{"id":46879,"date":"1993-11-05T00:00:00","date_gmt":"1993-11-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/gujarat-housing-board-engineers-vs-state-of-gujarat-on-5-november-1993"},"modified":"2018-08-10T18:41:49","modified_gmt":"2018-08-10T13:11:49","slug":"gujarat-housing-board-engineers-vs-state-of-gujarat-on-5-november-1993","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/gujarat-housing-board-engineers-vs-state-of-gujarat-on-5-november-1993","title":{"rendered":"Gujarat Housing Board Engineers … vs State Of Gujarat on 5 November, 1993"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Gujarat Housing Board Engineers … vs State Of Gujarat on 5 November, 1993<\/div>\n
Equivalent citations: 1994 SCC (2)\t24, \t JT 1993 (6)\t469<\/div>\n
Author: K Singh<\/div>\n
Bench: Kuldip Singh (J)<\/div>\n
           PETITIONER:\nGUJARAT HOUSING BOARD ENGINEERS ASSN.\n\n\tVs.\n\nRESPONDENT:\nSTATE OF GUJARAT\n\nDATE OF JUDGMENT05\/11\/1993\n\nBENCH:\nKULDIP SINGH (J)\nBENCH:\nKULDIP SINGH (J)\nBHARUCHA S.P. (J)\nVERMA, JAGDISH SARAN (J)\nSINGH N.P. (J)\n\nCITATION:\n 1994 SCC  (2)\t24\t  JT 1993 (6)\t469\n 1993 SCALE  (4)383\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
The Judgment of the Court was delivered by
\nBHARUCHA, J.- Special leave granted.\n<\/p>\n
2. Heard.\n<\/p>\n
3.This appeal requires a true and correct interpretation  to
\nbe  placed  upon Regulation 3 of the Gujarat  Housing  Board
\nServices Classifications of and Recruitment Regulations, 198\n<\/p>\n
1.  The\t appeal\t arises\t thus: The  first  appellant  is  an
\nassociation  of the Engineers of the Gujarat  Housing  Board
\n(the  second respondent).  The second and  third  appellants
\nare  employees\tof  the Housing Board.\tThey  filed  a\twrit
\npetition in the Gujarat High Court challenging the direction
\ngiven  to  the Housing Board by the State  of  Gujarat\t(the
\nfirst  respondent)  to\tappoint to  the\t post  of  Assistant
\nHousing\t Commissioner (Technical) an officer  on  deputation
\nfrom the Building and Communication Department of the  State
\nGovernment.   The  writ petition was  dismissed.   The\tHigh
\nCourt  relied upon the fact that the decision to appoint  to
\nthe  said  post\t an officer of the  rank  of  Superintending
\nEngineer  from the Building and Communication Department  of
\nthe State Government had been taken by the State  Government
\nfor  reasons stated in its affidavit in reply and  the\tsaid
\ndecision  could\t not be said to be unjust  or  arbitrary  or
\nbased on irrelevant or extraneous considerations.\n<\/p>\n
4.The Gujarat Housing Board Services Classifications of\t and
\nRecruitment Regulations, 1981 are made under the  provisions
\nof Section 74(c) of the Gujarat Housing Board Act, 1961 (now
\ncalled\t“the  said Act”) with the previous sanction  of\t the
\nState Government.  Regulation 3 in Part V thereof prescribes
\nthe  qualifications, age, experience and procedure  relating
\nto recruitment to the post of Assistant Housing Commissioner
\n(Technical),   now  called  Superintendent  Engineer.\t The
\nrelevant portion thereof reads thus:\n<\/p>\n
\t      “The post may be filled in either:
\n\t      (])(a)  by promotion of employees\t working  as
\n\t      Executive
\n\t      Engineer\tin  Board’s Higher Services  on\t the
\n\t      basis of seniority cum merits,
\n\t       OR\n<\/p><\/blockquote>\n
\t       (b)   by\t  calling  Executive   Engineer\t  on
\n\t      deputation    from    State    Building\t and
\n\t      Communication Department.\n<\/p><\/blockquote>\n
\t      27<\/span><\/p>\n
\t      OR\n<\/p><\/blockquote>\n
\t      (c)   by\tdirect\tselection from\tamongst\t the
\n\t      candidates called for interview;
\n\t      (2)   To be eligible for promotion,  Executive
\n\t      Engineers (i) should have rendered at least  4
\n\t      years   continuous   service   as\t   Executive
\n\t      Engineer;\n<\/p><\/blockquote>\n
On  promotion, the officer will be on trial for one year  on
\nexpiry of which he may be finally promoted or his trial\t may
\nbe extended or he may be reverted to the post from which  he
\nwas  promoted as the case may be looking to his\t performance
\nduring\tthe  trial period.  On the expiry  of  the  extended
\ntrial  period, his case will be again reviewed and dealt  in
\nsame manner.\n<\/p>\n
(3) If a suitable candidate is not available for appointment
\nby   promotion from the Executive Engineers of the Board,  a
\npanel  of  names of Executive Engineers having\tat  least  4
\nyears  standing experience from the State B &  C  Department
\nmay  be\t called\t for, with a proviso  that  no\tdepartmental
\ninquiry\t should be pending against them.  The of  the  names
\nwill  be  selected by the Board and the\t selected  candidate
\nwill be appointed by the Board.\n<\/p>\n
(4)  To\t be eligible for appointment by direct\tselection  a
\ncandidate\n<\/p>\n
\t      (i)   should be not more than 45 years of age;\n<\/p>\n
\t      (ii)  should  possess a Bachelor’s  Degree  in
\n\t      Engineering  of a recognised University or  an
\n\t      equivalent qualification recognised by  Board,
\n\t      and\n<\/p>\n
\t      (iii) should have at least 10 years. practical
\n\t      experience    of\t planning    and    building
\n\t      construction   work   in\tState\tor   Central
\n\t      Government   or\ta  local  authority   or   a
\n\t      Corporation   owned  or  controlled  by\tsuch
\n\t      Government  or  in renowned private  firms  of
\n\t      Engineers\t and  Contractors in  a\t responsible
\n\t      post.\n<\/p>\n
\t       Officers\t in Board’s Higher Service  who\t are
\n\t      eligible\tfor direct selection as\t above,\t can
\n\t      also apply along with others.\n<\/p>\n
5.  The\t contention on behalf of the appellants is  that  no
\nappointment on deputation can be made to the said post of an
\nofficer\t serving  in  the State\t Government’s  Building\t and
\nCommunication Department until and unless it has been  found
\nthat  no  suitable  eligible  candidate\t is  available\t for
\nappointment  to\t the said post by promotion from  among\t the
\neligible  Executive Engineers of the Housing Board.  On\t the
\nother  hand,  it  is  contended\t on  behalf  of\t the   State
\nGovernment  that  Regulation 3\tprovides  three\t alternative
\nmodes  of  appointment to the said post in  clause  (1)\t and
\nclause (3) provides yet another, fourth mode of appointment.
\nThe  appointment in question was directed to be\t made  under
\nthe provisions of sub-clause (b) of clause (1) and not under
\nclause\t(3), so that the State\tGovernment and\tthe  Housing
\nBoard  were  not  in any manner constrained  in\t making\t the
\nappointment  and  it was not required that  the\t appointment
\nshould
\n28<\/span>
\nbe  so\tmade  only if no  suitable  eligible  candidate\t was
\navailable  for\tappointment  by\t promotion  from  among\t the
\nExecutive Engineers of the Housing Board.\n<\/p>\n
6.Clause  (1)  of  Regulation 3 provides that  the  post  of
\nAssistant Housing Commissioner (Technical) may be filled  in
\nby promotion of employees working as Executive Engineers  in
\nthe Housing Board on the basis of seniority cum merit; or by
\ncalling Executive Engineers on deputation from the  Building
\nand Communication Department of the State Government; or  by
\ndirect selection from among candidates called for interview.
\nClause (2) sets out who among the Executive Engineers of the
\nHousing\t Board are eligible for such promotion.\t Clause\t (3)
\nstates\tthat  if  a  suitable  eligible\t candidate  is\t not
\navailable  for\tappointment  by\t promotion  from  among\t the
\nExecutive  Engineers of the Housing Board, a panel of  names
\nof Executive Engineers having four years standing experience
\nin   the  State\t Government’s  Building\t and   Communication
\nDepartment  may be called for and one name out of the  panel
\nmay  be selected and appointed on deputation by the  Housing
\nBoard.\tClause (4) sets out the eligibility requirements  of
\ncandidates for appointment by direct selection.\n<\/p>\n
7.It  is, therefore, clear that clause (2) of  Regulation  3
\nhas application to sub-clause (a) of clause (1); that is  to
\nsay,  clause  (2)  sets\t out  the  eligibility\tcriteria  of
\nemployees  working  as Executive Engineers  in\tthe  Housing
\nBoard  for  appointment\t to the said post on  the  basis  of
\nseniority-cum-merit  under  sub-clause (a)  of\tclause\t(1).
\nClause (3) sets out how and when an Executive Engineer\tfrom
\nthe State Government’s Building and Communication Department
\ncan  be appointed on deputation to the said post  under\t the
\nprovisions of sub-clause (b) of clause (1).  Clause (4) sets
\nout  the  eligibility  requirements  for  candidates  to  be
\nappointed  by direct selection under the provisions of\tsub-
\nclause (c) of clause (1).\n<\/p>\n
8.   We\t have no doubt, therefore, that clause (3) does\t not
\nset  out an additional, fourth mode of filling in  the\tsaid
\npost but is only a provision which sets out how and when  an
\nExecutive Engineer from the State Government’s Building\t and
\nCommunication  Department can be appointed to the said\tpost
\non deputation.\tIt provides that an appointment can be\tmade
\nof  an\tExecutive  Engineer  from  the\tState\tGovernment’s
\nBuilding  and Communication Department to the said  post  on
\ndeputation  only  if a suitable eligible  candidate  is\t not
\navailable  for\tappointment  by\t promotion  from  among\t the
\nExecutive Engineers of the Housing Board.\n<\/p>\n
9.Regulation 3 can be read in no other manner.\tTo  construe
\nit otherwise would mean that it provides no guidelines as to
\nwhen  the  said\t post  is to be filled\tup  from  among\t the
\nExecutive Engineers of the Housing Board, when by deputation
\nfrom  among  the  Executive Engineers of  the  Building\t and
\nCommunication Department of the State Government and when by
\ndirect\tselection.  The interpretation that the\t court\tmust
\nplace upon Regulation 3 must be such as avoids arbitrariness
\nand the conferment of uncanalised power.  Regulation 3 must,
\ntherefore, be read as providing that the said post
\n29<\/span>
\nmust be filled by promotion of eligible Executive  Engineers
\nof  the Housing Board on the basis  of\tseniority-cum-merit.
\nIt  is\tonly  if  no suitable  candidate  is  available\t for
\npromotion to the said post from among the eligible Executive
\nEngineers  of the Housing Board that the appointment may  be
\nmade on deputation from among the Executive Engineers of the
\nState  Government’s Building and  Communication\t Department.
\nFailing\t this,\tthe  appointment  can  be  made\t by   direct
\nselection from among candidates called for interview.\n<\/p>\n
10.  It\t is  an admitted position that\tthe  suitability  of
\neligible  Executive  Engineers\tof  the\t Housing  Board\t for
\nappointment to the said post by promotion was not considered
\nbefore\tresort was directed to be had to the  provisions  of
\nsub-clause  (b) of clause (1) for filling the said  post  by
\ndeputation of an officer of the State Government’s  Building
\nand  Communication Department.\tIn our view, therefore,\t the
\nState  Government  was patently in error  in  directing\t the
\nHousing\t Board to fill the said post by deputing an  officer
\nin   the  State\t Government’s  Building\t and   Communication
\nDepartment.\n<\/p>\n
11.  Reference was made on behalf of the State Government to
\nthe  provisions\t of Section 82 of the said Act\tand  it\t was
\nsubmitted that the State Government was thereby empowered to
\ngive  to  the Housing Board such directions as were  in\t its
\nopinion\t necessary  or\texpedient  for\tcarrying  out\ttile
\npurposes  of the said Act and the Housing Board was  obliged
\nto  comply  with such directions.  The short answer  to\t the
\nsubmission is that it is not open to the State Government to
\ngive directions to the Housing Board under Section 82  which
\nare contrary to the provisions of Regulations made under the
\nprovisions of the said Act with its previous sanction.\n<\/p>\n
12.  The  appeal is allowed.  The judgment and\torder  under
\nappeal\tare set aside.\tThe direction given to\tthe  Gujarat
\nHousing Board by the Government of Gujarat to fill the\tpost
\nof  Assistant Housing Commissioner (Technical)\t(now  called
\nSuperintendent\tEngineer)  by appointment  on  deputation  a
\nperson\tin  its service in the\tBuilding  and  Communication
\nDepartment is set aside.  For the purposes of filling up the
\nsaid  post, the Gujarat Housing Board shall proceed  in\t the
\nmanner indicated above.\n<\/p>\n
13.  There shall be no order as to costs.\n<\/p>\n
31<\/span><\/p>\n
ARUNDHATI MISHRA V. SRI RAM CHARITA PANDEY
\nORDER\n<\/p>\n
1.   Leave granted.\n<\/p>\n
2.   This   appeal  arises  against  the  judgment  of\t the
\nAllahabad  High Court in Second Appeal No. 89 of 1990  dated
\nDecember  21,  1992.  The facts in a nutshell are  that\t the
\nappellant-plaintiff  basing  on\t title\tlaid  the  suit\t for
\npossession  and mesne profits against the  respondent.\t The
\nrespondent  was\t inducted  into possession  of\tM.I.G.\tflat
\nallotted  to  her  by the Lucknow  Improvement\tTrust  later
\nrenamed\t as Lucknow Development Authority.  The rent was  Rs
\n30 per month.  It was covenanted that the respondent  should
\npay  every month a sum of Rs 24.50 to the L.I.T.\/L.D.A.\t and
\nthe  balance  to  the appellant.  On  March  15,  1971,\t the
\nappellant got issued a notice under Section 106 of the\tT.P.
\nAct determining the tenancy for default committed in payment
\nof  the\t rent.\t Thereon, the respondent  replied  that\t the
\nappellant was only his benamidar and he is the real owner of
\nthe  property.\tThe appellant paid the installments and\t got
\nthe  sale  deed executed in 1977 by L.I.T.  or\tL.D.A.\tSuit
\nnotice\twas issued in 1978 on the ground that the denial  of
\nthe appellant’s title constitutes forfeiture of the  tenancy
\nwhich the respondent had with the appellant.  The respondent
\nreiterated  in\this written statement that he  is  the\treal
\nowner and remained in possession as owner of the suit  house
\nand  the appellant is only benamidar.  The  respondent\talso
\nlater filed an application under Order 6 Rule 17, CPC to add
\npara  21-A  claiming  alternatively  compensation  for\t the
\nimprovements made by him.  Framing appropriate issues and on
\naddiction  of  evidence,  the trial  court  found  that\t the
\nappellant has title to the property, by denial of the title,
\nthe  respondent forfeited his tenancy and decreed the  suit.
\nPending\t  first\t  appeal,  the\trespondent   filed   another
\napplication  on March 30, 1989 for amendment of the  written
\nstatement setting up the plea of “adverse possession”.\t The
\nappellate  court  rejected the application,  considered\t the
\ncase on merits and confirmed the decree of the trial  court.
\nIn the second appeal the learned Single Judge considered and
\nallowed\t the  application  for\tamendment,  set\t aside\t the
\nfindings  of the courts below and remitted the case  to\t the
\ntrial  court for fresh trial.  Thus this appeal\t by  special
\nleave.\n<\/p>\n
3.   It\t is settled law as laid down by this Court  in\tFirm
\nSriniwas Ram Kumar v. Mahabir Prasad<\/a> that it is open to\t the
\nparties to raise even mutually inconsistent pleas and if the
\nrelief could be founded on the alternative plea it could  be
\ngranted.    If\tthe  facts  are\t admitted  in  the   written
\nstatement,  the relief could be granted to the plaintiff  on
\nthe  basis  of the evidence though inconsistent\t pleas\twere
\nraised.\t Amendment to written statement cannot be considered
\non  the same principle as an amendment to the  plaint.\t The
\npleas  in  the written statement may be\t alternative  or  on
\nadditional ground or to substitute the original plea.  It is
\nequally settled law that amendment of the pleadings could be
\nmade  at  any stage of the proceedings.\t Instances  are\t not
\nwanting that pleadings are permitted to be amended even when
\nsecond\tappeal is pending.  Equally it was refused.   It  is
\nnot  necessary to burden the judgment by copious  references
\nthereof.  But
\n1  AIR 1951 SC 177: 1951 SCR 277
\n32<\/span>
\neach  case  depends  upon  its\town  facts.   The  essential
\nrequisites are that the delay in making the application; the
\nreason\ttherefore should be given and considered; and  there
\nshould\tbe  no prejudice caused to the other side.   Bar  of
\nlimitation  which  is  available to the\t parties  cannot  be
\npermitted  to be defeated.  It is also settled law  that  if
\nthe  relief  is found on the same cause\t of  action,  though
\ndifferent  sets of facts are sought to be brought on  record
\nby  appropriate pleadings, it cannot be refused.   In  those
\ncircumstances,\tpermission to amend the pleadings  could  be
\ngranted.\n<\/p>\n
4.   The  question  in\tthis case is  whether  the  plea  of
\nadverse\t possession  sought to be set up by  the  respondent
\ncould  be permitted to be raised.  The pleas based on  title
\nand  adverse possession are mutually inconsistent  and\ttile
\nlatter\tdoes  not  begin  to operate  until  the  former  is
\nrenounced.  It is his own case that he came into  possession
\nof  the\t suit  house  in  his  own  right  and\tremained  in
\npossession  as an owner.  The appellant is  only  benamidar.
\nTherefore,  his\t plea is based on his own title.   He  never
\ndenounced his title nor admitted the title of the appellant.
\nHe  never  renounced  his character as\tan  owner  asserting
\nadverse possession openly to the knowledge of the  appellant
\nand  the  appellant’s acquiescence to  it.   Thereafter,  he
\nremained  in open and peaceful possession and  enjoyment  to
\nthe  knowledge\tof the\tappellant  without  acknowledging\/or
\nacquiescing the right, title and interest of the  appellant.
\nThe  plea  of adverse possession, though  available  to\t the
\nrespondent, was never raised by him.  Only on receipt of the
\nfirst  notice he denied title of the appellant and  made  it
\nknown to him for the first time through the reply notice got
\nissued by him.\tEven then the plea of adverse possession was
\nnot raised in the written statement.  No explanation for the
\nbelated plea was given.\t Even assuming that the reply  dated
\nMarch 15, 197 1 constitutes assertion of adverse possession,
\nthe Imitation would start running against the appellant only
\nfrom  March 15, 197 1 and not earlier.\tTile suit was  filed
\nin  1978 within 12 years.  Under these\tcircumstances,\ttile
\nHigh Court is not justified in permitting the respondent  to
\nraise the plea of adverse possession.  It is made clear that
\nwe  are not expressing any opinion on merits.  The  judgment
\nof the High Court is set aside and the matter is remitted to
\nthe  High  Court for disposal on merits\t according  to\tlaw.
\nTile appeal is allowed but without costs.\n<\/p>\n
33<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Gujarat Housing Board Engineers … vs State Of Gujarat on 5 November, 1993 Equivalent citations: 1994 SCC (2) 24, JT 1993 (6) 469 Author: K Singh Bench: Kuldip Singh (J) PETITIONER: GUJARAT HOUSING BOARD ENGINEERS ASSN. Vs. RESPONDENT: STATE OF GUJARAT DATE OF JUDGMENT05\/11\/1993 BENCH: KULDIP SINGH (J) BENCH: KULDIP SINGH […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-46879","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nGujarat Housing Board Engineers ... vs State Of Gujarat on 5 November, 1993 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/gujarat-housing-board-engineers-vs-state-of-gujarat-on-5-november-1993\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Gujarat Housing Board Engineers ... vs State Of Gujarat on 5 November, 1993 - 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