2007 and amendment about other buildings has come on

9/6/2008 which is not earlier cleared by either Hon’ble The Chief

Justice or Senior Judge as PIL. Hence, such amendment can not relate

back to the date of such sanction or clearance. According to him, this is

nothing but back-door entry of other matter into PIL.

(E). The respondent no.5 is providing free education and hostel

facility to students from backward/weaker strata of society and its

work is more important to public than the grievance expressed by

Petitioners. List of such 66 students is pointed out. Attention is also

invited to list of other cities where Hostels are permitted in residential

areas. It is urged that population of village Nalwadi is only 8052. The

injury complained of is therefore urged to be not legal.

(F). In these circumstances, Shri De, learned counsel contends

that as disputed questions of facts arise the petitioners ought to have

taken recourse to alternate remedies under the 1958 Act or then to Civil

::: Downloaded on – 09/06/2013 17:45:33 :::
19

Court and instant PIL at their behest is not sustainable. Had respondent

no.5 received due opportunity before taking cognizance of the matter as

PIL, all these relevant facets could have been scrutinized before treating

it as PIL. Learned Counsel states that respondent no.5 has raised all

structures after due sanctions and clearances. Hearing it would have

resulted in invoking correct jurisdiction by the petitioners saving

harassment of respondent no.5 and others. It is pointed out that

concerned Registrar at Bombay had pointed out two alternatives

available and hence, before Hon’ble The Chief Justice decided to accept

one out of them, opportunity of hearing needed to be extended to

petitioners. The verification of bonafides or credentials of petitioners is

must at the thresh-hold only. (1993) 4 SCC 10-(para 9)-AIR 1993 SC

2155-(Rattan Lal Sharma v. Managing Committee, Dr Hari Ram (Co-

Education) Higher Secondary School), is pressed into service. It is

urged that the Hon’ble Chief Justice has not recorded any reasons for

selecting a particular course or then for treating it as PIL. (2010) 4 SCC

785-(para12) (Assistant Commissioner, Commercial Tax Department,

Works Contract and Leasing v. Shukla and Brothers), and (1998) 5

SCC 513 (para 27) AIR 1998 SC 2050- (State of W.B. v. Shivananda

Pathak), are relied upon here. A substantive writ petition vide W.P.

::: Downloaded on – 09/06/2013 17:45:33 :::
20

5933 of 2010 was filed in this regard by it and was allowed to be

withdrawn on 16/12/2010 with liberty to respondent no.5 to raise all

contentions in defense in this petition. Already, on 13/12/2010

appropriate submissions were filed in writ petition raising the same.

(G). To demonstrate the situation in which and nature of

grievance that can be looked into as PIL, he relies upon (2005)3 SCC 91

(R and M Trust vs. Koramangla Residents Vigilance Group)–AIR

2005 Sc 894 (para 23 to 37), AIR 2006 SC 2643–(Kushum Lata vs.

Union Of India)-(para 13), (2008) 3 SCC 542–AIR 2008 SC 1614–

(Divine Retreat Centre vs. State of Kerla and Others)-(para

57,59,61,63,64).

(H). Respondent no. 5 commenced the construction in 2000 and

the College existed prior to Petitioners erecting their houses. Though

sanction uses the word “house”, map itself employs the words like –

retiring room, class room,library etc. Hence, initial sanction was to

College only. It is urged that restriction on height i.e.,to have G+2

stories came later. Request to add one more floor was duly made on

1/4/2002 and it was granted on 6/4/2002. Petitioners purchased their

::: Downloaded on – 09/06/2013 17:45:33 :::
21

plots long after this and their houses are at sufficiently long distance.

He reiterated that police complaint by one student against one of the

Petitioners has started this dispute. (2010)11 SCC 557–(para 48 to 53)–

Manohar Lal vs. Ugrasen and Ghaziabad Development Authority vs.

Ugrasen), as also 2010 (1) SCALE 492 (para 196 to 198)=(2010) 3 SCC

402- (State of Uttarnchal vs. Balwant Singh Chaufal) are pressed into

service in this connection.

(I).

Our attention is drawn to pursis/submissions dated

13/12/2010 and documents placed with it to urge that all 6 buildings

are having valid sanctions and title vests in respondent no.5. It is further

urged that present respondent no.5 was not given any previous notice by

any authorities before undertaking the inspection and their reports are

not binding on it. He contends that Petitioners are themselves not very

clear about the legal provisions applicable to constructions in dispute.

Petitioners in letter rely upon Municipal Rules while High Court order

dated 12/1/2011 calls for information in the light of Extension Rules.

According to Gram Panchayat, it is Section 52 of the 1958 Act which is

relevant. Relying upon Section 45 of the 1958 Act, he points out entry

44 in Schedule-I and then Rule making power contained in Section 176

::: Downloaded on – 09/06/2013 17:45:33 :::
22

thereof to urge that Extension Rules can not apply and Respondents

have not violated its Rule 7. In the alternative, it is urged that

Petitioners have also violated said Rule 7 and support is being taken

from chart prepared and produced by respondent no.5 for this. He

further relies upon assertion of Zilla Parishad that Municipal Rules are

not applicable and that is correct as per communication dated

14/10/1994. Government has not given any reply about interpretation

of this communication and Petitioners have not filed any rejoinder

disputing this stance of Zilla Parishad. It is stated that Section 176 and

177 envisage rule or bye-law making only after previous publication.

Section 323 of the 1965 Act is read out to urge that alleged

Standardized Building Bye-laws are only guide lines which even

concerned Municipal Council is required to adopt and in absence of

order U/Section 323(3), it has no statutory force. Without prejudice,

bye-laws 2.11,2.21,2.29 are read out to urge that Hostel is covered by

Cl. 2.29. Bye-law 20 and then Appendix-G is used to show that in C

class municipal area, educational institutes are allowed in residential

zone also. Order dated 12/10/2007 passed by SDO permitted non-

agricultural use for educational purpose and it has been given after due

publicity and calling of objections. Permission given by Collector on

::: Downloaded on – 09/06/2013 17:45:33 :::
23

9/8/2005 to sale to respondent no.5 survey no. 63/1 area 1.87 H to one

Siddartha Doifode for educational purpose is also relied upon. It is

urged that all building plans were prepared by competent architect and

sanctioned u/S 52 of 1958 Act by the Gram Panchayat. Reply filed by

respondent no.4 Gram Panchayat is relied upon to substantiate this plea.

View of this Court in 2009(2) Mah.L.J. 714–(Shirdi Nagar Panchayat

vs. Gordia Budget Hotel) (learned Single Judge–para 2,7 and 8) is

banked upon to show validity of such permission u/Section 52.

(J). Section 142 of the 1958 Act and it’s scope as explained by

Full Bench of this Court in 2004(2) Mah.L.J. 874-para 44 – (Sanjay

Govind Sapkal vs. Collector of Dhule) and 2009(5) Mah.L.J. 711-para 9

–(Sandip Diwakar Joshi vs. Corporation of City of Nagpur), construing

it as alternate remedy are heavily relied upon for seeking dismissal of

PIL on that account. It is contended that Petitioners never approached

Zilla Parishad and impleaded it later before this Court after matter was

treated as PIL . Any omission or inaction on part of Zilla Parishad can

not constitute a cause to sustain a PIL.

(K). Order VII Rule 7 of Code of Civil Procedure is also relied

::: Downloaded on – 09/06/2013 17:45:33 :::
24

upon to argue that relief needs to be specific and it can not be vague in

such cases. The letter even after amendment speaks of only Hostel

building on plot nos. 12 to 17 and the details like area of construction or

plot or extent of alleged unauthorized construction are given.

6. Shri Kilor, learned Counsel has first addressed us on

question of maintainability and later replied to defense arguments of

respondent nos. 4, 5 and 6.

(A). He points out that the Hon’ble The Chief Justice is Head of

State Judiciary and of Nagpur Bench also. Hence, exercise of power to

treat letter as PIL by Hon’ble Chief Justice is not vitiated at all. It is

pointed out that Hon’ble Chief Justice could have transferred the case

from Nagpur to Mumbai and vice-versa. (2010)10 SCC 320–(State of

Uttar Pradesh vs. Neeraj Chaube and Others) (para 9-10), (2000)2 SCC

391–(R. Rathinam vs. State by DSP, District Crime Branch) (para 9-10)

and (1998) 1 SCC 1–(State of Rajasthan vs. Prakash Chand and

Others) (para 10 and 59) are cited to explain the scope of powers of

Hon’ble Chief Justice. It is urged that there is difference between

“treating” a letter as PIL and in “entertaining” it as PIL. Once the matter

::: Downloaded on – 09/06/2013 17:45:33 :::
25

is registered as PIL, Division Bench hearing it on judicial side has to

decide it as PIL.

(B). As by taking cognizance as PIL, no civil consequences ensue,

hearing at that stage is not necessary at all. It offers an opportunity to

correct and Zilla Parishad as also other authorities could have verified

facts and initiated suitable action. It is not adversarial but a avenue for

participative justice. He relies upon (2010) 3 SCC 402, para 36-37

(supra). (2009) 15 SCC 351 (para 33) (A. Abdul Farook vs. Municipal

Council, Perambalur) is relied upon to urge that therefore strict rules of

pleading do not apply.

(C). It is contended that material on record clearly demonstrates

collusion between Gram Panchayat and respondent no.5 because of

later’s political influence. Stand taken by respondent nos. 4 and 6 is

contrary to law and to favour respondent no.5. Contents of paragraph

5E of writ letter and affidavit filed on 22/6/2011, para 4/5 are pressed

into service. Attention is invited to resolution of Gram Panchayat dated

27/6/2007 to show how casually sanction is given to construct on plot

nos. 12 to 17. New 5 buildings therefore could come up inspite of the

::: Downloaded on – 09/06/2013 17:45:33 :::
26

cognizance by this Court. (2003)4 SCC 1–(para 4,9,10)–(Mohd. Aslam

vs. Union of India) is relied upon to urge that technical or narrow

approach in such matters is not permissible. Availability of PIL in such

matters is sought to be supported from observations of Hon’ble Apex

Court in para 55,74 and 75 in AIR 2010 SC 1030–(Priyanaka Estates

International Pvt. Ltd. vs. State of Assam). (2004) 8 SCC 733– (Friends

Colony Development Committee vs. State of Orissa) (para

20,22,25,26,28-7) is also relied upon to show how Hon’ble Apex Court

has approached the rampant problem of unauthorized illegal

constructions in Cuttack city. Reply affidavits of SDO and deliberate

erroneous interpretation of communication dated 14/10/1994 by Zilla

Parishad is pointed out to urge that Section 142 of the 1958 Act is not

at all an adequate or efficacious remedy here. Change in stand of Zilla

Parishad is also commented upon to support this argument. Pleading

that these authorities had earlier refused/neglected to act in letter (PIL)

is also relied on.

(D). It is pointed out that the respondent no.5 also has on

affidavits consistently accepted the application of Municipal Rules to the

structures raised by it and then, altered it suddenly to Section 52 of the

::: Downloaded on – 09/06/2013 17:45:33 :::
27

1958 Act. It is further urged that the construction was going on during

pendency of petition, and contrary to its own affidavits, the Municipal

Rules are also breached by raising excess construction i.e., in excess of

FSI and in marginal space. Paragraph 4 of affidavit of Petitioner 15

dated 10/8/2009 is urged to be asserting this position only and effort is

made to show that it contains an apparent typographical error. He states

that Petitioners engaged his services in February, 2008 and after receipt

of all replies appropriate amendment was sought. The amendment is on

same lines and does not alter the nature of writ petition but advances

the same public cause. He argues that till 2007, only college was

complete and construction of hostel was going on. Thereafter, other

constructions have also come up. Affidavits of respondent no.4 Gram

Panchayat filed on 2/2/2011 and filed on 4/3/2011 are relied upon to

show that location of these constructions beyond “gaothan” i.e., village

area is accepted. Resolution of Gram Panchayat dated 22/10/1999 is

pointed out to show that Gram Panchayat did not even consider FSI or

marginal space. Hence, Section 52 of 1958 Act can not apply. AIR 2006

S.C. 1325 (M. C. Mehta v. Union of India), is relied to show how

Hon’ble Apex Court has dealt with such problem. In AIR 1950 S.C. 27

(A. K. Gopalan v. State of Madras), manner of achieving balance

::: Downloaded on – 09/06/2013 17:45:33 :::
28

between rights of individual and society is pointed out. Air 2004 SC

2615 (paras 33,35 and 26)- (Indian Banks’ Assocn. v. Devkala

Consultancy Service) and (2006) 5 SCC 28 (para 23,31,32)– (T.N.

Godavarman Thirumulpad vs. Union of India and Others) are relied

upon to establish locus of Petitioners. In the alternative, it is urged that

this Court can even discharge Petitioners and note blatant illegalities to

proceed suo motu. He states that action may be directed against alleged

illegalities in structures of Petitioners also. Total population of Nalwadi

is 8052 to show that Nalwadi is not even worth a “C” class municipal

council and respondent no.5 has used FSI 4 times more than the legally

available. After the orders of this Court dated 1/12/2010, the grounds

about college and other structures and malafides were added.

7. Shri De, learned Counsel, in rejoinder has reiterated that

law of pleadings and burden of proof also applies to PIL and present

petitioners have failed to meet it. He relies upon judgment of Hon’ble

Apex Court in case of Narmada Bachao Andolan Vs. State of Madhya

Pradesh and Another reported at 2011(5) SCALE 624, for this

proposition. He points out the respondent no.5 is not estopped from

pointing out correct legal provisions applicable to their constructions.

::: Downloaded on – 09/06/2013 17:45:33 :::
29

Here neither Zilla Parishad nor State Government have acted under

Section 176 of the 1958 Act to frame any Rules in that regard. The

argument of Petitioners requesting this Court to act suo motu or of

action against their structures is stated to be to save lost face, and by

way of after-thought and malafide one.

8. Here We find it necessary to narrate the contents of the

communication dated 8/10/207 sent by Petitioners and treated as PIL

by this Court.

(A). Perusal of letter dated 8/10/2007 reveals that it is in the

from of application. Applicants therein are described as “Citizens of Shri

Swami Samartha Nagari, through its Shri Swami Samartha Anyay

Niwaran Samiti, Nalwadi, Tq. and Dist. Wardha and then 15 names

appear. 5 Non-applicants shown in the letter are Tahsildar,

Collector,Sub-Divisional Officer, Gram Panchayat-Nalwadi and Mahila

Vikas Sanstha i.e., present respondent no.5. Thereafter it is urged that

the application may kindly be treated as public interest litigation. Below

it object stated is to take the action against non-applicants nos. 1 to 4

for failure in discharging their official duties and for appropriate

::: Downloaded on – 09/06/2013 17:45:33 :::
30

direction to non-applicant no. 5 not to use residential plots for

commercial purpose. They have pleaded that they have purchased and

constructed on plots in field survey no. 56/1, Mouza Nalwadi. They have

annexed the order of SDO dated 12/2/1989 by which said survey

number was converted to residential purpose. Entire survey number is

only for residential use. Then bye-law no. 20.1 and Appendix G of

Municipal Rules is pointed out and entire lay out is claimed to come

under residential zone R-1. It is pleaded that commercial purpose is

strictly prohibited. Communication dated 14/10/1994 of Urban

Development Department also figures in it.

(B). Respondent no.5 is stated to be association of rich powerful

and politically influential persons who have started a College in the

vicinity. Hostels for boys and girls are also stated to be constructed in

residential area by violating rules and provisions. It is also claimed that

respondent no.5 has thus violated law and because of money, power

and political influence, respondent nos. 1 to 4 bound to execute law are

utterly negligent. Grant of permission by respondent no.4 to G+2

structures is urged to be illegal. Then current development is pointed

::: Downloaded on – 09/06/2013 17:45:33 :::
31

out by pleading that respondent no.5 is constructing a ladies hostel on

plot nos. 12 to 17 in residential layout on survey no. 56/1 and

respondent no.4 has by going beyond law and overlooking

permissible user and also for G+3 storied building. They have alleged

that application was moved on 2/1/2007 and permission was granted

on 11/7/2007. Then they have pointed out how construction of

college and hostel, the increased traffic has created nuisance and

caused mental, financial and physical loss to them. Narrow layout roads

and rash driving by students, vulgar comments and harassment to

families is also disclosed. They have then pointed out representation

made by them in writing and orally to Respondent nos. 2 to 4. On

democracy-day, representation was made to respondent no.2. On

29/8/2007 complaint was given to respondent no.3. None of the

Respondents paid any heed to it. After this complaint, work is still stated

to be on, use of some gunda element by respondent no.5 and

implication of citizens in false criminal cases. Absence of proper

drainage system, water seepage in walls, tube wells and diseases. Public

nuisance is pointed out with failure on part of Respondent nos. 2 to 4 to

control it. Prayer is to take action against these Respondents for their

negligence. Direction is also sought to stop and remove the construction

::: Downloaded on – 09/06/2013 17:45:33 :::
32

on plot 12 to 17. Other appropriate relief against Respondent nos. 2 to 5

is also claimed.

(C). On 9/6/2008, this letter or application has been amended. In

amended part they have pointed out that after their complaint dated

28/9/2007, respondent no.1 and 3 conducted inquiry and found

permission given by respondent no.4 bad. These authorities accordingly

informed respondent no.6 Zilla Parishad. But Zilla Parishad failed to

exercise its powers. It is alleged that the college building is also illegal as

it is in residential zone. All plans submitted to Gram Panchayat were of

plots for residential purpose and commercial structures have come up.

For College, actually map of house was submitted and Gram Panchayat

is hand in glove with the respondent no.5. The structures are alleged to

be in violation of Municipal Rules and Extension Rules. As respondent

no.6 Zilla Parishad did nothing, request for detail inquiry and proper

action against the authorities and officers is asked. Inquiry is prayed

into illegal construction and illegal permissions by respondent no.4 and

in failure on part of respondent no.6 to act. Removal of all illegal

constructions with punishment for all officers/authorities found guilty is

therefore requested by him.

::: Downloaded on – 09/06/2013 17:45:33 :::
33

9. It is first necessary to note how illegal and un-authorized

development is viewed by the Hon’ble Apex Court.

(A). Judgment of Hon’ble Apex Court in AIR 2010 SC 1030–

(Priyanaka Estates International Pvt. Ltd. vs. State of Assam.),

particularly in para 55,74 and 75 are important here. Following

observations show that interest of society or public at large is prejudiced

because of unauthorized constructions.

“74. Even though on earlier occasions also, under
similar circumstances, there have been judgments of this

Court which should have been a pointer to all the

builders that raising unauthorized construction never
pays and is against the interest of society at large, but,
no heed to it has been given by the builders. Rules,

Regulations and Bye-laws are made by Corporation or
by Development Authorities, taking in view the larger
public interest of the society and it is a bounden duty of

the citizens to obey and follow such Rules which are
made for their benefit. If unauthorized constructions are
allowed to stand or given a seal of approval by court
then it is bound to affect the public at large. An

::: Downloaded on – 09/06/2013 17:45:33 :::
34

individual has a right, including a fundamental right,

within a reasonable limit, it inroads the public rights
leading to public inconvenience, therefore, it is to be

curtailed to that extent.

75. The jurisdiction and power of courts to indemnify a

citizen for injuries suffered due to such unauthorized or
illegal construction having been erected by
builder/colonizer is required to be compensated by

them. An ordinary citizen or a common man is hardly

equipped to match the might and power of the builders.

76. In the case in hand, it is noted that number of
occupiers were put in possession of the respective flats by
the builder/developer constructed unauthorizedly in

violation of the laws. Thus, looking to the matter from

all angles it cannot be disputed that ultimately the flat
owners are going to be the greater sufferers rather than
builder who has already pocketed the price of the flat.

77. It is a sound policy to punish the wrong-doer and it
is in that spirit that the courts have moulded the reliefs

of granting compensation to the victims in exercise of
the powers conferred on it. In doing so, the courts are
required to take into account not only the interest of the
petitioners and the respondents but also the interest of
public as a whole with a view that public bodies or

::: Downloaded on – 09/06/2013 17:45:33 :::
35

officials or builders do not act unlawfully and do

perform their duties properly.”

(B). In AIR 2005 S.C. 1-(2004) 8 SCC 733 (Friends Colony

Development Committee vs. State of Orissa) (para 20,22,25,26,28-7),

Hon’ble Apex Court has considered S.91, S.92 of Orissa Development

Authorities Act (14 of 1982), and Regn. 1 Cuttack Development

Authority (Planning and Building Standard) Regulations (2001). It is

found that construction activity in city of Cuttack presented a sordid

state of affairs and stringent actions by ruthlessly demolishing illegal

constructions and non-compoundable deviations therefore necessary.

Unwary purchasers of such buildings are held entitled to be

compensated and responsibility was fixed on officials whose duty it was

to prevent unauthorized constructions. Regularization of deviations

is held permissible only in case of bonafide deviations and directed to

be dealt with by multi-membered High Power Committee. Heavy penalty

to be imposed on erring professional builders, Fund to compensate

unwary purchasers to be built up therefrom. In paragraph 28(7), the

Hon’ble Apex Court observes that if High Court feels that illegal/

unauthorized building activities in Cuttack are so rampant as to be

::: Downloaded on – 09/06/2013 17:45:33 :::
36

noticed judicially, it may suo motu register a public interest litigation

and commence monitoring the same by issuing directions so as to curb

such tendency and fixing liability and accountability.

(C). In Mohd. Aslam v. Union of India reported at (2003) 4 SCC

1), the Hon’ble Apex Court has considered the technical objections

raised in situation when it has treated letters, telegrams or postcards or

news reports as writ petitions. In such petitions, on the basis of

pleadings that emerge in the case after notice to different parties, relief

can be given or refused. Therefore, Court should not approach matters

where public interest is involved in a technical or a narrow manner.

Particularly, when Court has entertained the petition, issued notice to

different parties, new parties have been impleaded, it would not be

appropriate for the Court to dispose of the petition on such grounds. In

proceeding before Hon’ble Apex Court initiated as a public interest

petition, several reliefs were claimed but after the interested parties

were impleaded and their pleadings were put forth, Hon’ble Apex Court

gathered what crystallized therefrom as the controversy involved.

(D). AIR 2006 S.C. 1325 (M. C. Mehta v. Union of India) shows

::: Downloaded on – 09/06/2013 17:45:33 :::
37

how the Hon’ble Apex Court has dealt with such problems of conflicts.

In AIR 1950 S.C. 27 (A. K. Gopalan v. State of Madras), rights of

individual and society are balanced by expressing that there cannot be

any such thing as absolute or uncontrolled liberty wholly freed from

restraint, for that ‘would lead to anarchy and disorder. The possession

and enjoyment of all rights, as was observed by the Supreme Court of

America in Jacobson v. Massachusetts, 197 U. S. 11, are subject to such

reasonable conditions as may be deemed by the governing authority of

the country essential to the safety, health, peace, general order and

morals of the community. “The question, therefore, arises in each case of

adjusting the conflicting interests of the individual and of the society. In

some cases, restrictions have to be placed upon free exercise of

individual rights to safeguard the interests of the society; on the other

hand, social control which exists for public good has got to be

restrained, lest it should be misused to the detriment of individual rights

and liberties.

10. Respondent no.5 has raised various preliminary objections.

While considering the same one by one, We point out that reference to it

is again being made below after noticing the reports of various public

::: Downloaded on – 09/06/2013 17:45:33 :::
38

officers on the structures raised by respondent no.5.

(A). One out of them is cognizance taken by Hon’ble The Chief

Justice at Bombay. 2003(4) Mah.L.J. 635 (pl.B) (Surendra Ramchandra

Jichkar vs. State of Maharashtra), considers Chapter IV Clause 2A in

Bombay High Court Appellate Side Rules, 1960, then regulating public

interest litigation Jurisdiction. Petition challenging the location of

Country Liquor Shops in residential locality was entertained as public

interest litigation and said powers exercised by learned Single Judge

are held de hors and inconsistent with the provisions of clause 2A of

Chapter IV of the Rules. It is further said that in view of the above

referred specific provision, petition involving public interest is required

to be heard only by the Division Bench, that too only after obtaining

orders, if the matter is at Bombay from the Hon’ble the Chief Justice and

if the matter is before the Benches, from the Senior-most Judge available

at the concerned Benches. The provision is found absolutely

unambiguous and clear and gives jurisdiction to entertain public interest

litigation only to the Division Bench, that too after obtaining necessary

permission as contemplated in clause 2A of Chapter IV of the Rules.

::: Downloaded on – 09/06/2013 17:45:33 :::
39

(B). In (1992)1 SCC 534- AIR 1992 SC 1555 (Shrisht Dhawan

(Smt) v. Shaw Bros.), the Hon’ble Apex Court states that error in

assumption of jurisdiction should not be confused with mistake, legal or

factual in exercise of jurisdiction. In the former the order is void

whereas in the latter it is final unless set aside by higher or competent

court or authority. An order which is void can be challenged at any time

in any proceeding. A permission granted under rent control legislation

once permitted to attain finality becomes unassailable on error in

exercise of jurisdiction. It could be challenged later or in execution only

if it could be brought in the category of a void or ultra vires permission.

Such invalidity can arise if jurisdiction is exercised by misrepresentation

of facts either about existence of vacancy or nature of premises. In other

words what attains finality in accordance with law cannot be permitted

to be re-agitated or reopened except in the larger social interest of

preventing a person from practicing deceit. Therefore an error of

jurisdictional fact which could entitle a Controller to re-examine the

matter in the context of relevant provision i.e., Section 21of the Delhi

Rent Control Act, 1958 is the same, namely, fraud or collusion. Ratio in

Noronah to this extent was reiterated and accepted as correct exposition

of law in Shiv Chander Kapoor. It has to be understood as such.

::: Downloaded on – 09/06/2013 17:45:33 :::
40

(C). Position of the Hon’ble Chief Justice assumes importance

here. Hon’ble Apex Court in (2010)10 SCC 320 (State of Uttar Pradesh

vs. Neeraj Chaube and Others) (para 9-10) holds that :–

“9. The High Court had taken note of various
judgments of this Court including State of

Maharashtra v. Narayan Shamrao Puranik2, Inder

Mani v. Matheshwari Prasad3, State of Rajasthan v.

Prakash Chand4, R. Rathinam v. State5 and Jasbir

Singh v. State of Punjab6 and various judgments of
the High Courts and came to the conclusion that the

Chief Justice is the master of roster. The Chief Justice

has full power, authority and jurisdiction in the
matter of allocation of business of the High Court
which flows not only from the provisions contained in

sub-section (3) of Section 51 of the States
Reorganization Act, 1956, but inheres in him in the
very nature of things. The Chief Justice enjoys a

special status and———- Judge or a Bench of Judges
can assume jurisdiction in a case pending in the High
Court only if the case is allotted to him or them by
the Chief Justice. Strict adherence of this procedure is

::: Downloaded on – 09/06/2013 17:45:33 :::
41

essential for maintaining judicial discipline and

proper functioning of the Court. No departure from
this procedure is permissible.

10. In case an application is filed and the Bench
comes to the conclusion that it involves some issues

relating to public interest, the Bench may not
entertain it as a public interest litigation but the

court has its option to convert it into a public interest
litigation and ask the Registry to place it before
ig a
Bench which has jurisdiction to entertain the PIL as
per the Rules, guidelines or by the roster fixed by the

Chief Justice but the Bench cannot convert itself into
a PIL and proceed with the matter itself.”

(D). Same view is expressed in (2000)2 SCC 391 (R. Rathinam

vs. State by DSP, District Crime Branch) (para 9-10) and then in (1998)

1 SCC 1 (State of Rajasthan vs. Prakash Chand and Others) (para 10

and 59). In paragraph 59 of last judgment Hon’ble Apex Court has laid

down broad conclusions which emerge from various judgments.

(E). The above judgments nowhere support the contention that

in High-Courts with benches, powers available to the Hon’ble the Chief

::: Downloaded on – 09/06/2013 17:45:33 :::
42

Justice are exercisable only at principal seat and not at its benches.

More over, even if Chapter IV Clause 2A of Bombay High Court

Appellate Side Rules, 1960 is to be applied, here the Senior Judge or the

Administrative Judge at Nagpur Bench was independently approached

and, with due application of mind, the Senior Judge decided to call for

report of the Collector. Thus, independently cognizance was also taken

at Nagpur. The report of the Collector does not disclose any material to

even remotely suggest that cognizance as PIL was not warranted.

Taking cognizance of PIL is mostly an administrative exercise and it is

not necessary to hear the alleged wrong doer at that stage. Such

aggrieved person can always make suitable grievance when matter is

being judicially examined by the regular bench. The law does not

contemplate a hearing before taking cognizance as PIL and further

challenges to the orders taking cognizance of either Hon’ble Chief

Justice or the Senior Judge by the aggrieved party. If arguments of Shri

De, learned counsel are to be accepted two hearings i.e., one before the

cognizance and later hearing on judicial side after such cognizance

become imperative. Such a course of action may lead to uncertainty and

delay thereby militating with the very basics of concept of PIL. Persons

attempting to invoke that jurisdiction may in such an eventuality be

::: Downloaded on – 09/06/2013 17:45:33 :::
43

forced to regular civil or other jurisdiction for immediate interim relief

appropriate to their grievance. It is clear that all the available grounds

for urging that grievance should not be treated as PIL therefore need to

be raised as defences or objections during hearing of such PIL by regular

bench on judicial side and not by separate writ petition. The earlier

Division Bench of this Court has rightly disposed of earlier W.P. No.5933

of 2010 filed in this regard by respondent no.5 which was allowed to be

withdrawn on 16/12/2010 by giving it liberty to raise all such objections

as defences in this matter. As such there is no question of opportunity of

hearing or then recording of reasons by the Hon’ble Chief Justice or

Senior Judge at benches and hence, the case law cited for that purpose

need not be considered. It also needs to be noted that the Senior Judge

at Nagpur in October did call for report of respondent no.2- Collector.

Said report is dated 6/14-12-2007 and after its perusal only the notice

has been issued to Respondents on 19/12/2007. The Senior Judge who

did call for that report on administrative side was also a Senior Judge

and party to order dated 19/12/2007. Thus even if any lacuna is

presumed as cognizance was first taken at Mumbai still the later steps

taken at Nagpur sufficiently make amends for it. A court with inherent

lack of jurisdiction like Single Judge has not interfered in the matter at

::: Downloaded on – 09/06/2013 17:45:34 :::
44

all. Hence, even on this count the objection is unsustainable. The

provisions made in High Court Appellate Side Rules to avoid frivolous

petitions have been substantially complied with and the concept of

“coram non judis” or other related arguments do not need discussion

here. Even otherwise, in present facts We are satisfied that respondent

no.5 has not suffered any prejudice due to alleged non-hearing or no-

reasons.

11.

Other objection to the tenability are due to alleged

acquiescence by Petitioners and their credentials or absence of its

verification.

(A). Petitioners are residents of Nalwadi and their houses are in

layout in survey no. 56/1. The construction of hostel going on when

letter dated 8/10/2007 was written by the Petitioners is in same survey

number. In (2005)3 SCC 91 (R and M Trust vs. Koramangla Residents

Vigilance Group) –AIR 2005 SC 894 (para 23 to 37), Hon’ble Apex

Court states :–

“23. This sacrosanct jurisdiction of Public Interest

::: Downloaded on – 09/06/2013 17:45:34 :::
45

Litigation should be invoked very sparingly and in

favour of vigilant litigant and not for the persons
who invoke this jurisdiction for the sake of publicity

or for the purpose of serving their private ends.

Hon’ble Apex Court has also noted that Prof. S.B.

Sathe has summarized the extent of the jurisdiction

which has now been exercised in the following
words :

“PIL may, therefore, be described as satisfying one

or more of the following parameters. These are not

exclusive but merely descriptive :

Where the concerns underlying a petition are not

individualist but are shared widely by a large
number of people (bonded labour, under-trial
prisoners, prison inmates.)

Where the affected persons belong to the

disadvantaged sections of society (women, children,
bonded labour, unorganized labour, etc.)
Where judicial law making is necessary to avoid

exploitation (inter-country adoption, the education
of the children, bonded labour, unorganize labour,
etc.)

Where judicial law making is necessary to avoid
exploitation (inter-country adoption, the education
of the children of the prostitutes).

Where judicial intervention is necessary for the
protection of the sanctity of democratic institutions

::: Downloaded on – 09/06/2013 17:45:34 :::
46

(independence of the judiciary, existence of

grievances redressal forums.)
Where administrative decisions related to

development are harmful to the environment and
jeopardize people’s right to natural resources such
as air or water.”

25.In this connection reference may be made to a
recent decision given by this Court in the case of
Dattaraj Nathuji Thaware v. State of Maharashtra

and Ors. (S.L.P. (C) No.26269 of 2004) in which

Hon’ble Pasayat J, has also observed as follows :

“Public Interest Litigation is a weapon which has to

be used with great care and circumspection and the
judiciary has to be extremely careful to see that
behind the beautiful veil of public interest an ugly

private malice vested interest and/or publicity

seeking is not lurking. It is to be used as an effective
weapon in the armory of law for delivering social
justice to the citizens. The attractive brand name of

public interest litigation should not be used for
suspicious products of mischief. It should be aimed
at redressal of genuine public wrong or public injury

and not publicity oriented or founded on personal
vendetta.”

(B). On delay and latches, Hon’ble Apex Court has observed that

::: Downloaded on – 09/06/2013 17:45:34 :::
47

delay is a very important factor while exercising extraordinary

jurisdiction under Article 226 of the Constitution. Court cannot disturb

the third party interest created on account of delay. Hon’ble Apex Court

was of the opinion that delay in case before it is equally fatal as the

construction was already started by the appellant in 1987 and building

had come up to three floors. Thereafter it was stopped in 1988 and in

March, 1991 it resumed after permission was granted. The Writ Petition

was filed in November, 1991 while in the meanwhile construction was

complete. Therefore, delay was held fatal. It was also brought to Hon’ble

Court’s notice that 46 multi storey buildings had come up with more

than three and four floors each. What is important is the observation of

Hon’ble Apex Court on this. It reads :-

“35. However, we are satisfied that there is no
prohibition under the provisions of the Act and Rules

putting the ceiling on construction of the multi- storey
building. We are also satisfied that the delay is also
fatal in the present case . ”

In facts before us, there is no creation of any third party interest and

multi storey buildings with excess FSI are not sustainable as per any

::: Downloaded on – 09/06/2013 17:45:34 :::
48

legal provisions. This ruling therefore helps the cause of Petitioners.

(C). Facts in AIR 2006 SC 2643–(Kushum Lata vs. Union Of

India) show that the appellant styled the petition as PIL though it

related to a tender where she herself was a tenderer. In another petition,

questioning legality of the auction, she was a party. The High Court was

therefore held justified in dismissing the writ petition styled as a PIL.

Observations of Hon’ble Apex Court in paragraph 13 are in this

background and words of caution and restraint in exercise of PIL

jurisdiction are reiterated. We may also note that in AIR 2006 S.C.

1489– (Bombay Dyeing and Mfg. Co. Ltd. v. Bombay Environmental

Action Group), Hon’ble Apex notes that public interest litigations have

been entertained more frequently where a question of violation of the

provisions of the statutes governing the environmental or ecology of the

country has been brought to its notice in the matter of depletion of

forest areas and/or when the executive while exercising its

administrative functions or making subordinate legislation’s has

interfered with the ecological balance with impunity. Hon’ble Apex

Court in (2008) 3 SCC 542–AIR 2008 SC 1614 (Divine Retreat Centre

vs. State of Kerla and Others) lays down that the document petitioning

::: Downloaded on – 09/06/2013 17:45:34 :::
49

the Court for relief should be supported by satisfactory verification. It is

held to be more so where petitions are received by the Court through

the post. Reason noted by Hon’ble Court is it is never beyond the bound

of possibility that an unverified communication received through the

post by the Court may in fact have been employed malafide, as an

instrument of coercion or blackmail or other oblique motive against a

person named therein who holds a position of honour and respect in

society. The Hon’ble Apex Court states that court must be ever vigilant

against the abuse of its process. It cannot do that better in the matter

than insisting at the earliest stage, and before issuing notice to the

respondent, that an appropriate verification of the allegations be

supplied. The public Interest Litigant must disclose his identity so as to

enable the Court to decide that the informant is not a wayfarer or

officious intervener without any interest or concern. The Court should

be prima facie satisfied that the information laid before it is of such a

nature that it calls for examination and this prima facie satisfaction may

be derived from the credentials of the informant, namely, what is the

character or standing of the informant or from the nature of the

information given by him, namely, whether it is vague and indefinite or

contains specific allegations as a result of survey or investigation or from

::: Downloaded on – 09/06/2013 17:45:34 :::
50

the gravity or seriousness of the complaint set out in the information or

from any other circumstance or circumstances appearing from the

communication addressed to the court or to a Judge of the court on

behalf of the court. Here in facts before us the letter is not anonymous

and identity of Petitioners is not in dispute. The letter contains necessary

details which rule out any falsity in its contents. Moreover, the Senior

Judge at Nagpur did call for report of Collector and after its perusal the

notice has been issued to Respondents.

(D). In (2010)11 SCC 557–AIR 2010 S.C. 2210 (Manohar Lal vs.

Ugrasen and Ghaziabad Development Authority vs. Ugrasen), Hon’ble

Apex Court finds that the State Government, could not have entertained

directly the applications by Sh. Ugrasen and Sh. Manohar Lal. The

action of the State Government is held arbitrary and abuse of power as

the State Government deprived GDA exercise of its power under the Act.

Hon’ble Court also noted that none of the parties considered it proper

to place the authentic documents before the Court to help it to

determine real facts. The Land Policy provided only for allotment of

land in residential area. The fact of illegal allotment of land in

commercial area was brought to the notice of the Apex Court vide

::: Downloaded on – 09/06/2013 17:45:34 :::
51

affidavit of the Vice-Chairman, GDA dated 27.5.2010 which was not

brought on record before the High Court by GDA or by the State

Government. The appellants had also not disclosed that land allotted to

them was in commercial area. Hon’ble Supreme Court held that a

person invoking equity in exercise of its extraordinary jurisdiction under

Articles 226/227 of the Constitution, he should approach the Court not

only with clean hands but also with clean mind, clean heart and clean

objective. Such a litigant is not required to be dealt with lightly, as

petition containing misleading and inaccurate statement, if filed, to

achieve an ulterior purpose amounts to abuse of the process of the

Court. Hon’ble Apex Court found it a fit case for ordering enquiry or

initiating proceedings for committing criminal contempt of the Court as

the parties succeeded in misleading the Court by not disclosing the true

facts. It further ob served that:– “However, we are not inclined to waste

court’s time further in these cases. Our experience has been that the so-called

administration is not likely to wake-up from its deep slumber and is never

interested to redeem the limping society from such hapless situations. We

further apprehend that our pious hope that administration may muster the

courage one day to initiate disciplinary/criminal proceedings against such

applicants/erring officers/ employees of the authority, may not come true.

::: Downloaded on – 09/06/2013 17:45:34 :::
52

However, we leave the course open for the State Government and GDA to

take decision in regard to these issues and as to whether GDA wants to

recover the possession of the land already allotted to these applicants in

commercial area contrary to the Land Policy or value thereof adjusting the

amount of compensation deposited by them, if any.”

12. Though several judgments have been cited, We find it

necessary to mention AIR 2010 S.C. 2050 =(2010) 3 SCC 402- (State

of Uttarnchal vs. Balwant Singh Chaufal)
, where Hon’ble Apex Court

has laid down certain norms and important out of it are :–

“(3) The courts should prima facie verify the
credentials of the petitioner before entertaining a
P.I.L. (4) The court should be prima facie satisfied

regarding the correctness of the contents of the
petition before entertaining a PIL. (5) The court
should be fully satisfied that substantial public

interest is involved before entertaining the petition.
(6) The court should ensure that the petition which
involves larger public interest, gravity and urgency
must be given priority over other petitions.(7) The
courts before entertaining the PIL should ensure that

::: Downloaded on – 09/06/2013 17:45:34 :::
53

the PIL is aimed at redressal of genuine public harm

or public injury. The court should also ensure that
there is no personal gain, private motive or oblique

motive behind filing the public interest litigation. (8)
The court should also ensure that the petitions filed
by busybodies for extraneous and ulterior motives

must be discouraged by imposing exemplary costs or
by adopting similar novel methods to curb frivolous
petitions and the petitions filed for extraneous

considerations. “

While tracing history of PIL in country, Hon’ble Apex Court

noted that the public interest litigation is an extremely important

jurisdiction exercised by the Supreme Court and the High Courts. The

Courts in a number of cases have given important directions and passed

orders which have brought positive changes in the country. The Courts’

directions have immensely benefited marginalized sections of the society

in a number of cases. It has also helped in protection and preservation of

ecology, environment, forests, marine life, wildlife etc. etc. The court’s

directions to some extent have helped in maintaining probity and

transparency in the public life. Hon’ble Apex Court while exercising its

jurisdiction of judicial review realized that a very large section of the

society because of extreme poverty, ignorance, discrimination and

::: Downloaded on – 09/06/2013 17:45:34 :::
54

illiteracy had been denied justice for time immemorial and in fact they

have no access to justice. Predominantly, to provide access to justice to

the poor, deprived, vulnerable, discriminated and marginalized sections

of the society, Hon’ble Court has initiated, encouraged and propelled

the public interest litigation. The litigation is upshot and product of

Hon’ble Apex Court’s deep and intense urge to fulfill its bounded duty

and constitutional obligation. The courts expanded the meaning of right

to life and liberty guaranteed under Article 21 of the Constitution. The

rule of locus-standi was diluted and the traditional meaning of

‘aggrieved person’ was broadened to provide access to justice to a very

large section of the society which was otherwise not getting any benefit

from the judicial system. In paragraph 36, Hon’ble Apex Court observes

that little Indians in large numbers seeking remedies in courts through

collective proceedings, instead of being driven to an expensive plurality

of litigations, is an affirmation of participative justice in our democracy.

Hon’ble Court states that the narrow concepts of ’cause of action’,

‘person aggrieved’ and individual litigation are becoming obsolescent in

some jurisdictions. In (2009) 15 SCC 351 (para 33)=2009 AIR SCW

5292 (A. Abdul Farook vs. Municipal Council, Perambalur), in

paragraph 17, Hon’ble Apex Court noted that in a public interest

::: Downloaded on – 09/06/2013 17:45:34 :::
55

litigation of nature before it, it is not necessary for the Court to abide by

the strict rules of pleadings and even if it is found that the petitioners

are busy bodies, the courts while discharging them, could proceed to

deal with the public interest litigation suo motu.

This discussion also shows that there can not be any estoppel

or acquiescence in such matters when this Court has found the cause

presented to it as public cause and cognizance is taken in larger public

interest. Discussion little later reveal despite the reports of various

authorities, the wrongful and highhanded refusal by the respondents to

discharge their obligation, as also efforts made by them to protect

respondent no.5 in the matter, all exposing abuse of power and

position. It emphasizes need to adopt approach adequate to restore rule

of law and a need for rejection of all technical objections being raised

by respondent no.5 and other respondents to support him. The

restraints recognized by Hon’ble Apex Court are not meant to enable

wrongdoers and manipulators to avoid the legal vindication and to

protect or to succeed in enjoying the benefits of their misdeeds by

continuing to indulge in activities prejudicial to public at large.

Respondent no.5 or for that purpose none of the respondents before us

::: Downloaded on – 09/06/2013 17:45:34 :::
56

have for a minute repented for their attitude and acts.

13. Argument of bar to entertain a PIL due to availability of

alternate remedy needs outright rejection not only because facts here

call for a rather liberal approach but also as same is misconceived. Said

contention is based on Section 142 of the 1958 Act. Its scope is

explained by Full Bench of this Court in 2004(2) Mah.L.J. 874-para 44 –

(Sanjay Govind Sapkal vs. Collector of Dhule) and 2009(5) Mah.L.J.

711-para 9- (Sandip Diwakar Joshi vs. Corporation of City of Nagpur),

treats some what similar provision in City Of Nagpur Corporation Act,

1948, as alternate remedy. Contention is, that petitioners never

approached Zilla Parishad and impleaded it directly here after matter

is treated as PIL . The bar of alternate remedy is self imposed and never

absolute in writ jurisdiction under Article 226 of the Constitution.

Rigour of such bar must get diluted or it must be held as not available in

PIL jurisdiction. In present facts, when matter is properly taken

cognizance of as PIL, it is obvious that same is due to apparent failure on

part of State Government and Local Bodies to effectively discharge their

statutory obligations. When Petitioners did approach Collector and

Gram Panchayat for redressal and those authorities ignored it, it is

::: Downloaded on – 09/06/2013 17:45:34 :::
57

obvious that their refusal to act is not mere omission. Even one Chief

Executive Officer of respondent no.6 Zilla Parishad has found all

structures of respondent no.5 illegal. Looking to the large scale

constructions undertaken and completed by the respondent no.5 and

change in stance of authorities to favour it , their collusion with

respondent no.5 is seen. None of these authorities have come up with

defence that their employees noticed these structures and found

nothing wrong with it. We find that these Local Bodies, their employees

and also the elected representatives have tacitly permitted the

constructions to come up. They are party to it and are interested in

protecting it. The deliberate wrong interpretation of communication

dated 14/10/1994 by Zilla Parishad itself exposes its bias in the matter.

respondent no.6 has filed incorrect affidavit to mislead this Court.

Asking the Petitioners to approach these authorities will be nothing but

to oblige respondent no.5 by giving it a further and undue time. In the

light of observations of Hon’ble Apex Court in State of Uttarnchal vs.

Balwant Singh Chaufal

-(supra), it is apparent that at least in facts at

hand, remedy under Section 142 can not be viewed as alternative and

equally efficacious remedy to bar exercise of its PIL jurisdiction by this

Court. We are also considering the reports of Collector, Wardha; One

::: Downloaded on – 09/06/2013 17:45:34 :::
58

Chief Executive Officer of respondent no.6, Sub-divisional Officer and

Block Development Officer below and conduct of respondent no.4 and

6. These authorities did not act when law obliged them to and helped

respondent no.5 at that crucial juncture. Their complicity in the matter

also shows that moving under Section 142 of the 1958 Act would have

been an empty formality. Bar of alternate remedy as urged in this

situation is misconceived. If Gram Panchayat has really sent the

resolutions granting sanction to structures of respondent no.5 to

respondent no.6 Zilla Parishad as asserted by it, respondent no.6 could

have and should have itself taken appropriate cognizance and initiated

steps to stop those constructions. Nothing prohibited it from initiating

those steps even during pendency of present PIL.

14. Which Building laws or regulations apply to constructions

raised by respondent no.5 is the next important issue.

(A). Respondent no.5 claims that permission was granted by

respondent no.4 and its structures are approved by that respondent.

Respondent no.4 Gram Panchayat has in turn claimed that permission

has been granted as per Section 52 of the 1958 Act. It has stated that

::: Downloaded on – 09/06/2013 17:45:34 :::
59

plots on which construction is made are not earmarked for extension of

village site and were beyond gaothan area i.e., beyond village or abadi

area. Therefore Extension Rules,1967 are not applicable. Hence, it is

relying upon only Section 52 of the 1958 Act. We therefore find merit

in contention of the Petitioners that as lands are beyond village area, the

permission could not have been accorded by Gram Panchayat. Gram

Panchayat has also asserted that permission to change user was granted

by competent authority and lay-out was also sanctioned by competent

revenue authority i.e., Sub-divisional Officer. Zilla Parishad has in its

affidavit reply filed on 12/11/2009 stated that its earlier admission

about unauthorized nature of construction was wrong. It came up with

case that Municipal Rules are not applicable here and permission

granted by Gram Panchayat is as per law. It is urged that there is no

demarcation as residential or commercial under Section 52 of the 1958

Act. Its earlier affidavit filed on 20/4/2009 shows applicability of

Section 52 of the 1958 Act read with Extension Rules. It is urged that

40% of the plot area can be constructed upon and hence, permission

given by Gram Panchayat was legal. With reply filed on 12/11/2009,

copy of letter dated 14/10/1994 is also produced to show that

applicability of Municipal Rules stands excluded by it. Bare perusal of

::: Downloaded on – 09/06/2013 17:45:34 :::
60

communication dated 14/10/1994 is enough to reject this statement in

as much as, it emphasizes that Municipal Rules should be followed for

villages where there is no Municipal Council and development scheme

has not been framed. It expressly cancels letter dated 8/12/1993 to the

contrary issued by the Director, Town Planning.

(B). It is obvious that sites on which respondent no.5 has raised

constructions are in revenue area and not included in area for which

development plan exists. Gram Panchayat can accord sanction if plots

approved in layout which is also sanctioned by revenue authorities are

within its limits. Admittedly, even as per respondent nos.4, 6 and 5 this

is not the case of extension of gaothan or village site. The Municipal

Rules therefore needed to be followed. Gram Panchayat can not

skirt/breach Municipal Byelaws as also Extension Rules and permit

constructions to come up or then many-fold FSI to respondent no.5.

After realizing the FSI problem, Gram Panchayat and Zilla Parishad

have thought it proper to invoke Section 52 only and urge that there is

no restriction either on user or on FSI in it. Thus effort is to show that

neither Municipal Rules nor the Extension Rules apply. Section 52 of

the 1958 Act is applicable in entire existing village where old structures

::: Downloaded on – 09/06/2013 17:45:34 :::
61

stand and it is to be used along with Extension Rules for sites beyond

existing village. When Gram Panchayat proceeds to grant permission to

construct, it has to be either as per Section 52 or then these Rules.

Even if it is presumed that it can grant sanction in relation to building

sites not in gaothan area or not forming a village site, it can not exercise

unbridled or unguided powers for that purpose. Only inference possible

is legislature has permitted Gram Panchayat to use said power in

relation to existing Gaothan or then new village site as per Extension

Rules and other places are excluded from its jurisdiction. In any case, if

such other places are held amenable to its jurisdiction, it follows that

construction has to be in conformity with the Municipal Rules by

adhering to letter dated 14/10/1994 on the subject. Respondent no.1

Tahsildar and Collector have in their affidavit pointed out that

permission given by respondent no.4 to respondent no.5 is not legal.

Bare perusal of Extension Rules reveal hollowness in contention of

respondent nos. 4 to 6 that same are applicable to new village sites and

not in existing Gaothan. As the name of Rules indicates the purpose is

also to regulate buildings. It is not only for extension of village on sites

recognized as such under Extension Rules. Section 176 (2) of the 1958

Act provides for making of rules under entry 44 of schedule 1 for

::: Downloaded on – 09/06/2013 17:45:34 :::
62

prescribing the principles for the extension of village sites and also for

regulation of buildings. Chapter III of 1958 Act is about administrative

powers and duties. It’s Section 45 also deals with those powers of

Panchayats. Schedule-I enlists subjects of activities including

development activities. Entry 44 reads “Extensions of village sites and

regulation of buildings in accordance with such principles as may be

prescribed.” The Extension Rules are framed under this power. It

contains no express provision which will show an intention to restrict its

applicability only to plots in layout for site selected for village extension

as per Rule 3. Here layout is sanctioned by revenue authorities and is

not in village or gaothan area of respondent no.4. Thus it is a new site

not forming part of existing village and Gram Panchayat can not

overlook requirements of Extension Rules, if it claims right to regulate

building activities therein. Otherwise one will get two types of layouts in

same village. One where no Rules restricting FSI or requiring marginal

space apply and other subject to it. It is therefore obvious that to claim

right to regulate building operations beyond existing gaothan area,

Gram Panchayat has to accept that site is subject to its jurisdiction as per

Extension Rules. Conclusions being reached little later in this judgment

will reveal that construction here is much in excess of 40% of

::: Downloaded on – 09/06/2013 17:45:34 :::
63

permissible limit prescribed by Rule 7 of Extension Rules. Respondents 4

to 6 are therefore attempting to avoid its application. They therefore

fall upon Section 52 of the 1958 Act.

(C) Section 52 of the 1958 Act has heading “control on erection

of buildings. Its sub-section 4 speaks of bye-laws also. Section 177

speaks of bye-laws. Subsection 2 clause (viii) enables bye-law for the

repair and removal of dangerous or ruinous buildings. Clause (ix) is

important and it permits bye-law to be framed for prevention of erection

of buildings without adequate provisions for ventilation or the laying out

or location of streets. This language suggesting a negative measure or

imposing a restriction itself is enough to gather that proposed building is

in crowded or congested area of village where there are no proper plots

laid out. Hence when re-erection becomes necessary , the bye-law

prohibiting it is envisaged so that at least at that stage some provision

for ventilation and public street can be insisted upon. Thus design is to

introduce at-least basic planning in old congested area of a village. No

bye-laws are pointed out to us by any of the Respondents. In any case,

it is obvious that such bye-laws can not be extended to constructions in

dispute before us. It is enough here to note that Section 52(6) of the

::: Downloaded on – 09/06/2013 17:45:34 :::
64

1958 Act expressly stipulates that nothing in Section 52 applies to

buildings erected for industrial or commercial purpose. Here.

respondent no.5 has not erected building of college or Hostels for

residential purpose. When basic purpose or design is to introduce some

discipline or possible elements of planning even in existing village, the

legislation can not be construed in a manner sacrificing the same for

sites beyond village or new sites. It will be enabling a new congested

village to come up at different place and defeat the very purpose of

enacting Section 52 or the Extension Rules. Constructions to be

sanctioned by Gram Panchayat will be either on sites subject to Section

52 or then the Extension Rules. No other type of sites are envisaged by

the 1958 Act and Rules/Bye-laws framed under it. The nature of

permissible activity i.e.,one which is not commercial or industrial will

have to be understood accordingly so as to harmonize with this design.

Definitely, a new structure of new educational institute can not be

introduced in existing Gaothan under Section 52(6) in this mode or

manner. Thus effort of respondent no.5 and respondent nos.4 and 6

to take shelter behind Section 52 is erroneous and unsustainable. Shri

De, learned counsel had argued that though in plans submitted to

respondent no.4, the structure was shown as “house”, but actual map

::: Downloaded on – 09/06/2013 17:45:34 :::
65

has shown the rooms as library,class-rooms,common room etc.

i.e.,revealing the decision to use it for college. The argument overlooks

this scheme and bar in Section 52(6) and also the fact that had

sanction been sought for college, the Gram Panchayat could not have

even touched that plan. This argument therefore exposes the collusion

between respondent no.5 and respondent no.4 to defeat the legal

provisions. Thus trust reposed in Respondents by the democracy through

the Statutes under which they are born has been betrayed. Respondent

no.5 through Dr. Rajesh Ghanshyam Bhoyar has filed undertaking on

affidavit dated 27/6/2007 with Gram Panchayat which also shows

construction of house and mentions that though layout is sanctioned, it

is not as per rules. We find law as applied in Manohar Lal vs. Ugrasen

and Ghaziabad Development Authority vs. Ugrasen (supra), by the

Hon’ble Apex Court more germane here.

(D) When Section 52 of the 1958 Act is out of picture and

contention is Extension Rules are not applicable to the layout of

respondent no.5 here, it is apparent that Gram Panchayat has exercised

powers over area or constructions not subjected to its jurisdiction. In

present matter, in any case, the policy as envisaged in communication

::: Downloaded on – 09/06/2013 17:45:34 :::
66

dated 14/10/1994 could not have been ignored by the Gram Panchayat.

Respondent nos. 4 and 6 can not contend that this communication is

not binding upon them. Contention of respondent no.5 that Municipal

Rules are only model bye-laws not even binding on “C” class municipal

council need not be considered here as these bye-laws are not being

forced upon respondent no.4 by any statute. State Government with

desire to have uniformity in such development in areas for which there

are no development plans, has asked the authorities to follow it. Validity

of this communication is not attacked before us by any of the

Respondents. Section 323 of the 1965 Act or its Sub-section (6) have

therefore no bearing on this matter. Reliance upon its appendix to

demonstrate that educational activities viz., college or hostel are allowed

thereunder in residential zone is without any merit in as much as

respondent nos. 4 to 6 are not accepting applicability of 14/10/1994

communication and building plans of respondent no.5 are not

sanctioned under the Municipal Rules. Order dated 12/10/2007 passed

by SDO, though may permit non-agricultural user for educational

purpose after inviting objections or then permission given by Collector

on 9/8/2005 to purchase by respondent no.5 of survey no. 63/1 area

1.87 H from one Siddartha Doifode, though be for educational purpose,

::: Downloaded on – 09/06/2013 17:45:34 :::
67

alleged layout therein showing various plots of not more than 150 Sq.

Mtrs. or 200 Sq. Mtrs. also have been accepted by SDO or Revenue

Authorities. Hence, after layout of such small plots came legally into

force, its commercial exploitation is ruled out. As small plots could not

have been put to such user, respondent no.5 has un-authorizedly

clubbed them together and this consolidation of said plots needed to be

justified by respondent nos. 6 and 4. It is also evident that though

Municipal Rules permit educational activities in such lay-out, while

sanctioning the proposed buildings to house the college or hostel,

feasibility thereof needs to be examined and provisions for FSI or FAR

and marginal space are to be scrupulously guarded. The sanctioning

authority in that eventuality, has to find out available infrastructure and

then match it with load of such project in that area. Small plots meant

for residence of a family can not be highhandedly allowed to be

amalgamated illegally and put to such unforeseen purpose thereby

exposing layout to a burden which it was/is never designed to shoulder.

15. It also follows from the above discussion that respondent

no.5 has not obtained sanction from competent authority at all and

respondent nos. 4 to 6 are aware of this.

::: Downloaded on – 09/06/2013 17:45:34 :::
68

(A). If Gram Panchayat has to accord sanction, as the area is

beyond its Gaothan, 40% of each plot can only be constructed. Gram

Panchayat accepts that lay-out was not sanctioned by it. It therefore can

not modify the lay-out by permitting consolidation of two or more plots

together and by clubbing their FSI/FAR. As Municipal Rules apply,

sanction for construction also has to be from authority who sanctioned

lay-out and the clubbing or consolidation must also be approved by that

authority. On 1/12/2010, this Court directed respondent no.5 to

disclose when and under whose orders plots were consolidated. By

orders dated 12/1/2011, this Court directed respondent no.4 Gram

Panchayat to file separate affidavit in relation to each structure

erected within its jurisdiction giving details of permission, provision of

law under which permission was granted and whether such permissions

are in conformity with law. Till date no orders permitting consolidation

are pointed out either by respondent no.4 or by respondent no.5. As per

Municipal Rules, 60% of plot area can be constructed and ground + two

floors are only allowed. Municipal Rules do not contemplate change or

modification in plot or clubbing/consolidation thereof at stage of

sanction to building plan. Here, respondent no.5 has not applied to

::: Downloaded on – 09/06/2013 17:45:34 :::
69

proper authority for such sanction and there is no order of

consolidation of plots. None of the respondent nos. 4 to 6 have complied

with above directions of this Court. But then, along with pursis later on

amended as submission (not supported by any affidavit), the respondent

no.5 has filed documents in purported compliance with orders of this

Court dated 1/12/2010. Those documents are about 6 structures on 4

different survey numbers viz. survey no. 63/1, 55/1, 60/2 and 56/1.

We proceed to consider the same one by one.

(B). As per it, total 6 plots i.e.,plot no. 37 to 42 in survey no. 55/1

are used to erect a single educational building or college building. Said

building is total 4 floors and “24/4/2006” is mentioned on it as date of

sanction. 6 more plots from same survey number i.e., plot nos. 31 to

36 are again used for erection of a college building as per plan cleared

on 30/4/2002. The plans shown as sanctioned do not show location of

these plots in layout on survey no. 55/1 or then part of structure as

falling on any particular plot out of 6 plots mentioned in application for

sanction. Admittedly, there is only one college building and hence,

which plot number supports the given portion thereof is not clear. It

appears that G+2 structure of college was sanctioned in 2002 itself.

::: Downloaded on – 09/06/2013 17:45:34 :::
70

Why for adding one more floor i.e.,3rd story, other 6 plots were required

to be added in 2006 is not clear from drawings. Architect drawing plans

has not given total plot area or areas and portion being left open to sky

in any of these plans. Order giving sanction to these 12 plots with layout

plan is not filed.

Apart from this, plot no. 4 in survey number 63/1 is also

shown as used for educational building. Apparently it is mentioned

twice in the list with pursis and plans/maps are also more than one.

First plan shows location of plot no. 4 also and plan is shown as

sanctioned by Gram Panchayat on 29/5/2008. It is G+2 floors. Second

plan approved on 31/12/2003 shows construction of college building on

plot nos. 1 to 3 in survey no. 63/1. In previous plan plot no. 4 is shown

on extreme south at boundary of lay-out. Plot no. 1 is at northern

boundary stretching all along its northern boundary. An internal road of

9 Mtrs. separates it from open space and plot no.2, both located

adjacent but parallel to plot 1 and on its southern side. After this open

space and plot 2, there is another 9 Mtrs. Road parallel to earlier road

and then plot no. 4 forming southern boundary. On the western side of

plot no. 1, 2 and 4 is north-south 9 Mtrs. road and beyond it i.e., at

western boundary of layout is shown plot no. 3. Thus plot 4 forms

::: Downloaded on – 09/06/2013 17:45:34 :::
71

southern boundary of layout in 63/1 while plot no. 3 constitutes its

western boundary as per this plan. Location map in relation to structure

in second plan on plot no. 1 to 3 shows plot nos. 1 to 3 spread on south-

east side of layout while plot no. 4 as farthest plot on northern side but

on north-east only in layout. After these plots 1 to 4, a south-north

road parallel to all 4 plots is shown on their western side. On the other

side of this road, 6 other plots are shown. Open space has also been

shown at north-west corner of layout with 3 Mtrs. road separating it.

Both 9 Mtrs. road shown in later location map do not figure here. Thus

entire orientation of layout undergoes a drastic change in later map

prepared by very same architect. How the placements of plots or

location of roads are changed, that too few years after raising of

structure as per plan of 2003 is not explained by anybody. No revised

order of revenue authority sanctioning such change is produced.

Survey no. 60/2 with plot nos. 39 to 44 – total 6 plots, is

shown to support hostel building. This plan is shown as sanctioned on

19/8/2006 but then there is no location map or layout plan to

understand placement inter-se of these 6 plots or the part of 4 storied

building which individually they may support.

Plan sanctioned on 27/6/2007 shows a hostel building

::: Downloaded on – 09/06/2013 17:45:35 :::
72

consisting of 4 floors. It is on 6 plots i.e.,plot nos. 12 to 17 in survey no.

56/1. Petitioners have their residential houses in same layout.

Respondent no.5 has with this building plan given a location map which

again does not show plots 12 to 17 separately. It shows a continuous

stretch of land without indicating any distinctive number and internal

divisions. Hence, here also placement inter-se of these 6 plots or the

part of 4 storied building they support can not be comprehended.

Petitioners have referred to this structure in their letter to this Court. As

per layout produced by petitioners these plots are spread across and

form part of northern boundary of layout. As per order of Tahsildar

dated 12/2/1989, total area of these 6 plots is 150 Sq. Mtrs. each X 6

plots = 900 Sq. Mtrs.

16. On the strength of these maps and details provided by

respondent no.5, Petitioners have made calculations to point out what is

40% permissible plinth area under Extension Rules and 60% under

Municipal Rules. Those details building wise can be summarized

below:–

::: Downloaded on – 09/06/2013 17:45:35 :::
73

    Building             Total area             Construction           Permissible 
    and  Survey         of  plot/s                    done.               Construction 




                                                              
    Number.              In Sq. Mtrs.            In Sq. Mtrs.          in Sq. Mtrs. 
                                                                          40%         60% 




                                                             
    1(55/1)                 1035 /                      2497               414          621.

    2(55/1)                 1020/                       2566               408          612.

    3(60/2)                 1386/                       2196               548          828.




                                               
    4(56/1)                  900/                       1822.29           336          540.
                             
    5(63/1)                 1H.6R.                     1830.76.
                            
    6(63/1)                 2 Acres.                   4178.92.    
      


      Thus,   in   first   4   buildings   above   in   survey   55/1,60/2   and     56/1, 
   



construction is much more and percentage by which it exceeds is also

exorbitant. Apart from other apparent violations already noticed,

absence of any marginal space is the main grievance about these 4

structures. Same grievance is also made about remaining 2 buildings

i.e., at number 5 and 6, but then looking to the area of plot in survey

no. 63/1, We fail to understand it. Moreover Petitioners have not given

details of permissible 40% or 60% construction area about these two

buildings. In so far as survey no. 56/1 is concerned, Petitioners are

::: Downloaded on – 09/06/2013 17:45:35 :::
74

residents of layout in it only and percentage of excess construction

varies from 500% to 400% depending upon the relevant building

legislation. As we have found that Municipal Rules are relevant,

permissible plinth area is 540 Sq. Mtrs. and structure can not be G+3.

Structure above 2nd floor is thus illegal. However if there is no marginal

space by the side of any of the structures, it is apparent that entire land

has been constructed upon and that itself will exceed 40% or 60% of the

land area i.e.,of plots concerned together. Hence, G+3 in such situation

will be 10 times to 6.5 times of the legally permitted construction. Here

we can not ignore that Petitioners have not objected to the sanction by

Gram Panchayat on the ground that sanction has to be by some other

authority. They only point out that sanction has to be as per Municipal

Rules. Perhaps their houses in layout in Survey 56/1 also have sanction

from Gram Panchayat. In reply affidavit as filed on 29/1/2008,

respondent no.5 has asserted that respondent no.4 Gram Panchayat has

followed Municipal Rules. Even by adding paragraph 11(c) to this reply

on 15/9/2008, said stand is attempted to be substantiated by relying

upon the government communication dated 14/10/1994. After realizing

the excess construction above 2nd floor, the stand is sought to be

changed by urging that there can be no estoppel against law. The

::: Downloaded on – 09/06/2013 17:45:35 :::
75

provision in Section 52 of the 1958 Act is conveniently found open to

raise defences to all types of violations and accordingly stand has been

modified with support of Zilla Parishad. But then it is indisputable that

respondent no.5 has consolidated various plots sanctioned as separate

plots in layout and raised construction upon it of either Hostel or

College buildings. The orders permitting such amalgamation of plots to

support single structure will have to be passed by modification of layout

originally sanctioned and therefore, by competent revenue authority as

per Maharashtra Land Revenue Code,1966. Those orders will also need

technical evaluation of the proposed user and existing situation on spot.

No such orders are pleaded or pointed out despite orders of this Court

either by respondent no.5 or respondent no.4. Respondent nos.1 and 2

have come up specifically with stand that said construction is illegal.

Construction effected by amalgamation or consolidation of various plots

is thus in breach of sanctioned layout plan itself. It at-once becomes

clear that there are no such orders by any authority and unauthorized

structures and use thereof by respondent no.5 is bound to exert

unforeseen pressure or load to the prejudice and annoyance of

residents.

::: Downloaded on – 09/06/2013 17:45:35 :::
76

17. We will now like to see reports by public authorities as filed

on record.

(A) This Court received the report of Collector, Wardha dated

14/12/2007. It mentions that on survey no. 56/1, area 2H.02R non-

agricultural user has been allowed by Tahsildar on 12/2/1989 and

residential user on it is on. It also points out purchase of plot nos. 12 to

17 in that layout by respondent no.5 and Gram Panchayat on

27/6/2007 has sanctioned construction of house on it. Thereafter,

respondent no.5 started construction of hostel on it. Construction is

found to be illegal and hence instructions to stop it were issued and as

jurisdiction to deal with it vests with respondent no.6 Zilla Parishad,

Chief Executive Officer was informed.

(B) Sub-divisional Officer has written to Chief Executive Officer

on 14/12/2007 in response to Zilla Parishad’s letter dated 5/12/2007

and intimated that said construction being illegal needed to be stopped.

His attention is also invited to Section 142 of the 1958 Act and powers

available to Zilla Parishad to review the sanction granted by Gram

Panchayat. He has also communicated that under Section 52 of the

::: Downloaded on – 09/06/2013 17:45:35 :::
77

1958 Act, the permission could not have been granted and though

Gram Panchayat was asked to stop that work, Gram Panchayat did not

take any steps. Hence, SDO pointed out need to take action under

Section 39 of that Act against Sarpanch and Secretary of Gram

Panchayat.

(C) Report of Block Development Officer, Panchayat Samiti,

Wardha dated 20/11/2007 mentions how these plots 12 to 17 are

purchased by respondent no.5. He also states that Dr. Rajesh Bhoyar on

2/1/2007 sought permission to construct girl’s hostel but Gram

Panchayat permitted construction of house. Sanction is stated to be

beyond rules and as no marginal space is left, construction is illegal. He

states that work is in progress and pits have been dug in 13 meters

width and 60 meters length, nature of construction is commercial on

residential plots/layout and hence, contrary to Section 52(6) of the

1958 Act. This report of BDO is in pursuance of letter of Deputy CEO

dated 1/10/2007 and complaint of Petitioners on “Lokshahi Din” i.e.,

Democracy Day. Its copy is sent by him to Collector, CEO as also Deputy

CEO of Zilla Parishad and Sarpanch/Secretary of Gram Panchayat.

::: Downloaded on – 09/06/2013 17:45:35 :::
78

(D) We also have a spot inspection report of Naib Tahsildar

regarding visit dated 17/11/2007 on record. It mentions plot nos. 12 to

17 in survey no. 56/1, digging work to erect pillars for boys and girls

hostel. Layout and plots are stated to be for residential use and

intention of respondent no.5 to put it to commercial use as hostel is

noted.

(E). Chief Executive Officer, Zilla Parishad has on 5/12/2007

noted that Shri Rajesh Bhoyar sought permission to build hostel but

Gram Panchayat permitted him to build house. It is further stated by her

that no marginal space is left and construction was illegal in the light of

Section 52(6) of the 1958 Act. It is also noted that though the Gram

Panchayat was asked to stop that work, its cognizance was not taken.

(F) Report of Block Development Officer after visit on 3/1/2008

reveals that the college of respondent no.5 viz. New Arts College is in

Nalwadi in Murarka layout. It is in survey no. 55/1 and total area of said

survey is 14320. 00 Sq. Mtrs. He has pointed out that Rajesh Bhoyar

purchased plot 31(225Sq.Mtrs), his son Dhiraj purchased plot no. 33

and 34( area-150Sq.Mtrs. each). Adjacent plots 35(area-150 Sq.Mtrs)

::: Downloaded on – 09/06/2013 17:45:35 :::
79

and 36 (area-195 Sq. Mtrs.) are purchased by Pankaj-other son of

Rajesh. Thus 6 plots in a row were purchased. Gram Panchayat gave

permission on 22/10/1999 but then the work was not started. A

consolidated house plan was then submitted by these three persons and

Gram Panchayat on 30/8/2000 gave sanction to this revised plan. No

construction was started and Principal of College submitted plan for 3

storied building which was cleared by Gram Panchayat on 30/4/2002.

Thereafter, a three storied college building was constructed in violation

of Gaothan principles. Thus in terms of Section 52(3) of the 1958 Act,

the plan had lapsed but the the revisions were allowed mechanically

without noticing either the facts seen in plan or then law. Trouble to

residents due to college students is also noted in spot inspection. Block

Development Officer has found it proper to advise complaints

i.e.,residents to approach Court.

(G). In this background, judgment reported at 2009(2) Mah.L.J.

714 (Shirdi Nagar Panchayat vs. Gordia Budget Hotel) and relied upon

by Shri De, learned Counsel, heavily needs scrutiny. From arguments

it can be gathered that it is this judgment which prompted respondent

no.5 and 6 to alter their stance and to bank upon Section 52 of the

::: Downloaded on – 09/06/2013 17:45:35 :::
80

1958 Act. There the learned Single Judge has considered Section 52 of

Bombay Village Panchayat Act, 1958, Section 340(2) of Maharashtra

Municipal Councils, Nagar Panchayat and Industrial Townships Act,

1965 and Section 43, 156 of Maharashtra Regional and Town Planning

Act, 1966. Question of formation of Municipal Council and its effect on

building permission granted by erstwhile village Panchayat has been

gone into and it is noted that respondent’s construction had commenced

within one year. Hence, in view of the order passed by the State

Government u/s 340(2) of Municipalities Act, the said building

permission granted by Shirdi Village Panchayat continued in force

within the area of Shirdi municipality, respondent was found entitled to

carry on the building construction in accordance with the said building

plan even after 10-1-1990 when municipal council came into being.

However as on 29.3.1990 notification of its intention to prepare the

development plan for Shirdi u/s 43 of Town Planning Act was published

by the Government, after 29-3-1990, the respondent is held entitled to

carry out construction only in accordance with the draft development

plan and that too only after obtaining a building permission u/s 44 and

45 of Town Planning Act. It is held that no construction could be carried

out without such permission in view of the express bar contained in

::: Downloaded on – 09/06/2013 17:45:35 :::
81

section 156 (b) of Town Planning Act. The Shirdi Village Panchayat

granted permission to respondent no.1 to construct the ground+7

storied building. Soon thereafter the construction was commenced and

till January, 1990, R.C.C. framework of the ground+2 upper floors was

completed. On 10th January, 1990, the Government of Maharashtra, by

virtue of the powers vested in it under the provisions of the Maharashtra

Municipal Councils, Nagar Panchayat and Industrial Townships Act,

1965 (for short the Municipalities Act) issued a notification declaring

that with effect from 10th January, 1990 the area within the limits of the

revenue village and gaothan of village Shirdi would be a municipal area.

Nature of construction either as commercial or otherwise allowed in

gaothan area of Shirdi or then bar under Section 52(6) of the 1958 Act

are the issues not required to be looked into in this judgment. This

judgment therefore does not lay down any law relevant for present

adjudication.

18. Consideration by us above of various reports and facts also

reveals that though illegalities came to knowledge of Chief and Deputy

CEO of Zilla Parishad, Sarpanch and Secretary of Gram Panchayat, the

::: Downloaded on – 09/06/2013 17:45:35 :::
82

same were overlooked and illegalities were allowed or tolerated by

permitting respondent no.5 to complete the structures without stopping

the construction activity. Can such Respondents or the even respondent

no.5 be heard raising objection about availability of alternate remedy

under Section 142 of the 1958 Act ? Answer obviously is “No”. As

according to respondent nos. 4 to 6, Municipal Rules do not apply and

sanction is not sought or granted under the same, reliance thereupon to

urge that educational activities are permitted thereunder in residential

area, is misconceived. In any case, in that eventuality, respondent no.5

has to explain how its construction of G+3 and in excess of 60% of the

plot area (FSI) can be viewed as legal even under it. When the

constructions are contrary to both the laws i.e.,Extension Rules or then

Municipal Rules, the effort of respondent no.5 to justify it has to fail.

Not only this as it is in excess of permissible FSI under any of these

Rules and also breach the marginal space requirement, the same are not

entirely compoundable and can not be regularized. Section 52(6) of the

1958 Act renders all sanctions given by Gram Panchayat bad. Thus

having raised structures contrary to law highhandedly and due to

influence, respondent no.5 can not raise defenses like acquiescence or

estoppel against the Petitioners. The spot visit by various authorities

::: Downloaded on – 09/06/2013 17:45:35 :::
83

may be without previous notice to or behind the back of respondent

no.5, still respondent no.5 has failed to bring on record anything to

show even possibility of prejudice to it because of the same. Petitioners

may have purchased their plots/houses even after the completion of

impugned constructions and were already put to use, still they have

every right to make all efforts to restore the legal user in the layout.

Even an individual has that locus and grievance of respondent no.5 that

only handful of residents are making it or majority is not supporting

their cause, is unsustainable. Endeavor of respondent no.5 to

demonstrate that these structures are being used for providing free

education and free residential facilities to backward class students also

does not render them legal. If such arguments are accepted, influential

organizations like respondent no.5 will buy lands ,develop and use it as

per their wish and succeed in forcing that user upon law and society.

Respondent no.5 in such situation can not contend that its structures are

old and hence, cognizance of grievance against it can not be taken in

PIL or then at the instance of Petitioners who also may have raised

excess constructions. Respondent nos. 4 and 6 are legally duty bound to

take action in respect of such violations by Petitioners but then that does

not stop this Court from taking suitable steps against respondent no.5.

::: Downloaded on – 09/06/2013 17:45:35 :::
84

Contention that Petitioners have made grievance about other structures

after one year of cognizance of petition as PIL by this Court, is therefore

erroneous and no law stops this Court from acting in such matters

where there is manifest abuse of position. There is no question of

amendment resulting in any back door introduction of any cause in PIL

after this Court allowed that amendment. By allowing that amendment

on 9/6/2008, this Court has accepted that grievance also as PIL.

Moreover, here the Hon’ble Chief Justice has after perusal of grievance

as contained in letter dated 8/10/2007 written by the Petitioners found

it necessary to take cognizance as PIL. The Senior/Administrative Judge

at Nagpur had in the meanwhile independently called for report from

Collector, Wardha and notice to Respondents in the matter has been

ordered only after perusal of that report. Thus, after prima-facie

satisfaction only report was called and Senior Judge of this Court while

taking up the matter on judicial side ,has passed these orders issuing

notice. Hence, contention that Senior administrative judge at Nagpur

did not apply mind or Hon’ble The Chief Justice at Bombay could not

have passed orders taking cognizance are all unwarranted in present

facts. It is also explicit that relevant investigation was then carried out

and thereafter only the cognizance to the prejudice of respondent no.5

::: Downloaded on – 09/06/2013 17:45:35 :::
85

was taken, that too by asking it to show cause. The contention that

credentials of the Petitioners were not ascertained at thresh-hold is

therefore equally erroneous. The arguments about the genesis of

litigation viz. whether the Petitioners behaved wrongfully with students

or then the students first filed police complaint against the petitioner

no.1 and as a protection from police, Petitioners made grievances about

structures of respondent no.5 by way of afterthought are all irrelevant

and must yield to law and public convenience.

19. With these findings other objections ,again technical in

nature raised by respondent no.5 need brief consideration. It is not the

case of respondent no.5 that students or activities of other two

institutions located in the vicinity are also causing or may cause similar

nuisance to Petitioners. If they wanted to bring on record their

victimization at the instance of such other institutes, they ought to have

placed requisite details giving the distance and location etc. to show

ulterior motive impelling the Petitioners. However, overall consideration

of the matter gives us an impression that respondent no.5 is attempting

to raise all possible defenses in roving attitude to save its face. Person to

whom the lands belonged or then who applied to Gram Panchayat for

::: Downloaded on – 09/06/2013 17:45:35 :::
86

sanction and in whose name plan was approved are not very relevant in

this background. Petitioners reside in same survey number in which the

last Hostel is constructed by respondent no.5. Hence and looking to the

grievance made non-compliance with Order VII Rule 7 CPC is not fatal

at-least in this matter.

20. Reliefs prayed for in PIL are thus granted in following terms.

The respondent no.6 Zilla Parishad, respondent no.4 Gram Panchayat as

also respondent no.3 Collector, Wardha and respondent no.3 Sub-

Divisional Officer to forthwith initiate steps for removal of illegal

structures raised by respondent no.5 in accordance with law. During

pendency of such action and time taken for its completion, said

respondents are free to put seal on Hostel building erected on plot nos.

12 to 17 in layout in survey no. 56/1 of Mouza Nalwadi forthwith.

In addition, We also direct Divisional Commissioner, Nagpur

Division to :-

(1)To hold or to arrange to hold enquiry against Shri V.M.

Jadhao, Deputy C.E.O./Shri Manusmare and the then chief

Executive Officer/s of Zilla Parishad who have sworn affidavits

filed before this Court.

::: Downloaded on – 09/06/2013 17:45:35 :::
87

(2)To find out concerned Zilla Parishad CEO, Councilor or

Panchayat members, Gram Panchayat Members, Sarpanch,

Secretary and employees, and also why they did not detect or

report or act against the unauthorized structures coming up at

Nalwadi.

(3)To find out concerned Revenue Officers and employees like

Collector, Sub-divisional Officers, Tahsildar’s, Talathi’s,

Patwari’s etc. and as to why they did not detect or report the

unauthorized structures coming up at Nalwadi.

(4)To initiate steps to prohibit repetition of such illegalities in

area.

(5)To initiate or then arrange to initiate appropriate legal action

against other illegal structures which may have come up or

coming up in the area.

(6)To submit list of all such elected representatives and Officer

bearers, Officers, Employees of all these Bodies, Authorities

found prima-facie involved to this Court with nature of action

–disciplinary as also for disqualification, proposed to be

undertaken against them. Deaths, Terminations or

Retirements in the meanwhile, if any or expiry of period of 4

::: Downloaded on – 09/06/2013 17:45:35 :::
88

years thereafter shall not be the ground for excluding any

name from such list.

(7)Office of Divisional Commissioner, Nagpur to complete

necessary preliminary investigation within 3 months and

report to be filed with Registrar(J) of this Court at Nagpur by

7/12/2011. Copy of said report be sent to Petitioner 1 and 2

by Registered Post A/D and affidavits be filed by respondent

no.1 accordingly by 15/12/2011. If report is not filed by

07/12/2011, Registrar(J) to list matter for appropriate

cognizance. Petitioners can also approach if they do not receive

the preliminary report by 15/12/2011.

(8)State Government, Divisional Commissioner and Collector,

Wardha are made responsible for compliance with these

directions.

(9)As State Government as also Divisional Commissioner are not

party Respondents, Petitioners to bring this order to their

knowledge by serving it personally and by Registered post

acknowledgment due.

(10)Applications for extension of time to comply, if any, shall be

accompanied by the steps taken to show the vigilance and

::: Downloaded on – 09/06/2013 17:45:35 :::
89

diligence in responsibility fastened.

(11) State Government through its Rural Development

Department to bring this order to the notice of all Gram

Panchayat Members/Secretaries.

21. We accordingly allow the Public Interest Litigation with costs

of Rs. 10,000/- payable to Petitioners and Rs. 10,000/ – to Offices of

respondent no.1 to 3 by respondent no.5. Similarly respondent no.4 and

6 shall also pay Rs. 5000/- respectively as costs to all Petitioners.

                 JUDGE                                                 JUDGE
   



    Dragon



     






                                                        ::: Downloaded on - 09/06/2013 17:45:35 :::
 

Prakash vs Dinesh on 20 September, 2011

Bombay High Court
Prakash vs Dinesh on 20 September, 2011
Bench: U.V. Bakre
     HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR
     /home/lichade/judgments/UVB/apea444.11.odt                                                             1/5


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




                                                                                                 
                CRIMINAL APPLICATION (APPA) NO. 511 OF 2011
                                                         IN




                                                                       
                            CRIMINAL APPEAL NO. 444 OF 2011



                Prakash s/o Budha Balbudhe




                                                                      
                aged about 40 yrs., Occp. Agriculturist,
                r/o Somalpur, Tah. Arjuni (Morgaon),
                District - Gondia.                                ::          APPELLANT




                                                      
                        -: Versus :-
                            
                Dinesh s/o Baburao Madavi,
                aged 50 yrs., r/o Plot No.11-A,
                           
                Utkarsha Bungalow, Tilak Nagar,
                Near Office of Additional Commissioner,
                Adiwasi Mahamandal, Nagpur,
                Police Station, Ambazari,
      

                Nagpur.                                   ::                  RESPONDENT
                 ......................................................................................
   



                              Mr. Anup Dhore, Advocate for the applicant.
             Mr. R. M. Pande, Adv. H/f Mr. S. P. Bhandarkar, Adv. for respondent.
          ...................................................................................................





                                                           CORAM: U. V. BAKRE, J.

DATED : 20TH SEPT., 2011

J U D G ME N T

Heard.

2. This is an application for grant of leave to file appeal against

order dated 7/6/2011 passed by the learned Judicial Magistrate, First

Class, Arjuni (Morgaon) in Misc. Criminal Case No. 547 of 2007,

::: Downloaded on – 09/06/2013 17:45:17 :::
HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR
/home/lichade/judgments/UVB/apea444.11.odt 2/5

whereby the complaint filed by the applicant-appellant under Section

138 of the Negotiable Instruments Act came to be dismissed under

Section 256 of the Code of Criminal Procedure on account of absence of

the complainant and his Advocate and for not taking steps for a long

time for securing the presence of the accused.

3. Perused the copy of the complaint and the impugned order.

4. The impugned order, as argued by the learned Advocate for

the applicant, is not on merit but is an order of dismissal for default.

5. Considering that this is a technical dismissal under Section

256 Cri.P.C., leave to file appeal against the impugned order is granted.

Appeal be registered and numbered, accordingly.

6. Admit.

7. Mr. R. M. Pande, learned Advocate waives service of notice

for sole respondent, after admission.

8. With the consent of learned Counsel for the parties, the

appeal is taken up for final hearing.

9. It is seen that the complaint under Sections 138 and 142 of

the Negotiable Instruments Act was filed by the complainant in respect

of the cheque of an amount of Rs.3,20,000/-. Process was issued by the

learned Judicial Magistrate, First Class. The respondent had initially

::: Downloaded on – 09/06/2013 17:45:17 :::
HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR
/home/lichade/judgments/UVB/apea444.11.odt 3/5

appeared and had furnished the bail. However, it appears that the

respondent-accused subsequently started remaining absent and as per

the request of the appellant, initially bailable warrant was issued and

thereafter, the appellant had applied for issuing Non Bailable Warrant

against the accused. It is further seen that the appellant had paid the

process fee for issuance of Non Bailable Warrant but, since the report of

the concerned police station regarding service/non service of the

bailable warrant was not received by the Court, Non Bailable Warrant

was not issued. Subsequently, the complain t was transferred from

regular Court to the morning Court at Arjuni (Morgaon) and on

7/6/2011, since the complainant and his Advocate was absent when

the matter was called out, the complaint was dismissed.

10. The learned Counsel for the complainant showed his

bonafides by appearing before the said learned J.M.F.C. on the day of

dismissal itself and praying for setting aside the said order of dismissal.

There is no provision for the learned J.M.F.C. to set aside its own order

of dismissal.

11. Shri Dhore, learned Advocate for the appellant has placed

reliance upon the ruling in the case of Murlidhar s/o Harkisandas

Manwani Vs. Shri Sharangdhar s/o Ramlal Lohar reported in 2011

::: Downloaded on – 09/06/2013 17:45:17 :::
HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR
/home/lichade/judgments/UVB/apea444.11.odt 4/5

ALL MR (Cri) 2198, which is based on similar situation. In the case

supra, the learned Single Judge of Aurangabad Bench of this Court has

held that principles of natural justice require that an opportunity be

given to the complainant to prosecute the complaint on its own merits,

however, by simultaneously compensating the accused due to

inconvenience caused to him, by awarding reasonable costs. Learned

Advocate Shri Dhore has also relied upon a decision of the same learned

Single Judge of Aurangabad Bench of this Court in the case of Shri

Pratap s/o Gopaldas Talreja Vs. Shri Bhagwandas s/o Jehumal Matani

reported in 2011 ALL MR (Cri) 2192, wherein also it has been held

that the principles of natural justice require that opportunity be given to

the complainant to prosecute the complaint on its own merits as well as

opportunity needs to be given to the accused also to contest the

complaint on merit. In the case supra also, the same was done by

awarding the costs to the accused.

12. Considering the fact that there was actually no absence of

the learned Counsel for the complainant on 7/6/2011, but there was

delay in appearance, I am of the view that the principles of natural

justice require that opportunity be given to the complainant to fight out

his case on merits. No prejudice would be caused to the respondent-

::: Downloaded on – 09/06/2013 17:45:17 :::

HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR
/home/lichade/judgments/UVB/apea444.11.odt 5/5

accused. No doubt, inconvenience has been caused which can be made

good by awarding the costs.

13. In the result, the present appeal is allowed. The impugned

order dated 7/6/2011 is quashed and set aside. The matter is remitted

back to the trial Magistrate. Parties to appear before the trial Magistrate

on 5/10/2011, in the morning session. The trial Magistrate shall decide

the matter on its own merits, afresh.

14.

The appellant shall pay Rs.2,500/- (Rupees two thousand

five hundred only) as costs to the respondent to be deposited before the

trial Court, which shall be a condition precedent to be complied with on

or before 5/10/2011.

14. The application as well as appeal stand disposed of

accordingly.

JUDGE

wwl

::: Downloaded on – 09/06/2013 17:45:17 :::

Prakash vs Dinesh on 20 September, 2011

Bombay High Court
Prakash vs Dinesh on 20 September, 2011
Bench: U.V. Bakre
     HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR
     /home/lichade/judgments/UVB/apea444.11.odt                                                             1/5


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




                                                                                                 
                CRIMINAL APPLICATION (APPA) NO. 511 OF 2011
                                                         IN




                                                                       
                            CRIMINAL APPEAL NO. 444 OF 2011



                Prakash s/o Budha Balbudhe




                                                                      
                aged about 40 yrs., Occp. Agriculturist,
                r/o Somalpur, Tah. Arjuni (Morgaon),
                District - Gondia.                                ::          APPELLANT




                                                      
                        -: Versus :-
                            
                Dinesh s/o Baburao Madavi,
                aged 50 yrs., r/o Plot No.11-A,
                           
                Utkarsha Bungalow, Tilak Nagar,
                Near Office of Additional Commissioner,
                Adiwasi Mahamandal, Nagpur,
                Police Station, Ambazari,
      

                Nagpur.                                   ::                  RESPONDENT
                 ......................................................................................
   



                              Mr. Anup Dhore, Advocate for the applicant.
             Mr. R. M. Pande, Adv. H/f Mr. S. P. Bhandarkar, Adv. for respondent.
          ...................................................................................................





                                                           CORAM: U. V. BAKRE, J.

DATED : 20TH SEPT., 2011

J U D G ME N T

Heard.

2. This is an application for grant of leave to file appeal against

order dated 7/6/2011 passed by the learned Judicial Magistrate, First

Class, Arjuni (Morgaon) in Misc. Criminal Case No. 547 of 2007,

::: Downloaded on – 09/06/2013 17:45:15 :::
HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR
/home/lichade/judgments/UVB/apea444.11.odt 2/5

whereby the complaint filed by the applicant-appellant under Section

138 of the Negotiable Instruments Act came to be dismissed under

Section 256 of the Code of Criminal Procedure on account of absence of

the complainant and his Advocate and for not taking steps for a long

time for securing the presence of the accused.

3. Perused the copy of the complaint and the impugned order.

4. The impugned order, as argued by the learned Advocate for

the applicant, is not on merit but is an order of dismissal for default.

5. Considering that this is a technical dismissal under Section

256 Cri.P.C., leave to file appeal against the impugned order is granted.

Appeal be registered and numbered, accordingly.

6. Admit.

7. Mr. R. M. Pande, learned Advocate waives service of notice

for sole respondent, after admission.

8. With the consent of learned Counsel for the parties, the

appeal is taken up for final hearing.

9. It is seen that the complaint under Sections 138 and 142 of

the Negotiable Instruments Act was filed by the complainant in respect

of the cheque of an amount of Rs.3,20,000/-. Process was issued by the

learned Judicial Magistrate, First Class. The respondent had initially

::: Downloaded on – 09/06/2013 17:45:15 :::
HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR
/home/lichade/judgments/UVB/apea444.11.odt 3/5

appeared and had furnished the bail. However, it appears that the

respondent-accused subsequently started remaining absent and as per

the request of the appellant, initially bailable warrant was issued and

thereafter, the appellant had applied for issuing Non Bailable Warrant

against the accused. It is further seen that the appellant had paid the

process fee for issuance of Non Bailable Warrant but, since the report of

the concerned police station regarding service/non service of the

bailable warrant was not received by the Court, Non Bailable Warrant

was not issued. Subsequently, the complain t was transferred from

regular Court to the morning Court at Arjuni (Morgaon) and on

7/6/2011, since the complainant and his Advocate was absent when

the matter was called out, the complaint was dismissed.

10. The learned Counsel for the complainant showed his

bonafides by appearing before the said learned J.M.F.C. on the day of

dismissal itself and praying for setting aside the said order of dismissal.

There is no provision for the learned J.M.F.C. to set aside its own order

of dismissal.

11. Shri Dhore, learned Advocate for the appellant has placed

reliance upon the ruling in the case of Murlidhar s/o Harkisandas

Manwani Vs. Shri Sharangdhar s/o Ramlal Lohar reported in 2011

::: Downloaded on – 09/06/2013 17:45:15 :::
HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR
/home/lichade/judgments/UVB/apea444.11.odt 4/5

ALL MR (Cri) 2198, which is based on similar situation. In the case

supra, the learned Single Judge of Aurangabad Bench of this Court has

held that principles of natural justice require that an opportunity be

given to the complainant to prosecute the complaint on its own merits,

however, by simultaneously compensating the accused due to

inconvenience caused to him, by awarding reasonable costs. Learned

Advocate Shri Dhore has also relied upon a decision of the same learned

Single Judge of Aurangabad Bench of this Court in the case of Shri

Pratap s/o Gopaldas Talreja Vs. Shri Bhagwandas s/o Jehumal Matani

reported in 2011 ALL MR (Cri) 2192, wherein also it has been held

that the principles of natural justice require that opportunity be given to

the complainant to prosecute the complaint on its own merits as well as

opportunity needs to be given to the accused also to contest the

complaint on merit. In the case supra also, the same was done by

awarding the costs to the accused.

12. Considering the fact that there was actually no absence of

the learned Counsel for the complainant on 7/6/2011, but there was

delay in appearance, I am of the view that the principles of natural

justice require that opportunity be given to the complainant to fight out

his case on merits. No prejudice would be caused to the respondent-

::: Downloaded on – 09/06/2013 17:45:15 :::

HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR
/home/lichade/judgments/UVB/apea444.11.odt 5/5

accused. No doubt, inconvenience has been caused which can be made

good by awarding the costs.

13. In the result, the present appeal is allowed. The impugned

order dated 7/6/2011 is quashed and set aside. The matter is remitted

back to the trial Magistrate. Parties to appear before the trial Magistrate

on 5/10/2011, in the morning session. The trial Magistrate shall decide

the matter on its own merits, afresh.

14.

The appellant shall pay Rs.2,500/- (Rupees two thousand

five hundred only) as costs to the respondent to be deposited before the

trial Court, which shall be a condition precedent to be complied with on

or before 5/10/2011.

14. The application as well as appeal stand disposed of

accordingly.

JUDGE

wwl

::: Downloaded on – 09/06/2013 17:45:15 :::

Motilal Nagar-1 vs State Of Maharashtra on 16 September, 2011

Bombay High Court
Motilal Nagar-1 vs State Of Maharashtra on 16 September, 2011
Bench: A.M. Khanwilkar, Mridula Bhatkar
                                            1                            191909




                                                                        
         IN THE HIGH COURT OF JUDICTURE AT BOMBAY
             ORDINARY ORIGINAL CIVIL JURISDICITON




                                                
                 WRIT PETITION NO.1919 OF 2009

        Vibgyor High School,
        through its Principal, situate at




                                               
        Motilal Nagar-1, Srirang Sabde
        Marg, Goregaon (W),                       ... Petitioner
        Mumbai 400 104




                                    
                    V/s.



        through
                      
     1. State of Maharashtra,
                      the      Secretary,
        Department of Education and
                     
        Employment,          Mantralaya
        Annexe, Mumbai 400 032
     2. V.K. Wankhede
        Deputy Director of Education,
      


        Mumbai Division, Greater
        Mumbai, Jawahar Bhavan,
   



        Churni Road, Mumbai 400 007
     3. Avisha Gopalkrishnan,
        residing at Shree, 158,
        Jain Jainalaya Road, Bangur





        Nagar, Goregaon (W),
        Mumbai 400 090
     4. Prashant Basrur,
        residing at C-58, Tarapore





        Garden, New Link Road,
        Andheri (W), Mumbai 400 053
     5. Sanjita Prasad,
        residing at 703, Samarkhand,
        Prathamesh Complex,
        Andheri (W), Mumbai 400 053




                                                ::: Downloaded on - 09/06/2013 17:44:45 :::
                                         2                              191909


     6. Vishal Ruia,




                                                                      
        1302, Orchid, Vasant Valley,
        Malad (West), Mumbai 400 097




                                              
     7. Balchandran Unni,
        801, Serenity Complex,
        Off Link Road, Oshiwara,
        Mumbai 400 053                      .... Respondents




                                             
                                  WITH




                                  
                   WRIT PETITION NO.1925 OF 2009
                       
        Rustom Kerawalla Foundation
        a Public Charitable Trust
        registered under the Bombay
                      
        Public Trust Act, 1950 having
        its address at Kerawalla
        Chambers, Apollo Bunder,
        Opposite Radio Club, Colaba,
      

        Mumbai 400 001                            ... Petitioner
   



                Versus


     1. State of Maharashtra,





        through    the     Secretary,
        Department of Education and
        Employment,       Mantralaya
        Annexe, Mumbai 400 032
     2. Vithoba K. Wankhede





        Deputy Director of Education,
        Mumbai Division, Greater
        Mumbai, Jawahar Bhavan,
        Churni Road, Mumbai 400 007




                                              ::: Downloaded on - 09/06/2013 17:44:45 :::
                                          3                              191909


     3. Avisha Gopalkrishnan,




                                                                       
          of Mumbai Indian Inhabitant,
          residing at Shree, 158,




                                               
          Jain Jainalaya Road, Bangur
          Nagar, Goregaon (W),
          Mumbai 400 090
     4.   Prashant Basrur,




                                              
          of Mumbai Indian Inhabitant,
          residing at C-58, Tarapore
          Garden, New Link Road,
          Andheri(W), Mumbai 400 053




                                   
     5.   Sanjita Prasad,
          of Mumbai Indian Inhabitant,
                      
          residing at 703, Samarkhand,
          Prathamesh Complex,
          Andheri(W), Mumbai 400 053
                     
     6.   Vishal Ruia,
          of Mumbai Indian Inhabitant,
          1302, Orchid, Vasant Valley,
          Malad(West), Mumbai 400
      

          097
     7.   Balchandran Unni,
   



          of Mumbai Indian Inhabitant,
          801, Serenity Complex,
          Off Link Road, Oshiwara,
          Mumbai 400 053





                                              ...Respondents

     Mr. Aspi Chinoy, Senior Advocate, with Mr.Janak Dwarkadas,
     Sr.Advocate, Mr. Sanjay Jain, Mr. Ishwar Nankani and Mr. Huzefa
     Khokhawala i/by M/s. Nankani & Associates for the Petitioner in Writ





     Petition No. 1919 of 2009

     Mr. Navroz Seervai, Senior Advocate, with Mr. Prateek Seksaria i/by
     M/s. L.J. Law for the Petitioner in Writ Petition No. 1925 of 2009

     Ms. I.K. Calcuttawala, A.G.P., for Respondents No. 1 and 2

     Captain B.K. Subbarao for Respondent No. 3 in Writ Petition No. 1919
     of 2009




                                               ::: Downloaded on - 09/06/2013 17:44:45 :::
                                          4                               191909




                                                                        
     Respondent No. 3 Writ Petition No. 1925 of 2009, present




                                                
     Mr. Darius B. Shroff, Senior Advocate, with Mr. Sagar Talekar for
     Respondents No. 4 to 7 in Writ Petition No. 1919 of 2009


                            CORAM : A.M. KHANWILKAR AND




                                               
                                    MRS. MRIDULA BHATKAR, JJ.

                            DATE : 16th September, 2011.




                                    
                      
     JUDGMENT (Per A.M. Khanwilkar, J.):-
                     
     1.          This common judgment will dispose of both the petitions

     together, as common questions arise for consideration therein. The
      


     former petition is filed by Vibgyor High School. The second petition is
   



     filed by Rustom Kerawalla Foundation for the same reliefs.





     2.          By the former petition, viz., Writ Petition No.1919 of

     2009, under Article 226 of the Constitution of India, the petitioner-





     school, which claims to be a minority private unaided school engaged

     in running a primary and secondary school under affiliation from

     Council for Indian Certificate of Secondary Examination (ICSE),

     International General Certificate of Secondary Education, University of

     Cambridge, U.K. (IGCSE) and offering National Institute of Open




                                                ::: Downloaded on - 09/06/2013 17:44:45 :::
                                          5                                191909


     Schooling (NIOS) Curriculum, has taken exception to the orders passed




                                                                         
     by the Deputy Director of Education, respondent No. 2, dated 3rd July,




                                                 
     2009 and 4th September, 2009. Further, the petitioner-school prays for

     consequential relief of restraining respondents No. 1 and 2 by




                                                
     themselves and/or through their servants, officers, agents or

     subordinates from interfering with or preventing the implementation of




                                    
     the petitioner's circulars, which stipulate the school fees payable by
                      
     students of the ICSE Primary and Secondary Divisions of the

     petitioner-school in respect of academic year 2009-10.
                     
     3.          By the impugned decision, respondent No. 2 disallowed
      


     the expenses incurred by the petitioner-school towards school building
   



     rent in the sum of Rs.2.50 crores per annum. The amount towards

     other expenses claimed by the petitioner-school, however, was





     accepted by respondent No. 2 as usual expenditure to entitle the

     petitioner-school to claim as part of the fee amount from its students.





     On that finding, respondent No. 2 approved the fees prescribed by the

     petitioner-school to the extent of Rs. 54,598/- for Primary Section and

     Rs.61,149/- for Secondary Section from the year 2008-09.




                                                 ::: Downloaded on - 09/06/2013 17:44:45 :::
                                             6                                191909


     4.                  By the second petition, viz., Writ Petition No.1925




                                                                            
     of 2009, under Article 226 of the Constitution of India, the petitioner -




                                                    
     a public charitable trust - prays for similar reliefs as in the former

     petition.




                                                   
     5.           The broad relevant facts leading to the filing of the




                                       
     present petitions, including the events unfolded during the pendency of
                        
     these petitions, for examining the challenge to the impugned decision

     of respondent No. 2 referred to above are as follows:-
                       
     6.           Respondents No. 3 to 7, along with other parents of
      


     petitioner-school, vide letter dated 19th July, 2007 complained to the
   



     Education Minister of the State about the unlawful Parents Teachers

     Association elections and other issues regarding the maladministration





     in the school. The said communication reads thus:-

                                        "From: Aggrieved parents of Vibgyor High
                                         Motilal Nagar, Goregaon (W), Mumbai





                  19/7/2007

                  To:    Shri Vasant Purkeji,
                         Education Minister,
                         Maharashtra State

                  Respected Shri Purke Saheb,

                         Sub: Unlawful PTA elections and other issues




                                                    ::: Downloaded on - 09/06/2013 17:44:45 :::
                                  7                                 191909




                                                                  
      Vibgyor High (Trustee, R. Kerawalla) used to be Billabong
      High until Aug 2006 - which was under a franchisee
      agreement with Lina Asher - of KKEL (Kangaroo Kids




                                          
      Education Ltd., who owns and operates the brand-Billabong
      High) went thru a very messy public fallout and the two
      separated.

      Most parents chose to stay with the current school - even




                                         
      though KKEL was a better brand name, since the
      infrastructure belonged to this school and on meeting with
      the trustee - most were convinced that this school could go
      onto become one of the best schools in Mumbai. Parents
      helped the school ride thru court cases and even filed




                            
      interventions on behalf of the school to ensure stability.
           
      Until end of 2005 - due to the internal bickering between
      the two partners, and their staffs - the school also did not
      have a head, no principal lasted more than 3-4 months.
      Many of these exits were attributed to Ms. Kavita Sahay -
          
      who has now been appointed ED of the school. Ms. Sahay,
      like our current principal, was apparently sacked from two
      previous schools - is the extra constitutional authority that
      runs this school. Mr. Shim Mathews, the current principal,
      was also sacked from his old school Ryan International....
      


      In spite of all this, the school's biggest strength, that of
   



      being one of the most child friendly and of allowing 'open
      door' to parents - was followed, all of last year. The PTA
      elections for the year 2006-07 were extremely well
      organised and completely transparent. On hindsight, that
      was due to the school's need to have a strong and well





      networked body of parents to stymie the fears and
      apprehensions of doubting parents on the issue of
      curriculum (till that point in time, curriculum was being
      provided by KKEL and was considered to be one of the
      biggest selling points for the school).





      However, to the dismay of the trustee, and the rest of the
      school management, the PTA consistently took up issues of
      quality, safety and security, teacher qualification and
      training, age appropriateness of curriculum and quality of
      curriculum provided (as they were not following any text
      books in the junior classes, it was most critical that the
      people responsible for developing the curriculum were
      qualified and able to deliver the same).




                                          ::: Downloaded on - 09/06/2013 17:44:45 :::
                                  8                                  191909




                                                                   
      It was pointed out to the school management repeatedly that

      1. Curriculum was faulty, sub-standard and at times even




                                           
      absurd.

      2. People responsible for this sub-standard curriculum were
      not qualified and just did not comprehend either the needs of
      the students or the eventual objective of tying in with the




                                          
      boards requirement.

      3. Teacher selection and Training were still murky as good
      quality teachers kept leaving school and were being replaced
      by whatever available.




                            
      4. Discipline was very loosely enforced and children of
           
      celebrity or favoured parents got away with everything. In
      fact, there have been instances of the teachers being pulled
      up for trying to discipline such students.
          
      5. Safety issues not addressed at all. The common area for
      emergencies like fire etc., has been grilled and locked.
      There is no fire escape, and the staircase is not broad enough
      for 2000 students in an emergency situation. A hoarding site
      has been erected on the basketball court and the iron girders
      


      are right behind the hoop (basket) can lead to a very severe
      injury.
   



      A student came under the wheels of his own school bus and
      was badly injured. The parent was not allowed to meet the
      principal or the trustee till the PTA insisted and organised a
      meeting.





      6. The savings from not having to pay franchisee fees should
      have revered back to the parents (about 12-15%). The
      original fee structure was inclusive of a premium paid for
      the KKEL and Billabong brand. The school has coolly
      pocketed the savings.





      7. Even after these savings, the school has been trying to
      further increase the fees, which the earlier PTA had
      successfully ensured that the school did not push through.

      Due to this constant monitoring of the PTA, the school was
      made accountable for lapses of omission and commission.
      Apparently, this was not acceptable.




                                           ::: Downloaded on - 09/06/2013 17:44:45 :::
                                   9                                 191909


      Out of the blue the PTA elections for the year 2007-08, were




                                                                   
      announced this week without any consultation with the
      earlier PTA.




                                           
      Monday evening (9th July'07) - circular comes out -
      Tuesday and Wednesday - (both working days) given for
      filing nominations, and elections scheduled for Friday
      evening (13th July'07)-




                                          
      There was No announcement of names of candidates and no
      interaction permitted between parents to know the new
      candidates. The biggest mockery of this whole process was
      that the "so called ballot papers" were sent home with
      children on Thursday evening - with strict instructions given




                             
      to children that all of them were to bring back forms duly
      completed the next morning...
           
      Only problem is that these were blank sheets of paper with a
      small table with just names of nominees, no name of parent
      required - no sealed envelopes, just a small 'tick' mark
          
      needed in front of one of the names ... (find copy attached)

      Further more - Friday when parents showed up for the
      elections - these 'votes' that were collected by the school in
      the morning were not reflected in the lists that the 'elections
      


      officers' were holding in the evening! On questioning the
      officers claimed that they knew exactly which parent had
   



      sent their votes in the morning and there was no chance of
      duplication, needless to say many parents happily voted
      twice for their candidates...

      To further this travesty of 'electing' 'the post of CR i.e.





      class representatives was dropped - so a PTA that should
      have comprised of about 80 parents or so - was shaved
      down to 12 in one clean shot. Obviously no parent can hope
      to look after the interest of 200-250 parents (depending upon
      number of divisions per grade) so the post that does now
      exist i.e. GR or grade representative is pretty much





      toothless.

      Finally all the candidates that won, except for the grade V
      candidate, were those who had been asked to file
      nominations by the school with a clear commitment that if
      they stood they would win. These are parents whom the
      school is sure will meekly listen to them do exactly as the
      school would want them to do. In fact two of the nominated
      grade reps have taken signatures from their classes and are
      challenging their loss - since their parents have given them




                                           ::: Downloaded on - 09/06/2013 17:44:45 :::
                                             10                                  191909


                  in writing that most of them voted in their favour - it would




                                                                               
                  be interesting to see the outcome of this challenge...

                  The obvious reason for this kind of blatant manipulation is




                                                       
                  that the school needs to have a dummy PTA in place so that
                  - The school can function just as they want without any
                      interference or monitoring from the parents.
                  - The school can get away with all dubious activities and
                      not allow anybody to question them upfront.




                                                      
                  - Invariably, the school would now take this opportunity
                      to successfully push the 'fee hike' which they have been
                      trying since the last 2 years now.
                  - The fee hike they know that the current body of parents
                      would have never approved.... for the simple reason that




                                        
                      the quality delivered today is way below the standard
                      even for the current level of fees that they are charging.
                       
                  Sir, herewith we would like to request to look into the
                  matter and set up a proper enquiry regarding all the issues
                  mentioned above for the sake of future of our children. We
                      
                  are sure, Education ministry will not allow any Education
                  institution to run as a business, profit center.

                  Thanking you,
      


                  Yours truly,
   



                      Sd/-

                  On behalf of Aggrieved parents

                  Contact persons:       Prashant 9820073692 Bala: 9819137575





                                         Avisha 9821524455 "
                                                           (Emphasis supplied)





     7.             The said representation was pending on the file of the

     appropriate Authority.       Notwithstanding that, the petitioner-school

     proceeded to issue circular on 19th March, 2008, increasing school fees

     as prescribed therein.




                                                       ::: Downloaded on - 09/06/2013 17:44:46 :::
                                       11                                  191909


     The said circular issued by the school reads thus:-




                                                                         
                                                "VH/CIR/FEES/0708/240
                                                       March 19, 2008.




                                                 
     Dear Parents,

     This is to inform you that the Fees for the 1st Quarter of the new




                                                
     academic year 2008-09 have to be paid between 1st April (Monday)
     2008 to 15th April (Tuesday) 2008 for confirmation of
     seat/continuity. Fee receipt book will be sent with students on or
     before 31st March 2008.




                                   
     1. Fee Amount : Please refer to the enclosed Fee Structure
        details.
                  
     2. Mode of Payment : By cheque or DD only (Please note
        that payment by cash will not be accepted.
                 
     3. Please draw a cross Cheque/DD in favour of :
     VIBGYOR High - Pre Primary (for Nursery, Jr.KG, Sr.K.G.)
     VIBGYOR High - Primary (for Grade I to IV, all courses)
     VIBGYOR High - Secondary (for Grade I to XI, all courses)
      

     4. Please write the Name, Grade, Enrolment Number and the
     Course (ICSE, IGCSE, NIOS) on the reverse of the Cheque.
   



     5. Please ensure that all details in your child's Fee Receipt book are
     precise and complete.

     Important :





        * Parents who intend to transfer or apply for a Leaving
        Certificate are requested to meet the Front Office Manager
        and submit a Leaving Certification Application Form on or
        before Friday, 28th March 2008.

     We wish to inform you that the school management has increased





     the school fees from academic year 2008-09 due to increase in
     various administrative and others cost that are beyond our control.
     Please be assured that the increase in fees has been undertaken after
     giving a careful consideration to all relevant factors.

     Thank you for your understanding and support,

     sd/-
     Shim Mathew
     Principal.




                                                 ::: Downloaded on - 09/06/2013 17:44:46 :::
                                             12                                      191909




                                                                                   
       Encl : Fee Structure Details.

                                FEE STRUCTURE (2008-09)




                                                        
      Type of          st
                     1 Quarter          2nd Quarter       3rd Quarter     4th Quarter
       Fees        payable in April   payable in July   payable in Oct    payable in
                         08                  08                08            Jan 09
     Nursery




                                                       
     Tuition Fee        20,500            7,100             7,100            7,100
     Term Fees              1,250            -              1,250               -
     Jr.KG & Sr.KG
     Tuition Fee        20,500            7,100             7,100            7,100




                                         
     Term Fees              2,250            -              2,250               -
     Grade I to IV (ICSE)
                      
     Tuition Fee        22,150            14,400            14,400           14,400
     Term Fees              4,000            -              4,000               -
                     
     Grade V to X (ICSE)
     Tuition Fee        27,500            14,500            14,500           14,500
     Term Fees              5,575            -              5,575               -
     Grade I to IV (IGCSE)
      

        Fees            32,250            20,600            20,600           20,600
     Grade V to VII (IGCSE)
   



        Fees            38,750            23,750            23,750           23,750
     Grade VIII (IGCSE)
        Fees            40,000            30,000            30,000           30,000





     Grade IX & X (IGCSE)
        Fees            32,500            32,500            32,500           32,500
     Grade VI & VII (NIOS)
       Tuition          30,000            23,300            23,300           23,300
        Fees





     Term Fees              5,000                           5,000
     Grade VIII to X (NIOS)
       Tuition          36,000            27,960            27,960           27,960
        Fees
     Term Fees              5,000                           5,000




                                                        ::: Downloaded on - 09/06/2013 17:44:46 :::
                                            13                                 191909


          TYPE OF       1ST    2nd Quarter   3rd     4th    5th    6th




                                                                             
           FEES       Quarter payable in Quarter Quarter Quarter Quarter
                      payable    July 08 payable payable payable payable
                      in April             in Oct. in Jan in Apr in July




                                                     
                         08                  08      09     09    2009
          A Levels (18 month programme)
            Fees         70,000   42,000   42,000    42,000    42,000     42,000




                                                    
     8.     This has been done on the basis of purported approval granted




                                          
     by the Accounts Officer (Education), in terms of his letter dated 21st
                          
     February, 2008. The same reads thus:-
                         
                                                "Letter No: 34 - AO/Ed/W

                                                Accounts Officer (Education)
      

                                                Jogeshwari Mumbai - 60
   



                                                Dated - 21/02/08
                   To,

                   The Education Inspector
                   West Zone, Jogeshwari (E)





                   Mumbai - 60

                   Sub: Audit Inspection Report of Vibgyor High School,
                         Goregaon

                   Ref: Your letter No. 459-61 dated 04/02/2005





                   Dear Sir,

                   In reference to your above mentioned letter we have
                   conducted an Audit between 6/02/08 and 08/02/08 of the
                   Vibgyor High School, Goregaon which is fully Non-Aided
                   school. The report is as per mentioned below:




                                                     ::: Downloaded on - 09/06/2013 17:44:46 :::
                                      14                                  191909




                                                                        
            Vibgyor High School is affiliated to ICSE, New Delhi for
            the Academic year 2007-08, 2008-09 and 2009-10. The




                                                
            school is Private and fully Un-Aided.


            As per the complaint submitted by the PTA, our office has
            conducted an audit of receipts and payments for the period




                                               
            April 07 to Dec 07. It has been observed that during this
            period the total expenditure incurred is Rs. 6,96,64,787/-
            whereas the total receipt is Rs.6,31,86,300/-.




                                  
            Though it is impossible to implement the revised fee during
            this year, we are furnishing herewith the Recommended
                 
            Expenditure for the year 2008-09 as per the GR dated
            22/07/1999, 27/05/2005 and also as per the secondary
            School Code.
                
     A) Recommended Expenditure for 2008-09                        10,75,22,351/-

        Non-Accepted Exp 1) Professional Fee     60,91,264/-
                         2) Building Repairs      6,03,132/-
      


                         3) Staff Welfare         5,00,009/-        (-)71,94,405/-
                                                                   ------------------
   



        Sanctioned Expenditure by Education                       10,03,27,946/-
        Inspector

     B) Other Income (2007-08) support                            (-) 25,31,046/-
                                                                 ------------------





                                                                   9,77,96,900/-

     C) 5% increase as per GR dated 27/05/2005                     (+) 48,89,845/-
                                                                   ------------------
        Approved Salary Exp. + Other Expenses                      10,26,86,745/-





             Out of the total expenditure during 2007-08, 54.24% is
     utilized for primary section and 45.76% for Secondary Section. This
     year the Recommended Expenditure is to be divided in the
     proportion of 54% for primary and 46% for secondary section. The
     revised fee structure has been recommended as shown below .




                                                ::: Downloaded on - 09/06/2013 17:44:46 :::
                                             15                                  191909




                                                                               
            Primary Section                  Secondary Section
            54% Expenditure                  46% Expenditure




                                                       
            5,54,40,842.50                   4,72,35,903.00
            No. of students - 746            No. of students - 575
            Annual Fee - 73,347/-            Annual Fee - 82,149/-




                                                      
            Monthly Fee - 6112.25            Monthly Fee - 6845.75
            Approved Monthly Fee -           Approved Monthly Fee -
            6112.00                          6845.00

           Yours truly,




                                         
           sd/-
           Accounts Officer
                       
           (Education - West Zone)
           Mumbai."
                      
     9.           Soon after the circular, the parents made representation to

     the Chief Minister, complaining about the abnormally high rise of
      


     school fees, approximately Rs.55,000/- to Rs. 82,500/- by the school,
   



     that, too, calling upon the parents to deposit the same within 5 working

     days. The parents thereafter filed writ petition in this Court, being Writ





     Petition No. 722 of 2008. Respondents No. 3 to 7 were the petitioners

     therein, who had filed the said petition in representative capacity,

     praying for the following substantive reliefs:-





           "a. That this Hon'ble Court be pleased to issue a writ of certiorari
           or a writ in the nature of certiorari or any other appropriate writ,
           order or direction quashing and setting aside the Circular dated 19th
           March 2008 (Exhibit B hereto) ;

           b. That this Hon'ble Court be pleased to issue a writ of mandamus
           or a writ in the nature of mandamus or any other appropriate writ,
           order or direction directing the Respondent Nos. 1 and 2 obtain an




                                                       ::: Downloaded on - 09/06/2013 17:44:46 :::
                                              16                                   191909


           approval from Respondent Nos. 3 and 4 and consult the PTA before




                                                                                 
           proposing a fee hike ;

           c. That this Hon'ble Court be pleased to issue a writ of mandamus




                                                         
           or a writ in the nature of mandamus or any other appropriate writ,
           order or direction directing the Respondent Nos. 3 and 4 to inspect
           the financial records of the Respondent Nos. 1 and 2 to determine
           the actual costs and profits in running the Respondent school;




                                                        
           ...... "


     10.              It is not necessary to refer to interim orders passed in the




                                          
     said writ petition, including to the order of the Supreme Court at
                          
     interlocutory stage. The said writ petition was disposed of by Division

     Bench of this Court on 20th April, 2009 along with companion matters.
                         
     That order reads thus:-

           "1.     Both the petitions on motion made by the learned counsel
      

           appearing for the petitioners permitted to be withdraw. Interim
           orders, if any, operating stand vacated. The learned counsel
   



           appearing for the Dy. Director states that the Dy. Director will pass
           a reasoned order on the complaint dated 19.7.2007 made by the
           petitioners, which is marked as Exh. G at page 138 to the reply filed
           by the respondent No. 1. Statement accepted. In view of this
           statement, following order is made.





                                          ORDER

1. The petitioners shall be at liberty to submit any additional
submissions/ material they want to rely on, in support of their
complaint with a copy to the respondent No.1 within a period of two

weeks from today. The respondent No.1 shall be at liberty to make
further submissions including response of the respondent No.1 to
the additional submissions of the petitioners within a period of two
weeks from the date of receipt of the additional submissions from
the petitioners. The Dy. Director thereafter shall take the entire
material produced before him for consideration and make reasoned
order and communicate the same to the parties within a period of six
weeks from the receipt of the submissions from both the sides. By
consent of the parties, it is directed that, it is not necessary for the
Dy. Director to grant oral hearing to the parties. The parties to the

::: Downloaded on – 09/06/2013 17:44:46 :::
17 191909

petitions shall be at liberty to adopt appropriate remedy against the

order of the Dy. Director that will be made. It is made clear that,
according to the petitioners, the complaint referred to above is the
only complaint made and it is to be decided by the Dy. Director and

till it is decided by the Dy. Director, the petitioners would not
approach to any authority. We make it clear that we have vacated
the interim order which was operating and therefore, fees shall be
paid as per the revised fee structure. However, recovery of the fees
shall be subject to the order of the Dy. Director.

2. Both the petitions stand dismissed as withdrawn.

3. In view of the above order, notice of motions are disposed
off.”

This order is of some significance for examining the matters in

issue. We shall deal with that a little later.

11. Pursuant to the abovesaid order, the matter proceeded before

respondent No. 2 to pass a reasoned order. After the disposal of the

writ petition, however, the school had filed Review Petitions, being

Review Petitions No. 19 and 20 of 2009, respectively, on 8th of May,

2009. With reference to the grievance made by the petitioner-school,

statement of advocate for the respondent-parents was made and was

taken on record. The said order dated 8th May, 2009 reads as follows:-

“1. Shri. Mihir Desai, the learned Counsel appearing for original
petitioners states that all objectionable statements and the statements
inconsistent with the order passed by this Court, made in the
additional written submission filed before the Deputy Director of
Education and all objectionable documents filed before the Deputy
Director of Education shall be withdrawn and copy of that

::: Downloaded on – 09/06/2013 17:44:46 :::
18 191909

communication will be given to the respondents during the course of

the day. Statement accepted. Put up after vacation.”

12. The Review Petitions came to be finally disposed of on 8th

June, 2009 on the following basis:-

“1. The learned counsel appearing for original petitioners states
that the Deputy Director of Education, Mumbai 400 007 can
examine whether any part of the submissions made by the petitioners
before the Deputy Director are contrary to the orders passed by this
Court. He also states that the petitioners undertake not to seek any

additional reliefs from the Deputy Director and that the enquiry by
the Deputy Director will be restricted to the original complaint dated

19th July 2007. The statements are accepted. In view of these
statements and the statements recorded in the order dated 8th May
2009, in our opinion, it is not necessary to keep this review petition
pending. Review Petition is disposed off.”

13. As aforesaid, in the earlier order dated 20th April, 2009, as also

while disposing of the Review Petitions on 8th June, 2009, the Division

Bench of this Court made it amply clear that respondent No. 2 shall

restrict the enquiry to the original complaint dated 19th July, 2007.

Obviously, on that understanding, the matter was to proceed before

respondent No. 2. It appears that a task force was assigned the work of

scrutiny of the accounts and audit report of the petitioner-school. It

was noticed that documents necessary to take decision were not

submitted by the petitioner-school. Accordingly, on 15th June, 2009,

respondent No. 2 called upon the principal of the petitioner-school to

::: Downloaded on – 09/06/2013 17:44:46 :::
19 191909

furnish the necessary information. The said letter — original in Marathi

with translation provided by the petitioner-school – reads thus:-

“No.DY.DIR/SE-1/Under Trial/08-09/15634-35
Office of the Deputy Director
Jawahar Bal Bhavan, Netaji Subhash Marg,
Churni Road (W), Mumbai-400 004.

Date : 15 June 2009.

To,
The Principal
Vibgyor High School

Goregaon (W)

SUB : Hon.High Court, OOCJ

Writ Petition No. 722/08
Avisha Gopalkrisnan & Others
vs

Vibgyor High School & Others

Ref : 1. order of the Hon.High Court dtd. 20th April 2009.

With reference to the above mentioned subject and as per the

order passed by the Hon.High Court dated 20th April 2009, he
Deputy Director -Education has to take a decision before 29 Jun

2009. After looking into the points related to the complaint dated 19
Jul, 2007 and to take a decision in the current situation after going
through the documents the following details have to be provided to
the office on an urgent basis.

1. Income & Expenditure Statement and the Audit Statements
of the Financial year 2008-09.

2. Building Rent Certificate provided through a competent
authority and the copy of Property Tax paid.

3. List of Teaching & Non-Teaching Staff, & their Salary scale.
Has the PTA permitted in case of salary paid is higher than

the regular salary structure ?

4. Copy of establishment of the Parent Teacher Association.

Kindly hand deliver the above required documents on an
urgent basis before 19th June 2009 considering the urgency of the
matter and to avoid contempt of Court.

Sd/-

For Deputy Director
Mumbai Division, Mumbai.

::: Downloaded on – 09/06/2013 17:44:46 :::

20 191909

Copy for Information and Proper action :

Education Inspector, West Zone, Jogeshwari (W) – This is to

inform you to give an order to the school authority to submit above
documents in time and follow up for the same..” (emphasis supplied)

14. However, as the information was not forthcoming from

the petitioner-school, respondent No.2 issued communication dated 30th

June, 2009 / 3rd July, 2009 and the minutes of his decision — original in

Marathi with translation provided by the petitioner-school – which read

thus:-

“Exhibit “C”

No. DY.DIR/SE-1/Under trial/08-09/17423-28
Office of the Deputy Director
Jawahar Bal Bhavan,Netaji Subhash Marg,

Churni Road (W),Mumbai- 400 004
Date: 30 June 2009

To,

1. Smt. Avisha Gopalkrishnan,

Shri 157, Jain Jinalay Marg,
Bangur Nagar, Goregaon (W)
Mumbai- 90

2. Smt. Leena Karia
D-51, Pranik Garden
Mahavir Nagar, Kandivali W Mum-69

3. Rustomjee Kerawalla Foundation
Keralawalla Chambers, Apollo Bunder,
Opp.Radio Club, Colaba
Mumbai- 400 001

4. Principal
Vibagyor High
Goregaon W. Mumbai-104

5. Education Inspector
West Zone Mumbai

::: Downloaded on – 09/06/2013 17:44:46 :::
21 191909

SUB: Writ Petition No. 722/2008 submitted at the
Hon.High Court
As well as Writ Petition (Lodging) No.

511/2009
As well as Notice of Motion NO. 2809/2008
As well as notice of Motion no. 286/2009 in
Writ Petition(Lodging) No. 511/ 2009

REF: Order of the Hon. High court dated
20/04/2009

With regards to the above mentioned subject

and through the referred order it has been ordered to
inform the concerned about the current issue after

taking proper decision. Enclosed is the joint decision
taken by this office regarding the above matter.

Sd/-

(Counterfoil signed by the (Dongre)
Deputy Director-Education) Mumbai Division, for Mumbai

Copy for information

1. Govt. Lawyer (Main Branch), High Court,
Mumbai-32

SUB: Writ Petition No.722/2008 submitted at the
Hon.High Court
As well as Writ Petition (Lodging) No.
511/2009
As well as Notice of Motion NO. 2809/2008

As well as notice of Motion no. 286/2009 in
Writ Petition(Lodging) No. 511/ 2009

As per the orders given by the Hon. High Court
on 20/04/09, a joint decision from the Education
Deputy Director regarding Vibgyor High,
Goregaon9W) is expected. As per these orders, a
meeting of the Task force was organized at the office
of the Education Deputy Director, Mumbai on

::: Downloaded on – 09/06/2013 17:44:46 :::
22 191909

12/06/09. In the meeting, with reference to the

issues raised in the complaint, documents were
checked and the following information was requested
from the school through this office letter dated

15/06/09.

1. Income and Expenditure Statement and the
Audit Statements of the Financial Year

2008-09(Certified by a Chartered Accountant)

2. Building Rent Certificate provided through a
competent authority and the copy of Property
Tax paid.

3. List of Teaching and Non-Teaching Staff, and

their Salary scale. Has the PTA permitted in
case of salary paid is higher than the regular

salary structure?

4. Copy of establishment of the Parent Teacher
association.

Since the above information was not submitted
by the school, a meeting of the Task force was held on
30/06/09 under the chairmanship of the Eduction
Deputy Director to take a final decision.

In this meeting, as per the documents available

with the office,the Expenses for the year 2008-09 as
certified by the Education Inspector (west Zone), the
Audit Report dated 21/02/08 of the Accounts Officer
(Eduction) West Zone, has been considered. After

considering the same, the following decision has been
taken.

1) Formation of the PTA:

As per the GR No. SSN 1099( 27/99) Sec.Edu.-2

dated 22 May, 2000 issued by the School Education
Department, Mantralaya, Mumbai vibgyor High
School should immediately form a PTA as per the
prescribed procedure set out in the GR.

      2)    With   regard   to   expenses   of   Pre-Primary, 
      Primary and Secondary Sections




                                             ::: Downloaded on - 09/06/2013 17:44:46 :::
                                         23                                   191909


As per the Certificate dated 15/05/2009 of the

Chartered Accountant submitted by VIBGYOR High
School, the common expenses for Pre-Primary,
Primary and Secondary sections have been segregated

section-wise. Which means the Income and
Expenditure for Pre-primary is separate and
Primary/Secondary sections expenses have been
reflected proportionately.

            3)      Regarding Fees:

                A.  Proposed Expenses for the year 2008-09
                     Proposed Expenses              Rs. 10,75,22,351/-




                                    

Expenses disallowed by the Education Inspector in his

report as per the GR No. SSN
11197(311/97)/Sec.Edu-3 dated 22 July, 1999

1.Professional Fees – 60,91,264/-

2.Building Repairs – 6,03,132/-

            3.Staff Welfare     -   5,00,009/-

                    Total            - 71,94,405/- (Less) Rs.71,94,405/-
      


            Expenses earlier approved by the 
   



            Education Inspector                 Rs. 10,03,27,946/-

            Building's rent expenses disallowed 
            (Task force)                  (less)   Rs.2,50,00,000/-





            Permissible Expenses                         Rs.7,53,27,946/-

            B. Other Income (Basis: Report of 
                the year 2007-08)       (Less)Rs. 25,31,046/-
                                                Rs. 7,27,96,900/-





            C. As per GR dated 27 May 2003 
                incremental income     (Add) Rs.36,39,845/-

                Permissible Salary and Other
                Expenses                              Rs.7,64,36,745/-

                          After   considering   the   use   of   the   building 
            during   the   year   2007-08   as   46%   for   Secondary 




                                                    ::: Downloaded on - 09/06/2013 17:44:46 :::
                                            24                                   191909


Section and 54% for Primary section, the below

mentioned fees is being considered.

Primary Section Secondary Section
Rs. 7,64,36,745/-X 54% Expenses Rs.7,64,36,745/- X 46% Expenses
Rs.4,12,75,842/- Rs.3,51,60,903/-

Student Count-756 Student Count-575

Yearly fees Rs. 54,598/- per Yearly fees Rs.61,149/- per
student student
Monthly fees Rs.4,550/- per Monthly fees Rs.5,096/- per
student student

For the Primary section and the Secondary
section, Rs.4550/- & Rs.5096/- respectively, such
monthly fees seem permissible.

Prima facie it appears that the salaries of
the teaching and non-teaching staff is more than the
salary prescribed by the Government. As per the GR
No. SSN 1197( 311/97)/ Sec-ed-3 dated 22 July 1999

at Sr. no.2, it is necessary to take approval from the
PTA regarding such high salary.

However, vide GR No. Mis-2009/(108/09) Sec.

Ed-3 dated 8th May 2009, order not to increase
Education and other fees without the consent of the

Free Control Committee has been passed. As per this
order, every school has been prohibited to increase
their fees without the recommendation of the Fee
Control Committee. Accordingly vide GR.No. Mis-
2009 (108/09) Sec. Ed-3 dated 11th June, 2009, a
committee has been formed to study and make

recommendations for the purposes of fixing the fees.
For taking a final decision in this regard, it will be
appropriate that the further decision is taken in the
Fee Fixation committee formed as per the above GR.

Sd/-

(Counterfoil signed by the (Dongre)
Deputy Director-Education) Education Deputy Director
Mumbai Division, for Mumbai

::: Downloaded on – 09/06/2013 17:44:46 :::
25 191909

15. According to the petitioner-school, this communication

was not received by them for quite some time. Secondly, on plain

wording of the said communication, it was obvious that no final

decision was taken by respondent No. 2 on the issue of justness of the

hike in tuition fees / term fees by the petitioner-school. Thirdly, there

was intrinsic evidence to suggest that the record in the office of

respondent No. 2 was manipulated. Lastly, that respondent No. 2 was

acting under pressure or dictation of parents, which was obvious from

his communication dated 4th September, 2009, calling upon the

petitioners to give effect to his purported decision dated 3rd July, 2009.

The said letter dated 4th September, 2009 — original in Marathi with

translation provided by the petitioner-school – reads thus:-

“No. Dy.DIR/SE-4/Fee/08-09/23241-45

Office of the Deputy Director
Jawahar Bal Bhavan, Netaji Subhash
Marg, Churni Road (W),
Mumbai-400 004

Date : 4th Sept. 2009.

To,

1) Rustomjee Kerawalla Foundation
Kerawalla Chambers, Apollo Bunder,
Opp. Radio Club, Colaba,
Mumbai-400 001

2) Principal
Vibgyor High School,
Goregaon W. Mumbai.

::: Downloaded on – 09/06/2013 17:44:46 :::

26 191909

SUB : Writ Petition No. 722/2008 submitted at the Hon.High Court
As well as Writ petition (Lodging) No. 511/2009

As well as Notice of Motion No. 2809/2008
As well as Notice of Motion No. 286/2009 in Writ Petition
(Lodging) No. 511/2009
REF : 1. Order of the Hon.High Court dated 20/04/2009

2. Letter no.DY.DIR/SE-1 Under Trial/08-09/17423-28

dated 03/07/09 from this office

3. Letter from Nankani & Associates dated 14/08/2009.

With regards to the above mentioned letter no. 1, as per
decision given by the Hon.High Court, orders from our office have

already been issued through our letter 03 Jul. 2009 regarding school
fees. Through the said order Annual fees for the Primary section

Rs. 54,598/- and for secondary section Rs. 61,149/- has been fixed.
We inform as mentioned below regarding the orders dated
03/07/2009 referred in the letter no. 3 from your lawyer.

From the year 2008-09, it is ordered that fees for Primary
Section Rs.54,598/- and for secondary section Rs. 61,149/- be
charged.

As per the instructions contained in the last paragraph of the

referred letter No.2, because the Fee Control committee has not
been formed, the fee determined in the decision given by this office

in the letter dated 03/07/2009 is final. In this regard, immediate
action be taken.

Sd/-

Dy.Director-Education

Mumbai Division, Mumbai.

Cc : For information & for appropriate action.

1. Education Inspector, West Division, Mumbai.

2. Smt. Avisha Gopalkrisnan, Shri 157, Jain Jinalay Marg,
Bengur Nagar, Goregaon (W), Mumbai- 60.

3. Nankani & Associates, 114 Yusuf Building, 1st Flr.,
V.N.Road, Flora Fountain, Fort, Mumbai-400 001.”

16. In this backdrop, the petitioners rushed to this Court by

way of present writ petitions challenging the abovesaid two

::: Downloaded on – 09/06/2013 17:44:46 :::
27 191909

communications received from the office of respondent No. 2 for the

reliefs already referred to above.

17. Here, we do not think it necessary to advert to several

orders passed in these pending writ petitions from time to time, except

to refer to order dated 3rd August, 2010. On that day, these writ

petitions were heard in part. Considering the grievance of the

petitioners that no reason whatsoever was recorded in the decision of

respondent No. 2 dated 3rd July, 2009, insofar as disallowance of the

petitioner’s claim for buildings rent, it was thought appropriate to first

ask respondent No. 2 to record reasons for the said disallowance, so

that all other issues raised by the respective parties in the present

petitions could be answered together upon receipt of the said reasons.

The Court, therefore, instead of disposing of the petitions, directed

respondent No. 2 to permit the parties to file their response /

submissions / documents, and on the basis of which, he was called

upon to record reasons regarding the permissibility or otherwise of

amount towards school buildings rent to be recovered from the

students. Pursuant to the said direction, respondent No. 2 has passed

order dated 27th October, 2010 — original in Marathi with translation

provided by the petitioner-school – purported to be reasons for

::: Downloaded on – 09/06/2013 17:44:46 :::
28 191909

disallowance of the amount towards school building rent. The same

reads thus:-

“No. DDE/Sec-4/Fee/2010/25194/96
Office of Dy. Director of Education Mumbai

Division
Jawahar Bal Bhavan,
Netaji Subhash Road,
Charni Road (West),
Mumbai 400 004

ig Dt. : 27th October 2010.

To :

1. Rustomjee Kerawalla Foundation

Kerawalla Chambers, Apollo Bunder,
Opp. Radio Club, Colaba,
Mumbai-400 001.

2. Principal

Vibgyor High School,
Goregaon (West),

Mumbai.

Sub : Fixation of rent of the Bldg. occupied by Vibgyor school.

Ref : 1. Order of the Hon’ble High Court dated 3rd August 2010
and 18th August 2010 passed in Writ Petition
No. 1919/2009- Notice of Motion No. 2/2010 and
Writ Petition No. 1925/2009.

2. Representation submitted through Advocate Nankani
& Associates dated 30th August 2010.

On the subject noted above you are hereby informed that as per
order of the Hon’ble High Court decision was given on the proposal
for fee fixation submitted by you vide this office letter No.
DDE/Sec-1/SJ/08-09/17423-28 Dt. 3/07/09 and 04/09/2009.

You have filed Writ Petition No. 1919/09 in the Hon’ble High
Court against the order passed by this Office. The Petition was
heard alongwith Notice of Motion No. 2 of 2010 and Writ Petition

::: Downloaded on – 09/06/2013 17:44:46 :::
29 191909

No. 1925 of 2009 and the Hon’ble High Court has passed orders

dated 3rd August 2010 and 18th August 2010.

As per the above order of the Hon’ble High Court you have

submitted a proposal dated 30th August 2010 for fixation of fees
after taking in to account the disallowed expenses of building rent.

Government has issued a detailed order vide Government
Resolution dated 22nd July 1999 in respect of fixation of fees of

unaided schools.

While taking into account the expenses at the time of the fixing
the fees the above Government Resolution has been considered.

The proposal submitted by you to this office for fixation of fees
in pursuance of the order passed by the Hon’ble High Court in Writ

Petition No. 722 of 2008 and other Writ Petitions has been received
and such received proposal was scrutinized. As per the criteria laid
down by the Government from time to time and by the Task Force
constituted under GR dated 3rd July 1999 and the final decision

dated 3rd July 2009 was communicated.

Your attention was drawn to schedule “A” of Secondary School
Code in relation to provisions of fixation of building rent and further
the directions given by respected Education Director, Maharashtra

State Pune, vide letter dated 19th July 1996 about documents to be
submitted with the proposal for fixation of fees of unaided schools.

In your proposal you have not submitted rent certificate,
certified by Executive Engineer PWD, for allowing building rent,
required under above both the provisions. However instead of
submitting certified normal rent certificate you have submitted rent

certificate prepared on the basis of market value prepared by the
valuer (Shrinivas S. Kini & Co.). As per prescribed provisions you
have not submitted reasonable rent certificate of the Competent
Authority. Therefore while fixation of fees the cost of rent of the
building proposed by you cannot be taken into account.

Sd/-

Sunil Chowhan
Dy. Dir. of Education
Mumbai Div. Mumbai.

Copy of intimation and necessary action.

1. Education Inspector, West Ward, Greater Mumbai.”

::: Downloaded on – 09/06/2013 17:44:46 :::

30 191909

18. The reasons so recorded are justification given for the

order issued by respondent No. 2 purportedly on 3rd July, 2009, and the

direction contained in communication dated 4th September, 2009, which

are impugned in these petitions.

19. The first contention of the petitioners is that respondent

No. 2 has exceeded his authority in deciding on question regarding hike

in tuition / term fees introduced by the petitioner-school. In that the

subsequent proceedings in terms of the orders of this Court dated 20th

April, 2009 and 8th June, 2009 were limited to examining the issues

raised in complaint made by respondents No. 3 to 7 and other parents,

dated 19th July, 2007. No other issue could have or ought to have been

examined by respondent No. 2, whereas the decision of the petitioner-

school to increase the tuition / term fees was taken much later, on 19th

March, 2008, which, therefore, could not have been the subject-matter

of challenge in complaint dated 19th July, 2007. According to the

petitioners, the question whether respondent No. 2 was competent to

fix the tuition / term fees specified by the petitioners for their students

in the garb of regulating the fee structure of the school itself was the

core issue. Respondent No. 2 could not have exercised power on the

basis of procedure prescribed in the Government Resolution, even if

::: Downloaded on – 09/06/2013 17:44:46 :::
31 191909

the same was to be considered as issued in exercise of powers under

Article 162 of the Constitution by the State Government. The next

contention of the petitioners is about the scope of the purported

complaint sent by the parents dated 19th July, 2007. Further,

respondent No. 2 could not have disallowed the expenses incurred by

the petitioners towards building rent paid by the petitioners to the lessor

merely on the ground of non-production of a Building Rent Certificate

from the Executive Engineer and also in disregard of the approved /

recommended expenditure by the Accounts Officer, Education, West

Zone, Mumbai, dated 21st February, 2008 for the year 2008-09.

Moreover, the insistence of respondent No. 2 to produce the certificate

of the Executive Engineer was based on procedure prescribed in

Government Resolution dated 22nd July, 1999, which Resolution has

already been quashed and set aside by this Court in Writ Petition

(Lodging) No. 1876 of 2010 decided on September 1, 2010, being ultra

vires. It is next contended that respondent No. 2 had no power to

review his own order. Besides, the decision of respondent No. 2, by no

standard, can be said to be reasoned order. In spite of the specific

direction by this Court to do so, respondent No. 2 has not analysed the

stand taken by the petitioners before him, including about his authority

to regulate the fees of unaided private minority school. Lastly, the

::: Downloaded on – 09/06/2013 17:44:46 :::
32 191909

petitioners have also challenged the impugned decisions of respondent

No. 2 on the ground that they suffer from the vice of malafides in fact

and in law, tantamounting to abuse or colourable exercise of power.

20. Respondent No. 1 has resisted the above contentions on

the arguments that the complaint made by the parents dated 19th July,

2007 was also in respect of excessive fees and allegation of profiteering

by the Management. In the context of the said complaint, respondent

No. 2 was obliged to examine the grievance of the parents in that

behalf, and, while doing so, was justified in disallowing the claim of

the petitioners in respect of buildings rent charges, which, according to

him, was unsubstantiated. In the first place, respondent No. 2 referred

to the recommendation of the task force and on the second occasion, in

proceedings for recording reasons, in spite of opportunity given to the

petitioners, no documentary evidence was produced by the petitioners

to accept their stand that the expenses so incurred were justified to the

extent of the said claim of the petitioners, being in the sum of Rs. 2.5

crores per annum. Thus, respondent No. 2 disallowed the claim under

that head. Respondents No. 1 and 2 further contended that respondent

No. 2 was competent to examine the issue in respect of the petitioners’

claim towards school building rent expenses and whether in the facts

::: Downloaded on – 09/06/2013 17:44:46 :::
33 191909

and circumstances of the case, that claim can be accepted as usual and

permissible expenditure or results in indirectly transferring the

expenditure towards lands and buildings on the students tantamounting

to Capitation Fee. Respondent No. 2 was competent to examine those

matters on the basis of procedure specified in the Government

Resolution dated 22nd July, 1999 and 15th July, 2010, as also

Government Resolution dated 19th July, 1996, and more particularly,

the provisions of the Secondary Schools Code – 2002, including Rules

49.3, 50.6 and 89.1 read with Schedules ‘A’ and ‘B’ thereof.

According to respondents No. 1 and 2, the petitioners did not

co-operate with respondent No. 2. Instead of furnishing the desired

information, untenable issues were raised by the petitioners, as a result

of which, respondent No.2 was driven to decide the issue against the

petitioners as they failed to substantiate the claim towards the building

rent. Respondents No. 1 and 2 have also refuted the allegation of

manipulation of office records of respondent No. 2 or that his decision

was mala fide in fact or in law. These respondents have also relied

upon the Task Force Report. These respondents supported the

conclusion reached in the impugned decisions of respondent No. 2

disallowing the petitioners’ claim towards building rent to the extent of

Rs. 2.5 crores per annum.

::: Downloaded on – 09/06/2013 17:44:46 :::

34 191909

21. Respondents No. 3 to 7 have also contested these

petitions. According to respondent No. 3, three core issues would arise

for consideration. The first core issue, which is in three parts, is:

(i) Whether the devise adopted by the petitioners was to profit from

tuition / term fees? Moreover, the petitioners themselves should be

blamed for not furnishing necessary information demanded by

respondents No. 2, and were responsible for preventing respondent

No. 2 from passing a comprehensive, reasoned order to unravel the

maladministration and profiteering by the school management.

(ii) Whether fraud has been committed by the petitioners on the Charity

Commissioner while obtaining sanction for alienation of immovable

property of a public charitable trust (which runs the petitioner-school)

to a private limited company to facilitate the commercialisation of

education to siphon off funds to the private company in which the very

same persons are the only three trustees in control of the affairs of the

Trust and were the only Directors in the private limited company? The

circuitous transaction effected was in violation of law. (iii) The next

shade of the first core issue, according to respondent No. 3, is that, it is

indisputable that the State Government has authority to regulate

tuition / term fees in private unaided schools, including unaided

::: Downloaded on – 09/06/2013 17:44:46 :::
35 191909

minority schools, if the same were resorting to commercialisation and

profiteering by virtue of provisions of the Maharashtra Educational

Institutions (Prohibition of Capitation Fee) Act, 1987 (hereinafter

referred to as “the Capitation Fee Act”).

22. The second core issue is: Whether the regulations by the

State should be at the stage of admission to the school or at the post-

audit stage? The third issue, according to respondent No. 3, is:

Whether the two Government Resolutions dated 22nd July, 1999 and

15th July, 2010 could be taken into account, and are valid and

mandatory? Further, the opinion expressed by the Division Bench of

this Court in Writ Petition (Lodging) No. 1876 of 2010 decided on

September 1, 2010 is per incuriam, and in any case, whether the

present petitions can be proceeded, irrespective thereof?

23. Besides the above three core issues, respondent No. 3 has

countered the contentions raised by the petitioners. We may add that,

to buttress the allegation that the petitioners were indulging in

profiteering and commercialisation, respondent No. 3 has referred to

the salaries of the school staff, which, according to the petitioners, are

higher than approved norms. As is noticed earlier, none of the parents

::: Downloaded on – 09/06/2013 17:44:46 :::
36 191909

have chosen to challenge the decision of respondent No. 2, who has

accepted the other expenses claimed by the petitioner-school. It is the

petitioners who have approached this Court to challenge the opinion of

respondent No. 2 disallowing their claim in respect of buildings rent.

In these petitions, the parents cannot be permitted to enlarge the scope

of proceedings relying upon other expenses claimed by the petitioners

which have already received approval of the Authority.

24. Respondent No. 3 has also raised issues about the manner

in which the petitioners have advisedly prevented respondent No.2

from recording reasons regarding the maladministration of the school,

in particular, in the context of the claim of buildings rent. Further, the

petitioners hastened the hearing of Writ Petition (Lodging) No. 1876 of

2010 filed by the Association of International School and Peace

Foundation, an association of private unaided schools, of which the

petitioner-school is also a member, so as to pre-empt the present

proceedings by getting declaration that the Government Resolutions

dated 22nd July, 1999 and 15th July, 2010 were ultra vires; and could

not be made the basis to regulate the fee structure of the petitioner-

school. Respondent No. 3 was represented by her advocate in one

matter, and she appeared in person in the companion petition.

::: Downloaded on – 09/06/2013 17:44:46 :::

37 191909

25. Respondents No. 4 to 7 are represented by separate

advocate, who has supported the argument of the other respondents

and, in addition, contends that the main issue in the present cases is:

Whether the petitioner-school has indulged in profiteering by raising

the tuition / term fees to abnormally high level on the pretext of having

incurred expenses towards building rent to the extent of Rs. 2.5 crores

per annum. According to these respondents, respondent No. 2 has

merely disallowed the expenses towards the building rent, and on that

basis, proportionately reduced the fee structure. It is the case of these

respondents that the Trust has indulged in profiteering by fraudulently

leasing the property to a private limited company, whose only Directors

are the trustees of the school Trust, which private limited company,

in turn, has purportedly leased the constructed building to the Trust and

has charged building rent therefor at the market rate. According to

these respondents, although the impugned decision of respondent No. 2

does not specifically advert to this aspect, considering the fact that

respondents No. 4 to 7 had raised that argument before respondent No.

2, it could be inferred that the conclusion of respondent No. 2 is

founded on the said objection. According to this respondent, the

petitioner-school has resorted to such ingenuity, so as to pass off the

::: Downloaded on – 09/06/2013 17:44:46 :::
38 191909

capital expenditure as a revenue expenditure, by recovering the same in

the name of buildings rent from the students in short time, and to later

on make huge profits at the expense of the school, the children and the

parents, more so contrary to the undertaking given to the local

Authorities, which had allotted the land to the original allottee at

virtually no cost for running an educational institution in the interests

of charity and for the benefit of the public at large. Even these

respondents contend that the State Authorities relied on Government

Resolutions, including G.R. dated 27th May, 2003, which has been

justly introduced after the decision of the Apex Court in T.M.A. Pai’s

case (AIR 2003 SC 355). That G.R. has not been set aside by any

Court of competent jurisdiction nor has been challenged in these

petitions. These respondents further contend that the withdrawal of

earlier Writ Petition by them, being Writ Petition No. 722 of 2008,

cannot come in their way to challenge the action of the petitioners of

fixing high fees on the ground that the petitioner-school is engaging in

profiteering and commercialisation while resisting these petitions. It is

further contended that the petitioner-school is adopting double

standards. In that, the petitioners are relying on audit report to contend

that the expenses referred to therein have been recommended by the

Accounts Officer, Education, West Zone, which recommendation was

::: Downloaded on – 09/06/2013 17:44:46 :::
39 191909

based on Government Resolutions dated 22nd July, 1999 and 27th May,

2003. On the other hand, the order of respondent No. 2 is criticised by

the petitioners, because it refers to the Guidelines provided in

Government Resolution dated 22nd July, 1999, which has now been set

aside by the Court. It is further contended that the Accounts Officer

was not the competent Authority to grant approval to the fee structure

prescribed by the petitioners. That has to be done by respondent No. 2,

being the statutory Authority in that behalf.

26. These respondents have then highlighted the circuitous

transaction effected between Madhya Pradesh Mitra Charitable Trust

(M.P.M.C.T.), the original allottee of the land in question from

MHADA and the Rustomjee Kerawalla Foundation (R.K.F.) Trust and

the private limited company – Kare Edumin Pvt. Ltd. (K.E.) and

another charitable trust called “Rajasthan Vidhya Nidhi” (R.V.N.). We

shall advert to those details a little later. The sum and substance of the

stand taken by respondents No. 4 to 7 is that the petitioners have

succeeded in playing fraud on the Charity Commissioner as well as

MHADA, the local authority. In the circumstances, this Court must

uphold the conclusion reached by respondent No. 2 of disallowing the

petitioners’ claim towards building rent by lifting the corporate veil and

::: Downloaded on – 09/06/2013 17:44:46 :::
40 191909

disregard the permission granted by the Charity Commissioner or

MHADA, the local authority, as the case may be, as the said

transactions have been effected only to create subterfuge so as to

siphon off the amount to the extent of Rs.2.5 crores per annum in the

garb of building rent / lease rent, which would eventually be enjoyed

by the same three persons, who are trustees in the Trust as well as the

only Directors in the private limited company. The said Directors

would eventually reap profit, whereas the school will bear the loss

towards building rent and that loss will be passed on to the students to

justify high tuition fees / term fees.

27. Having considered the rival submissions, at the outset, we

will first consider the sweep of order passed by the Division Bench of

this Court dated 20th April, 2009 in Writ Petition No. 722 of 2008 and

connected petitions. The order records the concession of the Deputy

Director that he will pass a reasoned order on the complaint dated 19th

July, 2007 made by the parents. On the basis of the said statement, the

Court proceeded to dispose of the petition as withdrawn, with liberty to

the parents – petitioners in the said petition – to submit additional

submissions / material on which they intended to rely in support of

their complaint dated 19th July, 2007; and the Management of the

::: Downloaded on – 09/06/2013 17:44:46 :::
41 191909

school was given opportunity to make further submissions, including

response to the additional submissions / material to be relied by the

parents. The Deputy Director was then expected to consider the entire

material produced before him by the respective parties afresh and pass

a reasoned order and communicate the same to the parties within the

specified time. The Court reiterated that the issues raised in the

complaint made by the parents dated 19th July, 2007 alone were to be

decided by the Deputy Director; and, till the said decision, the parents

would not approach any other authority. The Court, further, vacated

the interim order, which was operating in favour of the students /

parents, with clarification that the amount recovered from them as per

the revised fee structure shall be subject to the order of the Deputy

Director. On perusal of the said order dated 20th April, 2009, the stand

taken by the petitioners in these petitions that the Deputy Director was

called upon to only consider the issues raised in the said complaint

dated 19th July, 2007 deserves acceptance. As a matter of fact, that

position is reinforced from the subsequent order passed by the same

Division Bench dated 8th June, 2009 in Review Petition No. 19 of 2009.

28. Having said this, we will now turn to the complaint dated

19th July, 2007. On perusal of the said complaint, it is noticed that,

::: Downloaded on – 09/06/2013 17:44:46 :::
42 191909

amongst other grievances, the parents of students studying in the

petitioner-school had raised the issue about the unjust enrichment by

the petitioner-school by not reverting back amount from the savings

under the head “Franchisee Fees” to the parents (about 12 – 15%).

Besides, in Point No. 6, specific grievance has been made that the

original fee structure was inclusive of a premium paid for the KKEL

Billabong Brand, which amount has been pocketed by the school. Not

only that, apprehension was placed on record by the parents in the form

of Point No. 7 that the school was likely to further increase the fees,

which the earlier P.T.A. had successfully prevented the school from

introducing the same. In the penultimate paragraph of the

communication, the principal grievance about blatant manipulation

resorted to by the school to install a dummy P.T.A. with purpose is

highlighted. Besides, the apprehension was that, taking advantage of

the situation, the petitioner-school will successfully push the fee hike,

which it has been trying to do for the last two years. It is further noted

that the present body of parents would not have approved any fee hike,

as the quality of education delivered in the school was way below the

standard even for the current level of fees presently charged. In the

summation, it is alleged that the petitioner was running the school as a

business profit centre. In other words, the complaint, amongst others,

::: Downloaded on – 09/06/2013 17:44:47 :::
43 191909

was also in relation to the excessive fees charged by the school and

allegation against the Management of indulging in commercialisation

and profiteering. It is, therefore, not possible to countenance the

argument of the petitioners / Management that the scope of enquiry

before the Deputy Director in terms of order dated 20th April, 2009

passed in Writ Petition No. 722 of 2008 was not in respect of matters

regarding excessive fees charged or likely to be charged by the school,

resulting in commercialisation and profiteering. It is true that the

petitioners / Management revised the fees on 19th March, 2008 – much

after the complaint was sent by the parents on 19th July, 2007. In that

sense, the justness of the matter specified in the circular dated 19th

March, 2008 issued by the petitioner / Management of the school was

not the subject-matter of complaint dated 19th July, 2007 as such.

However, the complaint dated 19th July, 2007 made by the parents,

indisputably, makes reference to the issue of likelihood of hike in

school fees and illegitimate demand by the School Management in the

form of fees, which was to indulge in commercialisation and

profiteering. For, the said complaint specifically asserts that the parents

/ complainants apprehend that the Management of the school was

likely to enhance the fees to unreasonable and unacceptable level. It

is, therefore, not possible to countenance the stand of the petitioners

::: Downloaded on – 09/06/2013 17:44:47 :::
44 191909

that the issues raised by the parents in the complaint dated 19.7.2007

were limited to unlawful PTA elections, quality issues, and levy of fees

only for Assessment Year 2007-2008, being not commensurate with

the quality of education being imparted. One cannot be oblivious of the

fact that the said complaint sent by the parents was in the nature of

representation and not a Petition or plaint filed before the Court which

requires articulation of material facts and particulars. Representation of

this nature is bound to be loosely worded and will have to be

understood in its totality and not deciphered with mathematical

exactitude as is sought to be done by the petitioners. The fact that

specific prayer was asked in the Writ Petition filed by the parents to

challenge the circulars issued by the School regarding fee revision

dated 19th March, 2008 and no specific order was passed by the Court

thereon cannot militate against the parents nor can come in the way of

respondent No.2 to exercise his statutory duty. It can be said that

respondent No.2 in the impugned communication not only examined

the matter in the context of the order of this Court dated 20.4.2009, but,

also in discharge of his statutory duty to ascertain whether there has

been any contravention of mandate of the Capitation Fee Act.

::: Downloaded on – 09/06/2013 17:44:47 :::

45 191909

29. To put it differently, the complaint dated 19.7.2007

included issue regarding excessive fees being charged by the

school. The Deputy Director of Education was competent to

examine that grievance so as to ascertain whether there is or

has been contravention of the provisions of the Capitation Fee

Act. In this view of the matter, reliance placed by the petitioners

on the decisions of the Apex Court in the case of Direct Recruit

Class II Engineering Officers’ Association Vs. State of

Maharashtra & Ors. [ (1990) 2 SCC 715 para-35 at

page-740], and in the case of M. Nagabhushana Vs. State of

Karnataka [ (2011) 3 SCC 408 paras 12, 13, 17, 18, 20, 21

& 22 thereof ] to contend that the respondents, in particular

respondent No.2, could not have traversed the issue of approval

of the fees fixed by the school, will be of no avail. In other

words, the issue of profiteering and commercialization by the

school was very much open to enquiry by respondent No.2 and

more so the apprehension of the parents that the school was

likely to introduce revision of the fees which would result in

commercialization and profiteering. Assuming for the sake of

::: Downloaded on – 09/06/2013 17:44:47 :::
46 191909

argument that the opinion of respondent No.2 was in relation to

the fee revision circular issued by the school dated 19th March,

2008, even that would not come in the way of respondent No.2

to ascertain whether the demand made therein contravenes the

mandate of the Capitation Fee Act.

30. Understood thus, merely because the circular regarding

revision of fees was introduced at a subsequent point of time for

academic year 2008-09, vide circular dated 19th March, 2008, that

would not preclude the parents to pursue the grievance regarding

excessive fees, being in the nature of capitation fee, during the enquiry

before the Deputy Director in connection with the grievance made in

the complaint dated 19th July, 2007, nor is it possible to suggest that the

Deputy Director was incompetent to examine the said matter at all.

If the law authorises the Deputy Director to enquire into the question of

justness of the revised fees to be demanded by the school, and whether

it partakes the colour of capitation fee, it may not be possible for the

Court to accept the extreme argument of the petitioners / Management

that the impugned decision of the Deputy Director be completely

disregarded. To say otherwise would mean that the Deputy Director,

::: Downloaded on – 09/06/2013 17:44:47 :::
47 191909

even though competent to enquire into the fact whether the revised fees

demanded by the school results in capitation fee, could not have done

so because of the order of the Court dated 20th April, 2009. Taking

such a view would be a pedantic approach. On the other hand, what

we need to enquire is: Whether the conclusion reached by the Deputy

Director that the revised fee structure proposed and notified by the

Management of the School, which includes the amount spent by the

Management towards buildings rent, results in comercialisation and

profiteering by the Management? That, however, will be subject to

holding that the Deputy Director is competent to examine the said

matter. We shall refer to that aspect a little later.

31. We shall, therefore, now turn to the question: Whether

the Deputy Director was competent to authoritatively hold that the

revised fee structure unilaterally notified by the school could not be

given effect to in toto, as it results in recovering expenses other than

usual expenditure such as the expenditure on land and buildings in the

name of buildings rent, which are not permissible expenses? We have

no difficulty in accepting the stand taken by the petitioner /

Management that the petitioner, being unaided minority institution, is

free to fix its own fee structure. The said right, however, is

::: Downloaded on – 09/06/2013 17:44:47 :::
48 191909

circumscribed to the extent that the fee structure so fixed by the private

unaided minority school should not result in profiteering and

commercialisation. The petitioners relying on the decisions in TMA

Pai’s case and in the case of Kochi University of Science and

Technology and another Vs. T.P.J. and others [ (2008) 8 SCC 82

para-16] would contend that an educational institution is entitled to

chalk out its own fees structure year-wise on the basis of the projected

receipts and expenditure, and it is not open to the State Authorities to

interfere with those matters which are purely administrative in nature.

Further, the educational institution must be left with its own devises to

explain the receipts and expenses as before the Chartered Accountant

and to call upon to furnish the basis for fixation of higher fee would be

laying down onus on the educational institution which it cannot

discharge with accuracy. It was argued that the demand by respondent

No.2 Deputy Director of calling upon the petitioner to justify the

reasonableness of the amount of the expenses incurred towards the

lease rent by furnishing building rent certificate was bad in law and

contrary to the decisions of the Apex Court. The broad proposition

canvassed by the petitioners that the private unaided schools can fix

their fees by themselves is not open to debate at all. As aforesaid, that

right is not an absolute right, but, subject to the assessment by the State

::: Downloaded on – 09/06/2013 17:44:47 :::
49 191909

Authorities of whether the fees so fixed and demanded by the private

unaided schools does or does not result in commercialization or

profiteering. To that extent, it is open to the State Authorities to

regulate the fee structure determined by the school. That regulation

should be at what stage need not detain us, for the time being. The

question will have to be examined in two ways. The first is as to:

Whether the State Authorities have power, under the existing law, to

regulate the school fees fixed by the Management of the unaided

minority school? The second facet of the said issue is: Whether the

revised fee structure proposed or notified by the school would result in

infraction of the provisions of the Act of 1987 and implicitly

tantamount to indulging in commercialisation and profiteering. In a

given case, if adverse finding is to be recorded in that behalf, it matters

not at what stage the State Authorities must intervene to regulate the

revised fee structure determined by the private school.

32. We shall first advert to the provisions contained in the

Secondary Schools Code. Here, we may notice that the question

whether the provisions of the Secondary Schools Code acquire

statutory force or are merely in the nature of administrative instructions

is already referred to the Full Bench of our High Court in the case of

::: Downloaded on – 09/06/2013 17:44:47 :::
50 191909

Shikshan Mandal & Ors. v. State of Maharashtra & Ors. in Writ

Petition No. 6727 of 2010 and other connected matters vide order dated

26th October, 2010. In the said decision, the Division Bench has noted

that the provisions of the Secondary Schools Code ought to be

construed as having statutory force. Nevertheless, we would proceed

to examine as to whether the provisions of the Secondary Schools Code

can be the basis to hold that the Deputy Director was competent to

examine the question of justness of the fee structure proposed or

notified by the School Management.

33. At the outset, the provisions in the Secondary Schools

Code-2002 can govern only secondary or higher secondary schools.

The grievance regarding fee structure of primary school cannot be the

subject-matter before the Authority under the Secondary Schools Code.

Chapter II of this Code deals with matters of Recognition, Organisation

and Management of schools. Section VI thereof deals with matters

concerning Fees and Free-studentships. Rule 49.1 envisages that

school shall charge only standard rates of “tuition fees”. The standard

rates of tuition fees are prescribed in different stages / areas of the

State, as referred to in Rule 49.2. Rule 49.3, which is relevant for us,

envisages that the unaided schools may be allowed to charge tuition

::: Downloaded on – 09/06/2013 17:44:47 :::
51 191909

fees at rates higher than the standard rates, with the previous approval

of the Director. Rule 50.6 prescribes items on which term fees can be

expended. None of the items referred to therein provide for expenses

towards buildings rent. The other relevant provisions in the Secondary

Schools Code in respect of school fees and term fees can be found in

Chapter IV, in Section I. This chapter deals with matters pertaining to

Grant-in-aid. In that sense, the provisions contained in this chapter

may not be directly attracted to unaided private minority school. Rule

89.1 contained in Section I of this chapter provides for items of

expenditure held admissible for grant-in-aid as listed in Schedule A,

and those held inadmissible for grant-in-aid as listed in Schedule B.

Insofar as the item of expenses towards rent, taxes and insurance,

which is part of Schedule A framed under Rule 89.1, being expenditure

admissible for grant-in-aid to aided and recognised non-Government

Secondary Schools. Clause 2 of Schedule A provides for the amount

spent towards rent, which can be granted to the aided school as grants.

The said provision reads thus:-

“2. Rent, taxes and Insurance :

(a) Rent :

(i) Reasonable rent for the school building provided the rent is
actually paid and a certificate regarding reasonableness is
obtained from the Executive Engineer.

::: Downloaded on – 09/06/2013 17:44:47 :::

52 191909

(ii) In the case of schools accommodated in rent tenements of

the Maharashtra Housing Board the rent charged by the
Board of such tenements should be considered as
reasonable and such school should not be required to

produce in addition any certificate regarding
reasonableness of rent in respect of such tenements from the
concerned, Executive Engineer (Public Works and Housing
Department) of Government.

(G.R.E.S. and S.W.D. No. GAC. 1072/11986/E of 8th

February 1972)

(iii) The portion of the school building not covered by the
building grant (already paid) means the portion, the cost of
which, is arrived at after deducting the actual amount of

building grant paid by government from the total cost of the
building.

Example : The total cost of a school building is Rupees
one lakh. It is assumed that a building grant of Rs.20,000/-
was paid by Government to the school for construction of
the school building and the remaining amount of Rs.80,000/-

was collected from donations and/or their own fund and/or
loans from Government and/or from any other source the
portion worth Rs. 80,000 will thus be not covered by the
building grant and 71/2 percent of this cost (Rs.80,000)
would be admissible as rent for maintenance grant, provided

the Executive Engineer of the area concerned certifies that
the amount of rent so charged is reasonable.

(iv) In the case of building owned by a school, a reasonable
nominal rent to be calculated on the following basis namely.

(a) 7 ½ of the capital value of the building plus Municipal
taxes :

(b) Six percent of the cost of the site on which the building
is constructed; plus ;

(c) 10 ½ percent of the cost of sanitary fittings and water
supply fittings of the building.

Provided the Executive Engineer, Zilla Parishad/ Executive

Engineer Public Works Department in Greater Bombay
having jurisdiction certifies that the amount of rent charged
is reasonable. Where site of construction of school building
was granted by government to a management free of charge,
that is without any occupancy price, the question of any rent
on the cost of the site would obviously not arise.
(G.R. No. GAC – 1079/425/30-37 Dt. 19/5/1979)

(v) Where a school is located in a building owned by the
management and the building was built from donations, its

::: Downloaded on – 09/06/2013 17:44:47 :::
53 191909

own funds or from loans, whether from Government or

others and Government has not paid any grant towards the
cost of construction, an amount not exceeding 7 ½ percent
of the cost incurred as is certified by the Executive Engineer

as reasonable rent.

(vi) Expenditure on account of the rent of school building for
which loan has been advanced by Government according to
the usual rates in that behalf during the repayment of loan

and also thereafter.” (emphasis supplied)

34. As per this provision, the school is obliged to furnish

certificate regarding reasonableness of rent for the school building to

be obtained from the Executive Engineer so as to become entitled for

reimbursement by way of grants. To the extent of the certificate so

given by the Executive Engineer, the school would become entitled for

grants, provided the school has actually paid that amount as rent.

Schedule B vide Rule 89.1 regarding list of items of expenditure

inadmissible for grant-in-aid also makes provision in respect of the

amount spent by the school towards building rent of the school. Clause

2(a) thereof reads thus:-

“Rent, taxes and Insurance:

(a) Rent

(i) The rent charged for portion of a school building for
which a building grant was paid by Government.

(ii) Charges on account of rent for any part or parts of the
building or buildings used for residential purposes for
hostels.”

::: Downloaded on – 09/06/2013 17:44:47 :::

54 191909

35. On perusal of these provisions, there can be no doubt that the

norm prescribed therein is to determine the reasonableness of the

amount towards rent of the school building, so as to reckon the same

for grant or non-grant of Grant to the aided school. There is nothing

wrong in applying the principle underlying the above guidelines for

determining the reasonableness of the fee structure proposed or notified

by private unaided school in larger public interests. If the amount

spent by the private unaided school towards school buildings rent

appears to be exorbitant or unacceptable, to that extent, the State

Authorities would be competent to exclude the excess amount and

approve the fee structure proposed or notified by the private unaided

school by excluding the excess amount towards buildings rent as

unjust. The effect of such finding would be that the excess amount

claimed in cash or kind to recover the expenses incurred under the head

“Buildings Rent” by the school from the students as part of fees, even

if actually incurred by the school, will have to be treated as unusual

expenditure incurred by the school. In that case, the school cannot

recover such unusual expenditure incurred by the school from the

students in the name of fees. Such declaration and direction can be

issued by the State Authorities. The Authority referred to in Rule 49.3,

::: Downloaded on – 09/06/2013 17:44:47 :::
55 191909

therefore, would be competent to disapprove the fee structure proposed

or notified by the Management of the unaided School on the same

analogy of admissible and inadmissible Building Rent of the aided

School provided for in the Schedules referred to above.

36. The petitioners / Management, however, relying on the

decision in the case of State of Maharashtra v. Lok Shikshan

Sanstha, AIR 1973 SC 588, para 10, would contend that reliance

cannot be placed on the provisions of the Secondary Schools

Code-2002, as the same have no statutory force. Assuming that this

argument is correct, the question under consideration can be

conveniently answered with reference to the provisions of the

Capitation Fee Act of 1987. The provisions of the said Act are not

subject-matter of challenge in the present petitions. As a mater of fact,

the Apex Court in T.M.A. Pai’s case had occasion to consider the

question which arose before it also with reference to the provisions of

the said Act. We would proceed on the assumption that the

Management of the School need not take prior approval of the State

Government or any other Authority of the State before introducing the

fee structure determined by it. But such fee structure must adhere to

the mandate of the Capitation Fee Act of 1987. We say so because the

::: Downloaded on – 09/06/2013 17:44:47 :::
56 191909

Preamble of the Act expresses the legislative intent behind enactment

of the Act of 1987. It is an Act to prohibit collection of capitation fee

for admission of students to, and their promotion to a higher standard

or class in, the educational institutions in the State of Maharashtra and

to provide for matters connected therewith. This Act was enacted

because of the past experience of undesirable practice followed by the

private educational institutions to large-scale commercialisation of

education which was not conducive to the maintenance of educational

standards. The Act intends to effectively curb the evil practices, and

prohibit collection of capital fee in the public interest. The term

“capitation fee” has been defined in Section 2(a) which reads thus:-

“2. Definitions-

In this Act, unless the context requires otherwise,-

(a) “Capitation fee” means any amount, by whatever name
called, whether in cash or kind, in excess of the prescribed

or, as the case may be approved rates, of fees regulated
under section 4;” (emphasis supplied)

37. Thus, any amount, by whatever name called, collected by the

unaided institutions in cash or kind in excess of the “approved rates of

fees” regulated under Section 4 is impermissible. We may note that the

legislature has used two expressions in Section 2(a), i.e., “prescribed”

::: Downloaded on – 09/06/2013 17:44:47 :::

57 191909

and “approved.” The expression “prescribed” is ascribable to aided

institutions, and, on the other hand, term “approved” governs the unaided

institutions. We shall elaborate this while considering the purport of

Section 4 in particular sub-section (2) thereof. Section 2(aa) defines term

“Deputy Director” and means the Deputy Director of Education or any

officer so designated as such by the State Government working under the

specified Authority. Section 2(b) defines the term “Educational

institution”. There can be no dispute that the petitioner-school will be

covered by this expansive definition. Section 2(c) defines the term

“Local Authority”. Section 2(d) defines the term “Management”. In the

present case, clause (iv) of the said provision will be applicable, as the

petitioner-school is neither managed by the State Government or a local

authority or by a university. The term “Minority education institution” is

defined in Section 2(e). Section 2(f) defines the term “Prescribed” and

means prescribed by rules made under this Act. Section 2(g) defines the

term “Rules” and means the Rules made under this Act. Section 2(h)

defines the term “University”.

38. Section 3 stipulates that demand or collection of capitation

fee is prohibited.

::: Downloaded on – 09/06/2013 17:44:47 :::

58 191909

39. The relevant provision to examine the controversy on hand

is Section 4 of the Act. It postulates that the State Government is

competent to regulate the tuition fee or any other fee that may be

received or collected by any educational institution for admission to, and

prosecution of study in any class or any standard or course of study of

such institution in respect of any class of students. Thus, there can be no

doubt that the State Government has the power to regulate the fees of

even unaided private minority institution to the extent of the fees

received or collected by educational institution which partakes the

character of capitation fee. Sub-section (2) of Section 4 deals with the

fees to be regulated by the State Government under sub-section (1).

There is a marked distinction between the language used in clauses (a)

and (b) of sub-section (2) of Section 4 of the Act. While dealing with

the case of aided institutions, the expression used is “prescribed” by a

University or State Government, as the case may be. On the other hand,

in the case of unaided institutions, with which we are concerned, the

expression used is “the State Government may approve”. Clause (a)

thereof is not applicable to our case, as it deals with the case of the aided

institutions. Clause (b) of sub-section (2) is of some significance, and

reads thus:-

::: Downloaded on – 09/06/2013 17:44:47 :::

59 191909

“(b) in the case of the un-aided institutions, having regard to

the usual expenditure excluding any expenditure of lands
and buildings or on any such other items as the State
Government may notify, be such as the State Government

may approve:

Provided that, different fees may be approved under clause

(b) in relation to different institutions or different classes or
different standards or different course of studies or different

areas.” (emphasis supplied)

40. On perusal of this provision, it is evident that the unaided

institutions can receive or collect fees, to compensate the “usual

expenditure” incurred by it as approved by the State Government.

No more and no less. The expenditure on lands and buildings or any

such other items as the State Government may notify is plainly excluded

from being charged in the form of fees – not being usual expenditure.

Further, the expression “on any such other items as the State

Government may notify” will have to be read ejusdem generis with the

expression “excluding any expenditure of lands and buildings”. What is

significant to note is that the State Government has the power and

authority to approve the fees fixed by the private unaided institutions.

The term “approve” will have to be construed as enabling the State

Government to regulate the fees, by disallowing the components of

expenses incurred by the school on items other than usual expenditure.

Proviso below clause (b) in Section 4(2) is an indication that the approval

::: Downloaded on – 09/06/2013 17:44:47 :::
60 191909

of fees fixed by the school should be accorded on case to case basis by

the State Government.

41. Although the expression “usual expenditure” has not been

defined in the Act of 1987, the purport of the said expression can be

culled out from sub-section (3) of Section 4 of the Act. The said

provision postulates that the fees to be prescribed or approved under

sub-section (2) shall include the items referred to therein. Notably, the

expenditure incurred by the school towards buildings rent is not

mentioned as one of the items in sub-section (3). Sub-section (3) of

Section 4 reads thus:-

“4. Regulation of fees.-

(1) …………….

(2) ……………

(3) The fees, to be prescribed or approved under sub-section (2)

shall include the following items, namely :-

(a) Tuition fees, whether on term basis or monthly or yearly
basis;

(b) Term fee per academic term;

(c) Library fee and deposit as security per year or for the entire
course ;

(d) Laboratory fee and deposit as security per year or for the
entire course;

(e) Gymkhana fee on yearly basis;

(f) Caution money for the entire course ;

::: Downloaded on – 09/06/2013 17:44:47 :::

61 191909

(g) Examination fee, if any, per year or for the entire course ;

(h) Hostel fee, Messing charges, if these facilities are provided,
whether on term basis or on monthly or yearly basis ;

(i) Any such other fee or deposit as security or amount for
other item, as the State Government may approve.”

42. Sub-section (4) stipulates that the fees regulated under this section

shall ordinarily remain in force for a period of three years and the State

Government shall appoint a committee of persons who, in the opinion of

the State Government, are experts in educational field for taking a review

of the fee structure and may, after considering the report of the

Committee, revise the fees if it considers it expedient to do so.

43. Sub-section (5) of Section 4 obligates the educational

institution or management to issue an official receipt for the fees or

deposits or any other amounts collected for any purpose, which shall be

specified in such receipt.

44. On conjoint reading of definition of “capitation fee” in

Section 2(a) read with Section 4 of the Act, it is obvious that the fees to

be fixed by the school must consist of only usual expenditure and of

items referred to in sub-section (3) of Section 4 of the Act. Any other

::: Downloaded on – 09/06/2013 17:44:47 :::
62 191909

amount received or collected by the school / Management, by whatever

name called, would tantamount to receiving capitation fee. As

aforesaid, expression “usual expenditure” occurring in Section 4(2)(b) is

not defined in the Act. Term “usual” would mean ordinary or

customary. The term “ordinary” would mean normal and expected, and

“necessary” means appropriate and helpful. Thus, the ordinary and

necessary expenses or operating expenses incurred by an organisation

engaged in “trade or business” would be on items such as rent, wages,

utilities and similar day-to-day expenses as well as taxes, insurance and a

reserve for depreciation. Education, whether for charity or for profit, is

an occupation. It cannot be equated to a trade or business. A priori, the

school management cannot claim whole amount spent by it towards

buildings rent from its students, unless so approved by the State

Government. The State Government, while considering the proposal for

approval of the said expenditure incurred by the school management for

the relevant period, may approve such amount which, in its opinion,

would be “reasonable” and “appropriate” amount to be recovered by the

management from its students. It is one thing to say that the

management may spend amount towards buildings rent as per the

prevailing market rate therefor, if the building in which the school is

situate is not owned by the school. Since the State Government is

::: Downloaded on – 09/06/2013 17:44:47 :::
63 191909

competent to approve the amount of usual expenditure, which the school

can be permitted to recover from its students by way of fees, the

concomitant is that the State Government is competent to approve the

entire amount spent by the management / school towards buildings rent

as it is or only portion thereof as reasonable and appropriate amount to

be recovered from the students. While examining the said question, the

State Government would be free to take into account the grievance of the

parents that the devise adopted by the management and the school was to

make profit by paying huge amount of Rs.2.5 Crores in the name of

building rent, even though the Trust, which is running the school, is

managed by the same three persons who are the only directors and

shareholders of the private limited company. In other words, the payer

and the receiver would be the same by using the cloak of the Trust and

the Company. Those are matters which will have to be enquired into by

the State Government. Moreover, the State Government, while

approving the claim of the petitioner-school to allow them to recover the

amount spent by the school towards buildings rent, is free to apply the

principle underlying the guidelines specified in Schedules A and

framed under Rule 89.1 of the Secondary Schools Code to ascertain as to

what could be the reasonable amount allowed to be recovered by the

school from its students. According to the petitioners in view of the

::: Downloaded on – 09/06/2013 17:44:47 :::
64 191909

exposition in the case of Modern School Vs. Union of India reported in

(2004) 5 SCC 583 paras – 20 & 21, the school cannot be denuded of its

entitlement to recover the expenditure incurred by it towards the

buildings rent. Moreover, the State of Maharashtra has never exercised

the power nor acted in exercise of the option conferred under Section 4

of the Capitation Fee Act as can be discerned from the dictum of the

Apex Court in the case of Father Thomas Shingare And Ors. vs State

Of Maharashtra And Ors. [ (2002) 1 SCC 758 para – 9, 10, 16 & 20

thereof ]. As aforesaid, whether the petitioners would be entitled to

claim reimbursement of the amount spent by them towards the buildings

rent in toto or only portion thereof is a matter which has to be considered

by the State Government in exercise of power under Section 4 while

granting approval to the petitioner school in that behalf. That power is

bestowed in the State Government by virtue of Section 4 of the said Act.

The validity of the said Section has not been challenged before us. The

fact that the State Government has so far not exercised that power can be

no impediment to do so hereafter. It is too elementary to state that there

can be no estoppel against the law. The decisions pressed into service by

the petitioners therefore will be of no avail.

45. Concededly, going by the plain language of Section 4 of the

Act, the power to approve or regulate fees of unaided institutions vests in

::: Downloaded on – 09/06/2013 17:44:47 :::
65 191909

the State Government alone. That power cannot be exercised by the

Deputy Director, unless the law permits delegation of that authority in

his favour. At the same time, however, by virtue of Section 6 of the Act,

the Deputy Director of Education and officer not below that rank

specially authorised by the State Government in that behalf has the

power to enter upon the premises of the educational institution or any

premises thereof or any premises belonging to the Management of such

institution in relation to such institution, if he has reason to believe that

some contravention of the provision of the Act of 1987 or the Rules

made thereunder has been committed by the institution. To unravel that

position, the said officer is entitled to examine any record, account or

register or documents belonging to such institution or of the

Management. By virtue of Section 10 of the Act of 1987, the provisions

of the Act have been given overriding effect to the provisions contained

in any other law for the time being in force or in any instrument having

effect by virtue of such law. The Deputy Director, in exercise of his

powers under Section 6 of the Act, therefore, would be competent to

enquire into the acts of commission and omission of the educational

institution or its Management, resulting in contravention of the

provisions of the Act. In that process, he is competent to examine the

records of the school and its Management to ascertain whether the fees

::: Downloaded on – 09/06/2013 17:44:47 :::
66 191909

collected by the school from its students were as per the norms

prescribed under the Act of 1987. The Act has come into force. The

powers bestowed on the specified State Authorities by virtue of the

provisions of the Act can be given effect to. To consummate the avowed

intention of the Capitation Fee Act, 1987, the authorities referred to in

the Act are obliged to discharge their duties specified therein.

46.

To put it differently, the directions issued by the Deputy

Director can be upheld on the reasoning that the same could be and

ought to have been issued by the Deputy Director in exercise of powers

under Section 6 of the Act. In the present case, all that the Deputy

Director has done is to call upon the petitioners to produce the certificate

of reasonableness of buildings rent issued by the Executive Engineer, as

is required in terms of guidelines specified in Schedules A and B framed

under Rule 89.1 of the Secondary Schools Code. Indeed, until the

question as to whether the provisions of the Secondary Schools Code has

the statutory force is answered by the Full Bench of this Court, which

issue has been referred by the Division Bench in terms of order dated

26th October, 2010 in Writ Petition No. 6727 of 2010, we may proceed

on the basis that the said provisions are administrative instructions. The

same have not been challenged by the petitioners. For that reason, the

::: Downloaded on – 09/06/2013 17:44:47 :::
67 191909

insistence of the Deputy Director, respondent No.2, to produce the

reasonableness certificate issued by the Executive Engineer cannot be

faulted. Since the petitioners failed to do so, respondent No. 2 proceeded

on the basis that the petitioners have failed to substantiate the claim

towards expenditure incurred on buildings rent during the relevant

period. If the order passed by the Deputy Director is so understood,

there is no reason to overturn the same. Indeed, it would be a different

matter if the petitioners were to obtain certificate of reasonableness of

buildings rent from the Executive Engineer, on the basis of which,

respondent No. 2 could have examined the matter in the context of the

provisions of Capitation Fee Act – that the demand of the school does or

does not result in commercialisation and profiteering. The other option

available to the petitioners was to immediately approach the State

Government for approval of its revised fee structure fixed by it, which

included the entire amount spent by the school towards buildings rent.

That proposal could have been examined by the State Government on its

own merits. None of the above options found favour with the

petitioners. The petitioners, instead, took the extreme position before

respondent No. 2 that the petitioners had complete authority in fixing

their own fee structure, which could include the entire amount spent by

the school towards buildings rent.

::: Downloaded on – 09/06/2013 17:44:47 :::

68 191909

47. In the context of sub-section (4) of Section 4 of the Act, it

was then argued that, once the approval to the fee structure since notified

by the school was already granted by the Accounts Officer, the same

could not be revised by another Authority under the Act. For that, the

State Government is expected to constitute a Committee of persons, who

are experts in educational field, for taking the review of the fee structure.

In the first place, the fact that the Accounts Officer had verified the

accounts of the school and accepted the same as it is or otherwise would

make no difference, nor that would enure to the benefit of the petitioners.

For, as per the provisions of the Capitation Fee Act, the State

Government alone has the power to approve the fee structure of the

private unaided school. Notably, the fee structure prescribed by the

petitioner-school has not been doubted by the Deputy Director in respect

of all other items, except the expenses claimed by the Management

towards buildings rent in the sum of Rs. 2.5 crores.

48. The petitioners have placed strong reliance on the decision

of the Division Bench of this Court in the case of Association of

International Centres and Members Foundation v. State of

Maharashtra, Writ Petition decided on September 1, 2010. In the said

::: Downloaded on – 09/06/2013 17:44:47 :::
69 191909

matter, the Court was called upon to examine the validity of

Government Resolutions dated 16th July, 2010 and 22nd July, 1997,

respectively. The subject-matter of the said Government Resolutions is

regulation of fees that are charged by unaided secondary schools. The

Court upheld the challenge on the sole finding that the said

Government Resolutions were not issued under Article 162 of the

Constitution of India, even though the same were affecting the right

guaranteed under Article 19(1)(g) of the Constitution to the private

educational institutions. The Court held that the said two Government

Resolutions were not issued under any provisions of the Act, nor can

be ascribed to exercise of power under Article 162 of the Constitution

by the State. Indeed, in the said decision, reference is made to Section

4 of the Capitation Fee Act, 1987. With reference to the said

provision, the Court went on to observe as follows:-

“Perusal of sub section (1) of section 4 shows that it confers power
on the State Government to regulate tuition fees and other fees that
can be charged by the Educational Institutions both aided and un
aided. Clause (a) of sub-section (2) of Section 4 lays down that the
fees to be charged by the aided educational institutions are to be

prescribed by the University or by the State Government. The term
“prescribed” is defined by Section 2(f) of the Act to mean
prescribed by the rules made under the Act. Thus so far as fee that
can be charged in aided institution is concerned, it to be fixed by the
State Government by framing rules in exercise of its rule making
power under the Act which is to be found in section 12 of the Act.
So far as unaided institutions are concerned, the State Government
has two kinds of power, one to specify items of expenditure which
are to be excluded from usual expenditure which is to be taken into
consideration while determining the amount of fees to be charged

::: Downloaded on – 09/06/2013 17:44:47 :::
70 191909

and secondly the power which is vested in the State Government is

to approve the fees that may be fixed by the unaided institutions.
The perusal of the G.R. Shows that it enumerates the items that are
to be taken into consideration while fixing the amount of fee. So far

as G.R. of 2010 is concerned, it merely reiterates what is stated in
1999 resolution in that regard. None of these resolutions provide for
the State Government approving fees fixed by the institutions on the
contrary, they contemplate the constitution of committee of which
State Government is not part for that purpose. The Act confers

power on the State Government to approve the fees fixed and there
is no provision in the Act which empower the State Government to
delegate its power of approving fees. Therefore, the provisions of
2010 G.R. in so far as it constitutes committee for approving the
fees is concerned it is clearly contrary to the provisions of the Act

and therefore, in our opinion, the State Government could not have
issued G.R. constituting committee for approving the fees.”

ig (emphasis supplied)

49. Suffice it to observe that the abovesaid decision pressed

into service is of no avail to the controversy raised in the present

petitions. In the present matters, the points in issue are whether the

Deputy Director was competent to dwell upon the question regarding the

fee structure prescribed by the petitioner-Management in terms of

Circular dated 19th March, 2008 and further, whether the provisions of

the Capitation Fee Act of 1987 would be attracted if the private school

was allowed to include the entire expenditure incurred by it towards

buildings rent as component of fees to be recovered from its students

during the relevant period. As a matter of fact even the above quoted

observations in this decision lend support to our finding that the State

Government has power to approve and resultantly regulate the fees fixed

::: Downloaded on – 09/06/2013 17:44:47 :::
71 191909

by the unaided schools. Similarly, the fact that the two Government

Resolutions dated 22nd July 1999 and 15th July, 2010 have been set aside

and declared as ultra vires also does not take the matter any further for

the petitioners.

50. Notably, the petitioners have neither challenged the

provisions of the Act of 1987 nor the subsequent Government

Resolutions issued by the State Government pursuant to the decision of

the Apex Court in T.M.A. Pai’s case.

51. Be that as it may, even if we are in agreement with the

submission of the petitioners that the Deputy Director has had no

authority to regulate the fees of private unaided institutions, by virtue

of express provision contained in Section 4 of the Capitation Fee Act;

or even going by the provisions of the Secondary Schools Code, viz.,

Rule 49.3, that power could be exercised only by the Director and not

the Deputy Director; coupled with the fact that the Apex Court has

expounded that the private unaided institutions have right to prescribe

their school fees, that does not mean that the fees prescribed by the

private unaided institutions cannot be made subject-matter of scrutiny

by the Deputy Director in exercise of his powers under Section 6 of the

::: Downloaded on – 09/06/2013 17:44:47 :::
72 191909

Act for the limited purpose of finding out as to whether any part of the

fees is in excess of the usual expenditure and of items referred to in

Section 4(3) of the Act and collection of such amount would attract the

mischief of capitation fee, sans approval thereto by the State

Government. In view of the legislative mandate of the Capitation Fee

Act of 1987, any amount received or collected by the school from the

students, by whatever name called, in excess of the expenses on usual

expenditure or permissible items referred to in Section 4(3) and as

approved by the State Government, will be deemed to be resorting to

commercialisation and profiteering and collection of capitation fee by

the school, for the purposes of the said Act. The petitioners, therefore,

cannot succeed on the technicalities that the two G.Rs. dated 22nd July,

1999 and 15th July, 2000 have been set aside or on the contention that

the Deputy Director has had no authority to regulate the fees as such.

The fact that the Deputy Director has adverted to those G.Rs does not

take the matter any further for the petitioners. The petitioners besides

assailing the impugned communications have also assailed the order

recording reasons passed by respondent No.2 dated 3rd August, 2010 on

the ground that the same is merely pretense of having recorded reasons

which are neither cogent nor clear as required by law. Such an order

cannot be countenanced in the light of exposition in Kranti Associates

::: Downloaded on – 09/06/2013 17:44:47 :::
73 191909

Private Ltd., and another vs. Masood Ahmed Khan and others,

[ (2010) 9 SCC 496 ]. This argument overlooks the underlying

principal reason recorded by respondent No.2 Deputy Director to hold

against the petitioners/school. He has observed that the petitioners,

having failed to produce the certificate of reasonableness of buildings

rent issued by the Executive Engineer, were not entitled to claim

reimbursement of the amount paid by them towards the buildings rent

from its students by way of fees. Similarly the argument of the

petitioners that the reasons have been supplemented by fresh reasons in

the shape of affidavits or otherwise cannot be taken into account

considering the dictum of the Apex Court in the case of Commissioner

Of Police, Bombay vs Gordhandas Bhanji [ (1952) SCC 16 para 11],

and in the case of Mohinder Singh Gill v. Chief Election

Commissioner [ (1978) 1 SCC 405 para 8 ]. Even this grievance of the

petitioners will have to be discarded as we are inclined to take the view

that the order of the Deputy Director will have to be understood as one

passed in exercise of powers under Section 6 of the Act to ascertain

whether there has been any contravention of the provisions of the

Capitation Fee Act. The opinion of the Deputy Director can be

ascribed to Section 6 of the Act of 1987 which, for all practical

purposes, has taken the view that the petitioner-educational institution

::: Downloaded on – 09/06/2013 17:44:47 :::
74 191909

cannot claim reimbursement of the expenses incurred by it towards

buildings rent in the sum of Rs. 2.5 cores, having failed to substantiate

that claim by producing certificate of reasonableness of rent issued by

the Executive Engineer. He has, therefore, re-worked the fee structure

by excluding the amount towards buildings rent incurred by the

petitioner-school, as not capable of being recovered from its students –

lest attract the provisions of the Capitation Fee Act. Implicit in the

reason recorded by respondent No.2 for reworking the fee structure of

the petitioner school is that if the petitioner school is likely to or was to

demand and accept the amount from its students to recompensate itself,

the entire buildings rent expenditure incurred by the school and paid to

the private limited company, sans approval in that behalf of the State

Government. That would result in commercialization and profiteering.

As aforesaid, we may not construe the said order of the Deputy

Director as strictly regulating the fees or one of approval thereof. Even

so, the conclusion reached by the Deputy Director, will have to be

upheld for the reasons mentioned hitherto. In that case, the petitioners

cannot recover any amount in excess of the amount reworked by

respondent No. 2, unless approved by the State Government.

52. The petitioners had argued that there is intrinsic material

to suggest that the impugned communication dated 3.7.2009 sent by

::: Downloaded on – 09/06/2013 17:44:47 :::
75 191909

respondent No.2 – Deputy Director was nothing but tentative view

expressed by him subject to finalization. However, the respondent No.

2 Deputy Director unilaterally proceeded on the basis that the said

communication was his final decision due to pressure brought by the

parents. To legitimize the said fallacy, the respondent No.2 issued

another communication dated 4.9.2009 that the fees determined in his

earlier communication dated 3.7.2009 has been treated as final for the

reason stated therein. In this context, it was argued that respondent No.

2 exercised the power of review which he did not have in law. Reliance

has been placed on the decision in the case of Dr. (Smt.) Kuntesh

Gupta Vs. Management of Hindu Kanya Mahavidyalaya, Sitapur

(UP) and others [ (1987) 4 SCC 525 para-11], and in the case of

Kalabharati Advertising Vs. Hemant Vimalnath Narichania and

others [ (2010) 9 SCC 437 paras-12 to 14 ]. In the first place, if the

Court were to accept the former contention of the petitioners that the

impugned communication dated 3.7.2009 was only a tentative opinion

expressed by respondent No.2, the argument that the effect of

communication dated 4.9.2009 issued by him was resorting to review

becomes unavailable. Further, it is not necessary to dwell upon the

disputed factual assertion that the opinion expressed by respondent No.

2 Deputy Director in his impugned communications was issued under

::: Downloaded on – 09/06/2013 17:44:47 :::
76 191909

dictation or influence of the parents. On perusal of the impugned

communication dated 3.7.2009, it is noticed that insofar as respondent

No.2 – Deputy Director is concerned, he has expressed his opinion

regarding the claim of the petitioner’s school in respect of buildings

rent. He further observed that the said opinion was to be given effect

subject to the decision of the committee constituted by the State. In the

communication dated 4.9.2009 respondent No.2 has noted that no

committee has been constituted by the State and for which reason the

views expressed by him in his communication dated 3.7.2009 be given

effect to. Understood thus, the grievance of the petitioners under

consideration is devoid of merits.

53. Going by Section 4 of the Capitation Fee Act, the State

Government alone is competent to approve the amount claimed by the

unaided school as usual expenditure so as to permit the school to

recover commensurate amount from the students by way of fees. If the

petitioners are keen that they should be allowed to recover the entire

amount spent by them towards buildings rent for the relevant period

from their students, they may have to pursue the matter before the State

Government for its approval. As aforesaid, the State Government

would be free to examine all aspects before taking final decision on the

::: Downloaded on – 09/06/2013 17:44:47 :::
77 191909

said proposal, including the grievance of the parents (such as

respondents No. 3 to 7) that the amount spent by the school towards

buildings rent is a subterfuge and devise to siphon off that amount,

which would eventually be received in the hands of three persons, who

are the only directors and shareholders of the private limited company

and also the only trustees of the Trust, which claims to have incurred

such expenditure. In other words, the payer and the receiver of the

stated expenses are the same persons under the facade or cloak of two

juristic persons. All contentions available to the respective parties may

have to be examined by the State Government on its own merits. We

are not expressing any opinion as to whether the petitioners are

entitled to claim recovery of entire amount spent by them towards

buildings rent from their students during the relevant period or

otherwise.

54. The private respondents were at pains to persuade us to

enquire into the validity of the permission granted by MHADA to

transfer the proprietary rights in the plot in favour of a private limited

company on which the building has been constructed, so as to reap

profit by recovering amount towards buildings rent from the petitioner-

school run by a public charitable Trust; as also the decision of the

::: Downloaded on – 09/06/2013 17:44:47 :::
78 191909

Charity Commissioner, which has enabled the public Trust to spend

such exorbitant amount towards school buildings rent in the sum of

Rs. 2.5 crores, on the argument that the said transfer as well as decision

of the Charity Commissioner were the outcome of misrepresentation

and fraud played by the petitioners. It is not necessary for us to

examine that contention in these petitions, for the view that we have

already taken. As and when the petitioner-school applies to the State

Government for approval to recover the actual expenses incurred by it

towards buildings rent from its students during the relevant period, that

plea will be available to the parents / students or otherwise can be gone

into by the State Authorities on their own and answered appropriately

in accordance with law. We, therefore, do not express any opinion in

that regard.

55. The petitioners had assailed the decision of the Deputy

Director on the ground that it is product of mala fide exercise of power

in fact and in law. Even this grievance, in our opinion, need not be

dealt with, considering the view already expressed by us hitherto.

Assuming that the impugned decisions of the Deputy Director were to

be treated as non est on this ground, that, by itself, would not permit the

petitioners to recover the entire amount spent by them towards

::: Downloaded on – 09/06/2013 17:44:47 :::
79 191909

buildings rent from their students during the relevant period, unless

approved by the State Government.

56. For the view that we have taken, the petitioners will have

to refund the portion of fees constituting expenses towards buildings

rent and, if the petitioners continue to receive or collect any amount

towards that head, by whatever name called, so as to recompense

themselves for the expenses incurred towards school buildings rent, it

would clearly attract the provisions of the Capital Fee Act, for which,

the school and its Management my have to face the legal consequences.

57. As a result, the petitioners may have to abide by the

opinion expressed by the Deputy Director in his impugned decision,

which means that the petitioner-school may be well-advised to recover

fees by excluding the expenses towards buildings rent for the relevant

period. Failure to abide by that opinion may invite suitable action

under the Capitation Fee Act of 1987 against the school and its

Management. We, however, express no opinion as to whether in the

fact situation of the present case, the State Government should approve

the expenses claimed by the petitioners towards buildings rent either as

a whole or only part thereof, in the context of the provisions of the

::: Downloaded on – 09/06/2013 17:44:47 :::
80 191909

Capitation Fee Act of 1987. All questions in that behalf are left open.

While parting, we would like to place on record that other incidental

issues were raised by the Counsel appearing for the respective parties

during the course of argument, as also reliance was placed on the

decisions in support of their contentions. However, in our opinion, it is

not necessary to burden this judgment with all those issues. Hence, we

have not elaborated on those issues or other reported decisions.

58. Suffice it to observe that the sum and substance of our

decision is that even though the private unaided school has discretion

to fix its own fee structure, it is open to the State Government to

regulate the same insofar as unusual expenditure within the meaning

of Section 2(a) read with Section 4 of the Capitation of Fee Act. As

and when the issue of recovery of any unusual expenses such as

exorbitant expenditure on buildings rent, is raised either by the parents

or it comes to the notice of the State Authorities and in spite of that, the

school continues to recover the disputed amount without taking

approval of the State Government, the Management of such school

would run the risk of legal action provided for in the Capitation Fee

Act. When such occasion arises, the Management of the school may

have only two options – first is to obtain approval of the State

::: Downloaded on – 09/06/2013 17:44:47 :::
81 191909

Government at the earliest opportunity for allowing it to recover the

disputed amount by way of fees from its students. The second is to

continue to recover the disputed amount stipulated by it as fees from its

students unabated and in which case the Management of the School

may run the risk of facing appropriate legal action under the provisions

of the Capitation Fee Act and other enabling enactments.

59.

In view of the above, we proceed to pass the following

order:-

ORDER

Both the petitions are disposed of on the above terms

with costs to be paid by the petitioners. Resultantly, in

absence of approval of the State Government permitting the

School to recover the expenditure from its students incurred

on buildings rent during the relevant period, the petitioners

are obliged to comply with the Court’s order dated 20th April,

2009. Ordered accordingly.

     MRS. MRIDULA BHATKAR, J.                     A.M. KHANWILKAR, J.




                                                  ::: Downloaded on - 09/06/2013 17:44:47 :::
 

Mangilal Jagrupji Jain vs Shri Bharat Shankarlal Dhakad … on 15 September, 2011

Bombay High Court
Mangilal Jagrupji Jain vs Shri Bharat Shankarlal Dhakad … on 15 September, 2011
Bench: Anoop V.Mohta
                                                   1                                cra-538-11.sxw


    dgm




                                                                                         
               IN THE  HIGH COURT OF JUDICATURE AT BOMBAY




                                                                
                        APPELLATE SIDE CIVIL JURISDICTION

                 CIVIL REVISION APPLICATION NO. 538  OF 2011




                                                               
    Mangilal Jagrupji Jain                     ....   Petitioner
          vs
    Shri Bharat Shankarlal Dhakad (HUF) & ors. ....    Respondents




                                                  
                                
    Mr. P. S. Dani for the petitioner.

    Mr. N.V. Walawalkar, Senior Advocate i/by Mr. Suresh M. Sabrad for 
                               
    respondent no.2. 


                                          CORAM:   ANOOP V. MOHTA, J.

DATE : September 15, 2011

ORAL JUDGMENT:

The Petitioner (Defendant No.3) is one of the purchaser, along

with the Plaintiffs (Respondents 1 to 4) of a property described in the

Agreement dated 29 December 2007 (the Agreement), executed with

Respondents 5 and 6 (Defendants 1 and 2). The Agreement reflects

that the Plaintiffs along with the Petitioner, as partners of M/s.

Mahavir Developers (the firm), entered into the agreement for

purchase of the property. As the Defendants failed to perform their

part, the present Suit is filed, in their individual capacity, for a

::: Downloaded on – 09/06/2013 17:44:14 :::
2 cra-538-11.sxw

specific performance based upon the agreement.

2 The Petitioner filed an application under Order VII, Rule 11 (d)

of the Code of Civil Procedure (CPC) for rejection of the plaint

basically on the ground that the Defendants executed the agreement

with the partnership firm namely, M/s.Mahavir Developers (the firm),

of which the Plaintiffs 1 to 4 are the partners. The firm is not

registered. Therefore considering Section 69(2) of the Indian

Partnership Act (Mah. Amendment), the suit as filed in the individual

capacity is not maintainable. The defence was that the Plaintiffs and

the Petitioner individually invested the amount and therefore in their

individual capacity entered into the transaction, though the document

reflects the name of the intended firm. It could not finalised and

registered till this date The learned Judge after hearing both the

parties, considering the averments made in the plaint and referring to

the provisions of law read with the judgments of the Supreme Court

rejected the said application. Therefore, the present Civil Revision

Application.

3 In view of this provision other party may apply for rejection of

the plaint if suit is barred by law based upon the basic averments in

::: Downloaded on – 09/06/2013 17:44:14 :::
3 cra-538-11.sxw

the plaint itself. The averments in the plaint also includes, as rightly

contended by the learned counsel appearing for the Petitioner, the

supporting and relevant documents filed with the same, at the

relevant time. There is no question of going to the defence/written

statement, filed or not. Even the reply stating the merits of the

matter filed to such application for rejection of the plaint may not be

necessary to consider merits of the matter in view of the object, nature

and scope and purpose of Order VII, Rule 11(d) of CPC.

4 The Apex Court in Vishnu Dutt Sharma vs. Daya Sapra (Smt)1

has elaborated the scope and purpose of the provision as follows:

“7 Order 7 Rule 11(d) of the Code of Civil
Procedure, 1908 (for short “the Code”) provides for
rejection of a plaint inter alia on the premise that the suit

was barred by any statute. Such an embargo in the
maintainability of the suit must be apparent from the
averments made in the plaint.

5 The Apex Court also in Popat and Kotecha Property vs. State

Bank of India Staff Association2 has elaborated the scope and

purpose of the provision as follows:



    1 (2009) 13 SCC 729
    2 (2005) 7 SCC 510


                                                          ::: Downloaded on - 09/06/2013 17:44:14 :::
                                                 4                               cra-538-11.sxw




                                                                                     
                 "23 Rule 11 of Order 7 lays down an independent 

remedy made available to the defendant to challenge the

maintainability of the suit itself, irrespective of his right to
contest the same on merits. The law ostensibly does not
contemplate at any stage when the objections can be
raised, and also does not say in express terms about the

filing of a written statement. Instead, the word “shall” is
used clearly implying thereby that it casts a duty on the
court to perform its obligations in rejecting the plaint
when the same is hit by any of the infirmities provided in

the four clauses of Rule 11, even without intervention of
the defendant. In any event, rejection of the plaint under

Rule 11 does not preclude the plaintiffs from presenting a
fresh plaint in terms of Rule 13.”

6 It is also necessary to consider at this stage the object and

purpose of Section 69(2) of the Indian Partnership Act, 1932 (Mah.

Amendment) and the effect of non-registration of firm and the

averments so raised along with the document filed on record, with a

view to see whether the impugned order is in accordance with law or

not. The consequence of such application is always goes to the root

of the Suit itself. If case is made out, the plaint needs to be rejected

at that stage itself.

7 In the present case, there is no serious dispute and basically in

view of the averments made in the plaint that the alleged partnership

firm was not registered on 29 December 2007 when the agreement in

::: Downloaded on – 09/06/2013 17:44:14 :::
5 cra-538-11.sxw

question was executed, though the parties have signed the

agreement/document as partners of the firm. The effect of non-

registration of such partnership firm just cannot be overlooked, but

subject to the averments made in the plaint only. It is very clear from

the averments read with the documents annexed to the plaint that the

Suit is filed for specific performance of the agreement in their

individual capacity, against the Respondents and the Petitioner.

Therefore, at this stage, from the averments it is clear that they have

not pleaded the specific performance of the agreement in the name of

the firm. The effect of such prayers and/or averments, the Court will

consider during the trial. But to say that such Suit is liable to be

dismissed, at this stage, based upon the principle of Order VII Rule

11(d) CPC as contended, in my view, is not correct. The submission

that the parties can have such oral partnership at any time and can be

registered at subsequent stage though cannot be disputed, yet in the

present facts and circumstances, that aspect just cannot be gone into

by overlooking the averments made in the plaint and the documents

on record, which nowhere deals with the aspect of the un-registered

firm. The intention and/or the object of reference of firm’s name

and what should be the consequence of filing of the suit in their

individual capacity also cannot be gone into at this stage merely on

::: Downloaded on – 09/06/2013 17:44:14 :::
6 cra-538-11.sxw

the basis of reply/submission so made by the learned counsel for the

Petitioner. All these facets need detail inquiry and evidence. It is

unregistered till this date in view of the disputes between the parties.

The submission revolving around Section 69(2) of the Indian

Partnership Act cannot be the foundation to reject the plaint, in the

present case.

8

The contention of the learned Senior Counsel appearing for the

Respondents, based upon the above judgments, therefore, supports

the impugned order on above facets. The reasoning given by the

learned trial Judge in this background cannot be stated to be bad in

law and/or contrary to the facts on record.

9 The judgment in Goverdhandoss Takersey vs. M. Abdul

Rahiman and anr.1 as cited by the learned senior counsel appearing

for the Respondent referring to Section 69(2) of the Indian

Partnership Act and the submission that in every matter, the plea of

non-registration of the firm that itself cannot be the foundation to

reject the plaint is also correct.There is also another facet that the Suit

filed by the alleged individual partners in their individual capacity

1 AIR (29) 1942 Madras 634

::: Downloaded on – 09/06/2013 17:44:14 :::
7 cra-538-11.sxw

cannot be dismissed under Order VII Rule 11(d) of CPC at this stage

of the proceedings at the instance of the Petitioner who was also one

of the signatories to the agreement and who has full knowledge that

the partnership was not registered or was not in existence at the

relevant time.

10 Resultantly, I see there is no reason to interfere with the

impugned order. The CRA is dismissed. There shall be no order as to

costs.

(ANOOP V. MOHTA, J.)

::: Downloaded on – 09/06/2013 17:44:14 :::

Rafia Sultana vs Mohd. Osman on 12 September, 2011

Bombay High Court
Rafia Sultana vs Mohd. Osman on 12 September, 2011
Bench: S. S. Shinde
                             1
                                                           cp464.10




                                                          
        IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                  
                   BENCH AT AURANGABAD.

             CONTEMPT POETITION NO.464 OF 2010
                             IN
               WRIT PETITION NO.2177 OF 2009.




                                 
     Rafia Sultana d/o Iqbal Ahemed Khan,
     age 42 years, occu. service,
     as Asstt. Teacher, Madarse Aamena Urdu,




                        
     Primary School, Nanded r/o
     H.No.5, Block No.24, Labour Colony,
             
     Nanded.                           ...PETITIONER.

              VERSUS
            
     1. Mohd. Osman s/o Mohd. Ismail,
     age major, occu. nil.
     r/o c/o Rahim Bhai Engineer,
     Parbhani, Tq. & Dist.
      

     Parbhani.

     2. The President
   



     Mohd. Osman s/o Mohd. Ismail,
     Madarse Noorul Uloom Edu. Society,
     Nanded,
     c/o Madarse Amina Girl Urdu Primary School,





     Makdom Nagar, Nanded,
     Tq. & Dist. Nanded.

     3 Sow. Salma Begum w/o Sk. Jahur,
     age major, occu. service,
     r/o c/o Madarse Aamena Urdu Primary School,





     Makdom Nagar,
     Nanded,
     tq. & Dist. Nanded.

     4 The Education Officer (Primary),
     Zilla Parishad,
     Nanded, Tq. & Dist. Nanded.        ...RESPONDENTS.




                                  ::: Downloaded on - 09/06/2013 17:43:54 :::
                                  2
                                                                  cp464.10

                            ...




                                                                 
     Shri G.R. Syed, Advocate for petitioner.
     Shri D.R. Kale, AGP for State.
     Shri S.P. Chapalgaonkar, Advocate for R.Nos.1 &




                                      
     2.
     Shri V.S. Panpatte, Adv. for R.No.4.
                            ...




                                     
                                     CORAM: S.S. SHINDE,J.

12th September, 2011.

ORAL JUDGMENT:

1.

This contempt petition alleges contempt /

willful disobedience of the order passed by

this Court in Writ Petition no. 2177/2009 on

12th November, 2009. In para 3 of the said

order, the undertaking given by the alleged

contemnor, Mohmmad Osman Mohmmad Ismail is

recorded by this Court.

2. The petitioner herein was appointed on

16th June, 1993 as Assistant Teacher in Madarse

Aamena Urdu Primary School , a primary school

run by the respondent No.2 herein. It is the

case of the petitioner that she was

subsequently promoted as Head Mistress. It is

::: Downloaded on – 09/06/2013 17:43:54 :::
3
cp464.10

further case of the petitioner that on 20th

November, 2007, all of a sudden, the

respondent No.1 issued letter to the

petitioner and informed that, as per the

resolution of the society passed on 19th

November, 2007, she was reduced in rank from

the post of Head Mistress to the post of

Assistant Teacher and, petitioner was directed

to hand over the charge of post of Headmaster

to the respondent No.3.

. On 11th February, 2007, the petitioner

filed appeal u/s 9 of the Maharashtra

Employees of Private Schools (Conditions of

Service) Regulation Act, 1977 (for short,

referred to as “MEPS Act”), before the School

Tribunal at Latur. The School Tribunal

dismissed the said appeal. Aggrieved by said

judgment and order, the petitioner filed Writ

Petition No. 4627/2008 before this Court. By

order dated 08.09.2008, this Court was

pleased to allow the said writ petition and

::: Downloaded on – 09/06/2013 17:43:54 :::
4
cp464.10

remanded the matter back to the School

Tribunal, Latur.

. After remand, the School Tribunal, Latur

allowed the appeal filed by the petitioner

herein on 18.2.2009 and directed the

respondents No.1 and 2 to reinstate the

petitioner herein i.e. appellant therein, on

the post of Head Mistress with continuity of

service from 20.11.2007.

3. Being aggrieved by the judgment and order

passed by the School Tribunal, Latur in Appeal

No.75/2007, the respondents NO.1 and 2 herein

preferred Writ Petition No.2177 of 2009 before

this Court. This Court on 12th November, 2009

issued Rule and continued the interim relief

in terms of prayer clause `C’ of the Petition,

which was granted earlier. While hearing the

above mentioned writ petition, the grievance

was made by the respondent No.4 in the writ

petition i.e. petitioner herein, that she is

::: Downloaded on – 09/06/2013 17:43:54 :::
5
cp464.10

not being paid the salary of Assistant Teacher

also. This Court in para 3 of the order

passed in Writ Petition No.2177 of 2009

recorded the statement of the Advocate

appearing for the alleged contemnor. Para 3

of the said order reads, thus:

“3. Grievance is made by learned Counsel
for respondent NO.4 that she is not being
paid salary as Assistant Teacher also.
Mr. Dhorde, learned Counsel for the

petitioner states that the unpaid amount
of salary would be disbursed within six
weeks from today and the management will
continue to pay to respondent No.4 salary

admissible to the post of Assistant
teacher.”

4. This contempt petition has been filed by

the petitioner since the alleged contemnor

respondent No.1, who is also head of

respondent No.2, did not comply with the

undertaking given before the learned Single

Judge of this Court through his Advocate. The

salary of the petitioner remained unpaid.

Therefore, this contempt petition has been

filed.

::: Downloaded on – 09/06/2013 17:43:55 :::
6

cp464.10

5. When this contempt petition was heard on

15th December, 2010, this Court issued notices

to the respondents No.1 and 2, which was made

returnable on 9th February, 2011. Since the

service of notice was awaited, the matter was

adjourned to 17th February, 2011. On

17.02.2011,ig this Court heard

Counsel for the respective parties and passed
the learned

following order :

“The respondent’s Advocate sought
adjournment. Adjournment granted as a last

chance. The respondents shall file
affidavit in respect of compliance of the
order.

3. Stand over to 4th March, 2011.”

In spite of this order, no affidavit-in-

reply was filed by the respondents till 4th

March, 2011. The affidavit on behalf of

respondent nos. 1 and 2 came to be filed on

7th March, 2011.

::: Downloaded on – 09/06/2013 17:43:55 :::
7

cp464.10

6. From careful reading of the said

affidavit, the sum and substance of the

contention of the alleged contemnor appears to

be that due to unavailability of the necessary

record, and since the record was with the

petitioner, he could not take steps to submit

unpaid salary bills of the petitioner to the

Education officer (Primary), Zilla Parishad,

Nanded.

7. In reply to the affidavit filed by the

alleged contemnor, the petitioner has filed

rejoinder affidavit on 6th April, 2011. On

4th May, 2011, the matter was taken up for

hearing by this Court, on said date this Court

directed the respondents No.1 and 2 to remain

present on the next date of hearing.

Thereafter, presence of the respondent nos. 1

and 2 was never dispensed with.

. On 15th June, 2011, the matter was again

listed for hearing, affidavit on behalf of

::: Downloaded on – 09/06/2013 17:43:55 :::
8
cp464.10

respondents No.1 and 2 was tendered across the

Bar, and said was taken on record.

. It was stated in para No.1 of the said

affidavit that the alleged contemnor will

submit bills regarding unpaid salary of the

petitioner within three days from 15.6.2011 to

the
respondent No.4 Education

(Primary), Zilla Parishad, Nanded and he will
Officer

take necessary steps to get the said amount

disbursed by Respondent No.4 on or before

24.6.2011 and in the event the said amount is

not disbursed before 24.6.2011, he will

deposit the said amount within one week from

24.6.2011 in this Court.

. After perusal of the said affidavit dated

15th June, 2011, this Court by speaking order

adjourned hearing of the contempt petition to

4th July, 2011. However, it appears that the

matter was not taken up for hearing on the

said date and therefore, the learned Counsel

::: Downloaded on – 09/06/2013 17:43:55 :::
9
cp464.10

for the petitioner mentioned the matter on 7th

July, 2011 and same was then listed on 11th

July, 2011.

8. On 11th July, 2011, this Court heard the

learned Counsel appearing for the petitioner

and also to the learned Counsel appearing for

the respondents No.1 and 2 at length. This

Court passed the following order:

“1. Heard the learned counsel
appearing for the petitioner and learned

counsel appearing for respondents No.1
and 2. The learned counsel appearing

for respondents No.1 and 2 submits that,
in spite of his sincere efforts to
impress upon the respondents No.1 and 2
to comply the orders of this Court, they

are not listening him. The learned
counsel further submits that, he prays
discharge from the matter. He has also
sent notice to respondents No.1 and 2 by
registered post A.D., copy of which is
placed on record.

2. This Contempt Petition was
heard by this Court on 15.6.2011. The
affidavit was filed on behalf of
respondents No.1 and 2 by one Mr.
Mohammad Osman s/o Mohd. Ismail, stating
therein that he will submit the bills
regarding unpaid amount of salary to the
petitioner within three days from

::: Downloaded on – 09/06/2013 17:43:55 :::
10
cp464.10

15.6.2011 to the respondent No.4 –

Education Officer (Primary), Zilla
Parishad, Nanded and he will take steps

to get the said amount disbursed by the
respondent No.4 on or before 24.6.2011.
It is further stated in para No.2 of the
said affidavit that, in the event the
said amount is not disbursed before

24.6.2011, he will deposit the said
amount within one week from 24.6.2011 in
this Court.

It is admitted position that,
no such amount has been deposited in the

registry of this Court. The learned
counsel for the petitioner submits that,
the bills which are submitted by the
respondent to the Education Officer are

returned back by the Education Officer
with remarks that the bills are not in
accordance with the Sixth Pay
Commission.

3. This Contempt Petition is filed

alleging disobedience of the order
passed by the learned Single Judge of
this Court on 12.11.2009 in Writ
Petition No.2177/2009. After

considering the grievance of the
petitioner in the said Writ Petition,
and after hearing the respondents, this
Court, in para No.3 of the order dated
12.11.2009, held:

“3. Grievance is made by
learned counsel for respondent
No.4 that she is not being
paid salary as Assistant
Teacher also. Mr. Dhorde,
learned counsel for the
petitioner states that the
unpaid amount of salary would
be disbursed within six weeks

::: Downloaded on – 09/06/2013 17:43:55 :::
11
cp464.10

from today and the management

will continue to pay to
respondent No.4 salary

admissible to the post of
Assistant Teacher.”

4. In spite of assurance given to

this Court in aforesaid Writ Petition by
the respondents No.1 and 2 that the
unpaid amount of salary would be
disbursed within six weeks to the

petitioners from the date of passing of
the order by the learned Single Judge on

12.11.2009, no amount towards unpaid
salary was disbursed and that gave rise
to filing this Contempt Petition. As
stated earlier, this Contempt Petition

was heard by this Court on 15.6.2011
when the respondent No.1 filed affidavit
on behalf of respondents No.1 and 2 on
oath that in case no unpaid salary is

paid to the petitioner before 24.6.2011
by the Education Officer, he will

deposit the amount in the registry of
this Court within a week from 24.6.2011.
As stated earlier, the respondents No.1
and 2 have not complied the statement

made before this Court in the month of
November 2009 or they have not complied
the assurance given to this Court by
filing affidavit. Hence, this is a case
of aggravated contempt. The respondent
Nos.1 and 2 have chosen to remain

absent. Issue non-bailable-warrant to
the respondents No.1 and 2 returnable on
27th July 2011. The Superintendent of
Police, Parbhani to see that the non-
bailable warrant issued by this Court is
executed on the respondents No.1 and 2
and they are produced before this Court
on 27th July 2011 at 10.30 a.m. by the
concerned Police Station Officer.

::: Downloaded on – 09/06/2013 17:43:55 :::
12

cp464.10

5. However, it will be open
for the respondents No.1 and 2 to

file appropriate application, in
case they deposit entire amount
towards unpaid salary to the
th
petitioner on or before 15 July
2011, to apply for dispensing with

their presence or for recalling the
order of issuance of non-bailable
warrant if the said warrant is not
already executed on them.”





                              
            By   
     Superintendent
                   order    dated

                             of
                                     11th

                                    Police,
                                               July,

                                                     Parbhani
                                                             2011,        the

                                                                          was
                

directed to execute non bailable warrant on

the alleged contemnor and produce him before

this Court. The alleged contemnor chose to

remain absent on 11th July, 2011 and,

therefore, this Court was constrained to issue

non bailable warrants against the respondent

nos.1 and 2. There was also non compliance of

the affidavit given by the alleged contemnor

on 15th June, 2011 and the Advocate for the

contemnor made a statement before this Court

that in spite of his sincere efforts to

impress upon the alleged contemnor to comply

with the orders of this Court, the alleged

::: Downloaded on – 09/06/2013 17:43:55 :::
13
cp464.10

contemnor is not listening to him. The learned

Advocate appearing for the alleged contemnor

also prayed for discharge and also made a

statement that notice has been sent to the

alleged contemnor by Regd. Post A.D. for such

discharge from the matter.

9.
In the order dated 11th July, 2011 itself,

direction was given to the Superintendent of

Police to produce the respondent nos.1 and 2

i.e. alleged contemnor, on 27th July, 2011 at

10.30 a.m. In pursuance to the said order, it

appears that the Superintendent of Police made

sincere efforts to comply the order/direction

of execution of non bailable warrant on the

alleged contemnor. However, according to the

Superintendent of Police, Parbhani, the

alleged contemnor was absconding and is not

traceable.

. The Superintendent of Police, Parbhani

Smt. Maithali Jha, filed detailed affidavit

::: Downloaded on – 09/06/2013 17:43:55 :::
14
cp464.10

on 5th August, 2011. In para 4 of the said

affidavit, it is stated that she had taken

steps for compliance of the order passed by

this Court on 11.07.2011. She formed two

squads consisting of Police Inspector, Police

Sub Inspector and other ten police personal

and specific directions were given to the

squads ig established for

execution of non bailable warrant that they
the purpose of

should take all efforts and arrest the

respondent No.1 and produce him before this

Court. It further appears that the inquiry

was made with the nearest relatives of the

alleged contemnor on 26.6.2011. However, the

police officers could not get any useful

information from the nearest relatives. One

person namely Sk. Jafar Sk. Chand was also

known to the alleged contemnor and he was

asked to inform the whereabouts of the alleged

contemnor. However, he was not able to tell

the whereabouts of the alleged contemnor.

::: Downloaded on – 09/06/2013 17:43:55 :::
15

cp464.10

. It further appears that the police squad

collected information of the mobile phone of

the alleged contemnor and then they tried to

find out the location and whereabouts of the

alleged contemnor. They also inquired with

the staff of Aamena Urdu Primary School school

on 29th July, 2011 and they got some

informationig that the alleged

contact one of the staff members namely
contemnor did

Mr.

Abdul Hai from his mobile phone. Then the

squad proceeded to find out the location of

the alleged contemnor. It further appears

that the department has taken all the efforts

to trace out the alleged contemnor. However,

they could not succeed in their attempt since

the alleged contemnor was absconding and was

not making himself available to the

jurisdiction of this Court. Further time was

granted to the Superintendent of Police,

Parbhani on 27th July, 2011 till 1st August,

2011. However, further attempt of the police

department to trace out the alleged contemnor

::: Downloaded on – 09/06/2013 17:43:55 :::
16
cp464.10

failed.

10. The Superintendent of Police remained

present before this Court on 8th August, 2011.

On her request further time was granted and

matter was kept on 11th August, 2011. On said

date Advocate Mr.P.N. Kalani appeared for the

alleged contemnor and tried to submit that,

the alleged contemnor is ready to deposit some

amount. However, he was unable to tell the

whereabouts of the alleged contemnor and he

showed total ignorance about the whereabouts

of the alleged contemnor.

11. On 25th August, 2011, again the matter was

taken up for hearing and time was granted to

the Superintendent of Police, Parbhani. From

time to time, affidavits and documents are

produced on record showing that the police

authorities have made sincere efforts to

execute non bailable warrant issued by this

Court on Mohd. Osman S/o Mohd. Ismail.

::: Downloaded on – 09/06/2013 17:43:55 :::
17

cp464.10

However, their efforts failed because the

respondent alleged contemnor was hiding

himself and was not traceable.

. On 6th September, 2011, the matter was not

on Board because on earlier date of hearing,

same was adjourned to 9th September, 2011.


     The       
            learned     AGP    mentioned

brought to the notice of this Court that,
the matter and

the

police department is successful in arresting

the respondent No.1 Mohd. Osman s/o Mohd.

Ismail – alleged contemnor and he is brought

before this Court. On mentioning by the

learned AGP and also the Advocate for the

petitioner, the matter was taken up at 4.30

p.m. Even, the Advocate for the alleged

contemnor was present. This Court on 6th

September, 2011 passed the following order:

“Not on board. Matter is mentioned
by learned A.G.P., taken on board.

2. Learned A.G.P. appearing for
the State makes a statement that, in

::: Downloaded on – 09/06/2013 17:43:55 :::
18
cp464.10

pursuant to the orders passed by

this Court earlier, respondent No.1
Mohammed Osman s/o Mohd. Ismail is

arrested and brought before this
Court by the Police Inspector, Crime
Branch, Parbhani.

3. This Court on 11-07-2011

issued N.B.W. to respondent No.1
Mohammed Osman s/o Mohd. Ismail
which was made returnable on
27-07-2011. The Superintendent of

Police, Parbhani was directed to
execute the N.B.W. on the said

respondent and to produce him before
this Court on 27-07-2011.

. On 27-07-2011 it was reported
by the Superintendent of Police,
Parbhani that respondent Mohammed
Osman s/o Mohd. Ismail is hiding
himself and is not traceable. By

order dated 27-07-2011 further time
was granted to the Superintendent of

Police,Parbhani to take appropriate
steps to execute the N.B.W. The
matter was kept on 01-08-2011. On
01-08-2011 again it was reported by

the Superintendent of Police,
Parbhani that, in spite of their
sincere efforts, they were not able
to trace out the respondent. On
01-08-2011 this Court again directed

the Superintendent of Police,
Parbhani to continue search of the
respondent and produce him before
this Court on his arrest. The
matter was adjourned to 08-08-2011.

4. On 08-8-2011 also, the
Superintendent of Police, Parbhani
was not able to produce the
respondent before this Court.

::: Downloaded on – 09/06/2013 17:43:55 :::
19

cp464.10

Therefore, further time was granted.

Matter was kept on 11-08-2011.
Again time was sought by the

Superintendent of Police, Parbhani
for execution of N.B.W. and for
producing the respondent before this
Court. However, Superintendent of
Police, Parbhani even after sincere

efforts could not arrest the
respondent, therefore, further time
was granted to Superintendent of
Police, Parbhani to take further

appropriate steps as permissible
under rules and report this Court

about such steps taken by filing
affidavit on the adjourned date.
Matter was adjourned to 09-09-2011.

5. Today, learned A.G.P.

mentioned the matter and
accordingly, the matter is taken on
board at 4-30 p.m. Learned A.G.P.

submits that, in pursuant to the
orders passed by this Court,

respondent Mohammed Osman s/o
Mohd. Ismail is arrested and he is
produced before this Court. Since
the Contempt Petition is fixed for

hearing on 09-09-2011 and if the
respondent – alleged contemnor is
left free, in that case, he may not
be traceable again. Therefore, in
the aforestated background, this

Court feel it appropriate that,
till the Contempt Petition is
heard, the respondent Mohammed
Osman s/o Mohd. Ismail is required
to be kept in Harsul Jail,
Aurangabad. Accordingly, it is
ordered that, respondent Mohammed
Osman s/o Mohd. Ismail should be
kept in Harsul Jail, Aurangabad
till 09-09-2011 and he should be

::: Downloaded on – 09/06/2013 17:43:55 :::
20
cp464.10

produced before this Court on

09-09-2011 at the time of hearing
of the Contempt Petition.”

12. The matter was taken up for hearing on 9th

September, 2011. This Court extensively heard

the arguments of the learned Counsel for the

alleged contemnor and since Court time was

over, the matter remained part-heard and,

therefore, it was directed to be listed for

further hearing on 12th September, 2011 at

10.30 a.m. i.e. today. The alleged contemnor

was directed to be taken back to the Central

Prison at Harsool, Aurangabad on 09.09.2011.

On query by this Court to the learned Counsel

for the alleged contemnor that whether he is

ready to give assurance that, if the alleged

contemnor is released, in that case, alleged

contemnor will make himself available on the

next date of hearing. The reply of the learned

Advocate for respondent i.e. alleged contemnor

was that, he cannot give such assurance.

Therefore, this Court directed that the

::: Downloaded on – 09/06/2013 17:43:55 :::
21
cp464.10

alleged contemnor should be taken back to

Central Prison, Harsool, with further

direction to produce him before this Court on

12th September, 2011 i.e., today.

Accordingly, the alleged contemnor is produced

before this Court and he is present in the

Court hall.

13. The

learned Counsel appearing for the

respondent nos.1 and 2 i.e. alleged contemnor,

submitted that there are no mitigating

circumstances to the respondent nos. 1 and 2

i.e. alleged contemnor. He is ready to

deposit the amount within two weeks. The

learned Counsel invited my attention to paras

2 and 3 of the affidavit filed by him and

submitted that the alleged contemnor has

tendered sincere apology. The learned Counsel

also invited my attention to paras 6 and 7 of

the affidavit filed by the alleged contemnor

and submitted that the petitioner did not hand

over the charge to respondent No.3 and as a

::: Downloaded on – 09/06/2013 17:43:55 :::
22
cp464.10

result, necessary documents to prepare salary

bills were not available with the alleged

contemnor. It is further submitted that the

alleged contemnor was under impression that

respondent No.3 herein is responsible for

preparing the bills. He also invited my

attention to para 9 of the affidavit and other

documents

Education
ig and

Officer
the letter

and
addressed

submitted that,
to the

the

correspondence placed on record would make it

clear that the relevant record / documents

were not in possession of the alleged

contemnor so as to comply with the undertaking

given in the month of November, 2009 and,

therefore, he could not comply with the said

undertaking. The learned Counsel further

invited my attention to the fact that some of

the record was in the custody of the landlord,

the school premises were rented premises and

as a result of non payment of rent to the

original landlord, some of the record was

seized by the landlord and he was not ready to

::: Downloaded on – 09/06/2013 17:43:55 :::
23
cp464.10

hand over the same to the management. The

learned Counsel further submitted that the

alleged contemnor is tendering unconditional

apology for running away from the process of

law. He fairly submitted that, the alleged

contemnor is running educational institution

and hopefully, he is also educated and it is

expected from him that he should not run away

from the process of law and the jurisdiction

of this Court. It is further submitted that

it was bounden duty of the alleged contemnor

to submit to the jurisdiction of this Court.

It is further submitted that the alleged

contemnor, due to stringency of funds, tried

to keep away himself from the jurisdiction of

this Court. It is further submitted that the

police department might have incurred expenses

for finding out the alleged contemnor and,

therefore, such expenses can be recovered from

the alleged contemnor. The learned Counsel for

the alleged contemnor fairly submitted that

this is a case of contempt. However, he

::: Downloaded on – 09/06/2013 17:43:55 :::
24
cp464.10

submits that for want of funds and since

record was not available for preparing bills,

the alleged contemnor could not take further

steps.

14. The learned counsel for the alleged

contemnor vehemently argued before this Court

that, the respondent will deposit the entire

unpaid salary amount within two weeks.

15. The learned Counsel for the alleged

contemnor submitted that, during the year,

2010, no salary bills were submitted since the

record was not available with the alleged

contemnor. After the record was made

available, he submitted the salary bills of

the petitioner in the month of July, 2011.

. It is further submitted that, the act of

the alleged contemnor to run away from the

jurisdiction of this Court and to go in some

other State cannot be countenanced. However,

::: Downloaded on – 09/06/2013 17:43:55 :::
25
cp464.10

there was no intention as such on the part of

the alleged contemnor and he left the State to

collect funds to be deposited towards arrears

of petitioner’s salary. It is further

submitted that there was no intention on the

part of the alleged contemnor to harass the

petitioner. He had knowledge that he has to

submit bills and salary amount will have to be

paid to the petitioner.

. The learned counsel further submits that

the alleged contemnor is not having previous

conviction in any crime and he has also

submitted unconditional apology by filing

affidavit as also orally through Counsel. It

is further submitted that the alleged

contemnor appealing to the mercy jurisdiction

of this Court. The learned Counsel,

therefore, would submit that, the notice may

be discharged and contempt proceedings may be

dropped. At the cost of repetition, he

submits that the alleged contemnor is ready to

::: Downloaded on – 09/06/2013 17:43:55 :::
26
cp464.10

deposit the amount towards arrears of unpaid

salary of the petitioner within two weeks.

However, he fairly submits that he cannot

assure this Court that if the alleged

contemnor is released, he will be available to

the further proceedings and will subject to

the jurisdiction of this Court and therefore,

during that period of two weeks, he may be

kept in jail as he is already directed to be

kept in Central Jail, Harsool.

16. The learned Counsel for the petitioner

invited my attention to the order dated 12th

November, 2009 passed by this Court in Writ

Petition No.2177 of 2009 and in particular,

para 3 of the said order. He submits that the

alleged contemnor – respondent No.1 has

committed breach of the undertaking given to

this Court through his Counsel in two ways.

Firstly, he did not deposit the unpaid amount

of salary within six weeks as undertaken by

him and further, the management did not

::: Downloaded on – 09/06/2013 17:43:55 :::
27
cp464.10

continue to pay the salary to the petitioner

as admissible to the post of Assistant

Teacher.

17. It is further submitted that in the

present contempt petition, the notices were

issued on 15.12.2010, same were served upon

the alleged contemnor, even then the salary

for the month of January, 2011 to March, 2011

has not been paid to the petitioner. The

learned counsel invited my attention to the

Rejoinder filed by the petitioner at page 89

of the compilation and submitted that in spite

of notice issued in this contempt petition,

the respondent/alleged contemnor has given

threats to the petitioner, that she should

withdraw the contempt petition otherwise she

would face serious consequences. It is further

submitted that the affidavit was filed by

respondent/alleged contemnor on 15.06.2011 and

a statement was made in it that all the

arrears of the petitioner’s unpaid salary will

::: Downloaded on – 09/06/2013 17:43:55 :::
28
cp464.10

be paid and bills will be forwarded to the

Education Officer (Primary), Zilla Parishad,

Nanded. However, the said bills were not

submitted as undertaken and for the first time

on 2nd July, 2011, the said bills are

submitted to the Education Officer. Therefore,

according to the counsel for the petitioner,

it also amounts to breach of undertaking given

to this Court. It is further submitted that,

in the said affidavit further assurance was

given to this Court that, in case the

Education Officer (Primary), Zilla Parishad,

Nanded fails to clear the arrears of salary of

the petitioner, in that case, the alleged

contemnor will deposit the amount towards

arrears of unpaid salary. However, the said

undertaking has not been complied with.

Learned counsel further submits that the

Hon’ble Supreme Court in the case of “Rama

Narang V/s Ramesh Narang and another” reported

in “A.I.R. 2007 S.C. 2029” has taken a view

that if there is willful breach of undertaking

::: Downloaded on – 09/06/2013 17:43:55 :::
29
cp464.10

given to the Court, the said amounts to

contempt and wilful disobedience of the order

passed by the Court. The learned Counsel also

pressed in to service the reported judgment of

the Supreme Court in the case of “Pallav Sheth

V/s Custodian” reported at ” 2001 DGLS (Soft)

980″ and submitted that the provisions of

Section 20 of the Contempt of Courts Act will

not come in the way of the petitioner, since

the contempt filed by the petitioner is well

within limitation. Therefore, learned counsel

for the petitioner would submit that this

Court may punish the alleged contemnor for

committing contempt and willful disobedience

of the order passed by this Court.

18. The Counsel for the Education Officer

(Primary), Zilla Parishad submits that he is

taking sincere efforts to get the amount

sanctioned and paid to the petitioner. He

submits that he has already submitted the

salary bills of the petitioner to the Director

::: Downloaded on – 09/06/2013 17:43:55 :::
30
cp464.10

of Education, (Primary) Maharashtra State,

Pune on 4th August, 2011 and thereafter, the

reminders have also been sent to the concerned

Authority on 20th August and 9th September,

2011. Therefore, the learned counsel for the

Education Officer would submit that he is

taking sincere efforts to get the amount

sanctioned from the higher authorities so that

the payment should be made to the petitioner.

19. I have given due consideration to the

submissions of the Counsel appearing for the

respective parties. Original papers of Writ

Petition no. 2177/2009 were called and same

are made available by Registry for perusal.

The counsel for the respondent/alleged

contemnor was heard at length at 9th

September, 2011. Thereafter today also he has

advanced his submission at length.

20. The respondent no.1/alleged contemnor is

added as respondent no.1 in his personal

::: Downloaded on – 09/06/2013 17:43:55 :::
31
cp464.10

capacity and as a respondent no.2 in the

capacity of President of respondent no.2-

Institution.

From perusal of the original proceedings

in Writ Petition no. 2177/2009, it appears

that the respondent/alleged contemnor did file

the said

judgment

and
Writ

order
Petition

of the
aggrieved

School
by

Tribunal,
the

Latur. In said Writ Petition this Court was

pleased to issue Rule and interim relief in

terms of prayer clause `C’. However, so far as

the salary of the petitioner for the post of

Assistant Teacher is concerned, same was not

paid to the petitioner. Therefore, at the time

of hearing of the said Writ Petition, the

grievance was made in respect of said unpaid

salary. In the above background this Court

held in paragraph no.3 of the order dated

12.09.2009 as under :

“Mr. Dhorde, learned Counsel for the

::: Downloaded on – 09/06/2013 17:43:55 :::
32
cp464.10

petitioner states that the unpaid

amount of salary would be disbursed
within six weeks from today and the

management will continue to pay to
respondent No.4 salary admissible to
the post of Assistant teacher.”

21. Therefore, reading para no.3 of the order

of this Court in the said Writ Petition, would

make it abundantly clear that the

respondent/alleged contemnor had given solemn

undertaking to this Court through his counsel

Mr. Dhorde that unpaid amount of salary of the

petitioner will be disbursed within six weeks

from 12th November, 2009 to the petitioner,

who was respondent no.4 in the Writ Petition

and also the Management will continue to pay

salary of respondent no.4 petitioner herein.

. It is admitted position that in spite of

solemn undertaking given to this Court the

alleged contemnor has not paid the amount of

unpaid salary to the petitioner within six

weeks from 12.11.2009, or till today, and also

the Management has been failed to pay the

::: Downloaded on – 09/06/2013 17:43:55 :::
33
cp464.10

regular salary to the petitioner. Therefore,

there is clear breach of undertaking given to

this Court by the alleged contemnor. It is

also not in dispute that the alleged contemnor

did not file an application either for

extension of time or modification of the said

order, therefore, the net position emerges

that the observations of this Court in para 3

of the order dated 12.11.2009 in Writ Petition

no. 2177/2009 on the basis of solemn

undertaking are still in force. Therefore, the

stand taken by the alleged contemnor that

record was not available, and therefore, he

could not prepare the salary bills is not part

of the undertaking. From reading of the

affidavit in reply filed by the alleged

contemnor, bone of contention appears to be

that necessary record was not available for

preparation of salary bills of the petitioner,

and therefore, the respondent/alleged

contemnor could not submit salary bills to the

Education Officer. Further stand taken in the

::: Downloaded on – 09/06/2013 17:43:55 :::
34
cp464.10

affidavit in reply appears to be that, the

alleged contemnor was under bonafide

impression that respondent no.3 is responsible

for unpaid amount of salary. Such stand taken

by the respondent/contemnor is after thought.

The undertaking given by the alleged contemnor

does not mention preparation of any salary

bills
and submitting it to

Officer and get amount sanctioned and then to
the Education

disburse the said amount to the petitioner.

The stand taken by the respondent that the

record was not available and therefore, he

could not prepare the salary bills and submit

to the Education Officer cannot be

countenanced. It was open for the contemnor to

file application in pending Writ petition

either for modification of the order or

extension of time. However, admittedly, no

such application has been filed by the

contemnor, the order dated 12.11.2009 passed

by this Court in Writ Petition no. 2177/2009

is very much in force and therefore, there is

::: Downloaded on – 09/06/2013 17:43:55 :::
35
cp464.10

clear willful disobedience of undertaking

given to this court by the respondent/alleged

contemnor.

22. The second point which requires to be

considered in this Contempt Petition is,

affidavit filed by the alleged contemnor on

15th
June,

Proceedings.

                      2011

                      The
                             in

                             said
                                    the        present

                                        affidavit
                                                               Contempt

                                                            filed         by
              

respondent/alleged contemnor is at page 94 of

the compilation of the Contempt Petition which

reads thus :-

“I,Mohammad Osman S/o. Mohd. Ismail,
Age : 56 years, Occ : Nil, R/o C/o

Rahim Bhai Engineer, Parbhani, Tq. &
Dist. Parbhani, the President of
Madarse Noorul Uloom Education
Society, Nanded do hereby state on
solemn affirmation as under:-

1. I say that, I will submit the
bill regarding unpaid amount of
salary to the petitioner within 3
days from today to the Respondent no.
4-Education Officer (Primary), Zilla
Parishad, Nanded and I will take
steps to get the said amount
disbursed by the Respondent no.4 on
or before 24.06.2011.

::: Downloaded on – 09/06/2013 17:43:55 :::
36

cp464.10

2. I say that, in the event the
said amount is not disbursed before

24.06.2011, I will deposit the said
amount within one week from
24.06.2011 in this Hon’ble High
Court.”

23. From perusal of the para no.1 of the said

affidavit reproduced hereinabove, there is

solemn undertaking given by the respondent

that, he
ig will submit the bills regarding

unpaid amount of salary within three days from

the date of filing of the affidavit i.e.

15.06.2011, to respondent no.4-Education

Officer (Primary), Zilla Parishad, Nanded. It

is stated in para no.1 that, he will take

steps to get the amount disbursed on or before

24.06.2011 and in the event the said amount is

not disbursed before 24.06.2011, he will

deposit the said amount within one week from

24.06.2011 in this Court.

24. Admittedly till the date the undertaking

given to this Court by filing affidavit on

::: Downloaded on – 09/06/2013 17:43:55 :::
37
cp464.10

oath has not been complied with. It is also

relevant to mention that first time respondent

no.1 submitted bills towards unpaid salary of

the petitioner to the Education Officer on 2nd

July, 2011 i.e. after 24.06.2011. As stated

earlier no amount towards unpaid salary or

further salary is paid to the petitioner till

this date.

25. This Court on 6th September, 2011 has

passed the detailed order indicating the

conduct of the contemnor in running away from

the jurisdiction of this Court and not making

available himself in this Contempt Proceeding

on various dates fixed for hearing. The order

dated 6th September, 2011 is already

reproduced hereinabove in para 11 of this

Judgment. The conduct of the respondent nos. 1

and 2/alleged contemnor is totally unreliable,

untrustworthy and unworthy, therefore, he does

not deserve any leniency.

::: Downloaded on – 09/06/2013 17:43:55 :::
38

cp464.10

26. Therefore, taking into consideration the

clear breach of undertaking as referred above,

this Court was not left with any option but to

decide this Contempt Petition in presence of

the alleged contemnor/respondent. Therefore,

the non-bailable warrant was issued. However,

the alleged contemnor absconded and did not

make available himself to the jurisdiction of

this Court. The matter was fixed for number of

dates and report is received from the

Superintendent of Police, Parbhani that the

respondent/alleged contemnor is hiding himself

and is not traceable. Even Superintendent of

Police, Parbhani was required to be summoned

by this Court and she remained present before

this Court. However, alleged contemnor not

only absconded but went to another State.

Therefore, when he was produced on 6th

September, 2011, this Court was not sure as to

whether the alleged contemnor if released will

make himself available for further

proceedings.

::: Downloaded on – 09/06/2013 17:43:55 :::
39

cp464.10

27. This Court in this contempt petition is

examining the contentions raised by the

petitioners that solemn undertaking given

before this Court is breached/ violated by the

alleged contemnor/ respondent and if this

Court allows to violate/ breach the

public

undertakings and directions, in that case, the

at large would lose faith in the

judicial system and sanctity of giving such

undertakings and passing the orders on the

basis of such undertakings would be of no

avail.

28. The Constitutional Bench of the Supreme

Court, in case of Supreme Court Bar

Association Vs. Union of India & anr. [ (1998)

4 SCC 409 ], in para 42 held :

“42. The contempt of court is a
special jurisdiction to be
exercised sparingly and with
caution whenever an act adversely
affects the administration of

::: Downloaded on – 09/06/2013 17:43:55 :::
40
cp464.10

justice or which tends to impede

its course or tends to shake
public confidence in the judicial

institutions. This jurisdiction
may also be exercised when the act
complained of adversely affects
the majesty of law or dignity of
the courts. The purpose of

contempt jurisdiction is to uphold
the majesty and dignity of the
courts of law. It is an unusual
type of jurisdiction combining

“the jury, the judge and the
hangman” and it is so because the

court is not adjudicating upon any
claim between litigating parties.
This jurisdiction is not exercised
to protect the dignity of an

individual judge but to protect
the administration of justice from
being maligned. In the general
interest of the community it is

imperative that the authority of
courts should not be imperilled

and there should be no
unjustifiable interference in the
administration of justice. It is
a matter between the court and the

contemnor and third parties cannot
intervene. It is exercised in a
summary manner in aid of the
administration of justice, the
majesty of law and the dignity of
the courts. No such act can be

permitted which may have the
tendency to shake the public
confidence in the fairness and
impartiality of the administration
of justice.”

29. Therefore, if the majesty of the law is to

::: Downloaded on – 09/06/2013 17:43:55 :::
41
cp464.10

be upheld and if the confidence of the common

people in the judiciary is to be maintained,

in that case, the person who gives undertaking

before this Court and subsequently does not

follow the said undertaking even after one and

half year from giving such undertaking,

deserves to be punished. Not only this but in

present Contempt Petition the respondent has

filed affidavit on 15.06.2011 thereby stating

on oath that, he will submit unpaid salary

bills of the petitioner to the Education

Officer within three days and he will take

steps to get the said amount disbursed by the

respondent no.4 on or before 24.06.2011 and in

case, the amount is not disbursed before

24.06.2011, he will deposit the said amount

within one week from 24.06.2011 in this Court.

30. In the present contempt proceedings, this

Court is mainly concerned with maintaining the

majesty of law and public confidence in

judiciary. If the act of the respondent/

::: Downloaded on – 09/06/2013 17:43:55 :::
42
cp464.10

alleged contemnor to file undertaking and then

to breach it and further to file affidavits

before this Court, thereby giving assurance to

disburse the unpaid salary within one week

from 24.06.2011, to the petitioner, and not

complying with the said statement on oath till

date, if tolerated and allowed to continue,

certainlyig the public confidence

judicial institution will be shaken and the
in the

litigants will tempt to violate/ breach the

orders/ undertaking given before the Court.

31. In the present case, there is breach of

undertaking given by the respondent-alleged

contemnor through his Counsel on 12th

November, 2009 in Writ Petition No. 2177/2009.

The alleged contemnor did not pay unpaid

amount of salary or disbursed the same within

six weeks to the petitioner from 12th

November, 2009. Secondly, the assurance given

that the Management will continue to pay the

respondent no.4 i.e. the present petitioner

::: Downloaded on – 09/06/2013 17:43:55 :::
43
cp464.10

the salary admissible to the post of assistant

teacher is also not complied with. Admittedly,

as on today, the undertaking given to this

Court on 12th November, 2009 in Writ Petition

no. 2177/2009 as reflected in para no.3 of the

said order, has not been complied with by the

respondent/alleged contemnor.

32. Secondly, the undertaking given to this

Court by way of affidavit on 15th June, 2011

has not been complied with by the allegedly

contemnor/ respondent. Thirdly, the

respondent/alleged contemnor, after issuance

of non-bailable warrant on 11th August, 2011

absconded and did not make available for

himself and ran away from the process of law

and ultimately, did not subject to

jurisdiction of this Court for the various

dates fixed for hearing from 11.07.2011 to

06.09.2011. This Court was constrained to

direct the Superintendent of Police, Parbhani

to continue search of the respondent/alleged

::: Downloaded on – 09/06/2013 17:43:55 :::
44
cp464.10

contemnor and produce him before this Court.

Therefore, this Court is of the considered

view that, this is a case of clear breach and

willful disobedience of undertakings given to

this Court and further violation of the orders

passed by this Court on the basis of such

undertakings given by the respondent/ alleged

contemnor before this Court. The situation is

aggravated by the respondent/ alleged

contemnor himself by not making himself

available for various dates fixed for hearing

of the Writ Petition. The respondent has shown

total disrespect and disregard to the judicial

process and also to the process of law.

33. The respondent/alleged contemnor had tried

to protract and prolong hearing of the

contempt petition by not making available

himself when the Petition was fixed for

hearing. He has not obeyed the orders passed

by this Court, rather tried to prolong the

hearing of the Contempt Petition. The said

::: Downloaded on – 09/06/2013 17:43:55 :::
45
cp464.10

conduct of the alleged contemnor/ respondent

can not be countenanced and same deserves to

be dealt with rigorously.

34. However, the case in hand falls under

Civil Contempt as defined under Section 2(b)

of the Contempt of Courts Act, which reads

thus :

Section 2(b) : “civil contempt” means
wilful disobedience to any judgment,
decree, direction, order, writ or
other process of a Court or wilful

breach of an undertaking given to a
Court;

35. The reading of Section 2(b) of the

Contempt of Courts Act, 1971 makes it clear

that civil contempt means wilful disobedience

to any judgment, decree, direction, order,

writ or other process of a Court or wilful

breach of an undertaking given to a Court. The

wilful disobedience has not been defined in

the Contempt of Courts Act. The Hon’ble

Supreme Court in the case of “All India Anna

::: Downloaded on – 09/06/2013 17:43:55 :::
46
cp464.10

Dravida Munnetra Kazhagam V/s L.K. Tripathi”

reported in ” (2009) 5 S.C.C. 417″ from para

53 to 64 had discussed about what is mean by

`wilful disobedience.’ The Hon’ble Supreme

Court has referred to various earlier

judgments and dictionary meaning and explained

about the wilful disobedience. The paragraph

nos. 53 ig to 64

reproduced herein below :

                              of    the        said        judgment           is
              
                  "53.    We   have    considered    the
                  submissions/arguments    of    learned
      

counsel for the parties. Section 2(b)
and (c) of the 1971 Act which define

civil and criminal contempt read as
under:

“2(b) `civil contempt’ means wilful
disobedience to any judgment, decree,

direction, order, writ or other
process of a court or wilful breach
of an undertaking given to a court;

(c) `criminal contempt’ means the
publication (whether by words, spoken

or written, or by signs, or by
visible representations, or
otherwise) of any matter or the doing
of any other act whatsoever which-

(i) scandalises or tends to
scandalise, or lowers or tends to
lower the authority of, any court ;
or

(ii) prejudices, or interferes or

::: Downloaded on – 09/06/2013 17:43:55 :::
47
cp464.10

tends to interfere with, the due

course of any judicial proceeding; or

(iii) interferes or tends to

interfere with, or obstructs or tends
to obstruct, the administration of
justice in any other manner,”

54. An analysis of Section 2(b) of
the 1971 Act shows that willful
disobedience to any judgment, decree,
direction, order, writ or other

process of a court or willful breach
of an undertaking given to a court

constitutes civil contempt. If this
definition is read with Article 129
of the Constitution of India, it

becomes clear that being a Court of
record, this Court can punish a
person for civil contempt if it is
found that he has willfully disobeyed
any judgment etc. or violated

undertaking given to the Court.

55. The term `wilful’ (willfull) has
not been defined in the 1971 Act.
Therefore, it will be useful to

notice dictionary meaning of the said
term. As per The New Oxford
Illustrated Dictionary (1980
Edition),the term “wilful” means
“asserting or disposed to assert
one’s own will against instruction,

persuasion, etc.; obstinately self-
willed; deliberate, intentional,
showing perversity or self-will”.

56. According to Black’s Law
Dictionary, (8th Edition)- “Wilful”
means “[v]oluntary and intentional,
but not necessarily malicious” and
“wilfulness” means

::: Downloaded on – 09/06/2013 17:43:55 :::
48
cp464.10

“1. The fact or quality of

acting purposely or by design;
deliberateness;intention; willfulness

does not necessarily imply malice,
but it involves more than just
knowledge.

2. The voluntary, intentional

violation or disregard of a known
legal duty.”

57. As per Stroud’s Judicial

Dictionary, Vol.5 (4th Edition),
“wilful disobedience” means;
ig “(1) The willful disobedience of
a SEAMAN or apprentice is `wilfully
disobeying any lawful command DURING

engagement’: `There may be many cases
in which DESERTION, or ABSENCE
without leave, would not amount to
willful disobedience, and in these
cases the seaman would only be liable

to the lesser penalty. Where,
however, the seaman deserts or is

intentionally absent without leave
after the time at which he has been
lawfully ordered to be on board, his
desertion or absence may amount to

“wilful disobedience,” and,
consequently, that he would be liable
to imprisonment. The words “during
the engagement” seem to suggest that
the contract between the employer and

the employed should be taken into
account, and that if, having regard
to that contract, the order was one
which the employed was bound to obey,
his disobedience might be dealt with
under clause (d)’;”

58. In Shorter Oxford English
Dictionary, the term “willful” has

::: Downloaded on – 09/06/2013 17:43:55 :::
49
cp464.10

been defined as:

“1. Asserting or disposed to
assert one’s own will against

persuasion, instruction, or command;
governed by will without regard to
reason; obstinately self-willed or
perverse.

2. Willing; consenting; ready to
comply with a request, desire, or
requirement – 1598.

3. proceeding from the will;

done or suffered of one’s own free
will or choice; voluntary – 1687.
ig 4. Done on purpose or wittingly;
purposed, deliberate, intentional.
(Chiefly, now always, in bad sense of

a blameworthy action; freq. implying
`perverse, obstinate’.)”

59. In Ashok Paper Kamgar Union v.

Dharam Godha and others [(2003) 11
SCC 1], this Court was called upon to

decide whether the respondents i.e.
Shri Dharam Godha, Chairman, Nouveau
Capital & Finance Ltd.; Shri S.
Jagadeesan, Joint Secretary, Ministry

of Industry, Department of Industrial
Policy and Promotion, Government of
India; Shri G.S. Kang, Secretary,
Department of Industries, Government
of Bihar; Shri S.N. Khan, Chairman

and Managing Director and Shri R.P.
Chabra, Chief General Manager,
Rehabilitation Finance Department,
Industrial Development Bank of India
were guilty of contempt.

60. The facts of Dharam Godha case
were that by an order dated 8.7.1996,
this Court approved the proposal made

::: Downloaded on – 09/06/2013 17:43:55 :::
50
cp464.10

by the Government of India for take

over of M/s. Ashok Paper Mills by
M/s. Nouveau Capital and Finance Ltd.

and disposed of the writ petition
filed by Ashok Paper Kamgar Union.
Later on, by an order dated 1.5.1997,
all concerned were directed to
participate in implementation of the

scheme and the Finance Secretary,
Ministry of Finance, Government of
India was directed to ensure that the
legal requirements are fulfilled and

the mill is rehabilitated and both
Phases I and II of the Scheme are

given effect to. Two more orders were
passed by the court in the matter on
31.7.2000 and 1.9.2000. The
petitioner alleged that the

respondents have failed to comply
with the directions given by the
Court for implementation of the
Scheme and, therefore, they are

liable for contempt of court.

61. This court in Dharam Godha
took cognizance of the fact that M/s.
Nouveau Capital & Finance Ltd., had
failed to pay the consideration of

Rs.6 crores; that IDBI had disbursed
term loan of Rs.15 crores towards
Phase I of revival Scheme; that the
Department of Industrial Policy and
Promotion, Ministry of Commerce and

Industry, Government of India in
cooperation with the Department of
Banking obtained sanction for
additional term loan of Rs.11 crores
from IDBI and a working capital of
Rs.9.25 crores from United Bank of
India; that NCFL had invested Rs.20
crores towards promotion contribution
which was much more than amount
contemplated in Phase I of the Scheme

::: Downloaded on – 09/06/2013 17:43:55 :::
51
cp464.10

and held that respondents cannot be

held guilty of contempt.

62. Para 17 of the judgment which
contains discussion on the subject
reads as under: (Dharam Godha case,
SCC pp.14-15)

“17. Section 2(b) of the
Contempt of Courts Act defines
`civil contempt’; and it means

wilful disobedience to any
ig judgment, decree, direction,
order, writ or other process of
a court or wilful breach of
undertaking given to a court.

           `Wilful'    means    an    act   or
           omission     which      is     done
           voluntarily    and    intentionally

and with the specific intent to
do something the law forbids or

with the specific intent to fail
to do something the law requires

to be done, that is to say, with
bad purpose either to disobey or
to disregard the law. It
signifies a deliberate action

done with evil intent or with a
bad motive or purpose.

Therefore, in order to
constitute contempt the order of
the court must be of such a

nature which is capable of
execution by the person charged
in normal circumstances. It
should not require any
extraordinary effort nor should
be dependent, either wholly or
in part, upon any act or
omission of a third party for
its compliance. This has to be
judged having regard to the

::: Downloaded on – 09/06/2013 17:43:55 :::
52
cp464.10

facts and circumstances of each

case. The facts mentioned above
show that none of the

respondents to the petition can
be held to be directly
responsible if the Scheme which
had been formulated by the
Government of India on 28-6-1996

and had been approved by this
Court by the order dated
8-7-1996 could not be
implemented in letter and spirit

as many factors have contributed
to the same. The reasons given
ig for non-inclusion of
Umadhar Prasad Singh in signing
of the agreement appear to be
Shri

quite plausible. NCFL has

undoubtedly not discharged its
liability of making payment of
its entire liability of Rs.6
crores. However, it has come out

with a case that some additional
expenditure has been incurred in

running the unit. It is not
possible to get the complete
financial picture only on the
basis of the affidavits filed in

the present petition. On the
material on record, therefore,
it is not possible to hold that
the charge of having committed
contempt of court on account of
alleged non- compliance with the

orders passed by this Court on
8-7-1996, 1-5-1997 and 31-7-2000
has been established against any
one of the respondents.”

(emphasis added).

63. In DDA v. Skipper Construction
[(1995) 3 SCC 507], this Court

::: Downloaded on – 09/06/2013 17:43:55 :::
53
cp464.10

highlighted the distinction between

the civil and criminal contempt in
the following words:- (SCC p-517,

paras 43-44)

“43. Civil contempt is defined
under Section 2(b) of the Act.

Thus, any wilful disobedience to
the order of the court to do or
abstain from doing any act is
prima facie a civil contempt.

Civil contempt arises where the
power of the court is invoked
ig and exercised to enforce
obedience to orders of the
court.

44. On the contrary, criminal
contempts are criminal in
nature. It may include outrages
on the Judges in open court,
defiant disobedience to the

Judges in court, libels on
Judges or courts or interfering

with the courts of justice or
any act which tends to prejudice
the courts of justice.”

64 In Kapildeo Prasad Sah and
others v. State of Bihar and others
[(1999) 7 SCC 569], the Court
outlined the object of its contempt
jurisdiction in the following words:

(SCC pp-573-74, paras 9 & 11)

“9. For holding the respondents
to have committed contempt,
civil contempt at that, it has
to be shown that there has been
wilful disobedience of the
judgment or order of the court.
Power to punish for contempt is

::: Downloaded on – 09/06/2013 17:43:55 :::
54
cp464.10

to be resorted to when there is

clear violation of the court’s
order. Since notice of contempt

and punishment for contempt is
of far-reaching consequence,
these powers should be invoked
only when a clear case of wilful
disobedience of the court’s

order has been made out. Whether
disobedience is wilful in a
particular case depends on the
facts and circumstances of that

case. Judicial orders are to be
properly understood and complied
ig with. Even
carelessness
negligence
can amount
disobedience particularly when
and
to

the attention of the person is

drawn to the court’s orders and
its implications. Disobedience
of the court’s order strikes at
the very root of the rule of law

on which our system of
governance is based. Power to

punish for contempt is necessary
for the maintenance of effective
legal system. It is exercised to
prevent perversion of the course

of justice.

11. No person can defy the
court’s order. Wilful would
exclude casual, accidental, bona

fide or unintentional acts or
genuine inability to comply with
the terms of the order. A
petitioner who complains breach
of the court’s order must allege
deliberate or contumacious
disobedience of the court’s
order.”

::: Downloaded on – 09/06/2013 17:43:55 :::
55

cp464.10

36. The Supreme Court in the case of “Rama

Narang (5) V/s Ramesh Narang and another”

reported in “(2009) 16 S.C.C. 126”, after

critical analysis of the decided cases of the

Supreme Court held that, the wilful breach of

an undertaking given to the court amounts to

contempt of court under Section 2(b) of the

Contempt of Courts Act, 1971. The dictionary

meaning of the word undertaking and order, the

earlier judgments of the Supreme Court on

subject are discussed from para no. 35 to 47

of the said judgment. The paragraph nos. 35 to

47 of the said judgment are reproduced herein

below :

“35. Black’s Law Dictionary, 5th
Edn. defines “undertaking” in the
following words:

“A Promise, engagement, or
stipulation. An engagement by
one of the parties to a contract
to the other, as distinguished
from the mutual engagement of
the parties to each other. It
does not necessarily imply a
consideration. In a somewhat
special sense, a promise given
in the course of legal

::: Downloaded on – 09/06/2013 17:43:55 :::
56
cp464.10

proceedings by a party or his

counsel, generally as a
condition to obtaining some

concession from the Court or the
opposite party. A promise or
security in any form.”

36. Osborn’s Concise Law Dictionary,
10th Edn. defines “undertaking” in
the following words:

“A promise, especially a promise

in the course of legal
ig proceedings by a party or his
counsel, which may be enforced
by attachment or otherwise in
the same manner as an

injunction.”

37. In M. v. Home Office (1992) 4
All ER 97 at p.132g, the expression

“undertaking” has been dealt with in
the following manner:

“[I]f a party, or solicitors or
counsel on his behalf, so act as
to convey to the court the firm
conviction that an undertaking

is being given, that party will
be bound and it will be no
answer that he did not think
that he was giving it or that he
was misunderstood.”

38. In re Hudson [1966] Ch. 209 the
English Court observed as under:(All
ER pp.112 I-113 A)

“An undertaking to the court
confers no personal right or
remedy on any other party. The

::: Downloaded on – 09/06/2013 17:43:56 :::
57
cp464.10

only sanctions for breach are

imprisonment for contempt,
sequestration or a fine.”

39. Similarly, in Shoreham-by-Sea
U.D.C. v. Dolphin Canadian Proteins
Ltd., (1972) 71 L.G.R. 261, the Court

observed as under:

“Failure to comply with an
undertaking to abate a nuisance

may be visited with a
ig substantial fine.”

40. The Division Bench of the Bombay

High Court in Bajranglal Gangadhar
Khemka v. Kapurchand Ltd.
reported in
AIR 1950 Bombay 336 had an occasion
to deal with similar facts. Chagla,
C.J., speaking for the Court,

observed as under: (AIR p.337, para

4)

“4. We are not prepared to
accept a position which seems to
us contrary to the long practice
that has been established in

this Court, and, apparently,
also in England. There is no
reason why even in a consent
decree a party may not give an
undertaking to the Court.

Although the Court may be bound
to record a compromise, still,
when the Court passes a decree,
it puts its imprimatur upon
those terms and makes the terms
a rule of the Court; and it
would be open to the Court,
before it did so, to accept an
undertaking given by a party to
the Court. Therefore, there is

::: Downloaded on – 09/06/2013 17:43:56 :::
58
cp464.10

nothing contrary to any

provision of the law whereby an
undertaking cannot be given by a

party to the Court in the
consent decree, which
undertaking can be enforced by
proper committal proceedings.”

41. In Noorali Babul Thanewala v.
K.M.M. Shetty
reported in (1990) 1
SCC 259, a tenant committed breach of

undertaking given by him to the
Supreme Court to deliver vacant
possession of certain premises. The

Supreme Court held the tenant guilty
of contempt. Hon’ble V. Ramaswami,
J., delivering the judgment observed:

(SCC pp-265-66 para 11)
“11. When a court accepts an
undertaking given by one of the
parties and passes orders based

on such undertaking, the order
amounts in substance to an

injunction restraining that
party from acting in breach
thereof. The breach of an
undertaking given to the Court

by or on behalf of a party to a
civil proceedings is, therefore,
regarded as tantamount to a
breach of injunction although
the remedies were not always
identical. For the purpose of

enforcing an undertaking that
undertaking is treated as an
order so that an undertaking, if
broken, would involve the same
consequences on the persons
breaking that undertaking as
would their disobedience to an
order for an injunction. It is
settled law that breach of an

::: Downloaded on – 09/06/2013 17:43:56 :::
59
cp464.10

injunction or breach of an

undertaking given to a court by
a person in a civil proceeding

on the faith of which the court
sanctions a particular course of
action is misconduct amounting
to contempt.”

42. In Mohd. Aslam v. Union of India
reported in (1994) 6 SCC 442, this
Court dealt with the contempt

proceedings raising the issues as to
the amenability of the State and of
its
ig Ministers for failure of
obedience to the judicial
pronouncements. In this case, the
Chief Minister of Uttar Pradesh had

made a statement before National
Integration Council that the
Government of Uttar Pradesh will hold
itself fully responsible for the

protection of the Ram Janma Bhumi-
Babri Masjid structures. Upon this

statement of the Chief Minister, this
Court had passed an order. However,
in the contempt proceedings it was
alleged that the orders passed on the
basis of the statements made have

been deliberately and wilfully
flouted and disobeyed by the State of
Uttar Pradesh. While dealing with the
expression “undertaking”, this Court
observed as under: (SCC p-453, para

22)
“The Chief Minister having given
a solemn assurance to the
National Integration Council and
permitted the terms of that
assurance to be incorporated as
his own undertaking to this
court and allowed an order to be
passed in those terms cannot

::: Downloaded on – 09/06/2013 17:43:56 :::
60
cp464.10

absolve himself of the

responsibility unless he placed
before the Court sufficient

material which would justify
that he had taken all reasonable
steps and precautions to prevent
the occurrence.”

43. In Rita Markandey v. Surjit
Singh Arora
reported in (1996) 6 SCC
14, this Court came to the conclusion

that even if the parties have not
filed an undertaking before the
Court, but if the Court is induced to

sanction a particular course of
action or inaction on the basis of
the representation of such a party

and the court ultimately finds that
the party never intended to act on
such representation or such
representation was false, even then

the party would be guilty of
committing contempt of court. The

Court observed as under: (SCC p-20,
para 12).

“12. Law is well settled that if

any party gives an undertaking
to the Court to vacate the
premises from which he is liable
to be evicted under the orders
of the Court and there is a

clear and deliberate breach
thereof it amounts to civil
contempt but since, in the
present case, the respondent did
not file any undertaking as
envisaged in the order of this
Court the question of his being
punished for breach thereof does
not arise. However, in our
considered view even in a case

::: Downloaded on – 09/06/2013 17:43:56 :::
61
cp464.10

where no such undertaking is

given, a party to a litigation
may be held liable for such

contempt if the Court is induced
to sanction a particular course
of action or inaction on the
basis of the representation of
such a party and the Court

ultimately finds that the party
never intended to act on such
representation or such
representation was false.”

44. In
ig K.C.G. Verghese v. K.T.

Rajendran reported in (2003) 2 SCC
492, this Court dealt with the
“undertaking” in contempt proceedings

arising out of eviction proceedings.
This Court held that when at the time
of giving the undertaking, the tenant
did not indicate that he was in

possession of a part of the premises
and not the other portion nor was

such a stand taken in any of the
pleadings before the High Court or
rent controller, the order of
eviction passed against the tenant is
equally binding upon the occupant of

the other portion.

45. This Court again had occasion to
deal with a case in Bank of Baroda v.

Sadruddin Hasan Daya reported in
(2004) 1 SCC 360. In that case, the
Court clearly observed as under:(SCC
p-361g).

“The wilful breach of an
undertaking given to a court
amounts to `civil contempt’
within the meaning of Section

::: Downloaded on – 09/06/2013 17:43:56 :::
62
cp464.10

2(b) of the Contempt of Courts

Act. The respondents having
committed breach of the

undertaking given to the Supreme
Court in the consent terms they
are clearly liable for having
committed contempt of court.”

46. The respondents placed reliance
on Babu Ram Gupta v. Sudhir Bhasin
reported in (1980) 3 SCC 47. In this

case admittedly no application,
affidavit or any undertaking were
given by the appellant. Therefore,

this case is of no assistance to the
respondents. In this case, the Court
observed that:(SCC p-53, para 10).

“[E]ven the consent order does
not incorporate expressly or
clearly that any such
undertaking had been given

either by the appellant or by
his lawyer before the Court that

he would handover possession of
the property to the receiver. In
the absence of any express
undertaking given by the

appellant or any undertaking
incorporated in the order
impugned, it will be difficult
to hold that the appellant
wilfully disobeyed or committed
breach of such an undertaking”.

The Court even in this case observed
that: (SCC p-53, para 10)

“In fact, the reason why a
breach of clear undertaking
given to the court amounts to
contempt of court is that the

::: Downloaded on – 09/06/2013 17:43:56 :::
63
cp464.10

contemnor by making a false

representation to the court
obtains a benefit for himself

and if he fails to honour the
undertaking, he plays a serious
fraud on the court itself and
thereby obstructs the course of
justice and brings into

disrepute the judicial
institution.” (emphasis in
original).

47. The critical analysis of the
decided cases of this Court clearly

leads to the conclusion that wilful
breach of an undertaking given to the
Court amounts to contempt of court

under Section 2(b) of the Act.”

37. Therefore, viewed from any angle the

respondent/ alleged contemnor inspite of

undertaking given to this Court on 12th

November, 2009 in Writ Petition no. 2177/2009

and also inspite of directions in para no.3 of

the order of this Court in said Writ Petition,

and also inspite of the undertaking given by

way of filing Affidavit on oath on 15th June,

2011 has not disbursed/ paid the unpaid salary

of the petitioner. The Management i.e.

respondent no.2, did not continue to pay the

::: Downloaded on – 09/06/2013 17:43:56 :::
64
cp464.10

regular salary to the petitioner as an

Assistant Teacher in spite of solemn

undertaking given to this Court. Therefore,

the alleged contemnor/ respondent has

committed breach of undertakings given to this

Court and wilfully disobeyed the orders passed

by this Court on 12th November, 2009 in Writ

2011 in

Petition no. 2177/2009 and also on 15th June,

the present Contempt Petition,

therefore, the respondent/ alleged contemnor-

Mohd. Osman S/o Mohd. Ismail is liable to be

punished under the provisions of the Contempt

of Courts Act, 1971 and Article 215 of the

Constitution of India. His conduct in not

making himself available for the process of

law and jurisdiction of this Court and

absconding, makes him further unworthy, and

leads to such situation that, he can not be

shown leniency.

38. Though, it is vehemently argued by the

counsel for the respondent that, the

::: Downloaded on – 09/06/2013 17:43:56 :::
65
cp464.10

respondent has tendered unconditional apology

in the affidavit in reply filed in this

contempt proceedings and also had orally

tendered the unconditional apology, in the

facts of this case, it is not possible to

accept such apology.

Jaikwal

39. The Supreme Court in the case of

V/s State of U.P.” reported
“L.D.

in

“A.I.R. 1984 S.C. 1374” held that, “we are

sorry to say we cannot subscribe to the “slap-

say-sorry and forget” school of thought in

administration of contempt jurisprudence.

Saying “sorry” does not make the slapper taken

the slap smart less upon the said hypocritical

word being uttered. Apology shall not be paper

apology and expression of sorrow should come

from the heart and not from the pen. For it is

one thing to “say” sorry-it is another to

“feel” sorry”.

40. Therefore, in my opinion, in the facts of

::: Downloaded on – 09/06/2013 17:43:56 :::
66
cp464.10

this case, no such apology can be accepted.

Therefore, at this stage, the learned counsel

appearing for the respondent/alleged contemnor

is called upon to address this Court on the

point of sentence.

41. The learned counsel appearing for the

respondent once again submits that the alleged

contemnor is praying for mercy jurisdiction of

this Court. He further submits that respondent

is suffering from blood pressure and the

respondent will try to comply with the

affidavit filed on 15.06.2011.

42. It is not possible for this Court to

accept the submissions of the learned counsel

for the respondent. The learned Counsel for

the respondent is not sure that if the

respondent is left free and in case such

amount as assured by him is not deposited

within two weeks, in that case respondent will

make himself available for compliance of the

::: Downloaded on – 09/06/2013 17:43:56 :::
67
cp464.10

order of this Court. Therefore, in my

considered view in the facts of this case, the

respondent who has breached two undertakings

and also ran away from the process of law,

would not make himself available for complying

the orders passed in this Contempt Petition.

43. In case of Pritam Pal Vs. High Court of

Madhya Pradesh, Jabalpur through Registrar [ 1993

Supp (1) SCC 529 ], the Hon’ble Supreme Court

held :

“The power conferred upon the

Supreme Court and the High Court,
being Courts of record under

Articles 129 and 215 of the
Constitution respectively is an
inherent power under which it can
deal with contempt of itself. The
jurisdiction vested is a special one

not derived from any other statute
but derived only from Articles 129
and 215. Therefore the
constitutionally vested right cannot
be either abridged, abrogated or cut

down, by any legislation including
the Contempt of Courts Act.
Therefore, the submission of the
contemnor that the impugned order is
vitiated on the ground of procedural
irregularities and that Article 215
is to be read in conjunction with
the provisions of Sections 15 and 17
of the Act of 1971, cannot be
countenanced. Nor can they be
controlled or limited by any statute

::: Downloaded on – 09/06/2013 17:43:56 :::
68
cp464.10

or by any provision of the Code of

Criminal Procedure or any Rules.
The caution that has to be observed
in exercising this inherent power by

summary procedure is that the power
should be used sparingly, that the
procedure to be followed should be
fair and that the contemnor should

be made aware of the charge against
him and given a reasonable
opportunity to defend himself.

The Hon’ble Supreme Court further

held :

“An intention to interfere with the proper
administration of justice is not an
essential ingredient of the offence of
contempt of Court and it is enough if the
action complained of is inherently likely so

to interfere.”

The Hon’ble Supreme Court further held in para 60 :

“60. The maxim “salus populi suprema lex”,

that is “the welfare of the people is the
supreme law” adequately enunciates the idea
of law. This can be achieved only when
justice is administered lawfully, judicially,
without fear or favour and without being
hampered and thwarted, and this cannot be

effective unless respect for it is fostered and
maintained.”

44. Before I pass the appropriate order in

respect of sentence to be imposed upon the

::: Downloaded on – 09/06/2013 17:43:56 :::
69
cp464.10

respondent/alleged contemnor, it will be

worthy to refer to the judgment of the Hon’ble

Supreme Court in the case of Hira Lal Dixit

Vs. State of Uttar Pradesh [ AIR 1954 SC

743 ], where the Supreme Court held, “The

summary jurisdiction exercised by superior

Courts in punishing contempt of their

authority exists for the purpose of preventing

interference with the course of justice and

for maintaining the authority of law as is

administered in the Court and thereby

affording protection to public interest in the

purity of the administration of justice. This

is certainly an extraordinary power which must

be sparingly exercised but where the public

interest demands it, the Court will not shrink

from exercising it and imposing punishment

even by way of imprisonment, in cases where a

mere fine may not be adequate.” Yet, in

another case of David Jude Vs. Hannath Grace

Jude & ors., reported in [ (2002) 10 SCC

760 ], the Hon’ble Supreme Court has

::: Downloaded on – 09/06/2013 17:43:56 :::
70
cp464.10

considered the effect of breach of undertaking

and in the facts of that case, the Supreme

court found that, accepting mere apology of

the alleged contemnor is of no avail.

45. Yet, in another case of J. Vasudevan Vs.

T.R. Dhananjaya [ (1995) 6 SCC 249 ], the

Hon’ble Supreme Court, in para 14, held:

“14. Coming to the mercy
jurisdiction, let it be first
stated that while awarding
sentence on a contemnor the Court

does so to uphold the majesty of
law, and not with any idea of

vindicating the prestige of the
Court or to uphold its dignity.

It is really to see that
unflinching faith of the people in

the courts remains intact. But,
if the order of even the highest
Court of the land is allowed to be
wilfully disobeyed and a person
found guilty of contempt is let
off by remitting sentence on plea

of mercy, that would send wrong
signals to everybody in the
country. It has been a sad
experience that due regard is not
always shown even to the order of
the highest Court of the country.
Now, if such orders are disobeyed,
the effect would be that people
would lose faith in the system of

::: Downloaded on – 09/06/2013 17:43:56 :::
71
cp464.10

administration of justice and

would desist from approaching the
Court, by spending time, money and

energy to fight their legal
battle. If in such a situation
mercy is shown, the effect would
be that people would not knock the
door of the courts to seek

justice, but would settle score on
the streets, where muscle power
and money power would win, and the
weak and the meek would suffer.

That would be a death-knell to the
rule of law and social justice

would receive a fatal blow. This
Court cannot be a party to it and,
harsh though it may look, it is
duty-bound to award proper

punishment to uphold the rule of
law, how so high a person may be.
It may be stated, an IAS officer
is of no consequence, so far as

the sentence is concerned. We
would indeed think that if a high

officer indulges in an act of
contempt, he deserves to be
punished more rigorously, so that
nobody would take to his head to

violate the Court’s order. May we
also say that a public officer,
being a part of the Government,
owes higher obligation than an
ordinary citizen to advance the
cause of public interest, which

requires maintenance of rule of
law, to protect which contemners
are punished.”

46. Therefore, I am of the view that in the

::: Downloaded on – 09/06/2013 17:43:56 :::
72
cp464.10

present case, the ends of justice require that

the respondent Mohd. Osman S/o Mohd. Ismail be

sentenced to undergo simple imprisonment for a

period of three months and to pay a fine of

Rs. 2000/- (Rupees two thousand), in default

of payment of fine, he should further undergo

simple imprisonment for 15 days. Accordingly,

respondent-Mohd. Osman S/o Mohd.

held guilty of having committed civil contempt
Ismail is

and is ordered to suffer imprisonment in terms

of Section 12 of the Contempt of Courts Act,

1971 for a period of three months simple

imprisonment and to pay a fine of Rs. 2,000/-,

in default of payment of fine, he should

undergo simple imprisonment for 15 days.

47. It is needless to mention that in pursuant

to the issuance of non-bailable warrant, the

respondent/alleged contemnor was arrested and

produced before this Court on 6th September,

2011. He was directed to be kept in Harsool

Jail, Aurangabad till the next date i.e. 9th

::: Downloaded on – 09/06/2013 17:43:56 :::
73
cp464.10

September, 2011 and thereafter also he was

kept in Harsool Jail till today. Therefore, he

is entitled for set off from the date of

arrest till this date. The contempt

proceedings qua this respondent nos.1 and 2

i.e. Mohd. Osman Mohd. Ismail stands concluded

and disposed off. Respondent Mohd. Osman Mohd.


     Ismail       
                  should      be    sent      to

undergo remaining part of the sentence. He is
Harsool Jail to

made aware that, he has right of appeal under

Section 19 of the Contempt of Courts Act,

1971.

48. At this stage, the learned counsel for the

respondent/alleged contemnor submits that

sentence may be suspended. However, in the

peculiar facts and circumstances of this case

and for the reasons recorded in the order

dated 6th September, 2011, this Court find it

very difficult to suspend the sentence and

release the alleged contemnor, since there is

no assurance from the counsel appearing for

::: Downloaded on – 09/06/2013 17:43:56 :::
74
cp464.10

the respondent/contemnor that in case sentence

is suspended, the respondent will make himself

available to undergo remaining part of the

sentence. In that view of the matter, such

prayer is rejected. As stated earlier, the

respondent-Mohd. Osman S/o Mohd. Ismail should

be sent to Harsool Jail for undergoing

this

remaining part of the sentence. The copy of

judgment should be supplied to

respondent-Mohd. Osman S/o Mohd. Ismail by the

Registry free of cost forthwith without any

delay.

49. At this juncture, it will not be out of

place to mention and appreciate that, Shri

S.P. Chapalgaonkar, the learned counsel

appearing for the respondent nos.1 and 2 had

adopted very fair approach throughout the

hearing of this Contempt Petition and also

rendered very able assistance to this Court.

50. So far as respondent nos. 3 and 4 are

::: Downloaded on – 09/06/2013 17:43:56 :::
75
cp464.10

concerned, initially no notice was issued to

them and therefore, this Court feel it

appropriate to dispose of this Contempt

Proceedings qua respondent nos.3 and 4 as

well.

. Accordingly Contempt Petition stands

disposed of. Original papers of Writ Petition

no. 2177/2009, should sent back forthwith to

the Writ Section of the Registry.

[ S.S. SHINDE, J ]
ga s/cp464.10

::: Downloaded on – 09/06/2013 17:43:56 :::