the Rajasthan Wakf Act, 1995 (hereinafter to be referred as the ‘Act’), having regard to the provisions of Section 85 of the Act.= whether Civil Court lacks the jurisdiction to entertain the suit filed by the respondent herein or the subject matter of the suit lies within the exclusive jurisdiction of the Tribunal constituted under the Rajasthan Wakf Act, 1995 (hereinafter to be referred as the ‘Act’), having regard to the provisions of Section 85 of the Act.= The suit is for cancellation of sale deed, rent and for possession as well as rendition of accounts and for removal of trustees. However, pleading in the suit are not filed before us and, therefore, exact nature of relief claimed as well as averments made in the plaint or written statements are not known to us. We are making these remarks for the reason that some of the reliefs claimed in the suit appeared to be falling within the exclusive jurisdiction of the Tribunal whereas for other reliefs civil suit would be competent. Going by the ratio of Ramesh Gobind Ram (supra), suit for possession and rent is to be tried by the civil court. However, suit pertaining to removal of trustees and rendition of accounts would fall within the domain of the Tribunal. In so far as relief of cancellation of sale deed is concerned this is to be tried by the civil court for the reason that it is not covered by Section 6 or 7 of the Act whereby any jurisdiction is conferred upon the Tribunal to decided such an issue. Moreover, relief of possession, which can be given by the civil court, depends upon the question as to whether the sale deed is valid or not. Thus, the issue of sale deed and possession and inextricably mixed with each other. We have made these observations to clarify the legal position. In so far as present case is concerned, since the suit was filed much before the Act came into force, going by the dicta laid down in Sardar Khan case, it is the civil court where the suit was filed will continue to have the jurisdiction over the issue and civil court would be competent to decide the same. 24. We, thus, allow the appeal and set aside the impugned judgment of the High Court thereby dismissing the application filed by the respondent under Order 7 Rule 10 of the C.P.C. with the direction to the civil court to decide the suit.

                         published in    http://judis.nic.in/supremecourt/imgst.aspx?filename=40740                       
  [REPORTABLE]

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 7902 OF 2013
      (Arising out of Special Leave Petition (Civil) No. 13215 of 2006)


      Bhanwar Lal & Anr.                                ………Appellants

                                     vs.




      Rajasthan Board of Muslim Wakf & Ors.          ……….Respondents




                               J U D G M E N T

      A.K. SIKRI, J.

      1.    Leave granted.

      2.    The question that needs determination in the present  appeal  is
      as to
whether Civil Court lacks the jurisdiction to entertain the suit
      filed by the respondent herein or the subject matter of the suit  lies
      within the exclusive jurisdiction of the  Tribunal  constituted  under
      the Rajasthan Wakf Act,  1995  (hereinafter  to  be  referred  as  the
      ‘Act’), having regard to the provisions of  Section  85  of  the  Act.
      Though the suit was filed by the Respondent in the Civil Court, it  is
      on the application of the Respondent itself stating that the suit  was
      not maintainable in view of the bar contained in  Section  85  of  the
      Act, the Civil Court returned the plaint accepting the said contention
      of the Respondent. The Petitioners herein, who were the Defendants  in
      the suit, challenged the order of the Civil Court by  filing  Revision
      Petition under Section 115 of the Code of Civil Procedure in the  High
      Court of Judicature for  Rajasthan,  at  Jodhpur.  The  said  Revision
      Petition is also dismissed by the  impugned  orders.  It  is  how  the
      present proceedings arise, questioning the validity of the  orders  of
      the High Court.

      3.    The facts around  which  the  controversy  is  involved  do  not
      require big canvass and are re-capitulated herein below:

           The  property  in  dispute  which  is  the  subject  matter   of
      litigation, is situated  in  the  town  of  Nagaur  in  the  State  of
      Rajasthan  and  is  in  the  possession  of  the  petitioners  herein.


















                                      Respondent  No.  1  is  the  Rajasthan
      Board of Muslim  Wakf  and  Respondent  No.  2  is  the  Muslim  Board
      Committee. Both the Respondents claimed that the subject  property  is
      the Wakf Property. These Respondents, filed the Civil Suit in the year
      1980 for possession of the said property as well as for  rendition  of
      accounts against the petitioners herein  claiming  it  to  be  a  wakf
      property. On coming to know,  after  filing  of  the  suit,  that  one
      trustee Mr. Naimuddin S/o Abdul Bari had  sold  the  property  to  the
      petitioners vide sale deed dated 28.2.1983, the Respondent Nos. 1 &  2
      amended the plaint by adding the relief of declaration to  the  effect
      that the said sale deed dated 28.2.1983 was invalid.

      4.    The Petitioners filed the written statement  and  contested  the
      suit  raising  number  of  defences.    The  Trial  Court,  i.e.   the
      Additional District Judge, framed the following issues on 4.8.1984:

           (i)   Whether Haveli and the land of compound including the land
                 underneath the measurements of which  have  been  given  in
                 paragraph-3 of the plain, are Wakf Property?

           (ii)  Whether the sale deed  executed  by  Defendant  No.  1  in
                 favour of Defendant No. 3 regarding the Haveli and the land
                 of the compound dated 22.06.1960 for Rs. 400/-  is  invalid
                 because the property is Wakf Property?

           (iii) Whether the sale deeds in favour of Defendants No. 4 and 5
                 are invalid with respect to Haveli  and  the  land  of  the
                 compound because the property is Wakf Property?

           (iv)  Whether the sale deed executed by defendant  Naimuddin  in
                 favour of defendant No. 5 on 28.2.1983 is invalid.

           (v)   Whether the plaintiffs are entitled to  file  the  present
                 suit?

           (vi)  Whether the suit is barred by limitation?

           (vii) Whether Court Fee insufficient?

           (viii)      Relief.




      5.    The suit, thereafter, went on trial. All the parties  led  their
      evidence, though it took considerable time. When the matter was  ready
      for final hearing, on 2.12.2000, the Respondent Nos. 1 & 2  filed  the
      application under Section 85 of the Act raising  the  contention  that
      the suit in question could not be tried by  the  Civil  Court  as  the
      jurisdiction of the Civil Court was barred. Prayer was made  that  the
      plaint filed by them may  be  returned  to  be  presented  before  the
      Tribunal constituted under the Act, which alone had  the  jurisdiction
      to try the suit.

      6.    Their application was allowed by the learned Additional District
      Judge vide orders dated 4.1.2001 holding that the question whether the
      property in question was Wakf Property or not, could be  decided  only
      by the Tribunal and Section 85 of  the  Act  specifically  barred  the
      jurisdiction of Civil Court. In the Revision  Petition  filed  by  the
      petitioners challenging the validity of the orders of  the  Additional
      District Judge, the High Court has concurred with this  view,  stating
      that the position in law in this behalf was settled by the judgment of
      the Rajasthan High  Court  in  Syed  Inamul  Haq  Shah  vs.  State  of
      Rajasthan and Anr.; AIR 2001  Raj  19.  In  the  short  order  of  two
      paragraphs referring to the aforesaid judgment, the Revision  Petition
      has been dismissed.

      7.    Learned Counsel for the  appellant,  at  the  outset,  drew  our
      attention to the judgment of this Court whereby the said  judgment  of
      the High Court has been overruled.  The  judgment  in  this  Court  is
      reported as 2007 (10) SCC 727 titled Sardar  Khan  and  Os.  vs.  Syed
      Nazmul Hasan (Seth) and Ors. He, thus submitted that  since  the  very
      foundation of the  impugned  judgment  stood  demolished  in  view  of
      overruling of the said judgment by this Court, the order of  the  High
      Court needs to be set aside.

      8.    To this  extent  submission  of  the  learned  Counsel  for  the
      appellant is correct. As pointed above, without any discussion of  its
      own, the High Court has simply relied upon  its  earlier  judgment  in
      Syed  Inamul  Haq  (supra)  and  dismissed  the   Revision   Petition.
      Therefore, while setting aside  the  impugned  order,  we  could  have
      remitted the case back to  the  High  Court  to  decide  the  Revision
      Petition afresh.   However,  learned  Counsel  for  both  the  parties
      submitted that the question of jurisdiction be decided by  this  Court
      so that this aspect attains finality, more so when the lis is  pending
      for quite some time.   Conceding to this prayer of both  the  parties,
      we heard the matter on  the  aforesaid  question  in  detail.  We  now
      propose to answer this question of jurisdiction, as formulated in  the
      beginning.

      9.     We have already mentioned the subject matter of the suit  filed
      by the Respondent Nos. 1 & 2 herein, which is predicated on  the  plea
      that the suit property is Wakf Property. On this basis it  is  pleaded
      in the suit that the sale deed in favour of the  Petitioners  is  null
      and void as Mr. Naimuddin who purportedly  executed  sale  deed  dated
      22.9.1983 in favour of the Petitioner No. 2 had no authority to do so.
      As a consequence,  the  Respondent  Nos.  1  &  2  maintain  that  the
      petitioners  are  in  unauthorized   possession   of   the   Property.
      Possession of the said property alongwith rendition  of  accounts  are
      the other reliefs claims in the suit.

      10.   Rajasthan Wakf Act, 1995, governs the  Wakf  properties  in  the
      said State. The Tribunal is constituted under this Act  and  is  inter
      alia empowered to determine suits regarding wakfs as laid  down  under
      Section 7 of the Act. Therefore,  we  would  like  to  reproduce  here
      Section 7 of the said Act.




           7.    Power of Tribunal to determine disputes regarding wakfs –

           (1)   If, after the  commencement  of  this  Act,  any  question
                 arises, whether a particular  property  specified  as  wakf
                 property in a list of wakfs is wakf  property  or  not,  or
                 whether a wakf specified in such list is a Shia wakf  or  a
                 Sunni wakf, the Board or the mutawalli of the wakf, or  any
                 person interested therein, may apply to the Tribunal having
                 jurisdiction in relation to such property, for the decision
                 of the question and the decision of  the  Tribunal  thereon
                 shall be final:

           Provided that-

                 (a)   in the case of the list of wakfs relating to any part
                       of the State and published after the commencement  of
                       this Act no such  application  shall  be  entertained
                       after the  expiry  of  one  year  from  the  date  of
                       publication of the list of wakfs.

                 (b)   in the case of the list of wakfs relating to any part
                       of the State and  published  at  any  time  within  a
                       period  of  one  year   immediately   preceding   the
                       commencement of this Act, such an application may  be
                       entertained by Tribunal within the period of one year
                       from such commencement:




           Provided further that where any such question has been heard and
           finally decided by a civil court in  a  suit  instituted  before
           such commencement, the Tribunal shall not re-open such question.

           (2)   Except where the Tribunal has no jurisdiction by reason of
                 the provision of sub-section (5), no proceeding under  this
                 Section in respect of any  wakf  shall  be  stayed  by  any
                 court, tribunal or other authority by reason  only  of  the
                 pendency of  any  suit,  application  or  appeal  or  other
                 proceeding arising  out  of  any  such  suit,  application,
                 appeal or other proceeding.

           (3)   The Chief Executive Officer shall not be mad  a  party  to
                 any application under sub-section (1).

           (4)   The list of wakfs and where any such list is  modified  in
                 pursuance of a decision of the Tribunal  under  sub-section
                 (1), the list as so modified, shall be final.

           (5)   The Tribunal shall not have jurisdiction to determine  any
                 matter  which  is  the  subject  matter  of  any  suit   or
                 proceeding instituted or commenced in a civil  court  under
                 sub-section 91) of section 6, before  the  commencement  of
                 this Act or which is the subject  matter of any appeal from
                 the decree passed before such commencement in any such suit
                 or proceeding or of any application for revision or  review
                 arising out of such suit, proceeding or appeal, as the case
                 may be”.




           Section 85 of the Act barred the jurisdiction of the Civil Court
      to decide such issues. Section 85 reads as under:

            “85.       Bar of Jurisdiction of Civil Courts. –  No  suit  or
                 other legal proceeding shall lie  in  any  Civil  Court  in
                 respect of any dispute, question or other  matter  relating
                 to any  wakf,  wakf  property  or  other  matter  which  is
                 required by or  under  this  Act  to  be  determined  by  a
                 Tribunal”.




      11.   As per Sub-section (1) and Section 7 of the Act, if any question
      arises, whether a particular property specified as wakf property in  a
      list of wakfs is wakf property or not, it is the Tribunal which has to
      decide such a question and the decision of the tribunal is made final.
      When such a question is covered under sub-section (1)  of  Section  7,
      then obviously the jurisdiction of the Civil Court  stands   concluded
      to decide such a question in view of specific bar contained in Section
      85.  It would be pertinent to mention that, as per sub-section (5)  of
      Section 7, if a suit or proceeding is already pending in a Civil Court
      before the commencement of the Act in question, then such  proceedings
      before the Civil Court would continue and the Tribunal would not  have
      any jurisdiction.

      12.   On a conjoint  reading  of  Section  7  and  Section  85,  legal
      position is summed up as under:

              i)  In  respect  of  the  questions/  disputes  mentioned   in
                 sub-section (1) of Section 7, exclusive jurisdiction  vests
                 with the tribunal, having jurisdiction in relation to  such
                 property.

             ii) Decision of the tribunal thereon is made final.

            iii) The jurisdiction of the Civil Court is barred in respect of
                 any dispute/ question or other matter relating to any wakf,
                 wakf property for other matter, which  is  required  by  or
                 under this Act, to be determined by a tribunal,

             iv) There is however an exception made under Section 7(5) viz.,
                 those matters which are already pending  before  the  Civil
                 Court, even if the subject  matter  is  covered  under  sub
                 section (1)  of  section  6,  the  Civil  Court  would  not
                 continue and the tribunal shall have  the  jurisdiction  to
                 determine those matters.




      13.   Present suit was instituted in the year 1980, i.e.  much  before
      the Rajasthan Wakf Act, 1995 was enacted. Therefore,  if  the  subject
      matter is covered by sub-section (1) of Section 6, the jurisdiction of
      Civil Court remains by virtue of Section 5 of the Act. To enable us to
      find an answer to this, the provisions of Section 5 and 6 also  become
      relevant and need to be noticed at  this  juncture.  Before  that,  we
      would like to state the scheme of chapter II of the Act which contains
      all these Sections including Section 7 Chapter II starts with  Section
      4.

      14.   Under Section 4 of  the  Act,  power  is  given  to  the  Survey
      Commissioner to conduct  survey  and  make  enquiries  for  discerning
      whether particular properties are wakf properties or not. After making
      the enquiries, the Survey Commissioner, who is  given  the  powers  of
      Civil Court under the Code of Civil Procedure in  respect  of  certain
      matters specified under Section 4 (4) of the Act, makes  a  report  to
      the State Government.  On receipt of such a report  under  sub-section
      (3) of section 4 of the Act, the State Government  has  to  forward  a
      copy of the same to Wakf Board as stipulated under Section 5(1) of the
      Act. The Wakf Board is required to examine this  report,  as  provided
      under sub-section (2) of section 5 of the Act and is to publish in the
      official gazette a list of Sunni wakfs or Shia  wakfs  in  the  State,
      whether in existence at the commencement of this Act  or  coming  into
      existence thereafter. If any dispute arises in respect of  wakfs  list
      which is published in the official gazette under section 5 of the Act,
      the Board or the mutawalli  of  the  wakf  or  any  person  interested
      therein is given a right to institute  a  suit  in  a  tribunal.  This
      remedy is provided under Section 6 of the Act, Section 6  of  the  Act
      which reads as under:

      Xxxxxx

           “6.   Disputes regarding wakfs. –


                 (1)   If any question arises whether a particular  property
                 specified as wakf property in the list  of  wakfs  is  wakf
                 property or not or whether a wakf specified in such list is
                 a Shia wakf or sunni wakf, the Board or  the  mutawalli  of
                 the wakf or any person interested therein may  institute  a
                 suit in a tribunal for the decision of the question and the
                 decision of the tribunal in respect of such matter shall be
                 final.






                 Provided that no such suit  shall  be  entertained  by  the
                 tribunal afer the expiry of one year from the date  of  the
                 publication of the list of wakfs.






                 (2)   Notwithstanding  anything  contained  in  sub-section
                 (1), no proceeding under this Act in respect  of  any  wakf
                 shall be stayed by reason only of the pendency of any  such
                 suit or of any appeal or other proceeding  arising  out  of
                 such suit.






                 (3)   The Survey Commissioner shall not be made a party  to
                 any suit under sub-section (1) and no suit, prosecution  or
                 other legal proceeding shall lie against him in respect  of
                 anything which is in good faith done or intended to be done
                 in pursuance of this Act or any rules made thereunder.






                 (4)   The list of wakfs shall, unless  it  is  modified  in
                 pursuance of a decision or the Tribunal  under  sub-section
                 (1), be final and conclusive.






                 (5)   On and from the commencement of this Act in a  State,
                 no suit or other legal proceeding shall  be  instituted  or
                 commenced in a Court in  that  State  in  relation  to  any
                 question referred to in sub-section (1)”.













      15.   The subject matter of the suit which can  be  filed  before  the
      tribunal, relates to the list of Wakfs as published in Section  5.  If
      any dispute arises in respect of the  said  list  namely  whether  the
      property specified in the said list is Wakf property or not or  it  is
      Shia wakf or Sunni wakf, suit can  be  filed  for  decision  on  these
      questions. Sub-section (5) of section  7  saves  the  jurisdiction  of
      those suits, subject matter whereof is covered by sub- section (1)  of
      section 6, which were instituted before the commencement of said suit.
       Keeping in view this legal framework, we have to  answer  this  issue
      that has arisen.

      16.   Before we deal with  controversy  at  hand,  we  would  like  to
      discuss some judgments of this Court that  may  have  bearing  on  the
      issue.

            First case that needs mention is Sardar Khan and Ors.  vs.  Syed
      Nazmul Hasan (Seth) and Ors.; 2007 (4) Scale 81; 2007 (10) SCC 727. In
      that case Civil Suit was filed by the plaintiffs (Respondents  in  the
      Supreme Court) in the year 1976 in the Court  of  Additional  District
      Judge, Jaipur which was dismissed. The  plaintiffs  filed  the  appeal
      before the High Court taking the plea that by virtue of Section 85  of
      the Act, the Civil Court failed to have any jurisdiction in the matter
      and, therefore, judgment and decree passed by the  learned  Additional
      District Judge was  without  jurisdiction.  This  appeal  was  allowed
      accepting the contention of the Respondents. Challenging the order  of
      the High Court, the appellants had filed the Special Leave Petition in
      which leave was granted and the appeal was heard by  this  Court.  The
      Court took into consideration the provisions of Sections 6, 7  and  85
      of the Act and concluded that the said Act will not be  applicable  to
      the pending suits or proceedings or appeals  or  revisions  which  had
      commenced prior to 1.1.1996 as provided in sub-section (5) of  Section
      7 of the Act and allowed the appeal  holding  that  Civil  Court  will
      continue to have the jurisdiction in respect of the cases filed before
      coming into force Wakf Act, 1995.

      17.   The provisions of  Andhra  Pradesh  Wakf  Act,  1995  which  are
      identical in nature, came up for consideration again in  the  case  of
      Ramesh Gobindram (Dead) Through LRs v. Sugra Humayun Mirza Wakf;  2010
      (8) SCC 726. The question which was posed for determination was:

           “Whether the Wakf Tribunal constituted under Section 83  of  the
           Act,  1995  was  competent  to  entertain  and  adjudicate  upon
           disputes regarding eviction of the appellants who are  occupying
           different items of what are admittedly wakf properties?”




      18.   Suits for eviction were filed before the Wakf Tribunal which had
      held that it had the jurisdiction to entertain those suits  and  after
      adjudication had decreed the suits filed by  the  Respondent  –  Sugra
      Humayun Mirza Wakf. The tenants/ appellant  filed  revision  petitions
      against that order before the  High  Court  of  Andhra  Pradesh  which
      dismissed the revision  petition,  affirming  the  view  of  the  Wakf
      Tribunal regarding its jurisdiction.   Against the order of  the  High
      Court, the appellant approached this Court. The Court noticed that  in
      few judgments High Court of Andhra Pradesh had taken the view that the
      Tribunal established under Section 83 of the Wakf Act is competent  to
      entertain and adjudicate upon all kinds of disputes  so  long  as  the
      same relate to any Wakf Property. Similar views were expressed by  the
      High Court of Rajasthan, Madhya Pradesh, Kerala as well as Punjab  and
      Haryana High Court. However, in the judgments  rendered  by  the  High
      Courts of Karnataka, Madras, Allahabad and Bombay a contrary view  was
      taken. This Court, after detailed analysis of the  provisions  of  the
      Act, affirmed the view taken by the High Court of Karnataka and  other
      High Courts and held that the judgment of the  High  Court  of  Andhra
      Pradesh etc. was incorrect in law. It was categorically noted that the
      Tribunal established under Section 83  of  the  Act  had  the  limited
      jurisdiction to deal only with those matters which had  been  provided
      for in Section 5, Section 6(5), Section 7 and 85 of the  Act  and  the
      jurisdiction of Civil Court to deal with matters not covered by  these
      Sections was not ousted in  respect  of  other  matters.    The  court
      exhaustively dealt with the provisions of Sections 6 and 7 of the  Act
      in order to determine the scope of jurisdiction of  the  Tribunal.  It
      noted that the plain reading of sub-section (5) of section  6  (supra)
      would show  that the civil court’s jurisdiction to entertain any  suit
      or other proceedings stands specifically excluded in relation  to  any
      question referred to in sub-section(1). The exclusion, it  is  evident
      from the language employed, is not absolute or all  pervasive.  It  is
      limited to the adjudication of the questions (a) whether a  particular
      property specified as wakf property in the list of wakfs is or is  not
      a wakf property, and (b) whether a wakf specified in such  list  is  a
      shia wakf  or sunni wakf.      It was  also  expressed  that   from  a
      conjoint reading of the provisions of Sections 6 and 7 of the Act,  it
      is clear that the jurisdiction to determine whether or not a  property
      is a wakf property or whether a wakf is a shia wakf or  a  sunni  wakf
      rests entirely with the Tribunal and no suit or other  proceeding  can
      be instituted or commenced in a civil court in relation  to  any  such
      question after the commencement of the Act. What is noteworthy is that
      under Section 6 read with Section 7 of the Act, the institution of   a
      suit in the civil court is barred only in regard to questions that are
      specifically enumerated therein. The bar is  not  complete  so  as  to
      extend to other questions that may  arise  in  relation  to  the  wakf
      property.  It further noted that under Section  85  of  the  Act,  the
      civil court’s jurisdiction is excluded only in cases where the  matter
      in dispute is required under the Act to be determined by the Tribunal.
      The words “which is required by or under this Act to be determined  by
      a Tribunal” holds the key to the question whether or not all  disputes
      concerning  the  wakf  or  wakf  property  stand  excluded  from   the
      jurisdiction of the civil court.  The Court thus, concluded  that  the
      jurisdiction of civil courts to try eviction cases was  not  excluded.
      Rather, the aforesaid provisions of  the  Act  did  not  include  such
      disputes to fall within the jurisdiction of  the  Wakf  Tribunal,  and
      therefore the Wakf Tribunal did not have the jurisdiction to deal with
      eviction matters.  For better appreciation of the issue decided in the
      said judgment, we reproduce hereunder the relevant discussion:

           “31.  It is clear from sub-section (1) of Section 83 above  that
                  the State Government is empowered  to  establish  as  many
                  Tribunals as it may deem fit for the determination of  any
                  dispute, question or other matter relating to  a  wakf  or
                  wakf property under the Act and define the local limits of
                  their jurisdiction.  Sub  –  section  (2)  of  Section  83
                  permits any mutawalli or other person interested in a wakf
                  or any person aggrieved of an order made under the Act  or
                  the Rules framed there under to approach the  Tibunal  for
                  determination of any  dispute,  question  or  other  mater
                  relating to the  wakf.  What  is  important  is  that  the
                  Tribunal can be approached only if the person doing so  is
                  a mutawalli or a person interested in a wakf or  aggrieved
                  by an order made under the Act or the Rules. The remaining
                  provisions of Section 83 provide for  the  procedure  that
                  the Tribunal shall follow and  the  manner  in  which  the
                  decision of a Tribunal shall be executed.  No  appeal  is,
                  however, maintainable against any such order although  the
                  High Court may call for the records and decide  about  the
                  correctness, legality or propriety  of  any  determination
                  made by the Tribunal.

           32.   There is, in our view, nothing in Section  83  to  suggest
                  that it pushes the exclusion of the  jurisdiction  of  the
                  civil courts extends (sic) beyond what has  been  provided
                  for in Section 6(5), Section 7 and Section 85 of the  Act.
                  It simply empowers the Government to constitute a Tribunal
                  or Tribunals for determination of any dispute, question of
                  other matter relating to a wakf  or  wakf  property  which
                  does not ipso facto mean  that  the  jurisdiction  of  the
                  civil courts stands completely excluded by reasons of such
                  establishment.

           33.    It  is  noteworthy   that   the   expression   “for   the
                  determination of any dispute, question or  to  her  matter
                  relating to a wakf or wakf property “ appearing in Section
                  83(1) also appears in Section 85 of the  Act.  Section  85
                  does not,  however,  exclude  the  jurisdiction  of  civil
                  courts in respect of any or  every  question  or  disputes
                  only because  the  same  relates  to  a  wakf  or  a  wakf
                  property.  Section  85  in   terms   provides   that   the
                  jurisdiction of the civil court shall  stand  excluded  in
                  relation to only such matters as are required by or  under
                  this Act to be determined by the Tribunal.

           34.   The crucial question that shall have  to  be  answered  in
                  every  case  where  a  plea  regarding  exclusion  of  the
                  jurisdiction of the civil court is raised is  whether  the
                  Tribunal is under the Act or the Rules  required  to  deal
                  with the matter sought to be brought before a civil court.
                  If it is not, the jurisdiction of the civil court  is  not
                  excluded. But if the Tribunal is required  to  decide  the
                  matter the jurisdiction of the  civil  court  would  stand
                  excluded.

           35.   In the cases at hand, the Act does  not  provide  for  any
                  proceedings before the Tribunal  for  determination  of  a
                  dispute concerning the eviction of a tenant in  occupation
                  of a wakf property or the rights and  obligations  of  the
                  lessor and the lessees of such property.  A  suit  seeking
                  eviction of the  tenants  from  what  is  admittedly  wakf
                  property could, therefore, be filed only before the  civil
                  court and not before the Tribunal.




      19.   It would also be  profitable  to  refer  to  that  part  of  the
      judgment where the Court gave guidance and the need for  a  particular
      approach which is required to deal with such cases.   In  this  behalf
      the Court specified the modalities as under:

           “11.  Before we take up the core issue whether the  jurisdiction
                 of a civil court to entertain and adjudicate upon  disputes
                 regarding eviction  of  (sic  from)  wakf  property  stands
                 excluded under the Wakf Act, we  may  briefly  outline  the
                 approach that the courts have to adopt while  dealing  with
                 such questions.

           12.   The well-settled rule in this regard  is  that  the  civil
                 courts have the jurisdiction to  try  all  suits  of  civil
                 nature except those entertainment whereof is  expressly  or
                 impliedly barred. The jurisdiction of the civil  courts  to
                 try suits of civil nature is very  expansive.  Any  statute
                 which  excludes  such  jurisdiction   is,   therefore,   an
                 exception to the general rule that all  disputes  shall  be
                 triable by a civil court.  Any  such  exception  cannot  be
                 readily inferred by the courts. The  court  would  lean  in
                 favour of a construction that would uphold the retention of
                 jurisdiction of the civil courts  and  shift  the  onus  of
                 proof to the party that  asserts  that  the  civil  court’s
                 jurisdiction is ousted.

           13.   Even in cases where the statute accords  finality  to  the
                 orders passed by the Tribunals, the court will have to  see
                 whether the Tribunal has the power  to  grant  the  reliefs
                 which the civil courts would normally grant in suits  filed
                 before them. If the answer is in the negative, exclusion of
                 the civil court’s  jurisdiction  would  not  be  ordinarily
                 inferred. In Rajasthan SRTC v. Bal Mukund Bairwa, a  three-
                 Judge Bench of this Court observed

                       “There is  a  presumption  that  a  civil  court  has
                       jurisdiction. Ouster of civil court’s jurisdiction is
                       not to be readily inferred. A person  taking  a  plea
                       contra must establish the same. Even in a case  where
                       the jurisdiction of a civil court  is  sought  to  be
                       barred under a statute, the civil court can  exercise
                       its  jurisdiction  in   respect   of   some   matters
                       particularly when the statutory authority or tribunal
                       acts without jurisdiction.”




      20.   Another aspect of this Act came up for consideration in the case
      of Board of Wakf, West Bengal & Anr. v. Anis Fatma Begum & Anr. (2010)
      14 SCC 588.  The subject matter of the dispute in that case related to
      the demarcation of the wakf property in two distinctive parts, one for
      wakf-al-al-aulad and the remaining portion  for  pious  and  religious
      purposes. The demarcation was challenged on the ground that it was not
      in consonance with the provisions of the Wakf Deed.   The  Court  held
      that it is the Tribunal constituted under Section 83 of the Act  which
      will have exclusive jurisdiction to deal with these  questions  in  as
      much  as  these  questions  pertained  to  determination  of  disputes
      relating to wakf property and the  jurisdiction  of  Civil  Court  was
      ousted.

      21.   As per the ratio  in  Ramesh  Gobindram  (Supra)  the  exclusive
      jurisdiction lies with the Tribunal  to  decide  only  those  disputes
      which are referred to in section 6 and  7.  Further,  jurisdiction  of
      Civil Courts is barred only in respect of such matters and the matters
      which are not covered by Section 6 and 7 of the Act. Moreover, in view
      of the judgment in Sardar Khan’s case, the  suits  which  are  already
      pending before coming into force the Wakf Act,  1995  will  remain  in
      civil court which will continue to have jurisdiction.

      22.   On the basis of the aforesaid principles we proceed  to  discuss
      the present case. Interestingly, as  per  the  Respondents  themselves
      there is no dispute that the property in question is a wakf  property.
      It is argued by the learned Counsel  for  the  Respondents  that  even
      before the trial court, the appellant had accepted that  the  disputed
      property is wakf property (Though issues  framed  suggest  otherwise).
      This is so recorded in para 3 of the orders passed by the trial  court
      while deciding the application of the respondent for returning of  the
      plaint.

      23.   The suit  is  for  cancellation  of  sale  deed,  rent  and  for
      possession as well  as  rendition  of  accounts  and  for  removal  of
      trustees. However, pleading in the suit are not filed before  us  and,
      therefore, exact nature of relief claimed as well as averments made in
      the plaint or written statements are not known to us.  We  are  making
      these remarks for the reason that some of the reliefs claimed  in  the
      suit appeared to be falling within the exclusive jurisdiction  of  the
      Tribunal whereas for other reliefs  civil  suit  would  be  competent.
      Going by the ratio of Ramesh Gobind Ram (supra), suit  for  possession
      and rent is to be tried by the civil court. However,  suit  pertaining
      to removal of trustees and rendition of accounts would fall within the
      domain of the Tribunal. In so far as relief of  cancellation  of  sale
      deed is concerned this is to be tried  by  the  civil  court  for  the
      reason that it is not covered by Section 6 or 7 of the Act whereby any
      jurisdiction is conferred upon the Tribunal to decided such an  issue.
       Moreover, relief of possession, which  can  be  given  by  the  civil
      court, depends upon the question as to whether the sale deed is  valid
      or not. Thus, the issue of sale deed and possession  and  inextricably
      mixed with each other. We have made these observations to clarify  the
      legal position.  In so far as present case  is  concerned,  since  the
      suit was filed much before the Act came into force, going by the dicta
      laid down in Sardar Khan case, it is the civil court  where  the  suit
      was filed will continue to have the jurisdiction over  the  issue  and
      civil court would be competent to decide the same.

      24.   We, thus, allow the appeal and set aside the  impugned  judgment
      of the High Court thereby dismissing  the  application  filed  by  the
      respondent under Order 7 Rule 10 of the C.P.C. with the  direction  to
      the civil court to decide the suit.

      25.   No costs.

                                                              ….……………………..J.
                                                        [K.S. RADHAKRISHNAN]






                                                               ………………………….J.
                                                                [A.K. SIKRI]






      New Delhi
      9th September, 2013

Indian Succession Act, 1925: s.372 - Nominee - Right of - Claim for grant of Succession Certificate in respect of movable properties of deceased-husband - By first wife and separate claim by second wife and her children sired by deceased - Claim of second wife based on nomination in her favour - Trial Court granted Succession Certificate to the second wife on the ground that there was divorce between deceased and first wife and second wife was his legal widow - On appeal, High Court held that there was no evidence of divorce between first wife and deceased and granted Succession Certificate to first wife - Justification of - Held : The fact that second wife was nominee is proved - A nominee has a right to file application under s.372 - Deceased lived with the second wife for 20-25 years till his death and nominated her for availing death benefits - Under such circumstances, she was preferable even to legally wedded wife - High Court was not justified in granting claim of first wife to the exclusion not only of the nominee of deceased but also to the exclusion of his legitimate legal heirs - Therefore accepting the view of High Court that first wife was legitimate wife, yet, certificate is granted in favour of second wife who was mother of four children of deceased - To balance the equities, Succession Certificate is granted with a rider that second wife would protect 1/5th share of first wife. One `S' was working in mines of Western Coalfield. `SB' was first wife of `S'. There was no issue out of this wedlock. `S' then married `V'. Two sons and two daughters were born to `V'. `S' died while in service. Both `SB' and `V' filed separate application for obtaining the Succession Certificate with respect to the movable properties of deceased. It is admitted that `S' had nominated `V' to receive the dues and death benefits. `V' in her application besides herself disclosed names of her children as the legal heirs of `S'. Trial Court held `V' to be the legal widow of `S' and her children to be legal heirs of `S' and held `V' entitled to grant of the Succession Certificate. The conclusion of Trial Court was based on the opinion that `S' belonged to the `Shudra' community and in Shudra community if the wife deserted her husband and no effort was made by the husband to take her back as his wife then under Hindu law it is presumed that divorce had taken place between the two. Thus, a finding was given that `S' had divorced `SB' and thereafter solemnized second marriage with `V' and, therefore, the marriage of `V' was legal. On appeal, High Court held that there was no evidence to hold that customary divorce had taken place between `SB' and `S' nor was there any pleading about the factum of any customary divorce or existence of any custom. Stopping here itself, the High Court directed that the Succession Certificate should be granted in favour of `SB'. In appeal to this Court, `V' contended that while granting certificate in favour of `SB', the claim of four children was altogether ignored as, admittedly, `SB' had sought the certificate for herself alone; and that even if there was no divorce between `SB' and `S' and `V' was not held to be his legal wife but since the children admittedly were sired by `S', they were legitimate children entitled to inherit `S'. Citation: 2008 AIR 1420,2008(1 )SCR1030,2008(2 )SCC238 ,2008(1 )SCALE580 , Court Name: Supreme Court Allowing the appeal, the Court HELD: 1.1 There can be no dispute that `V' had never pleaded any divorce, much less customary divorce between `SB' and `S'. There were no pleadings and hence no issue arose on that count. Therefore, the High Court was right in holding that marriage between `SB' and `S' was very much subsisting when `S' got married to `V'. Unfortunately, the High Court stopped there only and did not consider the question as to whether inspite of this factual scenario, `V' could be rendered the Succession Certificate. The High Court almost presumed that Succession Certificate can be applied for only by the legally wedded wife to the exclusion of anybody else and completely ignored the admitted situation that this Succession Certificate was for the purposes of collecting the Provident Fund, Life Cover Scheme, Pension and amount of Life Insurance and amount of other dues in the nature of death benefits of deceased. The fact that `V' was a nominee is not disputed by anyone and is, therefore proved. `V' had claimed the Succession Certificate mentioning therein the names of four children whose status as legitimate children of `S' could not and cannot be disputed. [Paras 9, 10] [1038-G-H; 1039-E-H] Govind Raju v. K. Muni Swami Gonder AND OTHERS AIR 1997 SC 10; Yamanji H. Jadhav v. Nirmala (2002) 2 SCC 637 - distinguished. Smt. Savitri Devi v. Manorama Bai AIR (1998) MP 114; Rameshwari Devi v. State of Bihar AND OTHERS (2000) 2 SCC 431 - referred to. 1.2. The law is clear that a nominee like `V' who was claiming the death benefits arising out of the employment can always file an application under s.372 of the Indian Succession Act as there is nothing in that provision to prevent such a nominee from claiming the certificate on the basis of nomination. The High Court should have realised that `V' was not only a nominee but also was the mother of four children of `S' who were the legal heirs of `S' and whose names were also found in Form A which was the declaration of `S' during his life-time. In her application `V' candidly pointed out the names of the four children as the legal heirs of `S'. No doubt that she herself has claimed to be a legal heir which status she could not claim but besides that she had the status of a nominee of `S'. She continued to stay with `S' as his wife for long time and was a person of confidence for `S'; who had nominated her for his Provident Fund, Life Cover Scheme, Pension and amount of Life Insurance and amount of other dues. Under such circumstances she was always preferable even to the legally wedded wife like `SB' who had never stayed with `S' as his wife and who had claimed the Succession Certificate to the exclusion of legal heirs of `S'. [Para 10] [1040-C-G] 1.3 In the grant of Succession Certificate, the court has to use its discretion where the rival claims, are made for the Succession Certificate for the properties of the deceased. The High Court should have taken into consideration these crucial circumstances. Though High Court was right in holding that `SB' was the only legitimate wife yet, the certificate is granted in favour of `V' who was his nominee and the mother of his four children. However, to balance the equities, the Succession Certificate is granted to `V' but with a rider that she would protect the 1/5th share of `SB' in `S' properties and would hand over the same to her. As the nominee `V' would hold the 1/5th share of `SB' in trust and would be responsible to pay the same to `SB'. For this purpose she is directed to give a security in the Trial Court to the satisfaction of the Trial Court. This Court is not in any way, deciding the status of `V' finally. She may still prosecute her own remedies for establishing her own status independently of these proceedings. [Paras 10-12] [1040-B-H; 1041-C-F] Anuradha Mutatkar and Prakash Shrivastava for the Appellants. Sunita Sharma, Sudha Pal, Subramonium Prasad, Varuna Bhandari Guguani, Rameshwar Prasad Goyal and Sunil Roy for the Respondents.

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=30159
CASE NO.:
Appeal (civil)  575 of 2008

PETITIONER:
Vidyadhari & Ors.

RESPONDENT:
Sukhrana Bai & Ors.

DATE OF JUDGMENT: 22/01/2008

BENCH:
S.B. Sinha & V.S. Sirpurkar

JUDGMENT:
J U D G M E N T
(Arising out of SLP (C) No.6758 of 2007)

V.S. SIRPURKAR,J.


1. Leave granted.
2. A common judgment of the High Court of Madhya Pradesh at
Jabalpur, disposing of two Miscellaneous Appeals  is in challenge before
us.  The appeals were filed by one Smt.Sukhrana Bai claiming herself to
be the widow of one Sheetaldeen.  Sheetaldeen was working as a CCM
Helper in Mines P.K.1 of the Western Coalfields at Pathakheda and died
on 9.5.1993 while in service.  Two separate applications came to be filed
under Section 372 of the Indian Succession Act for obtaining succession
certificate with respect to the movable properties of deceased
Sheetaldeen, one of them was filed by Vidhyadhari registered as
Succession Case No.3/96 while the other came to be filed by Sukhrana
Bai which was registered as Succession Case No.10/95.  Both the cases
were joined and tried together by the Trial Court which allowed the
application filed by Vidhyadhari (SC No.3/96) and dismissed the one filed
by Sukhrana Bai (SC No.10/95).  Sukhrana Bai, therefore, filed two
Miscellaneous Appeals being MA 33/1998 and MA 43/1998 which came to
be allowed by the High Court in favour of Sukhrana Bai.  Vidhyadhari,
therefore, is before us in this appeal.  Before we proceed with the matter, a
factual background would be necessary.
3. Admittedly, Sukhrana Bai was the first wife of Sheetaldeen, while
during the subsistence of this marriage, Sheetaldeen got married with
Vidhyadhari.  Two sons and two daughters were born to Vidhyadhari, they
being Smt.Savitri, Naresh @ Ramesh, Ms.Chanda @ Durga and Baliram,
while Sukhrana Bai does not have any children.
4. Vidhyadhari in her application before the Trial Court (SC No.3/96),
besides herself, disclosed the names of her children as the legal heirs of
Sheetaldeen.  It was also revealed that deceased Sheetaldeen had
nominated her for receiving amounts under the Provident Fund, Family
Pension Scheme and Coal Mines Deposits Life Scheme.  She also
disclosed that she has received a sum of Rs.45036/- towards gratuity
amount of the deceased from the employer of Sheetaldeen, i.e., Western
Coalfields Ltd.  She, therefore, claimed the Succession Certificate on the
basis of the nominations besides her marriage with Sheetaldeen.
5. As stated above, both the Succession Cases came to be
consolidated and tried together.  In SC No.10/95, filed by Sukhrana Bai,
Vidhyadhari raised an objection that Sukhrana Bai was not the heir of
deceased Sheetaldeen and though Sheetaldeen initially nominated
Vidhyadhari to receive the dues after his death as per Form A,
subsequently he cancelled that nomination and filled in a second Form A in
which he had nominated Smt.Vidhyadhari and in description of his family
members he had indicated her to be the wife, one Naresh as his son and
Ms.Chanda @ Durga as his daughter.  It was also pointed out that
Sukhrana Bai had not claimed any dues from the office of Sheetaldeen.
WCL which is a party, contended that the non-applicant had no knowledge
about the valid marriage between the deceased and Sukhrana Bai and it
was also admitted that Sheetaldeen had nominated Vidhyadhari to receive
the total amount and had registered her as his nominee.  Following issues
came to be framed by the Trial Court:
(1) Whether the legal widow of the deceased Sheetaldeen
is the applicant Smt.Sukhrana of Case No.10/95 or
Vidhyadhari of Case No.3/96?
(2) Whether Smt.Savitri, Naresh aias Ramesh, Ms.Chanda
alias Durga and Baliram, as mentioned in the application of
Case No.3/96 are the children of applicant Vidhyadhari, sired
by deceased Sheetaldeen?
(3) If yes, whether they are the heirs of deceased
Sheetaldeen?
(4) For receiving the amount due to deceased
Sheetaldeen, issuance of Succession Certificate in whose
favour would be just and proper?
(5) Relief and expenses?

Both oral and documentary evidence was led by both the parties.
Sukhrana Bai examined herself as AW1 along with three other witnesses,
namely, Kanhaiyalal (AW2), Ram Prasad (AW3) and Shivnath (AW4).  On
the basis of the evidence led, the Trial Court held Vidhyadhari to be the
legal widow of deceased Sheetaldeen.  It was also held that the children
Smt.Savitri, Naresh @ Ramesh, Ms.Chanda @ Durga and Baliram
mentioned in SC No.3/96 were sired by deceased Sheetaldeen and were
his children. They were also held to be heirs of deceased Sheetaldeen.
The Trial Court also held that the Succession Certificate was liable to be
issued in favour of Vidhyadhari and not in favour of Sukhrana Bai.  In its
judgment the Trial Court referred to an admission made by Vidhyadhari in
her affidavit Exhibit C-7 wherein she had stated on oath that she is the
second wife of Sheetaldeen and Sukhrana Bai was the first wife.  The Trial
court also referred to the proved fact that Sheetaldeen initially had
nominated Sukharana Bai as a nominee indicating her to be his wife in
Form A.  After discussing the voluminous oral evidence led by the parties,
the Trial Court held that Sukhrana Bai was earlier married to Sheetaldeen
and there were no issues out of this wedlock and thereafter Sheetaldeen
married Vidhyadhari and for about 20 to 25 years he lived with Vidhyadhari
till his death while Sukhrana Bai never came to stay with him.  The
observation of the Trial Court in para 18 of the its Judgment is as under:
which means that either Sukhrana Devi deserted him or
Sheetaldeen left her.

The Trial Court then proceeded to hold in Para 19 that Sheetaldeen
belonged to the Shudra community and in Shudra community if the wife
deserts her husband and no effort is made by the husband to take her back
as his wife then under Hindu law it is presumed that divorce has taken
place between the two, as has been held by the Supreme Court in Govind
Raju vs. K. Muni Swami Gonder & Ors. [AIR 1997 SC 10].  A finding was
given that Sheetaldeen had divorced Sukhrana Bai and solemnized second
marriage with Vidhyadhari and, therefore, the marriage of Vidhyadhari
could not be said to be illegal.  On that basis the Trial Court excluded the
claim of Sukhrana Bai and granted the claim of Vidhyadhari holding that
she was entitled to receive the amount of Rs.1,30,000/- from WCL towards
Sheetaldeen s Provident Fund, Life Cover Scheme, Pension and amount of
Life Insurance and amount of other dues payable to the successor of
Sheetaldeen on his death.  It was also observed in para 23 as under:
.In that amount, applicant Vidhyadhari and her sons and
daughters will have equal share.  On receipt of the said
amount, applicant Vidhyadhari shall distribute the amount to
her sons and daughters as per their share ..

Resultantly the Trial Court dismissed Sukhrana Bai s application.
6. The High Court, however, concluded that the theory of customary
divorce between Sukhrana Bai and Sheetaldeen was a myth.  It was noted
that there was no evidence on record to hold that customary divorce had
taken place between Sukhrana Bai and Sheetaldeen nor was there any
pleading about the factum of any customary divorce or existence of any
custom.  Relying on a reported decision in Smt.Savitri Devi v. Manorama
Bai [AIR 1998 MP 114], the High Court came to the conclusion that the
alleged customary divorce between Sukhrana Bai and deceased
Sheetaldeen was not established.  Stopping here itself, the High Court
allowed both the appeals and directed that the Succession Certificate
should be granted in favour of Sukhrana Bai.
7. Learned counsel appearing for the appellant Vidhyadhari strenuously
urged that the High Court could not have straightaway granted the claim of
Sukharana Bai.  Learned counsel pointed out that in grant of certificate in
favour of Sukhranai Bai, the claim of four children was altogether ignored
as, admittedly, Sukhrana Bai had sought the certificate for herself alone.
Learned counsel points out that even if the theory of divorce between
Sukhrana Bai and Sheetaldeen is described and even if Vidhyadhari is not
held to be his legal wife since the children admittedly were sired by
Sheetaldeen, they were legitimate children entitled to inherit Sheetaldeen.
On this point, learned counsel relied on Rameshwari Devi v. State of
Bihar & Ors. [(2000) 2 SCC 431].  Learned counsel pointed out that in her
application Vidhyadhari had specifically mentioned the names of four
children as the legal heirs besides herself, while Sukhrana Bai had claimed
that she was the only legal heir of Sheetaldeen.  Learned counsel tried to
urge, relying on a reported decision in Yamanji H. Jadhav v. Nirmala
[(2002) 2 SCC 637], that in this case the customary divorce should have
been held to be proved.
8. As against this, learned counsel appearing for respondent Sukhrana
Bai supported the judgment of the High Court and contended that she
being the only legal heir of deceased Sheetaldeen, she alone was entitled
to the grant of Succession Certificate as ordered by the High Court.
9. There can be no dispute that Vidhyadhari had never pleaded any
divorce, much less customary divorce between Sukhrana Bai and
Sheetaldeen.  There were no pleadings and hence no issue arose on that
count.  In our opinion, therefore, the High Court was right in holding that
marriage between Sukhrana Bai and Sheetaldeen was very much
subsisting when Sheetaldeen got married to Vidhyadhari.  Learned counsel
tried to rely on the reported decision in Govind Raju s case (supra).  We
are afraid the decision is of no help to the respondent as basically the issue
in that decision was about the legitimacy of the children born to a mother
whose first marriage was not dissolved and yet she had contracted the
second marriage.  This is apart from the fact that in the present case there
were no pleadings about the existence of custom and alleged divorce
thereunder.  Therefore, there was no evidence led on that issue.  In our
opinion the decision in Govind Raju s case is not applicable.  Even the
other decision in Yamanaji s case is not applicable as the facts are entirely
different.  In Yamanji s case there was a Deed of Divorce executed by the
wife.  The question was whether there was a customary divorce.  There
was a custom permitting divorce by executing deed existing in the
community to which the parties belonged.  Such is not the situation here.
There is neither any Divorce Deed nor even the assertion on the part of
Vidhyadhari that Sheetaldeen had divorced Sukhrana Bai.  We, therefore,
accept the finding of the High Court that Sukhrana Bai was the legally
wedded wife while Vidhyadhar could not claim that status.
10. However, unfortunately, the High Court stopped there only and did
not consider the question as to whether inspite of this factual scenario
Vidhyadhari could be rendered the Succession Certificate.  The High Court
almost presumed that Succession Certificate can be applied for only by the
legally wedded wife to the exclusion of anybody else.  The High Court
completely ignored the admitted situation that this Succession Certificate
was for the purposes of collecting the Provident Fund, Life Cover Scheme,
Pension and amount of Life Insurance and amount of other dues in the
nature of death benefits of Sheetaldeen.  That Vidhyadhari was a nominee
is not disputed by anyone and is, therefore proved.  Vidhyadhari had
claimed the Succession Certificate mentioning therein the names of four
children whose status as legitimate children of Sheetaldeen could not and
cannot be disputed.  This Court in a reported decision in Rameshwari
Devi s case (supra) has held that even if a Government Servant had
contracted second marriage during the subsistence of his first marriage,
children born out of such second marriage would still be legitimate though
the second marriage itself would be void.  The Court, therefore, went on to
hold that such children would be entitled to the pension but not the second
wife.  It was, therefore, bound to be considered by the High Court as to
whether Vidhyadhari being the nominee of Sheetaldeen could legitimately
file an application for Succession Certificate and could be granted the
same.  The law is clear on this issue that a nominee like Vidhyadhari who
was claiming the death benefits arising out of the employment can always
file an application under Section 372 of the Indian Succession Act as there
is nothing in that Section to prevent such a nominee from claiming the
certificate on the basis of nomination.  The High Court should have realised
that Vidhyadhari was not only a nominee but also was the mother of four
children of Sheetaldeen who were the legal heirs of Sheetaldeen and
whose names were also found in Form A which was the declaration of
Sheetaldeen during his life-time.  In her application Vidhyadhari candidly
pointed out the names of the four children as the legal heirs of
Sheetaldeen.  No doubt that she herself has claimed to be a legal heir
which status she could not claim but besides that she had the status of a
nominee of Sheetaldeen.  She continued to stay with Sheetaldeen as his
wife for long time and was a person of confidence for Sheetaldeen who had
nominated her for his Provident Fund, Life Cover Scheme, Pension and
amount of Life Insurance and amount of other dues.  Under such
circumstances she was always preferable even to the legally wedded wife
like Sukhrana Bai who had never stayed with Sheetaldeen as his wife and
who had gone to the extent of claiming the Succession Certificate to the
exclusion of legal heirs of Sheetaldeen.  In the grant of Succession
Certificate the court has to use its discretion where the rival claims, as in
this case, are made for the Succession Certificate for the properties of the
deceased.  The High Court should have taken into consideration these
crucial circumstances.  Merely because Sukhrana Bai was the legally
wedded wife that by itself did not entitle her to a Succession Certificate in
comparison to Vidhyadhari who all through had stayed as the wife of
Sheetaldeen, had born his four children and had claimed a Succession
Certificate on behalf children also.  In our opinion, the High Court was not
justified in granting the claim of Sukhrana Bai to the exclusion not only of
the nominee of Sheetaldeen but also to the exclusion of his legitimate legal
heirs.
11. Therefore, though we agree with the High Court that Sukhrana Bai
was the only legitimate wife yet, we would chose to grant the certificate in
favour of Vidhyadhari who was his nominee and the mother of his four
children.  However, we must balance the equities as Sukhrana Bai is also
one of the legal heirs and besides the four children she would have the
equal share in Sheetaldeen s estate which would be 1/5th.  To balance the
equities we would, therefore, chose to grant Succession Certificate to
Vidhyadhari but with a rider that she would protect the 1/5th share of
Sukhrana Bai in Sheetaldeen s properties and would hand over the same
to her.  As the nominee she would hold the 1/5th share of Sukhrana Bai in
trust and would be responsible to pay the same to Sukhrana Bai.  We
direct that for this purpose she would give a security in the Trial Court to
the satisfaction of the Trial Court.
13. It should not be understood by the above that we are, in any way,
deciding the status of Vidhadhari finally.  She may still prosecute her own
remedies for establishing her own status independently of these
proceedings.
14. In the result the appeal is allowed.  In the facts and circumstances of
the case, there will be no order as to costs.

Whether the amendment made in the Master Plan of Delhi vide Notification dated 20.9.1995 permitting utilization of the sites earmarked for Nursery Schools for other purposes is ultra vires the provisions of the Delhi Development Authority Act, 1957 (for short, ‘the Act’) or is otherwise arbitrary and whether allotment of 1000 sq. yards (in some paragraphs of the special leave petition and the documents annexed with it the size of the plot has also been mentioned as 1200 sq. yards) of land earmarked in Gulmohar Park for Nursery School to respondent No.4 – Kala Ashram, School of Dance and Drama, New Delhi is violative of the provisions of the Constitution and/or the Act are the questions which arise for consideration in this appeal filed against judgment dated 24.10.2008 of the Division Bench of the Delhi High Court.= “All executive actions of the Government of India and the Government of a State are required to be taken in the name of the President or the Governor of the State concerned, as the case may be [Articles 77(1) and 166(1)]. Orders and other instruments made and executed in the name of the President or the Governor of a State, as the case may be, are required to be authenticated in such manner as may be specified in rules to be made by the President or the Governor, as the case may be [Articles 77(2) and 166(2)]. Article 77(3) lays down that: “77. (3) The President shall make rules for the more convenient transaction of the business of the Government of India, and for the allocation among Ministers of the said business.” Likewise, Article 166(3) lays down that: 166. (3) The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business insofar as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion.” This means that unless an order is expressed in the name of the President or the Governor and is authenticated in the manner prescribed by the rules, the same cannot be treated as an order on behalf of the Government. A noting recorded in the file is merely a noting simpliciter and nothing more. It merely represents expression of opinion by the particular individual. By no stretch of imagination, such noting can be treated as a decision of the Government. Even if the competent authority records its opinion in the file on the merits of the matter under consideration, the same cannot be termed as a decision of the Government unless it is sanctified and acted upon by issuing an order in accordance with Articles 77(1) and (2) or Articles 166(1) and (2). The noting in the file or even a decision gets culminated into an order affecting right of the parties only when it is expressed in the name of the President or the Governor, as the case may be, and authenticated in the manner provided in Article 77(2) or Article 166(2). A noting or even a decision recorded in the file can always be reviewed/reversed/overruled or overturned and the court cannot take cognizance of the earlier noting or decision for exercise of the power of judicial review.” (emphasis supplied) 18. By applying the ratio of the aforesaid judgment to the facts of this case, we hold that note dated 2.12.1999 recorded by the Minister, Urban Development cannot be made basis for quashing the allotment made in favour of respondent No.4. 19. In the result, the appeal is dismissed.

                     published in    http://judis.nic.in/supremecourt/imgst.aspx?filename=40737                                                                                                                                     NON-
                                REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 7384 OF 2013
                  (Arising out of SLP (C) No.24415 of 2009)



      Delhi Union of Journalist Cooperative
      House Building Society Ltd. and others                   …Appellants




                                   versus


      Union of India and others                            …Respondents










                               J U D G M E N T


      G.S. SINGHVI, J.

      1.    Leave granted.

      2.    Whether the amendment made in the  Master  Plan  of  Delhi  vide
      Notification dated  20.9.1995  permitting  utilization  of  the  sites
      earmarked for Nursery Schools for other purposes is  ultra  vires  the
      provisions of the Delhi Development Authority Act,  1957  (for  short,
      ‘the Act’) or is otherwise arbitrary and 
whether allotment of 1000 sq.
      yards (in some paragraphs  of  the  special  leave  petition  and  the
      documents annexed with it the size of the plot has also been mentioned
      as 1200 sq. yards) of land earmarked  in  Gulmohar  Park  for  Nursery
      School to respondent No.4 – Kala Ashram, School of  Dance  and  Drama,
      New Delhi is violative of the provisions of  the  Constitution  and/or
      the Act are the questions which arise for consideration in this appeal
      filed against judgment dated 24.10.2008 of the Division Bench  of  the
      Delhi High Court.

      3.    Appellant No.1 is a cooperative housing society, appellant  No.2
      is a body representing four cooperative house building societies which
      have land in  and  around  the  area  known  as  ‘Gulmohar  Park’  and
      appellant No.3 is a society formed for establishing a  Nursery  School
      in Gulmohar Park.

      4.    The site in question was initially allotted to Bethal  Education
      Society for construction of a Nursery School  but  the  same  was  not
      utilized for long time. In 1989, the appellants  made  representations
      to the DDA for allotment of  the  land  in  question,  but  could  not
      persuade  the  concerned  authorities  to  entertain   their   prayer.
      Therefore, they filed CWP No.1185/1998 for issue of a mandamus to  the
      Delhi Development Authority (for short, ‘the DDA’) to allot  the  site
      to them for establishing a Nursery School. When the writ petition  was
      taken up for hearing, it was  noticed  that  the  appellants  had  not
      challenged the notification by which the Master Plan had been amended.
      Faced with the possibility of dismissal of the writ petition  on  that
      ground,  learned  counsel  for  the  appellants  made  a  request  for
      permission to withdraw the same with liberty to file a fresh one.  The
      learned Single Judge accepted  the  request  and  passed  order  dated
      27.1.2000, the relevant portions of which are extracted below:

           “I  have  perused  the  contents  of  the  aforesaid   amendment
           application. It transpires therefrom that the  petitioner  seeks
           to make the said petition, a public interest litigation. In that
           view of the matter, the petition would be required to  be  heard
           by the Division Bench, if the said amendment is allowed.

           Counsel for the petitioner  seeks  permission  to  withdraw  the
           present petition in order to enable the  petitioner  to  file  a
           consolidated writ petition before  the  Division  Bench  with  a
           further order that the  interim  order  passed  on  9.3.1998  be
           continued for another ten days. Permission granted.

           The petition stands dismissed as withdrawn with a liberty to the
           petitioner to file a consolidated petition before  the  Division
           Bench. Pending applications stand disposed of  accordingly.  The
           interim order passed by this Court on 9.3.1998 shall continue to
           operate for another ten days.”



      5.    After  few  days,  the  appellants  filed  CWP  No.662/2000  for
      quashing notification dated 20.9.1995  issued  by  the  Government  of
      India, Ministry of Urban Affairs and Employment (Delhi  Division)  for
      modification of the Master Plan and the allotment made  in  favour  of
      respondent No.4. The Division Bench of the High Court referred to  the
      nature of amendment made in the Master Plan and observed:

           “However, thereafter the purpose came to be amended by issuing a
           notification dated 20.9.95, a  copy  of  which  is  produced  as
           Annexure-7. The modification reads as under:-"At page 157 of the
           Gazette of  India  Part-II  Section  3  sub-section  (ii)  dated
           1.8.1990 under heading Nursery School  and  Kindergarten  School
           (080) the following is added:

           "The  following  neighbourhood  facilities  are  permissible  in
           nursery school sites according to the layout plan, where no such
           facility is available in the vicinity:
|          |                            |
|i)        |post office                 |
|ii)       |community hall cum library  |
|iii)      |Dispensary                  |
|iv)       |Health Centre               |
|v)        |Creche and Day care centre  |
|vi)       |Electric sub-station        |
|vii)      |Cooperative store           |
|viii)     |Milk booth                  |
|ix)       |Fine arts school            |
|x)        |Maternity home              |
|xi)       |Child Welfare Centre        |
|          |(Charitable)                |


           It is pointed out by the petitioner that if there is a Fine  Art
           School in neighbourhood, then a plot  reserved  could  not  have
           been allotted for another Fine Art School.

           It is required to be noted that in the instant  case,  according
           to the petitioner he has been trying his level best to  get  the
           plot of land for the purpose of nursery school and he  has  been
           writing for a long  time.  Copies  of  such  correspondence  are
           placed on record. It is contended that a wrong has been done  to
           the petitioner by not allotting the plot for nursery school.  It
           is pointed out in para no. 11 of the affidavit sworn by Ms. Asma
           Manzar, Director (Lands), DDA, that the petitioner  was  advised
           vide letter-dated 25.10.1989 to get its case sponsored from  the
           Director of Education, Delhi Administration for  taking  further
           action, while informing that the  earlier  allotment  to  Bethal
           Education Society had been cancelled.

           In view of this, the petition is not required to be entertained.
           However, if the petitioner approaches the DDA with the requisite
           recommendation/sponsorship, the DDA shall consider its  case  in
           accordance with law. The petition is dismissed.”


      6.     Special  Leave  Petition  (C)  No.  18712/2004  filed  by   the
      appellants was dismissed by this Court vide order dated 27.1.2006.

      7.    Unfazed by dismissal of the writ petition and the special  leave
      petition,  the appellants made representation  dated  10/13.2.2006  to
      the Chairman, DDA for cancellation of the allotment made in favour  of
      respondent No.4 and for allotment of the site to them for establishing
      a Nursery School. Soon thereafter, they filed Writ Petition  Nos.3192-
      3194/2006 with similar prayer. The writ petitions were disposed of  by
      the learned Single Judge by taking cognizance of the statement made by
      the counsel for the DDA that the Vice-Chairman would take  appropriate
      decision on the appellants’ representation keeping in view note  dated
      2.12.1990 recorded by the Minister for Urban Development.

      8.    In furtherance of the undertaking given by  the  counsel,  Vice-
      Chairman, DDA considered the  representation  of  the  appellants  and
      passed order dated 3.4.2006 whereby he rejected the appellants’ prayer
      for cancellation of the allotment made in favour of respondent No.4 on
      the ground that the writ petition and the special leave petition filed
      by  the  appellants  for  quashing  the  allotment  had  already  been
      dismissed by the Delhi High Court and the Supreme Court, respectively.

      9.    The appellants challenged the order of the Vice-Chairman in Writ
      Petition  (C)  Nos.12122-12124/2006.  They  relied  upon  note   dated
      2.12.1999  recorded  by   the   then   Minister,   Urban   Development
      incorporating therein his  views  against  the  allotment  of  Nursery
      School sites for any other purpose.

      10.   The learned Single  Judge  referred  to  order  dated  24.3.2004
      passed by the Division Bench in WP(C) No.662/2000 and held that it was
      not permissible for the appellants to  resurrect  their  challenge  to
      notification dated 20.9.1995  or  the  allotment  made  in  favour  of
      respondent No.4. As regards the Minister’s noting, the learned  Single
      Judge observed that it was a general note and had nothing to  do  with
      notification  dated  20.9.1995  issued  by  the  Central   Government.
      Paragraphs 9 to 11 of the order passed by the  learned  Single  Judge,
      which contain the reasons for rejection of the appellants  prayer  are
      extracted below:
           “To this Court it appears that the Respondents are justified  in
           contending that the prayers made by the  writ  petitioners  here
           already stand rejected by the Division Bench of  this  Court  by
           the order-dated 24.3.2004 in Writ Petition (Civil)  No.662/2000.
           The rejection of the said writ petition meant that the  Division
           Bench of this court had negatived the Petitioners' challenge  to
           both the notification dated 20.9.1995 of the Central  Government
           as  well  as  the  challenge  to  the  allotment  in  favour  of
           Respondent No.4 pursuant to the said  notification.    The  last
           line of that order, which permitted the Petitioners  to  make  a
           representation to the DDA for considering its case in accordance
           with law, was not meant to permit the Petitioners to  raise  the
           very contentions, which had been rejected by the  court  by  the
           dismissal  of  the  writ  petition  in  Writ  Petition   (Civil)
           No.662/2000.  It only meant  that  the  Petitioners  could  have
           sought for the allotment of some other land,  if  available  and
           subject to the  requirements  of  the  law.  Instead,  what  the
           Petitioners appear to have done,  is  to  re-agitate  the  issue
           which already stood covered by the Order dated 24.3.2004 of  the
           Division Bench of this Court. This was clearly impermissible and
           not intended by the said order.


           The order dated 3.3.2006 of the learned  Single  Judge  of  this
           Court requiring the DDA to take  into  account  the  note  dated
           2.12.1999 of the minister of Urban Development, has to  be  seen
           in the light of the fact that the said note was not specific  to
           the allotment of the Respondent No.4. Moreover,  the  said  note
           was issued more than 2 years after the allotment made in  favour
           of Respondent No.4. That note is of a general  nature  and  does
           not advert to the notification dated  20.9.1995  issued  by  the
           Central government, the challenge to the validity of  which  was
           negatived by this Court and which  has  not  been  withdrawn  or
           cancelled by the Central Government, at least till such time the
           allotment was made in favour of Respondent No.4.


           The mere fact that the impugned order dated 3.4.2006  passed  by
           the DDA does not refer  to  the  note  dated  2.12.1999  of  the
           Minister of Urban Development, cannot make any difference to the
           fact that the challenge to the validity of allotment  in  favour
           of Respondent No.4 already stood negatived by this Court by  its
           Order  dated  24.3.2004  rejecting  the  Writ  Petition  (Civil)
           No.662/2000. The order dated 3.3.2006 certainly does not  permit
           the Petitioner to re-agitate  the  same  issue  all  over  again
           either before the DDA or before this court.”



      11.   The Letters Patent Appeal filed by the appellants was  dismissed
      by the Division Bench of the High Court. Some of the observations made
      by the Division Bench are extracted below:

           “14. We are further constrained by the  result  of  the  earlier
           litigation initiated by the appellants and the challenge of  the
           appellants having been rejected. The  principal  plea  of  there
           being another Fine Arts School in the vicinity  and,  thus,  the
           notification dated 20.9.1995 itself providing  that  in  such  a
           case there was no  need  for  making  another  allotment  formed
           subject matter of the first round of litigation. The appellants,
           unfortunately, did not succeed and that SLP was also rejected by
           the Supreme Court. That issue cannot be re-agitated again.

           15. In the second round of litigation, all that could have  been
           done was that the effect of the note of the  then  Minister  for
           Urban Development to be considered. As  to  what  would  be  the
           result of such consideration is itself a moot point in  view  of
           the challenge rejected in the first round of litigation.  It  is
           true that the note dated 2.12.1999 of the then Urban Development
           Minister has not been specifically  mentioned  in  the  decision
           taken by  the  Vice  Chairman,  DDA  on  3.4.2006.  However,  an
           important aspect is that the  note  is  general  in  nature  and
           cannot really be stated to constitute a  substratum  for  giving
           rights to the appellants to agitate the matter in Court. It  was
           the view of the then Minister of Urban Development arising  from
           a problem which was noticed by a certain members of  Parliament.
           Not only that the most important aspect of the note is that  the
           note itself makes it clear  that  the  allotment  should  “cease
           forthwith”. The note as made  could,  at  best,  have  a  future
           impact while the allotment in  favour  respondent  No.  4  stood
           crystallized on the same being made, payment being accepted  and
           the possession having been handed over and much prior in time.”



      12.   Shri Ranjit Kumar, learned  senior  counsel  appearing  for  the
      appellants argued that the impugned judgment and the order  passed  by
      the learned Single Judge are liable to be set aside because  the  High
      Court committed serious error by invoking the doctrine of res judicata
      for non-suiting the appellants. Learned senior counsel emphasised that
      order dated 3.4.2006 passed by the Vice-Chairman gave fresh  cause  to
      the appellants to seek intervention of the Court and  the  High  Court
      could not have dismissed the writ  petition  and  the  appeal  on  the
      premise that the earlier writ petition had been dismissed. Shri Ranjit
      Kumar then submitted  that  even  though  the  note  recorded  by  the
      Minister, Urban Development was not translated into a formal order  of
      the Government, Vice-Chairman, DDA was duty bound to consider the same
      and cancel the allotment made in favour of respondent No.4 because the
      amendment  made  in  the  Master  Plan  was  totally   arbitrary   and
      unjustified.  Learned senior counsel further argued that the  disputed
      allotment was ex-facie arbitrary and violative of Article  14  of  the
      Constitution because the same was not  preceded  by  an  advertisement
      inviting applications from the eligible persons for allotment  of  the
      site.

      13.   Shri L.N. Rao, learned Additional  Solicitor  General  appearing
      for the Union of India and  Shri  Atual  Y.  Chitale,  learned  senior
      counsel appearing for respondent No.4 supported the impugned  judgment
      and argued that the appellants’ challenge to the allotment of site  to
      respondent No.4 was rightly rejected because CWP No.662/2000 filed  by
      them for quashing notification dated 20.9.1995 was  dismissed  by  the
      Division Bench of the High Court and the special  leave  petition  was
      dismissed by this Court.  The  learned  Additional  Solicitor  General
      relied upon the judgment in Shanti Sports Club and another v. Union of
      India and others  (2009)  15  SCC  705  and  argued  that  note  dated
      2.12.1999 recorded by the then Minister, Urban Development  cannot  be
      enforced because the same had not been translated into an order of the
      Government of India.  Shri Atul Y. Chitale argued that the High  Court
      rightly refused to entertain the appellants’ challenge to the order of
      Vice-Chairman, DDA because the principal grievance made by them in the
      matter of allotment of  site  to  respondent  No.4  had  already  been
      negatived.

      14.   We have considered the respective arguments and scrutinized  the
      record.  It is not in dispute that the  writ  petition  filed  by  the
      appellants for quashing notification  dated  20.9.1995  by  which  the
      Master Plan had been amended permitting use of  Nursery  School  sites
      for other purposes was dismissed by the Division  Bench  of  the  High
      Court  and  their  challenge  to  the  allotment  made  in  favour  of
      respondent No.4 was also rejected. It is also not in dispute that  the
      appellants carried the matter to this Court but could not succeed  and
      the special leave petition filed by them was dismissed  after  hearing
      counsel for the parties.  Therefore, the representation made  by  them
      to the Chairman, DDA for withdrawing the allotment made in  favour  of
      respondent No.4 was clearly misconceived and the High  Court  did  not
      commit any error by refusing to entertain the appellants’  prayer  for
      quashing the allotment of the site to respondent No.4.

      15.   The appellants got an opportunity to indulge in another round of
      litigation because the advocate who appeared on behalf of  DDA  before
      the High Court volunteered to make a statement that the  Vice-Chairman
      would take necessary decision in the light of note dated 2.12.1999  of
      the Minister of Urban Development.  It is impossible for any person of
      ordinary prudence to accept the suggestion that the counsel  appearing
      for the DDA was unaware of the fate  of  the  writ  petition  and  the
      special  leave  petition   filed   by   the   appellants   questioning
      notification dated 20.9.1995 and  the  allotment  made  in  favour  of
      respondent No.4. This being the position, there is no escape from  the
      conclusion that the undertaking  given  by  the  learned  counsel  was
      totally uncalled for and the order passed by  Vice-Chairman,  DDA  did
      not entitle the appellants to file fresh writ petition for questioning
      the rejection of their representation  or  for  quashing  notification
      dated 20.9.1995 and the allotment made in favour of respondent No.4.

      16.    The  note  recorded  by  the  Minister,  Urban  Development  on
      2.12.1999 did not have any legal sanctity and the same could not  have
      been relied upon by the appellants for  seeking  cancellation  of  the
      allotment made in favour of respondent No.4 in 1997 because  no  order
      was issued on the basis of that note and no  notification  was  issued
      withdrawing the amendment made in the Master  Plan  vide  notification
      dated 20.9.1995.

      17.   In Shanti Sports Club and another v. Union of India  and  others
      (supra), a similar question was considered in the  context  of  noting
      recorded by the then Minister, Urban Development for  release  of  the
      acquired land  in  favour  of  the  appellant.  
While  rejecting  the
      appellants’ prayer, this Court referred to the earlier  judgments  and
      held:

           “All executive actions  of  the  Government  of  India  and  the
           Government of a State are required to be taken in  the  name  of
           the President or the Governor of the  State  concerned,  as  the
           case may be  [Articles  77(1)  and  166(1)].  Orders  and  other
           instruments made and executed in the name of  the  President  or
           the Governor of a State, as the case may be, are required to  be
           authenticated in such manner as may be specified in rules to  be
           made by the President or  the  Governor,  as  the  case  may  be
           [Articles 77(2) and 166(2)]. Article 77(3) lays down that:

                 “77. (3) The  President  shall  make  rules  for  the  more
                 convenient transaction of the business of the Government of
                 India, and for the allocation among Ministers of  the  said
                 business.”


           Likewise, Article 166(3) lays down that:

                 166. (3)  The  Governor  shall  make  rules  for  the  more
                 convenient transaction of the business of the Government of
                 the State, and for the allocation among  Ministers  of  the
                 said business insofar as it is not business with respect to
                 which  the  Governor  is  by  or  under  this  Constitution
                 required to act in his discretion.”


           This means that unless an order is expressed in the name of  the
           President or the Governor and is  authenticated  in  the  manner
           prescribed by the rules, the same cannot be treated as an  order
           on behalf of the Government.


           A noting recorded in the file is merely a noting simpliciter and
           nothing more. It merely represents expression of opinion by  the
           particular individual. By no stretch of imagination, such noting
           can be treated as a decision of  the  Government.  Even  if  the
           competent authority records its  opinion  in  the  file  on  the
           merits of the matter under consideration,  the  same  cannot  be
           termed as a decision of the Government unless it  is  sanctified
           and acted upon by issuing an order in accordance  with  Articles
           77(1) and (2) or Articles 166(1) and (2). The noting in the file
           or even a decision gets culminated into an order affecting right
           of the parties only when it is expressed  in  the  name  of  the
           President or the Governor, as the case may be, and authenticated
           in the manner provided in Article 77(2)  or  Article  166(2).  A
           noting or even a decision recorded in the  file  can  always  be
           reviewed/reversed/overruled or overturned and the  court  cannot
           take cognizance of the earlier noting or decision  for  exercise
           of the power of judicial review.”
                                                         (emphasis supplied)



      18.   By applying the ratio of the aforesaid judgment to the facts  of
      this case, we hold that note dated 2.12.1999 recorded by the Minister,
      Urban Development cannot be made basis for quashing the allotment made
      in favour of respondent No.4.

      19.   In the result, the appeal is dismissed.


                                              …………………………..J.
                                              (G.S. SINGHVI)



                                                         ………………………….J.
                                                   (V. GOPALA GOWDA)
      New Delhi;
      September 6, 2013.


      -----------------------
13

whether the appellant, Nagar Panchayat, Kurwai (in Civil Appeal No.7821 of 2013 @ SLP(C) No.20997 of 2008) is justified in demanding any fee, for the parking of the motor, trucks and buses in the bus stand, owned and maintained by the Nagar Panchayat. 3. The High Court held that Nagar Panchayat has no power to collect that amount and allowed the writ appeal against which the Nagar Panchayat has come up with this appeal.= Section 358(7)(m) of the Madhya Pradesh Municipalities Act, 1961 is extracted hereinbelow: “358(7)(m) : regulating and prohibiting the stationing of carts or picketing of animals on any ground under the control of the Council or the using of such ground as halting place of vehicles or animals or as a place for enactment or the causing or permitting of any animal to stay and imposition of fee for such use.”= The High Court of Madhya Pradesh at Jabalpur disposed of the Writ Appeal No.147 of 2010 placing reliance on the Judgment of this Court in Municipal Council, Bhopal (supra). The facts of Civil Appeal No.7822 of 2013 @ SLP(C) No.18332 of 2010 are also identical. Since we have found no illegality in demanding the parking fee in using the Bus stand in Civil Appeal No. 7821 of 2013 @ SL(C) No.20997 of 2008, Civil Appeal No.7822 of 2013 @ SLP(C) No.18332 of 2010 is liable to be allowed. Consequently, both the appeals are allowed. The judgments of the High Court are accordingly set aside and the Resolution passed by the appellants imposing the bus stand fee is upheld. However, there will be no order as to costs.

                         published in   http://judis.nic.in/supremecourt/imgst.aspx?filename=40736                                   
  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 7821 OF 2013
                  (Arising out of SLP(C) No.20997 of 2008)

Nagar Panchayat, Kurwai & Anr.                            … Appellants

                 Versus

Mahesh Kumar Singhal and others                   … Respondents

                                    With

                        CIVIL APPEAL NO. 7822 OF 2013
                  (Arising out of SLP(C) No.18332 of 2010)

                               J U D G M E N T

K.S. RADHAKRISHNAN, J.


1.    Leave granted.

2.    We are  in  these  cases  concerned  with  the  question  whether  the
appellant, Nagar Panchayat, Kurwai  (in  Civil  Appeal  No.7821  of  2013  @
SLP(C) No.20997 of 2008) is justified in demanding any fee, for the  parking
of the motor, trucks and buses in the bus stand,  owned  and  maintained  by
the Nagar Panchayat.

3.    The High Court held that Nagar Panchayat has no power to collect  that
amount and allowed the writ appeal against which  the  Nagar  Panchayat  has
come up with this appeal.

 4.   The appellant in  exercise  of  the  powers  conferred  under  Section
357(3) read with Section 349(2), 357 (5) and 358(4) (b) and  (d)  of  Madhya
Pradesh Municipality Act,  1961,  imposed  parking  fee  on  the  owners  of
vehicles, motors, trucks, buses, matadors etc.  Following that a notice  was
issued by the appellant demanding Rs.20/- per day  or  Rs.600/-  per  month,
imposing entry fees on motors, trucks, buses and matadors parked in the  bus
stand.  Challenging the same, writ petition was  preferred  by  the  vehicle
owners before the High Court of Madhya Pradesh at Jabalpur, seeking  a  writ
of certiorari to quash the above-mentioned bye-law and also for a  direction
to the Nagar Panchayat not to collect any fees from  the  petitioners.   The
learned Single Judge found no merit  in  the  writ  petition  and  same  was
dismissed on 10.07.2007.  Aggrieved by the same, writ  petitioners  took  up
the matter in Writ Appeal No.458 of 2007, which was allowed by the  Division
Bench, holding that Section 349 of Act of 1961 does not confer any power  to
impose the licence fees for the use  of  bus  stand  and  the  same  is  not
covered under Sections 358(4)(b) and (d) or (7) (m)  of  the  Act  of  1961.
Respondents are merrily using the bus stand  owned  and  maintained  by  the
Nagar Panchayat, free of cost,  not  bothering  about  its  maintenance  and
upkeep.   The  question  is,  can  a  court,  on  the  basis  of   such   an
interpretation sideline the larger public interest and  deny  the  right  of
the Nagar Panchayat to claim parking fees which  can  be  utilized  for  the
benefit of people?

5.    We,  before  examining  the  question,  shall  not  forget  the  basic
fundamental principle that nobody has a fundamental right to  use  the  land
belonging to another without the latter’s permission or paying  for  it,  if
demanded.

6.    The respondents are operating their vehicles with the  stage  carriage
permits granted by the competent authority under  the  Motor  Vehicles  Act.
As per the provisions of the Motor Vehicles Act the State Government or  any
other authorized authority has jurisdiction to determine a place at which  a
motor vehicle be parked, either indefinitely or for  a  specified  time  for
taking up and alighting passengers.  Rule 203 and  Rule  204  of  the  Motor
Vehicles Rules, 1994 provide for maintenance and management of  the  parking
places and make the concerned local authorities  responsible  for  the  said
purpose.  As per the conditions of the permit they are required to  commence
the journey of their vehicles from the bus stand or place fixed for  getting
and alighting passengers.  Such a condition has been imposed on the  licence
by the authorities under  the  Motor  Vehicles  Act  since  operators  would
commence the journey of their respective vehicles on  the  routes  from  the
bus stand only and would not stop  the  vehicles  on  the  streets,  causing
inconvenience to the public.  Since vehicle operators started using the  bus
stand,  Nagar  Panchayat  passed  the  Resolution,  as  already   indicated,
charging the parking fees for the purpose of maintaining of  bus  stand  and
providing  other  facilities.   Bus  stand,  as   already   indicated,   was
constructed on the land owned by the Nagar Panchayat.

7.    The Constitution (74th Amendment) Act, 1992 Part IXA which deals  with
Municipality, came into force on  20.04.1993.   Article  243P(e),  243Q  and
Article 243W(a)(1)(4) are relevant and hence extracted below:
      “243P(e):   “Municipal”  means  an  institution   of   self-government
      constituted under Article 243Q.
243Q.   Constitution of Municipalities.-(1) There shall be constituted in
every State,-

(a)  a  Nagar Panchayat (by whatever name called) for  a  transitional
area,  that  is to say, an area in transition from a rural area to  an
urban area;

(b)  a Municipal Council for a smaller urban area; and

(c)  a  Municipal Corporation for a larger urban area,

in accordance with the provisions of this Part:

      243W – Powers, authority and responsibilities of Municipalities,  etc.
      – Subject to the provisions of this Constitution, the Legislature of a
      State may, by law, endow –


   a) The Municipalities with such powers and authority as may be  necessary
      to enable them to function as institutions of self-government and such
      law  may  contain  provisions  for  the  devolution  of   powers   and
      responsibilities upon Municipalities, subject to  such  conditions  as
      may be specified therein, with respect to –


        i) the preparation of plans for  economic  development  and  social
           justice;



       ii) the performance of functions and the implementation  of  schemes
           as may be entrusted to them including those in relation  to  the
           matters listed in the Twelfth Schedule.


   b) The Committees with such powers and authority as may be  necessary  to
      enable them to  carry  out  the  responsibility  conferred  upon  them
      including those in relation to  the  matters  listed  in  the  Twelfth
      Schedule.”



Twelfth Schedule was inserted w.e.f. 01.06.1993.  Entry 17 therein reads  as
follows:
      “Entry 17 – Public amenities including street lighting, parking lots,
      bus stops and public conveniences.”

8.    Nagar Panchayat is, therefore, a unit of self-government, which  is  a
sovereign body having both constitutional  and  statutory  status.   Article
243Q and 243W(a)(i) and  (ii)  read  with  Entry  17,   confer  considerable
powers on the Nagar Panchayat to carry  out  various  schemes  for  economic
development and social justice. Municipalities need funds for  carrying  out
the various welfare activities and for  the  said  purpose,  it  can  always
utilize its assets in a profitable manner to its advantage so  that  various
welfare activities entrusted to it under law  could  be  properly  addressed
and implemented.  Bus stand has been provided by  the  Nagar  Panchayat  for
the benefit of all  vehicle  owners  and  the  passengers,  spending  public
money.  Nagar Panchayat has to get a reasonable return for  its  upkeep  and
maintenance.


9.    We may, in this connection, refer to the decision  of  this  Court  in
Municipal Board, Hapur and others v. Jassa Singh and others  (1996)  10  SCC
377,  wherein  this  Court  while  interpreting  the  provisions   of   U.P.
Municipalities  Act,  1916  in  the  light  of  the   Constitutional   (73rd
Amendment) Act, 1992 (actually 74th Amendment Act) upheld the right  of  the
Municipality in levying the bus stand fee  in  respect  of  stage  carriage.
The operative portion of the same reads as follows:
      “Even under the recent amendment brought  by  the  Constitution  (73rd
      Amendment) Act, 1992  which  came  into  force  w.e.f.  20-4-1993,  it
      imposes the statutory responsibilities on the municipalities.  Article
      243-P(d) defines “municipal area” to mean the territorial  area  of  a
      municipality as is  notified  by  the  Governor.  Article  243-W(a)(i)
      envisages that subject to the  provisions  of  the  Constitution,  the
      legislature of a State may, by law, endow the municipalities with such
      powers and authority as may be necessary to enable them to function as
      institutions of self-government and such law  may  contain  provisions
      for the devolution of powers and responsibilities upon municipalities,
      subject to such conditions, as may be specified therein, with  respect
      to the preparation  of  plans  for  economic  development  and  social
      justice.  Entry  17  of  the  Twelfth  Schedule  provides  for  public
      amenities including  street  lighting,  parking  lots,  bus-stops  and
      public conveniences. Thus, the Constitution  enjoins  the  appropriate
      legislature to provide for  preparation  of  the  plans  for  economic
      development and social  justice  including  power  to  provide  public
      amenities including  street  lighting,  parking  lots,  bus-stops  and
      public conveniences. On  such  public  amenities  including  bus-stops
      having been provided by the municipalities, as is a statutory duty, it
      is the duty of the user thereof to pay fee for service rendered by the
      municipality.”



10.   Vehicle owners  placing  reliance  on  the  Judgments  of  this  court
reported  in  Municipal  Council,  Bhopal  v.   Sindhi  Sahiti  Multipurpose
Transport Co-op. Society  Ltd. and another (1973) 2 SCC  478  and  Municipal
Council, Manasa v. M.P. State Road Transport Corpn. And  another  (1997)  11
SCC 640, questioned the powers of  the  Nagar  Panchayat  in  demanding  the
parking fee, while using the bus stand and enjoying the facilities.

11.   Noticeably  both  the  above-mentioned  Judgments  were  dealing  with
demands made prior to the  Constitutional  (74th  Amendment)  Act,  1992  by
which Part IXA was incorporated.

12.   This Court in  Municipal  Council,  Bhopal  (supra),  held  that  M.P.
Municipal Council Act does not empower a municipality  to  pass  a  bye  law
declaring certain place as a Municipal  bus  stand  and  cannot  compel  the
persons plying motor buses or for hire to park  the  buses  anywhere  within
the municipal limits except at the municipal bus stand for  the  purpose  of
taking up or setting down of passengers.   Court  further  held  that  if  a
Municipality provides for a Bus stand without compelling anybody to use  it,
a fee can be charged on bus operators using it  voluntarily.   In  Municipal
Council, Manasa, the question which came up for consideration was whether  a
municipal council is competent to levy toll tax on motor  vehicles  in  view
of the provisions  contained  in  Section  6  of  the  M.P.  Motor  Vehicles
Taxation Act, 1947, which has been extended to the  whole  of  M.P.  by  the
Madhya Pradesh Taxation Laws (Extension) Act,  1957.   The  Court  took  the
view that Madhya Pradesh Motor Vehicles Taxation Act is a special  enactment
while the Madhya Pradesh Municipalities Act is a general enactment and  that
the provisions of Section 127(1)(iii) and Section 6 are to be read in a  way
that both can stand together.  Consequently, the words
“tax on  vehicles”  used  in  Section  127(1)(iii)  of  the  Madhya  Pradesh
Municipalities Act was held to mean vehicles other than motor vehicles.


13.   Above-mentioned Judgments, on facts as well as on law,  do  not  apply
to the facts of the  present  case,  especially  in  view  of  to  the  74th
Constitutional Amendment and in  view  of  Section  358(7)(m)  of  the  M.P.
Municipality Act, which was not properly addressed in those cases.

14.   We have already dealt  with  the  scope  of  the  74th  Constitutional
Amendment Act.  Section 358(7)(m), has to  be  read  in  the  light  of  the
Constitutional Amendment Act.  Clause 7(m) of  Section  358  of  the  Madhya
Pradesh Municipalities Act, 1961, empowers the municipality to  regulate  or
prohibit the use of any ground under its control  and  it  does  not  compel
anybody to use it as halting place of vehicles.
Section  358(7)(m)  of  the
Madhya Pradesh Municipalities Act, 1961 is extracted hereinbelow:
      “358(7)(m) : regulating and prohibiting the  stationing  of  carts  or
      picketing of animals on any ground under the control of the Council or
      the using of such ground as halting place of vehicles or animals or as
      a place for enactment or the causing or permitting of  any  animal  to
      stay and imposition of fee for such use.”

Article 243W(a)(i) and (ii) read with Entry 17 of the Twelfth  Schedule  and
clause (7)(m) of Section 358 and the general principle  that  nobody  has  a
fundamental right to use the land belonging to another without the  latter’s
permission or paying for it, if demanded, in our view, give ample powers  to
the Nagar Panchayat to impose parking fee for parking the  vehicles  in  the
Bus stand owned and maintained by  it.    Needless  to  say,  if  the  Nagar
Panchayat is demanding exorbitant or unreasonable parking  fee  without  any
quid pro quo, the same can always be challenged in accordance with law.

15.   The High Court of Madhya Pradesh at  Jabalpur  disposed  of  the  Writ
Appeal No.147 of 2010 placing reliance on the  Judgment  of  this  Court  in
Municipal Council, Bhopal (supra).  
The facts of Civil  Appeal  No.7822   of
2013 @ SLP(C) No.18332 of 2010 are also identical.  
Since we have  found  no
illegality in demanding the parking fee in using  the  Bus  stand  in  Civil
Appeal No. 7821 of 2013 @ SL(C) No.20997 of 2008, Civil  Appeal  No.7822  of
2013 @ SLP(C) No.18332 of 2010 is liable to be allowed.  Consequently,  both
the appeals are allowed.  
The judgments of the High  Court  are  accordingly
set aside and the Resolution passed  by  the  appellants  imposing  the  bus
stand fee is upheld. However, there will be no order as to costs.

                                             …………………………….J.
                                             (K.S. Radhakrishnan)




                                                              ………………………………J.
                                             (A.K. Sikri)
New Delhi,
September 6, 2013.