When sec. 304 part II applies instead of sec. 302 of I.P.C. = whether that itself would be sufficient to hold the accused guilty of the offence under Section 302 of the Indian Penal Code. The injuries found on the person of the deceased, as quoted in the preceding paragraph of the judgment, shows presence of only a small contusion of the size of 2 cm x 1 cm on the xiphisternum and the underlying bone was also found to be normal. It is well settled that intention is always lodged in the mind of the accused but, to gather the intention one of the relevant factors which the court looks into is the nature of injury inflicted on the deceased. In our opinion, from the nature of injuries found on the person of the deceased it cannot safely be said that the accused assaulted the deceased with intention to cause such injury so as to cause death. It appears to us that the accused persons were upset by the poor quality of food cooked by the deceased and, therefore, assaulted him. The nature of injury or the weapon used do not suggest that the accused assaulted him with the intention of causing death. However, we are of the opinion that the accused knew that the injury inflicted by them is likely to cause death. Hence, in our opinion, the accused shall be liable to be convicted for offence under Section 304 Part II of the Indian Penal Code. In the facts and circumstances of the case, we are of the opinion that sentence of 7 years’ rigorous imprisonment each and fine of Rs.50,000/- each shall meet the ends of justice. Each of the accused shall deposit the fine amount within three months failing which they shall suffer imprisonment for a further period of one year. Out of the fine amount the appellants shall be paid a sum of Rs.2 lakhs.

PUBLISHED IN http://judis.nic.in/supremecourt/imgs1.aspx?filename=40507
Page 1
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1624 OF 2008
Swarn Kaur …. Appellant
VERSUS
Gurmukh Singh and Ors. …. Respondents
J U D G M E N T
Fakkir Mohamed Ibrahim Kalifulla, J.
1. This appeal is directed against the judgment of the Division
Bench of the High Court of Himachal Pradesh, dated 18.06.2008,
in Crl.A.No.280 of 2005.
 The de facto complainant is the appellant. 
The respondents 1 to 5 were arrayed as accused 1 to
5 along with Gurnam Singh and Jagtar Singh, two other accused
in Sessions Trial No.13/7 of 2001/2002.
2. The case of the prosecution was that on 30.03.2002, a group
of pilgrims were led by the second accused to Shah Talai for
worshiping Baba Balak Nath. The deceased Jeet Singh, was taken
by the second accused along with the team for the purpose of
cooking. The pilgrims reached Shah Talai on 30.03.2002. On
reaching Shah Talai and after paying obeisance at the temple,
Criminal Appeal No.1624 of 2008 1 of 28Page 2
the pilgrims stayed at Dana Mandi in Shah Talai.
The accused
party appeared to have been not satisfied with the food prepared
by Jeet Singh and being annoyed by the said factor, it was
alleged that the accused beat the deceased Jeet Singh, after
tying his hands with Parna (a piece of cloth used both as headgear and towel by the villagers). The deceased was taken
towards a khud in a jeep-taxi belonging to P.W.6, Milap Chand.
The accused stated to have given fist blows and kicks to the
deceased and on the next day morning the body of Jeet Singh
was found in the bed of a rivulet known as ‘Saryali Khud’, near
Dana Mandi.
3. Some other pilgrims, not connected with the group led by the
second accused, after noticing the body of the deceased, stated
to have brought it out and placed it on the dry portion of the
rivulet bed and the information was passed on to P.W.1.
P.W.1 is
a village Up-pradhan of Gram Panchayat Naghiar. P.W.1 in turn
gave the information to the police station Thalai on 31.03.2002,
at about 10.45 a.m. by telephone informing that a dead body of
some Punjabi male was lying in the bank of Saryali Khud.
 Based
on the said information P.W.19 A.S.I., along with other police
officials reached the spot and prepared the inquest report.
  In the
Criminal Appeal No.1624 of 2008 2 of 28
meantime, A2, A4 and A5 along with A7 (acquitted accused)
appeared to have proceeded to the Shah Talai police station and
reported to P.W.17, M.H.C. about the missing of one of their
companion. 
P.W.17 directed the four of them to go to Saryali
Khud and find out 
whether, the dead body was that of their
missing companion. They went to the place where the body was
found by P.W.19 and after inspecting the body A2, A4, A5 and A7 told P.W.19 that he was not the person who was missing viz., Jeet Singh.
P.W.19 after conducting the inquest, sent the body for
post-mortem and the post-mortem was carried out by P.W.23, Dr.
A.K. Sarma. Exhibit P.W.23/A is the post-mortem report, wherein
the post-mortem doctor has noted two injuries.
The injuries were
:
“(a) Multiple contusions on both knee and below the
knee, reddish brownish scab formed, underline bones
are normal.
(b) Contusion over the xiphisternum 2 cm x 1 cm
reddish brown scab formed, under lying bone normal.”
P.W.23 gave the opinion in exhibit P.W.23/A that the cause
of death was the head injury leading to shock.
Criminal Appeal No.1624 of 2008 3 of 28
Page 4
4. Be that as it may, on the early morning of 01.04.2002, the
pilgrims led by the second accused, reached Ferozpur District of
Punjab.
The second accused met the appellant and informed her
that her husband had gone missing at the place of Baba Balak
Nath; that three of their team members have stayed back in
search of her husband and they are likely to get the information
in the evening by 6.00 p.m.
5. According to the appellant while no information about her
missing husband was forthcoming from the accused, on
04.04.2002, A2 and A5 again met her, as well as her son P.W.12,
Angrej Singh and negotiated for a settlement by way of payment
of a sum of Rs.1,00,000/- as compensation, by stating that her
husband Jeet Singh was no more. 
Thereafter, the appellant
accompanied by her brother-in-law Ajit Singh and Gurbanch
Singh, stated to have gone to Shah Talai police station on
14.04.2002 and lodged an F.I.R. (Ex.P.W.2/A) at the police station.
The appellant identified her husband from the photo of the dead
body shown to her, besides identifying the clothes and purse of
the deceased. 
Thereafter, the investigation commenced.
6. On 15.04.2002, A2, A6 and A5 were arrested at village Baltoha
and were remanded to police custody by the Court. 
On
Criminal Appeal No.1624 of 2008 4 of 28
17.04.2002, based on the disclosure statement of A2, the turban,
parna, bag, shirt, blanket and cooking utensils of the deceased,
Jeet Singh, were recovered from the house of A2 at village
Baltoha. 
The first and the third accused were arrested on
19.04.2002, and they stated to have identified the place of
occurrence. A4 and A7 were arrested on 06.05.2002, and based
on the admissible portion of the disclosure statement of A4, a
stone which was thrown below the bus stand of Deothsidh, was
recovered. 
The prosecution in toto examined 23 witnesses and in
the Section 313 questioning, the accused denied the case of the
prosecution and no defence evidence was let in on behalf of the
accused.
7. One relevant statement in the Section 313 questioning of A4
when it was put to him that the prosecution evidence against him
that all the pilgrims except Jeet Singh, returned to the native
place on 01.04.2002 and what he had to say about it, A4 in his
answer stated as under:
“It is correct. We all retuned except Jeet Singh, but he
was missing from Shah Talai and we have lodged report
with the police at P.S.Talai about missing of Jeet Singh.”
8. Again in Question No.20, it was put to A4, that in the
prosecution evidence against him it had come to light that on
Criminal Appeal No.1624 of 2008 5 of 28Page 6
01.04.2002, at about 9.00 A.M., accused Joginder Singh @ Kala,
went to the house of Smt.Swarn Kaur and told her that her
husband Jeet Singh had been missing from Shah Talai and that he
had retained three persons in Shah Talai to trace out Jeet Singh
and further told Smt.Swarn Kaur that Jeet Singh would return in
the evening, A4 answered as follows: 
“We all persons had went to the house of Smt. Swarn
Kaur and told that Jeet Singh was missing from Shah
Talai and that we told that we have lodged a report
about his missing with the police.” 
9. With the above evidence on record and the stand of the
accused, the Trial Court found accused 1 to 5 guilty of the
charges falling under Section 302 r/w Section 34 and Section 201
r/w Section 34 of I.P.C. 
The Trial Court, however acquitted A6 and A7 of all the charges. 
Ultimately, after finding accused 1 to 5 guilty of the above charges, the Trial Court imposed the
punishment of imprisonment for life for the offence under Section
302 r/w Section 34, besides imposing a fine of Rs.10,000/- each
and in default of payment of fine, further sentence of
imprisonment for six months each. For the offence proved under
Section 201, all the five accused were sentenced to rigorous
imprisonment for one year, apart from a fine of Rs.2,000/- each
Criminal Appeal No.1624 of 2008 6 of 28
and in default, imprisonment for one month each. The sentence
were directed to run concurrently.
10. All the five accused preferred an appeal before the High
Court of Himachal Pradesh in Crl.A.No.280 of 2005 and the High Court having reversed the judgment of the Sessions Court and set aside the conviction and sentence imposed on them and
there being no further appeal at the instance of the State, 
the de
facto complainant has come forward with this appeal.
11. We heard Mr. Vineet Dhanda, learned counsel for the
appellant and Mr. Neeraj Kumar Jain learned senior counsel for
the respondent accused.
12. The learned counsel for the appellant contended that the
deceased was taken by the second accused along with the other
accused and the pilgrims for cooking purposes, on 27.03.2002
and that on 31.03.2002, the dead body of the deceased was seen
by P.W.1, the village Up-pradhan, who preferred a complaint to
the police. According to the learned counsel, the accused 1 to 5
were last seen along with the deceased when they travelled in
the jeep-taxi belonging to P.W.6; that in the evidence of P.W.6 it
has come to light that the accused hit the deceased by fist, apart
Criminal Appeal No.1624 of 2008 7 of 28Page 8
from giving him indiscriminating kicks; that his hands were tied
with a parna and that they got themselves dropped at Saryali
Khud, near Dana Mandi. The dead body of Jeet Singh was found
in the bed of the rivulet Saryali Khud and that the accused who
stated to have reported about the missing of Jeet Singh to Shah
Talai Police on 31.03.2002, were directed to see the dead body
near the rivulet, and though the accused went there and saw the
dead body, for reasons best known to them, did not identify the
same, though it was the dead body of Jeet Singh.
13. The learned counsel contended that it has come out in
evidence that on 01.04.2002, after returning from the pilgrimage,
A2 and A4 went to the home of the appellant and informed that
the deceased went missing at Shah Talai and that a report has
been lodged with the police. The learned counsel contended that
the said fact was admitted by A4 in the Section 313 questioning
and therefore, it was the responsibility of the accused to have
satisfactorily explained as to how the deceased was missing. The
learned counsel further contended that though on behalf of the
accused it was claimed that they preferred a complaint with the
police on 31.03.2002, nothing was brought on record to show
that any serious complaint was lodged with the police to trace
the deceased. Per contra, when they stated to have gone to the
Criminal Appeal No.1624 of 2008 8 of 28Page 9
police station of Shah Talai on 31.03.2002, P.W.17 advised them
to go and see whether the dead body lying at the rivulet was the
body of deceased and that the accused who had gone there and
met P.W.19 deliberately did not identify the body of the deceased
Jeet Singh. The learned counsel submitted that their presence at
the rivulet for the purpose of identification was duly noted as per
the statements recorded by P.W.19, which were marked as
Ex.P.W.19/G,H & J. The learned counsel, therefore, contended
that the chain of circumstances leading to the involvement of the
accused in the killing of the accused, were duly brought out in
evidence by the prosecution and that the conviction and
sentence imposed by the learned Sessions Judge was perfectly
justified. The learned counsel contended that the interference
with the same by the High Court, therefore, was liable to be set
aside.
14. As against the above submissions, Mr. Neeraj Kumar Jain
learned senior counsel appearing for the respondent accused,
submitted that there were very many missing links in the chain of
circumstances and that if really the accused persons had gone to
the place where the dead body of Jeet Singh was lying as claimed
by the prosecution, there was no reason why the said fact was
not recorded in the inquest report and their signatures were not
Criminal Appeal No.1624 of 2008 9 of 28
obtained in that report. According to the learned senior counsel,
at the police station when they went to report about the missing
of Jeet Singh, their signatures were obtained in blank papers,
which were fabricated to the advantage of the prosecution for
foisting a false case against the accused Nos.1 to 5.
15. The learned senior counsel also contended that there was
long delay in the filing of the F.I.R. and that by itself would vitiate
the case of the prosecution. The alleged killing of the deceased
was on 31.03.2002. The appellant lodged the F.I.R. with Shah
Talai Police Station only on 14.04.2002. The learned senior
counsel contended that there was no valid explanation for the
enormous delay in the filing of the complaint by the appellant.
16. The learned senior counsel by referring to the injuries noted
on the body of the deceased contended that there were only
multiple contusions and if really the deceased was beaten by
several persons, there would have been apparent swelling on the
body, which was not present and, therefore, the story of the
prosecution cannot be believed.
17. The learned senior counsel, therefore, contended that the
various circumstances, which were listed out by the High Court
Criminal Appeal No.1624 of 2008 10 of 28Page 11
and the lack of proper evidence to support the said
circumstances, weighed with the High Court in interfering with
the conviction and sentence imposed by the learned Sessions
Judge and the same does not call for interference.
18. The learned counsel appearing for the appellant relied upon
the decisions in Brahm Swaroop and another vs. State of
Uttar Pradesh - (2011) 6 SCC 288 and Podda Narayana and
others vs. State of Andhra Pradesh - AIR 1975 SC 1252, as
well as Gurnam Kaur vs. Bakshish Singh and others - AIR
1981 SC 631.
19. Having heard the learned counsel for the appellant, as well
as the respondent accused and having perused the judgment of
the Trial Court, as well as that of the High Court,
we find that this
was a case based on circumstantial evidence. 
Having noted the
facts and the evidence led before the Trial Court, the following
facts are not in dispute viz.,
(a) There was a pilgrimage tour organised at the instance of
the second accused, which consisted of about 100
pilgrims including other accused viz., A1, A3, A4 and A5,
as well as A6 and A7.
Criminal Appeal No.1624 of 2008 11 of 28Page 12
(b) The deceased Jeet Singh was taken by the second
accused along with the pilgrims for the purpose of
cooking.
(c) The evidence of P.W.6 was to the effect that the
deceased was carried in his jeep taxi bearing Registration
No.PB-10D-0507 on 31.03.2002 and that his hands were
tied with a parna.
(d) According to P.W.6, while they were travelling, the
deceased was mercilessly beaten by all the accused
persons.
(e) It is the stand of the respondent accused that the
deceased was missing on and from 31.03.2002 and that
they reported the same to the Shah Talai Police Station.
(f) While according to P.Ws.17 and 19 when the accused
persons went and reported to P.W.17 about the missing
of the deceased Jeet Singh, they were directed to report
to P.W.19 to find out whether the dead body lying at the
rivulet was the body of the deceased. According to the
accused they were not asked to go to the said riverbed
for identification. On the other hand, it was claimed
that their signatures were obtained in blank papers,
which was fabricated later on by the prosecution.
Criminal Appeal No.1624 of 2008 12 of 28
(g) Admittedly on 01.04.2002, A2 and A4 went to the house
of the deceased Jeet Singh and informed the appellant
about the missing of the deceased from the pilgrims
group.
(h) According to P.W.17 and P.W.19 after the appellant filed
the F.I.R. on 14.04.2002, the photograph of the dead
body of Jeet Singh was shown to her, which was duly
identified and that she also identified the clothes worn by
the deceased, as well as the purse belonging to the
deceased.
(i) According to the appellant, after informing her about the
missing of the deceased by A2 and A5, on 01.04.2002
and subsequently on 04.04.2002, they came and
informed her that her husband was no more and that
they were prepared to pay a sum of Rs.1,00,000/- by way
of compensation and that she should not go to the police
and that her son P.W.12 was also present at that time.
(j) The postmortem report Ex.P.W.23/A revealed that there
were multiple contusions on the knee and below the knee
of the deceased, apart from contusions in the head of the
deceased, which according to the postmortem doctor
P.W.23 was fatal to the deceased.
Criminal Appeal No.1624 of 2008 13 of 28Page 14
(k) The evidences of P.W.1, P.W.2, P.W.6 and P.W.12, read
together discloses that the deceased went along with the
accused who were part of the pilgrims group of about
100 persons on 27.03.2002 and that while all others
returned back on 31.03.2002, the deceased alone did not
return and for which there was no valid explanation
offered at the instance of the accused, except stating
that they made a report at Shah Talai police station
about the missing of the deceased.
20. By referring to the above factors, when we note the
circumstances, which were put against the accused by the
prosecution, we find that the following circumstances have to be
noted. In our considered opinion, the Hon’ble High Court failed to
analyze all the circumstances which were existing, while only a
few of them were noted by the High Court while examining the
correctness of the judgment of the Trial Court.
The
circumstances which were existing as against the accused can be
stated as under:
(i) At the instance of A2, the deceased Jeet Singh was
engaged as a cook to come along with the pilgrims to
Shah Talai to worship Baba Balak Nath on 27.03.2002.
Criminal Appeal No.1624 of 2008 14 of 28Page 15
(ii) P.W.6 in whose jeep taxi the accused stated to have
travelled along with the deceased Jeet Singh, was totally
an independent witness, who had no axe to grind against
the accused.
(iii) The version of P.W.6, read along with the postmortem
report Ex.P.W.23/A and oral evidence of P.W.23, the
postmortem doctor, it has come to light that the
deceased Jeet Singh, suffered injuries viz., multiple
contusions below his knee and also severe head injury.
(iv) The factum of ‘missing of the deceased’ Jeet Singh, was
admittedly said to have been reported by the accused
themselves, first to the police station at Shah Talai and
then on 01.04.2002, to the appellant.
(v) There was no document produced on behalf of the
accused to show that any earnest effort was taken by
the accused to trace the deceased after he was
reported to be missing from 31.03.2002. 
According to
P.W.17 and P.W.19, the accused were advised to go and
see a dead body lying at the rivulet bank and that after
checking the body in the presence of P.W.1 and P.W.19,
the accused stated that the said dead body was not
that of the deceased.
Criminal Appeal No.1624 of 2008 15 of 28Page 16
(vi) As far as the identification of the dead body of the
deceased, the same was established by the
identification made by P.W.2, the appellant, by looking
to the photograph of the deceased and also the clothes
worn by him, as well as the purse belonged to the
deceased. The said statement of the appellant as
regards the identification based on the photographs
shown to her, as well as the belongings of the deceased
was not disputed at the instance of the accused.
(vii) The recovery of the stone at the instance of A4, which
was alleged to have been used in the offence was also
duly established.
21. Keeping the above circumstances in mind, 
when we test the
submissions made on behalf of the appellant, as well as that of
the respondent accused in so far as the circumstances are
concerned, it has come in evidence through P.W.2 and P.W.12
that A2 and A4 informed the appellant after 01.04.2002 i.e., on
04.04.2002 that the deceased was reported to be missing earlier
and was stated to be dead and according to P.W.2 and P.W.12
the said accused offered to pay a sum of Rs.1,00,000/- by way of
compensation, so that the appellant did not report the matter to
the police.
Criminal Appeal No.1624 of 2008 16 of 28
22. According to P.W.2, as the incident occurred in the State of
Himachal Pradesh and she was living in a village in the State of
Punjab, it took some time for her to arrange for her trip to
Himachal Pradesh to lodge the complaint and in that process she
could go to the Police Station at Shah Talai only on 14.04.2002,
where she identified the photographs of the dead body of the
deceased along with his other belongings.
23. According to P.W.19, based on Exhibits P.W.19/G, J and I, the
statements of the accused that the dead body found in the rivulet
was not that of the deceased Jeet Singh. 
When P.W.19 was
confronted as to why the statement of the accused about the
identification of the dead body was not noted in the inquest
report, P.W.19 came forward with an answer that since the
accused made it clear that the dead body was not that of the
deceased Jeet Singh, he felt that there was no necessity to make
a note of it in the inquest report.
24. Keeping the above circumstances which exist in the case on
hand, when we consider the submissions of the learned counsel,
as far as the first circumstance is concerned, there is no dispute
about the engagement of the services of the deceased Jeet Singh
as a cook to go along with the pilgrimage tour organised by the
Criminal Appeal No.1624 of 2008 17 of 28
Page 18
second accused on 27.03.2002. Therefore, the said circumstance
was fully established.
25. As far as the second circumstance viz., that the deceased
Jeet Singh was found in the company of the accused when they
were travelling together in the jeep taxi bearing Reg.No.PB-10D-
0507 is concerned, the evidence of P.W.6 was unassailable. It
has been found by the Trial Court that the evidence of P.W.6 was
categoric in that respect and that nothing contra was elicited
from him to take a different view.
26. When once that factum of the travel of the deceased along
with the accused is found to be true, then the next circumstance
to be examined is the alleged violent assault made by the
accused on the body of the deceased as stated by P.W.6, when
they were travelling together in his jeep taxi. 
When once the
travel undertaken by the accused along with the deceased in the
jeep taxi belonging to P.W.6 was found to be true, the point for
consideration is as to why the version of P.W.6, as regards the
brutal assault and the injuries inflicted upon the deceased at the
instance of the accused, should not be believed. 
In the course of
the cross examination of P.W.6, it was not brought forth as to
why he was enemically disposed of towards them or as to why
Criminal Appeal No.1624 of 2008 18 of 28Page 19
the P.W.6 was harbouring any other grudge against the accused
in order to unnecessarily implicate the accused to the alleged
assault on the deceased. 
The vehicle was a jeep, therefore, when
five of them were sitting together along with the deceased in the
jeep and when a brutal assault was inflicted upon the deceased,
there is every possibility of P.W.6 noticing the assault inflicted
upon the deceased. If that be so, his version that the deceased
was beaten repeatedly and mercilessly below the knees and
other parts of the body as stated by him, have to be accepted in
toto, without any scope for contradiction.
27. When once the said factum of the assault cannot be doubted,
the further evidence of P.W.23 viz., the postmortem doctor, read
along with the postmortem certificate Ex.P.W.23/A, sufficiently
demonstrate the nature of injuries sustained by the deceased viz.
the multiple contusions below the knee, as well as serious injuries
on the head of the deceased. 
Therefore, the said circumstance of
the accused causing the injury on the body of the deceased and
the ultimate death of the deceased due to the said injury is a
circumstance, which has been proved without any iota of doubt.
28. When we come to the other circumstance viz., that the
accused themselves reported to the Shah Talai police about the
Criminal Appeal No.1624 of 2008 19 of 28Page 20
missing of the accused, the said circumstance has to be
necessarily considered along with the following circumstances
described by P.W.17 and P.W.19, viz., their proceeding to the
rivulet where the dead body was found by P.W.1, which was
reported to the very same police station and that P.W.19 had
gone to the said spot for making necessary enquiries.
29. The question for consideration is
whether the accused had
gone to report the incident to the police and what were the
subsequent events after the said reporting.
In this context, the
evidence of P.W.17, to some extent support the version of the
accused about their reporting to the police about the missing of
the deceased on 31.03.2002.
Though the accused took the stand
that after reporting at Shah Talai police station, they did not go to
the rivulet as claimed by the prosecution, according to the
prosecution, P.W.17 directed them to go to the rivulet and find
out as to whether or not the dead body lying there was the dead
body of the deceased. 
In so far as the report of the missing of
the deceased is concerned, since there were no two contradicting
views, we do not wish to dilate further on that issue. 
30. When we examined the disputed question about the visiting
of the accused to the place viz., the rivulet where the dead body
Criminal Appeal No.1624 of 2008 20 of 28Page 21
was found, the prosecution relied upon the evidence of P.W.17
and P.W.19 and the statements of the accused in Ex.P.W.19/G,J
and K.
31. On behalf of the accused, it was contended that their
signatures were obtained in blank papers, which were
subsequently fabricated by the police to suit their convenience.
As far as the said statement is concerned, except the ipse dixit
there was no other evidence to support the said stand. It is quite
possible that when the accused reported to the police station
about the missing of the deceased, as the S.H.O., P.W.17 would
have directed them to go to the spot where the dead body was
reported to be lying in order to ensure whether the said body
either belonged to the deceased or not. There is no reason to
discard the evidence of P.W.17, as well as that of P.W.19 on that
score, simply because they were official witnesses.
The inquest
report viz., Ex.P.W.19/A, postmortem report Ex.P.W.23/A, the
evidence of P.W.1 and P.W.23, as well as P.W.2, sufficiently
establish that the dead body, which was found at the rivulet was
the body of the deceased Jeet Singh. In the said background it
will have to be held that the accused did visit the rivulet and
failed to identify the body of the deceased as stated by P.W.19.
Criminal Appeal No.1624 of 2008 21 of 28Page 22
Except mere denial, nothing was brought in evidence to
disbelieve the said view of P.W.19.
32. In such circumstances, it is not known as to why the accused
should have merely stated that the body was not that of the
deceased Jeet Singh. The statements in Ex.P.W.19/G, J and K
were rightly relied upon by the Trial Court to affirm the position
that the accused came forward with the stand that the body
found on the rivulet was not that of the deceased. 
33. Therefore, a conspectus consideration of all the above proved
facts, only disclosed that the accused deliberately failed to
identify the body of the deceased, when the same was shown to
them at the spot by P.W.19, pursuant to the direction of P.W.17.
Such a deliberate stand of the accused in not identifying the dead
body of the deceased only goes to show that the accused wanted
to suppress the truth, for reasons best known to them.
Therefore, the last of the above circumstances viz., factum of
missing of the deceased Jeet Singh, as from 31.03.2002, were
proved by the reporting of the same by the accused themselves
to the police and also to P.W.2 on 01.04.2002.
When once the
said circumstance of the missing of the deceased Jeet Singh was
established beyond reasonable doubt, the conduct of the accused
Criminal Appeal No.1624 of 2008 22 of 28
in their deliberate failure to identify the deceased Jeet Singh,
when his body was shown to them at the rivulet by P.W.19, was a
serious circumstance, which has to be considered and held
against the accused.
34. With that when we come to the next question as to the
failure of the accused in not having come forward with any
acceptable explanation for not taking any steps by them to trace
the missing of the deceased, except stating that they reported
him missing to the police is yet another circumstance creating
serious doubts about the credibility in their stand. 
When
admittedly, the deceased was engaged at the instance of A2 for
the purpose of cooking food for the pilgrims and subsequently he
was found missing when the tour programme was on going, we
fail to understand as to how by taking a mere stand that such
missing of the person was simply reported to the police without
any further action taken in that respect is one other circumstance
to be considered against the accused.
When the deceased was
engaged and was taken along with the pilgrims, which was led by
the second accused, it was the responsibility of the second
accused to have shown what were the earnest efforts taken by
him to trace the whereabouts of the deceased.
Unfortunately,
except the mere statement that along with A3 and A4, he went to
Criminal Appeal No.1624 of 2008 23 of 28Page 24
Shah Talai police station and reported about the missing of the
deceased, nothing else was shown as to what were the further
steps taken by him to trace the deceased.
 Further, the evidence
of P.W.2 that the accused offered to compensate the missing of
the deceased was yet another circumstance to be taken into
account while considering the guilt of the accused.
35. Therefore, the said conduct of the accused would only go to
show that the said circumstance is also one other relevant
circumstance, which has to be considered along with the other
circumstances, which were all found proved and adverse against
the accused.
36. With that when we come to the last of the circumstance viz.,
the version of P.W.2 and P.W.12 that after reporting about the
missing of the deceased to them by A2 and A3 on 01.04.2002, on
04.04.2002, they came and reported that the deceased was no
more and that they were prepared to pay a sum of Rs.1,00,000/-
by way of compensation, was last of the circumstance which if
accepted to be true would be a clinching piece of circumstance,
that would complete the other chain of circumstances to fasten
the alleged offence against the accused persons.
The Trial Court
which had the advantage of watching the demonour of P.W.2 and
Criminal Appeal No.1624 of 2008 24 of 28Page 25
P.W.12, has noted that no serious answer was elicited from the
mouth of the said witnesses, as regards the alleged offer of
compensation made by A2 and A4.
There is no valid reason to
interfere with the said conclusion of the Trial Court in the absence
of any other legally acceptable counter evidence to doubt the
version of P.W.2 and P.W.12.
Therefore, if A2 and A4, had made
an attempt and offered the compensation of Rs.1,00,000/- after
informing P.W.2 about the death of the deceased, the only
conclusion which could be drawn based on the other chain of
circumstances, which we have found to have been established
without any scope of contradiction, was the culpability of the
accused in having eliminated the deceased by inflicting the
injuries upon him, as narrated by P.W.6 and as found to have
existed by the expert witness viz., the postmortem doctor P.W.23
in Ex.P.W.23/A.
37. We are convinced that every one of the circumstances which
were demonstrated to have been proved, sufficiently established
the guilt of the accused and consequently, the conclusion of the
Trial Court in having found the accused guilty was perfectly
justified and the interference with the same by the High Court
without sufficient reasoning was therefore, liable to be set aside.
Criminal Appeal No.1624 of 2008 25 of 28Page 26
38. Now, we address as to the nature of the offence committed
by the accused. PW-23, Dr. A.K. Sharma, who conducted the postmortem examination, has found the cause of death to be the
head injury. 
But, the question is 
whether that itself would be
sufficient to hold the accused guilty of the offence under Section
302 of the Indian Penal Code. 
The injuries found on the person of the deceased, as quoted in the preceding paragraph of the judgment, shows presence of only a small contusion of the size of 2 cm x 1 cm on the xiphisternum and the underlying bone was also found to be normal.
39. It is well settled that intention is always lodged in the mind
of the accused but, to gather the intention one of the relevant
factors which the court looks into is the nature of injury inflicted
on the deceased. 
In our opinion, from the nature of injuries found
on the person of the deceased it cannot safely be said that the
accused assaulted the deceased with intention to cause such
injury so as to cause death. It appears to us that the accused
persons were upset by the poor quality of food cooked by the
deceased and, therefore, assaulted him. 
The nature of injury or
the weapon used do not suggest that the accused assaulted him
with the intention of causing death. However, we are of the
Criminal Appeal No.1624 of 2008 26 of 28
opinion that the accused knew that the injury inflicted by them is
likely to cause death. Hence, in our opinion, the accused shall be
liable to be convicted for offence under Section 304 Part II of the
Indian Penal Code. 
In the facts and circumstances of the case, we
are of the opinion that sentence of 7 years’ rigorous
imprisonment each and fine of Rs.50,000/- each shall meet the
ends of justice. Each of the accused shall deposit the fine amount
within three months failing which they shall suffer imprisonment
for a further period of one year. Out of the fine amount the
appellants shall be paid a sum of Rs.2 lakhs. 
40. The said accused 1 to 5 are directed to surrender forthwith
before the Additional Sessions Judge, Ghumarwin, District
Bilaspur, Himachal Pradesh, who shall hand them over to the
concerned police for serving the remaining sentence. In the
result, the appeal is allowed, the judgment and order of acquittal
passed by the High Court is set aside and the accused are
convicted and sentenced in the manner indicated above.
………….……….…………………………..J.
[Chandramauli Kr. Prasad]
Criminal Appeal No.1624 of 2008 27 of 28Page 28
...……….…….………………………………J.
 [Fakkir Mohamed Ibrahim
Kalifulla]
New Delhi;
July 03, 2013.
Criminal Appeal No.1624 of 2008 28 of 28

Maharashtra Housing and Area Development Act,=Chapter VIII-A, which was introduced into the the Maharashtra Housing and Area Development Act, 1976, hereinafter referred to as "the 1976 Act", in 1986, pertains to the acquisition of "cessed properties" for co-operative societies of occupiers. In view of the questions raised in the writ petitions, the matter was initially referred to a Bench of 7-Judges, but, thereafter, by order dated 20.02.2002, the matters have been referred to a Bench of Nine-Judges and are still pending decision. Since no final decision seems to be in the offing, the writ petitioners have filed IA No. 3 of 2012, for interim reliefs.= Whether MHADA has any obligation to provide similar accommodation to others in respect of the 30% surplus land, is a controversy which we need not go into and will surely be decided, whenever the Nine-Judge Bench sits to take up these matters. But for the purposes of this case, we regret that in spite of the inordinate delay in the working of the provisions of Chapter VIII-A of the 1976 Act, which was intended for the benefit of a certain section of tenants and occupants of cessed buildings, we are unable to grant the relief prayed for, as the same goes against the very grain of the provisions of Chapter VIII-A of the 1976 Act.

published in http://judis.nic.in/supremecourt/imgs1.aspx?filename=40501
Page 1
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
I.A. NO. 3 OF 2012
IN
WRIT PETITION (C) NO. 342 OF 1999
KAMLESH C. SHAH & ORS. ...PETITIONERS
 Vs.
STATE OF MAHARASHTRA AND ORS. ...RESPONDENTS
J U D G M E N T
ALTAMAS KABIR, CJI.
1. Chapter VIII-A, which was introduced into the
the Maharashtra Housing and Area Development Act,
Page 2
2
1976, hereinafter referred to as "the 1976 Act", in
1986, pertains to the acquisition of "cessed
properties" for co-operative societies of
occupiers. 
Soon after its introduction, its
validity was challenged in several cases, including
the present writ petition.
The present writ
petition was tagged with W.P. No. 934 of 1992,
another case pending in this Court on the same
issue.
In view of the questions raised in the writ
petitions, the matter was initially referred to a
Bench of 7-Judges, but, thereafter, by order dated
20.02.2002, the matters have been referred to a
Bench of Nine-Judges and are still pending
decision.
2. Since no final decision seems to be in the
offing, the writ petitioners have filed IA No. 3 of
2012, for interim reliefs.
Page 3
3
3. The subject matter of the present petition is a
property known as "Chhotalal Niwas" situated at
Laburnam Road, Gamdevi, Mumbai - 400007, comprising
a plot of land bearing Survey No. 7A/492, Malabar
Cumbala Hill Division, Mumbai. Treating the said
property as a "cessed property", within the meaning
of Section 103A of the 1976 Act, the same was
acquired by the Maharashtra Housing and Area
Development Authority (MHADA), as per Section 103B
of Chapter VIII-A of the 1976 Act.
4. The apparent reason for the introduction of
Chapter VIII-A into the 1976 Act appears to be the
refusal of the owners of the buildings to effect
repairs thereto on account of the freezing of rents
from 1st September, 1940. The return which the
landlord could reasonably expect from time to time
having been frozen, a stage was reached when where
rents were no longer sufficient to cover even the
taxes payable for the said properties. As a
Page 4
4
result, the landlords stopped effecting repairs to
the tenanted properties which resulted in rapid
deterioration of the buildings. 
Realizing the
gravity of the matter, the Legislature enacted "the
Building Repairs and Reconstruction Board Act,
1969", which enabled levy on buildings in Greater
Bombay as the Legislature felt that from the
recovery of the cess in addition to the
contribution of substantial amounts to be made by
the State Government and the Bombay Municipal
Corporation, it might be possible for the Board
constituted under the Act to carry out structural
repairs to the old buildings to make them safe for
habitation. 
The Legislature also felt that in case
structural repairs did not improve the condition of
the building, then the Board could undertake
reconstruction of the building by pulling down the
dilapidated structure and raising a new structure
thereupon.
Page 5
5
5. On 26th February, 1986, the Governor of
Maharashtra issued Ordinance No. 1 of 1986 to amend
the 1976 Act with effect from 26th February, 1986.
The Statement of Objects for enactment of the
amendment indicates that there are 19,642 cessed
old and dilapidated buildings in the island city of
Bombay and, out of these, 16,502 buildings were
constructed prior to 1st September, 1940, and the
majority of the said buildings are about 80 to 100
years old. To make things worse, the freezing of
the rents from 1st September, 1940, made it quite
impossible for the owners to look after or maintain
the buildings, which is one of the reasons for the
introduction of Chapter VIII-A in the 1976 Act. 
6. Section 103A of the 1976 Act, which was
introduced in 1986 as part of Chapter VIII-A, inter
alia, provides that the said Chapter would come
into force on and from the commencement of the
Maharashtra Housing and Area Development (Second
Page 6
6
Amendment) Act, 1986 and would apply to all cessed
buildings, which had been erected before the 1st of
September, 1940, and were classified as belonging
to Category 'A' under Sub-section (1) of Section
84.
7. Section 103B, which contains the raison d'etre,
for the introduction of Chapter VIII-A into the
1976 Act, inter alia, provides for acquisition of
cessed property for co-operative societies of
occupiers. 
The scheme envisaged in the said
Section is that notwithstanding anything contained
in any of the provisions of Chapter VIII or any
other law for the time being in force or in any
agreement, contracts, judgment, decree or order of
any court or tribunal to the contrary, a cooperative society formed or proposed to be formed,
under the provisions of the Maharashtra Cooperative Societies Act, 1960, by not less than 70%
of the occupiers in a cessed building, may, by
written application, request the Board to move the
State Government to acquire the land together with
the existing building thereupon and where the owner
of the building did not own the land underneath or
appurtenant to such building, but held the same as
a lessee or licensee, then to acquire the right or
interest of such owner or person in or over such
building or land or both as lessee or licensee
together with the existing building, in the
interest of its better preservation or
reconstruction of a new building in lieu of the old
one. Sub-section (2) of Section 103B provides that
on receipt of the application made under Subsection (1), the Board shall, after due
verification and scrutiny, approve the proposal if
it considers that it is in the interest of better
preservation of the building or to be necessary for
reconstruction of a new building and shall direct
the co-operative society, whether registered or
proposed, to deposit with the Board, within the
periods specified by it in that behalf, 30% of the
approximate amount that would be required to be
paid to the owner in that behalf. Sub-section (4)
of Section 103B provides that if, on receipt of an
acquisition proposal under Sub-section (3), the
State Government is satisfied about the
reasonableness of the proposal, it may approve the
same and communicate its approval to the Board. On
receipt of the government approval, the Board under
Sub-section (5) was required to forward the
acquisition proposal to the Land Acquisition
Officer for taking further proceedings in the
matter. 
8. An important element of Section 103B is Subsection (5A), which provides that when acquisition
proceedings have been initiated under Sub-section
(5) and a notification under Sub-section (5) of
Section 93 has been published, the Collector would
take and hand over the possession of the acquired
property to the Board in accordance with the
provisions of Sub-section (6) of Section 93. Subsection (6) provides that after the land is vested
absolutely in the Board on behalf of the Authority,
free from all encumbrances, and the amount to be
paid to the owner is determined, the Board shall
require the society to get itself registered, if it
is not registered, till then and to deposit the
remainder of the amount to be paid to the owner
with the Land Acquisition Officer. The Board is
required simultaneously to pass on the amount
deposited by the co-operative society to the Land
Acquisition Officer, who shall thereupon make
payment of the amount for acquisition or deposit
the same in the Court, as provided in Section 46.
Sub-section (7) provides that, subject to the
provisions of Sub-section (6), the Authority shall
convey the land acquired under this Section to the
10
co-operative society of the occupiers thereof with
its right, title and interest therein and execute,
without undue delay, the necessary documents in
that behalf.
9. As is clear from the above, the scheme
introduced by Chapter VIII-A of the 1976 Act was
intended to protect tenants who were compelled to
reside in buildings which had been constructed
prior to 1940, and had become dilapidated as no
repairs were effected thereto. The landlords were
not keen to repair the buildings as the rents were
very low and often the taxes payable for the
property were higher than the rents collected from
the tenants. The scheme provided for the formation
of cooperative societies by tenants of such
buildings, who were required to deposit 30% of the
compensation payable to the owner, whereupon the
lands would stand acquired and would vest in the
Mumbai Building Repair and Reconstruction Board forPage 11
11
the limited purpose of ensuring that after
acquisition, the balance 70% would be deposited by
the tenants, consequent whereupon, MHADA under
Section 103B(7) was bound to convey the land to the
cooperative society for construction of the
building.
10. Appearing for the writ petitioners, Mr. K.K.
Venugopal, learned Senior Advocate, submitted that
the very fact that MHADA was required to convey the
land to the cooperative society for constructing
the building, establishes beyond doubt that the
vesting in the Board amounted to holding the
property in trust for and on behalf of the tenants
forming the cooperative society, who were the
beneficiaries of the said scheme.
11. Mr. Venugopal urged that since the issue was
pending before a Nine-Judge Bench and it was
unlikely that the matter would be heard in the near
Page 12
12
future, the tenants and the owner of the building
entered into an Agreement by which they themselves
agreed to develop the property, instead of waiting
for the decision of the Nine-Judge Bench. The
essence of the understandings arrived at between
the landlord and the tenants was that the tenants
would withdraw themselves from the acquisition and
instead enter into a Development Agreement with
landlord to reconstruct the building. Mr. Venugopal
urged that should such a course of action be
accepted, then there would be no further need for
the proceeding under Section 103B to be continued
and upon the property being returned to the owner,
the tenants could have the benefit of the offer
made by the new builder. This would enable the
tenants to purchase their own flats and the
landlord to also get sufficient consideration so
that the purpose of the scheme would stand fully
satisfied. Furthermore, the Trust would cease to
13
exist as the purpose of acquisition would also
cease to exist. Mr. Venugopal urged that the Court
may declare the acquisition of the property to be
no longer necessary and relevant for the purposes
of Chapter VIIIA and the relationship of the owner
and the tenant would continue as before. Mr.
Venugopal also submitted that since possession has
continued with the owner and the tenants and, at no
point of time, had such possession been handed over
to MHADA, could it be said that the premises in
question had vested with MHADA. Mr. Venugopal
contended that if the object of the rehabilitation
scheme was to be kept in mind, the objective taken
on behalf of MHADA that the property had vested in
it by virtue of the Notification published at the
request of the tenants, was highly technical and
was required to be discarded, as the lands were, in
fact, being held in trust for the tenants as the
beneficiaries thereof. Page 14
14
12. The prayer made on behalf of the Petitioners in
I.A. was opposed, on behalf of the State of
Maharashtra and its authorities, as being
mischievous and was nothing but an attempt to
circumvent the challenge thrown to Chapter VIII-A,
which was pending before this Court not only in
other matters, but in the instant writ petition
also. It was urged by Mr. Sanjay V. Kharde,
learned Advocate appearing for the Respondent Nos.
1 and 5, that the question to be considered in the
context of this interlocutory application is
whether the parties can contract out of the statute
when they have no locus standi or title in respect
of the suit property.
It was urged that stay
prayed for earlier had been refused by this Court
and Chapter VIII-A, inserted by the Maharashtra Act
(21 of 1986), in the 1976 Act, continues to be
valid and operative. It was submitted that the
provisions make it very clear that once the suit
Page 15
15
property stood vested in MHADA, the same could be
utilized only for the purpose of the tenants/ cooperative societies and nobody else. It was urged
that the relief sought for by the Petitioners in
the present application could not be granted since
there is a complete bar on such kind of proceedings
after vesting, in view of Section 103C(2) of the
1976 Act. Mr. Kharde urged that symbolic
possession of the property had already been taken
and the introduction of a third party into the
proceedings was with the knowledge that the
assignee would approach MHADA for releasing the
property for the purpose of development.
13. Mr. Kharde reiterated that once vesting had
taken effect under Section 93(5), read with Section
103B(5A), (6) and (7) of the 1976 Act, and the same
having been upheld up to this Court, the same could
not be released to the owners of the land and would
have to be utilized for a purpose similar for which
16
it had been acquired. Mr. Kharde urged that the
I.A. filed on behalf of the Petitioners is liable
to be dismissed.
14. Mr. Ashok H. Desai, learned Senior Advocate,
who appeared for MHADA and the Mumbai Housing
Repairs and Reconstruction Board, submitted that
the relief prayed for in the instant I.A. was
wholly misconceived since the challenge to the
notification dated 20.04.1995 issued by the
Respondent No. 4 under Section 93(5) of the 1976
Act, thereby vesting the land and building
absolutely in MHADA free from all encumbrances, had
been repelled up to this Court. It was urged that
the vesting of the property in MHADA having been
upheld up to this Court, this application seeking
release of the property from acquisition has to be
dismissed and the Petitioners have to await the
decision to the challenge of the constitutional
validity of Chapter VIII-A. Mr. Desai submittedPage 17
17
that when the matter involving a constitutional
challenge to Chapter VIII-A of the 1976 Act was
pending consideration before a Bench of NineJudges, the present application could not be
decided by any Bench of this Court of a strength of
less than Nine-Judges.
15. Mr. Desai submitted that the scope of these
pending matters relate to the interpretation of the
expression "vesting" of the property with MHADA
under the scheme of the Act. Mr. Desai also urged
that the property having been acquired for the
purposes of Section 103B of the 1976 Act, MHADA was
also saddled with an obligation to utilize 30% of
the acquired land for similar objects. Mr. Desai
submitted that the land could only be used for the
benefit of the tenants, if they had formed a cooperative society and registered the same, but not
for the purpose of development by a third party,
which was completely alien to the provisions of the
1976 Act. Mr. Desai submitted that I.A. No. 3 was
wholly misconceived and was liable to be rejected.
16. Mr. Mukul Rohatgi, learned Senior Advocate,
appearing for the Chief Promoter of the UNAT Co-op.
Housing Society, Hashmukh B. Gandhi, contended that
since the object of the 1976 Act was to
rehabilitate those tenants who were living in
dilapidated structures, and the end object of the
scheme of arrangement arrived at by the landlord
with the promoter was for the same purpose, the
same should be accepted and implemented for the
benefit of the tenants.
17. Countering the submissions made by Mr. Ashok
Desai that once the lands had vested in MHADA under
Section 103B of the 1976 Act, the same could only
be utilised for the purposes of construction/
reconstruction as intended under the Act, Mr.
Rohatgi submitted that the acquisition in thePage 19
19
instant case was specifically for the purpose of
rehabilitation of the members of the proposed Punit
Cooperative Housing Society, on whose application
the acquisition proceedings had been started. Mr.
Rohatgi submitted that the land so acquired for the
aforesaid Cooperative Society could not be utilised
for any other society/tenants and in the event the
tenants chose not to continue with the scheme of
rehabilitation by resorting to the provisions of
the 1976 Act, MHADA could not obstruct the release
of the land, as otherwise the tenants would be
rendered homeless and they would be deprived of
their residences, which they enjoyed in the
premises before the acquisition proceedings were
mooted. Mr. Rohatgi urged that the entire logic of
the 1976 Act was to rehabilitate the tenants of the
building which had become dilapidated on account of
non-repair thereof by the landlords and the scheme
envisaged under Chapter VIIIA was tenant-specificPage 20
20
and any decision to deprive the tenants, either by
taking recourse to the scheme or remaining outside
the scheme, would be contrary to the spirit and
object of the Act.
18. Since the writ petition is to be heard by a
Bench of nine Judges, along with other similar
matters, and there is little likelihood of the
matter being taken up for final decision in the
near future, we have given our serious thoughts to
the problem which has been spelt out in the present
Interlocutory Application. On the one hand, it is
at the request made by a proposed Cooperative
Society of the tenants of the building that
acquisition proceedings were commenced by the Board
under Section 103B of the 1976 Act on 30th October,
1986, on the other, the purpose of the acquisition
has not fructified even after 26 years. If, as
suggested by Mr. Desai and Mr. Kharde, the tenants
have to wait till a decision is rendered by thePage 21
21
Nine-Judge Bench, the entire object with which
Chapter VIIIA was introduced in the 1976 Act, would
be rendered completely nugatory. Maybe a situation,
such as this, was never contemplated by those who
wanted to frame a scheme to rehabilitate tenants
who were victims of a situation where they had to
reside in unhygenic and maybe dangerous conditions
because of lack of repairs on account of the low
rents payable by the tenants which had been frozen
from 1st September, 1940, and made it virtually
impossible for the landlords to maintain the
properties when, at times, the municipal taxes were
higher than the rents collected; but the Courts
have to interpret the law as it is.
19. As indicated hereinbefore, Section 103A was
introduced by way of Chapter VIII-A in the 1976
Act, by Maharashtra Act 21 of 1986, when
realisation dawned on the administration that many
persons who had been occupying buildings either asPage 22
22
tenants or otherwise from before 1st September,
1940, were faced with a peculiar dilemma in which
on account of the low rents paid by them, which had
been frozen, the landlords were unwilling to effect
any repairs to the old structures. Section 103A,
whereby Chapter VIII-A was made applicable to all
"cessed buildings", reads as follows:
"103A. Application of Chapter VIIIA to certain buildings.
This Chapter shall come into force
on and from the commencement of the
Maharashtra Housing and Area
Development (Second Amendment) Act,
1986, and shall apply to all the
cessed buildings which are erected
before the 1st day of September
1940 and are classified as
belonging to Category A under
subsection (1) of section 84:
Provided that, nothing in this
Chapter shall apply to any cessed
building belonging to Category A
if, on the date of commencement of
the Maharashtra Housing and Area
Development (Second Amendment)Act,
1986, out of the total number of
occupiers of such building, fifty
per cent, or more occupiers are
23
using the tenements or premises in
their possession for commercial or
non-residential purpose.
Explanation — For the purposes of
this section, any such building
where a floor or any part of a
building is constructed
subsequently and such floor or part
is not separable, shall be deemed
to be a building belonging to
Category A."
20. "Cessed buildings" are buildings in which
repairs had not been effected after 1st September,
1940, and were in danger of collapse, but continued
to be under the occupation of tenants. In fact,
19,642 cessed and dilapidated buildings have been
identified in the island city of Bombay. It is
Section 103B, which deals with the procedure for
acquisition of cessed property for cooperative
societies of occupiers, pursuant to proposals for
acquisition submitted under Section 92 of the 1976
Act. In fact, in order to facilitate the repair or
reconstruction of the building in question, SectionPage 24
24
94 makes provision for temporary and alternative
accommodation to be provided to the affected
occupiers whose property is acquired. Since much
of the case of the parties depend on Section 103B
of the 1976 Act, the same, in its entirety, is
extracted hereinbelow:
"103B. Acquisition of cessed
property for co-operative societies
of occupiers.
(1) Notwithstanding anything
contained in any of the provisions
of Chapter VIII or any other law
for the time being in force or in
any agreement, contracts judgement,
decree or order of any Court or
Tribunal to the contrary, a cooperative society formed or
proposed to be formed under the
provisions of the Maharashtra Cooperative Societies Act, 1960, by
not less than seventy per cent of
the occupiers in a cessed building
may by written application request
the Board to move the State
Government to acquire the land
together with the existing building
thereon or where the owner of the
building does not own the land
underneath or appurtenant to such
building but holds it as a lessee
25
or licensee, or where any person
holds the building or the land
underneath or appurtenant to such
building or both under a lease or
licence, then to acquire the right
or interest of such owner or person
in or over such building or land or
both as lessee or licensee together
with the existing building thereon
(hereinafter in this Chapter
referred to as "the land") in the
interest of its better preservation
or for reconstruction of a new
building in lieu of the old one and
intimate their willingness to pay
the amount of such acquisition as
may be determined under the
provisions of this Chapter and to
carry out the necessary structural
and other repairs or, wherever
necessary, to reconstruct a new
building, as the case may be, at
their own cost.
Explanation I — In this section the
expression "seventy per cent, of
the occupiers' means the seventy
per cent of the occupiers on the
date of commencement of the
Maharashtra Housing and Area
Development (Second Amendment) Act,
1986, and include their successorsin interest or new tenants inducted
in place of such occupiers, but
does not include the owner or the
occupiers inducted by virtue of
creation of any additional
26
tenancies or licences by the owner
after the date of commencement of
the aforesaid Act.
Explanation II — For the purposes
of this sub-section, any suit or
proceeding for recovery or
possession of tenement or premises
or part thereof, initiated against
the occupier in any court or before
any authority whether, before or
after making an application under
this sub-section, shall not affect
the right of such occupier to join
or to continue as a member of the
co-operative society of the
occupiers of the building, but his
membership of such cooperative
society shall be subject to the
final decision in such suit or
proceeding:
Provided that, if, in the meantime
before the final decision in such
suit or proceeding, the acquisition
proceedings under this Chapter are
completed and the land is conveyed
to the Co-operative society of the
occupiers under sub-section (7),
the claim for possession made in
such suit or proceeding, at any
stage where it is pending on the
date of execution of such
conveyance, shall abate.
(2) On receipt of the application
made under sub-section (1), thePage 27
27
Board shall after due verification
and scrutiny, approve the proposal
if it considers that it is in the
interest of better preservation of
the building or to be necessary for
reconstruction of a new building
and shall direct the co-operative
society, whether registered or
proposed, to deposit with the Board
within the period specified by it
in that behalf thirty per cent of
the approximate amount that would
be redirected to be paid to the
owner if the land is acquired and
give intimation in that behalf to
the owner.
(2A) Where after the date of
application made under subsection(1),—
(a) any owner has undertaken the
work of any repairs to the
Building; or
(b) the percentage of the occupiers
who had initially agreed to become
members of the co-operative society
formed under subsection (1) is
reduced to less than seventy per
cent of the occupiers as a result
of some members opting out, or due
to the number of additional
tenancies or licences created in
the building thereafter or due to
any other reason whatsoever,
28
then the power of Board to approve
the proposal shall not be affected,
and notwithstanding anything
contained in sub-section (1), the
Board shall approve the proposal
and direct the co-operative society
to deposit the approximate amount
as required under sub-section (2).
(3) On receipt of the amount of
deposit as provided in sub-section
(2), the Board shall submit to the
State Government a proposal to
acquire the land for the aforesaid
purpose.
(4) If on receipt of an acquisition
proposal under sub-section (3), the
State Government is satisfied about
the reasonableness of the proposal,
it may approve the proposal and
communicate its approval to the
Board.
(5) On receipt of the Government
approval, the Board shall forward
acquisition proposal to Land
Acquisition Officer for initiating
and acquisition proceedings in
accordance with the provisions- of
sub-sections (3), (4) and (5) of
section 93 and section 96 of this
Act :
Provided that, where any
proceedings for acquisition of land
are so initiated the notice to bePage 29
29
published under sub-section (3) of
section 93 in respect thereof need
not contain any statement regarding
provision of any alternative
accommodation to occupiers in such
land :
Provided further that, where the
proposal involves acquisition of
the right or interest of the lessee
or licensee in or over the building
or land as referred to in
subsection (1) , then such building
or land on its transfer by the
Authority to the co-operative
society under sub-section (7) shall
be held by the co-operative society
on lease or licence, as the case
may be,subject, however, to the
following conditions, namely:—
(i) where there is a subsisting
lease or licence, on the same terms
and conditions on which the lessee
or licensee held it, and
(ii) where the lease or licence has
been determined or where the lessee
or licensee has committed breach of
the terms and conditions of the
lease or licence, as the case may
be, on the fresh terms and
conditions, particularly in regard
to the period of lease or licence
and rent as may be stipulated by
the owner of the land.
30
(5A) Where acquisition proceedings
have been initiated as provided in
sub-section (5) and a notification
under sub-section (5) of section 93
is published, the Collector shall
take and hand over possession of
the land to the Board in accordance
with the provisions of sub-section
(6) of section 93.
(6) After the land is vested
absolutely in the Board on behalf
of the Authority free from all
encumbrances and the amount to be
paid to the owner is determined,
the Board shall require the society
to get itself registered if it is
not registered till then and to
deposit the remainder of the amount
to be paid to the owner with the
Land Acquisition Officer. The Board
shall simultaneously pass on the
amount deposited by the cooperative society with it to the
Land Acquisition officer. The Land
Acquisition Officer shall thereupon
make the payment of the amount for
acquisition or deposit the same in
the court as provided in section
46.
(7) Subject to the provisions of
sub-section (6), the Authority
shall convey the land acquired
under this section to the cooperative society of the occupiers
thereof with its right, title and
interest therein and execute
31
without undue delay the necessary
documents in that behalf."
21. Sub-section (1) of Section 103B begins with a
non-obstante clause to the effect that
notwithstanding anything contained in any of the
provisions of Chapter VIII or any other law for the
time being in force or in any agreement, contract,
judgment, decree or order of any Court or Tribunal
to the contrary, a co-operative society formed or
proposed to be formed under the provisions of the
Maharashtra Co-operative Societies Act, 1960, by
not less than 70% of the occupiers in a cessed
building may, by written application, request the
Board to move the State Government to acquire the
land together with the existing building thereon or
where the owner of the building does not own the
land, but holds it as a lessee or licensee, then to
acquire the right or interest of such owner or
person in or over such building or land or both as
Page 32
32
lessee or licensee together with the existing
building thereon.
The latter part of Section 103B
and more particularly Sub-section (5A), is relevant
for our purpose and provides that
where acquisition
proceedings have been initiated as provided in Subsection (5) and
a notification under Sub-section
(5) of Section 93 is published, the Collector shall
take and hand over the possession of the land to
the Board in accordance with the provisions of Subsection (6) of Section 93.
It is at this stage
that the land vests absolutely in the Board on
behalf of the Authority, free from all
encumbrances.
At this stage, the Board shall also
require the Society to get itself registered, if it
is not registered till then, and to deposit the
remainder of the amount to be paid to the owner
with the Land Acquisition Officer.
 It is only,
thereafter, under Sub-section (7), that the
Authority is to convey the land acquired under this
33
Section to the co-operative society of the
occupiers thereon, with its right, title and
interest therein and execute, without undue delay,
the necessary documents in that behalf.
22. As submitted by Mr. Desai and Mr. Kharde, the
tenants had already vacated the building in
question in favour of the promoter. 
The million
dollar question is whether they were entitled to do
so, once Section 103B of the 1976 Act had already
come into operation and symbolic possession of the
property had been taken by MHADA, through the
Board, under Sub-section (5A) thereof. Sub-section
(7) of Section 103B provides for the conveyance of
the land acquired under Section 103B to the cooperative society of the occupiers together with
its right, title and interest therein, and for
MHADA to execute, without undue delay, the
necessary documents in that behalf, which
presupposes that MHADA had already acquired title
34
to the property. Had the title not vested in
MHADA, it could not have been vested with the right
to convey the same to the co-operative society.
The scheme envisaged in Chapter VIII-A, and in
Section 92 of the 1976 Act comes into play, upon an
application being made by a registered co-operative
society or a proposed co-operative society to
undertake the restoration of the building. 
23. In the instant case, 
except for an application
having been made under Section 92 and 
steps having
been taken thereafter under Section 103B, 
nothing
further has happened.
  But by operation of law, the
land has come to be vested in MHADA. 
The parties
to the agreement, which includes the promoter, were
fully aware of this situation since in the
agreement itself it is indicated that the tenants
would withdraw from the acquisition and would apply
to MHADA to release the property from acquisition
so that the agreement arrived at could be given
Page 35
35
effect to instantly. 
Whether MHADA has any
obligation to provide similar accommodation to
others in respect of the 30% surplus land, is a
controversy which we need not go into and will
surely be decided, whenever the Nine-Judge Bench
sits to take up these matters. 
But for the
purposes of this case, we regret that in spite of
the inordinate delay in the working of the
provisions of Chapter VIII-A of the 1976 Act, which
was intended for the benefit of a certain section
of tenants and occupants of cessed buildings, we
are unable to grant the relief prayed for, as the
same goes against the very grain of the provisions
of Chapter VIII-A of the 1976 Act. 
Accordingly, we
have no other option, but to dismiss the I.A.,
without going into further details, which will have
to be settled by the Nine-Judge Bench.
Page 36
36
24. Having regard to the nature of the facts of the
case, the parties shall bear their own costs.
...................CJI.
(ALTAMAS KABIR)
.....................J.
(VIKRAMAJIT SEN)
.....................J.
(A.K. SIKRI)
New Delhi
Dated: July 03, 2013.