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Sunday, February 26, 2017

In our view, having regard to the nature of controversy involved in these appeals, the contentious issues decided by the Tribunal and the Single Judge of the High Court, the implications of various Forest and Revenue laws governing the issues and further keeping in view the Commissioner's report obtained by the Division Bench pursuant to the order dated 29.10.2000 in relation to the disputed land in question, the writ appeal deserves to be heard on merits.=we are inclined to allow the appeals in part and while setting aside the impugned judgment remand the case to the High Court (Division Bench) to decide the writ appeal afresh on merits.

                                                       Non-reportable

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL No. 2099 OF 2008


State of Kerala & Ors.                   ….Appellant(s)

                             VERSUS

Yusuff & Ors.                                      …Respondent(s)

                       WITH


                        CIVIL APPEAL No. 2100 OF 2008


State of Kerala & Ors.                   ….Appellant(s)

                             VERSUS

Yusuff & Ors.                                      …Respondent(s)



                               J U D G M E N T

Abhay Manohar Sapre, J.
1)    Civil appeal No. 2099 of 2008 is  filed  against  the  final  judgment
dated 22.01.2004 passed by the High Court of Kerala  at  Ernakulam  in  Writ
Appeal No. 198 of 2000 whereby the High Court disposed of  the  writ  appeal
filed by the appellants herein by granting six months’ time to complete  the
demarcation and to hand over the land in question.  2)    Civil  Appeal  No.
2100 of 2008 is filed against the final order  dated  11.06.2004  passed  by
the High Court of Kerala at Ernakulam in R.P.No. 254 of 2004  filed  against
the judgment dated 22.01.2004 in W.A. No. 198 of  2000  by  which  the  High
Court closed the review petition on the  basis  of  the  submission  of  the
Government pleader that the Government is resorting to other remedies.
3)    We herein set out  the  facts,  in  brief,  to  appreciate  the  issue
involved in these appeals.
4)    The impugned judgment and order read as under:

                      “Judgment in W.A. No. 198 of 2000

The learned Government Pleader submits that what the Government requires  is
only some time to  demarcate  the  land  in  question  for  the  purpose  of
restoration to the Respondents.  Accordingly, the Writ  Appeal  is  disposed
of, as suggested by the Government Pleader, granting six months’  time  from
today to complete the demarcation and to hand over the land in question.”


                       “Order in R.P. No. 254 of 2004
Government Pleader  submits  that  the  Government  is  resorting  to  other
remedies.

Review Petition is closed.”

5)    The dispute in these appeals essentially center around to  the  forest
land measuring around 4.0755 Hectares  in  Sy.  No  2019/Part,  situated  in
Pattassery (Agaly) Village, Mannaghat Taluk, District Palakkad in the  State
of Kerala. It is between the State (Forest Department) on the one  hand  and
the private individuals(respondents) on  the  other  hand.  The  respondents
assert their rights on the said land  to  the  exclusion  of  the  State  on
variety of grounds whereas  the  State  equally  disputes  the  respondents’
claim and assert their rights.
6)    The Forest Tribunal, Manjeri, by order dated 03.10.1979, in  O.A.  No.
97 of  1978  first  decided  the  dispute.  It  was  then  carried  in  writ
jurisdiction to the High Court in O.P. No 1470 of 1991 and  was  decided  on
merits and then was taken in appeal being W.A. No 198  of  2000  before  the
Division Bench which resulted in passing the impugned judgment  giving  rise
to filing of  C.A. No. 2099 of 2008 by the State.  Against the  judgment  in
W.A. No. 198 of 2000,   Review Petition No. 254 of  2004  was  filed  before
the High Court, which was closed by order  dated  11.06.2004.   Against  the
said order, C.A. No. 2100 of 2008 is filed.
7)    Heard Mr. V. Giri, learned senior counsel for the appellants  and  Mr.
M.S. Vishnu Sankar, learned counsel for the respondents.
8)    Submission of learned Senior  counsel  for  the  appellant(State)  was
only one. According to him, having  regard  to  the  nature  of  controversy
which was the subject matter before the Forest Tribunal in O.A.  No.  97  of
1978 and then carried to the High  Court  in  O.P.  No.  1470  of  1991  and
lastly, in appeal being W.A. No. 198 of 2000 at the instance of  the  State,
which is now finally brought to this Court in these appeals, the High  Court
ought to have dealt with and decided variety of grounds urged on  merits  by
the parties.
9)    Learned Counsel pointed out that presumably due  to  reason  that  the
State’s counsel did not argue any point, the High Court did not consider  it
necessary to go into  any  of  the  contentious  issues  but,  according  to
learned counsel, it caused serious prejudice to the State.
10)   Learned counsel pointed out from the record that the  State’s  counsel
was neither authorized to make such statement before the Division  Bench  on
behalf of the State and nor was there any occasion  for  him  to  make  such
statement which unfortunately resulted in disposal  of  the  State’s  appeal
without deciding any of the contentious issues. Learned counsel,  therefore,
urged for hearing the State's writ  appeal  on  merits  by  the  High  Court
afresh in accordance with law.
11)   In reply, learned  counsel  for  the  respondents  (writ  petitioners)
while supporting the impugned judgment/order  contended  that  the  impugned
judgment/order  deserve  to  be  upheld  calling  no  interference  therein.
Learned counsel urged that the State’s counsel rightly made  the  concession
which was duly recorded by the Division Bench resulting in disposal  of  the
appeal.
12)   Learned counsel also urged several  issues  arising  in  the  case  on
merits to show that the appellant (State) has no case even on facts.
13)   Having heard the learned counsel for the parties  and  on  perusal  of
the record of the case, we are inclined to allow the  appeals  in  part  and
while setting aside the impugned judgment remand the case to the High  Court
(Division Bench) to decide the writ appeal afresh on merits.
14)   In our view, having regard to the nature of  controversy  involved  in
these appeals, the contentious  issues  decided  by  the  Tribunal  and  the
Single Judge of the High Court,  the  implications  of  various  Forest  and
Revenue  laws  governing  the  issues  and  further  keeping  in  view   the
Commissioner's report obtained by the Division Bench pursuant to  the  order
dated 29.10.2000 in relation to the disputed  land  in  question,  the  writ
appeal deserves to be heard on merits.
15)   So far as the issue with regard to the statement  of  the  appellants’
counsel made before the High Court is concerned, we find from the record  of
the case that it was not called for inasmuch as the  same  appears  to  have
been made under some misconception.  Be that as it  may,  in  the  light  of
what we have observed supra, it is not necessary to go  into  this  question
any more.
16)   In our view, the remand of the  appeal  to  the  High  Court  for  its
decision  on  merits  would  not,  in  any  way,  cause  prejudice  to   the
respondents because they would also be heard in appeal.
17)   In the light of foregoing discussion, we allow the appeals, set  aside
the impugned judgment and order, restore Writ Appeal No. 198 of 2000 out  of
which these appeals arise and request the High  Court  to  decide  the  writ
appeal afresh on merits in accordance with law expeditiously.
18)   We make it clear that we have not expressed any opinion on the  merits
of the controversy involved  in  these  appeals  and,  therefore,  the  writ
appeal would be decided by  the  High  Court  uninfluenced  by  any  of  our
observations.

                       ………...................................J.
                                  [R.K. AGRAWAL]



…...……..................................J.
                               [ABHAY MANOHAR SAPRE]     New Delhi;
February 23, 2017
-----------------------
8


whether, before granting leave to institute a suit under section 92, Advocate-General, or later the Court, was required to give an opportunity to the proposed defendants to show cause why leave should not be granted. What learned counsel for the appellants urged, however, was that these decisions show that at the time when the Advocate-General or the Court is required to consider whether to grant leave to institute a suit as contemplated under section 92, it is only the averments in the plaint which have to be examined and hence, the presence of the defendant is not necessary. We may now consider the High Court decisions relied on by the learned counsel for the appellants.” After the amendment was brought to the Code of Civil Procedure in 1976, duty was cast upon the Court, instead of Advocate General, to take into account these considerations for granting leave under this section. Prior to the 1976 amendment, all these considerations were to be kept in mind by the Advocate General before granting consent to institute a suit against a public trust. - Accordingly, in this factual matrix and the law laid down by this Court and other relevant judicial precedents, we hold that the learned Single Judge erred while granting leave to the appellants. It was the statutory duty of the Court to examine that whether the plaint is so annexed with the application under Section 92 CPC or not. We have noticed that High Court has also erred in neglecting this fact. From a perusal of the compete material on record, in our opinion, the allegations put forth could only be determined by way of evidence in a special suit under Section 92 and respondent No.2 is enjoying the ownership of the disputed immovable property while acting as a trustee. Hence, for the ends of complete justice, the appellants are granted liberty to move appropriate application in accordance with law, within a period of 30 days from the date of pronouncement of this judgement. Civil Courts having jurisdiction to entertain any suit in this country are expected to carefully examine applications of such kind as discussed above.

Reportable

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                       CIVIL APPEAL NO. 3166  OF 2017

                  (Arising out of SLP(C) No.34719 of 2011)

Swami Shivshankargiri Chella Swami & Anr.  …  Appellant(s)
                                  :Versus.:
Satya Gyan Niketan & Anr.               ...  Respondent(s)





                               J U D G M E N T
Pinaki Chandra Ghose, J.

Leave granted.

This appeal, by special leave, has been  filed  by  the  present  appellants
against the judgment and order dated August 1st, 2011  passed  by  the  High
Court of Uttarakhand at Nainital in Civil Revision No.69  of  2008,  whereby
the revision petition filed  by  the  respondents  herein  was  allowed  and
consequently the application filed by the appellants  under  Section  92  of
the Code of Civil Procedure (in short ‘CPC’)  for  obtaining  permission  to
institute a suit was rejected.

The question which comes up for consideration of this  Court in the  present
matter is whether the High Court, on the basis of analysis of the facts  and
circumstances of the case and findings of the Court below, while  exercising
its jurisdiction under Section 115 of CPC, was justified  in  setting  aside
the order granting permission to initiate suit.

The facts of the case succinctly stated are that in the year 1936,  one  Sri
Swami Satya Dev purchased some land  and  constructed  a  building  thereon.
Thereafter on 30.11.1940,  he  waqfed  (gifted)  the  disputed  property  to
Respondent No.2, vide registered  deed,  with  the  express  condition  that
Respondent No.2 will not have a right to mortgage or right of  sale  of  the
property. The property was waqfed for the development and publicity  of  the
‘Hindi Language’ in western India and to establish a  centre  for  publicity
of Hindi. There was also a recital in the deed to establish  a  library  and
to start a ‘Bhyakhan Mala’ etc. and the property was to be managed by a sub-
samiti constituted by respondent No.2.

It appears that objective of transferring the  property  was  to  achieve  a
specific purpose i.e., publicize and develop the  Hindi  Language.  When  it
was felt that respondent No.2 was not taking any interest in  achieving  the
purpose for which the property was  dedicated,  the  appellants  desired  to
initiate civil proceedings against the respondent. One Sri  Mukund  Ram  and
Sri Krit Ram filed Application No.23/2004 under Section 92 of  CPC  and  the
appellants herein filed Application No.07/2006  under  the  same  provision,
respectively, seeking permission to file  a  suit  against  the  respondents
herein in connection with the disputed  property.   Since  same  relief  was
sought in both the petitions, both applications were consolidated and  Misc.
Case No.23/2004 was made the leading case. The learned District  &  Sessions
Judge vide his order dated 12.11.2008 observing that the word “trust” is  to
be liberally construed, and in a sense as  favourable  as  possible  to  the
assumptions of jurisdiction by a Court under Section 92,  allowed  both  the
applications and permitted the appellants to file suit under Section  92  of
CPC. The learned District & Sessions  Judge  observed  that  the  object  of
dedication of the property shall decide the nature of it being considered  a
trust. Relevant part of the order is reproduced as follows:

“Hence perusal of the deed reveals the purpose  to  waqf  the  property  was
charitable and for the benefit of public at  large.  Hence  prima  facie  it
appears that a constructive trust was created by Swami Satya Dev by  gifting
the property to O.P. No.2, in which all the objects  of  the  waqf  and  the
management of property was given.”

In the later part of the order it was observed that:

“Having gone through the entire evidence on record, I am of  the  view  that
prima facie it appears that property in suit was waqfted to  the  O.P.  No.2
for a particular object  and  purpose  i.e.  publicity  and  development  of
Hindi. The property is to be managed by  O.P.  No.2  as  per  directions  of
Swami Satya Dev – recitals of the deed prima facie  proves  that  Sri  Satya
Dev created a constructive trust by gifting the property to  O.P.  No.2  has
not become  exclusive  owner  of  the  same,  because  it  was  gifted  with
conditions i.e. O.P. No.2 has no right to sale or mortgage the property.

So far as this fact is concerned that O.P. No.2 is  the  registered  society
under  the  Indian   Registration   Act,   1960,   does   not   affect   the
maintainability of the suit as held by the Kerala High  Court  in  1992  (2)
page 429, Sukumaran Vs. Akamala Sree Dharma Sastha.”



Being aggrieved by the order of the learned District & Sessions  Judge,  the
respondents filed civil revision under Section 115 of CPC  before  the  High
Court of Uttarakhand at Nainital, being Civil Revision No.69  of  2008,  for
quashing the order dated 12.11.2008 passed by learned  District  &  Sessions
Judge, Haridwar. The said revision petition was allowed by  the  High  Court
vide its judgment  dated  August  1st,  2011,  whereby  the  order  granting
permission under Section  92  CPC  to  institute  suit  was  set  aside  and
quashed. Hence, this appeal by special leave.

We have carefully examined the registered deed dated 30.11.1940 whereby  the
disputed property was transferred on  certain  conditions.  The  very  first
question after the perusal of the deed comes before us is  whether  a  trust
can be created by virtue of a conditional gift.

We have  heard  learned  counsel  for  the  parties  at  length.  Since  the
appellant was interested in achieving the purpose  for  which  property  was
transferred and therefore he approached the Court of learned District  Judge
for seeking permission to file a suit against the Respondents.  It  is  also
not disputed that the property was transferred (waqfed) to  Respondent  No.2
vide registered deed dated 30.11.1940.

It is submitted by the counsel of the petitioners that the  mere  fact  that
Respondent No.2 is a registered society does not affect the  maintainability
of the suit in view of the judgement given in  the  case  of  Sukumaran  Vs.
Akamala Sree Dharma Sastha, 1992 (2) 429; Sugra Bibi Vs. Haji Kummu,  [1969]
3 SCR 83; 1940 PC  (10).

Lastly, it was  a case of breach of administration of  trust  and  the  same
can be decided by way of evidence and that while granting  leave  the  Court
does not decide the right of the parties or adjudicate upon  the  merits  of
the case. The only consideration relevant at such juncture is whether  there
is a prima facie case for granting leave to file a suit and in the light  of
this submission the High Court was not justified  in  neglecting  the  prima
facie case of the appellants.

Per contra, it is argued by the counsel for Respondents that  society  Kashi
Nagari Sabha is a registered society and is also the absolute owner  of  the
property of Satya Gayan Niketan Ashram, Jwalapur and  cannot  be  considered
as a trust and the High Court  has  rightly  allowed  the  revision  of  the
respondents. However, it appears to us that  the  present  case  deals  only
with the issue of granting leave under  Section  92  of  CPC  to  interested
persons to initiate a suit.

The present Section 92 of the CPC corresponds to  Section  539  of  the  old
code of 1883 and has been borrowed in part from  52  Geo  3  c  101,  called
Romilly’s Act of the United Kingdom. A bare  perusal  of  the  said  section
would show that a suit can be instituted in respect of  a  public  trust  by
the advocate general or two or more persons having an interest in the  trust
after obtaining leave of the Court in the principal civil Court of  original
jurisdiction. An analysis  of  these  provisions  would  show  that  it  was
considered desirable to prevent a public trust from being  harassed  or  put
to legal expenses by reckless or frivolous suits being brought  against  the
trustees and hence a provision was made for leave of the Court having to  be
obtained before the suit is instituted.

After considering the  deed  executed  in  the  favour  of  respondent  No.2
(Prachaarini Sabha), which is not in  dispute,  we  have  noticed  that  the
purpose of transferring ownership of the property  was  subject  to  certain
conditions and purposes which cast  duties  on  respondent  No.2,  including
development of the Hindi Language and opening a library. Hence, the  purpose
is rendering the nature of Prachaarini Sabha to be a trust.

In the present facts and circumstances, it can be easily inferred  from  the
perusal of the application made that plea  was  sought  to  seek  permission
only to institute a suit alleging the Sabha to be acting as  a  trust.  This
Court in Additional Commissioner  of  Income  Tax,  Gujarat,  Ahmedabad  Vs.
Surat Art Silk Cloth Manufacturers’ Association, Surat, (1980) 2 SCC 31,  in
paragraph 17, observed:

“…Every  trust  or  institution  must  have  a  purpose  for  which  it   is
established and every  purpose  must  for  its  accomplishment  involve  the
carrying on of an activity.”



Further, this Court in M/s. Shanti Vijay and Co. & Ors. Vs. Princess  Fatima
Fouzia & Ors., (1979) 4 SCC 602, observed:

“The law governing the execution of trusts is well settled. In the  case  of
a private trust, where there are more trustees than one, all  must  join  in
the execution of the trust. The concurrence of all is in  general  necessary
in transaction affecting the trust property, and a majority cannot bind  the
trust estate. In order to bind the trust estate, the act must be the act  of
all. They constitute one body in the eye of law, and all must act  together.
This is, of course, subject to any express direction given by the settlor.”



This Court while discussing the scope and applicability  of  Section  92  of
CPC in the case of Harendra Nath Bhattacharya & Ors. Vs. Kaliram Das  (dead)
by his Heirs and Lrs. & Ors., (1972) 1 SCC 115, observed in para 13:

“It is well settled by the  decisions  of  this  Court  that  a  suit  under
Section 92 is of a special nature  which  presupposes  the  existence  of  a
public trust of a religious or charitable character. Such suit  can  proceed
only on the allegation that  there  is  a  breach  of  such  trust  or  that
directions from the Court  are  necessary  for  the  administration  of  the
trust. In the suit, however, there must be a prayer for one or other of  the
reliefs that are specifically mentioned in the section. Only then  the  suit
has to be filed in conformity with the provisions of Section 92 of the  Code
of Civil Procedure. It is quite clear that none of the  reliefs  claimed  by
the plaintiffs fell within the section. The declarations which  were  sought
could not possibly attract the applicability of  Section  92  of  the  Civil
Procedure Code. The High Court was, therefore, right in  holding  that  non-
compliance with that section did  not  affect  the  maintainability  of  the
suit.”



Further, in the case of  Swami  Parmatmanand  Saraswati  &  Anr.  Vs.  Ramji
Tripathi & Anr., (1974) 2 SCC  695,  while  precluding  the  application  of
Section 92 of CPC on suits to vindicate personal or individual rights,  this
Court pointed out as under:

“10. A  suit  under  Section  92  is  a  suit  of  a  special  nature  which
presupposes the existence of a public Trust of  a  religious  or  charitable
character. Such a suit can proceed only on the allegation that there  was  a
breach of such trust or that the direction of the  Court  is  necessary  for
the administration of the trust and the plaintiff must pray for one or  more
of the reliefs that are mentioned in the section. It  is,  therefore,  clear
that if the allegation of breach of trust is not substantiated or  that  the
plaintiff had not made out a case for any direction by the Court for  proper
administration of the trust,  the  very  foundation  of  a  suit  under  the
section would fail; and, even if all the other ingredients of a  suit  under
Section 92 are made out, if it is clear that the plaintiffs  are  not  suing
to vindicate the right of the public but are seeking a declaration of  their
individual or personal rights or the individual or personal  rights  of  any
other person or persons in whom they are interested, then the suit would  be
outside the scope of Section 92. A suit whose primary object or  purpose  is
to remedy the infringement of an individual right or to vindicate a  private
right does not fall under the section. It is not  every  suit  claiming  the
reliefs specified in the section that can be brought under the  section  but
only the suits which, besides claiming any of the  reliefs  are  brought  by
individuals as representatives of  the  public  for  vindication  of  public
right, and in deciding whether a suit falls within  Section  92,  the  Court
must go beyond the reliefs and have regard to  the  capacity  in  which  the
plaintiffs are suing and to the purpose for  which  the  suit  was  brought.
This is the reason why trustees of public trust of a  religious  nature  are
precluded from suing under the section  to  vindicate  their  individual  or
personal rights. It is  quite  immaterial  whether  the  trustees  pray  for
declaration of their personal rights or deny the personal rights of  one  or
more defendants. When the right to the office of a trustee  is  asserted  or
denied and relief asked for on that basis, the suit  falls  outside  Section
92.”



Moreover, while discussing the giving of notice to the  proposed  defendants
in any matter before the granting of leave under Section  92  of  CPC,  this
Court in R.M. Narayana Chettiar & Anr. Vs. N. Lakshmanan  Chetfiar  &  Ors.,
(1991) 1 SCC 48, noted in para 17 that –

“A plain reading of Section 92 of the  Code  indicates  that  leave  of  the
court is a pre-condition or a condition precedent for the institution  of  a
suit against a public trust for the reliefs set out  in  the  said  section:
unless all the beneficiaries join in instituting the suit, if  such  a  suit
is instituted without leave, it would not be maintainable at all. Having  in
mind the objectives underlying section  92  and  the  language  thereof,  it
appears to us that, as a rule caution, the court should normally, unless  it
is impracticable or inconvenient to do so, give a  notice  to  the  proposed
defendants before granting leave under Section 92 to institute a  suit.  The
defendants could bring to the notice of the  court  for  instance  that  the
allegations made in the plaint are frivolous or reckless. Apart  from  this,
they could, in a given case, point out that the  persons  who  are  applying
for leave under Section 92 are doing so merely with a  view  to  harass  the
trust or have such antecedents that it would be undesirable to  grant  leave
to such persons.  The  desirability  of  such  notice  being  given  to  the
defendants, however, cannot be regarded as a  statutory  requirement  to  be
complied with before leave under Section 92 can be  granted  as  that  would
lead to unnecessary delay and, in a given case, cause considerable  loss  to
the public trust. Such a construction of the provisions  of  Section  92  of
the Code would render it difficult for the beneficiaries of a  public  trust
to  obtain  urgent  interim  orders  from  the   court   even   though   the
circumstances might warrant such  relief  being  granted.  Keeping  in  mind
these considerations, in our opinion, although, as a rule of caution,  court
should normally give notice to the defendants before  granting  leave  under
the said section to institute a suit, the court' is not bound to do  so.  If
a suit is instituted on the basis of such leave, granted without  notice  to
the defendants, the suit would not thereby be rendered bad in  law  or  non-
maintainable. The grant of leave cannot be regarded  as  defeating  or  even
seriously prejudicing any right of the proposed  defendants  because  it  is
always open to them to file an  application  for  revocation  of  the  leave
which can be considered on merits and according to law.”



It is also pertinent to mention the case of  B.S.  Adityan  &  Ors.  Vs.  B.
Ramachandran Adityan & Ors., (2004) 9 SCC 720, wherein this Court opined:

“5. In the normal course if an appeal is filed  against  an  order  granting
permission to a party to file a suit as falling under Section 92 CPC, we  do
not normally interfere with an order made by the High Court nor do we  think
of entertaining a proceeding  of  this  nature  under  Article  136  of  the
Constitution because the  order  made  thereunder  will  not  determine  the
rights of the parties, but only enable a party to initiate a proceeding.”

Later in para 7 it was held:

“7. The learned counsel for the appellants urged that  the  order  that  was
passed under Section 92 CPC granting permission to file a  suit  is  whether
administrative in character or otherwise; that  this  does  arise  when  the
objections of the defendants  are  considered;  that  as  to  scope  of  the
meaning of the expression “order, judgment,  decree  and  adjudication”.  He
drew our attention to decision in Pitchayya v. Venkatakrishnamacharlu,  (AIR
1930 Mad. 129) to the effect that  the  object  of  Section  92  CPC  is  to
safeguard the rights of the public and of institutions  under  trustees.  In
this regard, he specifically drew our attention to  National  Sewing  Thread
Co. Ltd. v. James Chadwick & Bros. Ltd., (1953 SCR 1028).  He also  adverted
to decision in R.M.A.R.A. Adaikappa Chettiar  v.  R.  Chandrasekhara  Thevar
(AIR 1948 PC 12) to contend that where a legal right is in dispute  and  the
ordinary courts of the country are seized of such dispute,  the  courts  are
governed by ordinary rules of procedure applicable  thereto  and  an  appeal
lies if authorised by such  rules,  notwithstanding  that  the  legal  right
claimed arises under a special stature which does  not  in  terms  confer  a
right of appeal. In R.M. Narayana Chettiar v. N. Lakshmanan Chettiar  (1991)
1 SCC 48, this Court has examined in detail the scope of Section 92 CPC  and
explained the object underlying therein in granting  permission  to  file  a
suit. In this case, this Court held that court should normally  give  notice
to the defendants before granting leave as a rule of caution  but  court  is
not bound to do so in all circumstances and  non-issuance  of  notice  would
not render the suit bad or non-maintainable and the defendants  can  at  any
time apply  for  revocation  of  the  leave,  and  provision  under  Section
104(1)(ffa) for appeal against refusal of grant of leave does not lead to  a
different conclusion. In the light of this decision, we do not  consider  it
necessary to advert to other decisions cited by the  learned  counsel.  More
so, the matter was considered by the Law Commission in its report  submitted
in April  1992  on  this  aspect  of  the  matter.  After  noticing  various
decisions of different courts and the decision  in  R.M.  Narayana  Chettiar
case the Law Commission recommended  that  to  expect  the  court  to  issue
notice and then to try the several points of detail  before  granting  leave
in the light of the objections  put  forth  by  the  respective  defendants,
would mean that there will be a trial before trial and  this  would  not  be
desirable. The recommendation of  the  Law  Commission  was,  therefore,  to
insert an explanation below Section 92 CPC to the effect that the court  may
grant leave under this section without issuing notice to any  other  person,
but this does not, of course, mean that the court  will  grant  leave  as  a
matter of course. Particular emphasis is made and heavy reliance  is  placed
on the decision of this Court in Shankarlal Aggarwala v.  Shankarlal  Poddar
(1964) 1 SCR  717,  to  emphasise  distinction  between  administrative  and
judicial orders. It is urged that order from which the appeal was  preferred
was not a judgment within the meaning of clause 15  of  the  Letters  Patent
and so no appeal lies to the  Division  Bench.  Reference  is  made  to  the
decision of this Court in Institute of Chartered  Accountants  of  India  v.
L.K.  Ratna  (1986)  4  SCC  537,   to   bring   out   distinction   between
administrative and judicial order. Scope of Section 92 CPC was  examined  in
Charan Singh v. Darshan Singh (1975) 1 SCC 298, where the whole case  turned
on the facts arising in that particular case.”

And lastly, it was opined by this Court in para No.9:

“…Although as a rule of caution, court should normally give  notice  to  the
defendants before granting leave under  the  said  section  to  institute  a
suit, the court is not bound to do so. If a suit is instituted on the  basis
of such leave, granted without notice to the defendants, the suit would  not
thereby be rendered bad in law or non-maintainable. Grant  of  leave  cannot
be regarded as defeating or even seriously  prejudicing  any  right  of  the
proposed  defendants  because  it  is  always  open  to  them  to  file   an
application for revocation of the leave which can be  considered  on  merits
and according to law or even in the course of suit which may be  established
that the suit does not fall within the scope of  Section  92  CPC.  In  that
view of the matter, we  do  not  think,  there  is  any  reason  for  us  to
interfere with the order made by the High Court”.


We have  noticed  that  the  trust  deed  was  executed  in  favour  of  the
respondents. But it appears in view of the facts and circumstances  of  this
case and the submissions made on behalf of  the  respondents,  that  it  was
waqfed/gifted for a lawful purpose i.e.  a “trust” is an obligation  annexed
to the ownership of the property, and arising out of  a  confidence  reposed
in and accepted by the owner, or declared  and  accepted  by  him,  for  the
benefit of another, or of another owner, (Act II  of  1882  Trusts,  Section
3]. Accordingly, in our opinion, the application  filed  by  the  appellants
was falling within the required ambit of Section 92 of CPC and  the  learned
District Judge had rightly permitted the appellants to institute a suit.  We
are of the considered opinion that High Court has  erred  in  setting  aside
the well reasoned order of the  learned  Judge  and  grossly  erred  in  not
diligently examining the  facts  and  circumstances  in  the  light  of  the
registered deed dated 30.11.1940.

Apart from the above discussion, we have also taken notice of the fact  that
plaint was not annexed with the application filed under Section  92  of  the
CPC which is pre-requisite for filing the application for leave  to  file  a
suit. Based on the averments in the plaint only, it  can  be  inferred  that
whether an application under Section 92 is maintainable or not.  This  Court
in the case of R.M. Narayana Chettiar (supra)  at para No.10 observed:

“Neither of the aforesaid decisions of this Court deal with the question  as
to whether, before granting leave to institute  a  suit  under  section  92,
Advocate-General, or later the Court, was required to  give  an  opportunity
to the proposed defendants to show cause why leave should  not  be  granted.
What learned counsel for the  appellants  urged,  however,  was  that  these
decisions show that at the time when the Advocate-General or  the  Court  is
required to  consider  whether  to  grant  leave  to  institute  a  suit  as
contemplated under section 92, it is only the averments in the plaint  which
have to be  examined  and  hence, the  presence  of  the  defendant  is  not
necessary. We may now consider the High Court decisions  relied  on  by  the
learned counsel for the appellants.”



After the amendment was brought to the Code  of  Civil  Procedure  in  1976,
duty was cast upon the Court, instead of  Advocate  General,  to  take  into
account these considerations for granting leave under  this  section.  Prior
to the 1976 amendment, all these considerations were to be kept in  mind  by
the Advocate General before granting consent to institute a suit  against  a
public trust.

Accordingly, in this factual matrix and the law laid down by this Court  and
other relevant judicial precedents, we hold that the  learned  Single  Judge
erred while granting leave to the appellants. It was the statutory  duty  of
the Court to examine  that  whether  the  plaint  is  so  annexed  with  the
application under Section 92 CPC or not. We have  noticed  that  High  Court
has also erred in neglecting this fact.

From a perusal of the compete  material  on  record,  in  our  opinion,  the
allegations put forth could only be determined  by  way  of  evidence  in  a
special suit under Section 92 and respondent No.2 is enjoying the  ownership
of the disputed immovable property while acting as  a  trustee.  Hence,  for
the ends of complete justice, the appellants are  granted  liberty  to  move
appropriate application in accordance with law, within a period of  30  days
from the date of  pronouncement  of  this  judgement.  Civil  Courts  having
jurisdiction  to  entertain  any  suit  in  this  country  are  expected  to
carefully  examine  applications  of   such   kind   as   discussed   above.


     This appeal is disposed of in above-noted terms.



……………………………….. J
(Pinaki Chandra Ghose)



……………………………….. J
 (Ashok Bhushan)

      New Delhi;

February 23, 2017.

We have seen in the instant case that the witnesses have vividly deposed about the genesis of the occurrence, the participation and involvement of the accused persons in the crime. The non-examination of the witnesses, who might have been there on the way to hospital or the hospital itself when deceased narrated the incident, would not make the prosecution case unacceptable. Similarly, evidence of any witness cannot be rejected merely on the ground that interested witnesses admittedly had enmity with the persons implicated in the case. The purpose of recoding of the evidence, in any case, shall always be to unearth the truth of the case. Conviction can even be based on the testimony of a sole eye-witness, if the same inspires confidence. Moreover, prosecution case has been proved by the testimony of the eye-witness since corroborated by the other witnesses of the occurrence. We are constrained to reject the submissions made on behalf of the appellants.In the instant case, the witnesses, as the High Court has found and we have no reason to differ, are reliable and have stood embedded in their version and remained unshaken. They have vividly deposed about the genesis of occurrence, the participation and involvement of the accused persons in the crime and the injuries inflicted on the deceased, and on each of them.Thus, in the light of the above discussion, we are of the view that the present appeals are devoid of merits and the judgment passed by the High Court does not warrant interference. These appeals are, accordingly, dismissed.

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                     CRIMINAL APPEAL NOS.484-487 of 2008
      SHEIKH JUMAN & ANR. ETC.     ...        APPELLANT(S)
                                  :VERSUS:

      STATE OF BIHAR                 ...           RESPONDENT(S)





                                  JUDGMENT


      Pinaki Chandra Ghose, J.
   1. These appeals are directed against the judgment and  order  dated  5th
      October, 2007 passed by the High  Court  of  Judicature  at  Patna  in
      Criminal Appeal Nos.122, 92, 98 and 123  of  2003,  whereby  the  High
      Court while confirming  the  conviction  of  the  appellants  and  the
      sentence of life term, commuted the death sentence of  Sheikh  Shamsul
      and Sheikh Gheyas, to imprisonment for life and dismissed the appeals.




   2. The brief facts necessary to dispose of  these  appeals  are  that  on
      19.01.1991 at about 6:00 pm, one Askari (since deceased), who happened
      to be the nephew of the informant (PW14) was at his grocery shop  when
      appellants armed with bomb explosives and guns  came  near  his  shop.
      Appellant Sheikh Shamsul hurled a bomb at the deceased and as a result
      of the explosion Askari fell down on the Gaddi of  the  shop.  In  the
      meanwhile, appellant Sheikh Ashfaq also attacked him by a  bomb  which
      hit him on the chest and exploded and consequently Askari died at  the
      Gaddi itself.  Informant’s another nephew, namely, Mohd. Asad, who was
      at the Flour Mill just opposite the shop of Askari, hearing the  sound
      of explosion came running to the shop and he was also  attacked  by  a
      bomb by accused Sheikh Gheyas. Due to explosion Mohd.  Asad  sustained
      severe injury, fell down near the shop  and  became  unconscious.  Md.
      Vasir (PW1) who was standing there was also injured.  On  hearing  the
      sound of the bomb explosion, villagers assembled there and  appellants
      fled away towards North, firing shots in the air. Injured  Mohd.  Asad
      was taken to Bhagalpur hospital by the villagers in critical condition
      but he succumbed to injuries at the hospital on the same day.


   3.  Motive of the  occurrence,  according  to  first  information  report
      (‘FIR’), is that two years prior  to  the  occurrence,  a  case  under
      Section 307 of IPC was filed by the informant against  the  appellants
      and  they  were  threatening  the  informant  to  withdraw  the  case,
      otherwise they would eliminate the whole family.


   4. The law was set into motion upon lodging of FIR  by  PW14  (informant)
      arising out of Fardbeyan being Ext. No.7 on the same day at 10:00  pm,
      at Shahkund Police Station. The FIR was registered as C.R. No.I-69  of
      2009. The post-mortem of the deceased was performed by Dr. H.I. Ansari
      (PW13). Looking to the post-mortem  note  of  deceased  Mohd.  Askari,
      marked Annexure A-13, there were found  explosive  blast  injuries  on
      chest cavity deep, face; both lungs and hear were  lacerated.  As  per
      the Post-mortem Report of deceased Mohd. Asad, there were found  blast
      explosive injury on abdominal cavity; lacerated and  bruise  skin  and
      lever. Both the deceased died due to injuries caused by powerful  bomb
      blast as per above stated post-mortem reports marked Ext.13 and 13/13.


   5. Upon completion of investigation and submission of the  charge  sheet,
      Sessions Case  No.309/22  of  1993/1999  was  registered  against  the
      accused. Thereafter, the Court of 1st Additional District  &  Sessions
      Judge, Bhagalpur, framed charges against the accused persons  for  the
      offences punishable under Sections 302, 302 read with Section  149  of
      IPC, Sections 3, 4 of the Explosive Substances Act, and Section 27  of
      the Arms Act. After they denied the said charges in their  statements,
      the evidence of prosecution witnesses was recorded.


   6.  After  recording  the  evidence  of  the  prosecution  witnesses  and
      considering all the relevant facts, the Trial Court vide its  judgment
      and order dated 4.02.2003 convicted accused No.3,  8  and  9  for  the
      offence punishable under section 302 of  IPC  and  Sections  3,  4  of
      Explosive Substances Act and sentenced accused  Nos.3  and  9  (Sheikh
      Shamsul and Sheikh Gheyas) to death since the Court did  not  want  to
      give them opportunity to commit third homicide  as  they  had  already
      been convicted previously in some other homicidal death case.  Accused
      No.8 was sentenced to imprisonment for life. The accused  No.7  Sheikh
      Chengwa was convicted for offence punishable under  Section  302  read
      with Section 149 IPC and Sections 3 & 4 of  the  Explosive  Substances
      Act and sentenced him to rigorous imprisonment for 10 years.  Rest  of
      the accused were convicted for the offences punishable  under  Section
      302 read with Section 149 of IPC and Section 27 of the  Arms  Act  and
      sentenced to undergo rigorous  imprisonment  for  a  period  of  three
      years.


   7. Being aggrieved by the aforesaid  judgment  and  order  of  the  Trial
      Court, the accused persons filed appeals before the High Court.  While
      1st Additional Sessions Judge, Bhagalpur, made Death Reference No.2 of
      2003 vide letter dated 18.02.2003 for confirmation of death  sentence,
      Criminal Appeals Nos.92, 98, 122-126 of 2003  were  preferred  by  the
      accused persons seeking acquittal.


   8. The High Court vide its judgment and order dated  5th  October,  2007,
      rejected the death reference and also dismissed the aforesaid  appeals
      filed by accused persons and confirmed their conviction. However,  the
      death sentence of accused Sheikh Samsul and Sheikh Gheyas was commuted
      to imprisonment for life. Aggrieved  by  the  aforesaid  judgment  and
      order passed by the High Court, the accused  persons  have  sought  to
      challenge the same before us in these appeals.


   9. Keeping in mind the position of law as enunciated in the case of Ganga
      Kumar Srivastava Vs. State of Bihar, (2005) 6 SCC 211,  pertaining  to
      the principles for  exercise  of   power  under  Article  136  of  the
      Constitution of India and settled by a series  of  decisions  of  this
      Court, we shall now examine the evidence adduced by  the  parties  and
      the materials on record and see that in view of the nature of  offence
      alleged  to  have  been  committed  by  the  appellants,  whether  the
      concurrent findings of fact call for interference  in  the  facts  and
      circumstances of the case.


  10. In the present case, there are concurrent findings of both the  Courts
      below as to the guilt of the  accused  persons.  The  High  Court  has
      discussed  basically  four  issues   in   its   judgment,   viz.   (a)
      interpretation of Section 172 of Code of Criminal Procedure, 1973; (b)
      veracity of the evidence  adduced;  (c)  relevance  of  overt  act  in
      conviction under Section 149 of the Penal Code; and (d) rarest of  the
      rare cases theory for confirming death sentence.


  11. On the first issue, the High Court  has  observed  that  police  dairy
      cannot be used as evidence in the case but to aid it in  such  inquiry
      or trial, while relying upon the judgment  of  this  Court  in  Habeeb
      Mohammad Vs. State of Hyderabad, AIR 1954 SC 51: 1954 SCR 475, wherein
      it was held that when attention of a  witness  is  not  drawn  to  his
      previous statement during the course of investigation, same cannot  be
      looked into in exercise of powers under Section 172(2) of the Code  of
      Criminal Procedure.  Apropos second issue, it was observed by the High
      Court that failure of witness to go to police station  and  lodge  the
      report on time without delay, and minor contradictions  pertaining  to
      presence of customers at the shop, in no way, affects the case of  the
      prosecution.


  12. High Court further found distinction between judgments  given  in  the
      case of Shambhu Nath Singh Vs. State of Bihar, AIR  1960  SC  725  and
      that of Ram Dular Rai & Ors. Vs. State of Maharashtra,  1961  SCR  (2)
      773, though  both  the  judgments  discuss  Section  149  of  the  IPC
      pertaining to unlawful assembly. With regard to third  issue,  it  was
      observed by the High Court that merely because  informant  (PW14)  was
      left unharmed or that all appellants did not enter into the shop,  the
      prosecution case cannot be rejected, since overt  act  of  acting  and
      omitting with regard to common object was proved  after  appraisal  of
      the evidence in the Court below. In support of the fourth  issue,  the
      High Court while relying upon its earlier judgments in State of  Bihar
      Vs. Sanjeet Rai and Anr., 2006 (4) PLJR 479 and  State  of  Bihar  Vs.
      Prajeet Kumar Singh, 2006 (2) PLJR 656, rejected the  death  reference
      holding that the case was not falling in the  category  of  rarest  of
      rare cases.


  13. While upholding the judgment and order of  conviction  passed  by  the
      Trial Court, the High Court has primarily relied upon the evidence  of
      eye-witnesses, PW14, PW4, PW5 and PW9 who were found to be trustworthy
      and reliable. The High Court held that the accused  were  sharing  the
      common object of doing away the deceased. However, from a  perusal  of
      the cross examinations of PW4 and  PW5,  it  appears  that  there  was
      personal enmity and PW3, PW4, PW14 were made  accused  in  a  case  of
      murder of Asfak, son of Sheikh Samsul, appellant herein. PW14 had also
      filed a case under Section 307 of IPC against the appellants two years
      prior to the date of the incident which was still pending.


  14. Further, looking to the evidence given by  PW9,  though  not  an  eye-
      witness, the factum of assault with a bomb on deceased Mohd. Asad  was
      corroborated. According to him he is also a witness to the seizure  of
      empty cartridge from Sheikh Ishteyaque.


  15. Mr. Huzefa Ahmadi, learned senior  counsel  for  appellants  contented
      that both the Courts below have committed an error in  convicting  the
      appellants for the offence punishable under Section  302  IPC,  along-
      with other accused. He submitted that there were material improvements
      made by PW14 in his deposition when compared to the fardbeyan given to
      the police on the date of the incident and no specific role  has  been
      attributed to the present appellants. But after  careful  analysis  of
      the fardbeyan (Ext.7), we have an entirely different  opinion.  It  is
      true that deposition is somewhere literally larger than the fardbeyan,
      however, it is no where contrary to it. It may rightly  be  said  that
      the deposition of PW14 is merely elaborated form of statement recorded
      before the police, with  minor  contradictions.  Oral  evidence  of  a
      witness could be looked with suspicion  only  if  it  contradicts  the
      previous statement.


  16. He further submitted that narration of the incident  by  the  deceased
      Asad to PW3, as stated by  PW3,  is  only  to  falsely  implicate  the
      present appellants. According to him, such  deposition  is  improbable
      since PW15 – Investigating Officer  of  the  case  and  PW12  did  not
      narrate that deceased had regained consciousness and named the accused
      and no other witness was examined to  prove  the  fact  that  deceased
      regained consciousness and most importantly no  recovery  of  gun  has
      been made. Thus, the prosecution  case  is  shrouded  with  reasonable
      doubt. It was further argued that in the light  of  judgment  of  this
      Court in the case of K. M. Ravi  and  Ors.  Vs.  State  of  Karnataka,
      (2009) 16 SCC 337, the appellants holding outside shop cannot be  held
      guilty, wherein it was held that “mere presence  or  association  with
      other members alone does not per se be sufficient to hold everyone  of
      them criminally liable for the offences committed by the others unless
      there was sufficient evidence on record to show  that  one  such  also
      indented to or knew the likelihood of commission of such an  offending
      act.”


  17. Reliance was further placed on the judgment of this  Court  in  Jodhan
      Vs. State of Madhya Pradesh, (2015) 11 SCC 52, wherein it was held  in
      paragraphs 25 & 26 that if the testimony is of an  interested  witness
      who have a motive to falsely implicate  the  accused  then  the  Court
      before relying upon his testimony should seek corroboration in  regard
      to material particulars. In paragraphs 28 & 29 also it was  held  that
      the testimony of the injured witness stands on a higher pedestal  than
      other witnesses and reliance should be placed on it unless  there  are
      strong grounds for rejection of his evidence. [See also  Hem  Raj  and
      Ors. Vs. State of Haryana, (2005) 10 SCC 614]


  18. Finally, it has been argued by the learned  senior  counsel  appearing
      for the appellants that the post-mortem report does  not  support  the
      prosecution story that injury was caused only by a powerful  bomb.  It
      was submitted that both the deceased were not close to each other  and
      deceased Asad was running towards the shop when a bomb  was  allegedly
      thrown at him. Other accused were standing with guns  in  their  hands
      but they did not share the common object  and  hence  cannot  be  held
      liable. In support of this, learned senior counsel relied on the  case
      of Bhim Rao and Ors. Vs.  State  of  Maharashtra,  (2003)  3  SCC  37,
      wherein it was observed:
           “In the absence of any material to the contrary,  it  should  be
           presumed that those members of the  original  unlawful  assembly
           who  only  shared  the  common  object  of  assaulting  deceased
           Prabhakar cannot be attributed with the subsequent change in the
           common object of some of the members of the assembly who entered
           the house of Prabhakar and caused grievous injuries to  him.  So
           far as the present appellants are concerned, who  stood  outside
           the house of the deceased and who  could  not  have  known  what
           actually transpired inside the house, the act of  those  members
           of the original unlawful assembly who entered the house,  cannot
           be attributed, hence, as contended by the  learned  counsel  for
           the appellants at the most these appellants will be liable to be
           punished for sharing the original common object which is only to
           assault the deceased, therefore, they can be held guilty  of  an
           offence   punishable   under Section    352 read    with Section
           149 only.”




  19. Mr. Ravi Bhushan, learned counsel appearing for the  respondent-State,
      on the other hand, supported the  order  of  conviction  and  sentence
      passed by both the Courts below. He submitted that judgments cited  by
      the counsel for appellants have no point relevant to the present case.
      The judgment given in the case of K. M. Ravi (supra), is not  relevant
      in whatsoever manner to the present case,  as  in  the  present  case,
      there was facilitating the act  of  hurling  of  bombs  by  the  other
      accused persons as well as captivating the relatives of  the  deceased
      so as to prevent them to come to his rescue. This shows  their  active
      participation in the crime though having overt act of  merely  holding
      guns outside the place of occurrence.


  20. It was further argued that the  position  cited  in  Bhim  Rao’s  case
      (supra) is different from that of the present  case.  PW14  and  other
      witnesses present with him were  prevented  from  saving  the  victims
      while bombs were hurled  at  the  deceased.  While  relying  upon  the
      evidence of PW4,  PW5,  PW6  and  PW16  and  other  witnesses,  it  is
      corroborated that after hurling of bomb  by  Shamsul  and  Ashfaq  the
      appellants fled away by firing in the air. One of the  appellants  was
      caught with hot cartridge tied in his lungi by PW-16 and this fact has
      been corroborated by PW7, PW9, PW14, PW15  and  PW16.  Therefore,  the
      prosecution case  leaves  no  room  for  doubt  whatsoever  about  the
      commission of offence by the appellants.








  21. We have seen in the instant  case  that  the  witnesses  have  vividly
      deposed about the genesis of the  occurrence,  the  participation  and
      involvement of the accused persons in the crime.  The  non-examination
      of the witnesses, who might have been there on the way to hospital  or
      the hospital itself when deceased narrated  the  incident,  would  not
      make the prosecution case unacceptable.  Similarly,  evidence  of  any
      witness cannot be  rejected  merely  on  the  ground  that  interested
      witnesses admittedly had enmity with the  persons  implicated  in  the
      case. The purpose of recoding of the  evidence,  in  any  case,  shall
      always be to unearth the truth of the case.  Conviction  can  even  be
      based on the testimony of a sole eye-witness,  if  the  same  inspires
      confidence.  Moreover,  prosecution  case  has  been  proved  by   the
      testimony of the eye-witness since corroborated by the other witnesses
      of the occurrence. We are constrained to reject the  submissions  made
      on behalf of the appellants.


  22. Keeping the facts and circumstances of the present case  in  mind,  we
      wish to emphasize the judgment of this Court in Jodhan’s case  (supra)
      and the relevant part of the judgment is reproduced hereunder:
           “On the bedrock of  the  aforesaid  pronouncement  of  law,  the
           submission  canvassed  by  Mr.  Sharma  does   not   merit   any
           consideration inasmuch as  the  prosecution  has  been  able  to
           establish not only the appellant’s presence but also his  active
           participation as a member of the unlawful assembly. He might not
           have thrown the bomb at the deceased, but thereby  he  does  not
           cease to be a member of  the  unlawful  assembly  as  understood
           within the ambit of Section 149 IPC and there is ample  evidence
           on record to safely conclude that all the  accused  persons  who
           have been convicted by the High Court  had  formed  an  unlawful
           assembly and there was common object to assault the deceased who
           succumbed to the injuries inflicted on him. Thus  analysed,  the
           submission enters into the realm of total insignificance.”




  23. In the instant case, the witnesses, as the High Court has found and we
      have no reason to differ, are reliable  and  have  stood  embedded  in
      their version and remained unshaken. They have vividly  deposed  about
      the genesis of occurrence, the participation and  involvement  of  the
      accused persons in  the  crime  and  the  injuries  inflicted  on  the
      deceased, and on each of them.


  24. Thus, in the light of the above discussion, we are of  the  view  that
      the present appeals are devoid of merits and the  judgment  passed  by
      the High Court does  not  warrant  interference.  These  appeals  are,
      accordingly, dismissed.


                                                           …………………………………..J.
                                     (Pinaki Chandra Ghose)






                                                           …………………………………..J.
                                     (Ashok Bhushan)
      New Delhi;
      February 23, 2017.

doctrine of judicial restraint.=whether FIR and the consequential proceedings alleging non-compoundable offences could be quashed by the High Court in exercise of its jurisdiction under Section 482 of Cr.P.C. on the basis of the settlement arrived at between the complainant and the respondents-accused.= we see no reason to differ with the view taken in Manoj Sharma’s case (supra) and several decisions of this Court delivered thereafter with respect to the doctrine of judicial restraint. In concluding hereinabove, we are not unmindful of the view recorded in the decisions cited at the Bar that depending on the attendant facts, continuance of the criminal proceedings, after a compromise has been arrived at between the complainant and the accused, would amount to abuse of process of Court and an exercise in futility since the trial would be prolonged and ultimately, it may end in a decision which may be of no consequence to any of the parties. In view of the discussion we made in the preceding paragraphs, in our opinion, it would be proper to keep the said point of law open. However, in the given facts, we dismiss this appeal.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.396 OF 2017
                 (Arising out of SLP(Crl.) No.1010 of 2012)

Central Bureau of Investigation   …          Appellant(s)
                                  :Versus:
Sadhu Ram Singla & Ors.           ...        Respondent(s)



                               J U D G M E N T

Pinaki Chandra Ghose, J.

Leave granted.
This appeal, by special leave, has been filed  assailing  the  judgment  and
order dated 2nd June, 2011 passed by the High Court of  Punjab  and  Haryana
at Chandigarh in Criminal Miscellaneous No.M-2829 of 2011, whereby the  High
Court while relying upon another judgment of the same High Court and on  the
basis of settlement of dispute, quashed  the  criminal  proceedings  against
the  respondents,  being  FIR  No.SIA-2001-E-0006  dated  28.12.2001   under
Sections 420 and 471 of Indian Penal Code [in short  ‘IPC’],  registered  at
Police Station, SIU(X)/SPE/CBI,  New  Delhi  and  the  criminal  proceedings
pending in the Court of learned Special Judicial  Magistrate,  CBI,  Punjab,
Patiala.

Brief facts of the case are as follows:  M/s.  Rom  Industries  Ltd.,  Mansa
Road, Bhatinda (Punjab),  which  is  respondent  No.3  herein,  (hereinafter
referred to as the “respondent-company”) was  dealing  with  State  Bank  of
Patiala, Bhatinda (City) Branch (for short “the Bank”) since  1976  and  was
availing the credit limits from a consortium  of  banks  with  the  Bank  as
leader and enjoyed total fund based credit limits from  the  banking  system
to an extent of Rs.31,500.00 lacs in  March,  1996.  However,  in  the  year
1996, due to destruction of stocks consisting of  Deolided  Cakes  lying  at
Bedi Port, Jamnagar in a cyclone storm  that  hit  Bedi  Port,  Jamnagar  on
19/20 June, 1996,  it claimed to have suffered heavy loss to the  extent  of
Rs.38.08 crores. The destruction of stocks could not be corroborated by  any
evidence. The respondent-company had been granted credit facilities  against
hypothecation of stocks  which  included  stocks  lying  at  the  port.  But
allegedly after Bank verification of the  stocks,  it  was  found  that  the
respondent-company had fraudulently obtained higher  credit  limits  on  the
basis of stock statements which appeared forged and false.  The  respondent-
company approached the Bank for grant of adhoc export packing  credit  limit
of Rs.10 crores in February 1995, which was sanctioned on 09.03.1995.

Law was set into motion when FIR  No.SIA-2001-E-0006  dated  28.12.2001  was
registered  at  Police  Station,  SIU(X)/SPE/CBI,  New  Delhi,  by  Shri  K.
Balachandran, Chief Vigilance Officer of the State  Bank  of  Patiala  under
Section 120-B read with Sections 420, 467, 468 and 471 of IPC,  against  the
Board of Directors including respondent Nos.1 & 2.  Charge-sheet  was  filed
before the learned  Special  Judicial,  Magistrate,  CBI,  Patiala,  Punjab,
against the respondents under Section 420/471 read with  Section  120(B)  of
IPC, for having entered into criminal conspiracy between 1995  to  1996  and
causing loss to State Bank of Patiala to the  extent  of  Rs.28.49/-  crores
through false stock statements, forged bank guarantee and  dishonest  misuse
of funds generated.

During the pendency of the proceedings before the Court of  learned  Special
Judicial Magistrate, CBI, Patiala,  Punjab,  a  compromise  was  arrived  at
between the Bank and the respondent-company  under  a  One  Time  Settlement
scheme of the Bank, through which sums of Rs.6  crores  and  Rs.1.25  crores
were deposited by the respondents and acknowledged by the Bank  vide  letter
dated  11.11.2009.  Thereafter  the  Bank  released   the   securities   and
guarantees of the respondents, withdrew the recovery proceeding  pending  in
the DRT and stated vide the aforesaid letter dated 11.11.2009  that  nothing
was  due  from  the  respondents  to  the  Bank.  An  application  filed  by
respondent No.1 for compounding of offences under  Section  320(2)  of  IPC,
was dismissed by the Trial Court on the ground that Section  471  read  with
468 of IPC is a non-compoundable offence.

Thereafter, the respondents approached the High Court,  invoking  its  power
under Section 482 of the Criminal Procedure Code, 1973 (in  short  ‘Cr.P.C.)
for quashing FIR No.SIA-2001-E-0006 dated 28.12.2001 and also the  resultant
proceedings  pending  before  the  Court   of   learned   Special   Judicial
Magistrate, CBI, Patiala, Punjab, on the basis of aforesaid settlement.  The
High Court by its judgment dated 2nd June, 2011, relied on  its  Full  Bench
judgment in the case of Kulwinder Singh & Ors. Vs.  State  of  Punjab  Anr.,
2007 (4) CTC 769, and on the basis of settlement  of  dispute,  quashed  the
criminal proceedings against the respondents.

The question which arises before us is no longer res  integra  i.e.  whether
FIR and the consequential  proceedings  alleging  non-compoundable  offences
could be quashed by the High Court in exercise  of  its  jurisdiction  under
Section 482 of Cr.P.C. on the basis of the  settlement  arrived  at  between
the complainant and the respondents-accused. Since the  question  before  us
revolves around clause 9 of Section 320 of Cr.P.C., the same  is  reproduced
herein as follows:
“320. Compounding of offences.-
(1)   xxx        xxx        xxx
(9) No offence shall be compounded except as provided by this section.”


We have heard learned Additional Solicitor General  appearing  for  the  CBI
and learned senior counsel appearing  for  the  respondents  at  length  and
carefully examined the materials  placed  on  record.  We  have  also  taken
notice of the fact that the counsel for the  appellant  in  High  Court  had
sought time for filing the reply but no reply was filed. We have also  taken
notice of the fact that the High Court  while  quashing  the  said  FIR  and
consequential proceedings, has relied on the Full  Bench  judgment  of  that
High Court in the case of Kulwinder Singh & Ors Vs. State of Punjab &  Anr.,
2007 (4) CTC 769, in which reliance was placed on the judgment delivered  by
this Court in the  case  of  Mrs.  Shakuntala  Sawhney  Vs.  Mrs.  Kaushalya
Sawhney & Ors., (1980) 1 SCC 63.

Learned Additional Solicitor General appearing for the  CBI  has  drawn  our
attention to the decision of this Court in Manoj Sharma Vs.  State  &  Ors.,
(2008) 16 SCC 1, wherein it was observed by this Court:

“22.  Since  Section  320  CrPC  has  clearly  stated  which  offences   are
compoundable and which are not, the High Court or even this Court would  not
ordinarily be justified in doing something indirectly  which  could  not  be
done directly. Even otherwise, it  ordinarily  would  not  be  a  legitimate
exercise of judicial power under Article 226 of the  Constitution  or  under
Section 482  CrPC  to  direct  doing  something  which  CrPC  has  expressly
prohibited. Section 320(9) CrPC expressly states that no  offence  shall  be
compounded except as provided by that Section.  Hence,  in  my  opinion,  it
would ordinarily not be a legitimate exercise of judicial  power  to  direct
compounding of a non-compoundable offence.”


We further wish to supply emphasis on the judgment delivered by  this  Court
in the case of State of Tamil Nadu Vs. R. Vasanthi Stanley & Anr., (2016)  1
SCC 376, wherein it was observed:
“15. As far as the load on  the  criminal  justice  dispensation  system  is
concerned it has an insegregable nexus with speedy trial. A  grave  criminal
offence or serious economic offence or for that matter the offence that  has
the  potentiality  to  create  a  dent  in  the  financial  health  of   the
institutions, is not to be quashed on the ground  that  there  is  delay  in
trial or the principle that when the matter has been settled  it  should  be
quashed to avoid the load on the system. That can  never  be  an  acceptable
principle or parameter, for that would amount to destroying the  stem  cells
of law and order in many a realm and further strengthen the marrows  of  the
unscrupulous litigations. Such a situation should never be conceived of.”


Further reliance was placed on the decision of this Court  in  the  case  of
Central Bureau of Investigation Vs. A. Ravishankar Prasad & Ors.,  (2009)  6
SCC 351, wherein it was held:
“39. Careful analysis of  all  these  judgments  clearly  reveals  that  the
exercise  of  inherent  powers  would  entirely  depend  on  the  facts  and
circumstances of each case. The object of incorporating inherent  powers  in
the Code is to prevent abuse of the process of the court or to  secure  ends
of justice.”


Lastly, reliance was placed upon another judgment of this Court  in  Central
Bureau of Investigation Vs. Maninder Singh, (2016) 1  SCC  389,  wherein  it
was held by this Court:
“19. In this case, the  High  Court  while  exercising  its  inherent  power
ignored all the facts viz. the impact of the offence, the use of  the  State
machinery to keep the matter pending for so  many  years  coupled  with  the
fraudulent  conduct  of  the   respondent.   Considering   the   facts   and
circumstances of the case at hand in the light of  the  decision  in  Vikram
Anantrai Doshi case, (2014) 15 SCC 29, the order of the  High  Court  cannot
be sustained.”


Resisting the aforesaid  submissions  it  was  canvassed  by  Mr.  Bishwajit
Bhattacharya, learned senior counsel  appearing  for  the  respondents  that
High  Court  has  judiciously  and  rightly   considered   the   facts   and
circumstances of the present case. Relying upon the judgment of  this  Court
in Gian Singh Vs. State of Punjab & Anr., (2012) 10 SCC 303, learned  senior
counsel appearing for the respondents strenuously urged  that  the  offences
in the present case are not heinous offences. He further drew our  attention
towards the relevant part of Full  Bench  judgment  of  the  High  Court  in
Kulwinder Singh & Ors. Vs.  State  of  Punjab  &  Anr.  (supra),  which  was
reproduced in the impugned judgment and the same is reproduced hereunder:
“26. In Mrs. Shakuntala Sawhney v. Mrs. Kaushalya Sawhney  &  Ors.,(1980)  1
SCC 63, Hon'ble Krishna Iyer, J. aptly summed up the essence  of  compromise
in the following words :-

The finest hour  of  justice  arrives  propitiously  when  parties,  despite
falling apart, bury the hatchet and weave a sense of fellowship or reunion.

27. The power to do complete justice is the very essence of  every  judicial
justice dispensation system. It cannot be diluted by  distorted  perceptions
and is not a slave to anything; except to the  caution  and  circumspection,
the standards of which the  Court  sets  before  it,  in  exercise  of  such
plenary and unfettered power inherently  vested  in  it  while  donning  the
cloak of compassion to achieve the ends of justice. No embargo,  be  in  the
shape of Section 320(9) of the Cr.P.C.  or any other such  curtailment,  can
whittle down the power under Section 482 of the Cr.P.C.”


Since the  present  case  pertains  to  the  crucial  doctrine  of  judicial
restraint, we are of the considered opinion that encroaching into the  right
of the other organ of the government would  tantamount  clear  violation  of
the rule of law which is one of the basic structure of the  Constitution  of
India. We wish to supply emphasis on para 21  of  the  Manoj  Sharma’s  case
(supra) which is as follows:
“21. Ordinarily, we would have agreed with Mr. B.B. Singh. The  doctrine  of
judicial restraint which has been emphasised repeatedly by this  Court  e.g.
in Aravali Golf Club v.  Chander Hass (2008) 1 SCC 683 and Govt. of A.P.  v.
P. Laxmi Devi (2008) 4 SCC 720, restricts the power of the  Court  and  does
not permit  the  Court  to  ordinarily  encroach  into  the  legislative  or
executive domain. As observed by this Court in the  above  decisions,  there
is a broad separation of powers in the Constitution  and  it  would  not  be
proper for one organ of the State to encroach into  the  domain  of  another
organ.”


Having carefully considered the singular  facts  and  circumstances  of  the
present case, and also the law  relating  to  the  continuance  of  criminal
cases where the complainant and the accused had  settled  their  differences
and had arrived at an amicable arrangement, we see no reason to differ  with
the view taken in Manoj Sharma’s case (supra) and several decisions of  this
Court  delivered  thereafter  with  respect  to  the  doctrine  of  judicial
restraint. In concluding hereinabove, we  are  not  unmindful  of  the  view
recorded in the decisions cited at the Bar that depending on  the  attendant
facts, continuance of the criminal proceedings, after a compromise has  been
arrived at between the complainant and the accused, would  amount  to  abuse
of process of Court and an exercise in futility since  the  trial  would  be
prolonged and ultimately, it may end in  a  decision  which  may  be  of  no
consequence to any of the parties.

In view of the discussion we  made  in  the  preceding  paragraphs,  in  our
opinion, it would be proper to keep the said point of  law  open.   However,
in the given facts, we dismiss this appeal.



……..………………………J
                                             (Pinaki Chandra Ghose)


……..………………………J
                                             (Amitava Roy)
New Delhi;
February 23, 2017.

disability pension=we hold that the Tribunal did not examine the case at hand in the light of the Army Pension Regulations, 1961, the Entitlement Rules for Casualty Pensionary Awards, 1982 and General Rules of Guide to Medical Officers (Military Pensions) 2002 and, therefore, the impugned order cannot be sustained. Applying the principles of Dharamvir Singh’s case and Rajbir Singh’s case, it has to be presumed that the disability of the appellant bore a casual connection with the service conditions. The appellant was diagnosed to be suffering from medical disability at 60% for life on 09.09.2009 and he was discharged from service on 7.10.2009. After invalidation from the service, the appellant passed away on 01.06.2015. By order dated 13.02.2017 in I.A. No. 3/2016, the legal heirs have been ordered to be substituted. Hence wife of the appellant and other legal heirs shall be entitled to disability pension as per the Rules.

                                                                  REPORTABLE
                          IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION


                        CIVIL APPEAL NO. 2633 OF 2017

EX. GNR. LAXMANRAM POONIA (DEAD)
THROUGH    LRS.                                                  ….Appellant

                                              Versus

UNION OF INDIA AND ORS.
…Respondents

                               J U D G M E N T
R. BANUMATHI J.

This appeal arises out of the order dated 21.03.2014  passed  by  the  Armed
Forces Tribunal, Regional Bench, Jaipur, Rajasthan in O.A. No. 200 of  2010,
thereby declining  award  of  disability  pension  to  the  appellant.   The
Tribunal vide order dated 23.02.2016 also dismissed M.A.  No.  390  of  2015
filed by the appellant seeking leave to  appeal  under  Section  31  of  the
Armed Forces Tribunal Act.



2.    The facts relevant for disposal of this appeal are  as  follows:-  The
appellant was  enrolled  in  the  Indian  Army  on  14.09.2005.   His  basic
military training was convened at Army Air Defence Centre Nasik  Road  Camp,
commencing from 16.09.2005 and after completion of training, he  was  posted
at 27 AD Regiment for further service. It is the case of the appellant  that
on the eve of Diwali Festival in November, 2007, he  was  overburdened  with
work due to scarcity of staff.   Due to continuous restless duty  hours  for
several days, he suffered  hypertension  resulting  in  lack  of  sleep  and
hunger.   Ultimately, he requested the Commanding Officer  of  his  Unit  to
sanction him leave considering his critical condition. However,  instead  of
granting leave, the Commanding Officer got  him  admitted  in  174  Military
Hospital  on  11.11.2007,  acknowledging  the  critical  condition  of   the
appellant.   The Doctor diagnosed the appellant to be suffering  from  acute
schizophrenia like psychotic disorder. The  appellant  was  discharged  from
174 Military Hospital on 14.03.2008. Thereafter, he was shifted to  Military
Hospital Chandimandir and was admitted to psychiatric  ward  on  28.08.2008.
He was subjected to a Military Board held at 174 Military Hospital  for  his
recategorisation.  After some time, he was granted  sick  leave  for  a  few
days.   However,  he  was  again  admitted  to  174  Military  Hospital   on
15.02.2009, and was also subjected to a Medical  Board  and  thereafter,  he
was discharged from the hospital and was sent to his Unit.



3.    As per the appellant,  he  was  again  entrusted  with  hard  duty  on
02.05.2009 and was also compelled to work at night hours, because  of  which
the disease so detected  again  aggravated.     Ultimately,  he  had  to  be
admitted to Command Hospital Chandimandir on 05.05.2009, from where  he  got
discharged on  12.06.2009.   He  was  again  admitted  to  Command  Hospital
Chandimandir on 10.07.2009, from where he was discharged on 06.10.2009.   He
was  brought  before  a  duly  constituted  Invaliding  Medical   Board   on
09.09.2009 to assess the cause and degree of  disablement.   The  Invaliding
Medical Board opined that he was suffering from  ‘acute  Schizophrenia  like
psychotic disorder’. Medical Board further opined that the disability  being
constitutional in  nature  is  not  connected  with  Military  Service.  His
disability  was  assessed  at  60%  for  life  but  was  viewed  as  neither
attributable to nor aggravated by  Military  Service.   Ultimately,  he  was
invalided out of service with effect from 07.10.2009 under  Rule  13(3)(iii)
of the Army Rules, 1954.   His claim for grant  of  disability  pension  was
forwarded  to  the  Principal  Controller  of  Defence  Accounts   (Pension)
Allahabad, which was rejected vide order  dated  02.07.2010  on  the  ground
that the disability suffered by the applicant  is  neither  attributable  to
nor aggravated by Military Service.



4.    The appellant challenged the  order  dated  02.07.2010  by  filing  an
application before the Tribunal seeking  disability  pension.  The  Tribunal
dismissed  the  application  filed  by  the  appellant  holding   that   the
disability being ‘constitutional’ in nature is not connected  with  Military
Service. His disability was assessed at 60% for  life;  but  was  viewed  as
neither attributable to nor aggravated by  Military  Service.  The  Tribunal
specifically held that though the  Invaliding  Medical  Board  categorically
opined that he  was  suffering  from  ‘Acute  Schizophrenia  like  psychotic
disorder’, the disability of the applicant being  constitutional  in  nature
cannot be considered to be connected with Military Service.   Thus,  holding
that there was no casual connection between  disablement  and  the  Military
Service for attributability or aggravation  to  be  conceded,  the  Tribunal
dismissed the application.



5.     The Appellant Laxman Ram Poonia expired  on  01.06.2015  at  Maulsar.
The wife of the appellant filed application being M.A.  No.  390/2015  under
Section 31 of Armed Forces Tribunal Act, 2007 before  the  Tribunal  seeking
leave to file appeal  before  this  Court  against  the  final  order  dated
21.03.2014 passed by Armed Forces Tribunal in  O.A.  No.  200/2010  and  the
same  was  dismissed  by  the  Tribunal   vide   order   dated   23.02.2016.
Challenging the order passed by the Tribunal, wife of Laxman Ram Poonia  has
filed the present  Civil  Appeal  under  Section  30  of  the  Armed  Forces
Tribunal Act, 2007.

6.    Learned counsel for the appellant submitted that the Tribunal was  not
justified in dismissing the application filed by the appellant ignoring  the
settled position of law that if the disability for  which  a  personnel  was
invalided out of service was not there at the time of  recruitment,  as  per
the decision in Dharamvir Singh v. Union of India and Ors.         (2013)  7
SCC 316, then it must be  presumed  that  the  disability  occurred  due  to
Military Service. The counsel contended that relying solely on  the  opinion
of Medical Board, it could not  have  been  said  that  the  disability  was
neither attributable to nor aggravated by  the  Military  Service.   Drawing
our attention to Rule 14 of the Entitlement Rules  for  Casualty  Pensionary
Awards, 1982, the appellant contended that the Tribunal ought to  have  held
that Laxman Ram Poonia developed Schizophrenia due to Military  Service  and
the conditions for awarding disability pension are  satisfied  and  Tribunal
should have awarded the disability pension.



7.     Learned Additional Solicitor General contended that  the  opinion  of
the Medical Board that the disease  is  held  neither  attributable  to  nor
aggravated by Military Service  is  unimpeachable  so  far,  and  thus,  the
appellant was rightly denied disability pension.  It was  further  contended
that psychiatric disorder of the person cannot be detected  by  the  Medical
Board conducting medical examination at the time of enrollment  in  service,
in the absence of previous history or overt manifestation and it was on  the
appellant to specifically prove  that  he  was  not  suffering  from  ‘Acute
Schizophrenia like psychotic disorder’ at the time of his enrollment,  which
he  failed  to  so.  The  Additional  Solicitor   General   contended   that
application filed by the appellant seeking disability  pension  was  rightly
dismissed by the Tribunal and no reason warranting interference.



8.     We have heard the  parties  before  us  and  have  also  perused  the
impugned order and materials available on record.



9.    When the appellant was enrolled in  the  Indian  Army  on  14.09.2005,
nothing was recorded in his service record that he was  suffering  from  any
disease or disability.  Likewise, during the entire period of  training  and
while he was performing his service at 27 AD Regiment till 2007,  there  was
no sign of any abnormal behaviour or disability.   For the  first  time,  in
or about  2007,  the  appellant  is  alleged  to  have  shown  his  agitated
behaviour.  It is the case of the respondent that on the expiry of his  sick
leave  on  11.12.2008,  the  appellant  was  admitted  to  Command  Hospital
(Western Command) Chandimandir where he was downgraded to  medical  category
S3(T-24)  H1A1P1E1  for  six  months  with  effect  from  13.03.2008.    The
appellant was again admitted to the  Military  Hospital  on  10.02.2009  for
review  of  his  medical  category  where  his  medical  categorization  was
upgraded  to  S2  (T-24)  HIAIPIEI  with  effect  from  11.02.2009  and  was
discharged from  the  hospital  on  18.02.2009.   The  appellant  was  again
admitted to the Command Hospital  Chandimandir  on  05.05.2009  and  he  was
finally discharged from the service on 26.06.2009.  Considering  appellant’s
disability and percentage of disability, as assessed by the  Medical  Board,
the respondents found it apposite to invalidate  appellant’s  service  under
the provisions of Rule 13(3)(iii) of the Army Rules, 1954.



10.   The point falling for consideration is whether the schizophrenia  like
psychotic disorder  disability  of  the  appellant  Laxman  Ram  Poonia  was
attributable  or  aggravated  due  to  Military  Service  and  whether   the
appellant is entitled to disability pension.



11.   Regulation 173 of Pension Regulations for the Army, 1961  specifically
deals with the primary conditions for the grant of  disability  pension.  It
reads as under:-
“173.  Primary  conditions  for  the  grant  of  disability  pension.—Unless
otherwise specifically provided a disability pension consisting  of  service
element and disability element may  be  granted  to  an  individual  who  is
invalided out of service on account of a disability  which  is  attributable
to or aggravated by military service in non-battle casualty and is  assessed
at 20% or over.

The question whether a  disability  is  attributable  to  or  aggravated  by
military service shall be determined under the rule in Appendix II.”

By a bare perusal of the aforesaid Regulation, it is clear  that  disability
pension in normal course is granted to an individual: (i) who  is  invalided
out of service on account of  a  disability  which  is  attributable  to  or
aggravated by Military Service, and (ii) who is  assessed  at  20%  or  over
disability, unless specifically provided otherwise.



12.   A disability “attributable to or aggravated by  military  service”  is
determined as per the Entitlement  Rules  for  Casualty  Pensionary  Awards,
1982, as shown in Appendix II.    Rule  5  of  the  said  Rules  relates  to
approach to be adopted while considering  the  question  of  entitlement  to
casualty pension award. It lays down certain presumptions to be  made  while
evaluating the disabilities.  Rule 5 reads as under:-
“5. The approach to the  question  of  entitlement  to  casualty  pensionary
awards and evaluation of  disabilities  shall  be  based  on  the  following
presumptions:

Prior to and during service

(a) A member  is  presumed  to  have  been  in  sound  physical  and  mental
condition upon entering service except as to physical disabilities noted  or
recorded at the time of entrance.

(b) In the event of  his  subsequently  being  discharged  from  service  on
medical grounds any deterioration in his health, which has taken  place,  is
due to service.”

From Rule 5 we find that a general presumption is to be drawn that a  member
is presumed to have  been  in  sound  physical  and  mental  condition  upon
entering service except as to physical disabilities  noted  or  recorded  at
the time of entrance. If a person is  discharged  from  service  on  medical
ground for deterioration in his  health  it  is  to  be  presumed  that  the
deterioration in the health has taken place due to service.

13.   Other relevant provisions for our purposes  are  Rules  14(a),  14(b),
14(c) and 14(d) of Entitlement Rules for Casualty  Pensionary  Awards,  1982
as  amended  vide  Government  of  India,   Ministry   of   Defence   Letter
No.1(1)/81/D(Pen-C) dated 20-6-1996, and the same read as follows:-
Diseases:

14. (a) For acceptance of a disease as  attributable  to  military  service,
the following two conditions must be satisfied simultaneously:

(i) That the disease has arisen during the period of military service, and

(ii) That the disease has been caused by the  conditions  of  employment  in
military service.

(b) If medical authority holds, for reasons to be stated, that  the  disease
although present at the time of enrolment could not have  been  detected  on
medical examination prior to acceptance for service, the disease,  will  not
be deemed to have arisen during service. In case  where  it  is  established
that the military service did not  contribute  to  the  onset  or  adversely
affect the course (sic of the) disease, entitlement for casualty  pensionary
award will not be conceded even if the disease has arisen during service.

(c) Cases in which it is established that  conditions  of  military  service
did not determine or contribute to the onset of the disease but,  influenced
the subsequent course of the disease, will fall for acceptance on the  basis
of aggravation.

(d) In case  of  congenital,  hereditary,  degenerative  and  constitutional
diseases which  are  detected  after  the  individual  has  joined  service,
entitlement to disability  pension  shall  not  be  conceded  unless  it  is
clearly established that the course of such disease was  adversely  affected
due to factors related to conditions of military services.”

14.   After referring to the above amended Rules  14(a),  14(b),  14(c)  and
14(d)  of  Entitlement  Rules  for  Casualty  Pensionary  Awards,  1982,  in
Dharamvir Singh v. Union of India and Ors. (2013)  7  SCC  316,  this  Court
clarified the law on the point in the following words:-
“21.1. As per Rule 14(a) we notice that  for  acceptance  of  a  disease  as
attributable to military service, conditions are to be  satisfied  that  the
disease has been arisen during the  military  service,  and  caused  by  the
conditions of employment in military service which is similar to Rule  14(c)
of the printed version as relied on by the appellant. Rule  14(b)  cited  by
the respondents is also similar to the published Rule 14.

21.2. Rule 14(c) cited by the respondents relates to the cases in  which  it
is established that conditions of military  service  did  not  determine  or
contribute to the onset  of  the  disease  but,  influenced  the  subsequent
course  of  the  disease,  will  fall  for  acceptance  on  the   basis   of
aggravation.

21.3. Rule 14(d) cited by the respondents  relates  to  diseases  which  are
detected  after  the  individual  has  joined  the  service,  which  entails
disability pension but it is to be  established  that  the  course  of  such
disease was adversely affected due to factors related to the  conditions  of
military service.

22. If the amended version of  Rule  14  as  cited  by  the  respondents  is
accepted to be the Rule applicable in the present case, even then  the  onus
of proof shall lie on the respondent employers in terms of Rule  9  and  not
the claimant and in case of any reasonable doubt the benefit  will  go  more
liberally to the claimants.”

15.   Further, referring to the Pension Regulations for the Army,  1961  and
the General Rules of Guide to Medical Officers (Military Pensions) 2002  and
observing that whether deterioration  of  disability  was  due  to  Military
Service or not will vary according to the nature of  disease/disability,  in
paras (23) to (26) of Dharamvir (supra), this Court held as under:-
“23. The Rules to be followed by the Medical Board in  disposal  of  special
cases have been shown under Chapter VIII of the General Rules  of  Guide  to
Medical  Officers  (Military  Pensions),   2002.   Rule   423   deals   with
“Attributability to service” relevant portion of which reads as follows:

“423. (a) For the purpose of determining whether the cause of  a  disability
or death resulting from disease is or is not attributable to service, it  is
immaterial whether  the  cause  giving  rise  to  the  disability  or  death
occurred in an area declared to be a field service/active  service  area  or
under normal  peace  conditions.  It  is  however,  essential  to  establish
whether the disability or death bore a causal connection  with  the  service
conditions. All evidence both direct and circumstantial will be  taken  into
account and benefit of reasonable doubt,  if  any,  will  be  given  to  the
individual. The evidence to be accepted as reasonable doubt for the  purpose
of these instructions should be of a degree of  cogency,  which  though  not
reaching certainty, nevertheless carries a high degree  of  probability.  In
this connection, it will be remembered that proof  beyond  reasonable  doubt
does not mean proof beyond a shadow of doubt. If the evidence is  so  strong
against an individual as to leave  only  a  remote  possibility  in  his/her
favour, which can be dismissed with the sentence ‘of course it  is  possible
but not in the least probable’ the case is proved beyond  reasonable  doubt.
If on the other hand, the evidence  be  so  evenly  balanced  as  to  render
impracticable a determinate conclusion one way or the other, then  the  case
would be one in  which  the  benefit  of  the  doubt  could  be  given  more
liberally to the individual, in  cases  occurring  in  field  service/active
service areas.
*     *     *
(c) The cause of a disability or death resulting  from  a  disease  will  be
regarded as attributable to service when it is established that the  disease
arose during service and the conditions and circumstances  of  duty  in  the
Armed Forces determined and contributed to the onset of the disease.  Cases,
in which it is established that service  conditions  did  not  determine  or
contribute to the onset of the disease but influenced the subsequent  course
of the disease, will be regarded as aggravated by  the  service.  A  disease
which has led to an individual’s  discharge  or  death  will  ordinarily  be
deemed to have arisen in service if no note of it was made at  the  time  of
the individual’s acceptance for service in the  Armed  Forces.  However,  if
medical opinion holds, for reasons to be stated that the disease  could  not
have been detected on medical examination prior to acceptance  for  service,
the disease will not be deemed to have arisen during service.

(d) The question, whether a disability or death resulting  from  disease  is
attributable to or aggravated by service or not, will be decided as  regards
its medical aspects by a Medical Board or by the medical officer  who  signs
the Death  Certificate.  The  Medical  Board/Medical  Officer  will  specify
reasons for their/his opinion. The  opinion  of  the  Medical  Board/Medical
Officers, insofar as it relates to the actual cause  of  the  disability  or
death and the circumstances in which  it  originated  will  be  regarded  as
final. The question whether the cause and the  attendant  circumstances  can
be accepted as attributable to/aggravated by  service  for  the  purpose  of
pensionary benefits will, however, be decided  by  the  pension  sanctioning
authority.”

24. Therefore, as per Rule 423 the following procedures are to  be  followed
by the Medical Board:

24.1. Evidence both direct and circumstantial to be taken  into  account  by
the Board  and  benefit  of  reasonable  doubt,  if  any  would  go  to  the
individual;

24.2. A disease which has led to an individual’s  discharge  or  death  will
ordinarily be treated to have been arisen in service, if no note of  it  was
made at the time of the individual’s acceptance for  service  in  the  Armed
Forces.

24.3. If the medical opinion holds that the  disease  could  not  have  been
detected on medical examination prior to  acceptance  for  service  and  the
disease will not be deemed to have been arisen during military  service  the
Board is required to state the reason for the same.

25. Chapter II of the Guide to Medical Officers  (Military  Pensions),  2002
relates to “Entitlement: General Principles”. In the opening Para 1,  it  is
made clear that the Medical Board should examine cases in the light  of  the
etiology of the particular disease and after considering  all  the  relevant
particulars of a case, record their conclusions with reasons in support,  in
clear terms and in a language which the Pension Sanctioning Authority  would
be able to appreciate fully  in  determining  the  question  of  entitlement
according to the Rules. Medical officers  should  comment  on  the  evidence
both for and against the concession of entitlement; the aforesaid  paragraph
reads as follows:
“1. Although the certificate of a  properly  constituted  medical  authority
vis-à-vis  the  invaliding  disability,  or  death,  forms  the   basis   of
compensation payable by the Government, the  decision  to  admit  or  refuse
entitlement is not solely a matter which can be determined  finally  by  the
medical authorities alone. It may require also the  consideration  of  other
circumstances  e.g.  service  conditions,  pre-  and  post-service  history,
verification of wound or injury,  corroboration  of  statements,  collecting
and weighing the value of  evidence,  and  in  some  instances,  matters  of
military law and discipline.  Accordingly,  Medical  Boards  should  examine
cases in the light of the etiology  of  the  particular  disease  and  after
considering  all  the  relevant  particulars  of  a   case,   record   their
conclusions with reasons in support, in clear terms and in a language  which
the Pension Sanctioning Authority, a lay body, would be able  to  appreciate
fully in determining the question of entitlement according to the Rules.  In
expressing their opinion Medical Officers should  comment  on  the  evidence
both for and against the concession of entitlement. In this  connection,  it
is as well to remember that  a  bare  medical  opinion  without  reasons  in
support will be of no value to the Pension Sanctioning Authority.”

26. Para 6 suggests the procedure to be followed by service  authorities  if
there is no note, or adequate note, in the  service  records  on  which  the
claim is based.”


16.   We have extensively quoted the judgment from  Dharamvir  Singh’s  case
as it has referred and quoted  almost  all  the  governing  regulations  and
rules like Pension Regulations for the Army,  1961,  the  Entitlement  Rules
for Casualty Pensionary Awards, 1982 and General Rules of Guide  to  Medical
Officers (Military Pensions) 2002. After referring to the above  Regulations
and Rules in Dharamvir Singh (supra) in para  (29),  this  Court  summarized
the legal position as under:-
“29. A conjoint reading of various provisions, reproduced  above,  makes  it
clear that:

29.1. Disability pension to be granted to an  individual  who  is  invalided
from service on  account  of  a  disability  which  is  attributable  to  or
aggravated by military service in non-battle casualty  and  is  assessed  at
20% or over. The  question  whether  a  disability  is  attributable  to  or
aggravated by military service to be determined under the Entitlement  Rules
for Casualty Pensionary Awards, 1982 of Appendix II (Regulation 173).

29.2. A member is to be presumed in  sound  physical  and  mental  condition
upon entering service if  there  is  no  note  or  record  at  the  time  of
entrance. In the event of his subsequently being discharged from service  on
medical grounds any deterioration in his health is to  be  presumed  due  to
service [Rule 5 read with Rule 14(b)].

29.3. The onus of proof is not on the claimant (employee), the corollary  is
that onus of proof that  the  condition  for  non-entitlement  is  with  the
employer. A claimant has a right to derive benefit of any  reasonable  doubt
and is entitled for pensionary benefit more liberally (Rule 9).

29.4. If a disease is accepted to have been as having arisen in service,  it
must also be established that the conditions of military service  determined
or contributed to the onset of the disease and that the conditions were  due
to the circumstances of duty in military service [Rule 14(c)].

29.5. If no note of any disability or  disease  was  made  at  the  time  of
individual’s acceptance for military service, a disease which has led to  an
individual’s discharge or death will be deemed to  have  arisen  in  service
[Rule 14(b)].

29.6. If medical  opinion  holds  that  the  disease  could  not  have  been
detected on medical examination prior to  the  acceptance  for  service  and
that disease will not be deemed to have arisen during service,  the  Medical
Board is required to state the reasons [Rule 14(b)]; and

29.7. It is mandatory for the Medical Board to follow  the  guidelines  laid
down in Chapter II of the Guide to  Medical  Officers  (Military  Pensions),
2002 — “Entitlement: General Principles”, including Paras  7,  8  and  9  as
referred to above (para 27).”

17.   The law laid down in Dharamvir (supra) was  re-affirmed  in      Union
of India and Anr. v. Rajbir Singh  (2015)  12  SCC  264,  where  this  Court
observed that the legal position laid down in Dharamvir Singh’s case  is  in
tune with the Pension Regulations,  the  Entitlement  Rules  and  Guidelines
issued to the Medical Officers. Relevant excerpt from the said  judgment  is
contained in paras (14) and (15), which read as under:-
“14. The legal position as stated in Dharamvir Singh case (2013) 7  SCC  316
is, in our opinion, in tune with the Pension  Regulations,  the  Entitlement
Rules and the Guidelines issued to the Medical Officers. The essence of  the
rules, as seen earlier, is that a member of the armed forces is presumed  to
be in sound physical and mental condition at the  time  of  his  entry  into
service if there is no note or record to the contrary made at  the  time  of
such entry. More importantly, in the event of his subsequent discharge  from
service on medical ground, any deterioration in his health  is  presumed  to
be due to military service.  This  necessarily  implies  that  no  sooner  a
member of the force is discharged  on  medical  ground  his  entitlement  to
claim disability pension will arise unless of course the employer  is  in  a
position to rebut the presumption that the disability which he suffered  was
neither attributable to nor aggravated by military service.

15. From Rule 14(b) of the Entitlement Rules it is  further  clear  that  if
the medical opinion were to hold that the disease suffered by the member  of
the armed forces could not  have  been  detected  prior  to  acceptance  for
service, the Medical Board must state the reasons for saying  so.  Last  but
not the least is the fact that  the  provision  for  payment  of  disability
pension is a beneficial provision which ought to  be  interpreted  liberally
so as to benefit those who have been sent home with a  disability  at  times
even before they completed their tenure  in  the  armed  forces.  There  may
indeed be  cases,  where  the  disease  was  wholly  unrelated  to  military
service, but, in order that denial of disability pension  can  be  justified
on that ground, it  must  be  affirmatively  proved  that  the  disease  had
nothing to do with such service. The burden to establish such  a  disconnect
would lie heavily  upon  the  employer  for  otherwise  the  rules  raise  a
presumption that the deterioration in  the  health  of  the  member  of  the
service is on account of military service or aggravated  by  it.  A  soldier
cannot be asked to prove that the disease was contracted by him  on  account
of military service or was aggravated by the same. The  very  fact  that  he
was upon proper physical and other tests found fit  to  serve  in  the  army
should rise as indeed the rules do provide for a  presumption  that  he  was
disease-free at the  time  of  his  entry  into  service.  That  presumption
continues till it is proved by the employer that  the  disease  was  neither
attributable to nor aggravated by military service. For the employer to  say
so, the least that is required is a statement  of  reasons  supporting  that
view. That we feel is the true essence of the rules which ought to  be  kept
in view all the time while dealing with cases of disability pension.”

18.   In the present  case,  as  per  the  opinion  of  the  Medical  Board,
disability attending the appellant is  acute  schizophrenia  like  psychotic
disorder and assessed percentage of the disablement is  60%  for  life.  The
Medical Board in its report  dated  09.09.2009  has  also  opined  that  the
disability is neither attributable to nor aggravated  by  Military  Service.
The relevant portion of Medical Board’s opinion is as under:-
“1.  Though the disablement has been mentioned in percentage in  para  6  of
Part V, this does not mean eligibility  for  disability  pension  since  the
Disability/Disabilities is/are neither attributable  to  nor  aggravated  by
service”

2.  Opinion of assessment by the Board is recommendatory in  nature  and  is
subject to acceptance by Pension Sanctioning Authority.
                                     Or
1.  Individual  is   not   entitled   for   disability   pension   for   the
disability/disabilities   since   the   same   is/are    not    attributable
to/aggravated by service.

2.  Opinion of assessment by the Board is recommendatory in  nature  and  is
subject to acceptance by Pension Sanctioning Authority.”

Notably, the Medical Board has not  given  any  reason  in  support  of  its
opinion, particularly, in reference to the fact that there was  no  note  of
such disease or disability available in the service record of the  appellant
at the time of entering Military Service.

19.   Learned Additional Solicitor General  appearing  for  respondent-Union
of India has submitted that when  the  Medical  Board  recorded  a  specific
finding that the disability was neither attributable to  nor  aggravated  by
the Military Service, the same must be given due weight and  credence.    In
support of his contention, the learned counsel placed reliance on dictum  of
this Court in Union of India v. Ravinder Kumar (2015) 12  SCC  291,  wherein
it was held as under:-
“4.  This Court recently decided an identical case  in  Union  of  India  v.
Jujhar Singh (2011) 7 SCC 735 and after  reconsidering  a  large  number  of
earlier judgments including Ministry of Defence v. A.V. Damodaran  (2009)  9
SCC 140, Union of India v. Baljit Singh (1996) 11 SCC 315   and  ESI  Corpn.
v. Francis De Costa (1996) 6 SCC 1, came to the conclusion that in  view  of
Regulation 179, a discharged person can be granted disability  pension  only
if the disability is attributable to or aggravated by Military  Service  and
such a finding has been recorded by Service  Medical  Authorities.  In  case
the Medical Authorities record the  specific  finding  to  the  effect  that
disability was neither  attributable  to  nor  aggravated  by  the  Military
Service, the court should not ignore such a  finding  for  the  reason  that
Medical Board is specialised authority composed of  expert  medical  doctors
and it is a final authority to give opinion  regarding  attributability  and
aggravation  of  the  disability  due  to  the  Military  Service  and   the
conditions of service resulting in the  disablement  of  the  individual.  A
person claiming disability pension must be able to show a  reasonable  nexus
between the act, omission or commission resulting in  an  injury/ailment  to
the person and the normal expected  standard  of  duties  and  way  of  life
expected from such person. [See also Govt. of India  (Ministry  of  Defence)
v. Ajit Singh (2009) 7 SCC 328.]”

20.   There is no gainsaying that the opinion of the  Medical  Board,  which
is an expert body has to be given due weight and credence.  But the  opinion
of the Medical Board cannot be read in isolation;  it  has  to  be  read  in
consonance with the Entitlement Rules for Casualty Pensionary  Awards,  1982
and General Rules of Guide to Medical  Officers  (Military  Pensions)  1982.
As per Chapter II of the Guide  to  Medical  Officers  (Military  Pensions),
2002, which relates to “Entitlement: General Principles”, it is  made  clear
that the Medical Board should examine cases in the light of the etiology  of
the  particular  disease  and  only  after  considering  all  the   relevant
particulars of a case, the board should record its conclusions with  reasons
so as to enable the Pension Sanctioning Authority to  examine  the  question
of entitlement of pension as per Rules.



21.   As referred to above, in Dharamvir Singh’s case, it was observed  that
it is mandatory for the Medical Board to follow the guidelines laid down  in
Chapter II of the General Rules  of  Guide  to  Medical  Officers  (Military
Pensions), 2002 ? “Entitlement:  General  Principles”,  relevant  extract  in
this behalf reads as under:-
“27. Para 7 talks of evidentiary value attached to the record of a  member’s
condition at the commencement of service e.g. pre-enrolment  history  of  an
injury, or disease like epilepsy, mental disorder, etc. Further,  guidelines
have been laid down at Paras 8 and 9, as quoted below:
“7. Evidentiary value is attached to the record of a member’s  condition  at
the commencement of service, and such record has, therefore, to be  accepted
unless any different conclusion has been reached due to  the  inaccuracy  of
the record in a particular case or otherwise. Accordingly,  if  the  disease
leading to member’s invalidation out of service or death while  in  service,
was not noted in a medical  report  at  the  commencement  of  service,  the
inference would be that the disease arose  during  the  period  of  member’s
Military Service. It  may  be  that  the  inaccuracy  or  incompleteness  of
service record on entry in service  was  due  to  a  non-disclosure  of  the
essential facts by the member e.g. pre-enrolment history  of  an  injury  or
disease like epilepsy, mental disorder, etc. It may also be  that  owing  to
latency or obscurity of the symptoms,  a  disability  escaped  detection  on
enrolment. Such lack of recognition may affect  the  medical  categorisation
of the member on enrolment and/or cause him to  perform  duties  harmful  to
his condition. Again, there may  occasionally  be  direct  evidence  of  the
contraction of a disability, otherwise than by service. In all  such  cases,
though the disease cannot be considered to have been caused by service,  the
question  of  aggravation  by  subsequent  service  conditions   will   need
examination.

The following are some of the diseases which ordinarily escape detection  on
enrolment:
(a) Certain congenital abnormalities which are latent and only  discoverable
on full investigations  e.g.  Congenital  Defect  of  Spine,  Spina  bifida,
Sacralisation,
(b) Certain familial and hereditary diseases  e.g.  Haemophilia,  Congential
Syphilis, Haemoglobinopathy.
(c)  Certain  diseases  of  the  heart  and  blood  vessels  e.g.   Coronary
Atherosclerosis, Rheumatic Fever.
(d)  Diseases  which  may  be  undetectable  by  physical   examination   on
enrolment, unless adequate history is given at the time by the  member  e.g.
Gastric and Duodenal Ulcers, Epilepsy, Mental Disorders, HIV Infections.
(e) Relapsing forms of mental disorders which have intervals of normality.
(f) Diseases which have periodic attacks e.g.  Bronchial  Asthma,  Epilepsy,
Csom, etc.

8. The question whether the invalidation or death of a member  has  resulted
from service conditions, has to be judged in the light of the record of  the
member’s condition on enrolment as noted in service  documents  and  of  all
other available evidence both direct and indirect.

In addition to any documentary evidence relative to the  member’s  condition
to entering the service and during service, the  member  must  be  carefully
and closely questioned on the circumstances which led to the advent  of  his
disease, the duration, the family history, his pre-service history, etc.  so
that all evidence in support or against the claim is elucidated.  Presidents
of Medical Boards should make this their personal responsibility and  ensure
that opinions on attributability, aggravation or otherwise are supported  by
cogent reasons; the approving authority should also be satisfied  that  this
question has been dealt with in such a way as to leave no reasonable doubt.

9. On the question whether any persisting deterioration has occurred, it  is
to be remembered that invalidation from service does not  necessarily  imply
that the member’s health has deteriorated  during  service.  The  disability
may have been discovered soon after joining and  the  member  discharged  in
his own interest in order to prevent deterioration.  In  such  cases,  there
may even have  been  a  temporary  worsening  during  service,  but  if  the
treatment given before discharge was on grounds of expediency to  prevent  a
recurrence, no lasting damage was inflicted by service and  there  would  be
no ground for admitting entitlement. Again a member may have been  invalided
from service because he is found so weak mentally that it is  impossible  to
make him an efficient soldier. This would not mean that  his  condition  has
worsened during service, but only that it is  worse  than  was  realised  on
enrolment in the army. To sum up, in each  case  the  question  whether  any
persisting  deterioration  on  the  available  evidence  which   will   vary
according to the type of the disability, the consensus  of  medical  opinion
relating to the particular condition and the clinical history.”


22.   In the present case, it is  undisputed  that  the  appellant  was  not
suffering from any disease/disability at the time of entering into  Military
Service.  It was on the respondent to show that the appellant was  suffering
from schizophrenia at the time of entering into  service  by  producing  any
document viz. medical prescription etc.  In the absence of any note  in  the
service record in this regard at the time of joining the  Military  Service,
the Medical Board should have called for  the  service  records  and  looked
into the same; but nothing is on record to suggest that any such record  was
called for by the Medical  Board  to  arrive  at  the  conclusion  that  the
disability was not due  to  Military  Service.   The  Medical  Board  simply
stated that the disability is neither  attributable  to  nor  aggravated  by
Military Service.  The relevant portion reads as under:
“1.   Though the disablement has been mentioned in percentage in para  6  of
Part V, this does not mean eligibility  for  disability  pension  since  the
Disability/Disabilities is/are neither attributable  to  nor  aggravated  by
service”

2.    Opinion of assessment by the Board is recommendatory in nature and  is
subject to acceptance by Pension Sanctioning Authority.”


In the absence of any evidence on record to  show  that  the  appellant  was
suffering from any such disease like schizophrenia at the time  of  entering
into the Military Service, it will be presumed that the appellant was  in  a
sound mental condition at the time of entering  into  the  Military  Service
and the deterioration of health has taken place due to Military Service.



23.   Based on the above discussion, we  hold  that  the  Tribunal  did  not
examine the case at hand in the  light  of  the  Army  Pension  Regulations,
1961, the  Entitlement  Rules  for  Casualty  Pensionary  Awards,  1982  and
General Rules of Guide to Medical Officers  (Military  Pensions)  2002  and,
therefore,  the  impugned  order  cannot  be   sustained.     Applying   the
principles of Dharamvir Singh’s case and Rajbir Singh’s case, it has  to  be
presumed that the disability of the appellant bore a casual connection  with
the service conditions.  The appellant was diagnosed to  be  suffering  from
medical disability at 60% for life on 09.09.2009 and he was discharged  from
service on 7.10.2009.  After invalidation from the  service,  the  appellant
passed away on 01.06.2015. By order dated 13.02.2017  in  I.A.  No.  3/2016,
the legal heirs have been ordered to be  substituted.   Hence  wife  of  the
appellant and other legal heirs shall be entitled to disability  pension  as
per the Rules.



24.   In the result, the impugned order is  set  aside  and  the  appeal  is
allowed.  The respondents are directed to pay the disability pension to  the
wife and other substituted legal heirs of Laxmanram Poonia as per the  Rules
and the same shall be complied within eight weeks from today.  No costs.


                                                   …….…………...………J.
                                                   [DIPAK MISRA]


                                                               …………….……………J.
                                                   [R. BANUMATHI]
      New Delhi;
      February 22, 2017