Saturday, June 26, 2010

IMPROVMENT TRUST, LUDHIANA Versus UJAGAR SINGH & ORS.

Limitation Act
Section 5 - Delay - Condonation - Refusal on technical grounds - Compensation not deposited by appellant - Property attached - Despite notice none appeared - Property auctioned - Respondent No.5 highest bidder - Objections filed - Again no appearance at the time of recording evidence - Evidence closed on 29.5.93 - Objections dismissed - Sale confirmed on 5.6.93 - Appeal against those orders delayed by two months and few days - Application for condonation of delay as also appeal dismissed - Appellant's revision dismissed - Application for review dismissed. Held unless conduct of the party is grossly malafides, as a normal rule, delay should be condoned and not disallowed on technical grounds. In this case, delay being not that huge, could have been condoned, without prejudicing the respondents. Had appellant been informed by its Advocate and then acted callously its conduct would have been negligent. As soon as appellant learnt about dismissal of its objection by Executing Court, it filed appeal. Matter should have been considered on merits and in accordance with law rather than technicalities and that too at the threshold. Matter remitted to the Executing Court. Since Respondent No.5 invested a huge amount in the year 1992 but could not benefit from the same, appellant to pay Rs.50,000/- to him as a condition precedent to prosecution of its objections.

Supreme Court of India

CIVIL APPEAL NOS. 2395 of 2008

Judge(s): DEEPAK VERMA , K.S. RADHAKRISHNAN

Date of Judgment: 09 June, 2010

IMPROVMENT TRUST, LUDHIANA Versus UJAGAR SINGH & ORS.


O R D E R1 Heard counsel on either side at length. Records perused.

2 Even though both sides had cited several decisions of this Court on the scope and application of Section 5 of the Limitation Act, but it is neither necessary nor required to deal with those cases in the peculiar facts and circumstances of this case.

3 Land belonging to Respondent Nos. 1 to 4 was acquired by the appellant Improvement Trust, Ludhiana, for development scheme popularly known as "550 Acres Scheme". Reference Court had passed the Award and fixed the amount of compensation at rupees 4,27,068.20 paise together with interest at the rate of 9% per annum from the date of the issuance of the notification in favour of Respondent Nos. 1 to 4. The appellant did not deposit the amount. Respondent Nos. 1 to 4 had to approach the Executing Court for recovery of the amount awarded. The property described as Khewat No.867 Khautani No.971 Khasra No.272 admeasuring 7K-18M entered in jamabandi for the year 1988-89 in village Jabaddi No.160 Tehsil and District

1 Ludhiana was attached for realisation of the decretal amount. Later a notice under Order 21 Rule 66 of the Code of Civil Procedure (hereinafter shall be referred to as `C.P.C.') was stated to have been issued to the appellant. However, despite service of notice, none appeared on behalf of the appellant /judgment debtor.

2 The property was put to an auction sale on 12/8/1992. Respondent No. 5 herein, M/s. Jagan Singh and Company (hereinafter shall be referred to as `the Company') offered Rs.22,65,000/-, and thus was declared as the highest bidder. Sale was knocked down in its favour, and later confirmed in its favour.

3 The appellant then woke up from its slumber and filed objections under Order 21 Rule 90 CPC raising various grounds. Executing Court then framed issues, reproduced by the learned Single Judge in the impugned order. The case was thereafter fixed for recording of the evidence of judgment-debtor on 19/3/1993, 17/4/1993, 8/5/1993 and 29/5/1993. However, on the aforesaid dates none appeared on behalf of the appellant. Consequently, the evidence of appellant/judgment debtor was closed. As a necessary consequence thereof appellant's objections came to be dismissed in default due to non- appearance.

5 Mr. P.K. Jain, Advocate used to appear for the appellant- Trust, but did not appear on the above mentioned dates. The order-sheet dated 29/5/1993 reproduced in the impugned order passed by the learned Single Judge reflected the same. Case was posted for confirmation of sale on 5/6/1993, again there was no appearance and the sale was confirmed in favour of respondent No.5. It is reported pursuant thereto sale deed was executed in its favour through court. Out of the bid amount of Rs.22,65,000/- the awarded amount due to respondents 1 to 4 was released, and remaining is lying in deposit with the Executing Court.

12 The appellant thereafter filed miscellaneous appeal before the District Judge, Ludhiana, challenging the correctness propriety and validity of the orders passed on 29/5/1993 and 5/6/1993, made over to Additional District Judge, Ludhiana. Said appeal was barred by limitation by two months and few days, exact delay has not been reflected in any of the orders. But after going through the files it appears that delay was for about two months and few days. An application under Section 5 of the Limitation Act was filed to condone delay but was dismissed by the Appellate Court stating therein that no good and sufficient grounds were shown for condonation of delay. Consequently the appeal was also dismissed.

14 Thereafter, appellant under some mistaken advice filed execution second appeal in the High Court of Punjab and Haryana at Chandigarh registered as Execution Second Appeal No. 820 of 1994. On objections being raised with regard to its maintainability, in the light of the specific bar created under Section 104 of the CPC, learned Single Judge converted the appeal into civil revision and proceeded to decide as such.

15 Respondent No.5 contended that no error was committed by the Executing Court in dismissing the appellant's application for setting aside the sale. Similarly the first Appellate Court also committed no error in dismissing the Appellant's appeal as no good and sufficient cause were shown for condoning delay. The objections raised by respondent No.5 found favour by the 2 learned Single Judge of the High Court and the appeal/revision of the appellant was dismissed on 9/5/2003. In the light of the aforesaid orders the objections preferred by appellant herein purportedly filed under Order 21 Rule 90 of the CPC met with the fate of dismissal. Appellant also filed an application for review of the order dated 9/5/2003 passed by High Court under Order 47 Rule 1 of the CPC but was also dismissed on 8/7/2004, against which C.A. No. 2395/2008 has been filed before this Court. Since parties are same and common issues arise for consideration they are heard analogously and disposed of by a common order.

3 Learned senior counsel appearing for appellant Mr. Salil Sagar with Mr. Arun K. Sinha, contended that appellant had been contesting the matter in right earnest right from the very beginning and had implicit faith and confidence in his Advocate Mr. P.K. Jain, who had been appearing for the appellant not only in this case but in several other cases. According to him there was no reason to doubt that he would not appear on various dates of hearing and then would not even inform the appellant about the progress of the case. In other words, it has been contended that whatever best was possible to be done by the appellant that had been done, therefore even though there has been some delay, on account of non-communication of the passing of the impugned order challenged in appeal, delay should have been condoned and the matter should not have been thrown at the threshold. To show its bonafides various order-sheets passed by Trial Court and the Executing Court have been brought to our notice. The envelop maintained by Mr. P.K.Jain, Advocate, for keeping the brief, has been filed to show that dates of hearing were mentioned therein.

1 On the other hand, Mr. Vijay Hansaria, learned senior counsel appearing for respondent No.5, with his polite yet usual vehemence submitted that list of dates as filed by the Company would show and reveal the callous and negligent attitude of the appellant or its Advocate, therefore no indulgence should be shown to it. It was contended that the indifferent attitude of the appellant in prosecuting the matter had not come to an end and Appellant had learnt no lessons from its previous defaults.

2 Even though appeal was dismissed by First Appellate Court on the ground of delay, stood confirmed by the High Court but even the Special Leave Petition was delayed by 258 days in refiling there was further delay of 90 days. No doubt it is true that this Court after considering the appellant's application was pleased to condone delay and leave was granted. But this has been argued by Mr. Vijay Hansaria to show the conduct, behaviour and attitude of the appellant in prosecuting the matter.

3 Be that as it may, we are of the opinion that the delay in filing the first appeal before District Judge, Ludhiana, for setting aside the sale has not been so huge warranting its dismissal on such hypertechnical ground. In fact, according to us, appellant had taken all possible steps to prosecute the matter within time. Had there been an intimation sent to the appellant by Mr. P.K. Jain, its erstwhile Advocate, and if even thereafter appellant had acted callously then we could have understood the negligent attitude of the appellant but that was not the case here. No sooner the appellant came to know about the dismissal of its objection filed before the Executing 1 Court, under Order 21 Rule 90 of the CPC it made enquiries and filed the appeal. While considering the application for condonation of delay no straight jacket formula is prescribed to come to the conclusion if sufficient and good grounds have been made out or not. Each case has to be weighed from its facts and the circumstances in which the party acts and behaves. From the conduct behaviour and attitude of the appellant it cannot be said that it had been absolutely callous and negligent in prosecuting the matter. Even though Mr. Vijay Hansaria appearing for the respondent No.5 has argued the matter at length and tried his best to persuade us to come to the conclusion that no sufficient grounds made out to interfere with the concurrent findings of facts but we are afraid, we are not satisfied with the line of arguments so adopted by the counsel for respondent No.5 and cannot subscribe to the same.

2 After all, justice can be done only when the matter is fought on merits and in accordance with law rather than to dispose it of on such technicalities and that too at the threshold. Both sides had tried to argue the matter on merits but we refrain ourselves from touching the merits of the matter as that can best be done by the Executing Court which had denied an opportunity to the appellant to lead evidence and to prove the issues so formulated.

3 In our opinion, ends of justice would be met by setting aside the impugned orders and matter is remitted to the Executing Court to consider and dispose of appellant's objections filed under Order 21 Rule 90 of CPC on merits and in accordance with law, at an early date. It is pertinent to point out that unless malafides are writ large on the conduct of the party, generally as a normal 1 rule, delay should be condoned. In the legal arena, an attempt should always be made to allow the matter to be contested on merits rather than to throw it on such technalities.

2 Apart from the above, appellant would not have gained in any manner whatsoever, by not filing the appeal within the period of limitation. It is also worth noticing that delay was also not that huge, which could not have been condoned, without putting the respondents to harm or prejudice. It is the duty of the Court to see to it that justice should be done between the parties.

3 For the aforesaid reasons the impugned orders passed by Appellate Court, and order passed by the High Court, are hereby set aside and quashed. As a consequence, the matter stands remitted to the Executing Court for deciding the appellant's application filed under Order 21 Rule 90 of CPC at an early date on merits. Since there are only two contesting parties to the litigation that is to say the appellant and respondent No.5, both would appear before the Executing Court on 20/7/2010. Being an old case an endeavour would be made by the Executing Court to take up the case as far as possible, on day-to-day basis and no party would seek an undue adjournment in the matter. We make it clear that we have expressed no opinion, on the merits of the matter and any observation made herein would not be construed as an expression of opinion on merits.

4 We are conscious of the fact that respondent No.5 has been put to inconvenience and harassment as admittedly it had deposited a huge amount of Rs.22,65,000/- in the year 1992 but has not been able to get any fruits thereof till date. Therefore the appellant's appeal is allowed subject 1 to payment of Rs.50,000/- (Rupees fifty thousand) to respondent No.5 within three weeks hereof. Payment of cost is condition precedent, without which the appellant would not be allowed to prosecute its objections. The appeal therefore stands allowed to the aforesaid extent. The appellant to bear the cost through out. In the light of this order, other civil appeal No. 2397/2008 stands allowed to the aforesaid extent only.

NANHAR & ORS. Versus STATE OF HARYANA

Indian Penal Code, 1860 Section 302/149 - Dying declaration - Circumstantial evidence - Deceased having illicit relationship with wife of accused - Rumours in village - Deceased allegedly killed by forceful administration of poison with liquor by appellants - No injuries found on his person to show resistance - Poison neither found in bottles nor in glass but on earth - Site plan and inquest report silent about recovery of dying declaration written on paper of match box and indexed telephone directory - Contradictions in the evidence of witnesses to recovery memo - ASI who made inquest report died - Other policemen with him not examined - Dying declaration not signed - No explanation why blank papers from directory not used - No Pen or inner pocket of match box recovered - Post-mortem report showed death to be at night - No provision of electricity - Finger prints of accused and deceased not taken - Deceased standard signatures available but not made basis for comparison of his hand-writing - Evidence of independent witness not taken - Motive not established. Held deceased who was heavily drunk and had taken poison could not be stated to be mentally fit to write dying declaration that too with steady hands. Directory and dying declaration were not proved to be of deceased. Had appellants been present at the scene they wouldnt have allowed making of such declaration. Chain of circumstances being incomplete, judgement of High Court upholding conviction by Trial Court is set aside.

Supreme Court of India

CRIMINAL APPEAL NO. 2496 of 2009

Judge(s): DEEPAK VERMA , K.S. RADHAKRISHNAN

Date of Judgment: 11 June, 2010

NANHAR & ORS. Versus  STATE OF HARYANA


O R D E R



1. Appellant five in number, in both the appeals, feeling aggrieved by the judgment and order of conviction dated 7/5/2008 passed in Criminal Appeal No.919-DB/2006 by Division Bench of High Court of Punjab and Haryana at Chandigarh, arising out of the judgment and order of conviction dated 24/11/2006 and order of sentence dated 25/11/2006 pronounced by Additional Sessions Judge, Bhiwani, convicting them for commission of offences under Sections 302/149 of the IPC and awarding sentence to undergo RI for life, together with fine of Rs.2,000/-, are before us challenging the same on variety of grounds.

2. It may be mentioned herein that initially charge-sheet was filed only against four accused namely Nanhar, Virender @ Binder, Rampat and Rajbir @ Meda under Sections 306/34 IPC. The name of the fifth accused Umed Singh was added subsequently by the Trial Court on an application being filed by the prosecution under Section 319 of the Code of Criminal Procedure and allowed on 3.6.2004. The order of committal makes it clear that the first four appellants were charged and prosecuted for commission of offence under Sections 306/34 IPC. Accordingly it was committed to Court of Sessions for being tried for the aforesaid offences. However, on 5.10.2004 charge was framed by the learned Trial Judge under Sections 302/34 IPC. Even though Umed Singh was added subsequently as one of the accused but the charge was not altered to one under Section 149 of the I.P.C.

3. Thumbnail sketch of the facts of the case is as under: Kartar Singh elder brother of Vijay deceased had filed an application on 27/2/2004 before the Superintendent of Police Bhiwani, alleging therein that he is resident of village Malkosh Tehsil Charkhi Dadri, District Bhivani and has been serving Armed forces for last 20 years. He has a residential house of his own in Rewari Town wherein his family and aged mother are residing. His younger brother Vijay, the deceased, was residing in Malkosh and was looking after the agricultural land owned by them. One Bhajani wife of Roop Ram, of the same village was on visiting terms to the house of Vijay as he was having small flour mill in his house. She used to come for grinding of wheat. In the course of time she developed family relations with Vijay. There was a rumour in the village that she had forced her own daughter-in-law Kamlesh, wife of Rampat, one of the accused herein, to have illicit relations with deceased Vijay. In lieu whereof it was said that she had received a sum of Rs. 1,000/- from Vijay. It was also the case of the prosecution that Vijay and Kamlesh wife of Rampat - appellant No.3 were seen in the field by many villagers and they had a doubt about their relationship. In fact, their relationship had become talk of the village. Rampat, the accused, came to know about the said relationship. Therefore, he along with other co-accused Nanhar Virender and Rajbir decided to finish Vijay. On coming to know about the motive of the accused, Vijay had left village Malkosh for some time.

4. It was further mentioned that aforesaid four accused had told PW.11 Dalip, uncle of deceased Vijay, about their intention. They wanted to take revenge with Vijay on account of his relationship with Kamlesh, wife of Rampat. They further informed that this illicit relationship will not be tolerated by them and therefore they are planning to kill Vijay.

5. On 24/2/2004 PW.7 Sudesh, cousin of deceased Vijay informed PW.9 Kartar Singh, on telephone that Vijay has been murdered and his dead body was lying in his field. It was further informed that some poisonous substance was administered to Vijay by accused Nanhar, Virender and Rajvir and Rampat. He was asked to reach Malkosh from Rewari immediately. On the same night, Kartar Singh reached village Malkosh and found his brother dead. On enquiries being made by him it was found from the villagers that he has been done away with by administering poisonous substance to him by aforesaid persons. This fact stood fortified from a small note said to be Vijay's dying declaration, written on the inside paper of the match box, recovered from the pocket of his pants. In the same, name of Meda Panch was also mentioned that they had mixed sulphas in the drink which was administered to him and it is likely to take away his life.

6. The said two pages written complaint dated 27.2.2004 was submitted by Kartar Singh to Superintendent of Police, Bhiwani. A note was endorsed by the Superintendent of Police to Deputy Superintendent of Police to look into the matter and do the needful. DSP sent it to SHO of Police Station Bhond Kalan, who was directed to investigate the matter, in accordance with law. The said written complaint was treated as an F.I.R. and formal FIR came to be registered on 6/3/2004, that is to say almost after 11 days from the date of occurrence of the incident.

7. It is pertinent to mention here that on 24.2.2004, PW.11 Dalip while proceeding to lodge the report had met ASI Raj Kumar (reported to be dead) at the bus stop of Malkosh and had orally informed him about the incident. His statement to the police was entered into Daily Diary (Rojnamcha) by Sub-Inspector Raj Kumar at the Police Station.

8. On such report being received by him, ASI Raj Kumar reached the spot and prepared the inquest report Ext.PN. In column No.12, dealing with in what manner or by what weapon of instrument such marks or injuries appeared to have been inflicted, he recorded: "appears to have taken poisonous substance".

9. In the same inquest report, ASI Raj Kumar recorded detailed version of Dalip as was given to him. According to Dalip, his nephew Vijay either took poisonous substance himself on account of the fact that villagers had come to know about his illicit relationship with Kamlesh, wife of Rampat or someone had forcibly administered it to him. He further got it recorded that he had left his other nephew PW.7 Sudesh at the place of occurrence for the safety of dead body and had come to the Police Station. But since ASI Raj Kumar met him at the bus stop of Malkosh, he is getting the said statement recorded.

10. ASI Raj Kumar recorded further in the said inquest report that after getting this information he went to the place of occurrence and found dead body of Vijay. The same was lying in a straight posture, mouth and eyes were found to be little open. He was wearing terricot pants along with ready made shirt but no external injuries were found on the body of the deceased. Height of the deceased was about 5' 9". Mouth was full of froth, a steel glass containing poisonous substance, and two bottles containing water and little liquor were found. However, Raj Kumar was not able to come to definite conclusion with regard to cause of death. Therefore, he thought it fit to wait till post- mortem report was received by him.

11. It is pertinent to mention here that neither in the statement of Dalip nor in the Inquest Report, there was any mention with regard to recovery of hand written dying declaration said to have been ascribed by deceased, from his pants.

12. Recovery memo was prepared by Raj Kumar, ASI in presence of two witnesses namely Dalip (PW.11) and Sudesh (PW.7). In the same it is said following articles were seized from the spot:- one hand written note authored by deceased Vijay, on the cover of the match box, two separate bottles, one containing water and another containing little liquor, one steel glass with name of Rampat ingraved. Earth containing white powder said to be poisonous substance was also collected. They all were sealed in different parcels and taken into police custody.

13. Translated copy of Ext.PG, dying declaration has been filed. The exact Hindi version written by him in the slip reads as thus: ""Daru ke sath Sulphas pila rahe hai. Marenge." (underlining by us) The said Inquest Report was prepared at the spot. In the site plan prepared there, neither recovery of pocket telephone directory nor recovery of pen was made. The statements of witnesses were recorded.

14. As mentioned hereinabove, initially Raj Kumar, ASI (now dead) did not find commission of any cognizable offence, thus he dropped the proceedings. Only after registration of the FIR on 6/3/2004, the criminal machinery was set into motion.

15. Post-mortem on the dead body of the deceased Vijay was performed by PW.4 Dr. Kuldeep Singh. Post-Mortem Report is marked as Ext.PD. Doctor has opined that deceased was aged about 32 years, well built, having a height of about 5' 6", appears to be more appropriate than what was mentioned in the Inquest. He has further categorically recorded that on the dead body no bruises or wounds were found. Bladder and stomach both were found to be empty. The time of death was shown to be 36 hours prior to performing of post mortem. The cause of death was shown to be excessive drinking of alcohol with poisonous substance. On the strength of FSL report (Ext.P.1), poisonous substance was found to be aluminium phosphide. According to the doctor, consumption of excessive alcohol coupled with poisonous substance was sufficient to cause death in ordinary course of nature.

16. From the post-mortem report Exh. PE as also from the deposition of Dr. Kuldeep Singh-PW.4, either deceased had met with homicidal death or committed suicide.

17. Now the question that crops up for consideration before us is whether it was the act of the aforesaid five appellants, on account of which he met with the homicidal death or it was Vijay himself, with an intention to save his status and glory in the society, had consumed poisonous substance, thereby committed suicide.

18. Prosecution in all had examined 12 witnesses on its behalf, to bring home the charges levelled against the appellants. The accused had generally denied the charges levelled against them and submitted that Vijay had committed suicide, on account of his misdeeds. They pleaded innocence. They deposed that they have falsely been roped in by the prosecution on the strength of manufactured and engineered documents. The appellants did not lead any evidence on their behalf.

19. On appreciation of evidence available on record, learned Trial Judge found them guilty for commission of offences under Sections 302/149 of the IPC and awarded them sentences as mentioned hereinabove. The appeal filed by them in the High Court of Punjab and Haryana was dismissed and the findings recorded by the Trial Court were affirmed and the judgment and order of conviction of the Trial Court was maintained. Hence these appeals.

20. We have accordingly heard learned senior counsel Mr. S.K. Dubey with Ms. Mrinamayee Sahu and Sh. Ajay Beer Singh for the appellants and Mr. Kamal Mohan Gupta, learned counsel for the respondent and perused the record. Evidence adduced have also been critically and microscopically gone through by us.

21. Sheet anchor of the prosecution story has been the alleged dying declaration Exh. PG said to have been written by deceased Vijay, on the inside paper of a match box. English translation thereof reads thus: Rajbir Singh S/o Bhuru Rampat S/o Ruppa Binder Nanhar are drinking liquor by mixing the Sulphas and would kill. It was written in vernacular language and in Hindi, as mentioned earlier, reads as under: "Daru ke sath Sulphas pila rahe hai. Marenge."

22. The aforesaid dying declaration has been found to be sufficient by the two courts below and appellants have been found guilty for commission of offences under Sections 302/149 of the I.P.C. and have been awarded sentence as mentioned hereinabove.

23. Whether the same would fall in the category of dying declaration and if so, if it was sufficient to uphold the conviction and sentence awarded to them on the strength thereof, is required to be examined by us.

24. After critically going through the documents, not only Exh. PG but also the oral and other documentary evidence available on record, we find the following lacunae, shortcoming, lapses and deficiencies in the prosecution story: (i) the said dying declaration has not been signed by deceased Vijay. (ii) If the appellants were really present when the said dying declaration was said to have been written, then obviously they would not have allowed him to write the said dying declaration. (iii) No recovery of pen was made from the site or from the person of the the deceased. (iv) There is nothing either in the site plan or in the recovery memo to suggest that the deceased was able to get any platform on which he could have written the said dying declaration. (v) The inner pocket of the match box together with match sticks was not at all recovered. (vi) It is not established by the prosecution that the deceased was a smoker of bidi or cigarette. No butts or bidis were recovered from the place of occurrence. (vii) As per the post-mortem report performed on 25.2.2004, the death had occurred within 36 hours from the time of performing of the post-mortem, meaning thereby that the incident must have taken place some time in the night. (viii) There is nothing on record to show availability of electricity or any source of light at the spot. (ix) In the Inquest Report prepared by ASI Raj Kumar (now dead), there is no mention with regard to the recovery of the dying declaration Exh. PG or recovery of pocket index telephone directory. (x) Similarly, in the site plan prepared on the spot, there is no mention with regard to the recovery of dying declaration, pen or pocket diary from the place of occurrence or from the body of the deceased. (xi) No finger prints either of the deceased or of the accused were taken, even though the same were available. (xii) Report of the Chemical Examiner dated 6.10.2004 shows that the packets were received by him only on 10.3.2004 but no remnants of poisonous substance were found either in the two bottles or in the steel glass but were found only in the earth so collected from the place of occurrence. The poisonous substance has been described as Aluminium Phosphide. (xiii) Except for the evidence of PW-7 Sudesh, PW-8 Ramesh, PW-9 Kartar Singh, PW-11 Dalip, who all happened to be closely related to the deceased, evidence of an independent witness was not recorded, even though there is evidence available to show that many villagers were available. (xiv) The evidence of PW-7 Sudesh and PW-11 Dalip is highly contradictory inasmuch as Sudesh has not deposed anything with regard to recovery of pocket index telephone diary from the person of the deceased; whereas Dalip has categorically deposed with regard to recovery of pocket index telephone diary from his possession. It is pertinent to mention here that PW-7 Sudesh and PW-11 Dalip are the witnesses to the recovery memo said to have been prepared by ASI Raj Kumar who is said to have died during the pendency of the sessions trial, also does not record its recovery. (xv) It is extremely difficult to comprehend if the deceased was in a position to write the dying declaration, more so, after having consumed excessive amount of Alcohol mixed with poisonous substance. Fact of excessive amount of Alcohol mixed with poison stands proved from the evidence of PW-4 Dr. Kuldeep Singh, who had performed post-mortem (Exh. PD) on the person of the deceased. (xvi) The post-moretm report further reveals that the deceased was aged about 32 years having a height of 5 feet 6 inches with a robust body. It is inconceivable to believe that if the appellants would have tried to administer him Alcohol mixed with poisonous substance, he would not have resisted to the same or at least would not have made any hue and cry. It also stands proved from the evidence of PW-4 Dr. Kuldeep Singh and the post-mortem report that no bruises and external injuries were found on the person of the deceased. (xvii) No explanation has been offered by the prosecution as to why the blank pages of the pocket index telephone diary were not used to scribe it, if the same had been recovered from his possession. (xviii) The doctrine of motive could not be established by the prosecution at all. Thus another ground of holding them guilty on account of motive, completely shatters the prosecution story and falls flat. (xix) It could not be established that dying declaration and pocket index telephone diary belonged to the deceased only. This aspect of the matter has not been established by the prosecution. (xx) Even if it stood established from the opinion of the Handwriting Expert that dying declaration and pocket index telephone diary were in the same hand, still it could not be established that it belonged to the deceased only. (xxi) Possibility of implanting of these documents cannot be ruled out. (xxii) The said dying declaration does not inspire confidence, much less to hold the appellants guilty for commission of the said offence.

25. In fact, the salient features noted above with regard to the deficiencies are sufficient, in our considered opinion, to come to the conclusion that the Courts below committed grave error in holding the appellants guilty for commission of offence under Sections 302/149 of the I.P.C. But with intention to fortify our views, we would like to reiterate what this Court has already held in its earlier leading judgments.

26. Almost 25 years back, this Court in celebrated judgment in Sharad Birdhichand Sarda vs. State of Maharashtra, reported in 1984 (4) SCC 116, held in paragraph 151 and 161 thereof that it is well settled law that the prosecution must stand or fall on its own legs and it cannot derive any strength form the weaknesses of the defence. For ready reference, the said paragraphs are reproduced hereunder: "151. It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this: where various links in a chain are in themselves complete than a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a Court.

161. This Court, therefore, has in no way departed from the five conditions laid down in Hanumant's case (supra). Unfortunately, however, the High Court also seems to have misconstrued this decision and used the so-called false defence put up by the appellant as one of the additional circumstances connected with the chain. There is a vital difference between an incomplete chain of circumstances and a circumstance which, after the chain is complete, is added to it merely to reinforce the conclusion of the court. Where the prosecution is unable to prove any of the essential principles laid down in Hanumant's case, the High Court cannot supply the weakness or the lacuna by taking aid of or recourse to a false defence or a false plea. We are, therefore, unable to accept the argument of the Additional Solicitor-General."

27. Similarly, when the case is based on circumstantial evidence, it has now been well settled by several authorities of this Court that the chain of circumstances should be complete in all respect and the pointer of guilt should continuously be on the accused only. Any deviation of the pointer of guilt on the accused would enure him the benefit of doubt.

28. No doubt it is true that ASI Raj Kumar, who had prepared the Inquest Report had died during the pendency of the trial, but no reasons have been assigned as to why other police personnel present along with ASI Raj Kumar, were not examined. They could have at least explained the true picture and proved recovery of dying declaration and pocket telephone index diary from possession of deceased Vijay.

29. Admittedly, from the evidence of PW-7 Sudesh, it has come on record that the deceased Vijay was having bank account and he was also a member of some society, where his standard signatures were available. But those standard signatures were not made the basis for comparison of his hand-writing alleged to have been found from his possession. In the case of Sharad Birdhichand Sarda (supra), it has been dealt with elaborately as to how the chain of circumstantial evidence has to be complete in all respect. The relevant paragraphs 153 & 154 are reproduced herein below: "153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra(') where the following observations were made: 'Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.' (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty. (3) The circumstances should be of a conclusive nature and tendency. (4) They should exclude every possible hypothesis except the one to be proved, and 164 (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."

30. The aforesaid cardinal principles with regard to the completion of chain of circumstantial evidence for holding the appellants guilty could not be established at all by the prosecution in the present case. With such broken chain of circumstantial evidence, at many places, it would neither be safe nor prudent to hold the appellants guilty.

31. Apart from the above, it is extremely difficult for us to come to the conclusion if Exh. PG can fall in the category of dying declaration at all or can be said to be legally admissible. Even though we have categorically, minutely and with microscopic eyes gone through the said document number of times, but it does not inspire confidence, more so, the manner in which it has been written. We have already mentioned hereinabove that after having consumed excessive liquor, it would not have been possible for any one, much less for Vijay, to have written the said dying declaration with so much of precision or with steady hand. In our considered opinion, dying declaration should be such,which should immensely strike to be genuine and stating true story of its maker. It should be free from all doubts and on going through it, an impression has to be registered immediately in mind that it is genuine, true and not tainted with doubts. It should not be the result of tutoring. But dying declaration in the present case does not fulfill these conditions.

32. In HWV Cox Medical Jurisprudence and Toxicology, Seventh Edition, at page 936, under title "Alcohols", deals with handwriting after consumption of liquor. While coming to the general behaviour after excessive drinking, apart from other things, it has specifically been noted: "Character of hand-writing: There is often difficulty with letters, N, M and W."

33. In the same book, it is further described that blood reaches all the organs, mainly the brain and interferes with normal brain functions like judgment and coordination of muscular movements. The blood alcohol level influences the behaviour of the person. The amount of alcohol present in the stomach and intestine has no effect but only indicates the ingestion.

34. Obviously, it would go to show and we also come to the conclusion that after going through the handwriting, as has been found by us in the alleged dying declaration Ext. PG, it would have been extremely difficult for him to write it as he could not have been in a mentally fit condition to have written the same.

35. Unfortunately, this aspect of the matter has neither been considered by the learned Trial Judge nor has been adverted to by the Division Bench of the High court and yet the appellants have been found guilty for commission of the aforesaid offence.

36. In our considered opinion, the said judgment and order of conviction passed by the Trial Court and upheld by the High Court, cannot be sustained in law. They are accordingly set aside and quashed. As a necessary consequence thereof, the appellants would be set at liberty forthwith, if not required in connection with any other criminal case.

Both the appeals are allowed accordingly.

PUBLIC SERVICE COMMISSION, UTTARANCHAL Versus MAMTA BISHT & ORS.

Selection list — for quashment of — the Commission issued an advertisement inviting applications for posts of Civil Judge, (Junior Division) with clarification that the reservation policy adopted by the State in favour of SC/ST/OBC and horizontal reservation in favour of handicapped, and women etc. belonging to Uttaranchal would be applicable — respondent No. 1 qualified in the written examination but was not selected in the interview — respondent No.1 filed petition challenging the selection list mainly on the ground that women candidates belonging to Uttaranchal had secured marks making them eligible to be selected in general category and had it been done so, respondent No.1 could have been selected in reserved category being a woman of Uttaranchal — the High Court concluded that last selected woman candidate who was given benefit of horizontal reservation for Uttaranchal women had secured marks higher than the last selected candidate in general category. Thus, the said candidate ought to have been appointed against the general category vacancy and respondent No.1 ought to have been offered the appointment giving her the benefit of horizontal reservation for Uttaranchal women — the High Court allowed the writ petition only on the ground that the horizontal reservation is also to be applied as vertical reservation in favour of reserved category candidates — this Court held the impugned orders of the High Court not in consonance with law — set aside — appeals allowed.

Supreme Court of India

Civil Appeal No. 5987 of 2007

Judge(s): Dr. B.S. CHAUHAN , SWATANTER KUMAR

Date of Judgment: 03 June, 2010

PUBLIC SERVICE COMMISSION, UTTARANCHAL Versus MAMTA BISHT & ORS.


JUDGMENT1. These appeals have been preferred by the Public Service Commission and the State Government of Uttaranchal being aggrieved of the judgment and order of the High Court of Uttaranchal, Nainital dated 26.10.2005 allowing the Writ Petition No.780 of 2003 (M/B) and directing the present appellants to appoint respondent No.1- Ms. Mamta Bisht as Civil Judge, Junior Division in the State of Uttaranchal.

2. Facts and circumstances giving rise to these appeals are that Public Service Commission, Uttaranchal (hereinafter referred to as the `Commission') issued an advertisement dated 7.6.2002 inviting applications for 35 posts of Civil Judge, (Junior Division) with a stipulation that the number of vacancies may be increased or decreased. It clarified that the reservation policy adopted by the State i.e. reservation in favour of SC/ST/OBC and horizontal reservation in favour of handicapped, and women etc. belonging to Uttaranchal would be applicable. Respondent No.1 applied in pursuance of the said advertisement seeking benefit of reservation in favour of Uttaranchal women. She qualified in the written examination and thus faced the interview held by the Commission. The final result of the selection was declared on 31.7.2003 and it was evident from the result that respondent No.1 was not selected. Instead of filling of 35 vacancies, recommendations to fill up 42 vacancies were made as the decision had been taken in this regard prior to declaration of result. Out of 42 posts, 26 were filled up by general category and 16 by reserved category candidates. Some women candidates stood selected in general category while others had been given the benefit of horizontal reservation being resident of Uttaranchal. Respondent No.1, being aggrieved preferred Writ Petition No.780 of 2003 (M/B) in the High Court of Uttaranchal seeking quashment of select list dated 31.7.2003 mainly on the ground that women candidates belonging to Uttaranchal had secured marks making them eligible to be selected in general category and had it been done so, respondent No.1 could have been selected in reserved category being a woman of Uttaranchal. It had also been pleaded in the petition that some of the women candidates who not only claimed the benefit of horizontal reservation but have been selected giving the said benefit, did not submit their respective certificate of domicile at the time of filling up the application forms but they produced the said certificate at a later stage and it was accepted. The High Court accepted the first submission of respondent No.1 after examining the record of selection and came to the conclusion that last selected woman candidate who was given benefit of horizontal reservation for Uttaranchal women had secured marks higher than the last selected candidate in general category. Thus, the said candidate ought to have been appointed against the general category vacancy and respondent No.1 ought to have been offered the appointment giving her the benefit of horizontal reservation for Uttaranchal women. Hence, these appeals.

3. Shri S.S. Shamshery, Advocate appearing for the Commission and Shri Ashok Mahajan, Advocate appearing for the High Court have submitted that all the vacancies advertised had already been filled up before the writ petition could be filed. Not a single successful candidate had been impleaded as a respondent before the High Court. Thus, the petition ought to have been dismissed for not impleading the necessary parties. The High Court did not consider the issue of acceptance of domicile certificates by the Uttaranchal women at a belated stage nor any finding has been recorded on the said issue. The High Court failed to consider the principle that if a reserved category candidate secures more marks than the last selected candidate in general category, then he is to be appointed against the general category vacancy, does not apply while giving the benefit of horizontal reservation. The writ petition filed by the respondent did not have any factual foundation or proper pleadings and thus was not worth entertaining. It is well neigh impossible to implement the judgment of the High Court at this belated stage, for the reasons that all the vacancies advertised stood filled up in 2003. Subsequent to the selection involved herein appointments have been made several times. Judicial Officers appointed from the said selection have been promoted as Civil Judge (Senior Division). Respondent No.1 cannot be given seniority over and above the officers appointed in subsequent selections. Thus, appeals deserve to be allowed.

4. On the contrary, Shri R. Venkataramani, learned senior counsel appearing for respondent No.1 has vehemently opposed the appeals contending that great injustice has been done to respondent No.1. She has succeeded before the High Court on the sole ground that the last selected candidate receiving the benefit of horizontal reservation in favour of Uttaranchal women could be appointed against the general category vacancy and the respondent No.1 ought to have been selected giving her the benefit of horizontal reservation in favour of Uttaranchal women. There are still some vacancies from the said selection as two successful candidates have resigned after joining. Thus, respondent No.1 can be adjusted against one of such vacancies. Respondent No.1 has been issued appointment letter dated 17.5.2010 in pursuance of the impugned judgment, but has not yet been given posting by the High Court. Thus, she could not join the service. Thus, the appeals are liable to be dismissed.

5. We have considered the rival submissions made by learned counsel for the parties and perused the record.

6. It is settled legal proposition that vacancies over and above the number of vacancies advertised cannot be filled up. Once all the vacancies are filled up, the selection process comes to an end. In case a selected candidate after joining resigns or dies, the vacancy, so occurred cannot be filled up from the panel, which stood already exhausted. (Vide Rakhi Ray & Ors. Vs. The High Court of Delhi & Ors. AIR 2010 SC 932).

However, in the instant case, the advertisement itself made it clear that the vacancies could be increased and decreased and before completion of the selection process, a decision had been taken to fill up 42 instead of 35 vacancies and reservation policy had been implemented accordingly.

7. In case the respondent No.1 wanted her selection against the reserved category vacancy, the last selected candidate in that category was a necessary party and without impleading her, the writ petition could not have been entertained by the High Court in view of the law laid down by nearly a Constitution Bench of this Court in Udit Narain Singh Malpaharia Vs. Additional Member, Board of Revenue, Bihar & Anr., AIR 1963 SC 786, wherein the Court has explained the distinction between necessary party, proper party and proforma party and further held that if a person who is likely to suffer from the order of the Court and has not been impleaded as a party has a right to ignore the said order as it has been passed in violation of the principles of natural justice. More so, proviso to Order I, Rule IX of Code of Civil Procedure, 1908 (hereinafter called CPC) provide that non- joinder of necessary party be fatal. Undoubtedly, provisions of CPC are not applicable in writ jurisdiction by virtue of the provision of Section 141 CPC but the principles enshrined therein are applicable. (Vide Gulabchand Chhotalal Parikh Vs. State of Gujarat; AIR 1965 SC 1153; Babubhai Muljibhai Patel Vs. Nandlal, Khodidas Barat & Ors., AIR 1974 SC 2105; and Sarguja Transport Service Vs. State Transport Appellate Tribunal, Gwalior & Ors. AIR 1987 SC 88).

8. In Prabodh Verma & Ors. Vs. State of U.P. & Ors. AIR 1985 SC 167; and Tridip Kumar Dingal & Ors. Vs. State of West Bengal & Ors. (2009) 1 SCC 768), It has been held that if a person challenges the selection process, successful candidates or at least some of them are necessary parties.

9. All the 42 vacancies had been filled up, implementing the reservation policy. All the women candidates selected from reserved category indisputably belong to Uttaranchal and none of them is from another State.

10. The High Court decided the case on the sole ground that as the last selected candidate, receiving the benefit of horizontal reservation had secured marks more than the last selected general category candidate, she ought to have been appointed against the vacancy in general category in view of the judgment of this Court in Indra Sawhney Vs. Union of India, AIR 1993 SC 477, and the Division Bench judgment of High Court of Uttaranchal in Writ Petition No.816/2002 (M/B) (Km. Sikha Agarwal Vs. State of Uttaranchal & Ors.) decided on 16.4.2003, and respondent no.1 ought to have appointed giving benefit of reservation thus, allowed the writ petition filed by respondent No.1.

11. In fact, the High Court allowed the writ petition only on the ground that the horizontal reservation is also to be applied as vertical reservation in favour of reserved category candidates (social) as it held as under: "In view of above, Neetu Joshi (Sl.No.9, Roll No.12320) has wrongly been counted by the respondent No.3/Commission against five seats reserved for Uttaranchal Women General Category as she has competed on her own merit as general candidate and as 5th candidate the petitioner should have been counted for Uttaranchal Women General Category seats."

12. Admittedly, the said Neetu Joshi has not been impleaded as a respondent. It has been stated at the Bar that an application for impleadment had been filed but there is nothing on record to show that the said application had ever been allowed. Attempt had been made to implead some successful candidates before this Court but those applications stood rejected by this Court.

13. The view taken by the High Court on application of horizontal reservation is contrary to the law laid down by this Court in Rajesh Kumar Daria Vs. Rajasthan Public Service Commission & Ors. AIR 2007 SC 3127, wherein dealing with a similar issue this Court held as under: "9. The second relates to the difference between the nature of vertical reservation and horizontal reservation. Social reservations in favour of SC, ST and OBC under Article 16(4) are "vertical reservations". Special reservations in favour of physically handicapped, women, etc., under Articles 16(1) or 15(3) are "horizontal reservations". Where a vertical reservation is made in favour of a Backward Class under Article 16(4), the candidates belonging to such Backward Class, may compete for non- reserved posts and if they are appointed to the non- reserved posts on their own merit, their number will not be counted against the quota reserved for respective Backward Class. Therefore, if the number of SC candidates, who by their own merit, get selected to open competition vacancies, equals or even exceeds the percentage of posts reserved for SC candidates, it cannot be said that the reservation quota for SCs has been filled. The entire reservation quota will be intact and available in addition to those selected under open competition category. (Vide Indra Sawhney, R.K. Sabharwal v. State of Punjab, Union of India v. Virpal Singh Chauhan and Ritesh R. Sah v. Dr.Y.L. Yamul.) But the aforesaid principle applicable to vertical (social) reservations will not apply to horizontal (special) reservations. Where a special reservation for women is provided within the social reservation for Scheduled Castes, the proper procedure is first to fill up the quota for Scheduled Castes in order of merit and then find out the number of candidates among them who belong to the special reservation group of "Scheduled Caste women". If the number of women in such list is equal to or more than the number of special reservation quota, then there is no need for further selection towards the special reservation quota. Only if there is any shortfall, the requisite number of Scheduled Caste women shall have to be taken by deleting the corresponding number of candidates from the bottom of the list relating to Scheduled Castes. To this extent, horizontal (special) reservation differs from vertical (social) reservation. Thus women selected on merit within the vertical reservation quota will be counted against the horizontal reservation for women." (Emphasis added)

14. In view of the above, it is evident that the judgment and order of the High Court is not in consonance with law laid down by this Court in Rajesh Kumar Daria (supra). The judgment and order impugned herein is liable to be set aside and all consequential orders become unenforceable and inconsequential.

Thus, appeals succeed and are allowed. Judgment and order of the High Court dated 26.10.2005 passed in Writ Petition no.780/2003 (M/B) is hereby set aside. No costs.

Sunday, June 13, 2010

STATE OF ORISSA & ANR. Versus RAJKISHORE NANDA & ORS.

Appointment - Applications were invited for posts of Junior Clerks - 15 vacancies were advertised with a clear stipulation that number of vacancies may increase - Respondents applied in pursuance of the said advertisement - Written examination was held in accordance with Rules - Before the selection process could complete, the number of vacancies were increased from 15 to 33 and as per the requirement of Rules, a merit list of 66 candidates was published and appointments were made on the said posts - Respondents, whose names appeared in the merit list and could not be offered appointment, being much below in the merit list, filed applications before the Tribunal praying for a direction to the State to offer them appointments - Tribunal held that as the selection could not be held in subsequent years, thus, candidates whose names appeared in the panel should be offered appointment by granting relaxation of Rules - Tribunal concluded that appointments were to be offered to all the candidates till the entire select list stood exhausted - Writ petition was filed thereagainst - HC modified the order of the Tribunal issuing direction to the appellants to offer appointment to those persons who had approached the Tribunal - Hence, present appeal - Held, a person whose name appears in the select list does not acquire any indefeasible right of appointment - Empanelment at the best is a condition of eligibility for purpose of appointment and by itself does not amount to selection or create a vested right to be appointed - Vacancies have to be filled up as per the statutory rules and in conformity with the constitutional mandate - Further, vacancies cannot be filled up over and above the number of vacancies advertised as "the recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right u/art. 14 r/w art. 16(1) of the Constitution", of those persons who acquired eligibility for the post in question in accordance with the statutory rules subsequent to the date of notification of vacancies - Hence, once the selection process in respect of number of vacancies so determined came to an end, it is no more open to offer appointment to persons from the unexhausted list - It is exclusive prerogative of the employer/State Administration to initiate the selection process for filling up vacancies occurring during a particular year - Bonafide decision taken by the appointing authority to leave certain vacancies unfilled, even after preparing the select list cannot be assailed - Courts/Tribunals have no competence to issue direction to the State to initiate selection process to fill up the vacancies - In the present case, as the appointments had been made as per the select list prepared in 1995 and selection process came to an end, there was no occasion for the Tribunal to entertain the applications in 1997, 1998 and 1999 for the simple reason that once the number of vacancies determined are filled, the selection process came to an end, no further appointment could be made from 1995 panel - Judgment and order impugned set aside - Appeal allowed.

Supreme Court of India Civil Appeal No. 2808 of 2008

Judge(s): Dr. B.S. CHAUHAN , SWATANTER KUMAR

Date of Judgment: 03 June, 2010

STATE OF ORISSA & ANR. Versus RAJKISHORE NANDA & ORS.


JUDGMENT

1. The present appeal has been preferred against the Judgment and Order of the Orissa High Court dated 26.10.2005 passed in OJC Nos. 10582, 11262, 11268, 11269, 11271, 11273, 11275, 11279, 11280, 11324 & 11326 of 2000, by which the High Court dismissed the Writ Petition filed by the State of Orissa/Appellant against the Judgment and order of the Orissa Administrative Tribunal, Cuttack (hereinafter called as, "the Tribunal") dated 7.4.2000 issuing direction to the appellant to appoint all the persons whose names appeared in the panel for the selection on the post of Junior Clerk held in 1995.

2. Facts and circumstances giving rise to the present appeal are that in order to fill up 15 posts of Junior Clerks in District Sonepur, applications were invited by an advertisement dated 25.06.1995. The advertisement made it clear that number of vacancies could be increased. The respondents applied in pursuance of the said advertisement along with large number of persons and written examination was held in accordance with the Orissa Ministerial Service (Method of Recruitment to Posts of Junior Clerks in the District Offices) Rules, 1985 (hereinafter called as, "Rules, 1985"). Before the selection process could complete, the number of vacancies were increased from 15 to 33 and as per the requirement of Rules, 1985, a merit list of 66 candidates was published on 6.11.1995. The appointments were made on the said posts. The respondents, whose names appeared in the merit list and could not be offered appointment, being much below in the merit list, filed applications before the Tribunal praying for a direction to the State to offer them appointments. The Tribunal, vide its Judgment and Order dated 7.4.2000, came to the conclusion that appointments were to be offered to all the candidates till the entire select list stood exhausted. Therefore, the Tribunal directed to offer appointment to all left over candidates in the select list of 1995.

3. Being aggrieved, the State preferred the writ petition against the said common Judgment and order of the Tribunal in the High Court of Orissa and the High Court, vide Judgment and order dated 26.10.2005, modified the order of the Tribunal issuing direction to the appellants to offer appointment to those persons who had approached the Tribunal. Hence, this appeal.

4. Sh. Janaranjan Das, learned counsel appearing for the appellant-State, has submitted that number of vacancies cannot be filed up over and above the number of vacancies advertised. Once the advertised vacancies are filled up, the selection process stands exhausted and the selection process comes to an end. Where the Rules provide to determine the vacancy yearly, life of select list cannot be more than one year and once the life of the select list expires, no appointment can be offered from the panel so prepared. The Tribunal and the High Court committed an error issuing directions to appoint the candidates from the unexhausted part of the select list, which is not permissible in law. Thus, the appeal deserves to be allowed.

5. Per contra, Sh. H.P. Sahu and Sh. J.P. Mishra, learned counsel appearing for the respondents vehemently opposed the appeal contending that if the selection is not held in subsequent years, candidates whose names appear in the panel have to be offered appointments. Therefore, no interference is required with the impugned Judgment and order of the High Court. The appeal lacks merit and thus, liable to be dismissed.

6. We have considered the rival submissions of the learned counsel for the parties and perused the record.

7. Relevant Rules from Rules, 1985, which are necessary to be considered for deciding the appeal, read as under :- "Rule 2 Definitions - In these rules unless the context otherwise requires - ................... "Year" means a calendar year. Rule 3 Recruitment Recruitment to the posts shall be made through direct recruitment by means of a competitive examination to be held ordinarily once in every year. Rule 6 Notification of vacancies On the receipt of the requisite information from the District Officers the Chairman of the Board shall notify the total number of vacancies to the local employment exchange indicating therein the number of reserved vacancies for the purpose of conducting the competitive examination. Rule 11 (1) Allotment of successful candidates The Chairman of the Board shall ensure completion of evaluation of answer papers and preparation of the list of successful candidates who have qualified by such standards as will be decided by him ordinarily within two months from the date of examination. The candidates' names shall be arranged in order of merit on the basis of marks secured by them in the examination conducted by the Board. This list of successful candidates drawn in order of merit shall not ordinarily exceed double the number of vacancies as determined under Rule 6. Rule 12 The list prepared under Sub-rule (1) of Rule 11 shall remain valid for a period of one year from the date of publication of the same or till drawal of the next year's list, whichever is earlier.

8. If the aforesaid relevant Rules are read together, the cumulative effect thereof comes to that after determining the number of vacancies taking into consideration the expected vacancies, the same shall stand notified to local Employment Exchange and advertise the same through other means. The select list, after holding the test as required under the Rules, 1985, shall be prepared and published, which shall contain the names of candidates, double the number of vacancies so advertised/determined.

9. Rule 14 merely enables the State Government to relax the eligibility conditions by recording reasons in respect of any class or categories of persons in public interest.

10. It is a settled legal proposition that vacancies cannot be filled up over and above the number of vacancies advertised as "the recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Article 14 read with Article 16(1) of the Constitution", of those persons who acquired eligibility for the post in question in accordance with the statutory rules subsequent to the date of notification of vacancies. Filling up the vacancies over the notified vacancies is neither permissible nor desirable, for the reason, that it amounts to "improper exercise of power and only in a rare and exceptional circumstance and in emergent situation, such a rule can be deviated and such a deviation is permissible only after adopting policy decision based on some rational", otherwise the exercise would be arbitrary. Filling up of vacancies over the notified vacancies amounts to filling up of future vacancies and thus, not permissible in law. (Vide State of Bihar & Ors. Vs. The Secretariat Assistant S.E. Union 1986 & Ors. AIR 1994 SC 736; Prem Singh & Ors. Vs. Haryana State Electricity Board & Ors. (1996) 4 SCC 319; Ashok Kumar & Ors. Vs. Chairman, Banking Service Recruitment Board & Ors. AIR 1996 SC 976; Surinder Singh & Ors. Vs. State of Punjab & Ors. AIR 1998 SC 18; and Rakhi Ray & Ors. Vs. High Court of Delhi AIR 2010 SC 932).

11. In State of Punjab v. Raghbir Chand Sharma and Ors. AIR 2001 SC 2900, this Court examined the case where only one post was advertised and the candidate whose name appeared at Serial No. 1 in the select list joined the post, but subsequently resigned. The Court rejected the contention that post can be filled up offering the appointment to the next candidate in the select list observing as under: "With the appointment of the first candidate for the only post in respect of which the consideration came to be made and select list prepared, the panel ceased to exist and has outlived its utility and at any rate, no one else in the panel can legitimately contend that he should have been offered appointment either in the vacancy arising on account of the subsequent resignation of the person appointed from the panel or any other vacancies arising subsequently."

12. In Mukul Saikia and Ors. v. State of Assam and Ors. AIR 2009 SC 747, this Court dealt with a similar issue and held that "if the requisition and advertisement was only for 27 posts, the State cannot appoint more than the number of posts advertised". The Select List "got exhausted when all the 27 posts were filled". Thereafter, the candidates below the 27 appointed candidates have no right to claim appointment to any vacancy in regard to which selection was not held. The "currency of Select List had expired as soon as the number of posts advertised are filled up, therefore, the appointments beyond the number of posts advertised would amount to filling up future vacancies" and said course is impermissible in law.

13. A person whose name appears in the select list does not acquire any indefeasible right of appointment. Empanelment at the best is a condition of eligibility for purpose of appointment and by itself does not amount to selection or create a vested right to be appointed. The vacancies have to be filled up as per the statutory rules and in conformity with the constitutional mandate.

14. A Constitution Bench of this Court in Shankarsan Dash Vs. Union of India, AIR 1991 SC 1612, held that appearance of the name of a candidate in the select list does not give him a right of appointment. Mere inclusion of candidate's name in the select list does not confer any right to be selected, even if some of the vacancies remain unfilled. The candidate concerned cannot claim that he has been given a hostile discrimination. (see also Asha Kaul & Anr. Vs. State of J & K & Ors., (1993) 2 SCC 573; Union of India Vs. S.S.Uppal, AIR 1996 SC 2340; Bihar Public Service Commission Vs. State of Bihar AIR 1997 SC 2280; Simanchal Panda Vs. State of Orissa & Ors., (2002) 2 SCC 669; Punjab State Electricity Board & Ors. Vs. Malkiat Singh (2005) 9 SCC 22; Union of India & Ors. Vs. Kali Dass Batish & Anr. AIR 2006 SC 789; Divisional Forests Officers & Ors. Vs. M. Ramalinga Reddy AIR 2007 SC 2226; Subha B. Nair & Ors. Vs. State of Kerala & Ors., (2008) 7 SCC 210; Mukul Saikia & Ors. Vs. State of Assam & Ors., (2009) 1 SCC 386; and S.S. Balu & Anr. Vs. State of Kerala & Ors., (2009) 2 SCC 479).

15. Select list cannot be treated as a reservoir for the purpose of appointments, that vacancy can be filled up taking the names from that list as and when it is so required.

It is the settled legal proposition that no relief can be granted to the candidate if he approaches the Court after expiry of the Select List. If the selection process is over, select list has expired and appointments had been made, no relief can be granted by the Court at a belated stage. (Vide J.Ashok Kumar Vs. State of Andhra Pradesh & Ors., (1996) 3 SCC 225; State of Bihar & Ors. Vs. Md. Kalimuddin & Ors., AIR 1996 SC 1145; State of U.P. & Ors. Vs. Harish Chandra & Ors., AIR 1996 SC 2173; Sushma Suri Vs. Government of National Capital Territory of Delhi & Anr., (1999) 1 SCC 330; State of U.P. & Ors. Vs. Ram Swarup Saroj, (2000) 3 SCC 699; K. Thulaseedharan Vs. Kerala State Public Service Commission, Trivendrum & Ors., (2007) 6 SCC 190; Deepa Keyes -Vs.- Kerala State Electricity Board & Anr., (2007) 6 SCC 194; and Subha B. Nair & Ors. (supra).

16. The instant case is required to be examined in view of the aforesaid settled legal proposition. The Rules, 1985 provide for determining the number of vacancies and holding competitive examination ordinarily once in a year. Select list prepared so also valid for one year. In the instant case, 15 vacancies were advertised with a clear stipulation that number of vacancies may increase. The authorities had taken a decision to fill up 33 vacancies, thus, select list of 66 persons was prepared. It is also evident from the record that some more appointments had been made over and above the 33 determined vacancies. Thus, once the selection process in respect of number of vacancies so determined came to an end, it is no more open to offer appointment to persons from the unexhausted list. It is exclusive prerogative of the employer/State Administration to initiate the selection process for filling up vacancies occurred during a particular year. There may be vacancies available but for financial constraints, the State may not be in a position to initiate the selection process for making appointments. Bonafide decision taken by the appointing authority to leave certain vacancies unfilled, even after preparing the select list cannot be assailed. The Courts/Tribunals have no competence to issue direction to the State to initiate selection process to fill up the vacancies. A candidate only has a right to be considered for appointment, when the vacancies are advertised and selection process commences, if he possess the requisite eligibility.

17. As the appointments had been made as per the select list prepared in 1995 and selection process came to an end, there was no occasion for the Tribunal to entertain the Applications in 1997, 1998 and 1999 for the simple reason that once the number of vacancies determined are filled, the selection process came to an end, no further appointment could be made from 1995 panel. The purpose of making the list of double of the vacancies determined is to offer the appointment to the persons from the waiting list in case persons who are offered appointment do not join. But it does not give any vested right in favour of the candidates whose names appeared therein.

18. It appears from the Judgment of the Tribunal that Rule 11(1) of the Rules, 1985 did not provide originally to prepare the list double the number of determined vacancies and it was only for preparing the list containing the names equal to the number of vacancies advertised/determined. In such a fact-situation, the select list could have been prepared only containing 33 names i.e. equivalent to the number of vacancies determined. In such a fact-situation, selection process would come to an end automatically whenever 33 candidates are appointed. However, if the appellant had prepared a list double the number of vacancies determined, that would not create any vested right in favour of the respondents. Thus, Tribunal committed grave error issuing direction to offer appointments to all the left over candidates.

19. The Tribunal held as under :- "In this case by preparing the panel far exceeding the number of vacancies, the Rules have been violated. For this lapse on the part fo the Collector, the candidates who have been subjected to a rigorous selection at more than one stage, should not be penalised.............The validity of the select list has expired long since. Both learned counsel for the applicant and the learned Government Advocate concede that no further recruitment has been conducted by the Collector, Sonepur. During this intervening period of four years vacancies must be arisen due to promotion, retirement, creation of new posts etc. in different offices." (Emphasis added)

20. The Tribunal, after recording the finding of fact that life of select list had expired, held that as the selection could not be held in subsequent years, thus, candidates whose names appeared in the panel should be offered appointment by granting relaxation of Rules. Issuance of such a direction is not permissible in law as no appointment can be made from the panel after expiry of the life of select list.

21. The High Court has concluded as under :- "Here the advertisement stipulated that there were vacancies and the vacancy position might go up. The select list prepared admittedly contained the names of 66 successful candidates. A cumulative reading of Rules 6 & 11(1) of the OMS Rules, 1985 vis-`-vis the select list which contained the names of 66 successful candidates leads to an irresistible conclusion that the number of vacancies at the time of publication of the select list was 66. the stand of the State before this Court is that under the impression that the select list should contain double the number of vacancies, a lsit of 66 candidates was published. But then, if the said statement is accepted, the vacancies that existed at the time of publication of the select list would have been 33. But it appears that the total number of candidates already appointed is 40.........The submission of the State that as one year had expired from the date of publication of the select list, the same had spent its validity cannot also be accepted. If vacancies were available, the candidates selected but illegally not sponsored for appointment should not suffer."

In view of the above, the High Court directed to offer the appointment to the persons whose names appeared in the panel and had approached the Tribunal.

22. The aforesaid view taken by the High Court cannot be held to be in consonance with law. More so, if the State has committed an error in preparing the merit list containing the names of candidates double the number of vacancies determined, that would not mean that select list has become immaterial and all those persons whose names appeared in the list would be offered appointment even after expiry of the life of select list.

23. In view of the above, the Judgment and order impugned hereinabove cannot be sustained in the eyes of law. The appeal is allowed. The Judgments and orders of the Tribunal dated 7.4.2000 and the High Court dated 26.10.2005 are set aside. No order as to costs.

MANOHAR LAL (D) BY LRS. Versus UGRASEN (D) BY LRS. & ORS.

Land Acquisition Act, 1894 - U.P. Urban Planning and Development Act, 1973, s. 41 - Allotment of land - Lands owned and possessed by predecessor-in-interest of appellant and respondent were acquired under the provisions of the Land Acquisition Act, 1894 - Government of Uttar Pradesh framed Land Policy to the effect that where a big chunk of land belonging to one person is acquired for planned development, except the land covered by roads, he shall be entitled to the extent of 40% of his total acquired land in a residential area after development in lieu of compensation - Appellant and respondent claimed that they had made applications to claim the benefit under the said policy within time - Land was allotted to appellant per the direction of the Chief Minister of Uttar Pradesh - Respondent filed writ petition thereagainst - Meanwhile, the land allotted to appellant was changed - Appellant filed Writ Petition wherein HC restrained the authorities from making allotment to anyone else from the land allotted to him - In spite of the said interim order in force, the State Government directed Ghaziabad Development Authority (GDA) to make the allotment of land in favour of respondent and thus, in compliance of the same, GDA issued letter of allotment in his favour - Respondent refused to take those plots - Some other land was allotted to appellant - Writ petition filed before HC was allowed quashing the allotment of land made in favour of appellant and further directed to make the allotment of land in favour of the respondent - Hence, present appeals - (A) Whether the State Government, a Revisional Authority under the Statute, could take upon itself the task of a lower statutory authority? - Held, no higher authority in the hierarchy or an appellate or revisional authority can exercise the power of the statutory authority nor the superior authority can mortgage its wisdom and direct the statutory authority to act in a particular manner - If the appellate or revisional Authority takes upon itself the task of the statutory authority and passes an order, it remains unenforceable for the reason that it cannot be termed to be an order passed under the Act - Further, scheme of the Act makes it clear that if a person is aggrieved by an order of the authority, he can prefer an appeal before the Appellate Authority i.e. Divisional Commissioner and the person aggrieved of that order may file Revision Application before the State Government - However, the State Government cannot pass an order without giving opportunity of hearing to the person, who may be adversely affected - In the instant case, it is the revisional authority which has issued direction to GDA to make allotment in favour of both the parties - Orders had been passed without hearing the other party - HC erred in holding that s. 41(1) of the Act empowers the State Government to deal with the application of an individual - State Government, being the revisional authority, could not entertain directly the applications by the said applicants - Thus, orders passed by the State Government stood vitiated - (B) Whether the order passed or action taken by a statutory authority in contravention of the interim order of the Court enforceable? - Held, any order passed by any authority in spite of the knowledge of the interim order of the court is of no consequence as it remains a nullity - In the present case, interim order passed by the HC in favour of appellant was in force and it restrained the Authorities to make allotment of the land in dispute in favour of anyone else - State Government as well as the GDA remained fully alive of the factum of subsistence of the said interim order - Order passed by the State Government in contravention of the interim order, remains unenforceable and inexecutable - (C) Whether Court can grant relief which had not been asked for? - Held, Court cannot grant a relief which has not been specifically prayed by the parties - Appeals disposed of.

Supreme Court of India

Civil Appeal No. 973 of 2007

Judge(s): Dr. B.S. CHAUHAN , SWATANTER KUMAR

Date of Judgment: 03 June, 2010

MANOHAR LAL (D) BY LRS. Versus UGRASEN (D) BY LRS. & ORS.


JUDGMENT

1. Both these appeals have been preferred by the appellants being aggrieved of the judgment and order of the Allahabad High Court dated 22nd July, 2003 passed in C.M.W.P. No.6644 of 1989 by which the High Court has allowed the Writ Petition filed by respondent No.1-Ugrasen quashing the allotment of land made in favour of appellant-Manohar Lal and further directed to make the allotment of land in favour of the said respondent-Ugrasen.

2. In these appeals, three substantial questions of law for consideration of this Court are involved, they are, namely: (a) As to whether the State Government - a Revisional Authority under the Statute, could take upon itself the task of a lower statutory authority?; (b) Whether the order passed or action taken by a statutory authority in contravention of the interim order of the Court is enforceable?; and (c) Whether Court can grant relief which had not been asked for?

3. Facts and circumstances giving rise to these appeals are that lands owned and possessed by predecessor-in-interest of private appellant Manohar Lal and respondent Ugrasen were acquired under the provisions of the Land Acquisition Act, 1894 (hereinafter referred to as the `Act'). Notification under Section 4 of the Act was issued on 13.08.1962 covering about 32 acres of land in the Revenue Estates of Kaila Pargana Loni Dist. Meerut (now Ghaziabad). Declaration under Section 6 of the Act in respect of the said land was made on 24.05.1965 along with Notification under Section 17(1) invoking the urgency clause. Possession of the land except one acre was taken on 13.07.1965 and award under Section 11 of the Act was made on 11.05.1970.

The Government of Uttar Pradesh had framed Land Policy dated 30/31.07.1963 to the effect that where a big chunk of land belonging to one person is acquired for planned development, except the land covered by roads, he shall be entitled to the extent of 40% of his total acquired land in a residential area after development in lieu of compensation. The High-Powered Committee dealing with the issue laid down that applications for that purpose be filed within a period of one month from the date of taking the possession of the land which was subsequently changed to within one month from the date of completion of acquisition proceedings.

4. Both the private parties, i.e. Manohar Lal and Ugrasen claimed that they had made applications to claim the benefit under the said policy within time. Shri Ugrasen claimed that he had submitted the application on 31.12.1966 but no action was taken on the said application. Therefore, he filed another application on 7.9.1971. Manohar Lal-appellant claimed to have filed application for the said purpose on 22.6.1969 and was allotted land bearing plot Nos. 5, 7 to 16 and 25 to 33 in Sector 3N vide order dated 27.12.1979 as per the direction of the Chief Minister of Uttar Pradesh. Shri Ugrasen filed Writ Petition No. 1932 of 1980 before Allahabad High Court challenging the said order dated 27.12.1979. Subsequently, vide order dated 7.3.1980, the land allotted to Manohar Lal was changed to Plot Nos. 25 to 33. At the time of consideration of application of Ugrasen by the State Government, the Ghaziabad Development Authority (hereinafter called GDA) vide letter dated 18.3.1980 pointed out that submission of application by Shri Ugrasen was surrounded by suspicious circumstances as it was the last entry made on 31.12.1966 and signature of the receiving clerk had been made by a person who joined service only in 1979. In the meanwhile, Shri Manohar Lal filed Writ Petition No. 4159 of 1980 and the High Court restrained the authorities from making allotment to anyone else from the land allotted to him as per letter dated 7.3.1980.

5. In spite of the said interim order in force, the State Government vide order dated 12.12.1980 directed GDA to make the allotment of land in favour of Shri Ugrasen and thus, in compliance of the same, GDA issued letter of allotment dated 22.12.1980 in his favour. Shri Ugrasen submitted letter dated 1.1.1981 to GDA to give an alternative land as the land covered by Plot Nos. 5 to 16 had been subject matter of the interim order of the High Court in a writ petition filed by Shri Manohar Lal.

6. Shri Ugrasen withdrew his Writ Petition No.1932 of 1980 on 6.3.1981 and deposited the compensation amount, i.e. Rs.32,010.60 on 3.3.1981. GDA allotted the land to Shri Ugrasen in Plot Nos. 36, 38, 39, 44, 46 and 47 vide order dated 02.01.1985, though it was also the land in dispute i.e. covered by the interim order passed by the High Court. Shri Ugrasen refused to take those plots as is evident from letter dated 7.1.1985 as certain encroachment had been made upon the said lands. GDA, vide letter dated 27.3.1989, allotted Plot Nos. 5, 7 to 16 to Shri Manohar Lal. Thus, being aggrieved, Shri Ugrasen filed Writ Petition No. 6644 of 1989 before the High Court for quashing of the said allotment in favour of Shri Manohar Lal.

7. Parties exchanged the affidavits and after hearing the parties and considering the material on record, the High Court allowed the said Writ Petition vide judgment and order dated 22nd July, 2003. Hence, these appeals.

8. Shri P.S. Patwalia, learned Senior counsel appearing for the appellant-Manohar Lal and Shri Vijay Hansaria, learned Senior counsel appearing for GDA have contended that Shri Ugrasen had never filed application for allotment in time. There had been manipulation in registration of the said application and it has been surrounded with suspicious circumstances. The application of Shri Ugrasen had been considered directly by the State Government-the revisional authority, though the State Government could not take the task of GDA upon itself. Land of Shri Ugrasen had been acquired for roads, thus, as per the Land Policy he was not entitled for any benefit of the same. Shri Ugrasen in his writ petition had asked only for quashing the allotment in favour of Manohar Lal and there was no prayer that the said land be allotted to him. Therefore, while issuing a direction for making the allotment in favour of Ugrasen, the High Court has exceeded its jurisdiction. Thus, appeals deserve to be allowed.

9. On the other hand, Shri Debal Banerji, learned Senior counsel appearing for the respondent-Ugrasen and Shri Pramod Swarup, learned Senior counsel appearing for the State of U.P. have vehemently opposed the appeals contending that once a decision has been taken as per the entitlement of the respondent-Ugrasen and the High Court has examined each and every fact, question of re- appreciation of evidence etc. is not permissible in exercise of the discretionary jurisdiction by this Court. Manohar Lal had also been allotted the land by the Chief Minister and not by GDA, thus no fault can be found with allotment in favour of Shri Ugrasen. Appeals lack merit and are liable to be dismissed.

10. We have considered the rival submissions made by learned counsel for the parties and perused the records.

11. In Rakesh Ranjan Verma & Ors. Vs. State of Bihar & Ors., AIR 1992 SC 1348, the question arose as to whether the State Government, in exercise of its statutory powers could issue any direction to the Electricity Board in respect of appointment of its officers and employees. After examining the statutory provisions, the Court came to the conclusion that the State Government could only take the policy decisions as how the Board will carry out its functions under the Act. So far as the directions issued in respect of appointment of its officers was concerned, it fell within the exclusive domain of the Board and the State Government had no competence to issue any such direction. The said judgment has been approved and followed by this Court in U.P. State Electricity Board Vs. Ram Autar and Anr. (1996) 8 SCC 506.

12. In Bangalore Development Authority and Ors. Vs. R. Hanumaiah and Ors. (2005) 12 SCC 508, this Court held that the power of the Government under Section 65 of the Bangalore Development Authority Act, 1976 was not unrestricted and the directions which could be issued were those which were to carry out the objective of the Act and not those which are contrary to the Act and further held that the directions issued by the Chief Minister to release the lands were destructive of the purposes of the Act and the purposes for which the BDA was created.

13. In Bangalore Medical Trust Vs. B.S. Muddappa & Ors. AIR 1991 SC 1902, this Court considered the provisions of a similar Act, namely, Bangalore Development Authority Act, 1976 containing a similar provision and held that Government was competent only to give such directions to the authority as were in its opinion necessary or expedient and for carrying out the purposes of the Act. The Government could not have issued any other direction for the reason that Government had not been conferred upon unfettered powers in this regard. The object of the direction must be only to carry out the object of the Act and only such directions as were reasonably necessary or expedient for carrying out the object of the enactment were contemplated under the Act. Any other direction not covered by such powers was illegal.

14. In Poonam Verma & Ors. Vs. Delhi Development Authority, AIR 2008 SC 870, a similar view has been re-iterated by this Court dealing with the provisions of Delhi Development Authority Act, 1957. In the said case, the Central Government had issued a direction to make allotment of flat out of turn. The Court held as under: "......Section 41 of the Act, only envisages that the respondent would carry out such directions that may be issued by the Central Government from time to time for the efficient administration of the Act. The same does not take within its fold an order which can be passed by the Central Government in the matter of allotment of flats by the Authority. Section 41 speaks about policy decision. Any direction issued must have a nexus with the efficient administration of the Act. It has nothing to do with carrying out of the plans of the authority in respect of a particular scheme..........Evidently, the Central Government had no say in the matter either on its own or under the Act. In terms of the brochure, Section 41 of the Act does not clothe any jurisdiction upon the Central Government to issue such a direction."

15. In State of U.P. Vs. Neeraj Awasthi and Ors. (2006) 1 SCC 667, this Court held as follows in context of Government directions: "36. Such a decision on the part of the State Government must be taken in terms of the constitutional scheme, i.e., upon compliance of the requirement of Article 162 read with Article 166 of the Constitution of India. In the instant case, the directions were purported to have been issued by an officer of the State. Such directions were not shown to have been issued pursuant to any decision taken by a competent authority in terms of the Rules of Executive Business of the State framed under Article 166 of the Constitution of India."

16. In The Purtabpore Co., Ltd. Vs. Cane Commissioner of Bihar and Ors. AIR 1970 SC 1896, this Court has observed : "The power exercisable by the Cane Commissioner under Clause 6(1) is a statutory power. He alone could have exercised that power. While exercising that power he cannot abdicate his responsibility in favour of anyone - not even in favour of the State Government or the Chief Minister. It was not proper for the Chief Minister to have interfered with the functions of the Cane Commissioner. In this case what has happened is that the power of the Cane Commissioner has been exercised by the Chief Minister, an authority not recognised by Clause (6) read with Clause (11) but the responsibility for making those orders was asked to be taken by the Cane Commissioner. The executive officers entrusted with statutory discretions may in some cases be obliged to take into account considerations of public policy and in some context the policy of a Minister or the Government as a whole when it is a relevant factor in weighing the policy but this will not absolve them from their duty to exercise their personal judgment in individual cases unless explicit statutory provision has been made for them to be given binding instructions by a superior."

17. In Chandrika Jha Vs. State of Bihar and Ors. AIR 1984 SC 322, this Court while dealing with the provisions of Bihar and Orissa Co-operative Societies Act, 1935, held as under: "The action of the then Chief Minister cannot also be supported by the terms of Section 65A of the Act which essentially confers revisional power on the State Government. There was no proceeding pending before the Registrar in relation to any of the matters specified in Section 65A of the Act nor had the Registrar passed any order in respect thereto. In the absence of any such proceeding or such order, there was no occasion for the State Government to invoke its powers under Section 65A of the Act. In our opinion, the State Government cannot for itself exercise the statutory functions of the Registrar under the Act or the Rules."

18. In Anirudhsinhji Karansinghji Jadeja & Anr. Vs. State of Gujarat AIR 1995 SC 2390, it was observed : "This is a case of power conferred upon one authority being really exercised by another. If a statutory authority has been vested with jurisdiction, he has to exercise it according to its own discretion. If the discretion is exercised under the direction or in compliance with some higher authority's instruction, then it will be a case of failure to exercise discretion altogether." (Emphasis added)

19. In K.K. Bhalla Vs. State of M.P. & Ors. AIR 2006 SC 898, this Court has de-lineated the functions of the State Government and the Development Authority, observing that : "59. Both the State and the JDA have been assigned specific functions under the statute. The JDA was constituted for a specific purpose. It could not take action contrary to the scheme framed by it nor take any action which could defeat such purpose. The State could not have interfered with the day-to-day functioning of a statutory authority. Section 72 of the 1973 Act authorizes the State to exercise superintendence and control over the acts and proceedings of the officers appointed under Section 3 and the authorities constituted under the Act but thereby the State cannot usurp the jurisdiction of the Board itself. The Act does not contemplate any independent function by the State except as specifically provided therein.... the State in exercise of its executive power could not have directed that lands meant for use for commercial purposes may be used for industrial purposes..... the power of the State Government to issue direction to the officers appended under Section 3 and the authorities constituted under the Act is confined only to matters of policy and not any other. Such matters of policy yet again must be in relation to discharge of duties by the officers of the authority and not in derogation thereof.... The direction of the Chief Minister being de'hors the provisions of the Act is void and of no effect."

20. In Indore Municipality Vs. Niyamatulla (Dead through L.Rs.) AIR 1971 SC 97, this Court considered a case of dismissal of an employee by an authority other than the authority competent to pass such an order i.e. the Municipal Commissioner, the order was held to be without jurisdiction and thus could be termed to have been passed under the relevant Act. This Court held that "to such a case the Statute under which action was purported to be taken could afford no protection".

21. In Tarlochan Dev Sharma Vs. State of Punjab & Ors. (2001) 6 SCC 260, this Court, after placing reliance upon a large number of its earlier judgments, observed as under: "In the system of Indian democratic governance as contemplated by the Constitution, senior officers occupying key positions such as Secretaries are not supposed to mortgage their own discretion, volition and decision-making authority and be prepared to give way or being pushed back or pressed ahead at the behest of politicians for carrying out commands having no sanctity in law. The Conduct Rules of Central Government Services command the civil servants to maintain at all times absolute integrity and devotion to duty and do nothing which is unbecoming of a government servant. No government servant shall in the performance of his official duties, or in the exercise of power conferred on him, act otherwise than in his best judgment except when he is acting under the direction of his official superior." (Emphasis added)

22. Therefore, the law on the question can be summarised to the effect that no higher authority in the hierarchy or an appellate or revisional authority can exercise the power of the statutory authority nor the superior authority can mortgage its wisdom and direct the statutory authority to act in a particular manner. If the appellate or revisional Authority takes upon itself the task of the statutory authority and passes an order, it remains unenforceable for the reason that it cannot be termed to be an order passed under the Act.

23. In Mulraj Vs. Murti Raghunathji Maharaj, AIR 1967 SC 1386, this Court considered the effect of action taken subsequent to passing of an interim order in its disobedience and held that any action taken in disobedience of the order passed by the Court would be illegal. Subsequent action would be a nullity.

24. In Surjit Singh Vs. Harbans Singh, AIR 1996 SC 135, this Court while dealing with the similar issue held as under: "In defiance of the restraint order, the alienation/assignment was made. If we were to let it go as such, it would defeat the ends of justice and the prevalent public policy. When the Court intends a particular state of affairs to exist while it is in seisin of a lis, that state of affairs is not only required to be maintained, but it is presumed to exist till the Court orders otherwise. The Court, in these circumstances has the duty, as also the right, to treat the alienation/assignment as having not taken place at all for its purposes."

25. In All Bengal Excise Licensees Association Vs. Raghabendra Singh & Ors, AIR 2007 SC 1386, this court held as under: "A party to the litigation cannot be allowed to take an unfair advantage by committing breach of an interim order and escape the consequences thereof..... the wrong perpetrated by the respondents in utter disregard of the order of the High Court should not be permitted to hold good."

26. In Delhi Development Authority Vs. Skipper Construction Co. (P) Ltd. & Anr. AIR 1996 SC 2005, this court after making reference to many of the earlier judgments held: "On principle that those who defy a prohibition ought not to be able to claim that the fruits of their defiance are good, and not tainted by the illegality that produced them."

27. In Gurunath Manohar Pavaskar Vs. Nagesh Siddappa Navalgund, AIR 2008 SC 901, this Court while dealing with the similar issues held that even a Court in exercise of its inherent jurisdiction under Section 151 of the Code of Civil Procedure, 1908, in the event of coming to the conclusion that a breach to an order of restraint had taken place, may bring back the parties to the same position as if the order of injunction has not been violated.

28. In view of the above, it is evident that any order passed by any authority in spite of the knowledge of the interim order of the court is of no consequence as it remains a nullity.

29. In Messrs. Trojan & Co. Vs. RM.N.N. Nagappa Chettiar AIR 1953 SC 235, this Court considered the issue as to whether relief not asked for by a party could be granted and that too without having proper pleadings. The Court held as under: "It is well settled that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. Without an amendment of the plaint, the Court was not entitled to grant the relief not asked for and no prayer was ever made to amend the plaint so as to incorporate in it an alternative case."

30. A similar view has been re-iterated by this Court in Krishna Priya Ganguly etc.etc. Vs. University of Lucknow & Ors. etc. AIR 1984 SC 186; and Om Prakash & Ors. Vs. Ram Kumar & Ors., AIR 1991 SC 409, observing that a party cannot be granted a relief which is not claimed.

31. Dealing with the same issue, this Court in Bharat Amratlal Kothari Vs. Dosukhan Samadkhan Sindhi & Ors., AIR 2010 SC 475 held: "Though the Court has very wide discretion in granting relief, the court, however, cannot, ignoring and keeping aside the norms and principles governing grant of relief, grant a relief not even prayed for by the petitioner."

32. In Fertilizer Corporation of India Ltd. & Anr. Vs. Sarat Chandra Rath & Ors., AIR 1996 SC 2744, this Court held that "the High Court ought not to have granted reliefs to the respondents which they had not even prayed for."

33. In view of the above, law on the issue can be summarised that the Court cannot grant a relief which has not been specifically prayed by the parties.

34. The instant case requires to be examined in the light of the aforesaid certain legal propositions. Section 41 of the U.P. Urban Planning and Development Act, 1973 reads as under: "41. Control by State Government-(1) The Authority, the Chairman or the Vice-Chairman shall carry out such directions as may be issued to it from time to time by the State Government for the efficient administration of this Act. (2) .......................................... (3) The State Government may, at any time, either on its own motion or on application made to it in this behalf, call for the records of any case disposed of or order passed by the authority or Chairman for the purpose of satisfying itself as to the legality or propriety of any order passed or direction issued and may pass such order or issue such direction in relation thereto as it may think fit: Provided that the State Government shall not pass an order prejudicial to any person without affording such person a reasonable opportunity of being heard. (4) ......................................"

35. Clause (1) thereof empowers the State Government to issue general directions which are necessary to properly enforce the provisions of the Act. Clause (3) thereof make it crystal clear that the State Government is a revisional authority. Therefore, the scheme of the Act makes it clear that if a person is aggrieved by an order of the authority, he can prefer an appeal before the Appellate Authority i.e. Divisional Commissioner and the person aggrieved of that order may file Revision Application before the State Government. However, the State Government cannot pass an order without giving opportunity of hearing to the person, who may be adversely affected.

36. In the instant case, it is the revisional authority which has issued direction to GDA to make allotment in favour of both the parties. Orders had been passed without hearing the other party. The authority, i.e. GDA did not have the opportunity to examine the case of either of the said parties. The High Court erred in holding that Clause (1) of Section 41 empowers the State Government to deal with the application of an individual. The State Government can take only policy decisions as to how the statutory provisions would be enforced but cannot deal with an individual application. Revisional authority can exercise its jurisdiction provided there is an order passed by the lower authority under the Act as it can examine only legality or propriety of the order passed or direction issued by the authority therein.

37. In view thereof, we are of the considered opinion that there was no occasion for the State Government to entertain the applications of the said parties for allotment of land directly and issue directions to GDA for allotment of land in their favour.

38. Admittedly, the interim order passed by the High Court in favour of Shri Manohar Lal in Writ Petition No. 4159 of 1980 was in force and it restrained the Authorities to make allotment of the land in dispute in favour of anyone else. Indisputably, the State Government as well as the GDA remained fully alive of the factum of subsistence of the said interim order as is evident from the correspondence between them. In view of the law referred to hereinabove, order passed by the State Government in contravention of the interim order, remains unenforceable and inexecutable. More so, in the writ petition filed by Shri Ugrasen relief sought was limited only to quash the allotment made in favour of Shri Manohar Lal. No relief was sought for making the allotment in favour of the writ petitioner/Shri Ugrasen. However, the High Court vide impugned judgment and order has issued direction to make the allotment in his favour. Thus, we are of the view that issuance of such a direction was not permissible in law. Even otherwise as Shri Ugrasen's land had been acquired for roads, he could not make application for taking benefit of the Land Policy, particularly, when the Land Policy was not declared to be invalid or violative of equality clause enshrined in Article 14 of the Constitution.

39. The High Court failed to consider objections raised on behalf of GDA in its letter dated 19.4.1980 to the State Government pointing out as follows: (a) Application of Ugrasen is entered on 31.12.1966 as the last entry in Postal Receipt register. (b) Entry is at Sl. 15498. (c) Entry is in different ink. (d) True copy of application now submitted bears the date 13.12.1966. (e) There is no signature on the cyclostyled copy. (f) Application was made in 1971 and was rejected in 1977 by Shri Watal. Decision not challenged. Ugrasen kept quiet till 1980. (g) Clerk Mr. Jai Prakash was not working before 1979.

40. It is settled legal proposition that burden lies on the person, who alleges/avers/pleads for existence of a fact. Sh. Ugrasen was95 under an obligation to establish the fact of submission of the application in time. Entry in respect of his application has been made in Postal Receipt Register. As said application was sent by post, Sh. Ugrasen could explain as to whether the application was sent by Registered Post/Ordinary Post or under Postal Certificate and as to whether he could produce the receipt, if any, for the same. In such a fact-situation, the application filed by Shri Ugrasen could not have been entertained at all, even if he was entitled for the benefit of the Land Policy.

41. The High Court committed an error observing that if the State Government had allowed the application filed by Ugrasen it was implicit that delay, if any, in making the claim stood95 condoned. Such an observation is not in consonance with law for the reason that if there is a delay in filing application, the question would arise as to whether the authority has a right to condone the delay. Even if, the delay can be condoned, the authority had to examine as to whether there was sufficient cause preventing the applicant to approach the authority in time. But, once the delay has been considered without application of mind, in a fact- situation like in the instant case, the question of deemed condonation would not arise. More so, the High Court could not examine the question of fact as to whether the application was made within time or not, particularly, in view of the fact that the authority had been making the allotment though application had not been made at all in time and it was only manipulation of the record of the authority with the collusion of its staff.

42. In fact, such exercise by the State amounts to colourable exercise of power. In State of Punjab & Anr. Vs. Gurdial Singh & Ors. AIR 1980 SC 319, this Court dealing with such an issue observed as under: "Legal malice is gibberish unless juristic clarity keeps it separate from the popular concept of personal vice. Pithily put, bad faith which invalidates the exercise of power - sometimes called colourable exercise or fraud on power and oftentimes overlaps motives, passions and satisfaction - is the attainment of ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal. If the use of the power is for the fulfilment of a legitimate object the actuation or catalysation by malice is not legicidal. The action is bad where the true object is to reach an end different from the one for which the power is entrusted, goaded by extraneous considerations, good or bad, but irrelevant to the entrustment. When the custodian of power is influenced in its exercise by considerations outside those for promotion of which the power is vested the court calls it a colourable exercise and is undeceived by illusion."

43. The State Government, being the revisional authority, could not entertain directly the applications by the said applicants, namely, Sh.Ugrasen and Sh. Manohar Lal. The action of the State Government smacks of arbitrariness and is nothing but abuse of power as the State Government deprived GDA to exercise its power under the Act, and deprived the aggrieved party to file appeal against the order of allotment. Thus, orders passed by the State Government stood vitiated. More so, it was a clear cut case of colourable exercise of power.

44. So far as the case of allotment in favour of Manohar Lal is concerned in more than one respect, it is by no means better than the case of Ugrasen as the initial allotment had been made by GDA in his favour consequent to the directions of the Chief Minister of Uttar Pradesh who had no competence to deal with the subject under the Statute and he has already been put in possession of a part of allotted land in commercial area, contrary to the Land Policy.

45. There are claims and counter claims regarding the dates of Section 6 declaration; taking of possession of land; and of making Awards so far as the land of Manohar Lal is concerned. As per the affidavit filed by the Vice-Chairman, GDA, Section 6 declaration was made on 24.5.1965 invoking the urgency clause under section 17(1); possession was taken on 13.7.1965; and Award was made on 11.5.1970. Manohar Lal preferred writ petition no.4159/1980 before the Allahabad High Court stating that Section 6 declaration in respect of his land was made on 30.1.1969, possession was taken on 29.5.1969 and Award was made on 11.6.1971. None of the parties considered it proper to place the authentic documents before the Court so that the real facts be determined. In such a fact situation, we are not in a position to decide as to whether Manohar Lal's application was filed in time as he had claimed in the said writ petition that he filed the First Application on 22.6.1969. However, one thing is clearly evident from the affidavit filed by Vice Chairman, GDA that the land allotted to both of these parties has been part of commercial area and not of residential area. In view thereof, any allotment made in favour of Manohar Lal so far, had been illegal as the application could not have been entertained by the Chief Minister and further appellant could not get allotment in commercial area. The Land Policy provided only for allotment of land in residential area.

46. The fact of illegal allotment of land in commercial area has been brought to the notice of the Court first time vide affidavit of the Vice-Chairman, GDA dated 27.5.2010. Thus, it is crystal clear that such facts had not been brought on record before the High Court by GDA at any stage in any of the writ petitions nor it had been pointed out to the State Government when applications of both these parties had been entertained directly by the Chief Minister and the State Government. Only explanation furnished by the Vice- Chairman, GDA, in his affidavit is that due to inadvertence it escaped the notice of GDA that the plots had been categorized as commercial in the Master Plan and could not be allotted in favour of any applicant. Even today, the said plots continue to be in commercial area and not in residential area.

47. The present appellants had also not disclosed that land allotted to them falls in commercial area. When a person approaches a Court of Equity in exercise of its extraordinary jurisdiction under Article 226/227 of the Constitution, he should approach the Court not only with clean hands but also with clean mind, clean heart and clean objective. "Equally, the judicial process should never become an instrument of appreciation or abuse or a means in the process of the Court to subvert justice." Who seeks equity must do equity. The legal maxim "Jure naturaw aequum est neminum cum alterius detrimento et injuria fieri locupletiorem", means that it is a law of nature that one should not be enriched by the loss or injury to another. (vide The Ramjas Foundation & Ors. Vs. Union of India & Ors. AIR 1993 SC 852; K.P. Srinivas Vs. R.M. Premchand & ors. (1994) 6 SCC 620 and Nooruddin Vs. (Dr.) K.L. Anand (1995) 1 SCC 242).

48. Similarly, in Ramniklal N. Bhutta & Anr. Vs. State of Maharashtra & Ors. AIR 1997 SC 1236, this Court observed as under:- "The power under Article 226 is discretionary. It will be exercised only in furtherance of interest of justice and not merely on the making out of a legal point.....the interest of justice and the public interest coalesce. They are very often one and the same. ..... The Courts have to weigh the public interest vis-`-vis the private interest while exercising....any of their discretionary powers (Emphasis added).

49. In M/s Tilokchand Motichand & Ors. Vs. H.B. Munshi & Anr. AIR 1970 SC 898; State of Haryana Vs. Karnal Distillery, AIR 1977 SC 781; and Sabia Khan & Ors. Vs. State of U.P. & Ors. AIR 1999 SC 2284, this Court held that filing totally misconceived petition amounts to abuse of the process of the Court. Such a litigant is not required to be dealt with lightly, as petition containing misleading and inaccurate statement, if filed, to achieve an ulterior purpose amounts to abuse of the process of the Court. A litigant is bound to make "full and true disclosure of facts."

50. In Abdul Rahman Vs. Prasony Bai & Anr. AIR 2003 SC 718; S.J.S. Business Enterprises (P) Ltd. Vs. State of Bihar & Ors. (2004) 7 SCC 166; and Oswal Fats & Oils Ltd. Vs. Addl. Commissioner (Admn), Bareily Division, Bareily & Ors. JT 2010 (3) SC 510, this Court held that whenever the Court comes to the conclusion that the process of the Court is being abused, the Court would be justified in refusing to proceed further and refuse relief to the party. This rule has been evolved out of need of the Courts to deter a litigant from abusing the process of the Court by deceiving it.

51. In view of the above, we are of the considered opinion that Shri Manohar Lal did not approach the Court with discloser of true facts, and particularly, that he had been allotted the land in the commercial area by GDA on the instruction of the Chief Minister of Uttar Pradesh.

52. It is a fit case for ordering enquiry or initiating proceedings for committing criminal contempt of the Court as the parties succeeded in misleading the Court by not disclosing the true facts. However, we are not inclined to waste court's time further in these cases. Our experience has been that the so-called administration is not likely to wake-up from its deep slumber and is never interested to redeem the limping society from such hapless situations. We further apprehend that our pious hope that administration may muster the courage one day to initiate disciplinary/criminal proceedings against such applicants/erring officers/employees of the authority, may not come true. However, we leave the course open for the State Government and GDA to take decision in regard to these issues and as to whether GDA wants to recover the possession of the land already allotted to these applicants in commercial area contrary to the Land Policy or value thereof adjusting the amount of compensation deposited by them, if any.

53. In view of the above, Civil Appeal No. 974 of 2007 filed by GDA is allowed. The Judgment and order of the High Court dated 22.7.2003 passed in Writ Petition No. 6644 of 1989 is hereby set aside. Civil Appeal No. 973 of 2007 filed by Manohar Lal is dismissed. No costs.