CIVIL APPEAL NO. 2641 OF 2012 STATE OF WEST BENGAL & ORS. APPELLANT(S) VERSUS PRONAB CHAKRABORTY RESPONDENT(S)

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                       CIVIL APPEAL  NO. 2641 OF 2012

STATE OF WEST BENGAL & ORS.                APPELLANT(S)

                        VERSUS

PRONAB CHAKRABORTY                         RESPONDENT(S)

                                    WITH

                       CIVIL APPEAL  NO. 2642 OF 2012

                       CIVIL APPEAL  NO. 2643 OF 2012

                       CIVIL APPEAL  NO. 2616 OF 2012

                       CIVIL APPEAL NO. 9828  OF 2014
               (arising out of S.L.P.(Civil) No. 9015 of 2014)


                           J  U  D  G  M  E  N  T

J.S. KHEHAR, J. :


CIVIL APPEAL  NO. 2641 OF 2012
            The respondent  –  Pronab  Chakraborty  was  inducted  into  the
employment of the police department of the State  of  West  Bengal,  wherein
while he was holding the post of Inspector  of  Police  in  the  Enforcement
Branch, he was issued a chargesheet dated  31.07.2007.   The  charges  which
were levelled against the respondent, are being extracted hereunder:



“CHARGE – 1 : While you were a S.I. of Police of Howrah District during  the
period between 01.01.88 and 31.12.93,  you  acquired  total  assets  in  the
shape of land, property and deposit  in  the  Bank  to  the  extent  of  Rs.
3,44,600/-. Out of the said sum, an amount  of  Rs.  2,69,246.80  paise  for
which you could not give any  cogent  explanation  for  acquisition  of  the
properties which were subsequently established as disproportionate of  asset
to your known source of income.

CHARGE – 2  :  On  21.06.2002  you  acquired  the  asset  in  the  shape  of
investment in United  Bank  of  India,  Sahanpur  Branch,  Howrah  as  fixed
deposit to the extent of Rs. 5,00,000/- (Rupees Five Lakhs) only  vide  A.C.
No. 401/02 in the name of your son, Partha Pratim Chakraborty and sister-in-
law Smt. Krishna Majumder both dependent on you.  You  could  not  give  any
cogent explanation for such acquisition which is  disproportionate  to  your
known source of income.

CHARGE – 3 : On 27.07.1988 while you were attached with the Howrah  District
as S.I., acquired immovable  property  in  the  shape  of  a  plot  of  land
measuring 3 Kathas vide Dag  No.  538,  Khatian  No.  678,  Mouza  Sahanpur,
District Howrah in the name of  your  wife,  Smt.  Sandhya  Chakraborty  and
dependent sister-in-law at the  cost  of  Rs.  33,600/-  vide  Deed  No.  1-
4344/88. You constructed a house thereon and subsequently  disposed  of  the
house by selling the same to Smt. Malati Devi Barnwal at the cost of  Rs.  3
Lakhs vide Sale Deed No. 1957/96.  You did not obtain  prior  sanction  from
your appointing authority before purchase of  land,  construction  of  house
and sale of the house which is obligatory on the part of a  Public  Servant.
As such, you are charged with gross misconduct.

CHARGE  –  4  :  On  24.10.2000  and  on  19.06.2003  you  acquired  movable
properties in the shape of Motor Cycle  having  registered  No.  WB-124-3924
at the cost of Rs. 47,000/- and WB-12H-7613 at the cost of Rs.  33,500/-  in
the name of your dependent son Shri Partha Pratim Chakraborty. You  did  not
obtain prior permission  from  your  appointing  authority  before  purchase
which is obligatory on the  part  of  a  Public  Servant.  You  are  thereby
charged with grave misconduct.

CHARGE – 5 : You ere charged with misconduct for not submitting  declaration
of assets for the period as they stood on  and  from  01.01.90  to  01.01.99
which were revealed from the Memo. No.  3219/DEB  dated  19.12.96  of  S.P.,
D.E.B.,  Howrah  and   Memo.   No.   118/PER/GA-II/PER/GA-II/45-2000   dated
22.01.2001 of  Inspector  General  of  Police,  Headquarters,  West  Bengal.
Those declaration of assets were called  for  the  purpose  of  scrutiny  of
assets either acquired by you in your own name or acquired in  the  name  of
other dependence on you.

CHARGE – 6 : You submitted your declaration of  assets  for  the  period  as
they stood on 25.08.99 and 31.01.2000 which should have  been  submitted  on
01.01.99 and  01.01.2000.   The  declaration  of  assets  bore  no  date  of
submission and you did not deliberately disclose  the  material  information
regarding acquisition of assets with a malafide intention  to  suppress  the
actual assets.  You were charged for grave misconduct.”


2.           Soon  after  the  issuance  of  the  above   chargesheet,   the
respondent retired from service on attaining the age  of  superannuation  on
31.01.2008.  Dissatisfied with the continuation of  the  above  departmental
proceedings (in furtherance of the chargesheet dated 31.07.2007), after  the
respondent - Pronab Chakraborty had attained the age of  superannuation,  he
approached the West Bengal Administrative Tribunal (hereinafter referred  to
as 'the Administrative Tribunal') by filing Case No. O.A. 8547 of 2007.   In
the above case an order dated 05.08.2010 was passed  by  the  Administrative
Tribunal, directing the  enquiring  authority  to  dispose  of  the  pending
departmental proceedings in accordance with the Rules.
3.          The above order dated 05.08.2010 was assailed by the  respondent
before the High Court of Calcutta (hereinafter  referred  to  as  'the  High
Court') by filing W.P.S.T No. 497 of 2010.  The primary  contention  of  the
respondent before the High Court was, that the respondent having retired  on
attaining  the  age  of  superannuation  (with  effect   from   31.01.2008),
departmental proceedings initiated against him,  could  not  be  allowed  to
proceed further.  The High Court, vide its impugned order dated  22.12.2010,
accepted the  prayer  made  by  the  respondent.   The  High  Court,  having
interpreted Rule 10(1) of the  West  Bengal  Services  (Death-cum-Retirement
Benefit) Rules, 1971 (hereinafter referred to as 'the 1971 Rules'),  arrived
at the conclusion, that departmental proceedings being conducted against  an
individual employee, could proceed further after the employee's  retirement,
only when the allegations contained in the  charges  levelled  against  him,
depict pecuniary loss to  the  State  Government.  The  High  Court  further
arrived at the conclusion,  that since  the  charges  levelled  against  the
respondent  herein,  did  not  depict  any  pecuniary  loss  to  the   State
Government, proceedings against the  respondent  could  not  continue  after
31.01.2008.
4.          The State of West Bengal has assailed the order  passed  by  the
High Court on 22.12.2010 by asserting, that Rule 10 of the  1971  Rules  had
been incorrectly interpreted by the  High  Court.  Therefore,  the  solitary
issue that arises for our  consideration  in  the  present  Appeal  is,  the
interpretation of Rule 10 of the 1971 Rules. Rule  10(1)  aforementioned  is
extracted hereunder:

“10. Right of the Governor to withhold pension in certain cases. -  (1)  The
Governor reserves to himself the  right  of  withholding  or  withdrawing  a
pension or any part of it whether permanently or  for  a  specified  period,
and the right of ordering the recovery from a pension of the whole  or  part
of any pecuniary loss caused to Government, if the pensioner is found  in  a
departmental or judicial proceeding to have been guilty of grave  misconduct
or negligence, during the period of his service, including service  rendered
on re-employment after retirement:

Provided that-

(a) such departmental proceeding if instituted  while  the  officer  was  in
service, whether before his retirement or during  his  re-employment,  shall
after the final retirement of the office,  be  deemed  to  be  a  proceeding
under this article and shall be continued and concluded by the authority  by
which it was commenced in the same manner as if the  officer  had  continued
in service;

(b) Such departmental proceedings, if not instituted while  the  office  was
in service, whether before his retirement or during his re-employment—

(i) shall not be instituted save with the sanction of the Governor;

(ii) shall not be in respect of any event which took place more  than  (four
years) before such institution; and

(iii) shall be conducted  by  such  authority  and  in  such  place  as  the
Governor may direct and in  accordance  with  the  procedure  applicable  to
departmental proceedings in which an order of dismissal from  service  could
be made in relation to the officer during his service;

(c) no such judicial proceeding, if not instituted while the officer was  in
service, whether before his retirement or during his re-employment shall  be
instituted in respect of a cause of action which arose  or  an  event  which
took place more than (four years) before such institution....”

A perusal of Rule 10(1) extracted hereinabove reveals,  that  two  different
kinds of punishments are contemplated thereunder. Firstly,  “...  the  right
of withholding or withdrawing a pension ...” which the  delinquent  employee
is entitled to, permanently or for a specified period.  And  secondly,  “...
the right of ordering the recovery from a pension of the whole  or  part  of
any  pecuniary  loss  caused  to  the  Government  ...”.   The   above   two
punishments can be inflicted on a  delinquent,  even  after  he  retires  on
attaining the age of superannuation, provided he is  found  guilty  of  “...
grave misconduct or negligence ...” during the period of his service.
5.          It is therefore apparent, that it  is  not  only  for  pecuniary
loss caused to the Government that proceedings can continue after  the  date
of superannuation. An employee can be proceeded against, after the  date  of
his retirement, on  account  of                  “...  grave  misconduct  or
negligence ...”. Therefore, even  in  the  absence  of  any  pecuniary  loss
caused to the Government, it  is  open  to  the  employer  to  continue  the
departmental proceedings  after  the  employee  has  retired  from  service.
Obviously, if such grave misconduct or negligence,  entails  pecuniary  loss
to the Government, the loss can also be ordered to  be  recovered  from  the
concerned employee. It was therefore not right for  the  High  Court,  while
interpreting Rule 10(1) of the 1971  Rules  to  conclude,  that  proceedings
after the date of superannuation  could  continue,  only  when  the  charges
entailed pecuniary loss to the Government.

6.          In view of the above, we hereby set  aside  the  impugned  order
passed  by  the  High  Court.  We  reaffirm  the   order   passed   by   the
Administrative Tribunal on 05.08.2010.
7.          Civil Appeal is allowed, with no order as to costs.
CIVIL APPEAL  NO. 2616 OF 2012
            Learned  senior  counsel  and  learned  counsel  for  the  rival
parties agree that the controversy in this Appeal  is  squarely  covered  by
the decision rendered by this Court in State of  West  Bengal  &  Ors.   Vs.
Pronab Chakraborty  (Civil Appeal No. 2641 of 2012 decided  on  October  15,
2014).
2.          The instant Civil Appeal is, accordingly, allowed, in  terms  of
order passed in Civil Appeal No. 2641 of 2012. No costs.
CIVIL APPEAL  NO. 2643 OF 2012
            Learned  senior  counsel  and  learned  counsel  for  the  rival
parties agree that the controversy in this Appeal  is  squarely  covered  by
the decision rendered by this Court in State  of  West  Bengal  &  Ors.  Vs.
Pronab Chakraborty  (Civil Appeal No. 2641 of 2012 decided  on  October  15,
2014).
2.          The instant Civil Appeal is, accordingly,  allowed, in terms  of
order passed in Civil Appeal No. 2641 of 2012.  No costs.
CIVIL APPEAL  NO. 2642 OF 2012
            Learned  senior  counsel  and  learned  counsel  for  the  rival
parties agree that the controversy in this Appeal  is  squarely  covered  by
the decision rendered by this Court in State  of  West  Bengal  &  Ors.  Vs.
Pronab Chakraborty  (Civil Appeal No. 2641 of 2012 decided  on  October  15,
2014).
2.          The instant Civil Appeal is, accordingly, allowed, in  terms  of
order passed in Civil Appeal No. 2641 of 2012.  No costs.

S.L.P.(CIVIL) NO. 9015 OF 2014
            Delay condoned.
2.          Leave granted.
3.           The  proposition  of  law  wherein  the  State  Government  had
preferred the present special leave petition, has been accepted by us  while
disposing of the case titled as State of  West  Bengal  &  Ors.  Vs.  Pronab
Chakrborty (Civil Appeal No. 2641 of 2012 decided on October 15,  2014).  In
fact, for the above reason, the instant matter came to be tagged with  Civil
Appeal No. 2641 of 2012.
4.          The decision rendered by us  in  Civil  Appeal               No.
2641 of 2012 does not go into the merits of the  controversy,  but  it  only
examines  the  permissibility  of  the  continuation  of  the   departmental
proceedings after the superannuation of the concerned employee.
5.          Therefore, even as against the respondent herein we  hold,  that
the departmental proceedings can be continued even after his  retirement  on
attaining the age of superannuation (with effect from  31.01.2007).   Viewed
thus, we consider it just and proper to relegate  the  matter  back  to  the
High Court for adjudication of the controversy raised by the  respondent  on
merits in accordance with law.  The High Court shall examine the  merits  of
the controversy, besides the issue which we have settled while disposing  of
Civil Appeal No. 2641  of 2012.
6.          Civil Appeal is disposed of  as  above,  with  no  order  as  to
costs.

                                  .........................J.
                                  (JAGDISH SINGH KHEHAR)



NEW DELHI;                  .............................J.
OCTOBER 15, 2014.                 (ARUN MISHRA)

CIVIL APPEAL NO. 9744 OF 2014 (Arising out of SLP(C) No.5694 of 2013) Dipanwita Roy …. Appellant versus Ronobroto Roy …. Respondent

                                                        “REPORTABLE”

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                     CIVIL APPEAL NO.   9744    OF 2014
                   (Arising out of SLP(C) No.5694 of 2013)


Dipanwita Roy                                           …. Appellant

                                   versus


Ronobroto Roy                                           …. Respondent

                               J U D G M E N T


Jagdish Singh Khehar, J.


1.     The  petitioner-wife  Dipanwita  Roy   and   the   respondent-husband
Ronobroto Roy, were married at Calcutta. Their marriage  was  registered  on
9.2.2003.  The present controversy  emerges  from  a  petition  filed  under
Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to  as  the
'Act') by the respondent, inter alia, seeking dissolution  of  the  marriage
solemnised  between  the  petitioner-wife  and  the  respondent-husband,  on
25.1.2003.
2.    One of the grounds for seeking  divorce  was,  based  on  the  alleged
adulterous life style of the petitioner-wife.  For his above assertion,  the
respondent-husband made the following allegations in paragraphs 23 to 25  of
his petition:
“23.  That since 22.09.2007 the petitioner never lived with  the  respondent
and did not share bed at all.   On  a  very  few  occasion  since  then  the
respondent came to the  petitioner's  place  of  residence  to  collect  her
things and lived there against the will of all to avoid public  scandal  the
petitioner did not turn the respondent house on those occasion.

24.   That by her extravagant life style the respondent has  incurred  heavy
debts.  Since she has not disclosed her present  address  to  bank  and  has
only given the address of the petitioner.  The men and collection agents  of
different  banks  are  frequently  visiting  the  petitioner's   house   and
harassing the petitioner.  They are looking for the respondent for  recovery
of their dues.  Notice from Attorney Firms for  recovery  of  due  from  the
respondent and her credit card statements  showing  heavy  debts  are  being
sent to the petitioner's address.  The respondent purchased one car in  2007
with the petitioner's uncle, Shri Subrata Roy Chowdhary  as  the  guarantor.
The respondent has failed to pay the installments regularly.

25.   That the petiitoner states that the respondent has gone  astray.   She
is leading a fast life and has lived in extra marital relationship with  the
said Mr. Deven Shah, a well to do person who too is a carrier gentlemen  and
has given birth to a child as a result of her cohabitation with  Shri  Deven
Shah.  It is reported that the respondent has given birth  to  a  baby  very
recently.  The respondent is presently living at the  address  as  mentioned
in the cause title of the plaint.”
                                                          (emphasis is ours)

3.    The above factual position was contested  by  the  petitioner-wife  in
her reply wherein she, inter alia, submitted as under:
“That the statements made in paragraph Nos.  5  and  6  of  the  plaint  are
admitted by the respondent to the extent that the  daughter  namely  “Biyas”
is residing in the custody of the respondent's mother with  the  arrangement
of the petitioner and as a result of which the petitioner used  to  come  at
his mother in law's place and spending  days   therein  and  the  respondent
used to spend time with him and carrying  on  their  matrimonial  obligation
which includes co-habitation.

That the statements made in paragraph  No.7  in  the  plaint  is  absolutely
false, concocted, untrue, frivolous, vexatious and made with the purpose  of
harassing the respondent and the  petitioner  is  call  upon  to  prove  the
allegation intoto.  It is categorically denied by the  respondent  that  she
was a selfish person, very much concern about her own self and  own  affairs
and without any concern for  the  petitioner  as  alleged.   The  respondent
further denied that she was self willed, arrogant  and  short  tempered  and
she used to fly into rage every now and then over small matter and  used  to
quarrel with the petitioner and  his  mother  as  alleged.   The  respondent
further denied and disputes that she used to  go  out  every  now  and  then
according to her whims without  informing  either  the  petitioner  and  his
mother as alleged. That the respondent further denies and disputes that  she
failed to disclose her whereabouts and used to stay out for  long  hours  as
alleged.  The respondent further denies and disputes that she does not  care
little for the feelings of either the petitioner or his mother  as  alleged.
The respondent further denies and disputes that she got extremely  irritated
and used to quarrel with the petitioner whenever  the  petitioner  tried  to
speak to her as alleged.

That the statements made in  paragraph  23  in  the  plaint  are  absolutely
imaginative, concocted and false  and  the  same  are  being  made  for  the
purpose of this case.  The respondent denies and  disputes  in  its  present
form the statement they lead an  extravagant  life  style  and  thereby  she
incurred  debts  as  alleged  therein  and  the  respondent   provided   her
matrimonial house address to the bank as because the same is  her  permanent
address  after  her  marriage.   The  respondent  denies  and  disputes  the
statement that men and collection agent of different banks  were  frequently
visiting the petitioner's house and harassing the petitioner  and  they  are
looking for the respondent for recovery of dues  as  alleged  therein.   The
respondent is to state and submit that many a times at  the  behest  of  the
petitioner she used to purchase many things for him and spent lot  of  money
while  attending  dinner  and  lunch  at  clubs  and  restaurants  with  the
petitioner.  The respondent is to  further  state  and  submit  on  repeated
insistence of the petitioner the respondent purchased a car  on  credit  for
accommodating herself smooth journey at her  office  work  as  well  as  for
other places and in such event the petitioner promised  that  he  would  pay
50% of the EMI in respect of purchase of the car which  is  actually  failed
to contribute.  It is needless to mention that the respondent  had  incurred
some debts due to financial recession in consequences of which she lost  her
job and as a result of that she failed to make payment  of  her  outstanding
to the bank in spite of her willingness although her parents extended  their
helpful hands to accommodate her which could enable to  come  out  from  the
debts but the petitioner is such situation kept himself silent.

That the statements made  in  paragraph  no.24  in  the  plaint  are  false,
untrue, frivolous and concocted and the same are being made with a  malafide
intention for degrading and harassing the respondent in the eye  of  society
in order to get the divorce from her. The  respondent  strongly  denies  and
disputes the statement that she is leading a  fast  life  in  extra  marital
relationship with one Mr. Deven Shah and she had given a birth  of  a  child
as  a  result  of  cohabitation  with  Shri  Deven  Shah  as  alleged.   The
respondent further denies and disputes the statement that she ever  live  in
the address mentioned in the case title in the plaint  as  alleged  and  the
petitioner is call upon to prove the statements into.

The respondent is to  state  and  submit  that  she  had  no  extra  marital
relationship with one Mr. Deven Shah.  It is pertinent to mention  that  the
respondent  is  having  a  continuous  matrimonial  relationship  with   the
petitioner and the petitioner too performed the matrimonial relation  to  as
well as the cohabitation with the  respondent  in  great  spirit  and  as  a
result of which  a male chid was  born.   At  this  stage  raising  question
regarding birth of the child would actually  put  adverse  effect  not  only
towards the family but also towards of the mind of  the  tender  aged  child
and this unscrupulous attitude is  actually  goes  against  the  concept  of
welfare of the child.”
                                                          (emphasis is ours)

A perusal of the written statement filed on behalf  of  the  petitioner-wife
reveals  that  the  petitioner-wife  expressly  asserted   the   factum   of
cohabitation during the subsistence of their marriage, and also  denied  the
accusations  levelled  by  the  respondent-husband  of  her  extra   marital
relationship,  as  absolutely  false,    concocted,  untrue,  frivolous  and
vexatious.
4.    In order to substantiate his claim, in respect of  the  infidelity  of
the petitioner-wife, and to establish that the son born to her was not  his,
the respondent-husband moved an application on 24.7.2011 seeking a DNA  test
of  himself  (the  respondent-husband)  and  the  male  child  born  to  the
petitioner-wife. The purpose seems  to  be,  that  if  the  DNA  examination
reflected, that the male child born to  the  petitioner-wife,  was  not  the
child of the respondent-husband, the allegations  made  by  the  respondent-
husband in paragraphs 23 to 25 of the petition, would  stand  substantiated.
      The petitioner-wife filed written  objections  thereto,  categorically
asserting, that the factual position depicted in the  application  filed  by
the respondent-husband was false, frivolous, vexatious  and  motivated.   It
was asserted that the allegations were designed in  a  sinister  manner,  to
cast a slur on the reputation of the petitioner-wife.   The  petitioner-wife
strongly denied and disputed  the  statement  made  at  the  behest  of  the
respondent-husband to the effect, that she was leading a fast life in  extra
marital relationship with Mr. Deven Shah, and had given birth to a child  as
a result of her cohabitation  with  the  said  Mr.  Deven  Shah.   She  also
asserted, that she  had  a  continuous  matrimonial  relationship  with  the
respondent-husband,  and  that,   the   respondent-husband   had   factually
performed all the  matrimonial  obligations  with  her,  and  had  factually
cohabited with her.  The petitioner-wife accordingly  sought  the  dismissal
of the application filed by  the  respondent-husband,  for  a  DNA  test  of
himself and the male child born to  the  petitioner-wife.   The  respondent-
husband filed a reply affidavit reiterating the factual  position  contained
in the application, and thereby also repudiating the assertions made by  the
petitioner-wife in her written objections.
5.    The Family Court by an order dated  27.08.2012  dismissed  the  prayer
made by the  respondent-husband,  for  conducting  the  afore-mentioned  DNA
test.
6.    Dissatisfied with the order passed by the Family Court  on  27.8.2012,
the respondent-husband approached the High Court  at  Calcutta  (hereinafter
referred to as the 'High Court') in its  civil  revisional  jurisdiction  by
filing CO No.3590 of 2012 under Article 227 of the  Constitution  of  India.
The High Court allowed the petition filed by the respondent-husband vide  an
order dated 6.12.2012.  The operative  part  of  the  impugned  order  dated
6.12.2012 is being extracted hereunder:
“CO No.3590 of 2012 is disposed of by setting aside the order  impugned  and
by directing the DNA test of the son of the wife  to  be  conducted  at  the
Central Forensic Science Laboratory on December  20,  2012.  The  wife  will
accompany her son to the laboratory at 11  am  when  the  petitioner  herein
will also be present and the DNA samples of the child and the  husband  will
be obtained by the laboratory in presence of  both  the  husband  and  wife.
The expenses for the procedure will be borne by the husband and  the  result
will be forwarded by the laboratory  as  expeditiously  as  possible  to  be
husband, the wife and the trial Court.  The expenses for such  purpose  will
be obtained in advance by the laboratory from the husband.

In addition, prior to December 20, 2012 the husband will deposit  a  sum  of
Rs.1 lakh with the trial court which will stand forfeited and made  over  to
the wife in the event the paternity test on the basis  of  the  DNA  results
shows the husband to be the father of the child.  In the  event  the  result
reveals that the petitioner is not the father of the child, the  money  will
be refunded by the trial Court to the petitioner herein.

The wife has sought  to  file  an  affidavit,  but  such  request  has  been
declined. The wife seeks a  stay  of  operation  of  this  order,  which  is
refused.  CO No.3590 of 2012 is disposed of without any order as to costs.

A copy of this order will immediately be forwarded to the laboratory by  the
husband such that the laboratory is ready to obtain the DNA  sample  on  the
specified date.”

                                                          (emphasis is ours)
Aggrieved with the  order  passed  by  the  High  Court  on  6.12.2012,  the
petitioner-wife has approached this Court  by  filing  the  instant  special
leave petition.  Notice  was  issued  by  this  Court  on  15.2.2013.    The
respondent-husband has entered appearance.  Pleadings are complete.
7.    Leave granted.
8.    Learned  counsel  for  the  appellant-wife,  in  the  first  instance,
invited our attention to Section 112 of the Indian Evidence Act.   The  same
is being extracted hereunder:
“112. Birth during marriage, conclusive proof of legitimacy- The  fact  that
any person was born during the continuance of a valid marriage  between  his
mother and any man,  or  within  two  hundred  and  eighty  days  after  its
dissolution, the mother remaining unmarried, shall be conclusive proof  that
he is the legitimate son of that man,  unless  it  can  be  shown  that  the
parties to the marriage had no access to each other  at  any  time  when  he
could have been begotten.”


Based on the aforesaid provision, learned  counsel  for  the  appellant-wife
drew our attention to decision rendered by the  Privy  Council  in  Karapaya
Servai v. Mayandi, AIR 1934 PC 49,  wherein  it  was  held,  that  the  word
'access' used in  Section  112  of  the  Evidence  Act,  connoted  only  the
existence of an opportunity for marital intercourse, and  in  case  such  an
opportunity was shown to have existed during the  subsistence  of  a   valid
marriage,  the  provision  by  a  fiction  of  law,  accepted  the  same  as
conclusive proof of the fact that the child born during the  subsistence  of
the valid marriage, was a legitimate child.  It was the  submission  of  the
learned counsel for the appellant-wife, that the determination of the  Privy
Council in Karapaya Servai's case(supra)  was  approved  by  this  Court  in
Chilukuri  Venkateshwarly  vs.  Chilukuri  Venkatanarayana,  1954  SCR  424.
Learned counsel for the appellant-wife  also  invited  our  attention  to  a
decision rendered by this Court in Goutam Kundu vs.  State  of  West  Bengal
and another, (1993) 3 SCC 418, wherein  this  Court,  inter  alia,  held  as
under:
“(1)  That Courts in India cannot order blood test as a matter of course.
(2)   Wherever applications are made for  such  prayers  in  order  to  have
roving inquiry, the prayer for blood test cannot be entertained.
(3)   There must be a strong prima facie  case  in  that  the  husband  must
establish non-access in  order  to  dispel  the  presumption  arising  under
Section 112 of the Evidence Act.
(4)   The Court must carefully examine as to what would be  the  consequence
of ordering the blood test; whether it will have the effect  of  branding  a
child as a bastard and the mother as an unchaste woman.
(5)   No one can be compelled to give samle of blood for analysis.”


Reliance was also placed on the decision rendered by  this  Court  in  Kamti
Devi and another v. Poshi Ram, AIR 2001 SC 2226,  wherefrom,  the  following
observations made by this Court, were sought to be highlighted:
“10.  But Section 112 itself provides an outlet to the party  who  wants  to
escape from the rigour of that conclusiveness.  The said outlet  is,  if  it
can be shown that the parties had no access to each other at the  time  when
the child could have been begotten the presumption  could  be  rebutted.  In
other words, the party who wants to  dislodge  the  conclusiveness  has  the
burden to show a negative, not merely that he did not have  the  opportunity
to approach his wife but that she  too  did  not  have  the  opportunity  of
approaching him during the relevant time. Normally, the rule of evidence  in
other instances is  that  the  burden  is  on  the  party  who  asserts  the
positive, but in this instance the burden is cast on the  party  who  pleads
the  negative.   The  raison  d'etre  is  the  legislative  concern  against
illegitimatizing a child.  It is  a  sublime  public  policy  that  children
should not suffer social disability on account of the laches  or  lapses  of
parents.

11.   We may remember that Section 112 of the Evidence Act was enacted at  a
time when the modern scientific advancements with Dioxy Nucleric Acid  (DNA)
as well as Ribonucleic Acid (RNA) tests were not even  in  contemplation  of
the  legislature.   The  result  of  a  genuine  DNA  test  is  said  to  be
scientifically accurate.  But even that is not enough  to  escape  from  the
conclusiveness of Section 112 of the Act, e.g., if a husband and  wife  were
living together during the time of conception  but  the  DNA  test  revealed
that the child was not born to the husband, the conclusiveness in law  would
remain unrebuttable.  This may look  hard  from  thepoint  of  view  of  the
husband who would be compelled to bear the fatherhood of a  child  of  which
he may be innocent.  But even in such a case the law leans in favour of  the
innocent child from being bastardized if his  mother  and  her  spouse  were
living  together  during  the  time  of  conception.   Hence  the   question
regarding  the  degree  of   proof   of   non-access   for   rebutting   the
conclusiveness must be answered in the light of what is meant by  access  or
non-access as delineated above.

12.....Its corollary is that the burden of the plaintiff-husband  should  be
higher than the standard of preponderance of  probabilities.   The  standard
of proof in such cases must at least be of a degree in between  the  two  as
to ensure that there  was  no  possibility  of  the  child  being  conceived
through the plaintiff-husband. “
                                                          (emphasis is ours)

Lastly, learned counsel for  the  appellant-wife,  placed  reliance  on  the
decision rendered by this Court in Sham Lal @ Kuldeep vs. Sanjeev Kumar  and
others, (2009) 12 SCC 454, wherein it was inter alia, held as under:
“Once the validity of marriage is proved then there  is  strong  presumption
about the legitimacy of children born from that  wedlock.   The  presumption
can  only  be  rebutted  by  a  strong,  clear,  satisfying  and  conclusive
evidence.   The  presumption  cannot  be  displaced  by  mere   balance   of
probabilities or any circumstance creating  doubt.   Even  the  evidence  of
adultery by wife which though  amounts  to  very  strong  evidence,  it,  by
itself, is not quite sufficient to  repel  this  presumption  and  will  not
justify finding of illegitimacy if husband has had access.  In  the  instant
case, admittedly the plaintiff and Defendant 4 were born  to  D  during  the
continuance of her valid marriage with B.  Their marriage was in fact  never
dissolved.  There is no evidence on record that B at any point of  time  did
not have access to D.”
                                                          (emphasis is ours)



It was, therefore, the vehement contention of the learned  counsel  for  the
appellant-wife, that the impugned order passed by the High Court  directing,
holding of a DNA test, of the respondent-husband and the male child born  to
the appellant-wife, may be set aside.
9.    All  the  judgments  relied  upon  by  the  learned  counsel  for  the
appellant were on the pointed subject of the legitimacy of  the  child  born
during the subsistence of a valid marriage.  The question  that  arises  for
consideration in the present appeal, pertains to the alleged  infidelity  of
the  appellant-wife.    It  is  not  the  husband's  desire  to  prove   the
legitimacy or illegitimacy of the child born to the appellant.  The  purpose
of the respondent is, to establish the ingredients of Section  13(1)(ii)  of
the Hindu Marriage Act, 1955, namely, that after the  solemnisation  of  the
marriage  of  the  appellant  with  the  respondent,   the   appellant   had
voluntarily engaged in sexual intercourse, with  a  person  other  than  the
respondent.  There can be no doubt, that the prayer made by  the  respondent
for conducting a DNA test of the appellant's son as  also  of  himself,  was
aimed at  the  alleged  adulterous  behaviour  of  the  appellant.   In  the
determination of the issue in hand, undoubtedly,  the  issue  of  legitimacy
will also be incidentally  involved.   Therefore,  insofar  as  the  present
controversy is concerned, Section 112 of the Indian Evidence Act  would  not
strictly come into play.  A similar issue came to  be  adjudicated  upon  by
this Court in Bhabani Prasad  Jena  vs.  Convenor  Secretary,  Orissa  State
Commission for Women and another, (2010) 8 SCC 633, wherein this Court  held
as under:
“21.  In a matter where paternity of a child is in issue before  the  court,
the use of DNA test is an extremely  delicate  and  sensitive  aspect.   One
view is that when  modern  science  gives  the  means  of  ascertaining  the
paternity of a child, there should not be any hesitation to use those  means
whenever the occasion requires.  The other view is that the  court  must  be
reluctant in the use of such scientific advances and tools which  result  in
invasion of  right  to  privacy  of  an  individual  and  may  not  only  be
prejudicial to the rights of the parties but may have devastating effect  on
the child.  Sometimes the result of such scientific test may  bastardise  an
innocent child even though his mother and her spouse  were  living  together
during the time of conception.

22.   In our view, when there is apparent  conflict  between  the  right  to
privacy of a person not to submit himself forcibly  to  medical  examination
and duty of the court to reach  the  truth,  the  court  must  exercise  its
discretion only after balancing the interests of  the  parties  and  on  due
consideration whether for a  just  decision  in  the  matter,  DNA  test  is
eminently needed. DNA test in a matter relating  to  paternity  of  a  child
should not be directed by the court as a matter of course or  in  a  routine
manner, whenever such a request is made.  The court has to consider  diverse
aspects including presumption under  Section 112 of the Evidence  Act;  pros
and cons of such order and the test of “eminent  need”  whether  it  is  not
possible for the court to reach the truth without use of such test.

23.   There is no conflict in  the  two  decisions  of  this  ourt,  namely,
Goutam Kundu vs. State of West Bengal  (1993)  3  SCC  418  and  Sharda  vs.
Dharmpal (2003) 4 SCC 493. In Goutam Kundu,  it  has  been  laid  down  that
courts in India cannot order blood test as  a  matter  of  course  and  such
prayers cannot be granted to have  roving  inquiry;  there  must  be  strong
prima facie case and the court must carefully examine as to  what  would  be
the consequence of ordering the blood  test.  In  Sharda,  while  concluding
that a matrimonial court has power to order a person to  undergo  a  medical
test, it was reiterated that the court should exercise such a power  if  the
applicant has a strong prime facie case and  there  is  sufficient  material
before the court.  Obviously, therefore, any  order  for  DNA  test  can  be
given by the court only if a strong prima facie case is made out for such  a
course.

24.   Insofar as the present case is concerned, we have  already  held  that
the State Commission has no authority, competence  or  power  to  order  DNA
test.  Looking to the nature of proceedings with which the  High  Court  was
concerned, it has to be held that the High Court exceeded  its  jurisdiction
in passing the impugned order. Strangely, the High Court overlooked  a  very
material aspect that the matrimonial dispute between the parties is  already
pending in the court of competent jurisdiction and  all  aspects  concerning
matrimonial dispute raised by the parties in that case shall be  adjudicated
and determined by that court. Should an issue arise before  the  matrimonial
court concerning the paternity of the child, obviously that  court  will  be
competent to pass an appropriate order at the relevant  time  in  accordance
with law.  In any view of the matter, it is  not  possible  to  sustain  the
order passed by the High Court. “
                                                          (emphasis is ours)

It is therefore apparent, that despite the consequences of a DNA test,  this
Court has concluded, that it was permissible  for  a  Court  to  permit  the
holding of a DNA test, if it  was  eminently  needed,  after  balancing  the
interests of the parties.  Recently, the issue was again considered by  this
Court in Nandlal Wasudeo Badwaik  vs.  Lata  Nandlal  Badwaik  and  another,
(2014) 2 SCC 576, wherein this Court held as under:
“15.  Here, in the present case, the wife had pleaded that the  husband  had
access to her and, in fact, the child was born in the said wedlock, but  the
husband had specifically pleaded that after his wife  left  the  matrimonial
home, she did not return and thereafter, he had no access to her.  The  wife
has admitted that she had left the matrimonial home  but  again  joined  her
husband. Unfortunately, none of the courts  below  have  given  any  finding
with regard to this plea of the husband that he had not any  access  to  his
wife at the time when the child could have been begotten.

16.   As stated earlier, the DNA test is an accurate test and on that  basis
it is clear that the appellant is not the  biological  father  of  the  girl
child.  However, at the same time, the condition  precedent  for  invocation
of Section 112 of the Evidence Act has been established and no finding  with
regard to the plea of the husband that he had no access to his wife  at  the
time  when  the  child  could  have  been  begotten   has   been   recorded.
Admittedly, the child has been  born  during  the  continuance  of  a  valid
marriage.  Therefore, the provisions of Section  112  of  the  Evidence  Act
conclusively prove that Respondent 2 is the daughter of  the  appellant.  At
the same time, the DNA test reports, based on  scientific  analysis,  in  no
uncertain terms suggest that the appellant is  not  the  biological  father.
In such circumstances, which would give  way  to  the  other  is  a  complex
question posed before us.

17.   We may remember that Section 112 of the Evidence Act was enacted at  a
time when the modern scientific advancement and DNA test were  not  even  in
contemplation of the legislature. The result of  DNA  test  is  said  to  be
scientifically accurate.  Although  Section  112  raises  a  presumption  of
conclusive proof on satisfaction of the conditions  enumerated  therein  but
the same is rebuttable. The  presumption  may  afford  legitimate  means  of
arriving at an affirmative legal conclusion. While  the  truth  or  fact  is
known, in our opinion, there is no need or room for any presumption.   Where
there is evidence to the contrary, the presumption is  rebuttable  and  must
yield to proof.  The interest of justice is best served by ascertaining  the
truth and the court should be furnished with the best available science  and
may not be left to bank upon presumptions, unless science has no  answer  to
the facts in issue.  In our opinion, when there  is  a  conflict  between  a
conclusive proof envisaged  under  law  and  a  proof  based  on  scientific
advancement accepted by the world community to be correct, the  latter  must
prevail over the former.

18.   We must understand the distinction between a  legal  fiction  and  the
presumption of a fact.  Legal fiction assumes existence of a fact which  may
not really exist.  However, a presumption of a fact depends on  satisfaction
of certain circumstances.  Those circumstances logically would lead  to  the
fact sought to be presumed. Section 112 of the Evidence Act does not  create
a legal fiction but provides for presumption.

19.   The husband's plea that he had no access to the wife  when  the  child
was begotten stands proved by the DNA test report and in the face of it,  we
cannot compel the appellant to bear the fatherhood  of  a  child,  when  the
scientific reports  prove  to  the  contrary.   We  are  conscious  that  an
innocent child may not be bastardised as the  marriage  between  her  mother
and father was subsisting at the time of her birth, but in view of  the  DNA
test reports and what we  have  observed  above,  we  cannot  forestall  the
consequence.  It is denying the truth. “Truth must triumph” is the  hallmark
of justice.”

                                                          (emphasis is ours)

This Court has therefore clearly opined, that proof  based  on  a  DNA  test
would be sufficient to dislodge, a presumption  under  Section  112  of  the
Indian Evidence Act.
10.   It is borne from the decisions rendered  by  this  Court  in   Bhabani
Prasad Jena (supra), and Nandlal Wasudeo Badwaik (supra), that depending  on
the facts and circumstances of the case,  it  would  be  permissible  for  a
Court to direct the holding of a DNA examination, to determine the  veracity
of the allegation(s), which constitute one of  the  grounds,  on  which  the
concerned party would either succeed or lose.   There  can  be  no  dispute,
that if the direction to hold such a test can be avoided, it  should  be  so
avoided.  The reason, as already  recorded  in  various  judgments  by  this
Court, is that the legitimacy of a child should not be put to peril.
11.   The question that has to be answered in this case, is  in  respect  of
the alleged infidelity of the appellant-wife.   The  respondent-husband  has
made clear and categorical assertions in the petition  filed  by  him  under
Section 13 of the Hindu Marriage Act, alleging infidelity.  He has  gone  to
the extent of naming the person, who was the father of the male  child  born
to  the  appellant-wife.   It  is  in  the  process  of  substantiating  his
allegation  of  infidelity,  that  the  respondent-husband   had   made   an
application before the Family Court for conducting a DNA test,  which  would
establish whether or not, he  had  fathered  the  male  child  born  to  the
appellant-wife.   The respondent feels that it is only possible for  him  to
substantiate the  allegations  levelled  by  him  (of  the  appellant-wife's
infidelity) through a DNA test.  We agree with him.  In our  view,  but  for
the  DNA  test,  it  would  be  impossible  for  the  respondent-husband  to
establish and  confirm  the  assertions  made  in  the  pleadings.   We  are
therefore satisfied, that the direction issued by the  High  Court,  as  has
been extracted hereinabove, was fully justified.   DNA testing is  the  most
legitimate and scientifically perfect means, which the  husband  could  use,
to establish his assertion of infidelity.   This  should  simultaneously  be
taken as the most authentic, rightful and correct means also with the  wife,
for her to rebut the assertions  made  by  the  respondent-husband,  and  to
establish that she had not been unfaithful, adulterous or disloyal.  If  the
appellant-wife is right, she shall be proved to be so.
12.    We would, however, while upholding  the  order  passed  by  the  High
Court, consider it just and appropriate  to  record  a  caveat,  giving  the
appellant-wife liberty to comply with or disregard the order passed  by  the
High Court, requiring the holding of the DNA test. In case, she accepts  the
direction  issued  by  the  High  Court,  the  DNA   test   will   determine
conclusively the veracity of accusation levelled by the  respondent-husband,
against her. In case, she declines to comply with the  direction  issued  by
the High Court, the allegation would be determined by the  concerned  Court,
by drawing a presumption of the nature contemplated in Section  114  of  the
Indian Evidence Act, especially,  in  terms  of  illustration  (h)  thereof.
Section  114  as  also  illustration  (h),  referred  to  above,  are  being
extracted hereunder:
“114. Court may presume existence of certain facts – The Court  may  presume
the existence of any fact which it thinks likely to  have  happened,  regard
being had to the common course of natural events, human conduct  and  public
and private business, in their relation  to  the  facts  of  the  particular
case.

Illustration (h) -     That if a man refuses to answer a question  which  he
is not  compelled  to  answer  by  law,  the  answer,  if  given,  would  be
unfavourable to him.”

This course has been adopted to preserve the right of individual privacy  to
the extent possible.  Of course, without sacrificing the cause  of  justice.
By adopting the above  course,  the  issue  of  infidelity  alone  would  be
determined, without expressly disturbing the presumption contemplated  under
Section 112 of the Indian Evidence Act.   Even  though,  as  already  stated
above, undoubtedly the  issue  of  legitimacy  would  also  be  incidentally
involved.
13.   The instant appeal is disposed of in the above terms.


…........................................J.
                                       (Jagdish Singh Khehar)




…..........................................J.
                                       (R.K. Agrawal)
New Delhi;
October 15, 2014.

SPECIAL LEAVE PETITION (CIVIL) NO. 19552 OF 2013 Deo Kalya Patil & Ors. …Petitioners Versus Nagindas Shamjibhai Shah Thr. Lrs. & Ors. …Respondents

                                                              Non-reportable
                        IN THE SUPREME COUR OF INDIA
                        CIVIL APPELLATE JURISDICTION

              SPECIAL LEAVE PETITION (CIVIL) NO. 19552 OF 2013


Deo Kalya Patil & Ors.                             …Petitioners

                             Versus

Nagindas Shamjibhai Shah Thr. Lrs. & Ors.    …Respondents





                               J U D G M E N T



Chelameswar, J.

1.    The petitioners herein are the plaintiffs in suit No .632 of  2010  on
the file of the  Special  Civil  Judge  (Senior  Division),  Thane  and  the
respondents are the defendants therein.  For the sake  of  convenience  they
are referred to in this judgment as they are  in  the  suit.   The  suit  is
filed with the prayers as follow:-
it be declared that the suit lands were agricultural lands on 1.4.1957;

if be declared that the predecessor-in-title –  Kalya  Padya  Patil  of  the
Plaintiffs was lawfully in possession and  cultivating  the  suit  lands  on
1.4.1957 as tenant thereof and consequently had become the deemed  purchaser
thereof and the Plaintiffs being the heirs of said  Kalya  Padya  Patil  are
therefore entitled to the benefits conferred upon him by the  provisions  of
B.T. & A.L. Act.

It be declared that the Sale transactions that took place after the  Tillers
Day i.e. dated 22.3.1960, 21.10.1963 and 30.5.1964 which  were  recorded  in
the Mutation Entry Nos. 357, 466 and 467 respectively, are illegal,  bad  in
law, void ab-initio and not binding upon the Plaintiffs.

It be declared that the proceedings i.e. Tenancy Case No. 22 of 1964 and  23
of 1964 initiated by the predecessor-in-title of Defendant Nos. 1 to 6  were
not maintainable hence, the  orders  dated  30.1.1965  passed  in  the  said
proceedings are without jurisdiction,  nullity  and  not  binding  upon  the
Plaintiffs.

It be declared that the Plaintiffs being the heirs of the said  Kalya  Padya
Patil (since deceased) are entitled to the  entire  compensation  which  was
wrongly awarded by the CIDCO to the Defendant Nos. 1 to 6.

It be declared that the Plaintiffs being the heirs of the said  Kalya  Padya
Patil (since deceased) are entitled to the allotment of  land/plots  as  per
the 12.5% scheme framed by the CIDCO.

The Hon’ble Court may be pleased to issue perpetual injunction  to  restrain
the Defendant No. 7, its servants, agents,  officers,  etc.  from  allotting
lands under 12.5% scheme by it in favour of Defendant No.  1  to  6  or  any
person claiming under them.

Pending  the  hearing  and  final  disposal  of  this  suit  and  injunction
application, the Hon’ble  Court  may  be  pleased  to  grant  an  Ad-Interim
Injunctions in terms of clause (g) above.

To award any other relief this Hon’ble Court may deem fit and proper in  the
circumstances of the case.

To award the cost of the suit.”


2.     Along  with  the  suit,  the  plaintiffs  filed  an  application  for
injunction against  the  7th  defendant  (City  and  Industrial  Development
Corporation) from allotting any land  under  a  scheme  said  to  have  been
propounded by the 7th defendant in favour of any one of  the  defendants  or
persons claiming through the defendants.  By an order  dated  23.12.2010  of
the trial court, the injunction as prayed for was  granted.  The  defendants
appealed to the High Court.   The said appeal was  disposed  of  by  setting
aside the order of the trial court with a further direction:
“16…..that the original Defendant No. 7 CIDCO is at  liberty  to  scrutinize
the application made by  the  original  Defendant  Nos.  1  to  6/Appellants
before me and in the event the CIDCO decides to allot the land  under  12.5%
scheme in their favour and  issues  an  Allotment  letter,  that  order  and
direction of the CIDCO and all steps in furtherance thereof shall  abide  by
the outcome of this civil suit,  namely,  Special  Civil  Suit  No.  632  of
2010.”

along with certain observations, the details of which may not  be  necessary
for the present purpose.

3.    Aggrieved by the same, the plaintiffs preferred the instant SLP.



4.    The litigation has a long and checkered history.  It is  the  admitted
case that both the  parties  claim  their  respective  rights  in  the  suit
scheduled  property  through  a  common  predecessors  in  interest  Ibrahim
Shahabuddin  and  Mariamba  Mohammed.    The  plaintiffs  claim  that  their
predecessor in title one Kalya Padya Patil (for  short  “Kalya  Patil”)  was
the tenant of the suit scheduled property.  The plaintiffs do  not  describe
what exactly is their relationship with Kalya  Patil  either  in  the  cause
title or in the body of the plaint (copy of the  plaint  is  placed  on  the
record of this Court), except saying that they  are  the  “heirs  and  legal
representatives of Kalya Patil who died on 27.7.1963”.

5.    It is the case of the plaintiffs that Kalya Patil’s  name  is  entered
as a protected tenant  in  the  concerned  revenue  records  “the  plaintiff
states that in the survey that took place in  1946,  the  said  Kalya  Patil
(deceased) was found in possession of following 14  survey  numbers  forming
part of suit lands….....   Accordingly, his name was mutated in the  revenue
records as a protected tenant by effecting Mutation Entry No. 289.”

6.    It is also  the  case  of  the  plaintiffs  that  the  predecessor  in
interest of the defendants one Mavjibhai Gohil “had purchased certain  lands
along with the suit lands in 1944  from  Ibrahim  Shahabuddin  and  Mariamba
Mohammed.”

7.    On 30th June, 1964, the suit scheduled property along with other
properties was acquired under the provisions of the Maharashtra Industrial
Development Act.

8.    In the year 1977, the plaintiffs filed tenancy application No.  23  of
1979  seeking  enquiry  under  Section  32G  of  the  Bombay   Tenancy   and
Agricultural Lands Act,  1948  (hereinafter  referred  to  as  the  “Tenancy
Act”).  The said case was dismissed on 11.12.1980.   Plaintiffs carried  the
matter in Appeal No. 2/1981 unsuccessfully.  By an  order  dated  25.2.1983,
the said appeal was also dismissed.  The whole process is described  in  the
plaint at para 30 as follows:-

“The Plaintiff  state  that  the  said  case  No.  23/79  was  dismissed  on
11.12.1980 by the Additional Tehsildar.  The  Plaintiffs,  therefore,  filed
Tenancy Appeal No. 2 of 1981 before the Sub-Divisional Officer.    The  Sub-
Divisional Officer dismissed the  Appeal  on  25.2.1983.    The  Plaintiffs,
thereafter,  filed  Tenancy  Application  No.  202  of   1983   before   the
Maharashtra Administrative  Tribunal.   The  Hon’ble  Tribunal  allowed  the
Revision by its order  dated  9.12.1985  and  set  aside  the  orders  dated
11.12.1980 and 25.2.1983 and  directed  that  question  of  tenancy  of  the
Plaintiffs be determined from the year  1977.    In  short  the  matter  was
remanded for fresh enquiry in respect of tenancy rights of the  Plaintiffs.”
                 (Plaint)


9.    The order of the Maharashtra Administrative Tribunal  dated  9.12.1995
was challenged by the predecessors in interest of  the  defendants  in  Writ
Petition No. 3446 of 1986.

“32.   The Plaintiffs state that the said  Nagindas  Shah  (deceased),  Smt.
Jayalaxmi  (deceased)  and  Rasikabai  challenged  the  said   order   dated
9.12.1985 by filing Writ Petition No. 3446 of 1986.   On 24th August,  2000,
the said petition was disposed of finally by the Hon’ble  Mr.  Justice  T.K.
Chandrashekhar Das.   The Plaintiffs file copy of the  Judgement  and  Order
24.8.2000 and shall rely upon the same.    The Hon’ble High  Court  remanded
the matter back to the Tahsildar for fresh enquiry as  to  decide  what  was
the character of the suit land on 1.4.57.   The  Defendants  predecessor-in-
title therefore filed Special Leave Petition in the Hon’ble  Supreme  Court,
which was dismissed.”


10.   In view of the Order passed by the High Court on  24th  August,  2000,
remanding the matter for fresh enquiry, the Tehsildar  by  his  Order  dated
12.8.2002 held that the plaintiffs are the protected  tenants  of  the  suit
land as on 1.4.1957.  The defendants carried the matter in  Appeal  No.  163
of 2002 in the Court of the Sub-Divisional Officer, Thane.  The said  appeal
was allowed on 8.5.2003.

11.   Aggrieved by the said  appellate  order,  the  plaintiff  carried  the
matter in revision  Application  No.  292/B/2003  before  the  Commissioner,
Konkan Division, Mumbai.  Along with the revision, the plaintiffs  sought  a
stay of the operation of the appeal order dated 8.5.2003  when  the  interim
order was declined.    Plaintiffs preferred a  writ  petition  No.  6116  of
2003 challenging the said  order.   The  High  Court,  by  its  order  dated
2.12.2003,  directed  the  District  Commissioner  to  consider   the   said
application on merits while directing the  stay  of  the  execution  of  the
appellate  order  dated  8.5.2003  in  favour  of   the   defendants.    The
Commissioner, once again considered the case on merits in obedience  to  the
order of the High Court, and stayed the order dated  8.5.2004.   Challenging
the same, the plaintiff again filed another Writ Petition No. 5652 of  2004.
 During the pendency of the said writ petition, on 14.7.2004 the High  Court
directed that no land be allotted in favour of the  defendants  pursuant  to
the scheme dated 16.12.1990, referred to supra.

12.   On 18.12.2009, the revision No. 292/B/2003 came to be dismissed.    As
a consequence, writ petition No. 5652 of 2004  also  came  to  be  dismissed
holding that in the background of the  above-mentioned  intensely  contested
facts, writ petition is not an appropriate remedy  and  granted  liberty  to
the plaintiffs to file a suit.   Hence Suit No. 632 of 2010.

13.   In the said suit, the plaintiffs  filed  an  application  under  Order
XXXIX Rule 1 & 2 CPC with a prayer as follows:
“It is, therefore, prayed pending hearing and  disposal  of  this  Suit  and
this Application, the Hon’ble Court may be pleased to issue  ad-interim  ex-
parte injunction against the Defendant No.7, its servant, agents,  officers,
etc. from allotting any land under 12.5% scheme to Defendant No.1  to  6  or
any person claiming under them.”


14.   By an order dated 23.12.2010,  the  learned  Jt.  Civil  Judge,  S.D.,
Thane allowed the application.  The operative portion of the order reads  as
follows:
“37)  The foregoing facts would make it clear that many more questions  have
been raised in the dispute, which require adjudication  on  its  own  merits
for which there  definitely  exists  a  prima-facie  case  and  the  triable
issues.

The question raised by plaintiffs, have its concern with  legal  rights  and
its declaration, for the reasons of which at this juncture, no  interference
can jumped at that the wrong, if any, would be capable of being  compensated
in money terms.  But as the question of legal rights and legal character  is
involved in the dispute, the only  logical  interference  prevails  at  this
juncture that in the event of withholding the relief probability  cannot  be
ruled out that intermediate damages would be caused to plaintiffs.

Parties are litigating for years together right from the year  1963  onwards
till date.  And during crucial period of such litigation, suit property  was
ordered to be preserved in status-quo  so  as  to  protect  the  rights  and
interests of the rightful persons.   Such  rights  are  yet  to  be  finally
decided, for which present suit is claimed to have instituted.   This  being
the factual position, no interference surfaces in a  fashion  that  granting
the relief would anyway have adverse  effect  of  any  sort,  especially  on
defendants No.1 to 6, who claim themselves to  be  beneficiaries  under  the
scheme, particularly when plaintiffs also claim entitlement to  the  similar
benefit which is claimed by defendants No.1 to 6.  And being so, unless  and
until legal status and character of the persons competent  and  entitled  to
declaration of rights sought herein, is not so finally declared, any  action
on the part of defendant No.7 would amount to unnecessary haste, not at  all
warranted in available situation, for the reasons of which balance  at  this
juncture definitely tilts in plaintiffs favour.  As  such,  the  points  are
replied accordingly, with order to follow:

                                    ORDER

Application Exh.5 is allowed.

Defendant No.7 is temporarily  restrained  from  making  allotment  of  land
under 12.5% scheme in favour of Defendants No.1 to 6 until disposal of  main
suit.”

15.   Aggrieved by the same, the defendants carried the matter in appeal  to
the High Court of Bombay which came to be  allowed  by  the  order  impugned
herein.  The High  Court  noticed  various  proceedings  reiterated  by  the
plaintiffs without success and opined that  the  Courts  below  ignored  the
said fact while granting the injunction.  The relevant portion of  the  said
order reads as follows:
“14.  To my mind, there is a serious issue which needs to  be  tried  as  to
whether the status as claimed and the declaration sought  can  be  given  in
the facts and circumstances by the Civil Court.  As held this  issue  cannot
be  ignored  and,  equally,  maintainability  of   the   proceedings.    The
Plaintiffs do not dispute that their predecessor has not been successful  in
obtaining that declaration.  The  last  order  in  the  list  of  dates  and
events,  namely,  that  of  the  Maharashtra  Revenue  Tribunal  dated   8th
December, 2009 records all findings against the original Plaintiffs.

15.    When  such  serious  issues  were   raised   with   regard   to   the
maintainability of the proceedings and  after  checkered  litigation,  then,
the Trial Court should not have restrained the CIDCO from  making  allotment
of the land under 12.5%  in  favour  of  the  Appellants/Original  Defendant
Nos.1 to 6 until disposal of  the  main  suit.   There  is  nothing  in  the
impugned order which would enable me to hold that  the  original  Plaintiffs
have made out a strong prima facie case, that the balance of convenience  is
in their favour or that irreparable loss and injury would be caused to  them
if merely the CIDCO processes the application  of  the  Defendant  Nos.1  to
6/Appellants before me and makes any allotment in their favour.”



16.   The plaintiffs in their pleadings of Suit No.632 of 2010  at  para  19
have admitted that in the prior proceedings initiated by  the  predecessors-
in-title of the plaintiffs Deo Kalya,  Rama  Kalya,  Halya  Kalya  and  Smt.
Barkibai Kalya made statements to the effect that their names  were  wrongly
entered in the revenue records through oversight.  The said paragraph  reads
as follows:
“In order to  deprive  the  plaintiffs  from  participating  in  acquisition
proceedings and  claiming  proportionate  share  in  the  compensation,  the
predecessors in title of defendants to 1  to  6  without  having  locus  and
valid title deliberately filed Tenancy  Case  No.22/64  against  Rama  Kalya
Patil and four others and 23/64 against Deo Kalya  Patil  to  seek  negative
declaration that they were not concerned with  the  49  Acres  of  the  suit
lands.  In the said proceedings the predecessors in title  of  Defendants  1
to 6 by taking undue advantage of their poverty and  illiteracy  managed  to
procure depositions of Deo Kalya, Rama Kalya, Halya Kalya and Smt.  Barkibai
Kalya on 23.1.1965 against their own  interest  to  the  effect  that  their
names were wrongly entered in the revenue  records  through  oversight.  The
Tenancy Awal Karkun without holding any enquiry accepted depositions of  the
said persons  as  it  is  and  deleted  their  names  by  his  orders  dated
30.1.1965.  Copies of the depositions are filed herewith and the  plaintiffs
shall rely upon the same.  The copies of  the  Orders  dated  30.1.1965  are
filed herewith and the plaintiffs shall rely upon the same.”

17.   We do not wish to examine the implication of  the  said  statement  as
such examination by this Court at this stage is, in our opinion,  likely  to
adversely effect the rights of the parties in the suit one way or the  other
but it is a relevant factor which ought to be kept in mind  before  granting
an interim order, such as the one passed by the trial Court.

18.    Shri  Dushyant  Dave,  learned  senior  counsel  for  the  plaintiffs
submitted that since the Tenancy Act is meant for  protecting  the  interest
of the tenants, the High Court (by the impugned judgment) ought not to  have
interfered with the interim injunction granted by the trial Court.

19.   In response, Shri Harish N. Salve,  learned  senior  counsel  for  the
defendants submitted that the plaintiffs  have  already  parted  with  their
rights by assigning their rights, title or interest,  whatever  they  assert
in the disputed property, in favour of a third party for a consideration  of
an amount of Rs.8,39,14,001/-.

20.   In our opinion, the petition such as the one on  hand  ought  to  have
been dismissed on the simple ground that it arises out of  an  interlocutory
order during the pendency of the suit.  The legality of  such  interlocutory
order has  already  been  considered  by  an  appellate  Court  which  is  a
constitutional Court.  But in matters where the stake is huge, such  as  the
one on hand, passionate arguments are advanced before this court  giving  an
impression that  something  really  untoward  has  happened  in  the  matter
inducing the Court to undertake detailed examination.

21.   On a closer examination, we do not find any reason to  interfere  with
the impugned order.   Special Leave Petition is therefore, dismissed.

                                                               ………………………….J.
                                                              (J.
Chelameswar)


                                                              ……………………..….J.
                                                      (A.K. Sikri)
New Delhi;
October 15, 2014




-----------------------
13

CIVIL APPEAL No. 9722 OF 2014 [Arising out of SLP(C) No.13844 of 2013] SARJEET SINGH (D) TH. LRS. ….. APPELLANT(S) vs HARI SINGH & ORS. ….. RESPONDENT(S)

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                       CIVIL APPEAL No. 9722   OF 2014
                  [Arising out of SLP(C) No.13844 of 2013]

SARJEET SINGH (D) TH. LRS.                     ….. APPELLANT(S)

      vs

HARI SINGH & ORS.                                     ….. RESPONDENT(S)


                             J  U D G M  E  N  T


VIKRAMAJIT SEN,J.

        Leave granted.

1       The  Appellants  essay  to  restore  the  concurrent  views  of  the
Additional Civil Judge (Senior Division) Rewari, in  Civil  Suit  No.308  of
1997 in terms of the Judgment  and  Decree  dated  27.8.2002,  as  also  the
Judgment and Decree dated  11.12.2008  passed  by  the  Additional  District
Judge, Rewari, in Civil Appeal No.50 of 2002.   Their  views,  however,  did
not find favour with the High Court in the impugned Judgment dated  7.9.2012
passed in Regular Second Appeal No.1346 of 2009.

2       The parties  are  shareholders  of  Shamilat  Patti  Sayar  of  land
comprised in Khewat No.300 Khatoni No.551, Khasra No.622(O-1O), Gair  Mumkin
Gatwar, situated in village Dahina, as per the jamabandi of the  year  1970-
71.  The Plaintiffs/Appellants filed a suit for declaration, and  possession
of the suit land against the Defendants/Respondents.  The  Plaint  does  not
contain a categorical stand as to whether the Defendants/Respondents are co-
sharers along with the Plaintiffs/Appellants in respect of  the  suit  land.
It has been pleaded that the Defendants have no concern whatsoever with  the
suit land which has not  been  validly  partitioned  among  the  co-sharers.
The Written Statement is also devoid of clarity inasmuch as  it  is  pleaded
that the Plaintiffs are not in possession of  the  suit  land  and  have  no
right to file the suit; but that constructions have been carried out by  the
Defendants in the presence of the  Plaintiffs,  as  well  as  other  persons
mentioned in Schedule A of the Plaint, which contains the names of  the  co-
sharers of the suit land.   It is then  pleaded  in  the  Written  Statement
that the suit land was allotted to Hardwari and Mangal and that their  legal
heirs  had  executed  an  oral  transfer  of  the  land  in  favour  of  the
Defendants, who became  co-sharers to the extent of 3/192  in  the  Shamilat
Patti  Sayar,  (obviously  along  with  other  co-sharers,   including   the
Plaintiffs).   The Defendants have also pleaded that the oral transfer  took
place in 1992 by exchanging the Defendants’ land  with  that  of  the  legal
heirs of Hardwari and Mangal.

3      Eight Issues were framed of which only the first  two,  the  onus  of
which was on the Plaintiffs, were addressed  in  the  evidence  led  by  the
parties.   Issue Nos.3 to 7 were to be proved by the Defendants  which  they
abandoned altogether.   Both Issues 1 & 2 were  decided  in  favour  of  the
Plaintiffs, i.e. the Appellants before us.     Keeping  in  perspective  the
evidence to the effect that the Plaintiffs were co-sharers in  the  Shamilat
Patti Sayar in regard to which the said Hardwari and Mangal had directly  no
right, nor were in possession thereof,  it  was  concluded  that  the  legal
heirs of Hardwari and Mangal had no legal  capacity  to  exchange  the  suit
land.   Even in the evidence led on behalf of the  Defendants,  it  was  the
admitted case that the suit land was in the ownership of Sayar Patti,  which
are akin to village  or  gram  sabha  lands  used  for  purposes  allied  to
cultivation, on which land revenue is not imposable, but other  levies  are.
It has also been conceded in the evidence led on behalf  of  the  Defendants
that the permission of  co-sharers  had  not  been  obtained  prior  to  the
alleged exchange of land.   After reviewing the entire evidence,  the  Trial
Court as well as the First Appellate Court rightly concluded on  facts  that
the possession of the Defendants was not lawful.   However, their  direction
that the Plaintiffs were entitled to take back the possession, it  seems  to
us, is legally untenable and unsustainable.

4      In the impugned Judgment the High Court has duly noted the fact  that
the  Defendants’  stand  that  they  were  co-sharers  ought  to  have  been
established by them consequent upon an Issue being struck  in  that  regard.
 Significantly, it was emphasised that the list of  co-sharers  attached  to
the Plaint included the Plaintiffs as  well  as  the  Defendants  and  that,
therefore, a suit for partition ought to have been filed by  the  Plaintiffs
even in the face  of  the  averments  in  the  Written  Statement  that  the
Defendants had a 3/192 share.   Confronted with the concurrent  findings  of
the Trial Court as  well  as  the  First  Appellate  Court  and  keeping  in
perspective the  evidence  that  was  recorded,  the  High  Court  framed  a
substantial question of law to the effect that since the Defendants were co-
sharers, could possession of the land be ordered  to  be  delivered  to  the
Plaintiffs without the Plaintiffs seeking  partition  of  the  entire  joint
land, including the  suit  land.    Regrettably,  while  setting  aside  the
judgment and decree of the Courts  below,  the  High  Court  has  failed  to
substantiate it with reasons for doing so.    The High Court  has,  however,
granted liberty to the Plaintiffs to seek partition of  the  suit  land  and
other joint land in accordance with law.

5      Abadi deh refers to cultivable  lands  which  are  inhabited  by  the
villagers.   These areas, also called phirni, are usually demarcated on  the
revenue maps/sharja in red ink or lal dora, within which  a  departure  from
the prescription of strictly agricultural user is permitted. As it has  been
traditionally conceived of, it is only  the  cultivators  of  the  adjoining
agricultural lands, along with their family members,  who  are  expected  to
reside therein.  Lands within lal dora or phirni can be  used  for  purposes
related to agriculture, such as cattle-sheds and storage  halls  for  straw,
manure  and  waste  generated  in  the  village.  Other  user   is   legally
impermissible.   In  some  instances,  lal  dora  lands  are  more  or  less
converted into an ‘urbanised village’ where cultivation  of  the  contiguous
land has ceased so as to enable wider user.   As the resident population  of
the village increases, the demand or need  for  conversion  of  agricultural
land for residential purposes is achieved by  extending/increasing  the  lal
dora, hence the term ‘extended lal dora’.   In no event can land in the  lal
dora be converted to commercial user  or,  arguably,  even  for  residential
complexes housing persons totally unconnected with the  cultivation  of  the
contiguous lands.   This is essential for preserving cultivable rural  lands
for agricultural purposes.   It is a  legal  misnomer  that  merely  because
municipal law and building restrictions and  regulations  contained  therein
are not applicable to lal dora, any and every kind of  user  or  development
is permissible.   It is this fallacious understanding of the  law  that  has
led to the mushrooming of illegal land  development  within  the  lal  dora.
‘Shamilat’ connotes  commonality  of  possession,  in  contradistinction  to
ownership individually or severally.    Shamilat deh are common  or  village
lands.  Banjar in common parlance means fallow  or  barren  or  unproductive
hence shamilat banjar  –  common  uncultivable  lands  and  banjar  qadim  –
common/village lands  left  fallow  for  a  long  period.    Patti/Pati  has
various contextual connotations including a strip of land detached from  the
original village though dependent on it; it is a subdivision of land.    For
facility of reference Section  2(g)  of  the  Punjab  Village  Common  Lands
(Regulations) Act, 1961 as applicable to Haryana is extracted below:-
    2(g)     “Shamilat deh” includes -
(1)   Land described in  the  revenue  records  as Shamilat  deh or  Charand
excluding  abadi deh;
(2)   shamilat tikkas;
(3)   lands  described  in  the   revenue   records   as shamilat,   tarafs,
pattis, pannas and tholas and used according  to  revenue  records  for  the
benefit or the village community or a part thereof or  for  common  purposes
of  the village;
(4)   lands used or reserved  for  the  benefit  of  the  village  community
including streets, lanes, playgrounds, schools,  drinking  wells,  or  ponds
within the sabha area as defined in clause (mmm) of Section 3 of the  Punjab
Gram Panchayat Act, 1952, excluding lands reserved for the  common  purposes
of a village under Section 18 of the  East  Punjab  Holdings  (Consolidation
and Prevention of Fragmentation) Act, 1948 (East Punjab  Act  50  of  1948),
the management and control whereof  vests  in  the  State  Government  under
Section 23-A of the aforesaid Act; and
(4a)  vacant land situate in abadi  deh  or  gorah  deh  not  owned  by  any
person;
(5)   lands in any village described as banjar  qadim and  used  for  common
purposes of the village according to revenue records;
Provided that shamilat deh at least to the extent of twenty-five per  centum
of the total area of the village does not exist in the village;
but does not include land which -
(i)   becomes or has become shamilat deh due to river  action  or  has  been
reserved as shamilat in villages subject to  river  action  except  shamilat
deh entered as pasture, pond or playground in the revenue records;
(ii)     has been allotted on quasi- permanent  basis to displaced person;
(iia) was shamilat  deh,  but  has  been  allotted  to  any  person  by  the
Rehabilitation Department of the State Government,  after  the  commencement
of this Act, but on or before the 9th day of July, 1985;

(iii)    has been partitioned and brought under  cultivation  by  individual
land-holders before the 26th January,1950;

(iv)    having been acquired before the 26th January, 1950, by a  person  by
purchase  or  in  exchange  for  proprietary  land  from  a   co-sharer   in
the shamilat deh and is so recorded in the jamabandi or is  supported  by  a
valid deed;
(v)     is described in the  revenue  records  as shamilat,  taraf,  pattis,
pannas and thola and not used according to revenue records for  the  benefit
to the village community or a part thereof or for  common  purposes  of  the
village;
(vi)   lies outside the abadi deh  and  was  being  used  as  gitwar,  bara,
manure  pit,  house  or  for  cottage  industry   immediately   before   the
commencement of this Act;
(vii) Omitted by Act No. 18 of 1995;
(viii)   was shamilat deh, was assessed to land revenue and has been in  the
individual cultivating possession of  co-sharers  not  being  in  excess  of
their respective shares in such shamilat deh on or before the  26th January,
1950; or
(ix)    is used as a place of worship or for purposes subservient thereto;
 lands reserved for the common purposes of a village  under  Section  18  of
the East Punjab Holdings (Consolidation  and  Prevention  of  Fragmentation)
Act, 1948 (East Punjab Act 50 of 1948), the management and  control  whereof
vests in the Gram Panchayat under Section 23-A of the aforesaid Act.

Explanation.- Lands entered in the column of ownership of record  of  rights
as ‘Jumla Malkan Wa Digar Haqdaran Arazi Hassab Rasad’,  ‘Jumla  Malkan’  or
‘Mushtarka Malkan’ shall be shamlat deh within the meaning of this section.

6      We shall now return to the facts of the case in hand.  The  jamabandi
relating to the subject land recites that the owner of the subject  land  is
Shamilat Patti.   Hardwari and Mangal were holding the land as  Gair  Marusi
having half share each in Gair Mumkin Gitwar Bila Lagan Bawajay Sayak  Keti,
which the Trial Court has rightly explained as land of which possession  has
been given by the proprietor, in the present case  the  Shamilat  Patti,  to
the two named persons for the specific  purpose  of  repairing  agricultural
implements.  Since the  allotment  is  intrinsically  in  the  nature  of  a
licence of common  village  land  for  a  particular  user,  it  is  legally
inconceivable that these two persons could have effected  an  oral  exchange
with the Defendants.  The ownership collectively vested at  all  times  with
the Gaon or Shamilat patti.   Ergo, none of  the  litigating  parties  could
assume ownership or exclusive  and  proprietary  possession  thereto.   Gair
Mumkin literally means that which  is  not  possible;  and  in  the  present
context indicates waste or uncultivable land.  Bila Lagan   connotes  either
rent-free grant or one where the  rent  has  not  been  fixed.   Sayar/Sayer
literally refers to moveables; it also concerns miscellaneous  levies  apart
from land revenue.      As defined in Ganga Devi  vs.  State  of  U.P.,  AIR
1972 SC 931, it “includes  whatever  has  to  be  paid  or  delivered  by  a
licencee on account of right of gathering produce, forest rights,  fisheries
and the use of water for irrigation from artificial sources”.      Sayar  or
Sayer are variable imposts on movable property and are  thus  distinct  from
land revenue.  Khasra  refers  to  the  ‘field  book’  or  village  register
recording the possession or tenure of  agricultural  land  and  the  cognate
term khasra girdawari is the crop or harvest  inspection  record  pertaining
to  the  land.    Khewat   lists   the   co-sharers   and   proprietors   of
village/agricultural lands along with their respective  liabilities  to  pay
the  land  revenue.   Khud-kasht  denotes  a  proprietor  of  land  who   is
cultivating it himself.

7      The Trial Court had decreed the suit,  holding  that  the  Plaintiffs
were entitled to the  possession  of  the  disputed  land.   It,  therefore,
directed the Defendants to handover the land in its original shape,  to  the
Plaintiffs and other Co-owners within  two  months  from  the  date  of  the
decision.   This finding has not  been  disturbed  by  the  First  Appellate
Court.  These two Courts failed to keep in mind that the land  was  Shamilat
deh and hence no person, including the Plaintiffs, could  have  laid  claims
to separate or individual possession thereof.    In second Appeal,  however,
in terms of the impugned Judgment, the High Court  has  correctly  dismissed
the Plaintiffs’ suit holding that the Plaintiffs  shall  be  at  liberty  to
seek partition of the suit land and other  joint  land  in  accordance  with
law.

8       Having considered  the  matter  in  all  its  complexities,  we  are
persuaded to uphold the directions of the  High  Court.   However,  this  is
primarily  and  principally  for  reasons  different  to  those  that   have
prevailed  upon  the  learned  Single  Judge.   The  land  in  question   is
admittedly Shamilat Patti Sayar, i.e.  common  village  lands  the  user  of
which is not confined strictly to cultivation.  The holding of Hardwari  and
Mangal is thus in contradistinction to that of  khewat  i.e.  proprietorship
of the land.  This is amply evident from the fact that so far as  the  grant
of  Hardwari  and  Mangal  is  concerned,  it  specifically  envisages   the
repairing of agricultural implements of the villagers  by  them.    Hardwari
and Mangal were legally incompetent to transfer  the  possession  by  mutual
compact with any third person, including co-sharers.   Shamilat deh  require
to be carefully and assiduously protected, and this is  the  avowed  purpose
of the Punjab Village Common Lands (Regulation) Act, 1961 as  applicable  to
both the States of Punjab and Haryana.  The three Courts below  have  failed
altogether in giving effect to Section 7 of the  said  Act  which  provides,
inter alia, that the Assistant Collector of First Grade alone can eject  any
person who is in wrongful and unauthorized possession of  the  shamilat  deh
of any village and instead put the Panchayat in  possession  thereof.    The
Proviso to sub-section 7(1) empowers  the  Assistant  Collector  (who  is  a
Revenue Official and not a Civil Court) to even decide a question  of  title
to the land if it happens to be raised.  Section 11 of  the  Act  thereafter
enables any person, or even  a  Panchayat,  to  approach  the  Collector  to
decide any claim in respect of the land.  It is evident from the reading  of
these provisions that  instead  of  approaching  the  Civil  Court,  if  the
Plaintiffs  had  any  grievance  against  the  Defendants  as  regards   the
possession of the suit land, they ought to have ventilated their  grievances
before the Collector and not before the  Civil  Court.   The  provisions  of
Sections 7 and 11 thereof have been blatantly  violated  by  the  Plaintiffs
and ignored by the Courts below.   If any doubt remains as  to  the  correct
forum for the resolution of the dispute pleaded in the  Plaint,  Section  13
of the Act makes it clear that the Civil  Courts  have  no  jurisdiction  to
entertain or adjudicate upon any question pertaining to shamilat deh.

9     It is always a brooding possibility that collusive suits are filed  by
co-sharers or other persons in  the  endeavour  that  shamilat  deh  may  be
metamorphosed or transformed into  privately  owned  lands,  always  to  the
detriment of the gram sabha and of the villagers  collectively.   The  three
Courts below have not been adequately alive to this very  important  aspect.
 The land in question was, in fact, licenced to the co-sharers and  was  not
their   privately   owned   properties,   individually   or   severally   or
collectively.

10        In the impugned judgment the High Court has  dismissed  the  suit.
It is manifestly  evident  that  the  suit  as  framed  and  filed  was  not
maintainable in view of the Punjab Village Common Lands  (Regulations)  Act,
1961 and, therefore, deserved to be dismissed.  We hold,  accordingly,  and,
therefore,  dismiss  this  Appeal,  leaving  the  parties  to   bear   their
respective costs.

…………………….…….J.
(DIPAK MISRA)



…………………………..J.
(VIKRAMAJIT SEN)
New Delhi
October 15, 2014

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