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Friday, January 16, 2015

CIVIL APPEAL NO. 346 OF 2015 (Arising out of S.L.P. (C) No. 1532 of 2014) JASMER SINGH ... APPELLANT VERSUS STATE OF HARYANA & ANR. ...RESPONDENTS

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 346 OF 2015
(Arising out of S.L.P. (C) No. 1532 of 2014)

JASMER SINGH ... APPELLANT

VERSUS

STATE OF HARYANA & ANR. ...RESPONDENTS

J U D G M E N T

V. GOPALA GOWDA, J.

Leave granted.

This appeal is filed by the workman, aggrieved by the impugned judgment and
order of the Punjab and Haryana High Court in L.P.A. No. 2245 of 2011 (O &
M) dated 19.09.2013 affirming the judgment and order of the learned Single
Judge dated 7.04.2010 passed in C.W.P. No. 9532 of 2001 by which Award
dated 27.07.2000 of the Industrial Tribunal-cum-Labour Court, Panipat, in
Reference No. 205 of 1997 is set aside, raising certain questions of law
and urging various legal grounds in support of the same.

In nutshell, facts are stated for the purpose of finding out whether the
impugned judgment and order of the Division Bench warrants interference by
this Court in this appeal.

The appellant-workman was working as daily paid worker in the office of Sub
Divisional Officer/Engineer, Provincial Division No. 3, PWD B & R Karnal
since 1.1.1993 and remained in service upto December, 1993. He had
completed more than 240 days of continuous service in one calendar year.
His services were terminated on 31.12.1993 without complying with the
mandatory provisions of Sections 25-F, 25-G and 25-H of the Industrial
Disputes Act, 1947 (hereinafter referred to as "the Act"). The respondent-
management neither issued notice nor notice pay nor retrenchment
compensation was given to him. The principle of 'last come first go' was
not followed as provided under Section 25G of the Act and the persons who
were juniors to him in service were retained. Therefore, he has raised an
industrial dispute under the provisions of the Act before the Conciliation
Officer requesting for setting aside the order of termination as the same
is void ab initio in law and sought an order for reinstatement with back
wages and other consequential benefits. As the workman's demand made in his
Notice dated 27.11.1996 was not complied with, the Conciliation Officer
submitted a failure report to the State Government of Haryana. The State
Government of Haryana in exercise of its statutory power under Section
10(1)(c) of the Act referred the industrial dispute to the Industrial
Tribunal-cum- Labour Court for adjudication as per the points of dispute.
The same was registered as Case Reference No. 205 of 1997 for adjudication
of the dispute.

The Industrial Tribunal-cum-Labour Court answered the points of dispute
referred to it. Both the parties filed their respective statements inter
alia justifying their demand and order of termination passed against the
workman. The respondent-management has taken preliminary objections
contending that Reference is bad in law as necessary parties are not
impleaded to the order of reference, namely, Sub Divisional Engineer,
Province Sub Division No.8, PWD (B & R) Karnal, the claim of the workman is
time barred and the provisions of the Act are not applicable to the
respondent-employer. Further, the appellant was employed on daily wages
muster roll by the Divisional Engineer, Provincial Sub-Division No. 8, PWD
(B & R), Karnal, in the month of January, 1993 and he left the job on his
own accord in August, 1993 and he has not completed 240 days in that Sub
Division. It was further pleaded by the respondent-employer that some other
daily wage workmen who were working along with him in August, 1993
continued to work in September, 1993 as well and if the workman attended
the duty in September, 1993 there is no reason not to employ him along with
others. Further, it was pleaded that in October, 1993 the appellant went to
another Sub-Divisional Officer where some other work was going on and got
himself employed there afresh and worked up to December, 1993 in Sub-
division No.6 and again he left the job voluntarily during December, 1993
and therefore, termination order was not passed by respondent-employer. The
number of working days of the workman as given in the written statement
that he did not complete 240 days in any calendar year and as such, the
provisions of Section 25-F clauses (a) & (b) of the Act were not required
to be complied with. To the said written statement, a reply statement was
filed by the workman.

On the basis of the pleadings made on behalf of the parties, five Issues
were framed and the witness Mr. Vipin Sharma on behalf of the employer
along with the workman was examined by himself to prove their respective
cases. The workman produced Ex 6 WX - Muster Roll of September, 1993 to
prove his case that he worked for 240 days in a calendar year with the
respondent-employer and the Industrial Tribunal-cum-Labour Court on the
basis of pleadings and evidence on record has recorded the finding of fact
and answered the issues framed by it in the Award in favour of the workman
after proper appreciation of evidence on record. The Industrial Tribunal-
cum-Labour Court has recorded the finding of fact on issue No. 1 after
adverting to the evidence of the workman-WW1, who has stated in his
statement of evidence that he had been appointed in the respondent-
management on monthly pay of Rs.1240/-.

He has further stated that he has worked up to 31.12.1993 and showed that
he has worked for more than 310 days both in Sub Division Nos. 8 and 6. He
has produced the Muster Roll in support of his contention and further
stated that the Executive Engineer of both the Sub Divisions is same. He
has further stated that while terminating his service, neither notice nor
notice pay in lieu of notice or retrenchment compensation was given to him.
He has further produced the photocopy of the Muster Roll Exh. WX showing
that he worked for 22 days during the month of September, 1993. Therefore,
the total number of days worked in a calendar year, as indicated in the
written statement filed by the respondent-employer at para 2, if taken into
consideration then it will be more than 240 days the workman has worked in
the establishment of the respondent-employer. The genuineness of the
document is not questioned by the respondent's counsel in the cross-
examination of WW-1, therefore, the same is accepted and held that the
workman has worked for more than 240 days during a calendar year preceding
the date of his termination from the services. Undisputedly, retrenchment
compensation was not given by the respondent-employer to the appellant
contending that he is not entitled for the same, as he has not worked for
240 days, and therefore, the question of giving retrenchment compensation
does not arise. The Industrial Tribunal-cum-Labour Court has also
considered the evidence of MW 1 - Vipin Sharma, SDO, who had stated in his
evidence that the appellant-workman had worked in their Sub-Division No. 8
from January, 1993 to August, 1993 and had left the work in the month of
September, 1993. He further stated that from October, 1993 to December,
1993 he had worked in some other Division, which does not fall in the
National Highway Division. To this effect, no documentary evidence is
produced. On the other hand, the evidence produced by him proves that he
has worked during the month of September, 1993 with the respondent-employer
which would clearly go to show that he has worked for more than 240 days in
the Sub Division and further, the said witness of the respondent-employer
has stated that administrative control of Sub Division No. 6 and Sub
Division No. 8 is under the different Executive Engineer. He further stated
that construction of National Highways and its maintenance work is given by
the Ministry of Surface of India. After adverting to the said evidence of
MW-1 and the plea taken by the respondent-employer in the written statement
that the appellant-workman has left the job voluntarily, therefore, he is
not entitled for the benefit of Section 25-F clauses (a) and (b) of the
Act, is rightly rejected by the Industrial Tribunal-cum-Labour Court after
placing reliance upon Civil Writ Petition No. 2375 of 1997 titled "Rajpati
vs. HUDA" in which the High Court has observed that Executive Engineer is
the appointing and terminating authority of the workmen in both the Sub-
Divisions. Therefore, the Industrial Tribunal-cum-Labour Court has rightly
recorded a finding of fact on the basis of evidence on record stating that
the contention urged on behalf of the respondent-employer that the workman
has worked in two different Sub Divisions is immaterial for the reason that
the XEN of both the Sub Divisions is the same. Therefore, the issue No.1 is
rightly decided in favour of the appellant-workman and against the
respondent-employer.

Further, the evidence of Executive Engineer is considered, who deposed in
his evidence that he has worked as Sewadar with the respondent-employer
from January, 1993 to December, 1993 and total number of working days in a
calendar year are shown as 310, the said evidence was considered with
reference to the Muster Roll Exbs M-1 to M-8 produced by the respondent-
employer and its written statement, wherein the respondent-employer has
categorically stated that in Sub Division No. 8 Karnal, the workman has
worked for 231 days and in view of the Muster Roll for the month of
September, 1993, which is tendered by the workman as Exb. WX, who has
worked for 22 days during that month, therefore, the total number of
working days in Sub Division No. 8 for the period from January, 1993 to
September, 1993 and sub-Division No.6 would be 253 days. As the total
number of working days are more than 240 days, therefore, the documentary
evidence produced by the workman is rightly relied upon by the Labour Court
and that the workman has rendered more than 240 days' service in the
establishment of the respondent is established. Hence, it has further held
that the non-compliance of the provisions of Section 25-F clauses (a) and
(b) of the Act i.e. issuance of neither notice nor notice pay and payment
of retrenchment compensation to the appellant are not complied with,
therefore, the labour court has correctly held that the termination of the
services of the workman is illegal and accordingly, the issue No. 1 is
answered in favour of the workman and against the respondent-employer.

On issue No. 3, after adverting to the case of State of Punjab v. Kalidass
and Anr. in C.W.P. No. 1742 of 1996, wherein the High Court has observed
that the workman cannot be allowed to approach the Labour Court after 3
years of termination of his services, upon which reliance placed by the
respondent-employer with reference to the said plea the Labour Court has
rightly placed reliance upon the judgment of this Court in Ajaib Singh v.
Sirhind Co-operative Marketing-cum-Processing Service Society Ltd. and
Anr.[1] in which it is observed by this Court that there is no period of
limitation to the proceedings in the Act. Accordingly, Issue No. 3 is
answered against the respondent-management. The relevant paragraph from
Ajaib Singh's case (supra) are extracted herein below:
"10. It follows, therefore, that the provisions of Article 137 of the
Schedule to Limitation Act, 1963 are not applicable to the proceedings
under the act and that the relief under it cannot be denied to the workman
merely on the ground of delay. The plea of delay if raised by the employer
is required to be proved as a matter of fact by showing the real prejudice
and not as a merely hypothetical defence. No reference to the labour court
can be generally questioned on the ground of delay alone. Even in a case
where the delay in shown to be existing, the tribunal, labour court or
board, dealing with the case can appropriately mould the relief by
declining to grant back wages to the workman till the date he raised the
demand regarding his illegal retrenchment/ termination or dismissal. The
Court may also in appropriate cases direct the payment of part of the back
wages instead of full back wages....."

On issue No. 4, after adverting to the judgment of the High Court in the
case of State of Punjab v. Hari Dass[2], in which it is held that the
Public Works Department (B & R) is an industry and accordingly the said
issue was also answered against the respondent-management.

Eventually, the Industrial Tribunal-cum-Labour Court has rightly set aside
the order of termination passed against the workman and awarded
reinstatement in his job with continuity of service and full back wages to
him.

The said Award is challenged by the respondent-employer in Civil Writ
Petition No. 9532 of 2001 urging untenable contentions. In the said writ
petition, the High Court exercised its jurisdiction contrary to the
judgment of this Court in the case of Syed Yakoob v. K.S. Radhakrishnan &
Ors.[3] and also the judgment, which was referred to in the case of
Harjinder Singh v. Punjab State Warehousing Corporation[4]. The learned
counsel for the appellant has aptly placed reliance upon another judgment
of Anoop Sharma v. Executive Engineer, Public Health Division No.1,
Panipat (Haryana)[5] in support of her legal submissions that both the
learned Single Judge and the Division Bench of the High Court have erred in
exercising their supervisory power under Article 227 of the Constitution of
India in setting aside the finding of fact recorded on the facts based on
the pleadings and evidence on record.

Further in the case of Harjinder Singh v. Punjab State Warehousing
Corporation (supra), wherein this Court opined on the exercise of power by
the High Court under Article 227 of the Constitution of India as under:-

"21. Before concluding, we consider it necessary to observe that while
exercising jurisdiction under Articles 226 and/or 227 of the Constitution
in matters like the present one, the High Courts are duty bound to keep in
mind that the Industrial Disputes Act and other similar legislative
instruments are social welfare legislations and the same are required to be
interpreted keeping in view the goals set out in the preamble of the
Constitution and the provisions contained in Part IV thereof in general and
Articles 38, 39(a) to (e), 43 and 43A in particular, which mandate that the
State should secure a social order for the promotion of welfare of the
people, ensure equality between men and women and equitable distribution of
material resources of the community to sub-serve the common good and also
ensure that the workers get their dues. More than 41 years ago,
Gajendragadkar, J, opined that:-
"the concept of social and economic justice is a living concept of
revolutionary import; it gives sustenance to the rule of law and meaning
and significance to the ideal of welfare State" - State of Mysore v.
Workers of Gold Mines AIR 1958 SC 923."

13. In view of the aforesaid statement of law the setting aside of the
Award by the learned Single Judge which is affirmed by the Division Bench
is vitiated in law as the same is contrary to the judgments of this Court
referred to supra, upon which the learned counsel for the appellant has
rightly placed reliance in support of the correctness of the finding
recorded by the labour court on the various issues, particularly the
finding of fact that the workman has worked for more than 240 days in a
calendar year and termination order is void ab initio in law for non-
compliance of Sections 25-F (clauses (a) and (b)), 25-G and 25-H of the
Act, therefore, the Industrial Tribunal-cum-Labour Court has rightly set
aside the order of termination of services of the workman and awarded the
order of reinstatement with continuity of service and full back wages. The
said relief in favour of the appellant-workman, particularly the full back
wages is supported by the legal principles laid down by this Court in the
case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.
ED.) & Ors.[6], wherein the Division Bench of this Court to which one of us
was a member, after considering three-Judge Bench decision, has held that
if the order of termination is void ab initio, the workman is entitled to
full back wages. The relevant para of the decision is extracted hereunder:-

"22. The very idea of restoring an employee to the position which he held
before dismissal or removal or termination of service implies that the
employee will be put in the same position in which he would have been but
for the illegal action taken by the employer. The injury suffered by a
person, who is dismissed or removed or is otherwise terminated from service
cannot easily be measured in terms of money. With the passing of an order
which has the effect of severing the employer employee relationship, the
latter's source of income gets dried up. Not only the concerned employee,
but his entire family suffers grave adversities. They are deprived of the
source of sustenance. The children are deprived of nutritious food and all
opportunities of education and advancement in life. At times, the family
has to borrow from the relatives and other acquaintance to avoid
starvation. These sufferings continue till the competent adjudicatory forum
decides on the legality of the action taken by the employer. The
reinstatement of such an employee, which is preceded by a finding of the
competent judicial/quasi judicial body or Court that the action taken by
the employer is ultra vires the relevant statutory provisions or the
principles of natural justice, entitles the employee to claim full back
wages. If the employer wants to deny back wages to the employee or contest
his entitlement to get consequential benefits, then it is for him/her to
specifically plead and prove that during the intervening period the
employee was gainfully employed and was getting the same emoluments. Denial
of back wages to an employee, who has suffered due to an illegal act of the
employer would amount to indirectly punishing the concerned employee and
rewarding the employer by relieving him of the obligation to pay back wages
including the emoluments."

In the circumstances, the appeal is allowed, the judgment & order
passed by the learned Single Judge in C.W.P. No. 9532/2001 which is
affirmed by the Division Bench of the High Court in L.P.A. No. 2245/2011 in
its judgment and order are set aside and the Award of the Industrial
Tribunal-cum-Labour Court is restored. The respondent-employer is directed
to comply with the Award within six weeks from the date of receipt of a
copy of this order and send a report to this Court. The appeal is allowed
with cost of Rs.25,000/- payable to the appellant-workman by the respondent
employer.

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

...............................................................J.
[C.NAGAPPAN]

NEW DELHI,
JANUARY 13, 2015
-----------------------
[1] (1999) 6 SCC 82
[2] (1999) 2 RSJ 266
[3] (1964) 5 SCR 64
[4] (2010) 3 SCC 192
[5] (2010) 5 SCC 497
[6] (2013) 10 SCC 324

CIVIL APPEAL No. 324 OF 2015 (ARISING OUT OF SLP(C) No.14024/2013) Shasidhar & Others Appellant(s) VERSUS Smt. Ashwini Uma Mathad & Anr. Respondent(s)

Reportable

IN THE SUPREME COURT OF INDIA
CIVIL APPELALTE JURISDICTION

CIVIL APPEAL No. 324 OF 2015
(ARISING OUT OF SLP(C) No.14024/2013)

Shasidhar & Others Appellant(s)

VERSUS

Smt. Ashwini Uma Mathad & Anr. Respondent(s)

J U D G M E N T

Abhay Manohar Sapre, J.
1. Leave granted.
2. This appeal is filed by the defendants against the judgment and order
dated 06.12.2012 passed by the Division Bench of the High Court of
Karnataka Circuit Bench at Dharwad in Regular First Appeal No. 3052 of
2010, which in turn arises out of the judgment and decree dated 10.02.2010
passed by the Ist Additional Civil Judge (Sr. Division) at Hubli in
Original Suit No. 73 of 2004.
3. In order to appreciate the short issue involved in this appeal, it is
necessary to state a few relevant facts:
4. One Basavantayya Revanayya Mathad was married to Shantakka Mathad
(defendant no. 2). Out of this wedlock, three children were born - one son
Shashidhar (defendant no.1) and two daughters - Rajeshwari (Died in 2003)
and - Gayatri (Died in 2004) - defendant no.3. Shashidhar was married to
Uma and out of this wedlock, three daughters were born - Ashwini (plaintiff
no. 1), Nivedita (plaintiff no.2) and Puja who was given in adoption to
Uma's sister. Shashidhar divorced to Uma and re-married to Manjula
(defendant no.4). Out of this second marriage, two daughters were born -
Aishwarya (defendant no.5) and Vaishnavi (defendant no.6).
5. Basavantayya had extensive properties. On 21.07.1991, Basavantayya
died leaving behind him the aforementioned members of his family. On his
death and also on the death of his one unmarried daughter Rajeshwari,
disputes arose between his legal representatives regarding their respective
shares in the properties and also regarding ownership of some members of
his family in relation to certain properties standing in the name of
members of his family. The disputes unfortunately could not be settled
amicably which led to filing of civil suit by the daughters of defendant
No.1 from his first wife-Uma (deceased) against the other members of the
family, i.e., their father, step-mother and step-sisters for determination
of their respective shares, partition by meets and bounds and separate
possession in the suit properties held and possessed by the members of the
family of late Basavantayya . The defendants contested the civil suit by
denying the plaintiffs' claim. The trial Court framed issues. Parties
adduced evidence.
6. By judgment and decree dated 10.02.2010, the trial Court partly
decreed the plaintiffs' suit and accordingly passed preliminary decree in
relation to the suit properties. It was held that plaintiffs are entitled
for partition and separate possession of their 1/6th share each in some
properties specified in the decree whereas 1/10th share each in other suit
properties as specified in the decree.
7. Dissatisfied with the preliminary decree, the defendants filed first
appeal being R.F.A. No. 3052 of 2010 and the plaintiffs filed cross
objections being R.F.A. CROB No. 103 of 2011 under Order XLI Rule 22 of the
Civil Procedure Code, 1908 (in short "the Code"). This is how the entire
preliminary decree became the subject-matter of first appeal filed by the
defendants.
8. By impugned judgment and order dated 06.12.2012, the Division Bench
of the High Court disposed of the appeal and cross objections and modified
the judgment and decree of the trial court to the detriment of the
defendants. It is against this judgment and order, the defendants have
filed this appeal by way of special leave.
9. Learned Counsel for the appellants, while assailing the legality and
correctness of the impugned judgment, contended that the High Court without
adverting to all the factual details and various grounds raised in the
first appeal, disposed of the same in a cryptic manner. According to
learned counsel, the High Court neither dealt with any issue nor
appreciated the ocular and documentary evidence adduced by the parties nor
examined the legal principles applicable to the issues arising in the case
and nor rendered its findings on any contentious issues though urged by the
appellants herein in support of the appeal. Learned counsel further
contended that it was the duty of the High Court being the first appellate
Court exercising its appellate power under Section 96 read with Order XLI
Rule 31 of the Code to have dealt with the submissions, which were urged
by the appellants after appreciating the entire evidence on facts,
independent of the findings recorded by the trial Court and should have
come to its own conclusion keeping in view the legal principles governing
the issues and since it was not done by the High Court, the impugned
judgment is not legally sustainable. Lastly, the learned counsel urged that
in case his arguments are accepted, the remand of the case to the High
Court to decide the appeal on merits afresh is inevitable.
10. In contra, learned counsel for the respondents (plaintiffs)
vehemently urged that no interference in the impugned judgment is called
for because firstly, the first appellate Court rendered the judgment on the
appellants' concession and hence, it was not necessary for the High Court
to record any elaborate finding on any of the issues; secondly, the suit is
pending since two decades with no end and lastly, the determination of the
shares of the suit properties made by the High Court, if examined on merits
by this Court, would be found to be in accordance with law.
11. Having heard learned counsel for the parties and on perusal of the
record of the case and examining the issue arising in this appeal, we find
force in the submissions of the learned counsel for the appellants.
12. The powers of the first appellate Court, while deciding the first
appeal under Section 96 read with Order XLI Rule 31 of the Code, are indeed
well defined by various judicial pronouncements of this Court and are,
therefore, no more res integra.
13. As far back in 1969, the learned Judge - V.R. Krishna Iyer, J (as His
Lordship then was the judge of Kerala High Court) while deciding the first
appeal under Section 96 of the CPC in Kurian Chacko vs. Varkey Ouseph, AIR
1969 Kerala 316, reminded the first appellate Court of its duty as to how
the first appeal under Section 96 should be decided. In his distinctive
style of writing and subtle power of expression, the learned judge held as
under:
"1. The plaintiff, unsuccessful in two Courts, has come up here aggrieved
by the dismissal of his suit which was one for declaration of title and
recovery of possession. The defendant disputed the plaintiff's title to the
property as also his possession and claimed both in himself. The learned
Munsif, who tried the suit, recorded findings against the plaintiff both on
title and possession. But, in appeal, the learned Subordinate Judge
disposed of the whole matter glibly and briefly, in a few sentences.
2. An appellate court is the final Court of fact ordinarily and therefore a
litigant is entitled to a full and fair and independent consideration of
the evidence at the appellate stage. Anything less than this is unjust to
him and I have no doubt that in the present case the learned Subordinate
Judge has fallen far short of what is expected of him as an appellate
Court. Although there is furious contest between the counsel for the
appellant and for the respondent, they appear to agree with me in this
observation....."
(Emphasis supplied)

14. This Court in a number of cases while affirming and then reiterating
the aforesaid principle has laid down the scope and powers of the first
appellate Court under Section 96 of the Code.
15. We consider it apposite to refer to some of the decisions.
16. In Santosh Hazari vs. Purushottam Tiwari (Deceased) by L.Rs. (2001)
3 SCC 179, this Court held (at pages 188-189) as under:
".........the appellate court has jurisdiction to reverse or affirm the
findings of the trial court. First appeal is a valuable right of the
parties and unless restricted by law, the whole case is therein open for
rehearing both on questions of fact and law. The judgment of the appellate
court must, therefore, reflect its conscious application of mind and record
findings supported by reasons, on all the issues arising along with the
contentions put forth, and pressed by the parties for decision of the
appellate court......while reversing a finding of fact the appellate court
must come into close quarters with the reasoning assigned by the trial
court and then assign its own reasons for arriving at a different finding.
This would satisfy the court hearing a further appeal that the first
appellate court had discharged the duty expected of it............"

17. The above view has been followed by a three-Judge Bench decision of
this Court in Madhukar & Ors. v. Sangram & Ors.,(2001) 4 SCC 756, wherein
it was reiterated that sitting as a court of first appeal, it is the duty
of the High Court to deal with all the issues and the evidence led by the
parties before recording its findings.
18. In H.K.N. Swami v. Irshad Basith,(2005) 10 SCC 243, this Court (at p.
244) stated as under:
"3. The first appeal has to be decided on facts as well as on law. In the
first appeal parties have the right to be heard both on questions of law as
also on facts and the first appellate court is required to address itself
to all issues and decide the case by giving reasons. Unfortunately, the
High Court, in the present case has not recorded any finding either on
facts or on law. Sitting as the first appellate court it was the duty of
the High Court to deal with all the issues and the evidence led by the
parties before recording the finding regarding title."

19. Again in Jagannath v. Arulappa & Anr., (2005) 12 SCC 303, while
considering the scope of Section 96 of the Code this Court (at pp. 303-04)
observed as follows:
"2. A court of first appeal can reappreciate the entire evidence and come
to a different conclusion........."

20. Again in B.V Nagesh & Anr. vs. H.V. Sreenivasa Murthy, (2010) 13 SCC
530, this Court taking note of all the earlier judgments of this Court
reiterated the aforementioned principle with these words:
"3. How the regular first appeal is to be disposed of by the appellate
court/High Court has been considered by this Court in various decisions.
Order 41 CPC deals with appeals from original decrees. Among the various
rules, Rule 31 mandates that the judgment of the appellate court shall
state:
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief to
which the appellant is entitled.
4. The appellate court has jurisdiction to reverse or affirm the findings
of the trial court. The first appeal is a valuable right of the parties and
unless restricted by law, the whole case is therein open for rehearing both
on questions of fact and law. The judgment of the appellate court must,
therefore, reflect its conscious application of mind and record findings
supported by reasons, on all the issues arising along with the contentions
put forth, and pressed by the parties for decision of the appellate court.
Sitting as a court of first appeal, it was the duty of the High Court to
deal with all the issues and the evidence led by the parties before
recording its findings. The first appeal is a valuable right and the
parties have a right to be heard both on questions of law and on facts and
the judgment in the first appeal must address itself to all the issues of
law and fact and decide it by giving reasons in support of the findings.
(Vide Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179 at p. 188,
para 15 and Madhukar v. Sangram, (2001) 4 SCC 756 at p. 758, para 5.)
5. In view of the above salutary principles, on going through the impugned
judgment, we feel that the High Court has failed to discharge the
obligation placed on it as a first appellate court. In our view, the
judgment under appeal is cryptic and none of the relevant aspects have even
been noticed. The appeal has been decided in an unsatisfactory manner. Our
careful perusal of the judgment in the regular first appeal shows that it
falls short of considerations which are expected from the court of first
appeal. Accordingly, without going into the merits of the claim of both
parties, we set aside the impugned judgment and decree of the High Court
and remand the regular first appeal to the High Court for its fresh
disposal in accordance with law."

21. The aforementioned cases were relied upon by this Court while
reiterating the same principle in State Bank of India & Anr. vs. Emmsons
International Ltd. & Anr., (2011) 12 SCC 174. This Court has recently
taken the same view on similar facts arising in Vinod Kumar vs. Gangadhar,
2014(12) Scale 171.
22. Applying the aforesaid principle to the facts of the case, we find
that the High Court while deciding the first appeal failed to keep the
aforesaid principle in consideration and rendered the impugned decision.
Indeed, it is clear by mere reading of the impugned order quoted below:
"The appellants are defendants in the suit. The plaintiffs are the
respondents. The respondents are the children of 1st appellant born in the
wedlock between 1st appellant and his divorced wife Smt. Uma Mathad. It is
admitted fact that the 1st appellant has married the 2nd respondent after
the divorce and in the wedlock he has two children and they are appellant
Nos.3 and 4. The suit properties at item Nos.1 and 4 are admitted to be
the ancestral properties. Item Nos.2 and 3 are the properties belonging to
the mother of the 1st appellant and after her demise the said properties
are bequeathed to 1st appellant. Therefore, the said properties acquired
the status of self-acquired properties.

The respondents filed a suit for partition. The parties are governed by
Bombay School of Hindu Law. In view of the provisions of Hindu Succession
Amendment Act of 2005, the respondent Nos. 1 and 2 are entitled to a share
as co-parceners in the ancestral properties. The wife who is the second
appellant also would be entitled to a share in the partition. In that
view, the appellant Nos. 1 and 2 and respondent Nos.1 and 2 will have 1/4th
share each in item Nos.1 and 4 of the suit properties.

The learned counsel for the appellants submitted that the appellants 2 to 4
would not claim any independent share in item Nos.1 and 4 of the suit
properties, but they would take share in the 1/4th share allotted to their
father.

In view of the said submissions, the appellant Nos.1 and 2 and respondent
Nos.1 and 2 would be entitled to 1/4th share in item Nos.1 and 4 of the
suit properties.

Accordingly, a preliminary decree to be drawn and the appeal and cross
objections are disposed of in the terms indicated above."

23. In our considered opinion, the High Court did not deal with any of
the submissions urged by the appellants and/or respondents nor it took note
of the grounds taken by the appellants in grounds of appeal nor took note
of cross objections filed by plaintiffs under Order XLI Rule 22 of the Code
and nor made any attempt to appreciate the evidence adduced by the parties
in the light of the settled legal principles and decided case laws
applicable to the issues arising in the case with a view to find out as to
whether the judgment of the trial Court can be sustained or not and if so,
how, and if not, why?
24. We may consider it apposite to state being a well settled principle
of law that in a suit filed by a co-sharerer, coparcener, co-owner or joint
owner, as the case may be, for partition and separate possession of his/her
share qua others, it is necessary for the Court to examine, in the first
instance, the nature and character of the properties in suit such as who
was the original owner of the suit properties, how and by which source
he/she acquired such properties, whether it was his/her self-acquired
property or ancestral property, or joint property or coparcenery property
in his/her hand and, if so, who are/were the coparceners or joint owners
with him/her as the case may be. Secondly, how the devolution of his/her
interest in the property took place consequent upon his/her death on
surviving members of the family and in what proportion, whether he/she died
intestate or left behind any testamentary succession in favour of any
family member or outsider to inherit his/her share in properties and if so,
its effect. Thirdly whether the properties in suit are capable of being
partitioned effectively and if so, in what manner? Lastly, whether all
properties are included in the suit and all co-sharerers, coparceners, co-
owners or joint-owners, as the case may be, are made parties to the suit?
These issues, being material for proper disposal of the partition suit,
have to be answered by the Court on the basis of family tree, inter se
relations of family members, evidence adduced and the principles of law
applicable to the case. (see "Hindu Law" by Mulla 17th Edition, Chapter XVI
Partition and Reunion - Mitakshara Law pages 493-547).
25. Being the first appellate Court, it was, therefore, the duty of the
High Court to decide the first appeal keeping in view the scope and powers
conferred on it under Section 96 read with Order XLI Rule 31 of the Code
mentioned above. It was unfortunately not done, thereby, causing prejudice
to the appellants whose valuable right to prosecute the first appeal on
facts and law was adversely affected which, in turn, deprived them of a
hearing in the appeal in accordance with law.
26. We are not inclined to accept the submission of the learned counsel
for the respondents when he urged that the impugned judgment is based on
concession given by the appellants and hence no discussion on merits on any
of the issues was called for. In the first place, the appellants did not
make any application for settlement of the dispute in relation to any of
the suit property in writing and secondly, there is nothing on record to
show that the appellants wanted to give up their claim or/and wished to
settle the matter in relation to some properties. In the light of this, we
are of the view that the High Court ought to have gone into the merits of
the claim of the respective parties in its proper perspective and then
recorded a finding regarding extent of shares received by each
coparcener/co-owner keeping in view the nature of properties such as
whether it was self acquired property or ancestral property and, if so, in
whose hands, its source of acquisition by such person, the manner of
devolution on the legal representatives of such person etc. As observed
supra, these findings were required to be recorded after appreciating the
evidence keeping in view the provisions of the Hindu Succession Act and
other related laws applicable to the issues arising in the case.
27. It is for these reasons, we are unable to uphold the impugned
judgment of the High Court.
28. The appeal thus succeeds and is, accordingly, allowed. The impugned
judgment is set aside and the case is remanded to the High Court for
deciding the first appeal and cross-objections afresh, keeping in view the
principle of law laid down by this Court as mentioned above.
29. However, we make it clear that we have not applied our mind to the
merits of the issues involved in the case and hence, the High Court would
decide the appeal strictly in accordance with law on merits uninfluenced by
any of our observations, which we have refrained from making on merits.
Needless to observe, the High Court will do so after affording an
opportunity of hearing to all the parties.
30. Since the case is quite old, we request the High Court to expedite
its hearing and dispose of the case preferably within six months.

.............................................................J.
[FAKKIR MOHAMED IBRAHIM KALIFULLA]

...............................................................J.
[ABHAY MANOHAR SAPRE]

New Delhi;
January 13, 2015.
-----------------------
20

Thursday, January 15, 2015

CIVIL APPEAL NO. 325-326 OF 2015 [Arising out of Special Leave Petition (Civil) Nos.5029-5030 of 2011] Jt. Collector Ranga Reddy Dist. & Anr. Etc. .. Appellants -vs- D. Narsing Rao & Ors. Etc. Etc. .. Respondents

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 325-326 OF 2015
[Arising out of Special Leave Petition (Civil) Nos.5029-5030 of 2011]

Jt. Collector Ranga Reddy Dist. &
Anr. Etc. .. Appellants

-vs-

D. Narsing Rao & Ors. Etc. Etc. .. Respondents

With

CIVIL APPEAL NO. 327 OF 2015
[Arising out of Special Leave Petition (Civil) No.5031 of 2011]

The Chairman,
Joint Action Committee of Employees
Teachers and Workers A.P. .. Appellant
-vs-

D. Narsing Rao & Ors. etc. etc .. Respondents

J U D G M E N T

C. NAGAPPAN, J.

Leave granted.

These appeals are directed against the common judgment dated 8.6.2010
passed in Writ Appeal No.273 and 323 of 2010 by the Division Bench of High
Court of Andhra Pradesh at Hyderabad.

Broadly speaking, the facts leading to filing of these appeals are as
follows: There is no dispute that Gopanpally village in Ranga Reddy
district was a Jagir village. According to the writ petitioners Survey
Nos.36 and 37 measuring Ac 280.00 guntas and Ac.378.14 guntas of the said
village were Jagir lands and Jagirdar had given Pattas to different persons
who were in possession of the lands and after abolition of Jagirs the same
were reflected as Pattas in Khasra Pahani for the year 1954-55 which was
prepared under Section 4(2) of the Andhra Pradesh (Telangana Area) Record
of Rights in land Regulation, 1358F and subsequently the Pattadars had
alienated the lands to the petitioners under registered sale deeds and
they are in possession of the same. It is their further case that Patta was
granted to an extent of Acre 44-00 in Survey No.36 and to an extent of
acre 46-00 in Survey No.37 and while the matter stood thus, the petitioners
on inquiry came to know that the Government has reserved and allotted a
total extent of 477 acres in Survey Nos.36 and 37 of Gopanpally village for
house sites to the Government employees by Government Orders dated
10.7.1991 and 24.9.1991, without mentioning the sub-division Nos. of the
survey numbers and the Patta lands of the petitioners are also sought to be
included within the area reserved and the petitioners challenged the same
by filing writ petition No.21719 of 1997 on the file of the High Court.
The writ petitioners have further stated that the Respondent No.1 at the
instance of Respondent No.2 had issued notice dated 19.12.2003 to the writ
petitioners and others stating that on verification of records i.e. namely
Faisal Patti for the year 1953-54 in respect of the land bearing Survey
Nos.36 and 37 of Gopanpally village there is no "Ain Izafa" (i.e.)
(implementation of changes) taken place in respect of the said land and the
entries in the Khasra Pahani appears to be incorporated by the then Patwari
without order from the competent authority and an enquiry under Section 9
of the Andhra Pradesh Rights in Land to Pattadar Passbooks Act, 1971, is
scheduled for hearing on 27.12.2003 and the writ petitioners challenged the
said notice by filing Writ Petition No.26987 of 2003 and the learned Single
Judge of the High Court allowed the said Writ Petition by order dated
30.8.2004 and set aside the impugned show cause notice. It is further
stated by the writ petitioners that the first respondent on the very same
basis issued subsequent notice dated 31.12.2004 for enquiry under Section
166B of Andhra Pradesh (Telangana Area) Land Revenue Act, 1317F fixing the
date of hearing on 5.2.2005 and the petitioners challenged the same in
their writ petition No.1731 of 2005 and the learned single Judge of the
High Court heard both the writ petitions i.e. 21719 of 1997 and 1731 of
2005 together.

The said writ petitions were resisted by the Government by stating that the
Jagirs were abolished on 15.8.1948 by the Andhra Pradesh (Telangana Area)
(Abolition of Jagirs) Regulation, 1358 fasli and the pre-existing rights in
all the Jagirs were taken away and as per the Khasra Pahani for the year
1954-55 the sub-divisions were made under Survey Nos.36 and 37 of the
village Gopanpally fraudulently by the Patwari and those sub-divisions and
names were not approved by Nizam Jamabandi in Faisal Patti during the year
1954-55 as per the procedure in vogue and the schedule land bearing survey
Nos. 36 and 37 from the time of Jagir abolition on 15.8.1948 is classified
as Chinna Kancha (grazing land) and it belongs to the Government and the
said unauthorized entries in Khasara Pahani made by the then Patwari were
detected by the Revenue Authorities and hence enquiry has been ordered
under Section 166B of Andhra Pradesh (Telangana Area) Land Revenue Act,
1317F and only a show cause notice has been issued.

The learned single Judge by common order dated 15.9.2009 set aside the
impugned Government order in GOMS No.850 dated 24.9.1991 insofar as the
lands held by the writ petitioners to the total extent of Acre 90-00 in
Survey Nos.36 and 37 are concerned and also set aside the impugned notice
dated 31.12.2004 and accordingly allowed the writ petitions. Aggrieved by
the same respondents 1 and 2 namely the Government preferred appeal in writ
Appeal Nos. 273 and 323 of 2010 and the Division Bench of the High Court
after hearing both sides dismissed both the writ appeals by common judgment
dated 8.6.2010. Challenging the same the State Government has preferred
the present appeals. Respondent No.13 in writ appeal 323 of 2010 has also
preferred an independent appeal before this Court and all the three appeals
are heard together.

Mr. Nageshwar Rao, learned Additional Solicitor General appearing for the
appellant State contended that the land was held by Jagirs as 'crown grant'
and it was not heritable and that the Jagir system was abolished on
15.8.1948 and the entire Jagir land by operation of law came to be vested
with the Government and as per the land Revenue records prepared under A.P.
(Telangana Area) Record of Rights in Land Regulation, 1358, Fasli for the
year 1950-52 the land comprised in survey Nos. 36 and 37 of Gopanpally
village was owned by the Government and it is classified as "grazing land
(Kancha China Sarkari non agriculture) and as per land revenue records
called faisal-patti for 1953-54, the said land continued to be "Government
grazing land". It is his further submission that for the first time in
August 1997 the Respondent Nos. 1-12 by filing Writ Petition No.21719 of
1997 claimed to have acquired right on 75 acre GTS in Survey Nos. 36 and
37 based on their predecessor name recorded in the Khasra Pahani of 1954-
55 whereas no sub-division of the Survey Nos.36 and 37 was ever carried out
and the land was allotted to employees co-operative societies as one
consolidated plot of land as shown in the Government records. According to
the appellants the names of the vendor of the respondents have been
recorded in the Khasra Pahani in the year 1954-55 surreptitiously by the
then Patwari without any order issued by the competent authority under the
relevant provisions of law and no right can be claimed merely on the basis
of the fraudulent entries.

It is his further contention that the High Court failed to appreciate that
the Government cannot be precluded from taking action to correct fraudulent
entries in the Khasra Pahani by citing long lapse of time and the dismissal
of the Writ Appeals is unsustainable in law. Mr. R. Venkataramni, learned
senior counsel appearing for the other appellant also assailed the impugned
order for the same reasons. In support of their submissions reliance was
placed on the following decisions of this Court.
In the decision in Collector and others vs. P. Mangamma and others
(2003) 4 SCC 488 this Court while dealing with suo motu action against
irregular assignments under the Andhra Pradesh Assigned Lands (Prohibition
of Transfers) Act, 1977 held that it would be hard to give an exact
definition of the word "reasonable" and a reasonable period would depend
upon the facts of the case concerned and on the facts of the case in which
the decision arose, suo motu action taken after a period of thirty years
was remitted to the High Court for fresh consideration.
In the decision in State of Maharashtra and another vs. Rattanlal
(1993) 3 SCC 326 this Court while dealing with revisional power under
Section 45 of Maharashtra Agricultural Land (Ceiling and Holdings)Act, 1961
held that suo motu revisional power may not be exercised after the expiry
of three years from the date of the impugned order, however, where
suppression of material facts, namely, existence of the undeclared
agricultural land had come to the knowledge of the higher authorities after
a long lapse of time, the limitation would start running only from the date
of discovery of the fraud or suppression.
In the decision in State of Orissa and others vs. Brundaban Sharma
and another (1995) Supp.(3) SCC 249 this Court while dealing with the power
of revision under Section 38-B of Orissa Estates Abolition Act, 1951 held
that the Board of Revenue exercised the power of revision 27 years after
the date of alleged grant of patta but its authenticity and correctness was
shrouded with suspicious features and, therefore, exercise of revisional
power was legal and valid.
We heard the submissions made by Mr. U.U. Lalit, Mr. Pravin H. Parekh, Mr.
Ranjit Kumar, Mr. P.V. Shetty, learned senior counsels and also the other
learned counsels appearing for the respondents. The main submissions of
the learned counsels appearing for the respondents are that the names of
the predecessors in title of the respondents are found mentioned in the
Khasra Pahani of the year 1954-55 and the purchase of the subject land by
the respondents from them under registered sale deeds are not in dispute
and they have been regularly paying land revenue continuously since the
year 1954 and substantial rights on account of continuous possession and
enjoyment of the subject property has been accrued to the respondents and
the exercise of suo-motu revisional power after long lapse of time is
arbitrary and summary remedy of enquiry and correction of records cannot be
invoked when there is bonafide dispute of title and liberty has been given
to the appellants to work out its remedies by way of filing civil suit and
the findings of the High Court are sustainable on facts and law. In
support of their submissions reliance was placed on the following decisions
of this Court.
In the decision in State of Gujarat vs. Patil Raghav Natha and others
(1969) 2 SCC 187 this Court while adverting to Sections 65 and 211 of the
Bombay Land Revenue Code, 1879 held that though there is no period of
limitation prescribed under Section 211 to revise an order made under
Section 65 of the Act, the said power must be exercised in reasonable time
and on the facts of the case in which the decision arose, the power came to
be exercised more than one year after the order and that was held to be too
late.
In the decision in Mohamad Kavi Mohamad Amin vs. Fatmabai Ibrahim
(1997) 6 SCC 71 this Court while dealing with Section 84-C of Bombay
Tenancy and Agricultural Lands Act, 1976 held that though the said Section
does not prescribe for any time limit for initiation of proceeding such
power should be exercised within a reasonable time and on the facts of the
case, the suo motu enquiry initiated under the said Section after a period
of nine months was held to be beyond reasonable time.
In the decision in Santoshkumar Shivgonda Patil and others vs.
Balasaheb Tukaram Shevale and others (2009) 9 SCC 352 this Court while
dealing with the power of revision under Section 257 of the Maharashtra
Land Revenue Code, 1966 held as follows :

"11. It seems to be fairly settled that if a statute does not prescribe the
time-limit for exercise of revisional power, it does not mean that such
power can be exercised at any time; rather it should be exercised within a
reasonable time. It is so because the law does not expect a settled thing
to be unsettled after a long lapse of time. Where the legislature does not
provide for any length of time within which the power of revision is to be
exercised by the authority, suo motu or otherwise, it is plain that
exercise of such power within reasonable time is inherent therein.

12. Ordinarily, the reasonable period within which the power of revision
may be exercised would be three years under Section 257 of the Maharashtra
Land Revenue Code subject, of course, to the exceptional circumstances in a
given case, but surely exercise of revisional power after a lapse of 17
years is not a reasonable time. Invocation of revisional power by the Sub-
Divisional Officer under Section 257 of the Maharashtra Land Revenue Code
is plainly an abuse of process in the facts and circumstances of the case
assuming that the order of the Tahsildar passed on 30-3-1976 is flawed and
legally not correct."

In the decision in State of Punjab and others vs. Bhatinda District
Cooperative Milk Producers Union Ltd. (2007) 11 SCC 363 this Court while
dealing with the revisional power under Section 21 of the Punjab General
Sales Tax Act, 1948 held thus :

"17. A bare reading of Section 21 of the Act would reveal that although no
period of limitation has been prescribed therefor, the same would not mean
that the suo motu power can be exercised at any time.
18. It is trite that if no period of limitation has been prescribed,
statutory authority must exercise its jurisdiction within a reasonable
period. What, however, shall be the reasonable period would depend upon the
nature of the statute, rights and liabilities thereunder and other relevant
factors.
19. Revisional jurisdiction, in our opinion, should ordinarily be exercised
within a period of three years having regard to the purport in terms of the
said Act. In any event, the same should not exceed the period of five
years................"

In the decision in Ibrahimpatnam Taluk Vyavasaya Coolie Sangham vs.
K. Suresh Reddy and others (2003) 7 SCC 667 this Court while dealing with
suo motu power of revision under Section 50-B(4) of the Andhra Pradesh
(Telangana Area) Tenancy and Agricultural Land Act, 1950 held as follows :

"9. ...............In the absence of necessary and sufficient particulars
pleaded as regards fraud and the date or period of discovery of fraud and
more so when the contention that the suo motu power could be exercised
within a reasonable period from the date of discovery of fraud was not
urged, the learned Single Judge as well as the Division Bench of the High
Court were right in not examining the question of fraud alleged to have
been committed by the non-official respondents. Use of the words "at any
time" in sub-section (4) of Section 50-B of the Act only indicates that no
specific period of limitation is prescribed within which the suo motu power
could be exercised reckoning or starting from a particular date advisedly
and contextually. Exercise of suo motu power depended on facts and
circumstances of each case. In cases of fraud, this power could be
exercised within a reasonable time from the date of detection or discovery
of fraud. While exercising such power, several factors need to be kept in
mind such as effect on the rights of the third parties over the immovable
property due to passage of considerable time, change of hands by subsequent
bona fide transfers, the orders attaining finality under the provisions of
other Acts (such as the Land Ceiling Act). Hence, it appears that without
stating from what date the period of limitation starts and within what
period the suo motu power is to be exercised, in sub-section (4) of Section
50-B of the Act, the words "at any time" are used so that the suo motu
power could be exercised within reasonable period from the date of
discovery of fraud depending on facts and circumstances of each case in the
context of the statute and nature of rights of the parties. Use of the
words "at any time" in sub-section (4) of Section 50-B of the Act cannot be
rigidly read letter by letter. It must be read and construed contextually
and reasonably. If one has to simply proceed on the basis of the dictionary
meaning of the words "at any time", the suo motu power under sub-section
(4) of Section 50-B of the Act could be exercised even after decades and
then it would lead to anomalous position leading to uncertainty and
complications seriously affecting the rights of the parties, that too, over
immovable properties. Orders attaining finality and certainty of the rights
of the parties accrued in the light of the orders passed must have
sanctity. Exercise of suo motu power "at any time" only means that no
specific period such as days, months or years are not prescribed reckoning
from a particular date. But that does not mean that "at any time" should be
unguided and arbitrary. In this view, "at any time" must be understood as
within a reasonable time depending on the facts and circumstances of each
case in the absence of prescribed period of limitation."

Consequent to the merger of Hyderabad State with India in 1948 the Jagirs
were abolished by the Andhra Pradesh (Telangana Area) Abolition of Jagirs
Regulation, 1358 fasli. 'Khasra Pahani' is the basic record of rights
prepared by the Board of Revenue Andhra Pradesh in the year 1954-55. It
was gazetted under Regulation 4 of the A.P. (Telangana Area) Record of
Rights in Land Regulation 1358F. As per Regulation No.13 any entry in the
said record of rights shall be presumed to be true until the contrary is
proved. The said Regulation of 1358-F was in vogue till it was repealed by
the A.P. Rights in Land and Pattadar Pass Books Act, 1971, which came into
force on 15.8.1978. In the 2nd edition (1997) of "The Law Lexicon" by P.
Ramanatha Aiyer (at page 1053) 'Khasra' is described as follows:
"Khasra is a register recording the incidents of a tenure and is a
historical record. Khasra would serve the purpose of a deed of title, when
there is no other title deed."

Admittedly, the names of the predecessors in title of the respondents are
found mentioned in the Khasra Pahani of the year 1954-55 pertaining to
Survey Nos.36 and 37 of Gopanpally village. The purchase of the said
lands by the respondents from them under registered sale deeds are also not
seriously disputed. The further fact is that they have been regularly
paying land revenue continuously since the year 1954. The appellants
herein issued the impugned notice dated 31.12.2004 under Section 166B of
A.P. (Telangana Area) Land Revenue Act,1317 F (1907) for cancellation of
entries in the Khasra Pahani of the year 1953-54, by fixing the date of
inquiry as 5.2.2005 and that notice is the subject matter of challenge
here.

Regulation 166B reads as follows:
"166-B. Revision:-
Subject to the provisions of the Andhra Pradesh (Telangana Area) Board of
Revenue Regulation, 1358 F, the Government or any Revenue officer not lower
in rank to a Collector the Settlement Commissioner of Land Records may call
for the record of a case or proceedings from a subordinate department and
inspect it in order to satisfy himself that the order or decision passed or
the proceedings taken is regular, legal and proper and may make suitable
order in that behalf;
Provided that no order or decision affecting the rights of the ryot shall
be modified or annulled unless the concerned parties are summoned and
heard.
(2) Every Revenue Officer lower in rank to a Collector or Settlement
Commissioner may call for the records of a case or proceedings for a
subordinate department and satisfy himself that the order or decision
passed or the proceedings taken is regular, legal and proper and if, in his
opinion, any order or decision or, proceedings should be modified or
annulled, he shall put up the file of the case and with his opinion to the
Collector or Settlement Commissioner as the case may be. Thereupon the
Collector or Settlement Commissioner may pass suitable order under the
provisions of sub-section (1).
(3) The original order or decision or an authentic copy of the original
order or decision sought to be revised shall be filed along with every
application for revision."

No time limit is prescribed in the above Regulation for the exercise of suo
motu power but the question is as to whether the suo motu power could be
exercised after a period of 50 years. The Government as early as in the
year 1991 passed order reserving 477 acres of land in Survey Nos. 36 and 37
of Gopanpally village for house-sites to the government employees. In
other words the Government had every occasion to verify the revenue
entries pertaining to the said lands while passing the Government Order
dated 24.9.1991 but no exception was taken to the entries found. Further
the respondents herein filed Writ Petition No.21719 of 1997 challenging the
Government order dated 24.9.1991 and even at that point of time no action
was initiated pertaining to the entries in the said survey numbers.
Thereafter, the purchasers of land from respondent Nos.1 and 2 herein filed
a civil suit in O.S.No.12 of 2001 on the file of Additional District
Judge, Ranga Reddy District praying for a declaration that they were lawful
owners and possessors of certain plots of land in survey No.36, and after
contest, the suit was decreed and said decree is allowed to become final.
By the impugned Notice dated 31.12.2004 the suo motu revision power under
Regulation 166B referred above is sought to be exercised after five decades
and if it is allowed to do so it would lead to anomalous position leading
to uncertainty and complications seriously affecting the rights of the
parties over immovable properties.

In the light of what is stated above we are of the view that the Division
Bench of the High Court was right in affirming the view of the learned
single Judge of the High Court that the suo motu revision undertaken after
a long lapse of time, even in the absence of any period of limitation was
arbitrary and opposed to the concept of rule of law.

Thus, we find no merit in these appeals. Consequently they are dismissed
with no order as to costs.

.................................J.
(C. Nagappan)
New Delhi;
January 13, 2015.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs. 325-326 OF 2015

(Arising out of S.L.P. (C) Nos.5029-5030 of 2011)

Jt. Collector Ranga Reddy District

& Anr. etc. ...Appellants

Versus

D. Narsing Rao & Ors. etc. etc. ...Respondents

WITH

CIVIL APPEAL NO. 327 OF 2015

(Arising out of S.L.P. (C) Nos.5031 of 2011)

The Chairman,

Joint Action Committee of Employees

Teachers and Workers A.P. ...Appellant

Versus

D. Narsing Rao & Ors. etc. etc. ...Respondents

J U D G M E N T

T.S. THAKUR, J.

1. I have had the privilege of reading the order proposed by my esteemed
Brother C. Nagappan, J. Though I entirely agree with the conclusion drawn
by His Lordship that revisional powers vested in the Joint Collector under
Section 166B of A.P. (Telangana Area) Land Revenue Act cannot be exercised
50 years after the making of the alleged fraudulent entries and that the
High Court was justified in quashing notice dated 31st December, 2004
issued to the respondents, I would like to add a few lines of my own.

2. The facts giving rise to the filing of the writ petitions and the
writ appeals before the High Court out of which arise the present appeals
have been set out at length by my esteemed Brother in the order proposed by
him. Narration of the factual matrix over again would, therefore, serve no
useful purpose. Suffice it to say that the dispute in these proceedings is
confined to an extent of 44 acres of land situate in Survey No.36 and 46
acres of land in Survey No.37 of Gopanpally village of Ranga Reddy district
in the state of Andhra Pradesh. The case of the respondents (writ
petitioners before the High Court) was that the said extent of land was
granted by the Jagirdar concerned on Patta to persons in actual cultivating
possession. The Patta was, according to the respondents, recongnised by the
Government, with the result that the names of the holders were shown in the
Khasra Phanis since the year 1954-55.

3. In terms of G.O.Ms 850 Rev. (Asn.III) Dept. dated 24th September,
1991 the Government appears to have allotted an extent of 477 acres of land
in Survey Nos. 36 and 37 of Gopanpally village for grant of house sites to
Government employees. This was followed by a notice dated 31st December,
2004 from the Joint Collector, Ranga Reddy District, whereunder the writ-
petitioners (respondents herein) were asked to appear on 5th February, 2005
to show cause why the Khasra Phani entries in respect of land comprising
Survey No.36 measuring 460.07 acres and Survey No.37 measuring 424.17 acres
situate in the village mentioned above should not be cancelled. Aggrieved
by the Government order and the show-cause notice Writ Petitions No.21719
of 1997 and 1731 of 2005 were filed before the High Court which were
disposed of by a learned Single Judge of the High Court of Andhra Pradesh
by his order dated 15th September, 2009. The High Court was of the view
that the entries in the Khasra Pahani for the year 1954-55 reflected the
names of the predecessors-in-title of the writ-petitioners although
according to the Government the said entries were made fraudulently by the
then Patwari of the village. The High Court further held that since the
entries showing ownership and possession of the writ-petitioners had
continued unchallenged for nearly 40 years before the Government issued
G.O.M.s 850 Rev. (Asn.III) Dept. dated 24th September, 1991 the Government
was not justified in making any allotment in disregard of the same. The
High Court also took the view that the proposed correction of the alleged
fraudulent entries nearly 50 years after the entries were first made was
also legally impermissible even when the revisional power being invoked to
do so did not prescribe any period of limitation. The High Court recorded
a finding that the predecessors-in-title of the writ-petitioners had
registered sale-deeds in their favour and that the State Government or its
officers had not denied that the writ-petitioners or their predecessors-in-
title had remained in possession of the subject land. The High Court held
that exercise of revisional powers, even where no period of limitation is
prescribed, must be within a reasonable period.

4. Aggrieved by the order passed by the High Court the appellants
preferred Writ Appeals No.273-323 of 2010 which were also dismissed by a
Division Bench of that Court in terms of its order dated 8th June, 2010.
The Division Bench relying upon the decisions of this Court in Santoshkumar
Shivgonda Patil and Anr. v. Balasaheb Tukaram Shevale (2009) 9 SCC 352 and
Special Director and Anr. v. Mohd. Ghulam Ghouse and Anr. (2004) 3 SCC 440
held that the proposed correction of the revenue entries 50 years after the
same were made was not legally permissible. The present appeals assail the
correctness of that view.

5. The writ-petitioners, as noted earlier, claim to have purchased an
extent of 90 acres of land in Survey Nos.36 and 37 from the erstwhile
Pattadars recorded in the revenue records. The present dispute is,
therefore, limited to that extent of land only. That being so, if the
notice invoking the revisional jurisdiction under Section 166B of A.P.
(Telangana Area) Land Revenue Act has been not assailed by any other
effected party, we should not be understood to be interfering with the same
qua such persons. Having said that the only question which the High Court
has addressed and which has been elaborately dealt with by it in the
impugned orders is whether revisional powers vested in the competent
authority under Section 166B of the Act aforementioned could be invoked 50
years after the alleged fraudulent entries were made. The contention urged
on behalf of the appellant primarily was that since there is no period of
limitation prescribed for invoking the revisional powers under the
provisions mentioned above, there should be no impediment in the exercise
of the same intervening delay notwithstanding. There is no error much less
any perversity in that view. The legal position is fairly well-settled by a
long line of decisions of this Court which have laid down that even when
there is no period of limitation prescribed for the exercise of any power
revisional or otherwise such power must be exercised within a reasonable
period. This is so even in cases where allegations of fraud have
necessitated the exercise of any corrective power. We may briefly refer to
some of the decisions only to bring home the point that the absence of a
stipulated period of limitation makes little or no difference in so far as
the exercise of the power is concerned which ought to be permissible only
when the power is invoked within a reasonable period.

6. In one of the earlier decisions of this Court in S.B. Gurbaksh Singh
v. Union of India 1976 (2) SCC 181, this Court held that excercise of suo
motu power of revision must also be within a reasonable time and that any
unreasonable delay in the exercise may affect the validity. But what would
constitute reasonable time would depend upon the facts of each case.

7. To the same effect is the decision of this Court in Ibrahimpatnam
Taluk Vyavasaya Coolie Sangham V. K. Suresh Reddy and Ors. (2003) 7 SCC 667
where this Court held that even in cases of fraud the revisional power must
be exercised within a reasonable period and that several factors need to be
kept in mind while deciding whether relief sooner be denied only on the
ground of delay. The Court said:

"In cases of fraud, this power could be exercised within a reasonable time
from the date of detection or discovery of fraud. While exercising such
power, several factors need to be kept in mind such as effect on the rights
of the third parties over the immovable property due to passage of
considerable time, change of hands by subsequent bona fide transfers, the
orders attaining finality under the provisions of other Acts (such as the
Land Ceiling Act)."

8. To the same effect is the view taken by this Court in Sulochana
Chandrakant Galande. v. Pune Municipal Transport and Others (2010) 8 SCC
467 where this Court reiterated the legal position and held that the power
to revise orders and proceedings cannot be exercised arbitrarily and
interminably. This Court observed:

"The legislature in its wisdom did not fix a time-limit for exercising the
revisional power nor inserted the words "at any time" in Section 34 of the
1976 Act. It does not mean that the legislature intended to leave the
orders passed under the Act open to variation for an indefinite period
inasmuch as it would have the effect of rendering title of the
holders/allottee(s) permanently precarious and in a state of perpetual
uncertainty. In case, it is assumed that the legislature has conferred an
everlasting and interminable power in point of time, the title over the
declared surplus land, in the hands of the State/allottee, would forever
remain virtually insecure. The Court has to construe the statutory
provision in a way which makes the provisions workable, advancing the
purpose and object of enactment of the statute".

9. In State of H.P. and Ors. v. Rajkumar Brijender Singh and Ors. (2004)
10 SCC this Court held that in the absence of any special circumstances a
delay of 15 years in suo motu exercise of revisional power was
impermissible as the delay was unduly long and unexplained. This Court
observed:

"We are now left with the second question which was raised by the
respondents before the High Court, namely, the delayed exercise of the
power under sub-section (3) of Section 20. As indicated above, the
Financial Commissioner exercised the power after 15 years of the order of
the Collector. It is true that sub-section (3) provides that such a power
may be exercised at any time but this expression does not mean there would
be no time-limit or it is in infinity. All that is meant is that such
powers should be exercised within a reasonable time. No fixed period of
limitation may be laid but unreasonable delay in exercise of the power
would tend to undo the things which have attained finality. It depends on
the facts and circumstances of each case as to what is the reasonable time
within which the power of suo motu action could be exercised. For example,
in this case, as the appeal had been withdrawn but the Financial
Commissioner had taken up the matter in exercise of his suo motu power, it
could well be open for the State to submit that the facts and circumstances
were such that it would be within reasonable time but as we have already
noted that the order of the Collector which has been interfered with was
passed in January 1976 and the appeal preferred by the State was also
withdrawn sometime in March 1976. The learned counsel for the appellant was
not able to point out such other special facts and [pic]circumstances by
reason of which it could be said that exercise of suo motu power after 15
years of the order interfered with was within a reasonable time. That being
the position in our view, the order of the Financial Commissioner stands
vitiated having been passed after a long lapse of 15 years of the order
which has been interfered with. Therefore, while holding that the Financial
Commissioner would have power to proceed suo motu in a suitable case even
though an appeal preferred before the lower appellate authority is
withdrawn, maybe, by the State. Thus the view taken by the High Court is
not sustainable. But the order of the Financial Commissioner suffers from
the vice of the exercise of the power after unreasonable lapse of time and
such delayed action on his part nullifies the order passed by him in
exercise of power under sub-section (3) of Section 20".

10. We may also refer to the decision of this Court in M/s Dehri Rohtas
Light Railway Company Ltd. V. District Board, Bhojpur and Ors. (1992) 2 SCC
598 where the Court explained the legal position as under:

"The rule which says that the Court may not enquire into belated and stale
claim is not a rule of law but a rule of practice based on sound and proper
exercise of discretion. Each case must depend upon its own [pic]facts. It
will all depend on what the breach of the fundamental right and the remedy
claimed are and how delay arose. The principle on which the relief to the
party on the grounds of laches or delay is denied is that the rights which
have accrued to others by reason of the delay in filing the petition should
not be allowed to be disturbed unless there is a reasonable explanation for
the delay. The real test to determine delay in such cases is that the
petitioner should come to the writ court before a parallel right is created
and that the lapse of time is not attributable to any laches or negligence.
The test is not as to physical running of time. Where the circumstances
justifying the conduct exist, the illegality which is manifest cannot be
sustained on the sole ground of laches. The decision in Tilokchand case
relied on is distinguishable on the facts of the present case. The levy if
based on the net profits of the railway undertaking was beyond the
authority and the illegal nature of the same has been questioned though
belatedly in the pending proceedings after the pronouncement of the High
Court in the matter relating to the subsequent years. That being the case,
the claim of the appellant cannot be turned down on the sole ground of
delay. We are of the opinion that the High Court was wrong in dismissing
the writ petition in limine and refusing to grant the relief sought for. We
however agree that the suit has been rightly dismissed".

11. To sum up, delayed exercise of revisional jurisdiction is frowned
upon because if actions or transactions were to remain forever open to
challenge, it will mean avoidable and endless uncertainty in human affairs,
which is not the policy of law. Because, even when there is no period of
limitation prescribed for exercise of such powers, the intervening delay,
may have led to creation of third party rights, that cannot be trampled by
a belated exercise of a discretionary power especially when no cogent
explanation for the delay is in sight. Rule of law it is said must run
closely with the rule of life. Even in cases where the orders sought to be
revised are fraudulent, the exercise of power must be within a reasonable
period of the discovery of fraud. Simply describing an act or transaction
to be fraudulent will not extend the time for its correction to infinity;
for otherwise the exercise of revisional power would itself be tantamount
to a fraud upon the statute that vests such power in an authority.

12. In the case at hand, while the entry sought to be corrected is
described as fraudulent, there is nothing in the notice impugned before the
High Court as to when was the alleged fraud discovered by the State. A
specific statement in that regard was essential for it was a jurisdictional
fact, which ought to be clearly asserted in the notice issued to the
respondents. The attempt of the appellant-State to demonstrate that the
notice was issued within a reasonable period of the discovery of the
alleged fraud is, therefore, futile. At any rate, when the Government
allowed the land in question for housing sites to be given to Government
employees in the year 1991, it must be presumed to have known about the
record and the revenue entries concerning the parcel of land made in the
ordinary course of official business. In as much as, the notice was issued
as late as on 31st December, 2004, it was delayed by nearly 13 years. No
explanation has been offered even for this delay assuming that the same
ought to be counted only from the year 1991. Judged from any angle the
notice seeking to reverse the entries made half a century ago, was clearly
beyond reasonable time and was rightly quashed.

13. Having said that we must make it clear that we have not gone into the
correctness of the alleged fraudulent entry nor have we expressed any
opinion whether, the quashing of the notice dated 21st December, 2004 would
prevent the State from taking such other steps as may be permissible under
any provision of law. The High Court has, as a matter of fact, made it
clear that the State Government shall be free to take any other steps or
proceedings in accordance with law qua the land in question. That liberty
should suffice for we have examined the matter only from the narrow angle
whether the Khasra Phani entry of 1954-55 could be corrected at this
belated stage in exercise of the revisional powers vested in the competent
authority under Section 166-B of the A.P. (Telangana Area) Land Revenue
Act. That question having been answered in the negative these appeals must
fail and are hereby dismissed leaving the parties to bear their own costs.

........................................J.

(T.S. THAKUR)

New Delhi

January 13, 2015

LAW FOR ALL

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Just for legal information but not form as legal opinion

Friday, January 16, 2015

CIVIL APPEAL NO. 346 OF 2015 (Arising out of S.L.P. (C) No. 1532 of 2014) JASMER SINGH ... APPELLANT VERSUS STATE OF HARYANA & ANR. ...RESPONDENTS

CIVIL APPEAL No. 324 OF 2015 (ARISING OUT OF SLP(C) No.14024/2013) Shasidhar & Others Appellant(s) VERSUS Smt. Ashwini Uma Mathad & Anr. Respondent(s)

Thursday, January 15, 2015

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