Retail Dealership - Hindustan Petrol corporation - Rejecting the selection order before communication on mere technicality is not sound -After the interview, her name was on top of the results list and she was shown as selected. She was awarded 35 marks under the head ‘Land and Infrastructure’. Later, the respondents made an about turn and declared that she was ineligible as she had given the consent letters of the co-owners after the due date and hence, the marks awarded under ‘Land and Infrastructure’ were reduced to zero.- High court dismissed the writ - Apex court held that we hold that the respondent-Corporation, being an instrumentality of the State has acted unfairly in the present case in cancelling the selection of the appellant for the retail outlet dealership in question and not issuing the letter of intent to her. The appellant has competed for the appointment and was selected fairly after satisfying the requirements. Therefore, we direct the respondents to restore the appointment to the appellant within six weeks from the date of receipt of the copy of this order.The appeal is accordingly allowed on the above terms with no order as to costs. = SUNITA GUPTA ……….APPELLANT Vs. UNION OF INDIA & ORS. ………RESPONDENTS= 2014 ( April.Part ) judis.nic.in/supremecourt/filename=41449

Retail Dealership - Hindustan Petrol corporation - Rejecting the selection order before communication on mere technicality is not sound - After the interview, her name was on top of the results list and she was shown as selected.  She  was  awarded  35 marks under the head ‘Land and Infrastructure’.  Later,  the  respondents made an about turn and declared that she was ineligible as she had  given the consent letters of the co-owners after the due date  and  hence,  the marks awarded under ‘Land  and  Infrastructure’  were  reduced  to  zero.- High court dismissed the writ - Apex court held that  we  hold  that   the   respondent-Corporation, being an instrumentality of the State has acted unfairly in the present case in cancelling the selection of the appellant  for the retail outlet dealership in question and not issuing  the  letter of intent to her. The appellant has competed for the appointment  and was selected fairly after satisfying the requirements.  Therefore, we direct the respondents to restore the appointment  to  the  appellant within six weeks from the date of receipt of the copy of this  order.The appeal is accordingly allowed on the above terms with no order as to costs.   =    
   The
  appellant was initially found eligible and was called for the  interview.
  After the interview, she was shown as selected and the visit to the  land
  mentioned along with the application for the dealership was  accepted  as
  sufficient and 35 marks were awarded in that regard. 
Subsequently, it was
  changed to zero, as per clause 12 of the guidelines, on the  ground  that
  consent letters of the co-owners were not submitted before the  due  date
  along with the application but much later and as per the said clause,  no
  addition/deletion or alteration will be permitted in the application once
  it is submitted.
     In our considered viewpoint, this  approach  of  the  respondents  was
  erroneous as the application form of the appellant was initially accepted
  along with the consent letters of her husband and father-in-law  to  whom
  the land belonged and the site visit was completed satisfactorily and she
  was called in for the interview. 
After the interview, her name was on top
  of the results list and she was shown as selected.  She  was  awarded  35
  marks under the head ‘Land and Infrastructure’.  Later,  the  respondents
  made an about turn and declared that she was ineligible as she had  given
  the consent letters of the co-owners after the due date  and  hence,  the
  marks awarded under ‘Land  and  Infrastructure’  were  reduced  to  zero.
  Hence, the review order passed by the respondents is bad in  law  as  the
  appellant was originally found to have fulfilled all the criteria for the
  land offered which was greater in area than the land required as per  the
  rules and guidelines of the respondent Corporation. 
The review committee,
  on a mere technicality, denied the appellant her right to the dealership,
  after it was previously declared that she was selected for the  same. 
 It
  is evident that the documents the appellant provided at first  were  seen
  to be sufficient, and the fact that she chose  to  give  some  additional
  documents to buttress her application cannot be a ground to  nullify  her
  appointment, given that clause 14, ‘Preference  for  applicants  offering
  suitable land’ of the HPCL “Guidelines for  Selection  of  Retail  Outlet
  Holders” details that  the  land  owned  by  the  family  members  namely
  spouse/unmarried children will also be considered subject to the  consent
  of the concerned family member. 
Since, in this case, the land  was  owned
  by her husband and father-in-law, she gave their  consent  letters  along
  with the application form within the due date. 
We feel that the appellant
  has sufficiently met the conditions of the application and the respondent
  Corporation has erred in subsequently cancelling  the  appointment  on  a
  flimsy technicality and has acted in an arbitrary and unfair  manner.  It
  is relevant to quote the case of Mahabir Auto Stores & Ors. v. Indian Oil
  Corporation and Ors.[1], wherein it was held that -
      “Having regard to the nature  of  the  transaction,  we  are  of  the
      opinion that it would be  appropriate to state that  in  cases  where
      the instrumentality of the state enters  the  contractual  field,  it
      should be governed by the incidence of the contract. It is true  that
      it may not be necessary to give reasons but, in our opinion,  in  the
      field of this nature fairness must be there to the parties concerned,
      and having regard to the large number or  the  long  period  and  the
      nature of the dealings between the parties, the appellant should have
      been taken into confidence. Equality and fairness  at  least  demands
      this much from an instrumentality of the State dealing with  a  right
      of the State not to  treat  the  contract  as  subsisting.  We  must,
      however, evolve such process which will work.”


  For  the  reasons  stated  supra,  we  hold  that   the   respondent-
  Corporation, being an instrumentality of the State has acted unfairly
  in the present case in cancelling the selection of the appellant  for
  the retail outlet dealership in question and not issuing  the  letter
  of intent to her. The appellant has competed for the appointment  and
  was selected fairly after satisfying the requirements.  Therefore, we
  direct the respondents to restore the appointment  to  the  appellant
  within six weeks from the date of receipt of the copy of this  order.
  The appeal is accordingly allowed on the above terms with no order as
  to costs.       
2014 ( April.Part ) judis.nic.in/supremecourt/filename=41449
GYAN SUDHA MISRA, V. GOPALA GOWDA

                                             NON-REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION


                        CIVIL APPEAL NO.4681 OF 2014
                  (Arising out of SLP(C) NO. 25020 OF 2009)




           SUNITA GUPTA                              ……….APPELLANT


                                     Vs.


  UNION OF INDIA & ORS.                   ………RESPONDENTS





                               J U D G M E N T






  V.Gopala Gowda J.


      Leave granted.


  2. The present appeal arises out of the impugned judgment and order dated
  21.07.2009 passed by the High Court of Judicature at  Allahabad  in  W.P.
  No. 5199 of 2007 whereby the High Court dismissed the writ petition filed
  by the appellant on the  ground  that  the  orders  dated  27.7.2006  and
  26.12.2006 passed by the respondents do not suffer  from  any  infirmity,
  illegality or error in law  and  they  are  perfectly  justified  and  in
  accordance with the guidelines prescribed in this  regard  and  therefore
  the same do not require interference by the High Court.
  3. The facts in brief are stated hereunder:
      The Hindustan Petroleum Corporation Limited issued  an  advertisement
  in the newspaper “Amar Ujala” dated 20.7.2005 inviting  applications  for
  opening its retail outlet in the said location in the category  of  open-
  W(women) by 22.8.2005, and in pursuance of the above  advertisement,  the
  appellant submitted an  application  on  18.8.2005  along  with  all  the
  relevant documents and demand draft of Rs.1,000/-  for  grant  of  retail
  outlet. Thereafter, the team of the Corporation visited  the  appellant’s
  site and submitted its report to the office. The Corporation after  being
  satisfied with the location of the land,  called  the  appellant  for  an
  interview vide letter dated 10.2.2006 and she appeared for the  interview
  on 3.3.2006 before the selection committee constituted by the respondent.
  On the same day, a list was displayed on the notice board  in  which  the
  appellant’s name was first on the list and she was shown as selected.
      The appellant was waiting for a letter of intent but then on 7.8.2006
  she received a registered letter dated 27.7.2006  issued  by  the  Deputy
  General Manager in-charge North Zone, wherein it was mentioned  that  the
  respondents decided to set aside the entire interview and  selection  and
  called for a fresh interview to be conducted. The appellant got 35  marks
  awarded for ‘Land and infrastructure’ as indicated in  the  letter  dated
  27.7.2006 but it was  mentioned  that  the  selection  committee  wrongly
  awarded 35 marks as zero marks should have been awarded for land  because
  no consent was obtained from the owners of the land.


  4. Aggrieved by the same, the appellant filed Writ  Petition  No.5199  of
  2007 praying for a writ of certiorari to quash the orders dated 27.7.2006
  and 26.12.2006. The relief of writ of mandamus has also  been  sought  to
  direct the respondents for issuing a letter of intent to the appellant in
  pursuance of her selection dated 3.3.2006 for retail outlet dealership at
  Islam Nagar-Bisauli Marg, and further to direct the respondents to  issue
  necessary HSD and MSD for her retail outlet dealership.  Prior  to  this,
  the appellant filed W.P No. 56740 of 2006 praying for quashing  of  order
  dated 27.7.2006. The High Court, vide order  dated  12.10.2006,  directed
  the appellant to file a fresh comprehensive representation along with the
  certified copy of the order as well  as  a  complete  copy  of  the  writ
  petition with all Annexures  before  the  concerned  competent  authority
  within two weeks from the date of the order and on such a  representation
  being filed as stipulated, the concerned competent authority shall decide
  the same within eight weeks of the receipt of the representation by means
  of a reasoned order. Subsequent to this, vide order dated 26.12.2006, the
  respondent-Corporation constituted a review committee and stated that the
  land held by the appellant is jointly held in her  husband’s  name  along
  with four others and consent letter from her husband and his father  have
  been  obtained,  but  not  from  the  other  owners.   Accordingly,   the
  appellant’s representation was held to be disposed off in  compliance  of
  the order of  the  High  Court  dated  12.10.2006.  The  appellant  being
  aggrieved by the aforesaid orders has filed the  present  appeal,  urging
  certain legal and factual grounds.


  5. The learned counsel for the appellant has contended that the  decision
  to cancel the selection of the appellant is void for breach of principles
  of natural justice as the appellant was not afforded  an  opportunity  of
  hearing by the so-called Review Committee and the same is ultra vires  of
  Article 14 of the Constitution of India. It was  further  contended  that
  there is no whisper  of  the  Review  Committee  in  the  guidelines  and
  therefore it did not have the jurisdiction to  sit  in  appeal  over  the
  selection. It was argued that the land map issued  by  the  Consolidation
  Officer which was annexed by the appellant  along  with  her  application
  form, showing the plot in question, has been divided  into  three  parts,
  out of which the middle part  belongs  to  the  appellant  and  that  the
  husband’s and father-in-law’s consent was there for the  same  and  also,
  the land required was only 900 sq.m. but the appellant had proposed  land
  of an area of 2980 sq.m. and as such there was no occasion or requirement
  to submit the consent letters of other co-owners when  proposed  land  of
  appellant’s husband was in excess of the required land.  It  was  further
  argued that the order passed by the respondent no.3 is bad in law as  the
  High Court  vide  its  order  dated  12.10.2006  directed  the  competent
  authority  of  the  Corporation  to  decide  the  representation  of  the
  appellant and not  respondent  no.3.  The  appellant  also  obtained  the
  consent letters from all the co-owners on 11.04.2006.


  6. The learned counsel for the respondent on the  other  hand,  contended
  that the appellant did not submit  complete  documents  as  required  and
  failed to submit the consent letters of the  co-owners  of  the  proposed
  land, as a result of which the selection of the appellant  was  cancelled
  by order dated  27.7.2006  and  finally  decided  on  26.12.2006  as  the
  appellant overlooked the document dated 10.2.2006 which demonstrated that
  all the documents were to be  placed  before  the  interview  board.  The
  condition of submission of consent letters of all co-owners of  the  land
  was part and parcel of the  conditions  mentioned  in  the  advertisement
  dated  20.7.2005,  a  mandatory  requirement  under  Clause  14  of   the
  dealership guidelines and it  was  apparent  from  paragraph  13  of  the
  advertisement as well as in the application form itself. It was submitted
  that since the consent letters of the co-owners  of  the  land  were  not
  submitted along with the application  form,  the  selection  was  rightly
  cancelled and 35 marks awarded to the appellant under  the  parameter  of
  land and infrastructure facility was wrong and the same was rectified  by
  awarding zero marks. It  was  further  submitted  that  the  order  dated
  27.7.2006 was passed after affording full opportunity of hearing  to  the
  appellant. It was urged that the appellant  has  wrongly  challenged  the
  impugned orders as a violation of her fundamental rights.
  7. We have heard  the  rival  legal  contentions  for  the  parties.  The
  appellant was initially found eligible and was called for the  interview.
  After the interview, she was shown as selected and the visit to the  land
  mentioned along with the application for the dealership was  accepted  as
  sufficient and 35 marks were awarded in that regard. Subsequently, it was
  changed to zero, as per clause 12 of the guidelines, on the  ground  that
  consent letters of the co-owners were not submitted before the  due  date
  along with the application but much later and as per the said clause,  no
  addition/deletion or alteration will be permitted in the application once
  it is submitted.
     In our considered viewpoint, this  approach  of  the  respondents  was
  erroneous as the application form of the appellant was initially accepted
  along with the consent letters of her husband and father-in-law  to  whom
  the land belonged and the site visit was completed satisfactorily and she
  was called in for the interview. After the interview, her name was on top
  of the results list and she was shown as selected.  She  was  awarded  35
  marks under the head ‘Land and Infrastructure’.  Later,  the  respondents
  made an about turn and declared that she was ineligible as she had  given
  the consent letters of the co-owners after the due date  and  hence,  the
  marks awarded under ‘Land  and  Infrastructure’  were  reduced  to  zero.
  Hence, the review order passed by the respondents is bad in  law  as  the
  appellant was originally found to have fulfilled all the criteria for the
  land offered which was greater in area than the land required as per  the
  rules and guidelines of the respondent Corporation. The review committee,
  on a mere technicality, denied the appellant her right to the dealership,
  after it was previously declared that she was selected for the  same.  It
  is evident that the documents the appellant provided at first  were  seen
  to be sufficient, and the fact that she chose  to  give  some  additional
  documents to buttress her application cannot be a ground to  nullify  her
  appointment, given that clause 14, ‘Preference  for  applicants  offering
  suitable land’ of the HPCL “Guidelines for  Selection  of  Retail  Outlet
  Holders” details that  the  land  owned  by  the  family  members  namely
  spouse/unmarried children will also be considered subject to the  consent
  of the concerned family member. Since, in this case, the land  was  owned
  by her husband and father-in-law, she gave their  consent  letters  along
  with the application form within the due date. We feel that the appellant
  has sufficiently met the conditions of the application and the respondent
  Corporation has erred in subsequently cancelling  the  appointment  on  a
  flimsy technicality and has acted in an arbitrary and unfair  manner.  It
  is relevant to quote the case of Mahabir Auto Stores & Ors. v. Indian Oil
  Corporation and Ors.[1], wherein it was held that -
      “Having regard to the nature  of  the  transaction,  we  are  of  the
      opinion that it would be  appropriate to state that  in  cases  where
      the instrumentality of the state enters  the  contractual  field,  it
      should be governed by the incidence of the contract. It is true  that
      it may not be necessary to give reasons but, in our opinion,  in  the
      field of this nature fairness must be there to the parties concerned,
      and having regard to the large number or  the  long  period  and  the
      nature of the dealings between the parties, the appellant should have
      been taken into confidence. Equality and fairness  at  least  demands
      this much from an instrumentality of the State dealing with  a  right
      of the State not to  treat  the  contract  as  subsisting.  We  must,
      however, evolve such process which will work.”


  For  the  reasons  stated  supra,  we  hold  that   the   respondent-
  Corporation, being an instrumentality of the State has acted unfairly
  in the present case in cancelling the selection of the appellant  for
  the retail outlet dealership in question and not issuing  the  letter
  of intent to her. The appellant has competed for the appointment  and
  was selected fairly after satisfying the requirements.  Therefore, we
  direct the respondents to restore the appointment  to  the  appellant
  within six weeks from the date of receipt of the copy of this  order.
  The appeal is accordingly allowed on the above terms with no order as
  to costs.

                       ………………………………………………………………………J.
                        [GYAN SUDHA MISHRA]




                       ………………………………………………………………………J.
                         [V. GOPALA GOWDA]
 New Delhi,
 April 22, 2014
-----------------------
[1]    (1990) 3 SCC 752


-----------------------
11

Accident claim - M.V.Act - Death - [([pic]7330+30/100 x [pic]7330) x 12 x 13] = [pic]14,86,524/-.]-([pic]14,86,524/- - 1/3 x [pic]14,86,524/-) = [pic]9,91,016/- compensation of [pic]1,00,000/- each towards loss of consortium and towards loss of love - [pic]1,00,000/- towards loss of expectation of the life of the deceased. We also award a sum of [pic]50,000/- for funeral expenses and cost of litigation. Therefore, a total sum of [pic]14,51,016/- rounded to 14,51,000/- with 9% interest = KALPANARAJ & ORS. ………APPELLANTS VS. TAMIL NADU STATE TRANSPORT CORPN. ……RESPONDENT = 2014 ( April.Part ) judis.nic.in/supremecourt/filename=41448

  Accident claim - M.V.Act - Death - [([pic]7330+30/100 x  [pic]7330) x 12 x 13] = [pic]14,86,524/-.]-([pic]14,86,524/- - 1/3 x  [pic]14,86,524/-) = [pic]9,91,016/- compensation  of
[pic]1,00,000/- each towards loss of consortium and  towards  loss  of  love - [pic]1,00,000/- towards loss of expectation of the life of the deceased.  We also award a sum of        [pic]50,000/- for funeral expenses  and  cost  of litigation. Therefore, a total sum of   [pic]14,51,016/-  rounded to 14,51,000/- with 9% interest  =

As per the Income Tax return of the financial year 1994-1995 produced  on
record, the deceased was earning  [pic]88,660/- per  annum  or   [pic]7330/-
per month. 
Further, the deceased being 46  years  of  age  at  the  time  of
death, he is entitled to 30% increase in the future prospects of  income  as
per the legal principle laid down by this Court in Santosh Devi v.  National
Insurance Company Ltd. and Ors.[2]

10.   Also, since the deceased was 46 years  of  age  at  the  time  of  the
accident, a multiplier of 13 seems appropriate for determining  the  quantum
of compensation as per the principle laid down by this Court in the case  of
Sarla Verma and Ors. v. Delhi Transport Corporation and Anr.[3]

11. Therefore, the total amount of compensation  the  appellants-  claimants
are entitled to under the head of loss of income is:

[([pic]7330+30/100 x  [pic]7330) x 12 x 13] = [pic]14,86,524/-.]

12.   Further,  since  the  deceased  has  left  behind  his  wife  and  two
children, the amount to be deducted under the head of personal  expenses  is
1/3rd of the total income in the light of the principle laid down  in  Sarla
Verma case (supra) which  was  reiterated  in  Santosh  Devi  case  (supra).
Therefore, the amount to be awarded as compensation to the  appellant  is  =
([pic]14,86,524/- - 1/3 x  [pic]14,86,524/-) = [pic]9,91,016/-.

13.   The  appellant-claimants  sought  an  amount  of         [pic]10,000/-
towards damage  to  the  motorcycle.  Since,  the  claim  has  neither  been
rebutted  with  evidence  by  the  respondent,  we  grant  compensation   of
[pic]10,000/- towards the damage caused to the bike.

14.   Further, the High Court awarded a  sum  of               [pic]30,000/-
towards loss of consortium and  [pic]20,000/- each towards loss of love  and
affection by the minor children. This amount awarded by the  High  Court  is
on the lower side in the light of the principle  laid  down  in  Rajesh  and
Ors. v. Rajbir Singh and Ors.[4] wherein the Court  awarded  [pic]1,00,000/-
towards loss of consortium  and [pic]1,00,000/- towards  loss  of  care  and
guidance to the minor children. Accordingly,  we  award  a  compensation  of
[pic]1,00,000/- each towards loss of consortium and  towards  loss  of  love
and affection.

15.   Apart from this, we award  [pic]1,00,000/- towards loss of estate  and
[pic]1,00,000/- towards loss of expectation of the life of the deceased.  We
also award a sum of        [pic]50,000/- for funeral expenses  and  cost  of
litigation. Therefore, a total sum of   [pic]14,51,016/-  which  is  rounded
off at [pic]14,51,000/- is awarded to the appellants-claimants.

16.   Further, the High Court has awarded  the  compensation  with  interest
@9% per annum. We concur with this holding of the High Court  in  the  light
of the decision of this Court in Municipal Corporation of  Delhi,  Delhi  v.
Uphaar Tragedy Victims  Association  &  Ors.[5]  Accordingly,  we  award  an
interest @ 9% per annum on the compensation to be awarded to the appellants-
 claimants. The  compensation  awarded  shall  be  apportioned  between  the
appellants equally with proportionate  interest.  We  direct  the  Insurance
Company to deposit 50% of the awarded amount with proportionate interest  in
any of the Nationalized Bank of the choice of the appellants  for  a  period
of 3 years. The rest of  50%  amount  awarded  with  proportionate  interest
shall be paid to the appellants by way of a demand draft  within  six  weeks
from the date of receipt of a copy of this order after deducting the  amount
if already paid.  During the  said  period,  if  they  want  to  withdraw  a
portion  or  entire  deposited  amount  for  their  personal  or  any  other
expenses, including development of their asset, then they are at liberty  to
file application before the Tribunal  for release of the  deposited  amount,
which may be considered by it and pass appropriate order in this regard.  We
set aside the impugned judgment and order of the High Court and  modify  the
judgment in the aforesaid terms by allowing this appeal. In  the  facts  and
circumstances of the case, no order as to costs.
2014 ( April.Part ) judis.nic.in/supremecourt/filename=41448
GYAN SUDHA MISRA, V. GOPALA GOWDA

                                                  REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION


                        CIVIL APPEAL NO. 3461 of 2003






KALPANARAJ & ORS.                            ………APPELLANTS

                                     VS.

TAMIL NADU STATE TRANSPORT CORPN.             ……RESPONDENT




                               J U D G M E N T




V.GOPALA GOWDA, J.


      This appeal is filed by the appellants questioning the correctness  of
the judgment and final Order dated 30.01.2002 passed by the  High  Court  of
Judicature at Madras in Civil Misc. Appeal No. 1487 of 1999, urging  various
facts and legal contentions in justification of their claim.

2.    Necessary relevant facts are stated hereunder to appreciate  the  case
of the appellants and also to find out whether the appellants  are  entitled
for the relief as prayed in this appeal.

3.     The  deceased,  while  going  on  his  motorcycle  from  Vellore   to
Kannamangalam, collided with the bus  of  the  respondent-Corporation  as  a
result of which he sustained fatal injuries and died on the spot. The  legal
representatives of the deceased viz, his wife and two minor  children  filed
M.C.O.P. No. 539 of  1994  contending  that  the  accident  occurred  solely
because of the rash and negligent driving of  the  bus  of  the  respondent-
Corporation. If the driver of the bus had driven the bus  with  carefulness,
there might have been no possibility of dragging  the  deceased  along  with
the motorcycle for a distant of 120 feet. The appellants- claimants  claimed
an amount of  [pic]20  lakhs  compensation  for  the  death  caused  by  the
respondent.

The Tribunal, after considering the material evidence  on  record  of  P.W.1
and P.W. 2 and R.W.1 and the ten exhibits filed on behalf of the  appellant-
claimants, found that the  accident  has  occurred  only  due  to  rash  and
negligent driving of the driver of the bus  of  the  respondent-Corporation.
Therefore, the learned judge, holding the monthly  income  at  [pic]15,000/-
and adopting the multiplier of 18, determined a sum of  [pic]32,40,000/-  as
compensation.  However,  he  restricted   the   sum   of   compensation   to
[pic]20,90,000/-, since that was  the  amount  claimed  by  the  appellants-
claimants. The Tribunal further awarded interest @12% per annum on the  said
amount.

4.    Aggrieved by the Award of  the  Tribunal,  the  respondent-Corporation
filed an appeal challenging the Order  of  the  Tribunal.  The  High  Court,
however, only restricted itself to ascertain as to whether the  compensation
awarded by the Tribunal was excessive. And if so, then what  is  the  amount
to which the appellants- claimants are entitled to.

5.    The High Court opined that the Tribunal  erred  in  relying  upon  the
statement of evidence of the wife of the deceased to determine  the  monthly
income of the deceased at [pic]15,000/- instead of relying upon  the  income
shown in the Income Tax return. Further, the  High  Court  opined  that  the
Tribunal  erred  in  not  deducting  1/3rd  for  personal  expenses  of  the
deceased. Further, according to  the  High  Court,  the  Tribunal  erred  in
determining the multiplier of 18 instead of 13 considering the  age  of  the
deceased which was 46 at the time of the accident.

6.    Accordingly,  the  High  Court  held  that  the  unsubstantiated  oral
evidence alone of P.W.1 cannot be taken into consideration in the  light  of
Exhs. A.8, A.9 and A.10. The monthly income of  the  deceased  is  therefore
taken as [pic]3,115/- per month for computation of the multiplicand  on  the
basis of net average income of the deceased calculated  as  per  the  income
tax return produced as  evidence  on  record.  Therefore,  the  compensation
determined under the head of loss of income  under  the  head  of  ‘loss  of
income’  of  the  deceased   was   determined   by   the   High   Court   at
[pic]4,86,000/-. Further, the High Court has reduced compensation under  the
head  of  funeral  expenses  from     [pic]25,000/-  to  [pic]10,000/-.  The
Tribunal awarded a consolidated amount for loss of  love  and  affection  by
the children, loss  of  income  and  loss  of  consortium  by  the  wife  at
[pic]19,55,000/-. The High Court reduced the compensation under the head  of
‘loss of love and affection’ by the minor children  at  [pic]20,000/-  each.
Also, the amount awarded towards loss of consortium to the wife was  reduced
by the High Court to [pic]30,000/-. Therefore,  in  total,  the  High  Court
awarded a total amount of [pic]5,76,000/- as compensation to the appellants-
claimants. The interest rate was also reduced to 9% per annum  by  the  High
Court from 12% awarded by the Tribunal.

7.    It is pertinent to note that the only available  documentary  evidence
on record of the monthly income of the deceased is  the  income  tax  return
filed by him with the Income Tax Department.  The  High  Court  was  correct
therefore, to determine the monthly income on the basis of  the  income  tax
return. However, the High Court erred in ascertaining the net income of  the
deceased as the amount  to  be  taken  into  consideration  for  calculating
compensation, in the light of the principle laid down by this Court  in  the
case of National Insurance Company Ltd. v.  Indira  Srivastava  and  Ors.[1]
The relevant paragraphs of the case read as under:

        “14. The question came for consideration before  a  learned  Single
        Judge of the Madras High Court in  National Insurance  Co.  Ltd. v.
        Padmavathy and Ors. wherein it was held:
             ‘7…..Income tax, Professional tax which are deducted  from  the
             salaried person goes to the coffers  of  the  government  under
             specific head and there is  no  return.  Whereas,  the  General
             Provident Fund, Special Provident  Fund,  L.I.C.,  Contribution
             are amounts paid specific heads and the contribution is  always
             repayable to an employee at the time of  voluntary  retirement,
             death or for any other reason. Such contribution  made  by  the
             salaried person are deferred payments and they are savings. The
             Supreme Court as well as various High Courts have held that the
             compensation payable under the Motor Vehicles Act is  statutory
             and that  the  deferred  payments  made  to  the  employee  are
             contractual.  Courts  have  held  that  there  cannot  be   any
             deductions  in  the  statutory  compensation,  if   the   Legal
             Representatives are entitled to  lump  sum  payment  under  the
             contractual  liability.  If  the  contributions  made  by   the
             employee which  are  otherwise  savings  from  the  salary  are
             deducted from the gross income and only the net income is taken
             for computing  the  dependency  compensation,  then  the  Legal
             Representatives of the victim would lose  considerable  portion
             of the income. In view of the settled proposition of law, I  am
             of the view, the Tribunal can make  only  statutory  deductions
             such  as  Income  tax  and  professional  tax  and  any   other
             contribution, which is not repayable by the employer, from  the
             salary of the deceased person  while  determining  the  monthly
             income  for  computing   the   dependency   compensation.   Any
             contribution made by the employee during his  life  time,  form
             part of the salary and they should be included in  the  monthly
             income, while computing the dependency compensation.’

        15. Similar view was expressed by a learned Single Judge of  Andhra
        Pradesh High  Court  in S.  Narayanamma  and  Ors. v. Secretary  to
        Government of  India,  Ministry  of  Telecommunications  and  Ors.
        holding:
             13….In  this  background,  now  we  will  examine  the  present
             deductions made by the tribunal from the salary of the deceased
             in fixing the monthly  contribution  of  the  deceased  to  his
             family. The tribunal has  not  even  taken  proper  care  while
             deducting the amounts from the salary of the deceased, at least
             the very nature of deductions from the salary of the  deceased.
             My view is that the deductions made by the  tribunal  from  the
             salary such as recovery of housing loan, vehicle loan, festival
             advance and other deductions, if any, to  the  benefit  of  the
             estate of the deceased cannot be deducted while  computing  the
             net monthly earnings of the deceased. These advances  or  loans
             are part of his salary. So  far  as  House  Rent  Allowance  is
             concerned, it  is  beneficial  to  the  entire  family  of  the
             deceased during his tenure, but  for  his  untimely  death  the
             claimants are deprived of such benefit which  they  would  have
             enjoyed  if  the  deceased  is  alive.  On  the   other   hand,
             allowances,   like   Travelling   Allowance,   allowance    for
             newspapers/periodicals,  telephone,  servant,   club-fee,   car
             maintenance etc.,  by  virtue  of  his  vocation  need  not  be
             included in the salary while computing the net earnings of  the
             deceased. The finding of the tribunal  that  the  deceased  was
             getting Rs.1,401/- as net income every month  is  unsustainable
             as  the  deductions  made  towards  vehicle  loan   and   other
             deductions were also taken into consideration while fixing  the
             monthly income of  the  deceased.  The  above  finding  of  the
             tribunal is contrary to the principle  of  'just  compensation'
             enunciated by the Supreme Court in the judgment in Helen's case
             (1 supra). The Supreme Court in Concord of India Insurance  Co.
             v.  Nirmaladevi   and   Ors. 1980   ACJ   55   (SC) held   that
             determination of quantum must  be  liberal  and  not  niggardly
             since law values life and limb in a free country  'in  generous
             scales'.”

                      (Emphasis laid down by this Court)


8.     In the light of the principle of law laid down by this Court  in  the
Indira Srivastava case mentioned supra, we are of the opinion that the  High
Court erred in making deductions under various heads to arrive at   the  net
income instead of ascertaining the gross income of the deceased out  of  the
annual income earned from his occupation mentioned in the income tax  return
submitted for the relevant financial year 1994-1995.

9. As per the Income Tax return of the financial year 1994-1995 produced  on
record, the deceased was earning  [pic]88,660/- per  annum  or   [pic]7330/-
per month. Further, the deceased being 46  years  of  age  at  the  time  of
death, he is entitled to 30% increase in the future prospects of  income  as
per the legal principle laid down by this Court in Santosh Devi v.  National
Insurance Company Ltd. and Ors.[2]

10.   Also, since the deceased was 46 years  of  age  at  the  time  of  the
accident, a multiplier of 13 seems appropriate for determining  the  quantum
of compensation as per the principle laid down by this Court in the case  of
Sarla Verma and Ors. v. Delhi Transport Corporation and Anr.[3]

11. Therefore, the total amount of compensation  the  appellants-  claimants
are entitled to under the head of loss of income is:

[([pic]7330+30/100 x  [pic]7330) x 12 x 13] = [pic]14,86,524/-.]

12.   Further,  since  the  deceased  has  left  behind  his  wife  and  two
children, the amount to be deducted under the head of personal  expenses  is
1/3rd of the total income in the light of the principle laid down  in  Sarla
Verma case (supra) which  was  reiterated  in  Santosh  Devi  case  (supra).
Therefore, the amount to be awarded as compensation to the  appellant  is  =
([pic]14,86,524/- - 1/3 x  [pic]14,86,524/-) = [pic]9,91,016/-.

13.   The  appellant-claimants  sought  an  amount  of         [pic]10,000/-
towards damage  to  the  motorcycle.  Since,  the  claim  has  neither  been
rebutted  with  evidence  by  the  respondent,  we  grant  compensation   of
[pic]10,000/- towards the damage caused to the bike.

14.   Further, the High Court awarded a  sum  of               [pic]30,000/-
towards loss of consortium and  [pic]20,000/- each towards loss of love  and
affection by the minor children. This amount awarded by the  High  Court  is
on the lower side in the light of the principle  laid  down  in  Rajesh  and
Ors. v. Rajbir Singh and Ors.[4] wherein the Court  awarded  [pic]1,00,000/-
towards loss of consortium  and [pic]1,00,000/- towards  loss  of  care  and
guidance to the minor children. Accordingly,  we  award  a  compensation  of
[pic]1,00,000/- each towards loss of consortium and  towards  loss  of  love
and affection.

15.   Apart from this, we award  [pic]1,00,000/- towards loss of estate  and
[pic]1,00,000/- towards loss of expectation of the life of the deceased.  We
also award a sum of        [pic]50,000/- for funeral expenses  and  cost  of
litigation. Therefore, a total sum of   [pic]14,51,016/-  which  is  rounded
off at [pic]14,51,000/- is awarded to the appellants-claimants.

16.   Further, the High Court has awarded  the  compensation  with  interest
@9% per annum. We concur with this holding of the High Court  in  the  light
of the decision of this Court in Municipal Corporation of  Delhi,  Delhi  v.
Uphaar Tragedy Victims  Association  &  Ors.[5]  Accordingly,  we  award  an
interest @ 9% per annum on the compensation to be awarded to the appellants-
 claimants. The  compensation  awarded  shall  be  apportioned  between  the
appellants equally with proportionate  interest.  We  direct  the  Insurance
Company to deposit 50% of the awarded amount with proportionate interest  in
any of the Nationalized Bank of the choice of the appellants  for  a  period
of 3 years. The rest of  50%  amount  awarded  with  proportionate  interest
shall be paid to the appellants by way of a demand draft  within  six  weeks
from the date of receipt of a copy of this order after deducting the  amount
if already paid.  During the  said  period,  if  they  want  to  withdraw  a
portion  or  entire  deposited  amount  for  their  personal  or  any  other
expenses, including development of their asset, then they are at liberty  to
file application before the Tribunal  for release of the  deposited  amount,
which may be considered by it and pass appropriate order in this regard.  We
set aside the impugned judgment and order of the High Court and  modify  the
judgment in the aforesaid terms by allowing this appeal. In  the  facts  and
circumstances of the case, no order as to costs.



                                  ………………………………………………………………………J.
                                  [GYAN SUDHA MISRA]




                      ………………………………………………………………………J.
                            [V. GOPALA GOWDA]

New Delhi,
April 22, 2014
-----------------------
[1] (2008) 2 SCC 763

[2] (2012) 6 SCC 421

[3] (2009) 6 SCC 121

[4] (2013) 9 SCC 54

[5] (2011) 14 SCC 481

Section 49 of the UP Consolidation of Land Holdings Act and Section 331 of the UP Zamindari Abolition and Land Reforms Act, - when sonship was challenged , a civil suit for declaration of his status and cancellation of Revenue records from the date of Knowledge is maintainable and is not barred by limitation - Apex court held that The appellant has contended that he had no idea about the Consolidation order and was made aware of it only when he asked for his half share of crop which the defendants refused to him, and that he was made to sign an agreement in which he signed over his rights to the property and that he has been taken advantage off due to his illiteracy. We find all this extremely murky and it was incumbent upon the Consolidation Officer to properly enquire into the ownership of the land before recording the defendant’s name in the revenue records. We further hold that the appellant - Amar Nath is entitled to be recorded in the revenue records by the competent authorities as half share owner of the land in dispute, as he has a right to half the share in the property and crops, as it being the ancestral property of his father – Vaij Nath. It has been proved by examining the evidence on record, such as the election identity card, that Amar Nath is indeed the s/o Vaij Nath thereby it has demolished the contention of the defendants that the appellant is not the s/o Vaij Nath.= AMAR NATH ……… APPELLANT Vs. KEWLA DEVI & ANR. ………RESPONDENTS = 2014 ( April.Part ) judis.nic.in/supremecourt/filename=41447

Section 49 of the UP Consolidation of Land Holdings Act and Section  331  of the UP Zamindari Abolition and Land Reforms Act, - when sonship was challenged , a civil suit for declaration of his status and cancellation of Revenue records from the date of Knowledge is maintainable and is not barred by limitation - Apex court held that The appellant  has  contended  that  he  had  no  idea  about  the Consolidation order and was made aware of it only when he  asked  for  his
half share of crop which the defendants   refused to him, and that he  was made to sign an agreement in which  he  signed  over  his  rights  to  the property and that he has been taken advantage off due to  his  illiteracy. We  find  all  this  extremely  murky  and  it  was  incumbent  upon   the Consolidation Officer to properly enquire into the ownership of  the  land before recording the defendant’s name in the revenue records.  We  further hold that the appellant - Amar Nath is entitled  to  be  recorded  in  the revenue records by the competent authorities as half share  owner  of  the land in dispute, as he has a right to half the share in the  property  and
crops, as it being the ancestral property of his father –  Vaij  Nath.  It has been proved by examining the evidence on record, such as the  election identity card, that Amar Nath is indeed the s/o Vaij Nath thereby  it  has demolished the contention of the defendants that the appellant is not  the s/o Vaij Nath.=

a. Whether the High  Court  was  correct  in  deciding  the  appeal
           without formulating substantial questions of law and whether the
           matter must be remitted back to the High Court?

    We do not think it necessary to remit the matter back to the  High  Court
for fresh consideration. We feel it is sufficient to set aside the  impugned
judgment and uphold the well-reasoned judgment of the first appellate  court
where it was held that the very fact that the trial court held that  it  was
proved that Amar Nath was s/o Vaij Nath based on  the  evidence  on  record,
then automatically the court should have  given  half  the  portion  of  the
disputed land to the  appellant  along  with  defendant  no.1,  Kewla  Devi.
Instead, the trial court as well as the Consolidation  Officer  have  passed
judgments that are bad in law as they have failed to see that the  right  of
the appellant cannot simply be extinguished because of the defendants’  plea
that he has entered into a  compromise.  The  defendants  have  taken  undue
advantage of the appellant’s illiteracy and the  Consolidation  Officer  has
abdicated his role  by  allowing  the  objection  of  the  appellant  to  be
withdrawn and by not examining whether or not the appellant was  indeed  the
S/o Vaij Nath who was the S/o Gaya. The order of the  Consolidation  Officer
is thus bad in law and it has resulted in a grave  miscarriage  of  justice.
We think it fit to restore the judgment  and  decree  passed  by  the  first
appellate court wherein the court declared that the appellant, Amar Nath  is
S/o Vaij Nath who was son of Gaya thereby holding that the order  passed  by
the Consolidation Officer is void and illegal and the trial court was  wrong
in not quashing the order of the Consolidation Officer and that  nowhere  in
the revenue record was his name recorded and  fraud  was  committed  against
him as defendant no.1, Kewla Devi has got her  name  recorded  in  each  and
every revenue record.  The judgment of the first appellate  court  is  legal
and valid as it is fair and keeping with  the  principles  of  justice.  The
trial court in its answer to issue nos. 1 and 10 has rightly held that  Amar
Nath is S/o Vaij Nath who was undisputedly the son of Gaya and if that  fact
was proved, then  we  see  no  reason  why  it  was  not  directed  for  the
appellant’s name to be recorded in the revenue records.  The  right  of  the
appellant over the suit schedule  property  cannot  be  extinguished  simply
because objection was withdrawn, over  which  there  is  a  cloud  of  doubt
anyway and also, the appellant has pleaded that he had  no  idea  about  the
order of the Consolidation Officer in the first place.  We  find  it  highly
likely that fraud was committed on him by the  defendants  as  well  as  the
Consolidation Officer by not recording his name in the  revenue  records  as
the defendants have taken undue advantage of  his  illiteracy  so  that  the
whole property goes to the defendants.

  b. Whether the suit of the appellant was barred by  Section  49  of
           the UP Consolidation of Land Holdings Act and Section 331 of the
           UP Zamindari Abolition and Land Reforms Act?


       10. Answer to point no.2:
The question whether the original suit of the  appellant  was  barred  under
Section 49 of the UP Consolidation of Land Holdings Act and Section  331  of
the UP Zamindari Abolition and Land Reforms Act, we answer in the  negative.
The suit was not barred under the aforesaid provisions as the  UP  Zamindari
Abolition and Land Reforms Act has no jurisdiction to deal with the  subject
matter. On the issue of Section 49 of the UP Consolidation of Land  Holdings
Act, we hold that the present case is not barred under this  section  as  it
is a suit for possession of the  suit  schedule  property  based  on  title,
which is not within the jurisdiction of the authorities under the  aforesaid
Act. In the case of Suba Singh v. Mahendra Singh & Ors.[5], it was  observed
by this Court that Section 49 does not bar jurisdiction of civil  courts  in
matters of title to the land stating that -
               “9. …The result is that the plea of bar of the civil courts’
               jurisdiction to investigate and adjudicate upon the title to
               the land or the sonship of the plaintiff has no substance….”




Therefore, since the present case too involves a question  of  ‘sonship’  of
the plaintiff  who  is  the  appellant  herein,  there  is  no  bar  to  the
jurisdiction of civil courts under Section  49  of  the  aforesaid  Act,  in
deciding the question of the appellant’s right to the land he has  inherited
from his father.
 c. Whether the order passed  by  the  Consolidation  Officer  dated
           14.02.1970 must be declared illegal and void?


        d. What order/decree to be passed?
11. Answer to point nos.3 & 4:
      The order of the Consolidation Officer dated 14.2.1970 was obtained on
the basis of fraud  by  the  defendants.  We  feel  that  the  Consolidation
Officer has also committed fraud on the appellant, by  accepting  withdrawal
of his objection and not going into the issue of whether he is the s/o  Vaij
Nath or not, and therefore whether he is the rightful heir, with a right  in
half-share of the disputed  property.  The  Consolidation  Officer  has  not
discharged his duties properly and keeping with law has  not  given  details
of the objection or why the objection was not pressed by  the  appellant  in
his order. He has permitted a gross miscarriage of justice  to  continue  by
recording of the name of defendant no.1 as the only  rightful  heir  to  the
land in dispute. In the case of S.  Partap  Singh  v.  State  of  Punjab[6],
Ayyangar J. in his portion of  the  judgment  at  para  6  has  quoted  Lord
Denning (in the case Lazarus Estates Ltd. v. Beasley 1956 1 All  ER  341  at
p.345) stating:
              “No judgment of a Court,  no  order  of  a  Minister  can  be
              allowed to stand if it has been obtained by fraud.”


The Consolidation officer without examining the alleged  statement  made  on
behalf of the appellant and  verifying  the  correctness  of  the  same  has
accepted the withdrawal of his objection and has passed  the  order  without
examining the rights of the parties  with  reference  to  the  documents  in
relation to the suit schedule property.


12. We therefore hereby declare the order of the Consolidation Officer  to
be null and void on grounds of patent illegality  and  acting  with  legal
malice. The appellant  has  contended  that  he  had  no  idea  about  the
Consolidation order and was made aware of it only when he  asked  for  his
half share of crop which the defendants   refused to him, and that he  was
made to sign an agreement in which  he  signed  over  his  rights  to  the
property and that he has been taken advantage off due to  his  illiteracy.
We  find  all  this  extremely  murky  and  it  was  incumbent  upon   the
Consolidation Officer to properly enquire into the ownership of  the  land
before recording the defendant’s name in the revenue records.  We  further
hold that the appellant - Amar Nath is entitled  to  be  recorded  in  the
revenue records by the competent authorities as half share  owner  of  the
land in dispute, as he has a right to half the share in the  property  and
crops, as it being the ancestral property of his father –  Vaij  Nath.  It
has been proved by examining the evidence on record, such as the  election
identity card, that Amar Nath is indeed the s/o Vaij Nath thereby  it  has
demolished the contention of the defendants that the appellant is not  the
s/o Vaij Nath.

13.  In view of the foregoing reasons, we hold that  the  appellant  is  the
half share owner of the land in question and further  uphold  his  right  to
the ancestral property. We direct the  competent  authority  to  record  the
name of the appellant – Amar Nath in  the  revenue  records  as  half  share
owner of the land in  dispute.  Thus,  we  hereby  set  aside  the  impugned
judgment and decree of the High Court and uphold the judgment of  the  first
appellate court.  The appeal is allowed  in  the  aforesaid  terms  with  no
order as to costs.
2014 ( April.Part ) judis.nic.in/supremecourt/filename=41447
GYAN SUDHA MISRA, V. GOPALA GOWDA

REPORTABLE




                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION


                        CIVIL APPEAL NO.1918 OF 2007






AMAR NATH                                    ……… APPELLANT


                                     Vs.


KEWLA  DEVI & ANR.                      ………RESPONDENTS










                               J U D G M E N T




V.GOPALA GOWDA J.





      This appeal is directed against the impugned judgment and order  dated
08.04.2005 of the High Court of Uttar Pradesh at Allahabad wherein the  High
Court allowed the appeal filed by the respondents and set  aside  the  order
passed by the Additional District Judge  and  upheld  the  findings  of  the
trial court. The  appellant  has  appealed  against  the  impugned  judgment
urging various legal and factual  contentions,  the  main  contention  being
that the High Court has  allowed  the  appeal  without  framing  substantial
question/questions of law although it is mandatory as  per  Section  100  of
the Code of Civil Procedure, 1908 (hereinafter referred to as the ‘CPC’).

2. The relevant facts of the case in brief are stated hereunder:
       The appellant, Amar Nath is the plaintiff whose father, Vaij Nath  is
the brother of Ram Nath and Ram Dev. The respondent no.1 - the defendant  is
the only daughter of Ram Nath. Ram  Dev,  the  third  brother  died  without
issue. The appellant, Amar Nath filed a suit  for  possession  of  the  suit
schedule property and prayed for quashing of order dated  14.02.1970  passed
by the Consolidation Officer during the  Consolidation  proceedings  on  the
ground that  defendant  no.1  in  connivance  with  defendant  no.2,  taking
benefit of the appellant’s mental  weakness  and  illiteracy  have  recorded
their name over the land in dispute, and the Consolidation Officer  rejected
the appellant’s objection holding that it was not pressed and directed  that
existing entries shall continue. He prayed for quashing  the  order  of  the
Consolidation Officer on the ground that fraud was played on him and he  had
no knowledge of the order. The trial court on the  basis  of  the  pleadings
has framed 12 issues and after trial, it has decided issue  nos.  1  and  12
against the appellant, holding that the appellant is not  co-bhumidhar  over
the land in dispute and further held that the suit is barred by  limitation.
The trial court also held that the suit is barred by Section 331 of  the  UP
Zamindari Abolition and Land Reforms Act, 1950 and he should instead file  a
suit before the Revenue Court for his  bhumidhar  right  over  the  disputed
land and for the relief of possession also of the  suit  schedule  property.
It was further held that the  suit  is  barred  by  Section  49  of  the  UP
Consolidation of Holdings Act, 1953 as well  as  by  limitation.  The  trial
court also held that the suit is barred by  the  principle  of  estoppel  as
well as under Sections  34  and  41  of  the  Specific  Relief  Act  as  the
defendant has got exclusive possession over the land  in  dispute.  Although
the trial court held that the appellant had cause  of  action  to  file  the
suit, it went on to hold that as the appellant did not press  the  objection
filed by him  in  the  consolidation  proceedings  and  he  entered  into  a
compromise with the defendant, handing over  his  share  in  favour  of  the
defendant which is not based on fraud, coercion or  undue  pressure  and  no
allegation of the same has been mentioned  in  the  suit,  and  no  evidence
either was placed on record. Hence, the trial court held that the  appellant
is not entitled for the relief as  prayed  for  in  the  suit,  and  thereby
dismissed the suit  with  costs.  Importantly,  even  though  the  suit  was
dismissed the trial court demolished the contention of the  defendants  that
Amar Nath, the appellant was not Vaij Nath’s son. The trial court held  that
Amar Nath was indeed the son of Vaij Nath,  relying  on  the  deposition  of
witnesses examined on behalf of the appellant and  on  documentary  evidence
produced on his behalf i.e. the copy  of  electoral  register  of  1991  and
ration card in which it is recorded that he is Amar Nath s/o Vaij Nath.  The
trial court took into account the admission of DW-1,  Shyama  Chand  Tiwari,
the husband of defendant no.1 who has recorded his statement on oath in  the
court wherein he has himself stated  that  ‘Amar  Nath  s/o  Vaij  Nath  had
himself withdrawn his case from the consolidation proceedings’.

3. The appellant appealed against the  judgment  and  decree  of  the  trial
court by filing a civil appeal under Section 96 of  the  CPC  in  the  first
appellate court, through the Court of the  Additional  District  Judge.  The
first appellate court held vide judgment and decree  dated  01.02.2005  that
the appellant had only to prove that he is son of Vaij Nath who was the  son
of Gaya and he  is  their  legal  heir  and  the  trial  court,  instead  of
examining important and  reliable  evidence  of  the  witnesses  has  rather
examined  different  interested  persons,  ignoring  the  records  available
before it which constituted complete evidence in favour  of  the  appellant.
If evidence were that Amar Nath was son of Vaij Nath then automatically  the
court should have  given  half  portion  of  the  land  in  dispute  to  the
appellant along with defendant Kewla Devi. The appeal  was  allowed  as  the
conclusion arrived  at  by  the  trial  court  were  not  supported  by  the
pleadings and evidence available on record.

4. The respondents-defendants filed the second appeal before the High  Court
against the judgment and  decree  of  the  first  appellate  court.  It  was
contended by the  respondents  that  the  disputed  land  was  inherited  by
respondent No.1 from her father  during  consolidation  proceedings  in  the
year 1969-1970 and some opponent of theirs set up the appellant to  file  an
objection which was later on withdrawn  by  him  by  moving  an  application
dated 14.02.1970. It was alleged that the appellant does not belong  to  the
family of the respondents and he is not the  heir  of  Gaya.  The  appellant
alleged that fraud was committed on  him  and  the  order  dated  14.02.1970
passed by the Consolidation Officer was fraudulent  and  liable  to  be  set
aside. He pleaded that he was defrauded by the  respondents  and  they  made
him to believe that they are managing the  disputed  land.  The  High  Court
held that as per Order 6 Rule 4 of the CPC,  when  fraud,  breach  of  trust
etc. are alleged, particulars of the same must be  stated  in  the  pleading
and in the present case, no particulars of fraud were made as  part  of  the
pleading and in the absence of such pleading no evidence can be looked  into
and a finding that the  order  has  been  fraudulently  procured  cannot  be
given. As a result, the second appeal of the  respondents  was  allowed  and
the High Court set aside the judgment and  decree  of  the  first  appellate
court.  Hence, this civil appeal.
5. The learned  counsel  for  the  appellant  contends  that  the  appellant
pleaded about the fraud played and further clarified it in the evidence  led
by him and that he was assured by the husband of respondent  No.1  that  his
share will be recorded in his name and that he committed fraud upon him.  He
further stated that the appellant had no knowledge about  the  consolidation
order dated 14.02.1970 and that he had not  filed  any  application  in  the
Consolidation Court. He  contended  that  the  suit  was  not  barred  under
Section 49 of the UP Consolidation of Land Holdings  Act  and  also  Section
331 of the UP Zamindari Abolition and Land Reforms Act, 1950  as  by  filing
the present suit, the appellant prayed  for  quashing  of  the  order  dated
14.02.1970 which, he contended, was obtained by fraud and the  power  to  do
this lies only with the civil court. Further, the trial court has  committed
a grave error by not decreeing the suit by giving half the  portion  of  the
disputed property to the appellant when the trial court itself had  held  in
para 18 of its judgment that the appellant was the son of Vaij Nath and  the
legal heir of Gaya. The appellant then contended that  the  High  Court  has
committed a serious  error  of  procedure  by  allowing  the  second  appeal
without framing any substantial  question  of  law  as  per  requirement  of
Section 100 of the CPC.

6. The learned counsel for the respondent has submitted that the High  Court
has dealt with the appeal without framing substantial question of law  which
is mandated as per Section 100 of the CPC. Further, the High Court  has  not
gone into the question whether the suit was barred by Section 49 of  the  UP
Consolidation of Land Holdings Act and  Section  331  of  the  UP  Zamindari
Abolition and Land Reforms Act. The learned counsel relied on  the  case  of
Madan Mohan Mishra v. Chandrika Pandey (Dead)  by  LRs[1]  to  contend  that
this Court has clearly held that  the  jurisdiction  of  a  civil  court  is
barred in respect of agricultural land and in Madan Mohan Singh  &  Ors.  v.
Rajni Kant & Anr.[2], it was held that the statutory authorities  under  the
Consolidation of Holdings Act enjoy the powers of a civil court as  well  as
a revenue court as all matters pending before the  civil  court  abate  once
notification of initiation of  proceedings  is  issued  under  the  Act.  He
stated that the authorities under the Consolidation Act have been  conferred
the powers of a civil court to adjudicate upon any matter of title or  right
to inherit  property.  Therefore,  it  was  submitted  that  the  matter  be
remitted to the High Court for formulating substantial question of  law  and
then decide the second appeal on its merits or this Court may be pleased  to
consider the effect of Section 49 of the UP Consolidation of  Land  Holdings
Act and Section 331 of the UP Zamindari Abolition and Land  Reforms  Act  on
merits.

7. We have heard the learned counsel for both  the  parties.  The  following
questions arise before us:

        a. Whether the High  Court  was  correct  in  deciding  the  appeal
           without formulating substantial questions of law and whether the
           matter must be remitted back to the High Court?


        b. Whether the suit of the appellant was barred by  Section  49  of
           the UP Consolidation of Land Holdings Act and Section 331 of the
           UP Zamindari Abolition and Land Reforms Act?


        c. Whether the order passed  by  the  Consolidation  Officer  dated
           14.02.1970 must be declared illegal and void?


        d. What order/decree to be passed?


We will deal with each of these issues separately along  with  supplementary
issues that would arise out of them.

8. Answer to point no.1:
      In our considered viewpoint, the High  Court  has  committed  a  grave
error in procedure by not framing substantial question of  law  and  setting
aside the judgment and decree of the first appellate court. The  finding  of
fact recorded by the first appellate court on  the  contentious  issues  was
based on re-appreciation  of  the  pleadings  and  evidence  on  record  and
careful perusal of the law and the High Court has failed  to  discharge  its
duty by not framing the mandatory substantial questions of law in  order  to
examine the correctness of the judgment  and  decree  passed  by  the  first
appellate court. In the interest of justice, the judgment and decree of  the
High Court has to be set aside  as  it  has  omitted  to  frame  substantial
questions of law and answer the same and thus has failed  to  discharge  its
duty under S.100 of the CPC. The learned  counsel  for  the  respondent  has
relied on the cases of Surat Singh v. Hukam Singh Negi[3] and  Hardeep  Kaur
v. Malkiat Kaur[4]  in order to establish that the High Court  is  bound  to
formulate substantial questions of law at the initial  stage  itself  if  it
has to satisfy itself that the  matter  deserves  to  be  admitted  and  the
second appeal to be heard and decided on such questions and further even  at
the time of hearing of the second appeal, it is open to the  High  Court  to
reformulate substantial questions of law. In the judgments relied upon,  the
impugned judgments of the High Court were  set  aside  and  the  matter  was
remitted to the High Court for consideration  afresh  after  formulation  of
the substantial questions of law. The learned counsel  for  the  respondents
has prayed for the same.

9. We do not think it necessary to remit the matter back to the  High  Court
for fresh consideration. We feel it is sufficient to set aside the  impugned
judgment and uphold the well-reasoned judgment of the first appellate  court
where it was held that the very fact that the trial court held that  it  was
proved that Amar Nath was s/o Vaij Nath based on  the  evidence  on  record,
then automatically the court should have  given  half  the  portion  of  the
disputed land to the  appellant  along  with  defendant  no.1,  Kewla  Devi.
Instead, the trial court as well as the Consolidation  Officer  have  passed
judgments that are bad in law as they have failed to see that the  right  of
the appellant cannot simply be extinguished because of the defendants’  plea
that he has entered into a  compromise.  The  defendants  have  taken  undue
advantage of the appellant’s illiteracy and the  Consolidation  Officer  has
abdicated his role  by  allowing  the  objection  of  the  appellant  to  be
withdrawn and by not examining whether or not the appellant was  indeed  the
S/o Vaij Nath who was the S/o Gaya. The order of the  Consolidation  Officer
is thus bad in law and it has resulted in a grave  miscarriage  of  justice.
We think it fit to restore the judgment  and  decree  passed  by  the  first
appellate court wherein the court declared that the appellant, Amar Nath  is
S/o Vaij Nath who was son of Gaya thereby holding that the order  passed  by
the Consolidation Officer is void and illegal and the trial court was  wrong
in not quashing the order of the Consolidation Officer and that  nowhere  in
the revenue record was his name recorded and  fraud  was  committed  against
him as defendant no.1, Kewla Devi has got her  name  recorded  in  each  and
every revenue record.  The judgment of the first appellate  court  is  legal
and valid as it is fair and keeping with  the  principles  of  justice.  The
trial court in its answer to issue nos. 1 and 10 has rightly held that  Amar
Nath is S/o Vaij Nath who was undisputedly the son of Gaya and if that  fact
was proved, then  we  see  no  reason  why  it  was  not  directed  for  the
appellant’s name to be recorded in the revenue records.  The  right  of  the
appellant over the suit schedule  property  cannot  be  extinguished  simply
because objection was withdrawn, over  which  there  is  a  cloud  of  doubt
anyway and also, the appellant has pleaded that he had  no  idea  about  the
order of the Consolidation Officer in the first place.  We  find  it  highly
likely that fraud was committed on him by the  defendants  as  well  as  the
Consolidation Officer by not recording his name in the  revenue  records  as
the defendants have taken undue advantage of  his  illiteracy  so  that  the
whole property goes to the defendants.





10. Answer to point no.2:
The question whether the original suit of the  appellant  was  barred  under
Section 49 of the UP Consolidation of Land Holdings Act and Section  331  of
the UP Zamindari Abolition and Land Reforms Act, we answer in the  negative.
The suit was not barred under the aforesaid provisions as the  UP  Zamindari
Abolition and Land Reforms Act has no jurisdiction to deal with the  subject
matter. On the issue of Section 49 of the UP Consolidation of Land  Holdings
Act, we hold that the present case is not barred under this  section  as  it
is a suit for possession of the  suit  schedule  property  based  on  title,
which is not within the jurisdiction of the authorities under the  aforesaid
Act. In the case of Suba Singh v. Mahendra Singh & Ors.[5], it was  observed
by this Court that Section 49 does not bar jurisdiction of civil  courts  in
matters of title to the land stating that -
               “9. …The result is that the plea of bar of the civil courts’
               jurisdiction to investigate and adjudicate upon the title to
               the land or the sonship of the plaintiff has no substance….”




Therefore, since the present case too involves a question  of  ‘sonship’  of
the plaintiff  who  is  the  appellant  herein,  there  is  no  bar  to  the
jurisdiction of civil courts under Section  49  of  the  aforesaid  Act,  in
deciding the question of the appellant’s right to the land he has  inherited
from his father.

11. Answer to point nos.3 & 4:
      The order of the Consolidation Officer dated 14.2.1970 was obtained on
the basis of fraud  by  the  defendants.  We  feel  that  the  Consolidation
Officer has also committed fraud on the appellant, by  accepting  withdrawal
of his objection and not going into the issue of whether he is the s/o  Vaij
Nath or not, and therefore whether he is the rightful heir, with a right  in
half-share of the disputed  property.  The  Consolidation  Officer  has  not
discharged his duties properly and keeping with law has  not  given  details
of the objection or why the objection was not pressed by  the  appellant  in
his order. He has permitted a gross miscarriage of justice  to  continue  by
recording of the name of defendant no.1 as the only  rightful  heir  to  the
land in dispute. In the case of S.  Partap  Singh  v.  State  of  Punjab[6],
Ayyangar J. in his portion of  the  judgment  at  para  6  has  quoted  Lord
Denning (in the case Lazarus Estates Ltd. v. Beasley 1956 1 All  ER  341  at
p.345) stating:
              “No judgment of a Court,  no  order  of  a  Minister  can  be
              allowed to stand if it has been obtained by fraud.”


The Consolidation officer without examining the alleged  statement  made  on
behalf of the appellant and  verifying  the  correctness  of  the  same  has
accepted the withdrawal of his objection and has passed  the  order  without
examining the rights of the parties  with  reference  to  the  documents  in
relation to the suit schedule property.


12. We therefore hereby declare the order of the Consolidation Officer  to
be null and void on grounds of patent illegality  and  acting  with  legal
malice. The appellant  has  contended  that  he  had  no  idea  about  the
Consolidation order and was made aware of it only when he  asked  for  his
half share of crop which the defendants   refused to him, and that he  was
made to sign an agreement in which  he  signed  over  his  rights  to  the
property and that he has been taken advantage off due to  his  illiteracy.
We  find  all  this  extremely  murky  and  it  was  incumbent  upon   the
Consolidation Officer to properly enquire into the ownership of  the  land
before recording the defendant’s name in the revenue records.  We  further
hold that the appellant - Amar Nath is entitled  to  be  recorded  in  the
revenue records by the competent authorities as half share  owner  of  the
land in dispute, as he has a right to half the share in the  property  and
crops, as it being the ancestral property of his father –  Vaij  Nath.  It
has been proved by examining the evidence on record, such as the  election
identity card, that Amar Nath is indeed the s/o Vaij Nath thereby  it  has
demolished the contention of the defendants that the appellant is not  the
s/o Vaij Nath.

13.  In view of the foregoing reasons, we hold that  the  appellant  is  the
half share owner of the land in question and further  uphold  his  right  to
the ancestral property. We direct the  competent  authority  to  record  the
name of the appellant – Amar Nath in  the  revenue  records  as  half  share
owner of the land in  dispute.  Thus,  we  hereby  set  aside  the  impugned
judgment and decree of the High Court and uphold the judgment of  the  first
appellate court.  The appeal is allowed  in  the  aforesaid  terms  with  no
order as to costs.
                                ………………………………………………………………………J.
                         [GYAN SUDHA MISRA]

                                    ………………………………………………………………………J.
                                     [V. GOPALA GOWDA]
New Delhi,                                              April 22, 2014
-----------------------
[1] (2009) 3 SCC 720
[2] (2010) 9 SCC 209
[3] (2010) 15 SCC 525
[4] (2012) 4 SCC 344
[5] (1974) 1 SCC 418
[6] AIR 1964 SC 72