PETITIONER: GUJARAT HOUSING BOARD ENGINEERS ASSN. Vs. RESPONDENT: STATE OF GUJARAT DATE OF JUDGMENT05/11/1993 BENCH: KULDIP SINGH (J) BENCH: KULDIP SINGH (J) BHARUCHA S.P. (J) VERMA, JAGDISH SARAN (J) SINGH N.P. (J) CITATION: 1994 SCC (2) 24 JT 1993 (6) 469 1993 SCALE (4)383 ACT: HEADNOTE: JUDGMENT:
The Judgment of the Court was delivered by
BHARUCHA, J.- Special leave granted.
2. Heard.
3.This appeal requires a true and correct interpretation to
be placed upon Regulation 3 of the Gujarat Housing Board
Services Classifications of and Recruitment Regulations, 198
1. The appeal arises thus: The first appellant is an
association of the Engineers of the Gujarat Housing Board
(the second respondent). The second and third appellants
are employees of the Housing Board. They filed a writ
petition in the Gujarat High Court challenging the direction
given to the Housing Board by the State of Gujarat (the
first respondent) to appoint to the post of Assistant
Housing Commissioner (Technical) an officer on deputation
from the Building and Communication Department of the State
Government. The writ petition was dismissed. The High
Court relied upon the fact that the decision to appoint to
the said post an officer of the rank of Superintending
Engineer from the Building and Communication Department of
the State Government had been taken by the State Government
for reasons stated in its affidavit in reply and the said
decision could not be said to be unjust or arbitrary or
based on irrelevant or extraneous considerations.
4.The Gujarat Housing Board Services Classifications of and
Recruitment Regulations, 1981 are made under the provisions
of Section 74(c) of the Gujarat Housing Board Act, 1961 (now
called “the said Act”) with the previous sanction of the
State Government. Regulation 3 in Part V thereof prescribes
the qualifications, age, experience and procedure relating
to recruitment to the post of Assistant Housing Commissioner
(Technical), now called Superintendent Engineer. The
relevant portion thereof reads thus:
“The post may be filled in either:
(])(a) by promotion of employees working as
Executive
Engineer in Board’s Higher Services on the
basis of seniority cum merits,
OR
(b) by calling Executive Engineer on
deputation from State Building and
Communication Department.
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OR
(c) by direct selection from amongst the
candidates called for interview;
(2) To be eligible for promotion, Executive
Engineers (i) should have rendered at least 4
years continuous service as Executive
Engineer;
On promotion, the officer will be on trial for one year on
expiry of which he may be finally promoted or his trial may
be extended or he may be reverted to the post from which he
was promoted as the case may be looking to his performance
during the trial period. On the expiry of the extended
trial period, his case will be again reviewed and dealt in
same manner.
(3) If a suitable candidate is not available for appointment
by promotion from the Executive Engineers of the Board, a
panel of names of Executive Engineers having at least 4
years standing experience from the State B & C Department
may be called for, with a proviso that no departmental
inquiry should be pending against them. The of the names
will be selected by the Board and the selected candidate
will be appointed by the Board.
(4) To be eligible for appointment by direct selection a
candidate
(i) should be not more than 45 years of age;
(ii) should possess a Bachelor’s Degree in
Engineering of a recognised University or an
equivalent qualification recognised by Board,
and
(iii) should have at least 10 years. practical
experience of planning and building
construction work in State or Central
Government or a local authority or a
Corporation owned or controlled by such
Government or in renowned private firms of
Engineers and Contractors in a responsible
post.
Officers in Board’s Higher Service who are
eligible for direct selection as above, can
also apply along with others.
5. The contention on behalf of the appellants is that no
appointment on deputation can be made to the said post of an
officer serving in the State Government’s Building and
Communication Department until and unless it has been found
that no suitable eligible candidate is available for
appointment to the said post by promotion from among the
eligible Executive Engineers of the Housing Board. On the
other hand, it is contended on behalf of the State
Government that Regulation 3 provides three alternative
modes of appointment to the said post in clause (1) and
clause (3) provides yet another, fourth mode of appointment.
The appointment in question was directed to be made under
the provisions of sub-clause (b) of clause (1) and not under
clause (3), so that the State Government and the Housing
Board were not in any manner constrained in making the
appointment and it was not required that the appointment
should
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be so made only if no suitable eligible candidate was
available for appointment by promotion from among the
Executive Engineers of the Housing Board.
6.Clause (1) of Regulation 3 provides that the post of
Assistant Housing Commissioner (Technical) may be filled in
by promotion of employees working as Executive Engineers in
the Housing Board on the basis of seniority cum merit; or by
calling Executive Engineers on deputation from the Building
and Communication Department of the State Government; or by
direct selection from among candidates called for interview.
Clause (2) sets out who among the Executive Engineers of the
Housing Board are eligible for such promotion. Clause (3)
states that if a suitable eligible candidate is not
available for appointment by promotion from among the
Executive Engineers of the Housing Board, a panel of names
of Executive Engineers having four years standing experience
in the State Government’s Building and Communication
Department may be called for and one name out of the panel
may be selected and appointed on deputation by the Housing
Board. Clause (4) sets out the eligibility requirements of
candidates for appointment by direct selection.
7.It is, therefore, clear that clause (2) of Regulation 3
has application to sub-clause (a) of clause (1); that is to
say, clause (2) sets out the eligibility criteria of
employees working as Executive Engineers in the Housing
Board for appointment to the said post on the basis of
seniority-cum-merit under sub-clause (a) of clause (1).
Clause (3) sets out how and when an Executive Engineer from
the State Government’s Building and Communication Department
can be appointed on deputation to the said post under the
provisions of sub-clause (b) of clause (1). Clause (4) sets
out the eligibility requirements for candidates to be
appointed by direct selection under the provisions of sub-
clause (c) of clause (1).
8. We have no doubt, therefore, that clause (3) does not
set out an additional, fourth mode of filling in the said
post but is only a provision which sets out how and when an
Executive Engineer from the State Government’s Building and
Communication Department can be appointed to the said post
on deputation. It provides that an appointment can be made
of an Executive Engineer from the State Government’s
Building and Communication Department to the said post on
deputation only if a suitable eligible candidate is not
available for appointment by promotion from among the
Executive Engineers of the Housing Board.
9.Regulation 3 can be read in no other manner. To construe
it otherwise would mean that it provides no guidelines as to
when the said post is to be filled up from among the
Executive Engineers of the Housing Board, when by deputation
from among the Executive Engineers of the Building and
Communication Department of the State Government and when by
direct selection. The interpretation that the court must
place upon Regulation 3 must be such as avoids arbitrariness
and the conferment of uncanalised power. Regulation 3 must,
therefore, be read as providing that the said post
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must be filled by promotion of eligible Executive Engineers
of the Housing Board on the basis of seniority-cum-merit.
It is only if no suitable candidate is available for
promotion to the said post from among the eligible Executive
Engineers of the Housing Board that the appointment may be
made on deputation from among the Executive Engineers of the
State Government’s Building and Communication Department.
Failing this, the appointment can be made by direct
selection from among candidates called for interview.
10. It is an admitted position that the suitability of
eligible Executive Engineers of the Housing Board for
appointment to the said post by promotion was not considered
before resort was directed to be had to the provisions of
sub-clause (b) of clause (1) for filling the said post by
deputation of an officer of the State Government’s Building
and Communication Department. In our view, therefore, the
State Government was patently in error in directing the
Housing Board to fill the said post by deputing an officer
in the State Government’s Building and Communication
Department.
11. Reference was made on behalf of the State Government to
the provisions of Section 82 of the said Act and it was
submitted that the State Government was thereby empowered to
give to the Housing Board such directions as were in its
opinion necessary or expedient for carrying out tile
purposes of the said Act and the Housing Board was obliged
to comply with such directions. The short answer to the
submission is that it is not open to the State Government to
give directions to the Housing Board under Section 82 which
are contrary to the provisions of Regulations made under the
provisions of the said Act with its previous sanction.
12. The appeal is allowed. The judgment and order under
appeal are set aside. The direction given to the Gujarat
Housing Board by the Government of Gujarat to fill the post
of Assistant Housing Commissioner (Technical) (now called
Superintendent Engineer) by appointment on deputation a
person in its service in the Building and Communication
Department is set aside. For the purposes of filling up the
said post, the Gujarat Housing Board shall proceed in the
manner indicated above.
13. There shall be no order as to costs.
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ARUNDHATI MISHRA V. SRI RAM CHARITA PANDEY
ORDER
1. Leave granted.
2. This appeal arises against the judgment of the
Allahabad High Court in Second Appeal No. 89 of 1990 dated
December 21, 1992. The facts in a nutshell are that the
appellant-plaintiff basing on title laid the suit for
possession and mesne profits against the respondent. The
respondent was inducted into possession of M.I.G. flat
allotted to her by the Lucknow Improvement Trust later
renamed as Lucknow Development Authority. The rent was Rs
30 per month. It was covenanted that the respondent should
pay every month a sum of Rs 24.50 to the L.I.T./L.D.A. and
the balance to the appellant. On March 15, 1971, the
appellant got issued a notice under Section 106 of the T.P.
Act determining the tenancy for default committed in payment
of the rent. Thereon, the respondent replied that the
appellant was only his benamidar and he is the real owner of
the property. The appellant paid the installments and got
the sale deed executed in 1977 by L.I.T. or L.D.A. Suit
notice was issued in 1978 on the ground that the denial of
the appellant’s title constitutes forfeiture of the tenancy
which the respondent had with the appellant. The respondent
reiterated in his written statement that he is the real
owner and remained in possession as owner of the suit house
and the appellant is only benamidar. The respondent also
later filed an application under Order 6 Rule 17, CPC to add
para 21-A claiming alternatively compensation for the
improvements made by him. Framing appropriate issues and on
addiction of evidence, the trial court found that the
appellant has title to the property, by denial of the title,
the respondent forfeited his tenancy and decreed the suit.
Pending first appeal, the respondent filed another
application on March 30, 1989 for amendment of the written
statement setting up the plea of “adverse possession”. The
appellate court rejected the application, considered the
case on merits and confirmed the decree of the trial court.
In the second appeal the learned Single Judge considered and
allowed the application for amendment, set aside the
findings of the courts below and remitted the case to the
trial court for fresh trial. Thus this appeal by special
leave.
3. It is settled law as laid down by this Court in Firm
Sriniwas Ram Kumar v. Mahabir Prasad that it is open to the
parties to raise even mutually inconsistent pleas and if the
relief could be founded on the alternative plea it could be
granted. If the facts are admitted in the written
statement, the relief could be granted to the plaintiff on
the basis of the evidence though inconsistent pleas were
raised. Amendment to written statement cannot be considered
on the same principle as an amendment to the plaint. The
pleas in the written statement may be alternative or on
additional ground or to substitute the original plea. It is
equally settled law that amendment of the pleadings could be
made at any stage of the proceedings. Instances are not
wanting that pleadings are permitted to be amended even when
second appeal is pending. Equally it was refused. It is
not necessary to burden the judgment by copious references
thereof. But
1 AIR 1951 SC 177: 1951 SCR 277
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each case depends upon its own facts. The essential
requisites are that the delay in making the application; the
reason therefore should be given and considered; and there
should be no prejudice caused to the other side. Bar of
limitation which is available to the parties cannot be
permitted to be defeated. It is also settled law that if
the relief is found on the same cause of action, though
different sets of facts are sought to be brought on record
by appropriate pleadings, it cannot be refused. In those
circumstances, permission to amend the pleadings could be
granted.
4. The question in this case is whether the plea of
adverse possession sought to be set up by the respondent
could be permitted to be raised. The pleas based on title
and adverse possession are mutually inconsistent and tile
latter does not begin to operate until the former is
renounced. It is his own case that he came into possession
of the suit house in his own right and remained in
possession as an owner. The appellant is only benamidar.
Therefore, his plea is based on his own title. He never
denounced his title nor admitted the title of the appellant.
He never renounced his character as an owner asserting
adverse possession openly to the knowledge of the appellant
and the appellant’s acquiescence to it. Thereafter, he
remained in open and peaceful possession and enjoyment to
the knowledge of the appellant without acknowledging/or
acquiescing the right, title and interest of the appellant.
The plea of adverse possession, though available to the
respondent, was never raised by him. Only on receipt of the
first notice he denied title of the appellant and made it
known to him for the first time through the reply notice got
issued by him. Even then the plea of adverse possession was
not raised in the written statement. No explanation for the
belated plea was given. Even assuming that the reply dated
March 15, 197 1 constitutes assertion of adverse possession,
the Imitation would start running against the appellant only
from March 15, 197 1 and not earlier. Tile suit was filed
in 1978 within 12 years. Under these circumstances, tile
High Court is not justified in permitting the respondent to
raise the plea of adverse possession. It is made clear that
we are not expressing any opinion on merits. The judgment
of the High Court is set aside and the matter is remitted to
the High Court for disposal on merits according to law.
Tile appeal is allowed but without costs.
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