Sunday, October 31, 2010

STATE OF U.P. v. MUNNI RAM & ORS. [2010] INSC 911 (26 October 2010)

Judgement

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS. 909-910 OF 2002

STATE OF U.P. .. Appellant
VERSUS
MUNNI RAM & ORS. ..Respondents

SURINDER SINGH NIJJAR, J.
1. These appeals by the State of U.P. are directed against the judgment of the High Court of Judicature at Allahabad dated 7.9.2001 rendered in Criminal Appeal No. 642 of 1988 and Criminal Revision No. 611 of 1988.

By the aforesaid judgment, the High Court set aside the judgment of the trial court convicting Munni Ram, Maya Ram, Ram Ugrah and Ram Ajore (respondents herein) under Section 304/34, 147 and 323 IPC as well as under Section 24 of the Cattle Trespass Act, 1871. The criminal revision challenging the acquittal of Bhagirath under 1 Section 308/304 read with section 149 IPC was also dismissed.

2. Briefly stated, the prosecution case was that on 14.6.1983, in the afternoon, Sita Ram (hereinafter referred to as PW-2) had noticed that the buffaloes of Ram Ugrah (hereinafter referred to as respondent No: 3) and Ram Ajore (hereinafter referred to as respondent No:

4) had trespassed into his field and were damaging the sugarcane crop. He, therefore, drove them out and was taking them to the cattle pound in the village. He had only gone a short distance when Munni Ram (hereinafter referred to as respondent No: 1) met him and enquired the reason why PW-2 was driving away his buffaloes.

PW-2 told him that the buffaloes had damaged his sugarcane crop, therefore, he would deposit them in the cattle pound. On hearing this, respondent No: 1 went back to his house. When PW-2 reached near the house of Ilakedar, village Pradhan, respondent No: 1, Maya Ram (hereinafter referred to as respondent No: 2), respondent 2 No: 3, respondent No: 4 and Bhagirath (hereinafter referred to as respondent No: 5) confronted him. They were armed with lathies. They took away the buffaloes from PW-2 and assaulted him with their respective weapons. The hue and cry raised by PW-2 attracted his sister-in-law, i.e. Singari Devi, his son Ramesh and his brother Ram Kewal to the spot. When they tried to intervene, they were also assaulted by the respondents.

In fact, other witnesses who came to the spot were also assaulted. In this short assault, PW-2, Singari Devi, Ramesh, Hari Ram and Ram Kewal sustained injuries on vital parts of their bodies.


3. The condition of Singari Devi and Ramesh being critical, they were brought to the District Hospital, where they were admitted. All the five injured witnesses were medically examined by Dr. G.P. Agarwal (PW-10) from 10.00 PM on wards. Ramesh Chandra was first medically examined at the District Hospital, Basti on 14.6.83 but was later admitted to the Medical College, Lucknow as 3 his condition became critical. He succumbed to his injuries on 16.6.1983 within three hours after reaching the hospital. The post mortem examination on his dead body was conducted on 16.6.1983 at 3.00 PM by Dr. V.P.

Singh (PW-8).


4. Singari Devi also died on 17.6.1983 at about 4.10 AM at District Hospital, Basti. The post mortem on her dead body was conducted on the same day by PW-10 at 4.00 PM.


5. The FIR was registered on 15.6.1983 at 7.10 AM by Avadh Prasad (PW-1). The distance of the police station is 13 Kms. from village Raunakala where the incident had taken place. Initially, the case was registered under Section 147, 308 and 426 IPC. After the death of Singari Devi and Ramesh, it was converted to Section 147, 308, 426, 304 IPC and Section 24 of the Cattle Trespass Act, 1871. On completion of the investigation, charge sheet 4 was duly submitted and the case was transferred to the Court of Sessions and Trial Judge.


6. In support of its case, the prosecution examined PW-1, who registered the FIR of the incident in the following morning; PW-2, an injured witness, Mohd.

Shami (PW-3), Dr. V.M. Agarwal (PW-4), PW-8 and PW- 10, who had examined all the injured witnesses and conducted autopsy on the deceased persons. PW-5, Tila Mohd. Khan is Head Moharrir. He had prepared the written report and also prepared the check report.

According to him, he had completed the other formalities pertaining to the FIR. PW-6, Om Prakash and PW-7, Umesh Babu had filed their affidavits. They had only escorted the dead body to the mortuary. PW-9 Vidya Vinod Pathak is Sub-Inspector Police Station, Kotwali, Basti. He prepared the inquest memo. He also arrested respondent No: 1, 3 and 5 and took them in police custody. PW-11 Chhangur Singh had prepared the panchayatnama of the dead body Ramesh Chandra. Shiv 5 Saran Singh, PW-12 is the investigating officer. This in a nutshell is the entire prosecution evidence.


7. The defence of the respondents is a cross version of the incident. According to them, the incident occurred when PW-2, Hari Ram, Ram Kewal, Ramesh and Gulam Nabi were trying to remove a branch of the Jamun tree, which had been cut from the tree and fallen in the field of the respondents. The incident occurred according to the respondents at about noon time. Respondent No: 2 had gone to the field empty handed and requested the aforesaid persons not to remove the fallen branch of the Jamun tree. On being so requested, they started beating him. His alarm attracted respondent No: 1 and respondent No: 3, who came to the spot armed with lathies. PW-2, Hari Ram, Ram Kewal, Ramesh and Gulam Nabi also attacked respondent No: 1 and respondent No. 3. In the mean time, family members of both the sides gathered at the spot and started hurling brickbats on each other. Consequently, both sides 6 suffered injuries. Respondents also got their injuries medically examined at the District Hospital.


8. After medical examination, they had gone to lodge the report at the Police Station, Kotwali, Basti. Gulam Nabi, who is the son of the Village Pradhan was already present there. It was at then that they were arrested. In order to prove their version, they have also produced four defence witnesses. Ram Dulare Tripathi, DW-1 produced the application sent by the accused party to the Superintendent of Police containing the defence version.


9. Upon examination of the entire evidence led by the parties, trial court convicted and sentenced the respondents as follows:- (i) Munni Ram, Maya Ram, Ram Ugrah, Ram Ajore and Bhagirathi under Section 147 and 323. They were sentenced to R.I. for 1 year 7 under Section 147 and 1 year R.I. under Section 323 IPC.

(ii) Respondents Munni Ram, Maya Ram, Ram Ugrah and Ram Ajore were also convicted under Section 304 read with Section 34 IPC and sentenced to R.I. for 10 years and a fine of Rs. 5,000/- each. In default of payment of fine, they were sentenced to further 2 years R.I.

(iii) Bhagirathi was, however, acquitted of the offences under Section 308/304 IPC read with Section 149.

(iv) All the other accused were also acquitted of the offences under Section 308 and 149.

(v) All the five accused were also convicted under Section 24 of the Cattle Trespass Act and sentenced to R.I. for 1 month only.


10. Against the aforesaid conviction and acquittal, the accused respondents herein approached the High Court 8 by way of Criminal Appeal No. 642 of 1988 and the complainants challenged the acquittal of respondent no:

5 by way of a Criminal Revision No. 611 of 1988. The High Court by its judgment dated 7.9.2001 allowed the aforesaid Criminal Appeal and acquitted all the respondents. The Criminal Revision No. 611 of 1988 filed by the complainants was dismissed maintaining the acquittal of the respondent no: 5.


11. In the present appeal, the State of U.P. has challenged the common judgment on various grounds.

12. We have heard the learned counsel for the parties.

Mr. Ratnakar Dash, appearing for the State of U.P.

submitted that the High Court has erroneously disbelieved the clear and consistent evidence of the eye- witnesses who were also injured witnesses. PW-2, according to him had clearly stated that on 14.6.1983 at about 3.30-4.00 PM, he was distributing kerosene from the P.D.S. shop which had been allotted to him. He went 9 to answer the call of nature and asked PW3 to distribute the kerosene in his absence. He was carrying some water in a lota with him for cleaning himself after going to the toilet. At that time, he saw the buffaloes of respondent no: 3 and 4 were damaging his sugarcane crop. He had driven out the cattle and was taking them to the cattle pound in the village. Particular reliance was placed on the evidence by PW-2. According to the learned counsel, this witness had given a detailed and consistent version as to how the buffaloes of the accused persons namely respondent no: 3 and 4 had damaged his sugarcane crop.

He had also narrated the sequence about taking the buffaloes towards the cattle pound in the village.

Thereafter, he had narrated how the five accused armed with lathies had assaulted him. They had abused him and also told him that they will finish him off. He had also further narrated the sequence of events as to how the other members of the family were also attacked. The witnesses have completely supported the prosecution version with regard to the treatment of injury and the 10 subsequent death of Ramesh and Singari Devi. PW-3 had also given a consistent account of the entire incident which led to the death of two persons. These witnesses had also denied the cross-version suggested by the defence, the respondents herein. According to the learned counsel, the injuries suffered by the defence were superficial and self inflicted. Learned counsel further submitted that the High Court wrongly disbelieved the entire prosecution version on the ground that the injuries suffered by the respondents had not been explained by the prosecution.


13. On the other hand, learned counsel for the respondents submitted that the High Court has rightly rejected the prosecution version for a number of cogent reasons. The injuries suffered by the respondents cannot be said to be superficial. The FIR has been clearly ante- timed and ante-dated. The genesis of the incident has been suppressed and a wholly false version has been projected in the FIR. According to the learned counsel, 11 the complainants were in fact the aggressors. The incident had taken place in the field belonging to the respondents when they had objected to the complaints removing the illegally cut branch of the Jamun tree.


14. We have carefully considered the submissions made by the learned counsel for the parties and gone through the judgment of the High Court. The High Court upon a very careful appraisal of the entire evidence notices that this being a case of cross-versions, it was the duty of the Court to ascertain which of the two versions were genuine and probable. Taking up the evidence of PW-1, the High Court concludes that the very presence of this witness is dubious. In coming to the aforesaid conclusion, the High Court has taken into consideration, the inconsistent versions of PW-2 and PW-3. It is also noticed that the name of PW-1 is not even mentioned in the FIR as a witness. The High Court also notices that the story about the kerosene oil being distributed by PW- 2 is also concocted. According to the High Court, the 12 prosecution had failed to produce any record of the distribution of kerosene either by PW-2 or any other individual.


15. In view of the very presence of PW-1 being shaky, the High Court concluded that in these circumstances, no authenticity can be attached to the version given by him in the FIR. The High Court further notices that PW- 1 had tied to cover up the lacunae in the FIR.

Subsequently, he admitted in cross-examination that some portion of the FIR was narrated on the information given by PW-2 and PW-3. He was also unable to give any cogent description of the sequence of assault on injured.

The High Court concluded that his presence on the spot in the circumstances was rendered doubtful. His evidence was that of an interested witness who had deep affinity with PW-2 and the son of village Pradhan, who was instrumental in the arrest of the respondents. His evidence was, therefore, discarded by the High Court.

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16. Taking up the evidence of PW-2, the High Court disbelieved the story that he had gone to answer the call of nature. The High Court also disbelieved that PW-1 was present at the spot when PW2 entrusted the job of distribution of kerosene oil to PW-3. Upon a complete analysis of the entire evidence, the High Court concluded that the story about PW-2 leaving the kerosene shop for answering the call of nature is a made up story and does not bear scrutiny. He even feigned to have defended himself with the vessel (lota) which had got damaged during the process. The High Court took due notice of the fact that neither any blood-stained cloth nor the damaged vessel (lota) were taken into custody by the investigating authorities. The High Court concluded that this witness had deliberately introduced Avadh Prasad (PW1) in the case. He did not distribute any oil on the day of the incident. The story about driving the buffaloes to the cattle pound was disbelieved as the animals were found going towards the house of the witness PW-2. The 14 evidence given by PW-3 has also been discarded for similar reasons.


17. The High Court, thereafter, notices that the defence version cannot be discarded. The injuries suffered by the respondents were not superficial in nature. Three of the respondents were suffered one injury each on their head.

The High Court further notices that the three respondents had actually gone to the police station to make a complaint about the assault on them by the complainants. Therefore, it cannot be said that the defence version is not probable. The High Court also concluded that merely because the prosecution witnesses had suffered more injuries than the respondents, would not be sufficient to hold that the respondents were the aggressor party. In other words, the defence version cannot be discarded only on the basis of lesser number of injuries having been suffered by them. The High Court concluded that the prosecution version is so mixed up with falsehood that any truth or semi-truth is not 15 possible to be distinguished therein. The High Court also notices that in this case, the evidence of the prosecution witnesses is not corroborated by any other independent witnesses.


18. In our opinion, the conclusions reached by the High Court cannot be said to be such which has led to a miscarriage of justice. The High Court has taken a possible view which could legitimately be taken on the basis of the inconsistencies in the evidence of the prosecution. The High Court has acted in accordance with the well-known principles that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to innocence, the view which is favourable to the accused is normally to be adopted.


19. It is well settled that in an appeal by special leave under Article 136 of the Constitution, against an order of acquittal passed by the High Court, this court would not 16 normally interfere with a finding of the fact based on appreciation of evidence, unless the approach of the High Court is clearly erroneous, perverse or improper and there has been a grave miscarriage of justice.


20. We are of the considered opinion that in this case, the High Court has merely corrected the omissions in the appreciation of evidence committed by the trial court in convicting the respondents. The High Court has taken a view which is plausible as well as possible. In light of the aforesaid findings, we find no merit in these appeals and the same are accordingly dismissed.

...................................J.

[B.Sudershan Reddy] ...................................J.

[Surinder Singh Nijjar] New Delhi;

October 26, 2010.



SUDHAKARAN v. STATE OF KERALA [2010] INSC 912 (26 October 2010)

Judgement
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 389 OF 2007

Sudhakaran ... Appellant
VERSUS
State of Kerala ...Respondent

SURINDER SINGH NIJJAR, J.

1. The present appeal is directed against the judgment and final order in Criminal Appeal No. 1092 of 2003 dated 21.10.2005 whereby the High Court of Kerala at Ernakulum dismissed the criminal appeal filed by the appellant and thereby affirmed his conviction under Section 302 IPC as held by the trial court vide judgment dated 30.11.2002.

2. Shorn of unnecessary details, the facts essential for adjudication of the present appeal are:

1 The appellant herein was convicted and sentenced to rigorous imprisonment for life under Section 302 IPC for murdering his wife on 3.11.2000 at about 7.30 p.m. He had killed his wife by assaulting her with a chopper on her neck in the bedroom of his house. There is no direct evidence of the murder. However, the factum of death of the appellant's wife by the injuries noticed in post mortem report (Exb.P5) is not disputed. The appellant had taken the defence of insanity based on Section 84 IPC. He had examined four witnesses in support of his defence. Now, the appellant had claimed the defence of insanity at the time of murder; no such plea was taken at the time of the trial. Aggrieved by the judgment of the trial court, the appellant had approached the High Court in Criminal Appeal No.1092 of 2003. The aforesaid appeal was dismissed by the Division Bench of the Kerala High Court by the judgment dated 21.10.2005. It is this judgment which is impugned before us in the present appeal.

2

3. We may now notice the prosecution version as it emerges through the evidence of PW1 and PW5. It was alleged that on 3.11.2000 at about 7.30 p.m.

The appellant with the intention of killing his wife, namely, Ajitha @ Poonamma had struck her on her neck with a chopper when she was in the bedroom of his house which is named `Kallumkuzhi', bearing No.289 situated in ward No. IX of Kanjikuzhy panchayat. After committing the murder, the appellant came out of the house and met PW1 and PW5 who were sitting in front of their house. PW1 is the son of PW5. At the time when the appellant approached them he was carrying his child in one arm. He asked PW5 as to whether he could hold the child. When PW5 stepped towards the appellant to take the child, he saw that the appellant was carrying a chopper in the other hand. Immediately PW1 and his father rushed into their house and closed the door. At that time the appellant was seen roaming around their house. He was trying to lay 3 down the child in a lean-to attached to their house.

At that stage, PW1 had pointed the beam of a torch on to the appellant, through the window. He saw, in the torch light, that the shirt of the appellant was blood stained and he was also carrying a blood stained chopper. PW1 then came out of his house and went to the nearby house of PW2 and narrated the entire incident to him. Thereafter PW1 and PW2 together went to the adjacent house of PW3. When they came back together, they saw that appellant had left the house of PW1. At that stage they were told by PW5 that the appellant had come after killing his wife. According to PW5, the appellant had confessed to the crime. Thereafter all the people in the nearby houses got together and went to the house of the appellant where they found that his wife Ajitha was lying on a cot in her bedroom with blood splattered all over her. They also found that there was no movement in the body of Ajitha. It is further the case of the prosecution that when all the 4 neighbours had gathered in the house of the appellant he had confessed to all of them that he had killed his wife.


4. The FIR was registered on the basis of the statement Exb.P1 made by PW1 wherein he narrated the incident as stated above. This witness PW1 has also identified M.O.1 knife which he had seen in the hand of the appellant on the evening of 3.11.2000.

PW2 also gave a similar statement. He further stated that the appellant had come to him and asked him to look after the child as he was going to the police station. He is alleged to have stated to PW2 that - "I have child in my hand. Kindly hold him. I am going to the police station."


5. PW2 further stated that the appellant had put the knife on the ground in the verandah on being asked by one of the neighbours. While putting the knife down the appellant said "till today she had been cheating upon 5 me." After putting the knife down the appellant went to the house of PW3. He is stated to have entrusted the child to PW3. Thereafter the appellant had gone to a place named Aippara City. PW4 is another neighbour who stated that the appellant had come to the house of PW1 with his 8 months old child in one hand and the knife in the other hand. He came to know about the incident when PW1 and PW2 came to his house and narrated the story. Thereafter he saw the appellant in the residential compound of Poonamakkal Thomas. He also deposed that on the request of his father and Narayan, appellant had put the knife on the floor. PW5 also corroborated the statement given by PW1 to PW4. PW6 is another witness who came to know about the incident while he was in the Aippara City. According to him, he came to know about the murder of the wife of appellant at about 8 o'clock on 3.11.2000. According to PW11, Sub-Inspector of Police Kanjikuzhi police, the appellant was produced early in the morning by PW2, 3 and 4. He was arrested by PW12, C.I. of Police.

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6. The trial court notices that the prosecution has relied on the oral evidences given by PW1 to PW12. The prosecution had also produced the blood stained chopper which had been recovered from the appellant. After examining the dead body of the deceased, inquest report was prepared by PW11 in the presence of the witnesses.

The chopper had been seized by him as per Ext.P2 Mahaska. Ext.P3 is the Mahaska prepared by him for seizure of the shirt and dhoti worn by the appellant.

These materials were produced before the court as Ext.P7 and P8. The articles recovered from the body of the deceased were produced as M.O.3 to 10 and 10(a). These included night gown, and other under garments, gold ornaments worn by the deceased at the time of the murder. All the recovered articles were sent for Forensic Examination. The Forensic Report was relied upon by the prosecution at the trial. Ext.P10 is the Forensic Science Report. This report revealed that all the items examined, contained human blood belonging to group A.

7

7. Taking note of the evidence adduced by the prosecution, the trial court noticed that Ext.P5 post mortem certificate revealed nine injuries on the body of the deceased. These injuries may be tabulated as under :-

1. Incised wound, 14x4x6 cm horizontal, on the middle of back of neck, 6 cm below occipital protuberance. The muscles of the back of neck found but and vertebral column was found cut and separated between 2nd and 3rd cervical vertebra.

Spinal cord underneath and vertebral arteries were found several.


2. Incised wound 9x2x2cm oblique, on right side of back of head upper inner end at the level of occipital protuberance and lower outer and just above right ear.


3. Incised wound 5x1x1cm oblique on right side of neck, upper outer end just below right ear and lower inner end 1cm, below right angle of mandible.


4. Incised wound, 2x1cm oblique on pine of right ear involving its entire thickness.

8

5. Incised wound 5x1x2 cm oblique on the back of chest over right shoulder blade.


6. Incised wound 2x1x0.5 cm oblique on the outer aspect of left shoulder.


7. Incised wound 3x1x0.5 cm oblique on the out aspect of left shoulder 2 cm below injury No.6.


8. Incised wound 5.5x1 cm. oblique on the back of left little finger, 3 cm above its trip with distal potion connected by skin only.


9. Incised wound, 5x4x1cm on the left palmate the root of thumb."


8. PW9, the doctor who conducted the post mortem opined that the injuries noted by him could be caused by an attack with a chopper such as M.O.1. The doctor also opined that there were wounds on palm and fingers of the deceased. This would indicate that she was defending herself, therefore, she was attacked while she was awake and not when she was asleep. The injuries noted by the doctor in Ext.P5 also indicate that the appellant had caused the death of his wife by attacking her with chopper M.O.1.

9 The trial court upon consideration of the entire evidence observed that the entire sequence of events led to the only conclusion that the appellant had killed his wife by striking her on her neck with a chopper. The trial court specifically held that it did not find any missing link fatal to the prosecution case.


9. The trial court thereafter considered the defence pleaded by the appellant under Section 84 IPC. Upon examination of the entire medical evidence, the trial court concluded that there is no material to indicate that at the time of the commission of the offence or immediately before the occurrence of the incident, the appellant was suffering from any mental illness. Although he had taken some treatment in the year 1985 for mental illness but he had fully recovered from that. Subsequently, long after that he had married the deceased. Even though they were living a disturbed married life, a child was born out of the wedlock. The child was 8 months old at the time when the crime was committed. The trial court also 10 noticed that, although the appellant was irregular, he used to take on casual jobs for his sustenance. The trial court concluded that even after taking note of the evidence produced by the defence, the conclusion was that the appellant was capable of understanding the nature of the act and the consequences thereof.


10. The High Court, in appeal, re-examined the entire issue and concluded that the evidence given by PW1 to PW5 is unimpeachable. Therefore, the conclusions reached by the trial court were duly affirmed by the Division Bench of the High Court. The defence under Section 84 was held to be not proved.

11. We have heard the learned counsel for the parties.


12. Learned counsel for the appellant submitted that the entire story is unbelievable. The appellant was living with his wife in a thickly populated locality. The houses 11 of the neighbours are in a close proximity. The defence of the appellant has been illegally discarded by the trial court as well as by the High Court. The appellant had produced expert witnesses. In support of the medical history of his mental illness, DW2 and DW4 had produced the record relied upon by them which shows that the appellant had been treated for paranoid schizophrenia, 11 days after the alleged murder. Even during the trial, the appellant had to be taken to the mental hospital on 15.11.2000.


13. According to the learned counsel, both the courts below have failed to appreciate the exact nature of the disease "paranoid schizophrenia". Such patients experience an extremely rapid change of emotion within a matter of seconds and minutes, they may be angry, depresses, perplexed, ecstatic and anxious. Therefore, it is not possible to say that at the time of the murder the appellant was in his senses.

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14. We are unable to accept the submissions made by the learned counsel for the appellant. So far as the actual physical murder is concerned, all the circumstances adverted to above, chillingly point towards the guilt of the appellant. PW1 and PW5 have clearly stated how the appellant had approached them with a chopper soaked in blood in one hand and his 8 months old son in other arm. The blood stained chopper remained in the possession of the appellant till he was asked to put the same on the ground. PW1 actually saw the blood stained chopper in the hand of the appellant when he pointed the torchlight on the appellant through the window. After entrusting the child to PW3, the appellant went away.

The dead body of his wife was discovered by the neighbours which was soaked in blood. According to the PW3 there was so much blood on the body that she seemed to have taken a bath in a pool of blood. The ocular evidence has been corroborated by medical evidence. The doctor, PW9, who conducted the post mortem, has clearly stated that the injuries which were 13 found on the body of the deceased could have been caused with a weapon which was seized from the appellant.


15. Therefore, in our opinion, both the courts below have correctly concluded that the circumstances lead to the only conclusion that the appellant has committed the murder of his wife.


16. As far as, the defence under Section 84 is concerned, we also see no reason to differ with the opinion expressed by the trial court as also the High Court. The evidence given by DW1, Assistant Surgeon of Idduki District Hospital has been rightly discarded by the High Court. It is true that DW1 had stated on the basis of the out patient register that the appellant had come for consultation. However, no records were produced as to what treatment had been given to him. Even the out patient ticket was not produced. Ultimately, this doctor admitted that he cannot say that the appellant had come 14 there for psychiatric treatment. He did not even remember the medicine which had been given to the appellant. Similarly, the evidence of Superintendent of Jail DW2 also only indicates that the appellant had been sent to Medical Health Centre. Even the evidence of the Health Centre was incomplete and wholly unreliable. The entire medical evidence produced was not sufficient to show that at the time of the commission of the murder the appellant was medically insane and incapable of understanding the nature of the consequences of the act performed by him.


17. The defence of insanity has been well known in the English Legal System for many centuries. In the earlier times, it was usually advanced as a justification for seeking pardon. Over a period of time, it was used as a complete defence to criminal liability in offences involving mens rea. It is also accepted that insanity in medical terms is distinguishable from legal insanity. In most cases, in India, the defence of insanity seems to be 15 pleaded where the offender is said to be suffering from the disease of Schizophrenia. The plea taken in the present case was also that the appellant was suffering from "paranoid schizophrenia". The term has been defined in Modi's Medical Jurisprudence and Toxicology1 as follows:

"Paranoia is now regarded as a mild form of paranoid schizophrenia. It occurs more in males than in females. The main characteristic of this illness is a well-elaborated delusional system in a personality that is otherwise well preserved. The delusions are of persecutory type. The true nature of this illness may go unrecognized for a long time because the personality is well preserved, and some of these paranoiacs may pass off as a social reformers or founders of queer pseudo- religious sects. The classical picture is rare and generally takes a chronic course.

Paranoid Schizophrenia, in the vast majority of case, starts in the fourth decade and develops insidiously. Suspiciousness is the characteristic symptom of the early stage.

Ideas of reference occur, which gradually develop into delusions of persecution. Auditory hallucinations follow which in the beginning, start as sound or noises in the ears, but later change into abuses or insults. Delusions are at first indefinite, but gradually they become fixed and definite, to lead the patient to believe that he is persecuted by some unknown person or 1 [23rd Ed. Page 1077] 16 some superhuman agency. He believes that his food is being poisoned, some noxious gases are blown into his room and people are plotting against him to ruin him. Disturbances of general sensation give rise to hallucinations which are attributed to the effects of hypnotism, electricity, wireless telegraphy or atomic agencies. The patient gets very irritated and excited owing to these painful and disagreeable hallucinations and delusions. "

The medical profession would undoubtedly treat the appellant herein as a mentally sick person. However, for the purposes of claiming the benefit of the defence of insanity in law, the appellant would have to prove that his cognitive faculties were so impaired, at the time when the crime was committed, as not to know the nature of the act. Section 84 of the Indian Penal Code recognizes the defence of insanity. It is defined as under:- "Nothing is an offence which is done by a person who at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law."

A bare perusal of the aforesaid section would show that in order to succeed, the appellant would have to prove 17 that by reason of unsoundness of mind, he was incapable of knowing the nature of the act committed by him. In the alternate case, he would have to prove that he was incapable of knowing that he was doing what is either wrong or contrary to law. The aforesaid section clearly gives statutory recognition to the defence of insanity as developed by the Common Law of England in a decision Daniel Mc Naughten2. In that case, the House of Lords formulated the famous Mc Naughten Rules on the basis of the five questions, which had been referred to them with regard to the defence of insanity. The reference came to be made in a case where Mc Naughten was charged with the murder by shooting of Edward Drummond, who was the Pvt. Secretary of the then Prime Minister of England Sir Robert Peel. The accused Mc Naughten produced medical evidence to prove that, he was not, at the time of committing the act, in a sound state of mind. He claimed that he was suffering from an 2 [1843 RR 59: 8ER 718(HL)] 18 insane delusion that the Prime Minister was the only reason for all his problems. He had also claimed that as a result of the insane delusion, he mistook Drummond for the Prime Minister and committed his murder by shooting him. The plea of insanity was accepted and Mc Naughten was found not guilty, on the ground of insanity. The aforesaid verdict became the subject of debate in the House of Lords. Therefore, it was determined to take the opinion of all the judges on the law governing such cases. Five questions were subsequently put to the Law Lords. The questions as well as the answers delivered by Lord Chief Justice Tindal were as under:- "Q.1 What is the law respecting alleged crimes committed by persons afflicted with insane delusion in respect of one or more particular subjects or persons: as, for instance, where at the time of the commission of the alleged crime the accused knew he was acting contrary to law, but did the act complained of with a view, under the influence of insane delusion, of redressing a revenging some supposed grievance or injury, or of producing some public benefit? 19 Answer "Assuming that your lordships' inquiries are confined to those persons who labour under such partial delusions only, and are not in other respects insane, we are of opinion, that, notwithstanding the party did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some public benefit, he is nevertheless punishable, according to the nature of the crime committed, if he knew, at the time of committing such crime, that he was acting contrary to law, by which expression we understand your lordships to mean the law of the land.

Q.2. What are the proper questions to be submitted to the jury when a person alleged to be afflicted with insane delusion respecting one or more particular subjects or persons, is charged with the commission of a crime (murder, for example), and insanity is set up as a defence? Q.3. In what terms ought the question to be left to the jury as to the prisoner's state of mind at the time when the act was committed? Answers - to the second and third questions That the jury ought to be told in all cases that every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that, to establish a defence on the ground of insanity, 20 it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know he was doing what was wrong. The mode of putting the latter part of the question to the jury on these occasions has generally been, whether the accused, at the time of doing the act, knew the difference between right and wrong, which mode, though rarely, if ever, leading to any mistake with the jury, is not, as we conceive, so accurate when put generally, and in the abstract, as when put as to the party's knowledge of right and wrong in respect to the very act with which he is charged. If the question were to be put as to the knowledge of the accused, solely and exclusively with reference to the law of the land, it might tend to confound the jury, by inducing them to believe that an actual knowledge of the law of the land was essential in order to lead to a conviction, whereas the law is administered upon the principle that every one must be taken conclusively to know it without proof that he does know it. If the accused was conscious that the act was one which he ought not to do, and if that act was at the same time contrary to the law of the land, he is punishable; and the usual course, therefore, has been to leave the question to the jury, whether the party accused had a sufficient degree of reason to know that he was doing an act that was wrong: and this course, we think, is correct, accompanied with such observations and explanations as the circumstances of each particular case may require.

21 Q.4. If a person under an insane delusion as to the existing facts commits and offence in consequence thereof, is he thereby excused? Answer The answer must, of course, depend on the nature of the delusion, but making the same assumption as we did before, that he labours under such partial delusion only, and is not in other respects insane, we think he must be considered in the same situation as to responsibility as if the facts with respect to which the delusion exists were real. For example, if, under the influence of his delusion, he supposes another man to be in the act of attempting to take away his life, and he kills that man, as he supposes in self- defence, he would be exempted from punishment. If his delusion was that the deceased had inflicted a serious injury to his character and fortune, and he killed him in revenge for such supposed injury, he would be liable to punishment.

Q.5. Can a medical man, conversant with the disease of insanity, who never saw the prisoner previously to the trial, but who was present during the whole trial, and the examination of all the witnesses, be asked his opinion as to the state of the prisoner's mind at the time of the commission of the alleged crime, or his opinion whether the prisoner was conscious, at the time of doing the act, that he was acting contrary to law, or whether he was labouring under any and what delusion at the time? 22 Answer We think the medical man, under the circumstances supposed, cannot in strictness be asked his opinion in the terms above stated, because each of those questions involves the determination of the truth of the facts deposed to, which it is for the jury to decide; and the questions are not mere questions upon a matter of science, in which case such evidence is admissible. But where the facts are admitted or not disputed, and the question becomes substantially one of science only, it may be convenient to allow the question to be put in that general form, though the same cannot be insisted on as a matter of right." 3 A comparison of answers to question no. 2 and 3 and the provision contained in Section 84 of the IPC would clearly indicate that the Section is modeled on the aforesaid answers.


18. This Court has on several occasions examined the standard of proof that is required to be discharged by the appellant to get the benefit of Section 84 IPC. We may make a reference here to the observation made in 3 [Archbold 2010 Ed. Pg. No. 1880-1881] 23 Gujarat4. The relevant aspects of the law and the material provisions relating to the plea of insanity were noticed and considered as follows:- " Indian Penal Code 299. Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.


84. Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.

Indian Evidence Act 105. When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code (45 of 1860) or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.


4. Shall presume.--Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such facts as proved unless and until it is disproved.

4 [AIR 1964 SC 1563] 24 Proved.--A fact is said to be `proved' when after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

Disproved.--A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.

101. Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of fact which he asserts, must prove that those facts exist.

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."

It is a fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution, therefore, in a case of homicide shall prove beyond reasonable doubt that the accused caused death with the requisite intention described in Section 299 of the Indian Penal Code. This general burden never shifts and it always rests on the prosecution.

But, as Section 84 of the Indian Penal Code provides that nothing is an offence if the 25 accused at the time of doing that act, by reason of unsoundness of mind was incapable of knowing the nature of his act or what he was doing was either wrong or contrary to law.

This being an exception, under Section 105 of the Evidence Act the burden of proving the existence of circumstances bringing the case within the said exception lies on the accused;

and the court shall presume the absence of such circumstances. Under Section 105 of the Evidence Act, read with the definition of "shall presume" in Section 4 thereof, the court shall regard the absence of such circumstances as proved unless, after considering the matters before it, it believes that said circumstances existed or their existence was so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that they did exist. To put it in other words, the accused will have to rebut the presumption that such circumstances did not exist, by placing material before the court sufficient to make it consider the existence of the said circumstances so probable that a prudent man would act upon them. The accused has to satisfy the standard of a "prudent man". If the material placed before the court such, as, oral and documentary evidence, presumptions, admissions or even the prosecution evidence, satisfies the test of "prudent man", the accused will have discharged his burden. The evidence so placed may not be sufficient to discharge the burden under Section 105 of the Evidence Act, but it may raise a reasonable doubt in the mind of a judge as regards one or other of the necessary ingredients of the offence itself. It may, for instance, raise a reasonable doubt in the mind of the judge 26 whether the accused had the requisite intention laid down in Section 299 of the Indian Penal Code. If the judge has such reasonable doubt, he has to acquit the accused, for in that event the prosecution will have failed to prove conclusively the guilt of the accused. There is no conflict between the general burden, which is always on the prosecution and which never shifts, and the special burden that rests on the accused to make out his defence of insanity."

Thereafter, upon further consideration, this Court defined the doctrine of burden of proof in the context of the plea of insanity in the following propositions:- "(1) The prosecution must prove beyond reasonable doubt that the appellant had committed the offence with the requisite mens rea; and the burden of proving that always rests on the prosecution from the beginning to the end of the trial.

(2) There is a rebuttable presumption that the appellant was not insane, when he committed the crime, in the sense laid down by Section 84 of the Indian Penal Code: the appellant may rebut it by placing before the court all the relevant evidence - oral, documentary or circumstantial, but the burden of proof upon him is no higher than that rests upon a party to civil proceedings.

(3) Even if the appellant was not able to establish conclusively that he was insane at 27 the time he committed the offence, the evidence placed before the court by the appellant or by the prosecution may raise a reasonable doubt in the mind of the court as regards one or more of the ingredients of the offence, including mens rea of the appellant and in that case the court would be entitled to acquit the appellant on the ground that the general burden of proof resting on the prosecution was not discharged."


19. It is also a settled proposition of law that the crucial point of time for ascertaining the existence of circumstances bringing the case within the purview of Section 84 is the time when the offence is committed. We may notice here the observations made by this Court in Paragraph 2 of the aforesaid judgment, it is held as follows:- "It is now well-settled that the crucial point of time at which unsoundness of mind should be established is the time when the crime is actually committed and the burden of proving this lies on the appellant."

5 [1970 (3) SCC 533] 28

20. The High Court on examination of the evidence before it, came to the conclusion that the appellant had failed to prove that he was suffering from such mental illness that would enable him to take benefit of Section 84 IPC.


21. The High Court took into consideration the totality of the circumstances and came to the conclusion that there was no evidence indicating that appellant was suffering from mental illness at the crucial time. The only evidence placed on record shows that the appellant had been treated in a Psychiatric Hospital for 13 days in the year 1985 even at that time the doctor had diagnosed the disease as psychotic disorder. The record did not indicate that the patient was suffering from such mental disability which incapacitated him to know the nature of the act that he had committed. The High Court further observed that there was no evidence to indicate that the appellant suffered from mental illness post 1985. The High Court, in our opinion, rightly concluded that the appellant was 29 capable of knowing the nature of the act and the consequences thereof on the date of the alleged incident.

Whilst he had brutally and callously committed the murder of his wife, he did not cause any hurt or discomfort to the child. Rather he made up his mind to insure that the child be put into proper care and custody after the murder. The conduct of the appellant before and after the incident was sufficient to negate any notion that he was mentally insane, so as not to be possessed of the necessary mens rea, for committing the murder of his wife.


22. In such view of the matter, we see no reason to interfere with the concurrent findings recorded by the courts below. The appeal is dismissed.

..................................J.

[B.SUDERSHAN REDDY] 30 .....................................J.

[SURINDER SINGH NIJJAR] NEW DELHI;

OCTOBER 26, 2010.

AMINA BEEVI v. THACHI & ORS. [2010] INSC 913 (27 October 2010)

Judgement

CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (CIVIL) NO. 15221 OF 2007

Amina Beevi ...... Petitioner
Versus
Thachi & Ors. ...... Respondents WITH

SPECIAL LEAVE PETITION (CIVIL) NO. 19320 of 2007

The State Bank of Travancore, Alwaye Branch, Represented by its Branch Manager ...... Petitioner
Versus
Tachil & Ors. ...... Respondents

ORDER A. K. PATNAIK, J.

1. These Special Leave Petitions have been filed against the common judgment and decree dated 28.03.2007 passed by the Kerala High Court in Second Appeal Nos. 517 of 1988 and 311 of 1988.

2. The facts very briefly are that Makkar Sahib was the owner of the suit property and in the year 1945-46 he made an oral lease of the suit property in favour of Kunjali on an annual rent. Pursuant to the oral lease, Kunjali obtained possession of the suit property and remained in possession of the suit property. Makkar Sahib died and on 24.07.1968, the legal heirs of late Makkar Sahib, namely, his wife Mariyumma, his daughter Kochu Pathu and his son Abdul Kadar executed a sale deed (Ext. A1) in respect of three acres of land out of the suit property in favour of Aisu and another sale deed (Ext. A2) in respect of two acres and one acre out of the suit property in favour of Fathima Beevi and Amina Beevi. On 29.07.1968, Kunjali executed a leasehold assignment deed (Ext. A3) in favour of Abdul Kadar. On 29.07.1968 Mariyumma, Kochu Pathu and Abdul Kadar executed a sale deed (Ext. A4) in favour of Kunjali in respect of 75 cents of land. The purchasers of the suit property under Exhibits A1 and A2, namely, Aisu, Fathima Beevi and Amina Beevi obtained loans from the State Bank of Travancore and mortgaged the properties purchased by them under Exhibits A1 and A2 in 3 favour of the Bank as security for the loan. When the loan was not repaid, the State Bank of Travancore filed a mortgage suit, O.S. No.131 of 1974, and obtained a decree for sale of the mortgaged property. In the year 1974, Mariyumma, Kochu Pathu and Abdul Kadar also sold some portions of the suit property to V.K. Kesavan and Janaky. Kunjali died leaving behind his wife Thachi, sons C.A. Sulaiman and M.A. Karim and daughters Aisha, Pathu and Howa. Thachi, Sulaiman, Aisha, Pathu and Howa (Plaintiffs) filed a suit, O.S. No.129 of 1980, against Mariyumma, Kochu Pathu, Abdul Kadar, Fathima Beevi, Amina Beevi, Aisu, V.K. Kesavan, Janaky and the State Bank of Travancore (defendant nos. 1 to 9) and the Trial Court decreed the suit declaring that the plaintiffs have leasehold right over the suit property and are entitled to recover possession of the suit property from defendants no. 1 to 9 and are also entitled to mesne profit from the date of suit till recovery of the possession or till expiry of period of 3 years whichever was earlier. Aggrieved, the State Bank of Travancore, Amina Beevi, V.K. Kesavan and Janaky filed three appeals, A.S. Nos. 111, 117 and 121 of 1986. By a judgment 4 and decree dated 30.10.1987, the Additional District Judge, Parur, dismissed the appeals. Against the judgment and decree of the Additional District Judge, Parur, Amina Beevi and the State Bank of Travancore filed Second Appeal Nos. 517 of 1988 and 311 of 1988 under Section 100 of the Code of Civil Procedure, 1908 and by the impugned common judgment and decree dated 28.03.2007, the High Court dismissed the second appeals.






3. Mr. C. S. Rajan, learned senior counsel appearing for the petitioner in S.L.P. (C) 15221 of 2007 Amina Beevi, submitted that the High Court has taken a view that Ext.A3 was a surrender of the interest of the tenant Kunjali in the suit property in favour of the landlord Abdul Kadar and such surrender of the interest of the tenant in favour of any party other than the Government was prohibited under Section 51 of the Kerala Land Reforms Act, 1963 (for short `the Act'). He submitted that a plain reading of Ext.A3 would show that it is not a surrender but an assignment by Kunjali in favour of Abdul Kadar and, therefore, the High Court was not right in coming to the conclusion that Ext.A3 was a surrender hit by 5 the statutory prohibition in Section 51 of the Act. He next submitted that in any case the fact remains that the plaintiffs in the suit, who are the legal heirs of the tenant Kunjali, had been dispossessed of the suit land and their remedy was not a suit in the civil court but an application to the Land Tribunal under Section 13A of the Act for restoration of possession. He cited the decision of this Court in Koyappathodi Puthiyedath Ahammedkutty v. State of Kerala and Others [1987 (Supp) SCC 158] in which it has been held that when a surrender is shown to have been made contrary to the provision contained in Section 51 of the Act, the tenant concerned would be entitled to restoration of possession under Section 13A of the Act.


4. Mr. Parag Tripathi, learned senior counsel appearing for the petitioner in SLP(C) 19320 of 2007, the State Bank of Travancore, submitted that proviso (a) to sub-Section (1) of Section 13A of the Act makes it clear that land sold to a bona fide purchaser is saved from the provisions of Section 13A of the Act. He submitted that Aisu, Fathima Beevi and Amina Beevi were bona fide purchasers of the suit property under Exhibits A1 and A2 and hence the purchases of land made by 6 them were protected under Proviso (a) of sub-Section (1) of Section 13A of the Act. He further submitted that in accordance with the provisions of sub-Section (3) of Section 125 of the Act, the Trial Court in the present case referred the question whether the plaintiffs were tenants in respect of the suit property to the Land Tribunal and a reading of the order passed by the Land Tribunal would show that the Land Tribunal has not properly decided the question whether the plaintiffs were tenants in respect of the suit property.


5. In reply, Mr. C.S. Vaidyanathan, learned senior counsel appearing for the plaintiffs-respondents, submitted that a plain reading of Ext.A3 would show that under Ext.A3 Kunjali has surrendered his leasehold right in favour of Abdul Kadar and therefore the High Court was right in coming to the conclusion that Ext.A3 though styled as leasehold assignment deed was actually a surrender of tenancy rights which was prohibited by Section 51 of the Act. In reply to the contention of Mr. Rajan that the only remedy of the plaintiffs-respondents was to apply to the Land Tribunal under Section 13A of the Act and not a suit in a civil court, he submitted that Section 7 13A of the Act was an additional remedy given to the tenant who is dispossessed of his land and did not bar a civil suit for declaration of right of tenancy and for recovery of the possession of land covered by the tenancy. He submitted that Aisu, Fathima Beevi and Amina Beevi who were impleaded as defendants No.4, 5 and 6 in the suit have not taken any plea in their written statement that they were bona fide purchasers of the suit property and hence the contention of Mr. Parag Tripathi that the Act protected bona fide purchasers of land does not arise for decision in this case. He relied on the order passed by the Land Tribunal to show that the Land Tribunal has gone into the evidence at length and decided that the plaintiffs-respondents were tenants in respect of the suit property.


6. The first question that we have to decide is whether the High Court was right in coming to the conclusion that Ext.A3 though styled as assignment of leasehold right was in fact a surrender of the leasehold right by lessee in favour of landlord and therefore hit by Section 51 of the Act which prohibits surrender of interest of a tenant except in favour of the 8 Government. We have perused Ext.A3, copy of which has been annexed to SLP (C) 15221 of 2007 as Annexure P3, and we find that under Ext.A3 Kunjali, who was the tenant of the suit land, has assigned his "leasehold right and possession"

and "relinquished" all his rights over the property in favour of Abdul Kadar. In substance, therefore, Ext.A3 is a surrender of leasehold or tenancy right by the lessee or the tenant in favour of landlord. Sub-Section (1) of Section 51 of the Act provides that notwithstanding anything contained in the Act, a tenant may terminate the tenancy in respect of any land held by him at any time by surrender of his interest therein but makes it clear in the proviso that no such surrender shall be made in favour of any person other than the Government. Hence, under Section 51 of the Act any surrender of his interest by the tenant to any person other than the Government is prohibited. Ext.A3, being a surrender by the tenant of his interest in favour of a person other than the Government, was in contravention of Section 51 and was void. We are, therefore, not inclined to disturb the finding of the High Court that Ext.A3 though styled as a leasehold assignment deed was 9 in fact a surrender of the interest of the tenant and was prohibited by Section 51 of the Act.


7. The second question which we are called upon to decide in this case is whether the only remedy of the plaintiffs- respondents was to apply to the Land Tribunal under Section 13A of the Act and consequently the suit filed by the plaintiffs- respondents was barred under the Act. Section 9 of the Code of Civil Procedure, 1908 provides that Civil Courts have jurisdiction to try all suits of a civil nature excepting suits which are either expressly or impliedly barred. Hence, we have to consider whether the suit filed by the plaintiffs- respondents for declaration of their tenancy rights in respect of suit land and for recovery of possession of the suit land was expressly or impliedly barred by Section 13A of the Act.


8. Sections 13A and 125 of the Act, which are relevant for deciding this question are quoted herein below:

"13A. Restoration of possession of persons dispossessed on or after 1st April, 1964 - (1) Notwithstanding anything to the contrary contained in any law, or in any contract, custom or usage, or in any judgment, decree or order of Court, where any 10 person has been dispossessed of the land in his occupation on or after the 1st day of April, 1964, such person shall, if he would have been a tenant under this Act as amended by the Kerala Land Reforms (Amendment) Act, 1969, at the time of such dispossession, be entitled subject to the provisions of this section to restoration of possession of the land:

Provided that nothing in this sub-section shall- (a) apply in any case where the said land has been sold to a bona fide purchaser for consideration before the date of publication of the Kerala Land Reforms (Amendment) Bill, 1968, in the Gazette; or (b) entitle any person to restoration of possession of any land which has been resumed under the provisions of this Act.

(2) Any person entitled to restoration of possession under sub-section (1) may, within a period of six months from the commencement of the Kerala Land Reforms (Amendment) Act, 1969, apply to the Land Tribunal for the restoration of possession of the land.

(3) The Land Tribunal may, after such inquiry as it deems fit, pass an order allowing the application for restoration and directing the applicant to deposit the compensation, if any, received by the applicant under any decree or order of Court towards value of improvements or otherwise and the value of improvements, if any effected on the land after the dispossession as may be determined by the Land Tribunal, within such period as may be specified in the order.

11 (4) On the deposit of the compensation and value of improvements as required in the order under sub- section (3), the Land Tribunal shall restore the applicant to possession of the land, if need be by removing any person who refuses to vacate the same.

125. Bar of jurisdiction of Civil Courts - (1) No Civil Court shall have jurisdiction to settle, decide or deal with any question or to determine any matter which is by or under this Act required to be settled, decided or dealt with or to be determined by the Land Tribunal or the appellate authority or the Land Board [or the Taluk Land Board] or the Government or an officer of the Government;

Provided that nothing contained in this sub- section shall apply to proceedings pending in any Court at the commencement of the Kerala Land Reforms Amendment Act, 1969.

(2) No order of the Land Tribunal or the appellate authority or the Land Board [or the Taluk Land Board] or the Government or an officer of the Government made under this Act shall be questioned in any Civil Court, except as provided in this Act.

(3) If in any suit or other proceedings any question regarding rights of a tenant or of a kudikidappukaran (including a question as to whether a person is a tenant or a kudikidappukaran) arises, the Civil Court shall stay the suit or other proceedings and refer such question to the Land Tribunal having jurisdiction over the area in which the land or part thereof is situate together with the relevant records for the decision of that question only.

12 (4) The Land Tribunal shall decide the question referred to it under sub-section (3) and return the records together with its decision to the Civil Court.

(5) The Civil Court shall then proceed to decide the suit or other proceedings accepting the decision of the Land Tribunal on the question referred to it.

(6) The decision of the Land Tribunal on the question referred to it shall, for the purposes of appeal, be deemed to be part of the finding of the Civil Court.

(7) No Civil Court have power to grant injunction in any suit or other proceeding referred to in sub- section (3) restraining any person from entering into or occupying or cultivating any land or kudikidappu or to appoint a receiver for any property in respect of which a question referred to in that sub-section has arisen, till such question is decided by the Land Tribunal, and any such injunction granted or appointment made before the commencement of the Kerala Land Reforms (Amendment) Act, 1969, or before such question has arisen, shall stand cancelled.

(8) In this Section, "Civil Court" shall include a Rent Control Court as defined in the Kerala Buildings (Lease and Rent Control) Act, 1965."


9. A plain reading of Sub-Section (1) of Section 13A of the Act quoted above would show that a person who has been dispossessed of his land in his occupation on or after 1st April, 1964 and such person would have been a tenant under the 13 Act as amended by the Kerala Land Reforms (Amendment) Act, 1969, at the time of such dispossession, would be entitled subject to the provisions of the Section to restoration of the possession of the land. It, thus, appears that any person who has been dispossessed of land under his occupation on or after 1st April, 1964 and such person would have been a tenant under the Act as amended by the Kerala Land Reforms (Amendment) Act, 1969 has been provided with a special remedy of restoration of possession of land under Section 13A of the Act. None of the sub-sections of Section 13A expressly state that a suit by a tenant for recovery of possession of land which was under his occupation was barred. Hence a suit for recovery of possession by a tenant is not "expressly" barred.

10. We cannot also hold that such a suit was "impliedly"

barred by Section 13A of the Act because of what is provided in Section 125 of the Act. Sub-Section (1) of Section 125 of the Act quoted above states that no Civil Court shall have jurisdiction to settle, decide or deal with any question or to determine any matter which is by or under this Act required to be settled, decided or dealt with or to be determined by the 14 Land Tribunal and sub-Section (3) of Section 125 states that if in any suit or other proceedings any question regarding rights of a tenant including a question as to whether a person is a tenant arises, the Civil Court shall stay the suit or other proceeding and refer such question to the Land Tribunal having jurisdiction over the area in which the land or part thereof is situate together with the relevant records for the decision of that question only. Sub-Section (4) of Section 125 further states that the Land Tribunal shall decide the question referred to it under sub-Section (3) and return the records together with its decision to the Civil Court and under sub- section (5) of Section 125 the Civil Court shall then proceed to decide the suit or other proceedings accepting the decision of the Land Tribunal on the question referred to it. These provisions make it amply clear that in any suit regarding rights of a tenant, the rights of the tenant including a question whether a person is a tenant will have to be referred by the Civil Court to the Land Tribunal and after the Land Tribunal decides the question, the Civil Court will decide the suit in accordance with the decision of the Land Tribunal.

15 Considering these clear provisions of Section 125 of the Act, we are of the considered opinion that the suit of the plaintiffs- respondents for declaration that they were tenants in respect of the suit property and for recovery of possession of the suit property from the defendants and for mesne profit was not barred either expressly or impliedly by Section 13A of the Act.

This Court has also not held in Koyappathodi Puthiyedath Ahammedkutty v. State of Kerala and Others (supra) cited by Mr. Rajan that the tenant cannot institute a suit in a Civil Court for declaration of his tenancy in respect of a land and for recovery of possession of the land covered by the tenancy.


11. We may now take up the contention of Mr. Tripathi that the Land Tribunal, to which the claim of tenancy of the plaintiffs-respondents was referred, has not considered the claim properly. We have perused the order dated 13.11.1984 of the Land Tribunal, Perumbavoor, a copy of which has been annexed as Annexure R-2 in I.A. No.2 of 2010 in SLP (C) No.19320 of 2007, and we find that the Land Tribunal has dealt with the oral evidence of several witnesses and a large number of documents filed on behalf of the parties and has 16 come to the conclusion that the father of the plaintiffs- respondents and after him the plaintiffs-respondents had leasehold rights in the light of the available evidence. We also find that the Trial Court has accepted this finding of the Land Tribunal upholding the leasehold right of the plaintiffs- respondents and has decided Issue No.1 in the suit accordingly. The finding of the Land Tribunal and the Trial Court on this point is a finding of fact based on oral and documentary evidence and we are not inclined to disturb this finding in this Special Leave Petition.


12. We also find that no issue was raised before the Trial Court whether Aisu, Fathima Beevi and Amina Beevi were bona fide purchasers of the suit property and therefore the Trial Court has not recorded a finding on this issue. In the absence of any finding on this issue of fact, we do not think it necessary to decide in this case whether a tenant could or could not recover land which was under his occupation from a bona fide purchaser by virtue of what is provided in Proviso (a) to Sub-Section (1) of Section 13A of the Act.

17

13. In the result, we hold that there is no merit in these Special Leave Petitions and we accordingly dismiss the same.

No costs.

..........................J.

(D. K. Jain) ..........................J.

(A. K. Patnaik) New Delhi, October 27, 2010.


D. HANUMANTH SA & ORS. v. STATE OF KARNATAKA & ORS. [2010] INSC 914 (27 October 2010)


Judgement
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 17-20 OF 2005
D. HANUMANTH SA & ORS. ....... Appellants
Versus
STATE OF KARNATAKA & ORS. ......Respondents

WITH CIVIL APPEAL NO. 22 OF 2005

Dr. Mukundakam Sharma, J
1. By filing the present appeals the appellants have challenged the validity of the notification issued under Section 4 of the Land Acquisition Act, 1894 [hereinafter referred to as "the Act") and also the notification issued under Section 6 of the Act whereby the respondents sought to acquire land admeasuring 3 acres 34 guntas situated in Kengeri Village and Hobli, Bangalore, Karnataka.





2. Initially appellants filed writ petitions registered as Writ Petition Nos. 20083-20085 of 1993 before the Karnataka High Court challenging the validity of the notification issued under Section 4 invoking the emergency clause. The High Court of Karnataka, while issuing notice, granted stay.

Subsequently, an order dated 30.08.1993 was passed in the writ petition regarding the statement/submission on behalf of the State Government that they would not proceed with the acquisition proceeding of invoking the emergency provision under the Act. Consequent to the same, the appellants herein were given opportunity to file objections.


3. The appellants thereafter filed detailed objections contending inter alia that the vast extent of land that is already possessed by the Karnataka State Road Transport Corporation [for short `KSRTC'] and some of the State- 2 owned land is still laying vacant and, therefore, the purpose of acquiring the land of the appellants for formation of link road is unjustified and that the same cannot be said to be required for formation of link road. The appellants also contended that despite the aforesaid objection filed and a report submitted by the Land Acquisition Officer in favour of the claimants, the State Government issued a final notification under Section 6(1) of the Act by holding that the land belonging to the appellants are required for the purpose of workshop and providing residential quarters to its employees.


4. Being aggrieved by the aforesaid action on the part of the State Government in issuing a notification under Section 6 of the Land Acquisition Act, the appellants filed Writ Petition Nos. 25361-25364 of 1994 and 25264 of 1994 before the Karnataka High Court challenging the legality and the validity of the preliminary and final notifications.


5. The Single Judge of the Karnataka High Court, by his judgment and order dated 01.02.2000, allowed the said writ 3 petitions holding that in the proceedings prepared by the State Government, the purpose of acquisition was stated to have a link road and in the final notification under Section 6 of the Act, the purpose of acquisition having been shown as completely different, the entire purpose was not justified and tenable. The said fact was also stated to be so, and had been held as unjustified by the Land Acquisition Officer. By so holding the learned Single Judge of the Karnataka High Court allowed the writ petitions and quashed the said notifications issued under Section 4 and Section 6 of the Land Acquisition Act.


6. Being aggrieved by the said judgment and order the respondent filed a writ appeal before the High Court of Karnataka. By judgment and order dated 02.07.2003 the Division Bench of the Karnataka High Court allowed the appeal filed by the State Government and set aside the judgment and order of the learned Single Judge holding that the acquisition for the land was for a public purpose and that there was no ambiguity in the two notifications issued under Sections 4 and 6 of the Act.

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7. Being aggrieved by the said judgment and order passed by the Division Bench of the High Court the present appeals have been filed by the claimants-appellants on which we have heard learned counsel appearing for the parties.


8. In the light of the submissions made before us we now proceed to decide the contentions raised before us by the counsel appearing for the parties. Counsel appearing for the appellants submitted that the notification issued by the respondent under Section 4 was vague and the purpose for which the land was sought to be acquired as disclosed from the entire records of the proposed acquisition including the said notification was different than what was sought to be stated in the notification under Section 6. It was also submitted that the Government had failed to give detailed reasons for issuing the said notifications to satisfy that the land was required for public purpose, particularly when the Land Acquisition Officer had given his reasons to indicate that the purpose for which the land is sought to be acquired was not justified in the facts and circumstances of the case.

In order to appreciate the aforesaid contentions raised, we 5 have considered all the notifications relevant to the facts and circumstances of the case and also relevant records useful for our purpose.


9. In the notification issued under Section 4(1) which is dated 14.10.1992, it is specifically stated that the State of Karnataka required the land under acquisition for a specific public purpose, viz., for the benefit of Karnataka State Road Transport Corporation. The part of the notification invoking the provisions of Section 17(4), i.e., applying the urgency requirement of the Government was set aside by the writ court which became final and binding and we are not required to address the aforesaid issue. But, so far as the requirement of the land for public purpose is concerned, the same was necessarily for a public purpose, viz., for the benefit of Karnataka State Road Transport Corporation.

10.Counsel appearing for the appellants however drew our attention to the proceedings regarding acquisition of 7 acres 15 guntas of land. We have perused the said copies of the proceedings also. In the said proceedings, it was stated that 6 in order to meet the increasing traffic in the surrounding area of Bangalore city, and also with a view to provide better transport service to the public, it is proposed by the Government to establish a large workshop and city bus depot in the said land and also for establishment of residences to workers, training centre and others are also proposed to be undertaken and in order to construct/form the road the said land is required. The said proceedings on careful analysis would also indicate that the land which was sought to be acquired also figured in a comprehensive plan for construction of a road as also workshop and residential building of the staff of KSRTC. The said fact also came to be reiterated by the State Government by filing an affidavit wherein it is stated that the entire land in dispute is in fact required not only for making an approach road but also for building a workshop and staff residential quarters.

11.The aforesaid reasons and the purpose for which the land was sought to be acquired is definitely of a public character and therefore, the respondent-State Government, in our considered opinion, is fully competent to issue such a 7 notification under Section 4 as also under Section 6 of the Land Acquisition Act. Counsel appearing for the appellant at one stage also drew our attention to the fact that subsequently, another notification came to be issued by the Karnataka Industrial Areas Development Board stating that the land as mentioned in the letter dated 16.12.2004 which is annexed as Annexure R-5 is being acquired by the Karnataka Industrial Areas Development Board. The said land was sought to be acquired by issuing notification under the State Act, viz., under Section 28(1) and Section 28(4) of the State Act.

12.A preliminary notification was issued by the said authority, viz., Development Board, including land admeasuring 39 guntas from Survey No. 128/1 and 34 guntas from Survey No. 128/2. The said letter itself also indicates that subsequently, a final notification came to be issued under Section 28(4) of the State Act only for 34 guntas covered by Survey No. 128/2. Incidentally, the land falling under Survey No. 128/2 was not notified either under Section 4 or 8 under Section 6 under the notifications dated 14.10.1992 and 28.03.1994, respectively.

13.So far as 39 guntas covered by Survey No. 128/1 is concerned, which is sought to be acquired as indicated from letter dated 10.12.2004, we find that the same is not included in the final notification. A bare perusal of the notifications issued under Sections 4(1) and 6 of the Act would indicate that the land covered by Survey No. 128/1 was a part of the said notification but since the same came to be excluded in the final notification under Section 28(4), the contentions raised by the counsel appearing for the appellants that the said land stood acquired for a different purpose and, therefore, the purpose for which the land was sought to be acquired under Section 4 and 6 was unjustified, is not tenable.

14.Even otherwise, if land already stands acquired by the Government and if the same stands vested in the Government there is no question of acquisition of such a land by issuing a second notification, for the Government 9 cannot acquire its own land. The same is by now settled by various decision of this Court in a catena of cases. In State of Orissa v. Brundaban Sharma, reported at 1995 Supp (3) SCC 249, this Court has held that the Land Acquisition Act does not contemplate or provide for the acquisition of any interest belonging to the Government in the land on acquisition; This position was reiterated in a subsequent decision of this Court in Meher Rusi Dalal v. Union of India, reported at (2004) 7 SCC 362. In paragraphs 15 and 16 of the said judgment, this Court has held that the High Court clearly erred in setting aside the order of the Special Land Acquisition Officer declining a reference since it is settled law that in land acquisition proceedings the Government cannot and does not acquire its own interest.

While laying down the aforesaid law, this Court has referred to its earlier decision in the case of Collector of Bombay v.

Nusserwanji Rattanji Mistri reported at (1955) 1 SCR 1311.

15.However, on a close scrutiny of the records we find that same is not the case in the present case at hand. It cannot 10 be said that the land which stood acquired under the notification issued under Sections 4 and 6 of the Act are in any manner connected with the notifications issued by State Government for Karnataka Industrial Areas Development Board for Bangalore Mysore Infrastructure Corridor Project and even assuming a part of the said land is now sought to be acquired for a different purpose to that extent, the same cannot be said to be a proper acquisition as the land already stands acquired under a different notification issued by a separate authority under separate provisions of law.

16.In that view of the matter, we find no merit in these appeals and the same are disposed of by this common judgment and order. Parties are left to bear their own costs.

......................................J.

[Dr. Mukundakam Sharma] ......................................J.


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M/S.ANGEL BABY PRODUCTS PVT.LTD. v. NEW OKHLA INDUST.DEV.AUTH. & ORS. [2010] INSC 915 (27 October 2010)

Judgement IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (CIVIL) NO.10940 OF 2008

M/S.ANGEL BABY PRODUCTS PVT.LTD
VERSUS
NEW OKHLA INDUSTRIAL DEVELOPMENT

ALTAMAS KABIR, J.
1. In this Special Leave Petition, the Petitioner has challenged the decision of the Allahabad High Court dismissing Writ Petition No.16819 of 2003, filed by one Hira Lal Gupta and another praying for quashing of the notices dated 1.5.2002, 25.7.2002, 2 6.9.2002 and 22.3.2003 sent by the authorities of The New Okhla Industrial Development Authority, hereinafter referred to as `NOIDA', imposing penalty against the writ petitioners for failing to get the lease deed for commercial plot no.1/1-A, Sector 27, NOIDA, executed within the stipulated period of 120 days from the date of allotment of the plot. The said plot measuring 2970 sq. meters was initially allotted to the Writ Petitioner No.1, Hira Lal Gupta, at the rate of Rs.15,552/- per sq. meter. Later on, a revised allotment order was issued to Shri Gupta reducing the area of the plot from 2970 sq. meters to 2590 sq. meters and the consideration for allotment of the plot was proportionately reduced. Subsequently, disputes arose in regard to an irrigation drain which existed on a portion of the said plot, although, the existence thereof was not indicated in the brochure published by NOIDA. According to the Writ Petitioners, since the said problem was not 3 attended to, the lease deed could not be submitted for execution within the prescribed period of 120 days which attracted imposition of penalty.






2. On 24th March, 2002, the Petitioners made a representation to the Chief Executive Officer, NOIDA, for waiver of penalty on the ground that since the exact area and location of the plot was different from that specified in the brochure, the delay in execution of the lease deed could not be attributed to the Writ Petitioners and, accordingly, penalty could not be imposed against them. It appears that the Chief Executive Officer, NOIDA, waived the penalty imposed on the Writ Petitioners and granted them further two months' time to complete the execution of the lease deed.

However, before the expiry of the said period of two months, the NOIDA authorities had written to the Writ Petitioners on 1st May, 2002, indicating that penalty would be charged with effect from 22nd November, 2001. The Writ Petitioners responded to 4 the said letter by submitting a representation dated 15th May, 2002, praying for waiving the penalty on account of the drain passing through plot and also for providing any alternative plot in lieu of the plot already allotted.


3. The Writ Petitioners were informed on 22nd March, 2003, that the Board of NOIDA had rejected their proposal for waiver of the penalty and that the same would have to be paid within 30 days, otherwise their allotment would be cancelled. At the initial stage when the Writ Petition was filed, the High Court had passed an interim order on 18th April, 2003, staying the operation of imposition of penalty against the Writ Petitioners. Ultimately, after considering the submissions made on behalf of the respective parties, the High Court took note of Clause 25 of the Scheme indicating that the plots were to be sold on "as is where is" basis, leading to the presumption that the Writ Petitioners had knowledge of the existing irrigation drain on the 5 plot. The High Court also took note of the power reserved to the NOIDA authorities to vary the area of the plot, which the allottee was bound to accept as final. The High Court also took into consideration the submissions made on behalf of the Board of NOIDA that in its 113th meeting held on 10th February, 2003, the Petitioners' representation was finally rejected but despite the same they did not deposit the penalty and insisted upon the waiver of penalty and interest.


4. Having arrived at the conclusion that the Writ Petitioners had knowledge of all the terms and conditions, status, location and other details about the plot, which was advertised for allotment, the High Court felt that there was no merit in the Writ Petition and dismissed the same. The interim order passed in the matter was also vacated.


5. Mr. Jayant Bhushan, learned Senior Advocate, who appeared for the Petitioner Company, submitted 6 that having auctioned the plot in question without proper specifications and contrary to the description in its brochure, it was not within the competence of the NOIDA authorities to impose penalty on the Petitioner Company for not completing the execution of the lease deed within the stipulated period of 120 days from the date of allotment. In fact, in the aforesaid background, a representation was made by Shri Hira Lal Gupta to the Chief Executive Officer, NOIDA, indicating that he wanted to transfer the plot in question to the Petitioner Company, wherein he and his son are Directors. Since the said formalities were likely to take some time, a prayer was made to the aforesaid Authority to extend the time for depositing the instalments and for making the application in Form 37-I. In the same communication, a further prayer was made to waive the penalty due to the delay in execution of the lease deed. It is on that basis that Shri Hira Lal 7 Gupta was granted two months' time, without penalty, for completion of formalities.


6. The said extension came to be considered by the Officer on Special Duty (G), who interpreted the same to mean that the Petitioner Company had been given two months' time without penalty only for change of constitution, but that the interest on the outstanding instalments, penal interest and penalty, whatever was outstanding, would have to be recovered, as it was. On 1st May, 2002, the Deputy Manager (C), NOIDA, wrote to Shri Hira Lal Gupta in regard to his request for effecting the change relating to the transfer of the plot to the Petitioner Company. In his said letter, the said Authority requested Shri Gupta to submit the documents indicated in the said letter in order to effect the change of constitution in regard to the allottee of the plot in question. In addition, Shri Gupta was informed that on his failure to complete execution of the lease deed, a sum of 8 Rs.62,18,088.00 had become payable by way of late fee for the period between 22nd November, 2001 to 30th April, 2002. Furthermore, after the said period, penalty of Rs.38,863.05 per day would also be payable. The Petitioner was requested to deposit the penalty amount for completion of Form 37-I for change of constitution and execution of the lease deed.


7. As indicated hereinabove, the imposition of penalty is the bone of contention in this Special Leave Petition.


8. Mr. Bhushan reiterated the submissions made before the High Court that on 24th March, 2002, when two months' time had been granted to the Petitioner Company by the Chief Executive Officer, NOIDA, for completion of the formalities for change of constitution, the Officer on Special Duty had acted illegally by passing an order on 11th April, 2002, which was within three weeks from the date of 9 the order of the Chief Executive Officer, demanding payment of penal interest and penalty. Mr. Bhushan contended that during the extended period of two months, the Officer on Special Duty was not entitled to demand payment of penalty when, in fact, payment of such penalty had been specifically waived by the Chief Executive Officer.


9. On the other hand, learned counsel for the Respondent Authority, supported the order of the Officer on Special Duty on the ground that the period for execution of the lease had been extended by a period of two months by the Chief Executive Officer in view of the prayer made by Shri Hira Lal Gupta to transfer the allotment in the name of the Petitioner Company, wherein both he and his son were Directors. Learned counsel reiterated the submissions made before the High Court that the order of the Chief Executive Officer, NOIDA, extending the time for completion of the execution of the lease deed would have to be considered in 10 that context only. He urged that notwithstanding the time extended for completion of constitutional changes, the liability for payment of penalty did not stop on account of the order of the Chief Executive Officer which continued to remain operative after the expiry of 120 days from the date of allotment and the Petitioner Company was, therefore, liable to pay both the penalty charges as also the lease rent at the rate of Rs.38,863.05 per day. Mr. Ravindra Kumar specifically referred to the subsequent order of the Chief Executive Officer dated 22nd July, 2002, by which he directed that the land (2590.86 sq. meters) shown in the brochure be given to Shri Hira Lal Gupta and penalty be recovered as per rules. He urged that the effect of the earlier order passed by the Chief Executive Officer on 24th March, 2002, stood superseded by the subsequent order, whereby penalty was directed to be recovered from the Writ Petitioners, according to the rules.

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10. It was also reiterated that since the Petitioner Company had decided to invest a huge sum of money in the allotted land, it is difficult to accept that the Petitioner Company or its Directors would not have made enquiries as to the nature of the land which was being allotted to them. In other words, it has to be held that the Writ Petitioners were fully aware of the existence of the municipal drain on the land and absence of knowledge thereof was nothing but a ploy on the part of the Petitioner Company to avoid its responsibility regarding payment of penalty for non-compliance of the conditions to complete execution of the lease deed within 120 days from the date of allotment of the plot. Learned counsel submitted that the position stood further compounded by the fact that under Clause 25 of the general terms and conditions spelt out in the brochure, it was clearly indicated that the allotment of the land was subject to variations in 12 the area of the plot and that the same would have to be accepted by the allottees on "as is where is"

basis.


11. Mr. Ravindra Kumar submitted that no case had at all been made out for interference with the orders passed by the High Court dismissing the Writ Petition.


12. For the reasons hereinafter following, we are unable to accept Mr. Jayant Bhushan's submissions questioning the order passed by the Officer on Special Duty dated 11th April, 2002, and the various notices subsequently issued on the basis thereof, demanding payment of penalty despite the order of the Chief Executive Officer waiving imposition of such penalty for the delay in execution of the lease deed.


13. The materials on record indicate that there had been correspondence exchanged between the parties with regard to the land allotted and the 13 area thereof on account of the existence of the municipal drain either on the plot or in its vicinity. Shri Hira Lal Gupta had also made a request for the plot allotted in his name to be transferred in the name of the Petitioner Company in which he and his son were Directors. Since the same was likely to take some time for completion of the formalities, a specific prayer was made to serve the penalty due to delay in the execution of the lease deed. In such background, the Chief Executive Officer, NOIDA, extended the period for completion of the formalities relating to the constitutional change by a period of two months without penalty from 24th March, 2002. Before the said period could expire, the Officer on Special Duty, on a misunderstanding of the order passed by the Chief Executive Officer, NOIDA, indicated by his order dated 11th April, 2002, that since the Chief Executive Officer had given two months' time without penalty only for change of constitution, 14 interest on the outstanding instalments, penal interest and penalty, were liable to be recovered from the Writ Petitioners. To add to the confusion, a further order was passed by the Officer on Special Duty (G) on 26th April, 2002, directing that steps be taken in terms of his earlier order dated 11th April, 2002, and indicating that two months' time given to the Writ Petitioners was for completion of formalities for change of the name of the allottee.


14. Up to this stage, the case of the Petitioner Company for waiver of penalty can be accepted, but the subsequent correspondence which followed between the parties and the failure of the Petitioner Company and Shri Hira Lal Gupta to complete the execution of the lease deed even within the extended time of two months, indicate that neither Shri Gupta nor the Petitioner Company had any inclination to complete the formalities for execution of the lease deed pursuant to the change 15 in the name of the allottee from Shri Hira Lal Gupta to the Petitioner Company.


15. From the materials on record and the subsequent correspondence beginning with the letter dated 1st May, 2002, written by the Deputy Manager (C), NOIDA, it is apparent that the Petitioner Company and Shri Hira Lal Gupta were given a great degree of latitude to complete the transaction. In fact, meetings of the Committee had been convened on 23rd October, 2002 and 26th November, 2002, in which Shri Hira Lal Gupta appeared and made submissions for waiver of the penalty but on the basis of the record, the Committee rejected Shri Gupta's submissions and Shri Gupta was subsequently informed of the decision of the Committee which was approved at a meeting of the Authority convened on 15th February, 2003, under the Chairmanship of the Additional Chief Executive Officer, NOIDA. Even if initially a case may have been made out on behalf of the Petitioner Company that the execution of the 16 lease deed could not be completed on account of the mis-description of the plot and in view of the prayer for change in the name of the allottee, on account of the subsequent conduct of the Petitioner Company and Shri Gupta, we are not inclined to interfere with the order of the High Court or the decision of the NOIDA relating to imposition of penalty and interest. However, we are also not inclined to accept the interpretation given by the Officer on Special Duty to the order passed by the Chief Executive Officer on 24th March, 2002, and, accordingly, we direct that in calculating the penalty and interest as payable under the agreement entered into between the parties, the said period of two months from the date of the order dated 24th March, 2002, shall be excluded.


16. With the aforesaid modification of the order passed by the Chief Executive Officer on 22nd July, 2002 and the subsequent resolution of the NOIDA 17 taken at the meeting convened on 15th February, 2003, the Special Leave Petition stands dismissed.

17. There will, however, be no order as to costs.

................................................J.

(ALTAMAS KABIR) ................................................J.