Jama Masjid Sunni Halwai Lane … vs State Of Chhattisgarh & Others on 9 May, 2011

Chattisgarh High Court
Jama Masjid Sunni Halwai Lane … vs State Of Chhattisgarh & Others on 9 May, 2011
       

  

  

 
 
      HIGH COURT OF CHATTISGARH : BILASPUR       

                WRIT PETITION NO 2625 OF 2005


             Jama Masjid Sunni Halwai  Lane  Raipur  & Others

                                                        ...Petitioners


                           Versus



             State of Chhattisgarh & Others
                                               ...Respondents



!  Shri  Ravish  Chandra  Agrawal Senior Advocate  with  Ms Fouzia Mirza Ms Farah Minhaz  & Shri R K Pali Advocates  for  the


^  Shri  Kishore  Bhaduri Additional  Advocate General with Shri Ajay Dwivedi Deputy Government Advocate for the State respon


 CORAM: Honble Shri Satish K Agnihotri J 


 Dated: 09/05/2011


: Judgement 


                          O R D E R

(Delivered on this 09th day of May, 2011)

(Writ Petition under Article 227 of the Constitution of
India)

1. By this petition, the petitioners, firstly; seek a

direction to the respondents No.1 to 3 to cancel the lease,

if any, granted to the respondent No.5 and/or to revoke the

same. Secondly; a direction be issued to the respondents

No.1 to 3 to correct the revenue record with respect to

Khasra No.736 of Civil Station (Civil Lines), Raipur, which

are recorded as plot No.8/1 to 8/4 block No.16 total area

34883 sq.ft. Thirdly; quashing the proceedings pending

before the Nazul Officer, Raipur, being without jurisdiction

and a last prayer was added by amendment, ordered on 6-4-

2010, that the order dated 31-7-2004 passed by the Nazul

Officer in Revenue Case No.80/B-12/2003-04, as also against

the order dated 15-9-2004 passed by the

Nazul Officer, Raipur in Revenue Case No.80/B-121/03-04,

order dated 14-6-2005 passed by the Additional Collector,

Raipur in Revenue Case No.121/2-B/2004-05.

2. The indisputable facts, in brief, as projected by the
petitioners, for proper adjudication of the case, are that
the first petitioner – Jama Masjid is a public trust
registered with the Registrar of Public Trust, Raipur. The
trust has immovable properties including the
petition-schedule land known as Risali Naka, Eedgah-Kabristan
admeasuring 38082 sq.ft. After the Indian Wakf Act came into
force, the said property was registered as a wakf property
with the Wakf Board, Bhopal.

3. The respondent No.5 – M/s Raipur Transport Company Pvt.
Ltd., was granted a lease of 14880 sq.ft. out of the said
land, which was revoked on the application of Munshi
Mehruddin and renewal was refused in 1965. The khasra
No.736/89 of Civil Lines, Raipur, and shown as Risali Naka,
Eedgah-Kabristan, was divided into block No.16, plot No.8/1
area of 18353 sqft., plot No.8/2 area of 70 sq.ft., plot
No.8/3 area of 14880 sq.ft. and plot No.8/4 area of 810
sq.ft. Total area 34113 sq.ft.

4. There is pre-existing graveyard and many graves are
still there. Despite grant of lease, the respondent No.5 was
never in physical possession of the petition-schedule land.
On the application of Munshi Mehruddin made in the year 1965,
on spot inspection, a discrepancy was found in allotment of
lease of plot No.8/3 of block No.16 granted to the respondent
No.5. It was recommended to treat the whole area of khasra
No.736/89 as Kabristan. It is a wakf property under the
management and control of Jama Masjid, Raipur.

5. The respondent authorities have handed over the
possession of the said land to the respondent No.5. The
Nazul Officer by order dated 31-7-2004 (Annexure – P/9)
directed the petitioners to remove the encroachment from
khasra No.736, block No.16, plot No.8/3 area of 14880 sq.ft.
Thereafter, on 15-9-2004, the Nazul Officer after having
heard both the parties observed that Fourth Civil Judge,
Civil Court, Raipur, has passed an interim injunction holding
that the respondent No.5 was in possession and ownership of
the petition-schedule land, thus it was held that the
respondent No.5 was the owner of the petition-schedule land.
It was further held that the land in dispute was not the
property of Sunni Muslim.

6. Since the petitioners have not complied with the order
of Civil Court, the order of encroachment was passed
accordingly for non-compliance of the order
passed by the Civil Court. Order of removal of encroachment
was passed on 15-9-2004 (Annexure – P/11)
that is under challenge in this petition. Thereafter, the
Additional Collector, Raipur, in appeal, by impugned order
dated 14-6-2005 (Annexure – P/12) dismissed the appeal filed
by Jama Masjid finding the order passed by the Nazul Officer
as just & proper. Thus, this petition.

7. Shri Agrawal, learned senior counsel appearing with Ms.
Fouzia Mirza, Ms. Farah Minhaz & Shri R.K. Pali, learned
Advocates for the petitioners, would submit that the impugned
orders passed by the authorities are without jurisdiction.
The respondent No.3 could not have passed the order of
removal of encroachment in a proceeding under Section 129 of
the Chhattisgarh Land Revenue Code, 1959 (for short “the
Code, 1959”). Shri Agrawal would further submit that the
respondent No.5 was never in possession of the land, thus the
proceedings under Section 250 of the Code, 1959 could not
have been initiated. The action of the respondent authorities
is politically motivated and the impugned order was passed on
the basis of instructions received from the office of the
Chief Minister as well as the Home Minister. The respondent
authorities failed to consider the report of Annexure – P/5
submitted by the Extra Assistant Commissioner.

8. On the other hand, Shri Kishore Bhaduri, learned
Additional Advocate General appearing with Shri Ajay Dwivedi,
learned Deputy Government Advocate for the State/respondents
No.1 to 4, would submit that the allegation that the Nazul
Officer has acted on undue pressure of the office of the
Chief Minister as well as the Home Minister is without any
basis. The application was moved before the Chief Minister
in ‘Jandarshan programme’ wherein it was simply referred to
the Collector without any direction and instruction. The
Home Minister has also not interfered with the quasi judicial
process of Nazul Officer. Simply, the application made to
the Home Minister was sent to the Collector without any
observation and direction and, as such, the allegation of
interference and undue pressure of the office of Chief
Minister as well as Home Minister is baseless and
unsubstantiated.

9. Shri Bhaduri would further submit that the order of the
Nazul Officer is in consonance with the order passed by the
competent Civil Court granting interim injunction in favour
of the respondent No.5. The petitioners had also filed a
civil suit being No.3-A of 69 (Abdul Habib & Others v. The
State of Madhya Pradesh & Others) for declaration and
permanent injunction, which was dismissed for want of
prosecution. Thereafter, an application for restoration was
also dismissed. The petitioners have not taken the said
decision to the superior Courts, but accepted the decision
and, as such, the petitioners cannot question the order
passed by the Nazul Officer at this stage. The same is just
& proper.

10. Shri Rajeev Shrivastava, learned counsel appearing with
Shri Sourabh Dangi, Shri Malay Shrivastava & Shri Sameer
Shrivastava, learned Advocates for the respondent No.5, would
submit that the petitioners filed a civil suit for
declaration of the title on the land, bearing khasra No.736.
By order dated 16-11-1976, the application for amendment was
dismissed by the fourth Civil Judge. Thereagainst, a
Revision, being civil revision No.1205 of 1976 (Abdul Habib &
Others v. Shri Mohanlal Vyas & Another), was preferred by the
first petitioner before the High Court of Madhya Pradesh,
which was dismissed by order dated 24-11-1976. Thereafter,
the civil suit filed by the petitioners was also dismissed
for want of prosecution on 24-2-1982 and an application for
restoration of the same was also dismissed. Thereafter, no
action was taken by the petitioners and, as such, the same
became final. Shri Shrivastava would further submit that the
respondent No.5 has also filed a civil suit for declaration
being civil suit No.38-A/1982 (M/s Raipur Transport Company
Pvt. Ltd. v. Abdul Habib & Others) for declaration and
perpetual injunction, wherein an interim injunction was
granted on 9-7-1982 in favour of the respondent No.5.

11. Shri Shrivastava would next submit that the petitioners,
after an order of interim injunction passed in favour of the
respondent No.5, made illegal encroachment on the petition-
schedule land. Accordingly, an application was made before
the Nazul Officer and the Nazul Officer by order dated 15-9-
2004 having considered the order passed by the Civil Court
and subsequent encroachment by the petitioners directed
removal of the encroachments, which was in accordance with
law. The petitioners have defied the order passed by the
Civil Court without taking any permission of the Civil Court
or without seeking modification or vacation of the interim
injunction by the Civil Court when they were party defendants
to the civil suit, by encroaching the suit land. Thus, there
is no merit in this case and this petition may be dismissed.

12.
In rejoinder, Shri Agrawal, learned senior counsel would
submit that the respondent No.5 was never in physical
possession of the petition-schedule land, therefore, no
proceedings can be initiated under Section 250 of the Code,
1959. The petitioners have not been afforded any
opportunity of hearing while passing the order dated 1-9-2004
(Annexure – P/10).

13. I have heard rival contentions advanced by the learned
counsel appearing for the parties, perused the pleadings and
the documents appended thereto.

14. The petitioners have clubbed reliefs arising from
separate and different causes of action in the petition.
However, at the time of hearing, learned counsel appearing
for the petitioners gave up other reliefs except the relief
No.7.6 to quash the orders dated 31-7-2004 & 15-
9-2004 passed by the Nazul Officer and the order dated 14-6-
2005 passed by the Additional Collector, Raipur, confirming
the order dated 15-9-2004 passed by the Nazaul Officer, as is
evident from the written submissions submitted by the
petitioners. Even otherwise, different cause of action
cannot be clubbed together under the provisions of law.
(See: Indrajit Markam v. State of Chhattisgarh & Others1).

15. The petitioners filed the civil suit No.3-A of 69
(Annexure – R/5 – 28) for declaration and permanent
injunction wherein Shri Mohanlal Vyas, Director, Raipur
Transport Company (respondent No.5 herein) was defendant
No.3. Collector, Raipur, Nazul Officer, Raipur were also the
defendants No.2 & 4, respectively. In the said civil suit,
the petitioners prayed for following reliefs :

“(i) It be declared that the
suit property the
Kabarstan and Idgah shown
in the plaint map by
letters A B C D are wakf
property and the
Defendant Govt. was/is
not entitled to lease out
such wakf property.

               (ii) The     defendants     be
                    restrained  by  permanent
                    injunction from  entering
                    or   in  any  way  taking
                    possession  of  the  suit
                    property,   by  executing
                    the  above said order  in
                    Misc.Cr.C.No.97/64,    or
                    otherwise.

               (iii)      That the defendants
                    by order to pay the costs
                    of   this  suit  to   the
                    plaintiffs, and"


16. Thereafter, an application for amendment in the civil

suit was filed on the basis of notification published in the

gazette dated 1-11-1974 (Annexure –

R/5-18) wherein the khasra No.736 measuring 0.89 acres

situated in Baijnathpara Ward, Raipur, was notified as ‘wakf

property’. The application for the said amendment was

dismissed on 16-11-1976. Thereagainst, a civil revision was

preferred before the High Court of Madhya Pradesh at

Jabalpur, being civil revision No.1205 of 1976, (Annexure –

R/5-19). The said civil revision was dismissed on 4-11-1976

holding as under :

“2. The contention raised on
behalf of the applicants
is that the Wakf Board
has now declared the suit
land as the Wakf Property
with effect from 15-6-

1974 and this has been
duly published in M.P.

Rajpatra dated 1-11-1974.
Thereafter, the amendment
ought to be allowed.

               3.   In    my   opinion,   the
                    decision   of  the   Wakf
                    Board  cannot effect  the
                    defendant  No.1's  rights
                    and  the  Wakf Board  can
                    only    acquire    rights
                    subject  to the  decision
                    of the suit."

17. Subsequently, the civil suit No.3-A/69 was dismissed on

24-2-1982 (Annexure – R/5-5) for want of prosecution.

Thereagainst, the petitioners preferred an application for

restoration of civil suit being M.J.C. No.7/2001 (Abdul Habib

& Others v. State of M.P. & Others). The said application

was dismissed on 13-10-2003 (Annexure – R/5-6) by the Civil

Court. Admittedly, no appeal/revision was preferred by the

petitioners against the order dated 13-10-2003 passed by the

Civil Judge Class – II, Raipur. Thus, all the claims of the

petitioners including on the basis of notification declaring

a portion of the land as wakf property came to an end, as no

challenge, thereafter, was made to the superior Courts.

18. Thereafter, the respondent No.5, herein, filed a civil
suit No.38-A/82 (Annexure – R/5-29) before the Court of Civil
Judge Class-II, Raipur against the petitioners seeking
declaration and perpetual injunction on the nazul land
comprised in plot No.8/3, block No.16 area 14880 sq.ft. or
thereabout a portion of khasra No.736 situated in civil
station ward near Salem Girls English School, Raipur city,
Raipur. In the said civil suit, the respondent No.5 prayed
for following reliefs :

“(a) A declaration that the
Plaintiff is the sole,
absolute and exclusive
owner of the suit
property in its own right
as the permanent lessee
of the State of Madhya
Pradesh.


               (b)  A  declaration  that  the
                    plaintiff is entitled  to
                    retain possession of  the
                    suit  property,  both  on
                    the    basis    of    its
                    subsisting title as  well
                    as  in terms of the final
                    orders    dated   25-8-64
                    passed   by   the    sub-
                    Divisional     Magistrate
                    under   Section   145(4),
                    Cr.P.C. in Misc. Criminal
                    Case No.97 of 1964.

               (c)  A  declaration  that  the
                    Defendants never had  nor
                    have how any right, title
                    or  interest of any  kind
                    in  the suit property  or
                    in any portion thereof.

               (d)  A   perpetual  injunction
                    restraining           the
                    Defendants,         their
                    members, servants, agents
                    or     employees,    from
                    interfering    with    or
                    disturbing the possession
                    of the plaintiff over the
                    suit property."

19. The Civil Judge, by order dated 9-7-1982 (Annexure – R/5-

7), on perusal of the reports, passed the following order

holding, prima facie, the respondent No.5 as owner and in

possession of the suit land to maintain status

quo :

“vr% vkosnu vk- vk-1
fopkj ckn Lohdkj djds vkxkeh
vkns’k rd vUrfje vLFkk;h
fu”ks/kkKk oknh ds i{k esa ,oa
izfroknhx.k ds fo:) tkjh djds
izpfyr dh tkrh gS fd
izfroknhx.k oknxzLr Hkwfe
[kljk ua- 737 CykWd ua- 16
IykV ua- 8@3 jdck 14880 oxZ
QhV fLFkr flfoy LVs’ku okMZ]
jk;iqj dh ;FkkfLFkfr cuk;s
j[ksaAA bl oknxzLr Hkwfe ij
oknh ds dCts ,oa LokfeRo ij
fdlh izdkj ls gLr{ksi ;k cykr
dCtk ugha djsaxs vkSj u gha os
vius izfrfuf/k;ksa]
deZpkfj;ksa ;k vU; yksxksa ls
gLr{ksi ;k cykr] dCtk oknxzLr
Hkwfe ij djok;saxsAA”

20. Thereafter, it appears that the said civil suit filed by

the respondent No.5 is still pending consideration. No steps

have been taken by the petitioners to get either the same

vacated or modified by the Civil Court. The competent Civil

Court is in seisin of the matter in dispute.

21. According to the learned counsel appearing for the
respondent No.5, encroachment was made by the petitioners on
the teeth of the order passed by the Civil Court on the
petition-schedule land wherein the order of the civil Court
to maintain status quo in respect of the possession was
passed. Thus, the respondent No.5 was forced to make an
application before the Collector on 7-1-2004 (Annexure – R/5-

25) seeking compliance of the order passed by the Civil Judge
in the matter. A copy of the said application was marked to
the Home Minister, State of Chhattisgarh and other officers.

22. The Nazul Officer issued notice to the petitioners vide
Annexure – R/5-26 (i) to the effect that they have made
encroachment in the petition-schedule land and, as such, why
the same may not be removed. A public notice vide Annexure –
R/5-26 (ii) was also issued that on 25-8-2004 the illegal
encroachments on the petition-schedule land shall be removed.
On 25-8-2004 the proceeding was initiated wherein all the
concerned parties were present. On 31-7-2004 (Annexure –
P/9), the Nazul Officer passed the order to inform the
petitioners to remove the encroachment within a period of 15
days, failing which it was proposed to take proper action for
removal.

23. Learned counsel appearing for the petitioners urge that
the order dated 31-7-2004 was passed at the instance of the
Chief Minister as well as Home Minister. I have perused the
letter addressed to the Chief Minister wherein the case was
referred to the Collector without any observation or
direction to consider the case in a particular manner. Thus,
it cannot be held that there was any undue influence or
pressure on the Nazul Officer before passing the order.
Though, direction/letter of the Home Minister was not
produced, however, on perusal of the observation made by the
Nazul Officer, it appears that the Home Minister has directed
to take steps on the application of the respondent No.5 in
accordance with law. Thus, it cannot be held that the order
dated 30-7-2004 is vitiated, on the ground that there was a
simple reference to the letters from the office of the Chief
Minister and Home Minister, but it was not found that any
order was passed on the basis of above-stated letters. On
that date, it was decided to inform the petitioners to remove
the encroachment within 15 days.

24. It appears that no steps have been taken by the
petitioners for removal, thus the final order was passed on
15-9-2004. In the order dated 15-9-2004 there is a clear
mention that as per the order passed by the Civil Judge the
petition-schedule land was in ownership and possession of the
respondent No.5. It was further observed that after the
order was passed by the competent civil Court, the
petitioners had encroached upon the land in dispute. Thus,
the order of removal of the encroachment was passed on 15-9-
2004. Thereagainst, the appeal before the Additional
Collector was also dismissed affirming the order passed by
the Nazul Officer, on 14-6-2005.

25. The submission of the learned senior counsel appearing
for the petitioners that the Nazul Officer could not have
passed the order under Section 129 of the Code, 1959, is
misplaced, as there was no application for demarcation,
whereupon, impugned orders were passed.

26. On perusal of the order dated 31-7-2004, it does not
reflect that the order was passed on any other application,
which might have been moved for demarcation. The order was
passed on the basis of above-stated application, which was
clearly made for removal of the encroachment from the
petition-schedule land. Reference of the petitioners to the
order dated 16-1-2004 wherein there is a discussion about the
demarcation of the petition-schedule land is not conclusive
to the effect that the order was passed in the application,
which was made for demarcation. Thus, the contention of the
learned counsel for the petitioners fails on facts.

27. The contention of the learned counsel appearing for the
petitioners that the respondent No.5 was never in physical
possession of the petition-schedule land and, as such, no
proceedings under Section 250 of the Code, 1959 could be
initiated cannot be decided in this petition, as the dispute
with regard to ownership and possession is pending
consideration in the Court of Civil Judge in civil suit
No.38-A/82 filed by the respondent No.5 and the interim order
dated 9-7-1982 passed by the Civil Judge is still operative
not being modified or vacated subsequently. The report of
Extra Assistant Commission (Annexure – P/5) can also not be
examined at this stage, as the dispute, as aforestated, in
respect of the petition-schedule land, is pending
consideration before the Civil Court. The notification in
respect of the wakf property was sought to be incorporated in
the civil suit No.3-A/69 by application for amendment, which
was rejected and the civil revision preferred, thereagainst,
was also rejected by the High Court of Madhya Pradesh holding
that all the disputes would be subject to final decision of
the civil suit. Thereafter, the civil suit was dismissed for
want of prosecution and even the restoration application was
also dismissed, which had attained finality for want of
challenge in the superior Courts. Thus, there is no merit in
this case.

28. The order passed by the Nazul Officer was in consonance
of the order of status quo passed by the Civil Judge. Thus,
the same cannot be held as vitiated, if the petitioners have
any grievance, the petitioners could have approached the
civil Court for modification/vacation of the interim order
dated 9-7-1982 passed by the competent Civil Court, which is
still in existence, in favour of the respondent No.5.

29. This Court on 24-6-2005 having considered the case of
the petitioners, stayed the dispossession/demolition and
further directed to maintain status quo till the next date of
hearing. Subsequently, after hearing both the parties on 8-9-
2006, the interim order dated 24-6-2005 was modified as under
:

“Shri Kanak Tiwari,
learned Sr. Advocate appearing
for applicant-respondent No.5
would submit that by virtue of
interim order made by the
civil Court, from 1982 till
date he has been in possession
and enjoyment of the suit
schedule property and without
disclosing the fact to the
Court, the other side has
secured the interim order at
the hands of this Court on
24.06.2005 and in view of this
undeniable fact, the interim
order is liable to be vacated.

On the other hand, learned
counsel for the other side was
also heard.

Essentially what this
Court directed vide interim
order dated 24.06.2005 is
directing the parties to
maintain status quo that
obtained as on that date. It
is clarified that if the 5th
respondent-applicant has had
the benefit of the interim
order in his favour as on
24.06.2005, status quo order
passed by this court would not
alter the effect and
consequence of such interim
order. With these observations
this M.(W)P. No.2965 of 2006
is disposed of.”

30. Thus, the interim order passed by the civil Court

continues, as the same was not modified by this Court while

directing to maintain status quo as on 24-6-2005.

31. However, having regard to the facts situation of the
case that the matter is pending consideration before the
Civil Court for about three decades, the Civil Court is
directed to consider and decide the same, in accordance with
law and on its own merits, as early as possible preferably
within a period of six months from the date of receipt of a
copy of this order.

32. It is well settled proposition of law that the writ

Court is not the proper forum for adjudication of the

property disputes or disputes relating to tile. (See :

Mohammed Hanif v. The State of Assam2, M/s. Hindustan Steel

Limited, Rourkela v. Smt., Kalyani Banerjee and Others3 and

Shalini Shyam Shetty and Another v. Rajendra Shankar Patil4).

33. Resultantly, the writ petition, being bereft of merit,

is liable to be and is hereby dismissed.

34. There shall be no order asto costs.

J u d g e

2 Smt Hira Bai vs 3 Oriental Insurance Company … on 29 April, 2011

Chattisgarh High Court
2 Smt Hira Bai vs 3 Oriental Insurance Company … on 29 April, 2011
       

  

  

 
 
  HIGH COURT OF CHATTISGARH BILASPUR          

 Misc Appeal No 847 of 2004 

 1 Heman 

  2 Smt Hira  Bai

                                               ...Petitioners

                           Versus

 1 Birjuram

  2 Prem  Chand  Jain

  3 Oriental  Insurance Company Limited

                                               ...Respondents

! Mr  Wasim Miyam counsel for the Petitioners

^ Mr P P Sahu counsel for respondents No 1 and 2 Mr Avinash Mishra counsel for respondent No 3 

 CORAM : Honble Shri Justice Rangnath Chandrakar   

 Dated : 29/4/2011

: Judgement 
                             ORDER

29-04-2011

1. This is claimants’ appeal for enhancement of the

compensation awarded by the Additional Motor Accident Claims

Tribunal, Dhamtari (for short, “the Tribunal”) vide award

dated 17-1-2004 passed in Claim Case No. 133/2004.

2. As against the compensation of Rs.11,52,000/- claimed
by the appellants/claimants, unfortunate parents of deceased
Damru, by filing a claim petition under Section 166 of the
Motor Vehicles Act, for his death in the motor accident on
25-4-2003, the Tribunal awarded a total sum of Rs. 55,000/-
as compensation along with interest @ 6% per annum from the
date of filing of the claim petition till the date of actual
payment.

3. Shri Wasim Miyam, learned counsel appearing for the
appellants vehemently argued that the Tribunal has erred in
awarding low compensation of Rs. 55,000/- only though the
appellants’ son deceased Damru was only son upon whom the
appellants depended at their old age.

4. Per contra, Shri Avinash Mishra, learned counsel
appearing for respondent No.3 Oriental Insurance Company
Limited, supporting the impugned award contended that as
deceased Damru was not having any independent income of his
own, the compensation of Rs. 55,000/- awarded by the
Tribunal is just and proper compensation in the facts and
circumstances of the present case.

5. Shri P.P. Sahu, learned counsel for respondents No. 1
and 2 the owner and driver of the offending vehicle also
supported the award.

6. I have heard learned counsel for the parties, perused
the impugned award and record of the Tribunal.

7. On perusal of the record, it is clear that appellants’
son Damru was shown to be 5 years of age in his postmortem
report (Ex.P/7) at the time of accident. Heman (AW/1),
father of the deceased Damru, has categorically deposed in
his statement that at the time of accident, his son Damru
was about five years old and was a student of Ist standard.
On a close scrutiny of the aforesaid evidence, it is proved
that the age of deceased Damru was certainly five years at
the time of accident.

8. Hon’ble the Supreme Court while considering as to what
would be the just and proper compensation for the death of a
child aged about 7 years in the case of Oriental Insurance
Company Ltd., Vs. Syed Ibrahim and others, reported in 2007
(4) TAC 385 (SC) has observed in paras 9 & 10 which read as
below:

“9. This court in Lata Wadhwa while
computing compensation made distinction
between the deceased children falling
within the age group of 5 to 10 years and
age group of 10 to 15 years.

10. In cases of young children of tender
age, in view of uncertainties abound,
neither their income at the time of death
nor the proposals of the future increase
in their income nor chances of
advancement of their career are capable
of proper determination on estimated
basis. The reason is that at such an
early age, the uncertainties in regard to
their academic pursuits, achievements in
career and thereafter advancement in life
are so many that nothing can be assumed
with reasonable certainty. Therefore,
neither is the income of the deceased
child capable of assessment on estimated
basis nor is the financial loss suffered
by the parents capable of mathematical
computation.”

9. The compensation of Rs. 55,000/- awarded by the

Tribunal when examined in the context of the above-mentioned

dictum of the Hon’ble Supreme Court in the case of Oriental

Insurance Co. Ltd., (supra) and the fact that the

appellants’ son Damru was about 5 years on the date of the

accident, I am satisfied, is just and proper compensation

and the same does not call for any interference in this

appeal.

10. Accordingly, the appeal filed by the
appellants/claimants for enhancement of the compensation is
liable to be dismissed and is hereby dismissed.

11. No order as to costs.

JUDGE

S G Parulkar vs State Of Chhattisgarh & Others on 22 February, 2011

Chattisgarh High Court
S G Parulkar vs State Of Chhattisgarh & Others on 22 February, 2011
       

  

  

 
 
  HIGH COURT OF CHATTISGARH  BILASPUR         

 WRIT PETITION S NO 3534 OF 2010     

 S G Parulkar
                                        ...Petitioners
                          Versus

 State of Chhattisgarh & Others
                                         ...Respondents

! Shri Manish Sharma Advocate for the petitioner

^ Shri Sushil Dubey Govt Advocate for the State Shri P S Koshy Advocate for the respondent No 3

CORAM: Honble Shri Satish K Agnihotri J

Dated: 22/02/2011

: Judgement

ORDER ORAL

Passed on this 22nd day of February 2011

Writ Petition under Article 226 of the Constitution of India

1. Heard learned counsel for the parties.

2. By this petition, the petitioner seeks to challenge
the legality and validity of the order dated 9-7-2010
(Annexure – P/1) by which the petitioner, who is working
on the post of Deputy Director, Indravati Tiger Reserve,
Bijapur, has been transferred to Pithora, Mahasamund.

3. Learned counsel appearing for the petitioner submits
that the impugned order has been passed only to
accommodate the respondent No.3. On perusal, the impugned
order would show that the respondent No.3 has been
transferred on his own request from Pithora, Mahsamund to
Indravati Tiger Reserve, Bijapur, whereas the petitioner
has been transferred on the ground of administrative
exigency. Shri Sharma further submits that since 30-9-
2008, this is the 3rd transfer of the petitioner. Thus,
the petitioner suffers from frequent transfers. The
impugned order has been passed with mala fide intention
only to accommodate the respondent No.3.

4. On the other hand, learned counsel appearing for the
State submits that the transfer order has been passed by
the competent authority on the basis of administrative
exigency and there is no violation of statutory rules in
passing the order. Shri Dubey further submits that the
transfer affected on the own request of an employee is
permitted and the same cannot be challenged by another
employee who has posted in his place.

5. Learned counsel appearing for the respondent No.3
submits that the petitioner has suppressed the fact that
he was posted at Bijapur since 2003 and he was transferred
at the instance of Election Commission in the light of the
fact that the petitioner was posted at Bilaspur for the
last five years. Thus, there is no illegality or
irregularity in the impugned order and the petition
deserves to be dismissed.

6. I have heard learned counsel appearing for the
parties, perused the pleadings and the documents appended
thereto.

7. Two transfer orders, which are passed within a period
of nine months, cannot come within the purview of frequent
transfers. Frequent transfer means, an employee is
transferred frequently on several occasions. The
grievance of the petitioner that the impugned order comes
within the ambit of a frequent transfer, is not well
established and not sustainable in law. The petitioner
has not alleged any mala fide against the persons who are
competent or have passed the transfer order except that he
has been transferred only to accommodate the respondent
No.3.

8. The above-stated allegation does not come within the
purview of mala fide, as the same has not been pleaded
against the person passing the order, but against the
person who has been transferred in place of the
petitioner. Thus, this is not a case of mala fide.

9. Next contention of the learned counsel appearing for
the petitioner is that subsequently during pendency of
this petition, the order dated 15-7-2010
(Annexure – P/5) has been passed whereby the respondent
No.3 was posted in place of the petitioner was neither
with the approval of the State Government nor on the basis
of recommendation made by the Director, Wild Life, but on
the basis of recommendation made by the Principal Chief
Conservator of Forest, State of Chhattisgarh, Raipur.
Accordingly, the order posting the respondent No.3 in
place of the petitioner is bad and vitiated.

10. I have perused the letter dated 6-1-2010 (Annexure –
R/1) of the Principal Chief Conservator of Forest, State
of Chhattisgarh, Raipur. Thereafter, the order dated 19-
11-2009 (Annexure – P/4) was passed by the Principal
Secretary to the Government of Chhattisgarh, Department of
Forest. In the letter dated 6-1-2010, it was clearly
stated that the petitioner was posted at Bijapur for a
long period i.e. since 21-7-2003. Thus, the petitioner
may be considered for transfer to any other place.
Accordingly, the impugned order was passed that does not
change the character of the transfer and, as such, the
posting of the respondent No.3 in place of the petitioner
cannot be faulted with. In view of foregoing, the
contention of the petitioner cannot be countenanced.

11. Be that as it may, it is a trite law that
transfer/posting is an incidence of service. The Court
should not interfere with the transfer/posting order
unless there is malice, infringement of statutory rules
and regulations. In the case on hand, the petitioner has
failed to establish any of the aforestated grounds. The
employee may be posted anywhere at the instance of the
employer in public interest and administrative exigency.
Further, it is for the Government to post another person
if any vacancy arises on account of transfer/posting of an
employee. Thus, the impugned order warrants no
interference. (See E.P.Royappa v. State of Tamil Nadu and
another1, Shilpi Bose (Mrs.) and others v. State of Bihar
&
another2, State of M.P. and another v. S.S.Kourv and
others3, Mohd. Masood Ahmad v. State of U.P. & Others4
Chief Commercial Manager, South Central Railway,
Secunderabad & Others
v. G. Ratnam & Others5 and Airports
Authority of India v. Rajeev Ratan Pandey & Others6).

12. Applying the well-settled principles of law to the
facts of the case on hand and for the reasons mentioned
hereinabove; there is no merit in the case.

13. In the result, the writ petition is dismissed. No
order asto costs.

J u d g e

National Insurance Co Ltd vs 4 United India Insurance Co Ltd on 19 January, 2011

Chattisgarh High Court
National Insurance Co Ltd vs 4 United India Insurance Co Ltd on 19 January, 2011
       

  

  

 
 
  HIGH COURT OF CHATTISGARH AT BILASPUR          

 M A  No 869 of 2000 

 National Insurance Co Ltd
                                              ...Petitioners

                         Versus
 1 Smt Renue 

  2 Bhagwan Singh 

  3 Sanjay Kumar Chourasiya 

  4 United India Insurance Co Ltd
                                             ...Respondents


! Shri B N Nande counsel for the appellant

^ Shri Abhishek sharma Advocate appears on behalf of Shri R Pradhan counsel for respondent No 1 None for respondents No 2 & 3 

 CORAM: Honble Shri Justice R L Jhanwar  

 Dated: 19/01/2011

: Judgement 

                            ORDER

Passed on 19012011

APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT 1988

This is an appeal by the National Insurance Company
Limited against the order dated 04.02.2000 passed by the 5th
Additional Motor Accidents Claims Tribunal, Durg in Claim
Case No.36/95 whereby the learned Claims Tribunal has
awarded Rs.25,000/- as total compensation to the respondent
No. 1/claimant in an injury case.

2. Brief facts of the case, in a nutshell, are on fateful
day of 15.05.1995 at about 7.00 a.m. when the respondent and
husband were going from Bhilai to Durg on scooter bearing
No. M.P. 24/7935, at the same time, the respondent No.2, who
was driving TATA tipper bearing registration M.P. 24 C/2072
(for short `the offending vehicle’), owned by respondent
No.3 and insured by the appellant, in a rash and negligent
manner, dashed the scooter after hitting a tree. Due to
such dash, both the respondent No.1 and her husband got
serious injuries, as a result of which, the husband of
respondent No.1 died instantaneously.

3. As against the compensation of Rs.1,00,000/- sought by
the respondent No.1 by filing claim petition 166 of the
M.V.Act for the injuries sustained by her in the motor
accident on 15.5.1995, the learned Claims Tribunal, on close
scrutiny of the evidence led by the parties and submissions
made by them, awarded a sum of Rs.25,000/- with interest at
6% per annum from the date of filing of claim petition till
realization. The Tribunal further directed respondents No.1
to 3 to pay compensation amount jointly and severally. It
is this order, which is under challenge by the insurer /
appellant.

4. Shri B.N.Nande, learned counsel for the appellant
argued that in this case, doctor has not been examined,
therefore, no compensation should be awarded to the
claimant. The next argument is that the driver was holding
a licence No.11366 which was found to be fake, after due
investigation. According to him, the learned Tribunal had
appointed a commissioner to take the evidence of the persons
working in the Office of Regional Transport Authority at
Jhansi and Shri N.L.Shrivastava, Advocate was appointed as
Commissioner to enquire about the matter about the
verification of the licence. The said Advocate conducted
enquiry and took the evidence of Yogendra Kumar Garg C.W.1
and Deepak Khare C.W.2 in which they stated that the
Licensing Authority, Jhansi did not issue any licence to
Bhagwan Singh whereas it was issued in the name of one
Sajjan Singh. Despite all this, the learned Tribunal did
not rely nor did consider the evidence of above witnesses.
It was further argued that the learned Claims Tribunal on
conjectures and surmises has recorded a finding that the
owner of the offending vehicle has after verification of the
licence held by his driver Bhagwan Singh allowed him to
drive the offending vehicle. On this point, the Tribunal
has fastened the liability to pay compensation on the
insurer, which is not in accordance with law.

5. On the other hand, Shri Abhishek Sharma, learned
counsel appearing on behalf of respondent No.1 supported the
impugned judgment.

6. Having heard rival submissions of the parties, I have
perused the record of the Claims Tribunal and impugned
order. A perusal of pleadings and evidence of respondent
No.1 / claimant would clearly reveal that she sustained
injuries in the accident on 15.05.1995 caused by respondent
No.2. It is clear from the record that no doctor has been
examined. But on this count, no compensation should be
awarded is not proper. After perusal of evidence of Smt.
Renue A.W.1, it is clear that she was admitted in Sector –
9, Hospital, Bhilai where she remained for a period of 13
days for the injuries sustained by her on head and stomach.
It is further evident from her evidence that one intestine
was found out and on this point, she did not contradict in
her cross-examination. In rebuttal, neither the insurer nor
the owner could adduce evidence that she has not sustained
injuries in the motor accident. Considering the injuries
sustained by her in the accident and also lost her husband
in that accident, no doubt, she would have definitely
suffered pain and mental agony. Of course, she could not
produce any medical bills but considering the number and
nature of the injuries proved to have been sustained by
respondent No.1 in the motor accident and some amount could
have been spent on the treatment, the Tribunal has rightly
awarded a sum of Rs.25,000/- as total compensation in favour
of respondent.

7. Now so far as the question that remains for
consideration is as to who is responsible to pay
compensation amount awarded by the Tribunal. On perusal of
the impugned order, it is clear that the learned Claims
Tribunal did not see the evidence adduced by the
Commissioner, who was appointed by the learned Tribunal.
After perusal of evidence of Yogendra Kumar Garg C.W.1 and
Deepak Khare C.W.2, it is clear that the driving licence
No.1366 was not issued from Jhansi and was not renewed from
Jhansi. The same was exhibited as Ex.C.3. The copy of
original license was filed and the same was exhibited as
Ex.C.2 (A). A perusal of copy of original licence, it is
clear that licence number was 11366/R/Jhansi/88 and was
renewed upto 20.11.2000 and if both licences verified
together, it appears that licence which was held by
respondent No.1 at the time of accident was fake one because
it was not issued from Jhansi. In this way, it is clear
that licence issued in the name of respondent No.1 is fake
one. The Apex Court while dealing with the question that
whether or not the renewal of a fake driving licence does
not transform it into genuine and insurance company was
justified in repudiating the claim, has held in the case of
Oriental Insurance Co. Ltd. v. Prithvi Raj, 2008 ACJ 733
that once the licence is a fake one, then the renewal cannot
take away the effect of fake licence, and therefore, the
insurance company has no liability.

8. For the foregoing reasons, I am of the opinion that the
learned Claims Tribunal has, without any evidence and
pleadings of the owner, recorded a finding that licence of
the driver / respondent was verified by its owner /
respondent No.3, which is not in accordance with law. The
learned Tribunal has passed the order on conjectures and
surmises and without appreciating the evidence available on
record.

9. In the result, the appeal filed by the insurer is
allowed. Relying upon the above judgment, it is held that
the appellant / insurance company is exonerated and thus not
liable to pay compensation. The impugned order in so far as
its relates to pay compensation of Rs.25000/- by the insurer
and owner, jointly and severally, is set aside. Instead, it
is ordered that the compensation awarded by the Tribunal
shall be paid by the owner i.e. respondent No.3. The
appellant / insurer may initiate proceedings for recovery of
compensation, if any, paid by it from the owner. No order
as to costs.

Judge

Manoj Rathi & Others vs State Of Madhya Pradesh & Others on 8 December, 2010

Chattisgarh High Court
Manoj Rathi & Others vs State Of Madhya Pradesh & Others on 8 December, 2010
       

  

  

 
 
            HIGH COURT OF CHATTISGARH AT BILASPUR       

               WRIT PETITION  No 5875 of 2000


    Manoj Rathi & Others
                         ...Petitioners


                       VERSUS

    State   of   Madhya   Pradesh   &   Others
                                               ...Respondents



!  Shri Bhaskar Payasi Advocate for the petitioners


^  Shri P K Bhaduri Panel Lawyer for the State/respondent No 1&3 Shri Ajay Singh Advocate on behalf of Shri B P Sharma  Advoc



 CORAM:  Hon'ble Shri Satish K Agnihotri J

 Dated: 08/12/2010

: Judgement 

 PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA           

                      ORDER (ORAL)

(Passed on 08th day of December, 2010)

1. By this petition, the petitioners seek quashing of the

notification issued under section 4(1), 6(1) and 17(1) and

the award dated 08.12.1999 (Annexure P/10), of the Land

Acquisition Act, 1894 (hereinafter referred to as `the Act,

1894′).

2. The indisputable facts, in nutshell, as projected by
the petitioners are that the petitioners are the owner of
the disputed land situated at village Mandir Hasaud, Tahsil
Arang, District Raipur. Admittedly, a notification under
section 4(1) of the Act, 1894 was issued on 19.02.1999 in
the official gazette. Thereafter, a notification under
section 17(1) of the Act, 1894 was published in the local
news papers namely Nav Bharat and Dainik Bhaskar on 7 and
8th May, 1999 respectively. The respondent No. 2, on
25.05.1999 submitted an application for invoking provisions
of section 17(1) of the Act, 1894. The Commissioner, vide
order dated 10.06.1997 granted approval for invoking the
provisions of section 17(1) of the Act, 1894. The Sub
Divisional Officer, on 1.7.1999 directed for publication of
notification under section 4(1) and 17(1) of the Act, 1894.
Accordingly, notification under section 4(1) and 17(1) of
the Act, 1894 was published on 7.8.1999 in the gazette.
Prior to that, declaration under section 6 of the Act, 1894
was published in the gazette on 30.07.1999. Thereafter the
proceedings of the land acquisition was completed and the
award was passed on 08.12.1999 (Annexure P/10). The
Tahsildar, Raipur, was directed by the Sub Divisional
Officer-cum-Land Acquisition Officer on 14.02.2000 to take
over the possession of the land in dispute which was handed
over to the respondent No. 2 on 17.02.2000.

3. According to learned counsel for the petitioners, the
entire land acquisition proceedings were initiated in
violation of the Act, 1894. The entire proceedings have been
initiated behind the back of the petitioners and the
principles of natural justice was not followed. Shri Payasi
further submits that according to the notification issued by
the Government under section 11 of the Act, 1894, the
competent authority to pass the award is the Collector. But
in the case on hand, the award has been passed by the Sub
Divisional Officer on 08.12.1999 (Annexure P/10). Thus, the
same is not sustainable. Thus, the entire land acquisition
proceedings as well as the impugned award may be quashed.

4. Be that as it may, the law on the issue asto whether a
writ petition is maintainable after passing of the land
acquisition award, is well settled. The petitioners slept
over their right for a long period, even after passing of
the award. The award was passed on 08.12.1999 and the
petitioners had filed this petition on 05.10.2000. A
notification under section 4(1) of the Act, 1894 was issued
on 19.02.1999 and no objection was taken by the petitioners.
A notification under section 6 of the Act, 1894 was
published in the official gazette on 30.07.1999. The
petitioners did nothing during the acquisition proceedings
and even after passing the award.

5. It is well settled principle of law that a writ
petition questioning of the award is not maintainable as
after taking over the possession of the land the same vests
absolutely in the Government free from all encumbrances.
Even under section 48 of the Act, 1894, the State Authority
also cannot withdraw from acquisition after possession has
been taken over.

6. In the matter of Municipal Corporation of Greater
Bombay v. Industrial Development Investment Co. Pvt. Ltd. &
Others1, the Supreme Court
held as under:

“29. It is thus well settled law
that when there is inordinate delay
in filing the writ petition and
when all steps taken in the
acquisition proceedings have become
final, the Court should be loath to
quash the notifications. The High
Court has, no doubt discretionary
powers under Article 226 of the
Constitution of India to quash the
notification under Section 4(1) and
declaration under Section 6. But it
should be exercised taking all
relevant factors into pragmatic
consideration. When the award was
passed and possession was taken,
the Court should not have exercised
its power to quash the award which
is a material factor to be taken
into consideration before
exercising the power under Article

226. The fact that no third party
rights were created is hardly a
ground for interference. The
Division Bench of the High Court
was not right in interfering with
the discretion exercised by the
learned Single Judge dismissing the
writ petition on the ground of
laches.”

7. In the matter of State of Rajasthan & Others v.

D.R.Laxmi & Others2, it was held as under:

“9…When the award was passed and
possession was taken, the Court
should not have exercised its power
to quash the award which is a
material factor to be taken into
consideration before exercising the
power under Article 226. The fact
that no third party rights were
created in the case, is hardly a
ground for interference.”

8. In the matter of Municipal Council, Ahmednagar &

another v. Shah Hyder Beig & Others3, it was held as under:

“17. In any event, after the award
is passed no writ petition can be
filed challenging the acquisition
notice or against any proceedings
thereunder. This has been the
consistent view taken by this Court
and in one of the recent cases (C.
Padma v. Dy. Secy.
to the Govt. of
T.N.)..”

9. In State of Karnataka & Another v. Sangappa Dayappa

Biradar & Others4, the Supreme Court held as under:

“12. A right of a landholder to
obtain an order of reference would
arise only when he has not accepted
the award. Once such award is
accepted, no legal right in him
survives for claiming a reference
to the civil court. An agreement
between the parties as regards the
value of the lands acquired by the
State is binding on the parties. So
long as such agreement and
consequently the consent awards are
not set aside in an appropriate
proceeding by a court of law having
jurisdiction in relation thereto,
the same remain binding. It is one
thing to say that agreements are
void or voidable in terms of the
provisions of the Indian Contract
Act having been obtained by fraud,
collusion, etc., or are against
public policy but it is another
thing to say that without
questioning the validity thereof,
the respondents could have
maintained their writ petitions. We
have noticed hereinbefore that even
in the writ petitions, the prayers
made by the respondents were for
quashing the order dated 23-8-1999
passed by the Special Land
Acquisition Officer and for
issuance of a direction upon him to
refer the matter to the civil
court. The High Court while
exercising its jurisdiction under
Article 226 of the Constitution,
thus, could not have substituted
the award passed by the Land
Acquisition Officer by reason of
the impugned judgment. Furthermore,
the question as regards the
validity of the agreements had not
been raised before the High Court.
As indicated hereinbefore, the
Division Bench of the High Court
had also rejected the contention
raised on behalf of the respondents
herein to the effect that the
agreements did not conform to the
requirements of Article 299 of the
Constitution or had not been drawn
up in the prescribed pro forma.”

10. In Swaika Properties Pvt. Ltd. & another v. State of

Rajasthan & Others5, the Supreme Court held that a writ

petition having been filed after taking over the possession

and the award having become final, the same deserves to be

dismissed on the ground of delay and laches.”

11. Recently, the Supreme Court, in Sulochana Chandrakant
Galande v. Pune Municipal Transport & Others6,
it was
observed as under:

“16. Thus, “free from encumbrances”
means vesting of land in the State
without any charge or burden in it.
Thus, the State has absolute title/
ownership over it.

17. In Satendra Prasad Jain v.
State of U.P.,
this Court held that
once land vests in the State free
from all encumbrances, it cannot be
divested. The same view has been
reiterated in Awadh Bihari Yadav v.
State of Bihar, U.P. Jal Nigam v.
Kalra Properties (P) Ltd., Pratap,
Chandragauda Ramgonda Patil v.
State of Maharashtra, Allahabad
Development Authority
v.
Nasiruzzaman, State of Kerala v. M.
Bhaskaran Pillai, M. Ramalinga
Thevar
v. State of T.N., Printers
(Mysore) Ltd. v. M.A. Rasheed,
Bangalore Development Authority
v.
R. Hanumaiah and Govt. of A.P. v.
Syed Akbar.

22. In view of the above, the law
can be summarised that once the
land is acquired, it vests in the
State free from all encumbrances.
It is not the concern of the
landowner how his land is used and
whether the land is being used for
the purpose for which it was
acquired or for any other purpose.
He becomes persona non grata once
the land vests in the State. He has
a right to get compensation only
for the same. The person interested
cannot claim the right of
restoration of land on any ground,
whatsoever.”

12. No exceptional or extraordinary grounds exist or raised

to invoke extraordinary jurisdiction under Article 226 of

the Constitution of India, to take a departure from the well

settled principles of law.

13. The petition is accordingly dismissed. No order asto
costs.

Judge

Manoj Rathi & Others vs State Of Madhya Pradesh & Others on 8 December, 2010

Chattisgarh High Court
Manoj Rathi & Others vs State Of Madhya Pradesh & Others on 8 December, 2010
       

  

  

 
 
            HIGH COURT OF CHATTISGARH AT BILASPUR       

               WRIT PETITION  No 5875 of 2000


    Manoj Rathi & Others
                         ...Petitioners


                       VERSUS

    State   of   Madhya   Pradesh   &   Others
                                               ...Respondents



!  Shri Bhaskar Payasi Advocate for the petitioners


^  Shri P K Bhaduri Panel Lawyer for the State/respondent No 1&3 Shri Ajay Singh Advocate on behalf of Shri B P Sharma  Advoc



 CORAM:  Hon'ble Shri Satish K Agnihotri J

 Dated: 08/12/2010

: Judgement 

 PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA           

                      ORDER (ORAL)

(Passed on 08th day of December, 2010)

1. By this petition, the petitioners seek quashing of the

notification issued under section 4(1), 6(1) and 17(1) and

the award dated 08.12.1999 (Annexure P/10), of the Land

Acquisition Act, 1894 (hereinafter referred to as `the Act,

1894′).

2. The indisputable facts, in nutshell, as projected by
the petitioners are that the petitioners are the owner of
the disputed land situated at village Mandir Hasaud, Tahsil
Arang, District Raipur. Admittedly, a notification under
section 4(1) of the Act, 1894 was issued on 19.02.1999 in
the official gazette. Thereafter, a notification under
section 17(1) of the Act, 1894 was published in the local
news papers namely Nav Bharat and Dainik Bhaskar on 7 and
8th May, 1999 respectively. The respondent No. 2, on
25.05.1999 submitted an application for invoking provisions
of section 17(1) of the Act, 1894. The Commissioner, vide
order dated 10.06.1997 granted approval for invoking the
provisions of section 17(1) of the Act, 1894. The Sub
Divisional Officer, on 1.7.1999 directed for publication of
notification under section 4(1) and 17(1) of the Act, 1894.
Accordingly, notification under section 4(1) and 17(1) of
the Act, 1894 was published on 7.8.1999 in the gazette.
Prior to that, declaration under section 6 of the Act, 1894
was published in the gazette on 30.07.1999. Thereafter the
proceedings of the land acquisition was completed and the
award was passed on 08.12.1999 (Annexure P/10). The
Tahsildar, Raipur, was directed by the Sub Divisional
Officer-cum-Land Acquisition Officer on 14.02.2000 to take
over the possession of the land in dispute which was handed
over to the respondent No. 2 on 17.02.2000.

3. According to learned counsel for the petitioners, the
entire land acquisition proceedings were initiated in
violation of the Act, 1894. The entire proceedings have been
initiated behind the back of the petitioners and the
principles of natural justice was not followed. Shri Payasi
further submits that according to the notification issued by
the Government under section 11 of the Act, 1894, the
competent authority to pass the award is the Collector. But
in the case on hand, the award has been passed by the Sub
Divisional Officer on 08.12.1999 (Annexure P/10). Thus, the
same is not sustainable. Thus, the entire land acquisition
proceedings as well as the impugned award may be quashed.

4. Be that as it may, the law on the issue asto whether a
writ petition is maintainable after passing of the land
acquisition award, is well settled. The petitioners slept
over their right for a long period, even after passing of
the award. The award was passed on 08.12.1999 and the
petitioners had filed this petition on 05.10.2000. A
notification under section 4(1) of the Act, 1894 was issued
on 19.02.1999 and no objection was taken by the petitioners.
A notification under section 6 of the Act, 1894 was
published in the official gazette on 30.07.1999. The
petitioners did nothing during the acquisition proceedings
and even after passing the award.

5. It is well settled principle of law that a writ
petition questioning of the award is not maintainable as
after taking over the possession of the land the same vests
absolutely in the Government free from all encumbrances.
Even under section 48 of the Act, 1894, the State Authority
also cannot withdraw from acquisition after possession has
been taken over.

6. In the matter of Municipal Corporation of Greater
Bombay v. Industrial Development Investment Co. Pvt. Ltd. &
Others1, the Supreme Court
held as under:

“29. It is thus well settled law
that when there is inordinate delay
in filing the writ petition and
when all steps taken in the
acquisition proceedings have become
final, the Court should be loath to
quash the notifications. The High
Court has, no doubt discretionary
powers under Article 226 of the
Constitution of India to quash the
notification under Section 4(1) and
declaration under Section 6. But it
should be exercised taking all
relevant factors into pragmatic
consideration. When the award was
passed and possession was taken,
the Court should not have exercised
its power to quash the award which
is a material factor to be taken
into consideration before
exercising the power under Article

226. The fact that no third party
rights were created is hardly a
ground for interference. The
Division Bench of the High Court
was not right in interfering with
the discretion exercised by the
learned Single Judge dismissing the
writ petition on the ground of
laches.”

7. In the matter of State of Rajasthan & Others v.

D.R.Laxmi & Others2, it was held as under:

“9…When the award was passed and
possession was taken, the Court
should not have exercised its power
to quash the award which is a
material factor to be taken into
consideration before exercising the
power under Article 226. The fact
that no third party rights were
created in the case, is hardly a
ground for interference.”

8. In the matter of Municipal Council, Ahmednagar &

another v. Shah Hyder Beig & Others3, it was held as under:

“17. In any event, after the award
is passed no writ petition can be
filed challenging the acquisition
notice or against any proceedings
thereunder. This has been the
consistent view taken by this Court
and in one of the recent cases (C.
Padma v. Dy. Secy.
to the Govt. of
T.N.)..”

9. In State of Karnataka & Another v. Sangappa Dayappa

Biradar & Others4, the Supreme Court held as under:

“12. A right of a landholder to
obtain an order of reference would
arise only when he has not accepted
the award. Once such award is
accepted, no legal right in him
survives for claiming a reference
to the civil court. An agreement
between the parties as regards the
value of the lands acquired by the
State is binding on the parties. So
long as such agreement and
consequently the consent awards are
not set aside in an appropriate
proceeding by a court of law having
jurisdiction in relation thereto,
the same remain binding. It is one
thing to say that agreements are
void or voidable in terms of the
provisions of the Indian Contract
Act having been obtained by fraud,
collusion, etc., or are against
public policy but it is another
thing to say that without
questioning the validity thereof,
the respondents could have
maintained their writ petitions. We
have noticed hereinbefore that even
in the writ petitions, the prayers
made by the respondents were for
quashing the order dated 23-8-1999
passed by the Special Land
Acquisition Officer and for
issuance of a direction upon him to
refer the matter to the civil
court. The High Court while
exercising its jurisdiction under
Article 226 of the Constitution,
thus, could not have substituted
the award passed by the Land
Acquisition Officer by reason of
the impugned judgment. Furthermore,
the question as regards the
validity of the agreements had not
been raised before the High Court.
As indicated hereinbefore, the
Division Bench of the High Court
had also rejected the contention
raised on behalf of the respondents
herein to the effect that the
agreements did not conform to the
requirements of Article 299 of the
Constitution or had not been drawn
up in the prescribed pro forma.”

10. In Swaika Properties Pvt. Ltd. & another v. State of

Rajasthan & Others5, the Supreme Court held that a writ

petition having been filed after taking over the possession

and the award having become final, the same deserves to be

dismissed on the ground of delay and laches.”

11. Recently, the Supreme Court, in Sulochana Chandrakant
Galande v. Pune Municipal Transport & Others6,
it was
observed as under:

“16. Thus, “free from encumbrances”
means vesting of land in the State
without any charge or burden in it.
Thus, the State has absolute title/
ownership over it.

17. In Satendra Prasad Jain v.
State of U.P.,
this Court held that
once land vests in the State free
from all encumbrances, it cannot be
divested. The same view has been
reiterated in Awadh Bihari Yadav v.
State of Bihar, U.P. Jal Nigam v.
Kalra Properties (P) Ltd., Pratap,
Chandragauda Ramgonda Patil v.
State of Maharashtra, Allahabad
Development Authority
v.
Nasiruzzaman, State of Kerala v. M.
Bhaskaran Pillai, M. Ramalinga
Thevar
v. State of T.N., Printers
(Mysore) Ltd. v. M.A. Rasheed,
Bangalore Development Authority
v.
R. Hanumaiah and Govt. of A.P. v.
Syed Akbar.

22. In view of the above, the law
can be summarised that once the
land is acquired, it vests in the
State free from all encumbrances.
It is not the concern of the
landowner how his land is used and
whether the land is being used for
the purpose for which it was
acquired or for any other purpose.
He becomes persona non grata once
the land vests in the State. He has
a right to get compensation only
for the same. The person interested
cannot claim the right of
restoration of land on any ground,
whatsoever.”

12. No exceptional or extraordinary grounds exist or raised

to invoke extraordinary jurisdiction under Article 226 of

the Constitution of India, to take a departure from the well

settled principles of law.

13. The petition is accordingly dismissed. No order asto
costs.

Judge

Barbrik Project Limited vs 4 M L Haldkar on 5 October, 2010

Chattisgarh High Court
Barbrik Project Limited vs 4 M L Haldkar on 5 October, 2010
       

  

  

 
 
             HIGH COURT OF CHATTISGARH AT BILASPUR      


               Writ Petition C No 1087 of 2010

                           Barbrik    Project    Limited
                                                       ...Petitioners



                            Versus

                      1       State     of    Chhattisgarh

                        2       Chief    Executive   Officer


                        3       Chief  Engineer

                        4       M L      Haldkar
                                               ...Respondents




!     Shri Ankit Pandey  counsel for the petitioner


^     Shri Yashwant Singh Thakur Deputy Advocate General  for the State


 CORAM:         Honble Shri Dhirendra Mishra &  Honble Shri R N Chandrakar JJ

  Dated:    05/10/2010

:  Judgement 


                           O R D E R

(Passed on 5th October, 2010)

The following order of the Court was passed by Dhirendra
Mishra, J.

1. The petitioner has filed the instant petition and prayed

for quashing of the order dated 6th February, 2010 (Annexure-

P/1) whereby the petitioner’s registration as a contractor in

S-5 category in the Chhattisgarh Rural Road Development Agency

(hereinafter referred to as `the CGRRDA’) has been cancelled.

2. Briefly stated, the petitioner’s case is that M/s Bajrang

Lal Agrawal, a partnership firm, was registered as S-5

contractor with the respondent CGRRDA since 2000. With the

passage of time the business of the firm grew. Considering

the same, almost all the partners of the firm decided for

external expansion by incorporating a company limited by

shares in the name and style of M/s Barbrik Project Limited in

the year 2008 and accordingly, the petitioner was incorporated

in the year 2008 and the certificate of incorporation was

issued by the Registrar of Companies on 7th April, 2008 and

the Company commenced the business w.e.f. 2nd May, 2008.

3. The petitioner vide its resolution dated 2nd May, 2008

took over the entire business of M/s Bajrang Lal Agrawal as a

going concern (Annexure-P/6) and an agreement was entered into

between M/s Bajrang Lal Agrawal and the petitioner company

vide Annexure-P/7. By virtue of the agreement, the petitioner

succeeded the business of M/s Bajrang Lal Agrawal along with

its assets and liabilities. M/s Bajrang Lal Agrawal firm was

dissolved w.e.f. 2nd May, 2008 vide deed of dissolution dated

2nd may, 2008 (Annexure-P/9) and the same was communicated to

the Assistant Registrar, Firms and Organizations on 12th July,

2008 (Annexure-P/10).

4. CGRRDA as also other Government departments allowed the

petitioner’s application for registration as contractor in

their department and issued registration certificate. The

petitioner was duly registered as S-5 contractor with CGRRDA

(Annexure-P/15), however, respondent No.4 issued show cause

notice (Annexure-P/16) to M/s Bajrang Lal Agrawal on 7-8-2009

contemplating cancellation of the registration of the

petitioner for merging with the petitioner’s company without

permission from the CGRRDA. The petitioner replied to the

above show cause notice vide Annexure-P/17 dated 18th August,

2009. The petitioner was again served with a notice dated

14th October, 2009 calling upon him to show cause as to why

his registration as S-5 category contractor should not be

cancelled, which was replied vide Annexure-P/19. However,

after issuing another notice dated 11-11-2009, CGRRDA,

respondent No.2, cancelled the registration vide impugned

order of Annexure-P/1.

5. Shri Ankit Pandey, learned counsel appearing on behalf of

the petitioner, submitted that the petitioner’s registration

as S-5 contractor has been erroneously cancelled on the ground

that it did not have experience of its own for claiming

registration with the CGRRDA and the registration is claimed

on the basis of experience of Director or partner of the

petitioner’s company whereas, the petitioner applied for

registration on the basis of its own experience, as the

petitioner vide its resolution dated 2nd May, 2008 has taken

over the business of the firm as a going concern and the

registration certificate was granted to the petitioner by

respondent No.3 by accepting merger of M/s Bajrang Lal Agrawal

with the petitioner with all the contracts and the work in

hand vide Annexure-P/15. From the note sheets of the

respondents, which have been filed by the petitioner along

with his rejoinder as Annexure-P/23, it would be evident that

the respondents after considering that M/s Bajrang Lal Agrawal

has merged in the petitioner company recommended for

registration as S-5 category contractor and the same has been

accepted by the Chief Engineer of the CGRRDA and the

registration certificate of S-5 contractor has been issued.

From the document of Annexure-P/15, it would be evident that

his registration could be down-graded, cancelled or suspended

only as per clauses 2.097, 2.100, 2.101 & 2.102 of the Works

Department Manual, 1983.

6. On the other hand, Shri Yashwant Singh Thakur, learned

Deputy Advocate General for the State would submit that M/s

Bajrang Lal Agrawal was registered as S-5 category contractor

with RES whereas CGRRDA came into existence on 1-2-2003 and

the rules regarding registration of contractor with CGRRDA

came into force w.e.f. 27-1-2006. Even otherwise, M/s Bajrang

Lal Agrawal entered into agreement with the petitioner company

without seeking permission from the authorities of the CGRRDA.

The petitioner has averred in the petition that M/s Bajrang

Lal Agrawal has merged with the petitioner and the same stands

dissolved w.e.f. 2nd May, 2008 (Anneure-P/9). However, the

predecessor firm is still carrying on the construction work

out of total works awarded to M/s Bajrang Lal Agrawal. 166

works were awarded to the said firm, 136 roads have been

completed but the work of 40 roads is still going on. The

firm has further agreed to maintain those roads for a further

period of 5 years. If the firm has received payment for their

works from the answering respondents, it makes the documents

filed by the petitioner suspicious. CGRRDA in the meeting of

its Executive Committee held on 27-1-2006 prescribed the

procedure for registration of the contractors of CGRRDA

(Annexure-P/22). As per the document of Annexure-P/22 for

registration of S-5 category contractor, the contractor should

have work experience in his own name and the experience of the

Director/Partner of the Company/Firm could not be considered

as experience of the company.

7. We have heard learned counsel for the parties.

8. Indisputably, after incorporation of the petitioner

company and after agreement with M/s Bajrang Lal Agrawal, the

petitioner applied for registration with the respondents along

with necessary deposits. His application was duly processed

by the respondents, as would be evident from the document of

Annexure-P/23. The petitioner claimed registration as S-5

category contractor on the ground that M/s Bajrang Lal Agrawal

has merged in the company, showing the work experience of

predecessor company as its own, the same was duly accepted and

the registration certificate of Annexure-P/15 was issued. The

above fact has not been controverted by the respondents.

9. From perusal of the documents of Annexure-P/15, it is

clear that the registration could be down-

graded/cancelled/suspended as per clauses 2.097, 2.100, 2.101

and 2.102 of the Works Department Manual, 1983, (Para-1). It

is not the case of the respondents that the certificate of

registration has been cancelled for breach of any of the above

clauses. Even otherwise, after examining the above

provisions, we find that the same does not provide for

cancellation of the contract on the grounds on which the

registration of the petitioner has been cancelled.

10. On due consideration of the documents annexed with the

petition and further considering that the respondents after

accepting the contention of the petitioner that M/s Bajrang

Lal Agrawal has merged with the petitioner and treating the

experience of predecessor as the experience of the petitioner,

registered the petitioner as contractor of S-5 category, we

are of the opinion that the respondent No.4 was not justified

in canceling the registration certificate by referring to the

order of Annexure-P/22 which was very much in force even at

the time when the certificate of registration was issued to

the petitioner by respondent No.4.

11. In the result, the writ petition is allowed and the

impugned order dated 6-2-2010 (Annexure-P/1) passed by

respondent No.4 is quashed.

J U D G E

Smt Vandna Soni vs State Of Chhattisgarh & Another on 4 October, 2010

Chattisgarh High Court
Smt Vandna Soni vs State Of Chhattisgarh & Another on 4 October, 2010
       

  

  

 
 
        HIGH COURT OF CHATTISGARH AT BILASPUR        

         Writ Petition C No 5789 of 2007 AND  Writ Petition C No 5844 of 2007

                     Smt Neru Soni

                      Smt Vandna Soni
                                ...Petitioners

                       VERSUS


                     State   of   Chhattisgarh    &   Another
                                                    ...Respondents











!  Shri V.G.Tamaskar, Advocate for the petitioner




^   Shri N N Roy  Panel Lawyer for the State respondent No 1,    Shri H.B.Agrawal, Senior Advocate with Ms. Pragya Singh, Adv


 CORAM:   Honble Shri Satish K Agnihotri J


  Dated:04/10/2010

:Judgement 


  PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF          
                        INDIA


                      O R D E R

(Delivered on 04th day of October, 2010)

Heard.

1. Since both the writ petitions i.e. Writ Petition

(C) No. 5789 of 2007 and Writ Petition (C) No. 5844

of 2007 involve common facts and question of law,

thus, both are being disposed of by this common

order.

2. Challenge in these petitions i.e. Writ Petition
(C) No. 5789 of 2007 (for short `the first petition’)
and Writ Petition (C) No. 5844 of 2007 (for short
`the second petition’) is to the order dated
08.06.2007 (Annexure P/4) passed by the Estate
Officer, Municipal Corporation, Bhilai, District
Durg, whereby allotment of shop bearing No. F/16 in
the first petition and No. F/15 in the second
petition, Shitla Commercial Complex, Bhilai, to the
petitioners on 27.03.2006, were cancelled, and the
petitioners were directed to make an application for
refund of the security deposit and other amount.

3. The indisputable facts, in nutshell, as
projected by the petitioners, in both the writ
petitions are that pursuant to the notice for auction
sale, published in “Dainik Bhaskar”, Raipur Edition,
on 08.03.2006, for sale of shops in Shitla Commercial
Complex, Bhilai, the petitioners participated in the
said auction sale and the petitioners, being the
highest bidders, were allotted shop No. F/16 and
F/15, respectively. A security deposit to the tune of
Rs. 41,825/- (Annexure P/2 in both writ petitions)
was deposited and 1/3rd amount of the final bid to
the tune of Rs. 56,500/- and Rs. 57,000/-
respectively were deposited. After completion of the
auction and deposit of installments, all of a sudden,
the petitioners received the impugned order dated
8.6.2007 (Annexure P/4) before execution of the
agreement, to the effect that that the shops allotted
earlier in auction to them had been cancelled.
Thereafter, respondent-Corporation fixed the date for
re-auction of the shop on 23.08.2007. The petitioners
filed a writ petition being W.P.(C) No. 4982/2007 and
4983/2007 respectively before this Court, which were
dismissed by a common order dated 27.08.2007
(Annexure P/6), on the ground of non-joinder of State
of Chhattisgarh, as a necessary party.

4. The petitioners have preferred the instant
petition impleading State of Chhattisgarh as a
necessary party on the ground that no notice was
given to the petitioners before canceling the
auction sale. However, it was stated that re-auction
fixed on 23.08.2007 (Annexure P/5) for the shops in
question could not take place on account of the
interim order granted by this Court on 05.10.2007 (in
both the writ petitions).

5. Shri Tamaskar, learned counsel appearing for the
petitioners would submit that the contract of sale
was complete when the final bid was accepted by the
respondent No. 2. The same could not have been
cancelled without affording an opportunity of hearing
to the petitioners. In the auction notice, there were
no such terms or conditions which requires approval
of the State Government, after acceptance of the
final bid. Even otherwise, the respondent-Corporation
was competent to lease, sale or otherwise convey the
immovable property belonging to the Corporation to
any other person without subsequent approval of the
State Government.

6. In the written submission, though the point was
not pleaded , however, during the course of argument,
learned counsel for the petitioner developed a new
point that the State Government has no competence to
grant approval as the land in question belong to the
Bhilai Steel Plant (for short `the BSP’) and the
same was transferred to respondent-Corporation, on
lease. Thus, the State could not put any restriction
prescribed in the Chhattisgarh Municipal Corporation
Act, 1956 (for short `the Act, 1956′). Clause (i) of
the proviso to sub-section (5) of Section 80 of the
Act, 1956 clearly prescribes is that the property
vesting in the Corporation in trust shall be leased,
sold or otherwise conveyed in a manner that is likely
to prejudicially affect the purpose of the trust
subject to which such property is held. The
requirement of sanction of the Government, more so,
previous sanction is only in case of land which is
under the ownership of the Corporation.

7. On the other hand, Shri Agrawal, learned Senior
counsel appearing with Ms. Pragya Singh, counsel for
the respondent-Corporation would submit that once the
petition praying for the same relief has been
dismissed on any ground, may be non-joinder of the
party, the same issue cannot be re-agitated in a
fresh petition. These petitions are barred by
principle of `Res-Judicata’ also. The State
Government is the final authority to grant sanction
and in the case, since sanction was not granted by
the State Government, the sale in favour of the
petitioners cannot be held as complete. Under the
provisions of section 80(5)(ii) of the Act, 1956, it
is provided that no land shall be sold or otherwise
conveyed without the previous sanction of the
Government and every sale , or other conveyance of
property vesting in the Corporation shall be deemed
to be subject to the conditions and limitations
imposed by this Act or by any other enactment for the
time being in force. Secondly, right of the
petitioners arose from a contractual agreement, thus,
writ petition is not maintainable to enforce such
right which had not accrued till date from the
contractual agreement. Both the respondents deny the
statement of the petitioners that the Corporation was
holding the land on lease granted to them by the BSP.

8. Shri Agrawal places reliance heavily on a
decision of the High Court of Madhya Pradesh in
Municipal Corporation, Satna v. Badri Prasad & Others1
and on a decision of a Division Bench of this Court
in Vijay Ratan Lal Rathi & Another v. State of
Chhattisgarh & Others2.

9. Learned counsel appearing for the
State/respondent No. 1would submit that vide clause
13 of the Terms and Conditions of Allotment of Shops
by Auction (Annexure P/7), all the participants
including the petitioners were made aware that after
completion of the auction, the auction would be
subject to sanction/approval of the State Government.
Thus, the right in favour of the successful bidders
would come into existence only after the State
accords sanction.

10. Reliance of the Shri Agrawal on Surguja
Transport Service v. State Transport Appellate
Tribunal, M.P. Gwalior & Others3
which was referred
with approval in Upadhyay & Co. v. State of U.P. &
Others4,
is misplaced in the facts of the present
cases as the Supreme Court, in a case, where the
petition was withdrawn without permission of the
Court, and the petitioners re-instituted a fresh
petition, held that second petition is not
maintainable on the basis of public policy as the
same would encourage Bench hunting. But there is no
bar on other remedies like a civil suit or a petition
under Article 32 of the Constitution of India. Filing
of a second petition can also not be held as barred
by principle of res-judicata as the same is
applicable, when case/suit is adjudicated on merit.
In the cases on hand, earlier writ petitions were
dismissed for want of non-joinder of party, though
certain observations were made, but the same were
only to find out asto whether or not, the State
Government was a necessary party. Thus, the objection
of the respondent-Corporation on maintainability of
the instant petitions, are rejected.

11. There is no dispute that in the auction notice

dated 08/09.03.2006 (Annexure P/1), there was no

prescription with regard to subsequent sanction/

approval of the State Government. Clause 4 of the

general terms and conditions of the auction notice

provides that the Commissioner of the Corporatoin is

the final authority to accept the bid of the parties

and it does not prescribe for approval of the State

Government for allotment. Clause 4 of the general

terms and conditions of the auction notice dated

08.02.2006, reads as under:

“mPpre cksyhnkrk dh jkf’k dks Lohd`r
;k vLohd`r djus dk vf/kdkj vk;qDr]
uxj fuxe fHkykbZ dk gksxkA”

12. On going through the Terms and Conditions of

Allotment of the Shops by Auction (Annexure P/7), it

is clear that clause 13 provides for approval of the

State Government for allotment of shops. It is

specifically mentioned in clause 13 that the approval

of the State Government will be sought and only after

approval the highest bidder would acquire the right

of patta on the land. The bidder will not have any

right over the shop/building if the allotment is not

approved by the Government and the bidder shall be

entitled to refund of the amount with interest. No

claim thereof shall be entertained. Clause 13 of the

Terms and Conditions of Allotment of Shops by Auction

(Annexure P/7) reads as under:

“fuxe }kjk cksyh lekIr gksus ds
ckn fu;ekuqlkj jkT; `kklu ls
Lohd`fr izkIr dh tk,xhA Lohd`fr
izkIr gksus ds ckn ;g ekuk
tkosxk dh cksyhnkj ls ml laifRr
ds iV~Vs dk vf/kdkj fu;ekuqlkj
izkIr gksxkA ;fn jkT; `kklu ls
Lohd`fr izkIr ugha gksrh rc rd
cksyhnkj dks lacaf/kr Hkwfe
nqdku@Hkou dk dksbZ vf/kdkj
izkIr ugha gksxk ,oa fcuk C;kt
{kfriwfrZ ds ek jkf’k izkIr djus
dk vf/kdkj gksxk rFkk dksbZ nkok
fuxe }kjk ekU; ugha gksxkA ”

13. Sub-section 5 of Section 80 of the Act, 1956 is

the relevant provision in the case on hand. Clause

(i) of the proviso to Section 80(5) does not admit of

any ambiguity. This clearly provides that any

property vesting in the Corporation shall be leased,

sold or otherwise conveyed in a manner that is likely

to prejudicially affect the purpose of the trust

subject to which such property is held. Thus, it is

clear that if a property in trust is vested in the

Corporation, there is no other restriction except the

conveyance of the property by lease or sale other

otherwise should not be prejudicially affecting the

purpose of the trust. Clause (ii) of the proviso to

section 80(5) prescribes that no land of the

Corporation shall be sold or otherwise conveyed

without the previous sanction of the Government and

further, every sale or other conveyance of property

vesting in the Corporation shall be deemed to be

subject to the conditions and limitations imposed by

this Act or any other enactment for the time being in

force.

14. Reliance of Shri Agrawal on a decision of a

Division Bench of this Court in Vijay Ratan Lal Rathi

(supra), is not relevant to the facts of the case as

there was no question of cancellation of allotment of

shops in auction purchase.

15. Section 80 of the Act, 1956 is applicable not
only to the property vested in the Corporation but
also to the property which is under the management
of the Corporation. Assuming without holding that the
land was held by the respondent-Corporation on lease,
but the same was under the management of the
Corporation. Thus, the provisions of section 80 would
be applicable to the facts of the present cases.

16. The main plank of the argument of learned
counsel for the petitioner is that the land was held
by the respondent-Corporation on lease granted by the
BSP, fails on a simple ground that neither a transfer
deed indicating transfer of land or any other
document has been produced, particularly in the teeth
of the strong denial of the fact by the respondents.
The BSP is not present to assist the Court in
establishing the averments with regard to nature of
the land, as stated by the petitioners. Thus, any
issue on the above stated basis cannot be adjudicated
upon for want of sufficient materials. This involves
disputed question of facts and the same cannot be
decided in a writ jurisdiction on the basis of
averments made in the pleadings. The competent court
is civil court, having the jurisdiction.

17. In case of Badri Prasad (supra), there was no
consideration firstly with regard to general terms
and conditions of contract and secondly, whether the
terms and conditions of the auction was a part of the
auction notice. Thus, the same is not applicable to
the facts of the instant cases.

18. On the basis of aforestated reasons and

analysis, I am constraint to hold that clause 13 of

the Terms and Conditions of Allotment of Shops by

Auction (Annexure P/7), was a part of the contract

and thus, the auction sale was not complete as

sanction/approval was not accorded to the

petitioners. This is not the case of the petitioners

that the terms and conditions are inconsistent with

the statutory provisions. Thus, no right has accrued

in favour of the petitioners before the sanction/

approval was accorded to the auction sale. However,

it is not clear from the pleadings of the cases asto

whether all the installments have been paid or only

one installment has been paid.

19. As a result, both the writ petitions are

dismissed. The petitioners are entitled to refund of

the security amount as well as other amount which has

been deposited by them, with interest.

20. There shall be no order asto costs.

JUDGE

Amit

HIGH COURT OF CHHATTISGARH AT BILASPUR

Writ Petition (C) No. 5789 of 2007

PETITIONER : Smt. Neru Soni.

VERSUS
RESPONDENT : State of Chhattisgarh &
Another.


                        A N D

         Writ Petition (C) No. 5844 of 2007

PETITIONER       :     Smt. Vandna Soni.

                       VERSUS
RESPONDENT       :     State   of   Chhattisgarh    &
                       Another.



Post for pronouncement of order on .. day of October,

2010.

J U D G E

Shyam Lal Bhimte vs Madhya Pradesh Audhyogik Vikas on 20 September, 2010

Chattisgarh High Court
Shyam Lal Bhimte vs Madhya Pradesh Audhyogik Vikas on 20 September, 2010
       

  

  

 
 
           HIGH COURT OF CHATTISGARH AT BILASPUR       

                 M C C  444 of 2010

                Shyam Lal Bhimte
                            ...Petitioners

                             Versus

               Madhya Pradesh Audhyogik  Vikas
                     Nigam & Others
                               ...Respondents

!                Shri J K Shastri

^

 CORAM:        Honble Shri Satish K Agnihotri J

 Dated:  20/09/2010

: JUDGEMENT    

ORDER ORAL

APPLICATION FOR RESTORATION OF THE WRIT PETITION NO
3414/1995

1. The applicant has filed the instant application for

restoration of Writ Petition No. 3414/1995, which was

dismissed for want of prosecution on 17.04.2006.

2. The instant application for restoration was filed
on 16.09.2008 which is barred by limitation of 853 days.

3. On perusal of the office report, it is evident that
the matter was listed for default before the Additional
Registrar (Judicial) on 19.09.2008. Thereafter, the
matter was again listed for default before the
Additional Registrar (Judicial) on 14.10.2008,
16.10.2008 and 20.08.2010. Thus, it is evident that the
applicant has taken almost two years to remove the
default.

4. The applicant has also filed I.A. No. 1,
application for condonation of delay in filing the
restoration application. The applicant has also not
offered any cogent reasons for condonation of delay in
filing the restoration application as even after delay
of 853 days, the applicant has taken more than two years
for removing the default. Thus, it appears that the
applicant himself is not interested in pursuing his
petition and after such a belated stage, prays for
restoration of the writ petition, which was dismissed
for want of prosecution.

5. A Division Bench of this Court, in A.Sriniwas Rao &
Others v. Union of India & Others1 , while deciding a
similar issue, observed as under:

“9. Law helps the diligent not
indolent person’ is often quoted
and reiterated principle to
highlight the rationale behind
the law of limitation. There is
no need for us to add cause law
in that regard. Law reports
contain abundant instances.

Although it is said that a person
who approaches Tribunal/Forum
after the limitation prescribed
by the statute has to explain
each day’s delay to the
satisfaction of the Court or
Tribunal, as the case may be,
even practicing liberalism in the
peculiar facts and circumstances
of this case, we do not find any
explanation much satisfactory
explanation to constitute a
`sufficient cause’ to condone the
enormous delay of 4 year 3 months
and 3 days..”

6. This Court, in Chain Singh Pendre v. State of

Chhattisgarh & Others2, relying on decisions of the

Supreme Court, in S.S.Rathore v. State of Madhya

Pradesh, C.Jacob v. Director of Geology & Mining & Anr.,

R.N.Bose v. Union of India, State of M.P. v. Nandlal,

U.P.Jal Nigam & another v. Jashwant Singh & another,

State of Punjab & another v. Balkaran Singh, Tridip

Kumar Dingal & Others v. State of West Bengal & Others,

Yunus (Baboobhai ) A. Hamid Padvekar v. State of

Maharashtra, held that no relief can be given to a

person who without any reasonable explanation approaches

the Court after inordinate delay.

7. The applicant herein has not offered any
satisfactory explanation for such an inordinate delay of
853 days. Further, even after filing of the restoration
application on 16.09.2008, the petitioner has taken
almost two years in removing the default and listing of
the case before this Court.

8. In view of the foregoing and for the reasons stated
hereinabove, the application for condonation of delay is
rejected. Consequently, the application for restoration
of the writ petition also stands dismissed.

JUDGE

Shrichand vs State Of Chhattisgarh on 16 September, 2010

Chattisgarh High Court
Shrichand vs State Of Chhattisgarh on 16 September, 2010
       

  

  

 
 
             HIGH COURT OF CHATTISGARH AT BILASPUR      

            Criminal  Appeal   259 OF 2004

                    Shrichand
                          ...Petitioners

                           Versus

                 State  of Chhattisgarh
                              ...Respondents


!                 Shri V P  Gupta

^                Shri  Arun   Sao

 CORAM:         HONBLE MR T P SHARMA ,HONBLE   MR R L JHANWAR JJ            

  Dated:   16/09/2010

:  JUDGEMENT   

CRIMINAL APPEAL UNDER SECTION 374 2 CR P C

The following judgment of the Court was

passed by T.P. Sharma, J:-

1. Challenge in this appeal is to the judgment of

conviction and order of sentence dated 7/1/2004 passed by

First Additional Sessions Judge, Baloda Bazar C.G. in

Sessions Trial No. 286/2003 whereby and where under after

holding the appellant guilty for the commission of

offence of culpable homicide amounting to murder of his

son Chaitram convicted the appellant under Section 302 of

the Indian Penal Code and sentenced imprisonment for life

and fine of Rs. 1000/- in default of payment of fine

amount additional rigorous imprisonment for 1 year.

2. Conviction is impugned on the ground that without

any iota of evidence sufficient for conviction of the

appellant, Court below has convicted and sentenced the

appellant as aforementioned and thereby committed an

illegality.

3. As per case of the prosecution, on faithful night of

14/6/2003 at about 12.30 (0.30) appellant along with his

son Chaitram and another child were present in his house

at village Kusumi. Present appellant assaulted his son

Chaitram and caused repeated injuries over his body and

caused instantaneously death of Chaitram. Appellant

bolted the room from out side the house where other

children were also present. Appellant went to the Police

Station Palari with blood stained axe, his body and

cloths were stained with blood. Police Officers have

directed one Police Officer to find out the truth who

went to the village thereafter some villagers went to the

house of appellant and saw the dead body of Chaitram

inside the room. They went to Police Station where

appellant was present they called the appellant and

inquired then he made extrajudicial confession that he

has committed the murder of his son Chaitram same was

recorded vide Ex. P-9 thereafter PW3 Madandas lodged

First Information Report vide Ex. P-5. Marg was recorded

vide Ex. P-6. Investigating Officer left for scene of

occurrence and after summoning the witnesses vide Ex. P-

13, inquest over the dead body of deceased Chaitram was

prepared vide Ex. P-14. Blood stained axe and blood

stained towel were seized from the appellant vide Ex. P-

15. Dead body was sent for autopsy to Community Health

Center Palari vide Ex. P-2A. PW2 Dr. F.R. Nirala

conducted autopsy vide Ex. P-2 and found following

injuries:-

(i) One incised wound of 4 + ” x 3 +”
over neck on the ground of repeated
injury. Injury was appearing as
lacerated wound. Tracia and internal
part of neck was found cut.

(ii) Incised wound of 2” x 1” x 1 + `’
over left cheek. Jaw was also found cut.

(iii) Incised wound of 2” x 1” x 1 +”
over chin. Bone was also found cut.

(iv) Incised wound of 2 x 1” x 1 +”
over left ear. Jaw was also found cut.

(v) Incised wound of 2” x 1” x 1 +”
over back of the neck.

(vi) Incised wound of 2” x 1” x 1 +”
over left wrist. Ulna bone was also
found fracture.

(vii) Incised wound of 2” x 1” x 1 +”
over right palm.

(viii) Incised wound of 1 +” x + c.m. x
+ c.m. near left eye.

(ix) One incised wound of 1” x +” x
+” over forehead.

Mode of death was shock and death
was homicidal in nature.

4. Spot map was prepared vide Ex. P-1. Appellant was

sent for medical examination vide Ex. P-3A who was

examined by PW2 Dr. F.R. Nirala vide Ex. P-3 and blood

was found over the body of appellant, blood was taken

out with the help of cotton and was sealed. Axe was also

examined by doctor vide Ex. P-4 same was stained with

blood. Blood stained and plain soil were recovered from

the spot vide Ex. P-7. Blood stained shirt, bed-sheet and

other cloths of deceased and cotton stained with blood

found over the body of appellant were sealed vide Ex. P-

16. Seized articles were sent for chemical examination

Vide Ex. P-18. Presence of blood was confirmed vide Ex. P-

22 on axe, towel and cotton by the Forensic Science

Laboratory Raipur.

5. Statements of the witnesses were recorded under

Section 161 of the Code of Criminal Procedure, 1973 (in

short `the Code’). After completion of the investigation

charge sheet was filed before the Judicial Magistrate

First Class, Baloda Bazar who in turn committed the case

to the Court of Sessions, Raipur from where Learned First

Additional Sessions Judge, Baloda Bazar received the

case on transfer for trial.

6. In order to prove the guilt of the appellant/accused

prosecution examined as many as 10 witnesses. Accused was

examined under Section 313 of the Code where he denied

the circumstances appearing against him, innocency and

false implication is claimed. He has taken specific

defence that in the intervening night of 13-14/6/2007 his

son Chaitram was killed by some person, he went to police

station for lodging report but he was detained by police

and was falsely implicated.

7. After affording an opportunity of hearing to the

parties learned First Additional Sessions Judge, Baloda

Bazar convicted and sentenced the appellant as

aforementioned.

8. Learned counsel for the appellant V.P. Gupta and
learned G.A. for the State/respondent Arun Sao are
heard. Judgment impugned and record of Court below
perused.

9. Learned counsel for the appellant vehemently argued

that conviction of the appellant is substantially based

on the evidence of persons before whom present appellant

made extrajudicial confession vide Ex. P-9 but as per

evidence of PW10 Investigating Officer C.D. Lahre he

was present at the time of recording such extrajudicial

confession Ex. P-9 and same was recorded in the police

station premises therefore, same is hit by under Sections

25 & 26 of the Evidence Act except aforesaid evidence

prosecution has not collected any evidence against the

appellant therefore conviction and sentence of the

appellant is not sustainable under the law.

10. On the other hand, learned Govt. Advocate for the

State/respondent opposed the appeal and submits that in

the present case as per evidence of the prosecution

accused himself had gone to police station for lodging

report. He was having blood stained axe and injured dead

body of his son Chaitram was found in his house.

Witnesses has interrogated him although in Police Station

premises but for away from the Police Officers.

Extrajudicial confession made to police is not admissible

in evidence and is hit by under Sections 25 & 26 of the

Evidence Act but extrajudicial confession made in the

police station premises or any premises of police station

is not hit by under Sections 25 & 26 of the Evidence Act.

11. In the present case appellant was immediately

examined by doctor. His body was stained with blood and

same was taken out with the help of cotton. His towel was

also seized, same was examined by Forensic Science

Laboratory and presence of blood over the body of

appellant and towel which appellant was bearing was

confirmed Ex. P-20. Present appellant has not offered any

explanation to show that how his body was stained with

blood. This alone circumstance is sufficient for

connecting the appellant with crime in question and for

drawing an inference that appellant is a person who

culpable homicide amounting to murder of his son

Chaitram.

12. In order to appreciate the argument advanced on

behalf of the parties, we have examined the evidence

adduced on behalf of the prosecution.

13. In the present case, homicidal death as a result of

multiple fatal injuries found over the body of Chaitram

has not been substantially disputed on behalf of the

appellant on the other hand, otherwise also established

by the evidence of PW2 Dr. F.R. Nirala and autopsy report

Ex. P-2 which reveals that as many as 9 injures found

over the body of deceased including fatal injures over

neck and scalp and death was homicidal in nature.

14. As regard the complicity of appellant in crime in

question, conviction is based on circumstantial evidence.

As per the settled law in order to convict an accused

based on the circumstantial evidence, the Apex Court in

the case of Dhananjoy Chatterjee Vs. State of W.B.1 has

held that :-

“In a case based on circumstantial
evidence, the circumstances from which
the conclusion of guilt is to be drawn
have not only to be fully established
but also that all the circumstances so
established should be of a conclusive
nature and consistent only with the
hypothesis of the guilt of the accused.
Those circumstances should not be
capable of being explained by any other
hypothesis except the guilt of the
accused and the chain of the evidence
must be so complete as not to leave any
reasonable ground for the belief
consistent with the innocence of the
accused. It needs no reminder that
legally established circumstances and
not merely indignation of the court can
form the basis of conviction and the
more serious the crime, the greater
should be the care taken to scrutinize
the evidence lest suspicion takes the
place of proof.”

15. In case of conviction based on circumstantial

evidence, as held by the Apex Court in the matter of C.

Changa Reddy v. State of A.P.2, the prosecution is

required to adduce evidence and such evidence must

satisfying the following tests: –

i. the circumstances from which an inference of guilt
is sought to be drawn, must be cogently and firmly
established;

ii. those circumstances should of a definite tendency
unerringly pointing towards the guilt of the accused;

iii. the circumstances taken cumulatively should form a
chain so complete that there is no escape from the
conclusion that within all human probability the crime
was committed by the accused and none else; and
iv. the circumstantial evidence in order to sustain
conviction must be complete and incapable of explanation
of any other hypothesis than that of the guilt of the
accused and such evidence should not only be consistent
with the guilt of the accused but should be inconsistent
with his innocence.

16. In the present case prosecution has relied the

following circumstances:-

(i) Dead body of deceased Chaitram was found
incised the room of appellant in injured
condition.

(ii) At the time of incident at night present
appellant was present in the house at the
time of commission of such offence.

(iii) Present appellant has not offered any
explanation that how Chaitram died and who
has caused injury to Chaitram.

(iv) Present appellant himself has gone to
police station along with blood stained
axe for lodging report.

(v) Present appellant made extrajudicial
confession to the witnesses.

(vi) Body of present appellant was stained
with blood and same was examined by
doctor.

(vii) Blood stained found over the body of
appellant was taken out with the help of
cotton by the doctor and same was sealed
and sent for chemical examination.

(viii) Blood stained towel which appellant
was bearing was seized from the appellant
by the Investigating Officer.

(ix) Blood stained towel and axe were
examined by Forensic Science Laboratory
and presence of blood over axe and towel
seized from the appellant and blood
stained cotton taken from the body of
appellant were confirmed vide Ex. P-22.

17. As per evidence of PW2 Dr. F.R. Nirala he has

examined appellant Shrichand on 14/6/03 vide Ex. P-3 no

injury was found over his body but his body was stained

with blood specially blood was found over both side of

the chest, finger of left hand, both the legs, both the

toe which was taken out for the help of cotton and was

sealed and handed over to the Constable. He has also

examined axe which was stained with blood Ex. P-4. In his

cross examination he has explained that if the person

caught hold the person who would be in bleeding condition

even blood stained found on the body of the appellant

would not be possible but stained may be occurred if the

person will be present in close distance with the person

whom other persons has caused injury.

18. PW3 Madandas, PW7 Kejuram, PW8 Sukhelal Ratre have

deposed in their evidence that they came to know that son

of appellant Chaitram has been murdered then they went to

the house of appellant thereafter they went to the police

station where appellant was present with axe. They called

the appellant and asked in absence of police then he told

and made extrajudicial confession that he has committed

murder of his son Chaitram which they recorded Ex. P-9.

19. Defence has cross examined these witnesses at length

in which they have specifically deposed that after

calling the appellant in separate place in police station

premises they have interrogated the appellant and

appellant has made extrajudicial confession before them

although PW10 Investigating Officer C.D. Lahre has

deposed in Para-9 of his evidence that at the time of

recording such Panchnama Ex. P-9 he was present.

Definitely, in the present case Investigating Officer

himself has directed the villagers to inquire from

appellant and appellant himself present in the police

station with blood stained axe, appellant has not made

any extrajudicial confession to police but statement of

PW10 Investigating Officer C.D. Lahre reveal that he was

recorded extrajudicial confession made by appellant in

his presence therefore only extrajudicial confession made

by appellant to witnesses would not be safe for drawing

definite conclusion that too relating to complicity of

appellant in crime in question. Evidence of aforesaid

witnesses including presence of PW10 Investigating

Officer C.D. Lahre and defence taken by the appellant

reveal that present appellant himself had gone to police

station he was present at police station and was holding

blood stained axe. As per evidence of doctor blood

stained was found on different part of the body of

appellant which was taken out with the help of cotton.

Chemical examination report reveal that blood was

confirmed on the cotton, axe and cloths which the

appellant was bearing although blood group has not been

detected by the Chemical Examiner.

20. In the present case present appellant has not

offered any explanation that how blood was found over his

body and in his cloths, who was present in the house at

night and who had caused injuries to his son Chaitram as

suggestion given by the defence to PW2 Dr. F.R. Nirala in

Para-9 of his evidence, he has also not offered any

explanation that who has caused injures to his son

Chaitram or who was standing near his son Chaitram at the

time of causing such injury. Appellant was present

incised the house along with his son Chaitram at the time

of commission of such incident who was under obligation

to explain the circumstances in terms of under Section

106 of the Evidence Act but present appellant has not

offered any explanation while along with the question of

offence committed in secrecy and requirement of

explanation.

21. As held by the Apex Court in the case of Trimukh

Maroti Kirkan v. State of Maharashtra3, in case murder

committed in secrecy inside a house, the initial burden

to establish the case would undoubtedly be upon the

prosecution, but the nature and amount of evidence to be

led by it to establish the charge cannot be of the same

degree as is required in other cases of circumstantial

evidence. Para 15 of the said judgment reads as under:-

“15. Where an offence like murder is
committed in secrecy inside a house, the
initial burden to establish the case would
undoubtedly be upon the prosecution, but the
nature and amount of evidence to be led by
it to establish the charge cannot be of the
same degree as is required in other cases of
circumstantial evidence. The burden would of
a comparatively lighter character. In view
of Section 106 of the Evidence Act there
will be a corresponding burden on the
inmates of the house to give a cogent
explanation as to how the crime was
committed. The inmates of the house cannot
get away by simply keeping quiet and
offering no explanation on the supposed
premise that the burden to establish its
case lies entirely upon the prosecution and
there is no duty at all on an accused to
offer any explanation.”

22. In absence of any explanation the only inference

would be possible that present appellant is a person who

has committed the offence and is author of the crime and

except appellant no other person has committed the

offence.

23. If aforesaid circumstances are considered together
then only inference would be possible that present
appellant alone has committed the culpable homicide
amounting to murder of his son Chaitram and other than
the appellant nobody has committed the aforesaid offence.

24. After appreciating, the evidence available on record

learned First Additional Sessions Judge, Baloda Bazar

has rightly convicted and sentenced the appellant as

aforementioned. The conviction and sentence of the

appellant is based on legal, clinching and credible

evidence and is sustainable under the law.

25. On close scrutiny of the evidence, we do not find

any illegality or infirmity in the conviction and

sentence of the appellant. The appeal is devoid of

merits. Consequently, criminal appeal is liable to be

dismissed and is hereby dismissed.

JUDGE