Since the Special Land Acquisition Officer did not take steps in furtherance of the directions contained in the aforesaid order, respondent No.1 issued purchase notice dated 25.7.2007 under Section 127 of the 1966 Act, which was duly served upon the Corporation. After one year, respondent No.1 submitted plan dated 28.7.2008 for construction of a library building on the land owned by it. The same was rejected by the Competent – Authority vide order dated 29.9.2008 on the ground that the land was reserved for the college and the acquisition proceedings had already been initiated.= if any private land is shown as reserved in the Development plan, the same can be acquired within 10 years either by agreement or by following the procedure prescribed under the 1894 Act and if proceedings for the acquisition of the land are not commenced within that period and a further period of six months from the date of service of notice under Section 127 of the 1966 Act, reservation will be deemed to have lapsed and the land will be available for development by the owner. By applying the ratio of the above-noted judgments to the facts of this case, we hold that the High Court did not commit any error by declaring that reservation of the land owned by respondent No.1 had lapsed and the rejection of its application for construction of library building was legally unsustainable. Consequently, the appeal is dismissed.

Page 1
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2906 OF 2013
(Arising out of SLP(C) No. 19003 of 2009)
State of Maharashtra …Appellant
versus
Bhakti Vedanta Book Trust and others …Respondents
J U D G M E N T
G. S. Singhvi, J.
1. Leave granted.
2. Respondent No.1 is the owner of the land measuring 5300 sq. mtrs.
comprised in Survey No.72, Penkarpada, Mira Road, within the municipal
limits of Mira Bhayandar Municipal Corporation (hereinafter referred to as,
‘the Corporation’). In the Development plan prepared under the Maharashtra
Regional and Town Planning Act, 1966 (for short, ‘the 1966 Act’), which
was sanctioned on 14.5.1997 and was enforced on 15.7.1997, a portion of the
land belonging to respondent No.1 (2500 sq. mtrs.) was shown as reserved
for extension of Royal College of Arts, Science and Commerce run by the
Royal Society of Bombay (for short, ‘the Society’).
3. In December, 2005 the Corporation made an application to the District
Collector for initiation of the acquisition proceedings. The latter asked the
- 1 -Page 2
Corporation to submit detailed proposal for facilitating the acquisition.
Thereupon, the Competent Authority prepared a detailed plan, which was
submitted to the Collector on 26.7.2006.
4. In the meanwhile, the Society filed Writ Petition No.4341/2005 for
issue of a direction to the State Government and the Corporation to expedite
the acquisition proceedings. The Division Bench of the High Court disposed
of the writ petition vide order dated 16.2.2006, the relevant portion of which
is extracted below:
“From the affidavit filed by Sanjay Adhav, Special Land
Acquisition Officer, the Learned G.P. points out that the
Municipal Corporation has already forwarded the necessary
documents to the Collector in the prescribed form. Considering
that, the Special Land Acquisition Officer to pass an award
within six months. It is further made clear that on the Special
Land Acquisition Officer calling on the petitioners to deposit the
compensation as computed by him, the same would be deposited
by the petitioners within four weeks of such demand. It is only
thereupon that the Special Land Acquisition Officer to proceed
to pass an award and, thereafter, to take steps to hand over
possession within one month after the award is passed. Rule
made absolute accordingly.”
5. Since the Special Land Acquisition Officer did not take steps in
furtherance of the directions contained in the aforesaid order, respondent
No.1 issued purchase notice dated 25.7.2007 under Section 127 of the 1966
Act, which was duly served upon the Corporation. After one year,
respondent No.1 submitted plan dated 28.7.2008 for construction of a library
building on the land owned by it. The same was rejected by the Competent
- 2 -Page 3
Authority vide order dated 29.9.2008 on the ground that the land was
reserved for the college and the acquisition proceedings had already been
initiated.
6. Respondent No.1 challenged the rejection of its plan in Writ Petition
No.36/2009. The pleaded case of respondent No.1 was that reservation of
the land had lapsed and the reason assigned by the Competent Authority for
rejecting the building plan was legally untenable. In paragraphs 11 to 16 and
21 to 26 of the writ petition, respondent No.1 made the following averments:
“11. By their letter dated 28th April, 2006, the petitioners forwarded a copy of the aforesaid order of this Hon'ble Court dated
16th February, 2006 to the respondent No.1 and inter alia, requested it to demarcate the land area admeasuring 0.25 hectors to
enable the petitioners to comply with the aforesaid order of this
Hon'ble Court. Hereto annexed and marked Exhibit C is a copy of
the said letter dated 26th April, 2006.
12. The petitioners by their further letter dated 6th May, 2006 inter
alia, requested the respondent No.1 to expedite the process of demarcation and intimate in writing to enable the petitioners to comply with the aforesaid orders of this Hon'ble Court within the stipulated time. Hereto annexed and marked as Exhibit D is the copy of
the said letter dated 6th May, 2006.
13. By the letter dated May 31, 2006, the Advocates for the petitioners, after setting out the relevant fact inter alia requested the respondent No.2, to intimate the petitioners at the earliest the land demarcated and/or reserved for extension of Royal College failing
which the petitioners will not be in a position to comply with the
aforesaid order of this Hon'ble Court. Hereto annexed and marked
as Exhibit E is a copy of the said letter dated May 31, 2006.
14. The Advocates for the said Royal Society of Bombay, by their
letter dated 27th Jun3, 2006, inter alia called upon the petitioners to
remove the illegal structures purported to be standing on the said
- 3 -Page 4
land. Hereto annexed and marked as Exhibit F is a copy of the said
letter dated 27th June, 2006.
15. The advocates for the petitioners by their letter dated June 29,
2006 replied to the aforesaid letter dated 27th June, 2006 of the Advocates for the said Royal Society. By the said letter, the advocates
for the petitioners, after setting out the relevant fact, inter alia informed the Advocates for the said Royal Society, that in the absence of demarcation of land to be allotted to the said Royal Society by the respondent No.1, the petitioners are not in a position to
comply with the aforesaid order of this Hon'ble Court. Hereto annexed and marked as Exhibit G is the copy of the said letter dated
June 29, 2006.
16. By a letter dated 26th June, 2006 the respondent No.1 after setting out some of the facts, inter alia, requested the Collector of
Thane, Thane to transfer the said property inferred to therein to the
municipal Corporation as early as possible. Hereto annexed and
marked Exhibit H is a copy of the said letter dated 28th June, 2008
in English translation along with its original Marathi copy.
21. It can be seen from the facts of the case that the Special Land
Acquisition Officer did not comply with the order of this Hon'ble
Court of making the award within six months.
22. In the circumstances aforesaid, the petitioners aforesaid a purchase notice dated 25th July, 2007 under Section 127 of the Maharashtra Regional and Town Planning Act to the respondent No.1 requiring the respondent No.1 to take steps for acquisition within six
months from the receipt of the said purchase notice, in accordance
with the Act failing which allow the petitioners to develop the said
land for the permissible user. This said purchase notice was received by the respondent No.1 on the same day. Hereto annexed
and marked as Exhibit J is a copy of the said purchase notice dated
25th July, 2007.
23. By a letter dated 18tn August, 2007, the respondent No.1 informed the petitioners that on 26th July, 2006, the respondent No.1
has submitted a proposal for land acquisition in respect of the petitioners land and hence rejected the petitioners said purchase notice.
Hereto annexed and marked as Exhibit K is a copy of the said letter
dated 18th August, 2007 in English translation along with its original Marathi copy together with said copy of the said letter dated
26th July, 2006 in English translation and original Marathi copy.
- 4 -Page 5
No steps are taken to purchase the said portion of land within 6
months in terms of the notice dated 25th July, 2007.
24. The petitioners by their Architects letter dated 28tn July, 2006,
submitted to the respondent No.2 on 2nd August, 2008 inter alia
submitted four sets of proposed plan of the property bearing Survey
NO.237 p. of village Penkarpada, District Thane along with necessary documents for the proposed Library Building and requested the
respondent No.2 to approve the plan at the earliest. Hereto annexed
and marked as Exhibit L is a copy of the said letter dated 28th July,
2008.
25. On behalf of the respondent No.1, the respondent No.3 by the
communication dated 29th September, 2008 inter alia rejected the
application of the petitioners for development of the said plot of
land on the ground that part of the said plot of the land is for extension of college and is reserved for Royal College and in the absence
of NOC from the said Royal College, it is bound by the said reservation of the said plot of land for extension of college and it is not
possible to permit the development. Hereto annexed and marked as
Exhibit M is a copy of the said communication dated 29th September, 2008 in English translation along with its original Marathi
copy.
26. It is submitted that the action of the respondents in not sanctioning and granting the petitioners' proposal submitted to the respondent No.2 vide their Architects letter dated 28th July, 2008, for
construction of library building on the property bearing Survey
No.237 p. of village - Pankarpada, District Thane, Mira Road,
Thane and the communication dated 29th September, 2008 (hereinafter referred to as “the impugned communication”) issued by respondent No.3 rejecting the petitioners proposal is illegal and otherwise untenable and unsustainable in law on the following amongst
other grounds, which are taken without prejudice to one another.”
7. In the counter affidavits filed by respondent Nos. 6, 8-10, 12, 13, 15
and 16, it was pleaded that reservation of the land belonging to respondent
No.1 cannot be treated to have lapsed because the acquisition proceedings
had already commenced and in terms of the direction given by the High Court
in Writ Petition No.4341/2005, the Special Land Acquisition Officer was
- 5 -Page 6
required to pass an award within the stipulated period. However, they did not
dispute the averments contained in various paragraphs of the writ petition,
which have been extracted hereinabove.
8. The Division Bench of the High Court relied upon the judgments of this
Court in Girnar Traders v. State of Maharashtra (2007) 7 SCC 555 and
Prakash R.Gupta v. Lonavala Municipal Council and others (2009) 1 SCC
514 and ruled that reservation of the land belonging to respondent No.1 will
be deemed to have lapsed because the same was neither acquired nor steps
were taken for that purpose within six months of the receipt of purchase
notice.
9. We have heard learned counsel for the parties and perused the record.
Section 126 of the 1966 Act, which provides for the acquisition of land
required or reserved for any of the public purposes specified in any plan or
scheme prepared under the Act and Section 127 of the 1966 Act, which
envisages lapsing of reservation in certain contingencies read as under:
“Section 126. Acquisition of land required for public purposes
specified in plans. - (1) When after the publication of a draft Regional Plan, a Development or any other plan or town planning
scheme, any land is required or reserved for any of the public purposes specified in any plan or scheme under this Act at any time the
Planning Authority, Development Authority, or as the case may be,
any Appropriate Authority may, except as otherwise provided in
section 113A acquire the land,-
(a) by an agreement by paying an amount agreed to, or
(b) in lieu of any such amount, by granting the land-owner or the
- 6 -Page 7
lessee, subject, however, to the lessee paying the lessor or
depositing with the Planning Authority, Development Authority or
Appropriate Authority, as the case may be, for payment to the
lessor, an amount equivalent to the value of the lessor’s interest to
be determined by any of the said Authorities concerned on the basis
of the principles laid down in the Land Acquisition Act, 1894, Floor
Space Index (FSI) or Transferable Development Rights (TDR)
against the area of land surrendered free of cost and free from all
encumbrances, and also further additional Floor Space Index or
Transferable Development Rights against the development or
construction of the amenity on the surrendered land at his cost, as
the Final Development Control Regulations prepared in this behalf
provide, or
(c) by making an application to the State Government for acquiring
such land under the Land Acquisition Act, 1894,
and the land (together with the amenity, if any, so developed or
constructed) so acquired by agreement or by grant of Floor Space
Index or additional Floor Space Index or Transferable Development
Rights under this section or under the Land Acquisition Act, 1894,
as the case may be, shall vest in the Planning Authority.
Development Authority, or as the case may be, any Appropriate
Authority.
(2) On receipt of such application, if the State Government is
satisfied that the land specified in the application is needed for the
public purpose therein specified, or if the State Government (except
in cases falling under section 49 and except as provided in section
113A) itself is of opinion that any land in any such plan is needed
for any public purpose, it may make a declaration to that effect in
the Official Gazette, in the manner provided in section 6 of the
Land Acquisition Act, 1894 (1 of 1894), in respect of the said land.
The declaration so published shall, notwithstanding anything
contained in the said Act, be deemed to be a declaration duly made
under the said section:
Provided that, subject to the provisions of sub-section (4), no such
declaration shall be made after the expiry of one year from the date
of publication of the draft Regional Plan, Development Plan or any
other Plan, or Scheme, as the case may be.
(3) On publication of a declaration under the said section 6, the
Collector shall proceed to take order for the acquisition of the land
under the said Act; and the provisions of that Act shall apply to the
- 7 -Page 8
acquisition of the said land, with the modification that the market
value of the land shall be,-
(i) where the land is to be acquired for the purposes of a new town,
the market value prevailing on the date of publication of the
notification constituting or declaring the Development Authority for
such town;
(ii) where the land is acquired for the purposes of a Special
Planning Authority, the market value prevailing on the date of
publication of the notification of the area as an undeveloped area;
and
(iii) in any other case the market value on the date of publication of
the interim development plan, the draft development plan, or the
plan for area or areas for comprehensive development, whichever is
earlier, or as the case may be, the date or publication of the draft
town planning scheme:
Provided that, nothing in this sub-section shall affect the date for
the purposes of determining the market value of land in respect of
which proceedings for acquisition commenced before the
commencement of the Maharashtra Regional and Town Planning
(Second Amendment) Act, 1972 (Mah. XI of 1973):
Provided further that, for the purpose of clause (ii) of this subsection, the market value in respect of land included in any
undeveloped area notified under subsection (1) of section 40 prior
to the commencement of the Maharashtra Regional and Town
Planning (Second Amendment) Act, 1972 (Mah. XI of 1973), shall
be the market value prevailing on the date of such commencement.
(4) Notwithstanding anything contained in the proviso to subsection (2) and in subsection (3), if a declaration is not made within
the period referred to in subsection (2) or having been made, the
aforesaid period expired at the commencement of the Maharashtra
Regional Town Planning (Amendment) Act, 1993, the State
Government may make a fresh declaration for acquiring the land
under the Land Acquisition Act, 1894 (I of 1894), in the manner
provided by sub-sections (2) and (3) of this section, subject to the
modification that the market value of the land shall be the market
value at the date of declaration in the Official Gazette made for
acquiring the land afresh.
Section 127. Lapsing of reservation –
- 8 -Page 9
If any land reserved, allotted or designated for any purpose
specified in any plan under this Act is not acquired by agreement
within ten years from the date on which a final Regional plan, or
final Development plan comes into force or if proceedings for the
acquisition of such land under this Act or under the Land
Acquisition Act, 1894 (1 of 1894), are not commenced within such
period, the owner or any person interested in the land may serve
notice on the Planning Authority, Development Authority or as the
case may be, Appropriate Authority to that effect, and if within six
months from the date of service of such notice, the land is not
acquired or no steps as aforesaid are commenced for its acquisition,
the reservation, allotment or designation shall be deemed to have
lapsed, and thereupon, the land shall be deemed to be released from
such reservation, allotment or designation and shall become
available to the owner for the purpose of development as otherwise,
permissible in the case of adjacent land under the relevant plan.”
10. The above-reproduced provisions were considered by this Court in
Municipal Corporation of Greater Bombay v. Dr. Hakimwadi Tenants’
Association 1988 (Supp.) SCC 55. The facts of that case were that the Planning
Authority had published a draft Development plan in respect of ‘D’ ward
showing the property belonging to late Dr. Eruchshaw Jamshedji Hakim as
reserved for recreation ground. The final Development plan was made effective
from 7.2.1967. However, no action was taken for the acquisition of land. The
owner served purchase notice dated 1.7.1977 on the Commissioner of the
Corporation. After about 6 months, the Corporation passed resolution dated
10.1.1978 for the acquisition of land and sent an application to the State
Government for taking necessary steps. Thereupon, the State Government issued
Notification dated 7.4.1978 under Section 6 of the Land Acquisition Act, 1894
(for short, ‘the 1894 Act’). The writ petition filed by Dr. Hakimwadi Tenants’
- 9 -Page 10
Association questioning the notification was allowed by the learned Single Judge
of the Bombay High Court, who held that the acquisition proceedings
commenced by the State Government under Section 126(2) of the 1966 Act at
the instance of the Planning Authority were not valid because steps were not
taken for the acquisition of land under Section 126(1) of the 1966 Act read with
Section 6 of the 1894 Act within the prescribed time. The learned Single Judge
observed that the period of six months prescribed under Section 127 of the 1966
Act began to run from the date of service of purchase notice and the Corporation
had to take steps to acquire the property before 4.1.1978, which was not done.
The Division Bench of the High Court approved the view taken by the learned
Single Judge and held that the most crucial step was the application to be made
by the Corporation to the State Government under Section 126(1) of the 1966
Act for the acquisition of the land and such step ought to have been taken within
the period of six months commencing from 4.7.1977. This Court agreed with the
counsel for the Corporation that the words ‘six months from the date of service
of such notice’ used in Section 127 of the 1966 Act were not susceptible to a
literal construction, but observed:
“8. ……………………….it must be borne in mind that the
period of six months provided by Section 127 upon the expiry of
which the reservation of the land under a Development Plan lapses,
is a valuable safeguard to the citizen against arbitrary and irrational
executive action. Section 127 of the Act is a fetter upon the power
of eminent domain. By enacting Section 127 the legislature has
struck a balance between the competing claims of the interests of
the general public as regards the rights of an individual.”
(emphasis supplied)
- 10 -Page 11
The Court then made detailed analysis of Section 127 of the 1966 Act and
held:
“10. Another safeguard provided is the one under Section 127 of
the Act. It cannot be laid down as an abstract proposition that the
period of six months would always begin to run from the date of
service of notice. The Corporation is entitled to be satisfied that the
purchase notice under Section 127 of the Act has been served by
the owner or any person interested in the land. If there is no such
notice by the owner or any person, there is no question of the reservation, allotment or designation of the land under a development
plan of having lapsed. It a fortiori follows that in the absence of a
valid notice under Section 127, there is no question of the land becoming available to the owner for the purpose of development or
otherwise. In the present case, these considerations do not arise.
We must hold in agreement with the High Court that the purchase
notice dated July 1, 1977 served by Respondents 4-7 was a valid
notice and therefore with the failure of the appellant to take any
steps for the acquisition of the land within the period of six months
therefrom, the reservation of the land in the Development Plan for a
recreation ground lapsed and consequently, the impugned notification dated April 7, 1978 under Section 6 of the Land Acquisition
Act issued by the State Government must be struck down as a
nullity.
11. Section 127 of the Act is a part of the law for acquisition of
lands required for public purposes, namely, for implementation of
schemes of town planning. The statutory bar created by Section 127
providing that reservation of land under a development scheme
shall lapse if no steps are taken for acquisition of land within a
period of six months from the date of service of the purchase notice, is an integral part of the machinery created by which acquisition of land takes place. The word “aforesaid” in the collocation of
the words “no steps as aforesaid are commenced for its acquisition”
obviously refer to the steps contemplated by Section 126(1). The
effect of a declaration by the State Government under sub-section
(2) thereof, if it is satisfied that the land is required for the implementation of a regional plan, development plan or any other town
planning scheme, followed by the requisite declaration to that effect
in the official Gazette, in the manner provided by Section 6 of the
Land Acquisition Act, is to freeze the prices of the lands affected.
The Act lays down the principles of fixation by providing firstly, by
the proviso to Section 126(2) that no such declaration under sub-
- 11 -Page 12
section (2) shall be made after the expiry of three years from the
date of publication of the draft regional plan, development plan or
any other plan, secondly, by enacting sub-section (4) of Section 126
that if a declaration is not made within the period referred to in subsection (2), the State Government may make a fresh declaration
but, in that event, the market value of the land shall be the market
value at the date of the declaration under Section 6 and not the market value at the date of the notification under Section 4, and thirdly,
by Section 127 that if any land reserved, allotted or designated for
any purpose in any development plan is not acquired by agreement
within 10 years from the date on which a final regional plan or development plan comes into force or if proceedings for the acquisition of such land under the Land Acquisition Act are not commenced within such period, such land shall be deemed to be released from such reservation, allotment or designation and become
available to the owner for the purpose of development on the failure
of the Appropriate Authority to initiate any steps for its acquisition
within a period of six months from the date of service of a notice by
the owner or any person interested in the land. It cannot be doubted
that a period of 10 years is long enough. The Development or the
Planning Authority must take recourse to acquisition with some
amount of promptitude in order that the compensation paid to the
expropriated owner bears a just relation to the real value of the land
as otherwise, the compensation paid for the acquisition would be
wholly illusory. Such fetter on statutory powers is in the interest of
the general public and the conditions subject to which they can be
exercised must be strictly followed.”
(emphasis supplied)
11. The same issue was again considered in Girnar Traders (II). S.P. Building
Corporation was the owner of a piece of land bearing City Sy. No. 18/738
admeasuring about 5387.35 square yards situated at Carmichael Road, Malabar
Hill Division, Mumbai. The Development plan prepared by Bomba Municipal
Corporation was sanctioned by the State Government on 6.1.1967 and was
enforced on 7.2.1967. The land belonging to S.P. Building Corporation was
notified as “open space and children’s park”. After coming into force of the
- 12 -Page 13
1966 Act, the landowners served notice under Section 127 of that Act for dereservation of the land. Two similar notices were issued by S.P. Building
Corporation on 18.10.2000 and 15.3.2002. After about eight months, the State
Government issued notification dated 20.11.2002 under Section 126(2) and (4)
of the 1966 Act read with Section 6 of the 1894 Act. Writ Petition No.353/2005
filed by S.P. Building Corporation questioning the notification issued by the
State Government was dismissed by the Division Bench of the High Court by
observing that Resolution dated 9.9.2002 passed by the Improvement Committee
of the Municipal Corporation would constitute a step as contemplated by Section
127 of the 1966 Act. The Division Bench further held that Section 11A of the
1894 Act, as amended, is not applicable to the proceedings initiated for the
acquisition of land under the 1966 Act. Civil Appeal No.3922/2007 filed by
S.P. Building Corporation was decided by the three Judge Bench along with
Civil Appeal No.3703/2003 - Girnar Traders v. State of Maharashtra. Speaking
for the majority, P.P. Naolekar, J., referred to the relevant provisions of the 1966
Act including Sections 126 and 127, and observed:
“31. Section 127 prescribes two time periods. First, a period of 10
years within which the acquisition of the land reserved, allotted or
designated has to be completed by agreement from the date on
which a regional plan or development plan comes into force, or the
proceedings for acquisition of such land under the MRTP Act or
under the LA Act are commenced. Secondly, if the first part of Section 127 is not complied with or no steps are taken, then the second
part of Section 127 will come into operation, under which a period
of six months is provided from the date on which the notice has
been served by the owner within which the land has to be acquired
or the steps as aforesaid are to be commenced for its acquisition.
- 13 -Page 14
The six-month period shall commence from the date the owner or
any person interested in the land serves a notice on the planning authority, development authority or appropriate authority expressing
his intent claiming dereservation of the land. If neither of the things
is done, the reservation shall lapse. If there is no notice by the
owner or any person interested, there is no question of lapsing reservation, allotment or designation of the land under the development plan. Second part of Section 127 stipulates that the reservation of the land under a development scheme shall lapse if the land
is not acquired or no steps are taken for acquisition of the land
within the period of six months from the date of service of the purchase notice. The word “aforesaid” in the collocation of the words
“no steps as aforesaid are commenced for its acquisition” obviously
refers to the steps contemplated by Section 126 of the MRTP Act.
If no proceedings as provided under Section 127 are taken and as a
result thereof the reservation of the land lapses, the land shall be released from reservation, allotment or designation and shall be available to the owner for the purpose of development. The availability
of the land to the owner for the development would only be for the
purpose which is permissible in the case of adjacent land under the
relevant plan. Thus, even after the release, the owner cannot utilise
the land in whatever manner he deems fit and proper, but its utilisation has to be in conformity with the relevant plan for which the adjacent lands are permitted to be utilised.”
(emphasis supplied)
Naolekar, J. then referred to the judgment in Dr. Hakimwadi Tenants’
Association (supra) and observed:
“52. ………….Thus, after perusing the judgment in Municipal
Corpn. of Greater Bombay case we have found that the question for
consideration before the Court in Municipal Corpn. of Greater
Bombay case has reference to first step required to be taken by the
owner after lapse of 10 years' period without any step taken by the
authority for acquisition of land, whereby the owners of the land
served the notice for dereservation of the land. The Court was not
called upon to decide the case on the substantial step, namely, the
step taken by the authority within six months of service of notice by
the owners for dereservation of their land which is second step required to be taken by the authority after service of notice.
- 14 -Page 15
53. The observations of this Court regarding the linking of word
“aforesaid” from the wordings “no steps as aforesaid are commenced for its acquisition” of Section 127 with the steps taken by
the competent authority for acquisition of land as provided under
Section 126(1) of the MRTP Act, had no direct or substantial nexus
either with the factual matrix or any of the legal issues raised before
it. It is apparent that no legal issues, either with respect to interpretation of words “no steps as aforesaid are commenced for its acquisition” as stipulated under the provisions of Section 127 or any
link of these words with steps to be taken on service of notice, were
contended before the Court. Thus, observations of the Court did not
relate to any of the legal questions arising in the case and, accordingly, cannot be considered as the part of ratio decidendi. Hence, in
light of the aforementioned judicial pronouncements, which have
well settled the proposition that only the ratio decidendi can act as
the binding or authoritative precedent, it is clear that the reliance
placed on mere general observations or casual expressions of the
Court, is not of much avail to the respondents.
54. When we conjointly read Sections 126 and 127 of the MRTP
Act, it is apparent that the legislative intent is to expeditiously acquire the land reserved under the Town Planning Scheme and,
therefore, various periods have been prescribed for acquisition of
the owner's property. The intent and purpose of the provisions of
Sections 126 and 127 has been well explained in Municipal Corpn.
of Greater Bombay case. If the acquisition is left for time immemorial in the hands of the authority concerned by simply making an
application to the State Government for acquiring such land under
the LA Act, 1894, then the authority will simply move such an application and if no such notification is issued by the State Government for one year of the publication of the draft regional plan under
Section 126(2) read with Section 6 of the LA Act, wait for the notification to be issued by the State Government by exercising suo
motu power under sub-section (4) of Section 126; and till then no
declaration could be made under Section 127 as regards lapsing of
reservation and contemplated declaration of land being released and
available for the landowner for his utilisation as permitted under
Section 127. Section 127 permitted inaction on the part of the acquisition authorities for a period of 10 years for dereservation of the
land. Not only that, it gives a further time for either to acquire the
land or to take steps for acquisition of the land within a period of
six months from the date of service of notice by the landowner for
dereservation. The steps towards commencement of the acquisition
in such a situation would necessarily be the steps for acquisition
- 15 -Page 16
and not a step which may not result into acquisition and merely for
the purpose of seeking time so that Section 127 does not come into
operation.
56. The underlying principle envisaged in Section 127 of the
MRTP Act is either to utilise the land for the purpose it is reserved
in the plan in a given time or let the owner utilise the land for the
purpose it is permissible under the town planning scheme. The step
taken under the section within the time stipulated should be towards
acquisition of land. It is a step of acquisition of land and not step
for acquisition of land. It is trite that failure of authorities to take
steps which result in actual commencement of acquisition of land
cannot be permitted to defeat the purpose and object of the scheme
of acquisition under the MRTP Act by merely moving an application requesting the Government to acquire the land, which Government may or may not accept. Any step which may or may not culminate in the step for acquisition cannot be said to be a step towards acquisition.
57. It may also be noted that the legislature while enacting Section 127 has deliberately used the word “steps” (in plural and not in
singular) which are required to be taken for acquisition of the land.
On construction of Section 126 which provides for acquisition of
the land under the MRTP Act, it is apparent that the steps for acquisition of the land would be issuance of the declaration under
Section 6 of the LA Act. Clause (c) of Section 126(1) merely
provides for a mode by which the State Government can be requested for the acquisition of the land under Section 6 of the LA Act.
The making of an application to the State Government for acquisition of the land would not be a step for acquisition of the land under
reservation. Sub-section (2) of Section 126 leaves it open to the
State Government either to permit the acquisition or not to permit,
considering the public purpose for which the acquisition is sought
for by the authorities. Thus, the steps towards acquisition would
really commence when the State Government permits the acquisition and as a result thereof publishes the declaration under Section
6 of the LA Act.
58. The MRTP Act does not contain any reference to Section 4
or Section 5-A of the LA Act. The MRTP Act contains the provisions relating to preparation of regional plan, the development plan,
plans for comprehensive developments, town planning schemes and
in such plans and in the schemes, the land is reserved for public
purpose. The reservation of land for a particular purpose under the
- 16 -Page 17
MRTP Act is done through a complex exercise which begins with
land use map, survey, population studies and several other complex
factors. This process replaces the provisions of Section 4 of the LA
Act and the inquiry contemplated under Section 5-A of the LA Act.
These provisions are purposely excluded for the purposes of acquisition under the MRTP Act. The acquisition commences with the
publication of declaration under Section 6 of the LA Act. The publication of the declaration under sub-sections (2) and (4) of Section
126 read with Section 6 of the LA Act is a sine qua non for the
commencement of any proceedings for acquisition under the MRTP
Act. It is Section 6 declaration which would commence the acquisition proceedings under the MRTP Act and would culminate into
passing of an award as provided in sub-section (3) of Section 126
of the MRTP Act. Thus, unless and until Section 6 declaration is issued, it cannot be said that the steps for acquisition are commenced.
59. There is another aspect of the matter. If we read Section 126
of the MRTP Act and the words used therein are given the verbatim
meaning, then the steps commenced for acquisition of the land
would not include making of an application under Section 126(1)(c)
or the declaration which is to be made by the State Government under sub-section (2) of Section 126 of the MRTP Act.
60. On a conjoint reading of sub-sections (1), (2) and (4) of Section 126, we notice that Section 126 provides for different steps
which are to be taken by the authorities for acquisition of the land
in different eventualities and within a particular time span. Steps
taken for acquisition of the land by the authorities under Clause (c)
of Section 126(1) have to be culminated into Section 6 declaration
under the LA Act for acquisition of the land in the Official Gazette,
within a period of one year under the proviso to sub-section (2) of
Section 126. If no such declaration is made within the time prescribed, no declaration under Section 6 of the LA Act could be issued under the proviso to sub-section (2) and no further steps for
acquisition of the land could be taken in pursuance of the application moved to the State Government by the planning authority or
other authority.
61. Proviso to sub-section (2) of Section 126 prohibits publication of the declaration after the expiry of one year from the date of
publication of draft regional plan, development plan or any other
plan or scheme. Thus, from the date of publication of the draft regional plan, within one year an application has to be moved under
Clause (c) of Section 126(1) which should culminate into a declaration under Section 6 of the LA Act. As per the proviso to sub-sec-
- 17 -Page 18
tion (2) of Section 126, the maximum period permitted between the
publication of a draft regional plan and declaration by the Government in the Official Gazette under Section 126(2) is one year. In
other words, during one year of the publication of the draft regional
plan, two steps need to be completed, namely, (i) application by the
appropriate authority to the State Government under Section 126(1)
(c); and (ii) declaration by the State Government on receipt of the
application mentioned in Clause (c) of Section 126(1) on satisfaction of the conditions specified under Section 126(2). The only exception to this provision has been given under Section 126(4).”
(emphasis supplied)
12. Recently, another three Judge Bench, of which both of us were
members, considered the scope of Sections 126 and 127 of the 1966 Act in
the Civil Appeal arising out of SLP(C) No.9934 of 2009 Shrirampur
Municipal Council, Shrirampur v. Satyabhamabai Bhimaji Dawkher and
others and connected matters and reiterated the view expressed by the
majority in Girnar Traders v. State of Maharashtra (supra).
13. In the last mentioned judgment, the Court emphasized that if any
private land is shown as reserved in the Development plan, the same can be
acquired within 10 years either by agreement or by following the procedure
prescribed under the 1894 Act and if proceedings for the acquisition of the
land are not commenced within that period and a further period of six months
from the date of service of notice under Section 127 of the 1966 Act,
reservation will be deemed to have lapsed and the land will be available for
development by the owner.
14. By applying the ratio of the above-noted judgments to the facts of this
case, we hold that the High Court did not commit any error by declaring that
- 18 -Page 19
reservation of the land owned by respondent No.1 had lapsed and the rejection
of its application for construction of library building was legally unsustainable.
Consequently, the appeal is dismissed.
……..…..………………..J.
 [G.S. Singhvi]
New Delhi, ……..…..
………………..J.
April 4, 2013 [H.L. Gokhale]
- 19 -

service matter = The doctrine of waiver was also invoked in Vijendra Kumar Verma v. Public Service Commission, Uttarakhand and others (2011) 1 SCC 150 and it was held: “When the list of successful candidates in the written examination was published in such notification itself, it was also made clear that the knowledge of the candidates with regard to basic knowledge of computer operation would be tested at the time of interview for which knowledge of Microsoft Operating System and Microsoft Office operation would be essential. In the call letter also which was sent to the appellant at the time of calling him for interview, the aforesaid criteria was reiterated and spelt out. Therefore, no minimum benchmark or a new procedure was ever introduced during the midstream of the selection process. All the candidates knew the requirements of the selection process and were also fully aware that they must possess the basic knowledge of computer operation meaning thereby Microsoft Operating System and Microsoft Office operation. Knowing the said criteria, the appellant also appeared in the interview, faced the questions from the expert of computer application and has taken a chance and opportunity therein without any protest at any stage and now cannot turn back to state that the aforesaid procedure adopted was wrong and without jurisdiction.” having taken part in the process of selection with full knowledge that the recruitment was being made under the General Rules, the respondents had waived their right to question the advertisement or the methodology adopted by the Board for making selection and the learned Single Judge and the Division Bench of the High Court committed grave error by entertaining the grievance made by the respondents. We are also prima facie of the view that the learned Single Judge committed an error by holding that despite the non obstante clause contained in Rule 2 of the General Rules, the Special Rules would govern recruitment to the post of Physiotherapist. However, we do not consider it necessary to express any conclusive opinion on this issue and leave the question to be decided in an appropriate case. 26. In the result, the appeals are allowed, the impugned orders as also the one passed by the learned Single Judge are set aside and the writ petition filed by the private respondents is dismissed. Parties are left to bear their own costs.

Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 2802-2804 OF 2013
(Arising out of SLP(C) Nos. 30581-30583 of 2012)
Ramesh Chandra Shah and others … Appellants
versus
Anil Joshi and others … Respondents
J U D G M E N T
G.S. SINGHVI, J.
1. Leave granted.
2. In response to an advertisement issued by the Uttarakhand Board of
Technical Education (for short, ‘the Board’), which was published in the
newspaper “Amar Ujala” dated 5.5.2011, the appellants and the private
respondents submitted applications for the posts of Physiotherapist. All of them
appeared in the written test held on 25.9.2011. The appellants were declared
successful and they became entitled to be appointed against the advertised posts.
1Page 2
3. The private respondents, who failed to clear the test filed Civil Misc. Writ
Petition No.1625/2011 for quashing the advertisement and the process of selection.
They pleaded that the advertisement and the test conducted by the Board were
ultra vires the provisions of the Uttar Pradesh Medical Health and Family Welfare
Department Physiotherapist and Occupational Therapist Service Rules, 1998
(hereinafter described as ‘the Special Rules’).
4. In the counter affidavit filed by the official respondents, it was averred that
the selection was made in accordance with the Uttarakhand Procedure for Direct
Recruitment for Group “C” Posts (Outside the purview of the Uttarakhand Public
Service Commission) Rules, 2008 (hereinafter described as, ‘the General Rules’).
It was further averred that the writ petitioners (the private respondents herein) do
not have the locus to question the advertisement and the selection process because
they had submitted applications and participated in the test knowing fully well that
the selection was being made in accordance with the General Rules.
5. The learned Single Judge overruled the objection taken by the official
respondents by observing that the process of recruitment was vitiated due to patent
illegality and, in such a case, the principle of waiver cannot be invoked for nonsuiting the writ petitioners. On merits, the learned Single Judge opined that even
though Rule 2 of the General Rules contains a non obstante clause, the Special
2Page 3
Rules regulating the recruitment of Physiotherapists will prevail and the Board was
not entitled to conduct the test and declare the result by relying upon the General
Rules. He, accordingly, allowed the writ petition and quashed the selection with a
direction that the available posts be advertised afresh.
6. On an appeal filed by some of the successful candidates, the Division Bench
of the High Court held that after having taken a chance for selection, the private
respondents were not entitled to question the process of selection. Notwithstanding
this conclusion, the Division Bench observed that the private respondents were
entitled to insist for a direction to complete the selection process by adding 30%
marks for intermediate examination and 70% marks for diploma/degree
examination to the marks obtained by each examinee, who appeared in the test
conducted by the Board and also to declare that those who have not obtained 30%
marks in diploma/degree examination are unfit. The operative portion of the
judgment of the Division Bench reads as under:
“We, accordingly, allow the appeal and modify the judgment
and order under appeal by upholding the quashing of concerned
merit list of Physiotherapists prepared by the Board, but at the
same time, direct the Board to reject all those examinees, who
appeared in the examination for being appointed as
Physiotherapists, but not received 30% marks in diploma
examination and to complete the selection of Physiotherapists
by adding to the marks obtained by the fit examinees in the
written examination, 30% marks for intermediate examination
and 70% marks for diploma / degree examination. Let the said
exercise be completed as quickly as possible, but not later than
3Page 4
two months from the date of service of a copy of this order
upon the Board.”
7. The review applications filed by the selected candidates were dismissed by
the Division Bench but the time fixed for compliance of the direction contained in
judgment dated 2.5.2012 was extended.
8. Learned counsel for the parties reiterated the arguments made by their
counterparts before the High Court. Shri Pallav Shishodia, learned senior counsel
appearing for the appellants argued that after having accepted the appellants’
contention on the issue of locus of the private respondents to challenge the process
of selection, the Division Bench of the High Court was not at all justified in
directing the Board to prepare fresh select list by adding marks for intermediate
and degree/diploma qualifications. He further argued that the learned Single Judge
and the Division Bench committed grave error by refusing to non suit the private
respondents despite the fact that from the stage of submission of applications they
knew that the selection was being held in accordance with the General Rules.
Learned senior counsel referred to Office Memorandum No.1083/XXXX(2)/2010
dated 3.8.2010 issued by the Personnel Department of the State and the opening
paragraph of the advertisement to drive home the point that the selection was to be
made in accordance with the procedure prescribed under the General Rules and
every candidate was aware of this.
4Page 5
9. Ms. Rachana Srivastava, Standing Counsel for the State of Uttarakhand
adopted the arguments of Shri Shishodia and submitted that the Division Bench of
the High Court was not at all justified in making out an altogether new case for
which there were no pleadings.
10. Learned counsel for the private respondents supported the order passed by
the learned Single Judge and argued that the Division Bench of the High Court did
not commit any error by directing the Board to prepare fresh select list by adding
marks for the academic qualifications to the marks secured in the written test.
11. We have considered the respective arguments and scrutinized the records.
12. The State of Uttarakhand (earlier known as ‘Uttaranchal’) was formed w.e.f.
9.11.2000. Before formation of the new State, recruitment to the posts of
Physiotherapist and Occupational Therapist was governed by the Special Rules and
recruitment to other group “C” posts was governed by the provisions contained in
the Uttar Pradesh Procedure for Direct Recruitment for Group ‘C’ Posts (Outside
the purview of the Uttar Pradesh Public Service Commission) Rules, 1998, which
were published in Official Gazette dated 9.6.1998. After formation of the new
State, the rules governing the recruitment and other conditions of service
applicable to the erstwhile State of Uttar Pradesh were adopted by the Government
of the new State by Adaptation and Modification Order 2002. In 2008, the
5Page 6
Governor of Uttarakhand in exercise of the powers conferred upon him by the
proviso to Article 309 of the Constitution amended the Special Rules. The
academic and preferential qualifications for the post of Physiotherapist, as
contained in the Special Rules were:
“8. Academic Qualifications - A candidate for direct recruitment to
the various categories of posts in the service must possess the
following qualifications-
(1) Physiotherapist - (i) must have passed the Intermediate
Examination with Science of the Board of High School and
Intermediate Education, Uttar Pradesh or an examination recognized
by the Government as equivalent thereto.
(ii) Must possess as degree or diploma in physiotherapy from an
Institution, recognized by the Government.
(2) Occupational Therapist - (i) must have passed the Intermediate
Examination with Science of the Board of High School and
Intermediate Education, Uttar Pradesh or an examination recognized
by the Government as equivalent thereto.
(ii) Must possess a degree or diploma in Occupational Therapy from
an Institution recognized by the Government.
9. Preferential Qualification - A candidate who has-
(i) Served in the Territorial Army for a minimum period of two
years, or
(ii) Obtained ‘B' Certificate of National Cadet Corps, shall, other
things being equal be given preference in the matter of direct
recruitment.”
6Page 7
By Rule 15 of the Special Rules, which is reproduced below, it was laid down that
direct recruitment to the various categories of posts shall be made in accordance
with the General Rules:
“15. Procedure for direct recruitment - Direct recruitment to the various
categories of posts in the service shall be made in accordance with the Uttar
Pradesh Procedure for Direct Recruitment for Group ‘C’ Posts (outside the
purview of the Uttar Pradesh Public Service Commission) Rule, 1998, as
amended from time to time.”
13. By Notification dated 4.8.2008, the Special Rules were amended and the
existing Rule 15 was substituted by the following:
“15(1) For direct recruitment the appointing Authority shall noting the
format of application form and vacancies together in the following
manner:
(i) By issuing advertisement in daily newspaper,
having wide circulation.
(ii) By pasting the notice on the notice-board of
the office or by advertising through
Radio/Television and other employment
newspaper.
(iii) By notifying vacancies to the Employment
Exchange.
(2) For the purpose of direct recruitment there
shall be constituted a selection committee
compressing the following-
(i) Appointing Authority Chairman
(ii) If the Appointing Authority
does not belong to the
Scheduled castes or
scheduled tribes, an officer
belonging to the Scheduled
castes or Scheduled Tribes,
Member
7Page 8
not below the rank of joint
Director, shall nominated by
the Director General. If the
Appointing Authority
belongs to the Scheduled
Castes or Scheduled, Tribes,
in that cases an officer
belonging to other than
Scheduled Castes or
Scheduled Tribes, shall be
nominated by the Director
General
(iii) An officer belonging to the
minority community, not
below the rank of joint
Director to be nominated by
the Director General
Member
(iv) An officer belonging to
Backward Classes, not
below the rant of Joint
Director, to be nominated
by the Director General
Member
(3) The Selection Committee
shall, having regard to the
need of securing due
representation of the
candidates, belonging to the
Scheduled Castes,
Scheduled Tribes and other
categories in accordance
with rule 6, scrutinize the
applications.
4(i) For Selection, there shall be
an objective type written
examination of 100 marks
consisting of single
questions paper which will
include General Hindi,
General Knowledge and
8Page 9
concerned subject. While
evaluating the questions
paper, one marks shall be
awarded, for each correct
answer and 1A mark shall be
deducted for each incorrect answer be
deducted for each incorrect answer as
negative marking
(ii) After the examination is
over, the candidates shall
be allowed to carry back the
Question Booklet of the
Written examination with
them
(iii) After the written
examination, shall
be displayed on the
Uttarakhand
website www.ua.nic.in or
published
in the daily newspaper, having wide
circulation.
(iv) The Answer Sheet of the
written examination shall be
in duplicate (including the
carbon copy and the
candidates shall be
permitted to carry back the
duplicate copy with them.
(v) The candidates will be
awarded 30 percent and 70
percent marks for the
percentage of marks
obtained in the intermediate
examination and
Diploma/Degree
examination, respectively.
(vi) Candidates obtaining less
than 40 percent marks in
the written test and less
than 30 percent marks in
9Page 10
Diploma examination shall
be unfit for selection.
(vii
)
The merit list shall be
prepared by
the Selection committee on
the
basis of the aggregate of
marks
obtained in the test for
selection
carrying 200 marks, which
will
include 100 marks for
written
examination, 30 percent
marks of
Intermediate examination
and 70 per cent marks of
Diploma/Degree
examination.
(5) Thereafter the Selection
Committee shall prepare a
list in order of proficiency as
disclosed by the aggregate
of marks obtained by each
candidate and recommend
such number of candidates ,
it considers suitable for
appointment. It more
candidates obtain equal
marks in the aggregate, the
name of the candidate
obtaining more marks in the
written examination shall be
placed higher in the list if
two or more candidates
obtain equal marks in the
written test also, the
candidate senior in age shall
1Page 11
be placed higher in the
section list. The number of
names in the list shall be
more (but not more than 25
percent) than the number of
vacancies, the selection
Committee shall forward the
list to the Appointing
Authority.”
14. Rule 2 of the General Rules, which is pari materia to rule framed by the
Governor of Uttar Pradesh in 1998 and which contains a non obstante clause, reads
as under:
“Overriding
effect
2. These rules shall have
effect notwithstanding
anything to the
contrary contained in
any other Rules or
orders.”
15. At this stage, it will also be useful to notice the contents of Office
Memorandum dated 3.8.2010 and the opening paragraph of the advertisement
issued by the Board which, as mentioned above, was published in the newspaper
dated 5.5.2011:
Office Memorandum
1Page 12
“STATE OF UTTARAKHAND
PERSONNEL DEPARTMENT-2
NO.1083/XXXX(2)/ 2010 DATED 03rd AUGUST, 2010
OFFICE MEMORANDUM
As per Provisions prescribed, for selection /recruitment on
parties of Group 'C falling outside the purview of Public Service
Commission, selection has to be made by concerned Appointing
Authority.
As separate recruitment/selections, on vacant posts by every
Appointing Authority would require more time & labour.
Hence, after proper consideration Hon'ble Governor
Uttrakhand, in respect of vacant posts of falling outside the purview of
Public Service Commission has nominated Uttrakhand Technical
Education Board, as recruiting agency & further prescribes the
following:
1. In this respect, State will provide to Uttrakhand Technical
Education required resources.
2. Every Appointing Authority, will calculated the vacant posts
falling outside the purview of Uttrakhand Public Service
Commission, and will sent requisition in prescribe proforma in
which detail of number of posts reserve for vertical as well as
horizontal reservation should be clearly mentioned and
should provided the same Uttrakhand Technical Education
Board.
3. Technical Education Board on receiving such requisition from
Appointing Authority should advertise for recruitment under
prescribe Rules, within one month.
4. Technical Education Board, after publication of advertisement,
shall start the selection proceedings, as per provisions of
Uttrakhand Procedure for Direct Recruitment for Group 'C' Posts
(outside the purview of Uttarakhand Public Service Commission)
Rule 2008 & shall complete selection proceedings as soon as
1Page 13
possible & forward its recommendation to the Appointing
Authority.
(Dileep Kr. Kotia)
Principal Secretary”
Advertisement
“UTTARAKHAND TECHNICAL EDUCATION BOARD
ROORKEE (HARIDWAR)-247667
ADVERTISEMENT NO STATE GROUP ‘C’ COMBINED
RECRUITMENT EXAMINATION 2011
DATED 4 MAY 2011
DATE OF ADVERTISEMENT- MAY 04, 2011
LAST DATE OF ACCEPTANCE OF APPLICATION FORMSJUNE 04, 2011
FOR DETAILED ADVERTISEMENT PLEASE VISIT BOARD'S
WEBSITE AT
Vide Office Memo No-1063/XXX(2) 2010 dated
03.08.2010 of Personnel Department-2, Uttarakhand
State, Uttarakhand Technical Education Board, Roorkee
has been chosen as recruiting agency for vacant posts
in various departments of government which are
outside the purview of Public Service Commission
Group ‘c’ Combined Recruitment Examination- 2011.”
16. The method of selection enumerated in para 11 of the advertisement, which
was a clear departure from the Special Rules, reads thus:
“11. SELECTION EXAMINATION AND SYLLABUS OF
QUESTION PAPER:- For selection, there shall be an
1Page 14
Objective type written examination Of 100 marks
consisting of single Question paper out of which questions of 50
marks will include general Hindi, general knowledge, general
awareness and knowledge of geography, culture, economy and
history of State of Uttarakhand and questions of 50 Marks will be
based on the subjects Of minimum required qualification for the
concerned post. Written examination will be of two hours. While
evaluating the question paper, one mark shall be awarded for
each correct answer & marks shall be deducted for each incorrect
answer as negative marking.
Retrenched employees will be awarded 5 marks for each year of
completed Service upto the maximum of 15 marks.
After the written examination is over, the candidate shall be
allowed to carry with them the question booklet along with the carbon
copy of the answer sheet.
After the written examination, the answer key of the written
examination will be displayed on the Board's website uk.gov.in and
www.ubter.in
In the marks obtained in written Examination will be added other
evaluations which Includes weightage points for ‘retrenched
employees' and for post having technical subject Of (village
development officer) for which competitive exam of prescribed
marks is held and marks obtained in such exams, after adding
such marks or weightage as the case may be in the marks
obtained in written test merit list will be prepared (final select
list).
Such list shall contain names more than the vacancies
(but not more than 25%)
Final select list will be displayed on the Board's web site
uk.gov.in and www.ubter.in
If two candidates obtain equal marks than one who has
obtained higher marks in the written test shall be
placed higher in the merit list, but if marks are equal in
the written test also then one who is elder in age shall
be placed higher in the merit list.”
1Page 15
17. Those who were desirous of competing for the post of Physiotherapist,
which is a Group ‘C’ post in the State of Uttarakhand must have, after reading the
advertisement, become aware of the fact that by virtue of Office Memorandum
dated 3.8.2010, the Board has been designated as the recruiting agency and the
selection will be made in accordance with the provisions of the General Rules.
They appeared in the written test knowing that they will have to pass the
examination enumerated in para 11 of the advertisement. If they had cleared the
test, the private respondents would not have raised any objection to the selection
procedure or the methodology adopted by the Board. They made a grievance only
after they found that their names do not figure in the list of successful candidates.
In other words, they took a chance to be selected in the test conducted by the
Board on the basis of the advertisement issued in November 2011. This conduct of
the private respondents clearly disentitles them from seeking relief under Article
226 of the Constitution. To put it differently, by having appeared in the written
test and taken a chance to be declared successful, the private respondents will be
deemed to have waived their right to challenge the advertisement and the
procedure of selection.
18. It is settled law that a person who consciously takes part in the process of
selection cannot, thereafter, turn around and question the method of selection and
its outcome.
1Page 16
19. One of the earliest judgments on the subject is Manak Lal v. Dr. Prem
Chand AIR 1957 SC 425. In that case, this Court considered the question whether
the decision taken by the High Court on the allegation of professional misconduct
leveled against the appellant was vitiated due to bias of the Chairman of the
Tribunal constituted for holding inquiry into the allegation. The appellant alleged
that the Chairman had appeared for the complainant in an earlier proceeding and,
thus, he was disqualified to judge his conduct. This Court held that by not having
taken any objection against the participation of the Chairman of the Tribunal in the
inquiry held against him, the appellant will be deemed to have waived his
objection. Some of the observations made in the judgment are extracted below:
“.........If, in the present case, it appears that the appellant knew all the
facts about the alleged disability of Shri Chhangani and was also
aware that he could effectively request the learned Chief Justice to
nominate some other member instead of Shri Chhangani and yet did
not adopt that course, it may well be that he deliberately took a chance
to obtain a report in his favour from the Tribunal and when he came to
know that the report had gone against him he thought better of his
rights and raised this point before the High Court for the first time.
From the record it is clear that the appellant never raised this point
before the Tribunal and the manner in which this point was raised by
him even before the High Court is somewhat significant. The first
ground of objection filed by the appellant against the Tribunal's report
was that Shri Chhangani had pecuniary and personal interest in the
complainant Dr Prem Chand. The learned Judges of the High Court
have found that the allegations about the pecuniary interest of Shri
Chhangani in the present proceedings are wholly unfounded and this
finding has not been challenged before us by Shri Daphtary. The
1Page 17
learned Judges of the High Court have also found that the objection
was raised by the appellant before them only to obtain an order for a
fresh enquiry and thus gain time...............
.........Since we have no doubt that the appellant knew the material
facts and must be deemed to have been conscious of his legal rights in
that matter, his failure to take the present plea at the earlier stage of
the proceedings creates an effective bar of waiver against him. It
seems clear that the appellant wanted to take a chance to secure a
favourable report from the Tribunal which was constituted and when
he found that he was confronted with an unfavourable report, he
adopted the device of raising the present technical point.”
20. In Dr. G. Sarna v. University of Lucknow (1976) 3 SCC 585, this Court held
that the appellant who knew about the composition of the Selection Committee and
took a chance to be selected cannot, thereafter, question the constitution of the
Committee.
21. In Om Prakash Shukla v. Akhilesh Kumar Shukla (1986) Supp. SCC 285, a
three-Judge Bench ruled that when the petitioner appeared in the examination
without protest, he was not entitled to challenge the result of the examination. The
same view was reiterated in Madan Lal v. State of J & K (1995) 3 SCC 486 in the
following words:
“The petitioners also appeared at the oral interview conducted by the
Members concerned of the Commission who interviewed the
petitioners as well as the contesting respondents concerned. Thus the
petitioners took a chance to get themselves selected at the said oral
interview. Only because they did not find themselves to have emerged
successful as a result of their combined performance both at written
1Page 18
test and oral interview, they have filed this petition. It is now well
settled that if a candidate takes a calculated chance and appears at the
interview, then, only because the result of the interview is not
palatable to him, he cannot turn round and subsequently contend that
the process of interview was unfair or the Selection Committee was
not properly constituted. In the case of Om Prakash Shukla v.
Akhilesh Kumar Shukla it has been clearly laid down by a Bench of
three learned Judges of this Court that when the petitioner appeared at
the examination without protest and when he found that he would not
succeed in examination he filed a petition challenging the said
examination, the High Court should not have granted any relief to
such a petitioner.”
22. In Manish Kumar Shahi v. State of Bihar (2010) 12 SCC 576, this Court
reiterated the principle laid down in the earlier judgments and observed:
“We also agree with the High Court that after having taken part in the
process of selection knowing fully well that more than 19% marks
have been earmarked for viva voce test, the petitioner is not entitled to
challenge the criteria or process of selection. Surely, if the petitioner's
name had appeared in the merit list, he would not have even dreamed
of challenging the selection. The petitioner invoked jurisdiction of the
High Court under Article 226 of the Constitution of India only after he
found that his name does not figure in the merit list prepared by the
Commission. This conduct of the petitioner clearly disentitles him
from questioning the selection and the High Court did not commit any
error by refusing to entertain the writ petition.”
23. The doctrine of waiver was also invoked in Vijendra Kumar Verma v.
Public Service Commission, Uttarakhand and others (2011) 1 SCC 150 and it was
held:
 “When the list of successful candidates in the written examination
was published in such notification itself, it was also made clear that
1Page 19
the knowledge of the candidates with regard to basic knowledge of
computer operation would be tested at the time of interview for which
knowledge of Microsoft Operating System and Microsoft Office
operation would be essential. In the call letter also which was sent to
the appellant at the time of calling him for interview, the aforesaid
criteria was reiterated and spelt out. Therefore, no minimum
benchmark or a new procedure was ever introduced during the
midstream of the selection process. All the candidates knew the
requirements of the selection process and were also fully aware that
they must possess the basic knowledge of computer operation
meaning thereby Microsoft Operating System and Microsoft Office
operation. Knowing the said criteria, the appellant also appeared in
the interview, faced the questions from the expert of computer
application and has taken a chance and opportunity therein without
any protest at any stage and now cannot turn back to state that the
aforesaid procedure adopted was wrong and without jurisdiction.”
24. In view of the propositions laid down in the above noted judgments, it must
be held that by having taken part in the process of selection with full knowledge
that the recruitment was being made under the General Rules, the respondents had
waived their right to question the advertisement or the methodology adopted by the
Board for making selection and the learned Single Judge and the Division Bench
of the High Court committed grave error by entertaining the grievance made by
the respondents.
25. We are also prima facie of the view that the learned Single Judge committed
an error by holding that despite the non obstante clause contained in Rule 2 of the
General Rules, the Special Rules would govern recruitment to the post of
Physiotherapist. However, we do not consider it necessary to express any
1Page 20
conclusive opinion on this issue and leave the question to be decided in an
appropriate case.
26. In the result, the appeals are allowed, the impugned orders as also the one
passed by the learned Single Judge are set aside and the writ petition filed by the
private respondents is dismissed. Parties are left to bear their own costs.
…………………………J.
(G.S. SINGHVI)
…………………………J.
(KURIAN JOSEPH)
New Delhi;
April 3, 2013.
2

Section 304-B and Section 498-A of the Indian Penal Code (IPC)= whether the conviction of Kulwant Singh (appellant No.1), his father Gurtehal Singh (appellant no.2) and his mother Harminder Kaur (appellant no.3) for offences punishable under Section 304-B and Section 498-A of the Indian Penal Code (IPC) ought to be sustained. In our opinion, there is sufficient evidence on record to sustain their conviction.= We have given considerable thought to this submission but find that the law prescribes a minimum of seven years imprisonment for an offence under Section 304-B of the IPC. There is no provision for reducing the sentence for any reason whatsoever nor has any exception being carved out in law. Consequently, we cannot accept this plea. We must not lose sight of the fact that even though Gurtehal Singh and Harminder Kaur are now aged, they were responsible for the death of Rachhpal Kaur through aluminium phosphide poisoning. Rachhpal Kaur was a young lady when she died and we can only guess the trauma that her unnatural death would have caused to her parents. Sympathizing with an accused person or a convict does not entitle to us to ignore the feelings of the victim or the immediate family of the victim. Conclusion: 42. There is no merit in the appeal. It is accordingly dismissed.

Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1548 OF 2007
Kulwant Singh & Ors. …..Appellants
Versus
State of Punjab …..Respondent
J U D G M E N T
Madan B. Lokur, J.
1. The question before us is whether the conviction of
Kulwant Singh (appellant No.1), his father Gurtehal Singh
(appellant no.2) and his mother Harminder Kaur (appellant
no.3) for offences punishable under Section 304-B and
Section 498-A of the Indian Penal Code (IPC) ought to be
sustained. In our opinion, there is sufficient evidence on
record to sustain their conviction.
The facts:
2. Rachhpal Kaur (deceased) married Kulwant Singh on
18th November 1984. It appears from the record that even
though she brought sufficient dowry, she was harassed and
Crl. Appeal No.1548 of 2007 Page 1 of 19 Page 2
maltreated by her husband and in-laws for bringing
insufficient dowry. The harassment and maltreatment
continued resulting in the intervention by the Panchayat on
or about 13th September 1988 to sort out the problem so
that the couple could live a normal married life.
Unfortunately, the efforts of the Panchayat did not yield any
positive result and about a month later on 14th October 1988
Rachhpal Kaur died under suspicious circumstances.
3. The record indicates that Rachhpal Kaur was taken to
the Civil Hospital, Mandi Gobindgarh after rigor mortis had
set in and there was froth coming from her mouth and nose.
The appellants submitted an application Exh. DC for taking
possession of the corpse without a post-mortem examination
but that was not acceded to. A post-mortem examination
was conducted on 15th October 1988 which revealed that
Rachhpal Kaur was carrying a 26-week fetus. Some parts of
her body were then removed, sealed and sent for chemical
examination to the Chemical Examiner to the Government of
Punjab, Patiala. The report of the Chemical Examiner,
received much later, indicated the presence of aluminium
Crl. Appeal No.1548 of 2007 Page 2 of 19 Page 3
phosphide (a pesticide) in the stomach of the deceased and
phosphine, a constituent of aluminium phosphide, detected
in her liver, spleen, right kidney and right lung. According to
Dr. Asha Kiran, Medical Officer, Civil Hospital, Mandi
Gobindgarh (PW-1) the contents were sufficient to cause the
death of Rachhpal Kaur.
4. Her younger sister Avtar Kaur (PW-9) gave intimation of
Rachhpal Kaur’s death on 15th October 1988 to her father
Sukhdev Singh (PW-5). Thereupon Sukhdev Singh reached
the hospital and claimed the body of Rachhpal Kaur and later
cremated her.
5. Sukhdev Singh sought to lodge a first information
report (FIR) regarding the suspicious death of Rachhpal Kaur
but could not do so. The police authorities declined to
register the FIR since the report of the chemical examination
was not available. However, Sukhdev Singh did make an
application in the concerned police station which was
marked for necessary action to ASI Karnail Singh (PW-12) on
18th October 1988.
Crl. Appeal No.1548 of 2007 Page 3 of 19 Page 4
6. Eventually, after the cause of Rachhpal Kaur’s death
was ascertained, FIR No.67/1988 dated 2nd November 1988
was registered and investigations commenced by the police.
7. The FIR broadly stated that sufficient dowry had been
given to the appellants at the time of Rachhpal Kaur’s
marriage with Kulwant Singh. However, a few days after her
marriage she was maltreated for bringing insufficient dowry,
treated with cruelty and beaten up several times. The FIR
goes on to state that a Panchayat had visited the house of
Kulwant Singh but he and the other in-laws of the deceased
informed the Panchayat that they would continue to maltreat
Rachhpal Kaur until their demands for dowry were fulfilled.
8. In the FIR, Sukhdev Singh stated that on 15th October
1988 he came to know from his daughter Avtar Kaur that
Rachhpal Kaur had been murdered under suspicious
circumstances. Sukhdev Singh was astonished to learn this
and he reported the matter to the local police but they
refused to take action since the report of the chemical
examination had not been received. According to Sukhdev
Singh, the appellants and other in-laws of Rachhpal Kaur had
Crl. Appeal No.1548 of 2007 Page 4 of 19 Page 5
committed an offence punishable under Section 304-B and
Section 498-A of the IPC for causing the death of Rachhpal
Kaur.
9. Upon registration of the FIR and receipt of the report of
the Chemical Examiner, the local police carried out
investigations and filed a charge sheet against the
appellants as well as Gurcharan Singh and Sukhwant Singh,
brothers of Kulwant Singh. The case was committed to the
Sessions Court and registered as Sessions Case No.35-T of
5.5.1989 by the Additional Sessions Judge at Patiala.
10. After charges were framed, all the accused persons
pleaded not guilty and claimed trial.
11. The prosecution produced several witnesses to bring
home its case that the accused persons killed Rachhpal Kaur
by poisoning her. The defence also produced their witnesses.
Decision of the Trial Court:
12. The Trial Judge, by his judgment and order dated 17th
September 1993 found the appellants Kulwant Singh,
Gurtehal Singh and Harminder Kaur guilty of an offence
punishable under Section 304-B of the IPC. They were then
sentenced to undergo rigorous imprisonment for seven
Crl. Appeal No.1548 of 2007 Page 5 of 19 Page 6
years. They were also convicted for an offence punishable
under Section 498-A of the IPC and sentenced to undergo
rigorous imprisonment for one year and to pay a fine of
Rs.500/-. The sentences were to run concurrently.
13. The Trial Court held that there was no delay in lodging
the FIR by Sukhdev Singh. In fact, soon after the cremation
of Rachhpal Kaur he went to the concerned Police Station at
Amloh and apparently reported the suspicious circumstances
under which his daughter had died. However, a case was
not registered since the chemical examination report had
not been received. Sukhdev Singh also moved an
application before senior police officers and even appeared
before the Senior Superintendent of Police at Patiala and it is
then that the FIR was registered on 2nd November 1988. On
these facts the Trial Court concluded that there was no delay
in lodging the FIR by Sukhdev Singh.
14. On the issue of a demand for dowry, maltreatment and
harassment of Rachhpal Kaur, the Trial Court relied on the
evidence of Sukhdev Singh (PW-5), his daughter Avtar Kaur
(PW-9) his son Jasbir Singh (PW-11) and more importantly
Crl. Appeal No.1548 of 2007 Page 6 of 19 Page 7
the members of the Panchayat, Sohan Singh (PW-7) and
Darshan Singh (PW-8) who had gone to Kulwant Singh’s
house to sort out the issues between him and Rachhpal
Kaur. The members of the Panchayat categorically stated
(and this was believed by the Trial Court) that when they
met Rachhpal Kaur on 13th September 1988 she was crying
and had told them that the appellants demanded more
dowry from her. She also stated that the appellants were
given a buffalo and Rs.6,000/- in cash over and above the
dowry given at the time of marriage but the appellants still
complained that the dowry was insufficient.
15. Avtar Kaur (PW-9) had met Rachhpal Kaur on 8th
October 1988 and was told by the deceased that her
husband and members of his family were harassing her for
dowry. The appellants subjected her to beating and that she
wanted to be taken away from the house of her in-laws.
16. Jasbir Singh (PW-11) was believed by the Trial Court
when he stated that he had borrowed Rs.6,000/- to give to
the appellants as demanded by them. It was contended that
Sukhdev Singh owned sufficient land and therefore, there
Crl. Appeal No.1548 of 2007 Page 7 of 19 Page 8
was no need for his son to borrow Rs.6,000/- against a
promissory note for payment to the appellants. The Trial
Court did not accept this contention and found that since
Sukhdev Singh had a very large family, it was not unnatural
if his son had borrowed some money to give to the
appellants.
17. The Trial Court also concluded that Rachhpal Kaur had
died due to aluminium phosphide poisoning and the
ingredients of Section 304-B of the IPC had been made out
and additionally the ingredients of Section 498-A had also
been made out. It was held that Rachhpal Kaur’s death was
not a case of suicide.
18. On the above findings, the Trial Court concluded that
the appellants were guilty of the offences that they were
charged with. However, it was held that the prosecution had
not been able to prove beyond reasonable doubt that
Sukhwant Singh and Gurcharan Singh had committed any
offence. On this basis, they were found not guilty while the
appellants were awarded the punishment as mentioned
above.
Crl. Appeal No.1548 of 2007 Page 8 of 19 Page 9
Decision of the High Court:
19. Feeling aggrieved by the judgment and order as well as
the sentence awarded by the Trial Court, the appellants
preferred Criminal Appeal No.356-SB of 1993, which was
heard and dismissed by the High Court of Punjab and
Haryana by its judgment and order dated 2nd May 2007.
20. The High Court independently examined the evidence
on record and concluded that the prosecution had led
sufficient evidence to show that the appellants, on account
of a demand for dowry, maltreated Rachhpal Kaur and that
she died under abnormal circumstances at the house of her
in-laws. The High Court believed the witnesses who had
consistently supported the prosecution version of
harassment, maltreatment and misbehavior by the
appellants with Rachhpal Kaur on account of her allegedly
bringing insufficient dowry.
21. The High Court also believed the case put forward by
the prosecution that in addition to the dowry brought by
Rachhpal Kaur at the time of her marriage, the appellants
Crl. Appeal No.1548 of 2007 Page 9 of 19 Page 10
had been given a buffalo and Rs.6,000/- in cash by Sukhdev
Singh (PW-5) and Jasbir Singh (PW-11).
22. The High Court considered and rejected the contention
of the appellants that the demand for dowry was an
afterthought since it did not find any mention in the FIR. The
High Court noted that the FIR clearly records that Rachhpal
Kaur had mentioned the demand for dowry to the members
of the Panchayat and her immediate family. Though the
demand for dowry was not specific, there was undoubtedly a
demand made by the appellants and which was satisfied by
Rachhpal Kaur’s family.
23. The High Court found that the death of Rachhpal Kaur
was due to aluminium phosphide poisoning and that there
was sufficient evidence on record to hold the appellants
guilty of the offences that they were charged with.
Accordingly, the appeal filed by the appellants was
dismissed by the High Court.
24. It is under these circumstances that the present appeal
is before us.
Crl. Appeal No.1548 of 2007 Page 10 of 19Page 11
Submissions and discussion:
25. Learned counsel for the appellants made three
submissions before us. It was firstly submitted that there
was a delay in lodging the FIR by Sukhdev Singh inasmuch
as the incident occurred on 14th October 1988 but the FIR
was lodged on 2nd November 1988; secondly, there was a
great deal of improvement in the case by Sukhdev Singh and
other prosecution witnesses inasmuch as the FIR and the
statements recorded during investigations under Section 161
of the Code of Criminal Procedure did not mention anything
about the demand for dowry having been raised by the
appellants more particularly about a buffalo having been
demanded and given to the appellants and payment of
Rs.6,000/- again on the demand of the appellants. It was
contended, in other words, that a completely new story was
set up by the prosecution witnesses and for this reason they
should not be believed; thirdly, the ingredients of Section
304-B of the IPC were not made out since the alleged
demand for dowry was not proximate to the death of
Rachhpal Kaur.
Crl. Appeal No.1548 of 2007 Page 11 of 19Page 12
26. We are unable to agree with learned counsel for the
appellants in respect of any of the submissions advanced by
him.
27. As far as the delay in lodging the FIR is concerned, we
are in agreement with the conclusion arrived at by the Trial
Court that there was no delay in lodging the FIR. It may be
mentioned that the argument of delay in lodging the FIR was
not raised before the High Court.
28. Be that as it may, the facts reveal that Sukhdev Singh
(PW-5) had made sufficient attempts to have the FIR lodged
but was unable to do so since the report of the Chemical
Examiner had not yet been received by the concerned police
station. In any event, it is also clear from the evidence of
ASI Karnail Singh (PW-12) that Sukhdev Singh had submitted
an application which was marked by S.I. Balbir Singh (PW-13)
the Station House Officer of Police Station Amloh to him
(Karnail Singh) on 18th October 1989. S.I. Balbir Singh also
stated in his evidence that he had received an application
made by Sukhdev Singh to the Senior Superintendent of
Police at Patiala and it was then that he registered the
Crl. Appeal No.1548 of 2007 Page 12 of 19Page 13
FIR on 2nd November 1988. As such, it cannot be said that
there was any delay in lodging the FIR.
29. We may also mention that the issue about the delay in
lodging an FIR has been dealt by this Court ad nauseum and
we should not make a fetish out of any perceived delay in
lodging the FIR. Some time back, one of us (Madan B.Lokur,
J.) had occasion to deal with this issue in Gurmail Singh v.
State of Punjab, (2012) 11 SCALE 224 and it is not
necessary to repeat the conclusions arrived at nor is it
necessary to reaffirm the principle that delay in lodging the
FIR cannot be a ground for throwing away the entire
prosecution case as held in Jitender Kumar v. State of
Haryana, (2012) 6 SCC 204.
30. The second contention urged by the appellants also
does not merit any serious consideration. It is true that in
the FIR Sukhdev Singh did not give any specific instance of
the demand for dowry made by the appellants but he did
categorically mention that there was a demand for more
dowry by the appellants. Apart from the statement in the
FIR, both the Courts have considered the overwhelming
Crl. Appeal No.1548 of 2007 Page 13 of 19Page 14
evidence of several prosecution witnesses to the effect that
there was a demand for dowry made by the appellants and
concurrently held that the appellants had made a demand.
We do not see any reason to interfere with this finding of
fact.
31. That apart, there is sufficient evidence on record that
the appellants had demanded a buffalo from Sukhdev Singh
and this demand was acceded to. There is also sufficient
evidence that the appellants had demanded Rs.6,000/- from
Sukhdev Singh and even this demand was acceded to with
Jasbir Singh (PW-11) giving the amount to the appellants.
32. The final contention urged on behalf of the appellants
also requires to be rejected. Section 304-B of the IPC reads
as follows:
“304-B. Dowry death.-(1) Where the death of a
woman is caused by any burns or bodily injury or occurs
otherwise than under normal circumstances within
seven years of her marriage and it is shown that soon
before her death she was subjected to cruelty or
harassment by her husband or any relative of her
husband for, or in connection with, any demand for
dowry, such death shall be called "dowry death", and
such husband or relative shall be deemed to have
caused her death.
Crl. Appeal No.1548 of 2007 Page 14 of 19Page 15
Explanation.- For the purposes of this sub- section,
"dowry" shall have the same meaning as in section 2 of
the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished
with imprisonment for a term which shall not be less
than seven years but which may extend to
imprisonment for life.”
33. There is no dispute that Rachhpal Kaur died under
abnormal circumstances due to aluminium phosphide
poisoning within seven years of her marriage. The evidence
on record clearly indicates that she was subjected to
harassment for dowry not only by Kulwant Singh but also by
his parents. In fact, the harassment continued, as stated by
the members of the Panchayat who visited Kulwant Singh’s
house on 13th September 1988 and also by Avtar Kaur (PW-
9) on 8th October 1988. Rachhpal Kaur was, therefore,
harassed for dowry till almost immediately before her death.
34. We may also make a reference to Section 113-B of the
Evidence Act, 1872 which reads as follows:-
“113-B. Presumption as to dowry death.- When the
question is whether a person has committed the dowry
death of a woman and it is shown that soon before her
death such woman had been subjected by such person
to cruelty or harassment for, or in connection with, any
Crl. Appeal No.1548 of 2007 Page 15 of 19Page 16
demand for dowry, the Court shall presume that such
person had caused the dowry death.
Explanation.- For the purposes of this section,
"dowry death" shall have the same meaning as in
section 304-B of the Indian Penal Code (45 of 1860).”
35. The presumption of a dowry death can be raised in four
circumstances given below and which have been mentioned
in Tarsem Singh v. State of Punjab (2008) 16 SCC 155:
“(1) The question before the court must be whether the
accused has committed the dowry death of a woman.
(This means that the presumption can be raised only if
the accused is being tried for the offence under Section
304-B IPC.)
(2) The woman was subjected to cruelty or harassment
by her husband or his relatives.
(3) Such cruelty or harassment was for, or in connection
with, any demand for dowry.
(4) Such cruelty or harassment was soon before her
death.”
All these ingredients are present in this case and a
presumption of a dowry death can safely be drawn.
36. Learned counsel for the appellants referred to
Appasaheb & Anr. v. State of Maharashtra, (2007) 9
SCC 721 wherein it was held that asking the wife to bring
money for meeting domestic expenses on account of
Crl. Appeal No.1548 of 2007 Page 16 of 19Page 17
financial stringency and for purchasing manure cannot be
held as a demand for dowry. We are unable to see how this
decision has any relevance to the facts of the present case
or to the controversy that we are concerned with. In any
event, the observations made in Appasaheb were
explained in Bachni Devi v. State of Haryana, (2011) 4
SCC 427 wherein it was held that the observations in
Appasaheb were required to be understood in the context
of the case. It was held that Appasaheb cannot be read as
laying down an absolute proposition that a demand for
money or some property or valuable security on account of
some business or financial requirement could not be termed
as a demand for dowry.
37. Finally, reference was made to Vipin Jaiswal v. State
of Andhra Pradesh, 2013 (3) SCALE 525 which also has
no relevance to the present case since in that case the
ingredients of harassment or cruelty had not been made out.
Vipin Jaiswal’s wife committed suicide and left behind a note
to the effect that nobody was responsible for her death and
that her parents and family members had harassed her
Crl. Appeal No.1548 of 2007 Page 17 of 19Page 18
husband and it is because of this that she was fed up with
her life and the quarrels taking place.
38. There is no doubt that insofar as the present case is
concerned, Rachhpal Kaur was harassed by her husband and
in-laws for dowry and that she died under abnormal
circumstances due to aluminium phosphide poisoning. In
our opinion, there is sufficient evidence to hold the
appellants guilty of offences punishable under Section 304-B
of the IPC and 498-A of the IPC. We see no reason to disturb
the conclusions concurrently arrived at by both the Courts
below.
39. Learned counsel appearing for the appellants
contended that Gurtehal Singh is today about 80 years old
and his legs have been amputated because of severe
diabetes. It was also submitted that Harminder Kaur is
about 78 years of age and she needs to look after Gurtehal
Singh. In these circumstances considering their age and
physical disability, a sympathetic view should be taken in the
matter as far as they are concerned.
Crl. Appeal No.1548 of 2007 Page 18 of 19Page 19
40. We have given considerable thought to this submission
but find that the law prescribes a minimum of seven years
imprisonment for an offence under Section 304-B of the IPC.
There is no provision for reducing the sentence for any
reason whatsoever nor has any exception being carved out
in law. Consequently, we cannot accept this plea. 
41. We must not lose sight of the fact that even though
Gurtehal Singh and Harminder Kaur are now aged, they were
responsible for the death of Rachhpal Kaur through
aluminium phosphide poisoning. Rachhpal Kaur was a young
lady when she died and we can only guess the trauma that
her unnatural death would have caused to her parents.
Sympathizing with an accused person or a convict does not
entitle to us to ignore the feelings of the victim or the
immediate family of the victim. 
Conclusion:
42. There is no merit in the appeal. It is accordingly
dismissed. 
….……………………..J.
(A.K. Patnaik)
Crl. Appeal No.1548 of 2007 Page 19 of 19Page 20
….……………………..J.
(Madan B. Lokur)
New Delhi;
April 02, 2013
Crl. Appeal No.1548 of 2007 Page 20 of 19

we hold that the order of detention dated 16/4/2012 is valid. However, on account of delay in disposal of the representation of the detenu by the State Government, the continued detention of the detenu is rendered illegal. We, therefore, direct that the detenu – Abdul Nasar Adam Ismail be released from detention forthwith if he is not already released from detention and he is not required in any other case. The appeal is disposed of accordingly.

Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 520 OF 2013
[Arising out of Special Leave Petition (Crl.) No.1359 of 2013]
ABDUL NASAR ADAM ISMAIL
Through Abdul Basheer Adam Ismail … APPELLANT
Versus
THE STATE OF MAHARASHTRA
& ORS. … RESPONDENTS
JUDGMENT
(SMT.) RANJANA PRAKASH DESAI, J.
1. Leave granted.
2. In this appeal, by special leave, the appellant has
challenged judgment and order dated 23/01/2013 passed by
the Division Bench of the Bombay High Court dismissing the
writ petition filed by him challenging order of detention
dated 16/4/2012 issued by the detaining authority i.e. the
Principal Secretary (Appeals and Security), Government ofPage 2
Maharashtra, Home Department under the provisions of
Section 3(1) of the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974 (for short, “the
said Act”). The order of detention directed his detention
with a view to preventing him in future from smuggling
goods. 
3. From the grounds of detention, it appears to be the
case of detaining authority that on 12/8/2011, the appellant
Abdul Nasar Adam Ismail (“detenu” for convenience)
arrived from Dubai by Air India flight No.AI-984. He was
carrying one trolley hand bag. After he was cleared through
green channel, he was stopped by the Assistant
Commissioner of Customs on duty. When his personal
search was conducted, it was noticed that he had concealed
two packets in his undergarments near his groin area and
two packets under the knee caps worn on calves. On
removal of his pants, four plastic packets wrapped with cello
tape, which were kept inside his cycling shorts and knee
caps worn by him on his calves were recovered. Detailed
2Page 3
examination of these four packets resulted in recovery of
3086 gms. of 22 kt. and 1004 gms. of 18 kt. gold chains.
The total seized gold was valued at Rs.95,35,932/-. The
detenu’s statements under Section 108 of the Customs Act,
1962 were recorded. On perusal of the proposal and
accompanying documents sent by the sponsoring authority,
the detaining authority passed the aforementioned detention
order.
4. We have heard, at some length, Mr. K.K. Mani, learned
counsel appearing for the detenu. He assailed the detention
order on two counts. Firstly, he contended that the detenu
through his lawyer submitted his representation dated
23/6/2012 to the jail authority for forwarding it to the State
Government. The said representation was rejected by the
State Government and the rejection was communicated to
the detenu by the Under Secretary to the Government of
Maharashtra vide letter dated 24/7/2012. Counsel submitted
that thus there is an inordinate delay in considering the
representation of the detenu which has violated his right
3Page 4
under Article 22(5) of the Constitution of India. Counsel
submitted that there is delay at every stage, which indicates
the casual approach of the State Government. So far as
unexplained delay in transmitting the representation to the
State Government by the jail authority is concerned, he
relied on the judgments of this Court in Rattan Singh etc.
v. State of Punjab and others 1
, Aslam Ahmed Zahire
Ahmed Shaik v. Union of India and others2
 and B.
Alamelu v. State of Tamil Nadu and others3
. Counsel
submitted that in a long line of judgments, remissness or
casual approach shown by the authorities in considering the
representation of the detenu is severely criticized by this
Court because it breaches the mandate of Article 22(5) of
the Constitution of India. In such a situation, the order of
detention is liable to be set aside. In this connection, he
relied on judgments of this Court in Smt. Khatoon Begum
etc. etc. v. Union of India and others4
, Harish Pahwa
v. State of U.P. & Ors.5
, K.M. Abdulla Kunhi and B.L.
1
 (1981) 4 SCC 481
2
 (1989) 3 SCC 277
3
 (1995) 1 SCC 306
4
 (1981) 2 SCC 480
5
 (1981) 2 SCC 710
4Page 5
Abdul Khader v. Union of India and others6
,
Kundanbhai Dulabhai Shaikh etc. v. Distt.
Magistrate, Ahmedabad and others etc.7
, Venmathi
Selvam (Mrs.) v. State of Tamil Nadu and another8
,
Rajammal v. State of Tamil Nadu and another9
,
Harshala Santosh Patil v. State of Maharashtra and
others10
, Pebam Ningol Mikoi Devi v. State of
Manipur & Ors.11 and Ummu Sabeena v. State of
Kerala & Ors.12. Counsel submitted that the gravity of
offence is irrelevant in preventive detention matters.
Preventive detention is a serious inroad on the liberty of a
person. The procedural safeguards are the only protection
available to him and, therefore, their strict compliance is
necessary. In this connection, counsel relied on the
judgments of this Court in Smt. Icchu Devi Choraria v.
Union of India and others13
, Kamleshkumar Ishwardas
6
 (1991) 1 SCC 476
7
 (1996) 3 SCC 194
8
 1998 (5) SCC 510
9
 (1999) 1 SCC 417
10 (2006) 12 SCC 211
11 (2010) 9 SCC 618
12 (2011) 10 SCC 781
13 (1980) 4 SCC 531
5Page 6
Patel etc. etc. v. Union of India and others14
,
Kundanbhai Dulabhai Shaikh (supra) and Rekha v.
State of Tamil Nadu15
.
5. So far as the second point urged by the counsel viz.
that there is no independent consideration of the
representation by the detaining authority is concerned, we
must mention that this point was not raised in the petition
nor urged before the High Court. It is not even raised in the
present appeal. Ordinarily, we would not have allowed the
counsel to raise any point in this court, which was not urged
before the High Court. However, we are mindful of the
decision of this Court in Mohinuddin @ Moin Master v.
District Magistrate, Beed & Ors.16, where this Court has
held that the habeas corpus petition cannot be dismissed on
the ground of imperfect pleadings. We have, therefore,
allowed learned counsel to canvass this point. In support of
his submission that the detention order is liable to be set
aside if the detaining authority does not consider the
14 (1995) 4 SCC 51
15 (2011) 5 SCC 244
16 (1987) 4 SCC 58
6Page 7
detenu’s representation independently, counsel relied on the
judgments of this Court in K.M. Abdulla Kunhi (supra),
Kamleshkumar Ishwardas Patel, Venmathi Selvam
(supra) and Harshala Santosh Patil (supra). Counsel
submitted that in the circumstances, this Court should set
aside the impugned judgment and quash the order of
detention dated 16/04/2012.
6. We must make it clear that these were the only points
urged by learned counsel for the detenu in this Court. While
closing the hearing, we directed learned counsel to submit a
list of authorities on the above points urged by him. Learned
counsel for the State was to submit his reply to the above
points. We are surprised to note that in the note submitted
by learned counsel for the detenu, he has cited four
decisions of this Court under the caption “New Points”.
These points are not formulated. Thus, an opportunity has
been denied to learned counsel for the State to reply to
those new points. We are also at a loss to understand which
are those ‘New Points’. We are unhappy about this conduct.
7Page 8
But, in any case, as already noted, since we are dealing with
a preventive detention order, we would look into those four
decisions.
7. Mr. Arun R. Pednekar, learned counsel for the State of
Maharashtra, on the other hand, submitted that the
representation has been considered with utmost
promptitude and the explanation offered by the State is
reasonable and satisfactory. Counsel submitted that if the
delay is properly explained, there is no breach of the
constitutional imperative. If there is no indifference or
slackness shown by the State Government, the order of
detention cannot be set aside on the ground of delay in
considering the representation. In this connection, he relied
on judgments of the Constitution Bench in K.M. Abdulla
Kunhi (supra) and Sayed Abdul Ala v. Union of
India17
. Counsel submitted that in any event if this Court
comes to the conclusion that there is unexplained delay in
considering the representation of the detenu, the order or
detention cannot be set aside on that ground. Only the
17 (2007) 15 SCC 208
8Page 9
continued detention becomes invalid. In this connection, he
relied on judgments of this Court Union of India v.
Harish Kumar18 and Union of India v. Manish Bahal
alias Nishu19. So far as the submission that the
representation was not considered independently by the
detaining authority is concerned, counsel submitted that no
such ground was raised before the High Court nor was it
taken in the petition and, therefore, the detenu should not
be allowed to raise it at this stage. Counsel submitted that
in any case, the affidavit of the detaining authority clearly
establishes that there is independent consideration of the
representation by the detaining authority. The appeal,
therefore, deserves to be dismissed.
8. At the outset, we must note that on a query made by
this Court as to whether the detenu wants to press this
appeal in case the detenu is already released from
detention, counsel for the detenu submitted that he has
instructions to press the appeal because if the detention
18 (2008) 1 SCC 195
19 (2001) 6 SCC 36
9Page 10
order is set aside by this Court, the proceedings initiated
against the detenu under the provisions of the Smugglers
and Foreign Exchange Manipulators Act, 1976 will
automatically lapse. We, therefore, proceed to deal with his
submissions.
9. Learned counsel urged that the gravity of the offence is
irrelevant in a preventive detention matter. We entirely
agree with this submission and, hence, it is not necessary to
refer to the judgments cited by him on this point.
10. We shall first deal with the submission that the
detaining authority has not considered the detenu’s
representation independently. As we have already noted,
this point was not raised in the petition and admittedly, not
urged before the High Court. Whether a representation is
considered by the detaining authority independently or not is
for the detaining authority to say on affidavit. This fact is
within the exclusive personal knowledge of the detaining
authority. Had this point been raised in the writ petition, the
detaining authority would have dealt with it in her affidavit.
10Page 11
In the circumstances, if there is no categorical statement in
the affidavit of the detaining authority that she had
independently considered the representation, she cannot be
faulted for it. No inference can be drawn that the detaining
authority did not consider the representation independently.
In the affidavit, she has stated that the representation was
processed through the concerned Assistant, the Under
Secretary and the Deputy Secretary and then placed before
her. She rejected it on 24/7/2012. No objection can be
taken to this procedure unless there is any slackness shown
in processing the representation. Here the entire procedure
was completed within four days. We have seen the record.
The concerned Assistant, the Under Secretary and the
Deputy Secretary have merely put their signatures on the
file. They have expressed no opinion. Therefore, the
submission that the detaining authority has not considered
the representation independently and she could have been
swayed by the endorsements made by the subordinate
officers is without any basis. It is necessary to note here
that this point is not raised even in the present appeal. Had
11Page 12
it been raised, we would have called upon the detaining
authority to file affidavit in this Court. In view of the above,
we reject this submission.
11. We shall now deal with the judgments mentioned in the
Note under the caption “New Points”. So far as
Mohinuddin is concerned, we have already discussed this
judgment. It is, therefore, not necessary to refer to it again.
So far as Harish Pahwa is concerned, we find that there is
no new point discussed in this judgment. It also states that
the representation of the detenu must be dealt with
continuously until the final decision is taken and
communicated to the detenu. The second judgment is Baby
Devassy Chully @ Bobby v. Union of India & Ors.20
. In
this case, this Court has stated that if a person is in custody
and, there is no imminent possibility of his being released,
the rule is that power of preventive detention should not be
exercised. In this case, the detenu was released on bail on
20/8/2011 and the detention order was passed on
16/4/2012. Thus, when the detention order was passed the
20 2012 (10) SCALE 176
12Page 13
detenu was not in custody. Therefore, this judgment has no
application to the present case. The fourth judgment, which
is stated to contain a new point, is Saeed Zakir Hussain
Malik v. State of Maharashtra21. In that case, the
detention order was set aside on the ground of delay in
passing of the detention order and delay in execution of the
detention order. We have carefully perused the affidavit of
the detaining authority. The detaining authority has stated
what steps were taken and how the proposal submitted by
the sponsoring authority was processed till the detention
order was passed. The sponsoring authority has also filed
affidavit explaining steps taken by it till the proposal was
submitted. The High Court has rightly held that the said
explanation is satisfactory. In this connection, reliance
placed by the High Court on the judgment of this Court in
Rajendrakumar Natvarlal Shah v. State of Gujarat22 is
apt. We deem it appropriate to quote the relevant
paragraph.
21 (2012) 8 SCC 233
22 (1988) 3 SCC 153
13Page 14
“10. Viewed from this perspective, we wish to emphasise
and make it clear for the guidance of the different High
Courts that a distinction must be drawn between the delay
in making of an order of detention under a law relating to
preventive detention like the Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act, 1974
and the delay in complying with the procedural safeguards
of Article 22(5) of the Constitution. It has been laid down
by this Court in a series of decisions that the rule as to
unexplained delay in taking action is not inflexible. Quite
obviously, in cases of mere delay in making of an order of
detention under a law like the Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act, 1974
enacted for the purpose of dealing effectively with persons
engaged in smuggling and foreign exchange racketeering
who, owing to their large resources and influence have
been posing a serious threat to the economy and thereby
to the security of the nation, the courts should not merely
on account of delay in making of an order of detention
assume that such delay, if not satisfactorily explained,
must necessarily give rise to an inference that there was
no sufficient material for the subjective satisfaction of the
detaining authority or that such subjective satisfaction was
not genuinely reached. Taking of such a view would not be
warranted unless the court finds that the grounds are
“stale” or illusory or that there is no real nexus between
the grounds and the impugned order of detention. The
decisions to the contrary by the Delhi High Court in Anil
Kumar Bhasin v. Union of India & Ors., Crl. W.No.410/86
dated 2.2.1987, Bhupinder Singh v. Union of India &
Ors., Crl. W. No.375/86 dated 11.12.1986, Surinder Pal
Singh v. M.L. Wadhawan & Ors., Crl. W. No.444/86 dated
9.3.1987 and Ramesh Lal v. Delhi Administration, Crl. W.
No.43/84 dated 16.4.1984 and other cases taking the
same view do not lay down good law and are accordingly
overruled.”
In light of the above observations of this Court in our
opinion, the order of detention cannot be quashed on the
ground that there is delay in issuance of the detention order.
14Page 15
So far as delay in execution of the detention order is
concerned, it appears from the affidavit of the detaining
authority that the detenu is a resident of Mangalore in the
State of Karnataka. The affidavit of Ravindra Kumar Das,
Deputy Commissioner of Customs, COFEPOSA Cell, CSI
Airport, Mumbai, indicates that because the detenu was a
resident of Mangalore in the State of Karnataka, the order of
detention, grounds of detention and the accompanying
documents were forwarded to the State of Karnataka and
the order of detention, therefore, could be served on the
detenu only on 10/5/2012. In the peculiar facts of this case,
in our opinion, the High Court has rightly rejected this
submission. We endorse the High Court’s view on this point.
12. We shall now turn to the submission that there is delay
in disposal of the detenu’s representation by the State
Government. Several judgments have been cited by learned
counsel for the appellant. It is not necessary to refer to all of
them because they reiterate the same principles. We may
begin with the observations of this Court in Francis Coralie
15Page 16
Mullin v. W.C. Khambra23. The relevant portion of the
said judgment reads thus:
““The time imperative can never be absolute or
obsessive”. The occasional observations made by
this Court that each day’s delay in dealing with
the representation must be adequately explained
are meant to emphasise the expedition with which
the representation must be considered and not
that it is a magical formula, the slightest breach of
which must result in the release of the detenu.
Law deals with the facts of life. In law, as in life,
there are no invariable absolutes. Neither life nor
law can be reduced to mere but despotic
formulae.”
13. It is also necessary to refer to the observations of the
Constitution Bench of this Court in K.M. Abdulla Kunhi
which read thus:
“12. Clause (5) of Article 22 therefore, casts a
legal obligation on the government to consider the
representation as early as possible. It is a
constitutional mandate commanding the
concerned authority to whom the detenu submits
his representation to consider the representation
and dispose of the same as expeditiously as
possible. The words “as soon as may be”
occurring in clause (5) of Article 22 reflects the
concern of the Framers that the representation
should be expeditiously considered and disposed
of with a sense of urgency without an avoidable
23 AIR 1980 SC 849
16Page 17
delay. However, there can be no hard and fast rule
in this regard. It depends upon the facts and
circumstances of each case. There is no period
prescribed either under the Constitution or under
the concerned detention law, within which the
representation should be dealt with. The
requirement however, is that there should not be
supine indifference, slackness or callous attitude
in considering the representation. Any
unexplained delay in the disposal of
representation would be a breach of the
constitutional imperative and it would render the
continued detention impermissible and illegal.”
14. The principles which have been laid down by the
Constitution Bench and the other judgments which we have
referred to earlier can be summarized. Article 22(5) of the
Constitution casts a legal obligation on the Government to
consider the detenu’s representation as early as possible.
Though no time limit is prescribed for disposal of the
representation, the constitutional imperative is that it must
be disposed of as soon as possible. There should be no
supine indifference, slackness or callous attitude. Any
unexplained delay would be a breach of constitutional
imperative and it would render the continued detention of
the detenu illegal. That does not, however, mean that every
17Page 18
day’s delay in dealing with the representation of the detenu
has to be explained. The explanation offered must be
reasonable indicating that there was no slackness or
indifference. Though the delay itself is not fatal, the delay
which remains unexplained becomes unreasonable. The
court can certainly consider whether the delay was
occasioned due to permissible reasons or unavoidable
causes. It is not enough to say that the delay was very
short. Even longer delay can as well be explained. So the
test is not the duration or the range of delay, but how it is
explained by the authority concerned. If the inter
departmental consultative procedures are such that the
delay becomes inevitable, such procedures will contravene
the constitutional mandate. Any authority obliged to make
order of detention should adopt procedure calculated
towards expeditious consideration of the representation.
The representation must be taken up for consideration as
soon as such representation is received and dealt with
continuously (unless it is absolutely necessary to wait for
18Page 19
some assistance in connection with it) until a final decision is
taken and communicated to the detenu.
15. In light of above principles, it is now necessary to see
how the State Government has disposed of the detenu’s
representation in this case. In this connection, relevant
dates are available from the affidavit of Shivaji S. Patankar,
Deputy Secretary to the Government of Maharashtra, Home
Department (Special), affidavit of Medha Gadgil, Principal
Secretary (Appeals & Security), Government of Maharashtra,
Home Department, Mantralaya, Mumbai and affidavit of
Ravindra Kumar Das, Deputy Commissioner of Customs,
COFEPOSA Cell, CSI Airport, Mumbai. The High Court has
correctly located the important dates from the three
affidavits. In our opinion, the detaining authority and the
sponsoring authority have properly explained the time lag
between 6/7/2012 i.e. the date when the representation was
received by the detaining authority and the date of
communication of rejection to the detenu i.e. on 30/7/2012.
The explanation offered by them is reasonable and
19Page 20
acceptable. We find that the representation was taken up
for consideration as soon as it was received and dealt with
continuously until a final decision was taken and
communicated to the detenu. Undoubtedly, time was taken
to obtain para-wise comments from the sponsoring
authority. But, in Kamarunnissa v. Union of India24, this
Court has held that seeking views of the sponsoring
authority cannot be said to be a futile exercise. Thus, the
time lag between receipt of the representation till its
consideration and communication of rejection to the detenu
is properly explained.
16. We, however, find that the delay in transmitting the
representation to the detaining authority by the jail authority
is not explained. If the representation was received by the
Superintendent of Jail on 23/6/2012, he should have
immediately sent it to the detaining authority. The detaining
authority has received it on 6/7/2012. The time lag between
23/6/2012 and 6/7/2012 is not explained at all. It is only
stated by the detaining authority that 23/6/2012 and
24 (1991) 1 SCC 128
20Page 21
1/7/2012 were public holidays. There is no explanation for
the inaction on the part of the Superintendent of Jail, Nashik
Road Central Prison, Nashik. He has not cared to file any
affidavit explaining why the representation which was
received by him on 23/6/2012 was not sent to the detaining
authority immediately. In Pebam Ningol Mikoi Devi,
seven days’ unexplained delay in forwarding the
representation to the Central Government was held to be
fatal. In Aslam Ahmed Zahire Ahmed Shaik, the detenu
had handed over his representation to the Superintendent of
Jail on 16/6/1998 for onward transmission to the Central
Government. It was kept unattended for a period of seven
days and, as a result, it reached the Government 11 days’
after it was handed over to the Superintendent of Jail. The
Superintendent of Jail had not explained the delay. Relying
on Vijay Kumar v. State of J. & K.25, the continued
detention of the detenu was set aside. At the cost of
repetition, we must note that in this case, the
Superintendent of Jail has not filed any affidavit explaining
25 (1982) 2 SCC 43
21Page 22
delay. Therefore, this delay, in our opinion renders continued
detention of the detenu, illegal.
17. We would like to make it clear that the delay in disposal
of the representation of the detenu has vitiated only the
continued detention of the detenu and not the detention
order. In Meena Jayendra Thakur v. Union of India26
,
this Court was considering a case where the detenu was
detained under the provisions of the said Act. This Court
held that if the detaining authority on the basis of the
materials before him did arrive at his satisfaction with regard
to the necessity for passing an order of detention and the
order is passed thereafter, the same cannot be held to be
void because of a subsequent infraction of the detenu’s right
or of non-compliance with the procedure prescribed under
law because that does not get into the satisfaction of the
detaining authority while making an order of detention under
Section 3(1) of the said Act. It does not affect the validity of
the order of detention issued under Section 3(1) of the said
Act. Similar view has been taken by this Court in Sayed
26 (1999) 8 SCC 177
22Page 23
Abdul Ala. In that case, this Court was concerned with an
order of detention issued under the Prevention of Illicit
Traffic in Narcotic Drugs and Psychotropic Substances Act,
1988. It was argued that there was delay in considering the
representation of the detenu. Relying on Meena Jayendra
Thakur, this Court expressed that even if it is to be assumed
that there was some delay in considering the representation,
the same would not vitiate the original order of detention.
By reason of the delay, only further detention of the detenu
will become illegal. The delay in considering the
representation does not vitiate the order of detention itself.
In Harish Kumar, this Court was again considering an order
of detention issued under the provisions of the said Act. This
Court reiterated the same view and held that the detention
order passed at the satisfaction of the detaining authority on
the basis of the material available in no manner gets vitiated
for the reason of non-consideration of the representation
made by the detenu to the Central Government. It was held
that initial order of detention was not rendered void ab initio.
It may be noted that even the Constitution Bench of this
23Page 24
Court in K.M. Abdulla Kunhi, held that any unexplained
delay in disposal of representation of the detenu would be a
breach of the constitutional imperative and it would render
the continued detention impermissible and illegal and set
aside the continued detention of the detenu.
18. In view of this clear legal position, we hold that the
order of detention dated 16/4/2012 is valid. However, on
account of delay in disposal of the representation of the
detenu by the State Government, the continued detention of
the detenu is rendered illegal. We, therefore, direct that the
detenu – Abdul Nasar Adam Ismail be released from
detention forthwith if he is not already released from
detention and he is not required in any other case. The
appeal is disposed of accordingly. 
………………………….J.
[T.S. Thakur]
………………………….J.
(Ranjana Prakash Desai)
24Page 25
New Delhi
April 2, 2013
25