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Wednesday, October 31, 2012

whether removing tin sheets and making cement slab amounts to permanent construction or not – the lower court correctly held that it amounts to permanent constructions , where as High court negatived the same, where as the Apex court set aside the High court order and confirm the Lower court order



                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                       CIVIL APPEAL NO.  7710  OF 2012
                 (Arising out of S.L.P. (C) No.4629 of 2008)

Purushottam Das Bangur & Ors.   …Appellants
      Versus
Dayanand Gupta                  …Respondent

                               J U D G M E N T
1.      Leave granted.
2.      This appeal arises out of a judgment and order passed  by  the  High
Court of Calcutta whereby Civil First Appeal No.290 of  1986  filed  by  the
respondent-tenant has been allowed, the judgment and decree  passed  by  the
trial Court set aside and the suit for  eviction  filed  by  the  plaintiff-
appellant against the defendant-respondent dismissed.
3.      A residential premise comprising two rooms with  a  gallery  situate
at the first floor bearing no.95-A, Chittaranjan Avenue, Calcutta and  owned
by Gauri Devi Trust of which the appellants are trustees was let out to  the
respondent-tenant on a monthly rental of Rs.225/-.  One  of  the  conditions
that governed the jural  relationship  between  the  parties  was  that  the
tenant shall not make any  additions  or  alterations  in  the  premises  in
question without obtaining the prior permission of the landlord in  writing.
Certain differences appear to have arisen between the  parties  with  regard
to the mode of payment of rent as also with regard to repairs, sanitary  and
hygiene  conditions  in  the  tenanted  property  which  led  the  landlord-
appellant to terminate the tenancy  of  respondent  in  terms  of  a  notice
served upon the latter under Section 106 of the  Transfer  of  Property  Act
read with Section 13 (6) of West Bengal Premises Tenancy Act,  1956.   Since
the respondent-tenant did not oblige,  the  plaintiff-appellant   instituted
Ejectment Suit No.391 of 1976 in the City Civil  Court  at  Calcutta  asking
for eviction of the former inter alia on the ground that respondent-  tenant
had illegally and unauthorisedly removed the corrugated  tin-sheet  roof  of
the kitchen and the  store  room  without  the  consent  of  the  appellant-
landlord and replaced  the  same  by  a  cement  concrete  slab  apart  from
building a permanent brick and mortar passage which did not  exist  earlier.
These additions and alterations were, according to the  plaintiff-appellant,
without the consent and permission of the Trust and,  hence,  violative  not
only of the provisions of clauses (m), (o) and (p) of  Section  108  of  the
Transfer of Property Act, 1882 but also the  conditions  stipulated  in  the
lease agreement executed between the parties.  Eviction  of  the  respondent
was also sought on the ground that the respondent  and  his  family  members
were using the  passage  constructed  by  them  for  creating  nuisance  and
peeping into the bedroom of Shri Bharat Kumar Jethi, another  tenant  living
on the second floor of the premises.
4.      The defendant-respondent contested the suit primarily on the  ground
that his tenancy had not been terminated in terms of  the  notice  allegedly
issued by the landlord and that there was no violation of the provisions  of
clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act.   A
Court  Commissioner  deputed  by  the  trial  Court  carried  out  a   local
inspection of the suit premises on  12th  July,  1978  in  presence  of  the
parties.  The  Commissioner  formulated  five  different  points  for  local
inspection and answered the same in the report submitted to the Court.   One
of the aspects on which the  Commissioner  made  a  report  related  to  the
existence of a passage leading to the concrete roof of the kitchen  and  the
store space.  The Commissioner appears to have found that  the  kitchen  and
store space had a concrete cemented  plastered  roof  with  a  small  window
inside the kitchen.
5.      Long after the Commissioner’s report  was  submitted  to  the  trial
Court, the tenant filed an additional written statement in which he for  the
first time took the stand that although he was inducted into  the  premises,
comprising two rooms and two small rooms with  corrugated  tin-sheet  for  a
roof, the latter required replacement  on  account  of  the  tin-sheet  roof
getting worn out.  It was further submitted that it  was  only  on  repeated
demands of the defendant-tenant that the  landlord  had  replaced  the  said
corrugated tin-sheet by putting a cement concrete slab over the kitchen  and
store room. He further alleged that he  had  not  made  any  alterations  or
additions or committed any act contrary to  clauses  (m),  (o)  and  (p)  of
Section 108 of the Transfer of Property Act.
6.      On the pleadings of the parties, the trial Court raised as  many  as
eight issues in the suit and allowed parties to adduce  their  evidence.  In
support of his case  the  plaintiff  examined  four  witnesses  while  three
witnesses were examined by the defendant-tenant. A careful appraisal of  the
evidence so  adduced  led  the  trial  Court  to  the  conclusion  that  the
plaintiff had made out a case for the grant of a  decree  for  ejectment  of
the respondent-tenant.  The  trial  Court  in  the  process  held  that  the
removal of the tin-sheet roof over  the  kitchen  and  store  room  and  its
replacement with a concrete slab was carried out  by  the  respondent-tenant
and not by the plaintiff-trust.  In coming to that conclusion,  one  of  the
circumstances which  the  trial  Court  mentioned  was  the  fact  that  the
defendant had not made any whisper in the first written statement  filed  by
him about the construction of the concrete roof having  been  undertaken  by
the landlord.  The story that the landlord had replaced the tin  roof  by  a
concrete slab was propounded  belatedly  and  for  the  first  time  in  the
supplementary written statement. The trial Court observed:
         “Lastly, it must not be lost sight of that when the defendant first
         filed the written statement there was no whisper from the  side  of
         the defendant that the construction was made by  the  landlord  for
         the convenience of the tenants.  This story was first propounded by
         the convenience of the tenants.  This story was first propounded by
         the defendant by filing an additional  written  statement  in  1983
         i.e. about seven years after the institution  of  the  suit.   This
         belated plea of the defendant should be taken  with  the  grain  of
         salt.”


7.      The trial Court accordingly held that it  was  the  defendant-tenant
who had made a permanent structural change in the premises in  violation  of
the conditions stipulated in the  lease  agreement  and  in  breach  of  the
provisions of Section 108 of the Transfer of Property Act.  The trial  Court
further held that the tenant had not, while doing so, obtained  the  written
consent of the landlord.  The trial Court also found that the  legal  notice
for determining the tenancy of the respondent-tenant had  been  served  upon
him and accordingly decreed the suit.
8.      Aggrieved by the judgment and decree passed against him, the tenant-
respondent herein appealed to the High Court of Calcutta  which  appeal  has
been allowed by the Division Bench of that  Court  in  terms  of  the  Order
impugned before us. While the High Court has not disturbed  the  finding  of
fact recorded by the trial Court that the replacement of the tin-sheet by  a
concrete slab was undertaken by the respondent-tenant, it has  reversed  the
view taken by the trial Court on the ground that  any  such  replacement  of
the roof did not tantamount to violation of clauses  (m),  (o)  and  (p)  of
Section 108 of the Transfer of Property Act. The High Court held that  since
the replacement of the tin-sheet  roof  by  cement  concrete  slab  did  not
result in addition of the accommodation available to the tenant, the act  of
replacement  was  not  tantamount  to  the  construction  of   a   permanent
structure.  The  replacement  instead  constituted  an  improvement  of  the
premises in question, observed the High Court.  In support  the  High  Court
placed reliance upon the decisions of this  Court  in  Om  Prakash  v.  Amar
Singh  AIR 1987 SC 617 and Waryam Singh v. Baldev Singh (2003) 1 SCC 59 .
9.      The High Court also relied upon an earlier decision  of  that  Court
in Ratanlal Bansilal & Ors. v. Kishorilal Goenka & Ors.  AIR  1993  Cal  144
and held that unless a case of waste or damage is proved, there  can  be  no
violation of clauses (m), (o), (p) of the  Transfer  of  Property  Act.  The
High Court held that proof of waste and damage because of  the  construction
of a cement  concrete  roof  over  the  kitchen  and  store  space  and  the
construction of a brick-built passage for reaching the  roof  of  that  area
was completely absent in the instant case.  The High Court, on  that  basis,
set aside the judgment of the trial Court and dismissed the  suit  filed  by
the appellant.
10.     Section 13 of the West Bengal  Premises  Tenancy  Act  1956,  starts
with a non-obstante clause and forbids passing of an  order  or  decree  for
possession of any premises by any  Court  in  favour  of  the  landlord  and
against the tenant except on one or more of the grounds stipulated  therein.

11.     Among other grounds stipulated in Section  13  of  the  Act  is  the
ground that the landlord can sue  for  eviction  of  the  tenant  where  the
tenant or any person residing in the premises let to  the  tenant  has  done
any act contrary to the provisions of clauses (m), (o)  or  (p)  of  Section
108 of the Transfer of Property Act, 1882. Section 13 (1) (b) reads thus:
         “13. Protection of  tenant  against  eviction.—(1)  Notwithstanding
         anything to the contrary in any other law, no order or  decree  for
         the recovery of possession of any premises shall  be  made  by  any
         court in favour of the landlord against a tenant except on  one  or
         more of the following grounds, namely:
         (a)    *       *       *
         (b) where the tenant or any person residing in the premises let  to
         the tenant has done any act contrary to the  provisions  of  clause
         (m), clause (o) or clause (p) of Section 108  of  the  Transfer  of
         Property Act, 1882 (4 of 1882);”




12.     Clauses (m), (o) and (p) of Section 108 of the Transfer of  Property
Act referred to in clause 1 (b) of Section 13 (supra) may also be  extracted
at this stage :
          “108. Rights and liabilities of lessor and lessee.—In the  absence
         of a contract or local usage to the contrary, the  lessor  and  the
         lessee of immovable property, as against one another, respectively,
         possess the rights and are subject to the liabilities mentioned  in
         the rules next following, or such of them as are applicable to  the
         property leased:
         *      *       *
         (m) the lessee is bound to keep, and  on  the  termination  of  the
         lease to restore, the property in as good condition as  it  was  at
         the time when he was put in possession, subject only to the changes
         caused by reasonable wear and tear or irresistible  force,  and  to
         allow the lessor and his agents, at all reasonable times during the
         term, to enter upon the property and inspect the condition  thereof
         and give or leave notice of any defect in such condition; and, when
         such defect has been caused by any act or default on  the  part  of
         the lessee, his servants or agents, he is bound  to  make  it  good
         within three months after such notice has been given or left;


         *      *       *
         (o) the lessee may use the property and its products (if any) as  a
         person of ordinary prudence would use them if they  were  his  own;
         but he must not use, or permit another to use, the property  for  a
         purpose other than that for which it was leased, or  fell  or  sell
         timber, pull down or damage buildings belonging to the  lessor,  or
         work mines or quarries not open  when  the  lease  was  granted  or
         commit any other act which is destructive or permanently  injurious
         thereto;


         (p) he must  not,  without  the  lessor's  consent,  erect  on  the
         property  any  permanent   structure,   except   for   agricultural
         purposes;”




13.     The appellant has in the case at hand pressed  into  service  clause
(p) of Section 108 (supra) inasmuch as,  according  to  the  appellant,  the
respondent-tenant had without his consent erected on the demised property  a
permanent structure which rendered him liable to eviction under  Section  13
(1) (b) extracted above. The question, however, is whether  the  alterations
which the respondent-tenant is found  by  the  Courts  below  to  have  made
tantamount to erection of a “permanent  structure”  within  the  meaning  of
clause (p) of Section 108 of the Act  (supra).   The  expression  “permanent
structure” has not been  defined  either  under  the  West  Bengal  Premises
Tenancy Act, 1956 or in the Transfer of Property Act, 1882.  The  expression
has all the same fallen for interpretation by the Courts in the  country  on
several occasions. We may briefly refer to some of those  pronouncements  at
this stage.
14.     In Venkatlal G. Pittie & Anr. v. Bright Bros. Pvt.  Ltd.  (1987)   3
SCC 558, the landlord alleged  that  the  tenant  had  without  his  consent
raised a permanent structure in the demised premises.  The  trial  Court  as
also the first appellate Court had taken  the  view  that  the  construction
raised by the tenant was permanent in  nature.   The  High  Court,  however,
reversed the said finding aggrieved whereof the landlord  came  up  to  this
Court in appeal. This Court referred to several  decisions  on  the  subject
including a decision of the High Court  of  Calcutta  in  Suraya  Properties
Private Ltd. v. Bimalendu Nath Sarkar AIR 1965 Cal  408  to  hold  that  one
shall have to look at the nature of the structure, the purpose for which  it
was intended to be used and take a whole perspective as to  how  it  affects
the enjoyment and durability of the building etc. to come  to  a  conclusion
whether or not the same was a permanent structure. This Court  approved  the
view taken in Suraya Properties Private Ltd. v. Bimalendu  Nath  Sarkar  AIR
1965 Cal 408 and Surya Properties Private Ltd.  &  Ors.  v.  Bimalendu  Nath
Sarkar & Ors. AIR 1964  Cal  1,  while  referring  to  the  following  tests
formulated by Malvankar J.  in  an  unreported  decision  in  Special  Civil
Application No.121 of 1968:
         “(1) intention of the party who put  up  the  structure;  (2)  this
         intention  was  to  be  gathered  from  the  mode  and  degree   of
         annexation; (3) if the structure cannot be  removed  without  doing
         irreparable damage to the  demised  premises  then  that  would  be
         certainly one of the circumstances to be considered while  deciding
         the question of intention. Likewise, dimensions  of  the  structure
         and (4) its removability had to be taken  into  consideration.  But
         these were not the sole tests. (5)  The  purpose  of  erecting  the
         structure is  another  relevant  factor.  (6)  The  nature  of  the
         materials used for the structure and (7) lastly the  durability  of
         the structure”.




15.     In Surya Properties Private Ltd. & Ors. v. Bimalendu Nath  Sarkar  &
Ors. AIR 1964 Cal 1 a Special Bench  of  the  High  Court  of  Calcutta  was
examining the meaning of the expression “permanent structure”  appearing  in
Clause (p) of Section 108 of the Transfer of Property Act, 1882.  The  Court
held that whether a particular structure is a permanent structure or not  is
a question that depends on the facts of each case  and  on  the  nature  and
extent of the particular structure as also the  intention  and  purpose  for
which the structure was erected. No hard and fast rule, declared the  Court,
could be laid down for determining what would be a permanent  structure  for
the purposes of Section 108 (p) of the Transfer of Property Act.   When  the
very same case came up for final adjudication on merits  before  a  Division
Bench of the High Court of Calcutta, the High Court in its order dated  20th
March, 1964 reported in Suraya Properties Private  Ltd.  v.  Bimalendu  Nath
Sarkar AIR 1965 Cal 408 held that the expression “permanent  structure”  did
not mean ‘everlasting’. The word “permanent” had been  used  to  distinguish
it from “temporary” and that while a lessee has the power to raise any  type
of temporary structure, he has no power to raise a permanent structure.  The
Court held that on a true  construction  of  Section  108  (p)  Transfer  of
Property Act the words “permanent structure” could  only  mean  a  structure
that lasts till the end  of  the  term  of  the  lease  and  does  not  mean
“everlasting” nor does it mean a structure which would last 100 years or  50
years.  The Court observed:
         “In  all  these  cases  condition  (p)  will  operate.  The  phrase
         “permanent structure” does not mean “ever lasting”.  But  the  word
         “permanent” has been used to distinguish  it  from  “temporary”.  A
         lessee has the power to raise any type of temporary structure,  but
         he  has  no  power  to  raise  a  permanent  structure.  The   word
         “permanent” is also a relative term, because the  absolute  meaning
         of the word “permanent” is “ever lasting”.  But  we  cannot  accept
         the meaning if  the  word  “permanent”  is  a  relative  term,  the
         question is, - relative of what?  The answer immediately is  –  for
         purposes of Section 108(p) relative  to  the  term  of  the  issue.
         Therefore, the word “permanent” means “which lasts till the end  of
         the term of the lease” and does not mean “ever lasting” nor does it
         mean “which would last 100 years or 50 years”. The term, as  stated
         above, is a relative one and the relation here is to the period  of
         the lease.  There may be a lease from month to month or  from  year
         to year and we do not know when the lease is  going  to  terminate.
         But the meaning of the words “permanent structure”  would  be  that
         the lessee intended that he  would  enjoy  the  structure  that  he
         raises as long as he be continuing in possession. That  period  may
         be definite, that period may be indefinite.  But that period is the
         period of the  lease  and  the  person,  namely,  the  lessee,  who
         constructs the structure, should have an intention  to  use  it  as
         long as he remains a lessee.”


16.     Applying the above to the case before it, the High Court  held  that
the tenant in that case had constructed a kitchen which he intended  to  use
till the time he remained in occupation.  The  Court  found  that  the  case
before it was not one where the tenant had constructed the structure  for  a
special purpose like a marriage in the family. Any structure which was  used
for any such limited period or definite event, function  or  occasion,  even
if made of bricks and mortar would not amount  to  building  or  erecting  a
permanent structure.  The Court observed:
         “A person raises a struct (sic) for the purpose of  a  marriage  in
         the family. There he intends to use it only during the occasion and
         has no intention to use it thereafter and  intends  to  remove  the
         structure thereafter. We cannot say that it would  be  a  permanent
         structure even  if  it  is  made  of  brick  and  mortar.   In  the
         circumstances, of this case, the lessee has said that he wanted  to
         use it as a kitchen.  He never says that the kitchen  was  required
         for a particular purpose temporarily.  Therefore, we get  from  the
         evidence of  the  tenant  that  the  tenant  intended  to  use  the
         structure as a kitchen during the continuance of the lease, because
         the tenant requires a kitchen  as  long  as  the  tenant  uses  the
         premises and as he wants, to use it as a kitchen,  he  sufficiently
         express his intention to use it as a kitchen during the term of his
         tenancy which in this case is not definite. Therefore, for purposes
         of Section108(p) of the Transfer of Property  Act,  we  would  hold
         that the kitchen raised must be considered to be  for  a  permanent
         purpose.”


17.     To sum up, no hard and fast rule can be prescribed  for  determining
what is permanent or what is  not.  The  use  of  the  word  ‘permanent’  in
Section 108  (p)  of  the  Transfer  of  Property  Act,  1882  is  meant  to
distinguish the structure from what  is  temporary.   The  term  ‘permanent’
does not mean that the structure must last forever.  A structure that  lasts
till the end of the tenancy can be treated as a  permanent  structure.   The
intention  of  the  party  putting  up  the  structure  is  important,   for
determining whether it is permanent or temporary.  The nature and extent  of
the structure is similarly an important circumstance  for  deciding  whether
the structure is permanent or temporary within the meaning  of  Section  108
(p) of the Act.  Removability of the structure without  causing  any  damage
to the building is yet another test that can be applied while  deciding  the
nature of the structure.  So also the durability of the  structure  and  the
material used for erection of the same will help  in  deciding  whether  the
structure is permanent or temporary.   Lastly  the  purpose  for  which  the
structure is intended is also an important factor that cannot be ignored.
18.     Applying the above tests to the instant case the structure  was  not
a temporary structure by any means.   The  kitchen  and  the  storage  space
forming part of the demised premises was meant to be used till  the  tenancy
in favour of the respondent-occupant subsisted.  Removal  of  the  roof  and
replacement thereof by a concrete slab was also meant to continue  till  the
tenancy subsisted. The intention of the tenant while replacing the tin  roof
with concrete slab, obviously was not to make a  temporary  arrangement  but
to provide a permanent solution for the alleged failure of the  landlord  to
repair the roof. The construction  of  the  passage  was  also  a  permanent
provision made by the tenant  which  too  was  intended  to  last  till  the
subsistence of the lease. The concrete slab was a permanent feature  of  the
demised premises and could not be easily  removed  without  doing  extensive
damage to the remaining structure.  Such being the position, the  alteration
made by the tenant fell within the  mischief  of  Section  108  (p)  of  the
Transfer of Property Act  and,  therefore,  constituted  a  ground  for  his
eviction in terms of Section 13(1)(b) of the West  Bengal  Premises  Tenancy
Act, 1956.
19.     We may at this stage refer to the decision of this  Court  in  Ranju
alias Gautam Ghosh v. Rekha Ghosh and Ors.  (2007)  14  SCC  81  where  this
Court found that cutting of a collapsible gate by  5/6”  and  replacing  the
same without the consent and permission of the landlord  was  tantamount  to
violation of Section 108 (p) of the  Transfer  of  Property  Act  read  with
Section 13 (1)(b) of West Bengal Premises Tenancy Act,  1956.   It  is  thus
immaterial whether the structure has resulted in creating additional  usable
space for the tenant who carries out  such  alteration  and  additions.   If
addition of usable space was ever intended to be  an  essential  requirement
under Section 108 (p) of the Act, the Parliament could have easily  provided
so. Nothing of this sort has been done even in Section 13  (1)  (b)  of  the
State Act   which clearly shows that addition of space is not the  test  for
determining whether the structure is permanent or temporary.
20.     Reliance  upon  the  decisions  of  this  Court  in  Brijendra  Nath
Bhargava and Anr. v. Harsh Wardhan and Ors. (1988) 1 SCC 454, Om Prakash  v.
Amar Singh and Ors. (1987) 1 SCC 458, Waryam Singh v. Baldev Singh (2003)  1
SCC 59 and G. Reghunathan v. K.V. Varghese (2005) 7 SCC 317 do  not  in  our
opinion advance the case of the respondent.  In  Brijendra  Nath  Bhargava’s
case (supra) this Court was dealing with a case  arising  out  of  Rajasthan
Premises (Control of Rent and Eviction) Act, 1950. Section  13  (1)  (c)  of
the said Act required the landlord to prove that  the  tenant  had,  without
his permission, made or permitted to be made any construction which  had  in
the opinion of the Court, materially altered the premises or was  likely  to
diminish the value thereof.  Section 13 (1)(c)  of  the  Rajasthan  Premises
(Control of Rent and Eviction)  Act,  1950   is  to  the  following  effect:

         “13(1) (c) that the  tenant  has  without  the  permission  of  the
         landlord made or permitted to be made any such construction as,  in
         the opinion of the court, has materially altered the premises or is
         likely to diminish the value thereof”


21.     The above provision is materially different from  the  provision  of
Section 13(1)(b) of the West Bengal Premises Tenancy Act 1956 applicable  in
the present case which does not require the landlord  to  prove  that  there
was any material alteration in the premises  or  that  such  alteration  was
likely to diminish  the  value  thereof.  The  decision  in  Brijendra  Nath
Bhargava’s case (supra), is therefore, distinguishable and  would  not  have
any application to the case at hand.
22.     In Om Prakash’s case (supra) this Court  was  dealing  with  a  case
under Section 14 (c) of the U.P. Cantonment Rent  Control  Act,  1952  which
reads as under:

           “14.  Restrictions  on  eviction.—No  suit  shall,  without   the
         permission of the District Magistrate, be filed in any civil  court
         against a tenant for his eviction from any accommodation except  on
         one or more of the following grounds, namely:
         (c) that the tenant has, without the permission  of  the  landlord,
         made or permitted to be  made  any  such  construction  as  in  the
         opinion of the court has materially altered the accommodation or is
         likely substantially to diminish its value.”




23.     A perusal of the above would show the language employed  therein  is
materially different from the provision of  Section  13(1)(b)  of  the  West
Bengal Premises Tenancy Act 1956 with which we are concerned in the  present
case. In the case at hand the landlord is not required  to  prove  that  the
construction have been materially altered  or  is  likely  to  diminish  its
value as was the position in Om Prakash’s case (supra).
24.     In Waryam Singh v. Baldev Singh (2003)  1  SCC  59  this  Court  was
dealing with a case under Section  13(2)(iii)  of  East  Punjab  Urban  Rent
Restriction Act, 1949 which was to the following effect:

         “13. Eviction of tenants.—(1)  *       *       *
         (2) A landlord who seeks to evict his tenant  shall  apply  to  the
         Controller for a direction in that behalf. If the Controller, after
         giving the tenant a reasonable opportunity of showing cause against
         the applicant, is satisfied—
         *      *       *
         (iii) that the tenant has committed such  acts  as  are  likely  to
         impair materially the value or utility of the  building  or  rented
         land,
         *      *       *”




25.     It is evident from the above that this provision was different  from
the language employed in  Section  13(1)(b)  of  the  West  Bengal  Premises
Tenancy Act 1956. The ratio of that case also, therefore, does not lend  any
support to the respondent.  Same is true even in regard to the  decision  in
G. Reghunathan’s case (supra) where this Court was dealing with an  eviction
petition under Section 11(4)(ii) of the Kerala  Buildings  (Lease  and  Rent
Control) Act, 1965 which was to the following effect:

          “11. (4) A landlord may apply to the Rent  Control  Court  for  an
         order directing the tenant to put the landlord in possession of the
         building—
         (i)    *       *       *
         (ii) if the tenant uses the building in such a manner as to destroy
         or reduce its value or utility materially and permanently;”




26.      The  above  provision  is  also  materially  different   from   the
provisions with which we are concerned in the present  case.  The  ratio  of
that case does not, therefore, have any application to the question  whether
the structure raised by the respondent was a permanent structure within  the
meaning of Section 108 (p) of the Transfer of Property Act.   In Om  Pal  v.
Anand Swarup (dead) by Lrs. (1988) 4 SCC 545 also  this  Court  was  dealing
with a case under the East Punjab Urban Rent  Restriction  Act,  1949  which
makes material impairment of the property  an  important  consideration  for
purposes of determining whether the tenant has  incurred  the  liability  on
the premises leased to him.
27.     In the result, therefore, we allow this appeal, set aside the  order
passed by the High Court and restore that of the  trial  Court.   Respondent
is, however, given one year’s time to vacate the premises in his  occupation
subject to his filing an undertaking on usual terms within four  weeks  from
today. The grant of time to vacate the premises is further  subject  to  the
condition that the respondent shall either pay directly  to  the  appellants
or deposit in the trial Court compensation of the premises @ Rs.1500/-  p.m.
from 1st October, 2012 till the date of vacation. The deposit shall be  made
by the 15th of every succeeding calendar  month  failing  which  the  decree
shall become executable by the Court.
                                                  ……………………………………….……….…..…J.
                                                               (T.S. Thakur)




                                                   ……………………..…………………..…..…J.
                                                          (Gyan Sudha Misra)
New Delhi
October 31, 2012

Whether the CESTAT has discretionary power under Section 129A (5) of the Customs Act, 1962 to condone the delay caused in filing the appeal under Section 129D(3) [sic, 129D(4)] of the said Act, when there was sufficient cause available to appellant for not filing it within the prescribed period before the Appellate Authority”. = Any delay in presentation of appeal under Section 129A is condonable by the Tribunal by virtue of sub-section (5) thereof. The Tribunal has been invested with the same power for consideration of the applications under Section 129D(4) if it is satisfied that there was sufficient cause for not presenting such application within prescribed period as the provisions relating to the appeals to the Tribunal have been made applicable to such applications. In Fairgrowth Investments Ltd.4, the question raised before this Court was whether the Special Court constituted under the Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992 (for short, ‘1992 Act’) has power to condone the delay in filing a petition under Section 4(2) of the Act. Dealing with the said question, the Court considered various provisions of the Limitation Act, including Sections 5 and 29(2), and ultimately it was held that the provisions of the Limitation Act had no application in relation to a petition under Section 4(2) of the 1992 Act and the prescribed period was not extendable by the Court.- In light of the above discussion, we hold that it is competent for the Tribunal to invoke Section 129A(5) where an application under Section 129D(4) has not been made within the prescribed time and condone the delay in making such application if it is satisfied that there was sufficient cause for not presenting it within that period. 21. In view of the above, the appeal must fail and it fails and is dismissed with no order as to costs.


                                                                  REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION


                    CIVIL  APPEAL NO.   7696      OF 2012
                 (Arising out of SLP (C ) No. 4356 of 2011)




        M/s Thakker Shipping P. Ltd.                      ….
        Appellant




                                   Versus






        Commissioner of Customs (General)
         ….Respondent






                                  JUDGMENT






        R.M. Lodha, J.


                Leave granted.
        2.      The High Court answered in the affirmative   the  following
        question:


                    “Whether  the  CESTAT   has  discretionary  power  under
                    Section 129A (5) of the Customs Act,  1962   to  condone
                    the delay caused in  filing  the  appeal  under  Section
                    129D(3) [sic, 129D(4)] of the said Act, when  there  was
                    sufficient cause  available to  appellant for not filing
                    it within the prescribed  period  before  the  Appellate
                    Authority”.


        3.      The facts leading to  the  present  appeal  are  these.   A
        container was intercepted by M & P Wing of Commissioner of  Customs
        (Preventive), Mumbai  on  11.01.2001.   It  was  found  to  contain
        assorted electrical and electronic goods of  foreign  origin.   The
        said goods were imported by  M/s  Qureshi  International   and  the
        cargo was cleared from Nhava Sheva.  The clearance of the goods was
        handled by  M/s Thakker Shipping P. Ltd., the  appellant,  referred
        to as the Custom  House  Agent  (‘CHA’  for  short).   On  physical
        verification, the value  of  seized  cargo  was  estimated  at  Rs.
        77,10,000/- as local market value as against the declared value  of
        Rs. 10,03,690/-.  The  importer  could  not  be  interrogated.   On
        search of  premises  of CHA, the books relating  to  import  export
        clearance were  not found for verification.  In the   statement  of
        Vijay Thakker, proprietor of the CHA, recorded  under  Section  108
        of the Customs Act, 1962 (for short, ‘the Act’), he  accepted  that
        he attended the import clearance work and introduced  the  importer
        to the overseas suppliers  and bankers for   financial  assistance;
        the  bill of entry for the clearance  of  subject  goods  had  been
        filed without proper description and correct value and he failed to
        inform the Customs Officers about the subject goods, despite having
        attended the examination of 5%   goods   prior  to  the  clearance.
        Accordingly, the inquiry officer recorded his findings.
        4.      Initially, the appellant’s CHA   licence was  placed  under
        suspension pending inquiry under  Regulation  23  of  Custom  House
        Agent Licencing Regulations, 2004   but the suspension  order   was
        set aside by the Customs, Excise and Service Tax Appellate Tribunal
        (for short, ‘Tribunal’) and CHA licence was restored.  The  inquiry
        under Regulation 23, however, proceeded against the CHA on  diverse
        charges.  The Commissioner  of  Customs  (General)  Mumbai  by  his
        order  in original dated  21.07.2004 dropped  the proceedings under
        Regulation 23 by rejecting the findings of the inquiry officer.
        5.      The Committee of Chief Commissioners of Customs (for short,
        ‘the Committee’) constituted  under sub  section  (1B)  of  Section
        129A of the  Act  called  for  and  examined  the  records  of  the
        proceedings leading to order in original dated 21.07.2004 passed by
        the Commissioner of Customs  (General)  Mumbai   (for  short,  ‘the
        Commissioner’)  for  satisfying  itself  as  to  the  legality  and
        propriety of the said order.    The Committee on consideration   of
        the entire matter  directed  the  Commissioner   to  apply  to  the
        Tribunal for determination of the  following  points,  namely;  (1)
        whether taking into  consideration   the  facts  and  circumstances
        noticed in the order, the order of  the  Commissioner  was  legally
        correct and proper;   and (2)  whether by an  order  under  Section
        129B of the Act, the Tribunal should set  aside the  order  of  the
        Commissioner dropping the proceedings against the CHA.
        6.       The Commissioner, accordingly,  made an application  under
        Section 129D(4)  of the Act  before  the  Tribunal.   As  the  said
        application could not be made within the prescribed period and  was
        delayed by 10 days, an application for condonation of    delay  was
        filed with a  prayer for condonation.  The Tribunal on  28.11.2005,
        however, rejected  the application for  condonation  of  delay  and
        consequently  dismissed the appeal by the following brief order:


                 “This appeal has been filed  by the applicant  Commissioner
                 in pursuance of Order of Review passed by  a  Committee  of
                 Chief Commissioners.  In the application for condonation of
                 delay filed by the applicant  Commissioner,  a  prayer  has
                 been made for condoning delay of 10 days.  In the  case  of
                 CCEx. Mumbai vs. Azo Dye Chem-2000 (120) ELT 201  (Tri-LB),
                 Larger Bench of the Tribunal has  held  that  the  Tribunal
                 has no power to condone the delay  caused  in  filing  such
                 appeals by the Department beyond the prescribed  period  of
                 three months.  Even though  the  said  decision  was  in  a
                 central Excise case, the ratio of this decision is  equally
                 applicable to  Customs cases  since  the  legal  provisions
                 under both the enactments are similar.
                 2.  Accordingly,  following  the ratio  of  Azo   Dye  Chem
                    (Supra), we have no option but to reject the application
                    for condonation of  delay.   We  order  accordingly  and
                    consequently, the appeal also stands dismissed”.

        7.      This appeal raises the question, whether  it  is  competent
        for the Tribunal to invoke Section 129A(5)  of  the  Act  where  an
        application  under  Section  129D(4)  has  not  been  made  by  the
        Commissioner within the prescribed time and condone  the  delay  in
        making  such  application  if  it  is  satisfied  that  there   was
        sufficient cause for not presenting it within that period.
        8.      Learned counsel for the appellant  submitted  that  Section
        129D(4)  of the Act was  self  contained  and  if  the  application
        contemplated therein was not made within the prescribed period, the
        Tribunal has no power or competence  to  condone  the  delay  after
        expiry of the prescribed period.  In support of  his  arguments  he
        relied upon a larger Bench decision of the Customs, Excise and Gold
        (Control) Appellate Tribunal (‘CEGAT’)  in Commissioner of  Central
        Excise v. Azo Dye Chem[1].  He also placed heavy  reliance  upon  a
        three-Judge Bench decision of this Court in Commissioner of Customs
        and Central Excise v. Hongo India Pvt. Ltd. and Another[2]. Learned
        counsel  for the appellant also placed reliance upon  decisions  of
        this Court in Delhi Cloth and General Mills Co. Ltd.  v.  State  of
        Rajasthan and Ors.[3], Fairgrowth Investments Ltd. v.  Custodian[4]
        and UCO Bank and Anr. v. Rajinder Lal Capoor.[5]
        9.               On  the  other  hand,   Mr.  R.P.  Bhatt,  learned
        senior counsel for the respondent, supported the view of  the  High
        Court in passing the impugned order.  He submitted that the  answer
        to the question under consideration was dependent  on  construction
        of Sections 129D and 129A of the Act.
        10.      Section 129D (omitting the  parts not relevant)  reads:
                 “S.129D. -Power of  Committee  of  Chief  Commissioners  of
                 Customs or Commissioner of Customs to pass certain  orders.
                 – (1) The Committee of Chief Commissioners of Customs  may,
                 of its own motion, call for and examine the record  of  any
                 proceeding  in  which  a  Commissioner  of  Customs  as  an
                 adjudicating authority has passed  any  decision  or  order
                 under this Act for the purpose of satisfying itself  as  to
                 the legality or propriety of any such decision or order and
                 may, by order, direct such Commissioner ... to apply to the
                 Appellate    Tribunal  …  for  the  determination  of  such
                 points arising out of the  decision  or  order  as  may  be
                 specified  by  the  Committee  of  Chief  Commissioners  of
                 Customs in its order;
                 … ……………………………………………………………………..
      . ….. ……………………………………………………………
      . The Committee of Chief Commissioners  of  Customs    …  shall  make
        order under sub-section (1) …. within a period of three months from
        the  date  of  communication  of  the  decision  or  order  of  the
        adjudicating authority;
      .  Where  in  pursuance  of  an  order  under  sub-section  (1)    ….
        Commissioner of Customs  makes  an  application  to  the  Appellate
        Tribunal  …. within three months from the date of communication  of
        the order under sub-section (1)  …. such application shall be heard
        by the Appellate Tribunal  …. as   if  such  applications  were  an
        appeal made against the  decision  or  order  of  the  adjudicating
        authority  and  the  provisions  of  this  Act  regarding  appeals,
        including the provisions of sub-section (4) of Section 129A  shall,
        so far as may be, apply to such application.
      . …………………………………………………………………”




        We may clarify that sub-sections (3) and (4) of Section  129D  have
        been amended from time to time.  What has been reproduced above are
        the provisions existing at the relevant time.


                   11. Section  129A  (omitting  the   parts  not  relevant)
                       reads:
                 “S.129. - Appellate Tribunal. –
                 (1) ………………………………………………………………..
                 (2) …………………………………………………………..
                 (3) Every appeal under this section shall be  filed  within
                 three months from the date on which the order sought to  be
                 appealed against is communicated  to  the  Commissioner  of
                 Customs, or as the case may be, the other party  preferring
                 the appeal.
                 (4)On receipt of notice that an appeal has  been  preferred
                 under this section, the party against whom the  appeal  has
                 been preferred may, notwithstanding that he  may  not  have
                 appealed against such order  or  any  part  thereof,  file,
                 within forty-five days of the  receipt  of  the  notice,  a
                 memorandum of cross-objections verified in such  manner  as
                 may be specified by rules made in this behalf  against  any
                 part of the order  appealed  against  and  such  memorandum
                 shall be disposed of by the Appellate  Tribunal  as  if  it
                 were an appeal presented within the time specified in  sub-
                 section (3).
                 (5) The Appellate Tribunal may admit an  appeal  or  permit
                 the filing of a memorandum of cross-objections after expiry
                 of the relevant period referred to in  sub-section  (3)  or
                 sub-section  (4),  if  it  is  satisfied  that  there   was
                 sufficient cause for not presenting it within that period”.



        12.      Section 129D(4) makes it clear that where an application is
        made by the Commissioner to the Tribunal in pursuance  of  an  order
        under sub-section (1) within a prescribed period from  the  date  of
        communication of that order,  such application shall be heard by the
        Tribunal  as if  it was an appeal made against the decision or order
        of  the adjudicating authority and the provisions regarding  appeals
        under  Section  129A  to  the  Tribunal,  in  so  far  as  they  are
        applicable, would be applicable to such  application.   The  crucial
        words  and expressions in  Section 129D(4) are, “such  application”,
        “heard”, “as if such application were an appeal” and “so far as  may
        be”.   The expression “such application”, inter alia,  is  referable
        to the application made by the  Commissioner  to  the   Tribunal  in
        pursuance of an order under sub-section (1)   of Section 129D.   The
        period prescribed in Section 129D for making  application  does  not
        control the expression  “such  application”.   It  is  difficult  to
        understand how an application made under Section 129D(4) pursuant to
        the order passed under sub-sections (1) or (2)  shall  cease  to  be
        “such application”  merely because  it  has  not  been  made  within
        prescribed  time.   If  the  construction   to   the   words   “such
        application”  is  given  to  mean  an  application  filed   by   the
        Commissioner before the Tribunal within the prescribed period  only,
        the subsequent expressions “heard”, “as if such an application  were
        an appeal’” and   “so far as may be” occurring in Section 129D(4) of
        the Act may be rendered ineffective.   The view of the larger  Bench
        of the CEGAT  in Azo Dye Chem1  and the reasons in  support  thereof
        do  not commend to us.  We are unable to accept the view  adumbrated
        by the CEGAT.   The  clear  and  unambiguous  provision  in  Section
        129D(4) that the application made therein  shall  be  heard  by  the
        Tribunal as if it was an appeal made against the decision  or  order
        of  the  adjudicating  authority  and  the  provisions  of  the  Act
        regarding  appeals,   so  far  as  may  be,   shall  apply  to  such
        application leaves no manner of doubt that the provisions of Section
        129A (1) to (7)  have been mutatis mutandis made  applicable,   with
        due  alteration   wherever  necessary,  to  the  applications  under
        Section 129D(4).

        13.      From the plain language of Section  129D(4),  it  is  clear
        that  Section 129A has been incorporated in Section  129D.  For  the
        sake of brevity, instead of repeating  what  has  been  provided  in
        Section 129A as regards the appeals to the Tribunal,   it  has  been
        provided that  the  applications  made  by  the  Commissioner  under
        Section 129D(4) shall be heard as if they were appeals made  against
        the  decision  or  order  of  the  adjudicating  authority  and  the
        provisions  relating  to  the  appeals  to  the  Tribunal  shall  be
        applicable in so far as they may  be  applicable.   Consequentially,
        Section 129A(5) has become integral part of Section 129D(4)  of  the
        Act.   In other words, if the Tribunal  is satisfied that there  was
        sufficient cause for not presenting the  application  under  Section
        129D(4)  within prescribed period,  it  may  condone  the  delay  in
        making such application and hear the same.

        14.       Parliament  intended  entire  Section  129A,  as  far   as
        applicable, to be supplemental to Section 129D(4)  and that  is  why
        it provided that the provisions  relating  to  the  appeals  to  the
        Tribunal shall be applicable to the applications made under  Section
        129D(4).  The expression, “including the provisions  of  sub-section
        (4) of Section 129A”  is by way of clarification  and  has  been  so
        said expressly to remove any doubt about the  applicability  of  the
        provision relating to cross objections   to  the  applications  made
        under Section 129D(4)  or  else  it  may  be  said  that  provisions
        relating to appeals to the Tribunal have been  made  applicable  and
        not the cross objections.   The use of expression  “so  far  as  may
        be” is to bring  general provisions   relating  to  the  appeals  to
        Tribunal  into Section 129D(4).  Once the provisions relating to the
        appeals to the Tribunal have been made applicable,  Section  129A(5)
        stands incorporated in Section 129D(4)  by way of legal fiction  and
        must be given effect to.  Seen thus, it becomes clear that  the  Act
        has given express   power to  the  Tribunal  to  condone   delay  in
        making the application under Section 129D(4) if it is satisfied that
        there was sufficient  cause  for  not   presenting  it  within  that
        period.

        15.      We do not think that any useful purpose will be  served  in
        discussing the cases  cited by the learned counsel for the appellant
        in detail.   In none of these cases, the question  which has come up
        for decision in  the  present  appeal  arose.   We  shall,  however,
        briefly refer to these decisions.

        16.                In  Hongo  India  Pvt.  Ltd2,  the  question  for
        consideration before this Court was whether the High Court had power
        to condone the delay in presentation of  the  reference  application
        under unamended Section 35-H(1) of  the  Central  Excise  Act,  1944
        beyond the prescribed period by applying Section 5 of the Limitation
        Act, 1963.  Sub-section   (1)  of  Section  35-H,  which  was  under
        consideration before this Court,  read as follows:

                 “35-H.  Application to High Court. – (1)  The  Commissioner
                 of Central Excise  or  the  other  party  may,  within  one
                 hundred and eighty days of the date upon which he is served
                 with notice of an order under Section  35-C  passed  before
                 the 1st day of July, 2003 (not  being  an  order  relating,
                 among other things, to the determination  of  any  question
                 having a relation to the rate of duty of excise or  to  the
                 value of goods for purposes of assessment), by  application
                 in the prescribed form, accompanied, where the  application
                 is made by the other party, by a fee of two hundred rupees,
                 apply to the High Court to direct the  Appellate   Tribunal
                 to refer to the High Court any question of law arising from
                 such order of the Tribunal”.




        This Court observed that except providing a period of 180  days  for
        filing reference application to the High Court, there was  no  other
        clause for condoning the delay if reference was made beyond the said
        prescribed period.  Sections 5 and 29(2) of the Limitation Act  were
        noted.  This Court then held that the language  used in Sections 35,
        35-B, 35-EE, 35-G and 35-H makes the position clear that  an  appeal
        and reference  to the High Court should be made within 180 days only
        from the date of communication of the decision or order and  in  the
        absence of any clause condoning  the  delay  by  showing  sufficient
        cause after the prescribed period, there was complete  exclusion  of
        Section 5 of the Limitation Act.  In  conclusion  this  Court   held
        that the time limit prescribed  under  Section  35-H(1)  to  make  a
        reference  to the High Court was absolute  and unextendable  by  the
        Court under Section 5 of the Limitation Act.  In the  present  case,
        as noted above, the  provisions  relating  to  the  appeals  to  the
        Tribunal have been made applicable to  an  application   made  under
        Section  129D(4)   and  it  has  been  further  provided  that  such
        application shall be heard as if  it was an appeal made against  the
        decision or order of the  adjudicating  authority.    Any  delay  in
        presentation of appeal under  Section  129A  is  condonable  by  the
        Tribunal by virtue of sub-section (5)  thereof.   The  Tribunal  has
        been  invested  with  the  same  power  for  consideration  of   the
        applications under Section 129D(4) if it is satisfied that there was
        sufficient  cause  for  not  presenting  such   application   within
        prescribed  period as the provisions relating to the appeals to  the
        Tribunal have been made applicable  to  such  applications.    Hongo
        India Pvt. Ltd2   does not help the appellant at all.

        17.      In Delhi Cloth and General Mills Co. Ltd3.  the concept  of
        legal fiction has been explained.  This Court observed,  “the  legal
        consequences cannot be deemed nor, therefrom,  can the  events  that
        should have preceded it.  Facts may be deemed and,   therefrom,  the
        legal consequences that follow”.

        18.      In   Fairgrowth  Investments  Ltd.4,  the  question  raised
        before this Court was whether the Special  Court  constituted  under
        the Special Court (Trial  of Offences Relating  to  Transactions  in
        Securities) Act, 1992 (for  short, ‘1992 Act’) has power to  condone
        the delay in filing a petition under   Section  4(2)   of  the  Act.
        Dealing  with  the  said  question,  the  Court  considered  various
        provisions of the Limitation Act, including Sections  5  and  29(2),
        and ultimately it was held that the provisions of the Limitation Act
        had no application in relation to a petition under Section  4(2)  of
        the 1992 Act and the prescribed period was  not  extendable  by  the
        Court.

        19.      In UCO Bank.5, this Court restated,  what has  been  stated
        earlier with regard to interpretation of statutes,  that  the  court
        must give effect to purport and object of the enactment.
        20.     In light of the  above  discussion,  we  hold  that  it  is
        competent for  the Tribunal to  invoke  Section  129A(5)  where  an
        application under Section 129D(4) has  not  been  made  within  the
        prescribed time and condone the delay in making such application if
        it is satisfied that there was sufficient cause for not  presenting
        it within that period.
        21.     In view of the above, the appeal must fail and it fails and
        is dismissed with no  order as to  costs.
                                                 …………………..J.
                                                   (R.M. Lodha)


                                                 …………………..J.
                                                  (Anil R. Dave)
        NEW DELHI
        OCTOBER 30, 2012.






-----------------------
[1]       (2000) 120 ELT 201 (Tri-Delhi)
[2]       (2009) 5 SCC 791
[3]       (1996) 2 SCC 449
[4]       (2004) 11 SCC 472
[5]       (2008) 5 SCC 257

Early morning, Remani’s parents were called and her father lodged a First Information Report at about 12.30 p.m. in which he stated that the appellant used to inflict physical torture on Remani and due to the continuous harassment she consumed poison and committed suicide. 7. After investigations, the police filed a report in which it was concluded that the appellant had murdered Remani. - whether the appellant murdered his wife Remani or whether she committed suicide. We are in agreement with the view taken by the Trial Judge and affirmed by the High Court that the case was one of murder and not of suicide.= what is clinching in the present case is the medical evidence which clearly indicates that Remani was forcibly administered Furadan; she had resisted this forcible administration; as a result of her resistance, she received several minor injuries on her body. Eventually, with a view to overcome her resistance, she was smothered and ultimately she died as a result of the forcible administration of Furadan and smothering. No person other than her husband could have possibly caused Remani’s death, especially considering the motive or grudge that he harboured against her. -The fact is that investigations into the matter, particularly the injuries suffered by Remani and presence of Furadan in her mouth suggested that the case was not one of suicide. When the matter was taken to trial the truth eventually came out, which is that Remani had not committed suicide but had in fact been murdered. Bhaskaran’s hypothesis proved to be only an assumption. - We are conscious that the case is one of circumstantial evidence but we are not able to find any break in the chain of evidence which could possibly throw up some other possibility.


REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO. 732 OF 2008


Ramachandran                                       …..Appellant

                             Versus

State of Kerala                                     ....Respondent


                               J U D G M E N T

Madan B. Lokur, J.

1.    The question before us is whether  the  appellant  murdered  his  wife
Remani or whether she committed suicide. We are in agreement with  the  view
taken by the Trial Judge and affirmed by the High Court that  the  case  was
one of murder and not of suicide.
The facts:
2.    The appellant and Remani had been married for about four years.   They
had two children, the second child having been born just about three  months
before the murder of Remani.
3.    There was a  history  of  matrimonial  discord  between  the  parties.
Remani believed that the appellant was having  illicit  relations  with  the
wife of his elder brother which seems to have been the  cause  of  conflict.
At one stage Remani had even left the  matrimonial  home.   However,  on  an
application having been filed by the appellant for restitution  of  conjugal
rights, the matter was settled between the parties and Remani went  back  to
the matrimonial  home.  Unfortunately,  it  appears  that  even  thereafter,
matrimonial disputes took place between the parties.
4.    According to the prosecution, on the intervening  night  of  10th  and
11th March, 1998 at  about  1.00  a.m.  there  was  a  quarrel  between  the
appellant and Remani. Subsequent to  the  quarrel,  the  appellant  forcibly
administered to Remani a highly  toxic  carbonate  compound  called  Furadan
which is a strong pesticide used for plantain cultivation and was kept in  a
bottle in the house.
5.    On being forcibly administered the  poison,  Remani  ran  out  of  her
house and fell down on the  eastern  side  where  it  is  alleged  that  the
appellant smothered her by closing her nose and mouth with  his  hands.  The
poison and smothering of Remani resulted in her death.
6.    Early morning, Remani’s parents were called and her  father  lodged  a
First Information Report at about 12.30 p.m. in which  he  stated  that  the
appellant used to  inflict  physical  torture  on  Remani  and  due  to  the
continuous harassment she consumed poison and committed suicide.
7.    After investigations, the police  filed  a  report  in  which  it  was
concluded  that  the  appellant  had  murdered  Remani.  On  committal,  the
appellant denied the charge, pleaded not guilty and claimed trial.
8.    The prosecution examined as many as 16 witnesses and produced  several
documents and material objects in support of its  case  including  a  bottle
containing Furadan.
Decision of the Trial Court:
9.    The material witnesses for the  prosecution  before  the  Trial  Court
were PW-1, PW-2, PW-3, PW-7 and PW-10.
10.   PW-1 Bhaskaran stated that  Remani  was  his  daughter  and  that  her
husband used to beat her up everyday and scold  her.  Remani  had  told  him
that the appellant was having illicit relations with the wife of  his  elder
brother. The witness was not specifically questioned about the FIR given  by
him in which he had stated that Remani had committed  suicide  by  consuming
poison. He, however, stated that he had informed the police that Remani  was
administered poison by her husband, that is, the appellant.
11.   PW-2 Thankamalu, mother of Remani, confirmed that there were  frequent
and daily quarrels between the appellant and Remani. She stated that  Remani
told her that the appellant would get drunk  and  beat  her  up.   She  also
stated that Remani told her that the appellant was having illicit  relations
with the wife of his elder brother. According to this  witness,  Remani  was
capable of doing some typing jobs and bringing up  her  children.  As  such,
there was no doubt that, if need be, Remani could  look  after  herself  and
would not commit suicide.
12.   PW-3 Ragini is the sister of Remani. She also confirmed  the  frequent
if not daily physical abuse inflicted by the appellant on Remani.

13.   PW-7 Hamza is  a  neighbour  of  the  appellant  and  Remani.  He  too
confirmed the physical abuse that Remani was subjected to by the appellant.
14.   PW-8 Kumhadi is the father of the appellant.  He stated  that  on  the
intervening night of 10th and 11th March, 1998  he  and  the  appellant  had
gone to the temple to watch a ‘Koothu’ program. They came back  at  about  5
or 5.30 a.m. in the morning and that is when they  discovered  the  body  of
Remani. This witness was declared  hostile  and  cross-examined.  The  Trial
Court did not give much credence to the testimony of this  witness  and  did
not accept the alibi.
15.   The most important witness is PW-10 Dr. Rajaram.  He is  an  Associate
Professor of Forensic Medicine, Medical College, Kozhikode and he  conducted
the post mortem examination on the body of Remani.  He stated that  she  had
as many as 22 abrasions and contusions on various parts  of  her  body.   He
stated, on the basis of the chemical examination report,  that  Remani  died
due to the combined effect of smothering and carbofuran  poisoning.  He  was
cross-examined and asked whether the abrasions on Remani’s body  could  have
been caused on her falling  down  on  a  hard  surface  and  struggling  for
existence.  He replied that in view of the  injuries  on  the  back  of  her
body, the possibility was highly remote.  He also stated that  if  her  back
had come in contact with a hard object, her clothes would have had  a  tear.
He further stated that the nature of injuries including one on the  back  of
the elbow clearly suggested that Remani had offered some resistance.
16.   On the above material, the Trial Court was of the  opinion  that  even
though the case  was  one  of  circumstantial  evidence,  there  was  enough
material on record to show that it was only the appellant who  had  murdered
Remani by forcibly administering Furadan and then smothering  her.   It  may
be mentioned that Furadan is a carbofuran and its ingestion can cause  death
within 10 minutes.
17.   The Trial Court was also of the view that the appellant had  a  motive
for murdering Remani in as much as they would have frequent quarrels on  the
suspicion of Remani that the appellant had illicit relations with  the  wife
of his elder brother who was residing in the same house.

18.   The Trial Court discounted the  theory  that  the  appellant  and  his
father had gone to the temple to witness ‘Koothu’. It was noted  that  there
was nothing to support such a statement.  In this context, it  was  observed
by the Trial  Court  that  Remani  was  in  hospital  from  08.03.1998  till
10.03.1998 due to some vomiting and illness and it was  very  unlikely  that
immediately after her discharge from hospital on  10.03.1998  the  appellant
would have left her alone in the house and  gone  to  the  temple  where  he
stayed overnight, if indeed he cared for her.
19.   On the basis of the above facts, the Trial Court  held  the  appellant
guilty of having committed  the  murder  of  Remani  and  sentenced  him  to
imprisonment for life.

Decision of the High Court:
20.   Feeling aggrieved, by the  conviction  and  sentence  awarded  by  the
Trial Court, the appellant preferred Criminal Appeal No. 663 of  2003  which
was dismissed by a Division Bench of the High Court of  Kerala  by  Judgment
and Order dated 30.11.2004.

21.   The High Court took into consideration the evidence of the  witnesses,
the strained matrimonial relations between the appellant and Remani as  also
the medical evidence for affirming the conviction and sentence.
22.   The High Court noted that the unnatural death of  Remani  was  not  in
dispute. The principal question before the High Court was whether her  death
was due to homicide or suicide. In this regard, the High Court placed  great
emphasis on the unambiguous evidence of  Dr.  Rajaram  to  the  effect  that
Remani’s death was caused by smothering and administration of toxic  Furadan
which was found in her mouth and pharynx. As testified by  the  doctor,  the
various injuries on Remani, though minor, indicated that the  administration
of Furadan was forcible and that she had resisted this.

23.   In view of the fact that the appellant had a motive to  murder  Remani
and there was clear medical evidence suggesting smothering and poisoning  of
Remani, the High Court upheld the conviction and sentence.
Discussion and conclusions:
24.   In Sudama Pandey v. State of  Bihar,  (2002)  1  SCC  679  this  Court
considered the scope of interference in a criminal  appeal  with  concurrent
findings of fact. It was observed as follows:
      We are not unmindful of the fact that this Court under Article 136  of
      the Constitution seldom interferes with the factual findings  recorded
      by two concurring Courts but if this Court is satisfied that the  High
      Court has committed  a  serious  error  of  law  and  that  there  was
      substantial miscarriage of justice, this Court  could  interfere  with
      the concurring findings of the High Court and that of the Trial Court.
      This Court also does not normally enter into a reappraisal  or  review
      of the evidence unless the assessment of  the  evidence  by  the  High
      Court is vitiated by an  error  of  law  or  procedure  or  there  was
      misreading of evidence.”



25.   Similarly in Dalbir Kaur v. State of Punjab,  (1976)  4  SCC  158  the
principles for interference were culled out and stated by S.  Murtaza  Fazal
Ali, J as follows:
      “Thus the  principles  governing  interference  by  this  Court  in  a
      criminal appeal by special leave may be summarised as follows:

      (1) that this Court would not interfere with the concurrent finding of
      fact based on pure appreciation of evidence even if it were to take  a
      different view on the evidence;

      (2) that the Court will not normally enter into  a  reappraisement  or
      review of the evidence, unless the assessment of  the  High  Court  is
      vitiated by an error of law or procedure  or  is  based  on  error  of
      record, misreading of evidence or is inconsistent with  the  evidence,
      for instance, where the ocular evidence is totally  inconsistent  with
      the medical evidence and so on;

      (3) that the Court would not enter into credibility  of  the  evidence
      with a view to substitute its own opinion for that of the High Court;

      (4) that the Court would interfere where the High Court has arrived at
      a finding of fact in disregard of a judicial  process,  principles  of
      natural justice or a fair hearing or  has  acted  in  violation  of  a
      mandatory provision of law or procedure resulting in serious prejudice
      or injustice to the accused;

      (5) this Court might also interfere where on the  proved  facts  wrong
      inferences of law have been drawn or where the conclusions of the High
      Court are manifestly perverse and based on no evidence.”




26.   In the same  decision,  A.C.  Gupta,  J  concurred  but  cautioned  as
follows:
      “The decisions of this Court referred to in the Judgment of my learned
      brother lay down that this Court does not interfere with the  findings
      of fact unless it is shown that "substantial and grave  injustice  has
      been done". But whether such injustice has been done in a  given  case
      depends on the circumstances of the case, and I do not think one could
      catalogue exhaustively all possible circumstances in which it  can  be
      said that there has been grave and substantial injustice done  in  any
      case.”


27.   Keeping these principles in mind, we have considered the  evidence  on
record  and  find  no  exceptional  circumstance  or  reason  to  disturb  a
concurrent finding of fact by both the Courts.
28.   However, we need  to  deal  with  the  contentions  urged  by  learned
counsel for the appellant. His first contention was that even  though  there
may have been strained  matrimonial  relations  between  the  appellant  and
Remani, those differences were patched up when  Remani  came  back  to  live
with the appellant in the matrimonial home.  His second contention was  that
the appellant had no ill will towards Remani in as  much  as  when  she  was
hospitalized from 8.03.1998 to 10.03.1998, he had looked after and paid  the
medical bills.  Under these circumstances, there was no reason  for  him  to
have murdered Remani.
29.   We are of the view that  there  is  no  substance  in  either  of  the
submissions made by learned counsel. There is ample evidence on  record  not
only from the immediate family of Remani but also from  her  neighbour  that
she was subjected to physical violence almost on a daily basis.   The  cause
of discord between the appellant and Remani appears to be  her  belief  that
the appellant had illicit relations with the  wife  of  his  elder  brother.
This may or may not be true but the fact of the  matter  is  that  relations
between the parties were terribly  strained  and  Remani  was  subjected  to
physical abuse almost on a daily basis. These  strained  relations,  coupled
with the allegations made by Remani, provided a motive for the appellant  to
murder her.
30.   The fact that the appellant may have looked after  Remani  during  her
illness for a couple of days is neither here nor there. He was  expected  to
do so.
31.   However, what  is  clinching  in  the  present  case  is  the  medical
evidence which clearly  indicates  that  Remani  was  forcibly  administered
Furadan; she had resisted this forcible administration; as a result  of  her
resistance, she received several minor injuries  on  her  body.  Eventually,
with a view to overcome her resistance, she  was  smothered  and  ultimately
she died  as  a  result  of  the  forcible  administration  of  Furadan  and
smothering. No person other than her  husband  could  have  possibly  caused
Remani’s  death,  especially  considering  the  motive  or  grudge  that  he
harboured against her.
32.   Learned counsel for the appellant also submitted that Remani’s  father
had himself stated in the FIR that she had committed  suicide  by  consuming
poison. This seems to have been the first impression gathered by  Bhaskaran.
Learned counsel for the State pointed out that  the  reason  could  possibly
have been to save the appellant from imprisonment  keeping  the  welfare  of
their two children in mind. It is not necessary for us to make  any  guesses
in this regard.
33.   The fact is that investigations  into  the  matter,  particularly  the
injuries suffered by Remani and presence of Furadan in her  mouth  suggested
that the case was not one of suicide. When the matter  was  taken  to  trial
the truth eventually came out,  which  is  that  Remani  had  not  committed
suicide but had in fact been murdered.  Bhaskaran’s hypothesis proved to  be
only an assumption.
34.   We are conscious that the case is one of circumstantial  evidence  but
we are not able to find any break in  the  chain  of  evidence  which  could
possibly throw up some other  possibility.  Under  these  circumstances,  we
find no reason to interfere with the conviction and sentence awarded to  the
appellant by the Trial Court and confirmed by the High Court.
35.   There is no merit in the appeal and it is accordingly dismissed.


                                      ….…….……………………..J.
                                        (Swatanter Kumar)


                                                           ….…….……………………..J.
                                        (Madan B. Lokur)

New Delhi;
October 30, 2012