writ petition under Article 226 of the Constitution of India before the High Court, inter alia, praying that Regulation 15 of the Regulations be struck down on the ground that the said Regulation being ultra vires of the said Act, and further the review application filed by the appellant should be re-heard by the National Commission granting an opportunity to present the case by making oral arguments. = Surendra Mohan Arora … Appellant :Versus: HDFC Bank Ltd. and Others ...Respondents = 2014 (April. Part)http://judis.nic.in/supremecourt/filename=41471

writ petition under Article 226 of the Constitution of India  before the High Court, inter alia, praying that Regulation 15  of  the  Regulations be struck down on the ground that the said Regulation being ultra  vires  of the said Act, and further the review  application  filed  by  the  appellant should be re-heard by the National Commission  granting  an  opportunity  to
present the case by making oral arguments. =

 The appellant filed a complaint before the District Forum under  the
said Act. The foundation of the filing of such complaint was  an  allegation
made against respondent No. 1 – HDFC Bank  Ltd.   for  indulging  in  unfair
trade practice on the ground of failure to provide professional services  to
the appellant resulting in pre-payment of loan to  respondent  No.1  seeking
to levy a penalty for pre-payment.
By an order dated August 2, 2007, the District Forum held in  favour
of the appellant. Respondent No.1  preferred  an  appeal  against  the  said
order before the State Commission resulting in dismissal by an  order  dated
November 19, 2007.  A  revision  petition  was  filed  before  the  National
Consumer Disputes Redressal Commission  (hereinafter  referred  to  as  “the
National Commission”) which set aside the orders of the District  Forum  and
the State Commission vide an order dated August 14, 2012  on  the  basis  of
the  agreements  inter  se  between  the  parties.  Being   aggrieved,   the
appellant  filed  a  review  application  before  the  National   Commission
resulting in dismissal by an order dated September 24, 2012.
Being aggrieved and dissatisfied with the said  order,  the  appellant
filed a writ petition under Article 226 of the Constitution of India  before
the High Court, inter alia, praying that Regulation 15  of  the  Regulations
be struck down on the ground that the said Regulation being ultra  vires  of
the said Act, and further the review  application  filed  by  the  appellant
should be re-heard by the National Commission  granting  an  opportunity  to
present the case by making oral arguments.

High court dismissed the writ petition filed  by  the  appellant,  questioning  the

   vires of Regulation 15  of  the  Consumer  Protection  Regulations,  2005
   (hereinafter referred to as “the Regulations”)  framed under the Consumer
   Protection Act, 1986 (hereinafter referred to as “the said Act”).=

whether the review petitions will  be  decided  after

   granting an opportunity of being heard to the petitioner. 
From the  order
   of the High Court,  we  find  that  no  such  request  was  made  in  the
   application before the National Commission for  such  hearing.  
In  these
   circumstances, the High Court correctly held that the  writ  petition  is
   misconceived and devoid of merit without even laying the basic foundation
   for having sought an oral hearing of the review application.  
We  do  not
   find any reason to interfere with the order passed  by  the  High  Court.
   Accordingly, we uphold and affirm the said order and dismiss this appeal.=

2014 (April. Part)http://judis.nic.in/supremecourt/filename=41471                                   GYAN SUDHA MISRA, PINAKI CHANDRA GHOSE  
                                                                Reportable
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                       CIVIL APPEAL NO.4891   OF  2014
      (Arising out of Special Leave Petition (Civil) No.14965 of 2013)

Surendra Mohan Arora                                               …
Appellant

                                  :Versus:

HDFC Bank Ltd. and Others
...Respondents



                               J U D G M E N T


Pinaki Chandra Ghose, J.

1.     Leave granted.


2. This appeal is directed  against  the  judgment  dated  January  7,  2013
   passed by the High Court of  Delhi  in  Writ  Petition  No.  64  of  2013
   dismissing the writ petition filed  by  the  appellant,  questioning  the
   vires of Regulation 15  of  the  Consumer  Protection  Regulations,  2005
   (hereinafter referred to as “the Regulations”)  framed under the Consumer
   Protection Act, 1986 (hereinafter referred to as “the said Act”).


3.   The facts of the case briefly are as follows :


(3.1)   The appellant filed a complaint before the District Forum under  the
said Act. The foundation of the filing of such complaint was  an  allegation
made against respondent No. 1 – HDFC Bank  Ltd.   for  indulging  in  unfair
trade practice on the ground of failure to provide professional services  to
the appellant resulting in pre-payment of loan to  respondent  No.1  seeking
to levy a penalty for pre-payment.


(3.2)   By an order dated August 2, 2007, the District Forum held in  favour
of the appellant. Respondent No.1  preferred  an  appeal  against  the  said
order before the State Commission resulting in dismissal by an  order  dated
November 19, 2007.  A  revision  petition  was  filed  before  the  National
Consumer Disputes Redressal Commission  (hereinafter  referred  to  as  “the
National Commission”) which set aside the orders of the District  Forum  and
the State Commission vide an order dated August 14, 2012  on  the  basis  of
the  agreements  inter  se  between  the  parties.  Being   aggrieved,   the
appellant  filed  a  review  application  before  the  National   Commission
resulting in dismissal by an order dated September 24, 2012.


(3.3) Being aggrieved and dissatisfied with the said  order,  the  appellant
filed a writ petition under Article 226 of the Constitution of India  before
the High Court, inter alia, praying that Regulation 15  of  the  Regulations
be struck down on the ground that the said Regulation being ultra  vires  of
the said Act, and further the review  application  filed  by  the  appellant
should be re-heard by the National Commission  granting  an  opportunity  to
present the case by making oral arguments.


4.  Mr.  Nikhil  Majithia,  learned  counsel  appearing  on  behalf  of  the
   appellant, drew our attention to the Statement of Objects and Reasons  of
   the said Act which is to provide for better  protection  of  interest  of
   consumers and it is towards that objective that Section 22  of  the  said
   Act was amended by Act No.62 of 2002 with effect  from  March  15,  2003,
   conferring the power of review on the National Commission, which was  not
   available in the original Act. According to him, Regulation 15  is  ultra
   vires Section 22 of the said Act. It  is  also  his  contention  that  by
   introducing Regulation 15,  the  National  Commission  has  exceeded  its
   jurisdiction and the power vested in it under Section  30A  of  the  said
   Act.


5.  Section 22 of the said Act reads as follows :

      “Section 22.  Power  of  and  procedure  applicable  to  the  National
      Commission. — (1) The provisions of sections 12, 13  and  14  and  the
      rules made thereunder for the disposal of complaints by  the  District
      Forum shall, with such modifications as may be considered necessary by
      the Commission, be applicable to  the  disposal  of  disputes  by  the
      National Commission.

      (2)   Without prejudice to the  provisions  contained  in  sub-section
      (1), the National Commission shall have the power to review any  order
      made by it, when there is an error apparent on the face of record.”





It is necessary to quote Regulation 15 for our purpose which is as under:

      “Regulation 15. Review.-(1) It shall set out clearly the  grounds  for
      review.


      (2)   Unless   otherwise   ordered by the National   Commission,    an
      application for review shall be disposed  of  by  circulation  without
      oral arguments, as far as practicable between the same members who had
      delivered the order sought to be reviewed.”



6. It is needless to mention  here  that  the  said  Regulations  were  duly
   published in the Official Gazette dated May 31, 2005 and were so made  in
   pursuance of the power conferred  under  Section  30A  of  the  said  Act
   conferring power on the National Commission to make such regulations with
   the prior approval of the Central Government. According to Mr.  Majithia,
   the Consumer Protection Act has been enacted to protect and  advance  the
   cause of consumers. He further contended that the  Statement  of  Objects
   and Reasons of the Act in Clause 2 states that the Act seeks  to  promote
   and protect the rights of consumers  including  the  right  to  hear  and
   further to assure that the interest of the  consumers  will  receive  due
   consideration at appropriate fora. He further submitted  that  all  these
   fora are quasi-judicial authorities, therefore, are bound to observe  the
   principles of natural justice.


7. He further pointed out that the  amendment  of  Section  22  is  only  to
   empower the National Commission to function more explicitly  and  further
   to streamline the functioning of the consumer fora. The main grievance of
   the appellant is that the National Commission has provided  for  disposal
   of review application by circulation without oral arguments. Mr. Majithia
   submitted that the said Act has provided for promotion and protection  of
   the rights of the consumers which includes the right  to  be  heard.  The
   said Act has also provided that the principles of natural  justice  shall
   be adhered to by all  quasi-judicial  fora  which  include  the  National
   Commission. He submitted that the salient features of the Act are  sought
   to be rendered redundant by way of Regulation  15,  by  taking  away  the
   right of being heard and there is no adherence to principles  of  natural
   justice, thereby making it ultra vires to Section 22 of the said Act.  In
   these circumstances, he submitted that Regulation  15  should  be  struck
   down.


8. To fortify his submission, he relied on the decisions of  this  Court  in
   State of Orissa vs. Dr. (Miss) Binapani Dei and Ors[1] followed in Maneka
   Gandhi vs. Union of India[2] & Anr., Sahara  India  (Firm),  Lucknow  vs.
   Commissioner of Income Tax,  Central-I  &  Anr.[3]  and  Automotive  Tyre
   Manufacturers Association vs. Designated Authority and  Ors.[4],  and  it
   has been contended by Mr. Majithia that the courts have emphasized on the
   right of being heard time and again even when an order is  passed  by  an
   administrative  authority  and  that  written  arguments  cannot   be   a
   substitute for oral hearing. It is also the case of  the  appellant  that
   the national Commission has exercised  its  power  beyond  the  scope  of
   Section 30A of the Act while enacting Regulation 15, which in its present
   form defeats the objective of the amended Section 22 of the  Act  as  the
   right of making oral arguments is taken away from  the  consumer,  making
   the Regulation inconsistent with the objective of the Act.  It  has  also
   been submitted that the impression given by Regulation  15(2)  that  oral
   arguments can be  made  when  allowed  by  the  National  Commission,  is
   fallacious as it does not consider the fact that the Act  has  given  the
   prerogative  to  the  consumer  and  not  to  the  National   Commission.
   Moreover, this would also lead to inequality as some consumers are  given
   the right of being heard in open court and some are deprived of the  same
   at the discretion of the National Commission. Another submission  of  the
   learned counsel is that in the light of the principle that  justice  must
   not only be done but also be seen  to  have  been  done;  Section  22  is
   rendered redundant on account of Regulation 15 as the same is contrary to
   the principle of audi alteram partem which is  undisputedly  followed  by
   judicial and quasi-judicial bodies alike.


9.   We have perused Section 22 of the said Act. Under  Section  22(2),  the
   National Commission has been empowered to review an order made by it when
   there is an error apparent on the  face  of  the  record.  We  have  also
   noticed sub-section (1) of the said Act. It is a fact that this provision
   streamlines the functioning of the consumer  Redressal  forums  and  also
   reduces the number of appeals to the Supreme Court from the orders of the
   National Commission. The power of review did not  exist  earlier.  It  is
   trite law that unless the power of review is  specifically  conferred  by
   the statute, there cannot be any inherent power of review.


10. In the instant case, the power conferred by Section 22 of the  said  Act
   on the National Commission is not  an  inherent  power  and  further  the
   Commission has the power to review its  order  when  there  is  an  error
   apparent on the face of the record. We do not find any dispute  that  the
   Regulations have been framed in accordance with the power conferred under
   Section 30A on the Commission,  thereby  effecting  its  right  to  frame
   Regulations. Therefore, the Regulations have been  framed  in  accordance
   with law. We have minutely gone through Regulation 15(2) and  found  that
   power to deal with review applications  lies  with  the  Commission.  The
   procedure is to be adopted by the National Commission, whether the review
   petition would be decided after hearing the  parties  orally  or  can  be
   disposed of by way of circulation. Therefore, we do  not  find  that  any
   mischief has been done by framing the said Regulations. In  our  opinion,
   the said Regulations under Section 22 of the said Act, cannot be said  to
   be ultra vires the said Act. Accordingly, we do not find any substance in
   the arguments put up before us by Mr. Majithia. There  is  no  reason  to
   believe that the National Commission by enacting Regulation  15  exceeded
   its jurisdiction or the power vested in it under Section 30A of the  said
   Act, as has been tried to be contended by Mr. Majithia.


11. The other grievance of Mr. Majithia is that the National  Commission  in
   its Cause List specifically issued a notice that no proxy  counsel  shall
   be allowed to make submissions. According to him, such a direction is bad
   in law and is without any jurisdiction. According to him, such  direction
   is also arbitrary and illegal as it prevents a qualified lawyer  enrolled
   on the rolls of a State Bar Council from presenting his case  before  the
   National Commission. He further submitted that it is also in violation of
   Article 19(1)(g) of the Constitution,  being  the  fundamental  right  to
   practice. He further stated that under Section 30 of the  Advocates  Act,
   1961, an Advocate, after having been enrolled,  has  a  right  to  appear
   before  the  courts  or  any  other  authority  and,  therefore,  it   is
   curtailment of the right of an Advocate. We find that under the Advocates
   Act, there is no terminology which defines “proxy counsel”. We have found
   in a very recent decision of this Court in S.L.P. (Criminal)  No.9967  of
   2011 (Sanjay Kumar v. The State of Bihar & Anr.), a three-Judge Bench  of
   this Court in its order dated January 28, 2014 has held as follows :


            “In such a chaotic situation, any  “Arzi”,  “Farzi”,  half-baked
      lawyer under the label of “proxy  counsel”,  a  phrase  not  traceable
      under the Advocates Act, 1961 or under the Supreme Court  Rules,  1966
      etc., cannot be allowed to abuse and misuse the process of  the  court
      under a false impression that he has a  right  to  waste  public  time
      without any authority to appear in the court, either from the litigant
      or from the AOR, as in the instant case. ….”






        Therefore, we do not find any substance in  the  submission  of  Mr.
Majithia with regard to “proxy counsel”.  We  also  do  not  find  that  the
decisions cited by Mr. Majithia before us can extend any help in  the  facts
and circumstances of this case.


12. The foundation, as it appears to  us  for  filing  this  appeal  by  the
   appellant, is only to curtail the rights of the  National  Commission  to
   adopt the procedure whether the review petitions will  be  decided  after
   granting an opportunity of being heard to the petitioner. From the  order
   of the High Court,  we  find  that  no  such  request  was  made  in  the
   application before the National Commission for  such  hearing.  In  these
   circumstances, the High Court correctly held that the  writ  petition  is
   misconceived and devoid of merit without even laying the basic foundation
   for having sought an oral hearing of the review application.  We  do  not
   find any reason to interfere with the order passed  by  the  High  Court.
   Accordingly, we uphold and affirm the said order and dismiss this appeal.

                                                           …....……………………..J.
                             (Gyan Sudha Misra)

                                                                  New Delhi;
                                                        .........…………………….J.
April 25, 2014.                                                  (Pinaki
Chandra  Ghose)
-----------------------
[1]     (1967) 2 SCR 625
[2]     (1978) 1 SCC 248
[3]     (2008) 14 SCC 151
[4]     (2011) 2 SCC 258

-----------------------
10

Service matter - Notice of superannuation - Form B was disputed in the year 1987 itself - not decided - School leaving certificate bares correct date of birth - not challenged - at fag end Employer can not dispute it - Writ field by Employee allowed - Apex court too confirmed the order of High court = M/S Bharat Coking Coal Ltd and Ors. … Appellants vs. Chhota Birsa Uranw … Respondent =2014 (April. Part)http://judis.nic.in/supremecourt/filename=41470

Service matter - Notice of superannuation - Form B was disputed in the year 1987 itself - not decided - School leaving certificate bares correct date of birth - not challenged - at fag end Employer can not dispute it - Writ field by Employee allowed - Apex court too confirmed the order of High court =

The Project Officer vide order  dated  August  2,  2006  intimated  the
     respondent that he is to superannuate from February 28, 2007. Aggrieved
     by the same, the respondent filed a writ bearing W.P. (S)  No.  496  of
     2007 for quashing of the order of superannuation by the Project Officer
     on the grounds that the date of  superannuation  has  been  incorrectly
     calculated by relying on the erroneous date of birth which should  have
     been rectified in terms of the NCWA III, which provided that the Mining
     Sardar Certificate and the School Leaving Certificate must  be  treated
     as authentic documents by the employer as proof of the date of birth of
     the employee. 
The appellant company without challenging the genuineness
     of the same countered the respondent on the grounds that the  Form  ‘B’
     register was a conclusive proof of date of birth as it was verified  by
     the signature of the employee being the respondent; and having accepted
     the entry then, the respondent is not entitled  to  raise  any  dispute
     after twenty years and at the fag end of his service.  
The  High  Court
     while allowing the writ determined that the respondent  did  not  raise
     such a claim at the fag end of his career, rather   such  a  claim  was
     made in 1987 itself and the appellant company  had  failed  to  respond
     suitably to the dispute raised by the respondent.  
Thereby,  the  Court
     directed  the appellant company  to conduct an enquiry on the basis  of
     the  certificates  produced  by  the  respondent  and  to   effectively
     communicate to the respondent the  decision  taken  together  with  the
     reasons assigned within three months of the passing of the order. =

As noted by us, the respondent in 1987 on coming to know of the  wrong
   recording of his date of birth in his service records from the nomination
   form sought rectification. 
Therefore, such rectification was  not  sought
   at the fag end of his service. 
We have  further  noticed  that  the  High
   Court duly verified the genuineness of the school leaving certificate  on
   the basis of a supplementary affidavit filed by Shri Dilip Kumar  Mishra,
   legal inspector of the appellant company on  September 6, 2010 before the
   High Court. 
It has been admitted in the said supplementary affidavit that
   the school leaving certificate has been verified and has been found to be
   genuine. 
We have further noticed that  Implementation  Instruction  No.76
   clause (i)(a) permits rectification of the date of birth by treating  the
   date of birth mentioned in the school leaving certificate to  be  correct
   provided such certificates were issued  by  the  educational  institution
   prior to the date of employment. 
The question of interpreting  the  words
   ‘were issued’ was correctly interpreted, in  our  opinion,  by  the  High
   Court which interpreted the said words for the  purpose  of  safeguarding
   against misuse of the certificates for  the  purpose  of  increasing  the
   period of employment.  
The High Court  correctly  interpreted  and  meant
   that these words will not apply where the school records  containing  the
   date of birth were available long before the starting of the  employment.
   
The date of issue of certificate actually intends to refer  to  the  date
   with the relevant record  in  the  school  on  the  basis  of  which  the
   certificate has been issued. 
A  school  leaving  certificate  is  usually
   issued at the time of leaving the school by the student,  subsequently  a
   copy thereof also can be obtained where  a  student  misplaces  his  said
   school leaving certificate and applies for  a  fresh  copy  thereof.  
The
   issuance of fresh  copy  cannot  change  the  relevant  record  which  is
   prevailing in the records of the school from the date  of  the  admission
   and birth date of the student, duly entered in the records of the school

15.  Therefore,  the  order  of  the  High  Court  does  not  call  for  any
   interference. We endorse the reasoning given by the High Court and affirm
   the same.

16. In these circumstances,  we  do  not  find  any  merit  in  the  appeal.
   Accordingly, this appeal is dismissed.

2014 (April. Part)http://judis.nic.in/supremecourt/filename=41470                                    GYAN SUDHA MISRA, PINAKI CHANDRA GHOSE  

                                                              Reportable


                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                          CIVIL APPEAL NO.4890/2014
        (Arising out of Special Leave Petition (C) No. 34133 of 2011)


       M/S Bharat Coking Coal Ltd and Ors.                        …
Appellants

                                     vs.

    Chhota Birsa Uranw                                                 …
                                 Respondent




                               J U D G M E N T


Pinaki Chandra Ghose, J.


1. Leave granted.

2. The present appeal arises  against  the  order  of  the   High  Court  of
   Jharkhand at  Ranchi  in  Letters  Patent  Appeal  No.90  of  2010  dated
   September 20, 2010, which was filed against the order  dated December 11,
   2009 passed by the learned Single Judge in a writ being W.P. (S) No.  496
   of 2007 filed by the respondent in the present matter, wherein the  court
   quashed the order dated  August 2, 2006 passed by  the  Project  Officer,
   Jamunia Open Cast Project (hereinafter referred to as ‘Project  Officer’)
   Area of the Bharat Coking Coal Ltd. (being appellant No. 1 in the present
   matter),  which  stated  that  the  respondent  will  superannuate     on
   February 28, 2007.
3. The brief facts leading to the same are as under :
  1. The respondent  joined   appellant  No.  1,  Bharat  Coking  Coal  Ltd.
     (‘BCCL’), a ‘Government Company’ as under Section 617 of the  Companies
     Act, 1956,  his  date of joining as per the impugned order is stated to
     be  March 31, 1973.   At the time of joining, his  date  of  birth  was
     recorded  as  February  15,  1947,   in  Form  ‘B’,  a  statutory  form
     stipulated under the Mines Rules, 1955, the basis of recording the same
     is not clear.  The  respondent  obtained  a  Secondary  School  Leaving
     Certificate issued  on  October  12,  1979,  which  indicated  that  he
     attended Rajya  Samposhit  Uchcha  Vidyalaya,  Baghmara,  a  Government
     school in Dhanbad from January, 1964  to  August,  1964.  In  the  said
     certificate, the date  of  birth  of  the  respondent  is  recorded  as
     February 6, 1950, which is in  conflict  with  his  date  of  birth  as
     entered by him in the service records  being  the  aforementioned  Form
     ‘B’.
  2. Subsequently, in 1983, he was transferred  to  the  Jamunia  Open  Cast
     Project and as stated, he once again signed the Form  ‘B’  wherein  his
     date of birth was recorded as February 15, 1947 and  he  allegedly  did
     not raise any objections then.
  3. In 1986, the  respondent  passed  the  Mining  Sardarship  and  in  the
     certificate acknowledging the same his date of birth  was  recorded  as
     February  6,  1950,  corresponding  to  the  date   recorded   in   the
     aforementioned School Leaving Certificate.   Therefore,  there  existed
     two sets of records of the respondent’s details; first being  the  Form
     ‘B’ register on one hand in which the date of birth was recorded to  be
     February 15, 1947 and second being the Mining  Sardar  Certificate  and
     the School Leaving Certificate wherein the date of birth  was  recorded
     as February 6, 1950.
  4. In 1987, the National Coal Wage Agreement III (hereinafter referred  as
     ‘NCWA III’) being Implementation Instructions were put  into  operation
     for   stabilizing   service   records   of   employees.   Pursuant   to
     Implementation  Instruction  No.  76,  appellant  No.  1  provided  its
     employees with  Nominee  Forms  as  prescribed  by  the  Implementation
     Instructions which contained relevant extracts from the service records
     in the Form ‘B’ register, thereby enabling the  employees  to  identify
     any discrepancy or error in the records and get the same  rectified  as
     per the prescribed procedure. In wake of the same the respondent became
     aware of inconsistencies in the records regarding his  date  of  birth,
     date of appointment, father’s name and permanent address;  therein  the
     respondent made representations to the Project  Officer,  Jamunia  Open
     Cast Project for rectification of  the  abovementioned  errors  and  he
     specifically sought the incorrect date of birth to be corrected as  per
     the date mentioned in the Mining  Sardar  Certificate  and  the  School
     Leaving  Certificate.  It  appears  that  the   concerned   authorities
     rectified the discrepancies regarding the name of the  father  and  the
     permanent address; however the date of birth and  date  of  appointment
     remained unchanged. Thereafter, as stated by the respondent, he made  a
     subsequent representation to the concerned Project Officer on July  16,
     2006 for correction of the date of birth in the Form  ‘B’  register  in
     accordance with the Mining Sardar Certificate and the same was rejected
     by the appellant company vide letter dated July 19, 2006.
  5. The Project Officer vide order  dated  August  2,  2006  intimated  the
     respondent that he is to superannuate from February 28, 2007. Aggrieved
     by the same, the respondent filed a writ bearing W.P. (S)  No.  496  of
     2007 for quashing of the order of superannuation by the Project Officer
     on the grounds that the date of  superannuation  has  been  incorrectly
     calculated by relying on the erroneous date of birth which should  have
     been rectified in terms of the NCWA III, which provided that the Mining
     Sardar Certificate and the School Leaving Certificate must  be  treated
     as authentic documents by the employer as proof of the date of birth of
     the employee. The appellant company without challenging the genuineness
     of the same countered the respondent on the grounds that the  Form  ‘B’
     register was a conclusive proof of date of birth as it was verified  by
     the signature of the employee being the respondent; and having accepted
     the entry then, the respondent is not entitled  to  raise  any  dispute
     after twenty years and at the fag end of his service.  The  High  Court
     while allowing the writ determined that the respondent  did  not  raise
     such a claim at the fag end of his career, rather   such  a  claim  was
     made in 1987 itself and the appellant company  had  failed  to  respond
     suitably to the dispute raised by the respondent.  Thereby,  the  Court
     directed  the appellant company  to conduct an enquiry on the basis  of
     the  certificates  produced  by  the  respondent  and  to   effectively
     communicate to the respondent the  decision  taken  together  with  the
     reasons assigned within three months of the passing of the order.
  6. Aggrieved, the appellant company preferred a Letters Patent Appeal, the
     order in which is impugned herein. The High Court dismissed the  appeal
     having found  no  merit  in  the  same  in  light  of  the  clauses  in
     Implementation Instruction No. 76.
  7. Thereafter, the matter lies before us.
4. The appellant in the present appeal has come before us seeking  that  the
   impugned judgment be set aside. The case of the  appellant  is,  firstly,
   when a  school  leaving  certificate  is  not  a  document  mentioned  in
   Implementation Instruction No.  76,  the  High  Court  was  incorrect  in
   substituting the same with the documents given in the  said  Instruction,
   thereby  creating  a  situation  which  supersedes  all  other  statutory
   documents like Form ‘B’ register. Secondly, the High  Court  should  have
   considered that the date of birth recorded in Form ‘B’ register  being  a
   statutory document under Mines Act is binding and cannot be preceded by a
   non-statutory document and therefore, the inter alia holding of the  High
   Court that School Leaving Certificate and Mining Sardar Certificate would
   take precedence over company records and  other  statutory  documents  is
   contrary to the judgment of this Court in G.M. Bharat Coking  Coal  Ltd.,
   West Bengal  vs. Shib Kumar Dushad and Ors.[1].  Thirdly,  the  appellant
   has challenged the exercise of  jurisdiction  by  the  High  Court  under
   Article 226 considering  that  the  respondent  as  workman  could  avail
   efficacious remedy from the forum under the Industrial Disputes  Act  and
   the respondent could raise such a dispute at the fag end of his career de
   hors the judgment in Bharat Coking Coal Ltd. vs.  Presiding  Officer  and
   Anr[2]. Fourthly, that the documents on which the respondent  has  relied
   being School Leaving Certificate and Mining Sardar  Certificate  are  not
   those mentioned in  Implementation  Instruction  No.  76  for  review  of
   determination of date of birth with respect  to  existing  employees  and
   that the implementation of the impugned order  would  give  way  to  many
   unscrupulous employees to procure such documents and  take  advantage  of
   the same. Fifthly, the respondent while signing the Form ‘B’ register  at
   the time of appointment had verified his date of birth  as  February  15,
   1947 on his joining on January 1, 1973 and later on his transfer in 1983;
   since he is a supervisory  staff  capable  of  reading  and  writing  and
   understanding English his verification  amounts  to  acceptance  and  his
   raising of dispute in 1987, fourteen years after is  incorrect.  Sixthly,
   the appellant has challenged the reliance placed on  the  School  Leaving
   Certificate by the respondent on the grounds that the same was issued  on
   October 12, 1979 six years after his appointment and as the Mining Sardar
   Certificate was based on the same  reliance  on  it  is  also   doubtful;
   furthermore, since both the documents  were  issued  after  the  date  of
   employment they cannot form  basis   of  correction  of  date  of  birth;
   furthermore, the appellant has challenged the correctness  of the  School
   Leaving Certificate on the grounds that the alleged Certificate  was  not
   verified by the District  Education  Commissioner;  that  the  attendance
   register for relevant  period  when  the  respondent  allegedly  attended
   school was not available and the verification was with respect to one Sri
   Birsa Prasad Uranw; it is  further  submitted  that  these  discrepancies
   which were covered by legal inspector of company (who  was  duly  charge-
   sheeted) in  collusion  with  the  respondent  make  the  school  leaving
   certificate dubious. Finally, it was submitted that  the  respondent  has
   raised the issue at the fag end by means of a belated  writ  i.e.  thirty
   years after appointment and after twenty years (as claimed by him) of his
   knowledge.
5. Per contra, the respondent has denied the averments of the appellant  and
   has submitted that he has not disputed his date of birth at the  fag  end
   of his service as  found  by  the  learned  Single  Judge.  It  has  been
   submitted that the respondent  joined service on March 31, 1973, when his
   date of birth was recorded as February 15, 1947 basis  of  which  is  not
   clear; that subsequently in 1986 he cleared his Mining Sardarship and was
   given a Mining Sardar Certificate where his date of birth was recorded as
   February 6,  1950  same  as  in  his  School  Leaving  Certificate;  that
   subsequently in 1987, on noticing the incorrect date of birth  and  other
   details in his service records, the respondent immediately  submitted  an
   application for the correction of his date of birth as February  6,  1950
   and other minor corrections in  his  service  records.  On  receiving  no
   information regarding the same on inquiry  from  his  superiors,  he  was
   given the impression that the necessary  corrections  were  made  in  the
   service  records  and  the  respondent  was  surprised  to  receive   his
   superannuation order in 2006 on the basis of the incorrect date of  birth
   being February 15, 1947.

6. In these circumstances, the respondent has contended,  firstly,  that  it
   is not the case that the respondent disputed date of birth at the end  of
   service, instead he had disputed the same way back in the year  1987,  it
   is the employer who disputed the same at the  fag  end  by  creating  the
   impression that claim of respondent for correction of date of  birth  was
   accepted when, in reality, it was not and even the learned  Single  Judge
   has concurred that the rectification was  not  sought  at  the  fag  end.
   Secondly, it  was  contended  that  the  respondent  has  relied  on  two
   documents for correction of his date of birth as February 6, 1950, namely
   the  statutory  Mining  Sardar  Certificate  and   the   School   Leaving
   Certificate. Thirdly, it has been contended that in light of  the  policy
   contained  in  part   (B)  of  Implementation  Instruction  No.  76,  the
   appellant as per clause (i)(a) accepted the  School  Leaving  Certificate
   but it was contended before the High Court that as the same was issued in
   1979 and as the workman joined service in 1979, the certificate was thus,
   ‘not issued’ prior to the date of employment and  therefore  cannot  form
   the basis of correction of date of birth. However,  this  contention  was
   rejected by the High Court, which  held  that  the  school  records  were
   created prior to joining and a copy issued on a subsequent date does  not
   create a difference as the date of issue of  certificate  refers  to  the
   date when the relevant record was created  on  the  basis  of  which  the
   certificate has been issued. In addition to the same, it  has  also  been
   submitted that the appellate court had granted time to the  appellant  to
   verify the genuineness of the School Leaving Certificate and in  response
   through a supplementary  affidavit,  the  appellants  have  admitted  the
   school  leaving  certificate  to  be  genuine,  thus  contended  by   the
   respondent that as  the  School  Leaving  Certificate  was  found  to  be
   genuine, it warrants no interference. Fourthly, it has been contended  by
   the respondent that his claim for correction was not  considered  on  the
   basis of the Mining Sardar Certificate which as claimed has been given by
   the Central Government and was submitted by him, which is also  mentioned
   as a basis for correction of date of birth in Clause (i)(b) in Part B  of
   Implementation Instruction No. 76.  It  is  further  submitted  that  the
   appellant did not give any reason as to why the Mining Sardar Certificate
   was rejected by them. Finally, the respondent has submitted that  he  was
   made to retire prematurely and not allowed to work inspite of  favourable
   orders from the High Court; furthermore, the respondent filed a  contempt
   petition but was not allowed to work by the petitioners on the pretext of
   pendency of matter before higher courts. It  is  also  the  case  of  the
   respondent that he was not gainfully employed anywhere else  during  that
   period.


7. It is pertinent to note at this point that during the  oral  proceedings,
   this Court vide order dated July  4,  2013  directed  the  appellants  as
   under:

      “List after four weeks to enable the counsel for  the  petitioners  to
      produce the original and also photocopy of the Form ‘B’ register where
      it is alleged that the respondent had affixed  his  signature  on  the
      date of birth which was recorded as 15.02.1947.”


However, as found by us and pointed out by the respondent instead of  filing
the original Form ‘B’ prepared in 1973,  at  the  time  of  joining  of  the
respondent  with  designation  as  Explosive  Carrier  (which   as   claimed
admittedly did not bear the signature of the respondent), filed a  photocopy
of the alleged Form ‘B’ dated January 27, 1987 which showed the  designation
of the respondent to be that of Mining Sardar. It has been submitted by  the
respondent that his signature was taken on the alleged form on  January  27,
1987 while handing over the photocopy of the same for  necessary  correction
of the record.


8. On the basis of the above, we find that within the  given  set  of  facts
   the dispute is regarding the manner in which the date of birth should  be
   determined; whether the reliance should be placed on the set  of  records
   being the Mining Sardar Certificate and the  School  Leaving  Certificate
   which state the date of birth to be February 6, 1950 or  reliance  should
   be placed on the extracts of the Form ‘B’ register which state  the  date
   of birth to be February 15, 1947. The position which emerges on the basis
   of the above is that after having joined service in 1973  when  the  Form
   ‘B’ register was filled and when it was  filled once again in  1983  when
   the  respondent  was  transferred,  there  were   certain   discrepancies
   regarding permanent address, father’s name and date of joining. In  1987,
   when the appellant made  available  the  details  of  all  employees  for
   verification of  service  records,  the  respondent  raised  the  dispute
   regarding his incorrect particulars being the date of  joining,  father’s
   name, permanent address and date of birth. Apparently, the abovementioned
   corrections other than date of birth were made. Thus, it is  evident  and
   correctly determined by the learned Single Judge that the dispute was not
   raised at the fag end of service or on the eve of superannuation  but  it
   was raised  at  the  earliest  possible  opportunity  in  1987  when  the
   respondent became aware of the discrepancy. As the  factum  of  when  the
   dispute was raised is settled what remains to be determined is the  issue
   of date of birth.

9. In the corpus of service law over a period of time,  a  certain  approach
   towards date of birth disputes has emerged in wake of  the  decisions  of
   this Court as an impact created by the change in  date  of  birth  of  an
   employee is akin to the far reaching ripples created when a single  piece
   of stone is dropped into the water. This Court  has succinctly  laid down
   the  same  in  Secretary  and  Commissioner,  Home  Department   vs.   R.
   Kirubakaran (supra), which is as under:-
      “7. An application for correction of the date of birth should  not  be
      dealt with by the tribunal or the High Court keeping in view only  the
      public servant concerned. It need not be pointed  out  that  any  such
      direction for correction of the date of birth of  the  public  servant
      concerned has a chain reaction, inasmuch as others waiting for  years,
      below him  for  their  respective  promotions  are  affected  in  this
      process. Some are likely to suffer irreparable  injury,  inasmuch  as,
      because of the correction of the date of birth, the officer concerned,
      continues in office, in some cases for years, within which  time  many
      officers who are below him in seniority waiting for  their  promotion,
      may lose their promotions for ever.  Cases  are  not  unknown  when  a
      person accepts appointment keeping in view the date of  retirement  of
      his immediate senior. According to us, this is  an  important  aspect,
      which cannot be lost sight of by  the  court  or  the  tribunal  while
      examining the grievance of a public servant in respect  of  correction
      of his date of birth. As such, unless a clear case, on  the  basis  of
      materials which can be held to be conclusive in nature, is made out by
      the  respondent,  the  court  or  the  tribunal  should  not  issue  a
      direction, on the basis  of  materials  which  make  such  claim  only
      plausible. Before any such direction  is  issued,  the  court  or  the
      tribunal must be fully satisfied that there has been real injustice to
      the person concerned and his claim for correction of date of birth has
      been made in accordance with the procedure prescribed, and within  the
      time fixed by any rule or order. If no rule or order has  been  framed
      or made, prescribing the period within which such application  has  to
      be filed, then such application must be filed within the  time,  which
      can be held to  be  reasonable.  The  applicant  has  to  produce  the
      evidence in support of such claim, which  may  amount  to  irrefutable
      proof relating to his  date  of  birth.  Whenever  any  such  question
      arises, the onus is on the applicant, to prove the wrong recording  of
      his date of birth, in his service book. In many cases it is a part  of
      the strategy on the part of such public servants to approach the court
      or the tribunal on  the  eve  of  their  retirement,  questioning  the
      correctness of the entries in respect of their dates of birth  in  the
      service books. By this process, it has come  to  the  notice  of  this
      Court that in many cases, even if ultimately  their  applications  are
      dismissed, by virtue of interim  orders,  they  continue  for  months,
      after the date of superannuation. The  court  or  the  tribunal  must,
      therefore, be slow in granting an interim relief for  continuation  in
      service, unless prima facie evidence  of  unimpeachable  character  is
      produced because if the public servant  succeeds,  he  can  always  be
      compensated, but if he fails, he would have enjoyed undeserved benefit
      of extended service and  merely  caused  injustice  to  his  immediate
      junior.”




The same approach had been followed by this Court while deciding on date  of
birth disputes irrespective of the relief being in favour of the workman  or
the employer. (See: State of Punjab vs. S.C.  Chadha[3],  State  of  U.P.  &
Anr. v. Shiv Narain Upadhyay[4], State of  Gujarat  &  Ors.  v.  Vali  Mohd.
Dosabhai Sindhi[5], State  of  Maharashtra  &  Anr.  vs.  Goraknath  Sitaram
Kamble[6])

10. Another practice followed by the courts regarding such disputes is  that
   date of birth  of  an  employee  is  determined  as  per  the  prescribed
   applicable rules or framework existing in  the  organization.  Even  this
   Court inspite of the extraordinary powers conferred under Article 136 has
   decided date of birth disputes in accordance with  the  applicable  rules
   and seldom has the Court determined the date of birth as it is a question
   of fact fit to be determined by the appropriate  forum.  (See:  State  of
   Maharashtra & Anr. vs.  Goraknath  Sitaram  Kamble  &  Ors.[7]  Registrar
   General, High Court of Madras vs. M. Manickam &  Ors.[8]  High  Court  of
   Andhra Pradesh vs. N. Sanyasi Rao[9] )


  11.  As stated earlier, this Court needs to decide  the  manner  in  which
      date of birth has to be determined. It is the case  of  the  appellant
      that as the respondent raised the dispute at the fag end of his career
      and as there exists a set of records being the Form ‘B’ register which
      is a statutory document in which the date of birth has  been  verified
      by the respondent himself twice, other non statutory documents  should
      not be given precedence and the orders of the High Court must  be  set
      aside. This claim of the appellant  does  not  stand  in  the  present
      matter. As determined, the dispute was not raised at the  fag  end  of
      the career; on the contrary,  it was raised in 1987 almost two decades
      prior to his  superannuation  when  he  first  came  to  know  of  the
      discrepancy. It has been held  in  Mohd.  Yunus  Khan  v.  U.P.  Power
      Corporation Ltd.[10],  that,  “an  employee  may  take  action  as  is
      permissible in law only after coming to know that a mistake  has  been
      committed by the employer.” Thus, the case of  the  respondent  should
      not be barred  on  account  of  unreasonable  delay.  Admittedly,  the
      appellant as the  employer  in  view  of  its  own  regulations  being
      Implementation Instruction No. 76 contained in the National Coal  Wage
      Agreement III, gave all its employees a chance to identify and rectify
      the discrepancies in the service records by providing them  a  nominee
      form containing details of their service records. This  initiative  of
      the appellants clearly indicated the existence of  errors  in  service
      records of which the appellants were aware  and were taking  steps  to
      rectify the same. Against this backdrop, the stance of  the  appellant
      that the records in the Form ‘B’ register must be relied upon does not
      hold good as it is admitted by the appellant that  errors  existed  in
      the same. Even a perusal of the nominee form  exhibits  the  ambiguity
      regarding the date of birth and date of joining. It  was  due  to  the
      discrepancies  which  subsisted  that  the  appellants  gave  all  its
      employees a chance to rectify the same.  In  such  circumstances,  the
      appellants are bound by their actions and their attempt  to  deny  the
      claims of the respondent is incorrect. The  respondent  in  this  case
      duly followed the procedure available and the attempt of the appellant
      to deny the claim of the respondent on the basis  of  technicality  is
      incorrect. We, therefore, feel  that  the  learned  Single  Judge  has
      correctly held that:

      “11. Having given the petitioner, like all employees, the  benefit  of
      seeking correction of the entries contained in their  service  records
      including their date  of  birth,  the  petitioner’s  claim  cannot  be
      denied, merely because he had signed upon the Form ‘B’ Register at the
      time of its opening and containing  the  entry  of  date  of  birth  a
      recorded therein.”


12. The appellant in the present case should have followed the procedure  as
   laid down by Implementation Instruction No. 76 to determine the  date  of
   birth of an existing employee. The provisions of which  read as follows:

      “(B)   Review determination of date of birth in  respect  of  existing
      employees.


         (i)(a)   In  the  case  of  the  existing  employees  Matriculation
      Certificate of (sic: or) Higher Secondary Certificate  issued  by  the
      recognized Universities of Board or Middle Pass Certificate issued  by
      the Board of Education and/or Department  of  Public  Instruction  and
      admit cards issued by  the  aforesaid  Bodies  should  be  treated  as
      correct provided they were  issued  by  the  said  Universities/Boards
      Institutions prior to the date of employment.


         (i)(b)    Similarly, Mining Sardarship, winding engine  or  similar
      other statutory certificate where the Manager had to certify the  date
      of birth will be treated as authentic.


            Provided that where  both  documents  mentioned  in  (i)(a)  and
      (i)(b) above are available, the date of birth recorded in (i)(a)  will
      be treated as authentic


          (ii)       Wherever there is no variation in records,  such  cases
      will not be reopened unless there is a very glaring and apparent wrong
      entry brought to the notice of the Management.  The  Management  after
      being satisfied on the merits of the case will take appropriate action
      for correction through determination committee/medical board.


              (C) Age Determination Committee/medical Board  for  the  above
      will be constituted by the Management. In the case of employees  whose
      date of birth cannot be determined in accordance  with  the  procedure
      mentioned in (B) (i) (a) or (B) (i)  (b)  above,  the  date  of  birth
      recorded in the records of the company, namely, Form ‘B’ register, CMP
      Records and Identity Cards (untampered)  will  be  treated  as  final.
      Provided that where there is a variation, in the age recorded  in  the
      records mentioned above, the  matter  will  be  referred  to  the  Age
      Determination Committee/Medical Board constituted  by  the  Management
      for the determination of age.


               (D)   Age   determination:   by   the    Age    Determination
      Committee/Medical Board referred to above may consider their  evidence
      available with the colliery management; and/or


           (E) Medical Board constituted for determination of  age  will  be
      required to manage  (sic  assess)  the  age  in  accordance  with  the
      requirement of medical jurisprudence and the Medical Board will as far
      as possible indicate the accurate age assessed and not approximately.”

        In another case, being G.M. Bharat Coking Coal Ltd. vs.  Shib  Kumar
Dushad (supra) where the date of birth of an employee of the  Bharat  Coking
Coal was in dispute and the same set of instructions were  applicable,  this
court referring to the Implementation Instruction held that:
      “20. From the provisions in the instructions referred to above, it  is
      clear that in case of dispute over the date of birth  of  an  existing
      employee who has neither a Matriculation Certificate/Secondary  School
      Certificate nor a statutory  certificate  in  which  the  Manager  has
      certified the entry regarding the date of birth to  be  authentic  the
      employer is to refer the matter to the Medical Board.”


13. We give due regard to the sensitive nature of  date  of  birth  disputes
   and fully agree with the approach  laid  down  in   R.  Kirubakaran  Case
   (supra). However, with an aim to  prevent  the  cascading  inconveniences
   caused by a change of date of birth, a wronged  employee  should  not  be
   denied of his rights especially when he has adhered to the procedure laid
   down  and  attempted  to  avoid  litigation  by  resorting  to   in-house
   mechanisms. Public  Corporations/Departments,  should  not  benefit  from
   their own omission of duty. In the present  case,  the  appellant-company
   failed to follow  the  procedure  as  laid  down  in  the  Implementation
   Instruction. It is the appellant’s omission and not the inaction  of  the
   respondent which led to the dispute being raised in the courts at such  a
   delayed stage. The attitude of such corporations  wherein  to  avoid  the
   rectification of a date of birth, litigation is  unnecessarily  prolonged
   just because they have number of resources at their command, goes against
   the grain of equity and duty towards society at large.

14.   As noted by us, the respondent in 1987 on coming to know of the  wrong
   recording of his date of birth in his service records from the nomination
   form sought rectification. Therefore, such rectification was  not  sought
   at the fag end of his service. We have  further  noticed  that  the  High
   Court duly verified the genuineness of the school leaving certificate  on
   the basis of a supplementary affidavit filed by Shri Dilip Kumar  Mishra,
   legal inspector of the appellant company on  September 6, 2010 before the
   High Court. It has been admitted in the said supplementary affidavit that
   the school leaving certificate has been verified and has been found to be
   genuine. We have further noticed that  Implementation  Instruction  No.76
   clause (i)(a) permits rectification of the date of birth by treating  the
   date of birth mentioned in the school leaving certificate to  be  correct
   provided such certificates were issued  by  the  educational  institution
   prior to the date of employment. The question of interpreting  the  words
   ‘were issued’ was correctly interpreted, in  our  opinion,  by  the  High
   Court which interpreted the said words for the  purpose  of  safeguarding
   against misuse of the certificates for  the  purpose  of  increasing  the
   period of employment.  The High Court  correctly  interpreted  and  meant
   that these words will not apply where the school records  containing  the
   date of birth were available long before the starting of the  employment.
   The date of issue of certificate actually intends to refer  to  the  date
   with the relevant record  in  the  school  on  the  basis  of  which  the
   certificate has been issued. A  school  leaving  certificate  is  usually
   issued at the time of leaving the school by the student,  subsequently  a
   copy thereof also can be obtained where  a  student  misplaces  his  said
   school leaving certificate and applies for  a  fresh  copy  thereof.  The
   issuance of fresh  copy  cannot  change  the  relevant  record  which  is
   prevailing in the records of the school from the date  of  the  admission
   and birth date of the student, duly entered in the records of the school

15.  Therefore,  the  order  of  the  High  Court  does  not  call  for  any
   interference. We endorse the reasoning given by the High Court and affirm
   the same.

16. In these circumstances,  we  do  not  find  any  merit  in  the  appeal.
   Accordingly, this appeal is dismissed.


                                             …....……………………..J.
                                             (Gyan Sudha Misra)



New Delhi;
.........…………………….J.
March 25, 2014.                                          (Pinaki Chandra
Ghose)



-----------------------
[1]    (2000) 8 SCC 696
[2]    (1995) Suppl. 2 SCC 598
[3]    (2004) 3 SCC 394
[4]    (2005) 6 SCC 49
[5]    (2006) 6 SCC 537
[6]    (2010) 14 SCC 423
[7]    (2010) 14 SCC 423
[8]    (2011) 9 SCC 425
[9]    (2012) 1 SCC 674
[10]   (2009) 1 SCC 80

-----------------------


23

Section 15(2) of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 - reopening of a case already decided under repealed Act, on the plea of fraud - Collector issued notice - challanged on the plea of limitation and relevancy - Writ was dismissed - Apex court too confirmed the order of High court and held that when there is an allegation of fraud which requires an enquiry. Therefore, the notice has been issued only to make an enquiry in the matter. Hence, in the given facts, such notice cannot be said to be bad at this stage. The appellant would only face the enquiry. In view of that, we do not intend to interfere with the order passed by the High Court. However, we also restrain ourselves from making any comment with regard thereto. The point of limitation also can be urged by the appellant before the said authorities.= Vikram Singh & Anr. … Appellants Vs. State of Rajasthan & Ors. … Respondents = 2014 (April. Part)http://judis.nic.in/supremecourt/filename=41469

   Section 15(2) of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973  - reopening of a case already decided under repealed Act,  on the plea of fraud - Collector issued notice - challanged on the plea of limitation and relevancy - Writ was dismissed - Apex court too confirmed the order of High court and held that when there is an allegation of fraud which requires an enquiry. Therefore, the notice has been issued only to make an enquiry in the matter.  Hence,  in the given facts, such notice cannot be said to be bad at this stage.  The appellant would only face the enquiry. In view of that, we do not  intend to interfere with the order passed by the High Court.  However,  we  also restrain ourselves from making any comment with regard thereto. The point of limitation also  can  be  urged  by  the  appellant  before  the said authorities.=
whether  in
      view of the provisions of Section 15(2) of the Rajasthan Imposition of
      Ceiling on Agricultural Holdings Act, 1973 (hereinafter referred to as
      ‘the Act of 1973’), the Collector has any jurisdiction to initiate any
      proceedings for making reference to the Board of Revenue in respect of
      an order passed on June 30, 1970 for determining the ceiling  area  of
      the land that could be held  by  the  petitioners  (appellants)  under
      Chapter III-B of the Rajasthan Tenancy Act, 1955 (hereinafter referred
      to as ‘the Act of 1955’). =
“15(2) Without prejudice to any other remedy that may be available  to
      it under the Rajasthan Tenancy Act, 1955 (Rajasthan Act 3 of 1955), if
      the State Government, after calling for the record  or  otherwise,  is
      satisfied that any final order passed in any matter arising under  the
      provisions repealed  by  Section  40,  is  in  contravention  of  such
      repealed provisions and that such order is prejudicial  to  the  State
      Government or that on account of the discovery of  new  and  important
      matter or evidence which has since come to its notice, such  order  is
      required to be reopened, it may direct any officer subordinate  to  it
      to reopen such decided matter and to decide it  afresh  in  accordance
      with such repealed provisions.”=
Thus, Section 15(2) has two components: The first part  saves  the  right
   of the State Government or any other person to pursue any remedy which is
   already available under the Rajasthan Tenancy Act; the second part refers
   to power to re-open and it is also subject  to  several  riders  that  it
   could be re-opened within a stipulated period of seven years.=

It is also revealed from  the  facts  that
   there is an allegation of fraud which requires an enquiry. Therefore, the
   notice has been issued only to make an enquiry in the matter.  Hence,  in
   the given facts, such notice cannot be said to be bad at this stage.  The
   appellant would only face the enquiry. In view of that, we do not  intend
   to interfere with the order passed by the High Court.  However,  we  also
   restrain ourselves from making any comment with regard thereto. The point
   of limitation also  can  be  urged  by  the  appellant  before  the  said
   authorities.

2014 (April. Part)http://judis.nic.in/supremecourt/filename=41469                                    GYAN SUDHA MISRA, PINAKI CHANDRA GHOSE                 
NOT-REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.1958 OF 2003


Vikram Singh & Anr.                          … Appellants

                                     Vs.

State of Rajasthan & Ors.                    … Respondents


                               J U D G M E N T

Pinaki Chandra Ghose, J.



   1. This appeal is directed against an order passed by the High  Court  of
      Judicature for Rajasthan at  Jodhpur,  dismissing  the  writ  petition
      filed by the appellants/writ-petitioners with  liberty  to  the  writ-
      petitioners to raise  the  defence  before  the  Collector  which  was
      available to them.





   2. The issue raised before the High Court on the question is  whether  in
      view of the provisions of Section 15(2) of the Rajasthan Imposition of
      Ceiling on Agricultural Holdings Act, 1973 (hereinafter referred to as
      ‘the Act of 1973’), the Collector has any jurisdiction to initiate any
      proceedings for making reference to the Board of Revenue in respect of
      an order passed on June 30, 1970 for determining the ceiling  area  of
      the land that could be held  by  the  petitioners  (appellants)  under
      Chapter III-B of the Rajasthan Tenancy Act, 1955 (hereinafter referred
      to as ‘the Act of 1955’). The facts of the case, in brief,  which  are
      necessary for deciding the question are that Chapter III-B of the  Act
      of  1955  was  introduced  by  Section  3  of  the  Rajasthan  Tenancy
      (Amendment)   Act,   1980   published   in   the   Rajasthan   Gazette
      Extraordinary, Part IV-A dated 21.3.1960 vide Notification No.  F.6(2)
      Rev. B/70 (I) and this  chapter  came  into  force  with  effect  from
      15.12.1963. Chapter III-B provides “Restriction  of  holding  land  in
      excess of ceiling  area”.  Chapter  III-B  contains  various  sections
      providing for declaration of the extent of agricultural land which can
      be held by agriculturists and the  mode  of  determination  of  excess
      agricultural land. The agriculturists are required to surrender excess
      land which shall vest in the State Government. As per  the  provisions
      of Chapter III-B of the Act of  1955,  appointed  date  was  fixed  as
      1.4.1966 by the agriculturists in accordance with  the  provisions  of
      Chapter III-B.





   3. It appears that one Ummaid Singh, ancestor of the appellants submitted
      a return before the Sub-Divisional Officer, Jalore, upon which a  case
      was registered bearing No.13/68. During  the  pendency  of  the  case,
      Ummaid Singh expired. His successors-in-interest were taken on  record
      and the proceedings were completed. The S.D.O. held by an order  dated
      September 30, 1979 that 514-1/2 standard acres of land were surplus in
      the hands of the agriculturists.  The  land  was  surrendered  by  the
      petitioner in pursuance of the said order and no appeal was preferred.
      Hence, the said order became final. The Act of 1955 was repealed by an
      Ordinance and thereafter by the Act of 1973, which came into force  on
      1.1.1973, the State Government was given power to avail  the  remedies
      under the Act of 1973 against the case decided under the  old  ceiling
      law of Chapter III-B by making provision under Section  15(2)  of  the
      Act of 1973. The old law of ceiling has been saved for this purpose by
      virtue of Section 40 of the Act of 1973.


   4. It appears from the facts that an application  was  filed  before  the
      District Collector, Jalore by the Tehsildar under Section 232  of  the
      Act of 1955 with a prayer to re-open the mutation made  in  accordance
      with the decision in Ceiling Case No.13/68 of the predecessors of  the
      petitioners and prayed for cancellation of the said  decision  and  to
      refer the matter before the Board of  Revenue.  On  such  prayer,  the
      District Collector issued notice dated August 11, 1999 fixing  a  date
      that is September 8, 1999.  The  issuance  of  such  notice  had  been
      challenged on the ground of inordinate delay  in  initiation  of  such
      proceedings under Section 232. In these circumstances, the  appellants
      filed a writ petition challenging the notice dated 11.8.1999.


   5. Mr. Sushil Kumar Jain,  learned  counsel  appearing  in  this  matter,
      submitted that the Act of 1973 is a special Act and  a  complete  Code
      specifically dealing with the issues of agriculture  land  ceiling  in
      the State of Rajasthan. He submitted that in relation  to  cases  that
      have attained finality under the repealed law,  Section  15  has  been
      enacted which is the only source of power in relation to cases already
      decided under the repealed law.  The  power  that  is  provided  under
      Section 15(2) of the Act can be exercised to re-open the cases already
      decided. He further submitted that once Chapter III-B of the Rajasthan
      Act of 1955 has been repealed, power under Section 232 cannot be  used
      or utilized to determine or re-determine the issues relating  to  land
      ceiling. The said action, according to him,  can  now  only  be  taken
      under the provisions of the Act of 1973. Therefore, no right has  been
      conferred upon the authorities which can be exercised under the Act of
      1955 excepting all steps can be taken under the 1973 Act.  He  further
      submitted that Section 40 of the 1973  Act  has  repealed  the  entire
      Chapter III-B except for the purposes of  second  proviso  to  Section
      4(1) and Section 15(2) of the 1973 Act. Since  Section  40  saves  the
      said Chapter for the purposes of Section 15(2) only,  latter  part  of
      Section 15(2) specifically enables the authorities to decide the cases
      in accordance with the repealed provisions.  Therefore,  he  submitted
      that Chapter III-B is not  saved  for  the  purpose  of  Section  232.
      Therefore, he further submitted that there would be  no  existing  law
      under which re-determination can be made once the power  is  exercised
      under Section 232. It is necessary for us to quote Section 15 at  this
      stage for our purpose :





      “15(2) Without prejudice to any other remedy that may be available  to
      it under the Rajasthan Tenancy Act, 1955 (Rajasthan Act 3 of 1955), if
      the State Government, after calling for the record  or  otherwise,  is
      satisfied that any final order passed in any matter arising under  the
      provisions repealed  by  Section  40,  is  in  contravention  of  such
      repealed provisions and that such order is prejudicial  to  the  State
      Government or that on account of the discovery of  new  and  important
      matter or evidence which has since come to its notice, such  order  is
      required to be reopened, it may direct any officer subordinate  to  it
      to reopen such decided matter and to decide it  afresh  in  accordance
      with such repealed provisions.”






   6. He further pointed out that the entire provision of Section  15(2)  is
      subject to the second proviso which  lays  down  limitation  of  seven
      years or up to 30th June, 1979. According to him, Section 15(2)  saves
      the “remedies” against a “final order”  and  not  “powers”  under  the
      Rajasthan Tenancy Act. He submitted that against a “final order”,  the
      remedy is in the nature of an appeal under Section 55 of the Rajasthan
      Tenancy Act or review under Section 225  of  the  Act.  Therefore,  he
      submitted that at this stage the authority cannot reopen the same.  He
      further submitted that the power under Section 232  is  sought  to  be
      exercised after 29 years which cannot, by any stretch of  imagination,
      be construed as a reasonable period to sustain the initiation of  such
      proceedings. In these circumstances, he submitted that the High  Court
      was wrong in dismissing the writ petition and remit the matter  before
      the authority for consideration.


   7. Per contra, it is submitted by Dr. Manish Singhvi that  Chapter  III-B
      is a substantive law with  regard  to  the  determination  of  ceiling
      proceedings and does not provide for  any  machinery  provisions  with
      regard to the computation of  ceiling. The machinery  provisions  like
      computation of ceiling land,  appeals,  reference  and  revision  were
      provided by the Act of 1955. The Rajasthan Imposition  of  Ceiling  on
      Agricultural Holdings Act, 1973 repealed Chapter III-B of the  Act  of
      1955. The repeal of  Chapter  III-B  by  the  Act  of  1973  has  both
      substantive as well as procedural aspects. Accordingly,  he  submitted
      that the substantive rights and liabilities under  Chapter  III-B  are
      being saved by Section 40 of the repealing Act as well as Section 6 of
      the General Clauses Act. In support of his contention,  he  relied  on
      the Constitution Bench judgment of this Court reported in Bansidhar  &
      Ors. v. State  of  Rajasthan  &  Ors.[1]  He  drew  our  attention  to
      paragraph 39 of the said judgment and  submitted  that  the  State  of
      Rajasthan has an accrued  or  vested  right  to  the  excess  land  as
      available on 1.1.1966 in terms of Chapter III-B of the  Act  of  1973.
      Therefore, the substantive rights are duly  saved  in  favour  of  the
      State of Rajasthan and if there is any excess land then  it  ought  to
      have been surrendered to the State of Rajasthan by the appellant/s.


   8. He further contended that the main question that  the  procedural  law
      which is to be applied for purposes of  determination  of  substantive
      rights which have accrued in favour of State of Rajasthan in terms  of
      excess land under Chapter III-B of the  ceiling  law  is  governed  by
      Chapter 15(2) of the Act of 1973. Section 15(2) begins with a rider or
      caveat which states as follows :


      “Without prejudice to any other remedy that  may  be  available  under
      Rajasthan Tenancy Act, 1955, if the State Government….”





9. Thus, Section 15(2) has two components: The first part  saves  the  right
   of the State Government or any other person to pursue any remedy which is
   already available under the Rajasthan Tenancy Act; the second part refers
   to power to re-open and it is also subject  to  several  riders  that  it
   could be re-opened within a stipulated period of seven years.


10. The power under Section 15(2) of the  Rajasthan  Tenancy  Act  has  been
   saved and the State of Rajasthan in exercise of power  proceeded  in  the
   matter to avail the remedy under the said Act. Accordingly, the State has
   exercised its power under Section 232 of the said Act, and no  limitation
   has been prescribed to reopen the proceedings at any point of time  which
   have been obtained by fraud or misrepresentation. This aspect of  section
   15(2)  delineated in two parts is  also  brought  forth  clearly  in  the
   impugned judgment.


11. Therefore, the words “Without prejudice to any other remedy that may  be
   available under Rajasthan Tenancy Act, 1955” would be rendered surplus or
   redundant if it has to be read only as power to reopen within a period of
   seven years. The power to reopen was  conferred on the  State  Government
   in addition to the existing power under the Rajasthan Tenancy Act.  Thus,
   the power of rider of limitation of seven years would only arise  if  the
   State Government was to reopen the proceedings. The  power  exercised  in
   the present case is emanating out of Section 232 of the Rajasthan Tenancy
   Act which stands duly protected and preserved  by  first  four  lines  of
   Section 15(2) of the Act of 1973.


12. If the arguments canvassed by the  appellants  are  accepted,  then  the
   State Government would be denuded of its power to refer any matter to the
   Revenue Board even if fraud, collusion or misrepresentation comes to  the
   knowledge of the State Government. The State Government cannot be denuded
   of its power to rectify any mistake which has been committed  earlier  on
   account  of  fraud,  misrepresentation  or  matters  pertaining  to  void
   transactions. Thus, the exercise of power is imperative and it  has  been
   expressly provided in first four lines of Section 15(2) itself  which  is
   in addition to power of reopening, which of course is no longer available
   within limitation of seven years.


13. He further submitted that Section 232 of the Rajasthan Tenancy Act  does
   not prescribe any period of limitation. Thus, when there is no period  of
   limitation, power can be exercised at any point  of  time.  According  to
   him, the reasonable period of time in exercise of power is essentially  a
   question of fact. The High Court  has  abdicated  its  responsibility  to
   determine  the  reasonable  period  of  time  and  has  left  it  to  the
   authorities to determine the same. Therefore, the reasonableness  of  the
   period of time has to be decided by the authorities  below  even  if  the
   petition is dismissed. He further relied upon a Full  Bench  decision  of
   Rajasthan High Court in Chiman Lal vs. State of Rajasthan  &  Ors.[2]  In
   support  of  his  contention,   he  contended  that  when  no  period  of
   limitation is provided then it has to be exercised  within  a  reasonable
   time and that will depend upon the facts and circumstances of  each  case
   like: when there is a  fraud  played  by  the  parties;  the  orders  are
   obtained by misrepresentation or collusion with public  officers  by  the
   private parties; orders are against the public interest; the  orders  are
   passed by the authorities who have no jurisdiction; the orders are passed
   in clear violation  of  rules  or  the  provisions  of  the  Act  by  the
   authorities; and void orders or the  orders  are  void  ab  initio  being
   against the public policy or otherwise. The common law doctrine of public
   policy can be enforced wherever  an  action  affects/offends  the  public
   interest or where harmful result of permitting the injury to  the  public
   at large is evident. In such type of  cases,  revisional  powers  can  be
   exercised by the authority at any time either suo motu  or  as  and  when
   such orders are brought to their notice.





14. The exercise of power whether it is reasonable or not would depend  upon
   whether the proceedings on earlier occasion were after due  consideration
   of facts or due  to  fraud  or  misrepresentation.  The  learned  counsel
   further submitted that it is a settled  proposition  of  law  that  fraud
   vitiates all transactions and the point of limitation  would  never  come
   whenever the fraud is alleged. In the instant case, according to him, the
   appellant has directly availed of writ remedy against the notices  issued
   for reference and the appellant got liberty to agitate all points  as  to
   whether the fraud was played or not and, secondly,  whether  exercise  of
   power was  belated  or  not.  Basically,  the  question  is  whether  the
   competent  authority  or  reference  under  Section  232  was  based   on
   fraudulent representation or not. It is quintessentially  a  question  of
   fact to be determined by Reference Board which is  in  the  nature  of  a
   tribunal. The High Court has also remitted the matter  to  the  competent
   authority to decide the said question in the context of Chiman Lal’s case
   (supra).


15. After considering the submissions made on  behalf  of  the  parties  and
   after considering the counter  filed  before  this  Court  to  which  our
   attention has been drawn, it appears  that  the  facts  which  have  been
   pleaded by the respondents in the counter would show that on the basis of
   the misrepresentation, the order passed in the  land  ceiling  cases,  in
   particular Ceiling Case No.13/68 and the declaration which was  filed  by
   the ancestors of the appellants, would reveal that the declarations which
   have been given by the  predecessors  of  the  appellant,  suffered  from
   suppression of material facts. It is also revealed from  the  facts  that
   there is an allegation of fraud which requires an enquiry. Therefore, the
   notice has been issued only to make an enquiry in the matter.  Hence,  in
   the given facts, such notice cannot be said to be bad at this stage.  The
   appellant would only face the enquiry. In view of that, we do not  intend
   to interfere with the order passed by the High Court.  However,  we  also
   restrain ourselves from making any comment with regard thereto. The point
   of limitation also  can  be  urged  by  the  appellant  before  the  said
   authorities.


16. In our opinion, we do not find any reason to interfere  with  the  order
   passed by the High Court. We accept the reasoning of the High Court.  The
   submissions made on behalf of the appellants, in our opinion,  cannot  be
   accepted by us as the  same  have  no  substance  and  further  fraud  as
   alleged, if proved, all steps would vitiate. On the contrary, it  appears
   that the submissions made on behalf of the respondents have substance and
   we accept contentions of the respondents. In the result, we find no merit
   in the appeal and the same is dismissed.




                                              …………………………….J.
                                              (Gyan Sudha Misra)




New Delhi;                                        ……………………………J.
April 25, 2014.                              (Pinaki Chandra Ghose)


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[1]     (1989) 2 SCC 557
[2]     RLR 2000 (2) 39