Wednesday, September 22, 2010

SYED ASHWAQ AHMED Vs. JT. SECRETARY & CHIEF PASSPORT OFR. & ANR.

Constitution of India, 1950 — Petitioner claims to have been working as a travel agent, without being a member of TAAI, and has been acting on behalf of various clients since 1997 for submitting applications for obtaining passports on their behalf. It is also the Petitioner’s case that he was issued with a Travel Agent Code number by the Passport Officer, Government of India, in the Ministry of External Affairs, the Respondent No.2 herein, to whom the applications would be submitted and after the applications had been accepted, the same would be processed by the said Officer upon payment of the prescribed service charge. According to the Petitioner, guidelines were issued from time to time, but the said Respondent withdrew the entire system of recommending travel agents to deal with passport work and issued instructions that in respect of travel agents who were present before the passport office earlier, even if they were not members of TAAI, they would be permitted to continue to do the work which they had been performing. In order to avail of the said benefit, the travel agents, who were similarly placed as the Petitioner, filed applications for permission to continue the work which they had been performing. However, since the said applications were rejected by the authorities, the Petitioner was compelled to file this Special Leave Petition. -Once the policy of recognizing travel agents for the purpose of submitting passport applications and receiving the same on behalf of a client, was discontinued after July, 1992, the Petitioner, who had begun his travel agency after the said date, was not entitled to the benefit of the fresh guidelines which came to be issued on 18th July, 2000, by providing a one-time concession for all travel agents who were working prior to 1992, even though they were not members of TAAI — held no interference with the impugned orders of the High Court — petition dismissed.

Supreme Court of India

CIVIL APPEAL NO. 22936 OF 2008
Hon'ble Judge(s): Altamas Kabir & A.K. Patnaik
Date of Judgment: 9 September, 2010

SYED ASHWAQ AHMED Vs. JT. SECRETARY & CHIEF PASSPORT OFR. & ANR.


O R D E R

ALTAMAS KABIR, J.

1. This Special Leave Petition is directed against the judgment and order dated 23rd June, 2008, passed by the Karnataka High Court in W.P. No.14078 of 2007, dismissing the Petitioner's writ petition seeking a Mandamus upon the Respondents to allow him to perform passport work as a travel agent, though he was not a member of the Travel Agents' Association of India (TAAI).

2. The Petitioner claims to have been working as a travel agent, without being a member of TAAI, and has been acting on behalf of various clients since 1997 for submitting applications for obtaining passports on their behalf. It is also the Petitioner's case that he was issued with a Travel Agent Code number by the Passport Officer, Government of India, in the Ministry of External Affairs, the Respondent No.2 herein, to whom the applications would be submitted and after the applications had been accepted, the same would be processed by the said Officer upon payment of the prescribed service charge. According to the Petitioner, guidelines were issued from time to time, but the said Respondent withdrew the entire system of recommending travel agents to deal with passport work and issued instructions that in respect of travel agents who were present before the passport office earlier, even if they were not members of TAAI, they would be permitted to continue to do the work which they had been performing. In order to avail of the said benefit, the travel agents, who were similarly placed as the Petitioner, filed applications for permission to continue the work which they had been performing. However, since the said applications were rejected by the authorities, the Petitioner was compelled to file this Special Leave Petition.

3. On behalf of the Petitioner it was also contended that the aforesaid question had been considered by the Karnataka High Court and had been decided in Writ Petition No.40360 of 2004, and, ultimately, the impugned restrictions came to be quashed and all travel agents who were carrying on business earlier became entitled to continue to do the work and the endorsements dated 14th March, 2006, issued by the Respondent No.2 were quashed.

4. According to the Respondents, however, the system of recommending travel agents to carry on the work of applying for and receiving passports on behalf of their clients was dispensed with in July, 1992. Although, the said de-recognition of travel agents in July, 1992, was challenged in various courts, including this Court, the scheme was ultimately upheld and the Ministry of External Affairs, Government of India, gave the benefit thereof to the travel agents who were not members of TAAI, provided they were recognized as travel agents before July, 1992, when the recognition of travel agents was dispensed with. Since the petitioner had started operating as a travel agent only in 1997, after such derecognition, he was not entitled to the benefit of the Scheme promulgated on 18th July, 2000.

5. The matter was considered in some detail by the High Court which took the view that travel agents, who were not members of TAAI, had been recognized by the Department for the issuance of passports on behalf of their clients. Ultimately, all the matters which were filed before this Court were transferred to the various High Courts and fresh guidelines came to be issued on 18th July, 2000. As a one-time concession, agents who were working prior to 1992 were given the benefit of the scheme, even though they were not members of TAAI. The scheme was formulated on 18th July, 2000, and under the scheme travel agents who had been working from before 1992 continued to be recognized as travel agents, although, they were not members of TAAI. Based on the aforesaid reasoning, the High Court held that once the scheme came into operation and a one-time concession was made in respect of travel agents who were working from before 1992 but were not members of TAAI, the Petitioner who commenced business as a travel agent from 1997, was not entitled to the benefit of the scheme. The High Court dismissed the Petitioner's writ petition upon holding that since the Petitioner was not a member of TAAI and was not also recognized as a travel agent prior to 1992, he was not entitled to the benefit of the scheme promulgated on 18th July, 2000.

6. Mr. Manohar Lal Sharma, learned Advocate who appeared for the Petitioner, urged that since the Petitioner had been awarded a Code Number by the Ministry of External Affairs, Government of India, it must be deemed that he was an accredited agent, notwithstanding the fact that he was not a member of TAAI. Mr. Sharma submitted that pursuant to the decision taken by the Ministry which came into effect from the month of August, 2000, all travel agents who were then recognized by the passport office under the previous dispensation, would continue to be recognized even if they were not members of TAAI. However, no new non-TAAI recognized travel agent could be added to the earlier list in future. Mr. Sharma submitted that since the Petitioner was an accredited agent, the aforesaid provisions would govern the Petitioner as well, despite the fact that he was not a member of TAAI. He also submitted that when the scheme was promulgated and the Petitioner was already functioning as a travel agent, it would be highly arbitrary to prevent him from continuing to function as a travel agent in view of the new policy whereunder only those travel agents who were members of TAAI would be entitled to perform the work of submitting applications on behalf of Indian citizens applying for passports.

7. As indicated hereinbefore, the Respondents took the stand that when the entire system of recognizing travel agents to deal with passport work had been withdrawn in February, 1992, the Petitioner, who was not a member of the TAAI at that point of time, could not get the benefit of the scheme floated by the Respondent.

8. The controversy in this Special Leave Petition hinges on the question as to whether the Petitioner had been unjustly prevented from carrying on business as travel agent since he was not a member of TAAI and, therefore, not entitled to the benefit of the scheme promulgated on 18th July, 2000. The reasoning of the High Court that the Petitioner could not be recognized as a travel agent since he had started his business in 1997, long after the system had been withdrawn, is in keeping with the said scheme and does not require any interference. Once the policy of recognizing travel agents for the purpose of submitting passport applications and receiving the same on behalf of a client, was discontinued after July, 1992, the Petitioner, who had begun his travel agency after the said date, was not entitled to the benefit of the fresh guidelines which came to be issued on 18th July, 2000, by providing a one-time concession for all travel agents who were working prior to 1992, even though they were not members of TAAI.

9. The new policy adopted by the Government has not been questioned by the Petitioner, whose grievance is confined to his exclusion from the scheme which came into operation in August, 2000. We are not, however, inclined to accept the submissions made on the Petitioner's behalf since a decision had been taken by the Central Government to derecognize travel agents who were not members of TAAI, giving a one-time concession to those travel agents who were not members of TAAI but had been performing passport work for clients prior to 1992. The policy is neither irrational nor unreasonable and appears to have been made to streamline the system of applying for and receiving passports.

10. We, therefore, find no reason to interfere with the decision of the High Court and the Special Leave Petition is, accordingly, dismissed.

Smt. Rafeeqan (Dead) by Lr.Vs.Smt. Hussan Bano

Delhi Rent Control Act — Interpretation of Section 14D - Eviction suit,  Respondent, a widow, purchasing a tenanted premises - Thereafter filing suit for eviction of Appellant-tenant for  Personal requirement - Petition dismissed by Additional Rent Controller - In revision, High Court set aside the order and directed the Additional Rent Controller to decide the matter on merits- Appeal — this court while affirming the findings of the Rent Controller held that provision of Section 14-D is not applicable for eviction of the appellant since she is admittedly a pre-existing tenant on the premises prior to the purchase of the property by the husband of the respondent landlord. Impugned order of the High Court set aside — appeal allowed — no costs.

Supreme Court of India

CIVIL APPEAL NO. 2126 of 2004
Hon'ble Judge(s): G.S. Singhvi ; Asok Kumar Ganguly
Date of Judgment: 6 September, 2010

Smt. Rafeeqan (Dead) by Lr.Vs.Smt. Hussan Bano

O R D E R
GANGULY, J.

1. This appeal is directed against the judgment and order dated 27th May 2003 passed by the Delhi High Court in Civil Revision No.754 of 2002. By the impugned judgment and order, the High Court affirmed the order of the Additional Rent Controller dated 27th May, 2002 by which the Additional Rent Controller dismissed the application of the appellant for leave to defend in the eviction proceeding filed against her by the respondent under Section 14-D of the Delhi Rent Control Act (hereinafter, 'the said Act').

2. The material facts of the case are that the respondent, a widow, filed a petition under Section 14-D of the said Act to recover immediate possession of the premises of which the appellant is a tenant in one room, kitchen, bathroom, latrine and courtyard on the first floor of property No.4899-A Gali Maulvi Abdul Rahim, Bara Hindu Rao, Delhi at a rent of Rs.100/- per month and other charges.

3. Admittedly, the respondent purchased the property in question by a registered sale deed dated 31.10.1961 and the appellant was inducted as a tenant in the said property by the previous owner. In the eviction petition it was stated by the respondent-landlord that she and her family require the tenanted premises for her own residential purposes. When such eviction petition came before the Court of the Additional Rent Controller, Delhi the Court recorded that nobody appeared on behalf of the appellant in spite of notice in the newspaper and no leave application was filed. However, the Additional Rent Controller, Delhi by judgment and order dated 18.3.1999 dismissed the eviction petition filed by the respondent herein, inter alia, on the ground that the tenanted premises was let out by the previous owner from whom the respondent herein purchased the tenanted premises. It was not let out either by the respondent herein or by her husband or by any of her blood relations and the Additional Rent Controller held that Section 14B of the said Act does not apply.

4. Challenging the said order a revision petition was filed by the respondent herein. In such revision petition, the Delhi High Court vide order dated 11.9.2000 was pleased to set aside the order dated 18.3.1999 passed by the Additional Rent Controller, Delhi and the Delhi High Court was pleased to direct the Additional Rent Controller to decide the eviction petition on merits. The Delhi High Court was pleased to hold as follows:

'Admit.

The petitioner is aggrieved by an order dated 18th March, 1999 passed by the learned Additional Rent Controller, Delhi.

The petitioner was non-suited on the ground that the suit premises were not let out by her husband or by her but were in fact let out by the predecessor-in-interest of the petitioner.

The admitted position is that the suit premises were purchased by the petitioner some time in 1961. She, unfortunately, became a widow in 1980.

It has been held by various judgments of this Court such as Mr. B.M. Chanana v. Union of India and others [1990 (18) DRJ 55]; Mrs. Sarla Luthra v. M/s. Gedore Tools (India) Pvt. Ltd. [1993 (25) DRJ 52] and Bhupinder Singh v. Janak Rani [1948 (47) DRJ 789] that the provisions of Section 14-D of the Delhi Rent Control Act, 1958 cannot be given restricted meaning. It is immaterial that the suit premises were let out by the predecessor-in-interest or the widow. The expression 'letting out by her or by her husband' has to be given a wider meaning including therein the predecessor-in-interest of the widow.

Under these circumstances, I am of the view that the impugned order passed by the learned Additional Rent Controller cannot be sustained.

The learned Additional Rent Controller should now decide the eviction petition on merits.

The parties will appear before the learned Additional Rent Controller on 25th September, 2000.'

5. Learned counsel appearing for the appellant in this case mainly argued on two points. His first submission is that the decision of the Delhi High Court quoted above is erroneous in view of subsequent Constitution Bench decision of this Court in Nathi Devi v. Radha Devi Gupta [2005 (2) SCC 271].

6. The Constitution Bench in Nathi Devi (supra) was formed in view of divergence of opinion between two Benches of this Court on the interpretation of Section 14-D of the said Act.

7. For proper appreciation of the points at issue, the provision of Section 14-D of the said Act is set out below:

14D. Right to recover immediate possession of premises to accrue to a widow. - (1) Where the landlord is a widow and the premises let out by her, or by her husband, are required by her for her own residence, she may apply to the Controller for recovering the immediate possession of such premises.

(2) Where the landlord referred to in sub-section (1) has let out more than one premises, it shall he open to her to make an application under that sub-section in respect of any one of the premises chosen by her.'

8. In Nathi Devi (supra) this Court noticed the difference of opinion between the decision of this Court in the case of Surjit Singh Kalra v. Union of India [1991 (2) SCC 87], and the decision of this Court in Kanta Goel v. B.P. Pathak [1977 (2) SCC 814].

9. The Constitution Bench of this Court in Nathi Devi (supra), upholding the reasoning given by this Court in Surjit Singh Kalra (supra) held as follows:

'...The expression 'let out by her, or by her husband' is not an expression which permits of any ambiguity. We must, therefore, give it its normal meaning. So understood the conclusion is inescapable that the legislative intent was only to confer a special right on a limited class of widows viz. the widow who let the premises or whose husband had let the premises before his death, and which premises the widow requires for her own use.' (Para 28, page 284 of the report)

10. The Constitution Bench made the position further clear in paragraph 32, in the following words:

'...Section 14-D benefits only a class of widows viz. a widow who or whose husband had let out the premises. If the intention was to benefit all widows, the section would have provided that a widow is entitled to obtain immediate possession of the premises owned by her and the expressions 'let out by her or by her husband' and 'such premises' in Section 14-D would be redundant....'

11. Again in the same paragraph it was held as follows:

'....in our view, Section 14-D insists that the premises must be one let out by her or by her husband. A widow or her late husband who acquired a tenanted premises by sale or transfer cannot invoke the provisions of Section 14-D to evict a pre-existing tenant.'

12. In view of the aforesaid clear enunciation of law by the Constitution Bench of this Court on Section 14-D of the said Act, the judgment of the Delhi High Court, extracted above, is clearly erroneous.

13. It may be true that the decision of the Delhi High Court, extracted above, giving a different interpretation of Section 14-D was not challenged by the appellant herein. But the High Court judgment on interpretation of Section 14-D is clearly erroneous in view of the subsequent Constitution Bench judgment of this Court in Nathi Devi (supra). The Constitution Bench decision in Nathi Devi (supra), in view of the mandate of Article 141 of the Constitution is binding on all subordinate Courts and Delhi High Court and the rights of the parties in a pending proceeding under Section 14-D of the said Act must be governed by the law laid down in Nathi Devi (supra).

14. The learned counsel for the appellant has, however, argued another point, namely, that there is no relationship of landlord and tenant between the appellant and the respondent.

15. In view of the decision of this Court in Nathi Devi (supra), this Court need not go into the aforesaid question.

16. Following the Constitution Bench judgment of this Court in Nathi Devi (supra) this Court allows the appeal and holds that provision of Section 14-D is not applicable for eviction of the appellant in this case, since she is admittedly a pre-existing tenant on the premises prior to the purchase of the property by the husband of the respondent landlord.

17. This Court, however, makes it clear that the respondent-landlord, if so advised, is at liberty to initiate eviction proceedings against the appellant in accordance with law. The appeal is, thus, allowed. The impugned order of the High Court is set aside. No order as to costs.

Wednesday, September 8, 2010

C.S.Mani (deceasad) by LR C.S.Dhanapalan Vs.B.Chinnasamy Naidu (deceased)

Code of Civil Procedure, 1908, Order 21 Rule 57 - Attachment -  An attachment, once made in execution of a decree, will continue till the completion of the sale, unless determined by any of the methods as by deemed withdrawal under Rule 55 Order 21 or by determination under Rule 57 Order 21 or by release of the property from attachment under Rule 58 Order 21 or by operation of law or by consent of parties 

Supreme Court of India

CIVIL APPEAL NO. 5798 OF 2002
Hon'ble Judge(s): R Raveendran, H Gokhale
Date of Judgment: 31 August, 2010

C.S.Mani (deceasad) by LR C.S.Dhanapalan Vs.B.Chinnasamy Naidu (deceased)


O R D E R

R.V.RAVEENDRAN, J.

Appellant obtained a money decree for Rs.4200/- against one Mokshammal on 28.2.1972. He levied execution (EP No.466/1974) in respect of the said decree, wherein the suit property (agricultural land measuring 2 acres 22 cents) and two other properties (which are not the subject matter of present proceedings) belonging to Mokshammal were attached on 29.12.1974.

2. The Tamil Nadu Indebted Agriculturists (Temporary Relief) Act, 1975 (`Debt Relief Act' for short) enacted by the Tamil Nadu Legislature came into force with effect from 10.1.2005. Section 4 of the said Act stayed all further proceedings in applications for execution of decrees in which relief was claimed against an agriculturist until the expiry of one year from the date of commencement of the said Act. The proviso thereto enabled the court to pass such orders as it deemed necessary for custody or preservation of the property under attachment. As Mokshammal was an `agriculturist' as defined under the said Act, the execution proceedings in regard to the decree obtained by the appellant against her were closed, by order dated 15.2.1975. The moratorium period of one year under the Debt Relief Act was subsequently extended from time to time till 14.7.1979.

3. After the moratorium period ended, the appellant initiated execution proceedings afresh (EP No.276 of 1980). As the suit property had already been attached on 29.12.1974 in the earlier execution proceedings, and that attachment continued even during the moratorium period, the appellant did not seek any fresh attachment. In the said execution proceedings the attached suit property was brought to sale. At the court auction sale held on 6.6.1984, the appellant purchased the suit property. The auction sale in favour of appellant was confirmed on 30.7.1985 and a sale certificate was issued to him. According to appellant possession of the suit property was also delivered to him through court on 10.9.1985.


4. The judgment debtor Mokshammal filed an application under section 47 of the Code of Civil Procedure (`Code' for short) to set aside the sale. The sale was set aside on 10.1.1986. However the appeal filed by the appellant against the said order was allowed by the Subordinate Judge and by order dated 15.3.1993 the order of the executing court dated 10.1.1986 setting aside the sale was reversed. The revision petition filed by Mokshammal against the said order was dismissed on 5.10.1993. Thus the attempts by Mokshammal to get the sale set aside failed and the auction sale attained finality.


5. In the meanwhile, the Judgment-Debtor Mokshammal sold 75 cents out of the suit property to one Chandra on 17.2.1978 who in turn sold it to Kiliammal on 19.8.1981. The remaining 1.47 acre was also sold by Mokshammal to one Chand Basha under another sale deed dated 18.12.1980. Chand Basha and Kiliammal sold their respective portions measuring 1.47 acres and 75 cents to the respondent under sale deeds dated  27.1.1982 and 6.3.1982. Respondent thus claimed to be the owner in possession of the suit schedule property measuring 2 acres 22 guntas. The respondent filed a suit in the court of District Munsiff, Tiruvallur (O.S.No. 458/1985) against the appellant seeking a declaration of his title over the suit property and for a permanent injunction to restrain the appellant from interfering with his possession over the same. In the said suit, the respondent contended that on the enactment of the Debt Relief Act, the execution against Mokshammal was closed on 15.2.1975 and as a result the attachment dated 29.12.1974 over the suit property came to an end; and therefore when portions of suit property were sold by Mokshammal to Chandra and Chand Basha or when the suit property was subsequently sold to him on 27.1.1982 and 6.3.1982, it was not subject to any attachment and therefore he became the absolute owner thereof. He further contended that the court sale in execution on 6.6.1984 in favour of the appellant, was on the erroneous premise that the suit property was under attachment; and that as the attachment had ceased on 15.2.1975, the auction sale was null and void. He also asserted that he was in possession of the suit property and the claim of the appellant that possession was delivered to him on 10.9.1985, was false and incorrect. The suit was contested by the appellant. The trial court dismissed the suit by judgment and decree dated 7.11.1997, holding that the sale deeds in favour of respondent were not valid and the appellant was in possession of the suit property. The respondent filed an appeal challenging the judgment and decree of the trial court, and the first appellate court by judgment dated 5.8.1998 dismissed the appeal. The trial court and the first appellate court concurrently found that the attachment effected on 29.12.1974 was not raised/withdrawn/determined and it had continued till the sale of the property in the court auction on 6.6.1984 and therefore the sale in favour of appellant was valid and the sales effected by Mokshammal during the subsistence of the attachment were invalid.

6. Feeling aggrieved, the respondent filed a second appeal. The High Court allowed the second appeal and set aside the judgment and decree of the first appellate court, and decreed the suit for declaration of title and injunction filed by the respondent. The High Court held that when the Debt Relief Act came into force, the executing court had closed the execution proceedings on 15.2.1975 with an observation that the attachment to continue for a period of six months, and at the end of six months the attachment came to an end and was not revived or renewed and consequently when Mokshammal sold the suit property on 17.2.1978 and 18.12.1980 in two portions to Chandra and Chand Basha, the suit property was not subject to any attachment and consequently, the respondent who had purchased the suit property from Chandra's successor Killiammal and Chand Basha, was the owner of the suit property. It held that the court sale dated 6.6.1984 and consequent sale certificate did not convey any title to the appellant, as there was no attachment as on the date of sale and Mokshammal did not have any interest in the suit property on the date of auction sale. The said judgment is challenged in this appeal. Legal Position regarding determination of attachment

7. One of the modes of enforcing execution of a money decree is by attachment and sale of the property of the judgment-debtor. (Vide Sec.51(b) of the Code). Attachment of an immovable property is made by an order prohibiting the judgment-debtor from transferring or charging the property in any way, and all persons from taking any benefit from such transfer or charge (Vide Order 21 Rule 54 of the Code). Section 64 of the Code of Civil Procedure provides that private alienation of property after attachment is void and sub-section (1) thereof is extracted below : "64. Private alienation of property after attachment to be void.--(1) Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other money contrary to such attachment, shall be void as against all claims enforceable under the attachment."

8. An attachment of an immovable property effected in execution of a decree, will continue until the said property is sold and the sale is confirmed, unless it is determined or removed on account of any of the following reasons:

(i) By deemed withdrawal under Rule 55 Order 21 of the Code, that is, where the attachment is deemed to be withdrawn on account of (a) the amount decreed with all costs, charges and expenses resulting from the attachment being paid into court; or (b) satisfaction of the decree being otherwise made through the court or is certified to the court; or (c) the decree being set aside or reversed.

(ii) By determination under Rule 57 Order 21 of the Code, that is, after any property has been attached in execution of a decree, the court passes an order dismissing the application for execution of the decree, but omits to give a direction that the attachment shall continue. (When an execution application is dismissed, for whatsoever reason, the court is required to direct whether the attachment shall continue or cease and shall also indicate the period up to which the attachment shall continue or the date on which such attachment shall cease).

(iii) By release of the property from attachment under Rule 58 Order 21 of the Code, that is when any claim is preferred to the property attached in execution, or any objection is made to the attachment, on the ground that the property is not liable to such attachment and the court, on adjudication of the claim or the objections, releases the property from attachment. (iv) By operation of law, that is, on account of any statute declaring the attachment in execution shall cease to operate, or by the decree (in respect of which the property is attached) being nullified, or by the execution being barred by the law of limitation.

(v) By consent of parties, that is, where the decree holder and the judgment debtor agree that the attachment be withdrawn or raised. Questions for consideration


9. On the contentions raised, two questions arise for our consideration in this appeal :

(i) Whether the attachment of the suit property on 29.12.1974 continued after the closure of the execution petition on 15.2.1975, till the auction sale on 6.6.1984 and confirmation of sale on 30.7.1985; and consequently the sales by Mokshammal on 17.2.1978 and 18.12.1980 as also the sales by her transferees to respondent were invalid.

(ii) Whether the attachment of the suit property ceased on 15.8.1975, on the expiry of six months from the date of closure of the execution proceedings, in view of the intervention of the Debt Relief Act and the order of closure dated 15.2.1975; and consequently the sales by Mokshammal on 17.2.1978 and 18.12.1980 were valid, and the auction sale in favour of the appellant was invalid ?

Re : Question (i)


10. There is no dispute that the suit property was attached on 29.12.1974 in the execution proceedings initiated by the appellant against Mokshammal, in regard to the money decree obtained by him. Therefore any private transfer or delivery of the attached property, by Mokshammal during the period when the attachment was in force, was void as against all claims enforceable under the attachment by the appellant. As noticed above, an attachment, once made in execution of a decree, will continue till the completion of the sale, unless determined by any of the methods mentioned in para (8) above. It is not the case of the respondent that there was determination of the attachment on account of any of the grounds specified in Rule 55 or Rule 58 of Order 21 of the Code. There was also no agreement to raise the attachment nor any application for withdrawing the attachment. Therefore what remains to be considered whether there was determination of attachment under any of the circumstances mentioned in paras (ii) and (iv) of para 8 above.

11. It is clear from Rule 57 of Order 21 of the Code that where the court `dismisses' the application for execution of the decree, the attachment effected in execution, shall cease unless the court indicates that the attachment shall continue. But where the execution petition is adjourned `sine die' or closed on account of any moratorium or stay of the execution under a statute, or by an order of stay by any court, there is no "dismissal" of the execution application. Similarly where the execution application is closed without any specific cause, apparently for purposes of statistical disposal, there is no "dismissal" of the execution application. An execution application is `dismissed' when (i) the execution is dismissed as a consequence of the decree being found to be null and void or inexecutable (as contrasted from any temporary eclipse of the decree); or (ii) the execution is dismissed on the ground of any default on the part of the decree-holder.


12. The execution application of the appellant was closed on 15.2.1975 in view of Section 4 of the Debt Relief Act staying executions against agriculturists. The stay of further proceedings in execution under section 4 of the Debt Relief Act was only for a specified limited period. The proviso to section 4 clearly implied that any attachment made in such stayed execution proceedings shall continue to be in effect, by providing that the court will have to pass if necessary the orders for custody or preservation of the attached property during the pendency of stay under the Debt Relief Act. Therefore the enactment of the Debt Relief Act did not determine the attachment. What was stayed or kept in abeyance during the period when the statutory stay of execution operated, was not the attachment, but the further proceedings in pursuance of the attachment, that is, sale of the attached property. On the expiry of the moratorium period under the Debt Relief Act on 17.10.1979, the decree holder became entitled to continue the execution by proceeding with the sale. There is thus no question of determination or withdrawal of attachment, nor any question of `eclipse of attachment' during the period when the statutory stay under the Debt Relief Act, nor any `revival' of attachment thereafter. Attachments in execution, already effected, continued and were in effect, during the entire period of stay of execution by the Debt Relief Act. The alienations by Mokshamal under sale deeds dated 17.2.1978 and 18.2.1980 were therefore void as against the claim enforceable under the attachment obtained by appellant, having regard to Sec. 64 of the Code. As the attachment obtained by the appellant continued, the sale in his favour was valid and the sales by Mokshammal were invalid.

Re : question (ii)


13. The contention of the respondent is that even if the attachment was not determined on account of the enactment of the Debt Relief Act, the executing court which passed the order of attachment on 29.12.1974 had subsequently made an order on 15.2.1975 closing the execution with an observation that the "attachment to continue for six months" thereby making it clear that the attachment would came to an end on 15.8.1975. It was submitted that there was no order extending the attachment after the expiry of the said six month period. It was submitted by the respondent that even assuming that the said order dated 15.2.1975 was erroneous, it was binding and valid as it was not got modified or set aside and had attained finality; and consequently when the sale was effected by Mokashammal on 17.2.1978 and 18.12.1980 in respect of portions of the suit property, there was no subsisting attachment. On the other hand, the appellant contends that on 15.2.1975, the executing court, while closing the execution in view of the stay of execution proceedings by the Debt Relief Act, had made it clear that the attachment will continue. According to them the order made by the executing court while closing the execution proceedings on 15.2.1975 was "Defendant in an agriculturist - EP is closed - attachment to continue".

14. If the order of the executing court while closing the execution, was `attachment to continue', the attachment would have continued in spite of the closing of the execution proceedings. Even if the executing court had closed the execution, in view of the statutory stay, without any specific order continuing the attachment, the attachment would not have ceased as there was no `dismissal' of execution under Order 21 Rule 57 of the Code. But if the order dated 15.2.1975 had stated `attachment to continue for six months', whether right or wrong, the attachment would have come to an end on the expiry of six months from 15.2.1975, unless it was continued by any subsequent order, or had been modified or set aside by a higher court. What then was the order that was passed on 15.2.1975?


15. It is significant that the respondent in his plaint (in OS No. 458/1985) never stated that that order dated 15.2.1975 closing the execution proceedings, continued the attachment for only six months. On the other hand his specific case was that the attachment came to an end on account of the execution being closed on 15.2.1975 by reason of the Debt Relief Act. We extract below the relevant averments from the plaint : 
"While the E.P. Proceedings were in progress Government passed Debt Relief Act for the relief of agriculturists and by virtue of which all further proceedings against agriculturists were either stayed or dismissed. The E.P. No.466/74 was also closed on 15.2.75 with the result the attachment came to an end."

Nearly a decade later, the respondent filed by way of an additional document in the said suit, the suit register extract relating to order dated 15.2.1975 which read as follows :

Amended as per Office Note dated 19.7.1995:

"Defendant is an agriculturist - E.P. is closed - attachment to continue for 6 months".

The certified copy of the order dated 15.2.1975 obtained by the appellant (prior to 19.7.1975 when the amendment was made) read: "Defendant is an agriculturist - E.P. closed - attachment to continue." The said order dated 15.2.1975 was corrected twenty years later on 19.7.1995 by adding the words "for six months" at the end, thereby converting the attachment which was to continue without any specific time limit, as one to end on the expiry of six months. The said correction was by way of an office note and without notice to the appellant. The appellant therefore filed a civil revision petition before the High Court challenging the amendment to the order dated 15.2.1975 made on 19.7.1995 by way of an office note, converting the words "attachment to continue" to "attachment to continue for 6 months".
16. The High Court allowed the said revision petition by order dated 22.12.1995. It found that the correction had been made after 20 years on 19.7.1995, allegedly after obtaining a clarification from the Presiding Officer; and that it was not known how and on what basis such a clarification could be obtained after 20 years and on what authority the person who was the Presiding Officer on 15.2.1975 could issue any clarification after the order, and how the order could be amended after 20 years, that too without giving an opportunity to the appellant to oppose the same. The court therefore allowed the revision petition with the following observations and directions :

"3. It is absolutely necessary that whenever a clerical mistake is to be corrected, such corrections cannot be made behind the back of the parties and the parties must be given an opportunity, explaining the clerical mistake and the circumstances under which the corrections are to be made. Hence the amendment made pursuant to the office note dated 19.7.1995 with regard to the suit register in O.S.No.29/71 cannot be sustained. Accordingly, the same is set aside.

4. The Civil Revision Petition is allowed and the matter is remitted to the Lower Court for fresh disposal according to law. The Lower Court is directed to give notice to the both parties in respect of the clarification required and the amendment to be made and thereafter pass orders regarding the amendment of the suit register, if required."

17. Strangely on such remand by the High Court, the executing court did not hold any enquiry, nor gave any hearing to parties as directed by the High Court. On the other hand a rather strange communication dated 18.9.1996 16

was addressed by the learned District Munsif to the learned counsel for the appellant and respondent herein :

"This is to inform you that regarding the order in E.P.No.466 of 1974 in O.S.No.29 of 1971, the doubt was cleared for the last order in E.P. by the then Presiding officer by his letter dated 29.10.1985 i.e., "Defendant is an Agriculturist. E.P. is closed. Attachment to continue for 6 months". The same was omitted to be carried out in the Suit Register by mistake on 29.10.1985 itself. Hence office note put up on 19.07.1995 and as per order of District Munsif the same was carried out in the suit register, after giving notice to the petitioner's advocate Thiru S.Chandramouli in this Court's Memo in D.No. 393 dated 19.07.1995.

Now as per High Court's direction in C.R.P.No.2864 of 1995 dated 22.12.1995 this fresh notice is given to both the Advocates for making correction in the suit register as well as in the certified copies if any obtained by the Advocates.

Hence both side advocates are directed to produce the certified copies in E.P.No.466 of 1974 in O.S.No.29 of 1971 (Suit Register Extract) on the file of this Court for making correction with in a week's time."

18. The High Court, while allowing the second appeal of the respondent by the impugned judgment, has read the said notice as an "order" reiterating the amendment made on 19.7.1995. The High Court has therefore proceeded on the basis that by order dated 15.2.1975, the executing court had closed the execution proceedings in view of the enactment of the Debt Relief Act and continued the attachment only for six months and thereafter there was no attachment and therefore the sales by Mokshammal on 17.2.1978 and 18.12.1980 were valid and the court auction sale in favour of the appellant was invalid. The High Court clearly erred. Firstly when the Debt Relief Act had clearly indicated that the attachment will continue during the period when the execution proceedings were stayed, it is ununderstandable how the executing court could make an order that the attachment will continue only for six months. Secondly when the order dated 15.2.1975 stated "attachment to continue", it is ununderstandable how the said order could have been amended after 20 years without notice to the plaintiff-decree holder on the basis of some private clarification letter dated 29.10.1985 allegedly written by the District Munsif stating that the order made on 15.2.1975 was not "attachment to continue" but "attachment to continue for six months". Thirdly when said amendment order dated 19.7.1995 amending the order dated 15.2.1975 was set aside by the High Court by order dated 22.12.1995 with a direction for fresh disposal in accordance with law after notice to the parties, it is ununderstandable how the learned District Munsiff, instead of complying with the order of the High Court, could have issued a notice dated 18.9.1996 to both counsel stating that the said correction adding the words "for six months" was required to be made in the certified copies, if any obtained by the Advocates, and that both side Advocates should produce the certified copies in EP No. 466 of 1974 for making the correction. The notice dated 18.9.1996, by no stretch of imagination could be construed as an order after hearing as directed by the High Court by its order dated 22.12.1995. The notice dated 18.9.1996 was apparently issued under an erroneous impression that the High Court had accepted the correction, but had directed making of the correction in the certified copies after notice to the parties. The amendment made pursuant to the office note dated 19.7.1995 having been set aside by order dated 22.12.1995, and no further order having been made thereafter by the executing court, the unauthorized addition of the words "for six months" in the order dated 15.2.1975 have to be ignored and excluded.

conclusion


19. Therefore the attachment dated 29.12.1974 continued till the property was sold by public auction on 6.6.1984 and confirmed on 30.7.1985. Consequently any sale by the judgment debtor Mokshammal, during the subsistence of the attachment was void insofar as the decree obtained by the appellant. Therefore it has to be held that neither the purchasers from Mokshammal nor the respondent who is the subsequent transferee, obtained any title in pursuance of the sales, as the sales were void as against the claims enforceable under the attachment.

20. In view of the above this appeal is allowed and the order of the High Court is set aside and the order of the first appellate court confirming the dismissal of the respondent's suit stands restored and confirmed.

Monday, September 6, 2010

Ramesh Gobindram (dead) through Lrs. Versus Sugra Humayun Mirza Wakf

Wakf Act, 1995 – Powers of State Govt. to constitute Tribunals - State Government is empowered to establish as many Tribunals as it may deem fit for the determination of any dispute, question or other matter relating to a wakf or wakf property under the Act and define the local limits of their jurisdiction - Mutawalli or other person interested in a wakf or any person aggrieved of an order made under the Act or the rules framed there under to approach the Tribunal for determination of any dispute, question or other matter relating to the wakf - Tribunal can be approached only if the person doing so is a mutawalli or a person interested in a wakf or aggrieved by an order made under the Act or the rules, Tribunal shall follow and the manner in which the decision of a Tribunal shall be executed, no appeal is, however, maintainable against any such order although the High Court may call for the records and decide about the correctness, legality or propriety of any determination made by the Tribunal.
Supreme Court of India

CIVIL APPEAL NO. 1182 OF 2006
 
Hon'ble Judge(s): M Katju, T Thakur

Date of Judgment:  1 September, 2010
Ramesh Gobindram (dead) through Lrs. Versus Sugra Humayun Mirza Wakf

O R D E R
T.S. THAKUR, J.
1. These three appeals by special leave arise out of three different orders passed by the High Court of Andhra Pradesh whereby revision petitions filed by the appellants against the orders of A.P. Wakf Tribunal have been dismissed and the orders of eviction passed by the Tribunal affirmed. Since the appeals raise a common question of law for our determination the same were heard together and shall stand disposed of by this common order. The question is whether the Wakf Tribunal constituted under Section 83 of the Wakf Act, 1995 was competent to entertain and adjudicate upon disputes regarding eviction of the appellants who are occupying different items of what are admittedly Wakf properties. The Wakf Tribunal before whom the suits for eviction of the tenants were filed answered the question regarding its jurisdiction in the affirmative and decreed the suit filed against the appellant. Aggrieved by the said orders the appellants filed revision petitions before the High Court of Andhra Pradesh, inter alia, contending that the Tribunal was in error in assuming jurisdiction and directing their eviction. Dismissal of the Revision Petitions by the High Court has led to the filing of the present appeals as already noticed above.

2. Whether or not the Wakf Tribunal can entertain and adjudicate upon a dispute regarding eviction of a tenant holding wakf property under the Wakf Board, would depend upon the scheme of the Wakf Act, 1995 and express or implied exclusion of the jurisdiction of the Civil Courts to entertain any such dispute. If the Act excludes the jurisdiction of the Civil Courts whether such exclusion is absolute and all pervasive or limited only to a particular class of disputes is also an incidental question that may have to be addressed. There is a cleavage in the judicial opinion expressed on these questions by different High Courts in the country. The High Court of Andhra Pradesh has in T. Shivalingam v. A.P. Wakf Tribunal, Hyderabad & Ors. 1999 (3) ALT 602, P. Rama Rao & Ors. v. High Court of Andhra Pradesh, rep. by Registrar (Vigilance) and Ors. 2000 (1) ALT 210, Jai Bharat Co-operative Housing Society Ltd. v. A.P. State Wakf Board, Hyderabad 2000 (5) ALD 743 and Syed Muneer v. Chief Executive Officer and 5 Ors. 2001 (4) ALD 430 taken the view that the Tribunal established under Section 83 of the Wakf Act is competent to entertain and adjudicate upon all kinds of disputes so long as the same relate to any wakf property. So also the High Court of Rajasthan in Anjuman A. Burhani v. Daudi Bohra Jamaet, Registered Society and Anr. AIR 2009 Raj. 150 has taken the view that, the very purpose of creating a Tribunal under the Wakf Act would be defeated if the jurisdiction of the Tribunal is construed in a narrow sense. A similar view has been expressed by the High Court of Madhya Pradesh in Wakf Imambara Imlipura v. Smt. Khursheeda Bi & Ors. AIR 2009 MP 238. The High Court of Kerala in Aliyathammada Beethathabiyyapura Pookoya Haji v. Pattakkal Cheriyakoya & Ors. AIR 2003 Ker. 366 and the High Court of Punjab & Haryana in Surinder Singh v. Punjab Wakf Board & Ors., CR No.32 of 2009(1) have also taken a similar view.
3. A contrary view has been expressed by the High Court of Karnataka in St. Gregorious Orthodox Cathedral, Bangalore v. Aga Ali Asgar Wakf, Bangalore and Anr. 2008 (6) KarLJ 358 and by the High Court of Madras in Saleem v. PA Kareem & Ors. 2008 (2) CTC 492 (Mad). The High Court of Allahabad in Suresh Kumar v. Managing Committee 2009 INDLAW All 1770 has concurred with that line of reasoning. The High Court of Bombay in Abdul Kadar @ Babbu s/o Ismail v. Masjid Juma Darwaja a registered Public Trust through its Secretary Manzoor Mohammad z/o Zahoor Mohammad 2009 (1) BomCR 498 has also taken the view that in cases where the dispute is not regarding the nature of the property, it is a civil dispute which can be determined only by the competent Civil Court and not by the Tribunal constituted under Section 83 of the Act. We shall presently advert to the reasoning and the views taken by the High Courts in the decisions mentioned above. But before we do so, we need to briefly refer to the scheme of the Wakf Act, 1995 and the historical background in which the same was enacted.
4. Wakfs and matters relating thereto were for a long time governed by the Wakf Act, 1954. The need for a fresh legislation on the subject was, however, felt because of the deficiencies noticed in the working of the said earlier enactment especially those governing the Wakf Boards, their power of superintendence and control over the management of individual wakfs. Repeated amendments to the 1954 Act, having failed to provide effective answers to the questions that kept arising for consideration, the Parliament had to bring a comprehensive legislation in the form of Wakf Act 1995 for better administration of wakfs and matters connected therewith or incidental thereto. Chapter I of the 1995 Act deals with Preliminaries like definitions, title, extent and commencement and application of this Act. Chapter II provides for preliminary survey of wakfs, publication of list of wakfs, disputes regarding wakfs and also the powers of the Tribunal to determine such disputes. Chapter III deals with Central Wakf Council while Chapter IV deals with establishment of Boards and their functions. Chapter V, VI and VII regulate the registration of Wakfs and maintenance of accounts thereof and the finances of the Wakf Board. Chapter VIII, with which the controversy at hand is more intimately connected deals with judicial proceedings and, inter alia, provides for constitution of tribunals and adjudication of disputes by them as well as exclusion of jurisdiction of Civil Courts. Chapter IX is a miscellaneous chapter that confers power on the Central Government to regulate the secular activities of wakfs and empowers the State Government to issue directions apart from other provisions like establishment and reorganization and establishment of boards.
5. Before we take up the core issue whether the jurisdiction of Civil Court to entertain and adjudicate upon disputes regarding eviction of wakf property stands excluded under the Wakf Act we may briefly outline the approach that the Courts have to adopt while dealing with such questions. The well-settled rule in this regard is that the Civil Courts have the jurisdiction to try all suits of civil nature except those entertainment whereof is expressly or impliedly barred. The jurisdiction of Civil Courts to try suits of civil 8
nature is very expansive. Any statue which excludes such jurisdiction is, therefore, an exception to the general rule that all disputes shall be triable by a Civil Court. Any such exception cannot be readily inferred by the Courts. The Court would, lean in favour of a construction that would uphold the retention of jurisdiction of the Civil Courts and shift the onus of proof to the party that asserts that Civil Court's jurisdiction is ousted.
6. Even in cases where the statute accords finality to the orders passed by the Tribunals, the Court will have to see whether the Tribunal has the power to grant the reliefs which the Civil Courts would normally grant in suits filed before them. If the answer is in negative exclusion of the Civil Courts jurisdiction would not be ordinarily inferred. In Rajasthan SRTC v. Bal Mukund Bairwa (2), (2009) 4 SCC 299, a three-Judge Bench of this Court observed: "There is a presumption that a civil court has jurisdiction. Ouster of civil court's jurisdiction is not to be readily inferred. A person taking a plea contra must establish the same. Even 9
in a case where jurisdiction of a civil court is sought to be barred under a statute, the civil court can exercise its jurisdiction in respect of some matters particularly when the
statutory authority or tribunal acts without jurisdiction."
7. To the same effect are the decisions of this Court in Pabbojan Tea Co. Ltd. v. Dy. Commr (1968) 1 SCR 260, Ramesh Chand Ardawatiya v. Anil Panjwani AIR 2003 SC 2508, Dhulabhai v. State of M.P. (1968) 3 SCR 662, Mafatlal Industries Ltd. v. Union of India, (1997) 5 SCC 536, State of A.P. v. Manjeti Laxmi Kantha Rao (2000) 3 SCC 689, Dhruv Green Field Ltd. v. Hukam Singh and Ors. (2002) 6 SCC 416, Dwarka Prasad Agarwal v. Ramesh Chandra Agarwala, AIR 2003 SC 2696 and State of Tamil Nadu v. Ramalinga Samigal Madam AIR 1986 SC 794.
8. Let us now see whether the respondent-Wakf Board who claims exclusion of jurisdiction of Civil Court has discharged the onus that lay upon it. Section 6 of the Act which bears direct relevance to that question may at this stage be extracted:
"Section 6. Disputes regarding wakfs.- (1) If any question arises whether a particular property specified as wakf property in the list of wakfs is wakf property or not or whether a wakf specified in such list is a Shia wakf or Sunni wakf, the Board or the mutawalli of the wakf or any person interested therein may institute a suit in a Tribunal for the decision of the question and the decision of the Tribunal in respect of such matter shall be final:
Provided that no such suit shall be entertained by the Tribunal after the expiry of one year from the date of the publication of the list of wakfs. Explanation-For the purposes of this section and Section 7, the expression "any person interested therein", shall, in relation to any property specified as wakf property in the list of wakfs published after the commencement of this Act, shall include also every person who, though not interested in the wakf concerned, is interested in such property and to whom a reasonable opportunity had been afforded to represent his case by notice served on him in that behalf during the course of the relevant inquiry under Section 4.
(2) Notwithstanding anything contained in sub-section (1), no proceeding under this Act in respect of any wakf shall be stayed by reason, only of the pendency of any such suit or of any appeal or other proceeding arising out of such suit.
(3) The Survey Commissioner shall not be made a party to any suit under sub-section (1) and no suit, prosecution or other legal proceeding shall lie against him in respect of anything which is in good faith done or intended to be done in pursuance of this Act or any rules made thereunder.
(4) The list of wakfs shall, unless it is modified in pursuance of a decision of the Tribunal under sub-section (1), be final and conclusive.
(5) On and from the commencement of this Act in a State, no suit or other legal proceeding shall be instituted or commenced in a Court in that State in relation to any question referred to in sub-section (1)."
9. A plain reading of sub-section (5) of Section 6 (supra) would show that the Civil Court's jurisdiction to entertain any suit or other proceedings stands specifically excluded in relation to any question referred to in sub-section (1). The exclusion it is evident from the language employed is not absolute or all pervasive. It is limited to the adjudication of the question (a) whether a particular property specified as wakf property in the list of wakfs is or is not a wakf property, and (b) whether a wakf specified in such list is a Shia wakf or a Sunni wakf. The Board or the mutawalli of the wakf or any person interested in the wakf is competent to institute a suit in a Tribunal for a decision on the above question or questions, which decision shall then be final provided that no such suit can be entertained by the Tribunal after the expiry of one year from the date of the publication of the list of wakfs.
10. We may at this stage refer to Section 7 of the Act which provides for the forum for determination of questions referred to therein and arising after the commencement of this Act. What is important is that the questions referred to in Section 7(1) are the very same questions that are referred to in Section 6(1) with the only difference that Section 7(1) refer to the said questions arising after the commencement of the Act. Section 7 is extracted below: "Section 7. Power of Tribunal to determine disputes regarding wakfs.-

(1) If, after the commencement of this Act, any question arises, whether a particular property specified as wakf
property in a list of wakfs is wakf
property or not, or whether a wakf
specified in such list is a Shia wakf or a Sunni wakf, the Board or the mutawalli of the wakf, or any person interested
therein, may apply to the Tribunal
having jurisdiction in relation to such property, for the decision of the
question and the decision of the
Tribunal thereon shall be final:
Provided that -
(a) in a case of the list of wakfs relating to any part of the State and published
after the commencement of this Act no
such application shall be entertained
after the expiry of one year from the
date of publication of the list of wakfs; and
(b) in the case of the list of wakfs to any part of the State and published at any time within a period of one year immediately preceding the commencement of this Act, such an application may be entertained by Tribunal within the period of one year from such commencement;
Provided further that where any such question has been heard and finally decided by a Civil Court in a suit instituted beforesuch commencement, the Tribunal shall not re-open such question.
(2) Except where the Tribunal has no jurisdiction by reason of the provisions of sub-section (5), no proceeding under this section in respect of any wakf shall be stayed by any Court. Tribunal or
other authority by reason only of the pendency of any suit, application or appeal or other proceeding arising out of any such suit, application, appeal or other proceeding.
(3) The Chief Executive Officer shall not be made a party to any application under sub-section (1).
(4) The list of wakfs and where any such list is modified in pursuance of a decision of the Tribunal under sub-section (1), the list as so modified, shall be final.
(5) The Tribunal shall not have jurisdiction to determine any matter which is the subject-matter of any suit or proceeding instituted or commenced in a Civil Court under sub-section (1) of Section 6, before the commencement of this Act or which is the subject-matter of any appeal from the decree passed before such commencement in any such suit or proceeding or of any application for revision or review arising out of such suit, proceeding or appeal, as the case may be."

11. Second proviso to Section 7(1) accords finality to the judgments of the Civil Court in suits instituted before such commencement. Sub-section (5) to Section 7 excludes from the jurisdiction of the Tribunal any dispute which is the subject matter of a suit in a Civil Court instituted before the commencement of the Act.

12. From a conjoint reading of the provisions of Sections 6 and 7 (supra) it is clear that the jurisdiction to determine whether or not a property is a wakf property or whether a wakf is a Shia wakf or a Sunni wakf rests entirely with the Tribunal and no suit or other proceeding can be instituted or commenced in a Civil Court in relation to any such question after the commencement of the Act. What is noteworthy is that under Section 6 read with Section 7 (supra) the institution of the Civil Court is barred only in regard to questions that are specifically enumerated therein. The bar is not complete so as to extend to other questions that may arise in relation to the wakf property.
13. We may at this stage usefully digress from the core issue only to highlight the fact that Sections 6(1) and the proviso thereto has fallen for interpretation of this Court on a few occasions. In Board of Muslim Wakfs Rajasthan v. Radha Kishan and Ors. (1979) 2 SCC 468 one of the questions that fell for determination was, who are the parties that could be taken to be concerned in a proceeding under sub-section(1) of Section 6 of the Act. This Court held that under Section 6(1) the Board or the mutawalli of the wakf or any person interested therein is entitled to file a suit but the word "therein" following the expression "any person interested" must necessarily refer to the word "wakf" which immediately precedes it. The object underlying the proviso observed, this Court was to confine the power to file a suit to the mutawalli and persons interested in the Wakf. It did not extend to persons who are not persons interested in the wakf. Consequently the right, title and interest of a stranger, (a non-Muslim), to the wakf in a property cannot be put in jeopardy merely because that property is included in the list of wakfs. The special rule of limitation prescribed by the proviso to Section 6(1) was itself held inapplicable to him and a suit for declaration of title to any property included in the list of wakfs held maintainable even after the expiry of the period of one year. The following passage from the decision is in this regard apposite:
"The question that arises for consideration, therefore, is as to who are the parties that could be taken to be concerned in a proceeding under sub-section (1) of Section 6 of the Act, and whether the list published under sub-section (2) of Section 5 declaring certain property to be wakf property, would bind a person who is neither a mutawalli nor a person interested in the wakf. The answer to these questions must turn on the true meaning and construction of the word `therein' in the expression `any person interested therein' appearing in sub- section (1) of Section 6. In order to understand the meaning of the word `therein' in our view, it is necessary to refer to the preceding words `the Board or the mutawalli of the wakf'. The word `therein' must
necessarily refer to the `wakf' which immediately precedes it. It cannot refer to the `wakf property'. Sub-section (1) of Section 6 enumerates the persons who can file suits and also the questions in respect of which such suits can be filed. In enumerating the persons who are empowered to file suits under this provision, only the Board, the mutawalli of the wakf, and `any person interested therein', thereby necessarily meaning any person interested in the wakf, are listed. It should be borne in mind that the Act deals with wakfs, its institutions and its properties. It would, therefore, be logical and reasonable to infer that its provisions empower only those who are interested in the wakfs, to institute suits. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxx It follows that where a stranger who is a non-Muslim and is in possession of a certain property his right, title and interest therein cannot be put in jeopardy merely because the property is included in the list. Such a person is not required to file a suit for a declaration of his title within a period of one year. The special rule of limitation laid down in proviso to sub-section (1) of Section 6 is not applicable to him. In other words, the list published by the Board of Wakfs under sub-section (2) of Section 5 can be challenged by him by filing a suit for declaration of title even after the expiry of the period of one year, if the necessity of filing such suit arises."

14. To the same effect is the decision of this Court in Punjab Wakf Board v. Gram Panchayat Alias Gram Sabha (2000) 2 SCC 121.

15. The exclusion of the jurisdiction of the Civil Courts to adjudicate upon disputes whether a particular property specified in the wakf list is or is not a wakf property or whether a wakf specified in list is a Shia wakf or a Sunni wakf is clear and presents no difficulty whatsoever. The difficulty, however, arises on account of the fact that apart from Section 6(5) which bars the jurisdiction of the Civil Courts to determine matters referred to in Section 6(1), Section 85 of the Act also bars the jurisdiction of the Civil Courts to entertain any legal proceedings in respect of any dispute, question or matter relating to a wakf property. Section 85 of the Act reads:
"85. Bar of jurisdiction of Civil Courts - No suit or other legal proceedings shall lie in any Civil Court in respect of any dispute, question or other matter relating to any wakf, wakf property or other matter which is required by or under this Act to be determined by a Tribunal. "

16. A plain reading of the above would show that the Civil Court's jurisdiction is excluded only in cases where the matter in dispute is required under the Act to be determined by the Tribunal. The words "which is required by or under this Act to be determined by Tribunal" holds the key to the question whether or not all disputes concerning the wakf or wakf property stand excluded from the jurisdiction of the Civil Court. Whenever a question arises whether "any dispute, question or other matter" relating to "any wakf or wakf property or other matter" falls within the jurisdiction of a Civil Court the answer would depend upon whether any such dispute, question or other matter is required under the Act to be determined by the Tribunal constituted under the Act. If the answer be in the affirmative, the jurisdiction of Civil Court would be excluded qua such a question, for in that case the Tribunal alone can entertain and determine any such question. The bar of jurisdiction contained in Section 85 is in that sense much wider than that contained in Section 6(5) read with Section 7 of the Wakf Act. While the latter bars the jurisdiction of the Civil Court only in relation of questions specified in Sections 6(1) and 7(1), the bar of jurisdiction contained in Section 85 would exclude the jurisdiction of the Civil Courts not only in relation to matters that specifically fall in Sections 6 and 7 but also other matters required to be determined by a Tribunal under the Act. There are a host of such matters in which the Tribunal exercises original or appellate jurisdiction. To illustrate the point we may usefully refer to some of the provisions of the Act where the bar contained in the said section would get attracted. Section 33 of the Act deals with the power of inspection by a Chief Executive Officer or person authorized by him. In the event of any failure or negligence on the part of a mutawalli in the performance of his duties leading to any loss or damage, the Chief Executive Officer can with the prior approval of the Board pass an order for the recovery of the amount or property which has been misappropriated, misapplied or fraudulently retained. Sub-section (4) of Section 33 then entitles the aggrieved person to file an appeal to the Tribunal and empowers the Tribunal to deal with and adjudicate upon the validity of the orders passed by the Chief Executive Officer.
17. Similarly under Section 35 the Tribunal may direct the mutawalli or any other person concerned to furnish security or direct conditional attachment of the whole or any portion of the property so specified.
18. Section 47 of the Act requires the accounts of the wakfs to be audited whereas Section 48 empowers the Board to examine the audit report, and to call for an explanation of any person in regard to any matter and pass such orders as it may think fit including an order for recovery of the amount certified by the auditor under Section 47(2) of the Act. The mutawalli or any other person aggrieved by any such direction has the right to appeal to the Tribunal under Section 48. Similar provisions giving powers to the Wakf Board to pass orders in respect of matters stipulated therein are found in Sections 51, 54, 61,64, 67, 72 and 73 of the Act. Suffice it to say that there are a host of questions and matters that have to be determined by the Tribunal under the Act, in relation to the wakf or wakf property or other matters. Section 85 of the Act clearly bars jurisdiction of the Civil Courts to entertain any suit or proceedings in relation to orders passed by or proceedings that may be commenced before the Tribunal. It follows that although Section 85 is wider than what is contained in Sections 6 and 7 of the Act, the exclusion of jurisdiction of Civil Courts even under Section 85 is not absolute. It is limited only to matters that are required by the Act to be determined by a Tribunal. So long as the dispute or question raised before the Civil Court does not fall within four corners of the powers vested in the Tribunal, the jurisdiction of the former to entertain a suit or proceedings in relation to any such question cannot be said to be barred.
19. The High Courts of Andhra Pradesh, Rajasthan, Madhya Pradesh, Punjab and Haryana have in the decisions to which we have made reference in the earlier part of this judgment taken the view that the jurisdiction of the Civil Courts is barred in respect of disputes that concerns with any wakf or wakf property. The decisions rendered by these High Courts draw support for that conclusion from Section 83 of the Wakf Act, 1995. The language employed in Section 83 of the Act has been understood to be so wide as to include any dispute, question or other matter relating to a wakf or wakf property. Section 83 of the Act, however, does not deal with the exclusion of the jurisdiction of the Civil Courts to entertain civil suits generally or suit of any particular class or category. The exclusion of Civil Court's jurisdiction is dealt with by Section 6(5) and Section 85 of the Act. To interpret Section 83 as a provision that excludes the jurisdiction of the Civil Courts is not, therefore, legally correct, for that provision deals with constitution of Tribunals, the procedure which the Tribunals would follow and matters relating thereto. It reads:
"83. Constitution of Tribunals, etc.
(1) The State Government shall, by
notification in the Official Gazette, constitute as many Tribunals, as it may think fit, for the determination of any dispute, question or other matter relating to a wakf or wakf property under this Act and define the local limits and jurisdiction under this Act of each of such Tribunals.
(2) Any mutawalli person interested in a wakf or any other person aggrieved by an order made under this Act, or rules made thereunder, may make an application within the time specified in this Act or where no such time has been specified, within such time as may be prescribed, to the Tribunal for the determination of any dispute, question or other matter relating to the wakf. (3) Where any application made under sub- section (1) relates to any wakf property which falls within the territorial limits of the jurisdiction of two or more Tribunals, such application may be made to the Tribunal within the local limits of whose jurisdiction the mutawalli or any one of the mutawallis of the wakf actually and voluntarily resides, carries on business or personally works for gain, and, where any such application is made to the Tribunal aforesaid, the other Tribunal or Tribunals having jurisdiction shall not entertain any application for the determination of such dispute, question or other matter:
Provided that the State Government may, if it is of opinion that it is expedient in the interest of the wakf or any other person interested in the wakf or the wakf property to transfer such application to any other Tribunal having jurisdiction for the determination of the dispute, question or other matter relating to such wakf or wakf property, transfer such application to any other Tribunal having jurisdiction, and, on such transfer, the Tribunal to which the application is so transferred shall deal with the application from the stage which was reached before the Tribunal from which the application has been so transferred, except where the Tribunal is of opinion that it is necessary in, the interests of justice to deal with the application afresh. 
(4) Every Tribunal shall consist, of one person, who shall be a, member of the State Judicial Service holding a rank, not below that of a District, Sessions or Civil Judge, Class I, and the appointment of every such person may be made either by name or by designation.
(5) The Tribunal shall be deemed to be a civil court and shall have the same powers as may be exercised by a civil court under the Code of Civil Procedure, 1908 , (5 of 1908 .) while trying a suit, or executing a decree or order.
(6) Notwithstanding anything contained in the Code of Civil Procedure, 1908, (5 of 1908), the Tribunal shall follow such procedure as, may be prescribed.
(7) The decision of the Tribunal shall be final and binding upon the parties to the application and it shall have the force of a decree made by a, civil court.
(8) The Execution of any decision of the Tribunal shall be made by the civil court to which such decision is sent for execution in accordance with the provisions of the Code of Civil Procedure, 1908 (5 of 1908).
(9) No appeal shall he against any decision or order whether interim or otherwise, given or made by the Tribunal:
Provided that a High Court may, on its own motion or on the application of the Board or any person aggrieved, call for and examine the records relating to any dispute, question or other matter which has been determined by the Tribunal for the purpose of satisfying itself as to the correctness, legality or propriety of such determination and may confirm, reverse or modify such determination or pass such other order as it may think fit."
20. It is clear from sub-section(1) above that the State Government is empowered to establish as many Tribunals as it may deem fit for the determination of any dispute, question or other matter relating to a wakf or wakf property under the Act and define the local limits of their jurisdiction. Sub-section (2) of Section 83 permits any mutawalli or other person interested in a wakf or any person aggrieved of an order made under the Act or the rules framed thereunder to approach the Tribunal for determination of any dispute, question or other matter relating to the wakf. What is important is that the Tribunal can be approached only if the person doing so is a mutawalli or a person interested in a wakf or aggrieved by an order made under the Act or the rules. The remaining provisions of Section 83 provide for the procedure that the Tribunal shall follow and the manner in which the decision of a Tribunal shall be executed. No appeal is, however, maintainable against any such order although the High Court may call for the records and decide about the correctness, legality or propriety of any determination made by the Tribunal.
21. There is, in our view, nothing in Section 83 to suggest that it pushes the exclusion of the jurisdiction of the Civil Courts extends beyond what has been provided for in Section 6(5), Section 7 and Section 85 of the Act. It simply empowers the Government to constitute a Tribunal or Tribunals for determination of any dispute, question of other matter relating to a wakf or wakf property which does not ipso facto mean that the jurisdiction of the Civil Courts stands completely excluded by reasons of such establishment. It is noteworthy that the expression "for the determination of any dispute, question or other matter relating to a wakf or wakf property" appearing in Section 83(1) also appears in Section 85 of the Act. Section 85 does not, however, exclude the jurisdiction of the Civil Courts in respect of any or every question or disputes only because the same relates to a wakf or a wakf property. Section 85 in terms provides that the jurisdiction of the Civil Court shall stand excluded in relation to only such matters as are required by or under this Act to be determined by the Tribunal. The crucial question that shall have to be answered in every case where a plea regarding exclusion of the jurisdiction of the Civil Court is raised is whether the Tribunal is under the Act or the Rules required to deal with the matter sought to be brought before a Civil Court. If it is not, the jurisdiction of the Civil Court is not excluded. But if the Tribunal is required to decide the matter the jurisdiction of the Civil Court would stand excluded.
22. In the cases at hand the Act does not provide for any proceedings before the Tribunal for determination of a dispute concerning the eviction of a tenant in occupation of a wakf property or the rights and obligations of the lessor and the lessees of such property. A suit seeking eviction of the tenants from what is admittedly wakf property could, therefore, be filed only before the Civil Court and not before the Tribunal. The contrary view expressed by the Tribunal and the High Court of Andhra Pradesh is not, therefore, legally sound. So also the view taken by the High Courts of Rajasthan, Madhya Pradesh, Kerala and Punjab and Haryana in the decisions referred to earlier do not declare the law correctly and shall to the extent they run counter to what we have said hereinabove stand overruled. The view taken by the High Courts of Allahabad, Karnataka, Madras and Bombay is, however, affirmed.

23. In the result these appeals succeed and are hereby allowed. The impugned orders passed by the High Court and those passed by the Wakf Tribunal shall stand set aside and the suit filed by the respondent-Wakf Board for the eviction of the appellants dismissed leaving the parties to bear their own costs. We make it clear that this order shall not prevent the Wakf Board from instituting, if so advised, appropriate civil action before the competent Civil Court for redress in accordance with law. No costs.

Thursday, September 2, 2010

Yadava Kumar Vs.The Divisional Manager, National Insurance Co. Ltd.and another

Motor Vehicles Act, 1988 Section 163A and Section 5 - Loss of future earnings- Appellant, 30 years old, a painter by profession, sustained injuries in a road accident. The appellant has sustained a fracture of distal end of left radius with fracture of left ulnar styloid process and fracture distal end of right radius with mild diastasis and soft tissues swelling around wrist joint. The doctor has assessed the disability at 33% in respect of the right upper limb and 21% towards left upper limb and 20% in respect of the whole body, which prevents the appellant from painting in view of multiple injuries sustained by him. Hon'ble High Court while granting compensation refused to award any amount towards loss of future earning. Though that point was specifically urged before the Hon'ble High Court, the Hon'ble High Court refused any compensation towards loss of future earning
Here is a distinction between compensation and damage. The expression compensation may include a claim for damage but compensation is more comprehensive. Normally damages are given for an injury which is suffered, whereas compensation stands on a slightly higher footing. It is given for the atonement of injury caused and the intention behind grant of compensation is to put back the injured party as far as possible in the same position, as if the injury has not taken place, by way of grant of pecuniary relief. Thus, in the matter of computation of compensation, the approach will be slightly more broad based than what is done in the matter of assessment of damages. At the same time it is true that there cannot be any rigid or mathematical precision in the matter of determination of compensation.

Supreme Court of India

CIVIL APPEAL NO. 7223 of 2010
Hon'ble Judge(s): G.S. Singhvi & Asok Kumar Ganguly
Date of Judgment: 31 August, 2010

Yadava Kumar Vs.The Divisional Manager, National Insurance Co. Ltd.and another

O R D E R
GANGULY, J. 1. Delay condoned.

2. Leave granted.

3. Assailing the Division Bench judgment of the Karnataka High Court dated 12.8.2009, whereby compensation of Rs.52,000/- granted by the Tribunal was enhanced to Rs.72,000/-, this appeal claiming higher compensation was filed by the appellant.

4. The Hon'ble High Court has awarded compensation under the following heads:

1. Towards pain and suffering: Rs.20,000/-
2. Loss of income from the period of treatment: Rs.9,000/-
3. Towards medical expenses, conveyance, nourishing food and attendant charges: Rs.8,000/-
4. Towards loss of amenities: Rs.35,000/-
Total: Rs.72,000/- + 8% p.a. interest from the date of the petition till realization.

5. The material facts of the case are that, the appellant, a painter by profession, was 30 years old at the time of sustaining the injury in a road accident which took place on 24th March 2003 while the appellant was standing on the side of Nagavara Ring Road to cross it from south to north. The offending Tempo bearing No.KA-04-C/6030 came at a great speed from west to east and hit the appellant as a result of which he fell down and sustained several injuries. The appellant was rushed to Al-Habeeb Hospital where he was treated. The claim petition was filed on 3rd February, 2006.

6. About the nature of the injury sustained by the appellant, the evidence of PW-2 Dr. S. Ranjanna, Orthopaedic Surgeon, Bowring & Lady Curzon Hospital, Bangalore is very crucial. PW-2 examined the appellant on 26.11.05. As per the wound certificate and X-ray report of Al-Habeeb Hospital, Bangalore, PW-2 noted that the appellant sustained the following injuries:

'(1) Fracture of distal end of left radius with fracture of left ulnar styloid process.
(2) Fracture of distal end of right radius with mild diastases is Radioulnar joint and soft tissue swelling around wrist joint.'

7. Even on examination on 26.11.05, which is after two and a half years after the date of incident, PW-2 found the following injuries on the appellant:

(1) Deformity of right wrist
(2) Limitation of right wrist movements by 40%
(3) Limitation of right forearm movements by 30%
(4) Wasting of right forearm muscles by 3 cms
(5) Weak Right hand grip
(6) Limitation of left wrist movement by 25%
(7) Tenderness over left wrist
(8) Instability of left in favour of Radio ulnar joint
(9) Weakness of left hand

8. PW-2 opined that in view of the injuries the appellant cannot perform any hard work, cannot lift any weight and cannot perform any work smoothly and after referring to various guidelines in manual PW-2 opined that the appellant has disability of 33% of right upper limb and 21% to left upper limb and 20% total disability of the whole body. In view of such disability, appellant cannot work as a painter and cannot do any other manual work also. In cross-examination also PW-2 admitted that even if the appellant continues his old vocation as a painter, he has to do it with difficulty.

9. Both the Tribunal and the High Court have failed to incorporate any thing by way of compensation in the category of 'loss of future earnings' in spite of recognizing the fact that there is disability of 33% in the right upper limb, 21% in the left upper limb and 20% in respect of the whole body, which does not allow the appellant to paint as he did earlier.
10. The Second Schedule under Section 163A of the Motor Vehicles Act, 1988 gives a structured formula for the calculation of compensation in accident cases. Section 5 of the Schedule deals with disability in non-fatal accidents and reads as follows:

'5. Disability in non-fatal accidents:

The following compensation shall be payable in case of disability to the victim arising out of non-fatal accidents:

Loss of income, if any, for actual period of disablement not exceeding fifty two weeks.
PLUS either of the following:

(a) In case of permanent total disablement the amount payable shall be arrived at by multiplying the annual loss of income by the Multiplier applicable to the age on the date of determining the compensation, or

(b) In case of permanent partial disablement such percentage of compensation which would have been payable in the case of permanent total disablement as specified under item (a) above. Injuries deemed to result in Permanent Total Disablement/Permanent Partial Disablement and percentage of loss of earning capacity shall be as per Schedule I under Workmen's Compensation Act, 1923.'

11. Thus, the multiplier method is to be applied in cases of injuries also and it has been applied in a number of accident cases by High Courts and this Court.

12. This Court in Sunil Kumar v. Ram Singh Gaud and others [2008 ACJ 9], awarded compensation in case of injury for loss of future earnings and applied the multiplier method for calculation of the same. The same principle was recognized by this Court in Priya Vasant Kalgutkar v. Murad Shaikh & Ors. [JT 2009 (14) SC 41 : AIR 2010 SC 40].

13. In Mukesh Kumar Sharma v. Ramdutt and Ors. [2006 ACJ 1792], Madhya Pradesh High Court applied the multiplier method keeping in mind the percentage by which the injured person's earning capacity was reduced. A similar calculation was made by the Division Bench of Karnataka High Court in Syed Nisar Ahmed v. The Managing Director, Bangalore Metropolitan Transport Corporation [2003 (5) Karn. L.J. 186].

14. In this case, the appellant has sustained a fracture of distal end of left radius with fracture of left ulnar styloid process and fracture distal end of right radius with mild diastasis and soft tissues swelling around wrist joint. The doctor has assessed the disability at 33% in respect of the right upper limb and 21% towards left upper limb and 20% in respect of the whole body, which prevents the appellant from painting in view of multiple injuries sustained by him.

15. The Hon'ble High Court while granting compensation refused to award any amount towards loss of future earning. Though that point was specifically urged before the Hon'ble High Court, the Hon'ble High Court refused any compensation towards loss of future earning by, inter alia, holding that:

'We are of the view that, the said submission has no force for the reason that, the appellant has not produced an iota of document to substantiate his stand.'

16. We are unable to agree with the aforesaid view of the High Court.

17. While assessing compensation in accident cases, the High Court or the Tribunal must take a reasonably compassionate view of things. It cannot be disputed that the appellant being a painter has to earn his livelihood by virtue of physical work. The nature of injuries which he admittedly suffered, and about which the evidence of PW-2 is quite adequate, amply demonstrates that carrying those injuries he is bound to suffer loss of earning capacity as a painter and a consequential loss of income is the natural outcome.

18. It goes without saying that in matters of determination of compensation both the Tribunal and the Court are statutorily charged with a responsibility of fixing a 'just compensation'. It is obviously true that determination of a just compensation cannot be equated to a bonanza. At the same time the concept of 'just compensation' obviously suggests application of fair and equitable principles and a reasonable approach on the part of the Tribunals and Courts. This reasonableness on the part of the Tribunal and Court must be on a large peripheral field. Both the Courts and Tribunals in the matter of this exercise should be guided by principles of good conscience so that the ultimate result become just and equitable (See Mrs. Helen C. Rebello and others v. Maharashtra State Road Transport Corpn. and another [JT 1998 (6) SC 418]).

19. This Court also held that in the determination of the quantum of compensation, the Court must be liberal and not niggardly in as much as in a free country law must value life and limb on a generous scale (See Hardeo Kaur and others v. Rajasthan State Transport Corporation and another [JT 1992 (2) SC 409 : 1992 (2) SCC 567]).

20. The High Court and the Tribunal must realize that there is a distinction between compensation and damage. The expression compensation may include a claim for damage but compensation is more comprehensive. Normally damages are given for an injury which is suffered, whereas compensation stands on a slightly higher footing. It is given for the atonement of injury caused and the intention behind grant of compensation is to put back the injured party as far as possible in the same position, as if the injury has not taken place, by way of grant of pecuniary relief. Thus, in the matter of computation of compensation, the approach will be slightly more broad based than what is done in the matter of assessment of damages. At the same time it is true that there cannot be any rigid or mathematical precision in the matter of determination of compensation.

21. Going by these principles, as we must, this Court is constrained to observe that in this case the approach of the High Court in totally refusing to grant any compensation for loss of future earning is not a correct one.

22. This Court could have remanded the matter to the High Court for assessment of compensation on the aforesaid lines but the accident took place in March 2003 and a remand to the High Court for determination of compensation will further delay the matter. Therefore, to shorten litigation, and having regard to this Court's power under Article 142 of the Constitution to do complete justice between the parties, this Court itself assesses the compensation as follows:

Therefore, in the present case, the loss of future income may be calculated using the multiplier method as follows:

Income of the appellant (as accepted by the High Curt) is Rs.3,000/- p.m. Therefore, the yearly income is Rs.36,000/-.
Multiplier according to age (30 years) as per Schedule is 17.

Thus, the total comes to:
Rs.36,000/- x 17 = Rs.6,12,000/-.

Percentage of disablement is 20%

Therefore, loss of future earnings would come to Rs.1,22,400/-.

23. If this is added to the compensation provided by the High Court in other categories, the total compensation comes to Rs.1,22,400/- + Rs.72,000/-, that is Rs.1,94,400/-.

24. This Court, therefore, grants a lump sum of Rupees Two Lakhs by way of compensation plus 8% interest as granted by the High Court.

25. The appeal is allowed to the extent indicated above. There will be no order as to costs.