Fraud in Sale of 1/4th share of House(not possible to division) to other than the purchasers of 3/4th share from the two parties of partition suit out of three - No notice was given when the 1/4th purchaser as nominee of 3/4th share purchasers sought permission to purchase - No notice was given to 3/4th share purchasers, while modifying the nominee status of 1/4th share purchaser as to the individual status - clear case of fraud on court liable to be set aside - No agreement of sale is necessary - when court permitted for sale of property - without agreement of sale , a suit for specific performance is maintainable as there is an understanding between vendor and vendee = Mohammad Hafizullah & Ors. ... Appellants Versus Javed Akhtar & Ors. ... Respondents = 2014 – July. Part – http://judis.nic.in/supremecourt/filename=41733

 Fraud in Sale of 1/4th share of House(not possible to division) to other than the purchasers of 3/4th share from the two parties of partition suit out of three - No notice was given when the 1/4th purchaser as nominee of 3/4th share purchasers sought permission to purchase - No notice was given to 3/4th share purchasers, while modifying the nominee status of 1/4th share purchaser as to the individual status - clear case of fraud on court liable to be set aside - 
No agreement of sale is necessary - when court permitted for sale of property - without agreement of sale , a suit for specific performance is maintainable as there is an understanding between vendor and vendee =

 It is an admitted fact that as per the consent decree passed  in  Suit
No.1274 of 1957 by the Calcutta High  Court,  the  property,  a  residential
house, situated at 34, Elliot Road,  Kolkata,   belonged  to  Shri  Nagendra
Bala Guha, Shri Hari Ranjan Guha and  Smt.  Kanak  Nahar.   The  said  three
owners owned one-half, one-fourth and one-fourth share respectively  of  the
said property.  In this appeal, we are concerned only with one-fourth  share
of the said property, which belonged to Smt. Kanak Nahar, who is  respondent
no.3 in this appeal.=
Upon perusal of the order dated 16th July, 1984  passed  by  the  High
Court, one can clearly visualise that there must had been  an  understanding
between Smt. Kanak Nahar on one hand and Shri Javed Akhtar and  Shri  Parvez
Akhtar on the other that one-fourth share of the property belonging to  Smt.
Kanak Nahar would be sold to Shri Javed Akhtar and Shri Parvez  Akhtar.   In
our opinion, it is not necessary to go into the  fact  whether  any  written
agreement to sell had been entered into between  Smt.  Kanak  Nahar  on  one
hand and Shri Javed Akhtar and Shri Parvez Akhtar on  the  other.  The  fact
remains that the High Court had permitted  Smt.  Kanak  Nahar  to  sell  her
share to the proposed buyers, viz. Shri Javed Akhtar and Shri Parvez  Akhtar
or to their nominee.  Had there not been any understanding among  these  two
parties, viz., the buyer and the seller, possibly the High Court  would  not
have referred to the names of Shri Javed Akhtar and Shri  Parvez  Akhtar  as
proposed buyers of the share of Smt. Kanak Nahar.

21.   It is also pertinent to note that it was not possible  to  divide  the
property by metes and bounds.  The entire problem  had  arisen  because  the
property was not divisible by metes and bounds  and  therefore,  a  Receiver
had to be appointed.   There is no dispute with  regard  to  the  fact  that
three-fourth share of the property in question had been  purchased  by  Shri
Javed Akhtar and Shri Parvez Akhtar in pursuance of the  permission  granted
by the High Court by an order dated 16th July, 1984.  If  the  property  was
not divisible, one can very well believe that owner  of  three-fourth  share
of an indivisible property would  be  ready  and  willing  to  purchase  the
remaining one-fourth share of the said property  and  normally  no  outsider
would ever think of purchasing one-fourth share of an indivisible part of  a
residential house.  These factors clearly denote that  there  must  be  some
understanding among Smt. Kanak Nahar and Shri Javed  Akhtar  &  Shri  Parvez
Akhtar in relation to purchase of the share of Smt. Kanak Nahar.

22.   There is nothing on record to show that  Shri  Javed  Akhtar  or  Shri
Parvez Akhtar had appointed  Smt.  Shamima  Khanam,  the  wife  of  Mohammad
Hafizullah – a lawyer and uncle of Shri Javed Akhtar and Shri Parvez  Akhtar
as their nominee.  There is nothing to show that any notice had been  issued
to Shri Javed Akhtar and Shri Parvez Akhtar before order  dated  28th  June,
1985 was passed.  By virtue of the said order, Smt.  Kanak  Nahar  had  been
directed to execute sale deed in favour of Smt. Shamima  Khanam.   Moreover,
no notice was issued to Shri Javed Akhtar and Shri Parvez  Akhtar  when  the
order dated 28th June, 1985 had been modified.   It  is  important  to  note
that if an order had been passed in favour of Shri  Javed  Akhtar  and  Shri
Parvez Akhtar on 16th July, 1984, there was no reason  for  the  High  Court
not to hear these two persons while passing a fresh  order,  whereby  buyers
had been changed from Shri Javed Akhtar  and  Shri  Parvez  Akhtar  to  Smt.
Shamima Khanam.

23.   The findings with regard to the fraud are findings  of  fact.    After
appreciation of the entire evidence, the trial Court as  well  as  appellate
Court have come to a conclusion that a fraud  had  been  committed,  whereby
one-fourth share of Smt. Kanak  Nahar  had  been  sold  in  favour  of  Smt.
Shamima Khanam.   We had gone through the evidence which had  been  produced
by the learned counsel appearing for  the  present  appellants.   Even  upon
perusal of the said evidence, we are  not  persuaded  to  believe  that  the
findings of fact arrived at by the Courts below are not correct.

24.   For the aforestated reasons, we are of  the  view  that  there  is  no
substance in this appeal and the orders passed by the Courts below are  just
and proper and therefore, we dismiss the appeal with no order as to costs.

2014 – July. Part – http://judis.nic.in/supremecourt/filename=41733

                                                               REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.4712 OF 2007


Mohammad Hafizullah & Ors.              ... Appellants

                                   Versus

Javed Akhtar & Ors.                     ... Respondents




                               J U D G M E N T



ANIL R. DAVE, J.


1.    Being aggrieved by the judgment  and  order  dated  26th  June,  2007,
delivered in A.P.D. No.614 of 2005 by  the  High  Court  of  Calcutta,  this
appeal has been filed against the concurrent  findings  arrived  at  by  the
High Court in the aforestated appeal.

2.    Facts which are relevant for  the  purpose  of  determination  of  the
present appeal in a nutshell are as follows :

      It is an admitted fact that as per the consent decree passed  in  Suit
No.1274 of 1957 by the Calcutta High  Court,  the  property,  a  residential
house, situated at 34, Elliot Road,  Kolkata,   belonged  to  Shri  Nagendra
Bala Guha, Shri Hari Ranjan Guha and  Smt.  Kanak  Nahar.   The  said  three
owners owned one-half, one-fourth and one-fourth share respectively  of  the
said property.  In this appeal, we are concerned only with one-fourth  share
of the said property, which belonged to Smt. Kanak Nahar, who is  respondent
no.3 in this appeal.

3.    As the property belonged to the aforestated three persons  and  as  it
was not possible to divide the same by metes and bounds, a prayer  had  been
made to the High Court for permitting sale  of  three-fourth  share  of  the
property belonging to Shri Nagendra Bala Guha and Shri Hari Ranjan  Guha  to
present respondent nos.1 and 2  i.e.  Shri  Javed  Akhtar  and  Shri  Parvez
Akhtar, who are brothers.  In the said proceedings,  Smt.  Kanak  Nahar  had
also filed an application with a prayer that she be also permitted  to  sell
her one-fourth share to the present respondent nos.1  and  2  –  Shri  Javed
Akhtar and Parvez Akhtar.

4.    The said application had been granted by an  order  dated  16th  July,
1984 by the High Court.   With regard to the share of Smt. Kanak Nahar,  the
High Court was pleased to observe as under, in the said order :
 “................ and it is further ordered that in the event of  defendant
Smt. Kanak Nahar selling her share to the proposed purchasers  Javed  Akhtar
and Parvez Akhtar or their nominee or nominees, the names of the  purchasers
need not be recorded in the suit and they need not continue the suit and  it
is further ordered that the said defendant Smt. Kanak Nahar  be  at  liberty
to sell her share to the proposed purchasers Javed Akhtar and Parvez  Akhtar
or their nominee or nominees and.......................”


5.     The  aforestated  facts  denote  that  Smt.  Kanak  Nahar  must  have
discussed the matter with regard to  sale  of  her  share  with  Shri  Javed
Akhtar and Shri Parvez Akhtar, and they must have decided  to  purchase  the
share of Smt. Kanak Nahar.

6.    As the three-fourth share of  the  property  in  question  was  to  be
purchased by Shri Javed Akhtar and Shri Parvez Akhtar,  one  can  very  well
presume that except the aforestated two persons, no other  person  would  be
interested in purchase of the remaining one-fourth share  in  the  property,
which was a residential house and it was impossible to divide  the  same  by
metes and bounds.  Smt. Kanak Nahar’s prayer before the High  Court  seeking
permission to sell her share also to  Shri  Javed  Akhtar  and  Shri  Parvez
Akhtar appears to be quite reasonable as the said sale would  bring  an  end
to a long drawn litigation which had  started  in  1957.   The  High  Court,
therefore, had rightly permitted Smt. Kanak Nahar  to  sell  her   share  to
Shri Javed Akhtar and Shri Parvez Akhtar.

7.    After the permission had been granted by the High  Court  with  regard
to sale of three-fourth share in the property in dispute in favour  of  Shri
Javed  Akhtar  and  Shri  Parvez  Akhtar,  necessary  formalities  had  been
completed and three-fourth share of the said property had  been  transferred
in favour of Shri Javed Akhtar and Shri Parvez Akhtar.

8.    The dispute  involved  in  this  appeal  starts  with  an  application
submitted by Smt. Shamima Khanam to the High Court  with  a  grievance  that
Smt. Kanak Nahar was not showing her willingness to execute  the  sale  deed
with respect to her share in her favour, though she was bound  to  sell  her
share to Shri Javed Akhtar and Shri Parvez Akhtar  or  their  nominee.   The
said application was granted on 28th June, 1985, whereby  Smt.  Kanak  Nahar
was directed to execute sale deed and  convey  her  share  to  Smt.  Shamima
Khanam, as a nominee of Shri Javed Akhtar and Shri Parvez Akhtar.

9.    Ultimately, Smt. Kanak Nahar, through her  husband  Shri  Ajit  Nahar,
sold her share to Smt. Shamima Khanam by sale deed dated  11th  July,  1985,
but  once  again,  Smt.  Shamima  Khanam  approached  the  High  Court   for
modification of the order dated 28th June,  1985  to  the  effect  that  she
should not be treated as a nominee of Shri  Javed  Akhtar  and  Shri  Parvez
Akhtar.

10.   The High Court, by an order dated 6th September,  1985,  modified  the
earlier order, without recording any reason for the same  and  by  observing
that Smt. Shamima Khanam was not a nominee of Shri  Javed  Akhtar  and  Shri
Parvez Akhtar.

11.   So far as the present litigation is concerned,  it  was  initiated  by
the present respondent nos.1 and 2 i.e. Shri Javed Akhtar  and  Shri  Parvez
Akhtar by filing Suit No.209A of 1986 for specific performance against  Smt.
Kanak Nahar praying that she be directed to effect  sale  of  her  share  in
their favour in pursuance of the order passed by the High Court  dated  16th
July, 1984 and the sale deed dated 11th July,  1985,  whereby  the  property
had been sold to Smt. Shamima Khanam be cancelled.  The said suit  had  been
decreed by an order dated 22nd September, 2005 and being  aggrieved  by  the
judgment and decree dated 22nd September, 2005, an appeal had been filed  by
the heirs of Smt. Shamima Khanam  in  whose  favour  Smt.  Kanak  Nahar  had
already conveyed her share.  The said  appeal  has  been  dismissed  by  the
impugned judgment.

12.   The case of the present  respondent  nos.1  and  2,  viz.  Shri  Javed
Akhtar and Shri Parvez Akhtar in the suit  filed  for  specific  performance
was that a fraud had been committed by Smt. Shamima Khanam and in  pursuance
of the said fraud, the share of Smt. Kanak Nahar  had  been  transferred  to
her.  Though permission was granted to Smt. Kanak Nahar to  sell  her  share
to Shri Javed Akhtar and Shri Parvez Akhtar or their nominee on  16th  July,
1984, share of Smt. Kanak Nahar was not sold to them or  their  nominee  and
they had never appointed Smt. Shamima Khanam to act  as  their  nominee  and
they were not bound by the order whereby Smt. Kanak Nahar  was  directed  to
sell her share to Smt. Shamima Khanam as they  were  not  given  any  notice
when the orders dated 28th June, 1985 and 9th September,  1985  were  passed
by the High Court.

13.   The learned counsel appearing for the appellants,  who  are  heirs  of
Smt. Shamima Khanam, in whose favour share of  Smt.  Kanak  Nahar  had  been
transferred, had submitted that Smt. Shamima Khanam was the  rightful  owner
of one-fourth share belonging to Smt. Kanak Nahar  as  Smt.  Shamima  Khanam
had purchased her share in her individual capacity and not as a  nominee  of
Shri  Javed  Akhtar  and  Shri  Parvez  Akhtar.   The  learned  counsel  had
submitted that upon perusal of the order  dated  16th  July,  1984,  whereby
permission was granted to Smt. Kanak Nahar to sell her share  in  favour  of
Shri Javed Akhtar and Shri Parvez Akhtar, it is  clear  that  there  was  no
direction to sell her share to Shri Javed Akhtar  and  Shri  Parvez  Akhtar,
but she was merely permitted to sell her share and there was  no  obligation
on the part of Smt. Kanak Nahar to sell her share to Shri Javed  Akhtar  and
Shri Parvez Akhtar as there  was  no  agreement  to  sell  the  property  in
question in their favour.  In absence of any such agreement to  sell,  there
could not have been any permission to sell her share to  Shri  Javed  Akhtar
and Shri Parvez Akhtar.   It had been specifically submitted by the  learned
counsel that Smt. Kanak Nahar had willingly sold her share to  Smt.  Shamima
Khanam and therefore, the judgment delivered by the High Court  of  Calcutta
on its original side in favour of Shri Javed Akhtar and Shri  Parvez  Akhtar
is bad in law.  According to the learned counsel, the Court  ought  to  have
seen that there was a valid conveyance  deed  executed  in  favour  of  Smt.
Shamima Khanam and as there was no agreement  to  sell  in  favour  of  Shri
Javed Akhtar and Shri Parvez Akhtar, there was  no  question  of  passing  a
decree for specific performance.

14.   It had been further submitted that one of the heirs  of  Smt.  Shamima
Khanam was a minor, who had not been represented properly  before  the  High
Court and therefore, without appointment of a guardian, the Court could  not
have passed any order against the minor who was one of the  legal  heirs  of
Smt. Shamima Khanam.

15.   The learned counsel had put much stress  on  his  submission  that  in
absence of any agreement to sell executed by Smt. Kanak Nahar, the suit  for
specific performance filed by Shri  Javed  Akhtar  and  Shri  Parvez  Akhtar
could not have been decreed, especially when the property  in  question  had
been validly transferred in favour of late  Smt.  Shamima  Khanam.   It  had
been, therefore, submitted by him that the  decree  passed  by  the  learned
Single Judge of the High Court was not just and proper and  deserved  to  be
set aside.

16.    On  the  other  hand,  it  had  been  submitted  on  behalf  of   the
respondents, especially for respondent nos.1 and 2 i.e.  Shri  Javed  Akhtar
and Shri Parvez Akhtar that by an order dated 16th July, 1984,  liberty  had
been granted to Smt. Kanak Nahar to sell her share to  them  and  the  Court
had also referred to Shri Javed Akhtar and Shri Parvez  Akhtar  as  proposed
purchasers in the said order and therefore, it cannot  be  said  that  there
was no understanding or agreement in relation to sale of the share  of  Smt.
Kanak Nahar in favour of Shri Javed Akhtar and Shri Parvez Akhtar.

17.   The learned counsel had strenuously  argued  that  a  fraud  had  been
committed by or on behalf  of  Smt.  Shamima  Khanam.    He  had  drawn  our
attention to the fact that when order dated 28th June, 1985  was  passed  by
the High Court directing Smt. Kanak  Nahar  to  execute  the  sale  deed  in
favour of Smt. Shamima Khanam in pursuance of an  application  submitted  by
Smt. Shamima Khanam, the High Court had not given any notice to  Shri  Javed
Akhtar and Shri Parvez Akhtar, in  whose  favour  a  final  order  had  been
passed on 16th July, 1984, whereby Smt. Kanak Nahar was  permitted  to  sell
her share to Shri Javed Akhtar and  Shri  Parvez  Akhtar.   He  had  further
submitted that Smt. Shamima Khanam had never been appointed as a nominee  of
Shri Javed Akhtar and Shri Parvez Akhtar and  the  order  dated  28th  June,
1985 had been passed in pursuance of a fraudulent behaviour of Smt.  Shamima
Khanam.  It had further been submitted that even the order dated 28th  June,
1985, had been modified without issuance of any notice to Shri Javed  Akhtar
and Shri Parvez Akhtar.  Thus, according to the  learned  counsel,  a  fraud
had been committed by or on behalf of Smt.  Shamima  Khanam,  who  had  been
represented by her heirs and the order  passed  in  pursuance  of  the  said
fraud as well the transfer effected by Smt. Kanak Nahar were bad in law  and
they were rightly set aside by the High Court by the impugned judgment.

18.   According  to  the  learned  counsel,  the  trial  Court  as  well  as
appellate Court have come to a conclusion that a fraud  had  been  committed
and commission of fraud being a  matter  of  fact,  this  Court  should  not
reverse the said finding or should not re-appreciate the  evidence  in  this
appeal, which is virtually in the  nature  of  a  second  appeal.   He  had,
therefore, submitted that the appeal deserved to be dismissed.

19.   Upon hearing the learned counsel for the parties, in our opinion,  the
High Court was justified in dismissing the appeal and affirming  the  decree
for specific performance.

20.   Upon perusal of the order dated 16th July, 1984  passed  by  the  High
Court, one can clearly visualise that there must had been  an  understanding
between Smt. Kanak Nahar on one hand and Shri Javed Akhtar and  Shri  Parvez
Akhtar on the other that one-fourth share of the property belonging to  Smt.
Kanak Nahar would be sold to Shri Javed Akhtar and Shri Parvez  Akhtar.   In
our opinion, it is not necessary to go into the  fact  whether  any  written
agreement to sell had been entered into between  Smt.  Kanak  Nahar  on  one
hand and Shri Javed Akhtar and Shri Parvez Akhtar on  the  other.  The  fact
remains that the High Court had permitted  Smt.  Kanak  Nahar  to  sell  her
share to the proposed buyers, viz. Shri Javed Akhtar and Shri Parvez  Akhtar
or to their nominee.  Had there not been any understanding among  these  two
parties, viz., the buyer and the seller, possibly the High Court  would  not
have referred to the names of Shri Javed Akhtar and Shri  Parvez  Akhtar  as
proposed buyers of the share of Smt. Kanak Nahar.

21.   It is also pertinent to note that it was not possible  to  divide  the
property by metes and bounds.  The entire problem  had  arisen  because  the
property was not divisible by metes and bounds  and  therefore,  a  Receiver
had to be appointed.   There is no dispute with  regard  to  the  fact  that
three-fourth share of the property in question had been  purchased  by  Shri
Javed Akhtar and Shri Parvez Akhtar in pursuance of the  permission  granted
by the High Court by an order dated 16th July, 1984.  If  the  property  was
not divisible, one can very well believe that owner  of  three-fourth  share
of an indivisible property would  be  ready  and  willing  to  purchase  the
remaining one-fourth share of the said property  and  normally  no  outsider
would ever think of purchasing one-fourth share of an indivisible part of  a
residential house.  These factors clearly denote that  there  must  be  some
understanding among Smt. Kanak Nahar and Shri Javed  Akhtar  &  Shri  Parvez
Akhtar in relation to purchase of the share of Smt. Kanak Nahar.

22.   There is nothing on record to show that  Shri  Javed  Akhtar  or  Shri
Parvez Akhtar had appointed  Smt.  Shamima  Khanam,  the  wife  of  Mohammad
Hafizullah – a lawyer and uncle of Shri Javed Akhtar and Shri Parvez  Akhtar
as their nominee.  There is nothing to show that any notice had been  issued
to Shri Javed Akhtar and Shri Parvez Akhtar before order  dated  28th  June,
1985 was passed.  By virtue of the said order, Smt.  Kanak  Nahar  had  been
directed to execute sale deed in favour of Smt. Shamima  Khanam.   Moreover,
no notice was issued to Shri Javed Akhtar and Shri Parvez  Akhtar  when  the
order dated 28th June, 1985 had been modified.   It  is  important  to  note
that if an order had been passed in favour of Shri  Javed  Akhtar  and  Shri
Parvez Akhtar on 16th July, 1984, there was no reason  for  the  High  Court
not to hear these two persons while passing a fresh  order,  whereby  buyers
had been changed from Shri Javed Akhtar  and  Shri  Parvez  Akhtar  to  Smt.
Shamima Khanam.

23.   The findings with regard to the fraud are findings  of  fact.    After
appreciation of the entire evidence, the trial Court as  well  as  appellate
Court have come to a conclusion that a fraud  had  been  committed,  whereby
one-fourth share of Smt. Kanak  Nahar  had  been  sold  in  favour  of  Smt.
Shamima Khanam.   We had gone through the evidence which had  been  produced
by the learned counsel appearing for  the  present  appellants.   Even  upon
perusal of the said evidence, we are  not  persuaded  to  believe  that  the
findings of fact arrived at by the Courts below are not correct.

24.   For the aforestated reasons, we are of  the  view  that  there  is  no
substance in this appeal and the orders passed by the Courts below are  just
and proper and therefore, we dismiss the appeal with no order as to costs.



                                        …………………….J
                                        (ANIL R. DAVE)


                                        ……………………..J
                                             (R.K. AGRAWAL)
NEW DELHI
JULY 02,  2014

Quashing of private complaint under Sections 34, 379, 411, 417, 418, 420, 467, 458 and 477 IPC. - stop the payment of cheques as those are stolen- but Bank Manger received the cheque without intimation - the complainant received cheque bounce notices - High court dismissed the petition under sec.482 - Apex court held that It is no doubt true that the Courts have to be very careful while exercising the power under Section 482 Cr.P.C. At the same time we should not allow a litigant to file vexatious complaints to otherwise settle their scores by setting the criminal law into motion, which is a pure abuse of process of law and it has to be interdicted at the threshold. A clear reading of the complaint does not make out any offence against the appellant/Branch Manager, much less the offences alleged under Sections 34, 379, 411, 417, 418, 420, 467, 458 and 477 I.P.C. We are of the view that even assuming that the Branch Manager has violated the instructions in the complaint in letter and spirit. It all amounts to negligence in discharging official work at the maximum it can be said that it is dereliction of duty.In view of our above discussion, we have come to an irresistible conclusion that continuation of the criminal proceedings against the appellant for commission of the alleged offence under Sections 34, 379, 411, 417, 418, 420, 467, 458 and 477 I.P.C. is a pure abuse of process of law and the complaint case deserves to be quashed in the interest of justice.We accordingly allow this appeal setting aside the impugned judgment of the High Court by quashing the criminal proceedings pending against the appellant in C.C. No. 2397 of 2012 under Sections 34, 379, 411, 418, 420, 467, 458 and 477 I.P.C. on the file of Additional Chief Judicial Magistrate, Ghaziabad, Uttar Pradesh.= RISHIPAL SINGH … APPELLANT VERSUS STATE OF U.P. & ANR. … RESPONDENTS = 2014 – July. Part – http://judis.nic.in/supremecourt/filename=41732

  Quashing of private complaint under Sections  34, 379, 411, 417, 418, 420, 467, 458  and  477  IPC. - stop the payment of cheques as those are stolen- but Bank Manger received the cheque without intimation - the complainant received cheque bounce notices -  High court dismissed the petition under sec.482 - Apex court held that  It is no doubt true that the Courts have  to  be  very  careful  while exercising the power under Section 482 Cr.P.C.  At the same time  we  should not allow a litigant to file vexatious complaints to otherwise settle  their scores by setting the criminal law into motion, which is  a  pure  abuse  of process of law and it has to be  interdicted  at  the  threshold.   A  clear reading of  the  complaint  does  not  make  out  any  offence  against  the appellant/Branch Manager, much less the offences alleged under Sections  34, 379, 411, 417, 418, 420, 467, 458 and 477 I.P.C.  We are of  the  view  that even assuming that the Branch Manager has violated the instructions  in  the complaint  in  letter  and  spirit.   It  all  amounts  to   negligence   in discharging official work  at  the  maximum  it  can  be  said  that  it  is dereliction of duty.In view of our above discussion,  we  have  come  to  an irresistible conclusion  that  continuation  of  the  criminal  proceedings  against  the appellant for commission of the alleged  offence  under  Sections  34,  379, 411, 417, 418, 420, 467, 458 and 477 I.P.C. is a pure abuse  of  process  of law and the complaint case  deserves  to  be  quashed  in  the  interest  of justice.We accordingly allow this appeal setting aside the  impugned  judgment of the High Court by quashing the criminal proceedings pending  against  the appellant in C.C. No. 2397 of 2012 under Sections 34, 379,  411,  418,  420, 467,  458  and  477  I.P.C.  on  the  file  of  Additional  Chief   Judicial Magistrate, Ghaziabad, Uttar Pradesh.=

The facts relevant for the disposal of this  appeal,  in  a  nutshell,
are that on 21st  March,  2005,  respondent  No.2  herein  filed  a  private
complaint (Annexure P/2) in the Court  of  Judicial  Magistrate,  Ghaziabad,
Uttar Pradesh under Section 156(3) Cr.P.C. against the appellant herein  and
three other accused who are not parties before  us,  invoking  Sections  34,
379, 411, 417, 418, 420, 467, 458  and  477  IPC.   =

The main allegation levelled against the appellant  was  that  when  a
written information had  already  been  given  on  17th  May,  2004  to  the
appellant who was the Branch Manager of the Bank  not  to  honour  the  lost
cheques and cancel them, he should have performed  his  duties  with  utmost
responsibility and when the stolen/lost  cheque  was  presented,  he  should
have given the information of its presentation to the police as well  as  to
the complainant.  On the contrary, the appellant  neither  handed  over  the
person who presented the cheque, to the police, nor brought  to  the  notice
of  the  complainant  about  its  presentation.   It  is  because   of   the
involvement of the appellant in the conspiracy he  has  not  discharged  his
duties  as  Branch  Manager  with  responsibility  and  acted  against   the
instructions in  the  letter  dated  17th  May,  2004  only  to  harass  the
complainant and his family financially and  mentally.   Thus  the  appellant
played a role in the conspiracy, and therefore, the complainant  lodged  the
complaint under the aforesaid sections of IPC against the appellant as  well
as other accused.=

  The  facts  of  the  case  which  are  not  in  dispute,  for  better
appreciation  of  the  facts  and  arguments  advanced  on  behalf  of   the
appellant, it is necessary for us to have a  thorough  look  at  the  letter
dated  17th  May,  2004  addressed  to  the  appellant/Branch   Manager   by
respondent No.2.

“Sir,

It is requested that the Applicant has issued  Cheque  Book  in  which  from
Cheque No. 083691 to 083700 were 10 cheques in  Account  No.  1132,  out  of
which, payment up to Cheque No. 083696 has been received and on rest of  the
cheques are signature of the applicant/account  holder.   The  above  cheque
book and other necessary payers were in my  hand  bag  and  I  by  Bus  from
Pikhuwa was coming to Ghaziabad then in the bust itself by mistake that  bag
was  left  and  even  on  making  to  much  search  could  not  found.   Its
information immediately I have given at the police station, Sihani Gate.

Therefore, it  is  requested  that  you  may  treat  the  above  cheques  as
cancelled and on that may not kindly make payment to any person.

It will be very kind of you”.

       A  reading  of  the  above  letter  makes  it  very  clear  that  the
complainant has instructed the appellant/Branch Manager not to pass  cheques
bearing Nos. 083697 to 083700, the four cheques which were  already  signed.
There  is  no  dispute  that  after  submitting  the  above  letter  to  the
appellant, when Cheque No. 083697 was presented in the Bank on 2ndf  August,
2004, the same was not cleared by the appellant/Branch Manager  in  view  of
the letter of the complainant.  Subsequently, the appellant was  transferred
from that Branch to Dhaulana Branch on 21st  August,  2004,  there  was  any
instruction to the Bank to inform the account  holder  or  police  when  the
cheque is presented.  It appears from the letter that  only  a  request  was
made to the Bank that the said four cheques shall not be honoured.
15.   If we look at the complaint and letter addressed  by  the  complainant
to the Branch Manager, the entire grievance of the complaint appears  to  be
that basing  on  the  written  information  which  had  been  given  to  the
appellant on 17th May, 2004,  when  the  stolen  cheque  was  presented,  he
should have given a complaint to the  police.   As  the  appellant  has  not
chosen to give the complaint to the police,  according  to  the  complainant
the other accused hatched a conspiracy with the appellant –  Branch  Manager
and accordingly cheated him.
16.   It is no doubt true that the Courts have  to  be  very  careful  while
exercising the power under Section 482 Cr.P.C.  At the same time  we  should
not allow a litigant to file vexatious complaints to otherwise settle  their
scores by setting the criminal law into motion, which is  a  pure  abuse  of
process of law and it has to be  interdicted  at  the  threshold.   A  clear
reading of  the  complaint  does  not  make  out  any  offence  against  the
appellant/Branch Manager, much less the offences alleged under Sections  34,
379, 411, 417, 418, 420, 467, 458 and 477 I.P.C.  We are of  the  view  that
even assuming that the Branch Manager has violated the instructions  in  the
complaint  in  letter  and  spirit.   It  all  amounts  to   negligence   in
discharging official work  at  the  maximum  it  can  be  said  that  it  is
dereliction of duty.
17.   In view of our above discussion,  we  have  come  to  an  irresistible
conclusion  that  continuation  of  the  criminal  proceedings  against  the
appellant for commission of the alleged  offence  under  Sections  34,  379,
411, 417, 418, 420, 467, 458 and 477 I.P.C. is a pure abuse  of  process  of
law and the complaint case  deserves  to  be  quashed  in  the  interest  of
justice.
18.   We accordingly allow this appeal setting aside the  impugned  judgment
of the High Court by quashing the criminal proceedings pending  against  the
appellant in C.C. No. 2397 of 2012 under Sections 34, 379,  411,  418,  420,
467,  458  and  477  I.P.C.  on  the  file  of  Additional  Chief   Judicial
Magistrate, Ghaziabad, Uttar Pradesh.

 2014 – July. Part – http://judis.nic.in/supremecourt/filename=41732

                                                              REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 1300 OF 2014
                               ARISING OUT OF
                SPECIAL LEAVE PETITION (CRL) NO. 2447 OF 2013


RISHIPAL SINGH                          …    APPELLANT

VERSUS

STATE OF U.P. & ANR.                    …    RESPONDENTS


                                  JUDGMENT


N.V. RAMANA. J.



      Leave granted.
2.    This appeal arises out of order dated 6th November, 2012 of  the  High
Court of Judicature at Allahabad refusing the prayer of  the  appellant  for
quashing the proceedings in Complaint Case No. 2397 of 2012  under  Sections
34, 379, 411, 417, 418, 420, 457, 458 and 477 IPC pending  on  the  file  of
Additional Chief Judicial Magistrate, Ghaziabad.
3.    The facts relevant for the disposal of this  appeal,  in  a  nutshell,
are that on 21st  March,  2005,  respondent  No.2  herein  filed  a  private
complaint (Annexure P/2) in the Court  of  Judicial  Magistrate,  Ghaziabad,
Uttar Pradesh under Section 156(3) Cr.P.C. against the appellant herein  and
three other accused who are not parties before  us,  invoking  Sections  34,
379, 411, 417, 418, 420, 467, 458  and  477  IPC.   According  to  the  said
complaint, the complainant was holding  a  Bank  Account  in  the  Ghaziabad
District Co-operative Bank, Maliwada, Ghaziabad where the appellant was  the
Branch Manager.  It was alleged in the complaint that  taking  advantage  of
the  innocence  of  the  complainant   and   his   brother,   the   accused,
mischievously obtained their  signatures  on  blank  cheques  and  committed
theft of their hand bag in which the signed  cheque  book  was  kept.   When
they came to know that their bag containing signed cheques and other  papers
was missing, not knowing the misdeed of  the  accused,  a  search  has  been
undertaken for the lost bag containing signed  cheques  and  also  lodged  a
written report on 17th May, 2004 at  Sihani  Gate  Police  Station  to  that
effect.  The Bank was also informed in writing  on  17th  May,  2004  itself
that duly signed cheque book of Account No. 1132 has  been  lost,  hence  no
payment on the lost cheques be made to any person and all those cheques  may
be cancelled (Annexure P/1).  It was further stated by the complainant  that
when he received a notice dated 6th October, 2004 under Section 138  of  the
Negotiable Instruments Act from Neelam Rani (co-accused,  not  party  before
us)  stating  that  Cheque  No.083697  (one  of  the   lose   cheques)   for
Rs.5,00,067/- as if issued by him towards the purchase of Kachi  bricks  and
coal from “Neelam Brick  Field”,  then  he  realized  that  there  was  some
planned conspiracy and the cheque book was not actually lost but was  stolen
and being misused by the accused for drawing various amounts from  his  bank
account.  In the said complaint, the  complainant  –  respondent  No.2,  has
totally denied any such transaction with “Neelam Brick  Field”  and  alleged
that the accused cooked up that transaction, hatched a conspiracy  with  the
bank employees for cheating him, and accordingly  all  the  amounts  of  the
complainant and his family have been “looted”.
4.    The main allegation levelled against the appellant  was  that  when  a
written information had  already  been  given  on  17th  May,  2004  to  the
appellant who was the Branch Manager of the Bank  not  to  honour  the  lost
cheques and cancel them, he should have performed  his  duties  with  utmost
responsibility and when the stolen/lost  cheque  was  presented,  he  should
have given the information of its presentation to the police as well  as  to
the complainant.  On the contrary, the appellant  neither  handed  over  the
person who presented the cheque, to the police, nor brought  to  the  notice
of  the  complainant  about  its  presentation.   It  is  because   of   the
involvement of the appellant in the conspiracy he  has  not  discharged  his
duties  as  Branch  Manager  with  responsibility  and  acted  against   the
instructions in  the  letter  dated  17th  May,  2004  only  to  harass  the
complainant and his family financially and  mentally.   Thus  the  appellant
played a role in the conspiracy, and therefore, the complainant  lodged  the
complaint under the aforesaid sections of IPC against the appellant as  well
as other accused.
5.    After registering the Complaint Case, the learned Magistrate  recorded
statements under Sections 200 and 202 Cr.P.C.  and  issued  summons  against
the accused under Section 204 Cr.P.C.  Two other co-accused  challenged  the
summoning  order  before  the  High  Court  in  a   Criminal   Miscellaneous
Application No. 6334 of  2006  and  the  Allahabad  High  Court  has  stayed
further proceedings in the Complaint Case.   Subsequently,  the  High  Court
dismissed the Criminal Miscellaneous Application,  and  hence,  non-bailable
warrant has been issued against the appellant on 3rd October, 2012.
6.    Then the appellant moved the High Court under Section 482  Cr.P.C.  to
quash the proceedings against him.  It was the case of  the  appellant  that
he came to know about the criminal  complaint  only  when  the  non-bailable
warrant has been issued against him because  from  August  2004  to  January
2007, during which period the proceedings in  the  criminal  complaint  were
going on, he was posted at Dhaulana  Branch,  therefore,  the  summons  were
never served upon him.  But, by the impugned order dated 6th November,  2012
the High Court  refused  to  quash  the  criminal  proceedings  against  the
appellant.
7.    Before us, the main contention of the learned senior counsel  for  the
appellant is that the appellant has nothing to do with the  alleged  offence
and his name was unnecessarily dragged into the  criminal  complaint.   When
Cheque No. 083697 was presented in the Bank on 2nd August, 2004, it was  not
cleared by the Bank  in  view  of  the  written  instruction  given  by  the
complainant and no loss was caused to the complainant at the  hands  of  the
appellant.  Afterwards, the appellant was transferred from  Maliwara  Branch
to Dhaulana Branch on 21st August, 2004 and  he  was  again  transferred  to
Maliwara Branch in January 2007 where he  remained  till  August  2011.   He
further contended that the complainant in his letter dated  17th  May,  2004
(Annexure P/1) addressed to the appellant has nowhere asked  him  to  inform
to the police or to give communication to him when the cheque is  presented.
 The entire reading of the said letter does not disclose  any  case  against
the appellant and his name was included into the criminal complaint only  to
malign and defame him because the  complainant  has  received  some  notices
under Section 138 of the Negotiable Instruments Act from the other  accused.
 Only  to  create  a  defence  against  those  cases  under  the  Negotiable
Instruments Act, the complaint has been filed by the complainant  with  mala
fide  intention.   Hence,  the  complaint  filed  by  respondent   No.2   is
misconceived and it does not attract any of  the  offences  alleged  against
the appellant as it was filed only with vexatious and oblique  motive.   But
the High Court, without going into the merits and facts of the case,  merely
relying on the provisions of Section 245 Cr.P.C. directed the  appellant  to
file application for his discharge before the trial  Court.   This  approach
of the High Court is erroneous and contrary to the law  laid  down  by  this
Court.  The High  Court  ought  to  have  allowed  the  application  of  the
appellant under Section 482 Cr.P.C. as the complaint does  not  attract  the
ingredients of Sections 34, 379, 411, 417, 418, 467, 468, 471 and  477  IPC.
He, therefore, prayed to set aside the impugned order  passed  by  the  High
Court and quash the proceedings in the Complaint Case qua the appellant.
8.     On   the   other   hand,   the   learned   counsel   for   respondent
No.2/complainant while  supporting  the  order  passed  by  the  High  Court
submitted   that   the   appellant   has   not   properly   discharged   his
responsibilities as Branch Manager and acted  in  a  casual  manner  due  to
which respondent No.2 had to suffer financial loss as well as put to lot  of
hardship.  Particularly, he contended that in the light of the letter  dated
17th May, 2004 when a lost/stolen cheque was presented for clearance, it  is
expected from a responsible officer of the Bank that instead of passing  the
cheque  for  payment,  he  should  inform  the  account  holder  about   its
presentation and also to bring to  the  notice  of  police  such  mala  fide
presentation of cheque by the  presenter,  but  the  appellant  has  totally
failed in performing his duties.  So, therefore is no reason for this  Court
to interfere with the order of the High Court.
9.    Having heard the learned counsel for the parties  and  after  perusing
the entire material available on record, including the  complaint,  now  the
issue for consideration before us is whether in  the  light  of  the  letter
dated 17th May, 2004 (Annexure P/1), the appellant has made out any case  to
quash the proceedings in Complaint Case No.  2397/2002  under  Sections  34,
379, 411, 417, 418, 467, 468, 471 and 477 IPC on the file of the  Additional
Chief Judicial Magistrate, Ghaziabad.
10.   Before we deal with the  respective  contentions  advanced  on  either
side, we deem it appropriate to have thorough look at Section  482  Cr.P.C.,
which reads:
            “Nothing in this Code shall be deemed to  limit  or  affect  the
inherent powers of the High Court to make such orders as  may  be  necessary
to give effect to any orders of this Code or to prevent abuse of process  of
any Court or otherwise to secure the ends of justice”.

      A bare perusal of Section 482 Cr.P.C. makes it crystal clear that  the
object of exercise of power under  this  section  is  to  prevent  abuse  of
process of Court and to secure ends of justice.  There are no hard and  fast
rules  that  can  be  laid  down  for  the  exercise  of  the  extraordinary
jurisdiction, but exercising the same is an exception, but  not  a  rule  of
law.  It is no doubt true that there can be no straight jacket  formula  nor
defined parameters to enable a Court to  invoke  or  exercise  its  inherent
powers.  It will always depend upon the  facts  and  circumstances  of  each
case.  The Courts have to be very circumspect while exercising  jurisdiction
under Section 482 Cr.P.C.
11.   This Court in Medchl Chemicals & Pharma (P) Ltd. v Biological  E.  Ltd
and Others 2000 (3) SCC 269, has discussed at length  about  the  scope  and
ambit while exercising power under Section 482 Cr.P.C. and how cautious  and
careful the approach of the Courts should be.  We deem  it  apt  to  extract
the relevant portion from that judgement, which reads:
            “Exercise of jurisdiction under inherent power as  envisaged  in
Section 482 of the Code to have the complaint or the  charge  sheet  quashed
is an exception rather than rule and the case for quashing  at  the  initial
stage must have to be treated as rarest of rare so as  not  to  scuttle  the
prosecution with the lodgement of First Information  Report.   The  ball  is
set to  roll  and  thenceforth  the  law  takes  it’s  own  course  and  the
investigation ensures  in  accordance  with  the  provisions  of  law.   The
jurisdiction as such  is  rather  limited  and  restricted  and  it’s  undue
expansion is neither practicable nor warranted.  In the event, however,  the
Court on a  perusal  of  the  complaint  comes  to  a  conclusion  that  the
allegations levelled in the complaint or charge sheet  on  the  fact  of  it
does not constitute or disclose any offence alleged, there ought not  to  be
any hesitation to rise up to the expectation of the  people  and  deal  with
the situations as is required under the  law.   Frustrated  litigants  ought
not to be indulged to give vent to  their  vindictiveness  through  a  legal
process and such an investigation ought not to be allowed  to  be  continued
since the same is opposed to the concept of justice, which is paramount”.

12.   This Court in plethora of judgments has laid down the guidelines  with
regard to exercise of jurisdiction by the Courts under Section  482  Cr.P.C.
In State of Haryana v. Bhajan Lal 1992  Supp(1)  SCC  335,  this  Court  has
listed the categories of cases when the  power  under  Section  482  can  be
exercised by the Court.  These principles or the guidelines were  reiterated
by this Court in  (1)  Central  Bureau  of  Investigation  v.  Duncans  Agro
Industries Ltd. 1996 (5) SCC 592; (2) Rajesh Bajaj v.  State  NCT  of  Delhi
1999 (3) SCC  259  and;  (3)  Zandu  Pharmaceuticals  Works  Ltd.  v.  Mohd.
Sharaful Haque & Anr (2005) 1 SCC 122.  This Court in Zandu  Pharmaceuticals
Ltd., observed that:
            “The power  under  Section  482  of  the  Code  should  be  used
sparingly and with to prevent abuse of process of Court, but not  to  stifle
legitimate prosecution.  There can be no two opinions on  this,  but  if  it
appears to the trained judicial mind  that  continuation  of  a  prosecution
would lead to abuse of process of Court, the power under Section 482 of  the
Code must be exercised and  proceedings  must  be  quashed”.   Also  see  Om
Prakash and Ors. V. State of Jharkhand 3012 (12) SCC 72.

What emerges from the above judgments is that  when  a  prosecution  at  the
initial stage is asked to be quashed, the tests to be applied by  the  Court
is as to whether the uncontroverted allegations as  made  in  the  complaint
prima facie establish  the  case.   The  Courts  have  to  see  whether  the
continuation of the complaint  amounts  to  abuse  of  process  of  law  and
whether continuation of the criminal proceeding results  in  miscarriage  of
justice or when  the  Court  comes  to  a  conclusion  that  quashing  these
proceedings would otherwise serve the ends of justice, then  the  Court  can
exercise the power under Section 482 Cr.P.C.   While  exercising  the  power
under the provision, the Courts have to  only  look  at  the  uncontroverted
allegation in the complaint whether prima  facie  discloses  an  offence  or
not, but it should not convert itself to that of a  trial  Court  and  dwell
into the disputed questions of fact.
13.   In the backdrop of the legal position,  well  settled  by  this  Court
through catena of judgements, we would like to deal with the  facts  of  the
present case which lead to filing  of  the  present  complaint  against  the
appellant under Sections 34, 379, 411, 417,  418,  420,  467,  458  and  477
I.P.C. on the file of the Additional Chief Judicial Magistrate, Ghaziabad.
14.    The  facts  of  the  case  which  are  not  in  dispute,  for  better
appreciation  of  the  facts  and  arguments  advanced  on  behalf  of   the
appellant, it is necessary for us to have a  thorough  look  at  the  letter
dated  17th  May,  2004  addressed  to  the  appellant/Branch   Manager   by
respondent No.2.

“Sir,

It is requested that the Applicant has issued  Cheque  Book  in  which  from
Cheque No. 083691 to 083700 were 10 cheques in  Account  No.  1132,  out  of
which, payment up to Cheque No. 083696 has been received and on rest of  the
cheques are signature of the applicant/account  holder.   The  above  cheque
book and other necessary payers were in my  hand  bag  and  I  by  Bus  from
Pikhuwa was coming to Ghaziabad then in the bust itself by mistake that  bag
was  left  and  even  on  making  to  much  search  could  not  found.   Its
information immediately I have given at the police station, Sihani Gate.

Therefore, it  is  requested  that  you  may  treat  the  above  cheques  as
cancelled and on that may not kindly make payment to any person.

It will be very kind of you”.

       A  reading  of  the  above  letter  makes  it  very  clear  that  the
complainant has instructed the appellant/Branch Manager not to pass  cheques
bearing Nos. 083697 to 083700, the four cheques which were  already  signed.
There  is  no  dispute  that  after  submitting  the  above  letter  to  the
appellant, when Cheque No. 083697 was presented in the Bank on 2ndf  August,
2004, the same was not cleared by the appellant/Branch Manager  in  view  of
the letter of the complainant.  Subsequently, the appellant was  transferred
from that Branch to Dhaulana Branch on 21st  August,  2004,  there  was  any
instruction to the Bank to inform the account  holder  or  police  when  the
cheque is presented.  It appears from the letter that  only  a  request  was
made to the Bank that the said four cheques shall not be honoured.
15.   If we look at the complaint and letter addressed  by  the  complainant
to the Branch Manager, the entire grievance of the complaint appears  to  be
that basing  on  the  written  information  which  had  been  given  to  the
appellant on 17th May, 2004,  when  the  stolen  cheque  was  presented,  he
should have given a complaint to the  police.   As  the  appellant  has  not
chosen to give the complaint to the police,  according  to  the  complainant
the other accused hatched a conspiracy with the appellant –  Branch  Manager
and accordingly cheated him.
16.   It is no doubt true that the Courts have  to  be  very  careful  while
exercising the power under Section 482 Cr.P.C.  At the same time  we  should
not allow a litigant to file vexatious complaints to otherwise settle  their
scores by setting the criminal law into motion, which is  a  pure  abuse  of
process of law and it has to be  interdicted  at  the  threshold.   A  clear
reading of  the  complaint  does  not  make  out  any  offence  against  the
appellant/Branch Manager, much less the offences alleged under Sections  34,
379, 411, 417, 418, 420, 467, 458 and 477 I.P.C.  We are of  the  view  that
even assuming that the Branch Manager has violated the instructions  in  the
complaint  in  letter  and  spirit.   It  all  amounts  to   negligence   in
discharging official work  at  the  maximum  it  can  be  said  that  it  is
dereliction of duty.
17.   In view of our above discussion,  we  have  come  to  an  irresistible
conclusion  that  continuation  of  the  criminal  proceedings  against  the
appellant for commission of the alleged  offence  under  Sections  34,  379,
411, 417, 418, 420, 467, 458 and 477 I.P.C. is a pure abuse  of  process  of
law and the complaint case  deserves  to  be  quashed  in  the  interest  of
justice.
18.   We accordingly allow this appeal setting aside the  impugned  judgment
of the High Court by quashing the criminal proceedings pending  against  the
appellant in C.C. No. 2397 of 2012 under Sections 34, 379,  411,  418,  420,
467,  458  and  477  I.P.C.  on  the  file  of  Additional  Chief   Judicial
Magistrate, Ghaziabad, Uttar Pradesh.

                                                           ….……………………………….J.
                                                     (RANJANA PRAKASH DESAI)



                                                         .....………………………………J.
                                   (N.V. RAMANA)
NEW DELHI
JULY  2 , 2014

Section 4 of the Mamlatdar's Court Act - & Civil Suit - blocking of traditional easementary access - alleged that on compromise alternative access was given - since it can not be ascertained in writ petition, the High court gave liberty to approach the Mamlatdar for ascertain of alternative access and for completion certificate - it was misunderstood as if the High court remanded to reopen the lis agreed to be withdrawn -Apex court held that High court not given any directions to reopen the lis and gave direction to give completion certificate and we set aside the judgment and order dated 18th November, 2013 with liberty to respondent to move before the Court of competent jurisdiction, if completion certificate has not been issued by the Village Panchayat, Calagute in terms of the order passed in Writ Petition No.422/2008 or if the respondent did not satisfy with such completion certificate.= ANTONETTO JOHN D’SOUZA @ JOHNNY D'SOUZA … APPELLANT VERUS MRS. ALDILA BRAGANZA … RESPONDENT = 2014 – July. Part – http://judis.nic.in/supremecourt/filename=41728

Section  4  of  the  Mamlatdar's  Court  Act - & Civil Suit - blocking of traditional easementary access -  alleged that on compromise alternative access was given - since it can not be ascertained in writ petition, the High court gave liberty to approach the Mamlatdar for ascertain of alternative access  and for  completion certificate - it was misunderstood as if the High court remanded to reopen the lis agreed to be withdrawn -Apex court held that High court not given any directions to reopen the lis and gave direction to give completion certificate and we set aside the judgment  and  order  dated 18th November, 2013 with liberty to respondent to move before the  Court  of competent jurisdiction, if completion certificate has  not  been  issued  by the Village Panchayat, Calagute  in  terms  of  the  order  passed  in  Writ Petition No.422/2008  or  if  the  respondent  did  not  satisfy  with  such completion certificate.=

 The respondent alleged the blocking  of  her  traditional  easementary
access by the  appellant  by  constructing  compound  walls.
Initially,  an
application under Section  4  of  the  Mamlatdar's  Court  Act  (hereinafter
referred to as the “Act”) was filed by the respondent before  the  Mamlatdar
with regard to the said obstruction.  which was dismissed for default and later restored =
The appellant filed a Revision Application before  the  Collector
against the order of restoration.
In the said  Revision  Application  an  ex
parte order was passed by the Additional Collector-I, Panaji on  11th  July,
2008 directing the Mamlatdar,  Bardez  to  open  the  gate  and  remove  the
obstacles like the compound walls between Survey  Nos.163/1  and  163/2  and
Survey Nos.164/1 and 163/10, 163/1,163/2 and 163/4, to make openings  enough
for free movement of an ambulance to  enable  the  respondent  to  take  her
father-in-law for medical treatment. =
The appellant challenged  the  said  order  by  filing  Writ  Petition
No.422/2008 before the High  Court  and  obtained  an  order  of  stay.
The
respondent and her father-in-law filed  an  appeal  from  Order  No.59/2008,
against the order dated 13th February, 2008 passed by  the  Civil  Court  at
Mapusa, whereby the  application  for  temporary  and  mandatory  injunction
filed by the respondent and her father-in-law in Civil Suit No.134/07/B  was
dismissed. =
The said writ petition and appeal from order came to be  disposed
of by an order dated 4th May, 2009 which is as under:
“Mr. Usgaonkar, learned Senior Counsel applies for withdrawal of the  Appeal
from Order No.59/2008 as the appellants have  been  granted  a  satisfactory
alternate access by the Panchayat at Calangute.
The owner  of  the  property
through which the access is now granted has also given no  objetion  to  the
grant  of  access  to  the  appellants  as  well  as  the   other   members.
Consequently, the petitioner's relief for setting aside the  orders  of  the
Mamlatdar dated 7.3.2008 and  11.7.2008  is  required  to  be  granted.
The
appellants in Appeal from Order No.59/2008 concedes  that  the  lis  in  the
Mamlatdar Court's  no  longer  remains.
Mr.  Usgaonkar  on  behalf  of  the
appellants undertakes to withdraw the application in the Mamlatdar's  Court.
However, the office of the Village  Panchayat,  Calangute  shall  issue  the
completion certificate requested  by  the  appellants  which  could  not  be
issued due to the election. The completion certificate shall  be  issued  on
or  before  31.05.2009.
The  Writ  Petition  No.422/2008  is  disposed   of
accordingly and Appeal from Order No.59/2008 is allowed to be withdrawn.”=

filed a re open petition before the Mamlatdar - was dismissed and revision was also dismissed - writ filed -

After  hearing  the
parties by the impugned judgment, the High Court  while  setting  aside  the
order passed by the  Mamlatdar  and  the  Revisional  Authority  passed  the
following order:
“25. In the result, the petition partly succeeds.

(a)   The impugned orders  dated  28/03/2013  passed  by  the  Mamlatdar  of
Bardez  and 20/09/2013 passed by the Additional Collector-  II,  North  Goa,
are quashed and set aside.

(b)   The matter is remanded to the respondent No.2 to  decide  whether  for
reasons stated in the  application  and  in  accordance  with  law,  he  has
jurisdiction/powers   to    re-open    the    said    proceedings    bearing
No.MAM/BAR/MCA/4/2007 and if he comes to the conclusion  that  he  has  such
powers, then to adjudicate on the grievance of the  petitioner  with  regard
to the altenate access.

(c) If the respondent No.2 finds that the said  grievance of the  petitioner
is true and on account of the same and for other  reasons,  he  can  re-open
the proceedings,  then  he  shall  proceed  to  dispose  of  the  said  case
No.MAM/BAR /MCA/4/2007, in accordance with law, expeditiously.

(d)   The contentions of the parties are kept open  for  being  made  before
the respondent No.2.

(e)   Parties to appear before the respondent No.2  on  09/12/2013  at  3.00
p.m.”

After  hearing  the
parties by the impugned judgment, the High Court  while  setting  aside  the
order passed by the  Mamlatdar  and  the  Revisional  Authority  passed  the
following order:
“25. In the result, the petition partly succeeds.

(a)   The impugned orders  dated  28/03/2013  passed  by  the  Mamlatdar  of
Bardez  and 20/09/2013 passed by the Additional Collector-  II,  North  Goa,
are quashed and set aside.

(b)   The matter is remanded to the respondent No.2 to  decide  whether  for
reasons stated in the  application  and  in  accordance  with  law,  he  has
jurisdiction/powers   to    re-open    the    said    proceedings    bearing
No.MAM/BAR/MCA/4/2007 and if he comes to the conclusion  that  he  has  such
powers, then to adjudicate on the grievance of the  petitioner  with  regard
to the altenate access.

(c) If the respondent No.2 finds that the said  grievance of the  petitioner
is true and on account of the same and for other  reasons,  he  can  re-open
the proceedings,  then  he  shall  proceed  to  dispose  of  the  said  case
No.MAM/BAR /MCA/4/2007, in accordance with law, expeditiously.

(d)   The contentions of the parties are kept open  for  being  made  before
the respondent No.2.

(e)   Parties to appear before the respondent No.2  on  09/12/2013  at  3.00
p.m.”

 No direction was issued by the High Court to reopen  the  matter.  The
High Court has also not directed  the  Mamlatdar,  Bardez  to  consider  the
question  as  to  whether  he  has   jurisdiction/powers   to   reopen   the
proceedings. Such being the position, it was not open for the High Court  in
a subsequent writ petition  to  pass  any  order  enlarging  the  order  and
direction  issued  by  the  High  Court  in  the   earlier   Writ   Petition
No.422/2008.  At  best,  the  High  Court  could  have  asked  the   Village
Panchayat, Calagute to issue completion certificate, if  the  same  had  not
been issued pursuant to the direction of the High Court dated 4th May,  2009
in Writ Petition No.422/2008. It is only after issuance  of  the  completion
certificate, the respondent could have  decided  whether  she  is  satisfied
with such completion certificate or not. The respondent having accepted  and
given undertaking to withdraw the application  before  the  Mamlatdar  Court
there was no question of remitting the matter to the Mamlatdar.
12.   For the reason aforesaid, we set aside the judgment  and  order  dated
18th November, 2013 with liberty to respondent to move before the  Court  of
competent jurisdiction, if completion certificate has  not  been  issued  by
the Village Panchayat, Calagute  in  terms  of  the  order  passed  in  Writ
Petition No.422/2008  or  if  the  respondent  did  not  satisfy  with  such
completion certificate.
13.   The appeal is allowed with the aforesaid observations. No costs.

2014 – July. Part – http://judis.nic.in/supremecourt/filename=41728

                                                            REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                           CIVIL APPELLATE JURISDICTION

                          CIVIL APPEAL NO.4995 OF 2014
                  (ARISING OUT OF SLP(C) NO.36661 OF 2013)

ANTONETTO JOHN D’SOUZA @ JOHNNY
D'SOUZA                                                   … APPELLANT

                                    VERUS

MRS. ALDILA BRAGANZA                               … RESPONDENT

                               J U D G M E N T


SUDHANSU JYOTI MUKHOPADHAYA, J.

      This appeal is directed against the  judgement  dated  18th  November,
2013 passed by the High Court of Bombay at Goa in Writ  Petition  No.622  of
2013. By the impugned judgment, the High Court quashed the order dated  28th
March, 2013 passed by the Mamlatdar, Bardez and order dated 20th  September,
2013 passed by the Additional Collector-II,  North  Goad  and  remitted  the
matter to Mamlatdar, Bardez to decide whether he has jurisdiction/powers  to
re-open the proceedings in question and to pass appropriate orders.
2.    The factual matrix of the case is as follows:
      The respondent alleged the blocking  of  her  traditional  easementary
access by the  appellant  by  constructing  compound  walls.  Initially,  an
application under Section  4  of  the  Mamlatdar's  Court  Act  (hereinafter
referred to as the “Act”) was filed by the respondent before  the  Mamlatdar
with regard to the said obstruction. The application came  to  be  dismissed
for default by order dated 7th January, 2008 and subsequently, the same  was
restored.  The appellant filed a Revision Application before  the  Collector
against the order of restoration. In the said  Revision  Application  an  ex
parte order was passed by the Additional Collector-I, Panaji on  11th  July,
2008 directing the Mamlatdar,  Bardez  to  open  the  gate  and  remove  the
obstacles like the compound walls between Survey  Nos.163/1  and  163/2  and
Survey Nos.164/1 and 163/10, 163/1,163/2 and 163/4, to make openings  enough
for free movement of an ambulance to  enable  the  respondent  to  take  her
father-in-law for medical treatment.
3.    The appellant challenged  the  said  order  by  filing  Writ  Petition
No.422/2008 before the High  Court  and  obtained  an  order  of  stay.  The
respondent and her father-in-law filed  an  appeal  from  Order  No.59/2008,
against the order dated 13th February, 2008 passed by  the  Civil  Court  at
Mapusa, whereby the  application  for  temporary  and  mandatory  injunction
filed by the respondent and her father-in-law in Civil Suit No.134/07/B  was
dismissed. The said writ petition and appeal from order came to be  disposed
of by an order dated 4th May, 2009 which is as under:
“Mr. Usgaonkar, learned Senior Counsel applies for withdrawal of the  Appeal
from Order No.59/2008 as the appellants have  been  granted  a  satisfactory
alternate access by the Panchayat at Calangute. The owner  of  the  property
through which the access is now granted has also given no  objetion  to  the
grant  of  access  to  the  appellants  as  well  as  the   other   members.
Consequently, the petitioner's relief for setting aside the  orders  of  the
Mamlatdar dated 7.3.2008 and  11.7.2008  is  required  to  be  granted.  The
appellants in Appeal from Order No.59/2008 concedes  that  the  lis  in  the
Mamlatdar Court's  no  longer  remains.  Mr.  Usgaonkar  on  behalf  of  the
appellants undertakes to withdraw the application in the Mamlatdar's  Court.
However, the office of the Village  Panchayat,  Calangute  shall  issue  the
completion certificate requested  by  the  appellants  which  could  not  be
issued due to the election. The completion certificate shall  be  issued  on
or  before  31.05.2009.  The  Writ  Petition  No.422/2008  is  disposed   of
accordingly and Appeal from Order No.59/2008 is allowed to be withdrawn.”

4.    The respondent,  thereafter,  filed  Miscellaneous  Civil  Application
No.348/2011 in the said writ petition for recall  of  the  order  dated  4th
May, 2009 passed in the writ petition, inter alia, on the ground that  there
was  a  misrepresentation  before  the  Court  that  there  was  a  suitable
alternate access available to the respondent. By  order  dated  14th  March,
2012, the High Court observed that according to the learned  Senior  Counsel
for respondent No.1 (appellant  herein)  the  access  having  width  of  1.5
metres is found at the site, but the said contention  was  disputed  by  the
respondent. The High Court to verify the situation  at  loco,  directed  the
Surveyor of the office of the  Mamlatdar,  Bardez  to  carry  out  the  site
inspection and ascertain whether the said access of 1.5 metres  as  depicted
in the plan produced on record was available on the site. As the said  order
was not complied with, by another order dated 18th April,  2012,  passed  in
M.C.A. No.348/2011, the High Court directed  Mamlatdar,  Bardez  to  inspect
and verify the width of alternate access provided to the respondent  by  the
Village Panchayat of Calangute. The Surveyor attached to the office  of  the
Mamlatdar conducted the inspection of the  said  alternate  access  on  24th
April, 2012 and prepared a report along with plan  and  submitted  the  same
before the High Court. The  said  plan  revealed  that  the  said  alternate
access does not have a minimum uniform width  of  1.5  metres  and  at  some
places the width was not 1.5 metres and it varied at various other points.
5.    Finally, by order dated 10th May, 2012, M.C.A. No.348/2011 came to  be
disposed of with the following observations:
“5.   The Court had directed the learned Mamlatdar to depute a  surveyor  to
ascertain as to whether such access is available at the  site.  The  learned
Mamlatdar has filed an affidavit dated 10/05/2012 along with the report  and
the sketch. On perusal of the sketch it appears  that  at  some  places  the
width is not 1.5 metres. Considering such disputed questions, it is not  for
this Court now to reconsider the matter  in  the  Writ  Petition  which  has
already been disposed of. But however,  in  case  the  basis  on  which  the
petition has been disposed  of  is  not  found  at  loco  as  sought  to  be
contended by the appellant/petitioner such grievance will have to be  raised
by the petitioner before the learned Mamlatdar in accordance with law.

6.    Shri Nigel Da Costa Frias,  the  learned  Counsel  appearing  for  the
applicant/ petitioner, upon instructions of the applicant who is present  in
Court, points out that he will not press for the  other  contentions  raised
in the above application, but however, he should be given an opportunity  to
file an appropriate application before  the  leaned  Mamlatdar  to  get  his
grievances with regard to the alternative access adjudicated.

7.    Without going into the correctness of the contentions of  the  Counsel
in respect of the  alternative  access  on  the  basis  of  which  the  Writ
Petition came ot be disposed of by this Court, the petitioner is  always  at
liberty if she is so entitled to approach the learned Mamlatdar with  regard
to her said claim of access to her property. In case  any  such  application
is filed the learned Mamlatdar will have to decide the  same  after  hearing
the concerned parties in accordance with law.”

6.    Thereafter, the respondent  filed  an  application  dated  29th  June,
2012, before the  Mamlatdar,  Bardez  to  reopen  the  proceedings.  By  the
judgment and order dated 28th March, 2013, the Mamlatdar,  Bardez  dismissed
the said application. The Revision Application against  the  same  was  also
dismissed  on  20th  September,  2013.  Against  the  aforesaid  order,  the
respondent filed a writ petition before the High Court.  After  hearing  the
parties by the impugned judgment, the High Court  while  setting  aside  the
order passed by the  Mamlatdar  and  the  Revisional  Authority  passed  the
following order:
“25. In the result, the petition partly succeeds.

(a)   The impugned orders  dated  28/03/2013  passed  by  the  Mamlatdar  of
Bardez  and 20/09/2013 passed by the Additional Collector-  II,  North  Goa,
are quashed and set aside.

(b)   The matter is remanded to the respondent No.2 to  decide  whether  for
reasons stated in the  application  and  in  accordance  with  law,  he  has
jurisdiction/powers   to    re-open    the    said    proceedings    bearing
No.MAM/BAR/MCA/4/2007 and if he comes to the conclusion  that  he  has  such
powers, then to adjudicate on the grievance of the  petitioner  with  regard
to the altenate access.

(c) If the respondent No.2 finds that the said  grievance of the  petitioner
is true and on account of the same and for other  reasons,  he  can  re-open
the proceedings,  then  he  shall  proceed  to  dispose  of  the  said  case
No.MAM/BAR /MCA/4/2007, in accordance with law, expeditiously.

(d)   The contentions of the parties are kept open  for  being  made  before
the respondent No.2.

(e)   Parties to appear before the respondent No.2  on  09/12/2013  at  3.00
p.m.”

7.    Learned counsel for the appellant  contended  that  in  terms  of  the
order dated 27th April, 2009 of  the  Panchayat  access  has  been  provided
through property bearing Survey No.162/9 for the benefit of  respondent  and
other residents of the locality after the NOC of the owner of  the  property
was taken, the only issue that was being considered by the  High  Court  was
that of alternative access. The grievance of the  respondent  that  at  some
points the minimum access of 1.5 metres was not available was  also  assured
to be made available by the Panchayat by removing the trees. Therefore,  the
direction of the High Court to reopen the entire issue was uncalled for.
8.    On the other hand, learned counsel for the respondent  submitted  that
earlier the High Court was misrepresented in view of  the  order  passed  by
the Panchayat and the High Court rightly remitted the matter to  decide  the
issue.
9.    The dispute between the appellant and the respondent reached  finality
when the High Court disposed of  the  Writ  Petition  No.422/2008  by  order
dated 4th May, 2009, therein the respondent conceded that  the  lis  in  the
Mamlatdar Court’s no longer  remains.  Learned  counsel  on  behalf  of  the
respondent undertook to withdraw the application in the  Mamlatdar’s  Court.
The office of the Village Panchayat, Calangute  was  ordered  to  issue  the
completion certificate as requested by the respondent  which  could  not  be
issued due to the election. The High Court directed to issue the  completion
certificate on or before 31st May, 2009. The writ petition was  disposed  of
accordingly and Appeal from Order No.59/2008 was allowed to be withdrawn.
10.   The High Court considering the fact that disputed question of fact  is
involved in the case by order dated 10th May, 2011 observed that it was  not
for the High Court to reconsider the matter in the writ petition  which  has
already been disposed of. However, in case the basis on which  the  petition
has been disposed of is not found at loco as sought by the  respondent  such
grievance will have to be raised by the respondent before the  Mamlatdar  in
accordance with law. Therefore, without going into the  correctness  of  the
contentions of the  parties  in  respect  of  the  alternative  access,  the
respondent was given liberty to approach the Mamlatdar, with regard  to  her
claim of access to her property, who was asked  to  decide  the  same  after
hearing the concerned parties in accordance with law.
11.   No direction was issued by the High Court to reopen  the  matter.  The
High Court has also not directed  the  Mamlatdar,  Bardez  to  consider  the
question  as  to  whether  he  has   jurisdiction/powers   to   reopen   the
proceedings. Such being the position, it was not open for the High Court  in
a subsequent writ petition  to  pass  any  order  enlarging  the  order  and
direction  issued  by  the  High  Court  in  the   earlier   Writ   Petition
No.422/2008.  At  best,  the  High  Court  could  have  asked  the   Village
Panchayat, Calagute to issue completion certificate, if  the  same  had  not
been issued pursuant to the direction of the High Court dated 4th May,  2009
in Writ Petition No.422/2008. It is only after issuance  of  the  completion
certificate, the respondent could have  decided  whether  she  is  satisfied
with such completion certificate or not. The respondent having accepted  and
given undertaking to withdraw the application  before  the  Mamlatdar  Court
there was no question of remitting the matter to the Mamlatdar.
12.   For the reason aforesaid, we set aside the judgment  and  order  dated
18th November, 2013 with liberty to respondent to move before the  Court  of
competent jurisdiction, if completion certificate has  not  been  issued  by
the Village Panchayat, Calagute  in  terms  of  the  order  passed  in  Writ
Petition No.422/2008  or  if  the  respondent  did  not  satisfy  with  such
completion certificate.
13.   The appeal is allowed with the aforesaid observations. No costs.

                                                          …………………………………………J.
                                               (SUDHANSU JYOTI MUKHOPADHAYA)


                                                          …………………………………………J.
                                             (R.K. AGRAWAL)
NEW DELHI,
JULY 2, 2014.