PAY PROTECTION CLAIMING UNDER INAPPLICABLE GOS = So far getting pay protection is concerned, the said issue arises as soon as an employee joins his new post, where he gets his new pay scale and if he is entitled to any pay protection that is the Page 12 of 14 stage and date when it is granted by whatever notifications, memorandums which are available and applicable at that stage laying down such rules regarding pay protection. At that stage what was operating in the field was the notification issued on 07.08.1989 which was not applicable to the appellant. The appellant also clearly understood the position and therefore based his entire claim and right on the subsequent notification dated 28.02.1992, although appointed to the post of Central Government on 23.02.1990.

                                                                  REPORTABLE

                    IN THE SUPREME COURT OF INDIA

                      CIVIL APPELLATE JURISDICTION




                     CIVIL APPEAL NO.   5481 OF 2011

                  [Arising out of SLP (C) No. 8403 of 2009]





Jagdish Parwani                                                .... Appellant





                                       Versus





Union of India & Ors.                                        .... Respondents





                                        WITH


                      CIVIL APPEAL NO.  5482 OF 2011

                  [Arising out of SLP (C) No. 8404 of 2009]





                                         JUDGMENT




Dr. MUKUNDAKAM SHARMA, J.




1. Leave granted.




2.    The  appeal   is   directed  against   the   judgment   and   order  dated


      11.09.2009  passed  by   the   High   Court   of   Madhya   Pradesh



      Bench at Gwalior in Review Petition No. 185 of 2009. The said



      review   petition   was   filed   by   the   appellant   herein   against   the





                                    Page 1 of 14


      order dated 16.04.2009 passed by the High Court of Madhya



      Pradesh, Gwalior Bench, in Writ Petition (s) No. 882 of 2003.



      Appellant has also preferred a separate appeal [arising out of



      SLP(C) No. 8404 of 2009] against the said decision of the High



      Court of Madhya Pradesh in the Writ Petition No. 882 of 2003.



      By  this order we propose to dispose of both the appeals  filed



      by the appellant.




3.    The facts leading to filing of the aforesaid appeals are that the


      appellant   being   a   graduate   engineer   appeared   for   Indian



      Engineering Services examination which was held pursuant to



      an   advertisement   issued   by   the   Union   Public   Service



      Commission   in   the   year   1987   for   filling   up   the   post   of



      Assistant Executive Engineer [Buildings and Roads] in Military



      Engineering   Service,   Ministry   of   Defence.   The   appellant   was



      working   as   an   Assistant   Engineer   in   Uttar   Pradesh   State



      Electricity   Board   [for   short   "UPSEB"],   w.e.f.,   1st  January,



      1988.   He   having   qualified   in   the   aforesaid   competitive



      examination,   the   appellant   was   offered   an   appointment   as



      Assistant   Executive   Engineer   [Buildings   and   Roads]   in   the



      Military Engineering Services by an appointment letter issued



      by   the   Ministry   of   Defence   dated   06.09.1989.   Consequently,




                                  Page 2 of 14


  he resigned from the UPSEB and as per his last pay certificate



  from  UPSEB,   he   was  drawing  a  basic   pay   of  Rs.  2750/-.  His



  resignation was accepted and he was released from the service



  of UPSEB on 19.02.1990.




4. Pursuant to the aforesaid letter of appointment issued by the



  Ministry   of   Defence   the   appellant   joined   the   Military



  Engineering   Service   Department   on   23.02.1990   in   the   pay



  scale   of   Rs.   2200-4000.   In   the   appointment   letter   issued   on



  06.09.1989   the   appellant   was   also   informed   that   his   pay



  would be fixed at the minimum of the pay scale, viz., Rs. 2200.



  The   aforesaid   appointment   of   the   appellant   was   against   a



  temporary   post   but   the   same   was   likely   to   continue



  indefinitely. The appellant was also placed on probation for a



  period   of   two   years   from   the   date   of   his   appointment   with   a



  clear stipulation that his appointment could be terminated at



  any   time   on   one   month's   notice   given   on   either   side   without



  assigning   any   reason.   The   appellant   continued   to   receive  the



  aforesaid   pay   as   fixed   by   the   respondents   till   the   month   of



  September, 1991, i.e., for a period of more than one and a half



  years   and   thereafter   he   submitted   three   representations   on



  11.09.1991, 12.02.1992 and 14.12.1992 respectively claiming




                                 Page 3 of 14


  pay   protection   on   the   basis   of   a   notification   issued   by   the



  Ministry   of   Personnel,   Public   Grievances   and   Pensions



  [Department   of   Personnel   &   Training]   dated   07.08.1989.   In



  the   said   representations   the   appellant   claimed   that   he   was



  entitled   to   receive   a   salary   of   Rs.   3000/-   per   month,   w.e.f.,



  23.2.1990 and not Rs. 2200/-.




5. While   the   aforesaid   representations   of   the   appellant   were



  being   considered   by   the   respondents,   another   notification



  came   to   be   issued   on   28.02.1992   by   the   Department   of



  Personnel & Training extending grant of pay protection to the



  employees   of   State   Government   Undertakings   joining   service



  in Central Government on and after 01.02.1990.




6. By   a   Communication   dated   14.02.1995   the   appellant   was



  informed   by   the   respondents   that   he   is   not   entitled   to   such



  pay   protection   as   claimed   by   him   in   the   representations



  submitted by him.




7. Being   aggrieved   by   the   aforesaid   communication   dated



  14.02.1995           communicating            the         rejection         of         the



  representations   of   the   appellant   for   pay   protection,   the



  appellant   filed   an   Original   Application   before   the   Central





                                 Page 4 of 14


   Administrative Tribunal [Jabalpur Bench], Jabalpur [for short



   "Tribunal"]   claiming   and   seeking   an   order   for   giving   him   the



   pay protection which was last paid to him by the UPSEB. The



   Tribunal   issued   an   order   on   01.10.2002   directing   the



   respondents   to   fix   pay   of   the   appellant   by   giving   him   pay



   protection within six months and also to pay him the arrears



   of pay and allowances.




8. Aggrieved  by   the   said   order   of   the   Tribunal   the   respondents-



   Union   of   India   filed   a   Writ   Petition   which   was   registered   as



   WP(S) No. 882 of 2003 before the Madhya Pradesh High Court,



   Gwalior  Bench.  The  High   Court  after   considering  the  facts   of



   the case passed judgment and order dated 16.04.2009 holding



   that   the   appellant   is   not   entitled   to   pay   protection   and,



   therefore,   his   claim   was   rejected.   It   was   further   held   by   the



   High   Court   that   the   Tribunal   committed   grave   error   in



   granting   pay   protection   to   the   appellant.   The   appellant



   aggrieved by the aforesaid order of the High Court, preferred a



   Review Petition before the Madhya Pradesh High Court which



   was dismissed by order dated 11.09.2009 holding that there is



   no   mistake   apparent   on   the   face   of   the   records   in   the   order



   impugned   in   the   review   petition.   The   aforesaid   orders   are




                                  Page 5 of 14


   challenged   in   the   present   appeals   on   which   we   heard   the



   learned counsel appearing for the parties and also perused the



   records.




9. The   facts,   which   are   stated   hereinbefore,   leading   to   filing   of



   the present appeals are not disputed. The appellant joined the



   UP   State   Electricity   Board   on   01.01.1988   and   while   working



   with the Board he resigned from the service and at that time



   he   was   drawing   the   basic   pay   of   Rs.   2750/-   per   month.



   Thereafter   his   resignation   was   accepted   and   he   was   released



   from   the   service   of  the   UPSEB   on  19.02.1990.   The   appellant



   was given the appointment to the post of Assistant Executive



   Engineer   [Buildings   and   Roads]   in   Military   Engineering



   Service   [for   short   "MES"],   Ministry   of   Defence   and   he   joined



   the   said   post   on  23.02.1990   and   at   the   time   of   appointment



   his terms and conditions of appointment  were  clearly set out



   in the order of appointment whereby his pay was fixed in the



   pay sale of Rs. 2200-4000 with a stipulation that he would be



   paid basic salary of Rs. 2200 plus dearness allowance.




10.Reliance   was   placed   by   the   appellant   on  the   contents   of   the



   Memorandum   dated   06.09.1989   which   was   in   the   nature   of





                                  Page 6 of 14


   guidelines issued by the Ministry of Defence fixing the pay. A



   copy   of   the   said   memorandum   is   annexed   to   the



   memorandum of appeal as Annexure-P1.




11.Paragraph   1   of   the   said   guidelines   provided   that   as   per   the



   extant   rules/orders,   on   fixation   of   pay,   pay   protection   is



   granted   to   candidates   who   were   appointed   by   the   method   of



   recruitment   by   selection   through   the   Union   Public   Service



   Commission   if  such candidates are  in Government  service.  It



   was   also   stipulated   in   the   said   paragraph   1   of   the



   memorandum   that   no   such   pay   protection   would   be   granted



   to   candidates   working   in   public   sector   undertakings,



   universities,   semi-Government   institutions   or   autonomous



   bodies, when they are so appointed in Government.




12.Paragraph   2   thereof   on   which   reliance   was   placed   by   the



   counsel appearing for the appellant provided that the question



   as   to   how   pay   protection   can   be   given   in   the   case   of



   candidates recruited from the public sector undertakings, etc.,



   has   been   engaging   the   attention   of   the   Government   for



   sometime and that after careful consideration of the same the



   President was pleased to decide that in respect of candidates





                                  Page 7 of 14


   working   in   public   sector   undertakings,   universities,   semi-



   Government   institutions,   autonomous   bodies,   who   were



   appointed   as   direct   recruits   on   selection   through   a   properly



   constituted agency including departmental authorities making



   recruitment directly their initial pay could be fixed at a stage



   in the scale of pay attached to the post so that the pay and DA



   already   being   drawn   by   them   in   their   parent   organisation.   It



   was   also   stipulated   therein   that   in   the   event  of   such   a   stage



   not   being   available   in   the   post   to   which   they   have   been



   recruited, their pay may be fixed at a stage just below in the



   scale   of  the   post  to  which   they   have   been recruited,   so  as  to



   ensure a minimum loss to the candidates.




13.It   is   evident   from   the   aforesaid   stipulation   in   the   relevant



   clause that such pay scale received is protected in the case of



   only   Central   Government   Public   Sector   Undertakings,   etc.,



   inasmuch as the decision to grant such benefit was restricted



   specifically   to   Central   Government   employees   and   also



   employees   of   central   government   public   sector   undertakings.



   This   position   got   fortified   and   clearly   explained   by   the



   issuance   of   the   subsequent   notification   dated   28.2.1992,   to



   which reference is made immediately hereafter.




                                   Page 8 of 14


14.Reliance   was   placed   by   the   counsel   appearing   for   the



   appellant on the subsequent OM issued by the Department of



   Personnel and Training issued on 28.02.1992. The contents of



   the   said   notification/memorandum   is   extracted   hereinbelow



   for easy reference and for better understanding: -




      "DoPT OM NO.12/1/88-Estt (Pay-I) dated 28.2.1992.


         "PAY PROTECTION ALSO TO CANDIDATES FROM

      STATE PSUs RECRUITED BY PROPER SELECTION TO

                       CENTRAL GOVERNMENT"


      The   Undersigned   is   directed   to   say   that   question   of

      inclusion   of   employees   of   State   Government

      undertakings  within  the  purview of this  Department's

      OM   No.   12/1/88-Estt   (Pay-I),   dated   7.8.1989   has

      been   engaging   the   attention   of   the   Government   for

      some   time.   The  matter   has  been   carefully  considered

      and the president is pleased to decide that provisions

      of   this   Department's   OM   of   even   number   dated

      7.8.1989, may  be extended to the  employees of State

      Government Undertakings selected for posts in Central

      Government   on   direct   recruitment   basis   as   in   case   of

      Central Public Undertakings.


      These orders take  effect from the first of the month in

      which this OM is issued."





A bare perusal of the Memorandum would make it crystal clear



that   the   employees   of   the   State   Government   Undertakings



selected   for   posts   in   Central   Government   on   direct   recruitment



basis on and after 01.02.1992 were also extended the benefit of





                                  Page 9 of 14


pay protection,  as was  provided in the case of the  employees  of



Central   Government   Public   Undertakings   as   per   notification



dated 07.08.1989.




15.In the aforesaid notification, it was clearly stipulated that the



  said benefit of pay protection is effective only from the first of



  the   month   in   which   the   OM   is   issued,   i.e.,   from   01.02.1992,



  which   means   that   the   said   OM   was   given   prospective   effect



  only.   Therefore,   the   said   OM   could   even   be   said   to   be   a



  clarification   on  the   issue   which   is   sought   to   be   raised   in   the



  present case. It was clearly pointed out in the said notification



  that employees like the appellant would be entitled to get such



  pay   protection,   as   employees   of   the   State   Government



  Undertakings   on   their   appointment   in   Central   Government



  service   only   from   the   effective   date   of   01.02.1992.   If   the



  appellant   would   have   been   appointed   for   a   post   in   Central



  Government   on   direct   recruitment   basis   after   01.02.1992



  such benefit of pay protection could have been made available



  to him. But since the appellant was selected and appointed to



  a post in Central Government on 23.02.1990 after working as



  an   employee   of   the   State   Government   Undertaking,   viz.,



  UPSEB, the notification dated  07.08.1989 was not applicable




                                 Page 10 of 14


   to   him   and,   therefore,   he   could   not   have   legally   claimed   for



   any pay protection.




16.Being   fully   aware   of   the   aforesaid   position   the   appellant



   accepted   the   appointment   without   any   demur   or   protest   on



   the   issue   of   pay   being   given   to   him   under   the   appointment



   order   issued   to   him   by   the   Military   Engineering   Service,



   Ministry of Defence, fixing his pay scale at the minimum of the



   pay scale of Rs. 2200. He accepted the said pay scale without



   raising   any   grievance   and   continued   to   receive   the   same   till



   11.09.1991,   when   for   the   first   time   he   submitted   his   first



   representation   for   pay   protection   as   per   notification   dated



   07.08.1989.




17.The position with regard to the entitlement or otherwise of the



   appellant for getting pay protection was made clear by issuing



   the   notification   dated   28.02.1992   clearly   stipulating   therein



   that   an   employee   of   the   State   Government   Undertaking



   selected for post in Central Government on direct recruitment



   basis would be entitled to pay protection upon appointment in



   Central   Government   only   effective   from   01.02.1992.   The



   appellant having joined the MES, Ministry of Defence prior to





                                 Page 11 of 14


  the   aforesaid   date   was   not   entitled   to   the   benefit   of   the



  aforesaid notification which was issued much after his joining



  date and, therefore, the benefit of the aforesaid notification is



  not available to the appellant.




18. Counsel appearing for the appellant however sought to submit



  that to deny the benefit of the notification dated 28.02.1992 to



  the appellant was discriminatory  in nature and in support of



  the said  contention  the  counsel relied  on the  decision  of this



  Court   in   the   case   of  T.S.   Thiruvengadam   v.   Secretary   to


  Government   of   India,   Ministry   of   Finance,   Deptt.   of


  Expenditure,   New   Delhi  reported   in  (1993)   2   SCC   174.   In


  our considered opinion the ratio of the aforesaid decision was



  rendered   in   respect  of   case   of  pension   which   is   a   continuing



  cause   of   action.   Facts   of   the   said   case   are   clearly



  distinguishable   from   the   facts   of   the   present   case   and,



  therefore, the ratio of the said decision is not applicable to the



  case   in   hand.   There   is   an   inherent   clear   distinction   between



  the two concepts of pay protection and pension. So far getting



  pay  protection  is  concerned,  the said  issue  arises  as soon as



  an   employee   joins   his   new   post,   where   he   gets   his   new   pay



  scale   and   if   he   is   entitled   to   any   pay   protection   that   is   the




                                  Page 12 of 14


   stage   and   date   when   it   is   granted   by   whatever   notifications,



   memorandums   which   are   available   and   applicable   at   that



   stage laying down such rules regarding pay protection. At that



   stage   what   was   operating   in   the   field   was   the   notification



   issued   on   07.08.1989   which   was   not   applicable   to   the



   appellant.   The   appellant   also   clearly   understood   the   position



   and   therefore   based   his   entire   claim   and   right   on   the



   subsequent notification dated 28.02.1992, although appointed



   to the post of Central Government on 23.02.1990.




19.In the present case it cannot be said that a notification issued



   after   two   years   of   the   appointment   of   the   appellant   which   is



   also   specifically   stated   to   have   been   issued   with   prospective



   effect is applicable in his case.




20.Consequently,   we   hold   that   the   High   Court   was   justified   in



   setting   aside   the   order   of   the   Tribunal   as   the   Tribunal   has



   misread   and   misinterpreted   the   facts   as   also   the   legal



   principles in law.




21.We,   therefore,   find   no   merit   in   these   appeals,   which   are



   dismissed, but, leaving the parties to bear their own costs.





                                 Page 13 of 14

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

                                                      [Dr. Mukundakam Sharma]





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

                                                 [Anil R. Dave]

New Delhi,

July 15, 2011.





                                 Page 14 of 14

Since the Evacuee Property Act, 1950 has been repealed, we see no justification in the order dated 30.04.2009 passed by the High Court remanding back the matter to the Settlement Commissioner to consider the claim of the respondents once again inasmuch as the issue as to whether or not respondents are authorised or unauthorised occupants of the land in dispute and as to whether or not the respondents are entitled to alternative plots or rehabilitation are matters which can be adjudicated upon separately in accordance with law but not in the manner as suggested by the High Court. Even if respondents are entitled to rehabilitation under any law the same has to be established by due process of law. But they cannot claim any land within the acquired area/55.0 Acres of Development Scheme but in case an order is passed in their favour, they would be rehabilitated in alternative plot(s)

                                                                    REPORTABLE


                    IN THE SUPREME COURT OF INDIA

                      CIVIL APPELLATE JURISDICTION




                      CIVIL APPEAL NO.  5461 OF 2011

                 [Arising out of SLP (C) No. 14396 of 2010]




Jalandhar Improvement Trust                           .... Appellant





                                        Versus





Vinod Kumar & Ors.                                                .... Respondents





                                         JUDGMENT




Dr. MUKUNDAKAM SHARMA, J.



1. For the reasons stated  in the application for condonation of



      delay,   we   are   of   the   view   that   there   is   sufficient   cause   for



      such condonation.  Accordingly, delay condoned.



2. Leave granted.




3.    This appeal is directed against the judgment and order dated


      30.04.2009  passed  by  the  High  Court  of Punjab  & Haryana



      at   Chandigarh   in   Civil   Writ   Petition   No.   10203   of   2007,



      whereby   the   High   Court   disposed   of   the   writ   petition   by


      remanding back the matter to the Settlement Commissioner



      for   considering   the   claims   of   the   respondents   while



      maintaining status quo in the matter.




4. Brief facts leading to the filing of the present appeal are that



      the land in dispute belongs to the State.  It is averred by the



      respondents   that  they   have  occupied   the   land   in   dispute   in



      the   year   1947,   measuring   2-1/2   kanals   in   Khasra   No.



      16693/6729 in the 55.0 Acres Development Scheme as they



      were   displaced   persons   from   Pakistan.     On   the   other   hand



      the appellant - Improvement Trust Jalandhar has stated that



      respondents   encroached   the  said   land  which  belongs   to  the



      Government.




5.    An Award was passed on 05.01.1977 by the Land Acquisition


      Collector, Jalandhar Improvement Trust in Land Acquisition



      No.   1  of   1975-76   and   in   the   said   Award,   it   was   stated   that



      the   State   Government   (Local   Government)   vide   their



      notification   No.   8080-3CI-75/21963   dated   the   10th  July,



      1975,   issued   under   Section   42   of   the   Punjab   Town



      Improvement   Act,   1922,   accorded   sanction   to   the



      Development   Scheme   for   an   area   measuring   approximately





                                      Page 2 of 13


      55.0   acres   on   Police   Lines   Road,   behind   Commissioner's



      Office,   Jalandhar   framed   by   the   Jalandhar   Improvement



      Trust.   The   aforesaid   Trust   vide   its   Memorandum   No.



      JIT/3058   dated   the   26th  July,   1975,   applied   for   the



      acquisition   of   the   non-evacuee   and   composite   property



      comprised   in   the   Scheme   under   the   Land   Acquisition   Act,



      1894.   It   was   also   stated   in   the   aforesaid   award   that



      according to the acquisition file prepared by the revenue staff



      of   the   Trust   total   area   of   the   scheme   works   out   to   be   598



      Kanal   2   Marlas   and   out   of   this   area   measuring   69   Kanals



      and   2  Marlas   belongs   to   the   Improvement   Trust,   Jalandhar



      itself.   The   aforesaid   Award   included   the   area   in   dispute



      which is the subject matter of the present case.




6.    The respondents, however, contended inter alia that they are


      in occupation of the said land by way of evacuee property as



      they   were  being  displaced   persons  from  Pakistan.    The said



      land   was   transferred   to   the   Improvement   Trust,   Jalandhar



      for   the   execution   of   55.0   Acres   Development   Scheme



      developed by the Punjab Government.   The Land Acquisition



      Collector   vide   its   Award   dated   5th  January,   1977   held   that



      the   land   occupied   by   the   respondents   had   already   been




                                      Page 3 of 13


   received   by   the   Improvement   Trust,   Jalandhar   in   the



   package deal.




7. Respondents   filed   an   application   for   grant   of   proprietary



   rights  in respect of land  measuring  2-1/2 kanals in Khasra



   No.   16693/6729   in   the   55.0   Acres   Development   Scheme.



   However, the application filed by the respondents for grant of



   proprietary   rights   was   dismissed   by   the   Naib   Tehsildar   (S),



   M.O.   Jalandhar   on   03.08.1981   on   the   ground   that   the



   aforesaid   area   had   already   been   acquired   by   the



   Improvement Trust Jalandhar and that it was not an evacuee



   property.




8. The   respondents   then   filed   appeals   before   the   Settlement



   Commissioner,            Punjab,         Rehabilitation         Department,



   Jalandhar   against   the   order   dated   03.08.1981   which   were



   accepted   by   the   Settlement   Commissioner   vide   its   order



   dated   5.10.1981   and   remanded   the   matter   to   the   Tehsildar



   (S)-cum-M.O., Jalandhar for fresh decision, after hearing the



   respondents.




9. In   the   meantime   the   predecessor-in-interest   of   the



   respondents   Nos.   1   &   2   filed   a   civil   suit   seeking   for





                                 Page 4 of 13


  injunction          restraining          the         appellant         herein         from



  dispossessing   the   predecessor-in-interest   from   the   land



  illegally, unlawfully or by force.  The Trial Court, namely, the



  Sub Judge passed an order in the said suit that the plaintiff



  would  not be  dispossessed from  the   suit  property  otherwise



  than in due course of law.   The said order of the Trial Court



  was also upheld by the Additional District Judge, Jalandhar



  vide his judgment dated 18.01.1985.




10.Subsequent   to   the   aforesaid   order,   an   application   under



  Sections   5   and   7   of   the   Punjab   Public   Premises   Land



  [Eviction and Rent Recovery] Act No. 31 of 1973 [hereinafter



  referred   to   as   the   "Eviction   Act"]   was   filed   by   the   appellant



  initiating   a   proceeding   for   eviction   of   the   respondents.     The



  competent authority issued notice to the respondents and at



  the   stage   when   the   said   proceeding   was   at   the   stage   of



  evidence, the file of the case lost, consequent upon which the



  proceeding was stopped.




11.In the meantime the respondents filed a Writ Petition before



  the   Punjab   and   Haryana   High   Court   contending   inter   alia



  that the aforesaid land is an evacuee property and therefore





                                     Page 5 of 13


  the aforesaid initiation of proceedings under Sections  5 and



  7   of   the   Punjab   Public   Premises   Land   [Eviction   and   Rent



  Recovery] Act No. 31 of 1973 is without jurisdiction.




12. The appellant herein filed a counter affidavit in the said writ



  petition.     The  High   Court  by   its   order   dated   12.05.2006



  disposed   of   the   said   writ   petition   by   holding   that   if   the



  Settlement   Commissioner   finds   that   the   claim   of   the



  respondents  is  without any merit and   they  are  not entitled



  to   any   alternative   sites/rehabilitation   then   they   would   also



  have   no   action   to   claim   to   retain   the   sites   which   are   under



  their possession.   Pursuant to the aforesaid directions of the



  High Court the matter was placed before the Sub Divisional



  Magistrate,   Jalandhar   by   the   respondents   herein   for



  allotment of property comprising in Khasra No. 16693/6729



  situated in Bhisti Darwaja, Civil Lines, Jalandhar.




13.The   Sub   Divisional   Magistrate,   Jalandhar   passed   an   order



  dated 27.04.2007 holding that the case could not be decided



  in   view   of   repeal   of   Displaced   Persons   (Compensation   &



  Rehabilitation) Act, 1954 by the Ministry of Law and Justice,



  Legislative Department, New Delhi.





                                  Page 6 of 13


14.Thereupon,   the   respondents   herein   filed   a   separate   writ



   petition  for  quashing   the  order  dated   27.04.2007  passed  by



   the Settlement Commissioner which was registered as 10203



   of 2007.  In the said writ petition the State of Punjab filed its



   counter   affidavit   in   which   it   was   averred   that   the



   respondents   have   already   transferred   their   land   which   was



   being used as residential. With regard to the remaining land



   being   used   for   Dairy,   it   was   stated   that   they   are   not   using



   the   said   land   as   the   Dairy   business   has   been   shifted   to



   Jamsher   Tehsil   Jalondha   in   the   light   of   the   decision   of



   Municipal Corporation of Jalandhar wherein the respondents



   have   been   allotted   four   different   plots   bearing   Nos.   139   to



   142 vide letter dated 12.03.2008.




15. The  High   Court   passed   an  order   dated   30.04.2009   which   is



   the   impugned   order   herein   and   whereby   the  High   Court



   remanded   back   the   matter   to   the   Settlement   Commissioner



   once   again   to   consider   the   claims   of   the   respondents   and



   also   stayed   their   dispossession   till   the   matter   is   decided   by



   the Settlement Commissioner.





                                   Page 7 of 13


16.Being   aggrieved   by   the   said   order   the   present   appeal   was



   filed   on   which   we   heard   the   learned   counsel   appearing   for



   the parties. Counsel appearing for the parties have taken us



   meticulously through the entire records.




17.There can be no dispute with regard to the fact that the land



   in dispute is a part of the Award and the same belongs to the



   Punjab   Town   Improvement/Government   being   a   part   of



   development   scheme.     The   respondents   claimed   to   be   in



   possession   of   the   said   land   as   an   evacuee   property.     If   in



   case the respondents were in possession of the said land as



   an   evacuee   property   and   not   as   encroachers   meaning



   thereby   holding   right   and   title   to   hold   and   possess   such



   land,   they   were   required   to   challenge   the   Award   passed   on



   05.01.1977.   The said Award having not been challenged by



   the  respondents   the  same   has  become   final  and  binding  on



   all concerned.




18.The   civil   suit   filed   by   the   predecessor-in-interest   of   the



   respondents   Nos.   1   &   2   was   disposed   of   by   the   trial   court,



   namely,   the   Sub   Judge   with   a   direction   that   the   plaintiff



   would  not be  dispossessed from  the   suit  property  otherwise





                                   Page 8 of 13


than in due course of law as respondents were in possession



of the land, may be as encroachers.  Consequent thereto, the



appellant has moved the competent authority for initiation of



proceedings   under   the   Punjab   Public   Premises   Land



(Eviction   and   Rent   Recovery)   Act,   1973.     In   the   said



proceedings   all   the   issues   could   be   urged   as   to   whether   or



not   the   respondents   are   owners   and   have   their   rights   over



the disputed land and also as to whether or not appellant is



owner of the land and as to whether or not the respondents



are   authorised   occupants   or  unauthorised   occupants   of   the



land.  It was also averred clearly in the writ petition and also



in   this   appeal   that   the   respondents   have   been   allotted   four



alternative plots in lieu of their occupation of the land which



is part of the disputed land.  The aforesaid fact although has



been   disputed   by   the   respondents   in   their   counter   affidavit



but   no  documentary   evidence   has  been  placed  on  record  to



indicate   that   the   aforesaid   land   was   not   allotted   by   the



Government to the respondents and that they had purchased



the   land   by   paying   full   consideration   thereof   from   the



competent authority.





                               Page 9 of 13


19.Be that as it may, as to whether or not the respondents are



  lawful   owners   of   the   land   in   question   or   they   are   mere



  encroachers and liable to be evicted would be gone into and



  decided   although   in   a   summary   manner   in   the   proceedings



  which were initiated against them.  




20. Since the Evacuee Property Act, 1950 has been  repealed, we



  see no justification in the order dated 30.04.2009 passed by



  the High Court remanding back the matter to the Settlement



  Commissioner to consider the claim of the respondents once



  again   inasmuch   as   the   issue   as   to   whether   or   not



  respondents   are   authorised   or   unauthorised   occupants   of



  the land in dispute and as to whether or not the respondents



  are entitled  to  alternative plots  or rehabilitation are matters



  which   can   be   adjudicated   upon   separately   in   accordance



  with   law   but   not   in   the   manner   as   suggested   by   the   High



  Court.   Even   if   respondents   are   entitled   to   rehabilitation



  under any law the same has to be established by due process



  of  law.  But  they   cannot  claim   any   land  within   the   acquired



  area/55.0 Acres of Development Scheme but in case an order



  is   passed   in   their   favour,   they   would   be   rehabilitated   in



  alternative plot(s).   Therefore, they would have to prove their




                                Page 10 of 13


  case   before   the   competent   authority   and   not   before   the



  Settlement Commissioner.  However, in order to comply with



  the   directions   of  the   Civil   Court   and   also  for   his  eviction   in



  accordance   with   law,   proceeding   has   to   be   initiated   under



  the Public Premises Eviction Act, which stands initiated, and



  therefore,   the   said   proceeding   should   be   continued   till   the



  same would come to a logical end.




21. The   respondents   have   not   challenged   the   award   and



  therefore the aforesaid Award has become final and binding.



  Therefore,   we   set   aside   the   order   passed   by   the  High   Court



  and   hold   that   the   proceedings   initiated   against   the



  respondents   under   Sections   5   and   7   of   the   Eviction   Act



  would   be   allowed   to   be   continued   and   the   same   shall   be



  brought to a logical end as expeditiously as possible.




22.The land in question is a part of the Development Plan and



  therefore   the   matter   requires   urgent   consideration.     In   any



  case   the   land   in   question   being   a   part   of   the   Development



  Plan   cannot   be   left   to   the   occupation   of   the   respondents   if



  they are held to be encroachers by passing an interim order.



  Therefore,   in   our   considered   opinion   the   proceedings   to





                                  Page 11 of 13


   adjudicate upon and decide as to whether or not respondents



   are   authorised   or   unauthorised   occupants   of   the   land   in



   dispute   should   be   completed   and   brought   to   an   end.   As   to



   whether  or  not  the   respondents   are  encroachers   would  also



   be   decided   in   the   said   proceeding.       All   other   claims



   regarding entitlement of alternative plot or rehabilitation and



   whether or not such land is already allotted as rehabilitation



   package   could   be   raised   by   the   respondents   only   after   the



   proceeding   initiated   under   the   Eviction   Act   is   finalised   and



   also depending on its outcome.




23.Six   months   time   is   granted   to   the   competent   authority   to



   complete proceedings initiated under Sections 5 and 7 of the



   Eviction   Act,   so   that,   the   matter   is   disposed   of     as



   expeditiously   as   possible   as   the   same   is   pending   for   a   very



   long time.




24. Therefore, the present appeal is allowed and the order passed



   by the High Court accordingly stands quashed.  We leave the



   parties to bear their own costs.





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





                                    Page 12 of 13


                                                   [Dr. Mukundakam Sharma]





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

                                              [Anil R. Dave]



New Delhi,

July 15, 2011.





                                 Page 13 of 13

consumer case - The appellant is a temple situated in the State of Tamil Nadu. It is one of the ancient temples of Lord Kartikeya and is considered prime among the six holiest shrines of the Lord. Every year, lakhs of devotees throng the temple which is situated on a hill to receive the blessings of the Lord. The temple is being administered by the Hindu Religious and Charitable Endowments Department of the Government of Tamil Nadu. The devotees make offering in cash and kind to the deity. The cash offerings are collected and invested in various forms. The income derived from such investments is utilized for charitable purposes such as prasadams, hospitals, schools and orphanages. (b) According to the appellant, it had deposited a huge sum of money totaling to Rs.1,40,64,300/- with the Post Master, Post Office, Palani from 05.05.1995 to 16.08.1995 for a period of five years under the `Post Office Time

                                                         REPORTABLE


              IN THE SUPREME COURT OF INDIA


               CIVIL APPELLATE JURISDICTION


               CIVIL APPEAL NO. 4995  OF 2006




Arulmighu Dhandayudhapaniswamy

Thirukoil, Palani, Tamil Nadu, thr.

 Its Joint Commissioner                                  .... Appellant (s)



           Versus



The Director General of Post Offices,

Department of Posts & Ors.                          .... Respondent(s)





                         J U D G M E N T


P. Sathasivam, J.


1)    This appeal is filed by the appellant-Temple through



its   Joint   Commissioner   against   the   final   order   dated



31.05.2006   passed   by   the   National   Consumer   Disputes



Redressal   Commission   (in   short   "the   National



Commission")   at   New   Delhi   in   First   Appeal   No.   411   of



1997 whereby the  Commission dismissed their appeal.





                                                                          1


2)     Brief facts:


(a)    The   appellant   is   a   temple   situated   in   the   State   of



Tamil   Nadu.     It   is   one   of   the   ancient   temples   of   Lord



Kartikeya   and   is   considered   prime   among   the   six   holiest



shrines of the Lord.   Every year, lakhs of devotees throng



the   temple   which   is   situated   on   a   hill   to   receive   the



blessings of the Lord.  The temple is being administered by



the   Hindu   Religious   and   Charitable   Endowments



Department   of   the   Government   of   Tamil   Nadu.     The



devotees make offering in cash and kind to the deity.  The



cash offerings are collected and invested in various forms.



The   income   derived   from   such   investments   is   utilized   for



charitable   purposes   such   as   prasadams,   hospitals,



schools and orphanages.



(b)    According   to   the   appellant,   it   had   deposited   a   huge



sum   of   money   totaling   to   Rs.1,40,64,300/-   with   the   Post



Master, Post Office, Palani from 05.05.1995 to 16.08.1995



for   a   period   of   five   years   under   the   `Post   Office   Time





                                                                         2


Deposit Scheme' (in short `the Scheme').   On 01.12.1995,



the   Temple   received   a   letter   from   the   Post   Master,   Post



Office,   Palani-3rd  Respondent   herein   informing   that   the



Scheme   had   been   discontinued   for   investment   by



institutions   from   01.04.1995,   and   therefore,   all   such



accounts should be closed without interest.   The amount



deposited by the Temple was refunded only on 03.01.1996



without interest.



(c)    Aggrieved   by   the   decision   of   the   Postal   Authorities,



the   appellant,   on   10.01.1996,   sent   a   legal   notice   to   the



respondents   calling   upon   them   to   pay   a   sum   of



Rs.9,13,951/-   within   a   period   of   seven   days,   being   the



interest @ 12% p.a. on the sum of Rs.1,40,64,300/- from



the   dates   of   deposit   till   the   dates   of   withdrawal.     As



nothing   was   forthcoming   from   the   respondents,   the



appellant   preferred   a   complaint   before   the   State



Consumer   Disputes   Redressal   Commission   (in   short   "the



State   Commission").     Vide   order   dated   08.08.1997,   the





                                                                        3


State Commission was divided over its opinion in the ratio



of 2:1.   The majority opinion comprising of the Chairman



and   Member   II   dismissed   the   complaint   filed   by   the



appellant.  



(d)    Aggrieved   by   the   dismissal   of   the   complaint   by   the



State   Commission,   the   appellant   preferred   an   appeal   to



the   National   Commission   which   was   also   dismissed   on



31.05.2006.  Challenging the said order, the appellant has



preferred   this   appeal   by   way   of   special   leave   before   this



Court.



3)     Heard   Mr.   S.   Aravindh,   learned   counsel   for   the



appellant   and   Mr.   A.S.   Chandhiok,   learned   Additional



Solicitor General for the respondents.



4)     Points   for   consideration   in   this   appeal   are   whether



there was any deficiency in service on the part of the Post



Master,   Post   Office,   Palani-3rd  Respondent   herein   and



whether the appellant-complainant is entitled to any relief



by way of interest?





                                                                         4


Discussion


5)    We have already adverted to the factual details.   It is



the case of the respondents that the Central Government



had issued a Notification being No. G & SR 118(E) 119(E)



120(E)   as   per   which   no   Time   Deposit   shall   be   made   or



accepted   on   behalf   of   any   institution   with   effect   from



01.04.1995. It is not in dispute that the appellant-Temple



had   deposited   a   huge   sum   of   money   amounting   to



Rs.1,40,64,300/- with the Post Master from 05.05.1995 to



16.08.1995.  The said deposit was for a period of five years



under   the   Scheme.     Though   the   3rd  Respondent   had



accepted the amount under the said Scheme and issued a



receipt   for  the   same,   later   it  was   found  that   the   deposits



made   on   and   from   01.04.1995   were   against   the   said



Notification  which  amounted  to  contravention  of  the  Post



Office   Savings   Bank   General   Rules,   1981   (in   short   `the



Rules').





                                                                         5


6)      In   exercise   of   the   powers   conferred   by   Section   15   of



the   Government   Savings   Banks   Act,   1873,   the   Central



Government   framed   the   above   mentioned   Rules.     The



Rules are applicable to the following accounts in the Post



Office   Savings   Bank,   namely,   a)   Savings   Account   b)



Cumulative   Time   Deposit   Account   c)   Recurring   Deposit



Account   d)   Time   Deposit   Account   and   it   came   into   force



with effect from 01.04.1982.  Among various Rules, we are



concerned with Rules 16 & 17 which read as under:-  



        "16.  Accounts   opened   incorrectly.--(1)   Where   an   account

        is   found   to   have   been   opened   incorrectly   under   a   category

        other   than   the   one   applied   for   by   the   depositor,   it   shall   be

        deemed to be an account of the category applied for if he was

        eligible to open such account on the date of his application

        and   if   he   was   not   so   eligible,   the   account   may,   if   he   so

        desires, be converted into an account of another category ab

        initio, if he was eligible to open an account of such category

        on the date of his application.

        (2)   In cases where the account cannot be so converted, the

        relevant   Head   Savings   Bank   may,   at   any   time,   cause   the

        account to be closed and the deposits made in the accounts

        refunded to the depositor with interest at the rate applicable

        from time to time to a savings account of the type for which

        the depositor is eligible.

        17.  Accounts   opened   in   contravention   of   rules.--Subject

        to   the   provisions   of   rule   16,   where   an   account   is   found   to

        have   been   opened   in   contravention   of   any   relevant   rule   for

        the time being  in force  and applicable to the accounts kept

        in  the   Post  Office   Savings  Bank,   the   relevant   Head   Savings

        Bank may, at any time, cause the account to be closed and

        the deposits made in the account refunded to the depositor

        without interest."




                                                                                               6


Since the deposits in the case on hand relate to Post Office



Time   Deposit   Account,   Rule   17   of   the   Rules   is   squarely



applicable.   The  reading  of  Rule  17  makes  it  clear  that  if



any   Account   is   found   to   have   been   opened   in



contravention   of   any   Rule,   the   relevant   Head   Savings



Bank   may,   at   any   time,   cause   the   account   to   be   closed



and   the   deposits   made   be   refunded   to   the   depositor



without interest.  Rule 16 speaks that where an account is



opened   incorrectly   under   a   category   other   than   the   one



applied   for   by   the   depositor,   it   shall   be   deemed   to   be   an



account of the category applied for if a person is eligible to



open such account and if he is not so eligible, the account



may be converted into an account of another category  ab



initio,  if   the   person   so   desires   and   if   he   is   found   to   be



eligible.   For any reason, where the account cannot be so



converted,   the   account   is   to   be   closed   and   the   deposits



made   in   the   accounts   be   refunded   to   the   depositor   with



interest   at   the   rate   applicable   from   time   to   time   to   a





                                                                             7


savings   account   of   the   type   for   which   the   depositor   is



eligible.



7)       Before   considering   Rule   17,   it   is   useful   to   refer   the



communication   dated   01.12.1995   of   the   Post   Master-3rd



Respondent herein which reads as under:



                          "DEPARTMENT OF POSTS, INDIA



                                                          From

                                                                              Post Master

                                                                          Palani 624 601

                                                           To

                                                            The Joint Commissioner/

                                                                       Executive Officer

                                                    A/M. Dhandayuthapani Swamy

                                                                        Thirukoil, Palani



No. DPM/SB/Dlg.                                           Dated at Palani 01.12.1995



Sub:   Investment   by   Institution   in   the   Post   Office   Time   Deposits,   K.V.

Patras, NSC VIII Issue-reg.



Sir,



         I am to inform you that with effect from 01.04.1995 investments by

Institution   in   the   P.O.   T.D.   V.P.+N.S.C.   VIII   issue   is   discontinued.     As

Devasthanam   is   also   an   Institution,   I   request   you   to   close   all   the   TD

accounts immediately without interest and also if any kind of above said

patras and certificates purchased by the Devasthanam after 01.04.1995.



The   following   TD   accounts   have   been   opened   at   Palani   H.O.   after

01.04.1995.  Please close the accounts immediately.



1)   5   year   TD   2010417   dt.   05.05.1995,   (2)   2010418   dt.   20.05.1995,   (3)

2010419   dt.   31.05.1995,   (4)   2010421   dt.   14.06.1995,   (5)   2010422   dt.

21.06.1995, (6) 2010423 dt. 03.07.1995, (7) 2010424 dt. 03.07.1995, (8)

2010425   dt.   11.07.1995   (9)   2010426   dt.   13.07.1995,   (10)   2010428   dt.

29.07.1995, (11) 2010429 dt. 01.08.1995, (12) 2010430 dt. 07.08.1995,

(13) 2010431 dt. 07.08.1985 and (14) 2010435 dt. 16.08.1995.




                                                                                          8


                                                    Yours faithfully



                                                    (Sd/-)............

                                                      Post Master

                                                      Palani 624 601"

 



It is clear from the above communication that with effect



from   01.04.1995   i.e.   even   prior   to   the   deposits   made   by



the   appellant-Temple,   investment   by   institutions   under



the Scheme was not permissible and in fact discontinued



from   that   date.     It   is   not   in   dispute   that   the   appellant-



Temple is also an institution administered and under the



control   of   the   Hindu   Religious   and   Charitable



Endowments   Department   of   the   State.     Vide   the   above



said communication, the Post Master, Palani informed the



appellant   to   close   all   those   accounts   since   the   same   was



not   permissible.     The   communication   dated   01.12.1995



also   shows   that   all   such   accounts   should   be   closed   and



the   amounts   so   deposited   are   to   be   refunded   without



interest.     In   our   case,   the   deposit   accounts   have   been



caused to be closed and the amounts deposited have been





                                                                           9


returned   to   the   depositors   without   interest.     Though   the



appellant   claimed   interest   and   insisted   for   the   same   on



the ground of deficiency in service on the part of the Post



Master,   Palani,   in   view   of   Rule   17,   the   respondents   are



justified   in   declining   to   pay   interest   for   the   deposited



amount since the same was not permissible.     In the light



of Rule 17 of the Rules, as rightly concluded by the State



and the National Commission, it cannot be held that there



was   deficiency   in   service   on   the   part   of   the   respondents,



3rd respondent in particular.



8)     The State Commission while rejecting the claim of the



appellant   relied   on   a   decision   of   this   Court   reported   in


Postmaster   Dargamitta,   H.P.O.,   Nellore                  vs.     Raja


Prameeelamma (Ms.) (1998) 9 SCC 706.  In that case, the


complainant   therein   issued   six   National   Savings



Certificates for Rs. 10,000/- each on 28.04.1987 from the



Post   Office.     According   to   the   Notification   issued   by   the



Government   of   India,   the   rate   of   interest   payable   with





                                                                         10


effect   from   01.04.1987   was   11   per   cent.       But   due   to



inadvertence   on   the   part   of   the   clerical   staff   of   the   Post



Office,   the   old   rate   of   interest   and   the   maturity   value



which   was   printed   on   the   certificates   could   not   be



corrected.     The   question   that   arose   in   that   case   was



whether   the   higher   rate   of   interest   printed   in   the



Certificate   shall   be   paid   or   only   the   rate   of   interest



mentioned   in   the   Notification   is   applicable.     This   Court



held that even though the Certificates contained the terms



of   contract   between   the   Government   of   India   and   the



holders   of   the   National   Savings   Certificate,   the   terms   in



the   contract   were   contrary   to   the   Notification   and



therefore   the   terms   of   contract   being   unlawful   and   void



were not binding on the Government of India and as such



the   Government   refusing   to   pay   interest   at   the   rate



mentioned in the Certificate is not a case of deficiency in



service   either   in   terms   of   law   or   in   terms   of   contract   as



defined   under   Section   2(1)(g)   of   the   Consumer   Protection





                                                                            11


Act, 1986.   The above said decision is squarely applicable



to the case on hand.





9)    It   is   true   that   when   the   appellant   deposited   a   huge



amount   with   the   3rd  Respondent   from   05.05.1995   to



16.08.1995 under the Scheme for a period of five years, it



was   but   proper   on   the   part   of   the   Post   Master   to   have



taken   a   note   of   the   correct   Scheme   applicable   to   the



deposit.   It  was also  possible  for  the  Post  Master  to  have



ascertained   from   the   records,   could   have   applied   the



correct Scheme and if the appellant, being an institution,



was   not   eligible   to   avail   the   Scheme   and   advised   them



properly.  Though Mr. S. Aravindh, learned counsel for the



appellant   requested   this   Court   to   direct   the   3rd



Respondent to pay some reasonable amount for his lapse,



inasmuch   as   such   direction   would   go   contrary   to   the



Rules   and   payment   of   interest   is   prohibited   for   such



Scheme in terms of Rule 17, we are not inclined to accept



the same.  We are conscious of the fact that a substantial




                                                                         12


amount   had   been   kept   with   the   3rd  Respondent   till



03.01.1996   when   the   said   amount   was   refunded   without



interest.   In the light of the letter dated 01.12.1995 and in



view of Rule 17 of the Rules, failure to pay interest cannot



be construed as a case of deficiency in service in terms of



Section   2(1)(g)   of   the   Consumer   Protection   Act,   1986.



Both   the   State   and   the   National   Commission   have



concluded   that   the   3rd  Respondent   was   ignorant   of   any



Notification   and   because   of   this   ignorance   the   appellant



did   not   get   any   interest   for   the   substantial   amount.     We



agree with the factual finding arrived at by the State and



the National Commission and in view of the circumstances



discussed   above,   the   respondents   cannot   be   fastened   for



deficiency   in   service   in   terms   of   law   or   contract   and   the



present appeal is liable to be dismissed.              





                                                                          13


10)    Before parting with this appeal, we intend to make the



following   suggestions   to   the   Post   Offices   dealing   with



various accounts of deposits:



       i)     Whether it is metropolitan or rural area, persons



       dealing with public money or those who are in-charge



       of   accepting   deposits   to   be   conversant   with   all   the



       details   relating   to   types   of   deposits,   period,   rate   of



       interest,   eligibility   criteria   etc.   for   availing   benefits



       under different schemes.



       ii)    It   is   desirable   to   exhibit   all   these   details   in



       vernacular   language   in   a   conspicuous   place   to



       facilitate   the   persons   who   intend   to   invest/deposit



       money.





                                                                          14


       iii)    That   if   the   Central   Govt.   issues   any



       notification/instructions   regarding   change   in   the



       interest   rate   or   any   other   aspect   with   regard   to



       deposits,   the   decision   taken   shall   be   immediately



       passed   on   to   all   the   authorities   concerned   by   using



       latest   technology   methods   i.e.   by   fax,   e-mail   or   any



       other   form   of   communication   so   that   they   are   kept



       updated of the latest developments.



iv)    If there is any change in different types of schemes, it



       must   be   brought   to   the   notice   of   the   sub-ordinate



       staff of the post offices dealing with deposits in order



       to   ensure   that   correct   procedures   are   followed   and



       correct information is given to the public.



11)    We are constrained to make these observations since



in the case on hand because of the lack of knowledge on



the part of the Post Master who accepted the deposit and



the   appellant,   one   of   the   ancient   temples   in   Tamil   Nadu



lost a substantial amount towards interest.





                                                                        15


12)    With   the   above   observations,   we   dismiss   the   appeal



with no order as to costs.  




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

                                         (P. SATHASIVAM)



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

                                       (A.K. PATNAIK)


NEW DELHI;

JULY 13, 2011.  





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